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FISHER'S DIGEST
OP
CRIMINAL LAW.
^
i
A DIGEST
or
TELE REPORTED CASES
(FROM 1766 TO 1870, INCLUSIVE,)
RELATING TO
t
CRIMINAL LAW,
CRIMINAL INFORMATION, AND EXTRADITION.
FoiTNiJED ON Harbison's Analytical Digest.
By Rl Ai Fisher, psq^,
Ov nuB MiDDLX Tkmpls, Baxbistbb at Law. .
9im |ranri$r0:
SXJMNER "WHITlSrEY & OO.
I 871,
EXCELSIOR PBESS:
Baoov h CoxPAKT, Prihtbrs
686 Clay Street.
This volume is a full reprint, from Mr. Fisher's Common Law Digest,
of the titles Criminal Law and Criminal Information, and will be found a
complete compendium of the English Law of Crimes and Punishments,
upon which our American Criminal Law is founded.
Some of the cases being based upon statutory provisions, it was
deemed wise to include the digests of statutory enactmeuts which precede
the notes of cases in Mr. Fisher's work and in this volume.
TUfe later decisions, from the tenth and eleventh volumes of Cox
Criminal Cases, have been added under their appropriate heads. Each
note has been compared with the original volumes of reports, and the
citations have been corrected and verified.
To prosecuting officers of the State and Federal Governments, and to
lawyers who make 'a specialty of Criminal Law, tliis volume will need
no other recommendations than the names of its compilers, Messrs. Har-
rison and Fisher, and the price at which it is offered.
A. H.
Sajt Fbjlscisco Law Librabt, )
November^ 1871. )
A. LIST
OF THB
Abbreviations Used and the Volumes Cited
IN THIS DIGEST.
A. & E Adolphas & Ellis Queen's Bonch.
Arn. & H Arnold & Iludges .... Qiieen*8 Bench.
B. & A Barnewall & AUIerson Kin^^'s Bench.
B. & Ad Barnewall & Adolphus Kind's H nch
B. & C Barnewall St Crcsswell King's Bench
B. C. C Biiil Court Cased — Lowndes & Maxwell.
B. C. Rep Bail Court Reports — Saunders & Cole . :
B.& S Best & Smith Qneen's Bench.
Bell's C. C Bell's Criminal Cases Criniinal Appeal.
Biojr Bingham Common Pleas.
B. & P Bosanqnet & Puller Common Pleas
B. L Botts' Poor Law
B. & B Broderip & Bmirham Common V\qm.
Bn>. P. C Brown's Cases in Parliament House of Lords.
Burr Burrow King's Bench.
C Lord Chancellor
Cald Caldecott's Settlement Cases Kin^^'s Bench.
Camp Campbell Nisi Prius.
Car. C. L Carrin^ton's Criminal Law
Car. & M Carrin^ton & Marshman Nisi Prius.
CL & R Carrington & Kerwan Ni>i Prius.
C. it P Carrington & Payne Nisi Prius.
Chit Chitty King's B-nch.
C. & F Clark & Finnelly Hou^«e of JjonU,
C B Common Bench Common Pleas.
C B. N. S Common Bench, New Series fScott^. . . Queen's Bench, C. P. Ex.
C. L. R Common Law Reports, 1 855-56 Queen'8 Bench, C. P. Ex.
Cowp Cowper King's Bench.
Cox Cox Chnncnry.
Cox C. C Cox Criminal Cases Crown & Crim. Appeal
C & J Crorapton & Jerris Exch€qu<'r.
C. & M Crompton & Meeson Exchequer.
D. & M Davison & Merivalo Queen's Bench.
Dears. C. C Dearsly's Crown Cases Criminal Appeal.
Deari. & B. C. C Dearsly & Bell's Crown Cases Criminal Appeal.
Den. C. C Denii^on Ex Chamber & Crim. Ap
Doofrl Donglas King's Bench.
D. P. C Dowling Practice Cases Queen's li^nch, C. P. Ex.
D. N. S Dowling's New Scries Queen's Bench, C. P. Ex.
D. & L Dowling & Lowndes Quoen'R Bench, C. P. Ex.
D. & R Dowling & Ryland King's Beiu li.
D. & R. N. P. C Dowling & Ryland Nisi Prius Cases.
Drew. & Sm Drewry & Smale Vice Chancellors.
East East King's Bench.
East 1\ C East Pleas of the Crown
El. & Bl Ellis & Blackburn Qneen's Bench.
£1., Bl. & £1 Ellis, Blackburn & Ellis Queen's Bench.
El. & £1 Elli;9& Ellis Queen's Bench.
1
viii LIST OF ABBREVIAlTONS.
Esp Espinasse Nisi Prias.
Exch Exchequer Reports fWclsby, H. & G J . Exchequer.
Exch. Cham Exchequer Chamber
F. & F '. Foster & FiDlason Nisi Prius.
Gale Gale Exchequer.
G. & D Gale & Davison Exchequer.
Gow Gow Nisi Prius.
H. Bl Henry Blackstone Common Pleas.
H. & R Harrison & Rutherford. Common Pleas.
Holt Holt NiKi Prius.
H. & N Hurlstone & Norman Exchequer.
H. & W Hurlstone & Walmslev- Exchequer.
Ir. C. L Irish Common Law, Series of 1 867 ....
Ir. C. L. R Irish Common Law Reports
Jur Jurist All the Courts.
Jur., N. S Jurist, New Series
Kay Kay Vice Chancellor.
K. & J Kay & Johnson Vice Chancellor.
Ld. Kcnyon Lord Kenyon's Notes of Cases King's Bench.
L. J. Chan Law Journal, New Series Chancery.
L. J. C. P Law Journal Common Pleas.
L. J. Exch Law Journal Exchequer.
L. J. M. C Law Journal .Magistrate's Cases.
L. R. C. C Law Reports Crown Cases, Resenred.
L. T. N. S Law Times, New Series All the Courts.
Leach C. C Leach Crown Cases
L. & C. C. C Leigh & Cave, Crown Cases .Exchequer Chamber.
Lewin C. C Lewin's Crown Cases. Crown.
Loffl Loffk King's Bench.
L. M. & P Lowndes, Maxwell & Pollock Bail Court.
M. & G Manning & Granger. Common Pleas.
M. & W Meeson & Welsby Exchequer.
M. C. C Moody Crown Cases Exchequer Chamber.
M. & M Moody & Malkin Nisi Prius.
M. & P Moore & Payne Common Pleas.
M. & Rob Moody & Robinson Nisi Prius.
M. & R Manning & Ryland King's Bench.
M. & S Maule & Selwyn , King's Bench.
Marsh Marshall Common Pleas.
Moore J. B. Moore Common Pleas.
Moore P. C. C Moore's Privy Council Cases Privy CouncU.
Moore P. C. C. N. S . .Moore's Privy Council Cases, New Series
N. R Bosanquet & Puller, New Reports Common Pleas.
N. & M Nevlle & Manning King's Bench.
N. & P Nevile & Perry Queen's Bench.
New Sess. Cas Carrow, Hamerton & Allen All the Courts.
Peake Peake Ni.si Prius.
P. & D Perry & Davison Queen's Bench.
Price Price Exchequer.
Q. B Queen's Bench fAdolphus & Ellis, N. S.;
Rallw. Cas Railway Cases (Nicholl^ Hare and others) All the Courts.
Russ. C. & M Russell on Crimes and Misdemeanors. .
R & R. C. C Russell & Ryan Crown Cases.
R. & M Ryan & Moody Nisi Prius.
Scott N. R Scott New Reports Common Pleas.
Selw. N. P Selwyn's Nisi Prius.
Sim. N. S Simon's New Series Chancery.
Smith Smith King's Bench.
Stark Starkie Nisi Prius.
Tauftt Taunton Common Pleas.
T. R Term Reports, Dumsford & East King's Bench.
T. & M Temple & Mew Criminal Appeal.
Ves Vesey Chancery.
W. W. & D' - Willmore, Wollaston & Davison Queen's Bench.
W. W. & il Willmore, Wollaston & Hodges Queen's Bench.
Wils Wilson King's Bench & C. P.
W. Bl Sir William Blackstone King's Bench & C. P.
V. B Weekly Reporter All the Courts.
TABLE OF CONTENTS.
CRDflXAL INFORMATION.
L Whbx grakted.
1. General Principles, I *
8. Ex-offieio bjf the Attomof-Gen-
eral, 2.
3. For Libellous Publications, 2.
(a) WhcU<ire,2.
(b) Who entitled to, 3,
{ c ) Necessarif Affidavits, 4 .
(d) Proof of Publication, 4.
(e) Porm and Validity of In-
formation f 5.
(f ) Justifying Publication, 6.
(p) Costs, 7.
4. Against Magistrates, 7.
(i\) Grounds, 7.
(b) 7*ifii€ of Application, 9.
( c ) Notice of Application, 9.
5. Sending a ChaUenge, 10.
6. Against Parish Officers, 1 1.
7. /n OM«r Cases, 11.
8. Application for Information, 13.
9. Time, 13.
10. Affidavits, 13.
11. OrA«r Points of Practice, 15.
12. cuts, 16.
13. Cbfinidton, 16.
CRDHNAL LAW.
I. Pebsons capable of com-
mitting Crimes and Mis-
demeanors.
1. Agents, 17.
2. Insane Persons, 17.
3. Deaf and Dumb, 21.
4. Presumed Coercion of Wife, 22.
5. Drunkards, 23.
6. Foreigners, 23.
7. Corporations, 24.
8. Infants, 24.
9. Peers, 24.
10. Persons under CompuUion, 24.
n. Principals, Accessories and
Abettors.
1. Principals, 2.").
2. Accessories, 26.
3. Abettors, 28.
4. Tna/, 28.
6. Indictment, 29.
6. Evidence, 30.
ni. Abduction op Women and
Children.
1. Women, 31.
2. Children, 34.
8. Indictment, 35.
4. Evidence, 35.
rV. Adulteration op Food and
Drink.
1 . Selling Unwholesome Provisions, 85
2. Engrossing or Regretting, 36.
V. Arson and Burning.
1. Statutes, 36.
2. The Offence, 36.
3. Phces of Divine Worship, 37.
4. Dwelling-houses with Persons there-
in, 38.
5. What Houses or Buildims, 38.
6. Railway Stations and Buildings,
. . 7. Public Buildings, 40. [40.
8. Other Buildings, 40.
9. Property in Buildings, 41.
1 0. By Gunpowder and Explosive Sulh
stances, 41.
11. Crops, Stacks or Woods, 42,
12. Coal and other Mines, 43.
13. Parties Indictable, 44.
14. Indictment, 44.
15. Evidence, 45.
VI. Assault and Battery.
1. Common, 47.
2. On Clergymen or Ministers of Re^
ligion, 49.
viii LIST OF ABBREVIAtlONS.
Esp Eapinasse Nisi Prius.
Exch Exchequer Reports (WeUhy, H. & G.^ . Exchequer.
Exch. Cham Exchequer Chamber
F. & Jf '. Foster & Finlason Nisi Prius.
€rale Gale .Exchequer.
G. & D Gale & Davison Exchequer.
Gow Gow Nisi Prius.
H. Bl Henry Blackstone Common Pleas.
H. & R Harrison & Rutherford Common Pleas.
Holt. Holt Nisi Prius.
H. & N Hurlstone & Norman Exchequer.
H. & W Hurlstone & Walmsley. Exchequer.
Ir. C. L Irish Common Law, Series of 1867. . . .
Ir. C. L. R Irish Common Law Reports
Jur Jurist All the Courts.
Jnr., N. S Jurist, New Series
Kay Kay Vice Chancellor.
K. & J Kay & Johnson Vice Chancellor.
Ld. Kcnyon .Lord Kenyon's Notes of Cases King's Bench.
L. J. Chan Law Journal, New Series Chancery.
L. J. C. P Law Journal Common Pleas.
L. J. Exch .Law Journal Exchequer.
L. J. M. C Law Journal Magistrate's Cases.
L. R. C. C Law Reports Crown Cases, Reserved.
L. T. N. S Law Times, New Series All the Courts.
Leach C. C Leach Crown Cases
L. & C. C. C Leigh & Cave, Crown Cases Exchequer Chamber.
Lewin C. C Lewin's Crown Cases Crown.
Loflt Loffk King's Bench.
L. M. & P Lowndes, Maxwell & Pollock Bail Court.
M. & G Manning & Granger.. Common Pleas.
M. & W Meeson & Welsby Exchequer.
M. C. C Moody Crown Cases Exchequer Chamber.
M. & M Moody & Malkin Nisi Prius.
M. & P Moore & Payne Common Pleas.
M. & Rob Moody & Robinson Nisi Prius.
M. & R Manning & Ryland King's Bench.
M. & S Manle & Selwyn King's Bench.
Marsh Marshall Common Pleas.
Moore J. B. Moore Common Pleas.
Moore P. C. C Moore's Privy Council Cases Privy Council.
Moore P. C. C. N. S. .Moore's Privy Council Cases, New Series
N. R Bosanquet & Puller, New Reports Common Pleas.
N. & M Nevile & Manning King's Bench.
N. & P Nevile & Perry Queen's Bench.
New Sess. Cas Carrow, Hamerton & Allen All the Court?.
Peake Peake Nisi Prius.
P. & D Perry & Davison Queen's Bench.
Price Price Exchequer.
Q. B Queen's Bench C Adolphus & Ellis, N. S,)
Railw. Cas Railway Cases (Nicholl, Hare and others) All the Courts.
Russ. C. & M Russell on Crimes and Misdemeanors. .
R & R. C. C Russell & Ryan Crown Cases.
R. & M Ryan & Moody Nisi Prius.
Scott N. R Scott New Reports Common Pleas.
Selw. N. P Selwyn's Nisi Prius.
Sim. N. S Simon's New Series Chancery.
Smith Smith King's Bench.
Stark Starkie Nisi Prius.
Tauftt Taunton Common Pleas.
T. R Term Reports, Dumsford & East King's Bench.
T. &M Temple & Mew Criminal Appeal.
Ves Vesey Chancery.
W. W. & P* ^ Willmore, Wollaston & Davison Queen's Bench.
W. W. & il Willmore, Wollaston & Hodges Queen's Bench.
Wils Wilson King's Bench & C. P.
W. Bl Sir William Blackstone King's Bench & C. P.
W. B Weekly Reporter All the Courts.
TABLE OF CONTENTS.
CRIMINAL mrORMATION.
L When gkanted.
1. General Principles, I.
2. Ex-officio bjf the Attomof-Gen-
eml, 2.
3. For Libellous Publications, 2.
(a) What are, 2.
(b) Who entitled to, 3.
(c) Necessanf Affidavits, 4.
(d) Proof of Publication, 4.
(e) Form and Validity of In-
formation, 5.
(f ) Justifying Publicatum, 6.
(p) Costs, 7.
4. Against Magistrates, 7.
(ii) Grounds, 7.
jb) T'imc of Application, 9.
( c ) iVirf/ce o/" Application, 9.
5. Sending a ChaUenge, VO.
6. Against Parish Officers, 11.
7. /n OM£r Cb«», 11.
8. Application for Information, 13.
9. Time, 13.
10. Affidavits, IS.
1 1. OrAer PoiVitt of Practice, 15.
12. O^sts, 16.
13. Conviction, 16.
CRDHNAL LAW.
I. Pebsoxs capable of com-
MTITING CbIMES AND MlS-
BEHEAXOBS.
1. Agents, 17.
2. Insane Persons, 17.
3. Deaf and Dumb, 21.
4. Presumed Coercion of Wife, 22.
5. Drunkards, 23.
6. Foreigners, 23.
7. Corporations, 24.
a Infants, 24.
9. Peers, 24.
10. Persons under Compulsion, 24.
n. Pbincipals, Accessobies and
Abettobs.
1. Principals, 25.
2. Acceswries, 26.
3. Abettors, 28.
4. rnW, 28.
5. Indictment, 29.
6. Evidence, 30.
in. Abduction op Women and
Childeen.
1. Women, 31.
2. Children, 34.
3. Indictment, 35.
4. Evidence, 35.
rV. Adultebation op Food and
Dbink.
1 . Selling Unwholesome Provisions, 35
2. Engrossing or Regraiing, 36.
V. Arson and Bubning.
1. Statutes, 36.
2. The Offence, 36.
3. Places of Divine Worship, 37.
4. Dwelling-houses unth Persons there-
in, 38.
5. What Houses or Buildinas,3S.
6. Railway Stations and Buildings,
. . 7. Public Buildings, 40. [40.
8. Other Buildings, 40.
9. Property in auHdings, 41.
1 0. By Gunpowder and Explosive Sub-
stantxs, 41.
11. Crops, Stacks or Woods, 42,
12. Coal and other Mines, 43.
13. Parties Indictable, 44.
14. Indictment, 44.
15. Evidence, 45.
VL Assault and Batteey.
1. Common, 47.
2. On Clergymen or Ministers of Rb'
ligion, 49.
viu LIST OF ABBREVIAtlONS.
Esp Espinasse Nisi Prias.
Exch Exchequer Reports fWeUby, H. & G J . Exchequer.
Exch. Cham Exchequer Chamber
F. & if '. Foster & FiDlason Nisi Prius.
Gale Gale ^...Exchequer.
G. & D Gale & Davison Exchequer.
Grow Gow Nisi Prius.
H. Bi Henry Blackstone Common Pleas.
H. & R Harrison & Rutherford Common Pleas.
Holt Holt Nisi Prius.
H. & N Hurlstone & Norman Exchequer.
H. & W Hurlstone & Walmslev- Exchequer.
Ir. C. L Irish Common Law, ^ries of 1867. . . .
Ir. C. L. R Irish Common Law Reports
Jnr Jurist All the Courts.
Jur., N. S Juristi New Series
Kay Kay Vice Chancellor.
K. & J Kay & Johnson Vice Chancellor.
Ld. Kenyon Lord Kenyon's Notes of Cases King's Bench.
L. J. Chan Law Journal, New Series Chancery.
L. J. C. P Law Journal Common Pleas.
L. J. Exch Law Journal Exchequer.
L. J. M. C Law Journal Magistnite's Cases.
L. R. C. C Law Reports Crown Cases, Resenred.
L. T. N. S Law Times, New Series All the Courts.
Leach C. C Leach Crown Cases
L. & C. C. C Leigh & Cave, Crown Cases Exchequer Chamber.
Lewin C. C Lewin's Crown Cases.. Crown.
Loffl Lofft King's Bench.
L. M. & P Lowndes, Maxwell & Pollock Bail Court.
M. & G Manning & Granger.. « Common Pleas.
M. & W Mceson & VVelsby Exchequer.
M. C. C Moody Crown Cases Exchequer Chamber.
M. & M Moody & Malkin Nisi Prius.
M. & P Moore & Payne Common Pleas.
M. & Rob Mood^ & Robinson Nisi Prius.
M. & R Mannmg & Ryland King's Bench.
M. & S Maule & Selwyn King's Bench.
Marsh Marshall Common Pleas.
Moore J. B. Moore Common Pleas.
Moore P. C. C Moore's Privy Council Cases Privy Council.
Moore P. C. C. N. S . .Moore's Privy Council Cases, New Series
N. R Bosanquet & Puller, New Reports Common Pleas.
N. & M Nevile & Manning King's Bench.
N. & P Nevile & Perry Queen's Bench.
New Seas. Cas. Carrow, Hamerton & Allen All the Courts.
Peake Peake Ni>:i Prius.
P. & D Perry & Davison Queen's Bench.
Price Price Exchequer.
Q. B Queen's Bench fAdolphus & Ellis, N. S.J
Railw. Cas Railway Cases (Nicholl^ Hare and others) All the Courts.
Rnss. C. & M Russell on Crimes and Misdemeanors. .
R.&R.C. C Russell & Ryan Crown Cases.
R. & M Ryan & Moody Nisi Prius.
Scott N. R Scott New Reports Common Pleas.
Selw. N. P Selwyn's Nisi Prius.
Sim. N. S Simon's New Series Chancery.
Smith Smith King's Bench.
Stark Starkie Nisi Prius.
Taunt Taunton Common Pleas.
T. R Term Reports, Dumsford & East King's Bench.
T. &M Temple & Mew Criminal Appeal.
Ves Vesey Chancery.
W. W. & P" ^ Willmore, WoUaston & Davison Queen's Bench.
W. W. & il Willmore, WoUaston & Hodges Queen's Bench.
Wils Wilson King's Bench & C. P.
W. Bl Sir William Blackstone King's Bench & 0. P.
W. B Weekly Reporter All the Courts.
TABLE OF CONTENTS,
CRIMINAL INFORMATION.
L Whek gkanted.
1. General Principles^ I.
2. JEx-officio by Uu Aitomey-Gen-
ercU, 2.
3. Far Libellous Publications, 2.
(a) What are, 2.
(b) Who entitled (0,3.
ic) Necessary Affidavits, A.
d) Proof of Publication, A,
(e) Form and Validity of In-
formation, 5.
(f) Justifying Publication, 6.
(p) Costs,!.
4. Against Magistrates, 7.
(f^) Grounds, 7.
(b) Time of Application, 9.
( c ) Notice of Applicationy 9.
5. Sending a ChaUenge, 10.
6. Against Parish Officers, II.
7. In Other Cases, 11.
8. Application for Information, 13.
9. Time, 13.
10. Affidavits, 13.
1 ! . Other Points of Practice, 1 5,
12. OfSts, 16.
13. Ckmviction, 16.
CRDIINAL LAW.
I. Pebsons capable of com-
MTiTiNG Crimes and Mis-
demeanors.
1. Agents, 17.
2. Insane Persons, 17.
3. Deaf and Dumb, 21.
4. Presumed Coercion of Wife, 22.
5. Drunkards, 23.
6. Foreigners, 23.
7. Corporations, 24.
8. Infants, 24.
9. Pars, 24.
10. Persons under Qmpuhion, 24.
n. Principals, Accessories and
Abettors.
1. Principals, 2.").
2. Accessories, 26.
3. Abettors, 28.
4. Tna/, 28.
6. Indictment, 29.
6. Evidence, 30.
in. Abduction op Women and
Children.
1. Women, 31.
2. Children, 34.
3. Indictment, 35.
4. Evidence, 35.
rV. Adulteration op Food and
Drink.
1 . Selling Unwholesome Provisions, 85
2. Engrossing or Regrating, 36.
V. Arson and Burning.
1. Statutes, 36.
2. rA« Offence, 36.
3. P/acc8 o^ Dtwin« Wor^ip, 37.
4. Dwelling-houses with Persons there-
in, 38.
5. What Houses or Buildinas, 38.
6. Railway Stations and Buildings,
. . 7. Public BuUdings, 40. [40.
8. 0/Aer Buildinas, 40.
9. Property in Buildings, 41 .
10. By Gunpowder and Explosive Sub'
stances, 41.
11. CVo/M, Stacks or Woods, 42,
12. Coal and other Mines, 43.
13. Parties Indictable, 44,
14. Indictment, 44.
15. Evidence, 45.
VI. Assault and Battery,
1. Common, 47.
2. On Clergymen or Ministers of Re'
ligion, 49.
viii LIST OF ABBREVIAtlONS.
Ebp Espinasse Nisi Prios.
Exch Exchequer Reports C Wclsby, H. & G.) . Exchequer.
Exch. Cham Exchequer Chamber
F. & Jf \ Fost^ & Fiolason Nisi Prius.
Gale Grale ^. . .Exchequer.
6. & D Gale & Darison Exchequer.
Grow Gow Nisi Prius.
H. Bl Henry Blackstone Common Pleas.
H. & B Harrison & Rutherford Common Pleas.
Holt Holt Nisi Piius.
H. & N Hurlstone & Norman Exchequer.
H. & W Hurlstone & Walmslev- Exchequer.
Ir. C. L Irish Common Law, ^ries of 1 867 ....
Ir. C. L. R Irish Common Law Reports
Jnr Jurist All the Courts.
Jur., N. S Juristi New Series
Kay Kay Vice Chancellor.
K. & J Kay & Johnson Vice Chancellor.
Ld. Kcnyon Lord Kenyon's Notes of Cases King's Bench.
L. J. Chan Law Journal, New Scries Chancery.
L. J. C. P Law Journal Common Pleas.
L. J. Exch Law Journal Exchequer.
L. J. M. C Law Journal Magistrate's Cases.
L. R. C. C Law Reports Crown Cases, Reseired.
L. T. N. S Law Times, New Series All the Courts.
Leach C. C Leach Crown Cases
L. & C. C. C Leigh & Cave, Crown Cases : . . .Exchequer Chamber.
Lewin C. C Lewin's Crown Cases.. Crown.
Lofil Loffb King's Bench.
L. M. & P .Lowndes, Maxwell & Pollock Bail Court.
M. & G Manning & Granger « Common Pleas.
M. & W Mceson & VVelsby Exchequer.
M. C. C Moody Crown Cases Exchequer Chamber.
M. & M Moody & Malkin Nisi Prius.
M. & P Moore & Payne Common Pleas.
M. & Rob Moody & Robinson Nisi Prius.
M. & R Manning & Ryland King's Bench.
M. & S Maule & Selwyn King's Bench.
Marsh Marshall Common Pleas.
Moore J. B. Moore Common Pleas.
Moore P. C. C Moore's Privy Council Cases Privy CouncU.
Moore P. C. C N. S. .Moore's Privy Council Cases, New Series
N. R Bosanquet & Puller, New Reports Common Pleas.
N. & M Nevlle & Manning King's Bench.
N. & P Nevile & Perry Queen's Bench.
New Seas. Cas. Carrow, Hamerton & Allen All the Court?.
Peake Peake Niiii Prius.
P. & D Perry & Davison Queen's Bench.
Price Price Exchequer.
Q. B Queen's Bench fAdolphus & Ellis, N. S.)
Rail w. Cas Railway Cases ( Nicholl^ Hare and others) All the Courts.
Russ. C. & M Russell on Crimes and Misdemeanors. .
R. & R. C. C Russell & Ryan Crown Cases.
R. & M Ryan & Moody Nisi Prius.
Scott N. R Scott New Reports Common Pleas.
Selw. N. P Selwyn's Nisi Prius.
Sim. N. S Simon's New Series Chancery.
Smith Smith King's Bench.
Stark Starkie Nisi Prius.
Taunt Taunton Common Pleaa.
T. R Term Reports, Dumsford & East King's Bench.
T. &M Temple & Mew Criminal Appeal.
Ves Vesey Chancery.
W. W. & P' ^ Willmore, Wollaston & Davison Queen's Bench.
W. W. & ii Willmore, Wollaston & Hodges Queen's Bench.
Wils Wilson King's Bench & C. P.
W. Bl Sir William Blackstone King's Bench & C. P.
W. B Weekly Reporter All the Courts.
TABLE OF CONTENTS.
CRIMINAL INFORMATION.
L WlTEN GRAOTTEI).
1. General PrincipleSfl.
2. Er-officio bjf the Attomaf-Gen-
ercU, 2.
3. For Libellous PublicationB, 2.
(a) What are, 2,
(b) Who entitled to,:^.
( c ) Necessary Affidavits, 4 .
(d) Proof of Publication, 4.
(e) Form and Validity of In-
formation f 5.
(f) Justifying Publication,^,
(p) Costs, 7.
4. Against Magistrates, 7.
(a) Grounds, 7.
(b) Time of Application, 9.
(c) Notice of Application, 9.
5. Sending a Challenge, 10.
6. Against Parish Officers, II.
7. /ft OMct- Cbs», II.
8. Application for Information, 13.
9. Tiine, 13.
10. Affidavits, 13.
1 1 . OrA«r Points of Practice, 1 5.
12. Costs, 16.
13. Cbnpidion, 16.
CRDIINAL LAW.
I. Pebsons capable op com-
1111X11X0 C:^MES AND MlS-
DEMEANOBS.
1. Agents, 17.
2. Insane Persons, 17.
3. Deaf and Dumb, 21.
4. Presumed Coercion of Wife, 22.
5. Drunkards, 23.
6. Foreigners, 23.
7. Corporations, 24.
& InfanU, 24.
9. fW«, 24.
10. Persons under Compulsion, 24.
n. Principals, Accessobies and
Abettobs.
1. Principals, 2.").
2. ilcce5M7n'e8, 26.
3. Abettors, 28.
4. Trial, 28.
6. Indictment, 29.
6. Evidence, 30.
in. Abduction op Women and
Children.
1. Women, 3\.
2. Children, 3A.
3. Indictment, 35.
4. Evidence, 35.
rV. Adultebation op Food and
Dbink.
1 . Selling Unwholesome Provisions, 35
2. Engrossing or Regretting, 36.
V. Arson and Bubning.
1. Statutes, 3%.
2. TAe 0/r<jnc€, 36.
3. Places of Divine Worship, 37.
4. Dwelling-houses with Persons there-
in, 38.
5. What Houses or BuildinQ8,3S,
6. Railway Stations and Buildings,
. . 7. PuWic Buildings, 40. [40.
8. 0/Aer Buildings, 40.
9. Property in BuildinM, 41.
10. iBy Gunpowder and Explosive Sulh
stances, 41.
11. CVo/M, Stacks or Woods, 42.
12. CW and other Mines, 43.
13. Parties Indictable, 44.
14. Indictment, 44.
15. Evidence, 45.
VI. Assault and Battery.
1. Common, 47.
2. On Clergymen or Ministers of jR«-
^i^iOA, 49.
viii LIST OF ABBREVIAtlONS.
Esp Espinasse Nisi Prias.
Exch Exchequer Reports (WeUhy, H. & G.^ . Exchequer.
Exch. Cham Exchequer Chamber
F. & Jf '. Fost^ & Finlason Nisi Prius.
Gale Gale r . . .Exchequer.
G. & D Gale & Darison Exchequer.
Gow Gow Nisi Prius.
' H. Bl Henry Blackstone Common Pleas.
H. & R Harrison & Rutherford Common Pleas.
Holt Holt Nisi Prius.
H. & N Hurlstone & Norman Exchequer.
H. & W Hurlstone & Walmsley- Exchequer.
Ir. C. L Irish Common Law, Series of 1867. . . .
Ir. C. L. R Irish Common Law Reports
Jur Jurist All the Conrts.
Jur., N. S Jurist, New Series
Kay Kay Vice Chancellor.
K. & J Kay & Johnson Vice Chancellor.
Ld. Kcnyon Lord Kenyon's Notes of Cases King's Bench.
L. J. Chan Law Journal, New Series Chancery.
L. J. C. P Law Journal Common Pleas.
L. J. Exch Law Journal Exchequer.
L. J. M. C Law Journal Magistrate's Cases.
L. R. C. C Law Reports Crown Cases, Reserved.
L. T. N. S Law Times, New Series All the Courts.
Leach C. C Leach Crown Cases
L. & C. C. C Leigh & Cave, Crown Cases .Exchequer Chamber.
Lewin C. C Lewin's Crown Cases.. .Crown.
Loffl Lofft King's Bench.
L. M. & P Lowndes, Maxwell & Pollock Bail Court.
M. & G Manning & Granger Common Pleas.
M. & W Meeson & VVelsby Exchequer.
M. C. C Moody Crown Cases Exchequer Chamber.
M. & M Moody & Malkin Nisi Prius.
M. & P Moore & Payne Common Pleas.
M. & Rob Moodf & Robinson Nisi Prius.
M. & R Manning & Ryland King's Bench.
M. & S Maule& Selwyn King's Bench.
Marsh Marshall Common Pleas.
Moore J. B. Moore Common Pleas.
Moore P. C. C Moore's Privy Council Cases Privy Council.
Moore P. C. C. N. S . . Moore's Privy Council Cases, New Series
N. R .Bosanquet & Puller, New Reports Common Pleas.
N. & M Nevile & Manning King's Bench.
N. & P Nevile & Perry Queen's Bench.
New Sess. Cas Carrow, Hamerton & Allen All the Courts.
Peake Peake Ni^^i Prius.
P. & D Perry & Davison Queen's Bench.
Price Price Exchequer.
Q. B Queen's Bench CAdolphus & Ellis, N. S.)
Railw. Cas Railway Cases (Nicholl^ Hare and others) All the Conrts.
Russ. C. & M Russell on Crimes and Misdemeanors. .
R. & R. C. C Russell & Ryan Crown Cases.
R. & M Ryan & Moody Nisi Prius.
Scott N. R Scott New Reports Common Pleas.
Selw. N. P Selwyn's Nisi Prius.
Sim. N. S Simon's New Series Chancery.
Smith Smith King's Bench.
Stark Starkie Nisi Prius.
Taunt Taunton Common Pleas.
T. R Term Reports, Dumsford & East King's Bench.
T. &M Temple & Mow Criminal Appeal.
Ves Vesey Chancery.
W. W. & P' - Willmore, Wollaston & Davison Queen's Bench.
W. W. & ii Willmore, Wollaston & Hodges Queen's Bench.
Wils Wilson King's Bench & C. P.
W. Bl Sir William Blackstone King's Bench & 0. P.
W. R Weekly Reporter All the Courts.
TABLE OF CONTENTS.
CRIMINAL INFORMATION.
L WlTEK GRANTEI).
1. General Principles^ I .
2. Ex-offido bif the Attomof-Gen-
ercU, 2.
3. For Libellous Publications, 2.
(a) What are, 2.
(h) Wlu> entitled to, 3,
(c) Necessary Affidavits, 4.
(d) Proof of Publication, A,
(e) Form and Validity of In^
fbnnation, 5.
(f) Justifying Publication, %,
(p) Cosis, 7.
4. Against Magistrates, 7.
(a) Grounds, 7.
(b) Time of Application, 9.
( c ) Notice of Application, 9.
5. Sending a Challenge, 10.
6. Against Parish Officers, 11.
7. /n OMct- Cb«e», 11.
8. Application for Information, 13.
9. Time, 13.
10. Affidavits, 13.
1 ! . OMer Points of Practice, 15.
12. CUte, 16.
13. Conviction, 16.
CRIMINAL LAW.
I. Peesons capable op com-
MTTTiNG Crimes and Mis-
DEMEANOBS.
1. Agents, 17.
2. Insane Persons, 17.
3. Deaf and Dumb, 21.
4. Presumed Coercion of Wife, 22.
5. Drunkards, 23.
6. Foreigners, 23.
7. Corporations, 24.
8. Infants, 24.
9. Peer*, 24.
10. Persons under QmpuUian, 24.
n. Principals, Accessories and
Abettors.
1. Principalis 25.
2. Accessories, 26.
3. Abettors, 28.
4. rnW, 28.
6. Indictment, 29.
6. Evidence, 30.
in. Abduction op Women and
Children.
1. Women, 31.
2. Children, 3\.
3. Indictment, 35.
4. Evidence, 35.
rV. Adulteration op Food and
Drink.
1 . Selling Unwholesome Provisions, 85
2. Engrossing or Regretting, 36.
V. Arson and Burning.
1 . Statutes, 36.
2. TAe O/Tcnce, 36.
3. Places of Divine Worship, 37.
4. Dwelling-houses with Persons there-
in, 38.
5. What Houses or BuildinQS,3S.
6. Railway Stations and Buildings,
. . 7. Public Buildings, 40. [40.
8. Other Buildings, 40.
9. Property in Buildings, 41.
10. By Gunpowder and Explosive Sub-
stances, 41.
11. Crops, Stacks or Woods, 42,
12. Coal and other Mines, 43.
13. Parties Indictable, 44.
14. Indictment, 44.
15. Evidence, 45.
VI. Assault and Battery.
1. Common, 47.
2. On Clergymen or Ministers of jK«-
%ion, 49.
TABLE OF CONTENTS.
3. On AtagiatraUs or other PertonB
nrofrving Wrecks ^ 49.
4. On P*ace and other Officen in Ex-
ecution%of Ouhff 49. [52.
5. On Seamen t Keilmen or Casten^
6. On obstructing Sale of Grain or its
fren Passage, 52.
7. Arising from Trade Combinations
or Conspiracies, 52. [52.
8. Occasioning actual Bodily harm,
9. Indictment and Etddence, 53.
10. Punishment, 54.
1 1 . Custs of Prosecution, 54.
12. Sammarg Convictions, 54.
(ii) Statute, 54. [56.
(h) Complainant or Informant,
(c) Hearing and Certificate, 56.
(d) Aggravated upon Wonumcuid
Children, 57.
(t*) Amounting to Felony, 58.
(f ) Pints, 58.
13. Indecent and with Intent to ravish
— See Uapb, Aburr and Db-
FILBMBNT OF WoMBK AMD
ClIILDRKN.
14. With Intent to rob^See Bob-
BKKT.
VTL Bigamy.
1. The Offence, 59.
2. On Absence or Death of Parties,
3. Wh^e Trialde, 64. [62.
4. Indict mmt, 64.
5. Evidence and Witnesses, 65.
\JL11. BueglabyaxdHouskbbkak-
ING.
1. Statutes, 66.
2. Breaking and Entering, 67.
3. Breaking out, 68.
4. By Lodgers, 69.
5. What is Niaht-time, 69.
6. What is a Dwelling-house, 69.
7. What is not a Dwelling-house, 71.
8. Breaking into Churches and Places
of Divim Worship, 72.
9. Ihe Curtilage, 73.
10. Ownership, 74.
11. Intent, 75. [76.
12. A nnetl with Intent to brenk or enter,
13. Stealing in a Dwelling-house, 77.
14. In Scliools, Shops, Warehouses or
Counting-housfS, 78.
15. Part its Indictable, 79.
16. Indictment, 79.
17. Evidence and Trial, 81.
IX. Coining.
1. Statutes, 82.
2. Inter prdat'on, 82.
3. Whiit is Coining, 83.
4. Colouring, 85.
5. Impairing or Lightening Gold or
Silver Coin, 85. 186.
6. Buying or Selling Counterfeit Coin,
7. Exrhanging Com at higher than its
Value, 87.
8. Importing or Exporting Counterfeit
Coin, 87.
9. Dffacing Gold, Silver or Copper
Coin, 87.
10. Testing Genuineness of Gold or
Silver Coin, 87.
1 1. Counterfeiting and uttering Copper
Coin, 88.
1 2. Counterfeiting and uttering Foreign
Coin, 89.
13. Implements of Coining, 90.
14. Unlawful Possession of Base Coin,
Filings or Clippings, 93.
15. Uttering, 94.
16. When Offence complete, 97.
17. Endencf, 98.
18. Previous Conviction, 98.
19. Validity of Convictions and Com-
mitments, 99.
20. Conveying Coining TooJs or Coin
from the Mint without Authority,
99.
21 . Poiver to seize Counterfeit Coin and
Coining Tools, 99.
22. Apfnrehension of Offenders, 99.
23. Prosecution and 2 rial of Offen-
ders, 100.
24. Punishment of Offenders, 100.
25. Costs of Prosecution, loo.
26. Actions against Persons dieting in
pursuance of the Statute, 101.
X. CoNCEALMBJn? OF THE BiBTH
OP Children.
1. The Offence, 101.
2. Indiftment, 104.
3. Evidence, 105.
XL CONFPIBACT.
1. The Offence, 105.
2. Trade Combinations, 107.
3. Parties IndicUib'e, 109.
4. Indictment, 109.
5. Particidars of Overt Acts, 113.
6. Evidence, 11*3.
7. Trial and Verdict, 117.
8. New Trial, 118.
Xn. Duelling, 118.
Xm. Embezzt.emekt by Clbbks
AND SeBVANTS.
1. The Offence, 118.
2. Amounting to Larceny, or Embez-
zlement, 134.
3. Indictment, 136.
4. Particulars of Charges, 137.
5. Evidence, 138.
TABLE OF CONTENTS.
XI
XIV. EaiBEZZLKMEXT AND FrAUDS
isY Agexts, Bankers,
Tru.stees and Otuers.
1. Aqenfg and Bankers, 139.
2. Tntgtees, 142.
3. Dt'ncfors, M* mliers and Officers oj
Companies, 143.
4. Disdtnture oJ' Circumstances, 144.
5. Jurisdiction of Quarter Sessions,
144.
6. Btf Traders.
XV. False Pretences and
Cheats.
1. Sfatufes, 145.
2. What are, 146.
(«) Gfneial Pn'ncipfes, 146.
(b) By means of False Orders,
151.
(c) By means ofFedse Accounts,
152.
(d) By means of Contracts, 153.
jc) As to the Quality of Articles
of Merchandise,, 155.
(f ) As toth- Quantity or Weight
of A rticles of Merchandise,
1.56. [158.
(?) <B!y Promises of Marriage,
(ii) /i|y mfans of Cheaues, Bilts
of Exchange or Promissoiy
Nofes, 158.
(i) By jMtssing off" Flash or
IVortJiUss Bank Notes,
160.
( j ) In respect of whit Chattels or
Securities, 161.
3. Chmts, 1G2.
4. Inducing persons Ity Fraud to exe-
cute oar destroy Valuable Securities.
5. A monntiiig to Larceny, 1 63. [ 1 62 .
6. Parties Indictable, 164.
7. Indictment, 164.
8. Evidence, 167.
9. Trial, 169.
10. RfCfivinq Property obtained by
False Pretences, i70.
XVL Forcible Entry and De-
tainer, 170.
XVJLL Forgery.
1. Statu'es, 173.
2. What is Forgery, 174.
8. The Instrument, 176.
(a) Bank Notes, 176,
(U) Bills of Exchange and Pro-
missory Notes, 182.
(c) Cheques, 188.
(d) Dotuments purporting to be
made. Ahroaa, 189.
fc; Court Rolls, 190.
(f) Debentures, 190.
(/) Deeds or Bmds, 190.
(\\) Enidenfial lmtruments,\^\.
(\) Exrhequer Bills or Bonds,
• 191.
Q) India Bonds, Stock or Cer-
tificates, 193.
(k^ Marriage Licenses and Cer-
ti/icates, 193.
(\) Orders and Proceedings of
. M'igistrotes, 193.
(m) Records, Judirid and Cu-
rial Procejts, \ 94.
fn) Registers of Births, Mar-
riages and Dettths, 1 96.
fo } Registries of Det ds, 197.
(p) Seals of the Kingdom, 197.
(i\) Stamj}S, 198.
(r) Trade Marks, 199.
(») Transfer of Stock or Shares,
199.
(t) Warrants, Orders, Under-
takings, Requests and Re-
ceipts for Goods or for
Money', 201.
fn) Tri//»,212.
(v) Instruments o'herwise design
noted, 2\ 3.
4. Obtaining Property upon Forged
Instruments, 214.
5. Parties Indictable, 2U.
6. Indictment, 215.
7. Allegation and Proof of Intent to
defraud, 220.
8. Jurisdiction to try, 222.
9. Election of Forgeries, 223.
10. Uttering, 223.
11. Evidence, 22b.
12. Witnesses, 229.
13. Power to seize Forqed Instruments
or Implements, 229.
14. Punishment, 229.
1 5 Costs of Prosecution, 229.
XVni. Government Stores, 229.
XIX. Gunpowder.
1 . Illegal Making, Use and Employ-
ment, 231.
2. Intent to murder by — See Mur-
der, AND OfFENHLB against
THE Perron.
3. Inflicting Injuries by — See McB-
DEB.
XX. Larceny and Receiyers.
1 . What amounts to a Taking, 232.
(a) General Principles, 232.
(b) On Sale or Purchase of
Goods, 238.
(c) By a Trick or a Fraud, 240.
(d^ Chi Breach of Contract to
sell, 243.
(e) By Hirers of Property, 244.
xu
TABLE OF CONTENTS.
(f) From Bailees at Common
Law,2U. [245.
(f:) By BttUees at Common Lnw,
ffO Bt/ Patening Property^ 246.
(\) Means of facilitating or de-
lecting Larceny ^ 247.
Q) In Case of Lost Property,
247.
(k) Rfcem-y of Possession of
iStolm Property, 250.
(\) Seraants taking Ma8ter*8
Corn for fe&jling Horses,
251.
(m) Bif Husband and Wife, 251.
(n) Ijy Wife's Paramour, 252.
(o) By Clerks or Servants, 253.
(p) By Fraudulent Bailees, 258.
(q) By Partifs in concert, 260.
2. By Pers'/ns in the Qneen^s Service,
or by the Police, 260.
3. By Post Office Servants and Others
4. In a Dtceilinghouse, 264. [261.
5. From the Person, 266.
6. By Tenants or Lodgers, 267.
7. In Manufactories, 267.
8. From Mines, 268.
9. In Ships in Ports or on Navigable
Rive s and Wharves, 269.
10. Abroad or on the High Spos, 269.
11. Stealing or destroying Written In-
struments, 270.
1 2. Stealing or destroying Trees,Shrubs,
Vegetables and Fences, 271.
13. Attempts to commit Larceny, 274.
14. Subject-matter of Larceny, 274.
1 5 . Letters and Government Documents,
16. Fixtures, 278. [277.
17. Cattle and othf:r Animals, 279.
(») Statute, 279.
(b) Horse Stealing, 279.
(c) Cattle, 281.
(i\) Sheep Stealing, 281.
fe) Deer, 282.
(t) Dovfs or Pigeons, 284.
Cg; Fish, 284.
fh) Dogs, 2ae. [287.
(i) Birds and other Animals,
Q) Carcases or Skins, 288.
18. The Ownership, 289.
19. Receivers of Stolen Property, 294.
(&) Statutory Provisions^ 294.
(h) Who are Receivers, 295.
(c) Joint Receivers, 296.
((\) Husband and Wife, 297.
20. Indicttofnt for Stealing and Re-
ceivinq, 29§.
(fi) Stealing, 298.
(^) Stealing and Receiving, 301 .
21. Jurisdiction to tnj, 303.
22. Evidence, 304,
23. Punishment, 307.
24. Restitution and Recovery of Stolen
Property, 307.
XXL Mai^icious Injury to Prop-
erty, Cattle axd other
Animals.
1. Houses or Buildings, by Tenants,
310.
2. Manufactures and Materials, 310.
3. Machinery, 312.
4. Mines, 313.
5. Sea and River Banks, 315.
6. Shins and Sea Signals, 315.
7. Fish Ponds, 317.
8. Trees, Shrubs, Fences and Vege-
taldfs, 318.
9. Hopbinds, 320.
10. Works of Art, 320,
11. Indictment, S2\ .
12.^ tnount of Injury, 321.
13. Witnesses, 3i\ .
14. Killing or Maiming Cattle or other
Animals, 322.
15. Railways and Telegraphs — See
XXX. Railways, 425.
XXn. Misdemeanors.
1. What Indictable in general, 323.
2. Attempt to commit, 324.
XXni. Murder, Manslaugitter,
AND Offenses against
THE Person.
1 . Murder, 326.
2. Manslaughter. 334.
3. Abroad and at Sea, 346.
4. Principles, Accessories and Abet'
tors, 349.
6. Conspiring, or Soliciting to commit
Murder, 350.
6. Attempts to Murder and Inflicting
grievous Bodily Harm, 350.
fa^ By Administering Poison,
350.
(b) With Intent to procure Mis-
carriojge or Abortion, 3.53.
(c) By Shooting, Wounding,
Drowning, Suffocating or
Strangling, 354.
(d) Inflicting Grievous Bodily
Harm, 358.
(q) By Resisting or Preventing
the Apprehension or De-
tainer of Persons, 863.
(f) By Means of Gunpowder or
other Explosive Substan-
ces, 364.
(q) By setting Fire to or casting
away Sliips, 365.
(h) Prei^enting Rescue from
Siiipwreck, 365.
TABLE OF CONTENTS.
xiu
0^ Bif other Means, 365.
7. Sprinp &t<ji«,366.
8. lUtrcating Childreiif Apprenticen,
Servants^ Idiots, cma Helpless
Persons, 366.
(h) The Offence, 366.
(h) Indictment, ^10,
(q) Evidence, 97 \.
9. Injuring Persons Inf Wanton or
Furious Driving, 371.
10. Indictment for Murder and Man-
slaughter, 371 .
11. Declarations in Articulo Mortis,
375.
12. Evidence and Witnesses, 380.
13. Trials Judgment, and Execution
in Murder, 382.
14. Punishment far Manslaughter, 383.
XXrV. Night Poaching axd Of-
fenses RELATING TO
Game, Habes and Rab-
bits.
1. The Offence, .384.
2. Limitation of Time for Prosecu-
tion, 389.
3. Indictment^ 390.
4. Evidence, 391.
5. Conui' t ona and Commitments, 392.
6. Hares or RabUits, 392.
XXV. Obscenity and Inde-
cency.
1. Obscene Prints and Pictures, 393.
2. Indecent Exposure, 393.
XXVL Perjury, False Oaths AND
False Declarations.
1. FaUe Oaths, 395:
2. On Affidavits, 398.
3. Before Justices, 400.
4. Before Surrogates, 402.
5. Before Arbitrators, 402.
6. Indictment and Information, 403.
7. Ammdment of Variances, 410.
8. Evidence, 411.
9. Pioof by Judges* Notesof Evidence
414.
10. Proof of Particular Averments,
11. Proof of Indictment, A\^, [414.
12. Witnesses and Corroborative Evi-
dence, 416.
13. Trial, A\%.
14. Pa/se Dedarations, 419.
Ca) Customs, 419.
(b) On Rrgistration of Voters
andat Pcariiamentarg Elec-
tions, 419.
(c) Corporate, 420.
(d) Before Magistrates, 420.
fe} On Registration of Births,
Deaths or Marriages, 421 .
15. Seditious Practices and unlawful
Oaths, 422.
XXVn. Personation.
1. Stockholders, 423.
2. Seamen and Soldiers, 423.
3. Voters, 424.
XXVnL Poisoning.
1 . Placing Poison in Plantations, 424.
2. Murder bg — .S^ee Murdeb.
3. Administering with Intent to Mur-
dtr — See Murdrr.
4. To procure Abortion — See MuB-
DEB.
XXIX. Prize Fights, 425.
XXX. Railways and Tele-
graphs.
1. Endangering Safety of Persons on
Railways, 425.
2. Obstructing Engines or Carriages
on, 427.
3. Injuring Telegraphs, 427.
XXXL Rape, Abuse and Defile-
ment OP Women and
Children.
1. Rape, 428. [430.
fa) Who capable of Committing,
(b) Upon wltom Committed, 430.
(c) Accomplishment or Comple-
tion, 4^\.
(d) Indictment, 431.
(e) Evidi-nre, 432.
0) Where Triable, 435.
2. Abuse of Children, 435.
3. D^etnent, 438.
XXXn. Riots and Unlawful
Assemblies.
1 . Nature and Character, 439.
2. Illegal Training and Drilling, 440.
3. Duties of the Magistracy, 440.
4. Aiding and Assisting tike Consta-
bulary, 44 1 .
5. Indictment, 441.
6. Evidence, 442. [442.
7. Injuries to Property by Rioters,
a
XXXm. Robbery.
1. The Offence, 445.
2. Garotttpg, 448.
3. Indict mrnt, 44'J.
4. Evidence, 449.
5. Assault with Intent to Rob, 450.
6. Punishment of Whipping, 452.
XXXIV. Sanitary Laws, 452.
XIV
TABLE OF CONTENTS.
XXXV. SeAj Offences at, 453.
XXXVI. Sedition, 454.
XXXVn. Sepulture.
1. Desecration, 454.
XXXVin. Sodomy and Bestial-
ity, 455.
XXXIX. Suicides and Self
Maiming, 457.
XL. Threatening Letiebs
and Menaces.
1. Statufes, 457.
2. Detnati'fing 3fon^ or Valuables
With Menaces^ 457.
8. Thre ttening to acrvse of Crimea or
with Intent to Extort, 460.
4. LefttTs threatening to Burn or De-
sti-oi/, 463.
5. I^pPers threatening to Murder, 464
6. Threatening to sue far Penalties
464.
7. Threatening to Publish Defamatory
Matter, 464.
8. Prrsons IndirtaUe, 465.
9. Inflic/mejit, 465.
10. Evidence, 466.
XLL Treason.
1 . The Offence, 467.
2. Indictment, Lists of Witnesses,
Jnry, Eridence, Trial and Judg-
ment, 468.
^^ ^^ >•
XLn. Treasure Trove, 472,
XLITT. Procedure AND PRAcncB.
1. Indictment, 473.
(n) For what it lies, 473.
(b) Disolteyinq Orders oj Justices
and Others, 474.
(o) Quftshing, 475.
(i\) Tried when Indictment is not
good, 477.
(-y.) Finding, 477.
(fi) Ignoring, 477.
(s) Previous binding of Prose-
cutor, 477.
fh^ Cofi^ of Indictment, 4S0,
0) Venue, 4Sl.
(\) Crtption, 486.
(k) Sereral Counts, 487.
(\) As to the Allegations, 487.
(m) Description of the party ac-
cused, 489.
fn^ Affeqntions of Time and
Place, 489.
(o) Name of Party Injured,
490.
fpj Descri/tiion of Property or
Insf.ru ment, 492.
(q) Value, 493.
(r) Contra Purem and Contra
Formam Slatnfi, 494.
(s) 'Of joining Offences and
Ehctingl 4%^.
(t^ Time and Mode of raising
Farnial ObjertionSf 497.
(n) Amendment. 498.
(v) Solle. Prttsetpii, 502.
2. Central Criminal Court, 502.
(h) Jurisdiction, 502.
3. Tnul, 503.
("n j Jurisdiction, 503.
(U) Arrnitfnment and Plea, b04.
(v) Withdntwinq Plea of Not
Giulty. ."ids.
(^) Standing in the Dock, 505.
fej Blading Indictment, 505.
(i ) Sefumite Trial, 506.
f g) liiglit of A rquittal on Indict-
went of Several^ .506.
fh^ Po^itponing or Adjourning,
.506.
fl^ Illmss of Prisomr during
Trial, 508.
G) Trial on a Verdict in a Civil
Case, 508.
fkj Tend' ring Bill of Excep-
tions.
4. Pleas in AlMitrment, ,509.
5. Pleas of Auti^JoJs Convict and
Acquit, 509.
6. Demuirers, 514.
7. Recogniznticcs, 51.5.
8. Commissions and Gaol Delivery,
517.
9. Restoring Money found on Prison-
ers, 518.
1 0. Contempt of Court, 519.
11. AffidaoiU,' bid.
XLIV. Of Juries and Chai«.
LENGES.
1. Grand, 529.
2. Jurymen, 521.
8. Chillenget, 523.
4. V^iew, 527.
6. Lorking-up, 527.
6. Discharge of, 527.
7. Jury PivcL'SS, 528.
XLV. Counsel.
1 . Appearance and Defence by, 529.
2. Addressing the Jury, 530.
3. Itight of R^-ffly, 532.
4. Summing up Evidence, 533.
TABLE OF CONTENTa
XLVL Evidence.
1. QmfftBumM and Admissions, 535.
2. LhpmitionSy 550.
(i^) Mode of taking y 550.
(i>) Rttm-ning, 555.
(c) lUnfSS, Oerith, Insanitjf or
Absence tjf Witnfsses, 557.
(^) Ejumunatum on, 559.
(e) Co/ties t 561.
3. Frtsmnplions or Probabilites of
Uuill, 562.
4. AccompfirtSt 56*2.
5. Government S/fin, 564.
6. Compftencjf of Wdnesses^ 565.
7. Gmtft^Uiny Attendance, 568.
8. Swearing, 568.
9. Ordrring to lenre Court, 570.
1 0. Nnimts on Dade of Indictment, 570.
11. DeliratioMS in Arliculo Mortis,
571.
12. Emmining and Cross-examining
Witnesses, 571.
13. Declining to answer, 572.
1 4 . Eridence of Character, 573.
15. Eridence of Identity , \S1 A.
16. PrirUfged Cvmmunic ttions, 574.
1 7. Eeidence ofoihn simii tr Offences,
18. Prerious Conviction, 576. [576.
19. Maps or Pl$tns, 578.
20. Letters, 578.
21. Proof of Handwriting, 579.
22. Pronf of Documents by attesting
Witnesses, 579.
23. Notice t'> produce, 579.
24. Production and Inspection of Doc-
uments, 580.
25. On other Points, 590.
XX.VUL Vebdict, 580.
XI-VnL New Trial, 581.
XUX. Judgment AND Sentence.
1 . Form and Entry qeneraUy, 585.
2. At Nin Pnus, 588.
S. Bringing up before Court of Queen's
Bench, 589.
4. Arreti of, 590.
5. Iieeersal,590.
L. Ebbob and Appeal.
1. Error, 590.
2. Whin an Appeal lies, 594.
3. Court of Criminal Appeal, 594.
4. Ruies and Practice, 595.
LI. PUNISHIVCENT.
1. Penal Servitude, 5')7.
2. Returning thtrefrom, 5981
LIL Escape, Re8Cue AND Prison
Breach, GOO.
Lm. Pardon, 601.
LIX. Appreitension AND Arrest
OF Offenders.
1. Statutes, 602.
2. ^jf Constables and Private Indi-
viduals, 602.
8. Warrant of Justices, 605.
4. Bench Warrants, ^06.
LV. Search Warrants, 606.
LVI. Articles of Peace.
1 . When exhibited generally, 607.
2. Justices, 608.
3. On passing Sentence, C09.
4. Ptactice, 609.
LVn. Bail.
1. Fdony, 610.
2. /n Misdemeanors and ciher Caam,
611.
LVm. Costs.
1. Expenses of Prosecution, 613.
2. Rewards for extraordinary Exer-
tions ana Diligence, 615.
3. In other Cases, 615.
4. After Remooal by Certiorari, 615.
5. Practice, 619.
6. Taxation, 621.
7. Enforcing Payment, 621.
TJY, Extradition Treatebs.
1. In general, 622.
2. >r(tA America, 623.
TABLE OF CASES, DIGESTED.
Adams v. Moore, Apprehension and Arrest, 608.
Allen V. England, Forcible Entry, 171.
Allen V. Wnght, Apprehension and Arrest, 603.
AUejTie V. Reg., Error and Appeal, 592, 593.
Allison, ex parte, Assault and Battery, 57.
Anon., Assaults, 48, 50, 53, 58.
Anon., Bail, 612.
Anon., Coining, 86.
Anon., Crim. Inf., 1, 2, 11, 12, 18.
Anon., Evidence, 552,
Anon., False Pretences, 158.
Anon., Forgeiy, 223, 229.
Anon., Government Stores, 230.
Anon., Judgment, etc., 585.
Anon., Juries, etc., 519, 527.
Anon., Larceny, 236.
Anon., Murder, etc., 346, 369.
Anon., Perjury, 414.
Anon., Persons Capable of Crime, 22.
Anon., Procedure and Practice, 473, 485, 495, 503, 517.
Anon., Rape, etc., 433.
Arnold V. Dimsdale, Assault and Battery, 59.
Ashton's Case, Murder, etc., 376.
Ashton or Aston, In re. Articles of the Peace, 608.
Atbea's Case, Poacliing, 384.
Atkinson v. Rex, Judgment, etc., 585.
Att. Gen. v. Parsons, Juries, etc., 526.
Att. Gen. v. liay, Crim. Inf., 2.
Att. Gen. v. Smith, Crim. Inf., 2.
Attwood V. Joliife, Forcible Entry, 172.
Aylett V. Rex, Procedure and Practice, 486.
Barronet, In re. Bail, 610.
Barlhelemy, In re. Bail, 610.
Beauclerk, Ex parte, Crim. Inf., 4.
Beck^vith v. Philby, Apprehension and Arrest, 602.
Bengongh v. Rossiter, Procedure and Practice, 516.
Bermondsey Vestry v. Brown, Procedure and Practice, 469.
Blackburn v. Hargreave, Evidence, 568.
Blake v. Barnard, Assault and Battery, 47.
Booth V. Hanley, Apprehension and Aorest, 602.
Booth V. Hanley, Assault and Battery, 48.
Fish. Dig.— B.
V
xviii TABLE OF CASES, DIGESTED.
Bounty Case, Procedure and Practice, 506.
Bourne v. Rex, Error and Appeal, 591.
Bowditch V. Balchin, Apprehension and Arrest, 604.
Brery q. t. v. Levy, Particular Offences, 622.
Brittain v. Bank of London, Forgery, 188.
Brooks V. Warwick, Forgery, 177, 229.
Broome v. Reg., Procedure and Practice, 486, 490.
Brown v. Reg., Procedure and Practice, 498.
Browne v. Curaming, Procedure and Practice, 480.
Bullock V. Dodds, Punishment, 598.
Burling V. Read, Forcible Entry, 171.
Bumby v. Rollitt, Adulteration of Food, 36.
Butler V. Turley, Appreliension and Arrest, 604.
Butt V. Conant, Apprehension and Arrest, 605.
Caddy v. Barlow, Procedure and Practice, 480.
Campbell v. Reg., Juries, etc., 528.
Campbell v. R^., Judgment, etc., 586.
Campbell v. Reg., Larceny, 265.
Carpenter V. Mason, Crim. Inf., 11.
Cartwright v. Green, Larceny, 236.
Cattell V. Ireson, Evidence, 565.
Caudle v. Seymour, Apprehension and Arrest, 605.
Chaddock v. Wilbraham, Assault and Battery, 58.
Champney's Case, Perjury, 416.
Church, In re. Pardon, 602.
Clark V. Newsam, Forgery, 207, 210.
Collins V. Thomas, Forcible Entry, 170.
Conolly's Case, Coining, 96.
Conoloy's Case, Persons capable of Crimes, 22.
Cook V. Field, Procedure and Practice, 508.
Coombes v. Queen's Proctor, Larceny, 294.
Costar V. Hetherington, Assault and Battery, 57.
Coupey V. Henley, Apprehension and Arrest, 602.
Cowles V. Dunbar, Apprehension and Arrest, 603.
Crawshay, Ex parte, Crim. Inf., 2.
Cripps V. HartnoU, Bail, 613.
Crozier v. Cundy, Search Warrants, 606.
Cureton v. Reg., Poaching, 391.
Dale, Ex pai-te, Crim. Inf., 2.
Dalrymple v. Dalrymple, Bigamy, 61.
Davies v. Rex, Poaching, 390.
Davis's C. L., Coining, 98.
Davis V. Russell, Apprehension and Arrest, 603.
Davy, Ex parte. Forcible Entry, 171.
Denby's Case, Juries, etc., 521.
Derecourt v. Corbishley, Apprehension and Arrest. 605.
Dixon's Case, Forgery, 222.
Duchess of Kingston's Case, Bigamy, 51.
Dugdale v. Reg., Error and Appeal, 594.
Dugdale v. Reg., Misdemeanor, 324.
Dugdale v. Reg., Obscenity, etc., 393.
Dunn V. Reg., Articles of the Peace, 609.
Dunn V. Reg., Judgment, etc., 588.
Durkin's Case, Costs, 615.
TABLE OF CASES, DIGESTED. xix
Ednljee Byramjee, Ex parte, Error and Appeal, 593.
Elmsley's Case, Malicious Injury, 322.
Elsee V. Smith, Search Warrants, 606.
£Ismore v. St. Briavels, Arson, 39.
Elworthy v. Bird, Procedure and Practice, 502.
iaitick V, Carrington, Search Warrants, 607.
Errington's Case, Murder, etc., 335, 379.
ErriDgton's Case, Procedure and Practice, 483.
Evans v. Philips, Procedure and Practice, 480.
Ex parte Chapman, Crim. Inf., 8.
Ex parte Overton, Perjury, 395.
Ex parte Tanner, Crim. Lif., 13.
Fentiman, In re. Grim. Lif., 8.
Fielder v. Marshall, Forgery, 182.
Fletcher v. Calthorp, Poaching, 392.
Fletcher, Ex parte, Evidence, 561.
Flower v. Shaw, Forgery, 174, 189.
Forde v. Skinner, Assault and Battery, 47.
Fox V. Gaunt, Apprehension and Arrest, 603.
GalUard v. Laxton, Apprehension and Arrest, 605.
Gifford, Lord, Ex parte. Articles of the Peace, 609.
Gogarty v. ^eg.y Kiots, 440.
Goldsmith's Case, Murder, etc., 354.
Gough V. Davies, Pardon, 602.
Graham's Case, Bigamy, 61.
Gray v. R^., Juries, etc, 524.
Gregory v. R(^., Judgment, etc., 586.
Hamilton v. Beg., False Pretences, 165.
Hancock v. Somes, Assault and Battery, 56.
Hanway y. Boultbee, Apprehension and Arrest, 604.
Harding v. King, Assault and Battery, 57.
Hardy v. Murphy, Apprehensions and Arrest, 602.
Harrison's Case, Coining, 94.
Harrison v. Hodgson, Assault and Battery, 48.
Harrud v. Worship, Malicious Injury, 315.
Hartley v. Hindmarsh, Assault and Battery, 57.
Haylocke v. Sparke, Articles of the Peace, 608.
Hays V. Bryant, Murder, etc., 370.
Henshall's Case. Murder, etc., 36L
Hermann v. Seneschal, Coining, 101,
Hillary v. Gay, Forcible Entry, 171.
Hilton's Case, Manslaughter, 343.
Hilton V. Eckersley, Conspiracy, 108.
Hobbe V, Brandscomb, Apprehension and Arrest, 602.
Hodge's Case, Murder, etc., 380.
HoUoway v. Reg., Judgment, etc., 587.
Holloway v, Reg., Escape, Rescue, etc., 601.
HoUoway v. Reg., Procedure and Practice, 487.
Holt V. Beg., Judgment, etc., 590.
Howard v. Reg., Error and Appeal, 592.
Hoye V. Bush, Murder, etc. 340.
Huke, Ex parte, Articles of the Peace, 607.
Hmnphrys, Ex parte. Evidence, 561.
Imason v. Cope, Assault and Battery, 50.
XX TABLE OF CASES, DIGESTED.
In re Headley, (Lord), Juries, etc., 519.
In re Strahan, Paul & Bates, Embezzlement, 144.
In re Wetton, Procedure and Practice, 516.
In re Young, Procedure and Practice, 516.
Isaacs V. Brand, Apprehension and Arrest, 604.
Jenning's Case, Murder, etc., 360.
Jones V. Orchard, Bail, 613.
Keen v. Reg., Procedure and Practice, 516.
King. V. Reg., Conspiracy, etc.. 111.
King V. Reg., Judgment, etc., 587, 590, 588.
King V. Reg., Perjury, 400.
Kinnersley v. Orpe, Larceny, 286.
Knowlden v. Reg., Procedure and Practice, 478.
Latljam v. Reg., Conspiracy, 112, 117 ; Error and Appeal, .591 ; Pro-
cedure and Practice, 487.
Lavey v. Reg., Perjury, 404.
Lawler v. Kelly, Assault and Battery, 57.
Lawrence v. Hedger, Apprehension and Arrest, 603.
Leach v. Simpson, Evidence, 555.
Lee, Ex parte, Crim. Inf., 9.
Legatt V. Tollei-vey, Procedui-e and Practice, 480.
Leverson v. Reg., Procedure and Practice, 518.
Levi V. Levi, Conspiracy, 106.
Levy V. Edwards, Apprehension and Arrest, 602.
Lewen's Case, Cobts, 614.
Linford v. Fitzr^, Bail, 612.
Lisle V. Brown, Larceny, 286.
Lolley's Case, Bigamy, 59.
Lord, Ex parte, Bail, 612.
Lord Vane's Case, Articles of the Peace, 607.
Lowe V. Horwarth, Assault and Battery, 54.
Lyde v. Russell, Larceny, 279.
Macnaghten's Case, Pei-sons capable of Crimes, 18.
Maden v. Catanach, Evidence, 569.
Mann v. Owen, Government Stores, 231.
Mansell v. Reg., Error and Appeal, 594 ; Juries, etc., 525, 528.
Marlborough, (Duke) Ex parte, Crim. Inf., 9, 12.
Marsh v. Loader, Persons capable of Crimes, 24.
JVIartin v. Reg., Punishment, 599.
Mayhew v. Parker, Apprehension and Arrest, 605.
Mead V. Young, Forgery, 185.
Merry v. Green, Larceny, 236.
Meynell's Case, Evidence, 535.
Mildrone's Case, Evidence, 569.
Milner v. MacLean, Forcible Entry, 170.
Money v. Leach, Apprehension and Arrest, 605.
Moriarty v. Bi-ooks, Murder, etc., 359.
Morris v. Wise, Apprehension and Arrest, 604.
Morrison v. Kelly, Procedure and Practice, 480.
Mulcahy v. Reg., Conspiracy, 107 ; Juries, etc., 520, 526 ; Treason, 472.
Munster, Ex parte, Crim. Inf., 16.
Mure V. Kay, Apprehension and Arrest, 603.
Murray v. Reg., Bigamy, 64 ; Error and Appeal, 592 ; Judgment, etc.,
586.
TABLE OF CASES, DIGESTED. xxi
Muf^raye v. Medex, Peijury, 898.
Nas^ V. Reg., Procedure and Practice, 489.
Newton v. Harland, Forcible Entry, 171.
Newton, In re, Error and Appeal, 592.
Nicholson's Case, Riots, 442.
Nicholson v. Hardwick, Apprehension and Arrest, 603.
Nisbett, Ex parte, Apprehension and Arrest, 605.
O'Brien v. Reg., Procedure and Practice, 517.
O'Connell V. Keg., Articles of the Peace, 609; Conspiracy, 107, 112,
117 ; Counsel, 529, 532 ; Judgment, etc., 585 : Procedure and
Practice, 509 ; Verdict, 581.
Omealy v. Newell, Perjury, 398.
O'Neill V. Reg., Juries, etc., 529.
Overton v. Reg., Perjury, 404.
Parker v. Green, Evidence, 665.
Patteson's Case, Counsel, 532.
Pearson's Case, Murder, etc., 830.
Pearson's Case, Persons capable of Crimes, 13.
Pearson v. M'Gowran, False Pretences, 146, 170.
Peat's Case, Bigamy, 65 ; Evidence, 567.
Peddel v. Rutter, Perjury, 419.
Perkin's C^tfe, Forgery, 223.
Peto y. Reynolds, Forgery, 182.
Pettamberdass v. Thackoorseydass, Adulteration of Food, 36.
Phillips v. Wimbum, Evidence, 547.
Pickering v. Rudd, Poaching, 384.
Pigott, In re. Error and Appeal, 592.
Pollen V. Brewer, Forcible Entry, 171.
Porter v. Cooper, Perjury, 416.
Price V. Seeley, Apprehension and Arrest, 604.
Prickett V. Gratrex, Articles of the Peace, 608.
Prideaax v. Arthur, Crim. Inf., 10.
Prosser y. Rowe, Procedure and Practice, 509.
Purcell V. M'Namara, Perjury, 420.
Raffety's Case, Robbery, 449.
Rawlins v. Ellis, Apprehension and Arrest, 606.
Reeve v. Wood, Evidence, 558.
Reg. v. Abbott, False Pretences, 154.
Reg. v. Abraham, Evidence, 550 ; Larceny, 304.
Reg. v. Absolon, Conspiracy, 107.
Reg. v. Adams, Larceny, 241, 307.
Reg. V. Adams, Procedure and Practice, 494, 514.
R^. V. Adamson, False Pretences, 1 68.
Reg. V. Adey, Embezzlement, 128.
R^. V. Ady, False Pretences, 147.
Reg. V. Aheame, Conspiracy, 117.
Reg. V. Albert, Procedure and Practice, 481.
Reg. V. Aldridge, Forgery, 227 ; Larceny, 280.
Reg. V. Alison, Murder, etc., 334.
Rq^. V. Allan, Escape, Rescue, etc., 601.
R^. V. Allday, Forgery, 199 ; Juries, etc., 521.
R^. V. Allen, Murder, etc., 333 ; Procedure and Practice, 502 ; Rape,
etc., 431, 432 ; Sea, Offences at, 454; Sodomy, etc., 456.
R^. V. Alleyne, Error and Appeal, 593.
xxu
TABLE OF CASES, DIGESTED.
Reg. V. Almey,JEscape, 601.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Iteg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
Alsop, Perjury, 410.
Ambury, f unisbment, 600.
Amos, Arson, 39.
Anderson, Evidence, 553, 559 ; Forgery, 206 ;* Procedure and
Practice, 503 ; Sea, Oftences at, 453.
Andrews, Bail, 610 ; Burglary, 80.
Arcber, False Pretences, 148.
Arcber, Murder, etc., 337.
Arlett, Procedure and Practice, 517.
Arman, Embezzlement, 128.
Arnall, Evidence, 544.
Arnold, Evidence, 545, 556.
Arrowsmitb, Crim. Inf., 12.
Arundel, Evidence, 567.
Asbby, Forgery, 189.
Asbley, Larceny, 265.
Asbman, Murder, etc., 361.
Aston, Embezzlement, 124, 138.
Atkinson, Embezzlement, 128 ; Forgery, 210 ; Larceny, 291.
Austin, Evidence, 559.
Austin, Poaching, 389.
Austin, Procedure and Practice, 477.
Autey, Forgery, 207.
Avery, Forgery, 212.
Avery, Larceny, 253.
Aylett, Evidence, 562.
Azzopardi, Murder, etc., 348 ; Procedure and Practice, 503.
Badger, Bail, 611 ; Crim. Inf., 8, 9.
Bailey, Arson, 46 ; Bui*glary, 77.
Baillie, Abduction of Women, etc., 33.
Bain, Burglary, 78 ; Misdemeanors, 325.
Baker, Burglary, 73 ; Murder, etc., 357.
Baldock, Arson, 43.
Baldry, JEvidence, 544.
Baldwin, Crim. Inf., 4.
Ball, False Pretences, 156 ; Perjury, 403.
Bannen, Coining, 91.
Barber, Counsel, 530 ; Forgery, 191, 213.
Barker, Arson, 45.
Barley, Evidence, 570.
Bamaid Castle, Costs, 617.
Barnes, Costs, 615 ; Embezzlement, 125 ; False Pretences, 153 ;
Larceny, 255, 289 ; Perjury, 414.
Bamet, Evidence, 560'.
Barnett, Robbery, 450.
Barratt, Abduction of Women, 33, 35.
BaiTCtt, Costs, 615 ; Murder, etc., 343.
Barron, Counsel, 533 ; Rape, etc., 430.
Barry, Conspiracy, 115 ; Procedure and Practice, 497.
Bartholomew, Perjury, 409.
Bartlett, Counsel, 529 ; Forgery, 182.
Barton, Persons capable of Crimes, 20.
V. Bass, Procedure and Practice, 518.
TABLE OF CASES, DIGESTED. xxiii
^ — — — ■
Reg. y. Bateman, Evidence, 552.
Reg. V. Bates, Concealment of Births, 105 ; Evidence, 552 ; False Pre-
tences, 147.
Reg. V. Batstone, Arson, 41,
R^. V. Batt, Riots, 443.
R^. V. Batty, Embezzlement, 124.
Reg. V. Bay ley, Embezzlement, 127.
Reg. V. Bay lis. Evidence, 569.
R^. V. Beale, Rape, etc., 436.
R^. y. Beaman, Larceny, 255.
Reg, V. Beard, Counsel, 531 ; Forgery, 186.
Reg. V. Beardmore, Evidence, 560.
Reg. v. Beardsall, Forgery, 186.
Reg. V. Beaimiont, Embezzlement, 120.
Reg. V. Beckwith, Counsel, 533.
Reg. V. Beecham, Larceny, 242.
R^. V. Beere, Juries, etc., 523.
Reg. v. Beeston, Evidence, 555.
Reg. V. Beeton, Larceny, 301.
Reg. y. Belton, Counsel, 530.
R^. V. Benge, Murder, etc., 344.
Reg. V. Bennett, Murder, etc., 336 ; Perjury, 409 ; Rape, 436.
Reg. V. Bent, Perjury, 420.
Reg. V. Berens, Counsel, 534.
R^. V. Bernard, Counsel, 532 ; Error and Appeal, 595 ; Evidence, 565 ;
Murder, etc., 350, 364; Procedure anaPractice, 504, 518.
Reg. V, Berriman, Concealment of Births, 103, 105.
Reg. V. Berry, Larceny, 253 ; Perjury, 401.
Reg. V. Bertrand, Evidence, 576 ; New Trial, 582.
Reg. V. Best, Particular Offences, 622.
Reg. V. Betts, Larceny, 256.
Reg. V. Benzant, Costs, 616.
Reg. V. Biekerstaff, Larceny, 261.
Reg. V. Birch, Robbery, 445, 450.
R^. V. Birchall, Murder, etc., 337, 344.
Reg. V. Bird, Burglary, 67, 78 ; Concealments of Births, 103 ; Error and
Appeal, 595 ; Procedure and Practice, 510.
Reg. V. Birkett, Evidence, 564.
Reg. V. Birmingham and Gloucester Railway Company, Persons capable
of Crimes, 23 ; Procedure and Practice, 514;
Reg. V. Bishop, Costs, 618 ; Peijury, 399.
Reg. V. Biss, Murder, etc., 375.
R^. V. Biswell, Abduction of Women, etc., 33.
Rex V. Bitton, Procedure and Practice, 504.
Reg, V. Bjomsen, Murder, etc., 348.
Reg. V. Blackburn, Counsel, 532 ; Embezzlement, 132 ; Evidence, 540,
574 ; Murder, etc., 349 ; Procedure and Practice, 506.
Reg. V. Blake, Conspiracy, 111, 116.
Reg. V. Blakeman, Juries, etc., 524.
Reg. V. Bleasdale, Larceny, 269 ; Persons capable of Crimes, 17.
Reg. V. Blenkinsop, Forgery, 182.
Reg. V. Bloomfield, False Pretences, 148.
Reg. V. Boardman, Forgery, 218.
Reg. V. Boden, Robbery, 451,
'
XXIV TABLE OF CASES, DIGESTED.
Reg. V. Bodkin, Evidence, 643.
Reg. V. Bolam, Procedure and Practice, 508.
Reg. V. Bond, Evidence, 554 ; Larceny, 299 ; Procedure and Practice, 493.
Reg. V. Boober, Coining, 92.
Reg. V. Boreham, Forgery, 189.
Reg. V. Borron, Crim. Inf., 7.
Reg. V. Boswell, Evidence, 539.
Reg. V. Botfield, New Trial, 583.
Reg. V. Boucher, Counsel, 531 ; Evidence, 579 ; Malicious Injury, 320.
Reg. v. Boult, Forgery, 175.
Reg. V. Boulter, Perjury, 417.
Reg. V. Boulton, False Pretences, 161.
Reg. V. Bourdon, Evidence, 578 ; Judgment, etc., 587.
Reg. V. Bowden, Larceny, 265.
Reg. V. Bowen, Bigamy, 62; Costs, 620; False Pretences, 164; Laroe-
ny, 271 ; Murder, etc., 360 ; Procedure and Practice, 507.
Reg. V. Bowers or Bower, Embezzlement, 126.
Reg. V. Bowler, Perjury, 419.
Reg. V. Bowray, Railways, etc., 426.
Reg. V. Bowser, Forcible Entry, 172.
Reg. V. Box, Larceny, 239.
Reg. V. Boyes, Evidence, 662, 573.
Reg. V. Boynes, Perjury, 420.
Reg. V. Brackenridge, Forgery, 181.
Reg. V. Brackett, iSirceny, 256.
Reg. V. Bradford, Forgery, 221 ; Railways, etc., 427.
Reg. V. Braithwaite, Perjury. 418.
Reg. V. Bramley, Larceny, 241. '
Reg. V. Braun, Procediire and Practice, 497.
Reg. V. Brawn, Bigamy, 60.
Reg. V. Bray, Procedure and Practice, 478, 489.
Reg. V. Braynell, Threatening Letters, 462.
Reg. V. Bren, Embezzlement, 131.
Reg. V. Brenan, Punishment, 599.
Reg. V. Brettell, Larceny, 305.
Reg. V. Bridgman, Procedure and Practice, 515.
Reg. V. Briggs, Bigamy, 63 ; Counsel, 532 ; Evidence, 576.
Reg. V. Brimilow, Persons capable of Crimes, 24.
Reg. V. Brisby, Procedure and Practice,* 475.
Reg. V. Brittain, Conspiracy, 115 ; Treason, 468.
Reg. V. Brittqn, Robbery, 450.
Reg. V. Brooke, Poacliing, 389.
Reg. V. Brookes, Burglary, 80 ; Procedure and Practice, 490.
Reg. V. Brooks, False Pretences, 154 ; Larceny, 244, 297.
Reg. V. Broome, En'or and Appeal, 593.
Reg. V. Brown, Arson, 41 ; Conspiracy, 107, 113, 115; Evidence, 572,
574, 580; False Pretences, 16*5; Forgery, 226; Larceny, 242 ;
Perjury, 421 ; Prize Fights, 425 ; Proi^ure and Practice, 505-,
514; Riots, 441.
Reg. V. Browne, Procedure and Practice, 485.
Reg. V. Browning, Perjury, 421.
Reg. V. Bruce, Murder, etc., 338.
Reg. V. Brumby, Larceny, 274.
Reg. V. Brummitt, Error and Appeal, 597 ; Larceny, 279.
\
TABLE OF CASES, DIGESTED. xxv
Reg. V. Bryan, False Pretences, 154, 155.
Reg, V. Bubb, Murder, etc., 367.
Reg. V. Buchanan, Procedure and Practice, 473.
Reg. V, Bull, Evidence, 571 ; Murder, etc., 326, 845.
Reg. V. Bullock, Conspiracy, 1 10 ; Malicious Injury, 323.
Reg. V. Bulmer, False Pretences, 149, 163.
Reg. V. Bunce, Larceny, 242.
Reg. V. Bunkall, Larceny, 259.
Reg. V. Burbon, New Trial, 582.
Reg. V. Bui^on, False Pretences, 148.
Reg. V. Burgess, Larceny, 290 ; Murder, etc., 384 ; Suicides, 457.
R^. V. Burke, Juries, etc., 526 ; Treason, 468.
Reg. V. Bumby, Procedure and Practice, 475.
Reg. V. Bumsides, False Pretences, 152, 169.
Reg. V. Burraston, Perjury, 406.
Reg. V. Burrell, Abduction of Women, etc., 34 ; Error and Appeal, 597.
Eeg. V. Burridge, Threatening Letters, 463.
Reg. V. Burrow?, Counsel, 531 ; False Pretences, 151.
Reg. V. Burton, Counsel, 532 ; Larceny, 250, 305 ; Persons capable of
Crimes, 19.
Reg. V. Butcher, Counsel, 531, 533 ; False Pretences, 152.
R^. V. Butler, Evidence, 543 ; Larceny, 255.
R^. V. Butter^eld, Burglary, 79.
Reg. V. Butterwick, Costs, 614; Forgery, 182.
Reg. V. Button, Conspiracy, 107; Misdemeanors, 823.
Reg. V. Byrne, Coining, 84; False Pretences, 150.
Reg. V. Cain, Larceny, 292.
R^. V. Caldecott, Costs, 617.
Reg. V. Caley, Larceny, 292 ; Procedure and Practice, 492.
Reg. V. Calvert, Murder, etc., 362.
Reg. V. Campbell, Murder, etc., 374.
R^. V. Camplin, Rape, etc., 429.
Reg. V. Canwell, Assault and Battery, 48.
Reg. V. Carlile, Obscenity, etc,, 393.
Reg. v. Carlile, Conspiracy, 107.
Reg. V. Carpenter, Embezzlement, 130; Evidence, 549.
Reg. V. Carr, Perjury, 413.
Reg. V. Carruthers, Threatening^ Letters, 459, 466.
Reg. V. Carter, Burglary, 78 ; Forgery, 205, Judgment, etc., 585.
Reg. V. Casbolt, Poaching, 390.
Reg. V. Case, Rape, etc., 430 ; Assault and Battery, 48.
Reg. V. Caspar, Principals, etc., 30.
Reg. V. Cassidy, Evidence, 570.
Reg. V. Castle, Forcrery, 195.
Reg. V. Caudwell, New Trial, 684.
Reg. V. Cavendish, Procedure and Practice, 486.
Reg. V. Chadwick, Bi^my, 60 ; Forgery, 174.
Reg. V. Challicomb, New Trial, 582.
Reg. V. Chalmers, Threatening Letters, 463.
Reg. V. Chamberlain, Murder, etc., 346.
Reg. V. Chambers, Evidence, 535.
R«g. V. Chandler, Murder, etc., 367.
Reg. V. Chapman, Bail, 611 ; Embezzlement, 119 ; Misdemeanor, 324 ;
Murder, etc., 333 ; Perjury, 399, 402 ; Procedure and Practice, 507.
xxvi TABLE OF CASES, DIGESTED.
Reg, V. Chappie, Principals, etc., 28.
Reg. V. Chariesworth, Juries, etc., 527 ; Procedure and Practice, 511.
Reg. V. Chater, Embezzlement, 128.
Reg. V. Cheafor, Larceny, 284, 801.
Reg. V. Cheeseman, Larceny, 274.
Reg. V. Cheverton, Evidence, 543 ; Murder, etc., 880.
Reg. V. Chidley, Evidence, 552.
Reg. V. Child, Forcible Entry, 171 ; Peijury, 411, 414.
Reg. V. Christian, Perjury, 399, 415 ; Riots, 444.
Reg. V. Christie, Counsel, 533.
Reg. V. Christopher, Evidence, 550, 561 ; Larceny, 248.
Reg. V. Clapton, Embezzlement, 139.
Reg. V. Clark, Bigamy, 60 ; Error and Appeal, 595 ; Evidence, 577.
Reg. V. ClarkiB, Burglary, 80 ; Concealments of Births, 104 ; Evidence,
558 ; Murder, etc., 377 ; Rape, etc., 429, 434.
Reg. v. Clay, Rape, etc., 484.
Reg. V. Clayton, Arson, 44.
Reg. V. Cleary, Murder, etc., 377, 381.
Reg. V. Clegg, Perjury, 398.
Reg. V. Clegs, Mahcious Injury, 311.
Reg. V. Clements, Evidence, 557.
Reg. V. Clifford, Forgery, 186 ; Persons capable of Crimes, 17.
Reg. V. Closs, False Pretences, 162; Forgery, 175.
Reg. V. Clouter, Procedure and Practice, 505.
Reg. V. Clube, Evidence, 580.
Reg. V. Cluderay, Murder, etc., 351.
Reg. V. Cluderoy, Error and Appeal, 597.
Reg. V. Cobden, Burglary, 81 ; Evidence, 576.
Reg. V. Cockbum, Evidence, 559 ; Rape, etc., 431.
Reg. V. Coglilan, Threatening Letters, 461.
Reg. V. Cohen, Government Stores, 231 ; Larceny, 229, 252.
Reg. V. Cole, Larceny, 244.
Reg. V. Coley, Evidence, 537.
Reg. V. Coelho, Forgery, 208.
Reg. V. Colley, Arson, 39.
Reg. V. Collier, Evidence, 541.
Reg. V. Collins, 174, 218 ; Larceny, 274 ; Misdemeanors, 325.
Reg. V. Colmer, Concealment of Births, 102 ; Evidence, 553.
Reg. V. Colucci, Evidence, 580; False Pretences, 169.
Reg. V. Compbell, Murder, 374.
Reg. V. Conde, Murder, etc., 368.
Reg. V. Conming, Evidence, 553, 559.
Reg. V. Connell, Coining, 84 ; Murder, etc., 351.
Reg. V. Conjior, Arson, 38, 39.
Reg. V. Conwell, Assault and Battery, 48,
Reg. V. Cook, Costs, 614.
Reg. V.Cooke, False Pretences, 170, 221, 225, 226; Forgery, 186;
Juries, etc,, 520 ; Larceny, 234; Perjury, 401,
Reg. V. Cooper, Forgery, 210 ; Larceny, 250 ; Misdemeanors, 323 ;
Murder, etc., 369 ; Riots, 442 ; Threatening Letters, 467,
Reg. V. Coots, Buiglary, 82.
Reg. V. Copeland, False Pretences, 158.
Reg. V. Copley, Counsel, 534.
Reg, V. Corey, Larceny, 288,
TABLE OF CASES, DIGESTED. xxvii
R^. V. Cornish, Larceny, 245.
Reg. V. Coulfion, False Pretences, 159, 160 ; Procedure and Practice,
493.
Reg. V. Court, Railways, etc., 426.
Reg. V. Courtenay, Burglary, 75.
R^. V. Courtney, Perjury, 397.
R^. y. Courvoisier, Counsel, 531. ^
Reg. V. Cox, Larceny, 300, 307 ; Murder, etc., 357, 361 ; Perjury, 421.
Reg. V. Coxhead, Concealments of Births, 108, 104.
Reg. V. Crab, False Pretences, 150.
R^. V. Cracicnell, Threatening Letters, 461.
Reg. V. Craddock, Larceny, 303 ; Verdict, 581.
R^. V. Cradock, Bigamy, 62.
Reg. V. Crane, Procedure and Practice, 517.
Reg. V. Crawford, Apprehension and Arrest, 606 ; Murder, etc., 365.
Reg. V. Crawley, Adulteration of Food, 36.
Reg. V. Crawshaw, Verdict, 581.
Reg. V. Creed, Embezzlement, 119.
Reg. V. Crespin, Assault and Battery, 53 ; Procedure and Practice, 488,
491.
R^. y. Crick, Murder, etc., 845.
Reg. V. Crisham, Rape, etc., 432.
Reg. V. Crispin, Procedure and Practice, 491.
Reg. V. Crittenden, Larceny, 250.
Reg. V. Crofts, Evidence, etc., 578.
R%. V. Crook, Murder, eic., 345.
Reg. y. Cropper, Juries, etc., 521.
Reg. V. Cross, Bigamy, 63.
Reg. V. Crossley, Procedure and Practice, 474. 4'
Reg. V. Crouch, Evidence, 579. **
Reg. y. Croucher, Evidence, 558.
^^^ v. Crowe, Sedition, 454.
R^. V. Crowhurst, Larceny, 250.
Reg. V. Crumpton, Robbery, 446 ; Murderj etc., 371.
Reg. V. Cruse, Murder, etc., 355 ; Principals, etc., 28.
Reg. V. Cryer, Larceny, 304.
R%. V. Cuddy, Murder, etc., 334.
Reg. V. CuUen, Bigamy, 63 ; Forgery, 219.
R^. V. Cunningham, Procedure and Practice, 482.
R^. y. Curgenwen, B^amy, 63.
R^. V. Cumock, Poaching, 390.
R^. V. Curry, Forgery, 182.
Reg. V. Curtis, Evidence, 560.
^. y. Cutts, Perjury, 408.
Reg. V. Dodson, Apprehension and Arrest, 604 ; Murder, etc, 351.
Reg. V. Dale, Murder, etc., 851.
Reg. V. Dalloway, Murder, etc., 341.
Reg. V. Daly, Particular Offences, 622.
Reg. V. Dane, Bigamy, 63.
Reg V. Danger, False Pretences, 163.
Reg. V. Dant, Murder, etc., 342.
Reg. V. Dark, False Pretences, 154.
Reg. V. Dartnell, Larceny, 257.
Reg. V. Da vies, Arson, 44; Assault and Battery, 51; Forgery, 218;
XXVlll
TABLE OF CASES, DIGESTED.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Beg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Larceny, 259, 264 ; l[lape, etc., 432 ; Persons capable of Crimes,
20, 21 ; Procedure and Practice, 491.
V. Davis, Burglary, 67 ; False Pretences, 151 ; Larceny, 278.
V. Davison, Juries, etc., 527.
V. Davitt, Treason, 472.
V. Dawson, Forgery, 207.
V. Day, Evidence, 543, 558 ; Rape, etc., 436.
V. Dean, Conspiracy, 110 ; Rape, etc., 434.
V. Deane, Juries, etc., 527.
V. Deaves, Larceny, 249.
V. Debruiel, Larceny, 303.
V. Deer, Larceny, 307.
V. Deering, Larceny, 257.
V. Denmour, Larceny, 260.
V. Dennis, Evidence, 571.
V. Denslow, Evidence, 567.
V. Dent, False Pretences, 166, 168 ; Procedure and Practice, 491.
V. Denton, Conspiracy, 117.
V. Deny or Totness, (Justices), Assault and Battery, 56.
V. Desmond, Conspiracy, 117.
V. De Vidil, Evidence, 551.
V. Dewitt, Perjury, 422.
V. Dibley, Larceny, 304.
V. Dignam, Judgment, etc., 589.
V. Dingley, Evidence, 539, 551.
V. Dilworth, Assault and Battery, 48.
V. Diprose, Embezzlement, 132.
V. Dixon, Embezzlement, 123 ; Forgery, 220, 248.
V. Dobson, Costs, 617, 621.
V. Dodd, Forgery, 176.
V. Doddridge, Poaching, 387.
V. Dodson, 3lalicious Injury, 318.
V. Dodsworth, Perjurv, 419.
V. Doherty, Crim. Int, 10.
V. Dolan, Error and Appeal, 519 ; Larceny, 295.
V. Donovan. Murder, etc., 361.
V. Doody, Suicides, 457.
v. Dossett, Evidence, 576 ; Ai'son, 46 ; Procedure and Practice, 496.
V. Douglas, Evidence, 580 ; Procedure and Practice, 505, 515.
v. Dowey, False Pretences, 161.
V. Dowing, Murder, etc., 373.
v. Dowling, Juries, etc., 523 ; Procedure and Practice, 505.
V. Downey, A^rehension and Arrest, 606.
V. Downham, Evidence, 579.
V. Dowse, Counsel, 534.
V. Downing, Murder, etc., 373.
V. Dovey, Larceny, 297.
V. Dring, Larceny, 297.
v. Driscoll, Assault and Battery, 47.
v. Drury, JSvidence, 567 ; Procedure and Practice, 510.
v. Duffield, Conspiracy, 108.
V. Duffy, Crim. Inf., 7 ; Procedure and Practice, 509 ; Sedition, 454.
V. Dunboyne (Loixi), Perjury, 422.
V. Dungey, Rape, etc., 432.
^ 1
TABLE OF CASES, DIGESTED. xxix
Reg. V. Dunn, Articles of the Peace, 607, 609 ; Costs, 619 ; Error and
Appeal, 593; Perjury, 399, 416; Procedure and Practice, 477,
486, 502.
R€g. T. Dunne, Evidence, 563.
Reg. V. Dunning, Costs ^15.
Reg. V. Dwenyhouse, Persons capable of Crime, 20.
Reg. V. Dyke, Evidence, 564.
Reg. V. Eagle, Murder, etc., 338.
Reg. V. Eagleton, False Pretences, 157.
Reg. V. East Stoke, Costs, 618.
Reg. V. Eaton, Sodomy, etc., 456.
Reg. V. Edgell, Arson, 37.
R^. V. Edmundson, Larceny, 268.
R^. V. Edwards, Evidence, 570 ; Murder, etc., 371.
Reg. V. Elliott, Obscenity, etc., 394.
Reg. V. Ellis, Bigamy, 63 ; Forgery, 203 ; Murder, etc., 345, 373 : Per-
jury, 41 9.
R^. V. Elrington, Assault and Battery, 56.
Reg. V. El worthy. Evidence, 580 ; Perjury, 414.
Reg. V. Emmons, Punishment, 600.
R^. V. England, Arson, 39.
Reg. V. Epps, Forgery, 185.
R^. V. Sisdaile, (Jonspiracy, 107, 113, 115.
R^. V. Essex, Embezzlement, 139 ; False Pretences, 159 ; Larceny, 254,
Reg. V. Entrehman, Evidence, 569.
R^. v. Evans, Burglary, 73 ; Forgery, 195 ; False Pretences, 154, 160 ;
Larceny, 251 ; Murder, etc., 374.
Reg. V. Ewington, Perjury, 396.
Reg. V. Exall, Burglary, 81.
R^. V. E3rre, Rape, etc., 433.
R^. V. Faderman, Error and Appeal, 595 ; Procedure and Practice,
515 ; Sedition, 454.
R^. V. Fairlie, Perjury, 402.
Reg. V. Fallon, Principals, etc., 27.
R^. V. Fanning, Bigamy, 61.
Reg. V. Farler, Evidence, 564.
R^. V. Farley, Evidence, 575 ; Forgery, 213.
R^. V. Famhan, Concealment of Births, 102.
Reg. v. Farr, Larceny, 306.
R^. v. Farrell, Obscenity, etc., 394.
Reg. V. Farrow, Murder, etc., 854.
Reg. V. Featherstone, Error and Appeal, 596 ; Larceny, 253.
Reg. V. Feist, Sepulture, 455.
Reg. V. Fen wick. Procedure and Practice, 490, 514.
Reg. V. Ferguson, Procedure and Practice, 487, 496.
R^. V. Fielding, Poaching, 391.
Reg. V. Finney, Punisjiment, 600.
Reg. V. Firth, Larceny, 234.
Reg. V. Fisher, Malicious Injury, 312 ; Murder, etc., 327 ; Principals,
etc., 29.
Reg. V. Fitch, Forgery, 210 ; Larceny, 253.
Reg. V. Fitchie, Foi^ery, 212, 225.
Reg. V. Flaherty, Bigamy, 65.
R^. V. Flanagan, Larceny, 257.
}
XXX
TABLE OF CASES, DIGESTED.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg-
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
V. Fletcher, Arson, 38 ; Embezzlement, 142 ; Rape, etc., 428, 429,
431.
V. Fogarty, Counsel, 529.
V. Folkes, Rape, etc., 436.
V. Fontaine Moreau, Assault and Battery, 53.
V. Forbes, Assault and Battery, 51.
V. Ford, Evidence, 559.
V. Forester, Murder, etc., 377.
V. Forster, Coining, 96.
V. Foster, Juries, etc., 527.
V. Foulkes, Costs, 619.
V. Fox, Judgment, etc., 588.
V. Frampton, Embezzlement, 122, 135 ; Larceny, 235, 296.
V. France, Evidence, 556.
V. Frances, Persons capable of Crimes, 18.
V. Frankland, Embezzlement, 128.
V. Franklin, False Pretences, 147.
V. Franz, Murder, etc., 380.
V. Frazier, Abduction of Women, etc., 33.
V. Freakley, Procedure and Practice, 516.
V. French, Procedure and Practice, 484.
V. Fretwell, Murder, etc., 331, 354, 356.
V. Frompton, Embezzlement, 122, 135 ; Larceny, 235, 296.
V. Frost, Juries, etc., 523 ; Procedure and Practice, 492, 501 ;
Treason, 468, 469, 470, 471.
V. Fro wen. Burglary, 75, 80.
V. Fry, False Pretences, 149.
V. Fuidge, Procedure and Practice, 479.
V. Fullarton, Procedure and Practice, 500.
V* Furguson, Robbery, 452.
V. Fussell, Sedition, 454.
V. Gadbury, Evidence, 571.
V. Gallant, Procedure and Practice, 482.
V. Gallears, Larceny, 300.
v. Gamble, Murder, etc., 357.
V. Gamlen, Persons capable of Crimes, 23.
V. Garbett, Evidence, 572.
v. Gardener, Larceny, 263.
v. Gardiner, Perjury, 406, 413.
V. Grardner, Costs, 614 ; Counsel, 531, 533 ; False Pretences, 154,
162 ; Larceny, 249; Murder, etc., 387.
Garland, Judgment, etc., 588.
Garner, Evidence, 549 ; Murder, etc., 331.
Garnham, Larceny, 288 ; Poaching, 387,
Grarrett, False Pretences, 146.
Gate Fulford, Error and Appeal, 597.
Gaylor, Principals, etc., 27 ; Murder, etc, 836.
Gazard, Evidence, 566; Perjury, 417.
Geach, Juries, etc., 524 ; Forgery, 186.
Geering, Murder, etc., 330.
George, Concealment of Births, 104 ; Evidence, 567.
Gerber, Evidence, 566.
G^rrish, Coining, 97.
Gibbon, Perjury, 397.
V
V
V
V
V
V
V
V
V
V
V
V
V
TABLE OF CASiS, DIGESTED. xxxi
Reg. V. Gibbs, Embezzlement, 121.
Reg. V. Gibson, Embezzlement, 127 ; Evidence, 571 ; Poaching, 889.
R^. V. Giddins, Robbery, 449.
Reg. V. Gilbert, Burglary, 74.
Reg. V. GilcbriRt, Forgery, 207 ; Larceny, 263.
Reg. V. Giles, False Pretences, 147.
Reg. V. Gill, Embezzlement, 120.
Reg. V. Gillings, Larceny, 264.
Reg. V. Giorgetti, Juries, etc., 523.
Reg. V. Gis8on, Procedure and Practice, 510.
Reg. V. Glass, Larceny, 261.
Reg. V. Glover. Embezzlement, 125.
R^. V. Glyde, Larceny, 249.
Reg. V. Goddai-d, Perjury, 408.
Reg. V. Godfrey, False Pretences, 167; Larceny, 277; Procedure and
Practice, 489.
Reg. V. Golde, Embezzlement, 142.
Reg. V. Groldthorpe, Concealment of Births, 102.
Reg. V. Gomm, Embezzlement, 142.
Reg. V. Gompertz, 112, 116, 118 ; New Trial, 583 ; Procedure and Prac-
tice, 481.
Reg. V. Gooch, Larceny, 278.
Reg. V. Good, Persons capable of Crimes, 22.
Reg. V. Groodbody, Larceny, 243.
Reg. V. Goode, Concealment of Births, 103 ; Laroehy, 255 ; Persons ca-
pable of Crimes, 20.
Reg. V. Goodenough, Embezzlement, 135.
Reg. V. Goodfellow, Peijury, 404, 415 ; Poaching, 891.
Reg. V. Goodhall or Goodchild, Murder, etc., 354.
Reg. V. Grooding, Bigamy, 64.
Reg. V. Goodman, Perjury, 420.
Reg. V. Goodwin, Coining, 99.
Reg. V. Grorbutt, Embezzlement, 185.
Reg. V. Gordon, Evidence, 570 ; Perjury, 414 ; Procedure and Prac-
tice, 507.
Reg. V. Goss, False Pretences, 155.
R^. V. Gould, Evidence, 557 ; Procedure and Practice, 511.
R^. V. Gover, Coining, 91.
Reg. V. Gray, Arson, 37 ; Judgment, etc., 586 ; Malicious Injury, 812 ;
Murder, etc., 344, 361 ; Procedure and Practice, 488.
Reg. V. Grant, Arson, 46.
Reg. V. Great North of England Railway Company, Persons capable of
Crimes, 24.
Reg. V. Green, Abduction of Women, etc., 83 ; Assault and Battery, 50 ;
False Pretences, 153 ; Forgery, 225 ; Larceny, 246, 256 ; Pro-
cedure and Practice, 511.
Reg. y. Greeuacre, Evidence, 562.
Reg. V. Greenhalgh, False Pretences, 161.
Reg. V. Greenwood, Coining, 97 ; Principals, etc., 26 ; Robbery, 446.
Reg. V. Gregory, Bail, 611 ; Crim. Inf, 4, 18; Counsel, 529 ; Murder,
etc., 343 ; Procedure and Practice, 485, 491, 503, 519.
Reg. V. Grey, Obscenity, etc., 395.
Reg. V. Griffin, Evidence, 543.
Reg. V. Griffiths, Forgery, 212 ; Murder, etc., 859 ; Rape, etc., 484.
xxxu
TABLE OF CASES, DIGESTED.
Reg.
Reg.
Reg.
Reg.
Beg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
R^.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
Grimwade, Threatening Letters, 463, 466.
Grundy, Procedure and Practice, 4b3.
Guelder, Embezzlement, 130.
Guernsey, Larceny, 273.
Guilt, Grim. Inf., 13.
Guttridges, Rape, etc., 433, 435.
Gwilt, Grim. Inf., 13.
Hagan, Murder, etc., 332.
Hague, Personation, 424.
Haigh, Larceny, 258.
Haines, Costs, 615 ; Murder, etc., 336.
Hale, Larceny, 284.
Halford, Larceny, 252.
Hall, Larceny, 234.
Hallett, Peijury, 403 ; Rape, etc., 429.
Halliday, Conspiracy, 115 ; Evidence, 568; False Pretences, 169.
Hamilton, Larceny, 265 ; Threatening Letters, 458.
Handley, Abduction of Women, etc., 33 ; Larceny, 251.
Hannon, Forgery, 181.
Hansell, Principals, etc., 29.
Hansill, Threatening Letters, 467.
Hansc»n, Assault and Battery, 48; Costs, 614, Forgery, 182;
Murder, etc., 352.
Hare, Embezzlement, 138.
Ilargreaves, Procedure and Practice, 479,
Harland, Forcible Entry, 172.
Harley, Larceny, 263.
Harmer, Larceny, 250.
Harrington, Murder, etc., 328, 335.
Harris, Arson, 46; Bail, 611 ; Crim. Inf, 13; Embezzlement,
120; Error and Appeal, 597; Evidence, 558; Forgery, 205;
Larceny, 281 ; Obscenity, etc., 395 ; Riots, 444.
V. Harrison, Perjury, 412.
V. Harrod, Pardon, 602.
V. Hartshorn, Forgery, 175.
V. Harvey, Coining, 83, 97 ; Larceny, 254; Perjury, 408, 410.
V. Haslam, Embezzlement, 138.
V. Hassell, Larceny, 258 ; Costs, 620.
v. Hastie, Embezzlement, 131.
V. Ilawdon, Costs, 617, 618.
V. Hawes, Bigamy, 62, 65.
V. Hawkes, Forgery, 182.
V. Hawkins, Embezzlement, 119 ; Larceny, 254.
V. Hay, Evidence, 578.
V. Hayes, Rape, etc., 435.
v. llaynes. Adulteration of Food, 36 ; Evidence, 572 ; Persons ca-
pable of Crimes, 19 ; Murder, etc., 326.
v. Ilayward, Costs, 614; Evidence, 575 ; Forgery, 213; Larceny,
255.
v. Hazard, Costs, 615.
V. Hazell, Counsel, 530 ; Evidence, 552.
V. Head, Larceny, 288.
V. Healey, Procedure and Practice, 488.
V. Heane, Perjury, 396 ; Procedure and Practice, 475.
TABLE OF CASES, DIGESTED. xxxiii
>'
Reg. V. Hearn, Evidence, 538, 551.
R€g. V. Heath, larceny, 254, 300.
Reg. V. Heaton, Bigamy, 63.
R^. V. Hely, Crim. Inf., 15.
Reg. V. Hemmings, Robbery, 448.
Reg. V. Henderson, False Pretences, 164.
Reg. V. Heudy, Sedition, 454 ; Threatening Letters, 467.
Reg. V. Hensliaw, False Pretences, 1 66.
R^. V. Henwn, Sanitary Laws, 453.
Reg. V. Herefordshire, (Justices), Evidence, 561.
Reg. V. Hetherington, New Trial, 584.
R^. V. Hewgill, False Pretences, 166.
Reg. V. Hewins, Peijury, 411.
Reg. V. Hewett, Evidence, 539.
Reg. V. Hewitt, Concealment of Births, 104 ; Conspiracy, 108.
Reg. V. Hewlett, Murder, etc., 361.
Reg. V. Hext, Crim. Inf., 13.
Reg, V. Hey, Larceny, 238, 244.
R^. V. Hey wood, Forgery, 193 ; Procedure and Practice, 496.
Reg. V. Hibbert, Abduction of Women, etc., 34.
Reg. V. Hicklin, Obscenity, etc., 393.
Reg. V. Hicks, Murder, etc., 374.
R^. V. Higginson, Persons capable of Crimes, 18.
Reg. V. Higgs, Burglary, 72 ; Poaching, 385.
Reg. V. Higson, Evidence, 554.
Reg. V. Hill, Burj^lary, 78 ; Evidence, 566 ; Forgery, 210, 221 ; Larce-
ny, 295 ; Threatening Letters, 463.
Reg. V. ilillman. Murder, etc., 353.
Reg. V. Hills, Costs, 621.
Reg, V. Hilton, Error and Appeal, 597 ; Evidence, 577 ; Larceny, 302.
Reg. V. Hind, Murder, etc., 375, 378.
R^. V*. Hinley, Procedure and Practice, 496.
Reg. V. Hinks, Evidence, 566.
Reg. V. Hoare, Embezzlement, 127 ; Larceny, 258.
R^. V. Hobson, Larceny, 296.
Reg. V. Hoatson, Forgery, 200.
Reg. V. Hodges, Juries, etc., 520 ; Persons capable of Crimes, 20.
Reg. V. Hodgkiss, Perjury, 398, 408.
Reg. V. Hodgson, Costs, 018, 619 ; Forgery, 176, 220.
Reg. V. Hogan, Murder, etc., 369.
Reg. V. Hogg, Murder, etc., 374, 383.
R^. V. Holc^n, Murder, etc., 380 ; Procedure and Practice, 482.
Reg. V. Holland, Murder, etc., 326 ; llape, et<5., 437.
Reg. V. HoUoway, Error and Appeal, 596 ; Escape, Rescue, etc., 601 ;
False Pretences, 163 ; Juries, etc., 520 ; Larceny, 234.
R^. V. Holman, Counsel, 530 ; Embezzlement, 137 ; Larceny, 298 ; Pro-
cedure and Practice, 497.
Reg. V. Holmes, Evidence, 545 ; Obscenity, etc., 393 ; Procedure and
Practice, 488.
Reg. V. Holroyd, Railways, etc., 426.
Reg. V. Holt, False Pretences, 168.
Reg. V. Hook, Perjury, 418.
Reg. V. Hooper, Larceny, 305.
Reg. V. Hopkms, Abduction of Women, etc., 32 ; Murder, etc., 329.
Fish. Dig.— C.
xxxiv TABLE OF CASES, DIGESTED.
Reg. V. Hopley, Murder, etc., 346.
Reg. V. Hore, Larceny, 237.
Reg. V. Hornby, Larceny, 297.
Reg. V. Home, Punishment, 600.
Reg. V. Hornsea, Error and Appeal, 597.
Reg. V. Horsey, Murder, etc., 829.
Reg. V. Horton, Bigamy, 64.
Reg. V. Hounsell, Concealment of Births, 104.
Reg. V. Houseman, Forgery, 209.
Reg. V. Howell, Conspiracy, 106 ; Murder, etc., 849, 376 ; Piincipals,
etc., 26 ; Procedure and Practice, 490 ; Riots, 439, 443.
Reg. V. Hudson, Conspiracy, 109 ; Peijury, 400.
Reg. V. Hughes, False Pi-etences, 160 ; Juries, etc., 524 ; Larceny, 292 ;
Muixler, etc., 335 ; Perjury, 397, 402, 418 ; Principals, etc., 30 ;
Procedure and Practice, 480 ; Robbery, 448.
Reg. V. Hull, Poaching, 389.
Reg. V. Humphreys, Juries, etc., 519 ; Procedure and Practice, 477.
Reg. V. Huntley, tarceny, 302 ; Murder, etc., 362 ; Procedure and Prac-
tice, 489.
Reg. V. Hunt, Embezzlement, 132 ; Larceny, 259 ; Murder, etc., 380,
383 ; Procedure and Practice, 485 ; Kiots, 440.
Reg. V. Hunter, False Pretences, 150 ; Threatening Letters, 465.
Reg. V. Hurley, Forgery, 187.
Reg. V. Hurrell, Perjury, 415.
Reg. V. Hurse, Coining, 95.
Reg. V. Hurstield, Counsel, 531.
Reg. V. Hutchinson, Muixler, etc., 340.
Reg. V. Huxley, Robbery, 451.
Reg. V. Illidge, Forgery, 202.
Reg. V. Inder, False Pretences, 152.
Reg. V. Inder, Forgery, 211.
Reg. V. Ingham, Murder, etc., 372.
Reg. V. Ion, Forgery, 211, 225.
Reg. V. Isaacs, Murder, etc., 353.
Reg. V. Israel, Procedure and Practice, 504.
Reg. V. Jackson, Embezzlement, 119 ; Larceny, 244, 259; Murder, etc.,
328, 882.
Reg. V. Jacobs, Evidence, 541.
Reg. V. James, Assault and Battery, 48 ; Evidence, 569 ; Forgery, 204,
227 ; Malicious Injury, 314 ; Murder, etc., 355 ; Procedure and
Practice, 474, 491.
Reg. V. Jankowski, Evidence, 536.
Reg. V. Janson, Larceny, 244.
Reg. V. JaiTald, Burglary, 77.
Reg. V. JarvLs, Adulteration of Food, 36 ; Coining, 93 ; Evidence, 536.
Reg. V. Jeans, Malicious Injury, 322.
Reg. V. Jeffries, Principals, etc., 26.
Reg. V. Jellyman, Evidence, 564 ; Sodomy, etc., 456.
Reg. V. Jenkins, Larceny, 245 ; Murder, etc., 378 ; Rape, etc., 435.
Reg. V. Jennings, Crim. Inf., 1 1 ; Larceny, 256, 299.
Reg. V. Jennison, False Pretences, 148, 149, 158.
Reg. V. Jepson, Tlireatening Letters, 463.
Reg. V. Jessop, False Pretences, 160.
Beg. V. Jewell, Coets, 618.
TABLE OF CASES, DIGESTED. xxxv
Reg. V. Jewett, Larceny, 281.
Ee^. V.Johnson, Assault and Battery, 48 ; Bail, 611 ; Evidence, 550,
5o8 ; Forgery, 204 ; Larceny, 235, 266, 274, 294 ; Murder, etc.,
330 ; New Trial, 583 ; Procedure and Practice, 507 ; Rape,
etc, 436.
Reg. V. Johnston, Evidence, 543 ; False Pretences, 158.
lieg. V. Jones or Janes« Arson, 39.
Reg. V. Jones, Bigamy, 63, 64 ; Burglary, 68, 69 ; Coining, 95, 96, 97 ;
Counsel, 529 f Evidence, 575 ; False Pretences, 147, 148, 169 ;
Larceny, 238, 255, 277, 278, 279 ; Malicious Injury, 314; Mur-
der, etc, 359, 362 ; Poaching, 386 ; Procedure and Practice, 474,
482 ; Punishment, 600 ; Rape, etc., 430 ; Sea, Offences at, 453 ;
Threatening Letters, 463, 464, 466.
R^, V. Jordan, Counsel, 533 ; Persons capable of Crimes, 24 ; Rape,
etc, 430, 431,437.
R^. V. Joyce, Forgery, 208.
Reg. V. Eain, Threatening Letters, 461.
Reg. V. Kay, False Pretences, 164 ; Larceny, 242.
Reg. V. Kealcy, False Pretences, 168.
Reg. V- Keane, Procedure and Practice, 475.
Reg. V. Keena, Embezzlement, 137.
R^. V. Keighley, False Pretences, 156.
Reg. V. Keith, Forgery, 179.
Reg, V. Kelley, Murder, etc., 330.
Reg. V, Kelly, Larceny, 260.
Reg. V. Kenrick, Conspiracy, 107, 117; False Pretences, 154; Pro-
cedure and Practice, 504.
Reg. V. Kerr, Evidence, 544 ; Larceny, 264.
Reg, V. Kerrigan, Evidence, 563.
Reg. v. Key, Juries, etc, 523, 525.
Reg, T. Keys, Procedure and Practice, 489.
Reg. v. King, Conspiracy, 111 ; Error and Appeal, 593 ; Larceny, 283,
293.
Reg. V. Kinnear, Foi^ery, 182.
Reg. V. Kipps, Abduction of Women, etc, 33.
R^. V. Kirkham, Murder, etc, 334,
R^. F. Kitson, Arson, 46 ; Evidence, 579.
Reg. V. Knight, Procedure and Practice, 513,
Reg. V. Knights, Murder, etc, 336.
R^. v. Kohn, Malicious Injury, 316.
Reg. V. Lacey, Evidence, 570 ; Juries, etc., 524.
Reg. v. LaHament, Murder, etc, 357.
Reg, X, Lamb, Punishment, 600.
Reg. V. Langford, Riots, 444.
Reg. v. Langhurst, Procedure and Practice, 508.
Reg. V. Langmead, Larceny, 250, 282.
Reg. V. Langridge or Langbridge, Evidence, 553.
Reg. V. Larkin, Larceny, 302 ; Procedure and Practice, 489, 502.
Reg. y. Latimer, Crim. In£, 7.
R^. V. Laugher, Evidence, 542.
Reg. V. Lavey, Error and Appeal, 593 ; Perjury, 397.
Reg. V. Law, Persons capable of Crimes, 1 9 ; Procedure and Practice, 498,
Beg. V. Lawes, Burglary, 81,
Reg. V. Lawlor, Perjury, 404.
xxxvi« TABLE OF CASES, DIGESTED.
Reg. V. Lawrence, Procedure and Practice, 507.
Reg. V. Lawson, Crim. Inf., 3.
Reg. V. Layton, Persons capable of Crimes, 19.
Reg. V. Ledbetter, Evidence, 555.
Reg. V. Leddington, Murder, etc., 334.
Reg. V. Ledger, Murder, etc., 335.
Reg. V. Lee, False Pi-etences, 148, 155, 158, 166 ; Forgery, 218 : Mur-
der, etc., 328.
Reg. V. Lees, Error and Appeal, 592.
Reg. V. Leech, False Pretences, 1 69 ; Procedure and Practice, 482.
Reg. V. Leggett, Murder, etc., 342.
Reg. V. Leigh, Persons Capable of Crimes, 20.
Reg. V. Leng, Evidence, 577.
Reg. V. Leonard, False Pretences, 152, 166.
Reg. V. Leppard, Larceny, 244.
Reg. V. Lesley, Sea, Offences at, 453.
Reg. V. Leverson, Evidence, 575.
Reg. V. Levine, False Pretences, 156.
Reg. V. Levy, Evidence, 578.
Reg. V. Lewis, Assault and Battery, 47 ; Error and Appeal, 597 ; Murder,
etc, 349, 357.
Reg. v. Light, Apprehension and Arrest, 605 ; Assault and Battery, 51.
Reg. V. Lines, Rape, etc., 436.
Reg. V. Lister, Embezzlement, 121,
Reg. V. Little, Larceny, 233.
Reg. V. Littleton, Counsel, 531.
Reg. V. London, (Corporation) Procedure and Practice, 519.
Reg. V. London, (Lorn Mayor) Evidence, 561 ; Mayor, etc., Larceny, 809.
Reg. V. Longbottora, Murder, etc., 335.
Reg. V. Longhom, Persons Capable of Crimea, 21.
Reg. V. Lonsdale, Forgery, 205 ; Larceny, 298.
Reg. V. Loose, Embezzlement, 143 ; Larceny, 259.
Reg. V. Lopez, Sea, Offences at, 453.
Reg. V. Lovett, Procedure and Practice, 505.
Reg. v. Low, Larceny, 257.
Reg. V. Lowe, Murder, etc., 343.
Reg. v, Lowrie, Larceny, 270, 275.
Reg, v. Luck, Murder, etc., 332.
Reg. V. Luck or Burdett, Evidence, 571.
Reg. V. Luckhurst, Evidence, 540.
Reg. v. Lucy, Perjury, 419.
Reg. V. Lumley, Bigamy, 64.
Reg. V. Lunny, Murder, etc., 382.
Reg. V. Lyons, Arson, 41.
Reg. V. Lynn, Sepulture, 455.
Reg. V. JViabbett, Murder, etc., 367.
Reg. V. Mabel, Assault and Battery, 50.
Reg. V. Macarthy, Procedure and Practice, 506.
Reg. V. jVIackay, Murder, ete., 378.
Reg. V. Macklin, Larceny, 308.
Reg. V. Mac Millan, Coining, 93.
Reg. V. M'Athey, Larceny, 298.
Reg. V. M'Donald, Embezzlement, 125.
Reg. V. McDonnell, Thi-eatening Letters, 466.
TABLE OF CASES, DIGESTED. xxxvii
Reg. V. M'Cafferty, Treason, 471.^
Reg. V. M'Cartie, Juries, etc., 525.
Reg. V, McCarthy, Larceny, 260.
Reg. V. M'Connell, Forgery, 205.
Reg. V. M'Culley, Larceny, 281.
Reg. V. M'CuUy, Larceny, 288.
Reg. V. M'Gavaran, Rape, etc., 437.
R^. V. McGavaron, Costs, 613.
Reg. V. McGovem, Evidence, 557.
Reg. V. McGrath, Larceny, 243.
R^. V. M'Gregor, Malicious Injury, 816.
Reg. V. McKale, Larceny, 233.
Reg, V. M'Loughlin, Murder, etc., 359.
Reg. V. M'Phane, Murder, etc., 360.
R^. V. M'Pherson, Burglary, 77 ; Misdemeanors, 324.
R&g, V. M'Rue, Raf)e, etc., 431.
Reg. V. Ijiiadge, Larceny, 270.
R^. V. Mahoney, Forgery, 174, 185.
Reg. V. Major, Costs, 616.
R^. Y, Malings, Counsel, 531.
Reg. V. Mallam, Obscenity, etc., 394.
R^. V. Mallinson, Articles of the Peace, 608, 609.
Reg. V. Maloney, Evidence, 560 ; Suicides, 457 ; Verdict, 581.
Reg. V. Manchester, (Mayor) Costs, 618 ; Persons Capable of Crimes, 24.
Reg. V. Mankletow or Manktelow, Abduction of Women, etc., 32.
Reg. V. Manning, Juries, etc., 522 ; Larceny, 235 ; Murder, etc., 349,
350 ; Pei'sons Capable of Crimea, 22, 23 ; Principals, etc., 30.
Reg. V. Mansfield, Larceny, 300, 307 ; Procedure and Pi-actice, 493.
Reg. V. Manwarino^, Bigamy, 62.
Reg. V. Manzano, Evidence, 549.
R^. V. March, Aw ault and Battery, 48.
Reg. V. Marcus, Forgery, 221.
Reg. V. Marks, Embezzlement, 132 ; Procedure and Practice, 502.
Reg. V. Markuss, Murder, etc., 345.
Reg. V. Marriott, Murder, etc., 368.
R^. V. Marsden, Assault and Battery, 52.
R^. V. Marsh, Embezzlement, 131; False Pretences, 165; Misdemean-
ors, 325.
R^. V. Marshall, Crim. Inf., 1 ; Evidence, 557.
Reg. V. Martin, Assault and Battery, 48 ; Coining, 99 ; Coimsel, 530 ;
Error and Appeal, 595, 596, 597 ; False Pretences, 150, 154, 155,
162, 167 ; Larceny, 302 ; JSlisdemeanors, 325 ; Murder, etc., 335,
337 ; Rape, etc., 436, 437.
R^. V. Mason, Perjury, 421.
R^. V. Masters, Embezzlement, 120 ; Error and Appeal, 595.
Reg. V. Mattheson, Larceny, 267.
Reg. V. Matthews, Evidence, 560 ; Larceny, 295, 297.
R^. V. May, Concealment of Births, 104 ; Embezzlement, 127 ; Poach-
ing, 384, 391.
Reg. V. Mayle, Embezzlement, 123.
Reg. V. Mazeau, Forgery, 181.
Reg. V. Mead, Crim. Inf., 1.
Reg. V. Meadham, Poaching, 387.
Reg. V. Meadows, Abduction of Women, etc., 32 ; Counsel, 530.
'
XXXVIU
TABLE OF CASES, DIGESTED.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
V
Meakin, False Pretences, 151.
Meal, Burglary, 68.
Meany, Verdict, 581.
Meaiiey, Treason, 472.
Hears, Conspiracy, 106 ; Misdemeanors, 324 ; Rape, etc., 438.
Medland, Larceny, 246.
Meek, Perjury, 396.
Megson, Murder, etc., 379 ; Rape, etc., 433.
Meigli, Forgery, 204.
Mellor, Error and Appeal, 595 ; Juries, etc., 522.
Menage, Threatening Letters, 461.
Mence, Larceny, 263.
Menliam, Error and Appeal, 595 ; Murder, etc., 349.
Mercer, Rape, etc., 433, 434.
Meredith, AsFault and Battery, 47.
Merry, Poaching, 387, 392.
Miard, Threatening Letters, 459.
Michael, Murder, etc., 331,
Mick, Evidence, 543.
Middleditch, Threatening Letters, 462.
Middleship, Murder, etc., 330.
Miles, Assault and Battery, 48.
Millard, Perjury, 400.
Millen, Embezzlement, 133 ; Evidence, 544, 558 ; Larceny, 296.
Mills, False Pretences, 147, 157.
Milner, Procedure and Practice, 483.
Milnes, Perjuiy, 412,
Milton, Forgery, 207.
Mitchel, Procedure and Practice, 502.
Mitchell, Evidence, 578; Forgery, 184, 206; Procedure and
Practice, 480, 483, 509, 514; Robbery, 451.
Moah, Embezzlement, 134; Forgery, 175 ; Larceny, 261.
Mockford, Ijarceny, 251.
Moir, Evidence, 560.
Moland, False Pretences, 164.
Mole, Larceny, 247.
Money, Larceny, 283.
Moody, Forgery, 211, 215.
Mooney, Murder, etc., 377.
Moore, Evidence, 541, 555 ; Forgeiy, 228 ; Larceny, 249 ; Per-
sons Capable of Crimes, 23.
Mopsey, Forgery, 183.
Moreau, Perjury, 400.
Morgan, Larceny, 240 ; Perjury, 414.
Mortit, Larceny, 251.
Morris, Assault and Battery, 56 ; Concealment of Births, 1 02 ;
Larceny, 271, 276 ; Poaching, 390 ; Procedure and Practice, 494,
510.
V. Morrison, Larceny, 277.
V. Morse, Evidence, 546.
V. Mortlock, Procedure and Practice, 475,
V. Moseley, False Pretences, 1 68.
V. Moss, False Pretences, 162, 167.
V. MuUaney, Perjury, 398.
TABLE OF CASES, DIGESTED. xxxix
R^. V. Muller, Evidence, 553, 560.
Reg. v. Mullins, Evidence, 565, 574.
Reg. V. Munday, Principals, etc., 26.
Reg. V. Munson, Arson, 39, 43.
R^. V. Muntz, Crim. Inf., 15.
R^. V. Miirdock, Embezzlement, 137 ; Procedure and Practice, 481.
Reg. V. Murphy, Conspiracy, 113 ; Evidence, 570 ; Larceny, 266 ; New
Trial, 582 ; Procedure and Practice, 497.
R^. V. Murray, Murder, etc., 341.
Reg. V. Murton, 31urder, etc., 335.
R^. V. Mutters, Larceny, 253.
Reg. V. 31vott, Forgery, 195.
R^. V. Nash, Forgery, 175, 201.
Reg. V. Nay lor. False Pretences, 147 ; Perjury, 410.
Reg. V. Neale, Assault and Battery, 48 ; Rape, etc., 436 ; Riots, 439, 441.
Reg. V. Neville, Perjury, 411.
R^. V. Newall, Perjury, 415.
R^. V. Newhouse, Costs, 621.
Reg. V. Newland, Larceny, 282.
Reg. V. Newman, Crim. Inf., 7 ; New Trial, 584 ; Perjury, 416.
Reg. V. Newton, Bigamy, 65 ; Error and Appeal, 591, 592 ; Evidence,
554, 560; For^ry, 202; Juries, etc., 519, 527; Perjury, 400;
Procedure and Practice, 477, 506.
Reg. V. Nicholas, Rape, etc., 438.
R^. V. Nicholls, Larceny, 307 ; 3Iurder, etc., 359 ; Rape, etc., 437, 488.
Reg. V. Nicholson, Juries, etc., 526.
Reg. V. Nickless, Poaching, 384.
Reg. V. Nicolas, Murder, etc., 379.
Reg. V. Nisbitt, Apprehension and Arrest, 605 ; Forgery, 186.
R^. V. Noake, Embezzlement, 136.
Reg. V. Noakes, Murder, etc., 345.
R^. V. Noon, Murder, etc., 327.
Reg. V. Norman, Embezzlement, 119.
Reg. V. Norris, Malicious Injury, 315.
Reg. V. North, Larceny, 243.
Reg. V. Norton, False Pretences, 167 ; Threatening Letters, 461.
R^. V. Nott, Judgment, etc., 588 ; Perjury, 421.
R^. V. Nottingham Journal, Criminal Information, 13.
Reg. V. Gates, False Pretences, 166, 167.
R^. V. O'Brian, Murder, etc., 373.
Reg. V. O'Brien, Burglary, 76 ; Government Stores, 230 ; Judgment,
etc., 588.
R^. V. O'Connor, Procedure and Practice, 481.
Reg. V. Oddy, Forgery, 225 ; Larceny, 305, 306.
Reg. V. Odgers, Murder, etc., 358 ; Procedure and Practice, 514.
Reg. V. O'Donnell, Pi-ocedure and Practice, 518.
Reg. V. Oldham, Burglary, 76.
Reg. V. Ollifier, Abduction of Women, etc., 34.
Reg. V. OHver, Assault and Batteiy, 53 ; Murder, etc., 362.
Reg. v. Opie, Concealment of Births, 102.
Reg. v. Orchard, Murder, etc., 375 ; Obscenity, etc., 394 ; Procedure
and Practice, 489.
Reg. v. Orgill, Biiramy, 61.
Reg. V. Osborne, Evidence, 556 ; Rape, etc., 433,
TABLE OF CASES, DIGESTED.
Reg. V. Oswestry, (Treasurer), Costs, 614.
Reg. V. Oveiton, Embezzlement, 139 ; Perjury, 397.
Reg. Y. Owen, Evidence, 552 ; Perjury, 418 ; Procedure and Practice,
506,
Reg. V. Oxford, Murder, etc., 357 ; Persons capable of Cranes, 17 ;
Treason, 467.
Reg. V. Oxley, Peijury, 405.
Reg. V. Packard, Murder, etc., 327.
Reg. V. Page, Coining, 95, 96, 98 ; Counsel, 530.
Reg. V. Patce, Arson, 38.
Reg. V. Painter, Evidence, 551.
Reg. V. Palmer, Procedure and Practice, 502.
Reg. V. Pardenton, Railways, etc., 426.
Reg. V. Parfitt, Burglary, 79.
Reg. V. Pargeter, Murder, etc., 343.
Reg. V. Parish, Forgery, 186 : Juries, etc., 521.
Reg. V. Parker, Arson, 37 ; Conspiracy, 111; Evidence, 536 ; False Pre-
tences, 159, 167; Poaching, 389 ; Peijury, 409, 417 ; Procedure
and Practice, 515.
Reg. V. Parkinson, New Trial, 584.
Reg. V. Parr, Larceny, 297 ; Procedure and Practice, 508.
Reg. V. Parsons, Evidence, 578.
Reg. V. Pascoe, Larceny, 310.
Reg. V. Patent Eureka and Sanitary Manure Company, Procedure and
Practice, 486.
Reg. V. Payne, Escape, Rescue, etc., 601.
Reg. V. Pearce, Evidence, 567 ; Perjury, 398 ; Persons capable of Crimes,
21 ; Procedure and Practice, 501.
Reg. V. Pearson, Perjury, 401.
Reg. V. Peck, Conspiracy, 110.
Reg. V. Peel, Evidence, 560 ; Larceny, 269, 803 ; Murder, etc., 377.
Reg. V. Pelham, Murder, etc., 370, 371.
Reg. V. Perkins, Murder, etc., 376, 379 ; Principals, etc., 26.
Reg. V. Perry, Concealment of Births, 102; Larcenv, 276; Murder, etc.,
353.
'Reo^ V ^^eters Larcenv 248
Reg. V. Phelps, Murder, etc., 333, 372 ; Procedure and Practice, 509, 514;
Riote, 441.
Reg. V. Phetheon, Larceny, 246.
Reg. V. Philips, Evidence, 559.
Reg. V. Phillips, Asf^ault and Battery, 47 ; Coming, 92; Juries, etc., 522;
Persons capable of Crimes, 24; Procedure and Practice, 477; Rape,
etc., 430; Riots, 444.
Reg. V. Phillix>t, Murder, etc., 369.
Reg. V. Phillpotts, Perjury, 397; False Pretences, 161.
Reg. V. Pickles, Crim. Inf., 16.
Reg. V. Pike, Forgery, 176, 204.
Reg. V. Pierce, Larceny, 249 ; Procedure and Practice, 484, 518, 519.
Reg. V. Pikesley, Evidence, 556.
Reg, V. Pillinff, Forgery, 206.
Reg. V. Pitts, Larceny, 292 ; Murder, et<J., 329 ; Procedure and Practice,
492.
Reg. V. Plummer, Murder, etc., 336.
Reg. V. Pocock, Murder, etc., 336.
TABLE OF CASES, DIGESTED. xU
R^. V. Polly, BuTglaiy, 81.
Beg, V. Poole, Larceny, 234,
Reg. V. Porter, Murder, etc., 370.
Reg. V. Potter, Burglary, 78.
R^. V. Povey, Bigamy, 62, 65.
Reg. V. Powell, Larceny, 275 ; Procedure and Practice, 493.
Be§, V. Poyiiton, Larceny, 262.
R^. v. Poyser, Larceny, 247.
Reg. V. Pratt, Larceny, 235, 307 ; Poaching, 384.
Reg. V. Prebble, Assault and Battery, 50.
Reg. V- Pres8y, Rape, etc., 430.
Reg. V. Prestney, Malicious Injury, 321 ; Poaching, 888.
Re^, V. Preston, Larceny, 248.
R^. V. Price, Arson, 43 ; Bail, 612 ; Murder, etc., 359 ; Poaching, 388 ;
Procedure and Practice, 474.
Reg. V. Pries, Forgery, 203.
Reg. V. Priest, Evidence, 544.
Reg. V. Primelt, Abduction of Women, etc., 34.
Reg. V. Prince, Larceny, 233, 253.
R^. V. Pringle, Forgery, 210, 219 ; Personation, 424.
Reg. V. Pritchard, Larceny, 291 ; Procedure and Practice, 501.
Reg. V. Privett, Larceny, 251.
Reg. V. Probert, Costs, 619.
Reg. V. Proud, Embezzlement, 132, 136 ; Perjurv, 402.
Reg. V. Pulbrook, Forgery, 203.
R^. V. Puddick, Counsel, 534.
Reg. V. Pnlham, Principals, etc., 30.
Reg. V. Purchase, Embezzlement, 136 ; Procedure and Practice, 514.
R^. V. Quail, Principals, etc., 26.
Reg. V. Qualter, Murder, etc., 379.
Reg. y. Quigley, Evidence, 552.
Reg. V. Quill, Evidence, 560.
R^. V. Kaake, Forgery, 208.
Reg. V. Kadclitfe, Procedure and Practice, 494.
Reg. V. Kadford, Forgery, 225.
Reg. V. Radley, Larceny", 299.
Reg. V. Ragfir, False Pretences, 157.
Reg. V. Ramsden, Robbery, 449.
Reg. V. Rathbone, Larceny, 263.
Reg. V. Rawlins, Perjury, 401. •
Reg. V. Rea, Crim. Inf., 3, 9.
Reg. V. Read, Assault and Battery, 48 ; Rape, etc., 437.
Reg. V. Reade, Conspiracy, 117.
Reg. V. Reaney, Murder, etc., 377.
Reg. V. Reardon or Rearden, Larceny, 297.
Reg. V. Rearden, Burglary, 81 ; Evidence, 576 ; Rape, etc., 435.
Reg. V. Reason, Larceny, 261.
Reg. V. Redford, Embezzlement, 132.
Reg. V. Redman, Threatening Letters, 461.
Reg. V. Reed, Forgery, 208 ; Larceny, 238, 248, 256; Obscenity, etc., 395.
Reg. V. Reeves, Larceny, 259.
Reg. V. Regan, Arson, 46 ; Evidence, 537.
Reg. V. lieid, Robbery, 445, 452.
R^- V. Rendle, Juries, etc., 520.
3dii TABLE OF CASES, DIGESTED.
Reg. V. Renshaw, Murder, etc., 369.
Reg. V. Reynolds, Ex parte. Poaching, 392.
Reg. V. Rice, Larceny, 278.
Reg. V. Richards, Counsel, 530 ; Evidence, 553 ; Larceny, 238 ; Persons
ca])able of Crimes, 20 ; Threatening Letters, 462.
Reg. V. Richai'dson, Embezzlement, 189 ; False Pretences, 152 ; Judg-
ment, etc., 589 ; Murder, etc., 353.
Reg. V. Richmond, Coining, 91 ; Forgery, 195; Procedure and Practice,
515.
Reg. V. Rider, Counsel, 531.
Reg. V. Ridgway, False Pretences, 157.
Reg. V. Rigby, Procedure and Practice, 476.
Reg. V. Rigg, Evidence, 552.
Reg. V. Rile:y, Evidence, 557, 561 ; Larceny, 237 ; Poaching, 390.
Reg. V. Rinaldi, Forgery, 181.
Reg. v. Ritson, Forgery, 191.
Reg. V. Robb, Abduction of Women, etc., 34.
Reg. V. Roberts, Coining, 91; Forgery, 183, 205 ; Larceny, 236; Peijury,
417.
Reg. V. Robertson, Threatenins^ Letters, 459.
Reg. V. Robins, Abduction of Women, etc., 82 ; False Pretences, 164;
Larceny, 242 ; Rape, etc., 434 ; Sodomy, etc., 457.
Reg. v. Robinson, Coining, 84; Evidence, 580; False Pretences, 161 ;
Larceny, 287, 302, 307.
Reg. v. Robson, Forgery, 219; Larceny, 258, 259; Procedure and
Practice, 508.
Reg. v. Rod way. Larceny, 241.
Reg. v. Roebuck, False Pretences, 155.
Reg. v. liogers. Coining, 94, 95 ; Forgery, 184, 219 ; Larceny, 263, 297,
303.
Reg. V. Rooke, Railways, etc., 426. ^
Reg. V. Rosenberg, Larceny, 252.
Reg. v. liowe. Larceny, 249, 290.
Reg. v. Rowed, Sodomy, etc., 456.
Reg. V. Rowlands, Conspiracy, 108, 111.
Reg. v. Rowton, Evidence, 573.
Reg. V. Roxburgh, Assault and Battery, 49, 52.
Reg. V. Rudick, liobbery, 449.
Reg. V. Rudland, Rape, etc., 430.
Reg. V. Rundle, Murder, etc., 370.
Reg. V. Russell, Arson, 37 ; Evidence, 553 ; Juries, etc., 521 ; New Tri-
al, 583.
Reg. V. Ruxton, Procedure and Practice, 503.
Reg. V. Ryan, Murder, etc., 352.
Reg. V. Rycroft, Conspiracy, 113.
Reg. V. Ryland, Murder, etc., 368; Rape, etc., 436.
Reg. V. Rymes, False Pretences, 170 ; Procedure and Practice, 500.
Reg. V. Salt, Forgery, 228.
Reg. V. Salvi, Procedure and Practice, 511.
Reg. V. Sam ways. Larceny, 305.
Reg. V. Sanders, Assault and Battery, 5 1 ; Burglary, 78.
Reg. V. Sanderson, Poaching, 387 ; Railways, etc., 426.
Reg. V. Sandys, Murder, etc., 373.
Reg. y. SauBome, Evidence, 550, 554.
TABLE OP CASES, DIGESTED. xliii
R^. T. Sargent, Forgery, 210.
Reg. V. Sandield, Larceny, 301.
Reg. V. Sattler, Sea, Offences at, 453 ; Murder, etc., 349.
Reg. V. Saunders, Bail, 612 ; Grim. Inf., 9 ; Rape, etc., 429.
R^. V. Savage, Procedure and Practice, 507.
Reg. V. Savile, Grim. Inf., 1 6.
Reg. V. Saward, Larceny, 254.
Reg. T. Scaife, Bail, 611 ; Evidence, 557; Judgment, etc., 589; New
Trial, 582.
Reg. V. Schlesinger, Perjury, 396, 409, 415.
Reg. V. Schleter, Procedure and Practice, 505.
Reg. V. Schmidt, Larceny, 296.
Reg. V. Scott, Procedure and Practice, 490.
R^. V. Scotton, Perjury, 400.
R^. V. Sell, Procedure and Practice, 505.
Reg. V. Selten, Murder, etc., 334, 337.
Reg. V. Selway, Larceny, 267.
R^. V. Serva, Evidence, 570 ; Mui-der, etc., 348 ; Procedure and Pi-ac-
tice, 494.
Reg. V. Sharman, Misdemeanors, 324 ; Forgery, 176.
Reg. V. Sliarpe, Forgery, 197 ; Procedure and Practice, 484; Riots, 440;
Sepulture, 455.
Reg. V. Shaw, Perjury, 401.
Reg. V. Shelbum, Evidence, 562.
Reg. V. Shellard, Conspii-acy, 114; Evidence, 562.
Reg. V. Shepherd, Larceny, 262, 272 ; Murder, etc., 368.
Reg. V. Sheppai-d, Arson, 42 ; larceny, 280.
R^. V. Sherlock, Assault and Battery, 51.
Reg. V. Sherwood, False Pretences, 157.
lieg. V. Shickle, Larceny, 288.
R^. \. Shott, Rape, etc., 437.
Reg. V. Shrimpton, Evidence, 577.
Reg. v. Shuttleworth, Evidence, 577.
Reg. V. Sills, Evidence, 567.
Reg. V. Simmonds, False Pretences, 168.
R^. V. Simmons, Perjury, 401.
Bfiv, V. Simmonsto, Bigamy, 65.
R^. V. Simpson, Larceny,' 245, 266 ; Procedure and Practice, 485 ;
Riots, 444.
lieg. V. Skeen, Embezzlement, 144 ; Procedure and Practice, 504.
Reg. V. Skeet, Murder, etc., 328, 349.
Reg. V. Skelton, Goncealment of Births, 103.
lieg. V. Slecman, Evidence, 540, 541.
Reg. V. Sleep, Government Stores, 230 ; Goncealment of Births, 102.
Reg. V. Slingsby, Larceny, 277.
Reg. V. Smith, Bigamy, 64 ; Error and Appeal, 596,597; Evidence, 551,
562; False Pretences, 156, 161; Forgery, 175, 182, 187, 199,
205, 211, 215, 219, 228 ; Larceny, 235, 250, 255, 264, 276, 295;
Malicious Injury, 31 1 ; Murder, etc., 327, 328, 337, 355, 359,
369, 370, 372, 377 ; Peijury, 408, 413, 422 ; Persons capable of
Crimes, 23 ; Procedure and Practice, 476, 492 ; Threatening Let-
ters, 458.
Reg. V. Sraythies, Bigamy, 64 ; Forgery, 223 ; Procedure and Practice,
503.
xliv
TABLE OF CASES, DIGESTED.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg,
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg-
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
Reg.
V. Snelling, Forgery, 207.
V. Soutliey, Counsel, 529 ; Procedure and Practice, 504.
V. South wood. Perjury, 408.
V. Sparks, Evidence, 563.
V. Sparrow, Assault and Battery, 53 ; Crim. Inf., 15 ; Murder, etc.,
362.
V. Spalding, Perjury, 419.
V. Spencer, Arson, 43 ; Murder, etc., 346 ; Poaching, 388.
V. Spicer, Larceny, 281.
V. Spilling, Murder, etc., 345.
V. Spooner, Murder, etc., 359.
V. Stainer, Embezzlement, 133 ; Forgery, 176.
V, Stanbury, False Pretences, 170.
V. Stanhope, Articles of the Peace, 610.
V. Stanton, Rape, etc., 429.
V. Stear, Error and Appeal, 596 ; Larceny, 246.
V. Steel, Conspiracy, 112.
V. Steels, False Pretences, 153.
V. Stephens, Persons capable of Crimas, 17 ; New Trial, 582.
V. Stephenson, Evidence, 558 ; Procedure and Practice, 485.
V. Stevenson, Adulteration of Food, 36.
V. St. George, Assault and Battery, 47 ; Murder, etc., 355 ; Pro-
cedure, 505.
V. St. John, Procedure and Practice, 485.
V, Stockley, Procedure and Practice, 475.
V, Stoke, Larceny, 291.
V. Stokes, Error and Appeal, 592 ; Evidence, 543 ; Persons capable
of Crimes, 18 ; ProccJdure and Practice, 483, 488 ; Murder, etc.,
373.
V. Stolady, Peijury, 407, 408.
V. Stone, False Pretences, 168 ; Forgery, 208 ; Perjury, 399 ; Pro-
cedure and Practice, 487.
V. Stowell, Procedure and Practice, 476.
V. Storwood, Crim. Inf., 11.
V. Strahan, Paul and Bates, Procedure and Practice, 504.
v. Strange, Larceny, 283.
V. Stringer, Robbery, 447, 451.
V. Stripps, Evidence, 545.
V. Stroner, Rape, etc., 433.
V. Stroud, Murder, etc., 375.
V. Stubbs, Error and Appeal, 595 ; Evidence, 562.
V. Studd, Error and Appeal, 596 ; Forcible Entry, 172.
V. Sturge, Procedure and Practice, 502.
V. Sullivan, Murder, etc., 360 ; New Trial, 583.
V. Siunmera, Judgment, etc., 588.
v. Sunley, Government Stores, 230.
V. Sutcliffe, Evidence, 536.
V. Suter, False Pretences, 156.
V. Sutton, Larceny, 288.
V. Swain, Juries, etc., 524.
V. Sweenie, Rape, etc., 429.
V. Swindall, Murder, etc., 336, 341.
V. Swinnerton, Evidence, 554.
V. Taifs, Embezzlement, 132.
TABLE OF CASES, DIGESTED. xIt
Reg. V. Tait, Evidence, 558.
Reg. V. Tate, Perjury, 410.
Reg. V. Taunton, Robbery, 449. , ^«„
ReS V. Taylor, Arson, 43, 46 ; Assault and Battery, 48 ; Counsel, 53o ;
° Evidence, 541, 549, 560, 576; Forgery, 190, 206 ; Murder, etc.,
342, 358, 379 ; Procedure and Pi-actice, 476 ; Threatening Let-
ters, 459.
Reg. V. Tempest, Procedure and Practice, 508.
Reg. V. Teste, Counsel, 532.
Reg. V. Tew, Evidence, 569.
Reg. v. Thallman, Obscenity, etc., 394.
Reg. V. Thomas, Counsel, 530 ; Embezzlement, 127 ; Error and Appeal,
597 ; Larceny, 241 ; Perjury, 415 ; Treasure Trove, 472.
R<». V. Thompson, Burglary, 77, 79 ; Conspiracy, 107, 117 ; False Pre-
tences, 153 ; Larceny, 236, 253, 257.
R^. V. Thorn, Forgery, 208.
Reg. V. Thomhill, Peijury, 413.
Reg. V. Thornton, Costs, 621.
Reg. V. Thorpe, Embezzlement, 126.
Reg. V. Thristle, Larceny, 234, 238.
R^. V. Thnrbom, Larceny, 247.
Reg. V. Thur-sfield, Counsel, 531.
Reg. V. Tiddeman, Threatening Lettere, 465.
Reg. V. Tilson, Bigamy, 62.
Reg. V. Timmins, Abduction of Women, etc., 33.
Reg. V. Timothy, Conspiracy, 115.
Reg. V. Tinkler, Abduction of Women, etc., 33.
Reg. V. Uppin, Larceny, 293.
Reg. V. Tite, Embezzlement, 127.
Reg. V. Tivey, Malicious Lijury, 322.
Reg. V. Toakley, Counsel, 533.
Reg. V. Tollemache, Articles of the Peace, 609.
R^. V. Tollett, Larceny, 252.
Reg. V. Tolson, Bigamy, 65.
Reg. V. Tomiinson, Perjury, 396.
Reg. V. Tongue, Embezzlement, 124, 131.
Reg. V. Toole, Procedure and Practice, 491 ; Ti-easure Trove, 473.
R^. V. Topping, Bigamy, 61.
Reg. v. Toshack, Forgery, 175, 220.
Reg. V. Townley, Persons capable of Crimes, 19.
Reg. V. Townsend, Embezzlement, 129, 133.
Reg. V. Trainer, Murder, etc., 344.
Reg. V. Trebilcock, Error and Appeal, 595 ; Larceny, 238, 247.
Reg. V. Treniield, Forgery, 218, 220.
Reg. V. Trevenner, Larceny, 268.
Reg. V. Trilloe, Mui-der, etc., 329.
R^. V. Trueman, Bigamy, 65 ; Procedure and Practice, 495 ; Embezzle-
ment, 129.
R^. V. Tryddyn, Procedure and Practice, 515.
Reg. V. Tubertield, Evidence, 574.
Reg. V. Tuckwell, Larceny, 265 ; Principals, etc., 26.
Reg. V. Tufts, Forgery, 212.
Reg. V. TuUy, False Pretences, 165.
R^. V. Turberville, Forgery, 206.
xlvi TABLE OF CASES, DIGESTED.
Reg. V. Turner, Coining, 85; Concealments of Births, 103; Murder, etc.,
339 ; Peijury, 415; Poaching, .392; Procedure and Practice, 486.
Reg. V. Turpin, Forgery, 189.
Reg. V. Turton, Persons capable of Crimes, 21.
Reg. V. Tylney, Forgery, 226.
Reg. V. Tyler, Murder, etc., 350 ; Persons capable of Crimes, 25 ; Princi-
pals, etc., 30.
Reg. V. Tylney, Evidence, 575 ; Forgery, 212.
Reg. V. Tyrie, Embezzlement, 132.
Reg. V. Tyson, Perjury, 410.
Reg. V. Uezzell, Poaching, 384, 386, 390.
Reg. V. Upton, Railways, etc., 427.
Reg. V. Upton St. Leonards, Crim. Lif., 11, 16.
Reg. V. Vaile, Personation, 424.
Reg. V. Vamplew, Persons capable of Crimes, 24.
Reg. V. Vanderstein, Forgery, 207, 225.
Reg. V. Vaughan, Forgery, 209.
Reg. V. Vann, Misdemeanors, 323.
Reg. V. Verrier or Virrier, Perjury, 405.
Reg. V. Virrier, Procedure and Practice, 501.
Reg. V. Vincent, Conspiracy, 114 ; Evidence, 571 ; Larceny, 291 ; Pro-
cedure and Practice, 500 ; Riots, 439.
Reg. V. Vivian, Forgery, 206.
Reg. V. Vodden, Verdict, 581.
Reg. V. Vyse, Persons capable of Crimes, 19.
Reg. V. Waddiugton, Crim. Inf., 16.
Reg. V. Wade, Larceny, 295.
Reg. V. Wadsworth, Larceny, 233.
Reg. V. Wagstaffe, Murder, etc., 368.
Reg. V. Waldegrave (Earl), Costs, 617, 619.
Reg. V. Walford, Evidence, 562.
Reg. V. Walkden, Assault and Battery, 48.
Reg. V. Walker, Assault and Battery, 50 ; Embezzlement, 126 ; Larceny,
305 ; Murder, etc., 864 ; Procedure and Practice, 510 ; Rape,
etc., 433.
Reg. V. Walking, Counsel, 531.
Reg. V. Walkly, Evidence, 544.
Reg. V. Wallace, Malicious Injury, 316, 317; Procedure and Practice,
485, 503.
Reg. V. Waller, Larceny, 244, 258.
Reg. V. Wallis, Larceny, 238.
Reg. V. Walsh, Evidence, 551.
Reg. V. Walters, Forgery, 203 ; Murder, etc., 368, 369.
Reg. v. Waltham, Murder, etc., 359.
Reg. V. Walton, Threatening Letters, 459.
Reg. V. Ward, Evidence, 554; Juries, etc., 528; Larceny, 290, 302;
Threatening Letters, 466.
Reg. v. Warden, S'orgery, 189.
Reg. V. Wai-dle, Juries, etc., 521.
Reg. V. Wardroi^er, Larceny, 252.
Reg. V. Warman, Murder, etc., 381.
Reg. V. Warren, Larceny, 258.
Reg. V. Warringham, Evidence, 542, 548.
Reg. V. Watere, Costs, 614; Murder, etc., 369, 375; Procedure and
Practice, 491.
TABLE OF CASES, DIGESTED. xlvii
Reg. V. Watkins, Robber}', 445.
Reg. r. Watson, Evidence, 555 ; False Pretences, 154; Obscenity, etc.,
393.
Reg. V. Watts, Evidence, 551 ; Larceny, 275, 291.
Reg. V. Wavertoii, Procedure and Practice, 488.
Reg. V. Webb, Counsel, 534 ; Error and Appeal, 595 ; Evidence, 567 ;
Larceny, 242 ; Obscenity, etc., 393.
Reg. V. Webster, Larceny, 245, 293 ; Perjury, 407, 418 ; Procedui-e and
Practice, 501.
Reg. V. Weeks, Coining, 92 ; Evidence, 576.
Reg. V. Welcli, Coining, 84, 95 ; Embezzlement, 129, 188.
Reg. v. Woller, Evidence, 551.
Reg. v. W^ells, Larceny, 259.
Reg. V. Welman, False Pretences, 168.
Reg. V. AVelsh, Evidence, 544.
Reg. v. Welton, Evidence, 558 ; Procedure and Practice, 501.
Reg. V. Wenmouth, Burglary, 77, 78.
Reg. V. W^eslev, Poaching, 388.
Reg. V. West, Coining, 96 ; False Pretences, 147 ; Forgery, 207, 210 ;
larceny, 248, 277, 299 ; Murder, etc., 354 ; Procedure and Prac-
tice, 493.
Reg. V. W^estem, Poaching, 385 ; Procedure and Practice, 502.
Reg. V. Westley, Assault and Batteiy, 57 ; Perjury, 410 ; Procedure and
Practice, 488, 500.
Reg. V. W^halley, Juries, etc., 527.
Reg. V. Wheater, Forgery, 227.
Reg. V. Wheatland, Perjury, 412.
Reg. V. Wheeldon, Burglary, 68, 69.
Reg. V. Wheeley, Evidence, 547.
Reg. V. Whiley, Bigamy, 64.
R^. V. W^hite, Counsef, 532 ; Embezzlement, 123 ; Evidence, 549, 561,
5G-2; Forgery, 187, 188, 204; Larceny, 254, 277, 307.
Reg. v. Whitehead, Burglary, 77 ; Evidence, 566 ; Larceny, 294 ; Mur-
der, etc., 345.
Reg. V. Whitehouse, Conspiracy, 116, 117 ; New Trial, 583, 584; Per-
jury, 407.
Reg. V. Whitcman, Malicious Injury, 319, 321.
Reg. V. Whittield, Persons capable of Crimes, 22.
Reg. V. Whittaker, Apprehension and AiTest, 606 ; Poaching, 384, 386.
Reg. V. Whittingham, Malicious Injury, 315.
Reg. V. Whitwoith, Murder, etc., 377.
Reg. V. Whybrew, Peijurv, 415.
Reg. V. Whyte, Forgery, 183.
Reg. V. Wicker, Evidence, 558.
Reg. v. Wickham, False Pretences, 1 60.
Reg. V. Wiggins, Evidence, 550.
Reg. V. Wiley, Larceny, 295.
Reg. V. Wilkins, Murder, etc., 352 ; Robbery, 450.
Reg. V. Wilkinson, Evidence, 547.
Reg. V. Wilks, Costs, 619.
Reg. v. Willianis, Bail, 611 ; Coining, 93; Concealment of Births, 105;
Costs, 617 ; Error and Appeal, 596 ; Evidence, 559, 560 ; Foi^^ery,
203, 206, 21 9, 229 ; Larceny, 247, 275, 282 ; Malicious Injury, 319,
321 ; Murder, etc., 351 ; Rape, etc., 429 ; Threatening Letters, 466.
xlviii TABLE OP CASES, DIGESTED.
Reg. V. Williamson, False Pretences, 151.
Keg. V. Willis, Murder, etc., 375.
Reg. V. Willmett, Government Stores, 231.
Reg. V. Willraer, Crim. Inf., 5.
Reg. V. Willson, Larceny, 241.
Reg. V. Wilshaw, Evidence, 557.
Reg. V. Wilson, Bigamy, 63 ; Costs, 618; Evidence, 559 ; Forgery, 174,
176, 188 ; Larceny, 250, 302 ; Murder, etc., 353 ; Procedure and
Practice, 476,491.
Reg. V. Wilton, Evidence, 559 ; Forgery, 208.
Reg. V. Winbow, Larceny, 290.
Reg. V. Windsor, Evidence, 542.
Reg. v. Winnall, Embezzlement, 125.
Reg. v. Winslow, Murder, etc., 380. *
Reg. V. Winterbottom, Forgery, 182.
Reg. V. Withers, Procedure and Practice, 476.
Reg. V. Wollez, In re Hart, Larceny, 309.
Reg. V. Wolverhampton, Recorder, Obscenity, etc., 393.
Reg. v. Wood Ditton, Procedure, 475.
Reg. V. Wood, Larceny, 247, 307; Poaching, 388, 391 ; Procedui-e and
Practice, 475, 483.
Reg. V. Woods, Counsel, 531.
Reg. V. Woodhead, Evidence, 570.
Reg. V. Woodward, Larceny, 251, 296.
Reg. V. Woolley, Embezzlement, 130, 131, 136 ; Error and Appeal, 597;
False Pretences, 147.
Reg. V. Woolmer, Crim. Inf., 4, 5.
Reg. V. Worley, Perjury, 410.
Reg. V. Wortley, Burglary, 73 ; Embezzlement, 121 ; Larceny, 290.
Reg. V. Wright, Concealment of Births, 1 03 ; Larceny, 257 ; ]Murder,
etc., 330 ; Procedure and Practice, 500 ; Rape, etc., 430.
Reg. V. Wycherley, Juries, etc., 521 ; Murder, etc., 354.
Reg. V. Wynn, Larceny, 261, 264.
Reg. V. Yates, Conspiracy, 111 ; Perjury, 397, 417; Threatening Let-
ters, 465.
Reg. V. Yeadon, Assault and Battery, 53 ; Murder, etc., 362.
Reg. V. York, Larceny, 248; Verdict, 581.
Reg. V. Young, Duelling, 118; Evidence, 553, 567; Larcen}, 263;
Murder, etc., 334; Prize Fights, 425 ; Procedure and Practice,
495.
Reg. v. Yscuado, Counsel, 529.
Reg. V. Zeigei*t, Forgery, 181.
Reg. V. Zulueta, Procedure and Practice, 505.
Reg. V. , Coining, 95 ; Concealment of Births, 105 ; Costs, 617;
Obscenity, etc., 394.
Reynolds, Ex ])arte. Poaching, 392.
Rex V. , Procedure and Practice, 489.
Rex V. Abgood, Threatening Letters, 465.
Rex V. Abmgdon, (Lord) Crim. Inf , 2.
Rex V. Abraham, Procedure and Practice, 477.
Rex V. Abrahat, Larceny, 289.
Rex V. Adams, Larceny,* 239, 250, 289 ; Procedure and Practice, 516.
Rex V. Addis, Muixler, etc., 331.
Rex V. Adey, Evidence, 573.
TABLE OF CASES, DIGESTED. xUx
— ■--■■■ - ■■ * - III I
Rex V. Aickles, Forgery, 174 ; Larceny, 240, 306.
Rex T. Airey, False Pretences, 146.
Rex V. Allen, Larceny, 283 ; Murder, etc., 342 ; Procedure and Practice,
485; Sodomy, etc., 456.
Rex V. Allison, Bigamy, 59.
Rex V. Amey, Larceny, 284.
Rex v. Anderson, Murder, etc., 339.
Rex V. Andrews, Poaching, 385, 390.
Rex V. Antrobus, Murder, etc., 383.
Rex V. Appleby, Evidence, 544.
Rex V. Archer, Crim. Inf., 15 ; Persons capable of Crimes, 22.
Rex V. Aris, Arson, 43.
Rex V. Arscott, Forgery, 20rf, 224.
Rex V. Afihbum, Perjury, 41 9f
Rex V. Ashton, Malicious Injury, 811.
Rex V. Askew, New Trial, 584.
Rex V. Aslett, Embezzlement, 137 ; Larceny, 276.
Rex V. Ast, Evidence, 567.
Rex V. Asterley, False Pretences, 149.
Rex V. Astley, Robbery, 446.
Rex V. Athay, Crim. Inf., 8.
Rex V. Athea, Burglary, 74.
Rex V. Atkins, Procedure and Practice, 473.
Rex V. Atkinson, Forgery, 184 ; Murder, etc., 358.
Rex V. Ayes, Murder, etc., 339.
Rex V. Aylett, Perjury, 395, 405.
Rex V. Backler, Forgery, 188.
Rex V. Badcock, Forgery, 214.
Rex V. Bailey, Burglary^ 67, 74 ; Murder, etc., 347.
Rex V. Baker. Forgery, 202 ; Robbery, 447.
Rex V. Baldwin, Principals, etc., 30.
Rex V. Ball, Arson, 44.
Rex V. Ball, Forgery, 227 ; Murder, etc., 331 ; Perjury, 422.
Rex V. Balls, Forsrery, 228.
Rex V. Bamfield, If'orgery, 204.
Rex V. Bangor, (Bishop), Riots, 440.
Rex V. Banks, Larceny, 245.
Rex V. Barham, Poaching, 385.
Rex V. Barker, Crim. Inf., 8 ; Rape, etc., 484.
Rex V. Barnard, Evidence, 563 ; False Pretences, 148.
Rex V. Barnes, Costs, 615.
Rex V. Bamett, Procedure and Practice, 495, 518.
Rex V. Barratt, Crim. Inf., 11.
Rex V. Barrett, Costs, 621 ; Procedure and Practice, 505.
Rex V. Bartlett, Evidence, 544 ; J^Ialicious Injury, 313.
Rex v. Barton, Forgery, 219.
Rex V. Bartrura, Costs, 621.
Rex V. Bass, Embezzlement, 123.
Rex V. Batt, Riot, 443.
Rex V. Battery, Forgery, 212.
Rex V. Baxter, Larceny, 302.
Rex V. Baylis, Crim. In£, 8.
Rex V. Beacall, Embezzlement, 123, 137, 138.
Rex V. Beardmore, Bail, 612 ; Procedure and Practice, 508.
Fish. Dig.— D.
1 TABLE OF CASES, DIGESTED.
Rex V. Beavan, Forcible Entry, 170.
Rex V. Beckett, Murder, etc., 859.
Rex V. Beecbey, Embezzlement, 128.
Rex V. Beezely, Evidence, 571.
Rex V. Bell, Coining, 93 ; Evidence, 546.
Rex V. Belstead, Larceny, 289.
Rex V. Benesech, Perjury, 396.
Rex V. Benfield, Assault and Battery, 53 ; Crim. Inf., 2, 6.
Rex V. Bennett, Burglary, 71.
Rex V. Benson, Perjury, 411.
Rex V. Bentley, Evidence, 546.
Rex v. Bigg, Forgery, 177.
Rex v. BiTlingham, Piize Fights, 425.
Rex V. Bingley, Forgery, 215 ; Robbery,, 448.
Rex v. Birch, Forgery, 220.
Rex v. Birdseye, Larceny, 305.
Rex V. Birkett, Evidence, 563 ; Forgery, 183, 184, 216, 223.
Rex V. Birmingham, Bigamy, 60.
Rex V. Birt, Riots, 439.
Rex V. Bishop, Crim. Inf., 9.
Rex V. Bispham, Evidence, 574.
Rex V. Bitton, Procedure and Practice, 504.
Rex V. Blackham, Robbery, 446.
Rex V. Blackson, Principals, etc., 29.
Rex V. Blick, Larceny, 279, 306.
Rex V. Boby, Costs, 614.
Rex V. Bodle, Evidence, 571.
Rex V. Bolland, Forgery, 184.
Rex V. Boltz, Judmient, etc., 589 ; New Trial, 584.
Rex V. Bomaster, Bail, 612.
Rex V. Bonner, Murder, etc., 376.
Rex V. Bontien, Forgery, 174.
Rex V. Booker, Bail, 611.
Rex V. Bootyman, Embezzlement, 138.
Rex V. Booth, Murder, etc., 370.
Rex V. Borrett, Embezzlement, 134.
Rex V. Boucher, Threatening Letters, 464.
Rex V. Boulton, Larceny, 292.
Rex V. Bourne, Murder, etc., 339.
Rex V. Bowditch, New Trial, 584.
Rex V. Bower, False Pretences, 153.
Rex V. Bowes, Articles of the Peace, 607.
Rex V. Bowman, Procedure and Practice, 513, 514.
Rex V. Bowyer, Malicious Injury, 317.
Rex V. Box, Forgery, 183.
Rex V. Boyoe, Murder, etc., 364.
Rex V. Bradbury, Evidence, 547.
Rex V. Brady, Murder, etc., 382.
Rex V. Braithwaite, Bail, 611.
Rex V. Bramley, Larceny, 245.
Rex V. Brangan, Procedure and Practice, 480.
Rex V. Brannan, Foi^ry, 229.
Bex V. Brasier, Rape, etc., 438.
Bex y. Brazier, Larceny, 246.
TABLE OF CASES, DIGESTED. li
Rex V. Brewer, Evidence, 575 ; Forgery, 217.
Rex V. Brice, Burglary, 68 ; Counsel, 532 ; New Trial, 582.
Rex V. Briggs, Murder, etc., 360, 361.
Rex V. Bright, Apprehension and Arrest, 604. . (
Rex V. Brinklett, Procedure and Practice, 492.
Rex V. Brisac, Procedure and Practice, 482.
Rex V. Britton, Procedure and Practice, 496.
Rex T. Brodribb, Perjury, 422.
Rex V. Brooke, Bail, 612 ; Costs, 620.
Rex V. Brooks, Larceny, 288.
Rex V. Brown, Burglary 67, 69, 72 ; Evidence, 570 ; Murder, etc., 338 ;
Personation, 424 ; Procedure and Practice, 490 ; liobbery, 446.
Rex V. Browne, Penury, 413, 414.
Rex V. Brunswick, Larceny, 289.
Rex V. Brunton, Evidence, 563.
Rex V. Bull, Crini. Lif., 14.
Rex V. Bunts, Crim. Inf., 14 ; Judgment, etc., 589.
Rex V. Burbon, New Trial, 582.
Rex V. Burdett, Crim. Inf., 6, 14.
Rex V. Burgiss, Forgery. 217 ; Procedure and Practice, 518.
Rex V. Burke, Crim. Inf , 5 ; Forgery, 183.
Rex V. Bum, Crim. Inf, 14. ,
Rex V. Burnett, Sanitary Laws, 453.
Rex V. Burrowes, Burglary, 70.
Rex V. Burrows, Rape, etc., 431.
Rex V. Burton, Embezzlement, 1 25.
Rex V. Bush, Principals, etc., 27.
Rex V. Butler, Msdemeanors, 325 ; Rape, etc, 437.
Rex V. Butteris, Principals, etc., 31.
Rex V. Butterworth, Burglary, 81.
Rex V. Bykerdyke, Conspiracy, 108, 109.
Rex V. Byrne, Crim. Inf., 14.
Rex V. Cabbage, Larceny, 236.
Rex V. Cadman, Murder, etc., 351, 354.
Rex V. Callan, Burglary, 69.
Rex V. Callanan, Perjury, 399.
Bex V. Camfield, Burglary, 74.
Rex V. Campbell, Larceny, 239.
• Rex V. Cannon, Robbery, 447.
Rex V. Capewell, Poaching, 384.
Rex V. Carlile, Bail, 612 ; Error and Appeal, 591.
Rex V. Carney, Forgery, 203.
Rex V. Carr, Embezzlement, 122 ; Murder, etc., 336, 355.
Rex V. Carradice, Larceny, 285.
Rex V. Carrill, Burglary, 71.
Rex V. Carroll, Larceny, 265.
Rex V. Carson, Embezzlement, 137.
Rex V. Carter, Forgery, 217, 222.
Rex V. Cartwright, False Pretences^ 159 ; Misdemeanors, 325.
Rex V. Case, Coining, 85.
Rex V. Cass, Evidence, 537.
Rex V. Catapodi, Forgery, 216. - •
Rex V. Cave, Rape, etc., 431.
Rex V. Chadwick, False Pretences, 167.
I
lii TABLE OF CASES, DIGESTED.
Rex V, Chalking, Burglary, 70.
Rex V. Chalkley, Malicious Injury, 823.
Rex V. Chamberlain, Procedure and Practice, 476, 512.
Rex V. Chamberlayne, Costs, 620.
Rex V. Chappel, Crim. Inf., 10 ; Evidence, 548.
Rex V. Chappie, Malicious Injury, 322.
Rex V. Chard, Larceny, 299.
Rex V. Charlewood, Larceny, 236.
Rex V. Chatbum, Procedure and Practice, 494.
Rex V. Oiecketts, Procedure and Practice, 489.
Rex V. Cheere, Aissault and Battery, 49,
Rex V. Cheeseman, Murder, etc., 346.
Rex V. Cherry, Larceny, 236, 237.
Rex V. Child, Riots, 439.
Rex V. Chipchase, Embezzlement, 122.
Rex V. Christie, Murder, etc., 378.
Rex V. Chubb, Malicious Injury, 313.
Rex V. Cirwan, Coining, 89.
Rex V. Clark, Larceny, 276 ; Murder, etc., 874 ; Procedure and Practice,
491, 512, 517.
Rex V. Clark alias Jones, Procedure and Practice, 509.
Rex V. Clarke, Evidence, 538 pRape, etc., 433.
Rex V. Clay, Larceny, 288.
Rex V. Clayburn, Burglary, 71.
Rex V. Clement, ProcSiure and Practice, 519.
Rex V. Clewes, Evidence, 539, 548 ; Murder, etc., 380.
Rex V. Clinch, Forgery, 202.
Rex V. Coates, Mui-der, etc., 356.
Rex V. Cochrane (Lord), New Trial, 584.
Rex V. Cockshaw, Crim. Inf., 16.
Rex V. Codrington, False Pretences, 154.
Rex V. Cohen, New Trial, 582 ; Perjury, 396.
Rex V. Cole, Evidence, 576 ; Sodomy, etc., 456.
Rex V. Coleman, False Pretences, 146.
Rex V. Collett, Bui^lary, 75.
Rex V. Colley, Evidence, 570.
Rex V. Collicott, Forgery, 198.
Rex V. Collier, Forgery, 195.
Rex V. Collins, Treason, 468, 470, 471.
Rex V. Collison, Murder, etc., 340.
Rex V. Comer, Burglary, 81.
Rex V. Compton, Burglary, 79, 81 ; Crim. Inf., 11.
Rex V. Conner, Mui-der, etc., 338.
Rex V. Constable, Judgment, etc., 590.
Rex V. Coogan, Forgery, 212.
Rex V. Cook, Larceny, 281.
Rex V. Cooke, Evidence, 568 ; Judgment, et<5., 585 ; Pequry, 414 ;
Procedure and Practice, 509.
Rex V. Cooper, Arson, 37 ; Evidence, 545 ; Principals, etc., 27.
Rex V. Corden, Larceny, 286.
Rex V. Cornwall, Concealments of Births, 103.
Rex V. Coslet, Larceny, 237.
Rex V. Coveney, Evidence, 556.
Rex V. Cowell, Larceny, 302.
TABLE OF CASES, DIGESTED. liii
Rex V. County, Larceny, 260.
Rex V. Court, JSvidence, 545.
Rex V. Cox, Murder, etc., 358 ; Perjury, 406 ; Riots, 441.
Rex V. Coxon, Procedure and Practice, 518.
Rex V. Cozens, Crim. Inl', 7.
Rex V. Cozing, Rape, etc., 431 ; Sodomy, etc., 456.
Rex V. Cramp, Personation, 424.
Rex V. Craven, Larceny, 300.
Rex V. Crespigny, Peijury, 396.
Rex V. Crick, Poaching, 390.
Rex V. Crisp, Particular Offences, 622.
Rex V. Crocker, Forger^, 174, 222.
Rex V. Crockett, Murder, etc., 378.
Rex V. Crookes, Procedure and Practice, 476.
Rex V. Crossley, False Pretences, 159; Perjury, 398.
Rex V. Crowther, Forgery, 188, 220.
Rex V. Cnmip, Larceny, 280.
Rex V. Crunden, Obscenity, etc., 393.
Rex V. Crutchley, Malicious Injury, 313 ; Persons capable of Crimes, 25.
Rex V. Culkin, Murder, etc., 372. "
Rex V. Cullen, Forgery, 203.
Rex V. Cundick, Sepulture, 455.
Rex V. Curling, Larceny, 269;
Rex V. Cunan, Murder, etc., 332.
Rex V. Cuirvan, Murder, etc., 340.
Rex V. Dade, Forgery, 215.
Rex V. Dale, False Pretences, 146.
Rex V. Daman, Larceny, 286.
Rex V. Dann, Larceny, 297.
Rex V. Dannelly, Burglary, 76.
Rex V. Davis, Burglary, 71, 72 ; Concealment of Births, 104 ; Counsel,
530 ; Evidence, 545 ; Forgery, 214 ; Larceny, 279 ; Murder, etc.,
340, 364 ; Poaching, 387 ; Principals, etc., 26 ; Procedure and
Practice, 486, 488, 497.
Rex V. Dawber, Evidence, 563.
Rex V. Dawson, Forgery, 177, 216 ; Rape, etc., 437.
Rex V. Deakin, Larceny, 289.
Rex V. De Berenger, Conspiracy, 106, 109.
Rex V. Deeley, Bigamy, 64.
Rex V. Deering, Evidence, 574.
Rex V. Delam^tte, Treason, 468.
Rex V. Delaval, Conspiracy, 107.
Rex V. Delondo, Malicious Injury, 316.
Rex V. Dennison, Crim. Inf., 2.
Rex V. Densley, Larceny, 306.
Rex V. Depardo, Murder, etc., 347.
Rex V. Derrington, Evidence, 538.
Rex V. Despard, Judgment, etc., 589 ; Juries, etc., 524.
Rex V. De v eaux. Larceny, 308.
Rex V. Dewhnrst, Costs, 616.
Rex V. Dewsnap, Costs, 616.
Rex V. De Yonge, Coining, 87.
Rex V. Dickinson, Larceny, 237 ; Juries, etc., 521.
Rex V. Dicks, Persons capable of Crimes, 22.
liv TABLE OF CASES, DIGESTED.
^ Rex V. Dillon, Forcible Entry, 172.
* Rex V. Dingier, Murder, etc., 378.
Rex V. Dixon, Adulteration of Food, 36 ; Larceny, 268 ; Murder, etc.,
329 ; Perjury, 423.
Rex V. Dobbs, Burglary, 79.
Rex V. Dodd, Evidence, 563.
Rex V. Doherty, Articles of the Peace, 607.
Rex V. Dolby, Juries, etc., 626.
Rex V. Donnally, Robbery, 447.
Rex V. Donnelly, Forgery, 220.
Rex V. Donnevan, Arson, 39.
Rex V. Donnison, Crim. Inf., 4.
Rex V. Doran, Arson, 45.; Procedure and Practice, 495.
Rex V. Douglas, Concealment of Births, 104 ; False Pretences, 165.
Rex V. Dowlin, Perjury, 404, 412.
Rex V. Downey, Apprehension and Arrest, 606.
Rex V. Dowsell, Poaching, 385.
Rex V. Doyle, Murder, etc., 382.
Rex V. Draper, Crim. Inf , 15.
Rex V. Drummond, Murder, etc., 378.
Rex V. Duffin, Mui^er, etc., 364 ; Sepulture, 455 ; Sodomy, etc., 456.
Rex V. Dunkley, Thi-eatening Letters, 465.
Rex V. Dunn, Evidence, 542; Forgery, 174, 184; Larceny, 306; Per-
jury, 406 ; Procedure and Practice, 516.
Rex V. Dunnage, False Pretences, 154.
Rex V. Dunnett, Forgery, 218.
Rex V. Dunston, Perjury, 396.
Rev V. Dyer, Principals, etc., 25.
Rex V. Dyson, Murder, etc., 333, 363.
Rex V. Ealing, Murder, etc., 347.
Rex V. Eastall, Larceny, 292.
Rex V. Eccles, Conspiracy, 108.
Rex V. Eden, Crim. Inf., 13.
Rex V. Edmeads, Murder, etc., 331.
Rex V. Edmonds, Juries, etc., 524, 526.
Rex V. Edmunds, Evidence, 548.
Rex V. Edward, Robbery, 448.
Rex V. Edwards, Bigamy, 59 ; Juries, etc., 523 ; Larceny, 266, 286,300;
Perjury, 395 ; liobbery, 448, 451.
Rex V. Egerton, Robbery, 448.
Rex V. Egffinton, Burglary, 71 ; Larceny, 247. #
Rex V. Eldershaw, Rape, etc., 430.
Rex V. Eldiidge, Evidence, 535.
Rex V. Eliot, Forgery, 177.
Rex V. Elliott, Forgery, 174.
Rex V. Ellicombe, Arson, 45.
Rex V. Ellis, Evidence, 544, 576 ; Judgment, etc., 590; Procedure and
Practice, 495, 498 ; Punishment, 599.
Rex v. Ellison, Arson, 40.
Rex V. Ellor, Forgery, 204.
Rex V. Elmstead, liobbery, 447.
Rex V. Else, Coining, 97.
Rex V. Elsworth, Forgery, 217.
Rex V. Emden, Procedure and Practice, 512.
TABLE OF CASES, DIGESTED. Iv
Rex y. England, Evidence, 552, 566.
Rex V. Enoch, Evidence, 542 ; Murder, etc., 829.
Rex V. Esop, Persons capable of Crimes, 23. •
Rex V. Esser, Threatening Letters, 465.
Rex V. Etherington, Larceny, 266.
Rex V. Evans, Forgery, 203 ; Murder, etc., 327 ; Treason, 468.
Rex V. Eve, Crim. Inf., 4.
Rex V. Fagent, Murder, etc., 376, 379.
Rex V. Fagg, EWdence, 551.
Rex T. FaUows, Evidence, 555 ; Robbery, 448.
Rex V. Farrell, Larceny, 237.
Rex V. Farrington, Arson, 45.
Rex V. Fauntleroy, Forgery, 200.
Rex V. Fawcett, Forgerv, 195.
Rex V. Feamley, Procedure and Practice, 486, 514.
Rex V. Ferguson, Conspiracy, 109 ; Murder, etc., 345.
Rex V. Fidler, Malicious Injujry, 313.
Rex V. Field, Forgery, 198.
Rex V. Fielder, New Trial, 584.
Rex V. Fieldhouse, Procedure and Practice, 477 ; Riots, 442.
Rex V. Fielding, Crim, Lif., 2, 8, 9.
Rex V. Filewood, Costs, 620.
Rex V. Finacane, Assault and Battery, 53 ; Poaching, 390.
Rex V. Finch, Larceny, 279.
Rex V. Finmore, Costs, 620.
Rex V. Fitzgerald, Forgery, 213.
Rex V. Fitzpatrick, Punishment, 599.
Rex V. Flanna^n, Burglary, 71.
Rex V. Fleet, Crim. Inf., 3.
Rex V. Flemming, Rape, etc., 435.
Rex V. Fletcher, Evidence, 579 ; Larceny, 245 ; Murder, etc., 383.
Rex V. Flint, False Pretences, 160.
Rex V. Flower, Bail, 612.
Rex V. Folkes, Rape, etc., 432.
Rex V. Forbes, Forgery, 186, 226.
Rex V. Ford, Apprehension and Arrest, 603 ; Murder, etc., 332 ; New
Trial, 584 ; Procedure and Practice, 494.
Rex V. Forsgate, Larceny, 292.
Rex V. Forsyth, Procedure and Practice, 494.
Rex V.Foster, Coining, 92; Evidence, 548; Murder, etc., 381; Per-
jury, 402.
Rex V. Fowler, Judgment, etc., 585.
Rex V. Frances, Crim. Inf., 5.
Rex V. Francis, Forgery, 185.
Rex V. Franks, Coinmg, 96.
Rex V. Fraser, Bigamy, 64 ; Murder, etc., 363.
Rex V. Fray, Murder, etc, 338.
Rex V. Freeman, Embezzlement, 125.
Rex V. Freeth, False Pretences, 160.
Rex V. French, Burglary, 74.
Rex V. Friar, Crim. Inf., 12.
Rex V. Friend, Murder, etc., 367, 371.
Rex V. Froude, Forgery, 194.
Rex V. Fry, Larceny, 299 ; Poaching, 387.
Ivi TABLE OF CASES, DIGESTED.
Rex V. Fuller, Burglary, 72 ; Coining, 94 ; Evidence, 655 ; Procedure
and Practice, 495 ; Robbery, 447.
Rex V. Fumival, Burglary, 81.
Rex V. Fursey, Riots, 439.
Rex V. Gaby, Larceny, 293.
Rex V. Gade, Forgery, 200.
Rex V. Gahagan, Treason, 470.
Rex V. Gainer, Poaching, 385.
Rex V. Gardener, Murder, etc., 368.
Rex V. Gardner, Robbeiy, 447.
Rex V. G^rratt, Poaching, 393.
Rex V. Garside, Murder, etc., 383.
Rex V. Gascoigne, Counsel, 530 ; Robbery, 448.
Rex V. Gay, Murder, etc., 380.
Rex V. Gibbons, Burelary, 70 ; Evidence, 542.
Rex V. Gibson, Burglary, 70; Forgery, 196, 212 ; Procedure and Prac-
tice, 509, 515.
Rex V. Gilbert, Larceny, 240.
Rex V. Gilbie, Costs, 616.
Rex V. Gilchrist, Forgery, 216,
Rex V. Giles, Forgery, 224.
Rex V. Gilham, Evidence, 543 ; Procedure and Practice, 519.
Rex V. Gilkes, Procedure and Practice, 474.
Rex V. Gill, Conspiracy, 109.
Rex V. Gillbrass, Larceny, 281.
Rex V. Gilles, Sepulture, 455.
Rex V. Gillow, Murder, etc., 364.
Rex V. Gird wood. Threatening Letters, 458, 465, 466.
Rex V. Glandfield, Arson, 44.
Rex V. Glenn, Procedure aiid Practice, 476.
Rex V. Glover, Poachbg, 393.
Rex V. Gnosil, Robbery, 447.
Rex V. Gogerly, Burglary, 79.
Rex V. Goldstein, Forgery, 183, 217.
Reg V. Goodfellow, Poaching, 384.
Rex V. Goodhall, False Pretences, 146.
Rex V. Gordon, Abduction of Women, etc., 35 ; Bigamy, 64 ; Murder,
etc., 332, 380 ; Persons capable of Crimes, 24 ; Principals, etc.,
30 ; Treason, 468.
Rex V. Gotley, Particular Offences, 622.
Rex V. Gough, Procedure and Practice, 496.
Rex V. Gourlay, Persons capable of Crimes, 21.
Rex V. Gowan, Arson, 37.
Rex V. Grtidy, Evidence, 556.
Rex V. Graham, Forgery, 194 ; Procedure and Practice, 492.
Rex V. Grainger, Procedure and Practice, 509.
Rex V. Gray, Conspiracy, 105 ; Rape, etc., 432.
Rex V. Green, Crim. Inf , 12 ; Evidence, 536, 545 ; Murder, etc., 342.
Rex V. Greenacre, Murder, etc., 327 ; Principals, etc., 28.
Rex V. Grice, Poaching, 386.
Rex V. Griffen, Evidence, 537.
Rex V. Grimes, Larceny, 300.
Rex V. Groombridge, Persons capable of Crimes, 24.
Rex V. Grosvenor, Crim. Lif., 12.
TABLE OF CASES, DIGESTED. Ivii
Rex V. Grounsell, Murder, etc,, 872.
Rex v. Grout, Murder, etc., 341.
Rex T. Grove, Embezzlement, 137, 138.
Rex V. Haines, Buiglary, 68.
Rex Y. Hailey, Perjury, 398.
Rex V. Hake, Forcible Entry, 173.
Rex V. Hall, Burglary, 68 ; Embezzlement, 122, 124, 130 ; Murder, etc.,
383 ; Robbery, 448.
Rex V. Halloway, Larceny, 301.
Rex T. Halton, Pixxjedure and Practice, 504.
Rex V, Hamilton, Conspiracy, 113.
Rex V. Hammon, Embezzlement, 122; False Pretences, 163; Larceny,
237.
Rex V. Hammond, Conspiracy, 113 ; Threatening Letters, 465.
Rex V. Hampstead, Procedure and Practice, 496.
Rex V. Hampton, Forgery, 187.
Rex V. Hancock, Burglary, 70.
Rex V. Handley, Procedure and Practice, 497.
Rex V. Hankey, Crim. Inf., 13.
Rex V. Hanks, Perjury, 403.
Rax V. Haiui, Crim. Inf., 8 ; Judgment, etc., 585.
Rex V. Harding, Larceny, 240.
Rex V. Hardy, Treason, 470.
Rex ▼. Hargrave, Evidence, 563.
Rex V. Harley, Murder, etc., 351.
Rex V. Harmwood, Rape, etc., 432.
Rex V. Harrie, Threatening Letters, 466.
Rex V. Harris, Arson, 37 ;• Burglary, 72 ; Coining, 85.
Rex V. Harries, Crim. Inf., 9 ; Evidence, 546 ; Forgery, 194, 217, 224,
225, 228 ; Murder, etc., 355, 360 ; Perjury, 406 ; Procedure and
Practice, 486, 494 ; Sanitary Laws, 452.
Rex V. Harrison, Crim. Inf , 14 ; Forgery, 209 ; Larceny, 252.
Rex V. Hart, Forgery, 184, 226 ; Larceny, 276 ; Procedure and Practice,
488.
Rex V. Hartel, Counsel, 530.
Rex V. Hartley, Embezzlement, 1 24.
Rex V. Harvey, Crim. Inf., 6 ; Forgery, 209 ; Evidence, 535 ; Larceny,
280.
Rex V. Hassell, Costs, 620.
Rex V. Hastings, Evidence, 563 ; Malicious Injury, 316.
Rex V. Haswell, Crim. Inf, 4 ; Escape, Rescue, etc., 600, 601.
Rex V. Hangbton, Arson, 40; Malicious Injury, 322.
Rex V. Hawdon, Costs, 616.
Rex V. Hawkeswood, Forgery, 183, 226.
Rex V. Hawkins, Burglary, 75 ; Robbery, 448.
Rex V. Hawortb, Forgery, 226.
Rex V. Haydon, Judgment, etc., 585 ; Larceny, 254.
Rex V. Haynes, Arson, 36 ; Procedure and Practice, 477.
Rex V. Hayward, Murder, etc., 326, 376.
Rex V. Haywood, Malicious Injury, 322.
Rex V. Healey, Procedure and Practice, 488,
Rex V. Headge, Embezzlement, 124.
Rex V. Heame, Evidence, 544.
Rex V. Heath, Coining, 94,
Ivui TABLE OP CASES, DIGESTED,
Rex V. Hedges, Coining, 86 ; Larceny, 279.
Rex V. Helsham, Murder, etc., 347.
Rex V. Heming, Crim. Inf., 10 ; Threatening Letters, 459 ; Robbery,
448.
Rex V. Hemp, Peijury, 412.
Rex V. Hems, Murder, etc., 333.
Rex V. Hempstead, Procedure and Practice, 496.
Rex V. Hench, False Pretences, 168.
Rex V. Hensey, Evidence, 579 ; Treason, 468.
Rex V. Hepper, Procedure and Practice, 477.
Rex V. Herbert, Crim. Inf., 11.
Rex V. Hevey, Evidence, 579 ; Forgery, 187, 223.
Rex V. Heydon, Costs, 615 ; Crim. Inf., 16.
Rex V. Hill, False Pretences, 145, 167.
Rex V. Hickman, Larceny, 279 ; Murder, etc., 381 ; Robbery, 447 ; Threat-
ening Letters, 462.
Rex V. Higgins, Evidence, 549.
Rex V. Higley, Concealment of Births, 103.
Rex V. HiU, Juries, etc., 526 ; Malicious Injury, 312 ; Rape, etc., 431.
Rex V. Hind, Bigamy, 60.
Rex V. Hindmarsh, Murder, etc., 380.
Rex V. Hoare, Forcible Entry, 173.
Rex V. Hobson, Embezzlement, 137.
Rex V. Hodges, Larceny, 272, 273.
Rex V. Hodgkiss, Evidence, 574.
Rex V. Hodgson, Embezzlement, 122, 138 ; Murder, etc., 326 ; Rape, ete.,
434.
Rex V. Holden, Forgery, 222, 224 ; Procedure and Practice, 486.
Rex V. Holland, Crim. Inf., 8.
Rex V. Hollingberry, Conspiracy, 106, 109 ; New Trial, 582, 584.
Rex V. Hollingshead, Evidence, 547.
Rex V. Hollis, Procedure and Practice, 474.
Rex V. HoUoway, Articles of the Peace, 607.
Rex V. Holt, Articles of the Peace, 609 ; Murder, etc., 356, 357 ; New
Trial, 583.
Rex V. Home, Crim. Inf., 6.
Rex V. Hood, Evidence, 567 ; Murder, etc., 340.
Rex V. Hope, Forgery, 198, 210, 218.
Rex V. Hopes, Evidence, 547.
Rex V. Horner, Larceny, 240.
Rex V. Home Took, Treason, 470.
Rex V. Horwell, Forgery, 216.
Rex V. Hough, Forgery, 227. •
Rex V. Howard, Perjury, 412.
Rex V. Howarth, False Pretences, 164.
Rex V. Howe, Malicious Injury, 318 ; Tlireatening Letters, 466.
Rex V. Howell, Larceny, 244.
Rex V. Howes, Error and Appeal, 593 ; Evidence, 545.
Rex V. Hewlett, Murder, etc., 360. *
Rex V. Howorth, Murder, etc., 359.
Rex V. Hubson, Murder, etc., 326.
Rex V. Hucks, Murder, etc., 376.
Rex V. Hudson, Larceny, 300.
Rex V. Huet, Forgery, 227.
TABLE OP CASES, DIGESTED. lix
Rex V.Hughes, Burglary, 67; Embezzlement, 124; Malicious Injury,
322 ; Murder, etc., 357 ; Persons capable of Crimes, 22 ; Rape,
eto., 431 ; Riots, 441 ; Verdict, 581.
Rex V. Hugill, Larceny, 268.
Rex V. Hungerford, Burglary, 81.
RexT. Himt, Apprehension and Arrest, 603; Conspiracy, 114; Crim.
Inf., 12; Juries, etc., 526 ; Murder, etc., 358; New Tiial, 583;
Procedure and Practice, 486 ; Riots, 439.
Rex V. Hunter, Forgery, 209, 225, 226.
Rex T. Hutchins, Malicious Injury, 313.
Rei V. Hutchinson, Larceny, 292 ; Murder, etc., 378.
Rex V. Ingleton, Costs, 61 6.
Rex V. Ipswich, Crim. Inf., 14.
Rex V. Isaac, Arson, 37.
Rex V. Isaacs, Coining, 85.
Rex V. Isherwood, Cran. Inf., 12.
Rex T. Jackson, Crim. Inf., 7 ; False Pretences, 159 ; Larceny, 241 ;
Rape, etc., 429 ; Robbery, 447.
Rex v. Jacobs, Bigamy, 61 ; Sodomy, etc., 456.
Rex V. Jagger, Evidence, 567.
Rex V. James, Forgery, 221, 223 ; Riots, 442.
Rex V. Jarvis, Burglary, 74 ; Murder, etc., 856 ; Principals, etc., 28.
Rex V. Jellias, Treason, 470.
Rex V. Jenldns, Burglary, 75 ; Evidence, 535.
Rex V. Jenks, Burglary, 80.
Rex T. Jennings, Rape, etc., 431.
Rex V. Jenson, Embezzlement, 130.
Rex V. Jepson, Threatening Letters, 463.
Rex V. Jervis, Larceny, 302.
Rex V. Jobling, Burglary, 75.
Rex V. John, Evidence, 548 ; Larceny, 271 ; Murder, etc., 376.
Rex V. Johnson, Burglary, 67 ; Costs, 615 ; Embezzlement, 136 ; Proced-
ure and Practice, 515.
Rex V. Johnston, Procedure and Practice, 476.
Rex V. Joliffe, Crim. Inf., 12.
Rex V. Jollie, Crim. Inf., 13.
liex V. Jolliffe, Crim. Inf , 2, 14.
Rex V. Jones, Bail, 611 ; Costs, 615 ; Crim. Inf., 8 ; Embezzlement, 138 ;
Evidence, 538, 547, 549, 563, 569, 579 ; Forgery, 174, 202, 209,
216 ; Larceny, 264, 277 ; Perjury, 411 ; Proi^ure and Pi-actice,
495, 508, 518 ; Robbery, 447.
Rex V. Joidan, Burglary, 69, 79.
Rex V. Joyce, Coining, 86.
Rex V. Jadd, Arson, 42.
Rex V. Kelly, Coining, 96 ; Murder, etc., 373 ; Princrpals, etc., 25.
Rex V. Kelsey, Costs, 614.
Rex V. Kendxick, Poaching, 384.
Rex V. Eennet, Riots, 440.
Rex V, Kenworthv, Riil, 612 ; Punishment, 599.
Rex V. Kemon, Larceny, 302.
Rex V. Ressal, Murder, etc., 339.
Rex V. Killminster, Poaching, 389.
Rev V. Kinder, Forgery, 174.
Ix TABLE OF CASES, DIGESTED.
Rex V. King, Forgery, 187 ; Principals, etc., 27 ; Procedure and Prac-
tice, 486.
Rex V. Kingston, Evidence, 540 ; Procedure and Practice, 514.
Rex V. Kinnear, Juries, etc., 521 ; New Trial, 582,
Rex V. Kinnersley, Crim. Inf., 2.
Rex V. Kinsey, Procedure and Practice, 518.
Rex V. Kirkwood, Forgery, 215, 223.
Rex V. Kir wan, Duelling, 118.
Rex V. Kitchen, Murder, etc. 356.
Rex V. Knewland, Robbery, 446.
Rex V. Knight, Burglary, 76 ; Persons capable of Crimes, 22.
Rex V. K^nill, Perjury, 416.
Rex V. Kroehl, Procedure and Practice, 506.
Rex V. Lad, Murder, etc., 372.
Rex V. Lafone, Conspiracy, 113.
Rex V. Lamb, Juries, etc., 526.
Rex V. Lambe, Evidence, 535 ; Juries, etc., 526.
Rex V. Lancashire, Justices, Crim. Inf., 13.
Rex V. Land, Lord, Crim. Lif., 12.
Rex V. Lapier, Robbery, 447.
Rex V. Lara, False Pretences, 158, 164.
Rex V. Larrieu, Crim. Inf., 10.
Rex V. Laugher, Persons capable orCrimes, 22.
Rex V. Lav} , Coining, 85.
Rex V. Lawrence, Burglary, 69.
Rex V. Lea, Procedure and Practice, 513.
Rex V. Leadbitter, Larceny, 309.
Rex V. Lee, Evidence, 563 ; Peijury, 416 ; Principals, etc., 28.
Rex V. Leech, Embezzlement, 123.
Rev V. Leefe, Perjury, 405, 420.
Rex V. Leigh, Larceny, 237, 300.
Rex V. Lennard, Coining, 93.
Rex V. Levy, Conspiracy, 115 ; Larceny, 234.
Rex V. Lewis, Burglary, 67 ; Evidence, 545 ; Forgery, 200 ; Malicious In-
jury, 319 ; Murder, etc., 351.
Rex V. Lithgo, Burglary, 71.
Rex V. Lloyd, Evidence, 537 ; Judgment, etc., 588 ; Murder, etc., 378 ;
Rape, etc., 481, 435 ; Robbery, 449 ; Threatening Letters, 465.
Rex V. Locker, Conspiracy, 113.
Rex V. Lockett, Forgery, 188 ; Poaching, 885.
Rex V. Lohgden, Murder, etc., 328.
Rex V. Longstreeth, Larceny, 240.
Rex V. Lord George Gordon, Treason, 468, 469.
Rex V. Lovel, Munier, etc., 356.
Rex V. Lovelass, Perjury, 422.
Rex V. Lovell, Embezzlement, 133 ; Forgery, 216.
Rex v. Lynch, Murder, etc., 338.
Rex V. Lynn, Procedure and Practice, 506.
Rex V. Lyon, Forgery, 191, 209.
Rex V. Lyons, Burglary, 72.
Rex V. M'Carther, Perjury, 405, 412.
Rex V. Macarty, False Pretences, 162.
Rex V. Macaulay, Robbery, 446.
Rex V. Macdaniel, Murder, etc., 827.
TABLE OF CASES, DIGESTED. Ixi
Rex v. MaodoQald, Procedure and Practice, 476.
Rex V. Macintosh, Forgery, 176, 205.
Rex V. M'Growther, Persons capable of Crimes, 24 ; Treason, 468.
Rex V. Mackerel, Malicious Injury, 312.
Rex T. M'3Iakin, Princij)al8, etc., 25.
Rex V. M'Namee, Larceny, 244.
Rex v. Madan, Punishment, 599.
Rex V. Madox, Larceny, 245.
Rex V. 3Ia^le, Malicious Injury, 322.
Rex V. Major, Threatening Lettere, 462.
Rex V. Mallinson, Larceny, 286.
Rex V. Manners, Coining, 95.
Rex y. 3Iarch, Arson, 44.
Rex V. Margetts, Burglary, 75.
Rex V. Marks, Perjury, 423.
Rex V. Marsden, Counsel, 533.
Rex V. Marsh, False Pretences, 162; Juries, etc., 520; Procedure and
Practice, 487.
Rex V. Marshall, Crim. Inf., 9 ; Forgery, 185 ; Procedure and Practice,
488.
Rex V. jMartin, Bui^lary, 70 ; Escape, Rescue, etc., 601 ; Forgery, 209,
218, 221 ; Larceny, 289; Murder, etc., 335, 374; Personation,
424 ; Rape, etc., 433.
Rex V. Mason, Embezzlement, 141 ; False Pretences, 165 ; Murder, etc.,
327 ; Robbery, 447.
Rex V. Ma^in, Murder, etc., 341.
Rex V. ^lathews. Procedure and Practice, 495.
Rex V. Mattos, Murder, etc., 848.
Rex V. Mawbey, Conspiracy, 109 ; Crim. Inf., 15 ; New Trial, 581, 583.
Rex V. May, Forgery, 216 ; Procedure and Practice, 488.
Rex V. Mayhew, Peijury, 417.
Rex v.-3Iaynard, Burglary, 75.
Rex V. Mazagora, Forgery, 221.
Rex V. Mead, Embezzlement, 137; Larceny, 276 ; Murder, etc., 375, 378;
Perjury, 413.
Rex V. Meakin, Persons capable of Crimes, 23.
Rex V. Meilheim, Larceny, 241.
Rex V. Mercier, Procedure and Practice, 504.
Rex V. Meredith, Murder, etc., 370.
Rex V. Messingham, Larceny, 297.
Rex V. Metcalf, Larceny, 254.
Rex V. Middlesex, Justices, Procedure and Practice, 480.
Rex V. Miles, Crim. Inf., 4.
Rex V. Millar, Procedure and Practice, 485.
Rex V. Millard, Forgery, 227.
Rex V. Miller, Punishment, 599.
Rex V. Mills, Evidence, 541.
Rex V. Milton, Assault and Battery, 51 ; Search Warrants, 606.
Rex V. Mitchell, False Pretences, 152 ; Forgery, 202, 204.
Rex V. Mitten, Assault and Battery, 51 ; Search Warrants, 606.
Rex V. Moate, Costs, 620.
Rex V. Moffatt, Forgery, 183.
Rex V. Mogg, Malicious Injury, 323.
Ixii TABLE OF CASES, DIGESTED.
Rex V. Moore, Coining, 93 ; Evidence, 576 ; False Pretences, 162 ; Per-
jury, 423; Robbery, 447.
Rex V, Morfit, Larceny, 251.
Rex V. Morgan, Crim. Lif., 1, 14; Evidence, 569.
Rex V. Morris, Forgery, 214 ; Perjury, 411 ; Persons capable of Crimea,
22 ; Procedure and Practice, 487.
Rex V. Morrison, Murder, etc., 382.
Rex V. Morton, Forgery, 183, 226.
Rex V. Mosey, Evidence, 537.
Rex v. Mosley, Murder, etc., 372, 375.
Rex V. 3fott, Malicious Injury, 322.
Rex V. Mountford, Murder, etc., 356.
Rex v. Mucklow, Larceny, 278.
Rex y. Mulreaty, Sodomy, etc., 456.
Rex V. Munday, Larceny, 279.
Rex V. Munton, Perjury, 412.
Rex V. Murphy, Murder, etc., 339.
Rex V. Murray, Embezzlement, 122, 137.
Rex V. Murrow, Murder, etc., 361.
Rex V. Mytton, Procedure and Practice, 474.
Rex V. Napper, Procedure and Practice, 490.
Rex V. Nash, Arson, 37 ; Poaching, 386,
Rex v. Neal, Evidence, 564.
Rex y. Nettleton, Embezzlement, 125.
Rex y. Newill, Arson, 44, 45.
Rex y. Nibbs, Larceny, 300.
Rex y. Nichol, Assault and Battery, 47.
Rex y. Nicholl, Perjury, 408.
Rex y. NichoUs, Conspiracy, 109.
Rex y. Nicholson, Larceny, 237 ; Murder, etc., 372.
Rex y. Nixon, Burglary, 73.
Rex y. Noakes, Evidence, 563.
Rex y. Norris, Burglary, 70 ; Conspiracy, 107.
Rex y. North, Arson, 44.
Rex y. Norton, Procedure and Practice, 491.
Rex y. Nottingham, Costs, 619.
Rex y. Nottingham Journal, Crim. Inf., 13.
Rex y. Oakley, Forcible Entry, 171.
Rex y. O'Donnell, Procedure and Practice, 518.
Rex y, Offord, Persons capable of Crimes, 17.
Rex y. Ogden, Forgery, 199.
Rex y. Ogilvie, Larceny, 299.
Rex y. O'Gorman Mahon, Judgment, etc., 590.
Rex y. Oldiield, Procedure and Practice, 480,
Rex y. Oliver, Larceny, 240.
Rex y. Orrell, Counsel, 530.
Rej V. Osborn, Procedure and Practice, 473, 517.
Rex y. Osborne, Costs, 620.
Rex y. Osmer, Assault and Battery, 53.
Rex y. Owen, Larceny, 265 ; Persons capable of Crimes, 24 ; Poaching,
390 ; Principals, etc., 25.
Rex v. Owens, Malicious Injury, 322.
Rex y. Oxford, Coining, 92.
Rex v. Paddle, Threatening Letters, 466.
TABLE OP CASES, DIGESTED. Ixiii
Rex V. Paine, Burglary, 67 ; Costs, 614.
Rex V. Palmer, Combg, 86 ; Forgery, 177, 224 ; Larceny, 267 ; Poach-
ing, 387.
Rex V. Parfait, Robbery, 451.
Rex V. Parker, Burglary, 70; Coining, 94 ; Larceny, 279, 289.
Rex V. Parkes, Forgery, 174 ; Larceny, 239.
Rex V. Parkin, Larceny, 303 ; Verdict, 580.
Rex V. Parkins, Counsel, 532.
Rex V. Pamell, Articles of the Peace, 607.
Rex V. Parr, Personation, 423.
Rex T. Parratt, Evidence, 540.
Rex V. Parrott, Arson, 40.
Rex V. Parry, Juries, etc., 524 ; Procedure and Practice, 512.
Rex V. Partridge, Evidence, 538 ; Larceny, 250.
Rex V. Pasman, Costs, 616.
Rex V. Passey, Poaching, 386.
Rex V. Patch, False Pretences, 162.
Rex V. Pateman, Forgery, 183.
Rex V. Patience, Murder, etc., 341 .
Rex V. Patrick, Burglary, 80; Malicious Lijury, 318 ; Persons capable
of Crimes, 23 ; Procedure and Practice, 492.
Rex V. Patty, Malicious Lijury, 322.
Rex V. Paul, Procedure and Practice, 516.
Rex V. Payne, Murder, etc., 361 ; Poaching, 388.
Rex V. Peace, Assault and Battery, 54.
Rex V. Peach, Crim. Inf., 13.
Rex V. Peacock, Forgery, 185.
Rex V. Pear, Larceny, 280.
Rex V. Pearce, Larceny, 261.
Rex V. Pearson, Evidence, 556 ; Larceny, 262.
Rex V. Peal, Robbery, 446.
Rex V. Pedley, Perjury, 395.
Rex V. Pelfryman, Robbery, 449.
Rex V. Penpraze, Procedure and Practice, 486.
Rex V. Pjnson, Bigamy, 60.
Rex V. Pepys, Perjury, 396.
Rex V. Perkes, Burglary, 67.
Rex V. Perkins, Larceny, 303 ; Prize Fights, 425.
Rex V. Perry, Abduction of Women, etc., 35.
Rex V. Phillips, Coining, 92; Duelling, 118; Larceny, 280; Murder,
etc., 354 ; Procedure and Practice, 488.
Rex V. Philip, Malicious Injury, 316.
Rex V. Phipoe, Larceny, 276.
Rex V. Pickford, Threatening Letters, 458.
Rex V. Pike, Larceny, 269 ; Murder, etc., 379.
Rex V. Piller, Procedure and Practice, 482.
Rex V. Pim, Forgery, 198 ; Procedure and Practice, 495.
Rex V. Pinkerton, Crim. Inf., 15.
Rex V. Rnney, Riots, 440.
Rex V. Pitman, Larceny, 280.
Rex V. Plant, Procedure and Practice, 513.
Rex V. Piatt, Procedure and Practice, 517.
Rex V. Plumer, Evidence, 578.
Rex V. Plymouth, (Mayor) Crim. Inf., 2.
Ixiv TABLE OF CASES, DIGESTED.
Rex V. Pollman, Conspiracy, 107.
Rex V. Post, Forgery, 177.
Rex V. Potts, Personation, 424.
Rex V. Poulton, Murder, etc., 329, 374.
Rex V. Powell, Costa, 613 ; Evidence, 569 ; Forgery, 218, 220 ; Rape,
etc., 432.
Rex V. Powles, Murder, etc., 352.
Rex V. Pratly. Larceny, 245.
Rex V. Pratt, Larceny, 240.
Rex V. Pressly, Evidence, 546.
Rex V. Price, Coining, 96; Perjury, 420; Persons capable of Crimes,
22 ; Poaching, 388 ; Riots, 443.
liex V. Prince, Embezzlement, 141.
Rex V. Pringle, Forgery, 200.
Rex V. Pritchard, Persons capable of Crimes, 21.
Rex V. Probert, Arson, 37.
Rex V. Proby, Crim. Inf., 12.
Rex V. Prosser, Burglary, 75.
Rex V. Prowes, Larceny, 270.
Rex V. Puckering, Larceny, 300.
Rex V. liadcliife. Counsel, 533 ; Juries, etc., 524.
Rex V. Randall, Forgery, 183.
Rex V. Rankin, Murder, etc., 338.
Rex V. Ratcliffe, Procedure and Practice, 504.
Rex V. Ravenscroft, Forgery, 204.
Rex V. Rawlins, Burglary, 79 ; Larceny, 288.
Rex V. Rawson, Costs, 615.
Rex y. Reader, Arson, 45.
Rex V. lieading. Evidence, 548 ; Forgery, 217.
Rex V. Reane, Robbery, 446.
Rex y. Reculist, Forgery, 183.
Rex y. Redfern, Procedure and Practice, 481.
Rex y. Redman, Procedure and Practice, 488.
Rex y. Reed, Evidence, 546 ; False Pretences, 158.
Rex v. Reekspear, Rape, etc., 431 ; Sodomy, etc., 456. •
Rex y. Rees, Burglary, 74 ; Evidence, 548 ; Larceny, 264.
Rex V. Reeves, Forgery, 223.
Rex y. Remnant, Larceny, 289.
Rex v. Reynell, New Trial, 582.
Rex y. Rhodes, Forgery, 213.
Rex y. Rice, Duelling, 118 ; Forgery, 218.
Rex y. Richards, Costs, 615; Evidence, 538; Forgery, 205; Larceny,
279 ; Perjury, 406; Procedure and Practice, 490.
Rex y. Richardson, Burglary, 73 ; Conspiracy, 109 ; Larceny, 295 ; Pro-
cedure and Practice, 496.
Rex y. Ricketts, Murder, etc., 363.
Rex y. Rickman, Arson, 44.
Rex v. Ridgelay, Coining, 93.
Rex y. Ridley, Murder, etc., 368, 369, 370 ; Poaching, 390.
Rex y. Righton, Costs, 615.
Rex y. Ring, Evidence, 568.
Rex y. Rispal, Conspiracy, 106.
Rex y. Rivers, Evidence, 547.
TABLE OF CASES, DIGESTED.
Ixv
Rex V. Roberts, Burglary, 67 ; Conspiracy, 1 13 ; Larceny, 290 ; Pro-
cedure and Practice, 504.
Rex V. Robey, Costs, 6-14.
Rex V. Robins, Robbery, 446.
Rex V. Robinson, Burglary, 68 ; Coining, 97 ; Conspiracy, 106 ; Crim.
Inf., 1, 14 ; Larceny, 261 ; Threatening Letters, 461, 466.
Rex V. Robsottj False Pretences, 1 62.
Rex V. Roche, Procedure and Practice, 512.
Rex V. Roderick, Misdemeanors, 325.
Rex V. Rodger8, Burglary, 74 ; Crim. Inf., 12 ; Procedure and Practice,
507.
Rex V. Rokeby, Murder, etc., 329.
Rex V. Rooney, Procedure and Practice, 518 ; Robbery, 450.
Rex V. Rosem^tein, Evidence, 580.
Rex T. Rosinski, As? alut and Battery, 47.
Rex V. Ros8, Malicious Injury, 318.
Rex V. Rosser, Juries, etc., 52 i.
Rex V. Rough, Larceny, 300.
Rex V. Rourke, Burglary. 73.
Rex V. Row, Evidence, 537.
Rex V. Rowland, Procedure and Practice, 506.
Rex V. Rowley, Forgery, 227, 228 ; Perjury, 412.
Rex V. Royce, Principals, etc., 28.
Rex V. Rudd, Evidence, 564.
Rex V. Rush worth. Forgery, 194, 220.
Rex V. Russell, Burglary, 67, 69 ; Murder, etc., 334.
Rex V. Russen, Rape, etc., 431.
Rex V. Rust, Burglary, 67.
Rex V. Ryan, Murder, etc., 361.
Rex V. Sadi, Principals, etc., 27.
Rex V. Sadler, Evidence, 568 ; Larceny, 286.
Rex V, Salisbury, Larceny, 262.
Rex V. Salmon, Arson, 44.
Rex V. Salter, Bail, 611 ; Conspiracy, 113.
Rex y. Satirist, Crim. Inf., 14.
Rex V. Saunders, Murder, etc., 367, 370.
Rex V. Savage, Juries, etc., 523 ; Larceny, 805.
Rex V. Sawyer, Murder, etc., 383, 347.
Rex V. Scaife, Murder, etc., 380.
Rex V. Scalbert, Juries, etc., 523.
Rex V. Scott, Larceny, 293 ; Riots, 440.
Rex V. Scudder, Murder, etc., 354.
Rex V. Scully, Murder, etc., 329.
Rex V. Seaford, (Jastices) Crim. Inf., 7.
Rex V. Searle, Persons capable of Ciimes, 18.
Rex V. Searing, Larceny, 288.
Rex T. Sears, Larceny, 245.
Rex V. Sefton, Burglary, 70.
Rex V. Self, Murder, etc., 369.
Rex V. Sellers, Murder, etc., 375.
Rex V. Sellis, Murder, etc., 329.
Rex V. Semple, Larceny, 237, 244.
Rex V. Senior, Murder, etc., 330.
Rex y. Serjeant, Evidence, 567.
Fish. Dig. — ^E.
Ixvi TABLE OF CASES, DIGESTED.
liex V. Seton, Error and Appeal, 590.
Rex V. Seward, Conspiracy, 106.
Ilex V. Sexton, Evidence, 538.
Rex V. Shadbolt, Murder, etc., 360.
Rex V. Sliakspeare, Procedure and Practice, 509.
Rex V. Sharpless, Larceny, 240.
Rex V. Sharpness, Crim. Inf., 15.
Rex V. Sharwin, Murder, etc., 372.
Rex V. Shaw, Bail, 61 1 ; Escape, Rescue, etc., 601 ; Evidence, 538 ;
Murder, etc., 327.
Rex V. Sheard, Murder, etc., 361.
Rex V. Sheen, Procedure and Practice, 511.
Rex V. Sheering, Costs, 615.
Rex V. Shepherd, Evidence, 542 ; Forgery, 204.
Rex V. Sheppard, Forgery, 222, 227 ; Juries, etc., 524.
Rex V. Sherrington, Larceny, 292.
Rex V. Shukard, Forgery, 224.
Rex V. Simmonds, Evidence, 570 ; Larceny', 281.
Rex v. Simons, Evidence, 544, 556 ; Robbery, 446.
Rex V. Simpson, Evidence, 535 ; Murder, etc., 345.
Rex V. Skerritt, Coining, 97.
Rex V. Slavey, Evidence, 573, 579.
Rex v. Slaughter, Evidence, 542.
Rex V. Smith, Arson, 45 ; Assault and Battery, 47 ; Burglary, 68, 69, 72;
Coining;, 97 ; Crim. Inf., 9 ; Embezzlement, 127 ; Evidence, 551,
567 ; liorger, 199 ; Larceny, 280, 281, 293, 298 ; Murder, etc., 326,
370, 374; Poaching, 386 ; Principals, etc., 30 ; Procedure and Prac-
tice, 477, 495, 496 ; Robbery, 449.
Rex V. Smithson, Crim. Init, 15.
Rex V. Smyth, Burglary, 74; Evidence, 571 ; Forcible Entry, 171.
Rex v. Snell, Concealment of Births, 103.
Rex V. Snow, Murder, etc., 338.
Rex V. Snowley, Embezzlement, 124.
Rex V. Soares, Forgery, 214; Principals, etc., 27.
Rex V. Somerton, Larcdny, 289.
Rex V. Southern, Poaching, 386.
Rex V. Southerton, Threatening Letters, 464.
Rex V. Sparrow, Crim. Inf., 15.
Rex V. Spears, Larceny, 289.
Rex V. Spencer, Bail, 612 ; Embezzlement, 124 ; Evidence, 542 ; False
Pretences, 160 ; Perjury, 411 ; Robbeiy, 446.
Rex V. Spiller, Murder, etc., 345, 381.
Rex V. Spilsbury, Evidence, 537, 546 ; Murder, etc., 376.
Rex V. Spragg, Judgment, etc., 590.
Rex V. Spriggins, Crim. Inf , 12.
Rex V. Squii-e, Embezzlement, 124 ; Murder, etc., 367.
Rex V. Stallion, Arson, 37, 40.
Rex V. Standley, Principals, etc., 25.
Rex V. Stannard, Counsel, 532.
Rex V. Stanton, Larceny, 309.
Rex V. St. Botolph, Bishopsgate, Crim. Inf., 12.
Rex V. Steel, Procedure and Practice, 504.
Rex V. Steptoe, Evidence, 549.
Rex V. SterUng, Forgery, 212.
TABLE OF CASES, DIGESTED. Ixvu
Rex V. Stevens, Judgment, etc., 585 ; Perjury, 406 ; Procedure and Prac-
tice, 488.
Rex V. Stevenson, Procedure and Practice, 508.
Rex V. Steward, Crira. Inf., 1.
Rex V. Stewart, Ck>ining, 94 ; Forgery, 215.
Rex V. St. John Delpike, Bio;amy, 60.
Rex V. St John Long, Murder, etc., 344, 345, 381.
Rex V. St. Alichael, Juries, etc., 521.
Rex V. Stock, Burglary, 70 ; larceny, 254.
Rex V. Stokes, E^ape, Rescue, etc., 601.
Rex V. Stone, Particular Offences, 622 ; Treason, 468, 470.
Rex V. Storr, Procedure and Practice, 473.
Rex V. Story, False Pretences, 146 ; Forgery, 186.
Rex V. Stoveld, Perjury, 414.
Rex V. Stratton, Grim. Inf., 2.
Rex T. Stroud, Larceny, 281.
Rex V. Suffolk, Justices, Verdict, 581.
Rex V. Sullens, Embezzlement, 123 ; Larceny, 256.
Rex V. Sullivan, Murder, etc., 338.
Rex V. Sulls, Larceny, 292.
Rex V. Sutcllffe, Punishment, 599.
Rex V. Sutton, Coining, 93 ; Grim. Inf., 6 ; Judgment, etc., 589 ; Juries,
etc., 524 ; New Trial, 582 ; Procedure and Practice, 515.
Rex V. Swallow, Burglary, 68.
Rex V. Swatkins, Arson, 45 ; Evidence, 548.
Rex V. Szudurskie, Forgery, 217.
Rex V. Tacey, Malicious Injury, 312.
Rex V. Taft, Forejerv, 185. '
Rex V. Taggart, Verdict, 580.
Rex V. Tannet, Personation, 424.
Rex V. Taplin, Robbery, 446.
Rex V. Tarrant, Grim. Inf., 1 1 ; Evidence, 547.
Rex V. Tattersall, Forgery, 227.
Rex V. Tavemer, Forgery, 227.
Rex V. Taylor, Arson, 40 ; Embezzlement, 137 ; Forgery, 184 ; Larceny,
265, 289; Malicious Injurv, 318; Murder, etc., 335, 338, 357;
Principals, etc., 30 ; Procedure and Practice, 512.
Rex V. Teague, Forgery, 184.
Rex V. Teal, Gosts, 621 ; New Trial, 584.
Rex V. Telicote, Evidence, 546.
Rex V, Testick, Forsjery, 219.
Rex V. Thomas, Evidence, 536, 537, 547, 556 ; Forgery, 204, 209, 223 ;
Larceny, 265, 302 ; Murder, etc., 333, 338 ; Persons caj)able of
Crimes, 23 ; Procedure and Practice, 495 ; Riots, 443 ; Robbery,
451.
Rex V. Thompkins, Gosts, 616.
Rex V. Thompson, Burglary, 72, 79 ; Evidence, 537 ; Forgery, 219 ;
larceny, 266, 303 ; Murder, etc., 340, 364, 373.
Rex V. Thorley, Embezzlement, 127.
Rex V. Thornton, Evidence, 535.
Rex v. Thorpe, Murder, etc., 339.
Rex V. Tibshelf, Bigamy, 60.
Rex V. Timmins, Murder, etc., 341, 381.
Rex V. Tmckler, Evidence, 565.
Ixviii TABLE OF CASES, DIGESTED.
Rex V. Tinkler, Murder, etc., 376.
Rex V. Tippet, Evidence, 535.
Rex V. Tipping, Juries, etc., 526.
Rex V. Todd, Larceny, 289.
Rex V. Tolfree, Larceny, 252.
Rex V. Tomlinson, Mui-derjCtc., 372 ; Poaching, 388.
Rex V. Tottenham, Arson, 43.
Rex V. Towle, Procedure and Practice, 495,
Rex V. Trapshaw, Burglary, 74.
Rex V. Treble, Forgery, 177.
Rex V. Treeve, Mumer, etc., 370.
Rex V. Tregarthen, Articles of the Peace, 607.
Rex V. Trehame, Procedure and Practice, 490.
Rex V. Tremaine, Procedure and Practice, 477 ; Costs, 620 ; Ne\<r Trial,
583.
Rex V. Tremearne, Costs, 620 ; Procedure and Practice, 477.
Rex V. Trowter, Murder, etc., 380.
Rex V. Trueman, Bigamy, 65.
Rex V. Trusty, Robbery, 451.
Rex V. Tubby, Evidence, 546.
Rex V. Tucker, Perjury, 412 ; Threatening Letters, 467.
Rex V. Tuffs, Evidence, 549.
Rex V. Tunnard, Larceny, 280.
Rex V. Turner, Burglary, 71 ; Costs, 616, 620 ; Larcany, 264 ; Principals,
etc., 31 ; Robbery, 449.
Rex V. Tye, Murder, etc., 372.
Rex V. Tyers, Embezzlement, 122.
• Rex V. Tyler, Evidence, 542.
Rex v. Upchurch, Evidence, 535.
Rex V. Van Butchell, Murder, etc., 344, 375.
Rex V. Vandercomb, Burglary, 79, 81 ; Procedure and Practice, 480,
511.
Rex V. Vane (Lord), Crim. Inf., 12.
Rex v. Vantandillo, Sanitary Laws, 452.
Rex V. Varley, Coining, 97.
Rex v. Vaughan, Crim. Inf., 12.
Rex V. Villeneuve, False Pretences, 146.
Rex v. Verelst, Perjury, 412.
Rex V. Voke, Murder, etc., 357.
Rex V. Vyse, Larceny, 276.
Rex V. Waddington, Bail, 612 ; Burglary, 79.
Rex V. Wade, Procedure and Practice, 474.
Rex V. Wagstaff, Threatening Letters, 459, 466.
Rex V. Waite, Articles of the Peace, 607 ; Crim. Inf., 8.
Rex V. Wakefield, Abduction of Women, etc., 35 ; Bigamy, 65.
Rex V. Wakeling, False Pretences, 146.
Rex V. Walford, Procedure and Practice, 473.
Rex V. Walker, False Pretences, 164; Larceny, 271 ; Murder, etc., 341 ;
Principals, etc., 30.
Rex V. Walkley, Evidence, 537, 544.
Rex V. Wall, Forgery, 212.
Rex V. Wallis, Burglary, 79.
Rex V. Walsh, Larceny, 237.
Rex V. Walter, Evidence, 547.
J
TABLE OF CASES, DIGESTED. Ixix
Rex V. Walters, Burglary, 69.
Rei' V. Wandsworth, New Trial, 582.
Rex V. Ward, Forgery, 174; Peijury, 416.
Rex V. Warner, Murder, etc., 363.
Rex V. Warren, Buiglary, 73 ; Murder, etc., 370.
Rex V. Warshaner, Forgery, 217.
Rex V. Warwick? hall, Evidence, 537.
Rex V. Waters, Murder, etc., 342, 372, 374 ; Procedure and Practice,
492.
Rex V. Watson, Crim. Inf., 3, 11 ; False Pretences, 162 ; Punishment,
599 ; Ti-eason, 469.
Rex V. Watton, Cost*«, 621.
Rex V. Watt««, Forgery, 224.
Rex V. Wavell, False Pretences, 159.
Rex V. Weale, Larceny, 283.
Rex V.Webb, Crim. Inf., 12; Evidence, 546, 570; Forgery, 185; Lar-
ceny, 268 ; Murder, etc., 345, 374 ; Procedure and Practice, 476.
Rex V. Webster, Crim. Inf., 7.
Rex V. Wedge, Rape, etc., 438. •
Rex V. Welboiim, Murder, etc., 376, 378.
Rex V. Welch, Coinbg, 84 ; Procedure and Practice, 512.
Rex V. Welland, Larceny, 280.
Rex V. Wells, Evidence, 563.
Rex V. Wellings, Embezzlement, 123, 138.
Rex V. Went, Larceny, 290.
Rex V. West, Malicious Injury, 313.
Rex V. Wejitbeer, Evidence, 563 ; Larceny, 271.
Rex v. Weston, Murder, etc., 357.
Rex V. West wood. Burglary, 71 ; Procedure and Practice, 496.
Rex V. Whateley, Crim. Inf., 8 ; Malicious Injury, 318.*
l{ex V. Wheatley, False Pretences, 154.
Rex V. Wheeler, Burglary, 73 ; Larceny, 289.
Rex V. Whiley, Forgery, 185, 227.
Rex V. White, Burglary, 80 ; Counsel, 532 ; Crim. Inf., 3 ; Embezzle-
ment, 141; Evidence, 535, 569; Perjury, 399; Principals, etc.,
25 ; Procedure and Practice, 508. *
Rex V. Whitehead, Conspiracy, 115.
Rex V. Whiteley, Murder, etc., 339.
Rex V. Whitley, Murder, 355.
Rex V. WTiithers, Murder, etc., 340.
Rex V. Whithome, Murder, etc., 331.
Rex V. Whiting, Counsel, 533.
Rex V. Whitney, Malicious Injury, 322.
Rex V. Whittingham, Embezzlement, 124.
Rex V. Wicks, Forgery, 224.
Rex V. Wiggs, Mumer, etc., 337.
Rex V. Wilcocks, Forgery, 184.
Rex V. Wilcox, Forgery, 191.
Rex V. Wild, Evidence, 535.
Rex V. Wilford, Burglary, 74.
Rex V. Wilkes, Crim. Inf., 2 ; Evidence, 564; Forgery, 183 ; Poaching,
390.
Rex V. Wilkins, False Pretences, 163 ; Larceny, 249.
Rex V. Wilkinson, Larceny, 245.
Ixx TABLE OF CASES, DIGESTED.
Rex V. Willett, Crim. Inf., 10.
Rex V. 'Williams, Crim. Inf., 3, 8 ; Duelling, 118 ; Embezzlement, 138;
False Pretences, 149 ; Forcible Entry, 170, 172; Forgery, 202,
203; Larceny, 241 ; Murder, etc., 363 ; Riots, 438.
Rex V. Williamson, Crim. Inf., 13 ; Murder, etc., 344.
Mex V. Willis, Larceny, 251.
Rex V. Willougliby, Forgery, 204 ; Murder, etc., 328.
Rex V. Wilson, Burglary, 75; Coining, 84; Crim. Inf., 15; Forcible
Entry, 170, 171, 173.
Rex V. Wink worth. Robbery, 450.
Rex V. Winter, Arson, 39.
Rex V, Withal, Burglary, 81,
Rex V. Withers, Crim. Inf., 15;- Judgment, etc.,' 589 ; Murder, etc., 361.
Rex V. Witt, Burglary, 75.
Rex V. Wood, Murder, etc., 360 ; Robbery, 446.
Rex V. Woodcock, Murder, etc., 378.
Rex V. Woodhead, Malicious Injury, 311.
Rex V. Woodrow, Crim. Inf , 12.
Rex V. Woodward, Arson, 4o ; Buri^lary, 80 ; Larceny, 289 ; Malicious
Injury, 323 ; Procedure and Practice, 490.
Rex V. Woolcock, Riots, 436, 441.
Rex V. Wooldridge, Coining, 86.
Rex V. Wooler, Juries, etc., 521.
Rex V. Woolford, Larceny, 306.
Rex V. Wooller, New Trial, 582.
Rex V. Woolmer, Murder, etc., 332.
Rex V. Worker, Poaching, 385.
Rex V. Worrall, Larceny, 279.
Rev V. Wren, Bail, 611.
Rex V. Wright,'Crim. Inf, 3, 4, 13 ; Larceny, 269 ; Persons capable of
Crimes, 18 ; Procedure and Practice, 473 ; Suicides, 457.
Rex V. Wrigley, Murder, etc., 373.
Rex V. Wroxton, Bigamy, 60.
Rex V. W. R. Yorkshire,^ Costs, 615.
Rex V. W. R. Yorkshire, (Justices) Error and Appeal, 500.
Rex V. Wyatt, Murder, etc., 382.
Rex V. Wylde, Evidence, 570.
Rex V. Wylie, Forgery, 227.
Rex V. Wymer, Larceny, 292.
Rex V. Wynn, Procedure and Practice, 476.
Rex V. Wynne, Larceny, 245.
Rex V. Yates, False Pretences, 159.
Rex V. Yend, Larceny, 281.
Rex V. Young, Crim. Inf, 8 ; Escape, Rescue, etc., 601 ; False Pretences,
146 ; Procedure and Practice, 496.
Rex V. Younghusband, Crim. Inf , 10, 14.
Roberts v. Preston, Railways, etc., 427.
Robinson, In re. Bail, 610.
Ruston's Case, Evidence, 569.
Ryalls V. Reg., Judgment, etc., 586 ; Perjury, 405 ; Procedure and
Practice, 490.
Ryan v. Shilcock, Burorlarv, 68.
Samuel v. Payne, Apprehension and Arrest, 602.
TABLE OF CASES, DIGESTED. Ixxi
SandersoD v. Piper, Foi^ery, 177.
Sawdou's Case, Juries, etc., 524. ,
Sayer v. Glossop, Bigamy, 65.
Scatter^ood v. Sylvester, Larceny, 309.
Scott, Ex part«. Apprehension and Arrest, 605.
Sharpe's Case, Procedure and Practice, 484.
' Shaw's Case, Principals, etc., 30.
Slierrington's Case, Evidence, 535.
Sill V. Keg., Ermr and Appeal, 594 ; False Pretences, 167.
Silversides v. Reg., Government Stores, 230; Judgment, etc., 590.
Simmons v. Millengen, Apprehension and Arrest, 604.
Smith, Ex pai-te, Crim. Inf., 3.
Smith V. Reg., Procedure and Practice, 503, 517.
Stephens v. Slyers, Assault and Battery, 47.
Stocken v. Carter, Assault and Battery, 48.
Sunderland's Case, Bigamy, 61.
Swaile's Case, Bail, 612.
Sjdserff v. Reg., Conspiracy, 110.
Tarry v. Newman, Larceny, 274.
Taylor v. Xewman, Larceny, 284.
The Queen's Case, Conspiracy, 114.
Thomas v. Russell, Larceny, 286.
Tbompsoil, Ex parte. Assault and Battery, 57.
'Riompson, In re. Assault and Battery, oS,
TuUej'v. Corrie, Murder, etc., 351.
. Tunniclifle v. Tedd, Assault and Battery, 56.
, Turner v. Meymott, Forcible Entry, 171.
Two Sicilies v. Willcox, Persons capable of Crimes, 24.
Uphold v. Leit, Forgery, 209.
Vaughton v. Bradshaw, Assault and Battery, 56.
Wadham v. Rigg, Embezzlement, 143:
Wakefield's Case, Evidence, 566.
Wakley v. Cooke, Crim. Inf., 15.
Walker V. London (Mayor, etc.), Larceny, 309.
Walker v. Reg., Perjury, 407. '
Walker's Case, Juries, etc., 522.
Wason, Ex parte, Procedure and Practice, 479.
Watson's Case, Evidence, 571, 574.
White V. Edmimds, Apprehension and Arrest, 603.
White, In re, Juries, etc., 521.
White V. Reg., Error and Appeal, 593.
Whitehead v. Reg.. Judgment, etc., 586 ; Procedure and Practice, 487.
Whiteley v. Chappell, Personation, 424.
Wickes V. Clutterbuck, Larceny, 286.
Wild's Case, Murder, etc., 337.
Wilkes V. Rex, Crim. Inf., 2 ; Judgment, etc., 585.
Wilkinson v. Dutton, Assault and Battery, 57.
Williams v. East India Company, Gunpowder, 232.
Williams, Ex parte, Crim. Inf., 10.
Williams v. Reg., Larceny, 281 ; Procedure and Practice, 494,
Windsor, In re, Forgery, 175.
Winsor v. Reg., Evidence, 566, 567 ; Juries, etc., 527, 528.
Wootton V. Dawkins, Murder, etc., 366.
Ixxii
TABLE OP CASES, DIGESTED.
Womersley'e Case, Costs, 615.
Wright's Case, Forgery, 189.
Wright V. Court, Apprehension and Arrest, 603.
Wright V. Reg., Conspiracy, 112 ; Juries, etc., 528 ; Error and Appeal,
593.
Wright V. Rex, Procedure and Practice, 490.
Young, In re. Costs, 614.
Young V. Rex, False Pretences, 164 ; Procedure and Practice, 495.
ADDENDA.
Dubois, In re, Extradition, 623.
Haylocke v. Tharke, Arrest, 605.
Reg. V. Adams, Forgery, 214.
Reg. V. Badger, Crim. Inf., (note 3) 9.
Reg. V. Clarke, Evidence, 553.
Reg. V. Evans, Larceny, 238.
Reg. V. Greenwood, Coining, 95.
Reg. V. Williams, Concealment of Births, 104.
Head Rfeg. v. Campbell for Reg. v. Compbell, page 874.
Reg. V. Laugher " Rex v. Laughen, page 22.
Rex V. Barnes, " Reg. v. Barnes, page 615.
Rex v. Healey " Reg. v. Healey, page 488.
Rex V. Jepson, " Reg. v. Jepson, 463.
CRIMINAL INFORMATION.
-♦•♦-
L Wl!EN 6RA>TED.
1 . General Principies^ 1 .
2. Ez-offu:io by the Attomty- Gen-
eral^ 2.
3. For Libeflous Publications, 2.
(a) What are, 2,
(h) Wfto entitled to,Z,
(c) Necesaani Affidavits, A,
(d) ProofofPuUication,A,
(cj Form and Validity of In-
formation, 5.
(f ) Justifying Publication, 6.
(p) Costs, 7.
4. Against Magistrates, 7.
(ii) Grounds, 7.
(b) Time of Application, 9.
( c ) Ntftice of Application, 9 .
5. Sending a ChcUlenge, 10.
6. Against Parish Officers, 11.
7. /a 0/Aer Ca«€J, II.
8. Application far InformaJdon ,13.
9. lime, 13.
10. Affidavits, 13.
1 1 . Other Point* of Practice, 1 5.
12. Costs, 16.
13. Conviction, 16.
*L WllKN GRANTED.
1. General PrindpUs,
The granting of crhhinal informa-
tion is discretionary under the cir-
eniofitances. ^mm.Loi!lb,323. And
see Rex v. RoUnswiy 1 W. Bl. 541.
The court will not entertain, ap
application for a criminal informa-
tion on light or trivial grounds, or
▼here no imputations are made in-
dividually on the person applying
for the information, but will leave
him to his remedy by action or in-
dictment. Reg.\.Mead^4:3\XT,lO\A
On a rule for information, fthon^h
t^ie court may think a ground is laid,
1
yet if under the circum.stances the
payment of the prosecutor's costs
appears an adequate punishment,
they will discharge the rule on the
defendant's undertaking so to do.
Hex V. Morgan^ 1 DougT. 314.
Not grantable against a very poor
person. Anon, Lotlt, 155.
The court will not grant a crimi-
nal information on the sole testimony
of a particeps criminis, (uncontra-^
dieted) where the oftense is against
the public interest, as bribery m the
election of an alderman, who will,
by virtue of his office, be a justice
of peace. Rex v. Steward^ 2 B. &
Ad. 12.
To obtain a criminal information,
the applicant should apply to the
court in the first instance, and be-
fore he has elected to take another
course of proceeding. Reg. v.
MarshaU, 4 El. & Bl. 475 ; 3 O. L.
R. 676 ; 1 Jur., N. S. 676 ; 24 L.
J., Q.B. 242. ,
A rule was obtained for a crimi-
nal information against a county
court judge for alleged misconduct
in his office. The affidavit in sup-
port of the rule stated that the ap-
plicant had adressed a memorial to
the lord chancellor, setting forth
the substance of the facts. It ap-
peared from affidavit in answer that
the memorial to the lord chancellor
contained general charges of mis-
conduct, and specified the particu-
lar misconduct complained of, and
prayed for an inquiry into the be-
havior of the jucbe, and that the
lord chancellor had declined to in-
2
CRDilNAL INFORMATION.
terfere. The court discharged the
rule on the ground that the appli-
cant had elected his remedy. Jtb.
A letter between private individ-
uals, containing abusive matter, but
not inciting to a breach of the peace,
will not support an application for
a criminal information. Daky Ex*
parU, 2 C. L. R. 870— B. C.
The court will not grant a crimi-
nal information for breach of a
public statute creating a state offense
on the application of a private per-
son, but only on the information of
the law officers of the crown. Oraw-
jAay, JEx parte ^ 8 Cox. C. C. 356 ;
3 L. T., N. S. 320— Q. B.
If a private person desires to pun-
ish an infraction of such a statute,
he must do so by the ordinary ma-
chinery for the administration of jus-
tice,b| preferring an indictment. 76.
An information was refused until
%an action for the same offense was
discontinued. Hex v. Fielding, 2
Burr. 654 ; 2 Ld. Ken. 386.
2. Ex-officio hy the Attorney- General,
Information for a misdemeanor
^refused to the attorney-general, on
behalf of the crown, because he
may grant one himself. Rex v.
Ph/mmUh (Mayor), 4 Burr. 2090.
May be filed by the solicitor-gen-
eral during a vacancy of the office
of attorney-general, and such va-
cancy need not be averred on the
record. Rex v. WiU^, 4 Burr. 2576;
S, JR. Wiikei V. Rex {%n error), 4
Bto.jP. a 360,
The court will not give leave to
quash an information filed ex-officio
by the attorney-general. He may
stop the proceedings upon it by nolle
prosequi, and file another, kex v.
Stratton, 1 Dougl. 239.
A defendant ui an information at
the suit of the attorney-general is
not entitled to a change of venue
without his consent. Att.-Gen, v.
Smith, 2 Price, 113.
In an information at the suit of
the crown, the attorney-general, is
entitled, as matter of right, to*
amend the information on payment
of costs. Att.'^ren, v. Ray, 11 M.
& W. 464; 7 Jur. 561; 12 L. J.,
Exch. 352.
3. For LiheHotis Publication.
(a) What are.
An information lies for a libel re-
flecting on the character of a justice
of the peace. Anon, Lofft, 462.
So, for sending a letter, charging
the complainant vfixh an unnatural
crime, although in very guarded and
general terms, and the complainant
does not positively swear to his in-
nocence. Rex V. Dennison, Loft,
148.
So, for printing an account of a
ludicrous marriage between an act-
ress and a married man. Rex v.
Kinnersley, 1 W. Bl. 294.
An information held good, though
the matter published merely held
the prosecutor up to ridicule. Rex
V. Benfield, 2 Burr. 985.
An information lies for singing •
songs in the streets, reflecting on
the prosecutor's children, with in-
tent to destroy his domestic hapjH-
ness. Ih,
An information lies against a
member of parliament for publish-
ing a speech in a newspaper, con-
taming slanderous matter. Rex, v.
Abingdon (Lord), 1 Esp. 226; Peake,
236 — Kenyon.
A criminal information having
been granted against a defendant,
he, before the trial at nisi prius, dis-
tributed hand-bills in the assize
town, vindicating his own conduct,
and reflecting on tlie prosecutor's ;
this matter being disclosed to the
judge at nisi prius by an affidavit,
was held a sufficient ground to put
off the trial ; and that affidavit be-
ing returned to the court, they
granted another information on it
against the defendant, considering
the affidavit taken at nisi prius as
taken under the authority of the
court. Rex y. JolUffe, 4 T. R. 285.
The tK)urt will grant a criminal
information for publishing in a news-
CRIMINAL INFORIVIATION.
3
paper a statement of the evidence
given before a coroner's jury ac-
companied with comments, although
the statement is correct, and the
party has no malicious motive in
the publication. Rex v. Fleets 1 B.
k A, 379.
The court will grant a criminal
information against the publisher of
a newspaper for a libel reflecting on
the clergy of a particular diocese,
and generally upon the clergy of the
church of England, though no indi-
vidual prosecutor was named, and
tiiough the libellous matter was not
negatived on affidavit : it is suffi-
cient to state the publication of the
libel by the defendant. Rex v.
Wmiam, 1 D. & R. 197 ; 5 B. &
A. 595.
An order made by a coi-poration
and entered in their books, stating
that A. (against whom a jury had
found a verdict with large damages
in an action for a malicious prose-
cution for perjury, which verdict
had been confirmed) was actuated
by motives of public justice, in pre-
ferring the indictment, is such a libel
reflecting on the administration of
juftice, for wliich the court will
grant an information against the
members making that order. Rex,
V. »W«on, 2T.R. 199.
So, an information will lie for
publu^hing a reflection on a judge
and jury for acquitting a prisoner.
Bex v,' White, 1 Camp. 359, n. —
Grose.
The court refused to grant a crim-
inal information against a booksel-
ler, for printing a report of the
House of Commons, though it re-
flected on the character of an indi-
vidual. Rexv, Wright, ST,R. 293.
A party having been charged be-
fore the coroner with the crime of
murder, a newspaper, pending the
inquiry, published an article strong-
ly reflectmg upon him as a murder-
er. Having been committed for
trial, he was found guilty of man-
daughter, and sentenced to nine
months' imprisonment with hard la-
bor. Upon an application by him
for a criminal information for such
article, the court declined to inter-
fere, on the ground that there was
no personal malice suggested, and
that the article could now exercise
no prejudicial influence. Smith, Ex
parte, 21 L. T., N. S. 294— Q. B.
For Slanderotts Words spoken of
Magistrates,
Slanderous words spoken of and
to a mayor in discharge of his office
as mayor, and of him in the execu-
tion of his office, the mayor being
also a magistrate in virtue of his
office, are the subject of a criminal
information. Reg, v. Rea, 17 Ir.
C. L. R. 584— Lefroy, C. J., and
Hayes, J.
Such words are not the subject of
an indictment, nor, consequently, of'
a criminal information — Per O'Brien
and Fitzgerald, J J.
(b) Who entitled to.
On a motion for a criminal infor-
mation for a libel impugning the
conduct of a jury, it appeared that
the foreman had published a letter
commenting in violent terms on the
alleged libel, and that, before pub-
lication, he communicated a copy
to the other jurymen. The letter
was signed by the foreman " for self
and fellows"; and it appeared to
the court that the affidavits afforded
groimd for believing that some of
the jurymen knew of the foreman's
intention to publisli the letter early
enough to have given him notice of
their dissent from his doing so, which
they had not done : Held , that neith-
er were these jurymen, nor was the
foreman, entitled to the criminal in-
formation. Reg, V. Lawson, 1 Q. B.
486 ; 1 G. & D. 15 ; 5 Jur. 387.
If a party who has been libelled
puts hmiself into communication
with the libeller, for the purpose of
retorting upon or obtaining redress
CRIMINAL INFORIMATION.
from him, the court will not grailt
a criminal information. Beaiiclerkj
ex parte^ 7 Jur. 373 — Q. B.
(c) Necessary Affidavits.
It is an invariable rule not to
grant an information for a libel,
without an Ixculpatory affidavit,
unless where the party libelled is
abroad at a great distance, or the
subject-matter of the charge is gen-
eral imputation, or an accusation of
criminal language held in parlia-
ment. Jiex V. Haswelly 1 Dougl. 387.
It is a general rule that the court
will not grant an information for a
private libel, charging a particular
oifense, unless the prosecutor will
deny the charge upon of^th. Rex v.
Miles, 1 Dougl 284.
An affidavit to found a motion
for a criminal information for a
libel must distinctly negative the
charge, unless the party libelled is
abroad, or the charge is general.
Bex V. Wright, 2 Chit. 162.
Although a party applying for a
criminal information must shew him-
self to be an innocent party, yet the
court made a rule absolute for such
information against the publisher of
a libel, which affected several parties,
notwithstanding that the charac-
ter of the person principally attack-
ed, and on whose affidavit the rule
nisi had been obtained, was im-
peached on shewing cause. Reg. v.
Gregory, 1 P. & D. 110 ; 8 A. & E.
907.
A rule nisi for a criminal infor-
mation for a libel was discharged,
on an affidavit made by a person
who swore to the truth of the libel.
This person was indicted for per-
jury ; the bill was found and he ab-
sconded. It appeared from the affi-
davits of several persons that tl)e
former affidavit was entirely untrue.
The court, under these circumstan-
ces granted another rule nisi for a
crimmal information, and made it
absolute. Rex v. Eve, 1 N. & P.
229 ; 5 A. & E. 780 ; 2 H. & W.
450.
(d) Proof of Publication,
The rule established at nisi prius
in prosecutions for libel in a news-
paper, viz., that, after production of
the stamp-office affidavit, a pa|)er
corresponding with it in title, print-
er's and publisher's name, and place
of publication, may be put in and
read, as published by the parties
therein named, without other proof
on this point, apjilies equally on
motions for criminal inform ationi^.
Rex V. Donnison, 4 B. <& Ad. 698.
A rule for a criminal information
against the publisher of a newspaper
libel must be drawn up on reading
the newspaper, and the newspaper
must be tiled ; otherwise the court
will discharge such a.rule, although
properly granted on production of
a certified copy from tlie stamp-
office, under 6 & 7 Will. 4, c. 76,
s. 8, of a declaration by the defend-
ant that he is publislier of a news-
))aper therein described, and' on pro-
duction of a newspaper correspond-
insf to it, which contains the libel.
Reg. V. WboJmer, 4 P. & D. 137 ; 12
A. & E. 422.
If an affidavit on which a rule nisi
is granted for a criminal informa-
tion for a libel does not swear to a
publication, the rule cannot be sup-
ported, though the affidavits of the
other side admit the publication.
Reg. V. Baldvnn, 3 N. & P. 342 ; 1
W. W. & H. 158 ; 8 A. & E. 168;
2 Jur. 856.
A statement in an affidavit that
the defendant did print and insert a
libel in a certain newspaper, a copy
of which is annexed, is not sufficient
proof of publication to make the de-
fendant liable to a rule nisi. Ih.
A motion for a criminal informa-
tion for libels published in a news-
paper was made upon affidavits con-
taining the stamp-office certificate
verifying the declaration of publi-
cation and printing, under Q & 7
Will. 4, c. 76, s. 8. The affidavits
also set forth the libel, stating it to
be contained in a newspaper which
(as appeared by the affidavits) cor-
CRIMINAL INFORMATION.
5
responded with the description in
the stamp-of¥ice declaration. At
the time of the motion, a newspaper,
likewise so corresponding, was slie wn
to the court. The rule nisi was
granted ; but it was not drawn up
on reading the newspaf )er ; nor was
the newspayjer annexed to the affi-
davit or tileil : — Held, not sufficient
at common law or under the stat-
ute; and that the newspaper could
be shewn to the court on moving to
make a rule absolute. Reg, v. WooU
mtr, 12 A. & R 422 ; 4 P. & D. 137.
llie court will discharge a rule
for a criminal information for a li-
bel against the publisher of a news-
paper, where, in the affidavits upon
which the rule had been obtaineil,
and the affidavits sworn at the
stamp-office, the defendant was de-
scribed as of different places. Rex
T. Frxmcis, 4 N. & M. 251; 2 A.
k E. 49.
Where a newspaper is filed, to-
gether with affidavits, in support of
a motion for a criminal information
for a libel, the court will take notice
of it, if it corresponds in the neces-
sary particulars with the stamp-
office affidavit, though it is not an-
nexed to and expressly identified by
any affidavit. Ih.
A rule nisi for a criminal informa-
tion having been obtained against
W. for an alleged libel on L., W.
filed affidavits in answer adducing
fresh charges against E. Before
cause was shown, C, who was de-
fendant in an action at E.^s suit for
libel, pleaded a justification, con-
taining substantially the same mat-
ter as the fresh charges adduced by
W., and also matter bringing into
qaestiou the truth of the original
charge. The court refused, on mo-
tion by E., to stay the hearing of
argument on the rule against W.
till the action of E. against C.
should have been tried. Reg, v.
WiUmer, 15 Q. B. 50.
The mode of proving libels pub-
lished in newspapers, by the pro-
duction of certified copies of de-
clarations of proprietorship, filed
under 6 & 7 Will. 4, c. 76, s.. 8, is
no longer available, as that section
is repealed by 32 & 33 Vict. c. 24,
s. 1 , j)er Fii-st Schedule, and conse-
quently the decisions digested under
this head are no longA* law.
But by 32 & 33 Vict. c. 24, Sec^
ond Schedule, section li), of 6 & 7
Will. 4, c. 76, which enacts, that,
" if any person shall file any bill in
" any court for the discovery of the
" name of any person concerned as
" printer, publisher or proprietor of
" any newspaper, or of any matters
" relative to the printing or publish -
" ing of any newspaper, in order the
" more effectually to bring or carry
** on any suit or action for damages
" alleged to have been sustained by
" reason of any slanderous or libel-
" lous matter contained in any such
" newspaper respecting such person,
" it shall not be lawful for the de-
'* fendant to plead or demur to such
" bill, but such defendant shall be
*' compellableto make the discovery
*' reqmred : provided always, that
" such discovery shall not be made
*' use of as evidence or otherwise in
** any proceeding agahist the de-
" fendant, save only in that pro-
" ceedinsc for which the discovery is
*' made,'' is kept alive and in force.
(e) Form and Validity of Informal
tion.
An information for a libel need
not charge the offense to have been
committed vi et armis, or allege
that the libellous matter is false.
Rex V. Burke, 7 T. R. 4.
On an information for falsely and
maliciously publishing a libel con-
cerning the king, by stating in a
newspaper that his majesty was af-
flicted with mental derangement,
the jury found the defendant guilty
of so doing : — Held, on a motion for
a new trial, first, that to assert
falsely of his majesty, or of any in-
dividual, that he labors under the
affliction of mental derangement, is
a criminal act, and a malicious inten-
CRIMINAL ^FORMATION.
lion may be inferred from the mere
fact of publication, unless evidence
is given by the defendant to rebut
such inference : secondly, that such
an assertion concerning the king,
being in itself mischievous to the
public, is an indictable offense, with-
out any allegation or direct proof of
a malicious intention : thirdly, tliat
where the jury desired to know
" whether, in order to convict a de-
fendant for the publication of a li-
bel, a malicious hitention must not
have existed in his mind," they
were correctly answered by the
judge presiding at the trial, who in-
formed them, that "a j^erson who
publishes that wliich is calumnious
concerning the character of another
must be presumed to have intended
to do that which the publication is
necessarily and obviously calculated
to effect, unless he can show the con-
trary, and that the onus of proving
the contrary lies upon him : " and,
fourthly, that where the publisher of
a libel states that the fact which he
communicated is "from authority,"
and it appears that the fact is un-
true, he IS guilty of a false assertion,
in the criminal sense of the word.
Rex V. Harvey^ 3D. & R. 464 ; 2 B.
& C. 257.
Information hekVgood for pub-
lishing a libel ac^aiust two persons,
where the publishing was one single
offense. Rex v. Berifield, 2 Burr,
983.
Where several persons were charg-
ed in the same information, it was
held good, the offense arising out of
one joint act. lb.
When an information alleged that
the defendant, intending to insinu-
ate and cause it to be believed that
diverse liege subjects of the king
had been inhumanly cut down,
maimed and killed, by certain troops
of the king, unlawfully and mal-
iciously published a libel of and con-
cerning the government of this
realm, and of and concerninff the
troops, and the only innuendo in
the libel was applied to the word
" dragoons," meaning the troops of
the king, and meaning thereby that
divers liege subjects of the king had
been inhumanly cut down and killed
by the said trobps of the king : —
Held, on arrest of judgment, that
this was sufficiently certain, without
defining what particular troo|)s were
meant. Rex v. Burdett^ 4 B. & A.
314.
So, where an information alleged
that a libel was published of and
concerning the government, and the
libel did not in express terms chaise
the acts to have been done by the
government or its order, the whole
of the libel must be looked at, in
order that the court may interpret
it in the way in which ordinary per-
sons would understand it, and judge
from the whole tenor of it whether
it is written of and concerning the
government. Ih,
An introductory averment in an
information, that outrages had been
committed in and in the neighbor-
hood of N., is divisible : so that it
need not be proved that they were
committed in both places ; and four-
teen or fifteen miles from N. may be
considered in the neighborhood. Rex
V. Sutton, 4 M. & S. 532.
Upon an information against a
defendant for libel, for that he, wick-
edly, maliciously, and seditiously
did write and publish a certain false,
scandalous, and seditious libel " of
and concerning his majesty's gov-
ernment and the employment of his
troops, according to the tenor and
effect following :" (setting forth the
libel verbatim) : the words "of and
concerning" are a sufficient intro-
duction of the matter contained in
the libel, and a sufficient averment
that it was written of and concern-
ing the king's government, and the
employment of his troops. Rex ▼.
Home, Cowp. 672.
(f) Justifying Publication.
[6^7 Vict c. 96, 9, 6.]
Where a defendant in an infor-
mation for a libel has pleaded the
CKIMINAL INFOmiATION.
truth of the chamcs under G <& 7
Vict, c 96, 8. 6, evidence is not admis>
able in support of the plea tliat the
same charges had been previously
pabUs>hed within the knowledge of
the prosecutor, and that he had not
taken legal proceedings against the
publisher. Beff. v. Newman^ Dears.
G. C.85; 1 El. & Bl. 268 ; 3 C. & K.
«52;17Jur.617;22L.J.,Q.B.156.
Where a plea of justification con-
tains several charges, and the prose-
cutor replies generally, denying the
whole, tlie prosecutor is entitled
to a verdict unless the defendant
proves to the satisfaction of the jury
the truth of all the material allega-
tions ; and if the defendant fails to
prove the truth of all the matters
charged, it is no ground for a new
trial that, with respect to some of
those upon which the jury gave a
verdict against the defendant, their
finding was against the weight of
the evitlence. Ih,
But the court, in pronouncing sen-
tence, is to consider the evidence on
the one side and on the other, and
to form their own conclusion wheth-
er the guilt of the defendant is ag-
gravated or mitigated by the plea,
and by the evidence given to prove
or to disprove the same. lb.
Affidavits showing the grounds
upon which the defendant proceeded
in pleading certain allegations in a
plea of justification, in support of
which no evidence was given at the
trial, are receivable in mitigation of
punishment, but not as proving the
trutJi of tlie allegations. lb.
If, in an information for a libel,
the plea states that the prosecutor,
who had been a Dominican, had
earned the reputation of a scandal-
ous friar, a witness for the defendant
may be asked as to the prosecutor's
moral chai'acter. Reg, v. Newman^
3 C. & K. 252— Campbell.
The special plea of justification
given by 6 & 7 Vict. c. 96, s. 6, can-
not be pleaded to an indictment for
a seditious libel. Beg. v. J>ujffy^ 2
Cox, C. C. 45.
(g) Costs,
Where in an information for a li-
bel judgment is given for the defend-
ant, he is entitled to recover from
the prosecutor the costs sustained by
reason of such information, under 6
& 7 Vict. c. 96, 8. 8, although the
only plea is not guilty, and thejudge
at the trial certified under 4 & 5
Will. & M. c. 18, 6. 2, that there
was reasonable cause for exhibiting
the information. Beg, v. Latimer,
15 Q. B. 1077 ; 15 Jur. 314 ; 20 L.
J., Q. B. 129.
4. Against Magistrates,
(a) Grounds,
When a justice of the peace acti
from indirect or corrupt motives, the
court will punish him by informa-
tion. Bex V. Cozens y 2 Dougl. 426.
No information will be granted
against justices acting in sessions,
unless in very flagrant cases. Bex
V. Seaford {Justices), 1 W. Bl. 432.
Wherever magistrates act up-
rightly, though they mistake the
law, no information will be granted
against them. Bex v. Jackson, 1 T.
K. 653.
On an application for a rule nisi
for a criminal information against a
magistrate, the question is not
whether the aq^ done might on full
investisjation be found to be strictlv
right, but whether it proceeded from
oppressive, dishonest, or corrupt mo-
tives (under which fear and favor
may generally be included), or from
mistake, or error ; in either of the
latter instances the court will not
grant the rule. Beg, v. Barron, 8
B. & Ad. 432.
The court will not grant an in-
formation against a magistrate, for
having improperly convicted a per-
son, unless the party complaining
makes an exculpatory afiidavit, de-
nying the facts. Bex v. Webster, 8
T. li. 388.
A criminal information was re-
fused against a magistrate for re-
turning to a writ of certiorari a con-
viction of a party in another and
8
CRIMINAL INFORMATION.
more formal shape than that in
which it was first drawn up, and of
which a copy had been delivered to
the party convicted by the magis-
trate's clerk ; the conviction return-
ed being^ warranted by the facts.
Eex V. Barker, 1 East, 186.
An information goes against a jus-
tice for committing a man for not
paying Is. for discharging his war-
rant. Rex V. Jones, 1 Wils.»7.
Rule nisi for an information
against justices of peace making a
commitment without previously
taking a prosecutor's oath, who
was a peer of the realm, and also
for neglecting to take the noble
prosecutor's recognizance to prose-
cute, discharged, these being deem-
ed only irregular, not criminal.
Rex V. Fielding, 2 Burr. 719.
An information will be granted
against a justice of the peace, as
well for granting as for refusuig an
ale license improperly. Rex v. HoU
land, 1 T. R. 692.
An information was granted
against justices of peace, for refus-
ing to grant an ale license from mo-
tives ot resentment. Rex v. Hann,
8 Burr. 1716. And see Rex v. Young,
1 Burr. 556.
An information against a justice,
upon a charge of remsing to grant
a license, will be refused, if the rea-
sons assigned for the refusal prove
false in fact. Rex v. Athay, 2 Buit.
653.
An»information was granted for
refusing to grant licenses to those
publicans who voted against their
recommendation of candidates for
members of Parliament for the bor-
ough. Rex V. Williams, 3 Bun*. 13,
17. '
But where the justices had not
appeared to have acted coiTuptly,
an information was refused. Rex
V. Baylis, 3 Burr. 1318.
The court will not grant a crimi-
nal information for calling a magis-
trate a liar, accusing him of mis-
conduct in reference to his having
absented himself from an election
of clerk to the magistrates, and
threatening a repetition of the same
language whenever suclbmagistrate
came into the town, unless there ap-
peal's an intention to provoke a
breach of the j)eace. Ex parte Chap-
man, 4 A. & E. 773.
The court will not grant a nilenia
for a criminal information again^
magistrates, unless it ai)j>ears they
have acted from an oppressive, dis-
honest, or corrupt motive, under
which fear and favor aVe included.
Fentiman, In re, 4 N. & M. 128 ; 1
A. &E. 127.
A criminal information was grant-
ed for these words, in a letter to a
mayor : " I am sure you will not be
persuaded from doing justice by any
little acts of your town clerk, whose
consummate malice and wickedness
against me and my family will make
him do anything, be it ever so vile."
Rex V. Wkite, 1 Wils. "22.
Where a magistrate upon whose
Eroperty a malicious trespass had
een committed, issued a summons,
requesting the offender to appear
before himself, or some other mag-
istrate, and purporting that infor-
mation had been given to him (the
magistrate) on oatn, whereas no oath
had been taken, and the information
had been communicated by the mag-
istrate to the informer, the court in
discharging a rule for a criminal in-
formation against the magistrate
refused to give him his costs. Rex
V. Whateley, 4 M. & R. 431.
A rule for a criminal hiformation
will not be granted against justices
who wrongly or improperly reject
bail, unless it manifestly appears to
the court, by conclusive and satis*
factory evidence, that they were
also influenced by partial and cor-
rupt motives. Reg, v. Badger, 6
Jur. 994— B. C.
Where the pecuniary sufficiency
and solvency of bail are undisputed,
the rejection of such bail on the
ground of a coincidence of political
opinion with the person or persons
for whose appearance the bail offer
CRDIINAL INFORMATION.
to become surety is impn)j)er, even
though Kuch rejection by the justices
is reconcilable with -the absence of
corrupt motives. Ih.
Where justices reject bail on the
gronnd that the parties entertain
objectionable political ojunions, and
on other grounds which are con-
cealed and not stated, the court will
^nt a nile nL«d, calling on the mag-
li^trates refusing to show cause why
a criminal information should not
be filed asrainst them. lb.
The justices in answer to the rule
deposed that they were not actuated
by any corrupt or malicious motive
in the rejection of the bail. The
court discharged the rule, but re-
?nired them to pay all the costs. S,
I D. & M. 375 ; 4 Q. B. 468 ; 7 Jur.
216; 12L.J.,M. C. 66.
The court will not grant a crim-
inal information for unwritten words
impnUng to a justice malversation
in his office, it' the words neither
were spoken at the time when the
justice was acting nor tended to a
breach of the peace. MarU)orough
(Duke) Ex parte, 5 Q. B. 955 ; D. &
M. 720 ; 1 New Sess. Cas. 1U5 ; 8
Jot. 664 ; 13 L. J., M. C. 105. See
%. V. Rea, 7 Ir. C. L. R. 584—
Q.B.
When a crimhial information is
applied for aeainst magistrates, the
auestion for the court is, not whether
beir acts be found upon investiga-
tion to be strictly right or not, but
whether thev were influenced bv
corrupt, oppressive, or partial mo-
tives, or acted in error, and from
nustake only. In the latter case,
the court will not grant the rule.
Beg, Y, Badger,!). & M. 375 ; 4 Q. B.
468 ; 7 Jur. 21 6 ; 12 L. J., M. C. 66.
Where an assault is committed by
a magb^rate on an attorney several
days aft<?r he had conducted certain
proceedings agamstsuch magistrate,
the court will not grant a rule for
a criminal information (inasmuch as
the breach of the peace has not been
qui magistrate), but will leave the
party to the remedies by indictment
or action. Lee, Ex parte, 7 Jur. 441
—B.C.
r
(b) Time of Application,
The court will grant a rule nisi
for a criminal information at the
end of a tenn accainst a magistrate
for mal-practices during the term,
but not for any misconduct before
the term. Eex'v. Smith, 7 T. li. 80.
A criminal information for mis-
conduct in office may be moved for
against a magistrate in the second
term after the alleged misconduct,
though an assize has intervened, the
motion being made early enough to
allow of cause being shown in the
same term. lieg, v. Saunders, 10 Q.
B. 484.
Where facts tending to criminate
a magistrate took place twelve
months before the application to the
court, they refused to grant a crim-
inal information, although the pros-
ecutor, in order to excuse the de-
lay, stated that the facts had not
come to his knowledge till a very
short time before the application
was made. Hex v. Bishop, 5 B. &
A. 612.
A crirauial information may be
moved for against magistrates, for
misconduct in the execution of their
offices, in the second term after the
offisnse committed, there being no
interveninsj assizes. Hex v. Harries,
13 East, 270.
The court will not grant a nile
nisi for a criminal information
against a magistrate, so late in the
second term after the imputed of-
fense as to preclude him from the
opportimity of showing cause against
it in the same term. Hex v^ Mar-
shall, 13 East, 322.
If a complaint for an information
against a justice of the peace proves
frivolous, the attorney as well as
the original complainer must pay the
costs. Bex V. Fielding, 2 Burr. 654 ;
2 Ld. Ken. 386.
(c) Notice of Application,
A magistrate is entitled to notice
10
CRIMmAL INFORMATION.
before an application is made for a
criminal infonnation, where he is
charged with misconduct in his
magisterial capacity, although oth-
er misconduct is also charged. Rex
V. Heming, 2 N. & M. 477 ; 5 B. &
Ad. 666.
A magistrate is entitled in all
cases to six days' notice, of an in-
tention to apply for a rule nisi for a
criminal information ; and it is not
sufficient that, in point of fact, six
days have expired between the no-
tice and the motion, if the notice
contemplates an earlier application.
Ih,
5. Sending a Challenge.
The court will not grant a crim-
inal information for sending a chal-
lenge, if, in the course of the trans-
actions, out of which it arose, the
I)ro6ecutor has himself sent a chal-
enge to a third person connected
with the party against whom he
moves. Jiex v. Larrieu, 7 A. & E.
277.
And this, although the prosecut-.
or's challenore was sent into a for-
eign country, and did not show any
intention to break the peace here. lb.
An affidavit by A., stating that B.
had brought him a cliallenge from C,
and that B. liad refused to make an
affidavit that C. sent him with it, is
not evidence in which the court will
grant a rule nisi for a crimmal in-
formation against C. for sending the
challenge. Rex v. WiUett, 6 T. R.
294.
Rule to show cause for an infor-
mation for challenge granted, upon
producing only copies of the letters
containing it. Rex v. Chappely 1
Burr. 402^
An^nformation was refused where
the charge of giving a challenge
was made under false and ambigu-
ous colore; the words spoken admit-
ting of a favorable interpretation.
Pndeaux v. Arthur y Lofft, 393.
Where a person who was chal-
lenged to fight a duel applied for a
criminal inK>rmation, and in his af-
fidavit, in support of the applica-
tion, stated, "that the defendant
had been dismissed from her Majes-
ty'^ service, under circumstances
which would, in the opinion of offi-
cers and gentlemen, disentitle him
to make any appeal to the laws of
honor, in a case where no offense
was given " : — Held, tliat by casting
these imputations on the defeudailt,
the applicant had forfeited his right
to obtain the interference of the
court by a criminal information.
Reg, V. Dohertyy 1 Am. & H. 16.
Upon a motion for a criminal in-
formation ac^caiust A. for challens-
ing B., an affidavit stating that m
a correspondence between them A
had intimated an intention, after
the settlement of accounts between
himself and B., to require an apol-
ogy for offensive expressions con-
tained in a letter received by him
from B., or " such satisfaction as is
usual on such occasions between
gentlemen ;" and that afterwai-ds,
C., a relation of A., came \\dth a
letter of B. in his hand, — settled the
account by paying a balance due
from A. to B., and, after saying that
he had come in consequence of the
letter in his hand, delivered a hostile
message as from A. : — is insufficient
to connect A. with the challenge ;
and therefore the court refused the
rule. Rex v. Tounghushand^ 4 N. &
M. 850.
The affidavits in support of an
application for a criminal informa-
tion against a party for writing let-
ters provoking a breach of the|)eace,
stated the belief of the deponents,
that the letters were in the hand-
writing of the party, not from their
own knowledge of his handwriting,
but from the information of other
persons ; the court refused a rule to
show cause, on the ground that such
evidence would not warmnt a grand
jury in finding a true bill. Wiiliams,
Ex parley 5 Jur. 1133— Q. B.
The court also refused leave to
renew the application upon affida-
vits supplying sufficient evidence of
the hanawritmg. lb.
CRDIINAL INFORMATION.
11
6. Agcntut Parish Officers.
If a parish officer makes an alter-
ation in a poor-rate, after it has been
allowed by two justices, but with-
ont the approbation of tlie justices,
he cannot be punL*ihed by infonua-
tion. Bex v. Barratts 2 Dougl. 465.
An information lies for a conspir-
acy by parish officers and others to
marry persons settled in dilierent
parches, if the delinquents are of
good situation in life, but not if they
are low and indigent. Rex v. Comp-
ton, Cald. 246.
Granted against overseers for pro-
curing a marriage to change a set-
tlement. Bex V. Herbert, 2 Ld. Ken.
466.
Granted against overseers for pro-
curing a pauper to marry another
pauper with child of a bastard. Bex
V. Tarrcmi, 4 Burr. 2106.
Granted against overseers for pro-
curmg a soldier to marry a poor wo-
man who was an idiot, and charge-
able to the parish. Bex v. Waison,
1 Wils. 41.
The court refused a rule to show
cause why a criminal information
should not be granted against over-
seers, for endeavoring to induce
paujiers fraudulently to remove to
another parish, the remedy being by
indictment. Beg. v. Starwood ( Uver-
Kw), 9 Jur. 448 ; S. C. nom. Beg,
V. Jennings, 2 D. <fc L. 741 ; 1 New
Sew. Cas. 488 ; 14 L. J., Q. B. 488
-B.C.
By 4 A 5 Will. 4, c. 76, s. 97, if
any overseer shall purloin, embexzle,
or wilfully waste or misapply any
of the moneys belonging to any par-
ish, every such oifender shall upon
conviction before any two justices,
forfeit for every such offense any
sum not exceeding 20/.; an infor-
mation against a parish officer under
this statute for misapplying, without
the word " wilfuUv,'^ is bad. Car-
penier v. Mason, 4 P. & D. 439 ; 12
A, & E. 629.
7. Bi other Oases.
The court wiU not grant a crim-
inal information against the mem-
bers of a corporation for a misap-
j)lication of the corjjoration monev.
Bex V. Watstm, 2 T. R. 199.
A summons was issued ajrainst a
judgment debtor, under 9 & 10 Vict,
c. 95, s. 98, calling upon him to ap-
pear, and to be examined by the
judge of the court touching his es-
tate and effects, and the manner and
circimislauces under which he con-
tracted thiC debt whicli was the sub-
ject of the action m which the judg-
ment was obtained, and as to the
means and exi)ectation he then had,
and as to the proi)erty and means
he still had, of discharging the debt,
and as to the disposal he might have
made of any property. The debtor
appeared, and was duly sworn. The
judge asked him whether he was
prepared to pay ; he answered in
the negative ; and was entering into
an explanation of the circumstances,
when he was stopped by the judge,
who ordered his immediate commit-
tarto prison : — Held, that these cir-
cumstances afforded no ground for
criminal information, there being no
imputation of a corrupt motive on
the part of the judge. Anon, 16
Jur. 995— B. C.
Tlie court granted an informa-
tion against the inhabitants of a par-
ish for non-repair of a road, where
it was deposed that a bill of indict-
ment had been preferred at the as-
sizes, but thrown out by the grand
jury ; that two of the grand jurors
were proprietors of land in the par-
ish ; that one of them who had act-
ed on behalf of the parish at an
earlier stage of the dispute had stat-
ed to the foreman that th.e road was
useless, and that both had taken an
active part in opposing the finding
of the indictment, such deposition
being contradicted only by general
statements that the two had taken
no undue or active part in opix)sing
the finding. Beg. v. Upton St. Leon-
ards, 10 Q. B. 827 ; 2 New Sess.
Cas. 582 ; 1 1 Jur. 806; 16 L. J., M.
C. 84.
12
CRBIINAL INFOmiATION.
Woi-ds spoken of a person, al-
though they may contain serious
imputations, are not sufficient ground
for a criminal information, unless
tliey are of such a nature as are j
likely to provoke a breach of tlie
p0ace. Marlborough (Duke) Exparte^
5 Q. B. 955 ; D. & M. 720 ; 1 New
Sess. Cas. 195; 8 Jur. 664; 13 L.
J., M. C. 105.
Upon a motion for a criminal in-
formation, it api)eared that the ap-
plicant was an attorney, and an offi-
cer of the court, and the person
against whom the application was
made was a magistrate, and that
the latter had assaulted tlie former
in revenge, it was suggested, for his
having conducted some proceedings
against him on behalf a client, be-
fore justices, for a previous assault ;
the court refused to interpose its
extraordinary protection to the k\y-
plicant, but left him to his remedy
by indictment or action. Reg, v.
Arrowsmtth, 2 D., N. S. 704— B. C.
An information lies for a false re-
turn to a mandamus. Anon,, Lofft,
285.
But refused aojainst a man who
refused to serve the office of one
of the sheriffs of London. Rex v.
Grosvenor, 1 Wils. 18 ; 2 Str. 1193'.
The court granted an information
against a person refusing to take on
himself the office of sheriff, because
the vacancy of the office occasioned
the stop of public justice, and the
year would be nearly expired beforc
an indictment could be brought to
trial. Rex v. Woodrow, 2 T. R.
7319.
So, for endeavoring to procure the
appointment of certain i)ersons to
be overseers of the poor witli a view
to derive a private advantage to the
party. Rex v. Joliffe, 1 East, 1 54, n.
The surveyor of a hi^h road hav-
ing improi)erly expended a large
sum of money, borrowed by the
trustees under an act of parliament,
without the consent of the trustees,
which the act required, to sanction
the expenditure, the court refused
a criminal information, no corru[)t
motive being expressly alleged ; and
they will not convert a civil into a
criminal inquiry. Rex v. Friar, 1
Chit. 702.
An information wasorrantedajjainst
commissioners for exceeding their
powers. Rex v. Rogers^ 1 Ld. Ken.
373.
But refused against twelve com-
missioners for pulling down a turn-
pike, on a suggestion of irregularity
in the time and manner of the meet-
ing. Anon, Lofft, 199.
So, against a husband for endeav-
oring to retake his wife contrarv to
articles. Rex v. Lane (Lord), 1 W.
Bl. 18.
So, for embezzling money collect-
ed on a church brief. Rex v. St, Bo-
tolph, Bishopsgate, 1 W. Bl. 443.
So, for burying a dead body
found in a river, without sending
for the coroner. Rex v. Ptoby^l
Ld. Ken. 250.
But granted for maliciouslv press-
ing. Rex V. Webb, 1 W. Bl." 19.
An information for a nuisauce
will be refused, if an application to
the party is not shotvn. Rex v.
Green, 1 Ld. Ken. 379.
An information does not lie for a
riot, if the parties did not disperse,
and are within the penalty of the
riot act : otherwise it does. Anon,,
Lofft, 253.
Nor for pretending to read the
riot act. Rex v. Spriggins, 1 W.
Bl. 2.
All persons by their presence
count<*nancing a riot are liable to
an information. Rex v. Hunt, 1 Ld.
Ken. 108.
An infonnation was granted for
attempting to bribe a privy coun-
cillor to procure a reversionary pat-
ent of an office grantable by the
king under the great seal. Rex v.
Vaughan, 4 Burr. 2494.
An information was granted on
the de|X)sition of two i>ersons, for
the offering of a bribe by the de-
fendant at an election. J^x v. iiA-
erwood, 2 lA, Ken. 202.
CRDIINAL INFORMATION.
13
8. Application for hiformaiion,
Tlje party applying for an infor-
mation must come with clean hands
into court. Rex v. Eden^ LotFt,
72.
Therefore an information will be
refa«5ed to cheats and gamblers
against others of the Fame descrip-
tion. Rtx V. Peachy 1 Burr. 548.
So, an information for a challenore
was denied to the first sender of it.
Bexwlfankei/^ 1 Burr. 316.
In order to maintain an api)lica-
tion for a criminal information, the
applicant must leave himself wholly
m the hands of the court, and in no
way whatever make libellous at-
tacks on the other side. Rex v. Not-
tingham Journal (Proprietors), 9 D.
P. C. 1042— Q. B.
Although a party applying for a
criminal information must show
himself to be an innocent party, yet
the coAirt made a rule absolute for
puch information against the pub-
lisher of a libel, which afiected sev-
eral parties, notwithstanding that
the character of the person princi-
pally attacked, and on whose afiida-
vit the rule nisi had been obtained,
was impeached on showing cause.
%. wGregory, 1 P. <fc D. 110 ; 8
A. & E. 907.
Where a party assaulted gave his
aswilant into the custody of a police-
man, and gave him in charge at the
police station, whereupon he was
locked up till he gave bail for his
appearance to answer the charge on
the following day, but no further
proceedings were taken, the <?ourt
made a rule absolute for a criminal
information for the assault. Reg. v.
Gunk, 3 P. & D. 176 ; 8 D. P. C.
476; 11 A. &E. 587; 4 Jur. 316.
But the court refused a rule for a
criminal information for an assault,
upon its appearing that the appli-
cant had taken out a warrant against
theoUier party; though the appli-
cant offer^ that it should be part
of the rule, that it should abandon
the proceedings on the warrant.
^«w., 4 A. & E. 576, n.
9. Time,
The motion for a criminal infor-
mation must be made by the law
officers of the crown, or by a bar-
rister, and not by a private individ-
ual. Rex V. Lancashire (Justices), 1
Chit. 602.
Where a party had been aware
of the facts on which the applica-
tion for a criminal infoimation
against a magistrate would be
founded early in Easter Term, and
did not make the application till
the last day but three of Trinity
Term, the court refused a rule nisi.
Reg, V. Harris, 8 Jur. 516; 13 L. J.,
M. C. 162.— Q.B.
The court will not grant a nile
for criminal information in a case
where a whole term has been allow-
ed to intervene between the facts
alleged and the application to the
jurisdiction of the court. Reg. v.
Hext, 4 Jur. 339— B. C.
Tlie court will not grant a rule
nisi for a criminal information on the
last dav of term. Ex parte Tanner,
3 Jur. 10— B. C.
Leave to file a criminal informa-
tion for a libel should be applied for
in a reasonable time, before the ex-
piration of the second term after the
publication of it, if it come to the
knowledge of the prosecutor early
enough to enable him to move with-
in that period. Rex v. JoUie, 1 N.
& M. 483 ; 4 B. & Ad. 867.
10. Affidavits,
Contents,'] — An affidavit to found
a motion for a criminal information
must distinctly negative the chaige;
and it is usual to do so in the words
of the charge. Rex v. Wright, 2
Chit. 162.
If circumstances of suspicion only
are stated in affidavits in support of
a rule for a criminal information : —
Held, to be insufficient, unless the
deponents add their belief that the
partv against whom it is moved act-
ed iTom corrupt motives. Rex v.
WiUiamson, 3 B. & A. 582.
An information on Hen. 5, c. 4,
H
CRDITNAL INFORMATION.
against a person for practising as an
attorney whilst be was under-sheriff,
was refused , because the affidavit did
not mention what particular acts he
did as an attorney, of which the
court should judge. Rex \, Bully 1
Wils. 93.
If, in the affidavit to found a
ciiminal information, slanderous
words on the defendant be introduc-
ed, it will be a sufficient ground to
refuse the application. Eexw.Byme^
2 N. & P. 152 ; 6 D. P. C. 36 ; 7
A. &E. 190.
Where a magistrate, in answer to
a rule for a cruninal information,
stated that the applicant was "a
shuffiing and litigious fellow ;" the
court censured such language, al-
though they would not reiect the
affidavit. Kex v. Bum^ 7 A, & E.
190; 1 Jur. 659.
InfttltngJ] — Affidavits on motions
for leave to file criminal informa-
tions must not be intitled ; and if
they are, they cannot be read. Bex
V. Bobinson^ 6 T. li. 64f2.
Nor need the affidavits produced
on shewing cause against a rule.
Bex v. Harrison, (j T. R. 60.
But all affidavits made after the
rule is made absolute, must be in-
titled. Bex V. Bohinson, 6 ^. R.
642.
Affidavit intitled in the King's
Bench, upon which the attoi^pey-
general had filed an information ex-
officio against the defendant, permit-
ted to be read in aggravation after
judgment by default. Bex v. Mor-
gan^ 11 East, 457.
Before whom Sicom.^ — Affidavits
upon which an information is ap-
{)lied for, must not be sworn before
the attorney in the prosecution. Bex
V. Tpswich (Jailor), 2 Ld. Ken. 421.
Semble, that an affidavit to found
a criminal information for a libel
published in England, in parts be-
yond seas, may be sworn abroad.
Bex V. Satirist (JBditor),S N. & M.
532.
An affidavit, to put off a trial at
nisi prius, being returned to the
court, thev granted another inform-
ation on It against the defendant,
considering the affidavit taken at
nisi prius as taken, under the au-
thority of the court. Bex v. JolUffe,
4 T. R. 285.
Jurat, 1 — An affidavit purported
in the body to have been sworn be-
fore a magistrate residing at A., in
the county of York, and the jurat
was "sworn before me (the magis-
trate) at A.," omitting the county,
the court stated that they were not
prepared to say that the jurat was
wrong. Bex v. Bum, 7 A. <fe E
190 ; 2 N. <fc P. 152 ; 6 D. P. C.
36 ; 1 Jur. 659.
The county in which a deponent
is sworn to an affidavit to grant a
rule for a criminal information, made
before a commissioner, must appear
in the jurat. Bex v. Tounghxishand,
4 N. ifc M. 850.
7/i Mitigatian or Aggravation.^ —
Wliere a defendant was convicted
of a libel, which purported to have
been written in consequence of his
having seen a statement of facts in
different newspapers, an affidavit
that he read those statements in such
newspaper may be received in miti-
gation of punishment ; but an affi-
davit that the facts contained in
those statements were time, is not
admissible. Bex v. Burdett, 4 B. &
ASH.
When any defendant shall be
brought up for sentence on any in-
dictment, or information, after ver-
dict, the affidavits produced on the
part of the defendant, if any such
be produced, shall be first read, and
then any affidavits produced on the
part of the prosecution shall be read;
after which the counsel for the de-
fendant shall be heard, and, lastly,
the counsel for the prosecution.
Reg. Gen., K. B., M. T. 29 Geo. 3.
Bex V. Bunts, 2 T. R. 683.
When a defendant, who has suf-
CRDIINAL INFORMATION.
15
fered judgment by default in a crim-
inal prosecution, is brought up for
judgment, each party should come
prepared with affidavits disclosing
his own ease (if he means to produce
any affidavit at all) : but, if in the
course of the inquiry the court wishes
tobaveany point further explained,
they will give the defendant an op-
portunity of answering it on a future
day. JKex v. Wilson, 4 T. R. 487.
Affidavits allowed to be read on a
defendant's being brought up for
judgment, stating that the defendant
had made use of expressions aggra-
Tattng liis guilt, in the presence of
two persons who related them to the
persons making the affidavits, and
the prosecutor swearing that the per-
sons who lieard the expressions re-
fused to come forward, and were
supposed to be under the influence
of the defendant. Hex x. Archer, 2
T. R 203, n.
Where the party applied for time
to send to Tnnidad for an affidavit
of the truth of certain matters in a
libel, in order to show cause asjainst
such a rule, tlie court would not gmnt
further time. Affidavit* abroad, be-
fore judges there, and verified, al-
though receivable as affidavits of
debt, are not to be received on rules
to show cause, in opposition to affi-
davits made in K. B. JRex v. Dra-
per, 3 fimith, 391.
When a defendant who has been
convicted on an indictment comes
up to receive judgment, the prose-
cutor may read affidavits in aggra-
vation, though made by witnesses
who were examined at the trial, and
which affidavits he is at liberty to
answer. Bex v. Sharpness, 1 T. R.
228.
When a defendant is brought up
to receive judgment after convic-
tion, an affidavit by the prosecutor
in aggravation, stating that a third
person, who refuses to join in the
affidavit, had informed him that the
defendant after the trial had re-
peated in his hearing the libellous
matter for which he was indicted, is
not admissible ; at least, not without
swearing that such third person was
under the control orinfluenceof the
defendant. Bex v. Pinkerton, 2 East,
357. And see Bex v. Withers, 3 T.
R. 428, and Bex v. Mawhey, 6 T. R.
627.
1 1 . Other Points of Practice,
Where a rule nisi for a criminal
information, though served before,
reached the hands of the defendant
only the day before it was to be
argued : Held, that it must be en-
larged. Beg. V. Hely, 10 Jur. 1009
— B. C.
A party applying for an informa-
tion must waive his right of action ;
but if the court, on hearing the
whole matter, is of opinion that it
is a projKBr subject for an action,
they may tfive the party leave to
bring it. Itex v. Sparrow, 2 T. R.
198.
When a rule nisi, obtained for a
criminal information for a libel in
the Queen's Bench, is discharged on
showing cause, the aj)plicant may
bring an action in another court for
publication of the same libel. Wak-
ley Y.Cooke, 16 M. & W. 822 ; 4 D.
ifeL. 702 ; 11 Jur. 377; 16 L. J.,
Exch. 225.
A rule nisi for a criminal inform-
ation will not be granted where a
former rule for the same matter
ag^nst the same defendant has been
discharged, although the second
motion is made upon additional affi-
davits. Bex v. Smithson, 1 N. &
M. 775; 4B. ifc Ad. 861.
Where a rule for a ciiminal in-
formation was enlarged, on condi-
tion that the defendant would ap-
pear and plead immediately, in the
event of its being made absolute :
Held, that he was entitled to rea-
sonable time. Beg. v. Muntz, 2
Jur. 538— Q. B.
Before the defendant could in-
struct his London solicitors to plead
to the information, the prosecutor
had obtained a rule calling upon
him to show cause why the prose-
16
CRDIINAL INFOR^klATION.
cutor Khould not be at liberty to en-
ter an apjjearance and wgn judg-
ment. The court made the rule ab-
solute, but awarded costs against
the prosecutor, lb,
A joint information against sev-
eral cannot issue upon distinct rules
for one or more information or in-
formations against each. Rex v.
Hei/don, 3 Burr. 1270.
The court will not enlarge a rule
for a criminal information, in order
that the affidavit on which tlie rule
was obtained may be re-swoni. Hex
V. Cockshaw, 2 K & M. 378.
The rule that when a party has
failed in an application to the court
in consequence of not being' properly
prepared, he shall not be allowed to
renew it with new or amended ma-
terials, applies to public officers in
the discharge *of their duties, as well
as to private individuals. Beg, v.
Pickles, 6 Jur. 1039— Q. B.
In a criminal information for the
non-repair of a highway, the court
has no jwwer, either by common
law, or under 1 Will. 4, c. 22, s.
4, upon application by the prose-
cutor, to order the examination of a
witness upon interrogatories. Heg,
V. Upton St, Leonardos, 10 Q. B.
827; 12 Jur. 11; 17 L. J.,M.C. 13.
The court will not permit a sec-
ond application to be made for a
criminal information, unless leave
was reserved for the puri>ose on the
first application from very special
circumstances, such as being met
by affidavits which afterwards turn-
ed out to be based on perjurv. Mim-
ster, Ex parte, 20 L. T., N. S. 612
— Q. B.
12. Costs,
Under 4 & 5 Will. & M. c. 18,
s. 2, a defendant in a criminal in-
formation which is not "trie<l, or in
which a verdict is given for the de-
fendant, is entitled only to such an
amoinit of costs as equals the amount
of the prosecutor's recognizance.
JReg, V. Samle, 18 Q. B. 703.
Semble, that the proper mode of
obtaining such costs is for the de-
fendant to take out a side bar nile
for taxing the whole costs; and,
upon that being done, he is entitled
to so much of them as equals the
amount of the recognizance. lb.
13. Conviction,
After conviction on a criminal in-
formation, to which objections were
taken, the defendant must stand
committed, pending the considera-
tion of the judgment, unless tlie
prosecutor, expressly consents to his
standing out on bail. Reg v. Wad'
dington, I £ast, 143.
CRIMINAL LAW.
I PeRSOXS capable of COMMnriNG
Cbimes axd Misdeheanobs.
1. Agents, 17.
2. Ituane Peraont, 17.
3. DeafandDtaHb,2l.
4. Presumed Coercion of Wife, 22.
5. Drunkards, 23.
6. Foreigners, 23.
7. Corporations, 23.
8. Infants, 24.
9. Peers, 24.
10. Persons under Compulsion, 24.
1. Agents,
If a man does, by means of an in-
nocent s^ent, an act which amounts
to a felony, the employer, and not
tbe tigeni is accountable for the act.
%. T. Bleasdale, 2 C. A K. 765—
Erie.
If A., by letter, desires B., an in-
nocent ascent, to write the name of
. to a receipt on a post office order,
and the innocent agent does it, believ-
ing that he is authorized so to do, A.
is a princiiwil in this forgery, and it
makes no difference, that, by the
letter, A. says to B. that he h at
liberty to sign the name of S., and
4)e8 n^t in express words direct him
to do so. Beg. v. Cliffwd, 2 C. & K.
20^Platt.
Bie owner of works carried on
for his benefit by his agents and
fiervants, is liable to an indict-
ment for a nuisance, resulting from
the mode of carrjring on the busi-
ness, although such nuisance was
committed in opposition to his or-
4en», and without Ids knowledge,
the proceedings by indictment in
2
such case being criminal in form
only. Reg, v. Stephens^ 1 L. R. Q.
B. 702; 12 Jur., N. S. 961 ; 14 W.
R. 859; 35 L. J., Q. B. 251; 14 L.
T. N. S. 593.
2. Insane Persons,
89 4- 40 Geo, 3, c. 94; 56 Geo, 3,
c. 117 ; 1^2 Vict, c, 14, extended
bg S Sf 4 Vict. c. 54, and amended bg
27 ^ 28 Vict, c, 29.
Defense of Insanity^ — To justify
the acquittal of a prisoner indicted
for murder, on the ground of insan-
ity, the jury must be satisfied that
he was incapable of judging be-
tween right and wrong; and that,
at the time of committing the act,
he did not consider that it was an
offence against the laws of God and
nature. Rex v. Offord^ 5 C. & P.
1 68 — Lyndhurst.
If, to an indictment for treason
for attempting the life of the Sov-
ereign, by shooting at her Majesty,
the defence is insanity, the question
for the jury will be, whether the
prisoner was labouring under that
species of insanity which satisfies
them that he was quite unaware of
the nature, character, and conse-
quences of the act he was commit-
ting, or, in other words, whether he
was under the influence of a dis-
eased mind, and was really uncon-
scious at the time he was commit-
ting the act that it was a crime.
Reg, V. Oxford, 9 C. & P. 525—
Denman, Alderson, and Patteson.
Semble, that, notwithstanding a
18
PERSONS CAPABLE OF CRIMES.
party accused did an act which was
in itself criminal, under the influence
of an insane delusion, with a view
of repressing or avenging some sup-
posed grievance or injury, or of pro-
ducing some public benefit, he is
nevertheless punishable if he knew
at the time that he was acting con-
trary to law. MactMglUen*8 case^
10 C. & F. 200 ; 8 Scott, N. R. 595 ;
1 C. & K. 130.
If the accused was conscious that
the act was one which he ought not
to do, and if the act was at the
same time contrary to law, he is
punishable. In all cases of this
kind the jurors ought to be told,
that every man is presumed to be
sane, and to possess a suflicient de-
rof reason to be responsible for
crimes, imtil the contrary is
proved to their satisfaction; and
that, to establish a defence on the
ground of insanity, it must be clear-
ly proved that, at the time of com-
mitting the act, the party accused
was laboring under such a defect of
reason, from disease of the mind, as
not to know the nature and quality
of the act he was doing, or that what
he was doing was wrong. Ih.
A party labouring under a partial
delusion must be considered in the
same situation, as to responsibility,
as if the &cts, in respect ,to which
the delusion exists, were real. Ih
Where an accused person is sup-
posed to be insane, a medical man
who has been present in court apd
heard the evidence may be asked,
as a matter of science, whether the
facts stated by the witnesses, sup-
posing them to be true, show a state
of mmd incapable of distinguishing
between right and wrong. lb. ; §.
P. Bex V. Wright, R. & R. C. C. 456 ;
Rex V. Searle, 1 M. & Rob. 75.
To entitle a prisoner to be ac-
quitted on the ^ound of insanity he
must, at the time of the commit-
ting of the offence, have been so in-
sane that he did not know right from
wrong. Reg. v Mgginsan, 1 C. &
K. 129— Maule.
When the defence of insanity is
set up in order to warrant the jury
in acquitting the prisoner, it most
be proved affirmatively that he is
insane ; if the fact be left in doubt,
and if the crime charged in the indict-
ment is proved, it is their duty to
convict. Reg. v. Stokes, 3 C. d; K
185— Rolfe.
On a trial for murder, evidence
was called, on the prisoner's behalf,
to prove his insanity. A physician
who had been in court during the
whole trial was then called on the
part of the prosecution, and asked
whether, having heard the whole
evidence, he was of opinion that the
prisoner, at the time he committed
the alleged act, was of imeound
mind? Held, notwithstanding the
opinion of the judges in R%. r.
Macnaghten (supra), that sudi a
question ought not to be put, but
tbat the proper mode of examina-
tion was to take particular &cts,
and assuming them to be true, to
ask the witness whether, in his judg-
ment, they were indicative of in-
sanity on the part of the prisoner at
the time the alleged act was com-
mitted. Reg. V Frances, 4 Cox, C.
C. 57 — ^Alderson.
Where a prisoner sets up insanity
as a ground of defence, one cardinal
rule IS, that the burden of proving
his innocence on that ground rests
on the party accused. The question
in such a case for the jury is not
whether the prisoner was of sound
mind, but whether he has made out
to their satisfaction that he was not
of sound mind. The jury may come
to a conclusion on this poipt from
the conduct and acts of the accused
shortly before and down to the
commission of the alleged crime.
Although insanity on one point,
for instance — a delusion as to prop-
erty— will not exempt a party from
responsibility, the fact is not imma-
tenal in considering his responsibil-
ity at another time and on another
subject. The want of motive for
the commission of the crime, and
ESrSAN^E PERSONS.
19
its being committed under circum-
stances which render detection in-
eritable, are important points for
tiie oonaderation of the jury, when
coupled with evidence of insanity
on any particular point. Reg, v.
La^on, 4 Cox, C. C. 149— Rolfe.
To ask a witness whether, in his
opinion, the prisoner is capable of
judging between right and wrong,
is an improper question, for that is
vhat no witness thought of, or is
prepared to answer. lb,
A manied woman, having killed
her husband immediately after an
apparent recovery from a disease
(the result of childbirth) which
caused a great loss of blood, and
exhausted the vessels of the brain,
and thus so weakened its power and
so tended to produce insane delu-
sions of the senses, which, while
suffering under such disease, she
complamed of, and which, by her
own account, had been renewed at
the time of the act of homicide (al-
though they were not such as would
lead to it) ; — ^Held, evidence from
which a jury might properly find
that she was not m such a state of
mind at the time of the act as to
know its nature or be accountable
for it Reg. v. Law, 2 F. & F, 836
-Erie.
Where a married woman, fondly
attached to her children, and ap-
parently most happy in her family,
had poisoned two of them with
some evidence of deliberation and
design ; but it appeared that there
was insanity in her family ; and,
from her demeanor before and after
the act, which, although not wholly
nrational, yet was strangely eiTatic
and excited ; and from recent ante-
cedents, and the presence of certain
exciting causes oi insanity, and her
own account of her sensations, the
medical men were of opinion that
^e was labouring under actual cer-
ebral disease, and that she was in a
paroxysm of insanity at the time of
the act ; this was left to the jury as
evidence on which they might rightly
find her not guilty on the ground of
insanity. Reg, v. Vyse, 3 F. & F.
247— Wightman.
The delusions which indicate a
defect of sanity such as will relieve
a person from criminal responsibil-
ity, are delusions of the senses, or
such as relate to facts or objecta-^
not mere wrong notions or impres-
sions, or of a moral nature; and
the aberration must be mental, not
moral, to afiect the intellect of the
individual. It is not enough that
they show a diseased or a depraved
state of mind, or an aberration of
the moral feelings, the sense of right
and wrong being still, although it
may be perverted, yet not destroyed ;
and the theory of a moral insanity,
or insanity of the moral feelings,
while the sense of right and wrong
remains^ is not to be reconciled
with the legal doctrine on the sub-
ject. Reg, V. Barton, 3 F. & F. 772
— Wightman.
Where, upon a trial for murder,
the plea of insanity is set up, the
question for the jury is. Did the
prisoner do the act under a delu-
sion, believing it to be other than it
was ? If he knew what he was do-
ing, and that it was likely to cause
death, and was contrary to the law
of God and man, and that the law
directed that persons who did such
acts should be punished, he is guilty
of murder. Reg, v. Towrdey, 3 F.
& F. 839-Martm.
The circumstances of a person
having acted under an irresistible
influence to the commission of hom-
icide is no defence, if at the time he
committed the act he knew he was
doing what was wrong. Reg, v.
Hagnes, 1 F. & F. 666— Bramwell.
On a trial for murder, the defence
of insanity by the evidence showing
a great amount of senseless extrav-
agance and absurd eccentricity of
conduct, coupled with habits oi ex-
cessive intempemnce, causing fits of
delirium tremens, the prisoner, how-
ever, not having been labouring un-
der the effects of such a fi l%t the
20
PERSONS CAPABLE OF CRIMES.
time of the act, and the circum-
stances showing sense and delibera-
tion, and a perfect understanding of
the nature of the act : — ^Held, that
the evidence was not sufficient to
support the defence, as it rather
tended to show wilful excesses and
extreme folly than mental incapa-
city. Reg. V. Leigh, 4 F. & F. 915
—Erie.
A mere uncontrollable impulse of
the mind, co-existing with the full
possession of the reasoning powers,
will not warrant an acquittal on the
ground of insanity; the question for
the jury being, whether the prisoner,
at the time he committed the act,
knew the character and natui*e of
the .act, and that it was a wrongful
one. Reg, v. Barton, 3 Cox, C. C.
275— Parke.
Where a person is in a state of
mind in which she is liable to fits of
madness, it is for the jury to consider
whether the act done was during
such a fit, though there is nothing
before or after the act to indicate it,
and though there is some evidence
of design and malice. A medical
witness should give his opinion as to
the state of mind, not as to the
responsibility of the prisoner ; the
latter is for the jury under the direc-
tion of the judge. Reg. v. Rich-
ards, 1 F. & F. 87— Crowder.
On an indictment for maliciously
setting fire to a building, it is not
necessary to prove actual ill-will in
the prisoner towards the owner ; and
in order to justify a jury in acquit-
ting a prisoner on the ground of in-
sanity, they must believe that he
did not know right from Avrong ;
but if they find that the prisoner,
when he did the act, was in such a
state of mind that he was not con-
scious that the effect of it would be
to injure any otlier person : — Held,
that this will amount to a general
verdict of not guilty. Reg. v. Da-
vies, 1 F. <fc F. 69— Crompton.
^rrai9rnmew/.]— Where a bill had
been foimd ^against an insane pris-
oner for murder, and he had been
removed by order of the Secretary
of State to the County lunatic asy-
lum, and the governor of the asylum
had made an affidavit that lie was
in a hopeless state of insanity, the
court will nevertheless require that
he be brought up, and his alleged
insanity inquired into by a jury, un-
less it is shown that it w^ould be
dangerous to bring him into court,
and in that case the court will allow
the witnesses their costs, and bind
them over to appear w^hen called
upon. Reg. v. Dwerryhouse, 2 Cox,
Cf. C. 446— Patteson.
A party having been indicted for
a misdemeanor, of uttering seditious
words, and upon his arraignment
refusing to plead, and showing symp-
toms of insanity; and an inquest
being forthwitli taken under 39 k
40 Geo. 3, c. 94, s. 2, to try whether
he was insane or not : — Held, first,
that the jury might form their own
judgment of the present state of the
prisoner's mind from his demeanor
while the inquest was being taken ;
and might thereupon find him to be
insane, witliout any evidence being
given as to his present state. J&^.
V. Goode, 7 A. & E. 536.
Held, secondly, that, upon hl^^
showing strong symptoms of insan-
ity in court during the taking of the
inquest, it became unnecessary to
ask him whether he would cross-
examine the witnesses, or would
offer any remark on the evidence.
Ih.
A grand jury has no authority by
law to ignore a bill for murder on
the* ground of insanity ; it is thdr
duty to find the bill ; otherwise the
court cannot order the detention of
the party during the pleasure of the
crown, either on arraignment or
trial, under 39 & 40 Geo. 3, c. 94,
ss. 1 & 2. Reg. v. Hodges, 8 C. &
P. 195— Alderson.
The prisoner was indicted for
shooting at his wife with intent to
murder her, and was defended by
counsel, who set up for him the de-
fence of insanity. The prisoner,
DEAF AND DTDIB.
21
however, obje<5ted to such a defence,
asserting that he was not insane ;
and he was allowed by the judge to
suggest questions to be put by his
lorisMp to the witnesses for the
prosecution, to negative the supposi-
tion that he was insane ; and the
judge also, at the request of the
prisoner, allowed additional witnes-
es to be called on his behalf for the
same purpose. They, however, fail-
ed in shewing that the defence was
an bcorrect one ; and, on the con-
trary, their evidence tended to es-
tahtii^ it more clearly, and the
prisoner was acquitted on the ground
of insanity. Reg, v. Pearce^ 9 C. &
P. 667— feosanquet.
Where a jury is impanneled to
try whether a prisoner is insane or
not at the time when he is brought
up to plead to an indictment, the
counsel for the prosecution is to be-
gin and call his witnesses to prove
3ie sanitv of the prisoner. Reg, v.
Bociu, 6 Cox, C. C. 326 ; 3 C. & K.
32d-Williams. ^
But where a jury is impanneled,
at the instance of the counsel for a
prisoner, to try whether he is insane
or not at the time when brought up
to plead to an indictment, the proof
ofthe insanity is incumbent on his
counsel. Reg, v. Turion^ 6 Cox, C.
C. 385— Cresswell.
Commttment,'] — A commitment of
an insane person, under 39 & 40
Geo. 3, c. 94, s. 3, is not a commit-
ment in execution, and is not to be
construed with the same strictness.
Sexy, Gourlay, 7 B. & C. 669 ; 1 M.
k R. 619. But see 1 & 2 Vict.c. 14.
P^^)pe7fy.]— Under 3 & 4 Vict. c.
54, 8. 2, which for the repayment to
parishes or counties of expenses in-
curred in the maintenance of crimi-
nal lunatics, enables justices toorder
the overseers of any parish where
money, goods or chattels of the lu-
natic fihall be, to seize the money or
seixeand sell the goods and chat-
tels, justices cannot authorise the
overseers to levy a debt claimed to
be due to the lunatic by ordering
them to seize a sum of money in tlie
possession of the alleged debtor.
And on motion for a mandamus at
the instance of such overseers, call-
ing upon the alleged debtors to pay
them such money, the prosecutors
adducing evidence to shew that such
debt was due, and that the sum de-
manded was in the possession ofthe
alleged debtor, the court, on cause
shewn, refused a mandamus. Reg,
V. Longhom^ 17* Q. B. 77.
3. Deaf and Dumb,
A i)erson, deaf and dumb, was to
bo tned for a capital felony : the
judge ordered a jury to be impan-
neled, to try whether he was mute
by the visitation of God ; the jury
found that he was so. The j ury was
then sworn to try whether he was
able to plead, which they found in
the affirmative ; and the prisoner by
a sign pleaded not guilty. The judge
then ordei-ed the jury to be sworn to
try whether the prisoner was now
sane or not; and on the cjuestion, he
directed the jury to consider wheth-
er the prisoner had sufficient intel-
lect to comprehend the course ofthe
proceedings, so as to make a proj^er
defence, to challenge any juror he
might wish to object to, and to com-
prehend the details of the evidence ;
and that if they thought he had not,
they should find Ixim not of sane
mind. The jury did so, and the
judge ordered the prisoner to be
detained under 39 & 40 Geo. 3, c.
94, s. 2. Rex v. Pritchard, 7 C. &
P. 303-— Alderson.
A person deaf and dumb was to
be tried for a misdemeanor. A jury
was impamieled to try whether he
was mute by the visitation of God,
and on their finding that he was so,
they were sworn to try if he was of
sound mind, and on their finding
that he was so, his counsel pleadea
not guilty for him, and the trial
proceeded in the usual*manner, and
the evidence was not interpreted to
22
PERSONS CAPABLE OF CRIMES.
the prisoner. Req, v. Whitfield, 3
C. & K. 121— Williams.
4. Presumed Coercion of Wife,
A wife cannot commit larceny in
the company of her husband ; for it
is deemed his coercion, and not her
voluntary act ; yet, if she does it in
his absence, and by his mere com-
mand, she is then punishable as if
she was sole, and the husband, it is
said, may be accessory to the wife.
Anon., 2 East, P. C. 559.
The law, out of tenderness to the
wife, if a felony is committed in the
presence of the husband, raises a
presumption prima facie and prima
facie only, that it was done under
his coercion. JRex v. Hughes, 2 Le-
win, C. C. 229— Thompson.
A wife went from house to house
uttering base coin. Her husband
accompanied her, but remained out-
side : — ^Held, that the wife acted
under the husband^s coercion. Con-
oUy's case, 2 Lewin, C. C. 229—
Bayley.
A wife, by her husband's order
and procuration, but in his absence,
knowingly uttered a forged order
and certificate for the payment of
prize-money : — Held, that the pre-
sumption of coercion at the time of
uttering did not arise, as the lius-
band was absent ; and that the wife
might be convicted of the uttering,
ana the husband of procuring. Rex
V. Morris, R. & R. C. C. 270.
On an indictment against a mar-
ried woman for falsely swearing
herself to be next of kin, and pro-
curing administration : — Held, that
she might be guilty, although her
husband was with her when she
took the oath. Rex v. Dichs, 1
Russ. C. & M. 16.
In the case of Rex v. Archer, 1
M. C. C. 143, husband and ^fe
were jointly indicted for receiving
stolen goods, and both convicted : —
Held, tnat as the charge against the
husband and wife was joint, and it
had not been left to the jury to say
whether she received the goods in
the absence of the husband, the
conviction of the wife was wrong,
though she had been more active
than her husband.
If larceny is committed jointly
by husband and wife, the latter is
entitled to be acquitted, as she must
be presumed to be under his coer-
cion and control : and where she
was indicted as " the wife of A.,"
it is sufficient proof that she was so,
without adducing further evidence
to prove that fact. Rex v. Knight^
IC. & P. 116— Park.
Husband and wife were jointly
indicted for a misdemeanor in ut-
tering counterfeit coin : — ^Held, that
the wife was entitled to an acquit-
tal, as it appeared that she uttered
the money in the presence of her
husband. Rex v. Price, 8 C. <fe P.
19 — Park, Bosanquet and Coltman.
Where stolen goods are found in
a man's house, and his wife, in his
presence, makes a statement exon-
erating him, and criminating her-
self :— Semble, that, with resi)ect to
the admissibility of this statement
in evidence against her, it may be
a question whether the doctrine of
presumed coercion does not apply.
Rex V. Laugher, 2 C. & K. 225.
Where a woman is charged with
comforting, harbouring and assisting
a man who has committed a mur-
der, if the counsel for the prosecu-
tion has reason to believe that she
was married to the man, and it ap-
pears clearly that she considered
hereelf as his wife, and lived with
him as such for years, he will he
justified in not offering any evi-
dence against her, even though he
has also reason to believe that the
marriage was in some resijects irreg-
ular, and, probably, invalid. B^-
V. Good, 1 C. & K. 185— Aldei-son
and Coltman.
If husband and wife jointly com-
mit a murder, both are equally amen-
able to the criminal law, as the doc-
trine of presimied coercion of the
wife does not apply to murder. Reg*
V. Manning, 2 C. & K. 903.
DRUNKARDS— FOREIGNERS— CORPORATIONS.
23
Husband and wife were jointly
tried upon an indictment chaining
them with feloniously wounding,
with intent to disfigure. The jury
found that the wife, at the time of
the commission of the offense, acted
under the coercion of her husband,
and that she herself did not person-
ally inflict any violence: — ^Held,that
die could not be convicted. Reg, v.
SmUh, Deai-s. & B. C. C. 553 ; 4
Jut., N. S. 395 ; 27 L J., M. C.
204; 8 Cox, C. C. 27.
5. Drunkards,
Drunkenness is not, in law, any
excuse for crime. Pear8on*9 case^ 2
Lewin, C. C. 144— Park.
In case of stabbing where the
prisonei* has used a deadly weapon,
the fact that he was drunk does not
at all alter the nature of the case ;
but if he had intemi)erately used
an instrument, not in its nature a
deadly weapon, at a time when he
was drunk, the fact of his being
drunk might induce the jury to less
strongly infer a malicious intent in
him at the time. Rex v. Meahin^
7 C. & P. 297— Alderson.
If a man is drunk, this is no ex-
cuse for any ciime he may commit ;
but where provocation by a blow
has been given to a person, who
kills another with a weapon which
he happens to have in his hand, the
drunkenness of the prisoner may be
conridered on the question, whether
he was excited by passion, or acted
from malice ; as, also, it may be on
the question, whether expressions
used by the prisoner manifested a
deliberate pm'pose, or were merely
the idle expressions of a drunken
man. Rex v. Thomas^ 7 C. & P.
817-Parke.
Though drunkenness is no excuse
for crime, it may be taken into ac-
count by the jury, when consider^
ing the motive or intent of a person
acUng under its influence. Reg, v.
Gnai&n, 1 F. & F. 90— Crowder.
Where, on the trial of an indict-
ment for an attempt to commit sui-
cide, it appeared that the prisoner
was at the time of the alleged of-
fence so drunk that she did not
know what she did: — Held, that
this negatived the attempt to com-
mit suicide. Reg, v. Moore^ 3 C. &
K. 319; 16 Jur. 750— Jervis.
6. Foreigners,
A person naturalized in this coun-
try becomes, to all intents and pur-
poses, a Briti^ subject, and ceases
to be an alien. Reg, v. Manning^ 2
C. & K. 903 ; 13 Jur. 962 ; T. &
M. 155.
It is no defence on behalf of a
foreigner charged in England with
a cnme committed there, that he
did not know he was doing wrong,
the act not being an oflence in his
own country. But though it is not
a defence in law, yet it is a matter
to be considered in mitigation of
punishment. Rex v. Esop^ 1 C &
r. 456^Bo8anquet and Vaughan.
7. Garp<yrajHons.
A corporation must prosecute in
its corporate name. Rex v. Patrick,
1 Leach, C. C. 253.
A corporation aggregate may be
guilty of a misdemeanor by non-
feasance, such as the nonrepair of
bridges which it is their duty to
repair. Reg, v. Birmingham and
Gloucester Railway Co,, 3 Kailw.
Cas. 148; 2 G. & D. 236 ; 9 C. &
P. 469 ; 3 Q. B. 223 ; 6 Jur. 804.
In such a case an indictment is
maintainable against it in its cor-
porate name, ih,
IS indicted in the Queen's Bench,
they can appear by attorney ; but
if indicted at the assizes, or sessions,
where they cannot appear by attor-
ney, they should apply for a certio-
rari and appear by attorney, and
compel appearance by distress in-
finite. Reg. V. Birmingham and
Gloucester Railway Company, 9 C.
& P. 469— Parke. See S. C, 8 Q.
B. 223 ; 1 G. & D. 457 ; 5 Jur. 40.
An indictment will lie against a
corporation for a misfeasance at
24
PERSONS CAPABLE OF CRIMES.
common law. Reg, v. Great North
of Migland Railway Company^ 9 Q.
B. 315 ; 10 Jur. 755 ; 16 L. J., M.
C. 16.
An incoi*porated company de-
murred to a bill in equity, because
the discovery thereby sought might
subject it to criminal prosecution
under 59 Geo. 3, c. 69 (Foreign En-
listment Act) : — ^Held, that a corpo-
ration was not liable to be indicted
under that act, and the court over-
ruled the demurrer. 2\oo StciUes
(King) V. WiUcox, 1 Sim., N. S.
334 ; 14 Jur. 751 ; 19 L. J. Chanc.
488.
Where an indictment against a
corporation, for the non-repair of a
highway, is removed by certiorari,
at the instance of the prosecutor,
the prosecutor is not required by 16
& 17 Yict. c. 30, s. 5, to enter into
recognisances to pay the defendant's
costs in case of acquittal, indict-
ments against corporations being
excepted from the operation of the
act. Reg, v. Manchester (Mayor^
^c), 7 El. & Bl. 453 ; 3 Jur., N.
S. 839 ; 26 L. J., M. C. 65.
8, Infants,
"See 10 & 11 Yict. c. 82, and 13
"A 14 Vict. c. 37, for the speedy
" and summary trial, conviction and
"punishment of juvenile offenders;
" and as to the care and education
" of infants convicted of felony by
" the Court of Chancery, see 3 & 4
" Vict. c. 90."
An infant, under the age of seven
years, cannot incur the guilt of fel-
ony. Marsh v. Loader, 14 C. B.,
N. S. 535 ; 11 W. R. 784.
If a child, more than seven and
under fourteen years of age, is in-
dicted for felony, it will be left to
the jury to say whether the offence
was committed by him, and, if so,
whether, at the time of the offence,
the prisoner had a guilty knowledge
that he or she was doing wrong.
The presumption of law is, that a
child of that age has not such guilty
knowledge, unless the contrary is
proved. Rex v. Owen, 4 C. & P.
236— Littledale.
A boy who, at the time of the
commission of the offence of rape,
is under fourteen, cannot, in pomt
of law, be guilty of an assault with
intent to commit a rape ; and if he
is under that age, no evidence is
admissible to show that, in point of
fact, he could commit the offence.
Reg, V. PhiUips, 8 C. <fc P. 736—
Patteson ; aS'. P., Rex v. Groom-
bridge, 7 C. & P. 582— Gaselee.
A boy imder fourteen years of
age cannot, by law, be convicted
of feloniously carnally knowing and
abusing a girl under ten years old,
even though it was proved that he
was arrived at the full state of pu-
berty. Reg, V. Jordan, 9 C. <fc P.
118— Williams: S, P, Reg, v. Bri-
milow, 9 C. & P. 366 ; 2 M. C. C.
122.
A child under fourteen, indicted
for murder, must be proved con-
scious of the nature of the aot.
Reg. V. Vampiew, 3 F. & F. 520—
Pollock.
9. Peers,
[4 4-5 Vict, c, 22.]
10. Persons under Oompvhion,
An apprehension, though ever so
well grounded, of having property
wast^ or destroyed, or of suffering
any other mischief not endangering
the person, will afford no excuse for
joimng or continuing with rebels.
Rex V. M- Growther, 1 East, P. C.
71.
But it is otherwise if the party
joins from fear of death or by com-
pulsion. Rex V. Gordon, 1 East, P.
C. 71.
On an indictment on 7 & 8 Greo.
4, c. 30, s. 4, for breaking a thresh-
ing-machine, the judge allowed a
witness to be asked whether the
mob, by whom the machine was
broken, did not compel persons to
go with them, and then compel each
person to give one blow to the ma-
PRINCIPALS.
25
chine ; and also, at the time when
the prisoner and himself were forced
to jdn the mob, they did not agree
together to run away from the mob
the fiist opportunity. Hex v. Orutch-
Ay, 5 C. & P. 138.
A., who was insane, collected a
Bomber of persons together, who
armed themselves, having a com-
mon purpose of resisting the law-
Mv constituted authorities; A.
haying declared that he would
cut down any constable who came
against him. A., in the pi'esence of
C. and D., two of the persons of his
part}', afterwards shot an assistant
of a constable, who came to appre-
hend A under a warrant : — ^Held,
that C. and D. were guilty of mur-
der, as principals in the first degree,
and that any apprehension that C.
and D. had of personal danger to
themselves from A., was no ground
of defence for continuing with him
after he had so declared his pur-
pose; and also, that it was no
ground of defence that A. and his
party had no distinct or particular
object in view when they assembled
together and armed themselves.
Beg. V. Tyler, 8 C. & P. 616— Den-
man.
The apprehension of personal dan-
ger does not furnish any excuse for
assisting in doing any act which is
illegal. lb.
n. Principals, Accessoeibs and
Abettobs.
1. Principals, 25.
2. Accessories, 26.
3. Abettors, 2S.
4. Trial, 28.
5. Indictment, 2f .
6. Evidence, 30.
1. Principals.
If several are out for the purpose
of committing a felony, and upon
an alarm run different ways, and
one of them maims a pursuer to
avoid being taken, the others are
not to be considered principals in
such act. Hex v. White, R. & R.
If several act in concert to steal
a man's goods, and he is induced
by fraud to trust one of them in tlie
presence of the others with the pos-
session of the goods, and then an-
other of the party entices the owner
away, in order that the party who
has obtained possession of the goods
may carry them off, all will be guilty
of the felony ; the receipt by one,
under such circumstances, being a
felonious taking by all. Hex v.
Standley, R. & R. C. C. 305.
Going towards a place where a
felony is to be committed in order
to assist in carrying off the property,
and assisting accordingly, will not
make a man a principal, if he was
at such a distance at the time of the
felonious taking as not to be able
to assist in it. Rex v. Kelly, R. &
R. C. C. 421. ^
A person waiting outside of a
house to receive goods, which a con-
federate is stealing in the house, is
a principal in the theft. Rex v.
Owen, 1 M. C. 0. 96.
Where a prosecutor left his goods
in a cart standing in the street, and
M. came and led the cart away,
and having taken it a short distance,
delivered it to another man, with
directions to take it to his, M's,
house. Upon the cart arriving at
the house, S., who was at work in
the cellar, having directed a com-
panion to blow out the light, came
up and assisted in removing the
goods from the cart: — Held, that
b. could not be indicted as a princi-
pal. Rex V. M'Makin, R. & R. C.
C. 333, n. — Lawrence. And see
Rex V. Dyer, 2 East, P. C. 767.
All those who assemble them-
selves together, with an intent even
to commit a trespass, the execution
whereof causes a felony to be com-
mitted ; and continue together, abet-
ting one another, till they have act-
26
PRINCIPALS, ACCESSORIES, ETC.
ually put their design into execu-
tion; and also all those who are
present when a felony is commit-
ted, and abet the doing of it, are
principals in felony. Keg, v. How-
eU, 9 C. & P. 437— Littledale.
In misdemeanors all guilty par-
ticipators are principals. Reg, v.
Greenwood^ 16 Jur. c>90 ; 21 L. J.,
M. C. 127 ; 2 Den. C. C. 453.
• It is not sufficient to make a man
a principal in uttering a forged note,
that he came with the utterer to
the town where it was uttered, went
out with him from the inn where
they put up, joined him again in the
street after the uttering at a little
distance, and ran away when the
utterer was apprehended. Rex v.
Davis, R. <fc R. C. C. 113— Bayley.
If A. unlocks a door of a room of
which he has the key, in order to
allow B. to commit a larceny in it,
and A. then goes away, and B., in
his absence, enters the room and
removes articles out of it, A. is not
a principal in the larceny. Reg, v.
Jeffries, 3 Cox, C. C. 85 — Ci'e^swell.
A principal in the second degree
cannot at the same time be treated
as a receiver. Reg, v. Perkins, 2
Den. C. C. 459 ; 16 Jur. 481 ; 21 L.
J., M. C. 152; 5 Cox, C. C. 554.
To incite a servant to rob his
master is a misdemeanor at common
law ; and an incitement to steal any
silk that may be in the servant's
care, without further defining the
particular silk to be stolen, is suffici-
ently certain to support a conviction.
Reg, V. Quail, 4 F. & F. 1076—
Willes.
A soliciting and inciting a person
to commit an offence where no other
act is done except the soliciting and
inciting, is a misdemeanor only. Ih,
2. Accessories,
Before the Fact^^By 24 <fc 25
Vict. c. 94, s. I, "whosoever shall
" become an accessory before the
" fact to any felony, whether the
" same be a felony at common law,
" or by virtue of any act passed or to
" be passed, may be indicted, tried,
" convicted and punished in all re-
" spects as if he were a principal
"felon." {Former provision, 11 &
12 Yict. c. 46, s. 1.)
By s. 2, "whosoever shall coun-
" sel, procure or command any other
"person to commit any felony,
" whether the same be a felony at
" common law or by virtue of any
" act passed or to be passed, shall
"be guilty of felony, and may be
"indicted and convicted either as
" an accessory before the fact to the
" principal felony, together with the
^'principal felon, or after the con-
"viction of the principal felon, or
" may be indicted and convicted of
"a substantive felony whether the
"principal felon shall or shall not
"have been previously convicted,
" or shall or shall not be amenable
" to justice, and may thereupon be
"punished in the same manner as
"any accessory before the fact to
"the same felony, if convicted as
"an accessory, may be punished."
(Former provision, 7 Geo. 4, c. 64,
6. 9.)
A person is not to be convicted
of larceny if doubtful whether an
accessory before or after the fact
Reg. V. Munday, 2 F. & F. 170—
Byles.
A servant let a person into his
master's house on a Saturday after-
noon, and concealed him there all
night in order that he might rob the
house ; and on the Sunday morning
left the premises in pursuance of the
previous arrangement. The man,
in the servant's absence, broke into
the bed-room of the master, and
stole the contents of the cash-box :
— Held, that the man who took the
property from the cash-box was
rightly charged as a thief, and the
servant who let him into the house
as an accessory before the fact
Reg, V. TuckweU, Car. & M. 215—
Coleridge.
If a charge against an accessory
is, that the principal felony was
committed by persons unknown, it
ACCESSORIES.
27
is no objection that the same grand
jury has found, a bill imputing the
principal felony to J. S. Sex v.
mssh, R. & R. C. C. 872.
It is not essential that there should
have been any direct communica-
tion between an accessory before
the fact and the principal felon. It
is enough if the accessory directs an
intermediate agent to procure an-
other to commit a felony ; and it
will be Fuificient even if the acces-
sory does not name the person to
he procured, but merely directs the
agent to employ some person. Hex
V. Cooper, 5 C.'<fc P. 535—Parke.
The prisoner had procured certain
drags and gave them to his wife,
with intent that she should take
them in order to procure abortion.
She took them in his absence and
died from their effects. On an indict-
ment against him for manslaught-
er, it was objected that he was only
an accessory before the fact, and
that m law there cannot be an acces-
sory before the fact to manslaught-
er:—Held, that he was properly
found guilty of manslaughter. Heg.
V. %for, 7 Cox, C. C. 253 ; Dears.
& B. C. C. 288.
After the fact,]— By 24 & 25 Vict,
c. 94, R. 3, " whosoever shall become
"an accessory after the fact to any
"felony, whether the same be a
"felony at common law or by vir-
"tue of any act passed or to be
"passed, may be indicted and con-
"victed either as an accessory after
"the fact to the principal felony,
"together with the princiyial felon,
"or after the conviction of the prin-
"cipal felon, or may be indicted and
"convicted of a substantive felony,
"whether the principal felon shall
"or shall not have been previously
"convicted, or shall or shall not be
amenable to justice, and may
"thereupon be punished in like man-
"ner as any accessory after the fact
w the same felony, if convicted
'as an accessory, may be punish-
"€d." (Former pravigion, 11 & 12
Vict. c. 46, 8. 2.)
By s. 4, "every accessory after
the fact to any felony (except when
it is otherwise specially enacted),
whether the same be a felony at
common law or by virtue of any
act passed or to be passed, shall
be liable, at the discretion of the
court, to be imprisoned in the com-
mon gaol or house of correction
for any term not exceeding two
years, with or without hard labour,
and it shall be lawful for the court,
if it shall think fit, to require the
offender to enter into his own re-
cognizances and to find sureties,
both or either, for keeping the
peace, in addition to such punish-
ment; provided that no person
shall be imprisoned under this
clause, for not finding sureties,
for any period exceeding one
year."
H. & S. broke open a warehouse,
and stole thereout thirteen firkins
of butter, which they carried along
the street thirty yg^rds: they then
fetched the prisoner, who was ap-
prised of the robbery, and he assisted
in carrying away the property ; he
was indicted for theft : — Held, that
he was only an accessory, and not
a principal. Hex v. King, R. & R.
C. C. 332.
Where three ])ersons agi^eed to
utter a forged note, and one uttered
it at Gosport, and the other two, by
previous concert, waited at Ports-
mouth, they were held to be acces-
sories. Hex V. Soares, 2 East, P.
C. 974 ; R. & R. C. C. 25.
Although a statute which c.reates
a new felony will attach to that
felony all the' common-law incidents
to felony, so that accessories thereto
will be included, yet it will go no
further. Hex v. Sadi, 1 Leach, C.
C. 468 ; 2 East, P. C. 748.
An accessory after the fact to a
felony cannot be convicted upon an
indictment charging the commission
of the felony only : he should be
indicted as an accessory after the
fact. Heg, v. FaUon, 9 Cox, C. C.
242 ; L. & C. 217 ; 32 L. J., M. C.
28
PRINCIPALS, ACCESSORIES, ETC.
66 ; 8 Jur., N. S. 1217 ; 11 W. R.
74; 7 L. T., N. S. 471.
A. was indicted for the wilful
murder of B., and C. was indicted
for receiving, harbouring, and assist-
ing A., well knowing Siat he liad
committed the felony and murder
aforesaid : — Held, that if the offence
of A. was reduced to manslaughter,
C. might, notwithstanding, be found
guilty as accessory after the fact.
liex V. Greenacre^ 8 C. & P. 35 —
Tindal, Coleridge, Coltman, and Re-
corder Law.
Whei-e a person is charged as ac-
cessory after the fact to a murder,
the question for the jury is, whether
«uch person, knowing the offence
had been committed, was either as-
sisting the murderer to conceal the
death, or in any way enabling him
to evade the pursuit of justice. lb.
To substantiate the charge of har-
bouring a felon, it must be shewn
that the party charged did some act
to assist the felon personally. Heg.
V. Chappie, 9 C. & P. 355— Re-
corder I^w.
A prisoner who employed another
person to harbour the principal felons
may be convicted as accessory after
the fact, though he himself did no
act of relieving, and the prisoner
may be found guilty on the uncor-
roborated testimony of the person
who actually harboured. liex v.
Jarvis, 2 M, & Rob. 40 — Gur-
ney.
A., a lad who was a clerk in a
banking house, robbed his employ-
ers ; after doing so, he went to the
lodgings of B., who was much older
than hmiself, and who had relations
in America. A, stayed twenty min-
utes at B.'s lodgings ; and after that,
on the SMue night, A. and B. started
together by Uie coach, and went
from Reading to Liverpool, intend-
ing to embark for America : — Held,
that B. might be convicted as an
accessory after the fact, in harbour-
ing, receiving, and maintaining A.,
the principal felon. Hex v. £ee, 6
C. & P. 536— Williams.
((
u
3. Abettors.
In Felonies,] — If A. is charged
with the offence of inflicting an in-
jury dangerous to life, with intent
to murder, and B. is charged vnth
aiding and abetting him, it is essen-
tial to make out the charge as
against B., that B. should have
been aware of A.'s intention to
commit murder. Jieg, v. Ot««, 8
C. & P. 541— Patteson.
Persons present, aiding and abet-
ting, are principals in the second de-
gree, and are within the Riot Act,
Itex V. Hof/ce, 4 Burr. 2073.
In Misdemeanors,] — By 24 & 25
Vict. c. 94, s. 8, " whosoever shall
aid, abet, counsel, or procure the
commission of any nusdemeanor,
" whether the same be a misde-
" meanor at common law or by
" virtue of any act passed or to be
" passed, shall be liable to be tried,
" mdicted, and punished as a princi-
" pal offender." {Former provision,
7 <fc 8 Geo. 4, c. 30, s. 26.)
4. Trial.
By 24 & 25 Vict. c. 94, s. 5, "if
" any principal offender shall be in
" anywise convicted of any felony, it
" shall be lawful to proceed against
" any accessory, either before or af-
" ter the fact, in the same manner
" as if such principal felon had been
" attainted thereof, notmthstanding
" such principal felon shall die, or
" be pardoned, or otherwise deliv-
" ered before attainder ; and every
" such accessory shall upon convic-
" tion suffer the same jpunishmeut
" as he would have suffered if the
"principal had been attainted."
{jf'ormer provision, 7 Geo. 4, c. 64,
s. 11.)
By s. 6, " any number of acccs-
" sories at different times to any fel-
" ony, and any number of receivers
" at different times of property stol-
" en at one time, may be charged
" with substantive felonies in the
" same indictment, and may be tried
" together, notwithstanding the priii-
ETOICTMENT.
29
**cijal felon shall not be included
^^iu the same indictment, or shall
" not be in custody or amenable to
"jnstice." {Former provision^ 14
& 15 Vict. c. 100, 6. 15.)
By 5. 7, " where any felony shall
" have been wholly committed with-
" m England or Ireland, the offence
" of any person who shall be an ac-
" cesser}' either before or after the
"fact to any such felony may be
" dealt with, inquired of, tried, de-
"tennined, and punished by any
"court which shall have juiisdic-
" tion to try the principal felony, or
"any felonies committed in any
" county or place in which the act
"by reason whereof such person
" shall have become such accessory
"shall have been committed; and
"in every other case the offence of
" any person who shall be an acces-
" Bory either before or after the fact
" to any felony may be dealt with,
" mquired of, tried, determined, and
" punished by any court which shall
" have jurisdiction to try the prin-
" cipal felony, or any felonies com-
" mitted in any county or place in
" which such person shall be appre-
" hended or in custody, whether the
"principal felony shall have been
"committed on the sea or on the
" land,' or begun on the sea and
" completed on the land, or begun
" on the land and completed on the
" sea, and whether within her Maj-
"esty's dominions or without, or
"partly within her Majesty's do-
" minions and partly without ; pro-
" vided that no person who shall be
" once duly tried either as an acces-
" sory before or after the fact, or
"for a substantive felony, under
"the provisions hereinbefore con-
" tained, shall be liable to be after-
" wards prosecuted for the same of-
" fence." [Former provision^ 7 Geo.
4, c. 64, ss. 9, 10, 11 & 12 Vict. c.
46, 6. 2.)
Where a principal and an acces-
sory are indicted together, they will
not be allowed to sever in their chal-
lenges so as to be tried separately.
Reg. V. Fishm-, 3 Cox, C. C. 68—
Piatt.
An accessory after the fact in-
dicted in the ordinary way with the
principal felon, may, since 11 & 12
Vict. c. 46, s. 2, be tried before the
principal. Reg, v. IfcmsiU, 3 Cox,
C. C. 597.
Jurisdiction of AdmiraUyJ\ — ^By
9, " where any person shall, with-
in the jurisdiction of the admiralty
of £ngland or Ireland, become an
accessory to any felony, whether
the same be a felony at common
law or by virtue of any act passed
or to be passed, and whether such
felony shall be committed within
that jurisdiction or elsewhere, or
shall be begun within that juris-
diction and completed elsewhere,
or shall be begun elsewhere and
completed witibin that jurisdic-
tion, the offence of such person
shall be felony ; and in any mdict-
ment for any such offence the ven-
ue in the margin shall be the same
as if the offence had been commit-
ted in the county or place in
which such person shall be indict-
ed, and his offence shall be averred
to have been committed ' on the
high seas ; ' provided that nothing
herein contained shall alter or a?
feet any of the laws relating to
the government of her Majesty's
land or naval forces."
5. Indictment,
A count charging a person with
being accessory before the fact, may
be joined with a count charging him
with being accessory after the fact
to the same felony, and the prose-
cutor cannot be required to elect
upon which he will proceecji as the
party may be found guilty upon
both. Rex v. Machon^ 8 C. & P.
43 — Park and Patteson.
An indictment in two counts
charged A. and B. jointly with
stealmg. A third count charged
A. alone with receiving the stolen
goods. At the trial no evidence
S.
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u
u
u
it
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30
PRmCIPALS, ACCESSORIES, ETC.
was offered against B., and he was
acquitted, in order that he might
be called as a witness against A.
A. was an accessory before the fact
to the stealing by B., and he after-
wards received the stolen goods.
The jury returned a verdict of guilty
against A., whicli was entered upon
all the counts : — ^Held, that he was
not entitled to an acquittal upon the
first two counts by reason of the
principal, B., having been acquitted,
the 11 & 12 Vict. c. 46, s. 1, hav-
ing made the crime of being an ac-
cessory before the fact a substantive
felony. Reg, v. Hughes y Bell, C. C.
242 ; 8 Cox, C. C. 278 ; 6 Jur., N.
S. 177 ; 29 L. J., M. C. 71 ; 8 W. R.
195; 1 L. T., N. S. 450.
Held also, that there was no in-
consistency in the verdict found by
the jury, and entered upon all the
counts, and therefore the conviction
could be supported. Ih,
In indictmg a person for felony,
since 11 & 12 Yict. c. 46, it is im-
material whether he is a principal
in the first or the second degree, or
an accessory before the fact, as in
cither case he is indictable as a
principal. Reg. v. Manning^ 2 C.
& K. 903.
If two persons are indicted for
murder, the one as a principal in
the fii-st degree, and the other as
being present, aiding and assisting
to commit it, the jury may find the
principal in the first degree not
guilty, and convict the principal in
the second degree. Rex v. Taylor ^
1 Leach, C. C. 360; S, C, nom.
Shawns case, 1 East, P. C. 351.
Three persons were charged with
a larceny, and two others as acces-
sories, in separately receiving por-
tions of the stolen goods. The in-
dictment also contained two other
counts, one of them charging each
of the receivers separately with a
substantive felony, in separately re-
ceiving a jxjrtion of the stolen goods.
The principals were acquitted : —
Held, that the receivers might be
convicted on the two last counts of
the indictment. Reg. v. Ptdhamy 9
C. & P. 280— Gumey.
An indictment stated that a cer-
tain evil-disposed person stole cer-
tain goods ; that L. C. incited him
to do so; that E. C. did the same;
that E. M. received a portion of the
property, knowing it to have been
stolen; it also charged A. and
the before mentioned E. C. as re-
ceivers. All these persons having
been found guilty, the conviction
was held good against all except
L. C, who was merely charged as
accessory before the fact, and judg-
ment was given as to the charges of
receiving only. Reg. v. Caspar, 9
C. &P. 289: 2M. C. C. 101.
A count charged A. wifli the
murder of B., and also C. and D.
with being present, aiding and abet-
ting A. in the commission of the
murder. A was an insane person:
— Held, therefore, that C. and D.
could not be convicted on this
count. Reg. v. Tyler, 8 C. 4 P.
615 — Denman.
6. Evidence.
A person indicted as an accessory
before the fact, cannot be convicted
of that charge upon evidence prov-
ing him to have been present, aid-
ing and abetting. Rex v. Gordon,
1 Leach, C. C. 515 ; 1 East, P. C.
352.
An indictment against an acces-
sory to a felony, committed by a
person unknown, cannot be sup-
ported, if it appears tliat the princi-
pal felon acknowledged his guilt be-
fore the grand jury. Rex v. Walker,
8 Camp. 264— Le Blanc.
An accessory may controvert the
guilt of the principal, notwithstand-
mg tlie record of his conviction. Rex
V. Smitli, 1 Leach, C. C. 288.
An averment of the conviction of
the principal is supported by the
production of the record, however
erroneous the judgment niay be.
Rex V. Baldwin, 3 Camp, 265 —
Thompson.
On an indictment against an ac-
WOMEN.
31
cesBory, a confession by the princi-
pal is not admissible in evidence to
prove the guilt of the principal. JRex
T. l\tmer, 1 M. C; C. 347.
It must be proved aliunde, espe-
cially if the principal is alive. lb,
A. and B. were indicted for lar-
3iy as principals; A. had been sent
by his master to deliver goods to C.
He only delivered part, and the rest
was stolen, and found in the posses-
son of B.: — Held, that it was a
question for the jury whether B.
vas present at the time when A.
separated the stolen portion from
the bulk; for that if he was, both
were rightlv chars^ed as principals.
Eex v. Butteris, 6 C. & P. 147—
Gumey.
HL Abduction op Women and
Children.
1. Women, 31.
2. aUdren, 34,
3. Indictment, 35.^
4. Evidence, 35. '
1. Women.
By 24 & 25 Vict. c. 100, s. 53,
" where any woman of any age shall
" have any interest, whether fegal or
" eqnitable, present or future, abso-
" lute, conditional or contingent, in
"any real or personal estate, or
** shall be a presumptive heiress or
" oo-heiress, or presumptive next of
" kin, or one of the presumptive next
" of kin to any one having such in-
" terest, whosoever shall, from mo-
" tives of lucre, take away or detain
" 8uch woman against her will, with
" intent to marry or carnally know
" her, or to cause her to be married
"or carnally known by any other
"person;
"And whosoever shall fraudu-
"lently aUure, take away or detain
" mch woman, being under the age
"of twenty-one years, out of the
"possession and agaipst the will
"of her fether or mother, or of
" any other person having the law-
" ful care or charge of her, with in-
"tent to marry or carnally know
" her, or to cause her to be mamed
"or carnally known by any other
" person, shall be guilty of a felony,
" and, being convicted thereof, shall
" be liable, at the discretion of the
" court, to be kept in i^enal serv-
" itude for any term not exceeding
"fourteen years and not less than
" five years (27 & 28 Vict. c. 47),
"or to be imprisoned for any term
" not exceeding two years, with or
" without hard labour ;
"And whosoever shall be con-
" victed of any offence against this
" section shall be incapable of tak-
" ing any estate or interest, legal or
" equitable, in any real or personal
"proj)erty of such woman, or in
" which she shall have any such in-
" terest, or which shall come to her
" as such heiress, co-heiress or next
" of kin as aforesaid ; and if any
" such marriage as aforesaid shall
"have taken place, such property
" shall, upon such conviction, be set-
" tied in such manner as the Court
" of Chancery in England or L*eland
" shall upon any infoimation at the
" suit of the Attorney-General, ap-
" i)oint." {Previotis enactment, 9
Geo. 4, c. 31,8.*19.)
By s. 54, "whosoever shall by
" force take away or detain against
" her will any woman, of any age,
" with intent to marry or carnally
" know her, or to cause her to be
" married or carnally known by any
" other person, shall be guilty of a
" felony, and, being convicted there-
" of, shall be liable, at the discretion
" of the court, to be kept in penal
" servitude for any term not exceed-
"ing fourteen years, and not less
" than five years (27 & 28 Vict. c.
"47), or to be imprisoned for any
"term not exceeding two years,
" with or without liard labour."
f Former provision, JO Geo. 4, c. 34
Irish], s. 22, extended to England,)
By s. 55, "whosoever shall un-
82
ABDUCnON OP WOMEN.
" lawfully take or cause to be takeu
" any unmarried girl, being under
" the age of sixteen years, 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, shall be
" guilty of a misdemeanor, and, be-
" ing convicted thereof, shall be li-
" able, at the discretion of the court,
" to be imprisoned for any term not
" exceeding two years, with or with-
" out hard labour." {Similar to 9
Geo. 4, c. 31, s. 20.)
By 9 Geo. 4, c. 31, the 3 Edw. 1,
c. 13 ; 3 Hen. 7, c. 2 ; 39 Eliz. c. 9;
4 & 5 Ph. & M. c. 8 ; 1 Geo. 4, c.
115, and so much of 6 Ric. 2, st. 1,
c. 6, as related to this subject, were
repealed.
By 24 & 25 Vict. c. 95, the 9 Geo.
4, c. 31, ss. 19 and 20, and 7 Will. 4
& 1 Vict. c. 85, s. 11, are repealed.
Semble, that where a man by false
and fraudulent representations In-
duced the parents of a girl between
ten and eleven years of age to al-
low him to take her away, such tak-
ing away of the girl was an abduc-
tion within 9 Geo. 4, c. 31, s. 20.
Reg, V. Hopkins^ Car. & M. 254 —
Gumey.
A., a girl under sixteen, who was
in service, was, as she was return-
ing from an errancf, asked by B. if
she would go to London, as B's
mother wanted a servant, and would
give her 5^. wages. A. and B. went
away together to Bilston, where
both were found, and B. apprehend-
ed : — Held, that this was not such a
taking, or causing to be taken, of
A., as was sufficient to constitute
the offence of abduction under 9
Geo. 4, c. 31, s. 20. Heg, v. Mead-
ows, 1 C. & K. 399 ; Dears. C. C.
161, n.— Parke.
A girl under sixteen having by
persuasion been induced by the pris-
oner to leave her father's house, and
go away with him without the con-
sent of the father, left her home alone
by a preconcerted arrangement be-
tween them, and went to a place |
appointed, where she was met by
the prisoner, and then they went
away together some distance, with-
out the intention of returning :—
Held, first, that there was a taking
of the girl out of the father's pos-
session, within 9 Geo. 4, c. 31,&20,
by the prisoner when he met the
girl, and went away with her at the
appointed place, as iip to that mo-
ment she had not absolutely re-
nounced her father's protection.
JReg, V, ManklMow or Manktdow^
Dears. C. C. 159 ; 17 Jui-. 352 ; 22
L. J., M. C. 115 ; 6 Cox, C. C.
133.
Held, secondly, such taking need
not be by force, actual or construct-
ive, and it is immaterial whether
the girl consents or not. lb.
The case of jReg, v. Meadows (1 C.
& K. 399) explamed. lb.
A. went in the night to the honse
of B., and placed a ladder against a
window, and held it for J., the
daughter of B., to descend, which
she did, and then eloped with A,
J. was a girl under sixteen, viz ; fif-
teen years old : — Held, that this was
a taking of J. out of the jx)sse8sion
of her fether within 9 Geo. 4, c. 31,
s. 20, although J. had hei*self pro-
posed to A. to bring the ladder, and
to elope with him. Heg, v. Robins^
1. C. & K. 456— Tindal.
Held, also, that it was no defence
for A. that he did not know that J.
was imder sixteen, or that, from
her appearance, he might have
thought she was a greater age. lb.
On an indictment for abduc-
tion on 9 Geo. 4, c. 31, s. 19, tiie
jury ought not to convict the pris-
oner, unless satisfied that he com-
mitted the offence from motives of
lucre ; but evidence of expressions
used by him respecting the property
of the lady, such as his stating that
he had seen the will of one of her
relatives (naming him), and that
she would have 220^. a year, are
important for the consideration of
the jury, in coming to a conclusion
whether he was actuated by motives
WOMEN.
33
of here or not. Heg. v. Barratt, 9
C. & P. 387— Parke.
It was no answer to an indict-
ment ander 9 Geo. 4, c. 31, s. 20,
for taking away a girl under the a^e
of sixteen years, to show that the
girl alleged to be abducted went
voltmtanly from her home in conse-
quence of the persuasion of the pris-
(mer, to a place at some distance,
where she met the prisoner, and
whence she went away with him
without any reluctance. Heg, v.
Etpps, i Cox, G. C. 167.
On an indictment for taking an
unmarried girl under the age of six-
teen from the possession of her
father:— Held, that the statute was
satisfied, though the man and the
giri quitted the house together in
consequence of a proposition which
emanated from the girl herself to
that effect, and a statement by her
to the man that she intended to leave
her father's house. jRe^. v. BisweU,
2 Cox, C. C. 279— Alderson.
In order to constitute an offence
within 9 Geo. 4, c. 31 , s. 20, it is suf-
ficient, if, by moral force, a willing-
ness on the part of the girl to go
away with the prisoner is created ;
but if her going away with him is en-
tirely voluntary, no offence is com-
mitted. Reg. V. Handle, 1 F. & F.
648— Wightman.
A girl, under sixteen, who was
living in her father's house, was in-
duct by the prisoner to go to a
chapel and to be married to him.
She was only away from home for
an hour or two, and after her return
ooQtmued to live with her father as
before, he being ^orant of what
had taken place. The marriage was
never consummated: — Held, that
there was sufficient evidence of her
having been taken out of her Other's
pomession to satisfy 9 Geo. 4, c. 81,
a 20. Beg. v. BaiUie, 8 Cox, C. C.
238 — Chambers, C. S., and Gumey,
Recorder.
When a girl, under sixteen, has
been found m iJie streets by herself
and seduced away, that is not a tak-
FisH. Dig. — 3
ing out of the possession of the
father, even though he is living in
the place and she lives with him.
Reg. V. Green, 3 F. & F. 274—
Martin.
Where a person was indicted for
the abduction of a girl under six-
teen, and it did not ai)pear that he
had any improi>er motive, the jury
was directed tnat if they thought
he merely wished to have the child
to live with him, and honestly be-
lieved .that he had a right to the
custody of the child, although he
had no such right, they ought to
acquit him. Reg, v. Tinkler, 1 F,
& F. 513— Cockbum.
A. was convicted for taking an
unmarried girl, under sixteen, out
of the possession of her father, and
against his will. It was proved
that A. (who had previously stayed
out with the girl for a night), hav-
ing met her by arrangement, stayed
with her away from her father's
house for three days, sleeping with
her at night ; that he took her away
without her father's consent, and
against his will, in order to gratify
his passions, and then allow her to
return home, but not with a view
of keeping her away from her home
permanently: — Held, that the evi-
dence j ustified the conviction. Reg.
V. lYmmtwr, Bellf C. C. 276 ; 8 Cox,
C. C. 401 ; 30 L. J.,- M. C. 45 ; 6
Jur., N. S. 1309 ; 9 W. R. 36 ; 3
L. T., N. S. 337.
It is not necessary to shew a tres-
pass, or anything of that nature, in
the taking, other than the act of
taking. Reg. v. Frazier, 8 Cox, C.
C. 446— Pollock.
A. was indicted for fraudulently
alluring C. out of the possession of
her mother and stepfatner, the lat-
ter havmg the lawful care of her ;
and B. with being an accessory be-
fore the fact. C. was sent by her
mother to live with her grand-
mother. Instead of going there, she
went to B.'s house, and did not re-
turn home when desired to do so by
her mother. After remaining witli
34
ABDUCTION OF WOMEN, ETC.
B. a month, slie left with A., her pa-
ternal uncle, and was married to
him without her mother's knowl-
edge:— Held, that the averments
that the girl was in the possession
and under the care of her stepfather
might be rejected as surplusage.
Reg. V. BurreU, L. & C. 354; 12
W. R. 149; 9 L. T., N. S. 426;
33 L. J., M. C. 54; 9 Cox, C. C.
368.
Held, also, upon objection, that
there was no evidence that the al-
luring was fraudulent, or that the
girl was taken out of her mother's
possession, that the facts did not
support the indictment. Ih,
If a man, by previous promises
to a girl under sixteen, as to what
he will do if sjie will leave her par-
ents' house and go to live with him,
induces her at length to do so, and
then receives and harbours her se-
cretly, he is liable to be convicted
for taking her out of the possession
of her parents, even although he does
not meet her by any previous ar-
rangement and is not otherwise act-
ually a party to her act in leaving.
Reg. V. Rohb, 4 F. & F. 59— Pol-
lock.
On an indictment for unlawfully
taking away a ffirl against the will
of her parents, if they have encour-
aged her in 3 lax^course of life, the
case does not come within 9 Geo. 4,
c. 31, s. 90. Reg. v. PrimeU^ 1 F.
& F. 50— Cockburn.
A man dealing with an unmarried
girl does so at his peril ; and if she
turns out to be under sixteen, is
liable to be indicted for unlawfully
taking her away. Reg. v. OUifier^
10 Cox, C. C. 402— Bramwell.
A man is not bound to return
to her &ther's custody a girl who,
without any inducement on his
part, has left her home, and has
come to him ; but if, at any time,
he has attempted to induce her to
leave home without her parents'
consent, and flhe afterwards does so,
he is guilty dt the abduction of the
girl, even though he disapproves of
the act at the particular time at
which she gives effect to his previous
persuasions. Ih.
The prisoner met a girl under six-
teen years of age in the street and in-
duced her to go with him to a place
at some distance, where he seduced
her, and detained her for some
hours. He then took her back to
the street where he had met her,
and she returned home to ber
father's : — Held, in tlie absence of
any evidence that the prisoner knew
or had reason for knowing, or that
he believed that the girl was under
the care of her father at the time,
that the conviction under 24 <fe 25 ^
Vict. c. 100, s. bb^ could notbesufi-
tained. Reg. v. IIibbert,19,L.l.^
N. S. 799 ; 17 W. R. 384 ; 38 L. J.,
M. C. 61 ; 1 L. R., C. C. 184 ; 11
Cox, C. C. 246.
2. Children.
By 24 & 25 Vict. c. 100, s.
56, "whosoever shall unlawfully,
"either by force or fraud, lead or
"take away, or decoy or entice
" away or detain, any child under
" the age of fourteen years, with in-
" tent to deprive any parent, guar-
"dian or other person having the
" lawful care or charge of such child
" of the possession of such child, or
" with intent to steal any article up-
" on or about the person of sudi
" child, to whomsoever such article
" may belong, and whosoever shall,
" with any such intent, receive or
" harbour any such child, knowing
" the same to have been, by force
" or fraud, led, taken, decoyed, en-
" ticed away or detained, as in this
" section before mentioned, shall be
" guilty of felony, and, bein^ con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
"kept in penal servitude for any
"term not exceeding seven years,
" and not less than five years (27 A
" 28 Vict. c. 47), or to be impiison-
"ed for any term not exceeding
" two years, with or without hara
" labor, and, if a male under the
CHILDREN— INDICTOIENT— EVIDENCE.
35
" age of sixteen years, with or with-
" out whipping ; provided that no
"person who shall have claimed
"anv right to the possession of such
"child, or shall be the mother or
"shall have claimed to be the fa-
rther of an illegitimate child, shall
" be liable to be prosecuted by vir-
" tue hereof on account of the get-
"ting possession of such child, or
"taking such child out of the pos-
" session of any person having the
"lawful charge thereof." {Porm-
er provirian^ 9 Geo. 4, c. 31, s. 21,
rtpeakd Jy 24 & 25 Vict. c. 95.)
3. Indictment,
If, on an indictment for abduc-
tion on 9 Geo. 4, c. 31, s. 19, the jury
was not satisfied that tJie prisoner
was actuated by motives of lucre,
and they were satisfied that he used
force to the person of the lady in
taking her away, and that he took
her away against her consent, they
might convict him of an assault un-
der 7 Will. 4 & 1 Vict. c. 85, s. 11.
Seg. V. BarraU, 9 C. & P. 387—
Parke.
4. Evidence,
The wife is a witness as well for
IS against her husband, although
Ae has cohabited with him from
the day of the marriage. Rex v.
Perry, 1 Russ. C. & M. 949.
Wliere several defendants were
indicted for a misdemeanor in con-
^Hring to carry away a yoimg lady,
tmder the age of sixteen, from the
custody appointed by her father,
and to cause her to marry one of
^e defendants ; and, in another, for
conspiring to take her away by
force, being an heiress, and to many
her to one of the defendants : — Held,
that, assuming the young lad v to be
at the time the lawful wife of one of
the defendants, she was a compe-
tent witness for the prosecution, al-
though there was no evidence to
support that part of the indictment
which charged force. Rex v. Wake-
fieUt, 2 Lewin, C. C. 279.
A prisoner was taken into custody
at the house of his brother on a
charge of abduction ; when he was
taken, a letter was found in a writ-
ing-desk in the room in which he
and his brother were. The letter
was directed to a person in the
neighborhood of the prisoner's late
residence. The police-officer was
going to open it, when the prisoner
told him it had nothing to do with
the business that he had come
about: — Held, that the letter was
receivable in evidence on the trial
of the prisoner for the abduction.
Reg, V. Barratt, 9 C. & P. 387—
Parke.
On a prosecution on 3 Hen. 7, c.
2, it was essential that there should
be a continuance of the force into
the county where the defilement
took place. Rex v. Gordon, 1 Kuss.
C. & M. 943.
rV. Adulteration of Food or
Drixk.
1 . Selling Unwholesome Provisions^ 35
2. Engrossing or Regratingf 36.
1. Selling Unioholesome Provisions,
23 & 24 Vict. c. *84, " enacts
"penalties on persons selling arti-
" cles of food or drink, knowing the
" same to be injurious to health ;
" and see 11 & 12 Vict. c. 107, s. 3."
Victuallers, brewei-s and other
common dealers in victuals, who in
the course of their trade sell provis-
ions unfit for the food of man, are
criminally responsible under 51
Hen. 3, " Pillor' et Tumbrel' &c."
and of Edw. 1, "De Pistoribus et
Hasiatoribus et aliis VitellariLs," if
they do so knowingly, and proba-
bly if they even do not, and are lia-
ble civilly to the vendee without
any fraud on their part or warranty
of the soundness of the thing sold :
but a private person, not following
any of these trades, who sells an un-
wholesome article for food, is not
36
ABSON AND BURNING.
liable under such circumstances.
Bumbif V. BoUttt, 16 M. <fc W. 644;
11 Jur. 827 ; 17 L. J., Exch. 190.
A meat salesman can be indicted
at common law for knowingly send-
ing or exposing meat for sale in a
public market as fit for human food,
which, in fact, was not so. JReg. v.
Stevenson, 3 F. <fc F. 106— Willes.
So a carrier, for knowingly bring-
ing to market meat unfit for human
food. Heg. v. Jarvis, 3 F. ifc F.
108 — Gumey, Recorder.
But a person is not indictable for
sending to a meat salesman meat
he knows to be unfit for human
food, if he does not know and intend
that it is to be sold as human food.
Reg. V. Orawley, 3 F. <fc F. 109—
Willes.
Mixing alum with bread in such
manner as that crude lumps were
found in the bread, is indictable.
Rex V. IHxon, 3 M. & S. 11 ; 4
Camp. 12.
Indictment against a defendant,
who was employed to make bread
for the Military Asylum, which
charged that he delivered to J. H.
divers, to wit, 297 loaves, as and
for good household bread, for the
use and supply of the asylum and
the children belonging thereto,
whereas the loaves were not good
household bread, but contain^ di-
vers noxious and unwholesome ma-
terials not fit for the food of man,
is sufficiently certain, without shew-
ing what the noxious materials were,
or that the defendant intended to
injure the children's health. lb.
An indictment does not lie against
a miller for receiving good baney to
grind at his mill, and delivering a
mixture of oat and barley meal dif-
fering from the produce of the bar-
lev, and which is musty and un-
wholesome. Rex V. Haynee^ 4 M.
Sd S. 214.
Indictment against amiller, charg-
ing in the same count that he receiv-
ed two separate parcels of barley,
each of four bushels, to be ground
ftt his mill, and that he deuvered
three bushels 46 lbs of oat-meal and
barley-meal mixed, other and dif.
ferent than the produce of. the four
bushels, is ill, for the uncertainty to
which of the four bushels it relates.
Ih.
2. Bngromng or RegraHng.
The conmion-law offence of en-
grossing or regrating applied only
with respect to the necessaries of Ufa
Pettamoerdass v. Thachoorseydau^ 5
Moo. Ind. App. 109 ; 7 Moore, P.
C. C. 239 ; 15 Jur. 257 ; and 7 ife 8
Vict. c. 24, abolished the law of en-
grossing or regrating.
V. Abson and Bubneno.
1. Statutes, SB.
2. The Offence, 36.
3. Places of Divine WonMpy 37.
4. Dwelling-houses with Persons then-
in, 38.
5. What Houses or BuildinM,SS.
6. BailtDoy Stations and Btaldingt,
7. Public Buildings, ^, [40.
8. Other Buildinas, 40.
9. Property in Buildings, 41.
1 0. By Crunpowder and Explosive Stih
stances, 41.
11. Crops, Stacks or Woods, 42.
12. Coal and other Mines, 43.
13. Parties Indictable, 44.
14. Indictment, 44.
15. Evidence, 45.
1. Statutes.
TTiel &S Geo. 4, c. 27, repeaUd
23 Hen. 8, c. 1, 43 EUz. c. 13,22 &
23 Car. 2, c. 7, 9 Geo. 1, c. 22, (ike
Black Act), 9 Geo. 3, c. 29, and 52
Geo. 3, c. 180; and 9 Geo. 4, c. 81,
repealed 43 Geo. 3, c. 58 ; cmd 24 &
25 Vict. c. 95, repealed 7 & 8 Gea
4, c. 30, 7 Will. 4 & 1 Vict, c 89 ;
7*8 Vict. c. 62, and 9 & 10 Vict
c. 25.
24 <fc 25 Vict. c. 97, consoUdatet
and amends the statute law of Emg^
land and Ireland in relation to (kit
offence.
2. The Offence.
By 24 & 25 Vict. c. 97, s. 58,
" every punishment and forfeiture
PLACES OF DI\TNE WORSHIP.
37
" by tiie act imposed on any person
^ nialicioaslv committing the offence
"of burning or Betting fire, shall
"equally apply and be enforced,
" wnether the offence shall be com-
"mitted from malice conceived
" against the owner of the property
" in respect of which it snail be
" committed or otherwise."
By 8w 59, " the provisions of the
"act apply to every person who,
"with mtent to injure or defraud
" any other person, although the of-
" fender shall be in possession of the
" jHX)perty against or in respect of
" which such act shall be done."
The feloniously burning of a
* dwelling-house is arson at common
law; but the burning of an out-
house is a statutable felony. Hex v.
Nask, 2 East, P. C. 1021.
One entitled to dower only out of
a house, which was leased to an-
other, may commit arson by bum-
ii^ it Bex V. JHiarris, 2 East, P.
C. 1028.
If a person sets fire to a stack,
the fire from which is likely to and
which does communicate to a barn,
which is thereby burnt, the person
is indictable for burning the bam.
Rex V. Cooper^ 6 C. & P. 535 —
Parke.
To constitute a setting on fire it
is not necessary that any fiame
should be visible. Hex v. StaUton,
1 M. C. C. 398.
It was proved that the floor near
the hearth was scorched. It was
charred in a trifling way. It had
been at a red heat, but not in a
blaze :— Held, that this would be a
sufficient burning to support an in-
dictment for arson. Heg, v. Park-
w, 9 C. & P. 45— Parke and Bo-
sanquet.
One put by overseers of the poor
into a house to Uve there is merely
a servant, and his possession is theirs,
and therefore he may commit arson
by burning it. JRex v. Gowauy 2
East, P. C. 1027 : 1 Leach, C. C.
246.
Burning a man's own house con-
tiguous to others is a misdemeanor
at common law. Rex v. Ptohert^ 2
East, P. C. 1030 ; S. P, Rex v.
haac, 2 East, P. C. 1031.
A small faggot was set on fire on
the boarded floor of a room, and the
faggot was nearly consumed; the
boards of the floon were scorched
black, but not burnt, and no part
of the wood of the floor was con-
sumed : — Held, not a suflicient
burning to support an indictment
for arson. Reg, v. Russell^ Car. &
M. 541 — Cresswell.
Upon a trial for arson with intent
to defraud an insurance company,
evidence that the prisoner had made
claims on two other insurance com-
panies in respect of fires which had
occurred previously, and in succes-
sion, was admitted for the purpose
of showing that the fire which form-
ed the subject of the trial was the
result of design and not of accident.
Reg, V. Gray, 4 F. & F. 1102—
Willes.
An unfurnished structure intend-
ed to be used as a house, is not a
house within the meaning of the 24
& 25 Vict. c. 97, 8. 2. Reg. v. JBd-
geU, 11 Cox, C. C. 132— Lush.
3. Phzces of Divine Worship,
By 24 & 25 Vict. c. 97, s. 1,
" whosoever shall unlawfully and
" maliciously set fire to any church,
" chapel, meeting-house, or other
" place of divine worship, shall be
" guilty of felony, and, being oon-
" victed thereof, shall be liable, at
" the discretion of the court, to be
" kept in penal servitude for life, or
" for any term not less than five
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not
" exceeding two years, with or with-
" out hard labour, and with or with-
" out solitary confinement, and, if a
" male under the age of sixteen
" years, with or without whipping."
(Former enactment, 7 Will. 4 & 1
Vict. c. 89, 8. 3.)
38
ARSON AND BURNING.
4. DweUing-houses with Persons
therein.
By 24 & 45 Vict. c. 97, s. 2,
" whosoever shall unlawfully and
" maliciously set fire to any dwell-
" ing-house, any person being there-
" in, shall be guilty of felony, and,
" being convicted thereof, shall be
" liable, at the discretion of the
" court, to be kept in penal servi-
" tude for life, or for any term not
" less than five years (27 & 28 Vict.
" c. 47) ; or to be imprisoned for
" any term not exceeding two years,
" with or without hard labour, and
" with or without solitary confine-
" ment, and, if a male under six-
" teen, with or without whipping."
{^Previous enactment^ 7 Will. 4 & 1
Vict. c. 89, 8. 3, and was a capital
offence by s. 2.)
A. was indicted on this statute
for the capital offence of setting
fire to B.'s dwelling-house, B. being
therein. A. had set fire to an out-
house, under the same roof as the
dwelling-house, and the fire com-
municated to the dwelling-house
and burnt it. At the time that A.
set fire to the outhouse, B. was in
the dwelling-house, but had left it
before the fire reached the dwelling-
house : — Held, that the capital
charge could not be sustained, as
B. was not in the house at the time
it was on fire. Beg, v. Fletcher, 2
C. & K. 215— Patteson.
On an indictment on 7 Will. 4 &
1 Vict. c. 89, s. 2, for the capital of-
fence of setting fire to a dwelling-
house, some person being therem
(the indictment not charging any
intent to injure or defraud any per-
son), the prisoner could be convict-
ed of the transportable offence of
setting fire to the house, under sect.
3 ; as an allegation of an intent to
injure or defraud some person was
essential to an indictment under
that section. Iteg. v. Paice, 1 C. &
K. 73 ; S. P, Reg. v. Fhtcher, 2 C.
& K. 215.
The house set fire to must be a
dwelling-house, and a common gaol
occupied by none but prisoners \& not
a dwelling-house for this purpose.
Reg, V. Vonnor, 2 Cox, C. C. 65 —
Parke.
5." What Houses or Buildings,
By 24 & 25 Vict. ' c. 97, s. 3,
' whosoever shall unla^^'fully and
' maliciously set fire to any house,
' stable, coachhouse, outhonse,
' warehouse, oflice, shop, mill, malt-
* house, hop-oast, bam, storehouse,
* granary, hovel, shed, or fold, or
* to any farm building, or to any
' building or erection used in farm-
' ing land, or in carrying on any
* trade or manufacture, or any
* branch thereof, whether the same
' shall then be in the possession of
' the offender or in the possession of
* any other person, with intent
* thereby to injure or defraud any
' person, shall be guilty of felony,
' and, being convicted thereof, shall
' be liable, at the discretion of the
' court, to be kept in penal servi-
' tude for life, or for any term not
' less than five years (27 & 28 Vict
' c. 47) ; or to be imprisoned for
' any term not exceeding two years,
* with or without hard labour, and
* with or without solitary confine-
' ment, and, if a male under the age
' of sixteen years, with or without
' whipping." (Former provisionSy
7 Will. 4 & 1 Vict. c. 89, s. 3, and
7 &8 Vict. c. 62, s. 1.)
A conmion gaol was kept in re-
pair by rates levied upon the inhabit-
ants of the liberty in and for which
the gaol was. Tlie keejier of the
gaol was appointed by the justices
of the liberty. He did not reside
at the gaol, but kept the keys and
had the charge of it. He was also
an inhabitant, and liable to be rated
to the repair of the gaol ;-7Held,
that in an indictment under 7 <fc 8
Vict, c. 62, 8. 1 , for setting fire to the
gaol, it sliould be laid to be in the
possession of the keeper of the gaol,
but the intent of the prisoner should
have been laid to be to injure the
WHAT HOUSES OR BUHJ^INGS.
39
inhabitante of the liberty. Reg, v.
Comar, 2 Cox, C. C. 65— Parke.
A, was indicted for setting fire to
an out-house. The building set on
fire was a thatched pigsty, situate in
a yard in the possession of the pros-
ecutor, into which yard the back
door of his house opened, and which
yard was bounded by fences and by
other hmldings of the prosecutor,
and by a cottage and bam, which
were let by him to a tenant, but
which did not open into this yard :
—Held, that thispigsty was an out-
house within 7 Will. 4 & 1 Vict. c.
89, 8. 3. Reg, v. Jones or Janes^ 1
C. & K. 803 : 2 M. C. C. 308.
A building erected not for habit-
ation, but for workmen to take their
meals, and dry their clothes in,
which has four walls, a roof, a door,
but no window, but in which a per-
son slept with the knowledge, but
witliout the permission, of the own-
er, was not a house, the setting fire
to which was felony, wltliin 7 Will.
4 & 1 Vict. c. 89, s". 3. Reg. v. Eng-
land, 1 C. & K. 533--Tindal.
A. w^as indicted for having set fire
to a building twenty-four feet square,
the sides of which were composed of
wood, with glass windows ; it was
roofed, and was used by a gentle-
man, who built houses on his own
property, for the purpose of dispos-
ing of them, as a storehouse for sea-
soned timber, as a place of deposit
for tools, and as a place where tim-
ber was prepared for use: — Held,
that this was a shed, and also an
erection used in carrying on trade.
%. V. Amos, T. & M. 423 ; 2 Den.
C. C. 65 ; 15 Jur. 90 ; 20 L. J., M. C.
103 ; 5 Cox, C. C. 222.
Burning a stable is not supported
by proof of burning' a shed, which
has been built for and used as a sta-
ble originally, but has latterly been
used as a lumber shed only. Reg.
V. 0%, 2 M. & Rob. 475— Cress-
well.
A first count charged the firing
of a certain building used by O. for
carrying on his trade as a builder ;
and other counts laid the arson as
of a stable, an outhouse, and a stack
of haulm. It was proved that some
haulm had been cai-ted from a field
and stacked in a building originally
intended for a stable, but afterward
divided into three parts by i wall,
which reached only to the eaves.
One part was used as a stable, and
the part fired contauied the haulm
and a lot of tiles of the prosecutor,
who was a builder. The fire had
been kindled on the haulm : — Held,
fii-st, that the building was improp-
erly described as an outhouse, a
shed, or a stable. Reg. v. Afunson,
2 Cox, C. C. 186— Coleridge.
Held, secondly, that the count
charging an attempt to set fire to a
stack of haulm was suflicient, inas-
much as it is not necessary to the
character of a stack that it should
be erected out of doors. lb.
Held, thirdly, that it was a build-
ing used by the prosecutor in carry-
ing on his trade. lb.
A building which never had been
inhabited, but which was construct-
ed as and intended for a dwelling-
house, but which contained straw,
boards and implements of husband-
ry, was not a house, an outhouse, or
a barn within 9 Geo. 4, c. 22, s. 7.
Elsmore v. St. Briavels, 2 M. & R.
514 ; 8 B. & C. 461.
A building separated from the
house by a passage, used as a school-
room, but within the curtilage, was
an outhouse within 9 Geo. 1 , c. 22,
s. 1, although not of the ordinary
description of outhouses. Rex v.
Winter, R. & R. C. C 295.
A common gaol was a house
within 9 Geo. 1, c. 22. Rex v. Don-
nevan, 2 W. Bl. 682 ; 1 Leach, C.
C. 69 ; 2 East, P. C. 1021. But see
now Reg. v. Connor^ 2 Cox. C. C.
65— Parke.
A building had been built for an
oven to bake bricks, but afterwards
was roofed, and *a door put into it.
In this place the prosecutor kept a
cow ; adjoining to it, but not under
the same roo£ was a lean-to, in
40
ARSON AND BURNING.
which another person kept a horse.
Neither the prosecutor nor the per^
son of whom he rented this build-
ing, had any house or farm-yard
near it, nor did any wall connect it
with ^py dwellinff-house ; the near-
est dwelling being one hundred
yards off, and not belonging to eith-
er the prosecutor or his landlord : —
Held, that the building was neith-
er a stable or an out-house, and
that, if a person set it on fire (the
lean-to not being burnt), he was not
indictable for arson. Rex v. Haugh-
to?i, 5 C. & P. 555 — Taunton.
An open building in a field at a
distance from and out of sight of
the owner's house, though boarded
round and covered in, was not an
out-house within 7 & 8 Geo. 4, c. 30,
s. 2. Rex V. ^Utson, 1 M. C. C. 336.
Setting fire to paper only in a
drying loft belonging to a p&per-
mill, no part of which was burnt,
was not setting fire to an out-house
within 9 Geo. 1, c. 22. Rexy. Tay-
lor, 1 Leach, C. C. 49 ; 2 East, P. C.
1820.
An open shed in a farm-yard,
composed of upright posts support-
ing pieces of wood laid across them,
and covered with straw as a roof,
was an out-house within 7 & 8 Greo.
4, c. 30, s. 2. Rex v. Stallion, 1 M.
I-/. O. ti9o.
A cart hovel, consisting of a stub-
ble roof, supported by uprights, in
a field at a distance from other
buildhigs, was not an out -house
within 7 & 8 Geo. 4, c. 30, s. 2.
Rex V. ParroU, 6 C. & P. 402—
Vaughan.
6. Railway Stations and Buildings.
By 24 & 25 Vict. c. 97, s. 4,
"whosoever shall unlawfully and
" maliciously set fire to any station,
" engine-house, warehouse, or other
"building belonging or appertain-
" ing to any railw^, port, dock, or
" harbor, or to any canal or other
" navigation, shall be guilty of fel-
" ony, and, being convicted thereof,
" shall be liable, at the discretion of j
"the court, to be kept in penal
" servitude for life, or for any term
"not less tha*^ five years (27 <fc 28
"Vict. c. 47); or to be imprisoned
"for any term not exceedmg two
" years, with or without hard labour,
" and, if a male under sixteen, with
"or without whipping." (Farmer
provisio7i,li & 15 Vict. c. 19,8. 8.)
7. PubUc Buildings,
By s. 5, " whosoever shall unlaw-
fully and maliciously set fire to
any building, other than such as
are in this act before mentioned,
belonging to the Queen, or to any
county, riding, division, city, bor-
ough, poor-law union, parish, or
place, or belonging to any uni-
versity, or college, or hall of any
university, or to any inn of court,
or devoted or dedicated to public
use or ornament, or erected or
maintained by public subscription
or contribution, shall be guilty of
felony, and, being convicted there-
of, shall be liable, at the discretion
of the court, to be kept in penal
servitude for life, or for any term
not less than five years (27 ifc 28
Vict. c. 47); or to be imprisoned
for any term not 'exceeding two
years, with or without hard labour,
and, if a male under sixteen, with
or without whipping."
8. Other Buildings,
By 24 & 25 Vict. c. 97, s. 6,
whosoever shall unlawfully and
maliciously set fire to any build-
ing other than such as are in this
act before mentioned, shall be
guilty of felony, and, being con-
victed thereof, shall be liable, at
the discretion of the court, to be
kept in penal servitude for any
term not exceeding fourteen years,
and not less than five years (27 &
28 Vict. c. 47); or to be impris-
oned for any term not exceeding
two years, with or without hara
labour, and, if a male under six-
teen, with or without whipping."
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PROPERTY m BUILDINGS.
41
9. Property in Buildings,
By K 7, "whosoever sliall unlaw-
"itijiv and maliciously set fire to
^aoy matter or thing, being in,
"against, or under any building,
"under such circumstances that if
"the building were thereby set fire
"to, the ofience would amount to
"felony, shall be guilty of felony,
"and, being convicted thereof, shall
"he liable, at the discretion of the
"court, to be kept in penal servi-
"tude for any term not exceeding
"fourteen and not less than five
"years (27 & 28 Vict. c. 47); or to
"be imprisoned for any term not
"exceeding two years, with or with-
"out hard labour, and, if a male un-
"der sixteen, with or without whip-
Japing. (Former provistofis, 7 & 8
Vict. c. 62, s. 2, and 14 & 15 Vict,
c. 19, s. 8.)
A person who maliciously set fire
to Ws own goods in his own house
with intent, by burning the goods,
to defraud an insurance company,,
hut did not set fire to the house,
might be convicted of felony under
an indictment framed upon 14 & 15
Vict c. 19, 8. 8, and 7 Will. 4 & 1
Vict. c. 89, 8. 8. Iteff, v. Lyons^
Bell, C. C. 38; 5 Jur., N. S. 23;
28 L J., M. C. 33 ; 7 V7. R. 58 ;
32 L. T. 150 ; 8 Cox, C. C. 84.
By 8. 8, " whosoever shall unlaw-
" fully and maliciously, by any overt
"act, attempt to set fire to any
"building, or any matter or thing
"in the last preceding section men-
**tioned, under such circumstances
"that if the same were thereby set
"fire to, the offender would be
"guilty of felony, shall be girflty
"of felony, and being convicted
"thereof s5iall be liable, at the dis-
"cretion of the court, to be kept in
"penal servitude for any term not
"exceedmg fourteen and not less
I* than five years (27 & 28 Vict. c.
"47); or to be imprisoned for any
"term not exceeding two years,
"with or without hard labour, and
"with or without soUtarv confine-
inent, and, if a male under six-
"teen, with or without whipping."
(Former provision^ 7 & 8 Vict. c. 25,
s. 7.)
Wilfully throwing a light into a
postoffice letter-box m a house with
the intention of burning the letters,
but not the house, is not a felony
within 24 & 25 Vict. c. 97, ss. 7, 8.
Reg. V. BaUtone^ 10 Cox, C. C. 20
— Williams.
10. By Gunpowder and .Explosive
Suhstances.
By 24 & 25 Vict. c. 97, s. 9,
"whosoever shall unlawfully and
"maliciously, by the explosion of
"gimpowder or other explosive sub-
" stance, destroy, throw down, or
" damage the whole or any part of
"any dwelling-house, any person
"being therein, or of any building
"whereby the life of any j^erson
"shall be endangered, shall be
"guilty of felony, and, being con-
"victed thereof, shall be liable, at
" the discretion of tlie court, to be
" kept in penal servitude for life, or
"for any term not less than five
"years (27 <fc 28 Vict. c. 47); or to
"be imprisoned for any term not
" exceeding two years, with or with-
" out hard labour, and with or with-
"out solitary confinement, and, if a
"male under sixteen, with or with-
" out whippinjy." (Previous provis-
sion, 9 & 10 Vict. c. 25, ss. 1, 2.)
Tins enactment was intended to
apply to malicious injuries to houses
by throwing explosive substances
against or into them, with intent to
destroy them or iniure the inmates,
and not to cases of wanton mischief
or assault. Beg, v. Brown, 3 F. &
F. 821— Martin.
By s. 10, "whosoever shall un-
" lawfully and maliciously place
"or throw in, into, upon, under,
"against, or near any building, any
"gunpowder or other explosive sub-
" stance, with intent to destroy or
"damage any building, or any en-
"gine, machinery, working tools,
" fixtures, goods, or chattels, shall,
" whether or not any explosion take
42
ARSON AND BURNING.
((
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'* place, and whether or not any
"damage be caused, be guilty of
"felony, and, being convicted there-
"of, shall be liable, at the discretion
"of the court, to be kept in penal
servitude for any term not exceed-
ing fourteen and not less than five
" years (27 & 28 Vict. c. 47); or to
"be imprisoned for any term not
"exceeding two •years, with or with-
"out hard labour, and with or with-
" out solitary confinement, and, if a
"male under sixteen, with or with-
" out whipping." (Previous provis-
ion, 9 & 10 Vict. c. 25, s. 6.)
In order to support an indictment
imder 24 & 25 Vict. c. 97, s. 10,
for throwing gunpowder against a
house with intent to damage, it is
not enough to show simply that
gunpowder or other explosive sub-
stance was thrown against the house;
but it must also be shown that the
substance was in a condition to ex-
plode at the time it was thrown,
although no actual explosion should
result. Iteg, v. Sheppard, 19 L. T.,
N. S. 19; 11 Cox, C. C. 802—
Kelly.
11. Crops, Stacks, or Woods,
By 24 & 25 Vict. c. 97, s. 16,
whosoever shall unlawfully and
maliciously set fire to any crop of
^^y? grass, com, grain, or pulse,
or 01 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, shall be guilty of fel-
ony, and, being convicted thereof,
shall be liable, at the discretion of
the court, to be kept in j^enal serv-
itude for any term not exceeding
fourteen years and not less than
five years (27 & 28 Vict. c. 47);
or to be imprisoned for any term
not exceeding two years, with or
without hard labour, and with or
without solitary confinement, and,
if a male under sixteen, with or
without whipping." (Previous
it
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provision, 7 & 8 Geo. 4, c. 30, s. 17.)
By 8. 17, " whosoever shall un-
lawfully and maliciously set fire
to any stack of com, grain, pulse,
tares, hay, sti*aw, 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, shall be guilty of
felony, and, being convicted there-
of, shall be liable, at the discre-
tion of the court, to be kept in
penal servitude for life, or for any
term not less than five years (27
& 28 Vict. c. 47); or to be im-
prisoned for any term not exceed-
ing two yeai's, with or without
hard labour, and with or without
solitary confinement, and, if a
male under sixteen, with ox with-
out whipping." {Previous enact-
ment, 7 Will. 4 & 1 Vict. c. 89,
s. 10.)
By 8. 18, " whosoever shall un*
lawfully and maliciously, by any
overt act, attempt to set fire to
any such matter or thing as m
either of the last two preceding
sections mentioned, under such
circumstances that if the same
were thereby set fire to, the of-
fender would be, under either of
such sections, guilty of felony,
shall be guilty of felony, and, be-
ing convicted thereof, shall be lia-
ble, at the discretion of the court,
to be kept in penal servitude for
any term not exceeding seven and
not less than five years (27 & 28
Vict. o. 47); or to be imprisoned
for any term not exceeding two
years, witbor without hard labour,
and with or wdthout solitary con-
finement, and, if a male under
sixteen, with or without whip-
ping." {Former statute, 9 & 10
Vict. c. 25, s. 7.)
Setting fire to a parcel of uu-
threshed wheat was not a felony
within 9 Geo. 1, c. 22. Bex v,
Judd, 2 T. R. 255 ; 1 Leach, C. C.
484; 2 East, P. C. 1018.
Sedge and rushes were not straw
COAL AND OTHER MESTES.
43
within 7 Will. 4 & 1 Vict. c. 89,
which was confined to the straw of
wheat, oats, barley and rye. Meg,
V. BMock, 2 Cox, C. C. 55.
A. and B. were convicted for un-
lawfully and maliciously setting fire
to a stack of grain. The stack was
of the flax plant, with the seed or
min in it, and the jury found that
uie flax seed is a gram : — ^Held, that
the stack was a stack of grain with-
in 7 Will 4 & 1 Vict. c. 89, s. 10.
Reg, V. Spencer^ Dears. & B. C. C.
181; 2 Jur., N. S. 1512 ; 26 L. J.,
M.C. 16; 7 Cox, C. C. 189.
It was a sufficient overt act to
render a person liable to be found
guilty of attempting to set fire to
a stack, under 9 ifc 10 Vict. c. 25,
8w 7, if he went to the stack with
the intention of setting fire to it
and lighted a lucifer match for
that purpose, but abandoned the
attempt because he found that he
was being watched. Reg. v. Toy-
fcr, 1 F. & F. 511— Pollock.
A stack, of which the lower part
consulted of cole-seed straw, and the
upper part of wheat stubble, was
not a stack of straw ; and the set-
ting it on fire was not therefore a
capital ofiense within 7 & 8 Geo. 4,
c 29, 8. 17. Rex v. Tottenham^ 7
C. & P. 237 — Denman and Gaselee.
Setting fire to a score of faggots
which w'ere piled one upon another
in a loft, which was made by means
of a temporary floor put over an
archway roofed in between two
houses, and under which carts could
go, was not setting fire to a stack
of wood within 7 & 8 Geo. 4, c. 30,
& 17. Rex V. Arts, 6 C. & P. 348
-Park.
A count charged an attempt to
wt fire to a stack of haulm. It
was proved that some haulm had
been carted from a field, and stacked
in a building originally intended for
a stable, but afterwards divided into
tliree parts by a wall, which reached
only to the eaves, one part was used
as a stable, and the part fired con-
tained the haulm ana a lot of tiles :
— Held, that the count was suffi-
cient, inasmuch as it is not necessary
to the character of a stack that it
should be erected out of doors.
Reg, V. Munson, 2 Cox, C. C. 186
— Coleridge.
A. and JB. were charged with set-
ting fire to a wood. They set fire
to a summer-house which was in
the wood, and frcfm the summer-
house the fire was communicated to
the wood : — Held, that they might
be convicted on this indictment.
Reg, V. Price, 9 C. & P. 729—
Gumey.
12. Coal and Other Mines.
By 24 & 25 Vict. c. 97, s. 26,
" whosoever shall unla^vfully and
" maliciously set fire to any mine
" of coal, cannel coal, anthracite,
" or other mineral fuel, shall be
" guilty of felony, and being con-
" victed thereof shall be liable, at
" the discretion of the court, to be
" kept in penal servitude for life or
" for any term not less than five
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any tei-m not
" excee^ng two years, with or with-
" out hard labour, and with or with-
" out solitary confinement, and, if
" a male under sixteen, with or
" without whipping." (Former pro-
vision, 7 Will. 4 & 1 Vict. c. 89,
s. 9.)
By s. 27, " whosoever shall un-
' lawfully and maliciously by any
'pvert act attempt to set fire to
' any mine, under such circum-
' stances that if the mine were
'thereby set fire to, the ofiender
'would be guilty of felony, shall
' be guilty of felony, and being
' convicted thereof shall be liable,
' at the discretion of the court, to
' be kept in i)enal servitude for any
' term not exceeding fourteen and
' not less than five years (27 & 28
' Vict. c. 47), or to be imprisoned
' for any term not exceeding two
' years, with or without hard labour,
' and with or without solitary con-
' finement, and, if a male under
44
ARSON AND BURNING.
"sixteen, with or without whip-
*' ping." {Farmer provition^ 9 & 10
Vict c. 25, 8. 7.)
13. Parties Indictable,
A wife was not indictable under
7 & 8 Geo. 4, c. 30, s. 2, for setting
fire to her husband's house with in-
tent to injure him ; as it is essential
that there should be an intent to
injure or defraud some third per-
son, and not one identified with
herself. Rex v. March^ 1 M. C. C.
182.
If A. counsels and encourages B.
to set fire to a malthouse, and B.
attempts to set it on fire, both may
be jointly indicted as pi'incipals for
the misdemeanor of attempting to
set the malthouse on fire, although
A. was not present at the time of
the attempt. Meg. v. Clayton^ 1 C.
& K. 128— Williams.
On an indictment for maliciously
setting fire to a building, it is not
necessary to prove actual ill-will in
the prisoner towards the owner; and
in order to justify a jury in acquit-
ting a prisoner on the ground of in-
sanity, they must believe that he
did not know right from wrong ;
but if they find that the prisoner,
when he did the act, was in a state
of mind that he was not conscious
that the effect of it would be to in-
jure any other person, that will
amount to a general verdict of not
guilty. Meg. v. Davies^ 1 F. & F.
69 — Crompton.
14. Indictment.
By 24 & 25 Vict. c. 97, s. 60, « it
" shall be sufficient in any indict-
" ment for any offence against the
" act, where it shall be necessary to
" allege an intent to injure or de-
" fraud, to allege that the party ac-
" cused did the act with intent to
" injure or defraud, as the case may
" be, without alleging an intent to
'* injure or defraud any particular
" person, and on the trial of any such
" offence, it shall not be necessary to
" prove an intent to injure or de-
" fraud any particular person, but it
^' shall be sufficient to prove that
"the party accused did the act
" charged with an intent to injure
" or defraud, as the case may be."
It must appear upon the face of
an indictment for arson that the
house was that of another; and
it must state whose house, and with
that the proof should agree. Rex
v.i2tc*maw,2Ea6t,P.C.1034. And
see Mex v. Glandjield, 2 East, P.
C. 1034.
An indictment for setting fire to
an out-house was good, though
it might have, in point of law,
formed part of the dwelling-houfie,
the burning of which was arson at
common law. Mex v. North, 2 East,
P. C. 1021.
A house, in part of which a man
lives, and other parts of which he
lets to lodgers, may be described,
in an indictment for setting fire to
it, as his house, though he has taken
the benefit of the insolvent debtors'
act, and executed an assignment
including the house, if the assignee
has not taken possession ; at least,
no objection can be made, if in other
counts it is stated as the house of
the assignee, and in others of the
lodger whose room was set fire to.
Mex V. BaU, 1 M. C. C. 30.
A prisoner was convicted on an
indictment for setting fire with in-
tent to injure A. B. The property
fired belonged to A. B. The jury
found the intent to injure C. D. :—
Conviction held good. Mex r.
NetnU, 1 M. C. C. 458.
So an indictment under 7 & 8 •
Geo. 4, c. 30, s. 17, for setting fire
to a stack of straw, was good, with-
out stating any intent to mjure. lb.
It was not necessary to aver in an
indictment on 9 Geo. 1 , c. 22, for
setting fire to a hay-stack, that the
stack ** was thereby burnt." Mei
V. Salmon, R. & R. C. G. 26.
In an indictment on 9 Geo. 1, c.
22, for setting fire to a hay-stack, it
was no answer to the charge that
EVIDENCE.
45
the piifioner had no malice or spite
to the owner of the stack. Ih.
An indictment for setting fire to
a barge, the property of another,
ooght to contain an averment that
it was done with an intent to injure
the owner. Rex v. Smithy 4 C. <fc
P. 569— Gaseiee^nd Alderson. Sed
quaere, eee Bex v. Nevnlly 1 M. C. C.
458, and 24 & 25 Vict. c. 97, s. 60.
On an indictment for setting fire
to a mill, with intent to injure the
oocapiere thereof: — Held, that an
injury to the mill being the neces-
Bary consequence of setting fire to
it, the intent to injure might be in-
ferred ; for a man must be supposed
to intend the necessary consequence
of his own act. Bex v. Famngtotiy
R. & R. C. C. 207.-
An indictment on 7 ife 8 Geo. 4,
c. 30, S8. 2 and 17, for setting fire to
a bam and a stack of straw, charged
the offences to have been committed
" feloniously, volimtarily and mal-
idously," instead of " feloniously,
Qnlawmlly and maliciously," was
bad. Bex v. Reader^ 4 C. & P.
245; IM. C. C. 239.
The prisoners had set fire to a
stack of stubble (which, in Cam-
bridgeshire, is called haulm); they
were indicted on a first indictment
for setting fire to a stack of straw :
—Held, that this was not straw.
And, on their being again indicted
for setting fire to a stack of straw
called haulm, the judge intimated
that to convict upon such a count
would not be safe ; and the verdict,
b consequence, was taken upon
other counts, charging the setting
fire to a bam and a wheat stack.
Ih,
On an indictment for setting fire
to a stack of beans, a mistake as to
the name of the place where the
offence was committed is immaterial ;
the charge is transitory, not local,
itec V. Woodward, 1 M. C. C. 323.
Upon a statute which made it
capital to set fire to a stack of pulse,
it was sufficient to state that the
prisoner set fire to a stack of beans.
The judges will take notice that
beans are pulse. lb.
An indictment on 7 & 8 Geo. 4,
c. 80, s. 17, charged a party with
setting fire to a stack of barley, of
the value of 100/., of K. P. W. was
good, although the words of the
statute creatmg the offence were
" any stack of com or grain." Bex
\.Swaikins,4:C. & P. 548— Pat-
teson.
Held, also, that if the indictment
stated '' that the prisoner felonious-
ly, unlawfully and maliciously did
set fire to a certain stack of barley,
ofthevalueoflOO/., of R. P. W.,
then and there being,*' this is suffi-
cient, without stating that the pris-
oner feloniously, unlawfully and
maliciously did then and there set
fire to the stack. Ih.
15. Evidence.
Notice to produce Policy.'] — On an
indictment for arson on the prosecu-
tion of an insurance company, their
books are not evidence of the insur-
ance, without notice to produce the
policy. Bex v. Doran, 1 Esp. 127
— Kenyon.
A prisoner tried at the assizes for
arson, on Wednesday, the 20th of
March, was on Monday, the 18th,
served at the prison with a notice
to produce a policy of insurance.
The commission day was Friday,
the 15th, and the prisoner's home
was ten miles from the assize town :
— Held, that the notice was served
too late. Bex v. Emcomhe, 5 C. &
P. 522; 1 M. & Rob. 260— Little-
dale.
Notice to produce policies of in-
surance, served on the prisoner's at-
torney on Tuesday evening, the
prisoner then in Maidstone, the pol-
icies being twenty miles off, and the
trial taking place on Thursday, is
sufficient. Meg. v. Barker, 1 F. &
F. 326— Bramwell.
Upon an indictment for arson,
with intent to defiraud an insurance
company, the nature of the proceed-
ings does not give notice to the pris-
46
ASSAULT AND BATTERY.
oner to produce the policy, so as to
dispense with actual notice to pro-
duce it. lieq, V. Kitson, Dears. C.
C. 187 ; 17 Jur. 422 ; 22 L. J., M.
C. 118.
Commission of Act — Motives and
Intent,'] — A. was indicted for wilful-
ly setting fire to a rick by firing a
fun close to it on the 29th of
larch : evidence that the rick was
also on fire on the 28th of March,
and that A. was then close to it,
having a gun in his hand, is receiv-
able to shew that the fire on the
29th was not accidental. Heg. v.
Dossett, 2 C. & K. 306 ; 2 Cox, C.
C. 243— Maule.
On an indictment for arson in set-
ting fire to a rick, the property of
A., evidence may be given of the
prisoner's presence and demeanor
at fires of other ricks, the property
respectively of B. and C, occumng
the same night, although those fires
are the subject of other indictments
against the prisoner, such evidence
being important to explain his
movements and general conduct be-
fore and after the fire of A.'s rick ;
but evidence is not admissible of
threats, of statements, or of particu-
lar acts, pointing alone to other in-
dictments, and not tending to im-
plicate or explain the conduct of the
prisoner in reference to that fire.
lieg. V. Tai/lor, 5 Cox, C. C. 138—
Patteson.
Under an indictment for arson,
where the prisoner is charged with
wilfully setting fire to her master's
house, the previous and abortive at-
tempts to set fire to different por-
tions of the same premises are ad-
missible, though there is no evidence
to connect the prisoner with either
of them. Beg, v. Bailey^ 2 Cox, C.
C. 311.
Upon an indictment for arson,
with intent to injure the person in
occupation of the premises, the pris-
oner may be found guilty, although
his intent is proved to have been to
obtain a reward for giving the ear-
liest intimation of a fire at the en-
OTie station. Reg. v. JRegan, 4 Cox,
Upon such an indictment it is not
competent for the prosecutors to
shew that other fires, of which
notice was given by the prisoner,
were of a similar nature to the one
in question, and dftferent from those
of which notice was given by other
parties. lb.
On an indictment for arson, one
count laying an intent to defraud,
and it being opened for the prose-
cution that the motive Aight have
been to realise the money insured
by the prisoner upon her goods;
evidence was received that she was
in easy circumstances, with a view
to shew that she was at all events
mider no pecuiliary temptation to
commit such an act. Jieg. v. Granty
4 F. & F. 322— Pollock.
On a charge of arson (the case
turning on identity) evidence was
rejected that, a few days previously
to the fire, another building: of the
prosecutor's was found on tire, and
the prisoner was seen standing by,
with a demeanor which shewed in-
difference or gratification. Meg, v.
Harris, 4 F. <fc F. 342— Willes.
VI. Assault and Battery.
1. Common^ 47.
2. On Clergi/men or Ministers of Re-
ligion, 49.
3. On Magistrates or other Permns
preserving Wrecks, 49.
4. On Pi ace and other Officers in Ex-
ecution ofDut^, 49. [52.
5. On Seamen, Kedmen or Casters^
6. On obstructing Sale of Grain or id
free Passage, 52.
7. Arising from Trade Cominnaiioas
or Conspiracies , 52. [52.
8. Occasioning actual Bodily harm,
9. Indictment and Evidence, 53.
10. Punishment, 54.
1 1 . Costs of Prosecution, 54.
12. Summary Convictions, 54.
(a) Statute, 54. [56.
(b) Complainant or Informant,
(c) Hearing and Certifioate, 56.
(d) Aggravated upon Women and
Children, 57.
(e) Amounting to Felony, 58.
(f ) Fines, 58.
COMMON,
47
13. Indecent and with Intent to ravish
— See Rape, Abuse and De-
filement ov womsn and
Childrbk.
14. With Intent to rob-^See Bob-
BBBT.
1. Common.
To support a 'charge of assault,
sncl) an assault must be shewn as
could not be justified if an action
^■as brought for it, and leave and
licence pleaded. Meff. v. Meredith,
8 C. & P. 589— Abinger.
If a perft>n presents a pistol, pur-
porting to be a loaded pistol, at an-
other, and so near as to have been
dangerous to life if the pistol had
gone off; semble, that this is an as-
sault, even though the pistol was, in
fcct,not loaded. Reg. v. St. George,
9 C. & P. 483— Parke. But see
Bhke V. Barnard, 9 C. & P. 626—
Abinger.
A. presented a loaded pistol at
B., but was prevented from pulling
the trigger: — Held, that A. could
be properly convicted of this as-
sault, on an indictment for felon-
iously attempting to discharge load-
ed arms at B. lb.
Making a female patient strip
naked, under the pretence that the
defendant, a medical man, cannot
otherwise judge of her illness, is, if
he himself takes oft' her clothes, an
assault. Bex v. Bosinski, 1 M. C.
C.19.
If a schoolmaster takes indecent
h'berties with a female scholar, with-
out her consent, though she does
not resist, he is liable to be punished
Jttfor a common assault. Bex v.
i^HR.&R. C.C.I 30.
If parish oflicers cut oft* the hair
of a pauper in the poor-house by
force, and against the will of such
pauper, this is an assault; and if it
be done as matter of degradation,
tod not with a view to cleanliness,
that will be an aggravation, and go
to increase the damages. Forde v.
^imer, 4 C. & P. 239— Bayley.
If one has an idiot brother who
is bed-ridden in his house, and
keeps him in a dark room without
sufficient warmth or clothing, this
will not be an assault or an mipris-
onment, nor will proof of this sup-
port an indictment for an assault or
an imprisonment. Bex v. Smith, 2
C. & P. 449— Burrough.
B. was indicted, with three others,
for an assault with intent to do some
grievous bodily harm. It was
proved that he, with the other pris-
oners, had assaulted the prosecutor,
and afterwards they had returned
together and picked up some stones.
Then B. withdrew, and the other
prisoners threw the stones and
wounded the prosecutor. The jury
found the three prisoners who threw
the stones guilty of the felony, and
B. guilty only of a common assault :
— Held, that B. was rightly con-
victed. Beg. V. PhiUips, 3 Cox, C.
C. 225.
A. was advancing in a threaten-
ing attitude, with an intention to
strike B., so that his blow would
have almost immediately reached
B., ifhe had not been stopped: —
Held, that it was an assault in point
of law, though, at the particular mo-
ment when A. was stopped, he was
not near enough for his blow to take
efiect. Stephens v. Myers, A C &
P. 349— Tindal.
If one man strikes another a blow,
that other has a right to defend
himself, and strike a blow in his de-
fence, but he has no right to revenge
himself; and if, when all the dan-
ger is past, he strikes a blow not
necessary, he commits an assault
and a batterv. Beg. v. DriscoU,
Car. & M. 214— Coleridge.
If two go out to stnke one an-
other, and do so, it is an assault in
both, and it is quite immaterial who
strikes the first blow. Beg. v. Lewis,
1 C. & K. 419— Coleridge.
Three boys under fourteen had
connection with a girl, aged nine ;
they were indicted for an assault ;
the jury found them guilty, the child
being an assenting party, but that
from her tender years she did not
48
ASSAULT AND BATTERY.
know what she was about : — Held,
that this was not an assault, and
that the conviction was wrong. Reg.
V. Read, 2 C. &. K. 957 ; 1 Den. C.
C. 377 ; T. & M. 52 ; 3 New Sess.
Cas. 405 ; 13 Jur. 68 ; 18 L. J., M.
C. 88.
It is an assault to point a loaded
pistol at any one ; but not an assault
to point a pistol at another which
is proved not to be so loaded as to
be able to be discharged. Reg. v.
James, 1 C. & K, 530— Tindal.
Attempting to carnally know and
abuse a girl between the ages often
and twelve is not an assaiSt, if the
girl consents to all that is done, but
18 a misdemeanor. Reg, v. Martin,
9 C. & P. 213; 2 M. C. C. 123;
S, P., Reg, V. Johnson, L. & C.
632 ; 10 Cox, C. C. 114.
The person making such attempt,
with the consent of the girl, is not
indictable for an assault, but is in-
dictable for the misdemeanor of
attempting to commit the misde-
meanor of camaUy knowing and
abusing her. lb.; S. P., Reg. v.
Neale, 35 L. J., M. C. 60.
Where a medical practitioner had
sexual connection with a female pa-
tient of the age of fourteen, who
had for some time been receiving
medical treatment from him : —
Held, that he was guilty of an
assault, the jury having found that
she was ignorant of the nature of
his act, and made no resistance,
solely from a bona fide belief that
he was (as he represented) treating
her medically, with a view to her.
cure. Reg v. Case, T. & M. 818 ;
1 Den. C. C. 580; 4 New Sess.
Cas. 347; 14 Jur. 489 ; 19 L. J.,
M. C. 174 ; 4 Cox, C. C. 220.
Where a master of a union in-
ilicts personal chastisement on a
female pauper in an indecent man-
ner, he 18 guilty of an assault, even
though the extent of the correction
is within the limits of moderation.
Reg. V. Miles, 6 Jur. 243 — Gumey.
A. put cantharides into rum, and
gave it to B. to drink ; B. drank it,
not knowing that the cantharides
was in the rum, and became ill :—
Held, that A. was neither indictable
for an assault, nor for a misdemean-
or at common law. Reg. v. JJor-
son, 2 C. & K. 912— Williams;
S. P., Reg. V. Walkden, 1 Cox, C.
C. 282 ; Reg. v, Dilworth, 2 M. 4
Rob. 531.
C. was delivered of a child at the
house at which A. and B. resided,
they telling her that the child was
to be taken to an institution to be
nursed. A. & B. tool% the child,
and put it into a bag, and hung it
on some park-palins s at the side of
a foot-path, and there left it: —
Held, that this was an assault on
the child. Reg. v. March, 1 C. A
K. 496~Tindal.
If a party is turning towards the
wall in the street, at night, for a
particular occasion, a watchman is
not justified in collaring him to pre-
vent him so doing. Jxoth v. Ban-
leg, 2 C. & P. 288. See 2 & 3
Vict. c. 47.
A party struck at jubly strike again,
to prevent a repetition. Anon.^l Le-
win, C. C. 48— Parke.
A person may, under particular
circumstances, justify laying hands
on another in order to serve him
with process. Harrison v. Hodg-
son, 10 B. & C. 445 ; 5 M. <fc R.
392.
A police constable is not justified
under 10 Geo. 4, c. 44, s. 7, in lay-
ing hold of, pushing along the high-
way, and ordering to be off, a person
found by him conversing in a crowd
with another, merely because the
person with whom he happens to
be conversing is known to be a re-
puted thief. Stocken v. Carter, 4 C.
So P. 477 — Gaselee. See 2 & 3
Vict. c. 47.
Upon an indictment under 24 k
25 Vict. c. 100, 8. 20, for unlawfully
and maliciously woimding or infiictp
ing grievous bodily harm, a verdict
for a common assault may be return-
ed. Reg. V. Taylor, Reg. v. Cowwdi,
20 L. T., N. S. 402 ; 17 W. R. 623;
CLERGYMEN— JVIAGBTRATES, ETC.
49
11 Coi, C. C. 261 ; 4 L. R., C. C.
194.
On an indictment for a felonious
aficanlt, the jnry being unable to
i^ree as to the felonious intent, were
dnebarged by arrangement, in order
that the prisoner might plead guilty
to a common assault with a view to
compensation. Beg, v. Maxburgh^
12 Cox, C. C. 8.
2. On Clergymen or Ministers of
Iteligion,
By 24 & 25 Vict. c. 100, s.
36, " vhoeoeyer shall, by threats or
" force, obstruct or prevent, or en-
** deavor to obstruct or prevent, any
" clersmnan or otlier minister in or
"fifom celebrating divme 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
" b any churchyard or other burial-
** placed or shall strike or offer any
"riolence to, or shall, upon any
"civil process, or under the pre-
" tence of executing any civil pro-
"cess, arrest any clergyman or
"other minister who is engaged in,
"or to the knowledge of the offend-
" er is about to engage in, any of
"the rights or duties in this section
"aforesaid, or who to the knowl-
"edge of the offender shall be go-
**iBg to perform tlie same, or re-
" taming from the performance
"thereof, shall be guilty of a mis-
" demeanor, and, being convicted
"thereof^ shall be liable, at the dis-
" cretion of the court, to be impris-
" oned for any term not exceeding
"two years, with or without hard
"labour."
An indictment charging that the
defendant, in a churchyard, inter-
rupted and obstructed W. C, clerk,
in reading the order for the burial
of the dead and interring a corpse,
snd unlawfully, and by threats and
menaces, hindered the burial of the
corpse, is bad in arrest of judg-
nwnt, for not averring that W . C.
Pisn. Dig.— 4
was a clerk in holy orders, and law-
fully acting as such in the burial of
the corpse, and for not setting out
the particular threats and menaces
used. Hex v. Cheere, 7 D. & R.
461 ; 4 B. & C. 902.
3. On Magistrates or other Persons
in Preserving Wrecks.
By 24 & 25 Vict. c. 100, s. 87,
whosoever shall assault and strike
or wound any niagistrate, officer
or other person whatsoever law-
fully authorized, in or on account
of the exercise of his duty in or
concerning the preservation of any
vessel in distress, or of any vessel,
goods or effects wrecked, strand-
ed or cast on shore, or lying under
water, shall be guilty of a mis-
demeanor, and, being convicted
thereof, shall be liable, at the dis-
cretion of the court, to be kept in
penal servitude for any term not
exceeding seven years, and not
less than five years (27 & 28
Vict. c. 47), or to be imprisoned
for any term not exceeding two
years, with or without hard la-
bour."
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4. On Peace and other Officers in
Execution of Duty.
By 24 & 25 Vict. c. 100, s. 38,
" whosoever shall assault any per-
" son with intent to commit felony,
" or shall assault, resist or wilfully
" obstruct any peace officer in the
" due execution of his duty, or any
" person acting in aid of such offi-
" cer, or shall assault any person
" with intent to resist or prevent
"the lawful apprehension or de-
" tainer of himself or of any other
"person for any offence, shall be
" guilty of a misdemeanor, and, be-
" ing convicted thereof, shall be lia-
" ble, at the discretion of the court,
" to be imprisoned for any term not
" exceeding two years, with or with-
" out hard labour."
By 32 & 38 Vict, c, 99, s. 12,
" where any person is convicted
"of an assault and battery on
.50
ASSAULT AND BATTERY.
* any constable, or police, or peace
* officer when in the execution
* of his duty, such person shall
' on summary conviction before
* two or more justices, or one stip-
* endiary magistrate, be liable either
'to pay a penalty not exceeding
' 20/., and in default of payment to
' be imprisoned for a term not ex-
' ceeding six months, or, in the dis-
* cretion of the court, to be im-
' prisoned for any term not exceed-
'mg six months, with or without
* hard labour."
A constable and his assistants
who take a bailiff into custody
during an affray to rescue his pris-
oner, m which fiie bailiff struck one
of the assailants, and the prisoner
was rescued, are guilty of an as-
sault and a rescue, as the bailiff was
authorized by his warrant. Anon.^
1 East, P. C. 305— Heath.
One of the marshals of the city
of London, whose duty it was, on
the day of a public meeting at
Guildhall, to see that a passage was
kept for the transit to their car-
riages of the members of the cor-
poration and others, directed a per-
son in the front of a crowd at the
entrance to stand back, and, on be-
ing told by him that he could not
for those behind him, struck hifh
immediately on the face, saying
that he would make him : — ^Held,
that in so doing the marshal ex-
ceeded his authority, and that he
should have confined himself to the
use of pressure, and should have
waited a short time to afford an op-
portunity for removing the party in
a more peaceable way. Imason v.
Cope, 5 C. & P. 193--Tindal.
An innkeeper, having an escaped
felon in his house, to the policemen,
who had remarked, " You scoun-
drel, how dare you harbour a fel-
on ?" said " You had better go and
find him ;" but he did nothing, and
the poUcemen went up stairs and
saw the felon make his escape from
the window, is no evidence of an
obstructing of the felon's apprehen-
sion. Meg, V. Green^ 8 Cox, C. C.
441 — ^Blackburn.
A. was indicted for assaulting a
policeman in the execution of liis
duty. It appeared that the police-
man had gone into a public-house
where the defendant was having
high words with the landlady. The
defendant tried to go into a room
in the house in which a gu^ was,
and the policeman, without bebs
desired to do so, collared him, and
prevented him from going into the
room, and A. struck the policeman,
and several blows passed on both
sides : — Held, that if the jury was
satisfied that no breach of the peace
was likely to be committed by the
defendant on the guest in the room,
it was no part of the policeman's
duty to prevent the defendant from
entering it ; but, assuming that to
be so, if the defendant iised more
violence than was necessary to re-
pel the assault committed on him
by the policeman, the defendant
would be liable to be convicted of
a common assault. Heg, v. Mahdj
9 C. & P. 474— Parke.
A constable (out of the limits of
the Metropolitan Acts) when he is
clearing a public-house, is not act-
ing in the execution of his du'7 un-
less there is a nuisance or a disturb-
ance of the peace. lieg. v. iVcMfe,
1 F. & F. 325— Bramwell.
A. committed an assault upon a
constable, who, two hours after-
wards, having obtained assistance,
and when there was no danger of
any renewal of the assault, attempt-
ed, to apprehend him, and was
wounded in the attempt : — Held,
that his apprehension at that time
was unlawful ; and that he was im-
properly convicted of wounding the
constable with intent to prevent his
lawful apprehension. Heg. v. ITait-
er, 6 Cox, C. C. 871 ; 23 L. J., M.
C. 123.
A police constable, whilst stand-
ing outside the defendant's house,
saw him take up a shovel and hold
it in a threatening attitude over his
PEACE AND OTHER OFFICERS.
51
wife's head, and heard him say at
the same time, " If it was not for
the policeman outside, I would split
yoor head open." In about twenty
nmmtes' time the defendant left his
house, after saying that he would
leave bis wife altogether, and was
taken into custody by the constable,
irho bad no warrant, when he had
proceeded a short distance in the
direction of his father'^ residence ;
he resisted the constable, and was
tried and convicted upon an indict-
ment chaiging him with assaulting
the constable whilst in the execu-
tion of his duty : — ^Held, that the
constable was justified In appre-
hending the defendant, and that the
conviction therefore was right. Bjtg.
V. UgU, Dears. & B. C. C. 332 ; 7
Cox, C. C. 389 ; 3 Jur., N. S. 1130;
27L.J.,M.C. 1.
An indictment against a person
for refuang to aid and assist a con-
stable m ttie execution of his duty,
and prevent an assault made upon
him by prisoners in his custody on
a charge of felony, with intent to
resist their lawful apprehension, is
sufficient, without stating how the
aj^rehension became lawful ; and
it 18 enough if it states a refusal to
assist, without the further allega-
tion that he did not, in fact, aid and
asast Reg, v. Sherlock^ 10 Cox,
C.C.170; 1 L. R., C. C. 20; 12
Jur., N. S. 126 ; 35 L. J., M. C.
92 ; 14 W. R. 288; 13 L. T., N. S.
623.
D. was indicted for assaulting a
sub-bailiff of a county court. The
latter was endeavouring to appre-
hend D. under a warrant issued out
of the county court, when the as-
sault was committed, but not with
more violence than was necessary to
prevent the apprehension : — Held,
that the production of the county
court warrant at the trial was a
sufficient justification of the act of
the bailiff, without proof of the
previous proceedings in the county
court. Ktg. V. Davies, 8 Cox, C. C.
486 ; L. & C. 64 ; 7 Jur., N. S.
1040 ; 4 L. T., N. S. 559.
An excise officer gave the defend-
ant a search warrant to look at,
who then refused to deliver it up,
and a scuffle ensued : on an indiclr
ment for an assault, the question
left to the jury was, whether the
officer used more force than was
necessary to recover possession of
the warrant. Bex v. Milton, M. &
M. 107 ; S, C.J nom. Hex v. Mitton^
3 C. & P. 31— Tenterden.
The defendant was convicted in
a penalty with costs, or to be im-
pnsoned seven days, the penalty not
having been paid, a warrant was
issued, imder 11 & 12 Vict. c. 43,
s. 25, for his apprehension, ad-
dressed " To the constable of G."
It was given to a county policeman
to execute. While he was attempt-
ing to apprehend the defendant, the
defendant resisted and wounded the
constable : — Held, that a county
policeman had no authority to exe-
cute it, it being addressed to the
parish constable ; and that the ap-
prehension was therefore illegal.
Heg, V. Sanders, 10 Cox, C. C. 445 ;
36 L. J., M. C. 87 ; 1 L. R., C. C.
75 ; 16 L. T., N. S. 331 ; 15 W. R.
752.
To support a charge of assault
on a constable in the execution of
his duty, it is not necessary that the
defendant should know that he was
a constable then in the execution of
his duty; it is sufficient that the
constable should have been actu-
ally in the execution of his duty
and then assaulted. JReg, v. Forbes,
10 Cox, C. C. 362— Russell Gumey,
Recorder.
The prisoner assaulted a police
constable in 'the execution of his
duty. The constable went for as-
sistance, and after an interval of
an hour returned with three other
constables, when he found that the
prisoner had retired into his house,
the door of which was closed and
fastened; after another interval of
52
ASSAULT AND BATTERY.
fifteen minutes the constables forced
open the door, entered, and arrested
the prisoner, who wounded one of
them in resisting his apprehension :
— ^Held, that as there was no dan-
ger of any renewal of the original
assault, and as the facts of the case
did not constitute a fresh pursuit,
the arrest was illegal. JSeg. v.
Marsden, 1 L. R., C. C. 131 ; 37 L.
J., M. C. 80 ; 18 L. T., N. S. 298 ;
16 W. R. 711 ; 11 Cox, C. C. 90.
A police constable though not
bound in the execution of his duty
to assist a publican in ejecting an
intruder from his house, yet in do-
ing so acts lawfully ; and resistance
to the constable renders the party
liable to a conviction for an assault.
Heg. V. Roxburgh^ 12 Cox, C. C. 8.
5, On Seamen, Keelmen or Casters.
By 24 & 25 Vict. c. 100, s. 40,
" whosoever shall unlawfully and
" with force hinder or prevent any
" seaman, keelman or caster from
" working at or exercising his law-
" ful tra(&, business or occupation,
" or shall beat or use any violence
" to any such person with intent to
" hinder or prevent him from work-
" ing at or exercising the same,
" shall, on conviction thereof be-
" fore two justices of the peace, be
" liable to be imprisoned and kept
" to hard labour in the common
" gaol or house of correction for
" any term not exceeding three
" months : provided that no person
" who shall be punished for any such
" offence by reason of this section
^^ shall be punished for the same of-
" fence by virtue of any other law
" whatsoever."
6. On Obstructing Sale of Grain, or
its Free Passage.
By 24 A 25 Vict. c. 100, s. 39,
" whosoever shall beat or use any
" violence or threat of violence to
" any person, with intent to deter
" or hinder him from buying, sell-
" ing or otherwise disposmg of, or
" to compel him to buy, sell or oth-
erwise dispose of any wheat or
other grain, flour, meal, malt or
potatoes, in any market or oth^
place, or shall beat or use any
such violence or threat to any
person having the care or charge
of any wheat or other grain, flour,
meal, malt or potatoes, whilst on
the way to or from any city,
market town or other place, with
intent to stop the conveyance of
the same, ^all, on conviction
thereof before two justices of XSm
peace, be liable to be imprisoned
and. kept to hard labour in the
common gaol or house of correc-
tion for any term not exceeding
three months : provided that no
person who shall be punished for
any such offence by virtue of this
section shall be punished for the
same offence by virtue of any
other law whatsoever."
7. Arising from Trade ComhinaJbms
or Conspiracies.
By 24 & 25 Vict. c. 100, s. 41,
"whosoever, in pursuance of any
" unlawful combination or conspir-
" acy to raise the rate of wages, or
"of any unlawful combination or
"conspiracy respecting any trade,
"business or manufacture, or re-
" specting any person concerned or
" employed therein, shall unlawfiiUy
" assault any person, shall be guilty
" of a misdemeanor, and, being con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
"imprisoned for any term not ex-
" ceeding two years, with or with-
" out hard labour." (Former pro-
vision, 9 Geo. 4, c. 31, s. 25.)
8. Occasioning actual Bodily Harm.
By 24 & 25 Vict. c. 100, s. 47,
" whosoever shall be convicted up-
" on an indictment of any assault oo-
" casioning actual bodily harm, shall
" be Uable, at the discretion of the
" court, to be kept in penal servi-
" tude for the term of five years (27
" & 28 Vict. c. 47), or to be impris-
" oned for any term not exceeding
INDICTMENT AND EVIDENCE.
53
" two years, with or without hard
"labour." [Former provision ^ 14
& 15 Vict. c. 100, 6. 29, repealed by
U & 25 Vict c. 95.)
Upon a count for assaulting, beat-
ipg, wounding and occasionmg ac-
tual bodily harm, against the stat-
ute, a prisoner may oe convicted of
a common assault. Reg, v. Oliver^
Bell, C. C. 287 ; 8 Cox, C. C. 884 ;
30 L. J., M. C. 12; 6 Jur., N. S.
1214 ; 9 W. R. 60 ; 3 L. T., N. S.
311.
A. was indicted for an assault,
and for having thereby imlawftilly
and maliciously inflicted grievous
Iwdfly harm. There was a count
for a common assault. The injuries
inflicted were sufficient to amount
to grievous bodily harm, and the
jury was so told ; but they returned
as their verdict : " We find the pris-
oner guilty of an aggravated as-
sault, but without premeditation ;
it was done under the influence of
paaaon ; "— Held, that the verdict
was rightly entered upon the count
chai^g the infliction of grievous
bodily harm. Reg, v. Sparrow^ 8
Cox, C. C. 393 ; Bell, C. C. 298 ; 6
Jur.,N. S. 1122 ; 30 L. J., M. C.
43 ; 9 W. R. 58 ; 3 L. T., N. S.
445.
Upon an indictment containing a
ooont for an assault occasioning ac-
toal bodily harm, under 14 £ 15
Vict c. 100, s. 29, the jury might re-
turn a verdict of guilty of a common
Msaalt merely. Where the judge
declined to receive such a verdict
M illegal, and the jury thereupon
found a general verdict of guilty,
Ae court awarded a venire de novo.
%. V. TeaMn, L. &. C. 81 ; 9 Cox,
C. G. 91 ; 31 L. J., M. C. 70 ; 7 Jur.,
N. S. 1128 ; 10 W. R. 64; 5 L. T.,
N. S. 329.
9. Indictment and Evidence.
An indictment for an assault,
&l£e imprisonment and rescue, stat-
ed ^at the judges of the court of
record of the town and county of P.
ifisaed their writ, directed to T. B.,
one of the Serjeants at mace to the
said town and county to arrest W.,
by virtue of which T. B. was pro-
ceeding to arrest W., within the ju-
risdiction of the court, but that the
defendant assaulted T. B. in the due
execution of his office, and prevent-
ed the arrest : — Held that such in-
dictment was bad, it not appearing
that T. B. was an officer of the court;
and that there could not be judg-
ment after a general verdict on such
a count as for a common assault and
false imprisoiunent, because the ju-
ry must be taken to have found that
the assault and imprisonment were
for the cause therein stated, wliich
cause appears to have been that the
officer was attempting to make an
illegal arrest of another, which be-
ing a breach of the peace, the de-
fendant might, for aught that ap-
peared, have lawfully interfered to
prevent it. Rex v. Osmer, 5 East,
304; 1 Smith, 555.
An indictment against two for an
assault on two, is bad. Anon., Loffit,
271. And see Rex v. Benjield^ 2
Burr. 983.
A count for night-poaching may
be joined with a coimt on 9 Geo. 4,
c. 69, B. 2, for assaulting a game-
keeper authorized to apprehend, and
with counts for assaultmg a game-
keeper in the execution of his duty,
and for a common assault. Rex v.
Finacane, 5 C. <fc P. 551 — ^Parke.
An indictment charging that the
defendant made an assault upon
Henry B. B., and him the said Wil-
liam B. B., did beat, wound and ill-
treat, is good, in arrest of judgment.
Reg. V. Ore^n, 11 Q. B. 913; 12
Jur. 433 ; 17 L. J., M. C. 128.
Where a defendant has pleaded
guilty to an indictment for an as-
sault, the record is evidence against
him in an action for the same assault.
Reg. V. Fontaine Moreau, 12 Jur.
626; 17 L. J., Q. B. 187; 11 Q. B.
1033— Denman.
On an indictment for an assault
on A. B., it is sufficient to prove
that an assault was committed on a
54
ASSAULT AND BATTERY.
person bearinff that name, although
two persons bore the same name,
viz. A. B. the elder, and A. B. the
yomiger, and the assault had been
committied on the latter only. Eex
V. Peace, 3 B. & A. 579.
10. Punishment,
By 24 & 25 Vict. c. 100, s. 47,
" whosoever shall be convicted upon
" an indictment for a common as-
''sault, shall be liable, at the dis-
" cretion of the court, to be impris-
" oned for any term not exceeding
" one year, T^dth or without hard la-
" bour.
11. Costs of Prosecvtian,
By 24 & 25 Vict. c. 100, s. 74,
where any person shall be convict-
ed on any indictment of any as-
sault, whether with or without bat-
tery and wounding, or either of
them, such person may, if the court
think fit, in addition to any sen-
tence which the' court may deem
proper for the offence, be adjudged
to pay to the prosecutor his actual
and necessary costs arid expenses
of the prosecution, and such mod-
erate allowance for the loss of
time as the court shall by affida-
vit, or- other inquiry and examina-
tion, ascertain to be reasonable;
and, imless the sum so awarded
shall be sooner paid, the offender
shall be imprisoned for any term
the court shall award not exceed-
ing three months, in addition to
the term of imprisonment, if any,
to which the offender may be sen-
tenced for the offence."
By s. 75, "the court may, by
warrant under hand and seal, or-
der such sum as shall be so award-
ed to be levied by distress and
sale of the goods and chattels of
the offender, and paid to the pros-
ecutor, and that the surplus, if
any, arising from such sale, shall
be paid to the owner; and in case
sucn sum shall be so levied, the
imprisonment awarded until pay-
" ment of such sum shall tliereupon
" cease."
A conviction of a defendant
for unlawfully wounding, and his
being sentenced therefore to a
term of imprisonment, and to pay a
sum of money to the prosecutor of
the indictment, for bis necessary
costs of the prosecution, and a mod-
erate allowance for his loss of time,
pursuant to 24 & 25 Vict. c. 100, s.
74, form no bar to his subsequently
suing the defendant for the same as-
sault, and recovering damages for
his bodily sufferii^ and medical ex-
penses occasioned thereby. Lowt
V. Barwarth, 13 L. T., N. S. 297—
Exch.
12. Summary Conmctions,
(a) Statute.
By 24 & 25 Vict. c. 100, s. 42,
where any person shall imlawfully
assault or beat any other person,
two justices of the peace, upon
complaint by or on behalf of the
party aggrieved, may hear and
determine such offence, and the
offender shall, upon conviction
thereof before them, at the discre-
tion of the justices, either be com-
mitted to the common gaol or
house of correction, there to be
imprisoned, with or without hard
labour, for any t€rm not exceed-
ing two months, or else shall for-
feit and pay such fine as shall
appear to them to be meet, not
exceeding together with costs (if
ordered), the sum of 5/.; and if
such fine as shall be so awarded, to-
gether with the costs (if ordered),
shall not be paid, either immedi-
ately after the conviction or 'with-
in such period as the said justices
shall at the time of the conviction
appoint, they may commit the of-
fender to the common gaol or
house of correction, there to be
imprisoned, with or without hard
labour, for any term not exceeding
two months, unless such fine and
costs be sooner paid." {Former
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SUMMARY CONVICTIONS.
55
prmdon, 9 Geo. 4, c. 31, s. 27, re-
pealed by 24 & 25 Vict. c. 95.)
By 8. 43, " when any person shall
" be charged before two justices of
" &e peace with an assaiit or bat-
"teryupon any male child whose
*'age shall not in the opinion of
" such justices exceed fourteen years,
** or upon any female, either upon
"the complaint of the party ag-
" grieved or otherwise, the said jus-
" tices, if the assault or battery is of
" such an aggravated nature that it
"cannot in their opinion be suffi-
" dently punished under the provis-
"ions hereinbefore contained as to
"(X)mmon assaults and batteries,
** inay proceed to hear and determ-
"ine the same in a summary
" way, and, if the same be proved,
" may convict the person accused ;
" and every such offender shall be
"liable to be imprisoned in the
" common gaol or house of correc-
" tion, with or without hard labour,
" for any period not exceeding six
" months, or to pay a fine not ex-
** ceeding (together with costs) the
" sum of 20/., and in default of pay-
" ment to be imprisoned in the com-
"mon gaol or house of correction
" for any period not exceeding six
"months, unless such fine and costs
" be sooner paid, and, if the justices
"shall so think fit, in any of the
"said cases, shall be bound to keep
"the peace and be of good behav-
"iour for any period not exceeding
"ax months from the expiration of
"RQch sentence." {Former provis-
wn,16&17 Vict. c. 30, 8. 1.)
By B. 44, " if the justices, upon
"tiie hearing of any such case of
" assault or battery upon the merits,
" where the complaint was prefer-
" red by or on behalf of the party
** aggrieved, under either of the last
"two preceding sections, shall deem
"the offence not to be proved, or
"shall find the assault or batter v
"to have been justified, or so tn-
" fling as not to merit any punish-
*ment, and shall accordingly dis-
"inisB the complaint, they shall
"forthwith make out a certificate
" under then- hands stating the fact
" of such dismissal, and shall deliver
" such certificate to the party against
"whom the complaint was pre-
" ferred." {Former provision^ 9 Geo.
4, c. 31,s. 27.)
By 8. 45, "if any person against
"whom any such complaint as in
" either of the last three preceding
" sections mentioned shall have been
" preferred by or on behalf of the
"party aggrieved, shall have ob-
"tained such certificate, or hav-
"in^ been convicted, shall have
" paid the whole amount adjudged
" to be paid, or shall have suffered
"the imprisonment, or imprison-
" ment with hard labour awarded,
" in every such case he shall be re-
" leased from all further or other
" proceedings, civil or criminal, for
"the same cause." (Former pro-
vision^ 9 Geo. 4, c. 31, 8. 28.)
By s. 46, " provided, that in case
" the justices shall find the assault
" or battery complained of to have
" been accompanied by any attempt
"to commit felony, or shall be of
" opinion that the same is, from any
" other circumstance, a fit subject for
" a prosecution by indictment, they
" shall abstain from any adjudica-
" tion thereupon, and shall deal with
" the same in all respects in the same
" manner as if they had no author-
" ity finally to hear and deternyne
" the same : provided also, that noth-
" ing herein contained shall author-
" ize any justices to hear and determ-
" ine any case of assault or battery
" in which any question shall arise
" as to the title to any lands, tene-
"ments or hereditaments, or any
" interest therein or accruing there-
" from, or as to any bankruptcy or
"insolvency, or any execution un-
" der the process of any court of
"justice." (Former provision^ 9
Geo. 4, c. 31, s. 22.)
A previous summary conviction
for an assault under 24 & 25 Vict,
c. 100, s. 45, is not a bar to an in-
dictment for manslaughter of the
56
ASSAULT Am) BATTERY.
party assaulted, founded upon the
same facts. Heg. v. Morris, 10 Cox,
C. C. 480 ; 1 L. R, C. C. 90 ; 36 L.
J., M. C. 84; 16 L. T., N. S. 636;
15 W. R. 990.
(b) Oomplainant or Informant.
An information made before a
magistrate stated that the inform-
ant, having been assaulted and
beaten by another person, prayed
that he might be bound over to
keep the peace towards him. On
the magistrates before whom the
case was heard proceeding to deal
with the merits of the question of
the assault, the informant protested
against their adjudicating upon it :
— Held, that the justices nad no ju-
risdiction to convict summarily the
offending party of the assault against
the will of the informant, as under
9 Geo. 4, c. 31, s. 27, the justices
had no jurisdiction to convict of an
assault unless the party aggrieved
complained of that assault before
them with a view to their adjudi-
cating upon it. Reg, v. Deny or
Totness (Justices), 2 L. M. & P. 230 ;
15 Jut. 227 ; 20 L. J., M. C. 189—
B. C.—Erle.
(c) Hearing and Gertijicate,
A party having been summoned
before two justices under 9 Geo. 4,
c. 31, 8. 27, for an assault, and hav-
ing appeared and pleaded not guilty,
the complainant declined to proceed,
stating that he meant to bring an
action. The justices thereupon dis-
missed the complaint, and gave the
defendant a certificate as follows:
— "We deemed the offence not
proved, inasmuch as the complain-
ant did not offer any evidence in
support of the information, and hav-
ing accordingly dismissed the com-
plaint " : — ^Held, that what passed
before the justices constituted a
hearing, and that the certificate
was a complete bar to an action for
the assault. Tunnicliffe v. Tedd, 5
C. B. 553 ; 17 L. J., M. C. 67.
A., having laid an information
against B. for an assault, under 9
wo. 4, c. 31, took out a summons,
which was served on B., but before
the day fixed for the hearing, gave
notice U^ B. that the summons was
withdrawn, and also to the magis-
trate's clerk that he, A., should at-
tend not on the day. B., however,
attended on the day, and claimed,
in the absence of the complainant,
to have the charge dismissed, and
to have granted a certificate of dis-
missal, pursuant to the statute. The
justices dismissed the charge, and
granted a certificate, which stated
the above facts : — Held, that what
was done amounted to a hearing
within 9 Geo. 4, c. 31, s. 27, and
that the certificate accordingly was
a bar to an action for the same as-
sault. Vaughton v. Bradshaw, 9 C.
B., N. S. 103 ; 7 Jur., N. S. 468 ;
30 L. J., C. P. 93 : 9 W. R. 120 ; 3
L. T., N, S. 373.
Where under 9 Greo. 4, c. 31, ss.
27-29, a complaint of assault or
battery has been made to two jus-
tices of the peace, who dismissed the
complaint and gave tlie party a oer
tificate accordingly, the certificate
may be pleaded m bar to an indict-
ment founded on the same facts,
charging assault and battery, ac-
compamed by malicious cutting and
wounding, so as to cause grievous or
actual bodily harm. JReg. v. Ehing-
ton, 1 B. & S. 688 ; 9 Cox, C. C. 86 ;
8 Jur., N. S. 97 ; 31 L. J., M. C. 14;
lOW.R. 13; 5 L. T., N. S. 284.
The granting a certificate of dis-
missal of the complaint is, when a
case is brought within sect. 27 of
the 9 Geo. 4, c. 31, a ministerial,
not a judical act, and a magistrate
is therefore bound to grant it. J3b»-
cock V. Somes, 1 El. & El. 795 ; 5
Jur., N. S. 983 ; 28 L. J., M. C.
196.
The certificate, if drawn up forth-
with and delivered to the party
against whom the complaint is pre-
ferred, is a good bar to a subsequent
action for the assault, though not
drawn up in the presence of the
UPON WOMEN AND CHILDREN.
57
parties, or applied for by the party
against whom the complaint was
poneferred Tb,
A certificate applied for by the
party entitled, five days after a com-
plaint had been dismissed, and
granted two days after the applica-
tion, hut dated as of the day upon
iHiich the complaint was made, is
made out forthwith, and is a good
defence to a subsequent action for
the same assault. Cottar v. Hether-
inffOm, 1 EL & El. 802 ; 5 Jur., N.
S. 985 ; 28 L. J., M. C. 198.
To an action for an assault, the
defendant pleaded that he had been
summoned by the plaintiff before a
mi^istrate, who convicted him in
the costs of the complainant and
hearing, which he had paid. At the
tml the magistrate's clerk produc-
ed his note-book, by which it ap-
peared that the magistrate had
merely ordered the defendant to
enter into his recognizances, and
pay the expense thereof; the clerk
also said in such cases no conviction
was ever drawn up : — ^Held, that
the plea was bad, and did not dis-
close a defence under 24 & 25 Vict,
c. 100, s. 45 ; that it was not prov-
ed ; and that, even if there was a
conviction, the proper proof was not
adduced, ffatiley v. Hindmarsh^ 1
L. R., C. P. 553 ; 12 Jur., N. S. 502 ;
1H.&R.607; 35 L. J., M. C. 255 ;
14 W. R. 862.
If a party is charged before two
nu^istrates with an assault, and
they dismiss the complaint, giving
him a certificate, he cannot avail
himself of this certificate as a de-
face to an action for the same as-
sanlt, unless it is specially pleaded.
Harding v. King, 6 C. & P. 427—
Gumey.
To an action of assault and
hattery, a certificate, imder 24 &
25 Vict. c. 94, s. 44, piay be pleaded,
together with a plea that the assault
was committed in order to prevent
a breach of the peace. Lawler v.
-«e%, 15 Jr. C. L. R., App. 1.
When an assault charged in an
indictment and that referred to in
a certificate of dismissal by a mag-
istrate appear to have been on the
same day, it is prim& facie evidence
that they are one and the same as-
sault, and it is incumbent on the
prosecutor to shew that there was
a second assault on the same day,
if he alleges that such is the case.
Reg, V. Westky, 11 Cox, C. C. 139—
Russell Gumey.
The appearance of the defendant
before the magistrate, the recital in
the certificate of the fact of a com-
plaint having been made, and of a
summons having been issued, are
sufficient evidence of those facts.
(d) Aggravated upon Women and
Children,
The 16 & 17 Vict. c. 30, s. 1, gave
jurisdiction to two justices of the
peace sitting at a place where petty
sessions are usually held to convict
persons of certain assaults, and a
warrant of commitment in the gen-
eral form provided by the \l & \2
Vict. c. 43, Schedule (P.), was sufii-
cient, without any allegation that
the convicting justices were sitting
at a place where petty sessions are
usually held. Allison, Ex parte, 10
Exch. 561 ; 24 L. J., M. C. 73.
An information was laid against
a man for assaulting and abusing a
woman. On the hearing before the
magistrates, she gave evidence tend-
ing to shew that the man had com-
mitted a rape on her. The magis-
trates convicted him of an aggra-
vated assault, under 16 & 17 Vict.
c. 80. The conviction recited the
information, and found the assault
proved, and sentenced him, for his
offence, to be imprisoned in the
house of correction for six calendar
months : — Held, that the conviction
for the minor offence was good.
Thompson, Ex parte, 6 Jur., N. S.
1247— Q. B.: S, P,, Wilkinson v.
Ihaton, 3 B. & S. 821 ; 32 L. J.,
M. C. 152.
An information before justices
58
ASSAULT AND BATTERY.
charged the defendant with having
unlawfully assaulted and abused a
female. She and the defendant
were each represented by attorneys,
and at the hearing, while the attor-
ney for the woman was opening his
case, the attorney for the defendant
objected that the facts he had stat-
ed constituted a case of rape, and
that the justices had no jurisdiction.
It was then suggested that the case
should be treated as a charge of an
aggravated assault. The case pro-
ceeded, and the defendant was con-
victed of an aggravated assault. It
appeared by affidavits upon an ap-
plication for a habeas corpus, with
a view to the discharge of the de-
fendant, that the evidence of the
woman was to the effect that the
defendant had ravished her : — Held,
per Pollock, C. B., and Wilde, B.,
that the charge was one over which
the j ustices had no jurisdiction ; and
that it was competent for the court
to look at the evidence with a view
to see whether, in point of fact, the
case was within the jurisdiction of
justices. Thompson^ In re, 30 L. J.,
M. C. 19 ; 6 H. & N. 193 ; 9 W.
R. 203 ; 9 Cox, C. C. 70 ; 3 L. T.,
N. S. 409 ; 7 Jur., N. S. 48.
Held, per Bramwell, B., and Chan-
nel!, B., that the charge did not im-
ply more than a common assault,
that the justices had jurisdiction,
and that the court could not review
the decision of the justices upon the
fact. Ih,
(e) Amounting to Felony,
A party was convicted summarily
by two justices for an assault. The
act appeared to have been done with
intent to commit an unnatural of-
fence, but not to have been attend-
ed with violence. A certiorari was
moved for, on the ground that the
offence, if committed, was within
9 Greo. 4, c. 31, s. 29, which pre-
vents justices from convicting where
an attesGmt to commit felony ap-
pears. Tlie court refused to inter-
fere, as no excess of jurisdiction ap-
peared on the face of the conviction,
and the evidence, of which the mag-
istrates were the judges* did not
clearly shew an intention to com-
mit felony. Anon,^ I B. & Ad.
382.
(f) Fines.
Before 24 4" 25 Vict. c. 100, *. 42.]
-^By 9 Greo. 4, c. 31, s. 27, power
was given to two justices, in cases
of assault, to impose upon the of-
fender a fine not exceeding 5/., "to
be paid to some one of the over-
seers of the poor, or to some other
officer of the parish, township, or
place in which the offence shall
have been committed, to be by sudi
overseer or officer paid over to
the use of the general rate of the
county, riding, or division in which
the parish, township, or place shaU
be situate ;" and s. 35 provided that
the conviction might be drawn up
in a given form, or in any other form
of words to the same effect : — ^Held,
that a conviction by which the pen-
alty was ordered to be paid " to tJie
treasurer of the county of C, in
which the offence was committed,
to be by him applied according to
the directions of the statute," or the
party in default to be imprisoned
for two months, was bad, and that
the justices were liable in trespass
for the imprisonment of the party
under it. Ohaddock v. Wilhraham^ 5
C. B. 645 ; 8 New Sess. Cas. 227 ;
12 Jur. 136 ; 17 L. J., M. C. 79.
A. was sunmioned imder 9 Geo.
4, c. 31, ss. 27, 33, for an a^ault.
He did not appear, and the justicee,
upon proof of service, heard the case
and convicted A. The conviction
was drawn up in the form given in
sect. 35, and by it A. was adjudged
to forfeit and pay 21. 10s. and 11*.
%d. for costs ; and, in default of im-
mediate payment, to be imprif?oned'
for six weeks, imless the siun should
be sooner paid ; and the conviction
directed that the 2Z. \0s. should be
paid to one of the overseers of the
parish within which the offence
BIGAMY— THE OFFENCK
59
wi^ committed, and the 1 Is. Qd, to
the party aggrieved. And directly
thereafter, no payment being made,
the justices, in the absence of A.,
and without further summons, issu-
ed a warrant of commitment for
defiialt of payment : — ^Held, that
Uke commitment was legal. Arnold
T. Dimsdak, 2 El. & Bl 680 ; 17
Jut. 1157; 22 L. J., M. C. 161.
VIL Bigamy.
1. The Offence, 59.
2. On Absence or Death of Pcarties,
S. When TnaUe, 64. [62.
4. Indiehnent, 64.
5. Evidence and WitneauM, 65.
1. The Offence.
The Statute.Y'^Y 24 & 25 Vict,
c 100, s. 67, " whosoever, being
"married, shall marry any other
^ person during the life of the form-
"er husband or wife, whether the
" second marriage shall have taken
"place in Ei^land or Ireland or
" elsewhere, shall be guilty of felony,
"and, being convicted thereof, shall
" he liable, at the dL^retion of the
"coart, to be kept in penal servi-
" tade for any term not exceeding
"seven years and not less tlian five
"years (27 & 28 Vict. c. 47) ; or
" to be imprisoned for any term not
"exceeding two years, with or with-
"out hard labour;"
"And any such oifence may be
" dealt with, inquired of, tried, de-
"tennined, and punished in any
" county or place in England or Ire-
"land where the offender shall be
" apprehended or be in custody, in
" the same manner in all respects as
" if the offence had been actually
"committed in that county or
" place ;"
"Provided that nothing in this
" section contained shall extend to
"any second marriage contracted
"elsewhere than in England and
" Ireland bv any other than a sub-
' ject of her Majesty, or to any per-
" son marrying a second time whose
" husband or wife shall have been
'' continually absent from such per-
" son tor the space of seven years
" then last past, and shall not have
" been known by such person to be
"living within that time, or shall
" extend to any person who, at the
" time of sucn second marriage,
" shall have been divorced from the
" bond of the first marriage, or to
" any person whose former marriage
" shall have been declared void by
" the sentence of any court of com-
"petent jurisdiction." {Similar to
9 Geo. 4, c. 31, s. 22.)
By 9 Geo. 4, c. 31, 1 Jac. 1, c. 11,
35 Geo. 3, c. 67 ; and so much of 4
Edw. 1, s. 3, 18 Edw. 3, s. 3, and 1
Edw. 6, c. 12, as related to this suh-
ject, were repealed. By 24 & 25
Vict. c. 95, the 9 Geo. 4, c. 31, s.
22, is repealed.
In respect of what marriages.^ —
After a marriage contracted in Ens-
land, the parties went to reside m
Scotland, where they were divorc-
ed by reason of adultery by the hus-
band— he then married again in
England, and on a trial for bigamy,
was found guilty, notwithstanding
the Scotch sentence of divorce. Zo£
ley's case, 2 C. & F. 567, n. ; R. &
R. C. C. 237.
Semble, that assuming a fictitious
name upon the second marriage will
not prevent the offence from being
complete. Rex v. Allison , R. & R.
C. C. 109.
And if the prisoner has written
down the names for the publication
of the banns, he is precluded from
saying that the woman was not
known by .the name he delivered
in, and that she was not rightly de-
scribed by that name in the indict-
ment. JRex V. EdwardSy R. & R.
C. C. 283.
On an indictment against a man
for bigamy, it appeared, that for
the purpose of concealment, the sec-
ond wiie was married by a name by
which she had never been known :
— ^Held, that this was no answer to
60
BIGAMY.
the charge, althoxigh, if the first
marriage had taken place under
such circumstances, that would have
been thereby rendered void. JRex
V. Pensan, 5 C. & P. 412 — Gumey.
If the first marriage was by
banns, it is no objection that the
parties did not reside in the parish
where the banns were published,
and the marriage celebrated. Hex
V. Bind, R. & R. C. C. 253.
In the publication of banns in
1817, a woman named Mary Hodg-
kinson was called White, a surname
entered by mistake in the register
of her baptism, but which she had
never gone by or been entitled to.
The false name was given to the
officiating clergyman without any
intention to mi^ead; nor did any
individual having any interest in
the marriage appear to have been
deceived : — ^Held, that the marriage
was void. It might have been
otherwise, if (without any fraudu-
lent intent) there had been only a
partial variation of the name, or
the addition or suppression of one
christian name, or the name had
been one which the party had ever
used or been known by. Bex v.
T^bshdf, 1 B. & Ad. 190.
To render a marriage invalid with-
in 4 G«o. 4, c. 76, s. 22, which en-
acts, '^ that if any person shall know-
ingly and wilfully intermarry with-
out the publication of banns, the
marriage of such persons shall be
null and void," it must be contract-
ed by both parties with a knowl-
edge that no due publication has
taken place ; and, tnerefore, where
the intended husband procured the
banns to be published in a christian
and surname which the woman had
never borne, but she did not know
that fact xmtil after the solemniza-
tion of the marriage, the mamage
was valid. Hex v. Wroxtan, 1 N.
AM. 712; 4B. & Ad. 640.
A marriage, which would have
been void by 26 Geo. 2, c. 33, and
had onoe been rendered vaUd by 3
Geo. 4, c. 75, s. 2, cannot be subse-
quently rendered invalid by the
marriage of either of the parties,
during the life of the other, with a
third person. Hex v. St, John Dd.
pike, 2 B. & Ad. 226.
The 5 & 6 Will. 4, c. 54, renders
absolutely void all marriages sol-
emnized after the time of its pass-
ing between persons within the pro-
hibited degrees, and which' were
previously voidable only by sen-
tence of the Ecclesiastical Coort
pronounced during the life of both
parties. Reg, v. Chadwich {in «•-
r<w), 11 Q. B. 173 ; 12 Jur. 174; 17
L. J., M. C. 33 ; 2 Cox, C. C. 381.
Therefore, a marriage with de-
ceased wife's sister contracted after
the passing of that act, is absolutely
void. Ih.
A., a married woman, in the life-
time of her husband, married B.,
who was a widower, B. having been
the husband of A.'s deceased sister:
— ^Held, that this was bigamy in A,
and that the circumstance that the
marria^ of A. and B. would have
been wholly void under 5 & 6 Will.
4, c. 54, s. 2, even if A. had been un-
married, made no diiference. R«g»
V, Brawn, 1 C. & K. 144; 1 Cox,
C. C. 33— Denman.
Held, also, that if B. knew at ^e
time of his marriage with A. that
she was a married woman, he might
be convicted of the felony of conn-
selling A. to conmiit bigamy. Ih,
Minors,'] — ^The marriage of a min-
or bv licence without the consent
required by 4 Geo. 4, c. 75, s. 16,ifl
valid. Rex v. Birmingham, 2 M.
& R. 230 ; 8 B. & C. 20. So un-
der 6 & 7 Will. 4, c. 85, 8. 25.
It is not necessary imder a prose-
cution for bigamy for a subsequent
marriage of a minor, to prove the
consent of the parent to the first
marriage. Reg. v. Clark, 2 Cox, C.
C. 183— Rolfe.
/n«A..]— By 9 Geo. 2, c 11 (^W),
the marriage of a minor without
consent is void ; but if no suit be
commenced witliin one year aft«r
THE OFFENCE.
61
the marriage, it shall be good,
llierefore, where it appeared in a
caae of bigamy that the firet mar-
riage was celebrated in Ireland by
licence, when the prisoner was a
minor, without his Other's consent :
—Held, that it was no defence, as
more than a year had elapsed from
the time of the marriage. Jiex v.
Jaeoht, 1 M. C. C. 140.
But by 7 & 8 Vict. c. 81, s. 32,
proof of consent of parents or guar-
dians is unnecessary.
Hie marriage of a Protestant in
L«luHi to a Roman CathoUc, by a
Roman Catholic priest, is void by
l&Geo. 2, c. 33 (Irish). Sunder^
laa^i ease, 2 Lewm, C. C. 109—
Patteson.
In Ireland, the marriage of two
Roman Catholics by a Roman Cath-
olic priest is good ; and if a person
at the time of such marriage de-
clares himself to be a Roman Cath-
oUc, and the woman is a Roman
Catholic, this is a good marriage as
■gainst him ; and S^he is afterwards
tned for bigamy on this marriage
(he having been before married to
another wife, who was still alive),
he will not be allowed to set up his
snpposed Protestantism as a defence
to the charge. Reg, v. OrgiU, 9. C.
& P. 80— Alderson.
To prove a marriage of two Ro-
man Catholics in Ireland, evidence
was given that the Rev. W. O'S,
(who officiated) acted as a Roman
Oa^olic priest, and that the mar-
lage (as was usual) took place at
his house, and he asked the parties
if they were Roman Catholics, and
that they said they were so; that
part of the ceremony Was in Eng-
lUb and part in Latin; and that
having asked the man if he would
take the woman as his wife, and the
woman if she would take the man
18 her husband, and each having
ttwwered in the affirmative, he pro-
Dcmnced them married : — Held, suf-
ficient lb. .
A. was married to S., according
to the rites of the Established
Church, in 1858, -and in April,
1865, during the life-time of S.,
he was married to B. in a Ro-
man Catholic church, in Dub-
lin. C. knew A. six months pre-
viously to the marriage, and believ-
ed him to be a Roman Catholic.
He told B. that he was a Roman
Catholic. He had been bom and
reared a Protestant, and had attend-
ed the Protestant service on Christ-
mas morning, 1865. The jury found
that A. was a professing Protestant
within twelve months previously to
the marriage, and that he had held
himself out as a Roman Catholic to
the clergyman who married him,
and had told the woman he was a
Roman Catholic, and the jury con-
victed him of bigamy : — ^Held, that
he was wrongly convicted. Beg,
V. Fanning, 17 In C. L. R. 289 ; 14
W. R. 701 ; 10 Cox, C. C. 411.
Scotch.] — For what is necessary
to constitute a vaM marriage i^
Scotland, see Graham* s c<xse, 2Lew-
in, C. C. 97 ; DalrympU v. Dalrym"
pie, 2 Hagg. Cons. R. 54.
A., a subject of her Majesty, and
resident in England, was married
in Scotland, according to the law
of Scotland. He subsequently mar-
ried again in the same country, and,
according to the same law, his first
wife being alive. Both wives, at
the time of their marriage, were
resident in England : — Held, that he
had conunitte^ an offence against 9
Geo. 4, c. 31, s. 22. Reg. v. Top-
ping, Dears. C. C. 647 ; 2 Jur., N.
S. 428 ; 25 L. J., M. C. 72 ; 7 Cox,
C. C. 103.
On a trial for bigamy a woman
was called as a witness, who stated
that she was present at a ceremony
performed in a private house in Scot-
land, by a minister of some religious
denomination ; that she herself was
married in the same way, and that
parties always married in Scotland
m private houses : — ^Held, that she
was not a competent witness to
prove the law of Scotland as to
62
BIGAMY.
marriage, and. that her evidence
did not prove the fact of a mar-
riage. Ileg, V. Povey^ 6 Cox, C. C.
83 ; Dears. C. C. 32 ; 22 L. J., M.
C. 19.
In * what Chapeh or PUices.^ —
Where the first marriage was sol-
emnized in a chapel, it was neces-
sary to show either that the chapel
was one in which banns had been
usually published before 26 Geo. 3,
c. 33, or that the chapel was built
and consecrated after that act, and
before 6 Geo. 4, c. 92 ; and proof
that marriages have been solem-
nized there for the last twenty years
is not sufficient for this purpose.
Reg, V. Bowen, 2 C. & K. 227—
Piatt.
The prisoner was convicted on an
indictment for bigamy. It was al-
leged that the first marriage took
place in a dissenting chapel duly
licensed for marriages, and a wit-
ness was called who proved that he
was present at the marriage, that it
took place in the dissenting chapel
in the presence of the registrar, that
the entry of the mamage in the
registrars book was signed by the
witness as a witness to the mar-
riage, and that the parties after-
wards lived together as husband
and wife for some years: — ^Held,
first, that the parol testimony of the
witness sufficiently proved the fact
of marriage. Reg, v. Manwaring^
Dears. & B. C. C. 132 ; 2 Jur., N.
S. 1236 ; 26 L. J., M. C. 10 ; 7 Cox,
C. C. 192.
Held, secondly, that there was
primd. facie evidence that the chapel
was duly registered, and was a place
in which marriages might legally
be solemnized. lb,
A witness produced a certificate,
under the hand of the superintend-
ent registrar, of the fact that the
chapel had been duly registered.
It did not purport to be a copy or
an extract, but the witness proved
that he had examined it with the
register book at the office of the su-
perintendent registrar, and that it
was correct : — Held, that the docn-
ment was admissible as an exam-
ined copy or extract from the super-
intendent registrar's book, under
14 & 15 Vict. c. 99, 8. 14, and waa
therefore good evidence of the due
registration of the chapel. Ih,
r*roof of a marriage before the
registrar, although in a chapel not
regularly licensed and registered, is
sufficient. Req, v. IHlsan, 1 F. &
F. 54— Wightman.
Proof of a marriage in a chapel
in the presence of the registrar of
the district and two witnesses, is
sufficient without proving that tbe
chapel was registered. Reg. v,
Oradock, 8 F. & F. 837— Wiiles.
Upon an indictment for bigamy,
it appeared that the prisoner was
married to his first wife in a place
which had been registered pursuant
to 6 & 7 Will. 4, c. 85. It was
proved that notice of the marriage
had been given to the superintend-
ent registrar ; but that notice was
not produced by him. The regis-
ters of the marriage and of the
building, were, however, produced
and read. It was objected that
there ought to have been further
evidence that due notice was given
to the siiperintendent registrar; that
he issued his certificate thereon, and
that the marriage was celebrated in
the building specified in that notice
and certificate : — ^Held, that the ev-
idence given proved a sufficient
primil facie case, and that the con-
viction was right. Reg, v. Hawet,
2 Cox, C. C. 432 ; 1 Den. C. C. 270.
2. On Absence or Death of Partief,
Semble, that the construction of
9 Geo. 4, c. 31, s. 22, in relation to
the offence of bigamy, is this : not
that the party, charged to be de-
prived of the benefit of its provision
as a defence, must have known at
the time when he contracted the
second marriage that .the first wife
had been alive during the seven
years preceding ; but that to bring
ABSENCE OR DEATH OF PARTIES.
63
him within that proyision, he must
have been ignorant during the whole
ci iboee seven years that she was
aKve. Eeg v. OuUeny 9 C. <fc P.
681— Patteson.
When the prisoner's first wife
had left him sixteen years, and it
was proved by the second wife that
she had known him for nine years
Uving as a single man, and that she
had never heard of the first wife,
who it appears had been living sev-
eoteen nules from where the prisoner
r^ed: — ^Held, that on this evi-
deix^ the prisoner ought to be ac-
quitted on the proviso contained in
9 Geo. 4, c. 31, s. 22. Beg. v.
•fewi, Car. & M. 614 — Cresswell.
A woman was convicted on an
indictment for bigamy. It appear-
ed that her first husband had been
centboally absent from her for sev-
en years next preceding the second
marriage; on which occasion she
represented herself as a single wo-
man, and was married by her maid-
en name. The jury being asked to
oonsider whether she knew her hus-
hand to be alive at the time of the
second marriage ; and if not, wheth-
er she had the means of acquiring
&e knowledge, found that they had
no evidence of her knowledge, but
the jury was of opinion that she had
the means of acquiring knowledge
if she had chosen to make use of
tiiem; — Held, that upon that find-
ing the conviction could not be sus-
tamed. Reg. v. Briggs^ Dears. &
B.C.C. 98; 2 Jur., N. S. 1195;
26 L. J., M. C. 7 ; 7 Cox, C. C.
175.
Whether evidence is necessary on
the part of the prosecution to shew
that the prisoner married, knowing
his second wife to be aUve, depends
upon the particular fact of each case.
% V. ms,\ F. & F. 309— Willes.
It is a question for the jury
whether the prisoner knew that his
first wife was alive. Reg. v. Dane,
1 F. & F. 323— Bramwell.
The harden of proof that a per-
Kui charged with bigamy has not
been continually absent from his
wife for seven years, and that she
was not known to him to be living
within that time, is on the prosecu-
tion and not on the prisoner, for
how can he prove a negative that
he did not know. Reg. v. JHeaion,
3 F. & F. 819— Wightman.
When it is proved that .the pris-
oner and his first wife have lived
apart for the seven years preoeding
the second marriage, it is incimibent
on the prosecution to shew that dur-
ing that time he was aware of her
existence ; and, in absence of such
proof, he is entitled to be acquitted.
Reg, V. Curgenwen, 10 Cox, C. C.
152 ; 1 L. K, C. C. 1 ; 11 Jur., N.
S. 984 ; 35 L. J., M. C. 58 ; 14 W.
R. 56 ; 13 L. T., N. S. 383.
Where no evidence was given on
either side as to \^ knowledge that
his wife was alive, but it was proved
that they had separated by agree-
ment in 1843, and in 1857 he pro-
duced her at a trial in which he
was interested : — Held, that it was
for the jury to say whether there
was an absence of knowledge on his
part that his wife was alive m 1855,
the date of the second marriage.
Reg. V. Cross, 1 F. &. F. 510—
Cockbum.
Evidence of the cohabitation of
the first husband with another wo-
man, his reputed wife, before the
time of his marriage with the ac-
cused, and of such reputed wife
being alive after that marriage, is
sufficient evidence of a prior mar-
riage to warrant an acquittal. Reg.
V. Wilson, 3 F. & F. 119— Cromp-
ton.
Onus of Proof.l— On a trial
for bigamy, it was proved that
the prisoner married A. in 1836,
left him in 1843, and married
again in 1847. Nothing was heard
01 A. after the prisoner left him, nor
was any evidence given of his age :
— ^Held, that there was no presump-
tion of law, either in favor of or
against the continuance of A.'s life
64
BIGAMY.
up to 1847 ; but that it was a ques-
tion for the jury, as a matter of fact,
whether or not A. was alive at the
date of the second marriage in 1847.
Reg, V. Lumley^ I L. R., C. C. 196;
11 Cox, O. C. 274; 17 W. R. 685;
38 L. J., M. C. 86 ; 20 L. T., N. S.
454.
In 1863 the prisoner married his
first wife, lived with her about a
week,*and then left her. It was
not proved that he had since seen
her. In 1867 he married another
woman, his first vn&i being then
alive. On the trial of an mdict-
ment for bigamy, the judge told
the jury that they must be satisfied
that the prisoner knew that his first
wife was alive at the time of the
second marriage: — Held, that the
direction was right, and that it was
not necessary to prove affirmatively
that at the time of the second mar-
riage he knew that his first wife
was alive. Reg, v. Jones^ 21 L. T.,
N. S. 396— C. C. R.
It is a good defence to an indict-
ment for bigamy that the prisoner
at the time of the second marriage,
honestly and bona fide believed
that his first wife was dead, and had
reasonable grounds for so believing.
Reg, V. Horton, 11 Cox, C. C. 670.
3. Where Triable.
By 24 & 25 Vict c. 100, s. 57,
' the offence may be dealt with, in-
* quired of, tried, determined, and
'punished in any county or place
' m England or Ireland where the
' offender shall be apprehended or
' be in custody, in the same manner
' in all respects as if the offence had
'been actually committed in that
* county or place.'* (Former pro-
vision, 9 Geo. 4, c. 31, s. 22.)
Where a prisoner, having been
apprehended for larceny, was de-
tained in the same county for big-
amy, the detainer was such an ap-
prehension as would warrant the in-
dicting him in that county, under 1
Jac. 1, c. 11. Rex v. Gordon^ R.
& R. C. C. 48.
An indictment for bigamy, com-
mitted in one county, found by a
jury of another where the prisoner
was apprehended, must state tiiat
fact. Rex v. Fraser, 1 M. C. C.
407.
But if an indictment for bigamr
is tried at the same assizes at which
the bill is found, it will sufficiently
appear by the caption, that the
party is in custody in the county, 8o
as to give the court jurisdiction;
and there need not, in tliat case, be
any averment in the indictment as
to the custody. Reg. v. WkUey^
1 C. & K. 150 ; 2 M. C. C. 186.
See Reg. v. Smgthies, 1 Den. C, C.
498 ; 2 C. & K. 878.
An indictment was allowed to be
amended as to the allegation of ap-
prehension in the county. Reg. v.
Smith, 1 F. & F. 36— Channell.
4. Indictment,
The second wife being described
as E. C, widow ; she was, in feet,
not a widow, nor had she ever been
represented or reputed to be so :—
was formerly a fatal variance, but
now amendable under 14 & 15
Vict. c. 100, s. 1. Rex v. Deeky, 4
C. & P. 579 ; 1 M. C. C. 303.
If there was a discrepancy be-
tween the christian name of the
prisoner's first wife as laid in the
indictment and as stated in the copy
of the certificate which was pro-
duced to prove the first marriage,
the prisoner must be acquitted, un-
less that discrepancy could be ex-
plained, or in the absence of such
proof, unless it could be shewn that
the first wife was known bv both
names. Reg. v. Gooding, Car. &
M. 297— Maule.
In an indictment, it is sufficient to
aver the life of the first wife, with-
out going on to allege that the mar-
riage is still subsisting. Mtrrctv v.
Reg. (in error), 7 Q. B. 700 ; 9 Jur.
596 ; 14 L. J., Q. B. 357.
EVIDENCE AND WITNESSES.
65
5. &ndence and Witnesses,
Where a first marriage was sol-
emnized under 6 & 7 Will. 4, c. 85,
the certificate authorized by that
act and 6 & 7 Will. 4, c. 86, s. 38,
coupled with the identity of the
parties, Ls sufiSeient prim& facie evi-
dence of such marriage. Reg, v.
Ikwt», 1 Den. C. C. 270 ; 2 Cox,
C. C. 432.
It is not necessary to put the
original register in evidence to
prove a marriage. Sayer v. Glos-
wp, 2 Exch. 409 ; 2 C. & K. 694 :
12 Jut. 465— Parke.
A photographic likeness of the
firet hushand allowed to be shewn
to the witnesses present at the first
marriage, in order to prove his
identity with the person mentioned
in the marriage certificate. Reg, v.
2W»R, 4 F. ifc F. 103—Willes.
A prisoner's declarations, delib-
erately made, of a prior marriage
in a foreign country, are suflScient
eridence of such marriage, without
proving it to have been celebrated
according to the law of the coimtry.
Beg, V. Newton, 2 M. & Rob. 503 ;
& C, nom. Reg, v. Simmonsto^ 1
C. <fc K. 164— Wightman.
Semble, that an acknowledgment
alone by the prisoner of the lact of
the first marriage would not be suf-
ficient evidence of that fact. Reg,
T. Tmeman, 1 East, P. C. 470.
But proof of such an acknowl-
edgment, together with evidence of
cohabitation, and that the prisoner
backed his assertion by producing
to the witness a copy of a proceed-
ing in a Scotch couit, for having
improperly contracted the marriage
(but which was a nullity), will be
suffiarient evidence of the first mar-
ri&ge. lb.
There ought to be some proof of
the first marriage, beyond the mere
statement of the prisoner while in
custody; therefore, where a man
went to a police station, and seated
that he had committed bigamy,
and when and where the first mar-
riage took place, and while in cus-
tody signed a statement to the same
eflfect, the judge thought this, though
some evidence of the first marriage,
was not sufiicient, and so told tne
jury. Reg. v. Flaherty^ 2 C. & K.
782— Pollock.
On a trial for bigamy, a woman
was called as a witness, who stated
that she was present at a ceremony
performed at a private house in
Scotland by a minister of some re-
ligious denomination ; that she her-
self was married in the same way,
and that parties always married m
Scotland in private houses :— Held,
that she was not a competent wit-
ness to prove the law of Scotland
as to marriage, and that her evi-
dence did not prove the fact of a
marriage. Reg. v. Povey, Dears.
C. C. 82 ; 17 Jur. 120 ; 22 L. J.,
M.C. 19; 6Cox, C.C. 83.
A sentence of jactitation was not
conclusive evidence against an in-
dictment of bigamy ; for its validi-
ty might be impeached as having
been obtained by fraud. Duchess
of Kingston's casCy 1 Leach, C. C.
146 ; 1 East, P. C. 468.
A reputed firgt wife cannot give
evidence in favour of her supposed
husband. Peat'*s case, 2 Lewin, C.
C. Ill — Alderson,
Quaere, whether a woman who
has gone through the ceremony of
marriage with a man can be al-
lowed to prove the invalidity of the
marriage, and that she is not his
wife ? Peat's case, 2 Lewin, C. C.
288.
Semble, that she may be exam-
ined upon the voir dire. lb,i S, P,
Rex V. Wakefieldy 2 Lewin, C. C.
279— HuUock.
Fish. Dig. — 5
66
BURGLARY AND HOUSEBREAKING.
VIII. BURGLABY AKD HOUSE-
BBEAKIKG.
1. Statutes, 66.
2. Breaking and Entering, 67.
3. Breaking out, 68.
4. By Lodgers, 69.
5. What 18 Night-time, 69.
6. What is a Vwelling-house, 69.
7. What is not a Dwelling-house, 71.
8. J^reah'ng into Churches and Places
of Divine Worship, 72.
9. T/ie Curtilage, 73.
10. Ownership, 74.
11. Intent, 75. [76.
1 2. Armed with Intent to break or enter,
13. Stealing in a Dwelling-house, 77.
14. In Schools, Shops, Warehouses or
Counting-houses, 78.
15. PaHies Indictable, 79.
16. Indictment, 79.
17. Evidence and Trial, SI.
1. Statutes.
By 24 & 25 Vict. c. 96, s. 51,
whosoever shall enter the dwell-
ing-house of another with intent
to commit any felony therein, or,
being in such dwelling-house, diall
commit any felony therein, and
shall in either case break out of
the said dwelling-house in the
night, shall be deemed guilty of
burglary." (Former provision^ 7
& 8 Geo. 4, c. 29, s. 11.)
By 8. 1, " the night shall be
deemed to commence at nine of
the clock in the evening of each
day, and to conclude at six of the
clock in the morning of the next
succ^ding day.
By 8. 52, "whosoever shall be
convicted of the crime of burg-
lary shall be liable, at the dis-
cretion of the court, to be kept in
penal servitude for life, or for any
term not less than five years (27
& 28 Vict. c. 47), or to be im-
prisoned for any term not exceed-
ing two years, with or without
hard labour, and with or without
solitary confinement."
By s. 53, " no building, although
within the same curtilage with
any dwelling-house, and occupied
tiierewith, shall be deemed to be
((
u
<i
il
u
«((
((
(4
((
ii
«
<(
<(
il
<C
u
a
" part of such dweUing-house for
" any of the purposes of the act,
" unless there shall be a commnni-
" cation between such building and
" dwelling-house, either immediate
" or by means of a covered and in-
^^ closed passage leading from the
" one to the other." (Former pro-
vision, 7 & 8 Geo. 4, c. 29, s, 18.)
By s. 54, " whosoever shall enter
" any dwelling-house in the night
" with intent to commit any felony
" therein shall be guilty of felony,
" and being convicted thereof shall
" be liable, at tlie discretion of the
" court, to be kept in penal servi-
" tude for any term not exceeding
" seven years and not less than ^\e
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not
" exceeding two years, with or
" without hard labour, and with or
" without solitary confinement."
By s. 55, " whosoever shall break
" and enter any building, and com-
" mit any felony therein, such build-
" ing being within the curtilage of
" a dwelling-house, and occupied
"therewith, but not being part
" thereof, according to the provis-
" ion hereinbefore mentioned, or
" being in any such building shall
" commit any felony therein, and
" break out of the same, shall be
" guilty of felony, and being con-
" victed thereof shall be liable, at
" the discretion of the court, to be
" kept in penal servitude for any
" term not exceeding fourteen years
" and not less than hve years (27 &
" 28 Vict. c. 47), or to be impris-
" oned for any term not exceeding
" two years, with or without ham
" labour, and with or without soli-
" tary confinement." (Former pro-
visional & 8 Geo. 4,c. 29, s. 14.)
By 7 & 8 Geo. 4, c. 27, 12 Anne,
s. 1, " was repealed, and so much of
" 18 Eliz. c. 7, as related to this
" subject ; and 24 & 25 Vict. c.
" 95, repeals 7 & 8 Geo. 4, c. 29, &
" 11, and 7 WiU. 4 & 1 Vict. c.
" 86."
BREAKING AND ENTERING.
67
2. Breaking and Entering,
There must be both a breaking
and an ent^riug to constitute a
bravlary, and the breaking must be
• each as will afford the burglar an
opportiuiity of entering so as to
commit the intended felony. Rex
Y.Biighes, 1 Leach, C. C. 406; 2
Eagt,P. C. 491.
If there is an aperture in a cellar
window to admit light, through
which a thief enters m the night,
this Is not burglary. Hex v. Levns,
2 C. & P. 628--Vaughan.
Where a mill, under the same
roof and within the same curtilage
as a dwelling-house, had a trap-
door over a gateway, w^hich was
only fastened by a lid-door kept
down by its own weiglit, Adthout
holt<i or other interior fastenings : —
Held, that an entry into the mill in
the night with intention to steal
flour by raising the lid-door amount-
ed to burglary. Hex v. Brown, 2
Ea?t, P. C. 487 ; 2 Leach, C. C.
1016, n.
Though a thief enters a dwell-
nig-hou8e at night through an open
door or a window, yet if, when with-
in, he breaks or opens an inner door
with intent to commit felony, it is
hur^larv. JRex v. Johnson, 2 East,
P. C. 488.
Introducincr the hand between
the glass of aA outer window and
an inner shutter is a sufficient entry
to constitute burglary. Hex v.
J5b'%,R. &.R. C. C. 341.
It is not sufficient to constitute
the offence of burglary, that there
was an entry without a breaking of
the outer door, and a breaking
without an entry of an inner one.
Heg. V. BavtSy 6 Cox, C. C. 369.
And it is a sufficient breaking to
constitute such an offence, if the
party breaks a pane of glass of a
window, and puts his hand in for
the purpose of opening the shutter,
although he did not succeed in do-
ing 80. JRex V. Perkes, 1 C. & P.
300-.Park.
lifting the flap of a cellar usu-
ally kept down by its own weight,
is a sufficient breaking for the pur-
pose of burglary. J^ex v. Httssell^
1 M. C. C. 377.
A shutter- box partly projected
from a house, and adjoined the side
of the shop window, which was
projected by wooden j)anelling,
lined with iron : — Held, that the
breaking and entering tlie shutter-
box did not constitute burglary.
JRex V. Paine, 7 C. 4fc P. 135—
Demnan, Park, Holland.
A. was charged with breaking
into the house of K. and stealing
the goods of M. It was proved as
to the breaking that the glass of
the window had been cut about a
month before, but that every por-
tion of the glass remained in its
place till he pushed it in, and stole
the goods — Held, a sufficient break-
ing^ Beg. V. Bird, 9 C. <fc P. 44
— bosanquet.
Where, in breaking a window in
order to steal pro]^)erty in the house,
tlie prisoner's finger went within
the house : — ^Held, that there was a
sufficient entry to constitute burg-
larv. JRex v. Davis, R. &, R. C. C.
499.
Throwing up a %\'indow, and in-
troducing an instrument between
such Mdndow and an inside shutter,
to force open the shutter, if the
hand or some part of it is not with-
in the window, is not a sufficient
entry to constitute burglary. Rex
V. Riist, 1 M. C. C. 183.
So where the prisoner raised a
window which was not bolted, and
thrust a crow-bar under the bot-
tom of the shutter (which was
about half a foot within the win-
dow), so as to make an indent on
the inside of the sli utter, but from
the length of the bar his hand was
not inside the house : — Held, that
it was not a sufficient entry to con-
stitute a burglary. Rex v. Roberts^
Car. C. L. 293 ; 2 East, P. C. 487.
Where a window opens upon
hinges, and is fastened by a wedge,
80 that the pushing against it will
68
BURGLARY AND HOUSEBREAKING.
oi^en it ; forcing it open by pushing
against it is a sufficient breaking to
constitute a burglary. Rex v. HaU^
R. & R. C. C; 855.
Removing the fastening of a
window by the hand introduced
through a partially broken pane of
the window, and therebjr opening
the window and entenng, is a
breaking ; not by breaking the res-
idue of the pane, but by unfesten-
ing and opening the window. Rex
V. EoUmm, 1 M. C. C. 327 ; & P.
Ryan v. Shilcock^ 7 Exch. 72.
A chimney is part of a dwelling-
house, and therefore the getting m
at the top is a breaking of the
dwelling-house; and where the pris-
oner, by lowering himself in the
chimney, made an entry into the
dwelling-house, though he did not
enter any of the rooms, it is suffi-
cient to constitute burglary. Rex
V. Brtee, R. & R. C. C. 450.
Pulling down the sash of a win-
dow is a breaking sufficient to con-
stitute burglary, although it has no
fastening, and is only kept in its
place by the pulley-weight, and it
IS equally* a breaking, although
there is an outer shutter which is
not put to. Rex v. Haines^ R. &
R. C. C. 451.
A window was a little open, and
the prisoner pushed it wide open
and got in : — Held, no sufficient
breakmg. Rex v. Smithy Car. C.
L. 293 ; 1 M. C. C. 178.
When the family within the
house was forced by threats and
9 intimidations to let in the offenders
by one of them opening the door :
— ^Held, that it was as much a
breaking by those who made use of
such intimidations without, to pre-
vail upon them so to open it, as if
they had actually burst the door
open. Rex v. Swallow, 2 Russ. C
& M. 9 — Thompson.
On an indictment for burglary,
it was proved the legs of the pris-
oner were seen hanging about a
foot from the ground, from a win-
dow, and no other part of his body
was visible till he jumped down
and ran away : — Held, that though
it appeared there was a hole brdt-
en in the window large enough
to admit a man's head and shoul-
ders, there was no evidence to shew
tliat there had been any actual en-
try, no property being lost. Reg.
V. Meal, 3 Cox, C. C. 70— Coltman.
A servant pretended to concur
with two pei-sons, who proposed to
him to unite with them m robbing
his master's house. The master be-
ing out of town, the servant com-
municated with the police, and act-
ed under their instructions. In con-
sequence of this, a little after nine
o'clock omB evening, he let in one of
the persons, by lifting the latch;
but before that person had taken
any property he was seized by the
police, and, a crow-bar being found
u}X)n him, was immediately placed
in confinement. After this the serv-
ant went out again, and fetched the
second person, and let him in the
same manner. This person was
seized with a basket of plate in his
hand, which he had carried from
the kitchen, part of the way up-
stairs : — Held, that neither of the
persons could be convicted of burg-
lary; but that the one who was
seized 'with the plate might be con-
victed of stealing in a dwelling-
house, and also that the other might
be indicted as an accessory before
the fact to such stealing. Reg, v.
Jones, Car. & M. 218 — Maule and
Rolfe.
3. Breaking Out,
If a person commits a felony in
a house, and breaks out of it in the
night-time, this is burglary, al-
though he might have been law-
fully in the house. Reg. v. Whed-
don, 8 C: & P. 747— Erskine.
On an indictment for stealing wine
out of a cellar, and burglariously
breaking out therefi'om, it appeared
that the prisoner broke out of the
cellar by lifting up a heavy flap by
which tne cellar was closed on the
LODGERS— NIGHT - TIME— DWELLING - HOUSE.
C9
outeide next tlie gtreet ; the flap was
not bolted, but it had bolts : — six
judges were of opinion tliat there
was a sufficient breaking to consti-
tute burglary, but the remaining
six were of a contrary opinion. Hex
V. CaRan.'R. & K. C. C. 157. And
see R&c v; Brown, 2 East, P. C. 487 ;
2Leach,C. C. 1016, n.
The lifting up of a trap-door cov-
ering a cellar, which was merely
kept in its place by its own weight,
and which had no fastenings, be-
cause, it being a new trap-door, they
had not been put on, is not a sufti-
cient breaking to constitute a burg-
lary ; but unlocking and 0}:)ening a
hall door and running away is a suf-
ficient breaking out of tlie house.
Rex V. Lawrence, 4 C. & P. 231 —
Bolland. But, according to Rex v.
Itvma, 1 M. C. C. 377, liftmg the
flap of a cellar, usually kept down
by its own weight, would constitute
buiglary.
4. By Lodgers,
If a lodger in a house has com-
mitted a larceny there, and in the
night-time even Ufts a latch to get
out of tlie house with the stolen
poperty, this is a burglariously
breaking out of the house. Reg. v.
Wkeddon, 8 C. & P. 747— Erskine.
5. What IS Night'time.
By 24 & 25 Vict. c. 96, s. 1, " the
"night shall be deemed to com-
" mence at nine of tlie clock in the
" evening of each day, and to con-
" elude at six of the clock in the
"morning of the next succeeding
"day." ^ (Similar to 7 Will. 4 & 1
Vict, c. 86, repealed,)
In burglary, where the burglary
is one night after, a person present
at the breaking, though not present
at the entering, is in law guilty of
the whole oftence. Rex v. Jordan,
7 C. & P. 432— Gaselee and Gur-
ney.
The prisoner broke the glass of
the prosecutor's side door on the
Friday night, with intent to enter
the house at a ftiture time, and act-
ually entered on the Sunday: — Held,
that this was burglary, although a
day had intervened, the breaking
and entering being both by night,
and the breaking bein^ with intent
afterwards to enter. Rex v. Smith,
R. & R. C. C. 417.
6. What is a Dwelling-house,
[See 24 & 25 Vict. c. 76, s. 53, by
which many of the following
cases are affected, but they are
retained as they may still serve to
illustrate the subject.^
If the outhouse is adjoining to tlie
dwelling-house, and occupied as
parcel thereof, though there is no
common inclosure or curtilage, it
may still be considered as ])art of
the mansion. Rex v. Brown, 2 East,
P. C. 493.
An outhouse in the yard of a
dwelling-house will be parcel of the
dwelling-house if the yard is in-
closed, though the occupier has an-
other dwelling-house opening into
the yard, and he lets such dwelling
house With easements in the yard.
Rex v. Walters, 1 M. C. C. 13.
Two adjoining houses belonging
to two partners, of which the rent
and taxes are paid from the joint
fund, may still be the respective
mansions of each partner, if there is
no communication from one to the
other but through the outer doors
to the street. Rex v. Jones, 1 Leach,
C. C. 537; 2 East, P. C. 504.
A permanent building used and
slept m only for a short time for the
purpose of a fair, may be treated as
the dwelling-house of the person so
occupying it, though unoccupied the
rest of the year. Rex v. Smith, 1 M.
& Rob. 256— Park.
A bursrlary committed in a bank-
er's shop, in which no person slept,
but to which there was a communi-
cation by a trap-door and a ladder
from the upper rooms of the house,
in which only a weekly workman
and his family lived by the permis-
70
BURGLARY AND HOUSEBREAKmG.
sion of the three partners, who were
owners of the whole house, may be
laid to have been committed in the
dwelling-house of these partners,
they inliabiting it by means of their
servant. Rex v. Stocky 2 Leach, C.
C. 1015 ; R. & R. C. C. 185 ; 2
Taunt. 339.
A summer-house used occasion-
ally for tea and - retirement, within
the same inclosure as the house,
though at the distance of about half
a mile, was a building witliin 4 Geo.
2, c. 32. Eex v. m>rris, R. & R.
C. C. 69. And see Rex v. Parker^ 1
Leach, C. C. 320, n.
A building within the same fence
as the dwelling-house, and used with
it as parcel of the dwelUng-Jiouse,
though it has no internal communi-
cation with the house but throujxh
an o])en passage, is parcel of the
dwelling-house. jRex v. Hancock^ R.
& R. C. C. 170.
And such a building is equally
part of the dwelling-house, though
used partly for the separate business
of the occupier of the dwelling-
house, and partly for a business m
wliich he was a partner. lb,
W. let part of his house, viz. a
shop, passage, cellar, &c. to his son,
who did not sleep therein, and there
was a distinct entrance into the son's
part, but his passage led to his fath-
er's cellars, and they were open to
his father's part of the house. The
shop was broken into, and the pris-
oner was convicted thereof: — Held,
that by reason of the internal com-
munication, the son's part continued
part of the father's house, and there-
fore that was burglary. Rex v. Sef-
ton, R. & R. C. C. 202.
A shop adjoining to a house, if
under the same roof, and within the
curtilage, is part of the dwelling-
house^ although there is no internal
communication between the shop
and the house, and although no
l)erson sleeps in the shop. Tiex v.
Gibson, 1 Leach, C. C. 357 ; 2 East,
P. C. 508.
A room in a dwelling, occupied
therewith and under the same roof,
will be deemed part of the dwell-
ing-house, though it has a separate
outer door, and no internal commu-
nication with the rest of the house.
Rex V. Burrowes, 1 M. C. C. 274.
Where the owner of a house has
never by himself, or by any of his
family or servants, slept in the house,
it is not his dwelling-house, so as to
make the breaking in and stealing
goods thereout burglary, though he
has used it for his meals, and all the
purposes of his business. Rex v.
Martin, R. & R. C. C. 108.
Although a man leaves his house,
and never means to reside in it
again, yet, if he uses part of it as a
shop, and lets a servant and his fam-
ily live and sleep in another part of
of it, for fear the place should be
robbed, and lets the rest to lodgers,
the habitation bv his servant and
family is an habitation by him, and
the shop Tvnll be considered as part
of the dwelling-liouse, so as to con-
stitute the breaking thereof bur^
larv. Rex v. Gilmns, R. & R. C.
C. 442.
Tlie prosecutor's house was at the
corner of a street, and adjoining
thereto was a workshop, beyond
which a stable and a coach-house
adjoined; all were used with the
house, and had doors opening into a
yard belonging to the house, which
yard was surrounded by adjoining
buildmgs, so as to be altogether an
inclosed yard ; the workshop had no
internal communication with the
house, and it had a door oi)ening in-
to the street ; its roof was higher
than that of the dwelling house : the
street door of the workshop was
broken open in the night: — ^Ileld,
the workshop was parcel of tlie
dwelling-house. Rex v. Chalking^
R. & R. C. C. 334. [The law laid
down in this case and the six follow-
ing cases is altered bv 24 & 25 Vict
c. 96, s. 53.]
A garret made use of as a work-
shop, and rented with a sleeping-
room by the week, is the mansion of
WHAT IS NOT A DWELLING-HOUSE.
71
\
the lodger, if the landlord does not
sleep under the same roof. Hex v.
CamU, i Leach, C. C. 237 ; 2 East,
P. C. 506.
Lofts over coach-houses and sta-
bles, converted into lodging-rooms,
are the dwelling-houses of their in-
habitants, if there is an outer door.
jBear v. Tttmer, 1 Leach, C. C. 305 ;
2 East, P. C. 492.
An area gate, opening into the
area only, is not part of the dwell-
ing-house so as to make the break-
ing thereof burglary, if there is any
door or festening to prevent persons
in the area from entering the house,
although such door or fastening
mav not be secured at the time. Hex
V. bavu, R. & R. C. C. 322.
A building used with and under
the same roof with a dwelling-
house^ but having no internal com-
munication with it, although open-
ing into an inclosed yard belonging
to the house, and also into an adjoin-
ing street, may be parcel of tlie
dwelling-house, so as to constitute
the breaking and entering thereof a
buTglarv. Hex v. Liihgo^ R. & R.
C. C. 357.
The prisoner broke into a goose-
house opening into the j)rosecutor's
yard, into which his house also
opened; the yard was surrounded
partly by other buildings of the
homestead, and partly by a wall;
some of the buildings had doors
opening backwards, and there was
a gate in one part of the wall
opening upon a road ; this sfoose-
house, was held part of the Swell-
mg-houee, so as to constitute the
breaking: thereof burglary. Rex v.
Cfaj/^ni, R. & R. C. C. 360.
Buildings separated from the
dwelling-house by a public road,
however narrow, will not be a i)ai^
eel of the dwelling-house, so as to
constitute the breaking thereof burg-
lary, if there is no common fence or
rooftocoimect them, although held
by the same tenure, and although
wme of the offices necessary to the
dwelling-house adjoin hereto, and
although there be an awning ex-
tending therefrom to the dwelling-
house. Rex V. Westwood^ R. & R.
C. C. 495.
But if such a building is made a
sleeping place for any of the ser-
vants of the dwelling-house, it may
be deemed a distinct dwelling-house.
7. What is not a Dwelling-house.
A manufactory carried on in the
centre building of a great pile, in
the wings of which several persons
dwelt, but having no internal com-
munication with the same, though
the roofs of all were connected, and
the entrances of all were out of the
same common inclosure :-»— Held, not
a dwelling-house in which burglary
could be committed. Rex v. JEgg-
iiUon, 2 East, P. C. 494, 666 ; 2
Leach, C. C. 913 ; 2 B. & P. 508.
A door which only forms part of
the outwai^i fence of the curtilage,
and opens into no building but in-
to the yard only, is not such a part
of the dwelling-house as that the
breaking thereof will constitute
burglarv. Rex v. Bennett^ R. & R.
C. C. 289.
Where the prosecutor left his
house without any intention of liv-
ing in it again, and intending to use
it as a warehouse only ; thousfh he
had i)erson8 (not of his family) to
sleep in it, to guard the property :
— Held, that it could not be consid-
ered as the dwelling-house of the
prosecutor, so as to support a con-
viction for stealing therein. Rex v.
Flannagan^ R, & R. C. C. 187.
The owner of a house puts a pei^
son into it to sleep there at nights till
he can get a tenant, in order to pro-
tect some furniture there, which he
had purchased of the last tenant,
which servant had so slept there for
three weeks before, but .the owner
never intended to inhabit it himself:
— Held, that a thief could not be
convicted of stealing goods in the
dwelling house of such owner to the-
value of 40«. within 12 Anne, c. 8.
72
BURGLARY AND IIOUSEBREAKIXG.
R&K V. Davis^ 2 East, P. C. 499 ; 2
Leach, C. C. 876.
Or if the owner of a house has no
intention of residing in it himself, it
cannot be considered his. dwelling-
house, although his servant sleeps
in it every night, if his sleeping
there be merely to protect the ftir-
niture. Ih.
A house into which the owner
has only removed his goods, but has
not slept ii^ it, is not his dwelling-
house as to burglary. Hex v.
Thompsofi, 2 Leach, C. C. 771 ; 2
East, P. C. 498.
A nocturnal breaking into a house
of which the owner has no farther
taken possession than by de^x^siting
in it sundry articles of merchandise,
neither he nor any servant of his
having slept in it, is not burglary,
for it cannot be considered as the
dwelling-house of the owner. Hex
V. Hams,2 Leach, C. C.701 ; 2 East,
P. C. 498.
A house under repair, but not in-
habited, is not the dwelling-house
of the owner, though part of his
property is deposited therein. Rex
V. Lyons^ 1 Leach, C, C. 185 ; 2 East,
P. C. 497, diflferentlv reported : S,
P., Rex V. FvJU&r, 1 Leach, C. C.
186, n.
A porter lying in a warehouse
does not make it a dwelling-house.
Rex V. Smith, 2 East, P. C. 497 ; 2
Leach, C. C. 1018, n. And see Rex
y, Brovm, 2 East, P. C. 501 ; 2 Leach,
C, C, 1018, n.
On the trial of an indictment for
burglary, it appeared that adjoining
to the prosecutor's dwelling-house
was a kiln, one end of wliich was
supported by the end wall of the
dwelling-house, and that adjoining
to the kiln was a dairy, one end of
which wes supported by the end wall
of the kiln. There was no intornavl
communication from the dwelling-
bouse to ttie dairy, and the roofs of
dwelling-house, kiln and dairy were
of different heights: — Held, that
the dairy was not part of the dwell-
ing'housejand that a burglary could
not be committed by breaking into
it. Reg. v. Higgs, 2 C. & K. 322-
Wilde.
8. Breaking into Churches and Placet
of Divine Worship,
By 24 & 25 Vict. c. 96, s. 50,
"whosoever shall break and en-
"ter any church, chapel, meeting-
'' house or other place of divine
" worship,- and commit any fel-
" ony therein, or being in any
"church, chajxil, meeting-house or
" other place of divine worsliip shall
" commit any felony therein and
" break out of the same, shall be
" guilty of felony, and, being con-
" victed thereof, shall he liable, at
" the discretion of the court, to be
" kept in penal servitude for life, or
"for any term not less than five
" years (27 & 28 Vict. c. 47), or to
"be imprisoned for any term not
" exceeding two years, with or with-
" out hard labour, and with or witli-
" out solitary confinement." {Pre-
viotis provisions, 7 <fc 8 Geo. 4, c. 29,
s. 10.)
By 8. 57, " whosoever slmll break
"and enter any dwelling-house,
"church, chapel, meeting-house or
" other place of divine worship, or
" any building within the curtila^,
" school-house, shop, ware-house or
" counting-house, with intent to com-
"mit any felony therein, sliall be
" guilty of felony, and, being con-
" victed thereof, sliall be Uable, at
" the discretion of the court, to be
"kept in penal servitude for any
"term not exceeding seven years
" and not less than five years (27 &
" 28 Vict. c. 47), or to be imprison-
" ed for any term not exceeding two
"years, with or without liard la-
" bour, and with or without solitary
" confinement."
By 7 & 8 Geo. 4, c. 27, 23 Hen. .
8, c. 1, was wholly repealed, and so
much of 1 Edw. 6, c. 12, as related
to this subject; and 24 <jb 25 Vict,
c. 95, repealed 7 & 8 Geo. 4, c. 29,
8. 16, and 7 Will. 4 & 1 Vict. c. 90,
s. 2.
THE CURTILAGE.
73
A dfi^nting meeting-house was
not within 7 & 8 Geo. 4, c. 29^ s. 10,
which made it a capital offence to
"hreak and enter any church or
chapel, and steal therein." Hex v.
Richardson, 6 C. & P. 335 ; S, P.
Rex Y. Warren, 6 C. & P. 335, n.
A prisoner was indicted under 7
& 8 Geo. 4, c. 29, s. 10, for break-
ing and entering a chapel, and steal-
ing seyeral fixtures, and a bell not
fixed. The chapel was a Wesley-
an chapel, and not a chapel of the
Church of England : — Held, that
the case must be confined to the
act of simple larceny for stealing
the bell. liex v. Nixon, 7 C. & P.
442— Patteson and Gurney.
If a church tower is built higher
than the church, and has a separate
roof, but has no outer door, and is
cmly accessible from the body of the
church, from which it is not sepa-
rated by any partition ; this tower
is a part of the church \^dthin 7 & 8
Geo. 4. c. 29, s. 10. Bex v. Wheeler,
3 C. <fc P. 585— Parke.
The provisions of 1 Edw. 6, c. 12,
8* 10, were not confined to goods
used for divine service ; they ex-
tended to articles kept in the church
to keep it in repair, and therefore a
conviction on an indictment on that
act, for stealing a snatch-block to
raise weights in case the bells want-
ed repairing, and an iron pot for
charcoal, used to air the vaults, was
held right. Rex v. Rourke, R. &
R. C. C. 386.
To warrant a conviction for break-
ing and entering a church under 7
& 8 Geo. 4, c. 29, s. 10, there must
been a stealing therein of some chat-
tel. Stealing a fixture was not suf-
ficient But if the stealing of fix-
tures was averred in such count,
the prisoner might be convicted
amply thereof under s. 44. Reg, v.
Baker, 3 Cox, C. C. 581— Alderson.
The vestry of a church was brok-
en open and robbed. It was form-
ed mit of what befoi-e had been
a church porch, but had a door
opening into the churchyard, which
could only be unlocked from the in-
side : — Held, that this vestry was
part of the fabric of the church, and
within the meaning of an indictment
for sacrilegiously breaking and en-
tering the church. Reg. v. Evans,
Car. & M. 298— Coleridge.
A. and B. w^ere indicted for sacri-
legiously breaking into a church and
stealing a box and money : — Held,
first, that the box (under the cir-
cumstances) was not aflixed to the
freehold, but was constructively in
the possession of the vicar and
church-wardens. Reg. v. Wortley,
1 Den. C. C. 162.
Held, secondly, that the property
was rightly laid in the vicar and
others, in their individual names.
Ih.
Burglary may be committed in a
church at common law. Reg, v.
Baker, 3 Cox, C. C. 581 — Alderson.
9. The Curtilage.
By 24 & 25 Vict. c. 96, s. 53,
" no building, altogether within the
"same curtilage with any dwell-
"ing-house, and occupied therewith,
" shall be deemed to be part of such
" dwelling-house for any of the pur-
" poses of this act, imless there shall
" be a communication between such
" building and dwelling-house, eith-
" er immediate or by means 'of a
" covered and inclosed passage lead-
"ing from the one to the other."
(Fanner provision, 7 & 8 Geo. 4, c.
29, s. 14.)
On the trial of an indictment for
breaking into a building within the
curtilage, under 7 & 8 Geo. 4, c.
29, 8. 14, it appeared, that the build-
ing was in the fold-yard of the pro-
secutor's farm ; and that, to get
from his dwelling-house to the
fold-yard, it was necessary to pass
through a yard called the pump-
yard, into which the back-door of
the dwelling-house opened, the
pump-yard being separated fi-om
fold-yard by a wall four feet high,
in which there was a gate, the fold-
yard ha\Tng another gate leading
74
BURGLARY AND HOUSEBREAKING. .
to fields on one side, a hedge, with
a gate leading to the high road, on
another, the otlier sides of the fold-
yard being bounded by the farm-
buildings and a continuous wall
from the (i welling-house : — Held,
that the building was within the cur-
tilage. Reg. V. Gilbert^ 1 C. & K,
84 — Wightman.
10. Ownership,
A gardener living in a house of
his master, quite separate from the
dwellinjy-house of his master, and
the gardener had the entire control
of the house he lived in, and kept
the key : — Held, that, on an indict-
ment for burglary, the gardener's
house might be laid either as his or
as his master's. Rex v. Rees^ 7. C.
& P. 568.
The apartments of lodgers will be
considered as their respective dwell-
ing-houses, if the owner of the prem-
ises does not sleep under the same
roof. Rex v. Rogers, 1 Leach, C.
C. 89 ; 2 East, P. C. 506.
A house, the whole of which is
let out in lodgings, and has only one
outer door common to all its in-
mates, is the mansion house of its
several inhabitantvS. Rex v. IVap-
shaw, 1 Leach, C. C. 427 ; 2 East,
P. C. 506, 780.
Thougch a servant lives rent-free
for the purpose of his service in a
a house provided for that purpose ;
yet, if he has the exclusive posses-
sion, and it is not parcel of any
premises which his master occupies,
it mav be described as the house of
the servant ; especially if the house
belongs not to his master, but to
some person paramount to his mast-
er; as in the case of a toll-collector's
house, occupied by the servant of
the lessee of the tolls, for the pur-
pose of collecting the tolls. Rex v.
CamfieM, 1 M. C. C. 42.
If two or more rent of the same
owner different jjarts of the same
house, so as to have amongst them
the whole house, and the owner
does not reserve or occupy any part
of it, the separate part of each may
be described as the dwelHng-houfe
of each. Rex v. Bailey, 1 M. C. C.
23.
A house the joint property of
partners in trade, and in whicb tbdr
business is carried on, mav be de-
scribed as the dwelling-house of all
the partners, though only one of
them resides in it. Rex v. Athta, 1
M. C. C. 329.
If a married woman takes a house,
in which a burglary is committed,
the house must be laid as the house
of the husband, although she is liv-
ing separate from him. Rex v.
^yth, 5 C. & P. 201— Tenterden.
The house of a husband in which
he allows his wife to live separate
from him, may be described in an
indictment for burglary, as the
house of the husband, although the
wife lived there in adulterv \\ith an-
other man, who paid the housekeep-
ing expenses ; and although the
husband suspected a criminal inter-
course between his wife and the
other man when he allowed her to
live separate. Rex v. Wilford, R
& R. C. C. 517v
Where a mamed woman lived
apart from her husband, u}X)n an
income arising from property vested
in 'trustees for her separate use :—
Held, that a house which she had
hired to live in was, in an indictmait
for burglary, properly described as
her husoand's dwellin^r-house, al-
though she paid the rent out of her
separate property, and the husband
had never been in it. Rex x,
French, R. & R. C. C. 491.
If a servant lives in a house of
his master's at a vearly rent, tiie
house cannot be described as the
master's house, though it is on the
premises where the master's busi-
ness is carried on, and although the
servant has it because of his serv-
ices. Rex V. Jarvis, 1 ]M. C. C. 7.
Where a servant had part of a
house for his own occupation, and
the rest, in which a burglary is
committed, is reserved by flie pro-
INTENT.
75
prictor for other purposes, the part
reseired cannot be deemed part of
the ^rvant's dwelling-house. Rex
T. mk<m,^.& R. C.C.I 15.
And it will be the same if any
other person has part of the house,
and the rest is reserved. Tb.
If the owner of a house suffers a
person to live in it rent-free, it may
be stated, in an indictment for break-
ing into such house in the day-time,
to be that person's house ; such per-
son being tenant at will. Ilex v.
CWfetf, R. & R. C. C. 498.
A burglary in the apartments of
officers of a public company must
be laid to be in the mansion-house
of aich company. Rex v. Hawkins^
2East,P. C. 501.
So of the apartments of a college
not occupied by the students, as the
butterv. Rex v. Maynard^ 2 East,
P.C.501.
Where one, under pretence of be-
ing robbed, forced the door of a
guest's cliamber in an inn, at night,
and stole his goods : — Held, that
the burglary must be laid to be in
the dwelUng-house of the innkeeper,
and not of the guest. Rex v. Pros-
^, 2 East, P. C. 502.
If a buivlary is conunitted in the
house of a trading company, in the
house belonging to which an agent
of the company resides, with his
fiunily, for the purpose of carrying
on the business, it may be laid to be
the dwelling-house of the agent, al-
tiiough the rent is paid and the lease
is held bv the company. Rex v.
Marg€tts, 2 Leach, C. C.*930.
Though a servant lives rent-free
in a house belonging to an insurance
company, and the company pays
the taxes, and the company's busi-
pess is carried on in the house, yet
if the servant and his family are the
only j)en*ons who sleep in the house,
and the part m which the company's
bofdness is carried on is at all times
open to those parts in which the
f^nant lives, it may be stated as
the servant's house, though the only
part entered bv the tliief was that
in which the company's business
was carried on; and though tlie
judfifes would not say that it might
not have been described as the com-
pany's house, they thought it mi<jht.
With equal propriety, be described
as the house of the servant. Rex v.
Witt, ] M. C. C. 248.
If a house is let to A., and a ware-
house under the same roof, and with
an internal communication to the
house, to A. and B. ; the warehou^,
in an indictment for bui'glary, can-
not be described as the dwelling-
house of A. Rex V. JenkiTiSy R. <fc
R. C. C. 244.
If the owner of a cottage lets one
of his workmen, with his family,
live in the cottage free of rent and
taxes, and he hves there principally,
if not wholly, for his own benefit,
it may be described as the work-
man's dwelling-house in an indict-
ment for burglary. Rex v. JoUing,
R. & R. C. C. 525.
In an indictment for burglary in
the workhouse of a poor law imion,
the workhouse being under 5 4fc 6
Will. 4, c. 69, s. 7, may be described
as the dwelling-house of the guardi-
ans of the poor of that union. Sem-
ble, that the workhouse cannot bq
described as the dwelling-house of
the master of the workhouse. Reg,
V. Frowm, 4 Cox, C. C. 266— Piatt,
A. was in the service of B. and
lived in a house close to B.'s place
of business. B. did not live in the
house himself, but he paid the rent
and taxes. A. paid nothing for his
occupation. Part of the house was
used as store-rooms for B.'s goods :
— ^Held, that this was the dwelling-
house of B., and was improperly
described in the indictment as the
dwelling-house of A. Reg. v. Court-
enay, 5 Cox, C. C. 218.
11. Intent,
Breakinsf and entering a house
in the night-time to recover tea,
which had been seized, is no burg-
lary, being intended for the benefit
76
BURGLARY AND HOUSEBREAKING.
of the supposed owner. Hex v.
Knight, 2 East, P. C. 510.
If several agree to commit a burg-
lary, but one communicates tlie in-
tent to an officer, that he may take
the other two, and the officer is
upon the watch accordingly; the
person who has made that commu-
nication to the officer will not be
particeps criminis in the burglary,
although he is present when it is
committed, and pretends to assist
the other two, but in fact ex])edites
their apprehension. Hex. v. Dan-
nelly, R. & R. C. C. 310 ; 2 Marsh,
571.
Nor will it make any difference,
although his object in detecting is
to obtain for himself (by previous
agreement with the officer) part of
a reward that will be payable on
conviction. Ih,
On an indictment for burglary,
where any part of the person of the
prisoner is within the dwelling-
house, no matter with what im-
mediate intent, there is a sufficient
entry to constitute the offence, and
therefore, where the hand was
proved to have been inside the
house, it is immaterial whether it
was there for the purpose of lifting
up a window, or of abstracting
property. But where no part of
the prisoner's body is inside the
premises, but he introduces an in-
strument within it for the mere pur-
pose of effecting an entry, and not
with any other object. Semble,
that the entry is not complete.
Reg, V. O'Brien, 4 Cox, C. C. 398
— Patteson.
12. Armed vnth Intent to Break or
Enter,
By 24 & 25 Vict. c. 96, s. 58,
" whosoever shall be found by night
" armed with any dangerous or of-
" fensive weapon or instrument
" whatsoever, with intent to break
" or enter into any dwelling-house
" or other building whatsoever, and
" to commit any felony therein, or
" shall be found by night having in
"his possession without lawful ex-
" cuse (the proof of which excuse
" shall lie on such person) any pick-
" lock key, crow, jack, bit, or otiier
" implement of house-breaking, or
" shall be found by night having
" his face blackened, or otherwise
" disguised with intent to commit
" any felony, or shall be found by
" night in any dwelling-house or
" other building whatsoever with in-
" tent to commit any felony there-
" in, shall be guilty of a misde-
" meanor." {Precisefy similar to
former enactments, 14 & 15 Vict. c.
19, 6. 1.)
By 8. 59, "whosoever shall be
"convicted of any such misde-
" meanor as in the last preceding
" section mentioned, committed aft-
" er a previous conviction, either
" for felony or such misdemeanor,
" shall on such subsequent connc-
" tion be liable, at the discretion of
" the court, to be kept in penal
" servitude for any term not ex-
" ceeding ten years and not less
"than five years (27 & 28 Yict.c
" 47), or to be imprisoned for any
" term not exceeding two years,
" with or without hard labour."
(Former provision, 14 <& 15 Vict.c.
19, 6. 2.)
Keys are implements of house-
breaking within the statute; for
though commonly used for lawful
purposes, they are capable of being
employed for purposes of house-
breaking, and It is a question for
the jury whether the person found
in possession of them by night had
them without lawful excuse, and
with the intention of using them as
implements of housebreakiusf. Beg,
V. Oldham, 2 Den. C. C. 472 ; 3 C.
& K. 249 ; 16 Jur. 5,05 ; 21 L. J.,
M. C. 134; 5 Cox, C. C. 551.
Semble, per Maule, J., that the
printed copy of the section of the
statute is wrongly punctuated, and
that the word key is within the ex-
press terms of the statute. Ih,
An intent to commit felony forms
no ingredient of the oftence of be-
STEALING IN A DWELLING-HOUSE.
77
ing found by night in the posses-
ma of housebreaking instruments
without lawiiil excuse. -Ke<7. v.
BttiUy, Dears. C. C. 244 ; 17 Jur.
1106; 23 L. J., M. C. 13 ; 6 Cox,
C. C. 241.
Where persons are charged, un-
der 24 & 25 Vict. c. 96, s. 58, with
bemg found by night armed with
an "onensive weapon, with intent to
break and enter into a dwelling-
house or other building, and to
eommit a felony therein, the par-
ticular house or building must be
specified in the indictment, and
proof giy en of their intent to break
and enter such house or building.
Seg. T. Jarrald, 9 Cox, C. C. 307 ;
L (fc C. 301 ; 9 Jur., N. S. 629 ;
32 L J., M. C. 258; 11 W. R.
787;8L.T.,N. S. 515.
When several persons are found
out together by night for the com-
mon purpose of housebreaking, and
one only is in possession of the house-
breaking implements, all may be
found guilty of the misdemeanor of
being found by night in possession
of implements of housebreaking,
without lawful excuse, under 24 &
25 Vict. e. 96, s. 58, for the posses-
ion of one is in such case the pos-
8«son of all. jReg, v. Thompson,
21 L. T., N. S. 397— C. C. R.
13. StedHng in a Dwelling -house.
The 7 <fc 8 Geo. 4, c. 27, repealed
23 Hen. 8, c. 1, and so much of 1
Sdw. 6, c. 12, as related to house-
l>reaking, and 39 Eliz. c. 15, 3 Will.
A ^l c. 9, 10 Will. 3, c. 12, vulgo
10 & 11 Will. 3, c. 23, and 12
Ann. Bt 1, c. 7 ; and 24 & 25 Vict.
c95, repeals 7 & 8 Geo. 4, c. 29,
8. 12, 3 & 4 Wm, 4, c. 34, 7 Will.
4 & 1 Vict. c. 90, 6. 1, and 7 Will,
4A 1 Vict. c.*86, 8.5.
A. was indicted for breaking and
entering a dwelling-house, and steal-
^ certain specified goods. At the
tiine of breaking and entering, the
good« named in the indictaient were
not in the house, but there were
other goods there belonging to the
prosecutor. The jury found that
he was not guilty of the felony
charged, but that he was guilty of
breaking and entering the dwelling-
house of the prosecutor, and at-
tempting to steal his goods therein :
Held, that there was no attempt to
commit the felony charged within
14 & 15 Vict. c. 100, s. 9, and there-
fore the verdict could not be sus-
tained. jReg.'Y, APPherson, Dears.
& B. C. C. 197 ; 3 Jur., N. S. 523 ;
26 L. J., M. C. 134 ; 7 Cox, C. C.
281.
An indictment for feloniously
breaking and entering a dwelling-
house, with intent feloniously to
steal therein, and not for actually
stealing, cannot be sustained, the
felony created by 7 & 8 Geo. 4, c.
29, s. 12, being entering and steal-
ing. Reg, V. Wenmouth, 8 Cox, C.
C. 348— Keating.
A prisoner was indicted for break-
ing into the house of Elizabeth A.
and stealing her goods. There was
a second count laying the property
of the goods in the Queen. It was
shown by proof of the record that
the husband of Elizabeth A. had
been convicted of felony, and it
was also proved that lie was in
prison under his sentence, and that
the articles stolen were his before
his conviction, and had remained
in the house froni the time of his
apprehension, and that the wife con-
tinued in the possession of the house
and goods till they were stolen : —
Held, that the prisoner might be
properly convict^ of larceny on
the second count, which laid the
property of the goods in the Queen,
although there had been no office
found, and that he could not be
convicted of housebreaking, as that
part of the indictment which laid
the goods and the house to be those
of Elizabeth A. could not be sup-
ported. Reg, Y. Whitehead^ 9 C. &
JP. 429.
A. was charged with breaking
into the house of E., and stealing
the goods of M. It was proved by
BURGLARY AND HOUSEBREAKING.
M. that K., bis brother-in-law, bad
taken the house, and that M. (who
lived on his property) carried on
the trade of a silversmith for the
benefit of K. and his family, having
himself neither a share in the profits
nor a salary. M. stated that he had
authority to sell any part of the
stock, and might take money from
the till, but that he should tell K.
of it ; and that he sometimes bought
goods for the shop, and sometimes
fc did it: — Held, that M. was a
bailee, and that the goods in the
shop might properly be laid as his
property. Beg, v. Bird, 9 C. & P.
44 — Bosanquet .
14. In Schools, Shops, Warehouses
or Counting-Hovses,
By 24 & 25 Vict. c. 96, s. 56,
' whosoever shall break and enter
* any dwelling-house, school-house,
* shop, warehouse or counting-house,
* and conmiit any felony therein, ox,
' being in any dwelling-house,8chool-
* house, shop, warehouse or count-
' ing-house, shall commit any felony
* therein, and break out of the same,
' shall be guilty of felony." {Form-
er provisions y 7 & 8 Geo. 4, c. 29,
ss. 12, 15.)
By s. 57, "whosoever shall break
"and enter any dwelling-house,
" church, chapel, meeting-house, or
" other place of divine worship, or
" any building within the curtilage,
" school-house, shop, warehouse, or
" coimting-house, with intent tocom-
"mit any felony therein, shall be
"guilty of felony."
Shops,"] — A shop, to be within
the 7 <fc 8 Geo. 4, c. 29, s. 15, and
7 Will. 4 & 1 Vict. c. 90, s. 2,
must be a shop for the sale of
goods, and a mere workshop will
not be sufficient. Reg, v. Sanders,
9 C. & P. 79— Alderson.
An opening of a door in a shop
under the same roof where the pris-
oner lived as a servant, for the pur-
pose of committing a felony, was a
breaking and entering within 7 & 8
Geo. 4, c. 29, g. 12. Beg. v. Wen-
mouth, 8 Cox, C. C. 348— Keat-
ing.
On an indictment under 24 & 25
Vict. c. 96, s. 57, for felonionsly
breaking and entering a shop vi^
intent to commit a felony; a pris-
oner may be foimd guilty of nus-
demeanor in attempting to commit
that felony. Reg, v. Sain, 9 Cox,
But a person who breaks into %'
blacksmith's shop and steals goods
there, might be convicted of break-
ing into a shop and stealing goods,
under 7 & 8 Geo. 4, c. 29, s. 15.
Reg, V. CaHer, 1 C. <fc K. 173—
J)enman.
Warehouses.] — A cellar used mere-
ly for the deposit of goods intended
for removal and sale is a warehouse.
Reg, V. Hill, 2 M. & Rob. 458-
Rolfe.
Counting - houses, ] — A building
formed partly of premises employed
as chemical works; it was com-*
monly called the machine-house, a
weighing machine being there,
where all the goods set out were
weighed, and a book being kept
there in which entries of the goods
so weighed were made. The ac-
count of the time of the workmen
employed in the works was kept in
this place, the wages of the men
were paid there ; the books in which
the entries of time and the paym«it
of wages were entered were brought
to the building for the purpose of
making entries and paying wages,
but at other times they were kept
in what was called the office, where
the general books and accounts of
the concern were kept*: — Held, that
this building was properly described
in an indictment as a comitiDg-
house withiu 7 ifc 8 Geo. 4, c. 29, s.
15. Reg. v. Potter, 2 Den. C. C.
235; 3C. <fcK.179; T.&M.561;
15 Jur. 498; 20 L. J., M. C. 170;
5 Cox, C. C. 187.
INDICTMENT.
79
15. Parties Indictable,
A room door wvls latched, and
one person lifted the latch and en-
tered the room and concealed him-
selfj for the purpose of committing
a robbery there, which he after-
wards accomplished. Two other
persons were present with him at
the time he lifted the latch, for the
purpose of assisting him to enter,
and screened him from observation
by opening an umbrella,.: — Held,
that the two were in law parties to
the breaking and entering, and were
answerable for the robbery which
took place afterwards, though they
were not near the spot at the time
when it was perpetrated. ^Mex v.
JmUm, 7 Car. & P. 432— Gaseiee
and Gumey.
Wliere, on an indictment for
privately stealing in a shop, it ap-
peared that there were several act-
ing together, some in the shop, and
some out, for the purpose of assist-
bg those in the shop, and the prop-
erty was stolen by the hands of one of
those who were in the shop : — Held,
that those who wei:e on the outside
were equally guilty as principals.
Aa; V. Gogerit/, R. & R. C. C. 343.
Upon an indictment against a
party as an accessory after the fact
m robbery, proof of the prisoner's
knowledge of the felony, together
with proof of his aiding the princi-
pal in disposing of the fruits of the
robbery, is suiUcient evidence of
comforting and assisting, to support
the indicmient. Heg. v. Butterfield,
1 Cox, C. C. 39— Maule.
1 6. Indictment,
A house may be described as in
the possession of the actual occu-
pier, though his possession iswrong-
fuL Bex V. Warns, 1 M. C. C. 344.
A prisoner was indicted for burg-
liry in the dwelling-house of B.
B. worked for W., who did carpen-
tor's work for a public company,
and put B. into the house, which
belonged to the company, to take
care of it, and some mills adjoin*
ing. B. received no more wages
after than before he went to live in
the house : — Held, not rightly laid.
Rex V. Eawlins, 7 C. & P. 150—
Gaselee.
An indictment for burglary stat-
ing in one count that the prisoner
" did break to get out," and in an-
other that he did. break and get
out, was sufficient, since the 7 & 8
Geo. 4, c. 29, s. 11, which used the
words break out. Bex v. Cotnpton,
7 C. & P. 139— Vaughan and Pat-
teson.
An indictment on 7 Will. 4 & 1
Vict. c. 86, s. 2, for the capital of-
fence of burglary and striking, must
have charged both the burglary and
the striking, and the proof must cor-
respond with the indictment. Beg,
V. Farfitt, 8 C. & P. 288— Alder-
son.
A. was indicted for a burglary in
the house of S. W., and striking D.
James. The burglary was proved
as laid, but the person struck was
D. Jones : — Held, that the prisoner
must be acquitted of the capital
charge, and convicted of burglary
only. lb.
It is sufficient in an indictment
for burglary to allege that the of-
fence was committed burglariously,
without stating the time at which
the offence was committed, or even
that it was done in the night time.
Beg. V. Thompson, 2 Cox, C. C,
445 — Patteson. Contrd Bex v.
Waddington, 2 East, P. C. 513.
It must be alleged and proved,
either that a felony was committed
in the dwelling-house, or that the
party broke and entered with intent
to commit some felony within the
same. Bex v. Dobbs, 2 East, P. C.
513.
And whatever be the felony real-
ly intended, the same must be laid
in the indictment, and proved agree-
ably to the fact. Bex v. Vander-
comb, 2 East, P. C. 514, 517; 2
Leach, C. C. 708.
But the same fact may be laid
with several intents. Bex v. 7%omp.
80-
l^URGLARY AND HOUSEBRE^iKIXG.
son, 2 East, R C. 515; 2 Leach,
C. C. 1105, n. .
An indictment for burglary ,charg.
ing in one count an intent to steal
the goods of the owner, and in an-
other an intent to murder him, is
good, for it is the same fact and
evidence, only, laid in different
ways. lb.
The name of the owner of the
house is essential in an indictment
for burglary, and for stealing in the
dwelling-house. Hex v. White, 1
Leach, C. C. 252; 2 East, 513,780;
S. P. Rex V. Woodward, 1 Leach,
C. C. 253, n. .
A corporation must prosecute in
its corporate name ; and the addi-
tion of such a name as a description
of the persons of which the corpora-
tion is comi)osed is not sufficient in
an indictment. Rex v. Patrick, 1
Leach, C. C. 253 ; 2 East, P. C.
1059.
An indictment for burglariously
breaking and entering the house of
A., with intent to steal the goods of
B., is bad, if no person of that name
had any property in the house.
Rex V. Jems, 2 Leach, C. C. 774 ;
2 East, P. C. 514.
An indictment alleging that J.
F., late of the parish of fT, in the
county of M., witli force and arms,
at the parish aforesaid, in the county
aforesaid, the dwelling-house of the
guardians of the poor of the P.
Union, there situate, feloniously did
break and enter, is a sufficient de-
scription of the situation of the
work-house, the word, " there situ-
ate," referring not to the union, but
to the parish before mentioned.
Reg, V. Frowm, 4 Cox, C. C. 266—
Piatt.
It is sufficient to allege that the
burglary was committed at a
place, naming it, e. g., " at Nor-
ton-juxta-Kempsey, in the coun-
ty aforesaid," without stating the
place to be a parish, vill, chapelry,
or the like. Iteg. v. Brookes, Car.
& M. 544 — ^Patteson.
An indictment for breaking into
a warehouse, and stealing goods,
stated the offence to have been com-
mitted in " the parish of St. Peter
the Great, in the county of W.'*
The only part of the parish of St
Peter the Great is in the county of
W.: — Held, that indictment could
not be supported for the breaking
into the warehouse, but that it was
sufficient for the larceny ; and that,
to be good as to the breaking, it
should ha-^e charged the offence to
have been committed " in that part
of the parish of St. Peter the Great
which lies within the county of W."
An indictment for burglaiy charg-
ed the prisoner with breaking, in the
night-time, into the dwelling-house
of E. B. " with intent the goods and
chattels in the same dwelling-house
then and there being feloniously
and burglariously to steal, and steal-
ing the goods of E. B," It was
proved that the house was that of
E. B., but that the goods the pris-
oner stole were the joint property
of E. B. and two others : — Held,
that, if it was proved that the pris-
oner broke into the house of E. B.
ynih intent to steal the goods there
generally, that would be sufficient
to sustain the charge of burglary
contained in the indictment, without
proof of an intent to steal the goods
of the particular person whose goods
the indictment charged that he did
steal. Reg. v. Clarke, 1 C. <& E.
421 — Coleridge.
An indictment for house-break-
ing, after charging the breaking
and entering in the usual form,
charged that the prisoner "forty-
two pieces of the current gold com
of this realm, called sovereigns, of
the value of 42/., in the same dwell-
ing house then and there beine found,
then and there feloniously did steal
and carry away, " is good, and the
words " then and there," in the last
allegation, are sufficient without the
words " in the same dwelling-house"
being added to them. Reg, v. An-
drews^ Car. & M. 121 — Coleridge.
EVIDENCE AND TRIAL.
81
An indictment which charges
that the prisoner unlawfully broke
and entered the dwelling-house of
R. P., " with intent the goods and
chattels in the dwelling-house then
and there being then and there fel-
oniously to steal, take and carry
away," is good, although it does
not state whose goods the prisoner
mtended to steiil. Meg, v. Lawes^
1 a & K. 62— Erskine.
The alterations made in the law
irith respect to burglary, by 7 Will.
4 ifc 1 Vict. c. 86, as to the hours,
and as to the punishment, did not
make it necessary for an indictment
to that offence to conclude contra
forman statnti, as the alteration
«rith respect to the hours did not alter
the offence, and the mere diminu-
tion of the punishment did not make
that conclusion necessary. Reg, v.
/*c%, 1 C. & K. 77— Erskine.
17. Evidence and THal.
On an indictment for burglary
by breaking into a house in the
night-time, and stealing to the value
of 5/. or more, the prisoner might
be convicted of burglary, or of
house-breaking, under 7 <fc 8 Geo.
4, c 29, s. 1 2, or of stealing in a
dwelling-house to the value of 5/.
iScc T. Compton, 3 C. & P. 418—
Gaselee.
On an indictment for burglary,
the prisoner may be acquitted of
the breaking, and found guilty of
stealing m the dwelling-house. Hex
r. Wi&al, 1 Leach, C. C. 88 ; 2
East,P. C. 515, 517.
If a prisoner is charged with a
burglary and stealing the goods, the
prosecutor, on failing to prove that
these facts were committed on the
day laid in the indictment, cannot
be admitted to prove that the lar-
ceny was committed on a prior day.
-Sec V. Vandercomb, 2 Leach, C. C.
^08;2East,P. C. 519.
On an indictment for burglar-
iously breaking and entering a
dwelling-house, (omitting the words
** with mtent to steal") and then
FisiL Dig.— 6
and there stealing goods therein, the
prisoner may be well convicted of
the burglary if the larceny be prov-
ed : secus if not. Hex v. Fumival^
R. & R. C. C. 445.
Upon an indictment for burglary
and larceny against two, one may
be found guilty of the' burglary and
larceny, and the other of the larceny
only. Rex v. BuMerwortk, R. & R.
C. C. 520.
When the felony is laid to con-
stitute the burglary, an acquittal
of the burglary is an acquittal of
stealing in the dwelling-house. Rex
V. Comer, 1 Leach, C. C. 36.
Where a party is indicted both
for burglary and feloniously steal-
ing in the dwelling-house, aud is
acquitted of the burglary, bi^t found
giulty of the stealing, the verdict
should be entered 3ius : " Jury
say not guilty of breaking and en-
tering the dwelling-house in the
night, but guilty of stealing the
(property) in the dwelling-house."
JKex V. nungerford, 2 East, P. C.
518 ; 1 Leach, C. C. 88.
On a charge of burglary, posses-
sion by the prisoners of part of the
stolen property very soon after the
burglary, with an account given of
it not reasonable or credible, is suf-
ficient primS, facie evidence, with-
out express evidence to falsify it.
It is so, however, only if, upon all
the circumstances in the case, the
account given is not reasonably
credible. Reg. v. McaU, 4 F. & F.
922— Pollock.
Upon a trial for breaking into a
booking-office at a railway station,
evidence was admitted that the
prisoners had, on the same night,
broken into three other bookmg-
offices belonging to three other sta-
tions on the same railway, the four
cases being all mixed up together.
Reg, V. Gohden, 3 F. & F. 833—
Bramwell. See Reg, v. Rearden, 4
F. & F. 76— Willes.
In an indictment for burglary,
the entry was proved, to have been
effected by breaking open a window
82
COINING.
at the back of a house : — ^Held, that
the correspondence of the prisoner's
shoe with an impression in the front
garden, not proved to have been
made during the night, was not any
evidence to go to the jury to show
a connexion with such entry. Seg,
V. Coots, 2 Cox, C. C. 188-«Pol-
lock.
On the night following the com-
mission of a burglary, two boys
were found concealed in a corn-
chest in an open gig-house with
which they were not in any way
connected, and half a mile from the
house of the prosecutor. Outside
the corn-chest was found some of
the stolen property, and on the loft
over the gig-house was found an-
other portion of the stolen property :
— ^Held, that there was no evidence
to go to the jury of possession by
the boys of any of the stolen arti-
cles. Ih.
IX. Coining.
1. Statutet, 82.
2. Interpretation^ 82.
3. What is Coining, 83.
4. Colouring f 85.
5. Impairing or Lightening Gold or
Silver Coin, 85. 186.
6. Buying or S^ing Counterfeit Coin,
7. Exchanging Coin at higher than its
Value, 87.
8. Importing or Exporting Counterfeit
Coin, 87. •
9. Defacing Gold, Silver or Copper
Coin, 87.
10. Testing Genuineness of Gold or
Silver Coin, 87.
1 1. Counterfeiting and uttering Copper
Coin, 88.
1 2. Counterfeiting and uttering Foreign
Coin, 89.
13. Implements of Coining, 90.
1 4. Unlawful Possession of Base Coin,
Filings or Clippings, 93.
15. Uttering, 94.
16. When Offence complete, 97.
17. Evidence, 98.
IS. Previous Conviction, 98.
19. Validity of Convictions and Com-
mitments, 99.
20. Conveying Coining Tools or Coin
from the Mint tnthout Authority,
99.
21 . Power to seize Counterfeit Coin and
Coining Tools, 99.
22. Apprehension of Offenders, 99.
23. Prosecution and Trial of Offm-
ders, 100.
24. Punishment of Offenders, 100.
25. CosU of ProsectUion, 100.
26. Actions against Persons acting in
pursuance of the Statute, 101.
1. Statutes.
2 & 3 Will. 4, c. 34, repealed 8
& 9 Will. 3, c. 26, and 15 Geo. 2,
c. 28, 11 Geo. 3, c. 40, 37 Geo. 3,
c. 126, and 24 & 25 Vict. c. 95, s.
1, repeals 2 & 3 Will, 4, c. 34 ; 6irf
s. 2 reserves repeal of enactments ex-
tending to the colonies.
The 16 & 17 Vict. c. 48, "ei-
" tends the punishment of offences
" committed against the coinage of
" the realm to the colonies."
The 24 & 25 Vict. c. 99, " is the
"act of 1861, consolidating the
" statute law of the United King-
" dom against offences relating to
" the coin, and which, by s. 43,
" commenced and took effect on the
" 1st November, 1861."
2. Interpretation.
Current Gold and Silver Coin,^ —
By s. 1, "in the interpretation of
" and for the purposes of the act,
" the expression, ' the Queen's cur-
" rent gold or silver coin' shall in-
" elude any gold or silver coin coin-
" ed in any of her Majesty's mints,
" or lawfully current, by virtue of
" any proclamation or otherwise, in
" any part of her Majesty's domin-
" ions, whether within the United
" Kingdom or otherwise.
Copper Coin.'] — "And the ex-
" pression ' the Queen's copper coin'
" shall include any copier coin and
" any coin of bronze or mixed metal
"coined in any of her Majesty's
" mints, or lawfully current by vir-
" tue of any proclamation or other-
" wise, in any part of her Majesty's
" said dominions."
False or Counterfeit Coin.] — "And
" the expression * false or counter-
" feit com, resembling or apparent-
WHAT IS commG.
83
" ly intended to resemble or pass
"for any of the Queen's current
"gold or silver coin/ shall include
" any of the current coin which shall
"have been gilt, silvered, washed,
"coloured, or cased over, or in any
" manner altered, so as to resemble
"or be apparently intended to re-
"semble or pass for any of the
" Queen's current coin of a higher
" denomination.'-
Ourrent Cain,'] — "And the ex-
" pression * the Queen's current coin '
"diali include any coin coined in
"any of her Majesty's mints, or
"lawinlly current, by virtue of any
" proclamation or otherwise, in any
" part of her Majesty's said domin-
"ions, and whether made of gold,
"silver, copper, bronze', or mixed
"metal."
What SkaU be Possession.'] — " And
"where the having any matter in
" the custody or possession of any
"person is mentioned in this act, it
" shall include, not only the having
"of it by himself in his personal
" custody or possession, but also the
" knowingly and wilfully having it
" in the actual custody or posses-
"aon of any other person, and also
" the knowingly and wilfully hav-
"inffit in any dwelling-house or
"other building, lodging, apart-
" ment, field or other place, open
"or inclosed, whether belonging to
" or occupied by himself or not, and
" whether such matter shall be so
" had for his own use or benefit or
"for that of any other person."
The defendant was indicted for
obtaining a die impressed as a sov-
ereign.
The 24 & 25 Vict. c. 99, s. 24,
makes it a felony to have in custody,
or possession (inter alia), a die im-
posed with the apparent resem-
olance of both or either of the sides
of any of the Queen's current gold
or alver coin, without lawful au-
thority or excuse, (the proof where-
of shall Ue on the accused.)
Held, first, that an indictment
under this section should allege pos-
session without lawful authority or
excuse, but that an indictment
which charged possession without
lawful excuse was sufiicient, as ex-
cuse would include authority.
Secondlv, that the words "the
proof whereof shall lie on the ac-
cused," only shift the burden of
proof, and do not alter the char-
acter of the offence :
That the fact that the mint au-
thorities, upon information forward-
ed to them, gave authority to the
die-maker to make the die, and that
the police gave permission to him
to give the die to the prisoner who
ordered him to make, did not con-
stitute lawful authority or excuse
for prisoner's possession of the die.
Bee/. V. Harvet/, 11 Cox. C. C. 662.
3. What is Coining,
By 24 & 25 Vict. c. 99, s. 2,
" whosoever shall falsely make or
" counterfeit any coin resembling or
" apparently intended to resemble
" or pass for any of the Queen's cur-
" rent gold or silver coin, shall, in
" England and Ireland, be guilty
" of felony, and in Scotland of a
" high crime and offence, and being
" convicted thereof, shall be liable,
" a^ the discretion of the court, to
" be kept fh penal servitude for life,
" or for any term not less than five
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not
"exceeding two years, with or
" without hard labour, and with or
" or without solitary confinement."
(Former provision^ 2 & 3 Will. 4,
c. 34, s. 3.
By s. 13, " whosoever shall, with
" intent to defraud, tender, utter, or
" put off, as or for any of the Queen's
" current gold or silver coin, any
" coin not being such current gold
" or silver coin, or any medal or
" piece of metal or mixed metals
" resembling in size, figure, and col-
" our the current com as or for
" which the same shall be so ten-
84
COINING.
"dered, uttered, or put off, such
" coin, medal, or piece of metal or
" mixed metals so tendered, uttered,
" or put off being of less value than
" the current coin as or for which
" the same shall be so tendered, ut-
" tered or put off, shall, in England
" and Ireland, be guilty of a mis-
" demeanor, and in Scotland of a
" crime and offence, and being con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
" imprisoned for any term not ex-
" ceeding one year, with or without
" hard labour, and with or without
" solitary confinement."
On an indictment under 2 & 3
Will. 4, c. 34, s, 7, for uttering a
piece of false and counterfeit coin,
apparently intended to resemble
and pass for a piece of the Queen's
good and legal current coin, it is a
question for the jury whether the
coin produced supported the indict-
ment, and if they should be of opin-
ion that the coin was not intended
by the maker to pass as good coin,
they should acqmt. Heg, v. Byrne,
6 Cox, C. C. 475. (Ir.) C. C. R.
A person was indicted for utter-
ing a counterfeit coin, intended to
resemble and pass for a groat. All
the witnesses for the prosecution,
except the inspector of coin for the
mint, called it a fourpenny piece.
The inspector called it a groat, and
said ho believed that it fiad that
name from the earliest period. He
added, that the original groat of
Edward the Third's reign was larg-
er and heavier than the coin in
question; and that, in the Queen's
proclamation, these coins were call-
ed both groats and fourpenny-
pieces. The proclamation was not
produced, and the inscription on the
coin itself was fourpence : — Held,
that if the jury, from their own
knowledge of the English language
without considering any evidence
at all, was of opinion that a groat
and fourpenny-piece were the same,
prisoner was nghtly indicted, and
might be convicted. Heg, v. Coju
neU, 1 C. <fc K. 190 -Maule and
Erskine.
A person was indicted for utter-
ing a medal resembling in size, fig-
ure, and colour one of the Queen's
current gold coins, called a half
sovereign. At the trial the medal
was produced by a witness, who
stated that it was the same in diam-
eter as a half sovereign, and some-
what similar in colour ; that on the
obverse was the head of the Queen
similar to that on a half sovereign,
but that the legend was different ;
when about to describe tbe reverse,
the coin accidentally dropped and
was lost. The medal had not been
shewn to the jury, and secondary
evidence was not given of what was
on the reverse : — ^Held, that there
was evidence to go to the jury that
the medal resembled in figure a cur
rent coin. Heg. v. Robinson^ L. <fe
C. 604 ; 10 Cox, C. C. 107 ; 11 Jur.,
N . S. 452; S4 L. J., M. C. 176; 13
W. R. 727 ; 12 L. T., N. S. 501.
It is not necessary, to constitute
the offence of coining, that there
should be an impression on the
counterfeit, if it resembles the com-
mon worn coin. Rex v. Welch, 1
East, P. C. 87, 164 ; 1 Leach C. C.
364.
A counterfeit shilling produced
in evidence, although it is quite
smooth, and there is no impression
of any sort discernible on it, ^all
support an indictment for coimter-
feiting to the similitude of the legal
coin. Ih,
To make a round blank like the
smooth shillings in circulation, the
original impression on which has
been effaced by wear, is counterfeit-
ing to the likeness and similitude of
the good legal and current coin of
the realm called a shilling. Rex v.
Wilson, 1 Leach, C. C. 285.
It is a question of fact whether or
not counterfeit coin was made to re-
semble the real coin. Rex v. Welch,
1 East, P. C. 87, 164 ; 1 Leach, C.
C. 364.
Proof that a man occasionally
COLOURING-IMPAIRING.
85
visited coiners ; that the rattling of
money was occasionally heard with
them; that he was seen conntiug
something, as if it was money, when
he left them ; that on coming to
their lodgings just after the appre-
hension ne endeavored to escape,
and was found to have bad money
aboat him ; is not sufficient evidence
to implicate him as counselling, pro-
caring, aiding, and abetting the coin-
ers. Rex V. Isaacs, 1 Russ. C. & M.
62— Bayley.
4. Colouring,
By 24 & 25 Vict. c. 99, s. 3,
" whosoever shall gild or silver, or
"shall, with any wash or materials
" capable of producing the colour or
" appearance of gold or silver, or by
"any means whatsoever, wash, case
"over, or colour any coin whatso-
" ever, resembling or apparently in-
" tended to resemble or pass for any
"of the Queen's current gold or sil-
"vercoin; or shall gild or silver,
"or sliall, with any wash or mate-
" rials capable of producing the col- j
"our or appearance of gold or of j
" silver, or by any means whatsoev-
" er, wash, case over, or colour any
"piece of silver or copper, or of
" coarse gold or coarse silver, or of
" any metal or mixture of metals re-
" spectively, being of a fit size and
"figure to be coined, and with in-
" tent that the same shall be coined
"into false and counterfeit coin re-
"sembling or apparently intended
" to resemble or pass for any of the
"Queen's current gold or silver
" coin ; or shall gild, or shall, with
" any wash or materials capable of
" producing the colour or appearance
" of gold or by any means whatsoev-
" er, wash, case over or colour any of
" the Queen's current silver coin, or
" file or in any manner alter such
" coin, with intent to make the same
"resenable or pass for any of the
" Queen's current gold coin ; or
" shall gUd or silver, or shall with
" any wash or materials capable of
"producing the colour or appear-
" ance of gold or silver, or by any
" means whatsoever, wash, case
" over, or colour any of the Queen's
" current copi)er coin, or file or in any
" manner alter such coin, with in-
"tent to make the same resemble
" or pass for any of the Queen's
" current gold or silver coin, shall,
" in England and Ireland, be guilty
" of felony, and in Scotland of a
" high crime and offence, and, being
" convicted thereof, shall be liable,
" at the discretion of the court, to
" be kept in penal servitude for Ufe,
" or for any term not less than five
'" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not
" exceeding two years, with or with-
" out hard labour, and with or with-
" out solitary confinement." (J^or-
mer provision, 2 & 3 Will. 4, c. 34,
s. 4.)
An indictment charging the gild-
ing sixpences with materials capa-
ble of producing the colour of gold,
is good, and supported by proof of
colouring sixpences with gold. Reg.
V. Turner, 2 M. C. C. 42.
Preparing blanks with such ma-
terials, as when rubbed would make
them resemble the real coin, was a
colouring within 8 & 9 Will. 3, c.
26, before the resemblance has been
])roduced by such friction. Rex v.
Case, 1 East, P. C. 165 ; 1 Leach,
C. C. 154, n.
So, bringing to the surface the la-
tent silver in a blank of mixed met-
al, by dipping it in aquafortis
which corrodes the base metal,
was a colouring within that stat-
ute. Rex V. Lavy, 1 East, P. C.
166 ; 1 Leach, C. C. 153. And see
Rex V. Harris, 1 Leach, C. C. 135.
5. Impairing or Lightening Gold or
Silver Coin.
By 24 & 25 Vict. c. 99, s. 4, " who-
" soever shall impair, diminish or
" lighten any of the Queen's current
"gold or silver coin, with intent
" that the coin so impaired, dimin-
" ished or lightened may pass for the
" Queen's current gold or silver coin.
86
comma
" shall, in England and Ireland, be
" guilty of felony, and in Scotland
" of a high crime and offence, and
" being convicted thereof shall be
" liable, at the discretion of the
" court, to be kept in penal servi-
" tude for any term not exceeding
"fourteen years, and not less than
" five years (27 & 28 Vict. c. 47),
" or to be imprisoned for any term
" not exceeding two years, with or
"without hard labour, and with
" or without solitary confinement."
(F&rmer provision^ 2 & 3 Will. 4, c.
34, 8. 5.)
6. Buying or selling ComUerfeit^
Coin,
By 24 & 25 Vict. c. 99, s. 6,
" whosoever, without lawful author-
" ity or excuse (the proof whereof
"shall lie on the party accused),
" shall buy, sell, receive, pay, or put
" off, or offer to buy, sell, receive,
" pay, or put off, any false or coun-
" terfeit coin, resembling or appar-
" ently intended to resemble or pass
" for any of the Queen's current
" gold or silver coin, at or for a low-
" er rate or value than the same im-
" ports or was apparently intended
" to import, shall, in England and
" Ireland, be guilty of felony, and
" in Scotland of a higli crime and
" offence, and being convicted there-
" of shall be liable, at the discretion
" of the court, to be kept in penal
" servitude for life, or for -any term
" not less than five years (27 & 28
"Vict. c. 47), or to be imprisoned
" for any term not exceedmg two
"years, with or without hard la-
" hour, and with or without solitary
" confinement ; "
" And in any indictment for any
" such offence, it shall be sufiicient
"to allege that the party accused
" did buy, sell, receive, [)ay, or put
" off, or did offer to buy, sell, re-
" ceive, pay, or put off, the false or
" counterfeit coin at or for a lower
" rate or value than the same imports
" or was apparently intended to im-
" port, without alleging at orfor what
" rate, price or value the same was
" bought, sold, received, paid, or
" put off, or offered to be bought,
" sold, received, paid, or put oC*
{Former provisions j 8 & 9 Will. 3, c.
26, s. 6, and 2 & ^ Will. 4, c. 34,
s. 6.)
An indictment on 8 & 9 Will. 3,
c. 26, 6. 6, stated that five counter-
feit shillings were paid and put off
for two shillings ; the proof was that
five bad shillings were sold for half-
a-crown : — Held, that the variance
was fatal, as it was a contract which
must be correctly proved as laid.
Rex V. Joyce ^ Car. C. L. 1 Si-
Thompson and Heath.
In an indictment for putting off
counterfeit money, at a lower rate
than its denomination imports, it
was alleged that the prisoner put off
a counterfeit sovereign and three
counterfeit shillings for the sum of
five shillings ; the proof was, that
the prisoner said he would let the
witness have a bad sovereign at
four shillings, and three bad shil-
lings at one shilling, and the witn&s
paid for them with two good half-
crowns : — Held, that this proof sup-
ported the allegation. Rex v. Hed-
ges, 3 C. & P. 410— Vaughan.
Where, on a bargain for the
sale of counterfeit money, the price
had been agreed upon and the pris-
oner had produced the coin, but the
complete transfer was prevented by
the appearance of the police officers:
— Held, that it did not amount to a
putting off within 8 & 9 Will. 3, c.
26. Mex V. Wboldridge, 1 Leach,
C. C. 307 ; 1 East, P. C. 1 69.
An indictment on 8 & 9 Will 3,
c. 26, s. 6, for puttins: off bad mon-
ey, must have stated that it was
" not cut in pieces." Rex v. Palmer^
1 Leach, C. C. 102.
In an indictment for putthig off
counterfeit money, the names of the
persons to whom it was put off
ought to be set out. Anon. 1 East,
P. C. 180— Holt.
TESTING GENUINENESS.
87
7. Exchanging Coin at higlier than
its Value.
Theexchanscing guineas for bank-
notes, taking the guineas in such ex-
change at a higher value than they
were current for by tlie king's proc-
bmation, was not an offence against
5 <fe 6 Edw. 6, c. 1 9. {Repealed by
56 Geo. 3, c. 68.) Bex v. Be Ymge,
14 East, 402.
8. Importing or Exportiiig Covn-
terfeit Coin.
Imparting.] — ^By 24 & 25 Vict.
c 99, s. 7, "whosoever, without
** lawful authority or excuse (the
"proof whereof shall lie on the
"party accused), shall import or
"receive into the United Kingdom,
" from beyond the seas, any false or
" counterfeit coin resembling or ap-
" parently intended to resemble or
" pass for any of the Queen's cur-
"rent gold or silver coin, knowing
"the same to be false or counter-
"feit, shall, in England and Ireland
" be ffuilty of felony, and in Scot-
" land of a high crime and offence,
" and being convicted thereof, shall
" be liable, at the discretion of the
"court, to be kept in penal servi-
" tude for life, or for any term hot
" less than five years (27 & 28 Vict.
" c. 47), or to be imprisoned for any
"term not exceedmg two years,
" with or without hard labour, and
" with or without solitary confine-
" ment." {Former provision, 2 & 3
Will. 4, c. 34, s. 6.)
u
a
u
u
a
u
u
a
u
Sorting.] — By b. 8, "whoso-
ever, without lawful authority or
excuse (the proof whereof shall
lie on the party accused), shall
exj)ort, or put on board any ship,
vessel or boat for the purpose of be-
ing exported from the United King-
dom, any false or counterfeit coin,
resembling or apparently intended
to resemble or pass for any of the
Queen's current coin, knowing the
same to be false or counterfeit,
shall, in England and Ireland, be
" guilty of a misdemeanor, and be-
" ing convicted thereof shall be lia-
" ble, at the discretion of the court,
" to be imprisoned for any term not
" exceeding two years, with or
" without hard labour, and with or
" without solitary confinement."
9. Defacing Gold, Silver or Copper
Coin.
By 24 & 25 Vict. c. 09, s. 16,
" whosoever shall deface any of the
" Queen's current gold, silver or
" copper coin, by stamping thereon
" any names or words, whether such
" coin shall or sliall not be thereby
" diminished or lightened, shall, in
" England and Ireland be guilty of
" a misdemeanor, and in Scotland
" of a crime and offence, and, being
" convicted thereof, shall be liable,
" at the discretion of the court, to be
"imprisoned for any term not ex-
" cecding one year, with or without
" hard labour." {Former provision,
16 & 17 Vict. c. 102, 8. 1.)
By s. 17, " no tender of payment
" in money made in any gold, silver
" or copi)er coin so defaced by
" stampmg as in the last preceding
" section mentioned shall be allow-
" ed to be a legal tender ; and who-
" soever shall tender, utter or put
" off any coin so defaced, shall on
" conviction thereof before two jus-
" tices, be liable to forfeit and pay
" any sum not exceeding 405. : pro-
" vided that it shall not be lawful
" for any person to proceed for any
" such last-mentioned penalty with-
"out the consent, m England or
" Ireland, of her Majesty's attomey-
" general for England or Ireland
" respectively, or m Scotland of the
" lord advocate." {Former provis-
ion,!^ & 17 Vict. c. 102, s. 2.)
10. Testing Geriuineness of Gold or
Silver Coin.
By 24 & 25 Vict. c. 99, s. 26,
" where any coin shall be tendered
" as the Queen's current gold or sil-
" ver coin to any person who shall
" suspect the same to be diminish-
88
COINING.
" ed otherwise than by reasonable
" wearing, or to be counterfeit, it
" shall be lawful for such person to
" cut, break, bend or deface such
'' coin, and if any coin so cut, brok-
" en, bent or defaced shall appear
" to be diminished otherwise than
" by reasonable wearing, or to be
" covniterfeit, the person tendering
" the same shall bear the loss there-
" of ; but if the same shall be of due
"weight, and shall appear to be
" lawful coin, the person cutting,
" breaking, bending or defacing the
" same is hereby required to receive
" the same at the rate it was coined
" for ; and if any dispute shall arise
" whether the coin so cut, broken,
" bent or defaced be diminished in
" manner aforesaid, or counterfeit,
"it shall be heard and finally de-
"termined in a summary manner
" by any justice of the peace, who
" is empowered to examine upon
" oath as well the parties as any
" other person, in order to the de-
" cision of such dispute ; and the
" tellers at the receipt of her Maj-
" esty's Exchequer, and their dep-
" uties and clerks, and the receivers-
" general of every branch of her
" Majesty's revenue, are hereby re-
" qijired to cut, break, or deface, or
" cause to be cut, broken or defaced,
" every piece of counterfeit or un-
" lawfully diminished gold or silver
"coin which shall be tendered to
" them in payment for any part of
" her Majesty's revenue." {Former
provision^ 2 <fc 3 Will. 4, c. 34, s.
13.)
11. CovnterfeUing and tittering
Copper Coin.
Ccnmterfeiting,]— By 24 & 25 Vict,
c. 99, s. 14, " whosoever shall false-
" ly make or counterfeit any coin,
" resembling or apparently intended
" to resemble or pass for any of the
" Queen's current copper coin ; and
" whosoever, without lawful author-
" ity or excuse (the proof whereof
" shall lie on the party accused),
" shall knowingly make or mend,
" or begin or proceed to make or
" mend, or buy or sell, or have in
" his custody or possession, any in-
" strument, tool, or engine adapted
" and intended for the counteifeit-
" ing any of the Queen's current
" copper coin ; or shall buy, sell,
" receive, pay, or put oif, or offer
" to buy, sell, receive, pay, or
" put off, any false or counter-
" terfeit coin, resembling, or appar-
" ently intended to resemble or pass
" for any of the Queen's current
" copper coin, at or for a lower rate
" or value than the same imports,
" or was apparently intended to im-
" port, shall, in England and te-
" land, be guilty of felony, and in
" Scotland of a high crime and of-
" fence, and being convicted thereof,
" shall be liable, at the discretion
" of the court, to be kept in i^enal
" servitude for any term not exceed-
" ing seven years, and not less than
" five years (27 & 28 Vict. c. 47),
" or to be imprisoned for any term
" not exceeding two years, with or
" without hard labour, and with
" or without solitary confinement.
Former provision, 2 <fc 3 Will. 4. c.
34, s. 12.)
Uttering.] — ^By s. 15, " whoso-
" ever shall tender, utter or put off
" any false or counterfeit com, re-
" sembling or apparently intended
" to resemble or pass for any of
" the Queen's current copper coin,
" knowing the same to be false or
" counterfeit, or shall have in his
" custody or possession three or
" more pieces of false or counterfeit
" coin, resembling, or apparently
" intended to resemble or pass for
" any of the Queen's current copper
" coin, knowing the same to be fal)3e
" or counterfeit, and with intent to
utter or put off the same or any
of them, shall, in England and Ire-
" land, be guilty of a misdemeanor,
" and in Scotland of a crime and
" offence, and being convicted there-
" of, shall be liable, at the discretion
" of the court, to be imprisoned for
«
FOREIGN COIN.
89
" any term not exceeding one year,
" with or without hard labour, and
" with or without solitary confine-
" ment"
Bffore these Enactments,^ — Utter-
ing or tendering in payment coun-
terfeit copper money was not an in-
dictable offence. Rexy. Cinoany 1
East, P. C. 182.
12. Counterfeiting andvUering For-
eigti Coin.
Gold and JSilver.]— By 24 & 25
Vict. c. 99, s. 18, " whosoever shall
'* make or counterfeit any kind of
" coin, not being tlie Queen's cur-
" rent gold or silver coin, but re-
" serabling or apparently intended
" to resemble or pass for any gold
" or silver coin of any foreign prince,
" Ftate, or country, shall, in Eng-
"land and Ii*eland, be guilty of fel-
" onv, and ui Scotland of a hifi:h crime
" and offence, and being convicted
" thereof, shall be liable, at the dis-
" cretion of the court, to be kept
"in ])enal servitude for any term
"not exceeding seven years, and
" not less than five years (27 & 28
"Vict. c. 47), or to be imprisoned
" for any term not exceeding two
"years, with or without hard la-
" hour, and vnth or without soli-
" tary confinement." (Former pro-
titicn, 37 Geo. 3, c. 126, s. 2.)
By s. 19, " whosoever, without
"lawful authority or excuse (the
"proof whereof shall lie on the
"party accused), shall bring or re-
"ceive into the United Kingdom
anv such false or counterfeit coin,
resembling or apparently intended
" to resemble or pass for any gold
"or silver coin of any foreign
" prince, state, or country, know^ing
" the same to be false or counter-
" feit, shall, in England and Ireland,
"be guilty of felony, and, being
" convicted thereof, shall be liable,
" at the di<«retion of the court, to
" be kept in penal servitude for any
" term not exceeding seven years,
" and not less than five, years (27
"A 28 Vict. C.47), or to be im-
" prisoned for any term not exceed-
" ing two years, with or without
"hard labour, and with or without
" solitary confinement." {Former
provision, 37 Geo. 3, c. 126, s. 3.)
Uttering.'] — ^By s. 20, " whoso-
" ever shall tender, utter, or put off
" any such false or counterfeit coin,
" resembling or apparently intended
" to resemble or pass for any gold
" or silver coin of any foreign
" prince, state, or country, knowing
"the same to be false or counter-
" feit, shall, in England and Ire-
" land, be guilty of a misdemeanor,
" and being convicted thereof shall
" be liable, at the discretion of the
" court, to be imj)risoned for any
" term not exceeding six months,
" with or without hard labour."
(Former provision y 37 Geo. 3, c. 126,
s. 4.)
Second and Third Offences.] —
By s. 21, " whosoever, having been
" so convicted as in the last preced-
" ing section mentioned, shall after-
" wards commit the like offence of
" tendering, uttering, or putting off
" any such false or counterfeit coin
" as aforesaid, knowing the same to
" be false or counterfeit, shall, in
" England and Ireland, be guilty
" of a misdemeanor, and, being con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
** imprisoned for any term not ex-
" ceeding two years, with or with-
" out hard Idbour, and with or
" without solitary confinement ; and
" whosoever, having been so con-
" victed of a second ofience, shall
" afterwards commit the like offence
" of tendering, uttering, or putting
" off any such false or counterfeit
" coin as aforesaid, knowing the
" same to be false or counterfeit,
" shall, in England and Ireland, be
" guilty of felony, and in Scotland
" of a high crime and ofience, and,
" being convicted thereof, shall be
" liable, at the discretion of the
90
COINING.
((
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" court, to be kept in penal serv-
" itude for life, or for any term not
"less than three years; or to be
" imprisoned for any term not ex-
* * ceeding two years, with or with-
" out hard labour, and with or
" indthout solitary confinement."
Foreign Copper Coin.'] — By s. 22,
" whosoever shall falsely make or
" counterfeit any kind of coin, not
" being tlie Queen's current coin,
" but resembling or apparently in-
" tended to resomble or pass for any
" copj^er coin, or any other coin
" made of any metal or mixed met-
" al^ of less value than the silver
"coin of any foreign prince, state,
" or country, shall, in England and
"Ireland, be guilty of a misde-
" meauor, and being convicted
" thereof, shall be liable, at the dis-
" cretion of the court, for the first
" offence, to be imprisoned for any
term not exceeding one year, and
for the second offence, to be kept
" in penal servitude for any term
"not exceeding seven years, and
" not less than 1cl\q years (27 & 28
" Vict. c. 47), or to be imprisoned
" for any term not exceeding two
" years, with or without hard la-
" hour, and with or without solitary
" confinement." (Former provision^
43 Geo. 3, c. 139, s. 3.)
Unlawful Possession.] — By s. 23,
" whosoever, without lawful author-
" ity or excuse (the proof whereof
" shall lie on the party accused),
*' shall have in his custody or posses-
" sion any greater number of pieces
" than five pieces of false or coun-
" terfeit coin, resembling or appar-
" ently intended to resemble or pass
" for any gold or silver coin of any
" foreign prince, state, or country,
" or any such copper or other coin
" as in the last preceding section
" mentioned, shall, on conviction
"thereof before any justice of the
" peace, forfeit and lose all such false
" and counterfeit coin, which shall
" be cut in pieces and destroyed by
" order of justice, and shall for every
" such offence forfeit and pay any
" sum of money not exceeding 40*.,
" nor less than 10«. for every such
" piece of false and counterfeit coin
" which shall be found in the cus-
" tody or possession of such person,
" one moiety to the informer, and the
" other moiety to the poor of the
" parish where such offence shall be
" committed ; and in case any such
" penalty shall not be forthwith
"paid, it shall be lawful for any
" such justice to commit the person
" who shall have been adjudged to
" pay the same to the common gaol
" or house of correction, there to be
" kept to hard labour for the spa<*
" of three months, or until such
" penalty shall be paid." {Former
provisions, 37 Geo. 3, c. 126, s. 6,
and 43 Geo. 3, c. 139, s. 6.)
13. Implements of Coining.
By 24 & 25 Vict. c. 99, s. 24,
whosoever, without lawful au-
thority or excuse (the proof where-
of shall lie on the party accused),
shall knowingly make or mend, or
begin or proceed to make or mend,
or buy or sell, or have in his cus-
tody, or possession, any punchecai,
counter puncheon, matrix, stamp,
die, pattern, or mould in or upon
which there shall be made or im-
pressed, or which will make or
impress, or which shall be adapt-
ed and intended to make or im-
press, the figure, stamp, or appar-
ent resemblance of both or either
of the sides of any of the Queen's
current gold or silver coin, or of
any coin of any foreign prince,
state, or country, or any part or
parts of both or either of such
sides ; or shall make or mend, or
begin or proceed to make or mend,
or shall buy or sell, or have in his
custody or possession, any edger,
edging or other tool, collar, in-
strument, or engine adapted and
intended for the marking of coin
round the edges with letters, grain-
ings, or other marks, or figures
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IMPLEMENTS OF COINING.
91
*' apparently resembling those on
"the edges of any such coin as in
" this section aforesaid, kno\dng the
" same to be so adapted and intend-
" ed as aforesaid ; or shall make or
" mend, or begin or proceed to make
"or mend, or shall buy or sell, or
" have in his custody or possession,
" any press for coinage, or any cut-
" ting engine for cutting by force
" of a screw or of any other contriv-
" ance, round blanks out of gold,
" silver, or other metal or mixture
"of metals, or any other machine,
"knowing such press to be a press
" for coinage, or knowing such en-
"gtoe or machine to have been
" used, or to be intended to be used,
" for or in order to the false making
" or counterfeiting of any such coin
" as in this section aforesaid, shall,
"in England and Ireland, be guilty
"oif felony, and, being convicted
" thereof, shall be liable, at the dis-
" cretion of the court, to be kept in
" penal servitude for life, or for any
" term not less than five years (27 &
"28 Vict. c. 47), or to be impris-
"onedforany term not exceeding
"two years, with or without hard
" labour, and i^-ith or without soli-
" tarv confinement." (Former pro-
vitioki, 2 & 3 Will. 4, c. 84, s. 10,
flwf 8 & 9 Will. 3, c. 26.
A galvanic battery is a machine
within the meaning of the 24 <& 25
Vict. c. 99, s. 24. Heg. v. Gover^
9Coi, C. C. 282— Chambers, C. S.
TTie prisoner employed a die-
anker to make, for a pretended in-
nocent purpose, a die calculated to
make shillings. The die-sinker, sus-
pecting fraud, informed the com-
mmoners of the mint, and, under
their directions, made the die, for
the purpose of detecting the pris-
oner:—Held, that the die-sinker
was an innocent agent, and the pris-
oner rightly convicted as a pnnci-
pal under 2 & 3 Will. 4, c. 84, s.
10. Seg, V. Bannen, 2 M. C. C.
809;1C. &K. 295.
A., with the intent of coining
counterfeit half dollars of Peru,
procured dies in this country for
stamping and imitating such coin.
He was apprehended before he had
obtained the metal and chemical
preparations necessary for making
counterfeit coin : — Held, that the
procuring the dies was an act in
furtherance of the criminal purpose,
sufficiently proximate to the offence
intended, and sufficiently evidencing
the criminal intent to support an in-
dictment founded on it for a misde-
meanor, although the same facts
would not have supported an in-
dictment for attempting to make
counterfeit coin. Heg. v. Hoherts^
Dears. C. C. 539 ; 1 Jur., N. S.
1094; 25 L. J., M. C. 17 ; 7 Cox,
The jury a!teo found that he in-
tended to make only a few counter-
feit coins in England, with a view
merely of testing the completeness
of the apparatus before he sent it
out to Peru : — Held, that even to
make a few coins in England with
that object, would be to commit
the offence of making counterfeit
coins within the statute. Ih,
An indictment that the prisoner
feloniously had in his possession a
mould, "upon which mould were
made and impressed the figure and
resemblance " of the obverse side of
a sixpence, is bad, as not sufficiently
showing that the impression was on
the mould at the time when the pris-
oner had it in his possession; but a
fresh indictment with the words
" then and there " before the words
" made and impressed," is good.
Reg. V. Richmond^ 1 C. & K. 240 ;
1 Cox, C. C. 9--Rolfe.
Where a coining mould is made
and impressed to resemble the ob-
verse of a coin, which is partly de-
faced by wear, the indictment
should be in the form above men-
tioned, as the words of the 2 & 3
Will. 4, c. 34, s. 10, as to moulds
to resemble part of the obverse of a
coin, relate to cases where several
moulds put together would make
the obverse of 3ie coin. Ih,
92
COINING.
A first couDt charged the pris-
oners with having in their posses-
sion a mould intended to impress
the stamp of the reverse side of a
shilling ; the second stated, that the
mould was intended to impress the
obverse side ; the third stated, that
it was intended to impress part or
parts of the reverse side ; and the
fourth stated the same as to the ob-
verse side. A verdict of guilty hav-
ing been recorded, a motion was
made in arrest of judgment, on the
ground that the two last counts
were bad for uncertainty, where-
•upon the judge directed another in-
dictment to be prefen'ed. The sec-
ond indictment contained the two
first counts of the f)revious one ; a
third and fourth stated, that the
mould was intended to impress
parts of the obverse and parts of
the reverse sides ; a fifth and sixth
used the word " part " instead of
parts. The prisoner pleaded autre-
fois convict. The twelve judges
decided that the plea was bad, and
confirmed tlie second conviction.
Hex V. PhtUtps, 1 Jur., /427.
Where coining implements were
found in the house occupied by a
man, his wife, and a child ten years
of age, the jury was directed to ac-
quit the child of a felonious posses-
sion. Jieg. V. BoobeVy 4 Cox, C.
C. 272.
If coining implements are found
in a house occupied by a man and
his wife, the presumption is, that
they are in possession of the hus-
band alone : unless there are circum-
stances to shew that the wife was
acting separately and without her
husband's sanction, they cannot
both be convicted. Ih.
The fact of a wife attempting
to break up coining implements at
the time of her husband's appre-
hension, if done with the object of
screening him, is no evidence of a
guilty possession. Ih,
The prisoner was indicted for
knowingly and without lawful ex-
cuse having in his custody and pos-
session a mould on which were im-
pressed the figure and apparent re-
semblance of the obverse side of a
half-crown. Tlie mould wa« found
in the house of the piisoner, who
had previously passed a bad lialf-
crown ; but there was no evidence
to shew that the half-crown had
been in the mould: — Held, tliat
there was sufficient evidence to go
to the jury. Reg. v. Weeki^ L. k
C. 18 ; 8 Cox, C. C. 455 ; 7 Jur.,
N. S. 472 ; 30 L. J., M. C. 141 ; 9
W. R. 553 ; 4 L. T., N. S. 373.
On an indictment on 2 & 3 Will.
4, c. 34, s. 10, for the felony of mak-
ing a mould '^ intended to make and
impress the figure and apparent re-
semblance of the obverse side" of
a shilling, it was sufficient to prove
that the prisoner made the mould
and a part of the impression though
he had not completed the entire im-
pression. Rex V. Foster^ 7 C. <fc P.
495 — Patteson.
To convict a prisoner under the
2 & 3 Will. 4, c. 34, s. 10, of the
felony of having in his possession a
mould, upon which was impressed
the resemblance of the obverse side
of a shilling, the jury must be satis-
fied that, at the time he had it in
his possession, the whole of the ob-
verse side of the shilling was im-
pressed on the mould : a part is not
sufficient. Ih.
On an indictment for haviiig
in possession a die made of iron
and steel, proof of a die made
of other material, or of both, wiD
be sufficient ; for it is immaterial to
the offi^nce of what the die is made.
Rex V. Oxford, R. & R. C. C. 382.
Upon an indictment against a
party under 2 & 3 Will. 4, c. 34, &
10, for having in his possession a
mould, upon which was made and
impressed the figure, on one of the
sides, of a shilling, it was not suffi-
cient to shew that the prisoner had
in his possession a mould, on one
side of which there was a perfect
impression, but without a channel
through which the metal ran, unless
m^TLAWFDX POSSESSION.
93
it could also be shown that coin could
be made by it. H^g* v. MacMiUan^
1 Cox, C. C. 41— Maule.
A press for coinage was a tool or
an iB^rument within that branch
of the 8 <fc 9 Will. 3, c. 26, which
made it treason to have the same
knowinirlv in the party's custody.
BezY.^U, 1 East, P. C. 169.
So having knowingly in posses-
sion a puncheon for the purpose of
coming, though that alone, without
the counter puncheon, would not
make the figure. Rex v. Ridgelayy
1 East, P. C. 171 ; 1 Leach, 0. C.
189.
So a collar of iron, for graining
the edges of counterfeit money, was
an instniment, although it was to
be used in a coining press. Rex v.
Moore, 2 C. & P. 235 ; L M. C. C.
122.
So a mould of lead, having the
gtamp of one side of a shilling, was
a tool or an instrument. jRex v.
Lennard, 2 W. Bl. 807 ; 1 Leach,
aC.90; 1 East, P.O. 170.
It is a misdemeanor at common
law to have tools for coining in pos-
reasion with intent to use them.
Rex\. Suttan, 1 East, P. C. 172.
14. Unlawful possession of Base
Coin, FiKngs, or Clippings.
By 24 & 25 Vict. c. 99, s. 5,
" whosoever shall imlawfully have
"in his custody or possession any
** filii^ or clippings, or any gold
** or rilver bullion, or any gola or
" alver in dust, solution, or other-
*" wL^, which shall have been pro-
" duced or obtained by impairmg,
** diminishing, or lightening any of
" the Queen^ current gold or silver
" coin, knowing the same to have
"been so produced or obtained,
** shall, in England and Ireland, be
" guilty of felony, and being con-
" Tict«l thereof, shall be liable, at
" the discretion of the court, to be
kept in penal servitude for any
term not exceeding seven years,
"and not less than five years (27 &
**28 Vict. c. 47), or to be impris-
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" oned for any term not exceeding
" two years, with or without hard
" labour, and with or without soli-
" tary confinement."
By s. 11, " whosoever shall have
" in his custody or possession three
" or more pieces of false or counter-
" feit coin, resembling or appar-
" ently intended to resemble, or pass
"for any of the Queen's current
" gold or silver coin, knowing the
" same to be false or counterfeit,
" and with intent to utter or put off
" the same or any of them, shall, in
" England and Ireland, be guilty
" of a misdemeanor, and, being con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
kept in penal servitude for the
term of five years, or to be im-
" prisoned for any term not exceed-
" mg two years (27 & 28 Vict. c.
"47), with or without hard labour,
" and with or without solitary con-
" finement." (Former provision, 2
& 3 Will. 4, c. 34, s. 8.)
In order to convict a person
charged on 2 <fc 3 Will. 4, c. 34, s.
8, with having in his possession more
than three pieces of counterfeit coin,
with intent to utter them, it was
not necessary that the possession
should be an individual possession,
but it was enough if the coin was in
the possession of the person so
charged, or his immediate agent.
Reg. V. Williams, Car. & M. 259 —
Mirehouse, C. S.
Having a large quantity of coun-
terfeit com in possession, many of
each sort being of the same date,
and made in the same mould, and
each piece being wrapped in a sep-
arate piece of paper, and the whole
distributed in different pockets of
the dress, is some evidence that the
possessor knew that the coin was
counterfeit, and intended to utter
it. Reg. v. Jarvis, Dears. C. C.
552; 1 Jur., N. S. 1114 ; 25 L. J.,
M. C. 30 ; 7 Cox, C. C. 53.
Having counterfeit silver in pos-
session, with intent to utter it as
good, was no offence before 2 & 3
94
COINING.
Will. 4, c. 84, s. 8. Rex v. Heath,
R. & R. C. C. 184 ; S. P., Rex v.
Stewart, R. & R. C. C. 288.
Procuring base coin, with intent
to utter it as good, is a misdemean-
or. Rex V. Fuller, R. (fc R. C. C.
308.
Having in possession a large
quantity of base coin is evidence of
having procured it with intent to
utter it, unless there are other cir-
cumstances to induce a belief that
the defendant was the maker. Ih,
Having the possession of counter-
feit money, with intention to pay it
away as for good money, was an
indictable offence at common law.
Rex V. Parker, 1 Leach, C. C. 41.
Possession of bad money five
days after, may be given in evidence
to shew guilty knowledge. Har-
risonh case, 2 "Lewin, C. C. 118 —
Taunton.
When pieces of counterfeit coin
are found on one of two persons,
acting in guilty concert, and both
knowing of the possession, both are
guilty. Reg, v. Rogers, 2 M. C. C.
85 ; 2 Lewin, C. C. 119, 297.
15. Uttering,
StatiUe,]--By 24 & 25 Vict. c.
99, 8. 9, " whosoever shall tender,
" utter or put off any false or coun-
" terfeit coin, resembling or appar-
" ently intended to resemble or pass
"for any of the Queen's current
" gold or silver coin, knowing the
" same to be false or coimterfeit,
" shall, in England and Ireland, be
" guilty of a misdemeanor, and
" being convicted thereof, shall be
"liable, at the discretion of the
" court, to be imprisoned for any
" term not exceeding one year, T^dth
" or without hard labour, and with
" or without solitary confinement."
(Simiiar to former provision, 2 & 3
Will. 4, c. 34, B. 7.)
By s. 10, " whosoever shall ten-
" der, utter or put ofi* any false or
" counterfeit coin, resembling or ap-
" parently intended to resemble or
" pass for any of the Queen's cur-
" rent gold or silver coin, knowing
" the same to be false or counter-
" feit, and shall, at the time of sach
« tendering, uttering, or putting off,
" have in his custody or possesaon,
"besides the false or counterfeit
" coin so tendered, uttered or put
" off, any other piece of false or
" counterfeit coin, resembling orap-
" parently intended to resemble or
" pass for any of the Queen's cnr-
" rent gold or silver coin, or shall,
" either on the day of such tender-
" ing, uttering or putting off, or
" within the space of ten days then
" next ensuing, tender, utter, or put
" off any false or counterfeit coin,
" resembling or apparently intended
" to resemble or pass for any of the
" Queen's current gold or silver
" coin, knowing the same to be
" false or counterfeit, shall, in Eng-
" land and Ireland, be guilty of a
" misdemeanor, and, being convici-
" ed thereof, shall be Uable, at the
" discretion of the court, to be im-
" prisoned for any term not exceed-
"ing two years, with or without
" hard labour, and with or without
" solitary confinement." (Former
provision, 2 & 3 Will. 4, c 34, s. 7.)
By s. 11, " whosoever shall have
" in his custody or possession three
" or more pieces of false or counter-
" feit coin, resembling or apparent-
" ly intended to resemble or pass
" for any of the Queen's current
" gold or silver coin, knowing the
" same to be false or counterfeit,
" and with intent to utter or put off
" the same or any of them, shall, in
" England and Ireland, be guilty of
"a misdemeanor, and being con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
" kept in penal servitude for the
" term of five years (27 & 28 Vict
" c. 47), or to be imprisoned for any
"term not exceedmg two years,
" with or without ham labour, and
" with or without solitary confine-
" ment."
By 8. 12, " whosoever, having
" been convicted, either before or
UTTERING.
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after the passing of this act, of
any such misdemeanor or crime
and o/feuce as in any of the last
three preceding sections mention-
ed, or of any felony or high crime
and offence against this or any
former act relating to the coin,
shall afterwards commit any of
the misdemeanors or crimes and
offences in anv of the said sections
mentioned, shall, in England and
Ireland, be guilty of felony, and
being convicted thereof, shall be
liable, at the discretion of the
court, to be kept in penal servi-
tade, for life, or for any term not
less than five years(27 & .28 Vict,
c. 47), or .to be imprisoned for
any term not exceeding two years,
with or without hard labour, and
with or ^dthout solitary confine-
ment."
What amotifits to.] — A prisoner
went mto a shop, asked for some
coffee and sugar, and in payment
put down on the counter a counter-
feit shillin^^; the prosecutor said
that the shilling was a bad one ;
whereupon the prisoner quitted the
shop, leaving the shilling and also
thecoftee and sugar :—5leld, that
this was an uttering and putting off
within the statute. Ee(/. v. Welch,
T. & M. 409; 2 Den. C. C. 78 ; 15
Jar. 136; 20 L. J., M. C. 101.
The prisoner and J. were indicted
for a misdemeanor in uttering coun-
terfeit coin. The uttering was
effected by J. in the absence of the
prisoner, but the jury found that
they were both engaged on the eve-
ning on which the uttering took
place, in the common purpose of ut-
tering counterfeit shillmgs, and that
m pursuance of that common pur-
pose J. uttered the coin in question :
—Held, that the prisoner w^as right-
ly convicted as a principal, there
Jjcing no accessories in a misde-
meanor. JReff. V. Greenwood, 2
Den. C. C. 453 ; 5 Cox, C. C. 521 ;
16 Jur. 390 ; 21 L. J., M. C. 127.
Upon an indictment which charg-
ed an uttering and a putting off
counterfeit com, the evidence was
that the prisoner Avent into a shop
and asked to purchase some articles,
putting down a counterfeit shilling
in payment, the shopkeeper said it
was a bad one, and the prisoner
then left the shop without the shil-
ling or goods : — Held, that he was
guilty of uttering. Beq, v. Welch,
4 Cox, C. C. 430— Jervis.
The giving of a piece of counter-
feit money in charity is not an ut-
tering, although the person may
know it to be a counterfeit ; as in
cases of this kind there must be
some intention to defraud. Heg. v.
Paqe, 8 C. & P. 122— Abinger.
But where a person gave a coun-
terfeit coin to a woman with whom
he had shortly before had inter-
course : — Held, an uttering. Heg. v.
, 1 Cox, C. C. 250— Denman
and Coltman.
Joint Uttering.'] — If two utterers
of counterfeit com, with a general
community of purpose, go different
ways, and utter coin apart from
each other, and not near enough to
assist each other, their respective
utterings are not joint utterings by
both. Mex v. Manners, 7 C. <fc P.
801— Bolland.
If two jointly prepare counterfeit
coin, and utter it in different shops,
apart from each other, but in con-
cert, and intending to share the pro-
ceeds, the utterings of each are the
joint utterings of both, and they
may be convicted jointly. Beg. v.
ffurse, 2 M. & Rob. 860— Maule.
On an indictment for a joint ut-
tering of counterfeit coin, where
both are not present at the time of
the uttering, the true question seems
to be, whether the one was so near
the other as to help the other to get
rid of the counterfeit coin. Heg. v.
Jones, 9 C. & P. 761; Beg. v.
Rogers, 2 M. C. C. 85 ; 2 Lewin,
C. C. 119, 297.
Prisoners together uttered a bad
half-crown. Shortly afterwards they
9G
COINING.
separated, and one of them went
to a shop and uttered another bad
half-crown, and then the other
went to the same shop and uttered
a third bad half-crown ; but at these
second and third utterings neither
was proved to have been near the
other : — Held, that the proof of pre-
vious concert would not sustain a
count for a joint uttering in either
of the second or third utterings.
Beg. V. West, 2 Cox, C. C. 237—
Creswell.
By Hmhand and )F?/e.]-- Hus-
band and wife were jointly indicted
for uttering counterfeit coin : — ^Held,
that the wife was entitled to an ac-
quittal, as it appeared that she ut-
tered the money in the presence of
her husband. Bex v. Price, 8 C. &
P. 19 — ^Park, Bosanquet and Colt-
man.
A wife went from house to house
uttering base coin. Her husband
accompanied her, but remained out-
side : — Held, that the wife acted
under her husband's compulsion.
Conolhfs case, 2 Lewin, C. C. 229^ —
Bayley.
Indictment ] — An indictment,
charging that the prisoner, one
piece of counterfeit coin, <fec., "did
utter and put off to A., knowing
the same to be false and counter-
feit," is good, whether the objection
of uncertainty as to the time, &c.,
and in knowing, is taken before or
after verdict. Beg. v. Page, 2 M.
C. C. 219 ; 9 C. & P. 756.
A count charging the prisoner
with having counterfeit money in
his possession at the time he uttered
other counterfeit money, must con-
tain a distinct averment of the fact
of uttering. ^Kea; v. Jrc%, 3 Esp. 28
— Buller.
An indictment on 15 Geo. 2, c.
28, for uttering bad money by the
common trick called " ringing the
changes," was good, although it
did not state that it was uttei-ed in
payment as and for good and law-
ful money ; for the words of the
statute were in the disjunctive utter
or tender in payment. Bex v.
Franks, 2 Leach, C. C. 644.
An indictment for knowingly ut-
tering counterfeit coin, charged that
the prisoner " did utter and put off
to one S. A., the wife of W. 6.,
knowing the same to be false and
counterfeit " : — Held, that the alle-
gation of the scienter was sufficient,
and that the word " knowinjj" must
be taken to apply to the prison-
er, and not to "S. A., the wife
of W. G.," who was the last an-
tecedent; and that the scienter
must be taken to apply to the time
of the uttering, although it was not
stated to be " then and there." Reg,
V. Jones, 9 C. &P. 761— Coleridge.
Evidence of GhiUiy JSjiowledge.]
— On an indictment for uttering
counterfeit coin, to prove a guilty
knowledge, evidence may be given
of a subsequent uttering by the
prisoner of counterfeit coin of a dif-
ferent denomination to that men-
tioned in the indictment. The differ-
ence in the denomination of the coin
goes to the weight of evidence, but
not to its admissibility. Beg. v.
Forster, Dears. C. C. 456 ; 1 Jur.,
N. S., 407; 3C. L. R. 681; 24 L
J., M. C. 134; 6 Cox, C. C. 521.
Tioice within Ten Days.] — ^An
indictment for knowingly uttering
counterfeit coin twice on the same
day, charged an uttering of a coun-
terfeit half-crown, and that the de-
fendant on the same day, uttered
"one other piece of false and coun-
terfeit (omitting the word 'coin'),
resembling, and apparently intend-
ed to resemble, and pass for a piece
of the Queen's current silver coin,
called a half crown, unla\\^ully,
<fcc., did utter and put oft' to one
S. A., the wife of W . G., knowing
the same to be false and counter-
feit " : — ^Held, that the omia«ion of
the word " coin " did not render
the indictment bad, as the words
WHEN OFFENCE COIVIPLETE.
97
^ false and counterfeit '' might be
rejected as surplusage, and the in-
dictment would then be, " one other
pece resembling, and apparently
mteoded to resemble, ana pass for
a pece of the Queen's current silver
com, called a half-crown." JReg. v.
Jom, 9 C. & P. 761— Coleridge.
On a conviction of two separate
offences of uttering counterfeit coin,
in two counts, one judgment for
two years' imprisonment, under 2
t 3 Will 4, c. 34, 8. 7, was bad.
Ba V. Bohinson, 1 M. C. C. 418.
In an indictment on 15 Greo. 2, c.
28, fi. 3, it was not necessary to aver
that the defendant was a common
Qtterer of false money. Sex v.
SnUiJi, 2 B. & P. 127,
WhUe having other Cotenterfeit
Money,] — ^If two prisoners are in-
dicted for uttering a counterfeit
dulling, having another counterfeit
shilling in their possession, it is not
necessary to prove with certainty
which of the pieces was the one ut-
tered, and which was found on them
unattered, if both the pieces of the
money are proved to be counterfeit.
And if it appears that two prisoners
went to a shop, and that one of
them went in and uttered the bad
money, having no more in her pos-
seesion, and the other stayed outside
the shop, having other bad pieces of
money, both may be convicted;
the uttering and the possession be-
ing both joint. BexY.Sk€rnU,2C.
4P.427— Garrow.
Where one of two persons in
oonpany utters counterfeit coin,
dod other counterfeit coin is found
on the other person, they are joint-
ly e^oilty of the aggravated offence
mwer 2^3 Wm. 4, c. 34, s. 7, if
^ctins m concert, and both know-
^ of the possession. Beg. v. Ger-
ritk,2M.& Rob. 219— Maule.
Where a man and woman were
indicted for uttering a bad shilling
to B., and having in their possession
soother bad shilling at the time,
uid the uttering was by the woman
Fish. Diow— 7
alone in the absence of the man:
— Held, that the man was not
liable to be convicted with the act-
ual utterer, although proved to be
the associate of the woman on the
day of uttering, and to have had
other bad money about him for the
purpose of uttenng ; and, secondly,
that the woman could not be con-
victed of the second offence of hav-
ing other bad money in her posses-
sion, on the evidence of her associ-
ating with a man not present at the
uttering, but having large quanti-
ties of bad money about him for the
purpose of uttering. Hex v. ElsCy
k & R. C. C. 142. But see Beg.
V. Greenwood, 5 Cox, C. C. 521 ; 2
Den. C. C. 453.
16. When Ofence complete.
By 24 & 25 Vict. c. 99, s. 80,
" every offence of falsely making or
" counterfeiting any coin, or of buy-
" ing, selUng, receiving, paying, ten-
" dering, uttering or puttmg off, or of
" offering to buy, sell, receive, pay,
" utter or put off, any false or coun-
" terfeit coin, against the provisions
'' of this act, shall be deemed to be
" complete, although the coin so
" made or counterfeited, or bought,
" sold, received, paid, tendered, ut-
" tered or put off, or offered to be
" bought, sold, received, paid, utter-
'^ ed or put off, shall not be in a fit
" state to be uttered, or the coun-
" terfeiting thereof shall not be fin-
" ished or perfected."
Forging the impression of money
on an irregular piece of metal, with-
out finishing it, so as to make it
current, was an incomplete crime,
and not high treason. JRex v. Var-
ley, 2 W. Bl. 682 ; 1 Leach, C. C. 76,
253 ; 1 East, P. C. 164.
That it is not necessary to com-
plete the offence that the possession
should be with a felonious intent
' other than knowledge of possession
without lawful authority or excuse.
JReg, V Harvey y 11 Cox, C. C. 662.
98
COINING.
17. Evidence,
By 24 & 25 Vict. c. 99, s. 29,
" where upon the trial of any person
" charged with any offence against
" this act, it shall be necessary to
"prove that any coin produced
" m evidence against such person is
" false or counterfeit, it shall not be
" necessary to prove the same to be
" false and counterfeit by the evi-
" dence of any moneyer, or other
" officer of her Majesty's mint, but
" it shall be sufficient to prove the
" same to be counterfeit by the evi-
" dence of any other credible wit-
" ness." {Former provision^ 2 & 3
Will. 4, c. 34, 8. -17.)
The usual practice is to call, as a
witness, a silversmith of the town
where the trial takes place, who ex-
amines the coin in court in the pres-
ence of the jury. Davis's C. L. 235.
18. Previous Oonviction.
Indictmmty-Bj 24 & 25 Vict,
c. 99, 6. 37, " where any person
" shall have been convicted of any
"offence against this act, or any
"former act relating to the coin,
"and shall afterwams be indicted
"for any offence against this act
" committed subsequent to such
" conviction, it shall be sufficient in
" any such indictment, after charg-
"ing such subsequent offence, to
" state the substance and effect only
" (omitting the formal part) of the
" indictment and conviction for the
" previous offence."
Before this enactment, an indict-
ment for uttering counterfeit coin,
knowing it to be counterfeit (after
a previous conviction), charged that
the prisoner did utter a counterfeit
half-crown to E. H., knowing the
same to be false and counterfeit : —
Held, that the allegation of the
scienter was sufficient, and that the
word " knowing " must be taken to
apply to the prisoner, and not to E.
H., who was the last antecedent,
and that the scienter must be taken
to apply to the time of the uttering,
although it was not stated to be
"then and there." Reg. v. Pagt^
9 C. & P. 756 ; 2 M. C. C. 219.
Certificate and Proof of Qowbw-
tionI\ — " And a certificate contain-
" ing the substance and effect only
" (omitting the formal part) of the
" indictment and conviction for the
" previous offence, purporting to be
" signed by the clerk of the court, or
" owier officer having or purporting
" to have the custody of the records
" of the court where the offender wa8
" first convicted, or by the deputy
" of such clerk or officer, shall, upon
" proof of the identity of the person
" of the offender, be sufficient evi-
" dence of the previous conviction,
" without proof of the signature or
" official character or authority of
" the person appearing to have sign-
" ed the same, or of his custody or
" right to the custody of the pec-
" ords of the court ; and for every
" such certificate a fee of 6«. 8rf.,
" and no more shall be demanded
" or taken."
(C
(C
((
«
(C
(C
((
((
(C
((
((
Arraignment and TWa/.] — " And
the proceedings upon any indict-
ment for committing any offence
after a previous conviction or con-
victions, shall be as follows ; that
is to say, the offender shall in the
first instance be arraigned* upon
so much only of the indictment as
charges the subsequent offence;
and if he plead not guilty, or if
the court order a plea of not
guilty to be entered on his behalf,
the jury shall be charged in Ae
first instance to inquire concern-
ing such subsequent offence only ;
and if they find him guilty, or if
on arraignment he plead guilty,
he shall then, and not before, be
asked whether he had been previ-
ously convicted, as alleged in the
indictment ; and if he answer that
he had been so previously convict-
ed, the court may proceed to sen-
tence him accordingly ; but if he
deny that he had been so previously
convicted, or stand mute of mal"
APPREHENSION OF OFFENDERS.
99
" ice, or will not answer directly to
"^ meh question, the jury shall then
" be charged to inquire concerning
" such previous conviction or con-
*' Tictions ; and in such case it shall
"not he necessary to swear the jury
^ again, but the oath already taken
"by them shall for all purposes be
"deemed to extend to such last-
" mentioned inquiry."
Ecidmce of Good Character,'] —
" Provided that if, upon the trial of
**any person for any such subse-
"quent offence, such person shall
" give evidence of his good charac-
"ter, it shall be la^ul for the
"prosecutor, in answer thereto, to
"give evidence of the conviction of
"such person for the previous of-
" fence or offences before such ver-
"dict of guilty shall be returned,
" and the jury shall inquire concem-
"ing such previous conviction or
" convictions at the same time that
" they inquire concerning such sub-
" sequent offence."
On an indictment for uttering a
counterfeit coin after a previous
conviction, such previous convic-
tion for uttering raise coin cannot
be put in evidence for the purpose*
of proving guilty knowledge. lieg.
T. Goodwin, 10 Cox, C. C. 534—
Mellor. But this decision is over-
ruled by the next case.
On the trial of an indictment
for felonious possession of counter-
feit coin, with intent to utter the
same, after previous conviction, the
conne of proceeding at the trial is
prescribed by 24 & 25 Vict. c. 99,
8. 37, viz., first to try that part of
the offence which relates to the pos-
session, and then if the prisoner is
found guilty, to try the prisoner for
the previous conviction. Heg, v.
Martin, 21 L. T., N. S. 469 ; 18 W.
R72 ; 1 L. R., C. C. 214— C. C. R.
19. Validity of Convictions and
Commitments,
By 24 A 25 Vict. c. 99, s. 32,
" no conviction for any offence pun-
"ishable on summary conviction
"under this act shall be quashed
" for want of foim, or be remov-
" ed by certiorari into any of her
"Majesty's superior courts of rec-
" ord ; and no warrant of commit-
" ment shall be held void by reason
" of any defect therein, provided it
" be therein alleged that the party
" has been convicted, and there be
" a valid conviction to sustain the
" same."
20. Conveying Coining Tools or Coin
from the Mint without Authority.
By24& 25 Vict.c.99,s.25, "who-
" soever, without lawful authority
" or excuse (the proof whereof shall
"lie on the party accused), shall
" knowingly convey out of any of
" her Majesty's mints any pimcheon,
" counter puncheon, matrix, stamp,
" die, pattern, mould, edger, edging
" or other tool, collar, mstrument,
" press or engine used or employed
" m or about the coining of coin, or
" any useful part of any of the sever-
" al matters aforesaid, or any coin,
" bullion, metal or mixture of met-
" als, shall, in England and Ireland,
"be guilty of felony, and being
" convicted thereof, shall be liable,
" at the discretion of the court, to
" be kept in penal servitude for Ufe,
" or for any term not less than five
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not
" exceeding two years, with or with-
" out hard labour, and with or with-
" out solitary confinement."
21. Power to seize Counterfeit Coin
and Coining Tools,
(24 4- 25 Vict. c. 99, s. 27.)
{Former provisions, 2 & 3 Will.
4, c. 34, s. 14, and 37 Geo. 3, c. 126,
s. 7, and 43 Geo. 3, c. 139, s. 7.)
22. Apprehension of Offenders.
By 24 & 25 Vict. c. 99, s. 31, "it
" shall be lawful for any person
" whatsoever to apprehend any per-
" son who shall be found commit-
100
comiNQ.
'" ting any indictable offence, or any
" high crime and offence, or crime
'^ and offence, against this act, and
" to convey or deliver him to some
" peace officer, constable or officer
" of police, in order to his being
" conveyed as soon as reasonably
" may be before a justice of the
" peace or some other proper officer,
" to be dealt with according to
" law."
23. Prosecution and Trial of Of-
fenders.
Venue.]— By 24 & 25 Vict. c. 99,
8. 28, " where any person shall tend-
" er, utter, or put off any false or
" counterfeit coin in one county or
^' jurisdiction, and shall also tender,
" utter, or put off any other false or
" counterfeit coin in any other
" county or jurisdiction, either on
" the day of such first-mentioned
" tendering, uttering, or putting off,
" or within the space of ten days
"next ensuing, or where two or
" more persons, acting in concert'in
" different counties or jurisdictions
" shall conmiit any offence against
" this act, every such offender may
" be dealt with, indicted, tried, and
"punished, and the offence laid
" and charged to have been com-
" mitted, in any one of the said
" counties or jurisdictions, in the
" same manner in all respects as if
" the offence had been actually and
"wholly committed within such
" one county or jurisdiction,"
On the High Seas,"] — By s. 86,
" all indictable offences mentioned
" in this act, which shall be com-
" mitted within the jurisdiction of
" the Admiralty of England or Ire-
" land, shall be deemed to be of-
" fences of the same nature, and
" liable to the same punishments,
"as if thev had been committed
" upon the land in England or Ire-
" land, and may be dealt with, in-
" quired of, tried, and determined
" in any county or place in England
" or Ireland in which the o^nder
s.
shall be apprehended or be in cus-
tody, in tne same manner in all
resi)ects as if the same had been
actually committed in that county
or place, and in any indictment
for any such offence, or for being
accessory to any such offence^ the
venue in the margin shall be the
same as if such offence had been
committed in such county or
place, and the offence itself shall
be averred to have been commit-
ted ' on the high seas ': provided
that nothing herein contained
shall alter or affect any of the
laws relating to the government
of her Majesty's land or naval
forces."
On Summary Convictions^] — By
41, " every offence hereby made
punishable on summary convic-
tion may be prosecuted in En-
gland in the manner directed by
11 & 12 Vict. c. 43, and may be
prosecuted in Ireland before two
or more justices of the peace, or
one metropolitan or stipendiary
magistrate, in the manner direct-
ed by 14 & 15 Vict. c. 93, or in
such other maimer as mav be di-
rected by any act that miay be
passed for like purposes ; and all
provisions contained in the said
acts shall be applicable to such
prosecutions in the same manner
as if they were incorporated in
this act: provided that nothing
in this act contained shall in any
manner alter or affect any enact-
ment relating to procedure in the
case of any offence punishable on
summary conviction within the
city of London, or the metropoli-
tan police district, or the recovery
or application of any penalty or
forfeiture for any such offence,"
24. Piffiis/imerU.
(24 cfe 25 Vict. c. 99, s. 35.)
25. Costs of Prosecutiofi,
By 8. 42, " in all prosecutions for
ACTIONS AGAINST PERSONS.
101
'*suiV offence against this act in
" England, whicn shall be conduct-
" ed under the direction of the so-
" Kdtore of her Majesty's Treasury,
"the court before which such of-
" fence shall be prosecuted or tried
"shall allow the expenses of the
"prosecution in all respects as in
"ca^s of felony ; and in all prose-
"ctrtions for any such offence in
"England which shall not be so
" eondncted, it shall be lawful for
"such court, in case a conviction
"shall take place, but not other-
" wise, to allow the expenses of the
"prosecution in like manner; and
"every order for the payment of
" such costs shall be made out, and
" the sum of money mentioned there-
" in paid and repaid, upon the same
" terms and in the same manner in
"all respects as in cases of felony."
26. Adions against Persona act-
mg in purstumce of the Statute.
By 24 & 25 Vict. c. 99, s. 33,
" all actions and prosecutions to be
"commenced against any person
" for anything done in pursuance of
" this act shall, in England or Ire-
"land, be laid and tried in the
" county where the fact was com-
"mitted, and shall, in England,
"Ireland, or Scotland, be com-
"menced within six months after
" the fact committed, and not oth-
"erwise; and notice in writing of
"each action, and of the cause
" thereof, shall be given to the de-
" fendant one month at least before
" the conunencement of the action ;
" And in any ^ch action brought
"m England or Ireland the defend-
" ant may plead the general issue,
" and give this act and the special
"matter in evidence, at any trial
"to be had thereupon ;
"And no plaintiff shall recover
"in any such action if tender of
" sufficient amends shall have been
" made before such action brought,
" or if a sufficient sum of money
"Aall have been paid into court
"after such action brought, by or
" on behalf of the defendant, and
" if in England or Ireland a verdict
"shall pass for the defendant, or
" the plaintiff shall become nonsuit,
" or discontinue any such action
" after issue joined, or if, upon de-
"murrer or otherwise, judgment
" shall be given against the plaint-
" iff, in every such case the defend-
" ant shall recover his full costs as
" between attorney and client, and
" have the like remedy for the same
" as any defendant has by law in
" other cases ; and though a verdict
" shall be given for the plaintiff in
" any such action, such plaintiff
" shall not have costs agamst the
" defendant unless the judge before
" whom the trial shall be shall cei^
"tify his approbation of the ac-
« tion."
In order to entitle a party to a
notice of action for a thing done in
pursuance of this statute, it is
enough that he honestly and bond
fide believes he is acting in pursu-
ance of the act, wliether there is
reasonable ground for such belief
or not. Hermann v. Seyieschal^ 13
C. B., N. S. 392 ; 32 L. J., C. P.
43 ; 11 W. R. 184; 6 L. T., N. S.
646.
X. CONOEALMEXT OF THE BiKTH
OF Children.
1. The Offence, 101.
2. Indictment, 104.
3. Evidence, 105.
1. The Offence.
Stame^^—^Y 24 & 25 Vict. c.
100, 8. 60, " if any woman shall be
" delivered of a child, every person
" who shall, by any secret disposi-
" tion of the dead body of the said
"child, whether such child died
" before, at, or after its birth, en-
" deavour to conceal the birth there-
" of, shall be guilty of a raisde-
" meanor, and, being convicted
" thereof, shall be liable, at the
" discretion of the court, to be im-
102
CONCEALMENT OF BIRTHS.
" prisoned for any term not exceed-
"mg two years, with or without
" hard labour : provided that if
" any person tried for the murder
"of any child shall be acquitted
" thereof, it shall be lawful for the
"jury by whose verdict such per-
" son shall be acquitted to find, in
" case it shall so appear in evi-
" dence, that the child nad recently
" been bom, and that such person
" did, by some secret disposition of
" the dead body of such child, en-
" deavour to conceal the birth there-
" of, and thereupon the court may
" pass such sentence as if such per-
" son had been convicted upon an
" indictment for tlie concealment of
" the birth." (J^ormer provisiofiy
9 Geo. 4, c. 31, ss. 14, 31. The 9
Geo. 4, c. 31, repealed 43 Greo. 3,
c. 58.)
/Since this Ena<^ment,'] — On an
indictment against the mother for
concealment of the birth of her il-
legitimate child, it appeared that
the body of the child was found,
three days after it was born, behind
the door of the privy belonging to
the house where she lived as a do-
mestic servant, in a tub covered
over with a small cloth : — Held,
that there was no conclusive evi-
dence to warrant the jury in find-
ing a verdict for concealment of
the birth. Reg, v. Opie^ 8 Cox, C.
C. 332— Martin.
To endeavor to conceal the birth
of a child by a secret disposition of
the dead body within 24 &, 25 Vict,
c. 100, s. 60, it must be by putting
it into some place where it is not
Ukely to be found. Placing it in
an open box in the prisoners bed-
room, and afterwards, on inquiry
by the medical man, informing him
that the child was in the box,
where it was found, is not a secret
disposition. Reg, v. Sleep ^ 9 Cox,
C. C. 559— Byles.
A foetus not bigger than a man's
finger, but having the shape of a
child, is a child within the statute.
Reg, V. Cdmevy 9 Cox, C. C. SOS-
Martin.
Before this Statute,'] — ^The moth-
er of a child, of which she has been
recently delivered, with the inten-
tion of concealing the dead body of
the child from a surgeon, placed it
under a bolster on w^hich she laid
her head. It was assumed that
she meant to remove the body else-
where when an opportunity oc-
curred : — Held, that die was prop-
erly convicted of endeavoring to
conceal the birth of the child by
secretly disposing of the dead body,
as it was not necessary in order to
constitute that ofience, under 9
Geo. 4, c. 31, 6. 14, that the body
should be put in a place which was
intended to be the place of its final
deposit. Reg, v. Perry ^ Dears. C.
C. 471 ; 1 Jur., N. S. 408 ; 24 L. J.,
M. C. 137 ; 3 C. L. R. 691 ; 6 Cox,
C. C. 531 ; S, P., Reg, v. GM.
thorpe. Car. & M. 335 ; 2 M. C. C.
244 ; Reg. v. JPhrjihaUj 1 Cox, C.
C. 349.
The concealment sought to be
checked by 9 Geo. 4, c. 31, s. U,
was that which would keep the
world at large in iornorance of the
birth of a child. Jteg, v, Morris, 2
Cox, C. C. 489— Coltman.
While, therefore, the ofience may
on the one hand be committed, even
though the pregnancy and delivery
be made known to a confidant, so
on the other it is not an ofience
within the act if the endeavour to
conceal proceed from a desire to
escape individual observation or
anger. Where, therefore, it ap-
peared that the body of a bastard
cliild would have been buried by
the prisoner in the churchyard, but
for her fear to provoke her father,
under the operation of which she
conveyed it secretly to a pond :—
Held, that the case did not fall
within the act. lb.
On an indictment against die
mother for the murder of her ille-
gitimate child, it appeared that the
THE OFFENCE.
103
body of the child was fomid, a few
hoaT8 after its birth, on the tioor of
an attic in a house where she lived
as domestic servant, the head sev-
ered from the body, and both lying
in sheets which had been removed
from the bedroom below, which
was occupied by the prisoner and
her mistress, and where there was
evidence to shew that the birth had
taken place, but it was doubtful
whether the severance of the head
from the body was effected there or
in the attic : — ^Held, that there was
no evidence to warrant the jury in
finding a verdict for the statutable
misdemeanor of endeavouring to
conceal the birth. Reg. v. Goocle,
6 Coi, C. C. 318— Talfourd.
On a chaise of concealment of
birth, it must appear that the child
had ^one such a time in its mother's
womb that it would, in the ordi-
nary course of things, when bom,
have had a fair chance of life. Un-
der seven months it may be fairly
presmned that it would not be bom
alive. JReg. v. Berrinian^ 6 Cox,
C. C. 388— Erie.
A woman was delivered of a
child, whose dead body was found
at her father's house in a bed among
the feathers. There was no evidence
to shew who placed it there, but it
being proved that the woman had
sent for a surgeon at the time of
her confinement, and had prepared
child's clothes, the judge directed
an acquittal on the charge of en-
deavoring to conceal the birth.
Seat V. Higley, 4 C. & P. 366—
Park.
In a case of concealment of birth
nnder 9 Geo. 4, c. 31, s. 14, it was
essential to the commission of the
offence that the prisoner should have
done some act of disposal of the
hody after the child was dead;
therefore, if the prisoner had gone
to a privy for another purpose, and
the child came from her unawares,
and fell into the soil and was suffo-
cated, she must be acquitted of this
<^harge, notwithstanding her denial
of the birth of the child. Reg, v.
Turner, 8 C. & P. 755— Patteson.
8, P., Reg, v. Coxhead, 1 C. <fc K.
623— Piatt.
A prisoner found with the body
still in her possession, though about
to dispose of it, could not be con-
victed. Rex V. SneUy 2 M. & Rob.
44 — Gumey.
The act of. throwing a bastard
child down the privy, by its moth-
er, was evidence of an endeavour
to conceal the.birtli, within 43 Geo.
3, c. 58, s. 3. Rex v. CornwciU^ R.
& R. C. C. 337.
On an indictment for child mur-
der, no one but the mother can be
convicted of a concealment of the
birth of the child. Reg. v. Wright^
9 C. & P. 754— Gumey.
Aiding and Assisting,'] — A wo-
man was delivered of a child, which
died soon after its birth ; concurred
with her paramour in endeavouring
to conceal the birth, and he, in con-
sequence of her persuasion, she re-
maining in bed, took the body, and
buried it in a field, intending there-
by to conceal the birth ; — Held,
that she could be convicted of en-
deavouring to conceal the birth,
under 9 Geo. 4, c. 31, s. 14, and he
of counselling, aiding and abetting
her in the offence. Reg. v. Bira^
2 C. & K. 817— Piatt.
If a woman is delivered of a
child which is dead, and a man
takes the body and secretly buries
it, she is indictable for the conceal-
ment by secret burying, under 9
Geo. 4, c. 31, s. 14, and he for aid-
ing and abetting under sect. 31, if
there was a common purpose in
both in thus endeavouring to con-
ceal the birth of the child ; but the
jury must be satisfied not only that
she wished to conceal the birth, but
was a party to the carrying that
wish into effect by the secret burial
by the hand of the man, in pursu-
ance of a common design between
them. Reg. v. Skeltonj 3 C. & K.
119_Williams.
104
CONCEALMENT OP BIRTHS.
If the body of a dead child was
secretly buried, or otherwise dis-
posed of, by an accomplice of its
mother, the accomplice acting as
her agent in the matter, the mother
of the child was punishable under
9 Geo. 4. c. 31, s. 14. Hex v.
Douglas, 7 C. & P. 644— Gaselee.
A woman delivered of a child bom
alive, endeavored to conceal the
birth by depositing the child, while
alive, in the comer of a field, leaving
the infant to die from exposure,
which it did, and the dead body was
afterwards found in the comer : —
Held, that she could not be convicted
of concealing the birth of the child
under 24 & 25 Vict. c. 100, s. 60,
which relates to the secret disposition
of the dead body of a child. jReg. v.
Mai/, 10 Cox, C. C. 448; 15 W. R.
751; 16 L. T., N. S. 362.
On an indictment for secretly dis-
posing of the dead body of a bas-
tard child, with intent to conceal
its birth, it is a question of law for
the judge, whether there has been a
secret disposing of the body, i. e. a
disposing of it in such a place as
that the offence may have been
committed (and a dust-bin is such
a place); but it is for the jury to
say whether there has been such a
disposing of the body by the pris-
oner wiSi such an intent, and the
jury must be satisfied that the pris-
oner so disposed of it, or was a party
to such a disposition of it, with in-
tent. JReg. V. Clarke, 4 F. & P.
1040— Martin.
On an indictment for concealing
the birth of her child, it appeared
that the prisoner had been confined
of a child which had not attained
to seven months from conception,
it had never lived, and was slightly
malformed, it was left to the jury
to say whether the offspring had so
far matured as to become a child,
or was only a foetus, or the unform-
ed subject of a premature marriage.
Heg. V. BemU, 4 P. & P. 1101—
Smith.
Leaving the dead body of a child
in two boxes, closed, but not locked
or fastened, one beuig placed inside
the other in a bedroom, but in such
a position as to attract the attention
of those who daily resorted to tiie
room, is not a secret disposition of
the body within 24 & 25 Vict c
100, 8. 60. Meg. v. George, 11 Cox,
C. C. 41— Bovill.
In order to convict a woman rf
attempting to conceal the birth of a
child, a dead body must be found,
and identified as that of the child
of which she is alleged to have been
delivered. JReg. v. WilHanu, U
Cox, C. C. 684.
2. Indictment.
An indictment for concealing the
birth of a child must expressly al-
lege that the child is dead. Rsx t.
Jiams, 1 Russ. C. & M. 779.
An indictment for concealing the
birth of a child " by secretly dis-
posing of the dead body," imder 9
Geo. 4, c. 31, 8. 14, without shewing
the mode of disposing of the dead
body, was bad. Reg. v. HoumeU,
2 M. & Rob. 292— Maule.
An indictment on 9 Geo. 4, c. 31,
s. 14, for endeavouring to conceal
the birth of a dead chud, need not
have stated whether the child died
before, at, or after its birth. Reg.
V. GoaAead, 1 C. & K. 623— Piatt
An indictment for that offenoe,
which charged that the defendant
did cast and throw the dead body
of the child into soil in a privy,
"and did thereby then and there
unlawfullv dispose of the dead body
of the child, and endeavour to con-
ceal the birth thereof," sufficiently
charged the endeavour to conceal
the birth, as the word " thereby "
applied to the endeavour, as well as
to the disposing of the dead body.
Ih.
Where an indictment for conceal-
ing the birth of a child alleged the
concealment to have been in and
among a certain heap of carrots,
and the evidence was that the body
was laid upon the heap, but behind
EVIDENCE.
105
it, 60 that it was hidden from the
passers-by hy the upper part of the
heapi Semble, that the evidence
did not support the indictment.
Beg. V. , 6 Cox, C. C. 891—
Crompton.
Held, that the provision of 14 &
15 Vict. c. 100, B. 1, empowering
the judge to amend certain varian-
ces between the indictment and the,
eridence, did not extend to such an
smendment as this. Ih.
Where proof that a woman was
delivered of a child and allowed
others to take away the body, was
held insufficient to sustain an indict-
ment against her for concealment
of birth. Beg. v. Bate^ 11 Cox, C.
C.686.
3. Evidence.
Where there is no clear evidence
of an ofienoe having been conmiit-
ted, a poUce officer is not justified,
in consequence of mere rumors in a
neighbourhood, in putting search-
ing questions to a person for the
porpose of eliciting the proof of a
crime, as well as of that person's
0(Hmection with it. After the in-
vestigation before a magistrate on
a charge of concealment of birth,
and after the accused had been cau-
tioned in the usual manner, and
had stated that she had nothing to
say, but before her actual commit-
tal, the presiding magistrate asked
her what she had done with the
body of the child : — ^Held, that her
statement in answer was not admis-
sible; nor would the judge allow a
witness to be asked whether, in con-
sequence of such statement, he did
a particular thing. Reg. v. Bern-
nan, 6 Cox, C. C. 888— Erie.
The prisoners were sent for trial
leeeiving the usual caution from the
magistrate as to anything they
might say : — A. made a statement,
which was taken down in writing,
ftnd attached to the depositions : —
Held, that the latter statement of
A. might be read at the trial as ev-
idence against herself. lb.
The defendant was indicted for
the concealment of the dead body
of her child. The evidence as to
identification was not sufficient to
warrant a conviction: — Held, that
evidence must be clear and direct
to identify the body found as the
child of which the party was said
to have been delivered, or con^dc-
tion will not follow. Beg. v. Wil-
liams, 11 Cox, C. C. 684.
A., being questioned by a police
officer about the concealment of a
birth, gave answer which caused
the officer to say that it were better
for her to tell the truth and not a
lie : — Held, that a further statement
to the officer was inadmissible in
evidence against her, as not being
free and voluntary. Beg. v Bate,
11 Cox, C. C. 686.
A. was taken into custody and
placed with B. and C, charged
as accomplices with concealment
of birth. All three made state-
ments : — ^Held, that their statements
were not affected by the previous
inducement to A., and were admis-
sible against B. and C. respectively,
but that made by A. was not so.
lb.
XI. COXSPIRACT.
1. The Offence, 105.
2. Trade Qnnbinatuma, 107.
3. Parties Indictable^ 109.
4. Indictment, 109.
5. Particulars of Overt Acts, 113.
6. Evidence, 113.
7. Trial and Verdict, 117,
8. New Trial, 118.
1. 7%e Offence.
An indictment for conspiracy, at
common law, will lie for enticmg a
young woman under age to leave
her father's house, and live in for-
nication with one of the defendants ;
and concerting measures, with her
own approbation, to carry her off
and conceal her for that puroose.
Bex V. Gray, (Lord), 1 East, P. C.
460.
106
CONSPIRACY.
Prisoners were found guilty upon
an indictment charging them with
conspiring to solicit, persuade, and
procure an unmarried girl, of the
age of seventeen, to become a com-
mon prostitute, and with having, in
pursuance of that conspiracy, solic-
ited, incited and endevoured to pro-
cure her to become a common pros-
titute ; — Held, that although com-
mon prostitution was not an indict-
able oifence, it was imlawful, and
the indictment therefore good, with-
out averring that the prosecutrix
was a chaste woman at the time of
the conspiracy. J^g. v. Howell^ 4
F. & F. 160— Bramwell and Re-
corder Gumey.
Two women induced a girl of fif-
teen, who had left her place as a
servant, to go to their house, one
of them pretending that she had
known her deceased parents, and
saying that she would keep her un-
til she got a place, and that they
both would assist her in getting one.
They were both women oi bad
character, and the place where they
resided was a house of ill-fame. It
was false that they or either of them
had known the parents of the prose-
cutrix, and they took no step what-
ever to get her a place, but urged
her to have recourse to prostitution.
They introduced a man to her, and
attempted, by persuasion, and hold-
ing out prospects of money, to in-
duce her to consent to illicit con-
nexion with him. She refused to
consent, and declared her hitention
of quitting the house ; the pris-
oners refused to give her up her
clothes, and she left without them :
— ^Held, that they were rightly con-
victed of a conspiracy, and that
they might have have been indicted
for the offence at common law.
Reg. V. Hears, 2 Den. C. C. 79 ; T.
& M. 414 ; 15 Jur. 66 ; 20 L. J.,
M. C. 59 ; 4 Cox, C. C. 423.
A conspiracy to procure a mar-
riage between poor persons of differ-
ent parishes, for the purpose of ex-
onerating the parish of the woman
and charging the other parish, is
not an indictable offence, unless the
parties are unwilling to marry, or
some forcible or fraudulent means
of bringing about the marriage were
resorted to. Hex v. Seward, 3 N.
& M. 557 ; 1 A. & E. 706.
A conspiracy to exonerate from
the prospective burthen of main-
taining a pauper, not at the time
actually chargeable, and to throw
the burthen upon another parish, by
means not in themselves unlawful,
is not indictable. Ih.
If a man and woman marrv in
the name of another, for the pur-
pose of raising a specious title to the
estate of the person whose name is
assumed, it is a conspiracy. Rex\,
Robinson, 1 Leach, C. C. 87; 2
East, P. C. 1010.
It is an indictable offence to con-
spire on a particular day by &l8e
rumors, to raise the price of the pub-
lic government funds, with intent
to injure the subjects who should
purchase on that day. Bex v. Be
Berenger, 3 M. & S. 68.
Getting money out of a man by
conspiring to charge him with a
false fact is indictable as a conspir-
acy, whether the fact charged is
criminal or not in itself. Kex v.
Rispal, 1 W. Bl. 368; 3 Burr. 1820.
If brokers agree together, before
a sale by auction, that one only of
them should bid for each artide
sold, and that all articles thus
bought by any of them should be
sold again among themselves at a
fair price, and the difference be-
tween the auction price and the &ir
price divided among them : this is
a conspiracy for which tliey are in-
dictable. Levi V. Zcvi, 6 C. & P.
239— Gumey.
A conspiracy to extort money is
per se an offence at common law,
and need not be charged to be at*
tempted by unlawful means. Rex
V. HoUingherry, 6 D. & R. 345 ; 4
B. & C. 829.
An information will be granted
for a conspiracy by a master, an at-
TRADE COMBINATIONS.
107
torney, and a gentleman, to assign
over a female apprentice, by her
own consent, for the purpose of
prostitution. -Bex v. Detavcd^ 3
Barr. 1434 ; 1 W. Bl. 410, 439.
So, for a combination to fix the
price of salt. Hex v. J^orris, 2 Ld.
Ken. 300.
An indictment will lie for a con-
spiracy to obtain money as a re-
ward for an appointment to aii office
under government. Hex v. PolL
man, 2 Camp. 229 — Ellenborougb.
On an indictment for conspiracy
for the gale and transferring of a
railway excursion ticket, not trans-
ferrable:— Held, that the prisoners
must be acquitted, unless there was
a previous concert between them to
obtam the ticket, for the purpose of
its being fraudulently used. JReg.
7. JAw&», 1 F. & F. 498— Wight-
man.
The directors of a joint-stock
bank, knowing it to be in a state of
infiolyency, issued a balance-sheet
shewing a profit, and thereupon de-
clared a dividend of six per cent.
They also issued advertisements in-
Titbg the public to take shares up-
on the faith of their representations
^at the bank was in a flourishing
condition. On an ex officio infor-
mation filed by the Attorney-Gen-
eral, they were found guilty of a
conspiracy to defraud. JKe^. v.
Brwm, 7 Cox, C. C. 442 ; Beg. v.
&dmk, 1 F. & F. 213; Cook Ev-
ans' Rep. (1858).
The offence of conspiracy is ren-
dered complete by the bare engage-
ment and association of two or
more persons to break the law,
without any act being done in pur-
suance thereof by the conspirators.
O'CmneUy, Reg. (in error), 11 C.
A F. 155 ; 9 Jur. 25.
An indictment will lie for con-
spiring by false representations of
fact to induce a person to forego a
claim, although the result of such
conspiracy is not to deprive him of
his nght to enforce payment thereof
by action. Beg, v. Carlisle^ Dears.
C. C. 387 ; 2 C. L. R. 479 ; 18 Jur.
386 ; 23 L. J., M. C. 108 ; 6 Cox,
C. C. 366.
' A. and B. in concert with each
other, falsely pretended to C. that a
horse which they had for sale had
been the property of a lady deceased,
and was then the property of her
sister, and was not then the proper-
ty of any horse-dealer, and that the
horse was quiet to ride and drive, and
by these misrepresentations induced
C. to purchase the horse: — Held,
that they were indictable for con-
spiracy, although the money was to
be obtained through the medium of
a contract. Beg, v. Kennck, 5 Q.
B. 49 ; D. & M. 208 ; 7 Jur. 848 ;
12 L. J., M. C. 135.
Where the evidence in support
of a conspiracy shews the object of
the conspiracy to be in itself fel-
onious, and that a felony was com-
mitted in carrying it out, the de-
fendants are not entitled to an ac-
quittal on the ground that the mis-
demeanor is merged in ^he felony ;
nor is it any ground for arresting
the judgment, that on the face of
the indictment itself the object of
the conspiracy amounts to a felony,
the gist of the offence chained being
the conspiracy. Beg, v. Button, 11
Q. B. 929 ; 12 Jur. 1017; 18 L. J.,
M. C. 19 ; 3 Cox, C. C. 229.
An indictment for conspiracy to
violate the provisions of a statute
will lie after the repeal of such stat-
ute, for an offence committed be-
fore the rei)eal. Beg, v. Thompson,
16 Q. B. 832 ; Dears. C. C. 3 ; 15
Jur. 654 ; 20 L. J., M. C. 183.
A conspiracy cannot exist without
the consent of two or more persons,
and their agreement is an act in
advancement of the intention which
each of them has conceived in his
mind. Mulcahy v. Beg. (in error),
3 L. R., H. L. Cas. 306 : S. C, Ir.
Q. B., 1 Ir. R., C. L. 13.
2. Trade Combinations,
A combination of workmen, for
the purpose of dictating to masters
108
CONSPIRACT.
whom they shall employ, is indict-
able. jRex y. Byh&rduce^ 1 M. &
Rob. 179— Patteson.
An indictment for a conspiracy
to impoyerish a man, by preyenting
him from working at his trade, need
not state the oyert acts used to ef-
fect the intended mischief. Rex y.
Ecde*, 1 Leach, C. C. 274.
A conspiracy to obstruct a manu-
facturer in carrying on his business,
by inducing and persuading work-
men who had been hired by him to
leaye his seryice, in order to force
him to raise his rate of wages, or to
make an alteration in the mode of
conducting and carrying on his
trade, is an indictable ojQTence ; and
an agreement to induce and per-
suade workmep, under contracts of
seryitude for a time certain, to ab-
sent themselyes from such service,
is an indictable offence, although
no threats or intimidation are prey-
ed, or any ulterior object ayerred.
Reg. y. Buffidd, 5 Cox, C. C. 404
—Erie.
Workmen who agree that none
of those who make the agreement
will go into employ unless for a
certain rate of wages, haye no right
to agree to molest, or intimidate, or
annoy other workmen in the same
line of business, who refuse to enter
into the agreement, and who choose
to work for employers at a lower
rate of wages. Ih,
In these cases the essence of the
offence is the combination to carry
out an unlawful purpose, and the
imlawful combination or conspiracy
is to be inferred from the conduct
of the parties. Ih,
If persons conspire together to
take away the workmen of a man-
ufacturer, that constitutes such an
obstruction and molestation of him
as to support that part of a count
which alleges a conspiracy by mo-
lesting and obstructing him. Ih.
If a handbill says that certain
things will be done by certain per-
sons, and that handbill is circulated
where it is probable those persons
could see it, and tliey do the yery
thing that the handbill indicates they
woidd do, the contents of the hand-
bill are admissible against Ihem.
Ih.
In order to render the speech of
a third person at a meeting admis-
sible on an indictment for conspir-
ing against third parties, not pres-
ent at that meeting, it must be
shewn either that sudi third person
was co-operating at that time with
the defendants as a co-conspirator,
and engaged with them in one com-
mon purpose, or that he was acting
as the agent of the defendant. lb.
An indictment charged the de-
fendants with conspiring to force
workmen hired and employed by
P. in his business of a japanner to
depart from their emplojTnent, by
unlawfully molesting them ; by im-
lawftiUy using threats to them ; by
unlawfully intimidating them; by
unlawfully molesting I*., and by
unlawfully obstructing P. so carry-
ing on his business, and the work-
men so hired : — ^Held, that these
counts were sufficiently ftill and
certain, and that the means by
which the conspiracy was to be
carried on were well stated in the
words of the 6 Geo. 4, c. 129, s. 3.
Reg. y. Rowlands, 17 Q. B. 671;
21 L. J., M. C. 81 ; 5 Cox, C. C. 436.
See Hilton y. Echersley, 1 Jur., N.
S. 874 ; 24 L. J., Q, B. 853 ; 6 a
& Bl. 47.
The Philanthropic Society of
Coopers was formed in order to
relieye its members when ack, and
to proyide for their fiinerals. One
of their members was fined by
them for working in a yard where
steam machinery was used, and
upon non-payment of the fine they
acted in such a way as to prevent
him from obtaining work : — ^Held,
an illegal combination and cons^-
acy. Keg. y. Hewitt^ 5 Cox, C. C.
162 -- Campbell.
An indictment against joumev*
men for a conspiracy against their
employers, to preyent them from
INDICTMENT.
109
tekbg any appfenticee, is proved by
evidence of their having quitted
their employment with an intention
to compel such employers to dis-
miss any person as an apprentice.
Bex, V. JFerguaan^ 2 Stark. 489—
Wood.
An indictment for conspiring ^'to
prevent the workmen of J. G. from
continuing to work, &c.," is sup-
ported by evidence of a conspiracy
to prevent any from continuing,
&c. JRex V. Bykerdike^ 1 M. &
Bob. 179— Patteson.
3. Parties Indictable.
Where two conspire, and one
dies, the other may still be indicted
for the conspiracy. HexY.NichoQsy
13 East, 412, n.
Three persons being in a public-
house wiUi the prosecutor, one of
them m concert with the other two
placed a pen case on the table and
left the room. Whilst he was ab-
sent, one of the two remaining took
the pen out of the case, and put a
pin in its place, and the two in-
duced the prosecutor to bet with
&e other, when he returned into
the room, that there was no pen in
the case, and the prosecutor staked
^. On the pencil case being
turned np, another pen fell into the
prosecntor's hand, and the three
took the money : — ^Held, that the
evidence supported a conviction up-
on a count chamng the three with
conspiring by raise pretences and
fraudulent devices to cheat the
prosecutor of his money, although
It appeared that he had the inten-
tion of cheating one of the three if
he could. JReg. v. HvdMn^ Bell,
C. C. 263; 8 Cox, C. C. 805; 6
Jur., ^. S. 566 ; 29 L. J., M. C.
1^;8 W.B.421; 2 L. T., N. S.
263.
4. Indic^l/meffd.
In an indictment for a conspiracy
to extort mon^, one count averred
that the defendsmts, in pursuance of
a conspiracy to extort money from
the prosecutor, falsely exhibited cer-
tain indictments against him ; an-
other count averr^ that the de-
fendants, in pursuance of the like
conspiracy, offered to suppress an
indictment pending agamst the
prosecutor, it he would give them
money for so doing. The jury
found the defendants guilty, but
found specially, that the indict-
ments preferred by them against
the prosecutor were not false : —
Held, that the averment in the
former count was immaterial, and
that the latter count would support
the conviction. Rex v. Hodingber^
ry, 6 p. & R. 845 ; 4 B. & C. 329.
An indictment to conspire to raise
the price of funds with intent to
injure the persons who should pur-
chase is well enough, without speci-
fying the particmar persons who
purchased as the persons intended
to be injured. Rex v. De Beren-
ger, 3 M. & S. 68.
An indictment charged that the
defendants conspired, by divers false
pretences and subtle means and de-
vices, to obtain from A. divers large
sums of money, and to cheat and
defraud him thereof :— Held, that
the gist of the offence bein^ the
conspiracy, it was quite suffacient
only to state that fact and its ob-
ject, and not necessary to set out
the specific pretences. Rex v. OiUy
2 B. & A. 204.
In an indictment for a conspira-
cy, in producing a false certificate
in eviaence, it is not necessary to
set forth that the defendants knew
at the time of the conspiracy that
the contents of the certificate were
false ; it is sufficient that for such
purpose they agreed to certify the
fact as true, wiuiout knowing that
it was so. Rex v. Mawbey^ 6 T. K.
619.
An indictment to cheat and de-
fraud a party of the fruits and ad-
vantages of a verdict obtained, is
too general, and bad in point of
law. Rex v. Richardson^ 1 M. &
Bob. 402— Denman.
110
CONSPIRACY.
Where the overt acts were charged
to have been done with intent to de-
fraud L. G., who was entitled to re-
ceive the sum of money in questioft,
and the jury found that L. G., was
not so entitled : — Held, that a ver-
dict of guilty could not be support-
ed. Reg, V. Dearly 4 Jur. 364.
A count for conspiring to deceive
and defraud divers of her majestv's
subjects who should bargain with
the defendants for the sale of goods,
of great quantities of such goods,
without making payment, remuner-
ation or satisfaction for the same,
with intent to obtain profit and
emolument to the defendants (not
stating with particularity what the
defendants conspired to do), is bad,
as not shewing that the conspiracy
was for a purpose necessarily crim-
inal. Reg, V. Pecky 9 A. & E. 686 ;
1 P. & D. 508.
But it is no objection that the
count does not name the parties
who were to have been defrauded.
lb,
A count charging that the de-
fendants, being indebted to divers
persons, conspired to defraud them
of the payment of such debts, and
in pursuance of such conspiracy ex-
ecuted a false and fraudulent deed
of bargain and sale and assignment
of certain goods from two of them-
selves to a third, with intent there-
by to obtain emoluments to them-
selves, is bad, for omitting to shew
in what respect the deed was false
and fraudulent. lb,
A Urst count of an indictment
charged that the prisoners, intend-
ing to defraud one J. G., did con-
spire to cheat and defraud J. G., of
a certain large sum of money, to
wit, 201, The second charged a
conspiracy, by false pretences, to
obtain from J. G. a large sum of
money, to wit, 20/., and to cheat
and defraud him thereof. The third
count chained a conspiracy by false
pretences feloniously to steal from
J. G. a large sum of money, to wit,
20/. The K)urth count charged an
attempt, by false pretences, to ob^
tain irom J. G. tne sum of 20/.,
with intent to defraud. The fifth
and last count charged that the
prisoners, by false pretences, did
attempt to steal from J. G. a lam
sum of money, to wit, 20/., of the
monies of the said J. G. The pis-
oners were found guilty, and judg-
ment was passed on each count
They were convicted on all the
counts, and were sentenced to a dis-
tinct punishment on each : — ^Held,
that the fifth and last was a good
count, and that the conviction most
therefore be affirmed. Reg, v. Bd-
lock, Dears. C. C. 653 ; 25 L J.,
M. C. 92.
An indictment charging that the
defendants unlawfully, fraudulently
and deceitfully did conspire, com-
bine, confederate and agree togeth-
er, to cheat and defraud the prose-
cutor of his goods and chattels, is
good. SydaerffY, Reg, (in error),
11 Q. B. 245 ; 12 Jur. 418— Exch.
An indictment charged that the
defendants conspired to cheat and
defraud certain liege subjects of the
Queen, being tradesmen, of quanti-
ties of their goods ; that, in pursu-
ance of the conspiracy, the defend-
ant B. fraudulently ordered and
obtained upon credit from W. W.
and C. W., upholsterers, div»8
goods of W. W. and C. W. (the
count stated a like obtaining on
credit from other tradesmen named,
and from others whose names were
unknown); and that, in further pur-
suance of their conspiracy, and in
order that the goods might be taken
in execution and sold, as after men-
tioned, the defendants ordered the
same to be delivered by W. W. and
C. W. at the house of B., and they
were so delivered and never paid
for ; and in further pursuance, &o,^
and in order, &c., B. allowed them
to continue in his house till they
were taken in execution as afUr
mentioned. That the defendants,
in further pursuance, Ac, did false*
ly and fraudulently pretend that
INDICTMENT.
Ill
certam debts were due from B. to
K. and P., two others of the de-
fendants, and K. and P. did, to
obtain payment of such fictitious
debts, by collusion with B., com-
mence actions against B.; that K.
and P. collusively signed judgment
against B. in the actions, and issued
execution thereon, by virtue of
which the goods, before the expira-
tion of the times of credit, were
teken in execution, and sold to sat-
isfy the fictitious debts : and so the
jurors found the defendants in man-
ner and means aforesaid did cheat
and defraud W. W. and C. W. of
the goods : — Held, that the indict-
ment was g^ood, Reg, v. King^ 7
Q. B. 782 f D. & M. 741 ; 8 Jur.
662; 13 L. J., M. C. 118.
Error being brought upon the
judgment : — Held, that the indict-
ment was bad, for that the words
alleging conspiracy shewed a design
to injure, not tradesmen indefinite-
ly, but individuals, and therefore
either the persons should have been
named, or an excuse stated for not
naming them, and that the allega-
tion of conspiracy was not aided
bv the overt acts : and that the
overt acts themselves did not,
either in connexion with the allega-
tiou of conspiracy, or independent-
ly, amount to indictable misde-
meanors. £'ing v. Seg, (in error),
7 Q. B. 782 ; 9 Jur. 833 ; 14 L. J.,
M. C. 172— Exch. Cham.
A count stated that the defend-
ants conspired to cause goods, wares
.and merchandise, which had been
imported into the port of London,
whereof duties of customs were
then and there due and payable, to
be taken and carried away from the
port, and to be delivered to the
owners thereof, without payment of
a great part of the duties of cus-
toms so then and there due and
payable thereon: — ^Held, that the
girt of the offence being the con-
^fHiaey, it was not necessary to
specify the goods, wares and mer-
chanmses, or the duties payable
thereon. Heg, v. Blake ^ 6 Q. B.
126 ; 8 Jur. 145 ; 13 L. J., M. C.
131.
An indictment for a conspiracy
to obtain goods by false pretences
was bad, before 14 <& 15 Vict. c.
100, 8. 8, if it did not state to whom
the goods belonged. Meg. v. Park-
er, 2 G. & D. 709 ; 3 Q. B. 292 ; 6
Jur. 822.
A coimt charged the defendants
with a conspiracy, by false pre-
tences and subtle means and de-
vices, to extort from T. E., one
sovereign, his monies, and to cheat
and defraud him thereof; the evi-
dence failed to prove that the de-
fendants employed any false pre-
tence in the attempt to obtain the
money : — Held, that so much of the
count might be rejected as surplus-
age, and the defendants convicted
of the conspiracy to extort and de-
fraud. Reg. V. Yates, 6 Cox, C.
C. 441.
In an indictment for conspiracy
at common law to effect objects
prohibited by a statute, it is enough
to follow the words of the act of
Earliament. Reg, v. Rowlands, 2
>en. C. C. 364 ; 16 Jur. 268 ; 21
L. J., M. C. 81.
An indictment that C. died pos-
sessed of East India stock, leaving
a widow ; that the defendants con-
spired, by false pretences and false
swearing, to obtain the means and
power ol obtaining such stock ; that
m pursuance of such conspiracy,
they caused to be exhibited in the
prerogative Court of Canterbury a
false aflidavit made by one of them,
in which the deponent stated that
C.'s widow had died without tak-
ing out administration to C, and
that deponent was one of her chil-
dren ; and that the defendants
fraudulently obtained to deponent,
as one of the children of C, a
grant of administration to his es-
tate. On motion to arrest the judg-
ment, on the ground that a charge
of conspiracy to obtain the means
and power of obtaining the stock,
112
CONSPIRACY.
did not describe any offence: —
Semble, that the statement of the
overt act done in furtherance of the
objects of conspiracy was so inter-
woven with the charge of conspir-
acy itself, as to show an unlawful
conspiracy. Wright v. JReg, (in
error), 14 Q. B. 148.
But held, that at all events the
overt acts in themselves consti-
tuted a misdemeanor, on which the
court could legally pronounce judg-
ment, lb.
A count merely charging con-
spiracy in the same manner, with-
out alleging the overt acts, is bad.
Tb,
The defendants were tried at a
quarter sessions upon an indict-
ment, one of the counts of which
charged a conspiracy, " by divers
false pretences against the statute
in that case made and provided,
the said R. B. of his momes to de-
fraud, against the form of the stat-
ute":— ^Held, that the count suffi-
ciently charged a conspiracy to ob-
tain money by false pretences, and
that it must be taken, after verdict,
that the conspiracy was one of which
a court of quarter sessions had cog-
nizance, under 5 & 6 Yict. c. 38, s.
1. Latham v. Reg. (in error), 9
Cox,.C. C. 516; 6 B. & S. 635 ; 10
Jur., N. S. 1145 ; 33 L. J., M. C.
197 ; 12 W. R. 908 ; 10 L. T., N.
S. 571.
A count is good which simply
charges that the defendants, unlaw-
fully, &c., did conspire, combine,
confederate and agree together, by
divers false pretences and incUrect
means, to cheat and defraud R. of
his monies. Beg. v. Gompertz^ 9
Q. B. 824 ; 11 Jur. 204; 16 L. J.,
Q. B. 121.
In an indictment charging a con-
spiracy to cheat and de&aud J. D.
and others of goods, and laying as
an overt act. the obtaining goods of
J. D. and others, the word " others"
must mean " others his partners "
throughout, and evidence of con-
spiring to defiraud other persons
than J. D. and his partners is ad-
missible. Heg. V. St^el^ 2 M. C.C.
246 ; Car. & M. 337.
An indictment that certain per-
sons " unlawfully, maliciously and
seditiously did conspire and agree
with each other, and with divers
other persons unknown, to raise and
create discontent and disaffection
amongst the liege subjects of her
Majesty, and to excite such subjects
to hatred and contempt of the gov-
ernment and constitution of this
realm as by law established, and to
unlawful and seditious opposition to
the government and constitution;
and also to stir up jealousies, hatred
and ill-will between different classes
of her Majesty's subjects, and es-
pecially amongst her Majesty's sub-
jects in Ireland, feelings of ill-will
and hostility towards and against
her Majesty's subjects in other parts
of the United Emgdom called En-
gland":— Held, that this state-
ment, with or without the addi-
tional charge, " and to assume and
usurp the prerogative of the crown
in the establishment of courts for
the administration of law," consti-
tuted a definite charge against the
several defendants of an agreement
between them to do an illegal act.
0*ConneU v. Reg. (in error), 11 C.
& F. 155 ; 9 Jur. 25.
A count setting forth an agree-
ment between persons "to canse
and procure, and aid and assist in
causing and procuring, diverse sub-
jects of her Majesty, unlawfully,
maliciously and seditiously, to meet
and assemble together in large
numbers, at various times and at
different places within Ireland, for
the unlawful and seditious purpose
of obtaining, by means of the intimi-
dations to be thereby caused, and by
means of the exhibition and dem-
onstration of great physical foroe
at such assemblies and meetings,
changes and alterations in the gov^
emment, laws and constitution of
the realm by law established,"
whether or not comprehending the
EVIDENCE.
113
additional words, " and especially,
by tbe means aforesaid, to bring
about and accomplish a dissolution
of the legislative union now subsist-
ing between Great Britain and Ire-
land," and whether or not omitting
tbe words " unlawfully, maliciously
and seditiously," does not sufficient-
ly state the illegal purpose of such
agreement, and is, therefore bad
for uncertainty. Tb,
ITie word " intimidation," not
bemg vocabulum artls, has not, nec-
essarily, a meaning in a bad sense ;
and in order to give it legal effica-
cy, it ^ould at least appear, from
the context of the indictment, what
species of fear was intended, and
npon whom such fear was meant to
operate, Ih.
5. Particulars of Overt Acts.
Particulars in an indictment for
conspiracy having been ordered of
overt acts, the counsel for the
Crown were confined within them ;
bat particulars pending the trial
having been ordered, of bid debts
mcurred to the bank by one of the
defendants, the Crown was not re-
strained, next day, the particulars
not having been delivered, from
giring evidence on that head. Jieg.
T. Esdaile, 1 F. <fc F. 213 S. C,
%. v. Brown^ 8 Cox, C. C. 69—
Campbell.
If tbe counts for a conspiracy are
feamed in a general form, a judge
will order that the prosecutor
dwuld furnish the defendants with
a particular of the charges ; and
that particular should give the
same information to the defendants
that would be given by a special
wont But the judge will not
compl the prosecutor to state in his
particular the specific acts with
which tbe defendants are charged,
and tbe times and places at which
those acts are alleged to have oc-
cmed. Rex v. J^miUon, 7 C. &
P. 448-Littledale.
Where an indictment for con-
spiracy charges the offence in gen-
Fisu. Dig.
eral terms, the defendant is entitled
to particulars of the charge, al-
though there has been a previous
committal by a magistrate. Tliere-
fore, where an indictment contain-
ed counts charging a conspiracy to
cheat tradesmen of goods, without
mentioning any specific case, or
name, time or place : — Held, that
the defendant was entitled to such
particulars. JReg, v. Rycrofl^ 6 Cox,
C. C. 76— Williams.
6. Emdence,
On an indictment for conspiracy,
where there is evidence of sever-
al persons having engaged therein,
what is said by any of them at an-
other time and place respecting the
object of the conspiracy is evidence
against the others. Rex v. Salter^
5 Esp. 125— Hotham. And see Rex
V. Hammond^ 2 Esp. 719.
So, in an indictment for a con-
spiracy to cause themselves to be
believed persons of large property,
for the pui-pose of defrauding trades-
men, the prosecutor may give var-
ious instances of their giving a false
representation of their circumstan-
ces, as overt acts of the conspiracy.
RexY. Roberts, 1 Camp. 399; 2
Leach, C. C. 987, n.— Ellenbor-
ough.
But the wife of one defendant
cannot be called on behalf of a co-
defendant, though the parties ap-
pear and defend separately. Rex
v. Locker y 5 Esp. 107— Ellenbor-
ough.
Nor one defendant who suffers
judgment by default. Rex v. La-
fone, 5 Esp. 155— rEllenborough.
If, on a charge of conspiracy, it
appears that two persons, by their
acts, are pursuing the same object
often by the same means, one per-
forming part of an act, and the oth-
er completing it, for the attainment
of the object, the jury may draw the
conclusion that there is a conspiracy.
Reg. V. Murphy, 8 C. & P. 297—
Coleridge.
If a conspiracy is formed, and a
114
CONSPIRACY.
person joins it afterwards, he is
equally guilty with the original
conspirators. Ih,
On the trial of an indictment for
a conspiracy to procure large num-
bers of persons to assemble for the
purpose of exciting terror in the
minds of her Majesty's subjects, ev-
idence was given or several meet-
ings at whicn the defendants were
present, and it was proposed to ask
a witness, who was superintendent
of the police, whether persons com-
plained to him of bein^ alarmed by
these meetings: — Held, that the
evidence was receivable, and that
it was not necessary to call the pei^
sons who made the complaints.
Reg. V. Vincent, 9 C. & P. 275—
Gumey.
A. was charged with havmg con-
spired with J. and others unknown
to raise insurrections and obstruct
the laws. It was proved that A.
.and J. were members of a chartist
lodge, and that A. and J. were at
the house of the latter on a certain
day, on the evening of which A.
directed the people assembled at
the house of J. to go to the race-
course at P., whither J. and other
persons had gone : — ^Held, that, on
the trial of A., evidence was receiv-
able that J. had at an earlier part
of the day, directed other persons
to go to the race-course ; and it be-
ing proved that J. and an armed
party of the persons assembled went
from the New Inn : — Held, that,
evidence might be given of what J.
said at the New &n, it being all
one transaction. Reg. v. SheUard, .
9 C. & P. 277— Patteson.
General evidence of the conspir-
acy charged may be received in the
first instance, although it cannot
affect the defendant unless after-
wards brought home to him, or to
an agent employed by him. And
the same rule applies where a de-
fendant seeks by such general evi-
dence in the first instance to affect
the prosecutor with a conspiracy to
suborn witnesses for the destruction
of the defence, provided the pro-
posed evidence is previously opened
to the court, as in the case of a pros-
ecution to be proved by conspiracy.
The Queen's case, 2 B. & B. 302.
On an indictment for conspiriog
and unlawfully meeting for the pur-
pose of exciting discontent and dis<
affection, resolutions passed at a for-
mer meeting, in another place, and
at which one of the defendants pre-
sided, the professed object of which
meeting was to ^x the meeting
mentioned in the indictment, are
admissible to shew the intention o
such defendant in assembling and
attending the meeting in questi<Hi,
at which he also presided. Rex v.
Bunt, 3 B. & A. 566.
A copy of these resolutions deliv-
ered by such defendant to a witness
at the time of the former meeting,
as the resolutions then intended to
be proposed, and which correspond-
ed with those which the witness had
heard read from a written paper, is
admissible without producing the
original. Ih.
And large bodies of men having
come to the latter meeting from a
distance, marching in regular order,
it was admissible to shew the char-
acter and intention of the meeting,
that within two days of the same
great numbers of men were seen
training and drilling before day-
break, at a place from which one of
these bodies had come to the meet-
ing, and on their discovering the
persons who saw them, they ill-
treated them, and forced one of
them to take an oath never to he a
king's man again ; and it was ad-
missible^ for the same purpose, to
shew that another body of men in
their progress to the meeting, on
passing the house of one of the per
sons who had been so ill-treated,
expressed their disapprobation at
his conduct by hissing. lb.
An indictment for a conspracy
contained several counts, alleging
several misdemeanors on the same
day: — Held, that the prosecutor
EVIDENCE.
115
might give evidence of several mis-
demeanors on different days. Hex
V. Lev^, 2 Stark. 458— Abbott.
On an indictment for a conspira-
cy, the letters of one of the defend-
ants to the other are, under certain
drcmnstances, admissible in evi-
denoe in his favor, to shew that he
was the dape of the other, and was
not himself a participator in the
fiaud. Hex v. Whitehead, 1 C. & P.
67— Best^
A party may be convicted of a
conspiracy to cheat and defraud, by
means of a false and fraudulent rep-
ree^tation as to the solvency or the
trade of another, although the rep-
resentation was oral, and one for
which per se, he would not be civ-
illy liable under 9 Geo. 4, c. 16, s.
14 ; bat the question will be not
merely whether the representation
was false and fraudulent, but
whether it was made in collusion
witii the co-defendant, for the pur-
pose of cheating the prosecutor.
%. V. Timothy, 1 F. & F. 39—
Channell.
On an indictment for a conspiracy
to defraud by false representations
of solvency, ihe defendants may be
convicted who had no knowledge of
the transactions which resulted in
insolvency, provided they were
aware of the result, and concurred
in the representations in furtherance
of the common design, even al-
though .they did so with no motive
of particular benefit to themselves.
Seg, V. EsdaUe, 1 F. & F. 213 ; S.
G nom. Heg. v. Broton, 7 Cox, C.
C. 442--Campbell.
Overt acts m conspiracv, though
not necessarily laid, and if laid not
proved as against all the defend-
ants, may be looked at as shewing
the object of the conspiracy. lb.
Certain wharfingers and their serv-
ants were indicted for a conspiracy
to defraud by false statements as to
goods deposited with them and in-
sured by the owners against fire : —
Held, that evidence that false state-
ments were knowingly sent in by the
servants, which would be for the
benefit of the masters, and that af-
terwards the servants took fraudu-
lent means to conceal the falsehood
of the statements, with evidence that
the employers had the means of
knowing the falsehood, and knew of
the devices used to conceal it, was no
evidence to sustain the charge of a
fraudulent conspiracy between the
employers and servants. Meg, v.
Barry, 4 F. & F. 389— Martin.
A prisoner was indicted in one
count for obtaining money from the
trustees of a savings bank by pre-
tending that a document produced
by the wife of T. had been filled up
by his authority, and in another
count for a conspiracy with the wife
of T. to cheat the bank. The wife
was not indicted. The evidence of T.
having been received in support of
the indictment, the piisoner was ac-
quitted on the count for conspiracy,
and convicted on the other : — Held,
that T.'s evidence was properly re-
ceived, and that there was no incon-
sistency in the finding of the Jury
on the two counts. Reg. v. naUu
day, 8 Cox, C. C. 298 ; 6 Jur., N. S.
514 ; 29 L. J., M. C. 148 ; 8 W. R.
423 ; 2 L. T., N. S. 254.
Where an indictment charges an
ordinary conspiracy, it is not neces-
sary to prove a common design be-
tween the defendants before proving
the acts of each defendant ; for the
acts of each defendant are only evi-
dence against himself, and may be
the only meaus of establishing the
conspiracy. Meg, v. Brittain, 3 Cox,
C. C. 77— Coltman.
Information for a conspiracy to
cause and procure goods to be im-
ported without payment of part of
the duties of customs, by entering
the goods as less in quantity and
quahty than they really were. One
of the defendants, 6., was a land-
ing-waiter; the other T., who did
not appear to take his trial, was a
Custom-house agent. According to
the course of business at the Cus-
tom-house, certain goods consigned
116
CONSPIRACY.
to T. were placed in the custody of
B., and, upon the examination of
them, entries of the quantity and
quality were made by B. and T.
respectively in separate books, and
the amoimt of duty was calculated
thereupon: — ^Held, first, that evi-
dence of an entry made by T. in
his ledger, purporting to be an entry
of the same goods, but varying from
the preceding entries in respect to
the quantity, was admissible for the
purpose of proving the conspiracy, as
an act tending towards the object
of the conspiracy. Reg. v. Elake^ 6
Q. B. 126 ; 8 Jur. 666 ; 13 L. J., M.
C. 131.
Held, secondly, that evidence of
a memorandum made by T. on the
counterfoil of a cheque drawn by
him, that part of th?money aridng
from the fraud was received by B.,
was inadmissible, it being a declar*
ation of T. after the principal trans-
action was complete. Ih,
In the course of proving a conspir-
acy to defraud, carried into eftect
by prevailing upon the prosecutor
to accept bills, a warrant of attor-
ney, given to him for the purpose of
inducing him to accept, reciting the
acceptance, may be given in evi-
dence, though unstamped. Meg^ v.
Gompertz, 9 Q. B. 824 ; 11 Jur. 204 ;
16 L. J., Q. B. 121.
An indictment for conspiring to
defraud the prosecutor may be sup-
ported by proof of a conspiracy to
obtain his acceptances, though the
prosecutor parts with no money,
and though he never has intended
to take up the acceptances, and
though the bills were never in his
hands, except for the purpose of his
accepting. lb.
Where an indictment for conspir-
acy contains several counts, if only
a single conspiracy is proved, the
verdict may nevertheless be taken
on so many of the counts as describe
the conspiracy consistently with the
proof. lb.
In support of an indictment charg-
ing a conspiracy to defraud and de-
prive B. of certain lease-hold messu-
ages, whereof B. was lawfully pes-
sessed, and to cheat and ddraud
her of the rents and profits of the
messuages ; the evidence as to B.'s
title was that F., before her death,
directed S., lier next-of-kin, to con-
vey the messuages to B. on account
of a supposed equitable claim of B.
to money received by F. S., after
the death of F., and before adminis-
tration, executed an agreement to
assign to B., and went with her to
the houses, and pointed out the prop*
erty, and said B. was landlady, and
he hoped the tenants would not
shuffle with her as they had wth
F. B. afterwards received a §mall
sum as rent. Thei-e was no proof
that F. or S. was ever in possession,
and no other evidence of B.'s title:
— ^Held, that thei'e was some evi-
dence of a possession by B. to sup-
port the averment in the indictment
Eeg. V. Whitehouse, 6 Cox, C. C.
129— Cresswell.
An indictment alleging that I,
W., C. W. and J. W., being persons
in indigent circumstances, and in-
tending to defraud tradesmen who
should supply them with goods up-
on credit, conspired to cause J. TV.
to be reputed and believed to be a
person of considerable property, and
m opulent circumstances, for the
purpose and ^dth the intent of cheat-
ing and defrauding divers persons
being tradesmen, who should bar-
gain with them for the sale to the
said I. W. of goods, the property
of such last-mentioned pei'sons, of
great quantities of such goods, with-
out paying for the same, with intent
to obtain to themselves money and
other profits, is not supported by
proof that C. W. and J. W., being
the wife and daughter of I. W., rep-
resented that they were in inde-
pendent circumstances, their income
being interest of money received
monthly ; at another time, when en-
gaging lodgings, that they were not
m the habit of living in lodgings,
and that they obtained various
TRIAL AND VERDICT.
117
goods from tradesmen on credit,
under circumstances that shewed
an intent to defraud, but no proof
bemg adduced that those goods
were obtained by reason of any of
those general statements. Reg. v.
Wfdt^ome, 6 Cox, C. C. 38— Piatt.
A count charging the defendants
with conspiring, by divers subtle
means and false pretences, to obtain
goods and chattels from a trades-
man, without paying for them, with
intent to defraud him thereof, is
supported by proof of overt acts,
from which a conspiracy may be in-
ferred, without proof of any such
fiiLse pretence as is required in an
indictment for obtaining goods by
false pretences. Ih.
On an indictment against A., 6.,
C.,D., R, F., G. and H., for conspir-
acy to cheat M. by selling a gland-
ere<l horse as a sound horse, the evi-
dence was, that A., having pre-
vioQsly cheated M. by selling him a
kicking horse, B., C, D. andE. ob-
tained that horse from M. in ex-
change for a glandered horse, w^hich
he subsequently sold. A., accom-
panied by G., afterwards sold M.
another horse, in which transaction
the latter was again defrauded.
Some evidence was ffiven to shew
tiiat A. was frequently in company
with some of the other defendants,
and that he was aware of a previous
sale of the glandered horse by them,
bat there was no other evidence to
connect him with its sale to M. : —
Held, that, in the absence of any
evidence clearly leading to the con-
clusion that A. was a party to that
sale, there was no evidence of a
conspiracy to go to the juty against
him. Reg, v. JReade, 6 Cox, C. C.
134— CresBwell.
A number of persons was charged
with murder, committed by an
act done in the course of a con-
spiracy for the puri30se of liber-
ating a prisoner, of which conspir-
acy he was cognizant : — Held, that
acts of that prisoner, within the
prison, and articles found upon him,
were admissible against the person
so charged. Heg. v. Desmond, 11
Cox, C. C. 146 — Cockbum and
Bramwell.
7. Tried and Verdict,
An indictment for a conspiracy
to defraud is triable at quarter ses-
sions. Latham \% Reg, (in error), 5
B. & S. 635.
A was indicted for conspiring
with Y. and Z., and other persons
to the jurors unknown. The evi-
dence was confined to A., Y. and
Z., and the jury was of opinion that
A. conspired with either Y. or Z.,
but said that they did not know
with which. Y. and Z. w^ere there-
upon both acquitted: — Held, that
A. was entitled to be acquitted also.
Reg, V. Thompson, 1 6 Q. B. 832 ; 5
Cox, C. C. 166. Reg, v. Denton,
Dears. C. C. 3 ; 17 Jur. 453; 20 L.
J., M. C. 183.
Upon a count charging one con-
spiracy, and one only, against all
the defendants therein named, to
effect several illegal objects, the
jury may find all or some guilty of
conspiring to effect one or more of
the objects specified. O* Connelly,
Reg, (in error), 11 C. & F. 155; 9
Jur. 25.
Wliere one defendant in conspir-
acy dies between the indictment and
trial, it is no ground of a venire de
novo for a mis-trial, if the trial pro-
ceeds agamst both, no suggestion
of the death being entered on the
record. Reg, v. Kenrick, 5 Q. B.
49; D. &, M. 208; 7 Jur. 848 ; 12
L. J., M. C. 135.
One of several prisoners indicted
for conspiracy may be tried separ-
ately, and upon conviction, judg-
ment may be passed on him, al-
though the others, who have ap-
peared and pleaded, have not been
tried. Reg, v. Aheame, 6 Cox, C.
C. 6.
Where three prisoners have been
jointly indicted for a conspiracy to
murder, and severally pleaded not
guilty, but have severed in three
118
DUELLING— EMBEZZLEMENT.
challenges, and the Crown has, con-
sequently, proceeded to try one of
such prisoners: — Held, that, upon
conviction of such prisoner, judg-
ment must follow, although the
others have not been tried, and that
the possibility of the other prisoners
being found not guilty (although
such a verdict wquld be a ground
for reversing the judgment), is not
a sufficient reason for holding such
judgment, and all the legal conse-
quences of such conviction of such
prisoner, irregular. Ih,
8. New THcd.
Where all of several defendants
in an indictment for conspiracy are
found guilty, if one of them shews
himself entitled to a new trial on
grounds not affecting the others,
the new trial will nevertheless be
granted. Reg» v Gompertz^ 9 Q. B.
824; llJur. 204; 16 L. J., Q. B.
121.
Xn. Duelling.
An endeavour to provoke another
to commit the misdemeanor of send-
ing a challenge to fight, is itself a
misdemeanor indictable, particular-
ly where such provocation was given
by a wilting containing libellous
matter, and alleged in the prefatory
part of the indictment to have been
done with intent to do the party
bodily haim, and to break the
king's peace; the sending such
writing being an act done towards
procurmg the commission of the
misdemeanor meant to be accomp-
lished. Rex V. PhiUipSy 6 East,
464 ; 2 Smith, 550.
If one kills another in a deliberate
duel, under provocation of charges
against his character and conduct,
however grievous, it is murder in
him, and his second, and therefore
the bare incitement to fight, though
under such provocation, is in itself
a very high misdemeanor, though
no consequence ensues thereon
against the peace. Rex v. Rice, 8
East, 581. See Rex v. KirwaUy 2
B. & A. 462 ; Reg. v. Young, 8 C.
& P. 644.
If a man writes a letter with in-
tent to provoke a challenge, seals it
up and puts it into the post-office in
Westminster, addressed to a pereon
in the city of London who receives
it there, the TiTiter may be indicted
for this offence in the county of
Middlesex. Rex v. WilUams, 2
Camp. 505 — ^EUenborough.
Xm. Embezzlement bt Ci^bks
AND Servants.
1. The Offence, 118.
2. Amounting to Larceny f or Embez-
zlement, 134.
S. Indictment, 136.
4. Particulctrs of Charges, 137.
5. Evidence, 138.
1. The Offence,
Statute.\— By 24 & 25 ^^ict c.
96, s. 68, " whosoever, being a clerk
" or servant, or being employed for
" the purpose or in the capacity of
" a clerk or servant, shall fraudu-
" lently embezzle any chattel, mon-
" ey or valuable security, which
" shall be delivered to or received,
" or taken into possession by him
" for or in the name or on the ac-
" count of his master or employer,
" or any part thereof, shall be deon-
" ed to have feloniously stolen the
" same from his master or employer,
"although such chattel, money or
" security was not received into the
" possession of such master or em-
" ployer otherwise than by the ac-
"tual posvsession of his clerk, ser-
" vant or other person so employed,
" and, being convicted thereof, shall
" be liable, at the discretion of the
" court, to be kept in penal servi-
" tude for any term not exceeding
" fourteen years and not less than
« five years (27 & 28 Vict. c. 47),
*' or to be imprisoned for any term
THE OFFENCE.
119
" not exceeding two years, with or
" without hard labour, and with or
" without solitary confinement, and
"if* a male under the age of sixteen
" years, with or without whipping."
{Former pravisioUj 7 & 8 Geo. 4, c.
29, s. 47, and this statute repealed
39 Geo. 3, c. 85.)
Whatts.l — Embezzlement neces-
sarily involves secrecy and conceal-
ment. If, therefore, instead of de-
nying the appropriation of property,
the prisoner, in rendering his ac-
count, admits the appropnation, al-
leging a right in himself, no matter
how unfounded, or setting up an
excuse, no matter how frivolous,
his offence in taking and keeping is
no embezzlement. Heff, v. Norman^
Car. & M. 501— Cresswell.
It w^as the duty of a servant
authorized to receive money for his
employer to account to his employ-
er on the evening of every day for
the money received during the day
by him for his employer, and to pay
over the amount. He received
three sums for his employer on three
different days, and neither accoimt-
ed for those sums nor paid them
over. He never denied the receipt
of them, or tendered any written
account in which they wel^ omit-
ted :— Held, that, if he wilfully om-
itted to account for these sums and
pay them over on the respective
days on which he received them,
these were embezzlements, and that
such wilful omissions to account
and pay over were equivalent to a
denial of the receipt of them. Reg,
\, Jackson, 1 C. & K. 384— Col-
eridge.
It was the duty of a clerk to re-
ceive money for his employer and
pay wages out of it, and to make
entries of all monies received and
paid m a book, and to enter the
weekly totals of receipts and pay-
ments in another book, upon which
last book he from time to time paid
over his balances to his employer.
The clerk having entries of weekly
payments in his first book amount-
mg to 25/., he entered them in
the second book as 35/. and, two
months after, in accoxmtiug with
his employer, by these means made
his balance 10/. too little, and
paid it over accordingly: — Held,
that he could not be convicted of
embezzlement, without' it being
shewn that he had received some
particular sum on account of his
employer, and had converted either
the whole or part of that sum
to his own use. Req, v. Chapman,
1 C. & K. 119— WilUams.
. If a person whose duty it is to re-
ceive money for his employer, re-
ceives money and renders a true ac-
count of all the money he has re-
ceived, he is not guilty of embezzle-
ment if he absconds and does not
pay over the money ; but, if he had
received the money, and had ren-
dered an account in which it was
omitted, this would be evidence to
shew that he had embezzled the
amount. Reg, v. Greed, LC. &K.
63— Erskine.
The prisoner, having been intrust-
ed by his master with a number of
articles of soldiers' clothing for the
purpose of selling them, and ten
pounds in silver, to enable him to
give change, sailed in a ship for the
coast of Africa, having, before his
departure, written to his master to
say that he would send the account
together with a remittance^ from
Madeira : — ^Held, that he could not
be convicted of embezzlement, hav-
ing received the goods from his
master himself, and not from an-
other for and on accoimt of his
master; but that he might have
been convicted of larceny. Reg,y.
Hawkins, 1 Den. C. C. 584 ; T. &
M. 328 ; 14 Jur. 513.
The prisoner had as a servant, in
the course of his duty, received from
a fellow-servant money paid to that
servant for his master by another
servant, who had received it from
the customers. It was the duty of
the prisoner, after such receipt, to
120
EMBEZZLEMENT BY CLEllKS, ETC.
hand tlie money to another servant
(the casliier) of his master, but in-
stead of handing it over, he fraudu-
lently retained it : — Held, that tliis
was embezzlement. Reg. v. Mcls-
ters, 1 Den. C. C. 832 ; t. &. M. 1 ;
2 C. & K. 930; 3 New Sess. Gas.
826; 12 Jur. 942; 18 L. J., M. C.
2; 8 Cox, C. C. 178.
The prisoner was employed to su-
perintend the grinding of com at
the mill of a county gaol. It
was his duty to direct any person
bringing grain to be ground at the
mill to obtain a ticket at the por-
ter's lodge. This ticket was his or-
der for grinding the grain so brought
to him, and it would have been a
breach of his duty to have ground
any grain without a ticket. Having
ground the com, he was to receive
the monev, and hand it over to the
Governor of the gaol. The prisoner
ad received money from different
persons, whose com he had ground
without the production of a ticket,
and appropriated it to his own use :
— Held,. that he had not received
the money on account of his master,
and was not therefore guilty of em-
bezzlement. Heg. V. Harris^ Dears.
C. C. 344; 2 C. L. R. 464; 18 Jur.
408; 23 L. J., M. C. 110 ; 6 Cox,
C. C. 363.
The prosecutor gave some mark-
ed money to J. W. to expend at his
(the prosecutor's) shop, for the pur-
pose of detecting a servant, of whom
the master had suspicions. The ser-
vant was convicted of embezzling a
portion of the marked money; —
Held, that the conviction was right.
Reg.'w GiU, Dears. C. C. 289 ; 18
Jur. 70 ; 23 L. J., M. C. 50 ; 6 Cox,
C. C. 295.
The prosecutor had contracted
with a railway company for finding
and i)roviding them with necessary
horses and carmen for the purpose
of conveying and delivering to the
customers of the company the coals
of the company in their own wag-
gons, and that he or his carmen
should day by day duly account for
and deliver to the com])any's coal
manager all monies received in j>ay- .
ment for coals so delivered. Tbe
delivery notes, as well as receipted
invoices of the coals, were handed
to ' the carmen of the prosecutor,
and the former were taken to his
office, but the invoices receipted by
the company were left with the
customers on payment of the
amount. The prisoner was the
servant of the prosecutor, cta-
ployed as his carman in the deliv-
ery of coals pursuant to the con-
tract, and it was his duty to pay
over direct to the clerks of the
company such monies as he might
receive for coals. He dehvered
coals to one of the company's cus-
tomers, and brought the delivery
order to the office to be entered ; he
received for the coals 5/. 10a., leav-
ing the receipted invoice -ftdth the
customer, which sum he converted
to his own use. He was convicted
of embezzling the monies of the
prosecutor, who had contracted
with the company : — Held, that
there was such pri\'ity between the
prisoner and the company as to
make the prisoner the agent of the
company in receiving tlie money,
and that such money was not re-
ceived for or on account of the
prosecutor, but for and on account
of the company, and that he was
wrongly convicted of embezzUng
the prosecutor's monev. Reg, v.
Beaumont, Dears. C. C. 270 ; 2 C.
L. R. 614; 18 Jur. 159 ; 23 L. J.,
M. C. 54 ; 6 Cox, C. C. 269.
A. was a carrier, residing at Som-
erton and going from that place to
Stoke and back, employed, howev-
er, only between the glove sewers
at Somerton and the manufacturers
at Stoke, in carrjTiig the gloves
from and to the one and the other.
The manufacturers knew nothing of
the sewers, but A. gave the name
of and took out a number for any
woman desiiing to be employed, re-
ceived unsewn gloves from the man-
ufacturers, and conveyed them to
THE OFFENCE.
121
the vomen at Somerton, taking
back the gloves when finished, ana
receiviDg the amoimt due to the
women for their work. The man-
Tifacturers looked to the women for
the work ; hut if any were missing,
and the women not found, they
held the prisoner accountable for
it. In accordance ^ath this course
of proceeding, A. received sewn
gloves from two of the women, de-
UTered them to the manufacturers,
and received the amount due for
the work, but fraudulently applied
the money so received to his own
nse. He was tried for and con-
Ticted of, embezzling the money of
the two women : — Seld, that the
relation of master and servant did
not subsist, but A. was a mere
trustee, and was only guilty of a
hreach of trust, and not of embez-
zlement, and therefore the convic-
tion was wrong. Iteff. v. Gribbs,
Dears. C. C. 445 ; 1 Jur., N. S.
•118 ; 24 L. J., M. C. 62 ; 6 Cox, C.
C. 455.
An instrument in the following
form is a contract for service by a
labourer, and not a contract of part-
nership : — " S. W. engages to take
charge of the glebe land of the
Rev. A. B., his wife undeitaking
the dairy and poultry, at 15^. a
week, till Michaelmas, 1850, and
afterwards at a salary of 25/. a
year, and a third of the clear an-
nual profits, after all the expenses
of rent, rate, labour and interest on
capital, ifcc, are paid, on a fair val-
uation, made from ]VIichaelmas to
Michaelmas. Three months' notice
on either side to be given, at the ex-
piration of which the cottage to be
vacated by S. W., who occupies it
as bailiff, in" addition to his salary.
—March 12th, 1850.— (Signed) A.
B., S. W." — ^The prisoner was di-
rected to account, and was in the
habit of accounting, with the wife
of the prosecutor. On the 4th Oc-
tober, the prisoner, in accounting
with her, denied the receipt of two
sums of money which he had re-
ceived for and on account of his
master, and appropriated them to
his own use : — ^Held, that he was
properly convicted of embezzle-
ment, although Michaelmas was
the time agreed upon when a valu-
ation was to take place, and the
profits were to be ascertained. Jieg.
V. Wortley, T. & M. 636 ; 2 Den.
C. C. 333 ; 5 Cox, C. C. 382 ; 15
Jur. 1137 ; 21 L. J., M. C. 44.
The prisoner was convicted of
embezzlement. It was his duty to
receive remittances from the cus-
tomers of his masters, to enter them
to the credit of such customei-s in a
day or cash-book, and to enter the
whole amount received by him on
the credit side of a banker's deposit
accomit, and to pay in the amount
to the credit of the prosecutors \\ath
their bankers ; and it was his duty
afterwai*ds to post the amounts in
a ledger, which contained the ac-
counts of the different customers.
The prisoner received a remittance,
which he appropriated to his own
use; he made an entry of this
amount in the ledger to the credit
of the customer, but he made no
entry of its receipt: — Held, that
the conviction was right, as the
entry made in the ledger did not
exempt the prisoner from the opera-
tion of the 47th section of the 7 &
8 Geo. 4, c. 29. JReg. v. Lister ^
Dears. & B. C. C. 118 ; 2 Jur., N.
S. 1124; 26 L. J., M. C. 26.
A. was indicted for embezzling
H.'s goods, and for larceny of H.'s
goods ; B. for receiving goods, the
property of H., knowing them to
have been stolen. A. was found
guilty of embezzUnff only, and B.
for feloniously receiving: — Held,
that the conviction of B. was right,
for 7 & 8 Geo. 4, c. 29, s. 47, en-
acts, that every person who has em-
bezzled within the meaning of that
section "shall be deemed to have
feloniously stolen from his master,"
and that being so, B.'s offence was
122
EMBEZZLEMENT BY CLERKS, ETC.
properly described in the count for
receiving. Reg, v. JFrampton^ 8
Cox, C. C. 16 ; 4 Jur., N. S. 566.
By Clerics and Servants,'^ — A.
gave his clerk 5/., out of which he
was to pay for an advertisement;
he paid 1/. but told A. he had paid
21, O5., 6c?., and accounted with A.
accordingly : — ^Held, no embezzle-
ment, liex V. Murray^ 5 C. & P.
145, n.; 1 M. C. C. 276.
A clerk who received six bank
notes on his master's accoimt, in
payment of a particular debt, made
a false entry m his master's book,
with a fraudulent intent to conceal
the payment of that sum, but after-
wards paid to the master the identi-
cal notes which he had received,
applying them, in his account, to
another debt received by him for
his master: — Held, that he was
guilty of embezzlement, in respect
of these six notes. JRex v. HaU, 3
Stark. 67— Bayley.
It is felony for the confidential
clerk of a merchant to take a bill
of exchange, unindorsed, from the
bill box, and convert it to his own
use, although he was in the habit of
transacting the cash concerns of the
house from week to week ; for, as
it had not been delivered to him for
such purpose by his employer, it is
a tortious taking from the posses-
sion of the master. Rex v. Chip-
chase, 2 Leach, C. C. 699 ; 2 East,
P. C. 567.
It was the duty of a clerk to re-
ceive monies daily at N., to enter
all such monies so received in a
book, and to remit the amount
weekly to L. His entries were all
correct, and admitted the receipt of
all the monies ; but he did not re-
mit them to L., as was his duty : —
Held, no embezzlement. Rex v.
Hodgson, 3 C. & P. 422— Vaughan.
A person employed upon com-
mission to travel for orders and col-
lect debts, was clerk within 89 Geo.
3, c. 85, and might have been in-
dicted for embezzlement, although
he was employed by many different
houses on each journey, and paid
his own expenses out of his com-
mission on each journey, and did
not live with any of his employers,
nor act in any of their counting-
houses. Rex V. Carr, R. <& R C.
C. 198.
A banker's clerk taking money
from the till, intending to embezzle
it, is guilty of felony, although the
cheque of a customer is left in liea
of it, if that customer has really
no cash in the banker's hands,
though both he and the banker
may suppose he has, and if the
cheque is drawn by the customer,
not to pledge his own credit with
the bank, or draw out money of his
own, but to draw out money the
prisoner falsely pretends to have in
nis name. Rex v. Hammon, R k
•R. C. C. 221 ; 2 Leach, C. C. 1088;
4 Taunt. 304.
A person received 71. 2s. 6d in.
his capacity of clerk to overseers
of a parish, and made an entry in
a book of the receipt of that som
accordingly, and placed the money
with other sums in his possession ;
the entry of IL 2«. 6d was after-
wards erased, and 51. 6«. lQ\d. sub-
stituted for it, and the prisoner only
accounted to the parish officere for
5^. 68. 10^. On an indictment for
embezzling IZ. 155. Id., and convic-
tion thereon : — Held, that as the
prisoner might have paid over the
whole of what he received for the 7/.
12s. 6d., and have taken the 1^. 15<.
7d. from other monies he i-eceived,
he was improperly convicted. Bex
V. Tgers, R. & R. C. C. 402.
If a clerk receives money from
his master to pay away on his
master's account, and he states in
his accounts that one of the pay-
ments was to a greater amount than
it really was, this will be no em-
bezzlement. Rex V. Murray, 5 C.
& P. 145 ; 1 M. C. C. 276.
A person whose duty it is to ob-
tain orders when and where he
likes, and to forward them to his
THE OFFENCE.
123
pindpal for execution, and then
has three months within which to
eoUect the money for the goods
seDt, is not a clerk or a servant.
Beg. V. Mayky 11 Cox, C. C. 150
—Russell Gumey.
If such a person, at the request
of his principal, collects a sum of
money from a customer, with the
obtaining of whose order he has
nothing to do, he is a mere volun-
teer, and is not liable to be prose-
cated for embezzlement if he does
not pay over or account for the
money so received. lb.
The prisoner was engaged by TJ.
at weekly wages to manage a shop.
U. assigned all his estate and effects
to R., and a notice was served on
the prisoner to act as the agent of
R. in the management of the shop.
For fourteen aiays afterwards K.
received from TJ. the shop monies.
Then the shop money was taken by
U. as before. The prisoner received
his weekly wages from U. during
the whole time. Some time after a
composition deed was executed by
R. and U., and II.'s creditors, by
which R, reconveyed the estate and
effects to II.; but this deed was not
registered until after the embezzle-
ment charged against the prisoner :
—Held, that he was the servant of
TJ. at the time of the embezzlement.
Beg. V. Dixon, 19 L. T., N. S. 384 ;
17 W. R. 189 ; 11 Cox, C. C. 178
-C. C. R.
By Servants.'] — A servant in the
employment of two persons, as part-
ners, must be considered as the
sen-ant of each. Itex v. Leech, 3
Stark. 70— Bayley.
If a servant receives money on
his employers' account, and embez-
zles it, he is guilty of a felony, al-
though they had no right to it, and
were wrong-doers in receiving it.
Bex V. BeaeaU, 1 C. & P. 312, and
Bex T. WeUinffs, ib. 454, 457.
So, if the party embezzling, is em-
ployed as the servant of a corpora-
tion, although not duly appomted
their servant, even under their com-
mon seal. Ib,
A., being one of several proprie-
tors of a Hereford and Birmmgnam
coach, horsed it from Hereford to
Worcester, and employed B. to
drive it when he did not himself
drive it; B. having all the gratui-
ties as well when A. drove as when
B. himself did so. It was the duty
of B., on each day when he drove,
to tell the book-keeper at Malvern
how much money he had taken;
the book-keeper entering that sum
in a book and on the way bill, to-
f ether with what he had taken
imself ; and he then had to pay
over the latter to B., who was to
give the two sums to A. B. gave
true accounts to the book-keeper,
who made true entries ; but B. ac-
counted for smaller sums to A.,
saying that those were all, and paid
over to A. these smaller sums. All
the proprietors were interested in
the money ; but A. was the person
to receive it, and he was accounta-
ble to his co-proprietors: — Held,
that this was embezzlement; and
that B. was rightly described in the
indictment as the servant of A.,
and that the money embezzled was
properly laid as the money of A.
Beg. V. White, 8 C. & P. 742—
Patteson.
Where the prosecutor gave his
servant a five-pound note to get
changed, which he did, and made
off with the change: — Held, that
it was an embezzlement and not a
larceny. Bex v. SuUens, Car. C. L.
319; IM. C. C. 129.
If a servant, to whom goods have
been delivered by his master to car-
ry to a customer, sells them and
converts the money to his own use,
he is guilty of felony ; for the pos-
session is not out of the master by
such delivery. Bex v. Bass, 1
Leach, C. C. 251 ; 2 East, P. C.
566, 698.
Where the owner of a colliery
employed the prisoner, as captain of
one of his barges, to carry out and
124
EMBEZZLEMENT BY CLERKS, ETC.
sell coal, and paid him for his labour
by allowing him two thirds of the
price for which he sold the coals
above the price charged at the col-
liery :— ;Held, that the prisoner was
a servant within the meaning of 39
Greo. 3, c. 85 ; and having embez-
zled the price, he was guilty of lar-
ceny within the meaning of that
act. Hex V. Hartley ^ R. & R. C.
C. 139.
If a servant secretes money which
his master has marked and sent by
a friend to make a purchase at his
shop, with a view to try the honesty
of his servant, it is a felonious
breach of trust, and an embezzling,
and not a larceny at common law.
Rex V. JSeadge^ 2 Leach, C. C.
1083; R. <fc R. C. C. 160: S. R,
JRex V. Whittingham, 2 Leach, C.
C. 912.
A man was sufficiently a servant
within 39 Geo. 3, c. 85, although
he was only occasionally employed
when he has nothing else to do.
JRexY. jSpencer, R. & R. C. C. 299 :
/S. P., lieg, V. Tongue, Bell, C. C.
289 ; 30 L. J., M. C. 49.
And it is sufficient, if he was em-
ployed to receive the money he
embezzled, although receiving mon-
ey may not be in his usual employ-
ment, and although it was the only
instance in which he was so em-
ployed, lb.
If a servant, immediately on re-
ceiving a sum for his master, enters
a smaller sum in his master's books,
and ultimately accounts to his mas-
ter for the smaller sum, he may be
considered as embezzling the defer-
ence at the time he makes the en-
try ; and it will make no difference
though he received other sums for
his master on the same day, and in
paying those and the smaller sum
to his master together he might
give his master every piece of money
or note he received at the time he
made the false entry. JRex v. HaU,
R. & R. C. C. 463 ; 2 Stark. 67.
Upon an indictment for embez-
zling 6«. it was proved that the
prisoner was a drayman in the em-
ployment of the prosecutors, who
were brewers, and tliat his duty
was to sell porter at a certain fixed
price only, viz., 9«. Qd, per dozen.
He sold some at 6^., but did not re-
ceive tlie money for some time. In
the interval the customer had in-
formed the prosecutors of the trans-
action, and they told him to pay
the money when the prisoner came
for it. The prisoner accordingly
received it, and did not account for
it : — ^Held, that the evidence was
sufficient to support the indictment
Heg. V. Astm, 2 Cox, C. C. 234-
Patteson.
• A. was employed to lead a stal-
lion, and he was to charge 30«. a
mare, and not take less Sian 20$,
He received the sum of 6^. for the
covering of a mare : — ^Held, no em-
bezzlement, as the sum w^as not re-
ceived by virtue of his emplovment
Bex V. JSnowleg, 4 C. ifc R*390-
Littledale and Parke.
A person employed by A. to sell
goods for him at certain wages may
be convicted of embezzlement as the
servant of A., though at the same
time employed by other persons
and for other purposes. Beg. v.
Batty, 2 M. C. C. 257.
A servant may be found guilty of
embezzlement, though he is not a
general servant, and is employed to
receive in a single instance only.
Bex V. Hughes, 1 M. C. C. 370.
Who are Clerks or Servants,]-^
One who was employed at a yearly
salary under the appellation of ac-
countant and treasurer to the over-
seers of a township, whose duty it
was to receive all monies receivable
or payable by them, was a clerk
and servant within '39 Greo. 3, c. 85.
Bex V. Squire, 2 Stark, 349 ; R *
R. C. C. 349.
Embezzlement by one who is
neither clerk nor servant, nor in
any respect under the control of the
person by whom he is in a single in-
stance only requested to receive
THE OFFENCE.
125
monicss was not panisbable under
7 A 8 Geo. 4, c. 29, s. 49, as he did
not come within the description of
clerk, or servant, or a person em-
ployed for the purpose of, or in the
capacity of a clerk or a servant.
Bex V. NetOei&n, 1 M. C. C. 259.
A person employed to collect the
sacrament money from the commu-
nicants is not the servant of the min-
ister, churchwardens or poor, so as to
be within 7 & 8 Geo. 4, c. 29, s. 47,
if he embezzles the money. JRex v.
BuHm, 1 M. C. C. 237.
The prisoner had worked for the
prosecutor, sometimes as a regular
labourer and sometimes as a roimds-
man ; bat at the time in question,
he uot being at all in the prosecu-
tor's service, was sent by the prose-
cutor to get a cheque cashed at a
banker's, for doing which he was to
be paid sixpence. He got the cash,
and made off: — Held, no embezzle-
ment, as the prisoner was not a ser-
Tant of the prosecutor within 7 & 8
Geo. 4, c 29, s. 47. Eex v. Free-
man, 5 C. & P. 534— Parke:
A person hired by a market gar-
dener to do a day's work, and who
is requested by his employer to take
some vegetables to market and sell
them, and bring back the produce,
is a servant to his employer in re-
spect of such employment, within 7
& 8 Geo. 4, c. 29, s. 47. Reg. v.
mmaU, 5 Cox, C. C. 326— Erie.
Being employed as above men-
tioned, he sold four pots of po-
tatoes, and received the money.
He sold four other pots, but did
not receive the money. On his
return to his master, he stated cor-
rectly the ^rice he sold the potatoes
fen*, but said that he would settle
with hipi on a subsequent day, as
he had not received the money, and
did not offer the sum received, or
ay he had been paid for a part, and
subsequently made the same excuse,
and never paid any part of the mon-
ey:—Held, that this was not em-
bezzlement, unless he, when he said
he had not received the money,
meant that he had not received any
part of it. Ih,
A. was a cashier and collector to
commission agents. He was paid
partly by salary, and partly by per-
centage on the profits, but was not
to contribute to the losses, and had
no control over the management of
the business : — Held, that he was a
servant within the 7 & 8 Geo. 4, c.
29, s. 47, not a partner. Reg, v.
M'DoncM, L. & C. 85 ; 9 Cox, C.
C. 10 ; 31 L. J., M. C. 67 ; 7 Jur.,
N.S. 1127; 10W.R.21; 5 L.T.,
N.S. 330.
B., being in difficulties, assimed
all his book debts, estate and enects
to trustees for the benefit or credit-
ors. He was employed by the
trustees at a salary to manaee the
business and to collect the debts for
them. He received the amount of
two of the debts, and did not ac-
count for it : — Held, first, that he
was not a clerk or servant within
the meaning of the act. Reg, v.
Barnes, 8 Cox, C. C. 129— Byles.
Held, secondly, that, inasmuch as
the debts, being choses in action,
could not be legally assigned, he
had received only money which
was in law, though not in equity,
his own ; and, therefore, that he
could not be guilty of embezzling
it. Ih.
A bailiff of a county court who
has fraudulently appropriated the
proceeds of levies made under the
process of the county court, cannot
for this misconduct be convicted as
a servant of the high bailiff with
having embezzled the monies of the
high bailiff his master. Reg,y, Glo-
ver, L. & C. 466 ; 9 Cox, C. C. 500 ;
10 Jur., N. S. 710 ; 33 L. J., M. C.
169 ; 12 W. R. 885 ; 10 L. T., K S.
582.
A person who is employed to get
orders for goods, and to receive
payment for them, but who is at
liberty to get the ordere and receive
the money where and when he
thinks proper, being paid by a com-
mission on the goods sold, is not
126
EMBEZZLEVIENT BY CLERKS, ETC.
a clerk or servant within 24 & 25
Vict. c. 96, 6. 68. Heg, v. Bowers
or Bower, 1 L. R. C. C. 41 ; 12 Jur.,
N. S. 550 ; 35 L. J., M. C. 206 ; 14
W. R. 808 ; 14 L. T., K S. 671.
The prosecutor was agent to a rail-
way company for delivering goods.
He employed his own servants, of
whom the prisoner was one, his own
drays and horses, arid was answer-
able to the company for the money
received by his servants for the car-
riage of goods. It was the prison-
er's duty to go out with a dray, to
take with him goods, and a deliv-
ery-book handed to him by a clerk
of the company, to deliver tibe goods
and receive the amount of carriage,
and to account for monies received
to the clerk of the company. The
prisoner embezzled certain sums
which he had received as due to
the company, and for which he had
given receipts in the company's
name : — Held, that, although the
money was received in the name of
the company, it was received on the
account of the prosecutor, his mas-
ter, and that a conviction for em-
bezzlement was right. Beg, v.
Thorpe, Dears. & B. C. C. 562 ; 4
Jur., N. S. 466 ; 27 L. J., M. C.
264 ; 8 Cox, C. C. 29.
The prisoner kept a refreshment
house at B., and whilst doing so
was engaged by the prosecutors,
manure manufacturers, to get or-
ders, which they supplied from
their stores. He was to collect the
money and send it at once to them,
and also to furnish weekly accounts.
He was paid by commission, and
it did not appear that he had under-
taken to give any definite time or
labour to the business, but he was
to act in a particular district, and
was called agent for the B. district.
He was to go through the country,
see the farmers and get orders, and
during the season was to be con-
tinuafly among the farmers. Sub-
sequently the prosecutors rented
stores at B., which were placed un-
der the prisoner's control, and from
them he supplied orders he obtained.
The first mode, however, or the
mixed mode, mi^ht have been re*
sorted to, accordmg to the convra-
ience of the prosecutors. After
some time a proposal was made to
a guarantie society to inWre tiie
prosecutors in respect to their con-
nexion with the prisoner. This pro^
posal was signed by the prisoner.
It was a prmted form, issued by
the society, and contained a notice
that some salary must be payable,
or the society would not insure. It
stated that tne prisoner's salary wi^
1/. a year besides commission, esti-
mated at 65/. a year. At this time
the prosecutors had agreed to give
the salary of 1/. a year. The prisoner
was allowed to get in arrear, and
was treated by the prosecutors as a
debtor in respect of the arrears. Hav^
ing, however, received money from
certain customers, he firaudulently
returned their names as not having
paid, and for this he was tried and
convicted of embezzlement : — Held,
that the conviction could not be
sustained, as it was not establisbed
by the evidence that the prisoner
was the servant of the prosecators.
Beg. V. Wcd&er, Dears. & B. C. C.
600 ; 27 L. J., M. C. 207 ; 8 Cox,a
C. 1.
A. was employed at a railway
station belonging to four different
companies, and which wa^ main-
tained out of a joint fund. Tie
servants at this station were ap-
pointed and paid, and might be dis-
missed, by a committee of directors
of the several companies. A.'8 du-
ty was to deliver parcels which ar
nved at the station by the trains of
the different companies, and to pay
over the money received for thm
to the chief clerk of the parcels of-
fice. The chief clerk then paid over
such money to the cashier of the com-
mittee, who kept a separate account
for each company, and paid the mor
ey over directly to the company to
which it belonged, or its bankers.
A. having embezzled money reoeiv-
THE OFFENCE.
127
ed by him in the course of his duty,
he wascbai^o^ in different counts of
an indictment as being the servant
of the particular company whose
money he had embezzled, of the
fimr companies, of the committee,
and of tlie station master : — ^Held,
that, at all events, he was properly
chaiged as being the servant of the
four companies. Meg, v. BayUy^ 2
Jur., N. S. 1171 ; 26 L. J., M. C. 4 ;
7 Cox, C. C. 179 ; Dears. & B. C. C.
121.
B., in an answer to an application,
wa? informed by letter from the
prosecntors, " We are not disposed
to appoint any agent at N., but for
all business you do for us we shall
be happy to pay you a conmiission."
He afterwards obtained some orders,
and misappropriated some monies
received by him. The jury found
that it was his duty to account to
the prosecutors for any money he
might receive for them immediately
on receipt of it : — ^Held, that B. was
not a clerk or a servant, and could
not be convicted of embezzlement.
%. v. May, L. <fc C. 13 ; 8 Cox, C.
C. 421 ; 7 Jur., N. S. 147^ 30 L. J.,
M. C. 81 ; 3 L. T., N. S. 680.
A. was indicted for embezzlement.
He was engaged by the prosecutor
as a commercial traveller, to be
eby commission, and he was at
-ty to obtain orders for other
pemms :— Held, that there was ev-
idence of his being a servant to the
prosecutor. Reg. v. Tile, L. & C.
29 ; 8 Cox, C. C. 458 ; 7 Jur., N. S.
556; 30 L. J., M. C. 142 ; 9 W. R.
554;4L.T., N. S. 259.
A butty collier, who received a
cttlain sum for every ton of coal he
raised, was also allowed to sell coal
for his employer, the owner of the
colliery.' It was his duty to pay
over the gross money received on
wch sales, and he was subsequently
allowed a poundage thereon. Hav-
ing converted money received for
coal to his own use, he neglected
to account for it:— Held, that al-
^oi^h the sale of the coal was not
compulsory, he was servant to the
owner of the coUiery, so as to sup-
port an indictment for embezzle-
ment. Reg, V. Thomas^ 6- Cox, C.
C. 403 — Crompton.
Indictment cnarged a person, who
was a solicitor, with embezzlement.
It appeared from his appointment
as entered in the minute book of the
company, that he was a land agent
to tne company, and that in the
course of his duties he collected the
rents of houses, refreshment-stalls,
book-stalls, &c., and should have
paid the sums over to the company,
and that he managed the parochial
assessments, as to the justness of
claim. His salary was 300/. a year,
and an extra sum was allowed for
travelling expenses : — Held, that he
was a clerk or a servant. Reg, v.
Gibson, 8 Cox, C. C. 436— Cham-
bers, C. S.
A., who had been a farm servant
of B., but who had ceased to be so,
was employed by B. to collect his
debts, it being B.'s intention to go
to America, and to take A with him
and set him up there in business for
himself. There was no agreement
for any remuneration to be paid by
B. to A. for collecting the debts : —
Held, that A. could not be convicted
of embezzling the sums received by
him on behalf of B. Reg.y. Hoare,
1 F. & F. 647— Wightman.
Receipt by Virtue of Employment,^
— Embezzlement of money by a
servant not authorized to receive it,
was not within 7 & 8 Geo. 4, c. 29,
s. 47. Rex V. TkorUy, 1 M. C. C.
843.
If a servant generally employed
by his master to receive suras of one
description, and at one place only,
is employed by him in a particular
instance to receive a sum of a dif-
ferent description and at a different
place, this latter sum was to be con-
sidered as received by him by virtue
of his employment, within 39 Gleo.
3, c. 85. Rex v. Smith, R. & R. C.
C. 516.
128
EMBEZZLEAIENT BY CLERKS, ETC.
A clerk, intrusted to receive mon-
ey at home from out-door collector^,
received it abroad from out-door
customers : — Held, that such a re-
ceipt of money might be considered,
by virtue of his employment, with-
in 39 Geo. 3, c. 85, although it was
beyond the limits to whicn he was
authorized to receive money for his
employers. Bex v. Beechet/, R. & R,
C. C. 319.
A. was convicted on an indict-
-ment charging him with embezzle-
ment. He was storekeeper and
clerk at a county gaol, and it was
no part of his duty (which was de-
fined by written instructions) to re-
ceive money, but he had from time
to time received monies in the ab-
sence of the governor of the gaol,
and to the knowledge of some of
the justices. It was submitted that
he had not received the money by
virtue of his employment, and that
that question ouglit to be left to the
jury ; but tlie recorder directed the
jury that if they believed that A.
received the money, he did receive
it by virtue of his employment : —
Held, that the question whether he
received the money by virtue of his
employment ought to have been
left to the jury, and that the con-
viction was wrong. Heg. v. ArmaUy
Dears. C. C. 575 ; 1 Jur., N. S.
1115,1177; 7Cox, C. C. 45.
The prisoner was indicted for em-
bezzling monies received by him by
virtue of his employment as clerk
to North and others, his masters.
It is for the jury to say if the rela-
tion of master and clerk existed be-
tween the prosecutor and prisoner.
Jieg, V. Ghater, 9 Cox, C. C. 1.
By Clerks of Joint Stock Corn,
pames,] — A. was indicted for em-
bezzlement whilst clerk to B. and
others. A. was secretary and cash-
ier to a company calling themselves
" The R., M. and H. Coal Company
(Limited) "; the number of mem-
bers exceeded twenty ; the name of
the company was over the door ; the
shares were transferrable without the
consent of the other shareholders;
and a minute-book, in which resolu-
tions were entered, was kept. No
certificate of incorporation was put
in evidence : — Held, that he was
rightly convicted as the servant of
B. and others, there being no evi-
dence which ought to have been
left to the jury that the company
was incorporated. Beg. v. Frmw-
land, L. ifc C. 276 ; 9 Cox, C. C.
273 9 Jur., K S. 888 ; 32 L. J., M.
C. 69 ; 11 W. R. 346 ; 7 L. T., N.
S. 799.
A clerk of a banking company,
established under 7 Greo. 4, c. 46,
may be convicted of embezzling the
money of the company, although
he is a shareholder or partner in
such company. Beg. v. Atkinson,
Car. & M. 525 ; 2 M. C. C. 278.
By Collectors of Bates.] — ^A. was
employed by the overseers of a par-
ish to collect poor-rates on their ac-
count. As their agent he demanded
the amount of a rate from the land-
lord of a house who usually paid his
tenant's poor-rates ; he entered the
amount in his book as uncollected
and as legally excused, and embez-
zled the siun : — Held, that although
the overseers might not have been
able to enforce the payment of tlie
sum so embezzled, he received it m
virtue of his employment, and on
account of his employers, and that
it was not necessary to lay the
money as the joint property of the
churchwardens and overseers. Beg,
V. Adeg, 4 New Sess. Cas, 360; 1
Den. C. C. 571 ; T. & M. 296; 3C.
& K. 339; 14 Jur. 556; 19 L. J.,
M. C. 149; 4 Cox, C. C. 208.
A collector of poorVrates, em-
ployed by the overseers, is properly
charged with embezzlement, as ser-
vant to the overseers, although
there are churchwardens for the
same parish, who took part in mak-
ing the rate. lb.
In such case it is sufficient to de-
scribe the money received by tJie
THE OFFENCE,
129
collector for the rate as the proper-
ty of the overseers only, naming
them. Ih.
A collector of poor's-rates, as a
senrant to the overseers, has author-
ity to receive the rates from the
landlord, if he will pay them to
him. Jh,
Under an oi-der of the Poor Law
Commissioners, in pursuance of 4 ifc
5 Wai. 4, c. 76, s. 46, the board of
guardians of a union appointed A.
to the office of collector of rates for
the S. district, which district formed
a part of tlie union. In the order of
tiie Poor Law Commissioners, the
duties of the collector, and the com-
nensation he was to receive, were
IuIIt pet forth, and upon the receipt
of tie order the guardians appointed
him verhally, which appointment
was afterwards submitted for ap-
proval to the Poor Law Commis-
sioners, and ratified by them. The
power of dismissal rested with the
Poor Law Commissioners alone.
Hie collector, on his appointment,
gave a bond for the proper perfor-
mance of his duties to the guardians,
and to them he was bound to give
in a statement of his accounts week-
ly. There were separate rates for
each parish or distnct of the union,
and the duty of the collector was to
collect the rates of the S. district,
and pay in the amount to a banker,
to the credit of the overseers of that
district, they alone having the right
of disposing of it. Out of this sum
the overseers paid the collector a
per centage for his services : — ^Held,
that an mdictment for embezzle-
ment was not sustainable, there
heing no such service to any one as
the 7 ifc 8 Geo. 4, c. 29, s. 47, re-
quired, the coUector being, under
tne circumstances, an independent
officer. JReg, v. Truman, 2 Cox, C.
C. 306.
Under an order of the Poor Law
Commissioners, founded on 4 <& 5
Will. 4, c. 76, 6. 46, the board of
guardians of a union appointed A.
an assistant overseer of a district
Fish. Dig.— 9.
in the union, of which the township
of F. formed a part, and his duty
was to assist the overseers of each
of the townships of the district. A.
was paid a salary by the guardians.
A. received sums for poor-rate from ,
ratepayers of the township of F.,
which he ought to have paid over
to the bankers of the overseers of
that township, instead of which he
embezzled them: — Held, that A.
was not indictable for embezzling
this money as the money of the
overseers, as he was not their serv-
ant; and that he was not indictable
for this embezzlement as the servant
of the guardians, because, if he was
their servant, it was not their mon-
ey. Beg, V. Tovmsendy 2 C. & K.
168. iDen. C. C. 167; 2 Cox, C.
C. 24.
The treasurer to the guardians of
the poor of Birmingham, appointed
under a local and personal act, is a
servant of the guardians, and as
such is indictable for embezzlement.
Beg, V. Welch, 2 C. & K. 296 ; 1
Den. C. C. 199 ; 2 Cox, C. C. 85.
The not accounting for a portion
of money received for the guardians
was an embezzlement, although no
precise time could be fixed at which
it was the prisoner's duty to pay
over the money alleged to be em-
bezzled. Ih,
G. was convicted upon an indict-
ment for embezzlement. It was his
duty, as the assistant overseer of a
township, to collect the rates ; and
the course was, upon receipt, to pay
them into a bank to the account of
the overseers' receipts for the sums
so paid. It was his duty also to
enter the rates when received in a
book, and at the audit he charged
himself by the entries in his book
and discharged himself by the re-
ceipts of the overseers. Having
misappropriated certain monies,
which he duly entered in the book
when received, he fraudulently ob-
tained from the overseers receipts
for the several sums stated in the
indictment, by falsely telling them
130
EMBEZZLEMENT BY CLERKS, ETC.
that he had paid the money into the
bank. These receipts he produced
to the auditor, and so deceived him
as to his having handed over the
monies : — Held, that he was rightly
convicted, and that the fact of his
entering the sums, when received,
in his book, did not alter the char-
acter of his offence. Mm, v. GueL
der, Bell, C. C. 284 ; 8 Cox, C. C.
372 ; 80 L. J., M. C. 34; 6 Jur., N.
S. 1214 ; 3 L. T., N. S. 887.
An assistant overseer of a parish,
elected by the parishioners in vestry,
under 59 Geo. 3, c. 12, s. 7, who fix
his duties and salary, is to be deemed
the servant of the inhabitants of the
parish, and to receive money col-
lected by him for the poor rate lev-
ied upon the parish as such servant,
and may be so described in an in-
dictment for embezzling such monies
so received. JReg. v. Carpenter^ 1
L. R, C. C. 29; 12 Jur., N. S. 380;
35 L. J., M. C. 169 ; 14 W. R. 773 ;
14 L. T., N. S. 572.
By Officers or Members of Bene-
fit Ohm and Friendly Societies J\ —
By 31 & 82 Vict. c. 116, s. 1, "if
"any person, being a member of
" any co-partnership, or being one of
" two or more beneficial owners of
" any money, ^oods or effects, bills,
" notes, securities or other property,
" shall steal or embezzle any such
"money, goods or effects, bills,
•" notes, securities or other property
"of or belonging to any such co-
•" partnership or to such joint bene-
•^'ficial owners, every such person
^' shall be liable to be dealt with,
" tried, convicted and punished for
"the same as if such person had not
^ been or was not a member of such
'" co-partnership or one of such ben-
•".eficial owners."
By Officers or Members of Savings
SarikSy Benefit Clttbsy and Friend-
ly Societies A^ — In an indictment
against the clerk of a savings bank
for embezzlement, he is properly de-
scribed as derk to the trustees,
though elected by the managen.
Bex V. Jenson^ 1 M, C- C. 434.
A member of and secretary Ur a
society, fraudulently withholding •
money received from a mranber to
be paid over to the trustees, may
be mdicted for embezzlement, and
may be stated to be the clerk and
servant of the trustees ; and the
money may be properly stated to be
their property, though the society is
not enrolled, and though the money
ought in the ordinary course to
have been received by a steward.
Bex V. ffaU, 1 M. C. C. 474.
Where, by the rules of certain
unenrolled friendly societies, the
members of one lodge were at lib-
erty to pay their contributions to
another lodge, if more convenient
for them so to do ;— Held, that in
an indictment against the secretary
of a lodge for embezzling monies
received from a member of another
lodge, the monies may be laid as
the property of, and the prisoner
may be alleged to be clerk and
servant to, the trustees of his lod^,
to whose account all monies receiv-
ed by him ought to be paid, al-
though the trustees, in their turn,
would, in this instance, have to ac-
count to the other lodge for the
E articular sum received on its be-
alf. The secretary of an unenrolled
friendly society, who is paid a yeariy
salary out of its funds, is properly
described in the indictment as clerK
and servant to the trustees, and it
would be incorrect to designate him
as employed in the capacity of clerk
and servant. The latter description
only applies where the prisoner is
employed on temporary occasions,
ana does not usually fill the situa-
tion of clerk or servant. Beg, v.
WooUeyy 4 Cox, C. C. 255— PW-
teson.
A member of two unenrolled ben-
efit clubs, paid as secretary, and in-
trusted with the fimds to deposit in
the bank in the joint names of him-
self and the treasurer, dishonestly
appropriating to himself the soma
THE OFFENCE.
131
intrusted to him, cannot be found
guilty of larceny as a servant, or of
embeEzlement, or of larceny as a
bailee. Reg. v. Marsh, 8 F. & F.
52a— Keating.
A. was secretary to a benefit
bnilding society. It was no part of
bis duty, as prescribed by the rules,
to receive money for the society;
but, according to the course of bus-
inees, the suoscriptions were fre-
quently received by him, and when
mortgages were redeemed the mon-
ey was paid to him as secretary,
but for and upon receipts signed by
the trust^s. Having embezzled
the redemption money upon a mort-
gage so paid to him, he was indict-
ed under 7 <fc 8 Geo. 4, c. 29, s. 47 :
—Held, that there was evidence for
the jury that he was employed by
the trustees as their servant to re-
ceive money on their behalf. Reg,
v. HastU, 9 Cox, C. C. 264 ; L. &
C.269; 9 Jut., K S. 235; 82 L. J.,
M. C. 63; 11 W. R. 293 ; 7 L. T.,
N. S. 695.
Two friendly societies appointed
a committee, of which the defend-
ant was a member^ to conduct an
excursion ; the committee employed
bim and several others to sell tick-
etsL It was his duty to pay over
the money so received, which was
to belong to the two societies, to a
pereon appointed by the committee.
Put be received no remuneration for
his services: — Held, that he was a
joint owner of the money, and not
a clerk or servant witlun 24 & 25
Vict c 96, 8. 68, liable to be in-
dicted for embezzlement. Reg, v.
-BrTO,L. A C. 346; 9 Cox, C. C.
398; 33 L. J., M. C. 59; 12 W. R.
107;9L.T.,N.S. 452.
The secretary of an unenroUed
fiiendly society, whose duty it is to
receive' the weekly contributions of
the members, to enter them in a
book, and hand over the amount to
the treasurer, who in his turn pays
it isto a bank in the names of the
trustees of the society, may be prop-
erly described as the servant of the
trustees in an indictment charging
him with embezzling sums so re-
ceived, and he cannot be described
as the servant of the treasurer.
Reg, V. WooUey, 4 Cox, C. C. 251—
Piatt.
A. who was convicted of embez-
zlement, was secretary of a money
club. His duties were co^ate to
that of receiving money, suthough
the receipt of money was not ex-
pressly named as one of them in
the rules, which were in writing.
He was directed by the club to sue
upon a joint promissory note, their
property, or get better security, and
the note was handed to him by the
treasurer, not a member of the club,
who desired that his name should
not be used in legal proceedings.
The note was payable to the treas-
urer's order, and A. endorsed the
treasurer's name on the note, and
employed an attorney, who issued a
wnt at the suit of A. In conse-
quence of the action money was
paid to him by one of the makers of
the note, the receipt of which he
denied, and fraudulently withheld
the money from the club, and ap-
propriated it: — Held, that he was
rightly convicted. Reg, v. TonguLe^
Bell, C. C. 289 ; 8 Cox, C. C. 386 ;
30 L. J., M. C. 49; 9 W. R. 59 ; 3
L. T., N. S. 415.
A member of and secretary to a
benefit society, deriving a percent-
age from the funds of Sie society,
received in the course of his duty
certain money from the mem-
bers of the society, which it was
his duty to pay mto an account
in the savings bank kept in the
names of certain other members
of the society. Instead of paying
the money mto the bank he ap-
propriated it : — Held, that he could
not be convicted of embezzling the
money upon an indictment charging
him to be the servant of " A. B.
and others," and laying the money
to be that of " A. B. and others,"
132
EMBEZZLEMENT BY CLERKS, ETC.
A. B. being an ordinary member of
the society. Beg, v. Taffs^ 4 Cox,
C. C. 169— Maule.
But where the secretary of a
friendly society, of which A. B. and
others were the trustees, was charg-
ed with the embezzlement of money
belonging to the society ; and in the
indictment the property was laid
as " of A. B. ana others," without
alleging that they were the trustees
of the society : — Held, that the in-
dictment might be amended by the
addition of the words " trustees of
&c." Beg. V. Marks, 10 Cox, C.
C. 367— Chambers, C. S.
A member of a friendly society
was employed to receive the weekly
payments made by the members.
He gave correct receipts to the
members, but omitted to enter in
the contribution and cash books a
large number of the sums so receiv-
ed. On being called upon for an
explanation, he admitted that he
had received the sums so omitted : —
Held, that he was guilty of embez-
zlement. Reg, V. Proud, L. &. C.
97 ; 9 Cox, C. C. 22 ; 31 L. J., M.
C. 71 ; 8 Jur., N. S. 142.
Upon the trial, these books were
tendered generally in evidence, and
received, although it was objected
that the evidence ought to be con-
lined to the entries forming the sub-
ject of the indictment : — Held, that
they were rightly admitted. Ih,
A secretary of a friendly society
under 18 & 19 Vict. c. 63, in which
no trustee had ever been appointed,
was convicted on an indictment for
embezzlement, prior to the coming
into operation of the above enact-
ment, and the indictment described
him as the servant of the treasurer,
and also as the servant of C. (a
member) and others: — ^Held, that
tlie conviction was wrong. JReg, v.
Diprose, 19 L. T., N. S. 292 ; 17
W. R. 180 ; 11 Cox, C. C. 185 ; S.
P., Reg, V. Elackhum, 11 Cox, C. C.
157— C. C. R.
A treasurer of a friendly society
(duly enrolled and the rules ot
which had been certified by the bar-
rister appointed in that behalf),
whose duty it was to receive the
monies paid into the society, and
hold them to the order of the secre-
tary, counter-signed by the chair-
man, or a trustee, and to account
whenever called upon, to which of-
fice no salary was attached, is not a
clerk or a servant liable to be in-
dicted for embezzlement under 24 ^
25 Vict. c. 96, s. 68. Reg. v. T^\
38 L. J., M. C. 58; 17 W. R. 334;
1 L. R., C. C. 177 ; 19 L. T., N. S.
657; 11 Cox, C. C. 241.
The trustees of a benefit building
society borrowed money for the pur-
poses of their society on their indi-
vidual responsibility (there h&s%
no rule of the society authorizing
them to borrow money). The mon-
ey on one occasion was received by
the secretary, and embezzled by
him : — Held, that he might be charg-
ed in an indictment for embezzle-
ment as the servant of W. and
others, W. being one of the trustees
and a member of the society. Reg,
V. Redford, 21 L. T., N. S. 508 ; 17
W. R. 262— C. C. R
When Society is illegally or irregu-
larly constittUed,] — Where a sodety,
in consequence of administering to
its members an unlawful oath, is an
imlawiul combination and confed-
eracy under 37 Geo. 3, c. 123 ; 39
Geo. 3, c. 79 ; 52 Geo. 3, c. 104 ; and
57 Geo. 3, c. 19 ; a person charged
with embezzlement, as clerk and serv-
ant to such society, cannot be con-
victed. Reg, V. ifunt, 8 C. & P.
642— Mrehouse, C. S.
It is embezzlement in the clerk
of a friendly society fraudulently to
withhold the rents of a house col-
lected in the course of his dutv as
clerk ; and he may be laid to be
the clerk or servant o^ the trustees
to whom the house was conveved,
if appointed either by tliem or the
society. It is no defence that the
THE OFFENCE.
133
boaness of the society has not been
conducted according to the statute.
Reg, 7. mUcr, 2 M. C. C. 249.
When Society or Partnership is
iSegalkf constituted.^ — An officer of
a friendly society, some of whose
rules were in restraint of trade, em-
bezzled its money : — Held, that rules
in restraint of trade are not criminal,
although they may be void as being
against public policy, and that a
society having such rules is entitled
to the protection of the criminal
law for Its funds, and, consequently,
that the officer might legally be
convicted of embezzlement. Jieg.
V. Stainer, 1 L. R., C. C. 230 ; 39
L. J., M. C. 54 ; 18 W. R. 439 ; 21
L T., N. S. 758. See 32 & 33 Vict.
c61.
By Persons in the Queen*s JServ-
ice or by the Po^/ce.]— By 24 & 25
Vict. c. 96, s. 70, " whosoever, be-
"ing employed in the public service
" of her Majesty, or being a consta-
"ble or other person employed in
** the police of any county, city, bo-
" rough, district or place whatsoev-
" er, and intrusted by virtue of such
" employment with the receipt, cus-
"tody, management or control of
"any chattel, money or valuable
" security, shall embezzle any chat-
"tel, money or valuable security
" which shall be intrusted to or re-
" ceived or taken into possession by
" him by virtue of his employment,
"or any part thereof, or in any
" manner fraudulently apply or dis-
"pose of the same or any part
" thereof to his own use or benefit,
"or for any purpose whatsoever
" except for the public service, shall
" be deemed to have feloniously stol-
"en the same from her Majesty,
" and being convicted thereof shall
"be liable, at the discretion of the
" court, to be kept in penal servi-
"tude for any term not exceeding
"fourteen years and not less than
'l^^e^ years (27 & 28 Vict. c. 47),
** or to be imprisoned for any term
" not exceeding two years, with or
" without hard labour;
" And every offender against this
" section may be dealt with, indict-
" ed, tried and punished either in
" the county or place in which he
" shall be apprehended or be in
" custody, or m which he shall have
" committed the offence ;
" And in every case of larceny,
" embezzlement or fraudulent appH-
" cation or disposition of any chat-
" tel, money or valuable security in
" this and the last preceding section
" mentioned, it shall be lawful in
" the warrant of commitment by the
"justice of the peace before whom
" the offender shall be charged, and
" in the indictment to be preferred
" against such offender, to lay the
" property of any such chattel, mon-
" ey or valuable security in her Ma-
" jesty." {Former proviMoiis^ 2 &
3 Will. 4, c. 4, ss. 1, 4, 5, and 22
& 23 Vict. c. 32, s. 25.)
It was proved that a post-office
letter-carrier was in the daily habit
of calling at the lodge of an infirm-
ary, and there receivmg letters, with
a pennv on each, to prepay the post-
age of them; and tnat he took
them, with the penny, to the post-
office; and that, during his illness,
a person who had performed his
duties did the like. There was no
evidence of any appointment: —
Held, in an indictment under 2 <&
3 Will. 4, c. 4, s. 1, for embezzling
some of the pence thus received,
that this was evidence to go to the
jury, that the pence were received
by the prisoner by virtue of his em-
ployment as a letter-carrier. Reg,
V. Totmseiid, Car. & M. 178— Col-
eridge.
An indictment for embezzlement
of money received by a clerk, whilst
such, was good under 2 & 3 Will.
4, c. 4, without alleging the embez-
zling to have taken place whilst he
was clerk. Hex v. LoveU, 2 M. &
Rob. 236— Coleridge.
Upon the trial of an indictment
under 2 & 3 WiU. 4, c. 4 s. 1,
184
EMBEZZLEMENT BY CLERKS, ETC.
charging that A., being intrusted
by virtue of his employment in the
public service with the receipt and
custody of certain money, the prop-
erty of the crown, did fraudulently
and feloniously apply the same to
his own use, it was proved that A.,
being a receiver of taxes, had kept
in his own hands a balance very
much exceeding that which he was
allowed to retain ; and upon being
asked whether he was prepared to
pay over that balance or any part
of it, he replied that he was not.
He was then reminded that there
was a balance of excise duties alone
of about 300^. standing against him
from the previous Monday, which
was a receipt day at a particular
Slace in his district. He then pro-
uced 255/., and said that was all
he had in the world ; and that the
rest he had spent in an unfortunate
speculation ; — ^Held, that there was
evidence of the receipt of a partic-
ular sum of 300/. by virtue of his
employment, and of a misapplica-
tion by him of a part of it;* and
that, therefore, the conviction was
right, even if evidence of a general
deficiency on a balance of accounts
would not alone have supported
such an indictment. Reg. v. Moah,
7 Cox, C. C. 60; 2 Jur., N. S. 213;
25 L. J., M. C. 66; Dears. C. C.
626.
On an indictment for embezzle-
ment against a letter-carrier, as a
person employed in the public serv-
ice of her Majesty, it is not neces-
sary to prove his appointment as a
letter-carrier, but evidence of his
having acted as such is sufficient.
Rex V. BorreU, 6 C. ifc P. 124—
Littledale.
If the wife of a party to whom a
letter is directed pays the postage
of the letter, she is entitled to de-
mand an overcharge made for it;
and a refusal on the part of the let-
ter-carrier to account for it to her
is evidence of an embezzlement by
him. Ih,
u
u
a
By Officers of the Bank of Eng-
land or Irelmui.'] — ^By 24 <& 25 Vict,
c. 96, s. 73, "whosoever, being an
" officer or servant of the governor
" and company of the Bank of £n^-
" land or of the Bank of Irelf^
" and being intrusted with any bond,
deed, note, bill, dividend warrant,
or warrant for payment of any
annuity or interest, or money, or
" with any security, money or other
" effects of or belonging to the said
^' governor and company, or having
"any bond, deed, note, bill, divi-
" dend warrant, or warrant for pay-
" ment of any annuity or intere^
" or money, or any security, money
" or other effects of any other per-
" son, body politic or corporate,
" lodged or deposited with the said
"governor and company, or with
" him as an officer or servant of the
" said governor and company, diall
" secrete, embezzle, or run away
" with any such bond, deed, note,
" bill, dividend or other warrant,
" security, money, or other effects
" as aforesaid, or any part thereof,
" shall be guilty of felony, and be-
" ing convicted thereof shall be lia-
" ble, at the discretion of the conit,
" to be kept in penal servitude for
" life or for anv term not less than
" five years (27 & 28 Vict. c. 47),
" or to be imprisoned for any term
" not exceeding two years, with or
" without hard labour, and with or
" without solitary confinement.^'
2. Amowitifig to Larceny or Un^
hezdeinent.
By 24 & 25 Vict. c. 96, s. 72,
" if upon the trial of any perBon
" indicted for . embezzlement, or
" fraudulent application or dispoa-
" tion as aforesaid, it shall be proved
" that he tooTc the property in ques-
" tion in any such manner as to
" amount in law to larceny, he shall
" not by reason thereof be entitled
" to be acquitted, but the jury shall
" be at liberty to return as their
" verdict that such person is not
AMOUNTING TO LARCENY, ETC.
185
" guilty of embezzlement, or fraud-
^^ulent application or disposition,
" but is guilty of simple larceny, or
" of larceny as a clerk, servant, or
" person employed for the purpose
"or in the capacity of a clerK or
" ser\^ant, or as a person employed
" in the public service, or in the po-
"lice, as the case may be; and
"thereupon such person shall be
" liable to be pimished in the same
" mauDer as if he had been con-
"victed upon an indictment for
"such larceny;
"And if upon the trial of any
" person indicted for larceny it shall
" be proved that he took the prop-
" erty in question in any such man-
"ner as to amount in law to em-
" bezdement, or fraudulent applica-
" tion or disposition as aforesaid, he
"shall not by reason thereof be
"entitled to be acquitted, but the
"jury shall be at liberty to return
" as their verdict that such person
"is not guilty of larceny, but is
"guilty rf embezzlement, or fraud-
" ulent application or disposition, as
"the case may be, and" thereupon
" such person shall be liable to be
"punished in the same manner as
"if he had been convicted upon an
" indictment for such embezzlement,
"fraudulent application or disposi-
"tion; and no person so tried for
" embezzlement, fraudulent applica-
"tion or disposition, or larceny as
"aforesaid, shall be liable to be
" afterwards prosecuted for larceny,
" fraudulent application or disposi-
"tion, or embezzlement, upon the
" same facts,'* (JFhjtner provision,
U & 15 Vict. c. 100, 8. 13.)
A. was indicted for larceny as a
servant At the trial there was ev-
idence of embezzlement, but none
of larceny: — Held, that although
by 14 & 15 Yict. c. 100, s. 13, a
person indicted for larceny might
be convicted of embezzlement, yet
he could not be convicted of Lar-
ceny if there was only evidence of
embezzlement. Heg, v. Gorbutt,
Dears. & B. C. C. 166; 3 Jur., N.
S. 371 ; 26 L. J., M. C. 47 ; 7 Cox,
C. C. 221.
On a charge for receiving goods
knowing them to have been feloni-
ously stolen and carried away, the
prisoner may be convicted if the
goods have been embezzled, and he
received them knowing them to
have been embezzled, for by 7 & 8
Geo. 4, c. 29, s. 47, embezzlement
is deemed stealing. JReg, v. Framp-
ton, Deai-s. & B. C. C. 585 ; 4 Jur.,
N. S. 566; 27 L. J., M. C. 229.
The prisoner, who was clerk to
the prosecutor, was indicted for em-
bezzling certain monies belonging
to his master. The evidence shew-
ed that the prisoner had received at
different times several sums of mon-
ey from the prosecutor, a dealer in
skins, for the purpose of purchasing
skins. The prisoner obtained the
skins on credit, and applied the
money to his o^ti use, but debited
prosecutor in his day-book with sev-
eral sums of money as having been
paid for the skins. The jury found
the .prisoner not guilty of embezzle-
ment, but guilty of larceny : — Held,
that the com-iction was wrong.
Heg, V. Goodenough, Dears. C. C.
210; 6 Cox, C. C. 206.
A. was indicted for embezzlement
as being a clerk and a servant of
B., C. and D. A first count laid
the offence, to wit, on the 18th of
August, 1861. A second count laid
a second act of embezzlement with-
in six months, to wit, on the 1st of
September. A third count laid a
third act of embezzlement also
within six months, under the same
videlicet. A. was a member of,
and secretary to, a properly certi-
fied friendly society, of which B.,
C. and D. were the trustees, and
had, from time to time, received,
though not in his capacity of secre-
tary, funds belonging to the society,
some part of which he had appro-
priated : — Held, that A. was prop-
erly convicted of embezzlement as
the clerk and servant of B., C. and
D., and that the evidence of the
136
EMBEZZLEMENT BY CLERKS, ETC.
acts of embezzlement needed not to
be confined to the days stated under
the videlicets. Reg, v. Proud ^ 10
W. R. 62; 5 L. T., N. S. 331 ; L. &
C. 97 ; 31 L. J., M. C. 71 ; 9 Cox,
C. C. 22.
3. Indictment,
JFbrm.]— By 24 & 25 Vict. c. 96,
s. 71, "for preventing difficulties in
" the prosecution of offenders in any
" case of embezzlement, fmudulent
" application or disposition, it shall
" be lawful to charge in the indict-
" ment and proceed against the of-
" fender for any number of distinct
" acts of embezzlement, or of fraud-
" ulent application or disposition,
" not exceeding three, which may
" have been committed by him
" against her Majesty or against
" the same master or employer,
" within the space of six months
" from the first to the last of such
" acts;
"And in every such indictment
" where the offence shall relate to
" any money or any valuable secu-
" rity it shall be sufficient to allege
" the embezzlement, or fraudulent
" application or disposition, to be of
" money, without specifying any
" particular coin or valuable secu-
"rity;
" And such allegation, so far as
"regards the description of the
" property, shall be sustained if the
" offender shall be proved to have
" embezzled or fraudulently applied
" or disposed of any amount, al-
" though the particular species of
" coin or valuable security of which
" such amount was composed shall
" not be proved ;
" Or if he shall be proved to have
" embezzled or fraudulently applied
" or disposed of any piece of com or
" any valuable security, or any por-
" tion of the value thereof, although
" such piece of coin or valuable se-
" curity may have been delivered to
" him in order that some part of the
" value thereof should be returned
" to the party delivering the same,
" or to some other person, and such
" part shall have been returaed ac-
" cordingly. (JPbrwer provision, 7
& 8 Geo. 4, c. 29, s. 48.)
An indictment, which chaises in
one count that within six calendar
months the prisoner received three
sums, laying a day to the receipt of
each, and that, " on the several days
aforesaid," he embezzled these sums,
is bad, because it does not shew tiuit
the sums were embezzled within ax
months of each other; and this ob-
jection ought to be taken on demur-
rer. Heff, V. Purchase^ Car. & M.
617— Patteson.
An indictment which contains three
charges of embezzlement should not
only aver that the monies which are
the CTibject of the charges were re-
ceived within six months, but should
also aver that they were embezzled
within six months. Meg, v. Nbake^
2 C. & K. 620— Cresswell.
A count for embezzling bank
notes upon the statute may be
joined with a coimt for larceny.
Eex V. Johnson, 3 M. & S. 539.
Where, in an indictment for em-
bezzlement, there is a second count
charging another act of embezzle-
ment within six months from the
first, under 7 <fc 8 Geo. 4, c. 29, &
48, but alleging the money to be
the property of a different person
from that mentioned in tlie first
count, the words connecting the
second count with the first may be
rejected as surplusage, and the sec-
ond count dealt with as an inde-
pendent count. Heg, v. WooUeyi
4 Cox, C. C. 251— Piatt.
A prisoner was indicted in the
first count for embezzlement, and
in the second for larceny, as a
bailee. After plea pleaded and the
jury was charged, and in the course
of the trial, it was objected for the
prisoner that the indictment was
bad for misjoinder of counts. The
court overruled the objection, and
directed the prosecutor to elect up-
on which count he would proceea,
and the prosecutor having elected
PARTICULARS OF CHARGES.
137
to proceed npon the second count,
the prisoner was found guilty there-
on:—Held, that the conviction was
right. Reg. v. Hblman^ 9 Cox, C.
G. 201 ; L. & C. 177 ; 33 L. J., M.
C. 153 ; 12 W. R. 764 ; 10 L. T.,
K. S. 464.
Where an indictment for embez-
zlement could not be supported be-
cause the offence was not an embez-
zlement but a larceny, and the lar-
ceny count stated the larceny to
hare heen committed ^' in manner
and form aforesaid": — Held, that
the prisoner could not be convicted.
-Resc T. Murray^ 5 C. A P. 145 ; 1
M. C. C. 276.
In an indictment for embezzling
money, it is not necessary to state
from whom the money so embez-
zled was received. JRex v. JBeacall,
1 C. & P. 313, 454— Park.
The halves of country bank-
notes, sent in a letter, are goods
and chattels; and a person who
embezzles tliem is indictable for
finch embezzlement. JRex v. Mead,
4 C. <fc P. 535 — Bosanquet.
If an indictment charges the pris-
oner with having embezzled " cer-
tam bills, commonly called Ex-
chequer bills," and it appears that
the person who signed them on the
part of government was not legally
authorized so to do, the indictment
is bad ; for they are not the things
which they are averred to be. JRex
V. Mett; 2 Leach, C. C. 954, 958 ;
1N.R.1; R. &R. C. C. 67.
An indictment for embezzling
need not have specified the exact
sum embezzled. JRex v. Carson,
R <k R. C. C. 303 ; S. P., JRex v.
Grove, 1 M. C. C. 447.
IndictmentJ] — ^An indictment for
embezzhng money under 24 & 25
Vict. c. 96, 8. 68, is not proved by
Aewing merely that the prisoner
embezzled a cheque, without evi-
dence that he has converted the
ch^ae mto money. Heg, v. JKeena,
17 L T., N. S. 515 ; 16 W. R. 375 ;
1 L. R., C. C. 113 ; 37 L. J., M. C.
43 ; 11 Cox, C. C. 123.
Venue."] — ^An indictment for em-
bezzlement may be either laid in
the county in which the money was
received, or in the county where
the prisoner disowned having re-
ceived the money. Rex v. H3>8on,
R. & R. C. C. 56 ; 1 East, P. C.
Add. xxiv ; 2 Leach, C. C. 975.
If a servant receives money for
bis master in the county of A., and,
being called upon to account for it
in the county of B., there denies
the receipt of it, he may be indict-
ed for the embezzlement in the lat-
ter county. Rex v. Taylor, 3 B.
& P. 596.
A prisoner, who was employed
as a travelling salesman by a trades-
man living at Nottingham, received
two sums of money for his master
in the county of Derbyshire, and,
having appropriated them to his
own use, neglected to return and
account to his master for the mon-
ey, as it was his duty to do ; and
having been, about two months
after tne receipt of the money, met
by his master in Nottingham, and
on being asked by him respecting
the two sums of money, said he
was sorrv for what he had done —
that he had spent the money : —
Held, that there was evidence to
go to the jury of an embezzlement
m Nottingham, and that the pris-
oner was rightly tried there. Reg.
V. Murdock, 2 Den. C. C. 298 ; 16
Jur. 19 ; 21 L. J., M. C. 22 ; 5
Cox, C. C. 360.
4. Particulars of Charges.
If a prisoner does not know the
specific acts of embezzlement in-
tended to be charged against him,
he should apply to the prosecutor
for a particular, of the charges;
and if it is refused, the judge will,
on motion supported by proper affi-
davits, grant an order for such par-
ticular to be given, and postpone
188
EMBEZZLEMENT BY CLERKS, ETC.
the trial, if necessary. Such par-
ticular ought at least to state the
grsons from whom money is al-
jed to have been received. JRex
V. Hodgson, 3 C. & P. 422 —
Vaughan; S. P., Hex v. Booty-
man, 5 C. & P. 300— Littledale.
But the court of Queen's Bench
has no jurisdiction to make an
order upon a prosecutor to deliver
the particulars. * The application
should be made to the juage at the
assizes. Heg, v. Hadam, 1 Jur.,
N. S. 1139— B. C— Crompton.
5. Evidence,
It was the duty of a banking
clerk to receive money, and to pay
it either into a box or a till, of eacn
of which he kept the key, and to
make entries of his receipts in a
book ; the balance of each evening
being the first item with which he
debited himself in the book the
next morning. On the morning of
the day in question, he had Uius
debited himself with 1,762/.; and
on being called on in the evening
by his employer to produce his
money, he threw himself on his em-
ployer's mercy, and said he was
about 900/. short. Upon an indict-
ment for embezzling: — Held, that
this was evidence upon which the
jury might convict, although no
evidence was given of the persons
from whom the money was re-
ceived, or of the coin of which it
consisted. Rex v. Orove, 7 C. <fc
P. 635 ; 1 M. C. C. 447.
It is not enough to prove that a
clerk has received a sum of money
and not entered it in his book, un-
less there is also evidence that he
has denied the receipt of it, or the
like. Sex v. Jones, 7 C, & P. 833
— BoUand.
A., a servant of B., was sent to
receive rent due to B.; A. received
it, and immediately went off with
it to Ireland : — ^Held, that A.'s thus
leaving her place and going off to
Ireland, was evidence from which
the jury might infer that A. in-
tended to embezzle the money.
Hex V. WiUiams, 7 C. & P. 338-
Coleridge.
If a person receives money as
steward of another, proof of that cir-
cumstance is sufficient evidence of
his being a steward, to support an
indictment for embezzling sach
money. JRex v. Heacall, 1 C. &
P. 312 ; and JRex v. WeUings, 1 C
& P. 454, 457— Park.
In- a portmanteau not proved to
belong to a prisoner on trial was
found a paper folded like a letter,
and containing in the inside what
purported to be an inventory of
goods pawned at difterent timesL
The inventory was not in liis hand-
writing ; but on the outside of the
paper nis name, and the word pii-
vate, both in his handwriting, were
indorsed : — ^Held, that the contents
of the paper were not admissible
against him. JReg. v. Hare, 3 Cox,
C. C. 247.
A., a brewer, sent his drayman
B. out with porter, with authority
to sell it at fixed prices only. B.
sold some of it to C, at an under
price, and did not receive the mon-
ey at the time ; A. heard of this,
and, unknown to B., told C. to pay
B. ^e amount, which C. did, and
B., when asked for it by A., denied
the receipt of the money: — ^Held,
to be sumcient evidence of embex-
zlement Beg, v. AMofh, 2 C. dr
K 413— Patteson.
A person indicted as servant to
guardians of the poor of a parish :
— Held, that the admission oy him
contained in the condition of Ids
bond for the performance of his
duties as treasurer, coupled with an
act of parliament specifying those
duties, was sufficient evidence of
the nature of his appointment, viz.,
that he was to receive money for
the guardians, and account to them
for his receipts. Heg. v. Welch, 1
Den. C. C. 199 ; 2 C. & K. 296.
Where there has been a written
agreement between master and ser«
vant, in which the nature of the
EVIDENCK
139
seniee is defined, on an indictment
for enbezzlement against the latter,
parol evidence of the service is in-
admissible, unless notice has been
dven to produce the agreement.
JUg V. Clapton, 3 Cox, C. C. 126—
PattesoD.
0. was indicted for embezzle-
ment, and for the purpose of prov-
ing his identity as the person re-
oeu-ing certain things from S. &
Co. for the prosecutor, an entry in
a book of S. Ss Co. was read in evi-
dence. The account was kept in
four columns, in the first of which
were altered the dates ; in the sec-
ond the name of the person on
whose behalf the money was re-
cored; in the third the signature
of the person receiving ; and in the
fcurth the amount of the particular
payment made by S. & Co.: — ^Held,
that the entry, as explained by the
evidence, amounted to a receipt;
and that even for the purpose of
proving identity, the wnole entry
could not be read without a stamp,
and that therefore the conviction
was wrong. Beg. v. Overton, Dears.
C. C. 308; 6 Cox, C. C. 277; 18
Jur. 134 ; 23 L. J., M. C. 29.
Bat by 17 & 18 Vict. c. 83, s. 27,
^' every instrument liable to stamp
'^duty shall be admitted in evi-
" dence in any criminal proceeding,
^although it may not have the
" stamp required by law impressed
" thereon, or afiixed thereto."
An indictment charged the pris-
oner with having embezzled three
8wn8 of twenty-one pounds, the
monies of his employers, he being
a clerk or servant. Evidence was
given of the embezzlement of these
sums, and it was then proposed to
give evidence of other sums not
charged in the indictment, but
whicR had also been embezzled, to
Aew that if it should be contended
the sums charged in the indictment
were subjects of a mistake in keep-
ing the accounts, there being many
<>uier siuns unaccounted for, admit-
tli^ evidence of such sums would
assist the jury in determining what
value was to be attached to the
suggestion: — ^Held, that such evi-
dence was admissible. Heg. v.
Richardson, 8 Cox, C. C. 448 ; 2
F. & F. 843— Williams.
A clerk to a savings bank was
convicted on an indictment charg-
ing him with embezzlement, the
property being laid in A. In order
to prove that A. was a trustee of
the bank, he was called, and stated
that since the comnodssion of the
offence he had been acting as a
trustee, but that before that date
he had attended only one meeting,
having on that occasion been re-
quested to do so lest there should
be a deficiency of trustees ; but he
was also a manager of the bank,
and it did not appear that any act
was done by him at that meeting
which he might not have done as a
manager : — ^Held, that this was in-
sufficient evidence of acting to sup-
port the inference of the legal ap-
pointment of A. as a trustee, and
that the conviction was wrong.
Reg. V. Essex, Dears. & B. C. C.
369 ; 4 Jur., N. S. 15 ; 7 Cox, C.
C. 384.
XIY. Embbzzl£M£N7 and Fbaubs
BY Agents, Bankebs, Tbustees
AND OrilEBS.
1. Agents and Banken, 139.
2. Trwteet, 142.
S. Directors, Members and Officers of
QanpanieSf 143.
4. Disclosure of Circumstances, 144.
5. Jurisdiction of Quarter Sessions,
144.
6. By Traders-^Soe Banxbuftot.
1. Agents and Rankers.
By Conversion of Monies or Se-
curUies.y--BY 24 & 25 Vict c. 96,
s. 75, " whosoever, having been in-
" trusted, either solely or jointly
'^ with any other person, as a bank-
" er, merchant, broker, attorney or
"other agent, with any money or
" security for the payment of mon-
" ey, with any direction in writing
140
EMBEZZLEMENT BY AGENTS, ETC.
" to apply, pay or deliver such
"money or security, or any part
" thereof respectively, or the pro-
" ceeds or any part of the proceeds
" of such secunty, for any purpose,
" or to any person specified in such
" direction, shall, in violation of
"good faith, and contrary to the
" terms of such direction, in any-
" wise convert to his own use or
" benefit, or the use or benefit of
" any person other than the person
" by whom he shall have been so
"intrusted, such money, security
"or proceeds, or any part thereof
"respectively." {Pormer provis-
ion, 7 & 8 Geo. 4, c. 29, s. 49.)
By SeUing, Negotiating or Pledg-
ing SeaurUiea,'^ — ^" And whosoever,
" having been mtrusted, either sole-
" ly or jointly with any other per-
" son, as a banker, merchant,
" broker, attorney or other agent,
"with any chattel or valuable se-
" curity, or any power of attorney
" for the sale or transfer of any
" share or interest in any public
" stock or fund, whether of the
" United Kingdom, or any part
" thereof, or of any foreign state,
" or in any stock or fund of any
".body corporate, company or so-
" ciety, for safe custody or for any
"special purpose, without any au-
" thority to sell, negotiate, transfer
"or pledge, shall, in violation of
"good faith, and contrary to the
" object or purpose for which such
" chattel, security or power of at-
" tomey shall have been intrusted
"to him, sell, negotiate, transfer,
" pledge or in any manner convert
" to his own use or benefit of any
" person other than the person by
"whom he shall have been so in-
" trusted, such chattel or security,
" or the proceeds of the same, or
" any part thereof, or the share or
"interest in the stock or fund to
" which such power of attorney
" shall relate, or any part thereof,
" shall be guilty of a misdemeanor,
" and being convicted thereof shall
" be liable, at the discretion of the
" court, to be kept in penal servi-
" tude for any term not exceeding
" seven years and not less than five
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not
" exceeding two years, with or with-
" out . hard labour, and with or
" without solitary confinement'*
{Former provision, 7 & 8 Greo. 4,
c. 29, ss. 49, 50, and 7 & 8 Geo. 4,
c. 27 repealed 52 Geo. 3, c. 63.)
By Selling Property or Secwities
intrusted to their Care.'] — By s. 76,
" whosoever, being a banker, mer
" chant, broker, attorney or agent,
" and being intrusted, either solely
" or jointly with any other person,
" with the property of any other
" person for safe custody, shall,
" with intent to defraud, sell, nego-
" tiate, transfer, pledge, or in any
" manner convert or appropriate
" the same, or any part thereof, to
" or for his own use or benefit, or
" the use or benefit of any perKMi
" other than the person by whom
" he was so intrusted, shall be guilty
" of a misdemeanor." {Former pro-
vision, 20 & 21 Vict, c. 54, s. 2.)
Acting va^der Powers of AUor-
ney.] — ^By s. 77, " whosoever, being
" intrusted, either solely or jointly
" with any other person, with any
" power of attorney for the sale or
" transfer of any property, shall
"fraudulently sell or transfer or
" otherwise convert the same, or
" any part thereof, to his own use
" or benefit, or the use or benefit of
" any person other than the person
" by whom he was so intrusted,
" shall be guilty of a misdemeanor."
{Former provision, 20 & 21 Vict^
c. 54, s. 8.)
Fa4^orsfraiidtdently obtaining Ad-
vances on Property of Prindpak,]
— By s. 78, " whosoever, beinsc a
"factor or agent intrusted, either
"solely or jomtly with any other
" person, for the purpose of sale or
AGENTS AND BANKERS.
141
"othennse with the possession of
" any goods, or of any document of
" title to goods, shall, contrary to or
" without the authority of his prin-
"dpal in that behalf, for his own
"use or benefit, or the use or ben-
" efit of any person other than the
"person by whom he was so in-
" trusted, and in violation of good
" faith, make any consignment, de-
" poat, transfer or delivery of any
" goods or document of title so in-
" trusted to him as in this section
" before mentioned, as and by way
"of a pledge, Uen or security for
"any money or valuable security
" borrowed or received by such fac-
" tor or agent at or before the time
" of making such consignment, de-
"pofdt, transfer or delivery, or in-
" tended to be thereafter borrowed
" or received, or shall, contrary to
" or without such authority, for his
" own use or benefit, or the use or
" benefit of any person other than
"the person by whom he was so in-
" trusted, and in violation of good
" feith, accept any advance of any
" money or valuable security on the
" faith of any contract or agreement
" to consign, deposit, transfer or de-
" liver any such goods or document
"of title, shall 1^ guilty of a mis-
" demeanor, and, being convicted
" thereof, shall be liable, at the dis-
" cretion of the court, to any of the
" punishments which the court may
^ award as hereinbefore last men-
"tioned";
" And every clerk or other person
"who shall knowingly and wilfully
" act and assist in making any such
"consignment, deposit, transfer or
"delivery, or in accepting or pro-
" curing such advance as aforesaid,
" shall be guilty of a misdemeanor,
" and being convicted thereof, shall
" be liable, at the discretion of the
court, to any of the same punish-
"ments: provided, that no such
" fiictor or agent shall be liable to
"any prosecution for consigning,
"depositing, transferring or deliver-
" ing any such goods or documents
'' of title, in case the same shall not
" be made a security for or subject
" to the payment of any greater sum
" of money than the amount which
'' at the time of such consignment,
" deposit, transfer or delivery was
" justly 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 such
" factor or agent." {Former pro-
vision^ 5 &6 Vict. c. 39, s 6.)
The 52 Geo. 3, c. 63, applied only
to persons to whom securities by
agents were intrusted in the exer-
cise of their function or business.
Rex V. Prince. 2 C. & P. 517— Ab-
bott. ^
Where a party established a sav-
ings bank, consisting of 130 mem-
bers, each of whom paid a weekly
subscription of 2s. Icf., the odd pen-
ny being paid to him for the trouble
of managing the affairs of the bank,
the funds of which were to be dis-
posed of once a week by a lottery,
consisting of 129 blanks, and one
prize amounting to 13/. which was
to go to the holder of the fortunate
ticket ; and the defendant having
absconded, after receiving from one
of the subscribers deposits to the
amoimt of 10/. 8«. without receiving
any benefit therefrom : — Held, that
he was not indictable imder the 52
Geo. 3, C.63, for embezzling the mon-
ey as an agent, or as a person hav-
ing the possession of money for safe
custody. Rex v. Mason, D. & R.
N. P. C. 22— Park.
A. placed valuable securities in
the hands of B., with a written di-
rection to invest the proceeds in the
funds, " in case of any unexpected
accident happening to A." No ac-
cident did happen to A., and the
proceeds were by B. converted to
his own use: — ^Held, that B. was
not indictable under 52 Geo. 3, c.
63 (repealed) ; and it seemed that
he woiQd not be so under 7 & 8 Geo.
4, c. 29, s. 49. Rex v. White, 4 C.
& P. 46— Tenterden.
142
EMBEZZL]
BY AGENTS, ETC.
An allegation in an indictment,
that A. placed valuable securities
in the hands of B., ^' with an order
in writing, to invest the proceeds in
the government funds," is not sup-
ported by proof of an order in wnt-
mg, directmg B. to invest the pro-
ceeds in the government funds, in
case of any unexpected accident
happening to A. ib.
Ii any chattel or valuable secur-
ity is intrusted to any broker or
agent originally for the purpose of
sale, but the authority to sell is after-
wards countermanded, and the brok-
er or agent, notwithstanding Uiat
countefrmand, sells the goods in vi-
olation of the orders of his principal,
such broker or agent might be con-
victed of misdemeanor, under 7 &
8 Geo. 4, c. 29, s. 49. jReg. v. Gomm^
8 Cox, C. C. 64— Maule.
An indictment on 7 <fc 8 Geo. 4,
c. 29, s. 49, a^inst a broker for em-
bezzlement of a security for money,
must have alleged a written direc-
tion to him as to the application of
the proceeds. Jieg, v. Golde, 2 M.
<fc Rob. 425 — Denman.
2. TVustees.
By 24 & 25 Vict. c. 96, s. 80,
" whosoever, being a trustee of any
"property for the use or benefit,
** either wholly or partially, of some
" other person, or for any public or
" charitable purpose, shall, with in-
" tent to defraud, coiivert or appro-
" priate the same or any part tnere-
" of to or for his own use or benefit,
" or the use or benefit of any per-
"son other than such person as
" aforesaid, or for aiky purpose oth-
" er than such public or charitable
" purpose as aforesaid, or otherwise
" dispose of or destroy such prop-
" erty or any part thereof, shall
*' be guilty of a misdemeanor :
" provided, that no proceeding or
"prosecution for any offence in-
" eluded in this section rfiall be
"commenced without the sanction
" o^ the Attomey-Generalj or, in
" case that office be vacant, of the
" Solicitor-General : proviaed also,
" that where any civil proceeding
" shall have been taken against any
" person to whom the provi^ons <n
" this section may apply, no person
" who shall have taken such civil
"proceeding shall commence uiy
" prosecution under this section
" without the sanction of the court
" or judge before whom such civil
" proceemng shall have been had or
" shall be pending," {Former pro-
visiouy 20 & 21 Vict. c. 54 ss. 1 and
18.)
By 8. l,"the term Hmstee' shall
"mean a trustee on some expieas
" trust created by some deed, will
" or instrument in writing^ and shidl
" include the heir, or personal repre-
" sentative of any such trustee, and
" any other person upon or to whom
" the duty of such trust shall have
" devolved or come, and also an ex-
" ecutor and administrator, and an
" official manager, assiCTee, liquid-
"ator or .other like officer, acting
"under any present or future act
" relating to joint stock companies,
" bankruptcy or insolvency." (Far
mer provitum^ 20 & 21 Vict. c. 54,
s. 17.)
A person, who was trustee, treas>
urer and secretary of a savings bank,
was indicted for misappropriation
as a trustee. As secretary, he re-
ceived the money deposited, which,
by the rules of the savings bank, it
was his duty to hand over to the
treasurer, who was required by the
Savings Bank AY^ts to pay it over,
when demanded,* to the trustees,
whose duty as defined by the rales,
was to vest it in the public fiinds in
the names of the Commissioners for
the Reduction of the National Debt
He falsified his ac^unts, and appro-
priated to his own purposes part of
the money so deposited with him as
secretary, with intent to defraud : —
Held, first, that he was a trustee for
the benefit of other persons. Beg,
V. Fletcher, L. & O., C. C. 180 ; 82
DIRECTORS, ETC., OF COMPANIES.
143
L. J., M./:. 206 ; 9 Cox, C. C. 189 ;
8 Jut., if S. 649 ; 10 W. R 758 ; 6
LT.,N.S.54o.
Held, secondly, that the rules of
the fiavings bank were an instru-
meiit in writmg. lb.
Held, thirdly, that there was an
expTKs tmst created by the rules,
ftlmongh they were made before the
ai^intment of the trustee and the
existence of the trust fund. lb,
A trustee of a friendly society (a
lo&e of Odd Fellows), was appoint-
ed, by resolution of the society, to
receive money from the treasurer
and carry it to the ba^k. He re-
ceived the money, but instead of
taking it to the bank, he applied it
to his own purposes. He was in-
dicted as a bailee of the monies of
the treasurer R. C, feloniously con-
verting the money to his own use ;
sod also for a common law larceny
of tiie money of R. C. The 18 & 19
Vict. c. 63, s. 18, vests the property
of sach societies in the trustees, and
directs the property to be laid in the
names of the trustees in indictments :
—Held, that the prisoner could not
be convicted of feloniously convert-
ing or stealing the monies of R. C.
afi charged in the indictment. Heg,
V. Loose, 8 Cox, C. C. 802 ; 1 Bell,
C.C.259: 29 L. J., M. C. 132 ; 2
L T., N. S. 254.
Tie court of Chancery sanctioned
criminal proceedings upon an affida-
vit, statmg that a trustee had paid
1,^9/. into his private bankers, nad
drawn out the whole, with the ex-
ception of 28/., and had paid a pri-
vate debt of 160/.<out of the trust
fondSb Wadham v. Rigg^ 1 Drew.
4Sm.216.
3. Directors, Members, and Officers
of Qmpames,
RvudtdenUy AppropriaHng Prop-'
J»i*.l-By 24 A 2§ Vict. c. 96, s. 81,
"whofioever, being a director, mem-
"ber or public officer of any body
" corporate or public company, Aall
"fraudulently take or apply for his
" own use or benefit, or for any use
" or purposes other than the use or
"purposes of such body corporate
"or public company, any of the
" propertj^ of such body corporate
" or pubhc company, shall be guilty
" of a misdemeanor.
Keeping Fraudulent Accounts,'] —
By s. 82, " whosoever, being a di-
" rector, public officer or manager
" of any body corporate or public
"company, shall, as such, I'eceive
" or possess himself *of any of the
" property of such body corporate
" or pubhc company otherwise than
" in payment of a just debt* or de-
"mand, and shall, with intent to
" defraud, omit to make or to cause
" or direct to be made a full and
"true entry thereof in the books
" and accounts of such body corpor-
"ate or public company, shall be
" guilty of a misdemeanor."
Destroying, Altering, Mutilating
or Falsifying Books,]*— By s. 83,
" whosoever being a director, man-
" ager, public officer or member of
" any body corporate or public com-
" pany, shall, with intent to defraud,
" destroy, alter, mutilate or falsify
" any book, paper, writing or valu-
" able security belonging to the
" body corporate or public company,
" or make or concur in the making
" of any false entry, or omit or con-
" cur in the ofaiitting any material
" particular, in any book of account
" or other document, shall be guilty
" of a misdemeanor."
PiMishing tFraudutent State--
ments,] — By s. 84, " whosoever, be-
" ing a director, manager or public
" officer of any body corporate or
" public company, shall make, cir-
" culate or pubUsh, or concur in
" making, circulating or publishing,
" any written statement or accoimt
" which he shall know to be false in
"any material particular, with in-
"tent to deceive or defraud any
" member, ^areholder or creditor
U4
EMBEZZLEMENT BY AGENTS, ETC.
U
Ci
CC
<(
((
H
il
of any such body corporate or
public company, or with intent to
induce any person to become a
shareholder or partner therein, or
to intrust or advance any property
to such body corporate or public
company, or to enter into any se-
curity for the benefit thereof, shall
be guilty of a misdemeanor."
4. Disclosure of Circumstances.
By 24 & 25 Vict. c. 96, s. 85, noth-
" ing in any of the last ten preceding
'' sections of this act contained shall
" enable or entitle any person to re-
'' fuse to make a full and complete
" discovery by answer to any bill in
" equity, or to answer any question
" or interrogatory in any civil pro-
" ceeding in any court, or upon the
" hearing of any matter in bank-
** ruptcy or insolvency ; and no per-
" son shall be liable to be convicted
" of any of the misdemeanors in any
" of the said sections mentioned by
" any evidence whatever in respect
" of any act done by him, if he shall
" at any time previously to his being
"charged with such offence have
" first disclosed such act on oath, in
" consequence of any compulsory
"process of any court of law or
" equity, in any action, suit or pro-
" ceeding which shall have been
" bon^ fide instituted by any party
" aggrieved, or if he shall have first
" disclosed the same in any com-
" pulsory examination or deposition
" before any court, upon the hearing
" of any matter in bankruptcy or in-
" solvency." {I^ormer provision, 7
& 8 Geo. 4, c. 29, s. 52 ; 5 ifc 6 Yict.
c. 39, 8. 6, and 20 & 21 Vict. c. 54,
8. 11.)
Semble, a disclosure of any illegal
act to which the statute relates must
to be rendered available as a protec-
tion, be made bon& fide, and must
not be a mere voluntary statement
made for the express purpose of
screening the person making it
from the consequences of his acts.
In re Strahan, Paul and Bates, 7
Cox, C. C. 85.
An agent intrusted with a bill of
lading, without autiiority of his
principals, and in violation of good
faith, deposited it with bankers for
his own benefit, as a security for ad-
vances. He was charged with this
offence before a magistrate. The
depositions which were taken in
support of the charge contained
ample evidence to support it. Hav-
ing become bankrupt, he was taken
by his creditors and examined re-
specting the subject-matter of l^e
charge before a commissioner in
bankruptcy, and then made a state-
ment in every respect in accordanoe
with the evidence in the depositions.
He was afterwards indicted on the
same charge. On the trial, his ex-
amination in bankruptcy was of-
fered by him as a defence, as show-
ing that he had disclosed the act
before a commissioner in bankrupt-
cy previously to being indicted tor
the offence, and that therefore he
was not liable to conviction, by vir
tue of 5 & 6 Vict. c. 39, s. 6. This
evidence of disclosure was held to
be admissible under not guilty.
Beff. V. Skeen, Bell, C. C. 97 ; 5
Jur., K S. 151 ; 28 L. J., M. C. 91 ;
8 Cox, C. C. 143 ; 7 W. R. 255.
The majority of a court was,
however, of opinion, that as the
agent only stated before the com-
missioner matter which had been
previously known and previously
proved before the magistrate, he had
not made any disclosure \vithin the
meaning of the statute, and conse-
quently was not entitled to protec-
tion. The minority held, that as the
statement of the agent was obtamed
on a compulsory examination, insti-
tuted bona fide by tlie creditors for
their own interest, it was a disclos-
ure before a commissioner within the
act, notwithstanding the pre\'ious
publicity of the matter there inquir
ed into. lb,
5. Jurisdiction of Quarter Sessions,
By 24 & 25 Vict. c. 96, s. 87,
"no misdemeanor against any dT
FALSE PRETENCES AND CHEATS -STATUTES. 145
" the last twelve preceding sections
" of this act shall be prosecuted or
" tried at any court of general or
"qnarter sessions of the peace."
JumdicHon of Justices to hear and
dctemiVw.]— By 31 & 32 Vict. c.
116, s. 2, all the provisions of 18 &
19 Vict c. 126, '* for the summary
"convictions of defendants by jus-
" tices, shall extend and be applic-
"able to the offence of embezzle-
"ment by clerks and servants, or
" persons employed for the purpose
" or in the capacity of clerks or
^servants; and the said act shall be
" read as if the offence of embezzle-
" ment had been included therein."
XV. False Pbetences and
Cheats.
1. Statutes, 145.
2. What are, 146.
(a) General Principles, 146.
(b) By means of False Orders,
151.
(c) By means of False Accounts,
152.
(d) By means of Contracts, 153.
(e) As to the Quality of Articles
of Merchandise, 155.
(f } As to the Quantity or Weight
of Articles of Merchandise,
156. [158.
(g) By Promises of Marriage,
(h) By means of Cheaues, Bills
of Exchange or Promissory
Notes, 158.
(i) By passing off Flash or
Worthless Batik Notes,
160.
( j ) In respect of what Chattels or
Securities, 161.
3. Cheats, 162.
4. Inducing persons by Fraud to exe-
cute or destroy Valuable Securities.
5. Amounting to Larceny, 1 63 . [162.
6. Parties Indictable, 164.
7. Indictment, 164.
8. Evidence, 167.
9. Trial, 169.
10. Receiving Property obtained by
False Pretences, 170.
1. Statutes,
By 24 & 25 Vict. c. 96, s. 88,
" whosoever shall by any false pre-
" tence obtain from any other per-
" son any chattel, money or valu-
Fish. Dig.— 10.
" able security, with intent to de-
" fraud, shall be guilty of a misde-
" meaner, and being convicted
" thereof shall be liable, at the dis-
" cretion of the court, to be kept in
"penal servitude for the term of
" three years, or to be imprisoned
" for any tenn not exceeding two
" years, with or without hard labour,
" and with or without solitary con-
" finement." {Previous enactment, 7
& 8 Geo. 4, c. 29, s. 53, repealed by
24 & 25 Vict. c. 95.)
" Provided, that if upon the trial
" of any person indicted for such mis-
" demeanor, it shall be proved that
" he obtained the property in ques-
" tion in any such manner as to
" amount in law to larceny, he shall
" not by reason thereof be entitled
"to be acquitted of such misde-
" meanor ; and no person tried for
" such misd/emeanor shall be liable
" to be afterwards prosecuted for
" larceny upon tbe same facts."
7 & 8 Geo. 4, c. 29, wholly re-
pealed 33 Hen. 8, c. 1 ; 52 Geo. 3, c.
64, and so much of 30 Geo. 2, c. 24,
s. 1, as related to thissub/ect.
Bank-notes were not money,
goods, wares or merchandises, with-
in 30 Geo. 2, c. 24, s. 1. Bex v.
mU, R. & R. C. C. 190. But! Ss
8 Geo. 4, c. 29, s. 53, extended 30
Geo. 2, c. 24, to persons obtaining,
by false pretences, any valuable se-
curity.
By 24 & 25 Vict. c. 96, s. 89,
" whosoever shall by any false pre-
" tence cause or procure any money
" to be paid, or any chattel or val-
" uable security to be delivered to
"any other person for the use or
" benefit or on account of the per-
" son making such false pretence,
" or of any other person, with in-
" tent to defraud, shall be deemed
" to have obtained such money,
" chattel or valuable security with-
" in the meaning of the last preced-
"ing section."
To constitute the offence of ob-
taining any chattel, money or valu-
able security by false pretences, the
146
FALSE PRETENCES AND CHEATS.
obtaining must be in accordance
with the wish, or for the advantage,
or for the purpose of effecting some
object, of the party making the
false pretence. JReg. v. Garrett^
Dears. C. C. 232 ; 17 Jur. 1060 ;
23 L, J., M. C. 20 ; 2 C. L. R. 106 ;
6 Cox, C. C. 260.
By 22 & 23 Vict. c. 17, 6. 1, " no
" biU of indictment for obtaining
" money or other property by false
" pretences shall be found by any
" grand jury unless the prosecutor
" has been bound by recognizance
" to prosecute, or the person accused
" has been committed or bound by
" recognizance to answer an indict-
" ment for such offence, or unless
" the indictment is preferred by the
" direction, or with the written con-
" sent, of a judge or of the attomey-
" general."
2, What are.
(a) General Principles,
A pretence that a person would
do an act that he did not mean to
do (as a pretence to pay for goods
on delivery), was not a false pre-
tence within 30 Geo. 2, c. 24, s. 1.
Eex V. Goodh<m, R & R. C. C. 461.
But pretending to have been in-
trusted by one to take his horses
from Ireland to London, and to have
been detained by contrary winds
till all his money was expended,
was within 30 Greo. 2, c. 24, s. 1.
B/ex V. VtUeneuve, 2 East, P. C. 830.
It was a false pretence within 30
Oeo. 2, c. 24, s. 1 , where the prison-
er obtained money from the keeper
of a post office, by assuming to be
the person mentioned in a money
order, which he presented for pay-
ment, though he did not make any
false declaration or assertion in or-
der to obtain the money. Hex v.
Story, R. & R. C. C. 81.
A prisoner was charged with ob-
taining a filly by the false pretence
that he was a gentleman's servant,
and had Uved at Brecon, and had
bought twenty horses in Brecon &ir.
It appeared that he bought the fillj
of the prosecutor for 11/., making
him this statement, which was false,
and also telling him that he would
come down to the Cross Kevs and
pay him. The prosecutor stated
that he parted with his filly because
he expected the prisoner would
come to the Cross Keys and pay
him, and not because he believed
that the prisoner was a gentleman's
servant : — Held, that if the prose-
cutor did not part with his filly bv
reason of the false pretence charged,
or any part of it, the prisoner most
be acqmtted. liex v. Dale, 7 C. A
P. 352— Coleridge.
A pretence to a parish officer, as
an excuse for not working, that the
Earty has not clothes, when he really
as, although it induces the officer
to give him clothes, was not obtain-
ing goods by false pretences wiUiin
30 Geo. 2, c. 24, s. 1. Hex v. Wah-
ling, R. & R. C. C. 504.
The offence of obtaining money
under false pretences, created by 30
Geo. 2, c. 24, s, 1, was complete
only where the money was obtained.
Pearson v. Jf Gotoran, cited 5 D. 4
R. 616; 3B. &C. 700.
To have constituted an offence
within 30 Greo. 2, c. 24, s. 1, money
or goods must have been obtained
by a false pretence with an inten-
tion to defraud; but the pretence
mio^ht have related to a future trans-
action. Hex v. Toung, 1 Leach, C.
C. 505 ; 2 East, P. C. 82, 833; 3 T.
R. 98.
It is a false pretence if a carrier
obtains the carriage-money by pre-
tending to have delivered the goods
and lost the bailee's receipt for them.
Rex V. Airey, 2 East, P. C. 831; I
East, 30 ; S, P, Hex v. Oolema», 2
East, P. C. 672.
Where an indictment charges a
false pretence of an existing fact
calculated to induce the confidence
which led to the prosecutor's |»rt-
ing with his property, though mixed
up with false pretences as to the
prisoner's future conduct, it is soffi-
WHAT ARE.
147
cient Reg, v. BateSy 8 Cox, C. C.
201 -Piatt.
Where the false pretence is as to
the status of the party at the time,
or as to any collateral fact supposed
to be then existing, it will equally
sapport an indictment. lb.
An indictment for obtaining mon-
eybv false pretences cannot be sus-
tained, if the prosecutor when he
parted with his money knew the re-
presentation to be false. Heg, v.
MIU, 7 Cox, C. C. 263 ; Dears. &
B. C. C. 205 ; 26 L. J., M. C. 79.
A false pretence must be the false
pretence of an existing fact, and if
the person to whom it is made is
defraaded by it, it makes no differ-
ence that he might have known
that the pretence was false, or that
it is not such a pretence as would
be likely to defraud a person of or-
dinary caution. Jieg. v. Woolley^ 3
C. & K. 98 ; 1 Den. C. C. 559 ; T.
k M. 279 ; 4 New Sess. Cas. 341 ;
14 Jar. 465 ; 19 L. J., M. C. 165 ; 4
Cox, C. C. 193.
Therefore, where A., the secretary
of a lodge of odd fellows, told B., a
member of the lodge, that he owed
the society 13*. 9c?., when in fact B.
only owed 2$, 3d., and A., by this
Mse pretence, obtained the money
ofB: — Held, that this was an ob-
taining of money by false pretences.
A fraudulent misrepresentation
of an existing matter of fact, accom-
panied by an executory promise to
do something at a future period, as
that the prisoner had bought cer-
tain skins, and would sell them to
the prosecutor, is a false pretence
within the statute, although it ap-
pears that the promise, as well as
sadi misrepresentation of fact, in-
duced the prosecutor to part with
the money. Heg. v. West, Dears.
& B. C. C. 575 ; 4 Jur., N. S. 514 ;
27L, J.,M. C. 227 ; 8 Cox, C. C. 12.
Obtaining a gift of money by
means of &lse statements, is ob-
taining money by false pretences.
Heg. V. Jones, T. & M. 270 ; 4 New
Sess. Cas. 353 ; 1 Den. C. C. 551 ; 3
C. & K. 346; 14 Jur. 533 ; 19 L.
J., M. C. 162 ; 4 Cox, C. C. 198.
A begging letter, making false
representations as to the condition
and character of the writer, by
means of which money is obtained,
is a false pretence. lb.
The crime of obtaining goods
by false pretences is complete, al-
though at the time when the prison-
er made the pretence, and obtained
the goods, he intended to pay for
them when it should be in his power
to do so. jReg. V. Naylor, 10 Cox,
C. C. 151 ; 1 L. R., C. C. 4 ; 11
Jur., N. S. 910 ; 35 L. J., M. C. 61 ;
14 W. R. 58 ; 13 L. T., N. S. 381.
Where a prisoner, being employ-
ed at an hospital, wrote to the prose-
cutor, as manager, for a small quan-
tity of linen, not saying it was for
the hospital, and in point of fact he
was not manager, and the goods
were really ordered for himself, but
not sent, on an indictment for an
attempt to obtain them, the question
left to the jury was, whether he or-
dered the goods as for and on behalf
of the hospital or in his own name,
there being no evidence of an in-
tention to pay cash, but evidence of
its absence. Meg. v. Franklin, 4 F.
& F. 94— Willes.
If a party obtains money by a
false pretence, knowing it to be
false at the time, it is no answer to
shew that the party from whom he
obtained the money laid a plan to
entrap him into the commission of
the offence. Reg. v. Ady, 7 C. & P.
140—Vaughan and Patteson.
A person who makes a false pre-
tence of having a power to do some-
thing, whether the power is physic-
al, moral or supernatural, for the
purpose of obtaining money or
goods, is indictable for false pre-
tences. Reg. V. Giles, L. & C. 502 ;
10 Cox, C. C. 44; 11 Jur., N. S.
119 ; 34 L. J., M. C. 51 ; 13 W. R.
327; 11L.T.,N.S. 643.
It is not necessary that tlie false
pretence should be made in express
148
FALSE PRETENCES AND CHEATS.
words, if it can be inferred from all
the circumstances attending the ob-
taining of the property, ih.
B. was indicted for having falsely
pretended that he was Mr. H., who
had cured Mrs. C. at the Oxford
Infirmary, and thereby obtaining
«5«. with mtent to defraud G. P. B.
•made the pretence, and thereby in-
duced the prosecutor to buy, at the
expense of 5«., a bottle containing
something which he said would
cure the eye of the prosecutor's
child. It was proved that B. was
not Mr. H : — Held that this was a
false pretence. Meg, v. BbomjUld^
Car. & M. 537 ; 6 Jur. 224— Cress-
well.
If a person at Oxford, who is not
a member of the University, goes to
a shop for the purpose of fraud,
wearing a commoner's cap and
gown, and obtains goods ; this ap-
pearing in a cap and gown is a suf-
ficient false pretence to satisfy the
statute, although nothing passes in
words. Rex v. Barnard^ 7 C. ife P.
784— Bolland.
A., by falsely representing that a
house and some shops had been
built upon certain land, obtained
from the prosecutor an advance of
money. A. deposited the lease of
the land, signed an agreement to
execute a mortgage and executed a
bond as security lor the money : —
Held, that he was rightly convicted
of obtaining money by false pre-
tences. Meg. V. Burgon^ Dears. &,
B. C. C. 11 ; 2 Jur., N. S. 596 ; 25
L. J., M. C. 105 ; 7 Cox, C. C.
131.
Although to constitute the stat-
utable ofience of obtaining money
by means of false pretences, the pre-
tence must be false at the time :
Semble, it need not necessarily be
of some alleged existing fact, ca-
pable of being disproved by positive
testimony, but may depend on the
bon& fide intention and willingness
of the defendant at the time of en-
tering into a contract to perform it,
or to do some act at a future period.
Reg, v. Jonei^ 6 Cox, C. C. 467—
Crompton.
A false pretence as to an existiug,
essential fact will sustain an indicU
ment for obtaining money by false
pretences, although it is united with
false promises, which alone would
not have supported the conviction.
Reg, V. Jennison^ L. & C. 157 ; 9
Cox, C. C. 158 ; 8 Jur. N. S. 442;
31 L. J., M. C. 146 ; 10 W. R. 488;
6 L. T., N. S. 256.
The prosecutor lent 10/. to the
prisoner on the false pretence that
he was going to pay his rent, and if
the prisoner had not told him that
he was going to pay his rent, the
prosecutor would not have lent the
money : — ^Held, that this was not a
false pretence of anv existing fact,
to warrant a conviction. Meq, v.
Lee, 9 Cox, C. C. 304 ; L. & C.
309 ; 11 W. R. 761 ; 8 L. T., N.
S. 437.
A. was indicted for obtaining
goods by false pretences. He ofc
tained the goods from tlie prosecu-
tor by pretending that he wanted
them for S., whom he represented
as living at N., and being a person
to whom he would trust 1,000/.,
and who went out twice a year to
New Orleans to take ^oods to his
sons. The jury found that all these
representations were false, and that
the prosecutor, believing that A.
was connected with S., and em-
ployed by him to obtain the goods,
contracted with A. and not with the
supposed S., and delivered the goods
to A. for himself, and not for S.:—
Held, that A. was rightly convicted.
Reg. V. Archer, Dears. C. C. 449 ;
1 Jur., N. S. 479 ; 6 Cox, C. C.
515 ; 3 C. L. R. 623.
Money was obtained by the pris-
oner from an unmarried woman oa
the false representations that he
was a single man, and that he
would furnish a house with the
money, and would then marry her :
— Held, that the false representa-
tion of an existing fact (that he
was not a single man) was sufficient
WHAT AliE.
149
to PujijKJit a conviction for false
pretences, although the money was
obtained hy that representation,
united with the promise to furnish
a house and then marry lier. Heg,
\,Jennis<m, 9 Cox, C. C. 158 ; L.
k C. 157 ; 31 L. J., M. C. 146.
An attorney, who had apj)eared
for a person who was fined 2/. on a
summary conviction, called on a
person's wife and told her that he
bad been with another person, who
was fined 2/. for a like offence to
]tfr. B. and Mr. L., and that he had
preyailed upon Mr. B. and IVIr. L.
to take \L instead of 2^., and that
if Bhe would give him \L he wouid
go and do the same for her. She
gave tKe attorney a sovereign, and
afterwards paid him for his trouble.
It was proved that the attorney
never applied to either Mr. B. or
Mr. L. resj)ecting either of the fines,
and that both were afterwards paid
in full : — Held, that he was guilty
of obtaining money by false pre-
tences. Rex V. Asterley^ 7 C. <fc
P. 191— Park.
A. owned B. a debt, of which B.
could not get payment. C, a serv-
ant of B., went to A.'8 wife and
obtained two sacks of malt from
her, saying that B. had bought
them of A. C. knew this to be
fclse, but took the malt to B., his
master, to enable him to pav him-
self the debt .-—Held, that if C. did
not intend to defraud A., but mere-
ly to put it into his master's power
to compel A. to pay him a just
debt, C. ought not to be convicted
of obtaining the malt by false pre-
tences. Rex V. WiUia^ns^ 1 Q, &
P. 354— Coleridge.
A defendant was tried upon an
indictment for obtaining money by
&lse pretences, in which it was al-
leged that she had represented that
Sue kept a shop, and that the prose-
cutrix might go and live with her
till she got a situation. It was
proved that the defendant did not
keep a shop, and the prosecutrix
stated that she lent the defendant
the money because the latter had
said that she kept the shop, and
that she, the prosecutrix, should
have the money when she got home
with her. The jury returned a
special verdict, findinsj the defend-
ant guilty of fraud utently obtain-
ing the money, the prosecutrix part-
ing with it under the belief that
the defendant kept a shop, and that
the prosecutrix should have it when
she went home with her : — Held,
that the defendant was properly
convicted of obtaining money by
false pretences. Reg. v. Fry^ Dears.
& B. C. C. 449 ; 4 Jur., N. S. 266;
27 L. J., M. C. 68 ; 7 Cox, C. C.
394.
On a trial of an indictment whicli
charged the prisoner with obtain-
ing a horse of the prosecutor by
falsely representing himself to be
the sei'vant of Hardman, of Stick-
ley, the evidence was that the pris-
oner at first represented himself as
a servant of Hardman, of Stickley
Farm, but that afterwards, learn-
ing that the prosecutor had mis-
takingly supposed that he had said
he was the servant of Harding, late
of Ben well Lodge, he adopted that
view, and virtually said that he
was the servant of Harding, late of
Benwell Lodge, and now of Stick-
ley Farm. It was proved that the
prosecutor parted with his horse in
the belief that the prisoner was the
servant of Harding : — Held, that
the conviction could not be sup-
ported, as the real pretence that
operated on the prosecutor's mind
was not alleged in the indictment.
Reg, V. Bidmer^ L. & C. 476 ; 9
Cox, C. C. 492 ; 10 Jur., N. S. 684;
33 L. J., M. C. 171 ; 12 W. R. 887 ;
10 L. T., N. S. 580.
What amowit to,] — A conviction
for obtaining a chattel by false pre-
tences is good, although the chattel
is not in existence at the time the
pretence is made, provided the sub-
sequent delivery of the chattel is
directly connected with the false
150
FALSE PRETENCES AND CHEATS.
pretence. Wliether or not there
is such a direct connexion is a
question for a jury. Reg. v. Mar-
tin, 1 L. R, C. C. 56 ; 36 L. J., M.
C. 20 ; 10 Cox, C. C. 383 ; 15 L.
T., N. S. 54 ; 15 W. R. 358.
• The prisoner, by falsely pretend-
ing to G. that he was agent to a
steam laundry company, of which
some of the leading men in B. were
at the head, and that he was de-
sired by the company (which, he
subsequently admitted, was only
himself) to procure a van, induced
G. to make the van ; but, before it
was sent to the laundry premises,
countermanded it. G. nevertheless
delivered the van, which the pris-
oner returned to G., telling him
that he ought not to have sent it
after the countermand. G. said he
should not know what to do with
it, and that the prisoner must keep
it, upon which he replied that, if he
did, G. must put in some boards for
the baskets of linen ; to which G.
assented, and the prisoner then
drove away with the van. Upon
indictment for obtaining the van by
false pretences: — Held, that there
was evidence to go to the jury.
Ih.
Hewers and putters in a colliery
had tokens differently marked,which
they placed on the tubs of coal
drawn up the pit, and which were
then taken off and put into a box,
and their wages calculated accord-
ing to the number of tokens sent
up by them. The putter fetched
the empty tub to the hewer, and
took it when full to the station to
be drawn up to the bank ; before
the tub was filled he placed his
token on it, to denote the sum he
was entitled to for his labour in put-
ting and removing the tub to the
station, and the hewer put his token
also to denote the amount he was
entitled to for hewing the coal and
filling the tub. A hewer removed
the putter's token after the tub was
brought to him and substituted one
of his own, and then put an addi-
tional token of his own for hewing
and filling the tub. The tub was
then drawn up, and the two tokens
thrown into the box. The contents
of the box were then takep away
by the tokenmau, and the accounts
of the different workmen made up
according to the number of tokens
found with their initials on. In
that way the hewer obtained money
for hewing and filling two tubs of
coals instead of one only:— Held,
that this amounted to an indictable
false pretence. Reg, v. Hunter, 17
L. T., N. S. 321 ; 10 Cox, C. C.
642; 16 W. R. 342— C. C. R.
A postman falsely pretended that
the sum of 2«, was payable on a
post letter entrusted to him for de-
livery, whereas Is, only was pay^
able : — Held, that the offence was
complete when he made the pre-
tence, and therefore the absence of
any evidence to show positively
that he did not pay over the extra
Is. to the superior oflicer was quite
immaterial to his guilt or innocence.
Reg. V. Byrne, 10 Cox, C. C. 369.
A prisoner obtained a sum of
money from the prosecutor by pre-
tending that he carried on an ex-
tensive business as an auctioneer
and a house agent, and that he
wanted a clerk, and that the money
was to be deposited as security for
the prosecutor's honesty as such
clerk. The jury found that the
prisoner was not carrying on any
such business at all : — Held, that
this was an indictable false pre-
tence. Reg. V. Grab, 18 L. T., N.
S. 370 ; 16 W. R. 732 ; 11 Cox,C.
C. 85— C. C. R.
An indictment charged that the
prisoner was living separately from
her husband, and receiving an in-
come from him for her separate
maintenance under a deed of sepa-
ration, which stipulated that he
should not be liable for her debt* ;
and that she falsely pretended to
U., a servant of W.-, that slie was
living under the protection of her
husband, and was authorized to
WHAT ARE.
151
apply to W. for goods on the credit
of her husband, and that he was
willing to pay for tliem ; and that
she wanted them to furnish a house
in his occupation. It was proved
that orfthe 4th of August she called
at W.'s shop, and on being served
by tJ., selected certain goods, and,
heing asked for a deposit, said it
was a cash transaction, that her
husband would give a cheque as
soon as the goods were delivered.
T^e deed was proved, and it was
also proved that the annuity cove-
nanted to be paid by the husband
was duly paid ; that the house
which she gave as her address, and
which was found shut up after the
goods had been sent to it, had been
taken by her whilst in company
with a man with whom she had
been livincr as his wife from the
middle of Julv till the end of Au-
gust : — Held, that there was abund-
ant evidence to support a convic-
tion. Ber/, V. Davis, 17 W. R.
127 ; 19 L. T., N. S. 325 ; 11 Cox,
C. C. 181— C. C. R.
On an indictment for obtaining
goods in a market by falsely pre-
tending that a room had been taken
at which to pay the market people
for their goods, the jury found that
the well-known practice was for
buyers to engage a room at a pub-
lic house, and that the prisoner con-
Teyed to the minds of the market
people that she had engaged such a
room, and that they parted with
their goods on such belief : — ^Held,
there being no evidence that the
prisoner knew of such a practice,
and the case being consistent with
a promise only on her part to en-
gage such a room and pay for the
goods there, a conviction could not
be sustained. Heg. v. Burrows, 20
L. T., N. S. 499 ; 17 W. R. 682 ;
11 Cox, C. C. 258— C. C. R.
The prosecutor lent money to the
prisoner at interest, on the security
of a bill of sale on furniture, a
promissory note of the prisoner and
another person, and a declaration
made by the prisoner that the fur-
niture was unencumbered. The
declaration was untrue at the time
it was handed to the prosecutor,
the prisoner havinsj a few hours be-
fore given a bill of sale for the fur-
niture to another person, but not to,
its full value : — Held, that there
was evidence in support of a charge
of obtaining money by false pre-
tences. Meg. V. MeaMn, 11 Cox,
C. C. 270 ; 20 L. T., N. S. 544 ; 17
W. R. 683— C. C. R.
On an indictment for obtaining
money by false pretences, it ap-
peared that the prisoner, on engag-
ing an assistant from whom he re-
ceived a deposit, represented to him
that he was doing a good business,
and that he had sold a good busi-
ness for a certain large sum, where-
as the business was worthless, and
he had been bankrupt : — Held, that
the indictment could not be sus-
tained, upon either of the repre-
sentations. JReff, V. Williamson,
21 L. T., N. S. 444— Byles.
(b) By Meatis of False Orders.
B. was one of many persons em-
ployed whose wages were paid
weekly at a pay-table. On one
occasion, when B.'s wages were
due, the prisoner said to a little
boy, " I will give you a penny if
you will go and get B.'s money."
The boy innocently went to the
pay-table, and said to the treasurer,
" I am come for B.'s money ;" and
B.'s wages were given to him. He
took the money to the prisoner,
who was waiting outside, and who
gave the boy the promised penny :
— Held, that the prisoner could not
be convicted on the charge of ob-
taining the money from the treas-
urer by falsely pretending to the
treasurer that he, the prisoner, had
authority from B. to receive his
money, or of obtaining it from the
treasurer and the boy, by falsely
pretending to the boy that he had
such authority, or of obtaining it
from the boy by the like false pre-
152
F^SE PRETENCES AND CHEATS.
tence tx) the boy ; but that he might
have baeu convicted on a count
charging him with obtaining it
from the treasurer, by falsely pre-
tending to the treasurer that the
boy had the authority from B. to
receive the amount. Iteq, v. Bvtch-
'er, Bell, C. C. 6 ; 4 Jur., N. S.
1155 ; 28 L. J., M. C. U ; 7 W. R.
38 ; 32 L. T. 110 ; 8 Cox, C. C. 77.
A surveyor of highways, having
authority to order gravel for the
roads, ordering gravel as usual,
and applying it for his own use, is
not liable to a charge of obtaining
it by false pretences; nor for lar-
ceny, unless it appears that he did
not mean to pay for it. I^eg, v.
Rkhardsm, 1 F. & F. 488— Wight-
man.
An indictment that B. obtained
twenty yards of carpet by falsely
pretending that a certain person
who lived in a large house down
the street, and had had a daughter
married some time back, had been
at him about some carpet, and had
asked him to procure a piece of
carpet, whereas no such person had
been at him about any carpet, or
had any such person asked him to
procure any piece of carpet. The
evidence was that B. obtained
twenty yards of carpet by stating
to the prosecutor, who was a shop-
keeper in a village, that he wanted
some carpeting for a family living
in a large house in the village who
had had a daughter lately married ;
that B. afterwards sold the carpet-
ing so obtained to two different
persons, and a lady was called,
who lived in the villasce, whose
daughter was married about a year
previously, and who stated that she
had not sent B. to the prosecutor's
shop for the carpet : — Held, that
there was a sufficient false pretence
alleged and proved, and that it was
sufficiently negatived by the evi-
dence. Reg, V. Bumsides^ Bell, C.
C. 282 ; 8 Cox, C. C. 370 ; 30 L.
J., M. C. 42 ; 9 W. R. 37; 3 L. T.,
N. S. 311.
(c) By Means of Fahe AfromtU.
A workman, emplu} eJ by clutJi-
iers, was to keep an account of the
number of shearman employed, and
the amount of their earnings and
wages, which he was week^ to de-
liver to a clerk, in writing, who
paid him the amount ; he delivered
in a false account, charging for
more work, and of other men, than
was actually done, by which he
obtained a larger sum than was
actually due : — ^Held, an obtaining
money under false pretences, with-
in 30 Geo. 2, c. 24, because ^rithout
the false pretence he would not
have obtained the credit, and was
not like a case of money paid gen-
erally on account. Bex v. Mikk
ell, 2 East, P. C. 830.
A., the servant of B., rendered
an account to B. of 141, Is, 2d., as
due from A. to his workmen, and
B. gave A. a cheque for the amount
All that sum was so due except 7«,,
which A. kept, when he got the
cheque cashed, and paid the work-
men the residue. In an indictment
it was charged that by this felse
pretence, A. obtained the cheque
from B., with intent to defraud him
of the s^me. It was objected, that
the intent was only to defraud B.
of a part of the proceeds of the
cheque. A. was convicted, and the
judges held the conviction right,
and that the evidence supported the
count. Beg, v. Leonard, 2 C. 4
K. 514; 1 Den. C. C. 304.
A servant of A. applied to B.
for payment of 175. due from B. to
A. B. refused to pay it without
A.'s receipt. The servant went
away, and returned with this docu-
ment, whereupon B. paid tlie deht:
— Held, a question for the juiy,
whether the servant tendered the
receipt as the handwriting of A,
which would make him hable on
this indictment, or as his own,
which would make his act a fake
pretence. Beg, v. Inder, 1 Den.
C. C. 325.
It was the prisoner's duly, as
FALSE ACCOUNTS.
158
bailiff to the prosecutor, to pay
and receive monies. Upon an ac-
count rendered of such payments
and receipts, it appeared he had
charged his master with five pay-
ments 6f 11. Ss. instead of 1/. 4^.,
the sums he had actually paid.
There was also a similar over-
^arge of two other amounts: —
Held, that the prisoner was wrong-
ly convicted of larceny, the offence,
if any, being that of obtaining mon-
ey by false pretences. £e</. v
Grteii, Dears. C. C. 323 ; 18 Jur.
158.
It was the duty of the prisoner,
who was a servant of the prose-
cutors, in the absence of their chief '
clerk, to purchase and pay for, on
behalf of his masters, any kitchen
stuff brought to their premises for
sale. On one occasion he falsely
stated to the chief clerk that he
had paid 2s. Bd, for kitchen stuff,
which he had bought for his mas-
ters, and demanded to be paid for
it The clerk on this paid him 2s.
M. out of the money which his
master had fumLshed him with to
pay for the kitchen stuff. The pris-
oner applied the money to his own
use :— Held, that as the clerk had
delivered the money to the prisoner
with the intention of parting with
it altogether, the prisoner was not
liable to an indictment for stealing
the money, but that he migbt have
been indicted for obtaining by false
pretences. Seff. v. BamieSy T. &
31 387 : 2 Den. C. C. 59 ; 14 Jur.
1123; 20 L. J., M. C. 34.
It was the duty of a servant to
ascertain daily the amount of dock
dues payable by his master, and,
having ascertained it, to apply to
his master's cashier for the amount,
and then to pay it in discharge of
the dues. On one occasion, by
representing falsely to the cashier
tiiat the amount was larger than it
really was, as he well knew, he ob-
tained from the cashier the sum he
stated it to be, and then paid the
real amount due, and appropriated
the difference : — Held, that his of-
fence was not larceny, but obtain-
ing money by false pretences. Reg.
V. Thompson, L. & C, C. C. 233 ;
9 Cox, C. C. 222; 32 L. J., M. C.
57 ; 8 Jur., K S. 1162 ; 11 W. R.
41 ; 7 L. T.. N. S. 393.
£y Means of False Accomits.^ —
An indictment alleged that the pris-
oner obtained a coat by falsely
pretending that a bill of parcels
of a coat, value 14^. 6c?., of
which 4«. ^d. had been paid on
account, and that 10«. only was
due, was a bill of parcels of an-
other coat of the value of 22^. The
evidence was that the prisoner's
wife had selected the \As. Qd. coat
for him, subject to its fitting him,
and had paid 4s, Qd. on account, for
which she received a bill of parcels
giving credit for that amount. On
trying on the coat it was found to
be too small, and the prisoner was
then measured for one to cost 22s.
When that was made it was tried
on by the prosecutor, who was not
privy to the former part of the
transaction. The prisoner when the
coat was given to him handed the
bill of parcels for the 14«. 6d. and
10s., saying, " There is lOs. to pay."
The bill was receipted, and the pris-
oner took the 22s. coat away with
him. The prosecutor stated that
believing the bill of parcels to refer
to the 22s. coat, he parted with that
coat on payment of 10«., otherwise
he should not have done so : — Held,
that there was evidence to support
a conviction. JReg. v. Steels, 17 L.
T., N. S. 666; 16 W. R. 341; 11
Cox, C. C. 5— C. C. R.
(d) By Means of Contracts.
Knowingly exposing to sale and
selling wrought gold under the ster-
ling alloy, as and for gold of the
true standard weight, which is in-
dictable in a goldsmith, is a private
imposition only in a common per-
son. Bex V. Bower, Cowp. 323.
Delivering less beer in a cask
154
FALSE PRETENCES AND CHEATS.
than contracted for a8 the due
quantity is not an indictable of-
fence. Rex V. W?ieaUey^ 1 W. Bl.
273; 2 Burr. 1129.
Nor is delivering less oats than
the quantity contracted for as the
due quantity. Hex v. jymvnage^ 2
Burr. 1130.'
A false pretence knowingly made
to obtain money is indictable,
though tlie money is obtained by
means of a contract which the
prosecutor was induced to make by
the false pretence of the prisoner.
Req. V. AbhM, 1 Den. C. C. 273 ;
2 C. &. K. 630 ; 2 Cox, C. C. 430 ;
S, P., Reg, V. Dark, 1 Den. C. C.
276; Reg, v. Kenrkk^ D. & M.
208 ; 5 Q. B. 49.
A person, who by falsely repre-
senting himself to fill a particular
character, induces another to enter
into a contract with him for board
and lodging, and is supplied accord-
ingly with various articles of food,
camiot be convicted of obtaining
goods by false pretences, the ob-
taining of the goods being too re-
motely connected with the false
representation. Reg, v. Gardner,
7 Cox, C. C. 136 ; 2 Jur., N. S.
598 ; 25 L. J., M. C. 100.
A carrier, having ordered a cask
of ale, said, after he had possession
of it, "This is for W.^':— Held,
that an indictment for obtaining it
by falsely pretending that he was
sent for it by W. could not be sus-
tained. Reg, V. Brooks, 1 F. & F.
502 — Wightman.
The prisoner having pretended to
sell goods to A. which he had pre-
tended to buy for him from B., and
then the goods having been sent by
B. to A., having got the money
from A. : — Held, not indictable for
obtaining goods from B. by false
pretences. Reg, v. Martin, 1 F. &
F. 501— Wightman.
If one professes to sell an interest
in property, and receives the pur-
chase-money, the vendee taking the
usual covenant for title ; and it
turns out that the vendor has in
fact previously sold his interest in
the property to a third person ; this
is not sufficient to support an in-
dictment for obtaining money by
false pretences. Rex v. Codrhtg-
ton, 1 C. & P. 661— Littledala
When a contract has been es-
tered into by reason of false repre-
sentations, and goods or money ob-
tained under the contract, it is too
remote to charge the obtaining of
the goods or money by the nlse
pretences. Reg, v. Bryan, 2 F. 4
F. 567— Hill.
The prisoner, by false and frand-
ulent representations made to the
prosecutor, as to his business, cna-
tomers, and profits, induced the
prosecutor to enter into a partner-
ship with him, and to advance 500/.,
as part of the capital of the concern;
and the prosecutor, after sucK ad-
vance, recognized and acted upon
such partnership: — ^Held, that tins
was not an obtaining of money by
false pretences. Reg, v. Watson,
Dears. & B. C. C. 348 ; 4 Jur., N.
S. 14; 27 L. J., M. C. 18; 7 Coi,
C. C. 364.
The prisoner entered into partner-
ship with the prosecutors, and it
was subsequently agreed that he
should travel about the country to
obtain orders, and have a commiB-
sion upon all orders he might re-
ceive, such commission to be paid
to him as soon as he received the
orders, and to be payable out of the
capital funds of the partnership be-
fore dividing any profits. He false-
ly represented to his partners that
he had obtained a certain order, and
in consequence was paid his com-
mission thereon : — Held, that this
was a mere matter of account be-
tween the partners, and that the
prisoner was, therefore, not guilty
of obtaining money by false pre-
tences. Reg, V. Evans, 9 Cox, C.
C. 238.; L. & C. 252 ; 9 Jur., N.
S. 184 ; 32 L. J., M. C. 38 ; 11 W.
R. 125 ; 7 L. T., N. S. 507.
A prisoner was indicted for ob-
taining by false pretences a spring-
QUALITY OF ARTICLES.
155
van. Bj false pretences, he induced
the prosecutor to ent€r into a con-
tract to build and deliver a van for
a certain sum of money, and the
pfosecutor on the faith of those
pretences built and delivered the
van in pursuance of the original
order, although the prisoner counter-
manded the order after the building
and before the delivery: — Held,
that, to bring the case within the
statate, it ii; not necessary that
the chattel should be in existence
when the false pretence is made,
hnt that the obtaining is within the
statute if the pretence is a continu-
ing one, so that the chattel is made
and delivered in pursuance of the
pretence, that the question whether
the pretence is or is not such a con-
tinrang one, is one of fact for the
jury, and that here there was evi-
dence from which the jury might
infer that it was such a continmng
one. Reg, v. Martin^ 36 L. J., M.
C.20; 1 L. R., C. C. 56; 10 Cox,
C. C. 883.
(e) As to the Quality of Artides of
Merchandise,
A simple misrepresentation of the
quality of goods is not a false pre-
tence, provided the goods are in
specie that which they are represent-
ed to be. Beg. V. Bryan^ Dears. &
B. C. G. 265 ; 3 Jur., N. S. 620 ;
26 L J., M. C. 84 ; 7 Cox, C. C.
318.
For the purpose of procuring
advances of money by way of
pJcdge, a party produced spoons to
^e prosecutors, who were pawn-
hrokerp, and falsely and fraudulent-
ly stated that " they were of the
^ quality ; that they were equal
to Elkington's A ; that the founda-
tion was of the best material ; and
that they had as much silver on
them as Elkington's A" :— Held,
that the representations being merely
^ to the quality of the articles,
were not false pretences within the
statute, as the articles delivered to
^e pawnbrokers were the same in
specie as he had professed them to
be, though of iiierior quality to
what he had stated. lb,
A. falsely pretended to a pawn-
broker that a chain was silver.
The pawnbroker lent A. lOs. on the
chain, without placing any reliance
upon the statement of A., but re-
lying on his own examination and
test. The chain was made of a
composition worth about one far-
thing an ounce : — Held, that he was
proj)erly convicted of attempting to
obtain money by false pretences,
the statement being a false pretence
within the statute. Eeg. v. Jioe-
buck, Deai-s. & B. C. C. 24 ; 2 Jur.,
N. S. 597 ; 25 L. J., M. C. 101 ; 7
Cox, C. C. 126.
A wilful misrepresentation of a
definite fact with intent to defraud,
cognisable by the senses — as where
a seller represents the quantity of
coals to be fourteen cwt., whereas
it is in fact only eight cwt., but so
packed as to look more ; or where
the seller, by manoeuvring, contrives
to pass off tasters of cheese as if ex-
tracted from the cheese offered for
sale, whereas it is not — is a false
pretence. Reg, v. Goss^ Bell, C. C.
208 ; 8 Cox, C. C. 264 ; 6 Jur., N.
S. 178 ; 29 L. J., M. C. 86 ; 8 W.
R.193; 1 L. T., N.S.337.
On the trial an indictment for
false pretences, it was proved that
the prisoner offered a chain in pledge
to a pawnbroker, and required mo-
ney to be advanced upon it, repre-
senting that it was gold. On being
tested, it turned out to be a com-
pound of brass, silver, and gold,
but the gold was very minute in
quantity: — Held, not a false pre-
tence. Req. V. Z^e, 8 Cox, C. C.
233— Chambers, C. S.
B. was in the habit of selling
baking powders, wrapped in printed
wrappers, entitled " B.'s Baking
Powders," and having his printed
signature at the end. The prisoner
got printed a quantity of wrappers
in imitation of those of B., only
leaving out B.'s signature, and sold
156
FALSE PRETENCES AND CHEATS.
spurious powders wrapped up in
these labels as B.'s powders : Held,
that the prisoner was not guilty of
forging the wrappers, or uttering
forged wrappers, though he might
be indictable for the fraud, on a
charge of obtaining money by false
pretences. Meg, v. Smithy Dears.
& B. C. C. 566; 4 Jur., N. S. 1003 ;
27 L. J., M. C. 225.
An indictment charged that the
defendant knowing and falsely pre-
tended that a horse was sound, and
that he himself was a farmer, at 0.,
negativing both pretences in the
usual wav. The defendant was
convicted, but a case reserved in
which, after stating that the various
allegations in the indictment were
proved, and that the defence was
that this was a case of giving a false
warranty, and therefore not indict-
able, the question was put, whether
the conviction could be sustained.
The court having directed ah amend-
ment, the facts proved were set out
more specifically; but it was not
stated as a fact that the defendant
knew the horse to be unsound,
though evidence was stated from
which that inference might be
drawn ; nor was it stated what
direction had been given to the
jury : — Held, that, as the case was
framed, the conviction must be
quashed; as the court, not know-
ing what direction had been given,
could not answer the question put
in the affirmative; and as it was
consistent Avith the case that the
jury might have been told that
even if the defendant did not know
that the horse was unsound, he
might be convicted upon the other
false pretence alone. Meg. v. Ke igh-
ley, Dears. & B. C. C. 145 ; 7 Cox,
C. C. 217.
A man went into a pawnbroker's
shop in tlie middle of the day, and
laid down eleven thimbles on the
counter, saying, " I want 5*. on
them" ; the pawnbroker's assistant
asked the man if they were silver,
and he said they were. The assist-
ant tested them, and found they
were not silver, and in consequence
did not give the man any money,
but sent for a policeman, and gave
him into his custody : — Held, that
the conduct of the man who pre-
sented the thimbles amounted to
an attempt to commit the statutable
misdemeanor of obtaining money
under false pretences, and by eon-
sequence that if the money had
been obtained that statutable ofi^ence
would have been complete. Eeg,
V. Ball, Car & M. 249— Mirehouse,
C. S., after consulting some of the
judges.
As to the Quality of Artides of
Merchandise,'] — A false representa-
tion that a stamp on a watch was
the hall mark of the Goldsmiths*
Company, and that the number 18,
part thereof, indicated that the
watch was made of eighteen-carat
gold, is an indictable offence, and
is not the less so because accompa-
nied by a representation that the
watch was a gold one, and some
gold was proved to have been con-
tained in its composition. i?e^.v.
Snter, 17 L. T., K S. 177 ; 16 W.
R. 141 ; 10 Cox, C. C. 577— C. C. R.
L. and W. induced the prose-
cutor to buy certain plated goods
at an auction, at which L. was act-
ing as auctioneer, for 7/., on the rep-
resentation that they were the best
silver plate, lined with gold, and
worth 20/. ; the foundation of the
goods was Britannia metal, instead
of nickel, as in the best goods,
covered with a transparent film of
silver, and they were worth only
about 30«. : — Held, that there was
no false pretence, and that an' agree-
ment between two persons to dis-
pose of these goods in the way they
were disposed of was not a conspir-
acy. Reg, V. Leviney 10 Cox, C. G.
374— Chambers, C. S.
(f) As to the Quantity or Weigh
of Artides of Merchandise,
The defendant had contracted
QUANTITY OR WEIGHT.
157
with the guardians of a poor law
union to aeliver loaves of a speci-
fied weight to any poor persons
bringing a ticket from the relieving
officer. The tickets were to be
returned bv the defendant at the
end of each week, with a statement
of the number of tickets sent back,
whereujwn he would be credited
for the amount, and the money
would be paid at the time stipu-
lated in the contract. The defend-
ant delivered to certain poor people
who brought tickets loaves of less
than the specified weight, returned
the tickets with a note of the num-
ber sent, and obtained credit in
account for the loaves so delivered,
but before the time for payment
had arrived the fraud was discover-
ed :— Held, that the delivery of a
less quantity of bread than that
contracted for was a mere private
fraud, no false weights or tokens
havmg been used, and therefore
not an indictable offence : that the
defendant was properly convicted
of attempting to obtain money, for
although he had only obtained
credit in account, and could not,
therefore, have been convicted of
the offence of actually obtaining
money by filse pretences, yet he
had done all that was depending
on himself towards the payment of
the money, and was therefore guilty
of the attempt : and that this was
a case within 7 <fc 8 Geo. 4, c. 29, s.
53, because it was an attempt to
obtam money by a false and fraud-
ulent representation of an ante-
<»ient fact : it was not a mere sale
of goods bv a false pretence of their
weight, lieff. V. Eagletonj 1 Jur.,
N. S. 940 ; 24 L. J., M. C. 158 ;
Dears. C. C. 515 ; 6 Cox, C. C. 559.
The defendant agreed with the
prosecutrix to sell and deliver to
uer a load of coals, at a certain
price per cwt. He accordingly de-
livered a quantity of coals, to his
knowledge weiglung 14 cwt. He,
however, wisely and fraudulently
^presented that the quantity he
had delivered weighed 18 cwt., and
thereby obtained the price of 18
cwt. : — Held, that he was proj^erly
convicted of the ofience of obtaining
money by false pretences. Heg. v.
Sherwood^ Dears. & B.* C. C. 251 ;
3 Jur., N. S. 547 ; 26 L. J., M. C.
217.
The defendant represented to the
prosecutor that he had done a cer-
tain quantity of work, and claimed
a certain sum as due to him in re-
spect of such work. The prose-
cutor paid him the amount claimed,
although he knew that the repre-
sentation was untrue : — Held, that
this was not an obtaining money by
means of false pretences. Reg. v.
MiUs, Dears. & B. C. C. 205 ; 3
Jur., N. S. 447 ; 26 L. J., M. C. 79.
A prisoner was convicted on an
indictment for obtaining money by
false pretences. The prosecutors
bought of the prisoner and paid him
for a quantity of coal, upon a false
representation by him that there
were 14 cwt., whereafe, in fact, there
were only 8 cwt., but so packed in
the cart in which they were as to
have the appearance of a larger
quantity : — Held, that the false re-
presentation as to the quantity of
the coal was an indictable false
pretence, and that the conviction
was right. Meg. v. Hagg^ Bell, C.
C. 215; 8 Cox, C. C. 262 ; 6 Jur.,
N. S. 178 ; 29 L. J., M. C. 86 ; 8
W. R. 193 ; 1 L. T., N. S. 337. •
If a man is selling an article by
weight, and falsely represents the
weight to be greater than it is,
and thereby obtains payment for a
quantity greater than that delivered,
he is indictable for obtaining money
by false pretences. Secus, if he is
selling the article for a lump sum,
and merely makes the false repre-
sentation as to the weight in order
to induce the purchaser to conclude
the bargain. Reg. v. Ridgway^ 3
F. & F. 838— Bramwell.
A false affirmation of the weight
of an article sold by weight, with
intent to defraud, is indictable as a
158
FALSE PRETENCES AND CHEATS.
false pretence. lieg, v. Zee, L. &
C. 418 ; 9 Cox, C. C. 460 ; 32 L. J.,
M. C. 129 ; 12 W. R. 750 ; 10 L.
T., N. S. 348.
An indictment charged, that H.
R. having in his possession a certain
weight of 28 lbs., did falsely pre-
tend to C. that a quantity of coals
which he delivered to C. weighed
16 cwt. (meaning 1792 lbs. weight),
and were worth U., and that the
weight was 56 lbs, ; by means of
which he obtained a sovereign from
C, with intent to defraud him of
part thereof, to wit, 10«. ; whereas
the coals did not weigh 1792 lbs.,
and were not worth \l. ; and where-
as the weight was not 56 lbs. ; and
whereas the coals were of the weiorht
of 896 lbs. only, and were not worth
more than 10«. ; and whereas the
weight was of 28 lbs. only. It was
objected that all the pretences, ex-
cept that respecting the weight,
were false affirmations, and that, as
to the weight, there was no allega-
tion to connect the sale of the coals
with the use of the weight. The
defendant was convicted, and the
conviction was held to be \^Tong.
Eex v. Beed, 7 C. & P. 848.
(g) By Pramises of Marriage,
An indictment will lie for fraud-
ulently obtaining goods under a
pretence of a treaty of marriage.
Anon. Lofl^, 146.
The prisoner paid his addresses
to the prosecutrix, and obtained a
promise of marriage from her, which
promise she afterwards refused to
ratify. He then threatened her
with an action, and by this means
obtained money from her. During
the whole of the transactions the
prisoner had a wife. On an indict-
ment against him for obtaining mo-
ney under false pretences, the pre-
tences laid were, first, that he was
unmarried; and secondly, that he
was entitle to bring and maintain
his action against her for a breach
of promise of marriage : — Held, per
Lord Denman, C. J., and Maule,
' J., that the fact of the prisoner
paying his addresses was sufficient
evidence for the jury on which they
might find the first pretence, tliat
he was a single man and in a con-
dition to marry; and, per Maule,
J., that there was sufficient evidence
on which to find the falseness of the
other pretence, that he was entitled
to mamtain his action for breach of
promise of marriage ; and that sadi
latter false pretence was a sufficient
false pretence within the statute.
Reg, V. Copeland, Car. & M. 516.
An indictment for obtaining mo-
ney from H. under the false pre.
tence that the prisoner intended to
marry H., and wanted the money
to pay for a wedding-suit he had
purchased, is not sufficient to sus-
tain a conviction. Reg. v. Jokfir
ston, 2 M. C. C. 254.
A., obtaining money from the
prosecutrix by falsely pretending
that he was unmarried, that be
would furnish a house witii the
monev, and would then marrv her,
mi 7 • '
is properly convicted of obtaining
money by false pretence*. Me^. v.
Jennisofi, 9 Cox, C. C. 158 ; 8 Jur.,
N. S. 442 ; L. & C. 157 ; 31 L. J^
M. C. U6; 10 W. R. 488 ; 6 L. T.,
N. S. 256.
(h) JBy means of Cheques, BUh aj
Mechange or Promissory Notes.
A person, who under a mere felse
pretence of purchasing lottery tickete,
bargains with the holder of them,
and obtains the delivery of them
by giving a draft on a banker, with
whom he had no cash, for the
amount of them, is not indictahle
for a fraud at common law ; for, in
order to constitute this offence, the
property must be obtained either
by conspiracy, or by means of a
false token as well as a false pie*
tence, and not, as in this case, by a
mere false assertion, or a bare naked
lie. Bex v. Lara, 2 Leach, C. C.
652 ; 2 East, P. C. 819, 827 ; 6 T.
R. 565.
Obtaining goods by means of a
BY MEANS OF CHEQUES, ETC.
159
cheque which the party knows will
not be paid, is an indictable offence.
Rex V. Jackson^ 3 Camp. 370 —
Bayley.
A. vas charged with falsely pre-
tending that a post-dated cheque,
drawn by himself, was a good and
genuine order for 25/., and of the
value of 25/., by means of which
he obtained a watch and a chain.
It was found by the jury that, be-
fore the completion of the sale, and
the delivery of the watch by the
prosecutor to the prisoner, the pris-
mier represented to the prosecutor
that he had an account with the
bankers on whom the cheque was
drawn, and that he had a right to
draw the cheque, though he post-
poned the date for his own conve-
^ nience, all which was false; and
that he represented that the cheque
would be paid on or after the day
of the date, but that he had no
reasonable ground to believe that it
would be paid, or that he could
provide funds to pay it. The pris-
oner was convicted, and the judges
held the conviction right. Rex v.
Parker, 7 C. & P. 825 ; 2 M. C.
C. 1.
Obtaining credit in account from
the party's own banker, by drawing
a bill of exchange on a person on
whom the party has no right to draw,
and which has no chance of being
paid, is not a false pret-ence within
7 4 8 Geo. 4, c. 29, s. 53, though
the banker pays money for him in
consequence to an extent that he
would not otherwise have done,
fee V. WaveU, 1 M. C. C. 224.
If a person, by false pretences, ob-
tains a check on a banker on un-
stamped paper, payable to D. F. J.,
and not payable to bearer, it is not
an obtaining a valuable security by
fidfie pretences. Rex v. Totes, Car.
C. L. 333 ; 1 M. C. C. 170. But see
now 21 & 22 Vict c. 20 ; 23 & 24
Vict c. 118, s. 18, and 17 <fc 18
Vict c. 83. s. 27.
But obtaining, as a loan, from the
drawer of a bill accepted by the
prisoner and negotiated by the draw-
er, part of the amount, for the pur-
pose of paying the bill, under the
false pretence that the prisoner was
prepared 'wdth the residue of the
amount, is an offence within 7 & 8
Geo. 4, c. 29, s. 53, the prisoner be-
ing shown not to be so prepared, and
not intending so to apply the money.
Rex V. Crossley, 2 M. & Rob. 17; 2
Lewin, C. C. 164 — Patteson.
The prisoner was convicted upon
an indictment, charging him with
stealing a cheque. It was proved
that he was clerk to a savings bank,
and received the cheque from a man-
ager of the bank, upon a false rep-
resentation that one of the deposit-
ors had given notice of withdrawal,
and for the purpose of handing it
over to the depositor. It was found
that, according to the usual course
of business, if a depositor could not
attend at a proper time to receive
the cheque, it was handed to the
prisoner, as the agent of the depos-
itor : — Held, that the case was one
of false pretence, and not larceny,
and that the conviction was wrong.
Rea. V. Essex, Dears. & B. C. C.371;
4 Jur., N. S. 16 ; 27 L. J., M. C. 20;
7 Cox, C. C. 384.
If an indictment for attempting
to obtain money under false preten-
ces, charges it to have been attempt-
ed by means of a paper writing pur-
porting to be an order for money,
and the instrument cannot be con-
sidered as stated in the indictment
to be such an order, it is bad. Rex
V. CaHwright, R. & R. C. C. 106.
But an indictment that A. unlaw-
fully did falsely pretend that a
printed paper was a good and valid
promissory note, is sufficient, with-
out setting out the paper. Reg. v,
Coidson, T. &. M. 332 ; 1 Den. C. C.
592 ; 14 Jur. 557; 19L. J.,M.C. 182.
Where a prisoner obtained goods
on the faith of a false statement
that a bill which he gave for the price
of them would be paid on the fol-
lowing day, he may be convicted
of obtaining goods imder false pre«
160
FLASH OR WORTHLESS BANK NOTES.
tences, though such bill on the face
of it was not due till after that day.
Reg. V. Hughes, 1 F. & F. 355—
Watson.
An indictment started that the de-
fendant falsely pretended to W.
that he was a captain in the East
Lidia Company's service, and that
a promissory note which lie " then
and there produced and delivered
to W., purporting to be made for
the payment of 21/., not saying by
whom it purported to be drawn,
nor otherwise describing it, was a
good and valuable security for 21/.;
by which false pretences he obtain-
ed," ifec: whereas the defendant
was not a captain in the company's
service; and whereas the promissory
note wliich he then' and there pro-
duced, and delivered to W., " was
not a good and valuable security
for 21/., or for any other sum": —
Held, that the indictment did not
sufficiently describe the note, or
show how it was wanting in value;
and that a conviction could not be
supported on the representation as
to the defendant's character, be-
cause the false pretences were so
connected on the record, that one
could not be separated from the
other. Reg, v. Wichham, 2 P. <fc D.
333 ; 10 A. & E. 34.
(i) By passing off flash or worth-
less Bank Notes,
The fact of uttering a counterfeit
note as a genuine one is tantamount
to a representation that it was so;
and it is a false pretence, notwith-
standing the note upon the face of
it would liave been good for nothing
in point of law, even if true. Rex
Y.Freeth.R, & R. C. C. 127.
On an indictment for delivering
in payment for a horse certain pro-
missory notes, as for good and
available promissory notes, which
the prisoner knew to be not good,
nor of any value ; the notes purport-
ed to be the notes of a country bank
which was supposed to have failed :
— ^Held, that at all events it was
necessary to prove that the noteg
were bad and of no value. Rexw
i^/tW, R. & R. C. C. 460.
Indictment for false pretences, in
passing a note of a bank that bad
stop]>ed payment as a good note.
The prisoner knew that the hank
had stopped payment ; but it ap-
peared that two only of the part,
ners or the bank had become bank-
rupt, and that the third had not:—
Held, that the prisoner must he ac-
quitted. Rex V. Spencer y 3 C. & P.
420— Gaselee.
If a person passes a note of a
country bank for 5/. payable on de-
mand as a good note, and as of the
value of 5/, knowing that the bank
is insolvent, and has stopped pay-
ment, and cannot pay tlie note in
full, he may be indicted for obtain-
ing money by false pretences. Reg,
V. Bvansl5 Jur., K S. 1361; 29 L
J., M. C. 20; 1 L. T., N. S. 108;
Bell, C. 0. 187; 8 Cox, C. C. 257.
But where the evidence shows
that the bank has paid a dividend,
the direction to the jury that there
is evidence that the note is not of
any value, will be wrong, lb.
Passing off a Hash note as a Bank
of England note on a person unable
to read, and obtaining from him in
exchange for it five pigs, of tlie val-
ue of 3/. 17s. 6rf., and 1/. 2s. U
change, is a false pretence. Reg.'v.
Coulson. T. & M. 832 ; 1 Den. C. C.
592; 14 Jur. 557; 19 L. J., ^LC
182 ; 4 Cox, C. C. 227.
The defendant fraudulently offer-
ed a 1/. Irish bank note as a note
for 5/., and obtained change as for
a 5/. note. The person from whom
the change was obtained could read,
and the note itself upon the face of
it clearly afforded the means of de-
tecting the fraud : — ^Held, that this
was obtaining money by means of
false pretences. Reg. v. J«wp,
Dears. & B. C. C. 442 ; 4 Jur., N.
S. 123; 27L. J.,M. C. 70; 7 Cox,
An indictment charing that the
defendant unlawfully did talsely jwe-
WHAT CHATTELS OR SECURITIES.
161
te&d to S. that a paper writing which
he produced to S. was a good 5/. Led-
hnTY Bank note, by means whereof
he unlawfully obtained money from
S^, with mtent to cheat and defraud
him of the same : whereas, in truth
and in fact, the paper writing was
not a good 5/. note of the Ledbury
Bank, is bad, as it does not charge
that the defendant knew that it was
not a good 5/. note of the Ledbury
Bank, and is not aided by the alle-
^tion of the intent to defraud.
%^,T,PM^wtts, 1 C. & K. 112—
Wightman.
On an indictment for obtaining
money by falsely pretending that
the promissory note of a bank that
has stopped payment by reason of
hankruptcy, was a good and valu-
ahk security for the payment of the
amount mentioned in it, and was of
that value, it is not necessary to
prove the proceedings in bankrupt-
cy. It is sufficient to prove the
tone when the bank stopped pay-
ment, and that cash could not be
obtained for the note on its being
presented for payment at the place
where it was made payable. jReg.
V. Smith, 6 Cox, C. C^ 314.
The prisoner, knowing that some
old country bank notes had been
taken by his uncle forty years be-
fore, and that the bank had stopped
payment, gave them to a man to
pass, telhng him to say, if asked
abont them, that he had taken them
fiom a man he did not know. The
^ passed the notes, and the pris-
«»r obtained value for them. It
appeared that the bankers were
nwde bankrupt : — Held, that he was
goilty of obtaining money by false
pretences. Heg, v. Dowey, 17 L.
T^ N. S. 481; 16 W. R. 844; 87
L J., M. C. 62 ; 11 Cox, C. C. 115
--C.C.R,
Held, also, that the bankruptcy
proceedings need not be proved, lo,
0) I^ respect of what Chattels or
Securities.
D(^ not being the subjects of
Fish. Dig.— 11.
larceny at common law, were not
chattels, within 7 & 8 Geo. 4, c. 29,
s. 53. Heg. v. Hobinsoti, Bell, C.
C. 34 ; 5 Jur., N. S. 203 ; 28 L. J.,
M. C. 58 ; 7 W. R. 203 ; 32 L. T.
502.
G., secretary to a burial society,
was indicted for falsely pretending
that a death had occurred, and so
obtaining from the president an or-
der on the treasurer m the following
form: "Bolton United Burial So-
ciety, No. 23. Bolton, September
Ist, 1853. Mr. A. Entwistle, treas-
urer; please to pay the bearer 2t
10*., Greenhalffh, and charge the
same to the society. Robert Lord,
Benjamin Beswick, president": —
Held, that this was a valuable secu-
rity under 7 & 8 Geo. 4, c. 29, s. 53,
as explained by sect. 6. lieg. v.
Greenhcdgh, 1 Dears. C. C. 267; 6
Cox, C. C. 257.
B. was indicted for obtaining by
false pretences from a railway com-
pany a printed ticket, with intent to
defraud the company of the same ;
the ticket enabled the prisoner to
travel free from B. to H., and was
to be given back to the company at
H. : — Held, that the ticket was a
chattel within 7 <fc 8 Geo. 4, c. 29,
s. 53, and that the attempt to de-
fraud the company of the same was
not affected by the fact of the tick-
et having to be returned at the end
of the journey. Eeg, v. BouUon, 1
Den. C. C. 508 ; 2 C. & K. 917 ; 13
Jur., 1034 ; 19 L. J., M. C. 67 ; 3
Cox, C. C. 576.
A., by means of false pretences,
engaged with the prosecutrix for
lodmng at 10s. a week. He accord-
ingly became a lodger in her house,
and a few days afterwards expressed
a wish to become a boarder. He was
then supplied with board as well as
lodging at 1/. Is, per week. He was
afterwards indicted for obtaining
goods (the board) by means of false
pretences, and convicted : — ^Held,
that the conviction could not be
supported, as the goods were sup.
phed too remotely from the false
162
FALSE PRETENCES AND CHEATS.
pretence. Reg, v. Gardner^ Dears.
& B. C. C. 40 ; 2 Jur., N. S. 598 ;
25 L. J., M. C. 100.
A conviction for obtaining a
chattel by false pretences is good,
although the chattel is not in exist-
ence at the time of the pretence be-
ing made, provided the subsequent
delivery of the chattel is directly
connected with the false pretence.
Reg. V. Martin^ 1 L. R., Cf. C. 56 ;
86 L. J., M. C. 20 ; 10 Cox, C. C.
383.
Whether or not there is such a
direct connexion is a question for
the jury. Ih,
3. Oheats,
IndictaMe,^ — If there is a plan to
cheat a man of his property, under
colour of a bet, and he parts with
the possession only to deposit it as a
stake with one of the confederates ;
the taking by such confederate is
felomous. Rix v. Robson, R. & R.
C. C. 413.
To obtain property from another
by the practice of ring-dropping is
felony, if the jury finds it was ob-
tained imder a preconceived design
to steal it. — Rex v. Patchy 1 Leach,
C. C. 238 ; 2 East, P. C. 678 ; S. P.
Rex V. Marsh, 1 Leach, C. C. 345.
A person ^ho induces another to
deliver bank notes to him, by the
Sractice of ring-dropping, on a con-
ition that if he does not restore
them in such a time, the entire val-
ue of the rin^ will belong to the
person delivermg the notes, is guil-
ty of felony ; for, although the pos-
session of the notes is parted with,
the property still remains in the
owner. Rex v. WatsoHj 2 Leach,
C. C. 640 ; 2 East, P. C. 680.
To aid and assist a person to the
jurors unknown, to obtain money by
the practice of ring-dropping, is fel-
ony, if the jury fincb that the prisoner
was confederating with the person
unknown to obtain the money by
means of this practice. Rex v.
Moore, 1 Leach, C. C. 314; 2 East,
P. C. 679.
It is an indictable offence if two
effect a cheat by means of one pro-
tending to be a merchant, and tk
other a broker, and as such baiter-
ing pretended wines for hats. Bei
V. Macarty^ 2 East, P. C. 823.
If a man in the course of his
trade, openly carried on, puts s
false mark or token upon a sporioos
article, so as to pass it off as a gen-
uine one, and the article is sold &nd
money obtained by means of tJie
false mark or token, he is guilty of
a cheat at common law. Reg, t.
doss, Dears. & B. C. C. 460 ; 3 Jur.,
N. S. 1309 ; 27 L. J., M. C. 54.
If a person knowingly sells as an
original, a copy of a picture, with
the painter^s name imitated upon
it, and by means of the imitated
name, knowingly and fraudulently
induces another to buy and pay for
the picture as a genuine work of
the artist, he may be indicted for a
cheat at common law, by means of
a false token ; but he cannot he in-
dicted for forging, or uttering the
forged name of the painter ; for tbe
crime of forgery must be commit-
ted with some document in writing,
and does not extend to the fraudu-
lent imitation of a name put on a
picture merely as a mark to identi-
ly it as the painter's work. lb.
Indictment,^ — An indictment for
such an offence must contain an
averment that it was by means of
such false mark or token that he
was enabled to pass off the article
and obtain the money. Ih, ^
In an indictment under 8^9
Vict. c. 109, s. 17, for winning mon-
ey at cards by fraud, xmlawnil de-
vice and ill practice, it is not neces-
sary to state to whom the monej
belonged. Reg, v. Moss, Dears* k
B. C. C. 104; 2 Jur., N. S. 1196;
26L.J.,M.C.9; 7 Cox, C. C. 200.
4. Inducing Persons hy Fraxtd to es-
ecute or destroy Valuable jSkh-
rities.
By 24 & .25 Vict. c. 96, & 90,
'^ wnosoever, with intent to defiaod
AMOXJNTING TO LARCENY.
163
" or injure any other person, shall by
"any false pretence frandnlently
" can« or induce any other person
" to execute, make, accept, indorse
" or destroy the whole or any part
" of any valuable security, or to
^ write, impress or affix his name,
" or the name of any other person,
" or of any company, firm or co-
"partner^p, or the seal of any
"body corporate, company or so-
"dety, upon any paper or parch-
" ment, in order that the same may
" be afterwards made or converted
" ioEto or used or dealt with as a
"valuable security, shall be guilty
" of a misdemeanor." {Preinotis en-
aetment, 21 & 22 Vict. c. 47.)
Inducing a person by a false pre-
tence to accept a bill of exchange,
was not an obtaining a valuable se-
curity by a false pretence within 7
& 8 Geo. 4, c. 29, s. 53. Heg. v.
Danger, Dears. & B. C. C. 307 ; 8
Jur.,N. S. 101 L; 26 L. J., M. C.
185 ; 7 Cox, C. C. 303.
5. Amounting to Larceny,
By 24 <fc 25 Vict. c. 96, s. 88, '' if
" upon the trial of any person in-
" dieted for the misdemeanor of
"obtaining by any false pretence
" from any other person any chat-
"tel, money or valuable security,
" with intent to defraud, it shall be
" proved that he obtained the prop-
" erty in question in any such man-
" ner as to amount in law to larceny,
" be shall not by reason thereof be
^entitled to be acquitted of such
" mi^emeanor, and no person tried
"for such misdemeanor shall be
" liable to be afterwards prosecuted
" for larceny upon the same facts."
To prevent a person indicted for
fiilse pretences from being acquit-
ted on the ground that the of-
fence is that of felony, the false pre-
tences laid must be proved, for un-
der the 24 & 25 Vict. c. 96, s. 88,
be is to be found guilty of the mis-
demeanor. Heg, V. pulmer, L. &
C. 476; 9 Cox, C. C. 492; 10 Jur.,
N. S. 684 ; 33 L. J., M. C. 171 ; 10
L. T., N. S. 580.
If a banker's clerk tells a custom-
er of the house that he has paid in
money on his account, and thereby
induces the customer to give him a
cheque for the amount, which he
receives the money for, and after-
wards makes fictitious entries in the
books, to prevent a discovery of the
transaction, it is a felonious taking
of tihe money from the banker, with-
out his consent, and not an obtaining
of it under false pretences. Rex v.
Hammon, 2 Leach, C. C. 1083 ; 4
Taunt. 304 ; R. & R. C. C. 221.
To obtain goods by false pretences
from the servant of the owner, to
whom they were delivered for the
purpose of being carried to a cus-
tomer, who had purchased them, is
a taking from the possession of the
master ; and if so taken, with a pre-
concerted design to steal them,
amounts to felony. Rex v. WilkinSy
1 Leach, C. C. 520 ; 2 East, P. C.
673.
Where a man pretending to be
the servant of a person who had
bought a chest of tea deposited at
the company's warehouse, got a re-
quest paper and permit for * the
chest, and took it away with the
assent of a person in the East India
Company's service, who had the
charge of it: — Held, to be felony.
Rex V. Hench, R. & R. C. C. 163.
A., employed in a tannery, clan-
destinely removed certain skins of
leather from the warehouse to an-
other part of the tannery, for the
purpose of delivering them to the
foreman and getting paid for them
as if they had been his own work :
— Heldj'that this did not amount to
larceny, but an attempt to commit
the misdemeanor of obtaining mon-
ey by false pretences. Reg, v. HoU
loway, 1 Den. C. C. 370 ; T. & M.
48; 3 New Sess. Cas. 410 ; 2 C. &
K. 942 ; 13 Jur. 86 ; 18 L. J., M.
C. 60.
When one servant obtains from
another, by means of a false pre-
164
FALSE PRETENCES AND CHEATS.
tence, the goods of the master,
which the latter had no authority
to deliver to him, the offence is lar-
ceny and not false pretences. Reg,
V. Robins, 6 Cox, C. C. 420 ; is
Jur. 1058.
A., having bought a watch in
London, returned it to the seller to
be regulated. B. fraudulently wrote
in the name of A. to the seller, re-
questing him to send it in a letter
to the post-office at C, and on its
arrival at C. personated A. and re-
ceived the watch: — Held, that B.
was guilty, not of obtaining by
false pretences but of larceny, in
taking the watch by fraud from the
postmaster, as the postmaster was
the mere servant of the true owner,
and if the seller had any special
property in the watch, it ceased
when he sent it through the post.
Reg. V. Kay, 7 Cox, C. C. 289 ; 3
Jur., N. S. 546.
6. Parties Indictable,
Where the pretence is conveyed
by words spoken by one defendant
in the presence of others who are
acting in concert together, they may
be all indicted jointly. Young v.
Rex (in error), ST. K. 98 ; 2 East,
P. C. 82, 883 ; 1 Leach, C. C. 505.
On an indictment for obtaining
money under false pretences, a party
who has concurred and assisted in
the fraud may be convicted as prin-
cipal, though not present at the
time of making the pretence and
obtaining the money. Reg. v. MoL
and, 2 M. C. C. 276.
7, Indictment.
Form of Averments.^ — By 24 &
25 Vict. c. 96, s. 88, " it shall be
" sufficient in any indictment for
" obtaining or attempting to obtain
" any such property — (i. e., any
" chattel, money or valuable secur-
" ity, see sect. 87 and sect. 1) — by
" false pretences to allege that the
" party accused did the act with in-
" tent to defraud, without alleging
" an intent to defraud any particu-
" lar person, and without allegii^
" any ownership of the chattd,
" money, or valuable security ; and
" on the trial of any such indictmeDt
" it shall not be necessary to prove
" an intent to defraud any particn-
" lar person, but it shall be sufficient
" to prove that the party accused
" did the act charj^ed with an intent
"to defraud." (Former provism,
14&15 Vict. c. 100,8.8.)
By 14 & 15 Vict. c. 100, s. 5 (im-
repealed), "in any indictment for
" obtaining by false pretences any
" instrument, it shall be sufficient
" to describe such instrument by
" any name or designation by whicn
" the same may be usually known,
" or by the purport thereof, without
" setting out any copy or fac-siimlc
" thereof, or otherwise describing
" the same or the value thereof."
Allegation of False Pretence.]—
An indictment for a fraud at com-
mon law, charging the false pre-
tence to have been made to one
person, and the deceit to have been
practised on a different person is
bad. Rex v. Lara, 2 Leach, C. C.
647 ; 2 East, P. C. 819, 824; 6 T.
R. 565.
An indictment on a charge of ob-
taining goods under false pretences,
is bad, if it states that the prisoner
" unlawfully, knowingly, and de-
signedW, did feloniously pretend,"
&c. Rex V. Walker, 6 (5. & P. 657.
See Rex v. Howarth, 3 Stark. 26.
An indictment for obtaining rnon*
ey under false pretences must allege
that the defendant knew the felse-
hood: "falsely and fraudulently"
is not enough. Reg. v. Hendenan,
2 M. C. C. 192 ; Car. & M. 328.
In an indictment for obtaining
money by false pretences under?
& 8 Geo. 4, c. 29, it was alleged
that the defendant " did unlawfully
falsely pretend," &c. :— Held, that
the omission of the word " know-
ingly " was no ground for arresting
the judgment. Reg. v, Bowen, 4
New Sess. Cas. 62; 13 Q. R 790;
INDICTMENT.
165
13 Jur. 1045 ; 19 L. J., M. C. 65 ;
8 Cox, C. C. 483.
An iDdictment charging the de-
fendant vnih obtaining money by
Mse pretences, is insufficient, if it
does not shew what the false pre-
tences were. Hex v. Mason, 1
Leach, C. C. 487 ; 2 East, P. C.
887 ; 2 T. R. 581.
Indictment for felsely pretending
to the prosecutor, whose mare and
gelding had strayed, that he, prison-
«, would tell him where they were,
if he would give him a sovereign
down. The prosecutor gave the
eovereign, but the prisoner refused
to tell : — Conviction held bad ; the
indictment should have stated that
he pretended he knew where they
were. 5«p V. Douglas, 1 M. C. C.
462.
A first count charged that the de-
fendant unlawfully Sid falsely pre-
tend to J. L. that he, the defendant,
was sent by W. P. for an order to go
to J. B. for a pair of shoes, by means
of which false pretence he did ob-
tain from J. B. a pair of shoes, of
the goods and chattels of J. B., with
intent to defraud J. L. of the price
of the said shoes, to wit, nine shil-
lings, of the monies of J. L. The
second count charged that he falsely
pretended to J. L., that W. P. had
said that J. L. was to give him, the
defendant, an order to go to J. B.
for a pair of shoes, by means of
which felse pretence he did obtain
from J. B., in the name of J. L., a
pair of shoes of the goods of J. B.,
with intent to defraud J. L. of the
»me;— Held, that both of these
counts were bad in arrest of judg-
fflfint, as neither of them charged a
Bnfficient false pretence. Heg, v.
TuBij, 9 C. & P. 227— Gumey. Sed
qoffre, see Beg, v. Brovm, 2 Cox,
C. C. 348 — per Patteson. -
An indictment is bad charging
that the defendant, contriving and
intendbg to cheat W., on a day
Mmed, did falsely pretend to him
that he, the defendant, then was a
captain in her Majesty's fifth regi-
ment of dragoons ; by means of
which false pretence he did obtain
of W. a valuable security, to wit,
an order for the payment of 500/., of
the value of 500/., the proj^erty of
W., with intent to cheat W . of the
same ; whereas, in truth, he was not,
at the time of making such false
pretence, a captain in her majesty's
regiment; and the defendant, at
the time of making such false pre-
tence, well knew 9iat he was not a
captain is a good indictment after
conviction and judgment ; for it
was not necessary to allege more
precisely that the defendant made
the particular pretence with the in-
tent of obtaining the security ; nor
how the particular pretence was
calculated to effect, or had effected,
the obtaining : and the tinith of the
pretence was well negatived, it ap-
pearing sufficiently that the pre-
tence was, that the defendant wa,s a
captain at the time of his making
such pretence, w^hich was the fact
denied ; and it was unnecessary to
aver expressly that the security was
unsatisfied, at any rate since 7 Geo.
4, c. 64, s. 21, the objection being
taken after verdict, and the indict-
ment following the words of the
statute creating the offence. Ham-
ikon V. Her/, (in error), 9 Q. B. 271 ;
10 Jur. 1028 ; 16 L. J., M. C. 9 ; 2
Cox, C. C. 11.
Intent to defraud,'] — An indict-
ment stated that A. did unlawfully
attempt and endeavour fraudulent-
ly, falsely and unlawfully to obtain
from the Agricultural Cattle Insur-
ance Company a large sum of mon-
ey, to wit, 22/. lOs., with intent to
cheat and defraud the company : —
Held, first, that the nature of the
attempt was not sufficiently set
forth. Meg. v. Marsh, 1 Den. C. C.
505 ; T. & M. 192 ; 3 New Sess.
Cas. 699 ; 13 Jur. 1010 ; 19 L. J.,
M. C. 12.
A., the servant of B., rendered
an account to B. of 14/. 1<. 2d, as
due from A. to his workmen, and
166
FALSE PRETENCES AND CHEATS.
B. gave A. a cheque for the amount.
All that sum was so due except 7«.,
which A. kept when he got the
cheque cashed, and paid the work-
men the residue. In one coimt of
an indictment for false pretences it
was charged that, by this false pre-
tence, A. obtained the check of B.
with intent to defraud him of the
same. It was objected that the in-
tent was only to defraud B. of a
part of the proceeds of the cheque.
A. was convicted ; and the judges
held the conviction right, ana that
the evidence supported the count.
Meg, V. Leonard y 3 Cox, C. C. 284 ;
1 Den. C. C. 304.
An indictment alleging that the
defendant falsely pretended a sum
of money, a parcel of a certain larg-
er sum, was due and owing to him
for work which he had executed for
the prosecutors, is not an allegation
of a false pretence of an existing
fact, as the allegation might be sat-
isfied by evidence of a mere matter
of opinion, either as regarded fact
or law; and therefore the indict-
ment is bad. Reg, v. Oates^ Dears.
C. C. 459 ; 1 Jur., N. S. 429 ; 24 L.
J:,M.C. 123; 6Cox, C. C. 540.
An indictment for obtaining goods
by false pretences must state the
false pretences with certainty, so
that it may clearly appear that
there was a false pretence of an ex-
isting fact. Heg, v. Heiuhaw^ L.
& G 444 ; 9 Cox, C. C. 472 ; 10
Jur., N. S. 595 ; 33 L. J., M. C.
132 ; 12 W. R. 751 ; 10 L. T., K
S. 428.
In an indictment alleging that
the prisoner pretended to A.'s re-
presentative that she was to give
him 20«. for B., and that A was go-
ing to allow B. 1 6*. per week, it
does not sufficiently appear that
there was any false pretence of an
existing fact. lb.
An indictment alleging that the
prisoners falsely pretended to A.
that some soot which they then de-
livered to A. weighed one ton and
seventeen cwt., whereas it did not
weigh one ton seventeen cwt., bat
only weighed one ton and thirteen
cwt., they well knowing the pre-
tence to be false, by means of which
false pretence they obtained frcm
A. 8«. with intent to defraud, is
good, and sufficiently describes an
mdictable false pretence. JReg, v.
Lee, L. & C. 418; 9 Cox, C. C. 460;
32 L. J., M. C. 129 ; 12 W. R. 750;
10 L. T., N. S. 348.
Upon a charge of obtaining mon-
ey by false pretences, it is sufficient
if the actual substantial pretence,
which is the main inducement to
part with the money, is alleged in
the indictment, and proved ; al-
though it may be shewn b)^ evidenoe
that other matters not laid in tiie
indictment in some measure oper-
ated upon the mind of the prosecnfc-
or as an inducement for him to part
with his money. Reg. v. Hewgx&y
Dears. C. C. 351 ; 2 C. L. R. 600;
18 Jur. 158.
An indictment stating that, by
the rules of a benefit societv, everv
free member was entitled to 5iL on
the death of his wife ; and that the
defendant falsely pretended that a
paper which he produced was gen-
uine, and contained a true account
of his wife's death and burial, and
that he further falsely pretended
that he was entitled to 5/. from the
society, by virtue of their rules, in
consequence of the death of his wife,
by means of which last-mentioned
false pretence he obtained money, is
good. Reg, v. Dmt, 1 C. & K. 249
— Rolfe.
In an indictment, the pretence
averred in some of the counts was
that the prisoner falsely pretended
that he having executed work, there
was a sum of money due and owing
to him for and on account of the
work, being parcel of a larger sum
claimed by him, whereas there was
not then due and owing to him such
money, being parcel of a larger sum*
The false pretence averred ui other
counts was that the prisoner fals?ely
pretended that there was due and
EVIDElSrCE.
167
owing to hjm the whole amount of
a sum of money for and on account
of work executed by him, whereas
there was not then due and owing
to him the whole amount of such
som of money, but only a smaller
sum :— Held, that the indictment
was had, masmuch as a false pre-
tence of an existing fact was not
sufficiently alleged, and the aver-
ments would be proved by evidence
of a mere wrongful overcharge.
%. V. Oaies, Dears. C. C. 459 ; 3
C. L R. 661 ; 1 Jur., N. S. 429 ; 24
1. J., M. C. 123.
Allegation of Ownership of Prop-
«i^.T— -An indictment for obtaining
goods by means of false pretences,
witii intent to defraud a specified
person, was bad, unless it stated
whose property the goods were, and
the de^t was not aided after ver-
dict, under 7 Greo. 4, c. 64, s. 21.
Reg. V. Martin, 3 N. & P. 472 ; 8
A. & E. 481 ; 1 W. W. & H. 380 ;
2 Jur. 515 ; S, P. Reg. v. Nwion, 8
C. A P. 196.
By 14 & 15 Vict. c. 100, s. 8, it
ahall be sufficient, in an indictment
for obtaining property by false pre-
tences, to allege that the defendant
did the act with intent to defraud,
without alleging the intent of the
defendant to be to defraud any par-
tieolar person. By s. 25, every ob-
jeetion to an inmctment for any
fi)nDal defect apparent on the face
thereof shall be taken before the
jury shall be sworn :— Held, that
sect 8 did not render it unneces-
sary, in an indictment for obtaining
m(Hiey by false pretenses, to state
whose property the money was, and
that the omissipn was not a formal
defisct within sect. 25. SiU v. Reg,
(in error), Dears. C. C. 132 ; 1 EL
& Bl. 553 ; 17 Jur. 207 ; 22 L. J.,
M.C. 41. See 24 & 25 Vict. c. 96,
8. 88, suprk, which renders an alle-
gation 01 ownership unnecessary.
An indictment for false pretences,
allegmg that the prisoner obtained
''fiom A. a cheque for the sum of
8/. 14#. 6rf. of the monies of B." is rf
sufficient allegation that the cheque
was the property of B. Reg, v.
Godfrey, Dears. & B. C. C. 426 ; 4
Jur., N. S. 146 ; 27 L. J., M. C. 151 ;
7 Cox, C. C. 392.
In an indictment framed upon 8
& 9 Vict. c. 109, 6. 17, charging
that the prisoner, by fraud in play-
ing at cards, did win from A. to 6.
a sum of money with intent to
cheat A., it is not necessary to al-
lege that the money won was the
property of A. Reg, v. Moss,
Dears. & B. C. C. 104 ; 2 Jur., K
S. 1196; 26 L. J., M. C. 9.
But an indictment for a conspir-
acy to obtain goods by false pre-
tences, not stating whose property
the goods were which it was the
object of the conspiracy to obtain,
is bad, in arrest of judgment. Reg,
V. Parkvr, 2 G. & D. 709 ; 3 Q. B.
292.
8. Evidence,
When a false pretence is contain-
ed in a letter wMch is lost, the pris-
oner may be convicted, if parol ev-
idence is given of the contents of
the letter. Rex v. Chadvnck, 6 C.
& P. 181— Tindal.
It is not necessary to prove the
whole of the pretence charged ;
proof of part of the pretence, and
that the money was obtained by
such part, is sufficient. Rex v,
mU, R. ifc R. C. C. 190.
A. was indicted for obtaining a
specific sum of money from B. by
false pretences. He was employed
by his master to take orders, but
not to receive monies, and he was
proved to have obtained the specific
sum from B. by represt'nting tnat he
was authorised by his master to re-
ceive it. Evidence of his having,
within a week afterwards, obtain^
another sum from another person
by a similar false pretence, such ob-
taining not being mentioned in the
indictment in any way, is not ad-
missible for the purpose of proving
the intent when he committed the
168
FALSE PRETENCES AND CHEATS.
acts charged in the indictment.
Meg, V. Holt, 8 Cox, C. C. 411 ; Bell,
C. C. 280 ; 30 L. J., M. C. 11 ; 6 Jur.,
K 8.1121; 9 W. R. 74; 3 L. T.,
N. S. 310.
On an indictment for obtaining
money by false pretences, if it is
consistent with the evidence for the
prosecution that the object of the
false pretence was something else
than tlie obtaining of the money,
the charge will not be sustainable.
Reg V. kone, 1 F. & F. 811— Wil-
les.
On an indictment against a de-
fendant for obtaining goods by
falsely pretending that he was of
full age, a plea of infancy in an
action brought against him is not
admissible for the purpose of prov-
ing that he was a minor. Reg. v.
Simmonds, 4 Cox, C. C. 277.
A prisoner was indicted for ob-
taining money from A. by false pre-
tences. A.'s wife, by her husband's
direction, delivered the money to
the prisoner in the absence of her
husband: — Held, that the money
was obtained from A. Reg. v.
Moselet/, L. & C. 92 ; 9 Cox, C. C.
16; 7 Jur., N. S. 1108; 31 L. J.,
M.C.24; 10 W. R. 61 ; 5 L. T., N.
S. 328.
The money of a benefit society,
whose rules were not inrolled, was
kept in a box, of which E., one of
the stewards, and two others had
keys. The prisoner, on the false
pretence that his wife was dead,
which pretence he made to the
clerk of the society in the hearing
of E., obtained from the hands of E.
out of the box 5/. : — Held, that, in
an indictment, the pretence might
be laid as made to E., and the
money, the property of " E. and
others," obtained from E. Reg. v.
Dent, 1 C. & K. 249— Rolfe and
Recorder Law.
Upon an indictment for obtaining
money by false pretences, where it
appears that statements were made
on different occasions, it is a ques-
tion for the jury whether they are so
connected as to form one continmBg
representation, Reg. v. Welmm^
Dears. C. C. 188 ; 17 Jur. 421 ; 22
L. J., M. C. 118 ; 6 Cox, C. C.
153.
A. was indicted for obtaining 200^.
by falsely pretending that he had
obtained from Lord b. the appoint-
ment of emigration agent, wliich
was worth 600/. a year, and that,
for 200/., he would give the prose-
cutor one-third of the agentship.
The prosecutor proved, that he
gave the money on this pretence,
which was false; but that, before
he parted with his money, the pris-
oner prevailed on him to execute a
deed of copartnership with him, in
which the consideration was stated
to be 200/., and in which nothing
was said of the agentship, or how
it was obtained : — ^Held, that the
putting in of this deed on the
part of the prosecution did not
exclude the parol evidence of the
false pretences ; and that, if the
deed was a part of the scheme to
effect the fraud, the prisoner should
be found guilty. Reg v. Adcmson,
1 C. & K. 192 ; 2 M. C . C. 286.
A. was charged with an attempt,
by false pretences made to " John
Baggally and others," fraudulently
to obtain goods the property of the
same parties. The evidence was,
that the representation was made to
John Baggally alone : — Held, that
there was no variance, as the words
"and others" might be rejected as
sui*plusage. Reg. v. Kealey, T. & M.
405 ; 2 Den. C. C. 69 ; 15 Jur. 230;
20 L. J., M. C. 57 ; 5 Cox, C. C.
193.
On an indictment for obtaining
money by a false pretence that a
parcel contained all letters writtea
by th^ prosecutrix to the prisoner,
and which he had promised, in con-
sideration of the money, to give up,
the counsel for the prosecution is
not bound to have the letters read,
although the counsel for the prison-
er may cross-examine as to the con-
tents of any of them, and have any
TRIAL.
169
read for that purpose. Beg, v.
Goiucci, 3 F. <fc F. 104.
An indictment alleged that the
prisoner obtained goods by falsely
pretending that a person who lived
in a large house down the street,
and had had a daughter married
some time back, had asked him to
procure the goods. The prisoner
made the statement alleged to a
shopkeeper in a village, and there-
by obtained the goods ; but the only
evidence to disprove the truth of the
statement was that of a ladv who
lived in the village, whose daughter
had been married a year previously,
who stated that she had not sent
the prisoner to theprosecutor's shop
for the goods. The jury having
found him guilty : — Held, that the
conviction might be sustained. Reg,
V. Bnmsides, 6 Jur., N. S. 1310 ; 30
L J., M. C. 42 ; 9 W. R. 37 ; 3 L.
T.,N.S.311; Bell, C. C. 282 ; 8
Cox, C. C. 370.
B. was charged in a first count
with obtaining money from the
trustees of a savings bank by false-
ly pretending that a document pre-
aented to the bank by the wife of
D. had been filled up by the au-
thority of D.; and in a second
count, he was charged with con-
spiring with the wife of D. to
cheat the bank. The evidence of
D. was received, in proof of the
first count, to show that he had
given no authority to fill up the
document or to withdraw the de-
posit. The jury found him guilty
on the first count, and not guilty
on the second count : — Held, first,
that the evidence of D. was proper-
ly received in proof of the first
count, his wife not being indicted,
althoujrh she was alleged to be one
pi the parties to the conspiracy
in the second count. Heg, v. HaUi-
day, Bell, C. C. 257 ; 29 L. J., M. C.
148;8Cox,C. C. 298.
Hehl, secondly, that finding him
gwlty on the first coimt was con-
sistent with finding him not guilty
on the second count. Ih,
Fish. Dig.— 12.
9. Trial.
Where a prisoner, in a begging
letter, which contained false pre-
tences, and was addressed to the
prosecutor, who resided in Middle-
sex, requesting him to put a letter,
containing a post-office order for
money, in a post-oflice in Mddle-
sex, to be forwarded to the prison-
er's address in Kent ; - Held, that
the venue was rightly laid in Mid-
dlesex, as the prisoner, by directing
the money order to be sent by post,
constituted the post-master in Mid-
dlesex his agent to receive it there
for him ; and that, consequently,
there was a receipt of the money
order by the prisoner within the
county of Middlesex. Reg. v. Jones^
1 Den. C. C. 551 ; 4 New Sess. Cas.
353 ; 14 Jur. 533 ; 19 L. J., M. C.
162.
The prisoner wrote and posted in
a county a letter containing a false
pretence to the prosecutor, who re-
ceived it in d borough. The pros-
ecutor in the borough posted to the
prisoner in the county a letter con-
taining the moqiy obtained by the
false pretence, and which the pris-
oner received in the county : — Held,
that under 7 Geo. 4, c. 64, s.
12, which authorises the trial in
any jurisdiction where the ofience
is begun or completed, the prisoner
might be tried for the ofience of ob-
taining the money by false pretence
at the borough quarter sessions;
part of the ofience being the mak-
ing the false pretence, and the false
pretence being made to the prose-
cutor in the borough, where the
letter containing the false pretence
was delivered to him by the post-
ofiice authorities, whom the prison-
er made his agents for that purpose.
Reg. V. Leech, Dears. C. C. 642 ; 2
Jur., N. S. 428 ; 25 L. J., M. C. 77 ;
7 Cox, C. C. 100.
One who obtains goods by false
pretences in one county, and after-
wards brings them into another
county, where he is apprehended
with them, cannot be mdicted for
170
FORCIBLE ENTRY AND DETAINER.
the offence in the county, but must
be indicted in the county where the
goods were obtained. Meg. v. Stan-
bury, 9 Cox, C. C. 94 ; L. & C. 128 ;
8 Jur., N. S. 84 ; 31 L. J., M. C. 88 ;
10 W. R. 236 ; 5 L. T., N. S. 686.
On an indictment for obtaining
money by a false pretence which
was alleged to have been by send-
ing a certain false return of fees to
the commissioners of the Treasury,
it appearing that the return was re-
ceived by them in Westminster,
with a letter dated Northampton,
and an affidavit sworn there ; and
that they, on the faith of it, drew
up a minute, which Operated as an
authority to the paymaster-general
to pay a certam amount to the pris-
oner (as compensation under 7 & 8
Vict, c. 96) at Westminster, the
venue laid being Northamptonshire:
— Held, that there was reasonable
evidence that the false representa-
tion was forwarded from North-
ampton ; that it was, if false and
fraudulent, a false pretence within
the statute ; that in effect the mon-
ey was obtained 4y means of the
minute, being a mere matter of
regulation, and not a judicial pro-
ceeding; and that, therefore, the
venue was right, and the indict-
ment was supported. Reg, v. Cooke,
1 F. & F. 64— Coleridge.
Where a misdemeanor consists
of different parts, so much of the
charge as amomits to a misdemean-
or in law must be proved in the
county in which the venue is laid.
Pearson v. M"* Growran, 3 B. <& C.
700 ; 5 D. & R. 616.
10. Receiving Property obtained
by False Pretences.
On the trial of an indictment for
receiving goods, knowing them to
have been obtained by false preten-
ces, if the jury is not satisfied that
the prisoner knew that the goods
were obtained by false pretences,
the receiver is entitled to be acquit-
ted. Reg, V. Rymes, 8 C. & K 327
—Williams.
XVI. Forcible Entey axd Db-
TAINEB.
5 R, 2, St. 1, c. 8 ; 15 R. 2, c. 2; 8
Hm. 6, c. 9 ; 31 EUz. c. 11 ; 21
Jac, 1, c. 15.
Indictment,'] — An indictment at
common law, charging the defend-
ants with having unlawfully, and
with a strong hand, ^entered the
prosecutor's mill, and expelled him
from the possession, is good. Ra
V. WUson, 8 T. R. 357.
To constitute a forcible entry, or a
forcible detainer, it is not necessary
that any one should be assaulted,
but only that the entry or the de-
tainer should be with such numben
of persons, and show of force, as is
calculated to deter the rightful own-
er from sending the persons away,
and resuming his own possesion.
Milner v. Maclean, 2 C. & P. 17-
Abbott.
Upon the trial of an indictment
for a forcible entry or a detainer,
the party dispossessed was not a
competent witness for the prosecu-
tion, before 6 & 7 Vict. c. 85, and
14 & 15 Vict. c. 99. Rex Y. WO-
Hams, 4 M. & R. 471 ; 9 B. & C.
549 ; S. P., Rex v. Beavan, 242.
On the trial of such an indict-
ment, the ^defendant cannot im-
peach the title of the party dispos-
sessed, lb.
A person having no possession or
title to premises, but fraudulently
pretending to have such title, ana
so allowed by the servant of the
true owner to enter, does not there-
by acquire possession, but may be
forcibly expelled by him on discov-
ery of the fraud ; and if in such a
case assaults are committed in con-
sequence, the question for the jury
will be, whether there has been an
excess of violence. A subsequent
attenjpt by force to re-enter, and bo
causing an affray : —Held, an indict-
able oiFence, for which the party
might be given in charge. CaX&M
V. Thrnnas, 1 F. & P. 416— Camp-
bell.
INDICTMENT.
171
Semble, Id an indictment for for-
cible entry, it is not necessary to al-
lege the prosecutor's title to the
property, it is sufficient to state the
possesaon ; but if the title is stated
it need not be proved. Reg. v.
(Md,2 Cox, C. C. 102— Rolfe.
An indictment for a forcible en-
try cannot be supported by evi-
dence of a mere trespass ; but there
must be proof of such force, or at
least such shew of force, as is calcu-
lated to prevent any resistance.
i2». V. Smyth, 5 C. & P. 201 ; 1 M.
& Rob. 156 — Tenterden.
A wife separated from her hus-
band took a house, of which the
husband, with the landlord's con-
sent, obtained possession. Semble,
that if the wife came with others,
and made a forcible entry into this
house, she might be convicted on
an indictment for forcible entry,
stating it to be the house of the hus-
band. Ih,
A constable entered a house with
a warrant in his hand, and searched
the bouse; and for such entering
and searching was indicted for for-
cible entry : — Held, that his counsel
niight. ask the witnesses for the
prosecution what the constable said,
at the time, as to whom he was
searching for. lb.
If a tenant of a house, after reg-
ular notice to quit, abandons it, and
locks it up, leaving some articles of
forniture in it, and the landlord
breaks it open and takes possession,
the tenant cannot maintain trespass ;
his remedy, if any, is by indictment
fcr forcible entry. Turner v. Mey-
nwff, 7 Moore, 574 ; 1 Bing. 158. See
RiUary v. Gay, 6 C. <fc. P. 284;
N&iAon V. Harland, 1 Scott, N. R.
474 ; 1 M. & G. 644 ; Burling v.
Itead, 11 Q. B. 904 ; PoUen v. Brew^
«■, 7 C. B., N. S. 371.
A person using l^nd as a garden
for more than twenty years, under
permission from the owner to do so,
in order to keep it from trespassers,
the owner from time to time com-
ing on the land and giving direc-
tions as to cutting the trees :-7-Held,
that he had not got a title so as to
enable him to sue a claimant under
the owner for a forcible entry. Alien
V. JEngland, 3 F. & F. 49— Erie.
The court refused to grant a man-
damus to compel magistrates to
hear a complaint and act summari-
ly under the statutes relating to
forcible entry and detainer. jDavy,
Ex parte, 2 D., N. S. 24— B. C—
Wightman.
Conviction by Ju8ticesJ\ — The 8
Hen. 6, c. 9, was intended to give a
summary jurisdiction in case of
forcible detainer, after an unlawful
entry ; and a conviction by justices
on that statute, merely statins, an
entry and a forcible detainer, is in-
sufficient. Rex V. Oakley, 4 B. <&
Ad. 307 ; 1 N. & M. 58.
The 15 R. 2, c. 2, gave justices a
summary jurisdiction to convict, on
their own view, for a forcible detain-
er after a forcible entry. Ih,
In a conviction under 8 Hen. 6, c.
9, for a forcible detainer, it must
appear on the face of the conviction
that there was an unlawful entry.
Rex V. WiUon, 5 N. & M. 164; 3
A. & E. 817 ; 1 H. & W. 387.
A conviction under a forcible de-
tainer, on the view merely of the
justices, without any evidence of an
unlawful entry, is bad, even though
information and complaint of an un-
lawful expulsion jre stated. Ih,
In a conviction for a forcible de-
tainer, under 8 Hen. 6, c. 9, where
the magistrates proceed upon view,
it is not necessary to set out the
particular facts presented to their
view. Rex v. Wilson, 3 N. & M.
753 ; 1 A. «& E. 627.
At the time of the conviction,
the defendant tendered to the jus-
tices a traverse of the force com-
plained of; and a few days after
an inquisition was held before the
magistrates, for the purpose of try-
ing the alleged force by a jury,
who, after hearing evidence ad-
duced by both parties, found the
172
FORCIBLE ENTRY AND DETAINER.
defendant guilty ; and the magis-
trates then gave restitution. A re-
turn was made to the court, on cer-
tiorari, of the conviction and inqui-
sition. The latter was then enti-
tled an inquisition, by the oaths of
twelve <fec., before &c., who Fay
upon their oaths that &c. ; stating
an unlawful entry and detainer, but
not reciting any complaint*^ made
by the prosecutor : — ^Held, that the
inquisition was founded on the con-
viction, and could not be sustained,
the conviction being void ; and that
the inquisition, even if looked at
alone, was bad, as it did not state
any complaint, nor by what author-
ity the j ury was summoned. Ih.
In order to justify a conviction by
justices, under 15 Rich. 2, c. 2, and
8 Hen. 6, c. 9, it must be proved
before them that there was, as well
an unlawful entry on the premises
as a forcible detainer. Attwood v.
Joliffe, 3 New Sess. Cas. 116— Q. B.
Where a conviction stated that
justices had convicted A. of forci-
ble detainer upon their own view, and
that afterwards a ^ complaint was
made to the justices that A. forci-
bly entered the premises, and that
notice of such complaint was given
to A., who received the notice, but
said nothing, and then went on
to allege that the justices received
evidence on oath of the unlawful
entry: — Held, that the conviction
was bad, for not. shewing that A.
had been summoned to answer the
charge of the unlawful entry, or that
he had any opportunity afforded
him of defending himself against
such charge, lb,
V. having been in possession of
a house from May to October, the
defendants called there, and, insist-
ing that V. had no title, proceed-
ed to take the keys out of the room
doors. Upon their doing so, V.
gave them into custody for stealing
the keys'; but the magistrate refus-
ed to detain them. They then re-
turned to the house, and having
procured a sledge-hammer, forced
the inner door of the hall, and
some having entered that way, and
some by a tstaircase window, over-
powering the prosecutor's opposi-
tion, and furnished with a hatchet
and other weapons, after a strag-
gle which caused a disorderly crowd
to assemble, they ejected the prose-
cutor and his servants. From the
commencement of the proceedings
till the conclusion, a female servant
of the prosecutors was in the kitch-
en:— Held, assuming the title of
the prosecutor to have been bad,
and that the defendants had acted
by the orders of those who had a
good title to the premises, that the
evidence was sufficient to support a
conviction of the defendants for a
forcible entry and riot. Reg. v.
Studd, 14 W.'R. 806 ; 14 L. T., N.
S. 633— C. C. R.
Re8titution,'\ — An averment in an
indictment for a forcible entry that
the prosecutor was seised, is suffi-
cient to found an application for a
writ of restitution ; and it needs not
be sliewn by the prosecutor that he
still continued to be seised. R&R v.
DiUon, 2 Chit. 314.
A judge at the assizes may, in
his discretion, refuse to award res-
titution, after an indictment for for-
cible entry and detainer has been
found by the grand jury, and the
court has no power to review his
decision. Reg. v. ffarland, 1 P. &
D. 93 ; 8 A. & E. 826 ; 2 Lewin,C.
C. 171; 2M.&Rob. 141.
In order to authorise a justice to
award restitution pursuant to an in-
quisition taken under 8 Hen. 6, c. 9,
for a forcible entry, the inquisition
should set forth the estate possessed
by the party in the property dispnt-
ed. Ref/. V. Bowser, 8 D. Pl C. 1 28 ;
1 W, W. & H. 845.
Where the indictment is brought
before the Queen's Bench by certio-
rari, that court is bound, upon con-
viction, to award restitution. Rex
V. WiUtams, 4 M. & R. 471 ; 9 B. <fc
C. 549.
FORGERY—STATUTES.
173
So the court is bound to award a
refititatton, as a consequence of
quashing a conviction fbr an unlaw-
fill detainer under 8 Hen. 6, c. 9,
which is bad, without inquiring in-
to the legal or equitable claim of
the respective parties. • H&c v. Wil-
»», 6N. & M. 625 ; 3 A. & E. 817 ;
2 H. & W. 225.
For the mode of proceeding to
obtain restitution on application to
a judge, after indictment found,
bat before trial, see Hex v. Ifake^ 4
M. & K. 483.
An indictment charged that the
defendants into one messuage, then
and there beings in the possession of
W. P., he W. F. then and there be-
ing also seised thereof, with force of
of arms, did enter, and W. P., from
the peaceable possession with force
and arms, did put out After a con-
▼iction of the defendants : — Held,
that this was a sufficient averment
of the present seisin of W. P. to
warrant the court in awarding: a
writ of restitution. Hex v. Hbare,
6 M. & S. 266.
XVn. FOKGEBY.
1. Siatttfet, 173.
2. What is Forgery, 174.
3. The Instrument, 176.
(a) Bank Notes, 176.
C^) BiUs of Exchange and Pro-
missory Nates, 182.
(c) Cheques, 188.
(a) Documents purporting to he
made Abroad, 189.
(e) Court Rolls, 190.
(i) Debentures, 190.
(e) Deeds or Bonds, 190.
(h) Evidential Instruments, \9\.
(i) Exchequer Bills or Bonds,
191.
Q) India Bonds, Stock or Cer-
tificates, 193.
(Is.) Marriage Licenses and Cer-
titicates, 193.
(\) Orders and Proceedings of
Mtgistrates, 193.
(jxk) Records, Judicial and Cu-
rial Process, 1 94.
fn) RegiMters of Births, Mar-
riages and Deaths, 196.
Co; Registries of Deeds, \91.
("p^ Seals of the Kingdom, 197.
fq) Stamps, 198.
(r) Trade Marks, 199.
(r) Transfer of Stock or Shares,
199.
ft; Warrants, Orders, Under-
takings, Requests and Re-
ceipts for Goods or for
Money', 201.
(n) Wills, 212.
(r) Instruments otherwise desig-
nated, 2\S.
4. Obtaining Property upon Forged
Instruments, 214.
5. Parties It.dictable, 214.
6. Indictment, 21^.
7. Allegation and Proof of Intent to
defraud, 220.
8. Jurisdiction to try, 222.
9. Election of Forgeries, 22^.
10. Uttering, 223,
11. Evidence, 225.
12. Witnesses, 229.
13. Power to seize Forged Instruments
or Implements, 229.
14. Punishment, 229.
15 Costs of Prosecution, 229.
1 StattUes.
By 24 & 25 Vict. c. 95, and 11
Geo. 4 & 1 Will. 4, c. 66, the foU
lowing statutes as to forgery are eith-
er wholly or partially repealed^ as un-
der mentioned, viz, : —
Statutes wholly repealed.^ — 5 Eliz.
c. 14; 21 Jac. l,c. 26; 7 Geo. 2, c.
22 ; 13 Geo. 3, c. 79 ; 18 Geo. 3, c.
18 ; 83 Geo. 3, c. 30 ; 37 Geo. 3, c.
122 ; 41 Geo. 3 (U, K.), c. 39 ; 41
Geo. 3, c. 57 ; 45 Geo. 3, c. 89 ; 52
Geo. 3, c. 138 ; 2 & 3 Will. 4, c.
123 ; 3 & 4 Will. 4, c. 44 ; 7 Will. 4
& 1 Vict. c. 84.
Statutes partially repealed.^ — 25
Edw. 3, Stat. 5, c. 2; {the statute
of treasons only repealed as to the
seals) ; 1 Mar. stat. 2, c. 6 ; (this
statute is wholly rejTealed by 2 Will.
4, c. 34) ;4 Will. & M. c. 4; 8 & 9
Will. 3, c. 20 ; 7 Ann. c. 21 ; 8 Geo.
1, c. 22 ; 12 Geo. 1, c. 31 ; 2 Geo. 2,
c. 25 ; 15 Geo. 2, c. 13 ; 31 Geo. 2,
c. 22 ; 4 Geo. 3, c. 25 ; 27 Geo. 3, c.
43 ; 43 Geo. 3, c. 139 ; 48 Geo. 3,
c. 1 : 52 Geo. 3, c. 146 ; 4 Geo. 4, c.
76. '
1 1 Geo. 4 & 1 Will. 4, c. 66, is
wholly repealed, except sect. 21, by
24 & 25 Vict. c. 95.
174
FORGERY.
/n/orctf.]— 24 & 25 Vict. c. 98,
" is the coDSolidatingr statute of the
" law of England and Ireland, re-
" la ting, to indictable offences by
"forgery, in force, which, by s.
" 56, commenced and took effect
"on the 1st of November, 1861,
" and, by s. 55, nothing in the statute
" contained extends to Scotland ex-
cept expressly therein provided.'*
«
2. What is Forgery.
Forgery is the false making of
an instrument, which purports on
the face of it to be good and valid
for the purposes for which it was
created, with a design to defraud
any person or persons. Hex v.
Janes, 2 East, P. C. 991— Eyre.
In forgery there need not be an
exact resemblance ; it is sufficient if
the instrument is prima facie fitted
to pass for a true instrument. Hex
V. Mtot, 1 Leach, C. C. 175, 179 ; 2
East, P. C. 951 ; S, P., Beg. v. Ma-
honey y 6 Cox, C. C. 487.
To make a mark in the name of
another person, with intent to de-
fraud the person whose name is as-
sumed, is forgery. Rex v. Dunn, 1
Leach, C. C. 57 ; 2 East, P. C. 962.
If a person authorises another to
sign a note in his name, dated at a
particular place, and made payable
at a banker's ; and the person in
whose name it is drawn represents
it to be the name of another person,
with intent to defraud, and no such
person as the note and the repre-
sentation import exists, this is forg-
erv, for it is a false makincr of an
instrument in the name of a non-
existing person. Rex v. Parkes, 2
Leach, C. C. 775 ; 2 East, P. C. 963,
992.
It is forgery to alter a document
which a party has previously forg-
ed himself; and he may be convict-
ed of forging and uttering it in the
state to which it was so altered.
Rex V. Kinder, 2 East, P. C. 856.
Where a party receives a blank
cheque, signed with directions to
fill in a certain amount, and he
fraudulently fills in a larger
amount, and devotes the proceeds
of the checli to other purposes, he
is guilty of forgerv. Reg. v. Fit
son, 2 Cox, C. C.'426 ; 1 Den. C.
C. 284; 17 L. J., M. C. 82.
So filling in a form of cheque al-
ready signed, with blanks left in it
for the sum, without authority, is
forgery. Flower v. Shaw, 2 C. A
K. 703— Wilde.
A person may be convicted of
forging with intent to defraud, al-
though the note was found in his
custody when apprehended, and
never, in fact, uttered by him. itez
V. Crocker, 2 Leach, C. C. 987; 2
N. R. 87 ; R. & R. 0. C. 97.
Forging an order from one to
charge certain goods contained in a
schedule to his account, and to ap-
propriate part of the proceeds to
the forger's own use, done with in-
tent to defraud the principal, is forg-
ery at common law, though the
fraud is not efiected. Rex v. Ward^
2 East, P. C. 861.
A person who has for many yean
been known bv a name which was
not his own, and afterwards as-
sumes his real name, and in that
name draws a bill of exchange, is
not guilty of forgery, though the
bill was drawn for the purposes of
fraud. Rex v. Aickles, 1 Leach, C.
C. 438 ; 2 East, P. C. 968.
Assuming and using a fictitious
name, though for the purposes of
concealment and fraud, will not
amount to forgery, if it was not for
that very fraua, or system of fraud,
of which the forgery forms a part.
Rex V. Bontxen, li. & R. C, C. 260.
It is not forgery fraudulently to
procui*e a party's signature to a doc-
ument, the contents of which have
been altered without his knowledge.
Reg. V. Ghadvnck, 2 M. & Rob. 545
— Rolfe.
Or forgery fraudulently to induce
a person to execute an instrument
on a misrepresentation of its con-
tents. Reg. V. Collins, 2 M. & Roh.
461.
WHAT IS FORGERY.
175
The forgery of a railway pass to
allow the bearer to pass fi-ee on a
railway, is a forgery at commoi>
law ; but the uttering of it per se is
not a nusdemeanor. Reg, v. Boult,
2 C. & K. 604— Cresswell.
Uttering a forged instrument,
the forgery of which is only a forg-
ery at common law, is no offence,
unless some fraud is actually perpe-
trated by it; and where in such a
case the indictment contained some
counts for forging the instrument
and others for uttering it, and the
defendant was acquitted on the
oounts for the forgery and convict-
ed on the counts for the uttering,
judgment was arrested. Ih,
T?) forge a certificate of service,
sobriety and good conduct at sea,
with intent to deceive and defraud,
is an offence indictable at common
law. Heff. V. Toshack, T. & M. 207 ;
1 Den. C. C. 592 ; 13 Jur. 1011 ; 4
Cox, C. C. 38.
A foi^ery must be of some docu-
ment or writing ; therefore the paint-
ing an artist's name in the corner
of a picture, in order to pass it off
as an original picture by that art-
ist is not a forgery. Reg. v. Closs,
Dears. & B. C. C. 460 ; 3 Jur., N.
S. 1309 ; 27 L. J., M. C. 54 ; 7 Cox,
C. C. 494.
Forging testimonials as to his
character, whereby he obtained a
atnation as a police constable, is a
foiverv at common law. JReg. v.
ifoaA,* Dears. & B. C. C. 550; 4
Jur.,N.S. 464 ; 27 L. J.,M. C. 205 ;
7 Cox, C. C. 503.
B. was in the habit of selling cer-
tain powders, wrapped in pnnted
ppers, describing their use, and
having a printed signature at the
end. The prisoner had a number
of wrappers printed in imitation of
B.'s, 60 as to deceive persons of or-
dinary observation, and to make
them believe them to be B.'s ; he then
fold spurious powders, wrapped up
in these papers, as B.'s powders ; and
&il this was done with intent to de-
fraud:— ^Held, that there was no
forgery. Reg, v. Smith, Dears. <fc B.
C. C. 566 ; 4 Jur., N. S. 1003 ; 27
L. J., M. C. 225.
The 11 & 12 Vict. c. 63, directs
that the votes for the election of
members of local boards of health
shall be given by means of voting
papers, and by s. 25, " if any voter
cannot write, he shall affix his
mark at the foot of a voting paper
in the presence of a witness, who
shall attest and write the name of
the voter against the same, as well
as the initials of such voter against
the name of every candidate for
whom the voter intends to vote."
The defendants, who took an act-
ive part on behalf of some of the
candidates, went to the houses of
voters who were marksmen, to as-
sist in filling up the voting pa|jers,
and having obtained the express or
implied consent of voters or mem-
bers of their families, filled up the
papers with the proper names and
marks of the voters, and put their
own names as attesting witnesses
without obtaining the actual signa-
tures or marks of the parties them-
selves : — Held, that this did not con-
stitute the offence of forgery at com-
mon law. Reg. v. ffartshom, 6
Cox, C. C. 895 — Crompton.
A man may be convicted of forg-
ing and uttering an instrument,
with intent to defraud, though there
is no person in a situation to be de-
frauded by his act. Reg. v. Nash^
2 Den. C. C. 493 ; 16 Jur. 553 ; 21
L. J., M. C. 147— Maule.
Making a false entry in what pur-
ports to be a banker's pass-book,
with intent to defraud, is a forgery.
Reg, V. Smith, L. & C. 168.
But where a paying teller of a bank
falsely and with intent to defraud,
enters in the proof book of the bank,
kept by him, a certain sum of mon-
ey, as assets of the bank, whereas
the assets do not amount to that
sum, he is not guilty of forgery by
the law of £ngland. Windsor, In
re, 6 B. & S. 522 ; 10 Cox, C. C. 118 ;
84 L. J., M. a 168 ; 11 Jur., N. S.
176
FORGERY.
807 ; 13 W. R. 653 ; 12 L. T., N. S.
307.
A person was indicted for forging
a testimonial to his character as a
schoolmaster, and the indictment
also charged him with having utter-
ed the forged document. The jury
acquitted him of the forgery, but
found him guilty of the uttering
with intent to obtain the emolu-
ments of the place of schoolmaster,
and to deceive the prosecutor : —
Held, that this finding of the jury
amounted to an offence at common
law, of which the prisoner was
properly 'convicted. Beg, v. Shar-
man. Dears. C. C. 285 ; 18 Jur. 157 ;
23 L. J., M. C. 51 ; 6 Cox, C. C. 312.
Where a person had made alter-
ations in a diploma of tlie College of
Surgeons, to make it appear to be a
document issued by the college to
him, and had hung it up in his
house, and showed it to certain per-
sons, it was found, by the case re-
served for the court, that he had no
intent, in forging, or in the uttering
and publishing, to commit any par-
ticular fraud or specific wrong to
any individtial : — Held, that he could
not be convicted of forgery or of ut-
tering. Beg, V. Hodgson, Dears. &
B. C. C. 3 ; 2 Jur., K S. 453 ; 25 L.
J., M. C. 78 ; 7 Cox, C. C. 122.
A master of a ship having made
and signed a report of a seaman's
character upon his discharge, in the
form sanctioned by the Board of
Trade, the shipping-master gave
the seaman a copy. The seaman
went to the prisoner, who, for 2s. 6c?.,
made and delivered to him a fac-
simile of the genuine copy of the re-
port, except that the letter " G.,"
which signified " good," was sub-
stituted for the letter " M., which
signified " middling" : — Held, that
the prisoner was guilty of an offence
within 17 & 18 Vict. c. 104, s. 176.
lieg. V. Wilson, Dears. & B. C. C.
558 ; 4 Jur., N. S. 670 ; 27 L. J., M.
C. 230.
A man was indicted for forging a
banker's pass book, with intent to
defraud. He was treasurer to a
trades union, which was an ill^l
society. It was contended that sucb
a society, having no legal existence,
could possess no funds, and, tliere-
fore, could not be defrauded : — Held,
that the objection of illegality was
applicable only to the summary pro-
ceedings before magistrates provid-
ed by the Friendly Societies Act ;
but did not extend to deprive the
society of its remedy by indictmenl.
Beg. V. Dodd, 18 L. T., N. S. 89-
Lush. See JReq. v. Stainery 1 L R.,
C. C. 230 ; 39 L. J., M. C. 54, and
32 ifc 33 Vict. c. 61.
3. The Instrument
The invalidity of an instrument
must appear upon the face of it, in
order to found an objection to an
indictment for forgery. Eex ?.
Macintosh, 2 East, F. C. 942 ; 2
Leach, C. C. 883.
Where the instrument forged is
legal on the face of it, the prisoner
may be legally convicted, althougb
it appears from extraneous evidence
that the forged instrument would
not have been valid in law. lieg*
V. Pike, 2 M. C. C. 70 ; 3 Jur. 27.
(a) Bank Notes.
Forging, altering or tUfering.]-^
By 24 & 25 Vict. c. 98, s. 12, " who-
" soever shall forge or alter, or
" shall offer, utter, dispose of or put
" off, knowing the same to be forged
" or altered, any note or bill of
" exchange of the Bank or England
" or of the Bank of Ireland, or of
*' any other body corporate, compa-
" ny or person carrying on the hvd-
*' ness of bankers, commonly called a
"bank-note, a bank bill of ex-
" change or a bank post bill, or
" any indorsement on or assimiment
" of any bank-note, bank bill of ex-
" change or bank post bill, with
" hitent to defraud, shall be guilty
"of felony, and, being convicted
" thereof, shall be liable, at the dis-
" cretion of the court, to be kept in
" penal servitude for life, or for any
BANK NOTES.
177
" term not less than five years (27 &
" 28 Vict. c. 47), or to be imprison-
" ed for any term not exceeding
"two years, with or without hard
" labour, and with or without soli-
"tary confinement."
By 8. 13, " whosoever, without
"lawful authority or excuse (the
" proof whereof shall lie on the par-
"ty accused), shall purchase or re-
"ceire from any other person, or
" have in his custody or possession,
"anv foreced bank-note, bank bill
" of exchange or bank post bill, or
" blank bank-note, blanK bank bill
" of exchange or blank bank post
" bill, knowing the same to be for-
"ged, shall be guilty of felony,
"and, being convicted thereof,
"shall be liable, at the discretion
"of the court, to be kept in penal
" servitude for any term not exceed-
"ing fourteen years, and not less
" than five years (27 & 28 Vict. c.
"47), or to be imprisoned for any
"term not exceeding two years,
" with or without hard labour,"
Giving to a confederate a forged
bank-note, that he may utter it, is
a disposing and putting awav there-
of. Sex V. Palmer, R. & R. C. C.
72 : 1 N. R. 96 ; 2 Leach, C. C. 978 ;
And see Brooks v. Warwick, 2 Stark,
389.
The changing the figure 2 into
the figure 5, in a bank-note (220/.
to 250/.), is forging and counter-
feiting a bank-note. Hex v. Daw-
jon, 1 Stra. 19 ; 2 East, P. C. 978.
A foTged bank-note, although
the wora " pounds" is omitted m
the body of it, and there is no water-
mark in the paper, is a counter-
feit note for the payment of money.
Sex V. JBHot, 2 East, P. C. 951.
See Sanderson v. Piper, 7 Scott,
408; 5 Bing. N. C. 425 ; 2 Am. 58;
3 Jur. 773.
So, the altering a banker's one
pound note, by substituting the
word " ten" for the word " one,"
is a forgery, although it thereby
purports to be a note for ten
Fish. Dig.— 18.
" pound," and not pounds. Sex v.
Post, R. & R. C. C. 101.
Expunging, by a certain liquor,
a notification of payment of part
of the contents of a bank bill, writ-
ten on the face of it, would sustain
an indictment on 8 & 9 Will. 3, c.
20, s. 36, for rasing out an indofse-
ment on such bill. Sex v. Bigg, 2
East, P. C. 882 ; 3 P. Wms. 419.
The counterfeit making of any
part of a genuine note, which may
give it a greater currency, is forg-
ery ; therefore, if a note is made
payable at a country banker's, or
at his banker's in London, who
fails, it is forgery to alter the name
of that London banker to the name
of another London banker, with
whom the maker makes his other
notes payable after the failure of the
first. Sex V. Treble, 2 Taunt. 328;
2 Leach, C. C. 1040; R. & R. C. C.
164.
JEngraving Plates for Notes of the
Bank of England or of Ireland, '\ —
By 24 & 25 Vict. c. 98, s. 14, " who-
soever, without lawful authority
or excuse (the proof whereof shall
lie on the party accused), shall
make or use, or knowingly have in
his custody or possession, any
frame, mould or instrument for
the making of paper -with the
words 'Bank of England' or
* Bank of Lreland,' or any part
of such words intended to resem-
ble and pass for the same, visible
' in the substance of the paper, or
' for the making of paper with
'curved or waving bar lines, or
' with the laying wire lines thereof
' in a waving or curved shape, or
' with any number, sum or amount
' expressed in a word or words in
' roman letters, visible in the sub-
' stance of the paper, or with any
' device or distmction peculiar to,
' and appearing in the substance of
* the paper used by, the Banks of
' England and L^land respectively
' for any notes, bills of excnange or
178
FORGERY.
" bank post bills of such banks re-
" spectively, or shall make, use,
" sell, expose to sale, utter or dis-
" pose of, or knowingly have in his
" custody or possession, iny paper
" whatsoever with the words * ^ank
" of England' or ' Bank of Ireland,'
" or any part of such words intend-
" ed to resemble and pass for the
" same, visible in the substance of
"the paper, or any paper with
" curved or waving bar lines, or
" with the laying wire lines thereof
" in a waving or curved shape, or
" with any number, sum or amount
" expressed in a word or words in
"roman letters, appearing visible
" in the substance of the paper, or
" with any device or distinction pe-
"culiar to, and api^earing in the
" substance of the paper used by,
" the Banks of England and Ireland
"respectively, for any notes, bills
" of exchange or bank post bills of
" such banks respectively, or shall by
" any art or contrivance cause the
" words ' Bank of England' or ' Bank
" of Ireland," or any part of such
" words intended to resemble and
" pass for the same, or any device
" or distinction peculiar, to, and ap-
" pearing in the substance of the pa-
" per used by, the Banks of Eng-
" land and Ireland respectively for
" any notes, bills of exchange or
" bank post bills of such banks re-
" spectively, to appear visible in
" the substance of any paper, or
" shall cause the numerical sum or
"amount of any bank-note, bank
" bill of exchange or bank post bill,
" blank bank-note, blank bank bill
"of exchange or blank bank post
^* bill, in a word or words in roman
"letters, to appear visible in the
"substance of the paper whereon
"the same shall be written
" or printed, shall be guilty of fel-
" ony, and, being convicted thereof,
" shall be liable, at the discretion
" of the court, to be kept in penal
" servitude for any term not exceed-
"ing fourteen years, and not less
♦* than five years (27 <fe 28 Vict. c.
iC
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it
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47), or to be imprisoned for any
term not exceeding two years,
with or without hard labour."
By 6. 15, " nothing in the last
preceding section contained sh&ll
prevent any person from issoii^
any bill of exchange or {nronusBO-
ry note having the amoant
thereof expressed m guineas, or in
a numerical figure or figures de-
noting the amount thereof in
pounSs sterling, apx)earing viable
m the substance of the paper upon
which the same shall be written
or printed, nor shall prevent any
person from making, using or sell-
ing any paper havmg waving or
curved lines or any other devices in
the nature of water-marks visible
in the substance of the paper, not
l;>eing bar lines or laying wire
lines, provided the same are not
contrived as to form the
so
groundwork or texture of the pt-
per, or to resemble the waving or
curved laying wire lines or bar
lines of the water-marks of the
paper used by the banks of Eng-
land and Ireland respectively."
JSnffravtng Bcmh Notes or BUk
an Pfate*.]— By 24 & 25 Vict c.
98, 8. 16, " whosoever, without law-
" ful authority or excuse (the proof
" whereof shall lie on the party ao-
" oused), shall engrave or in any-
" wise make upon any plate wfaat-
" soever, or upon any wood, stone
" or other material, any promissory
" note, bill of exdiange, or bank
" post bill, or part of a promiseoty
" note, bill of exchange, or bank
" post bill, purporting to be a bank-
" note, bank Dill of exchange or
" bank post bill of the Bank of fii2-
" land or of the Bank of IreiaBd,
"or of any other body corporate,
" company or person carrying on the
" business of baiikers, or to be a
" blank bank-note, blank promissny
" note, blank bill of exchange, or
" blank bank postbillof the Bankof
" England or of the Bank of Ireland,
" or of any such other body coipor-
BANK NOTES.
179
^^ ate, company or person as afore-
'' said, or to be a part of a bank-note,
" promissory note, bank bill of ex-
" change or bank post bill of the
"Bank of England or of the Bank
" of Ireland, or of any such other
" body corporate, company or per-
"soD as aforesaid, or any name,
"word or character resembling or
"apparently intended to resemble
"any subscription to any bill of ex-
" change or promissory note issued
" by the Bank of England or the
"E^nk of Ireland, or by any such
" other body corporate, company or
" person aforesaid, or shall use any
"such plate, wood, stone or other
" material, or any other instrument
" or device, for the making or print-
"ii^ any bank-note, bank bill of
"exchange or bank post bill, or
" blank bank-note, blank bank bill
" of exchange, or blank bank post
" bill, or part of a bank-note, bank
" bill of exchange or bank post bill,
" or knowingly have in his custody
" or possesEdon any such plate, wood,
"stone or other material, or any
" such instrument or device, or shall
" knowingly offer, utter, dispose of
" or put off, or have in his custody
"or pofise^on, any paper upon
" which any blank bank-note, blank
"bank bill of exchange or blank
" bank post bill of the Bank of Engr
"land or of the Bank of Ireland, or
" of any such other body corpor-
" ate, company or person as afore-
"said, or part of a bank-note, bank
" bill of exchange or bank post bill,
"or any name, word or character
" resembling or apparently intended
" to resemble any such subscription,
" shall be made or printed, shall be
" guilty of felony, and, being con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
"kept in penal servitude for any
" term not exceeding fourteen years,
" and not less than five years (27 ifc
'* 28 Vict. e. 47), or to be impris-
" oned for any term not exceeding
"two years, with or without hard
" labour, and with or without soli-
" tary confinement." (Former stat-
ute, 11 Geo. 4 & 1 Will. 4, c. 66, s.
18.]
A. cut out the centre part of a one^
pound note of a banking company,
and took the ornamental border to
an engraver, representing that he
wanted to have a plate made to this
border, intending to fill up the cen-
tre with the title of some oil or cos-
metic, of which the firm in whose
employ he represented himself to be
were the vendors. A plate was ac-
cordingly made and delivered to
him, when he was immediately ap-
prehended with the plate in his pos-
session, and was tried and convicted
upon an indictment framed upon
the 11 Geo. 4 & 1 Will. 4, c. 66, s.
18 :— Held, that by the word " note '*
is not-meant merely the obligation
or writing, but the whole paper or
thing which circulates as a note;
and therefore the border or orna-
mental margin is part of a note with-
in the meaning of the statute. Meg,
V. Keith, Deai-s. C. C. 486 ; 1 Jur.,
K S. 454 ; 24 L. J., M. C. 110 ; 3
C. L. R. 692 ; 6 Cox, C. C. 533.
Li order to ascertain whether
that which was engraved on the
plate purported to be part of the
note, extrinsic evidence is admis-
sible, and for that purpose the jury
may compare the plate with a gen-
uine note of the company. lb.
By 24 & 25 Vict. c. 98, s. 17,
" whosoever, without lawful author-
" ity or excuse (the proof whereof
" shall lie on the party accused),
" shall engrave or in anywise make
" upon any plate whatsoever, or upon
" any wood, stone or other material,
" any word, number, figure, device,
" character or ornament, the im-
" pression taken from which shall
" resemble or apparently be intend-
" ed to resemble any part of a bank-
" note, bank bill of exchange or
" bank post bill of the Bank of Eng-
" land or of the Bank of Ireland, or
" of any other body corporate, com-
" pany or person carrying on the
" business of bankers, or shall use, or
180
FORGERY.
knowingly have in his custody or
possession, any such plate, wood,
stone or other material, or any
other instrument or device for the
impressing, or making upon any
paper or other material any word,
number, figure, character or orna-
ment which shall resemble or ap-
parently be intended to resemble
any part of a bank-note, bank bill
of exchange or bank post bill of
the Bank of England or of the
Bank of lrel|ind, or of any such
other body corporate, company or
person as aforesaid, or shall know-
ingly offer, utter, dispose of or put
off, or have in his custody or pos-
session, any paper or other ma-
terial upon which there shall be
an impression of any such matter
as aforesaid, shall be guilty of fel-
ony, and, being convicted thereof,
shall be liable, at the discretion of
the court, to be kept in penal ser-
vitude for any term not exceeding
fourteen years, and not less than
five y^ars (27 & 28 Vict. c. 47),
or to be imprisoned for any term
not exceeding two years, with or
without hard labour, and with or
without solitary confinement.
Making or Imitating Bank Paper.']
— By s. 18, " whosoever, without
" lawful authority or excuse (the
" proof whereof shall lie on the party
"accused), shall make or use any
" frame, mould or instrument for
"the manufacture of paper, with
" the name or firm of any body cor-
" porate, company or person carry-
"ing on the business of bankers
" (other than and except the Banks
" of England and Ireland respect-
" ively), appearing visible in the
" substance of the paper, or know-
" ingly have in his custody or pos-
" session any such frame, mould or
" instrument, or make, use, sell, ex-
" pose to sale, utter or dispose of, or
" knowingly have in his custody or
" possession, any paper in the sub-
" stance in which the name or firm
of any such body corporate, com-
((
pany or person shall appear via-
ble, or by any art or contrivance
cause the name or firm of any
m
such body corporate, company or
person to appear visible, in the
substance of the paper upon whicb
the same shall be written or prints
ed, shall be guilty of felony, and,
being convicted thereof, shall be
liable, at the discretion of the court,
to be kept in penal servitude for
any term not exceeding fourteeD
years, and not less than five yeais
(27 & 28 Vict. c. 47), or to be
imprisoned for any term not ex-
ceeding two years, with or with-
out hard labour, and with or with-
out solitary confinement."
Engraving Plates for Foreign
Bills or Notes,] — By s. 19, " whoso-
ever,, without lawful authority or
excuse (the proof whereof shall
lie on the party accused), shall
engrave or in anywise make upon
any plate whatsoever, or ujwn any
wood, stone, or other material,
any bill of exchange, promissory
note, 'undertaking or order for
payment of money, or any part of
any bill of exchange, promissory
note, undertaking or order for
payment of money, in whatsoever
lanffua^e the same mav be ex-
pressed, and whether the same
shall or shall not be or be in-
tended to be under seal, purport-
ing to be the bill, note, undertak-
ing or order, or part of the biU, note,
undertaking or order, of any for-
eign prince, or state, or of any
minister or officer in the ser-
vice of any foreign prince or
state, or of any body corporate
or body of the like nature con-
stituted or recognized by any
foreign prince or state, or of any
person or company of persons res-
ident in any country not under
the dominion of her JVIajesty, or
shall use, or knowingly have iu
his custody or possession, any
plate, stone, wood or other ma-
terial upon which any sucli for-
BANK NOTES.
181
" dgn bill, note, undertaking or or-
" der, or any part thereof, shall be
" engraved or made, or shall know-
" inglj offer, utter, dispose of or
" pat off, or have in his custody or
" possession, any paper upon which
" any part of any such foreign bill,.
" Dote, nndertaking or order shall be
"made or printed, shall be guilty
" of felony, and, being convicted
" thereof, shall be liable, at the dis-
" cretion of the court, to be kept in
" penal servitude for any term not
" exceeding fourteen years, and not
" less than five years (27 & 28 Vict.
" c. 47), or to be imprisoned for any
"term not exceeding two years,
" with or without ham labour, and
"with or without solitary confine-
"ment." (Previous enactments^ 43
Geo. 3, c. 119, ss. 1, 2, and 11 Geo.
4&rwUL4, c. 66, s. 19.)
flaking on a glass plate a posi-
tive impression of an undertaking of
a foreign state for the payment of
money by means of photography,
without lawful authority or excuse,
is a felony within this statute. Reg,
V. Rinddi, L. <fc C. 330 ; 33 L. J.,
M. C. 28 ; 12 W. R. 87 ; 9 L. T.,
N., S. 395.
Three foreigners were indicted for
feloniously engraving and making
two parts of a promissory note of the
Emperor of Russia. The plates
were engraved by an Englishman,
who was an innocent agent in the
tnngaction. Two of the prisoners
only were present at the time when
the order was given for the engrav-
ing of the plates ; but they said
they were employed to get it done
by a third person, and there was
some evidence to connect the thyrd
prisoner with the other two in sub-
sequent parts of the transaction.
The questions left to the jury were
. —first, whether the other two, who
gave the order for the engraving,
knew the nature of the instrument ;
and secondly, whether all three con-
curred in the order given. The
judge told the jury that, in order
to find all three guilty, they must
be satisfied that they jointly em-
ployed the engraver, but that it
was not necessary that they should
all be present when the order was
given, as it would be sufticient if
one first communicated with the
other two, and that all three con-
cuiTcd in the employment of the en-
graver. The jury found the two
guilty who gave the order. The
third prisoner was acquitted. Reg,
v. Mazeau, 9 C. & P. 676— Patte-
son. »
The 11 Geo. 4 & 1 Will. 4, c. 66
s. 18, applied to plates of promis-
sory notes of persons carrying on
the business of bankers in the prov-
ince of Upper Canada. Reg, v.
Hannon, 9 C. & P. 11 ; 2 M. C. C.
77.
the 24 & 25 Vict. c. 98, s. 16,
extends to the engraving in Eng-
land without authority of notes
purporting to be notes of a banking
company carrying on business in
Scotland only, notwithstanding that
8. 55 enacts that nothing in the act
contained shall extend to Scotland.
Reg, v. Bracke7iridge^ 1 L. R., C.
' C. 133 ; 37 L. J., N. C. 86 ; 16 W.
R.816; 18 L. T., K S. 369 ; 11
Cox, C. C. 96. But see 37 L. J.,
M. C. 88, n., which throws con-
siderable doubts upon the soundness,
consistency and tenability of this
decision.
Z. was indicted for feloniously
having in his possession a litho-
graphic stone, on which was en-
graved a portion of a Dutch coup-
on. In the presence of an agent of
the Dutch consulate, and of the
jjersou who signed the coupons, and
after Z. had been told that if he
had had anything to do with litho-
graphing it would be better for him
to tell it, he made a statement : —
Held, that it was admissible against
him. Reg. v. Zetgert, 10 Cox, C. C.
555— Willes.
A second lithographic stone was
found in his lodgings, in res^jBct of
which another indictment had been
preferred against him : — ^Held, that
182
FORGERY.
it was competent for the prosecu-
tion to give evidence on the trial of
the first indictment of what was on
the second stone. lb,
(b) Bilh of Exchange and Promis-
sory Notes,
StattUe.]^By 24 & 25 Vict. c.
98, 6. 22, " whosoever shall forge or
" alter, or shall offer, utter, dispose
" of or put off, knowing the same to
'* be forged or altered, any bill of
" exchange, or ^y acceptance, in-
" dorsement or assignment of any
" bill of exchange, or any promis-
" sory note for the payment of mon-
" ey, or any indorsement or assign-
" ment of any such promissory note,
" with intent to defi-aud, shall be
" guilty of felony, and, being con-
" victed thereof, shall be liable,' at
" the discretion of the court, to be
"kept in penal servitude for life,
" or for any term not less than five
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not ex-
" ceeding two years, with or with-
" out hard labour, and with or with-
" out solitary confinement."
WTiatJ] — To constitute the forg-
ery of a bill of exchange, the instru-
ment must be a complete forging ;
an acceptance to an instrument m
the form of a bill, but without the
drawer's name, is not within the
statute. Heg, v. Butterwick^ 2 M.
& Rob. 196— Parke.
Putting an address to the name
of a drawer of a bill of exchange
while the bill is in the course of
completion, with intent to make the
acceptance appear to be that of a
different existing person, is forger
Reg, V. Blenktnsop, 1 Den.
276 ; 2 C. & K. 531 ; 17 L. J., M.
C. 62 ; 2 Cox, C. C. 420.
A document in the ordinary form
of a bill of exchange, but requiring
the drawee to pay to his own order,
and purporting to be indorsed by
the drawer, and accepted by the
drawee, cannot, in an indictment
for forgery and uttering, be treated
rii
as a bill of exchange. Reg, v. Bari-
lett, 2 M. & Rob. 362— Erskine.
An instrument drawn by A. upon
B., requiring him to pay the order
of C. a certain sum, at a certain
time, " without acceptance," is a
bill, and may be so described in an
indictment for forgery. JUg, v.
Kinnear, 2 M. & Rob. 117— Patte-
son.
A forged bill of exchange, given in
payment to one of two known part-
ners, may be laid to be forged with
intent to defraud that one, the part-
nership dealing having been con-
ducted by him only. Meg, v. Hfrn-
son, 2 M. C. C. 245 ; Car. & M. 834.
A bill of exchange made payable
to A., B., C, D. or order, execu-
trixes. The indictment charged,
that the prisoner forged on the back
of a bill a certain forged indorse*
ment, which indorsement was as
follows (naming one of the execu-
trixes):— Held, a forged indorse-
ment. Reg. V. WinierboUom, 2 C.
&K. 37; 1 Den. C. C. 41.
An indictment for utteiing a foig-
ed bill of exchange is supported by
proof of uttering an instrument in
form of a bill with a forged accept-
ance on it, though there is no per-
son named as drawee in the bill,
Reg, V. Hawhes, 2 M. C. C. 60. See
Peto V. Reynolds, 9 ExpL 410 ; A
G, (in error), 11 Exch. 418; and
Fielder v. MarskaU, 9 C. B., N. S.
606.
An instrument payable to the
order of A., and duected "at
Messrs. P. <% Co., bankers," may
be described as a bill of exchange
in an indictment for forgery- Reg,
y. Smith, 2 M. C. C. 295.
'A writing directed to A. & Ca,
requiring them to pay the bears
on demand a sum oi money, is not,
on an indictment for forgery, a bill
of exchange or an order for the
payment of money. Reg, v. Cur-
ry, 2 M. C. C. 218.
Where a prisoner fraudulently
used the name of another person
for the purposes of liis trade, and
BILLS OP EXCHANGE.
183
afterwards acoratod a Wl in that
name:— Held, that he could not be
convicted of forgery, unless when
he lirst assumed 3ie Petitions name
fae contemplated the making of
tiiat specific bill. Heg, v. Whyte,
5 Cox, C. C. 290— Alderson and
Talfourd.
The acceptance to what purported
to be a bill of exchange was K)rged.
At the time, however, this was so
forged, the document had not been
EBgned by the drawer : — Held, that
the document, not having the sig-
natare of the drawer attached to
it at the time of the acceptor's
nanie was forged, was not a bill of
exchange. Mg. v. Mopsey, 11
Cox, C. C. 143— Chambers, C. S.
Foreign.] — ^The forging and ut-
teiing a Prusman treasury note for
the payment of one dollar was
withm 43 Geo. 3, c. 139, s. 1. Bex
V. Gddgtein, 7 Moore, 1 ; 3 B. &
B. 201 ; 10 Price, 88 ; R. & R. C.
C. 473.
The 43 Geo. 3, c. 139, made to
prevent forgery in Great Britain of
xbreign securities, was not to be un-
derstood to require that such secu-
lities should possess the technical
properties required by the law of
England, it being sufficient if they
imported on the face of the whole
instroment an undertakingor order
ibrpayment of money. lb.
The forging of an indorsement
in this country, on a bill drawn
abroad on a person in this country,
and payable in this country, was
an offence within 39 Geo. 3, c. 63.
Seg. V. Roberta, 7 Cox, C. C. 422 ;
7 Ir. C. L. R. 325— C. C. R.
I^ecific ad» of Forgery.'] — ^The
forging a note wnich, for want of a
n^nature, was incomplete, was not
within the statute which made
fetging notes capital. Rex v. Pate-
www, ft. & R. C. C. 455.
A bill drawn in fictitious names,
where there are no such persons ex-
isthig as liie bill imports, may be a
forgery. Rex v. WUkee^ 2 East,
P. C. 957.
Forging a bill or a note, purport-
ing to be payable to A. B. or order,
is a complete offence, though there
is no indorsement upon it in A. B.'s
name. Rex v. JBirket, Byl. Bills,
441.
Forging a bill or a note for less
than 20*. or 5/., which does not
comply with the requisites of 17
Geo. 3, c. 80, or any other bill or
note the legislature has declared
void, is not witl}in the statutes
against forgery. Rex v. MojffbU, 1
Leach, C. C. 431 ; 2 East, P. C.
954.
On an indictment for forgii^ a
note, it appeared that it was not
payable to the bearer on demand,
or payable in money; that the
maker only promised to take it in
payment, and that the requisitions
of the 17 Geo. 3, c. 30, were not
complied with: — Held, that the
forgery of such an instrument was
not the subject of an indictment at
common law. Rex v. JBitrkej R.
& R. C. C. 496.
Where a prisoner was indicted
for forging a oill, and the bill was
payable to or order: — Held,
that there must be a payee; forg-
ing an instrument payable to
or order is not suflicient. Rex v.
RandaU, R. & R. C. C. 195.
And forging on unstamped paper
a bill or a note which requires a
stamp, is as much an offence as if
it was on stamped paper. Rex v.
Bawkeswood, 2 T. R. 606, n. ; S. P.
Rex V. Morton, 2 East, P. C. 955
Rex V. Reculist, 2 Leach, C. C. 703
2 East, P. C. 956.
It was not necessary that a note
should be negotiable, in order to be
a note within 2 Geo. 2, c. 25, so as
to be the subject of an indictment
for forging or uttering it. Rex v.
JBox, K. & R. C C. 300 ; 6 Taunt.
325.
An uidictment stating the tenor
or a note is sustained by proof that
the attestation of the witness, and
184
FORGERY.
the words " M. W., her mark,"
were adcted after tlie prisoner's sig-
nature, though on the same occa-
sion. Hex V. jDunn, 2 £ast, P. C.
976.
A promissory note for the pay-
ment of one guinea in cash, or
Bank of England note, was not a
note for the payment of money
within 2 Greo. 2, c. 25. Hex v.
WUcocka, 2 Russ. C ifc M. 457.
Discharffing a genuine indorse-
ment, and msertmg another, is
altering the indorsement, and forg-
ery, ^ex V. Birkett, R. & R. C.
C. 251.
Altering a bill from a lower to a
higher sum is forging it ; and a
person might have been indicted
on 7 Geo,^2, c. 22, for forging such
an instrument, although the statute
had the word "alter" as well as
" forge." Rex v. Teague^ R. & R.
C. C. 33 ; 2 East, P. C. 979.
If a person, having the blank
acceptance of another, is authorized
to write on it a bill of exchange for
a limited amount, and he writes a
bill of exchange for a larger
amount, with mtent to defraud
either the acceptor or any other
person; this is forgery. Rex v.
Rart, 7 C. 4 P. 652 ; 1 M. C. C.
486.
What is or is not a false making
of a bill of exchange, is a question
of law. lb,
A., being in want of 1,000^., ap-
plied to B., who drew a bill for that
amount, which A. accepted, pay-
able at three months after date.
In a few days B. came to A., and
said that he could not get the
1,000^. bill discounted, as it was
too large, and proposed that two
bills for 500/. each should be sub-
stituted; one for 500/. was drawn
by B., and accepted by A. : B., up-
on this, pretended to destroy the
1,000/. bill in A.'s presence, but did
not in fact destroy it ; on the con-
trary, he altered it from a bill at
three, to a bill at twelve months :
— ^Held, that this was forgery in B.,
with intent to defraud A. Rex v.
Atki7i9on, 7 G. & P. 669--Park
•
JBy Adoption of False or Fvii.
tiovs Names or FirmsJ] — It is fel-
ony to forge the name of a person,
although such person never existed.
Rex V. BoUana^ 1 Leach, C. C. 83;
2 East, P. C. 958.
Writing the acceptance of an ex-
isting person to a bill of exchange
without authority, or the name of
a firm or person non-existing, in ac-
ceptance of a bill, with intent to
defraud, is forgery ; and if a person
writes an acceptance in his own
name to represent a fictitious firm,
with intent to defraud, it is a forged
acceptance; for if an acceptance
represents a fictitious firm, it is the
same as if it represented a fictitious
person. Reg. v. Rogers, 8 C. & P.
629 — Bosanquet, Coleridge, and
Coltman.
If a person gets another to ac-
cept a bill in his true name, intend-
ing at the time to represent snch
name to be the name of another
person, for the purposes of fraud, it
is a forgery. Reg, v. MitcheU, 1
Den. C. C. 282.
A receipt indorsed oi\ a bill of
exchange in a fictitious name ib a
forgery, although it does not pur-
port to be the name of any parucu-
lar person. Rex v. Taylor, 1 Leach,
C. C. 215; 2 East, P. C. 690.
In order to complete the offence
of a forgery, the signature need not
be an exact fac-simile of that of
the person represented, and a slight
variance, if not such as would un-
der the circumstances put a person
on inquiry, will not suffice to take
such a forgery out of the definition
of the offence, when applied to the
falsely putting the name of an ex-
isting person to an instrument,
without authority, for the purpose
of fraud. P. M. promised to get
his mother-in-law, " C. W.'s " name
to two notes. He brought the two
notes which in the meantime he
had got his wife to sign by her
FALSE OR FICTITIOUS NAMES.
185
maiden name, " A. W.," and hand-
ed them over, saying, " Here are
the notes." On his trial for forg-
ing and uttering these notes, the
jury found him guilty, being of
opinion that, when he got his wife's
Ngnature to them, he intended to
pass tliem as the notes of his mother-
in-law : — Held, that the conviction
was right, and the question which
had been thus put to the jury was
the correct way of leaving it to
them. Reg, v. Mahony^ 6 Cox, C.
C. 487. \
Signing a money order in an as-
sumed name is forgery, if the name
was assumed to defraud the person
to whom such order was given,
though the prisoner had borne other
names unknown to the prosecutor,
who knew him only by the assumed
name. Rex v. JPVanciSy R. & R.
C. C. 209.
If, on an indictment for forging
a bill of exchange it is proved that
the prisoner assumed a false name
for the purpose of pecuniary fraud,
connected with the forgery, the
drawing, accepting, or indorsing of
such biU of exchange, in such felse
or assumed name, is forgerv. Hex
V. Peacock, R. & R. C. C. 278.
Where a name made use of bv a
pnsoner in a forged instrument is
assumed by him with the intention
of defrauding the prosecutor, it is
forgery, though the prisoner's real
name would have carried with it as
much credit as tlie assumed name.
Rex v. WhUef/y R. & R. C. C. 90.
Indorsing a bill in a fictitious
name is a forgery, though fhe bill
would have then been equally ne-
gotiable if indorsed by the prisoner
m his own name, if the fictitious
name was used in order to defraud.
Rex V. MarshoR, R. & R. C. C. 75 ;
S. P. Rex V. Taft, 1 Leach, C. C.
172 ; 2 East, P. C. 959.
If there are two persons of the
same name, but of different descrip-
tions or additions, and one signs his
name i^ith the description or addi-
tion of the other for the purpose of
Fish, Dig.— 14.
fraud, it is forgery. Hex v. Weibhj
Bayl. Bills, 432.
If a bill of exchange, payable to
A. or order, gets into the hands of
another person of the same name as
the payee, and such person, know-
ing that he was not the real person
in whose favour it was drawn, in-
dorses it, he is guilty of a forgery.
Mead v. Young, 4 T. R. 28.
A nurseryman and seedsman got
his foreman to accept two bills, the
acceptances having no addition, de-
scription, or address, and after-
wards, without the acceptor's
knowledge, he added to the direc-
tion a false address, but no descrip-
tion, and represented in one case
that the acceptance was tha,t of a
customer, and in the other case that
it was that of a seedsman, there
being in fact no such person at the
supposed false address : — Held, that
in the one case (the former) he was
not guilty of forgery of the accept-
ance, but that in the other case he
was. Beg. v. Epps, 4 F. & F. 61
— Willes.
Where a bill was drawn by the
prisoner, and addressed to " Mr. T.
b., Baize Manufacturer, Romford,"
and puq3orted to have been ac-
cepted by him, payable when due .
at No. 40, Castle-street, Holbom,
and it was proved that no such per-
son resided at Romford, and that
there was no baize manufactory
there, and that he did not live at
Castle-street ; and the prisoner pro-
duced witnesses to prove that the
acceptance was of the handwriting
of T. B,, but that he had never car-
ried on the business of a baize man-
ufacturer at Romford, nor resided
at Castle-street: — Held, that, al-
though this was a case of gross
fraud, it did not amount to forgery,
as the acceptance was written by a
pei-son of tne name of T. B. Jtiex
V. Webb. 6 Moore, 447, n. ; 3 B. &
B. 228 ; R. ifc R. C. C. 405.
A prisoner named T. Story went
to the post-office at N., and inquired
for a letter directed to " T. Story,
186
FORGERY.
post-office, Nottiiigham, to be left
till called for"; and a letter di-
rected to T. Storer, post-office, was
given him, the post- master sup-
posing that the prisoner was the
person to whom it was directed,
not noticing the difference of names ;
the letter contained a money order,
of which the prisoner obtained pay-
ment on signing his own name on
the back of it ; — ^Held, that this
was not forgery. Hex v. Story, R.
& R. C. G. 81.
If the prisoner writes another's
name across a blank stamp, on
which, after he is gone, a third per-
son, who is in league with him,
writes a bill of exchange : — Semble,
that this is not a forgery of the ac-
ceptance of a bill of exchange by
the prisoner. Heff. v. Cooke, 8 C.
& P. 582— Patteson.
Putting off a bill of exchange of
A., an existing person, as the bill
of exchange of A., a fictitious per-
son, is a felonious uttering of the
bill of a fictitious drawer. Beg. v.
NisbiU, 6 Cox, C. C. 320— Will-
iams.
Under Presinnption or Assitrnp-
tion of AidhorityJ] — If A. puts the
name of B. on a bill of exchange
as acceptor, without B.'s authority,
expecting to be able to meet it
when due, or expecting that B. will
overlook it ; this is forgery. But
if A. either had authority from B.,
or, from the course of their deal-
ings, bond, fide considered that he
had such authority, it is not for-
fery. Rex v. Forbes^ 7 C. 4 P.
24 — Coleridge; S. P, Reg. v.
Parish, 8 C. & P. 94— Abinger.
The fact, that, on three or four
previous occasions, when he had
drawn bills in that way, the party
whose name was nsed bad paid
them, even without remark or re-
monstrance, would afford fair
ground for the belief that he had
Buch authority. Reg. v. JBeard^ 8
C. & P. 143— Coleridge.
If a person, wishmg to raise
money, puts the name of anotlier
on a bill without his authority, in-
tending to pay the bill when doe,
and believing that he should be
able to do 60 ; this is forgery. lb.
So, if a person, relying on the
kindness oi another (a near rehir
tion for instance), uses his name on
a bill without authority, trnstiDg
that the person will pay it, rather
than there should be a criminal
prosecution on the subject; this
also is a forgery. lb.
If a person knows the acceptance
of a bill of exchange to be forged,
and uttered it as true, and believed
that his bankers, to whom he ut-
tered it, would advance money on
it, which they would not otherwise,
that is ample evidence of an intent
to defraud, and evidence upon
which a jury ought to act : and a
person is not the less guilty of a
forgery because he may intend
ultimately to take np the foi^
bill, and may suppose that the
party whose name is forged will be
no loser ; and the fact that the bill
has been since paid by the foiiger
will make no difference, if the rf-
fence was complete at the time of
the uttering. lieg. v. Geach, 9 C.
& P. 499— Parke.
A letter which had passed through
the post-ofl5ce before an alleged forg-
ery, is admissible for the prisonCT,
in order to shew that he supposed
he had a right to cause a name to
be signed. Reg. v. Clifford, 2 C.
&K. 202.
A letter from the prisoner to the
prosecutor left unanswered is suffic-
ient to warrant the jury in presum-
ing a bon& fide belief in an implied
authority. Reg. v. BeardaaU, 1 F.
& F. 529— Campbell.
On an indictment for forging and
uttering a bill, knowing it to be
forged, it appearing that the person
whose name was used was informed
of it at the time, and did not repu-
diate it; the jury was directed to
acquit, though he was called as a
witness, and denied any previous
FALSE OR FKTnnOUS NAMES.
187
aathorit^. JReff. v. Smithy 3 F. <fe
F. 504— Byles.
Emdence to negoJtive AuthorUy.^
If a bill purporting to be accepted
br J. K. is shewn to him, and he
declares it to be a good bill, that is
a sufficient proof that he wrote the
acceptance. Rex v. JTevey, 1 Leach,
C. C. 232.
Proof that a prisoner on uttering
a note represented the maker as
Unng at a particular place, and in
a particular line of business, the
evidence that it is not that person's
note is sufficient to prove it a forg-
ery, especially if the prisoner is the
payee of the note ; and proof that
there is another person of the name
in a different line of business will
not make it necessary for the prose-
cutor to shew that it was not that
person's note. Bex v. Hampton^ 1
k C. C. 255.
YHiere a bill purported to be ac-
cepted by " Samuel Knight, Mar-
ket-place, Birmingham " : — Held, on
an indictment for the forgery of the
acceptance, that the result of inqui-
ries made at Birmingham by the
prosecutor, who was not acquainted
with the place, was evidence for the
jury, though neither the best nor
the usual evidence given to prove
Ae non-existence of a party whose
name is used. Rex v. King^ 5 C.
k P. 123— Park and Parke.
The prisoners were indicted for
fi)rging a bill of exchange. The
bill purported to be accepted by
one George Smith, and was direct^
ed to George Smitli, draper, Birm-
ingham. "Die direction was in the
handwriting of the prisoner, White,
bat the acceptance was not. Greorge
Smith, a draper, at Birmingham,
proved that the acceptance was not
w\ that he had made personal in-
quiries, and consulted a directory,
and could not discover that there
was any other George Smith, a dra-
per, at Birmingham. Letters were
produced from White to Davis» in
which the former requested the lat-
ter to get him blanlc bills, signed
by men of straw : — Held, first, that
there was evidence to go to the jury
that the George Smith who was
called was the only draper of that
name in Birmingham ; and, second-
ly, that there was evidence for the
jury that the name, George Smith,
in the acceptance was fictitious, and
that the acceptance was not the
geniune acceptance of a man of
straw signing his real name. Reg,
V. WhUe, 2 F. & F. 554— Cock-
bum.
On an indictment for uttering a
forged cheque, it is sufiicient to dis-
prove the handwriting of the siip-
posed maker; and he need not be
called to disprove an authority to
others to use his name; circum-
stances shewing guilty knowledge
are enough. Reg, v. Hurley^ 2 M.
& Rob. 473-Cresswell.
By JProcitration,] — By 24 & 25
Vict. c. 98, s. 24, "whosoever,
" with intent to defraud, shall draw,
" make, sign, accept, or indorse any
" bill of exchange or promissory
" note, by procuration or otherwise,
" for, in the name, or on the account
" of any other person, without law-
" ful authority, or excuse, or shall
" offer, utter, dispose of, or put off,
" any such bill or note so drawn,
" made, signed, accepted, or in
" dorsed by procuration, or other-
" wise, without lawful authority or
" excuse as aforesaid, knowing the
" same to have been so drawn,
"made, signed, accepted, or in-
" dorsed as aforesaid, shall be guil-
" ty of felony."
Befo7'e this Enactmetit,'] — A pris-
oner falsely averring an authori^
to indorse a bill of exchange for T.
Tomlinson, wrote on the back of
the bill, " Per procuration Thomas
Tomlinson, Emanuel White." The
bill was thereupon discounted, and
the prisoner went off wdth the mo-
188
FORGERY.
ney : — Held, no forgery. Reg. v.
White, 1 Den. C. C. 208 ; 2 C. &
K. 404; 2 Cox, C. C. 210.
(c) Cheques,
By 24 <fc 25 Vict. c. 98, s. 25,
" whenever any cheque or draft on
" any banker shall be crossed with
" the name of a banker, or with
" two transverse lines with the words
" ' and company,' or any abbrevia-
" tion thereof, whosoever shall ob-
" literate, add to, or alter any such
" crossing, or shall offer, utter, dis-
" pose of, or put ofl' any cheoue or
" draft whereon any such oblitera-
"tion, addition, or alteration has
" been made, knowing the same to
" have been made, with intent, in
" any of the cases aforesaid, to de-
" fraud, shall be guilty of felony,
" and, being convicted thereof, shall
" be liable, at the discretion of the
" court, to be kept in penal servi-
" tude for life or for any term not
"less than five years [27 & 28
" Vict. c. 47), or to be imprisoned
"for any term not exceeding two
" years, with or without hard labour,
" and with or without solitary con-
" finement." {Previous endctment,
21 & 22 Vict. c. 79, s. 3.)
A forged cheque on the W. bank
was presented fx)r payment at the
S. bank, where the supposed draw-
er never kept cash : — Held, that
this was sufiicient evidence of an
intent to defraud the partners of
the bank, although there was no
probability of their paying the
cheque, even if it had been genuine.
Rex V. Grwjsther, 5 C. & P. 316—
Bosanquet.
A forged draft on a banker was
an order for the payment of money
within 7 Geo. 2, c. 22, although the
person whose name was forged
never kept cash with, or was known
to, the banker. Rex v. Lockett, 1
Leach, C. C. 94 ; 2 East, P. C. 940.
On an indictment for forging a
cheque purporting to be drawn by
G. A. upon Messrs. J. L. <fc Co.,
proof that no person named G. A.
keeps an account with or has any
right to draw on Messrs. J. L. A
Co., is prim& facie evidence that 6.
A. is a fictitious person. Rexy,
Rockier, 5 C. cfc P. 118— Gaaetee
and Parke.
A. gave to B., his clerk, a blank
cheque, and directed him to fill it
up with the amount of a bill of
exchange, and expenses, (for which
A. had to provide, and which
amount B. was to ascertain,) and
get the cheque cashed, and pay the
amount to Mr. W., and take up the
bill. The bill was for 156/. 9«. 9(1,
the expenses about 10s. B. filled
up the cheque with the siun of 25W.,
got it cashed, and kept the whole
amount, alleging that it was doe
to him for salary : — Held, that this
was for^ry, and that this was »
even if B. bona fide believed that
the sum of 250/. was due to liim
from A., or even if it was really due
to him. Reg. v. Wilsoti, 2 C. A
K. 527 ; 1 Den. C. C. 284 ; 17 L
J., M. C. 82 ; 2 Cox, C. C. 426.
The drawer of a cheque on a
bank which was duly honoured,
and returned to him by the bank,
afterwards altered his signature in
order to give it the appearance of
forgery, and to defraud the bank
and cause the payee of the cheque
to be charged with forgery : — ^Held,
tliat this alteration did not con^ti*.
tute a forgery. Rrittain v. Bank
of London, 3 F. & F. 465 ; 1 1 W.
R. 569 ; 8 L. T., N. S. 382— Q. R
But see 2 Russ. C. & M. 719.
In an action by payee against
makers of a cheque, m which they
pleaded that they did not make the
cheque, their signatures were adr
mitted, but it was open for the
defendants, that the defendants,
who were directors of a company
of which the plaintiff was secretary,
kept blank cneques, with their sig-
natures to them, in a book, and
that this cheque was one of thoee
filled up by the plaintiff without
authority. The judge intimated
that this would be a forgery, even
DOCUMENTS MADE ABROAD. *
189
though the whole sum the cheque
was drawn for was due to the
plaiDtiflf. The plaintiff's counsel
elected to be nonsuited^ and the
iadge ordered the cheque to be
impounded in the hands of the
associate, but would not order the
plaintiff to be taken into custody,
as no evidence of any forgery had
been given, and the whole matter
rested upon the statement of counsel
onlv. Flower v. ShaWy 2 C. <fc K.
70a-Wilde, C. J. : S, P. Wric/ht's
€a$e, 1 Lewin, C. C. 135 — Bayley.
Upon an indictment for the forg-
eiy of a cheque, dated Knighton,
and purporting to be drawn by
John Hust, it was proved that no
John Hust lived at Knighton who
would be likely to keep an account
with a banker : — Held, evidence to
go to the jury that John Hust was
a fictitious person. Meg. v. Ashby,
2 F. db F. 560— Bi-amwell.
The practice was for a majority
of the officers of a parish to draw
cheques on the treasurer of a union ;
and one of their blank cheques,
filled up for 1/. Ss. (k^., had a note
at the bottom — " Unless this cheque
is Ngued by a majority of the pansh
officers, it will not be cadied."
Tliis cheque was signed by one of
the officers while it was for 1/. Be.
6<f.; it was altered to 31. 3s. 6c?.,
and when cashed by the treasurer
had the signatures of a majority of
the officers to it : — Held, that if the
cheque was fraudulently altered
when it had only one signature to
it, this was no forgery, as it
was then an incomplete instrument.
Xeg. V. Turpin, 2 C. & K. 820—
Ratt.
Foipng and utterins an indorse-
ment on a cheque, with a view to
get it cashed by the credit of the
name, will support a conviction for
foreery, although the cheque is
vahd. Meg. v. WardeU, 3 F. & F.
82--Willes.
A cheque in which the order of
the word!s is transposed {e. g. to
"pay A. B. seventeen or bearer
poimds"), is still a cheque, and an
order for the payment of money,
for the forgery of which an indict-
ment will lie. Req. v. Boreham^ 2
Cox, C.'C. 189— Pollock.
(d) Documenta purporting to be
made Abroad.
By 24 ifc 25 Vict. c. 98, s. 40,
" where the forging or altering any
" writing or matter whatsoever, or
" the offering, uttering, disposing
" of, or putting off any writmg or
" matter whatsoever, knowing the
" same to be forged or altered, is in
" this act expressed to be an offence,
" if any person shall, in England or
" Ireland, forge or alter, or offer,
" utter, dispose of, or put off, know-
" ing tbe same to be forged or al-
" tered, any such writing or matter,
" in whatsoever place or country
" out of England and Ireland,
" whether under the dominion of
" her Majesty or not, such writing
" or matter may purport to be made
" or may have been made, and in
" whatever language the same or
" any part thereof may be expressed,
" every such jDcrson, and every per-
" son aiding, abetting, or counselU
" ing such person, shall be deemed
" to be an offender within the mean-
'^ ing of this act, and shall be punish-
" able thereby in the same manner
" as if the writing or matter had
'* purported to be made or had been
" in England or Ireland ; and if
" any pei-son sliall in England or
"Ireland forge or alter, or offer,
" utter, dispose of, or put off, know-
" ing the same to be forged or al-
" tered, any bill of exchange, or any
" promissory note for the payment
^' of money, or any indorsement on
" or assignment of any bill of ex-
" change or promissory note for the
" payment of money, or any accept-
" ance of any bill of exchange, or
" any undertaking, warrant, order,
" authority, or request for the pay-
" ment of money, or for the delivery
" or transfer of any goods or se-
" curity, or any deed, bond, or writ-
190
FORGERY.
" ing obligatory for the payment of
" money (whether such deed, bond,
"or writing obligatory shall be
" made only for the payment of
" money, or for the payment of mo-
" ney together with some other pur-
"pose), or any indorsement on or
" assignment of any such undertak-
" ing, warrant, order, authority, re-
" quest, deed, bond, or writing ob-
"bgatory, in whatsoever place or
" country out of England and Ire-
" land, whether under the dominion
" of her Majesty or not, the money
"payable or secured by such bill,
*' note, undertaking, warrant, order,
" authority, request, deed, bond,
" or writing obligatory may be or
"may purport to be payable, and
"in whatever language thfe same,
" or any part thereof, may be ex-
" pressed, and whether such bill,
" note, undertaking, warrant, order,
" authority, or request be or be not
" under seal, every such person, and
" every person aiding, abetting, or
" coimselling such person, shall be
" deemed to be an offender within
" the meaning of this act, and shall
" be punishable thereby in the same
" manner as if the money had been
" payable, or had purported to be
" payable, in England or Ireland."
{Similar to 11 Geo. 4 & 1 Will. 4,
0. 66, 8. 30.)
On an indictment for forging and
uttering a cheque or an order for
the payment of money, it appearing
that the cheque was dated as if
drawn abroad ; but there being
evidence, by comparison of hand-
writing, that it was drawn abroad,
and also evidence that he caused it
to be presented to a banker abroad,
through whom it was presented in
this country without a stamp : —
Held, that the prisoner might be
convicted of uttering it in this coun-
try, if he set it in circulation abroad.
Beg, V. Taylor, 4 F. <fc F. 511—
Pigott.
(e) C<yurt jRoUs.
By 24 & 25 Vict. c. 98, s. 80,
u
(C
u
((
u
«
u
u
((
((
it
u
u
6i
(C
u
u
u
a
u
it,
it
a
a
a
li
a
it
((
a
it
it
it
a
it
it
' whosoever shall forge or alter, or
' shall offer, utter, dispose of, or
' put off, knowing the same to be
* forged or altered, any court roll,
* or copy of any court roll, relating
* to any copyhold or customary
' estate, with intent to defraud, shsD
* be guilty of felony."
(f) Debentures.
By 24 & 25 Vict. c. 98, s. 26,
whosoever shall fraudulently fbree
or alter, or shall offer, utter, duj-
pose of, or put off, knowing tbe
the same to be forged or ^od-
ulently altered, any debenture is*
sued under any lawful authority
whatsoever, either within her Maj-
esty's dominions or elsewhere, ^aJl
be guilty of felony, and, )mng
convicted thereof, shall be liable,
at the discretion of the court, to
be kept in penal servitude for My
term not exceeding fourteen veare,
and not less than live years (27 A
28 Vict. c. 47), or to beimprbon-
ed for any term not exceeding two
years, with or without ham la-
bour, and with or without solita-
ry confinement."
(g) Deeds or Bonds,
By 24 & 25 Vict. c. 98, s. 20,
whosoever, with intent to defraud,
shall forge or alter, or shall offer,
utter, dispose of, or put off, knoir-
ing the same to be forged or al-
tered, any deed, or any bond or
writing obligatory, or any assign-
ment at law or in equity of any
such bond or writing obligatory,
or shall forge any name handinit-
ing, or signature purporting to be
the name, handwriting, or signa^
ture of a witness attesting the
execution of any deed, bond, or
writing obligatory, or shall offer,
utter, dispose of, or put off any
deed, bond or writing obligatory
having thereon any such forged
name, handwriting, or signatore,
knowing the same to be forged,
shall be guilty of felony, and, be-
ing convicted thereof, ^all belia-
EXCHEQUER BILLS OR BOND^
191
^* ble, at the discretion of the court,
" to be kept in penal servitude for
" life, or for any term not less than
" 1^ye years (27 & 28 Vict. c. 47), or
" to be imprisoned for any term not
" exceeding two years, with or with-
^ oat hard labour, and with or with-
*' out solitary confinement." (Far-
mer pravUian, 11 Greo. 4 & 1 Will.
4, c. 66, B. 10.)
On an indictment for forgery of
an administration bond on adminis-
tration granted of the effects of S.,
it was objected, that 22 & 23 Car.
2,c. 10, requiring the bond to be
given by the party to whom admin-
istration was granted, and not by
the party that was entitled to ad-
ministration, no forgery was made
out; but the bond was a good bond
within the statute, having been giv-
en by the party to whom, in fact,
adoimistration was granted: — ^Held,
that this was not a good objection.
Seg. V. Barber, 1 C. & K. 434—
Gumey, Williams and Maule.
Forging a deed was within 2 Greo.
2, c. 25, s. 1 , although there may have
been subsequent directory provisions
by other statutes, that mstruments
for the same purpose as such forged
deed shall be in a particular form, or
shall comply with certain requisites,
and the foreed deed was not in that
form, and did not comply with those
reqaintes ; for the directory provis-
ions do not make the deed (although
out of the form prescribed, and with-
ont the requisites) wholly void. JR&n
T.Z^wi, R. 4fcR.C. C. 255.
A deed really executed by the
parties l>etween whom it purports
to be made, but ante-dated with in-
tent fraudulently to defeat a prior
deed, is a forgery. Meg. v. Ritson,
18 W. R. 73 ; 21 L. T., N. S. 437 ;
89 L. J., M. C. 10 ; 1 L. R., C. C.
200.
A. bv deed, bearing date on the
7th of May, 1868, conveyed on that
day certain lands to B. in fee. Sub-
sequently, on the 26th of April,
1869, G. produced a deed, bearing
date the 12th of March, 1868, pur-
porting to be a demise of the same
land for a long term of years, as
from the 25 of March, 1868, from
A. to C. The alleged lease was ex-
ecuted after A.*s conveyance to B.,
and ante-dated for the purpose of
defrauding B. :— Held, that A. and
C. were guilty of forgery. lb,
(h) Evidential Instruments.
By 24 & 25 Vict. c. 98, s. 29,
" whosoever shall forge or fraudu-
" lently alter, or shall offer, utter,
" dispose of, or put off, knowing the
" same to be forged or fraudulently
" altered, any instrument, whether
" written or printed, or partly writ-
" ten and partly printed, which is or
" shall be made evidence by any
'^ act passed or to be passed, and
" for which offence no punishment
" is herein provided, shall be guilty
" of felony, and, being convicted
'' thereof, shall be liable, at the dis-
" cretion of the court, to be kept in
" penal servitude for any term not
" exceeding seven years, and not
" less than live years (27 & 28 Vict.
" c. 47), or to be imprisoned for any
**term not exceeding two years,
" with or without hard labour, and
" with or without solitary confine-
" ment."
An indictment stating that the
prisoner forged a certain paper in-
strument, partly printed and partly
written, in the words and hgures
following, that is to say, &c., was
bad in form, as it did not state what
the instrument was in re8i)ect of
which the forgery was committed,
nor how the party signing it had au-
thority to sign it. Hex v. Wilcox, R.
& R. C. C. 50.
(i) Exchequer Bills or Bonds.
By 24 & 25 Vict. c. 98, s. 8, " who-
soever shall forge or alter, or shall
offer, utter, dispose of, or put off,
knowing the same to be forged or
altered, any Exchequer bill or Ex-
chequer bond or Exchequer de-
benture, or any indorsement on or
assignment of any Exchequer bill
192
FORGERY.
" or Exchequer bond or Exchequer
" debenture, or any receipt or cer-
" tificate for interest accruing; there-
"on, with intent to defraud, shall
"be guilty of felony, and, being
" convicted thereof, shall be liable,
" at the discretion of the court, to
" be kept in penal servitude for life,
" or for any term not less than five
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not ex-
" ceeding two years, with or with-
" out hard labour, and with or with-
" out solitary confinement."
By s. 9, " whosoever, without law-
" ful authority or excuse (the proof
" whereof shall lie on the party ac-
" cused), shall make, or cause or pro-
" cure to be made, or shall aid or as-
" sist in making, or shall knowingly
" have in his custody or possession,
" any frame, mould, or instniment
" having therein any words, letters,
" figures, marks, lines, or devices pe-
" culiar to find appearing in the sub-
" stance of any paper provided or to
" be provided or used for Exchequer
" bills or Exchequer bonds or Ex-
chequer debentures, or any ma-
chinery for working any threads
into the substance of any paper,
" or any such thread, and intended
" to imitate such words, letters, fig-
" ures, marks, lines, threads, or de-
" vices, or any plate peculiarly
"employed for printing such Ex-
" chequer bills, bonds, or deben-
" tures, or any die or any seal pe-
" cuUarly used for preparing any
" such plate, or for sealing such Ex-
" chequer bills, bonds, or debentures,
" or any plate, die, or seal intended
" to imitate any such plate, die, or
" seal as aforesaid, shall be guilty
"of felony, and, being convicted
" thereof, shall be liable, at the dis-
" cretion of the court, to be kept
"in penal servitude for any term
" not exceeding seven years and not
" less than five years (27 & 28 Vict.
" c. 47), or to be imprisoned for any
" term not exceeding two years,
" with or without hard labour, and
(C
" with or without solitary confine-
" ment."
By s. 10, " whosoever, witboot
"lawful authority or excuse (the
" proof whereof shall lie on the
"party accused), shall make, or
" cause or procure to be made, or
" aid or assist in making, any paper
" in the substance of which shaU ap-
"pear any words, letters, figures,
" marks, Unes, threads or other de-
" vices peculiar to and appearing in
" the substance of any paper provid-
" ed or to be provided or used for
" such Exchequer bills, bonds^ or
" debentures, or any part of such
" words, letters, figures, marks,
" lines, threads, or other devices,
" and intended to imitate the same,
" or shall knowingly have in his en*.
" tody or possession any paper what-
" soever m the substance whereof
" shall appear any such words, let-
" ters, figures, marks, lines, threads.
" or devices, as aforesaid, or any
" parts of such words, letters, fig-
"ures, marks, lines, threads, or
" other devices, and intended to im-
" itate the same, or shall cause or ae-
" sist in causing any such words, let-
" ters, figures, marks, lines, threads,
" or devices as aforesaid, or any
"part of such words, letters, fig-
" ures, marks, lines, threads, or other
" devices, and intended to imitate
" the same, to appear in the sub-
" stance of any paper whatever, or
" shall take or assist in taking any
" impression of any such plate, die,
" or seal as in the last preceding
" section mentioned, shall be guilty
"of felony, and, being convicted
" thereof, shall be liable, at the dis-
" cretion of the court, to be kept in
" penal servitude for any term not
"exceeding seven years, and not
" less than five years (27 & 28
"Vict. c. 47), or to be imprisoned
" for any term not exceeding tvo
" years, with or without hard la-
" bour, and with or without solitary
" confinement."
Bv s. 11 , "whosoever without law-
ORDERS OF MAGISTRATES. "
193
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ful aathority or excuse (the proof
whereof shall lie on the party ac-
cused), shall purchase or receive,
or knowingly have in his custody
or possession, any paper manufac-
tured and provided by or under
the directions of the Commission-
ers of Inland Revenue or Com-
missioners of her Majesty's Treas-
ury, for the purpose of being used
as Exchequer bills or Exchequer
bonds or Exchequer debentures,
before such paper shall have been
duly stamped, signed, and issued
for public use, or any such plate,
die, or seal as in the last two pre-
ceding sections mentioned, shall
be guilty of a misdemeanor, and,
being convicted thereof, shall be
liable, at the discretion of the
court, to be imprisoned for any
term not exceeding three years,
with or without hard labour."
(j) India BandSy Stock, or Certifi-
cates,
By 24 & 25 Vict. c. 98, s. 7, " who-
" soever shall forge or alter, or shall
" offer, utter, dispose of, or put off,
"knowing the same to be forged
"or altered, any bond, commonly
" called an East India bond, or any
" bond, debenture, or security issued
'^or made under the authority of
" any act passed or to be passed re-
"lating to the East Indies, or any
"indorsement on or assignment of
" any such bond, or debenture, or
"security, with intent to defraud,
" shall be guilty of felony, and, be-
** ing convicted thereof, shall be lia-
" ble, at the discretion of the court,
" to be kept in penal servitude for
" life, or for any term not less than
"five years (27 & 28 Vict. c. 47),
" or to be imprisoned for any term
" not exceeding two years, with or
" without hard labour, and with or
"without solitary confinement."
2o & 26 Vict, c, 7, s. 14, " makes
" it felony to forge or utter certifi-
"cates of India stock, transferable
" at the Bank of England or of Ire-
" bind."
By 26 & 27 Vict. c. 78, s. 13,
" forging India stock certificates or
" coupons is a felony."
By 8. 14, " the personation of own-
" ers of India stock certificates or
" coupons is a felony."
By s. 15, " engraving upon plates
" of India stock certificates or cou-
" pons is a ffelony."
(k) Marriage Licences or Certificates,
By 24 & 25 Vict. c. 98, s. 35,
"whosoever shall forge or fraudu-
" ently alter any licence of or cer-
" tificate for marriage, or shall offer,
" utter, dispose of, or put off any
" such licence or certificate, know-
" ing the same to be forged or fraud-
" ulently altered, shall be guilty of
" felony, and, being convicted there-
" of, shall be liable, at the discretion
" of the court, to be kept in penal
" servitude for any tenn not exceed-
'* ing seven years, and not less than
" five years (27 & 28 Vict. c. 47),
" or to be imprisoned for any term
" not exceeding two years, with or
" without hard labour, and with or
" without solitary confinement."
(Former provision^ 11 Geo. 4 & 1
Will. 4, c. 66, s. 20.)
If A. gives to B. a forged certifi-
cate of a pretended marriage be-
tween himself and B., in order that
B. may give it to a third party, A.
is not guilty of an uttering. Reg,
V. Heywood\ 2 C. & K. 352— Alder-
son.
(1) Orders and Proceedings of Mag-
istrates.
By 24 & 25 Vict. c. 98, s. 32,
" whosoever, with intent to defraud,
" shall forge or alter, or shall offer,
" utter, dispose of, or put off, know-
"ing the same to be forged or al-
"tered, any summons, conviction,
"order, or warrant of any justice
" of the peace, or any recognizance
" purporting to have been entered
" into before any justice of the
" peace, or other oflcicer authorised
" to take the same, or any examin-
" ation, deposition, afl5 davit, aflarm-
194
FORGERY.
** ation, or solemn declaration, tak-
*^ eii or made before any justice of
*' the i^eace, shall be guilty of fel-
" ony, and, being convicted thereof,
*' shall be liable, at the discretion of
" the court, to be kept in penal serv-
** itude for the term of five years
*« (27 & 28 Vict. c. 47), or to be im-
*' prisoned for any term not exceed-
*' ing two years, with or without
*' hard labour, and with or without
** solitary confinement."
Forging a magistrate's order to
pay money under hand only was
not a capital oftence, as the 17 Geo.
2, c. 5, under which the magistrate
had power to make it, required it
to be under hand and seal. Hex v.
RmhwoHh, R. & R. C. C. 317 ; 1
Stark. 396.
And so, if it was addressed to
the treasurer of the county, instead
of the high constable, the magis-
trate having no power by the act
to make it upon the former. Ih,
The 7 Geo.. 2, c. 22, was not con-
fined to commercial transactions,
but would have applied to an order
made by a justice to a high consta-
ble or treasurer to pay a reward.
Bex V. Graham, 2 East, P. C. 945.
An order was made under 48 Geo.
5, c. 75, s. 6, purjx)rting on the face
of it to be an order of a magistrate
on the treasurer of a county, to al-
low one J. C. the ex|3enses of bury-
ing a dead body cast on shore : —
Held, that this was a forgery, al-
though there was no such magis-
trate in the countv of the name of
the person who signed the order,
and although J. C. was not tli^rein
stated to be a parish ofiicer, or that
the expenses incurred were necessa-
ry, ilex V. Froude, 3 Moore, 645 ;
7 Price, 609 ; 1 B. & B. 300 ; R. &
R. C. C. 389.
Forging an order from a magis-
trate to a gaoler to discharge a
prisoner as upon bail having been
given, is forgery at common law.
Rex V. Harris, 1 M. C. 0. 393 ; 6
C. & P. 129.
(m) Records, Judicial and Curid
.Process
By 24 & 25 Vict! c. 98, s. 27,
" whosoever shall forge or jfntuda-
" lently alter, or sbaU offer, utter,
"dispose of, or put off, knowii^
" the same to be forged or fraudo-
" lently altered, any record, writ,
" return, panel, process, rule, or-
"der, warrant, interrogatory, de-
" position, afiidavit, afiirmation, Te-
" cognizance, cognovit actionem, or
" warrant of attorney, or any oi^
" inal document whatsoever, of or
" belonging to any court of record,
" or any bill, petition, process, no-
" tice, rule, answer, pleading, inter-
" rogatory, deposition, affidavit, »f-
" fiimation, I'eport, order, or decree,
" or any original document wfaalso*
" ever, of or belonging to any court
" of equity or court of admiralty in
" England or Ireland, or any doco-
"ment or writing, or any copy of
" any document or writing, used or
"intended to be used as evidence
" in any court in this section men-
" tioned, shall be guilty of felony,
" and being convicted tliereof shall
" be liable, at the discretion of the
" court, to be kept in penal servi-
" tude for any term not exceeding
" seven years, and not less than five
" years (27 & 28 Vict. c. 47), or to
" to be imprisoned for any term not
" exceeding two years, with or witli-
" out hard labour, and wHith or witb-
" solitary confinement."
By 8. 28, " whosoever, being the
" clerk of any court, or other officer
" having the custody of the records
" of any court, or being the deputy
" of any such clerk or officer, shall
" utter any false copy or certificate
" of any record, knowing the same
" to be false ; and whosoever, other
" than such clerk, officer, or deputy,
" shall certify any copy or ccrtifi-
" cate of any record of such clerk,
" officer, or deputy ; and whosoever
" shall forge or fraudulently alter,
" or offer, utter, dispose of, or put
" off, knowing the same to be foiled
RECORDS, ETC.
195
" or fraudulently altered, any copy
"or certificate of any record, or
"phall offer, utter, dispose of, or
" put off any copy or certificate of
"any record having thereon any
" false or forged name, handwriting,
"or {dgnature, knowing the same
" to be false or forged ; and who-
" soever shall forge Sie seal of any
" court of record, or shall forge or
"fraudulently alter any process of
" any court other than such courts
" as in the last preceding section
"mentioned, or shall serve or en-
" force any forged process of any
"court whatsoever, knowing the
" same to be forged, or shall deliver
" or cause to be delivered to any
" person any paper falsely purport-
" ing to be any such process, or a
" copy thereof, or to be any judg-
"ment, decree, or order of any
" court of law or equity, or a copy
" thereof, knowing the same to be
"false, or shall act or profess to
" act under any such false process,
"knowing the same to be false,
" shall be guilty of felony." (Pm«-
Ukmeat as in preceding section,)
The practice of issuing (ancient
common law) county court proces-
ses in blank, for the attorneys to fill
up after they had been issued by the
county clerk, was highly irregular.
And semble, that the filling up of a
county court summons, or altering
a distringas into a summons, after
it had been so issued in blank, was
a forgery at common law. Bex v.
OoKer, 5 C. & P. 160— Patteson.
One who was committed to gaol
jmder an attachment for a contempt
in a civil cause, counterfeited a j^re-
tended discharge, as from his cred-
itor to the sheriff and gaoler, under
which he obtained his discharge : —
Held, a misdemeanor at eo^on
law, although the attachment not
^ng for non-payment of money,
the order was in itself a mere nul-
ity, and no warrant to the sheriff
for his discharge. Bex v. Fawcett,
^ East, P. C. 862.
To constitute the offence of act-
ing, or professing to act, under false
colour or pretence of the process of
the county court, it is not necessary
that there should be any actual pro-
cess in existence, or anything on the
face of it purporting to be such.
jReg, V. Evaiis^ Dears. & B. C. C.
236 ; 3 Jur., K S. 594 ; 26 L. J.,
M. C. 92 ; 7 Cox, C. C. 293.
A notice to produce, given in a
pretended cause in a county court,
is not process of the court with-
in 9 & 10 Vict. c. 95, s. 57. Reg,
V. CastU, Dears. & B. C. C. 363 ;
3 Jur., N. S. 1308 ; 27 L. J., M.
C. 70 ; 7 Cox, C. C. 375.
The prisoner had obtained a blank
form used in a county court for the
plaintiff to fill in particulars as in-
structions for issuing summonses;
this he filled up and signed it, with-
out any authority, " W. G., regis-
trar of the Taunton Court." On
the back of the form he wrote,
" Unless the whole amount claimed
by A. R., draper of T., is paid on
Saturday, an execution warrant will
be immediately issued against you.
Witness my signature, W . G." The
prisoner sent the form thus filled up
to a person who was indebted to
him : — Held, that this was acting,
or professing to act, under the false
colour or pretence of the process of
the county court, within 9 <fc 10
Vict. c. 95, s. 57. Heg, v. Rich-
wwmc?. Bell, C. C. 142; 5 Jur., N.
S. 521 ; 28 L. J., M. C. 188 ; 7 W.
R. 417 ; 32 L. T. 139 ; 8 Cox, C.
C. 200.
But the 9 & 10 Vict. c. 95, s. 57,
does not apply to mere false repre-
sentations or assertion of authority
to receive a debt. Reg. v. Myoit^ 6
Cox, C. C. 406 — Crompton.
Accountant' General and other Of-
Jicers' Names,}— By 24 «fc 25 Vict,
c. 98, 8. 33, " whosoever, with in-
" tent to defraud, shall forge or al-
" ter any certificate, report, entry,
" indorsement, declaration of trust,
"note, direction, authority, instru-
" strument, or writing made or pur-
196
FORGERY.
((
((
((
" porting or appearing to be made
" by the accountant-general, or any
" other officer of the Court of Chan-
" eery in England or Ireland, or by
" any judge or officer of the Landed
" Estates Court in Ireland, or by
" any officer of any court in Eng-
" land or Ireland, or by any cashier
" or other officer or clerk of the
" Bank of England or Ireland, or
" the name, handwriting, or signa-
" ture of any such accountant-gen-
" eral, judge, cashier, officer, or
" clerk as aforesaid, or shall offer,
" utter, dispose of, or put off any
" such certificate, report, entry, in-
" dorsement, declaration of trust,
" note, direction, authority, instru-
" ment, or writing, knowing the
" same to be forged or altered, shall
" be guilty of felony, and, being
" convicted thereof, shall be liable,
" at the discretion of the court, to be
kept in penal servitude for any
term not exceeding fourteen years,
and not less than five years (27 &
" 28 Vict. c. 47), or to be impris-
" oned for anv term not exceedinor
" two years, with or without hard
" labour, and with or without sol-
" itary confinement." {Former pro-,
vision^ 12 Geo. 1, c. 32, s. 9.)
Forging a paper writing, purport-
ing to be an office copy of a report
of the accountant-general's, of mon-
ey being paid into the bank, and al-
so an office copy of a certificate of
one of the cashiers of the bank, was
within 12 Greo. 1, c. 32, s. 9. Rex
V. Gtbsoti^ 1 Leach, C. C. 61 ; 2
East, P. C. 899.
(n) Registers of Births, Marriages
and Deaths,
By 24 & 25 Vict. c. 98, s. 36,
whosoever shall unlawfully de-
stroy, deface or injure, or cause or
[)ermit to be destroyed, defaced
or injured, any register of births,
baptisms, marriages, deaths or
burials which now is or hereafter
shall be by law authorized or re-
quired to be kept in England or
Lreland, or any part of any such
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" register, or any certificate copy
" of any such .register, or any part
" thereof, or shall forge or frattdo-
" lently alter in any such register
"any entry relating to any birth,
" baptism, marriage, death or bur-
" ial, or any part of any such regis-
" ter, or any certified copy of siich
" register, or of any part thereof, or
" shall knowingly and unlawfully
" insert or cause or permit to be in-
" serted in any such register, or in
" any certified copy thereof, any
" false entry of any matter relating
" to any birth, baptism, marriage,
" death or burial, or shall knowing-
" ly and unlawfully give any false
" certificate relating to any birth,
" baptism, marriage, death or burial,
" or shall certify any writing to be
" a copy or extract from any such
" register, knowing such writing, or
" the part of such register whereof
" such copy or extract shall be so
" given, to be false in any material
" particular, or shall forge or coud-
" terfeit the seal of or belonging to
" any register office or burial board,
" or shall offer, utter, dispose of or
" ])ut oft' any such register, entry,
" certified copy, certificate or seal,
" knowing the same to be false,
" forged or altered, or shall offer,
" utter, dispose of or put off any
" copy of any entry in any such
" register, knowing such entry to
" be false, forged or altered, shall be
" guilty of felony, and, being con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
" kept in penal servitude for life, or
" for any term not less than i^^
" years (27 & 28 Vict c. 47), or to
" be imprisoned for any term notei-
" ceeding two years, with or with-
" out hard labour, and 'W'ith or with-
" solitary confinement.*' Previous
provision, 1 1 Geo. 4 cfc 1 Will. 4, c.
66, 8. 20.)
By 8. 37, " whosoever shall know-
" ingly and wilfully insert, or cau»
" or permit to be inserted, in any
" copy of any register directed or
" required by law to be transmitted
SEALS OF THE BaNGDOM.
197
"to any registrar or other officer,
" any false entry of any matter re-
" latiiig to any baptism, marriage
'• or burial, or shall forge or alter,
" or shall offer, utter, dispose of or
" put off, knowinff the same to be
" forged or altered, any copy of any
" roister so directed or required to
"be transmitted as aforesaid, or
" shall knowingly and wilfully sign
" or verify any copy of any register
" so directed or required t§ be trans-
"mitted as aforesaid, which copy
" rfiall be false in any part thereof,
'• knowing the same to be false, or
"shall unlawfully destroy, deface
" or injure, or shall for any fraudu-
" lent purpose take from its place of
" deposit, or conceal, any such copy
" of any register, shall be guilty
" of felony." {Punishment as in
preceding section,) (Previous provi-
»ofi, 11 Geo. 4 & 1 Will. 4, c. 66,
s. 22.)
The latter act made it an offence
to utter any writing as and for a
copy of an entry in any register of
marriage made or kept by the vicar
of any parish in England : — Held,
first, that the indictment for that
offence need not set out the instru-
ment, as the words of 2 & 3 Will.
4, c, 123, s. 3, stating it to be suffi-
cient in forgery to describe the in-
fitrranent as in an indictment for
stealing it, were applicable to such
a case, although the instrument it-
sdf could not be the subject of an
indictment for larceny; and, sec-
ondly, that the judges could take ju-
dicial notice that the parish of Seigh-
ford, in the county of Stafford, is a
'parish in England, and that the in-
dictment need not aver that fact.
% v. J^arpe, 8 C. & P. 436—
Parke and Patteson.
(o) Registries of Deeds,
By 24 & 25 Vict. c. 98, s. 31,
** whosoever shall forge or fraudu-
" lently alter, or shall offer, utter,
"dispose of or put off, knowing the
** same to be forged or fraudulently
"altered, any memorial, affidavit,
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affirmation, entry, certificate, in-
dorsement, document or writing
made or issued under the provis-
ions of any act passed or hereafter
to be passed for or relating to the
registry of deeds ; or shall forge
or counterfeit the seal of or belong-
ing to any office for the registry
of deeds, or any stamp or impres-
sion of any such seal; or shall
forge any name, handwriting or
signature purporting to be the
name, handwriting or signature of
any person to any such memorial,
affidavit, affirmation, entry, cer-
tificate, indorsement, document or
writing which shall be required or
directed to be signed by or by vir-
tue of any act passed or to be pass-
ed, or shall offer, utter, dispose^
of or put off any such memo-
rial or other WTiting as in this
section before mentioned, having
thereon any such forged stamp or
impression of any such seal, or
any such forged name, handwrit-
ing or signature, knowing the
same to be forged, shall be guilty
of felony, and, being convicted
thereof, shall be liable, at the dis-
cretion of the court, to be kept in
penal servitude for any term not
exceeding fourteen years, and not
less than five years (27 & 28
Vict. c. 47), or to be imprison-
ed for any term not exceeding
two years, with or without hard
labour, and with or without soli-
tary confinement."
(p) Seeds of the Kingdom.
By 24 & 25 Vict. c. 98, s. 1,
whosoever shall forge or counter-
feit, or shall utter, knowing the
same to be forged orcounterleited,
the great seal of the United King-
dom, her Majesty's privy seal,
any privy signet of her Majesty,
her Majesty's royal sign-manual^
any of her Majesty's seals appoint-
ed by the twenty-fourth article of
the union between England and
Scotland to be kept, used and con-
tinued in Scotland, the great seal
198
FORGERY.
ii
U
" of Ireland, or the privy seal of Ire-
** land, or shall forge or counterfeit
" the stamp or impression of any of
" the seals aforesaid, or shall utter
" any document or instrument what-
" soever having thereon or affixed
" thereto the stamp or impression
of any such forged or counterfeit-
ed seal, knowing the same to be
" the stamp or impression of such
forged or counterfeited seal, or
any forged or counterfeited stamp
" or impression made or apparently
*' intended to resemble the stamp
" or impression of any of ^the seals
" aforesaid, knowing the same to be
" forged or counterfeited, or shall
" forge or alter, or utter, knowing
" the same to be forged or altered,
" any document or instrument hav-
" ing any of the said stamps or im-
** pressions thereon or affixed there-
" to, shall be guilty of felony, and
" being convicted thereof, shall be
" liable, at the discretion of the
" court, to be kept in penal servi-
" tude for life, or for any term not
" less than five years (27 & 28 Vict.
" c. 47), or to be iihprisoned for any
" term not exceeding two vears,
" with or without hard labour, and
"with or without solitary confine-
" ment." (Previous provision, 1 1
Geo. 4 & 1 Will. 4, c. 66, s. 2.
(q) Stamps.
Forging and Uttering,'] — Deliver-
ing a box, containing forged stamps,
to the party's own servant, that he
may carry them to an inn, to be for-
warded by the carrier to a custom-
er in the country is an uttering.
Rex V. CoUicott, K. & R. C. C. 212 ;
2 Leach, C. C. 1048 ; 4 Taunt. 300.
If a person engraves a counter-
feit stamp, similar in some parts,
dissimilar in others, to tlie legal
stamp, and, cutting out the dissimi-
lar parts, utters the similar parts
as genuine, concealing the space
whence the dissimilar part is cut
out ; this amounts to a forgery and
uttering. lb.
In describing the offence of foi-g-
ing a stamp, it is enough to de-
scribe it as a stamp provided tnd
used in pursuance of an act of ptr-
liament, without setting out the im-
pression or inscription, or namb^
ing the amount of duty denoted
thereby. IB.
QusBre, whether a person who
took some of the stamps from a
writ, and then fixed them to anoth-
er writ of the same kind, and then
sold it fot the purpose of its bang
used by such persons as misht buy
it from his vendee, was within 12
Geo. 3, c. 48? Jtex v. Field, I
Leach, C. C. 383.
Knowingly selling plate mth the
king's mark forged on it, was not
capital, but only subject to trans-
portation. Hex V. Hope, 1 M. C. G.
396.
Having false stamped Paper.}^
Where on indictment for having in
possession certain reams paper, with
counterfeit marks, and impressions
of certain stamp used to denote
the duty imposed in respect of pa-
per, on the covers or wrappers, it
was proved that the paper came
from the prisoner at Exeter, and
was brought thence by his servant
to Topsham, in the county of Devon,
and seized by the custom officer on
board a vessel at Topsham .-—Held,
that this was in law a custody and
possession in the prisoner in the
county of Devon sufficient to main-
tain the indictment in that comit^'.
Hex V, Pirn, R. & R. C. C. 425.
Transposing Stamps. 55 Geo.^^
c. 184, s.l, and 4.Sfb Vict, c. 56.}
— It was the duty of a clerk in tiie
stamp oflice to cut off the comers
of ^parchments which bore the bloe
paper stamps allowed for as spoiled
by the commissioners of stamps, and
to put the blue paper stamps and
the small pieces of parchment »
cut off, and which were glued to
them, into the fii*e, without separat-
ing them. Instead of doing this, he
separated a blue paper stamp from
TRADE MARKS.
199
the small piece of parchment to
which it had been glued, and glued
it to a new skin of parchment, on
which the words " This indenture"
had been written. The jury found
that he bad no fraudulent intent
when he cut the stamp from the
akin of parchment, but that he had
when he separated the blue paper
stamp from the small piece of parch-
ment; and that he then intended to
apply the stamp to a parchment in-
tended to be used as an indenture :
—Held, that this was a capital of-
fence. Jiexy. Smith, 5 C,&FA07;
ULC'C. 314.
It 'being uncertain whether the
stamp .so separated was impressed
before or after 55 Geo. 3, c. 184 : —
Held, that the party might be prop-
erly convicted on a count stating
the stamp to be the impression of a
die made and used '^ m pursuance
of the statute made and provided
for denoting a certain duty, being
one of those under the management
of the commisi^ioners of stamps."
n. •
A person might be found guilty
raider 13 Geo. 3, c. 52, s. 14, and
38 Geo. 3, c. 69, s. 7, if proved to
have transposed the mark of the
Goldjimkh's Company from one
^d ring to another, although both
lings were genuine, and although
the jury might be of the opinion
that be did so without any fraudu-
lent intention. JRex v. Ogden, 6 C.
&P.631.
Using the same Stamp more than
«M«J — To constitute a felony under
12 Geo. 3, c. 48, s. 1, of writhig
some matter or thing liable to
rtamp-duty on paper on which had
been before written some other mat-
ter liable to stamp-duty, before the
' paper had been again stamped, it
was essential that the party writing
sboold do it with some fraudulent
mtent Reg, v. AMay, 8 C. & P.
136 — ^Abinger.
(r) Trade Marks,
{See 25 & 26 Vict, c. 88.)
The prosecutor, Borwick, sold
powders called "Borwick's baking
powders," and " Borwick's Qgg pow-
ders," wrapped up in printed pa-
pers. The prisoner procured 10,000
wrappers to be printed similar to
Berwick's, except that the name
of Borwick was omitted on the bak-
ing powders. In these wrappers
the prisoner inclosed powders of
his own, which he sold for Bor-
wick's ]jpwder8. The jury found
that the wrappers so far resembled
Berwick's as to deceive i)ersons of
ordinary observation, and that they
were procured and used by the
prisoner with an intent to defraud :
— Held, that he could not be con-
victed of forgery, though he was li-
able to be indicted for false preten-
ces. Reg, V. Smith, 8 Cox, C. C.
32 ; 4 Jur., N. S. 1003 ; Dears. &
B. C. C. 566 ; 27 L. J., M. C. 225.
(s) Transfer of Stock or Shares,
By 24 & 25 Vict. c. 98, s. 2,
'' whosoever shall forge or alter, or
'' shall oifer, utter, dispose of or put
" oif, knowing the same to be forg-
" ed or altered, any transfer of
" any share or interest of or in any
" stock, aniniity or other public
" fund which now is or hereafter
" may be transferable at the Bank
" of England or at the Bank of Ire-
" land, or of or in the capital stock
" of any body corporate, company
" or society which now is or here-
" after may be established by char-
" ter, or by, under or by virtue of
" any act of parliament, or shall
" forge or alter, or shall offer, utter
" dispose of or put off, knowing the
" same to be forged or altered, any
" power of attorney or other author-
" ity to transfer any share or inter-
" est of or in any such stock, annui-
ty, public fund or capital stock,
or to receive any dividend or
a
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200
FORGERY.
" money payable in respect of any
'• such sliare or intcMvst, or shall de-
'* manil or endeavor to have any
" such share or interest transferred,
" or to receive any dividend or
" money payable in respect thereof,
" by virtue of any such forged or
** altered power of attorney or oth-
*' er authority, knowing the same to
" be forged or altered, with intent
" in any of the cases aforesaid to de-
'i fraud, shall be guilty of felony,
" and, being convicted thereof,
'' shall be liable, at the discretion of
" the court, to be kept in penal serv-
'* itude for life, or for an j^ term not
*' less than five years (27 & 28
" Vict. c. 47), or to be imprisoned
" for any term not exceeding two
" years, with or without hard la-
" bour, and with or without solita-
" ry confinement." (Former enact-
menty 11 Geo. 4 & 1 Will. 4, c. 66,
s. 6.)
By 8. 4, " whosoever shall forge
any name, handwriting or signa-
ture purporting to be the name,
handwriting or signature of a wit-
ness attesting the execution of
any power of attorney or other
authority to transfer any share or
interest of or in any such stock,
' annuity, public fund or capital
' stock as is in either of the last
' two preceding sections mentioned,
' or to receive any dividend or
' money payable in resj^ct of any
' such share or interest, or shall of-
' fer, utter, dispose of or put oif
' any such power of attorney or
' other authority, with any such
' forged name, handwriting or sig-
' nature thereon, knowing the same
' to be forged, shall be guilty of
' felony, and, being convicted
' thereof, shall be liable, at the dis-
* cretion of the court, to be kept in
' penal servitude for any term not
* exceeding seven years, and not
'less than five years (27 & 28
' Vict. c. 47), or to be imprisoned
* for any term not exceeding two
' yearSj with or without hard la-
' bour, and with or without solita-
" ry confinement." {Previous pro-
vision^ 1 1 Greo. A & I Will. 4, c. 66,
s. 8.)
An indictment for forging a trans-
fer of stock is good, although the
stock has never been accepted by
the person in whose name it stood,
and although the transfer was not
witnessed according to the rules
and directions of the bank. Hex t.
Gade, 2 Leach, C. C. 732 ; 'I East,
P. C. 874.
A., a share-broker, had bought
twenty sliares in a railway compa-
ny of L., a broker, which stood in
the name of P. ; but L. did not send
A. the deed of transfer, as A was
in embarrassed circumstances, and
owed L. money. A. procured a
boy to execute a deed of transfer of
the shares in the name of P. ; all
the calls in the shares had been paid
up : — Held, a forgery, and that A
could be convicted on counts laying
an intent to defraud P. and^the rail-
way company. Heg. v. Hoatsoft^ 2
C. & K. 777— Rolfe.
A power of attorney to transfer
government stock, signed, sealed
and delivered, was a deed within 2
Geo. 2, c. 25, s. 1. Rex v. /Viwrffe-
roy, 1 M. C. C. 52; 2 Bing. 413;
10 Moore, 1 ; 1 C. ifc P. A21 ; S.P,
Rex V. Pringle^ 1 M. C C. 68.
Forging a power of attorney to
receive a seaman's wages, in the
name of a supposed child as admin-
istratrix of such seaman, who, in
fact, died childless, is a forgery.
Rex v. Lewis ^ 2 East, P. C. 957.
Making false Entries in pMe
Transfer Books.']— By 24 & 25 Vict
c. 98, s. 5, " whosoever shall wilfully
" make any false entry in, or wilfully
" alter any word or figure in, any «
" the books of account kept by the
" Bank of England or the Bank of
" Ireland, in which books tlie ac-
" counts of the owners of any stock,
" annuities or other public funds
*" which now are or hereafter may
'^ be transferable at the Bank of
" England or at tlie Bank of Ireland
WARRANTS, ORDERS, ETC.
201
*' shall be entered and kept, or sliall '
" in anv manner wilfully falsify anv
" of the accounts of any such own- 1
*' ers in any of tlic paid books, with
" intent in any of the cases aforesaid
'• to defraud, or shall wilfully make i
*■ any transfer of any share or inter-
** est of or in any stock, annuity or
** other public fund which now is or
" hereafter may be transferable at
" the Bank of England or at the
" Bank of Ireland, in the name of
" any pennon not being the true and
** lawiiil owner of such share or in-
"terest. with intent to defraud,
" shalfte guilty of felony, and, be-
" ing convicted thereof, shall be li-
" able, at the discretion of the court,
*• to be kept in penal servitude for
" life, or for anv term not less than
"^ve years (27 & 28 Vict. c. 47),
" or to be imprisoned for any term
" not exceeding two years, with or
"without hard labour, and with
'*or without solitary confinement.
(Former enactment, 11 Geo. 4 <fc 1
Will. 4, c. 66, s. 5.)
Jn Companies.'] — On an indict-
ment for forging and uttering a
transfer of shares in a railway com-
pany, the register of shareholders
bearing the seal of the company,
and kept according to 8 & 9 Vict,
c. 16, 8. 9, is evidence to shew that
an individual is a shareholder, with-
out further authentication ; and in
order to prove that such individual is
liable to be .defrauded by the forg-
ii^ and uttering of a ti'ansfer of
the shares, it is not necessary to
give further proof of his title to the
shares. Reg, v. Nash, 2 Den. C. C.
493 ; 16 Jur. 553 ; 21 L. J., M. C.
147.
Bank Dividend Warrants.] — By s.
6, " whosoever, being a clerk, offi-
" cer or servant of, or other person
"employed or intrusted by, the
" Bank of England or the Bank of
"Ireland, shall knowingly make
"out or deliver any dividend
" warrant, or warrant for payment
Fish. Dig. — 15.
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of any annuity, interest or money
payable at the Bank of England
or Ireland, for a greater or less
amount than tlie person on whose
behalf such warrant shall be made
out is entitled to, with intent to
defraud, shall be guilty of felony,
and, being convicted thereof,
shall be liable, at the discretion of
the court, to be kept in penal serv-
itude for any term not exceed-
ing seven years, and not less
than five years (27 & 28 Vict. c.
47), or to be imprisoned for any
term not exceeding two years,
with or without hard labour, and
with or without solitary confine-
ment." {Former provision, 11
Geo. 4 & 1 Will. 4, c. 66, s. 9.)
(t) Warraiits, Orders, Undertakings,
Requests and Receipts for Goods
or for Money,
Statute,]-— By 24 & 25 Vict. c. 98,
s. 23, " whosoever shall forge or al-
" ter,'or shall offer, utter, dispose
"of or put off, knowing the same
" to be forged or altered, any under-
" taking, waiTant, order, authority
" or request for the payment of
" money, or for the delivery or trans-
" fer of any goods or chattels, or of
" any note, bill or other security for
" the payment of money, or for pro-
" curing or giving credit, or any in-
" dorsement on or assignment of
" any such undertaking, warrant,
" order, authority or request, or any
" accoimtable receipt, acquittance
" or receipt for money or for goods,
" or for any note, bill or other secu-
" rity for the payment of money, or
" any indorsement on or assignment
" of any such accountable receipt,
" with intent, in any of the cases
" aforesaid, to defraud, shall be
" guilty of felony, and, being con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
" kept in penal servitude for life, or
" for any term not less tlian five
« years (27 & 28 Vict. c. 47), or to
*' be imprisoned for any term not
" exceeding two years, with or with-
202
FORGERY.
" out hard labour, and with or with-
" out solitary confinement." {For-
mer provision^ 11 Geo. 4 & 1 Will.
4, c. 66, ss. 3, 10.)
By B. 24, " whosever, with intent
" to defraud, shall draw, make, sign,
" accept or indorse any bill of ex-
" change or promissory note, or any
" imdertaking, warrant, order, au-
" thority or request, for the pay-
" ment of money, or for the deliv-
" ery or transfer of goods or chat-
" tels, or of any bill, note or other
" security for money, by procura-
" tion or otherwise, for, in the name
" or on the account of any other
" person, without lawful authority
" or excuse, or shall offer, utter, dis-
" pose of or put off any such bill,
" note, undertaking, waiTant, order,
" authority or request so drawn,
" made, signed, accepted or in-
" dorsed by procuration or other-
" wise, without lawful authority or
" excuse, as aforesaid, knowing tlie
" same to have been so drawn, made,
" signed, accepted or indorsed as
" aforesaid, shall be guilty of fel-
" ony, and being convicted thereof
" shall be liable, at the discretion
" of the court, to be kept in penal
" servitude for any term not exceed-
" ing fourteen years and not less
" than five years (27 & 28 Vict. c.
" 47), or to be imprisoned for any
" term not exceeding two years,
" with or without hard labour, and
" with or witliout solitary confine-
«' ment."
Orders for the Delivery of Goods. ^
— ^A forged order for the delivery of
foods was not within 7 Geo. 2, c.
2, unless directed to the pei'son
who had the goods. Rex v. Clinch,
1 Leach, C. C. 540 ; 2 East, P. C.
988.
In a case of forging an order, the
order charged as forged must im-
port that the person making it has
a disposing power over the subject
of the order, or there ought to be
proof that the person m whose
name it was made had such power.
Bex V. Baker, 1 M. C. C. 231.
A note, in a name of an overseer
of the poor, to a shopkeeper, desir-
ing him to let the prisoner hare
certain goods, which he would see
him paid for, was not a warrant or
an order for the delivery of goods
within 7 Geo. 2, c. 22. Hex wMUcK-
eU, 2 East, P. C. 936.
A forged order on a tradesman,
in the name of a customer, request-
ing that the goods mentioned in it
might be delivered to the bearer,
was not within 7 Geo. 2, (^ 22, if
the customer had no interest in the
goods mentioned. JRex v. WiR-
iafiis, 1 Leach, C. C. 114; 2 East,
P. C. 937.
A prisoner convicted on or con-
fessing to an indictment for utter-
ing a forged order, ought not* to
have judgment passed, if it appears
that the person whose name is
forged had no authority to order,
and the writing merely purports to
be a request. jRe^, v. Keictojij 2
Forscinsc an order in the name of
a silversmith for the re-delivery of
plate from Goldsmiths' Hall, viz.
" Please to deliver my work t^ the
bearer," was within 7 Greo. 2, c. 22,
and 13 Geo. 3, c. 26. RexY.Jones^
1 Leach, C. C. 53 ; 2 East, C. C.
941.
An order to taste wine in the
London Docks, is an order for the
delivery of goods, the forgery of
which is a felony. jReg. v. lU'idge^
2 C. & K. 871 ; T. & M. 127 ; 18
Jur. 543; 18 L. J., JVL C. 179; 8
Cox, C. C. 552.
At the London Docks, a person
bringing a tasting order from a
merchant having wine there is not
allowed to taiste till the order has
the signature of a clerk of the
company across it. A. uttered a
tasting-order, with the merchant's
name forged to it, by presenting it
to the company's clerk for his s^-
nature across it. The clerk refused
WARRANTS, ORDERS, ETC.
208
to ngn it : — ^Held, that in this state
the order was a forged order for
the delivery of goods. Ih,
A document in the following
foim, " W. Trim, 2«.," is neither a
warrant for the payment of money,
nor a request for the delivery of
goods i^-ithin 11 Geo. 4 & 1 Will.
4, c. 66, Bs. 3, 10, and cannot be
shewn to be so by parol evidence.
Reg, T, EUU, 4 Cox, C. C. 258.
On an indictment for forging and
nttering an accountable receipt for
goods, the following document was
neld ^p be an accountable receipt :
" By order of R. F. Pries, we have this
day transferred into the name of
Messrs. Collman and Stolterfoht,
759 quarters and 4 bushels of
wheat, ex-August Ferdinand, Cap-
tain Richards, a Xeustadt. En-
tered by R. F. Pries, and now
lying at our granaries, Bermondsey-
walL The wheat is insured against
risk of fire by us. — Brown and
Young, Com Exchange, Oct. 23,
1852.'^ Reg, v. Pries, 6 Cox, C.
C. 165.
If the course of dealing between
A. and B. is, that A. shall write
persons' names in a list with a sum
against each name, on sight of
which B. is to furnish goods on the
credit of A. to each person whose
name is on the list to the amount
set against his name, such list is a
request for the delivery of goods,
and the fraudulent alteration of one
of the sums in it is indictable as a
forger}'. Reg, v. WaiUerSy Car. &
M. 588— Ludlow, Serjt.
An indictment charged the pris-
oner with uttering, knowing the
fiame to be forged, a warrant order
and request for the delivery of
goods in the words and figures fol-
lowing : " Mr. B., — ^Please send by
bearer a quantity of basket nails, a
clasp — E. L." It was proved that
£. L. was a customer of B.^s, and
had employed the prisoner in his
Bervice, and that the prisoner had
delivered to B. a paper, as set forth
in the indictment, which was a forg-
ery of E. L.'s handwriting. The
prisoner was convicted. On a case
reserved, it was objected that the
paper, being only a request, did not
suppoiit the indictment, which de-
scribed it as a warrant order and
request ; — Held, that there was no
variance, as the document being
set out in hsec verba in the indict-
ment, the description of^it therein
became immaterial. Reg. v. WUU
iatm, T. & M. 382 ; 2 Den. C. C.
61 ; 14 Jur. 1052 ; 20 L. J., M. C.
106.
Requests for the Delivery of
Goods,'] — A forged paper in the
following form : — " Per bearer, two
11-4 superior counterpanes. T.
Davis, E. Twell." It was not ad-
dressed to any person, is neither an
order nor a request within 1 1 Greo.
4 & 1 Will. 4, c. 66, s. 10. Rex v.
Cvllefi, 6 C. <fc P. 116 ; 1 M. C. C.
300.
But a request for the delivery of
goods need not be addressed to any
one. Rex v. Carney y 1 M. C. C.
351.
A paper in the fallowing form is
a request for the delivery of goods,
though not addressed to any one :
— "August 3, 1839 — one 16-in.
helmet scoop, one 4-qt. kettle — Jas.
Hayward." Reg, v. Fulhrooky 9
C. & P. 37— Denman.
A i)erson who obtained goods on
delivering a forged letter — " Please
to let the bearer, W. T., have for
J. R. four yards of linen," signed
J. R., was not indictable for obtain-
ing goods by false pretence, as this
was utteiing a forged request for
the delivery of goods, which was a
felony under 11 Geo. 4 & 1 Will.
4, c. 66, s. 10. Rex. v. lHvanSy 5 C.
& P. 553— Taunton.
The prisoner represented that M.
C. was dead, and had left him 50/.
or 60/., and it was in the hands of
A. D., and that he wanted mourn-
ing. He brought a forged paper,
purporting to be signed by A. D.,
as follows :— " Please to let W. T.
204
FORGERY.
have such things as he wants for
the imi-pose. Sir, I have got the
amount of 27L for M. C. hi my
keeping these many years ": — Held,
that this was a forged request for
the delivery of goods. Hex v.
Thomas, 7 C. & P. S51 ; 2 M. C.
C. 16.
A forged paper addressed to a
tradesman, and purporting to be
signed by one of his customers, in
the following form : — " Please to
let bearer, William Goff, have spill-
shovel and grafting tool for me,"
is a forged request for the delivery
of goods. Heg. v. Jiames^ 8 C. &
P. 292— Gurney.
A forged paper in the following
fonn : — " Please to let the lad have
a hat, and I will answer for the
money — E. B.," is a forged request
for the delivery of goods, and is not
the less so because it may also be a
forged undertaking for the payment
of money. Heg, v. White, 9 C. &
P. 282— Gurney.
Where the prisoner signed a doc-
ument which entitled him to re-
ceive a delivery note, which, in the
course of business of a canal com-
pany, would enable him to demand
and have the goods described there-
in delivered to him on payment of
the charges for carriage : — Held, a
forgery of a receipt for goods.
Beg, V. Meigh, 7 Cox, C. C. 401—
Wightman.
Evidence of Uttering. 1^ — On a
charge of uttering an order or a
request for the delivery of goods,
proof of the receipt of goods by
the prisoner is no evidence of the
utterance. Jteg, v. Johnson, 6
Cox, C. C. 18— Wightman.
Orders and Warrants for the
Payment of Money. ^ — The words
" warrant" or "order," in 7 Geo.
2, c. 22, were svnonymous. Rex v.
Mitchell, 2 East, P. C. 936.
A bill of exchange or a banker's
draft might have been charged in
an indictment on 7 Geo. 2, c. 22, as
an order for payment of money.
Bex V. WiUaughhy, 2 East, P. C.
944 ; S. P. Bex v. Shepherd. 2
East, P. C. 944 ; 1 Leach, 226.
A note — " Please to send 10/. by
bearer, as I am so ill I caimot wait
on you," — was not an order for the
payment of money within 7 Geo. 2,
c. 22. B^R V. Ellor, 1 Leach, C.
C. 323 ; 2 East, P. C. 937.
The prisoner drew a bill,—
" Please to pay the bearer on de-
mand 15/., — and signed it with his
own name, but it was not addressed
to any one ; there were forgpd upon
this instrument, when uttered, the
words and signature, "Payable at
Messrs. Masterman & Co., White
Hart Court. Wm. M'Inerheney."
M'Inerheney kept cash at !Master-
man & Co.'s : — Held, that this was
not an order for payment of money.
Bex V. Bavenscroft, R. & R. C. C.
161.
Lidictment for forging an order
for payment of money. The in-
strument was an order to pav pris-
oner or order the sum oi four
pounds five shillings, being a
month's advance on an intended
voyage to Quebec, in the ship Mary
Ann, as per agreement with G. AL,
master. The prisoner had in the
margin of the order written, "on
receiving this cheque I agree to
sail, and to be on board wiuiin sir-
.teen hours from the date of this
cheque ": — ^Held, a good order for
payment of money within the U
Geo. 4 & 1 Will. 4, c. 66, s. 3.
Rex V. Bamfield, 1 M. C. C. 416.
It is no defence on an indictment
for forging and uttering an order of
a board of guardians of a Poor-lav
Union, to shew that the person who
signed the order as presiding chair-
man was not, in fact, chairman on
the day he signed, the forgerf
charged being of another name in
the order. Beg. v. Pike, 2 M. C.
C. 70 ; 3 Jur. 27.
An order for the payment of
prize-money, signed hi the name of
a seaman, was an order for pay*
WARRANTS, ORDERS, ETC.
205
ment of money, or bill of exchange
within 7 Geo. 2, c. 22, the forgery
of which was felony, although tlie
reqnlsites of 32 Geo. 3, c. 34, s. 2,
had not been complied with. Hex
V. Macintosh, 2 East, P. C. 942,
956; 2 Leach, C. C. 883.
The prisoner drew a bill upon
the treasurer of the navy payable
to or order, and signed it in
the name of a navy surgeon : — Held,
that to constitute an order for pay-
ment of money there must be some
payee ; a direction to pay or
order is not sufficient. I^ex v. Hich-
ards,K & R, C, C, 193.
A prisoner was indicted for foi*g-
ing an order for the payment of
money, with intent to defraud " H.
D., as one of the public officei-s of
the Y. district bank." The instru-
ment was as follows :— " Thomton-
le-Moor, July 20, 1844. Mr. J.,
Sir, Please to pay James Jackson
13/., by order of Christopher Sad-
ler, Thomton-le-Moor, brewer. The
District Bank. I shall see you on
Monday. Yours, obliged, Charles
Sadler'': — Held, to be an order
within 11 Geo. 4 & 1 Will. 4, c.
66, s. 3. Beff. V. Carter, 1 Den. C.
C.6o; IC. ifeK. 741.
A person who knowingly utters
a forged pass of a discharged pris-
oner, purporting to have been given
under 5 Geo. 4, c. 85, may be con-
victed of uttering a forged warrant
and order for the payment of mon-
ey, although the forged pass be not
precisely in the form given by that
statute, and although it does not
pwport to be sealed with the coun-
ty seal, or any seal provided for
the purpose, the only seal to it be-
ing two small pieces of paper af-
fixed to it by wafers. Jie(/, v.
M'ConnelL 1 C. & K. 371; 2 M.
C. C. 298.
A woman who applies to a re-
lieving officer for money on such a
felse pass, and produces it to him,
niay be convicted of uttering a
forged warrant and order for the
payment of money, although the
forged pass direct the money men-
tioned in it to be paid to " William
Henry," on his giving a receipt.
lb.
A writing, purporting to author-
ize the bearer to receive money de-
posited in a bank by a friendly
society on accountable receipts,
and purporting to be signed by the
principal officers of the society,
may, in an indictment for forgery,
be alleged to be a warrant for the
pavment of money. JRe(/. v. Jfar-
ris\ 2 M. C. C. 267; 1 C. ifc K. 179.
An indictment for forging an
order for the payment of money is
not sustained by a forged letter re-
questing a person, with whom the
sup[)osed writer had dealings, to
pay money, the balance being at
the time aejainst the writer, it eg,
V. Roberts^, 2 M. C. C. 258; Car. &
M. 652.
" Three days after the ship Selah
has sailed from the port of Sunder-
land, please to pay to John Wilson,
or bearer, the sum of four pounds
0 shillings and 0 pence (provided
the said John Wilson has actually
sailed in the said ship), being part
of his wages in advance, on her in-
tended voyage to Alexandria. —
John Robson, Master. To Mr.
John Stobart, owner of ship," is
an order for payment of money.
Reg. V. Lonsdale, 2 Cox, C. C. 222
— ^Ald^rson and Rolfe.
A forged paper was in the fol-
lowing form ; — "To M. &, Co.
Pay to my order, two months after
date, to Mr. J. S., 80^., and deduct
the same out of my account." It
was not signed, but across it was
written, " Accepted, Luke Lade ";
and at the back the name and ad-
dress of J. S. M. & Co. were
bankers, and Luke Lade kept cash
with them : — Held, that this paper
was a warrant for the payment of
money, as, if genuine, it would
have been a warrant from Luke
Lade to the bankers to pay the
money to J. S. Reg. v. Smith, 1
I C. & K. 700 ; 1 Den. C. C. 79.
206
FORGERY.
" Mr. M. will be pleased to send
by the bearer 10/. on Mr. H.'8 ac-
count, as Mr. H. is very bad in bed,
and cannot come himself," and the
paper purported to be signed, "Mr.
R., foreman, St. A. Foundry," and
Mr. M. was clerk to Messrs. C,
bankers, with whom Mr. H. kept
an account, and R. was foreman to
Mr. H., but had no authority to
draw on Mr. H.'s banker, is a war-
rant for the payment of money.
Reg. V. Vivian, 1 C. & K. 719 ; 1
Den. C. C. 35.
Any instrument for payment, im-
der which, if genuine, the payer
may recover the amount against
the party signing it, may be prop-
erly considered a warrant for the
payment of money ; and it is equally
this, whatever be the state of the
account between the parties, and
whether the party signing it has, at
the time, funds in the hands of the
party to whom it is addressed. lb.
An instrument in the following
form : " Please to pay T. E. Turber-
ville 3/. 12«. 6c?. for sick-pay to
Brother Isaac Jones," and simed
by the officers of a friendly society,
and directed to the treasurer, is, on
the face of it, an order within 11
Geo. 4 & 1 Will. 4, c. 64, s. 3 ; and
may be shewn by evidence to be a
warrant for the payment of money.
Where a prisoner was charged with
forging the above instrument, and
some counts of the indictment laid
the intent to be to defraud "J. C.
and others," by virtue of 1 1 Geo. 4
& 1 Will. 4, c. 66, s. 28, and it ap-
peared that the prisoner and J. C.
and others were members of this so-
ciety : — Held, that the word " oth-
ers" might be held to include or ex-
clude the prisoner, according as it
was necessary, for the support of
the indictment, that his name should
be considered as included or excluded.
Other counts of the indictment laid
the intent to be to defraud W. R. : —
Held, that this intent was supported
by proof that W. R. was the treasurer
of the society, and that it was the
course of business and his duty to
pay money, on having genuine or-
ders or warrants for that purpose in
the above form.. Reg. v. Turher-
mile, 4 Cox, C. C. IS-^-Erle.
A. kept a deposit account, but
not a drawing account, with B., a
banker, «nd was not entitled to
draw cheques on B. C. presented a
forged cheque of A. on B., which
B. paid : — Held, that this was a
forged warpant for the payment of
money, but not a forged order; as
A. had, by the course of dealing be-
tween him and B., no right to drsv
cheques on B. Reg. v. WilUamt, 2
C. & K. 51— Wiffhtman.
A post-dated cheque is an order
for the payment of money, Reg, v.
Taylor, 1 C. & K. 213— CresswelL
A sailor's shipping note for 2i 15*.,
payable to A. or bearer, five days
after the ship shall sail, is not a Toid
instrument under 17 Geo. 3, c. 30,
but is an undertaking, warrant or
order for the payment of money
within 1 1 Geo. 4 & 1 Will. 4, c 66,
8. 3. Reg. v. Anderson, 2 AI. &
Rob. 469— Parke.
But a warrant for wages, si^ed
by a foreman and paid by a cashier,
is not a warrant for the payment of
money within 1 1 Geo. 4 <fc 1 WilL
4, c. 66, s. id. Reg. v. RiUing, 1
F. <& F. 324— Bramwell.
A certificate in the following
foiTji : " I hereby certify that the
within-named William Michell is
gaining his living by hawking," the
production of which was ueces^^Tf,
m order that the prisoner might ob-
tain payment of a sum of money to
which he was entitled, is not an nn-
dertaking, warrant or order for tiie
payment of money within 11 Geo.
4 & 1 Will. 4, c. 66. Reg. v. Mitch-
eU, 2 F. & F. 44— Williams.
For forging such a certificate the
prisoner must be indicted for a forg-
ery at common law. Ih.
D. was indicted for having forged
and uttered the following instrn-
ment : — " Mr. Lowe. — Bought of
C. Dawson, English and foreign
WARRANTS, ORDERS, ETC.
207
fruit-merchant and potato salesman.
Nov. Dtii, two bushels of apples, 9«.
Sir,— I hope you will excuse me
sending for such a trifle, but I have
receivwl a lawyer's letter thig morn-
ing, and miless I can make up a
certain amount by one o'clock,
there will be an action cqpimenced
against me, and I am obliged to
hunt after every sliilling. Yours,
Ac., F. Dawson" : — ^Held, that this
▼as pro|)erly described a@ a warrant
for the payment of monev. Reg, v.
Dawson, T. & M. 428 ; 2'Den. C. C.
75; 15Jur. 159; 20 L. J., M. C.
102 ; 5 Cox, C. C. 220.
A forged order for the payment
of money needs not disclose on the
fiw* of it the name of the party to
whom it is addressed, but the direc-
tion may be shewn by extrinsic evi-
dence. Reg, V. SneUing^ Dears. C.
C.219; 17 Jur. 1012; 2 C. L. R.
114; 23 L. J., 31. C. 8 ; 6 Cox, C.
C. 230.
An instrument professing to be a
scrip certificate of a railway compa-
ny, was not an undertaking for the
payment of money within 11 Geo.
4 & 1 Will. 4, c. 66. Reg. v. West,
1 Den. C. C. 258 ; 2 C. & K. 496 ;
& P., Clark v. Newsam, 5 Railw.
Cas. 69 ; 1 Exch. 131 ; 16 L. J.,
Exeh. 296.
A dividend warrant of a railway
company, signed by the secretary,
aod addressed to a banker, required
the latter to pay the amount to L.
(a i«hareholder) or order, and to
charge the same to the company's
revenue account. It further requir-
ed the shareholder's name to be in-
dorsed, and the banker would not
Say the money without such in-
orsement. The prisoner uttered
this dividend warrant, knowing
that the indorsement of the share-
holder's name was a forgery, and
he was convicted upon an indict-
ment wliich charged him in one
count with utteiing a warrant for
thepajment of money, and in anoth-
er with uttering an order for the
payment of money : — Held, that the
document was properly described.
Reg, V. Autey, Dears. & B. C. C.
294 ; 3 Jur., K S. 697 ; 26 L. J.,
M. C. 190 ; 7 Cox, C. C. 329.
Receipts,^ — After a receipt was
signed by the jjerson giving it, the
person to whom it was given added
words above the signature : — Held,
that it was for the jury to say
whether the addition of those words
altered the effect of the receipt.
Reg, V. Milton, 10 Cox, C. C. 364—
Chambers, C. S.
Held, also, that it was doubtful
whether such addition amounted to
a forgery. lb.
Post- Office Money Orders,^ — A
post-office money order purj)orting
to be signed by a local postmaster,
and addressed to the Post-office,
London, in the following form,
" Credit the person named in my
letter of advice the sum of 5^., and
debit the same to this office," is
both a warrant and an order for the
payment of monev. Reg, v. Gil-
christ, Car. & M. 224 ; 2 M. C, C.
233.
V. was indicted for uttering for-
ged orders for the payment of mon-
ev, and convicted. He had fraudu-
lently obtained certain forms of
post-office orders from the office at
A., and also some with the N. stamp
affixed. These orders being tilled
up, and signed " G. J., pro postmas-
ter," there being no one 'of the
name of G. J. at N., were uttered
by V. in payment for goods at D.
No letters of advice were forwarded
to D. : — Held, that V. was rightly
convicted. Rer/. v. Vanderstein, 16
Ir. C. L. R. 574 ; 10 Cox, C. C.
177— Ir. C. C. R.
Letters of Credit,!^ — A letter of
credit, on which the correspondents
of the writer of it, having funds of
his in their possession, ap))ly them
to the use of the party in whose fa-
208
FORGERY.
vour it is given, is a warrant for the
payment of money. Reg. v. Baake,
8 C. <fc P. 626 ; 2 M. C. C. 66.
An indorsement on a letter of
credit is not an order, as not being
within the original mandate. JHeg,
V. Wilton, 1 i". & F. 391— Bram-
well.
Undertakings for the Payment of
Money,'] — A guarantie is the sub-
ject of forgery, though no consider-
ation appeal's, and 19 & 20 Vict. c.
97, s. 3, gives validity to such an
xmdertaknig. Heg, v. Goelho, 9
Cox, C. C. 8.
Indictment under 11 Geo. 4 & 1
Will. 4, c. 66, s. 3, for uttering a
forged undertaking for the payment
of money : — Held, that the statute
applied as well to a written promise
for the payment of money by a
third person as to a like promise of
payment by the supposed party to
the instrument. Iteg, v. Stone, 1
Den. C. C. 181 ; 2 C. &. K. 364.
A forged instrument, by which
liie supix)sed maker of it, in consid-
eration of goods to be sold to P.,
undertakes to guarantee to the vend-
or the due payment for all such
goods so to be sold to P., but so that
the supposed maker should not be
liable beyond 10/., is a forged un-
dertaking for the payment of money.
Forging a document purporting
to guarantee a master to a certain
amount in money against the dis-
honesty of a clerk, is forging an un-
dertaking for the payment of money
within 24 & 25 Vict. c. 98, s. 23.
Eeg,\, Joyce,'10 Cox, C. C. 100
L.&C. 576; 11 Jur., N. S. 472
34 L. J., M. C. 168 ; 13 W. R. 662
12L. T., N. S. 351.
The forging of a paper, by which
the supposed writer promises to pay
B., or order, 100/., or such other
sum, not exceeding the same, as he
may incur by reason of his becom-
ing one of the sureties to the sheriff
of Y., for J. R., a sheriff's officer, is
a forgery of an undertaking for the
payment of money. Heg, v. Reed,
8 C. & P. 623 ; 2 Lewin,'C. C. 185.
Mequestsfor the Payment of Mon-
ey,]—Before the 24 & 25 Vict c.
98, s. 24, a forged request to pay a
third person money on account of
the supposed writer would not sus-
tain an indictment for forgery, de-
scribing it either as an undertaking,
warrant or order for the pavment of
monev. Heg, v. 77ior7i, 2 M. C. G.
210; 'Car. & M. 206.
A customer in the country had
an account open with a wholesale
house in London ; a letter purprt-
ing to come from him was delivered
at their place of business ; it wasm
the following form : — " I shall feel
obliged by your paying Mr. B. 2/.
78, 8d,, and debitmg me with the
same. You will please have a re-
ceipt, and add the amount to in-
voice of order on hand." It apjiear-
ed to be the practice ofthe house in
London to pay country customers
on requests of a similar description.
The party who sent it by an inno-
cent agent, and obtained the money
on it, was indicted for forging and
uttering it. The instrument was de-
scribed in the indictment as an un-
dertaking, a warrant and an order,
each for the payment of 21, 1$, 8(/.
The prisoner having been convicted
of uttering, the judges held the con-
viction wrong, as the instrument
was neither an undertaking, a war-
rant, nor an order, ift.
It was not an offence, imder 11
Geo. 4 & 1 Will. 4, c. 66, to forge
an indorsement upon a warrant or
order for the payment of money ; nor
if a party wrote on the back of »
bill of exchange payable to R. A,
" Received for R. A.," and signed
liis own name to it, was he guilty
of forging a recei])t. 7?«c v, Arscott^
6 C. & P. 408— Littledale, Vaughan
and Bolland. But see 24 & 25
Vict. c. 98, s. 24.
Receipts or Acquittances for Mon-
ey,]— A person makes a copy of a
WARRANTS, ORDERS, ETC.
209
receipt, and adds to it other words,
as, for example, " in full of all de-
mands," which were not in the orig-
inal ; it is a forgery, if the copy is
oflfered in evidence on the supposed
loss of the original. Upfold v. Lett,
5 Esp. 100— Ellenborough.
A stamped memorandum, import-
ing that A. B. had paid a sum of
money to G. D., but not importing
anv acfcnowledcrement from C. D.
ofhLsha\Tng received it, was not
such a receipt as 2 Geo. 2, c. 25, s.
1, made it capital to forge or utter,
fe V. Harvey, R. & R. C. C. 227.
An entry of the receipt of money
or notes made by a cashier of the
Bank of England in the bank book
of a creditor was an accountable
receipt for the payment of money
within 7 Geo. 2, c.'22. Rex v. Har^
rmn, 1 Leach, C. C. 180 ; 2 East,
P. C. 927, 988.
Forging an indenture of appren-
ticeiiiip and a receipt for the appren-
ticeship fee, vnth intent to defraud
the stewards of the Feast of the Sons
ofthe Clergy, was forc^ery. Hex v.
Jonei, 1 Leach, C. C. ^366 ; 2 East,
P. C. 991.
The name of the holder of a navy
hQl, signed on a proper receipt
stamp, and affixed to the navy bill,
did not on the face of it purport to
be a receipt for money within 2
Geo. 2, c. 25, and 7 Geo. 2, c. 22 ;
but as the money was paid on such
signature, and it always had been
considered as a receipt at the Navy
Office, it might, by proper aver-
ments in the indictment, be brought
within the protection of the statutes
as a receipt for money. Hex v.
^fenAfr, 2 Leach, C. C. 624 ; 2 East,
P. C. 928, 977.
If a person, employed by the ex-
ecutors of a public accountant to
settle the account of the testator
with government, procure fabrica-
ted vouchers, arid deliver them to
the Xavv Board, in order to exon-
erate the estate of the testator from
an extent, it was a forging and ut-
tering within 2 Geo. 2, c. 25. Bex
V. Thomas, 2 Leach, C. C. 877 ; 2
East, P. C. 934.
A scrip receipt not filled up with
the name of the subscriber is not a
receipt for money within the stat-
utes against forgerv. Jtex v. Lyon,
2 Leach, C. C. 597'; 2 East, P. C.
933.
A servant employed by her mis-
tress to pay tradesmen's bills, re-
ceived from her a bill of a trades-
man named Sadler, together with
the money to pay that and other
bills. She brought the bill again to
her mistress, with the words " paid
Sadler" on it, the word Sadler be-
ing written with a small .s, and
there being no initial of the chris-
tian name of the tradesman. The
mistress stated that she believed
the words to be a receipt and that
no application was made for the
money afterwards : — Held, on an
indictment for forgery, that the
words " paid Sadler," under the
circumstances, imported a receipt
or an acquittance for the money, and
was not merely a memorandum by
the servant of her having paid the
bill. JReg, V. Houseman , 8 C. & P.
180 — Denman.
If a high constable issues his re-
ceipt for the payment of a county
rate amounting to SI. 5$. 9rf., and
having received the money, writes
a receipt at the bottom of the paper,
" Received the above rate, J. P.,"
and after that, the sum 3/. 5«. 9c?.
in the receipt is fraudulently altered
to 3/. 15«. 9d. ; this is a forgery of
a receipt within 11 Geo. 4 & 1
Will. 4, c. 66, s. 10, and may be
laid with intent to defraud any
rated inhabitant (by name) of the
parish on which the rate is imposed
(and others). He^. v. Vaughan, 8
C. & P. 276— Gumey.
The words "Settled, Samuel
Hughes," at the foot of a bill of
parcels, import a receipt and an ac-
quittance. Hex v. Martin, 7 C. &
P. 549 ; 1 M. C. C. 483.
The prisoner, a pay-serjeant of
the artillery, obtained from the
210
FORGERY .
paymaster a receipt for a sum of
money as part of subsistence of a
company for the month of JVIay.
He afterwards erased May and in-
serted Jime, and gave tlie receipt
to a tradesman, who, according to
the usual practice, advanced the
sum to the prisoner, and sent the
receipt to the agent of the regiment,
who paid the amount. The indict-
ment for forgery, describing the in-
strument as a receipt, was good.
Rex V. Hope, 1 M. C. C. 414.
The provisions of the 7 Geo. 4, c.
16, s. 38, extend to the forging and
uttering a receipt, or other docu-
ment, relating to a Chelsea pension,
supposed to be payable, and are not
confined to cases of forging and ut-
tering receipts and other document*^
relating to i)ensions in actual exist-
ence. R^g, V. Pringle^ 9 C. & P.
408; 2M. C. C. 127.
An instrument purporting to be
an agreement, and stamj)ed as such,
and reciting that an arrangement
had been made between the parties
thereto in consideration of a certain
sum, the recei))t of which was there-
by acknowledged, and then pro-
ceeding to release the party pay-
ing it from all further claim in the
matter in resj^ect of which it was
paid, is a receipt or an acquittance
under 11 Geo. 4 & 1 Will. 4, c. 66,
s. 10, and may be so described in
an indictment for forgery. Reg, v.
HiU, 2 Cox, C. C. 246.
Where it was shewn to be the
custom of bankers to give receipts
on the deposit of money in the fol-
lowing form ; — " Received of A.
eighty-five pounds to his credit.
This receipt not transferable" ; and
to repay the money with interest on
the return of this receipt, with A.'s
name written on it: — Held, that
forging the name of A., and receiv-
ing the money due on its return,
was a forging and uttering an ac-
quittance for 85/. Reg, v. Atkinson^
2 M. C. C. 215 ; Car. & M. 325.
It was the practice of the treasur-
er of a county, when an order had
been made on him for the [>aymeot
of expenses of a prosecution, to pay
the whole amount to the attorney
for the prosecution, or hisclerk, and
to require the signature of every
peraon named in the order to be
written on the back of it, and op-
posite to each name the sum order-
ed to be paid to each person : — ^Held,
that such a signature is not a receipt,
the forging of which is an oflence
against 11 Geo. 4 & 1 Will. 4, c. 66,
s. 10, and that it is merely an au-
thority to the treasurer to pay the
amount. Reg, v. Cooper^ 2 C. Jb E.
586— Erie.
A scrip certificate in a railway
company is not an accountable re*
ceipt, or an acqiuttance or a receipt
within 11 Geo. 4 & 1 Will. 4, c. 66,
s. 10 ; therefore the forgery of such
a document is not a felony, but a
misdemeanor only. Clark v. Nw-
samy 1 Exch. 131 ; 5 Railw. Cas.
69 ; 16 L. J., Exch. 296 ; S, RBeg.
V. West. 1 Den. C, C. 258 ; 2 C. &
K. 496; 2 Cox, C. C. 437.
A turnpike toll-gate ticket is a re-
ceipt for money within 24 i& 25
Vict. c. 98, s. 23. Regi, v. Fitch,
L. &C. 159; 9Cox, C. C. 160; 8
Jur., N. S. 624 ; 10 W. R. 489 ; 6
L. T., N. S. 256.
The prisoner was a collector of
rates for a corporation. While in
the service he received cash from
the prosecutor on account of a rate,
for which he gave a receipt. After
he had left the service, he called on
the prosecutor for the balance, wWch
was paid, and for a receipt. The
prisoner altered the figures in the
former receipt, which then appeared
as a receipt for the entire rate due:
— Held, not to be a forgery. i?<^.
V. Sargent, 10 Cox, C. C. 161-
Pigott.
Uttering Receipts,"] — A. applied to
B. to lend him money, and gave
him the name of the defepdant as a
surety. B. went to him, and, to sat-
isfy himself of his respectability,
asked to see his receipts for rent
WARRANTS, ORDERS, ETC.
211
and taxes. The defendant placed
in the hands of B., for his inspec-
tion, three documents purporting to
he receipts for poor rates, with the
intent to induce B. to advance mon-
ey to A One of these receipts was
foi^d. B. inspected the docu-
ments, and then returned tliem to
the defendant : — Held, that the de-
fendant might be convicted of ut-
tering a foiled receipt, and that,
for the purpose of rendering him li-
able, it was not necessary that the
receipt should be used to get credit
upon it by its operating as a receipt,
but that it was sufficient if he used
it fraudulently to obtain money by
means of it. Heg, v. Tow, 6 Cox, C.
C.l ; 2 Den. C. C. 475.
Held, also, that it was immaterial
whether the monev to be obtained
by means of it was for himself or for
any other person. Ih,
The prisoner, servant of A., ap-
plied to B. for payment of 17«. due
ftom B. to A. B. refused to pay it
without A.*s receipt. The prisoner
went awav and returned with a doc-
ument, as follows : — " Received from
Mr. Bendou, due to Mr. Warman,
17«. Settled.*' Whereupon B. paid
the debt : — Held, a question for the
jury whether the prisoner tendered
the receipt as the handwriting of A.,
which would make him liable on
this indictment; or as his own,
which would make his act a false
pretence. Reg, v. Ind^r, 1 Den. C.
C. 325 ; 2 C. & K. 635.
A. was treasurer of an unenroUed
fiiendlv societv, and it was his dutv
to receive contributions from the
inembers, and pay them into a bank
in his own name for the benefit of
the society. At meetings of the so-
ciety he produced to the members a
fictitious ]Tass-book, purporting to
vouch for the payment of monies by
him into the bank. This book did
not truly represent the state of
the account between himself and
the bank. He also at various
times drew out monies which he
had paid in, and appropriated them
to his own use. He was con-
victed upon an indictment which
charged him with uttering a receipt
for money, the jury finding that he
presented a false account, with in-
tent thereby to obtain credit for
having duly paid into the bank the
various sums which he had received,
and to be continued in his office of
treasurer with a view to obtain other
monies from the society, which he
might fraudulently approj)riate to
his own use : — Held, that the con-
viction was right. Heg, v. Smithy
9 Cox, C. C. 162; L. & C. 168; 8
Jur.,N. S. 572; 31 L. J., M.C.I 54;
10 W. R. 583; 6 L. T., N. S. 300.
A paid secretary of an unenrolled
friendly society, of which his wife
was a member, was directed by the
society to pay into a savings bank
40/., given him for that, purpose.
At the next meeting he handed in a
book, indorsed " Savings Bank, New-
street, Huddersfield," apd on which
was written, " 1865, Oct. 30, receiv-
ed 40Z." The indorsement on and
entry in the book were forgeries,
and the money had not been paid
into the bank. He was convicted
of uttering this document, knowing
it to be forged : — Held, that the con-
viction was right. Beq. v. Moody ^
L. & C. 173 ; 9 Cox, C. C. 166 ; 8
Jur., ]Sr. S., 574 ; 31 L. J., M, C.
156 ; 10 W. R. 585 ; 6 L. T., N. S.
301.
It being the duty of a railway
station-master to pay B. for deliver-
ing and collecting parcels, he false-
ly told B. that the company had de-
termined to pay him only for col-
lecting, and not for delivering, and
accordingly then continued to pay
him only for collecting, but he con-
tinued to charge the company with
payments purporting to be made to
B. for delivering. In order to fur-
nish a voucher to the company for
these pretended payments, the sta-
tion-master, after paying B.^s serv-
ant the sum entered under the head
" collecting," in the printed form
supplied by the company, and ob-
212
FORGERY.
taining his receipt in writing for that
amount, without his or B.'s knowl-
edge, put a receipt stamp under the
servant's name, and wrote thereon
in figures a sum, being the aggre-
gate for collecting and delivering:
— Held, that he was properly con-
victed of forgery. Beg. y. Griffiths,
Dears. & B. C. C. 548 ; 4 Jur., IST.
S. 442 ; 27 L. J., M. C. 205 ; 7 Cox,
C. C. 501.
Receipts for Goods.^ — A pawn-
broker's duplicate of goods pledged
with him is an accountable receipt
for goods. lieg, v. Fitchie, Dears.
& B. C. C. 175 ; 3 Jur., N. S. 419 ;
26 L. J., M. C. 90 ; 7 Cox, C. C.
257.
(u) miu.
By 24 & 25 Vict c. 98, s. 21,
whosoever, with intent to defraud,
shall forge or alter, or shall offer,
utter, dispose of, or put off, know-
ing the same to be forged or alter-
ed, any will, testament, codicil or
testamentary instrument, shall be
guilty of felony, and being con-
victed thereof, shall be liable, at
the discretion of the court, to be
kept in penal servitude for life, or
for any term not less than five
years (27 & 28 Vict. c. 47), or to
be imprisoned for any term not
exceeding .two years, with or with-
out hard labour, and with or with-
out solitary confinement." {Sim-
ilar to 11 Geo. 4 & 1 Will. 4, c. 66,
s. 3 )
Before 7 Will. 4 & 1 Vict. c. 26,
8. 9, there could be no forgery of a
will of lands, attested only by two
witnesses. Rex v. WaU, 2 East, P.
C. 953.
To for^e a will was a capital of-
fence, alWiough the supposed testa-
tor was living. Rex v. Sterling, 1
Leach, C. C. 99 ; 2 East, P. C. 950;
S. P. Rex V. Googan, 1 Leach, C. C.
449 ; 2 East, P. C. 1001.
The forgery of the will of a non-
existing person is an offence within
the statute. Rsg. v. Avery, 8 C. &
P. 596— Patteson.
A., an attorney, was employed
by B., as his solicitor, to put out
money upon mortgage. C. applied
to A. to procure him the advance of
money on mortgage, and to act as
his solicitor in procuring it. C. stat-
ed to A. that he was the owner of
certain freehold lands, and produced
a forged will in proof of his title,
which he placed m the hands of A.
B. advanced the money, A. acting
as his solicitor, by preparing the
mortgage-deeds: — Held, that, on
the trial of C. for uttering the forg-
ed will, A. was bound to produce
the will, and also to give evidence
of what C. said to him as to the ad-
vance of the money. Ih.
On an indictment for forging a
will, the probate of that will unre-
})ealed is not conclusive evidence of
its validity, so as to be a bar to the
prosecution. Rex v. Battery, R. &
R. C. C. 342 ; S, P. Rex v. Gihim,
R. & R. C. C. 343, n.—Ellenbo-
rough.
In an indictment for forging a
will, an intent to defraud the heir-
at-law was charged in one count,
and in another an intent to defraud
persons to the j urors unknown. The
only one found guilty was the son
of the testator, whose will was al-
leged to be forged. No evidence
was given that the testator had been
previously mamed, or lef^ any other
children, but one of the witnesses
stated that he had heard a report
that the deceased had left another
son by a former wife : — Held, that
there was no evidence of an inten-
tion to defraud any one, to justify a
conviction. Reg, v. Tylney, 1 Den.
C. C. 319; 18 L. J., M. C. 36; 5.
G, nom. Reg. v. T^ifts, 3 Cox, C,
C. 160.
A forged will had been sent to
an attorney with some title-deeds
ostensibly for the purpose of asking
his advice ujwn them, but really
that he might see the will and act
INSTRUMENTS OTHERWISE DESIGNATED.
213
upon it. The will being produced
at the trial by the attorney, the pris-
oner's counsel objected to the read-
ing of it on the ground that it was
a privileged communication, and
the objection was overruled at the
time, and afterwards on a case re-
served. Reg, V. Hayward^ 2 Cox,
C. G. 23.
Sigmng a wrong christian name
to the person whose will a false in-
strument purports to be, is a forgery.
Eex V. Fitzgerald^ 1 lieach, C. C.
20; 2 East, P. C. 953.
On an indictment for forging a
seaman's will, the muster-book of
the Navy-Office is good evidence to
prove the identity of the supposed
testator. Bex v. Rhodes^ 1 Leach,
C. C. 24 ; S, P. Bex v. Fitzgerald,
1 Leach, C. C. 20 ; 2 East, P. C.
953.
Three were jointly charged with
procuring other persons to utter a
forged will. The only evidence for
the prosecution was of separate acts,
at separate times and places, done
by each of the persons charged as
accessories. At the end of that ev-
idence one of them pleaded guilty :
—Held, that the other two might,
notwithstanding, be convicted. lieg.
V. Barber, 1 C. <fc K. 442-.Gumey,
Williams and Maule.
Upon the trial of an indictment
for forging the will of one W., it
was prov^ that the prisoner's wife,
by his desire, took another will pur-
porting to be the will of W., also
forged, to a solicitor, and asked him
to advance money on mortgage of
the property which passed under
the will of her father W . ; that the
will being left with the solicitor and
discovered by him to be a forgery,
he made an exact copy of it and
then returned it to the prisoner.
What the wife stated to the solicit-
or was afterwards communicated
to the prisoner. The solicitor stated
that he was not then acting as the
prisoner's attorney, that he made no
charge for the interview, but that
if he had found the security suffi-
cient he should have advanced the
money. Notice was given to the
prisoner to produce that will, and
upon its non-production the copy
taken by the solicitor was tendered
and received : — Held, that the in-
terview between the solicitor and
the prisoner's wife was not privileg-
ed as a confidential communication,
and that the conversation which
then took place, and the copy of the
will, were both admissible. Beg. v.
Farley, 2 Cox, C. C. 82 ; 2 C. & K.
313 ; 1 Den. C. C. 197.
(v) Instruments otherwise Designated,
By 24 & 25 Vict c. 98 s. 39,
" where by this or by any other act
" any i^erson is or shall hereafter be
" made liable to pimishment for
" forging or altering, or for oifering,
" uttering, disposing of, or putting
" off, knowing the same to be forged
" or altered, any instrument or writ-
" ing designated in such act by any
" special name or description, and
" such instrument or writing, how-
" ever designated, shall be in law a
"will, testament, codicil, or testa-
" mentary writing, or a deed, bond,
" or writing obligatory, or a bill of
" exchange, or a promissory note
" for the payment of money, or an
" indorsement on or assignment of a
" bill of exchange or promissory
" note for the payment of money, or
* ' an acceptance of a bill of exchange,
" or an undertaking, warrant, order,
" authority, or request for the pay-
" ment of monev, or an indorsement
" on or assignment of an undertak-
" ing, warrant, order, authority, or
" request for the payment of money,
" within the true intent and mean-
" ing of this act, in every such case
'' the person forging or altering such
" instrument or writing, or offering,
" uttering, disposing of, or putting
" off such instrument or writing,
" knowing the same to be forged or
" altered, may be indicted as an of-
" fender against this act, and pun-
2U
FORGERY.
" ished accordingly." (Ifhrmer pro-
vision, 1 1 Geo. 4 <fc 1 Will. 4, c. 66,
s. 4.)
4. Obtaining Property upon Forged
Instruments,
By 24 & 25 Vict. c. 98, s. 38,
" whosoever, with intent to defraud,
" shall demand, receive, or obtain,
" or cause or procure to be deliver-
*' ed or paid to any person, or en-
" deavor to receive or obtain, or to
" cause or procure to be delivered or
" paid to any person, any chattel,
" money, security for money, or other
" property whatsoever, under, upon,
" or by virtue of any forged or altered
*' instrument whatsoever, knowing
" the same to be forged or altered,
" or under, upon, or by virtue of
" any probate or letters of adminis-
" tration, knowing the will, testa-
"ment, codicil, or testamentary
" \\'Titing on which such probate or
" letters of administration shall
" have been obtained to have been
" forged or altered, or kno\ivdng
" such probate or letters of adminis-
" tration to have been obtained by
" any false oath, aifirmation, or
" affidavit, shall be guilty of felony,
" and being convicted thereof shall
" be liable, at the discretion of the
" court, to be kept in penal servi-
" tude for any term not exceeding
" fourteen years, and not less than
« five years (27 & 28 Vict. c. 47),
" or to be imprisoned for any term
" not exceeding two years, with or
" without hard labour, and with or
" without solitary confinement."
See lieg. v. Adams, 1 Den. C. C. 38.
5. Parties Indictable,
Principals arid Accessories!\ — ^By
24 & 25 Vict. c. 98, s. 49, "m the
" case of every felony punishable
" under tliis act, every principal in
" the second degree, and every ac-
" cessory before the fact, shall be
'^ punishable in tlie same manner as
" the principal in the first degree is
" by this act punishable ; and every
" accessory after the fact to any
" felony punishable under this act
'^ shall on conviction be liable^ at
" the discretion of the court, to be
" imprisoned for any term not ex.
" ceeding two years, with or with.
" out hard labour, and with or
" without solitary confinement ; and
" every person who shall aid, abei,
" counsel, or procure the commis-
" sion of any misdemeanor punisha-
" ble under this act shall be liable
" to be proceeded against, indicted,
" and punished as a principal offend-
" er."
It is not sufficient to make a per-
son a principal in uttering a foiled
note, that he came with the ujterer
to the town where it was uttered,
went out with him from the inn
at which they put up a little before
he uttered it, and joined him again
in the strei^t, a short time after the
uttering, and at some little distance
from the place of uttering, and ran
away when the utterer was aippre-
hended. Rex v. Davis, R. & K. C.
C. 113.
If a wife, by the incitement of
her husband, knowingly uttered in
his absence a forged order and cer-
tificate for the reception of pri»-
money, under 43 Geo. 3, c. 123,
they might be indicted together,
she as a principal on the statute, and
he as an accessory, before the feet,
at common law. Rex v. Morru,
2 Leach, C. C. 1096.
Persons privy to the uttering of
a forged note by previous concert
with the utterer, but who were not
present at the time of uttering, or
so near as to be able to afford mj
aid or assistance, are not principals^
but accessories before the feet.
Rex V. Soares, li, & R. C. C. 25 ; 2
East, P. C. 974.
If several plan the uttering of »
forged order for payment of money,
and it is uttered accordingly by one
in the absence of the others, the
actual utterer is alone the principal.
Rex V. Badcock, R. ife R C. C. m
If several combine to fotge Bank
of England notes, and each executes
INDICTMENT.
215
by himself a distinct part of the forg-
ery/hut they are not together when
thenotesare completed, 3iey are nev-
ertheless all guilt V as principals. Rex
V. Bingley, K. & R. C. C. 446.
If several make distinct parts of
a forged instrument, each is a prin-
cipal, though he does not know by
whom the other parts are executed,
and though it is finished by one
alone in the absence of the others.
ReK T. Kirkwood, 1 M. C. C. 304.
The makers of the paper and
plate respectively, for the purpose
of forging a note afterwards filled
up by a third person, are principals
in the forgery with that person,
though each executed his part in
the absence of the others, and with-
out knowincr bv whom the other
parts are executed. Hex v. Dade,
1 M. C. C. 307.
Persons not present, nor sufficient-
ly near to give assistance at the
tim* of uttering forged notes, are
not principals, although they may be
accessories before tlie fact. Hex v.
iStewort, li. & R. C. C. 363.
Other Parties.'] — ^The prisoner was
die paid secretary of an unen-
roUed friendly society, of which his
wife was a member. He delivered
to the society a book on which was
endoraed " Savings Bank, New-
Btreet, Huddersfield," and in which
was an entry, '* 1855, Oct. 30, re-
ceived 40^." It was proved that
the entfy was a forgery, and that
the money had not been paid into
the savings-bank. The j ury having
found that the prisoner was guilty
of knowingly uttering with mtent
to deceive the society, and that he
had, in fact, defrauded it, it was
objected for the prisoner that being
the husband of a member he was a
part^wner, and could not be made
criminally liable for defrauding his
co^wners, and also that the docu-
ment was not the subject of forgery:
—Held, that both objections were
nntenable, and that the conviction
was right. Heg. v. Moody, 9 Cox,
C. C. 166 ; L. & C. 173 ; 31 L. J.,
M. C. 156 ; 8 Jur., N. S. 574 ; 10
W. R. 585; 6L.T.,N. S. 301.
The prisoner was the treasurer,
and also a member of an unenrolled
friendly society, and it was liis du-
ty to pay monies received into the
society's bankers. The prisoner
produced to the society a fictitious
book, purporting to be the bank
pass-book, containing entries pur-
porting to vouch that he had paid
certain monies into the bank, and
that the bank acknowledged the re-
ceipt of them, which book did not
truly represent the state of account.
The prisoner having at various
times drawn out monies which he
had appropriated for his own pur-
pose, the jury found the prisoner
guilty of presenting a false account
vdth intent to obtain credit for liav-
ing paid the monies into the bank,
with a view to obtain other monies
from tlie society whicli lie might
fraudulently apj)ropriate to his own
use : — Held, that the prisoner,
though a member of the society,
might properly be convicted of ut-
tering a forged receipt, with intent,
&c. Meg, V. Smith, 9 Cox, C. C.
162 ; L. & C. 168 ; 8 Jur., N. S.
572 ; 31 L. J., M. C. 154 ; 10 W.
R. 583 ; 6 L. T., N. S. 300.
6. Indictment,
Describing Instrument.] — By 24
& 25 Vict. c. 98, s. 42, " in any in-
" dictment for forging, altering, of-
" fering, uttering, disposing or put-
" ting off any instrument, it shall be
" sufficient to describe such instru-
" ment by any name or designation
" by which the same may be usually
" known, or by the purport thereof,
" without setting out any copy or
" fac-simile thereof, or otherwise
" describing the same, or the value
" thereof." (14 & 15 Vict. c. 100,
s. 5, and 2 & 3 Will. 4, c. 123, s. 3,
former enactments.)
And by s. 43, " in any indictment
" for engraving or making the whole
" or any part of any instrument, mat-
216
FORGERY.
" ter or th ing whatsoever, or for using
" or liaving the unlawful custody
" or possession of any plate or oth-
" er material upon which the whole
" or any part of any instrument,
" matter or thing whatsoever shall
" liave been engi-aved or made, or
" for having the unlawful custody
" or possession of any paper upon
" which the whole or any part of
" any instrument, matter or thing
" whatsoever shall have been made
" or printed, it shall be sufficient to
" describe such instrument, matter
'' or thing by any name or designa-
" tion by which the same may be
" usually known, without setting
" out any copy. or fac-simile of the
" whole or any part of such instru-
" ment, matter or thinsc." {Similar
to 14 & 15 Vict. c. lOO; s. 6.)
General Points.] — In an indict-
ment, the words, " in manner and
form following, that is to say," do
not bind the party to recite the in-
strument verbatim, nor render a
mere foimal omission or mistake
fatal. Bex v. May, 1 Dougl. 193.
If any part of a true instrument
is altered, the indictment may lay
it to be a forgery of the whole in-
strument. Hex V. Datoson, 2 East,
P. C. 978 ; 1 Str. 19.
For every alteration of a true in-
strument makes it a forgery of the
whole. lb.
In an indictment for forgery, a
description to a common intent of
the" person intended to be defraud-
ed is sufficient. Hex v. Lovell, 1
Leach, C. C. 248 ; 2 East, P. C.
990.
In an indictment for forging, the
words, " purporting to be a bank-
note," mean that the instrument
upon the face of it appears to be a
bank-note ; and the want of such
appearance cannot be supplied by
the representation of the party ut-
tering it. Hex V. Janes, 1 Leach,
' C. C. 204 ; 2 East, P. C. 883 ; 1
Dougl. 302.
An indictment for forging a bill
of exchange directed to ilansom,
Moreland and Hammer^ley, staling
that it pui*ported to be directed to
George Lord Kinnaird, William
Mofeland and Thomas Hanmiere.
ley, by the names and description
of Ransom, Moreland and Hammers-
ley, is bad ; for the puqwrt and
tenor are repugnant. JHex v. GH
Christ, 2 Leach, C. C. G57 ; 2 East,
P. C. 982.
Upon Bank Notes J^ — Wliere an
indictment on 41 Geo. 3, c. 57, s. 2,
stated that the prisoner knowingly
and without any authority from a
certain corporate company called,
<&c., had in his custody a certain
plate on which was engraved part
of a promissory note, purporting to
be the promissory note of the com-
pany ; and it appeared that this
company carried .on the business of
bankers, although incorporated for
a totally different purpose : — IJeld,
that the indictment was bad, hav-
ing omitted to aver that the com-
pany " carried on the business of
bankers." Hex v. Catapodi, R. &
R. C. C. 65.
A bank post-bill cannot, in an
indictment for forging and uttering,
be described as a bill of exchange ;
but it may be describe(> as a biik
bill of exchange. Hex v. BirhU,
R. ifc R. C. C. 251.
Upon Bills and Notes.l^ — A count
charging a prisoner with uttering a
forged bill, with intent to defraud
A., and setting out the bill with
the acceptance upon it, is not sup-
ported by proving that the prisoner
uttered the bill, and that the accept-
q,nce on it was a forgrery. Hex v.
HoTweU, 6 C. & P."l48 ; 1 M C.
C. 405.
An indictment, charging that
the defendant, having in liis passes-
sion a bill of exchange, purporting
to be directed to one J. King, by
the name and description of J.
Ring, forged the acceptance of tbe
said J. ^^ng, is bad, because the
INDICTMENT.
217
worfl " purport" means what ap-
peal on the face of the Instrument,
and the bill did not purport to be
drawn on J. King. Rex \, liead-
ing^ 1 East, 180, n.
Id an indictment for forgery, a
count which, since 11 Greo. 4 & 1
Wilh 4. c. 66, charged, that the
prisoner "did &lsely make, forge
and counterfeit, and did cause and
procure to be falsely made, forged
and counterfeited, and did willingly
act and assist in tlie false making,
forging and counterfeitmg" a bill
of exchange, was good ; as were
counts charging that he did utter
and publish as true, and did after
dispose of and put away the bill.
Ret yf. Brewer, 6 C. & P. 363—
Park.
An indictment for forging a bill
of exchange, stating it to be signed
by H. II. instead oi purporting only
to be so signed, the signature itself
being a forsjery, is bad. Rex v. Car-
ter, 2 East^ P. C. 985.
An indictment on 2 Geo. 2, c. 25,
charging that the prisoner felonious-
ly altered a bill by making, forg-
ing and adding a cipher, was good,
though the words of the statute
▼ere, " if any person shall falsely
make or forge, counterfeit, &c.
Sex V. Elswarth, 2 East. P. C. 986,
In an indictment for forging a
ppomLssorv note, the forged note
might, under 2 & 3 Will. 4, c. 123,
8. 3, be described as " a certain
forged promissory note, for the pay-
ment of 29/.," without stating the
date. Rex v. Burgiss, 1 Q. & P.
490— Littledale.
On Foreign Notes or BilUi\ — An
indictment for uttering a forged
bill of exchange set out as follows :
--" k 4 mois de date par cette let-
trede change, k I'ordre de nous-
m^me la somme de 500 livres ster-
ling,"— and translated, — " at four
months' date by this bill of ex-
change, to the order of ourselves,
the sum of five hundred pounds
sterling," is good. Rex v. Szudur-
itw, 1 M. C. C. 429.
FiBH. Dig.— 16.
Where a prisoner was convicted
of forging an instrument (purport-
ing to be a Prussian note) m a for-
eign language, but no count in the
indictment contained an English
translation of the note : judgment
was ordei'ed to be arrested. Rex
V. Goldstein y 7 Moore, 1 ; 10 Price,
88 ; 3 B. & B. 201 ; R. & R. C. C.
473.
Sewing to the parchment on
which the in&ictment is written im-
pressions of forged notes taken from
engraved plates, is not a legal
mode of setting out the notes in the
indictment. Hex v. Harris^ 7 C.
& P. 429.
Foreign notes were set out in an
indictment in the original language,
but the translation omitted some
words which were in the margin or
a border round the body of the
note, and denoted the year in which
the notes were issued., and it ap-
peared that without these words
the notes would not be capable of
being circulated in the country to
which they belonged : — Held, that
the translation was imperfect. lb.
Describing a foreign note wholly
in the English language is not suffi-
cient in an indictment for forgery,
notwithstanding the 2 <fo 3 Will. 4,
c. 123, s. 3; but this objection, pro-
vided the description was in the
words of the statute creating the
oftence, could only be taken advan-
tage of by demurrer, and is cured
after verdict by 7 Greo. 4, c. 64, s.
21. lb.
An indictment under 11 Geo. 4 &
1 Will. 4, c. 66, s. 19, for felonious-
ly having in possession plates upon
which were engraved a promissory
note for payment of money of a for-
eign prince, inaccurately setting out
the note in the foreign language
and the translation, and with fac-
similes of the note not engrossed in
the indictment, but attached there-
to on paper, was bad. Rex v. War-
shaner, 1 M. C. C. 466.
Counts under 2 & 3 Will. 4, c.
123, 8. 3, stating the plates to have
218
FORGERY.
engraved on them, in the Polish Ian-
guage, a promissory note for pay-
ment of money, to wit, for the pay-
ment of live florins, purporting to
be a promissory note for payment
of money of a certain foreign prince,
without stating the value, were good
after verdict. lb.
An indictment under 11 Greo. 4
& 1 Will. 4, c. 66, for uttering a
forged foreign promissory note,
needs not allege it to be payable in
England. Reg. v. Z««, 2 M. <fe Rob.
281— Coleridge.
Upon Bonds.'] — A superfluous de-
scription of the instriunent forged is
not material. Therefore an indict-
ment for forging a bond, laying it
to be " a bond and writing obliga-
tory," was ffood upon 2 Geo. 2, c.
25, though both terms were used in
the statute ; and a bond is a writing
obligatory, though the converse
does not hold generally. Rex v.
Dunnett, 2 East, P. C. 985 ; 2 Leach,
C. C. 581.
Since 14 & 15 Vict. c. 100, s. 8, it
is sufficient, upon an indictment for
forgery and utteiing a bond, to lay
the intent generally to defraud; and
the prisoner may be convicted,
though it does not appear that he
had any intention ultunately to de-
fraud the party whose signature he
had forged, he having defrauded
the party to whom he uttered the
instrument. Reg. v. Trenjleld^ 1 F.
& F. 43— ChanneU.
Upon Deeds.'] — A count for utter-
ing a forged deed described it as
" a certam deed purporting to be
made on the first day of March,
1837, between R. W. of the one
part, and D. G. of the other part,
purporting to be an under lease by
the said K. W. to the said D. G. of
certain lands, tenements and premis-
es therein mentioned, subject to the
payment of the yearly rent of 8Z.,
payable on the first day of March
m every year, and purporting to
contain a covenant by the said D.
G. with the said R. W. for the pay-
ment by the said D. G. to the sud
R. W. of tfie vearly rent of 8/.," is
good, under 2 & 3 Will. 4, c. 128,
s. 3. Reg. v. Davies^ 9 C. & P.
427 ; 2 M. C. C. 177.
A count for foiling or uttering a
deed, purporting to be a lease of
certain premises, described shortly,
is good, without setting it out ver-
batim. lb.
The instrument forged may be
described as a deed, without setting
it out, or averring facts to shew
that it was such a deed as might be
t!he subject of larceny. Seg, t.
ColUns, 2M.& Rob. 461— Rolfe.
Upon Receipts.] — "As follows"
is a sufficient averment of the t^or
of a forged receipt. Rex v. /Wrf,
2 W. Bl. 787 ; 1 Leach, C. G. 77;
2 East, P. C. 976.
A receipt, signed by the captab
of a detachment, on the authority
of which money is received from an
army agent, on account of the
monthly subsistence of such detach-
ment, might be properly described
as a receipt for money, under 2 A S
Will. 4, c. 123, s. 3, although it ap.
peared that such instruments were
frequently cashed, upon indorsement,
by tradesmen in the neighbourhood
of the place where the regiment was
stationed, and the amount after-
wards received by them of the army
agent. Rex v. Rice, 6 C. <fc P. 684;
S. P., R^ V. Hope, 1 M C. C. 414
An indictment for forging a re-
ceipt in the following form : — "" 6th
January, 1830. m. 15s. M. For
the high constable James Hughes,"
does not require explanatory aTer-
ments. Reg, v. Boardman^ 2 3L <fe
Rob. 147 ; 2 Lewin, C. C. 181— Al-
derson.
A count charging the uttering *
forged receipt smaply is good. -B«
V. Martin, 1 M. C. C. 488 ; 7 C. 4
P. 549.
An indictment charging tJiat a
precept had been issued to Christo-
pher Hindle, high constable of B.,
to collect 21/. 11<. 4(;., and that a
INDICTJVIENT.
21
receipt for 21/. 11«. 4d, had been
forged, by falsely cementing to the
precept, at the foot, a receipt in the
handwriting of Henry Hargreaves,
of the tenor following : — " 1825, re-
ceived H. H.," — which had before
then been written by Hargreaves for
other money, and that the prisoner
uttered it with intent to defraud
Hargreaves, is bad, because there
ui notliing to shew what the initials
H. H. meant, and nothing to shew
what connexion Hargreaves had
with Hindle, or with the receipt.
Sex V. Barton, 1 M. C. C. 141.
An indictment for uttering a forg-
ed receipt for naoney, which sets
out the receipt in terms, need not
set forth the bill of items to which
the receipt refei-s, as that is matter
of evidence. Hex v. Testtck, 2 East,
P.C. 925 ; S, P., Bex v. Thompson,
i Leach, C. C. 632, n. ; 1 East, 181,
a
An indictment on 7 Geo. 4, c. 16,
Sw 38, charging the prisoner with
having forged and uttered " a cer-
tain receipt relating to and concern-
ing the ])ayment of a certain pen-
non, to s^it, 41. lis, O^d., 6upix)sed
to be payable to one N. M., as an
outpensiouer of the Royal Hospital
for Soldiers at Chelsea, in the county
of Middlesex : " is good. Eec/, v.
Pringle, 9 C. & R 409 ; 2 M. C. C.
127.
Upon liequests. Orders or Warrants
for Delivery of Goods,] — A count in
an indictment for forging a request
for the delivery of goods, which de-
scribed the forged instrument as
" a certain forged request for tlie
delivery of gocSs to one J. li.,"
was good under 2 & 3 Will 4, c.
123, 8. 3, and was not too general.
%. V. Hobson, 9 C. & P. 423.
A forged request, to be within 1 1
Geo. 4 <fc 1 Will. 4, c. 66, s. 10,
must import on the face of it to be
a request; and if the words have
not necessarily that eifect, but are
80 understood in the trade, there
must be an innuendo to explain
them. Bex v. OuUen, 1 M. C. v
300; 5 C. &P. 116.
A request for the delivery of
goods may be so described in an in-
dictment for forgery, without set-
ting it out verbatim. lieg, v. Hoh-
son, 2 M. C. C. 182.
If an indictment for* forgery sets
out a forged instrument in hsec ver-
ba, descnbiug it as a warrant, or-
der and request for the delivery of
goods, it is not necessary, in order
to sustain the indictment, that the
instrument should answer all the
terms of that description. Jieff, v.
WiUiams, 4 Cox, C. C. 356 ; 2 Den.
a C. 61 ; 14 Jur. 1052 ; 20 L. J.,
M. C. 106.
A count in an indictment for
forgery alleging the forgery gener-
ally to be of a certain warrant and
order for the delivery of goods with-
out more particularity, is sufficient.
Reg. V. Smith, 2 Cox, C. C. 358.
Upon Warrants or Orders for
Payment of Money,'] — A prisoner
was indicted on 2 <fc 3 Will. 4, c.
123, s. 3, for forging a warrant for
the payment of money. The forged
paper was as follows : — " This is to
satisfy that R. R. as swept the flues
and cleaned the bilges, and repaired
four bridges of the Princess Victoria,
(signed) J. N., Al 10«. Oc?." Itwas
proved that, by the course of deal-
ing between the parties, this vouch-
er, if genuine, would have author-
ized L. & Co. to pay Al. 10s. Oc?. : —
Held, that it is not necessarv that a
warrant for the payment of money
should be addressed to any particu-
lar person ; and that, as it appeared
that this document, if genuine,
would liave been a voucher for the
payment of the money mentioned in
it, that was a sufficient proof of the
allegation that it was a warrant for
the payment of money. Eeg, v.
Mogers, 9 Q. & P. 41.
A forged authority to draw mon-
ey, which is well described as a
warrant, is not an order for the pay-
ment of the money, and an indict-
220
FORGERY.
ment describing such a forged au-
thority for the payment of money
as a warrant and order, is bad.
Reg, V. Dixon, 3 Cox, C. C. 289—
Alderson.
An indictment which charges a
forged, cheque to be " a warrant and
order for the payment of money,
which warrant and order are in the
words and figures following," is
food. Rex V. Orowther, 5 C. <fc P.
16 — Bosanquet.
Indictment for forging an order
for relief to a discharged prisoner,
under 3 Geo. 4, c. 85, being in
many instances ungrammatical and
at variance from the act : — Held,
bad. Rex v. Donnelly, 1 M. C. G.
438.
An indictment for presenting a
forged order to W. L., treasurer,
&c., pretending it was genuine, and
obtaining from him under it 41, 10s,
6rf., after charging that the prisoner,
with intent to cheat the treasurer,
presented the order, and that he
Knowingly, <fcc., pretended it was a
genuine order, proceeded — " and so
the jurors, &c.,«6ay that the prison-
er, on the day and year, &c., did ob-
tain the said sum of il. 10«. 6c?.";
but the intent to cheat and defraud
W. L. was not stated in that part
of the indictment, nor was the ob-
taining charged to have been effect-
ed knowingly and designedly : —
Held, bad. Rex v. Rv^hworih, R. &
R. C. C. 317 ; 1 Stark, 396.
Upon Wills, 1 — An indictment for
forging a paper writing purporting
to be the will of A. is good. Rex
V. Birch, 2 W. Bl. 790; 1 Leach,
C. C. 79 ; 2 East, P. C. 980.
Other Instruments,] — A count
which, without an inducement,
charging that the piasoner "did
forge a writing, as a certificate of
W. N., with intent to deceive and
defraud W. P. and others," is goo^.
Reg, V. Toshack, IS Jur. 1011 ; 1
Den. C. C. 492.
7. Allegation and Proof of IntetU to
defraud.
By 24 & 25 Vict. c. 98, s. 44,
" it shall be suflicient in any indict
" ment for forging, altering, otter-
" ing, offering, disposing of^ or put-
" ting off any instrument whatso-
" ever, where it shall be necessary
" to allege an intent to defraud, to
" allege that the party accused did
" the act with intent to defraud,
" without alleging an intent to de-
" fraud any particular person ; and
" on the trial of anv such offence it
" shall not be necessary to prove an
"intent to defraud any particular
" person, but it shall be sufficientto
" prove that the party accused did
" the act charged with an intent to
'• defraud." (Similar former enad-
ment, 14 <fc 15 Vict, c. 100, s. 8.)
Since 14 & 15 Vict. c. 100, s. 8,
there must be proof of an intent to
defraud some person, in order to
support the indictment for forgery,
though it need not be alle^yed that it
was done with intent to Sefraud i
particular person. Reg. v. Hodgson^
Dears. & B. C. C. 3 ; 2 Jur., N. S.
453 ; 25 L. J., M. C. 78.
It is only necessary to aver a gen-
eral intent to defraud A. B., with-
out setting out the manner in whiA
that fraud was to be effected. Ba
V. PoweU, 2 W. Bl. 787 ; 1 Leach,
C. C. 77 ; 2 East, P. C. 976.
It is suflicient, upon an indictment
for forgery and uttering a bond, to
lay the intent generally to defraud ;
and the prisoner may be convicted,
although it does not appear that he
had any intention ultimately to de-
fraud the party whose signature he
had forged, he having defrauded
the party to whom he uttered the
instrument. Reg. v. Trenfield, 1 F.
& F. 43— Channell.
The words " with intent," in an
indictment for forgery, apply to the
verb to which the prisoner's name
is the nominative ; therefore, a count
which states that the prisoner did
forge a promissory note for 50/. '* <m
ALLEGATION AND PROOF, ETC.
221
which DOte is an indorsement as fol-
lows ;— C. J., with intent to defraud
W. R. S.," sufficiently charges that
the forged note, and not the indorse-
ment, was the thing by which the
prisoner intended to defraud W. R.
S. Rex V. James, 7 C. & P. 553—
Fatteson.
The fact that the prisoner has
gi?en guaranties to his bankers, to
whom he paid a forged note to a
larger amount than the note, does
not so completely negative an at-
tempt to defraud them as to with-
draw the case from the considera-
tion of the jury. Ih,
On the trial of an indictment for
uttering a forged bill of exchange,
if the jury is satisfied that the pris-
oner uttered the bill as a true bill,
meaning it to be taken as such, and
at that time knew it to be forged,
they ought to find, as a necessary
consequence of law, that the prison-
er intended to defraud, and the jury
ou^ht to infer the intent to defraud,
if tnev are satisfied on the two other
points. Reg. v. HilL 8 C. & P.
274.
If a person, at the time he uttered
a bill of exchange with a forged ac-
ceptance on it, knew that accept-
ance to be forged, and meant the
bill to be taken as a bill with a gen-
uine acceptance upon it, the inevit-
able conclusion is, that he intended
to defraud. Reg, v. Cooke^ 8 C. <fe
P. 582— Patteson.
So, it is a consequence, and al-
most a consequence of law, that he
must intend to defraud the person
to whom he pays the bill, and also
the person whose name is used ; as
everything which is the . natural
consequence of the act must be
taken to be the intention of the
prisoner. lb.
A jury ought to infer an intent
to defraud the person who would
have to pay a forged instrument if
it was genuine, although from the
manner of executing a forgery, or
from that person's ordinary caution,
it would not be likely to impose on
him, and although the object was
generally to defraud whoever might
take the instrument, and the inten-
tion of defrauding in particular the
person who would have to pay the
mstrument if genuine did not enter
into the prisoner's contem]ilation.
Rex V. Mamgora, R. & R. C. C. R.
291.
In forgery it Ls not required, in
order to constitute in point of law
an intent to defraud, that the party
committing the offense should have
had present in his mind an intention
to defraud a particular person, if
the consequences of his act would
necessarily or possibly be to defraud
any person; but there must at all
events be a possibility of some per-
son being defrauded by the forgery.
Re(j. V. Marcus, 2 C. & K. 356 —
Cresswell.
A prisoner asked his employer to
give him 4/. to buy " settledated
striking acid," to be used in the
employer's tanning business, which
the prisoner superintended ; the em-
ployer gave him the money, and
about four days after the prisoner
delivered to his employer a forged
receipt for the 4/., which purported
to come from a finn of whom the
acid had been bought : — Held, that
proof of these facts was sufiicient
evidence of uttering the forged re-
ceipt with intent to defraud the
employer. Rex v. Martin, 7 C. <fc
P. 549 ; 1 M. C. C. 483.
On a charge of uttering a receipt
with intent to defraud, the uttering
being to the employer, and he ap-
peanng to have been indebted to
the pnsoner at the time, negatives
the intent to defraud, fief/, v.
Bradford, 2 F. & F. 859— Erie.
Where, on the trial of a prisoner
for forging a note, it appeared that
he had kept the note m his posses-
sion, and never uttered or attempt-
ed to make any use of it : — Held,
whether the note was made in-
nocently, or with intent to defraud,
was for the consideration of the
jury, and to be collected from the
222
FORGERY.
facts proved. Hex v. Crocker^ R»
& R. C. C. 97; 2 N. R. 87; 2
Leach, C. C. 987.
Uttering a forged stock receipt to
a person who employed the prisoner
to buy stock to that amount, and
advanced the money, is sufficient
evidence of an intent to defraud
that person; and the oath of the
person to whom the receipt was
uttered, that he believed the pris-
oner had no such intent, will not
repel the presumption of an intention
to defraud. Hex v. Sheppardy 1
Leach, C. C. 226; 2 East, P. C.
967 ; R. & R. C. C. 169.
Tlie intent to defraud the bank
constitutes the offence of feloniously
disposing of and putting away
counterfeit bank-notes, and it is not
done away by the circumstance
that the notes were furnished by
the prisoner in consequence of an
application made by an agent em-
ployed thereto by the bank, and
that they were delivered to him as
forged notes, for the purpose of
being disposed of by that agent.
Reo) V. Ilolden^ 2 Taunt. 334.
Where a forged request for the
delivery of goods was addressed in
her maiden name to a female, who
prior to the date of it had married :
— Held, that the party uttering it
might properly be convicted, on an
indictment charging the intent to
be to defraud the husband. Rex v.
Carter, 7 C. & P. 134.
If a banker authorized to pay a
sum of money to three persons in
particular, and to them only, pays
it to one of them and two strangers,
who personate the other two, his
liability continues, and the false
instrument upon which the money
was obtained may be charged to
have been made with intent to de-
fraud them . Dixofi^s ccbse, 2 Lewin,
C. C. 178— Patteson.
8. Jtirisdiction to try.
By 24 & 25 Vict. c. 98, s. 41,
" if any person shall commit any
" offence against this act, or shall
commit any offence of forgir^ or
altering any matter whatsoever, or
of offering, uttering, disposing o^
or putting off any matter whatso-
ever, knowing the same to be
forged or altered, whether the
offence in any such case shall be
indictable at common law, or by
virtue of any act, passed or to be
passed, every such offender mav
be dealt with, indicted, tried, am
punished, in any county or place
in which he shall be apprehended
or be in custody, in the game
manner in all respects as if his
offence had been actually com-
mitted in that county or place;
and every accessory before or
after the fact to any such offence,
if the same be a felony, and every
person aiding, abetting, or coun-
selling the commission of any
such offence, if the same be a mis-
demeanor, may be dealt with,
indicted, tried, and punished, in
any county or place in which he
shall be apprehended or be in
custody, in the same manner in
all respects as if his offence, and
the offence of his principal, had
been actually committed in sach
county or place." {Similar to 11
Geo. 4 & 1 Will. 4, c. 66, s. 24,
repealed,)
By s. 50, " all indictable offences
mentioned in this act which sbJl
be committed' within the jiuisdic-
tion of the Admiralty of Engbuid
or Ireland shall be deemed to be
offences of the same nature and
liable to the same punishmeuts as
if they had been committed upon
the land in England or Ireland,
and may be dealt with, inquired
of, tried, and determined in any
county or place in England or
Ii'eland in which the offender
shall be apprehended or be in
custody, in the same manner in all
respects as if they had been actually
committed in that county or place;
and in any indictment for any
such offence, or for being an ac-
cessory to such an offence, the
UTTERING.
223
" venue in the margin shall be the
" same as if the offence had been
"committed in such county or
"place, and the offence shall be
"averred to have been committed
" on * the high seas* : provided that
"nothing herein contained shall
" alter or affect any of the laws re-
"lating to the government of her
"Majesty's land or naval forces."
By 5 & 6 Vict. c. 38, " the offence
" of forgery cannot be tried at quar-
" ter sessions."
On an indictment for forgery at
common law, it is not necessary to
prove that the party charged was
in custody before the time of the
trial, in order to give jurisdiction
nnder 1 1 Geo. 4 & 1 Will. 4, c. 66,
81 24. Beg. V. Smokies, T. & M.
190; IDen. C. C. 498; 19 L. J.,
M. C. 31 ; 4 Cox, C. C. 94 ; 13 Jur.
mi,
A verdict, in such case, of guilty
of foT^g, but there is no evidence
of its having been done within the
jurisdiction of the court, amounts
to a conviction. lb.
Where a prisoner was tried for
foi^ery in the county where he was
in custody, under 11 Geo. 4 <fe 1
Will 4, c. 66, 8. 24, the forgery
might be alleged to have been com-
mitted in that county, and there
need not be any averment that the
prisoner was in custody there. Hex
r, James, 7 C. & P. 553— Patteson.
9. Election of Forgeriea, •
The bank of England having pre-
ferred several indictments for utter-
ing and having in possession, in re-
spect of the same note, and having
elected to proceed on the indictment
for having in possession : — Held,
that although facts sufficient to
snpport the capital charge were
made out in proof, an acquittal for
the minor offence ought not to be
directed, because the whole of the
Diinor offence was proved, and it
did not mei^e in the larger. Anon,,
R. & R. C. C. 378.
The bank might elect to proceed
on an indictment for a lesser of-
fence, although an indictment had
been found fcr a capital charge in
respect of forging the same note.
lb.
On a count for uttering several
forged receipts, the court will not
put the prosecutor to his election on
which receipt to proceed, if they be
all uttered ^t the same time. Rex
V. Thomas, 2 East, P. C. 934.
10. Uttering.
What w.] — ^Putting a letter into
the Manchester post-office, contain-
ing a forged instrument, is an utter-
ing in the county of Lancaster, and
the post-mark is evidence of such an
uttering. PerkirCs case, 2 Lewin,
C. C. 150— Park.
Uttering in England a forged
note, payable in Ireland only, was
within the forgery acts prior to 11
Geo. 4 & 1 Will. 4, c. 66. Hex v.
KirJcwood, 1 M. C. C. 311.
The uttering a bill with a genuine
indorsement, under pretence of be-
ing the indorser, will not subject
the party to an indictment as for
uttering a forged instrument, as it
is only a misdemeanor. Rex v.
Hevey, R. & R. C. C. 407, n.; 2
East, P. C. 556, 856 ; 1 Leach, C.
C. 229.
Forging a bill payable to the
prisoner's own order, and uttering
It without an indorsement as a se-
curity for a debt, is a complete
offence, if done with a fraudulent
intent, the bill having been issued
to obtain credit, though as a pledge
only. Rex v. Birkett, R. & R. C.
C. 86.
9n an indictment for forgmg a
scrip receipt, it must appear that
the receipt was signed subsequently
to the passing of the statute on
which the indictment is founded;
but though signed before, yet, if it
was uttered after the passing of the
act, the prisoner may be convicted
on the count for uttering it, know-
ing it to be fdrged. Rex v. ReeveSy
2Leach, C. C. 808, 814.
224
FORGERY.
Shewing a man an instrument,
the uttering of which would be
criminal, though with an intent of
raising a false idea in him of the
party's substance, is not an uttering.
JRex V. Shvkard, R. & R. C. C. 200.
Nor- will the leaving it after-
wards, sealed up, with the person
to whom it was shewn under cover,
that he may take charge of it, as
being too valuable to be carried
about, be an uttering. Ih.
The offence of disposing and put-
ting away forged bank-notes is com-
plete, although the person to whom
they are disposed was an agent for
the bank to detect utterers, and ap-
plied to the prisoner to purchase
forged notes, and had them deliver-
ed to him as forged notes, for the
purpose of disposing of them. Rex
V. ffolden, R. & 11. C. C. 154; 2
Leach, C. C. 1019; 2 Taunt. 334.
A bill was addressed to Messrs.
Williams <fc Co., bankers, Birchin
Lane, London, and there might, at
that time, have been a 3 on the
lower left-hand comer of the bill ;
the prisoner was asked at the time
whether the acceptors wer^ Will-
iams, Birch & Co., and his answer
imported that they were. Wiliams,
Birch & Co. lived at No. 20,
Birchin Lane, and it was not their
acceptance. There were no other
known bankers in London using
the style of Williams & Co. : but
at No. 3, Birchin Lane, the name of
" Williams & Co." was on the door;
and some bills addressed to Messrs.
Williams & Co., bankers, Swansea,
had been accepted, payable at No.
3, and had been paid there. There
was no evidence who lived at No.
3, but another bill of the same tenor
as that in question, drawn by the
prisoner, had been accepted there :
— Held, that on these facts he was
improperly convicted of uttering a
forged acceptance, knowing it to
be forged. Rex v. WattSy li. & R.
C. C. 436 ; 3 B. & B. 197 ; 6 Moore,
442.
If a person knowingly delivers a
forged bank-note to another, who
knowingly utters it accordingly, the
Erisoner, who delivered such note to
e put oif, might have been con-
victed of having disposed and put
away the same, on 15 Geo. 2, c. 18,
s. 11. Rex V. Palmer y R, & R. C.
C. 72 ; 1 N. R. 96; 2 Leach, C.C.
978.
Uttering a forged bill of ex-
change, purporting to be payable
to the drawer's order, with intent
to defraud, is a complete offence,
although there is no indorsement
upon it importing to be the draw-
er's. Rex V. Wicks, R. & R. C.
C. 149.
If a person presents a bill of ex-
change for payment, with a forged
indorsement upon it of a receipt by
the payee, ana the clerk to whom
he presents it objects to a variance
between the spelling of the payee*?
name in the bill and the indorse,
ment, upon which the person alters
the indorsement into a receipt by
himself for the payee : semble, that
the act of presenting the bill to the
clerk previously to his objection is
sufficient to constitute the offence
of uttering the forged indorsement*
Rex V. Arscott, 6 C. Jfc P. 408.
If an engraving of a forged note
is given to a party as a pattern or
as a specimen of skill, the party
giving it not intending that the
particular note sliould be put in
circulation, it is not an uttering.
Rex^x. Harris, 7 C. & P. 428-
Littledale.
Where a prisoner, charged with
uttering a forged note to A., know-
ing it to be forged, gave forged
notes to a boy who was imiorant of
that fact, and directed him to ]^y
away the note mentioned in the in-
dictment at A.'8 for the purcba«
of goods, and the boy did so, and
brought back the goods and the
change to the prisoner : — Held, that
it was an uttering by the prisoner
to A. Rex V. Oiles, Car. C. L. 191;
1 M. C. C. 166.
If A. exhibits a forged receipt to
EVIDENCE.
225
6., a person witph whom he is claim-
ing credit for it, this is' an uttering,
although A. refuses to part with
the possession of the paper out of
. his hand. Reg, v. JRadford^ 1 C.
AK707; 1 Den. C. C. 59.
On a trial for uttering a forged
note scienter, the admissibility of
eridence of other utterings is not
affected by Reg. v. Oddy^ 2 Den.
C. C. 264. Reg. v. Green, 3 C. &
K 209— Cresswell.
The prisoner placed a forged
receipt for poor-rates in the hands of
the prosecutor for inspection only,
in order, by representing himself as
a person who had paid his rates,
fraadalently to induce the prose-
cutor to advance money to a third
person :— Held, that this was an
uttering. R^g. v. Ion, 2 Den. C.
C. 475 ; 16 Jur., 746 ; 6 Cox, C. C.
1.
Upon proceedings before justices
against a pawnbroker, under 39 &,
^ Geo. 3, c. 99, s. 14, he deliver-
ii^ to them, through the hands of
his attorney, a false and fabricated
duplicate of goods that had been
pledged with him, is an uttering by
the pawnbroker. Reg, v. Fitchte,
Dears. & B. C. C. 175 ; 3 Jur., N. S.
419;26L. J., M. C. 90 ; 7 Cox,
C. C. 257.
CondiHanal.'] — A conditional ut-
tering of a forged instrument is as
much a crime as any other uttering.
Where a person gave a forged ac-
ceptance, knowing it to be so, to
the manager of a banking company
where he kept an account, saying,
that he hoped this bill would satis-
fy the bank as a security for the debt
he owed, and the manager replied
that that would depend on the result
ofinqniri^ respecting the acceptance :
—Held, a sufficient uttering. Reg.
V. Cooke, 8 C. & P. 582— f atteson.
Joint Uttering.'] — ^Where three
were jointly indicted for feloniously
iisin^ plates, containing impressions
of forged notes : — Held, that the
FfaH. Dig.— 17.
jury must select some one particu-
lar time after all three had become
connected, and must be satisfied,
in order to convict them, that at
such time they were all either pres-
ent together at one act of using, or
assisted in such one act, as by two
using, and one watching at the
door to prevent the others being
disturbed, or the like ; and that it
was not sufficient to shew *that the
parties were general dealers in forg-
ed notes, and that at different times
they had singly used the plates,
and were individually in possession
of forged notes taken from them.
Rex V. Harris, 7 C. & P. 416.
V. was indicted for uttering forg-
ed post-office money orders. H.
and S. were joined in the indictment,
And convicted. They had gone to
the shop where V. uttered the or-
ders, remaining outside in a cab so
situated that they could not see or
be seen by the people in the shop^
They had previously accompanied
V. to another shop, where he failed to
get change for the orders, and they
assisted him in taking away the
goods obtained at the second shop :
— Held, that though they were not
in the cab for the purpose of taking
part in aiding or assisting in the act-
ual act of uttering, they were right-
ly convicted. Reg. v. Vanderstein,
16 Ir. C. L. R. 574 ; 10 Cox, C. C.
177 (Ir. C. C. R.).
11. Evidence.
I^oduction of Instrument.! — If,
on an indictment for forgery oeing
presented to the grand jury, it ap-
pears that the forged instrument can-
not be produced, either from its being
in the hands of the prisoner, or from
any other sufficient cause, the grand
jury may receive secondary evidence
of its contents. Rex v. Hunter, 8
C. & P. 591---Park.
On an indictment for forgery be-
ing presented to the grand jury, a
witness decUned to prodiice certain
deeds before them : — Held, that, if
the deeds formed a part of the evi-
226
FORGERY.
dence of the witness's title to his
own estate, he was not compellable
to produce them, but that, if they
did not, the grand jury might com-
pel their production. Tb,
On an indictment for uttering a
forged deed, it appeared that the
de^ alleged to have been forged
was produced in evidence by the
prisoner's attorney on the trial of
an ejectment, in which the prisoner
was lessor of the plaintiff; and
that, after the trial, it was returned
to the prisoner's attorney : — ^Held,
that, if the prisoner did not produce
the deed, he having had notice to
produce it, secondary evidence
might be given of its contents, with-
out calling his attorney to prove
what he had done with the deed.
If, as secondary evidence of the con-
tents of the deed, the draft is given
in evidence, and in the draft words
are abbreviated, which, in the set-
ting out of the deed in the indict-
ment, are put in words at length,
it will be for the jury to say wheth-
er they think that the words abbrevi-
ated m the draft were inserted at
length in the deed itself. Rex v.
Hunter, A: C. & P. 128— Vaughan.
If a forged deed is in the posses-
sion of a prisoner, who is indicted
for forging it, the prosecutor is not
entitled to give secondary evidence
of its contents, unless he has, a reas-
onable time before the commence-
ment of the assizes, given the prison-
er notice to produce it ; and a no-
tice given to the prisoner during
the assizes is too late ; but if the
prisoner has said that he has de-
stroyed the deed, no notice to pro-
duce it will be necessary. Rex v.
Bawarth, 4 C. &. P. 254— Parke.
Quaere, whether a forged docu-
ment intrusted by the prisoner to
an attorney, as an attorney, can be
produced on the trial for ikxe foi^-
ery ? Reg. v. Tylney, 1 Den. C. C.
819; 18 L. J., M, C. 36.
Stamping.l — On an indictment
for forging a bill of exchange the
bill may be given in evidence, al-
though it is not stamped. Rex y.
Ifawkeswood, 1 Leach, C. C. 257 ; 2
East, P. C. 955 ; 2 T. R. 606, n. ; S.
P., jBeaj V. Jforton, 2 East, P. C. 955 ;
1 Leach, C. C. 259, n. ; S. P., 17 &
18 Vict. c. 83, s, 27.
To impUeate or connect,^ — In caw
of forging and uttering a foiged
bill, a letter written by the prisoner
to a third person, saying that such
person's name is on another bill,
and desiring him not to say that
that bill IS a forgery, is receivable
in evidence to shew guilty knowl-
edge ; but the jury ought not to con-
sider it as evidence that the other
bill is forged, unless such bill is pro-
duced, and the forgery of it proved
in the usual way. Rex v. Forbes, 7
C. & P. 224.
A. was charged with a foigeiy,
and B. was examined on oat^ be-
fore the magistrate as a witoen
against A ; after this B. was him-
self charged with a different foTgerr:
— Held, that the deposition of R
was evidence against him on his
trial for the forgery, notwithstand-
ing it was taken on oath. Rex v.
miworth, 4 C. & P. 254— Parke.
On an indictment for uttering a
forged bill of exchange, the judg«
will hear evidence of all the ^Kta
which form parts of one continued
transaction relating to the uttering
of the bill, and will not press the
prosecutor to elect what particular
fact he means to rely upon as the
uttering, till the case for the prose-
cution 18 closed. Rex v. Bart, 7 C.
& P. 652— Littledale.
On the trial of a indictment for
forgery of the acceptance of a bill
of exchange, evidence of what the
prisoner said respecting other bills
of exchange which are not in evi-
dence, is not admissible. jRe^. ^*
Cooke, 8 C. & P. 586— Pattesan.
But see Reg. v. Brown, 2 F. A F.
559 — Crompton.
The examination of a person ta)c-
en on oath as a witness brfore Com-
EVIDENCR
227
missioiiers of Bankruptcy, is admi&-
nblc against him on a charge of
forcery, he having been cautioned
and allowed to elect what questions
he would answer. Reg, v. WhecUer,
2 Lewin, C. C. 157 ; 2 M. C. C. 45.
On an indictment for forging a
bank-note, a letter purportmg to
oome from the prisoner s brotlier,
and left by the postman pursuant
to its direction, at the prisoner's
lodging, after he was apprehended
and during liis confinement, but
never actually in his custody, can-
not be read in evidence against him
on his trial. JRex v. Buet, 2 Leach,
C. C. 820.
Where a prisoner utters an instru-
ment with a forged indorsement or
other writing, and a short time pre-
viously the instrument is shewn to
have been in his possession without
such indorsement, there is some
evidence of forgery, although there
is no proof of the indorsement be-
ing in the prisoner's handwriting,
or if it is even shewn that he is un-
able to write. Jieff. v. James, 4
Cox, C. C. 90— Erie.
On an indictment for forgery, it
appeared that the prisoner, on the
discovery of tlie forgery, being sus-
pected, was asked to write his
name, for the purpose of compari-
son, and did so : — Held, that this
s^nature was not admissible on
the part of the prosecution for that
purpose. Heff. v. Aldridge, 8 F. &
F. 781— Wightman.
Uttering a forged order for the
payment of money under a false
representatign is evidence of know-
ing it to be forged. Rex v. aS^c^^-
{wrf, 1 Leach, C. C. 226 ; 2 East,
PC. 967; R. &R. C. C. 169.
Of GuiUy Knowledge,'] — ^Upon an
indictment for disposing of and put-
ting away a forged bank-note know-
ing it to be forged, the prosecutor
niay give evidence of other forged
notes having been uttered by the
prisoner, in order to prove his
Knowledge of the forgery. Rex v.
Wylie, 1 N. R. 92 ; S, C. nom.
Rex V. WhiUy, 2 Leach, C. C. 983 ;
S, P., Rex V. TattersaUy 1 N. R. 93,
n.
So proof that the prisoner had
in his possession other bills or notes
of the same kind is admissible.
Rex V. Hough, R. & R. C. C. 120.
So proof that he pointed out
where such others were hidden.
Rex Y, Rowley, Bayl. Bills, 448.
If the possession of other forged
instruments is offei*ed in evidence
to prove a guilty knowledge, there
must be regular evidence that such
instruments were forged ; proof
that the prisoner returned the mon-
ey on such an instrument, and re-
ceived the instrument back, is not
sufficient without producing the in-
strument or duly accounting for its
non-production. Rex v. MiUard,
R. & R. C. C. 245.
Upon an indictment for uttering
a forged note, evidence is admissi-
ble of the prisoner's having, at a
prior time, uttered another forged
note of the same manufacture ; and
also that other notes of the same fab-
rication had been found on the files
of the bank, with his handwriting on
the back of them, in order to shew
his knowledge of the note mention-
ed in the indictment being a forg-
ery. Rex V. BaU, R. & R. C. C.
132 ; 1 Camp. 324 ; 2 Leach, C. C.
987, n.
In order to shew a guilty knowl-
edge, on an indictment for uttering
forged bank-notes, evidence of mi-
other uttering, subsequently to the
one chained, is not admissible, un-
less the latter uttering was in some
way connected with the principal
case, or it can be shewn that the
notes were of the same manufac-
ture ; for only previous or contem-
poraneous acts can shew quo ani-
mo a thing is done. Rex v. Tavern-
er, Car. L. 195.
If a second uttering is made the
subject of a distinct mdictment, it
cannot be given in evidence to shew
a guilty knowledge in a former ut-
228
FORGERY.
tering. Bex v. Smith, 2 C. & P.
633— Vaughan.
On an indictment for uttering
forged Polish notes, conversations
"with the prisoners respecting the
forgery and circulation of forged
Austrian notes are admissible to
prove the scienter. Hex v. Harris,
7 C. & P. 429— Williams.
, On an indictment for engraving
or uttering notes of a foreign prince,
evidence of a recent engraving or
uttering notes of another foreign
prince is admissible, in proof of a
fuilty knowledge. JRex v. BaUs, 1
I C. C. 470.
In a prosecution for forging and
uttering a receipt, knowing it to be
forged, it was proposed to give in
evidence other acts of forgery by
the prisoner, against the same pros-
ecutor, as evidence of guilty knowl-
edge, on the count for uttering.
It was objected that they could
only be given in evidence if they
were forgeries, and there was no
evidence of that without first ask-
ing the jury to find them so, which
was not the issue they had to try :
— ^Held, that the whole evidence
must be confined to the document
they were proceeding upon, with-
out at all trenching upon the rules
as to uttering in other cases. JReg,
V. Moore, 1 F. & F. 73— Byles and
Martin.
Upon an indictment for uttering
a forged bill, the previous uttering
of other bills forged in other names
may be given in evidence in proof
of guilty knowledge. JReg, v. Salt,
8 F. & F. 834— Williams.
It is impracticable to lay down
any general rule as to the time
within which such previous utter-
ing must have taken place, in order
to be admissible. Ih,
What IS Possession.'] — ^By 24 &
25 Vict. c. 98, s. 45, " where the
" having any matter in the custody
" or possession of any person is in
" this act expressed to be an offence,
" if any person shall have any
" such matter in his personal cus-
" tody or possession, or shall know-
" ingly and wilfully have any such
" matter in the actual custody or
" possession of any other i)erson, at
" shall knowingly and wilfullr
" have any such matter in any
" dwelling-house or other building,
" lodging, apartment, field or other
" place, open or inclosed, whether
" belonging to or occupied by him-
" self or not, and whether such
" matter shall be so had for his
" own use or for the use or benefit
" of another, every such person
" shall be deemed and taken to
" have such matter in his custody
" or possession within the meaniog
" of this act."
Where, on an indictment on 45
Greo. 8, c.'89, s. 6, for knowingly
and wittingly having in his posses-
sion forged Bank of England notes,
it appeared that the prisoner, being
suspected of having such in his pos-
session, was requested by A. to sell
him some, which he said he would
do, and A. accordingly paid him
for them ; the prisoner then went
out as he said to fetch the notes,
but on his return said, " he had pat
them in an old shoe in a particalar
place," which he described; A.
then went to look for the notes, aDd
the prisoner followed him, bat
whilst A. was looking for them,
the prisoner threw a stone into the
place, and said there they are ; A,
on looking there, found the notefi
in an old shoe : — Held, that the
prisoner had a sufficient possession
within the meaning of the statute.
JRexy. R(ywley, R. & R. C. C, 110.
A. took a bank-note in the course
of his business, which he paid to B.;
the note was afterwards stopped at
the bank as a forged note, and was
brought by an inspector to A., who
immediately paid to B. the amount
of the note, and refused to give H
up to the inspector, insisting on bis
right to retain it, in order to recov-
er the amoimt from the person
from whom he had received it.
The inspector, in the absence of
WITNESSES.
229
all circumstances of suspicion, is
not justified in charang A. before
a magi<^rate with feloniously hav-
ing the note in his possession, know-
ing it to be forged, for the purpose
of compelling him to give up the
note. By possession under the 45
Geo. 3, c. 89, was meant the original
possession of a note acquired in an
illegal mode, and not a subsequent
possession, like the above, where
the original possession was legal.
Brooks V. Warwick, 2 Stark. 389—
Ellenborongb.
12. Witnesses.
By 9 Geo. 4, c. 32, s. 11, "on
" any prosecution by indictment or
"information, either at common
" law or by virtue of any statute,
"against any person for forging
" any deed, writing, instrument or
"other matter whatsoever, or for
"uttering or dL<;posing of any deed,
"writing, instrument, or other mat-
" ter whatsoever, knowing the same
"to be forged, or for being ac-
"cessory before or after the fact
"to any such offence, if the same
"be a felony, or for aiding, abet-
"ting or counselling the commis-
" sion of any such offence, if the
" same be a misdemeanor, no person
" shall be deemed to be an incompe-
" tent witness in support of any such
" prosecution, by reason of any inter-
" est which such person may have or
" be supposed to have in respect of
"any such deed, writing, instru-
"ment or other matter."
To prove the forging of a bank-
note, It is not necessary that the
sluing clerk at the bank should be
produced, if witnesses acquainted
with his handwriting state that the
signature to the note is not in his
handwriting. Anon,, R. & R. C. C.
378.
On an indictment for uttering a
foFj^ will, which, together with
writings in support of it, was sug-
gested to have been written over
pncil marks which had been rub-
oed out, the evidence of an engrav-
er, who has examined the paper
with a mirror, and traced the pen-
cil marks, is admissible on the part
of the prosecution. Heg, v. Wil-
Hams, 8 C. & P. 434— Parke.
On an indictment for uttering a
forged cheque in the name of J. W.,
on Messrs. C. G. & Co., who were
army agents and bankers, evidence
by a clerk in the former department
that he did not know any customer
named J. W., and that he had been
told by the other clerks that there
was not any such customer in the
banking department, is sufficient on
the part of the prosecution to call
upon the prisoner to shew that there
was in fact such a person as J. W.
having an account with Messrs. C.
G. & Co., and in the absence of
such proof, is sufficient by itself for
the jury. Hex v. Brannan, 6 C. &
P. 326— Park, Patteson and Gur-
ney.
13. Power to seize Forged Instru-
ments and Impleniients.
(24 Sr 25 Vict. c. 98, s. 46.;
14. Punishment.
(U 4- 25 Vict. c. 98, ss. 47, 48.;
15. Costs of Prosecution.
By 24 & 25 Vict. c. 98, s. 54,
the court before which any indict-
able misdemeanor against this act
shall be prosecuted or tried may
allow the cost of tlie prosecution
in the same manner as in cases of
felony ; and every order for the
payment of such costs shall be
made out, and the sum of money
mentioned therein paid and repaid,
upon the same terms and in the
same manner in all respects as in
cases of felony.'
u
u
u
u
u
1>
XVin. Government Stobes.
See the Naval and Victualling
Scores Act, 1862, 25 & 26 Vict. c.
64, which repeals sections 1, 2, 4, &
230
GOVERNMENT STORES.
5 of 9 & 10 Will. 3, c. 41 ; 9 Geo.
1, c. 8, ss. 3, 4 ife 5 ; 17 Geo. 2, c.
40, R. 10 ; 39 & 40 Geo. 3, c. 89 ;
54 Geo. 3, c. 60 ; and 55 Geo. 3, c.
127, on which the following cases were
decided.
One became possessed, on the
death of her husband, of can-
vass stores, which liad been pur-
chased by him in his lifetime, at a
public sale, and had been many
years made up into household furni-
ture, but no evidence was given of
anv certificate of such sale beinff
lawful, as required by 9 <fe 10 Will.
3, c. 41, or of any excuse allowed
by the act ; yet the possession being,
by act of law, without fraud ; — Held,
not within the penalty of the stat-
ute. Anon.\ 2 East, P. C. 765.
An indictment under 39 <&; 40
G«o. 3, c. 89, alleged that A., on
the 19th day of May, 1842, not
being a contractor, had in his }X)S-
session naval stores: — Held, that
the date given applied to the alle-
gation that A. was not a contractor,
as well as to the allegation that he
had possession of the stores, and
therefore that it was sufficiently
averred that he was not a contract-
or at the time of such possession.
Silversides v. Reg. (in error), 2 G. &
D. 617; 3 Q. B. 406; 6 Jur. 805.
Bags marked M. were forwarded
from Portsmouth to London by rail-
way, and were deposited in the goods
department of the railway company
in Liondon. The ])risoner, a marine
store dealer in Portsmouth, wrote
and telegrai)hed to G., an officer of
the company, to deliver the bags to
E. The bags, on being o})ened,
were found to contain naval stores
marked with the broad arrow. The
bags had been delivered at the
Portsmouth station by two women,
but there was no evidence to con-
nect them with the prisoner. Bags
marked E. had previously been for-
warded by the company to their
§oods department in London, and
elivered to E. in accordance with
directions received from the prison-
er. He was indicted under 9 <& 10
Will. 3, c. 41, s. 2, for having naval
stores in his custody, possession and
keeping, and convicted : — Held, that
the evidence was sufficient to sup-
port the conviction. Meg. v. Suh^
ley. Bell, C. C. 145; 5 Jur.,N.S.
551 ; 7 W. R. 418 ; 33 L. T. 154;
8 Cox, C. C. 179.
A. was indicted, under 9 & 10
Will. 3, c. 41, s. 2, for having been
found in ]X)ssession of naval stores
marked with the broad arrow. It
was proved that he delivered to the
captain of a coasting vej^el a cask
containing copper bolts, a portion
of which was marked with the
broad arrow. The cask was sebed
by the police before the vessel sailed.
In answer to questions put to the
jury, they found that A., was in the
possession of the copper bolts ; that
they had not sufficient evidence he-
fore them to shew that he knew
that the copper, or any part of it,
was marked with the broad arrow;
and that he had reasonable means
of knowing that it was so marked :
— Held, that upon this finding of
the jury he was entitled to an ac-
quittal, as it must be taken that he
did not know that the copper was
marked. Reg. v. Sleep, L. & C.
44 ; 8 Cox, C. C. 472 ; 7 Jur., N.
S. 979 ; 30 L. J., M. C. 170 ; 9 W.
K. 709 ; 4 L. T., N. S. 525.
Held, that the conviction was al-
so wrong, upon the ground that tlie
copper was not fouua in his posses
sion. Ih.
An indictment framed imder 9 A
10 Will. 3, c. 41, and 55 Geo. 3, c.
127, and charging that the prisoners
received, and had in their posses-
sion, certain government stores, will
not be supported by evidence which
merely shews that they were deal-
ing with the cases in which the
stores were placed — ^in the absence
of evidence to shew that they knew
the government mark was on the
stores. Reg, v. O^Brien, 15 L. T.,
N. S. 419— Smith.
The bare possession of marked
GUNPOWDER— ILLEGAL MAKING, ETC.
231
naval stores does not render a per-
80D liable to be convicted under 9
& 10 Will. 3, c. 41, if he was irao-
raot that the stores are so marked.
%. V. ITiffmetf, 3 Cox, C. C. 281
— Coltman.
A defendant charged with the
posseffiton of two lots of marked
naval stores produced at his trial
two certificates in respect of the
different lots, signed respectively by
the commodore superintendent of
the Woolwich Dockyard, and the
secretary of the board of ordnance,
the former having been granted to
the person of whom the defendant
purchased, the latter to the defend-
ant himself: — Held, that these cer-
tificates, though not strictlv in ac-
cordance with 9 & 10 Will. 3, c.
41, 85. 2, 4, were nevertheless an
answer to the charge. Ih.
On an indictment charging the
defendant with being in possession of
naval stores marked witn the broad
arrow, it is necessary to shew not
only that he was possessed of the
articles, bat also that he knew they
were marked with the broad arrow.
%. V. Cohen^ 8 Cox, C. C. 41—
Watson and ffiU.
The fraudulently charging, by a
pniser, of stores which were never
uroed, and the making of false en-
tries in the ship's books to cover
SQch charges, is an offence punish-
able "according to the laws and
customs in such cases used at sea,''
as amounting under 22 Geo. 2, c.
83, g. 36, to " a crime not capital,
conmiitted by a person in the fleet
not before mentioned in this act,
and for which no punishment is
thereby directed to be inflicted."
Mann v. (hoen, 4M. A B. 449 ; 9 B.
A C. 595.
XEX. GUNPOWDEB.
1. Illegal Making , Use and Emplotf'
ment, ^31.
3. Iniem to murder by — See MuR-
DBR, AND Offenses against
THE Pkbson.
3. Inflicting InjwrieM h^ — Set MuR-
1. Illegal making^ ^ise and emphy-
ment.
By 24 & 25 Vict. c. 97, s. 54,
" whosoever shall make or manu-
" facture, or knowingly have in his
" possession, any gunjwwder, or
" other explosive substance, or any
" dangerous or noxious thing, or any
" macliine, engine, instrument or
" thing, with intent thereby or by
" means thereof to commit, or for
" the purpose of enabling any other
" person to commit, any of the fel-
" onies in this act mentioned, shall
'* be guilty of a misdemeanor, and,
" being convicted thereof, shall be
" liable, at the discretion of the
" court, to be imprisoned for any
" term not exceeding two years,
" with or without hard labour, and
" with or without solitary confine-
" ment, and, if a male under the age
" of sixteen years, with or without
" whipping." (Former provision, 9
& 10 Vict. c. 25, s. 8.)
By s. 55, "any justice of the
" peace of any county or place in
" which any machine, engine, im-
" plement or thing, or any gunpow-
" der or other explosive, dangerous
" or noxious substance, is suspected
" to be made, kept or carried for
" the purpose of being used in com-
" mittmg any of the felonies in this
" act mentioned, upon reasonable
" cause assigned upon oath by any
" person, may issue a warrant under
" his hand and seal for searching in
" the daytime any house, mill, mag-
" azine, storehouse, warehouse, shop,
" cellar, yard, wharf,, or other place,
" or any carriage, waggon, cart, ship,
" boat or vessel, in which the same
" is suspected to be made, kept or
" carried for such purpose as herein-
" before mentionea ; and every per-
" son acting in the execution of any
" such warrant shall have, for seiz-
"ing, removing to proper places,
" and detaining every such machine,
" engine, implement and thing, and
" all such gunpowder, explosive,
" dangerous or noxious substances
** found upon such search, which
282
LARCENY AND RECEIVERS.
k
" he shall have good cause to sus-
" pect to be intended to be used in
" committing any such offence, and
" the barrels, packages, cases and
"other receptacles in which the
" same shall be, the same powers
" and protections which are given
" to persons searching for unlawful
" quantities of gunpowder under
" the warrant of a justice by 23 &
« 24 Vict. c. 139."
" As to keeping combustible
"matters on boieird vessels in the
" Thames, see 2 & 3 Vict. c. 47, s.
" 37."
It would seem that if persons put
on board a ship an unknown article
of a combustible and a dangerous
nature, without giving due notice
of its contents, so as to enable the
master to use proper precautions in
the stowing of it, they are guilty of
a misdemeanor. Williams v. .East
India Company, 3 East, 192,201.
XX. Larceny akd Receivebs.
1 . What amotinU to a Taking, 232.
(a) General Principles, ^2.
fb) On Sale or Purchase of
Goods, 238.
f c) By a Tnck or a Fraud, 240.
(d; On Breach of Qmtract to
sell, 243.
fe) Bt/ Hirers of Property, 24^.
(f) Fr<m Bailees at Common
Law, 244. 1245.
Cg) By Bailees at Common Law,
(h) Bif Pawning Property, 246.
fi) Means of facilitating or de-
tecting Larceny, 247.
Q) In Case of Lost Property,
247.
fk^ Recency of Possession of
Stolen Pronerty, 250.
(\) Servants taking Master's
Com for feeding Horses,
251.
Cm; By Husband and Wife, 251.
fn; By Wife's Paramour, 252.
(o) By Clerks or Servants, 253.
(p) J^ Fraudulent Bailees, 25S.
*(q) By Parties in concert, 260.
2. By Persons in the Queen's Service,
or bu the Police, 260.
8. By Post Office Servants and Others
4. In a Dwelling-house, 264. [261.
5. From the Person, 266.
6. By Tenants or Lodgers, 267.
7. In Manufactories, 2I&7.
8. From Mines, 268.
9. In Ships in Parts or on NavigiiU
Rivers and Wharves, 269.
10. Abroad or on the High Sm, 269.
1 1 . Stealing or destroying Written In-
struments, 270.
12. Stealing or destroying Trees,Shnd»,
Vegetables and Fences, 271.
13. Attempts to commit Larceny, Hi.
14. Subject-matter of Larceny, 2U.
1 5. Letters and Government Docume^,
16. Fixtures, 278. [277.
17. Cattle and other Animals, 279.
(sl) StatuU, 279.
(b) Horse Stealing, 279.
(e) Catde,2S}.
(d) Shet^ Stealing, 2S\.
fe) Deer, 282.
(f) Doves or Pigeons, 284.
(g) Fish, 284.
(h; Do^s, 286. [287.
(i; Birds and other AnimaU,
Q) Carcases or Skins, 288.
18. The Ownership, 289.
19. Receivers of Stolen Prc^^,&A.
(&) Statutory Provisions, 294.
(b) Who are Receivers, 29i,
(c) Joint Receivers, 296.
(d) Husband and Wife,iS7.
20. Indictment for Stealing and Rt-
ceiving, 298. .
(a) Stealing, 298.
hi) Stealing and Receimng, 901.
21. Jurisdiction to try, 303.
22. Evidence, 304.
23. Punishment, ^T.
24. Restitution and Recovery of ^des
Property, 307.
1. What amounts to a Taking,
(a) General Principles,
;^atute.]—Bj 24 & 25 Vict c
69, s. 2, " every larceny, whatever
' be the value of the property stol-
* en, shall be deemed to be of the
* same nature, and shall be subject
* to the same incidents in all respects
' as grand larceny was before the
' 21st of June, 1827 ; and every
* court whose power as to the trial
' of larceny was before that time
' limited to petty larceny, shall
* have power to try every case of
' larceny, the punishment of which
* cannot exceed the punishment pre-
' scribed for simple larceny, and
' also to try all accessories to such
* larceny."
The original distinction of grana
and petty larceny made it necessary,
GENERAL PRINCIPLES.
233
in indictments for larceny, to allege
the value of the chattel stolen, m
order to allot the punishment. Reg,
T. Gimhle. 16 M. & W. 384.
What amourUs to a taking,'] —
To constitute larceny, there must
be a taking of the property against
the will of the owner. But the
cashier of a bank has authority,
arising from the nature of his em-
ploment, to pay the money of the
bank to persons presenting genuine
orders, and to judge of their genu-
meoess. Req, t. l^rince, 38 L. J.,
M. C. 8 : 4 L. R., C. C. 150 ; 19 L.
T.,y.S.364; 17 W. R. 179; 11
Cox, C. C. 193.
Therefore, a cashier who, deceiv-
ed by a forged order, purporting to
be drawn by a customer, pays mo-
ney to the payee, who presents it
knowing it to be forged, thereby
parts with the property in the mo-
ney of the bank to the payee so as
to bmd his employer; and the
payee is therefore not guilty of
larceny, but of obtaining money by
felse pretences. lb.
The prisoner with another man
went into the shop of the prosecu-
trix and asked for a pennyworth of
sweetmeats, for which he put down
a florin. The prosecutrix put it into
a money-drawer, and put down six-
pence in silver and five pence in
copper in change, which the pris-
oner took up. The other man said,
"you need not have changed," and
threw down a penny, which the
prisoner took up; and the latter
then put down a sixpence in silver
and sixpence in copper on the counter,
saying:, "bere, mistress, give me
a shilling for this." The prosecu-
trix took a shilling out of the mo-
ney-drawer and imt it on the coun-
ter, when the prisoner said to her,
"you may as well give me the two-
smlling-piece and take it all." The
prosecutrix took from the money-
drawer the florin she had received
from the prisoner, and put that on
the counter, expecting she was to
Fish. Dig.— 18.
receive two shillings of the pris-
oner's monev in exchanoce for it.
The prisoner took up the florin;
and the prosecutrix took up the silver
sixpence and the sixpence in copj^er
put down by the prisoner, and also
the shilling put down by herself,
and was putting them into the
money-drawer, when she saw she
had only got one shilling's worth
of the prisoner's money ; but at
that moment the prisoner's com-
panion drew away her attention,
and, before she could speak, the
prisoner pushed his companion by
the shoulder, and both went out of
the shop: — Held, that the property
in the* florin had not passed to the
prisoner, and that he was rightly
convicted of larceny. Reg, v. Mc-
Kale, 1 L. R., C. C. 125 ; 16 W. R.
800 ; 18 L. T., N. S. 335 ; 11 Cox,
C. C. 32.
A carman having orders to de-
liver goods to a certain person, ii^
mistake delivered them to another
person, who appropriated them to
his own use:— Held, that he did
not part with the property in the
goods by delivering them to a
wrong party ; and that the latter,
appropriating them to his own use,
was guilty of larceny. Reg, v.
LMe, 10 Cox, C. C. 559— Russell
Gurney.
The prisoner was the bailor, and
the prosecutor the bailee of a horse.
The prisoner had intrusted the horse
to the prosecutor as security for a
bill drawn by the former and ac-
cepted by the latter, to accommo-
date him. The prisoner took the
horse out of the prosecutor's posses-
sion. The bill had been paid by
the prosecutor, who had never been
repaid by the prisoner, but was not
produced at the trial : — Held, that
in the absence of the bill there was
no evidence to shew that the pris-
oner had ever parted with his pro-
perty in the horse, so as to consti-
tute his taking of it a larceny. Reg,
V. Wad8worth, 10 Cox, C. C. 557
— Russell Gurney.
234
LARCENY AND RECEIVERS.
A person stole gas for the use of
a manufactory by means of a pipe,
which drew off the gas from the
main without allowing it to pass
through the meter, "fiie gas from
this pipe was burnt e^ery day, and
turned off at night. The pipe was
never closed at its junction with
the main, and consequently always
remained full of gas : — Held, that
as the pipe always remained full,
there was, in fact, a continuous
taking of the ^as, and not a series
of separate takings. Reg. v. Firlh^
1 L. R., C. C. 172 ; 38 L. J., M. C.
54; 17 W. R. 327 ; 19 L. T., K S.
746 ; 11 Cox, C. C. 234.
Held, also, that, even if the pipe
had not been thus kept full, the
taking would have been continuous,
as it was substantially all one trans-
action, lb.
The defendant was foreman of a
currier establishment; he obtained
'from the cashier, by fraudulent mis-
representation, a certain sum of
money to be used in paying off the
workmen. On the pay-roll made
out by the defendant, the sum of 1/.
10«. id, was set down as due one of
the workmen ; whereas, only 1^. 8«,
was due : the 2$, 4d, was fraudulent-
ly appropriated by him, he intend-
ing so to appropriate it at the time
he received it : — ^Held, that he was
guilty of larceny. Seg, v. Oooke,
12 C. C. 10.
■
Necessary Possession.] — To con-
stitute larceny it is necessary that
the party should have had an inten-
tion to deprive the owner of his
property permanently. JReg. v. Hoi-
Umay, 2Q.&K. 942 ; 1 Den. C. C.
370 ; T. & M. 48 ; 3 NewSess. Cas.
410; 13 Jur. 86; 18 L. J., M. C.
60 ; 3 Cox, C. C. 241.
The correct definition of larceny
is the wrongful or fraudulent taking
and carrying away by any person
of the mere personal goods of an-
other, with a felonious mtent to con-
vert them to his (the taker^s) own
use, and make them his own prop-
erty. The fraudulent taking bdng
explained to be a taking without
any colour of right, and the felon,
ious intent, an intent to deprive the
owner permanently of his property.
Ih,
A watchmaker, to whom a watch
was given by the owner for the pur-
pose of having it regulated, disposed
of the watch, and applied the pro-
ceeds to his own purposes : — Held,
that this was no larceny, as the
watchmaker had in the first instance
obtained the possession of the watdi
rightfully, and as, unless there was
a taking in the first instance animo
furandi, no subsequent dishonest
dealing with the chattel could
amount to larceny. Beg, v. Thrisdiy
3 New Sess. Cas. 702 ; 2 C. A K.
842; T. AM. 204; 1 Den. C. C.
502 ; 13 Jur. 1035 ; 19 L. J.,3LC.
66^ S, P. Hex V. Levy, 4 C. &. P.
241.
A., servant of B., a tallow-chand-
ler, clandestinely removed a quan-
tity of fat, the property of B., f«Mn
an upper room in B.'s warehouse to
a lower room in the same place, and
placed it in a pair of scales, and af-
terwards represented to B. that a
butcher named D. had sent the fat
to be purchased and paid for by B.:
— Held, that A. was nghtly convict-
ed of larceny. Reg, v. JBiaM, 2 C.
& K. 947 ; T. & M. 47 ; 1 Den.C,
C. 381 ; 3 New Sess. Cas. 407 ; 18
Jur. 87; 18 L. J., M. C. 62; 3Cox,
C. C. 245.
In order to constitute larceny,
the taking must be with intention
to vest the property in the thief;
and therefore, where servants em-
ployed by a glove-maker in finish-
ing gloves, removed a quantity of
finished gloves from one part of the
master's premises to another, with
intent fraudulentlv to obtain pay-
ment for them as ror so many glo?es
finished by them : — Held, that they
were not guilty of larceny. Beg,
V. Poole, 7 Cox, C. C. 373; Deaia
& B. C. C. 345 ; 27 L. J., M. C. 53;
3 Jur., N, S. 1268.
GENERAL PRINCIPLES.
235
A. owed H. 11*. 14^. to the pro-
eecntor; and the latter having de-
manded payment, the prisoner said
he would fsettle with him on behalf
of A He took out of his yiocket a
{Hece of blank paper, stamped with
a sixpenny stamp, and put it upon
the table, and then took out some
iilrer in his hand. The prosecutor
wrote a receipt for the sum men-
tioned on the stamped paper, and
the prisoner -took it up and went
out of the room. On beiftg asked
for tlie money, he said, '* It is all
T%ht,*' but never paid it : — Held,
that this was not a case of larceny,
the prosecutor never having had
SQch a possession of the stamped
paper as would enable him to main-
tain trespass. Iteg, v. Smith, 2 Den.
C.C.449; 5 Cox, C. C. 533; 16
Jw. 414 ; 21 L. J., M. C. Ill ; S.
P. Reff. V. Framptdn, 2 C. & K, 47.
J. and W., acting in concert', and
blending to defraud S., entered his
shop, and by means of an artifice
mduced him to draw a cheque on
his bankers for 42/., payable m the
name of J., and then to accompany
J. to the bank to see it paid, on the
Qndepitanding that they were to
return to liDish the transaction by
the payment to S. of forty-two sover-
eigns, and that W. was to remain
at the shop till J. and S. went and
returned from the bank. At the
bank, by the desire of S., the bank-
er handed four ten pound!s notes and
two sovereigcns to J. in the presence
of S. S. and J. left the bank toge-
ther, and while on their way back
to S.'s shop, J. went into an inn
yard, and, promising to i*eturn
unmediately, absconded with the
four ten pound notes and the two
wvereigns, which he and W. (who
in the meantime had gone off from
the shop with the forty-two sover-
eigns) appropriated to their own
nee : — ^Held, that the misappropria-
tion of the notes and two sovereigns
was larcfeny, S. never having parted
with the property and possession in
them, and J. having no more than
the bare custody of the money
which he had carried off. Reg. v.
Johnson, 2 Den. C. C. 310; T. <fc
M. 612; 15Jur. 1113; 21L. J.,M.
C. 32 ; 5 Cox, C. C. 372.
M. had the charge of the prose-
cutor's warehouse, in which bags
were kept ; S. for some years had
been in the habit of supplying
the prosecutor with bags, which
were usually placed outside the
warehouse, and shortly after so
leaving them either S. or his wife
called and received payment for
them. M. went into his master's
warehouse, and clandestinely re-
moved twenty-four bags which had
been marked by his master, and
placed them outside the warehouse,
in the place where S. used to deposit
the bags before payment for them.
Soon auerwards the wife of S. came
and claimed payment for these bags.
The prosecutor then sent for S.,
who, upon being asked respecting
the twenty-four bags, said they had
been placed there an hour previous-
ly by him, and demanded payment
for them. The jury found that the
bags had been so removed in pur-
suance of a previous arrangement
between the prisoners : — Held, that
M. was ris^htly convicted of larceny,
and that S. was an accessory before
the fact to the larceny. Reg. v.
Manning, Dears. C. C. 21 ; 17 Jur.
28 ; 22 L. J., M. C. 21 ; 6 Cox, C.
C. 86.
The prisoner assigned his goods
to trustees for the benefit of his
creditors ; but before the trustees
had taken possession, and while the
prisoner remained in possession of
them, he removed the goods, intend-
ing to deprive his creditors of them.
Tfce jury found that the goods were
not in his custody as agent of th'e
trustees: — Held, that he was not
Siilty of larceny. Reg. v. PraUy
ears. C. C. 360 ; 2 C. L. R. 774 ;
18 Jur. 639 ; 6 Cox, C. C. 873.
Animus J^itrandi.] — To constitute
larceny, the felonious intention must
236
LARCENY AND RECEIVERS.
exist in the mind at the time the
property is obtained ; for if it is ob-
tained by fair contract, and after-
wards fraudulently converted, it fs
no felony. JRex v. Oharlewood, 1
Leach, C. C. 409 ; 2 East, P. C. 689.
If, however, a fraudulent convers-
ion takes place after the privity of
contract is determined, it is felony.
lb.
To make a taking felonious it is
not necessary that it should be done
lucri causa ; taking with an intent
to destroy will be sufficient to con-
stitute the offence of larceny, if done
to serve the prisoner, or another
person, though not in a pecuniary
way. Hex v. Cabbage, R. & R. C.
C. 292.
If a bureau is delivered to a car-
penter to repair, and he discovers
money in a secret drawer of it,
which he unnecessarily as to its re-
pairs breaks oj^en, and converts the
money to his own use, it is a feloni-
ous taking of the property, unless it
appears that he did it with intention
to restore it to its right owner.
Cartwright v. Green, 2 Leach, C. C.
962 ; 8 Ves. 405.
A person purchased, at a public
auction, a bureau in which he after-
wards discovered, in a secret draw-
er, a purse containing money, which
he appropriated to his own use.
At the time of the sale no person
knew that the bureau contained any-
thing whatever : — Held, that if the
buyer had express notice that the
bureau alone, and not its contents,
if any, was sold to him ; or if he
had no reason to believe that any-
thing more than the, bureau itself
was sold, the abstraction of the mo-
ney was a felonious taking, and he
was guilty of larceny in appropriat-
ing it to his own use. But that if
he had reasonable ground for believ-
ing that he bought the bureau with
its contents, if any, he had a colour-
able proj^erty, and it was no larcenv.
Merry v. Green, 7 M. & W. 623. *
A servant intrusted with the care
of his master's property, and who
subsequently appropriates it to his
own use, is gJtlty of larceny at the
time he so dis[X)ses of it, and not at
any previous time he may have
intended to steal it, the principle of
animus furandi not applying to tlie
relation of master and servant Hfg.
V. Roberts, 3 Cox, C. C. 74— Pat-
teson.
A lady wishing to get a railway
ticket (the price of which was lOa.)
finding a crowd at the pay-place at
the station, asked the prisoner, who
was nearer in to the }>ay-place, to
get a ticket for her, and handed
him a sovereign to pay for it He
took the sovereign intending to steal
it, and instead of getting the tick^^
ran away : — Held, that he was
ffuiltv of larcenv at common law.
Reg, V. Thompson, 9 Cox, C. C.
244; L. & C. C. C. 225 ; 32 L J.,
M. C. 53 ; 8 Jur., N. S. 1184; 11
W. R. 40 ; 7 L. T., N. S. 432.
Asportation and Appropriation,^
— Where goods in a shop were tied
to a string, which was fastened by
one end to the bottom of the coimt-
er, and a thief took up the goods
and carried them away towards the
door as far as the string would per-
mit:— Held, that being no sever-
ance, there was no asportation, and
consequently that it was not a felony.
An(m,, 2 East, P. C. 556 ; 1 Leach,
C. C, 321, n.
Where a prisoner set up a Ion;
bale upon end in a waggon, an
cut the wrapper all the way down
with intent to remove the contents,
but was apprehended before he had
taken anything out of it : —Held, that
there was not a sufficient asporta-
tion to constitute a larceny. R^
V. Cherry, 1 Leach, C. C. 236, n. ;
2 East, P. C. 556.
So where a prisoner stopped the
prosecutor, who was carrying a bed
on his shoulders, and told him to
lay it down, or he would shoot him;
and he laid it down on the ground,
but before the prisoner could take it
up was apprehended: — ^Held, that
GENERAL PRINCIPLES.
237
^le oftenc« was not completed. Hex
T. Farr^, 1 Leach, C. C. 322, n.
To remove a package from the
head to a tail of a waggon, with a
felonious intent to take it awav, is
a sufficient asportation to constitute
a larceny ; but merely to alter the
position of a package on the spot
where it lies is not. Hex v. Codet^
1 Leach, C.C. 236; 2 East, P. C.
556. See Rex v. Cherry^ 1 Leach,
C. C. 286, n.
A prisoner, having lifted up a bag
from the boot of a coach, was
detected before he had got it out ;
and it did not appear that it was
entirely removed from the space it
at first occupied in the boot, but the
raisinjy it from the bottom had com-
pletely removed each part of it from
the space that specific part occupied :
^Held, tliat it was a complete as-
portation. Rex V. Walsh^ 1 M. 0.
C.14.
A banker's clerk entered a ficti-
tious sum in the ledger to the credit
of a customer, and told him he had
paid that sum to his account; and
on the faith of it obtained from the
customer his cheque on the bankers,
which the prisoner paid to himself
by hank-notes from the till, and
entered in the waste-book a true
account of the cheque, drawer, and
note*, as paid " to a man." This
was held a felonious taking of the
notes from the till. Rex v. Ham-
fn<m, 4 Taunt. 304 ; 2 Leach, C. C.
1083.
Where the jury found that one
who assisted in taking another's
goods from a fire in his presence,
hut without his desire, and who
afterwards concealed and denied hav-
ing them, yet took them honestly at
first, and that the evil intention to
convert them came on the taker
afterwards, held no larceny. Rex
T. Leigh, 2 East, P. C. 694; 1 Leach,
C.C.411,n.
If a person is induced to play at
hiding under the hat, and stakes
do\ni his money voluntarily on the
event, meaning to receive the stake
if he wins, and to pay it if lie loses,
the taking up the stake so deposited
by him on tne table is not a feloni-
ous taking, although the taker was
made to appear to win the money by
fraudulent conspiracy and collusion.
Rex v. Nicholson^ 2 Leach, C. C.
610 ; 2 East, P. C. 669.
Clandestinely taking away arti-
cles to induce the owner, (a girl) to
fetch them, and thereby to give the
prisoner an opportunity to solicit
her to commit fornication with him,
is not felonious. Rex v. Dickinson^
R. & R. C. C. 420.
Where a party removed a valu-
able article, part of a wreck, from a
wharf on which it had been placed,
and had taken it into his own house,
and had afterwards denied the pos-
session of it : — Held, that the ques-
tion for the jury on an indictment
for larceny was, whether, at the
time he originally took it he meant
to steal it. Re^. v. Ilore, 3 F. <fc
F. 315— Martin.
Where a man drove away a flock
of lambs from a field, and in doing
so inadvertently drove away along
with them a lamb, the property of
another person, and, as soon as he
discovered that he had done so sold
the lamb for his own use, and then
denied all knowledge of it : — Held,
that as the act of driving the lamb
from the field in the first instance was
a trespass, as soon as he resolved to
appropriate the lamb to his own use
the trespass became a felony. Rey.
V. Riley, Dears. C. C. 149 ; 6 Cox,
C. C. 88 ; 17 Jur. 189 ; 22 L. J., M.
C. 48.
Nqn-delivery upon request is evi-
dence of a tortious conversion. Rex
V. jSemple, 1 Leach, C. C. 424 ; 2
East, P. C. 691.
In an indictment for stealing five
pints of porter, it appeared that the
prisoner was discovered standing by
a barrel of porter, out of a hole in
which the porter was runnhig into
a can on the ground, and that about
five pints had run into the can : —
Held, that there was a sufiicient as-
238
LARCENY AND RECEIVERS.
portavit proved of the porter in the
can. Reg. v. WaUis, 3 Cox, C. C.
67.
If at the time of the taking of a
chattel there is no animus furandi,
a subsequent fraudulent appropria-
tion of it will not make the entire
transaction larceny. The prisoner
being a watchmaker received a
watcn from the prosecutor to be re-
paired, not then intending to steal it.
But in a few days he went away,
taking the watch with him ; and
when taken into custody he said, " I
have disposed of the property iand
it is impossible to get it back" : —
Held, that there was no evidence of
a larceny. Beg. v. Thristie^ 3 Cox,
C. C. 573; 19 L. J., M. C. 66 ; 1
Den. C. C. 502.
A. sends his servant with a horse
and cart to B. to purchase coals for
him, and to bring them back. The
bare delivery of the coals into the
servant's hands, as between him and
his master, gives him the exclusive
possession of them ; but that exclu-
sive possession is determined by his
depositing them in his master's cart.
From that time the possession of
them is in A. ; and a subsequent tor-
tious conversion of a portion of them
by the servant, before they reach
their ultimate destination, is larceny.
Reg, V. Reed, 2 C. L. R. 607.
A. was, indicted for larceny. The
juiry found him guilty, but recom-
mended him to mercy, " believing
that he intended ultimately to re-
turn the property" ; — Held, that the
conviction was right. Reg. v. Tre-
bUcock, Dears. <fc B. C. C. 453 ; 4
Jur., N. S. 123 ; 27 L. J., M. C. 103.
A drover employed to drive pigs,
and paid the expenses of driving
them, being paid wages by the day
but having the liberty to drive the
cattle of any other person ; at the
end of his journey sold the pigs, and
converted the proceeds- to his own
use: — Held, not to be larceny, as,
at the time he received the pigs into
his custody, he had no intention of
appropriating them to his own use,
and that he was merely a bailee, tsA
not a servant. Reg. v. Hey, T. k
M. 209 ; 1 Den. C. C. 602 ; 2 C. &
K. 983 ; 14 Jur. 154; 3 Cox, C.G.
582.
' If a pereon is allowed to have
possession of a chattel, and he con-
verts it to his own use, it Ls not
larceny, unless he had an intention
of stealing when he obtained pos-
session of it, but if he has merdy
the custody of a chattel, he is guil^
of a larceny if he disposes of it,
although he did not intend to do so
at the time when he received it into
his custody. Reg. v. Jones, Car.
ife M. 6 1 1 — Cresswell. S. P. Beg.
V. £!vans, Car. & M. 633.
A. was supplied with a qnantitj
of pig-iron by B. & Co., his em-
ployers, which he was to put into a
furnace to be melted, and he vas
paid according to the weight of the
metal which ran out of the furnace
and became puddle-bars. A: put
the pig-iron into the furnace, and
also put in with it an iron axle of
B. & Co., which was not pig-iron.
The value of the axle to B. db Co.
was 7s., but the gain to the prisoner
by melting it, and thus increaang
the quantity of metal which ran
from the furnace, was Ic?.:— Held,
that, if the prisoner put the axle
into the furnace with a felonions
intent to convert it to a purpse for
his own profit, it was larceny. Beg.
V. Richards, 1 C. & K. 532 —Tin-
dal.
(b) On Sale or Pwrchase o/Goodi.
If a tradesman sells a stranger
goods, enters them to his debit, and
makes out a bill of parcels for them
as goods sold, and the goods are
delivered to the purchaser by the
servant of the seller, who receives
bills for them, it is not felony, al-
though the tradesman sold tliem for
ready money, never intending to
give the stranger credit, and it ap-
pears that he had taken the apart-
ments to which he ordered them U)
be sent for the purpose of obtain-
SALE OR PURCHASE OF GOODS.
239
ing them fraudulently. Hex v.
I^irJtes, 2 Leach, C. C. 614; 2
East, P. C. 671.
Where the prisoner obtained pos-
session of a hat from the maker,
which had been ordered by a third
person, by sending a boy for it in
the name of such third person : —
Held, it did not amoimt to larceny.
Rex V. Adams, R. & R. C. C. 225.
Tlie prisoner went into a shop in
London, and purchased jewelry,
and said that he would pay in cash,
and the seller agreed to deliver the
goods at a coach-oflSce belonging
to an inn, where the prisoner stated
that he lodged. The seller made
oat an invoice and took the goods
Acre, when the prisoner said he
had heen disappointed in receiving
some money he expected by letter.
Just afterwards a twopenny post
letter was put into his hands, which
he opened in the presence of the
Heller, and said he had to meet a
friend at Tom's Coifee-house at
seven, who would supply the
money. The goods were left at
the coach-office, and the seller went
home. The prisoner had taken a
place in the mail, but he counter-
manded that, and absconded with
the goods. The seller swore that
he considered the goods sold if he
got his cash, but not before. It
was left to the jury to say whether
the prisoner had any intention of
buying and paying tor the goods,
or whether he gave the order mere-
ly to get possession of them to con-
yert them to his own use. The
jury found the latter, and the pris-
oner was convicted, and the con-
viction was held right by the
iu^es. jRex v. Cam^eU, Car. C.
L.280; 1 M. CO. 179.
Where a person went into a shop
for the purpose of purchasing a
ruby pin, and, after selecting one,
which was put into a box^ while
the yoimg man who was serving
him was absent for about a minute,
took it out of the box, and put it
into his stock, and afterwards went
into the shawl department of the
shop to purchase other articles, say-
ing that he would return and pay
for both together, but was allowed
to go away without inquiry being
made as to whether he had paid in
the shawl department, and a bill,
including the price of the pin, was
sent the next day to the house
where he was residing : — Held, on
the trial of the prisoner for stealing
the pin, that, under these circum-
stances, it was for the jury to say
whether there was any intention to
steal the pin, and whether there
was or was not credit given for it.
Heg. V. Box, 9 C. & P. 126— Pat-
teson and Rolfe.
A., bargaining with B. about
some waistcoats, said, " You must
go to the lowest price, as it will be
ready money." B. said, " Then
you shall have them for 12^.," to
which A. assented. A. then said
he should put the waistcoats into
his gig, which was then standing
at tne door ; B. replied, " Very
well." A. drove off with the
waistcoats without paying for them,
and absconded for two years. The
jury returned the following verdict :
— " In our opinion the waistcoats
were parted with conditionally, that
the money was to be paid at the
time, and that A. took them with
a felonious intent": — Held, a lar-
ceny in A. Beg v. Cohen, 2 Den.
C. C. 249.
A. and B., pretendmg that one of
them was a sea captain and a
Frenchman unable to speak En-
glish, offered to the prosecutrix a
dress for sale at 25^., saying that if
she would give that price for it, she
should have another dress, which
was produced, worth 12s., into the
bargain. She agreed to this, and
took a sovereign and a shilling
from her pocket. Whilst she was
holding the money, A. or B. opened
her hand and took it out, thougK
not forcibly. He then declined to
take the other As., but laid down
the dress first produced, and re-
240
LARCENY AND RECEIVERS.
fiised to let her have the other.
The drePvS proved to be of little
value : — Held, that they were prop-
erly convicted of larceny. Reg. v.
Morgan^ Deal's. C. C. 395 ; 18 Jur.
1085 ; 6 Cox, C. C. 408.
(c) JBy a Trick or a Fraud,
Getting goods delivered into a
hired cart, on the express condition
that the price will be paid for them
before they are taken from the cart,
and til en getting them from the
cart without paymg the price, will
be larceny, if the prisoner never
had any intention of paying, but
had, ab initio, the intention to de-
fraud. Rex V. Pratt^ 1 M. C. C.
250.
Taking goods, though the pris-
oner has bargained to buy, is feloni-
ous, if by the usage the price ought
to be paid before they are taken,
and the owner did not consent to
their being taken, and the prisoner
when he bargained for them did
not intend to pay for them, but
meant to get them into his posses-
sion, and dispose of them for his
own benefit without paying for
them. Rex v. Gilbert^ 1 M. C. C.
185.
If a person, having ordered a
tradesman to bring goods to his
house, look out a certain quantity,
asks the price of them, separates
them from the rest, and then, by
sending the tradesman home on
pretence of wanting other articles,
takes the opportunity of running
away with the goods so looked out,
with intent to steal them, it is lar-
ceny ; for, as the sale was not com-
pleted, tlie possession of the prop-
erty still remained in the trades-
man. Rex V. Sharpless, 1 Leach,
C. C. 92 ; 2 East, P. C. 675.
Wliere property, which the pros-
ecutor had bought, was weighed
out in the presence of his clerk,
knd delivered to his carman's serv-
ant to cart, who let other persons
take away the cart and dispose of
the property for his benefit jointly
with that of the others, the car-
man's servant, as well as the others,
are guilty of larceny at common
law. Rex v. Harding^ K. & R
C. C. 125.
Where an owner sends goods by
his servant to be deliver^ to A,
but B. fraudulently procures the
delivery to himself by pretending
to be A., he is guiltv of felony.
Rex V. Wilkins, 2 East, P. C. 673;
1 Leach, C. C. 520.
Getting a parcel from a carrier's
servant, by falsely pretending to be
the person to whom it is dSected,
if it is taken animo furandi it is &
larceny ; for the servant has no au-
thority to part with it but to the
right person. Rex v. ZongsireeA,
1 M. C. C. 137.
To obtain property by fraud, and
under a preconcerted plan to rob,
is felonv, but the animus furandi
must be found by the jury. Eez
V. Homer, 1 Leach, C. C. 270.
Where a prisoner having offered
to accommodate the prosecutor with
gold for notes, the latter put down
a number of bank-notes for the
purpose of their being exchanged,
which the prisoner took up and ran
away with : — ^Held, a larceny, if
the jury believed that he intended
to run away with them at the time,
and not to return the gold. Rex v.
Oliver, 2 Russ. C. & M. 122-
Wood.
To obtain a bill of exchange
from an indorsee, under a pretence
of getting it discounted, is felony,
if the jury finds that the indorsee
did not intend to leave the bill in
the prisoner's possession witliout
the money, and that he undertook
to discount it with a preconcerted
design to convert its produce to his
own use. Rex v. Aickle^, 1 Leach,
C. C. 294 ; 2 East, P. C. 675.
Where, in a case of ring-drop-
ping, the prisoners prevailed on the
prosecutor to buy the share of the
other party, and the prosecutor was
prevailed on to part with his mon-
ey,— ^intending to part with it for
BY A TRICK OR A FRAUD.
241
CTCT, and not with the possession of
It only :— Held, that this was not a
larcenv. Jieg, v. Willson, 8 C. <fc
P. 111— Coleridge.
A was treating B. at a beer-
house, and A. wishing to pay, put
down a sovereign desiring the land-
lady to give him change ; she could
not do so; and B. said that he
would go out and get change. A.
said, " You won't come back with
the change." B. replied, " Never
fear." A. allowed B. to take up
the sovereign, and B. never re-
turned either with it or the change :
—Held, no larceny, as A. having
pennitted the sovereign to be taken
away for the purpose of being
changed, he could never have ex-
pected to receive back the specific
coin, and had therefore divested
himself of the entire possession of
it Beg, v. Thomas, 9 C. & P.
741-Coleridge.
A went to a shop, and asked a
hoy there to give hun change for
a half-crown; the boy gave him
two shillings and sixpenny worth
of copper. The prisoner held out a
half-crown, which the boy touched,
hit never got hold of it, and the
prisoner ran away with the two
shillings and the copper : — Held, a
larceny of the two shUlings and the
copper. Sex v. Williams, 6 'C. &
P. 390-Park.
A landlord went to his tenant
(who had removed all his goods)
to demand rent amounting to 121.
lOi., taking with him a receipt
ready written and signed ; the ten-
ant eave him 2/., and asked to look
at the receipt. It was given to
him, and he refused to return it or
to pay the remainder of the rent.
It was proved by the landlord, that,
at the time he gave the tenant the
receipt, he thought the tenant was
going to pay him the rent; and
that he should not have parted
with the receipt unless he had been
paid all the rent ; but that when
he put the receipt into the tenant's
hand he never expected to have the
receipt agarn ; and that he did not
want the receipt again, but wanted
his rent to be paid : — Held, a lar-
ceny; and that the fact of the
tenant giving the 21, made no dif-
ference. JReg, V. liodway, 9 C. &
P. 784- Coleridge.
Where a prisoner took a packet
of diamonds to a pawnbroker, with
whom he had previously pledged a
brooch ; and having agreed with
the shopman for thp amount of the
loan on the diamonds, sealed them
up and received the amount, de-
ducting the amount for which the
brooch was pledged; but, instead
of giving the packet of diamonds
to the shopman, gave him a packet
of similar appearance, containing
only glass : — ^Held, that it was not
larceny, but only a fraud. Rex v.
MeUheim, Car. C. L. 281.
If a pawTibroker's servant, who
has a general authority from his
master to act in his business, de-
livers up a pledge to the pawner,
on receiving a parcel from the
pawner, which he supposes contains
valuables he has just seen in the
pawner's possession in a similar
parcel, the receipt of the pledges
by the pawner is not a larceny.
Rex V. Jackson, 1 M. C. C. 119.
A. went to B.'s shop, and said
that he had come from C. for some
hams, and at the same time pro-
duced a note in the following
terms : " Have the goodness to give
the bearer ten good thick sides of
bacon, and four good showy hams,
at the lowest price. I shall be in
town on Tliursday next, and will
call and pay you. Yours, &c.,
C." B. thereupon delivered the
hams to A. Tlie note was forged,
and A. had no such authority from
C: — Held, that A. was not guilty
of larceny. Reg, v. Adams, 1
Den. C. C. 38.
A gipsey, obtaining money and
goods under pretence of practising
witchcraft, without an intention to
242
LARCENY AND RECEIVERS.
return them, is properly indicted
for larceny. Reg, v. Runce, 1 F.
Ss F. o23— Channel!.
Wheat, not the property of the
prosecutor, but which had been
consigned to him, was placed in
one of his storehouses, under the
care of a servant, E., who was to
deliver it only to the orders of the
prosecutor, or his managing clerk.
A., who was in the emj)loy of the
prosecutor, obtained the key of the
storehouse from E., and was al-
lowed to remove a quantity of the
wheat, upon his representation to
E. that he had been sent by the
clerk, and was to take the wheat
to a railway station. This repre-
sentation was false, and he subse-
quently disposed of the wheat : —
Held, that he was guilty of a lar-
ceny of the wheat. Heg, v. Hob-
ins, Dears. C. C. 418 ; 18 Jur.
1058.
The fraudulent taking of a rail-
way ticket for the purpose of using
it to travel, and so defrauding the
railway company, is larceny, al-
though the ticket would, if used,
be returned to the company at the
end of the journey. Heg, v. Beech-
am, 5 Cox, C. C. 181.
On the trial of an indictment for
larceny it appeared that the prisoner
having given tlie prosecutor an or-
der for certain goods, they were
sent by a servant with directions
not to part with them without the
money; on the way the servant was
met by the prisoner, who said the
goods were for him and took them,
giving two counterfeit half-crowns
m payment; — Held, that he was
properly indicted for larceny. Reg,
v. Wehb,b Cox, C. C. 154.
A., in the hearing of B. told his
servant to go to H. and pay him
some money, upon which B. oifered
to take the money for A., falsely
stating that he lived only six doors
from H. Induced by the offer of
B., A. delivered the money to him
to carry to H. B. appropriated the
money to his own use. He was in-
dicted for larceny of the money,
and found guilty, the jury statii^
that their verdict was grounded on
their belief that he had obtained \k»
money by a trick, intending at Uif
time to appropriate it to bis own
use :^— Held, that the conviction was
right. Reg. v. Brown, Dears. C. C.
616^ 2 Jur., N, S. 192.
J., owner of a watch, placed it
with the seller to be regulated. The
seller had no authority to deliver it
to any one but J., or some one com-
missioned by him to receive it. Bj
the fraud of the prisoner, the seller
was induced to believe tliat J. had
desired the watbh to be sent bj
post, inclosed in a letter to J., to
the care, of the postmaster at R
The postmaster through the fraud
of the prisoner, was induced to de-
liver the letter containing the watdi
to him, believing him to be J. or
his agent : — Held, that the prisoner,
having appropriated the watch to
his own use, was guilty of larceny
of it from the owner. Reg, v. Ka^,
Dears. & B. C. C. 231 ; 3 Jur-,N.&
546;26L. J.,M. C. 119.
At a colliery, where coal was sold
by retail, it was the practice for the
CArts, when loaded, to be taken to
a weighing machine in the colliery
yard, where they were weighed,
and the price of the coal paid. &
went to the yard and asked for a
load of soft coal ; his cart was ac-
cordingly loaded by a servant of
the prosecutor with that description
of coal, and he was then left to take
it to be weighed, and pay for it
He, however, covered over the top
of the coal in the cart with slack
(an inferior description of coal),
and then went to the weighing ma-
chine, and told the clerk he had got
slack ; the clerk accordingly weigh-
ed the cart, and charged for its con-
tents as slack. B. paid for the coal
as slack, and went away ^^-ith it :—
Held, that he was guilty of larceny
of the soft coal. Reg. v. Bramlmi%
ON BREACH OF CONTRACT TO SELL.
243
L. & C. 21; 8 Cox, C. C. 468; 7
Jnr.,N. S. 473 ; 9 W. R. 555 ; 4 L.
T., N. S. 309.
B., a broker, having lar^e deal-
ings with the prosecutors, Russian
merchants, in October entered into
a contract for the purchase of 343
casks of tallow which were expect-
ed to arrive by the Hesper, in the or-
dinary course of trade. The tallow
arrived accordingly on the 5th of
December, and m due course the
transaction Khould have been com-
pleted within fourteen days, and
notice was given to B. of the ar-
rival of the tallow, and he was
called upon to complete the bar-
gain. He requested that the tallow
might be allowed to remain in the
docks for a short time. This was
granted. On January 28th the
manager for the prosecutors called
on him, and insisted on the com-
pletion of the contract, and B. said
he would pay for the tallow on the
Mowing day. On the next day
B. eent his clerk to the prosecutors'
counting-house, and obtained deliv-
ery orders for the tallow, and ten-
dered to the prosecutors a crossed
cheque on a bank of London for the
price of the tallow. Lnmediately
on obtaining possession of the deliv-
er? orders, he sent them to the
docks, and ti-ansferred the property
into fresh warrants, and when the
cheque was presented there were no
wsets: — Held, not to be a larceny
of the delivery orders by a trick,
but a lawful possession of them ob-
tained by reason of the prosecutors
giving to B. credit in respect of the
CTosswi cheque. Reg. v. North^ 8
Cox, C. C. 433— Pollock.
By a Trick or a Threat.]— A,
acted as auctioneer at a mock auc-
tion. He knocked down some cloth
for26«. to B., who had not bid for
it, as A. knew. B. refused to take
the cloth or to pay for it ; A. refus-
ed to allow her to leave the room
tmless she paid. Ultimately she paid
the 26«. to A. and took the cloth. She
paid the 26f . because she was afraid.
A. was indicted for, and convicted
of, feloniously stealing these 2 65. : —
Held, that the conviction was right,
because, if the force used to B.
made the taking a robbery, larceny
was included in that crime ; if the
force was not sufficient to constitute
a robbery, the taking of the money
nevertheless amounted to larceny,
as B. paid the money to A, against
her will, and becailse she was afraid.
lieg, V, McGrath, 1 L. R., C. C.
205 ; 21 L. T., N. S. 543 ; 18 W.
R. 119; 37 L. J., M. C. 7.
Held, also, that, under the cir-
cumstances, it was not necessary
that the jury should be asked whe-
ther Jl paid the money against her
will, as from the evidence it was
clear that there could have been
no doubt in the minds of the jury
that the money was so paid, lb,
(d) On Breach of Contract to sell,
A drover of cattle was employed
by a grazier in the comitry to drive
eight oxen to London ; his instruc-
tions were, that, if he could sell
them on the road, he might ; and
those he did not so sell he was to
take to a particular salesman in
Smithfield market, who was to sell
them for the grazier. The drover
sold two on the road, and instead of
taking the remainuig six to the sales-
man, drove them hunself to Smith-
field market, and sold them there,
and received the money, which he
applied to his own use: — Held,
that he could not be convicted eith-
er of larceny or embezzlement. Reg.
V, Goodbody, 8 C. & P. 665— Little-
dale and Parke.
On an indictment against a farm-
er for stealing sheep entrusted to
him for agistment, and which he
had sold, concealing for upwards of
a month the fact of the sale, there
being some evidence that he had,
or might have supposed that he
had, some implied authority to sell,
or that the prosecutor would not
object to it if he realised a good
244
LARCENY AND RECEH^ERS.
price, the jury was directed that
the question was, whether at the
time of tlie sale the prisoner had
any reason to suppose he miglit sell.
lieg. V. Leppard^ 4 F. & P. 51 —
Erie.
A., carrying on business on his
own account, entered into an en-
fagement with B. to sell goods for
im, and for certain purposes to be
his servant. B. entrusted A. with
certain goods to dispose of in a par-
ticular way. A. converted them
to his own use : — Held, that it was a
question for the jury to say whether,
when A. received the goods, he had
the intention of misappropriating
them. Heg. v. Waller^ 10 Cox, C.
C. 360 — Russell Gumey, Recorder.
(e) Bi/ Hirers of Property,
Obtaining a post-chaise by hiring,
with a felonious intent to convert it
to the use of the hirer, is felony, al-
though the contract for hiring was
not for any definite time. Rex v.
Semple, 1 Leach, C. C. 420 ; 2 East,
P. C. 691.
If a man who is hired to drive
cattle sells them, it is larceny ; for
he has the custody only, and not
the right to the possession ; his pos-
session is the owner's possession,
though he is a general drover, at
least if he is paid by the day. Rex
v. M'Namee, 1 M. C. C. 368. See
Reg, V. Hey, 3 Cox, C. C. 582.
A person hired to drive cattle to
a particular place, who sells the
same and absconds with the mon-
ey, is guilty of stealing, though the
intention to sell is not conceived till
after taking possession of the cattle.
Reg, V. Jackson, 2 M. C. C. 32.
If goods are delivered to a person
on hire, and he takes them away,
animo furandi, he is guilty of lar-
ceny, although no actual conversion
of them by sale or otherwise is
proved. Reg, v. Janson, 4 Cox, C.
C. 82— Coleridge.
A. hired a horse and gig with
the felonious intention of converting
them to his own use, and afterwards
offered them for sale, but no sale
took place: — Held, nevertheless,
that he was guilty of larceny. Ih.
To constitute a larceny by a party
to whom goods have been delivered
on hire, there must not only be an
oriijinal intention to convert them
to his own use, but a subseqaent
actual conversion ; and a mere
agi-eement by the hirer to accept a
sum offered for the goods is not such
a conversion, if the party who roake$
the offer does not intend to purchase
unless his suspicions, as to the hon-
esty and right of the vendor to sell,
are removed. Reg, v. Brooks, 8 C.
& P. 295— Tindal.
A., the owner of a boat, was em-
ployed by B., the captain of a ship,
to carry a number of wooden staves
ashore in his boat; B.*6 men were
put into the boat, but were under
the control of A., who did not deliv-
er all the staves, but took one of
them away to the house of his
mother: — Held, that this was a
bailment of the staves to A., and
not a charge only ; and that a mere
non-delivery of the staves would
not have been a larceny in A.; but
that if A. separated one of the
staves from the rest, and carried it
to a place different from that of its
destination, with intent to appro-
priate it to his own use, that vas
equivalent to a breaking of bulk,
and therefore would be sufficient to
constitute a larceny. Rex v. ifotr
ell, 7 C. & P. 325— Patteson.
A. hiring a horse and riding it
away from a livery-stable, and af-
terwards sellmg it, cannot be con-
victed of larceny unless he had the
intention of stealing the horse when
he originally hired it, and that k a
question for the jury. Reg, v. €<^^
2 Cox, C. C. 340— Patteson and
Coleridge.
(f ) From Bailees at Common la^*
If a man steals his own goods
from his own bailee, though he has
no intent to charge the bailee, but
his intent is to defraud the king.
BY BAILEES AT COMIVION LAW.
245
yet £f the bailee had an interest in
the po66e$sion, and could have with-
held it from the owner, the taking
is a larceuy. Hex v. Wilkinson, R.
& R, C. C. 470.
If a partrowner of property steals
it from A, in whose sole custody it
is, and who is solely responsible for
its safety, he is guilty of larceny,
and the property is well laid in A.
alone, although he is also a part-
owner of the property stolen. J^eg,
V. Webster, L. & C. 77 ; 9 Cox, C.
C. 13 ; S, P., Mex V. Bramley, R.
& R C. C. 478.
The prosecutor*8 horse had been
impounded. The prisoner pretended
that he had been sent by the prose-
cutor, paid the pound-keeper's de-
mand, received the horse,- and made
off with it. He was indicted for
larceny. The indictment had two
counts, one laying the property in
the prosecutor and the other in
the pound-keeper : — Held, that the
pound-keejjer was a servant of the
owner, and, therefore, that the of-
fence was larceny. Meg, v. Simpson,
2 a>x, C. C. 235— WUliams.
(g) By Bailees at Common Law,
If the master or owner of a ship
steals some of the goods delivei-ed
. to hun to carry, it is not larceny in
him unless he takes the goods out
of their packages. Rex v. Madox,
R. & R. C. C. 93.
If one employed to carry goods
for hire appropriates them to his
own use, but does not break bulk,
this is no larceny, although the per-
son so employed was not a common
carrier, but was only employed in
this particular instance. Ilex v:
Fldck^^ 4 C. & P. 557— Patteson.
But if a person not being a serv-
ant of the party who intrusts him,
i^ves a parcel containing notes to
take to a coach-office, and abstracts
the notes on his way there, and ap-
plies them to his own use, he is guilty
of larceny. Reg. v. Jenhins, 9 C.
& P. 38---Bo8anquet and Gumey.
A consigned three trusses of hay
to B., and sent them by the prison-
er's cart ; the prisoner took away
one of the trusses, which was foimd
in his stable, but not broken up :—
Held, no larceny, as the prisoner did
not break up the truss. Rex v.
Pradey, 5 C. & P. 533— Parke.
If a parcel is accidentally left in a
hackney-coach, and the coachman,
instead of restoring it to the owner,
detains it, opens it, destroys part of
its contents, and borrows money on
the rest, he is guilty of felony. Rex
V. Wynne, 1 Leach, C. C. 413 ; 2
East, P. C. 664, 697 ; S, P,, Rex v.
Sears, 1 Leach, C. C. 415, n.
A. was convicted of larceny under
the following circumstances : he was
a common carrier, and employed by
the prosecutor to carry a cargo of
coals from a ship to a coal-yard be-
longing to the prosecutor. He cart-
ed the coals to the first-mentioned
coal-yard, and was engaged for sev-
eral days in carting them thence to
the prosecutor's other yard. He
left the first-mentioned coal-yard on
one of those days with two carts and
a waggon, all laden with coals ; be-
fore he arrived at the other yard, he
delivered the two cart loads to a
thiixi person on his own accourft, but
he duly delivered the waggon-load
at the prosecutor's yard : — Held, that
the conviction was wrong, the coals
having been delivered to A. as a car-
rier, and there having been no break-
ing of bulk or other determination
of the bailment. Reg, v. Cornish,
Dears. C, C. 425 ; 6 Cox, C, C. 432.
If the owner parts with the pos-
session of goods for a special pur-
pose, and the bailee, when that pur-
pose is executed, neglects to return
them, and afterwards disposes of
them ; if he had not a felonious in-
tention when he originally took
them, his subsequent withholding
and disposing of them will not con-
stitute a new felonious taking, or
make him guilty of felony. Rex v.
^Twb, R. &. R. C. C. 441.
K a warehouseman has several
bags of wheat delivered to him for
246
LARCENY AND RECEIVERS.
safe custody, and he takes the whole
of the wheat out of one bag, it ifi no
less a larceny than if he had severed
a part from the residue of the wheat
in the Fame baor, and had taken only
that part, leaving the remainder of
the wheat in the bag. Hex v. Gro-
wer, R. &.R. C. C. 337.
Prisoner was indicted for stealing
a pair of boots, the property of A.,
and acquitted. She was then in-
dicted again for stealing the same
boots, laid as tlie property of B., and
pleaded autrefois acquit. A. was a
boy fourteen years of age, living
with and assisting B., who was his
father ; the boots were the property
of B., but at the time they were
stolen by the prisoner, A. had tem-
porarily, in his father's absence, the
charge of the stall from which they
were stolen ; — Held, first, that A.
was not a bailee, and that the own-
ership of the boots could not be
E'operly laid in him. Heq. v. Green,
ears. & B. C. C. 113 ;' 2 Jur., N.
S. 1146 ; 26 L. J., M. C. 17 ; 7 Cox,
C. C. 187.
Held, secondly, that the plea of
autrefois acquit could not be sus-
tained, notwithstanding the power
of amendment given by 14 & 15
Vict. c. 100. lb.
S., bailee of P.'s mare, took her
to certain livery-stables, and paid
P. a balance due to him, after de-
ducting money due for the keep of
the mare, and told P. that she was
at the livery-stables. P. sent word
to the stable-keeper not to let S.
have the mare again, and twice re-
fused S. permission to ride the mare.
S., after P. had left town, obtained
the mai*e from the ostler at the
livery-stables by a false statement,
and never returned her : — Held,
that S. was rightly convicted of
larceny. Reg. v. Stear, 2 C. & K.*
988 ; 1 Den. C. C. 349 ; T. & M.
1 1 ; 18 Jur. 41 ; 18 L. J., M. C. 30.
(h) ^ Pawning Property.
The defence to a charge of steal-
ing, that the prisoner pledged the
property, intending to redeem and
then restore it, is a defence not to
be generally encouraged, though,
if clearly made out in proof, it may
be allowed to prevail. The rale
for the jury's guidance in such a
case seems to be, that, if it clearly
appears that the prisoner only in-
tended to raise money upon the
property for a temporary parpoce,
and at the time of pledging the ar*
tide had a reasonable and a £ur ex-
pectation of being enabled shortly,
by the receipt of money, to take it
out and restore it, he might be ac-
quitted ; but otherwise, not Beg.
V. Pheihean, 9 C. <fc P. 553-4}nr.
ney.
On a charge of larceny it wa«
proved that the prisoner had taka
property from ready-furnished lodg-
mgs that were let to her, and pawn-
ed it :— Held, that the fact thai
she had frequently pawned and alt-
wards redeemed portions of the
same property, was no answer to
the charge. * There must not only
be the intent, but also the ability
to i^eem, to render such defence
available. JReq. v. Medland, 5 Gox,
0. C. 292.
Upon an indictment for larceny,
it was proved that a box of plate
having been deposited with the pris-
oner for safe custody, he broke it
open, and took out a part of the
Elate, which he offered to a pawn-
roker as a securitv for 50/. His
offer was declined, but he after-
wards pledged the whole box of
plate with another i)erson as seenri*
ty for 200/. When he was called
upon to restore the plate to the
Owner, he had not the means of re-
deemine it, and was taken into cos*
tody. The jury found him guilty,
but recommended him to mercy,
believing that he intended nltimate-
ly to return the property : — Held,
that he was rightly convicted of
larceny at common law; becaose
the jury bad found a verdict of
guilty which was well warranted
by the evidence ; and though they
MEANS OF FACILITATING, ETC.
247
had recommended him to meroy on
the ground that be intended nlti-
mately to restore the property,
that expression was not necessarily
iDconsistent with the verdict, and
ought not to be considered equiva-
lent to a finding, that at the time
t when he took the plate wrongfully
he took it for the purpose of merely
making a temporary use of it.
%. V. TrehUcock, 7 Cox, C. C.
408; Dears. & B. C. C. 453; 4
Jot., N. S. 123 ; 27 L. J., M. C.
103.
The prisoner was employed by a
tailor to sell clothes for him about
a particular county ; the price of
each article was fixed, and the
clothes were entrusted to the pris-
oner on the arranorement that he
was to sell them at the price fixed,
he receiving 3^. in the pound on
the amount received for them, and
being bound to bring back the re-
mainder of the clothes which were
unsold. The prisoner received
from the prosecutor a parcel of
dothes on these terms, but, instead
(rf selling them, he fraudulently
pawned a portion of them for his
own benefit, and afterwards fraudu-
loitly misappropriated the residue to
hfeown use ; — Held, that the original
hailment of the goods to the prosecut-
or was determined by the unlawful
>»ct of pawning part of them, and
that the subsequent fraudulent mis-
appropriation of the remainder
amounted to larceny. Reg. v. Poy-
9er, 2 Den. C. C. 233 ; T. & M. 559 ;
15 Jur. 386; 20 L. J., M. C. 191 ; 5
Cox, C. C. 241.
(i) Means of facilitating or detecting
Lcarceny,
The assent of a prosecutor to
give facility to the commission of
a larceny, for the purpose of detect-
ing the offenders, does not do away
with the felony, although the prep-
ay was not taken agamst his will.
&i v. Eggintany 2 Leach, C. C.
513 ; 2 East, P. C. 494, 666 : 2 B.
& P. 508.
Overtures were made by a per-
son to the servant of a publican, to
induce him to join him in robbing
his master's till. The servant com-
municated the matter to the master,
and, some weeks afterwards, the
servant, by the direction of his mas-
ter, opened a communication with
the person who had made the over-
tures, in consequence of which he
came to the master's premises.
The master having previously
marked some money, it was, by his
direction, placed upon the counter
by the servant, m order that it
might be taken up by the party
who had come for that purjwse.
It was so taken up by him : — Held,
larceny in such party. Heg. v.
WiUiams, 1 C. & K. 195.
(j) j^ case of Lost Property ,
If a man finds goods that have
been actuallv lost, or are reasona-
bly supposed by him to have been
lost, and appropriates them with
intent to take the entire dominion
over them, really believing, when
he takes them, that the owner can-
not be found, it is not larceny.
Heq, V. Thurbom, 1 Den. C. C.
387 ; T. & M. 67 ; 2 C. & K. 831 ;
13 Jur. 499 ; 18 L. J., M. C. 140 ;
aS'. (7. Be(/. V. Wood^ 3 New Sess.
Cas. 581 ; 3 Cox, C. C. 453.
But if he takes them with a like
intent, though lost, or reasonably
supposed to be lost, but reasonably
believing that the owner can be
found, it is larceny. lb.
A. picked up the purse of B.,
which contained money, on a turn-
pike road, along which B. had pre-
viously traveled by coach. A. con-
verted the purse and its contents to
his own use : — Held, no larceny ;
and that A. was liable civilly, but
not criminally. Heg. v. Mole, 1 C.
& K. 417— Parke. •
If there had been any mark on
the purse by which the owner
could have been known, it would
have been otherwise. lb.
If a person drops any chattel.
248
LARCENY AND RECEIVERS.
and another finds it, and takes it
away with tlie intention of appro-
priating it to his own use, and only
restores it because a reward is of-
fered, he is guilty of larceny. Reg,
V. Peters, 1 C. & K. 245— Rolfe.
S. P, Reg. V. Reed, Car. & M. 306.
The only cases in which a party
finding a chattel of another can be
justified in appropriating it to his
own use, is where the owner can-
not be found, or where it may be
fairly said that the owner has aban-
doned it. Ih,
Where a bank-note is lost, and
is found by a person who appropri-
ated it to his own use : — Held, that
the j ury is not to be directed to consid-
er at what time the prisoner, after tak-
ing it into his possession, resolved
to appropriate it to his own use,
but whether at the time he took
possession of it he knew, or had the
means of knowing, who the owner
was, and took possession of it with
intent to steal it ; for if his original
possession of it was an innocent
one, no subsequent change of his
mind, or resolution to appropriate
it to his o\vvL use, would amount to
larceny. Reg, v. Preston, 2 Den.
C. C. 353 ; f. & M. 641 ; 16 Jur.
109 ; 21 L. J., M. C. 41 ; 5 Cox,
C. C. 390.
A. found a watch, and subsequent-
ly converted it to his own use ; the
jury found him " not guilty of steal-
ing the watch, but guilty of keeping
possession of it in the hope of re-
ward, from the time he fii*st had the
watch." A verdict of guilty was
entered at the trial : — Held, wrong,
and that on these facts and tins
finding it was no larceny. Reg, v.
Tork, 2 C. <fc K. 841 ; 1 Den. C.
C. 335 ; T. & M. 20 ; 12 Jur. 1078 ;
18 L. J., M. C. 88 ; 3 Cox, C. C.
181.
A purse, containing money, was
left by a purchaser on the prisoner's
stall. A third person afterwards
pointed out the purse to the prisoner,
supposing it to be hers. She put it
in her pocket and afterwards con-
cealed it, and on tlie return of the
owner denied all knowledge of it
The jury found that the prisoner
took up the purse knowing it was
not her own, and intending at the
time to appropriate it to her own
use, but tliat she did not know who
the owner was at the time she took
it:— Held, that as the purse was not
lost property, the prisoner was prop,
erly convicted of larceny. Rig, v.
West, Dears. C. C. 402 ; 3 C. L R.
86 ; 18 Jur. 1031 ; 24 L. J., M. C.
4 ; 6 Cox, C. C. 415.
If a man finds lost property and
keeps it, and at the time of finding
it has no means of discovering the
owner, he is not guilty of larceny,
because he aftei'wards has means
of finding him, and nevertheless re-
tains the property to his own nse.
Reg. V. Dixcm, Dears. C. C. 580;
25 L. J., M. C. 39 ; 7 Cox, C. C.
35.
Semble, if a man finds property
which has been lost, and appropri-
ates it to himself, he is not guilty
of larceny for failing to take steps
to discover the owner, unless he saw
the article drop from the owner, or
unless it has the owner's name upcm
it, or some circumstances of tiie
sort occurred which afibrded the
finder an immediate means of know-
in sj who the owner was at the mo-
ment when lie picked it up and ex-
amined it. Tb.
A finder of lost property is not
guilty of larceny in appropriating it
to his own use, unless he has a fel-
onious intent at the time of the find-
ing. Reg. V. Christopher, Bell, C.
C. 27 ; 5 Jur., N. S. 24 ; 28 L. J.,
M. C. 35 ; 7 W. R. 60 ; 32 L T.
150 ; 8 Cox, C. C. 9^1.
A. was indicted for stealing a
l)ank-note. The prosecutor had
paid for an article pm*chased at A.'s
shop, out of a purse in wliich were
two bank-notes. Next morning jie
discovered the loss of one of the
notes, and applied to A., who told
him he knew nothing of the note.
He, however, afterwards stated he
LOST PROPERTY.
249
had givoi gold for it on the day
of the loss. The jnry, in answer to
questions put to them, found — first,
tiiat the note was dropped by the
prosecutor in the shop, and that A.
found it there ; secondly, that he at
the time he picked np the note did
not know, nor had he reasonable
means of knowing, who the owner
was; thirdly, that he afterwards ac-
qmred knowledge of who the owner
WIS, and after that he converted the
note to his own nse ; fourthly,
that he intended, when he picked
up the note in the shop, to take it
to his own use, and deprive the own-
er of it, whoever that owner might
be; and, fifthly, that he believed,
it the time he picked up the note,
that the owner could be found. A
verdict of guilty was thereupon en-
tered :— Held, that he was properly
convicted. lUg, v. Jfbore, L. & C.
1 ; 8 Cox, C. C. 416 ; 7 Jun, N. S.
172;30L. J., M. C. 77 ; 9 W. R.
276.
A prosecutor found a cheque,
ud, being unable to read, shewed
it to the prisoner. The prisoner
told him that it was only an old
cheque of the Royal British Bank,
uid kept it He afterwards made
excuses for not giving it up to the
prosecutor, witholding it from him
in the hopes of gettin^^ the reward
that might be offered for it :— Held,
^t these facts did not shew such a
taking as was necessary to consti-
tute larceny. Reg, V. Gardner^ L.
& C. 243 ; 9 Cox, C. C. 253 ; 8
Jur., N. S. 1217 ; 32 L. J., M. C.
3o;llW.R. 96; 7 L. T., N. S.
471.
The law with resard to the find-
er of lost property does not apply to
tiie ease of property of a passenger
wcidentally left in a railway car-
ittge, and found there by a servant
pf the company ; and such servant
is gnilty of larceny if, instead of tak-
ing it to the station or superior ofii-
oer, he appropriates it to Ms own
Me. Reg. v. Pierce, 6 Cox, C. C.
117.
Fish. Dig.— 19.
A. was indicted for stealing iron
which he had taken from a canal
while the canal was beinor cleaned.
Property found on such occasions in
the canal, if identified, was returned
by the company to the owner ; other-
wise it was kept by the company. A.
was not in the employ of the compa-
ny : — Held, that the property in the
iron was rightly laid m the compa-
ny. Reg. V. Rowe, Bell, C. C. 93 ;
5 Jur., N. S. 274 ; 28 L. J., M. C.
28 ; 7 W. R. 236 ; 82 L. T. 339.
The finder of a lost sovereign in
the high road, who, at the time of
the finding, had no reasonable means
of knowing who the owner was, but
who at that time intended to appro-
priate it even if the owner should
afterwards become known, and to
whom the next day the owner was
made known, when he refused to
give it up, is not guil^ of larceny.
Reg. V. Glyde, 37 L. J., M. C. 107 ;
1 L. R., C. C. 139 ; 16 W. R. 1174;
18 L. T., N. S. 613 ; 11 Cox, C. C.
103.
The prisoner's child found six sov-
ereigns in the street, which she
brought to the prisoner. The lat-
ter counted it, and told some by-
standers that the child had found a
sovereign, and offered to treat them.
The prisoner and the child then
went down the street to the place
where the child had found the mon-
ey, and found a half-sovereign and
a bag. Two hours afterwards the
owner made hue-and-cry in the vi-
cinity. On the same evening the
prisoner was told that a woman had
lost money ; the prisoner told her
informant to mind her own business,
and gave her half-a-sovereign for
herself. The prisoner admitted, on
arrest, that she had got the money
from the child: — Held, that these
facts did not warrant a conviction
for larceny, as there was nothing to
shew that at the tune of the finding
the prisoner had reason to think
that the owner could be found.
Reg. V. Deaoes, 11 Cox, C. C. 227 ;
3 Ir. R., C. L 806.
250
LARCENY AND RECEIVERS.
(k) Recency of Possession of Stolen
Property,
The question of what is or is not
a recent possession of stolen proper-
ty, is to be considered with refer-
ence to the nature of the article
stolen. Therefore, where two ends
of woolen cloth in an unfinished
state, consisting of about 20 yards
each, are lost, and were in the pos-
session of the prisoner two months
after their being stolen, and still in
the same state, it was held that this
was a possession sufficiently recent
to call on the prisoner to shew how
he came by the property. Rex v.
Partridge^ 7 C. & P. 551 — Patteson.
Where a person on whom stolen
property is round gives to those who
find him in possession of it a reason-
able account of how he came by it,
it is incumbent on the prosecutor to
shew that that account is untrue.
Meg, V. Orowhurst, 1 C. & K. 370
— Aldei*son. S. P., Reg. v. Smith,
2 C. & K. 207— Denman.
Aliter, if that account is unreason-
able or improbable on the foce of it.
Ih,
Where a stolen horse was found in
the possession of the prisoner six
months after it was stolen, and there
was no other evidence against him, the
judge would not call on him for his
defence, as the possession was not
sufficiently recent. Reg. v. Cooper,
3 C. & K. 818 ; 16 Jur. 750—
Maule. S. P., Rex v. Adams, 3 C.
& P. 600; Reg. v. Crittenden, 6
Jur. 267.
The prisoner was found coming
out of a warehouse, where a large
quantity of pepper was kept, with
pepper of a siniilar quality in his
possession. He had no right to be
in the warehouse, and on being dis-
covered said, " I hope you will not
be hard with me," and took some
pepper out of his pocket and threw
it upon the ground. There was no
evidence of any pepper having been
missed from the bulk : — Held, that
there was sufficient evidence to go to
the jury of the corpus delicti. Reg.
V. Burton, Dears. C. C. 282; 18
Jur. 157 ; 23 L. J., M. C. 52.
A. was indicted for stealing and
receiving articles of dress. It was
proved that the prosecutor's house
was broken open, and the articles
stolen, on the 2nd November. On
the night of the 4th Novonber, A
sold them openly at a pubHc-hoiue.
He was subseauently apprehended,
and then told tne constable that C.
and D. brought the goods to his
house, and that the woman who
kept it (Mrs. W.) would say so, and
that being on the spree, he sold them
and spent the money. C. and D.
were thereupon apprehended. C.
was convict^ of stealing articles
taken at the same time from the
prosecutor's house, and D. was dis-
charged. The constable went to
the woman W., and made in<juiries
as to A.'s statement. No evidence
of the result of such inquiry was
received. Neither C, D. nor W.
was called by the prosecution to
contradict A.'s statement, and he
was convicted of stealing: — ^Held,
that as there was some evidence upon
which the jury might convict, tl»
conviction must be affiiined. Reg.
V. Wilson, Dears. & B. C. C. 157 ; 3
Jur. N. S. 167 ; 26 L. J., M. C. 45.
Where stolen property is traced
to the possession of a prisoner, and
he at the time gives an account of
how he became possessed of it, it is
not the duty of the prosecution to dis-
prove that account where circum-
stances exist in the case which ren-
der that account unreasonable, or its
truth improbable. In such a case
the burthen of calling the parties
vouched is cast on the prisoner.
Reg. V. Harmer, 2 Cox, C. C. 487
—Pollock.
Kecent possession of stolen prop-
erty is evidence, either that the per-
son in possession stole the property,
or that he received it knowing it to
have been stolen, according to the
other circumstances of the case.
Reg, V. Langmead, L. & C. 427 ; 9
Cox, C. C. 464; 10 L. T., N. S. 350.
BY HUSBAND AND WIFE.
251
Where property of insignificant
value is traced to the possession of
the prisoner fifteen months ailer the
loss, and he gives an account of his'
possesdon of it which is not inconsist-
ent with the right of the prosecutor
to it, he ought not to be called on
to account for that possession in a
oourt of justice. Where, however,
the prisoner, when lost property is
found in his possession, and identi-
fied by the prosecutor after so long
an mterval, claims it as his own
property by right of purchase made
Wore the alleged theft, and a contin-
uons possession up to the time of dis-
covery, he may be called on to ac-
count for that possession, notwith-
standing the interval which has
elapsed between the loss and discov-
ery, for then he disputes the identity
of the thing foimd with that loss.
Beg, V. Evans, 2 Cox, C. C 270—
AlderBon.
A man was found with dead fowls
inhispoKession, of which he could
give no account, and was tracked to
» fowl-house where a number of
fowls was kept, and on the floor of
which were some feathers corres-
ponding to the feathers of one of the
fowls found on the prisoner, from
the neck of wliich feathers had been
removed. The fowl-house, which
was closed over night, was found
open in the morning. The spot
where he was found was 1,200 yards
from the fowl-house, and the prose-
cutor, not knowing the number of
fowls kept, could not swear that he
had lost any : — ^Held, that there was
evidence to support a conviction for
larceny. Beg, y. Mockfard, 17 L.T.,
N. S. 582; 16 W. R. 376 ; 11 Cox,
C. C. 16. See 32 & 33 Vict. c. 99,
8.11.
(1) Servants taking Masters^ Com
for feeding Horses.
^ By 26 & 27 Vict. c. 103, s. 1,
" servants taking their masters' com,
" pulse, roots, or other food contrary
" to their orders, for the purpose of
"giving the same to their masters'
^^ horses or other animals, shall not
*' by reason thereof be deemed guilty
" of felony, but shall be liable to im-
prisonment, or to pay a pecuniary
penalty."
(C
ii
Before this Enactment,'] — Sei"vants
who clandestinely took their masters'
oats, with uitent to give them to
their masters' horses, and vtdthout
any intent to apply them to their
own private benefit, were guilty of
larceny^ even though they were not
answerable at all for the condition
of the horses. Meg. v. Priv^^ 2 C.
& K. 114 ; 1 Den. C. C. 193 ; *S^. P.,
Reg. V. Handley^ Car. & M. 547;
Reg. V. Morfit, R. & R. C. C. 307.
(m) By Husband and Wife.
Where, on the trial of a man and
a woman fdr larceny, it appears that
they addressed each other as husband
and vnfe, and passed and appeared
as such, and were so spoken of by
the witnesses for the prosecution, it
will be for the jury to say whether
they are satisfied that they are in
fact husband and wife, even though
the woman pleaded to the indict-
ment, which described her as a single
woman. Reg. v. Woodward^ 8 C. <jb
P. 561 — Patteson.
In such a case, a female ought
not to be indicted as a single woman.
Ih.
Stealing, by the wife of a member
of a friendly society, money of the
society deposited in a box in the hus-
band's custody, kept locked by the
stewards, is not larceny. Rex v.
mUis, 1 M. C. C. 375.
A woman and her husband and
P. were indicted jointly for burglary
and receiving. The jury found P.
guilty of housebreakinff, and the
woman and her husband of receiv-
ing. Part of the stolen property
was found in the house where she
and her husband lived together; and
she, in the absence of her husband,
some time after the housebreaking,
was seen dealing with part of the
stolen things, when she made a state-
252
LARCENY AOT) RECEIVERS.
ment importing a knowledge that
they had been stolen. The judge
declined to leave it to the jury to
find whether she received the stolen
property from her husband or in his
absence : — ^Held, that the conviction
could not be supported. Heg. v.
Wardroper, Bell, C. C. 249 ; 8 Cox,
C. C. 284 ; 6 Jur., N. S. 232; 29 L.
J., M. C. 116 ; 8 W. R. 217 ; 1 L.
T., N. S. 416.
Husband and wife were jointly in-
dicted for stealing. The husband was
in the employ of the prosecutors, and
was seen near the spot when the prop-
erty stolen arrived at the prosecutors'.
The next day the wife was seen near
the spot where her husband was en-
gaged on his work. She was at a
spot where there was no road, with
a bundle concealed, and was follow-
ed home. On the foUoT^g day she
pledged the stolen property at two
different places. At one of the
places where she was not known she
pledged in a &lse name : — Held, that
upon this evidence the wife might
be convicted of stealing the property .
Hea^. Cohen, 18 L. T., N. S. 489 ;
16 W. R. 941 ; 11 Cox, C. C. 99—
C. C. R.
The prisoner's wife hired a bed-
stead at Is. per week, and within a
fortnight afterwards the prisoner
sold it to a broker, his wife being
present at the sale. Two days after
the sale the wife paid Is. for a week's
hire, being all that was paid. There
was no evidence that the prisoner
knew that the bedstead had only
been hired : — Held, that a conviction
for larceny could not be sustained.
JReg. V. ffalfard, 18 L. T., N. S. 334 ;
16 W. R. 731 ; 11 Cox, C. C. 88—
C. C. R.
(n) By Wtfs^s Paramour,
There is such a unity of interest
between husband and wife, that or-
dinarily the wife cannot steal the
goods of the husband, nor can an in-
different person steal the goods ^f
the husband by the delivery of the
wife; and if the wife delivers the
goodjs of the husband to an indiffer-
ent person, for that person to con-
vert them to his own use, this is ik)
larceny; but if the person to whom
the goods are delivered by the wife
is an adulterer, it is otherwise, and
an adulterer can be properly con-
victed of stealing the husband's
goods, though they are delivered to
him by the wife. JReg. v. Tbflett,
Car. & M. 112— Coleridge.
If no adultery has actually been
committed by the parties, but the
goods of the husband are removed
Srom the house by the wife and the
intended adulterer, with an intent
that the wife should elope with him,
and live in adultery with him, this
taking of the goods is, in point of
law, larceny. lb.
If a wife elopes with an adulterer
who takes her clothes with them,
the taking is a larceny ; and it is as
much a larceny to steal her clothes,
which are her husband's property,
as it would be to steal anything else
that is his property. Ih,
If a man and the owner's wife
jointly take away the husband's
goods, it may be larceny in the man,
though he was acting jointly with
the wife. JRex v. Tolfree, 1 M. C.
C. 243.
A prisoner cannot be found gmlty
of stealing goods, if it appears that
he could not otherwise get them
than by the delivery of the proeecu-
tor's wife, in which case it may be
presumed that he received them from
ner. Mex v. Harrison, 1 Leach, C.
C. 47 ; 2 East, P. C. 559.
An adulterer cannot be convict-
ed of stealing the goods of the
husband brought by the vnfe alone
to his lodgings, and placed hf
her in the room in which the adnl-
tery was afterwards committed,
merely upon evidence of their beii^
found there ; but it would be otb^-
wise if the goods could be traced in
any way to his personal possession.
Reg. V. Hosenberg, 1 C. & K 233
— ^Denman and Parke.
BY CLERKS OR SERVANTS.
258
A. assisting the wife of B. to take
B.'s goods, which are afterwards
used by them in common, without
the consent of B., is evidence to
warrant a conyiction against A. of
larceny. Beg. v. ITiompsanj 1 Den.
C.G.549; T. <fc. M, 294; 14 Jur.
488.
Defivery by the wife of her hus-
band's goods to her adulterer, he
having knowledge that she had tak-
en th«n without her husband's au-
tiiority, is sufficient to support an
indictment for larceny against the
adulterer. Iteg, v. Featkerstone,
Dears. C. C. 369 ; 2 C. L. R. 774;
18 Jut. 538; 23 L. J., M. C. 127;
6 Cox, C. C. 376.
If a person merely assists a mar-
ried woman, who has not committed,
or intended to commit, adultery, in
carrying away the goods of her hus-
band without the knowledge and
consent of the latter, though with
intent to deprive the latter of his
property, he cannot be convicted of
stealing the goods. Heg. v. Avery,
Bell, C. C. 150 ; 5 Jur., K S. 577 ;
28L J., M. C. 185 ; 7 W. R. 431 ;
32LT.138; 8 Cox, C. C. 184..
B. watching his opportunity when
the prosecutor was absent, took
*way the prosecutor's wife, and
with her several boxes filled with
the prosecutor's property. B. and
the wife were found living together
in adultery. The property was all
in their lodgings : — ^Held, that he
▼as indictable for stealing the prop-
erty 6f the prosecutor, as he took
the property under such circum-
fitances that the assent of the hus-
hand to the taking could not be
presumed. JReg. v. Berry, Bell, C.
C. 95 ; 5 Jur., N. S. 228 ; 28 L. J.,
M.C.70; 7 W.R. 240; 32 L. T.
829.
The prisoner, who lodged in .the
house of the prosecutor, agi'eed with
his wife that they diould go away,
and live together in adultery. The
prisoner left the house, and was fol-
lowed by the wife of the prosecutor.
They were afterwards ovei-taken on
the road in company together, the
prisoner carrying a bandbox con-
taining the wife's wearing apparel.
He was convicted upon an indict-
ment for stealing the property so
found upon him, the property being
laid as that of the husband : — ^Held,
that the conviction could not be sus-
tained. -Reg. V. Fitch, Dears. & B.
C. C. 187 ; 3 Jur., N. S. 524; 26 L.
J., M. C. 169 ; 7 Cox, C. C. 269.
Where a man assists a wife in
carrying off what he knows to be
her husband's property, and goes
away with her with the intention
of committing adultery, he is guilty
of larceny; and the facts that he
was in the husband's service, and
acted under the wife's directions in
removing the property, afford no
answer to the charge. JReg. v.
MuUere, L. &. C. 511 ; 10 Cox, C.
C. 50; 34 L. J., M. C.54; 13 W.
R.326; 11L.T., N. S.642.
A wife took her husband's goods
from Notting HilL, and she was found
committing adultery with the prison-
er at Liverpool, the husband's goods
being then in the prisoner's posses-
sion. There was no evidence that
they were under his control at any
place within the jurisdiction of the
Central Criminal Court : — Held,
that that court had no jurisdiction
to try the prisoner for the offence.
Reg. V. Prince, 11 Cox, C. C. 145
— Russell Gumey.
(o) By Clerks or Servants.
By 24 & 25 Vict. c. 96, s. 67,
" whosever, being a clerk or serv-
" ant, or being employed for the
" purpose or in the capacity of a
" clerk or servant, shall steal any
" chattel, money, or valuable secur-
" ity belonging to or in the posses-
" sion or power of his master or em-
" ployer, shall be guilty of felony,
" and being convicted thereof, shall
" be liable, at the discretion of the
" court, to be kept in penal servi-
" tude for any term not exceeding
254
LARCENY AND RECEIVERS.
" fourteen years and not less than
" five years (27 & 28 Vict. c. 47),
" or to be imprisoned for any term
" not exceeding two years, with or
" without hard labour, and with or
" without solitary confinement, and,
" if a male under the age of sixteen
" years, with or without whipping."
{Former provision, 7 & 8 Geo. 4, c.
29, 8. 46.)
The prisoner was occasionally
employed as a clerk to the prosecut-
ors, and having received from them
a cheque on their bankers, payable
to a creditor, for the purpose of
giving it to the creditor, appro-
priated it to his own use : — Held,
a larceny of the cheque. Rex v.
Metcalf, 1 M. C. C. 433.
It is larceny in the servant of
the drawer of a cheque on bankers
to whom it is given to deliver to a
third person, to appropriate the val-
ue to his own use. JReg, v. Heath,
2 M. C. C. 33.
Where a servant by a false pre-
tence induces his master to give him
a cheque as agent of a creditor of
his master with a view of its being
handed over to that creditor, and
the servant appropriates the cheque
to his own use, he cannot be indict-
ed for stealing it. Heg. v. Essex,
Dears. & B. C. C. 371 ; 4 Jur., K
S. 16; 27 L. J., M. C. 20; 7 Cox,
C. C. 384.
If a servant takes his master's
property, and hands it over to an-
other as a gift, it is as much a fel-
ony as if he takes it to a pawnbrok-
er and pledges it. Reg, v. White,
9 C. & P. 344— Gurney and Ers-
kine.
It is larceny for a person hired
for the special purpose of driving
sheep to a fair to convert them to
his own use, he having the inten-
tion so to do at the time of receiv-
ing them from the owner. Rex v.
Stock, 1 M. C. C. 87.
If the owner of goods employs a
person, not in his service, to take
them to a particular place, shews
them to a customer, and
them back, without authorizing him
to sell them to or leave them with
the customer, and he, instead of
taking the goods to the spedfic
place, sells them for his own advan-
tage, he will be guilty of larceny,
inasmuch as the felonious intent
came upon him at a time when he
had the custody only, and not the
possession, of the goods. Reg, y.
Harvey, 9 C. & P. 353— Alderson.
Tlie driver of a^lass-coach hired
for the day is not uie servant of the
party hiring it, so as to bring bhn
within 7 & 8 Geo. 4, o. 29, s. 46.
Rex V. Haydon, 7 C. & P. 445—
Patteson and Gurney.
If a servant receives from his
master goods to sell, and appro-
priates t^em to his own use, he is
not guilty of embezzlement bat lar-
ceny. Reg. V. Hawkins, 4 Cox, C.
C. 224.
The prisoner was employed by
the prosecutor to make up canvas
bags at his (the prisoner's) own house.
The canvas was cut out at the shop
of the prosecutor and taken away
by the prisoner. A portion of it
was duly worked up and retutned,
the remainder was converted by
him to his own use: — Held, that
he could not be convicted of lar-
ceny.— Reg, V. Saward, 5 Cox, C.
C. 295.
A. had agreed to buy straw of
B., and sent his servant C. to ietdi
it ; C. did so, and put down the
whole quantity of straw at the door
of A.'s stable, which was in a coart-
yard of A., and then went to A
and asked him to send some one
with the key of the hay-loft, whidi
was over the stable, which A did,
and C. put part of the straw into
the hay-loft, and carried the rest
away to a public-house, and sold it:
— Held, that this carrying away of
the straw by C, if done wiUi a
felonious intent, was a larceny, and
not an embezzlement, as the deliv-
ery of the straw to A. was complete
BY CLERKS OR SERVANTS.
255
when it was put down at the stable-
door. Reg. V. Hay%Dardy 1 C. &
K. ol8-Tindal.
Where a servant received money
from hifi master in order to pay the
wages of work-people therewith,
and in the book m which the ac-
count of the monies so paid was
kept by the master entries were
found charging the master with
more money than the servant had
actually disbursed; but there was
no proof that he had ever deliv-
ered this account to his master:
—Held, that this did not amount
to lareenv in the servant. Reg. v.
Btd&r, 2 C. & K. 340— Wightman.
On the trial of an indictment for
larceny as servant, it appeared that
the prisoner lived in the house of
the prosecutor, and acted as nurse
to his sick daughter, the prisoner
having board and lodging and occa-
sional presents for her services, but
no wa^. While the prisoner was
80 residing, the prosecutor's wife
gave the prisoner money to pay a
coal bill, which money the prisoner
kept, and bi*ought back a forged
receipt to the coal bill : — ^Held, that
the prisoner was not the servant of
the prosecutor, but that this was a
larceny of the money. Reg, v.
^Swi^, 1 C. & K 423— Coleridge.
A. employed B. to take his barge
from S. to E., and paid him his
^^^^ ui advance, and gave him a
separate sum of three sovereigns to
I»y the tonnage dues. B. took the
l»rge axteen nules, and paid ton-
luige dnes to an amount rather un-
der 2;., and appropriated the re-
BMuning sovereign to his own use :
—Held, a larceny. Reg. v. Ooode^
Oar. & M. 582 ; S. P., Reg. v. Rea-
»w», Car. & M. 595— Patteson.
The prisoner, who was not other-
wise in the prosecutor's service, was
cniployed by the prosecutor to drive
ax pigs from C. to TJ. On the way
he left one at Mr. M.'s stating that
it was tired, and he told the prose-
cutor that he had done so. The
prosecutor told the prisoner to go
and ask JVir. M. to keep the pig for
him. The prisoner went to Mr.
M.'s and sold the pig to Mr. M.: —
Held, no larceny. Meg. v. Jonea^
Car. & M. 611— Cresswell.
The prisoner was a servant in the
employment of grocers who were in
the habit of. purchasing kitchen-
stuff. It was his duty to receive
and weigh it, and, if the chief clerk
was in the counting-house, to give
the seller a ticket specifying the
weight and price of the article, and
the name of the seller, which ticket
was signed with the initials of the
prisoner. The seller, on taking this
ticket to the chief clerk, received
the price of the kitchen-stuff. In
the absence of the chief clerk the
prisoner had himself authority to
pay the seller, and afterwards, on
producing the ticket to the chief
clerk, was repaid. The prisoner had,
on the day mentioned in the indict-
ment, presented a ticket to the chief
clerk, purporting to contain all the
usual specifications, and marked
with the prisoner's initials, and de-
manded the sum of 28. 3d., which
he alleged that he had paid for
kitchen-stuff. He received the mon-
ey and appropriated it to his own
use, and it was afterwards discov-
ered that no such person as was
described in the ticket had ever
sold any such article to the prose-
cutors, but that the ticket was
fraudulently made out and pre-
sented by the prisoner : — Held, a
case of false pretences, and that an
indictment for larceny could not be
sustained. Reg. v. Mames, 2 Den.
C. C. 59 ; T. & M. 387 ; 14 Jur.
1123; 20 L. J., M. C. 34.
The prisoner was sent with his
master's cart for some coals. The
coals were delivered to the prisoner
and deposited in the cart, their price
being entered to the master's ac-
count. On the road home the pris-
oner disposed of a portion of the
coals : — Held, that this was larceny
of the coals and not embezzlement,
the prisoner having determined his
256
LARCENY AND RECEIVERS.
exclusive possession of the coals
when they were deposited in the
cart, and the possession from that
time being in the master. Reg, v.
Reed, Dears. C. C. 257 ; 2 C. L. R.
607 ; 18 Jur. 67 : 23 L. J., M. C.
25.
G. was indicted for larceny. The
evidence shewed that he was the
prosecutor's servant ; that it was
his duty to receive and pay monies
for the prosecutor, and make entries
of such receipts and payments in a
book which was examined by the
prosecutor from tune to time ; that
the piisoner on one occasion shewed
a balance in his favour of 2/., by
taking credit for payments falsely
enter^ in the book as having been
made by him, when in fact they
had not been made by him, and
that the prisoner received from his
master the sum of 2/., as a balance
due to him. He was convicted : —
Held, that the conviction was
wrong. Reg, v. Qreen, Dears. C.
C. 823 ; 2 C. L. R. 603 ; 18 Jur.
158 ; 6 Cox, C. C. 296.
Where a person gave his servant
a fih note to get changed, and he
got the note changed, and made off
with the change: — Held, to be no
larceny, but an embezzlement. Rex
V. SvXLem, Car. C. L. 819 ; 1 M. C.
C. 129.
A shopman was authorized to sell
his master's goods at the price
marked upon them, but at nothing
less. He sold a pair of trousers at
a lower price than that marked, and
embezzled the money : — Held, not
to be a larceny of the trousers.
Reg, V. BrackeU^ 4 Cox, C. C. 274
— Wightman.
A miller's foreman, employed to
sell goods and receive the money,
sold some to a customer, who paid
him for them. He did not enter
the sale in his books, or account for
the price, accoi-ding to the usual
course of business, but concealed
the whole transaction, and appropri-
ated the money :— Held, that there
being an actual binding sale as be-
tween the buyer and the employer,
he could not be convicted of steal-
ing the goods, although he was
guilty of embezzling the price. Reg,
V. BeU8, Bell, C. C. 90 ; 5 Jur., N.
S. 274 ; 28 L. J., M. C. 69 ; 7 W.
R. 239 ; 32 L. T. 339 ; 8 Coi, G
C. 140.
Tlie prisoner was tried upon an in-
dictment which charged, that wfailst
the servant of A. he stole money
belonging to A. The evidence was,
that the prisoner was the servant
of B., and that the money beloi^ed
to B., but was in the possesaon of
A. as the agent of B. He was ac-
cordingly convicted of simple lar-
ceny : — Held, that the conviction
was right. Reg, v. Jennings, Dean.
6 B. C. C. 447 ; 4 Jur., N. S. 146;
7 Cox, C. C. 397.
The prisoner was employed to
conduct an office in connection with
a branch bank. His salary included
his services and the providing an
office, which was in his own house,
where he carried on another busi-
ness. The office was fitted up at
the expense of the bank, and in it
there was an iron safe, the propet^
of the bank, into which it was fas
duty, when night came, to put any
money received during the day
which had not been required. The
manager of the branch bank kqpt a
duplicate key of this safe. It was
the prisoner's duty to receive money
from customers, to be put to tixir
accounts with the branch bank, and
to pay cheques. He furnished ac-
counts to tne manager, and it was
his duty to pay over weekly to the
manager the excess not required at
the office. He also reodved monies
from the branch as required, which
were entered in his weekly accounts.
In September, 1855, his aecountfi
were audited, and his casii found
correct; and from that time up to
September, 1857, he oontinued to
furnish weekly accounts which woe
correct in their statements of re-
ceipts and payments, but no exam-
ination of the balances appearing
BY CLERKS OR SERVANTS.
257
from those accounts to be in his
hands took place. At the latter
date, however, he was about 3,000^.
short in his accounts, and admitted
that he had taken that amount.
The jury found the prisoner guilty
of krceny as a clerk, in having
stolen gome money received from
eostomers, which before such steal-
ing had been placed in the safe, and
made the subject of a weekly ac-
connt : — ^Held, that it was not nec-
essaiy that the jury should find any
specific amount to have been stolen
on any particular day, and that
tibere was evidence to go to the
jpy of larceny. Seg. v. Wrighty
Dears. & B. C5. C. 431 ; 4 Jur., N.
8. 313 ; 27 L. J., M. C. 65 ; 7 Cox,
C. C. 413.
It was the duty of a clerk to the
prosecutors to ascertain daily the
amount of dock and town dues pay-
able by the prosecutors on the ex-
portation of their goods, and, hav-
ing received the money from the
piogecutors' cash-keeper, to pay it
over to those who were entitled to
it; the clerk falsely represented
that a sum of 3^. 10s, 4d. was due
on a certain day, whereas, in truth,
a sum of 1^. Bs. only was due, and,
having obtained the larger sum
from the cash-keeper, converted the
difference to his own use: — Held,
that he was not guilty of larceny,
hnt might have been convicted of
obtaining money by felse pretences.
lUg, V. Thompson, L. & C. 233 ;
» Cox, C. C. 222 ; 32 L. J., M. C.
57; 8 Jur., N. S. 1162 ; 11 W. R.
41 ; 7 L. T., N. S. 393.
A servant's duty was to give out
materials to be wrought up, and
pay the workmen when the work
was finished, and for this purpose
he received cash from his masters,
and at the end of each week he ac-
connted with them for sums so re-
ceived and paid. The cash was
kept by him, but he was not author-
tted to apply the money in any
other way. He paid C. 13«., and
fraudulently charged his employers
as having paid lis, Sd., and appro-
priated the Is, Sd. to his own use :
— ^Held, to amount to larceny. Seg.
V. Low, 10 Cox, C. C. 168 ; 14 W.
R. 286 ; 13 L. T., N. S. 642— C.
C.R.
A person employed as a distraining
broker, if engaged in the service of
the prosecutor only, and paid a salary
by him, is a servant within 24 & 25
Vict. c. 96, 8. 67. jReg, v. JFlana-
gan, 10 Cox, C! C. 561 — Russell
Gumey.
A man was indicted for larceny
as a servant. He was groom in the
service of the prosecutor, and was
suppUed by his master with money
to pay for the keep of the stallion
of which he had the charge. In
the course of his employment he
stated that he had paid three sums
of 7s, 2d., 7s, id, and 7s, &d,, to
one Thomas Payne, which was un-
true, and appropriated these sums
to his own use : — ^Held, that it was
not larceny. Beg, v. DartneU, 20
L. T., N. S. 1020— Byles.
Money was given to the prisoner
for the purpose of pa3^ng turnpike
tolls at two gates on his journey.
Twelve days afterwards, on being
asked if he had paid the toll at one
of the gates, the prisoner said he
had not — ^that he had gone by a
parish road which only crossed the
road at the gate, and so no toll was
payable there, and that he had spent
the money on beer for himself and
his mates. The prisoner having
been convicted of larceny of the
money, but it not appearing on a
case reserved as to whether the
facts proved a larceny, that the
question of felonious intention had
been distinctly left to the jury, the
court quashed the conviction. Reg,
V. Deering, 20 L. T, N. S. 680 ;
17 W. R. 807 ; 11 Cox, C. C. 298
— C. C, R.
The prisoner lived with the pros-
ecutor as his wife, and was author-
ized by him to draw and sign
258
LARCENY AND RECEIVERS.
cheques and bills in liis name, he
being blind and unable to do this
himself. He entrusted her with a
large sum of money to pay into the
bank, which she did not do, but
appropriated it to her own use: —
Held, that the question, whether
she was a servant to the prosecutor,
was one for the jury. Heff, v.
Warren, 10 Cox, C. C. 359— Cham-
bers, C. S.
A., carrying on business on his
own account, entered into an en-
gagement with B. to sell goods for
him, and for certain purposes to be
his servant. B. entrusted A. with
certain goods to dispose of in a par-
ticular way. A. converted them to
his own use : — Held, that it was a
question for the jury to say wheth-
er, when A. received the goods, he
had the intention of misappropri-
ating them. Heff. v. Waller, 10
Cox, C. C. 860— Russell Gumey,
Recorder.
(p) Bt/ Fraudulent Bailees.
Who are.]— By 24 & 25 Vict. c.
96, s. 3, " whosover, being a bailee
* of any chattel, money, or valua-
*ble security, shall fraudulently
^take or convert the same to his
* own use, or the use of any person
* other than the owner thereof, al-
' though he shall not break bulk or
^ otherwise determine the bailment,
* shall be guilty of larceny, and
*may be convicted thereof upon
*an indictment for larceny; but
Hhis section shall not extend to
'any offence punishable on sum-
' mary conviction." {Former pro-
vision, 20 <& 21 Vict. c. 54, s. 4.)
A bailee charged with fraudu-
lently converting bailed property
under 20 & 21 Vict. c. 54, s. 4, was
indicted in the ordinary form as for
larceny, with a conclusion contra
forman : — Held, good. Meg. v.
Haigh, 7 Cox, C. C. 403— Wight-
man.
A bailment under this section
has reference to something depos-
ited with another to be returned in
specie, and does not apply to the
case of a treasurer of a money club,
who is under no obligation to re-
turn to the members the specific
coins intrusted to him. Reg, t.
Basaall, L. & C. 58; 8 Cox,C.G
491 ; 7 Jur., N. S. 1064 ; 30 L. J.,
M. C. 175 ; 9 W. R. 708; 4 L T.,
N. S. 561 ; S. P., Heff. v. GarreU,
8 Cox, C. a 368 ; 2 F. & F. 14-
Willes.
A person who receives money <m
behalf of another, does not therebj
become a bailee of the money.
Beff. V. Hbare, 1 F. & F. 647—
Wightman.
B. was charged in a first coont
with larceny as a bailee. In a sec-
ond count with larceny : B. was a
married woman, living with her
husband, and at the request oft
lodger in her husband's house took
charge of his box, containing mon-
ey. She afterwards fraudulently
stole the money, and converted it
to her own use. The hasband
knew nothing whatever of the
transaction : — ^Held, that either she
was a bailee, and guilty imder the
first count ; or, if not a bailee, she
was guilty of larceny under the
second count. Beg. v. Bobdon, L
& C. 93 ; 9 Cox, C. C. 29 ; 8 Jur.,
N. S. 64; 81 L. J., JVL C. 22; 10
W. R. 61 ; 5 L. T., N. S. 402.
A bailment under the 21 d; 22
Vict. c. 54, s. 4, does not neces-
sarily mean a bailment by contract,
but a bailment by licence is siiffi*
cient. lb. — Martin.
A., being somewhat tipsy, lay on
the ground, partly asleep, and
while in that state saw the prisoner
take his watch out of his pocket,
which he took no steps to prevent,
believing that the prisoner, with
whom he had been acquainted for
some time, was acting solely frtni
friendly motives: — ^Held, tiiat this
evidence would not support a
charge of larceny at common law,
but disclosed a sufficient bailment
BY FRAUDULENT BAILEES.
259
to bring the ease within the above
enactment. Meg, v. JReeves, 5 Jur.,
N. S. 716 — Crowder.
A., who was a trustee of a friend-
ly society, was appointed by a reso-
lution of the society to receive
money from the treasurer, and
carry it to the bank. He received
the money from the treasurer's clerk,
but instead of taking it to the bank,
he applied it to bis own purposes.
He was indicted for stealing, as
bailee of the money of the treas-
urer, and also for a common law
larceny, the money being laid as
that of the treasurer. The 18 &
19 Vict. c. 63, 8. 18, vests the prop-
erty of friendly societies in the
trustees, and directs that in all
indictments the property shall be
laid in their names : — Held, that A.
could not be convicted either as a
bailee or of a common law larceny.
Reg. V. Loose, Bell, C. C. 259 ; 29
I. J., M. C. 132 ; 8 Cox, C. C.
302; 6 Jur., K S. 513; 8 W. R.
422;2LT.,N.S. 254.
Indictment charged the prisoner
with obtaining 26J. 5«., the monies
of H., by false pretences. Accord-
ing to the prosecutor's evidence, he
was mduced to part with the mon-
ey on the prisoner's statement that
he was to pay 135^. for a pair of
carriage horses. No such averment
was contained in the indictment.
It was urged that the prisoner
nu^bt be convicted of larceny as a
^ee; but the money having been
obtained by fraud, and the prose-
cutor having parted with all con-
trol as well over it as with the pos-
seaaon: — Held, that there was no
bailment, and that he could not be
convicted. Beg. v. ITimt, 8 Cox,
C. C. 495 — Russell Gurney, Re-
corder.
The prosecutor gave the prisoner
njoney to buy half a ton of coals for
Wm. He bought the coals, and took
a receipt in his own name, and used
bis own horse and cart to fetch them,
W on the way home he appropriated
» portion of the coals to his own use,
and afterwards pretended to the pit),
secutor that he had delivered to him
the full quantity : — Held, that even
if it was necessary to shew a specific
appropriation of the coals to the
prosecutor, there was suiiicieut evi-
dence of such appropriation, and
that the prisoner was rightly con-
victed of larceny as a bailee. JReg,
V. BimkaU, L. & C. 371 ; 9 Cox,C.
C. 419 ; 10 Jur.,N. S. 216 ; 33 L.
J., M. C. 75 ; 12 W. R. 414 ; 9 L.
T., N. S. 778.
To sustain a chai"ge of larceny by
a bailee it is necessary to prove some
act of conversion inconsistent with
the purposes of the baibnent. JReg.
V. Jackson, 9 Cox, C. C. 505 — JMar-
tin.
A carrier who, receiving money
to procure goods, obtained and duly
delivered the goods, but fraudulent-
ly retained the money, may be con-
victed of larceny as a bailee. JReg.
V. Weils, 1 F. & F. 109— Erie.
A carrier employed by the prose-
cutor to deliver m his (the prisoner's)
cart a boat's cargo of coals to per-
sons named in a list, to whom only
he was authorized to deliver them,
and, having fraudulently sold some
of the coals, and appropriated the
proceeds, is preperly convicted of
larceny as a bailee. Heg, v. Davies,
14 W. R. 679 ; 14 L. T., K S. 491
— C. C. R.
Husband and Wife.'] — A married
woman, at the request of A., took
charge of his box containing money,
and afterwards fraudulently stole
the money. The husband had no-
thing to do with any part of the
matter : — Held, that she was guilty
either of fraud as a bailee or of a lar-
ceny. Iteg. V. Hobson, 31 L. J.,
M. C. 22 ; L. & C. 93 ; 9 Cox, C.
C. 29 ; 8 Jur., N. S. 64 ; 10 W. R.
61 ; 5 L. T., K S. 402.
Where husband and wife were
jointly indicted for larceny, as bailees,
and it was proved that they took
charge of the property, but the wife
alone disposed of it afterwards: —
260
LARCENY AND RECEIVERS.
Held, that neither could be convict-
ed ; the wife, because she could not
be a bailee ; the husband, because
he was not proved to have taken
' mrt in the conversion. Reg. v.
l)enmour^ 8 Cox, C. C. 440 — ^Mar-
tin.
(q) By parties in concert.
Where two planned to rob the
prosecutrix of some coats, and one
got her to go with him that he
might get some money to buy them
of her, and she left the coats with
the other, who immediately ab-
sconded with them: — Held, that
the receipt of the one amounted to
a felonious taking of the coats by
both. Rex v. Vovnty^ 2 Russ. C.
& M. 230, 329— Bayley.
Where the evidence against two,
indicted for stealing oats, was that
one of them took the oats from the
prosecutor's sacks, and placed them
under a cart, and the other came up
a few minutes after, and said, " It is
all right," and put the oats in a
cart, and took them to his house;
on an objection that there was no
evidence to connect the latter with
the original taking : — ^Held, that the
evidence shewed one transaction in
which both concurred. Reg, v. Kel-
ly, 2 Cox, C. C. 171— Maule.
J. had employed M. to load sacks
of oats, the property of J., from a
vessel in the trams of K., who was
to carry them on the trams to the
warehouse of K. By previous con-
cert between M. and K., oats were
taken by M. from two of the sacks
and put into a nose-bag in the ab-
sence of K., and hidden under a tram.
K. returned in a few minutes, and
took the nose-bag, and its contents,
from under the tram, and took them
away, M. being then within three
or four yards of him ; — ^Held, that
both were principals in the larceny,
and that K. was not a receiver;
and that, as it was all one transac-
tion, and both had concurred in it,
and both had been present at some
part of the transaction, both could
be convicted as principals in die
larceny. Reg, v. WCarthy^ 2 C
& K. 379— Maule.
2. By Peraons in the Queen^s S&rt^
ice, or by the Police.
By 24 & 25 Vict. c. 96, s. 69,
" whosoever being emploved in the
" public service of her Majesty, or
"being a constable or other per-
" son employed in the police of any
" county, city, borough, district or
" place whatsoever, £all steal any
" chattel, money or valuable secor-
" ity belonging to or in the posses-
" sion or power of her Majesty, or
" intrusted to or received or tikei
"into possei^on by him by virtue
" of his employment, shall be gjailty
"of felony, and, being convictoa
" thereof, shall be liable, at the dis-
" cretion of the court, to be kept in
" penal servitude for any term not
" exceeding fourteen years, and not
" less than five years (27 & 28 Vict
" c. 47), or to be imprisoned for any
"term not exceeding two yeare,
" with or without hard labour, and
"with or without solitary confine-
" ment."
An indictment, framed upon 2 &
3 Will. 4, c. 4, s. 1, allied that A.,
being employed in the piiblic service,
and intrusted, by virtue of such em-
ployment with the receipt of money
the property of the Queen, fraudu-
lently applied to his own use 5,00(tf.
so received, and feloniously stole the
same. It was proved that he was
an officer of inland revenue, and re-
ceived certain taxes; that it waa
his duty to make returns to inqjeci-
ors, and that these returns, when
rendered, shewed a much larger
balance in his hands than he was
allowed to retain. At last his ac-
counts were examined, and a state-
ment extracted from them was pro-
duced to him, shewing a balance in
his hands of 5,214/. and a fraction,
which he admitted to be correct
He was then asked if he was pre-
pared to hand over that balance, or
any part of it, and he said he was
BY POST-OFFICE SERVANTS.
261
not. He was then reminded that
there was a halance of 300/. against
him from the previous Monday,
which was a receipt day at T. A.
then took out a sum of money less
than the 300/., and, on being asked
what he had done with the rest, said
he had spent it in an unfortunate
speculation: — ^Held, that the evi-
oence in respect of the 300/. was
sofScient to sustain a conviction.
%. V. Moah, Dears. C. C. 626 ; 2
Jut., N. S. 213 ; 25 L. J., M. C. 66.
3. By Post-Office Servants and
ethers,
(7 Fa 4 cfc 1 Vict. c. 86, s. 26.)
What anwitnts to a Stealing,] —
Frandolently obtaining the mail
hags by defivery from one in the
post^ffice to the prisoner, is a steal-
ing out of the post-office. JRex v.
Pearce, 2 East, P. 0. 603.
T\ie horse mail bags, bein^ left
hy the mail rider after he had tak-
en possession of them for a tempo-
mry purpose for two minutes, were
stolen during his absence : — Held,
within the 52 Geo. 3, c. 143, s. 3.
Sex Y. Robinson^ 2 Stark, 485.
Servants.] — S. delivered two 5/.
notes to D., the wife of the post-
master of C, at which post-office
money orders were not granted,
and asked her to send them by G.,
the letter-carrier, from C. to W., in
order that he might get two 51.
money orders for them at the W.
post-office. D. gave these instruc-
tijms to G., and put the notes, by
his desire, into his bag. G. after-
wards took the notes out of the
^, and pretended, when he got to
the W. post^-office, that he had lost
*^. It was found by the jury
^t Gr. had no intention to steal
the notes when they were given to
him by D.:— Held, that this taking
of the notes by G. was not a lar-
ceny, the notes not being in his
possession in the course of his duty
w a post-office servant. Beg. v.
Glass, 2 C. & K. 395 ; 1 Den. C.
0. 215.
S., post-mistress of G., received
from a letter unsealed, but ad-
dressed to 6., and with it 11. for a
post^-office order, 3d. for the pound-
age on the order. Id. for the post-
age, and Id. for the person who
got the order. S. gave the letter,
unsealed, and the money, to the
prisoner, who was the letter-carrier
from G. to L., telling him to get
the order at L. and enclose it in
the letter, and post the letter at L.
The prisoner destroyed the letter,
never procured the order, and kept
the monev : — Held, that he was in-
dictable JOT stealing, embezzling and
destroying a post letter, he being at
the time m the employ of the post-
office. Beg. V. Bickerstaff^, 2 C. <fc
K. 761— Cresswell.
A person employed in the post-
office committed a mistake in the
sorting of two letters containing
money, and he threw the letters
unopened, and the money, down a
water-closet, in order to avoid a
penalty attached to such mistakes :
— ^Held, that there was a larceny of
the letters and money, and al8»o a
secreting of the letters. Beg. v.
Wynn, 2 C. & K. 859 ; 1 Den. C.
C. 365 ; T. A M. 32 ; 3 New Sess.
Cas. 414; 13 Jur. 107; 18 L. J.,
M. C. 51 ; 3 Cox, C. C. 271.
If a person, while engaged in
gratuitously assisting a postmaster,
at his request, in sorting the letters,
steals one of them, he is liable to
the severer penalties imposed by 7
Will. 4 A 1 Vict. c. 36, s. 26, as a
person employed under the post-
office. Beg. V. Beason, 2 C. L. R.
120 : 23 L. J., M. C. 11 ; 6 Cox, C,
C. C. 227 ; Dears. C. C. 226 ; 17
Jur. 1014.
A. was indicted for stealing a
post letter containing money, he
being a sub-sorter at the general
post-office. An inspector of the
post-office had put some marked
money into a letter, which was
then sealed, and stamped with the
262
LARCENY AND RECEIVERS.
usual postage stamp. It was ad-
dressed to Mr. H., and delivered in
at the window of the post-office to
another inspector, who handed it
to a third. This last locked it up
for the night, and on the following
morning gave it to a sorter, who,
according to his instructions, secret^
ly placed it among other letters,
which A. in due course would have
to sort. He opened and secreted
the letter, abstracting the money,
which was found upon him. It
was no part of the ordinary duty
of the inspector to receive letters
at the window, but the whole
scheme was arranged for the de-
tection of A.: — Held, that he could
not be convicted of stealing a post-
letter. Reg, V. Shepherd^ Dears.
C. C. 606 ; 2 Jur., N. S. 96 ; 25 L.
J., M. C. 52.
A letter carrier, whose duty it
was, in case he was unable to de-
liver any letter, to bring it to the
post-office on his return from de-
livery, not having delivered a letter
containing money, gave no account
of it, and being asked why he had
not delivered it, produced it un-
opened, and the coin safe mthin,
from his trousers pocket, stating,
untruly, that the house where it
ought to have been delivered was
closed. Upon an indictment for
stealing the letter, the jury found
him guilty, and that he detained it
with the intention of stealing it : —
Held, that so dealing with the let-
ter amounted to larceny. Reg. v.
Poynton, 9 Cox, C. C. 249 ; L. &
C. 247 ; 8 Jur., N. S. 1218 ; 32 L.
J.,M. C. 29; 11 W. R. 73; 7 L.
T., N. S. 434.
A person employed at a receiv-
ing house of the general post-office
to clean boots, and to assist in
tying up the letter bag, was not a
servant of the post-office within 52
Geo. 3, c. 143, s. 2. Rex v. Fear-
son, 4 C. & P. 572 — Littledale and
Bosanquet.
S. was employed by a post-mis-
tress to carry letters from Duretey
to Berkeley, at a weekly salary
paid him by the post-mistress, but
which was repaid to her by the
post-office : — ^Held, that S. was a
person employed by the post-office
within 52 Geo. 3, c. 143, s. 2. /2a
V. Salisbury, 5 C. 4S? P. 155— Pat-
teson.
Receiving-Houses,']— A receiving,
house was not a post-office withm
52 Geo. 3, c. 143, s. 2, but it was a
place for the receipt of letters, and
the whole shop was to be conad*
ered as the place for the receipt of
letters, and not the mere letter-
box ; and therefore if a person took
a letter and put it on the shop-
counter of the receiving-house or
gave it to one of the persons be-
longinff to the shop there, that was
a puttmg the letter into the post.
Rex V. Pearson, 4 C. A P. 572-
Littledale and Bosanquet.
To constitute the offisnce of steal-
ing a letter from a place for the
receipt of letters, under 52 Geo. 8,
c. 143, 6. 2, it was essential that
the letter should be carried out of
the shop which was the place for
the receipt of letters; and, there-
fore, if a person took a letter and
stole its contents, without taking
the letter out of the shop, that wa?
not an offence, within that statute.
lb.
Letters and Post-G^ffke Orders.]^
The president of a department in
the post-office put a half-sovereign
into a letter, on which he wrote a
fictitious address, and dropped the
letter, with the money in it, into
the letter box of a post-office !<v
ceiving-house, where the prisoner
was employed in the service of the
post-office. The prisoner stole the
letter and money : — Held, that thi?
was a stealing of a post letter, con-
taining money, and that this ww
not the less a_post letter within 7
Will. 4 & 1 Vict. c. 86, s. 26, be-
BY POST-OFFICE SERVANTS.
263
cause it had a fictitioas address.
Reg. V. Young, 2 C. A K. 466 ; 1
Den. C. C. 194.
R., an officer in the post-office in
London, intending to try the hon-
esty of 6., the post-mistress of En-
rtone, went to Oxford, and having
pat marked money into a letter,
directed "Thomas Hicks, Radford
Lane, Exeter," placed this letter in
a handle of letters in the Oxford
wwt-office, which was to go to the
Enstone post-office. This letted go-
ing m the bundle of letters to the
Enstone post-office, G. took out the
marked money, and denied any
knowledgeof the letter. R. neither
knew any person named Thomas
Hicks, nor that there was any such
place as Radford Lane in Exeter :
•-Held, that this was not a steal-
ing of a post letter, but that the
taking of the money by G. was a
larceny. Beg. v. Gardener, 1 C.
6 K. 628— Pollock.
A post^ffice being at an inn, a
person was sent to put a letter, con-
taining promissory notes, into the
the post. He took it to the inn,
with money to pre-pay the post-
age; he did not put it into the letter-
box, hut laid the letter, and the
nwney upon it, upon a table in the
passage of the inn, in which passage
the letter box was, and he pointed
out the letter to the prisoner, who
was a female servant at the inn, who
said she would " give it to them."
The prisoner, who was not author-
ized by the inn-keeper, her master,
to receive letters for him, stole the
the letter and its contents : — Held,
that this was not a post-letter within
7 WiU. 4 & 1 Vict, c 86, ss. 27, 28 ;
and that the stealing of the letter
and its contents by the prisoner was
not an offence within either of those
wetions. Reg. v. Harley, 1 C. & K.
B9-.Patteson.
An inspector secretly put a letter,
prepared for the purpose, cx)ntaining
a sovereign, amongRt some letters,
which a letter earner, suspected of
honesty, was about to sort. The
letter-carrier stole the letter and the
sovereign: — Held, not rightly con-
victed of stealing a post-letter, such
letter not having been put in the
post in the ordinary way ; but right-
ly convicted of larceny of the sov-
ereign, laid as the property of the
Postmaster-Greneral. Keg, v. Jtath-
hone, 2 M. C. C. 242 ; Car. & M. 220.
A servant, being sent with a letter,
and a penny to pre-pay the postage
of it at a receiving-house, found the
door shut, and in consequence put
the penny inside the letter, and fas-
tened it in by means of a pin, and
then put the letter into an unpaid
letter-box. A messenger in the Gen-
eral Post-office stole this letter, with
the penny in it: — ^Held, that he
might be convicted of stealing a
post -letter containing money, al-
though the money was not put into
the letter for the purpose of being
conveyed, by means of it, to the
person to whom it was addressed.
Reg. V. Mence, Car & M. 234 —
Denman.
A post-office order, for the pay-
ment of bl. in the ordinary fonn, is
a warrant and order for the payment
of money, and may be so described
in an indictment for larceny. Reg.
V. Gilchnst, 2 M. C. C. 233 ; Car. &
M. 224.
A. Brought a letter, enclosing a
10/. note, to a district receiving-
house, and desired that it might be
registered. The post-mistress took
the money for the registration, and,
being busy at the time, requested A.
to call agam. In the meantime she
put the letter under a glass case, to
which the prisoner had access. When
the letter was taken up, for the pur-
pose of being despatched, it was
found that the note had been ex-
tracted : — ^Held, that the letter was
a post-letter. Reg. v. Rogers, 5 Cox,
C. C. 293— Cresswell.
A letter containing a post-office
order, directed to John Davies, was
misdelivered to John Davis, one of
tha prisoners. Not being able to
read, he took it to W. D., the other
264
LARCENY AND RECEIVERS.
priKoner who read it to him. He then
said the letter and order were not for
him, but was advised by W. D. to
keep them and get the money. Both
prisoners then went to the post-of-
fice, obtained the money and appro-
priated it to their own use : — ^Held,
that a conviction for larceny of the
order could not be supported. Reg.
V. Daviesy Dears. 0. C. 640 ; 2 Jur.,
N. S. 478 ; 25 L. J., M. C. 91 ; 7 Cox,
C. C. 104.
Where a prisoner had obtained
letters from the post-office by wisely
representing that he was sent for
them by the person to whom they
were addressed: — Held that if he
then meant to steal them he might
• be convicted of larceny. Heg. v,
GiUings, 1 F. A F. 36— Channell.
Indictment,'] — ^In an indictment on
7 Will. 4 & 1 Vict. c. 86, s. 26, for
secreting a post letter, it is not nec-
essary to state the purpose for which
the letter was secreted. Meg, v.
Wyrm, 2 C. & K. 859 ; 1 Den. C.
C. 865; T. & M.82; 18 L. J.,M.C.
51.
Evidence,'] — ^Possession by a letter
carrier of a oank note some months
after it has been sent by post and
lost, is not sufficient evidence of a
felonious stealing by him, although
not accounted for otherwise than by
his mere assertion that he found it.
Reg, V. Smith, 3 F. & F. 123—
Bramwell.
At the trial of a person on 52 Geo.
3, c. 143, s. 2, for embezzling a let-
ter containing a bill of exchange, he
being at the time employed under
the post-office, it was sufficient to
prove that such person acted in the
service of the post-office, and it was
not necessary to go into proof of his
appointment. Rex v. Rees, 6 C. ife
P. 606— Parke.
4. Jn a DweUing-house.
To the value o/£5.]— By 24 A 25
Vict. c. 96, s. 60, " whosoever shall
^' steal in any dwelling-house any
^^ chattel, money, or valuable secur-
" ity (as to the interpretation of this
'^ word, see sect. 1) to the value m
'^ the whole of 5/. or more, shall be
"guilty of felony, and bemg eon-
" victed thereof, ^all be liable, at
" the discretion of the court, to be
"kept in penal servitude for any
" term not exceeding fourteen years,
"and not less than five years (27
" & 28 Vict. c. 47), or to be im*
" prisoned for any term not exoeed-
"mg two years, with or without
" hard labour, and with or without
" solitary confinement." {Fwmer
provisions, 7 <k 8 Greo. 4, c. 29, 8.
12, and Anne, st 1, c 7, respedivdg
repealed.)
If a prisoner, who was in the so'-
vice of the prosecutor, stole a quan-
tity of lace in several pieces, the
pieces together being above 521 in
value, and brought them all out of
his master's house at the same time,
this was a capital offence, althoo^
it was shewn that the prisoner had
the opportunity of steahng the laoe
by a piece at a time, and that do
one of the pieces was worth 51
Rex V. Jones, 4 C. & P. 217— Bol-
land.
A servant indicted for stealii^
bank-notes, the property of her mas-
ter, in his dwelluig-house, set up, as
her defence, that me found tliem in
in the passage, and not knowing to
whom they belonged, kept them to
see if they were advertised : — ^Held,
she ought to have inquired of her
master whether they were his or not;
and that not having done so, but
having taken them away from the
house, she was guilty of steahng
them. Reg. v. Kerr, 8 C. & P. 176
—Park.
Stealing in a bed-room over a
stable in a yard, not under the same
roof, nor having any direct oonmrn-
nication with the house in which the
prosecutor resides, cannot be proper-
ly charged as a stealing in his dweh
Img-house. Rex v. I^mer, 6 C. &
P. 407— Vaughan.
If one, on going to bed, puts his
m A DWELLING-HOUSE.
265
clothes and money by the bed-side,
they are under the protection of the
dwelling-house, and not of the per-
son; and, therefore, a party steal-
ing them may be convicted of steal-
ing in a dwelling-house. JRex v.
Tkonrn, Car. C. L. 295.
A man went to bed with a pros-
titute, having put his watch in his
hat on the table; the woman stole
the watch whilst he was asleep : —
Held, that the offence was that of
stealing in a dwelling-house, and not
a 5teali-jg from the person. Meg, v.
Hamilton, 8 C. & P. 49— Parke and
Pitteson.
Under 12 Anne, st. 1, c. 7, the
larceny must have been of things un-
der the protection of the house, and
not of any person within it, there-
fore not of money in* the pocket.
Rex V. Owen, 2 East, P. C. 645 ; 2
Leach, C. C. 572.
Property left by mistake at a
house, and delivered to the occupier,
nnder the supposition that it was
for one of the persons in the house,
is entitled to the protection of the
house. Bex v. CarrolL 1 M. 0. C.
89.
The goods of a lodger's guest are
nnder the protection of the dwel-
Kng-house; therefore a lodger who
invites a man to his room, and then
steals his goods to the value of 40<.
(now 5/.) when not about his person,
}8 liable to be found guilty of steal-
ing m a dwelling-house. Hex v.
%^«-, R. & K C. C. 418.
Stealing in a dwelling-house to the
value of 5/. or more by the owner of
the house was within 7 & 8 Geo. 4,
c. 29, 8. 12. Heg. v. Bowden, 2 M.
C. C. 285 ; 1 C. & K. 147.
A servant let a person into his
coaster's house on a Saturday after-
noon, and concealed him there all
^ht, in order that he might rob
the house, and on Sunday morning
left the premises. In pursuance of
fhe previous arrangement, the man,
in the servant's absence, broke into
the bed-room of the master, and
rtole the contents of his cash-box : —
Fish. Dig.— 20.
Held, that the man who took the
property from the cash -box was
rightly charged as a thief. Reg, v.
TackweU, Car. & M. 215— Cole-
ridge.
A member of a club was indicted
for stealing some of the plate used
at the club-house. The house-stew-
ard slept in the house, and stated,
that he had the charge of all the
plate, and was responsible for it;
but the plate was delivered every
night to the under-butler, who was
appointed by the club, and by him
placed in a chest in the pantry.
The indictment described the goods
as the property of the house-stew-
ard, and alleged it to have been
stolen in Ijis dwelling-house : — Held,
that, upon the evidence, it was
wrong in both respects, inasmuch as
his sleeping in the house was only
as a servant of the club, and his al-
leged responsibility was not coupled
with any custody of the property,
either by himself or his own serv-
ants. Beg, V. Ashley, 1 C. & K. 198
— Law and Bullock.
Indictment,'\ — A. and B. were
found guilty on an indictment con-
taining two counts — one for steal-
ins in a dwelling-house above the
value of 5/., and the other for sim-
ple larceny, and the judgment was,
that they should be transported for
ten years for the felony aforesaid : —
Held, that the judgment was bad ;
as either the indictment alleged one
felony in two counts, in which case
the judgment was bad for uncertain-
ty, the court not having the power
to apply it to the particular coimt in
the mdictment which would support
it ; or it alleged a separate felony on
each count, in which case, the jury
having found but one offence, the
judgment is bad, because the word
felony cannot be treated as nomen
coUectionis. Campbell v. Beg, (in
error), 2 New Sess. Cas. 297 ; 11 Q.
B. 799 ; 10 Jur. 329 ; 15 L. J., M. C.
76.
In an indictment for attempting
266
LARCENY AND RECEIVERS.
((
U
to steal goods in a dwelling-house,
it is not necessary to specify any
particular article or articles. A
general allegation of an attempt to
steal "goods and chattels" is suf-
ficient. Heff. V. Johnson, 10 Jur.,
N. S. 1160; 34 L. J., M. C. 24; 13
W. R. 101 ; L. & C. 489.
With Menace8,]~By 24 & 25
Vict. c. 96, s. 61, " whosoever shall
steal any chattel, money or valu-
able security in any dwelling-
" hou6e,^nd shall by any menace or
" threat put any one being therein
"in bodily fear, shall be guilty of
" felony, and, being convicted there-
" of, shall be liable, at the discretion
" of the court, to be kept in penal
" servitude for any term not exceed-
"ing fourteen years, and not less
" than five years (27 & 28 Vict. c.
"47), or to be imprisoned for any
"term not exceedmg two yeara,
" with or without hard labour, and
"with or without solitary confine-
"ment." {Former provision, 7
Will. 4 & 1 Vict. c. 86, s. 5.)
An indictment for stealing in the
dwelling-house, persons being there-
in and put in fear, must state that
the persons were put in fear by the
prisonei's. Rex v. EtheringUm, 2
Leach, C. C. 671 ; 2 East, P. C. 635.
In order to constitute the oflfence
of stealing in a dwelling-house, and
by menaces and threats putting per-
sons being therein in bodily fear, it is
not necessary that all the persons
engaged in the ciime should be act-
ually in the house ; and if one re-
mains outside, he may be equally
guilty of using menaces and threats,
if there was a common purpose to
inspire ten-or. Meg, v. Murphy, 6
Cox, C. C. 340— Williams.
A threat to a per^n outside the
house is not withm the words of the
statute, but it is a cirQiunstance from
which the jury may infer the line of
conduct inside the house. lb.
The act of placing persons with
their faces against a wall, and desir-
ing them not to look round, with-
out the use of any actual violence,
is evidence of an intention to ob-
tain money by threats, and the bod-
ily fear may be inferred, although
the persons so treated may deny
that such acts created alarm or fear.
lb.
5. From the Person,
If a person with menaces demand-
ed a sum of money of another, and
that the other did not give it to
him because he had it not with him,
this was a felony within 7 <fe 8 Gea
4, c. "29, s. 6 ; but if the person de-
manding the money knew that the
money was not then in the posees-
sion of the party, and only intended
to obtain an order for the payment
of it, it was otherwise. Rex v. Ed-
wards, 6 C. A P. 515-^Patte8on.
To constitute a stealing from the
person, the thing must be compiete-
ly removed from the person ; remoT^
al from the place where it was, if it
remains throughout with the person,
is not sufficient. Rex v. Thomptm,
1 M. C. C. 78.
But such removal would besof-
ficient to constitute a simple lar-
cenv. lb.
A watch was carried in a wust-
coat pocket, with a chain attached
pasfflng through a button-hole of
the waistcoat, being there secnred
by a watch-key. ^e prisoner took
the watch out of the pocket and bjr
force drew the chain out of the but-
ton-hole, but the watch-key ha?iBf
been caught by a button of the
waistcoat, the watch and chain re-
mained suspended : — Held, a srf-
ficient severance to maintain a eon*
viction for stealingfrom the person.
Reg. V. Simpson, Dears. C. C. 421 ;
3 C. L. R. 80 ; 18 Jur. 1030 ; 24 L
J., M. C. 7 ; 6 Cox, C. C. 422.
On a trial for robbery and steal-
ing from the person, it was jHOved
that the prosecutor, who was para-
lysed, received, whilst sitting on a
sofa in his room, a violent blow on
the head from one of tiie prisoneit*
whilst the other went to a cupboard
IN MANUFACTORIES.
267
in the same room and stole there-
from a ca^-box : — Held, that it
was a question for the jury wheth-
er the cash-box was at the time un-
der the protection of the prosecutor.
If so, the charge of stealing from
the person would be sustained.
Beg. V. Sdway, 8 Cox, C. C. 235
—Chambers, C. S.
6. By Tenants or Lodgers,
By 24 & 25 Vict. c. 96, s.
74, " whosoever shall steal any chat-
" tel or fixture let to be used by
" him or her in or with any house
"or lodging, whether the contract
"shall have been entered into by
"him or her or by her husband, or by
" any person on behalf of him or
"her or her husband, shall be
" guilty of felony, and, being con-
"victed thereof, shall be liable, at
" the discretion of the court, to be
"he imprisoned for any term not
" exceeding two years, with or with-
" out hard labour, and with or with-
"out solitary confinement, and, if
**amale under the age of sixteen
" years, with or without whipping ;
" and in case the value of such chat-
" tel or fixture shall exceed the sum
"of five pounds, shall be liable, at
" the discretion of the court, to be
"kept in penal servitude for any
"term not exceeding seven years,
" and not less than live years (27
" A 28 Vict. c. 47), or to be im-
" prisoned for any term not exceed-
"ing two years, with or without
" hard labour, and with or without
" solitary confinement, and, if a
**male under the age of sixteen
" years, with or without whipping ;
" And in every case of stealing
" any chattel in this section men-
" tioned it shall be lawful to prefer
"an indictment in the common
" form as for larceny, and in every
"case of stealing any fixture in
"this section mentioned to prefer
"an indictment in the same form
"as if the offender were not a ten-
" ant or lodger, and in either case
" to lay the property in the owner
" or person letting to hire." {For-
mer provision y 7 & 8 Geo. 4, c. 29,
8. 45. By 7 & 8 Geo. 4, c. 27, 3
Will. & M. c. 9, was repealed.)
The prisoners were tenants and
occupiers ot a house in which were
certain gas-fittings belong to a pub-
lic company. It became necessary
that a gas-meter should be changed,
and the old one was taken down
and left in the custody of the prison-
ers till called for by the company's
servant. In the meantime they con-
verted it to their use : — Held, that
they could not be convicted of lar-
ceny. Iteg. V. MaUheson, 5 Cox,
C. C. 276— Gurney.
The case of Hex v. Palmer, 2
Leach, C. C. 680 ; 2 East, P. C.
586, decided that a tenant stealing
goods from a ready-furnished house
was not guilty of felony, within 8
Wm. & M. c. 9, 8, 5.
7. In Manufactories,
By 24 & 25 Vict. c. 96, s. 62,
whosoever shall steal, to the val-
ue of 10«., any woollen, linen,
hempen or cotton yam, or any
goods or article of silk, woollen,
linen, cotton, alpaca or mohair,
or of any one or more of those
materials mixed with each other,
or mixed with any other material,
whilst laid, placed or exposed, dur-
ing any stage, process or progress
of manufacture, in any building,
field or other place, shall be guilty
of felony, and being convicted
shall be liable, at the discretion
of the court, to be kept in penal
servitude for any term not exceed-
ing fourteen years, and not less than
five years (27 & 28 Vict. c. 47), or
be imprisoned for any term not
exceeding two years, with or with-
out hard labour, a^d with or with-
out solitary confinement." {For^
mer provision, 7 & 8 Geo. 4, c. 29,
s. 16.)
Where, on an indictment on 18
Geo. 2, c. 27, for stealing yarn out
of a bleaching-ground, it appeared
that the yam hsA been spr^ on
268
LARCENY AND RECEIVERS.
the ground, but at the time of the
theft was in heaps,^ in order to be
carried into the house : — Held, that
as there was no occasion to leave it
in that state, it was not within the
statute, which uses the words,
'' laid, placed or exposed, during
any stage, process or progress of
manufacture, in any building, field
or other place." Hex v. HugiU^ 2
Russ. C. & M. 245.
On an indictment on 18 Geo. 2,
c. 27, for stealing calico placed to
be print^, <&c., in a building made
use of by a calico printer, for print-
ing, drying, ifcc. : — ^Ileld, that m or-
der to support the capital charge,
it was necessary to have proved
that the building, from which the
calico was stolen, was made use of
either for printing or drying calico.
Rex V. Dixon, R. & R. C. C. 53 ; 1
East, P. C. 512.
By 17 Geo. 3, c. 56, s. 10, it
shall be lawful for any two justices,
upon complaint made to them up-'
on oath that there is cause to sus-
pect that purloined or embezzled
materials, used in certain manuflEic-
tures, are concealed in any dwelling-
house, outhouse, yard, garden or
other place or places, to issue a
search warrant for the search, in
the daytime, of eveiy such dwelling-
house, &Q. ; and if any such mate-
rials, suspected to be purloined or
embezzled, are found therein, to
cause the same, and the person in
whose house, outhouse, yard, gar-
den or other place they are found,
to be brought before two justices;
and if the person shall not give an ac-
count to their satisfaction of how he
came by the same, he shall be ad-
judged guilty of a misdemeanor:
— Held, that a warehouse occupied
for business purposes only, and not
within the cui*tilage of or connected
with any dwelling-house, was a
place within the section. Reg, v.
JEdmundsan, 2 El. & El. 77 ; 5 Jur.,
N. S. 1351 ; 28 L. J., M. C. 213 ; 8
Cox, C. 0. 212.
8. JProm Mineg.
By 24 & 25 Vict. c. 96, b. 88,
" whosoever shall steal, or sever
" with intent to steal, the ore of
'' any metal, or any lapis calamii)ft>
'^ris, manganese or mundick, or
" any wad, black cawke or black
" lead, or any coal or cannel coal,
" from any mine, bed, or vein there-
" of respectively, shall be guilty rf
" felony, and, being convicted there-
'' of, shall be liable, at the discretion
" of the court, to be imprisoned for
" any term not exceeding two years,
" with or without hard labour, and
" with or without solitary confine-
" ment." {Previous enactment, 7 &
8 Geo. 4, c. 29, s. 37.)
By 8. 39, " whosoever, being em-
^' ployed in or about any mine, shall
" take, remove or conceal any ore
'^ of any metal, or any lapis calami-
" naris, manganese, mundick oroth-
^' er mineral found or being in such
" mine, with intent to defraud any
" proprietor of or any adventurer in
" such mine, or any workman or
" miner employed therein, shall be
" guilty of felony." (2 & 3 Vict c
58, s. 10, Previotts enactment. Pun-
ishment as in last section,)
It is not larceny for miners em-
ployed to bring ore to the surface,
and paid by the owners accordmg
to the quantity produced, toremore
fix>m the heaps of other miners ore
produced by them, and add it to
their own, in order to increase their
wages, the ore still remaining m the
possession of the owners. Bex v.
WeU>, 1 M. C. C. 431.
An indictment alleging, that A.
B., C. D., and persons employed in
a mine, in the parish of &c., in the
county of Cornwall, did steal ore,
the property of the adventurers in
the said mine, then and there being
found, does not sufficiently shew
the ore to have been in the mine
when stolen. Reg, v. Trevenner, 2
M. & Rob. 476— CressweU.
Where a prisoner wns indicted in
one count for stealing from the
ABROAD OR ON THE fflGH SEAS.
269
mine of H. J. G. coal, the property
of H. J. G., and in the same count
for stealing from the mines of thirty
other proprietors coal, the property
of each of such other proprietors,
and it appeared that all the coal so
alleged to have been stolen, had
been raised at one shafit : — Held,
first, that the prosecutor could not
be called upon to elect on which
charge he would go to the jury.
%. V. Bleasdale, 2 C. & K. 765
-Erie.
Held, secondly, that although,
for the sake of convenience, in try-
ing the prisoner the judge might di-
rect the jury to confine their atten-
tion to one particular charge, yet
that the prosecut-or was entitled to
give evidence in support of all the
charges in the indictment. lb.
Held, thirdly, that proof of such
charges might be relied on, in order
to shew a felonious intent. 2b,
9. h Ships in Ports or on Naviga-
hle Rivers and Wharves,
h Paris or Canals,]— By 24 &
25 Vict. c. 96, s. 63, " whosoever
" shall steal any goods or merchan-
" disc in any vessel, barge, or boat
" of any description whatsoever in
" any haven, or in any port of entry
" or discharge, or uix)n any naviga-
" ble river, or canal, or in any creek
"or basin belonging to or com-
" municating with any such haven,
" port, river or canal, or shall steal
"any goods or merchandise from
"any dock, wharf, or quay adja-
" cent to any such haven, port, riv-
** er, canal, creek, or basin, shall be
" gnilty of felonj', and being con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
"kept in penal servitude for any
" term not exceeding fourteen years,
" and not less than five years (27
"A 28 Vict. c. 47), or to be im-
" prisoned for any term not exceed-
"mg two years, with or without
" hard labour, and with or without
"solitary confinement." (Former
provision, 7 & 8 Geo. 4, c. 29, s. 17.)
(See 2 4-3 Vict, c. 47, s, 30, for
stealing from wharfs within the
metropolis,)
The lugga^ of a passenger going
by a steamboat, was within the
words " goods or merchandise" in
7 & 8 Geo. 4, c. 29, s. 17. Pex v.
Wright, 7 C. & P. 159— Park and
Alderson.
An indictment for stealing goods
on a navigable river was not satis-
fied by evidence of a stealing on
one of its creeks. Hex v. Pike, 1
Leach, C. C. 317 ; 2 Ea#t, P. C.
647.
From Ships in IXstress,] — By s.
64, " whosoever shall plunder or
" steal any part of any ship or ves-
" sel which shall be in distress, or
" wrecked, stranded or cast on
" shore, or any goods, merchandise,
" or articles of any kind belonging
" to such ship or vessel, shall be
" guilty of felony ;
" And the offender may be in-
" dieted and tried either in the coun-
" ty or place in which the offence shall
" have been committed, or in any
" county or place next adjoining."
(Former provision, 7 Will. 4 <fe 1
Vict. c. 87, s. 8. Punishment as in
preceding section.)
10. Abroad or on the High Seas,
If a person is apprehended in a
borough for a larceny committed on
the high seas, he may be tried for
that larceny before the court of
quarter sessions of the borough.
Jieg. V. Peel, L, & C. 231 ; 9 Cox,
C. C. 220 ; 32 L. J., M. C. 65 ; 8
Jur., N. S. 1185 ; 11 W. R. 40 ; 7
L. T., N. S. 336.
Piratically stealing a ship's an-
chor and cable was a capital offence
by the marme laws, and triable un-
der 28 Hen. 8, c. 15 ; 39 Geo. 3, c.
37, not extending to this case.
Pex V. Curling, R, & R. C. C. 123.
If a larceny is committed out of
the kingdom, though within the
king's dominions (e, g, in Jersev),
bringing the things stolen into this
270
LARCENY AND RECEIVERS.
kingdom will not make it larceny
here. Hex v. Prawes, 1 M. C. C.
349 ; S, P., Heg. v. Madge, 9 C. &
P. 29.
1 1 . Stealing or destroying Written In^
struments,
ValuahU Securities.^ — ^By 24 &
25 Vict. c. 96, s. 27, " whosoever
" shall steal, or shall for any fraud-
" ulent purpose destroy, cancel, or
" obliterate the whole or any part*
" of any valuable security, other
" than a document of title to lands,
" shall be guilty of felony, of the
^' Fame nature and in the same de-
" gree, and punishable in the same
" manner as if he had stolen any
" chattel of like value with the
" share, interest, or deposit to which
" the security so stolen may relate,
" or with the money due on the se-
" curity so stolen, or secured there-
" by and remaining unsatisfied, or
" with the value of the goods or
" other valuable thing represented,
" mentioned or referred to in or by
" the security." (Former provision,
7 & 8 Geo. 4, c. 29, s. 5.)
An indictment under this section
for stealing a valuable security,
must particularise the kind of valu-
able security stolen ; and any mate-
rial variance between the descrip-
tion in the indictment and the evi-
dence, if not amended, will be fatal.
Heg. V. Lowrie, 1 L. R., C. C. 61 ;
36 L. J., M. C. 24 ; 15 W. R. 360 ;
15 L. T., N. S. 632.
Deeds relating to Real Property.']
—By 24 & 25 Vict. c. 96, s. 28,
" whosoever shall steal, or shall for
" any fraudulent purpose destroy,
" cancel, obliterate, or conceal the
" whole or any part of any docu-
'' ment of title to lands shall be
" guilty of felony, and being con-
" victed thereof shall be liable, at
the discretion of the court, to be
kept in penal servitude for the
term of five years (27 <fc 28 Vict,
c. 47), or to be imprisoned for
any term not exceeding two years,
«
ii
u
" with or without hard labour, and
" with or without solitary confine-
" ment ;
Form of Indictment.] — ^^ And in
' any indictment for any such of-
^ fence relating to any dociunent
' of title to lands, it shall be suffi-
^ cient to allege such dociuncnt to
' be or to contain evidence of the
* title or of part of the title of the
' person or of some one of the per-
* sons having an interest, whetbar
' vested or contingent, legal or
' equitable, in the real estate to
' which the same relates, aad to
^ mention such real estate or some
* part thereof." {Former provision^
7 & 8 Geo. 4, c. 29, s. 23.)
By s. 1, " the term ' document
' of title to lands' shall include
' any deed, map, paper, or pareh-
' ment, written or printed, or part-
' ly written or partly printed, be-
' ing or containmg 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."
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Wills or Godicils.] — By s. 29,
whosoever shall, eitner diuing Uie
life of the testator or after his
death, steal, or for any fraudulent
purpose destroy, cancel, obliterate,
or conceal, the whole or any part
of any will, codicil, or other testa-
mentary instrument, whether the
the same shall relate to real or per-
sonal estate, or to both, shall be
guilty of felony, and bein^ con-
victed thereof, shall be uable,
at the discretion of the court, to
be kept in penal servitude for life,
or for any term not less than ^^e
years, or to be imprisoned for any
term not exceeding two years,
with or without ham labour, and
with or without solitary confine-
ment ;
" And it shall not in any indict-
ment for such oifence be necessa-
ry to allege that such will, codi-
cil, or other instrument is ^
property of any person.** (Former
TREES, SHRUBS, ETC.
271
provisiim, 7 &iS Greo. 4, c. 29, 8. 23.)
Ifadeifendant concealed a will,
and the money which ought, by the
will, to have gone to A. & B., and
with that money paid the debts of
the husband of the next of kin, to
whom he was a creditor, this was a
fraudalent purpose, within 7 <& 8
Geo, 4, c. 29, s, 23. Jieg. v. Jtfbr-
m, 9 C. & P. 89--Alder8on.
On an indictment on 7 ife 8 Geo.
4, c. 29, s. 23, for stealing writings
relating to real estate, the jury
must be satisfied that the defendant
took them under such circumstan-
ces as would have amounted to lar-
c«iy, if the writings had been the
subject of larceny. Hex v. John^
7 C. 4S5 P. 324— Patteson.
Records or Legal Documents.^ —
By 6, 30, " wbosoever shall steal,
"or shall for any fi*audulcnt pur-
" pose take from its place of depos-
" it for the time being, or from any
" person having the lawful custody
"thereof, or shall unlawfully and
" maliciously cancel, obliterate, in-
" jure, or destroy the whole or any
" part of any record, writ, return,
"panel, process, interrogatory, de-
" portion, affidavit, rule, order or
"warrant of attorney, or of any
" original document whatsoever of
** or belonging to any court of rec-
"ord, or relating to any matter,
" civil or criminal, begun, depend-
"ing, or terminated in any such
" court, or of any bill, petition, an-
'* swer, interrogatory, deposition,
" affidavit, order, or decree, or of
" any original document whatsoev-
" er of or belonging to any court of
" equity, or relating to any cause or
" matter begun, depending, or ter-
" minated in any such court, or of
"any original document in any-
"wise relating to the, business of
"any office or employment under
" her Majesty, and being or remain-
"ingin any office appertaining to
" any court of justice, or in any of
" her Majesty's catties, palaces, or
" houses, or in any government or
" public office, shall be guilty of
" felony, and being convicted there-
" of shall be liable, at the discretion
" of the court, to be kept in penal
" servitude for five years (27 & 28
" Vict. c. 47), or to be imprisoned
" for any term not exceeding two
" years, with or without hard la-
" hour, and with or without solita-
" ry confinement ; and it shall not
" in any indictment for such offence
/' be necessary to allege that the
" article in respect of which the of-
" fence is committed is the property
" of any person." {Former provi-
sion, 7 & 8 Geo. 4, c. 29, s. 21.)
Before 7 & 8 Geo. 4, c. 29, steal-
ing rolls of parchment was a larce-
ny, although such rolls were the
record of a court of justice, unless
they concerned the realty. Hex v.
Walker, 1 M. C. C. 165 ; but it was
not so if they concerned the realty.
jRex V. Westbeer, 2 Str. 1133.
A commission to settle the bound-
aries of a manor is an instrument
concerning the realty, and not the
subject ot larceny at conimon law.
Bex V. Westbeer, 1 Leach, C. C. 13.
Parish Hegisters,'] — Indictment
under 1 1 Geo. 4 & 1 Will. 4, c. 66,
s. 20, for destroying, defacing and
injuring a register of baptisms, mar-
riages and burials. Objections: 1.
That there was neither a destroy-
ing, defacing nor injuring, because
the register, when produced, had
the torn piece pasted in, and was
as legible as before. 2. That the
indictment was bad for uncertainty,
for alleging three distinct and dif-
ferent offences. 3. For not con-
taining an express averment of a
scienter : — Held, indictment good
on all points. Reg. v. Bowen^ 1
Den. C. C. 22 ; 1 C. & K. 501.
12. Stealing or destroying Trees^
Shrubs, Vegetables and Fences,
In Parks, Pleasure Grounds, or
Orchards.]— By 24 & 25 Vict. c.
96, s. 32, " whosoever shall steal,
" or shall cut, break, root up, or
272
LARCENY AND ItECEIVERS.
U
ti
" otherwise destroy or damage with
" intent to steal, the whole or any
" part of any tree, sapling, or shrub,
" or any underwood, respectively
" growing in any park, pleasure
" ground, garden, orchard, or ave-
" nue, or in any ground adjoining
" or belonging to any dwelling-
house, shall (in case the value of
the article or articles stolen, or
" the amount of the injury done,
" shall exceed the sum of 1/,) be
" guilty of felony, and being con-
" victed thereof shall be liable to
" be punished as in the case of sim-
" pie larceny ;
" And whosoever shall steal, or
" shall cut, break, root up, or oth-
" erwise destroy or damage, with
" intent to steal, the whole or any
" part of any tree, saplmg, or shrub,
" or any underwood, respectively
*' growing elsewhei-e than in any of
" the situations in this section be-
" fore mentioned, shall (in case the
" value of the article or articles stol-
" en, or the amount of the injury
" done, shall exceed the sum of 51.)
" be guilty of felony, and being con-
" victed thereof shall be liable to be
" punished as in the case of simple
" larceny. " ( Similar to former pro-
vision, 7 & 8 Geo. 4, c. 29, s. 88.)
In 7 & 8 Geo. 4, c. 29, s. 38, the
words " adjoining any dwelling-
house" imported actual contact, and
therefore ground separated from a
house by a narrow walk and paling
with a gate in it, was not within
their meaning. Bex v. Hodges, M.
& M, 341— Park and Parke.
Whether ground is properly de-
scribed as a garden within that sec-
tion, is a question for the jury. lb.
The 24 & 25 Vict. c. 96, s. 32,
enacts, that whosever shall steal
or cut, destroy or damage with
intent to steal the whole or any
part of any tree, &., shall (m
case the value of the article or
articles stolen, or the amount of
the injury done, shall exceed the
sum of o/.) be guilty of felony. In
estimating the injury, the amount
of the injury done to two or more
trees may be added together, pro-
vided the trees are damaged at one
and the same time, or so nearij
at the same time, as to form ooe
continuous transaction. Reg. v.
Shepherd, 1 L. R., C. C. 1 18 ; 37
L. J., M. C. 45; 16 W. R. 373;
17 L. T., N. S. 482 ; 11 Cox, C. C.
119.
£llsewhere.'] — ^By s. 33, " whosoev-
" er shall steal, or shall cut, break,
" root up, or otherwise destroy or
*'' damage with intent to steal, the
" whole or any part of any tree, sap-
" ling, or shrub, or any underwood,
" wheresoever the same may be re-
" spectively growing, the stealing
" of such article or articles, or tlie
" injury done, being to the amonnt
" of Is. at the least, shall, on convic-
" tion thereof before a justice of the
" peace, forfeit and pay, over and
" above the value of the article or
" articles stolen, or the amount of
" the injury done, such sum of mofr
" ev not exceeding 5/. as to the jns-
" tice shall seem meet." (Similar
to 7 & 8 Geo. 4, c. 29, s. 39.)
A conviction under the 7 <fe 8
Geo. 4, c. 29, s. 39, for stealing an
ash tree, the property of M., order-
ed the offender " to forfeit and paj,
over and above the value of the
tree stolen, 5s., and for the value
of the tree 1«. ; and also to pay M
As. 6c?. for costs, to be paid on or
before March 19th, and, in default
of pajrment of the sums, to be im-
prisoned for one month, unless the
sums should be sooner paid." It was
then ordered, that the 5s. should be
paid to the overseer, and the 1«. to
the person aggrieved, and the 1/. 4i.
Qd. should be immediately paid to
R., the complainant. .The informa-
tion had beqn laid by R. before one
magistrate, who had granted a sum-
mons, and the case heard, and the
conviction made by another. On
an action for false imprisonment
being brought against the convicts
ing magistrate: — Held, that the
TREES, SHRUBS, ETC.
273
oonvictioD was not invalidated,
first, by reason of its not having
taken place upon the information of
the perBOD agOTeved. Secondly,
nor from its having taken place be-
fore a magistrate, who did not re-
ceive the original information.
Thirdly, nor by the mode of adjud-
icating as to the costs. Tarry v.
Newman^ 2 New. Sess. Cas. 449;
15 M. & W. 645 ; 15 L. J., M. C.
160.
Fences.l — By s. 34, " whosoever
" shall steal, or shall cut, break, or
"throw down with intent to steal,
" any part of any live or dead fence,
"or any wooden post, pale, wire, or
" rail set up or used as a fence, or
"any stile or gate, or any part
"thereof respectively, shall, on con-
eviction thereof before a justice of
"the peace, forfeit and pay, over
" and above the value of the arti-
"cle or articles so stolen, or the
"amount of the injury done, such
" sum of money not exceeding 5/.
" as to the justice shall seem meet."
[Farmer enactment^ 7 & 8 Geo. 4, c.
W, 8. 40.)
Sufpieious Po88es8ion,]"^3y s. 35,
" if' the whole or any part of any
" tree, sapling, or shrub, or any un-
" derwood, or any part of any live
"or dead fence, or any post, pale,
"wire, rail, stile, or gate, or any
" part thereof, being of the value
"of U. at the least, shall be found
" in the possession of any person, or
"on the premises of any person,
" with his knowledge, and such per-
" wn, heia^ taken or summoned be-
lore a justice of the peace, shall
"not satisfy the justice that he
"came lawfully by the Fame, he
"shall on conviction by the justice
** forfeit and pay, over and above
" the value of the article or articles
" so found, any sum not exceeding
"2/." (Former provision^ 7 & 8
Geo.4, c. 29,s. 41.)
VegetabU$.]—BY ^ ^^j " whoso-
" ever shall steal, or shall destroy
** or damage with intent to steal,
" any plant, root, fruit, or vegeta-
" ble production growing in any
" garden, orchard, pleasure ground,
" nursery ground, hothouse, green-
" house, or conservatory, shall, on
" conviction thereof before a jus-
" tice of the peace, at the discretion
'' of the justice, either be commit-
" ted to the common gaol or house of
" correction, there to be imprisoned
" only, or to be imprisoned and
" kept to hard labour, for any term
" not exceeding six months, or else
" shall forfeit and pay, over and
" above the value of the article or
" articles so stolen, or the amount
" of the injury done, such sum of
" money not exceeding 20/. as to
" the justice shall seem meet."
{Former enactment^ 7 & 8 Geo. 4, c.
29, s. 42.)
The words " plant" and " vege-
table production," in that statute,
did not apply to young fniit trees.
Rex V. Hodges, M. <fe M. 341—
Park and Parke.
Vegetables not growing in Gar-
dens.']— By p. 37, ** whosoever shall
" steal, or shall destroy or damage
" with intent to steal, any cultivat-
" ed root or plant used for the food of
" man or beast, or for medicine, or
" for distilling, or for dyeing, or for
" or in the course of any manufacture,
" and gi'owing in any land, open or
" inclosed, not being a garden, or-
" chard, pleasure ground, or nurse-
" ry ground, shall, on conviction
" thereof before a justice of the
" peace, at the discretion of the jus-
" tice, either be committed to the
" common gaol or house of correc-
'* tion, there to be imprisoned only,
" or to be imprisoned and kept to
" hard labour, for any term not ex-
" ceeding one month, or else shall
" forfeit and pay over and above
" the value of the article or articles
" so stolen, or the amount of the in-
" jury done, such simi of jnoney not
^' exceeding 20«. as to the justice
274
LARCEinr AND RECEIVERS.
" shall seem meet, and in default of
" payment thereof, together with
"the costs (if ordered), shall be
" committed for any teim not ex-
" oeeding one month, unless pay-
" ment be sooner made." {Former
provtsian, 7 <fc 8 Geo. 4-, c. 29, s. 48.)
Clover was a plant used ft)r the
food of beasts within this enactment.
Heg. V. Brumby^ 8 C. 4fe K. 315 —
Williams.
18. Attempts to commit Larceny,
If a person puts his hand into the
pocket of another, with intent to
steal what he can find there, and
the pocket is empty, he cannot be
convicted of an attempt to steal.
Reg. V. Collins; L. <fc C. 471 ; 9
Cox, C. C. 407 ; 10 Jur., N. S. 686 ;
33 L. J., M. C. 1 77 ; 12 W. R. 886 ;
10 L. T., N. S. 581.
C. was in the employ of a con-
tractor for the supply of meat to a
camp, and the course of business
was for the meat to be sent down
to the camp, there weighed out to
the different messes, and the sur-
plus, if any, returned to the con-
tractor. C, whilst employed upon
this duty by the contractor, during
the weighing out, substituted a
false weight lor the true one, his in-
tention being to carry away and
steal the difference between the
just surplus, for which he would
have to account to his master, and
the apparent surplus actually re-
maining after the first weighing.
Nothing remained upon his pai*t to
complete his scheme except to car-
ry away and dispose of the meat,
which he would have done had the
fraud not been detected : — Held,
properly convicted of attempting to
steal the meat. Reg. v. Cheeseman^
9 Cox, C. C. 100 ; L. <fc C. 140 ; 8
Jur., N. S. 143 ; 31 L. J., M. C. 89 ;
10 W. R. 255 ; 5 L. T., N. S. 717.
An indictment for an attempt to
commit larceny which charges the
prisoner with attempting to steal
" the goods and chattels of A.,"
without further specifying the goods
intended to be stolen, is sufficiently
certain. Reg. v. Johnson^ L.&C.
489 ; 10 Cox, C. C. 13 ; 34 L J.,
M. C. 24.
14. SuubjecUmaUer of Larceny.
Documents of Tide to Goods\-*
By 24 & 25 Vict. c. 96, ** relatiia
^' to larceny and other amilar ot
" fences, s. 1 , in the interpretalioQ
" of this act, the term * document of
" title to goods' shall include anj
"bill of lading, India warrant,
" dock warrant, wareliouse keep.
" er's certificate, warrant or order
" for the delivery or transfer of any
" goods or valuable thing, bought
" and sold note, or any other docn-
" ment used in the ordinary course
" of business as proof of the poeses-
" sion or control of goods, or author-
"ising or purporting to autJiOTve,
" either by indorsement or by deliv-
" ery, the possessor of such docn*
" ment to transfer or receive any
" goods thereby represented or
" therein mentioned or referred to.
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Document of Title to LaudM^^
The term ^ document of title to
lands' shall include any deed,
map, paper, or parchment, writ*
ten or printed, or partly written
and partly printed, being or con-
taining evidence of the title, or
any part of the title, to any real
estate, or to any interest in or
out of any real estate."
Property.']^^'^ This term shall in-
clude every description of real and
personal property, money, debts,
and legacies, and all deeds and in-
struments relating to or evidenc-
ing the title or right to any prop-
erty, or giving a right to recover
or receive any money or goods,
and shall also include, not only
such property as shall have been
originally in the possession or on-
der the control of any party, but
also any property into for which
the same may have been convert-
ed or exchanged, and anything
SUBJECT-MATTER OF LARCENY.
275
"acquired by such conversion or
"exchange, whether immediately
" or otherwise."
Mortgage deeds, being substitut-
ed securities for the payment of
money, are choses of action, and
not goods and chattels. Whei*e,
therefore, a prisoner was indicted
for a burglary, in breaking into a
house at night, with intent to steal
the goods and chattels therein, and
tiie jury found that he broke into
the house with intent to steal mort-
gage deeds only, the conviction was
Quashed. Reg, v. Powell^ 2 Den.
I. C. 403; 5 Cox, C. C. 396; 16
Jur.I77;2lL. J., M. C. 78.
VduaUe Securities,'] — " The term
" * yalnable security ' shall include
"any order, exchequer acquittance,
" or other secul'ity whatsoever, en-
" titling or evidencing the title of
"any person or body corporate to
" any share or interest in any pub-
" lie stock or fund, whether of the
"United Kingdom, or of Great
"Britain or of Ireland, or of any
"foreign state, or in any fund of
"anybody corporate, company, or
" society, whether within the United
" Edngdom or in any foreign state or
" country, or to any deposit in^ny
" hank, and shall also include any
"debenture, deed, bond, bill, note,
" warrant, order, or other security
" whatsoever for money or for pay-
"ment of money, whether of the
"United Kingdom, or of Great
" Britain, or of Ireland, or of any
" foreign state, and any document
"of title to lands or goods as here-
"inbefore defined." {Former pro-
nnm, 7 & 8 Geo. 4, c. 29, s. 5.)
A mortgage deed, and title deeds
•ccompan}dng it, constituted a se-
<^ty for money within the latter
statute. Heg.Y, Williams, 6 Cox,
C. C. 49-Platt.
An indictment charging in one
count the larceny of "three deeds
^ing a security for money, to wit,
for 2U/., of and belonging to H.
W." : and in another count the lar-
ceny of " three deeds, being a secur-
ity for the payment of money, to
wit, for 20/., of and belonging to H.
W.", is supported by proof of the
larceny of deeds of lease and release
from A. to 6. of real estate, and of
a mortgage by demise of the Fame
property from B. to C, and held by
the prosecutor as executor of C.
lb.
A prisoner was convicted on an
indictment under 24 & 25 Vict. c.
96, s. 27, for stealing a valuable se-
curity, to wit, an agreement be-
tween L. and C, whereby C. was en-
titled to receive payment of certain
sums of money, and which sums
were then due and unsatisfied to C.
The sums were not due till some
time after the stealing : — ^Held, that
since this section limits the terms
valuable security to securities other
than a document of title to lands, it
is material in an indictment under
this section to describe the valuable
security, so as to shew that it is
within the section that the descrip-
tion given ought to have been prov-
ed, and that, since it had not been
proved, the conviction could not be
supported. Beg, v. Lowrie^ 36 L.
J.,M. C. 24; 1 L. R., C. C. 61.
An agreement, although unstamp-
ed, is a chose in action, and there-
fore not the subject of larceny.
Reg. V. Watts, Dears. C. C. 326 ; 2
C. L.R. 604; 18 Jur, 192; 23 L.
J., M. C. 56 ; 6 Cox, C. C. 304.
But by 17 & 18 Vict. c. 83, a
27, " every instrument liable to
'^ stamp duty shall be admitted in
" evidence in any criminal proceed-
" ing, although it may not have the
" stamp required by law impressed
" thereon or afiixed thereto."
Value.] — Though, to make a thing
the subject of an indictment for a
larceny, it must be of some value,
and stated to be so in the indict-
ment, yet it need not be of the value
of some coin known to the law,
276
LARCENY AND RECEIVERS.
that is to say, of a farthing at the
least. Reg. v. Morris^ 9 C. & P.
349— Parke.
BiUs^ Notes^ Cheques and other
Securities, ] — Stealing re-issuable
notes after they have been paid,
and before they have been re-issued,
did not subject the party to an in-
dictment on 2 Geo. 2, c. 2o, for
stealing notes; but he might be in-
dicted for stealing paper with valu-
able stamps upon it. Rex v. darky
R. & R. C. C. 181 ; 2 Leach, C. C.
1036.
To obtain from a person his note
of hand by threatening with a knife
held to his throat to take away his
life, was not a felonious stealing of
the note within 2 Geo. 2, c. 25, s. 3,
for it never was of value to, or in
the peaceable possession of, such per-
son. Rex V. Phipoe^ 2 Leach, C.
C. 673 ; 2 East, P. C. 599.
Country bankers' notes, which
had been paid by the bankers in
London, at whose liouse they were
made payable, and by them sent
down to the country bankers to be
re-ifsued, en the way there were
stolen, and the prisoner was indicted
for receiving them. The indictment
in some counts charged the notes to
be valuable securities, and in others,
as pieces of paper of the goods and
chattels of the country bankers.
The prisoner was convicted, and the
conviction held right. Some of the
judges doubted whether these notes
were to be considered as valuable se-
curities, but, if not, they all thought
they were goods and chattels. Kex
V. Vyse, 1 M. C. C. 218.
Exchequer bills, although signed
by a person not authorized to do so,
were securities and effects within
15 Geo. 2, c. 13, s. 12, Rex v. As-
hit, 1 N. R. 1 ; 2 Leach, C, C. 958 ;
R. & R. C. C. 67.
The halves of country bank-notes,
sent in a letter, are goods and chat-
tels, and a person who steals them
is indictable for larceny. Rex v.
Meady 4 C. <fe P. 535 — ^kosanquet.
A., in consequence of seeing as
advertisement applied to B. to raise
monev for him, JB. said he would
procure him 5,000^., and produced
from his pocket-book ten blank 6t.
bill stamps, across each of whidb
A. wrote, " Accepted, payable at
Messrs. P. & Co., 189, F. Street,
London," and signed his name. B.,
who was present, took up the stamps,
and nothms was said as to what
was to be oone with them. After-
wards bills of exchange for 5001
each were drawn on these stamps,
and B. put them into circulation :—
Held, that these stanips, with the
acceptances thus written upon them,
were neither bills of exchange, or-
ders for the payment of money, nor
securities for money. Rex v. /fart,
6 C. & P. 106— Littledale, Bolland
and Bosanquet.
Held, also, that a charge of lar-
ceny against B. for stealing the
stamps, and for stealing the paper
on which the stamps were, would
not be sustained, as this was no lar-
ceny, lb.
A. charged in one count ^ith
stealing a cheque for 13^ 9«. 7rf.,
and in another count with stealing a
piece of paper value Id: — Held,
tha4 supposing the cheque to have
been a void cheque (as being con-
trary to 55 Geo. 3, c. 184), it woald
still sustain the chaise laid in the
second count. Reg. v. Pern/^ 1
Den. C. C. 69 ; 1 C. & K. 725.
A person might be convicted, un-
der 7 & 8 Geo. 4, c. 29, s, 5, if he
stole scrip certificates of a foreign
railway company, as the statute
extended to valuable securities for
the shares in the funds of a foreign as
well as of a British company. Reg*
V. Smithy Dears. C. C. 561 ; 7 Cox,
C. C. 93 ; 1 Jur., N. S. 1212 ; 25
L. J.,M. C. 31.
A. was indicted for stealing 951
in money. The evidence was, that
he stole certain notes of a country
bank which were not then in circu-
lation, for value, but which had
been paid in at one branch of the
LETTERS, ETC.
277
same bank, and were in course of
tranfanisaon to another branch,
where they had been originally is-
sued, in order that they mi^ht be
there re-issued or otherwise disposed
of:— Held, that A. was guilty of
larceny; and that, since 14 <fe 15
Yictc. 106, 8. 18, the offence was
correctly described in the indict-
ment Heg. V. West^ 7 Cox, C. C.
183; Dears. & B. C. C. 109.
A servant a day or two before
her mistress's death got cashed a
cheque drawn to her mistresses or-
der, and which had come to her
mistress's house in a letter, and
when cashed purported to bear her
mistress's indorsement; and after
cashing it she applied the greater
part of it to a purpose which prob-
ably was directed by her mistress,
hat had retained a small surplus,
and when taxed with it, just after
her mistress's death, she denied the
receipt of the cheque, the indorse-
ment on which was believed not to
be that of her mistress. The jury
was directed that there was no evi-
dence on whicb they could properly
convict her for stealing the cheque,
even if there was any on which
they could have convicted for em-
besEzling the surplus. Heg. v. SHngs-
*y, 4 F. & F. 61— Pollock..
Stealing a pawnbroker's dupli-
cate is larceny. Reg, v. Morrison^
Bell, C. C. 158 ; 28 L. J., M. C.
210; 7 W. R. 554; 83 L. T. 220;
8Cox,C.C. 194.
Ga».] — ^The prisoner had con-
tracted with a gas company for a
supply of gas. The quantity con-
nmied was to be measured by a
meter rented by the prisoner of the
company, and was to be paid for
Mcording to such measurement.
The gas was conveyed from the
company's main through an en-
trance pipe (the property of» the
prisoner) to the meter, and from
thence, by another pipe, called the
exit pipe, to the burners. The pris-
oner, by inserting a connecting pipe
into the entrance and exit ppes,
diverted the gas from the meter,
and thereby avoided paying for the
full quantity of gas consumed : —
Held, that this was larceny of the
gas; that there was a sufficient
severance of the gas, at the point of
junction of the connecting pipe with
the entrance pipe, to constitute an
asportation ; that the propertv and
possession of the gas were m the
company ; and that it was immater-
ial whether the service pipe was the
property of the prisoner or the com-
pany. Reg, V. White^ 8 C & K.
863 ; Dears. C. C. 203 ; 6 Cox, C.
C. 213 ; 17 Jur. 536 ; 22 L. J., M.
C. 123.
15. Letters and Government Docu-
ments.
If A. asks B., who is not his serv-
ant, to put a letter in the post, tell-
ing him it contains money, and B.
breaks the seal, and abstracts the
money before he puts the letter in
the post, he is guilty of larceny.
Rex V. Jones, 7 C. & F. 151.
But if a person, from idle curios-
ity, either personal or political,
opens a letter addressed to another
person, and keeps the letter, this is
no larceny, even though a part of
his object may be to prevent the
letter from reaching its destination.
Reg, V. Godfrey, 8 C. & P. 563—
Abinger.
A servant of B. applied for at the
post-office and received all the let-
ters addressed to B. She delivered
them all to B., except one, which
she burned. Her motive for de-
stroying it was the hope of suppress-
ing inouiries respecting her charac-
ter:— Held, a larceny, and that,
supposing lucri caus& to be a neces-
sary ingredient therein (which the
court did not admit), there was a
sufficient lucrum proved. Reg, v.
Jones, I Den. C. C. 188; 2 C & K.
236,
Where a letter enclosing a cheque
was directed to James Mucklo\^,
St. Martin's Lane, Birmingham, and
278
LARCENY AND RECEIVERS.
no person of that name lived there,
but the prisonei* lived about ten
yards from St. Martin's Lane, and
another James Mucklow lived in
New Hall Street ; and the prisoner,
in consequence of a message left by
the postman, got the Jetter from
the post-office, and appropriated the
cheque to his own use : — Held, that
it was not a felonious taking. iSea;
V. Mucklow, Car. C. L. 280 ; 1 M.
C. C. 160.
A letter, containing a post^ffice
order, directed to John Davies, was
misdelivered to John Davis, one of
the prisoners. Not being able to read ,
he took it to W. D., the other pris-
oner, who read it to him. He then
said the letter and order were not
for him, but was advised by W. D.
to keep them and get the money.
Both prisoners then went to the
post-oflice, obtamed the money, and
appropriated it to their own use : —
Held, that a conviction for larceny
of the order could not be supported.
Heg. V. Davis, 2 Jur., N. S. 478 ;
25 L. J., M. C. 91 ; Dears. C. C.
640.
A person who had surreptitiously
taken a printed document from a
government office, and sent it to a
newspaper office to be published,
being indicted for larceny: — Held,
that the question for the jury was
whether he had the object and in-
tention of depriving the government
permanently of the property in the
paper. Reg, v. Guernsey, 1 F. &
P. 394— Martin.
16. Fixtures,
By 24 & 25 Vict, c. 96, s. 81,
" whosoever shall steal, or shall rip,
" cut, sever or break with intent to
" steal, any glass or wood work be-
" longing to any building whatso-
"ever, or any lead, iron, copper,
" brass or other metal, or any utensil
" or fixture, whether made of metal
" or other material or of both, re-
" spectively fixed in or to any build-
" ing whatsoever, or anything made
^^ of metal fixed in any land being
u
u
" private property, or for a fence to
'^any dwelling-house, garden or
" area, or in any square or sU«et^
" or in any place dedicated to public
'^ use or ornament, or in any banal
ground, shall be guilty of felony,
and, being convicted thereof, sbaiJ
'^ be liable to be punished as m ti»
^' case of simple larceny ; and in the
'^ case of any such thing fixed in
" any such rquare, street or place as
^' aforesaid, it shall not be neoeGsaiy
'^ to allege the same to be the prop-
" erty of any person." (Former pro-
vision, 7 <fc 8 Geo. 4, c. 29, s. 44.)
By 7 A 8 Geo. 4, c. 27, 4 Geo.2,
c. 32, and 21 Geo. 3, c. 68, were fe>
pealed.
The prisoners were convicted up-
on an indictment which chained
them with stealing lead fixed to a
certain wharf. It was proved that
tlie lead stolen formed the gutten
of two brick, timber and tile boiH
sheds erected upon the prosecutor's
wharf: — Held, that the conviction
was good, the lead being fixed to
a building within 7 <fc 8 Geo. 4, c
29, s. 44. Her/, v. Bice, Bell, C. C.
87 ; 5 Jur., N. S. 273 ; 28 L, J., M.
C. 64 ; 7 W. R. 232 ; 32 L. T. 823;
8 Cox, C. C. 119.
The prisoners were convicted up-
on an indictment framed under 7
& 8 Geo. 4, c. 29, s. 44, of stealing
metal fixed in land. It was proved
that they had stolen a copper sun-
dial fixed upon a wooden post in a
churchyard : — ^Held, that the oonvic-
tion was right, Heg, v. Jones^ Dears.
& B. C. C. 555 ; 4 Jur., N. S. 394;
27 L. J., M. C, 171.
A person, on a count (in the usu-
al form) for stealing lead afiixed to
a building, cannot be convicted of
larceny ; and in order to warrant a
conviction on such count, the jmy
must be satisfied that he untixea
the lead from the building, or was
present aiding and assisting. Esg*
V. Gooch, 8 C & P. 293— 'findal.
An unfinished building, intended
as a cart-shed, which is boarded up
on all its sides, and has a door wiA a
CATTLE AND OTHER ANIMALS.
279
lock to it, and the frame of a roof
with loofio gorse thrown upon it, be-
cause it is not yet thatched, is a
hoildiog within 7 & 8 Geo. 4, c. 29,
s. 44. Rex V. WorraU, 7 C. & P. 516
— Littledale.
Leaden images, on pedestals, fix-
ed in the ground near a summer-
house, the summer-house being in
tn inclosed field (but not within the
nme inclosure as the house), were
not within 4 Geo. 2, c.«B2. Mex v.
jBicAfln/«, R. & R. C. C. 28.
A larceny may be committed of
window sashes which are neither
hong nor beaded into the frames,
bat merely fastened by laths nailed
across the frames to prevent their
taking out ; as they are not fixed
to the freehold. Bex v. Hedges^ 1
Leach, C. C. 201.; 2 East, P. C.
590, n.
A diarch was a building within
4 Geo. 2, c. 32. Rex v. Hickman^
1 Leach, C. C. 318 ; 2 East, P. C.
593 ; S. P., Rex v. Parker, 2 East,
P. C. 592 ; 1 Leach, C. C. 320, n.
Stealing iron rails from a tomb
in a churchyard, not connected by
any bailding to the church, was not
within 4 Geo. 2, c. 32, and 21 Geo.
8, c. 68. Rex v. Davis, 2 East, P.
C.593; 1 Leach, C. C. 496, n.
Semble, that the stealing of brass
fixed to tomb-stones in a church-
yard was a felony under 7 <fc 8 Geo,
4, c, 29, 8, 44. Rex v. Mick, 4 C.
i P. 377 — Bosanquet.
Bat a copper sun-dial, fixed on
the top of a wooden post standing
in a chorchyard, was metal fixed in
1^ in a place dedicated to public
we, and the subject of larceny with-
in 7 & 8 Geo. 4, c. 29, s. 44. Reg.
V. Jones, 7 Cox, C. C. 498— C. C. R.
A person who procured possession
of a house, under a written agree-
ment between him and the land-
lord, for a lease of twenty-one years,
vitii a fraudulent intention to steal
the fixtures thereto belonging, was,
by stealing the lead afiixed to the
««8e, guSty of larceny on 4 Geo.
2, c. 32. Rex v. Mundat/, 2 Leach,
C. C. 850 ; 2 East, P. C. 594.
An indictment for stealing a cop-
per pipe fixed to the dwelling-house
of A. and B., is not supported by
proof of stealing a pipe fixed to two
rooms of wjiich A. and B. are sep-
arate tenants in the same house.
Rex V. Finch, 1 M. C. C. 418.
In support of an indictment for
stealing lead 'fixed to a dwelling-
house, proof that the prosecutor re-
ceived the rent is snfiicient prim&
facie evidence of his ownership.
Reg, V. Brummitt, L. <fc C. 9 ; 8
Cox, C. C. 413; 9 W. R. 357 ; 3
L. T., N. S. 679.
Where a yearly tenant of a house
had at his own expense, during his
term, hung bells, but quitted the
premises, without removing them :
— Held, that by remaining fixed to
the freehold after the expimtion of
the term, they became the property
of the landlord, and that the tenant
could.not maintain trover for them
after the landlord had severed them
from the freehold. Lyde v. Russell,
1 B. & Ad, 394.
17. Cattle and other Animals.
(a) Statute.
By 24 & 25 Vict. c. 96, s. 10,
"whosoever shall steal any horse,
" mare, gelding, colt or filly, or any
" bull, cow, ox, heifer or calf, or any
*' ram, ewe, sheep or lamb, shall be
" guilty of felony, and, being con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
"kept in penal servitude for any
" term not exceeding fourteen years,
" and not less than ^\e years (27 &
" 28 Vict. c. 47), or to be imprison-
" ed for any term not exceeding
" two years, with or without hard
" labour, and with or without sol-
" itary confinement." Previous pro-
vision, 7 & 8 Geo. 4, c. 29, s. 25.)
(b) jFforse^Stealing.
What is.] — ^If a horse is purchas-
280
LARCENY AND RECEIVERS.
ed by and delivered to the buyer, it
is not felony though he immediately
rides away with it without paying
the purchase-money. Hex v. Bar-
vet/, 1 Leach, C. C. 467 ; 2 East, P.
C. 669.
But obtaining a horse under the
pretext of hiring it for a day, and
immediately selling it, is felony, if
the jury finds the hiring was animo
fnrandi. Hex v. Pear^ 1 Leach, C.
C. 212; 2 East, P. C. 685, 697.
And see Hex v. Tunnard, 2 East, P.
C. 687 ; 1 Leach, C. C. 214, n.
If a thief goes to an inn, and, in-
tending to steal a horse, directs the
ostler to bring out his horse, point-
ing to that of the prosecutor, and
the ostler, at his desire, leads out
the horse for the prisoner to mount :
this is a sufficient taking by the pris-
oner to support an indictment for
horse-stealing. Hex v. Pitman^ 2
C. & P. 423— Garrow.
Where the prisoners having en-
tered a stable at night, and taking
out horses, rode tnem thirty-two
miles, and then left them at an inn,
and were afterwards found pursu-
ing their journey on foot ; and the
jury found that they took the horses
merely with intent to ride and
afterwards to leave them and not to
return or make any further use of
them : — Held, that this was a tres-
pass and not a larceny. H^a v.
PhiUips, 2 East, P. C. 662.
A prisoner received the prosecut-
or's horse to be agisted, and after a
short time sold it : — Held not larce-
ny. Hex v. Smith, 1 M. C. C. 473.
A., who intended to sell his mare,
sent his servant to M. fair, his serv-
ant having no authority either to sell
the mare, or deal with her in any way.
The prisoner asked the servant the
price, and deured the servant to trot
•her out ; and the prisoner then went
to two men, and, having talked to
them walked away. These two
men then came up and persuaded
the servant to exchange the mare
for a horse they had, and they
would give 24^. for the chop. They |
changed the saddles, and, without
giving any money, rode away with
the mare, leaving the servant with
a horse of little value. Four days
after the prisoner sold the mare at
B., stating that he had got her m a
chop at M. fair : — ^Held, that, as the
servant had the mere charge of the
mare, and had no right to deal wiik
the property in her, the prisoner
ought to be convicted of stealing
her, providing that the jury was
satisfied that the prisoner was ia
league with the two other men, and
that the three, by a fraud in which
each of them was to take his part
and did take his part, induced the
servant to part with possession of
the mare under colour of exchange,
but they intended all the while to
steal the mare. .Heg, v. Skeppard,
9 C. ife P. 121— Coleridge.
If a person stealing other property
takes a horse, not with the mtentto
steal it, but only to get off more
conveniently with the other prop-
erty which he has stolen, such tak-
ing of the horse is not a felonv.
Hex V. Crump, 1 C. & P. 658—
Garrow.
•
Indictment,^ — In an indictment for
horse-stealing, the animal, whether
a horse, mare, gelding, colt or filly,
may be described as a horse. iJ«y.
V. Aldridge, 4 Cox, C. C. 143--
Erie.
Foals and fillies were within 2 &
3 Edw. 6, c. 33, and were included
in the words horse, gelding or mare,
and evidence of stealing a mare fil-
ly supported an indictment for steal-
ing a mare. Hex v. Wdland, R. i
R. C. C. 494.
By 7 & 8 Geo. 4, c. 29, 8. 25, if
any person shall steal any horse,
mare, &c., or shall wilfully kill any
of such cattle with intent to steal the
carcase, every such oftender shall
be guilty of felony, and on conrio-
tion suffer death. The 2 A 8 Will
4, c. 62, s. 1, reduced the punidi-
ment to transportation for life ; and
7 Will. 4 & 1 Vict. c. 90, s. 1, to
SHEEP STEALING.
281
traa^rtation for not less than fif-
teen years. An indictment charg-
ed a person with feloniously stealing
a mare, saddle and bridle, and did
Dot conclude contra formam statuti.
A verdict of guilty was found : —
Held, that, as steabng the mare, as
well as stealing the saddle and bri-
die, was a felony at common law,
and not created or altered in its na-
ture by f^tnte, the offence was cor-
rectly described in the indictment,
and the statutable punishment of
fifteen years' transportation would
attach to the stealing the mare.
W^am V. Beg. (in error), 7 Q. B.
251.
Bndence.] — Two, indicted for
borse-stealing in county A., were
found in joint possession of two
horses in that county, which they
had jomtly taken at different times
and places in county B. : — Held,
that evidence could be given of one
only of the takings in county B.,
each taking being a separate felony.
Bex V. Smith, R. & M. 295— Little-
dale.
Indictment for stealing two horses
in Kent ; the only evidence of steal-
ing in Kent was that the constable
having taken the prisoner in Surrey,
and the prisoner having offered on
some pretence to go to a place in
Kent, the constable and the prisoner
rode the horses there, and the pris-
oner escaped, leaving the horses
with the constable :— -Held, not suf-
ficient. Hex V. Simmonds, 1 M. C.
C. 408.
A. had agisted his horse with B.,
*nd in consequence of hearing of
the loss of it, A. went to the field
of B., where it was not : — Held, to
be not sufficient proof of loss to sup-
port an indictment for horse-steal-
ing. Hex V. Tend, 6 C. & P. 176—
Gnmey.
(c) Gattle.
An indictment for stealing a cow
cannot be supported by evidence of
stealing a heifer. Hex v. Chok, 1
Pish. Dig.— 21.
Leach, C. C. 105 ; 2 East, P. C. 616.
The beast, however old, is a heif-
er until she has had -& calf lb.
The phrase bullock-stealing, in 7
Geo. 4, c, 64, s. 28, relating to the
allowance of rewards in certain
cases for the discovery of offenders,
includes all cases of cattle-stealing
of that particular description, e. g.
ox, cow, heifer, &c. Hex v. GtU-
hrass, 7 C. & P. 445.
(d) Sheep- SteaUng.
An indictment for stealing a
sheep is sup|X)rted by proof of steal-
ing a ewe or a ram, though the
statute specifies "ram, ewe, sheep
or lamb.*' Reg, v. M' OuUey, 2 M.
C. C. 34 ; 2 Lewin, C. C. 272.
A sheep was called in the indict-
ment a ewe, and, by the witnesses,
the proper name was said to be a
ewe teg : — Held, that the description
was bad. Reg, v. Jewett, 2 Cox, C.
C. 227— Pollock.
On the trial of an indictment un-
der 7 & 8 Geo. 4, c. 29, s. 25, for
stealing " one sheep," some of the
witnesses stated the animal to be a
sheep, others a lamb. It was be-
tween nine and twelve months old ;
and the jury who convicted the
prisoner found, that, in common
parlance, according to the usual
mode of describing such animals, it
would be called a lamb. Convic-
tion held right, the word " sheep "
being general. Reg. v. Spicer, 1 C.
& K. 699 ; 1 Den. C. C. 82.
On an indictment for sheep-steal-
ing, a rig sheep is properly described
as " dne sheep." Rex v. Stroud, 6
C. & P. 535 — Alderson.
A prisoner was indicted for sheep-
stealins. The prosecutor lost a
sheep m September; it was found
in the prisoner's possession in the
March following. There was no
other evidence of larceny than the
Eossession : — Held, that the period
etween the loss and the nndlng
was too long to permit the case to
go to the jury. Reg, v. Harris^ 8
Cox, C. C. 883.
282
LARCENY AND RECEIVERS.
Where a prisoner was found in
the recent possession of some stolen
sheep, of which he could give no
satisfactory account, and it might
reasonably be inferred from the cir-
cumstances that he did not steal
them himself: — ^Held, that there
was evidence for the jury that he
received them knowing them to
have been stolen, Heg, v. Lang-
mead, L. & C. 427 ; 9 Cox, C. C.
464; 10 L. T., N. S. 850.
A. being tried for sheep-stealing,
it was proposed to call the wife of
B. to prove that A. and B. had
jointly stolen the sheep, B. having
been convicted of it at the previous
quarter sessions: — Held, that she
was a competent witness. Reg, v.
WtUiams, 8 C. & P. 284— Alderson.
If a man kills a sheep in county
A., and carries the carcase into
county B., he may be convicted up-
on an indictment for stealing, tak-
ing and driving away sheep into
county B. If a man kills a sheep
in county A., and carries the carcase
into county B., he cannot be con-
victed of killing the sheep with in-
tent to kill the carcase in county B.
Reg. V. Neidand, 2 Cox, C. C. 283.
(e) Deer,
Stealing Deer in unindosed For-
4««a.]— By 24 & 25 Vict. c. 96, s.
12, " whosoever shall unlawfully
'^and wilfully course, hunt, snare
"•or carry away, or kill or wound,
" or Attempt to kill or wound, any
deer kept or being in the unin-
closcd part of any forest, chase
" or purlieu, shall for every such
" offence, on conviction thereof be-
" fore a justice of the peace, forfeit
'^ and pay such sum, not exceeding
^' 50/., as to the justice shall seem
** meet; and whosoever having been
** previously convicted of any otfence
" relating to deer, for which a pecu-
'* niary penalty shall have been im-
" posed by this or "by any former
*^act of Parliament, shall after-
^ wards commit any of the offences
'^ hereinbefore enumerated, whether
u
u
"such second offence be of the
" same description as the fin^ or
" not, shall be guilty of felony, and
" being convicted thereof shall be
"liable, at the discretion of the
"court, to be imprisoned for any
"term not exceeding two years,
" with or without ham labour, and
"with or without solitary confine-
" ment, and, if a male under the
"age of sixteen years, with or
" without whipping." {Former firo-
viaiony 7 <fe 8 Geo. 4, c. 29, s. 26.)
In indosed Grounds,] — ^By Sw 13,
" whosoever shall unlawfully and
"wilfully course, hunt, snare or
" carry away, or kill or wound, or
" attempt to kill or wound, any
" deer kept or being in the inclosed
" part of any forest, chase or pur-
" lieu, or in any inclosed land wnere
" deer shall be usually kept, shall
"be guilty of felony, and, bemg
" convicted thereof, shall be liable,
" at the discretion of the court, to
" be imprisoned for any term not
" exceeding two years, with or
" without hard labour, and with or
" without solitary confinement, and
" if a male under the age of axtecn
" yeare, with or without whipping."
{jphrmer provision, 7 <fc 8 Geo. 4,
c. 29, 6. 26.)
UrUatofid Possession of Veni-
son,]— ^" As to what is a 6us{»ciotts
" posse-ssion of venison," see s. 14.
Setting Engines for Taking or
ITiUingJl — By s. 15, " whosoerer
" shall unlawifuUy and wilfully set
" or use any snare or engine what-
" soever, for the purpose of taking
" or killing deer, m any part of any
"forest, chase or purUeu, whether
" such part be inclosed or not, or in
" any fence or bank dividing the
" same from any land adjoining, or
" in any inclosed land where deer
" shall be usually kept, or shall un-
" lawfully and wilfimy destroy any
"part of the fence of any land
"where any deer shall be then
DEER.
288
*' kept, sball, on conviction thereof
"before a justice of the peace, for-
"feitaad pay such sum of money,
" not exceeding 20/., as to the just-
"ice shall seem meet." (I^ormer
prtwisian, 7 & 8 Creo. 4, c. 29, s.
28.)
The 7 & 8 Geo. 4, c. 27, repealed
21 Edw. 1, Stat. 2; 16 Geo. 3, c.
80; 42 Geo. 3, c. 107; 51 Geo.
8, c. 120; and so much of the
Carta de Foresta, and of 3 Edw.
1, c. 20; 1 Edw. 3, stat.l, as re-
lated to this subject ; and 24 &
25 Vict c. 95, repeals 7 & 8 Geo.
4, c. 29.
What 18 Deer.] — The term deer
includes all kinds of deer, all ages
and both sexes. Heg. v. Strange,
1 Cox, C. C. 58— Maule.
Indosures,] — An inclosnre in the
Forest of Dean, made under a stat-
ute, for the protection of timber,
and surrounded by a ditch and a
bonk, which were sufficient to pre-
vent cattle from getting into it, but
OTcr which the deer could pass in
or oat at their free will, was an in-
closed part of a forest, within 7 &
8 Geo. 4, c. 29, s. 26. Beg. v.
Money, 2 Rusfi. C. & M. 371— Erie,
The words " wherein deer shall
be usually kept " refer to inclosed
land only. lb.
Cmviction8,'\-~On an indictment
under 7 & 8 Geo. 4, c. 29, s. 26,
for killing a deer after a previous
sommary conviction, a conviction
by two justices of the previous of-
fence was put in : — ^Held, that such
a conviction was good. Hex v.
Weak, 5 C. & P. 135— Park.
Upon an indictment for a second
offence against 42 Geo. 3, c. 107,
by killing deer, objections might
have been taken to the conviction
for the first offence, that it was not
in the proper county, and that it
was not correctly stated in the in-
dictment for the second offence.
liex V. Allen, R. A R. C. C. 513.
A commitment under 7 <fc 8 Geo.
4, c. 29, 6. 26, reciting a conviction
that the defendant '' did unlawfully
kill and carry away one fallow
deer, the property of her Majesty
Queen Victoria, against the form
of the statute," was bad for omit-
ting to state that the deer was in
the uninclosed part of some forest,
chase or purlieu. JReg, v. King, 1
D. & L. 721 ; 8 Jur. 271 ; 13 L. J.,
M. C. 43— B. C— Patteson.
Deer Keepers,] — Bj 24 & 25
Vict. c. 96, s. 16, "if any person
" shall enter into any forest, chase
" or purlieu, whether inclosed or
"not, or into any inclosed land
" where deer shall be usually kept,
" with intent unlawfully to hunt,
" course, wound, kill, snare or car-
" ry away any deer, every person
" intrust^ with the care of such
" deer, and any of his assistants,
" whether in his presence or not,
" may demand from every such of-
" fender any gun, firearms, snare or
" engine in his possession, and any
"dog there brought for hunting,
"coursing or killing deer, and in
" case such offender shall not im-
" mediately deliver up the same^
" may seize and take the same from
" him in any of those respective
" places, or, upon pursuit made, in
" any other place to which he may
"have escaped therefrom, for the
" use of the owner of the deer ;
" and if any such offender shall
" unlawfully beat or wound any
" person intrusted with the care of
" the deer, or any of his assistants,
" in the execution of any of the
" powers given by this act, every
"such offender shall be guilty of
" felony, and being convicted there-
" of shall be liable, at the discretion
" of the court, to be imprisoned for
" any term not exceeding two years,
" with or without hard labour, and
" with or without solitary confine-
" ment, and, if a male under the
" age of sixteen years, with or
" without whipping." {Former en-
284
LARCENY AND RECEIVERS.
actment, 7 & 8 Geo. 4, c. 29, a. 29.)
The 16 Geo. 3, c. 30, s. 9, author-
ized the seizing the guns of persons
carrying them into grounds where
deer are usually kept, with intent
to destroy them, and made the
beating or wounding the keepers,
in the due execution of their offices,
felony : — Held, that an assistant-
keeper had no right to seize the
person of one so armed in order to
get his gun, without having first
demanded his gun; and, conse-
quently, if such person beat the
keeper it was not within the statute,
the Keeper not being in the due ex-
ecution of his office. Sex v. Amey^
R. & R. C. C. 500.
Pulling a deer -keeper to the
ground and holding him there while
another person escapes, is not a heaJtr-
tng of the deer-keeper within 7 &
8 Geo. 4, c. 29, s. 29. Btg, v
Hale, 2 C. & K. 326-.Maule.
A mere battery is not sufficient to
come within this enactment. lb.
There must be a beating in the
popular sense of the word. lb.
(f ) Doves or Pigeons.
By 24 & 25 Vict. c. 96, s. 23,
"whosoever shall unlawftilly and
" wilfully kill, wound or take any
" house-dove or pigeon under such
" circumstances as shall not amount
" to larceny at common law, shall
" on conviction before a justice of
"the peace, forfeit and pay, over
" and above the value of the bird,
" any sum not exceeding 2/." (For-
mer provisiony 7 & 8 Geo. 4, c. 29,
8. 33.)
This enactment does not apply
where the killing, though unlaw-
ful, is done by wie party for the
protection of his own property, and
under the bon& fide belief that he
is acting in the exercise of a legal
right. Taylor v. Nevyman, 4 B. &
S. 69 ; 9 Cox, C. C. 314 ; 32 L. J.,
M. C. 186; 11 W. R. 752; 8 L.
T., N. S. 424.
Pigeons kept in an ordinary dove-
cote, having liberty of ingress and
egress at all times by means of
holes at the top, may be the sub-
jects of larceny. Req. v. Cheafor^
2 Den. C. C. 361 ; 5 Cox, C. C.
367 ; 21 L. J., M. C. 43.
(g) Fish.
By 24 & 25 Vict. c. 96, 8. 24.
whosoever shall unlawfully ana
wilfully take or destroy any fish
in any water which shall ran
through or be in any land ad-
joining or belonging to the dwell-
ing-house of any person being the-
owner of such water, or haviiffi
a right of fishery therein, shau
be guilty of a misdemeanor ;
" And whosoever shall unlaw-
fully and wilfully take or destroy,
or attempt to take or destroy,
any fish m any water not boM
such as hereinbefore mentioned,
but which shall be private prop-
erty, or in which there shall be
any private right of fishery, shall,
on conviction thereof before a
justice of the peace, forfeit and
pay, over and above the value of
the fish taken or destroyed (if
any), such sum of money, not ex-
ceeding 5^., as to the justice shaD
seem meet : provided, that noth-
ing hereinbefore contained shall
extend to any person angling be-
tween the beginning of the last
hour before sunrise and the ex-
piration of the first hour after
sunset; but whosoever shall by
angling between the beginning of
the last hour before simrise and
the expiration of the first hour
after sunset unlawfully and wil-
fully take or destroy, or attempt
to take or destroy, any fish in any
such water as first mentioned,
shjiU, on conviction before a jus-
tice of the peace, forfeit and pay
any sum not exceeding 5/., and if
in any such water as last men-
tioned he shall, on the like c<xi-
viction, forfeit and pay any sum,
not exceeding 2/., as to the justice
shall seem meet; and if the
boundary of any parish, town-
ee
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FJSEL
285
^^ ship or vill shall happen to be in
" or by the side of any such water
"as is in this section before men-
"tioned, it shall be sullicient to
"prove that the offence was com-
" mitted either in the parish, town-
" sliip, or vill named in the indict-
"ment or information, or in any
"parish, township, or vill adjoin-
" mg thereto." {jFbrmer provision,
7 & 8 Geo. 4, c. 29, s. 36.)
By s. 25, " if any person shall at
" any time be found fishing against
"the provisions of this act, the
" owner of the ground, water, or
" fishery where such offender shall
"be 60 found, his servant, or any
"person authorised by him, may
"demand from such offender any
" rod, line, hook, net, or other im-
" plement for taking or destroying
"lish which shall then be in his
"possession; and in case such of-
" fender shall not immediately de-
" liver up the same, may seize and
"take the same from, him for the
" use of such owner : provided,
"that any person angling against
"the provisions of this act, be-
" tween the beginning of the last
"hour before sunrise and the ex-
"piration of the first hour after
"sunset, from whom any imple-
"ment used by anglers shall be
"taken, or by whom the same
" shall be so delivered up, shall by
"the taking or delivering thereof
"be exempted from the payment
"of any damages or penalty for
" such angling." (Similar to 7 &
8 Geo. 4, c. 29, s. 35.)
By s. 26, " whosoever shall steal
" any oysters or oyster brood from
" anjr oyster bed, laying, or fishery,
" bemg the property of any other
"person, and sufficiently marked
"out or known as such, shall be
"giiilty of felony, and being con-
"victed thereof shall be liable to
^'be punished as in the case of
" simple larceny ;
" And whosoever shall unlaw-
" fully and wilfully use any dredge,
" or any net, instrument, or engme
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" whatsoever, within the limits of
" any oyster bed, laying or fishery,
" bemg the property oi any other
person, and sufficiently marked
out or known as such, for the
purpose of taking oysters or oys-
ter Drood, although none shall be
actually taken, or shall unlaw-
" fully and wilfully, with any net,
" instrument, or engine, drag upon
" the ground or soil of any such
" fishery, shall be guilty of a mis-
" demeanor, and being convicted
" thereof shall be liable, at the dis-
cretion of Ihe court, to be impris-
oned for any term not exceeding
three months, with or without
hard labour, and with or without
solitary confinement ;
" And it shall be sufficient in
any indictment to describe either
by name or otherwise the bed,
laying, or fishery in which any of
" the said offences sliall have been
^^ committed, • without stating the
^' same to be in any particular par-
ish, township or vill : proviaed,
that nothing in this section con-
'^ tained shall prevent any person
from catching or fishing for any
fioating fisli within the limits of
any oyster fishery with any net,
instrument, or engine adapted for
taking fioating fish only."
The 7 & 8 Geo. 4, c. 27, repealed
the 31 Hen. 8, c. 2 ; 5 Eliz. c. 21 ;
5 Geo. 3, c. 14 ; and 24 & 25 Vict,
c. 95, repeals 7 & 8 Geo. 4, c. 29 ;
and 7 Will. 4 & 1 Vict, c. 90, s. 5.
Semble, an indictment on 5 Geo.
3, c. 14, s. 1, for stealing fish out
of a. river running through an in-
closed park, need not have stated
the ways, means, or devices by
which the fish were taken. Jiex v.
Carradice, R. & R. C. C, 205.
On an indictment on 5 Geo. 3, c.
14, s. 1, for entering an inclosed
park, and taking fish bred, kept,
and preserved there, in the river
Kent, running through the park, it
appeared that the park was walled
roimd, except where the river en-
tered and passed out, and that
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286
LARCENY AND RECEIVERS.
there were fences to keep in the
deer, that there was nothing to
keep in the fish, that they were not
known to breed there, that nothing
was done to stock the river, but
that persons were never suffered to
angle in the park without leave :
— Held, that this was not a place
where fish were to be considered as
" bred, kept, or preserved " within
the meaning of the act. lb,
A defendant formed an oyster-
bed in a part of the Meuai Straits
where persons had been accustomed
to dredge for oysters. • The plaintiff
bought of a dredger a quantity of
oysters, when the defendant, having
been informed that the oysters were
taken from his bed, gave the plaint-
iff into custody on a charge of hav-
ing in his possession stolen oysters.
The plaintiff having been discharg-
ed, brought an action for false im-
prisonment, when the defendant re-
lied on 7 & 8 Geo. 4,-c. 29, s. 36:
and, in order to shew that he acted
bona fide and under the belief that
the oysters were stolen, he tendered
in evidence the record of the con-
viction of a person who had shortly
before been tried for taking oysters
from the same bed of the defend-
ant : — Held, that the record, mere-
ly as mch, was inadmissible. Thom-
as V. RusseU, 9 Exch. 764 ; 2 C. L,
R. 542 ; 23 L. J., Exch. 233.
Objection to a conviction for un-
lawfully taking and killing fish, in
that it did not allege that the de-
fendant had not the license or con-
sent of the owner ; but that it mere-
ly alleged that he took and killed
the fish unlawfully and against the
form of the statute, is good, and
therefore it was quashed. Rex v.
MaUtnson, 2 Burr. 679 ; 2 Ld. Ken-
yon, 384.
A stream of water running by
the side of a piece of ground, which
is inclosed on every side except that
on which it is bounded by the water,
was not a stream in inclosed ground,
within 5 Geo. 3, c. 14, s. 3, so as to
subject a person fishing therein to
the penalty inflicted by that act
Lisle V. Brown, 1 Marsh. 127 ; 5
Taunt. 440.
A person who fished in a fisbeij
belonging to another, but to which
he had a claim, for the purpose of
fivincr occasion to an action in or-
er to try the right, was not liable
to a penalty under 5 G-eo. 3, c. 14.
Kinnersley v. Orpe, 2 Dougl. 517.
A conviction under 5 Geo. 3, a
14, for killing fish in a private river,
without the consent of the owner,
should state the offence to have
been committed in an inclosed
ground. Wickes v. CluUerhtuk, 10
Moore, 63 ; 2 Ring. 483 ; S, P.,
Rex V. Sadler, 2 Chit. 519.
And that it was without the coo-
sent of such owner. Rex v. Damm,
2 B. & A. 378 ; 1 Chit. 147 : & P^
Rex V. Corden, 4 Burr. 2279.
So, a conviction on the same stat-
ute, for fishing without consent <tf
the owner, *' in part of a certain
stream, which runs between B. in
the parish of A., in the county of
W., and C, in the same parish and
county," quashed, because it did
not appear that the intermediate
course of the stream betwen the two
termini in which the offence was al-
leged to be committed was in the
county of W., and within the juris-
diction of the convicting magistrate.
Rex V. Edwards, 1 East, 278,
(h) Doffs.
By 24 & 25 Vict. c. 96, s. 18,
whosoever shall steal any dog
shall, on conviction thereof before
two justices of the peace, either
be committed to the common gaol
or house of correction, thereto be
imprisoned, or to be imprisoned
and kept to hard labour, for any
term not exceeding six months, or
shall forfeit and pay, over and
above the value of the said dog,
such sum of money, not exced-
ing 20/., as to the said justices
shall seem meet; and whosoever,
having been convicted of any such
offence, either against this or any
a
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BIRDS AND OTHER ANIMALS.
287
"former act of Parliament, shall
" afterwards steal any dog, shall be
"guilty of a misdemeanor, and
" being convicted thei'eof shall be
"liable, at the discretion of the
" court, to be imprisoned for any
"term not exceeding eighteen
" months, with or without hard la-
"bour." (Fanner provision, S & 0
VicL c. 47, 8. 2.)
By P. 19, "whosoever shall un-
" lawfully have in his possession or
" on Jiis premises any stolen dog, or
" the skin of any stolen dog, know-
" ing such dog to have been stolen
" or such skin to be the skin of a
"stolen do^, shall, on conviction
" thereof before two justices of the
"peace, be liable to pay such
"ram of money, not exceeding 20/.,
"as to such justices shall seem
"meet; and whosoever, having
" been convicted of any such offence,
"either against this or any former
"act of Parliament, shall afler-
*' wards be guilty of any such of-
" fence as in this section before
"mentioned, shall be guilty of a
** misdemeanor, and being convicted
"thereof shall be liable, at the dis-
" cretion of the court, to be impris-
"onedforany term not exceeding
** eighteen months, with or without
" hard labour." [Former provision,
8 & 9 Vict. c. 47, 6. 3.)
By s. 20, " whosoever shall cor-
" Fuptly take any money or reward,
" directly or indirectly, under pre-
" tence or upon account of aiding
"any person to recover any dog
** which shall have been stolen, or
** which shall be in possession of any
" person not being the owner there-
" of, shall be guilty of a misdemean-
"or, and being convicted thereof
" shall be liable, at the discretion of
"the court, to be imprisoned for
" any term not exceeding eighteen
" months, with or without hard la-
"bour.'* (Former provision, 7 & 8
Vict. c. 47, s. 4.)
Dogs are not the subject-matter of
larceny at common law. Heff. v.
Hohinson, Bell, C. C. 84 ; 5 Jur., N.
S. 203 ; 28 L. J., M. C. 58.
(i) Birds and other Animals,
By B. 21, " whosoever shall steal
any bird, beast, or other animal
ordinarily kept in a state of con-
finement or for any domestic pur-
pose, not being the subject of lar-
ceny at common law, or shall wil-
fully kill any such bird, beast or
animal, with intent to steal the
same or any part thereof, shall,
on conviction thereof before a jus-
tice of the peace, at the discretion
of the justice, either be committed
to the common gaol or house of
correction, tliere to bs imprisoned
only, or to be imprisoned and
kept to hard labour for any term
not exceeding six months, or else
shall forfeit and pay, over and
above the value of the bird, beast,
or other animal, such sum of mon-
ey not exceeding 20/. as to the just-
ice shall seem meet ; and whoso-
ever, having been convicted of
any such offence, either against
this or any fonner act of !]?arlia-
ment, shall afterwards commit
any offence in this section before
mentioned, and shall be convicted
thereof in like manner, shall be
committed to the common gaol
or house of correction, there to be
kept to hard labour for such term
not exceeding twelve months as
the convicting justice shall think
fit."
By s. 22, " if any such bird, or any
of the plumage thereof, or any dog,
or any such beast, or the skin there-
of, or any such animal, or any
part thereof, shall be found in the
possession or on the premises of
any person, any justice may re-
store the same respectively to the
owner thereof; and any person
in whose possession or on whose
premises such bird or the plumage
thereof, or such beast or the skm
thereof, or such animal or any
part thereof, shall be so found
288
LARCEanr and receivers.
u
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" (such person knowing that the
'^bird, beaKt, or animal has been
stolen, or that the plumage is the
plumage of a stolen bird, or that
^' the Bkm is the skin of a stolen
*^ beast, or that the part is a part
'^ of a stolen animal), shall, on con-
" viction before a justice of the
" peace, be liable for the first of-
" fence to such forfeiture, and for
" every subsequent offence to such
"punishment, as any person con-
" victed of stealing any beast or
" bird is made liable to by the last
" preceding section."
If pigeons are so far tame that
they come home every night to
roost in wooden boxes, hung on the
outside of the house of their owner,
and a party comes in the night and
steals them out of these boxes, this
is a larceny. Hex v. Brooks, 4 C.
&P. 131— Taddy, Serjt.
Ferrets, though tame and sale-
able, cannot be the subject of lar-
ceny. Hex V. Searing, U. & R. C.
C. 350.
Pheasants that have been reared
under hens, and have never become
wild, may be the subject of larceny.
Beg. v. Ifead, 1 F. & F. 350—
Campbell.
So young pheasants hatched by a
hen, and under the care of the hen,
in a coop, in a field at a distance
from a dwelling-house, are the sub-
ject of larceny. Reg.y. Corey, 10
Cox, C. C. 23— Channell. S. P.,
Reg. V. Gamham, 8 Cox, C. C. 451 ;
2 F. &. F. 347— Pollock.
Partridges about three weeks old
and able to fly a little, which
had been hatched and reared by
a common hen, placed under a
hen-coop, and after the removal of
the coop remained about the place
with the hen as her brood, sleeping
under her wings at night, may be
the subject of larceny. Reg. v.
ShichU, 38 L. J., M. C. 21 ; 1 L. R.,
C. C. 158; 17 W. R. 144; 19 L.
T., N. S. 327; 11 Cox, C. C.
189.
( j) Carcases or Skins.
By 24 & 25 Vict. c. 96, s. 11,
" whosoever shall wilfully kill any
" animal, with intent to steal the
" carcase, skin or any part of the
" animal so killed, shall be guilty of
" felony, and being convicted tbere-
" of shall be liable to the same poo-
" ishment as if he had been convict-
" ed of feloniously stealing the Fame,
" provided the offence of stealing
" the animal so killed would have
" amounted to felony." {Former
provision, 7 <fc 8 Creo. 4, c. 29, 8.
25.)
An indictment for stealing lambs
is sustained by proof that Uie car-
cases were found in the owner's
ground, and only the skins taken
away. Rex v. RawUns, 2 East, P.
C. 617.
In Rex V. WiUiams, 1 ^L C. C.
107, where a man was indicted un-
der 14 Geo. 2, c. 6, for killing sheep
with intent to steal the whole car-
case, proof of killing with intent to
steal part of the carcase was suffi-
cient to support the charge.
Cutting ofi'part of a slieep whilst
it is alive, with intent to steal such
part, will support an indictment for
killing with intent to steal part of
the carcase, if the cutting otf mast
occasion its death. Rex v. Cla^, B.
& R. C. C. 387.
On the trial of an indictment for
killing a ewe with intent to steal
the carcase, it appeared that the
prisoner wounded the ewe by jcut-
ting her throat, and was then inter-
rupted by the prosecutor, and the
ewe died of the wound two days af-
terwards. It was found by the
jury who convicted the prisoner,
that he intended to steal the carcase
of the ewe ; and th& judges held
the conviction right. Iteg, v. Sut'
ton, 8 C. & P. 291 ; Reg. v. APCul
ly, 2 Lewin, C. C. 272 ; 2 M. C. C.
34.
An indictment charged in the
first count, that A. and B. killed a
sheep, with intent to steal one of its
THE OWNERSHIP.
289
hind legs; and in the second count,
that C. received nine pounds weight
of mutton so stolen as afore^id ; and
in the third count, that C. received
the mutton ^^ of a certain evil-dis-
posed person," scienter, Ac. ; —
Held) that on this form of indict-
ment, all the three prisoners might
be properly convicted. Mex. v.
Whtder,! C. & P. 170— Coleridge.
Palling wool from the bodies of
li?e sheep and lambs, animo furan-
di, is larceny. Jtex v. Martin^ 1
Leach, C. C. 171 ; 2 East, P. C. 618.
So it is larcen V to take the milk
from a cow. lb.
18. The Oumershtp.
General Instances of Allegation
md Proof,'] — Property cannot be
Isid in a person who has never had
either actual or constructive posses-
aon. Bex v. Adams, R. & R. C.
C. 22o.
The property stolen may be describ-
ed as the real owner's, although it
never was actually in his possession,
hat in the possession of his agent
onlv. Rex v. Remnant, R. <fc. R.
C. C. 136.
Goods belonging to a guest, stolen
at an inn, may be laid to be the
property either of the inn-keeper or
of the guest. Rex v. Todd, 1 Leach,
C. C. 357, n.
So goods stolen from a washer-
woman may be laid to be her prop-
erty. Rex V. Parker, 1 Leach, C.
C. 357, n.
So in case of an a^ster, who
takes in sheep to agist lor another,
they may be laid to be his property.
-Sac V. Woodward, 1 Leach, C. C.
357 n ; 2 East, P. C. 653.
The coach-glass of a gentleman's
coach, standing in a coachmaster's
yard, may be laid to be the prop-
erty of the coach-master. Rex v.
%/or, 1 Leach, C. C. 356 ; 2 East,
P.C.653.
The property in goods stolen, is
properly alleged to be in the driver
of a coach, from the boot of which
they were taken. Rex v. Deakin,
2 East, P. C. 653 ; 2 Leach, C. C.
862.
The goods of a furnished lodging
must be described as the lodger's
goods, not as the goods of the orig-
inal owner. Rex v. Belstead, R. i
R. C. C. 4 1 1 ; Rex v. Brunswick, 1
M. C. C. 26.
If a corn factor purchases a ship
laden with com, and sends his light-
er to fetch it from the ship to his
wharf, a delivery of the com on
board the lighter puts it into the
possession of the corn-factor, al-
though the lighterman never deliv-
ers it at the fector's wharf. Rex v.
Spears, 2 Leach, C. C. 825 ; 2 East,
P. C. 568.
If a corn-factor purchases the car-
go of a vessel laden with corn, and
sends his servant with a lighter to
fetch it from the ship in loose bulk,
and the servant contrives to have a
certain portion of it put into sacks
by the metere on "board the ship,
and takes the corn so packed fel-
oniously away in the lighter imme-
diately from the ship, he may be in-
dicted for stealing the property of
the corn-factor, although it was
never put into his lighter, or other-
wise reduced into the com-fac tor's
possession. Rex v. Abrakat, 2 Leach,
C. C. 824; 2 East, P. C. 569.
The prisoner was sent by his fel-
low workmen to their common em-
ployer, to get the wages due to all
of them. He received the money
in a lump sum, wrapped up in pa-
per, with the names of the workmen
and the sum due to each written in-
side:— Held, that he received the
money as the agent of his fellow
workmen, and not as the servant of
the employer, and that, in an indict-
ment against him for stealing it, the
money was wrongly described as
the property of the employer. Reg,
V. Barnes, 1 L. R., C. C. 45; 12
Jur., K S. 549 ; 35 L. J., M. C.
204 ; 14 W. R. 805 ; 14 L. T., N.
S. 601.
The wife of A. was employed by
her father to sell sheep, and receive
290
LARCElinr AND RECEIVERS.
the amount at K. She did so ; but
before she left K. a dL note, which
she received in payment for the
sheep, was stolen trom her : — Held,
tliat the note was properly describ-
ed as the property of the husband.
Hex V. RoberU, 7 C. <fc P. 485—
littledale.
B. was charged with stealing
money, alleged to be the money of
A. A. had received the money as
the servant of an industrial co-oper-
ative society, for goods sold to mem-
bers of the society, and he was ac-
countable to the treasurer for the
monies he received. B. was a mem-
ber of the society, and had abstract-
ed Pome money from a till under
A.'s charge : — Held, that there was
a sufficient possession of the money
in A. to sustain a conviction for lar-
ceny against B. JReg. v. Burgess,
L. & C. 299 ; 9 Cox, C. C. 302 ; 9
Jur., N. S. 582 ; 32 L. J., M. C.
185 ;. 11 W. R. G02 ; 8 L. T., K S.
255.
An indictment for larceny, and
receiving goods knowing them to
have been stolen, is bad, if it does
not state to whom the goods be-
longed ; and the defect cannot be
amended, nor was it cured by 14
& 15 Vict. c. 100, s. 8. Beg. v.
Ward, 7 Cox, C. C. 421.
Iron found in the bed of a canal
during the course of cleansing was
returned by the canal company to
the true owners, if capable of
being identified, otherwise it r/as
kept by the canal company :
— Held, that in an indictment
against a stranger for larceny of
such iron, the property was properly
laid in the canal company. Beg, v.
Bowe, 8 Cox, C. C. 139 ; 5 Jur., N.
S. 274.
Churchwardens and Overseers,^ —
Money was stolen from an ancient
poor's box fixed up in a church : —
Held, that, in an indictment for
stealing it, the property would be
properly laid in the vicar and
churchwardens; and that an in-
dictment in which the property was
state^d to be that of" J. N. and oth-
ers," J. N. being the vicar, was
correct, without alleging J. N. to
be the vicar, or the " others " to be
the churchwardens. Beg, v. Wort-
ley, 2 C. & K. 283— C. C. R
An indictment for stealing goods
may, under 55 Greo. 3, c. 137, state
them to be the goods of the overseen
of the poor, for the time being, of
the parish of A. ; for this wiUim.
port that they belonged, at the
time of the theft, to the persom
who were the then overseers. JRa
V. Went, R. & R. C. C. 359.
Inhabita'nts of a County, '\ — ^Aroom
attached to a shire-hall, and built
and used for the purpose of a ball
and concert room, is within 7 Gea
4, c. 64, s. 5, which provides, that
in any indictment for any felony or
misdemeanor, committed in, upon,
or with respect to any court or otib-
er biulding erected or maintained
at the expense of any county, in, on,
or with respect to any goods or
chattels provided for or at the ex-
pense of the county, to be used in
or with any such court, it shall be
sufficient to state any such property,
real or personal, to belong to the
inh abitants of such county. Reg, v.
Winhow, 5 Cox, C. C. 346.
A chandelier, which had beoi
used as a. fixture in the ball-room,
and subsequently removed to an-
other part of the building, but not
used for any purpose, is also withm
the same statute, and is nroperlj
described as the property oi the in-
habitants of the county. Ih,
A hall-keeper, appointed by the
justices, is not bailee of any of the
contents of the shire-hall, but is the
servant of the inhabitant^ and, if
he converts to his own use any of
the property committed to his care,
he may be indicted for larceny. A
Joint Stock Companies.^ — A. was
convicted on a count which chained
him with stealing a piece of paper,
THE OWNERSHIP.
291
the property of G. and others, his
masteni. G. and others were di-
rectors of an unincorporated insur-
ance company, managed its affairs,
appointed, paid, controlled and dis-
missed the clerks and gther serv-
ants, and had the charge and cus-
tody of all the books and papers
of the company. The company
had a drawing account with G. &
Co., and used to send their pass-
books in everv week to be written
Up, and their messenger went on
the following morning to bring it
back, when it was returned, togeth-
er with the cheques, &c., of the pre-
ceding week. A. was a salaried
clerk m the office of the company^
and also a shareholder ; it was his
duty to receive the pass-book and
vouchers from the messenger, and
to preserve the vouchers for the use
of the company. G. & Co. de-
Kyered the pass-book, containing
among other things a cashed cheque
for 1,400/. to the messenger of the
company, who delivered the book
and cheque to A. in the usual way,
and he thereupon fraudulently de-
stroyed it :— -Held, that the cheque
was the property of the directors,
and that A., though a shareholder
in the company, had not a joint
pro{)erty in it, and was properly
convicted of larceny. JReg. v.
V<^, 2 Den. C. C. 14; T. & M.
842; 14 Jur. 870; 19 L. J., M. C.
193 ; 4 Cox, C. C. 336.
The London Dock Company by
mistake delivered two hogsheads of
SQgar to a earner, who produced
tvo delivery notes authoiizing
them to deliver two other hogsheads
of siigar, the property of B. The
carrier broke bulk, and was indict-
ed for larceny :— Held, that the
property was well described as the
property of the London Dock Com-
pany, they having still a special
property in the chattels, notwith-
standing that they parted with the
possession by mistake. Beg, v.
Vincent, 3 C. & K. 246 ; 2 Den.
C. C. 464 ; 16 Jur. 457 ; 21 L. J.,
M. C. 109 ; 5 Cox, C. C. 537.
If in an indictment for larceny
the property of the goods is laid in
A., and the property is proved to
be in the London Dock Company,
this was amendable under 14 & 15
Vict. c. 100, s. 1. Jb,
In an indictment against a serv-
ant of the West India Dock Com-
pany, for stealing a quantity of
canvas and hessen belons:ino: to the
company from their warehouses, it
was sufficient to state the proper-
ty to be " the goods and chattels of
the West India Dock Company,"
and not necessary, notwithstanding
the words of the 1 & 2 Will. 4, c.
lii, s. 133, to allege, in addition,
that it was feloniously taken from
the company. JRec/. v. Stoke, 8 C.
& P. 151-Mirehouse, C. S.
In an indictment for larceny, the
property was laid to be in G., man-
ager of the Dudley and West Rrom-
wich Bank. The property belong-
ed to the banking company, a com-
pany consisting of more than twen-
ty partners, but no registration of
it, or appointment of any manager
or public officer, was proved. The
indictment was amended by laying
the property in W. and others, w!
being one of the partnere : — Held,
that the ownership, as amended,
was rightly laid under 7 Geo. 4, c.
64, s. 14, and that it need not have
been laid in the public officer (pre-
suming there was one), under 7 Geo.
4, c. 46, s. 9. Reg. v. Pritchard, 8
Cox, C. C. 461 ; L. & C. 34 ; 7
Jur., N. S. 557 ; 30 L. J., M. C.
109 ; 9 W. R. 579 ; 4 L. T., K S.
340.
The 1 & 2 Vict. c. 85, was con-
tinued by 3 <fc 4 Vict. c. Ill; and
a shareholder in a joint stock bank-
ing company may be indicted for
embezzling or stealing the money
of the company, it being laid as the
property of a public officer of the
company correctly appointed and
registered. Heg, v. Atkinson, 2
M. C. C. 278 ; Car. & M. 525.
292
LARCENY AND RECEIVERS.
Father or Son^ — An indictment
for stealing the wearing appai*el of
a son, who is an apprentice to his
&ther, and furnished with his
clothes in pursuance of his indent-
ares, should lay them to be the
property of the son, and not of the
father. Rex v. Forsgate^ 1 Leach,
C. C. 463.
If a father buys and pays for
cloth which is made into trousers
for his son, who is seventeen years
of age, these trousers may, on an
indictment for larceny, be laid as
the property of the father. Reg v.
Hughes^ Car. & M. 598 — Patteson.
In such cases the property may
be laid either in the father or in the
son, but the better course is to lay
it in the latter. lb.
Goods under JEixBcuUon,'] — ^If goods
seized under a fi. fa. are stolen, they
may be described as the goods of
the jiarty against whom the writ
issued ; for though they are in cus-
todid. legis, the original owner con-
tinues to have a property in them
until they are sold. Ilex\, Fastall,
2 Ross. C. & M. 291, 382.
Peers and Peeresses.] — In an in-
dictment for larceny of goods, the
property of a peer who is a baron,
the goods may be laid as the goods
and chattels of " G., T. R., Lord
D.," without styling him Baron
D., although the more proper way
to describe the peer is by his christ-
ian name, and his degree in the
peerage, as duke, earl, baron, or
the like. Reg. v. Pitts, 8 C. & P.
771 ; Erskine ; S. P., Reg. v. Calet/,
5 Jur. 709— Taddy, Serjt.
An indictment for larceny, laying
the goods stolen to be the property
of victory Baroness Turkheim, is
good, although her name is Selind^
Victoire. Rex v. Stdls, 2 Leach,
C. C. 861.
Trustees of Benefit and Friendly
Societies,] — An indictment for the
larceny of property belonging to
trustees who are not incorponited,
must lay the property to be in theiQ
by name as individuals, subjoinii^
a description of the character in
which they are authorized to act
Rex V. Sherrington^ 1 Leach, C. C.
513.
Where a friendly society had ap-
pointed a treasurer and two trus-
tees, one of the trustees was held
guilty of larceny in stealing the
money of the society, the money be-
ing alleged in the indictment to be
the property of the treasurer, and
having been taken from his hands
with me intention of stealing. Beg.
V. Cain, 2 M. C. C. 204 ; Car. &
M. 309.
The goods in a dissenting chapel,
vested in trustees, cannot be de-
scribed in an indictment as the
goods of a servant who has merely
the custody of the chapel and tilings
in it, to clean and keep in order,
although he has the Key of the
chapel, and no other person but the
minister has another key. JS«rv.
Hutchinson, R. & R. C. C. 412.
A bible had been given to a so-
ciety of Wesleyans; and it had
been bound at the expense of the
society. B. stated that he was (me
of the trustees of the chapel, and
also a member of the society. No
trust deed was produced : — Held,
that, in an indictment for stealing
the Bible, the property was rightly
laid in B. and others. Rex v. j&ni
ton, 5 C. & P. 537— Parke.
A box belonging to a benefit so-
ciety was stolen from a room in a
public -house. Two of the stewards
had keys of this box ; and, by the
rules of the society, the landlord
ought to have had a key, but in
fact he had not :— Held, that the
prisoner might be convicted on a
count laying the property in the
landlord alone. liex v. Wffmer, i
C. & P. 391— Parke.
A. was indicted for stealiM
money, the property of " F. and
others." ** F. and others" were
trustees of a friendly society ; and
THE OWNERSHIP.
293
A. and H. were members of the so-
dety. H. was in possession of a
&op where goods were sold for the
society, aud had the sole manage-
ment, and was answerable for prop-
erty and money coming into his
possession. A., while assisting in
the shop, w^ithout salary, took the
money from the till. The prosecu-
tion failing to prove the society was
duly inrolled, the indictment was
amended by inserting H.'s name,
instead of " F. and otliers." It was
Aen proved, on behalf of A., that
Ae society was inroUed : — Held,
that a conviction upon the amend-
ed indictment might be sustained.
%. V. Webster, 7 Jur., N. S. 1208 ;
81LJ.,M. C. 17; low. R. 20;
5 L T., N. S. 327— C. C. R.
On Death of Parties,] — In an in-
dictment for stealing property
which has belonged to a deceased
person, who appointed executors,
who would not prove the will, the
property must be laid in the ordina-
ry, and not in a person who, after
the commission of the offence, but
before the indictment, has taken
oat letters of administration with
the will annexed; because the
lights of an administrator only com-
mence from the date of the letters,
ss dl^inguished from those of an
executor, which commence, not
fiwp the granting of the probate,
hot from the death of the testator,
fia V. Smith, 7 C. & P. 147— Bol-
land and Coleridge.
Where two had jointly stock
upon a farm, and one died, leaving
several children :— Held, that the
property in sheep stolen was proper-
ly alleged to be m the survivor and
tiie children ; the former swearing
that he considered himself to hold
one moiety for the benefit of the
latter. iCex v. ScoU, 2 East, P. C.
65o;R. &R.C.C. 13.
B. & C. were partners ; C. died
intestate, leaving a widow and
children; from the time of his
death the widow acted as partner
with D., and attended the business
of the shop ; three weeks after C.'s
death part of the goods was stolen ;
they were described in thte indict-
ment as the goods of D. and the
widow : — Held, that the description
was right. Hex v. Gaby, R. & R.
C. C. 178.
On an indictment for stealing
sheep, which had been stoletf after
the death of the late owner, there
being no formal proof of a will or
an administration, but it appear-
ing that the sheep were in charge
of the shepherd, under the orders of
a steward, who was under the or-
der of the prosecutors, and took di-
rections from and rendered ac-
counts to ihem : — Held, that there
was sufficient evidence of a pos-
session in them, which would sus-
tain the indictment. jReg. v. King,
4 F. & F. 493--Crompton.
I A knife was stolen from the
pocket of A., as his dead body lay
m a road at S., in the diocese of W.
Tlie last place of abode of A. was
at T., in the diocese of G. ; but A.'s
father stated that he believed his
son had left T. to come to live with
him, but did not know whether his
son had given up his lodgings at
T. : — Held, that this was sufficient
proof to support a count for larce-
ny, laying the property in the Lord
Bishop of W. Reg.Y. Tippin,Q2kT,
& M. 545 — Patteson.
A. was convicted upon an indict-
ment charging her with stealing
numerous articles, laid as the prop-
erty of the ordinary. The evidence
was, that the articles, which belong-
ed to a deceased person, were after
her death found in A.'s possession ;
that search had been made for a
will, and none found ; and that a
small portion only of the articles
had been seen in the house of the
deceased after her death: — Held,
that the property was rightly laid in
the ordinary, and that the sessions
had done ri^ht in leaving the case,
as to the wnole of the articles, to
the jury, and in refusing to put the
294
LARCENY AND RECEIVERS.
prosecutor to an election to proceed
only in respect of the taking any
particular articles. Reg, v. John-
son, Dears. & B. C.C.340; 4Jur.,
N. S. 55 ; 27 L. J., M. C. 52 ; 7 Cox,
C. C. 379.
On Conviction ofFehns.'] — Goods
of an adjudged felon, stolen from
his house, in the possession and oc-
cupation of his wife, may be describ-
ed in an indictment for larceny as
the goods of the Queen. But the
house cannot be so described with-
out office found. lieg, v. White-
head, 2 M. C. C. 181 ; S. P., Coombei
V. Queen^s Proctor, 16 Jur. 820 —
Pre. C.
19. Heceivers of Stolen Property,
(a) Statutory Provisions,
By 24 & 25 Vict. c. 96, 8.91,
whosoever sl^all receive any chat-
tel, money, valuable security, or
other propeity whatsoever, the
stealing, taking, extorting, obtain-
ing, embezzling, or otherwise dis-
posing whereof shall amount to a
felony either at common law or
by virtue of this act, knowing the
same to have been feloniously
stolen, taken, extorted, obtained,
embezzled, or disposed of, shall be
guilty of felony, and may be in-
dicted and convicted either as an
accessory after the fact or for a
substantive felony, and in the lat-
ter case, whether the principal
felon shall or shall not have been
previously convicted, or shall or
sliall not be amenable to justice ;
and every such receiver, howsoev-
er convicted, shall be liable, at
the discretion of the court, to be
kept in penal servitude for any
term not exceeding fourteen and
not less than five years (27 & 28
Vict. c. 47), or to be imprisoned
for any term not exceeding two,
with or without hard labour, and
with or without solitary confine-
ment, and, if a male under the
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'^ age of sixteen, with or without
" wnipping : provided, that no per-
" son, howsoever tried for reoeivkig
'' as aforesaid, shall be liable to b«
'^ prosecuted a second time for the
" same ofience." {Former providun^
7 & 8 Geo. 4, c. 29, s. 54.)
By s. 95, " whosoever diall re-
ceive any chattel, money, valuable
security, or other property what-
soever, the stealing, taking, ob-
taining, converting, or dL<;po$iDg
whereof is made a misdemeancMr
by this act, knowing tJie same to
have been unlawfully stolen, tak-
en, obtained, converted, or db;po6-
ed of, shall be guilty of a misde-
meanor, and may be indicted and
convicted thereof, whether the
person guilty of the principal mis-
demeanor shall or shall not hare
been previously convicted thereof^
or shall or shall not be amenable
to justice ; and every such receiv-
er, being convicted thereof, shall
be liable, at the discretion of the
court, to be kept in penal Fenri-
tude for any term not exceeding
seven years and not less than fire
years (27 & 28 Vict. c. 47), or to
be imprisoned for any term not
exceeding two years, with or with-
out hard labour, and with or wiUw
out solitary confinement, and, if a
male under the age of sixteen
years, with or without whipfjing.'*
By 8. 97, " where the stealing or
taking of any property whatsoever
is by this act punishable on sum-
mary conviction, either for every
ofience, or for the first and second
ofience only, or for the first offence
only, any person who shall receive
any such property, knowing the
same to be unlawfully come by,
shall, on conviction thereof before
a justice of the peace, be lial^,
for every first, second, or subse-
quent ofience of receiving, to the
same forfeiture andpuni^mentto
which a person guilty of a first,
second or subsequent ofiTeoce of
stealing or taking such property is
by this act made liable.''
WHO ARE RECEIVERS.
295
(b) Who are Receivers,
If a receiver of stolen goods re-
ceives them for the mere purpose of
coDceaiment, without deriving any
profit at all, he is just as much a re-
ceiver as if he had purchased them.
Bex V. Richardson, 6 C. & P. 335
— Gaselee, Vaughan and Taunton.
Without proof of an actual taking
into possession, an indictment for
receiving goods knowing them to
have been stolen cannot be sustain-
ed. Reg, v. HiU, 3 New Sess. Cas.
648 ; 1 Den. C. C. 453 ; T. & M.
150 ; 2 C. & K. 978 ; 13 Jur. 545 ;
18 L J., M. €.199.
W. stole a watch from A. ; and
while W. and L. were in custody
together, W. told L. that he had
"planted" the watch under a flag
in a soot-cellar of L.'s house. After
this L. was discharged, and went to
the Ha^ and took up the watch, and
sent his wife to pawn it: — Held,
that, if L. thus took the watch in
consequence of W.'s information,
W. telling L. in order that he might
ose the information by taking the
watch, L. was indictable for this as
a receiver of stolen goods; but that
if this was an act done by L. in op-
position to W., or against his will,
It might be a question whether it
would be a receiving. Reg, v.
Wade, 1 C. & K. 739— Pollock.
A prisoner admits having bought
wi article, which is subsequently
fonnd iu his house ; that is sufficient
evidence for a jury to convict of re-
ceiving without proof of an actual
receipt, or that he had ever been at
the houFe from before the purchase
to the time of the charge. Reg, v.
Matthews, T. & M. 337 ; 1 Den. C.
C. 596; 14 Jur. 513.
Two men, having stolen some
fowls, put them into a sack and
carried them into the house of the
prisoner's father at about half-past
four o'clock in the morning. After
rettudning in the house about ten
ininttes, the two men were seen to
come out at a back door, one of
them carrying the sack, and the
prisoner going before them with a
light. "Die stable-door was closed
by one of the party, and when the
policeman entered he found the two
thieves and the piisoner standing
round the sack, which lay on the
floor untied, as if bargaining for the
fowls : — Held, that this was not a
receiving within the statute, the
prisoner never having had the goods
under his control, and the whole
transaction being only inchoate.
Reg, y, Wiley, 2 Den. C. C. 37 ; 4
Cox, C. C. 412 ; T. & M. 367 ; 15
Jur. 134; 20 L. J., M. C. 4.
It is not necessary to prove an actual
manual possession of stolen goods,
in order to sustain an indictment for
receiving the goods, but it is sufli-
cient if the goods are shewn to have
been under the control of the person
charged with receiving. Reg, v.
SmiUi, Dears. C. C. 494; 1 Jur., N.
S. 575 ; 24 L. J., M. C. 135 ; 6 €)ox,
C. C. 554.
Stolen goods were found by the
owner in the pockets of the thief;
a policeman was sent for, who took
the goods and subsequently returned
them to the thief, and the owner
then sent the latter to sell them
where he had sold others ; he ac-
cordingly sold them at the shop
of D. D. was tried and con-
victed of receiving the goods know-
ing them to have been stolen : —
Held, that the conviction was wrong,
as the facts did not constitute a re-
ceiving of stolen goods within 7 & 8
Geo. 4, c. 29, s. 54. Reg, v. Dolan,
Dears. C. C. 436 ; 3 C. L. R. 295 ;
1 Jur., N. S. 72 ; 24 L. J., M. C.
59 ; 6 Cox, C. C. 449.
A. was indicted for feloniously re-
ceiving a watch and a hat. It was
proved that a policeman, in conse-
quence of information received from
B. (the thief ), went to a room in a
lodging-house where A. slept, and
in a box in that room found the hat.
A. admitted that the hat had been
brought there by B., but denied all
knowledge of the watch. On the
following day A. was taken into
296
LARCENY AND RECEIYERS.
custody, and he then told the police-
man that he knew where the watch
was, but did not like to say any-
thing about it before the people of
the house. A. then took the police-
man to a place where he said the
watch was, but it wa^ not found
there, but he afterwards sent a boy
for the watch, and on the boy bring-
ing the watch to A., he gave it to
the policeman: — Held, that there
was sufficient evidence to go to the
jury. Reg, v. Hohson^ Dears. C. C.
400.
It is not necessary, to constitute
a receiving of stolen goods, that the
person indicted should have had
manual possession of the goods ; but
dii'ecting a servant to dispose of
them, as by pawning or otherwise,
will be sufficient to support the
charge. Stolen property was brought
by the thief into A.'8 shop ; A., with
guilly knowledge, called a servant
and directed her to take the stolen
goods to the pawn office and " pawn
them for the girl " (the thief). A.'8
servant did so accordingly, and
brought back the money, which she
handed to the thief in her mistress's
presence. A. never had manual
possession of either the goods or the
money : — Held, that this amounted
to a receiving by A. of the stolen
property. Meg, v. Miller ^ 6 Cox, C.
C. 353.
W., T. and the prisoner were in-
dicted, W. and T. in one count for
embezzling goods, and in another
for stealing them ; the prisoner for
receiving the goods knowing them
to have been stolen. The jury
found W. guilty of embezzlement,
acquitted T., and found the prisoner
guilty of receiving : — ^Held, that the
conviction of the prisoner was right.
Reg, V. Frampton^ Dears. & B. C.
C. 585; 4 Jur., N. S. 566; 27 L. J.,
M. C. 229; 8Cox, C. C. 16.
Stolen goods were delivered by a
thief to the wife of the prisoner in
his absence ; she paid Qd, on account,
but the amount to be paid was not
then fixed. The prisoner and the
principal felon afterwards met, wbea
the prisoner, with the knowledge
that the goods had been stolen,
agreed upon the price and paid the
balance : — Held, that he was prop-
erly convicted of receiving the
goods knowing them to be stoleiL
Reg. V. Woodward, L. & C. 122; 9
Cox, C. C. 95; 8 Jur., N. S. 104;
31 L. J., M. C. 91 ; 10 W. R. 298;
5 L. T., N. S. 686.
A prisoner was convicted of fel-
oniously receiving stolen goods un-
der the following circumi^nces : —
The goods were stolen, and sent by
the thief in a parcel by railway, ad-
dressed to the prisoner. A police-
man belonging to the railway com-
pany, from information he had re-
ceived, examined the parcel at the
railway station at the place of its
destination, and stopped it. It was
called for by one of the thieves on
the day of its arrival, and refused
to him. A porter of the company,
the next day, by the direction of
the policeman, took it to a house
which the thief who had called for
it designated, and it was there re-
ceived by the prisoner : — Held, that
the conviction was wrong, as the
goods had ceased to be stolen goods,
within the statute, at the time of the
receipt by the prisoner. Reg. y.
Schmidt, 10 Cox, C. C. 172 ; 1 L
R., C. C. 15; 12 Jur., K S. 149;
35 L. J., M. C. 94 ; 14 W. R. 286 ;
13-1. T.,N.S. 679.
(c) Joint Receivers.
By 24 A 25 Vict. c. 96, s. 94,
" if upon the trial of any two or
»" more persons indicted for jointly
" receivmg any property it shall be
" proved that one or more of such
"persons separately receiver! any
" part or parts of such property, it
" shall be lawful for the jury to con-
" vict, upon such indictment, such
"of the said persons as sliall be
" proved to have received any part
" or parts of such property." {Far-
mer provision, 14 & 15 Vict. c. 100,
8. 14.)
HUSBAND AND WIFE.
297
Two or more persons may be in-
dicted jointly for receiving stolen
property, knowing it to have been
stolen, though each successively re-
ceived the whole of the same at dif-
ferent times, and it makes no differ-
ence whether the receipt was direct
from the felon or from an interme-
diate person. Reg, v. Reardon or
Bearden, 1 L. R., (D. C. 31 ; 12 Jur.,
N.S.476; 35 L. J., M. C. 171 ; 14
W.R.663; 14 L. T., N. S. 449.
If two are charged jointly with
receinng stolen goods, a joint act of
receiving must be proved. Proof
tiiat one received in the absence of
the other, and afterwards delivered
to hnn, will not suffice. Rex v.
Musingkam, 1 M. C. C. 257.
A. received goods from B. (who
was the servant of C.) under col-
oar of a pretended sale: — Held,
that the feet of his having received
such goods with knowledge that B.
liad no authority to sell, and that
be was in fact defrauding his master,
TO sufficient evidence to support
an indictment for larceny against A.
jointly with B. Reg. v. H(ymly^ 1
C. k K. 305— Coltman.
D. and G. were charged with
jomtly receiving stolen goods. The
evidence was, that D. tii-st received
the goods on the road between B.
*Dd S. ; and that subsequently G.
received a portion of them at S. : —
Held, that the evidence as to the
• peparate act of receiving by G. was
jnaproperly admitted, and that the
indictment was satisfied by the proof
of the receiving by D. Reg, v. Dov-
% 15 Jur. 230 ; 20 L. J., M. C.
105; 4 Cox, C. C. 428— C. C. R.
Plea by one prisoner, indicted
•ngly for receiving stolen goods, of
intrrfois acquit, under an indictment
•gainst him and four others, on
which one was convicted, and the
prisoner and the three others were
•cqnitted, is srood. Rex v. Dann. 1
M/C. C. 424.^
Where A., knowing that goods
«ve been stolen, directs B., his serv-
tot, to receive them into his prem-
FisH. Dig.— 22.
ises, and B., in pursuance of that
direction, afterwards receives them
in A.'s absence, B. knonidng that
they have been stolen, they may be
jointly indicted for receivmg them.
Reg, V. Parr, 2 M. & Rob. 346—
Maule.
Two were convicted under a
count charging them with receiv-
ing goods knowing them to have
been stolen, upon proof that they
were present, aiding and abetting
a third receiver, who was found
in actual possession of the box con-
taining the goods, but the two former
never had actual possession of the
box : — Held, that the conviction
was right. Reg, v. Rogers^ 37 L. J.,
M. C. 83— C. C. R.
(d) Hashcmd and wife,
A wife cannot be convicted of
feloniously receiving goods st-olen
by her husband. Keq, v. Brooks^
Dears. C. C. 184; 17 Jur. 400 ; 22
L. J., M. C. 121 ; 6 Cox, C. C. 148.
A wife, jointly with her husband,
cannot be convicted of receiving
stolen goods. Reg, v. Mathews^ T.
& M. 337 ; 1 Den. C. C. 596 ; 14
Jur. 513.
Where both were found guilty on
a joint indictment, the conviction
of the husband affirmed, of the wife
quashed. Ih,
Husband and wife were jointly
indicted for receiving goods, know-
ing them to have been stolen.
The jury found both guilty, and
that the wife received the goods
without the control or knowledge
of, and apart from her husband,
and that he afterwards adopted his
wife's receipt : — Held, that the con-
viction against the husband could
not be sustained. Reg, v. Dring^
Dears. & B. C. C. 329. ; 3 Jur., N.
S. 1132; 7 Cox, C. C. 382.
But a husband may be convicted
of feloniously receiving property
which his wife has stolen volunta-
rily and without any constraint on
his part, if he receives it, knowing
that she has stolen it. Reg, v.
298
LARCENY AND RECEIVERS.
M'Athey, L. & C. 250 ; 9 Cox C.
C. 251 ; 8 Jur., N. S. 1218 ; 32 L.
J.,M. C. 35; 11 W. R. 73; 7 L.
T., N. S. 433.
20. Indictment for Stealing and Re-
ceiving.
(a) Stealing.
Several Counts.y-By 2A & 25
Vict. c. 96, s. 5, " it shall be lawful
" to insert several counts in the
'^ same indictment against the same
" person for any number of distinct
"acts of stealing not exceeding
" three, which may have been com-
" mitted by him against the same
" person within the space of six
" months from the first to the last
" of such acts, and to proceed there-
" on for all or any of them." (ASi'm-
ilarto U & 15 Vict. c. 100, s. 16.)
Election of Larcenies charged,!^ —
By 8. 6, " if upon the trial of any
" indictment for larceny it shall ap-
" pear that the property alleged m
" such indictment to have been stol-
" en at one time was taken at
" different times, the prosecutor
" shall not by reason thereof be re-
" quired to elect upon which tak-
" ing he will proceed, unless it shall
" appear that there were more than
" three takings, or that more than
" the space of six months elapsed
" between the first and the last of
" such takings ; and in either of such
" last-mentioned cases the prosecut-
" or shall be required to elect to
" proceed for such number of tak-
" ings, not exceeding three, as ap-
" pear to have taken place within
" the period of six months from the
" first to the last of such takings.''
(Similar to former provision, 14 <&
15 Vict. c. 100, s. 17.)
On an indictment for stealing
fowls, in a first count laid on
the 15th of February, for stealing
ten fowls, and in the third count
laid on the 13th of February in the
same year, for stealing three fowls,
the prosecutor was put to elect be-
tween the two occasions. Heg, v.
Lonsdale, 4 F. & F. 56— Pollock.
A. was tried upon an indictm^t
which contained two counts, the
first for embezzlement, and the sec-
ond for larceny as a bailee. Attk
close of the case for the prosecution,
it was objected that the indictment
was bad for misjoinder of counts,
and that the counsel for the prose-
cution could not be allowed to elect
upon which count he would pro-
ceed. The objection was overruled.
The counsel for the prosecution
elected to proceed upon the seooad
count, and A. was convicted:—
Held, the conviction was right
Heg. V. Holman, 9 Cox, C. C. 201 ;
L. & C. C. C. 177; 8 Jur., K a
1082 ; 10 W. R. 718 ; 6 L. T., N.
S. 474.
Before this Enactment. '\ — Two
persons indicted for horse-stealiug
in county A., were found in joint
possession of two horses in that
county, which they had jointiv
taken at difierent times and places
in county B. : — Held, that as each
taking in county B. was a separate
felony, the prosecutor's counsel
must elect on which to proceed.
Rex V. Smith, R. & M. 295-Iittle.
dale.
Form of Allegations.^ — An indict-
ment charged Uiat A. on &c., being
the servant of K., on the same day,
&c., one gold ring, <fec., then and
there being his goods and chattels,
feloniously did steal: — ^Held, that
the fair import of the chaijge was,
that A. was the servant of K. at the
time when the theft was committed.
Rex V. Somerton, 7 B. & C. 463.
An indictment charged that the
prisoner, whilst a servant of A., stole
the money of A. The prisoner was
not the servant of A., but the serv-
ant of B., and the money which he
stole was the money of B., but in
the possession of A. as the agent d
B. : — ^Held, that the allegation as to
the prisoner being servant might be
STEALING.
299
rejected as surplusage, and the pris-
oner convicted of simple larceny,
the money being properly alleged
to belong to A., who had a special
property therein. Reg. v. Jennings,
Dears. & B. C. C. 447 ; 4 Jur., N.
S. 146 ; 7 Cox, C. C. 397.
If goods are laid in an indictment
as " the property of A. W. G. esq.,"
the addition is not material, and if
he k not an esquire, it is no ground
for an acquittal. JKex v. Ogilvie, 2
C. & P. 23a—Burrough.
Description of Instrument,^ — By
14 & 15 Vict. c. 100, s. 5, "in any
" indictment for stealing, destroying,
"or concealing any instrument, it
" shall be sufficient to describe such
" instrument by any name or desig-
" nation by which the same may be
" usually known, or by the purport
"thereof, without setting out any
"copy, or fac Bunile thereof, or
" otherwise describing the same or
"the value thereof.
Coin and Bank Notes. 1— -By 14 &
15 Vict. c. 100, s. 18, " m every in-
" dictment in which it shall be nec-
" essary to make any averment as to
"any money, or any note to the
"Bank of England, or any other
" bank, it shall be sufficient to de-
" scribe such money or bank-note
" amply as money, without specify-
"ing any particular coin or bank-
" note ; and such allegation, so far
" as regards the description of the
"property, shall be sustained by
" proof of any amount of coin, or of
" any bank-note, although the par-
"ticular species of coin of which
"such amount was composed, or
"the particular nature of the bank-
" note, shall not be proved."
Bank notes are properly described
in an indictment for larceny within
this enactment as money, although
at the time when they were stolen
they were not in circulation, but
were in the hands of the bankers
themselves. Heg, v. West, Dears.
& B. C. C. 109 ; 2 Jur., N. S. 1 123 ;
26 L J., M. C. 6 ; 7 Cox, C. C. 183.
An indictment, charging a steal-
ing of one or more specific thing or
things, is not supported, except by
proof of some one or more of the
specific things so charged. Beg. v.
Bond, 1 Den. C. C. 517 ; T. & M.
242 ; 4 New Sess. Cas. 143 ; 14 Jur.
399 ; 19 L. J., M. C. 138.
Therfore, an indictment charging
a stealing of 70 pieces of the cur-
rent coin of the realm, called sov-
ereigns, of the value of 70^., 140
pieces, called half-sovereigns, 500
pieces, &c., called crowns, &c., is
not suppoited by proof of a stealing
of a sum of money consisting of
some or other of the coins mention-
ed in the indictment, without proof
of some or one or more of the spe-
cific coins there charged to have been
stolen. lb.
In an indictment for larceny, two
shillings stolen were described as
" two pieces of the current silver
coin of the realm, called shillings,
of the value of two sliillin^, of the
goods and chattels of S. P." : the
words "goods and chattels" may
be rejected as surplusage, and the
indictment is good. JReg. v. Bad-
ley, 3 New Sess. Cas. 65i ; T. & M.
144; 1 Den. C. C. 450; 2 C. & K.
974; 13 Jur. 544; 18 L. J., M. C.
184 ; 3 Cox, C. C. 460.
Before this Enactment^ — An in-
dictment for stealing 10/. in monies
numbered was not sufficient ; some
of the pieces of which that money
consisted should be specified. Rex
V. Fry, R. & R. C. C. 482.
If the thing stolen was described
as a bank post-bill, and was not set
out, the court could not take judi-
cial notice that it was a promissory
note, or that it was such an instru-
ment as under 2 Geo. 2, c. 25, might
be the subject of larceny, although
it was described as made for the
gayment of money. Rex v. Chardy
L & R. C. C. 488.
Where an indictment described a
bank-note as signed by A. H. for
the Governor and Company of the
300
LARCENY AND RECEIVERS.
Bank of England, and a prisoner
was convicted ; such conviction was
bad, there being no evidence of A.
H.'8 signature. Bex v. Graven^ R.
& R. C. C. 14; 2 East, P. C. 601.
Dollars or Portugal money, not
cun-ent by proclamation, were not
goods within 24 Geo. 2, c. 45. Rex
V. Leigh^ 1 Leach, C. C. 52 ; *X P.,
Rex V. Grimes, 2 East, P. C. 646.
Cheques, "] — The servant of a
drawer of a cheque on bankers, to
whom it is given to deliver to a
third person, appropriating the value
to his own use, may be charged in
an indictment for stealing a valu-
able security, to wit, a cheque of
the value specified, without stating
the drawees to be bankers. Reg, v.
Heath, 2 M. C. C. 33.
Articles of Trude or Merchandise,^
— A set of new handkerchiefs in a
piece may be described as so many
handkerchiefs, though they are not
separated one from another, if the
pattern designates each, and they
are described in the trade as so
many handkerchiefs. Rex v. Nibbs,
1 M. C. C. 25.
Li an indictment for receiving
stolen tin, ingots of tin are properl}'
described as so many pounds weight
of tin. Reg, v. Mansfield, Car. &
M. 140; 5 Jur. 661— Coleridge.
So it would be proper to describe
a bar of iron as so many pounds of
iron. Ih,
An indictment for stealing " three
eggs of the value of twopence, of
the goods and chattels of o. H.," is
bad, for not stating the species of
eggs, because it does not shew that
the eggs stolen might not be such
as are not the subject of larceny.
Reg, V. Cox, 1 C. & K. 494— Tin-
dal.
An indictment describing the
property stolen as " one ham, of the
value of 10^., of the goods and chat-
tels of T. H.", is sulficient, as the
word " ham " has acauired a mean-
ing which is universally understood ;
and it is no objection, that it may
be taken to mean the ham of an an-
imal ferse naturse or of a base na-
ture, inasmuch as the fiesh of a dead
animal feras naturae is the subject of
larceny, and the expenditure of la-
bour on the flesh or the skin of an-
imals of a base nature, at common
law, imparts to its value, and makes
it also the subject of larceny. Reg. v.
GaUears, 3 New Se^ Cap. 704 ; 1
Den. C. C. 501 ; 2 C. & K. 981 ;T.
& M. 196 ; 13 Jur. 1010 ; 19 L J.,
M. C. 13.
Animals,'] — In cases of larceny of
animals ferse naturae, the indictment
must shew that they were either
dead, tame, or confined, otherwise
they must be presumed to be in
their original state. Rex v. Rou^
2 East, P. C. 607. And seeiZav.
Hudson, 2 East, P. C. 611.
And it is not sufiicient to add,
" of the goods and chattels " of such
an one. Rex v. Rough, 2 East, P.
C. 607.
An indictment for stealing a dead
animal should state that it was
dead ; for upon a general statement
that a party stole the animal, it is
to be intended that he stole it aUre.
Rex V. Edwards, R. & K C. C.
497 — Holroyd.
Upon an mdictment for stealing
a live animal, evidence cannot ft
given of stealing a dead one. /i.
But in Rex v. Puckering, 1 M C.
C. 242, A. was indicted for receiv-
ing a lamb ; when he received the
lamb it was dead, and it was held
that the indictment was sufficient,
it being immaterial, as to the pris-
oner's offence, whether the lamh
was alive or dead, his oifence, and
the punishment for it, being in both
cases the same. This case appears
to oven'ule Rex v. Edwards, R. &
R. C. C. 497.
An indictment for stealing fow
live tame turkeys was laid in the
county of H. ; it appeared that the
prisoner stole them alive in the
county of C. and killed them there,
STEALING AND RECEIVING.
301
and then brought them into the
county of H. : — Held, that as the
prisoner had not the turkeys in a
live state in the county of H., the
chaise as laid was not proved, and
that the word " live " in the de-
scription could not be rejected as
surplnsage, and therefore that the
indictment was bad. JRex v. HaUo-
my, 1 C. (fe P. 128— Hullock.
An indictment charged the pris-
oner with having feloniously stolen
four tame pigeons : — Held, that the
word " tame " sufficiently shewed
that they were reclaimed, and that
such tame and reclaimed pigeons
are the subjects of larceny, notwith-
standing that they have the means
of ingress and egress at pleasure.
Heg.w Cheafor, 2 Den. C. C. 361 ;
T. & M. 621 ; 15 Jur. 1065 ; 21 L.
J., xM. C. 43 ; 5 Cox, C. C. 367.
(b) Stealing and Receiving.
By 24 & 25 Vict. c. 96, s. 92, " in
" any indictment containing a charge
** of feloniously stealing any prop-
"erty, it shall be lawful to add a
" count or several counts for felon-
" iously receiving the same or any
" part or parts thereof, knowing the
"same to have been stolen, and in
" any indictment for feloniously re-
" oei\'ing any property knowing it
**to have been stolen, it shall be
"lawful to add a count for felon-
" iously stealing the same ;"
" And where any such indictment
"shall have been preferred and
"found against any person, the
" prosecutor shall not be put to his
"election, but it shall be lawful for
" the jury who shall try the same to
" find a verdict of guilty, either of
"stealing the property, or of receiv-
" ing the same, or any part or parts
" thereof, knowing the same to have
" been stolen ;
"And if such indictment shall
"have been preferred and found
"against two or more persons, it
"shall be lawful for the jury who
" shall try the same to find all or
" any of the said persons guilty eith-
" er of stealing the property or of
" receiving the same, or any part
" or parts thereof, knowing the
" same to have been stolen, or to
" find one or more of the said per-
" sons guilty of stealing the proper-
" ty, and the other or othei-s of them
" guilty of receiving the Fame or any
'* part or parts thereof knowing the
" same to have been stolen." (For-
mer provisions^ 11 & 12 Vict. c. 46,
s. 3; 14 & 15 Vict. c. 100, s. 14.)
By s. 93, " whenever any proper-
" ty whatsoever shall have been
" stolen, taken, extorted, obtained,
"embezzled or otherwise disposed
" of in such a manner as to amount
" to a felony, either at common law
" or by virtue of this act, any num-
" ber of receivers at difterent times
" of such property, or of any part
" or parts thereof, may be charged
"with substantive felonies in the
"same indictment, and may be
" tried together, notwithstanding
" that the principal felon shall not
" be included in the same indict-
" ment, or shall not be in custody
" or amenable to justice." (Former
provision^ 14 & 15 Vict., c. 100 s.
15.)
Where a count for feloniously re-
ceiving property knowing it to be
stolen is joined vnth a count for fel-
oniously stealing, it must appear
with sufficient certaintv that the
property is the same in each count.
Reg, V. Sarsjield^ 6 Cox, C. C. 12.
In indictments under 11 & 12
Vict. c. 46, s. 3, there may be as
many counts charging a felonious
receiving as there are counts charg-
ing stealmg ; and the prosecutor can-
not be put to his election on what
count or counts he will proceed.
Reg, V. Beet07i, 1 Den. C. C. 414 ; T.
& M. 87 ; 2 C. & K. 960 ; 4 New
Sess. Cas. 60 ; 13 Jur. 394 ; 18 L. J.,
M. C. 117; 3 Cox, C. C. 451.
Where a person is charged in two
counts with stealing and receiving,
the jury may return a verdict of
guilty on the latter count, if war-
ranted by the evidence, although
302
LARCENY AND RECEIVERS.
the evidence is also consistent with
the prisoner having been a principal
in the second degree in the stealing.
Reg, V. Hilton, Bell, C. C. 20 ; 5 Jnr.,
N. S. 47 ; 28 L. J., M. C. 28 ; 7 W.
R. 59; 32L.T. 151.
A count for stealing articles may
not be joined with a count for re-
ceiving those and other articles,
knowing them to have been stolen.
Reg. V. Ward,2¥, & F. 19-Willes.
A first count charged the prison-
er with stealing certain goods and
chattels, and a second count charg-
ed him with receiving " the goods
and chattels aforesaid, of the value
aforesaid, so as aforesaid stolen."
After objection that he could not
be found to have feloniously receiv-
ed goods stolen by himself the case
went to the jury, and he was ac-
quitted upon the first count and
convicted upon the second : — Held,
that the conviction was good. Reg.
V. Huntley, Bell, C. C. 238 ; 8 Cox,
C. C. 260 ; 6 Jur., N. S. 80 ; 29 L.
J., M. C. 170 ; 8 W. R. 183 ; 1 L.
T., K S. 384.
A count for receiving stolen
goods in a different county from
that in which the trial takes place,
coupled with other counts for the
larceny, under the 11 & 1 2 Vict. c.
46, must, by distinct and express
averments, shew upon the face of
it jurisdiction within the 7 & 8 Geo.
4, c. 29, s. 56. Reg. v. Martin, 3
New Sess. Cas. 575 ; T. & M. 78 ;
1 Den. C. C. 398 ; 2 C. ife K. 950 ;
13 Jur. 368 ; 18 L. J., M. C. 137.
A receiver mav be indicted for
receiving goods stolen by persons
unknown. Rex v. l^homas, 2 East,
P. C. 781 ; 8. P., Rex v. Baxter.
2 East, P. C. 781 ; 5 T. R. 83 ; 2
Leach, C. C. 578.
A receiver, in the case of a sheep
feloniously stolen alive and killed,
should be stated to have received
mutton. Rex v. Cowell, 2 East, P.
C. 617.
An indictment against a receiver
of stolen goods must aver the guilty
knowledge, which is the gist of the
offence, correctly. Rex v. Ktrnmi,
2 Russ. C. & M. 562— Bavlev.
A count for a substantive felony
in receiving stolen goods, which
charged that the goods were stolen
by " a certain evil-disposed person,"
is good. Rex v. Jervis, 6 CAP.
156— Tindal. '
To bring a case of receiving with-
in 7 & 8 Geo. 4, c. 29, s. 55, the in-
dictment must allecre the sfoods to
have been obtained by false pre-
tences and known to have been so.
It is not enough to allege them to
have been "unlawfully obtained,
taken and carried away." Reg. v.
Wilson, 2 M. C. C. 52.
An indictment for receiving stolen
goods alleged that the prl^ODer re-
ceived the goods of A., " he, the
said A., then knowing them to have
been stolen." After a verdict of
guilty, the counsel moved an arrest
of judgment, on the ground that
the scienter was omitted; but the
quarter sessions amended tJie indict-
ment by striking out "A.," and
substituting the name of the pris-
oner ; — Held, first, that it was had
as originally framed. Reg. v. Lor-
kin. Dears. C. C. 365 ; 2 C. L R.
775 ; 18 Jur. 539 ; 23 L. J., M. C.
125.
Held, secondly, that the objection
was taken at the proper time. Ih»
Held, thirdly, that the indictment
was not amendable after verdict
lb.
On an indictment for stealing and
receiving a mixture, it appeared
that the thief had stolen two sorts
of grain, and mixed them and sold
them to the prisoner : — Held, that
the latter could not be convicted on
such indictment. Reg. v. Robinsw,
4 F. & F. 43— Pollock.
Where a prisoner was indicted for
stealing goods, and in a subsequent
count for receiving the goods, " so
as aforesaid feloniously stolen," and
the jury acquitted of the stealing
and convicted of the receiving, the
conviction was afiirmed upon a case
reserved upon a motion in arrest of
JURISDICTION TO TRY.
303
judgment. Reg, v. Oraddock, T. &
M. 361 ; 2 Den. C. C. 81 ; 14 Jur.
1031 ; 20 L. J., M. C. 31 ; 4 Cox, C.
C. 409.
Where the receiving is so laid, the
jodge shoald direct the jury to ac-
Suit upon the count for receiving, if
ley should not find the prisoner
guilty of stealing. lb,
21. Jurisdiction to try,
iStefl&n^F.]— By 24 & 25 Vict. c. 96,
8.114, "if any person shall have in
^ his possession in any one part of the
^ United Kingdom any chattel , mon-
" ey, valuable security or other prop-
"erty whatsoever, which he shall
"have stolen or otherwise felonious-
" ly taken in any other part of the
"United Kingdom, he may be dealt
" with, indicted, tried and punished
"for larceny or theft in that part of
"Ae United Kingdom where he
" shall 80 have such property, in the
" same manner as if be had actually
" stolen or taken it in that part ; and
"if any person in any one part of the
"United Kingdom shall receive or
" have any chattel, money, valuable
" security or other property whatso-
" ever which shall have been stolen or
" otherwise feloniousl v taken in any
" other part of the United Kingdom ,
"such person knowing such proper-
" ty to have been stolen or otherwise
"feloniously taken, he may be dealt
" with, indicted, tried and punished
" for such offence in that part of the
"United Kingdom where he shall
" so receive or have such property,
"in the same manner as if it had
" heen originally stolen or taken in
"that part." (Former provision^ 7
A 8 Geo. 4, c. 29, s. 76.)
By 18 & 19 Vict. c. 126, " just-
" ices at petty sessions may try and
"convict in a summary way per-
"sons charged with having com-
" mltted ample larceny, where the
" value of the whole of the property
"alleg:ed to have been stolen does
" not, in the judgment of the just-
"ices, exceed 5<., or with having
" attempted to commit larceny from
" the person, or simple larceny."
Larceny must be tried in the
countv where committed : but the
offence is considered as committed
in every county into which the
thief carries the goods. Eex v.
Thompson, 2 Russ. C. & M. 328.
If a man steals goods in one
county, and carries them into an-
other, it will be larceny in the lat-
ter, though the goods are not car-
ried into the latter county until
long after the original theft. JRex
V. Parkin, 1 M. C. C. 45.
If a parish is partly situate in the
county of W., and partly in the
county of S., it is sufficient, in an
indictment for larceny, to state the
offence to have been committed at
the parish of H., in the county of
W. jRex V. Perkins, 4 C. & R 363
—Park.
The court of quarter sessions has
jurisdiction to try cases of larceny
committed on the high seas where
the offender is apprehended within
the jurisdiction of such court. Heg,
V, Peel, L. & C. C. C. 231 ; 9 Cox,
C. C. 220 ; 32 L. J., M. C. 65 ; 8
Jur., K S. 1185; 11 W. R. 40 ; 7
L. T., N. S. 336.
The prisoner stole a watch at
Liverpool, and sent it by railway
to a confederate in London : — Held,
that the constnictive possession still
remained in the prisoner, and that
he was triable at the JVliddlesex
sessions. JReg, v. Rogers, 1 L. R.
C. C. 136 ; 18 L. T., N. S. 414 ; 16
W. R. 733 ; 37 L. J., M. C. 83 ; 11
Cox, C. C. 38.
A person had stolen goods in
Guernsey and brought them to
England, where he w^as taken and
committed for trial : — Held, that,
Guernsey not being a part of the
United Kingdom, ne could not be
convicted of larceny, for having
them in his possession here, nor of
receiving in England the goods so
stolen in Guernsey. Reg, v. De-
bruiel, 11 Cox, C. C. 207— Byles.
304
LARCENY AND RECEIVERS.
U
a
Receiving,'] — By 24 & 25 Vict c.
96, s. 96, " whosoever shall receive
"any chattel, money, valuable se-
" curity or other property whatso-
" ever, knowing the same to have
"been feloniously or unlawfully
" stolen, taken, obtained, converted
" or disposed of, may, whether
" charged as an accessory after the
" fact to the felony, or with a sub-
"stantive felony, or with a'misde-
" meanor only, be dealt with, in-
" dieted, tried and punished in any
" county or place, in which he shall
" have or shall have had any such
"property in his possession, or in
" any county or place in which the
" party guilty of the principal fel-
" ony or misdemeanor may by law
" be tried, in the same manner as
" such receiver may be dealt with,
indicted, tried and punished in the
county or place where he actually
" received such property." {Former
enactment y 7 & 8 Geo. 4, c. 29, s.
56.)
The half of a bank note, which
had been stolen during its transit
through the post-office from S. in
Wiltshire to Bristol, was afterwards
inclosed by the prisoner in a letter
addressed to the bankers at S., re-
questing payment of it. This letter
was posted by the prisoner at Bath,
and arrived with its contents in due
course at S. There was no other
evidence of any receipt or posses-
sion by the prisoner in Wiltshire : —
Held, upon an indictment for receiv-
ing the stolen half note, that he was
rightly tried in Wiltshire, as the
possession of the post-office servants,
or of tlie bankers in Wiltshire, was
his possession, and the case therefore
was within 7 & 8 Geo. 4, c. 29, s.
56. Reg, v. Oryer^ Dears. <& B. C.
C. 324 ; 3 Jur., N. S. 698 ; 26 L. J.,
M. C. 192.
Within Admiralty Jurisdiction,^
—By 24 & 25 Vict. c. 96, s. 115,
" all indictable offisnces mentioned
"in the act which shall be com-
" mitted within the jurisdiction of
((
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ii
u
((
((
((
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«
u
u
u
u
((
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u
the Admiralty of England or Ire-
land shall be deemed to be offences
of the same nature, and liable to
the same punishments, as if they
had been committed upon the land
in England or Ireland, and may
be dealt with, inquired of, tried
and determined in any county or
place in which the offender diall
be apprehended or be in custody ;
and m any indictment for any such
offence, or for being an accessory
to any such offence, the venue in
the margin shall be the same as if
the offence had been committed in
such county or place, and the of-
fence itself shall beaveiTed toha\'e
been committed * on the high seas':
provided, that nothing herein con-
tained shall alter or affect any of
the laws relating to the eovem-
ment of her Majesty's land or na-
val forces."
22. Evidence,
Stealing,^ — A statement made by
a prisoner before suspicion attaches
to him, and before search made, in
order to account for his possession
of property, which he is afterwards
charged with having stolen, is ad-
missible as evidence for him. Reg.
V. Abraham, 2 C. <fc K. 550— AI-
derson.
Where a prisoner charged with
larceny has given two di^rent ac
counts of the way in which he be-
came possessed of the stolen proper-
ty, it is not incumbent on the pros-
ecutor to call as witnesses persons
whom, in one of the statements, he
says could prove his innocence, witi
a view of disproving that statement,
but it may be prudent in the prose-
cutor to have these persons m at-
tendance at the trial, though he
does not call them, to avoid the ef-
fect of the observations by the pris-
oner or his counsel that these persons
could prove the prisoner's innocence,
but that he has not the means of
procuring their attendance. Reg,
V. DiUey, 2 C. <fc K. 818— Piatt.
Neither upon an indictment for
EVIDENCE.
805
stealing nor receiving can evidence
be given that the prisoner had at
the time, or previously, other stolen
goods in his pof^session. lieq, v.
Oddy, T. & M 593 ; 2 Den. C. C.
264 ; 20 L. J., M. C. 108 ; 5 Cox, C.
0.210.
Where a person stole two pigs
belonging to the same person at
the Fame time, and after being con-
yicted and punished for stealing one
of the pigs, was indicted at a subse-
quent aswsize for stealing the other :
—Held, that this might legally be
done; but semble, that, in such a
case, the second prosecution ought
not to be proceeded with. Reg, v.
BrOtdl, Car. & M. 609--Cresswell.
A prisoner was indicted for steal-
ing tnree articles. Having taken
the first article, he returned m about
two minutes, and took the second,
and then returned in half an . hour
and took the third : — Held, that the
last taking was a distinct felony,
and could not be given in evidence
with the other two ; but, that the
intenral qf time between the first
and second taking was so short,
that they must be considered as
parts of the same transaction. Rex
r. Birdgeyey 4 C. & P. 386— Little-
dale.
A. went to the shop of B., and
asked for shawls for Mrs. D. to look
at ; B. gave her five, she pawned
two, and three were found at her
lodgings. Mrs. D. was not called
as a witness : — Held, that A. could
not be convicted of a larceny in
stealing the goods of B. Rex v.
Savage^ 5 C. A P. 143 — Patteson.
W. was indicted for larceny for
stealing six pounds of brass from a
foundry. The only suggested evi-
dence offered at the trial was, that
the prisoner, who was employed
upon the premises, - had been seen
to come into the place where the
brass was kept : — Held, that there
was not a scintilla of evidence to
go to the jury. Reg. v. Walker,
Dears. C. C. 280.
Two prisoners were charged with
Fish. Dig.— 23.
stealing four i^acks of barley and
three sack bags from their master.
The prisoners and B. were employ-
ed by the prosecutor to winnow bar-
ley, which he had mixed with, cana-
ry seed. One of the prisoners
fetched several sacks from the pros-
ecutor's house, which he and B.
filled with barley. The two prison-
ers then sent B. home befpre the usu-
al time. At twelve o'clock on the
night of the same day, the carter
went into the stable with a lantern,
and shortly afterwards the prison-
ers entered the stable. In a few
minutes after this the prosecutor
saw the carter in the loft above
with a lantern, and found the pris-
oners concealed under straw in the
loft, and then in a dust-bin in a sta-
ble beneath he found three racks
full of barley mixed with canary
seed, which he swore was of the
same kind which he had mixed. It
was no part of the duty of the pris-
oners to place the barley in sacks
or to piit the sacks of barley into
the dust-bin. The jury found both
the prisoners guilty : — Held, that the
evidence was sufficient to support
the conviction. Reg, v. Samways,
Dears. C. C. 371.
Though no portion of the prose-
cutor's ^oods has been missed, it is
a question for the jury, under all
the cir(5umstancesof the case, wheth-
er the goods, which are the subject
of the indictment, are his property.
Reg, V. Hooper, 1 F, <fc F. 85—
Willes.
Upon the trial of an indictment
for larceny, if the circumstantial
evidence satisfies the jury of the
guilt of the prisoner, he may be con-
victed, though the prosecutor is un-
able to swear that he has lost the
thing charged to have been stolen.
Reg. V. Burtm, 6 Cox, C. C. 293 ;
23 L. J., M. C. 52.
Prodiustion of Artide Stokn,] —
On an indictment against A. and
B., for burglary, one of the articles
stolen (the only one directly proved
S06
LAROEiTY AND RECEIVERS.
to have been in the possession of
either of them) being a ring, which
was dcFcribed particularly by the
prosecutor, and proved to have had
an inscription upon it, and to have
been just like one he produced;
and one of the prisoners being
proved to have shewn, soon after
the burglary, a ring which was
proved to have been just like that
produced, and to have had an in-
scription upon it, but no notice to
produce which had been given : —
Held, that the contents of the in-
scription on the prosecutor's ring
could not be proved, and that, as
there had been no notice siven to
the prisoner to produce the ring
shewn by him to the witness, the
contents of the inscription upon it
oould not be proved. Reg. v. Farr,
4 F. & F. 336— Channell.
On an indictment for the larceny
of a bill of exchange obtained from
the prosecutor, imder a pretence of
dlFcounting it, parol evidence fti the
bill niay be given after proof of a
subpoena duces tecum given to the
person in whose possession it was
shewn to be previously to the trial,
but who did not attend. Rex v.
Aickles, 1 Leach, C. C. 294 ; 2 East,
P. C. 675.
Of Receiving,'] — IS the prisoner
:at different times receives propertv
stolen from the prosecutor, although
the substantive charge must be con-
fined to some one receiving, yet the
other receivings may be given in
evidence to shew a guilty knowl-
edge that the goods were stolen.
Rex v. Ihmny Car. C. L. 132 ; 1 M.
C. C. 146.
A prisoner was indicted for re-
ceiving stolen goods, knowing them
to have been stolen ; to prove the
scienter, evidence was given, that
on a previous occasion other stolen
goods, the property of different own-
ers, had been found in the posses-
sion of the prisoner: — ^Held, that
the evidence was improperly ad-
mitted, as it is a general priiicLid.e
of the law of England, that proof
that a man had committed one of.
fence is no proof that he has com^
mitted anotner, and as the posBes-
sion of stolen goods on a previooi
occasion could not shew any knovl
edge on the part of the prisoner
that the particular goods mentioned
in the mdictment were Ftolen.
Reg. V. Oddy, 2 Den. C. C. 264 ; 15
Jur. 517; 20 L. J., M. C. 108; 5
Cox, C.C. 210.
If an indictment asainst a reoeiT-
er states the principal felony to h&?e
been committed by A., whatever
would have been evidence of the
principal felony to convict A, is re-
ceivable to prove this allegation cd
the trial of the receiver, but is not
conclusive. Rex v. EUck^ 4 C. A
P. 377— Bosanquet
In an indictment for reooving
stolen goods, knowing them to have
been stolen by a person named, the
stealing by the person must be pror-
ed, or the receiver must be aoqoit-
ted. Rex v. Woolford^ 1 M. & Kok
384— Patteson.
Stolen property being found coo-
cealed in an old engine-house, aud it
being watched, the prisoners were
taking it away : — Held, that, to war-
rant the conviction of the prisoners on
an indictment charging them as re-
ceivers, the jury must be satisfied tiiat
the property had been stolen by
some other person to the knowledge
of the prisoners, and that tbeie
should be some evidence to sbev
that such was the case. Rex v.
Demley, 6 C. & P. 399— P^ttewa
A prisoner was to be tried oo
three indictments : for receiviDg stol-
em tin, for stealing i^^on, aiM ^
receiving stolen brass. A constable
went with a search-warrant to search
the prisoner's premises for stolei
iron, and, having read the warrant
to the prisoner, the latter made a
statement : — ^Held, on the trial of
the first indictment, that the whde
of the statement was receivable, al-
though part of it related to the
charge respecting the iron ; and al-
RESTITUTION AND RECOVERY.
807
«o, that evidence might be given,
that, at the time of the search, the
prisoaer endeavored to conceal some
Dra9, and also, that almost imme-
diately after he \^as taken away
horn the premises, at the conclusion
of the search, his wife carried some
tb under her cloak from a ware-
house on the premises. Heg, v.
Moin$field, Car. & It 140— Coler-
idge.
On an indictment against A. for
stealing, and B. for receiving goods,
evidence that on various former oc-
casions portions of the commodity
stolen have been missed, and that
the prisoners have, after such occa-
sions, been found selling such a com-
modity ; and that on the last occa-
sion it was part of what was stolen,
is sufficient to fix the receiver with
a guilty knowledge. Reg, v. Nich-
flfii, 1 F. & F. 51— Cockbum.
To justify a conviction for receiv-
ing stolen property in the case of
goods found, it is not sufficient to
mew that the prisoner had a gener-
al knowledge of the circumstances
under which the goods were taken,
unless the jury is also satisfied that
be knew that the circumstances
vere sach as constituted a larceny.
Reg. V. Adams, 1 F. & F. 86—
Crowder.
An admission of his guilt, made
by the thief while in custody, in the
presence of the receiver, is evidence
s^ainst the receiver. Reg. v. Goxy
1 P. «fc F. 90— Crowder.
In an indictment for receiving
goods, knowing them to have been
stolen, belief without actual knowl-
edge is sufficient to sustain it.
B^. V. White, 1 F. A F. 665—
Bramwell.
In an indictment for receiving
goods knowing them to be stolen,
eridenoe that the thief had at one
tune been lawfully employed to
sell such articles to the prisoner,
wiU warrant an acquittal in the ab-
sence of any evidence that the pris-
oner Imew that the authority had
been withdrawn. Reg. v. Wood, 1
F. & F. 497— Martin.
The prisoner had been a lodger
in the prosecutor's house, and left
under circumstances not disclosed.'
On the following day the prosecu-
tor's wife also left the house, taking
with her a small bundle. Two days
after the prisoner was found in com-
pany with the prosecutor's wife
(who was passing by the prisoner's
name) on board a ship bound for
Quebec. Property belonging to
the prosecutor, of a bulk greater
than could have been comprised in
the bundle taken by the wife, was
found in the prisoner's cabin and
upon his person : — Held, that there
was. some evidence to support a con-
viction for receiving the property,
knowing it to have been stolen.
Reg. V. Deer, L. & C. 240 ; 9 Cox,
C. C. 225 ; 8 Jur., N. S. 1216 ; 32
L.J.,M.C. 33; 11 W. R. 43; 7
L. %, N. S. 366.
On an indictment for feloniously
receiving goods, knowing them to
have been stolen, it is unsafe to con-
vict a party as receiver on the evi-
dence of the thief, unless it is con-
firmed. Reg, V. Robinson, 4 F. A
F. 43— Pollock.
On an indictment for receiving
goods, knowing them to have been
stolen, the mere fact that they were
found on the prisoner's premises is
not sufiicient to confirm the evidence
of the thief, so far as to make it
proper to convict. Reg. v. Pratt,
4 F. A F. 815— Pollock.
23. Punishment.
(24 & 25 Vict. c. 96, w. 7, 8, 9, 98,
99.)
24. Restitution and Recovery of StoU
en Property.
Restitution,]— Bj 24 A 25 Vict,
c. 96, s. 100, " if any person guilty
*' of any such felony or misdemean-
^^ or as is mentioned in the act, in
" stealing, takmg, obtaining, ex-
808
LARCENY AND RECEIVERS.
" torting, embezzling, converting
' ' or disposing of, or in knowingly
" receiving, any chattel, money,
" valuable security, or other prop-
" erty whatsoever, shall be indicted
" for such offence, by or on the be-
" half of the owner of the property,
" or his executor or administrator,
" and convicted thereof, in such
" case the property shall be restored
" to the owner or his representative ;
" and in every case in this section
" aforesaid, the court before whom
" any person shall be tried for any
" such felony or misdemeanor, shall
" have power to award, from time
" to time, writs of restitution for
" the said property, or to order the
" the restitution thereof in a sum-
" mary manner : provided that if it
" shall appear, before any award or
" order made, that any valuable se-
" cuiity shall have been bon& fide
" paid or discharged by some per-
" son or body corporate liaise to
" the payment thereof, or being a
'^ negotiable instrument, shall have
" been bonsl fide taken or received
by transfer or delivery, by some
person or body corporate for a
^'just and valuable consideration,
" without any notice, or without
" any reasonable cause to suspect
" that the same had by any felony
" or misdemeanor been stolen, taken,
" obtained, extorted, embezzled, con-
" verted or disposed of, in such
" case the court shall not award or
" order Jthe restitution of such secu-
" rity ; provided also, that nothing
^^ in this section contained shall ap-
" ply to the case of any prosecution
" of any trustee, banker, merchant,
" attomev, factor, broker, or other
" agent mtrusted with the posses-
" sion of goods, or documents of ti-
" tie to goods, for any misdemean-
" or against this act." {Former
provision^ 7 & 8 Geo. 4, c. 29, s.
57.)
By 80 & 31 Vict. c. 35, b. 9,
" where any prisoner shall be con-
" victed, either summarily or other-
" wise, of larceny or other offence
*' which includes the stealing of any
" property, and it shall appear to
'^ the court by the evidence that the
'^ prisoner has sold the stolen prop-
'* erty to any person, and that such
'^ person has had no knowledge that
^^ tife same was stolen, and that any
" monies have been taken from the
" prisofter on his apprehensioD, it
" shall be lawful for the court, om
" the application of such purchaser,
'^ and on the restoration of the stol-
" en property to the prosecutor, to
" order that out of such momes a
" sum not exceeding: the amount of
'^ the proceeds of such sale be de-
" livered to the purchaser."
7 & 8 Geo. 4, c. 29, repealed 4
Geo. 4, c. 11, except- as to piracy,
and 9 G^o. 4, c. 81, wholly repealtl
Geo. 4, c. 115.
The 21 Hen. 8, c. 11, which re-
stored goods to a prosecutor en con-
viction of the person who took them
away, extend«i only to a felonionB
and not to a fraudulent takii^.
Hex V. De Veaux] 2 Leach, C. C.
585 ; 2 East, P. C. 789, 839.
Where a prisoner pleaded gnilty
to several indictments chaining him
with larceny, and an application
was made on the part of the prose-
cutor for an order for restitudon,
the court consented to hear counsel
on behalf of those who were in pos-
session of the goods, and a^inst
whom the order, if made, would op-
erate. Beg. V. Macklitiy 5 Cox, C.
C. 216 — Alderson and Martin.
Where, under such circumstaD-
ces, the depositions taken before the
magistrate disclosed a clear case of
felony, the court declined to orier
a writ of restitution to issue on the
suggestion of the holders of the
goods that the prisoner was an
agent, and therefore that the fraud-
ulent dealing with the goods on his
part did not constitute a felony, hat
the court made the common order
for restitution. lb.
The court cannot, under the 7 &
8 Geo. 4, c. 29, s. 57, order a Bank
of England note which has been
RESTITUTION AND RECOVERY.
309
paid and cancelled, to be delivered
up to the prosecutor of an indict-
ment against the party who stole
it BexY. Stanton, 7 C. & P. 481.
By 7 & 8 Geo. 4, c. 29, b. 57, the
property in a stolen chattel revests
in the owner on the convictioti of
the thief, and the owner may main-
tain trover for it, though there has
been no order for restitution . Scatter,
goody. Syipester, 15 Q, B. 506.
A. & B. were convicted of steal-
ing the goods of C. ; D., before they
were convicted, acquired a title to
the goods by making an advance
of money bon& fide, to A., who was
the servant and agent of C, and
had established his title to the goods
in trover brought against him for
their recovery oy C. : — Held, that,
notwithstanding the title had been
acquired under 5 & 6 Vict. c. 39,
by D., the goods on the conviction
of A. and 6. revested in C, and the
ooart ordered them to be restored.
Seg. V. WoUez, in re Hart, 8 Cox,
C, C. 337— Kerr, Com., C. C. C.
The order' not being obeyed, a
role was obtained calling upon D. to
shew cause why he should not be
attached for contempt, and a cross
role was obtained calling upon the
prosecutor to shew cause why the
order of restitution should not be re-
manded; the court made the rule
absolute for an attachment. Ih.
The court of Queen's Bench has
at common law no jurisdiction to
issue a writ of restitution except as
part of the judgment on an appeal
of larceny ; and 21 Hen. 8, c. 11,
and 24 &' 25 Vict. c. 96, s. 100,
only confer this jurisdiction on the
court before whom the felon has
been convicted. Where, therefore,
* person has been convicted of
housebreaking and larceny before
the Central Ciiminal Court, the
court of Queen's Bench has no pow-
er to award a writ of restitution of
the proceeds of the larceny. Reg,
V. London (Mayor, 4rc.), 4 L. R., Q.
B. 371 ; 17 W. R. 722 ; S, C. nom.
Walker v. London {Mayor, S^c), 11
Cox, C. C. 280 ; 20 L. T., N. S.
C04 ; 88 L. J., M. C. 107.
Taking or advertising Rewards
for return of Stolen Property.'] — By
8. 101, "whosoever shall corruptly
" take any money or reward, direct-
" ly or indirectly, under pretence or
" upon account* of helping any per-
" son to any chattel, money, valua-
" ble security, or other property
" whatsoever, which shall, by any
" felony or misdemeanor, have been
" stolen, taken, obtained, extorted,
" embezzled, converted or disposed
" of, as in this act before mentioned,
" shall (unless he shall have used all
" due diligence to cause the oiTender
" to be brought to trial for the
" same) be guilty of felony, and be-
•' ing convicted thereof shall be
" liable, at the discretion of the
" court, to be kept in penal servi-
" tude for any term not exceeding
" se^^en years and not less than five
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not
" exceeding two years, with or with-
" out hard labor, and with or with-
" out solitary coniinement ; and, if a
" male under the age of eighteen
" years, with or without whipping."
(Former provision, 7 & 8 Geo. 4, c.
29, s. 58. By 1 &% Geo. 4, c. 27,
the 21 Hen. 8, c. 11, was wholly re-
pealed.
It was an offence within 4 G^o. 1,
c. 1 1, 8. 4, to take money under pre-
tence of helping a man to goods
stolen from him, though the pris-
oner had no acquaintance with the
felon, and did not pretend that he
had, and though he had no power to
apprehend the felon, and though the
goods were never restored, and the
prisoner had not power to restore
them. Rex v. Ledbitter, 1 M. C. C.
76.
By s. 102, " whosoever shall pub-
" licly advertise a reward for the re-
" turn of any property whatsoever,
" which shall have been stolen or
" lost, and shall in such advertisc-
" ment use any words purporting
810
MALICIOUS INJURY.
" that no questions will be asked, or
^^ shall malce use of any words in
" any public advertisement purport-
" ing that a reward will be given or
" paid for any property which shall
" have been stolen or lost, without
^' seizing or making any inquiry after
" the person producing such prop-
" erty, or shall promise or ofler in
" any such public advertisement to
" return to any pawnbroker or other
" person who may have bought, or
" advanced money by way of loan
" upon, any property stolen or lost,
" the money so paid or advanced, or
" any other sum of money or reward
" for the return of such property, or
" shall print or publish any such
" advertisement, shall forfeit the sum
" of 50/. for every such offence, to
" any person who will sue for the
" same by action of debt, to be re-
" covered, with full costs of suit."
(Similar to fanner provision^ 7 & 8
Geo. 4, c. 29, s. 59.) »
On an indictment against A., for
corruptly and feloniously receiving
from B. money under pretence of
helping B. to recover goods before
then stolen from B., and for not
causing the thieves to be apprehend-
ed, three questions were left to the
jury : First, did A. mean to screen
the guilty parties, or to share the
money with them ? Second, did A.
know the thieves, and intend to as-
sist them in getting rid of the prop-
erty, by promising B. to buy it?
Third, did A. know the thieves, and
assist B., as her agent, and at her re-
quest, in endeavouring to purchase
tne stolen property from them, not
meaning to bring the thieves to jus-
tice ? The jury answered the first
question in the negative, aiid the
third in the affirmative: — Held, that
the receipt of the money under the
circumstances was a corrupt receiv-
ing of the money by A. Reg, v.
Pascoe, 4 New Sess. Gas. 66 ; 2 C.
A K. 927 ; 1 Den. C. C. 456 ; T. &
M. 141 ; 13 Jur. 544 ; 18 L. J., M.
C. 186.
XXI. Malicious Injury to Prop-
ERTY, Cattle and other Aif.
IMALS.
1 . Houses or Buifdings, by JeMiib,
310.
^ 2. Mawtfadwrts and Materialt, 910.
3. ifuchinenf, 313.
4. Jt//nes, 313.
5. Sf^ and River Banks, 315.
6. Ships and Sea SignaiSj 315.
7. Fish Ponds, 317.
8. TrH's, Shrvbs, Fences and Veg^
taf4'S,S\B,
9. Ilopbinds, 320.
10. Works of Art, Z20,
1 1 . Ltdictmenl, 32 1 .
12. A mounl of Injury, 32 1 .
13. Witnesses, 321.
14. Kiliiitg or Maiming Catdsvcdm
Animals, 322.
15. Bnilwnys and Teiegrofks -- Sti
XXX. Railways.
1. Houses or BvUdingSy by Ten-
ants.
By 24 & 25 Vict. c. 97, s. IS,
" whosoever, being possessed of any
^' dwelling-house or other building,
" or part of any dwelUng-honse
" or other building, held i<x tny
" term of years or other less tenn,
" or at M-ill, or held over after
^' the termination of any tenancy,
^^ shall unlawfully and raalicionsly
*' pull down or demoliiFO), or begin
'^ to pull down or demolish, the SMB6
" or any part thereof, or shall nn-
^^ lawfully and maliciously pull down
" or sever from the freehold anyfix-
'' ture being fixed in or to such
" dwelling-house or building, or part
" of such dwelling-house or build-
*' ing, shall be gmlty of a misde-
" meaner."
2. Mamifactures and Materials,
By 24 & 25 Vict. c. 97, s. 14,
whosoever shall unlawfully and
maliciously cut, break, or destroy,
or damage with intent to destroy
or to render useless, any goods or
article of silk, woolen, linen, cat^
ton, hair, mohair, or alpaca, or of
any one or more of those mat^
als mixed with each other or
mixed with any other material,
u
a
u
u
MANTJFACTCKES AND MATERIALS.
311
*^or any framework -knitted^ piece,
"stocking, hose, or lace, being in
" the loom or frame, or on any ma-
" chine or engine, or on the rack or
"tenters, or m any stage, process,
"or progress of manufacture, or
"shall unlaw&lly and maliciously
" cut, break, or destroy, or damage
" with intent to destroy or to render
" useless, any warp or shute of silk,
"woolen, linen, cotton, hair, mo-
" hair, or alpaca, or of any one or
"more of those materials mixed
" with each other or mixed with any
" other material, or shall unlawfully
" and maliciously cut,* break, or de-
"f*roy, or damage with intent to
"destroy or render useless, any
"loom, frame, machine, engine,
"rack, tackle, tool, or implement,
"whether fixed or moveable, pre-
" pared for or employed in carding,
*' Fpinnmg, throwing, weaving, full-
" iog, shearing, or otherwise manu-
"fiicturing or preparing any such
" goods or articles, or shall by force
** enter into any house, shop, build-
" ing, or place, with intent to com-
"mit any of the offences in this sec-
" tion mentioned, shall be guilty of
" felony, and being convicted there-
"of diall be liable, at the discretion
" of the court, to be kept in penal
" fiervitude for life, or for any term
" not less than ^ve years (27 & 28
"Vict. c. 47),- or to ba imprisoned
"for any term not exceeding two
" years, with or without hard labour,
" and with or without solitary con-
" iinement, and, if a male under the
" age of sixteen years, with or with-
" ont whipping." '{Jhreviaus enact-
ment, 7 & 8 Geo. 4, c. 80, s. 3.)
By 4 Geo. 4, c. 46, and 7 & 8
Geo. 4, c. 27, so much of 22 Geo. 3,
c. 40, 28 Geo. 8, c. 55, and 4 Geo.
4, c. 46, rekcting to this subjecty were
repealed; and 24^ & 25 Vict. c. 95,
8. \, repeals 7 & 8 Geo. 4, c. 30.
Goods remain in "a stage, pro-
cess, or progi-ess of manufacture,"
within 7 & 8 Geo. 4, c. 30, s. 3,
Aough the texture is complete, if
Uiey are not yet brought into a con-
dition fit for sale. Hex v. Wood-
heady 1 M. & Rob. 549 — Coleridge.
An indictment on 7 & 8 Geo. 4,
c. 30, s. 3, for feloniously damaging
warps of linen yam, with intent to
destroy or render them useless, need
not allege that the warps at the time
of the damage done were prepared
for or employed in carding, spin-
ning, weaving, &c., or otherwise
manufacturing or preparing any
goods or articles of silk, woolen,
unen, &c. JRex v. Ashton, 2 B. A
Ad. 750.
A warp not sized, but on its way
to the sizers to be sized to fit it for
being used in manufacturing goods,
is not a " warp in any stage, process
or progress of manufacture," or pre-
pared for or employed in carding,
spinning, &c., within 7 & 8 Geo. 4,
c. 30, s. 3, though the indictment is
not bad for not averring it to be 'so.
Heg. V. Clegg, 3 Cox, C. C. 295 —
Alderson.
The cords employed to raise the
harness or the working tools of a
loom, in order to move the shuttle
to and fro, constitute tackle em-
ployed in weaving, and, therefore,
cutting them was an offence within
7 & 8 Geo. 4, c. 30, s. 3. Beg. v.
Smith, 6 Cox, C.C. 198— Williams.
Under this statute, the malicious-
ly cutting such tackle is a complete
offence, and it is unnecessary to aver
or prove an intent to destroy or ren-
der it useless. lb,
QuaBre, whether cutting the thrum,
t. €., the ends of the woolen threads
generally left in the machine when
a piece of cloth is finished, for the
purpose of more readily adjusting
the succeeding work, is an offence
within the statute ? At all events,
it does not support a count for ma-
liciously cutting woolen warp ; but
the fact of cutting the thrum may
be given in evidence in support of a
count for cutting tackle, in order to
shew the animus of the latter act,
and that it was done maliciously.
lb.
The taking out and carrying away
312
±
MALICIOUS INJURY.
the piece of iron called the half-jack,
from a frame used for the making of
frame-work knitted stockings, was
a dama.ging the frame, within 28
Greo. 3, c. 55, s. 4, as it made the
frame impei^ect and inoperative, al-
though the part taken out was not
injured, and the replacing it would
again make the frame perfect. JRex
V. Tacet/, R. & R. C. C. 452.
The cutting or destroying part of
a loom was not within 22 Geo. 3, c.
40, 8. 1, although the charge in the
indictment was of an intent to cut
and destroy certain tools employed
in the woolen trade. Rex v. IRll,
R. & R. C. C. 483.
3. Machinery,
By 24 & 25 Vict. c. 97, s. 15,
" whosoever shall unlawfully and
" maliciously cut, break, or destroy,
" oT damage with intent to destroy
" or to render useless, any machine
" or engine, whether fixed or move-
" able, used or intended to be used
" for sowing, I'eaping, mowing,
"•threshing, plowing, or draining, or
" for performing any otlier agricul-
" tural operation, or any machine or
" engine, or any tool or implement,
" whether fixed or moveable, pre-
" pared for or employed in any man-
" ufacture whatsoever (except the
" manufacture of silk, woolen, linen,
" cotton, hair, mohair, or alpaca
" goods, .or goods of any one or
" more of those materials mixed
" with each other or mixed with any
" other material, or any framework-
" knitted piece, stocking, hose, or
"lace), shall be guilty of felony,
" and, being convicted thereof, shall
" be liable, at the discretion of the
" court, to be kept iu penal servi-
** tude for any term not exceeding
" seven years, and not less than five
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not
" exceeding two years, with or with-
" out hard labour, and with or with-
" out solitary confinement, and, if a
"male under the age of sixteen
" years, with or without whipping."
{Former enactmenU^ 7 4 8 Geo. 4,
c. 30, 6. 4, and 7 WilL 4 & 1 VicL
c. 90, B. 5.)
A person plugging up the feed-
pipe of a steam-engine, and dis-
placing other parts of the engine in
such a way as rendered it tempora-
rily useless, and would have caused
an explosion if the obstruction bad
not been discovered, and with some
labour removed, is guily of damag-
ing the engine, with' intent to refr
der it useless within 24 & 25 Vict
c. 97, s. 15. Reg. v. Fisher, 10
Cox, C. C. 146 ; 1 L. R., C. C. 7;
1 1 Jur., N. S. 983 ; 35 L. J., M. C.
57; 14 W. R. 58; 13 L.T.,N.&
380.
An indictment under 24 & 25
Vict. c. 97, s. 15, for damaging a
machine, with intent to destroy the
same, charging the ofiTence to hare
been committed " unlawfully and
maliciously," in the language of the
statute, but omitting the word felon-
iously, is bad, as the word feloni-
ously is a term of art and necessary
in all indictments for felony, whether
at common law or created by ^t-
ute. Heg. v. GVay, 9 CJox, C. G,
417 ; L. & C. 365 ; 10 Jur., N. S.
IGO ; 33 L. J., M. C. 78 ; 12 W.R
350 ; 9 L. T., N. S. 733.
Ploughs of the description com-
monly used in agriculture are ma-
chines within the statute. lb.
If a person has had a threshing-
machine taken to pieces, he expect-
ing a mob to come and destroy it,
and the mob comes and destroys the
different parts of the machine when
thus separated, this was a felony
within 7 <fc 8 Geo. 4, c. 30, & 4.
Eex V. Mackerel, 4 C. & P. 448-
Park, Bolland and Patteson.
A. had a threshing-machine woric-
ed by water, the water-^heel hav-
ing been put up for the sole purpose
of working this machine, and never
having been used for anything else;
A., fearing the destruction of the
machine bv a mob, took it down,
leaving the watei^wheel standing.
The prisoners broke the water-
MINES.
813
wheel :— Held, to be a felony, under
7 & 8 Geo. 4, e. 30, s. 4 ; and the
fact that A. sometimes worked the
threshing-machine by horses made
DO difference. Hex v. Fidler, 4 C.
& p. 449— Park, Bolland and Pat-
teson.
On an indictment for breaking a
threshing-machine, the jud^e al-
lowed a witness to be asked whether
the mob by whom the machine was
broken did not compel persons to go
with them, and then compel each
person to give one blow to the ma-
chine; and also whether, at the
time when the prisoner and himself
were forced to join the mob, they
did not agree together to run away
from the mob the first opportunity,
Eexy, Grutchley, 5 C. <& P. 133 —
Patteson.
Where the prisoner was indicted
for destroying a threshing-machine,
and it appeared that it had been
previously taken to pieces by the
owner, by separating the arms and
other parts of it, for the purpose of
placing it in safety, but with a view
to pat it together again, and it was
destroyed whilst in this disjointed
state; it was decided that the of-
fence was within 7 <fc 8 Geo. 4, c.
80, B. 4. Hex V. HtUchins, Deac.
C. L 1517— Park, Bolland and Pat-
teson.
Where certain side boards were
wantine to the machine at the time
it was destroyed, but which did not
render it so defective as to prevent
it altogether from working, though
it would not work so effectually as
if those boards had been made good :
~Held, that it was still a threshing-
machine within the meaning of the
statute. Hex v. Bardett^ Deac. C.
L 1517 — ^Vaughan, Parke and Al-
denton.
W'^here the owner removed a
wooden stage belonging to the
machine on which the man who fed
the machine was accustomed to
stand, and had also taken away the
1«^, and it appeared in evidence
that though th^ machine coT4d not
be conveniently worked without
some stage for the man to stand on,
yet that a chair or table, or a num-
ber of sheaves of com, would do
nearly as well, and that it could
also be worked without the legs ; it
was held, that the machuie was an
entire one within the act, notwith-
standing the stage and legs were
wanting. Rex v. Chubby Deac. C.
L. 1518 — Vaughan and Parke.
But where the prosecutor had not
only taken the machine to pieces,
but had broken the wheel of it, be-
fore the mob came to destroy it, for
fear of having it set on fire and en-
dangering his premises, and it was
proved that without the wheel the
engine could not be worked ; in
this case it was held, that the re-
maining parts of the machine, wliich
were destroyed by the mob, did not
constitute a threshing-machine with-
in the meaning of the statute. Rex
V. West, Deac. C. L. 1518— Alder-
son;
4. Mines,
Setting Fire <!o.]— By 24 & 25
Vict. c. 97, s. 26, " whosoever shall
" unlawful Iv and maliciously set fire.
" to any mine of coal, canuel coal,
" anthracite, or other mineral fuel,
" shall be guilty of felony, and be-
" ing convicted thereof shall be
" liable, at the discretion of the
" court, to be kept in penal servi-
" tude for life, or for any tenn not
" less than five years (27 & 28 Vict.
" c. 47), or to be imprisoned for any
"term not exceeding two years,
" with or without hard labour, and
" with or without solitary confine-
" ment, and, if a male under the
" age of sixteen years, with or wit\i-
" out whipping." (Former proms-
ion, 7 Will. 4 & 1 Vict. c. 89, s. 9.)
By s. 27, " whosoever shall un-
" lawfully and maliciously, by any
" overt act, attempt to set fire to
" any mine, under such circum-
" stances that if the mine were
" thereby set fire to, the offender
"would be guilty of felony, shall
314
MALICIOUS INJURY.
" be guilty of felony." (JPbrmer
provision^ 9 <& 10 Vict. c. 26, s. 7.)
Attempting Drovming.'] — By 6.
28, " whosoever shall unlawfully and
" maliciously cause any water to be
" conveyed or run into any mine, or
'' into any subterraneous passage
" communicating therewith, with iu-
" tent thei-eby to destroy or damage
" such mine, or to hinder or delay
" the working thereof, or shall with
"the like intent unlawfully and
" maliciously pull down, fill up, or
"obstruct, or damage with intent
" to destroy, obstruct, or render
"useless, any air-way, water-way,
" drain, pit, level, or shaft of or be-
" longing to any mine, shall be
"guilty of felony: provided that
" this provision shall not extend to
" any damage committed under-
" ground by any owner of any ad-
" joining mine in working the same,
" or by any person duly employed
" in such working." (Fonner pro-
viaio9ij 7 <fc 8 Geo. 4, c. 30, s. G.)
If A. and B. were the owners of
adjoining mines, and A., asserting
that a certain airway balonged to
him, directed his workmen to stop
it up, and they, acting bon& fide,
and believing that A. liad a right
to give such an order, do so, they
were not guilty of felony within the
7 & 8 Geo. 4, c. 30, s. 6, for stop-
ping up the air-way of a mine, even
though A. knew that he had no
riffht to the air-way ; but if either
of the workmen knew that the stop-
ping up of the air-way was a mali-
cious act of his master, such work-
men would be guilty of the felony,
JReg. v. James, 8 C. & P. 13I--
Abinger.
In an indictment under 7 <& 8
Geo. 4, c. 30, s. 6, the mine might
be laid as the property of the per-
son in possession and working it,
though only an agent for others.
JReg. V. Jmesy 2 M. C. C. 293 ; 1
C. & K. 181.
Damaging EngvMsfor ^xayrkmg^ .
— ^By s. 29, " whosoever ehali un-
" lawfully and maliciously pull dofwa
" or destroy, or damage with intent
" to destroy or render u^efn, uy
" steam-engine or other engine for
" sinkiftg, draining, ventilating, or
" working, or for m anjrwise asast-
" ing in sinking, draining, ventibt
" ing, or working any mme, or any
" appliance or apparatus in coDuex-
" ion with any such 8team or other
" engine, or any staitb, building, or
"erection used in conducting the
"business of any mine, or any
" bridge, waggon-way, or trunk fof
" conveying minerals from any mine,
" whether such engine, staith, build-
" ing, erection, bridge, wag^-way^
" or tnink be completed or ui an un-
" finished state, or shall unlawfully
" and maliciously stop, obstruct, of
" hinder the working of any sodi
" steam or other engine, or of any
"such appliance or apparatus as
" aforesaid, with intent thereby to
" destroy or damage any mine, or
" to hinder, obstruct, or delay the
"working thereof, or shall unlaw-
" fully and malicionsly wholly or
" partially out through, sever, break,
"or unfasten, or damage with in-
" tent to destroy or render useless,
" any rope, chain, or tackle, of what-
" soever material the Fame shall be
" made, used in any mine, or in or
" upon any inclined plane, railway,
" or other way, or other work what-
"soever, in anywise belonging or
" appertaining to, or connected with,
" or employ^ in any mine, or the
" working or business thereof, shafl
"be guilty of felony.*' (Fonm
enactments^ 7 & 8 Geo. 4, c. 80, s.
7, and 23 & 24 Vict. c. 29, s. 1.)
The bottom of the shaft of a mine
had water in it, and the owner rf
the mine had caused a scafTold to be
erected at some distance ubove the
bottom of the mine, for the purpose
of working a vein of coal which was
on a level with the scaffold : — Hew,
that this scafibld was an " erection
used in the conducting the business
of a mine," within 7 & 8 Geo. 4, c
30, 8. 7, and that th'e damaging it,
SEA AND RIVER BANKS.
315
with intent to destroy it, or to ren-
der it useless, was felony. Reg. v.
Whmmgham, 9 C. & P. 234—
PittesoD.
A coal-mine was worked by a
stetm-engine, which caused a cylin-
der, called a dram, to revolve and
take up the rope as the coal was
drawn up from the mine: — Held,
that proof of damaging the dram
would not support an indictment
whieh chained the damasking a
steam-engine used in working a
mine, lb,
A steam-engine used in draining
and working a mine had been stop-
ped and locked up for the night.
j%e prisoner got into the engine
house, and set it going, and there
being no machinery attached, the
eneine went with great velocity,
tod received damage : — Held, that
this was a damaging of the engine,
within 7 & 8 Geo. 4, c. 80, s. 7.
% V. N&rris, 9 C. <fc P. 241—
Gumey.
5. Sea and Hiver Banks.
By 24 & 25 Vict. c. 97, s. 30,
"whosoever shall unlawfully and
''maliciously break down, or cut
"down, or otherwise damage or
" destroy any sea bank or sea wall,
"or the bank, dam, or wall of or be-
" longing to any river, canal, drain,
"reservoir, pool, or marsh, where-
" by any land or building shall be,
"or shall be in danger of being,
"overflowed" or damaged, or shall
" unlawfully and maliciously throw,
"break, or cut down, level, under-
"mine, or otherwise destroy any
"ouay, wharf, jetty, lock, sluice,
"floodgate, weir, tunnel, towing-
" path, drain, watercourse, or other
" work belonging to any port, har-
"bour, dock, or reservoir, or on or
" belonging to any navigable river
" or canal, shall be guilty of felony."
(Former provision^ 7 <fc 8 Geo. 4,
c. 80,8.12.)
By s. 31, "whosoever shall un-
" lawfully and maliciously cut off,
"draw up, or remove any piles,
^ chalk, or other materials fixed in
' the ground, and used for securing
* any sea bank, or sea wall, or the
' bank, dam, or wall of any river,
* canal, drain, aqueduct, marsh, re-
' servoir, pool, port, harbour, dock,
* quay, wharf, jetty, or lock, or
'shall unlawfully and maliciously
' open or draw up any floodgate or
' sluice, or do any other injury or
* mischief to any navigable river or
' canal, with intent and so as there-
' by to obstruct or prevent the
* carrying on, completing, or main-
* taining the navigation thereof,
* shall be guilty of felony." (JFbr-
ner provision^ 7 & 8 Geo. 4, c. 30,
s. 12.)
By a haven improvement act,
any person who shall place on any
space of ground immediately adjoin-
ing to the haven, and within the
space of ten feet from high-water
mark, any goods, materials, or ar-
ticles whatsoever, so as to obstruct
the free and commodious passage
through and over the same, shall
forfeit and pay any sum not exceed-
ing 5/. B. placed three boats on
the space of ground immediately
adjoining the haven, and within the
space 01 1 0 feet from high-water
mark, so as to obstruct the free and
commodious rasFage to and over
the Fame. There was no public
right of passage over the sj ace of
ground, and it was occupied, by B.:
— Held, by Cockbum, C. J., Cromp-
ton, J., and Blackburn, J., that B.
could not be convicted, as the pro-
vision could only apply to cases
where a public right of pasFage ex-
isted ; but by Wightman, J., that
by the express terms of the act, and
the apparent intention, the provis-
ion extended to such a case, and
that B. was liable to be convicted.
Ilarrod v. Worship^ 30 L. J., M.
C. ICo— Q. B.
6. i^ip8 and Sea Signals.
Setting fire to^ casing avxiy^ ot
destroying Ships^ — By 24 A 25
Vict c. 97, B. 42, '' whosoever sMI
316
MALICIOUS INJURY.
" unlawfully and maliciously set fire
" to, cast away, or in anywise de-
" stroy any ship or vessel, whether
** the Fame be complete or in an un-
" finished state, shall be guilty of
" felony." (J^ormer provision, 7
Will. 4 & 1 Vict. c. 89, s. 6.)
By R. 43, " whosoever shall iin-
" lawfully and maliciously set fire
" to, or cast away, or in anywise
" destroy any ship or vessel, with
" intent thereby to prejudice any
" owner or part o\*Tier of such ship
" or vessel, or of any goods on board
" the Fame, or any person that has
" underwritten or shall underwrite
" any policy of insurance upon such
" ship or vessel, or on the freight
"thereof, or upon any goods on
" board the same, shall be guilty of
" felony." {JFbrfner provision, 7
Will. 4 & 1 Vict. c. 89, s. 6.)
By s. 44, " whosoever shall un-
" lawfully and maliciously, by any
" overt act, attempt to set fire to,
" cast away, or destroy any ship or
" vessel, under such circumstances
" that, if the ship or vessel, were
" thereby set fire to, cast away, or
" destroyed, the offender would be
" guilty of felony, shall be guilty of
« felony."
By p. 45, " whosoever shall un-
" lawfully and maliciously place or
" throw in, into, upon, against, or
** near any ship or vessel any gun-
" powder or other explosive sub-
" stance, with intent to destroy or
" damage any ship or vessel, or any
" machinery, working tools, goods,
" or chattels, shall, whether or not
" any explosion take place, and
" whether or not any injury be ef-
" fected, be guilty of felony."
By 1 2 Geo. 3, c. 24, " it is a cap-
" ital offence to bum the queen's
" ships of war."
It was an offence within 11 <jb 12
Will. 3, c. 7, 8. 9, to make a revolt
in a ship, or to endeavour to make
one, though the object is not to run
away with the ship, or to commit
any act of piracy, but to force the
captain to redress supposed griev-
ances. Hex v. Hastings, 1 M. G. C.
82.
If the crew, or part of the crew,
of a ship combines together to resist
the captain, especially if the ob-
ject is to deprive him of his com-
mand, it will amount to making &
revolt, within 11 & 12 WiU. 3,c.7,
s. 9 ; and it will be no answer to
shew that there were grievanoeB,
which, by their refdstance, the mea
sought to redress. Reg. v. McGre-
gor, 1 C. & K. 429— Abinger.
The destruction of a vessel by i
Dart-owner shews an intent tofre-
udice the other part-owner, though
le has insured the whole ship, m
promised that the other part-owner
should have the benetit theraoC
Bex V. Phaip, 1 M. C. C. 264.
On an indictment against a for-
eigner, who was ship's carpenter oo
board a foreign merchant ship, for
conspiring in this country, widi the
foreign owner and master, to de-
Btroy or cast away the vereal, with
intent to prejudice the owners of
goods on Doai*d, or the insurers of
the ship or cargo, ijb being admitted
that the prisoner was party to the
scuttling of the ship on the h^
seas, the jury was directed to con-
sider whether the prisoner was a
party in this country to a previous
plan or conspiracy to destroy tiie
ship, not limited to its destinatioii
on the hi^h .seas, the principal <^
fence not oeing triable in this coun-
try. Beg. V. Kohn, 4 F. A F. 68
— Willes.
If a ship was stranded, and after-
wards got off in such a state as to
be easily refitted, she could not be
said to have been cast away or de-
stroyed, under 4 Greo. 1, c. 12, and
11 Geo. 1, c. 29. Hex v. Deiondo,
2 East, P.O. 1098.
A person might be tried under 7
Will. 4 ife 1 Vict. c. 89, ss. 6, Il,as
an accessory before the fact to the
offence of setting tire to a vessel of
which he was a part-owner. Beg*
v. Tra«a<?e, Car. & M. 200— Tlndal,
Bosanquet and WilUams.
FISH PONDS.
817
An indictinent was properly fram-
ed, which stated that the principal
felon cast away and destroyed a
vessel, and that the accessory incit-
ed, moved, aided, counselled, hired
and commanded him to do it ; and
the accessory might be convicted on
an indictment so framed, although
the principal had not been tried,
and did not appear to be amenable
to justice. lo.
The underwriters on a policy on
goods fraudulently made were with-
m '7 Will. 4 & 1 Vict. c. 89, s. 6,
though no goods were put on board.
%. V. Wallace, 2 M. C. C. 200.
Exhibiting False Signala, c£c.]
— By's. 47, " whosoever •shall un-
*Mawiully mask, alter, or remove
" any light or signal, or unlawfully
"^exhibit any false light or signal,
**with intent to bring any ship,
"vessel, or boat into danger, or
"^all unlawfully and maliciously
"do anything tending to the im-
" mediate loss or destruction of any
"ship, Vessel, or boat, and for
"which no punishment is herein-
" before provided, shall be * guilty
"of felony." (Former provision,
7 Will. 4 & 1 Vict. c. 89, s. 5.)
Remomng or concealing JSuoys
and other Sea Marks.] — ^By s. 48,
"whosoever shall unlawfully and
" maliciously cut away, cast adrift,
"remove, alter, deface, sink, or
"destroy, or shall unlawfully and
"maliciously do any act with in-
"tent to cut away, cast adrift,
"remove, alter, deface, sink, or
"destroy, or shall in any manner
" unlawfully and maliciously injure
" or conceal any boat, buoy, buoy
" rope, perch, or mark used or in-
^tendea for the guidance of sea-
"men or the purpose of navi^a-
" tion, shall be guilty of felony."
Destft^aying Wrecks, or Artides
of Ships in DistressA—Bj s. 49,
*' whosoever shall unlawfully and
^^maliciously destroy any part of
" any ship or vessel which shall be
" in distress, or wrecked, stranded,
"or cast on shore, or any goods,
" merchandise, or articles of any
" kind belonging to such ship or
" vessel, shall be guilty of felony."
(Former provision, 7 Will. 4 & 1
Vict. c. 89, s. 8.)
Damaging otherwise than by
Fire.] — By s. 46, " whosoever
" shall unlawfully and maliciously
" damage, otherwise than by fire,
" gunpowder, or other explosive
" substance, any ship or vessel,
" whether complete or in an un-
" finished state, with intent to de-
" stroy the same, or render the
" Fame useless, shall be guilty of
" felony." {Former provision, 7
<fc 8 Geo. 4, c. 30, s. 1 0.)
An indictment on the latter stat-
ute for damaging a vessel need not
have stated that the damage was
done "otherwise than by fire," if
it stated how it was done. Mex v.
Bowyer, 4 C. & P. 5«59 — ^Patteson.
7. Fish Ponds.
By 24 & 25 Vict. c. 97, s. 82,
whosoever shall unlawfully and
maliciously cut throagh, break
down, or otherwise destroy the
dam, floodgate, or sluice of any
fish pond, or of any wat«r which
shall be private property, or in
which there shall be any private
right of fishery, with intent there-
by to take or destroy any of the
fish in such pond or water, or so
as thereby to cause the loss or
destruction of any of the fish, or
shall unlawfully and maliciously
put any lime or other noxious
material in any such pond or
water, with intent thereby to
destroy any of the fish that may
then be or that may thereafter be
put therein, or shall unlawfully
and maliciously cut through,
break down, or otherwise destroy
the dam or floodgate of any mill
pond, reservoir or pool, shall be
guilty of a misdemeanor." (For^
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818
MALICIOUS INJURY.
mer provision^ 7 & 8 Geo. 4, c. 30,
a 15.)
The 7 & 8 Geo. 4, c. 27, repealed
5 £liz. c. 29, and 4 Geo. 4, o. 54 ;
and 24 & 25 Vict. c. 95, repeals 7
6 8 Geo. 4, c. 30, s. 15.
The breaking down the head or
mound of a tish-pond was not a
felony within 9 Geo. 1 , c. 22, if it
appeared to have been the object
of the offenders to steal the tish,
and not to let them escape through
the breach in the mound. Rex v.
Rosa, K. & R. C. C. 10 ; 2 East,
P. C. 10G7.
8. Trees, Shrubs, Fences and Veg-
etables,
iStames.]—7 is 8 Geo. 4, c. 27,
repealed 37 Hen. 8, c. 6 ; 43 Eliz.
c. 7 ; 15 Car. 2, c. 2 ; 22 & 23
Car. 2, c. 7; 1 Geo. 1, c 48; 6
Geo. 1, c. 16; 4 Geo. 3, c. 31 ; 6
Geo. 3, c. 48 ; 9 Geo. 3, c. 41, and
46 Geo. 3, c. 67; and 24 & 25
Vict. c. 95, repeals 7 & 8 Geo. 4,
0. 30, and 7 Will. 4 & 1 Vict. c.
90, s. 5, and 7 Geo. 4, c. 27, re-
pealed 9 Geo. 1, c. 22.
By 18 & 19 Vict. c. 126, s. 22,
" the party aggrieved is a compe-
^' tent witness notwithstanding his
" receipt of the money ordered to
^' be paid for compensation."
Trees afid Shrubs.]^By 24 &
25 Vict. c. 97, 8. 20, " whosoever
'' shall unlawfully and maliciously
" cut, break, bark, root up or other-
" wise destroy or damage the whole
^' or any part of any tree, sapling
" or shrub, or any underwood,
** growing in any park, pleasure-
** ground, garden, orchard or ave-
^'nue, or in any ground adjoining
**or belonging to any dwelling-
" house (in case the amount of in-
'^ jury done shall exceed the sum
" of 11.) shall be guilty of felony."
{Former provision, 7 & 8 Gteo. 4,
c 30, K 19.)
By s. 21, "whosoever shall un-
" lawfully and maliciously cut,
" break, bark, root up, or other-
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"wise destroy or damage the
" whole or any part of any tree,
" sapling or slirub, or any tinder-
" wood, growing elsewhere than in
" any park, pleasure-ground, gar-
" den, orchard or avenue, or in any
" ground, adjoining to or belong-
" ing to any dwelling-house (in
" case the amount of mjury done
shall exceed the sum of bL),
shall be guilty of felony." (Fr^
vious enousLment, 7 & 8 Geo. 4, c
30, s. 19.)
Cutting down a tree was siiffi-
cient to bring a case within 9 Gea
1, c. 22, although the tree was not
thereby totally destroyed. jRctt.
Taylor, R. & R. C. C. 373.
Where shrubs are cut upon ao
unproved allegation that they were
likely to be injurious to an adjoin-
ing wall, it is a malicious trespass,
though the title to the spot on
which the shrubs grew is in du^te
between the parties. Rexy, Wha^
ley, 4 M. & R. 431.
Apple and pear trees grafted in
a wild stock, and producing fruit,
were trees within 9 Geo. 1, c. 21
Rex r. Taylor, R. &> R. C. C. 873.
A party might be convicted un-
der the 7 & 8 Geo. 4, c. 30, s. 24,
of having wilfully and malicioosly
damaged growing wood, to tbe
value of sixpence, though section
20 expressly imposed a penalty for
unlawfully and maliciously damag-
ing such wood, " the injury done
bemg to the amount of one shillii^
at least." Reg, v. Dodson, 9 A.i
E.704.
Indictment] — In an indictaient
on 6 Geo. 3, c. 36, for destroying
trees, the name of the owner of the
trees must have been truly stated,
otherwise it was fatal. Rex v. M-
rick, 2 East, P. C. 1059. And see
Rex V. Bowe, 1 Leach, C. C. 481;
2 East, P. C. 588.
The prisoner was indicted for
damaging apple trees growing in &
ffarden, and the indictment alleged
wat the damage was done ftioni-
TREES, SHRUBS, ETC.
819
oasly and not unlawfully or'ma-
Hciouslj :— Held, bad. JRex y.Leuns^
2 Ru^ C. & M. 1066— Bosan^uet.
Evidence of damage comnutted
at several times in uie aggregate,
bat not at any one time exceeding
5/., will not sustain an indictment.
Xeg. V. WUliams, 9 Cox, C. C.
338.
Amount of Iktmage.]— By s. 22,
^'whosoever shall unlawfully and
" maliciously cut, break, bark, root
" up, or otherwise destroy or dam-
" age the whole or any part of any
" tree, Fapling or shrub, or aiiy un-
"derwood, wheresoever the sume
"may be growing, the injury done
*^ being to the amount of Is. at the
^ least, shall, on conviction thereof
"before a justice of the peace, at
" the discretion^ of the justice, either
"be committed to the common
" gaol or house of correction, there
"to be imprisoned only, or to be
"imprisoned and kept to hard la-
" hour for any term not exceeding
" tJiree months, or else shall forfeit
"and pay, over and above the
"amoont of injury done, such sum
" of money, not exceeding 5/., as
" to the justice shall* seem meet ;
" and whosoever, having been con-
" victed of any such oiience, either
" against this or any former act of
" parliament, shall afterwards com-
"mit any of the said offences in
" this section before mentioned, and
" diall be convicted thereof in like
" manner, shall for such second of-
" fence be committed to the com-
" moil gaol or house of correction,
" there to be kept to hard labqur
"for such term, not exceeding
" twelve months, as the convicting
"Justice shall think fit ; and who-
"soever, having been twice con-
" victed of any such offence (wheth-
" er both or either of such conyic-
"tions shall have taken place be-
" &re or after the passing of this
" act), shall afterwanls commit any
" of the said offences in this section
" before mentioned, shall be ffaiXty
" of a misdemeanor." {Previotia
enactment, 7 <fe 8 Geo. 4, c. 30,
s. 20.)
A person was indicted under 7
& 8 Geo. 4, c. 30, s. 19, for having
feloniously, unlawfully and mali-
ciously done damage to trees in a
hedge, thereby doing injury to the
owner to an amount exceeding 51.
The evidence shewed that the act-
ual injury done to the trees was
to the amount of 1/. only, but that
it would be necessary to stub up
the old hedge and replace it, the
expense of which would be 4^. 1 4s.
Tlie jury found him guilty : — Held,
that the conviction was wrong, in-
asmuch as the injury exceeding 5/.
must be actual injury to the trees,
and that proof of consequential in-
jury was insufficient, lieg.y. White-
man, Dears. C. C. 353; 18 Jur.
434 ; 23 L. J., M. C. 120 ; 6 Cox,
C. C. 370.
Vegetables in Gardens.] — By s.
23, " whosoever shall unlawfully
'^ and maliciously destroy or dam-
" age with intent to destroy, any
" plant, root, fruit, or vegetable
*' production, growing in any gar-
" den, orchai'd, nursery ground,
" hothouse, greenhouse or conserva-
" tory, shall, on conviction thereof
" before a justice of the peace, at
" the discretion of the justice, either
" be committed to the common gaol
" or house of correction, there to
" be imprisoned only or to be im-
" prisoned and kept to hard labour
'' for any term not exceeding six
'^ months, or else shall forfeit and
" pay over and above the amount
" of injury done, such sum of mon-
'^ ey, not exceeding 20^., as to the
'^ justice shall seem meet ; and who-
" soever, having been convicted of
" any such offence, either against
" this or any former act of parlia-
"ment, shall afterwards commit
" any of the said offences in this
" section before mentioned, shall be
" guilty of felony." (Previous en-
actment, 7 & 8 Geo. 4, c. 30, s. 21.)
820
MALiaOUS INJURY.
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JSlsewhere.] — By b. 24, " whoso-
ever sliall unlawfully and ma-
UciouBly destroy, or damage with
intent to destroy, any cultivated
root or plant used for the food of
man or beast, or for medicine, or
for distilling, or for dyeing, or
for or in the course of any manu-
facture, and growing in any land,
open or uiclosed, not being a gar-
den, orchard or nursery ground,
shall, on conviction thereof be-
fore a justice of the peace, at the
discretion of the justice, either be
committed to the common gaol
or house of correction, 'there to
be imprisoned only, or to be im-
prisoned and kept to hard labour
for any term not exceeding one
month, or else shall forfeit and
pay, over and above the amount
of the injury done, such sum of
money, not exceeding 20«., as to
the justice shall seem meet, and
in default of payment thereof, to-
gether with the costs, if ordered,
shall be committed as aforesaid
for any term not exceeding one
month, unless payment be sooner
made." (Previous enactment, 7
& 8 Geo. 4, c. 30, s. 22.)
By s. 58, " malice against the
owners of the property injured is
unnecessary."
jpfence^.]— By 24 & 25 Vict. c.
97, 8. 25, " whosoever shall unlaw-
' fully and maliciously cut, break,
' throw down or in anywise destroy
* any fence of any description what-
* soever, or any wall, stile or gate,
' or any part thereof respectively,
' shall, on conviction thereof be-
' fore a justice of the peace, for
* the first oifence, forfeit and pay,
* over and above the amount of
' the injury done, such sum of mon-
*ey, not exceeding 5/., as to the
* justice shall seem meet." (JFbr-
' mer provision, 7 & 8 Geo. 4, c.
* 80, s. 23.)
9. Hop^inds.
By 24 & 25 Vict. o. 97, s. 19,
" whosoever shall unlawfully and
" maliciously cut oi* otherwise de.
" stroy any hop-binds growing on
'^ poles in any plantation of hops
" shall be guilty of felony." (Fw>
mer provision, 7 <fe 8 Geo. 4, c. 30,
8. 18.)
In order to support an indict-
ment under 7 & 8 Greo. 4, c. 30, s.
18, for destroying hop- binds, it
must be shewn that the plant died
in consequence of the injury r^
ceived. troof of the infliction rf
injury by cutting, bruising, ^c, is
insufficient. Meg, v. Bovch^, 5
Jut. 709— Taddy, cSerjt.
10. Works of Art.
By 24 & 25 Vict. c. 97, s. 39,
whosoever shall unlawfully aud
maliciously destroy or damage
any book, manuscript, picture,
print, statue, bust or vase, or any
other aiticle or thing kept for the
purposes of art, science or litera-
ture, or as an object of puriosty,
in any museum, gallery, cabinet,
library or other repositoty, which
museum, gallery, cabinet, libraiy
or other repository is either at aU
times Or from time to time open
for the acTmission of the public,
or of any considerable number of
persons, to view the same, either
by the permission of the ^prie-
tor thereof or by the payment of
money before entering the eame,
or any picture, statue, monumeDt
or other memorial of the dead,
painted glass or other ornament
or work of art, in any church,
chapel, meeting-house or other
|)lace of divine worship, or in
any building belonging to the
Queen, or to any county, riding,
division, city, borough, poor-law
union, parish or place, or to any
university, or college or hall of
any university, or to any inn of
court, or in any street, square,
church-yard, burial-ground, pub-
lic garden or ground, or any
statue or monument exposed to
public view, or any ornament,
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AMOUNT OF INJURY.
321
" railing or fence, siirroanding such
'^statue or monument, shall be
" guilty of a misdemeanor." (Pr«-
vU/us efiactment, 8 & 9 Vict. c. 44,
SB. 1, 4, and 17 & 18 Vict. c. 33,
8.6.)
11. Indictment,
By 24 & 25 Vict. c. 97, s. 58,
"every punishment and forfeiture
" impof«d by the act on any person
"maliciously committing any of-
" fence, whether tlie same be pun-
" ishable upon indictment or upon
" summary conviction, shall equally
"apply and be enforced, wheth-
"er the offence shall be committed
" firom malice conceived against the
" owner of the property in respect
" of which it shall be committed, or
" otherwise."
By 8. 59, " every provision of this
•**act not hereinbefore so applied
" shall apply to every person who,
"with intent to injure or defraud
" any other person, shall do any of
" the acts hereinbefore made penal,
" although the offender shaU be in
"possession of the property against
"or in respect of which such act
"shall be done." ^
By 8. 60, « it shall be sufficient,
"in any indictment for any offence
" against this act, where it shall be
"necessary to all^e an intent to in-
" jure or defraud, to allege that the
"party accused did the act with in-
"tent to injure or defraud, as the
" case may be, without allying an
"intent to injure or defraud any
" particular person ; and on the trial
" of any such offence it shall not be
** necessary to prove an intent to in-
" jure or defraud any particular per-
"son, but it shall be sufficient to
"prove that the party accused did
" the act charged with an intent to
"injure or defraud, as the case may
12. Amount of Injury,
By 24 & 25 Vict c. 97, s. 51,
"whosoever shall unlawfully and
"maliciously conmiit any damage,
Fish. Dig.— 24.
" injury or spoil to or upon any
" real or pei'sonal property whatso-
" ever, either of a public or private
" nature, for which no punishment
" is provided, the damage, injury or
'^ spoil being to an amount exceed-
" ing 5/., shall be guilty of a misde-
" meaner, and, being convicted
'^ thereof, shall be liable, at the dis-
" cretion of the court, to be impris-
" oned for any term not exceeding
"two years, with or w^ithout hard
" labour ; and in case any such of-
" fence shall be committed between
" the hours of nine of the clock in
" the evening and six of the clock in
^' the morning, shall be liable, at the
" discretion of the court, to be kept
" in penal servitude for any term
" not exceeding five years and not
" less than three ; or to be imprison-
" ed for any term not exceeding two
"years, with or without hard la-
" hour."
Under this provision, evidence of
damage committed at sevei-al times,
in the aggregate, but not at any one
time exceeding 5/., will not sustain
an indictment. lieg. v. WUliams^
9 Cox, C. C. 338.
Upon an indictment for damag-
ing trees and shrubs in a hedge to
an amount exceeding 5/., a valuer
proved that he estimated the in-
jury to the trees at 1/., but that it
would be necessary to stub up
the old hedge, and that it would
cost 5/. 14*. 6rf. to replace it: — Held,
that upon this evidence the indict-
ment could not be sustained. Reg.
V. WhUeman, 6 Cox, C. C. 370;
23 L. J., M. C. 120 ; Dears. C. C.
353 ; 23 L. J., M. C. 120.
Damage done to a field by a
poacher^s dog in pursuit of game,
was not a malicious injury within 7
& 8 Geo. 4, c. 30, s. 23. Reg. v.
Brestney, 3 Cox, C. C. 505— Parke.
13. WUnessea.
By 18 & 19 Vict. c. 126, s. 22,
" in all cases of wilful or malicious
" injuries to property, where justices
" have the power of awarding com-
322
MALICIOUS INJURY.
" pensation to the party injured, his
" rischt thereto is not to be affected
" by I'eason of his being a witness
" in proof of the offence/'
14. Kitting or Maiming Cattle or
other Animals.
Statute.']— By 24 & 25 Vict. c.
97, s. 40, " whosoever shall unlaw-
" fully and maliciously kill, maim
" or woimd any cattle shall be guilty
" of felony." {Former provision^ 7
& 8 Geo. 4, c. 30, s. 16.)
Bys. 41, "whosoever shall un-
" lawfully and maliciously kill,
" maim or wound any dog, bird,
" beast or other animal, not being
" cattle, but being either the subject
"of larceny at common law, or
" being ordinarily kept in a state of
" confinement, or for any domestic
" purpose, shall, on conviction there-
" of before a justice of the peace, at
" the discretion of the justice, either
" be committed to the common gaol
" or house of correction, there to be
" imprisoned only, or to be impris-
" oned and kept to hard labour for
" any term not exceeding six months,
" or else shall forfeit and pay, over
" and above the amount of injury
" done, such sum of money, not ex-
" ceeding 20Z., as to the justice shall
" seem meet ; and whosoever, hav-
" ing been convicted of any such of-
" fence, shall afterwards conunit
" any of the said offences in this sec-
" tion before mentioned, and shall
" be convicted thereof in like man-
"ner, shall be committed to the
" common gaol or house of correo-
" tion, there to be kept to hard la-
" bour for such term not exceeding
" twelve months, as the convicting
**justice shall think lit." {Former
Provision^ 7 <fc 8 Geo. 4, c. 30, s.
17.)
By -6. 58, " malice against the
" owner of the cattle or other ani-
" mal injured is unnecessary to be
" shewn."
T/ie 7 Geo. 4, c. 27, repecded 37
Hen. 8, c. 6 ; 22 & 23 Car. 2, c. 7 ;
9 Geo. 1, c. 22 {the JBlack Act) ; and
4 Geo. 4, c. 54 ; and 24 & 25 Vict,
c. 95, repeals 7 & 8 Geo. 4, c. 16
and 7 WilL 4 & 1 Vict, c 90, a. 2.
Horses, mares and colts were in-
cluded in the word " cattle" in 9
Geo. 1, c. 22. Hex v. i%, 2
East, P. C. 1074 ; I Leach, C, C.
72 ; 2 W. Bl. 721 ; S. P., Bex t.
Magle, 2 East, P. C. 1076.
So were geldings. lUx v. MoUi
2 East, P. C. 1075 ; 1 Leach, C.
C. 73, n.
Wounding a horse out of malioe
to the owner, by driving a nail into
the frog of his hoof, was within 9
Geo. 1, c. 22, though the injury ww
only tempoi-ary. mx v. ffca/wood^
2 East, P. C. 1076 ; R. & R. C. C.
16.
Pigs were cattle within 9 Geo. 1,
c. 22. Eex V. Chappie, R. & R. C.
C. 77.
So were asses. Hex v. Whitney, 1
M. C. C. 3.
Pouring acid into the eve of &
mare, and thereby blinding her,
was a maiming. jRex v. Oi^iu, 1
M. C. C. 205.
Injuring a sheep by setting a dog
at it was not 8uch a maiming or
wounding as^as within 4 Geo. 4, c^
54, 8. 2. Bex v. Hughes, 2 C. 4
P. 420— Park. But see Mfole^s
case, 2 Lewin, C. C. 126.
If A. set fire to a cow-honfae and
burnt to death a cow which vm
in it, A. was indictable under 7 1
8 Geo. 4, c. 30, s. 16, for killing the
cow. Eex V. Houghton, 5 C. & P.
559— Taunton.
In order to constitute a maiming
of a horse within 7 & 8 Geo. 4, c.
30, 8. 16, it was essential that a per-
manent injury should have been in-
iiicted on the animal. Reg, v.
Jeans, 1 C. & K. 539— Wisrhtnian.
On an indictment on 7 Will 4 &
1 Vict. c. 90, 8. 2, for maliciously
wounding cattle, it was not neces-
sary to prove that the prisoner was
actuated by malice against the
owner of the cattle. Reg. v. 7Vi»jf,
1 C. & K. 704 ; 1 Den. C. C. 63.
A conviction under 7 de 8 Geo. 4,
MSDEMEANORS— WHAT INDICTABLE.
323
c. 30, s. 1 6, of unlawfully, .mali-
ciously and feloniously wounding a
mare, held right. Ih,
Upon an indictment under 24 <&
25 Vict. c. 97, s. 40, for malicious-
ly wounding a horse, it is not nec-
essary to prove that any instru-
ment was used to inilict the wound.
Reg. V. BuUock, 1 L. R, C. C. 115 ;
37 L J., M. C. 47 ; 17 L. T., N. S.
516; 16W.R405; 11 Cox, C. C.
125.
^idtdment,'] — On an indictment
for maliciously killing two sheep,
the property in them may be laid to
be in the asrister. Hex y. Woodward,
2 East, P. a. 653.
An indictment on 9 Geo. 1, c. 22,
mll^t have stated the species and
sex of cattle wounded or injured ; to
state that the prisoner maimed cer-
tain cattle was not sufficient. Hex
V. Chalkley, li. & R. C. C. 258.
(Farm now 24 ^ 25 Vict. c. 97, 8. 60.)
Evidmce.'\ — Jf a prisoner mixed
poison with the corn intended for
the feed of eight horses, and then
gave each horse his feed from this
mixture, an indictment charging
that he did administer* the poison to
the eight horses, is correct. Hex v.
Mogg, 4 C. <& P. 364— Park.
On an indictment for administer-
ing sulphuric acid to eight horses,
with intent to kill them, the prose-
cutor may give evidence of adminis-
tering, at different times, to shew
the intent; but if the jury is satis-
fied that the offender administered
the poison under an idea that it
would improve the appearance of
the horses, he ought to oe acquitted.
lb.
XXn. Misdemeanors.
1. What Indictable in general, 323.
2. Attempt to commit, 324.
1 . What Indictable in general.
By 14 A 15 Vict. c. iOO, s. 12,
" if, upon the trial of any person for
^' any misdemeanor, it shall appear
" that the facts given in evidence
*'*' amount, in law, to a felony, such
" person shall not by reason thereof
" be entitled to be acquitted of such
^' misdemeanor, and no person tried
^^ for such misdemeanor shall be li-
" able to be afterwards prosecuted
" for felony on the same facts, un-
" less the court, before which such
'^ trial may be had, shall think fit,
" in its discretion, to discharge the
"jury from giving any verdict
" upon such trial, and to direct such
" person to be indicted for felony,
" m which case such person may be
" dealt with in all respects as if he
" had not been put upon his trial
" for such misdemeanor."
Upon an indictment for a misde-
meanor, it is no ground for an ac-
quittal that the evidence necessary
to prove the misdemeanor also shews
it is part of a felony, and that the
felony has been completed. Reg, v.
BtUton, 3 Cox, C. C. 229.
It is not indictable if an overseer,
without fraud or menacis, remove a
pauper under an order, after it has
been confirmed, on appeal, by the
sessions, subject to the opinion of
the Queen's Bench and before its
final determination by that court.
Reg. V. Cooper, 3 New Sess. Cas.
346; 18L. J., M. C. 16— Q. B.
A parent, who has not the means
of providing burial for the body of
his deceased child, is not liable to
be indicted for a misdemeanor in
not providing for its burial, even
though a nuiFance is occasioned by
allowing the body to remain un-
buried, and although the poor-law
authorities of the union have offer-
ed him money to defray the expen-
ses of burial, by way of loan, as he
is not bound under such circum-
stances to contract a debt. Reg. v.
Vann, 2 Den. C. C. 325 ; T. & M.
632 ; 15 Jur. 1090 ; 21 L. J., M. C.
39.
A conspiracy to procure by false
pretences, false representations, and
other fraudulent means, a young
324
MISDEMEANORS.'
girl to have illicit carnal connexion
with a man, is a misdemeanor at
common law. Meg, v. Mear$^ T. &
M. 414 ; 2 Den. C. C. 79 ; 15 Jur.
66 ; 20 L. J., ]V1 C. 59. See 24 <fc
25 Vict c. 95.
It is a misdemeanor to procure
indecent prints with intent to pub-
lish them. Dugdcde v. Reg. (in er-
ror), I El. & Bl. 435 ; Dears. C.
C. 64 ; 17 Jur. 546 ; 22 L. J., M.
C. 50.
But to preserve and keep them in
possession with such intent is not.
Ih.
Tlierefore, where some counts
charged that the defendant obtain-
ed and procured indecent prints, in
order and for the purpose of unlaw-
fully publishing and selling them,
and thereby corrupting the public
morals, and other counts charged
that the defendant unlawfully and
knowingly preserved and kept in
possession indecent prints, with the
same intent : — Held, that the for-
mer counts were good, inasmuch
as they chhrged an act done to-
wards the commission of a misde-
meanor ; but that the latter counts
were bad, inasmuch as they did not
charge such an act. lb.
Uttering a false testimonial to
character, knowing it to be forged,
with intent to deceive, and thereby
obtaining a situation of emolument,
is a misdemeanor at common law.
Reg. V. Sharman^ Dears, C. C. 285 :
18 Jur. 157 ; 23 L. J., M. C. 51.
2. Attempt to commit.
By 14 & 15 Vict. c. 100, s. 9,
"whereas offenders often escape
"conviction by reason that such
" persons ought to have been charg-
" ed with attempting to commit of-
" fences, and not with the actual
" commission thereof, for remedy
" thereof be it enacted, that if, on
" the trial of any person charged
" with any felony or misdemeanor,
" it shall appear to the jury, upon
" the evidence, that the defencUnt
did not complete the offence
cc
" charged, but that he was gmlty
" only of an attempt to commit tiie
" same, such person shall not bj
" reason thereof be entitled to li«
" acquitted, but the jury shall be
" at liberty to return as their ver*
" diet that the defendant is not
" guilty of the felony or misdemeaD-
" or charged, but is guilty of an at-
" tempt to commit the same, and
" thereupon such person shall be li-
" able to be punished in the game
" manner as if he had been con-
" victed upon an indictment for at-
" tempting to commit the pardcolai
" felony or misdemeanor chai^ in
" the indictment ; and no person so
"tried as herein lastly mentioned
"shall be liable to be afterwarda
" prosecuted for an attempt to com-
" mit the felony or misdemeanor
" for which he was so tried."
A. was indicted for breaking and
entering a dwelling-house, and steal-
ing cei'tain specified goods. It ap.
peared tliat, at the time of tbe
breaking and entering, the goods
named in the indictment were not
in the house, but there were other
goods there belonging to the pros-
ecutor. The^jury K)und that be
was not guilty of the felony charged,
but that he was guilty of breakkg
and entering the dwelling-house of
the prosecutor, and attempting to
steal his goods therein : — HeJd,
that there was no attempt to com-
mit the felony charged within the
meaning of the above section, and
therefore the verdict could not be
sustained. Reg. v. APPhertcmJkKK
& B. C. C. 197 ; 3 Jur., N. S. 523;
26 L. J., M. C. 134.
The moment a man takes one
necessary step towards the comple-
tion of a misdemeanor, he commits
a misdemeanor. Reg. v. Chc^pfnm^
2 C. & K. 846 ; 1 Den. C. C. 432;
T. & M. 90 ; 13 Jur. 885 ; 18 L J.,
M. C. 152.
Every step towards a misdemean-
or, by an act done, is punishable as
a misdemeanor. lb.
Any one act of fraud upon a pub-
MURDER, MANSLAUGHTER, ETC.— MURDER. 825
lie officer, with intent to deceive,
whereby a matter required by law
for the accomplishment of an act of
a pubUc nature is illegally obtained,
amounts to an indictable misde-
meanor ; and it need not be alleged
or proved either that the act was in
&ct accomplished, or that the party,
aft the time of committing the fraud,
intended that it should be. lb.
A fiilse oath taken before a surro-
gate, with intent to deceive such
surrogate, and to obtain from him a
license for a marriage, is punishable
fts a misdemeanor, although it is not
alle^ in the indictment, nor prov-
ed in evidence, that the marriage
was in £ict celebrated, and although
the party found guilty was not the
person about to be maiTied. lb.
Every attempt (not 'every inten-
tion, but every attempt) to com-
mit a misdemeanor is a misdemean-
or. Reg. v. Martin^ 9 C. & P.
215— Patteson ; S. P., Reg, v. Mar-
tin, 9 C. & P. 213 ; 2 M. C. C. 123.
An attempt to commit a misde-
meanor is a misdemeanor, whether
the offence was created by statute,
or was an offence at common law.
Bex V. Roderick, 7 C. & P. 795.
— Pirke ; Rex v. Cartwright, R.
4 R. C. C. 107— Le Blanc;
Rex v. Buder, 6 C. & P. 368— Pat-
tern.
An indictment which merely
charges that the defendant did un-
lawfully attempt and endeavor
fraudulently, falsely and unlawfully
to obtain from A. a large sum of
money with intent to cheat and de-
fraud him, is bad in arrest of judg-
ment. Reg. V. Martk, 3 Cox, C.
C.571; 19 L. J., M. C. 12.
6. was indicted under 24 <jk 25
Vict. c. 96, s. 57, for having feloni-
ously broken into and entered a shop,
with the intent to commit a felony
therein. It was proved that he
niade a hole in the ixjof, with intent
to enter and steal, but was disturb-
ed. There was no evidence of his
having in any way entered the build-
ing :— Held, that he was properly
convicted of a misdemeanor of at-
tempting to commit a felony. Reg.
V. Bain, L. AC. 129 ; 9 Cox, C.
C. 98 ; 8 Jur., N. S. 418 ; 31 L. J.,
M. C.88; lOW.R. 236.
An attempt to commit a felony
can only be made out where, if no
interruption had taken place, the
felony itself could have been effect-
ed. Beg. V. Collins, L. & C. 471 ;
9 Cox, C. C. 497 ; 10 Jur., N. S.
686; 33 L. J., M. C. 177; 12 W.
R. 886 ; 10 L. T., N. S. 581.
XXHL Murder, Manslaughtbb,
AXD Offences against the
Person.
1. Murder, 826.
2. Manslaughter. 334.
3. Abroad and at Sea, 346.
4. PrincipIeSf Accessories and Abet-
tors, 349.
5. Conspiring, or Soliciting to commit
MwrdeTy 350.
6. Attempts to Murder and Inflicting
grievous Bodily Harm, 350.
(ti.) Bjf Administering Poison,
350.
(h) With Intent to procure Mis^
carriage or Abortion, 3.53.
fc^ By Shooting, Wounding,
Drouming, Suffocating or
Strangling, 354.
(d) Inflicting Grievous Bodily
Barm, 358.
(e) By Resisting or Preventing
the Apprehension or /?•-
tainer of Persons, 363.
(f) By Means of Gunpoicder or
other Explosive Substan'
ces, 364.
(g) By setting Fire to or casting
away Ships, 365.
(h) Preventing Rescue from
Shipwreck, 365.
(\) By other Means, 365.
7. Spring &un«, 366.
8. iUtreating Children, Apprentices,
Servants, Idiots, ana Helpless
Persons, 366.
(a) The Offence, 366.
(h) Indictment, 370.
(c) Evidence, 37 \,
9. Injuring Persons hu Wanton or
Furious Driving, 371.
10. Indictment for Murder and Man-
slaughter, 371,
11. Decfarations in Ariiculo Mortis,
375.
326
MURDER, jIANSLAUGHTliR, ETC.
12. Endenceand YFt7n«ssf«, 380.
13. Trial f JudgMent, and Execution
in Alitrder, 882.
14. Punishment for Manslaughter f 383.
1. Murder,
*aflrfM/6.]— By 24 & 25 Vict. c.
100, 8. 1, " whosoever shall be con-
" victed of murder shall suiFer death
" as a felon/'
By s. 8, " every offence which, be-
" fore the commencement of 9 Greo.
" 4, c. 31, would have amounted to
^^ petit treason, shall be deemed to
" be murder only, and no greater
" offence ; and all persons guilty in
" respect thereof, whether as princi-
" pals or as accessories, shall be
"dealt with, indicted, tried and
" punished as principals and acces-
" series in murder."
General Principles.^ —Accident-
al homicide may be murder, if it
happens in the prosecution of any
illegal act ; as in carrying away fur-
niture to avoid distress for rent.
Hex V. Hodgson^ 1 Leach, C. C. 6 ;
S. G. nom. Hex v. Hubson^ 1 East,
P. C. 258.
The killing a man on the high-
way is not justifiable homicide, un-
less there was an intention on the
part of the person killed to rob or
murder, or do some dreadful bodily
injury to the person killing; or in
other words, the conduct of the
party must be such as to render it
necessary on the part of the party
killing to do the act in self-defence.
Reg. V. BuU, 9 C. & P. 22— Vaugh-
an and Williams.
In a case of death by stabbing,
if the jury is of opinion that the
wound was inflicted by the prisoner
while smarting under a provocation,
so recent and so strong that he may
be considered as not being at the
moment master of his own under-
standing, the offence will be man-
slaughter ; but if there has been, after
provocation, sufficient time for the
blood to cool, for reason to resume
its seat, before the mortal wound
was given, the offence will amonnt
to murder ; and if the prisoner dis-
plays thought, contrivance and de-
sign in the m€>de of possessing him-
self of the weapon, and in a^ain re-
placing it immediately after the blow
was struck, such exercise of contriT-
ance and design denotes rather the
presence of j udgment and reason than
of violent and ungovernable passion.
Rex V. Hayioard^ 6 C. & P. 157 —
Tindal.
It is no excuse for killing a mm
who was out at night dressed in
white as a ghost, for the purpose of
frischtening; the neio:hbourbood, thftt
he could not othehvise be taken.
Rex V, Smith, 1 Russ. C. & M. 749.
Where a wound is willfully, and
without justifiable cause, inflicted,
and ultimatelv becomes the caufie
of death, the party who inflicted it
is guilty of murder, though life
might have been preserved if the
deceased had not refused to sabmit
to a surgical operation. Reg. v.
HoUand, 2 M. & liob. 351— Mauk
TJie circumstance of a person hat-
ing acted under an irresistible in-
fluence to the commission of homi-
cide, is no defence, if at the time he
committed the act he knew he was
doing what was wrong. Reg. v.
Haynes, 1 F. & F. 666— BramwelL
An indictment stated that the
prisoners gave, administered and
delivered to A. large and excesave
quantities of spirits and water, wine
and porter, and induced, procured
and persuaded him to drink them,
being likely to cause death, which
they well knew. The deceased was
a man in possession under the sher-
iff, and one of the prisoners, of
whose goods he was in possesidon,
assisted by his brother and a friend,
plied the man with liquor, them-
selves drinking freely also, and wh«i
' he was very drunk put him into a
cabriolet and caused liim to be driv-
en about the streets; and about
two hours afler he had been put in-
to the cabriolet he was foimd dead :
— Held, that, if it was essential to
MURDER.
827
prove that the prisoners knew that
the liquors were Ukely to cause death,
the case would be one of murder and
notof manslaughter ; but that such al-
legation was not a material part of
the indictment, but might be dismiss-
ed from the jury's consideration.
%. V. Packard, Car. & M. 236—
Pirke.
Held, also, that if the prisoners,
when the deceased was drunk, put
him into a cabriolet and drove him
abont in order to keep him out of
posResalon, and by so doing accele-
rated his death, it would be man-
rfangliter. lb.
If a father sees a person in the
act of committing an unnatural of-
fence with his son, and instantly
kills him, it seems tljat it would
only be manslaughter, and that of
the lowest degree ; but if he only
hears of it, and goes in search of the
person, and meeting him, strikes
him with a stick, and after wai'ds
Ftabs him with a knife and kills
him, in point of law it will be mur-
der. Beg. V. Fisher, 8 C. ife P.
182— Park, Parke and Recorder
Law.
In a case of killing, whetlier the
blood has had time to cool or not
is a question for the court, and not
for the jury ; but it is for the jury
to find what length of time elapsed
between the provocation received
and the act done. lb.
Where it appears that one per-
son's death is occasioned by the
hand of another, it is for that other
to shew, either by evidence or by
inference from the circumstance of
the case, that his offence is of a
mitigated character, and does not
amount to the crime of murder.
Aar V. Gremacre, 8 C. <fc P. 35—
'Hndal, Coleridge, Coltman and Re-
corder Law.
Forcing a person to do an act
which is likely to produce his death,
and which does produce it, is mur-
der. Rex v. EvcoM 1 Russ. C. &
M.676.
And threats may constitute such
force. lb.
If two persons fight, and one over-
powers the other, and knocks him
down, and puts a rope around his
neck and strangles him, this will
be murder. Rex v. Shaw, 6 C. &
P. 872— Patteson.
If a person, being in possession* of
a deadly weapon, enters into a con-
test with another, intending at the
same time to avail himself of it, and
in the course of the contest actually
uses it, and kills the other, it will be
murder ; but if he did not intend to
use it when he began the contest,
but used it in the heat of passion,
in consequence of an attack made
upon him, it will be manslaughter.
If he uses it to protect his own
life, or to protect himself from
such serious bodily harm as would
give him a reasonable apprehension
that his life was in immediate dan-
ger, ha vino: no other means of de-
fence, and no means of escape, and
retreating as far as he can, it will be
justifiable homicide. Reg. v. Smith,
8 C. &P. 160— Bosanquet, Holland
and Coltman.
A person cannot' be indicted for
murder in procuring another to be
executed by falsely charging him
with a crime of which he was inno-
cent. Rex V. Macdamel, 1 Leach,
C. C. 44; 1 East, P. C. 333.
Even blows previously received
will not extenuate homicide upon
deliberate malice and revenge; es-
pecially where it is to be collected
from the circumstances that the
provocation was sought for the pur-
pose of colouring tSe revenge.
Rex V. Mason, 1 East, P. C. 239.
If a blow without provocation is
wilfully inflicted, the law infers
that it was done with malice afore-
thought, and if death ensues, the
offender is guilty of murder, al-
though the blow may have been
given in a moment of passion.
Reff. V. Noon, 6 Cox, C. C. 137—
Cresswell.
I
328
MURDER, MANSLAUGHTER, ETC.
As an assault, tliough illegal, will
not reduce the crime of the party
killing the person assaulting him to
manslaughter, when the revenge is
disproportionate and barbarous,
much less will such personal re-
straint and coercion as one man may
lawfully use towards another form
any ground of extenuation. Hex v.
WiUoughhy, 1 East, P. C. 288.
If A. stands with an offensive
weapon in the doorway of a room,
wrongfully to prevent J. S. from
leaving it, and others from entering,
and C, who has a right in the room,
struggles with him to get his weap-
on from him, upon which D., a com-
rade of A., stabs C, it will be mur-
der in D. if C. dies. Rex v. Zon^-
den, R. & R. C. C. 228.
A father struck a fatal blow at
the husband under the impulse of a
strong resentment, caused by seeing
his daughter violently assaulted by
her husband, although not in a man-
ner to endanger her life: — Held,
that this might be a ground upon
which the offence of murder might
be reduced to that of manslaughter.
Meg. V. Harrington^ 10 Cox, C. C.
870— Cockbuni.
An assault, too slight in itself to
be a sufficient provocation to reduce
murder to manslaughter, may be-
come sufficient for that purpose
when coupled with words of great
insult. Meg. v. Smithy 4 F. & F.
1066— Byles.
By Parties acting together^ and
with a common Design.] — On an in-
dictment of A. & B. for murder, it
appeared that both followed the de-
ceased out at night, and that A.,
who was the first to overtake him,
threw him down a steep bank into a
wet ditch, and then tried to rob him,
and not being able, owing to his re-
sistance, callei to B., who then was
on the top of the bank, to come and
help, which he did, and they both
forcibly committed the robbery* It
did not appear that there was any
serious injury, except that caused by
the fall, and the deceased died three
weeks afterwards of pneumonia, or
inflammation of the lui^, which
might either be caused by cold or
violence : — Held, that though there
was evidence against both for mar-
der, there was not sufficient to con-
vict, unless the jury was satisfied
that there was a joint design to com-
mit the violence, nor to conviet
either, unless satisfied that it canned
the death. Meg. v. Lee, 4 F. & F.
63— Pollock.
. Where two persons go out with
the common ooject of robbing %
third person, and one of them, in
pursuit of that common object, does
an act which causes the death of
that third person, under such dr-
cumstances as to be murder in him
who does the act, it is murder in
the other also. Meg. v. Jackson^ 7
Cox, C. C. 357— Martin.
The doctrine of constructive horn-
icide, as regards offenders not act-
ually present at, or parties to, an
act of homicide, but sought to
be made liable for it, by reason of
their being engaged in a common
purpose, in the course of carrying
out which the act of homicide oc-
curs, only applies (there being no
evidence of a common intent to car-
ry out the purpose at all hazards,
and by all means), where the com-
mon purpose is felonious ; not where
it is merely unlawful, as in the case
of a misdemeanor, such as utgbt-
poaching. Meg. v. Skeet^ 4 F. & F.
931— Pollock.
Therefore, where iseveral men
were engaged at night-poachii^,
and in a scuffie with a gamekeepa
he was killed by a shot from the
gim of one of them : — ^Held, Uiat
whether or not the gun was fired,
there being no evidence to shew
that the other prisoners were yur-
ties to the act of firing it, they were
not guilty even of manslaughter;
merely by i*eason of the act of hom-
icide occurring in the course of
poaching. lb.
Held, that even although thegmi
MURDER.
329
vent off ftccidentally in the course
of a scuffle with the keeper, he hav-
ing a right to take the gon, it was
manslaughter in the man who caus-
ed it Th.
In Self-defenceJ] — If a person is
impressed who is not a proper ob-
ject of impressment, or if the im-
pressment is made without any legal
warrant, it is lawful for the party
to make resistance ; and if the death
of any of the parties concerned en-
sues, it is murder. Jiex v. IHxan, 1
East, P. C. 313 ; R. & R. C. C. 53 ;
S. P., Eex V. JRokehv, 1 East, P. C.
812.
If a person being attacked should,
from an apprehension of immediate
Tiolence — an apprehension which
must be well grounded and justified
* by the circumstances-»^throw him-
self for escape into a river, and be
drowned, the person attacking him
is guilty of murder. Beg. v. Pitts,
Oar. & M: 284— Erskine.
A person set to watch a yard or a
garden is not justified in shooting
My One who comes into it in the
n^t, even if he should see the par-
ty go into his master's hen-roost;
bet if, from the conduct of the par-
ty, he has fair grounds for believing
bis own life in actual and immediate
danger, he is justified in shooting
bim. Sex v. Sctdlt/, 1 C. & P. 319
-^rrow.
Bj/ firing Buildings or &acks,] —
Where a person indicted for mur-
der had wilfully set fire to a stack
of straw, close to an out-house or a
bam, in an inclosure not adjoining
to a dwelling-house, and the deceas-
ed burned to death, either in the
out-house or on or by the side of
the stack : — ^Held, that he was not
gwlty of murder, unless the deceas-
ed was there when he set fire to the
stock. Reg. v. Horsey, 3 F. i& F.
287— Bramwell.
CkUd Murder.] — To justify a con-
viction on an indictment charging a
Fish; Dig.— 25.
woman with the wilful murder of a
child of which she was delivered,
and which was bom alive, the jury
must be satisfied aflirmatively that
the whole body was brought alive
into the world ; and it is not suflS-
cient that the child has breathed in
the progress of the birth. Eex v.
PouUon, 5 C. & P. 329— Littledale;
S. P., Hex V. Enoch, 5 C. & P. 539
— Parke.
If a child has been wholly pro-
duced from the body of its moth-
er, and she wilfully and^f malice
aforethought, strangles it while it is
alive and has an independent circu-
lation, this is murder, although the
child is still ^attached to its mother
by the umbilical cord. Heg. v.
Trilloe, Car. & M. 650 ; 2 M. C. C.
260.
A girl was indicted for the mur-
der of her child, aged sixteen days.
She was proceeding from Bristol to
Llandogo, and was seen near Tin-
tern, with the child in her arms, at
6 p.m. ; she anived at Llandogo
between 8 and 9 p.m., without the
child. The body of a child was af-
terwards found in the river Wye^
near Tintern, which appeared not
to be the child of the prisoner : —
Held, that she must be acquitted,
and that she could not by law either
be called upon to account for her
child, or to say where it was, unless
there was evidence to shew that her
child was actually dead. JReg. v.
Hopkins, 8 C. & P. 591 — ^Abinger.
A prisoner was charged with the
murder of her new-bom child, by
cutting off its head : — ^Held, that in
order to justify a conviction for
murder, the jury must be satisfied
that the entire child was actually
born into the world in a living
state ; and that the fact of its hav-
ing breathed is not a decisive proof
that it was bom alive, as it may
have breathed, and yet died before
birth. Eex v. SeUis, 7 C. & P. 850
— Coltman.
On a charge of child-murder, it
appeared that the child must have
330
MURDER, MANSLAUGHTER, ETC.
died before it had an independent
circulation : — ^Held, that as the child
had never had an independent cir-
culation, the charge of murder could
not be sustained. Reg, v. Wright^
9 C. & P. 754— Gurney.
An unskilful practitioner of mid-
wifery wounded the head of a child
before the child was perfectly bom.
The child was afterwards bom alive,
but subsequently died of this injury :
— Held, manslaughter, although the
child was in ventre sa mfere at the
time when the wound was given.
Rex V. Senior, 1 M. C. C. 346 : 1
Lewin, C. C. 183, n.
On the trial of an indictment
against a woman for the man-
slaughter of her new-bom child,
the evidence went to prove that the
child had dropped from her whilst
she was on the privy, and that it
had been smothered in the soil : —
Held, that if the jury was of opinion
that after it had been born the moth-
er had the power of procuring such
assistance as mi^ht nave saved the
child's life, and she neglected to
procure it, she was guilty of man-
slaughter. Reg, V. Mtddleshtpy 5
Ck)x, C. C. 275— Erie.
Killing Wife caught in Adultery,']
— If a man finds his wife in the act
of committing adultery, and kills
her, this will be but manslaughter
only ; but if a man takes away the
life of a woman, even his own wife,
because he suspects, however strong-
ly, that she has been engaged in some
illicit intrigue, this will be murder.
Reg. V. Kelly, 2 C. & K. 814 —
Rolfe.
If a man kills his wife, or the
adulterer, in the act of adultery,
it is manslaughter and not murder.
Pearson^ s case, 2 Lewin, C. C. 216 —
Parke.
Bg Poisoning, '\ — On a trial for
murder by poisoning, statements
made by the deceased in a conver-
sation dhortly before the time at
which the poison is supposed to
have been administered, are eri-
dence to prove the state of his
health at that time. Reg, v. Join-
son, 2 0. & K. 354 — ^Alderson.
On an indictment against a wo-
man for the murder of her hus-
band by arsenic, in September, evi-
dence was tendered on behalf of the
prosecution of arsenic having been
taken by her two sons, one of whom
died in December and the other in
March subsequently, and also by a
third son, who took arsenic in April
following, but did not die. Troot
was given of a similarity of sjrn^
toms in the four cases. Evidence
was also tendered that she lived in
the same hduse with her husband
and sons, and that she prepared
their tea, cooked* their victuals, and
distributed them to the four parties:
— Held, that this evidence was ad-
missible for the purpose of proving,
first, that the deceased husband act-
ually died of arsenic ; secondly, that
his death was not accidental ; and
that it was not inadmissible by rea-
son of its tendency to prove or cre-
ate a suspicion of a subsequent M-
ony. Reg, v. Geering, 18 L. J., M.
C. 2 15— Pollock.
On an indictment for the murder
of A., evidence is not admiBnble
that three others in the same &mily
died of a similar poison, and that
the prisoner was at all the deaths,
and administered somethingto two
of these patients. Reg, v. windofm,
8 Cox, C. C. 397— Martin.
Upon the trial of a husband and
wife for the murder of the mother
of the former by administering ar-
senic to her, for the purpose of re-
butting the inference that the ar-
senic had been taken by accident,
evidence was admitted that the
male prisoner's first wife had been
poisoned nine months previously;
that the woman who waited upon
her, and occasionally tasted her
food, shewed symptoms of ha\ing
taken poison ; that the food was al-
ways prepared by the female prison-
er ; and that the two prisoners, the
MURDER.
331
only other persons in the house, were
not affected with any Fymptoms of
poiFOD. Reg, v. Garner^ 4 F. & F.
346-Wille6.
A., at the instigation of a woman
who was pregnant by him, and in-
flaenced by her threats of self-de-
struction if the means of procuring
abortion were not supplied to her,
procured some corrosive sublimate,
and handed it to the woman, who
took it, and died from its etifects.
He was not present when the poison
was taken by the woman. He was
indicted for murder. The jury neg-
atived the fact of his having admin-
istered the poison, or caused it to
be taken bv the woman, but said
that he delivered it to her with the
full knowledge of the purpose to
which she intended to apply it : —
Held, that he was not guilty of
murder. Req. v. Fretwell, 9 Cox,
C. G. 152 ; 8 Jur., N. S. 466 ; 31 L.
J., M. C. 145 ; 10 W. R. 545 ; 6 L.
T., N. S. 333. But see now 24 & 25
Vict. c. 100, ss. 58, 59.
A prisoner was indicted for the
murder of her infant child by poi-
son. She purchased a bottle of
laudanum, and directed the person
who had the care of the child to
give it a teaspoonful every night.
That person did not do so, but
put the bottle on the mantle-piece,
where another little child found it,
ftnd gave part of the contents to
the prisoner's child, who soon after
died: — Held, that the administer-
ii^ of the laudanum by the child
was as much, in point of law, an
administering by the prisoner, as if
she herself bad actually adminis-
tered it with her own hand. Heg.
V. Mchael, 9 C. & P. 356 ; 2 M. C.
C. 120.
Kitting Gamekeepers and Others,^
—If gamekeepers attempt to appre-
hcni a gang of night poachers, and
one of the gamekeepers is shot by
one of the poachers, this will be
murder in all the poachers, unless
it can be proved that either of them
separated himself from the rest, so
as to shew that he did not join in
the act. Rex v. Edmeads^ 3 C. <fe
P. 390— Vaughan.
Where gamekeepers had secured
two poachers, and they, having sur-
rendered, called to a third, who came
up and killed one of the gamekeep-
ers, this is murder in all, though the
two struck no blow, and though the
gamekeepers had not announced in
what capacity they had apprehended
them. Rex v. Whithame, 3 C. & P.
394 — Vaughan.
Under 9 Geo. 4, c. 69, s. 2, a
gamekeeper may apprehend poach-
ers, thouffh there are three or more,
and found armed; for though s. 2 only
authorises apprehending for what are
offences under s. 1, and when there
are three or more armed, they are
punishable under s. 9 ; yet what is
punishable under s. 9 is nevertheless
an offence under s. 1, though the
circumstances of aggravation make
it liable to a greater punishment;
and if the gamekeeper is killed in
the attempt to apprehend, the of-
fender will be guilty of murder,
though the gamekeeper had previ-
ously stmck the offender, or any of
his party, if he struck in self-defence
only, and to diminish the violence
illegally used against him, and not
vindictively to punish. Rex v. Bally
1 M. C. C. 330.
If a gamekeeper attempting law-
fully to apprehend a poacher, is met
with violence, and in opposition to
such violence and in self-defence
strikes the poacher, and then is kill-
ed by the poacher, it will be mur-
der. Rex V. Baa, 1 M. C. C. 333.
A servant of C. attempted to ap-
prehend A., who was out night-
poaching in a wood, and the serv-
ant was killed by A. C. was neith-
er the owner nor the occupier of the
wood, nor the lord of the manor, C.
having only the permission of the
owner of the wood to preseri'e game
there: — ^Held, that this was man-
slaughter only in A. Rex v. Addis,
6 C. & P. 388r-Patteson.
•
332
MURDER, MANSLAUGHTER, ETC.
More than nine men, of whom
seven were armed with guns, being
out at night in pursuit of game,
were met, as they passed through a
field from one wood to another,- by a
party of gamekeepers without fire-
arms, but who at once assaulted
them with sticks ; and one of them
with a dangerous weapon, a fiail,
likely to infiict a deadly injury,
with which he struck one of the
poachers, upon which another of
them fired and killed him. The
grand jury was directed to throw
out bills for murder against two of
the men, one of whom was supposed
to have fired the fatal shot, and the
whole nine were indicted for man-
slaughter. There was evidence that
they all stood in a row and cried
"shoot":— Held, that whether or
not the man who fired the shot
could be identified, none of the pris-
oners would be guilty unless parties
to the act of firing ; and that though
their being in a row and crying out
"shoot" was evidence that they
were parties to the act, it was only
evidence, and its effect would de-
pend upon how far all the circum-
stances shewed that the firing was
in pursuance of a common design to
shoot, or only in consequence of a
particular personal encounter. Beg,
V. Luck, 3 F. & F. 483— Byles.
If the servant of the owner of
property found a party actually
committing an ofience against 7 &
8 Greo. 4, c. 29, and apprehended
him under s. 63, and, while taking
the party to a magistrate, such par-
ty killed him, this will be murder ;
but if the servant either did not see
him in the actual commission of the
offence, or is taking him to any other
place than before a magistrate, it
will not be murder. Rex v. Curran,
3 C. & P. 397— Vaughan.
KiUing Officers of Justice,^ — In
order to render the killing of an of-
ficer of justice, whether he is au-
thorized in the right of his ofiice, or
by warrant, amount to murder upon
his interference in an affiray , it is nec-
essary that he should have ^ven
some notification of his being vbl
officer, and of the intent* with whidi
he interfered* lUx v. Gcrdoh^ 1
East, P. C. 31^6, 352.
KUling an officer will amount to
murder, though he had no warrant,
and was not present when any feU
ony was committed, but takes the
party upon a charge only ; and
though such charge does not in
terms specify all the particulars nec-
essary to constitute the felony. Bn
V. Ford, R. & R. C. C. 329.
Killing an officer who attempts
to arrest a man will be murder,
though the officer had no* warrant,
and though the man has done no-
thing for which he is liable to be
arrested, if the officer has a charge
against him for felony, and the w%n
knows the individual to be an of-
ficer, though the officer does not
notify him that he has such a charge.
Bex V. Woolmer, 1 M. C. C. 334.
If a person is playing music in t
public thoroughfare, and thereby
collects together a crowd of people,
a policeman is justified m dearin^
him to go on, and in laying his hand
on him and slightly pushmg him, if
it is only done to give effect to hi»
remonstrance ; and if the person on
so small a provocation strikes the
policeman with a dangerous weapon
and kills him, it will be murder;
but otherwise, if the policeman gives
him a blow and knocks him doim.
Beg, V. Hagan, 8 C. 4 P. 176— Bd-
land and Coltman.
If a police constable, on being
sent for at a late hour of the night
to clear a beer-house, does so, and
one of the persons, on leaving the
house, and being told to go away,
refuses to do so, and uses threatai-
ing langua^, the constable is justi-
fied in laymg hands on him to re-
move him ; and if he cuts the con-
stable with a knife, with intent to
do grievous bodily barm, this is ft
capital offence, and the fact of the
constable having laid bands on the
MURDER.
833
pariy would not have reduced the
crime to manslanghter, if death had
ensued. Rex v. Hems^ 7 C. & P. 312
—Williams.
If a ship's sentinel shoots a man
becanse he persists in approaching
the f^hip when he has been ordered
not to do so, it will be murder un-
less such an act was aecesF^ary for
the ship's safety. JRex v. Thomas^
1 Russ. C. & M. 823.
A police officer found N. with po-
tatoes under his shirt, which had been
recently dug from the ground, and
apprehended him. The policeman
called 0, to assist him ; O. did so^
and a rescue being attempted, O.
was struck by A., who went away,
and 0. was afterwaixls killed by
other persons, who attempted the
regcue: — Held, that the police of-
ficer had no right to apprehend N.,
and that the killing of O., therefore,
did not amount to murder, and that,
on an indictment for murder, A.
could not be convicted of an as-
oult. Beg. v. Phelps, Car. & M.
180 ; 2 M. C. C. 240.
K. and D. were arrested in Eng-
land upon Irish warrants whicn
were not backed in England, and
which did not specify with what
j^rticular felony they were charged,
iley were brought before a magis-
trate and remanded. When bemg
conveyed ^^in a police-van through
the streets of Manchester in the
daytime, the now prisoners, armed
with revolvers, attacked the van,
the poUce-sergeant in charge of it
was shot by one of the prisoners,
and K. and D. escaped. Upon the
trial of the prisoners for wilful mur-
der, it was contended that the ar-
rest of K. and D. bein^ illegal by
reason of the informality of the
warrants, the oflfence committed
amounted only to manslaughter : —
Held, that in view of the facts that
K. and D. had been for some time
in custody, that the informality of
the warrants was unknown to the
1 prisoners, and that they deliberate-
y, and with premeditation, devised
and carried out the attack which
resulted in the death of the police-
sergeant, the offence was murder
and not manslaughter. Reg. v.
Allen, 17 L. T., N. S. 222— Black-
bum and Mellor.
A police-officer is protected if he
acts upon a warrant, even though
that warrant is informal ; and if he
is killed when so acting by a pre-
meditated attack, with a view to a
rescue, the crime will be murder;
the proi)er course being to apply to
a court of law for a habeas corpus
to have the prisoner discharged from
custody. lb.
The defendant was arrested for
misdemeanor; he resisted the appre-
hension and killed the officer : —
Held, that it was not murder, the
officer not having the warrant for
his arrest at the tune the arrest was
made. Reg. v. Chapman, 12 Cox,
C. C. 4.
An attempt to arrest for misde-
meanor under a warrant is not law-
ful, when the officer at the time of
the arrest cannot produce the war-
rant, lb.
Suicides,'] — He who kills another
upon his desire or command, is, in
the judgment of the law, as much a
murderer as if he had done it mere-
ly of his own head. Mex v. Savjyer,
1 Russ. C. & M. 670.
If a man encourages another to
murder himself, and is present abet-
ting him while he does so, such per-
son is guilty of murder as principal.
liex V. Dyson, R. & R. C. C. 523»
If two encourage each other to
murder themselves together, and
one does so, but the other fails in
the attempt upon himself, he is a
principal in the murder of the other.
lb.
But if it is uncertain whether the
deceased really killed himself, or
whether he came to his death by ac-
cident before the moment when he
m^eant to destroy himself, it will not
be murder in either. lb.
A person cannot be tried for in-
334
MURDER, MANSLAUGHTER, ETC.
citing another to commit suicide,
altliough that other cfommits suicide.
Heg, V. Leddington, 9 C. & P. 79 —
Alderson.
If two persons mutually agree to
commit suicide together, and the
means employed to produce death
only take effect on one, the survivor
will, in point of law, be guilty of
the murder of the one who died.
Beg, V. Alison, S C. & P.. 4 18— Pat-
teson.
If a woman takes poison with in-
tent to procure a miscarriage, and
dies of it, she is guilty of self-mur-
der, whether she was quick with
child or not ; and a person who fur-
nished her with the poison for that
purpose, will, if absent when she
took it, be an accessory before the
fact only. Eex v. Russell, 1 M. C.
C. 356.
An attempt to commit suicide is
not an attempt to commit murder
within 24 & 25 Vict. c. 100, and is
not merged in any of the felonious
attempts to commit murder made
punishable by that act, but remains
a misdemeanor at common law tri-
able by the court of quarter ses-
sions. Meg, V. Burgess, L. & C. 258;
9 Cox, C. C. 247 ; 32 L. J., M. C.
55; 11 W. R. 96; 7 L. T,, K S.
472.
In Duelling,'] — When, upon a pre-
vious agreement, and after there has
been time for the blood to cool, two
persons meet with deadly weapons,
and one of them is killed, the party
who occasions the death is guilty of
murder, and the seconds also are
equally guilty ; and with respect to
others shewn to be present, the
question is, did they give their aid
and assistance by their countenance
and encouragement of the principals
in the contest ? Mere presence will
not be suiiicient; but if they sustain
the principals, either by advice or
assistance, or go to the ground for
the purpose of encouraging and for-
warding the unlawful contlict, al-
though they do not say or do any-
thing, yet, if they are pi-esent assist-
ing and encouraging by their pr».
ence at the moment when the fifttal
shot is fired, they are, in law, guilty
of the crime of murder. Beg, y,
Toung, 8 C. & P. 644— Vaugban
and Alderson.
If A. has formed a deliberate de-
sign to kill B., and after this thej
meet and have a quarrel, and numj
blows pass, and A. kills B., this will
be murder, if the jury is of opmioo
that the death was in consequence
of previous malice, and not of the
sudden provocation. Beg. v. Kirk-
ham, 8 C. & P. 115— Coleridge.
The defendant was indicted for
murder. The evidence was, the
deceased struck the defendant, a
reconciliation took place ; the de-
fendant going to his home, sudden-
ly stops, and by his remarks sems
to invite a renewal of the agsjreft.
sion ; the deceased, acceptin^lt as
a challenge, went after the prisoner,
who stabbed him. If the reconcil-
iation was feigned, and the reneir-
al was for the purpose of using a
deadly weapon, there is evidence of
implied malice to sustain the charge
of murder. Beg, v. Sdten, 11 Cox,
C. C. 674.
Where two persons go out to
fight a deliberate duel, and death
ensues, all persons ivho are present,
encouraging and promoting that
death, will be guilty of murder.
And the person who acted as the
second of the deceased person in
such a duel may be convicted of
murder, on an indictment chargine
him with being present, aiding ana
abetting the person by whose act
the death of his principal was occa-
sioned. Beg, V. Cuddy, 1 C. & E.
210— Williams and Rolfe.
2. Manslaughter,
ASfa^c.]— By 24 &. 25 Vict c.
100, s. 7, " no punishment or for-
*' feiture shall bo incurred by any
" person who sliall kill another by
^^ misfortune, or in his own defence,
MANSLAUGHTER.
335
" or in any other manner without
" felony."
By 9 Geo. 4, c. 31, ^e 1 Jac. 1, c.
8, and 8 Geo. 4, c. 38, were repealed,
W 24 <jb 25 Vict. c. 95, s. 1, re-
pecJs 9 Geo. 4, c. 31.
What w MarislauffhterJ] — See L.
C. J, TindaPs charge, 5 C. & P.
261, n.
Manslaughter is homicide, not un-
der the influence of malice. Hex v.
Taylor, 2 Lewin, C. C. 217— .Taun-
ton.
If persons cover another with
straw and set fire to it, intending to
do him a serious injury, and he dies,
it is murder, though they did not
intend to kill him. But tf they in-
tended the act in sport, and merely
to frighten him, it is manslaughter.
^ringion's case, 2 Lewin, C. C 217
— Patteson.
% the Oommtsston of Negligent or
wdawfid Act8,'\ — ^That which con-
stitutes murder when by design,
and of malice prepense, constitutes
manslaughter, when arising from
culpable negligence. Reg, y, Hughes,
Bears. & B. C. C. 248 ; 7 Cox, C.
C. 301 ; 3 Jur., N. S. 696 ; 26 L. J.,
it C. 202.
The deceased was with others
employed in walling tfie inside of a
shaft. It was the duty of the pris-
oner to place a stage over the mouth
of the shaft, and the death of the
deceased was occasioned by the
negligent omission on his part to
perform such duty. He was con-
victed of manslaughter: — ^Held, that
the conviction was right. Ih,
Although it is manslaughter
where the death was the result of
the joint negligence of the prisoner
and others ; yet it must have been
the direct result, wholly or in part,
of the prisoner's negligence, and his
neglect must have been wholly or
in part the proximate and efficient
cause of the death, and it is not so
where the negligence of some other
person has intervened between his
act or omission and the fatal result.
Reg. V. Ledger, 2 F. & F. 857—
Erie.
A party causing the death of a
child, by giving it spirituous liquors
in a quantity quite unfit for its ten-
der age, is guilty of manslaughter.
Rex V. Martin, 3 C. & P. 211—
Vaughan.
A husband seized his wife, a
heavy, corpulent woman, and dash-
ed her violently on the brick floor
of a kitchen, and then struck her
with the tongs on her thigh, inflict-
ing a severe bruise, but no injury in
itself fatal. She languished ten
days, during which she, at his de-
sire, and in effect driven away by
him, sought shelter at a friend's,
where, at the end of that time, she
died ; he providing no medical aid,
and no doctor visiting her until the
day before her death, when it was
too late. The medical evidence
shewed that she was diseased, but
that she might have lived for an in-
definite period ; and that the effect
of the wliole of the violence was to
hasten her death, by a shock to the
nervous system calculated to ag-
gravate the disease : — Held, that if
this was so he was guilty of man-
slaughter. Reg, V. Murton, 3 F. &
F. 492— Byles.
If two or more persons go out
together with a purpose to commit
a breach of the peace, and, in the
course of the accomplishment of that
common design, one of them kills a
man, the other also is guilty of
manslaughter. Reg, v. Harrington,
5 Cox, C. C. 231.
Wherever death ensues from in-
juries inflicted by parties engaged
in any illegal act, an indictment for
manslaughter will lie, even though
it appears that the deceased had
materially contributed to his death
by his own negligence. Reg, v.
Longhottom, 3 Cox, C. C. 439 —
Rolfe.
Tlie prisoner was convicted of
manslaughter. It appeared that he
procured sulphate of potash, and
gave it to his wife, intending her to
836
MURDER, MANSLAUGHTER, ETC.
take it for the purpose of procuring
abortion, and that she, believing
herself to be pregnant, although in
reality she was not, took the sul-
phate of potash, in his absence, and
died from its effects: — Held, that
the conviction was right. JReg. v.
Gaylor, Dears. & B. C. C. 288 ; 7
Cox, C. C. 253.
If it is the duty of a person, as a
ground bailiff of a mhie, to cause
the mine to be properly ventilated
by causing air-headings to be put up
where necessary, and by reason of
his omission in this respect another
is killed by an explosion of fire-
damp, such person is guilty of man-
slaughter, if by such liis omission he
was guilty of a want of ordinary
and reasonable precaution; and if it
was his plain and ordinary duty to
have caused an air-heading to have
been made, and a man using reason-
able diligence would have done it.
Reg, V. Haines^ 2 C. & K. 368 —
Maule.
It is no defence in a case of man-
slaughter that the death of the de-
ceased was caused by the negligence
of others as well as by that of the
prisoner ; for if the death of the de-
ceased is caused partly by the neg-
ligence of the pnsoner and partly
by the negligence of others, the pris-
oner and all those others are guilty
of manslaughter. lb.
Trustees appointed under a local
act for the purpose of repairing
roads in a district, with power to
contract for executing such repairs,
are not chargeable with manslaugh-
ter if a person using one of such
roads is accidentally killed in conse-
quence of the roads being out of re-
pair through neglect of the trustees
to contract for repairing it. Reg.y,
Pocock, 17 Q. B. 34 ; 5 Cox, C. C.
172.
A woman who kno^s she is to be
confined, and who wilfully abstains
from taking the necessary precau-
tions to preserve the life of the child
after its birth, in consequence of
which the child dies, is notguilty of
manslaughter. Beg, v. MigkU^l
F. <fc F. 46— Cockbum.
Generally, it may be laid dovn,
that, where one by his negligence
has contributed to the death of an-
other, he is guilty of manslaughter.
Reg, V. SwindaU, 2 C. & K. 230 -
Pollock.
Where a man and his wife are
living apart by mutual contient, he
granting hex a fixed allowance,
which is regularly paid, he is not
prima facie bound to supply her
with shelter ; but if he is made ac-
quainted with the fact that slie is
without shelter, and refuses to pro-
vide her with it, in consequence of
which her death ensues, semble,
that he is guilty of manslaughter.
Reg, V. PlummeTy 1 C. & K. 600 ;
8 Jur. 921— Gumey.
An iron-founder being employed
by an oilman and a dealer in ma-
rine stores to make some cannon, to
be used on a day of rejoicing, and
afterwards to be put into a sailing-
boat ; after one of them had bun^,
and been returned to him in con.se.
quence, sent it back in so imperfect
a state, that on being fired it burst
again, and killed a third person :—
Held, that the maker was guilty of
manslaughter. Rex v. Garry 8 C.
& P. 1 63, n.— Bayley, Patteeon and
Gumey.
B. was a person who made fire-
works, contrary to 9 & 10 Will. 3, c.
7. He kept a quantity of combust-
ibles at his house, for the purpose of
his business, as a maker of fireworks;
and during his absence, through ihc
negligence of his servants, a fire
broke out amongst such combust-
ibles, and a rocket becoming thereby
ignited flew across a street, setting
tire to a house opposite, caused the
death of a person therein : — Held,
that a conviction of manslaughter
was wrong, as the death wrvs not
occasioned by the unlawful act of
B., but by the negligence of his
servants. Reg. v. Bennett^ Bell, C.
MANSLAUGHTER.
337
C. 1 ; 4 Jur., N. S. 1088 ; 28 L. J.,
M. C. 27 ; 7 W. R. 40 ; 32 L. T.
110;8Cox,C. C. 74.
On an indictment for manslaugh-
ter by causing a iire, it is necessary,
in order to sustain the case by an
exhaustiye process of proof, to shew
that the fire could not have arisen
from any other cause than that
charged ; it is necessary to leave no
considerable interval of time in
which some other cause might have
acted. Reg. v. Gardner^ 1 F. &
F. 669— Bram well.
Where A., having a right to the
possession of a gun whi^h was in
the hands of the deceased, and
which he knew to be loaded, at-
tempted to take it away by force,
and in the struggle which ensued
the gun went ok accidentally and
caused the death of the deceased : —
Held, that as the death was caused
by the discharge of the gun, which
was the result of the unlawful act of
A., he was guilty of manslaughter.
%. V. Ardier, 1 F. & F. 351 —
Campbell.
Where a butcher employed the
deceased, a shepherd boy, to tend
some sheep which were penned, and
he negligently suffered some of
them to escape through the hurdles;
and the butcher, upon seeing it, ran
towards the boy, and, taking up a
stake, which was lying on the
groimd, threw it at him, and inflict-
ed an injury of which he died ; —
Held, that under the circumstances
it was a question for the jury
whether it was murder or man-
slaughter ; they found the latter.
lUx V. Wiggs, 1 Leach, C. C. 379,
n.
A kick is not a justifiable mode
of turning a man out of your house,
though he is a trespasser; there-
fore, if it causes death it is man-
slaughter. Wild '« casCy 2 Lewin, C.
C. 214 — Alderson.
A man is not criminally respons-
ible for the death of another party
caused by his negligence, where he
would not have been civilly liable
in an action at the suit of the
party injured, if the injuries sus-
tained had fallen short of causing
his death. Meg, v. Birchcdl, 4 F. &
F. 1087— Wilies.
The private servant of the owner
of a tramway crossing a public road
was entrusted to watch it: while he
was absent from his duty an acci-
dent happened, and a person was
killed. The private act did not re-
quire the owner to watch the tram-
way ; — Held, that there was no duty
between the owner and the j)ublic,
and, therefore, his servant was not
guilty of negligence, so as to make ,
him guilty of manslaughter. Reg.
V. Smith, 11 Cox, C. C. 210— Lush.
A person was indicted for man-
slaughter. The evidence was that
he struck the deceased twice with a
heavy stick, that he afterwards left
him asleep by the side of a small
fire in a country laue during the
whole of a frosty night in the month
of January, and the next morning,
finding him just alive, put him un-
der some straw in a barn, where his
body was found some months after-
wards. The jury was directed that
if death resulted from the beating
or from the exposure during the
night in question, such exposure be-
ing the result of criminal negligence,
or from the prisoner leaving the
boy under the straw ill, but not
dead, the prisoner was guilty of
manslaughter. JReg. v. Martin, 11
Cox, C. C. 136— Bvles.
If after a reconciliation, the ag-
gi^essor renews the contest, or at-
tempts to do so, and the other hav-
ing a deadly weapon about him, on
such sudden renewal of the provo-
cation, uses it without previous in-
tent to do so, there is evidence
which may reduce the crime to
manslaughter. Reg, v. Seken, 11
Cox, C. C. 674.
Unintentional Acts.^ — Where a
mother, being angry with one of her
children, took up a small piece of
iron used as a poker, and on hie
338
MURDER, MANSLAUGHTER, ETC.
running to the door of the room,
which was open, threw it after him,
and hit another child who hap-
pened to be enteripg the room at
the moment, in consequence of which
he died : — Held, to be manslaughter,
although it appeared the mother
had no intention of hitting the child
with whom she was angry, and only
intended to frighten him. Rex v.
C(mner, 7 C. & P. 438-~Parke &
Graselee.
A lad, as a frolic, without any
intention to do any harm to any
one, took the trap-stick out of the
• front part of a cart, in consequence
of which it was upset, and the car-
man who was in it, putting in a
sack of potatoes, wns pitched back-
wards on the stones and killed : —
Held, that the lad was guilty of
manslaughter. Hex v. SvUivan^ 7
C. & P. 641--Gumey and Wil-
liams.
A drunken man went into a shop,
and in a .joke seized a boy round
tlie neck, and began spinning him
round until tliey got together into
the street. The boy having at
length broken away, the prisoner,
in consequence, staggei'ed into the
road and fell against a woman who
was passing, knocked her down :
she shortly after died of the in-
juries which she had received. The
boy made no resistance to the pris-
oner's treatment of him, believing
that it was merely done in play : —
Held, that there was no evidence of
manslaug^hter. Heg. v. Bruce^ 2
Cox, C. C. 262.
In course of Scuffles and Alter-
cations.']— Tlie killing a person in
an affray, by another who was in a
violent heat and passion at the time,
will not amount to mui-der, but
manslaughter. Hex v. liankin^ R.
& R. C. C. 43.
If, on a sudden quarrel between
two parties of keelmen and soldiei*s,
a blow intended for an individual
of one party would, if death en-
sued, have amounted only to man-
slaughter; it will be manslaughter
though bv accident it kills another.
Hex V. Brown^ 1 Leach, C. C. 148;
1 East, P. C. 231,245, 274.
If, on any sudden quarrel, blows
pass without any intention to kill
or injure any one materially, and in
the coui'se of the scuffle, after the
parties are heated by the contest,
one kills the other with a deadly
weapon, it is only manslaughto:.
Bex V. SnotOy 1 Leach, C. C. 151;
1 East, 244. And see Bex v. Tay-
lor, 0 BuiT. 2793.
If a pei'son receives a blow, and
immediately avenges it with any
instiniment he may happen to have
in his hand, and death ensues, this
will be only manslaughter, provided
the fatal blow is to be attributed to
the passion of anger arising from
the previous provocation. Bex v.
Thomas, 7 C. & P. 817— Parke.
It is not every slight provoca-
tion, even by a blow, which will,
when the party receiving it stnkes
with a deadly weapon and death
ensues, reduce the crime from mur-
der to manslaughter. Bex v. Lynch^
5 C. & P. 324.
The prisoner having, after a tri-
fling and casual altercation, sus-
tained several blows from the de-
ceased (a stranger to him), instantly
stabbed him with a clasp knife he
had about him : — Held, that it was
for the jury, whether or not the
blow was struck in the heat of
sudden passion, without previous
malice, so as to reduce the offence
to manslaughter. Beg. v. Eaglt^
2 F. & F. 827— -Erie.
Where one having had his pocket
picked, seized the oflfender, and,
being encouraged by a concourse of
people, threw him into an adjoining
pond by way of avenging the tbeu
by ducking him, but without any
apparent intention of taking away
his life, and the pickpocket was
drowned: — Held, that it only
amoui^ted to manslaughter. B&^
V. Fray, 1 East, P. C. 236.
When two or more, one of
MANSLAUGHTER.
389
whom has received the provoca-
tion of a blow, are charged with
marder, and one of them has re-
ceived, a provocation, (as a blow)
which would reduce homicide to
'manslaughter, and it cannot be
proved which of them inflicted the
fatal blow, neither of them can be
comicted of murder, without a
proof of a common design to in-
flict the homicidal act ; nor of man-
slaughter, without proof of a com-
mon design to inflict unlawful vio-
lence. Meg. v. Turner^ 4 F. & F.
339— Channell.
In course of Fightingi] — All
persons who even by their presence
encourage a fight, from which death
ensues to one of the combatants,
although they neither say nor do
anything, are guilty of manslaugh-
ter. But if the death is caused,
not by blows given in the fight
itself, but by other parties breaknig
the ring and striking the deceased
with bludgeons, the persons who
merely encouraged the fight . by
their presence are not answerable.
Bex V. Mnrphy, 6 C. <fc P. 103
— littledale and Bolland.
A. was fighting with his brother;
and, X6 prevent this, B. laid hold of
A., and held him down upon a
locker on board the barge in which
they were, but struck no blow. A.
subbed B.:— Held, that if B. did
nothmg more than was suflicient
to prevent A. from beating his
brother, and had died of this stab,
the offence of A. would have been
murder ; but that if B. did more
than was necessary to prevent the
beating of A.'s brother, it would
have been manslaughter only. Rex
V. Bourne, 5 C. & P. 1 20— Gaselee
and Parke.
If, after an interchange of blows
on equal terms, one of the parties,
on a sudden and without any such
intention at the commencement of
the affray, snatches up a deadly
weapon and kills the other party
with it, sucb killing will only
amount to manslaughter. Bex v.
Anderson, 1 Russ. C. & M. 731 —
Bayley.
But if a party, under colour of
fighting upon equal terms, uses
from the beginning of the contest a
deadly weaix)n without the knowl-
edge of the other party, whom he
kills with such weapon ; or if at
the beginning of the contest he pre-
pares a deadly weapon, so as to
have the power of using it in some
part of the contest, and accordingly
does so and kills the other party;
the killing in both these cases will
be murder. Hex v. Whitdey, 1
Lewin, C. C. 173— Bayley.
Where there had been mutual
blows, and then, upon one of the
parties being pushed down on the
ground, the other stamped upon his
stomach and belly with great force,
and thereby killed him, it was con-
sidered only to be manslaughter.
Bex V. Ayes, R. & R. C. C. 166.
But in Bex v. Thorpe, 1 Lewin, C.
C, 171, Bayley, J., intimated that
death caused by up-and-down-fight-
ing would be murder.
If two persons quarrel and be-
gin to fight on equal terms, where
one, finding himself not equal to
his adversary, runs away, and be-
ing pursued, draws his knife, and,
when overtaken by his advei"sary,
stabs him ; if death ensues, this
would be only manslaughter; but
if, before the conflict began, the
party had drawn his knife in cool
blood, in case death had ensued,
the offence would have been mur-
der. Bex V. Kessal, 1 C. & P. 437
—Park.
By Soldiers in the Exercise of
their Brof€ssio9i,] — A gun dis-
charged in the ordinary and regu-
lar course of ball practice by an
artilleryman in a garrison town,
missed the mark, and killed a man
who was lawfully passing near the
spot in a boat, the place being a
public one, and open to all her
Majesty's subjects. The artillery-
^ I
340
MURDER, MANSLAUGHTDR, ETC.
man who fired the gun was acting
under the command of a superior
officer, who was acting in obedi-
ence to the general orders of the
major-general : — Held, that the
major-general was not guilty of
manslaughter. Reg, v. Ilutchin-
son, 9 Cox, C. C. 555 — Byles. But
see 3 Russ. C. & M. 660.
In Arresting mider Process of
Law,'] — ^Attempting illegally to ar-
rest a man is suificient to reduce
killing the person making the at-
tempt to manslaughter, though the
arrest was not actually made, and
though the prisoner had armed
himself with a deadly weapon to
resist such attempt, if the prisoner
was in such a situation that he
could not have escaped fi'om the
arrest ; and it is not necessary that
he should have given warning to
the person attempting to arrest him
before he struck the blow. Hex v.
Thompson, 1 M. C. C. 80.
If a constable takes a man with-
out warrant upon a charge which
gives Iiim no authority to do so,
and the prisoner runs away and is
pursued by J. S., who was with
the constable all the time, and
charged by him to assist, and the
man kills J. S. to prevent his re-
taking him, it will not be murder,
but manslaughter only ; because, if
the original an*est was illegal, the
recaption would have been so like-
wise. Hex V. Gurvan, 1 M. C. C.
132.
Where a common soldier stabbed
a Serjeant in the same regiment
who had arrested him for some
alleged misdemeanor: — Held, that
as the articles of war were not pro-
duced, by which the arrest might
have been justified, it was only
manslaughter, as no authority ap-
peared for the arrest. Hex v.
WhUhers, 1 East, P. C. 295, 360.
Two private watchmen, seeing
the prisoner and another pei*son
with two carts laden with apples,
went up to them, intending, as soon
as they could get asastance, to se-
cure them ; one of the watchmen
walked beside the prisoner, and the
other watchman ' beside the other
person, at some distance from the
prisoner. The other person wound-
ed the watchman who was n^r
him : — Held, that the prisoner could
not be convicted of this wounding,
unless the jury should be satisfied
that the prisoner and the other
person had not only scone out with
a common purpose oT stealing ap-
ples, but also had the common pur-
pose of resisting, with extreme
violence, any person who might
attempt to apprehend them. S&c
V. CoUison, 4 C. & P. 565— Gar-
row.
A warrant leaving a blank for
the christian name of the pem)n to
be apprehended, and giving no rea-
son for omitting it, but describing
him only as the son of J. S. L., (it
appeared that J. S. L. had four
sons, all living in his house), and
stating the charge to be for assault-
ing A., without particularizing the
time, place, or any other circum-
stances of the assault, is too gen-
eral and unspecific. A resistance
to an arrest thereon, and killing the
person attempting to execute it,
mil not be murder. Hex v. Hood,
1 M. C. C. 281 ; S. P. Mow v.
Hush, 2 Scott, N. R. 85 ; 1 M.&
G. 775; 1. Drink. 15.
If a servant of A. (who is not
lord of the manor) finds a ni^t
poacher on the lands of B., and
pursues him with intent to take
him, this is such an attempt at as
illegal arrest, that if the poacher
shoots the servant with the g^
which he has in his hand,' and kills
him, this will be manslaughter only.
Hex V. Davis, 7 C. & P. 785-
Parke.
A constable, having a warrant
to apprehend A., gave it to his son,
who, in attempting to arrest A,
was stabbed by him with a knife
which A. happened to have in his
hand at the time, the constable
MAKSLAUGHTER.
341
then being in sight, bat a quarter
of a mUe off; — Held, that his arrest
was ill^l ; and that, if death had
ensued, this would have been man-
slaughter only, unless it was shewn
that A. had prepared the knife be-
forehand to resist the illegal vio-
lence. jRex V. I^cUience, 7 C. & P.
775-Parke.
In Driving Carriages or Hbrsesi]
—If a person is driving a cart at
an unusually rapid pace, and drives
over another and kills him, he is
guilty of manslaughter, though he
called to the deceased to get out of
the way, and he might have done
80, if he had not been in a state of
intoxication. Rex v. Walker y 1 C.
* P. 320— Garrow.
A foot passenger walking at
lamplight in the carriage road
along a public highway, when the
owner of a cart, who was proved
to be near-sighted, drove along at
the rate of eight or nine miles an
hour, sitting at the time on a few
sacks laid on the bottom of the
cart, and ran over the foot passen-
ger and killed him : — Held, that he
was guilty of such carelessness as
amounted to the crime of man-
daughter. Rex V. Grout, 6 C. &
P. 629.
If the driver of a carriage is
racmg with another carriage, and,
from being unable to pull up his
horses in time, the first-mentioned
carriage is upset, and a person
thrown off it and killed, this is
manslaughter in the driver of the
carriage. R^ v. Timmim, 7 C.
& P. 499— Patteson.
If A. and B. are riding fast along
a highway, as if racing, and A.
rides by without doing any mis-
diief, but B. rides against the horse
of C, whereby C. is thrown and
killed ; this is not manslaughter ii>
A. Rex V. Mastin, 6 C. & P. 396
—Patteson.
If each of two persons is driving
a cart at a dangerous and a furious
lute, and they are inviting each
other to drive at a dangerous and
a furious rate along a turnpike
road, and one of the carts runs
over a man and kills him, each of
the two persons is guilty of man-
slaughter; and it is no ground of
defence that the death was partly
caused by the negligence of the
deceased himself, or that he was
either deaf or dumb at the time.
Reg. V. SwindaU, 2 C. & K. 230 ;
2 Cox, C. C. 141— Pollock.
A driver of a spring-cart, stand-
ing in the cart and driving along a
public road without reins, but not
driving furiously, when a child runs
across the road before the cart, and
is killed by the wheel passing over
it, is not guilty of manslaughter,
unless he could have saved the life
of the child if he had been driving
with the reins in his hand. Reg, v.
BaUoway, 2 Cox, C. C. 273.
If the driver of a conveyance
uses all reasonable care and dili-
gence, and an accident happens
through some chance which he
could not foresee or avoid, he is
not to be held liable for the results
of such accident. Reg. v. Murray,
5 Cox, C. C. 509.
The fact that streets are usually
crowded from any public proces-
sion, or other cause, instead of ex-
cusing a driver when proceeding at
his ordinary pace, and with ordi-
nary care, requires him to be par-
ticularly cautious, and may tend to
render him criminally answerable
for any accidents ensuing from driv-
ing at a rate, and with those pre-
cautions, which he might have ordi-
narily observed. lb.
By letting loose Vicious Ani-
mals.]— ^A man who having a horse,
which he knows to be vicious and
dangerous, turns it out upon a com-
mon through which, to his knowl-
edge, pass much-frequented public
footpaths, which are not fenced off,
is guilty of culpable negligence,
and if the horse kills any one pass-
ing over the common, he may be
842
MURDER, MANSLAUGHTER, ETC.
convicted of manslaughter ; nor is
it any defence that the deceased
had strayed from the way, where
he is still so near it that the jury
cannot say whether he is on or off
the path. Reg, v. Dant^ L. & C.
567 ; 10 Cox, C. C. 102 ; 11 Jur.,
N. S. 549 ; 34 L. J., M. C. 119 ; 13
W. R. 663 ; 12 L. T., N. S. 396.
In Navigating Vessels,'] — Those
who navigate the river Thames im-
properly, either by too much speed
or oy negligent conduct, are as
much liable, if death ensues, as
those who cause it on a public high-
way on land, either by furious driv-
ing or by negligent conduct. Reg,
V. Taylor, 9 C. & P. 672--Parke.'
To make the captain of a steam
vessel guilty of manslaughter, in
causing a person to be drowned by
running down a boat, the prosecu-
tor must show some act done by the
captain;^ and a mere omission on
his part, in not doing the whole of
his duty, is insufficient. Rex v.
Green, 7 C. & P. 156— Park and
Alderson.
But if there is sufficient light, and
the captain of a steamer is either at
the helm or in a situation to be giv-
ing the command, and does that
which causes the injury, he is guilty
of manslaughter. Ih,
The captain and pilot of a steam
boat were both indicted for the
manslaughter of a person who was
on board of a smack, by running
the smack down. The running
down was attributed on the part of
the prosecution, to improper steer-
age of the steam boat, arising from
there not being a man at the bow
to keep a look-out at the time of
the accident. It was proved that
there was a man on the look-out
when the vessel started, about an
hour previously. According to one
witness, the captain and pilot were
both on the bridge between the
paddle-boxes ; according to another,
the pilot was alone on the paddle-
box : — Held, that there was not
such personal misconduct on the
part of either as to make them guil-
ty of felony. Rex V. AUen,! C. &
P. 153 — Park and Alderson.
Persons on board a ship are nec-
essarily subject to something Uke
a despotic government, and it is ex-
tremely important that the law
should regulate the conduct of those
who exercise dominion over them.
Reg, V. LeggeU, 8 C. <fc P. 191—
Alderson, Williams, and Coltman.
Therefore, in a case of manslaugh-
ter against the captain and the
mate of a vessel for accelerating the
death of a seaman, really in ill
health, but who, they alleged, they
believed to be a skulker, the ques-
tion will be in determining whether
it is a slight or an aggravated case,
whether the phenomena of the death
were such as would excite the at-
tention of reasonable and humane
men ; and in such a case, if the de-
ceased is taken on board after he
was discharged from an hospital, it
is important to inquire whether he
was sent on board by the surgeon
of the hospital, as a person in a fit
state of health to perform the duties
of a seaman. lb.
A. being on board a ship, and R
in a boat alongside, they had a dis-
pute about the payment for some
goods, both being intoxicated. A,
to get rid of B., pushed away the
boat with his foot ; B. reaching out,
to lay hold of a barge, to prevent
his boat from drifting away, over-
balanced himself, and fell into the
water and was drowned. A was
charged with manslaughter : — ^Held,
that these facts did not constitute
that offence. Rex v. Waters, 6 C.
& P. 328— Park and Patteson.
JBy Railway Policemen,'] — In an
indictment for manslaughter by
neglect to give a proper si^alto
denote the obstruction of a line of
railway, whereby a collision took
place and a passenger was killed :
it was charged that the prisoner's
duty was to attend to the proper
MANSLAUGHTER.
348
working of the signals according to
the rules: — ^Held, that it was not
necessary to set out the rules. Reg,
V. Pcergeler, 3 Cox, C. C. 191.
An averment that it was the pris-
oner's duty to signal an obstruction,
and that there was an obstruction
which the prisoner neglected to sig-
nal, was a sufficient description of
the offence. Ih.
A count charging both a neglect
to give the night signal and the giv-
ing of a wron^ signal, is not bad for
duplicity. lo.
It is sufficient to charge that the
prisoner neglected and omitted to
alter the signal, without stating more
particularly which was the specific
alteration which he neglected to
make. lb.
In Gondiict and Management of
Sieam Engines and Mailway Trains.^
—An act of omisfdon, as well as of
commission, may be so criminal as
to be the subject of an indictment
for manslaughter. Reg, v. Lowe^ 3
C. &. K. 123 ; 4 Cox,'C. C. 449 —
Campbell.
Where a man, appointed to su-
perintend a steam-engine employed
m a colliery for the purpose of rais-
ing colliers from the pits, left the
engine in the charge of an ignorant
boy, who told him that he was un-
able to manage it, and in the ab-
sence of the engineer a man was
drawn up, who was killed from the
want of skill in the boy to manage
the engine : — ^Held, that this was
manslaughter in the engineer. Ih.
Where an engineer who had
charge of an engine which was
worked for the purpose of keeping
np a supply of pure air in a mine
neglected his duty, so that the en-
gine stopped, and the mine there-
by became charged with foul air,
which afterwards exploded and
caused the death of one of the min-
ers:— Held, that the engineer
could not be convicted of man-
slaughter on an indictment which
did not allege a duty in him which
he had neglected to perform. Reg,
V. Barren, 2 C. & K. 343— Wight-
man.
An explosion having occurred on
board a steamer, whereby one of
three persons in charge of her was
killed, the circumstance that the
valves were out of order is iiot suf-
ficient to make out, against either
or both of them (one being the mas-
ter and the other engineer), a case
of such culpable negligence as would
sustain a charge of manslaughter.
Reg, V. Gregory, 2 F. & F. 153 —
Hill.
A party having the charge of a
steam-engine, stopped it and went
a^ay ; another party came and set
it in motion, whereby a person was
killed : — Held, that the party who
went away was not the party by
whose negligence the death was
caused, and therefore he was dot
guilty of manslaughter. HiUon^s
case, 2 Lewin, C. C. 214 — Alderson.
On an indictment against an en-
gine-driver and a fireman of a rail-
way train, for the manslaughter of
persons killed while travelhi^ in a
preceding train, by the prisoners'
train running into it, it appeared
that on the day in question special
instructions had been issued to them,
which in some respects diifered
from the general rules and regula-
tions, and altered the signal for
danger, so as to make it mean not
" stop," but "proceed with caution;"
that the trains were started by the
superior ofiicers of the company ir-
regularly, at intervals of about ^ve
minutes; that the pi-eceding train
had stopped for three minutes, with-
out any notice to the prisoners ex-
cept the signal for caution ; and
that their train was being driven at
an excessive rate of sjjeed; and
that then they did not slacken im-
mediately on i^erceiving the signal,
but almost immediately, and that
as soon as they saw the preceding
train they did their best to stop, but
without effect : — Held, first, that
the special rules, so far as not con-
344
MURDER, MANSLAUGHTER, ETC.
sistent with the general rules, super-
seded them. Reg. v. TVainer, 4 F.
<fc F. 105— Willes.
Held, secondly, that if the pris-
oners honestly believed they were
observing them, and they were not
obviously illegal, they were not
criminally responsible. Ih.
Held, thirdly, that the fireman,
being bound to obey the directions
of the engine-driver, and, so far as
appeared, having done so, thei-e was
no case against him. Ih.
Where a fatal railway accident
had been caused by the train run-
ning off the line, at a spot where
rails had been taken up, without al-
lowing sufficient time to replace
them, and also without giving suf-
ficient or, at all events, effective
warning to the engine-driver; and
it was the duty of the foreman of
plate-layers to direct when the work
should be done, and also to direct
effective signals to be given : —
Held, that though he was under the
general control of an inspector of
the district, the inspector was not
liable, but that the foreman was,
assuming his negligence to have
been a material and a substantial
cause of the accident, even al-
though there had also been negli-
gence on the part of the engine-
driver in not keeping a sufficient
look-out. Meg, v. Benge, 4 F. <fc
F. 504— Pigott.
Upon a trial for manslaughter,
it appeared that the prisoner was
the driver and the deceased was
the fireman of a steam-engine on
a railway, and that the death of
the latter was caused by the en-
gine coming into collision with a
train standing on the same line of
rails, owing to a neglect on the
part of the person in charge of the
engine to keep a sufficient look-out.
There was evidence that it was the
duty of the prisoner, or of the de-
ceased, to keep the look-out, but
there was no evidence as to whomi
of the two was charged with the
duty at the time of the collision :—
Held, that the prisoner was entitled
to an acquittal. Beg. v. Gra^^ 4
F. & F. 1098— WiUes.
When a collision occurs on a ral-
way, and death is caused, the per-
son responsible is the man actiiallv
in charge of the engine, and whose
negligence caused the accident at
the time, of the collision. JReg, y.
BirchaU, 4 F. & F. 1087— Willes.
Bj^ Mediccd Practitionen and
QiLacks.l — If a person, bona fide
and honestly exercising his best skill
to cure a patient, performs an op-
eration which causes the patient's
death, he is not guilty of man-
slaughter; and it makes no difler-
ence whether such person is a r^-
ular surgeon or not, nor whether he
has had a regular medical edncation
or not. Rex v. Van ButcheU^ 8 C.
& P. 629— Hullock and Littledale.
A person in the habit of acting as
a man midwife, tearing away part
of the prolapsed uterus of one of his
patients, supposing it to be a part of
the placenta, by means of which the
patient dies, he is not indictable for
manslaughter, unless he is guilty of
criminal misconduct arising either
from the grossest ignorance or from
the most criminal inattention. Rex
V. Williamson, 3 C. & P. 635— H-
lenborough.
A person acting as a medical
man, whether licensed or imlicen{«d,
is not criminally responsible for the
death of a patient, occasioned by
his treatment, unless his conduct ]S
characterized either by gross ignor-
ance of his art, or by gross inatten-
tion to his patient's safety. R&t t.
St. John Long, 4 C. & P. 398-
Park and Garrow.
Where a person, undertaking tiie
cure of a disease (whether he has
received a medical education or
not), is guilty of gross negligence m
attending his patient after he has
applied a remedy, or of gross rash-
ness in the application of it, and
death ensues in consequence of
either, he is liable to be convicted
MANSLAUGHTER.
345
of maoslaughter. Hex v. St. John
Lmg, 4 C. & P. 423— Bayley, Bol-
laod and Bosanquet.
Where a person, grossly ignorant
of medicine, administers a danger-
ous remedy to one labouring under
a disease, proper medical assistance
being at the time procurable, and
that dangerous remedy causes death,
the person so administeniig it is
gailty of manslaughter. Sex v.
Wehb, 1 M. & Rob. 405 ; 2 Lewin,
C. C. 196— Lyndhurst.
If a medical man, though lawful-
ly qualified to practise as such,
causes the death of a person by the
grossly unskillful, or the grossly in-
cautious use of a dangerous instru-
ment, he is guilty of manslaughter.
%. V. SpiUxng, 2 M. A Rob. 107
—Coleridge.
Any person, whether a licensed
medical practitioner or not, who
deab with the life or health of any
of his Majesty's subjects, is bound
to have competent skill ; and is
bound to treat bis or her patients
with care, attention and assiduity ;
and if a patient dies for want of
either, the person is guilty of man-
daughter. Hex V. Spiller, 5 C. <fe
P. 333— BoUand and Bosanquet.
See Bex v. Simpson, 1 Lewin, C. C.
172 ; Hex V. Ferguson, 1 Lewin, C.
C. 181.
The application by an ignorant
person of a corrosive sublimate
which caused death, is evidence for
the jury on an indictment for man-
sUughter, the question being, under
all the circumstances, whether he
acted with criminal inattention and
carelessness. Reg, v. Crook, 1 F.
4 F. 521— Watson.
Where a person, not a regular
practitioner, administers lobelia, a
dangerous medicine, which produces
death, the question for the jury is,
nnder all the circumstances, wheth-
er he has acted so rashly and care-
IfiSBly as to cause the death. Reg,
V. Cnch, 1 F. & F. 519— Pollock.
On an indictment for manslaugh-
ter, by reason of gross negligence
Fish. Dig.— 26.
and ignorance in surgical treatment,
neither on the one side nor the other
can evidence be gone into of former
cases treated by the prisoner, but
^vitnesses may be asked causa scien-
tisB their opinion as to his skill.
Reg. V. Whitehead, 3 C. & K. 202
— ^Maule.
An indictment against a medical
practitioner charged that he made
divers assaults on the deceased, a
Eatient, and applied wet cloths to
is body, and caused him to be put
in baths: — Held, that this was a
proper mode of laying the offence,
although all that was done was by
the consent of the deceased ; and
that the indictment need not charge
an undertaking to perform a cure,
and a felonious breach of duty.
Reg. V. JSliis, 2 C. & K. 470— Tin-
dal and Rolfe.
A mistake on the part of a chdin-
ist in putting a poisonous liniment
into a medicme bottle, instead of a
liniment bottle, in consequence of
which the liniment was taken by
his customer internally, with fatal
results, the mistake being made un-
der the circumstances which rather
threw the prisoner off his ^uard,
does not amount to such cnminal
negligence as will warrant a convic-
tion for manslaughter. Reg. v.
Noakes, 4 F. & F. 920— Erie.
A medical man, who administer-
ed to his mother, for some disease,
prussic acid, of which she almost
immediately died, is not guilty of
manslaughter, it not appearing dis-
tinctly what the quantity was which
he had administered, or what quan-
tity would be too great to be ad-
ministered with safety to Ufe. Reg.
V. JSuU, 2 F. A F. 201--Cockbum.
An unskilled practitioner who
ventures to prescribe dangerous
medicines, of the use of which he
is ignorant, that is culpable rash-
ness, for which he will be responsi-
ble. Reg. V. Markuss, 4 F. & F.
356— Willes.
On an indictment for manslaugh-
ter against a medical man, for ad-
846
MURDER, MANSLAUGHTER, ETC.
ministering poison by mistake for
some other drug, the prosecution
is bound to shew that the poison
got into the ipixture in consequence
of his gross negligence, and it is
not sufficient to shew merely
that the prisoner, who dispensed
his own drugs, supplied a mixture
which contained a large quantity of
poison. The jury must be satisfied
that there was gross and culpable
negligence as would shew an evil
mind. Meg, v. Spencer^ 10 Cox, C.
C. 525— Willes.
There must be a competent knowl-
edge and care in dealing with a
dangerous drug. If a person is ig-
norant of the nature of the drug he
uses, or is guilty of gross want of
care in the use of it, he will be crim-
inally responsible for the conse-
?uences. Meg, v. Chamberlain^ 10
JAx, C. C. 486— Blackburn.
A person, professing himself to be
a herbalist, administered arsenical
ointment to a woman having a
tumour, of which she died. He
gave her no caution or directions as
to the use of it. The judge directed
the jury, that if he acLtninistered the
arsenic without knowing or taking
the pains to find out what its effects
would be ; or if, knowing this, he
gave it to the deceased to be used
by her without giving her adequate
directions as to its use, he would be
guilty of culpable negligence, and
therefore of manslaughter. Ih.
In the Cour$e of Avtharitaiive
Chastisement. ] — A schoolmaster
who, on the second day of a boy's
return to school, wrote to his parent,
proposing to beat him severely, in
order to subdue his alleged obstin-
acy, and on receiving the father's
reply, assenting thereto, beat the
boy for two hours and a half secret-
ly in the night, and with a thick
stick, until he died, is guilty of
manslaughter. Meg, v. Mophsy^ 2
F. & F. 202— Cockbum.
If a father beats his son for theft
80 severely with a rope that he dies,
it is only manslaughter. Anxm^ 1
East P. C. 261.
Where a person in loco parentis
inflicts corporal punishment on %
child, and compels it to work for
an unreasonable number of boors,
and beyond its strength, and the
child dies, the death being of con-
sumption, but hastened by tJ)e ill-
treatment, it will not be murder,
but only manslaughter in the per-
son inflicting the punishment, al-
though it was cruel and excessiYe,
and accompanied by violent and
threatening language ; if such per-
son believed t£at the child was
shamming illness, and was really
able to do the quantity of work re-
quired. Mex V. Cheeseman, 7 C.
& P. 455 — Vaughan.
3. Abroad and at Sea,
By 24 & 25 Vict. c. 100 a 9,
where any murder or manslaogfa-
ter shall be committed on land
out of the United Eji^om,
whether within the Queen^s do-
minions or without, and whether
the person killed were a subject
of her Majesty or not, every of-
fence committed by any subject
of her Majesty in respect of any
such case, whether the same shall
amount to the offence of murder
or of manslaughter, or of being ac-
cessory to murder or mandaugh-
ter, may be dealt with, inquiied
of, tried, determined and pim^
ished in any county or place
in England or Ireland in which
such person shall be appre-
hended or be in custody, in the
same manner in all respects as if
such oflence had been actually
committed in that county or plaoe :
provided that nothing herein con-
tained shall prevent any pereoD
from being tned in any place out
of England or Ireland for any
murder or manslaughter commit-
ted out of England or Ireland, in
the same manner as such person
might have been tried before the
passing of this act.'' {Farmtf
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ABROAD OR AT SEA.
347
prmswrij 9 Geo. 4, c. 31, 8.7,irAtcA
repealed 33 Hen. 8, c. 23, and 43
Geo. 3, c. 113, on this subject,)
By 8. 10, " where any person,
" being feloniously stricken, poison-
" ed or otherwise hurt upon the sea
" or at any place out of England or
"Ireland, shall die of such stroke,
^^ poisoning or hurt in England or
"Ireland, or, being feloniously
"stricken, poisoned or otherwise
" hurt at any place in England or
" Ireland, shall die of such stroke,
" poisoning or hurt upon the sea, or
" at any place out of England or
" Ireland, every offence committed
" m respect of any such case, wheth-
" er the same shall amount to the
"offence of murder or of man-
" slaughter, or of being accessory to
" murder or manslaughter, may be
"dealt with, inquired of, tried, de-
"termined and pimished in the
"county or place in England or
" Ireland in which such death stroke,
" poisoning or hurt shall happen, in
"the same manner in all respects
" as if such offence had been wholly
"committed in that county or
" place." (Fanner provision^ 9 Geo.
4,c.31, s. 8.)
By 23 & 24 Vict. c. 122, « power
"is conferred on colonial legisla-
" tares to pass corresponding enact-
" ments."
Semble, that where guns are fii'ed
by one vessel at another vessel, and
those on board her generally, those
guns are to be considered as shot at
each individual on board her. Rex
T.Bailet/.B,. & R. C. C. 1.
A manslaughter committed in
China by an aiien enemy who had
been a prisoner of war, and was
tiien acting as a mariner on board
an English merchant ship, could
not be tried here under a commis-
sion issued in pursuance of 33 Hen.
8,0. 23, and 43 Geo. 3, c. 113, s. 36.
Bex V. Depctrdoy 1 Taunt. 26 ; R. <fe
R C. C. 134.
A British subject was indictable
under 33 Hen. 8, c. 23, for the mur-
der of another British subject,
though the murder >Vlw committed
within the dominion of a foreign in-
dependent state. Hex v. Sawder,
R. & R. C. C. 294 ; 2 C. & K. 101 ;
S. P., Bex V. JEaltnff, Car. C. L. 105.
An indictment on 33 Hen. 8, c. 23,
for the murder of one British sub-
ject by another in a foreign state,
stating that the person murdered
was at the time in the king's peace,
was sufficient to shew that he was
a British subject, lb.
In an indictment on 9 Geo. 4, c.
31, s. 7, for mui-der committed by a
British subject abroad, it must be
averred that the prisoner and the
deceased were subjects of his Maj-
esty. To prove the allegation that
the prisoner was a subject of his
Majesty, his own declaration is evi-
dence to go to the jury, and it will
be for them to say, whether they
are satisfied that he is in fact a
British-bom subject. Hex v. Hel-
sham, 4 C. & P. 394— Bayley and
Bosanquet.
A Spaniard, being in England,
signed articles to serve in a ship
*^ bound on a voyage to the Indian
seas and elsewhere, on a seeking
and trading voyage (not exceeding
three years' duration), and back to
the United Kingdom." On the
ship's arrival at Zanzibar, an
island in the Indian seas, which was
under the dominion of an Arab
king, the captain left the vessel (in
pursuance of an understanding in
England), and set up in trade, and
without the consent of the rest
of the crew, engaged the Span-
iard as an interpreter, the new
captain of the ship not i^^Quir-
ing him to serve on board. The
ship went two or three short voy-
ages without him, and returned to
anchor a few hundred yards from
the shore, in a roadstead of seven
fathoms water, between Zanzibar
and several other islands. The
crew being on shore, a quaiTel arose
between the Spaniard and one of
them, which led to blows by the
Spaniard, which killed the other
a48
MURDER, MANSLAUGHTER, ETC.
The death tct)k place on board ship.
The Sjmniard was brought to Eng-
land, and indicted and tried in Lon-
don under a special commission, is-
sued in pursuance of 9 Geo. 4, c.
31, s. 7 .-—Held, that he could not
be convicted — first, as he was not a
subject of his Majesty within the
meaning of that section ; and sec-
ondly, that as the death was on
shipboard, though the blows were
given on shore, the offence could
not be said to have been committed
according to the words of the stat-
ute, " on land out of the United
Kingdom." Hex v. Mattas, 7 C. A
P. 458 — Yaughan and Bosanquet
A British subject, who commit-
ted a murder in a foreign country
upon a person who was not a Brit-
im subject, was triable in England
under 9 G«o. 4, c. 31, s. 7. JKea. v.
Azzopardi, 1 C. & K. 203 ; 2 M. C.
C. 289.
On the trial of Brazilians for the
murder of P., it appeared, that a
British cruiser, engaged in the pre-
vention of the slave-trade, manned
two boats, and sent them, com-
manded by a lieutenant, to board
the Brazilian ship F. : he did so, and
finding her fitted up for slaves, but
with no slaves on board, took her.
After this, the lieutenant in the
ship F. chased the ship E., also
Brazilian, and sent a boat with P.,
who was a midshipman, to board
her. She had slaves on boanl and
was captured, and part of her crew
put on board the F., and left there,
with the captain and cook of the F.,
as prisoners in charge of P. and
British seamen. Neither the boats
nor the F., after she was taken, had
any instructions on board, but the
cruiser had. Such of the crew of
the E. as were thus put on board
the F., and the cook of the F., all
Brazilians, rose on P. and the Brit-
ish seamen and killed them all ; but
the captain of the F. would not join
in the transaction. It was contended
for the prosecution, that the F. and
E. were legally taken under 5 Geo.
8, c. 113, and 7 & 8 Geo. 4, c. 7i,
and the Portuguese and BraziluuD
treaties as to slave-trading; and
that the prisoners were iu lawful
custody, and the ship F. in the law-
ful custody of the Queen's officers.
The prisoners were convicted of tbe
murder, but the majority of the
judges held the conviction wrong,
on the ground of want of jurisdic-
tion in an English couit to try an
otfence committed on board the F.:
and that, if the lawful possession of
that vessel by the British Crown
through its officers would be suffi-
cient to give jurisdiction, there was
no evidence brought before the
court at the trial to shew that tbe
possession was la^Hul. i?w. v Ser-
va, 2 C. & K. 53 ; 1 Den. C. C. 104.
Upon an indictment for murder,
it was proved that the offence was
committed upon the high seas, in a
ship sailing under the British flag,
which was foi*eign built, and all the
crew of which, both officers and
men, including the prisoner and the
deceased,were foreigner. A certified
copy of the roister was put in evi-
dence, in which one Rehder was de-
scribed as the sole owner, and as
bein^ of London, and a merchant
Rehder was not a born Englishman,
and there was no evidence of his
having letters of denization, or that
he had been naturalized: — ^Held,
that the ship was not a British ship
so as to give jurisdiction in this
country to try the offence. Reg, v.
Bfomseriy 10 Cox, C. C. 74 ; L 4
C. 545 ; 11 Jur., N. S. 589; 34 L
J.,M. C. 180; 13 W. R 664; 12
L. T., N. S. 473.
On a charge of murder on the
high seas, on board a British ship,
afloat. The deceased having been
thrown out of a foreign ship in a
foreign port, the question whether
all these facts must not be averred
in each count of the indictment, in
order to give a judge sitting under
an ordinary commission of oyer and
terminer and general gaol aeliveiy
jurisdiction to try the offence, as it
PRmCIPALS AND ACCESSORIES.
349
arises on the record, is a point which
will not be reserved for the Court
of Criminal Appeal. Reg, v. Men-
hm, 1 F. & F. 369^Pollock.
If one foreigner indictR a blow on
another foreigner in a foreign ves-
sel on the high seas, and the person
80 struck in a few days afterwards
lands in England and dies there, the
homicide is not cognisable by the
courts of this country by virtue of
9 Geo. 4, c. 31, s. 8, or of 2 Geo. 2,
c 21, s. 1. Reg. v. Letois, Dears. &
B. C. C. 182 ; 3 Jut., N. S. 523 ;
26 L J., M. C. 104 ; 7 Cox, C. C.
277.
A foreigner on board a British
^p on the h^h seas owes allegiance
to the law of England, and if he com-
mits an offence against that law,
he is triable under 18 ife 19 Vict. c.
91, s. 21, by any court of justice in
her Majesty's dominions, within the
jurisdiction of which he may, at the
time of the indictment, happen to
be, provided that such court would
have had cognizance of the crime if
committed within the limits of its
ordmarv jurisdiction. Reg. v. ScU-
tler, 7 Cox, C. C. 484 ; 4 Jur., N.
S.98; Dears. & B. C. C. 525; 27
L J., M. C. 48.
Where a foreigner, having com-
mitted larceny in England, was fol-
lowed to Hamburgh by an Eng-
lish police-officer, who aiTcsted him
without a warrant, and brought
him against his will on board an
Ekiglisn steamer trading between
Hamburgh and London, and there
kept him in custody in order that
he might be tried for the larceny in
England : the foreigner having
shot the officer during the voyage,
and whilst the steamer was on the
high seas, under such circumstances
that if the killing had been by an
Englishman in an English county, the
offence w^ould have been murder : —
Held, that the Central Criminal
Court had jurisdiction under 18
4 19 Vict. c. 91, s. 21, to try the
foreigner for the murder of the pol-
ice-oflScer. lb.
4. Principals^ Accessaries and Abet-
tors.
(24 & 25 Vict. c. 100, s. 67.)^
Where persons combine to stand
by one another in a breach of the
peace, with a general resolution to
resist all opposers, and in execution
of their design a murder is commit-
ted, all of the company are equally
principals in the murder, though at
the time of the fact some of them
were at such a distance as to be out
of view. Reg. v. HoweU, 9 C. &
P. 437— Littledale. .
The doctrine of constructive hom-
icide, as regards offenders not ac-
tually present at, or parties to, an
act of homicide, but sought to be
made liable for it, by reason of
being engaged in a common pur-
pose, in the course of carrying
out which the act of homicide
occurs, only applies (there being no
evidence of a common intent to
carry out the purpose at all hazards,
and by all means), where the com-
mon purpose is felonious ; not where
it is mei-ely unlawful, as in the case
of a misdemeanor, such as night-
poaching. Reg,*y, Skeet, 4 F. <fc
F. 931— Pollock.
A statement by a prisoner that
A. had proposed to him to murder
B. on the following night, and that
he (the prisoner) agreed to go, but
did not do so, is not of itself evi-
dence that the prisoner was acces-
sory before the fact to the murder
of B. by A. on that night. Reg. v.
Blackburn, 6 Cox, C. C. 333— Tal-
fourd^
If husband and wife jointly com-
mit a murder, both are equally
amenable to the law, as the doc-
trine of presumed coercion of the
wife does not apply in murder..
Reg. V. Manning, 2 C. & K. 903.
So also a wife is amenable as an
accessory before the fact to a mur-
der committed by her husband ; but
if the only part she took in the
transaction was in harbouring and
comforting her husband after the
350
IVIURDER, MANSLAUGHTER, ETC.
crime was committed, she is not li-
able as an accessory after the fact.
Ih.
A count in an indictment charg-
ed A. M''ith the murder of B., and
also charged C. and D. with being
present, aiding and abetting A. in
the commission of the murder. A.
was an insane pei'son : — Held, there-
fore, that C. and D. could not be
convicted oil this count. Meg. v.
Tyler, 8 C. & P. 616— Denman.
If a person knowingly invites an-
other to a certain place, in order
that he may be murdered, and he
is murdered accordingly, that would
constitute such i^erson an accessory
before the fact to the murder. lUg,
V. Manning, 2 C. & K. 903.
5. Conspiring or Soliciting to com-
mit Murder, '
By 24 <fc 25 Vict. c. 100, s. 4,
" all persons who shall conspire, con-
" federate and agree to murder any
" person, whether he be a subject
" of her Majesty or not, and wheth-
" er he be within the Queen's domin-
" ions or not, and whosoever shall
" solicit, encourage, persuade, or en-
" deavor to persuade, or shall pro-
" pose to any person to murder any
" other person, whether he be a
" subject of her Majesty or not, and
" whether he be within the Queen's
" dominions or not, shall be guilty
" of a misdemeanor, and, being con-
" victed thereof, shall be liable, at
" the .discretion of the court, to be
" kept in penal servitude for any
" term not more than ten and not
"less than five years (27 & 28
" Vict. c. 47), or to be imprisoned
" for any term not exceeding two
" years, with or without hard la-
" hour."
Evidence that A. was privy to a
plot to murder B. by explosive ma-
chines, is sufficient to go to the jury
on counts charring A. with the mur-
der of C. (accidentally killed by the
explosion) — with conspiring to mur-
der him, and as an accessory to the
murder. Reg. v. Bernard, 1 F. A
F. 240— Campbell.
At a period of the trial when it
had been proved that the grenades
by which the death in question had
been caused had been ordered by
A. ; but when there was no evidence
to connect A. with the prisoner, it
was proved that a letter in A's
handwriting, bearing a memoran-
dum in the hand of the prisoner,
was found at his residence after his
arrest upon the present charge :—
Held, that such letter was admissi-
ble against him, not upon the ground
that A. was a co-conspirator, but
upon the ground that it was found
in the possession of the prisoner, and
was relevant to this inquiry. Ih,
6. Attempts to Mvrder and (nfliet-
ing Qrievous BodUy Harm.
(a) By administering Poiso/i.
With Intent to Murder.y-B^
24 & 25 Vict. c. 100, s. 11, " who-
' soever shall administer to, or cause
' to be administered to, or to be taken
' by any person, any poison or other
' destructive thing, or shall by any
' means whatsoever wound or cause
' any grievous bodily harm to any
' pei'son, with intent in any of the
' cases aforesaid to commit murder,
' shall be guilty of felony, and, be-
' ing convicted thereof, shall be li-
' able, at the discretion of the court,
' to be kept in penal servitude for
' life, or for any term not less than
' five years (27 <& 28 Vict c. 47),
' or to be imprisoned for any term
* not exceeding two years, with or
' without hard labour, and with or
' without solitary confinement."
(Former enactment, 7 Will. 4 A 1
Vict. c. 85, 8. 2.)
And by s. 14, " whosoever sliafl
" attempt to administer to, or shall
" attempt to cause to be admiuis-
" tered to, or to be taken by any
" person, any poison or other de-
" structive thing, with intent to
" commit murder, shall, whether
" any bodily injury be effected or
BY POISON.
351
" not, be guilty of felony." (Pun-
ishmeiU as in Uut section. Fanner
madmentSy 9 Geo. 4, c. 31, 8. 11,
and 7 Will. 4 & 1 Viet. c. 85, s. 3.)
It is not an administering of poison
unless the poison is taken into the
stomach. Therefore, where A.' was
indicted for administering poison to a
woman, with intent to morder her ;
and the proof was that he gave her
a bit of cake which contained arsen-
ic and sulphate of copper, which
die put mto her mouth, but which
she spit out again without having
swtUowed any part of it :— Held,
that it was not sufficient to con-
vict. Eex V. Ccuhnan, Car. 0. L.
237;1M.C. C. 114.
If a servant put poison into a
coffee-pot which contained coffee,
snd when her mistress came down
to breakfast, the servant told the
mistress that she had put the coffee-
Sot there for her (the mistress's)
reakfast, and the mistress drank
the poisoned coffee — ^this was a cans-
ing the poison to be taken, within 9
Geo. 4, c. 31 , s. 1 1 . Hex v. Harley^
iC.&P.369— Park.
If A. sent poison intending it for B.,
and with intent to kill B., and it came
into the possession of C, who took
it, A. might be indicted on 9 Geo. 4,
c.3l,s, 11, for administering it to
C. Rex V. Leicis, 6 C. & P. 161—
Gumey.
Tlie delivery of-poison to an agent,
with directions to him to cause it to
be administered to another under
sach circumstances that, if adminis-
tered, the agent would be the sole
principal felon, was not an attempt
to administer poison within the 7
Will. 4 & 1 Vict. c. 85, 8. 3. Reg.
V. Wmiams, 1 C. «fc K. 589 ; 1 Den.
C. C. 39.
Administering unbroken cocculus
uidicus berries to an infant was ad-
miniistering poison within 7 Will. 4
& 1 Vict. c. 85, s. 2, although it was
proved that the berries were not poi-
"onoug until the exterior or pod was
broken, and that by reason of the
weakness of the infant's digestive or-
gans, the berries were innocuous.
Reg. V. Cluderay, 1 Den. C. C. 515 ;
26. <fc K. 907; T. & M. 219; 14
Jur. 71 ; 19 L. J., M. C. 119 ; 4 Cox,
C. C. 84.
A person who at the same time ad-
ministers a poison and its antidote
does not administer poison. — ^Alder-
son, lb.
Putting poison in a place where it
is likely to be found and taken, if
done with an intent to murder, was
an attempt to administer poison with-
in 7 Will. 4 & 1 Vict. c. 85, s. 3.
Reg. V. Date, 6 Cox, C. C. 14—
Wightman.
U pon an indictment under 7 Will.
4 <fe 1 Vict c. 85, Bs. 3, 4, for admin-
istering poison with intent to murder,
a previous acquittal on an indict-
ment for munler founded on the
same facts could not be pleaded in
bar. Reg. y, Connelly 6 Cox, C. C.
178— Williams and Talfourd.
Under 24 & 25 Vict. c. 100, ss.
23, 24, if a noxious thing is unlaw-
fully administered with mtent only
to injure or annoy, and does, in fact,
inflict grievous bodily harm, a felony
is committed. TuUey v. Corrie^ 17
L. T., N. S. 140 ; 10 Cox, C. C. 640
— Q. B. ; S. a 10 Cox, C. C. 584,
at Nisi Prius.
With Intent to inflict Grievous Bod-
ily Harm.]—Bj 24 &, 25 Vict. c.
1()0, s. 23, " whosoever shall unlaw-
" fully and maliciously administer to,
" or cause to be administered to or
" taken by, any other person, any
" poison or other destructive ornox-
'* lous thing, so as thereby to endan-
" ger the life of such person, or so as
" thereby to inflict \v^n such person
" any grievous bodily harm, shall be
" guilty of felony, and being convict-
" ed thereof, shall be liable, at the
" discretion of the court, to be kept
" in penal servitude for any term not
" exceeding ten years, and not less
" tlian five years (27 A 28 Vict. c.
" 47), or to be imprisoned for any
" teim not exceeding two years, with
" or without hard labour." (Simi-
352
MURDER, MANSLAUGHTER, ETC.
tor to former provision^ 28 Vict. c. 8,
8. 1.)
With Intent to Injure^ Aggrieve^ or
Annoy, 1 — By s. 24, "whosoever
" sball unlawfully and maliciously
" administer to, or cause to be ad-
" ministered to or taken by, any oth-
" er person, any poison or other de-
" structive or noxious thing, with in-
" tent to injure, aggrieve or annoy
" such person, shall be guilty of a
" misdemeanor, and, being convict- "
" ed thereof, shall be liable, at the
" discretion of the court, to be kept
" in penal servitude for the term of
" five years (27 & 28 Vict. c. 47),
" or to be imprisoned for any term
" not exceeding two years, with or
" without hard labour." (Similar
to 23 Vict. c. 8, s. 2.)
By B. 25, " if, upon the trial of any
" person for any felony in the last
" but one preceding section mention-
" ed, the jury shaU not be satisfied
" that such person is guilty thereof,
"but shall be satisfied that he is
" guilty of any misdemeanor in the
" last preceding section mentioned,
" then and in every such case the
"jury may acquit the accused of
" such felony, and find him guilty
" of such misdemeanor, and thei-e-
" upon he shall be liable to be pun-
" ished in the same manner as if con-
" victed upon an indictment for such
"misdemeanor." {Similar to 23
Vict. c. 8, 8. 3.)
Administering cantharides to a
woman, with intent to excite her sex-
ual passion, in order to obtain con-
nexion with her, was an administer-
ing with intent to injure, aggrieve or
annoy, within 23 Vict. c. 8, s. 2,
JReg. V. Wilkins, L. <fc. C. 89 ; 9
Cox, C. C. 20 ; 31 L. J., M. C. 72 ;
7 Jur., N. S. 1128 ; 10 W. R. 62 ;
5 L. T., N. S. 330.
But administering cantharides to
a woman, with intent to injure her
health, was not a misdemeanor at
common law, neither was it an as-
sault, nor within 7 Will. 4 & 1 Vict.
c. 85. JReg, v. JIanson, 4 Cox, C.
C. 138 ; 2 C. & K. 912.— William
Administering Chloroform or ^
pefying Drugs,]-^By 24 & 25 Vict
c. 100, 8. 22, " whosoever shall on-
" lawfully apply or administer to, or
" cause to be taken by, or attempt
" to apply or administer to, or at-
" tempt to cause to be administered
" to or taken by, any person, any
" chloroform, laudanum or otherstu-
" pefyingoroverpoweringdrug,mat-
" ter or thing, with intent in any of
" such cases thereby to enable him-
" self or any other person to com-
" mit, or with intent in any of fwh
" cases thereby to assist any other
" person in committing, any indict-
" able oiFenoe, shall be guilty of fd-
" ony, and, being convicted thereof,
" shall be liable, at the diBcretion oJf
" the court, to be kept in penal ser?-
" itude for life, or for any other term
" not less than five years (27 A 2S
"Vict. c. 47), or to be imprisoned
" for any term not exceeding two
" years, with or without hard 1»-
" hour." (Former provision, 14 &
15 Vict. c. 19, 8. 3.)
IndictmentJl — ^A prisoner was in-
dicted for mixing sponge with milk,
and administering it with intent to
poison. The indictment was insuffi-
cient, because it did not aver that
the sponge was of a deleterious or a
poisonous nature. JRex v. IhwkSy 4
C. &. P. 571— Alderson.
JSvidence.l —An indictment for
causing poison to be taken by A
with intent to murder A, is not sus-
tained by evidence shewing that the
poison, although taken by A., was
intended for another person. Beg,
V. Hyan, 2 M. & Rob. 213— Parke
On an indictment for administer-
ing poison with intent to murd»,
the police having, in consequence of
certain information, found the hot-
tie containing the poison in a place
used by the prisoner, are bound to
MISCARRIAGE OR ABORTION.
358
diflclow from whom they had the in-
fonnstion. JReg, v. Richardson, 8
F. & F. 693— .CockburiL
(b) With Intent to procure Miscar-
riage or Abortion.
iStaftite.]-.By 24 & 25 Vict c.
100, F. 58, " every woman, being
" with child, who, with intent to pro-
*'cure her own miscarriage, shall
"unlawfully administer to herself
" any poison or other noxioas thing,
"or diall unlawfully use any instru-
" ment or other means whatsoever
" with the like intent, and whosoev-
" er, with intent to procure the mis-
** carriage of any woman, whether
" she be or be not with child, shall
"unlawfully administer to her, or
" cause to be taken by her, any poi-
" son or other noxious thing, or shall
'* unlawfully use any instrument
" or other means whatsoever, with
" the like intent, shall be guilty of
" fek)ny, and, being convicted there-
" of, shall be liable, at the discretion
" of the court, to be kept in penal
" servitude for life or for any term
" not less than five years (27 & 28
'^Vict c. 47), J or to be imprisoned
" for any term not exceeding two
" years, with or without hard labour,
" and with or without solitary con-
" finement." (Former provisions^
7 WiU. 4 & I Vict. c. 85, s. 6 ; 9
Geo. 4, c. 81, s. 18. By 9 Geo. 4,
c. 31, the 43 Geo. 3, c. 58, LvrdEU
knborough^s Act, was repealed.)
By s. 59, " whosoever shall unlaw-
" fully supply or procure any poison
" or other noxious thing, or any in-
" strament or thing whatsoever,
*^ knowino: that the same is intended
to be unlawfully used or employed,
" with intent to procure the miscar-
" riage of any woman, whether she
"be or be not with child, shall be
" ^Ity of a misdemeanor, and, be-
" ing convicted thereof, shall be li-
" able, at the discretion of the court,
" to be kept in penal servitude for
" the term of five years (27 & 28
"Vict. c. 47), or to be imprisoned
" for any term not exceeding two
" years, with or without hard labour."
What within.] — A small quantity
of savin, not sufficient to ao more
than produce a little disturbance in
the stondach, was not a noxious thing
within 7 Will. 4 & 1 Vict. c. 85, s.
6. Beg. v. Perrg, 2 Cox, C. C. 228
— WUde.
Upon an indictment, under 24 &
25 Vict. c. 100, s. 59, for supplying
a certain noxious thing, knowing
that the same is intended to be used
with intent to procure miscarriage,
it is necessary to prove that the thing
supplied is noxious. The supplying
an innoxious drug, whatever may be
the intent of the person supplying it,
is not an offence against that enact-
ment. jReg. V. Jsaacs, L. <fc C. 220 ;
9 Cox, C. C. 228 ; 9 Jur., N. S. 212 ;
32 L. J., M. C. 52 ; 11 W. R. 95 ;
7 L. T., N. S. 365.
In Older to constitute the offence
of supplying a noxious thing, with
the intention that it shall be em-
ployed in procuring abortion within
24 & 25 Vict. c. 100, s. 59, it is not
necessary that the intention of em-
ploying it should exist in the mind
of any other person than the person
supplying it. Meg. v. HiUman, L.
& C. 343 ; 9 Cox, C. C. 386 ; 33
L. J., M. C. 60 ; 12 W. R. Ill ; 9
L. T., N. S. 518.
If A. procures poison and delivers
it to B.,both intending thatB. should
take it for the purpose of procuring
abortion, and B. afterwards takes it
witli that intent in the absence of
A., A. might be convicted under 7
Will. 4 <fc 1 Vict. c. 85, s. 6, of caus-
ing it to be taken. Reg. v, Wilson,
Dears. & B. G. C. 127 ; 7 Cox, C.
C. 190 ; 2 Jur., K S. 1146 ; 26 L.
J., M. C. 18.
The prisoner, in a conversation
with a woman who was pregnant,
told her that he knew of something
that would get rid of her child. On
being asked what it was, he said it
was savin. He afterwards brought
354
MURDER, MANSLAUGHTER, ETC.
tlie woman some savin, and gave
her directions how to take it. She
took the savin accordingly, and the
prisoner called from time to time to
inquire the effect. The prisoner also
made up into pills a drug which the
woman had obtained at his request.
After taking the savin and the pills
the woman became and continued
very ill till she was confined : —
Held, a causing: to be taken within
7 Will. 4 & 1 Vict. c. 85, s. 6. Reg,
v. Farrow, Dears. & B. C. C. 164;
3 Jur., N. S. 167.
Who Indictable,'] — The deceased
woman became pregnant by the
prisoner, and died from the effects
of corrosive sublimate taken by her
for the purpose of producing abor-
tion. The prisoner knowingly pro-
cured it for the deceased, at her in-
stigation, and under the influence of
threats of self-destruction, if the
means of producing abortion were
not supplied to her. The jury neg-
atived the fact of his having ad-
ministei*ed it, or caused it to be
taken by her : — Held, that he was
not guilty of murder as an acces-
sory before the fact. Beg. v. Fret^
weU, 9 Cox, C. C. 153 ; L. & C. 161 ;
8 Jur., N. S. 466. But see 24 & 25
Vict. c. 100, S8. 58, 59.
If a person intending to procure
abortion does an act which causes
a child to be born so much earlier
than the natural time, that it is bom
in a state much less capable of liv-
ing, and afterwards dies in conse-
quence of its exposure to the ex-
ternal world, the person who by
this misconduct so brings the child
into the world, and puts it thereby
in a situation in which it cannot
live, is guilty of murder, and the
mere existence of a possibility that
something might have been done to
prevent the death would not render
it less murder. Reg, v. WeH, 2 C.
& K. 784; 2 Cox, C. C. 500—
Maule.
An indictment under 7 Will. 4
& 1 Vict. c. 85, s. 6, for uai&g
an instrument with intent to pro-
cure miscarriage: — ^Held, immate-
rial whether or not the woman was
pregnant at the time of the iostni-
ment being used. Reg, v. Goodhtdl,
or QoodchUd, 1 Den. C. C. 187 ; 2
C. & K. 293.
Under Repealed SuxhOe of A%
Geo, 3, c. 58, s, 1.] — ^The expressioD
" quick with child," in this statute
meant when the woman felt the
child move within her. GcidmiitKi
case, 3 Camp. 76 — Lawrence.
Or, having conceived. Reg. v.
Wycherle^, 8 C. & P. 262-feiir.
ney..
Or, feeling the child alive and
quick within, at whatever time the
KBtus might have a separate exist-
ence. Rex V. PhiUipSy 8 Camp. 77.
To constitute the offence of ad*
ministering poison or other noxious
substance, under the same statute,
some of the poison or noxious sub-
stance must nave been taken bv or
applied to the woman. R&i v. Uad-
man, 1 M.C.C. 114.
On an indictment for administer-
ing a drug to a woman to procuTe
abortion, she not being quick with
child; if it appeared she was not
quick with child at all, the prisoner
was acquitted, although it appeared
that he thought she was witii child,
and gave her the drug with an in-
tent to destrov the child. Rex v.
Scudder, 3 C. & P. 605 ; 1 M. C.C.
216.
(c) By Shooting, Wounding, Drown-
ing, Suffocating or Strangling,
With Intent to Murder,]— By 2^
& 25 Vict. c. 100, 8. 14, " whoso-
" ever shall shoot at any person, or
" shall, by di'awing a trigger or in
" any other manner attempt to db-
" charge any kind of loaded arms at
" any person, or shall attempt to
" drown, suffocate or strangle any
" person, with intent, in any of the
SHOOTING, WOUNDING, ETC.
355
"cases aforeFaid, to commit mur-
" der, shall whether any bodily in-
" jury be effected or not, be guilty
" of felony, and, being convicted
" thereof, shall be liable, at the dis-
" cretion of the court, to be kept in
" penal senritude for life, or for any
" terai not less than five years (27
''& 28 Vict. c. 47), or to be im-
" prisoned for any term not exceed-
"ing two years, with or without
"hard labour, and with or without
"solitary confinement." (Former
enactment, 7 Will. 4 & 1 Vict. c. 85,
S.3.)
And by s. 11, " whosoever shall,
"by any means whatsoever, wound
" or cause any grievous bodily harm
"to any person, with intent to com-
" mil murder, shall be guilty of fel-
ony." (Punishment as in last section.
Former provision^ 9 Greo. 4, c. 31 , ss.
11, 12, and 7 WiU. 4 & 1 Vict. c.
85, ?. 2.)
The 7 WiU. 4 & 1 Vict. c. 85, s.
\,repealedd Geo. 4, c. 31,S8. 11, 12.
If a person intending to shoot an-,
other, put his finger on the trigger
of a loaded pistol, but was prevent-
ed from pulling the trigger, this was
not an attempt to discharge loaded
anns by di-awing a trigger, or in
any other manner, within 7 Will.
4 & 1 Vict. c. 85, ss. 3, 4, as the
words, " in any other manner," in
that statue, meant something anal-
ogously to drawing the trigger,
which was the proximate cause of
the loaded ai-ms going off. Heg. v.
St. George, 9 C. & P. 483— Parke.
The applying a lighted match to
i loaded match-locK gun, or the
striking of the percussion cap of a
percussion gun, was a sufiioient at-
tempt within these enactments. lb.
If intending to murder A., and
supposing B. to be A., a person
phoots at and wounds R, he may
be convicted of wounding B., with
intent to murder him. lieg, v.
Smith, Dears. C. C. 559 ; 1 Jur., N.
S.in6;25L.J.,M. C. 29.
On an indictment on 7 Will. 4 ife 1
Vict. c. 85, s. 2, for the offence of in-
flicting an injury dangerous to life,
with intent to murder, the jury
ought not to convict unless satisiied
that the prisoner had in his mind a
positive intention to murder; and it
is not sufiicient that it would have
been a case of murder if death had
ensued. Heg, v. Oruse, 8 C. ife P.
541 — Pattesou.
What are loaded Arms,'] — By 24
& 25 Vict. c. 100, s. 19, " any gun,
" pistol or other arms which shall
" be loaded in the barrel with gun-
" powder or any other explosive
" substance, and ball, shot, slug or
" other destructive material, shall
"be deemed to be loaded arms
"within the meaning of this act,
" although the attempt to disx^harge
" the same may fail from want of
" proper priming, or from any other
" cause."
A rifle which was loaded, but
which for want of proper priming
would not go off, was not a loaded
arm within the 7 Will. 4 & 1 Vict,
c. 85, s. 3 ; and the pointing of a
rifle thus circumstanced at a per-
son, and pulling the trigger of it,
whereby the cock and hammer
were thrown, and the pan opened,
did not wan'ant a conviction either
of felony under sect. 3. Heg, v.
James, 1 C. & K. 530— Tindal.
In order to constitute the offence
of attempting to discharge loaded
fire-arms, within 43 Geo. 3, c. 58,
they must have been so loaded as
to be capable of doing the mischief
intended. jRex v. Carr, K. & R. C.
C. 377 ; aS'. P,, Rex v. Whitley, 1
Lewin, C. C. 123.
If a pistol was loaded with gun-
powder and balls, but its touch-hole
was plugged, so that it could not
by possibility be fired, this was not
loaded aims, within 9 Geo. 4, c. 31,
ss. 1 1 , 1 2. Kex V. Harris, 5 C. & P.
159 — Patteson.
Where on an indictment on 43
Geo. 3, c. 58, for maliciously shoot-
ing at a person, it appeared that the
instrument was fired so near, and in
356
MURDER, MANSLAUGHTER, ETC.
such a direction, as to be likely to
kill or to do other grievous bodily
harm to such person ; and with an
intent that it snould do so, the case
was within that act, although it was
loaded with powder and paper only.
Bex V. Kitchen, R. & R. C. C. 95.
A. sent a tin box to B., contain-
ing three pounds of gunpowder, and
two detonators, which were intend-
ed to ignite the gunpowder when
any person opened the box, and so
destroy the person who opened it :
— Held, that this was not an at-
tempt to discharge loaded arms at
B. within 9 Geo. 4, c. 81, ss. 11, 12.
Bex V. Mountfard, 7 C. & P. 242 ; 1
M. C. C. 441.
Shooting.^ — The fact of firing a
gun into a room of A.'8 house, with
mtent to shoot A., the prisoner sup-
posing him to be in the room, will
not support a charge of shooting at
A., if he is not shewn to be in the
room, or within reach of the shot.
Bex V. Lovel, 2 M. & Rob. 39—
Gurney.
A. was indicted for feloniously
shooting at the prosecutor, with in-
tent to do grievous bodily harm to
him. The jury found that he did
not aim at the prosecutor, or at any
one else in particular, but that he
fired into a group of persons, in-
tending generally to do grievous
bodily harm, and so unlawfully
wounded : — Held, that he was
guilty of the felony charged, and
not merely of the misdemeanor of
imlawfuUy woimding. lieq, v. Fret-
weU, L. & C. 443 ; 9 Cox, C. C. 471 ;
10 Jur., N. S. 595 ; 33 L. J., M. C.
128 ; 12 W. R. 751'; 10 L. T, N. S.
428.
A person intending to shoot at
and kill L., shot at H., mistaking
him for L., but did not kill H. On
an indictment for shooting at H.,
with intent to murder H., the judge
left it to the jury to say whether
there was an intent to murder H. ;
but he laid it down that the law in-
fers that a party intends to do that
which is the immediate and necessa-
ry effect of the act which he com-
mits. The j ury foimd that the pris-
oner did not intend to do any harm
to H., and the judge directed an ac-
quittal to be recorded. Rex v. Hck,
7 C. & P. 519— Littiedale.
A., a constable employed to watch
a copse, seeing B. wrongfully carry
away wood therefrom, calls to him
to stop, and on B.'s running away,
fires at and wounds him. B. bad
been frequently convicted summa-
rily of tne like offence, and by 7
<& 8 Geo. 4, c. 29, s. 39, such steal-
ing after two simamary convictions
is a felony. The fact of these con-
victions, as well as their legal con-
sequences, was wholly unknown to
A. : — Held, that A. was rightly ccm-
victed of wounding with intent to do
grievous bodily harm. Reg, v. Dad-
«on,2Den. C. C. 85 ; 3 C. & K. 148;
T. & M. 385 ; 14 Jur. 1051 ; 20 L
J.,M.C.57; 4 Cox, C. C. 885.
An indictment under 9 Geo. 4, c,
31, s. 12, for maliciously shooting at
A., was supported if he was struck
with the shot, though the gun waB
aimed at a different person. Rsx v.
Jcarvts, 2 M. i$b Rob. 40 — Gurney.
A. had the barrels of a double-
barrelled percussion gun detached
from the stock and lock, and by
striking the percussion cap whidi
was on the nipple of one of the bar-
rels, he fired it and shot B. :— Held,
to be within 9 G«o. 4, c. 31, ss. 11,
12. Rex V. Coaies, 6 C. & P. 894
— Patteson.
Gamekeepers being in a preserve
between twelve and one at night
heard the firing of two guns, and
proceeding in the direction of the
sound, met with two persons who
neither had guns nor same upon
them, nor were either found near
them. The gamekeepers immedi-
ately seized them without calling on
them to surrender, or in any way
notifying to tliem who they went
The keepere were wounded, one of
them seriously: — Held, that th#
prisoner who wounded them might.
SHOOTING, WOUNDING, ETC.
857
Qoder the circumstances, and tak-
ing into consideration the situation
and the time of the night, be prop-
erly convicted under 9 Geo. 4, c. 31 ,
88. II, 12. Rex V. Tayhr, 1 Q. &
P. 266-Vaughan.
6. was charged with a felonious
attempt to shoot He was proved
to have presented a pistol at a man
and to have pulled the trigger, but
the pistol did not go off. On exam-
iiing the pistol, it was found that,
ii'it ever had been primed, it would
Ijave been impossible for the prim-
ing to have fallen out, and the pis-
tol must have gone off: — Held,
Aat there was no case to go to the
jury. Reg, v. Gamble^ 10 Cox, C.
C. 545— Russell Gumey.
Indk^mmii] — Upon the trial of
ao mdictment for shooting, with in-
tent to murder a person unknown,
it must he proved that there was an
intent on the part of the prisoner
to murder some particular person.
%. y.LaUammty 6 Cox, C. C. 204
— Jervis and Alderson.
In an mdictment for maliciously
shooting, under 7 Will. 4 & 1 Vict,
c 85, g. 4, it was sufficient to say,
with a certain loaded gun, without
going on to state with what it was
waded. Reg. v. Cox, 3 Cox, C. C.
58-Platt
If an indictment for shooting an-
oti^er, with intent to murder, m all
the counts avers that the pistol was
loaded with powder and a leaden
hollet, it must appear that the pis-
tol was loaded with a bullet, or the
prisoner will be entitled to an ao-
qnittal. Rex v. Hughe$, 5 CAP.
126 -Park, Parke and Bolland.
See Reg. y. Oxf<yrd, 9 C. & P. 525.
On an indictment for maliciously
Aootiing, one act of shooting may
w laid in one set of counts, as being
with intent to murder H. ; and in
toother set of counts as with intent
to murder L. Rex v. Holt, 7 C. &
P.5l9^Littledale.
An indictment which charges that
the prisoner felonioudy assaulted J.
H., and, by feloniously " drawing
the trigger of a pistol, loaded with
gunpowder and a leaden bullet,
then and there feloniously and ma-
liciously did attempt to discharge
the said pistol at J. H.," with in-
tent to murder him, is good, with-
out stating that 'Hhe said pistol"
was " so loaded as aforesaid." Reg.
V. jRwfcer, 1 C. <fc K. 254— Rolfe.
Evidence.'}-— An indictment on 7
Will. 4 & 1 Vict. c. 85, ss. 3. and 4,
charged the prisoner with attempt-
ing to discharge at the prosecutor
a certain blunderbuss, loaded with
gunpowder and divers leaden shots.
The prisoner, on a refusal by the
prosecutor to give up some title-
deeds, addressed him in these words :
— " Then you are dead man," and
immediately unfolded a great coat
which he had on his arm, and took
out a blunderbuss, but was not
able to raise it to his shoulder, or
point it directly at the prosecutor,
before he was seized. The blunder-
buss was found to be very heavily
loaded, but the Hint had dropped
out, and was discovered between
the lining of the great coat : — ^Held,
that the evidence was not sufficient
to sustain the charge in the indict-
ment. Reg. V. LewiSj 9 C. <fc P.
523 — Ai*abin, Serjt. ^
Upon an indictment for mali-
ciously shooting, it appeared that
there were two shootings; but it be-
ing questionable whether the first
shootmg was by accident or design:
— Held, that proof of the prisoner
having intentionally shot at the per-
son the second time, was evidence
to shew that the first was wilful.
Rex V. Voke, R. & R. C. C. 531.
Evidence of a wound having been
made by the contents of a pistol,
although no ball was found, and of
its havmg made a loud report, with
reference to its size, is sufficient to
go to a jury of its having been
loadcMi with ball. Rex v. nestanj
1 Leach, C. C. 247.
An indictment charged the pris-
358
MURDER, MANSLAUGHTER, ETC,
oner in a first count with unlaw-
fully and maliciously wounding,
and in the second count with un-
lawfully and maliciously inflicting
grievous bodily harm. The jury
K>und the prisoner guilty of an
assault : — Held, that he could be
properly convicted of an assault on
the indictment under 24 & 25 Vict,
c. 100, R. 20, as the offences charged
were misdemeanors, and each of
them necessarily included the lesser
misdemeanor of an assault. JRe^. v.
Taylor, 1 L. R., C. C. 194 ; 11 Cox,
C. C. 261.
(d^ Inflicting Grievotis Bodily
Harm.
StattUe.Y^By 24 & 25 Vict. c.
100, s. 18, " whosoever shall unlaw-
" fully and maliciously, by any
" means whatsoever, wound or cause
" any grievous bodily harm to any
" person, or shoot at any pei'Son,or,
"by drawing a trigger or in any
"other manner, attempt to dis-
" charge any kind of loaded arms
" at any person, with intent, in any
" of the cases aforesaid, to maim,
" disfigure or disable any person, or
" to do some grievous bodily harm
" to any person, or vAXh intent to
"resist or prevent the lawful ap-
" prehension or detainer of any per-
" son, shall be guilty of felony, and,
" being convicted thereof, shall be
"liable, at the discretion of the
" court, to be kept in penal servi-
" tude for Ufe, or for any term not
" less than I^^q years (27 A 28 Vict.
" c. 47), or to be imprisoned for any
" term not exceeding two years,
" with or without hard labour, and
" with or without solitary confine-
"ment." (Previous provision, 7
Will. 4 & 1 Vict. c. 85, s. 4.)
As to what are loaded arms, see
sect. 19.
By 8. 20, " whosoever shall un-
" lawfully and maliciously wound
" or inflict any grievous bodily
" harm upon anv other person,
" either with or without any weap-
on or instrument, shall be guilty
(C
" of a misdemeanor, and, being ooo-
" victed thereof, shall be liable, at
" the discretion of the court, to be
" kept in penal servitude for the
" term of five years (27 & 28 Vict
" c. 47), or to be imprisoned for
" any term not exceeding two years,
" with or without hard laboar."
{Former provision, 14 & 15 Vict c
19, 8. 4.)
Cutting,]— On an indictment for
maliciously cutting, malice a^nst
the individual cut is not essential,
general malice is suflUcient Bexy.
HufU, 1 M. C. C. 93.
The question is not what the
wound is, but what wound was in-
tended. Jb.
Where a party having a deadly
weapon lawfully in his possesaoo in
his own defence, but without hav-
ing previously retreated as far u
possible, cut a person who was as-
saulting, he was guilty of felonj,
under 7 Will. 4 & 1 Vict. c. 85, s.
4, if he intended grievous bodily
harm. Heg. v. Odgers, 2 M. A Rob.
479— Cresswell.
Cutting a female child's private
parts, so as to enlarge them for the
time, was consider^ as doing her
grievous bodily harm, within 43
Greo. 3, c. 58, and done witli that
intent, although the hymen w%s not
injured, the incision was not deep,
and the wound eventually was not
dangerous. Jiex v. Cox, R. d; R.
C.C.862; 1 Leach, C. C. 71.
A striking over the face and head
with the sharp or the cbiw part of
a hammer was a suflicient cutting,
within 43 Geo. 3, c 58. lUx v.
Atkinson, R. & R. C. C. 104.
On an indictment for cattii^, it
appeared that the prisoner was seen
in the night entering an onthoose
with intent to commit a felony, by
a person who went and in^^nned
the prosecutor of it. The latter in
about a quarter of an hour went in
search of the prisoner to apprehend
him. The prisoner had left the
prosecutor's premises, and was foond
GRIEVOUS BODILY HARM.
359
in a neighbouring garden, crouched
down under a tree, with a drawn
sword in his hand. The prosecutor
apprehended the prisoner, who cut
and wounded him. It was objected
that the prosecutor had no right to
apprehend the prisoner, and that if
death had ensued, it would have
been manslaughter only. The pris-
oner was convicted, and the judges
held the conviction right. Itex v.
Howarth, Car. Supp. 231 ; 1 M. C.
C. 207.
On a charge of feloniously cut-
ting, with intent to do grievous
bodily harm, it was immaterial
whether, if death had ensued, the
crime would have been murder or
manslaughter. JReq. v. NickoUs, 9
C. & P. 267— Guniey.
Wounding, ] — To constitute a
wound it is necessary that there
should be a separation of the whole
fikin ; and a separation of the cuticle
or upper skin only is not sufficient.
Beg, V. M'LoughUn, 8 C. & P. 635
—Coleridge.
In criminal cases, the definition
of a wound is, an injury to the per-
son bv which the skin is broken.
Moriarty v. Brooks, 6 C. & P. 684
— Lyndhurst ; S, P., Rex v. ^c^-
«tf, 1 M. & Rob. 526--Parke.
A blow given with a hammer on
the face, which broke the lower jaw
in two places ; the skin was broken
internally, but not externally, and
there was not much blood, was a
wounding within 7 Will. 4 & 1
Vict. c. 85, s. 4. Reg. v. Smithy 8
C.& P. 173— Parke.
A. asked permission at the house
of B. to go and take some ashes,
which he was allowed to do ; but
as he was coming out B.'s appren-
tice saw a copper tea-kettle among
the ashes *in A. s basket, and told B.
B. laid hold of A. to secure him, on
the charge of stealing the tea-kettle,
and in a scuffle A. and B. fell, and
A cut B. with a knife : — Held, to
be a wounding within 7 Will. 4 &
1 Vict. c. 85, 8. 4, provided Hiat
the jury was satisfied that A. had
stolen the kettle, as B. had then a
right to apprehend him. Reg. v.
Price, 8 C. & P. 282--Aldei'son.
Evidence of a violent kick on the
private parts of a woman, which
caused a flow of blood mingled
with urine, for some time auer-
wards, was not a wounding within
7 Wili. 4 A 1 Vict. c. 85, s. 4, no
proof being given as to the precise
point whence the blood originally
came. Reg. v. Jones, 8 Cox, C. C.
441.
A rupture of the lining mem-
brane of the urethra, followed by a
small flow, such rupture being
caused by a kick on the private
parts of the prosecutor, is a wound-
ing within 7 Will. 4 & 1 Vict. c.
85, 8. 4. Reg. v. Waltham, 3 Cox,
C. C, 442.
To constitute the offence of
wounding with intent to do grievous
bodily harm, under 7 Will. 4 & 1
Vict. c. 85, s. 4, the wound must be
direct, and therefore an injury occa-
sioned by the prosecutor falling on
some iron trams in consequence of
a blow from the prisoner, was not
witliin that statute. Reg. v. Spooner,
6 Cox, C. C. 392.— Talfourd.
In a case of wounding with in-
tent to do grievous bodily harm, it
is not essential that, if death had
ensued, the offence of the prisoner
should be murder ; therefoi'e, if it
appears that, had death ensued, the
offence would be manslaughter only,
this is no ground of acquittal of the
felony. Reg. v. Griffiths, 8 C. <fc. P.
248 ; 2 M. C. C. 40.
A broker and bis man having
levied a distress for rent, the man
left in possession was ejected. The
owner of the goods was not in the
room at the time of the levy, and it
was not proved that he was a party
to the turning out of the man, or
that he knew of the distress being
levied, but on the broker and his
assistants breaking open the outer
door to re-enter, the prisoner struck
one of the assistants with an axe on
360
MURDER, MANSLAUGHTER, ETC.
the forehead : — ^Held, that, under
these circumstances, the prisoner
must at least be found guilty of an
assault ; and also, that, although he
miglit be found guilty of wounding,
with intent to do grievous bodily
harm, yet he could not be found
guilty of wounding, with intent to
maim and disable. JReg, v. SttUtvan,
Car. & M. 209— Parke.
Where three persons were indict-
ed jointly for cutting and wounding,
and the third of them did not come
up to the spot until after one of the
first two had got away, and then
kicked the prosecutor while he was
on the ground struggling with the
other : — Held, that the two who
jointly assaulted the prosecutor, and
wounded him at first, might be
found guilty either of the felony, or
of the assault only, but that the
third must, under the circumstan-
ces, be acquitted altogether. Beg.
V. M'Phane, Car. & M. 212— Tin-
dal.
On an indictment for wounding,
with intent to do some grievous
bodily harm, it appeared that two
persons, one of whom was the pris-
oner, attacked and wounded the
prosecutor, and robbed him ; it was
not proved which of the persons in-
fiicted the wound : — ^Held, that if
the prisoner indicted the wound on
the prosecutor, with intent to rob
him, he having at the same time an
intent to do him some grievous bod-
ily harm to efiectuate such his in-
tention of robbing, he ought to be
convicted on this indictment. Reg,
V. Bowen^ Car. & M. 149 — Cole-
ridge.
Held, also, that even if the pris-
oner's was not the hand that innict-
ed the wound, he ought to be con-
victed, if the jury was satisfied that
the two persons were engaged in
the common purpose of robbing the
prosecutor, and that the other per-
son's was the hand which inflicted
the wound. Ih,
On an indictment for wounding,
the jury, upon the question wheth-
er, if death liad ensued, the offence
would have been murder, i^iould
consider whether the instrument
employed was, in its ordinary use,
likely to cause death ; or if it is an
instrument not likely, under ordin-
ary circumstances, to cause death,
whether it was used in such an ex-
traordinary manner as to make it
likely to cause death, either by con-
tinual blows or otherwise. Rex v.
Hoiolett, 7 C. & P. 274r— Alderson.
Cdses under the Repealed Statute
of 9 Geo. 4, c. 31, ss. 11, 12.]—
breaking a person's collar bcoe,
and brmkug him, was not a wonnd-
ing within 9 Geo. 4, c. 31, a. 12.
Rex V. Woody 4 C. & P. 381.
If a person, for the purpose of
accomplishing a robbery, wounded
by means of kicking the shins of the
party whom he was endeavoring to
rob, he was punishable under 9 Gea
4, c. 31, s. 12,if the jury found that
his intent was either to disable or
do grievous bodily harm. Rex v.
SkadhoU, 5 C. «& P. 504— Deoman
and Yaughan.
Biting off the end of a person'fl
nose was not a wounding within 9
Geo. 4, c. 31, s. 12 ; nor was biting
off a joint from a person's finger, as
the statute was intended only to
apply to wounding produced by
some iilstrument, and not by tfa«
hands or teeth. Rex v. Harris^ 7
C. & P. 446— Patteson ; S. P., Jen-
n%ng*s case^ 2 Lewin, C. C. ISO—Al-
derson.
But a woimd from a kick with a
shoe was within 9 Geo. 4, c 31.8.
12. Rex V. Briggs, 1 M. C. C. 318;
1 Lewin, C.C. 61.
The prisoner struck the prosecu-
tor on the side of his hat with an
air-gun, with great force, by which
the prosecutor was wounded, bul
the wound was made by the vio-
lence with which the hat was stmdu
the weapon used by the priscmer
never coming in contact with the
head 'of the prosecutor : — Held, a
wounding within 9 Geo. 4, a 31, sa.
GRIEVOUS BODILY HARM.
861
11 & 12. Eex Y. Sheard, 1 C &
P. 846.
Maliciously throwing oil of vit-
riol over the prosecutors face, with
intent to disfigure, and so wounding
his face, was not a wounding with-
in 9 Geo. 4, c. 31, s, 12. Bex v.
lAarwo, 1 M. C. C. 456 ; S. P.,
SemhaWs ca$e, 2 Lewin, C. C. 135.
Infiictiiig a wound on a person by
throwing a sledge-hammer at him,
wag a wounding within 9 Greo. 4, c."
31,6^ 11, 12, although the sledge-
hammer, from being olunt, was not
an in^nunent calculated to inflict a
woraid. JRex v. Withers, 4 C. &
P. 446 ; 1 M. C. C. 294.
If a person struck another with a
bludgeon, and broke the skin and
drew blood, this was a sufficient
wounding within 9 Geo. 4, c. 31, ss.
11, 12. Bex y. Payne, 4 C. & P.
558— Patteson.
hdictmerU,'] — On an indictment
for wounding with intent, the ac-
tual intent must be proved. Beg.
V. Oa, 1 P. & F. 664— Bramwell.
A party may be guilty of unlaw-
fhlly wounding, though there is no
intent to wound, if the weapon used
is calculated to wound, and known
to be such. Ih.
In an indictment for wounding
with intent to murder, the instru-
ment or means by which the mur-
der was inflicted need not be stated,
ttid, if stated, do not confine the
prosecutor to prove a wound by
sach means. Bex v. Briggs, 1 M. C.
G,318; 1 Lewin, C.C. 61.
An indictment for cutting and
wounding, which charged the of-
fence to nave been committed '' fel-
oniously, wilfully and maliciously,"
was bad, the words of 9 Geo. 4, c.
31, 68. 11 <fe 12, being " unlawfully
ttid malicioQsly." Mex v. Byan, 7
C.&P.854; 2M.C. C. 15.
Grievous Bodily Harm,'] — Where
a woman jumps out of a window
for the purpose of avoiding the vio-
lence of her husband, and sustains
Fish. Dig.— 27.
dangerous bodily injury, the hus-
band cannot be convicted of an at-
tempt to murder, unless he intended
by his conduct to make her jump
out of the window. Beg, v. Dono^
vcsn, 4 Cox, C. C. 399 — Alderson.
A woman left her infant child, on
a cold wet day, exposed in an open
field, intending that it should die.
It was feund there after some hours,
nearly dead from congestion of the
lungs* and heart, the efiects of the
exposure. By care, however, the
child was restored in a few hours, and
there then remained no bodily injury
either to the lungs or heart, or other-
wise : — Held, that a conviction un-
der 7 Will. 4 & 1 Vict. c. 85, s. 2,
for causing a bodily injury danger-
ous to life, could not be supported,
as there was no lesion of any part of
the organs of the child. Beg. v.
Gray, Dears. & B. C. C. 803 ; 7
Cox, C. C. 326 ; 3 Jur., N. S. 989 ;
26 L. J., M. C. 203.
To constitute grievous bodily
harm it is not necessary that the
injury should be either permanent
or dangerous ; if it is such as seri-
ously to interfere with comfort or
health, it is stifiicient. Beg, v.
Ashman, 1 F. A F. 88— Willes.
Where a party strikes at A., and
B., interposing, receives the blow,
he cannot be convicted of wound-
ing with intent to do grievous bodi-
ly harm to B. The use of a deadly
weapon is not justifiable in repel-
ling a common assault ; there must
be the apprehension of serious bodi-
ly danger or of robbery, or some
similar offence of violence. Beg,
V. ITeuiieU, 1 F. & F. 91— Crowder.
Verdict,]— By 14 & 15 Vict. o.
19, B. 5, (unrepealed), "if upon the
" trial of any indictment for any
" felony, except murder or man-
" slaughter, where the indictment
" alleges that the defendant did
" cut, stab or wound any person,
" the jury shall be satisfied that
"the defendant is guilty of the
"cuttmg, stabbing or wounding
862
MURDER, MANSLAUGHTER, ETC.
*^ charged in the indictment, but
^ are not satisfied that the defend-
" ant is guilty of the felony charged,
" the jury may acquit the defend-
'^ ant of such felony, and find him
uilty of unlawfully cutting, stab-
in^ or woundine, and the de-
'^ fendant shall be liable to be pun-
'^ished in the same manner as if
** convicted upon an indictment for
** the misdemeanor of cutting, stab-
" bing or wounding.
Where a prisoner is indicted for
feloniously cutting and wounding,
he will not be permitted to plead
guilty to a common assault merely.
He must plead to the felony, and if
no evidence of the felony is offered
he may be acquitted of the felony
and found guilty of the assault on
his own confession. lieg. v. Cal-
vert, 3 C. «fc K. 201— Maule.
A., an under servant, who had
lost his right arm, was beaten by
B., an upper servant, for miscon-
duct. A. took out a knife and
wounded B. : — Held, on a trial for
feloniously wounding, that if A.
did this in self-defence only he
ought to be acquitted ; but if A.
used more violence than was neces-
sary for that purpose he ought to
be convicted of the misdemeanor
of wounding only, under 14 ife 15
Vict, c. 12, s. 5. Heg. v. ITuntlej/,
3C. & K. 142— Piatt.
To an indictment for stabbing,
was added a count for a common
assault. The trial had considera-
bly advanced before this was dis-
covered, and the judge allowed the
case to proceed, and left it to the
jury without noticing the count for
the common assault. The jury re-
turned a verdict of guilty, which
was entered on the count for stab-
bin^ with intent to do grievous
bodily harm. The judges held the
conviction right. Seg. v. Jones,
8C. &P.776; 2M. C. C. 94.
An indictment contained counts
charging an assault, and unlaw-
fully and maliciously inflictiog
grievous bodily harm, and also %
count for a common assault At
the trial evidence was given tlukt
the prisoner inflicted serious bodily
injuries upon the prosecutor. The
jury found the prisoner guilty of
an aggravated assault without pfe>
meditation, and that it was done
under the influence of passion:—
Held, that the verdict was rightly
entered on the record on the counts
charging an assault and uulawfully
and mstliciously inflicting grievous
bodilv harm. Heg. v. Spmrow, 8
Cox,'C. C. 893; Bell, C. C.298;
30 L. J., M. C. 43.
Upon a count for assaulting,
beating, wounding, and occasion-
ing actual bodily harm against the
statute, the prisoner may be con*
victed of a common assault lUg.
V. Oliver, 8 Cox, C. C. 384; B^
C. C. 287; SOL. J.,M. C. 12.
Upon an indictment charging the
defendants in the firfvt count with
inflicting grievous bodily harm ; in
the second count with unlawfiillj
and maliciously cutting, stabbinff
and wounding; and in the thira
count with assaulting and occasion-
ing actual bodily harm ; the jury
returned a verdict of guilty of %
common assault. The chairman
declined to take that verdict, on
the ground that a common assanlt
was not included in the indictment,
and told the mrj to reconsider
their verdict. The jury then fbnnd
the defendants guilty, and a verdict
was entered of guilty of an assaolt
occasioning bodily harm, where-
upon the chairman sentenced th6
prisoners: — Held, that the firt*
verdict oufirht to have been taken,
and that t^e second ought not, and
that the prisoners ou^ht not to un-
dergo the sentence ; that there had
been a mis-trial, and that a venire
de novo should issue. JReg, v. !'««•
don, 9 Cox, a C. 91 ; 81 L J.
M. C. 70.
RESISTING APPREHENSION.
363
(e) By Besuting or Preventing Ap-
prehension or Detainer of Per-
eons.
On an indictment for stabbing,
Tith intent to resist lawful appre-
bensioD, it must be shewn that the
officer was either present or came
armed with a warrant. Hex v. Dg-
ion, I Stark. 246— Le Blanc.
The offence of maliciously cut-
ting, with intent to resist lawful a(>-
prMension, is not committed where
the party has no notice of the pur-
pose of the officers. Pex v. Hick-
eUs, 3 Camp. 68.
A prisoner was indict€d for cut-
ting and maiming with intent to
prevent his apprehension for an
offence for which he was liable to
be apprehended, to wit, for that he
did violently as^^ault and beat A.
He was taken before the magis-
trates by the prosecutor, on a war-
rant directed to him for an assault
on A., and ordered to find bail,
which he refused to do, and whilst
the commitment was being made
oat escaped. The prosecutor, by
verbal directions of the magis-
trates, pursued the prisoner, and,
in attempting to apprehend him, he
was cut by nim : — Held, well con-
victed, and that the oifence was
rightly described. JRex v. Wil-
Ham, 1 M, C. C. 387.
A constable who had verbal di-
rections from the magistrates to
apprehend all persons playing at
tnimblerig, attempted to appre-
hend the prisoner and his compan-
ions playing at thimblerig in a pub-
lie fair. The constable, with assist-
ance, took one of the party ; but
the prisoner and the rest rescued
him and got off. In the evening
of the same day the constable
found the prisoner in a public-
house, not having been able to find
him before, and endeavoured to
a]:^hend him, stating it was for
what he had been doing at the fair.
He escaped into a privy, and the
constable called the prosecutor to
bis assistance, and together they
broke open the privy-door, and en-
deavoured to take him, who there-
upon stabbed the prosecutor. A
conviction for feloniously cutting
and maiming was held wrong. Hex
V. Gardener, 1 M. C. C. 39(>.
A conviction on an indictment
for maliciously cutting a police
officer, with intent to resist and
prevent the arrest and detainer of
a prisoner for a certain oifence, for
which he was liable by law to be
apprehended and detained, viz., for
committing damage and injury up-
.on certain plants and roots in a
garden, is good. Hex v. PVa^er^
1 M. C. C. 419.
A gamekeeper, accompanied by
his assistant, met four poachers on
the h^hway, one carrying a gun,
another a gun ban*el, and the other
two bludgeons. There had been
previously -two shots fired. The
gamekeeper said to his ^assistant,
" Mind tlie gun," and the assist-
ant Utid hold of it, and then the
gamekeeper called to another per-
son ; upon this three of the poach-
ers knocked him down and stunned
him, and when he came to himself
he saw all of them near, and one
said as they passed him, " D — n
them, we have done them both,**
and one turned back and cut him
on the left leg, and all then ran
away. It was objected, first, that
the wounding of the leg was the
act of one alone, and there was no
evidence to shew which of them it
was ; — secondly, that, from the ex-
pressions used, it was evident that
both were thought to be dead, and
there could be no intent to murder ;
— and thirdly, that the prisoner be-
ing on the highway, the gamekeep-
er and his assistant had no right to
interfere with them. The prisoners
were convicted, and the judges held
the conviction right. Rex v. War-
ner, 5 C, & P. 625 ; 1 M. C. C.
880.
On an indictment for cutting and
maiming with intent to do grievous
bodily harm, a prisoner may be
864
MURDER, MANSLAUGHTER, ETC.
convicted whose main and princi-
pal intent was to prevent his lawful
appreliension, or, in order to effect
the latter intent, he also intended
to murder, or do grievous bodily
harm. JRex v. GiiloWj 1 M. C. C.
85 ; 1 Lewin, C. C. 57. See JRex
V. Thompaony 1 M. C. C. 80 ; Hex
T. Davis, I C. A P. 306.
A police-officer, having been- as-
saulted by W., attempted, two
hours afterwards, to take him into
custody. W. resisted and wounded
the officer : — Held, that , the appre-
hension would not have been law-^
ful, and that W. could not be con-'
victed of wounding with intent to
Srevent his lawful apprehension.
leg. V. Walker, 2 C. L. R. 485 ;
Dears. C. C. 358 ; 23 L. J., M. C.
123; 6 Cox, C. C. 371.
An indictment under 43 Geo. 3,
o. 58, for cutting and maiming
Mrith intent to murder and disable,
was not supported by evidence of
a cutting with intent to produce a
temporary disability in a person
lawfully apprehending the prisoner
until he could effect his own escape.
Bex V. Boyce, 1 M. C. C. 29.
In an indictment on 43 Geo. 3, c.
58, the intent laid in several counts
was to murder, to disable, or to do
some grievous bodily harm; the
intent found by the jury was to
prevent being apprehended ; — Held,
that the conviction was bad, for
that, if the intent was to prevent
the lawful apprehension of the pris-
oner, it should be laid so. Bex v.
Duffin, R. & R. C. C. 365 ; 1 East,
P. C. 437.
(f ) JBy means of Gunpowder, Ex-
plosive Substances, or other Dan-
gerous Things.
With Intent to ifurder.]— By 24
& 25 Vict. c. 100, s. 12, "whoso-
" ever, by the explosion of gun-
" powder or other explosive sub-
^' stance, shall destroy or damage
" any building with intent to com-
" mit murder, shall be guilty of
** felonji and, being convicted there-
'' of shall be liable, at the discre-
" tion of the court, to be kept in
" penal servitude for life, or for any
" term not less than five years (27
" & 28 Vict, c. 47), or to be impm>
" oned for any term not ^xceedins
" two years, with or without ham
^^ labour, and with or without soli-
" tary confinement." {JFbrmer m-
act9nent, 9 <& 10 Vict c 25, s. 2.)
Upon a charge of murdering »
person named by means of explo-
sive grenades, evidence of the death
and wounds suffered by others at
the same time, is admissible for the
purpose of proving the character
of the grenades. Beg, v. Bernard,
1 F. & F. 240— Campbell.
A witness being called to prove
that he manufactured certain gren-
ades, by whicli the death in ques-
tion had been caused : — Held, that
the name of the person who gave
the order for them might be aS^ed
as a fact in the transaction, even
though he had not then been shewn
to be connected with the prisoner.
lb.
With Intent to Inflict Grievm
BodUy Harm.]'-By 24 A 25 Vict
c. 100, s. 28, " whosoever shall nn-
" lawfully and maliciously, by the
" explosion of gunpowder or other
" explosive substance, bum, maim,
" disfigure, disable, or do any griev-
" ous Dodily harm to any person,
" shall be guilty of felony, and,
'^ being convicted thereof, ^all be
^' liable, at the discretion of the
" court, to be kept in penal servi-
'^ tude for life, or for any tenn not
'' less than five years (27 & 28
" Vict. c. 47), or to be impiisooed
^' for any term not exceeding two
" years, with or without hajd la-
" Dour, and with or without soK-
" tary confinement, and, if a male
" under the age of sixteen years
" with or without whippiM.*' (For^
mer provision, 9 <fe 10 "^ct, c. 25,
s. 3.)
By s. 29^ '' whosoever shall on-
''lawfully and maliciously cMxm
SETTING FIRE TO SHIPS.
865
"any guDpowder or other explo-
" me substance to explode, or send
" or deliver to or cauee to be taken
"or received by any person any
" explosive substance or any other
"dangerous or noxious tiling, or
"pat or lay at any place, or cast
" or throw at or upon or otherwise
"apply to any person, any corro-
**ave fluid or any destructive or
"explosive substance, with intent
" in any of the cases aforesaid to
"bum, maim, disfigure, or disable
" any person, or to do some griev-
"ous bodily harm to any person,
"cihall, whether any bodily injury
"be effected or not, be guilty of
"felony," {Punishment ike same
as in the last section. Former pro-
msionSy 9 & 10 Vict. c. 25, s. 1 ; 7
Will. 4 & 1 Vict. c. 85, s. 5.)
Boiling water was a dangerous
thing within the latter act. Meg. v.
ftw/orrf,2 C. & K. 129-Rolfe.
A woman pouring boiling water
over the face and mto the ear of
her husband while he was asleep,
whereby he was temporarily blind,
aod permanently deaf on one side :
—Held, that she might be convict-
ed of felony under 7 Will. 4 & 1
Vict. c. 85,%. 5. lb.
By s. 80, " whosoever shall un-
" lawfully and maliciously place or
"throw in, into, upon, against, or
"near any building, ship, or vessel,
" any gunpowder or other explosive
" substance, with intent to do any
" bodily injury to any person, shall,
" whether or not any explosion take
"place, and whether or not any
** bodily injury be effected, be guilty
" of felony, and, being convicted
" thereof, diall be liable, at the dis-
" cretion of the court, to be kept
"m penal servitude for any term
" not exceeding fourteen years, and
" not less than five years (27 & 28
"Vict. c. 47), or to be imprisoned
" for any term not exceedmg two
"years, with or without hard la-
"bour, and with or without soli-
"tary confinement, and if a male
"under the age of sixteen years,
" with or without whipping." {For-
mer provision^ 9 & 10 Vict. c. 25,
s. 6.)
(g) By seeing Fire to or casting
away Ships,
By 24 & 25 Vict. c. 100, s. 18,
" whosoever shall set tire to any
" ship or vessel, or any part thereof,
" or any part of the tackle, apparel,
" or funiiture thereof, or any goods
" or chattels being therein, or shall
" cast away or destroy any ship or
" vessel, with intent in any such
" cases to commit murder, shall be
" guilty of felony, and, beinc; con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
" kept in penal servitude for life, or
"for any term not less than i&ve
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any tenn not
" exceeding two yeare, with or with-
" out hard labour, and with or
" without solitary confinement."
{Former enactment^ 7 Will. 4 <fc 1
Vict. c. 89, s. 4.)
(h) Preventing Rescue from Ship-
wreck.
By 24 & 25 Vict. c. IOC, s. 17,
" whosoever shall unlawfully and
" maliciously prevent or impede any
" person, being on board of or hav-
"ing quitted any ship or vessel
" which shall be in distress or wreck-
" ed, sti-anded, or cast on shore, in
" his endeavour to save his life, or
" shall unlawfully and maliciously
" prevent or impede any person in
" his endeavour to Fave the life
"of any such person as in this
" section first aforesaid, shall be
"guilty of felony." {PunishmerU
sa^ne as in last section. Former
provision^ 7 Will. 4 & 1 Vict. c.
89, s. 7.)
(i) By other Means.
By 24 & 25 Vict. c. 100, s. 15,
" whosoever shall, by any means
" other than those specified in anjr
" of the preceding sections of this
" act, attempt to commit murder,
866
MURDER, IVIANSIiAUGHTER, ETC.
" shall be giiilty of felony." {Pun-
ishment same as in the last but one
preceding section,)
7. JBy Spring Guns.
By 24 & 25 Vict. c. 100, s. 31,
" whosoever shall set* or place, or
" cause to be set or placed, any
" spring gun, man trap, or other en-
" gine calculated to destroy human
" life or indict grievous bodily harm,
" with the intent that the same or
'* whereby the Fame may destroy or
" inflict grievous bodily harm upon
" a trespasser or other person com-
" ing in contact therewith, shall be
"guilty of a misdemeanor, and,
"being convicted thereof, shall be
" liable, at the discretion of the
" cour^, to be kept in penal servi-
" tude for the term of five yeare (27
" & 28 Vict. c. 47), or to be impris-
" oned for any term not exceeding
" two years, with or without hara
" labour.
" And whosoever shall knowingly
" and wilfully peimit any sucn
" spring gun, man trap, or other en-
" gine, which may have been set or
" placed in any place then being in,
" or afterwards coming into, his
" posses,4on or occupation, by some
" other person, to continue so set or
" placed, shall be deemed to have
" set and placed such gun, ti-ap, or
" engine with such intent as afore-
" said.
" Provided, that nothing in this
" section contained shall extend to
" make it illegal to set or place any
" gin or tmp, such as may have
" been or may be usually set or
" placed with the intent of destroy-
" inir vermin.*'
"Provided also, that nothing in
" this section shall be deemed to
" make it unlawful to set or place,
" or cause to be set or placed, or
" to be continued set or placed,
" from sunset to sunrise, any spring
"gun, man trap or other engine
" which shall be set or placed, or
" caused or continued to be set or
" placed, in a dwelling-house for the
" protection thereof." (Fanner pro-
vision^ 7 <fc 8 Geo. 4, c. 18, ss. 1, 2,
3, 4.)
The plaintiff entered the defend-
ant's garden at night, and without
bis permission, to search for a stray
fowl, and, whilst looking closely
into some bushes, he came in con-
tact with a wire, which caused
something to explode with a load
noise, knocking him down and
slightly injuring his face and eyes:
— Held, in an action, that the de-
fendant was not liable for this in-
jury at common law, or in the ab-
sence of evidence that it was caawd
by a spring gun or other engine
calculated to indict i^rievoas bodily
harm, under 7 <fc 8 &eo. 4, c. 18, ^
1 . WooUon V. Dawkins, 2 C. B., N.
S. 412.
(8) lUtreating Children^ Appren-
tices^ Servafits, Idiots and Hdp
less Persons,
(a) The Offence.
StaJt\de:\—^^ 24 ^ 25 Vict c
100, s. 2G, " whosoever, being le-
" gaily liable, either as a master or
" mistress, to provide for any ap-
" prentice or servant necessaiy food,
" clothing, or lodging, shall wilfully
" and without lawful excuse refuse
" or neglect to provide the Fame, or
" shall unlawfully and maliciously
" do or cause to be done any bodily
" harm to any such apprentice or
" servant, so that the life of such
" apprentice or servant shall be en-
" dangered, or the health of such ap-
" prentice or servant shall have been
" or shall be likely to be, permanent-
" ly injured, shall be guilty of a
" misdemeanor, and, being convicted
" thereof, shall be liable, at the dis-
" cretion of the court, to be kept in
" penal servitude for the term of five
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not
" exceeding two years, with or with-
" out hard labour. (Formerprons-
iony 14 & 15 Vict. c. 11, s. 1.)
By 8. 27, " whosoever shall nn-
ILL-TREATING CHILDREN, ETC,
367
U
%k
k(
U
4(
tt
«
U
a
u
i(
u
u
lawfully abandon or expoBe any
child, being under the age of two
years, whereby the life of such
child shall be endangered, or the
health of 8uch child shall have
been or shall be likely to be per-
manently injured, shall be guilty
of a misdemeanor, and, being con-
victed thereof, shall be liable, at
the dh^cretion of the court, to be
kept in penal servitude for the
term of live years (27 & 28 Vict,
c 47), or to be imprisoned for
any term not exceeding two years,
with or without hard labour."
Children and Helpless Persons."] —
It is a misdemeanor to refuse or
neglect to provide sufficient food or
other necessaries for any infant of
tender years, unable to provide for
and take care of itself (whether such
infant is a child, an apprentice, or a
senant whom the party is obliged
by duty or contract to provide for),
BO as thereby to injure his health.
Re£, V. Friend, R. & K. C. C. 20—
Bayley. And see Rex v. Squire^ 1
Russ. C. & M. 80, 078.
A i^ingle woman, the mother of
an infant child, was indicted for ne-
glecting to provide it with sufficient
lood, the indictment alleging that
she was able, and had the means so
to do. There was no evidence of
the actual possession of means by
the mother ; but it was proved that
she could have applied to the re-
lieving officer of the union, and that
if die had so applied, she would
have been entitled to and would have
received relief adequate to the due
support and maintenance of herself
and child: — Held, that the allega-
tion in the indictment was not sup-
ported by this evidence. Reg, v.
Chandler y Dears. C. C. 453 ; IJur.,
N. S. 429 ; 24 L. J., M. C. 109 ; 3
C. L. R. 680.
If parents have not the means of
providing proper food and nourish-
ment for their infant children who
are incapable of taking care of
themselves, it is their duty to apply
for the assistance provided by means
of the poor laws. Reg, v. Mabbett^
5 Cox, C. C. 339.
A married woman who, having
a child under such circumstances,
wilfully neglects for several daya
going to the union for the purpose
of getting support for it, she know-
ing that such neglect is likely to
cause the child's death, is guilty of
manslaughter. lb.
Where any person imdertaking
the duty of supplying an infanf
with proper food and clothing, and
furnished with the means of dis-
charging that duty properly, wilful-
ly neglects to do so, with an inten-
tion to cause the death of the child,
or to do it some grievous injury,
and the child dies in consequence of
such neglect, such person is guiltv
of murder. Where the neglect is
culpable only, and not malicious,
such person is guilty of manslaugh-
ter. Where a parent supplies suffi-
cient food and clothing to another
for the purpose of administering to
his child, and that other person wil-
fully withholds it from the child,
and the parent is conscious that it
is so withheld, and does not inter-
fere, and the child dies for want of
proper food and clothing, the parent
IS guilty of manslaughter. lieg, y,
Bubb, 4 Cox, C. C. 455.
A married w^oman cannot be con-
victed of the murder of her illegiti-
mate child three years old, by omit-
ting to supply it with proper food,
unless it is shewn that her husband
supplied her with food to give to
the child, and that she wilfully ne-
glected to give it. Rex v. Saun-
ders, 7 C. <fe P. 277— Alderson.
A count charged a married wo-
man with the murder of her illegit-
imate child of three years old, by
omitting to supply it with sufficient
food, and also by beating ; it was
not shewn that her husband had
supplied her with food to give to
the child : — Held, that this count
could not be supported. Jb,
An unmarried woman, eighteen
868
MURDER, MANSLAUGHTER, ETC.
years of age, who usually supported
herself by her own labour, being
about to be confined, returned to
the house of her stepfather and
her mother. She was taken in la-
bour (the stepfather being absent at
his work), and in consequence of
the mother's neglect to use ordinary
diligence in procuring the assistance
of a midwife, the daughter died in
her confinement. There was no
proof that the mother had any
means of paying for the services of
a midwife : — Held, that no legal
duty was cast upon the mother to
procure a midwife, and therefore
that she could not be convicted of
the manslaughter of her daughter.
Heg. V. Shepherd, 9 Cox, C. C. 1 23 ;
L. & C. 147 ; 8 Jur., N. S. 418 ; 31
L. J., M. C. 102 ; 10 W. R. 297 ; 5
L. T., N. S. G87.
On an indictment for the murder
of an aged and infirm woman, by
confining her against her will, and
not providing her with meat, drink,
clothing, firing, medicines and other
necessaries, and not allowing her
the enjoyment of the open air, in
breach of an alleged duty ; if the
juiy thinks that the prisoner was
guilty of wilful neglect, so gross
and wilful that they are satisfied he
must have contemplated her death,
he will be guilty of murder ; but if
they only l£ink that he was so care-
less that her death was occasioned
by his negligence, though he did not
contemplate it, he will be guilty of
manslaughter. Heg. v. Marriott, 8
C. & P. 425— Patteson.
If a person does an act towards
another who is helpless, which must
necessarily lead to the death of that
other, the crime amounts to murder ;
but if the circumstances are such
that the person could not have been
aware that the result would be
death, that would reduce the crime
to manslaughter, provided that the
death was occasioned by an unlaw-
ful act, but not such an act as
shewed a malicious mind. Het;, v.
Walters, Car. & M. 164— Coltinan,
lU-treaHng Children.'] — When
from a conscientious religious con-
viction that God would heal the
sick, and not from any intention to
avoid the performance of their datj,
the parents of a sick child refuse to
call in medical assistance, tboagfa
well able to do so, and the chUd
consequently dies, it is not culpable
homicide. Jieg. v. Waggtaffe, 10
Cox, C. C. 530— Will«».
A parent who wilfully withholds
necessary food from his cliild, with
the wiliul determination by sach
withholding to cause the death of
the child, is guilty of murder if the
child dies. Reg. v. Oonde, 10 Cox»
C. C. 547— Channell.
A patent who has the means to
supply necessaries, but who n^i-
fently though not wilfully, with-
olds from a child food, which, if
administered, would sustain its life,
and the child consequently dies, is
guilty of manslaughter. lb.
In an indictment against a parent
for neglecting to provide sufficient
food aud clothing for a child of ten-
der years, for whom he is bound by
law to^provide, it is not necestvary
to aver that the parent was, at the
time of the alleged oifence, of suffi-
cient ability to perform the duty m
imposed upon him. Meg. v. Bf-
land, 17 L. T., N. S. 219 ; 1 L. K,
C. C. 99; 37 L. J., M. C. 10; 10
Cox, C. C. 569 ; 16 W. R. 280.
Deserting Children.l — ^It is an in-
dictable oifence to expose a per^m
to the inclemency of the weather.
JRex V. Itidleg, 2 Camp, 640, 653—
Lawrence.
A. was convicted of the roan-
slaughter of an infant female child,
on an indictment which stated the
death to have been caused by ex-
posure, whereby the child became
mortally chilled, frozen and be-
numbed : — Held, that as the death
was attributable to an act of mis-
feasance, it was necessarily implied
that the child was of such tender
age and feebleness aa to be incom-
APPRENTICES AND SERVANTS.
3G9
petent to take care of herself. Reg.
V. Water$, T. & M. 57 ; 1 Den. C.
C.356; 2C. A K. 864; 13 Jur.
180 ; 18 L. J., M. C. 53.
An indictment charging a party
witJ) abandoning a child with the
intent to burden a particular parish
with its maintenance, is not support-
ed by proof that the child was de-
posited by the accused in a parish
in a Fecret place where it was not
Ifltelyto be found. Req. v. Ren-
ihawy 1 1 Jur., C15 ; 2 Cox, C. C.
885— Parke.
A female abandoned her infant
child, having lirst deposited it in
the bottom of a dry ditch among
some nettles, by which it was not
hurt; and, in consequence of being
shortly afterwards found by other
penaonis, had not experienced any in-
convenience from the exposure : —
Held, that she could not be convict-
ed eitl)er of an assault with intent
to murder the child, or of a com-
mon asFault. lb.
Indictment charging A. with un-
lawfully leaving a child of a month
old, of which she had the care, in a
h^way in a parish, with intent
to burden the parish with the main-
tenance of the child, is bad, for not
negativing the settlement of the
child in 3ie parish, and for not al-
leging any injury done to the child
by the ^t of A. Reg. v. Cooper^
1 Den. C. C. 459 ; 2 C. & K. 876 ;
T. & M. 125 ; 13 Jur. 502 ; 18 L.
J., M. C. 168 ; 3 Cox, C, C. 559.
An indictment charging that a
woman deserted her bastard child
witli intent to throw the burden of
its maintenance on the parish, is
bad, without an averment that the
child had sustained any injury by
the abandonment, or that the wo-
nianhad the means of supporting
the child. Reg. v. JBogan, 2 Den.
C. C. 277 ; T. & M. 610; 15 Jur.
805; 20L. J.,M. C. 219; 5 Cox,
C. C. 255.
If a woman, in breach of her ma-
temal duty, wilfully abandons her
child of too tender years to provide
for itself, she is not indictable at
common law, unless her abandon-
ment causes an injury to the health
of the child. Reg. v. PhiUpoty
Dears. C. C. 179 ; 17 Jur. 399 ; 22
L. J., M. C. 113 ; 6 Cox, C. C. 140.
Evidence " that the child had suf-
fered injury, but not to any serious
extent,'^ does not sufficiently sup-
port an averment in the indictment
that the health of the child had been
greatly and materially injui'ed. lb.
If a woman leaves her child, a
young infant, at a gentleman's door,
or other place where it is likely to
be found and taken care of, and the
child dies, it will be manslaughter
only ; but if the child is left in a re-
mote place, where it is not likely to
be found, e. g. on a barren heath,
and the death of the child ensues, it
will be murder. Reg. v. WcUters^
Car. & M. 164 — Coltman.
Apprentices and Servants. ^ — If a
master, by premeditated negligence,
or hai'sh uFage, causes the death of
his apprentice, it is murder. Rex v.
Self, 1 Leach, C. C. 137 ; 1 East, P.
C. 226.
An indictment lies against a mas-
ter for not providing sufficient food
and sustenance for a servant, where-
by she became sick and emaciated.
Rex V. Ridley, 2 Camp. 650 — Law-
rence.
A master is not by law bound to
provide medical advice for his serv-
ant ; but with respect to an appren-
tice, a master is bound, during the
illness of his apprentice, to provide
him with proper medicines. Reg. v.
SnUih, 8 C. & P. 153— Vaughan
and Patteson.
A girl of sixteen is not an infant
of tender years, and therefore her
master and mistress, who have not
kept her under duress, are not guilty
of a misdemeanor in not supplying
her with sufficient food and nour-
ishment, whilst in their service.
Anon., 5 Cox, C. C. 279 — Coleridge
and Cresswell.
Where a master culpably neg-
370
MURDER, MANSLAUGHTER, ETC.
lects to supply proper and sufficient
food and lodging to a servant dur-
ing a time when the servant is re-
duced to and in such an enfeebled
state of body and mind as to be help-
less, and unable to take care of him-
self, or is under the dominion and re-
straint of the master, and unable to
withdraw himself from his control,
and the sei'vant's death is caused or
accelerated by such neglect, the
master is guilty of manslaughter.
Beg. X.Smith, L. & C. 607; 10
Cox, C. C. 82 ; II Jur., N. S. 695 ;
34 L. J., M. C. 153 ; 13 W. R. 816;
12 L. T., N. S. 608.
Idiots.'] — If one has bis idiot broth-
er, who is helpless, as an inmate in
his house, and omits to supjily him
with proper food, wai-mth, <fcc., he
is not indictable for the omission.
Bex V. Smith, 2 C. & P. 449— Bur-
rough.
A count stating that the defend-
ant did, whilst S., being a })erson of
unsound intellect and incapable of
taking care of himself, was under
the care, custody and control of the
defendant, keep, confine and impris-
on S., is bad, for want of a positive
averment that S. was under the
care, custody and control of the de-
fendant. Beg. V. PeUiam, 8 Q. B.
959 ; 10 Jur. 659 ; 15 L. J., 31. C.
105.
A. was convicted on an indict-
ment under 16 <fc 17 Vict. c. 96, s.
9, which charged that he, having
the care and charge of his wife, a lun-
atic, did abuse and ill-treat her : —
Held, that he was not a person hav-
ing the care or charge of a lunatic
within the meaning of the statute,
inasmuch as its provisions were not
intended to apply to persons whose
care or charge arises from natural
duty. Beg. v. Bundle, Dears. C. C.
482 ; 1 Ji\r., N. S. 430 ; 24 L. J.,
M. C. 129; 6 Cox, C. C. 549; 3
C. L. R. 659.
But a man who has voluntarily
taken upon himself the care of a lun-
atic brother in his own private house
is a person having the care and
charge of a lunatic within 16 & 17
Vict. c. 96, R, 9, and is liable to be
indicted for ill-treating him. Beg. v.
Porter, L. & C. 394 ; 9 Cox, C. C.
449 ; 10 Jur., K S. 547 ; 33 L. J.,
M. C. 126; 12 W. R. 718; 10 L
T., N. S. 306.
Prisoners of War.'] — It is ao in-
dictable ofience wilfully and malip
ciously to supply priFonere of war
with unwholesome feed not 6t tobe
eaten by man. Bex v. Treece, 2
East, P. C. 821.
Dttiy of Overseers.] — It is an in-
dictable oifence in an ovei'seer to
neglect to supply medical asEastance,
when required, to a pau])er labour-
ing under dangerous illness, althoogb
he was not in the workhouse, nor
had, previously to his illness, re-
ceived or stood in need of parochial
relief. Bex v. Warren^ R. <&; H. C.
C. 48, n. And see Hays v, Bryani.
1 H. Bl. 253 ; Bex v. Scamdjsrt, 7
C. & P. 277.
But an overseer is not indictable
for not relieving a pauper, unless
there is an order for his relief; ex-
cept in case of immediate emergen-
cy, when there is not time to get an
order. Bex v. Meredith, 'R. & Vi
C. C. 46. But see contrk, Bex v.
Booth, R. & R. C. C, 47, n, ; and 4
& 5 Will. 4, c. 76, ss. 52, 54.
(b) Indictment,
An indictment charging a feme
covert, living separately and apart
from her husband, with neglecting
and refusing to provide necessary
meat and drink for her servant,
and keeping her without suflident
warmth, whereby she becams ack
and emaciated, is insufficient, in not
alleging that the servant was of ten-
der yeai*s, and under the dominioD
and control of the defendant lUt
V. Bidiey, 2 Camp. 650— Lawrence:
So an indictment against a mas-
ter for not providing necessaries tar
his apprentice, ought to state that
INDICTMENT.
871
the apprentice was of tender yearn,
and nnable to provide for himf^lf.
Rex V. Fn4snd, K. <fe R C. C. 20.
An indictment against a woman
for mani^langhter, in neglecting to
sapply an inileint of tender age with
fittfiicient food, is bad, if it does not
state a duty to supply the child with
food ; but, if the indictment charg-
es that the person not supplied with
food was imprisoned by the party
accused, that sufficiently shews the
duty to supply food. Reg v. EcU
wards, 8 C. <fe'P. 61 1— Patteson.
A count charged that a lunatic
was the illeecitimate child of the de-
fendant, a female, who had means
for the comfortable support and
maintenance of both, whereupon it
became her duty to take proper care
of him, but that she did not take
proper care of him, but kept and
confined him in a dark, cold and un-
wholesome room ; neglected to pro-
vide him with proper clothing ; per-
mitted him to become dirty ; allow-
ed the room to become foul, so as to
canse unwholesome smells ; and kept
him without proper air, warmth and
exercise nccespary for his health, to
his damage and peril. Judgment
arrested : first, because no duty was
shewn, and secondly, because it was
not shewn that the conduct of the de-
fendant had, or must have occasion-
ed actual injury. Heg, y. PeJham^
8 Q. B. 959 ; 10 Jur. G59 ; 15 L. J.,
M. C. 105.
(c) Evidence,
An indictment for manslaughter
stated in a first count, that the de-
ceased was the apprentice of the pris-
oner, and that it was the duty of
the prisoner to provide the deceased
with proper nourishment and medi-
cine, and chari'ed the death to be
froni neglect. A second count charg-
ed that the deceased, " so being such
apprantice as aforcFaid," was killed
by the prisoner by over-work and
beating. No evidence was given of
any indenture, but a witness proved
that the prisoner told him that the
deceased was his apprentice : — Held,
that this was sufficient proof of the
allegation of the apprenticeship in
the second count, but not of that in
the first count. Reg, v. Crumpton,
Car. & M. 597— Patteson.
Semble, that where the charge is,
that the prisoner received a chud as
an- apprentice, an indictment, impoi-t-
ing that a former master, with the
child's consent, bound the child to
the prisoner, will be sufiicient evi-
dence of the receiving as an appi'en-
tice, though such indenture is execut-
ed by a stranger as trustee for the
former master, and not in the former
master's name. Rex -v. Friend, R.
&. R. C. C. 20.
9. Injuring Persons hy Wanton or
Furious Driving.
By 24 & 25 Vict. c. 100, s. 35,
" whosoever, having the charge of
" any carriage or vehicle, shall, by
" wanton or furious driving or racing,
" or other wilful misconduct, or by
" wilful neglect, do or cause to be
" done any bodily harm to any per-
" son whatsoever, shall be guilty of
" a mipdemcanor, and, being convict-
" ed thereof, shall be liable, at the
" discretion of the court, to b3 im-
" prisoned for any term not exceed-
" ing two years, with or without
" hai*d labour." {Former provision^
1 Geo. 4, c. 4.)
1 0. Indictment for Murder a7id Man-
slaughter,
i^brm.]— By 24 & 25 Vict. c. 100,
s.C," inanyhidictmentfor murder or
" manslaughter, or for being an ac-
" cessory to any murder or man-
" slaughter, it shall not bs necessary
" to set forth the manner in which
" or the means by which the death
" of the deceased was caused, but it
" shall be sufiicient in any indictment
" for murder to charge that the de-
*' fendant did feloniously, wilfully
^' and of his malice aforethought
" kill and murder the deceased ; and
^' it shall be sufiicient in any indict-
'' ment for manslaughter to charge
872
MURDER, MANSLAUGHTER, ETC.
^' that the defendant did feloniously
** kill and slay the deceased ;
" And it shall be sufficient in any
^^ indictment against any accessory
^' to any murder or manslaughter to
" charge the principal with the mur-
'^ der or manslaughter (as the case
^' may be) in the manner hereinbe-
'' fore specified, and then to charge
*^ the defendant as an accessory m
^' the manner heretofore used and ac-
" customed." {Similar to former
provision^ 14 ife 15 Vict.c. lOU, s. 4.)
A coroner's inquisition is an in-
dictment, within the above section,
and it Is, therefore, unnecessary to
set forth therein the manner in which,
or the means by which, the death
of the deceased was caused. Bef^. v.
Ingham, 5 B. & S. 257 ; 10 Jur.,
N. S. 968 ; 83 L. J., Q. B. 183 ; 12
W. R. 793 ; 10 L. T., N. S. 456 ; 9
CJox, C. C. 508.
By 9 & 10 Vict. c. 62, « it shall
" not be necessary in any indictment
*' or inquisition for homicide to al-
" lege the value of the instrument
" which caused the death of the de-
" ceased, or to allege that the same
" was of no value.
On an indictment for murder
against several, one cannot be con-
victed of an assault committed on
the deceased in a previous scuffle,
such assault not being in any way
connected with the cause of death.
JReg. V. Phelps, 2 M. C. C. 240 ;
Car. & M. 180.
The indictment must state, that
the act by which death ensued was
done of malice aforethought. Ilex
y. Nicholson, 1 East, P. C. 846.
In an indictment for manslaugh-
ter it is not necessary that it should
specifically charge that it was by an
act of omission. Reg. v. Smith, 1 1
Cox, C. C. 210— Lush.
Manner and Means of Death.
Before these Enactments.'] — An in-
dictment for murder must have set
forth particularly the manner of the
death, and the means by which it
was effected. Rex v. Sharwin, 1
East,P.C. 841,421.
An indictment for murder, which
stated wounds as contributing to the
death, need not have stated tlieir
length, depth, or breadth, i^ex v.
Mosley, 1 M. C. C. 97 ; 1 Lewin, C.
C. 189 ; S. P., Rex v. T<mdins(m,^
C. & P. 370.
An indictment for murder mast
state that the prisoner gave the de-
ceased a mortal wound. Rex ▼.
Lad, 1 Leach, C. C. 96.
Where death proceeded from siif-
fooation, by the swelling up of the
passage of the throat, aud such
swelling proceeded from wounds oc-
casioned by forcing things into the
throat, the statement might be, that
the things were forced into the
throat, and the deceased thereby
suffocated ; and it was not necesa-
ry to mention the immediate cause
of suffocation, namely, the swellus
of the throat. Rex v. Tye, R & it
C. C. 345.
A. was charged with sufibeatii^
B. by placing both her hands aboat
the neck of B:— Held, that die
might be convicted, if B. was suffo-
cated in any manner, either by A
or by any other person in her pres-
ence, she being privy to the com-
mission of the offence. Rex v. Od-
kin, 5 C. A P. 121— Park, Paike,
and Bolland.
If the death of a deceased wis
charged to be by suffocation, by
placing the hand on the mouth ci
the deceased, this allegation wai
made out, if the jury was satisfied
that any violent means were used
to stop the respiration of the deccas-
ed. Rex v. Waters, 7 C. & P. 250
— Denman.
In an indictment for murder, id
allegation that it was committBd
'^with a certain sharp instrument,
to the jurors aforesaid unkno^Ti,"
was sufficiently certain. Rex r,
Grounsell, 7 C. & P. 788— Psirke.
An indictment, which stated the
death to be by striking and beating
INDICTMENT.
373
the deceased with a piece of brick,
was not supported by proof that the
prisoner knocked him down with
his fist, and that the death was caus-
ed by the deceased striking his head
bj falling on a piece of brick, in
ooDsequenoe of the blow. Hex v.
KeSy, Car. C. L. 75 ; 1 M. C. C.
113; 1 Lewin, C. C. 193 ; Hex v.
WHffley, 1 Lewin, C. C. 127.
Or by proof that he knocked him
down by a blow upon the head, and
that he was killed by a mortal
wound received by falling on the
g pound. Jiex v. Thompson^ Car,
.L 75 ; 1 M. C. C. 139 ; 1 Lewin,
C.C. 194.
An indictment charging that the
prisoner a musket loaded with gun-
powder and a leaden bullet to,
against, and upon M. G., felonious-
Ij, ifcc, '' did shoot, discharge, and
vsA forth; and that he, with the
loiden bullet aforesaid, out of the
mnsket aforesaid, then and there
by the force of the gunpowder
80 shot, dischai^ed, and sent forth
as aforesaid, G. M. did strike," Ac,
was good, and the words " send
fiMrth,'' and the other added words
which did not occur in the usual
form, might be rejected as surplus-
age. Reg. v. Stokes, 2 G. <& E.
536; 17 L. J., M. C. IIG— C. C.R.
In an indictment for murder by
poisoning, it is sufficient, after al-
leging the administering the deadly
poison, and the mortal sickness occa-
sioned thereby, to aver " of which
said mortal sickness and distemper
ti»e said K S. died." Reg, v. San-
«^, 2 M. C. C, 227 ; Car. <fe M. 345.
An indictment for manslaughter
^t J. £. caused R. D. to become
mortally sick, of which mortal sick-
ness, especially of a mortal congestion
of the lungs and heart, occasioned by
the means aforesaid, he died, prop-
erly charged a death from a mortal
congestion caused by those means.
%. V. EUis, 2 C. & K. 470— Tin-
dal and Rolfe.
In a count for murder, the death
was stated to be by a blow of a
stick, and, in another count, by the
throwing of a stone. The jury
found the prisoners guilty of man-
slaughter, generally, on both counts,
and the judges held the conviction
right. Reg, v. 0' Brian, 2 C. <& E.
115; 1 Den. C. C. 9.
A. and B. were indicted for the
murder of C., by shooting him with
a gun. In the first count A. was
charged as principal in the first de-
gpree, B. as present, aiding and abet-
ting him. In the second count, B.
as principal in the first di^ree, A.
as aiding and abetting. The jury
convicted both, but said that they
were not satisfied as to which fired
the gun : — Held, first, that the jury
was not bound to find the prisoners
guilty of one or other of the counts
only. Reg, v. Dawning, 1 Den. C.
C. 52 ; 2 C. & K. 382.
Held, secondly, that, notwith-
standing the word " afterwards " in
the second count, both the counts
related substantially to the same
person killed and to one killing, and
might have been transposed without
any alteration of time or meaning.
lb.
An indictment charged A. with
giving a mortal wound to G. on the
27th of May, of which wound he
died on the 29th of May ; and that
Y. and Z., on the day and year first
aforesaid, were present, aiding and
abetting A. the felony aforesaid to
do and commit. The jury found all
the prisoners guilty of manslaugh-
ter ; and it was objected for Y. and
Z., that the felony of A. was not
complete till the death of G.; but
the judges held the conviction light.
Reg.y. O'Brian, 2 C. & K. 115 ; 1
Den, C. C. 9.
A. was indicted for the man-
slaughter of B. by a blow of a ham-
mer. No proof was given of the
striking of any blow, only of a souf-
fie between the parties. The ap-
pearance of the injury was consist-
ent with the supposition, either of a
blow with a hammer, or of a push
against the lock or the key of a
874
MURDER, MANSLAUGHTER, ETC.
door : — Held, that if it was occa-
sioned by a blow with a hammer,
or any other hard substance held in
the hand, it was sufficient to sup-
port an indictment ; but otherwise,
if it was the result of a push against
the door. Rex v. Martin^ 5 C. <&
P. 128— Park and Parke.
In an indictment for manslaugh-
ter, it was not necessary to allege
the causes merely natural which
conduced to the death of the party ;
it lyas sufficient to allege truly the
act with which the prisoner was
charged, if that act accelerated the
death. Rex v. Wehh^ 1 M. & Rob.
405 ; 2 Lewin, C. C. 196—Lynd-
hurst.
Name of Deceased.'] — If the name
of the party killed is not known, it
may be alleged to be a certain per-
son to the jurors unknown. Rex v.
Clark, R. & R. C. C. 358.
A bastard must not be desciibed
by his mother's name, till he has
fained that name by reputation.
b.
Where a deceased illegitimate
child had not been baptized, but the
mother had, on two occasions, called
it Mary Anne, a witness stating that
the putative father had ^aid he was
a Baptist : — Held, that it was right-
ly described as a female child whose
name was unknown. Rex v. Smithy
6 C. & P. 151 ; 1 M. C. C. 402 ; S.
P., Rex V. PouUon, 5 C. & P. 329.
In an indictment for the murder
of a bastard child, the absence of a
name is sufficiently accounted for
by the child being described as
" lately before born of the body of
J. H." Reg. v. Hogg, 2 M. & Rob.
380 — Denman.
An indictment for child murder
is bad for not stating the name of
the child or accounting for the omis-
sion: no conviction for concealing
the birth can take place. Reg, v.
Bich, 2 M. <fc Rub. 302— Coleridge
Bad Maule.
An illegitimate child, six weeks
old, baptized on a Sunday, and
from that day to the following
Tuesday called by its name of bau-
tism and its mother's surname, is
sufficient evidence to warrant the
jury in finding that the deceased
was properly described by those
names. Reg, v. JSvanSj 8 G. & P.
765 — Erskine.
An indictment charged the mur-
der of Eliza Waters. The deceased
was the illegitimate child of tiie
prisoner, whose name was Ellen
Waters ; and a witness said, on the
trial : *' The child was called Elia;
I took it to be baptized, and said it
was Eleanor Waters's child": —
Held, that it was not sufficient
proof that the surname of the de^
ceased was Waters. Rex, v. ITafert,
1 M. C. C. 457.
C. was indicted for manslaagfa-
ter, .in killing " a woman, wlwse
name to the jurors is unknown."
C. cohabited with the womui, and
sometimes said that she was his
wife, and sometimes that she was
not; and none of the witnessee
had heard her called by any name:
— Held, that if the jury was ratis.
fled that the deceased was not the
wife of the prisoner, and t^at the
name of the deceased could not be
ascertained by any reasonable dili-
gence, the description of the de-
ceased was proper ; but that, if the
jury should think that the deceased
was the wife of the prisoner, the de-
scription was bad; for, although there
was no evidence of her cnristiaB
name, she was entitled to the sur-
name of C, as being that of her hus-
band. Reg. V. Compbell, 1 G. & K.
82— Erskine.
Indictment stated, that the pris-
oner, a single woman, on the 27th
of August, 1844, brouglit forth a
male child alive ; that she after-
waixls, to wit, on the day and year
aforefaid, killed this child. Objec-
tion, that the indictment ought to
have stated the name of the child,
or that its name was unknown to
the jurors, overruled at the trial, <»
the ground that there was no pre*
DECLARATIONS IN ARTICULO MORTIS.
875
sumption, from the mere &ct of
biitfa, that the child had a name, it
being a bastard ; that the indict-
ment afforded no presumption of its
having acquired a name by reputa-
tion or baptism ; that an averment
that the name was unknown im-
plied the acquisition of some name :
—Conviction held right. Reg. v.
Wm$, 1 Den. C. C. 80 ; 1 C. & K.
722.
An indictment for murder of a
bastard child, described as Harriet
Strond, is not sustained by proof of
a child christened Harriet, and only
called by that name, though the
mother's name was Stroud. The
proper description is Harriet. A
child " whose name is to the jurors
unknown," is not good, because the
name of Harriet was known. Reg.
V. Stroud, 2 M. C. C. 270 ; 1 C. &
K.187.
"Not named," is a good descrip-
tion of an unbaptized infant child in
an indictment for its murder. Reg. v.
Waters, 2 C. & K. 864 ; 1 Den. C. C.
S56; T. & M. 57; 13 Jur. 130 ; 18
LJ.,M. C. 50.
But " not baptized " would be in-
sufficient. Ih. S. P., Reg. v. BUa,
8 C. & P. 773.
Amendment.l — -^ woman, charg-
ed with the murder of her husband,
^Tis described as A., the wife of J.
0., late of the parish of S., in the
county of W., labourer. The Judge
ordered this to be amended, by
striking out the word wife, and in-
serting the word widow. Reg. v.
Orchard, 8 C. & P. 565— Abinger.
11. Dedaratians in Arttctdo Mortis.
When admissible.'] — Nothing can
be evidence in a declaration in ar-
ticulo mortis which would not be so
if the party was examined. Rex v.
Sdlers, Car. C. L. 233.
It is a general rule in criminal
cases, that dying declarations are
admissible only where the death of
the deceased is the subject of the
charge, and the circumstances of the
death are the subject of the dying
declaration ; therefore, where a de-
fendant had been convicted of per-
jury, and obtained a rule nisi for a
new trial, pending which he shot
the prosecutor, and on shewing
cause against the rule for a new
trial, an affidavit of the dying dec-
larations of the prosecutor, relating
to the transaction out of which the
prosecution for ]>erjury arose, was
produced : — Held, that it was inad-
missible. Rex V. Mead, 4 D. <jb R.
120; 2B. &C. 605.
Dying declarations are admissible
only where the death of the de-
ceased is the subject of the charge,
and the circumstances of the death
the subject of the dying declaration.
Reg. V. Hind, Bell, C. C. 253 ; 8
Cox, C. C. 300 ; 6 Jur., N. S. 514 ;
29 L. J., M. C. 147 ; 8 W. R. 421 ;
2 L. T., N. S. 253.
Therefore, on an indictment for
feloniously using certain instruments
upon the person of a woman with
intent to procure a miscarriage, her
dying declaration is inadmissible.
lb.
The declarations of a deceased
made on the day he was wounded,
and when he believed he should not
recover, are admissible, though he
did not die until eleven days after-
wards ; and though the surgeon did
not think his case hopeless, and con-
tinued to tell him so until the day
of his death. Rex v. Mosley, 1 M.
C. C. 97 ; 1 Lewin, C. C. 79.
To render the declamtion of the
deceased admissible on a trial for
manslaughter, it must have been
made by him under an impression of
almost immediate dissolution ; and
it is not enough that the deceased
should have thougrht that he should
ultimately never recover. Rex v.
Van ButcheU, 3 C. & P. 629 -Hul-
lock and Littledale.
A dying declaration is equal, in
point of sanction, to an exammation
on oath, but the opportunity of in-
376
MURDER, MANSLAUGHTER, EtC.
vestigating the truth is very differ-
ent. A^htonh case, 2 Lewin, C. C.
147 — Alderson.
Whether or not dying declara-
tions were made under an apprehen-
sion of danger, must be determined
by the judge, in order to receive or
reject the evidence ; and not by the
jury after the evidence is received.
Bex V. John, 1 East, P. C. 357 ; S.
P., JKex V. WeUboum, 1 East, P. C.
358 ; Mex v. BuckSy 1 Stark, 523 ; 1
Leach, 503, n.
The apprehension of danger may
appear either from the express dec-
laration of the deceased at the time,
or may be inferred from the state of
the wound, or illness, or other cir-
cumstances indicating the same. lb.
The declarations of a deceased
person are evidence, though at the
time they were made the deceased
thought herself better, where she
had uniformly said, both before and
after they were made, and up to the
time of her death, that she knew
she should die. ^ex v. Tinkler, 1
East, P. C. 354.
Any hope of recovery, however
slight, existing in the mind of a de-
ceased at the time of his making a
declaration, will render it inadmis-
sible as a declaration in articulo
mortis; but where a person knew
that he must die, and the magis-
trate, previously to his making the
declaration, desired him, as a dying
man, to tell the truth, and he re-
plied that he would: — Held, that
his declaration was admissible.
Rex V. Hayward, 6 C. & P. 157 —
Tindal.
A boy between ten and eleven
years of age was mortally wounded,
and died the next diy. On the
evening of the day on which he was
wounded, he was told by a surgeon
that he could not recover. The boy
made no reply, but appeared de-
jected. It appeared from his an-
swers to questions put to him, that
he was aware that he would be
punished hereafter if he said what
was untrue : — Held, that a declara-
tion made by him at this time wm
receivable in evidence on the trial of
a person for killing him, as being a
declaration in articulo mortis. Rtg,
V. Perkins, 9 C. & P. 395.
In order to render a declaration
in articulo mortis admissible in &
case of manslaughter, it is not nec-
essary to prove expressions of the
deceased, that he was in apprehen-
sion of almost immediate death ; hot
the judge will consider, from all the
circumstances, whether the deceased
had or had not any hope of recov-
ery. Bex V. Bonner, 6 C. & P. 38C.
On the question whether a declara-
tion of a deceased person is admissi-'
ble as a declaration in arUculo mor-
tis, the judge will consider whether
the conduct of the deceased was
that of a dying person, such as
whether he gave directions reff)ect-
ing his funeral, his will, 4&c., and
not merely the expressions he used,
as to whether he thought he should
or should not recover. Bex v. Sfih-
bury, 7 C. & P. 187— Coleridge.
It is no objection against a de-
claration in articulo mortis that it
was made in answer to questions pdt
to the deceased by the surgeon, and
not a continuous statement made bf
the deceased. Rex v. Fagent, 7 C.
& P. 238— Gaselee.
The deceased asked, ^' Shall I re-
cover"; the surgeon said, ''Na"
The patient grew better, but re-
lapsed, and then repeated the qnes*
tion. The surgeon said, " I think
you will not recover." The de-
ceased said, " I think so, too." It
was after this conversation, but not
immediately, that the declaration
which was proposed to be given in
evidence was made : — ^Held, admis-
sible. Ashton^s case, 2 Lewin, G. C.
147 — Alderson.
Statements by a deceased person
who at the time thought he was
dying, and had no hope of recover-
ing, are admissible as dyinsc declara-
tions. Beg, V. HoweU, 1 Den. G.C
1 ; 1 C. & K. C89.
It is not sufficient that the person
DECLARATIONS IN ARTICULO MORTIS.
377
making declarations was dying, to
constitute those declarations evi-
dence, unless the deceased was clear-
ly and expressly warned that he
could not live, or unless he had ex-
pressed his knowledge that he was
dving. Meg. v. Mooney^ 5 Cox, C.
C' 318.
Upon a trial for manslaughter, it
was proved that the deceased, then
being in spch a state from the in-
juries he had received that it was
impossible he could recover, and in
feet death ensued eleven days after-
wards, made a declaration, conclud-
ing with these words: — "I have
made this statement, believing I
shall not recover." On the same
day, and shortly before making the
declaration, he had stated : — "I
have .seen the surgeon, and he has
given me some little hope that I
am better; but I do not myself
think I shall ultimately recov-
er." It was also proved, that on
the occasion of this conversation he
had gaid that he could not recover :
—Held, that the statement being
made under a belief of impending
death, was properly received as a
dying declaration. Meg. v. Meaney^
Dears. <fc B. C. C. 151 ; 3 Jur., N.
S. 191 ; 26 L. J., M. C. 43 ; 7 Cox,
a C. 209,
A statement made by a deceased
person, inculpating one who was on
his trial for the murder of the de-
ceased, if made under circumstances
and after expressions which indicat-
ed a sense of impending danger of
death, is admissible as a dying de-
claration. M^g. V. Whitworth^ 1 F.
& F. 382— Watson.
A dying declaration is admissible,
if the declarant conceives himself to
be past recovery, although the sur-
geon attending him may believe
aim to be progressing favourably.
Reg. V. Peel, 2 F. & F. 21— Willes.
A dying declaration of a deceased
cannot be admitted by the judge
merelv from liis own notion of the
nature of the wound as described
(without any evidence that the de-
FisH. Dig.— 28.
ceased,'at the time, believed himself
about to die), unless, at all events,
it is shown to have been such as
must necessarily have caused death
in a short time, and such as all
men reasonably would suppose to
be so. Meg. v. Chary, 2 F. & F.
850— Erie.
To render a statement admissible
as a dying declaration it is not
enough that it slppears that the per-
son making it was under the imi)res-
sion that death must ultimatelv en-
sue, but it is necessary that it should
appear that the person was conscious
at the time that death was actuallv
imminent. Meg. v. Forester, 4 F. &
F. 857— Byles.
It is no objection to the admissi-
bility of a dying declaration that
it was made in answer to leading
questions. Meg. v. Smith, L. & C.
607.
An examination of a man touch-
ing injuries which he had received
from the prisoner, if subsequently,
on the death of the injured man
from the injuries he has received,
appended to a caption charging the
prisoner with his murder, is inadmis-
sible in evidence on that charge, al-
thouorh it may be admissible as a
dying declaration. Meg. v. Clarke,
2 F. & F. 2— Wightman.
In order that a dying declaration
may be admissible agamst a prison-
er, it is not sufficient that the de-
ceased had no hope of recovery,
but he must be aware of the im-
mediate approach of death, so that
no terrestrial considerations may
have any weight with the deceased
in making such statement. Meg. v.
Forester, 10 Cox, C. C. 368 ; 4 F. &
F. 857— Byles.
A magistrate's clerk administered
an oath to a dying person, and she
made a statement. He asked her if
she felt she was likelv to die ? She
said, "I think so." He said, "Why ?"
She replied, " From the shortness of
my breath." He said, *' Is it with
the fear of death befoi*e you that
you make these statements ? " and
878
MURDER, MANSLAUGHTER, ETC.
added ; " Have you any present
hope of your recovery?" She raid,
"None.*' He then proceeded to
write out the deposition, and when
finished read it to her, and asked
her to correct any mistake that he
might lave made. She Faid, " No
hoyje, at present, of my recovery,"
and he then inseited those words :
— Held, that the declamtidn was
inadmisi'ible, as the words " at pres-
ent," introduced by the deceased,
were a qualilication cf her previous
statement that she had no hope cf
recover V. lieg, v. Jenkins^ 20 L. T.,
N. S. 372 ; 17 W. R. 621 ; 38 L. J.,
M. C. 82; 1 L.R. C. C. 187; 11
Cox, C. C. 250.
In order to i-ender a statement of
a deceased person, not on cath, evi-
dence, the prosecution muft shew
that such person at the time ofj
making the statement was distinct- '
ly aware of the approach of death,
and had no hope of possible recov-
ery. Reg, V. Mdckay^ 11 Cox, C. C.
148— Lush.
When not Admissihle.'] — If the de-
ceased thought she should recover
at the time the declarations were
made, they ought not to be receiv-
ed. Hex V. Welboum^ 1 East, P. C.
-358 ; 1 Loach, C. C. 503, n.
In murder, the declarations of the
-deceased, after the mortal wound
i» given, may be received, though
the ] arty did not express any ap-
prehension of approaching dissolu-
tion, but the examination of such a
person taken by a magistrate, ex-
trajudicially, cannot be I'eoeived.
Sex V. Woodcock^ 1 Leach, C. C.
500 ; 1 East, P. C. 354 ; S. P., Hex
V. Dingier^ I Leach, C. C. 504, n. ;
1 East, P. C. 357.
Where the deceased asked his
aurgcon if- the wound was necessa-
rily mortal, and on beinff told that
recovery was just possible, and that
there had been an instance where a
person had recovered atter such a
wound, he said, ^' I am satisfied,"
and after this he made a statement :
— Held, that it was not admissible
as a declaration in articulo mortifi,
as it did not appear that the de>
ceased thought himself at the point
of death, for, being told that the
wound was not neoesFarily mortal,
he might still have a hope of recov-
ery. Sex V. Christie^ Car. C. L 23i
— Abbott and Park.
A person who was told by the
surgeon that she would never re^
cover Faid, that she "hoped he
would do what he could for her,
for the fake of her family," He
again told her that there was no
chance of her recovery: — Held,
that this shewed such a de<n*de of
hope in her mind, as to render a
statement she then made inadmisei-
ble as a declaration in articulo mor-
tis. Hex V. OrockeU, 4 C. <fc P. 544
— Bofanquet.
In trials for robbery, the dying
declarations of the party robbed
have been held to be inadmissible.
Hex V. Llogd, 4 C. <fe P. '.^33.
Declarations in articulo mortii
are not admissible on an indictment
for administering medicine to pror
cure abortion. Hex v. Butehinson,
•2 B. «fc C. 608, n.
Nor on an indictment for perjury.
Hex V. Mead, 4 D. & K 120; 2 R
& C. 605.
Upon an indictment for felon-
iously using certain instruments up-
on the ])erson of a woman, who
afterwards died, with intent to pro-
cure a miscarriage, the dying de-
clamtion of the woman is ina4inis-
sible. Heg. v. JUnd^ Bell, C. C
253 ; 8 Cox, C. C. 3(K> ; 2 L. T., N.
S. 253 ; 6 Jur., N. S. 514 ; 29 L J^
M. C. 147 ; 8 W. R. 421.
The declaration of a convict st
the moment of execution oooid
not be given in evidence as the dec-
laration of a dying man, for, be-
ing attainted, his testimony could
not have been received on oath.
Hex V. Drummondy 1 Leach, C. G.
387 ; 1 East, P. C. 353, n. But see
6 <fc 7 Vict. c. 85.
A declaration in articulo mortifi}
DECLARATIONS IN ARTICULO MORTIS.
379
made by a child only four years
old, is not admissible on tlie trial of
an indictment for the murder of
sach chiki ; because a child of such
tender years cannot have that idea
of a future state which is necesFary
to make such a declaration admis-
sible. Rex V. Pike, 3 C. & P. 598
—Park. See Begr* v. Perkins, 9 C.
<fc p. 395— Coltman and Rolfe.
If a person whose death is the
subject of a charge of manslaugh-
ter expresses an opmion that she will
not recover, and makes a declara-
tion^ and at a subsequent part of
the fame day asks a person whether
he thinks the will *' rise again " : —
Held, that this shewed such a hope
of recovery as rendered the previous
declaration inadmissible. Hex v.
Fagent. 7 C. & P. 2a8--Gaselee,
Tlie deceased said, " I think my-
self in grc»at danger : " — Held, that
these wonls did not, necesf arily, ex-
clnde all liope, and therefore that
they were not admissible as a dying
declaration. JEhrvf^gtaii's case, 2
Lewin, C. C. 14.S— Patteson,
In a case of murder, it appeared
that two day« before the death of
the deceased the Burgeon told her
that she was in a very precarious
state, aud that en the day before
her death, when she had become
much woi*se, she raid to the sur-
geon that she found herself grow-
ing woree, and that she had been in
hopes she would have got better,
bot as she was getting worse, she
thought it her duty to mention
what had taken place. Immediate-
ly after this she made a statement :
^Held, that this statement was not
receivable in evidence as a declara-
tion in articulo mortis, as it did not
sufficiently a[)pear that at the time
of the making of it the deceased
was without hope of recovery. Reg,
V. Megsmi, 9 C, & P. 418— Rolfe.
Where the deceased, having faid
that he thought he should die, made
a Matement, and two or three days
afterwards expressed his belief that
he should recover and he lived some
days after that ; — Held, that the
statement was inadmissible. Reg.
V. Taylor, 3 Cox, C. C. 84— Patte-
son.
On a trial for murder, it was
proved that the deceased, who liv-
ed a few hours after the wound
was inflicted, made a statement, at
the conclusion of which he exclaim-
ed, "Oh, God ! I am going fast ; I
am too far gone to Fay any more '* ;
but he did not appear to have pre-
viously said anything about his con-
dition, and there was no evidence,
one way or the other, to shew that
he was aw^are of it : — Held, that the
statement was inadmissible as a dy-
ing declaration. licq. v. Nicolas, 6
Cox, C. O. 120— Creswell.
In order to render dvintj declar-
ations admissible in evidence, the
facts to shew that the dcc:ased was
conscious of his state must point to
the time of the statement, and tliere-
fore declarations some days prior to
an expression that the deceased
" had given up all in this world,"
are inadmissible. Reg, v. Quaker y
6 Cox, C. C. 357 — Wightman.
Where the deceased eaid he was
"a murdered man, and it would
have been better if they had killed
him on the sjx)t than left him to
linger, and tliat he thought he
should never get over it," but he
lived several weeks afterward?^ : —
Held, that there was a primfi facie
case for the admissibility cf declar-
ations made at the time of those
statements. But where the jierson
to whom the declarations were made
stated that he believed the words
"murdered man " were not used in
their literal scn?"c, and that the de-
ceased did not ai)pear to have any
immediate fear of death (m his
mind : — Held, that the cas-e was
taken out of the principle on which
such declarations are receivable. Ih,
In Favor of the Accused,'] — Dy-
ing declarations may bo given in
380
MURDER, MANSLAUGHTER, ETC.
evidence in favor of the accused.
JRex V. Scaife^ 1 M. i& Rob. 551 ;
2 Lewin, C. C. 1 50— Coleridge.
Form of Taking.'] — A deposition
made before a magistrate by a dy-
ing man, as to the cause of his death,
need not, on the face of it, shew that
it was made under circumstances
which would render it admissible in
evidence as a dying declaration; but
that is a fact dehors the statement,
and may be proved by parol testi-
mony. jReff. V. Bunt, 2 Cox, C. C.
239.
If a declaration in articulo mor-
tis is taken down in writing, and
signed by the party making it, the
judge will neither receive a copy of
the paper in evidence, nor will he
receive parol evidence of the declar-
ation. Bex V. Gat/, 7 C. & P. 230
— Coleridge.
Parol evidence of dying declara-
tions which have been reduced into
writing cannot be received. Hex v.
Trowter, 1 East, P. C. 356.
12. Evidence and Witnesses.
On an indictment for the murder
of a constable in the execution of
his office, it is not necessary to pro-
duce his appointment : it is sufficient
if it is proved that he was known to
act as a constable. Mex v. Gordon^
1 Leach, C. C. 515; 1 East, P. C.
312.
On a trial for murder, every person
who was present at the time of the
transaction which gives rise to the
charge, ought to be called as a wit-
ness on the part of the prosecution ;
for, even if they give diiferent ac-
counts, the jury should hear the ev-
idence, and draw their own conclu-
sion as to the truth. Meg, v. Jlolden,
8 C. & P. 606— Pattcson.
On the trial of an indictment for
murder, the death of the person
charged to have been killed may be
collected from the circumstances, if
incapable of being proved by other
evidence. Hex v. Hindmarsh, 2
Leach, C. C. 569.
As where the deceased was thrown
overboard into the sea, and never
heard of afterwards. lb.
Although it is necessary, in a
case of murder, that there should
be evidence that the body found is
the body of the murdered penon,
the circumstances may be sutficient
evidence of identity. Beg. v. Cheo-
erton, 2 F. & F. 833 -Erie.
Where a charge of murder de-
pends upon circumstantial evidence,
it ought not only to be consistent
with the prisoner's guilt, but iucon-
sistent with any other rational con-
clusion. Hodgf^s case, 2 Lewin, C.
C. 227— Alderson.
On a charge of murder, the de-
ceased having been Ibund tied hand
and foot, and with something forced
into the throat, apparently to pre-
vent any outcry, but which had
caused suffocation, and the state of
the premises shewing that a burglary
had been committed ; and the evi-
dence against the prisoner being a
chain of circumstances tending to
identify him as one of two per
sons employed in the burglary, the
jury was directed, that, if satisfied
that the prisoner was engaged in
the burglary, and a party to the
violence on the person of the de-
ceased, they should find him guil^^
of the murder. Beg. v. Franz,^ F.
& F. 580— Blackburn.
A. was indicted for the murder
of H. It was opened, that A, hav-
ing malice against P., had hired E
to murder him, and that H. did so;
but that H. being detected, A bad
murdered H. to prevent a discovery
of his (A.'s) guilt respecting the
murder of P. Evidence was given
of expressions of malice used by A
towards P.:— Held, that the prose,
cutor might also give evidence to
shew that H. was in fact the jiersoo
by whom P. had been murdered.
Bex V. Clewes, 4 C. & P. 221-
Littledale.
Although, where it is clearly ]>«)V-
ed that the prisoner wilfully gave
the fat^l blow, it is not necessary to
EVIDENCE AND WITNESSES.
381
shew motive or personal malice, or
a particular intent to kill tlie de-
ceased ; and if he killed A., mean-
ing to kill B., it is clearly murder ;
yet, where it is a main part of the
proof that he killed the deceased,
that he meant to kilf some one else,
it is es^ntial to prove that he had
an intent to kill such other person,
and that such person was or might
be supposed to be at or near the
spot, at or about the time of the
&tal blow. lieg. v. CUary, 2 F. &
F. 850— Erie.
On an indictment for manslaugh-
ter, where the death is occasioned by
the application of a lotion to the
fikin, evidence may be given of the
effect of the lotion when applied to
other patients. Rex v. St, John
Lmg, 4 C. & P. 398— Park and
Garrow.
An allegation in an indictment,
charging that the death of a person
was caused by a plaister made and
applied by the prisoner, is suiiicient-
ly proved by shewing that three
plaisters were applied, and that two
of them were applied by the prison-
er, and the third made from mater-
ials furnished by the prisoner. Rex
V. SpUler, 5 C. & P. 333— BoUand
and BoFanquet.
An uidictment charged that the
death of the deceased was caused
by a mortal wound of the head, in-
flicted with a swingle. It was
proved that the deatn was caused
by a blow on the head by a piece of
wood, and that the external skin
was not broken, but that there was
extravasation of blood, pressing on
the brain, and a collection of blood
between the scalp and the brain.
The surgeon stated this to be a con-
tused wound, with effusion of blood :
—Held, that the evidence supported
the indictment. Reg. v. Warman^
2 C, & K. 195 ; 1 Den. C. C. 183.
An indictment charged, that the
deceased was on horseback, and that
the prisoner struck him with a stick,
and that the deceased, from a well-
grounded apprehension of a further
attack, which would have endan-
gered his life, spurred his horse,
which became frightened, and threw
him, giving him a mortal fi-acture.
The evidence was, that the prisoner
struck the deceased with a small
stick, and that the latter rode away,
and the former rode after him;
whereupon the deceased spurred his
horse, which then winced and threw
him, whereby he was killed : — Held,
that this evidence suflSciently sup-
ported the indictment. Rex v.
Hickman^ 5 C. & P. 151 — Park.
In a case of manslaughter, it was
proved that the deceased was at an
inn for three days, and that the inn-
keeper asked him what his name
was, and that while there letters
arrived at the inn directed in that
name, which letters were delivered
to the deceased, and received by
him: — Held, that the innkeeper
might be asked what name the de-
ceased gave. Rex v. Tifnmins, 7
C. & P. 499— Patteson.
A. was charged with mansla^igh-
ter, in killing B., by diiving a cab-
riolet over him. C. saw the cabrio-
let drive fey, but did not see the
accident. Immediately afterwards,
on hearing B. groan, C. went up to
him, when B. made a statement as
to how the accident had happened :
— Held, that this statement, being
made at the moment of the accident
occurring, was receivable on the
trial of A. for the manslaue:hter of
B. Rex V. JFoster, 6 C. & P. 325—
Park, Patteson, and Gumey.
Statements made by the deceased
to the first person who comes up
after he has been wounded, are ad-
missible as part of the res gestae.
The deceased died from the eifects
of a wound on his head, inflicted by
a stick. A girl in the neighbour-
hood heard a cry, and commg out
found the deceased standing with
his cap in his hand, and apparently
weak and injured. The deceased
did not survive more than a few
houra : — Held, the statement made
by the deceased to the witness im-
382
MURDER, MANSLAUGHTER, ETC.
mediately on her coming up, com-
plaining of the injuiy, was admifi-
«ible in evidence, being part of the
res geptap. Beq, v. Ivnny^ C Cox,
C. C. 477— Ir. C. C. U.
The evidence against a prisoner
charge<l with manslaughter was an
admission on liis part, that, unfor-
tunatelv, he was the man who shot
the decea'^ed ; and tlie fact that, on
their coming together, apparently
not in ill-humour, from tlie Soutli
Metropolitan Cemetery, where the
pi-isoner was a watchman, but with
which the deceased had no connex-
ion, the prisoner said to the deceas-
ed, " Now, you mind, don't let me
see you on my premises any morc."
At the time this was said, the wound
had bsen given of which the deceas-
ed eventually died : — Held, that, in
point of law, the evidence was suf-
licient to sustain the charge. Rex
V. Morrison, 8 C. & P. 22— Park.
13. Trial, Judgment and Execution
in Mvrder,
4 & o WUL 4, c. 26, 9, l.]—^i5/
2 cfe 3 WiU, 4, c. 75, s. 16, 25 Geo.
8, c. 37, tons repealed, so far as re-
lated to this subject.
By 24 & 25 Vict. c. 100, p. 2,
" upon every C(mviction for murder
" the court si: all pronounce sentence
" of death, and the fame may
" 1)3 carried into execution, and
" all other proceedings upon such
" sentence and in respect thereof
" may b3 liad and taken, in the
" Fame manner in all resj)ects as
" sentence of death might have been
" pr» nounced and, carried into exe-
" cution^ and all other proceedings
" thervni|»on and in res])ect thereoi'
" might l.ave baen had and taken,
" before the passing of this act,
" upon a conviction for any other
" fc'lony f*,r which the ])ris(mer
*' might have b3en sentenced to
" sutler daath a^ a felon."
By s. 3, ** the body of every per-
" son executed for murder shall be
*' buried within the pracincts of the
'^ prison in which he shall have been
" last confined after conviction, and
'' the sentence of the couil ^U ao
" direct,"
25 A 26 Vict c. 65, " providB
'^ for the speedier trial of olfenden,
" subject to martial law, commitiog
" murder or manslaughter on parties
'' also subject to martial law."
By 31 & 32 Vict. c. 24, '' capital
" punishment for murder is to be
" carried out within the prison
" walls."
Where two persons charged with
murder by the same indictment hsd
made statements im])licating one
another, and those statements were
evidence for the prosecution, the
court, upon the application of the
counsel appearing for one prisoner,
allowed them to have separate triak
lieg. V. Jackson, 7 Cjx, C. C. 857
— Martin.
A man upon whom sentence of
death has passed ought not, while
under that sentence, to be brought
up to receive judgment fvT another
felony, although he was under that J
sentence when he was tried fur the
other felony, and did not plead his
prior attainder. Hex v. Brady, R.
& R. C. C. 268.
The time and place of the exec«.
tion of a convicted felon fonn bo
part of the sentence. Rex v. Doyk,
1 Leach, C. C. 67.
A judge might, if he Faw fit, have
ordered a person convicted of mur-
der to be executed immediately, (x
at any time within 48 hours after
the conviction, as lie might have
done in any other capital felon?.
Rex V. Wyatt, R. & H. C. C. 2:J0.
It was not essential to award the
day of execution in tlie sentence,
the 25 Geo. 2, c. 37, baing in that
respect only directory ; and if a
wrong day mtls awarded, it wouU
not vitiate the sentence, if the mis-
take was difcovered and set right
during: the assizes. lb.
The bodies of executed muriaren
were by the common law at the
king's disposal, and therofura the
court could not direct them to he
TRIAL, JUDGMENT, AND EXECUTION.
38a
hang in chains. Hex v. JETcUl, 1
Leach, C.C. 21.
Where a woman who had been
condemned to death did not, when
called upon to ^slj why execution
fihoald not be done upon her, plead
her pregnancy, the court would not
permit that question to be formally
mqaired into, at the suggestion of
hercounKcl that she was in fact preg-
nant. Heg. V. J5rtm^,~2 Cox, C. C.
261.
Sentence of death might under 6
k 7 Will. 4, c. 30, be recorded
against a person convicted of mur-
der. 7iV/. V. Hogg, 2 M. & Rob.
881— Denman.
Qosere, whether on passing sen-
tence of death on a conviction for
murder, the award of dissection and
anatolnizhig, in pursuance of 25 Geo.
3, c. 37, was an essential part of the
sentence to be pronounced by the
jndge ? Rez v. Fletcher, R. & R.
C. C. 58.
The omission of it might be rem-
edied by the judge going again
into court after adjournment, from
his lodgings, and ordering the pris-
oner to be again brought up, and
then passing the proper judgment,
as the sentence might be corrected
or altered at any time during the
a»izes. lb.
On a conviction for murder, in
which the prisoners were brought
up by habeas corpus, and the record
by certiorari, the court gave the
prisoners thi-ee days' time to exam-
me the record aud instruct coun-
sel to shew cause why execution
should not be awarded against them.
Sex v. Garside, 4 N. ifc M. 33 ; 2
A. <k E. 2G6.
Semble, that a pardon after judg-
ment may be pleaded ore tenus, and
in bar of execution ; and there may
be a demurrer to such a plea ore
tenus. lb.
The court of King's Bench lias
authority to order the sheriff of any
county, or the marshal of the court,
to carry into execution a sentence of
death, pronounced by a judge under.
a commission of over and terminer
and general gaol delivery. lb,
A proclamation promising a par-
don cannot be {)leadcd as a |)ai*don.
lb.
But where such proclamation had
been made, the court, in their dis-
cretion, deferred the awaixling of
execution upon the 8entence, until
the prisoner should have had time
to apply to the secretary of state
for a pardon, according to the terms
of the proclamation. lb.
The attorney-general is entitled,
as of course, to a habeas corpus aud
certiorari, to bring up a prisoner
aud the record of his conviction in
case of felony. Jb,
A sheriff is not bound, upon serv-
ice of a copy of the calendar of pris-
oners signed by a justice of gaol
delivery at the assizes, to execute
prisoners against whom sentence of
death lias been passed, unless such
prisonere are in his legal custody.
Jiex V. Antrobus, 4 N. «fe M. 5G5 ; 2
A. & E. 798 ; 1 11. <fc W. 90 ; G C.
& P. 784.
Where the sheriff has the custody
of a prisoner, the judgment of the
court passing sentence of death up-
on him is, Avithout any warrant or
copy of the calendar, sufficient to
authorize and require the sheriff to
do execution ; the copy of the calen-
dar signed by the judge is a mere
memorial. lb,
14. Punishment for Manslaughter,
By 24 & 25 Vict. c. 100, s. 5,
" whosoever shall be convicted of
" manslaughter shall be liable, at
" the discretion of the court, to be
" kept in penal servitude for life, or
" for any term not less than tliree
" years (now by 27 & 28 Vict. c.
" 47, not less than five years), or to
" be imprisoned for any term not
" exceeding two years, with or with-
" out hard labour, or to pay such
" fine as the court shall award, in
" addition to or without any such
'' other discretionary punishment as
'*• aforesaid."
384
NIGHT POACHING.
XXIV. Night Poaching and
Offences relating to Game,
IIabes and Rabbits.
1. The 0/^«ice, 384.
2. Limitation of Time fir Prosecu-
tion, 389.
3. Indictment, 391
4. Evidence^ 392.
5. Convictions and Commitments, 393.
6. Hares or RMits, 393.
1. The Offence,
/^to^?/^6«.]— 9 Geo. 4, c. 69, 7 cfc 8
Tidt. c. 39, and 25 <fc 26 ViH, c,
114. The 9 6?eo. 4, c. 69, repealed
bl Geo. 3, G. 90.
The 9 Geo. 4, c. 69, s. 9, creates
two distinct offences. First, the en-
tering in the night on land to the
number of three, some one of them
bein^ armed ; and second, the being
in the night on land to the number
of three, some one of them being
armed. Rex v. ITendrick, 7 C. &
p. 184— Coleridge.
In a case of night poaching by
three or more armed, if one has a
gun, all are armed within 9 Geo. 4,
c. 69, s. 9. Heg. v. Goodfellow, 1
C. & K. 724 ; 1 Den. C. C. 81 ; S.
P., Beg. V. Andrews, 1 Cox, C. C.
144 ; Beg. v. May, 5 Cox, C. C.
176— Patteson.
Mitry.] — If nets are hung on the
twigs of a hedge within the close, it
is an entry, though the parties are
in a lane outside tlie hedge. Aihea'a
case, 2 Lewin, C. C. 191 — Alderson.
See Pickering v. Rudd, 1 Stark. 56 ;
4 Camp. 219.
If three persons go out together
night poaching, one being armed,
and two of them stand in a road,
and set nets in the hedge of a field
of A., and send their dog into the
field to drive hares into the net, and
after this the third leaves them in
the road and goes to poach by him-
self in another field of A. ; this will
not support an indictment for night-
poaching on land of A. ; for the
sendin^r in of a dog is not an enter-
ing of land within 9 Geo. 4, c. 69, s.
9 ; and the entering of the second
field was not a joint act of the three.
Reg. V. Nickless, 8 C. & P. 757—
Patteson.
Six were indicted under 9 Geo. 4,
c. 69, s. 9, for having been in a field
at night, armed for the purpose of
taking game. Three of the six had
been in the field, and three had re-
mained outside of it, aiding and as-
sistmff the others : — Held, that the
actual entry of some of the party,
armed, was sufiicient to support the
conviction of all, though it could
not be proved which of them bad
actually entered the-^eld. Reg. v.
WhiUaker, 1 Den. C. C. 310; 3
Cox, C. C. 50.
In order to bring a case of night-
poaching within 9 Geo. 4, c. 69, s.
9, it is not necessary to prove that
three persons were all within the
same close or inclosure, on the same
piece of open land, if all were of
one part^, or being armed, with the
same common purpose, in the place
described in the indictment. Beg.
V. UeezeU, 2 Den. C. C. 274 ; T. &
M. 598.
A count stated that the prisoners
were in a field called A., for the
purpose of then and there taking
game : — Held, that they could not
be convicted on that count, unless
the jury was satisfied that the pris-
oners had an intention of taking
game in that particular field. Bex
V. CapeioeU, 5 C. & P. 549— PaAa
A defendant was convicted under
1 & 2 Will. 4, c. 32, 8. 30, of tres-
passing on land in the possession
and occupation of B. in pursuit of
game : — Held, that the entry upon
the land under that section must be
a personal entry, but it having been
proved that the defendant was on
the highway in pursuit of game,
and not as a traveller, and that R
was the owner of the land on both
sides of the highway : — Held also,
that, as the soil and freehold of Uie
highway were in B. as owner of the
adjoining land, there was a personal
entry on the land by the defendant
Beg. V. Pratt, Dears. C. C. 502; »
THE OFFENCE.
885
C. L R. 686 ; 1 Jur., N. S. 681 ;
' 24LJ.,M. C. 113;. 4 El. & Bl.
860.
On an indictment on 57 Geo. 3,
c. 90, he having entered a given
cloKe with intent there to kill game,
and being there found armed, it
was necessary to prove an entry
with that intent into the close speci-
fied- Mex V. Barham^ 1 M. C. C.
R151.
On an indictment mider 57 Geo.
3, c 90, a man might have been
convicted of having entered a wood,
and of being found armed there,
though he was not seen in such
wood. It was sufficient if thei*e
vas evidence to shew that he had
been there armed. Rex v. Worker^
1 M. C. C. R. 165. In this case
the prisoner was not seen in the
wood, but a gamekeeper saw Hashes
in the wood and heard reports of
gans, and saw the prisoner after-
wards in the close adjoining the
wood.
Two were charged with being
by night, and armed, in a close
for the purpose therein of de-
stroying game. It was proved
that they passed through the close
without doing anything in it, and
that after being lost sight of for
two hours, they were found three
inilee off witli game in their posses-
sion:— ^Held, that there was evi-
dence that they were in the partic-
ular close for the purpose of taking
game, and that if persons went out
with a general intention of taking
game, that was sufficient evidence
of an intent to take ^ame in every
field through which tney passed, in
which game might be expected to
be found. lieg, v. Miggs^ 10 Cox,
C. C. 527— Willes.
hformationA — In an indictment,
perjuiy was alleged to have been
oomnutted on the hearing of a com-
plaint for entering land for the pur-
pose of taking game, contrary to 9
Geo. 4, c. 69 :— Held, that it need
not appear on the &ce of the in-
FwH. Dig.— 29.
formation or complaint in writing
that the offence was " entering land
for the purpose of taking game
there," in order to prove the jus-
tice's jurisdiction beiore whom per-
jury is alleged to have been com-
mitted. Reg, V. Wtstem^ 11 Cox,
C. C. 93; 1 L R.,C. C. 122 ; 18 L.
T., N. S. 299 ; 16 W. R. 730.
•.An information under 9 Geo. 4,
c. 69, s. 1, for entering land for the
purpose of taking game, is sufficient
to give the justices before whom it is
laid jurisdiction to hear the charge,
although it does not allege that the
entry was for the purpose of taking
game there. Reg, v. We«tem^ 1 L.
R., C. C. 122 ; 18 L. T., K S. 299;
16 W. R. 730 ; 37 L. J., M. C. 81.
In Concert and Co-operation,'] —
To support an indictment for night
poachmg by three or more being
armed, it is not sufficient to prove
that one of the prisoners was in the
place laid in the indictment, and
that the rest of the party was in
another wood which was separated
from the place mentioned in the in-
dictment by a turnpike road. Rex
V. Dawsell, 6 C. & P. 398— Patte-
son.
To sustain an indictment for
night poaching, the parties must
have been in the place charged in
the indictment, with intent to de-
stroy game there, and it is incum-
bent on the prosecutor to convince
the jury that the defendants had
an intent to destroy game in the
particular place mentioned in the
indictment. Rex v. Grai7ier, 7 C.
& P. 231— Coleridge.
If one of a party of poachers is
found in the land specified, the rest
co-operating in the pursuit in ad-
joining land, all may be alleged to
be found in the land specified. Rex
V. AndreioSj 2 M. i& Rob. 37 — Gur-
ney ; S. P., Rex v. Lockett^ 7 C. &
P. 300— -Alderson.
Those who are watching at the
outside of a preserve, for the pur-
pose of giving the alarm, on the
886
NIGHT POACHING.
approach of the gamdceeper, to
others who are in the preserve, and
who afterwards go into the preserve
for that purpose, are equally guilty
with those who enter the preserve at
first. Hex V. Pctssey, 7 C. & P.
282— Alderson.
Two of the prisoners were seen
together running out of a coppice,
one of them with a gun. The
third immediately afterwards came
out of it alone with a gun and a
Sheasant: — Held, insufiicient evi-
ence of concert. Heg, v. Jones,
2 Cox, C. C. 186— Maule.
It is not essential that all the
prisoners charged should actually
enter the inclosed places; but, if
they are associated together for the
common purpose of taking game
contrary to the statute, and some
of the party actually enter such
place to effect that purpose, while
the others remain near enough to
tud and assist, they may all be con-
victed under an indictment charg.
ing them with being in such place
for such purpose. Heg. v. 'WhiU
taker, 2 C. & K. 686 ; 17 L. J., M.
C. 127 ; 1 Den. C. C. 810 ; 8 Cox,
C. C. 50.
It is not necessary to constitute
the offence of three or more per-
sons armed entering land in the
night to take game, that all the
three persons should be in one close,
or that the land should be in the
occupation of one person. JReg, v.
Uezzell, 8 C. A K. 150 ; 2 Den. C.
C. 274 ; 5 Cox, C. C. 188 ; 15 Jur.
484;.20L. J.,]VLC. 192.
One of the prisoners may be in
Whiteacre, another in Blackacre,
and another in Greenacre, and the
land may be in the occupation of
different persons. The offence is
complete if three persons are in one
common party unlawfully upon anv
land, whether open or inoloeed land,
for tlie common purpose of ill^ally
destroying game ; and it is sufficient
to describe the close of land as in-
closed or open land, in the occupa-
tion of a certain person or of cer-
tain persons. »Zd.
Decisions under Repealed Enad-
ment.] — It was no answer to a
charge on 57 Geo. 8, c. 90, for be-
ing round armed in the night in a
wood, with intent to kill game, that
the prisoners put down didr arms
and left them oefore they were seen,
if it was perceived that some ooe
was there armed before they were
seen. Hex v. Nashj R. & R. C. C.
886.
On an indictment on 57 Geo. 3,
c. 90, for being out armed, with in-
tent to kill game, it a][^)eaTed that
several persons were out with such
intent, but only one of them wa«
armed with a gun : — Held, that the
rest, who were unarmed, were lia-
ble to be convicted under that act
Bex V. Smithy R. & R. C. C. 868.
For if any one of the party wu
armed, it was sufficient to bring the
whole party within the statute. lb.
On an indictment on 57 Geo. S,
c 90, against a person for being
found armed in the night, with in-
tent to kill game : — Held, that i
sevei^l went into a dose in the
night to kill game, and one had
arms without the knowledge of the
others, the other persons who were
unarmed were not liable to he con-
victed. Eex V. fSouAemj R. A R.
C. C. 444.
Weapons.}— IAT^^ stones are of-
fensive weapons, within 9 Geo. 4,
c. 69, s. 9, if the jury is satisied
that the stones are of a descripCka
capable of infficting serious injoiy
if used offensively, and were Ivooght
and used for that purpose. JSezT.
Grice, 7 C. <fc P. 808 — Ludlow,
Serit., Parke and Bolland«
The mere use of a small stick, as j
a weapon, by a poacher, in a saA-
den affiray with gamdceepers, is not
enough to prove such stick an c^
fensive weapon, under 9 Gea 4, c
69, 8. 9. The jury must be coo- i
THE OFFENCE.
387
vmoed that the party took it with
him for the purpose of offence.
Bex V. i^, 2 M. & Rob. 42—
Gnmey. '
A party oat at night, in pursait
of game, carried a thick stick large
enoQgfa to be called a bludgeon,
bat which he used at other times
as a crutch, he being lame : — ^Held,
Aat it was a question for the jury
whether the prisoner had taken out
this stick to use as an offensive
weapon, or merely for the purpose
to which he usually applied it ; and
that, although it was a weapon
within the statute, and might be
used offensively, yet that, unless
the defendant took it out with an
mtention of so using it, the indict-
ment could not be sustained. Hex
V. Palmer, 1 M. & Rob. 70— Taun-
ton.
An indictment alleged that the
defendant and others were armed
with bludgeons and other offensive
weapons, and the evidence was that
tbey had sticks: — Held, that a
stick was not necessarily an offen-
nve weapon, in the absence of evi-
dence of its size, <&c., even although
it had been used offensively. Heg,
v. Merry, 2 Cox, C. C. 240— Maule.
What Game.] — A person cannot
be convicted under 9 Geo. 4, c. 69,
8. 9, for entering land by night,
araied for the purpose of taking
game, whose object is to steal
young pheasants which had been
hatched by a hen, and which had
not yet become wild. Heg. v.
Oamham, 2 F. & F. 347 ; 8 Cox,
C. C. 451— Pollock.
a
Appreken$i<m of Offenders,] —
When gamekeepers find poachers
in a wood, they need not give any
intimation by words that they in-
tend to apprehend — the circum-
fltances are sufficient notice ; and if
a person out poaching sees a man
ronni]^ after him, he may fairly
{nresmne that the person means to
apprehend him. Rex v. Davis, 7
C. <fc P. 785— Parke.
The 14 & 15 Vict. c. 19, s. 11,
which gives any person a right to
apprehend persons committing in-
dictable offences in the night, ap-
plies to persons night poaching
within 9 Geo. 4, c. 69, s, 9, al-
though the night is defined to be-
gin and end at different times in
the two statutes. Reg, v. Sander-
«o?*, 1 F. & F. 698— Willes.
Prisoners indicted for night poach-
ing, and for assaulting a gamekeeper
with intent, evidence of the com-
mon intent to poach does not sus-
tain the allegation of a common
intent to woimd. Reg. v. Dodd.
ridge, 8 Cox, C. C. 335— Martin
and Channell.
The prisoners were seen upon the
land of the prosecutor at night in
pursuit of game. They escaped in-
to a highway and there assaulted
the keepers. But the keepers stated
that they had not followed them
into the highway with an intention
to arrest them there : — Held, that
there being no intention on the part
of the keepers to arrest them at the
time when the attack was made
upon them, it was not an assault
within 9 Greo. 4, c. 69. lb.
Gamekeepers, who were out
watching in the night, heard firing
of guns in the preserves of their
employer, and they waited in a
turnpike road, expecting the poach-
ers to come there, which they did,
and an afiray ensued between the
gimekeepers and the poachers : —
eld, that, if the gamekeepers
were then endeavouring to appre-
hend the poachers, they were not
justified in so doing. Reg. v. Mead-
ham, 2 C. & K. 633— Wightman.
A policeman has no power under
25 & 26 Vict. c. 114, to apprehend
persons whom he may suspect of
coming from land where they have
been imlawfully in pursuit of same,
and such persons may lawfufiy re-
sist and use such violence as is nee-
388
NIGHT POACHmG.
essary to prevent their apprehen-
sion. Reg, V, Spencer^ 3 F. & F.
854— Martin. *
Where, under such circumstan-
ces, several persons resist with in-
tent only to prevent their appre-
hension, and one of them is guilty
of excess, the others are not respon-
sible for the act of their companion
exceeding the common intent. Ih.
A policeman can only justify
stopping and searching a cart upon
a highway under 25 & 26 Vict. c.
114, where he has good cause to
suspect that the cart is carrying
game which has been unlawfully
obtained ; and upon an indictment
for assaulting the policeman in the
execution of his duty under such
circumstances, it is necessary to
prove the existence of reasonable
grounds of suspicion ; where no
reasonable grounds of suspicion can
be shewn, persons are justified in
resistuig the search. Reg, v. Spen-
cer, 3 F. & F. 857— Martin.
A gamekeeper, or other person
lawfully authorized under 9 Geo. 4,
c. 69, s. 2, may apprehend persons
found offending under that act,
without calling on them to surren-
der, if the circumstances are such
as to constitute notice of his pur-
pose. Rex V. Payne, 1 M. C. C.
878,
A person who is employed by a
lord of a manor, as a watcher of
his game preserves, is a person hav-
ing authoritv to apprehend night
poachers, and he neei not have any
authority from the lord of the ma-
nor. Rex V. Price, 7 C. & P. 178
—Park.
Where a person is found night
poaching on the manor of A. by
one of his watchers, and was pur-
sued oif the manor, and then on to
it again, and there snapped his gun
at the watcher, he was guilty of a
capital olfence under 9 Geo. 4, c.
31, ss. 11, 12. lb.
The servant of the owner of a
wood attempted to apprehend a
poacher whom he found Uiere at
eight o'clock on the morning of the
17th December, and the poacher
shot at him : —Held, that this was
not a capital offence within 9 Geo.
4, c. 31, ss. 11, 12, as there was no
proof that the poacher was in pur-
suit of the game an hour bdore
sunrise. Rex v. Tamlimwi, 7 C. &
P. 183— Coleridge.
The gamekeeper of a penson who
has merely the right of shootiiig
over land is not justified in appre-
hending a person imlawfully being
upon such land by night, for the
purpose of taking game. Reg.\ v.
Price, 5 Cox, C. C. 277— Patteson
and Talfourd.
A gamekeeper appointed by a
person having only a penuisaon to
shoot, tr3n[ng to take a gun from a
poacher, and in the scuffle causing
a loaded gun to go off, which killed
the poacher, is guilty of manslaugh-
ter. Reg. V. Wealet/, 1 F. & F.
528— Campbell.
A person having only a right of
shooting over land has no right to
empower keepers to apprehend par-
ties trespassing in search of game;
and on their resisting with no great-
er violence than is used by the
keepers, they will not be liable for
an assault ; but if the tre^)ass is in
the night, they may be incUcted for
night _poaching. Jkeg. v. Wood, I
F. & F. 470— Martin.
To justify the apprehension of an
offender, under 1 & 2 Will. 4, c.
32, 6. 31, it is only necessary that
he should have been made to un-
derstand, by the person authorized
under that section, that he is re-
quired to tell his christian name,
surname and place of abode, and
that he should have refused to com-
ply with such requisition. It is not
necessary that he sliould have been
required both to quit the land and
also to tell his name. *Reg. v. Pred-
ney, 3 Cox, C. C. 505— Parke.
LDIITATION OF TIME.
389
2. Limitation of Time for Prose-
cution,
B. and G. were convicted of night
poaching. The indictment was up-
on 9 Geo. 4, c. 69 ; by 8. 4 of which
it is enacted, that the prosecution
for every offence " punishable by
indictment by virtue of that act
shall be commenced within twelve
calendar months after the commis-
sion of the offence." The offence
was committed on the 4th of De-
cember, 1845. The information be-
fore the justices, and warrant, were
on the 19th of December, 1845.
B. was apprehended and commit-
ted on the 5th of September, 1846,
and G. on the 2l8t of October,
1846. The indictment was pre-
ferred on the 5th of April, 1847 : —
Held, that the prosecution was com-
menced in time, and the conviction
right. jReg. v. Brooks^ 1 Den. C.
C. 217 ; 2 C. & K. 402 ; 2 Cox, C.
C.436.
Where it appeared that the offence
was committed on the 12th of Jan-
nary, 1844, and the indictment was
preferred on the Ist of March, 1845,
and the warrant of commitment by
which the defendant was committed
to take his trial was given in evi-
dence, and it was dated on the 11th
December, 1844 : — Held, that it
was sufficiently shewn that the
prosecution was commenced within
twelve calendar months after the
commission of the offence, within s.
4. Reg. v. Austin^ 1 C. 4& E. 621
—Pollock.
In case of night poaching by per-
sons armed, the offence w^as com-
mitted on the 4th December, 1845.
On tlie 19th December, 1845, in-
formation of the offence was made
before a magistrate, who on that
day granted warrants to apprehend
A. and B., two of the offenders.
On one of these warrants A. was
apprehended, and committed for
trial on the 16th September, 1846 ;
B. being apprehended on the other
warrant, and committed for trial on
the 2l8t October, 1846. The in-
dictment was preferred and found
on the 5th A^ml, 18^ :— Held, that
the prosecution was commenced
within twelve calendar months after
the conmiission of the offence, and
that it was commenced by the in-
formation and warrants to appre-
hend, or at all events by the appre-
hension of the prisoners. JReg, v.
Gibson, 2 C. & K. 402.
Quaere, whether the preferring of
an indictment against a party for
night poaching, which is ignored, is
a commencement of the prosecu-
tion within 9 Geo. 4, c. 69, s. 4, so ^
as to warrant the conviction of the
party on another indictment prefer-
red four years after the offence?
Rex V. KiUminster, 7 C. & P. 228
— Coleridge.
The issuing of a warrant of ap-
prehension is not a commencement
of proceeding's, within 9 Geo. 4, c.
69, s. 4. Reg, v. HtiU, 2 F. & F.
16— -Pollock.
Upon the, trial of an indictment,
in order to prove that the proceed-
ings were commenced within twelve
months after the commission of the
offence a warrant for the party's ap-
prehension issued within the twelve
months was produced ; but the in-
formation on which the warrant
was founded was not put in evi-
dence : — Held, that, in the absence
of the information, the warrant was
not legal evidence that the proceed-
ings had been commenced within
the time limited. Reg. v. Parker,
9 Cox, C. C. 475 ; L. & C. 459 ; 10
Jur., N. S. 596 ; 33 L. J., M. C. 135 ;
12 W. R. 765 ; 10 L. T., K S. 463.
C. was indicted for night poach-
ing on the 6th February, 1863.
He pleaded guilty, but subsequent-
ly applied by his counsel for
leave to withdraw the plea, and to
move in arrest of judgment, upon
the ground that the proceedings
against him had not been commenc-
ed within twelve calendar months,
as directed by 9 Geo. 4, c. 69, s. 4 :
— Held, that the application to
withdraw the plea was one which
390
NIGHT POACHING.
ought to be granted, and that, as no
warrant or information was pro-
duced shewing that proceedings had
been commenced within twelve
months, that the objection was fatal.
Beg. V. Ga^hoU, 21 L. T., N. S. 263
— ^Byles.
3. Indictment,
An indictment on 57 Geo. 3, c.
90, charging a party with having
entered into a forest, chase, <fcc.,
with intent to destroy game, and
being found armed in the night,
^ must, in some way or other, have
Srticularized the place. RexY, Hid-
, R. & R. C. C. 515.
In an indictment for night poach-
ing, it is advisable to insert a dis-
tinct averment that the defendants
were armed when they entered and
were on the land, in addition to the
usual allegation, '^ being then and
there by night as aforesaid, armed."
Rex V. WUkes, 7 C. & P. 811—
Parke.
In an indictment under 9 Geo. 4,
c. 69, s. 9, it is sufficient to charge
entering, <&c., certain land in the
occupation of A., without specifying
whether it was inclosed or not.
Rex V. Andrews^ 2 M. & Rob. 37—
Gumey ; /& P., Reg. v. Morris ^ 5
Cox, C. C. 205.
Where an indictment alleged that
A., B., C, D., to the number of
three and more together, did by
night unlawfully enter divers closes
there situate, and being in the occu-
pation of E., and were there and
then in the said closes, armed with
guns for the purpose of destroying
' game : — Held, that it did not con-
tain a sufficient averment that the
defendants were by night in the
closes for the purpose of destroying
game. Davies v. Rex (in error), 10
B. & C. 89 ; 5 M. <fc R. 78.
An indictment for night poaching
stated the offence to have been com-
mitted in a wood, called " the Old
Walk of, and belonging to, and then
in the occupation of James, Earl of
W." ; and it was proved that the
occupation was correctly stated, bat
that the name of the wood was Loog
Walk, and that it had never been
called Old Walk :— Held, a var-
iance. Rex V. Owen^ Car. C. L
309 ; 1 M. C. C. 118.
An indictment for assaulting a
gamekeeper with a weapon, stated
that the defendants were in certain
land of J. R., Earl of B., by nigfat,
armed with guns, for the purpose of
destroying game, and that thej
were '^ then and there in the said
land by night, as aforesaid, by one
W. R., the servant of the said J.
R., Earl of B., then and there hav-
ing lawful authority to seize and
apprehend the said [defendants]
found," and that the defendants
with the guns assaulted and offoed
violence to W. R. : — ^Held, that the
indictment was bad, as it did not
sufficiently shew that the defend-
ants, when found by W. R., were
committing any offence against the
9 Geo. 4, c. 64. Reg. v. Oumodf
9 C. & P. 730— Gumey.
A count for night poaching may
be joined with a count for assault-
ing a gamekeeper authorized to ap-
prehend, and with counts forassaolt-
ing a gamekeeper in the execution
of his duty, and for a common as-
sault. Rex V. IHnacaney 5 €. A P.
551— Parke.
It is sufficient to allege that the
land is land " of and belongii^ to
J. W. D.," without stating it to be
in the occupation of J. W.D. Reg.
V. Riley, 3 C. & K. 116— Pattcson.
Or to name any particular close,
it is sufficient to say, " land in the
occupation of B. or C." as the feet
may be. Reg. v. TTezsseU, T. & M.
598 ; 2 Den. C. C. 274 ; 5 Cox, C.
C. 188; 3C. & K. 150; 15 Jar.
434 ; 20 L. J., M. C. 192.
But " a certain cover in the pariA
of A." is too general a description
to sustain an indictinent for poach-
ing. Rex V. Crick, 5 C. & P. 508
— vaughan.
A count for assaulting a game-
keeper alleged that the defendants,
EVIDENCK
891
with other persons, to the number
of three or more, entered by night a
oertain close with guns and other
offensive weapons, tor the purpose
of taking and destroying game, and
then proceeded to allege that the
defendants being then and there in
the said land, were found by one H.
S., the servant of B. W. W., and
there with the said guns assaulted
and beat tbe said H. S. : — Held,
that the count was defective for not
alleging that the defendants were in
the close armed with guns, &c., ac-
cording to the language of sect. 9
of 9 Geo. 4, c. 69, JReg, v. Ma^y 5
Cox, C. C. 176— Patteson.
An indictment charged A., B. and
flix others, ^* that they, being re-
spectively armed witli guns and
other offensive weapons, entered."
A. and B. were each proved to have
been armed with a gun, the other
ax with bludgeons. Objection,
that the averment, '^ other offensive
weapons," (not specifying what)
made the arming of the other six
only constructive, which was not
snfiicient to bring them within tbe
statute : — Held, good. Jieg, v. Good-
fdhw, 1 Den. C. C. 81 ; 1 C. & K.
724.
An indictment under 9 Geo. 4. c.
69, 8. 1, that on the 20th of Decem-
ber, 1854, C. was convicted for that
he, within the space of six calendar
months ^ast past, by night, afler the
expiration of the first hour after
sonset ; and before the beginning of
the first hour before sunrise, did, by
night, then and there unlawfully
enter a close with a gun, for the
purpose of then and tliere taking
and destroying game, and that he
was then sentenced to be imprisoned
for the period of three calendar
months ; that afterwards, to wit, on
the 27th of November, a. d. 1858,
he was duly convicted, for that he,
within six calendar months next be-
fore, Ac, to wit, on the 24th of
November, 1860, in the night of the
same day, by night, unlawfully did
enter and be in and upon certain
inclosed land, with certain instru-
ments, for the purpose of killing,
taking and destroying game there-
on, this being his second offence,
and was then adjudged to be im-
prisoned for six calendar months, is
good, as it sufficiently shews upon
the face of it, that two previous
convictions of offences within the
ta*ms of the act had taken place.
Cureton v. Heg, (in error), 1 B. A
S. 208 ; 8 Cox, C. C. 481 ; 30 L. J.,
M. C. 149 ; 9 W. R. 665.
4. Evidence.
On an indictment for wounding
with intent to prevent lawful appre-
hension, it was proved that the
prisoners were found poaching in
the night, armed, in a preserve
which had beloi^ed to the Earl of
L., and then was in the possession
of the earPs trustees. Ine person
trying to apprehend was a watcher
employed by the head keeper, the
latter having been appointed by the
earl some twenty years before, and
paid by his agent down to the time
of the trial ; but the head keeper
had never had any direct commu-
nication with the trustees: — Held,
sufiicient proof of an authority to
apprehend. Heg. v. Melding^ 2 C.
& K. 621— Cresswell.
Where A. was indicted for night
poacliing on the land of the prosecu-
tor, which land was in the occupa-
tion of a tenant : — Held, that it was
not necessary, in order to support
the indictment, to shew by evidence
that A. was there without the per-
mission of the tenant, or of the
prosecutor, if the right to take game
upon the land had been reserved to
him. JReg, v. Wood^ Dears. & B*
C. C. 1 ; 2 Jur., N. S. 478 ; 25 L.
J., M. C. 96.
An indictment under 9 C^. 4, c.
69, charged, that the prisoners,
" were in the Great Ground on the
11th February, armed, with intent,
then and there to take game." The
evidence shewed that the prisoners
were all seen, for the first time, in
892
NIGHT POACHING.
the Great Ground, employed in tak-
ing down two nets ; after this was
done they picked up some dead
hares, which were lying on the
ground near the nets, and hanging
them on long sticks over their
shoulders, walked homewards with
them. It also appeared that they
had dogs with them in the Great
Ground : — Held, that the questions
for the jury were, iirst, whether
they were in the Great Ground
with the intent to take game at that
time, and that such intent might be
infen'ed from the presence of the
nets and dogs, though they might
have taken the hares elsewhere.
Reg, V. Turner, 8 Cox, C. C. 804—
Rolfe.
Held, also, that the allegation
that they were armed could not be
sustained, unless the jury should be
of opinion that they took the sticks
for the double purpose of carrying
away the game, and of attack or
defence in the event of their being
interrupted by keepers while in the
pursuit of game. Ih.
5. Convictions and Commitments,
A conviction under 9 G^o. 4, c.
69, 8. 1, must allege that the de-
fendants, by night, were in certain
land for the purpose of taking game
in such land. Fletcher v. CaUhorp,
1 New Sess. Cas. 529 ; 9 Jur. 205 ;
14 L. J., Q. B. 49.
A warrant of commitment, re-
citing an order of sessions confirm-
ing a conviction under 9 Geo. 4, c.
69, s. 1, ordering the prisoners, at
the expiration of their time of im-
prisonment, to find sureties not to
offend again, instead of not so to
offend again, is ill. Reynolds Ex
parte, 8 Jur. 192 ; 18 L. J., M. C. 65
— B. C. — Wightman.
The court will presume that the
commitment contains a true recital
of the conviction; tlierefore, where
the certiorari is taken away, and
the prosecutor seeks, under sect. 7,
to avail himself of the conviction to
cure a defect in the commitment.
(C
u
the prisoner is not bound, nor is it
his duty, to bring the conviction be-
fore the court. lb.
On an indictment for night poach-
ing, having been twice summarily
convicted, the convictions prodaoed
contained no allegation that the de-
fendant had entered at night: —
Held, insufficient evidence of a pre-
vious conviction. Reg, v. Merry^
2 Cox, C. C. 240— Maule.
6. Hares or RtMUs.
By 24 & 25 Vict. c. 96, s. 17,
" whosoever shall unlawfully and
" wilfully, between the expiration
" of the first hour after sunset, and
" the beginning of the last hour be-
" fore sunrise, take or kill any hare
" or rabbit in any warren or ground
lawfully used for the breeding or
keeping of hares or rabbits, wheth-
" er the same be inclosed or not,
" shall be guilty of a misdemeanor.
" And whosoever shall unlawful-
" ly and wilfully, between the be-
" ginning of the last hour before
" sunrise and the expiration of the
" first hour after simset, take or kill
any hare or rabbit in any sach
warren or ground, or shall at any
" time set or use therein any snare
" or engine for the taking of liares
" or rabbits, shall, on conviction
** thereof before a justice of the
" peace, forfeit and pay such sum
" of money, not exceeding 5^., as to
" the justice shall seem meet; pro-
'^ vided that nothing in this section
" contained shall anect any person
" taking or killing in the daytime
" any rabbits on any sea bank or
" river bank in the county of lin-
'^ coin, so far as the tide shall ex-
" tend, or within one furlong of sud
" bank." ( With the exception of the
substittaion of defined hours for
" night time " and " dag time^^ tim-
ilar to former provision, 7 <fc 8 Geo.
4, c. 29, 8. 80.)
7 & 8 Geo. 4, c. 27, rej^eaki 3
Jac. 1, c. 18; 7 Jac. 1, c 18; 5
Geo. 8, c. 14 ; and so much ofti &
28 Car. 2, c. 25, as related to i^
u
u
OBSCENITY AND INDECENCY.
893
su^'ect; and 24 & 25 Vict. c. 95,
repeals 7 <fc 8 Geo. 4, c. 29, s. 30,
and 7 Will. 4 & 1 Vict c. 90, s. 5.
Taking a rabbit in a wire was
sufficient to constitute an offence
within 5 Geo. 3, c. 14, s. 6,
though the rabbit was not killed,
and Uiough the party never took it
away. Mex v. Glover, R. & R. C.
C.269.
Destroying rabbits in the night
time, in a rick-yard in which they
were kept, was not within 7 & 8
Geo. 4, c. 29, s. 30. Bex v. Oar-
rati, 6 C. & P. 869— Patteson.
XXV. Obscentty akd Indecency.
1. Obscene Prints and Pictures, 393.
2. Indecent Exposure, S93.
1. Obscene Prints and Pictures,
20 & 21 Vict. c. 83, " provides
" additional powers for the suppres-
" sion of the trade in obscene books,
" prints and pictures."
It is a m^emeanor to procure
iodecent prints with intent to pub-
lish them. Dugdale v. JReg, (in
error), 1 El. & Bl. 435 ; Dears. C.
C. 64; 17 Jur. 546 ; 22 L. J., M. C.
50.
But to preserve and keep them in
possession with such intent, is not.
The sale of an obscene print to a
person in private, he havmg in the
first instance requested that such
prints should be shewn to him, his
object being to prosecute the seller,
is a sufficient publication to sustain
the charge. Reg, v. Garlile, 1 Cox,
C. C. 229.
Obscene Books and PubliccUions,']
Copies of a pamphlet of an obscene
nature were seized under 20 & 21
Vict. c. 83. The publisher did not
keep or sell the pamphlet for the
sake of gain, nor to prejudice good
morals, but for a purpose which he
considered to be good : — Held, that
the object of the publisher did not
alter the character of his act, the
natural consequence of which he
must be taken to have intended, and
the natural consequence being one
which would make the publication
of the pamphlet a misdemeanor, and
in the opinion of the justices who
ordered the seizure proper to be
prosecuted as such, the seizure was
right. Beg. v. Hicklin, 16 W. R.
801 ; 37 L. J., M. C. 89 ; 3 L. R.,
Q. B. 360 ; 11 Cox, C. C. 19 ; S. 0,
nom. Beg, v. Wolver/mmpton {Be-
corder), 18 L. T., N. S. 395.
2. Indecent JSxposure,
(2^3 Vict, c, 47, s. 58.;
Bathing in the sea on the beach
near inhaoited houses, from which
the person may be distinctly seen, is
an indictable offence, although the
houses may have been recently
erected, and till then it may have
been usual for men to bathe in great
numbers at the place in question.
Bex V. Orunden, 2 Camp. 89 — Mac-
donald.
An indecent exposure in a place
of public resort, if actually seen
only by one person, no other person
being in a position to see it, is not a
common nuisance. Beg, v. Webb,
1 Den. C. C. 338 ; 3 Cox, C. C. 183;
T. & M. 23; 2 C. & K. 933; 13 Jur.
42 ; 18 L. J., M. C. 39. S, P., Beg.
v. Watson, 2 Cox, C. C. 376.
An averment in an indictment,
" in the sight and view of B.," does
not mean that B. actually saw it,
but only that he might have seen it
had he chanced to look. lb,
A party was indicted for an inde-
cent exposure in an omnibus, sever-
al passengers being therein. The in-
dictment contained two counts ; one
laid the offence as having been com-
mitted in an omnibus, and the other
in a public highway : — Held, that
an omnibus was sufficiently a public
place to sustain this indictment.
Beg. V. Holmesy Dears. C. C. 207 ; 3
594
OBSCENITT AND ENPEOENCT.
C. & K. 860 ; 17 Jur. 562 ; 22 L.
J., M. C. 122 ; 6 Cox, C. C. 216.
An indictment for this otifenee,
which does not conclude ad com-
mune nocumeatum, is aided by 14
& 15 Vict. c. 100, 8. 25. Ih,
An indictment charged two de-
fendants with indecent exposure of
their persons in an open and public
place : — Held, that an uriQal with
boxes or divisions for the conveni-
ence of the public, and situated in
an open market, was not a public
place within the meaning of the al-
legation. Reg, V. Orchard^ 3 Cox,
C. C. 248.
An indictment alleging that A.
" in a certain open and public place
did lay his hands on the person and
private parts of B. with intent to
stir up in his own and B.'s mind un-
natural and sodomitical desires and
inclinations, and to incite B. to the
committing and perpetrating with
A. divers unnatural and sodomitical
acts, and that B. in the said open
and public place, did permit and
suffer A. to lay his hands, c&c., with
the like intent," is bad, as not stat-
ing any offence with legal certainty.
lb.
In order to render a person liable
to an indictment for indecently ex-
posing his person in a public place,
it is not necessary that the exposure
should be made in a place open to
the public. K the act is done where
a ffreat number of persons may be
offended by it, and several see it, it
is sufficient. Beg, v. Thcillmany 9
Cox, C. C. 888 ; L. & C. 326 ; 12
W. R. 88; 9 L. T., N. S. 425; ^^ L.
J., M. C. 58.
Where a man exposed himself in-
decently on a roof at the back of a
house in London, so as to be visible
to persons in the back premises of
many other houses, but not so as to
be capable of being seen from any
place open to the public, and seven
persons in one house saw the ex-
posure, the conviction was held
good. Ih.
An indictment for indecent ex-
posure, charging the offence to have
been committed on a highway, is
not sustained by evidence ihsX the
offence was commitled in a place
near the highway, though in M
view of it. Beg. v. FarrtH, 9 Cox,
C. C. 446.
An indecent exposure seen by one
person only, and capable of being
seen by one person only, is not an
offence at common law. Secaa^if
there are other persons in such a
situation as that they may be wit-
nesses of the exposure. lb.
The prisoners committed fornica-
tion in open day, on a common, in
the sight of one witness only, butso
that any one passing over the com-
mon, or along a public footway ad-
jacent, could have seen them. There
was no proof that any persons were
passing over the common or along
the footway at the time. Qaseie,
whether this was an indictable of-
fence? Beg, Y,MioU, L,&C,10S,
An indictment for an indecent ex-
posure of the person before one J.
S., with the intent to provoke him
to commit an imnatiiral crime,
which had been removed by the de-
fendant by certiorari, is not within
s. 28 of 7 Geo. 4, c. 64, so as to en-
able the court before whom it is
tried to grant the costs of the pros-
ecution. Beg, V. , 8 N. A P.
627 ; 8 A. A E. 589.
A person is indictable for a com-
mon nuisance by indecently expos-
ing his person in a public place,
though the exposure is made in a
place* not op^a to the public, if the
act is done where a great number of
persons may be offended by it, and
several see it. Beg, v. MaMam^ 33
L. J., M. C. 58.
A herbalist, who publicly exposes
and exhibits in his shop, on a high-
way, a picture of a man naked to
the waist and covered witli eruptive
sores, so as to constitute an euiibi-
tion offensive and distrusting, is gufl-
ty of a nuisance, although there is
nothing immoral or indecent in the
picture, and his motive was inno-
PERJURY— FAIfiE OATHS.
895
cent Reg. v. Grey^ 4 F. & F. 73
fiathing near a public footway,
freqnented by females, is unlawful,
and renders the party so bathing
liable to be indicted for indecency.
Nor is it any defence that the place
has been always used as a resort for
bathers; or that the exposure has
BOt been beyond what is necessarily
incident to such bathing. Reg. v.
Reed, 12 Cox, C. C. 1.
An indictment charged two de-
fendants with indecent exposure of
their persons in a public place, the
same being a public urinal : — Held,
that the urinal was a public place,
and that the commission of the in-
decency therein was indictable. Reg,
V. HarrU, 11 Cox, C. C. 659.
XXVI. Perjury, False Oaths
AND Faxse Declarations.
1. FaUe Oaths, 395.
2. On AffidaviUf 398.
8. Before Justices^ 400.
4. Before Surrogates, 402.
5. Before Arbitrators, 402.
6. Indictment and Information, 403.
7. Amendment of Variances, 410.
8. Evidence, 411.
9. Proof by Judges* Notesof Evidence
414.
10. Proof of Particular Averments,
11. Proof of Indictment, 416. [414.
12. Witnesses and Corroborative Evi-
detux, 416.
13. Trial, 418.
14. FaJse Declarations, 419.
(a) Customs, 419.
(h) On Registration of Voters
and at Parliamentary Elec-
tions, 419.
f c^ Corporate, 420.
(^) Before Magistrates, 420.
(e) On Registration of Births,
Deaths or Marrmges, 421 .
15. Seditious Practices and Unlawful
Oaths, 422.
1. MUse Oaths,
The o/fence.]— By 22 <fc 23 Vict.
0,17, 8. 1, ** a bill of indictment for
" peijury or subornation of perjury
'^cannot be presented to or found
'^ by a grand jury unless preferred
" without previous authorisation.''
By 14 & 15 Vict. c. 99, s. 16,
" every court, judge, justice, officer,
'^ commissioner, arbitrator or other
" person now (1851) or hereafter
" having by law or by consent of
" parties, authority to hear, receive
" and examine evidence, is empow-
^' ered to administer an oath to all
" such witil^sses as are legally called
" before them respectively."
5 £liz. c. 9, made perpetual by 29
Eliz. c. 5, s. 2, and 21 Jac. 1, c. 28,
s. 8 ; 2 Greo. 2, c. 25, made perpetual
hy 9 Geo. 2, c. 8 ; 7 Will. 4 & 1
Vict. c. 23. — " There is a ^reat num-
" ber of perjury clauses m various
" acts of Parliament, each relating
'^ to the oaths respecting the subject
" matter of those acts respectively/'
To found an indictment for per-
jury, the requisite circumstances are
these : the oath must be taken in a
judicial proceedu^ before a compe-
tent jurisdiction; and it must be ma-
terial to the question depending and
felse. Rex v. Aylett, 1 T. R. 63.
With respect to the falsity of an
oath, it has been considered to be
immaterial whether the fact which
is sworn to be in itself true or false.
Rex V. Edwards, 3 Russ. C. & M. 1.
A man may be indicted for swear-
ing that he believes a fact to be
true which he must know to be
false, altlioush he does not swear
positively. &ex v. Pedley, 1 Leach,
C. C. 325.
Falseliood, not strictly amounting
to perjury, is an indictable offence
as a misdemeanor. Ex parte Over-
ton, 2 Rose, 257.
Inciting a witness to give partic-
ular evidence when the inciter does
not know whether it is true or false,
is a iiigh misdemeanor, especiallv if
he being an attorney on one side,
gets himself employed for that pur-
pose on the other side : at least, if
the evidence is given accordingly.
lb,
Semble, that taking a false oath
before a court-martial is peijury at
396,
PERJURY.
common law. Reg, v. Heane^ 4 B.
& S. 947 ; 9 Cox^ C. C. 433 ; 10
Jur., N. S. 724; 9 L. T., N. S. 719 ;
12 W. R. 417.
" But by the Annual Mutiny Act
« (1866), 29 & 30 Vict. c. 9, s. 13,
" all general and other courts-mar-
^' tial shall administer an oath to
" every witness or other person who
" shall be examined before any such
" court, in any manner •relating to
" any proceeding before the same."
Wilful and corrupt false swearing
before a local manne board, duly
and lawfully appointed and consti-
tuted, upon a matter material to an
inquiry then being lawfully invest-
igated by them,^ in pursuance of the
17 & 18 Vict. c. 104, and 25 <fc 26
Vict. c. 63, is perjury. Reg. v.
Tomlinson, 1 L. R., C. C. 49 ; 12
Jur., N. S. 945 ; 36 L. J., M. C. 41;
15 W. R. 46 ; 15 L. T., N. S. 188.
Peijury cannot be committed in
evidence given before commissioners
of bankrupt, when there was no
good petitioning creditor's debt to
support the fiat. Beg, v. ^Jtoinqton,
2 M. C. C. 223 ; Car. & M. 319.
A. was indicted for perjury, al-
leged to have been committed on the
tnal of B. for perjury. The indict-
ment against A. averred, that the
evidence he gave on the trial of B.
was material, and that B. was con-
victed. B. was convicted and sen-
tenced, but the judgment against B.
was afterwards reversed on writ of
error : — Held, that the reversal of
the judgment against B. was no
ground of defence for A., as shewing
that his evidence could not have
been material, and that it did not
negative the allegation that B. had
been convicted. Reg, v. Meek, 9
C. & P. 513— Williams.
In an answer in chancery to a bill
in ecjuity against the defendant for
specific performance of an agree-
ment relating to the purchase of
land, he relied on the Statute of
Frauds (the agreement not being in
writing), and also denied having en-
tered into any such agreement. Up-
on this denial in his answer he wis
indicted for perjury: — Held, that
the denial of an agreement, whicii,
by the Statute of Frauds, was not
binding on the parties, was imma-
terial and irrelevant, and that the
defendant was entitled to an ac-
quittal. Rex V. Dunstcn, R & M.
109— Abbott.
Perjury cannot be assigned on an
answer in chancery, denying a prom-
ise absolutely void by the Statute of
Frauds. Rex v. Bene9ech, Peake's
Add. Cas. 93 — Kenyon.
Or form the subject of an indict-
ment where the supposed perjniy
depends upon the construction of a
deed. Rex v. Orespigny, 1 Esp. 280
— Kenyon. And see Rex v. Pepyt^
Peake, 138.
If the record of a cause is errone-
ous, no perjury can be assigned for
false testimony given in the course
of the trial. J?«c v. Cohen, 1 Staik,
511 — ^Ellenborough.
Peijury may be assigned as to
what a man has sworn that he
thought or believed ; the difficulty,
if any, being in the proof of the as-
signment. Reg, V. Schlesinger,\0
Q. B. 670 ; 2 Cox, C. C. 200 ; 12
Jur. 283 ; 17 L. J., M. C. 29.
A witness, having sworn at a trial
of a cause, that he did not write
certain words in the presence of D.,
it is a good assignment of perjuiy,
that he. did write them in the pre®,
ence of D. Tb,
The presence of D. may be a fiwf
as material as the writing of th»
words. lb,
A, brought an action against B
and his partners for the price (A
wheat, and recovered a verdict on
the bought and sold notes. B. and
his partners filed a bill in equity
against A., which stated that tie
bought and sold notes did not con-
tain all the terms of the contract, as
it had been also agreed by jjarol
between A. and B. that the wheat
should be paid for by a draft at
three months; and the prayer of U»
bill was, that A. should be restrain-
FALSE OATHS.
897
ed from soing out exe9Utioii. A.,
by his answer, denied the statement
in the bill ; and the bill was dis-
missed:— Held, that if this denial
by A was wilfully false, it amount-
ed to perjury. lieg, v. Yates^ Car.
& M. 132 ; 5 Jur. 636— Coleridge.
Every question on cross-exanuna-
tion of a witness, which goes to his
credit, is material. Reg, v. Overton^
Car. & M. 655 ; 2 M. C. C. 263.
'A question having no general
bearing on the matters in issue may
be made material by its relation to
the witness's credit, and false swear-
ing thereon will be perjury. Ih,
On a trial where it was material to
prove whether J. had died before
M., the defendant produced a docu-
ment purporting to be a copy of
J.'s will, and falsely swore that he
had examined it with the original
will in the registry ; and also, that
he had examined a memorandum at
the foot of the copy of the will,
with the entry in a book called the
Act Book in the same registry.
The judge offered to admit the evi-
dence, but it was withdrawn; it
was, in point of law, inadmissible :
—Held, that the circumstances that
the evidence was inadmissible, and
was withdrawn, did not affect the
question of perjury, as it could not
purge the false swearing ; and that,
as it was not material whether pro-
bate of J.'s will was granted in the
lifetime of M., if the evidence of the
prisoner had been received it would
have been material to the issue,
and, consequently, that the false
oath of the prisoner amounted to
perjury. Reg. v. PMUpotts, 2 Den.
C. C. 302 ; 3 C. & K. 135 ; T. &
M. 607 ; 16 Jur. 67 ; 21 L. J., M. C.
18 ; 5 Cox, C. C. 363.
In an action in a county court by
an executrix for goods sold, she
&lsely swore on cross-examination
that she had never been tried at the
Old Bailey, and had never been in
mtody at the Thames Police Sta-
tion : — ^Held, on the trial of an in-
dictment for perjury, that this evi-
dence was material. Reg. v. Lavey^
3 C. & K. 26— Campbell.
Semble, that whether the evidence
is material or not is a question to be
left to the jury, Ih. See Reg, v.
Courtney, 7 Cox, C. C. 111.
To convict a person of perjury in
swearing falsely before a grand jury,
it is not sufficient to shew that the
person swore to the contrary before
the examining magistrate, as non
constat which of the contradictory
statements was the true one. Reg.
V. Hughes, 1 C. & K. 519— TindaL
Perjury may be assigned upon ev-
idence going to the credit of a mate-
rial witness in a cause, although
such evidence, being legally inad-
missible, ought not to have been re-
ceived. Reg, V. Gibbon, L. & C.
109 ; 9. Cox, C. C. 105 ; 8 Jur., N.
S. 159 ; 31 L. J., M. C. 98 ; 10 W.
R. 350 ; 5 L. T., N. S. 805.
G, was indicted for perjury, in
having falsely sworn that in Septem-
ber, 1860, he had carnal knowledge
of A. A. had obtained an affiliation
summons against H., and in her
cross-examination denied having had
connexion with the defendant in
September, 1860 (a time which
could not have made him the fath-
er of the child) . The defendant was
called as a witness on behalf of H.,
and swore that he had connexion
with A. in the month named : — Held,
that although his evidence was le-
gally inadmissible, yet, being admit-
ted, it became material, and perju-
ry might be assigned upon it. lb,
A defendant was sued in a county
court by the name of Bernard Ed-
ward M. The judge decided that
the plaintiff was entitled to recover,
and whilst determining how the de-
fendant should pay the debt, asked
him his name ; when he swore that
it was Edward, not Bernard, only
Edward ; and thereupon the judge
refused to amend, and struck out
the cause. The defendant was in-
dicted for perjury ; and at the trial
it was proved that he had wilfully
and corruptly sworn falsely in the
398
PERJURY.
above answers, and the jury con-
victed him : — Held, that the con-
viction was right ; the answers be-
ing sufficiently material to the mat-
ter under inquiry. Beg, v. MuKany^
10 Cox, C. C. .97 ; L. & C. 593; 11
Jur., N. S. 492 ; 34 L. J., M. C.
Ill ; 13 W. R. 726; 12 L. T., N.
S. 549.
An unmarried woman having re-
covered judgment in a county court
against A., obtained a judgment
summons against him from the Sher-
iffs' Court, London. At the hear-
ing, it having been ascertained that
the plaintiff had married in the
meantime, the judge amended the
title of the cause by inserting the
husband's name: — Held, that he
had no power to do so, and conse-
^[uently, that an indictment for per-
jury could not be maintained agamst
the defendant for false evidence giv-
en at that hearing. Reg, v. Pedrce,
3 B. & S. 531 ; 9 Cox, C. C. 258 ; 9
Jur., N. S. 647 ; 11 W. R. 235; 7 L.
T., N. S. 597.
H. was indicted for peijury in an
affidavit made under the Bills of
Sale Act, 1854 (17 & 18 Vict, c
36), for the purpose of getting a bill
of sale filed. The affidavit was
sworn before a coinmissioner for
taking affidavits in the court of
Queen's Bench : — Held, that his of-
fence did not constitute perjury, but
that he was guilty of ts^dng a false
oath, which offence was under the
circumstances a common law misde-
meanor. Heg. V. ffodgkiss, 1 L.
R., C. C. 212 ; 18 W. R. 150 ; 39
L. J., M. C. 14 ; 21 L. T., N. S. 564.
C. was indicted for perjury com-
mitted on the hearing of a summons
which had been taken out a^inst
himself, for permitting gambhng in
his house contrary to the tenor of
his licence, under 9 Geo. 4, c 61.
The defendant had tendered him-
self as a witness, representing him-
self as the son of C, and had there-
upon been sworn and given evidence
on behalf of C, who was really him-
edif , and that evidence formed the
subject of the indictment :— Held,
that as he was not a competent wit-
ness and could not give evidence in
his own behalf, the magistrates had
no power to swear him or recare
his evidence, and that he could not
therefore be guilty of peijuiy. Beg»
V. Glegg, 19 L. t., K S. 47— Hm.
nen.
2. On Affidavits.
No perjury can be assigned upon
a foreign affidavit Musgravev.lb'
dex, 19 Ves. 652.
But any person making, or know-
ingly using a false affidavit midie
abroad, is ^ilty of a misdemeanor
in attemptmg to pervert public jus-
tice, and IS punishable by indidzneni
Omealy v. NeioeU^ 8 East, 364.
Perjury may be assigned upon an
affidavit of an attorney of the conit,
made in answer to a charge exhibit-
ed against him in a sunmiaiy way.
Hex V. Crosdey, 7 T. R. 315.
An indictment for perjury, asagn-
ed on an affidavit sworn before the
court, need not state, nor is it nec-
essary to prove, that the affidav-
it was filea of record, or exhibited
to the court, or in any manner used
by the party. Ih.
An indictment may be supported
against a marksman, for swearing
falsely in an affidavit, thougii it
would not be receivable in the oomt
it was sworn in, because the junt
did not state that it had been rod
over to the partjp^ swearing it ; but
the person adnunistering the oith
must prove that the party swearing
it in fact understood its content!,
and the peijury is complete at die
time of the swearing of the affidavit ;
and whether it is receivable in the
court or not is immaterial, if the
reason why it is not receivable is,
that some formal regulation is not
complied with. Rex v. Bdiiey, 1
C. & P. 268 ; R. & JUL 94-Iittlo-
dale.
A person cannot be convicted of
peijury on an affidavit, if it refers
to a foimw affidavit, which thepnw*
ON AFFIDAVITS.
899
msaUsf is not in a oondition to prove.
Ih.
Semble, that a person may be oon-
Yicted of perjury contained in an af-
fidavit intitled, in a cause, '^ A. B.
against C. D. and others," although,
by the roles of the courts, all affi-
davits should in their title name all
the plaintiffs and all the defendants.
JReg V. Christian, Car. & M, 388
— ^Denman.
Qusre, whether, in an affidavit,
die description of the deponent at
the commencement of it is a part of
what he swears. Heff. v. Chapman,
1 Den. C. C. 432 ; 2 C. & K. 846 ;
T. «fc M. 90 ; 13 Jur. 885 ; 18 L. J.,
M.C. 152.
But if in an indictment for swear-
ing falsely before a surrogate to ob-
tain a marriage Uoence, this and oth-
er things material are aUeged to be
&l8ely sworn (but not alleging the
&lse swearinff to be in an affidavit),
proof of the ntlse swearing as to any
one of the other things will sustain
the count. Ih.
A party filing a bill for an injunc-
tion, and making an affidavit of
matters material to it, is indictable
far perjury committed in that affi-
davit, though no motion was ever
made for the injunction, i^ex v.
White, M. <fe M. 271— Tenterden.
Where perjury was charged to
have been committed in that which
was in effect the affidavit on an in-
terpleader rule, and the indictment
set out the circmnstances of the pre-
vious trial, the verdict, the judg-
ment, the fieri facias, the levy, the
notice by the prisoner to the sheriff
not to sell, and the prisoner's affi-
davit that the goods were his prop-
erty, but omitted to state that any
rule was obtained according to the
Interpleader Act (1 & 2 WUl. 4, c.
58) : — ^Held, that the indictment
was bad, as the affidavit did not ap-
pear to have been made in a judicial
proceeding. Heg, v. JSishop, Car.
4b M. 302— Coleridge.
In an indictment for makinga fiilse
affidavit, it is sufficient to state that
the defendant came before A., and
took his corporal oath (A. having
power to administer an oath), with-
out setting out the nature of A.'8 au-
thority. Hex V. CaUanan, 6 B. &
C. 102; 9D. &R.97.
Where perjury is assigned upon
several parts of an affidavit, those
parts may be set out in the indict-
ment as if continuous, although
they are in &ct separated by the in-
troduction of other matter. lb.
Before 17 & 18 Vict. c. 78, a mas-
ter extraordinary in Cliancery had
no authority to administer oaths in
matters before the Court of Admi-
ralty ; and a conviction for perjury
in an affidavit used in the Court of
Admiralty, but sworn before a mas-
ter extraordinary in Chancery, could
not be supported. Reg, v. Stone,
Dears. C. C. 251 ; 17 Jur. 1106 ; 23
L. J., M. C. 14.
The 1 & 2 Vict. c. 110, s. 8, con-
tained provisions for filing affidavits
of debt against a trader, and his be-
ing deemed to have committed an
act of bankruptcy on not doing cer-
tain things. The 5 & 6 Vict c
122, contained other provisions re-
lating to the same matter ; and sect.
67 enacts, that affidavits to be made
in matters of bankruptcy, or under
any statute relating to bankrupts or
this act, shall be sworn before a reg-
istrar of the Court of Bankruptcy.
On an indictment for perjury, upon
an affidavit made under 1 <fe 2 Vict,
c. 110, s. 8, and sworn before the
registrar of the Court of Bankrupt-
cy :— Held, that 1 & 2 Vict. c. 110,
so fiar as regarded sect. 8, was a
statute relating to bankrupts within
5 <fe 6 Vict. c. 122, 8. 67, and that
the affidavit related to matters of
bankruptcy, and, therefore, was
sworn before competent authority.
Reg. V. Dunn, 11 Jur. 908 ; 16 L.
J., Q. B. 382 ; 12 Q. B. 1026.
An affidavit to hold bail may be
sworn before the issuing of the writ
of summons in the action ; and, there-
fore, an indictm^it for perjury com*-
mitted in such an^ affidavit need
400
PERJURY.
not state that any action was pend-
ing. King v. Reg* (in error), 3
Cox, C. C. 561 ; 14 Q. B. 31 ; 18
L. J., Q. B. 253— Exch. Cham.
An indictment for perjury in an
affidavit stated the affidavit to have
been sworn " before R. G. W., then
and there being a commissioner, du-
ly authorized and empowered to
take affidavits in the county of Glou-
cester, in or concerning any cause
depending in the Court of Excheq-
uer at Westminster." It was prov-
ed by R. G. W. that he had acted as
a commissioner for taking affidavits
in the Exchequer for ten years, but
had never seen his commission ; and
that, ten years ago, he applied to
his agent to procure for him a com-
mission to take affidavits in the Ex-
chequer, and that his agent had
told him that he had done so : — Held,
that the proof of R. G. W.'s acting
as a commissioner was primti facie
evidence that he was so. Reg, v.
Newton^ 1 C. & K. 469 — At<5herley,
Sent.
F. was indicted for perjury, com-
mitted by deposing to an affidavit
in a cause wherein ne was the plaint-
iff, and E. the defendant, that he
owed him 50Z. : — Held, that, in sup-
port of this indictment, evidence
was not admissible, that the cause
of F. against E. was, after the mak-
ing of the affidavit, referred by con-
sent, and an award made that E.
owed nothing to ¥. Reg, v Moreau^
11 Q. B. 1028; 12 Jur. 626; 17
L. J., Q. B. 187.
In perjury, the affidavit of serv-
ice of notice or application for leave
to issue execution against a share-
holder in a joint stock company is
insufficient evidence not havm^he
notice annexed to it. Reg. v. avd.
son, 1 F. & F. 56— Cockburn.
3. Before Justices.
An informatiou founded on 1 ife
2 Will. 4, c. 32, after stating an ap-
pearance and information by O. M.
against R. R., proceeded thus: —
" And the information having been
also verified upon the oath of W.
A., of i&c, another credible witness,
before me the said justice, hereupon
O. M. prays that R. R. may be
forthwith summoned, <fec.
" Exhibited by O. AL, ]
and sworn before me ! O. M.
the day and year first ( W. A
above written j
" W. F. C."
The party informed against haTine
appeared before two justices, evi-
dence was given by a witness for
him. An indictment for jieijury
having been preferred against this
witness, upon which he was found
guilty : — Held, that the proceeding
before the two justices was informal
for want of a deposition on oath of
the charge contained in the infor*
mation, in pursuance of 6 <&; 7 Will.
4, c. 65 ; and that, therefore, the
indictment could not be sustained.
Reg, V. Scotton, 5 Q. B. 493 ; D. &
M. 501 ; 8 Jur. 400.
But where an information, not
upon oath, was laid before a justice
of the peace under the Malicious
Trespass Act, 7 & 8 Geo. 4, c. 30,
s. 24, who thereupon issued a sum-
mons to the party charged. And
at the hearing the prisoners were
examined as witnesses, and upon
the evidence which they gave per-
jury was subsequently assigned :—
Held, that the hearing before the
magistrates was a judicial proceed-
ing, and that jurisdiction was giv-
en by the 24th section, although Xh&
information was not upon oath.
Reg, v. MUard, 17 Jur. 400 ; Dears.
C. C. 166 ; 22 L. J., M. C. 108 ; 6
Cox, C. C. 150.
In a case of peijury conunitted
before magistrates, the indictment
merely stated that the defendant,
intending to subject W. M. to the
penalties for felony, went before
two magistrates, and "did depose
and swear,'' ifec, setting out a de-
position, which stated, that W. B.
had put his hand into the defend-
ant's pocket and taken out a 5/.
notOi and assigning perjury upon it :
BEFORE JUSTICES.
401
—Held, that this was bad, as it did
not shew that any charge of felony
had been previously made, or that
the defendant then made any charge
of felony, or that any judicial pro-
ceeding was pending before the
magistrate. Meg. v. Pearson^ 8 C.
<fcf. 119— -Coleridge.
In an indictment tor perjury, alleg-
ed to have been committed on the
hearing of an information under the
Beer Act, 11 Geo. 4, & 1 Will. 4, c.
64, & 15, it is necessary to aver that
the justices were acting in and for
the division or place in which the
house IS situated ; but it is not nec-
essary to aver that they were acting
in petty sessions, as every meeting
of two justices in one place for bus-
iness is itself a petty sessions. Reg,
V. RawUns, 8 C. & P. 439— Park
and Piatteson.
An indictment allied that after
18 & 19 Vict. c. 118, K. was duly
smnmoned to appear before certain
justices, being and acting as two
justices of the peace in and for a
county, to answer before such jus-
tices a certain information and com-
plaint against him, of having open-
ed his house (a beer-house) on a
Sunday, for the sale of beer, after
three and before five in the after-
noon ; that K. duly appeared before
the justices at the petty sessions of
a petty sessional division in the
county, and that at the hearing, the
defendant being called as a witness
for K. falsely swore that he had
not been in the house of K. at all
that day ; that he had never seen a
certain policeman, and had not been
in B. that day, or for a fortnight be-
fore. At the trial it appeared that
no information had been laid in sup-
port of the summons, but that a su-
perintendent of police had stated
certain facts to the magistrate's
clerk, who had filled up a blank
summons against K., which a mag-
istrate had signed without making
any inquiry. The summons was
not produced. A policeman swore
to the fact of the defendant having
Fish. Dig.— 80.
been in K.*s house between the pro-
hibited hours, and to Confirm him
one witness swore he had seen the
defendant in B. at two o'clock in
the afternoon of the same day ; and
another swore that she had seen him
there between three and four on the
same day, on the read leading and
close to K.'s beer-house : — Held,
that it was sufiiciently alleged in
the indictment that the oifence was
one over which the justices had ju-
risdiction, and that it was commit-
ted in a place where they had juris-
diction ; that the production of an
information at the trial was not nec-
essary, and that the corroborative
evidence was sufficient. Reg, v,
SKdw, L. & C. 579 ; 10 Cox, C. C.
66 ; 11 Jut., N. S. 415 ; 34 L. J.,
M. C. 169 ; 13 W. R. 692 ; 12 L.
T., N.S. 470.
Perjury was committed before
magistrates, upon the second appli-
cation for a bastardy order, a for-
mer application having been dis-
missed on the merits k — ^Held, that
the magistrates had jurisdiction, and
that the prisoners were properly
convicted. Reg, v. Cooke^ 2 l)en.
C. C. 462 ; 16 Jur. 434 ; 21 L. J.,
M. C. 136.
A summons, after the birth of a
child, under 7 & 8 Vict. c. 101,
s. 2, against the putative father,
was issued on the personal applica-
tion of the mother of the bastard
child, not upon oath. The putative
father appeared to the summons,
and defended the case on the merits,
without objecting that the sum-
mons had issued on the statement
of the woman, not on oath : — Held,
that the putative father could not
afterwards raise the objection ; and
that he was liable to be indicted for
perjury committ^ by him on the
hearing of the summons. Reg, v.
Berry, 8 Cox, C. C. 121 ; 5 Jur.,
N. S. 820 ; Bell, C. C. 46 ; S, P.,
Reg, V. Simmons J Bell, C. C. 168 ;
8 Cox, C. C. 190; 5 Jur., N. S.
578.
Held, also, that evidence of pay-
402
PERJURY.
ment of money by the putative fa-
ther within twelve months of the
birth of the child, being evidence
of the paternity, was a material
fact on the hearing of the sum-
mons. Tb,
The mother of a bastard, having
been resident with her parents in
one petty sessional division, went
to lodge at D. in another division
for the purpose of affiliating her
child, D. bemg nearer and more
convenient for her than the place
where the magistrates acting for
the other division met. She lodged
at D. three weeks before she ob-
tained the summons, having in the
interval made one unsuccessful ap-
plication ; and after obtaining the
order went into service in the divis-
ion in which her parents resided,
but without returning to them; and
she stated that she could not go
back to thenpi as they had nothing
for her to do. Whilst at D. she
had no other home: — ^Held, that
the jury was warranted in finding
that at the time of her application
to the magistrates at D. she was re-
siding within that petty sessional
division; that consequently the
magistrates had jurisdiction, and a
conviction for perjury committed
by her on that occasion was right.
Reg. V. Hughes, 7 Cox, C. C. 286 ;
Dears. & B. C. C. 188.
After the expiration of his term
of apprenticeship, an apprentice sum-
moned his master before a magis-
trate for neglecting to pay his wages,
and upon the hearing of the com-
plaint under 4 Geo. 4, c. 34, s. 2, the
apprentice gave false evidence: —
Held, that whether the 4 Geo. 4, c.
34, s. 2, required or not the com-
plaint to be made before the expir-
ation of the apprenticeship, the mag-
istrate having general jurisdiction
over the subject of complaint, per-
jury could be assigned on the mlse
evidence given beiore him. Reg, v.
Prmid, 16 L. T., N. S. 364 ; 10 Cox,
C. C. 455 ; 1 L. R., C. C. 71 ; 36
L. J., M. C, 62 ; 15 W. R. 796.
4. Before Swrrogate^,
The taking of a false oath before
a surrogate, to procure a marriage
licence, will not support a m^seco-
tion for perjury. Rex v. Foit^,
R. & R. C. C. 459.
If an indictment for taioDg a
&lse oath before a surrogate, to
procure* a marriage licence, only
charges the taking of false oath,
without stating it was for the pm^
pose of procunng a licence, or that
a licence was procured thereby, the
party cannot be punished thereon
as for a misdemeanor. lb,
A. was indicted for making a
false oath before a surrogate, for
the purpose of obtaining a marriage
licence : — ^Held, first, uiat a sarro-
gate has a general power to ad-
minister an oath in tnat b^alf, so
as to make a false oath a nusde-
meaner. Reg, v. Chapman, 1 D^
C. C. 432 ; t. & M. 90; 2 C. &K
846; 13 Jur. 885; 18L.J.,JLa
152.
Held, secondly, that such frlse
oath is a misdemeanor, as bdng
made with a fraudulent intention,
in a matter of public concern. lb.
Held, thirdly, that it was imma-
terial whether the marriage acta-
ally took place or not. Jb,
An illegitimate child h&Dg fiUos
nullius, an indictment charging a
defendant with taking a false oath
before a surrogate, and that K was
the natural and lawful father of K
£., and that his consent was neces-
sary as such father, under 4 Geo. 4,
c. 76, cannot be sustained. Reg, t.
Fairlie, 9 Cox, C. C. 209— Gniney,
Recorder.
5. Before Arbitrators,
Where perjury is assigned upon
evidence given before an arbitrator,
upon a reference at Ni» Prius, of a
cause and all matters in difTereoce
between the parties, it must be dis-
tinctly shewn whether the evidence
was material in respect of the mat-
ters in issue in the cause, or of the
other matters in diffeieDce between
INDICTMENT AND INFORMATION.
408
the partieB. Seg. v. JBall, 6 Cox,
C. C. 860.
A, a defendant in a suit tried
before a county oonrt jnd^e, gave
&]8e evidence before an arbitrator,
to whom the suit was referred, and
by whom A. was sworn : — Held,
before 14 & 15 Vict. c. 99, s. 16,
that under 9 & 10 Vict. c. 95, s. 77,
the arbitrator had no authority to
Idminister an oath, and therefore
A was not liable to be indicted for
perjury. Beg. v. Sallett, 2 Den.
C. C. 287 ; f. & M. 563 ; 15 Jur.
483; 20 L. J., M. C. 197 ; 5 Cox,
C. C. 238.
A cause was referred by a judge's
order to C. D. ; and by the order it
was directed that the witnesses
should be sworn before a judge,
"or before a commis^oner duly
authorized." A witness was sworn
before a commissioner for taking
affidavits, and examined yiv& voce
by the arbitrator: — Held, that a
witness so sworn was not indictable
for perjury. Hex v. jHanks, 3 C.
ftP.419— Gaselee.
«
6. Indictment and Information.
Jbrm.]— The 23 Geo. 2, c. 11,
provides for the more easy fram-
ing of indictments for perjury ;
and by. 14 & 15 Vict. c. 100, s.
20, in every indictment for per-
jury, or for unlawfully, wilfully,
&lsely, fraudidently, deceitfully,
maliciously, or corruptly taking,
making, signing, or subscribing
any oath, affirmation, declaration,
affidavit, deposition, bill, answer,
notice, certiiicate, or other writ-
ing, it shall be sufficient to set
forth the substance of the offence
charged upon the defendant, and
by what court, or before whom
the oath, affirmation, declaration,
affidavit, deposition, bill, answer,
notice, certificate, or other writ-
ing was taken, made, signed, or
subscribed, without setting forth
the bill, answer, information, in-
dictment, declaration, or any part
of any proceeding, either in law
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or in equity, and without setting
forth the commission or authority
of the court, or person before
whom such offence was commit-
ted.**
By s. 21, "in every indictment
for subornation of perjury, or for
comipt bargaining or contracting
with any person to commit wilfm
and corrupt perjury, or for incit-
ing, causing, or procuring any
person unlawfully, wilfully, false-
ly, fraudulently, deceitfully, ma-
liciously or corruptly to take,
make, sign, or subscribe any oath,
affirmation, declaration, affidavit,
deposition, bill, answer, notice,
certificate or other writing, it
shall be sufficient whenever such
perjuiy, or other offence afore-
said, shall have been actually
committed, to allege the offence
of the person who actually com-
mitted such perjury or other of-
fence in the manner hereinbefore
mentioned, and then to allege that
the defendant unlawfully, wilful-
ly, and corruptly did cause and
procure the said person the said
offence, in manner and form afore-
said, to do and commit ; and
whenever such perjury, or other
offence aforesaid, shall not have
been actually committed, it shall
be sufficient to set forth the sub-
stance of the offence charged upon
the defendant, without settmg
forth or averring any of the mat-
ters or things rendered unneces-
sary to be set forth or averred in
the' case of wilful and corrupt
perjury."
By s. 30, " indictment includes
information."
Allegations,] — ^In an indictment
for perjury committed at an ad-
miralty session, where the commis-
sion was directed to A., B. and C,
and others not named, of whom A.,
B. and C. were amonsst others to
be one; the court wiU take it to
mean, that, if either of the 'persons
named of tiie quorum was present,
404
PERJURY.
it would be sufficient. Hex v. Dow-
lin, 5 T. R. 311 ; S. C. (at Nisi
Prius),Peake, 170.
Stating that at such a court (a
court of admiralty session), K. was
in due form of law tried upon a
certain indictment then and there
depending against him for murder,
and that at and upon the trial it
then and there became and was
made a material question, whether,
<&c., are sufficient averments that
the perjury was committed on the
trial of K. for the murder, and that
the question on which the perjury
was assigned was material on that
trial. Tb,
it is not necessary to set forth so
much of the proceedings of the
former trial as will show the ma-
teriality of the question on which
the perjury is assigned ; it is suffi-
cient to allege generally that the
particular question became mate-
rial, lb.
In an indictment for perjury, the
necessity for shewing distinctly that
the false oath is in a judicial pro-
ceeding is not dispensed with by 23
Geo. 2, c. 11, 8. 1. Overton v. lieg.
(in error), 4 Q. B. 83 ; 3 G. & D.
133; 7 Jur. 196; 12 L. J., M. G.
61.
An indictment averring that " in
the White-chapel County Court of
Middlesex, holden before J. M.,
judge of the court, an action, then
pending in the court, came on to be
tried, that the defendant was sworn
as a witness before J. M., being
judge of the said county court,
and, having sufficient and compe-
tent authority to administer the
said oath **; and then perjury was
assigned, sufficiently shews on the
face of the indictment that the
court was properly constituted un-
der 9 & 10 Vict. c. 95, and that
the judge had jurisdiction over the
cause in which the peijury was al-
leged to have been committed. Za-
vey V. Meg, (in error), 17 Q. B.
496; 2 Den. C. C. 504; 16 Jur.
36 ; 21 L. J., M. C. 10 ; 5 Cox, C.
C. 259— Exch. Cham.; S. P., Beg,
V. La'idor^ 6 Cox, C. C. 187.
Where, to give magistrates juris-
diction to hear a case pumshable od
summary conviction, it is essential
that they should have an infomuu
tion on oath made before them, it
is not sufficient in an indictment
for perjury, alleged to have been
committed on the hearing of snch
information, to allege that befbr^
M. G., esq., and T. H. H. clerk, two
of the justices, <&;c., the magistrates
who heard the case, J. O. came and
exhibited a certain information up-
on oath, because it does not suffi-
ciently show that J. O. was swora
before M. G. and T. H. H. %.
V. GoodfeUow^ Car. & M. 569—
Patteson.
An averment, that it became and
was material to ascertain the truth
of the matter hereinafter alleged
to have been sworn to, and stated
by J. G. upon his oath, is not a
good averment of materiality. Ih.
An indictment contained four
counts, each of which stated, that
for the defendant on kis retainer V.
had done business as attorney ; that
V. delivered his bill, and alter the
expiration of one month from such
delivery took out a summons before
a judge, under 6 ^fc 7 Vict c 73,
to shew cause why the bill should
not be referred for taxation; t^t
it then and there became and was
material in shewing cause to ascer-
tain whether the defendant did re-
tain v.; and that he, before diet-
ing cause, made an affidavit, deny-
ing that he had retained Y., and
assigned perjury on such affidavit
Each of the counts^ concluded,
" and so the jurors aforesaid did
say, that the defendant did commit
perjury." The record stated the
writ of venire to try whether the
defendant " be guilty of the pajuiy
and misdemeanor aforesaid," and
the verdict, that " he is guilty of
the perjury and misdemeanor aford-
said," and a general judgment
thereon :— Held, first, that as the
INDICTMENT AND INFORMATION.
405
coimt5 all referred tx> the statute,
the word " month '* was to be con-
straed accoiding to the interpreta-
laon clause, and meant calendar
month. MyaUs v. Reg. (in error),
11 Q. B. 781 ; 18 Jur. 259 ; 18 L.
J., M. C. 69 ; 8 Cox, C. C. 254—
Exch. Cham., ailirming the judg-
ment of the Q. B.: 8. C, 12 Jur.
458 ; 17 L. J., M. C. 98.
Held, secondly, that the jurisdic-
tion was sufficiently shewn on the
indictment, without negativing a
prior application to have the costs
taxed by the party chargeable, in
which case only the act authorizes
an application to the judge by the
attorney. lb.
Held, thirdly, that the fact of the
retainer by the defendant was a
material ingredient in the inquiry,
and was sufficiently averred. lb.
Held, fourthly, that the aver-
ment at the conclusion of each
count was immaterial, and might
be struck out as surplusage. lb.
Held, fifthly, that the word
'misdemeanor'* was nomen col-
lectivum; and that, therefore, the
venire and verdict applied to all
the counts; and the judgment, be-
ing for imprisonment only, was di-
visible, lo.
An indictment which charges that
the prisoner " feloniously, corrupt-
ly, knowingly, wilfully, and mali-
ciously swore," omitting the word
" falsely," but concluding, " and so
the defendant in manner and form
aforesaid did commit wilful and
corrupt peijury," is bad. JReg. v.
ftrfcy, 3 C. & K. 317— Cresswell.
An indictment alleged that a pe-
tition was presented to the House
of Commons against the return of
B., on the ground of bribery ; that,
shortly before his election, to wit,
on the 6th July, B. and C. went to
the house of the defendant to solicit
his vote ; that, at the time of the
petition, it was a material question
whether at the time when B. and
C. went to the defendant's house, a
certain act of bribery took place ;
that the defendant was a witness
sworn to speak the truth of and
concerning the premises, and he
deposed touching the election and
the matter of the petition, that
shortly before B.'s election, B. and
C. came on a canvassing visit to
the defendant's house, and that the
act of bribery then took place (in-
nuendo), thereby meaning that at
tlie time when B. and C. w^ent to
the defendant's house as aforesaid,
the act of bribery was committed :
— Held, on motion in arrest of
judgment: first, that the allegation
that the defendant deposed " touch-
ing the election," &c., sufficiently
pointed to the matter whereupon
the defendant was sworn as a wit-
ness ; secondly, that the innuendo
did not introduce new matter, as
from the introductory averment it
appeared there was a canvassing
visit on the 6th July, and the depo-
sition of the defendant waa shewn
to refer to that particular time and
no other. JReg. v. Verrier or FeV-
rier, 4 P. & D. 161 ; 12 A. & E.
317.
If an indictment undertakes to
set out continuously the substance
and effisct of what the defendant
swore when examined as a witness,
it is necessary to prove that in sub-
stance and effect he swore the whole
of that which is thus set out, though
the indictment contains several dis-
tinct assignments of perjury. Jtex
V. Zeefe, 2 Camp. 184 — Ellenbor-
ough.
In an indictment there must be
an allegation of time and place,
which are sometimes material, and
necessary to be laid with precision,
and sometimes not. JRex v. Aylett,
1 T. R. 68.
It is sufficiently certain if it is
stated that the defendant was in
due manner swom. JRex v. AT Car-
ther^ Peake, 155 — Kenyon.
An indictment for |>erjury com-
mitted before a magistrate, stating
that the defendant went before the
magistrate and was sworn, and that
406
PERJURY.
he did falsely, <fcc. " Bay, depose,
swear, charge and give the justice
to be informed,*' that he saw the
prosecutor commit bestiality, suffi-
ciently shews that the oath was
taken in a judicial proceeding ; and
it being also stated in the indictment
that it was material '^ to know the
state of the said A. B.'s dress at the
time the offence was so charged to
be committed as aforesaid," is a
sufficient averment of materiality to
allow the prosecutor to shew that
the flap of his trousers was not un-
buttoned (as sworn by the defend-
ant), and that his trousers had no
flap. Reg, v. Grardiner^ 8 C. & P.
737 ; 2 JVi. C. C. 95.
An indictment charging that the
defendant falsely and maliciously
gave false testimony, without aver-
ring that the offence was wilfully or
that it was corruptly committed, is
bad in arrest of judgment. Rex v.
Richards, 7 D. & R. 665; S. a,
nom. Rex v. Stevens, 5 B. & C. 246.
Another count alleging that at
the trial of the prosecutor he was
found guilty by means of the false
and malicious testimony of the de-
fendant in the first count men-
tioned; that, on a rule nisi for a
new trial, the defendant knowingly,
falsely, wilfully and corruptly made
an affidavit that the evidence given
by him at the trial was true, "where-
as it was false in the particulars in
the fii*st count assigned and set
forth," is also bad, for it should
have averred distinctly that the de-
fendant was sworn as a witness, and
de|X)sed to certain facts at the trial,
instead of leaving it to be taken by
intendment. Ih,
An information for peijury,
charging that the defendant, before
a comnuttee of the House of Com-
mons, being duly sworn, " knowing-
ingly and deliberately, and of his
own act and consent, did depose
and swear " to certain facts set forth
in the information ; and that he
afterwards, at^the bar of the House
of Lords, being duly sworn, " know-
ingly, &c., did swear" to certain
facts contradicting what he had pe-
viously sworn before the committee
of the House of Commons ; with a
conclusion, " and so the defendant,
in manner and form aforesaid, did
commit wilful and corrupt peijury";
cannot be sustained, and is bad in
arrest of judgment. RexY.Hams,
1 D. <fc R. 578 ; 5 B. & A. 926.
Where, upon an indictment for
perjury, on a trial for felony, it
neither appeared that the matter
sworn was material^ nor was it al-
leged to be so : — Held, that if the
onginal indictment had been eet
out, and the materiality could pl^
ly have been collected, it would
have been sufficient without any
special averment, but that one or
the other was absolutely necessary.
Rex V. Dunn, 1 D. A R 10.
The word " wilful " is not neo^
sary in an indictment for peijury at
common law. Rex v. Oox, 1 Leach,
C. C. 71.
But it is otherwise in an indict-
ment for perjury on 5 EUz. c. 9. It.
An indictment stating that the
defendant swore that a particular
fact occurred on the day on which a
certain memorandum bore date,aDd
at the time of making a certain bill
of exchange, without averring that
they were the same days ; and the
assignment of perjury alleged that
the fact did not occur on the day on
which the memorandum bore date,
is uncertain, and therefore bad.
Reg, V. Burraston, 4 Jur. 697 — Q.
B.
An indictment, in which it is in-
tended to asdgn perjury upon sev-
eral statements in the defendant's
evidence relating to several different
matters, should allege that there
were several material questions, and
certain distinct and se^iarate asagn-
ments of falsehood upon each. Ik
When an indictment alleged thai
R. W. falsely swore that " he was
in the bar of the House of J. B. on
the loth of February last, £rom
between the hours of ax o'clock and
INDICTMENT AND INFORMATION.
407
seven o'clock in the evemng of the
said last-mentioned day, until nine
o'clock in the evening of the said
last-mentioned day, and that he, R.
W., did not then and there play at
any game of cards at all ": — ^Held,
that perjury was not sufficiently as-
signed hy an averment that " the
said R. W. did then and there (to
wit) in the said bar of the said
house and premises of the said J. B.
on the said 1 5th day of February
last, and between the hours of six
o'clock in the evening of the said
last -mentioned dav, and eight
o'clock in the evemng of the said
iast-mentioned day, play at a cer-
tain game of cards." Meg.y. White-
hmue, 3 Cox, C. C. 86— Rolfe.
An indictment alleged that a
cause was pending in a county court,
and that at the hearing it became a
inaterial question whether the plaint-
if in the cause had, in the presence
of the prisoner, signed at the foot of
a bill of account, purporting to be a
bm of account between a firm called
B. & Co. and W., a receipt for pay-
ment of the amount of the bill ; and
that the prisoner falsely swore that
the plaintiff did, on a certain day,
in the presence of the prisoner, sign
the receipt (meaning a receipt at the
foot of the first-mentioned bill of
aoconnt) for the payment of the
amount of the bill. The plaintiff in
the county court had on other occa-
sions signed similar receipts in the
presence of the prisoner : — Held,
that the bill of account was stated
and set forth in the indictment with
sufficient certainty. Reg. v. Weh-
9ter, Bell, O. C. 154 ; 5 Jur., N. S.
604; 28 L. J., M. C. 200 ; 7 W. R.
449; 8 Cox, C. C. 187.
It is not a sufficiently precise al-
l^tion upon which to found an in-
dictment for peijury that the pris-
oner swore that a certain event did
not happen within two fixed dates,
his attention not having been called
to the particular day upon which
the transaction was alleged to have
taken place. Seg, v. Stolady^ 1 F.
& F. 518— Pollock.
An indictment chained that a
petition for protection irom process
was under 5 & 6 Vict. <5. 116, 7 &
8 Vict. c. 96, and 10 & 11 Vict. o.
102 (Insolvent Debtors' Acts), filed
and presented at the county court
of S., at W., by the defendant ; that
he afterwards obtained an order of
protection ; but afterwards, while
the proceedings were pending in the
county court, to wit, at the time of
the filing the petition and schedule,
he came before K., a commissioner
to administer oaths in chancery,
duly appointed and empowered to
act in the matter of the insolvent,
and take the defendant's oath then
and there at the county court, and
within the jurisdiction aforesaid, for
the purpose of making an affidavit,
and verifying his petition on oath,
and was duly sworn before K., and
swore and took his oath that the
affidavit then made was true, K.
having competent power and au-
thority to administer the oath. The
indictment then alleged that certain
matter, was material in the matter
of the insolvency, and that the affi-
davit was false in respect thereof,
the defendant was convicted, and
judgment passed : — Held, that the
jurisdiction of the court sufficiently
appeared, though there was no ex-
press allegation that the defendant
had resided for six calendar months
before the filing of the petition
within the district of the county
court, as required by 11 <fc 12 Vict,
c. 102, s, 6. Walker v. Reg, (in
error), 8 El. & Bl. 439 ; 3 Jur., N.
S. 1259 ; 27 L. J., M. C. 43.
A person was indicted for wilful
and corrupt perjury in making a
false affidavit before a conmiissioner
for taking oaths in the court of
Queen's Bench, for the purpose of
getting a bill of sale filed under the
Bills of Sale Act, 1854:— Held, a
misdemeanor, though not wilful and
408
PERJURY.
corrupt perjury, and that the con-
clusion of an indictment for perjury,
" that so the defendant did commit
wilful and corrupt perjury " might
be rejected as surplusage, ana a
conviction for the misdemeanor was
right upon such an indictment. Reg,
V. Hodgkiss, 3 9 L. J., M. C. 14 ; 1
L.R., C. C. 212 ; 18 W. R. 150 ; 21
L. T., K S. 564.
Materiality of Assignments,'] — It
is not necessary expressly to aver
materiality in any indictment for
perjury. It will be sufficient if ma-
teriality is clearly disclosed by the
facts as stated on the face of the in-
dictment. If materiality is not suf-
ficiently averred, or apparent, the
defect is not cured bv 14 & 15
Vict. c. 100, s. 20. Nor is it such a
defect as the judge will amend un-
der sec. 25. Reg. v. Harvey^ 8 Cox,
C. C. 99— Byles.
A vaiiance between the form of
oath proved and that stated in the
indictment is immaterial. The cir-
cumstance that the statement may
probably influence the person to de-
cide will not make it material, if
not legally material, to the matter
under consideration. The question
of materiality is for the judge.
Reg. V. Southwood, 1 F. & F. 356
— Watson.
An indictment for perjury al-
leged as committed on the trial of
an issue in a cause, with averments
of materiality to such issue, is sus-
tained, although it appears that
there were several issues in the
cause. Reg. v. Smithy 1 F. ^fc F.
98— Erie.
On an assignment of perjury by
a defendant in a bastardy case, that
he had never kissed the prosecutrix,
the question of materiality is for the
jury. Reg. v. Goddard, 2 F. & F.
361— Wightman.
An indictment stated that it be-
came a material question, whether,
on the occasion of a certain alleged
arrest, L. touched K.; and the de-
fendant's evidence as set out was: —
L. put his arms round him and em-
braced him ; innuendo that L had,
on the occasion to which the said
evidence applied, touched the per-
son of K.:— Held, that the mater-
iality of the evidence did not saffi.
ciently appear. Rex v. NiehoU, I
B. & Ad, 21.
It is not a sufficiently precise al-
legation upon which to found an in-
dictment for peijury that the pris-
oner swore that a certain event did
not happen within two fixed dates,
his attention not having been called
to the particular day upon which
the transaction was alleged to have
taken place. Reg. v. Stolady^ 1 F.
& F. 518— Pollock.
An indictment alleging that (ne
E. S. had filed a biU in chanoery
against the defendant J. C. ana
others, wherein he prayed that the
defendant J. C. might answer the
premises; that a purchase by J. C.
of certain property belonging to the
other defendants might be declared
fraudulent and void ; and that it
then and there became a material
question whether the said J. C. did
advise the said other defendants
that the said property should be
sold ; and that the said J. C. fiilsely
and corruptly swore, and in and by
his answer denied, that he had so
advised, is bad in arrest of judg-
ment, for want of a sufficient aver-
ment of materiality. Reg. V. CttiU^
4 Cox, C. C. 435— Q. B.
A., in an affidavit, stated that he
had paid all the debts proved under
his bankruptcy, except two, as to
which he explained. On an indicU
ment for perjury on this affidavit,
one of the assignments of peijoiy
was, that A. had not paid all the
debts proved under his bankruptcy,
except two ; and another, that cer-
tain creditors, naming them, besides
the excepted two, were not paid in
full :— Held, that if the first asMgn-
ment was too general, the defend-
ant should have demurred to it:
and that, although by the geneialitr
of its form the prosecutor was not
INDICTMENT AND INFORMATION.
409
preclnded from proving the non-
payment of other creditors besides
thoee named, yet, as names were
stated in the other assignment, it
was reasonable to presume that the
defendant would suppose that they
were the persons, the non-payment
of whose debts was to be relied on ;
and that in fairness the prosecutor
ought not to go into evidence of the
non-payment of any other creditors
than those named. Reg. v. Parker^
Car.& M.639— Tmdal.
An indictment stated that L.
stood charged by F. W., before T.
8., clerk, a justice of the peace,
with having committed a trespass,
by entering and being in the day-
tone on land in pursuit of game, on
the 12th August, 1843 ; and that
T. S. procee^d to the hearing of
the charge ; and that, upon the
hearing of the charge, the defend-
ant falsely swore that he did not see
L during the whole of the 12th
August, meaning that he did not
see L. at all on the 12th day of Aug-
ust, in the year aforesaid ; and that,
at the time he swore as aforesaid, it
was material or necessary for T. S.,
so being such justice, to inquire of,
and be informed by the defendant,
whether he did see L. at all during
the 12th day of August, in the year
aforesaid: — ^Held, that this aver-
ment of materiality was insufficient,
because, consistently with this aver-
ment, it might have been material
for T. S, in some other matter, and
not in the matter stated to have
been in issue before him, to have
pat this question and received this
answer. Reg. v. Bartholomew^ 1 C.
& K. 366.
In an indictment it was alleged
to be a material question whether
• or not the prisoner ever got one
Milo Williams to write a letter for
her ; and in the averments, negativ-
ing the truth of what was sworn,
the indictment alleged that, in truth
and fact, the said IsEbltj Ann Bennett
did get the said JVlilo Williams, and
that when, on her cross-examination
at the trial, when the alleged per-
jury was committed, she was asked
whether she had ever got a Mr.
Milo Williams (who was then point-
ed out to her in court) to write a
letter for her : — Held, that the aver-
ments were sufficient, without any
allegation connecting the "one Milo
Williams " named in the allegations
of materiality, and the averments
negativing the truth of what was
sworn, with the "Mr. Milo Wil-
liams'' named in the subsequent
part of the indictment. Reg. v.
Bennett, 3 C. & K. 124 ; 2 Den. C.
C. 241 ; T. & M. 567 ; 15 Jur. 497 ;
20 L. J., M. C. 217 ; 5 Cox, C. C.
207.
In an indictment for perjury, an
express averment that a question
was material lets in evidence to
prove that it was so. lb.
In an indictment, the assignment
was that the defendant upon nis oath
did swear " that he then thought
that the words written in red mk
were not his writing, and that he
had not in the presence of W. D.
written the words so written in red
ink, whereas in truth and in fact
the words so written in red ink
were the defendant's writing, and
whereas also, in truth and in fact,
he then and there, when he so de-
posed as aforesaid, thought that the
words so written in red ink as afore-
said were his writing" : — ^Held, that
perjury might be assigned upon the
deposition of the defendant. Reg.
V. Schleeinger, 10 Q. B. 670; 12
Jur. 283; 17 L. J., M. C. 29 ; 2
Cox, C. C. 200.
Held, also, that the materiality of
the allegation that the defendant
wrote the words in the presence of
W. D. being averred, the court
would not inquire into it lb.
On an indictment for perjury al-
leged to have been comnutted in
answer to a certain interrogatory
exhibited in a suit in the Ecclesias-
tical Court, it appeared that a suit
for divorce, on the ground of adul-
tery, had been instituted against the
410
PERJURY.
prosecutor by his wife ; that the de-
fendant was a witness examined on
behalf of the wife to prove her case ;
that cross interrogatories were ex-
hibited to him by the prosecutor by
way of cross-examination, one of
which, put for the purpose of im-
peaching his character, was the fol-
lowing : — " Have you not passed by
the name of Abbott, ana also of
Johnson?" His answer was, "I
have never passed by the assumed
name of Abbott or Johnson." It
was clearly proved that he had : —
Held, that the question and answer
were not sufficiently material to the
issue to warrant the case going to
the jury. Reg. v. Worley^ 3 Cox,
C. C. 535 — Denman.
At the trial of an action of trover
by P.. against the prisoner for some
steel, the defence was that P., while
the steel was lying at a railway sta-
tion, sent for it, and signed a deliv-
ery note on receiving it, and then
sold it to the prisoner. The prison-
er, a witness, swore that the name,
P., on the delivery note, was P.'s
writing, and that he saw him write
it. The prisoner was indicted for per-
jury upon this evidence and found
guilty : — Held, that the signature to
the delivery note was material evi-
dence in the action, upon which perju-
ry could be assigned. Meg. v. Naylor^
17 L. T., N. S. 582 ; 16 W. R. 374 ;
11 Cox, C. C. 13— C. C. R.
Upon the trial of C. for perjury,
committed in an affidavit^ proof was
given that the signature to the affi-
davit was in his handwriting, and
there was no other proof that he
was the person who made the affi-
davit. The prisoner was then call-
ed, and swore that the affidavit was
used before the taxing master, that
C. was then present, and that it was
publicly mentioned, so that every-
body present must have heard it,
that the affidavit was C.'s : — Held,
that the matters sworn were mate-
rial upon the trial of C. Reg, v.
Ahop, 17 W. R. 621 ; 11 Cox, C.
C. 264 ; 20 L. T., N. S. 403-^. C.
R.
S. was indicted for robbery <n
April 13, at 8.45 p-m., and the pris-
oner swore that S. was in a hooBe
at a distant place at that time, and
that S. had lodged at that house
nearly two years, and had never
been away for more than two or
three nights at a time during that
period. Tlie prisoner was indicted
for perjury on that evidence, and
convicted on the assignments of per-
jury, as to S. having lodged at the
house for two years, and never hav-
ing b^n away more than two or
three nights at a time : — Held, that
the evidence on these points was
material, as tending to induce the
jury to give greater credit to the
substantial fact of his being there
on the 13th of April at the time in
question. Heg, v, Tyson, 17 L. T.,
N. S. 292 ; 1 L. R, C. C. 107; 87
L. J., M. C. 7 ; 16 W. R. 317 ; 11
Cox, C. C. 1.
An indictment for peijury was
held to be bad for immateriality.
m
The charge being for assault, the
assignment of perjury not being rel-
evant to the charge and affording
no grounds of l^al justiiicatlcD,
was therefore not legally material
Reg. V. Tate^ 12 Cox, C. C. 7.
7. Amendment of Variimces.
If materiality is not sufficieDtly
averred, or apparent, the defect u
not cured by 14 & 15 Vict c. 100,
s. 20. Nor is it such a defect as
the judge will amend under s. 25.
Reg. v. Harvey, 8 Cox, C. C. 99—
Byles.
The judge at the trial of &n in-
dictment lor perjury has power to
amend an inaccurate description of
the time of passing a statute refer- •
red to in the indictment Reg. t.
WeOley, 5 Jur., N. S. 1362 ; Bell,
C. C. 193 ; 29 L. J., M. C. 35.
Where the title of an act of parlia-
ment is not accurately stated, bal
still BO stated as to enable the judg-
EVIDENCR
411
es to kBow that there can be but
one act referred to, such misstate-
ment is immaterial. Ih,
On a charge of perjury alleged to
bave been committed before com-
nussioners to examine witnesses in
a Chancery suit, the indictment
stated that the four commissioners
were commanded to examine the
witnesses. Their commission was
put in, and by it the commission-
ers, or any three or two of them,
were commanded to examine the
witnesses : — Held, a fatal vaiiance,
and the judge would not allow it
to be amended under 9 Geo. 4, c.
15. Reg, v. HewinSy 9 C. & P.
786 — Coleridge.
An indictment for perjury, alleg-
ed to have been committed on the
trial of S. S., averred that the trial
took place at the Assizes and Gen-
eral Sessions of the Delivery of the
Gaol of our Lady the Queen for the
county of S., before John Lord
Campbell, C. J., of our Lady the
Queen, assigned to hold pleas be-
fore the Queen herself, and Sir E.
V. Williams, Knt., one of the jus-
tices of our Lady the Queen, of her
Court of Common Pleas, assigned
to deliver the gaol of the prisoners
therein being. It being objected
that this was a defective description,
as alleging a court with an impos-
sible combination of civil and crim-
inah jarisdiction : — Held, that the
word " assizes" might be struck.out
as surplusage. JKeg, v. Child^ 5
Cox, C. C. 197.
It being also objected that the
words " assigned to deliver the gaol
of the prisoners therein being," re-
ferred only to the last-named judge :
— ^Held , that the indictment might be
amended by the record of the con-
* viction of S. S., by inserting after
the words " Conmion Pleas, and
others their fellows, justices," as-
signed to deliver the gaol. Ih,
The record of the conviction of
S. S. described the court as a gen-
eral session of oyer and tenmner
and gaol delivery. It also describ-
ed the charge against S. S. as for
cutting and wounding ; the indict-
ment aescribing it as for wounding :
— ^Held, that these variances might
also be amended. Tb,
In an indictment for perjury, the
perjuror was alleged to have been
committed on the trial of an indict-
ment against B., for setting fire to
a certain bam of P. In support of
the averment, a certificate of the
trial and conviction of B. was pro-
duced, but the ofience there men-
tioned was setting fire to " one stack
of barley." The ofience was, in
fact, the same, the barn and the
stack having been destroyed by one
fire: — Held, that the indictment
might be amended under 14 <$b 15
Vict. c. 100, s. 1. Reg, v. NieviUe,
6 Cox, C. C. 69— Williams.
8. Mndence,
In perjury committed in an an-
swer m Chancery, it is sufficient
proof of the fact of swearing and the
identity of the defendant, to prove
the handwriting subscribed to the
answer, and that the jurat was sub-
scribed by the master as being
sworn before him. JRex v. MorriSy
1 Leach, C. C. 60 ; S. P., Rex v.
Benson^ 2 Camp. 508 ; Rex v. Mor-
m, 2Bun-. 1189.
On an indictment for perjury, in
an answer to a bill in Chancery, the
proving the handwriting of the sig-
nature of the person who adminis-
tered the oath, is sufficient proof
that it was sworn ; and if the place
at which such answer purported to
have been sworn is in the jurat, it
is sufficient evidence that the oath
was administered at that place.
Rex V. Spencer, 1 C. & P. 260 ; R.
& M. 97— Abbott.
If the perjury is committed at the
trial of a cause, the prosecutor must
prove the whole of the defendant's
testimony. Rex v. JoneSy Peake,
37 — ^Kenyon.
Unless the point upon which the
412
PERJURY.
perjury is assigned arose upon the
defendant's cross-examination. Jtex
V. Dowlin^ Peake, 170.
In an indictment for perjury com-
mitted on the trial of a cause, it is
sufficient for the prosecutor to prove
all the evidence given by the de-
fendant, referable to the fact on
which perjury is assigned. Rex v.
Rowley, R, & M. 299— Littledale.
An affidavit purporting to be
sworn before a public commissioner
is admissible on the trial of an in-
dictment for perjury without proof
of the conmiission; proof of the
commissioner's acting as such is
sufficient. Rex v. Hmoard, 1 M. &
Rob. 187 ; S. P., Rex v. Verdst, 3
Camp. 432.
To shew that perjury was wilful
and corrupt, evidence may be given
of expressions of malice used by the
party towards the person against
whom he gave the false evidence.
Rex V. Munton, 3 C. & P. 498—
Tenterden.
If A, is indicted for perjury, in
swearing that he did not enter into
a verbal agreement with B. and C.
for them to become joint dealers and
co-partners in the trade or business
of druggists ; and it appears that,
in fact, B. was a druggist, keeping
a shop with which A. liad nothing
to do ; but that A. and C, being
sworn brokers, could not trade, and
therefore made speculations in drugs
in B.'s name with his consent, he
agreeing to divide profits and loss-
es with A. & C. ; this will not sup-
port the indictment, as this is not
the sort of partnership denied by A.
upon oath. Rex v. Tuqker^ 2 C. &
P. 600— Abbott.
Where perjury is assigned upon a
written instrument, subsequentljr
lost, secondary evidence is admissi-
ble. Reg. V. Milnes, 2 F. A F. 10
—Hill.
On the trial of an indictment for
perjury, alleged to have been com-
mitted on the trial of an indictment
for an assault, all the evidence that
was admissible on the trial of the in-
dictment for the assault is admissible
on the trial of the indictment for per-
jury. Reff, V. BarrUony 9 Cox, C.
C. 503— BramwelL
Proof that the defendant vas
'^ sworn and examined as a witness,''
supports an averment that he was
sworn on the Holy Grospel, that be--
ing the ordinary mode of swearing.
Rex V. Rawl^, R. <& M. 299— lit-
tledale. But see Rex v, IfCarther,
Peake, 155.
If an indictment contains seveial
assignments of perjury, on one of
which no evidence is given on the
part of the prosecution, the defend-
ant cannot go into proof to shew
that the evidence charged by that
assignment of perjury to be false,
was in reality true. Rex v. Een^,
5 C. <fc P. 468— Denman.
On the trial of an indictment for
peijury the witnesses to character
were asked, " What is the charac-
ter of the defendant for veracity and
honour?" — and " Do you consider
him a man likely to commit perjn-
ry?" lb.
A person in his deposition before
a magistrate deposel to several ma-
terial facts in a case of larc^y.
When called as a witness at the
quarter sessions on the trial of the
larceny, he contradicted every state-
ment he had made before the magis-
trate. In an indictment for perjury,
his evidence on the trial at thequarter
sessions was charged to be false :—
Held, that the deposition before the
magistrate was not, hj itself, suffi-
cient proof that the evidence on the
trial at the quarter sessions was
false, but that other confirmatory
evidence must be given, to satisfy
the jury that the statemrats made
by the partv at the quarter sessioiis
were, in pomt of fact, felse, or that
the statements in the depoaUon
were, in point of feet, true. Reg. v.
Wheatland, 8 C. & P. 238— Guniey.
In an indictment, the supposed
perjury arose upon evidence given
in reply to the testimony of one of
l^e defendants on the former trial,
EVIDENCE.
413
who was acquitted and examined
as a witness. The indictment did
not state his acquittal, nor did the
minute of the verdict shew it : —
Held, that this was immaterial, pa-
rol evidence being given that he
was in fact examined. Rex v.
Browne, 3 C. <fc P. 672 ; M. & M.
315.
Declarations in articulo mortis
are not admissible in evidence on
the trial of an indictment for perju-
ry. Rez V. Mead, 4 D. <jb R. 120 ;
2 B. & C. 605.
In a case of peijury, on a charge
of bestiality, the ddfendant swore
that he saw the prosecutor commit-
tiog the offence, and saw the flap
of his trowsers unbuttoned. To
disprove this, the prosecutor depos-
ed that he did not commit the of-
fence, and that his trousers had no
flap ; and, to confirm him, his broth-
er proved, that, at the time in ques-
tion, the prosecutor was not out of
his presence for more than three
minutes, and his trousers had no
flap : — ^Held, to be sufficient corrob-
orative evidence to go to the jury.
Reg, V. Gardiner, 8 C. & P. 737—
Patteson.
An assignment of perjury, that
the prosecutor did not, at the time
and place sworn to, or at any other
time or place, commit bestiality
with a donkey (as sworn to) or with
any other animal whatsoever, is suf-
ficiently proved by the evidence
of two witnesses falsifying the depo-
sition which had been sworn to by
the defendant Ih,
On the trial of an indictment for
perjury on the crown side of the as-
sizes, where it appeared that the at-
tomies on both sides had agreed
that the formal proofs should be
dispensed with, and that part of the
prosecutor's case should be admit-
ted, the judge would not allow this
admission. Meg, v. ThomhiUy 8 C.
& P. 675 — Abinger.
A judge will not allow a cnmi-
nal case upon the crown side of the
aeazes to be tried on admissions^ un-
less they are made at the trial by
the defendant or his counsel. lb.
On the trial of an indictment for
perjury, conunitted on the hearing
of an affiliation smnmons, under 7
& 8 Vict. c. 101, s. 2, it was proved
that an information was duly made,
which was put in evidence and read,
and that the putative father appear-
at the petty sessions, and that upon
the hearing of the information the
perjury assigned was committed.
The summons was not produced,
nor service of it proved, but in all
other respects the proceedings on
the hearing of the ii^ormation were
proved and appeared to have been
regular : — ^Held, that it was not nec-
essary that the summons should
have been produced to sustain a
conviction for perjury on the above
evidence. Beg. v. Smith, 17 L. T.,
K S. 263; 1 L. R, C. C. 110; 37
L. J., M. C. 6 ; 16 W. R. 140 ; 11
Cox, C. C. 10.
On the trial of an indictment for
peijury, it should be proved distinct-
ly what the charge was on the hear-
ing of which the false evidence was
given. Reg. v. Carr, 10 Cox, C. C.
564 ; 16 W. R. 137 ; 17 L. T., K
S. 217— C. C. R.
B. was indicted for perjury com-
mitted in an affidavit, alleged to
have been made by him in order to
ol^tain a marriage licence. The ev-
idence shewed that some person
went to the vicar-general's office,
and gave certain instructions, in ac-
cordance with which an affidavit
was filled up by one of the clerks,
which, after having been read over
to the applicant, was signed by him.
B.'s father proved that the signature
to the affidavit was in his son's
handwriting. The custom of the
vicar-general's office was for the
clerk who filled up the affidavit to
go with the applicant, and get him
to swear to it before a surrogate.
Neither the clerk in the vicar-gen-
eral's office, nor the surrogate, could
identify B. as having sworn to the
affidavit, and, although the clergy-
414
PERJURY.
man who married B. recognized
him as being the person who was
married under the licence granted
on the strength of the affidavit
signed by him, yet he did not re-
ceive it from him on the day of the
marriage, but he received it on the
previous day from the verger of his
church: — Held, that further proof
of the identity of the person who
swore to the affidavit with the per-
son who signed it was necessary be-
fore B. could be convicted of perju-
ry assigned on a false statement
contained in it. Reg. v. Barnes^
10 Cox, C. C. 539— Russell Gumey.
A solicitor was indicted for perju-
ry in having sworn that there was
no draft of a certain statutory dec-
laration made by a client. No no-
tice to produce tlie draft had been
given to the solicitor, and upon his
trial it was proved to have been
last seen in his possession. Second-
ary evidence having been given of
its contents: — ^Held, that, in the
absence of such notice, secondary
evidence was inadmissible. Reg, v.
Mworthg, I L. R., C. C. 103 ; 37 L.
J., M. C. 3 ; 17 L. T., N. S. 298 ;
16 W. R. 207 ; 10 Cox, C. C. 579.
9. ProofbyJudge^s Notes of Evidence.
In support of an indictment for
perjury, committed on the trial of
a plaint in a county court, it is not
necessary to produce the judge's
notes, if proof of the perjury can be
established by witnesses who were
present at the trial. Reg, v. Jfor-
gan, 6 Cox, C. C. 107— -Martin.
The notes of evidence taken by a
judge on a trial are not admissible
m evidence to prove what was said
on that trial. When, therefore, on
a trial for perjury, alleged to have
been committed by the defendant
as a witness on a trial for felony be^
fore a Queen's counsel assisting the
judges, and his notes of the evi-
dtoce given on that occasion were
tendered (on proof of his handwrit-
ing) :-*Held, that such notes were
not admisfdble. Reg, v. C%tZ(£, 5
Cox, C. C. 197— TaUbuid.
10. Proof of Particular Averments,
An allegation in an indictment
for perjury, that the defendant
made his warrant of attorney directed
to R. W. knd F. B., " then and sUS
being attomies" of K. B., is proved
by putting in the warrant of attor-
ney. Rex V. Oooke, 7 C. ifc P. 559
— ^Fatteson.
If, in an indictment for peijory
against C. D., it is averred that k
cause was depending between A.
B. and C. D., a notice of set-off in-
titled in a cause A, B. v. C, D,^
and signed by the attorney of CD.,
is not sufficient evidence to snnpoit
the allegation. Rex v. Stovdi, 6
C. & P. 489— Denman.
In an indictment for perjury com-
mitted on the trial of a rormer cause,
the postea alone is sufficient eri-
dence to prove that there was a
trial, without shewing a copy of
the final judgment. ^no».. Bull. N.
P. 243.
An allegation in an indictmat
for perjury, that judgment was en-
tered up in an action, is proved by
the production of the book from
the judgment office in which the
incipitur is entered. Reg, v. Gor-
dan. Car & M. 410 — ^Denman.
An indictment, tried before the
Lord Chief Justice at Westminster,
charged the perjury to have been
committed on a trial at nisi prios,
although at the King's Bench sit-
tings at Westminster. The prose-
cutor, to prove the trial at nisi pnos,
put in the nisi prius record with the
minute of the verdict indorsed on it
by the associate. There was no postet
drawn up, and the associate stated
that none would be drawn up, as a *
rule for a new trial was peudiiu^ :—
Held, to be sufficient proof of the
trial at nisi prius. Rex v. Browne,
3 C. & P. 572 ; M. A M. 315.
A defendant was indicted for per-
jury alleged to have been commit-
PROOF OF PARTICULAR AVERMENTS.
415
ted by him on the hearing before
justices of a summons charging him
with being the father of an iuegit-
imate child : — Held, that, to support
the indictment, it was necessary to
sive eyidence of the charge made
by the mother, either by production
of the original order made thereon,
or by givmg secondary evidence of
ihie siuhmons after notice to the de-
fendant to produce it ; and that, in
the absence of such notice, it was not
sofficient to produce the minutes of
tiie proceedings by the clerk to the
justices, those minutes being of no
greater authority than the notes of
a short-hand writer. Meg.y.NetoaU^
6 Ck)x, C. C. 21— Wightman.
On the trial of an mdictment for
perjury, alleged to have been com-
mitted before magistrates, on the
hearing of a case punishable on
sonunary conviction, the conviction
by the magistrates is not receivable
in evidence, because it is irrelevant.
Reg, V. GoodfeUow, Car. <fc M. 569
— ratteson. '
In an indictment for perjury be-
fore justices of the peace, there must
be formal proof of the commence-
ment of the proceedings by produc-
tion of the summons, information or
the like. JReg. y. BurreU, 3 F.&F.
271— Martin.
A. was indicted for wilful and
corrupt perjury committed at the
Westminster police court. A sum-
monB was granted upon an informa-
tion, and upon the hearing of the
summons the peijury assigned was
committed. At the trial the in-
fonnation was produced, but not
the summons : — Held, not sufficient ;
the summons should have been pro-
duced. Beg. V. WhyhroWy 8 Cox, C.
C. 438 — ^Russell Gumey, Recorder.
An office copy of a bill in Chan-
cery, which a witness examined
with the original but which office
copy contained abbreviations, such
as ** pnl. este.'' for the words " per-
sonal estate " in the original bill, is
not such an examined copv as will
be evidence to support an allegation
of a bill in Chanceiy on an indict-
ment for perjury, committed in an
affidavit in that suit in Chancery.
Meg. V. Christian, Car. & M. 388—
Denman.
On an indictment for perjury, set-
ting forth, with proper innuendoes,
a copy of a deposition before a mag-
istrate, written in the English lan-
guage, and signed by the defendant,
he may be convicted on proof of a
verbal deposition in the Welsh lan-
guage, of which the written deposi-
tion, signed by him, is the sub-
stance. Beg. V. Thomas, 2 C. <$b K.
806— Williams.
In an indictment for perjury, it
was alleged that A. made his will,
and thereby appointed B. his execu-
tor : the production of the probate
is the proper proof of this allega-
tion ; but if it had been necessary
to prove that A. had devised real
estates, the original will must have
been produced, and one of the at-
testing witnesses called. Beg. v.
Turner, 2 C. & K. 732— Erie.
In an indictment for perjury, it
was averred that a suit was insti-
tuted in the Prerogative Court by C.
against B., to dispute the validity of
a codicil to a will : — Held, that the
production of the original allegations
of both parties in the suit, signed by
their advocates, and proof of their
advocates' signatures, and that they
acted as advocates in that court,
such allegations being produced
from the registrar of the court,
was sufficient proof of the aver-
ment, and that the caveat need
not be produced. lb.
In an indictment for perjury, on
the trial of a cause under a writ of
trial directed to the sheriffs of Lon-
don, the oath is properly alleged to
have been taken before the sheriffs,
though, in fact, the cause was tried
before the secondary. Beg. v. Schles-
inger, 10 Q. B. 670 ; 12 Jur. 283 ; 17
L. J., M. C. 29.
An indictment for peijury alleged
the trial of an issue before E. S.,
esq., sheriff of D., by virtue of a
416
PERJURY.
writ directed to the sheriff; the writ
of trial put in evidence was directed
to the sheriff, and the return was of
a trial before him ; but it was prov-
ed, that, in fact, the trial took place
before a deputy, not the under-sher-
iff:— Held, no variance. Reg. v.
Dunn, 2 M. C. C. 297 ; 1 C. & K.
730.
11. Proof of Indictment,
By 14 & 15 Vict. c. 100, s. 22, " a
certificate containing the substance
and effect only (omitting tlie form-
al part) of the indictment and tri-
al for any felony or misdemeanor,
purporting to be signed by the
clerk of the court or other officer
having the custody of the records
of the court where such indictment
was tried, or by the deputy of such
clerk or other officer (for which
certificate a fee of 6«. 8c?. and no
more shall be demanded or taken) ,
shall upon the trial of any indict-
ment for perjury, or subornation
of perjury, be sufficient evidence
of the trial of such indictment for
felony or misdemeanor, without
proof of the signature or official
character of the person appearing
to have signed the same."
On an indictment for perjury
committed on the hearing of a par-
ish appeal at the quarter sessions,
the production of the sessions book
is not sufficient proof that the ap-
peal came on to be heard ; and a
regular record ought to be made
upon parchment, the same as on a
return to a certiorari, and that re-
cord, or an examined copy, must be
produced.* Hex v. Ward, 6 C. &. P.
see—Park.
An allegation, that " on &c., at
&c., a certaiu indictment was pre-
ferred at the quarter sessions of the
peace then and there holden in and
for the county of W., against the
defendant and one T. E., which in-
dictment was then and there found
a true bill," is not supported by the
production of the original indict-
ment with the words "true bill"
indorsed on it, it being necessaiy
that a regular record sliould be
drawn up and proved, either by
its production or by an examined
copy of it. Porter v. Cooper, 6 C.
<fc P. 354— Patteson.
On the trial of an indictment for
perjury at the Central Criminal
Court, to prove the fact of a former
trial in the same court ; — ^Held, that
the production, by the officers of the
court, of the caption, the indictment,
with the indorsement of the prison-
er's plea, the verdict, and the sen-
tence of the court upon it, together
with the minutes of the trial made
by the officer in court, was sufficient
evidence of it ; and that the prodnc-
tion of neither the record nor a cer-
tificate, under 14 & 15 Vict c. 99,
8. 18, and 14 & 15 Vict. c. 100,8.
22, was necessary. Reg. v. New-
man, 3 C. & K. 240 ; 2 Den. C. C.
390; 16 Jur. Ill; 21 L.J.,M.C.
75 ; 5 Cox, C. C. 547.
12, Witnesses and Corroborative Eb-
idence.
The evidence of one witness is
not sufficient to convict of peijury,
as there would be only one oath
against another. Rex v. Lee, 8
Russ. C. <fc M. 78 ; S. P., Champ-
ney^s case, 2 Lewin, C. C. 258.
But two witnesses are not e»en-
tially necessary to disprove the &ct
sworn to ; for, if any material cir-
cumstance is proved by other wit-
nesses in confirmation of the witness
who gives the direct testimony of
perjury, it may turn the scale and
warrant a conviction. Ih.
And the rule does not apply where
the evidence consists of the contra-
dictory oath of the party accused.
R&6 v. KniU, 5 B. A A. 929, n.
To prove peijury, it is sufficient
if the matter alleged to be fiilsdy
sworn is disproved by one witness,
if, in addition to the evidence of
that witness, there is proof of bo
account, or a letter written by the
WITNESSES, ETC.
417
defendant contradicting his state-
ment on oath. Bex v. Mayhew^ 6
C.&R315— Denman.
On an indictment for perjury, al-
lied to have been committed at
the quarter sessions, the chairman
at the quarter sessions ought not to
he called upon to give evidence as
to what the defendant swore at the
quarter sessions. Reg,\. Gazard^S
C. & P. 595— Patteson.
A., in an affidavit stated that he
had paid all the debts proved under
his bankruptcy, except two, as to
wliich he explained; in support of
an indictment for perjury upon that
affidavit several creditors were call-
ed, who each proved the non-pay-
ment of his own debt : — Held, that
this was not sufficient to warrant a
conviction, and that as to the non-
payment of each debt, it was neces-
sary to have the evidence of two wit-
nesses, or of one witness, and such
corroborative testimony as is equal
to the testimony of a second wit-
ness. Beg. v. Parker, Car. & M. 639
— Tindal.
The rule, that the testimony of a
single witness is not sufficient to
sustain an indictment for perjury, is
not a mere technical rule, but a rule
founded on substantial justice ; and
evidence, confirmatory of that one
witness in some slight particulars
only, is not sufficient to warrant a
conviction. JReg, v. Yates, Car. &
M. 132 ; 5 Jur. 636— Coleridge.
Althougli an assignment of pet-
jury must be proved by two wit-
nesses, it is not necessary to prove
by two witnesses every fact which
goes to make out the assignment of
peijury. Jteg, v. Roberts , 2 C. & K.
607— Patteson.
A., to prove an alibi for B., had
sworn that B. was not out of his
sight between the hours of 8 a.m.
and 9 a.m. on a certain day, and
on this perjury was assigned. Proof
by one witness, that between those
hours A. was at one place on foot,
and by another witness, that be-
tween those hours B. was walking
Pish. Dig.— 31.
at another place six miles off: —
Held, to be sufficient proof of the
assignment of perjury. Ih,
Where perjury was assigned up-
on a statement made by the prison-
er on oath, upon a trial at Nisi Prius,
that in June, 1851, he owed no more
than one quarter's rent to his land-
lord, and the prosecutor swore that
the prisoner owed five quarters'
rent at that date ; and to corrobor-
ate the prosecutor's evidence, a wit-
ness was called, who proved that in
August, 1850, the prisoner had ad-
mitted to him that he then owed his
landlord three or four quarters' rent :
— ^Held, first, that this was not such
corroboration as is necessary to sus-
tain an indictment for perjury. Reg,
V. BouUer, 3 C. & K. 236 ; 2 Den.
C. C. 396 ; 16 Jur. 135 ; 21 L. J.,
M. C. 57 ; 5 Cox, C. C. 543.
Held, secondly, that two wit-
nesses are not essentially necessary
to contradict the oath on which the
peijury is assigned, but that there
must be something more than the
oath of one, to shew that one party
is more to be believed than the oth-
er.
To support an indictment for per-
jury there must be something prov-
ed in the case for the prosecution,
making the oath of the prosecutor
preferable to that of the defendant ;
there need not be two distinct oaths,
as one oath and circumstances may
be sufficient. Tb,
A person may be indicted for per-
jury who gives false evidence before
a grand jury when examined as a
witness before them upon a bill of
indictment ; and another witness on
the same indictment, who is in the
grand jury-room while such person
is under examination, is competent
to prove that such witness swore be-
fore the grand jury, and so is a po-
lice officer, who was stationed with-
in the grand jury-room • door, to
receive the different bills at the
door, and take them to the fore-
man of the grand jury ; these per-
sons not being sworn to secrecy, al-
418
PERJURY.
though the grand jury is so. Reg,
V. IhLghes, 1 C. <fe K. 519— Tindal.
The prisoner was charged with
perjury, for having falsely sworn
before magistrates at petty sessions,
that D. li. was the father of her
illegitimate child. At the trial of
the prisoner the imputed father, D.
R., swore that he never had inter-
course with her. In corroboration
of D. R., a witness was called who
swore that the prisoner had told
witness, at a time when she gen-
erally denied being with child, that
"D. R. had never touched her
clothes " : — ^Held, that, as the nega-
tion was made by the prisoner at a
time when she generally denied be-
ing with child, it was so far a part
of such general denial that, al-
though it could not be altogether
withdrawn from the jury, it was
not a corroboration of D. R.*s tes-
timony, on which alone they could
convict her. Another assignment
of perjury was, that on the same
occasion the prisoner had falsely
sworn that her master, who was
ancle of D. R., had promised her
that he would raise her wages, and
allow her to lie in at his house, if
she would swear the child to a per-
son other than his nephew, D. R. :
— Held, that such statement was
not material to the issue so as to
constitute the crime of perjury.
Reg. V. Owm, 6 Cox, C. C. 1 OS-
Martin.
Although it is not necessary that
the alleg^ perjury should be prov-
ed by two witnesses in contradic-
tion of the prisoner, it is requisite
that the perjury should be proved
by something more than the mere
contradictory oath of the prosecu-
tor. He must be coiToborated by
some independent testimony. . Reg.
v. Brcdthwaite^ 8 Cox, C. C. 254 ; 1
F. & F. 638— Watson.
A party was charged with hav-
ing falsely sworn that certain in-
voices bearing certain dates were
produced by her to C. The only
witness called was C, who swore
that she had not produced those in-
voices, but that she had produced
others of the dates of which he
made a memorandum at the time :
— ^Held, that the memorandum vas
a sufficient corroboration uponwhidi
to convict. Reg. v. Webster, 1 F. A
F. 515 — Cockbum.
The prisoner was convicted of
perj ury . He was a policeman, hav-
mg laid an information against a
publican for keeping open his house
after lawful hours, and swore, on
the hearing, that he knew notiiing
of the matter except what he had
been told, and that " he did not
see any person leave the defendant's
house after eleven " on the night in
question. The perj ury was assigned
on this last allegation, and the evi-
dence to prove its falsehood was,
that the prisoner when laying the
information, said that '^ he had seen
four men leave the house afler
eleven," and that he could swear to
one as W. On two other occasions
the prisoner made a similar state-
ment to two other witnesses; and
W. and others did, in fact, leave
the house after eleven o'clock on
the night in question; that on the
hearing the prisoner acknowledged
that he had offered to smas^ the
case for 30«. ; that he had talked, in
the presence of another witness, of
making the publican give him mon-
ey to settle it ; and he had, in &ci,
offered to the publican to settle it
for 1/., and haa said that he had re-
ceived lOs, to smash the case, and
was to have 10«. more : — ^Held, that
the evidence was sufficient to prore
the perjury assigned, and that the
conviction was right Reg, v. Ifixfk,
Dears. & B. C. C. 606 ; 4 Jur., N.
S. 1026 ; 27 L. J., M. C. 222 ; 8
Cox, C. C. 5.
13. Trial,
It is the practice of the Oentiii
Criminal Court not to try an indi*
ment for perjury arising out of a
civil suit, while that suit is in aaf
way undetermined, except in
ON REGISTRATION OF VOTERS, ETC.
410
where the court in which it is pend-
ing postpones the decision of it in
Older that the criminal charge may
be first disposed of. Rex v. Aih-
iwm, 8 C. & P. 50— Parke. See
PidM V. RvUer, 8 C. & P. 340.
14. Fahe DedarcUioM,
(a) Customs.
Making false declarations in mat-
ters relating to the customs, see 16
& 17 Vict, c. 107, 8. 198, and 18 &
19 Vict. c. 96, s. 38.
(b) On Registratioti of Voters and
at Pcaiiamentary Elections.
By 28 & 29 Vict. c. 36, s. 10,
" persons changing their abodes be-
" fore the last day of July in any
" year, and objected to, may make
"' declarations as to the true place
"of their abodes and qualification,
" for the purpose of being registered
" as voters, and, by s. 11, persons
"falsely signing such declarations,
" will be guilty of a misdemeanor,
"punishable by fine or imprison-
" ment for a term not exceeding one
" year."
An indictment for wilfully mak-
ing a false answer to the third ques-
tion pat to a party tendering his
vote at an election of members of
^rliament, in pursuance of 2 & 3
Will. 4, c. 45, s. 58, had been re-
nwved by certiorari. At the trial,
several objections were taken,
grounded on the omission of proper
tllegations in the indictment: —
Held, that, being on the record,
they should be left to the decision
of the court. Reg, v. Bowler^ Car.
& M. 559 ; 6 Jur. 287— Patteson.
Where an averment states the
words of the affirmative answer,
they must be proved as alleged.
On an indictment under 2 <fe 3
Will. 4, c. 45, B. 58, for giving a
Alse answer at the poll at an elec-
tion of members of parliament for a
horoo^h, it is not essential that the
retonung officer should himself put
the three questions to the voters
under sect. 53, it is sufficient if the
town clerk does it in his presence,
and by his direction; neither is it
necessary to shew that the agent
who required the questions to be
put was expressly appointed by the
candidate ; it is sufficient to shew
that he has acted as agent for the
candidate. Reg, v. /^pcUding, Car.
& M. 568 — Patteson.
The word wilfully, in an indict-
ment on the 2 <fc 3 Will. 4, c. 45, s.
58, for giving a false answer at the
poll, should be construed in the
same way as in an indictment for
perjury, and be supported by the
same sort of evidence. Reg. v.
£ms, Car. & M. 564 ; 6 Jur. 287
— Patteson.
A voter having changed his resi-
dence since the last registration,
cannot be indicted under 2 <& 3
Will. 4, c. 45, for swearing that he
has still the same qualification, if
the sheriff's deputy should omit, at
the time the voter tenders his vote,
to read over to him the specific
Qualification from the register.
Reg, V. Lucy, Car. & M. 511 —
Wightman.
On an indictment against a voter
for making a false declaration as to
his possession of the same qualifica-
tion, under 2 <fc 3 Will. 4, c. 45, s.
58, a copy of the original register,
made accoixiing to s. 55, maybe re-
ceived in evidence ; and it is suffi-
cient if it resembles the original in
respect of the voter's name and de-
scription. Reg, y,Dodsworth, 8 C.
& P. 218 ; 2 Jur. 131— Denman.
The words, " the same qualifica-
tion," mean that the voter must, at
the time of the election, be in pos-
session of the identical qualification
in re§pect of which he was register-
ed. It is not enough if he possesses
pi*emises of a similar description.
Ih.
If a person knew that at the time
of polling he gave a false answer as
to his having the same qualification
as at the time of registration, it
420
PERJURY.
would be 110 defence to an indict-
ment for that oiFence that he acted
under the advice of an electioneer-
ing committee ; but if, possessing
property of equal value with that for
which he was registered, he acted
bond, fide, and under an impression
that he was entitled to vote, he
ought to be acquitted. lb.
Upon an -indictment, in falsely
taking the free-holder's oath at an
election of a knight of the shire in
the name of J. W. ; it appearing by
competent evidence that the free-
holder's oath was administered to a
person who polled on the second
day of the election by the name of
J, W., who swore to his freehold
and place of abode, and that there
was no such person ; and that the
defendant voted on the second day,
and was no freeholder, and some-
time after boasted that he had done
the trick, and was not paid enough
for the job, and was afraid he
should be pulled up for his bad vote ;
and it not appearing that more than
one false vote was given on the sec-
ond day's poll, or that the defend-
ant voted m his own name, or in
any other than the name of J. W. :
— Held, that there was sufficient ev-
idence for the jury to presume that
the defendant voted in the name of
J. W., and consequently to find
him guilty of the charge as alleged
in the indictment. Mex v. Pricey
6 East, 823 ; 2 Smith, 525. And
see Rex v. Leefe^ 2 Camp. 139 ; and
PurceU V. W^Namara^ 9 East, 157.
(c) Corporate,
By 5 & 6 Will. 4, c. 76, s. 34,
" if any person shall wilfully make
" a false answer to any of the ques-
" tions required by this section he
" shall be guilty of a misdemeanor,
" and may be indicted and punished
" accordingly."
An indictment upon the above
section for giving a false answer on
voting for a town councillor, is bad,
if it does not allege that the defend-
ant wilfully gave the false answer.
Reg. V. Bent, 2 C. A K. 179 ; 1
Den. C. C. 157.
Where a count alleged that tiie
prisoner felsely, fraudulently and
deceitfully personated a burgess at
an election of councillors for a
borough : — Held, no offence under
this section or at common law. Ih,
The son of a burgess, of the same
name as his father, livins in the
house in respect of which Ae father
had been qualified, but the fiither
having for some time been absent,
and the son paying the rates, h not
indictable for untruly answering the
questions put to voters upon his vot-
ing. Reg, v. Goodman^ 1 F. A F.
502— Wightman.
(d) Before Magistratei,
An indictment on 5 <& 6 Will. 4,
c. 62, s. 13, for making a false de-
claration before a magistrate, stated,
that, by the rules of a benefit society,
any full free member of it who so*,
tained a loss by an accidental fire
was to be indemnified to the extent
of 15/., on making a declaration be-
fore a ma^strate verifying his low;
and that the defendant was a fuQ
free member of the society, and had
made a false declaration before a
magistrate, that he had sustained a
loss by fire. On the trial, the rules
of the society could not be proved ;
but held, that the allegations in the
indictment respecting the rales
might be rejected as surplusage, as
the offence of the defendant, in mak-
ing the false declaration as to the
fire, would be an offence within the
statute, if no such benefit society
had ever existed. Reg, v. Bopes^
1 C. & K. 65— Erskine.
The 5 & 6 Will. 4, c. 62, s. 18,
which enables magistrates to receive
voluntary declarations instead d
oaths, extends to declarations gen-
erally, and is pot confined to declar-
ations with respect to the confirma-
tion of written instruments or alle-
gations, or proofs ofdebts,orof the
execution of deeds, or other matter
ejusdem generis. lb.
FALSE DECLARATIONS.
421
Where a person is indicted for
having made a false declaration as
to a tire having taken place at his
house, e\'idence may be given, that,
with the declaration, he sent a cer-
titicate, which stated the lire to have
occurred, and that the signatures to
that certificate were all forgeries, as
this evidence may go to shew that
the declaration was wilfully false.
74. ^
An indictment for perjury in
making a false declaration under 5
& 6 Will. 4, c. 62, s. 18, cannot be
snrtained when the deed or written
instrument of which the declaration
is confirmatory is not dul^ proved.
%. v. Cox, 4 F. & F. 42— Byles.
An indictment under 5 <fc 6 Will.
4, c. 62, R. 13, for administering an
extra-judicial oath, is bad, if it does
not so far set out the deposition,
that the court may judge whether
or not it is of the nature contem-
plated by the statute. Reg, v. Noit^
4Q. B. 768 ; 9 Cox, C. C. 301 ; D.
(fcM. 1; 7 Jur. 621; 12 L. J., M.
C. 143.
To prove the making of a false
declaration under the Pawnbroker's
Act (39 & 40 Geo. 3, c. 99), it is
not absolutely necessary to call the
magistrate before whom it was
naade or some one pi-esent at the
time. Reg. v. Browning^ 3 Cox, C.
C. 437.
To prove that such a declaration
is false in fact, it is necessaiy to neg-
ative the defendant's statement by '
the oath of two witnesses in the
same manner, and to the same ex-
tent as on tlie proof of an assign-
ment for perjury. Ih,
A county magistrate complained
to the bishop of the diocese of the
conduct of two of his clergy ; and
to substantiate his charge he swore
witne^^es before himself, as magis-
trate, to the the truth of the facts :
—Held, that the matter before the
bishop was not a judicial proceed-
ing, and therefore that the magis-
trate had brought himself within
the 5 & 6 Will. 4, c. 62, s. 13 ; and
that he had unlawfully administered
voluntary oaths, contrary to the en-
actment of the statute. Reg, v.
Nott, Car. & M. 288 ; D. <fe M. 1 ;
4 Q. B. 768 ; 12 L. J., M. C. 143.
(e) On Registration of Rirths,
Deaths or Marriages,
An indictment, under 6 & 7
Will. 4, c. 86, s. 41, charged, that a
clerg3mian solemnized a marriage
and was about to register in dupli-
cate the particulars relating to the
marriage, and that the prisoner did
wilfully make to the clergyman, for
the purpose of being inserted in the
register of marriage, certain false
statements. The proof was, that the
particulars were entered by the
clerk of the church before the mar-
riage ; that, after the marriage, the
clergyman asked the prisoner if they
were correct, and that he answered
in the affirmative, and the clergy-
man signed the register: — Held,
that the prisoner was rightly con-
victed, lieg, V. Brovm^ 2 C. <& K.
504 ; 1 Den. C. C. 291 ; 3 Cox, C.
C. 127; 17L. J., M. C. 145.
Held, also, tliat it was not neces-
sary, upon the indictment, to prove
that the register books used by the
clergyman were furnished to him by
the registrar-general. Ih,
The 6 & 7 Will. 4, c. 86, s. 41,
makes it a misdemeanor to make a
false statement of one or more of the
particulars required to be registered
for the purpose of being inserted in
any register of births, deaths or
marriages; and to constitute this
offence, the purpose need not be
effected. Reg, v. Mason, 2 C. &
K. 622— Cresswell.
But it is a felony, imder sect. 43,
to cause the registrar to make an
entire false entry of a birth, mar-
riage or death, lb,
A woman went to a registrar,
and asked him to register the birth
of a child ; she stated to him the
particulars necessary for the entry,
and he made the entry accordingly,
and she signed it as the person giv-
422
PERJURY.
ing the infonnation. Every partic-
ular which she stated was false : —
Held, that this amounted to the
felony of causing a false entry to be
made within 6 & 7 Will. 4, c. 86,
s. 43, and was not merely the mis-
demeanor of making a false state-
ment under s. 41 . Meg, v. DewiU^
2 C. & K. 905 ; 4 Cox, C. C. 49—
Cresswell.
To support an indictment on 6
& 7 Will. 4, c. 86, s. 41, for making
a false statement touching the par-
ticulars required to be registered for
the purpose of their being inserted
in a regi5>ter of marriages, it is es-
sential that the false statement
should have been made wilfully and
intentionally, and not by mivstake
only. Reg, v. Dunhoyne (Lord), 3
C. & K. 1— Campbell.
A man may change his surname
by use and reputation, and if by
use and reputation he has acquired
a new name, he is not indictable
under 19 & 20 Vict. c. 19, s. 2, for
Using a new name in signing a notice
for the purpose of procuring his mar-
riage under 6 & 7 Will. 4, c. 85.
JReg, V. Smith, 4 F. <fc F. 1099—
Willes.
15. Seditioys Practices and Urdaw-
fvl Oaths,
StatiOes,]— 37 Geo. 3, c. 123; 39
Geo. 3, c. 79; 2 & 3 Vict. c. 12;
52 Geo. 3, c. 104 ; 57 Geo. 3, c. 19,
s. 25.
The provisions of 37 Geo. 3, c.
123, which make it a felony to ad-
minister an unlawful oath, are not
confined to oaths administered with
either a mutinous or a seditious ob-
ject. Bex V. Brodribb, 6 C. & P.
571— Holroyd.
A party of sixteen persons was
going out armed for the purpose of
night poaching. Before they went
out the prisoner swore them all to
secrecy : — Held, a felony within
that statute. Ih,
Where sixteen persons took the
same unlawful oaths, two or three
at a time, all being present : — Held,
that the person who administeml
the oath might be convicted on au
indictment for administering a cer-
tain oath to A., B., C, D,, &c.
(naming the whole sixteen persons.)
lb.
If the indictment states the oaths
to have been, not to inform or give
evidence against any person belong-
ing to a confederacy of persons as-
sociated together to do a certain
illegal act, this is sufficient, without
stating what the ill^al act was.
Ih,
If the oath administered was in-
tended to make the parties to whom
it was administered believe them-
selves under an engagement, it is
equally within the statute whether
the book on which they were sworn
was a Testament or not. Ih,
Where an oath was administered,
that the party taking it should not
make buttons under certain stated
prices, and should keep all the
secrets of the lodge : — Held, to be
an administering of an imlawfol
oath within the statutes. Bex r,
BaU, 6 C. & P. 563— Williams.
The administeiing an oath or
any agreement to any person not
to reveal the secrets of any assocsa-
tion, is an offence within those stat-
utes. Ih.
An association, the members of
which are bound by oath not to
disclose its secrets, is an imlawfol
combination and confederacy (un-
less expressly declared by some act
of parliament to be legal), for what-
ever purpose or object it may be
formed ; and the administerii^ of
an oath not to reveal anything
done in such association is an oi-
fence within 37 Geo. 3, c. 123, 55. 1.
Rex v. Lovelass, 6 C. & P. 596 ; 1
M. & Rob. 349— WilUams.
The precise form in which the
oath is administered is not material;
it is an oath within the meaning <i
the act, if it was understood bv the
party tendering, and the [^arty tak-
ing it, as having the force and obli-
gation of an oath. Ih,
PERSONATION.
423
Every person who engages in an
asFociation, the members of which,
in consequence of being so, take
an oath not required by law, is
guilty of an offence within 57 Geo.
S, c. 19, s. 25. Jiex v. Dixon, 6 C.
& P. 601 — Bosanquet.
The unlawful administering, by
any associated body of men, of an
oath to any person, purporting to
bind him not to reveal or discover
such unlawful combination or con-
spiracy, nor any illegal act done by
them, is felony withm the 37 Geo.
3, c. 123, though the object of such
asRociation was a conspiracy to ittise
wages and make regulations in a
certain trade, and not to stir up
mutiny or sedition. Bex v. Marks,
3 East, 157.
IndktmentJ] — By 37 Geo. 3, c.
128, 8. 4, it shall not be necessary,
in an indictment for any offence
under this statute, to set forth the
words of the oath, but it shall be
sufficient to set forth the pui-port of
it, or some material part thereof, an
indiftm^nt charging that the de-
fendants administered to J. H. an
oath, intende<l to bind him not to
inform or give evidence against
any member of a certain society
formed to disturb the public peace,
for any act or expression of his or
theirs, is good, without alle^jing
the tenor or purport of the oath to
be 8ct forth, and without shewing
in what manner the public peace
was meant to be disturbed by such
society. Hex v. Moore, 6 East,
419.
EvidejiceJ] — Where the witness,
swearing to the words spoken by
way of oath by the prisoner when
he administered the same, said that
he held a paper in his hand at the
8ame time when he administered
the oath, from which it was sup-
jX)eed that he read the words; yet
held, that parol evidence of what
he in feet said, was sufficient with-
out giving him notice to produce
such paper. lb.
XXVn. Pebsonation.
1. Stockholders, 423.
2. Seamen and Soldiers, 423.
3. Voters, 424.
1. Stockholders.
By 24 & 25 Vict. c. 98, s. 3,
" whosoever shall falsely and de-
" ceitfuUy personate any owner of
" any share or interest of or in any
" stock, annuity, or other public
" fund which now is or hereafter
" may be transferable at the Bank
" of England or at the Bank of Ire-
" land, or any owner of any share
" or interest of or in tlie capital
" stock of any body corporate, com-
" pany or society which now is or
" hereafter may be established by
" charter, or by, under or by virtue
" of any act of parliament, or any
" owner of any dividend or money
" payable in respect of any such
" share or interest as aforesaid, and
" shall thereby transfer or endeav-
" our to transfer any share or in-
" terest belonging to any such
" owner, or thereby receive or en-
" deavour to receive any money
" due to any such owner, as if such
" offender were the true and lawful
" owner, shall be guilty of felony."
(Former provision, 11 Geo. 4 & 1
Will. 4, c. 66, 8. 6.)
Obtaining and indorsing a divi-
dend warrant at the bank in the
name of a stockholder is " person-
ating a proprietor, and thereby en-
deavouring to receive the divi-
dend," although no attempt what-
ever is made to receive the money
at the pay-office. Hex v. Parr, 1
Leach, C. C. 434 ; 2 East, P. C.
1005.
2. Seanien and Soldiers.
1 1 Geo. 4 & 1 Will. 4, c. 20, s.
84 ; 2 & 3 Will. 4, c. 53, s. 49 ; 28
& 29 Vict. c. 124, s. 8.
Under 31 Geo, 2, c. 10, the i)er-
sonating must be of some existing
person entitled, or who prima facie
might.be entitled, to receive the
424
POISONING.
wages. JRex v. Browa^ 2 East, P.
C. 1007.
Where a prisoner personated one
S. CuiF, who was dead, and whose
prize-money had been paid to his
mother : — Held, that it did not
vary the prisoner's guilt ; and that
he might be convicted on 54 G^o.
3, c. 93, s. 89. Rex v. Cramp^ R.
& R. C. C. 327 ; S, P., Reg. v.
Pringle, 9 C. & P. 408 ; 2 M. C.
C. 127.
Tlie prisoner applied at Green-
wich Hospital for prize-money in
the name of J. B.; J. B. was dead,
and was supposed to be so at the
hospital, and the prisoner did not
obtain the money. On an indict-
ment for personating: — Held, that
the 54 Geo. 3, c. 93, s. 89, applied,
although the seaman was dead.
Rex V. MaHin, R. & R. C. C. 324.
To constitute the offence of per-
sonating the name of a seaman un-
der 57 Geo. 8, c. 127, s. 4, the
person entitled, or really supposed
to be entitled to prize-money, must
be personated ; personating a man
who never had any connection with
the ship is not an offence within the
act. Rex v. Tannet, R. & R. C. C.
351.
All persons aiding and abetting
the personating a seaman entitled
to allowance money are principals,
and the offence is not confined to
the person only who personates the
seaman. Rex v. Potts^ R. & R. C.
C. 353.
3. Voters,
Parliamentary,] — (6 & 7 Vict,
c. 18, 8. 83.)
On an indictment for fraudulent-
ly personating a voter at an elec-
tion of a member of parliament for
a city being a county of itself, the
writ to the sheriff must be pro-
duced in order to prove that the
election was duly made. Reg, v.
Vatle, 6 Cox, C. C. 470— Cromp-
ton.
Mtmicipal.] — The offence of in-
ducing another to personate a voter
at a municipal election under 22 &
23 Vict. c. 35, 8. 9, is complete
upon the personator tendering the
voting paper, although, on being
asked if he is the person whoee
name is signed to the voting lap^t
he answers " No," and tlie vote is
accordingly rej ected. Reg, v. BagWy
9 Cox, C. C. 412 ; 4 B. & S. 715;
33 L. J., M. C. 81.
Mtmicipal Voters.'^ — ^By 14 & 15
Vict. c. 105, s. 3, if any person,
pending, or after the election d
any guardian, shall wilfully, fraud-
ulently, and with intent ti> affect
the result of such election, person-
ate any person entitled to vote at
such election, he shall be liable on
conviction by two justices to three
months' imprisonment : — Held, ttat
the section makes no proviaon
against the offence of personating a
voter who is dead at the time of
the election, as the offender cannot
in such ease be convicted of per-
sonating any one " entitled to vote"
at the election. Whiteley v. Chap-
pea, 38 L. J., M. C. 51 ; 17 W. ft.
172; 4L. R., Q.B. 147; 19 LT.,
N. S. 355.
XXVm. PoisoxixG.
1. Placing Poison in PkaUatiom,iH'
2. Murder by — See Mubdkh.
S. Adminintering with Intent to Mut'
der — See Murder.
4, 7b procwre Abortion — See MoR-
DBR.
1. Placing Poison m PktrUaticM,
27 & 28 Vict c. 115, amends the
26 & 27 Vict. c. 113, "andprohibite
"the placing of poisoned tiesh and
^^ poisonous matters in plantatiuns^
" fields and open places."
2. Murder by, see page 330.
3. Administering Poisoti tritk h-
tent to Murder, see page 350.
4. To procure Abortion, see page
352.
PRIZE FIGHTS.
425
XXIX. Pbize-Fights.
Persons who are present at a
prize-fi^ht and who have gone thi-
ther with the purpose of seeing the
persons strike each other, are all
principals in tlie breach of the
peace, and indictable for an assault,
as well as the actual combatants,
and it is not at all material which
of the combatants struck the first
blow. Hex V. Perkins^ 4 C. & P.
537— Patteson.
Where a prize-fight is expected,
the magistrates ought to cause the
intended combatants to be brought
before them, and compel them to
enter into securities to keep the
peace till the assizes or sessions;
and if they refuse to enter into
such securities, to commit them.
Rtx V. Billingham, 2 C. & P. 234
— Burrough.
All prize-fights are illegal, and
all persons engaged in them are
punishable by law. Eeg, v. Brovm,
Car. (fcAI. 314— Alderson.
Thespectatoi'sof a sparring match
are not participes crimmis, so that
tiieir evidence, touching what oc-
curred at the match, requires cor-
roboration. JReff, V. Yoimff, 10 Cox,
C. C. 371--Bramwell.
There is nothing unlawful in
sparring, unless, perhaps, the men
fight on until they are so weak that
a dangerous fall is like to be the
result of the continuance of the
game. Therefore, except in the
latter case, death caused by an in-
jury received during a sparring
match does not amount to man-
slaughter, lb.
XXX. Railways and Tele-
GRAPHS.
1. Endangering Safety of Persons on
Railways, 425.
2. Obstructing Engines or Carriages
on, 427.
3. Injuring Telegraphs, 427.
1. Endangering Safety of Persons
on Maikoays,
By 24 & 25 Vict. c. 100, s. 32,
" whosoever shall unlawfully and
" maliciously put or throw upon or
" across any railway any wood,
" stone or other matter or thing, or
" shall unlawfully and maliciously
" take up, remove or displace any
" rail, sleeper or other matter or
" thing belonging to any railway,
" or shall unlawfully and mali-
" ciously turn, move or divert any
" points or other machinery belong-
" ing to any railway, or shall un-
" lawfully and maliciously make or
" shew, hide or remove any signal
" or light upon or near to any rail-
" way, or shall unlawfully and ma-
" liciously do or cause to be done
" any other matter or thing, with
" intent, in any of the cases afore-
" said, to endanger the safety of
" any person travelling or being
" upon such railway, shall be guilty
" of felony, and being convicted
" thereof shall be liable, at the dis-
" cretion of the court, to be kept
" in penal servitude for life, or for
" any term not less than five years
" (27 & 28 Vict. c. 47), or to be
" imprisoned for any term not ex-
" ceeding two years, with or with-
'• out hard labour, and, if a male
" under the age of sixteen years,
" with or without whipping." {F(yr-
mer provision, 14 iS; 15 vlct. c. 19,
s. 6.)
By s. 33, " whosoever shall un-
" lawfully and maliciously throw or
" cause to fall or strike at, against,
" into or upon any engine, tender,
'• carriage or truck used upon any
" railway, any wood, stone or other
" matter or thing, with intent to
" injure or endanger the safety of
" any person being in or upon such
" engine, tender, carriage or truck,
" or in or upon any other engine,
" tender, carriage or truck of any
" train of which such first-men-
" tioned engine, tender, carriage or
"truck shall form part, shall be
" guilty of felony, and being con-
426
RAILWAYS AND TELEGRAPHS.
" victed thereof shall be liable, at
'* the discretion of the court, to be
" kept hi penal servitude for life, or
" for any term not less than live
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not
" exceeding two years, with or with-
" out hard labour." [Fortner pro-
viitiofi^ 14 & 15 Vict. c. 19, s. 7.)
By s. 34, " whosoever, by any
" unlawful act, or by any wilful
" omission or neglect, sliall endan-
" ger or cause to be endangered the
" safety of any person conveyed or
" being in or upon a railway, or
" shall aid or assist therein, shall
" be guilty of a misdemeanor, and
" being convicted thereof shall be
" liable, at the discretion of the
" court, to be imprisoned for any
" term not exceeding two years,
" with or without hard labour."
{Former provision^ 3 & 4 Vict. c.
97, 8. 15.)
A party was liable to be indicted
under 3 & 4 Vict. c. 97, s. 15, if
he designedly placed on a railway
substances having a tendency to
produce obstruction to the car-
riages, though he might not have
done the act expressly with that
object, lleq, v. Ilolroyd^ 2 M. &
Rob. 339—Maule.
On an indictment under 3 <fe 4
Vict. c. 97, s. 15, for unlawfully
and wilfully doing anything to en-
danger the safety of persons con-
veyed in or upon any railway, it
was unnecessary to allege or prove
that the railway was constructed
or worked under the powers of an
act of parliament, lieg, v. Bow-
ray^ 10 Jur. 211 — Alderson.
A person throwing a stone at
engines or carriages using a rail-
way, might be indicted under 3 &
4 Vict. c. 97, s. 15, for doing an
act to endanger the safety of per-
sons conveyecl on the railway ; and
the indictment might contain a
count at common law for throwing
the stone at the carriages, Ih,
The neglect of the driver and
stoker of a railway engine to keep
a good look out for signals, accord-
ing to the rules and regulations of
the railway company, tlie conse-
quence of which neglect is, that a
collision occurs, and tlie safety of
passengers is endangered, was not
an offence within 3 & 4 Vict, c 97,
s. 15. Reg, v. PardenUm^ 6 Coi,
C. C. 247— Cresswell and Williams.
To constitute a felon v under U
& 15 Vict, c. 19, s. 7, it was neces-
sary that the stone or other thii
used should be thrown against ai
strike an engine, tender, carriage or
truck, ha^'ing a i>erson or persons
in or upon it ; and, therefore, al-
though a stone may be thrown at a
train with intent to injure j)ersons
being therein, yet, if it strikes a
carriage or tender not having any
person in or upon it at the time,
the felony is not proved. Rtq, v.
CiAxrt, 6 Cox, C. C. 202— Cromp-
ton.
On an indictment under 14 & 15
Vict. c. 19, s. 7, for maliciously
throwing stones into a railway car-
riage, with intent to endanger the
safety of any person in it, thei«
must be evidence of an intent to do
some grievous bodily harm, such as
would support an indictment for
wounding a particular person with
that intent ; and, if it appears that
the prisoner's intention was only to
commit a common assault on some
person in the carriage, he must be
acquitted. Reg, v. Kooke^ 1 F. k
F. 107— Erie.
On an indictment for wilfullv and
«
maliciously casting anytliing upon
a railway carriage or truck, either
with intent to injure it or to endan-
ger the safety of i>ersoiis in the
train ; there may be a cavse for the
jury, although the train is a goodp
train, and there was no person on
the particular truck, but there most
be proof of the intent to endanger
the safety of persons in it. Reg, v.
Sanderson, 1 F. & F.37— ChanncU.
B. placed a truck across a railway
line in such a manner that if a car-
riage or an engine had come aloi^
INJXJRING TELEGRAPHS.
427
the line it would have been ob-
structed, and the safety of pas-
sengers, who might have been in
any such carriage, would have been
endan^red. The railway had not
opened for passenger traffic, and no
carriage or engine was in fact ob-
stmcted : — Held, that he was guilty
of a misdemeanor, under 3 <fc 4 Vict,
c. 97, s. 15. Reg, v. Bradford^ 8
Cox, C. C. 809 ; 6 Jur., N. S. 1 102 ;
2 L T., N. S. 392 ; Boll, C. C.
268; 29 L. J., M. C. 171 ; 8 W. K.
531.
2. Obstructing Engines or Carriages
on.
By 24 & 25 Vict. c. 97, s. 85,
"whosoever shall unlawfully and
"maliciously put, place, cast or
" throw upon or across any railway
" any wood, stone, or other matter
" or thing, or shall unlawfully and
"maliciously take up, remove or
" displace any rail, sleeper, or other
" matter or thing belonging to any
" railway, or shall unlawfully and
" maliciously turn, move or divert
" any points or other machinery be-
" longing to any railway, or shall
unlawfully and maliciously make
or shew, hide or remove, any sig-
" nal or light upon or near to any
" railwav, or shall unlawfullv and
" maliciously do or cause to be done
any other matter or thing, with
intent, in any of the cases afore-
said, to obstruct, upset, over-
" throw, injure or destroy any engine,
" tender, carriage or truck usujg such
" railway, shall be guilty of felony,
" and, being convicted thereof, shall
be liable, at the discretion of the
court, to be kept in penal servi-
'* tude for life, oV for any term not
" less than five years (27 & 28
" Vict. c. 47), or to be imprisoned
" for any term not exceeding two
" vears, with or without hard la-
" f)our, and, if a male under the age
" of Hixteen years, with or without
" whipping." (Former provisions^
3 & 4 Vict. c. 97, s. 15, and 14 &
15 Vict. c. 19, s. 6.)
u
u
u
u
u
u
u
By s. 36, "whosoever, by any
" unlawful act, or by any wilful
" omission or neglect, shall obstruct
" or cause to be obstructed any en-
" gine or carnage usin^ any rail-
" way, or shall aid or assist therein,
" shall be guilty of a misdemeanor,
" and, being convicted thereof, shall
" be liable, at the discretion of the
" court, to be imprisoned for any
" tenn not exceeding two years, with
" or without hard labour." (For-
mer provision^ 3 & 4 Vict. c. 97, s.
15.)
The prisoners placed a stone upon
a line of railway, so as to cause an
obstruction to any carriages that
might be traveling thereon : — Held,
that if this was done mischievously,
and with an intention to obstruct
the carnages of the company, the
jury would be justified in finding
that it was done maliciously. JReg,
V. Upton, 5 Cox, C. C. 298— Wight-
man.
Upon an information before just-
ices on behalf of a railway com-
pany, for an offence against its act
of incorporation, in placing stones
and rubbish on the railway, and
thereby obstructing the free passage
of the same, evidence that the act
was done by certain persons em-
ployed by the defendant to repair a
wall between the railwav and his
premises adjoining ; and that on one
occasion the defendant himself, who
was standing by, nodded his liead,
and dii-ected the workman to go on,
is sufficient to warrant the justices
in convicting the defendant. Hob-
erts V. Preston, 9 C. B., N. S. 208.
3. Injuring Telegraphs,
By 24 & 25 Vict. c. 97, s. 37,
whosoever shall unlawfully and
maliciously cut, break, throw
down, destroy, injure or remove
any battery, machinery, wire, ca-
ble, post, or other matter or thing
whatsoever, being part of or being
used or employed in or about any
electric or magnetic telegraph, or
in the working thereof, or shall
u
i_
428
RAPE, ABUSE AND DEFILEMENT.
unlawfully and maliciously pre-
vent or obstruct in any manner
whatsoever the sending, convey-
ance or delivery of any communi-
cation by any such telegraph,
shall be guilty of a misdemeanor,
and, being convicted thereof, sliall
be liable, at the discretion of the
court, to be imprisoned for any
term not exceeding two years,
with or without hard labour ; pro-
vided, that if it shall appear to
any justice, on the examination of
any person cliarged with any of-
fence against this section, that it
is not expedient to the ends of
justice that the same should be
prosecuted by indictment, the just-
ice may proceed summarily to
hear and determine the same, and
the offender shall, on conviction
thereof, at the discretion of the
justice, either be committed to the
common gaol or house of correc-
tion, there to be imprisoned only,
or to be imprisoned and kept to
hard labour for any term not ex-
ceeding three months, or else shall
forfeit and pay such sum of money,
not exceeding 10/., as to the just-
ice shall seem meet."
By s. 38, " whosoever shall un-
lawfully and maliciously, by any
overt act, attempt to commit any
of the offences in the last preced-
ing section mentioned, shall, on
conviction thereof before a justice
of the peace, at the discretion of
the justice, either be committed
to the common gaol or house of
correction, there to be imprisoned
only, or to be imprisoned and
kept to hard labour for any term
not exceeding three months, or
else shall forfeit and pay such sum
of money, not exceeding 10/., as
to the justice shall seem meet."
XXXI. R^vpE, Abuse and De-
filement op women and
Children.
1. Rape, 428. [430.
(sl) Who capable of Committing,
(b) Upon whom Oommitied^ 430.
(c) Accomplishment or Comple-
tion,^!.
(d) Indictment, 431.
(e) Evidence, 432.
(i) Where Triable, m.
2. Abuse of Children, 435.
3. O^einent, 438.
1. Rc^,
By 24 & 25 Vict. c. 100, g. 48,
" whosoever shall be convicted of
" the crime of rape shall be guilty
" of felony, and, being convicted
" thereof shall be liable, at the dis-
" cretion of the court, to be kept in
" penal servitude for life, or for any
" term not less than five years (27
" & 28 Vict. c. 47), or to be imoris.
" oned for any term not exceediDg
" two years, with or without hard
" labour."
By s. 63, " whenever, upon the
"trial for any offence piuiisbable
" under this act, it may be neces-
"sary to prove carnal knowledge,
" it shall not be necessary to prove
" the actual emission of seed in or-
" der to constitute a carnal knowl-
"edge, but the carnal knowledge
" shall be deemed complete upon
" proof of penetration only." (Far-
mer provision^ 9 Greo. 4, c. 31, s. 18,)
By 9 Geo. 4, c. 31, 3 Edw. 1, c.
13, 13 Edw. 1, c. 34, 6 Rich. 2,e.
6, and 18 Eliz. c. 7, were repealed;
and 24 & 25 Vict. c. 95,repea&9 Geo,
4, c. 31, ss. 16, 17, 18, onrf 4 & 5
Vict, c, 56, s. 3.
To constitute rape it is not neces-
sary that the connexion with the
woman should be had against b^
will ; it is BufScient if it is without
her consent. Reg, v. Fletcher^ Bell,
C. C. 63 ; 5 Jur., K S. 179 ; 28 L
J., M. C. 85 ; 7 Wi R. 204 ; 8 Cox,
C. C. 131.
Upon an indictment for rape,
there must be some evidence that
the act was without the consent of
the woman, even where she is an
idiot. In such a case, where there
were no appearances of force having
been used to the woman, and the
only evidence of the conneidon was
RAPR
429
the prisoner's own admiwion, coup-
led with the statement that it was
done with her consent : — Held, that
there was no evidence for the iury.
Beg. V. FUsteher, 1 L. R., C. C'. 39 ;
12 Jur., N. S. 505 ; 35 L. J., M. C.
172; 14 L, T., N. S. 573 ; 14 W.
R. 774.
Having carnal knowledge of a
married woman, under circumstan-
ces which induced her to suppose it
is her husband, does not amount to
a rape. Rex v. Jackson^ R. & R.
C. C, 487.
If a man has connexion with a
woman, she consenting under the
belief that it is her husband, this is
not a rape, though it is a fraud on the
part of the man ; but it is an as-
saidt ; and the fact that there was
DO resistance on her part makes no
difterence, as the fraud is sufficient
to make it an assault. Reg, v.
WiUianu, 8 C. & P. 286— Alderson
and Gumev ; S, P., Reg. v. Saun-
dm,^Q.& P. 265— Gumey.
A. got into the bed of a mamed
woman, intending if he could to
have connection with her by pass-
ing for her husband, but not by
force. She supposing him to be her
husband allowed him to have con-
nexion with her: — ^Held, that he
was not guilty of rape. Reg, v.
Clarke, Dears. C. C. 397 ; 24 L. J.,
M. C. 25 ; 18 Jur. 1059 ; 3 C. L.
R. 86 ; 6 Cox, C. C. 412 ; S, P.,
Reg, V. Sweenie, 8 Cox, C, C. 223.
If in a case of rape the jury is
satisfied that non-resistance on the
part of the prosecutrix proceeded
merely from her being overpowered
by actual force, or from her not be-
ing able, from want of strength, to
resist any longer, or that, from the
number of persons attacking her,
she considered resistance dangerous
and absolutely useless, the jury
ought to convict the prisoner of the
capital charge ; but if they think,
from the whole of the circumstances,
that although, when the prosecu-
trix was first laid hold of, it was
against her will, yet that she did not
resist afterwards, because she in
some degree consented to what was
afterwards done to her, they ought
to acquit the prisoners of tl»e cap-
ital charge, and convict them of an
assault only. Reg, v. HaUett, 9 C.
& P; 748— Coleridge.
On an indictment for an assault
with intent to commit a rape, the
prosecutrix stated, that the defend-
ant, her medical man, being in her
bed-room, directed her to lean for-
ward on a bed, that he might apply
an injection ; she did so, and the
injection having been applied, she
found the defendant was proceed-
ing to have a connexion with her,
upon which she instantly raised her-
self, and ran out of the room. She
stated that the defendant had pen-
etrated her person a little : — Held,
that, if it had appeared that the de-
fendant had intended to have had a
connexion with the prosecutrix by
force, the complete offence of rape
would, upon this evidence, have
been proved, but that the thus get-
ting possession of the person of the
woman by surprise, was not an as-
sault with intCHt to commit a rape,
but was an assault. Reg, v. Stan-
ton, 1 C. & K. 415 — Coleridge.
On a trial for a rape, it was proved
that the prisoner made the prosecu-
trix drunk, and that when she was
in a state of insensibility he took ad-
vantage of it and violated her. The
jury convicted the prisoner, and
found that he gave her liquor for
the purpose of exciting her, and not
with the intention of rendering her
insensible, and then having sexual
intercourse with her: — Held, that
he was properly convicted of rape.
Reg, V. Camplin, 1 C. <& K. 746 ; 1
Den. C. C. 89.
The jury should be satisfied, not
merely that the act was in some de-
gree against the will of the woman,
but that she was, by physical vio-
lence or terror, fairly overcome, and
forced against her will, she resisting
as much as she could, and so as to
make the prisoner see and know
480
RAPE, ABUSE AND DEFILEMENT.
that she was really resisting to the
utmost. Reg, v. Rvdland^ 4 F. &
F. 495 — Crompton.
The rule is, that the connexion
must be without the consent of the
person alleged to have been ravish-
ed. Meg, V. Jones J 4 L. T., N. S.
154 — Channell.
But where a father has establish-
ed a kind of reign of terror in his
family, and his daughter, under the
influence of dread and teiTor, re-
mains passive while he has connex-
ion with her, he may be found guil-
ty of rape, Ih,
If a surgeon, professing to take
steps to cure a girl of a complaint,
has carnal connexion with her, and
she is ignorant of the nature of his
act, and makes no resistance, solely
from a bona fide belief that he is, as
he represents, treating her medical-
ly, with a view to her cure, his con-
duct in point of law amoimts to an
assault. Reg, v. Case^ 19 L. J., M.
C. 174; 1 Den. C. C. 580 ; 4 Cox,
C. C. 220.
To constitute a rape on a woman
conscious and capable of giving con-
sent at the time of connexion, there
must be an actual resistance of the
will. Non-resistance to connexion,
permitted under a misapprehension
induced by the conduct of the man,
by a woman conscious and capable
of consenting, amounts to consent,
though unintentional, and prevents
the offence amounting to a rape.
Reg, V. Barrow^ 38 L. J., M. C. 20;
1 L. R., C. C. 156 ; 17 W. R. 102 ;
19 L. T., N. S. 293 ; 11 Cox, C. C.
191.
A woman, with her baby in her
arms, was lying in bed between
sleeping and wakings and her hus-
band was asleep beside her. She
was completely awakened by a man
having connexion with her, and
pushing the baby aside. Almost
directly she was completely awak-
ened she found that the man was
not heV husband, and awoke her
husband : — ^Held, that a conviction
for a rape upon these facts could
not be sustained. Ih,
The prisoner was convicted of t
rape upon the prosecutrix, who wm
an apparent idiot. She proved the
act done, and said that it was
wrong, but that she said nothing to
the prisoner, and that she did not do
anything to him, and that she did
not like to hurt nobody. The con-
stable told the prisoner that he was
chained with commiUins a nipe
upon the prosecutrix and against
her will. The prisoner, in answer
to that, said, " Yes, I did ; and Tm
very sorry for it": — Held, that
there was evidence to sustain the
conviction. Reg, v. Pressy^ 17 L
T.,N. S. 295; 16 W. R. 142; 10
Cox, C. C. 635— C. C. R.
On a charge of rape, there havmg
been to some extent assent, and it
being doubtful whether the act had
been completed, it is necessary that
the jury should be satisfied, before
convicting either of a rape or of an
assault, with intent to commit a rape,
that the prisoner intended, notwith-
standing any resistance on the part
of the woman. Reg, v. Wright^ 4
F. & F. 967— Channell.
On her cross-examination she can-
not be contradicted from the de-
positions unless they are pat in. Ih>
(a) Who Capable of ComnMng,
A boy under fourteen cannot be
convicted of an assault with intent
to commit a rape. Rex v. MUer-
shaw, 3 C. & P. 396 — ^Vangban.
And if he is under that age, no
evidence is admissible to shew that,
in point of fact, he could commit
the offence of rape. Reg, v. PAii-
lips, 8 C. & P. 736— Patteson; &
P., Reg, V. Jordatiy 9 C. & P. US-
Williams.
(b) Upon whom Oommitted,
The prisoner had carnal knowl-
edge of a girl of thirteen by force.
She was incapable of giving consent
from defect of understanmng, and
RAPE.
431
it was not Bbewn that the act was
done against her will : — Held, that
he was properly convicted of rape.
Reg, V. Fletcher, Bell, C. 0. 63 ; 28
L J., M. C. 85 ; 8 Cox, C. C. 131.
But the mere fact of connexion
with an idiot girl capable of recog-
nizing and describing the prisoner,
but incapable, so far as her idiotcy
rendered her so, of expressing dis-
sent or consent, and therefore with-
out her consent, is not sufficient evi-
dence of the commission of a rape
upon her to be left to a jury. Reg,
Y. Fletcher, 35 L. J., M. C. 172 ; 1
L R. C. C. 39 ; 12 Jur.,K S. 505 ;
14 L. T., N. S. 573; 14 W. R. 774.
Though a child under ten years of
cannot legally consent to a rape upon
her, yet she may consent to the at-
tempt to commit it; and such an
attempt, with her consent, would
not be an assault. Where, there-
fore, a child is too young to know
the nature of an oath, her evidence
as to a rape upon her cannot be tak-
en, and marks of violence on her
private parts cannot be presumed
to have been done against her con-
sent. Reg. V. Cockhum, 3 Cox, C.
C. 543— Patteson.
(c) Accomplishment or Completion,
Any the slightest penetration is
sufficient, even though it does not
break the hymen. Mex v. Russen,
1 East, P. C. 438.
Penetration, short of rupturing
the h}anen, is sufficient to constitute
the crime of rape. Reg, v. Hughes,
2M.C. C. 190; 9C. &P. 752.
Though it is not necessary, in or-
der to complete the oflfence of rape,
that the hymen should be ruptured,
provided that it is clearly proved
that there was penetration; yet
where that which is so very near to
the entrance has not been ruptured,
it is very difficult to come to the
conclusion that there has been pen-
etration so as to sustain the charge.
Beg. V. M'Rue, 8 C. A P. 641—
Bosanquet.
Since 9 Geo. 4, c. 31 , the offence of
rape is made out by proof of penetra-
tion only and in such case a prisoner
must be found guilty, although there
was no emission, and although he did
not withdraw himself merely be-
cause he was satisfied. Rex v. Jen-
nings, 4 C. & P. 249 ; 1 Le^inn, C.
C. 93— HuUock ; S.P.,Rex\\ Reek-
spear, 1 M. C. C. 342.
To constitute penetration on a
charge of this offence, the parts of
the male must be inserted in those
of the female ; but, as matter of law,
it is not essential that the hymen
should be ruptured. Reg, v. Jordan,
9G,&F, 118— Williams.
. Since 9 Geo. 4, c. 31, s. 18, the
only question for the jury is, wheth-
er the private parts of the man did
or not enter into the person of the
woman. Therefore, though it ap-
pears from the evidence, beyond all
possibility of doubt, that the party
was disturbed inmiediately after
penetration, and before the comple-
tion of his pur}X>se, yet he must be
found guilty of having committed
the complete offence of rape. Reg,
V. Allen, 9 C. & P. 31— Tindal.
In order to convict on a charge
of assault with intent to commit
a rape, the jury must be satisfied not
only that the prisoner intended to
gratify his passions on the person of
the prosecutrix, but that he intend-
ed to do so at all events, and not-
withstanding any resistance on her
part. Rex v. Llogd, 7 C. & P. 318
— Patteson.
Proof of injectio seminis, as well
as penetration, was essential in an
indictment for rape, before 9 Geo.
4, c. 31. Rex V. JliU, 1 East, P. C.
439 ; S, P,, Rex v. Cave, 1 East,
P. C. 438 ; Rex v. Burrows, R &
R C. C. 519 ; Rex v. Covins, 6 C.
& P. 351— Park.
(d) Indictment,
By 14 & 15 Vict. c. 100, s. 9,
^^ upon an indictment for a rape a
" prisoner may be convicted of an
'^ attempt to commit the same, and
** will be liable to the same conse-
I
432
RAPE, ABUSE AND DEFILEMENT.
" queiices as if charged and convict-
" ed of tJie attempt."
An indictment need not contain
an express allegation of an assault.
Reg. V. AUen, 2 M. C. C. 179 ; 9 C.
&P. 521.
A. was convicted on an indict-
ment, which charged that he " in
and ujwn E. F.," " feloniously and
violently did make (omitting the
words ' an assault,')" and her, then
and there, and against her will, vi-
olently and feloniously did ravish
and carnally know: — ^Held, that
the omission of the words, " an as-
sault," was no ground for arresting
the judgment. Ih,
An mdictment is good which
charges that A. committed a rape,
and that R was present, aiding and
assisting him in the commission of
the felony. Reg, v. Onsham, Car.
& M. 187— Rolfe.
In such a case the party aiding
may be charged either, as he was
in law, a principal in the first de-
gree, or as he was in fact, a princi-
pal in the second degree. lb.
On an indictment charging a
misdemeanor for an assault in at-
tempting to commit a rape on A.
B., with a count for an assault of
the same nature on a different day
on C. D., it is competent to the pros-
ecutor, not only in law, "but by or-
dinary practice, to give evidence of
both assaults. Reg. v. Davies, 5
Cox, C. C. 328.
After an acquittal upon an in-
dictment for rape, and for an as-
sault with intent to commit a rape,
the prisoner may be indicted for a
common assault, upon which the
prosecutrix can only in chief be ask-
ed so much as to elicit what would
amount to a common assault ; but
the prisoner's counsel may, on cross-
examination, enter into the original
charge. Reg, v. Dungey^ 4 F. <fc F.
99— Willes.
A count charging A. with a rape
as a principal m the first degree,
and B. as a principal in the second
degree, may be jomed with another
count, charging B. as principal in
the first degi*ee, and A. a.<! principal
in the second degree. R^c v. Griy,
7 C. & P. 164— Colerildge.
A general conviction of a pri»on-
er charged both as principal in the
first degree, and as an aider and
abettor of other men in rape, is val-
id on the count chars^ing him as
principal. Rex v. Folkes, 1 M. C
C. 354.
On an indictment for rape charg-
ing the prisoner both as principal
in the first degree, and as an aider
and an abettor of other men in the
rape, evidence may be given of sev-
eral rapes on the same woman, at
the same time, by the prisoner and
other men, each assisting the other
in turn, without putting the prose-
cutrix to elect on which count to
proceed. lb,
A first count charged an assaolt
with intent to ravish ; the second, a
conmion assault. The record went
on to state, that the jury found
the defendant guilty of the misde-
meanor and onence in the indict-
ment specified, in manner and form
as by the indictment is alleged
against him, and the judgment was,
imprisonment and hard labour:—
Held, that the word" misdemeanor"
was nomen coUectivum, and tliat
the finding of the jury was in effect^
that the defendant was guilty of the
whole matter charged, and that the
judgment was therefore warranted
by the verdict. Rex v. Powell, 2 R
& Ad. 75.
Before 14 A 15 Vict, c. 100, sl
12, a defendant would be acquitted
on an indictment for an assault with
intent to ravish, if the evidence
amounted to proof of an actual rape.
Rex V. Harmwoody 1 East, P. C. 411.
(e) Evidence,
Of ProtectUrix, ] — A prisoner may
be convicted of rape iipon the un-
supported evidence of an infant un-
der years of discretion, if the jury
is satisfied that the evidence is such
as to leave no reasonable doubt of
RAPE.
433
his gailt. Anan.^ 1 Russ. G. & M.
932— Rooke.
Cff Complaints.'] — ^The particulars
of the complaint made by a female
on whom a rape has been commit-
ted are not receivable in evidence,
nor even her statement as to the
place of the commission of the crime ;
all that can be asked on examina-
tion in chief being the fact of her
having made such complaint, and
the natare of it. Jieg. v. Mercer^ 6
Jur. 243 — Gumey.
On the trial of an indictment for a
rape, it appeared that the person al-
lied to have been ravished but
who was since dead, had come home
evidently suffering from recent vio-
lence ; it was proved, that on her
return home she made a statement
as to the injury she had received,
and named the persons who had
committed it : — Held, that the par-
ticulars of this statement could not
be given in evidence as independent
evidence, to shew who were the per-
sons who committed the offence ;
and that statements of this kind
were only admissible to confirm the
evidence of the prosecutrix, by shew-
ing that she made a recent com-
plaint of the injury she had received.
jReg. v. Megson, 9 C. & P. 420—
Rolfe.
Where the deposition of the pros-
ecutrix taken before the magistrate
was not proved, and she was not at
the trial, evidence of complaints
made by her recently afler the out-
rage was rejected ; no such evidence
is receivable as confirmatory evi-
dence only. Heg. v. GhttridgeSy 9
CAP. 471— Parke.
A person to whom the prosecu-
trix made a complaint very recent-
ly after the offence, as she was on
her way home, may be asked wheth-
er she named a person as having
committed the offence, but not
whose name she mentioned. Reg,
v. Othome, Car. & M. 622— Cress-
well.
Fish. Dig.— 32.
The fact of the prosecutrix mak-
ing complaint of the outrage, and
the state in which she was at the
time of makiug the complaint, are
evidence. Rex v. Clarke^ 2 Stark.
241— Holroyd.
On a trial for a rape, or for an at-
tempt to commit a rape, the female
assaulted may be confirmed by proof
that she recently, after the alleged
outrage, made a complaint, but the
particulars of what she said cannot
be asked in chief of the confirming
witness, but may in cross-examina-
tion. Reg, V. Walker, 2 M, & Rob.
212— Parke.
Not only what the prosecutrix
said immediately after the occasion,
but what was said in answer to her,
is evidence. Reg, v. £!gre, 2 F. <fe
F. 579— Byles.
On a trial for a rape, the prosecu-
trix, a servant, stated that she made
almost immediate complaint to her
mistress, and that on the next day a
washerwoman washed her clothes,
on which was blood. Neither the
mistress nor the washerwoman was
under recognizances to give evidence,
nor were their names on the back
of the indictment, but they were at the
assizes attending as witnesses for the
prisoner. The judge directed that
both the mistress and the washer-
woman should be called by the
counsel for the prosecution, but al-
lowed the counsel for the prosecu-
tion every latitude in their examina-
tion. Reg, V. Stroner, 1 C. <fe E.
650— Pollock.
To Impeach Character of Prose-
cuirix,'] — On the trial of an indict-
ment for rape, the prosecutrix may
be asked whether, previously to the
conmiission of the alleged offence,
the prisoner had not had intercourse
with her by her own consent. Rex
V. MarHn, 6 C. & P. 562— Wil-
liams.
Under an indictment for an as-
sault to commit a rape, the defend-
ant may impeach the prosecutrix's
434
RAPE, ABUSE AND DEFILEMENT.
character for chastity by general,
but not by particular evidence. Reg,
V. Clarke, 2 Stark. 241— Holroyd.
But the character of the prosecu-
trix as to general chastity may be
impeached by general evidence. Ih,
The prisoner may give evidence
that the woman bore a notoriously
bad character for want of chastity
and common decency, or that she
had befoi« been crimUUy connect,
ed with the prisoner; but he can-
not shew that she had a criminal
connexion with other persons. Rex
V. Bbdgsan, R. & R. C. C. 211—
Gumey.
Nor is the woman obliged to an-
swer as to the latter fact. lb.
On the trial of an indictment for
a rape, held, that the prisoner's
counsel might ask the prosecutrix
the following questions, with a view
to contradict her : " Were you not
on , (since the time of the al-
leged offence), walking in the High-
street at Oxford to look out for
men ?" " Were you not, on ,
(since the time of the alleged of-
fence), walking in the High-street
with a woman reported to be a com-
mon prostitute?" Rex v. Barker,
8 C. & P. 589— Park and Parke.
Held, also, that evidence might
be adduced by the prisoner to shew
the general light character of the
Srosecutrix, and that general evi-
ence might be given of her being
a street-walker. Ih,
The prosecutrix may be asked,
on cross-examination, whether she
had not allowed another man than
the prisoner to take liberties with
her, m the interval between the com-
mission of the alleged offence and
the first complaint of it. Reg. v
Mercer, 6 Jur. 243 — Gumey.
A prosecutrix, on a charge of
rape, having, on cross-examination,
said that she had herself been charg-
ed with stealing money, and on
that occasion had accounted to a
police constable for the possession
of the money by stating that it was
given her for not complaining of a
person who had insulted her by so-
licitations against her chastity, but
denied that she had said the mon-
ey was given her for having con-
nexion with him : — Held, that tiie
prisoner could not call the consta-
ble as a witness to contradict the
prosecutrix, by proving that she had
said that the money was given her
for that purpose. Reg. v. Dean, 6
Cox, C. C. 23— Piatt.
But the prosecutrix having, on
cross-examination, denied that she
had connexion with other men
than the prisoner, those men may
be called to contradict her. Beg.
y.RMns, 2 M. & Rob. 512— Col-
eridge.
It appeared that the prisoner had
been taken before the mayor of K,
charged with rape ; and that the
prosecutrix was sworn, and her
statement taken down by the may-
or, who asked her some further ques-
tions, the answers to which were
taken down, and the prisoner was
discharged. That which was taken
down by the mayor was not read
over to the prosecutrix, neither was
it signed by her or by the mayor.
The prisoner was afterwards com-
mitted for trial by other magistrates :
— ^Held, that at the trial the prison^
er's counsel might cross-examine
the prosecutrix as to what she said
before the mayor of N., without the
production of that which was taken
down on that examination. Beg.
v. GriffUhs, 9 C. & P. 746— Coler-
idge.
On a trial for rape, evidence of
t^e general character of the prose-
cutrix, as that she had been a re-
puted prostitute, is admissible.
Reg. V. Ckof, 5 Cox, C. C. 146.
Proof of Suhsequent -4rt».]— On
an indictment for rape on a child
under ten, evidence was admitted
of subsequent perpetrations of the
same offence on different days pre-
\'iou8ly to complaint to the motbar,
it appearing that the prisoner had
threatened the chUd on the fii^
ABUSE OP CHILDREN.
435
occasion :— Held, that, virtually, it
was in snch a case all one continu-
ous oflence. Heg, v. Rearden^ 4 F.
4 F. 76— Willes.
On an indictment for an assault
with an intent to commit a rape,
evidence that the prisoner on a pnor
occasion had taken liberties with the
prosecutrix, is not receivable to
shew the prisoner's intent. Rex v.
Uoyd, 7 C. & P. 318— Patteson.
Proof of Age,'] — Family discus-
sion as to birth-day, and acts done
on the reputed day, are evidence
for the jury as to the age of an in-
fant prosecutrix, on whom a rape is
charged tp have been committed.
Reg. V. Hayes, 2 Cox, C. C. 226—
Cdtman.
Identity of Accused,'] — In a case of
rape against five, the prosecutrix,
when before the grand jury, did not
know the names of the different
prisoners, but could identify the
persons: — Held, that the grand jury
might call in another witness, who
was before the examining magistrate,
and there saw the prisoners, and let
the prosecutrix describe the differ-
ent prisoners, and the other witness-
es give their names ; and that, if the
prisoners could not be identified by
this mode, they might be brought
before the grand jury. Reg. v.
JiaJdns, 1 C. & K. 536— Tindal.
Depositions.] — If it is proved on
the part of the prosecutrix that the
party alleged to have been ravished
has been kept out of the way by the
prisoners, the judge will allow her
deposition before the magistrate to
he given in evidence. Reg. v. Gvi-
Mges, 9 C. & P. 471— Parke.
In an indictment for a rape, the
deposition of a girl taken before the
committing magistrate, and signed
by him, may, after her death, be
read in evidence at the trial of
the prisoner, although it was not
agned by her, and she was under
twelve years of age, provided she
was sworn, and appeared competent
to take an oath ; and all the facts
necessary to complete the crime may
be collected from her testimony so
given in evidence. Rex v. ^km-^
mtng, 2 Leach, C. C. 854 ; 1 East,
P. C. 440.
(f ) Where Triable.
By 4 & 5 Vict. c. 56, s. 6, " the
" crime of rape shall not be tried, or
" triable, before any justice of the
" peace at any general quarter ses-
" sions of the peace."
2. Ahtse of Children.
The Offence.]— Bj 24 & 25 Vict,
c. 100, s. 50, " whosoever shall un-
" lawfully and carnally know and
" abuse any girl under the age of
" ten years ^11 be guilty of felony,
" and, being convicted thereof, shall
" be liable, at the discretion of the
" court, to be kept in penal servi-
" tude for life, or for any term not
" less than five*years (27 <Sb 28 Vict.
" c. 47), or to be imprisoned for
" any term not exceeding two years,
" with or without hard labour."
{Previous provision, 9 Geo. 4, c. 31,
s. 17.)
By 8. 51, "whosoever shall un-
" lawfully and carnally know and
" abuse any girl being above the
" age of ten years and under the
" age of twelve years shall be guilty
" of a misdemeanor, and, being con-
" victed thereof, shall be liable, at
" the discretion of the court, to be
" kept in penal servitude for the
" term of five years (27 & 28 Vict.
" c. 47), or to be imprisoned for any
" term not exceeding two years,
" with or without hard labour."
(Previous provision, 9 Greo. 4, c. 31,
s. 17.)
By s. 52, " whosoever shall be
" convicted of any indecent assault
" upon any female, or of any at-
" tempt to have carnal knowledge
" of any girl under twelve years ot
^^ age, shall be liable, at the discre-
" tion of the court, to be imprisoned
" for any term not exceedmg two
486
RAPE, ABUSE AND DEFILEMENT.
" years, with or withoat hard la-
« bour."
If, on the trial of an indictment
for carnally knowing and abusing a
female child under ten, the jury is
satisfied that, at any time, any part
of the virile member of the prisoner
was within the labia of the pudenda,
no matter how little, this is suffi-
cient to constitute a penetration,
and the jury ought to convict. Reg.
V. Lines, 1 C. & K. 393— Parke.
Attempting to carnally know and
abuse a girl between the ages of ten
and twelve is not an assault, if the
girl consents to all that is done, but
18 a misdemeanor^ Reg. v. Martin,
9C. &P. 213; 2M. C. C.123.
The person making such attempt,
with the consent of tne girl, is not
indictable for an assault, but is in-
dictable for the misdemeanor of at-
tempting to commit the misdemean-
or of carnally knowing and abusing
her. Ih.
An indecent assault committed
upon a girl between the age of ten
and twelve, with her consent is not
indictable. Reg. v. Johnson, L. &
C. 632; 10 Cox, C. C. 114; 11
Jur., N. S. 532 ; 34 L. J., M. C.
192; 13 W.R.815; 12 L. T., N.
S. 503.
But on an indictment for attempt-
ing to have carnal knowledge of a
girl under ten years, being a misde-
meanor, consent by the girl is no de-
fence and is immaterial. Reg. v.
• BeaU, 35 L. J., M. C. 60 ; 14 W.
R. 57 ; 13 L. T, N. S. 835 ; 10
Cox, C. C. 157 ; 1 L. R., C. C. 10 ;
12 Jur., N. S. 12.
On an indictment for attempting
to carnally know and abuse a girl
under ten, with a count for a com-
mon assault , The attempt was
proved, but it could not be shewn
that the child was under ten years
of age, and it also appeared that no
violence was used by the prisoner,
and no actual resistance made by
the girl : — Held, that although con-
sent on the part of the girl would
put an end to the charge of i^sanlt,
vet that there was a great difference
between consent and submission,
and that, although, in the case of
an adult, submitting quietly to an
outrage of this kind would so £ir
to shew consent, yet that, in the
case of a child, the jury should con-
sider whether the submission of the
child was voluntary on her part, or
was the result of fear under the cir-
cumstances in which she was placed.
Reg. V. Day, 9 C. ife P. 722— Col.
eridge.
It; on the trial of an indictment
for a misdemeanor in carnally know-
ing and abusing a girl between the
age of ten and twelve, it appears
that the prisoner effected his par-
pose by force, and against the girl's
will, this is no ground of acquittal
Reg. V. Neak, 1 C. & K. 591 ; 1
Den. C. C. 36.
On an indictment for carnally
knowing and abusing a girl under
ten, the prisoner may be acquitted
of the felony, and con\'icted of an
assault. Reg. v. FoOces, 2 M. 4!b Rob.
460— Rolfe.
An assault is within the role that
fraud vitiates consent, and therefore
when a man, knowing that he had
a foul disease, induced a girl of thir-
teen, who was ignorant of his con-
dition, to consent to sleep with liim,
and he infected her : — Held, that he
might be convicted of an indecent
assault. Reg. v. Betinet, 4 F. & F.
1105— Willes.
Under an indictment for unlaw-
fully assaulting and having carnal
knowledge oi a girl betireen tai
and twelve years of age, the prison-
er may be convicted of the attempt
to commit that offence. Reg. y.
Ryland, 18 L. T, N. S. 538 ; 16 W,
R. 941 ; 11 Cox, C. C. 101— C. C.
R.
Who capable of ComnnUing.\--k
boy under fourteen cannot, by law,
be convicted of feloniously carnally
knowing and abusing a girl under
ten, even though it was proved that
ABUSE OF CHILDREN.
487
he had arrived at the full state of
puberty. Meg, v. Jordan^ 9 C. &
t. II a— Williams.
Three boys, under fourteen years
of age, were indicted for assaulting
a girl nine years of age. It was
proved that each of the boys had
connexion with her. The jury re-
turned as their verdict, " fliat the
prisoners were guilty, the child
being an assenting party ; but that
from her tender years she did not
know what she was about ": — Held,
upon this finding, a verdict of ac-
quittal must be entered. Reg. v.
Bead, 19 L. J., M. C. 88 ; 2 C. &
K. 957 ; 1 Den. C. C. 377 ; 3 Cox,
C. C. 266.
A schoolmaster, who places his
hands indecently on the person of a
female pupil, is guilty of an inde-
cent assault, although the pupil is
thirteen years of age, and does not
make any actual resistance. Meg,
y. WOavaran^ 6 Cox, C. C. 64—
Williams.
Letters relating to the charge
written by one of the scholars who
is examined as a witness for the
prosecution, may, on her denial of
the handwriting, be proved and
given in evidence on the part of the
defendant for the purpose of afifect-
ing the witness's credit, and she^dng
the capacity of the scholars to con-
spire to make a false charge against
bim, although the prosecutrix is not
proved to have received the letters,
or had any knowledge of their con-
tents. Ih.
Indictment,^ — ^An indictment in
the first count charged the defend-
ant with having assaulted " E. R.,
an infant above the a^e of ten and
under the age of twelve," with in-
tent to carnally know and abuse
her ; and in the second count charg-
ed that the defendant " unlawfully
did put and place the private parts
of bun, the said T. M., against the
private parts of her, the said E. R.,
and did thereby then and there un-
lawfully attempt and endeavour to
carnally know and abuse the saidE.
R." : — Held, that the second count
was bad, as it did not allege that E.
R. was between the ages of ten and
twelve. Meg, v. Martin^ 9 C. & P.
215 — Patteson.
Held, also, that the words " the
said E. R." merely meant that she
was the same person as was men-
tioned in the tii*st count, but that
Ahose words did not import into the
second count the description of E.
R. with respect to her age. Ih,
A prisoner was indicted for the
misdemeanor of carnally knowing a
girl between the age of ten and
twelve. The case was proved, but
the girl was under ten : — ^Held, that
he must be acquitted, and the 14 &
15 Vict. c. 100, 8. 12, did not apply.
Meg, V. ShoU, 3 C. & K. 206—
Maule.
A count in an indictment charg-
ing that a defendant did attempt to
assault a girl by soliciting and in-
ducing her to place herself in an in-
decent attitude, he doing the like, is
bad. Mex v. BuOer, 6 C. & P. 368
— Patteson.
Where an indictment charged
the defendant with an assault and
an intent to abuse and carnally know
a female child: — ^Held, that he
might be convicted of an assault to
abuse her simply, as the averment of
such intention is divisible. Mex v.
Dawson^ 3 Stark. 62 — ^Holroyd.
On an indictment for an assault,
&c., if penetration is proved, the
prisoner cannot be convicted of the
attempt. Meg, v. NichoUa^ 2 Cox,
C. C. 182— Rolfe.
An indictment (whether for
the felony or for an attempt
to commit it), founded on 24 &
25 Vict. c. 100, s. 50, which
makes it a felony to " carnally know
and abuse any girl under the age of
ten years," is sufficient if it uses the
words " carnally know " only, and
omits the word " abuse. " Meg, v.
HoUand, 16 L. T., K S. 536; 15
W. R. 879 ; 10 Cox, C. C. 478— C.
C, R.
438
MOTS.
JSvidence,'] — In cases of carnal
knowledge of children, the infant
witness, though under seven years
of age, if apprised of the nature of an
oath, must be sworn. Hex v. Bra-
sier, 1 Leach, C. C. 199 ; 1 East, P.
C. 443.
In a case of carnally knowing
and abusing a girl under ten years
old, it appeared, on an application
on the part of the prosecution to
postpone the trial, that the girl was
only six years old, and, by reason
of her age, quite incompetent to
take an oath ; — ^Held, that the trial
ought not to be postponed in order
that the child might be instructed
as to the nature of an oath ; but
that there might be cases of chil-
dren of more matured intellect, e. g.
of ten or twelve years old who
might be from neglected education
incapable of being sworn, in which
such a postponement might be prop-
er. I^, V. Nicholas, 2 C. & K.
246— Pollock ; S. P., Hex v. Wil-
Hams, 7 C. & P. 320.
Where in such a case the child,
from her tender age, was incompe-
tent to be sworn, the judge would
not receive evidence of what the
child stated to her mother shortly
after the alleged offence took place,
nor allow the mother to prove that
the child mentioned to her the name
of any particular person. lb,
A prisoner was charged with car-
nally abusing a child under ten, on
February 5, 1832. To prove the
child under ten years, an examined
copy of the register of her baptism
on February 9, 1822, was put in,
and her father stated, that he left
his house about a week before the
9th of February, 1822, his wife not
being then confined ; and that on
his return on that day he found this
child, and was told by his wife's
mother that it had been bom on the
day before: — Held, that this was
not sufficient evidence of the child's
being under ten years. Hex v.
Wed^e, 5 C. & P. 298— littledale
and Taunton.
A mother stated that a child
was ten years old last March,
but on cross-examination her evi-
dence as to the knowledge of her
children's ages seemed by no means
clear. The evidence, though obt
jected to as too unsatisfactory to
leave to the jury on a charge of
carnally knowing and abusing a
girl under the age of twelve, was
submitted to the jury, who found
that the girl was under twelve, and
convicted the prisoner of the charge:
— Held, that the conviction muft
be affirmed. Meg. v. Niehdh, 10
Cox, C. C. 476; 16 L. T., N. &
466 ; 15 W. R. 795— C. C. R.
3. Defilement,
By 24 & 25 Vict. c. 100, s. 49,
" whosoever shall, by false pr&-
" tences, felse representations or
" other fraudulent means, procure
" any woman or girl under the age
" of twenty-one years to have illictt
" carnal connexion with anv man,
" shall be guilty of a misdemeanor,
" and, being convicted thereof, shaB
" be liable, at the discretion of the
" court, to be imprisoned for any
" term not exceeding two years, with
" or without hard labour." {Sim-
lar to 12 & 13 Vict. c. 76, Bishop
of Oxford's Act (S. Wilberforce),
repealed by 24 & 25 Vict. e. 95.)
A conspiracy to procure by felac
pretences, false representations and
other fraudulent means, a young
girl to have illicit carnal connexion
with a man, is a misdemeanor at
common law. Reg, v. Mean^ S
Den. C. C. 79 ; 20 L. J., M. C. 59.
XXXIL Riots and Un-la^^fcl
Assemblies.
1. Nature and Character, 439.
2. Illegal Training and OriUinfi, 4^
3. Duties of lite Magistratjf^ 440.
4. Aiding and Aaisting the Gmte-
bulary, 441.
5. Indictment, 441.
6. Eiridence, 442. (44t
7. Injuries to Properly bg BiO^
NATURE AND CHARACTER.
489
1. Nature and Ckcsracter,
(\ Gto, 1, «<flrf. 2, c. 5 ; 7 Will. A^l
Vice. c. 91; 8 Geo.i.c. lU.)
If, in reading the proclamation
from the Riot Act, the magistrate
omits to read the words " God save
the King " at the end of it, persons
remaining together for an hour af-
ter such reading of the proclama-
tioii coald not be capitally convict-
ed mider 1 Geo. 1, stat. 2, c. 5, s. 1.
Bex V. Child, 4 C. & P. 442—
Yaughan and Alderson.
If the proclamation is read sev-
eral times, the hour is to be com-
pated from the first reading. Bex
V. Woolcoek, 5 C. A P. 516— Patte-
SOTL
If there is such an assembly that
there would have been a riot if the
parties bad carried their purpose in-
to effect, this is within the statute ;
and whether there was a cessation
or not, is a question for the jury.
Ih.
All thofle who assemble them-
selves together with an intent even
to commit a trespass, the execution
whereof causes a felony to be com-
mitted, and continue together abet-
tfcff one another till they have act-
ually put their design into execution,
and also all those who are present
when a felony is committed, and
abet the doing of it, are principals
in the felony. Beg. v. HcweU, 9 C.
^ p. 437— Littledale.
Any meeting assembled under
such circumstances as, according to
the opinion of rational and firm
men, are likely to produce danger
to the tranquiUity and peace of the
neighborhood, is an unlawful as-
sembly ; and, in viewing this ques-
tion, the jury should take into their
consideration the hour at which the
parties meet, and the language used
l>y the persons assembled, and by
thoee who addressed them, and then
consider whether firm and rational
men, having their fiimilies and prop-
erty there, would have reasonable
ground to fear a breach of the
peace; as the alarm must not be
merely such as would frighten any
foolish or timid person, but must be
such as would alarm persons of rea-
sonable firmness and courage. Beg,
V. Vincent, 9 C. & P. 91— Alderson.
An assembly of great numbers of
persons, which from its general ap-
pearance and accompanying circum-
stances, is calculated to excite ter-
ror, alarm and consternation, is
generally criminal and unlawful.
Bex V. Hunt, 1 Russ. C. & M. 388
— Bayley and Holroyd. See Bex
V. Hunt, 3 B. & A. 666.
And all persons who join an as-
sembly of this kind, disregarding
its probable effect, and the alarm
and consternation that are likely to
ensue, and all who give coimtenanoe
and support to it, are criminal par-
ties, ih.
Any assembly of persons attended
with circumstances calculated to ex-
cite alarm, is an unlawful assembly.
Beg. V. Neale, 9 C. & P. 431.— lit-
tledale.
If parties assemble together for a
purpose, which, if executed, would
make them riotous ; but, having as-
sembled, they do nothing, and sep-
arate without canning their purpose
into effect, this is an unlawful as-
sembly. Bex V. Birt, 5 C. & P. 154
— Patteson.
A riot is not the less a riot, nor is
an illegal meeting the less an ille^l
meeting, because the proclamation
from the riot act has not been read,
the effect of that proclamation be-
ing to make the parties guilty of a
transportable offence if Uiey do not
disperse within an hour ; but if that
proclamation is not read, the com-
mon law offence remains, which is a
misdemeanor, and all magistrates,
constables, and even private indi-
viduals, are justified in dispersing
the offenders; and if they cannot
otherwise succeed in doing so, they
may use force. Bex v. Fursey, 6
C. & P. 81— Gaselee and Parke.
Without any proclamation at all,
if a meeting is illegal, a party who
440
MOTS.
attends it, knowing it to be so, is
guilty of an offence. Ih,
A meeting called to adopt pre-
paratory measures for holding a na-
tional convention, is an illegal meet-
ing. Ih,
Although a man may arm him-
self and his friends for the defence
of the possession of his house against
such as threaten to make an unlaw-
ful entry, he cannot lawfully do the
same in defence of his close. Rex
V. Bangor {Bishop)^ 1 Russ. C. &
M. 388— Heath.
If persons are assembled together
to the number of three or more, and
speeches are made to those persons
to excite and inflame them, with a
view to incite them to acts of vi-
olence, and if that same meeting is
so connected in point of circum-
stances with a subsequent riot, that
you cannot reasonably sever the
latter from the incitement that was
used, those who incited are guilty of
the riot, although they are not pre-
sent when it occurs. Meg, v. Sharpe^
3 Cox, C. C. 288— Wilde, C. J.
If four are indicted for a riot,
and two die before trial, and two
are found guilty, judgment will not
be arrested. JRex v. ScoU, 3 Burr.
1262 ; 1 W. Bl. 350.
2. Illegal Training and Drilling,
A count in an indictment, under
60 Geo. 3 & 1 Geo. 4, e. 1, the Ist
section of which prohibits assemblies
of persons for the purpose of unlaw-
fully practising military exercise,
and then goes on to impose a pen-
alty on all persons who shall train
or drill any other persons, or who
shall be trained or drilled, is not
bad for duplicity, though it charges
the offence which is prohibited, and
the offence for which a penalty is
imposed. Reg. v. Hunt^ 3 Cox, C.
C. 215 — Maule. See Gogarty v.
Reg,, 3 Cox, C. C. 306.
3. Duties of the Magistracy,
A ma^strate called upon to sup*
press a not is required by law to do
all he knows to be in his powiff
that can reasonably be expected
from a man of honesty and of or-
dinary prudence, firmness and actir-
ity, imder the circumstances. Mere
honesty of intention is no defence, if
he fails in his duty. Rex v. A'ltmy,
3 B. & Ad. 947 ; 5 C. <& P. 254.
Nor will it be a defence that he
acted upon the best profesaonal
advice that could be obtained, (n
legal and military points, if his
conduct has been &ulty in point of
law. lb.
' In suppressing a riot, he is not
bound ta head the special consta-
bles, or to arrange and mar^a!
them ; this is the duty of the chief
constables. Ih,
Magistrates are not criminally
answerable for not having called
out special constables, and compel-
led them to act pursuant to 1 ft 2
Will. 4, c. 41, unless it is proved
that information was laid before
them, on oath, of a riot having oc-
curred or being expected. Ih,
A magistrate is not chai^geable
with neglect of duty for not hav-
ing called out the posse comitatos
in case of a riot, if he has given
the king's subjects reasonable and
timely warning to come to his as-
sistance. Ih,
A magistrate who calls upon
soldiers to attack a mob and sup-
press a riot is not bound to go with
them ; it is enough if he gives them
his authority. Ih,
A magistrate may assemble all
the king's subjects to quell a riot,
and may call in the soldiers, who
are subjects, and may act as such;
but this should be done with great
caution. Rex v. Kennetj 5 C. ft P.
282, n.
At the time of a riot, a magis-
trate may repel force by force, be-
fore the readmg of the prodamatiaD
from the riot act. Ih,
If*, on a riot taking place, a mag-
istrate neither reads the prochuna-
tion from the riot act, nor restnuitt
nor apprehends the riotei^ nor give?
INDICTMENT.
441
any OTder to fire on them, nor makes
any use of a military force under his
command, this is prim& facie evi-
dence of a criminal neglect of duty
in him ; and it is no answer to the
ebaige for him to say that he was
afraia, unless his fear arose from
sach danger as would affect a firm
man ; and if, rather than apprehend
the rioters, his sole care was for
himself, this is also neglect. Ih,
It is not only lawful for a magis-
trate to disperse an unlawful assem-
bly, eren when no riot has occur-
red ; but if they do not do so, and
are guilty of criminal negligence in
not putting down any unlawful as-
sembly, they are liable to be prose-
cuted for a breach of their duty.
%. V. Neaie, 9 C. & P. 431— Lit-
tledale.
The mode of dispersing an unlaw-
ftd assembly may be very difierent
according to the circumstances at-
tending it in each particular case ;
and an unlawful assembly may be
so far verging towards a riot, that
it may be the bounden duty of the
magistrates to take immediate steps
to £sperse the assembly ; and there
may be cases where the magistrates
will be bound to use force to dis-
perse an unlawful assembly. Ih.
4. Aiding and astistinff the Can-
stalnUary.
To support an indictment against
a person for refusing to aid and assist
a constable in the execution of his
duty in quelling a riot, it is neces-
aary to prove — first, that the con-
stable saw a breach of the peace
committed ; secondly, that there
was a reasonable necessity for call-
ing on the defendant for his assist-
ance ; and thirdly, that when duly
called upon to assist the constable,
the defendant, without any physical
impossibility or lawful excuse, re-
fused to do so ; and in such a case
it is no ground of defence that from
the number of rioters the single aid
of the defendant would not have
been of any use. Iteg. v. JBroum,
Car. & M. 814 — Alderson.
A person charged to aid a con-
stable, and who does so, is pro-
tected eundo, morando et redeundo,
jReg. V. Phelps, Car. & M. 180--
Coltman.
5. Jkdictmeni.
If an indictment on 1 Geo. I,
Stat. 2, c. 5, s. 1, for remaining as-
sembled one hour after proclama-
tion, in setting out the proclamation
omits the words " of the reign of,'*
which were contained in the proc-.
lamation read by the magistrate —
this is a variance (but amendable
under 14 & 16 Vict. c. 100, s. 24).
Bex V. Woolcock, 5 C. & P. 516—
Patteson.
Twelve persons were indicted for
a riot and assaulting J. W. The
indictment did not conclude in ter-
I'orem popuU. Several of the de-
fendants had been convicted, and,
at the ensuing assize, at wliich the
remaining defendants were tried,
there was evidence that they had
joined in the riot, but there was no
proof of any assault, except in the
words " po. se," and " guilty," writ-
ten on the indictment, over the
names of the convicted defendants :
— ^Held, that this was no proof of
an assault as against the present de-
fendants, and that they could not
be convicted of the riot only, as the
indictment did not conclude in ter-
rorem populi. Hex v. Hughes^ 4 C.
& P. 373. But see 14 & 15 Vict. c.
100, s. 24.
If pei-sons are chained with a riot,
and cutting down fences, and the
indictment does not conclude in
terrorem populi, they cannot on
that indictment be convicted of a
riot, but may be convicted of an
unlawful assembly. Rex v. Cba;, 4
C. & P. 538— Patteson.
An indictment on 1 Geo. 1 , stat.
2, c. 5, s. 1, for remaining assembled
one hour after proclamation made,
need not charge the original riot to
442
RIOTB.
have been in terrorem populi. Rex
V. James ^ 5 C. & P. 153 — Patteson.
An indictment containing two
counts, one for a riot, and the other
for an assault, found by the grand
jury, a true bill as to the assault
and ignoramus as to the riot, is
food. Hex V. Fieldhousej Cowp.
25,
6. Evidence.
On an indictment for a riot, the
parties charged must be proved to
have been present before the fact of
the riot can be given in evidence.
NickohovCs case^ 1 Lewin, C. C. 300
— ^Alderson.
But it has since been held that
the prosecutor is entitled to prove
the acts of any of the rioters before
he connects the others with the riot.
Beg, V. Cooper, 1 Russ; C. & M.
405— Williams.
7. Injuries to Property by Rioters.
The Qfence.] By 7 & 8 Geo. 4,
c. 27, the 9 Geo. 3, c. 29, 52 Geo. 8,
c. 130, and 56 Greo. 3, c. 125, were
whoUy repealed; and the 1 Geo. 1,
St. 2, c. 5, wcLS partially repealed.
The 7 & 8 Geo. 4, c. 27, repealed so
much of 22 & 23 Car. 2, c. 11, and
33 Greo. 3, c. 67, a« related to this sub-
ject; and 9 Geo. 4, c. 31, wholly re-
pealed 43 Geo. 3, c. 113. The 24
A 25 Vict. c. 95, repeals 7 & 8 Geo.
4, c. 30, 8. 8; 4 & 5 Vict. c. 56, 8. 2 ;
ande &7 Vict. c. 10.
See L, C, J. TinddPs Charge on
the Bristol Special Commission in
1832, 5 C. & P. 265, n.
By 24 & 25 Vict. c. 97, s. 11, " if
any persons, riotously and tumult-
uously assembled together to the
disturbance of the public peace,
shall unlawfully and with force
demolish or pull down or destroy,
or begin to demolish, pull down
or destroy, any church, chapel,
meeting-house or other place of
divine worship, or any house, sta-
ble, coachhouse, outhouse, ware-
house, office, shop, mill, malt-
a
<c
u
u
u
a
u
cc
cc
(C
"house, hop-oast, bam, gniiiary,
" shed, hovel or fold, or any build-
"ing or erection used in &nnmg
" land, or in carrying on any trade
"or manufacture or any brao^
"thereof, or any building, other
"than such as are in this sectioD
"before mentioned, belonging to
" the Queen, or to any county, rid-
" ing, divi^on, city, iJoroagh, poor-
" law union, parish or place, or be-
" longing to any nniversity, or col-
" lege or hall of any univernty, or
"to any inn of court, or devoted
" or dedicated to public use or or
" nament, or erected or maintained
" by public subscription or contribo*
"tion, or any machinery, whether
" fixed or movable, prepared for or
" employed in any manufacture, or
"in any branch thereof, or any
" steam-engine or other engine for
"sinking, working, ventilating or
" draining any mine, or any staiyi,
" building or erection used in ood>
" ducting the business of any mine,
"or any bridge, waggon-way or
"trunk for conveying minenlfl
" from any mine, every such of-
" fender shall be guilty of felony,
" and, being convicted hereof, shall
" be liable, at the discretion of the
" court, to be kept in penal servitude
" for life, or for any term not less
" than five years (27 & 28 Vict a
"47), or to be imprisoned for any
"term not exceeding two years,
" with or without hard labour and
" with or without solitary confine.
" ment." {Former enactment, 7 &
8 Geo. 4, c. 30, s. 8.)
By s. 12, "if any persons, rioi-
" ously and tumultuously assembled
" together to the disturbance of
" the public peace, shall unlawfully
" and with force injure or damage
" any such church, chapel, meeting-
" house, place of divine worship,
" house, stable, coachhouse, ouW
" house, warehouse, office, shop,
"mill, malthouse, hop-oast, banif
" granary, shed, hovel, fold, buUd-
"mg, erection, machinery, engine,
"staith, bridge, waggon-way or
EVIDENCE.
443
"trank, as in the last preceding
** section mentioned, eveiy such ot
" fender shall be guilty of a mis-
" demeanor, and, being convicted
" tiiereof, shall be liable, at the dis-
" cretion of the court, to be kept
"m penal servitude for any term
" not exceeding seven and not less
" than live years (27 & 28 Vict. c.
" 47), or to be imprisoned for any
" term not exceeding two years, with
" or without hard labour : provided,
" that if, upon the trial of any per-
" fion for any felony in the last pre-
" ceding section mentioned, the jury
^'^11 not be satisfied that such
" person is guilty thereof, but shall
"be satisfied that he is guilty of
"any offence in this section men-
"tioned, then the jury may find
" him guilty thereof, and he may be
" punished accordingly."
It is not a beginmng to demolish
a house within 7 & 8 Geo. 4, c. 30,
8. 8, unless the jury is satisfied that
the ultimate object of the rioters
was to demolish the house, and
that, if they had carried their inten-
tion into mil eflfect, they would, in
pomt of fact, have demolished it.
Mex V. Thomas, 4 C. & P. 237—
littledale.
An indictment for feloniously be-
ginning to demolish a house cannot
be supported unless the persons
committing the outrage had an in-
tention of destrovinsc the house ;
and, therefore, where considerable
damage was done to a house by a
mob, who did this with an intention
of seizing a j)erson who had taken
refuge in the house : — Held, to be
not within the statute. Rex v.
iVice, 5 C. & P. 510— Tindal.
Every man has a right to work
for the best price he can get, but if
others choose to work for less than
the usual prices, the law will not
permit that violence should be com-
mitted towards them, or towards
those by whom they are employed,
or those with whom they are con-
nected. Where a party of coal-
whippers, having a feeling of ill-
will towards a coal-lumper, who
paid less than the usual wages, cre-
ated a mob, and riotously went to
the house where he kept his pay-
table, and cried out that they would
murder him, and began to throw
stones, and broke windows, and
partitions, and part of a wall, and
continued, after his escape, throw-
ing stones at the house till they
were compelled to desist by the
threats of the police: — Held, that
they might be convicted of begin-
ning to demolish under 7 & 8 Geo.
4, c. 30, s. 8, though their principal
object was to injure the lumper;
provided it was also their object to
demolish the house, either on ac-
count of its being used by him, or
by his men, and though they had
not any ill-will against the owner of
the house personally. Reg, v. BaU,
6 C. & P. 329— Gurney.
A. and others were indicted for
feloniously demolishing the house of
B. It was proved that A. and a
mob of persons assembled at H.; A.
there addressed the mob in violent
language, and led them in a direc-
tion towards a police-office about a
mile from H., some of the mob from
time to time leaving, and others
joining. At the police-office the
mob broke the windows, and then
went and attacked the house of B.,
and set it on fire, A. not being
present at the attack on the house
or at the fire : — Held, that on this
state of facts A. ought not to be
convicted of the demolition, as it
did riot sufficiently appear what the
original design of the mob at H.
was, nor whether any of the rtob
who were at H. were the persons
who demolished B.'s house. Reg,
V. HoweU, 9 G. & P. 437— Little-
dale.
If rioters attack a house, and
have begun to demolish it, but
leave ofi' of their own accord, after
having g(me a certain length, and
before the act of demolition is com-
pleted, this is evidence ivom. which
a jury might infer that they did not
444
RIOTS.
intend to demolish the house ; but
if the mob was prevented from go-
ing on by the interference of the
police, or any other force, that
would be evidence to shew that
they were compelled to desist from
that which they had designed, and
it would be for the jury to inter
that they had begun to demolish
within 7 & 8 Geo. 4, c. 80, s. 8.
Ih.
Destroying movable 6hop-shut-
ters is not a beginning to demolish
within that statute, as they are not
part of the freehold. Ih.
If rioters destroy a house by fire,
that is as much a demolition as if
any other mode of destruction were
used. Ih»
If a part of the object of rioters
is to demolish a house, it makes no
difference that they also acted with
another object, such as to injure a
person who had taken refuge there.
On an indictment under 7 & 8
Geo. 4, c. 80, s. 8, for riotously be-
ginning to demolish, and demolish-
ing a dwelling-house, total demoli-
tion is not necessary, though the
parties were not interrupted. If the
house is destroyed as a dwellmg-
house, it is enough. Reg, v. Phil-
Ups, 2 M. C. C. 252 ; S. C, nom.
Meg. V. Longford^ Car. & M. 602.
Four men, members of, an.d con-
nected with the familv of, the own-
er of the cottage, with great vio-
lence, and to his great terror, drove
him from it, and pulled it down all
but the chimney : — Held, sufficient
to satisfy the statute, though no
other persons were within reach of
the alarm ; they having no bon&
fide claim of right, but intending to
injure the owner. lb.
The 7 & 8 Geo. 4, c. 30, s. 8, not
having given any definition of what
shall oe a riot within the meaning
of that enactment, the common-
law definition of a riot must be re-
sorted to, and in such a case, if any one
of her Majesty's subjects is terrified,
this is a sufficient terror and alarm
to substantiate that part of the
charge of riot. lb.
If persons riotously assemble and
demolish a house, really believing
that it is the property of one rf
them, and act bon& fide in the as>
sertion of a supposed right, this will
not be a felonious demolition of the
house within 7 & 8 Geo. 4, c 30, s.
8, even though there was a riot
lb.
If rioters destroy a house by fire,
this is a felonious demolition of it
within 7 & 8 Geo. 4, c. 30, s.8,and
the person guilty of such an oflfenoe
may be convicted of an indictmoit
founded on that enactment, and
need not be indicted for arson. Beg.
v. Harris, Car. & M. 661— Tindal,
Parke and Rolfe. S. P., Beg, v.
Christum, 12 L. J., M. C. 26-
Wightman.
u, in a case of feloniously de-
molishing a house by rioters, it ap-
pears that some of the prisoners set
fire to the house itself, and that
others carried furniture out of the
house and burnt it in a fire made
on the gravel-walk on theoutade
of the house, it will be for the jury
to say whether the latter were not
encouraging and taking part in a
general design of destrojring the
house and furniture ; and if so, the
jury ought to convict them, lb,
A prisoner had been committed
on a charge of high treason, and af-
terwards the grand jury returned a
true bill agamst hun, with others,
for feloniously demolisliing a house,
under 7 & 8 Geo. 4, c. 30, s. 8.
He pleaded to that indictment, and
wished to be tried after the oth«
prisoners, who were indicted with
him for feloniously demolishing the
house, on the ground that he had
had no copy of any depositions as to
that charge. But this was not al-
lowed, as the prosecution might
have been commenced without go-
ing before any magistrate, and thai
there would have been no deposi-
tions at all. Heg, v. Simpson^ Car.
& M. 669— Tindal, Parke and Kolfe.
ROBBERY— THE OFFENCE.
445
If a house is demolished by riot-
ers by means of fire, one of the riot-
ers, who is present while the fire is
baroiog, may be convicted for the
felonious demolition under 7 <fe 8
Geo. 4, c. 30, s. 8, although he is
not proved to have been present
when the house was originally set
on fire. lb.
XXXm. ROBBBBY.
1. The Offence, 445.
5. Garottifi^, 448.
3. Indicttnent, 449.
4. Evidence, 449.
6. Assault with Intent to Rob, 450.
6. Punishment of Whipping, 452.
1. The Offence.
By 24 & 25 Vict. c. 96, s. 40,
"whosoever shall rob any person,
^' or shall steal any chattel, money,
" or valuable security from the per-
" 8on of another, shall be guilty of
" felony, and, being convicted there-
" of, shall be liable, at the discre-
" tion of the court, to be kept in
" penal servitude for any term not
" exceeding fourteen years, and not
" less than five years (27 & 28 Vict,
"c. 47), or to be imprisoned for
" any term not exceeding two years,
" with or without hard labour, and
" with or without solitary confine-
" ment." {Former provision, 7 Will.
4 A 1 Vict. c. 87, 8. 5.)
By s. 41, "if, upon the trial of
"any person upon any indictment
" for robbery, it shall appear to the
"jury upon the evidence that the
"defendant did not commit the
" crime of robbery, but that he did
" commit an assault with intent to
" rob, the defendant shall not, by
" reason thereof, be entitled to be
" acquitted, but the jury shall be at
" liberty to return as their verdict
" that the defendant is guilty of an
'* assault with intent to rob; and
^ thereupon such defendant shall be
'' liable to be punished in the same
" manner as if he had been convict-
" edupon an indictment for felonious-
" ly assaulting with intent to rob;
" and no person so tried as is herein
" lastly mentioned shall be liable to
" be afterwards prosecuted for an
" assualt with intent to commit the
" robbery for which he was so
"tried." {Former provision y \^ &
15 Vict. c. 100, s. 1 1.)
Before the Enactment.'] — The fol-
lowing decisions took place under 7
Will. 4 & 1 Vict. c. 85, s. 11, which
was repealed by 14 & 15 Vict. c.
100, s. 10 ; and by that section it
was enacted, " that on the trial of
' an indictment for robbery, the
'jiiry may convict of an assault
' with intent to rob, and, on con-
' viction, the prisoner is liable to
' the same punishment as upon an
* indictment for feloniously assault-
* ing with intent to rob."
A. being indicted for a robbery,
the jury acquitted him of the rob-
bery, and found him guilty of a
common assault only r—Held, such
conviction right. Reg, v. Birch, 1
Den. C. C. 185 ; 2 C. & K. 193.
The prisoners were indicted for
robbery; the jury acquitted them
of the robbery, but found that the
prisoners were guilty of assaulting
and beating the prosecutor with in-
tent to rob him: — Held, that the
jury was not justified in finding this
verdict, and that the judgment
must be arrested, as the assaults
contemplated by 7 Will. 4 & 1
Vict. c. 85, 6. 11, were misdemean-
ors, and as the jury had found the
prisoners guilty of a felony, which
was not in the indictment. Reg. v.
R^d, T. & M. 431 ; 2 Den. C. C.
89 ; 15 Jur. 181 ; 20 L. J.,M. C.67.
Burglariously breaking and en-
tering a dwelling-house, with intent
to commit a rape, was not a crime
which included an assault ; and
therefore, in an indictment for such
a burglary, the prisoner could not
be convicted of an assault. Reg, v.
WaikvM, Gar. <fe M. 264; 2 AL C. C.
446
ROBBERY.
217 ; & P., Reg v. Orumpton, Car.
& M. 597— Patteson.
If, on an indictment for a rob-
bery with violence, the robbery was
not proved, the prisoner could not
be found guilty of the assault only,
under 7 Will. 4 & 1 Vict. c. 85, s.
11, unless it appeared that such as-
sault was committed in the progress
of something, which, when com-
pleted, would be, and with intent
to commit, a felony. JRe^, v. Oreen-
wood, 2 C. & K. 339— Wightman.
^ 7 <fc 8 Geo. 4, c. 27, the 23
Hen. 8, c. I , wirf 3 Will. & M. c. 9,
and 1 Edw. 6, c. 12, so far as re-
lated to this subject were repealed,
and 24 & 25 Vict. c. ^b, repeals 7 &
8 Geo. 4, c. 29, ss. 6, 7, and 7 Will.
4 & 1 Vict. c. 87.
See O, J. TindaVs Charge, 5 C.
& P. 267, n.
If a robber takes a purse of mon-
ey from a person and restores it to
him immediately, saying, " If you
value your purse take it back and
five me the contents," but is appre-
ended before the money is deliv-
ered to him, yet the crime is com-
pleted. Rex V. Peat, 1 Leach, C. C.
228 ; 2 East P. C. 557.
Taking money from a woman at
l^e time of an attempt to commit a
rape amounts to robbery, although
there was no demand of money
made by the prisoner, and it was
clearly his original intent only to
commit a rape. Rex v. Maekham,
2 East, P. C. 711.
Where money was given to one
of the mob during the riots in Lon-
don, in 1780, upon knocking at the
prosecutor's door in a menacing
manner: — Held, that it was rob-
bery. Rex V. Tc^lin, 2 East, P. C.
712.
Where the prisoners threatened
to bring a mob from Birmingham
(then in a state of riot and disturb-
ance), and burn the prosecutor's
house if he did not give them mon-
ey, and he did so und^r fear of that
threat : — ^Hdd, a robbery. Rex v.
Astley, 2 East, P. C. 729 ; Eat v.
Brovm, 2 East, P. C. 731.
So it was held in the case of a
threat to tear down com, and level
the house. Rex v. Simons, 2 East,
P. C. 731.
If a person by force or threats
compels another to give him goods,
and by way of colour obliges him
to take, or if he offers less tnan the
value, it is robbery. Rex v. Simons,
2 East, P. C. 712; S, P., Rex v.
Spencer, 2 East, P. C. 712.
Where persons under pretence of
an auction got a woman into a
house, and compelled her, by
threats of carrying her before a
magistrate and to prison for not
Eaymg for a lot pretended to have
een Did for by her, to pay them
one shilling through fear of prison,
and for the purpose of obtaining
her liberation, but without any fear
of any other personal violence : —
Held, not robbery, but only duress.
Rex V. Wood, 2 East, P. C. 732.
To obtain money by a threat to
send for a constable, and take the
party before a magistrate, and
thence to prison, is not robbery;
for the threat of legal imprison-
ment ought not 80 to alarm any
mind as to induce the person to
part with his property. Rex v.
KneuHand, 2 Leach, C. C. 721 ; 2
East, P. C. 732.
If the property is not taken by
violence, nor parted with through
fear, it is no robbery; thoogb
there was sufficient legal and rea-
sonable ground for fear, as upon a
threat to charge one with an un-
natural crime. Rex v. Reane, 2
East, P. . C. 734 ; 2 Leach, G C.
616.
Suddenly snatching a bundle from
the hands of a boy as the prisoner
ran past him, is only larceny, as
there was not a sufficient degree of
force and terror to constitute rob-
bery. Rex V. Macaukty, 1 Leach,
C. C. 287 ; S. P., Rex v. Rabins, I
Leach, C. C. 290, n.
But snatching an article from a
THE OFFENCE.
447
num will constitute robbery, if it
is 60 attached to his person or
clothes as to afford resistance. JRex
Y. Mason, R. & R. C. C. 419.
To force an ear-ring from the ear
of a lady, with a felonious intent
to steal it, is a sufficient degree of
Yiolence to constitute robbery ; and
to remove it from the ear to the
curls of her hair, where it acci-
dentally remained, is a sufficient
carryiog away. JRex v. Lapier, 1
Leach, C. C. 820 ; 2 East, P. C.
557, 708.
To snatch a diamond pin from
the head-dress of a lady, with such
force as to remove it with part of
the hair from the place in which it
was fixed, is a sufficient violence to
constitute robbery. Rex v. Moore,
1 Leach, C. C. 335.
Snatching property from the hand
of another is not sufficient force to
constitute highway robbery. JRex
Y. Baker, 1 Leach, C. C. 290 ; 2
East, P. C. 702.
To constitute the crime of high-
way robbery, the force used must
be force with intent to overpower
the party, and prevent his resist-
ance ; and if the force used is not
with that intent, but only to get
possession of the property of the
party attacked, it is not highway
robbery. Eex v. Onosil, 1 C. & P.
304 — Garrow.
llie crime of robbery may be
committed by obtaining money
firom a man, by threatening to
charge him with having been guilty
of fiodomitical practices. JRex v.
Jofies, 1 Leach, C. C. 139.
To obtain money from a person
against his will, by threatemng to
carry him before a magistrate, and
to accuse him of -unnatural prac-
tices, amounts to robbery, though
no actual or personal violence is
used. Hex v. DonnaUy, 1 Leach,
C. C. 193 ; 2 East, P. C. 713, 783.
It is equally a robbery to extort
money from* a person, by threaten-
izi^ to accuse him of an unnatural
crune, whether the party so threat-
ened has been guilty of such crime
or not. Bex v. Gardner, 1 C. & P.
479— Littledale.
If a man obtains property from
another by accusing him of havii^
been guilty of an unnatural crime,
it will amount to robbery, although
the party was under no apprehen-
sion of personal danger, and felt
no other fear than that of losing
his character. JRex v. Hickman, 1
Leach, C. C. 278; 2 East, P. C.
728.
Semble, it is still robbery to ex-
tort money by threatening a chaise
of sodomy. Reg. v. Stringer, 2 M.
C. C. 261.
To constitute robbery by taking
money from another upon a threat
of charging him with an unnatural
crime, the money must be taken
immediately upon the threat made,
and not after the parties have sep-
arated, and there has been time for
the prosecutor to deliberate and
procure assistance. Rex v. Jack'
son, 1 East, P. C. Add. xxi; 1
Leach, C. C. 193, n. ; 2 Leach, C.
C. 618, n.
Parting with property upon the
charge oi an unnatural crime will
not make the taking a robbery, if
it is parted with, not from the fear
of loss of character, but for the
purpose of- prosecuting. Rex v.
FuUer, R. & R. C. C. 408.
Where money was obtained by
calling a man a sodomite and threat-
ening him, but the money was part-
ed with by the prosecutor, not so
much from fear of losing his char-
acter as from fear of losing his
place : — ^Held, that it was sufficient
to constitute a robbery. Rex v.
Elmetead, 2 Russ. C. & M. 128.
Obtaining money by threatening
to charge a man with an unnatural
crime, and carry him before a mag-
istrate, is robbery, if there is any
constraint upon his person. Rex v.
Cannon, R. & R. C. C. 146.
The parting with money or goods,
through fear of loss of character
and service, upon a charge of so-
448
ROBBERY.
domitdcal practdcee, is sufficient to
constitute robbery, although the
party has no fear of being taken
into custody, nor any dread of pun-
ishment, liex V. Egerton^ R. & R.
C. C. 375.
Obtaining money from a woman
by threatening to accuse her hus-
band of an indecent assault is not
robbery. Rex v. Eckoarda^ 5 C. &
P. 518; 8. G. nom. Rex v. Ed-
ward, 1 M. & Rob. 257— Little-
dale.
If a bailifT handcuffs a prisoner,
under pretence of carrying him to
prison with greater safety, and by
means of this violence extorts mon-
ey, he is guilty of robbery. Rex v.
Groscoigne^ 1 Leach, C. C. 280; 2
East, P. C. 709.
If a gang of poachers attacks a
gamekeeper and leaves him sense-
less on the ground, and one of them
returns and steals his money : —
Held, that one only can be con-
victed of the robbery, as it was not
in pursuance of any common in-
tent. Rex V. Hawkins^ 3 C. & P.
392— Park.
A. had set wires in which game
was caught; B., a gamekeeper,
found them and took them, with
the game caught in them, for the
use of the lord of the manor : A.
demanded them with menaces, and
B. gave them up. The jury found
that A. acted under a bon& fide im-
pression that the wires and game
were his property: — ^Held, that it
was no robbery. Rex v. HJaU, 8
C. & P. 409— Vaughan.
A. and B. were walking tc^ether,
B. carrying A.'s bundle, when C.
and D. came up and assaulted A.:
B. threw down the bundle, and ran
to the assistance of A., when C.
took it up and made off with it.
C. and D. were indicted for rob-
bery, A. being the prosecutor: —
Held, that they could not be con-
victed of the robbery, but only of
simple larceny, as the thing stolen
was not in the personal custody of
A. Rex V. MiUaws, 5 C. A P. 508
Vaughan.
A. was attacked by robbers, who,
after using very great violence
towards him, took from him a piece
of paper, on which was written a
memorandum respecting some mon-
ey that a person owed him : — ^Held,
robbery. Rex v. Binghy^ 5 C. &
P. 602— Gurney.
A. asked B. what o'clock it was,
and B. took out his watch to tell
him, holding his watch loosely in
both his hands. A. caught hold of
the ribbon and key attached to the
watch and snatched it from B., and
made off with it : — ^Held, no rob-
bery, but a stealing from the per-
son. Reg, V. Hughes, 2 C. & E.
214— Patteson.
In order to constitute the offence
of robbery, not only force must be
employed by the party charged
therewith, but it is necessary to
shew that that force was used with
the intent to accomplish the rob-
bery. Reg, V. Edioards, 1 Cox, C.
C. 32— Alderson.
When it appeared that a wound
had been accidentally inflicted on
the hand of the prosecutrix : — ^Held,
that an indictment for robbery was
not sustainable. Tb.
A creditor having violently as-
saulted his debtor, and so forced
him to give him a cheque in part
payment, and having then again
assaulted him, in order to force him
to give him money in payment of
the debt : — Held, that as there was
no felonious intent, he could not
properly be convicted of robbery.
Reg, V. HemmingSy 4 P. & F. 50
—Erie.
2. Garotting.
By 24 & 25 Vict c 100, a. 21,
^'whosoever shall, by any means
"whatsoever, attempt to choke,
" suffocate or strangle any other
" person, or shall, by ^any means
" calculated to' choke, suffocate or
" strangle, attempt to render anj
INDICTMENT.
449
"other jierson insensible, uncon-
" scions or incapable of resistance,
" with intent in any of such cases
" tbei'oby to enable liimself or any
" other person to commit, or witli
"intent in anv of such cases there-
"by to assist any other j)erson in
"committing, any indictable of-
" fence, shall be guilty of felony,
" and, hemg convicted thereof, shall
" be liable, at the discretion of the
" coiut, to be ke[)t in penal servitude
" for life, or for any terra not less
" than live years (27 & 28 Vict. o.
" 47), or to be imprisoned for any
"term not exceeding: two vears,
•* with or without hard labour."
3. Indictment,
An indictment for a highway
robbery must state that the assault
was feloniously made with an of-
fensive weapon. Ilex v. Pelfry-
man, 2 Leach, C. C. 563 ; 2 East,
P. C. 783.
An indictment for robbery need
not have the word " violently ;"
but it must appear upon the whole
statement that violence was used.
R&e v. Smith, 2 East, P. C. 784.
A servant was set out by his mas-
ter to receive money from his mas- 1
ter's customers, and having received
the monev, he was robbed of it on
his way liome. Semble, that an in-
dictment for this robbery, in which
the money was laid to be the prop-
erty of Ids master, coidd not be
suppoited, as the money had never
been in the possession of the mas-
ter. Jieff, V. Mudick, 8 C. & P.
237 — Alderson.
And when, in such a case, the
objection was taken during the
trial, the judge directed the jury
to be discharged, and a new indict-
ment to be sent to the grand jury,
containing a count laying the prop-
erty in the servant. Id. •
Au and B. were indicted for the
offence of robbery. The jury found
that A. took the property of the
prosecutor from him by violence,
and that B. was present during part
Fisn. Dig.— 33.
of the time, and that he was a
party, with A., to a design to bring
the prosecutor to the place where
he was robbed by A., and to obtain
property from him on a false charge
of an unnatural crime, but that he
was not aiding or assisting in, or
])rivy to the taking of, tlie property
from the prosecutor by violence : —
Heldj that, in order to convict B.,
the indictment should have been
framed on 7 Will. 4 & 1 Vict. c.
87, s. 4; and that he could not,
since the passing of the statute,
under the circumstances of the
case, be convicted on an indictment
charging the oifence of robbeiy.
Beg. V. Taunton, 9 C. & P. 309 ; 2
M. C. C. 118.
An indictment for a robbery on
an unmarried woman in her maiden
name is good, although she mar-
ries before the indictment is found.
7toj V. Turner, 1 Ijcach, C. C. 536.
Where several are indicted for
robbery, it is not necessary to aver
that they were together, but where
one only of the party is indicted, it
ought to be averred that ho com-
mitted the offence " toi^ether with
others." Hajfety^s case, 2 Lewiu,
C. C. 271 — Patteson. See Reg. v.
Ranisden, 1 Cox, C. C. 37 — per
Maule, contrk.
An indictment for robbery, which
charges the prisoners with having
assaulted G. P. and H. P., and
stolen 2s. from G. P. and Is. from
H. P., is coiTCCt, if the robbing of
G. P. and H. P. was all one act ;
and, if it were so, the counsel for
the prosecution will not be put to
elect. Reg. v. Giddins, Car. & M.
634— Tindal,
4. Evidence.
On an indictment for robbery,
the declaration in articulo mortis of
the party robbed is not admissible
in evidence. Rex v. Lloyd, 4 C. &
P. 233— BoUand.
A. and B., when riding in a gig
together, were robbed at the same
time, A. of his money, B. of his
» .
450
ROBBERY.
watch, and violence used towards
both. There was an indictment
for the robbing of A., and another
indictment for the robbing of B.:
— Held, that, on the trial of the
first indictment, evidence might be
given of the fact of the loss of the
watch by B., and that it was fomid
on one of the prisoners, but that
no evidence ought to be given of
any violence oSered to B. by the
robbers. Hex v. Rooney^ 1 Q, &
P. 517— littledale.
If persons who had formed part
of a mob obtain money from a
pJBfcTty by advising him to give mon-
ey to the mob, and are indicted for
this as a robbery, the prosecutor, to
shew that this was not bon& fide
advice, may give evidence of de-
mands of money made by the same
mob at other places, before or after-
wards in the course of the same
day, if any of the prisoners were
present on those occasions. Rex v.
WinJcwoHh, 4 C. & P. 444— Parke.
An indictment for robbery charg-
ed that A. and B. together assaulted
C, and robbed him of his watch.
At the trial C. did not appear, and
there was no evidence of the felony,
but a witness saw C. on the ground
on the night in question, and sever-
al persons around him abusing him,
and this witness saw A. strike C.
The jury convicted A. of an assault,
but said that they were not satisfied
that A. had any intent to rob C. : —
Held, that the conviction was right.
Reg. V. Birch, 2 C. ifc K. 193 ; 1
Den. C. C. 185.
Evidence of footmarks is, per se,
insufficient evidence on which to
convict of a robbery. Reg, v. BrU-
Urn, 1 F. & F. 354— Watson.
A., B. and C. were indicted for
having robbed and beaten D. A.
knocked D. down, and it was im-
puted that B. and C. stole the prop-
erty from his pockets : — ^Held, that
if B. and C. stole the property, and
A. did not participate in the rob-
bery, A. could not be convicted of
an assault, as the assault committed
by him was an independent assault
unconnected with the robbery ; but
that, if the jury thought tliat D.
was not robbed by any of the pris-
oners, but had been assaulted by all
of them, they might find all guilty
of the assault. Keg. v. BameUy 2
C. & K. 594 ; 8 Cox, C. C. 432-
Cresswell.
In a case of robbery from the
person, where the property alleg-
ed to have been stolen has not
been seen or known to be safe im-
mediately before the robbery, if
there is any evidence on the subject,
it is for the jury to say whether tie
property was really in a |DOsition to
be stolen as alleged. Reg. v. WU-
kins, 10 Cox, C. C. 363— Chambers,
C.S.
5. Assault with Intent to Rob.
By 24 & 25 Vict. c. 96, s. 42,
" whosoever shall assault any per-
" son, with intent to rob, shall be
" guilty of felony, and,' being cod-
" victed thereof, shall (save and ex-
" cept in the cases where a greater
" punishment is pro^nded by this
" act) be liable, at the discretion of
" the court, to be kept in penal serv-
" itude for the term of five years
" (27 <fc 28 Vict. c. 47), or to be
" imprisoned for any term not ex-
" ceeding two years, with or with-
" out hard labour, and with or
" without solitary confinement"
Former provisions, 7 <fc 8 Geo. 4, c
29, B. 6 ; 7 Will. 4 4fc 1 Vict. c. 87,
s. 6.)
By 6. 43, " whosoever shall, heing
" armed with any offensive weapon
" or instrument, rob, or assault
" with intent to rob, any person, or
" shall, together witii one or more
"other pei'son or persons, rob, or
" assault with intent to rob, any
" person, or shall rob any person, and
" at the time of or imm^ately be-
"fore or immediately after aich
" robbery, shall wound, beat, strike,
" or use any other personal violence
" to any person, shall be guilty of
" felony, and, being convicted there-
ASSAULT WITH INTENT TO ROB.
451
" of, shall be liable, at the discretion
"of the court, to be kept in penal
" servitude for Ufe, or for any term
" not less than five years (27 & 28
"Vict c. 47), or to be imprisoned
" for any term not exceeding two
"years, with or without hard la-
" hour, and with or without solitary
" confinement.'* {Former provision^
7 Will. 4 & 1 Vict. c. 87, s. 3.)
A. was decoyed into a house and
chained down to a seat, and com-
pelled to write an order for the pay-
ment of money and an order for the
delivery of deeds. The paper on
which he wrote remained in his
hand half an hour, but he was chain-
ed all the time: — Held, that this
was not an assault with intent to
rob within 7 & 8 Geo. 4, c. 29, s.
6. Rex V. Edwards, 6 C. & P. 521
— Patteson.
It must be proved that the as-
sault was made on the person in-
tended to be robbed. Hex v. Thorn-
at, 1 Leach, C. C. 330; 1 East, P.
C. 417. And see Rex v. Trusty, 1
East. P. C. 418.
Therefore an assault on a post-
boy, with intent to rob the travel-
ler, is not sufficient. Ih,
Hiere must be a demand of mon-
ey or other projDerty, as well as an
assault, to constitute the ofience.
Rex V. Parfait, 1 Leach, C. C. 19 ;
lEast, P. C. 416.
A. and B., on a concerted plan to
obtain money from C, threatened to
accuse him of an indecent exposure
of his person, and A. (B. being
present) seized C. by the collar, and
A and C. went to a station-house,
and there A. made the threatened
charge*: — Held, that, on these facts,
A and B. might be convicted of an
ai^iault with intent to rob C, al-
though the threats used did not
come within the terms of 7 & 8
Geo. 4, c. 29, ss. 7, 9, or of 7 Will.
4 <fc 1 Vict. c. 87, 8. 4. Reg. v.
Stringer, 1 C. & K. 188.
A., at C. fair, came up to B., the
prosecutor's father (being a stran-
ger to him), and gave him eleven
sovereigns to buy him a horse, and
B. put them into his pocket. B. re-
fused to give the eleven sovereigns
back, and A. and the prisoner, who
was in his company, assaulted him,
but could not get the money from
him. On the next day the prisoner
asked B. for the eleven sovereigns ;
and, at L. fair on a subsequent day,
the prisoner, having seen the prose-
cutor receive seven sovereigns, de-
manded the eleven sovereigns of
him, and then knocked him down,
and tried to get the seven sovereigns
out of his pocket : — Held, that tl^gpe
was such a semblance of a claim of
ri^ht, that this was not an assault
with intent to rob. Reg, v. Boden,
1 C. & K. 395— Parke.*
Assaulting and threatening to
charge with an infamous crime
with intent to extort money, was
an assault with intent to rob under
7 Will. 4 & 1 Vict. c. 87, s. 3.
Reg. V. Stringer, 2 M. C. C. 261.
Where prisoners were indicted
for robbery under aggravated cir-
cumstances, it is competent for the
jury, under 14 & 15 Vict. c. 100, s.
11, to find the prisoners guilty of an
aggravated assault with intent to
rob, the assault following the nature
of the robbery charged ; and pris-
oners found guilty of such aggrava-
ted assaults were liable to transport-
ation, under 7 Will. 4 <fc 1 Vict. c.
87, ss. 3, 10. Reg. v. Mtchell, 3
C. <fc K. 181 ; 16 Jur. 506 ; 21 L.
J., M. C. 135 ; 2 Den. C. C. 468 ; 5
Cox, C. C. 541.
Indictment,] — An indictment for
an assault with intent to rob, which
charges that the prisoner in and up-
on R. B. feloniously did make an
assault, " with intent the monies,
goods and chattels of R. B., from
the person and Against the will of
R. B., then and there feloniously
and violently to rob, steal,' take
and carry away, against the form
of the statute," is good. Reg. v.
Huxley, Car. & M. 596 — Patteson,
A. was indicted in one count for
452
SANITARY LAWS.
foloniously assaulting the prosecutor
with intent to steal his monies and
goods, and in another count for the
misdemeanor of attempting to steal
the same monies and goods. He
was found guilty on the first count ;
whereupon his counsel moved in ar-
rest of judgment, on the ground
that the indictment was bad, by
reason of a misjoinder of counts : —
Held, that the objection was un-
founded, and that A. w^s properly
convicted. Reg. v. Furguson, Dears.
C. C. 427 ; 1 Jur., N. *S. 73 ; 24 L.
J^M. C. 61.
^Ikn indictment charged that A.
B., in and upon C. D., feloniously
did make an assault, and him the
said C. D. in bodily fear and dan-
ger of his life did put, and two
pieces of current silver coin, from
the person and against the will of
the said C. D. feloniously and vio-
lently did rob, steal, take and carry
away ; and that A. B. immediately
before, at the time of and immediate-
ly after such robbery as aforesaid, did
feloniously beat and strike and use
other personal violence to said C.
D. contra formam statuti. The
jury found A. B. guilty of assault-
ing and beating 0. D., with intent
to rob him :— -Ileld, that, as the of-
fence of assaulting with intent to
rob was not expressly stated in the
indictment, the prisoner, at common
law, could not be convicted; and
secondly, as an assault with intent
to rob was made felony by statute,
the jury was not at liberty, under 7
Will. 4 & 1 Vict. c. 85, s. 1,1, to
find the prisoner guilty of that fel-
onious assault. Her/, v. lieid, 5
Cox, C. C. 104 ; 2 Den. C. C. 89.
6, Punishment of Whipping.
By 26 & 27 Vict. c. 44, s. 1,
" where any person is convicted of
" a crime under s. 43 of 24 & 25
" Vict. c. 96, or under s. 21 of 24 &
" 25 Vict. c. 100, the court before
" whom he is convicted may, in ad-
" dition to the punishment awarded
" by the said sections, or any part
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thereof, direct that the offender,
if a male, be once or twice or
thrice privately whipped, subject
to the following provisions; (1),
that in the case of an offender
whose aixe does not exceed sixteen
years, the number of strokes at
each such whipjMng do not exceed
twenty-five, and the instrument
used shall be a birch rod; (2),
that in the case of any other male
offender, the luimber of strokes do
not exceed fifty at each such
whipping ; (3), that in each ca<e
the court in its sentence shall spec-
ify the number of strokes to bein-
fiicted and the instrument to be
used : provided, that in no case
shall such whip[)ing take place af-
ter the expiration of six months
from the passing of the sentence ;
provided also, that every siicii
whipping, to be indicted on any
person sentenced to ])enal seni-
tude, shall be indicted on him be-
fore he shall be removed to a con-
vict prison, witli a view to his im-
dergoing his sentence of penal
servitude."
XXXIV. Sanitaby Laws.
Qtiarantine,^ — Disobeying the or-
ders of the Privy Council with re-
spect to the performance of quaran-
tine is an offence at common law.
Bex V. Harris y 2 Leach, C. C. 549 ;
4 T. R. 202.
Infection,^ — A person may be in-
dicted for unlawfully and injurious-
ly carrymg a child infected wi^ die
small-pox along a public highway,
in which j^ersons are passing, and
near to the habitations of tlie kind's
subjects. Rexw VatiiandlUo^ \yL
<fc S. 73.
It is an indictable offence in an
apothecary unla>\'folly and injur-
iously to inoculate children witli
the small-pox, and, while they ate
sick of it, unlawfully and iujunons-
SEA, OFFENCES AT.
458
ly to cause tbem to be earned along
a public street. Bex v. Burnett^
4 M. & S. 272.
To brinor a horse infected with the
glanders uito a public j>lace, to the
danger of infecting the Queen's sub-
jects, is a misdemeanor at conmion
law, and after verdict an indictment
for that offence is good without an
averment that the defendant knew
that the disease was communicable
to men. lieg. v. Henson, Dears. C.
C. 24.
XXXV. Sea, Offences at.
7 Geo. 4. c. 38 ; 7 & 8 Geo. 4, c.
28,8. 12; 17 & 18 Vict. c. 104, ss.
267-270, and 18 & 19 Vict. c. 91,
F. 21, " provide for the prosecution
"of offences committed on the high
" seas and abroad."
An English sliip upon the higli
Beas is to be considered as j)art of the
territory of England ; and therefore
a foreigner, who whilst on board
rach ship commits an offence against
the English laws, is amenable to
those laws ; and it makes no differ-
ence whether he has gone on board
voluntarily, or has been taken and
detained there against his will.
Recr, V. Lopez \ Reg, v. ScUtler^
Dears. & B. C. C. 525 ; 4 Jur., N.
S. 98 : 27 L. J., M. C. 48 ; 7 Cox,
C.C.431.
A ])erson is found within the ju-
risdiction of a court of justice, with-
in the meaning of the 18 ifc 19 Vict.
c. 91, s. 21, when he is actually
present there, whether he has come
within such jurisdiction voluntarily,
or has been brought there against
his will. Ih.
The defendant was convicted on
an indictment charging him with
assaulting the prosecutors on the
high seas, and imprisoning and de-
taining them. They were Chilian
subjects, and had been ordered by
the sjovemment of Chili to be ban-
ished from that country to England.
The defendant beuig master of an
English merchant vessel lying in
the territorial waters of Chili,
near Valparaiso, contracted with
the Chilian government to take
the prosecutors from Valparaiso
to Liverpool ; and they were ac-
cordingly brought on board his
vessel by the officers of the gov-
ernment, and were carried by the
defendant to Liverpool under his
contract : — Held, that although the
conviction could not be sup| nailed
for the assault and imprisonment in
the Chilian waters, it must be sus-
tained for that which was done out
of the Chilian teiTitory, and tliata?-
though the defendant was justSft.
in receiving the prosecutors on
board liis vessel in Chili, yet that
justification ceased when he passed
the line of Chilian jurisdicti<^n, and
the detention of the prisoners and
conveying them to Liverpool was a
wrong intentionally planned and
executed in pursuance of the con-
tract, amounting to a false imyn-is-
onment, and triable by Englisli law.
Beg. V. Lesley, Bell, C. C.' 220 ; 8
Cox, C. C. 2G9 ; 6 Jur., N. S. 202 ;
29 L. J., 3L C. 97 ; 8 W. R. 220; 1
L. T., N. S. 452.
In an indictment preferred at the
assizes for a felony committed on
the high seas, it is sufficient to al-
lege that the offence was committed
on the high seas, without also aver-
ring that the offence was committed
within the jurisdiction of the Ad-
miral t v. Beg, V. JwieSy 2 C. & K.
165 ; i Den. C. C. 191.
Admiralty Jurisdiction. ] — The
criminal jurisdiction of the Ad-
miralty of England extends over
British ships, not only on the high
seas but also in rivers, below the
bridges, where the tide ebbs and
Hows, and where great ships go,
though at a spot where the munici-
pal authorities of a foreign country
might exercise concurrent jurisdic-
tion, if invoked. Rerj, v. Anderson^
38 L. J., M. C. 12 ; 1 L. li., C. C.
161; 19 L. T., N.S. 400; 17 W.
R.208; 11 Cox, C. C. 198.
454
SEDITION.— SEPULTURE.
A foreigner was convicted of
manslaughter at the Central Crim-
inal Court, committed on board
a British vessel, in the river Ga-
ronne, within the boundaries of the
French Empire, about thirty-five
miles from the sea, and at a spot
about 300 yards from the nearest
shore, within the ebb and flow of
the tide : — Held, riglit, inasmuch as
it was a place within the jurisdic-
tion of the Admiralty of England,
which that court had jurisdiction to
try under 4 & 5 Will. 4, c. 36, s. 22.
Ih,
Offences hy British Subjects on
Board Sh^os.^-^BY ^0 & 31 Vict,
c. 124, the Merchant Shipping Act,
1867, 6. 11, " if any British subject
•commits any crime or oifence on
* board any British ship or on board
' any foreign ship to which he does
' not belong, any court of justice
' in her Majesty's dominions which
' would have cognizance of such
' crime or offence, if committed on
' board a British sliip within the
' limits of the ordinary jurisdiction
* of such court, shall have jurisdic-
tion to hear and determine the
' case, as if the said crime or offence
' had been committed as last afore-
' said."
To prove that a ship is a British
ship, it is not necessary to produce
the register or a copy thereof; it is
suflicient to show orally that sJie
belongs to British owners, and car-
ries the British flag. Beg, v. AUen^
10 Cox, C. C. 405— Russell Gur-
ney. Recorder.
Oral testimony as to the position
of a ship at a given time is better
evidence than the production of the
log-book. Ih
XXXVI. SEDinoN.
An indictment for sedition alleg-
ed " that the defendant, amongst
other words and matter, uttered
and then set out several sentences
as though they had been uttered
continuously. The evidence shewed
that they had not been so uttered,
but that the sentences had been se-
lected from different parts of the
speech, other matter intervening
between them: — ^Held, that there
was no variance, and that if any
portions of the speech omitted va-
ried or controlled the sense of those
set out, the onus was upon the de-
fendant to show it. Beg. v. Crotre,
3 Cox, C. C. 123— Piatt.
A prisoner indicted under 11 A
12 Vict. c. 12, may, after demur-
ring to the indictment, if his demur-
rer is overruled, plead over to the
felony. Beg, v. Duffy ^ 4 Cox, C.
C. 24. But see Beg, v. Hendy^ 4
Cox, C. C. 243, and Beg. v. Fadar^
man^ 4 Cox, C. C. 385.
VVhere an indictment containing
counts for sedition, attending a se-
ditious meeting and a riot, the court
refused to quash the indictment, or
compel the counsel for the prosecu-
tion to elect, altliough the judgment
on the last count might be diflerent
from that upon the others. Beg, v.
If'usseU, 3 Cox, C. C. 291— Wilde,
Parke and J^laiile.
The words set out in an indict-
ment for sedition were these, "If
the Queen neglects to recognize the
people, then the people must neg-
lect to recognize the Queen." It
was proved that the word " foi^t"
was used in both instances, and not
" neglect " ; — Held, to be a fatal va-
riance as far as that sentence was
concerned, and that the passage
must be struck out. lb.
XXXVII. Sepulture.
1. Desecration,
{See the Anatomy Act, 2 ^ ^ W%U, 4,
c, 75.)
Bemovtng Dead Bodies,] — ^Taking
up dead bodies, even though for
the words and matter following," | the purpose of dissection, is an in-
SODOMY AND BESTIALITY.
455
dictable offence. Reg, v. Lynn^ 2 T.
R 733 ; 1 Leach, C. C. 497.
Selling the dead body of a person
capitally convicted for dissection,
where dissection was no part of the
sentence, was a misdemeanor at
oommon law ; and in order to sup-
port an indictment for such offence,
It was not necessary that there
should be direct evidence that the
defendant sold the body for lucre
and gain, and for the purpose of be-
ing dissected. Rex v. Cundtck, D.
& R. N. P. C. 13— Graham.
It is an indictable offence against
decency to take a person's* dead
body with intent to sell or dispose
of it for gain and profit. Rex v.
GiUes, R. & R. C. C. 336, n. J.—
Bayley. ^Ajid see Rex v. Duffin^
R & R. C. C. 365.
A master of a workhouse, after
diewing the bodies of deceased pau-
•pers in coffins to their relatives,
caused the relatives to follow other
coffins to the graves, and the ap-
pearance of a funeral to be gone
through. Tlie relatives had not re-
quired that the bodies should be in-
terred without anatomical examina-
tion, according to 2 <& 3 Will. 4, c.
75, 8. 7. The master of the work-
house then sent the bodies to Guy's
Hospital for dissection, and received
therefor sums of money in propor-
tion to the number of bodies sent.
After dissection the bodies were
buried. The jury found that the
master of the workhouse had caused
the appearance of funerals to be
gone through, with a view to pre-
vent the relatives requiring the bod-
ies to be interred without anatomical
examination : — Held, that an indict-
ment charging the master of the
workhouse, in one count, with selling
the bodies, in another with taking
away the bodies for gain to delay the
burial with intent to have them dis-
sected, and in a third with intent
to sell and dispose of them, could
not be sustained, as the master of
the workhouse had lawful posses-
sion of the bodies within 2 & 3 Will.
4, c. 75, 8. 7, and the relatives had
made no request that the bodies
should be interred without anatom-
ical examination. Reg, v. Feist, 8
Cox, C. C. 18 ; Dears. & B. C. C.
590 ; 4 Jur., N. S. 541 ; 27 L. J.,
M. C. 64.
It is a misdemeanor at common
law to remove, without lawful au-
thority, a corpse from a grave in a
burying-ground belonging to a con-
gregation of Protestant dissenters,
and it is no defence to such a charge
that the motive of the person re-
moving the body was pious and
laudable. Reg. v. Sharpe, Dears.
& B, C. C. 160 ; 3 Jur., N. S. 192 ;
26 L. J., M. C. 47 ; 7 Cox, C. C.
214.
XXXVni. Sodomy and Bestial-
ITY.
By 24 & 25 Vict. c. 100, s. 61,
" whosoever shall be convicted of
" the abominable crime of buggery,
" committed either with mankind
" or with any animal, shall be lia-
" able, at the discretion of the court,
" to be 'kept in penal servitude for
" life, or for any term not less than
" ten years." {Farmer provision, 9
Greo. 4, c. 15, s. 15.)
By s. 62, '' whosoever shall at-
" tempt to commit the said abomi-
" nable crime, or shall be guilty of
" any assault with intent to commit
" the same, or of any indecent as-
" sault ujwn any male person, shall
" be guilty of a misdemeanor, and,
" being convicted thereof, shall be
" liable, at the discretion of the
" court, to be kept in penal servi-
" tude for any term not exceeding
" ten years, and not less than five
" years (27 & 28 Vict. c. 47), or to
" be imprisoned for any term not
" exceeding two years, with or with-
" out hard labour. "
By s. 63, " whenever, upon the
" trial, it may be necessary to prove
" carnal knowledge, it shall not be
" necessary to prove the actual emis-
456
SODOMY AND BESTIALITY.
" sion of seed in order to constitute
" a carnal knowledge, but the car-
" nal knowledge sTiall be deemed
" complete upon proof of penetration
" onlv." {Previous promsion^ 9 Geo.
4, c. 31,8. 18.)
By 9 Geo. 4, c. 31, 25 Hen. 8, c.
6, and 5 Eliz. c. 17, were repealed,
and 5y 24 <fe 25 Vict. c. 95, 9 Geo.
4, c. 31, S8. 15, 18, andl Will. 4ifc
1 Vict. c. 85, s. 1, are repealed.
Proof of injectio seminis, as well
as penetration, was essential on an
indictment for sodomy. Hex v.
Duffin, 1 East, P. C. 43*7 ; li. & R.
C. C. 365.
But since 9 Geo. 4, c. 31, s. 18,
the crime is complete, if the jury
is satisfied that penetration took
place. Hex V. Beekspear, 1 M. C. C.
842 ; Bex v. Cozins, 6 C. &P. 351.
It is not allowable to shew that
the prisoner has a general disposi-
tion, or a natural inclination to com-
mit the same kind of offence as that
charged against him. Rex v. Cole,
1 Russ. C. & M. 939.
A maiTied woman who consents
to her husband's committing an un-
natural offence with her, is an ac-
complice in the felony, and,*as such,
her evidence requires confirmation,
although consent or non-consent is
quite immaterial to the offence.
Iteg, V. JeUyman, 8 0. & P. 604—
Patteson.
An indictment for bestiality,
which describes the animal as a cer-
tain animal called a bitch, is suffi-
ciently certain, although the females
of foxes and some other animals are
called bitches, as well as the female
of the dog. Rex v. AUen^ 1 C. &
K. 495-~Tindal.
To constitute the offence of sodo-
my, the act must be in that part
where sodomy is usually committed ;
for, the act in a child's mouth does
not constitute the ofi'ence. Hex v.
Jacobs, R. & R. C. C. 331.
An unnatural connexion with an
animal of the fowl kind was not sod-
omy, before 9 Geo. 4, c. 31, s. 15, a
fowl not coming under the tenn
" beast " : [the words of the 9 Gea
4, c. 31 , s. 15, were " any animal "1 :
and it was agreed clearly not to be
sodomv when the fowl was so small
that its private parts would not ad-
mit those of a man, and were torn
in the attempt. Rex v. Mulreaty, 1
Russ. C. & M. 938.
On an indictment against a pris-
oner charging him with the capital
offence of bestiality, the jury could
not find him guiltv of an assault
under 7 Will. 4 &*1 Vict. o. 85, s.
11 ; but if they acquitted him of
the capital charge he might be de-
tained in custody, and indicted for
a misdemeanor, in attempting to
commit a felony. Reg, \' Eaion^ 8
C. & P. 417— Vaughan, Bolland,
and Patteson.
Indictment as^ainst two, charsjinj;
that they, being in^i-sons of wicked
and unnatural dispositions, did, in
an open and a public place, unlaw-
fully meet together, with the intent
of committing with each other,
openly, lewdly, and indecently in
that public place, divers nasty,
wicked, filthy, lewd, beastly, imnat-
ural, and sodomitical j>ractices and
then and there unla^\•fulh^ wicked-
ly, ojxnily, lewdly, and indecently
did commit with other, in the sight
and view of divers of the liege sub-
jects, in the said public place there
passing, divers such practices as
aforesaid, is bad, in arrest of judg-
ment, for want of a real certainty.
Reg, V. Rowed, 2 G. & D. 518; 3
Q.B. 180; 6 Jur. 396.
Where an adult and a boy of twelve
years of age commit an unnatural
offence, the adult being the j-athic
may be convicted. Reg. v. Allen,
1 Den. C. C. 364 ; T. & M. 55 ; i
C. & K. 869 ; 13 Jur. 108 ; 18 L
J., M. C. 72 ; 3 Cox, C. C. 270.
Where a long period of time,
nearly two years, have elapsed from
the time of committing the offenee
of bestiality before complahit i*
made to the justices, the case vrill
SUICIDES. — THREATENING LETTERS.
457
not be permitted to go to the jury.
Beg, V. Robim, 1 Cox, C. C. 114—
Alderson.
' XXXIX. Suicides and Selp-
Maiming.
An attempt to commit suicide is
a misdemeanor at common law.
Reg. V. Doody, 6 Cox, C. C. 463—
Wi^htman. *
1* he question for the jury is, wheth-
er the prisoner had a mind capable
of contemplating the act charged,
and whether lie did, in fact, intend
to take away his life. lb,
Tlie mere fact of dninkenness is
no excuse for the crime ; but it is a
material fact for the jury to consid-
er, before coming to the conclusion
that the prisoner really intended to
destroy his life. Ih,
Suicide is not murder within 24
6 25 Vict. c. 100, ss. 11 — 15, and
therefore attempting to commit su-
icide is a misdemeanor triable at
quarter sessions. Req, v. Burgess^
L. &. C. 258 ; 9 Cox, C. C. 247 ;
32 L. J., M. C. 55 ; 11 W. R. 96 ;
7 L. T., X. S. 472.
Indictment for murder. Defence,
that the deceased committed suicide.
Verdict guilty, the jury adding
that they believed the act was com-
mitted without premeditation. The
judge refused to receive such a ver-
dict, and directed the jury to say
guiltv or not guilty. Reg. v. Malo-
ney, 9 Cox, C. C. 6— Byles.
A party who maims himself, or
procures another to do it for him,
8o that he mav be better enabled
to beg, or to prevent himself from
being pressed for a soldier, is liable
to fine or imprisonment at common
law. Rex v. Wright^ 1 East, P. C.
396.
So is the party by whom it is ef-
fected at the other's desire. Ih.
XL. Threatening Letters and
Menaces.
1. Statutes, A5T .
2. Demanding Money or Vcduabfes
with Menaces^ 457.
8. Threatening to accuse of Crimea or
with Intent to Extort, 460.
4. Letters threatening to Burn or De-
stroy, 463.
5. Letters threatening to Murder, 464.
6. Threatening to sue for Penalties,
464.
7. Threatenim/ to Publish Defamatory
Matter, 464.
8. Persons IndictaUe, 463.
9. Indictment, 465.
10. Evidence, 466.
1. /Statutes,
4 Geo. 4, c. 54, repealed so much
of the Black Act, 9 Geo. 1, c. 22,
and so much of 27 Geo. 2, c. 15, and
of 30 Geo. 2, c. 24, as related to this
subject; and bg 7 & S Geo. 4, c. 27,
4 Geo. 4, c. 54, was rej^aled so far
as it related to letters threatening to
kill, murder^ burn, and destrog, and
to accessories to such offences, and
rescue of such offenders ; 24 & 25
Vict. c. 95 repeals 4 Geo. 4, c. 54 ;
7 <fc 8 Geo. 4, c. 29 ; 7 Will. 4 & 1
Vict. c. 87, and 10 & 11 Vict. c. 66 ;
24 & 25 Vict. c. 96, is the statute in
force on the subject.
2. Demanding Moneg or ValuahUs,
with Menaces,
By 24 & 25 Vict. c. 96, s. 44,
whosoever shall send, deliver, or
utter, or directly or indirectly
cause to be received, knowing the
contents thereof, any letter or
writing, demanding of any person,
with menaces, and without any
reasonable or probable cause, any
proi)erty, chattel, money, valuable
security, or other valuable thing,
shall be guilty of felony, and, being
convicted thereof, shall be liable,
at the discretion of the court, to
be kept in penal servitude for life,
or for anv term not less than ^yq
years (27 & 28 Vict. c. 47), or to
be imprisoned for any term .not
exceeding two years, with or with-
out hard labour, and with or
458
THREATENING LETTERS.
" witliout solitary confinement, and,
'' if a male under the age of sixteen
" years, with or without whipping."
{Former provisioriy 7 & 8 Geo. 4, c.
29, 8. 8.)
I3y s. 45, " whosoever shall, with
" menace or by force, demand any
" property, chattel, money, valuable
" security, or other valuable thing
" of any person, with intent to steal
" the same, shall be guilty of felony,
" and, being convicted thereof shall
" be liable, at the discretion of the
" court, to be kept in penal servi-
" tude for the term of five years
" (27 & 28 Vict. c. 47), or to beim-
" prisoned for any term not exceed-
" ing two years, w^ith or without
" hard labour, and with or without
" solitary confinement." {Previous
provision^ 7 Will. 4 & 1 Vict. c. 87,
as. 7, 12.)
By s. 49, " it shall be immaterial
" whether the menaces or threats^be
" of violence, injury, or accusation,
" to be caused or made by the of-
" fender, or by any other person."
A letter written to the prosecut-
ors in the following terms ; " Gen-
tlemen, You say that B. O. N. will
accede to the terms proposed, and
send part of the money to any place
that may be named. I must have
Bufiicient means at my disposal, or
all will be lost. I am fully assured
that 20,000Z. will not cover the hor-
rid catastrophe, which would not
only stop your bank for a time, but
perhaps forever, as the books would
be all destroyed. The match, the
most dreadful and last resource, has
been contemplated by the cracks-
man or captain of this most horrid
gang, which I fervently pray to be
relieved from." The letter then,
after pointing out a certain pipe, be-
hind which the money was to be
deposited, proceeded, " If, therefore,
you will send a man you can con-
fide in, and lodge under that pipe
250 sovereigns unseen by mortal
eye, I swear by Almighty God,
most solemnly, that the evil to
which I have alluded shall be avert-
ed. Let the money be lodged to-
morrow, Saturday morning, by half-
past eleven, but not one moment
sooner, and all shall be well with
you ; but if I am at all deceived, io
any possible way, all must fall upon
yourselves " : was a letter demand-
ing money, with menaces, within 7
& 8 Geo. 4, c. 29, s. 8, although the
writer did not hold out any tiireat
that he himself would do any mis-
chief Beg. V. Smith, T. & M. 214;
1 Den. C. C. 510 ; 2 C. & K. 882 ;
14 Jur. 92 ; 19 L. J., M. C. 80 ; 4
Cox, C. C. 42.
The doctrine that the threat hdd
out must be such as would be like-
ly to intimidate a firm nuin, and
not merely a person of a timid dis-
position, must be taken to refer to
the nature of the threat, and not to
the nerves of the party to whom it
is addressed. lb.
The words, without any reason-
able or probable cause, in 7 & 8
Greo. 4, c. 29, s. 8, concerning send-
ing threatening letters, apply to the
money demanded, and not to the
accusation threatened to be made.
Beg. V. Hamilton, 1 O. & K. 212-
Rolfe and Williams.
In a threatening letter, the threat
must be direct and plain. Bet v.
Girdwood, 1 Leach, C. C. 142; 2
East, P. C. 1120.
An anonymous letter stated, that
the writer had overheard certain
persons agree together to do an in-
jury to the person or property of
the prosecutor, to whom the letter
was sent ; and that if thirty sever-
eigns were laid in a particular place,
the writer would give such infor-
mation as would frustrate the at-
tempt : — ^Held, that this was not t
threatening letter within 7 it ^
Geo. 4, c. 29, s. 8, although it ap-
peared that the letter was a mere
device to defraud the prosecutor of
thirty sovereigns. Bex v. Picl^cir^
4 C. & P. 227~Bolland.
It is no answer to a charge of
sending threatening letters, that the
contents would lead the party to
DEMANDING MONEY.
459
suspect who wrote the letter, unless
it Is sliewn that the prisoner did not
mean to cojiceal himself. Hex v.
Wagstaf, R. & R. C. C. 398.
A threatening letter referring, in
the terms of it, to such circumstan-
ces as were plainly intended to de-
note who the writer was, and mak-
ing a demand of a sum of money in
controversy between him and the
prosecutor, which the latter had re-
ceived, and which tJi'e former had
before insisted should be accounted
tor to him, was not a threatening
letter within 9 Geo. 1, c. 22, or 27
Geo. 2, c. 15, although the writer
did not subscribe his name. Hex v.
Hemng, 2 East, P. C. 1116; 1
Leach,* C. C. 445, n.
It is for the jury and not for the
court to determine whether or not
the letter is a threatening one with-
in the statute, and the judge will
not withdraw it from their consid-
eration, unless by no possible con-
struction can it be held to involve a
threat Heg. v. CamitherSy 1 Cox,
C. C. 138— Maule.
The words, witliout any reason-
able and probable cause, in 7 & 8
Geo. 4, c. 29, s. 8, must be taken to
apply to the state of the prisoner's
mind at the time of making the de-
mand; and the jury must look at
all the circumstances for the pur-
pose of. deciding whether at that
time the prisoner bona fide believed
that she or he had reasonable cause.
%. v. Miard, 1 Cox, C. C. 22—
Tindal.
Threatening to expose a clergy-
man who had had criminal inter-
course with a woman in a house of
ill-fame, in his own church and vil-
lage, to his own bishop, to all the
other bishops, and to the Arch-
bishop of Canterbury ; and also to
publish his shame in the newspa-
pers, is such a threat as a man of or-
dinary firmness cannot be expected
to resist, and therefore falls within
the word menaces used in the stat-
ute, lb.
Where a person demanded a shil-
ling from the prosecutor, and, on
being refused, became very abusive,
and threatened to bum up the pros-
ecutor, and then proceeded to make
an attempt to set fire to a stack of
his : — Held, that he was liable to be
indicted for demanding money by
menaces, under 7 Will. 4 & 1 Vict,
c. 87, s. 7. Beg. v. Taylor, 1 F. &
F. 511— Pollock.
To constitute the offence of de-
manding money with menaces, un-
der 24 & 25 Vict. c. 96, s. 45, the
menace or threat must be of a char-
acter to produce in a reasonable
man some degree of alarm or bod-
ily fear, and such alarm must be of
a nature and extient to unsettle the
mind upon which it operates, and
take away that free voluntary ac-
tion which constitutes consent. Heg.
V. Walton, 9 Cox, C. C. 268 ; L. &
C. 288 ; 9 Jur., N. S. 259 ; 32 L.
J., M. C. 79 ; 11 W. R. 348 ; 7 L.
T., N. S. 754.
A threat to imprison a man upon
a fictitious charge is a menace with-
in 24 & 25 Vict. c. 96, s. 45. Beg.
V. Bobert8on,L. & C. 483 ; 10 Cox,
C. C. 9 ; 11 Jur., N. S. 96 ; 34 L.
J., M. C. 35 ; 13 W. R. 101 ; 11 L.
T.,N. S. 386.
A conviction under that section
is good, although the money has
been actually obtained. JTb.
A prisoner was convicted for de
manding money with menaces, with
intent to steal the same. The pros-
ecutor, having spoken to a female
in the street, at night, the prisoner,
a policeman, came up, and told
him he had been talking to a pros-
titute, and that he must go with
him to Bridewell, and that he, the
prosecutor, was under a penalty of
1/. and costs, for talking to a pros-
titute in the streets ; but if he would
give him 5«. he might go about
his business. The prosecutor there-
upon gave him 4^. M.: — Held, that
the conviction was right. lb.
460
THREATENING LETTERS.
3. Threatening to accuse of Onme,
or with Intent to Extort,
By 24 & 25 Vict. c. 96, s. 46,
whosoever shall send, deliver or
utter, or directly or indirectly
cause to be received, knowing the
contents thereof, any letter or
writing accusing or threatening to
accuse any other person of any
crime punishable by law with
death or penal servitude for not
less than seven years, or of any
assault with hitent to commit any
rape, or of any attempt or en-
deavour to commit any rape, or
of any infamous crime as hierein-
after defined, with a view or in-
tent, in any of such cases, to ex-
tort or gain by nieans of such let-
ter or writing any property, chat-
tel, money, valuable security or
other valuable thing from any
person, shall be guilty of felony,
and, being convicted thereof,
shall be liable, at the discretion
of the court, to be kept in penal
servitude for life, or for any term
not less than five years (27 & 28
Vict. c. 47), or to be imprisoned
for any term not exceeding two
years, with or without hard la-
bour, and with or without solitary
confinement, and, if a male under
the age of sixteen years, with or
without whipping ;
" And the abominable crime of
buggery, committed either with
mankind or with beast, and every
assault with intent to commit the
said abominable crime, and every
attempt or endeavour to commit
the said abominable crime, and
every solicitation, persuasion, pro-
mise or threat offered or made to
any i)erson whereby to move or
induce such person to commit or
permit the said abominable crime,
shall be deemed to be an infamous
crime within the meaning of this
act." (JFhrtner provisions^ 7 <fc 8
Geo. 4, c. 29, s. 8, and 10 & 11
Vict. c. 66, 8. 1.)
By s. 57, " whosoever shall ac-
cuse, or threaten to accuse, either
((
((
((
" the person to whom such accusa-
" tion or threat shall be made, or
" any other person, of any of the in-
" famous or other crimes lastly
" hereinbefore mentioned, with the
" view or intent, in any of the cases
" last aforesaid, to extort or gain
" from such person so accused or
" threatened to be accused, or from
" any other person, any property,
" chattel, money, valuable security
" or other valuable thing, shall be
" guilty of felony, and, being con-
" victed thereof, shall be liable, at
" the discrction of the court, to be
" kept in penal servitude for life, or
for any term not less than five
years (27 & 28 Vict. c. 47), or to
" be imprisoned for any terra not
" exceeding two years, with or with-
" out hard labour, and, if a male nn-
" der the age of sixteen years, with
** or without whipj>ing." (iVeuiow*
provision, 10 & 11 Vict. c. 66, s. 2.)
By s. 48, " whosoever, with in-
" tent to defraud or injure any
" other, person, shall, by any unlaw-
" ful violence to or restramt of, or
" threat of violence to or i-estraint
" of, the person of another, or by ac-
" cusing or threatening to accuse
" any person of any treason, felony,
" or infamous crime as hereinbefore
" defined, compel or induce any
" person to execute, make, accept,
" indorse, alter or destrov the whole
" or any part of any valuable seen-
"rity, or to write, impress or affix
" his name or the name of an v other
" person, or of any company, firm,
" or co-partnership, or the seal of
" any body corporate, compauy or
" society, upon or to any jiaper or
" i^archment, in order that the same
" may be afterwards made or con-
'' verted into, or used or dealt with
" as a valuable security, sliall be
" guilty of felony, and, being coo-
" victed thereof, shall be liable, st
" the discretion of the court, Vo be
*' kept in i)enal servitude for lifi?, t*
" for any term not less tlian five
" years (27 & 28 Vict. c. 47),ort^
" be imprisoned for any term ».
THKEATENING TO ACCUSE OF CRIME.
461
"exceeding two years, with or
" without hard labuur, and witli or
" without solitary confinement.
By s. 49, "it shall be immaterial
"whether the menaces or threats
" hereinbefore mentioned be of vio-
" lence, injury or accusation, to be
" caused or made by the offender or
"by any other person.''
On tlie trial of an indictment for
threatening to accuse of an infamous
crime in order to extort money, the
guilt or innocence of the i)arty
flireateued is quite immaterial. Reg,
V. Crackndl, 10 Cox, C. C. 408—
Willes.
Therefore, although the prosecu-
tor may be cross-examined with a
view to sliew that he is really guilty
of the offence imputed to him, yet
no evidence will be allowed to be
given, even in cross-examination,
by another witness, to prove that
the prosecutor is really guilty. Ih,
On an indictment for threatening
to publish certain matter with in-
tent to extort money, it is pot nec-
essary that the matter should be
libellous. Reg, v. Coghkin^ 4 F. &
F. 31 6 — Bram well.
An intent to extort money may
be implied from the circumstances,
and does not require an express de-
mand of money. lb.
But, if it appears that the object
is to comjKjl the delivery of ac-
counts of monies honestly believed
to be due and owing, there is no ev-
idence of the intent. Ih,
A person threatening A.'s father
that he would accuse A. of havmg
committed an abominable offence
upon a mare, for the purpose of put-
ting off the mare, and forcing the
father, nnder terror of the threat-
ened charge, to buy and pay for
her at the prisoner's price, is guilty
of threatening to accuse with intent
to extort money, within 24 & 25
Vict. c. 96, 6. 47. Reg, v. Redman^
10 Cox, C. C. 159 ; 1 L. R., C. C.
12 ; 35 L. J., M. C. 83 ; 14 W. R.
56; 11 Jur., N. S. 960 ; 13 L. T.,
N. S. 303.
Where a prisoner is indicted for
feloniously sending a letter, tlireat-
ening to accuse of an infamous
crime, with intent to extort money,
both the threat and the intent may
be inferred, even against the declar-
ation of the prisoner at the time,
and in the absence of express proof,
from the letter itself, from his pre-
vious and contemporaneous, and
even from his subsequent conduct
and expressions to third parties.
Reg, V. Menage, 3 F. & F. 310—
Martin.
The threatening to accuse, under
7 & 8 Geo. 4, c. 29, s. 8, need not
be a threat to accuse before a judic-
ial tribunal ; a threat to charge be-
fore any third person is enough.
Rex V. Robinson^ 2 jVL <fc Rob. 1 4 ;
2 Lewin, C. C. 273— Patteson.
On the trial of an indictment for
threatening to accuse a person of an
abominable crime, with intent to
extort money, and, by intimidating
the party by the threat, in fiact ob-
taining the money, the jury need
not confine themselves to the con-
sideration of the expressions used
before the money was given, but
may, if those expressions are equiv-
ocal, connect with them what was
afterwards said by the j)risoner
when he was taken into custody.
Reg.y. Kain,S C. & P. 187— Park
and Parke.
Where it was proved that a pris-
oner, to obtain monies, said to the
prosecutor, " If you do not assist
me, I will say you took indecent
liberties with me some time ago " :
— Held, not sufficient to sustain a
count which cliarged that he threat-
ened to accuse the prosecutor of
having attempted and endeavoured
to commit with him the abominable
crime. Reg, v. Norton^ 8 C. & P.
671 — Recorder Law. -
A prisoner was indicted under 7
& 8 Geo. 4, c. 29, s. 8, in a first
count, for feloniously accusing A. of
a certain infamous crime, that is to
say, of having made to the prisoner
a certain solicitation, whereby to
462
THREATENING LETTERS.
move and induce the prisoner to
commit with him, the crime of sod-
omy, with a view to extort and
gain money from him ; second
count, cliarging the same offence
somewhat differently: — Held, that
the evidence was not sufficient to
prove the intent laid. Reg. v. Mid-
dleditch, 1 Den. C. C. 92.
An indictment on 30 Greo. 2, c.
24, for sending a threatening letter,
intending to extort and gain money,
could not be supported by shewing
a letter threatening to accuse the
prosecutor of an unnatural crime, if
ne did not give up a certain bill
drawn by the prisoner, of which the
prosecutor was the holder. Hex v.
Major, 2 East, P. C. 1118; 2 Leach,
C. C. 772.
Sending a letter threatening to
accuse the prosecutor of having
made overtures to the prisoner to
commit sodomy with him, did not
threaten to charge such an infamous
crime as to be within 4 Geo. 4, c.
54, s. 3. Rex v. Hickman, 1 M. C.
C. 34.
On a charge of threatening to ac-
cuse of an infamous crime, it ap-
peared that the prisoner had made
a charge before a magistrate against
the prosecutor of endeavouring to
excite one of them to the commis-
sion of an uimatural offence : — Held,
that the depositions of the prisoners
upon that occasion were admissible
against them. Reg, v. BrayneU, 4
Cox, C. C. 402— Williams.
When before the magistrate the
prisoners were separately cross-ex-
amined as to their being together on
the day when the offence was al-
leged to have been committed, how
they had been occupied, &c., and
their answers were so contradictory
in themselves and so inconsistent
with each other, that the magistrate
dismissed the charge against the
then defendant, and bound him
over to prosecute the prisoner for
endeavouring to extort money by
threats : — Held, that the answers
elicited on such cross-examination
were not admissible. Ih,
Where the charge made by tibe
prisoners was one specifically of an
indecent assault : — ^Held, that it was
for the jury to take into their con-
sideration not only the charge itself,
but the conduct of the prisoners gen-
erally, for the purpose of deciding
what was the nature of the accusa-
tion they intended to prefer. Ih,
Whether the crime of which the
prisoner was accused by the prose-
cutor was actually committed is not
material in this, that the prisoner
is equally guilty if he intended by
such accusation to extort money.
Reg, V. Richards, 1 1 Cox, C. C. 45
— Blackburn.
But it is material in considering
the question whether, imder the cir-
cumstances of the case, the inten-
tion of the prisoner was to extort
money, or merely to compound a
felony. Ih,
Upon an indictment for sending
a letter demanding money, with
menaces, and without reasonable or
probable cause, it appeared that the
prisoner, who had been in the pros-
ecutor's employ as traveller, haa af-
terwards set up in business for him-
self, married, and became the father
of children. There was no evidence
of the prosecutor having indulged
in the slightest familiarity with the
Prisoner's wife, or of the prisoner
aving at any time any ground to
suspect that such had been the case,
ana the prosecutor denied it ; bat
the prisoner sent to him letters im-
puting to the prosecutor adultery
with his wife, that he was the father
of one of his children, stating that
many a man would have sent a
bullet through him, that he was to
refund 44/. The judge left to the
jury whether tlie meaning of the
letters was to denuind a sum of
money, and to menace him with
adultery, or to send the child to the
prosecutor's house; and whethw
there was any reasonable or proh-
THREATENING TO BURN OR DESTROY.
463
able canse for the demand of the
money, or for any of the charges,
cm all of. which questions they
found against the prisoner, and
found him guilty : — ^Held, that the
letters imphed a threat either of
bodily violence, or to charge the
prosecutor with adultery, or to send
the child to his house, and that the
conviction was right. Reg. v. Ghal-
mers, 16 L. T., N. S. 863 ; 15 W. R.
778 ; C. C. R.
4. Letters Threatening to Bum or
Destroy,
By 24 & 25 Vict. c. 97, s. 50,
"whosoever shall send, deliver or
" utter, or directly or indirectly cause
"to be received, knowing the con-
" tents thereof, any letter or writing
"threatening to bum or destroy any
" house, bam or other building, or
"any rick or stack of grain, hay or
"straw, or other agi'icultural pro-
" duce, or any grain, hay or straw,
"or other agricultural produce, in
" or under any building, or any ship
"or vessel, or to kill, maim or
" wound any cattle, shall be guilty
"of felony, and, being convicted
"" thereof, shall be liable, at the dis-
" cretion of the court, to be kept in
" penal servitude for any term not
" exceeding ten years and not less
" than five years (27 & 28 Vict. c.
" 47), or to be imprisoned for any
"term not exceeding two years,
" with or without hard labour, and
"with or without solitary confine-
"ment, and, if a male under the
"age of sixteen years, with or with-
"oiit whipping." {Former pro-
mionsy 4 Geo. 4, c. 54, s. 3, and 10
& 11 Vict. c. 66, 8. 1.)
Sending a letter to A. threatening
to bum a house of which he was
owner, but let by him to, and occu-
pied by a tenant, was not an of-
fence vnithin 4 Geo. 4, c. 54, s. 3.
Heg. V. Burridge, 2 M. <fc Rob. 296
— Maule.
Indictment for sending a threat-
ening letter under 4 Geo. 4, c. 54,
s. 3. First count charged G. with
sending^ to R., and threatening to
bum K.'s houses. It was proved
that R. had only a reversionary in-
terest in these houses. Quaere,
whether G. could be convicted on
that coimt. Reg, v. Grimwade^ 1
Den. C. C. 30 ; 1 C. & K. 592 ; 1
Cox, C. C. 85.
A count charged G. with sending
to R. and threatening to burn the
said houses, laying them as the
property of B., the tenant. It was
proved that G. dropped the letter in
a public road near li.'s house ; that
A. found it and gave it to H., who
opened and read it, and gave it to
E., who shewed it to both B. and
R. : — Held, that this was a sending
withitt 4 Geo. 4, c. 54, s. 3. Ih,
Sending a letter threatening to
bum standing com was not an of-
fence within 4 Geo. 4, c. 54, s. 3.
Reg, V. HiU, 5 Cox, C. C. 233—
Pollock.
An indictment on 4 Geo. 4, o. 54,
s. 3, charging that the prisoner sent
a letter to T. L., threatening to
burn the house of J. R., was bad —
as the threat must be to the owner
of the proi)ei'ty ; and if the letter
was sent to T. L., with intent that
it should reach J. R., and did reach
him, it should have been charged in
the indictment as sent to J. R.
Reg, V. Jones, 2 C. & K. 398 ; 1
Den. C. C. 218 ; Reg, v. Grirmwade^
1 Cox, C. C. 67.
A conviction on 27 Geo. 2, c. 15,
for sending a letter to the prose-
cutor, threatening " to set iire to
his mill, and likewise to do all the
public injury they were able to
him, in all his farms and seteres,"
was wrong, when the prosecutor
had not then any mill to which the
threat of burning would apply ;
(having parted with it three years
before) ; and the threat as to the
farm, &c., not necessarily implying
a burning. Reg, v. Jepson, 2 East,
P. C. 1115.
464
THREATENING LETTERS.
o. Letters threatening to Murder,
By 24 & 25 Vict. c. 100, s. 16,
" whosoever shall maliciously send,
" deliver or utter, or directly or in-
" directlv cause to be received,
" knowing the contents thereof, any
" letter or writing threatening to
*' kill or murder any person, shall
" be guilty of felony, and, being
" convicted thereof, shall be liable,
" at the discretion of the court, to
" be kept in penal servitude for any
" term not exceeding ten years, and
" not less than live years (27 <fe 28
" Vict. c. 47), or to be imprisoned
" for any term not exceeding two
"years, with or without hard la-
" bour, and with or without solitary
" confinement, and, if a male un-
" der the age of sixteen years, with
" or without whipping." {Former
provisions^ 4 Geo. 4, c. 54, s. 3, and
10 & 11 Vict. c. 66,8.1.)
A letter signed, " I am your Cut-
throat," and stating, that if the
person to whom it was sent had his
deserts, he would not live the week
out ; and that the writer would be
with him shortly, and if he made
light of it the writer would ipake
light of him and his, so plainly con-
veys a threat to kill and murder, as
to render it unnecessary to insert
either iunuendos or prefatory allega-
tions in the indictment to explain
its meaning. Jiex v. Boucher, 4
C. & P. 562— Patteson.
The intentionally putting a threat-
ening letter in a place wliere it is
likely to be seen and read by the
Earty to whom it is directed, or to
e found by some other person, and
which is in fact so foimd and con-
veyed to the party, was an uttering
of the letter within 10 <fc 11 Vict,
c. 66, 8.1. Beg, y, Jones, 5 Cox,
C. C. 226— Patteson.
6. Threatening to Sue for Penalties,
Threatening by letter, or other-
wise, to put in motion a prosecution
by a public officer, to recover pen-
alties for selling Fryer's Balsam
without a stamp (wliieli by 42 Geo.
3, c. 36, was prohibited to be vend-
ed without a stamped label), for
the purpose of obtaining money to
stay the prosecution, is not such a
threat as a firm and a prudent man
may not be expected to resist, and
therefore is not in itself an indict-
able ofi:ence at common law, al-
though it is alleged that the money
was obtained ; no reference being
made to any statute which prohilnts
such attempt. JSex v. Southtrion,
6 East, 126 ; 2 Smith, 305.
But it seems that such an offence
is indictable upon 18 Eliz. c. 5, s. 4,
for regulating common informers,
which prohibits the taking of mon-
ey, without consent of court, under
colour of proces;, or without pro-
cess, from any person upon pretence
of any offence against a penal law.
lb.
But no indictment for any at-
tempt to commit sach a statutable
misdemeanor can be sustained as a
misdemeanor at common law, with-
out at least bringing the offence in-
tended \*'ithiu, and laying it to be
against, the statute. lb.
Though if the party so threatened
had been alleged to be guilty of tlie
offence imputed within the statute
imposing the duty and creating the
penalty, such an attempt to com-
pound and stifle a public i)r*.>seco-
tion for the sake of private lucre, in
fraud of the revenue, and against
the policy of the statute, which
gives the penalty as auxiliary to the
revenue, and in furtherance of jnib-
lic justice for example's sake, might
also, ujx)n general principles, have
been deemed a sufficient ground to
sustain the indictment at common
law. Ih,
7. Threatening to pubUsh Def am-
atory Matter.
By 6 & 7 Vict. c. 96, s. 3, '* if
" any person shall publish, or tlireat-
" en to publish, any libel upon anj
" other person, or shall, directly or
INDICTMENT.
465
"indirectly threaten to print or
" publish, or shall directly or indi-
"rectly propose to abstain from
" printing or publishing, or sliall di-
"rectly or indirectly offer to pre-
" vent the printing or publishing of
" any matter or thmg touching any
" other person, with intent to extort
" any money or security for money,
" or any valuable thing from such
" or any other person, or with in-
"tent to induce any person to
"confer or procure for any per-
"son any appointment or office
" of profit or trust, every such of-
" fender, on being convicted there-
"of, shall be liaole to be impris-
"oned, with or without hard la-
"bour, in the common gaol or
" house of correction for any term
"not exceeding three years: pro-
" vided always, that nothing here-
^ in contained shall in any manner
" alter or affect any law now (1843)
" in force in respect of the sending
" or delivery of threatening letters
"or writings."
Counts mider this section, charg-
ing the defendants with unlawfully
oflering to prevent the publishing,
and with threatening to publish
certain matters touching the prose-
cutor, with intent to extoi^ money,
are not supported by evidence, that
they attempted to obtain the money
by leading the prosecutor to be-
lieve that an information would be
laid against him by one G., for an
offence relating to the post-horse
duties, and that they had the means
of preventing the proceedings, and
would prevent it on being paid a
Bum of money. Beg. v. Yates, 6
Cox, C. C. 441.
8. Persons Indictable,
Where a wife wrote a threaten-
ing letter, and the husband carried
it to the party threatened : — Held,
that the husband, though privy to
the writing, was not within 9 Geo.
1, c. 22, and 27 Geo. 2, c. 15, nor
could the wife alone be convicted
unless she wrote and sent it without
Fish, Dig.— 34.
the husband who delivered it being
privv to the contents. Rex v. Ham^
mond, 2 East, P. C. 1119 ; 1 Leach,
C. C. 444.
9. Indictment.
An indictment on 4 Geo. 4, c.
54, s. 5, for demanding money,
must have distinctly shewn by whom
it was demanded. Hex v. Dunkley,
1 M. C. C. 90.
And an indictment on the same
statute by threatening to accuse,
<fec., must have positively shewn
who was threatened. lb.
On an indictment for threatening
to accuse of an infamous crime,
with intent to extort a certain se-
curity for money, it is not necessary
to aver to whom the security be-
longed. Reg. V. lYddeman, 4 Cox,
C. C. 387.
An indictment for sending a
threatening letter must set out the
letter. Rex v. Lloyd, 2 East, P. C.
1122; S. P., Reg. v. Hunter, 2
Leach, CO. 624.
The offence of sending a threaten-
ing letter may be laid in the county
where it is delivered by the post to
the prosecutor. Rex v. &ser, 2
East, P. C. 1125; S. P., Rex v.
Girdwood, 2 East, P. C. 1120; 1
Leach, C. C. 142.
An indictment, charging that a
prisoner "did felonioudy and ma-
liciously, with intent to extort mon-
ey, charge and accuse A. with hav-
ing committed the horrible ^nd de-
testable crime, and feloniously, <jbc.,
menace and threaten to prosecute
the said A.," was not good under 4
Geo. 4, c. 54, s. 3. Rex v. Ahgood,
2 C. <fc P. 436— Garrow.
An indictment for sending a
threatening letter stated that one R.
had lately built and completed a
house; and then charged that the
prisoner feloniously sent to one L. a
certain letter, threatening to bum
the house so built by the said K.
Upon objection taken that the in-
dictment ought to have charged a
sending to K. : — Held, that the in-
466
THREATENING IJETTEEIS.
dictment was bad on that ground.
Eeg. V. Jones^ 2 Cox, C. C. 434 —
C. C. R.
10. Evidence.
Inspection of Letter,'] — If. a party
is indicted for sending a threatening
letter, the court will, on motion of
the prisoner's counsel, as soon as
the bill is found, order that the let-
ter be deposited with the officer of
the court, that the prisoner's wit-
nesses may inspect it. Hex v. Har-
rie, 6 C. & P. 105— Littledale and
BoUand.
Of Sending,'] — A letter, signed
by two initials, as R. R., was a let-
ter without a name subscribed
thereto within 9 Geo. 1, c. 22. Rex
V. BoUnson, 2 Leach, C. C. 749 ; 2
East, P.O. 1110,
The bare delivery of a letter con-
taining threats, though sealed, is
evidence of a knowledge of its con-
tents. Rex V. Girkwood^ 1 Leach,
C. C. 142; 2East,P. C. 1120.
Indictment, with three counts for
three separate letters. It was pro-
posed to prove the sending or all
three : — Held, that evidence of one
onlv was admissible. Reg, v. Ward^
10 Cox, C. C. 42— Byles.
To bring tlie offence of sending a
'threatening letter within 27 Geo. 2,
e. 15, the letter must have been
sent to the person threatened, and
it must have been so stated in the
indictment Bex v. Paddle^ R. &
R. C. C. 484.
But it seems, that sending the
letter to A., in order that he may
deliver it to B., is a sending to B.,
if the letter was delivered by A. to
B. Ih,
K a letter threatening to bum
the premises of A., but directed to
B., is lefl at the gate on a public
highway, with the intention tnat it
should reach as well A. as B., that
was a sending to A. within 4 Greo.
4, c. 54, a 3. Reg, v. Gfrimwade,
1 Cox, C. C. 85 ; 1 Den. C. C. 30.
On an indictment on 27 Geo. 2,
c. 15, for sending a threatening let-
ter, the dropping a letter in a man's
way, in order that he m^ht pick it
up, was a sending of it. lUx t.
Wagstaff, R. & R. C. C. 398.
The sending was within this stat-
ute, although the party saw the
prisoner drop the letter, if the pris-
oner did not suppose the party knew
him, and intended he should not
Ih.
Affixing a threatening letter on a
gate in a public highway, is Aome
evidence to go to the jury of a send-
ing thereof. Reg. v. WiQianu, 1
Cox, C. C. 1 6— Cresswell.
When there is no person in exist-
ence of the precise name which the
letter bears as its address, it is a
question for the jury whether the
party into whose hands it falls was
reallv the one for whom it was in-
tdhded. Reg. v. Carouihen, 1 Cox,
C. C. 138— Maule.
A prisoner was indicted for send-
ing a threatening letter. The only
evidence against him was his own
statement that he should never bare
written it but for W. G. :— Held,
not sufficient. Rex v. Ifotoe^ 7 C. A
P. 268— Abinger.
Of Intent.]— On the trial of an
indictment for threatening to accuse
the prosecutor of an infamous crime
with intent to extort money, it was
proved that the prisoner had gone
up to the prosecutor and said to
hun, " If you do not give me a sov-
ereign I will charge you with an in-
decent assault " : — Held, that inas-
much'as, if the jury believed that
such language had been used by the
prisoner, the intent was manife^
evidence for the prosecution tend-
ing to shew that the prisoner had
made a similar charge two ^eais
before ought not to be admitted.
Reg, V. McDonnell^ 6 Cox, C. C. 153
—Erie.
On the trial of an indictment
for accusing a person of an unnatu-
ral crime with mtent to extort ni(»-
ey — ^the prisoner being a soldier,
TREASON— THE OFFENCE.
467
aod the accusation having been
made while he was on duty as sen-
try—evidence of declarations made
by him on a fbimer occasion, on
coming off guard, that he had ob-
tained money from a gentleman by
threatening to take him to the
guard-house and accuse him of an
unnatural crime, is admissible. Reg,
V. Cooper^ 3 Cox, C. C. 547 — Cres-*
well
The prisoner was proved to hiive
made the accusation in these words,
" I charge tliis man with indecently
assaulting me " : — Held, that it was
a question for the jury — taking into
consideration the prisoner's conduct
throughout the transaction — wheth-
er by those words he did not mean
to allege that the prosecutor had so-
licited him to the commission of an
unnatural offence. lb.
Of Meaning of Letter,'] — If the
terms of a threatening letter are
doubtful as to the exact accusations
the prisoner meant to threaten, his
declarations subsequently made, on
being asked what he meant to im-
pute, are evidence to explain the
meaning of the letter. Bex v. Thick-
er, Car. C. L. 288 ; 1 M. C. C. 134.
The prisoner sent to the prosecut-
w a letter, the language of which
was ambiguous : — Held, that the
prosecutor might be asked what a)>-
peared to him to be the meaning of
the letter. Heg. v. Hendy^ 4 Cox,
C. C. 243— Erie.
Evidence is admissible to shew
that, under the particular circum-
stances, the words in such a letter
have not their ordinary meanuig,
but the meaning imputed to them
upon the record, and therefore the
witness may be asked whether he
understood the meaning to be that
which the record imputed. Ih,
In case of Accessories,] — Where
an accessory after the fact to a
chaise of sending thi'eatening let-
ters, is tried in the absence of the
principal, the letters so written and
sent by the principal are evidence
on the trial. Beg. v. IfansiU, 3 Cox,
C. C. 597.
XLI. Treason.
1. The Offence, 467.
2. Indtctment, Lists of WiineMses,
Jury, Evidence, Thai and Judg-
ment, 468.
1. The Offence.
25 Edw. 3, St, 5, c. 2 {the Statute
of Treasons) ; 1 M. sess. 1, c. 1 ; 36
Geo. 3, c. 7 (made perpetual by 57
Geo. 3, c. 6) ; 5 cfe 6 Vict. c. 51 ; 11
€& 12 Vict.c, 12..
25 JSdw, 3, «/. 5, c. 2,1008 extended to
Ireland by Poyning^s Act, 10 Hen.
7, c. 10, but 36 Geo, 3, c. 7, or 57
Geo, 3, c. 6, did not extend to Ireland,
See O'Brien v. Reg,, 3 Cox, C. C.
360 ; 2 H. L. Cas. 465 ; but now ex-
tend to Ireland by 1\ Sf 12 Vict, c,
12, s. 2.
If in an indictment for treason it
is stated as an overt act, that the
prisoner discharged at the sovereign
a pistol, loaded with powder and a
certain bullet, and thereby made a
direct attempt upon the life of the
sovereign ; the jury must be satis-
fied that the pistol was a loaded pis-
tol,— that is, there was something
in it beyond the powder and wad-
ding ; but it seems it is not necessa- ^*
ry tor them to be satis^ed that )y^'
was actually loaded witi that which
is generally known by tt\e jpame of
a bullet. Reg. v. Oxford^ d C. &
P. 525 — ^Denman, Alderson and
Patteson. See 5 & 6 Vict. c. 51, s.
2. •
To constitute the treason of levy-
ing war against her majesty within
the realm, there must be an insur-
rection, there must be force accom-
panying that insurrection, and it
must be for an object of a general
nature ; and if a person acts as the
leader of an armed body, who en-
ters a town, and their object is
neither to take the town, nor at-
tack the military, but merely to
468
TREASON.
make a demonstration to the magis-
tracy of the strength of their party,
either to procure the liberation of
certain prisoners convicted of some
political offences, or to procure for
those prisoners some mitigation of
their punishment, this, though an
aggravated misdemeanor, is not
high treason. Reg, v. Frosty 9 C.
& p. 129— Tindal, Park and Wil-
liams.
Tlie prisoner is not bound of ne-
cessity to shew what was the object
or meaning of the acts done. The
offence must be made out by those
who make the cliarge. Ih.
It will be treason in a foreigner
resident here, or who is himself
abroad, if liis family resides here, to
aid even his own countrymen in
acts or purposes of hostility, wheth-
er his own sovereign is at enmity or
peace with ours, for it is a breach
of the local allegiance due from
him. Rex Y, Delamotte, 1 East,
P. C. 53.
An apprehension, though ever so
well grounded, of having property
wasted or destroyed, or of suffering
any other mischief not endangering
the person, will afford no excuse for
joining or continuing with rebels.
Rex V. JiP Grototker, 1 East, P. C.
71.
But it is otherwise if the party
joins from fear of death or by com-
pulsion. Rex V. Gordon^ 1 East,
P. C. 71.
An overt act of piracy only may
shew a traitorous mtent against the
king, in treason for adhenng to the
king's enemies, if the indictment al-
leges the intent to be to seifc the
ships of the king as well as his sub-
jects. Rex V. M^vanSy 1 East, P. C.
80 ; 2 East, P. C. 798.
Indictment for high treason in
comy)assing the king's death, and
adhering to his enemies. Overt act,
conspiring with othei*s to send intel-
ligence to the enemy concerning the
disposition of the king's subjects in
case of an invasion. Rex v. Stone,
6 T. K. 627 ; 1 East, P. C. 79, 99.
Any intelligence sent to the ene-
my in order to serve them in shap-
ing their attack or defence, thon^
the purport of it maybe to di^^soMe
them from an invasion, is high
treason. lb.
Though the intelligence is inter-
cepted. Rex v. Hensey^ 2 Ld. Ken.
366 ; 1 Burr. 642.
It is high treason to attempt, by
intimidation and violence, to compd
tha repeal of a law. Riex v. Lord
George Grcrdon, 2 Dougl. 590.
In high treason, the overt act of
one is the overt act of all ; and
therefore a common design must, in
such cases, precede the proof of in-
dividual acts. Reg, v. Bnttmn^ 8
Cox, C. C. 77— Coltman.
2. Indictment, List of Witneues,
Jury, Evidence, Trial cmd Judgment,
85 Hen. 8, c. 2 ; 1 Edw, 6, c. 12,
«. 22 ; 5 4-6 Edw, 6, c. 11, *. 12; 1
^2 P.^ M, c, 10, S8, 7 and 8 ; 7 4r
8 Will, 3, c. 3 ; 7 Anne, c. 21, «. 5 ;
6 Geo, 3, c. 53, «. 3 ; 30 Geo. 3. e.
48; 39 4- 40 Geo, 3, c. 93 ; 54 Geo,
3, c, 146 ; 6 Geo, 4, c. 50, «. 21 ; 5
4* 6 Vict, c, 51, «. 1.
Indictment,'] — Semble, that counts
charging a party with high treason
in " compassing, &c,, the maim and
wounding" of his majesty, and with
" compassing, Ac, the wounding"
of his majesty, are bad. R&t v.
Collins, 5 C. & P. 305-— Bosanquet
and Gumey.
An allegation that the prisoner
indicted for high treason has not
had a true copy of the indictment is
not matter for a plea, but only a
ground for an application for a post-
ponement of the trial. Reg. v.
Burke, 10 Cox, C. C. 519.
The copy of the indictment fur-
nished to the prisoner need not con-
tain a copy of the indorsement of
the finding of the grand jury in or-
der to satisfy the statute, lb.
List of Witnesses,] A person in-
dicted tor high treason is entitled,
INDICTMENT.
469
under 7 Anne, <5. 21, b. 14, to a
copy of the indictment, and a list
of the witnesses for the crown, and
of the jurymen who are to be re-
tarced on the panel, ten days be-
fore his arraignment. JRex Y,Lord
George Gordon, 2 Dougl. 590.
On a trial for high treason, it was
objected, after the jury had been
charged with the prisoner, but be-
fore the first witness was examined,
that the prisoner had no list of wit-
nesses delivered to him. The in-
dictment was found on the 11th of
December, on the 12th of Decem-
ber a copy of it and of the panel of
the jurors intended to be returned
by the sheriif, were delivered to the
prisoner; and on the 17th of De-
cember the list of witnesses was de-
livered to him. The prisoner was
arraigned on the Slst of December.
The objection to the delivery of the
Kstof witnesses was, that the copy of
the indictment and the list of jurors
and witnesses should have been all de-
livered at the same time simul et
semel :— Held, that the delivery of
the list of witnesses was not a good
delivery in point of law, but that
the objection to the delivery of the
list of witnesses was not made in
due time ; and that, if the objection
had been made in due time; the
effect of it would have been a post-
ponement of the trial, in order to
give time for a proj^er delivery of
the list. Heg. v. Frost, 9 C. & P.
163 ; 2 M. C. C. 140 ; 4 Jur. 68.
Description of Witnesses in Lists.^
—Any objection to the description
of the witness in the list of witness-
es must be taken on the voir dire,
and comes too late after the wit-
ness is sworn in chief. Heg, v.
f^ost, 9 C. & P. 183 ; 2 M. C. C.
140; 4 Jur. 53.
The list may properly describe a
party as lately of such a place. Hex
V. Watson, 2 Stark. 1 1 6— -Ellenbor-
ough.
But if, u^wn the examination of
the witness upon the voir dire, it ap-
pears that he has had a different
and later place of residence, the de-
scription will not be sufficient. lb.
A witness was described in the
list of witnesses as " S. S., of the
parish of S. W., in the borough of
N., in the county of M., labourer."
N. was a place with 6,000 inhabi-
tants, and formed only a part of the
parish of S. W., which was a large
parish, extending beyond the bor-
ough of N. : — I^ld, sufficient, and
that it was neither a misdescription,
noT too general. Reg. v. Frost, 9
C. & P. 147— Tindal, Parke and
Williams.
A witness was described in the
list of witnesses as " of Cross-y-Cy-
loy, in the parish of L." The wit- •
ness stated, that he lived near
Cross-y-CIog (which means Cross of
the Cock), and that there were two
public houses, each so called ; and
that his house was between them,
and sixty yards from each. It was
also proved, that there was a cluster
of houses at this place, and that a
witness had directed invoices to
one of them, as Cross-y-Clog : —
Held, that the witness was not
properly described. lb. 150.
A witness was described in the
list of witnesses as " M. J., of P., in
the parish of St. W., in the coimty
of Si., sometimes abiding at the
house of his son, J. J., in the parish
of B., in the said county. The wit-
ness occupied a house at P., in the
parish of St. W., in which his wife
resided, he going to work with his
son, and returning to his house at
P., about three days in every two
months. The son's house was in
the parish of M., and not in the par-
ish of B. : — ^Held, that if the witness
had been described as of P., in the
parish of St. W., that would have
been sufficient ; but that, as the
latter part of the description was
incorrect, it vitiated the whole. lb,
152.
Juries and ChaUenffes.] — If a true
bill is found against a person for
470
TREASON.
hitrh treason, the judge will, on the
application of the counsel for the
"crown, order the sheriff to furnish
the solicitor to the treasury with a
list of the persons to be summoned
on the jury, that a copy of it may
be delivered to the prisoner. Hex
V. ColUm, 5 C. & P. 305— Bosan-
quet and Gumey.
Where the prisoner's counsel
asked that tlie names of the jurors
should be taken from a ballot-box,
instead of being called over in the
order in which they stood in the
panel, whcli was alphabetical, and
this proposition was acquiesced in
by the Attorney-General, the court
allowed the names of the jurors to
. be taken from a ballot-box ; but if
the Attorney-General had objected,
the court would not have granted
the application. Heg. v. Prost, 9
C. & P. 136— Tindal, Parke, and
Williams.
Amendment of Panels,'] — ^The jury
panel, in cases of treason, may be
amended by correcting mistakes
and inserthig a description of the
professions of the jurors. Rex v.
Hardy, 1 East, P. C. 113.
EvidenceJ] — A letter sent by one
of the conspirators, in pursuance of
the common design, with a view of
reaching tlie enemy, is evidence
against all engaged in the same
conspiracy. Rex v. Stone, 6 T. R.
527; 1 East, P.O. 79, 99.'
A paper found in the possession
of one of the conspirators, contain-
ing intelligence proved to have been
collected by the prisoner, which pa-
per was in the handwriting of the
prisoner's clerk, is evidence against
the prisoner. Aliter, of a paper in
the same handwriting not appear-
ing to have any connexion with the
prisoner. lb.
If one overt act is proved by one
witness in the county in which the
trial is had, which gives the grand
jury jurisdiction to mquire, another
overt act of the same species of
treason, proved by another witness
in a different county, will make two
witnesses witliin 7 & S Will. 3, c.
3. Rex V. JelUas, 1 East, P. C. 130.
A conviction of high treason may
be upon the evidence of one witnefis
only, in all cases where there is no
corruption of blood. Rex v. Gaha-
gan, 1 Leach, C. C. 42 ; 1 East, P.
C. 129.
As to evidence of treason, see
Rex v. Borne Tooke^ 1 East, P. C.
60, 69 ; 2 Leach, C. C. 823.
Li a case of high treason or con-
spiracy, the prosecutor may either
prove the conspiracy which renders
the acts of the co-conspiratore^ ad-
missible in evidence, or he may
prove the acts of the different |ier-
sons, and thus prove the conspiracy ;
therefore, in a case of high treason,
where it appeared that a party had
met, which was joined by the pris-
oner on the next day, the oounsd
for the prosecution was allowed to
ask what directions one of the party
gave on the day of their meeting, as
to where they were to go, and for
what purpose. Reg. v. Fr'ott, 9 C.
& p. 149— Tindal, Parke, and Wil-
liams.
Evidence had been given for the
prosecution, that an armed party
had attacked the W. hotel, in which
the magistrates and troops were
stationed. To shew that the inten-
tion of the party was not treason-
able, but was merely to procure the
release of certain prisoners, a wit-
ness was called to prove, that, on
the party arriving at the hotel gate,
they were asked by a special con-
stable what they wanted, when one
of them answered, " Surrender up
your prisoners," It was proposed
to call evidence in reply, that that
was not said at the hotel gate :—
Held, that this was properly evi-
dence in reply. lb. 159.
An alien was indicted for higb
treason, in compassing to depose the
Queen, and in levying war against
the Queen. The material overt acts
of comparing to depose the QQt«fl
were — Ist, conspiring at Dublin, to
PRACTICE AT TRIAL.
471
raise rebellion and levy war within
the realm, and 2ndly, levying war
within the realm at various places.
There was evidence* that he was a
member of the directing body of a
treasonable conspiracy, having for
its object the overthrow of the
Queen's government, and the estab-
lishment of a republic in Ireland.
There was also evidence that he had
planned an attack upon the castle
of Chester, in England, for the pur-
pose of seizing arms there, and con-
veying them to Ireland, with the
view of raising an insurrection there.
Evidence was also given that the
directing body had, in February,
1867, given orders for a rising m
Ireland^ On the 23rd February,
1867, he was arrested while at-
tempting to land in Dublin. On
the oth March, 1867, he being in
custody, an insurrectionary move-
ment, the result of the commands
of the directing body of the con-
spiracy, broke out in several places
in Ireland, and various acts of war
were committed : — Held, that those
acts of war were receivable against
him on the indictment in England.
%. v. M' Cafferty, 1 Ir. K., C. L.
863; 15 W. K. 1022 ; 10 Cox, C.
C. 603.
The rule as to the necessity of
having two witnesses in cases of
high treason considered and discuss-
ed. 76.
Practice at JViai.] — The prisoner
has a right to address the jury, in
addition to the speeches of his coun-
sel Hex V. CoUins, 5 C. & P. 305
— Bosanquet and Gumey.
Where the crown gave evidence
in reply, the witness in reply was
called before the second counsel
for the prisoner addressed the jury,
and the leading counsel for the pris-
oner commented on the evidence in
reply, also before the second coun-
sel for the prisoner addressed the
jury. Reg. v. Frost, 9 C. & P. 160.
The court will not order that
money taken from a prisoner charge
ed with high treason be restored to
him, unless it is made to appear to
the court that the money forms no
part of the proof against him. lb,
132.
Counsel may be assigned for a
prisoner charged with high treason,
upon an application made to the
clerk of the crown, during an ad-
journment of the commissioners,
between the finding of the indict-
ment and the arraignment, or the
prisoner will be allowed, if he wish-
es it, to delay naming his counsel
till he is brought up to be tried. lb.
Prisoners will be allowed copies
of the depositions against them, on
the terms prescribed by 6 <fc 7 Will.
4,c. 114, s. 3. lb.
A person charged with high trea-
son cannot be allowed by the court
before which he is tried to have two
attornies, unless they are partners.
lb.
The court will not order that pa-
pers taken from his house should be
restored to him ; neither will they
order that he shall be furnished
with copies of them. lb, 133.
The only counsel who are recog-
nized by the court, are the two
counsel who are assigned by the
court, and the court will not" take
notice of any assistant counsel. lb.
185.
In charging a jury with a prison-
er, it is not necessary to read the
whole of the indictment at length to
the jury, unless the prisoner or his
counsel wish it ; it is sufficient for
the clerk of the crown to state the
subject of it. lb, 138.
During a trial for high treason,
which was expected to last several
days, the court ordered that the
prisoner's attorney should have ac-
cess to him every day, after the
rising of the court, till 10 p.m., and
before the sitting of the court, from
7 A.M., although it was stated by
the governor of the prison that the
prison was not open for any other
472
TREASURE TROVE.
purpose till half-past 7 a.m., and
was sbut for the night at 9 p.m.
Treason Fel(my.]^The 11 & 12
Vict» c. 12, declares it to be felony
to "compass, imagine, invent, de-
vise, and intend to deprive and de-
pose our lady the Queen," &c., &c.
Iq support of the charge of this of-
fence under the statute, it is suffi-
cient to allege as overt acts that
the defendants conspired, combined,
confederated and agreed to commit
the offence. Mvlcahy v. Reg, (in
error), 3 L. K, H. L. Cas. 306.
Where there are several overt
acts charged in a count, and judg-
ment is given on a general verdict
of guilty on that count, such judg-
ment will be sustained, thougli
, some of the matters alleged as overt
acts may be improperly so alleged,
provided that the count contains
allegations of overt acts that are
sufficiently alleged. Ih,
The allegation, in one count, of
several different overt acts of felony
is not objectionable under 11 & 12
Vict. c. 1 2. Ih,
Under 11 <fc 12 Vict. c. 12, s. 3,
it is sufficient evidence to support a
conviction to shew that the prisoner
was a member of a foreign society
having for its object the several
treasonable objects set out in the
several counts of the indictment,
and also the existence of a domestic
association of similar denomination,
and connected with that abroad;
and then to prove overt acts done
within the venue, in promotion of
those objects, by members of the
association, and it is not necessary
to prove any act of the prisoner
himself done in Ireland, or even
that he was in Ireland during any
part of the period that the associa-
tions were shewn to exist either at
home or abroad. Reg, v. Mearwy^
15 W. R. 1082 ; 1 Ir. R., C. L. 500;
10 Cox, C. C. 506.
The defendants were indicted un-
der the Tl•ea^on Felony Act, 1 ! &
15 Vict. c. 12, in causing to liecuii-
veyed arms and ammunition into
Ireland for the purpose of over-
throwing the established govem-
ment : — Held, that the party selliog
arms, knowing they are to be used
for purposes of insurrection, is guilty
of an overt act of conspiracy. Se-
cret storing of arms, and sendmg
them, under feigned addresses, into
districts where the confederacy ex.
ists, and with the sanction and
knowledge of the confederacy, is
evidence of the offence. Reg. v.
DaviU, 11 Cox, C. C. 676.
XLn. Tbeasube Trove.
Concealing and Apprcpriating,]
— ^In an indictment for conoeslmg
treasure trove from the crown, it is
not necessary to aver that the per-
son concealed it fraudulently. The
words " unlawfully, wilfully and
knowingly," are sufficient. Reg, v.
Thomas, L. &. C. 313 ; 33 L J.,
M. C. 22 ; 12 W. R. 108 ; 9 L T.,
K S. 488.
A., in ploughing, found lai^
rings of old gold of considerable
value, and sold them for brass toB.
for 5«. 6rf., saying where he found
it. B. afterwards found out that
they were gold, and offered them to
a jeweller for sale as gold- Then
6. said he had sold them to C. for
brass. Then B. and C. were at a
bank together, depositing part of
the proceeds for wliich C. had sold
the gold rings ; — Held, that there
was evidence to support a convic-
tion of both B. and C. for knowing-
ly concealing treasure trove from
the crown. Ih,
An indictment for concealii^
treasure trove, averring that the
Queen is entitled to the treasure, i<
good without any averment of any
mquisition before the coroner, or
office found as to the title of the
PROCEDURE AND PRACTICE.
473
Qneen ; and a conviction upon such
an indictment is good without any
evidence as to such matters. Reg.
V. Took, 2 Ir. R., C. L. 36 ; 10 Cox,
C. C. 75 ; 16 W. R. 439.
XLTTT. Pbocedubs and Practice.
1. Indictment, 473.
(a) For what it lies, 478.
(b) Disobeyina Orders of JuMtieeM
and Omers, 474.
(c) Quashina, 475.
(d) Trial wnin Indictment it not
goody 477.
fe^ tinding, 477.
(i) Ignoring, 477.
(g) Premous binding of Prose-
cutor, 477.
fh ) Copy oflneUctment, 480.
({) Venue, 4B\,
Q) Caption, 486.
(k) Several CounU, 487.
0) AstotAeAIleoatums,4Sl,
(m) Desertion of the party ac-
cused, 489.
(n) Allegations of Titne and
Flace, 489.
(o) Name of Party Injured,
490.
(ji) Description of Property or
Instrument, 492.
fqj Value, 493.
(r) Contra Pa^cem and Contra
Formam Statuti, 494.
(s) Of joining Offences and
Electing, 495.
(t^ Time and Mode of raising
Formal Objections, 497.
(u) Amendment, 498.
(y) Nolle Prosequi, 502.
2. Ceiiral Criminal Court, 502.
(a) Jurisdiction, 502.
3. Trial, 503.
(a.) Jurisdiction, 503.
(h) Arraignment and Plea, 504.
(c) Withdrawing Plea of Not
Guilty, 505.
(d) landing in the Dock, 505.
(e) Reading Indictment, 505.
CO Separate Trial, 506.
(g) Right of Acquittal on Indict-
ment of Severed, 506.
(Xa") Postponing or Adjourning,
506.
(i) Illness of Prisoner during
Trial, 508.
Cj^ Trial on a Verdict in a Civil
Case, 508.
(k) Tenderina Bill of Excep-
tions^See Bill of Ex-
CBPTIOH8.
Fish. Dig.— 35.
4. Pleas in Abatement, 509.
5. Pleas of Autrefois Convict and
Acquit, 509.
6. Demurrers, 514.
7. Recognizances, 515.
8. Commissions and Gaol Delivery,
517.
9. ReatoHng Money found on Prison-
ers, 518.
1 0. Contempt of Court, 519.
11. AffidaviU,5\^.
1. Indictment.
(a) For what it lies in general.
An indictment will not lie for a
mere civil injury. Hex v. Storr, 3
Burr. 1698.
As for pulling off the thatch of a
man's dwelling-house. Hex v. At-^
kins, 3 Burr. 1706.
Or for selling, as two chaldrons
of coals, a less quantity. Hex v. Os-
born, 3 Burr. 1697.
That which is declared by statute
to be a misdemeanor cannot be a
felony. Bex v. Walford, 5 Esp, 62
— ^Hotham.
An indictment lies not upon an
act of Parliament which creates a
new offence, and prescribes a par-
ticular remedy. Hex v. Wright, 1
Burr. 543.
A person charsfed with an offence
under an act of Parliament which
is re|)ealed before the time of trial
comes, must not be put upon trial.
Anon., 2 Lewin,C. C. 22— Park.
Where a prohibition and a pen-
alty are contained in the same sec-
tion of a statute, the remedy must
be by proceeding for the penalty ;
but where the prohibition is in one
section, and the penalties are in a
subsequent section, an indictment
will lie. jRc<7. v. Buchanan, 8 Q. B.
883 ; 10 Jur. 736 ; 15 L. J., Q. B.
227.
Acting as an attorney without
having been admitted is a misde-
meanor indictable under 6 & 7
Vict. c. 73, s. 2, althougli a prson
so acting is incapable of maintain-
ing an action for fees, and the so
acting is a contempt of court. lb.
474
PROCEDURE AND PRACTICE.
To sustain an indictment against
a clergyman for refusing to marry
persons who have obtamed a reg-
istrar's certificate for that purpose,
they must have presented themselves
to him to be married at some time
when he could legally have married
them. Heg, v. James, 3 C. & K.
167 ; T. <fc M. 300 ; 2 Den. C. C. 1 ;
14 Jur. 940.
(b) IHsoheying Orders of Justices
and Others.
An indictment lies for disobeying
an order of sessions. JRex v. Bobtn-
son, 2 Burr. 799 ; 2 Ld. Ken. 513.
The 6 & 7 Will. 4, c. 86, s. 20,
which enacts, that the father or
motlier of a child, or, in case of
their illness or absence, the occupier
of the house in which the child
should have been born, shall, with-
in forty-two days after the birth,
give information of the particulars
.thereof to the registrar, upon re-
V quest, is imperative, and the party
disobeying it is liable to an indict-
.ment. Beg. v. Price, 3 P. & D.
.421 ; 11 A. & E. 727 ; 4 Jur. 291.
The quarter sessions of a county
I made regulations as to the expenses
to beallowed in cases of felony , and
by one of them directed that the
taxed bill of costs should be annex-
ed to the order for their payment.
These regulations were confirmed
by a judge, under 7 Geo. 4, c. 64,
8. 26. In a case of felony, the clerk
of assize made out the items of the
costs allowed, and on the other half
of the same sheet of paper wrote the
order for the payment of their
amount. The attorney for the pros-
ecution tore off the first half ot the
paper which contained the items,
and presented the other half to the
V county treasurer for payment. The
treasurer refused to pay:— Held,
that on account of the mutilation
of the order the treasurer was not
indictable for this refusal. Heg. v.
Janes, 9 C. & P, 401 ; 2 M. C. C.
171.
If, on an indictment for disobey-
ing an order of justices, in not
abating a nuisance under the build-
ing act, it appears to have been
founded on an order made in a case
in which the justices had no juris-
diction, the judge at nisi prius will
direct an acquittal, although the de-
fect appears on the record. JRex t.
BoUis, 2 Stark. 536— Abbott \
If there is a positive avermait of
disobedience of an order of a coort
of competent jurisdiction, an indict-
ment is good, without a direct all^a-
tion of uiat which is the foundatioD
of such jurisdiction ; nor can a de-
fendant otherwise avail himself,
either at the trial or elsewhere, but
by shewing a wantof jurisdictianm
the court. JRex v. Afytton, Cald.
536 ; 1 Bott's P. L. 428, n. ; 4 DougL
333 ; 3 Esp. 200, n.
Upon the trial of an indictment
for oisobeying an order of justices,
the recital upon the tsLce of the or-
der of the facts giving the magis-
trates jurisdiction is not evidence of
the existence of such facts ; nor is
the setting out of the order in bee
verba in the indictment a sufiiciait
allegation of the truth of the &cts
recited therein. Bex v. GUket, 2
M. & R. 454; 8 B. & C. 439;3
C. & P. 52.
An indictment lies against the
president and stewards of a friendly
society for disobeying an order of
justices addressed to them to re-ad-
mit a member, though it is sworn
that the power of doing so is not in
the president and stewards, but in a
committee. Rex v. Wade, 1 B. A
Ad. 861.
An indictment against overseers,
on 4 & 5 Will. 4, c. 76, s. 47, for
not accounting to the auditors of a
union upon request, on a day ap-
pointed by him, is bad, unless it
appears that there was some rale,
oraer or regulation of the comnus-
sioners, that the overseers should
account upon such request. Beg. v.
Orossley, 2 P.* D. 319 ; 10 A. &E
132 ; 8 Jur. 675.
On dismissing an appeal agaiitft
INDICTMENT.
475
a poor-rate, it was orderel by the
sessions, that the appellants, " upon
service of the order, or a true copy
thereof, should pay to the respond-
ents 91/. for their costs and charges
by reason of the appeal." An in-
dictment for disobedience of the or-
der stating that a true copy of it
was served on the defendants, who
then and there had notice of the or-
der, is sufficient. Heg, v. Mortlock,
7 Q. B. 459 ; 2 New Sess. Cas. 108 ;
9 Jut. 621 ; 14 L. J., M. C. 153.
In order to prove the ser\'ice of
the copy a witness was called, who
stated, that the order, having been
drawn up from the minutes of the
sessions on paper, and signed by
the clerk of the peace, was read
over by him to each of the defend-
ants, whom he at the same time
served with a true copy of it : —
Held, sufficient; and that it was not
necessary to give notice to produce
the copy served in order to let in
such evidence. lb.
Held, also, that it was no objec-
tion to the order, that the amount of
costs, having in the meantime been
taxed by the clerk of the peace, was
inserted in the order at an adjourn-
ed sessions, as the circumstances of
the case warranted the conclusion
that the parties assented to such a
course. lb.
The general rule that an indict-
ment, and not a mandamus, is the
proper mode of enforcing obedience
bv a ministerial officer to an order
of sessions, does not prevail where
the court sees that the ministerial
officer is put forward merely as a
nominal party, and that other per-
sons are there who are to be com-
pelled to perform the duty. Iie(/,
V. Wood DiUon, 18 L. J., M. C. 218
-Q.B.
Under the 7 <fc 8 Vict. c. 101, an
order in bastardy, invalid on the
feoeof it,was macte, and afterwards
superseded, by the same magis-
trates; and, upon a fresh applica-
tion, a second order was made,
against which there was no appeal :
— Held, that the second order was
valid; and an indictment for dis-
obedience to such order was upheld.
Beff, V. Brisby, 3 New Sess. Cas.
591 ; T. & M. 109 ; 1 Den. C. C.
416; 13 Jut. 520; 18 L. J., M. C.
157.
(c) Qucuhing,
r^cn."!— By 14 & 15 Vict. c.
100, s. 25, " every objection to any
" indictment for any formal defect
" apparent on the face thereof shall
" be taken, by demurrer or motion,
" to quash such indictment, before
" the jury shall be sworn, and not
" afterwards."
The Queen's Bench will not quash
or stay proceedings on an indict-
ment, if there is no obvious defect
upon the face of the indictment.
Meg. V. Bumby, 5 Q. B. 348 ; D.-&
M. 362 ; 8 Jur. 240 ; 13 L. J., M. C.
29.
An indictment for perjury com-
mitted upon an examination before
a surveyor-general of the customs
did not aver that it was prAerred
under the direction of the conmiis-
sioners, under 3 & 4 Will. 4, c. 53,
s. 112, and a motion was made to
quash the indictment or to stay pro-
ceedings, upon an affidavit that
such direction had not been given.
The court refused to interfere sum-
marily, lb.
Two indictments, the one for mis-
demeanor, the other for felony, had
been removed into the Queen's
Bench. The court refused to quash
them upon an affidavit stating that
they both related to the same trans-
action. Reg, V. Stockley^ 2 G. ifc D.
728 ; 3 Q. B. 238.
Where a clear defect of jurisdic-
tion appears on the face of an in-
dictment, or is shewn by affidavit,
the court will, on the application of
a defendant, quash the indictment
after he has pleaded. In a doubtful
case the court will exercise its dis-
cretion, and leave him to his rem-
edy by writ of error. Reg. v.Bieane,
4 B. & S. 947 ; 9 Cox, C. C. 433 ;
476
PROCEDURE AND PRACTICE.
10 Jur., N. S. 724; 83 L. J., M. C.
115 ; 9 L. T., N. S. 719.
A rule to quash an indictment
for informality at the instance of
the prosecutor, is absolute in the
first instance, although the defend-
ant has removed it by certiorari,
and has not yet appeared and plead*
ed. Reg, v. Stowell, 1 D., N. S. 320 ;
5 Jur. 1010— B. C.
An order of quarter sessions,
brought up by certiorari, appeared
to be an order quashing an indict-
ment containing counts for forcible
entries, assaults and a riot : — ^Held,
first, that the sessions, having juris-
diction over the subject-matter of
the indictment, had jurisdiction to
quash it. Reg, v. WiUon^ 6 Q. B.
820 ; 1 New Sess. Cas. 427 ; 8 Jur.
1069.
Held, secondly, that the court
would not inquire, on this proceed-
ing, whether the indictment was
properly quashed ; but that the
proper way of raising such a ques-
tion was by a writ of error. Ih,
Bu# an indictment for forgeiy
found at the quarter sessions is a
nullity, and therefore, where indict-
ments for forging requests for the
delivery of goods had been found at
the quarter sessions, and transmitted
to the assizes, the judge ordered that
they should be quashed and new
indictments prepared at the assizes.
Reg. V. Rig^, 8 C. & P. 770— Ers-
kine.
The court refused to quash upon
motion an indictment for selling by
false weights. R&a v. CrookeSy 3
Burr. 1841.
Or an indictment against several
for entering a lead mine and carry-
ing away lead, on the ground that
it was a mere trespass. Rex v.
Johnston, 1 Wils. 325.
But an indictment for converting
a house into an hospital for taking
in and delivering lewd, idle and
disorderly unmarried women, was
quashed. Rex v. Macdwiald, 3
Burr. 1645.
Tlie court will not on the appli-
cation of the defendant, quash an
indictment for perjury. An indict-
ment cannot be quashed in part
Reg, v. Withers, 4 Cox, C. C. 17.
Where an indictment at oommon
law for disobepng an order of
sessions for the maintenance of a
bastard child, was defective, but
only on points which rendered it
bad on demurrer, the court refused
to interfere by quadiing it. JSeg,
V. Taylor, 9 D. P. C. 600 ; 5 Jur.
679.
«
Terms.'] — ^Terms may be imposed
on a prosecutor before^ he is allowed
to quash his own indictment. Bex
V. Webb, 3 Buxr. 1468 ; 1 W. BL
460.
After judgment on demurrer, an
indictment cannot be quashed at
the instance of the proBecutor. Beg.
V. Smith, 2 M. & Kob. 109— Colcr
ridge.
An indictment against a defend-
ant, standing first in order in the
paper, was moved to be quadied
on the usual terms ; but the court
only allowed it to be quashed on
disclosing the name of the prose-
cutor, and that the substituted in-
dictment should stand in the same
situation as the first would have
done. Rex v. Glenn, 3 B. <& A
373.
The court will not quash a de-
fective indictment on motion of the
prosecutor, after plea pleaded, be-
fore another good indictment is
found. Rex v. Wgnn, 2 East, 226.
A person who has pleaded to an
indictment which is invalid, on ac-
count of its having been found
upon the testimony of witneseeg
not duly sworn to give evidence,
may be required to plead to another
indictment for the same ofience,
without the first indictment being
quashed by the court. Rex v.
Chamberlain, 6 C. & P. 93— little-
dale.
A., being indicted for perjury at
the spring assizes, 1843, at those
assizes entered into recognizance?
INDICnVIENT.
477
to try at the summer assizes, 1844;
but it being discovered before that
time that the indictment was de-
fective, another indictment was pre-
fened and found at those assizes,
on which the prosecutor wished the
defendant to be tried : — ^Held, that
the defendant was entitled to have
the first indictment disposed of be-
fore he could be tried on the sec-
ond; but the judge quashed the
first indictment upon the terms of
Uie prosecutor paying the defend-
ant his costs of the traverse and re-
oogmzance, and the defendant pro-
ceeding to trial on the second in-
dictment without traversing. Reg,
T. Durm, 1 C. & K. 730— Wight-
man.
(d) Trial when Indictment is not
good,
A judge may refuse to try an in-
dictment clearly bad in point of law.
An indictment for perjury, not aver-
ring the matters falsely sworn to be
material, nor shewing them to be so,
is within this authority. Rex v. Tre-
»mn, 5 D. & R. 413 ; Rex v. Tre-
meame, 5 B. & C. 761 ; R. &. M.
147 ; S, P., Rex v. Hepper. R. & M.
210.
Counsel are not allowed to ar-
pie at length the invalidity of an
mdictment for the purpose of induc-
ing the court to refuse to try it.
But it is sometimes convenient for
counsel to suggest a point on which
an indictment is clearly bad, to save
the time of the court. Rex v. Ahra-
ham, 1 M. & Rob. 7— Tenterden.
A judge at Nisi Prius has no ju-
risdiction to try an indictment for
perjury at common law found at the
quarter sessions, and removed by
certiorari into the Queen*s Bench;
an indictment so found being void,
Sex V. Haynes^ R. & M. 298—-
Gaselee.
(e) Finding,
An indictment consisting of two
counts, one for a riot, indorsed by
the jury ignoramus, the other for
an assault, returned billa vera, is
good. Rex V. .FVeldhouse, Cowp.
325.
An allegation in an indictment,
'^that at the general quarter ses-
sions of the peace holden at U., in
and for the county of M., on Mon-
day, the 10th of July, 1826, before
certain of his majesty's justices of
the peacQ assigned <$bc., a certain bill
of indictment against S. H. 6. was
duly preferred and found," is only
proved by a regular record of the
indictment and caption ; and an ex-
amined copy of the mere indict-
ment without any caption, together
with the minute book of the ses-
sions, produced by the deputy clerk
of the peace, and from which he
reads entries in his own handwrit-
ing shewing the time and place of
holding the sessions, is not sufficient,
although no record in fact has been
drawn up. Rex v. Smith, 8 B. & C.
341.
(f ) Ignoring.
If the grand jury at the assizes or
sessions has ignored a bill, they can-
not find another bill against the
same person for the same ofience at
the same assizes or sessions ; and if
such other bill is sent before them
they should take no notice of it.
Reg, V. Humphreys, Car. & M. 601
— Patteson ; S, P., Reg, v. Austin, 4
Cox, C. C. 385 ; see contrk, Reg. v.
Newton, 2 M. & Rob. 503— Wight-
man.
But a prisoner, who had been ar-
rested in Canada under the Colonial
Arrest Act, 6 <fc 7 Vict. c. 34, s. 5,
upon a charge of burglary, for which
the bill was ignored, was allowed
to be arraigned upon another charge.
Reg. V. PhiUips, 1 F. & F. 105^
Erie.
(g) Previous binding of Prosecutor,
By 22 & 23 Vict. c. 17, s. 1, " no
" bill of indictment for perjuiy, sub-
" omation of perjury, conspiracy,
" obtaining money or other proper-
"ty by false pretences, keeping a
478
PROCEDURE AND PRACTICE.
gambling house, keeping a disor-
derly house, and any indecent as-
sault, shall be presented to or found
by any grand jury, unless the pros-
ecutor or other person presenting
such indictment has been bound
by recognizances to prosecute or
give evidence against the person
accused of such offence, or unless
the person accused has Ijeen com-
mitted to or 'detained in custody,
or has been bound by recogniz-
ance to api)ear to answer to an
indictment to be preferred against
him for such offence, or unless
such indictment for such offence,
if charged to have been commit-
ted in England, be preferred by
the direction or with the consent
in writing of a judge of one of
the superior courts of law at
Westminster, or of the attorney-
general or solicitor - general for
England, or unless such indict-
ment for such offence, if charged
to have been committed in Ire-
land, be preferred by the direc-
tion or with the consent in writing
of a judge of one of the superior
courts of law in Dublin, or of the
attorney-general or solicitor-gen-
eral for Ireland, or (in case oi an
indictment for perjury) by the di-
rection of any court, judge or pub-
lio functionary authorized by 14 &
15 Vict. c. 100, to direct a prose-
cution for perjury."
By 8. 2, " where any charge or
complaint shall be made before any
one or more justices of the peace
that any person has committed
any of the offences aforesaid with-
in the jurisdiction of such justice,
and such justice shall refuse to
commit or to bail the person
charged with such offence to be
tried for the same, then in case
the prosecutor shall desire to pre-
fer an indictment respecting the
offence, it shall be lawful for the
justice, and he is required to
take recognizance of such pros-
ecutor to prosecute the charge or
complaint, and to transmit such
" recognizance, information and de-
" positions, if any, to the ooiut in
" which such indictment ought to
'' be preferred, in the same manner
" as such justice would have done
'^ in case he had committed the per-
'^ son charged to be tried for sach
" offence.*'
•
Vexatious indictments^ — ^The 30
& 31 Vict. c. 35, ss. 1, 2, ".Umit
" the operation of the 22 & 23 Vict
"c. 17, as to the presentment of
" bills of indictment mentioned in
^^ this act, containing different
" counts."
It is sufficient if the consent of
the judge to the prosecution is giv-
en in writing; and no previous
summons of or notice to the party,
or even an affidavit of the facts, is
necessary. Reg. v. Bray^ 3 6. & S.
255 ; 9 Oox, C. C. 215 ; 32 L. J., M.
C. 11; 11 W.R. 7; 7L.T.,N.&
248.
The court will not interfere with
the exercise of the discretion of the
judge under this act. Ih.
It is not necessary that JJbe indict-
ment should aver that the conditions
imposed by 22 & 23 Vict, c 17, s.
1, had been performed ; e.g., that
it had been preferred by the direc-
tion or with the consent of a judge,
or of the attorney or solicitor-gener-
al. Knawlden v. Reg. (in error), 5
B. & S. 532 ; 9 Cox, C. C. 483 ; 10
Jur., N. S. 1177 ; 33 L. J., M. C
219 ; 12 W. R. 957 ; 10 L. T., N.
S. 691.
Three persons were severally
bound by recognizances to appear
at the next session of the Central
Criminal Court, and there surren-
der themselves, and plead to such in-
dictment as might be found against
them for or in respect of a chai^
of conspiracy to cheat and defraud.
The prosecutors were also hovsA
over to appear at such nest session,
and to prefer, or cause to be prefer-
red, a bill of indictment against the
persons accused of the offence rf
conspiracy, and duly to prosecute
INDICTMENT.
479
Bach indictmeDt and give evidence
thereon. At the next session an in-
dictment was preferred and found,
and the defendants surrendered;
hut m consequence of the absence
of a material witness for the prose-
cation the trial was put off, and the
lecognizances duly respected until
the next session. Before the next
session the solicitor-general directed
an indictment for a conspiracy to be
preferred against the three defend-
ants and a fourth person, and a sec-
ond indictment was preferred and
found against them all, upon which
the original defendants appeared,
hat refused to plead. A plea of
not guilty was entered for them,
and they were found guilty and
sentenced : — Held, that the indict-
ment was preferred with proper au-
thority, and the recognizances du-
ly entered into, as the charge on
which the defendants were tried was
the same as that to which the rec-
ognizances related, and those recog-
nizances were not exhausted by the
first indictment being preferrea and
tiiie defendants surrendering. lb.
The provisions of the above stat-
ute must be complied with in re-
spect to every count of an indict-
ment to which they are applicable,
and any count in which they have
not been complied with must be
quashed. Beg, v. Fuidge^ L. &i C.
890 ; 9 Cox, O. C. 430 ; 10 Jur.,
N. S. 160 ; 33 L. J., M. C. 74 ; 12
W. R. 351 ; 9 L. T., N. S. 777.
An indictment contained two
counts for obtaining money by false
pretences on two several occasions,
the requirements of the above stat-
ute having been complied with in re-
spect of one of the cases only. The
prisoner refused to plead, and a plea
of not guilty was entered by the di-
rection of the court. Evidence
was given upon each count, and
the prisoner was convicted upon
each : — ^Held, first, that the second
count ought to have been quashed,
and that therefore the conviction
upon that count could not stand.
Held, secondly, that, as evidence
was received which would have
been inadmissible upon the trial of
the first count alone, the conviction
upon that count also was bad. Ih,
A prosecutor who has required
the magistrates to take his recogniz-
ances to prosecute, on a charge
within the 22 & 23 Vict. c. 17, s. 2,
when the magistrates have refused
to commit the person charged, must
either go on with the prosecution
or have his recognizances forfeited,
as it would defeat the object of the
statute if he was allowed to move to
have his recognizances discharged.
Reg, v. Hargreavesy 2 F. & F. 790
— Keating.
A vestry was empowered, by act
of parliament, to indict any person
who should stop or impede rights
of way in the parish, and to take
such other proceedings for opening
thereof as should appear expedient :
— Held, that the vestry must indict
in the name of the Queen, and sue
in equity in name of the Attorney-
general, and that they could not
proceed in their own name. Ber»
rrumdsey Vestry v. Brown^ 35 Beav.
226.
A magistrate, if he refuses to
commit or bail the person charged,
is bound, under 22 <fc 23 Vict. c.
17, s. 2, to take the recognizances
of the prosecutor, if the information
discloses any of the offences men-
tioned in the statute ; but he has a
discretion to refuse if no indictable
ofience is disclosed. Wasan^ Ex
parte, 4 L. R., Q. B. 573 ; 38 L. J.,
Q.B.302; 17 W. R. 881.
Where, therefore, the ofience
charged is that of conspiracy, by
three persons, two of whom are
members of the House of Lords, to
deceive the House, and so to pre-
vent the due course of justice and
injure and prejudice a third person,
by making statements in the House
which they knew to be false, the
480
PROCEDURE AND PRACTICE.
magistrate is right in ref using to
take any proceedings : as members
of either House of Parliament are
not civilly or criminally liable for
any statements made in the House,
nor for a conspiracy to make such
statements. Ih,
(h) Copy of Indictment,
A prisoner upon his acquittal is
not entitled ex debito justitise to a
eopy of his indictment. Rex v.
Brangan^ 1 Leach, C. C. 27.
Without an order of the court.
Morrison v. Kdly, 1 W. Bl. 385.
A prisoner indicted for felony is
not entitled to a copy of the indict-
ment found against him, or to a
copy of the jury panel, or to copies
of the panels returned at former ses-
sions of the court. Reg. v. Mitch-
eU, 8 Cox, C. C. 1.
Where the ap}:^ication is opposed
by the attorney-general, the court
will not order a party indicted for
embezzlement to be furnished with
a copy of the indictments found
against him, though they are very
voluminous and contain a great
many counts ; but in such case the
court will order the accused to be
furnished with a full bill of particu-
lars. Reg. V. Hughes y 4 Cox, C. C.
445.
A prisoner charged under 11 &
12 Victf c. 12, is not of ri^ht enti-
tled to a copy of the indictment,
nor will the court exercise its discre-
tion in his favour by awarding him
a copy ex gratia. Ih.
But he is so entitled in cases of
misdemeanor as a matter of right,
without a previous application to
the court. Evans v. Philips, 2
Selw. N. P. 952 ; 1 Phil. Evid. 407.
A prisoner is entitled to a copy
of liis indictment to enable him to
plead autrefois acquit. Rex v.
Vandercomb, 2 Leach, C. C. 711 ; 2
East, P. C. 519.
A copy of an indictment is neces-
sary on the trial of an action for
malicious prosecution ; and the
court will not entertain the question
whether it was obtained l>v fraud.
Caddy v. Barlow, 1 31. & U. 275.
If a plaintifl*, in an action tor a
malicious prosecution, oifers to prove
at the trial the original record of
the indictment and acquittal, or a
true copy thereof, such evidence
must be received, though there was
no order of the court, or fiat of the
attorney-general, allowing the plaint-
iff a copy of such recom ; but the
officer, who without such authority
produces the record, or gives a copy
of it to the party, is answerable lor
the contempt of court in so doing :
and the judge at nisi prins will not
compel him to produce the recoid
in evidence, without such authority.
LegaU v. ToUervey, 14 East, 302.
Where a party suins for a nudi-
cious prosecution had obtauied a
copy of the indictment by virtue of
the attomey-generaPs fiat, granted
under a misstatement as to the view
entertained by the judge before
whom the indictment was tried, the
court refosed to stay the proceed-
ings, or to prevent the plaintiff from
using on tne trial the copy so ob-
tained. Browne v. Cumndng, 5 M.
ifcR. 118; lOB. AC. 70.
On an indictment on the prosecu-
tion of a private individual for keep,
ing a common gaming-houee, ti^
solicitor of the treasury was allow-
ed to have a new record of nisi pri-
us engrossed, and the postea and
verdict indorsed from the judge's
notes, on an affidavit that the pos-
tea could not be found, and that
the solicitor of the treasury was in-
structed by the secretary of state to
ask for the judgment of the court*
Rex V. Oldjield, 3 B, & Ad. 659, n.
Where a party has been tried at
a court of quaiter sessions, which
has previously lapsed for want of
due adjournment, he has a right to
have a record of the proceedings
made up by the clerk oi the peace,
although the object of the applica-
tion is to enable him to support a
plea of autrefois convict Sfx t.
Middlesex {Justices), 3N.&K 110.
ETOICTMENT.
481
A prosecutor of an indictment for
misdemeanor may obtain the usual
crown office certificate of his bill
haviDg been found, for the purpose
of taking out a judge's warrant
against the defendant, without ob-
taining an office copy of the indict-
ment. Bex y. Redfem^ 2 A. i& E.
387 ; 4 K & M. 198.
(i) Venue,
Statutes,]'-By 14 & 15 Vict. c.
100, s. 23, ^' it shall not be necessa-
" ry to state any venue in the body
" of any indictment, but the coun-
" ty, city or other jurisdiction nam-
" ed in the margin thereof shall be
" taken to be the venue for all the
" facts stated in the body of such
" indictment : provided, that in cas-
" 68 where local description is or
" shall be required, such local de-
"wription shall be given in the
" body of the indictment ;
" Provided also, that where an
"indictment for an offence, com-
"mitted in the county of any city
" or town corporate, shall be pre-
" ferred at the assizes of the adjoin-
"ing county, such county of the
"city or town shall be deemed
"the venue, and may either be
"stated in the margin of the in-
"dictment, with or without the
" name of the county in which the
" offender is to be tried, or be stat-
" ed in the body of the indictment
" by way of venue.
And by s. 24, " no indictment
" for any offence shall be held in-
" sufficient for want of a proper^ or
" perfect venue."
As to jurisdiction of the Central
Criminal Court ^ see 4 & 5 Will. 4,
c. 36 ; 9 & 10 Vict. c. 24, s. 4 ; of
Bormgh Courts, see Q & 7 Will. 4,
c. 105.
GeneraUy,'] — It was sufficient to
all^ a county as a venue in an in-
dictment, without the addition of
the parish, vill or other place. Meg.
V. Gompertz, 9 Jur. 401 ; 14 L. J.,
M. C. 118— B. C— Williams.
Fish. Dig.— 36.
In an indictment for a misde-
meanor, a count containing no state-
ment of venue, either by reference
or otherwise, was bad at common
law after verdict, though a venue
was stated in the margin of the in-
dictment. Meg. V. 0^ Connor, 5 Q,
B. 16 ; D. & M. 761 ; 7 Jur. 719 ;
13 L. J., M. C. 33.
The statement of venue in the
margin implies only that the indict-
ment is found by a grand jury of
the county nam^, not (as in civil
cases) that the complaint is laid as
arising within the county. lb.
Where, in an indictment, after
describing the defendant as " of the
parish of A. in the county of B.,"
the offence is laid to have been
committed " at the parish aforesaid,"
omitting any statement of county,
this statement of the venue, if de-
fective, was cured by 7 Geo. 4, c.
60, s. 20, after verdict, the case
having been tried by a jury of the
county first named. Meq. v. Al-
bert, D. & M. 89 ; 5 Q. B. 37 ; 7
Jur. 741; 12 L. J., M. C. 117.
A prisoner was a travelling sales-
man, whose duty it was to go into
the county of D. every Monday to
sell goods and receive money for
them there, and return with it to
his master in N. every Saturday.
He received two sums of money
for his master in D., but never re-
turned to render any account. Two
months afterwards he was met by
his master in N., who asked him
what he had done with the money.
The prisoner said he was sorry
for what he had done; he had
spent it : — Held, that he was rightly
indicted in N., there having been
evidence to go to the jury of an
embezzlement in N. Meg. v. Mur-
dock, 2 Den. C. C. 298 ; T. & M.
604.
An indictment charged a defend-
ant with obtaining, by false preten-
ces, a post-office order. It was
proved that the prosecutor, at the
request of the prisoner, transmitted
through the post a letter containing
482
PROCEDURE AND PRACTICE.
a post-office order : — ^Held, that the
defendant was properly tried in the
county in which that letter was
posted, though it was received by
the prisoner in a different county.
Reg, V. Jones ^ 4 Cox, C. C. 198 ; 1
Den. C. C. 551.
An information at common law
for a conspiracy between the cap-
tain and purser of a man-of-war,
for planning and fabricating false
vouchers to cheat the crown (which
planning and fabrication were done
upon the high seas), it is well tria-
ble in Midfflesex, upon proof there
of the receipt by the commissioners
of the navy of the false vouchers
transmitted thither by one of the
conspirators through the medium of
the post, and the application there
of a third person, a holder of one of
such vouchers (a bill of exchange),
for payment, wliich he there receiv-
ed. JRexv, BrUaCy 4 East, 164.
In BoroughsS[ — Whei*e an offence
is committed in a borough which is
situate partly in one county and
partly in another, the offence is tri-
able in either county, under 14 <fc
15 Vict. c. 55, s. 19. Reg. v. (xclU
lant, 1 F. & F. 517— Pollock.
Since the 5 & 6 Will. 4, c. 76,
all offences committed in Bristol,
and the cities and towns named in
schedule C, are triable at the assi-
zes for Gloucestershire, and the
other counties named in that sched-
ule ; and the jurisdiction of the as-
sizes is not affected by the grant of
a recorder and a quarter sessions in
such cities or towns. Reg, v. Bdl-
den, 8 C. & P. 606— Patteson.
If a felony is committed in that
part of the county of a town which
has been added to it by the Bound-
ary Act, 2 & 3 Will. 4, c. 64, and
the Municipal Corporations Act, 5
& 6 Will. 4, c. 76, it is triable in
the county of the town. Rex v.
PiUer, 7 C. <fc P. 337— Coleridge.
In Counties,^ — Three were in-
dicted for feloniously cutting and
wounding. The venue was laid in
Glamorganshire, and the indictment
was preferred and tried at the as-
sizes for that countv. The offence
was committed on tx>ard an Amer-
ican ship anchored in the Penarth
Roads, in the Bristol Channel, three
quarters of a mile from the coast of
Glamorganshire, at a spot never
left dry by the tide, but within a
quarter oi a mile from the land
which is left dry. The place in
question is situated between the
shore of the county of Glamorgan
and two islands, which islands have
always been treated as part of the
county of Glamorgan. It was also
about ten miles from the opposite
shore of Somersetshire. The Penarth
Roads are ninety miles from the
mouth of the Channel : — Held, that
the part of the sea where the vessel
was when the offence was commit-
ted formed part of the bodv of the
county of Glamorgan. Ileg, v.
Cunningham, Bell, C. C. 72 ; 5 Jnr.,
K S. 202 ; 28 L. J., M. C. 66 ; 7
W. R. 179 ; 32 L. T. 287 ; 8 Cor,
C. C. 104.
A., by means of false pretences
contained in a letter written and
posted by him in the coimty of C,
received in the same county the
money obtained by it, which was
sent to him by the prosecutor in a
letter. The letter containing the
false pretences was received by the
prosecutor in the county of the bor-
ough of C, and the letter enclosing
the money was posted in that coun-
ty. A. was indicted for obtaimng
the money by means of the false pre-
tences contained in his letter : — ^Ileld,
that the venue was well laid in the
county of the borough of C. Beg-
V. Leech, Dears. C. C. 642 ; 2 Jnr^
N. S. 428 ; 25 L. J., M. C. 77.
Near Boundaries of adjoining
Counties,'] — ^By 7 Geo. 4, c. 64, a
12, " for the niore effectual prosecu-
"tion of offences committed near
" the bonn^bme^ of counties, or part-
^^ ly in one county and pntif in ad-
INDICTMENT.
483
" other, it is enacted, that where
**any felony or misdemeanor shall
" be committed on the boundary or
" boundaries of two or more coun-
" ties, or within the distance of 500
•' yards of any such boundary or
" boundaries, or shall be begun in
" one county and completed in an-
" other, every such felony or misde-
"meanor may be dealt with, in-
" quired of, tried, determined and
" punished in any of the said coun-
" ties, in the sam^e manner as if it
"had been actually and wholly
" committed therein. "
This means a distance of 500
Yards measured in a direct line
from the border, and not 500 yards
by the nearest road. Meg, v. Wood^
5 Jur. 225— Parke.
An indictment at quarter sessions
for the borough of S., stated that
A., late of the parish of M., in the
county of N., and in tlie borough
of S., at the parish aforesaid, in the
borough aforesaid, committed an
assault. The marginal venue was
" borough of S. " The parish is en-
tirely in the county of N., the rest
of the borough in the county of L.
The defendant removed the indict-
ment by certiorari, and a venire was
awarded into tlie county of L.,
where he was tried and convicted.
The offence was committed in a
part of the parish which is in the
borough, and within 500 yards
from the boundary of L. : — Held,
that the venue, as laid, was in N. ;
and, notwithstanding the proceed-
ings under the certiorari, that the
trial was without jurisdiction, and
judgment was arrested. Reg, v.
MtcheU, 2 Q. B. 636 ; 2 G. & D.
274 ; 6 Jur. 505.
Held, also, that for the trial to
be good in either county, under 7
Geo. 4, c. 64, s. 12, the oifcnce
must have been laid and tried in
one and the same county. lb,
A felony committed in a county
of a town, the style of which is
*' town of Kingston-upon-Hull and
county of the same town " ; — Held,
to be sufficiently laid in the venue
of an indictment tried in the next
adjoming county, as " Yorkshire be-
ing the next adjoining county to
the town and county of Kingston-
upon-Hull, to wit," the venue being
imperfect, there being no " county
of Kingston-upon-Hull." Reg, v.
Grundy^ 2 Cox, C. C. 357 — Patteson.
Newcastle-upon-Tyne is a county
corporate within 7 Geo. 4, c. 64, s.
12. Brrington^s case, 2^Lewin, C.
C. 278— Patteson.
The 38 Geo. 3, c. 52, s. 2, which re-
lates to the trial of offences in an
adjoining county, only applies to
cities and towns corix)rate which
are counties of themselves, and not
to towns corporate which are not
counties of themselves. Ref/. v.
Milner, 2 C. & K. 310— Maule.
Where an offence, committed
within a limitedjurisdiction, is tried
in the adjoining county, under 38
Geo. 3, c. 52, s. 2, the venue in the
margin of the indictment is proper-
ly laid in the county where the of-
fence is tried, and there is no neces-
sity for an averment in the body of
the indictment to connect the coun-
ty of the city or town within which
the offence is alleged to have been
committed ^vith the venue of the
county from which the jury comes.
Reg, V. /Stokes, 4 Cox, C. C. 451 —
Williams.
During Jbnmeys or Voyages,^
—By 7 Geo. 4, c. 64, s. 13, '' for
the more effectual prosecution of
offences committed during jour-
neys from place to place, it is en-
acted, that where any felony or
misdemeanor shall be committed
on any person, or on or in respect
of any proi)erty in or upon any
coach, waggon, cart or other car-
riage whatever employed in «ny
journey, or shall be committed
on any person, or on or in respect
of any proi)erty on board any ves-
sel whatever employed on any
voyage or journey upon any nav-
igable river, canal or inland navi-
u
u
484
PROCEDURE AND PRACTICR
" gation, such felony or misdemean-
" or may be dealt with, inquired of,
" tried, deteimined and punished in
" any county, through any part
" whereof such coach, waggon, cart,
" caniage or vessel shall nave pass-
" ed in the course of the journey or
"voyage during which such fel-
" ony or misdemeanor shall have
" been committed, in the same man-
" ner as if it had been actually
" committed in such county ;
" In all cases where the side, cen-
" tre or other part of any highway,
*' or the side, bank, centre or other
" part of any such river, canal or
" navigation shall constitute the
" boundary of any two counties,
" such felony or misdemeanor may
" be dealt with, inquired of, tried,
" determined and pimished in either
" of the said counties, through or
" adjoining to or by the boundary
" of any part whereof such coach,
" waggon, cart, carriage or vessel
" shall have passed, in the course
" of the journey or voyage during
" which such felony or misdemeanor
" shall have been committed, in the
" same manner as if it had been ac-
" tually committed in such county."
This enactment is not confined in
its operation to the carriages of
common carriers, or to public con-
veyances, but if property is stolen
from any carriage employed on any
journey, the offender may, by vir-
tue of the above section, be tried
in any county through any part
whereof such carriage shall have
passed in the course of the journey
during which such offence shall
have been committed. Heg. v.
Sharpe, Dears. C. C. 415 ; 24 L.
J., M. C. 40 ; 6 Cox, C. C. 418.
Where the evidence is consistent
with the fact of an article having
been abstracted from a railway
carriage, either in the course of the
journey through the county of A.,
or after its arrival at its ultimate
destination in the county of B., and
the prisoner is indicted in A. under
7 Geo. 4, c. 64, s. 13, the case must
go to the jury, who is to say whe-
ther they are satisfied that the hir-
ceny was committed in the coarae
of the journey or afterwards. Reg,
V. Pierce, 6 Cox, C. C. 117.
The act of stealing must be com-
mitted " in or upon the coach," to
bring it within 7 Geo. 4, c. 64, s.
13. Sharpens case^ 2 Lewin, C. C.
233— Parke.
On an indictment for assault, it
was proved that the as^ult was
committed in one of the carriageB
of a train running from Brighton
to New Cross, and before the train
had arrived at the Three Bridges
Station, in Sussex. At that station
the prosecutrix left the carriage in
which she had been riding wit£ the
defendant and rode in another car-
riage of the same train to New
Cross, which is within the jurisdic-
tion of the Central Criminal Court:
— ^Held, that by the joint operation
of the 7 Geo. 4, c. 64, s. 13, and 4<fe
5 Will. 4, c. 36, s. 2, the indictment
was properly preferred and tried at
the Central Criminal Court lUg.
V. French, 8 Cox, C. C. 252— Car-
ney, Recorder.
Central Criminal Court.] — ^By 9
6 10 Vict. c. 24, s. 3, " every writ
" of certiorari for removing an in-
" dictment from the Central Crim-
" inal Court into the Court of
" Queen's Bench sliall specify tiie
" county or jurisdiction in whidi
^^ the same shall be tried ; and a
"jury shall be summoned, and the
" trial proceed in the same manner
" in all respects as if the indict-
"ment had been originally pre-
^' fen-ed in that county or jurisdic-
" tion."
An indictment for libel was pre-
ferred in the Central Criminal Court,
the publication being laid as hav-
ing taken place " at the parisli of
St. M., in the county of AMdlesex,
within the jurisdiction of the Cen-
tral Criminal Court." The defeiid-
ant having removed it by certio-
rari, it came on to be tried at nisi
INDICTMENT.
485
prias*, ill Middlesex, when he with-
drew his plea of not guilty : — Held,
that there was a sufficient venue
assigned to the material fact. JReg,
V. Gregory^ 9 Jur. 593 ; 1 4 L. J.,
M.C.82; 7Q. B. 274.
At the Central Criminal Court, a
person was indicted for a burglary
in a house, which was stated in the
iDdictment to be in the " parish of
W." The prosecutor stated that
the correct name of the parish was
St. Mary W. In 4 & 5 Will. 4, c.
36, 8. 2, this parish is called " the
Mrish of W. ":— Held, sufficient.
Jieg. V. St. John, 9 C. <fc P. 40—
— Bosanquet and Parke.
Larceny committed on boaixi an
English ship lying in a rive^ in Chi-
na IS withhi the jurisdiction of the
Central Criminal Court. i?e.>j v.
Allen, 7 C. & P. 664 ; 1 M. C. C.
494.
A. was indicted at common law
for simple larceny, in stealing in
Middlesex a quantity of lead. The
lead was stolen from the roof of
the church of Iver in Buckingham,
shire. Tlie prisoner was indicted
at the Central Criminal Court,
which has jurisdiction in Middlesex
(under 4 & 5 Will. 4, c. 36), but
not in Buckinghamshire : — Held,
that he could not be convicted
there, on the ground that the orig-
inal taking, not being a larceny,
but created by statute a felony, the
subsequent possession could not be
considered a larceny. Hex v. Mil-
lar,! C,& P. 665— Alderson, Pat-
tern, Park.
An accessory before the fact to a
felony committed on the high seas,
within the jurisdiction of Sie Ad-
miralty of England, may be indict-
ed and tried at the Central Criminal
Court, by virtue of 7 Greo. 4, c. 64,
8. 9, and 4 & 5 Will. 4, c. 86, s. 22,
although the person charged as the
principal offender has not been com-
mitted to or detained in the gaol of
Newgate for his offence. Jteg, v.
WaUuce, Car. & M. 200 ; 2 M. C.
C. 200. •
Before 9 & 10 Vict. c. 24, s. 3,
an indictment alleging the offence
to have been committed at the
parish of M., in the county of Mid-
dlesex, and within the jurisdiction
of the Central Criminal Court, was
found at the Central Criminal
Court, and removed by certiorari :
— Held, that the case was properly
tried by a Middlesex jury. Heg.
V. Hiint, 10 Q. B. 925; 11 Jur.
822; 17L. J.,M. C. 14.
Change of Venue.] — Tlie court
removed an indictment from the Cen-
tral Criminal Coui-t, and changed
the venue from London to West-
minster, where it was a prosecution
instituted by the corporation of
London, for a conspiracy in procur-
ing false votes to be given at an
election to the office of bridgemas-
ter. JReg. v. Simjyson, 5 Jur. 462
— B. C.
It is no gi-ound for removing the
trial of an indictment from a large
county, that a strong prejudice ex-
ists at;ahist the defendant in the
county town wliere the trial is to
take place. Jieg. v. Stepheyison, 5
Jur. 341— B. C.
Where the court grants a rule to
change the venue hi an indictment,
on the ground that the defendant
is imlikely to have a fair trial where
it is laid, the court will change it
to some other county on the same
circuit. Anoji., 6 Jur. 131 —
B.C.
The court will permit a sugges-
tion to be entered on the i-ecord,
for the purpose of the trial of a
misdemeanor into an adjoining
county on the application of one of
several defendants, although it does
not api^ear that the others have as-
sented to the application, if there is
no reason for believing that they
dissent. Reg. v. Broione, 6 Jur.
168— Q. B. '
Where there was a prospect of
a fair trial, the court refused to
change the venue, though the wit-
nesses resided in another county.
486
PROCEDXJKE AND PRACTICE.
Reg. V. I}unn^ 11 Jm*. 287 — B. C.
— ^Pattesoii.
The court will not permit the
venue in an indictment to be
changed for any other cause than
the inability to obtain a fair trial
in the original jurisdiction. Reg.
V. Patent Ewrika and Sanitary
Manure Company^ 13 L. T., N. S.
365— Q. B.
The court has no power to change
the venue in a criminal case, nor
will they order a suggestion to be
entered on the roll to change the
place of trial in an information for
libel, on the ground of inconveni-
ence and difficulty, in securing the
attendance of the defendant's wit-
nesses. Reg, V. Cavendish^ 2 Cox,
C.C. 176.
The court will remove an indict-
ment for a misdemeanor from one
county to another, if there is rea-
sonable cause to apprehend or sus-
pect that justice will not be im-
partially administered in the former
county. Rex v. Ilwit^ 3 B. ifc A.
444; 2 Chit. 130.
It is no reason for changing the
venue in an indictment for a con-
spiracy in destroying foxes and oth-
er noxious animals, that the gentry
of the county in which the indict-
ment was found is addicted to fox-
hunting. Rex V. King^ 2 Chit.
217.
Evidence of partiality must be
extremely strong to induce the
court to change the venue in a
criminal information. Rex v. Har-
ris, 3 Burr. 1330 ; 1 W. Bl. 378.
In felony, the court refused to
allow the defendant to enter a sug-
gestion for changing the venue, on
the ground of prejudice pervading
the county. Rex v. Penpraze, 1 N.
AM. 312; 4 B. ifcAd.573.
The court has a discretionary
power of ordering a suggestion to
be entered on the record of an in-
dictment for felony, removed thith-
er by certiorari, for the purpose of
awarding the jury process into a
foreign county ; but this power will
not be exercised unless it is abso-
lutely necessary for the purpose of
securing an impartial trial. Rex t.
ITolden, 2 N. & M. 167; 5 B. &
Ad. 347.
Where a defendant is in custody
in the county of A., upon an at-
tachment issuing out of the Court
of Exchequer, he may be removed
to the county of B., to take his trial
upon an indictment found in the
latter county. In re WeUon^ 1 C.
& J. 459.
(j) Caption,
The caption- of an indictment
must shew that the court where it
was found had jurisdiction. Bex
V. Fearnley, 1 Leach, C. C. 425.
An fcdictment beginning "The
jurors of our lady the Queen," is
not bad in arrest of judgment
The woi-ds, " of our lady the
Queen," may be rejected as sur-
plusage, the jurors intended being
those mentioned in the caption.
Reg. V. Turner, 2 M. & Rob. 214
— Parke. See Browne v. Reg. (in
error), 12 Q. B. 834; 12 Jur. 538;
17 L. J., K C. 152.
In a nisi prius record of an in-
dictment removed by certiorari, the
names of the grand jurors who
found the indictment need not be
inserted in the caption. Rex v.
Davis, 1 C. & P. 470— Park.
It is not necessary to specify the
names of the grand jury in the
record of the caption of an indict-
ment ; it is enough to aver that the
indictment was found bv twelve
good and lawful men, for the party
mdicted has an opportunity of re-
sorting to the original caption,
wl^ere the names of the jurors ap-
pear. Aylett V. Rex (in error), 3
Bro. P. C. 529 ; 6 A. <fc E. 247, n.
The caption of an indictment on
wliich a defendant had been con-
victed was drawn up by the clerk
of the peace from the minutes of
sessions, and returned with the in-
dictment to the crown officer, ft
stated th^ presentment to be made
INDICTMENT.
487
by the oaths of A., B., C, D. (nam-
ing twelve grand jurors), and oth-
ers, good and lawnil men. A rule
was obtained (with a view to a
court of error), calling on the clerk
of the peace to shew cause why the
caption should not be amended by
inserting the true names and num-
ber of the grand j ury sworn. Proof
was given by affidavit, that the real
number exceeded twenty-five. The
clerk did not deny this, but stated
that he had no minute or recollec-
tion of the names or number: —
Held, that the caption was not in-
coniect in omitting to state the num.
ber and all the names of the graud
jury ; and that, under these circum-
stances, no alteration could be made
in it, and the defendant received
ju^ment. Hex v. Marshy 6 A. &
E.286; 1 N. & P. 187; 2 H. &
W. 866.
Semble, per Patteson, J., that an
indictment which omits to describe
the jurors as jurors of the county
is bad. Whitehead v. Jiec;. (in er-
ror), 7 Q. B. 582 ; 9 Jur. 594 ; 14
LJ.,M. C. 165.
A caption stating that an indict-
ment was found at the sessions hold-
en at Warwick, in and for the coun-
ty of Warwick, and by adjourn-
ment thence at Coventry, in and
for the same county, upon the oath
of A. B., Ac, good and lawful
men of the county then and there
sworn to inquire for the body of
the county, is a sufficient caption
under the 5 46? 6 Vict, c 110, an-
nexing the county of the city of
CJoventry to Warwickshire. ITol-
Icmty V. Reg. (in error), 17 Q. B.
819 ; 2 Den. C. C. 287 ; 15 Jur.
825.
(k) Several Counts.
Validity.] — Each count in an in-
dictment is, to all intents and pur-
poses, a separate indictment in it-
self. Latham v. Beg. (in error),
9 Cox, C. C. 516 ; 10 Jur., N. S.
1145 ; 33 L. J., M. C. 197 ; 5 B. &
S»635; 12 W. R. 908; 10 L. T.,
N. S. 571.
Where, therefore, it appeared by
the record, that the aefendants
pleaded not guilty generally to an
indictment containing two counts,
and that the jury fomid a verdict
of guilty upon the one count, but it
did not appear that they found any
verdict upon the other : — Held, that
the conviction and judgment upon
the one were, nevertheless, good.
lb.
A prisoner was arraigned upon
an indictment, containing one count
for felony and one for misdemeanor ;
and, having pleaded not guilty, was
dulv tried and convicted of felony :
— lleld, that the misjoinder was no
objection to the conviction. Heg.
V. Ferguson^ 6 Cox, C. C. 454 ; 24
L. J., M. C. 61.
Adding.'] — Where the counsel
for the prosecution has obtained
leave to add a count, on the ground
that the indictment, as framed, will
not enable him to disclose all the
facts of the transaction, the defend-
ant cannot claim to be tried at
once upon the indictment already
preferred, and the trial must be
postponed. Heg. v. Stone, 1 F. &
F. 310— Bramwell.
(1) As to the Aliegatians.
By 14 & 15 Vict. c. 100, s. 24,
" no indictment for any offence shall
" be held insufficient for want of the
" averment of any matter unneces-
"sary to be proved, nor for the
" omission of the words *as appears
" by the record,' or of the words
" * with force ' and arms,' nor for
"want of a proper or formal con-
" elusion, nor for want of or imper-
*' fection in the addition of any de-
"fendant."
If an indictment is in itself good,
tautolosous words will be <^jected
as surplusage. JRex v. Morris, 1
Leach, C. C. 109.
A bad indictment may be made
488
PROCEDURE AND PRACTICE.
good by rejecting as insensible and
useless such words as obstruct the
the sense of it. Hex v. JRedman, 1
Leach, C. C. 477.
A statement in an indictment
may be either according to the fact
or the legal oi^eration. Reg. v.
ffealey, 1 Sl C. C. 1.
The words " as follow, that is to
say," when introductory to a recital
in an indictment, do not bind the
party to an exact and a verbatim
recital. Rex v. Hart^ 1 Leach, C.
C. 145 ; 2 East, P. C. 978 ; 1 Dougl.
193 ; Cowp. 229 ; S, P., Bex v.
Mat/, 1 Leach, C. C. 192.
Where an evil intent, accompany-
ing an act, is necessary to constitute
such act a crime, the intent must be
alleged in the indictment, and prov-
ed ; though it is insulHcient to al-
lege it in the prefatory part of the
indictment. But where the act is
in itself unlawful, the law infers an
evil intent, and the allegation of
such intent is merely matter of form,
and need not be proved by ex-
trinsic evidence on the part of the
prosecutor. Hex v. PhiUips^ 6 East,
464 ; 2 Smith, 550.
An indictment, which may apply
to either of two diiferent definite of-
fences, is bad. Rex v Marshall^ 1
M. C. C. 158.
If an indictment has an interline-
ation, and has a caret at the proper
place, where the interlined words
are to come in, the court will take
notice of the caret, and read the in-
dictment correctly. Rex v. Davis,
7 C. & P. 319— Patteson.
Every indictment must contain a
complete description of such facts
and circumstances as constitute the
crime, without inconsistency or re-
pugnancy. But, except in certain
cases, where technical expressions
having grown by long use into law are
required to be used, the same sense
is to be put on the words of an in-
dictment which they bear in ordin-
ary acceptation ; and if the sense of
any word is in ordinary acceptation
ambiguous, it will be construed ac-
cording as the context and subject-
matter require it to be, in order to
make the whole consistent and
sensible. The word " until " mav
therefore be construed either ex-
clusive or inclusive of the day to
which it is applied, according to
the context and subject-matter.
Rex V. t^vens, 5 East, 244 ; 1 Smith,
437.
After verdict defective averments
in a second count of an indictment
may be cured by reference to suffi-
cient averments in the first count
Rec/. V. WaveHan, 2 Den. C. C. 340 ;
17 Q. B. 562 ; 16 Jur. 16 ; 21 L J.,
M. C. 7.
An indictment, ungrammatical,
is not bad if the real meaning is suf-
ficiently expressed. JReg. v. Stokes,
1 Den. C. C. 307.
An indictment charging that de-
fendant made an assault on Heniy
B., " and him the said William B.
did beat, and other wrongs to the «
said William B. did the (hmage of
the said William B.," is insufficient.
Beg. V. Orespin, 11 Q. B. 913 ; 12
Jur. 433 ; 17 L. J., M. C. 128.
Since 14 & 15 Vict c. 100, s. 24,
an indictment for a public nmsanoe
needs not conclude ad oommime
nocumentum. Reg, v. Holmes,
Dears. C. C. 207 ; 17 Jur. §62; 22
L. J., M. C. 122.
Semble, when the title of an act
is not cori*ectly set out in an indict-
ment, but tlie variation from the
true title is so small that the court
can have no doubt what statute is
referred to by the title indicated,
no objection can be sustained to the
sufficiency of the indictment on ac-
count of the variance. Reg. v.
Westleg, Bell, C. C. 193 ; 29 L J.
M. C. 35 ; 5 Jur., N. S. 1362.
Li felonies the indictment must
allege them to have been done fel-
oniously ; and, therefore, where »
statute creates a felony, it is not
sufficient to charge the offender
merely in the terms of the statute.
Heg. V. Grag, L. & C. 365 ; 9 Cox,
C. C. 417 ; 10 Jur., K S. 160 ; S3
INDICTMENT.
489
LJ.,M. C. 78; 12W.R.850; 9
li. 1.. ^. o. too,
A prisoner was indicted under
24 & 25 Vict. c. 97, s. 15, with hav-
ing anlawfiilly and maliciously
damaged, with intent to destroy,
certain machines ; the word " felon-
iously " being omitted, the indict-
ment is bad. lb.
An indictment alleging that a
cause " came on to be heard and
was duly tried by a jury," is suffi-
ctent, although no verdict was giv-
en, the trial ending in a nonsuit.
lUg. V. Bray, 9 Cox, C. C. 218—
Gumey, Recorder.
An indictment, alleging that the
defendant '^ did unlawfully obtain
from the said C. C. a cheque for
the sum of 8/. lis, 6d, of the monies
of the said W. W.," is a sufficient
allegation of the ownership of the
cheque. Beg, v. Godfrey^ Dears. &
B. C. C. 426*; 4 Jur., N. S. 146 ;
27 L. J., M. C. 151.
An indictment charging D. L. as
a receiver of stolen goods, " he, the
said A. B., well knowing them to
have been feloniously stolen," is, in
arrest of judgment, a bad indict-
ment, and is not capable of being
amended. lieg, v. Larkin^ 2 C. L.
R. 775 ; Dears. C. C. 865 ; 6 Cox,
C. C. m ; 18 Jut. 539 ; 23 L. J.,
M. C. 125.
A, was charsced in one count with
Stealing goods, and in a second
count with receiving the same
goods " so as aforesaid feloniously
stolen." He was convicted on the
second count : — Held, that the con-
viction was good. JReg, v. Huntley,
Bell, C. C. 238; 8 Cox, C. C. 260 ;
6 Jur., N. S. 80 ; 29 L. J., M. C.
170 ; 8 W. K. 183 ; 1 L. T., K S.
384.
Duplicity in an indictment is no
ground of error. Nash v. Heg, (in
error), 9 Cox, C. C. 424 ; 10 Jur.,
N. S. 819 ; 33 L. J., M. C. 94; 4
B. A S. 985 ; 12 W. R. 421 ; 9 L.
T., N. S. 716.
Fish. Dig.— 37.
(m) Description of the Party ac-
cused.
By 14 & 15 Vict. c. 100, s. 24,
" no indictment for anv offence shall
" be held insufficient /or want of or
" imperfection in the addition of any
" defendant."
If the name of a prisoner is un-
known, and he refuses to disclose
it, an indictment against him as a
person whose name is to the jurors
unknown, but who is })ersonally
brought before the jurors by the
keeper of the prison, will be suffi-
cient. JRex V. , R. & R. C. C.
489.
But an indictment a<)rainst him as
a person to the jurors unknown,
without something to ascertain
whom the grand jury meant to des-
ignate, is insufficient. lb.
An indictment against A. by the
addition of " servant " was ill. lUx
V. Ohecketts^ 6 M. & S. 88.
A woman charged with tlie mur-
der of her husband was described
as " A., the wife of J. O., late of
the parish of S., in the county of
W., labourer." Thejudgeordei^ed
this to be amended by striking out
the word " wife " and inserting the
word " widow." JReg, v. Orchard,
8 C. & P. 565— Abinger.
The prosecutor was termed in the
indictment J . N. B. esquire : it was
proved that his name was J. N. B.,
but no evidence was given that
he was an esquire : — Held, that the
court would take notice that esquire
was an addition, and not part of
the name, and that it was immater-
ial that such addition should be
proved as laid. JReg, v. Keys, 2
Cox, C. C. 225— Wilde.
(n) Allegations of Time and Plaice,
By 14 <fc 15 Vict. c. 100, s. 24,
" no indictment for any olfence shall
"be held insufficient for omitting
'^ to state the time at which the of-
" fence was committed in any case
'^ where time is not of the essence
490
PROCEDURE AND PRACTICE.
" of the offence, nor for stating the
" time imperfectly, nor for stating
" the offence to have been commit-
^' ted on a day subsequent to the
" finding of the indictment, or on
'^ an impossible day, or on a day
" that never happened."
Where dates in an indictment
are laid under a videlicet, the vide-
licet may be rejected after verdict in
order to support the indictment.
ByaUs v. Heg, (in error), 11 Q. B.
781 ; 13 Jur. 259 ; 18 L. J., M. C.
69-— Exch. Cham.
After verdict, to support an in-
dictment, and to shew that the pro-
visions of a statute have been com-
plied with, dates laid under a vide-
licet will be taken to be true. Reg,
V. ScoU, 26 L. J., M. C. 128 ; Dears.
& B. C. C. 47 ; 2 Jur., N. S. 1096.
In an indictment for assault and
battery, the only allegation of the
year in which the offence was com-
mitted was " in the tenth year of
our Sovereign Lady Queen Vic-
toria *' : — Held, that by 7 Geo. 4, c.
^4, s. 20, this was no ground of er-
ror. Broome v. Reg. (in error), 12
Q. B. 834 ; 12 Jur. 538 ; 17 L. J.,
M. C. 152— Exch. Cham.
The objection that an offence
was laid in an indictment to have
been committed on a day which
had not yet arrived, could only be
taken advantage of on demurrer,
and could not be taken after a plea
of not guilty. Reg, v. Fenwick^ 2
C. & K 915 ; 4 Cox, C. C. 139—
Cresawell.
In an indictment for burglary, it
is sufficient to allege that the burg-
lary was committed at a place,
naming it, e. g. " at Norton-juxta-
Kempsey, in the county aforesaid,"
without stating the place to be the
p&rish, vill, chapelry, or the like.
Reg. V. Brookes^ Car. & M. 543 —
Patteson.
It was no objection .on the plea
of not guilty that there was no such
place in the county as that in which
the offence was stated to have been
oommitted, and the fact that there
was no such place in the county
could only be taken advantage of
by plea in abatement. jBex v.
Woodward, 1 M. C. C. 323.
In an indictment, alleging a
dwelling-house to be " situate at the
parish aforesaid," the parii^ last
mentioned must be intended. Rex
V. Richardi, 1 M. & Rob. 177—
Park.
A house is properly described as
in the parish of Birmingham, al-
though for certain ecclesiastical
purposes that parish is divided into
three divisions, each called a parish.
Reg, V. HoweU, 9 C. & P. 437-
Littledale.
Where time and place are mate-
rial, the time and place stated will
be taken to be the true time and
place. Rex v. Napper, 1 M. C. C.
44 ; 8, P., Rex v. iroum, M. & M.
163.
Where a statute makes an offence
committed after a given day triable
in the county where the party \& ap-
prehended, and authorizes laying it
as if committed in that county, and
does not vary the nature and char-
acter of the offence, it is no objec-
tion that the day laid in the indict-
ment is before the day the statute
mentions, if the offence was in fact
committCKl after that dav. Rex v.
Trehame, 1 M. C. C. 298.
Words of reference, as " there'*
and '^ said," in an indictment, will
not be referred to the last anteced-
ent, where the sense requires that
they should be referred to some
{►rior antecedent. Wright v. Bez
inerror), 3K &M. 892.
(o) Name of Party injured.
In Genera/.]— By 14 A 15 Vict
c. 100, s. 24, " no indictment for
'* any offence shall be held insuffi-
^^ cient for that any person men-
'^ tioned in the indictment is desig-
" nated by a name of office, or other
" descriptive appellation instead of
" his proper name."
A prosecutor may be described
by a name he has assumed, although
INDICTMENT.
491
it is not his right name, if he has
been known by that name for sev-
eral previous years. JRex v. Norton^
R. & R, C. C. 510.
It is sufficient to describe a prose-
cutor by the name by which he is
commonly and best known. Meg.
V. Gregory^ 2 New Sess. Cas. 229;
8 Q. B. 508 ; 10 Jur. 387 ; 15 L. J.,
M. C. 88.
A foreigner residing in this
country, whose name was Charles
Frederick Augustus William D'-
Este, and who was commonly call-
ed the Duke of Brunswick andLune-
berg, though not de facto the reign-
ing duke, was sufficiently described
as Charles Frederick Augustus Wil-
liani, Duke of Bnmswick and Lune-
be^. Ih.
"iJie question, whether the name
of a prosecutor, as set forth in an in-
dictment, and the name as it ap-
pears in evidence, are idem sonans,
IS a matter of fact which is for the
jury ; and where it is reserved as a
question of law, the court cannot
say that words spelt differently are
the same in sound. Reg, v. Dames j
2 Den. C. C. 231 ; T. & M. 557 ;
15 Jur. 546 ; 20 L. J., M. C. 207.
The prisonei-s were indicted for
stealing certain articles from Rich-
ard Henry John Beaumont Mc-
Cumming; there was evidence of
the prosecutor's surname being Mc-
Cumming, but there was no evi-
dence what his christian names
were: — Held, that the indictment
was hot sustainable. Heg. v. Dent,
2 Cox, C. C. 354.
The only evidence of the chris-
tian name of the prosecutor was
that of a witness who had seen him
sign an information, not in the pres-
ence of the prisoners, and also the
depositions when before the magis-
trates, in the presence of the prison-
ers. The witness knew nothmg of
the prosecutor's christian name ex-
cept from having seen him sign his
name on those two occasions: —
Held, that the witness's evidence
was admissible to prove the fact of
the prosecutor's name. JReg, v.
Toole, Dears. & B. C. C. 194 ; 3
Jur., N. S. 420 ; 26 L. J., M. C. 79.
Property stolen described in an
indictment as belonging to J. H. S.,
whereas, in fact, the name was H.
J. S., is improperly described. JReg,
V. James, 2 Cox, C. C. 227.
A count in an indictment charged
that defendant made an assault up-
on one " Henry B.," " and him, the
said William B., did beat, and other
wrongs to the said William R,"
did, to the '' damage of the said
William B." On motion in arrest
of judgment, held sufficient. Beg.
V. Orespin, 11 Q. B. 913.
If the name of the party killed is
not known, he may be stated to be
" a certain person to the jurors un-
knovm." jRex v. Olark, li. <fc R. C.
C. 358.
The name of John M'NicoU,
signed to a forged instrument, was
in the setting out of the forged in-
strument in the indictment written
John M'Nicole : — Held, no variance.
Beg. V. Wilson, 2 C. & K. 527 ; 1
Den. C. C. 284 ; 17 L. J., M. C. 82;
2 Cox, C. C.426.
A child " not named " is a proper
description in an indictment for ill-
treatment of a child that has not
acquired one by baptism or usage.
Beg. V. Waters, 2 C. <fc K. 864 ; T.
& M. 57 ; 1 Den. C. C. 356 ; 13
Jur. 130; 18 L. J., M. C. 50.
But " not baptized " would be in-
sufficient, lb.
Bdstards.Jl — A bastard must not
be described by his mother's name
till he has acquired that name by
reputation. Bex v. Clark, R. & R.
The deceased was an illegitimate
child twelve days old, and it was
not even suggested that it had
been baptized, but the prisoner, its
mother, had said that she should
Uke to have the child named JViary
Anne, and on two occasions after-
wards called the child Mary Anne,
and on another occasion. Little
492
PROCEDURE AND PRACTICE.
Mary. Tlic prisoner's master, who
was the father of the child, had
stated to one of the witnesses for the
prosecution that he was a Baptist.
The indictment alleged the child to
be " a certain female child, whose
name to the jurors was unknown."
The prisoner was convicted, and the
judges held the conviction to be
right. Rex V. Smith, 6 C. & P. 151;
1 M. C. C. 402.
An indictment charsjed the mur-
der of Eliza Waters. The deceased
was the illegitimate child of the
prisoner, whose name was Ellen
Waters ; and a witnes»s said on the
trial — " The child was called Eliza;
I took it to be baptized, and said it
was Eleanor Waters' child : — Held,
that it was not sufficient proof that
the surname of the deceased was
Waters. Rex v. Waters, 7 C. & P.
250 ; 1 M. C. C. 457.
Peers.'] — ^A peer of Ireland can-
not sue or prosecute by his name of
dignity, but must be described by
his proper name, with the addition
of his degree and title. Rex v. Grra-
ham, 2 Leach, C. C. 547.
An indictment for manslaughter
described the deceased, who was a
rr of Ireland, as " H. S., Baron
of C, in the county of R., in
that part of the united kingdom
called Ireland." It was proved that
H. was his christian name, S. his
family surname, and Baron M., &c,,
his title : — Held, no variance, and
that the court was not bound to
construe H. S. to be one christian
name. Rex v. Brinklett, 3 C. & P.
416.
In an indictment for larceny of
goods, the property of a peer who
IS a baron, the goods may be laid as
the goods of G. T. R., Lord D.,
without styling him Baron D., al-
though the more proper way to de-
scribe a peer is by his christian
name, and his degree in the peerage,
as duke, earl, baron, or the like.
Meg. V. Pitts, 8 C. & P. 771— Er-
Bkine.
In an indictment for stealing the
goods of a peer, it is necessary to
describe him by his christian name
and title : — describing him by the
latter only, as the Earl Comwallis,
is insufficient. Reg. v. Caiey, 5 Jur.
709— Taddy, Serjt.
A. and B. were tried on an in-
dictment charging them with hav-
ing assaulted the gamekeeper of
George William FrSerick Charles,
Duke of Cambridge. At the trial,
none of the witnesses could prove
the christian names of the duke, but
there was evidence that Geoige
William were two of his names,
and that it was believed there were
others : — Held, that the court was
not bound, and was perfectly right
in rei^sing to amend the indictment,
by striking out the names of Fred-
erick Charles; and that as there
was no amendment, and no evidence
of the duke's christian names, A.
and B. were entitled to an acquit-
tal. Reg. V. PVost, Dears. C. C.
474 ; 3 C. L. R. 665 ; 1 Jur., N. S.
406; 24 L. J., M. C. 116.
Held, also, that the indictment
might have been amended before
verdict, by striking out all the
christian names, and leaving the de-
scriptive appellation, Duke of Cam-
bridge, which would have been a
sufficient description. lb.
Corporations. ] — A corporation
must prosecute in its corporate
name. Rex v. Patrick, 1 Leach, C.
C. 253.
(p) Description of Property or In-
strument.
By 14 A 15 Vict. c. 100, s. 7,
" whenever it shall be necessary to
^^ make any averment in any in-
'^ dictment as to any instrument,
" whether the same consists wholly
"or in part of ^inriting, print, fig-
" ures, it shall be sufficient to de-
" scribe such instrument by any
" name or designation by which the
^' same may be usually known, or
INDICTMENT.
493
"by the purport thereof, without
" setting out any copy or fac simile
" of the whole or any part there-
" of"
By s. 5, " in any indictment foi*
"Btealing, embezzling, destroying
" or concealing, or for obtaining by
" false pretences any instrument, it
" shall be sufficient to describe such
" instrument by any name or desig-
" nation by which the same may be
" usually known, or by the purport
"thereof, without setting out any
" copy or fac simile thereof, or oth-
" erwise describing the same or. the
" value thereof."
By 8, 18, " in every indictment in
"which it shall be necessary to
"make any averment as to any
" money, or any note of the Bank
" of England, or any other bank, it
" shall be sufficient to describe such
"money, or bank note, simply as
"money, without specifying 'any
" particular coin or bank note ; and
" such allegation, so far as regards
"the description of the property,
" shall be sustained by proof of any
" amount of coin or of any bank
" note, although the particular spe-
" cies of coin of which such amount
" was composed, or of the particu-
" lar nature of the bank note, shall
" not be proved ; and in cases of
" embezzlement and obtaining mon-
" ey or bank notes by false preten-
**ces, by proof that the offender
" embezzled or obtained any piece
" of coin, or any bank note, or any
"portion of the value thereof, al-
" though such piece of coin or bank
" note may have been delivered to
" him in order that some part of the
" value thereof should be returned
" to the party delivering the same,
" or to any other person, and such
" part shall have been returned ac-
" cordingly."
In an indictment for receiving
stolen tin, ingots of tin are properly
described as so many pounds weight
of tin. Reg. v. Manftfieldy Car. &
11 140— Coleridge.
So it would be proper to describe
a bar of iron as so many pounds
weight of iron. Tb,
But if an article has obtained, in
common parlance, a particular name
of its own, it would be wrong to
describe it by the name of the ma-
terial of which it is composed ; thus,
it would be a misdescription to de-
scribe cloth as so many pounds
weight of wool, or sovereigns as so
many ounces of gold. Tb,
Substances mechanically mixed
should not be described as " a cer-
tain mixture consisting of, &c.," but
by the names applicable to them
before such mixture. Secus, with
regard to substances chemically
mixed, lieg. v. JBond, 1 Den. C. C.
517 — ^Alderson.
Bank notes are properly described
in an indictment for larceny as mon-
ey, although at the time they were
stolen they were not in circulation,
but were in the hands of the bank-
ers themselves. Heg. v. West^ 2
Jur., N. S. 1123 ; 26 L. J., M. C. 6;
Dears. & B. C. C. 109.
Instruments need not be set out
in an indictment, except where it is
material for the court to see that
they fall within a particular descrip-
tion. That is not the case where a
false pretence is charged. Heg, v.
Cmhon, T. <fc M. 332 ; 1 Den. C.
C. 592 ; 14 Jur. 557 ; 19 L. J., M.
C. 182.
An indictment for burglary charg-
ed an intent to. steal goods and
chattels. The jury found that the
prisoner broke into the house with
intent to steal certain mortgage
deeds. The mortgage deeds were
valid subsisting securities for money
which the prosecutor had advanced
to the prisoner : — ^Held, that they
could not properly be described as
foods and chattels, and that the in-
ictment was not proved. JReg, v.
PoweU, 5 Cox, C. C. 396 ;* 2 Den.
C. C. 403 ; 21 L. J., M. C. 78.
(q) Value.
By 14 & 15 Vict. c. 100, s. 24,
" no indictment for any offence shall
494
PROCEDURE AND PRACTICE.
" be held insufficient for want of the
" statement of tlie vahie or price of
" any matter or thing, or the amount
" of damage, injury or spoil, in any
" case where the value or price, or
" the amount of damage, injury or
" spoil, is not of the essence of the
" offence."
By s. 5, " in any indictment for
*' stealing, embezzling, destroying
" or concealing, or for obtaining, by
" false pretences, any instrument, it
" is unnecessary to describe the val-
" ue thereof."
By 9 & 10 Vict. c. 62, " it shall
" not be necessary in any indict-
" ment or inquisition for homicide
" to allege the value of the instru-
" ment which caused the death of
*' the deceased, or to allege that the
" same was of no value."
The word " guilder " is sufficient-
ly an English word to justify its
use in an indictment as a transla-
tion of the Polish word " zlotych,"
which is also called a guilder and
a florin. Hex v. Harris^ 7 C. & P.
416.
Where a count stated that the
defendant made an assault upon a
person who was in lawful possession
of goods, under a levv for a speci-
fied sum of money for arrears of
assessed taxes, with intent unlaw-
fully to force him out of possession :
— Held, that it was necessary to
prove that the specific sum was due,
although no sum need have been
stated. Bex v. jFbrdy 4 N. & M.
451.
Although to make a thing the
subject of an indictment for lar-
ceny, it must be of some value, and
stated to be 60 in the indictment,
yet it need not be of the value of
some coin known to the law, that is
to say, of a farthing at the least.
Heg. V. M(/rris, 9 C & P. 349 —
Parke. * See 14 & 15 Vict. c. 100,
8. 5.
Where value is essential to con-
stitute an offence, and the value is
ascribed to many articles collective-
ly, the offence must be made out as
to every one of those articles, the
grand jury having ascribed the val-
ue only to all those articles collect-
ively. Hex V. Fordyih^ R. & R. C.
C. 274.
(r) Contra Pacem and contra For-
mam StaivtL
By 14 '& 15 Vict. c. 100, s. 24,
" no indictment for any offence
" shall be held insufficient for want
" of the averment of any matter
" unnecessary to be proved, nor for
" the omission of the words ' against
" the peace,' nor for the insertion of
" the words ' against the form of
" the statute,' instead of * against
" the form of the statutes,' or vice
" versa.''
Where an act of parliament does
not create an offence, but alters the
punishment for an offence at com-
mon law, it is not necessary that
the indictment should conclude con-
tra formam statuti. WtUiams v.
JRet;, (in error), 10 Jur. 155; 14 L
J., M. C. 164; 7Q. B. 250.
An indictment preferred at the
assizes under the 7 A 8 Vict. c. 2,
for a crime committed on the high
seas, need not conclude contra for-
mam statuti. JReg. v. Serva^ 2 C.
& K. 53 ; 1 Den. C. C. 104.
Where a statute declares an of-
fence and awards a punishment, and
by a subsequent act the punishment
is altered, the indictment for such
offence should conclude against the
form of the statutes. Reg, v. Adams,
Car. & M. 299— Coleridge.
The omission of contra formam
statuti in an indictment for a stat-
utable offence, was good ground for
an arrest of judgment, and was not
cured by 7 <fc 8 Geo. 4, c. 64, 8&
20, 21. Eeg. v. RadcUffe, 2 AL C.
C. 68 ; 2 Lewin, C. C. 57.
It was an objection to a convic-
tion of manslaughter on an indict-
ment for murder that the indict-
ment does not conclude contra for-
mam statutL Rex v. Cha^mmf 1
M. C. C. 403.
INDICTMENT.
495
In an indictment for an offence at
common law, a conclusion of contra
formam statuti might be rejected as
snrplusage. Rex v. MaJtheios^ 5 T.
R162; Nolan, 202.
It is an offence at common law to
obstruct the execution of powers
granted by statute, and an indict-
ment for such ofience need not, and
ought not, to conclude contra for-
mam statuti. Rex, v. Smithy 2 Dougl.
441.
Where an indictment set out the
title of an old statute agreeably to
Ruffhead, which differed from a
copy of the act piinted by the
king's printer, the coui-t refused to
direct a nonsuit without proof of an
examination of the parliament rolls.
-Bear v. Bamett^ 8 Camp. 344— El-
lenborough.
If one statute subjects an offence
to a pecuniary penalty, and a sub-
sequent statute makes it felony, an
indictment for the felony conclud-
ing against the form of the statute
(in the singular number only) is
right Rex V. Pirn, R. & R. C. C.
425.
(s) Of joining Offences and Meet-
ing.
When Ojffences may he joined,']
—A person may be charged with
several offences of the same nature
in the same indictment, and the
judge will not, in cases of misde-
meanor, require the prosecutor to
confine himself to one offence. Rex
V. Jmes^ 2 Camp. 181 — Ellenbor-
ough.
It is no objection in aiTest of
judgment that the indictment con-
tains several charges of the same
nature in the ailterent counts.
Young v. Rex (in error), 3 T. R,
98. And see Rex v. Towle^ 2 Mai-sh,
466.
If one endeavours to commit two
separate offences, a count in an in-
dictment charging that endeavour
may contain those two offences.
Rex V. Fuller, 1 B. & P. 181.
Where sevexal felonies are so con-
nected together as to form part of
one entire transaction, evidence of
them all may be given, in order to
prove a Mrty indicted guilty of one.
Rex V. Mia, 6 B. & C. 145 ; 9 D;
& R. 174.
If several felonies are charged in
the same indictment, it is not objec-
tionable, either upon demurrer or
in an*est of judgment, for on the
face of the indictment every count
imports to be for a different offence.
Anon., 2 Leach, C. C. 1105, n.
But if it appears before plea, or
thejuiy is charged, that they are
separate offences, it is usual to quash
the indictment, lest it should con-
found the prisoner in his defence, or
prejudice him in his right of chal-
lenge. Ih.
Two indictments for the same of-
fence, one for the felony under a
statute, and the other for the mis-
demeanor at common law, ought
not to be preferred or found at the
same time. Rexy.Doran, 1 Leach,
O. C/. Duo.
The application for a prosecutor
to elect is an application to the dis-
cretion of the judge, founded on the
supposition that the case extends to
more than one charge, and may
therefore be likely to embarrass the
prisoner in his defence. Reg. v.
Trueman, 8 C. & P. 727— Erskine.
In a case of arson, the indictment
contained ^ve counts, each of which
charged a firing of a house of a dif-
ferent owner. It was opened, that
the five houses were in a row, and
that one fire burnt them all. Upon
this opening, the judge would not
put the prosecutor to elect, as it was
all one transaction. lb.
A prosecutor will not be permit-
ted to give in evidence several dis-
tinct offences, involving different
transactions, under one indictment.
Rex V. Young, R. & R. C. .C. 280,
n. — Le Blanc.
But several offences connected
with each other may. lb. And
see Rex v. Thomas, 2 East, P. C.
934.
496
PROCEDURE AND PRACTICE.
On an indictment against two,
charging them with a joint offence,
either may be found guilty; but
they cannot be foimd guilty separ-
ately of separate parts of the charge.
Hex V. Hampstead, R. & R. C. C.
344.
And if they are found- guilty sep-
arately, upon a pardon or nolle
prosequi as to the one who stands
aecond upon the verdict, the judg-
ment may be given against the
other. lb.
If two men are 'indicted, and
one of them appears to be innocent
and the other guilty, but the prose-
cutor cannot identify them respect-
ively, both must be acquitted. Hex
V. Richardson^ 1 Leach, C. C. 387.
It is in the discretion of the judge
whether he will allow several felon-
ies to be given in evidence under
one indictment ; where they are, in
&ct, so mixed as not to be separ-
ated without inconvenience, it will
be allowed. Reg, v. Hinley^ 2 M.
& Rob. 524— Maiile.
Although evidence offered in sup-
port of an indictment for felony may
be proof of another felony, that cir-
cumstance does not render it inad-
missible, if the evidence is otherwise
receivable. Reg. v. Dossett, 2 C. &
K. 306— Maule.
It is no ground in arrest of judg-
ment, after a conviction for a felony,
that the indictment also contains a
count for a misdemeanor. Reff. v.
Ferguson, Dears. C. C. 427 ; 6 Cox,
C. C. 454 ; 1 Jur., N. S. 73 ; 28 L.
J., M. C. 61.
It is no ground of objection to an
indictment in arrest of judgment
that it contains several counts for
distinct felonies. Reg. v. Heywood^
L. & C. 451 ; 9 Cox, C. C. 479 ; 33
L. J., M. C. 133 ; 12 W. R. 764;
10 L. T., N. S. 464.
The i>foper course to pursue, when
such joinder has a tendency to em-
barrass a prisoner in his defence, is to
apply to the judge either to quash
the indictment or to compel the
prosecutor to elect on which ooant
he will proceed- Ih
When the prosecutor must dect.\—
If two bills of indictment are prefer-
red for the same offence, the one
charging it capitally, the other fts b
misdemeanor, and both are found,
the judge will put the party upon
his election which to go upon, and
direct an acquittal 'on the other.
Rex V. Smith, 3 C. & P. 412—
Vaughan.
If an indictment contains a count
for robbery, and a count for an as-
sault with intent to rob, the jndge
will put the prosecutor to his elec-
tion. Rex V. Goughy 1 M. & Hob.
71— Park.
Where there are counts in an in-
dictment for forging a bill, accept-
ance, and indorsement, the prosecut-
or is not driven to elect on which he
will proceed. Rex v. Young, Peake's
Add. Cas. 228— Le Blanc.
A prosecutor cannot maintam
two indictments for misdemeanor
for the same transaction : he must
elect jto proceed with one and aban-
don the other. Rex v. Rritton, 1
M. & Rob. 297— Patteson.
On an indictment for forgery, if a
second uttering is made the subject
of a distinct indictment, it cannot
be given in evidence to shew a guilty
knowledge in a former uttering.
Rex V. Smithy 2 C. ifc P. 633—
Vaughan.
A prisoner was indicted for night-
poaching, and it was proposed to
shew that on the occasion in ques-
tion one of the prosecutor's game-
keepers had lost his coat, and that
it was found in the prisoner's house.
There was another indictment
against the prisoner for stealing the
coat : — ^Held, that this evidence wa?
inadmissible, unless the prosecutor
consented to an acquittal on the in-
dictment for the larceny, -R«b t.
Westwood, 4 C. & P. 547— Patteson.
A. was indicted for shooting at
B., a gamekeeper ; there being an-
INDICTMENT.
497
other indictment against A. for
night-poaching : — Held, that al-
though both indictments related to
the same transactions, yet these
were offences quite distinct from
each other, and that the prosecutor
ought not to be put to his election
to go upon one indictment and to
abandon the other. Hex v. MancUet/,
5 C. <fc P. 565— Parke.
If two were 'indicted for a con-
Bpiracy and for a libel, and at the .
close of the case for the prosecution ,
there is evidence against both as to
the conspiracy, but no evidence
against one of them as to the libel,
the judge will put the prosecutor
to elect which charge he will go
upon before the defendant's counsel
enters on the defence. Heg, v.
Murphy, 8 C. & P. 297— Coler-
idge.
An indictment contained counts
charging various misdemeanors,
amongst them counts for conspir-
acy. There being no evidence to go
to the jury upon the conspiracy, only,
the prosecution was made to elect
upon which count the case s|iould
be left to the jury. Heg. v. JBraun,
9 Cox, C. C. 284— JVIartin.
A party was tried upon an in-
dictment which contained two
count**, one for embezzlement, and
the other for larceny as a bailee.
At the close of the ca^e for the prose-
cution, it w^as objected that the in-
dictment was bad for misjoinder
of counts, and the court thereupon
directed the counsel for the crown
to elect upon which count he would
proceed, die counsel for the prisoner
contending that such a course was
inadmissible. The counsel for the
crown elected to proceed upon the
Kcond count, and on that count the
prisoner was convicted : — ^Held, that
the conviction was right. Reg, v.
Holman, L. & C. 177 ; 9 Cox, C. C.
201 ; 8 Jur., N. S. 1082 ; 10 W. R.
718 ; 6 L. T., N. S. 474.
Certain wharfingers and their
servants being indicted in various
counts for conspiracy to defraud, by
false statements as to goods depos-
ited with them, and insured by the
owners against fire; one set of
counts being laid with reference to
a fire occurring on the 7 th of June,
1864, and another, with reference
t» a fire occurring on the 25th of
November, 1864: — ^Held, that the
prosecution must elect oi^ which of
the two transactions, in the fii-st in-
stance, to rely. . Heg, v. Barry, 4 F.
A F. 889— Martin.
A prisoner being charged on sev- *
eral counts with setting fire to a
building described as in the occupa-
tion of different persons, also with
setting fire to goods in a building
so described, the prosecutor was not
put to elect, as it might be all one
act. Beg. v. Davis, 3 F. & F. 19—
Wightman.
As to Larcenies. — See ante,
Larcexy.
(t) TKme and Mode of raising J^or-
mal Objections,
By 14 & 15 Vict. c. 100, s. 25,
every objection to any indictment
for any formal defect apparent on
the face thereof shall be taken by
demurrer on motion to quash such
indictment before the jury shall be
sworn, and not afterwards ; and
every court before whom any such
objection shall be taken for any
formal defect may, if it be thought
necessary, cause the indictment to
be forthwith amended in such par-
ticular by some officer of the court
or other person, and thereupon
the trial shall proceed as if no
such defect had appeared."
By 7 Geo. 4, c. 64, s. 20, " in or-
der that the punishment of offend-
ers may be less frequently inter-
cepted in consequence of technical
niceties, no judement upon any
indictment or inrormation for any
felony or misdemeanor, whether
after verdict or outlawry, or by
confession, defiiult or otherwise,
shall be stayed or reversed for
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PROCEDURE AND PRACTICE.
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" want of the averment of any mat-
" ter unnecessary to be proved, nor
" for the omission of the words as
" appear by the record, or of the
" words with force and arms, or of
" the words against the peace, nor
" for the insertion of the words
" against the form of the statute,
" instead of the words against the
" form of the statutes, or vice vers&,
" nor for that any person or persons
" mentioned in the indictment of in-
" formation is or are designated by a
** name of office or other descriptive
" appellation, instead of his, her, or
" their proper name or names, nor
" for omitting to state the time at
'* which the oifence was committed,
" in any case where time is not of
" the essence of the offence, nor for
" stating the time imperfectly, nor
" for stating the offence to have
been committed on a day subse-
quent to the finding of the indict-
"ment or exhibiting the informa-
" tion, or on an impossible day, or
" on a day never happened, nor for
" want of a proper or perfect venue,
" where the court shall appear by
" the indictment or information to
" have had jurisdiction over the of-
" fence."
A defendant in an indictment
caimot, after plea, take advantage
of any defect which is aided after
verdict by 7 Geo. 4, c, 64, s. 20 ;
the only mode of taking advantage
of such defects being by demurrer.
Reg. V. FMx8, Car. & M. 564 ; S. P.,
Reg. V. Law, 2 M. & Rob. 197.
An indictment charged the com-
mission of the offence " in the 10th
year of our Sovereign Lady Vic-
toria," not saying " of the reign " :
— Held, that the objection, if other-
wise valid, was cured by 7 Geo. 4,
c. 64, s. 20. Brown v. Reg. 3 Cox,
C. C. 49 ; 17 L. J., M. C. 152; 12
Q. B. 834.
(u) Amendment.
StahOory Power.'] — ^By 14 & 15
Vict. c. 100, B. 1, " whenever on the
^^ trial of any indictment for any
felony or misdemeanor there shall
appear to be any variance between
the statement in such indictment,
and the evidence offered in proof
thereof, in the name of any county,
riding, division, city, boroagh,
town corporate, parish, township,
or place mentioned or described
in any such indictment, or in the
name or description of any person
or pei*sons, or a body politic or cor-
porate, therein stated or alleged
to be the owner or owners of any
property, real or personal, whi<i
shall form the subject of any
offence charged therein, or in the
name or description of any person
or persons, body politic or corpor-
ate, therein stated or alleged to be
injured or damaged, or intended
to be injured or damaged, by the
commission of such offence, or in
the christian name or surname, or
both christian name and surname,
or other description whatsoever
of any person or persons whomso-
ever therein named or described,
or in the name or description of
any matter or thing whatsoevef
therein named or described, or in
the ownership of any property
named or described therein, it
shall and may be lawful for the
court before which the trial shall
be had, if it shall consider such
variance not^aterial to the merits
of the case, and that the defend-
ant cannot be prejudiced thereby
in his defence on such merits, to
order such indictment to be
amended, according to the proof, by
some officer of the court or other
person, both in that part of the in-
dictment where such variance oc-
cui-s and in every other part of
the indictment which it may be-
come necessary to amend, on such
terms as to postponing the trial to
be had before the same or another
jury, as such court shall think
reasonable.
^' And after any such amendment
the trial shall proceed, whenever
the same shall be proceeded with,
INDICTMENT.
499
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in the f^me manner in all respects,
and with the same consequences,
both with respect to the liability
of witnesses to be indicted for per-
jury and otherwise, as if no such
Yariance had occurred; and in
ca«e such trial shall be had at Nisi
Prius, the order for the amend-
ment shall be indorsed on the
postea, and returned together with
the record, and thereupon such
papers, rolls, or other records of
the court from which such record
issued as it may be necessary to
amend, shall be amended accord-
ingly by the proper officer; and in
all other cases the order for the
amendment shall either be indorsed
on the indictment or shall be en-
grossed on parchment, and filed,
together with the indictment,
among the records of the court.
" Provided, that in all such cases
where the trial shall be so post-
poned as aforesaid it shall be law-
ful for such court to respite the
recognizances of the prosecutor and
witnesses, and of the defendant,
and his surety or sureties, if any,
accordingly, in which case the
prosecutor and witnesses shall be
bound to attend to prosecute and
give evidence respectively, and
the defendant shall be bound to
attend to be tried at the time and
place to which such trial shall be
postponed, without entering into
any fresh recognizances for that
purpose, in such and the same
manner as if they were originally
bound by their recognizances to
appear or prosecute or give evi-
dence at the time and place to
which such trial shall have been
postponed :
" Provided always, that where
any such trial shall be to be had
before another jury, the crown
and the defendant shall respect-
ively be entitled to the same chal-
lenges as they were respectively
entitled to before the first jury
was sworn."
Validity of Verdicts and Judg-
ments after Amendment.] — By s.
2, " every verdict and judgment
which shall be given after the
making of any amendment under
the provisions of the act shall be
of the same force and effect in
all respect^ as if the indictment
had originally been in the same
form in which it was after such
amendment was made."
Form of Records after Amend-
ment.']— By 8. 3, " if it shall be-
come necessary at any time for
any purpose whatsoever to draw
up a formal record in any case
where any amendment shall have
been made under the provisions
of the act, such record shall be
drawn up in the form in which
the indictment was after such
amendment was made, without
taking any notice of the fact of
such amendment having been
made."
On Demiurrer or Motion to gvash
Indictment^ — By s. 25, " every ob-
jection to any indictment for any
formal defect apparent on the
face thereof shall be taken, by
demurrer or motion to quash such
indictment, befoi'e the jury shall
be sworn, and not afterwards;
and every court before which any
such objection shall be taken for
any formal defect may, if it be
thought necessary, cause the in-
dictment to be forthwith amend-
ed in such particular by some
officer of the court or other per-
son, and thereupon the trial shall
proceed as if no such defect had
appeared."
Meaning of Indictment] — ^By s.
30, " the word indictment includes
" information, inquisition, and pre-
'' sentment as well as indictment,
" and also any plea, replication, or
" other pleading, and any Nisi Pri-
" us record."
500
PROCEDURE AND PRACTICE.
AmendmerU,]—" Whereas a fail-
" ure of justice frequently takes
" place in criminal trials by reason
"of variances between writings
" produced in evidence and the re-
"cital or setting forth thereof in
" the indictment or information,
"and the same caitfiot now be
"amended at the trial except in
" cases of misdemeanor, for remedy
" thereof, be it enacted, that it shall
" and may be lawful for any court
" of oyer and terminer and general
" gaol delivery, if such court shall
*' see fit. so to do, to cause the in-
**dictment or information for any
" offence whatever, when any van-
"ance or variances shall appear
" between any matter in writing or
" in print produced in evidence and
" the recital or setting forth thereof
''"in the indictment or information
"whereon the trial is pending, to
"be forthwith amended in such
" particular or particulars by some
" officer of tlie court, and after such
" amendment the trial shall proceed
"in the same manner in all re-
spects, both with regai-d to the
liability of witnesses to be in-
" dieted for perjury and otherwise,
" as if no such variance or vari-
"ances had appeared'* (11 & 12
Vict. c. 46, s. 4.)
By 12 ifc 13 Vict. c. 45, s. 10,
" eveiy court of general or quarter
" sessions of the peace, on the trial
"of any offence within its juris-
" diction, whenever any variance
" or variances shall appear between
" any matter in writing or in print,
" produced in evidence, and the re-
" cital or setting forth thereof in
"the indictment, shall have the
" same power in all respects to
" cause the indictment to be amend-
"ed, which is given to courts of
"oyer and terminer and general
" gaol delivery, with regard to of-
" fences tried before such last-men-
" tioned courts by virtue of the 1 1
" & 12 Vict. c. 46, 8. 4, and after
"such amendment the trial shall
"proceed in the same manner in
a
a
"all respects both with r^rd to
" the liability of witnesses to be in-
" dieted for perjury and otherwise,
" as if no variance or variances bad
" appeared."
Exercising,'] — ^As a general rule,
a judge on the trial of an indict-
ment will not allow an amendment
to be made after the counsel for
the defence has addressed the jury.
Reg. V. R'gmes, 3 C. <& K. 826^
Williams. But see Reg, v. FvOoT'
ton, 6 Cox, C. C. 194— If. C. C. R.
The proper course is for the pros-
ecutor's counsel to adduce all his
evidence and ask for the amend-
ment before he closes his case, and
if the amendment is made the pns-
oner's counsel addresses the jury
on the indictment as amended. lb.
An amendment in the name of
the owner of stolen property may
be made at the trial. Reg. v. Vin-
cent, 2 Den. C. C. 464.
Where stolen property has been
laid in a wrong person, the indict-
ment may be amended, even after
the counsel for the prisoner has ad-
dressed the jury and closed hi?
case. Reg. v. FuUartcn^ 6 Cox, C.
C. 194— Ir. C. C. R,
A judge has power to amend the
description of an act of ])arltament
in an indictment. Reg. v. lF<wtfey,
liell, C. C. 193 ; 29 L. J., M. C. 35;
5 Jur., N. S. 1362.
The court will not amend an in-
dictment by striking out the word
" feloniously," and thereby convert
the charge into a misdemeanor,
where the document given in evi-
dence to sustain a charge of forgery
will not sustain the charge of fel-
ony, altliough evidence of a com-
mon law misdemeanor. Reg. v.
Wright, 2 F. & F. 320— Hill.
A. and B. were indicted for a^
saulting a gamekeeper, they being
unlawfully upon land in the occa-
nation of one " Greorge William
Frederick Charles Duke of Cam-
bridge." A witness proved that
" George William " were two d
INDICTMENT.
501
the duke's christian names, and
that he had other christian names,
which, however, were unknown to
the witness. The court of quarter
session refused to amend by strik-
ing out the words " Frederick
Charles," and left it to the jury to
say whether they were satisfied,
upon the evidence, of the identity of
the Duke of Cambridge as occupier
of the land in question : — Held,
first, that the power of amendment
was in the discretion of the sessions,
and that such power should be ex-
ercised before a case goes to the
jury ; and that the court, therefore,
could not say that the sessions were
hound to amend. Reg. v, JBVost^
Dears. C. C. 474 ; 6 *Cox, C. C.
526; lJur.,N. S. 406; 24 L. J.,
M.C. 116.
Held, secondly, that the sessions
were right in refusing to make the
amendment asked, but that they
might have amended by striking
out all the christian names ; the in-
dictment could then have been sus-
tained, as containing a sufficient
descriptive appeUation of the prose-
cutor. Ih,
Held, thirdly, that as the indict-
ment stood, it contained tnatter of
description which ought to have
been proved ; and as it was not, the
sessions ought to have directed an
acquittal. Ih,
In an indictment for larceny of
property belonging to a banking
company, the property was laid to
be m the manager of the bank.
The banking business was carried
on by a joint-stock banking com-
pany, and there were more than
twenty partners or shareholders;
but no registration, or appointment
of a pubuc officer, under 7 Geo. 4,
c« 46, was proved. The judge
amended the indictment by stating
the property to be in " W." (one of
the partners) " and others ": — ^Held,
that under 7 Geo. 4, c. 64, s. 14,
the amendment was right. Reg,
V. Fritchard, 8 Cox, C. C. 461 ; L.
& C. 84; 7 Jur., N. S. 557 ; 80 L.
J., M. C. 169 ; 9 W. R. 579 ; 4 L.
T., N. S. 840.
When an indictment is amended
at the trial, the court of appeal
cannot consider it as it originally
stood, but only in its amended
form. Reg. v. Wehster, L. & C.
77.
An indictment charged with the
intent to kill and murder Annie
Welton. The prosecution failed to
prove the child bad ever borne such
a name : — Held, that the indictment
might be amended. Reg. v. Wel-
ton, 9 Cox, C. C. 297— Byles.
A feme sole, ha\dng recovered
judgment in a county court, after-
wards married, and subsequently to
her marriage issued a judgment
summons out of the London Small
Debts Court, within the jurisdiction
of which the defendant was resid-
ing. The judgment summons was
headed as in the plaint in the coun-
ty court, and objections being there-
unto taken, on behalf of the de-
fendant, the judge amended, by
striking out the name of the origi-
nal plaintiff, and substituting tne
names of her husband and herself
as plaintiffs. The defendant was
then examined, and at the conclu-
sion of his evidence the judge di-
rected him to be prosecuted for per-
jury, on which charge he was after-
wards tried and found guilty : —
Held, that the amendment was not
within the jurisdiction of the judge,
and that there being no cause in
the altered name in existence, the
conviction could not be supported.
Reg. V, Fearce, 9 Cox, C. C. 258 ;
3 B. & S. 531 ; 9 Jur., N. S. 647 ;
11 W. R. 235 ; 7 L. T., N. S. 597.
An erroneous entry of the verdict
in criminal cases may be amended
from the judge's notes, but not
from the recollection of the judge.
Reg. V. Virrier, 12 A. & E. 317 ;
4P. &D.161.
An indictment for receiving, al-
leged by mistake that the prosecu-
tor, instead of the prisoner, knew
that the goods were stolen. The
502
PROCEDURE AND PRACTICE.
defect was not noticed till after
verdict, when a motion was made
in arrest of judgment; but the
court then amended the indict-
ment : — Held, that the amendment
could not be made after verdict;
and that the indictment was bad in
arrest of judgment. Req. v. Lark-
in, 6 Cox, C. C. 877 ; 23 L. J., M.
C. 125 ; Dears. C. C. 365 ; 2 C. L.
R. 775.
Indictment for obstructing a foot-
way leading from A. to G. The
footway was for half a mile from
its commencement, as described in
the indictment, a carriage-way ; the
obstmction was in the part beyond :
— ^Held, that this was a misdescrip-
tion, which ought to be amended
under 14 & 15 Vict. c. 100, s. 1.
Reg, V. Sturge, 8 El. <fc Bl. 734 ;
18 Jur. 1052 ; 23 L. J., M. C. 172.
The judge has power, under 14
& 15 Vict. c. 100, s. 1, to amend
an indictment for perjury, describ-
ing the justices before whom the
perjury was committed as justices
for a county, where they are proved
to be justices for a borough only.
Reg. V. Western, 1 L. R., C. C.
122 ; 37 L. J., M. C. 81 ; 18 L. T.,
N. S. 299 ; 16 W. R. 730 ; 11 Cox,
The secretary of a friendly so-
ciety, of which A. B. and others
were the trustees, was charged with
embezzling money belonging to the
society. In the indictment the
property was laid as " of A. B. and
others," without alleging that they
were trustees of the society : — ^Held,
that the indictment might be amend-
ed by adding the words " trustees
of," <fcc. Reg. v. Marks, 10 Cox,
C. C. 367— Chambers, C. S.
(v) NdUe prosequi.
A nolle prosequi can only be en-
tered by the authority of the attor-
ney-general. Reg. V. Dunn, 1 C.
& K. 730— Wiffhtman ; S. P., EU
worthy v. Bird, 9 Moore, 480 ; 2
Bing. 258.
Where, in an indictment fbr per-
jury, the attorney-general enters a
nolle prosequi on the part of the
crown, he does so on his own re-
sponsibility, and the Queen's Bench
will not interfere. Reg. v. AU^
9 Cox, C. C. 120.
An attorney-general is at liberty,
after having entered a nolle prose-
qui on an indictment, to file an ex-
officio information for the same of-
fence ; and the pendency of an in-
dictment or an information is not a
good plea to an information subse-
quently filed against the same party
for the same o&nce. Reg,y,mUi6k'
el, 3 Cox, C. C. 93.
2. Cefitral Crimmal Court
(a) Jurisdiction.
(4 cfc 5 Will. 4, c. 36 ; 9 <fc 10
Vict. c. 24.)
19 & 20 Vict c. 16, ''enables
" the Court of Queen's Bench to
'^ order indictments against persons
'^ charged with indictable offences
^^ committed out of the jurisdiction
" of the Central Criminal Court, to
^' be removed by certiorari, and to
'• be tried thereat"
When, after the defendant is
ordered to be tried under the above
act at the Central Criminal Court,
the Court of Queen's Bench will
not make it a condition under sect
24 that the prosecutor sliall furnish
the defendant with evidence which,
it is suggested, has been obtamed
by the prosecutor since the taking
of the depositions. Reg. v. Pabmsr,
5 EL & Bl. 1024.
It is not a sufficient ground for
the removal of an indictment un-
der 19 ifc 20 Vict c 16, 8. 3, for
trial at the Central Criminal Court,
that, on the occasion of the first
apprehension of the prisoner, some
months before the time for trial,
articles and paragraphs had ap-
peared in some papers of the pir-
ticular town in which the triil
would take place, of a nature likdj
to create prejudice against him, and
that the case had b^me matter oT
TRIAL.
503
eonversation amongst certain class-
es in that town, it not appearing
either that those papers had a gen-
eral circulation in the county, or
that the case had become matter of
general conversation in the county,
as the jurors would be taken from
the county as well as the town.
Beg, Y, Buxton, 11 W. R. 209—
Q.B.
In a prosecution at the Central
Criminal Court for publishing a
libel, it is not necessary, for the pur-
pose of giving jurisdiction, that the
profiecntor sliould have entered into
recognizance, or that the defendant
should have been in custody, or be
bound to appear according to 4 &
5 Will. 4, c. 36, s. 13. Beg. v.
Gregory, 7 Q. B. 274 ; 9 Jur. 593 ;
14 L J., M. C. 82.
A. was indicted at the Central
Criminal Court for forgery. He
was not shewn either to have com-
mitted the forgeiy, or to have been
in custody within the jurisdiction of
the court till the moment befoi*e his
trial, when he surrendered in dis-
charge of his bail : — Held, that he
was triable in that court under 11
Geo. 4 & 1 Will. 4, c. 66, s. 21, as
hemg in custody within its jurisdic-
tion. Beg. V. Smythies, 1 Den. C. C.
498; 2C.& K.878; T. AM. 195;
19L. J.,M. C. 31.
The Central Criminal Court has
jurisdiction to try accessories before
the fact to the felony of casting
away and destroying a ship on the
hi^h seas, on an indictment against
pnncipal and accessory, though the
pincipal felon is not amenable to
justice. Beg. v. WcMace, 2 M. C.
C. R, 200 ; Car. & M. 200.
A British subject might be in-
dicted at- the Central Criminal
Court under 9 Geo. 4, c 31, s. 7,
for the murder of a foreigner out
of the queen's dominions. Beg. v.
Azzopardi, 1 C. & K. 203.
A foreigner, one of the crew
of a British ship, committed man-
slaughter on board a British ship
while it was in a tidal river in
France. The ship was in a part of
the river where the tide ebbs and
flows, and where great ships go : —
Held, that the Central Criminal
Court had jurisdiction to try the
offender. Beg. v. Anderson, 11
Cox, C. C. 198 ; 17 W. R. 208 ; 19
L. T., N. S. 400; 38 L. J., M. C.
12; 1 L. R, C. C. 161.
8. TricU.
(a) Jurisdiction.
THoIX—By 30 & 31 Vict. c. 35,
8. 10, " the governor of a prison is
" to bring up the body of any per-
" son inmcted without writ of ha-
" beas corpus upon the order of a
" court of criminal jurisdiction for
" trial."
The jurisdiction of a recorder of
a borough is not determined or sus-
pended by the arrival of the judges
of assize in the same county, and
the rule applies equally to the juris-
diction of county justices of the
peace; therefore general quarter
sessions of the peace for a borough
or county may be held concurrent-
ly with assizes in the same county,
though it would be highly incon-
venient to do so. Smith v. Beg.
(in error), 3 New Sess. Cas. 564 ;
13 Jur. 850 ; 18 L. J., M. C. 207—
Q. B.
Where the quarter sessions of a
county occur while the judge of as-
size is proceeding with the trial of
prisoners in that county, after the
grand jury at the assizes has been
discharged, the better course is for
the quarter sessions not to proceed
with the trial of any prisoners, but
to dispose of all their other busi-
ness, and then to adjourn to a future
day. Anon., 9 C. <fc P, 790— Cole-
ridse.
One of the two defendants in an
indictment for conspiracy died after
the venire facias juratores was re-
turnable, and before trial ; the other
defendant was tried and found guilty:
— Held, no mistrial, although no sug-
gestion of the co-defendant's death
504
PROCEDURE AND PRACTICE.
had been entered on the record before
trial. Reg. v. Kenrick^ D. <fc M.
208 ; 5 Q. B. 49 ; 7 Jur. 848; 12
L. J., M. q. 135.
(b) Arraignment and Plea.
(7 (J- 8 Geo. 4, c. 28, 8. 1.)
An'aignments may be without
holding up the hand. Rex v. Rat-
cliffs, 1 W. Bl. 3.
Where a pnsoner, on being ar-
raigned, stated that he was deaf, on
which the indictment was read over
to him, and he apparently did not
hear it : the judge directed a jury
to be empannelled to try whether
he stood mute by the act of God or
out of malice. Rex v. Bolton, R. &
M. 78-Gifford.
And his counsel has a right to ad-
dress the jury and call witnesses for
him. Rex v. Roberts, Car. C. L. 57
— Park and Abbott.
If a person stands mute upon his
arraignment, the court may direct
the sheriff to return a jury instanter,
to try whether he stands mute ob-
stinately or by the visitation of God;
and if they find that he stands ob-
stinately mute, sentence may be
passed without further inquiry. Rex
V. Mercier, 1 Leach, C. C. 183 ; S.
P., Rex v. Steel, 1 Leach, C. C. 451.
Semble, that where a prisoner,
being called on to plead, remains
mute, the court cannot hear evi-
dence to prove that he does so
through malice, and then enter a
plea of not guilty under 7 & 8 Geo.
4, c. 28, s. 2 ; but a jury must be
empannelled to try the question of
malice, and it is upon their finding
that the court is authorized to enter
the plea. Reg. v. Israel, 2 Cox, C.
C. 263.
The 7 & 8 Geo. 4, c. 28, s. 2,
authorizing the court to direct a
plea of not guilty to be entered for
a party who stands mute of malice,
or will not answer directly to an in-
dictment, applies to the case of a
party who refuses to plead on tlie
ground that he had previously plead-
ed to another indictment for the
same offence, but which indictment
was not valid in consequence of its
having been found upon the testi-
mony of witnesses not duly sworn
to give evidence before the grand
jury. Rex v. BiUon, 6 C. & P. 92
— ^Littledale.
A prisoner declining to plead to
an indictment, the court directed a
plea of not guilty to be entered.
Re^. V. Bernard, 1 F. & F. 240.
A prisoner being arraigned on
two indictments for murder, and
having, with apparent intelligeDoe,
pleaded to one anddecUned to plead
to the other, the plea of not guilty
was entered for him by statute with
the assent of his counsel. The case
being then opened, and the first
witness examined, and it being then
set up by his counsel that he was
insane, or not in a fit state to be
tried : — Held, that the proper time
for making that suggestion was be-
fore the prisoner pleaded ; and, had
it been so made, a jury should have
been empannelled to try the ques-
tion whether he was sane and in a
fit state to be tried ; but as the trial
had been begim, and it would be
manifestly inconvenient to recom-
mence the trial of the collateral
issue, and as, moreover, the evideoee
as to the prisoner's present sanity
was very much mixed up with the
general question of his sanity, it
was open to the court under 39 &
40 Geo. 3, c. 94, to take the whole
of the evidence, and then leave to
the jury both questions as to his
state of mind at the time of the act
and at the time of the trial. Reg.
V. Sovthey, 4 F. & F. 864—Mellor,
In criminal cases a defendant
cannot plead a special plea in addi-
tion to not guilty. Reg. v. /Sftro-
kan, Paul and Bates, 7 Cox, C. C.
85 ; S. P., Reg. v. Skeen, 8 Cox, CX
C. 143 ; Bell, C. C. 97 ; 5 Jur., N.
S. 151 ; 28 L. J., M. C. 91 ; 7 W.
R. 255.
A prisoner, when called upon to
plead to an indictment, stood mate.
TRIAL.
505
A jury was empannelled and sworn
to try whether he was mute of
malice or by the visitation of God.
A verdict of mute of malice having
been returned, the court ordered a
plea of not guilty to be entered on
the record. Meg, v. Sckleter^ 10
Cox, C. C. 409 — Malcolm, Ker.
Com.
(c) WUMrawing Plea of Not
Guilty,
It is purely for the discretion of
the judge at the trial, whether a
plea of not guilty may be with-
drawn or not ; and the exercise of
roch discretion cannot be reviewed
upon a case reserved. JReg. v. Broum,
17 L. J., M. C. 135.
Where an indictment has been
removed and sent down tq trial as a
Queen's Bench record, the defend-
ant cannot withdraw his plea of not
goilty and plead guilty. Bex, v.
Barrett, 2 Lewin, C. C. 264— Al-
dereon.
A prisoner who has pleaded guilty
to a charge of larceny, and upon
vhom sentence has been passed,
eamiot be allowed to retract his
plea and plead not guilty. Beg, y,
SeU, 9 C. & P. 346— Mirehouse,
C.S.
On the trial of an indictment for
forgery against two, one of them,
after the opening speech for the
prosecution, asked to be allowed to
withdraw his plea of not guilty and
to plead guilty. This was done, and
the plea of guilty was recorded. He
was then examined as a witness for
the prosecution against the other,
and swore that he had no knowledge
of the instrument being forged.
Upon this he was allowed to with-
draw bis plea of guilty and to plead
not guilty, the jury withdrawing
their verdict. The trial of the other
party was then proceeded with, and,
on his acquittal, the one who had
withdrawn his plea was put upon
his trial. Beg, v. Chuter, 8 Cfox,
a C. 237— Bramwell.
Fish. Dig.— 38.
(d) Standing in t?ie Dock,
A person who surrenders to take
his trial, on a charge of felony at
the assizes, must be tried at the bar
of the court, and cannot take his
trial at any other part of the court,
even with the consent of the prose-
cutor. Beg, V. St, George, 9 C. &
P. 483— Parke.
A merchant was indicted for an
ofience against the act of parliament
prohibiting slave-trading. His coun-
sel applied to the court to allow
him to sit by him, not on the ground
of his position in society, but be-
cause he was a foreigner, and sev-
eral of the documents in the case
were in a foreign language, and it
would, therefore, be convenient for
his counsel to have him by his side,
that he might consult him during
his trial : — Held, that the applica-
tion was one which ought not to be
granted. Beg. v. ZiUueta, 1 C. <fc
K. 215 — Maule and Wightman.
Where a captain in the army
surrendered in cUscharge of his bail
to take his trial, for feloniously
shooting at another (in a duel), with
intent to kill him : — Held, that he
must take his place within the dock
like all other prisoners charged with
felony ; but on his expressing a wish
to that effect, he. was allowed to
have three friends to stand beside
him there. Beg, v. Douglas, Car. &
M. 193— Williams.
But a defendant who surrenders
to take his trial on a chai'ge of mis-
demeanor need not stand at the bar
to be tried, but may be allowed a
place at the table of the court.
Beg. V. Lovett, 9 C. & P. 462— lit-
tledale.
(e) Beading Indictment,
On a trial for felony the prisoner
is entitled to have the indictment
read slowly over once, and once
only. Beg, v. Dowling, 3 Cox, C.
C. 509.
An indictment for perjury, re-
moved by certiorari, came on to be
506
PROCEDURE AND PRACTICE.
tried as a Nisi Prius record. As
soon as the jury was sworn, the de-
fendant asked to have the indict-
'ment read at length to the court
and jury. The judge directed it to
be done, Reg. v. Newton^ 1 C. &
K. 469 — Atcherley, Serjeant.
(f) Separate Trial.
Where several prisoners are joint-
ly jndicted, the judge will not allow
a separate trial on the ground that
the depositions disclose statements
and confessions made by one pris-
oner implicating another, which are
calculated to prejudice the jury, and
that there is no legal evidence dis-
closed against the other prisoner.
Reg. v. Blackburn, 6 Cox, C. C. 383
— TTalfourd.
(g) Right of Acquittal on Indict-
ment of Several.
If several are charged with the
same offence, and no evidence is
given against one of them, he is en-
titled to an acquittal before the
others are called upon for their de-
fence, to enable them to call him as
a witness. Bounty case, 1 East,
313, n. And see Rex v. Rowland^
R. & M. 401.
On an indictment against several
persons, the counsel for the prosecu-
tion has a right, before opening his
case, to the acquittal of any defend-
ant he intends to call as a witness.
Rex V. Rowland, R, & M. 401 —
Abbott. . And see Rex v. Kroehl, 2
Stark. 343 ; 11 East, 313, n. ; Reg.
V. Owen, 9 C. & P. 88.
If two persons are jointly indicted
for obstructing a highway, and on
the evidence no joint act of obstruc-
tion appears, the j udge will, as soon as
the case for the prosecution is closed,
put the prosecutor's counsel to elect
which of them they will proceed
against, and then take an acquittal
for the other. Rex v. Lynn, 1 C. &
P. 528— Littledale.
( h ) Postponing or adjourning
Trial.
By 14 & 15 Vict. c. 100, s. 26,
part of 60 Geo. 3 & 1 Geo. 4, c. 4,
" as to the traverse of indictments
" in misdemeanors is repealed."
By s. 27, " no person prosecuted
" shall be entitled to traverse or
" postpone the trial of any indict-
'^ ment against him at any session of
'' the peace, session of oyer and ter-
" miner or session of gaol delivery:
" provided always, that if the court,
'^ upon the application of the person
^' so indicted or otherwise, shall be
" of opinion that he ought to be al-
'' lowed a further time, either to
" prepare for his defence or other-
'' wise, such court may adjourn the
" trial of such person to the next
'^ subsequent session, oil such terms
" as to oail or otherwise as to such
^^ court shall seem meet, and may
'' respite the recognizances of the
"prosecutor and witnesses accord-
" mgly, in which case the prosecu-
" tor and witnesses shall be bound
"to attend to prosecute and give
"evidence at such sub^uent ses-
" sion without entering into an?
"fresh recognizance for that por-
" pose."
Postponing.'] — ^A prisoner's coun-
sel moved to postpone a trial for
murder, on an affidavit which stated
that one of the witnesses for the
prosecution, who had been bound
over to appear at the assizes, was
absent, and that on cross-examina-
tion that witness could give mate-
rial evidence for the prisoner: —
Held, that this was sufficient ground
for postponing the trial, without
shewing that any endeavour had been
made on the part of the prisoner to
procure the witness's attendance, as
the prisoner m^ht necessarily ex-
pect, from his having been bound
over, that he would appear. Reg.
V. MaCarthy, Car. & M- 625—
Cresswell.
A defendant in an indictment for
TRIAL.
507
Sjury, tried at the sittings in the
een's Bench, was arretted on the
Wednesday before the trial, as he
was going to the chambers of his
connsel to deliver his brief. The
case was called on for trial on the
Saturday, and the judge would not
postpone it unless it could be shewn
that the arrest was by collusion
with the prosecutor; and the fact
that a witness for the prosecution
stood by while the arrest took
place is not sufficient to raise that
inference. Meg, v. Gordon^ Car. <fc
M. 410 — Denman.
An application to postpone the
trial of a prisoner charged with mur-
der, in order to afford an oppor-
tunity of investigating the evidence
and characters of certain witnesses,
who had not been examined before
the committing magistrate, but who
were to be called for the prosecu-
tion to prove previous attempts by
the accused on the life of the de-
ceased, was refused, lieg, v. John^
«>n, 2 C. & K. 354— Alderson.
If it is moved, on the part of the
prosecution in a felony, to put off
the trial, on the ground of the ab-
sence of a material witness, who has
not made a deposition before the
committing magistrate, the judge
will require an affidavit stating what
pomts the witness is expected to
prove, in order that he may form a
judgment as to the witness being
material or not. Reg. v. Savage^
1 C. & K. 75— Erskine.
An affidavit of a surgeon, that a
witness is the mother of an un-
weaned child, which is afflicted
with inflammation of the lungs, and
that the child could neither be
brought to the assize town nor sep-
arated from its mother without
danger to its life, is sufficient ground
for the absence of the witness, in or-
der to found a motion to postpone
the trial Ih,
A trial for murder was put off un-
til the next assizes, upon an applica-
tion on the part of the prosecution,
on the ground of the inability of a
material witness to attend, although
the witness was not examined be-
fore the magistrates, there being an
affidavit of a medical man as to an
injury to the witness, rendering it,
in his opinion, unsafe that he should
travel, and this even after the trial
had been apjiointed for a particular
day. Meg. v. Lawrence^ 4 F. & F.
901— Channell.
Before the spring assizes, 1840,
A. was committed to take his trial
at those assizes for shooting B. The
trial was postponed to the summer
assizes, on the ground that B. was
too ill from his wounds to be able
to attend to give evidence. Be-
fore the summer assizes B. died, and
at those assizes a true bill for the
murder of B. was found against A.,
and application was made, on the
part of the prosecution, to postpone
the trial to the next spring assizes, on
the ground of the illness of a material
witness. The judge granted the ap-
plication, and held, that A. was not
entitled to his discharge under the
7th section of the . Habeas Corpus
Act. Beg. V. Bowen, 9 C. <fc P. 509
—Williams.
Where it was stated by the grand
jury on their returning a true bill
for murder, that an important wit-
ness was too ill to give evidence in
court, the jury directed two sur-
geons to see the witness; and on
their stating on the voir dire that
the witness was too ill to give evi-
dence in court, the judge ordered
the trial to be postponed to the next ^
assizes, and the prisoner to be de-
tained in custody. Meg. v. Ckap'
man, 8 C. <fc P. 558 — Abinger.
An issue upon the identity of a
person is to be tried instanter. Mex
y. Rogers, 3 Burr. 1809.
A judge at the assizes may post-
pone a trial until the next assizes, if
he finds the principal witness wholly
incompetent to take an oath from
ignorance ; and may order the wit-
ness to be instructed in the mean
time by a clergyman in the princi-
ples of his duty, and the nature and
508
PROCEDURE AND PRACTICK
obligation of an oath. Hex v. White^
1 Leach, C. C. 430.
A motion to put off a trial, on an
indictment for felony, cannot be en-
tertained until after plea pleaded.
It is a good ground for putting off
a trial, that the jury panels at the
assizes have been taken from a
neighbourhood where an excite-
ment has been raised against the
prisoner likely to prevent a fair tri-
al. Heg, V. Bolam, 2 M. & Rob.
192 — Alderson and Parke.
If it is moved on the part of the
prosecution in a case oi felony to
postpone the trial on the ground of
the absence of a material witness,
the practice, where the absence of
the witness can be traced to the acts
of the prisoner or his friends, is not to
discharge the prisoner from custody,
except on very sufficient bail ; but
where no collusion appears between
the absent witness and the prisoner,
or his friends, the practice is to dis-
charge the prisoner on his own re-
cognizance. Hex V. Beardmorey 7
C. & P. 497— Patteson,
A defendant indicted for misde-
meanors, committed by him in the
West Indies in a public capacity,
under 42 Geo. 3, c. 85, is not en-
titled, upon an affidavit in the com-
mon form of putting offtt trial upon
the absence of a material witness,
to put off his trial until return made
to writs of mandamus to the courts
abroad, to examine witnesses, which
are directed to be issued in such
cases at the discretion of the court ;
but he must lay .before the court
such special grounds by affidavit,
as may reasonably induce them to
think that the witnesses sought to
be examined are material to his de-
fence. But the prosecutor in such
case is of course entitled to writs of
mandamus for the like purpose. JRex
V. JoneSy 8 East,^31.
The court will postpone until the
next assizes the trial of a prisoner
charged with murder, on an affidavit
by his mother that she would be en-
abled to prove by several witnesses
that he was of unsound mind, and
that she and her family were in ex-
treme poverty, and had been unable
to procure the means to prodace
such witnesses, and that she had
reason to believe that if time were
given to her the requisite funds
would be provided, lieg T. Lang-
hurst, 10 Cox, C. C. 353 ; 4 F. A P.
969— Channeil.
The affidavit of the prisoner's at-
torney, setting forth the information
he had received from the mother,
was held to be insufficient. lb.
Adjourning,'] — The judge in a
case of felony has no autliority to
order an adjournment (i. e. to an-
other day) on account of the mere
absence of the prosecutor and bis
witnesses. Reg. v. Parr, 2 F. A F.
861— Wightman.
Or to adjourn a criminal trial
when once the jury is sworn. Rtg,
V. Tempest, I F. & F. 381— Wat-
son.
But a prisoner's trial may be ad-
journed if the case has only been
opened by counsel for the prosecu-
tion, but not after evidence has
been called. Reg, v. JRohson, 4 F.
& F. 360— WiUes.
(i) Illness of Prisoner during Trial.
If a prisoner indicted for a felony,
with whom the jury is charged, is
by sudden ill^^ess during the trial
rendered incapable of remaining at
the bar, the jury may be dischai^ged
from the trial of tliat indictment,
and the prisoner, on his recovery,
tried by another jury. Bex v. Sis-
venson, 2 Leach, C. C. 546.
(j) Trial on a Verdict in a CYril
Case.
If a verdict is found for a defend-
ant in an action of slander; on a
justification of words of felony, the
plaintiff may be arraigned without
a grand jury. Cook v. Field, 3 Espt
133— Kenyon.
In an action for money recdved,
if it appears that the defendant le-
PLEAS IN ABATEMENT.
509
ceived the moDey from the plaintiff
to carry to a bank, and that instead
of 80 doing he kept it, the judge will
leave it to the jury to say, whether
he received it with an intent to steal
it, and then feloniously converted it ;
and if the jury finds this in the af-
firmative, Uie judge will direct a
verdict to be entered for the defend-
ant, and that the defendant shall be
tried for the felony on this finding.
Frosser v. How, 2 C. & P. 421—
Parke.
4. Plecis in Abatement.
The 7 Geo. 4, c. 64, s. 19, "for
"preventing abuses from dilatory
"pleas, enacts, that no indictment
" or information shall be abated by
" reason of any dilatory plea of mis-
"nomer, or of want of addition, or
"of wrong addition of the party of-
"fering such plea, if the court shall
" be satisfied by affidavit or other-
" wise of the truth of such plea ;
"but in such case the court shall
" forthwith cause the indictment or
"information to be amended ac-
" cording to the truth, and shall
"call upon such party to plead
"thereto, and shall proceed as if
"no such dilatory plea had been
" pleaded."
The court will not allow a defect-
ive plea in abatement, to an indict-
ment for a misdemeanor, to be
amended. Hex v. Cooke, 4 D. &
R.092; 2B. ifcC. ft'l.
Before this enactment, one indict-
ed for a misdemeanor might plead
in abatement a misnomer of his sur-
name—Shakepeare for Shakespeare,
which need not be taken for idem
sonans; and the plea concluding
with praying judgment of the in-
dictment, that he might not be com-
pelled to answer the same, was good.
■Rex V. Shahpeare, 10 East, 83.
Where a defendant was indicted
with an alias dictus, and pleaded in
abatement that he was not known
by such name, the plea must have
been demurred to, or issue taken
thereon ; and it could not be quash-
ed on motion. Hex v. Clark^ alias
Jones, 1 D. & R. 43 ; S. P,, Rex v.
Cooke, 4 D. & R. 114 ; 2 B. <fc C.
618.
Where a defendant pleaded in
abatement to an indictment for a
misdemeanor, that he was a peer,
such plea was bad on demurrer, for
not stating that he was a peer of
the united kingdom, and shewing
in what manner be derived his title.
Rex V. Cooke, 4 D. & R. 592 ; 2 B.
& C. 871.
A dilatory plea to an indictment
was set aside for want of an affidavit
to verify it. Rex v. Grainger,^ Burr.
1617 ; aS'. p., Reg. v. Dujffy, 9 Ir. L.
R. 163.
A defendant in an indictment for
a misdemeanor cannot plead over to
the charge, after a plea in abate-
ment for a misnomer, on which is-
sue was taken and found against
him. Rex v. Gibson, 8 East, 107.
See Reg. v. Phelps, Car. & M. 180.
A plea in abatement is a dilatory
plea, and must be pleaded with
strict exactness. O' Connell v. Reg.
(in error), 11 C. & F. 155 ; 9 Jur.
25.
Although the prosecutor having
demurred to a plea in abatement
concluded in bar, praying final
judgment :, — Held, that the court
was not precluded thereby, but wae
bound to give that judgment which
was right on the whole record.
Reg. V. Mitchell, 3 Cox, C. C. 94.
Where a replication to a plea in
abatement introduces new matter,
upon which issue may be taken, the
prosecutor is entitled to pray final
judgment. lb.
5. Pleas of Autrefois Convict and
Acquit,
Statute.]^BY 14 & 15 Vict. c.
M)0, s. 28, " on any plea of autre-
" fois convict or autrefois acquit, it
" shall be sufficient for any defend-
^* ant to state that he has been law-
" fully convicted or acquitted, as
" the case may be, of the said of-
" fence charged in the indictment."
610
PROCEDURE AND PRACTICK
Validity.] — A plea of autrefois
convict or acquit, which shews that
the judgment on the fonner indict-
ment has been reversed for error in
the judgment, ia not a good bar to
a subsequent indictment for the
same offence. Heg, v. Drury, 3 C.
& K. 193 ; 18 L. J., M. C. 189— C.
C. R.
Where, by reason of some defect
in the record, either in the indict-
ment, place of trial, process or the
like, a prisoner has not been lawful-
ly liable to suffer judgment for the
offence chare^ed, he has not been in
jeopardy in the same, which entitles
him to plead the former proceeding,
in bar to a subsequent indictment.
lb.
A prisoner is lawfully liable to suf-
fer punishment on an erroneous re-
cord, imtil it is reversed in a court
of error. Ih.
A judgment reversed is the same
as no judgment ; and upon a record
without any judgment no punish-
ment can be inflicted. lb.
A plea of autrefois convict of an
assault before justices, under 9 Geo.
4, c. 31, s. 27, is a bar to an indict-
ment for feloniously stabbing in the
same transaction. Beff. v. ^Walker,
2 M. & Rob. 446— Coltman.
But a previous summary convic-
tion for an assault under 24 & 25
Vict. c. 100, 8. 45, is not a bar to
an indictment for manslaughter of
the party assaulted, founded upon
the same facts. Heff. v. Morris, 10
Cox, C. C. 480; 36 L. J., M. C. 84;
1 L. R. C. C. 90.
Two were indicted for having, on
the 10th November, 1849, assaulted
P. They pleaded autrefois acquit,
and in their plea set out an indict-
ment for murder, the third count of
which alleged that they had mur-
dered the deceased, by beatings on
the 5th November and 1st Decem-
ber, 1849, and 1st January, 1850,
and on divers other days between
the 5 th November and 1st January ;
and the plea averred that the as-
saults charged in the second indict-
ment were identically the same as
those of which they had been ac-
quitted on the trial of the first
The replication was, tliat the prifu
oners were not acquitted of tlie fel-
ony and murder, including the name
identical assaults charged in the in-
dictment. On the iirst trial the
counsel for the crown had stated the
assaults as conducing to the death,
and had given them in evidence to
sustain the charge of murder. It was
proved, however, that the cause of
death was a blow inflicted shortly
before the death of the deceased,
which occurred on the 4th January,
but there was no evidence to shew
by whom the blow was struck; and
the prisoners were acquitted. The
judge, on the second trial, told the
jury, that if they were satisfied that
there were several distinct and m-
dependent assaults, some or any
one of which did not in any way
conduce to the death of the de-
ceased, it would be their duty to
find the prisoners guilty. The jury
found the prisoners guilty : — Held,
that the conviction was right, as
the prisoners could not, on the trial
for murder, have been convicted,
under 7 Will. 4 & 1 Vict. c. 85, s.
11, of the assaults for which they
were indicted on the second trial
Beg. V. Bird, T. & M. 437 ; 2 Den.
C. C. 94 ; 15 Jur. 193 ; 20 L. J., M.
C. 70 ; 5 Cox, C. C. 11.
An acquittdl on an indictmrat
for rape could not be successfully
pleaded to a subsequent indictment
for an assault with intent to com-
mit a rape, nor could an acquittal
on an indictment for feloniously
stabbing, with intent to do griev-
oue bodily harm, be successfully
pleaded to an indictment for an as-
sault, though, in each case, the
transaction was the same, and the
accused miglit have been convicted
of an assault under 7 Will, 4 41
Vict. c. 85, 8. 11. Beq. v. Gi$»m,
2 C. <fc K. 781— C. C. k
On the trial of an information for
a misdemeanor the judge discbaiged
PLEAS OF AUTREFOIS CONVICT, ETC.
511
the jury. The defeodant then put
a plea on the record, setting out the
fects under which the jury was dis-
charged, in the nature of a plea au-
trefois acquit: — Held, that this
matter could not be raised by way
of plea, but must be raised by way
of error on the record after convic-
tion. Reg, V. Ckarlesworth, 9 W.
R. 805 ; 5 L. T., N. S. 150 ; 4 L. T.,
N. S. 638— Q. B.
The prisoner stole the goods of J.
B. from his stall, which at the time
was in charge of R. B. his son, a
child of fourteen, who lived with
his father, and worked for him.
The ^rst indictment against him
for stealing the goods described
them as the property of R. B. The
sessions thinking this a wrong de-
scription directed an acquittal, and
caused a new bill to be sent up lay-
ing the property in J. B. To this in-
dictment he pleaded autrefois acquit:
—Held, that the plea could not be
sustained, for the prisoner could not,
on the evidence, have been convict-
ed on the first indictment, charg-
ing the property as that of R. B.,
and that the court could only look
at the first indictment as it stood,
without considering whether the al-
legation as to the ownership of the
goods might not have been amend-
ed so as to have warranted a con-
viction. Beg. V. Chreen^ Dears. & B.
CO. 113; 2 Jur., N. S. 1146; 26
L J., M. C. 17 ; 7 \:Jox, C. C. 186.
A plea of autrefois acquit cannot
be pleaded unless the facts charged
in the second indictment would, if
true, have sustained the first. Rex
V. Vandercamb, 2 East, P. C. 519 ;
2 Leach, C. C. 708.
A plea autrefois acquit of a burg-
lary, where the felony is laid as act-
ually committed, cannot be plead-
ed to an indictment for the same
burglary laid with intent to com-
mit the felony, for they are two dis-
tinct and diiferent oifences. Ih,
If a party charged with the crime
of murder, committed in the perpe-
tration of a burglary, is generally
acquitted on that indictment, he
cannot afterwards be convicted of
the burglary with violence, as the
general acquittal on the charge of
murder would be an answer to that
part of the indictment containing
the allegation of violence. Reg. v.
GovM, 9 C. & P. 364— Tindal and
Parke.
If, in a plea of autrefois acquit,
the prisoner was to insist on two
distinct records of acquittal, his plea
would be bad for duplicity. Rex v.
Sheen, 2 C. <fc P. 635— Burrough
and Littledale.
If the prisoner could have been
legally convicted op the fii*8t indict-
ment upon any evidence that might
have been adduced, his acquittal on
that indictment may be successfully
pleaded to a second indictment;
and it is immaterial whether the
proper evidence was adduced at the
trial of the first indictment or not.
Ih.
A person was acquitted of an as-
sault with intent to murder, but
was convicted of an assault with in-
tent to do grievous bodily harm,
and the prosecutor having subse-
quently died, he was indicted for
murder : — Held, that he was prop-
erly indicted. Reg. v. Salvi, 10 Cox,
C. C. 481,n.
A first count for murdering a
male bastard child, stated that the
prisoner gave and administered a
large quantity of oil of vitriol, and
forced the child to take into his
mouth and throat a large quantity
of the said oil of vitriol, the prison-
er knowing that the said oil of vit-
riol would occasion the death of the
child, whereby he became disor-
dered in his mouth and throat, and
by the disorder, choking, suffocat-
ing, and strangling occasioned there-
by, languished and died. The sec-
ond count was for murdering the
child, by administering a certain
acid called oil of vitriol, and forcing
the child to take a large quantity of
the said acid into his mouth and
throat, by means whereof he be-
512
PROCEDURE AND PRACTICR
came injured and disordered in his
mouth and throat, and incapable of
swallowing his food, and died of the
inflammation, injury and disorder
occasioned thereby. A plea, that
the prisoner had been acquitted for
muidering a base infant male child,
by giving and administering a cer-
tain deadly poison, to wit, oil of vit-
riol, and by forcing the child to
take, drink, and swallow down a
large quantity of the said oil of
vitriol, the prisoner knowing it to
be a deadly poison, whereby the
child became sick and distempered
in his body, and, by the sickness and
distemper occasioned thereby, lan-
guished and died, is a good bar to
the indictment. Bex v. Glarhy 1 B.
& B. 473.
One was indicted in Middlesex
for perjury committed in an affi-
davit, which indictment, after set-
ting out so much of the affidavit as
contained the false oath, and on
this he was acquitted ; afler which
he was indicted again in Middlesex
for the same perjury, with this dif-
ference only, that the second indict-
ment set out the jurat of the affi-
davit, in which it was stated to have
been sworn in London ; which was
traversed by an averment that in
fact the defendant was so sworn in
Middlesex, and not in London : —
Held, that he was entitled to plead
autrefois acquit, for the jurat was
not conclusive as to the place of
swearing ; and the same evidence as
to the real place of swearing the
affidavit might have been giveil un-
der the first as under the second in-
dictment, and therefore the defend-
ant had been once before put in
jeopardy for the same offence. Rex
V. Emden^ 9 East, 437.
Indictment that the defendant, in
the reign of the present king, kept
a common gaming-house; plea, that
the defendant, in the reign of the
present king, was acquitted upon
an indictment for keeping a com-
mon gaming-house in the reign of
the late king, against the peace of
our said lord the king ; and aver-
ring the identity of the offences:
demurrer, concluding with a prayer
of judgment of respondeat ouster :
— Held, first, that the plea was bad,
because the indictment on wluch the
acquittal was founded chained an
ofiTence committed in the reign of
the late king, and the defendant
could not by averment shew that
the offence charged in both indict^
ments was the same ; and secondly,
that the judgment on demurrer was
final, although the demurrer c(hi-
cluded with a prayer of judgment
of respondeat ouster. Rex v. Tay-
lor, 5 D. & R. 422 ; 3 B. & C. 502.
Trial,'] — A prisoner may plead
not guilty, after his special plea of
autrefois acquit is found against
him. Rex v. Wdch^ Car. C. L 56.
The court will not reject a plea
of autrefois convict on account of
the informal manner in which it is
handed in by the prisoner, but will
assign counsel to put it into a for-
mal shape, and postpone the trial,
to. give time for its preparation.
Rex V. ChamberUdn, 6 0. & P. 93—
Littledale.
The jury cannot be charged at
the same time to try the two issues
of autrefois acquit and not guilty.
Rex V. Roche, 1 Leach, C. C. 134.
Four persons were tried for a
rape, upon an indictment containing
counts charging each as principal,
and the others as aiders and abet-
tors. They were acquitted ; and it
being proposed on the following day
to try three of them for another
rape upon the same person (the sec-
ond indictment being exactly the
same as the first, with the omission
only of the fourth prisoner), they
pleaded autrefois acquit to the sec-
ond indictment, averring the iden-
tity of the oflfences. To this plea
there was a replication that the of-
fences were different : — ^Held, that
on this issue the prisoners' counsel
must begin. Rex v. Parry, 7 C. 4
P. 836.
PLEAS OF AUTREFOIS CONVICT, ETC.
513
The prisoners' counsel put in the
oommitmeat and the former indict-
ment, and also the minutes of the
former acquittal written on the in-
dictment. On this evidence the jury
found that the offences were the
same; and it being referred for the
opinion of judges, whether there
was any evidence to justify and
support the vei-dict, and if not,
whether such verdict was final, and
operated as a bar to any further pro-
ceedings by the crown upon the
second indictment : — ^Held, that the
verdict of the jury was final, and
the prisoners were discharged. Ih,
During the sitting under the same
commission, the original indictment,
and minutes of the verdict upon it,
are -receivable in evidence in sup-
port of a plea of autrefois acquit,
without a record being drawn up.
In order to his pleading autrefois ac-
quit in a case of felony, the prisoner
has not a right to a copy of the
second indictment, but he has a
right to have the indictment read
dowly. Ih,
A i)erson who is tried for felony
as a principal, and acquitted, can-
not plead that acquittal in h^r of
another indictment, which charges
him with being an accessory before
the fact to the same felony. Mex v.
PUirU, 7 C. <fc P. 575.
A verdict for a prisoner, on an
issue of autrefois convict, cannot be
set aside, and a new trial had,
though without evidence, and against
the opinion of the judge. Sex v.
Lea^ 2 M. C. C. 9.
A prisoner was tried, on the 6th
of April, 1863, upon an indictment
charging him with having, on the
22nd of January, 1863, stolen 25
lbs of copper, the property of A.,
and was acquitted. He was again
tried on the 29th of June, 1863,
upon an indictment which charged
him, in a first count, with having,
on tire 20th of September, 1862,
stolen a riddle, the property of A.,
and in the second count, with hav-
ing, on the 16th of January, 1863,
stolen five shovels, also the property
of A. The prisoner had been in
A.'s employ several years, and the
riddle and shovels were foimd in
his possession on the 21st of Jan-
uary, 1863, but there was no evi-
dence to shew when they were
stolen : — Held, first, that he was
not entitled to be acquitted upon
the second trial on the ground that
the charge of stealing the riddle and
shovels ought to have been included
in the first indictment, and that on
these facts a verdict was rightly
found against him upon a plea of
autrefois acquit. Reg. v. Knight ^Jj,
& C. 378 ; 9 Cox, C. C. 437 ; 9 L.
T., N. S. 808.
Held, secondly, that he was not
entitled to be acquitted on the
ground that the stolen property was
not proved to have been in his pos-
session recently after it was stolen.
Ih,
Proof,'] — ^A plea of autrefois con-
vict can only be proved by the rec-
ord ; and the indictment, with the
finding of the jury, indorsed by the
proper oflicer, is not sufiicient, al-
though it appears that no record
has been made upi But the court,
before whom the prisoner is brought
to be tried the second time, will
postpone the trial at the request of
the prisoner, on an affidavit of the
fact, to give time for an applica-
tion for a mandamus to compel the
making up of the record. Rex v.
Bouman, 6 C. & P. 101.
A plea of autrefois convict stated
that the prisoner was indicted, con-
victed, and sentenced, at a session
of the peace, duly holden by ad-
journment on the 5th of July ; rep-
lication, nul tiel record. The rec-
ord, produced in support of the plea,
stated that the indictment was found
at a session commenced and holden
on Monday, the 1st of July, and
that the court was adjourned until
Tuesday the 2nd ; that the court,
having re-assembled on Thursday
the 4th, was adjourned to Friday
514
PROCEDURE AND PRACTICE.
cc
u
the 5 th, when the prisoner was tried
and convicted : — Held, that the
plea of autrefois convict was not
proved by the record, inasmuch as
for want of an adjournment from
the Tuesday to the Thursday, the
proceedings on the Friday were cor-
am non judice, and a nullity. Hex
V. Bovmian, 6 C. <fc P. 337— Gase-
lee, Vaughan, and Taunton.
6. Demurrers,
Stame.]— By U & 15 Vict. c.
100, s, 25, " every objection to any
" indictment for any formal defect
" apparent on the face thereof shall
" be taken by demurrer or motion
" to quash such indictment, before
" the jury shall be sworn, and not
" afterwards ; and every court be-
" fore which any such objection
^' shall be taken for any formal de-
fect may, if it be thought neces-
sary, cause the indictment to be
" forthwith amended in such partic-
" ular by some officer of the court
" or other person, and thereupon the
'* trial shall proceed as if no such de-
" feet had appeared."
Upon a demurrer to an indict-
ment found in an inferior court, ob-
jections may be taken as well to
the jurisdiction of such court, as to
the Subject-matter of the indict-
ment. jRex V. Feamlet/, 1 T. R.
316.
It is no objection on demurrer,
that several different defendants are
charged, in different counts of an
indictment, for offences of the same
nature ; though it may be a ground
for application to the discretion of
the court to quash the indictment.
jRex V. Kingston^ 8 East, 41.
On demurrer to an indictment,
the superior court will look into the
whole record. Jiex v. Feartiley^ 1
Leach, C, C. 425.
In Felonies.'] — A prisoner cannot
of right demur and plead over to
an indictment for felony. Reg, v.
Odgers, 2 M, & Rob. 479— Cress-
well.
A prisoner on an indictment for
murder may demur, and if the de-
murrer is overruled, he may plead
not guilty ; and, semble, tJiat he
may demur and plead over to the
felony at the same time. Meg, v.
F helps, Car. & M. 180— Coltman;
8, P,y Reg, v. Adams, Car. & M.
299 — Coleridge. But see Reg, v.
MitcheU, 3 Cox, C. C. 31.
Where a prisoner, in felony, has,
in the absence of his counsel, plead-
ed to an indictment which is objec-
tionable on demurrer, the judge
will, on the application of his coon-
sel, allow him to demur before the
evidence is gone into. Reg, v. Pur-
chase, Car. & M. 617 — ^Patteson.
In embezzlement, if the prisoner
demurs to the indictment, and the
demurrer is decided against him, he
may still ^lead over to the felony,
and take ms trial. Tb,
Where a defendant had pleaded
inadvertently to an indictment un-
der circumstances which might shew
it to have been a mistake on his
part, the court refused to allow him
to withdraw his plea for the par-
pose of demurring, where the objec-
tion was one of a technioal char-
acter, not in any way affecting the
merits of the case. M/eg, v. .Swn,
3 Cox, C. C. 127— Pollock and
Coltman ; S, P,, Reg, v. Odgen, 2
M. & Rob. 479— Cresswell.
A mistake in the year of the
Queen's reign in which the offence
is stated to have occurred is cor-
rected by pleading over, and can
only be taken advantage of on de-
murrer. Reg, V. Fenvsick, 4 Cox,
C. C. 139 ; 2 C. & K. 915— Cress-
well.
In JUisdemeanors,'] — The court
has a discretion to allow a defend-
ant to demur and plead over to an
indictment for a misdemeanor. lUg.
V. Birmingham and Gloucester Hau-
way Company, 3 Q. B. 223 ; 2 G.
& D. 236 ; 6 Jur. 804.
An indictment for a nuisance is
not to be quashed, but is to be de-
RECOGNIZANCES.
515
marred to. Hex v. Sutton^ 4 Burr.
2116.
An indictment against a town-
ship for non-repair of a highway,
alleged that the inhabitants, *' the
common highway being in decay,
from the time whereof the memory
of man is not to the contrary ought
to repair, and still ought to repair
when and so oflen as it shall be-
come necessary .'' The indictment
contained no allegation that the de-
fendant had ever repaired the road.
The court granted leave to demur,
with liberty to plead over in case of
judgment against them on the de-
murrer. Iteg. V. Tryddyn^ 1 B. C.
C. 19 ; 21 L. J., M. C. 108— Erie.
Besides the common four-day rule
on a defendant in misdemeanor, to
join in demurrer to his plea, there
must be a peremptory rule, giving
him a certain day in the discretion
of the court, without* which judg-
ment cannot be signed against him.
Rex V. Johnson^ 6 East, 583.
JudgmerUA — If a defendant de-
murs to an mdictment, whether in
abatement or otherwise, the court
will not give judgment against him
to answer over, but final judgment.
Rex V. Gibson, 8 East, 107, 111.
If an indictment for felony is de-
murred to, and judgment is given
against the prisoner on demurrer,
Bach judgment is final, and sentence
will be passed upon it ; and it is not a
judgment quod respondeat ouster.
Reg. V. Faderman, 3 C. & K. 359 ;
T. & M. 286 ; 4 Cox, C. C. 359—
Alderson, Cresswell and Williams.
A judgment on demurrer in fel-
ony, on- the ground that the indict-
ment does not sufiiciently charge a
felony, is no bar to a subseauent
good indictment for the same felony.
Eeg, V. Richmond, 1 C. & K. 240—
Rolfe.
7. Recognizances,
(11 S^ 12 Vict. c. 42, 8. 20.)
To prosecute or appear,'] — ^When-
ever a prosecutor shall have prefer-
red a bill of indictment against a
defendant, and sliall move the court
for process to issue upon the indict-
ment against the defendant, the
prosecutor so applying shall, before
such process shall issue, himself en-
ter into such recognizances as the
court shall direct, to prosecute the
law with efiect against the defend-
ant, lieg. Gren., Central Criminal
Court, Jan. Sess. 1842 ; Car. & M.
254. "•
Where an indictment for felony
was found at the Central Criminal
Court against a peer of the realm
and several commoners, at a time
while the houses of parliament were
not sitting, the recognizances of the
commoners were respited from ses-
sion to session, until after the case of
the peer had been disposed of in the
House of Lords. Reg. v. Douglas^
Car.&M. 193.
Where the trial of prisoners had
been successively postponed for two
assizes, in consequence of the absence
of a material witness, and the affi-
davit on which application was made
for further postponement, stated,
that the witness in question was be-
lieved to have gone to India as a
soldier, so that there was not any
prospect of his soon return, the judge
ordered the recognizances of the
prosecutor to be discharged, and
discharged the prisoners without
compelling them to enter into any
recognizances for their ftiture ap-
pearance. Reg, V. Bridgman, Car.
& M. 271— Maule.
Where a defendant is under re-
cognizances to appear and take his
trial at a particular session of the
Central Criminal Court, no notice
of trial to the prosecutor is requisite,
and he is bound to be prepared to
try at that session. Ret/, v. Parker^
3 Cox, C. C. 299.
Indictment for misdemeanor at
the quarter sessions. The defend-
ant pleaded guilty, and was bound
by recognizances to appear for judg-
ment at the next quarter sessions,
and judgment was respited. At the
516
PROCEDURE AND PRACTICE.
next April sessionB judgment was
farther respited until the June ses-
sions, when judgment was given,
and the defendant sentenced to be
fined and imprisoned. On error
brought: — Held, that a court of
quarter sessions has power to respite
cases from one sessions to another.
JTeen v. Heg, (in error), 3 New
Sess. Cas. 25 ; 11 Jur. 1060 ; 10 Q.
B. 928 ; 16 L. J., M. C. 180 ; 2 Cox,
C. C. 341.
The record stated, that at the first
session '' it was considered and ad-
judged that the defendant should
enter into recognizances to appear":
— ^Held, that these words did not
give the order the effect of a judg-
ment, so as to oust the sessions of
their jurisdiction to give judgment
at the subsequent sessions, fo.
The 5 Geo. "2, c. 19, s. 3, requir-
ing the party removing a convic-
tion by a magistrate to enter into a
recognizance, with two sureties in
50^., conditioned to prosecute the
writ with effect, was not complied
with by the party and his two sure-
ties entering into a recognizance in
25/. each, but it must be in the en-
tire sum of 50Z. Jiex v, Dunn, 8
T. R. 217.
A sheriff has no authority to take
a bond for the appearance of persons
arrested by him, under process issu-
ing upon an indictment at the quar-
ter sessions for a misdemeanor ; he
can only take a recognizance for
their appearance. Bengoitgh v. Itos-
siter, 4 T. R. 505 ; 2 H. BL 418,
426.
MdarfftnffJ] — ^Where a prisoner
has made default, the recognizance
of the prosecutor may be enlarged
till the apprehension of the prisoner.
In re Young, 2 Cox, C. C. 280— Pat-
teson.
• Discharging.'] —Where a prisoner
has been committed for trial at the
assizes, and parties bound over by a
ma^strate to prosecute and give
evidence, the judge will not dis-
charge the reco^izances on an in-
timation that tne attorney-general
does not think it a proper case for
prosecution. JReg, v. FreaUey, 6
Cox, C. C. 75— Williams.
The court Refused to discharge,
without preferring a bill of indict-
ment, the recognizances of prosecut-
ors, being members of a society
for promoting religious knowledge
among the poor, who had caused a
servant to be committed for embez*
zlement; the application beiog
made not on the ground of any de-
fect in the evidence, but on the
ground that the prosecutors thought
that the reformation of the offenda
would be best promoted by such a
course. Rex v. Paul, 6 C. <fc P.
323— Park, Patteson, and Ghmiey.
But where, at the assizes, paii<^
officers were imder recognizances to
prosecute a pauper for obtaining
money by fafse pretences, the jwd^
permitted the recognizances to be
discharged, the party having been
in prison seyeral week&, and the
parish being unwilling to indict
Rex V. Adams, 6 C. & P. 324, n.—
Vaughan.
Where a defendant, on being taken
into custody on the 8th June, under
a judge's warrant issued against hun
on an indictment for a blasphemous
libel, entered into a recognizance to
appear and plead within the first
eight days of the ensuing Trinity
term, and to try the cause at the
Middlesex sittings after that term,
and pleaded not guilty, but did not
give notice of trial or make up the
record, either for the sittings after
Trinity or JViichaelmas term, nor
was any rule obtained for respiting
the estreating of the i^cognizance ;
and the prosecutors gave notice of
trial after Trinity and Michael-
mas terms, but the causes were not
tried in either ; but made remanets
to the sittings after Hilary, and the
defendant was ready to take his
trial on both these occasions; and
the recognizance was estreated is
EQlary term, without any notice
COMMISSIONS AND GAOL DEIIVERT.
517
Laving been given to the defendant,
or any motion made by the prose-
cutors : — Held, that the estreat was
regular, and conformable to the or-
dinary practice. Kexjsr. Clark^ 5 B.
& A. 728.
Where a trial for felony is post-
poned, on the application of the
counsel for the prosecution, on the
ground of the absence of a material
witness, it is in the discretion of the
judge, whether, on consideration of
the circumstances of each particular
case, he will order the prisoner to
be detained till the next assizes, or
admit liim to bail, or discharge him
on his own recognizance, liex v.
Osbam, 7 C. & P. 799— BoUand.
Fdlsdy entering into,^ — ^By 24 <fc
25 Vict. c. 98, s. 34, " whosoever,
" without lawful authority or ex-
" cuse (the proof whereof shall lie
"on the party accused), shall, in
** the name of any other person, ac-
" knowledge any recognizance or
" bail, or any cognovit actionem or
"judgment, or any deed or other
'* instrument, before any court,
"judge or other person lawfully au-
"thorized in that behalf, shall be
" guilty of felony."
8. Commissions and Gaol DeHvery,
An offence was committed within
a locality which had a separate body
of justices exercising jurisdiction
within the liberty, by virtue of three
Beparate commissions : first, the or-
dmary commission of the peace ;
secondly, a commission to try all
treasons, misprisions of treasons, in-
surrections, murders, felonies, man-
slaughters, <fec. ; thirdly, a general
commission of gaol delivery. Neith-
er of the commissionB contained any
non-intromittant clause; but the
general county magistrates, in fact,
exercised no jurisdiction within the
liberty, which had a gaol and sep-
arate custos rotulorum and clerk of
the peace : — Held, that these com-
missions did not oust the jurisdiction
of her Majesty's justices of gaol de-
livery for the whole county; and
that the prisoner having been re-
moved from the liberty by writs of
habeas ad deliberandum and re-
cipias corpus, was properly tried by
such justices. Reg, v. Or one ^ 3
Cox, C. C. 53--Wilde.
The power of justices of the peace
of a county, or of a recorder of a
borough, to try prisoners at quaiter
sessions, is not suspended or aifected
by the fact of the judges sitting un-
der the usual commission of assize,
oyer and terminer, and general
gaol delivery. Smith v. Reg, (in er-
ror), 13 Q. B. 738 ; 18 L. J., M. C.
207.
An allegation upon a record that
three judges executed a commission
in relation to the trial of prisoners,
to try before whom that commission
was issued, is an affirmative allega-
tion of the authority to perform
that duty, and is not rendered uncer-
tain by a subsequent statement that
the commission was directed to them
and others. G^Brien v. Reg, (in
error), 2 H. L. Gas. 465.
Prisoners triable under special
commissions may be discharged by
gaol delivery. Rex v. Platt^ 1
Leach, C. 157, 170.
A prisoner in custody under a
defective commitment may be dis-
charged under a gaol delivery. lb.
It IS not imperative on a comis-
sioner of gaol delivery to dis-
charge all the prisoners in the gaol
who were not indicted ; it being dis-
cretionary in him to continue on
their commitments such prisoners as
appear to him committed for trial,
but against whom the witnesses did
not appear, having been bound over
to the sessions. Anon.y R. & R. C.
C. 173.
The judges'* commission of gaol
delivery applies only to untried pris-
oners in the gaol, and not to untried
prisoners in houses of correction.
Reg. V. ArleU, 2 C. & K. 596— Pat-
teson.
A special commission for the trial
of a prisoner having been read in
518
PROCEDURE AND PRACTICE.
open court at the opening of the
commission, immediately before the
delivery of the charge to the grand
jury, an application made at the ar-
raignment by his counsel for the
commission to be then read a second
time, upon the ground that it had
not been read in the presence of the
prisoner, was refused. lUg, v.
Bernard, 1 F. & F. 240.
Under a commission of oyer and
terminer, the general court may be
divided into as many courts as con-
venience requires ; and each separ-
ate court is to be considered as held,
not only before the judge actually
sitting, but also constructively be-
fore all the members of the commis-
sion then acting under it. Leverson
V. Heg. (in error), 38 L. J., M. C.
97 ; 4 L. R., Q. B. 394 ; 20 L. T.,
K S. 486.
9. Restoring Money found on Pris-
oners,
Hestitution and Recovery of Stolen
JFVoperQ/.l— By 30 & 31 Vict. c. 35,
8. 9, " Wnere any prisoner shall be
" convicted, either summarily or
" otherwise, of larceny or other of-
" fence, which includes the stealing
" of any property and it shall ap-
" pear to the court by the evidence
" that the prisoner has sold the
" stolen property to any person, and
" that such person has had no knowl-
" edge that the same was stolen,
" and that any monies have been
" taken from the prisoner on his ap-
" prehension, it shall be lawful for
" the court, on the application of
" such purchaser, and on the restor-
" ation of the stolen property to the
" prosecutor, to order that, out of
'^ such monies a sum not exceeding
" the amount of the proceeds of the
" sale be delivered to the purchaser."
The court will direct money found
upon a prisoner to be restored to
him before trial, if it appears by the
depositions that it is in no way ma-
terial to the cha^e upon which he
is to be tried. Rex v. Bamett, 3 C.
& P. 600— Park.
The judge will not grant an or-
der for the delivery to a prisoner of
money found on his person : for,
semble, neither a judge nor a justice
of the peace has power to make sach
an order. Reg, v. Pierce, 6 Cox,
C. C. 117.
A constable who apprehends a
prisoner has no light to take away
from him any money which he has
about him, unless it is in some way
connected with the offence with
which he is charged ; as he thereby
deprives him of the means of mak-
ipg his defence. Reg, v. 0^ Donnelly
7 C. <fc P. lSS:S.P.,Rexy.Kifue^,
7 C. & P. -447 ; Rex v. Jones, 6 C.
& P. 343 ; Rex v. Burgiss, 7 C. A
P. 488— Littledale.
Where a prisoner, a week after
the commission of the offence, was
apprehended on a charge of robbing
A. of 25/. in notes, and 9/. in gold ;
and on the prisoner was found the
sum of 12/. in gold, but none of it
identified : the judge ordered 5/. to
be restored to the prisoner, in order
to enable him to make his defence.
Rex V. Rooney, 7 C. & P. 515—
Littledale.
There is no objection to a prison-
er who is under a charge of felony,
executing, before his tnal, a power
of attorney, to obtain money tirom a
savings' iMink, for the purpose of
paying his attorney for conducting
his ddence, or paying any other
bon& fide debt. Rex v. (hxon, 7
C. & P. 651— Vaughan.
A defendant, committed to take
his trial at the assizes for assaulting
a constable, had 21. Ss, Sd. taken
from him by the constable who con-
veyed him to prison, to pay for (as
was alleged) the expenses of con-
veying him to the prison, and his
maintenance in prison till the trial,
this being the ordinary practice in
the county of Stafford : — Held, that
the. practice was quite wrong, and
the judge directed the money to be
restored to the defendant. jReg. t.
Bassy 2 C. <fe K 822— Piatt.
AFFTOAVrrS.
519
A judge has no power, either by
statute or at common law, to direct
the dis^sal of chattels in the posses-
sion of a convicted felon, not be-
longing to the prosecutor. Reg, v.
London {Corporation)^ El. Bl. &
EL 509 ; 4 Jur., N. S. 1078 ; 27 L.
J., M. C. 231. S, CI, nom. Reg. v.
Pierce, Bell, C. C. 235 ; 8 Cox, C.
C. 344.
10. Contempt of Court,
• Service of an order of a court of
general gaol delivery, calling on the
editor of a newspaper " to answer
for contemptuously publishing the
proceedings of a trial there," at the
office where the newspaper was pub-
lished, was good service within the
38 Geo. 3, c. 78, s. 12, and the edit-
or not having appeared, the fine
was held to be properly imposed
upon him in his absence. Mex v.
Clement, 4 B. <jb A. 218.
Exhibiting in an assize town an
inflammatory publication, respect-
ing a crime about to be tried at the
assizes, is not a contempt which the
judge can interfere to stop, by com-
mitting thej)arty exhibiting. Rex
T. GiJham, M. & M. 165— Littledale
and Gaselee.
11. Affidavits.
The court will direct an affidavit
in a case of misdemeanor, which
contains matter both scandalous and
irrelevant, to be removed from the
files of the court ; and the party
who filed it is liable to be visited as
for a contempt of court. Reg, v.
Gregory, 1 C. <fc K. 228— Parke
and Coltman.
If an afiidavit contains matter
that is irrelevant and scandalous,
the court, though it cannot direct
its removal from the files, will give
the party attacked an opportunity
of denying the defamatory matter,
upon oath, by a counter affidavit.
XLTV. Op Jubies and Chal-
lenges.
1. Grand, 529.
2. Jwrpnen, 521.
S. ChaHmgtM, 523.
4. View, 527.
5. Locking-up, 527.
6. Discharge of, 527.
7. Jury Procesi, 528.
6 Geo. 4, c. 50 ; 7 <fc 8 Geo, 4, c.
28, 8.2; 15 <fc 16 Via. e. 76, «. 105.
In High Treason. See Trea-
son.
'^ As to the qualification and lia-
" bility of burgesses to be jurors,"
see 5 <fc 6 Will. 4, c. 76, ss. 121,
122, 123.
By 6 <fc 7 Vict. c. 85, s. 2, " wher-
" ever in any legal proceedings any
" legal proceedings whatever may
" be set out, it shall not be neces-
" sary to specify that any particu-
" lar persons who acted as jurors
" had made affirmation instead of
'' oath, but it may be stated that
" they served as jurymen, in the
'' same manner as if no act had
" passed for enabling persons to
" serve as jurymen without oath."
1. Grand.
Constitution and Ditties.'] — If the
grand jury, at the assizes or ses-
sions, has ignored a bill, they can-
not find another bill against the
same person for the same oifence at
the same assizes or sessions, and if
such other bill is sent before them
they should take no notice of it.
Reg. V. Humphreys, Car. & M.
601 — ^Patteson. See contra, Reg.
V. Nevston, 2 M. & Rob. 503—
Wightman.
An Irish peer ought not to serve
on a grand jury, unless he is a
member of the House of Commons,
he then being to all intents and
purposes a commoner. In re Head-
ley (Lord), R. & R. C. C. 117.
A person may serve on the grand
jury although he is not a freehold-
er. Anon., K <fe R. C C. 177.
520
OF JURIES AND CHALLENGES.
A fi^rand jury ought not to con-
sist of more than twenty-three per-
sons. Hex V. Marshy 1 N. & P.
187 ; 6 A. & E. 236 ; 2 H. & W.
366 ; 1 Jur. 38.
Where more than twenty-three
persons are sworn upon a grand
jury, and a bill of mdictment is
found by them, to which a defend-
ant pleads, and is tried and found
guilty, the court will not quash the
mdictment. Ih,
The court will not receive an af-
fidavit of a grand juror as to what
passed in the grand jury-room, up-
on the subject of a bill of indict-
ment. Ih.
The grand jury returned a bill of
indictment which contained ten
counts, for forging and uttering the
acceptance of a oill of exchange,
with an indorsement — " a true bill
on both counts," and the prisoner
pleaded to the whole ten counts.
After the case for the prosecution
had concluded, the prisoner's coun-
sel pointed this out. The grand
jury was discharged, and the judge
would not allow one of the grand
jurors to be called as a witness to
explain their finding. J^g. v.
Cooke, 8 C. & P. 582— Patteson.
The grand jury had come into
court and had been discharged and
had left the court, but had neither
left the building nor separated.
The judges directed them to be
sent for oack into court, and di-
rected another bill of indictment
(the witnesses on which were going
abroad) to be sent before them.
Meg, V. UoUoioayj 9 C. & P. 43 —
Parke.
A grand jury has no authority
by law to ignore a bill for murder
on the ground of insanity, though
it appears clearly from the testi-
mony of the witnesses, as examined
by them on the part of the prose-
cution, that the accused was in fact
insane ; but if they believe that
the acts, if they had been done by
a person of sound mind, would
have amounted to murder, it is
their duty to find the bill; other-
wise the court cannot order the
detention of the party during the
pleasure of the crown, as it can
either on arraignment <!(- trial un-
der the 39 <fe 40 Geo. 3, c. 94, ss. 1
& 2. Reg. v. Hodges, 8 C. & P.
195 — ^Alderson.
Semble, that no objection to
the caption of an indictment
for an allegation that the grand
jurors were sworn and affirmed,
can be sustained without shew-
ing that those who were sworn
were persons who ought to hare
affirmed, or that those who were
affirmed were persons who ought
to have been sworn. Muloahy v.
Meg. (in error), 3 L. R, H. L. Gas*
306.
A material witness refused to
give any evidence whatever to the
grand jury : — ^Held, that the grand
jury could not read the deposition
of such witness as evidence, to en-
able them to find* a bill. Meg. v.
Mendie, 11 Cox, C. C. 209-^han.
nell.
Swearing Witnesses?^ — By 19 &
20 Vict. c. 54, 8. 2, " it shall not be
** necessary for any person to take
" an oath in open court in order to
" qualify himself to give evidence
" before a grand jury.'*
By s. 1, " the foreman of a grand
^' jury empannelled in England and
" Wales is empowered to examine,
*' on oath or amnnation, all persons
" who shall appear before a grand
" jury to give evidence in support
" of any bill of indictment The
" name of every witness examined,
" or intended so to be, shall be *m-
" dorsed on the bill of indictment,
'^ and the foreman shall write bis
" initials against the name of each
" witness so sworn and examined."
By s. 3, "the word ' foreman' is
" to include any member of the
" grand jury who may for the time
" being act on behalf of the fore-
" man in the examination of wit*
" nesses."
JURYMEN.
521
Where the grand jury has found
a bill, the judges before whom the
case comes to be tried, ought not to
inquire whether the witnesses were
pro[)eTly s^oni previously to their
going before the jury ; and it seems
that an improper mode of swearing
them will not vitiate an indictment,
as the grand jury is at liberty to
find a bill upon their own knowl-
edge only. Reg. v. RvsseU^ Car.
AM. 247— Wightman.
If witnesses go before the grand
jury without being sworn, and the
bill is found, and the prisoner tried
and convicted, it is proper to recom-
mend him for a free pardon. Hex
T. Dickinson^ R. & R. C. C. 401.
A grand jury cannot, on a sus-
picion that the witness has been
tampered with by the prieoner, re-
ceive in evidence his written expla-
nation in lieu of his parol testimony,
for the purpose of finding a bill.
Ihnby*$ case, 1 Leach, C. C. 514.
2. Jurymen.
Jurors.]-!!! criminal cases, twelve
jurors must appear on the record.
Hex V. St. MicJiael, 2 W. Bl. 718.
A new paneLpf seventy-two jur-
ors may be ordered by the judge
to be summoned during the assizes,
and a conviction for felony by a
jury selected therefrom, after chal-
lenging, though more than forty-
eight, is valid. Reg. v. Cropper,
2M. C. C. 18.
Upon the trial of an indictment
for a misdemeanor, which continued
more than one* day, the jury, with-
out the knowledge or consent of the
defendants, sepamted at night: —
Held, that tne verdict was not
therdTore void. JRex v. Kinnear,
2 B. 4fc A. 462.
In general, the assent of all the
jury to the verdict pronounced by
the foreman in tiieir presence and
hearing is to be conclusively in-
ferred ; and no affidavit can in any
case be admitted to the contrary.
Rex V. Woder, 2 Stark, 111.
If during the trial of a felony it
Fisn. Dig.— 39.
is discovered that the prisoner has a
relation on the jury, this is no
ground for discharging the jury.
Meg. V. Wardle, Car. & M. 647—
£rskine.
The exemption from serving as
jurymen, claimed by the members
of the Barbers' Company, under
the charters of 1 Edw. 4, and 5
Car. 1, and the 18 Geo. 2, c. 15,
does not extend to the Central
Criminal Court, but is confined to
the local courts of the city, viz.
those holden before the mayor, the
sheriff or the coroner. White, In re,
Car. & M. 189.
The jury should take the law
from the judge; and therefore,
when cases had been cited to the
jury in a legal argument, and he
had given an opinion on them, they
were not allowed to be read to the
jury in the address of the prisoner's
counsel to them. Reg. v. Parish,
8 C. & P. 94— Abinger.
In a case of felony, the judge
will not direct the jury to find
special facts, and the jury may, if
they think proper, find a general
verdict, instead of finding special
facts with a view to raise a ques-
tion of law. Reg. v. AUday, 8 C.
& P. 136— Abinger.
If a jury of matrons wishes to
have the evidence of a surgeon be-
fore they give their verdict, they
should return into court, and the
surgeon should be examined as a
witness in open court. Reg. v.
Wycherley, 8 C. & P. 262— Gur-
ney.
Where, in a criminal prosecu-
tion, it is essential to prove the par-
ticular value of an article, the jury
majr use that general knowledge
which any man can bring to the
subject ; but if any of the jurors
has a particular knowledge on the
subject, arising from his being in
the tra[de, he ought to be sworn
and examined as a witness. Rex
V. Rosser, 7 C. & P. 648— Vaughan.
Jurors, Swearing.] — By 80 & 31
522
OF JURIES AND CHALLENGES.
Vict. c. 35, s. 8, " a juror in any
" criminal proceeding refusing or
" being unwilling, from alleged con-
" gcientious motives, to be sworn,
"may be permitted, on the court
" being satisfied of the sincerity of
" the objection, to make a solemn
" affirmation or declaration."
Swearing Jurors,'] — ^A Scotch cov-
enanter may be sworn in as a jury-
man in a court of criminal law by
the ceremony of holding up his
hand, without kissing the book.
Walker'^s ease, 1 Leach, C. C. 498.
Upon trial of a prisoner for mur-
der, the name of Joseph Henry
Thome was called from the jury
panel as a juror to try him, when
William Thomiley, who was also
upon the jury panel, by mistake
answered to the name, went into
the jury-box, and, not being chal-
lenged, was duly sworn; the trial
proceeded, and the prisoner was
convicted and sentenced. The mis-
take was not discovered till the fol-
lowing day: — Held, that this was
not a question of law arising at the
trial over which the Court of Crim-
inal Appeal had jurisdiction. i?e^.
V. MeUor, Dears. & B. C. C. 468 ;
4 Jur., N. S. 214 ; 27 L. J., M. C.
121 ; 7 Cox, C. C. 454.
Held, also, that there had been a
mistrial, .and that the court had
jurisdiction to set aside the verdict
and judgment ; and that the prop-
er course was to order a venire ae
novo. lb,
A juror was summoned in error,
but not returned in the panel, and
in mistake was sworn to try, during
the progress of the trial these facts
were discovered. The jury was dis-
charged, and a fresh jury consti-
tuted, by taking another juryman
in the place of the one who had
served in en'or. Heg, v. Phillips,
11 Cox, C. C. 142— Russell Guraey.
De MedietcUe.] — ^By 6 Geo. 4, c.
50, 8. 47, " nothing therein con-
'' tained shall extend or be con-
" strued to extend to deprive any
*' alien indicted or impeached o(
" any felony or misdemeanor of the
" right of being tried by a jury de
" medietate linguae ; but on the
" prayer of every ahen so indicted
" or impeached, the sheriff or other
" proper minister shall, by com-
" mand of the court, return for one
*' half of the jury a competent
" number of aliens, if so many
" there be in the town or place
" where the trial is had, and if not,
'' then so manv aliens as shall be
" found in the same town or place,
" if any ; and no such alien jnror
'^ shall be liable to be challenged
" for want of freehold or for any
" other qualification required hy
" that act, but every such alioi
" may be challenged for any other
" cause, in like manner as if he
" were qualified by the act."
None but aliens are entitled to
be tried by a jury de medietate
lingusB. I^eg, v. Manning, 1 Den.
C. C. 467 ; T. & M. 155 ; 2 C, &
K. 887; 13 Jur. 962; 19 L J.,M.
C. 1 ; 4 Cox, C. C. 81.
By 7 & 8 Vict. c. 66, s. 16, any
foreign woman married, or who
shall be married, to a natural-bom
subject, or person naturalized, shall
be deemed and taken to be herself
naturalized, and to have all the
rights and privil^es of a natoral-
born subject : — ^^Id, that a wo-
man, who was a native of Lausan-
ne, in Switzerland, and was mar-
ried to a British subject, was not
entitled to a jury de medietate lin-
guae, as by her marriage her ciril
and political status was changed,
she having ceased to be an alien,
and having to ali intents and pur-
poses become a British subject. Ih-
Semble, that when an alien is in-
dicted jointly with a British sub-
ject, he Is ousted of his privilece,
and cannot have a jury de medie-
tate linguae. lb.
Where a jury de medietate is
claimed by a foreigner, on a trial
for murder, the crown is compelled
CHALLENGES.
528
to shew cause of challenge to a
foreign juror after the panel has
heen called over, notwithstanding
that the nanel has not been ex-
hausted bj^giving formal challen-
ges. The challenge must be made
before the book is given into the
hands of the jury, and before the
officer has recited the oath, and it
is too late, thoush made before the
juror kisses the book. Reg. v. Gi-
orgetii, 4 F. & F. 546 — Channell.
Taken iU during Iricd."] — If a
juryman is taken so ill as to be in-
capable of attending through the
trial, another juryman returned in
the panel may be added to the
eleven jurymen, but the prisoner
should be offered his challenges
over again as to the eleven, the
eleven should be sworn de novo,
and the trial begin again. Hex v.
JSchmrds, R. & R. C. C. 224; 2
Leach, C. C. 621, n.; 3 Camp. 207,
n. ; 4 Taunt. 309.*
Where a juryman is taken so ill
as to be unable to continue, anoth-
er juryman may be sworn with the
eleven jurymen already on the trial,
and the witnesses already heard be-
ing recalled. Heg, v. JSeere, 2 M.
<fc Rob. 472— Cresswell ; S. P., Hex
V. Sccdbert, 2 Leach, C. C. 620.
Copi/ of Panels,] — A prisoner in-
dicted for felony is not entitled to a
copy of the jury panel. JReg, v.
Dowling, 3 Cox, C. C. 509.
3. Challenges.
By 6 Geo. 4, c. 50, s. 29, " in all
inquests to be taken before the
court of King's Bench, and all
courts of oyer and terminer and
gaol delivery, wherein the king is
a party, howsoever it be, notwith-
standing it be alleged by them
that sue for the king, that the
jurors of those inquests, or some
of them, be not mdifferent for the
king, yet such inquests shall not
remain untaken for that cause ;
but if they that sue for the king
u
u
u
u
u
u
(C
u
u
u
u
u
" will challenge any of those jurors,
"they shall assign of their chal-
" lenge a cause certain, and the
" truth of the same challenge shall
" be inquired of according to the
" custom of the court ; and it shall
" be proceeded to the taking of the
^' same inquisitions as it shall be
" found, if the challenges be true
" or not, after the discretion of the
" court, and no person arraigned for
" murder or felony shall be admit-
" ted to any peremptory challenge
" above the number of twenty."
By 7 & 8 Geo. 4, c. 28, s. 3, " if
" any person indicted for any trea-
" son, felony, or piracy, shall chal-
" lenge peremptorily a greater num-
" ber of the men returned to be of
" the jury than such person is en-
" titled by law so to challenge, in
" any of the said cases, every per-
" emptory challenge beyond the
" number allowed by law in any of
"the said cases shall be entirely
" void, and the trial of such person
" shall proceed as if no such chal-
" lenge had been made."
The challenge of a juror, either
by the crown or by the prisoner,
must be before the oath is com-
menced. The moment the oath has
begun it is too late. The oath is
begun by the juror taking the book,
having been directed by the officer
of the court to do so ; but if the
juror takes the book without au-
thority, neither party wishing to
challenge is to be prejudiced there-
by. Beg. V. Frost, 9 C. & P. 136—
Tindal, Parke and Williams.
After issue joined between the
crown and the prisoner when the
jury is called, and before they are
swom, is the only time when the
prisoner has the right of challenge.
JReg. V. JTcy, 3 C. & K. 371 ; T. &
M. 62, 63 ; 2 Den. C. C. 351 ; 15
Jur. 1065.
Upon a challenge for cause, the
person making the challenge must
be prepared to prove the cause.
JRex V. Savage, 1 M. C. C. 51.
It is no objection in arrest of
524
OF JURIES AND CHALLENGES.
judgment that the sheriff, who was
the prosecutor, returned the lury; it
ought to have been taken by way
of challenge. Hex v. Sheppard^ 1
Leach, C. C. 101.
It is not a ground of challenge
that a juror on other trials has not
found a verdict for the crown. Saw-
don* s case^ 2 Lewin, C. C. 117 —
Coleridge.
If, on the trial of a case of fel-
ony, the prisoner peremptorily chal-
lenges some of the jurors, and the
counsel for the prosecution also
challenges so many that a full jury
cannot be had, the proper course is
to call over the whole of the panel
in the same order as before, only
omitting those who have been per-
emptoruy challenged by the prison-
er, and as each juror then appears,
for the counsel for the prosecution
to state their cause of challenge;
and if they have sufficient cause,
and the prisoner does not challenge,
for such juror to be sworn. Heg,
V. Geach, 9 C. & P. 499— Parke.
It is no cause of challenge of a
juror by the counsel for the prose-
cution in case of felony, that the
juror is a client of the prisoner, who
is an attorney. lb.
Nor that the juror has visited the
prisoner as a friend since he has
been in prison. lb.
In a case of felony, after a pris-
oner has challenged twenty of the
jurors peremptorily, he may still ex-
amine any other of the jurors who
are subseijuently called, as to their
qualification. lb.
There can be no peremptory
challenges in collateral issues. Hex
v. Radclife, 1 W. Bl. 3.
No challenge, either to the array
or to the polls, can be taken until a
full jury has appeared; therefore,
where the challenges are taken- pre-
viously, they are in'egularly made,
and out of season. Hex v. Ed-
monds^ 4 B. & A. 471.
No jury can be challenged until
a full jury appears in the box. Reg.
V. Lacey^ 3 Cox, C. C. 517.
Alienage is a ground of challenge
to a juror ; but if the party has au
opportunity of making his chal-
lenge, and n^lects, he cannot afW-
wards make the objection. Rex v.
Sutton^ 8 B. & C. 417 ; S. 0. hohl
Rex V. Despard, 2 M. <fe R. 406.
A prisoner, in a case of felony,
having challenged twenty jurors
peremptorily, cannot withdraw one
of those challenges to challenge an-
other jury, instead of one that he
had previously challenged. Rex v.
Parry, 7 C. & P. 836 ; 1 Jur. 674
— ^Bolland.
On the trial of an indictmeit for
a riot, it is ground for the proseco-
tor's challenging a juror, that he is
an inhabitant of the town where
the riot occurred, and that he has
taken an active part in the matter
which led to it. Reg. v. Swrnn, %
M. & Rob. 112 ; 2 Lewin, C. C. 116
— Coleridge.
The right of a prisoner to a per-
emptory cliallenge of jurors to the
number of twenty exists in all cases
of felony, and is not confined to
those which are punishable capital-
ly. Gray v. Reg. (in error), 11 G.
& F. 427 ; 8 Jur. 879.
A challenge of the array, stating
that the sheriff " has not dioeenthe
panel indifferently and impartially,
as he ought to have done^ and that
the panel is not an indifferent pan-
el," is bad, as being too general
Reg. V. Hughes, \ C. & K. 235—
Gurney and Cresswell.
On the trial of a misdemeanor on
tlie crown side of the assizes, it is a
fair mode of practice to allow the
defendants to object to the jurors,
as they are called, without shewing
any cause, till the panel is exhaust-
ed, and then to recall the jurors in
the same order in which they were
called at first, and then not to allow
any challenge except for 'cause, and
this is the constant practice on the
Welsh circuit, where challenges of
jurors very frequently occur, /^^y-
V. Blakeman, 3 C. & K. 97— Wil-
liams.
CHALLENGES.
525
Where a prisoner was found
giiilty on an indictment for larceny,
which contained a count for a pre-
vious conviction, and after convic-
tion for the larceny, the court
thought fit to swear the jury afresh
to try the question of whether the
prisoner had been previously con-
victed : — Held, that he was not en-
titled to challenge the jury afresh,
Reg. V. Key, T. & JVL 623 ; 2 Den.
C. C. 347 ; 3 C. & K. 371 ; 15 Jur.
1065 ; 21 L. J., M. C. 35.
The right of ordering jurors to
stand by, in cases of misdemeanor,
may be exercised by a private pros-
ecutor equallv with the crown. Reg.
V. M' CartielU Ir. C. L. K 207.
On a writ of error upon an in-
dictment for murder, the record
stated, that in fonning the jury,
after challenges by the crown with-
out cause assigned, and by the pris-
oner, nine only of thos^ called were
elected to be sworn. Twelve of the
jurors returned upon the panel were
during that time deliberating upon
their verdict in another case. There-
upon the name of L, who had been
before ordered to stand by upon a
challenge by the crown without
cause being assigned, was again
called, and being again challenged
by tlie crown, the coimsel for the
prisoner prayed that the crown
might be put to assign cause. Be-
fore any judgment was given by the
court the twelve jurors who sat as
the jury in the other case came into
court and gave their verdict. There-
upon the counsel for the crown
prayed that I. should be ordered to
stand by until those twelve should
be called. The counsel for the pris-
oner objected that I. should be
sworn, unless good cause of chal-
lenge was assigned by the crown.
The court adjudged that I. should
stand by, and that the names of the
jurors who so came into court
should then be called instead of the
name of P., who stood next after L
Tlie three required to complete the
panel were taken from those jurors :
— ^Held, that, it being conceded that
the 33 Edw. 1, st. 4, and 6 Geo. 4,
c. 50, s. 29, did not take away the
power of the crown to challenge
without assigning cause till the
panel had been gone through or
perused; the panel had not been
gone through or perused, so as to
require the crown to assign cause of
challenge, when the twelve jurors
came into court, nor until their
names had been called, and there-
upon the judge was right in order-
ing L to stand by the second time.
Jmmsell v. JReg. (in error), 8 El. <fe
Bl. 54 ; Dears. & B. C. C. 375 ; 27
L. J., M. C. 4 — Exch. Cham.
The record stated that P., named
on the panel, was called, and elect-
ed, and tried, to the intent that he
should be sworn; without being
sworn, he said that he had consci-
entious scruples against capital pun-
ishments. The counsel for the
cro^vn prayed that he should be or-
dered to stand by. The counsel for
the prisoner prayed that the crown
should assign cause of challenge. The
judge told him that if he felt that
he could not do his duty he had bet-
ter withdraw ; and thereupon it was
ordered bv the court that he should
stand by : — Held, that this was a
challenge by the crown without as-
signing cause, and therefore the
judge was right in ordering P. to
stand by. lb.
Held, that the statement that the
court ordered jurymen to stand by
was unobjectionable, as it meant,
that, being challenged by the crown,
tliey were to stand aside until the
proper time for deciding upon the
challenge arrived. Ih.
The names of the jurors who had
served in the other case, standing in
different parts of the panel, were
called over consecutively before any
one who had been already called
once were called again ; — Held,
that this was a proper course ; that
there was no fixed rule of practice
as to the order in which the names
of the jurors on the panel should be
526
OF JURIES AND CHALLENGES.
called ; and that if the usual course
was departed from it was not ground
of error. lb.
The fact that a juror is over sixty
yeai"s of age is not a ground of
challenge. Mtdcahy v. Reg, (in er-
ror), 3 H. L. Cas. 306; and 1 Ir.R,
C. L. 13.
Challenge to the array is only
where the sheriff has been guilty of
wilful default, and the summoning
of the jury is a duty purely minis-
terial. Reg. V. Biirie, 10 Cox, C.
C. 519.
On Trials at Nisi Prius,'] — ^Where
the sheriff's officer had neglected to
summon one of the s|)ecial jurymen
returned on the panel : — Held, that
this was no ground of challenge to
the array for unindifferency on the
part of the sheriff. Rex v. Edmonds^
4 B. & A. 471.
On the trial at Nisi Prius of an
indictment for libel, on which only
three special jurors apj^jared, the
counsel for the prosecution prayed a
tales, and the defendant challenged
the array of the tales, on the
ground that the sheriff was a sub-
scriber to a society who were the
prosecutors ; and on issue taken on
this challenge, two triers were ap
pointed by the court, who found m
favour of the challenge, and the
cause was made a remanet. Rex v.
Dolby, 1 C. & K. 238— Abbott.
The court will not compel the
prosecutors to give a list of their
names to the defendant previously
to striking a special jury, but Avill
give such directions, by consent of
the prosecutors, as shall prevent
prejudice accruing to the defendant
in consequence oi such list not be-
ing furnished. Reg, v. Nicholson^ 8
D. P. C. 422 ; 4 Jur. 558.
3We*men.]— Where, on an indict-
ment for the publication of a libel,
(appointed to be tried by a special
jury), a tales panel was quashed for
unindifferency in the sheriff: — ^Held,
that a writ of venire facias juratores
might be awarded to the coroner of
the county, although two of the
special jurors summoned attended
on a former occasion ; and upon a
prayer for an award of a tales de
circumstantibus at nisi prius, it is
not compulsory on the coroner or
sheriff to select the talesmen from
among the bystanders accideotally
in court ; but they may be chosen
from among persons previously ap-
pointed by the coroner or sheriff to
be in attendance, in expectation that
a tales would be necessary. Rex v.
Dolby, 3 D. & R. 311 ; 2 B. & C.
104.
On the trial of an information
for a libel, only ten special jurymen
appeared, and two talesmen were
accordingly sworn to fill up the
jury : — Held, to be no ground for a
new trial tliat two of the non-at-
tending speoial jurymen named in
the panel had not been summoned
to attend, although it appeared that
this fact was unknown to the de-
fendant until after the trial was
over. Rex v. HutU, 4 B. 4fe A 430.
Since 7 & 8 Will. 3, c. 32, tales-
men can only be taken from the
panel of tlie jury summoned to try
the other causes, and not from the
bystanders. Rex v. IKU, 1 C. & P.
667 — Garrow.
On the trial of a quo warranto,
which has been made a special jury
cause, jurors who have been sum-
moned to try prisoners on the crown
side of the assize are not thereby
qualified to act as talesmen. Rex
V. Tipping, 1 C. <fe P. 668— Gumey.
The warrant for a tales on a trial
in a county palatine must come
from the king's attorney-general
Rex V. Lambe, 4 Burr. 2171.
Semble, that, in an information at
the suit of the attorney-general, a
tales may be pi'ayed for the crown
without his warrant, though he is
not present ; but not for the defend-
ant. Att.' Gen, v. Parsons, 2 3L Jk
W. 23 ; 2 Gale, 227.
DISCHARGE OF.
527
4. View,
Where, on the trial of a rape, it
was wished on the part of the pris-
oner that the jury should see the
place at which the offence was said
to have been committed, and the
place was so near to the court that
the jury could have a view without
inconvenience, the judge allowed a
view, although the prosecutor did
not consent to it. lieff. v. Whcd-
fcy, 2 C. & K. 376— Gaselee, Serjt.
The court will only under pecu-
liar circumstances grant a view in
an iudictment for perjury ; but a
view will be refused if there is any
risk of its misleading the jury. Arum.,
2 Chit. 422.
An inspection by the jury of the
locus in quo may be directed by the
court in a criminal case. Heg, v.
WhaUey, 2 Cox, C. C. 231— Maule.
5. Locking up.
If after a jury is locked up to
consider their verdict in a capital
case one of them is ill, the judge
will allow a medical man to see
him, and anything which the med-
ical man in his discretion will give
him bona fide as medicine he may
have, but not sustenance. i?6^. v.
Newton, 3 C. & K. 85 ; 13 Q. B.
716 ; 13 Jur. 606 ; 18 L. J., M. C.
201 ; 3 Cox, C. C. 489.
Afler a trial for murder had com-
menced, it was ascertained that a
witness had not arrived, but was
expected by a train. The judge
ordered the jury to be locked up
until the arrival of the witness, had
another jury called, and proceeded
with another cause. Reg, v. Fos-
ter, 3 Q.& K. 201— Maule.
6. Discharge of.
After the jury has retired to con-
aider their verdict in a criminal case,
whether felony or misdemeanor, and
has remained in deliberation a full
and sufficient time without bein^
able to agree upon a verdict, it is
in the discretion of the judge to dis-
charge them if there is no reason-
able prospect of their agreeing upon
a verdict. Winsor v. Meg. (in er-
ror), 6 B. & S. 143 ; 1 L. R., Q. B.
289 ; 12 Jur., N. S. 91 ; 35 L. J., M.
C. 121 ; 14 W. R. 423 ; 14 L. T.,N.
S. 195. Affirmed on appeal, 1 L.
R., Q. B. 390 ; 12 Jur., N. S. 561 ;
35 L. J., M. C. 161 ; 14 W. R. 695;
14 L. T., N. S. 567— Exch. Cham.
The exercise of such discretion by
a judge cannot be reviewed by a
court of error. lb.
The maxim, that a man cannot
be put in peril twice for the same
offence, means that a man cannot
be tried again for an offence upon
which a verdict of acquittal or con-
viction has been given, and not that
a man cannot be tried again for the
same offence where the first trial
has proved abortive, and no verdict
was given. lb.
Where a man was indicted, plead-
ed not guilty, and was given in
charge to the jury, who retired to
deliberate, and had not agreed upon
a verdict by the time all the rest of
the business before the court was
finished, when they were discharged
by the judge and the prisoner re-
manded : — Held, that the dismissal
of the jury was equivalent to an ac-
quittal, and that he might lawfully
be put upon his trial the second
time. JReq. v. Davison, 2 F. & F.
250; 8 Cox, C. C. 360— Pollock,
jMartin and Hill.
A jury may be discharged by
consent, after having been charged.
JReg, V. Deane, 5 Cox, C. C. 501.
Where, in case of misdemeanor,
the jury is improperly and against
the will of the defendant, discharg-
ed by the judge from giving a ver-
dict after the trial has begun, this is
not equivalent to an acquittal, nor
does it entitle the defendant quod
eat sine die. JReg, v. Charlesworth,
1 B. <fc S. 460 ; 9 Cox, C. C. 44 ; 8
Jur., N. S. 1091 ; 31 L. J., M. C.
25 ; 9 W. R. 842 ; 5 L. T., N. S.
150; S. Cat Nisi Prius, 2 F.& F.
326.
528
OF JURIES AND CHALLENGES.
Jn the course of the trial and dur-
ing the examination of witnesses one
of the jurors had, without leave,
and without it being noticed by
any one, left the jury-box and also
the court Iiouse, whereupon the
court discharged the jury without
giving a verdict, and a fresh jury
was empanneled. The prisoner was
afterwards tried and convicted be-
fore a fresh jury : — Held, that the
course pursued was right. Heg, v.
Ward, 17 L. T., N. S. 220 ; 10 Cox,
C. C. 573 ; 16 W. R. 281— C. C. R.
In a case of felony, capital or
otherwise, the judge has a discre-
tionary power, in case of evident
necessity, to discharge the jury
without giving a verdict, and such
discharge is no bar to a fresh trial
of the accused on the same indict-
ment. Wtnsor V. Heff. (in error),
7 B. & S. 490— Exch. Cham.
The discretion of the judge in ex-
ercising this power cannot be re-
viewed by any legal tribunal. lb.
7, Jury Process,
(15 4- 16 Vict. c. 76, ss. 104, 105.)
The jury process in an indictment
for a conspiracy made returnable on
one of the three days before full
term ; and on the same day a con-
tinuance by a new venire was
awarded, is not erroneous; inas-
much as the return day was con-
formable to 1 Will. 4, c. 3, s. 2,
and the court, though not sitting
for the dispatch of business before
full term, might award the continu-
ances on the return days. Wright
V. Reg. (in error), 14 Q. B. 148;
14 Jur. 305— Exch. Cham.
Held, also, that, even if there had
been a discontinuance in the jury
process, the defendant waived the
objection by afterwards pleading
guilty to the indictment. Ih.
Two defendants being iudicted
for conspiracy, one of them cannot,
on a wnt of error, object to a dis-
continuance in the process against
the other. Ih.
An indictment at quarter sessions
contained two counts: one charg-
ing a stealing of monies above the
value of 5/. in a dwelling-house;
the other charging simply a steal-
ing of monies of uie same descrip-
tion as those contained in the first
The jury process directed the jury
to be summoned to inquire if tfcMe
prisoners were guilty of the felony
m the indictment specified ; and thie
verdict found them guilty of the
felony aforesaid. Upon that ver-
dict they were adjudged to be trans-
ported for fourteen years. Thejud^.
ment was reversed in the Queen's
Bench, with a direction that a ven-
ire de novo should be awarded by
the sessions : — ^Held, first, Uiat the
jury process had been misawarded
in the first inistance, and therefore a
venire de novo had been properly
awarded by the Queen's Bench;
and that it was no objection that
judgment had been given upon the
prisoners by the sessions. CampM
V. Reg. (in error), 11 Q, B. 799 ; 12
Jur. 117 ; 17 L. J., M. C. 89— Exch.
Cham.
Held, secondly, that the direction
to award a venire de novo was
void, inasmuch as the sessions, be-
ing a court of oyer and terminer, is
not an inferior court, and is a con-
tinuing court of oyer and terminer.
Ih.
The record in an indictment set
out an award of the venire to the
sheriff, which required him to re-
turn " good and lawful men of the
county/' and stated that the sher-
iff returned the persons following
(naming them), but the return did
not state that the persons named
were " good and lawful men of the
county": — Held, that the jmtjrs
must be taken to have been good
and lawful men of the county.
ManseU v. Reg. (in error), 8 EL A
Bl. 54 ; Dears. & B. C. C. 875 ; 27
L. J., M. C. 4.
The 16 & 17 Vict, c 113 (Ir.), &
109, which prescribes the summon-
ing of jurors to try civil as weil
COUNSEL— APPEARANCE BY.
529
as crimiiial issues, according to the
precept of the judge of assize, does
not interfere with 3ie common law
authority of justices of gaol delivery
to order a jury to be returned in-
stanter, when, from the panel hav-
ing been quashed, 0)* for any other
reason, a sufficient jury cannot oth-
erwise be had. (rNeiU v. Reg,^ 6
Cox, C. C. 495 ; 4 Ir. C. L. R. 221.
XLV. CoiTNSKL.
1. Appearance and Defence by, 529.
2. Aadressinq the Jury, 530.
3. Right of lEteply, 532.
4. Sitmming up Evidence, 533.
1. Appearance and Defence hy.
By 6 & 7 Will. 4, c. 114, s. 1,
" persons tried for felonies, after the
" close of the case for the prosecu-
^^tion, may make full answer and
" defence thereto by counsel."
By s. 2, " in all cases of summary
" convictions, persons accused shall
" be admitted to make their full an-
" swer and defence, and to have all
"witnesses examined and cross-ex-
" amined by counsel."
Several defendants charged in an
mdictment with different illegal acts
severed in their defence, and being
convicted and sentenced to different
punishments, brought separate writs
of error ; — ^Held, that they were en-
titled to appear by separate counsel,
and that such counsel were several-
ly entitled to reply. G* ConneU v.
keg. (in error), 11 C. & F. 155 ; 9
Jur. 25.
On a trial for murder, the pris-
oner objecting to be defended by
counsel, but, m the result, allowing
counsel to act for him, he was not
afterwards allowed to raise any ob-
jection to the proceeding, and a fiat
for a writ of error was refused.
Reg, V. Sautheg, 4 F. & F. 864—
Mellor.
Where a party ^^ pleaded guilty
at the Central Criminal Court to an
Fish, Dig.— 40.
indictment for libel, and affidavits
were filed both in mitigation and
aggravation, the judges refused to
hear counsel on either side, but
formed their judgment of the case
by reading the affidavits. JReg, v.
Gregory, 1 C. «fc K. 228.
Queen* s Counsel,'] — On the trial
of a criminal information a Queen's
counsel ought not to be counsel
for the defendant vnthout a licence
from the Queen, or at least a letter
from the secretary of state ; and it is
not enough that an application for a
licence has been sent to the secretary
of state from an assize town in the
country, to which no answer has
been received at the time of the
cause being tried. Reg, v. Bartlett,
2 C. A K. 821— Wilde, C. J.
Where a Queen's counsel was in-
structed to argue a criminal case
for a defendant, on a point reserv-
ed, but at the time fixed for the ar-
gument, had not obtained a licence
from her Majesty to argue against
the crown, but only a certificate
from the secretary of state's office,
the court directed the argument to
stand over for such license to be
obtained. Reg, v. Jones^ 9 C. & P.
401 ; 2 M. C. C. 171.
Assignment hy the Court.'] — The
court may properly request counsel
to give his honorary services to a
prisoner. Aliter with an attorney.
But the court will recommend that,
in such cases, the crown should pay
the fees both of counsel and attor-
ney, as assigned. Reg, v. Fogarty,
5 Cox, C. C. 161.
On a trial for murder, the court
refused to allow counsel to appear
for a prisoner without his express-
ed assent. Reg, v. Tscuado, 6 Cox,
C. C. 386— Erie.
The fiction of law in criminal
cases is, that the judge is counsel
for the prisoner. It is a violation
of this principle, and indecent, to
constitute the judge counsel for the
prosecution, and leave him to make
530
COUNSEL.
out from the depositions a case
against the prisoner. Therefore, all
prosecutions ought to be conducted
by counsel, and the court will in all
cases direct the depositions to be
handed to counsel for that pApose.
Reg, V. Page, 2 Cox, C. C. 221—
Maule.
Order of Defending several Pris-
oners.]— Where the counsel for sev-
eral prisoners cannot agree as to
the order in which they are to ad-
dress the jury, the court will call
upon them, not in the order of their
seniority, but in the order in which
the names of the prisoners stand in
the indictment. But where the
counsel for one prisoner has wit-
nesses to fact to examine, the coun-
sel for another cannot be allowed
ito postpone his address to the jury
.uptil those witnesses have been ex-
amined. Peg. V. Barber^ 1 C. &
K. 434 — Gumey, Williams and
Maule.
Where two prisoners are jointly
indicted, and the second in the in-
dictment only is defended by coun-
sel, the latter will be permitted to
address the jury before the other
makes his statement, notwithstand-
ing the rule established in Peg. v.
Richards, 1 Cox, C. C. 62. Meg.
V. HazeU, 2 Cox, C. C. 220— Wil-
liams.
Where one prisoner was indicted
for stealing and the other lor receiv-
ing, and the receiver was defended
by counsel, but the principal felon
was undefended, the court called
upon the principal to make his
statement to the jury before the
counsel for the receiver was permit-
ted to address them. Peg. v. Mar-
tin, 3 Cox, C. C. 56 — Coleridge.
When several prisoners are de-
fended by different counsel, the or-
der of their defences is not to be de-
termined by the seniority of their
counsel at the bar, but on the pre-
cise offence charged against each ;
and in a well-drawn indictment,
the order in which the prisoners
should be called on for their de-
fence usually coincides with the or-
der of their names in the indictr
ment. Peg. v. Meadows, 2 Jur., N.
S. 718— Erie.
Where several persons are mdict-
ed for the same offence, the order in
which they should be called on to
make their defence is not determm-
ed by the order in which their
names stand in the indictment
Peg. V. ffolman, 3 Jur., N. S. 722
—Pollock.
Where two were indicted for the
same offence, with a second count
charging one of them as accessoiy
after the fact, the one named first
in the indictment, though he had
no counsel, was heard in his de-
fence before the other, who«was de-
fended by counsel. Peg. v. 77iom-
as, 3 Jur., K. S. 272— Channell.
Where two were indicted, one
for larceny and the other as a re-
ceiver of the stolen property, the
latter of whom is defended by coun-
sel, and the former not, the counsel
for the receiver should make his de-
fence first. Peg. v. BeUon, 5 Jur.,
N. S. 276— Martin.
2. Addressing the Jury.
In opening the case for the pros-
ecution in felony, counsel ought to
state declarations proposed to he
proved, as well as &cts. Rex v.
OrreU, 1 M. A Rob. 467; 5. P.,
Pex V. Davis, 7 C. & P. 785; Ret
V. HaHel, 7 C. & P. 778— Parke.
Unless the declarations amount to
a confession, and then they should
not be opened. Pex v. Davis^ 7 C.
& P. 785 ; & P., -»«! V. JSTorte/, 7 C.
A P. 773— Parke.
Where there is counsel for the pris-
oner, the counsel for the prosecution
ought always to open the case ; hat
he should not open if the prisoner
has no counsel, unless there is some
peculiarity in the fects of the esse
to require it. Pex v. Gasmgne, 7
C. & P. 772— Parke.
The counsel for the prosecutian,
in opening a case of murder, has a
ADDRESSING THE JXJRY.
531
Tight to put h3rpotbetically the case
of an attack upon the character of
any particular witness for the crown,
and to state that, if such attack
should be made, he should be pre-
pared to rebut it; he has also a
right to read to the jury the gen-
eral observations of a judge, made
in a case tried some years before,
on the nature and effect of circum-
stantial evidence, if he adopts them
as his own opinions, and makes
them part of his own address to the
jury. Req, v. Courvoigier^ 9 C. <fe
Y 362— Tindal and Parke,
If additional evidence is discover-
ed during the progress of a case, the
counsel tor the prosecution is not at
liberty to open the nature of such
evidenae in an additional address to
the jury. lb.
A prisoner's counsel, in address-
ing the jury, will not be allowed to
state anything which he is not in a
situation to prove, or which is not
already in proof; nor will he be al-
lowed to state the prisoner's story.
Reg, V. Beard, 8 C. ifc P. 142 ; S.
P., Reg. V. Butcher, 2 M. & Rob.
228— Coleridge.
Counsel for the prosecution open-
ing a case against one prisoner, state-
ments made by that prisoner are not
to be used except in a regular way
of evidence. Reg. v. ffardiier, 9
Cox, C. C. 332— Pollock.
Two were indicted for manslaugh-
ter, the counsel for one of them
having addres.%d the jury on his be-
half, the counsel for the second pri»-
oner did the same, and called wit-
nesses, whose evidence tended to
shew negligence on the part of the
first: — Held, that the coimsel for
the prisoner had a right to cross-ex-
amine the witnesses tor the second,
and then to address the jury again,
confining himself to comments on
the testimony the second prisoner
had adduced. Reg. v. Woods, 6 Cox,
C. C. 224.
If the prisoner's counsel has ad-
dressed the jury, the prisoner him-
self will not be allowed to address
the jury also. Reg. v. Boucher, 8
C. & P. 141— Coleridge. S. P.,
Reg. V. Burrows, 2 M. <& Rob. 124
— ^Bosanquet.
But on the trial of a case of shoot-
ing, with intent to do grievous bod-
ily harm, there having been no per-
son pi'esent at the time of the of-
fence but the prosecutor and prison-
er, the latter was, under these spec-
ial circumstances, allowed to make
a statement before his counsel ad-
dressed the jury. Reg. v. Maltngs,
8 C. & P. 242— Alderson.
But the privilege is not to be con-
sidered as a precedent with respect
to the general practice in such cases.
Reg. V. Walking, 8 C. & P. 243—
Gumey.
A prisoner charged with felony,
who IS defended by counsel, ought
not to be allowed to make a state-
ment in addition to the defence of
counsel, unless under very particu-
lar circumstances ; and the general
rule ought to be, that a prisoner de-
fended by counsel should be entirely
in the hands of his counsel ; and that
rule should not be infringed on, ex-
cept in very special cases. Reg. v.
Rider, 8 C. & P. 539— Patteson.
. It is the duty of the counsel for
the prosecution to be assistant to the
court in the furtherance of justice,
and not act as coimsel for any par-
ticular person or party. Reg. v.
Thursfield, 8 C. & P. 269— Gurney.
Wliere no counsel is engaged for
the prosecution, and the depositions
are handed in by direction of the
court, to a gentleman at the bar, he
should consider himself as counsel
for the crown, and act in all respects
as he would if he had been instruct-
ed by the prosecutor ; and should
not consider himself merely as act-
ing in assistance of the judge, by
examining the witnesses. Reg. v.
Littleton, 9 C. & P. 671— Parke.
A prosecutor conducting his case
in person, and who is to be examin-
ed as a witness in support of the in-
582
COUNSEL.
dictnient, has no right to address
the jury as counsel. JRex v. Brice,
2B. & A..606; 1 Chit. 352.
But on the trial of an indictment
for perjury, the judge will allow the
defendant to address the jury and
cross-examine the witnesses, and his
counsel to argue points of law, and
suggest questions to him for the
cross-examination of the witnesses.
Hex V. Jerkins, 1 C. A P. 548 ; R.
& M. 166— Abbott.
Where, on an information for a
misdemeanor, the defendant con-
ducts his own defence, counsel may
be heard on any point of law which
arises. Hex v. White, 3 Camp. 98
— ^EUenborough .
But he cannot have the assistance
of counsel in examining and cross-
examining witnesses, and reserve to
himself the right of addressing the
jury. lb.
Not more than two counsel are
entitled to address the court for a
prisoner during the trial upon a point
of law. Heg. v. Bernard, 1 F. A F.
240.
A foreigner, indicted for felony,
being unable to speak English, the
proceedings were explained to him
by an interpreter. He was defend-
ed by counsel, who cross-examined
the witnesses for the prosecution ; at
the close of which the judge, through
the interpreter, acquainted the pns-
oner that he might choose whether
he would make ms defence himself
or allow his counsel to make it for
him, but that both could not be
heard. Beg. v. Teste, 4 Jur., N.
S. 244— WiUiams.
8. Bight of Beply.
In General Cases.'] — Where coun-
sel for the prosecution, intending to
put in evidence in reply, begins his
reply to the jury before doing so
per incuriam, he ought not, there-
fore, to be debarred from the right
to put in his evidence in the usual
course. Beg. v. White, 2 Cox, C.
C. 192.
Two being indicted for night
poaching, the defence being on the
question of identity, one of tiiem
calling witnesses to prove an alibi,
the other calling no witnesses, the
counsel for the prosecution was al-
lowed a general reply on the whole
case as against both. Reg. v. Briggt,
1 F. A P. 106— WilUama
Where there are several prisoners,
and they sever in their defences, if
one should call witnesses and die
others not, the right of reply h in
practice confined to the case against
the prisoner who has called witness-
es. Beg. V. Burton, 2 F. A F. 788
The counsel for the crown, where
the crown is the defendant in a
writ of error, is not neoesaarily en-
titled to the final reply, thoogh the
crown is the real litigant p^i^*
O^Connell v. Beg. (in error), 11 G.
A F. 155 ; 9 Jur. 25.
Three were indicted for murder,
and witnesses were called for the
defence of one only: — ^Held, that
the counsel for the prosecution was
entitled to reply generally, aiid was
not to be limited in his reply as
against the prisoner for whom the
witnesses were called, although the
evidence adduced for the one did
not affect the case as it respected
the other two, but if the evidence
against two affect them with differ-
ent offences, such as larceny and
receiving, and one calls witneaes,
there is no right of reply against
both. Beg. v. Blaekbum, 3 C. A
K. 330 ; 6 Cox, C. C. 333— Talfonri
The prosecuting counsel ougbt
not to reply where witnesses are
called to character only. Pa(tetm*t
case, 2 Lewin, C. C. 262 — ^Patteson.
A prosecutor's counsel has, in
strictness, the right of reply, thoogb
the counsel for the prisoner only
calls witnesses to character. Hex
V. Stannard, 7 C. A P. 678— Patte-
son and Williams.
A. was charged with felonioasly
carnally knowing and abusing a
girl under ten. B. was chaiged
with being present, aiding and abet-
SUMMING UP EVIDENCE.
533
ting. A.'6 counsel called no wit-
nesses; B., who had no counsel,
called a witness to prove an alibi
for A. : — Held, that the evidence
was in effect evidence for A., and
that, in strictness, the counsel for
the prosecution had a right to reply
QQ &e whole case, but that it was
sommnm jus, and ought to be ex-
ercised with great forbearance. £eff.
Y.Jordan, 9 C. A P. 118— Wil-
Hams.
A statement of facts not intend-
ed to be proved gives a reply to the
counsel for the prosecution. Meg,
V. Butcher, 2 M. & Rob. 228— fol-
eridge.
It is entirely at the discretion of
the prosecutor's counsel, whether he
will exercise his right of reply or
not. Rex v. Whiting, 7 C. & P.
771— BoUand.
Btfthe Attorney or SoUcitor- Gener-
al,']— The attorney-general may re-
ply with new matter in collateral
issues, though no evidence is given
for the prisoner. Bex v. JRadcliffe,
1 W. Bl. 3.
Where the attomey-general or a
king's counsel states that he ap-
pears officially to conduct a prose-
cution on an indictment for misde-
meanor, he is entitled to reply,
though the defendant calls no wit-
ness. Rex V. Mar$den, M. & M.
489— Tenterden.
Martin, B., intimated that he
thought the right of reply on behalf
of the crown a bad practice, and
that he should confine the right to
the attorney-general of England in
person. Reg, v. Christie, 1 F. & F.
75.
The right of reply, where no evi-
dence is called for the defence on
behalf of the crown, in Mint cases
was not admitted. lieg, v. Taylor,
1 F. & F. 536— Byles.
In a prosecution by the post-of-
fice for a felony, it being stated by
the counsel for the prosecution that
he appeared as representative of the
attorney-general. On the ground
of his representing the attorney-gen-
eral, he was entitled to reply with-
out reference to the prisoner's hav-
ing called witnesses or not. Reg,
V. Gardner, 1 C. ifc K. 628— Pol-
lock.
In conducting prosecutions for
the post-office, where the solicitor-
general appears on behalf of the at-
torney-general, he has, on the part
of the crown, the right to reply on
the whole case, although the pnson-
er calls no witnesses. Reg. v. Toak^
ley, 10 Cox, C. C. 406— Mellor ; S.
P,, Reg, V. Barrow, 10 Cox, C. C.
407 — Gumey, Recorder.
The attorney-general for the coun-
ty palatine, though prosecuting in
person, has no right to reply. Meg,
V. Christie, 7 Cox, C. C. 606.
In a prosecution directed by the
poor law board, counsel for the
crown cannot claim the right to re-
ply where the prisoner calls no wit-
nesses. Reg, V. Beckwith, 7 Cox,
C. C. 505— Byles.
4. Summing up Evidence,
By 28 & 29 Vict. c. 18, s. 2, " if
any prisoner or prisoners, defend-
ant or defendants, shall be defend-
ed by counsel (and by s. 9, the
word counsel includes attorneys
where attorneys are allowed by
law, or by the practice of any
court, to appear as advocates),
but not otherwise, it shall be the
duty of the presiding judge, at
the close of the case for the prose-
cution, to ask the counsel for each
prisoner or defendant so defended
by counsel whether he or they in-
tend to adduce evidence ; and in
the event of none of them there-
upon announcing his intention to
adduce evidence, the counsel for
the prosecution shall be allowed
to address the lury a second time
in support of his case, for the pur-
pose of summing up the evidence
against such prisoner or prisoners,
or defendant or defendants ;
" And upon every trial for felony
or misdemeanor, whether the pria-
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534
EVIDENCE.
" oners or defendants, or any of
" them, shall be defended by coun-
" sel or not, each and every such
" prisoner or defendant, or his or
" their counsel respectively, shall
" be allowed, if he or they shall
" think fit, to open his or their case
" or cases respectively ;
" And after the conclusion of
" such oj)ening, or of all such open-
" ings, if more than one, such pris-
" oner or prisoners, or defendant or
" defendants, or their counsel, shall
" be entitled to examine such wit-
'' nesses as he or they may think
" fit, and when all the evidence is
" concluded, to sum up the evidence
" respectively ; and the right of re-
" ply, and practice and course of
" proceedings, save as hereby alter-
" ed, shall be as at present."
The counsel for the prosecution
ought not, in summing up the evi-
dence, to make observations on the
prisoner's not calling witnesses, un-
less at all events it has appeared
that he might be fairly expected to ,
be in a position to do so. Neither
ought counsel to press it upon the
jury, that, if they acquit the prison-
er, they may be considered to convict
the prosecutor or prosecutrix of
perjury. Meg. v. JPuddick, 4 F. <&
F. 497 — Crompton.
Witnesses merely called as to
character do not give the counsel
for the prosecution a reply. Heg,
v. Dowse, 4 F. <fc F. 492— Pigott.
It being a general principle of
criminal procedure, that counsel
for the prosecution should consider
themselves not merely as advocates
for a party, but as ministers of jus-
tice, and not as struggling for a ver-
dict, but as assivstants in the ascer-
tainment of truth according to law.
Beg. V. Berens, 4 F. & F. 842—
Blackburn.
Therefore, counsel for the prose-
cution ought not to exercise their
right of summing up the evidence
wnere the prisoner calls no witness-
es, imless counsel really, in their
discretion, deem it to be necessary
for the purposes of justice. lb. : S,
P., Beg. V. Webb, 4 F. & F. 862—
Mellor.
A. & B. were indicted for man-
slaughter ; the counsel of A. called
a witness, who gave evidence whidi
brought home the crime to B.,
whereupon his counsel was allowed
to examine the witness and address
the jury after A.'s counsel had clos-
ed his case and had summed up his
evidence ; the counsel for the prose-
cution being entitled to a general
reply. Beg. v. Copley, 4 F. <fc F.
1097— Smith.
It being a general principle of
criminal procedure, that counsel for
the prosecution should con^dder
themselves not merely as advocates
for a party, but as ministers of jns-
tice, and not as struggling for a Ter-
dict, but as assistants in the ascer-
tainment of truth accordmg to law ;
therefore, counsel for the prosecu-
tion ought not to exercise their right
of summing up the evidence where
the prisoner calls no witnesses, un-
less counsel really, in their discre-
tion, deem it to be nece^ary for the
purposes of justice. Beg. v Berens,
4 F. <fc F. 842— Blackburn. ,
Under 28 & 29 Vict. c. 18, s. 2,
the counsel for the prosecution
ought not, when the pnsoner calls
no witnesses, to sum up the evidence.
Beg. V. Webb, 4 F. & F. 862— Mel-
lor.
XLVL Evidence.
1. Oonjesnoru cmd Admissions, 535.
2. Depositions, 550.
(a) Mode of taking, 550.
(b) Returning, 555.
fc) Illness, Death, Insanity tr
Absence of Witnesses, 557.
(d) ExamincUiou on, 559.
(e) Copies, 561.
3. Presumptions or Probabilites fif
Guilt, 562.
4. Accomplices, 563.
5. Government Spies, 564.
6. Competency of Witnesses, 565.
7. CompcUing Attendance, 568.
8. Swearing, 568.
9. Ordering to leave Court, 570.
M
CONFESSIONS AND ADMISSIONS.
535
10. Nameaon Back of Indictmmtf 570.
11. DeclanUions in Artiado MortiM,
571.
12. Examining and Cross-examining
Witnesses, 571.
13. Declining to answer, 572.
14. Evidence of Character, 573.
15. Evidenceof Identity, $74.
' 16. Privileged Commumcations, 574.
17. Evidence (pother simiiar Offences,
18. Previous Conviction, 576. [576.
19. Maps or Plans, 578.
20. Letters, 578.
21. Proof of Handwriting, 579.
22. Proo^ of Documents by attesting
Witnesses, 579.
23. Notice to produce, 579.
24. Production and Inspection of Doc-
uments, 580.
25. On other Points, 580.
1. Confessions and Admissions,
Free and Voluntary.'] — ^A prison-
er's confession is sufficient ground
for a conviction, although there is
no other proof of his having com-
mitted the offence, or of the offence
having been committed, if that con-
fession was in consequence of a
charge against the prisoner. Hex v.
Eldridge, R. & R. C. C. 440.
A confession obtained without
threat or promise from a boy four-
teen years old, by questions put by
a police officer in wiiose custody the
boy was on a charge of felony, and
when he had no food for nearly a
whole day, is rightly received. liex
V. Thornton, 1 M. C. C. 27.
A voluntary confession of felony
made by a prisoner on his examina-
tion before a magistrate, and re-
duced by the magistrate into writ-
ing, may be given in evidence on
the trial, though the magistrate has
neglected, and the prisoner has re-
fused, to sign it. ICex v. Lambe, 2
Leach, C. C. 552.
The confession of a prisoner be-
fore a magistrate is a sufficient
ground to warrant a conviction, al-
though there is no positive proof al-
iunde that the offence was commit-
ted. Bex V. White, R. & R. C. C.
508 ; S. P., Rex v. Tippet, R. & R.
C. C. 509.
Where a knowledge of any fact
is obtained by means of a confes-
sion which cannot be received, the
party should be acquitted; unless
the fact would be sufficient to war-
rant a conviction without any con-
fession leading to it. Hex v. Har-
vey, 2 East, P. C. 658— Eld<Mi.
If a confession is improperly ob-
tained, it is a around for excluding
evidence of the confession, and of
any act done by the prisoner in con-
sequence towards discovering the
property, unless the property is act-
ually discovered thereby. i?c{B v.
Jenkns, R. & R. C. C. 492.
The confession of a girl fifteen
years old, occasioned by many ap-
plications by the prosecutor's rela-
tions and neighbors, amounting to
threats and promises, is not receiv-
able. Rex V. Simpson, 1 M. C. C.
410.
So a confession obtained from a
servant through hopes and threats
held out by the wife of the master
and prosecutor, is inadmissible. Rex
V. XTpchurch, 1 M. C. C. 465.
A second confession made under
the same influence as the first is not
receivable. MeyneWs case, 2 Lew-
in, C. C. 122 — Taunton; 8. P.,
Sherrington's case, lb, 123 — Patte-
8on.
A prisoner charged with murder,
being a few days short of fourteen,
was told by a man who was pres-
ent when he was taken up, but not
by a constable, "Now kneel you
down, I am going to ask you a
vei^ serious question, and I hope
you will tell me the truth, in the
presence of the Almighty" ; the
prisoner, in consequence, made cer-
tain statements : — Held, strictly ad-
missible. Rex V. WHd, 1 M. C. C.
452.
A statement of a prisoner is ad-
missible, although he was previ-
ously told that whatever he said
" would be used a^inst him."
Reg, V. Chambers, 8 Cox, C. C. 92
— Rolfe.
A volxmtary confession which en-
ters into minute details of a crime,
and states that Hie prisoner was
536
EVIDENCK
one of the party concerned in its
commission, is evidence to go to a
jury when the corpus delicti is
proved by evidence aliunde, al-
though the witness proving such
corpus delicti swears that the pris-
oner was not of the party engaged
in the commission of the crime.
Reg, V. Sutdiffe, 4 Cox, C. C. 270.
The prosecutor and a policeman
went into a room in the house of
one of the prisoners, in which were
assembled the two prisoners and
W. The policeman then charged
one of the prisoners and W. with
stealing the prosecutor's hops, and
the other prisoner with feloniously
receiving them. W. then said,
" Well, John, you had better tell
Mr. Walker" (the prosecutor) " the
truth." Neither the prosecutor nor
the policeman dissented from or re-
marked upon this advice, but the
prisoner John thereupon made a
statement amounting to a confes-
sion; and subsequently, whilst be-
ing conveyed to prison, of his own
accord, made a further statement :
— ^Held, that the statements were
admissible. Reg, v. Parker^ L. &
C. 42 ; 8 Cox, C. C. 465 ; 7 Jur.,
N. S. 586 ; 30 L. J., M. C. 144 ; 9
W. R. 699 ; 4 L. T., N. S. 451.
A prisoner charged with felony,
being in custody, handcuffed, in the
house of the prosecutor, after a con-
versation with the prosecutor and
another person, in which he was
told that they would do all they
could for him, said — " If the hand-
cufis are taken off, I will tell you
where I put the property ": — Sem-
ble, that this statement was receiv-
able, and could not be objected to,
either as a confession made under a
promise, or a statement obtained
by duress. Rex v. OreeUy 6 C. &
P. 655 — Bosanquet and Taunton.
A witness stated, that a prisoner
charged with felony asked him if
he had better confess ; and the wit-
ness replied, that he had better not
confess, but that the prisoner might
say what he had to say to him, for
it should go no further. The pris-
oner made a statement: — Held,
that it was receivable on the trial
Rex V. Thomas, 7 C. & P. 345-
Coleridge.
The prosecutor called the prison-
er to his room and said, " Jarn% I
think it is right I should tell you
that, besides being in the prej«nce
of my brother and myself, you are
in the presence of two officen of
the police, and I should advise you
that, to any question that may be
put to you, you will answer truth-
fully, so that if you have commit-
ted a &ult you may not add to it
by stating what is untrue." A let-
ter was men produced, whidi Jar-
vis said he had not written, and the
prosecutor then added, " Take care,
Jarvis ; we know more than you
think we know": — ^Held, that the
answer of the prisoner in the natuie
of a confession was admissible.
Reg. V. Jarvia, 17 L. T., K S. 178;
16 W. R. Ill : 1 L. R., C. C. 96;
37 L. J., M. C. 1 ; 10 Cox, C. C.
574.
The court will not exclude a
statement made in the prisoner's
presence by another party to a third
person, merely because some in-
ducement has been held out to that
party to make it; but very little
weight ought to be attached to the
&ct of no answer being given to
such statement by the prisoner, as
he would not know whether it
would be better for him to be
silent or not, Reg. v. Jcmkwaki^
10 Cox, C. C. 365— Smith.
A person being in custody, and
having been charged with setting
fire to some bobbms of cotton in a
mill, was shewn a piece of papo"
(partially burnt) with writing on
it, which had been found among
the burnt property. Without re-
ceiving any caution whatever, he
was then asked by the policeman
whose writing it was, and what he
had done with the remainder of it:
— ^Held, that what he said in ans-
wer to %he questions was reoeira-
CONFESSIONS AND ADMISSIONS.
537
ble, as the questions did not amount
to a threat, Reg, v. Regan^ 17 L.
T., N. S. 325— Shee.
A policeman asked a piisoner,
who was suspected of having made
away with her illegitimate child,
to tell him where it was. She re-
fused to do so, upon which he said
that if she did not tell she might
get herself into trouble, and it
would be the worse for her. Then
she made a statement : — Held, that
the statement was inadmissible.
Reg. V. Goley, 10 Cox, C. C. 536
— Mellor.
Under the Influence of Admo-
nitions.'] — Where a prisoner was
charged with stealing a guinea and
two promissory notes, and the prose-
cutor told him that it would be bet-
ter for him to confess : — Held, that
after this admonition, the prosecu-
tor might prove that the prisoner
brought him a guinea and a 5^.
note, which he gave up to the pros-
ecutor as the guinea and one of the
notes that had been stolen from
him. Rex v. Griffin^ R. & R. C.
C. 152.
Where, on the apprehension of a
prisoner for larceny, persons having
nothing to do with the apprehen-
sion, prosecution or examination of
the prisoner advised him to tell the
truth and consider his family : —
Held, that such admonition was no
ground for excluding a confession
made an hour afterwards to the
constable in prison. Rex v. Row^
R. ifc R. C. C. 153.
A. and his wife were separately
in custody on a charge of receiving
stolen property. A person who was
in the room with A. said — ** I hope
yott will tell because Mrs. G. (the
prosecutrix) can ill afford to lose
the money " ; and the constable
then said — " If you tell where the
property is, you shall see your
wife " : — Held, that a statement
made by A. afterwards was ad-
missible. Rex V. Uoyd^ 6 C. & P.
393— Patteson.
Fjsn. Dig.— 41.
If a prisoner is told, " You had
better split, and not suffer for all of
them " ; this is such an inducement
to confess as will exclude what the
prisoner said in consequence of it.
Rex V. ThomoB, 6 C. & P. 353—
Patteson.
So, where the witness said to the
prisoner, " It would have been bet-
ter if you had told at first." Rex
V. WalUey, 6 C. & P. 175 — Gur-
ney.
Under the Influence of Drink.]
— ^A statement, made by a prisoner
when he is drunk, is receivable in
evidence ; and semble, that if a
constable gave him liquor to make
him so, in the hope of his saying
something, that will not render his
statement inadmissible, but it will
be matter of observation for the
judfije in his summing up. Rex v.
SpUsbury, 7 C. ifc P. 187.
Under the Influence of Prom-
ises,']— Confessions, obtained in con-
sequence of promises or threats, can-
not be given in evidence ; but evi-
dence of facts resulting from such
inadmissible confessions may be re-
ceived. Rex V. WarwicksIutU^ 1
Leach, C. C. 263 ; 2 East, P. C.
658; S, P., Rex v. Mosey ^ 1 Leach,
C. C. 265, n.
A confession, induced by saying,
" Unless you give me a more satis-
factory account, I will take you be-
fore a magistrate," or by saying,
" Tell me where the things are, and
I will be favourable to you," can-
not be given in evidence. Rex v,
Thompson, 1 Leach, C. C. 291 ; S.
P., Rex V. Cass, 1 Leach, C. C.
293, n.
Where the prosecutor asked the
prisoner, on finding him, for the
money which the prisoner had tak-
en out of the prosecutor's pack,
but before the money was pro-
duced said, " he only wanted his
money, and if the prisoner gave
him that he might go to the devil
if he pleased"; upon which the
538
EVIDENCR
prisoner took 11«. 6^. out of his
pocket, and said, "it was all he
had left of it " : — Held, that the
confession could not be received.
Rex V. Jmts, R. & R. C. C. 152 ;
8. P., Rex V. Clarke^ Car. C. L.
59.
A prosecutor said to the prisoner
— ^"I should be obliged to you if
you would tell us what you know
about it ; if you will not, we, of
course, can do nothing " : — Held,
that this was such an inducement
to confess, as would exclude what
the prisoner said. Rex v. Part-
ridge, 7 C. & P. 551— Patteson.
Where a prisoner in a gaol on a
charge of felony asked the turnkey
of the gaol to put a letter in the
post for him, and after his promis-
ing to do so the prisoner gave him
a letter addressed to his father, and
the turnkey, instead of putting it
into the post, transmitted it to the
prosecutor: — Held, that the letter
was admissible against the prison-
er, notwithstanding the manner in
<which it was obtained. Rex v: Der-
rinqton, 2 C. <fc P. 418 — Garrow.
A. was in custody on a charge of
murder. B., a fellow prisoner, said
to him — " I wish you would tell me
how you murdered the boy — pray
1 split." A replied — "Will you be
upon your oath not to mention
what I tell you." B. went upon
his oath that he would not tell.
A. then made a statement : — Held,
that this was not such an induce-
ment to confess as would render
the statement inadmissible. Rex v.
./S%a«j, 6 C. & P. 372— Patteson.
A servant was charged with at-
tempting to set fire to her master^s
house. It was proved that the ftir-
niture in two of the bed-rooms was
on fire, and a spoon and other
articles were found in the sucker
of the pump. The master told the
prisoner that if she did not tell the
truth about the things found in the
pump, he would send for the con-
stable to take her, but he said
nothing to her respecting the fire :
— ^Held^ that this was such an in-
ducement to confess as would ren-
der inadmissible any statement that
the prisoner made respecting the
fire, as the whole was to be con-
sidered as one transaction. Reg. v.
Heam, Car. & M. 109 — Coltman.
Where a prisoner said to the of-
ficer in whose custody he was, " If
you will give me a glass of rin, I
will tell you all about it " :— Seld,
that a confession made in oonse-
quenoe of his having received some
gin was inadmissible. Rex v. /SIsx-
Um, 3 Russ. C. & M. 368.
A girl, accused of poisoning, was
told by her mistress that if she did
not tell all about it that night, a
constable would be sent for in the
morning to take her before a mag-
istrate ; she then made a statement,
which was held to be not adonsa-
ble. Next day a constable was
sent for, and as he was taking her
to the magistrate, she said some-
thing to him, he having held out
no inducement to her to do so ;—
Held, that this was receivable, as
the former inducement ceased on
her being put into the hands of the
constable. Rex v. Richarda^ 5 C.
& P. 318— Bosanquet.
A female servant being suspect-
ed of stealing money, her mistress,
on a Monday, told her that she
would forgive her if she told the
truth. On the Tuesday she was
taken before a magistrate, and was
discharged, no one appearins against
her. On the Wednesday the super-
intendent of police went with her
mistress to the Bridewell, and told
her in the pi'esenoe of her mistress
that she " was not bound to say
anything unless she liked, and that
if she had anything to say her mis-
tress would hear her" ; but the
superintendent, not knowing that
her mistress had promised to for-
give her, did not tell her that if
she made a statement it might he
given in evidence against her. Tic
prisoner made a statement : — ^Held,
that this statement was not recerv-
CONFESSIONS AND ADJVilSSIONS.
539
able, as the promise of the misti-ess
must be considered as still operat-
ing on the prisoner's mind at the
time of the statement ; but that, if
the mistress had not been then
present, it might have been other-
wise. Reg. V. ffewett, Car. & M.
584— Patteson.
Under the Injfhience of a Reward
or a Pardon.] — The mere knowl-
edge by a prisoner of a handbill,
by which a government reward and
a promise of a pardon are oflTered
in a case of murder, are not suffi-
cient ground for rejecting a confes-
sion of such prisoner, unless it ap-
pears that the inducements there
held out were those which led the
prisoner to confess. Reg, v. JBos-
weU^ Car. <fc M. 584 — Cresswell.
Where a prisoner desired that
any handbill that might appear
concerning a murder, with which
he stood charged, might be shewn
to him, and a handbill was shewn
to him by a constable, by wliich a
reward and a free pardon were of-
fered to any but the person who
struck the blow, and the prisoner
three days afterwards made a state-
ment, this statement was held to
be receivable in evidence. lb.
But where it was afterwards
proved by another constable that
the prisoner, on the night before he
made the statement, said to him,
that he saw no reason why he
should sufter for the crime of an-
other, and that as the government
had offered a free pardon to any
one concerned who had not struck
the blow, he would tell all he knew
about the matter : — The judge
held, that the statement that had
already been given in evidence was
not properly receivable, and struck
it out of his notes. lb.
Several prisoners being in cus-
tody on a charge of murder, A.,
who was one of them, said to the
chaplain of the prison, that he
wished to see a magistrate, and
asked if any proclamation had
been made, and any offer of par-
don. The chaplain said that there
had ; but he hoped that A. would
understand that he could offer him
no inducement to make any state-
ment, as it must be his own free
and voluntary act. When A. saw
'the ma^strate, he said that no
person had held out any induce-
ment to him to confess anything,
and that what he was about to say
was his own free and voluntary act
and desire. A. then made a state-
ment to the magistrate: — Held,
that this statement was receivable
against A. on his trial for the mur-
der. Reg. V. Dingley^ 1 C. & K.
637— Pollock.
A., a prisoner charged with mur-
der, was visited by B., who was
both a magistrate and a clergy-
man ; B. told him, that if he was
not the person who struck the fatal
blow, and he would tell all he
knew, he (B.) would use his en-
deavours and influence to prevent
anything from happening to him ;
and that if he (A.) did not make a
disclosure, some one else would
probably do so. After this, B.
wrote to the secretary of state,
who returned an answer tliat mer-
cy could not be extended to A.;
which answer was communicated
by B. to A. After this A. sent for
the coroner and wished to make a
statement. The coroner told him
that if he did, so it would be used
in evidence against him. The pris-
oner made a confession : — Held,
that this confession was admissible.
Rex V. Clexoes, 4 C. & P. 221—
Littledale.
Statements made by a prisoner
with the knowledge of a reward
and a pardon to any but the actual
perpetrator of the offence, and un-
der circumstances which led to the
belief that such statements were
made with the hope of receiving
the reward, and being allowed to
give evidence as a witness on the
540
EVIDENCE.
part of the crown, are inadmissi-
ble. Reg, V. Jilackbiim, 6 Cox,
C. C. 333— Talfourd.
A printed copy of a reward of-
fered for such private information
and evidence as would lead to the
detection and conviction of a mur-
derer or the murderers, and a state-
ment that the secretary of state
would recommend the grant of a
pardon to any accomplice, not hav-
mg been the actual perpetrator of
the murder, who should give such
evidence, was hung up in the mag-
istrate's room in a county gaol. A
prisoner, who could read, made a
statement to the governor of the
gaol in this room, and before that
statement inquired whether he could
give evidence, but did not say that
he made the statement in that ex-
pectation, or in the hope of getting
the reward, and before making the
statement he was told it would be
used against him : — Held, that such
statement was inadmissible. lb.
But statements made, and anony-
mous letters written by a prisoner
before his apprehension, are not in-
admissible merely on the ground of
the prisoner's knowledge of the of-
fer of the reward and pardon, or by
reason of his having been employed
by the police authorities and paid
money for his support, under the be-
lief that he was an important wit-
ness for the crown. lb.
Under the Influence of TkrecUs,^
— The captain of a vessel said to
one of his sailors, suspected of hav-
ing stolen a watch, " That unfor-
tunate watch has been found, and if
you do not tell me who your part-
ner was, I will commit you to pris-
on as soon as we get to Newcastle ;
you are a damned villain, and the
gallows is painted in your face " : —
Held, that a confession made by a
sailor after this threat was not re-
ceivable on the trial for his felonv.
JRex V. Farratt, 4 C. «& P. 570— A1-
derson.
A daughter of the prosecutor (the
prisoner's master), but who did not
live with her father, and was not
the prisoner's mistress, whilst she
had temporary charge of the pris-
oner, who had been previously taken
into custody, said to her, "I am
very sorry for you ; you ought to
have known better. Tell me the
truth whether you did or no. Do
not run your soul into more sin, but
tell the tmth"; when the pris-
oner made a full confession : — Held,
that there was no threat or mduce-
ment held out to the prisoner. Beg,
V. Sleeman, 6 Cox, C. C. 245 ; 2 C.
L. R. 29 ; 17 Jur. 1082 ; Dears. C.
C. 249; 23 L. J., M. C. 19.
Upon the trial of an iudictment
for an unnatural crime with a mare,
one of the witnesses, in the presence
of T., the owner of the mare,
threatened to give the prisoner in
charge of the police if he did not
tell what business he had in T.'s
stable, where the mare was. At
that moment the charge had not
been miade known to the prisoner,
but was immediately afterwards,
and then he confessed : — Held, that
this confession was inadmi^ble,
having been made under the influ-
ence of a threat held out to him in
the presence of one, who, being the
owner of the mare, was Likely to
prosecute for the offence. Beg, v.
iMckhmst, 6 Cox, C. C. 243 ; 28
L. J., M. C. 19 ; Dears, C. C. 245 ;
17 Jur. 1082; 2 C. L. R 129.
A girl was charged with admin-
istering poison witn intent to mur-
der. The surgeon said to her, " You
are under suspicion of this, and you
had better tell all you know." Af-
ter this, she made a statement to
the surgeon : — ^Held, that that state-
ment was not admissible. Bex^.
Kingston, 4 C. & P. 387— little-
dale and Parke.
A constable said to a person
chained with felony, " It is of no
use for you to deny it, for there is
the man and boy who will swesr
they saw you do it": — Held, that
this was such an inducement m
CONFESSIONS AND ADMISSIONS.
541
would exclude evidence of what the
prisoner said. Rex v. Mills, 6 C.
& P. 146— Gumey.
The prosecutor, in the presence of
the constable, said to the prisoner,
" It will be better for you to tell the
truth, as it will save the shame of a
search-warrant in your house." The
statement was rejected. The con-
stable then took the prisoner into a
loft, and, in the absence of the pros-
ecutor, the prisoner made a state-
ment. The evidence was rejected.
Half an hour after, the constable
took the prisoner to the station-
house, and on the way cautioned
him not to say anything, after
which he made a statement : —
Held, to be inadmissible, as the in-
ducement was still operating. Heg,
V. CoUier, 3 Cox, C. C. 57— Wil-
liams.
An inducement or a threat of-
fered by a master to one of two ap-
prentices jointly accused of larceny
will not, though offered in the pres-
ence of the other, preclude the re-
ception in evidence of a confession
immediately made by the other.
jReg. y. Jacobs, 4 Cox, C. C. 54—
Erie.
Obtained by Persons in AvthorityJ]
— It is the opinion of the judges
that evidence of any confession is
receivable, unless there has been
some inducement held out by some
person in authority. Meg, v. Tay-
lor, 8 C. & P. 733— Patteson.
If a person, not in office or in au-
thority, holds out to an accused
party an inducement to confess, this
will not exclude a confession made
to that person. lb.
Where the house of Mr. L. had
been on fire, and the prisoner, a
female servant there, was sent for
into the parlour, where Mr. W., a
person not in authority, in the pres-
ence of Mrs. L., held out an induce-
ment to the prisoner to confess re-
specting the fire, Mrs. L. expressing
no dissent : — Held, that a confes-
sion made after this was not re-
ceivable, as the inducement must
be taken as if it had been held out
by Mrs. L., who was a person in au-
thority over the prisoner. lb.
The wife of a person in whose
house an offence is committed, such
person not being prosecutor, nor
engaged in the apprehension, prose-
cution or examination of the offend-
er, and the offence toot being in any
way connected with the manage-
ment of the house, is not a person
in authority within the rule which
excludes confessions. JReg, v. Moore,
2 Den. C. C. 522 ; 3 C. & K. 153 ;
16 Jur. 621 ; 21 L. J., M. C. 199 ; 5
Cox, C. C. 555.
Upon a trial for child murder the
prisoner's confession to a surgeon,
who was attending her, was ofiered.
Before the surgeon came in, her
mistress had told her that she had
better speak the truth ; and she had
said, in answer, that she would tell
it to the surgeon ; but the husband
of the mistress was not the prosecu-
tor:— Held, that as the ofience
was not an offence against the mis-
tress, she was not a person in such
authority that the inducement which
she had held out would exclude the
confession, which was consequently
admissible, lb,
A daughter of the prosecutor (the
prisoner's master), but who did not
live with her father, and was not
the prisoner's mistress, whilst she
had temporary charge of the pris-
oner, who had been previously taken
into custody, said to her, " I am
sorry for you; you ought to have
known better. Tell me the truth,
whether you did it or no. Do not
run ycur soul into more sin, but tell
the truth "; when the prisoner made
a full confession : — Held, that the
confession was not made to a person
in authority, and was therefore ad-
missible. Meg, V. Sleemaii, Dears.
C. C.249 ; 17 Jur. 1082 ; 23 L. J„
M. C. 19 ; 6 Cox, C. C. 245 ; 2 C.
L. R. 129.
On an indictment for stealing the
goods of two persons in partner-
542
EVTOENCE.
ship, a confession made after an in-
ducement to confess has been held
out in their absence by the wife of
one of them, who assisted in the
management of their business, is
inadmissible. Jieg. v. Warring-
lujtn, 2 Den. C. C. 447, n. ; 15 Jur.
818— -Parke. \
A man and a woman being ap-
prehended on a charge of murder,
another woman, who had the fe-
male prisoner in custody, told her
that she " had better tell the truth,
or it would lie upon her, and the
man would go free ": — Held, that a
declaration of tlie female prisoner
made to this woman afterwards was
not receivable. Rex v. Enoch, 5
C. & P. 539— Parke.
A married woman was appre-
hended on a charge of felony, and
her husband, in the presence of the
constable, held out an inducement
to her to confess. She then made
a statement : — Held, that it was not
receivable ; as an inducement held
out in the presence of tlie consta-
ble, was the same in effect as if it
had been held out by him. Meg.
V. Laugh&r, 2 C. & K. 225 — Pol-
lock.
A constable who apprehended a
prisoner, asked him what he had
done with the tap he had stolen
from the prosecutor's premises, and
said — " You had better not add a
lie to the crime of theft"; — Held,
that a confession made to the con-
stable was not receivable. Hex v.
Shepherd, 7 C. & P. 579— Gaselee.
A woman in custody, on a charge
of murder, was, on arriving at the
faol, placed in a room alone with
I., in order to be searched. E.
was employed as searcher of female
prisoners; but, except in that ca-
pacity, had no other duties or au-
thority in the gaol. Whilst the
usual search was being made, the
prisoner said, " I shall be hung ; I
shall be sure to be hung" ; and,
shortly afterwards, "If I tell the
truth, shall I be hung?" E., in
order to soothe the prisoner, re-
plied, '' No, nonsense, you will not
be hung ; who told you so ? " —
Held, that a statement of the pris-
oner made to E. immediately atler-
wards was not receivable. Reg. v.
Windsor, 4 F. & F. 360— Chanuell
By Persons without AiUhorUji»]
— There is a difference of opinion
among the judges, whether a con-
fession made to a person who has
no authority, after an inducement
held out by that person, is receiva-
ble. Hex V. Speticer, 7 C. <fc P. 776
— Parke.
Tlie confession of a prisoner is
evidence, although previously to it
an inducement to confess had been
held out by another person, if that
person had no authority to do so.
Bex V. Gibbons, 1 C. & P. 97 —
Park.
So a confession by a prisoner to a
constable, who had held out no in-
ducement, is evidence, although an
inducement had been previously
held out by a person in no office or
authority. Rex v. Tyler, 1 C. A P.
129— Hullock.
Any person's telling a prisoner
that it will be better for him to
confess, will exclude a confession
made to that person, although that
person was not in any authority, as
prosecutor, constable, or the lie.
Rex V. Jhmn, 4 C. & P. 543 ; &
P., Rex V. Slaughter, 4 C. & P. 544,
To Chaplains,'] — Where a pris-
oner committed on a charge of mur-
der sent for the chaplain to pray
with him, who told him that, as the
minister of God, he ought to warn
him not to add sin to sin by at-
tempting to dissemble with God,
and that it would be important for
him to confess his sins before God,
and to repair as far as he could any
injury he had done. Tiie chaplain
had two interviews with tlie pris-
oner, and considered he had made
a great impression on him, but dis-
tinctly told him he did not wish
him to confess. Afler this the prift-
CONFESSIONS AND ADMISSIONS.
543
oner made two confessions to the
gaoler and the mayor, after having
been warned of the consequences
by both those persons : — ^Held, that
these confessions were good evi-
dence, and rightly received. JRex
T. GiUiam, Car. C. L. 51 ; 1 M. C.
C. 186.
A chaplain to a workhouse had,
in his spiritual capacity, frequent
conversations there with the pris-
oner, who was charged with the
murder of her child, but who was
too ill to be removed from the work-
house. Semble, that these conver-
sations ought not to be adduced in
evidence at the trial. Jteg. v. Grif-
fin, 6 Cox, C. C. 219— Alderson.
On Interrogations by the Police,']
— The practice of questioning pris-
oners by policemen, and thus ex-
tracting confessions from them,
though it does not render the evi-
dence so obtained inadmissible, is
one which is strongly reprehensible,
and which ought not to be permit-
ted. Reg, V. Mick, 3 F. & F. 822
— ^Mellor.
An answer by a prisoner after his
arrest, to a question asked by a po-
liceman, is inadmissible. lieg, v.
Bodkin, 9 Cox, C. C. 403.
A policeman ought not, in gen-
eral, to question prisoners who are
in his custody ; but if he does, the
interrogation ougnt not to be con-
fined to questions calculated to com-
promise the party. Reg, v. Stokes,
17 Jur. 192— Alderson.
J., suspected of having committed
felony, was followed and stopped by
a constable in plain clothes. The
constable having told J. what he
was, and that she (J.) was charged
with felony^ proceeded to put sev-
eral questions to her relative to a
parcel in her hand, which contained
the goods supposed to have been
stolen. At the time he asked the
questions the constable had not told
J . that she was under arrest, but he
would not let her go. He did not
expressly hold out any threat or in-
ducement to J., nor did he, before
she answered him, give her any cau-
tion. J. having answered the ques-
tions, the constable then told her she
was not bound to ^ay anything that
would criminate herself, and said he
should bring her to the police office:
— ^Held, that the •* conversation be-
tween J. and the constable was re-
ceivable in evidence. Reg, v. John-
ston, 15 Ir. C. L. R. 60— C. C. R.
A policeman asked the prisoner, a
boy between eight and nine years
old, various questions as to his go-
ing to school, knowing the Loin's
Prayer, where he would go to if he
told a lie, whether God knew every-
thing ; and ttien asked, whether he
thought God knew who set fire to
the hay-stack. The boy not an-
swering, and beginning to cry, the
policeman asked him if he could
give any information about the fire,
and receiving no answer, he said he
should apprehend him upon charge
of setting fire to the hay-stack. The
boy then made a statement : — Held,
that it was not admissible. Reg, v.
Day, 2 Cox, C. C. 209— Cresswell
and Williams.
Admissions by a prisoner, elicited
by questions of a police officer, with
an admonition to tell all she knew,
are inadmissible. But a subsequent
statement by the prisoner to another
officer is not necessarily so far under
the same infiuence as to exclude it.
Reg, V. Cheverton, 2 F. & F. 833—
Erie.
A. was indicted for stealing a
shilling which had been previously
marked and put into a till. A con-
stable found the shilling in his pos-
session, and asked him if he had
any more money about him. The
prisoner produced some half-crowns,
and then made a statement : — Held,
that this statement was not receiv-
able, on the ground that it related
to another and distinct felony. Reg.
V. BiUler, 2 C. & K. 221— Piatt.
Previous Warning by Police,'] —
Though there may be cases in which
\
544
EVIDENCE.
it will be proper, yet, as a general
rale, it is better that a policeman
should not question a prisoner in his
custody, without cautioning him
that his answers will be evidence
against him. Heg. v. Kerr^ 8 C. &
p. 177— Park.
Where a police constable, who
apprehended the prisoner, having
told him the nature of the charge,
said " he need not say anjrthing to
criminate himself; what he did say
would bo taken down and used
as evidence against him " ; and the
prisoner thereupon made a confes-
sion : — ^Held, receivable. Reg, v.
Baldry, i Den. C. C. .430 ; 16 Jur.
599 ; 21 L. J., M. C. 130 ; 19 L. T.
146.
A constable ought not to caution
a prisoner not to say anything. A
constable is not to lead a prisoner to
to say anything ; but if a prisoner
chooses to say something, it is the
duty of the constable to hear what
it is he has to say. Reg, v. Priest^
2 Cox, C. C. 378— Patteson.
A statement made by one of two
prisoners to the other after an in-
ducement suggested by that other
in the presence of the constable in
whose custody they are, and uncon-
tradicted by the constable, is inad-
missible. ±teg V. MiUen^ 8 Cox, C.
C. 507.
In Private Conversations,^ — ^Wh at
a prisoner is overheard to say to his
wife, or even what he is overheard
to say to himself, is receivable
against him on a charge of felony ;
it is, however, a species of evidence
to be acted on with caution, as it is
very liable to be unintentionally
misrepresented by the witnesses.
Rex V. Simons, 6 C. & P. 540— Al-
derson.
A conversation between the pris-
oner and his mother, in which she
made a statement to his prejudice,
which he denied, is not admissible
against him. Reg, v. Welsh^ 3 F. &
R 275— Martin.
But a conversation between two
persons in relation to the charge un-
der investigation made in the presenoe
of the prosecutrix, but in the ab-
sence of the prisoner, was admitted.
Reg. V. Amall, 8 Cox, C. C. 439-
Maule.
If a witness gives evidence of a
conversation with a prisoner, in
which that prisoner says something
implicating another prisoner, the
witness, in giving his evidence, must
not omit the name of such other
prisoner, and sav " another person,"
but must give the conversation ex-
actly as it occurred, and the judge
will tell the jury that is not evi-
dence against such other prisoner.
Rex V. Heame, 4 C. A P. 215—
Littledale ; S. P., Reg. \. WaJkfy, 6
C. & P. 175— Gumey.
Bg Wife J in presence and hearing
of Prisoner.] — ^What the wife of a
person charged with felony says in
his presence and hearing is admis-
sible on the trial. Rex v. RartkU,
7 C. & P. 832— Bolland.
On Examination before Magis-
trates."] — ^An examination of a pris-
oner charged with a felony taken
without threat or promise, by ques-
tions put by the magistrate, is not-
withstanding admissible. Bex v.
RUis, R. & M. 432— Littledale; S,
P., Rex V. Rartlett^ 7 C. & P. 832—
Bolland.
Where A. and B. were charged
with the joint commission of a fel-
ony, and A., on his examination be-
fore a magistrate, stated, in the
hearing of B., that he and B. jointly
committed such felony, which B.
did not deny: — Held, that these
circumstances were not admissible
as evidence against B. .Rex v. Ap-
plehy, 3 Stark. 38— Holroyd.
Previous Caution or Warning hy
Magistrates.Y^The 11 & 12 Vict. c.
42, s. 18, which requires a caution
to be given by the magistrate to the
prisoner applies only to the conclud-
ing proceemngs of the examination ;
CONFESSIONS AND ADMISSIONS.
545
and, tlierefore, a volnDtary state-
ment made by a prisoner in the
course of an examination before a
magistrate, and before all the wit-
nesses have been examined, is ad-
missible at the trial, although no
caution has been given by the mag-
istrate. Beg, V. Stripps^ Dears. C.
C. 648 ; 2 Jur., N. S. 452; 23 L. J.,
M. C. 109.
When a prisoner is willing to
make a statement, it is the duty of
magistrates to receive it ; but ma-
gistrates, before they do so, ought
entirely to get rid of any impression
that may have before been on the
prisoner's mind, that the statement
mav be used for his own benefit;
and the prisoner ought also to be
told, that what he thinks fit to say
will be taken down, and m^y be
used against him on the trial. Heg,
V. Arnold, 8 C. A P. 621— Den-
man.
The committing magistrate told
a prisoner that he would do all that
he could for him if he would make
a disclosure ; after this, the prisoner
made a statement to the turnkey of
the prison, who held out no induce-
ment to the prisoner to confess : —
Held, that what the prisoner said to
the turnkey could not be received,
more especially as the turnkey hAd
not given the prisoner any caution.
Jiex V. Cooper, 5 C. & P. 585 —
Parke.
A prisoner ought to be told by
the magistrate that if he makes any
statement it may be used as evi-
dence against him, and that he must
not expect any favour if he confess-
es ; but the magistrate ought not to
dissuade him from confessing. JRex
V. Green, 5 C. & P. 312 — Gumey.
A prisoner was before a magis-
trate on a charge of felony, and, af-
ter the examination of the witnesses
against him, the magistrate said to
him, " Be sure you say nothing but
the truth, or it will be taken against
you, and may be given in evidence
against you at your trial " : — ^Held,
that this did not exclude the prison-
er's statement from being given in
evidence. Heg. v. Holmes, 1 C. &
K. 248— Rolfe.
On a prisoner being brought be-
fore a magistrate on a charge of
forgery, the prosecutor said, in the
hearing of the prisoner, that he con-
sidered the prisoner as a tool of G. ;
and the magistrate then told the
prisoner to be sure to tell the truth ;
upon this the prisoner made a state-
ment:— Held, that the statement
was receivable. JRex v. Court, 7
C. & P. 486— Littledale.
Where a person, who made a con-
fession to a constable in consequence
of a promise held out, was taken
before a magistrate, who, knowing
what had taken place, cautioned
the prisoner against making any
confession before him, but the pris-
oner, notwithstanding, did make a
confession to the magistrate : — ^Held,
that this second confession was re-
ceivable on the trial of the prisoner,
though it did not appear that the
magistrate told the prisoner that his
first confession would have no effect,
and he therefore might have acted
under an impression that, having
once acknowledged his guilt, it was
too late to retract. JRex v. Howes,
6 C. & P. 404— Denman.
Where Prisoner is fSwomJ] —
Several persons, one of whom was
the prisoner, were summoned before
the committing magistrate touching
the poisoning of A. No person was
then specifically charged with the
offence. The prisoner was sworn,
and made a statement : — Held, that
this statement was not receivable,
Hex V. JLeiois, 6 C. & P. 161— Gur-
ney.
When before the committing ma-
gistrate one of the prisoners was ex-
examined as a witness against the
other : — Held, that what that prison-
er said before the ma^strate could
not be given in evidence on the
trial. JRex v. Davis, 6 C. &. P. 177
— Gumey.
A statement relating to an of-
546
EVIDENCK
fence, made upon oath by a person
not at the time under suspicion, is
admissible against him, if he is af-
tei-wards charged with the commis-
sion of it. jRex V. Tubby ^ 5 C. &
p. 530— Vaughan. '
Mode of Taking.'] — A prisoner be-
fore the conMnitting magistrate made
a stateinent, which by mistake was
written in the information book,
and headed " The information and
complaint of R. B." : — Held, that
it was not receivable, although the
mistake could not have been ex-
plained by the magistrate's clerk.
Rex V. Benthy, 6 C. &. P. 148-^
Gurney.
After the examination of a pris-
oner before a magistrate on a charge
of felony had been taken down and
read over to him, and he was
told that he might sign it or not,
but he declined to do so: — Held,
that it could not be read in evidence
against him. Rex v. Telicote^ 2
Stark. 483— Tf ood.
A prisoner, when before the com-
mitting magistrate, was sworn by
mistake, he being supposed to be a
witness ; as soon as the mistake was
discovered, the deposition which
was begun was destroyed, and the
prisoner cautioned. After this he
made a statement : — Held, that such
statement was receivable. Rex v.
Webb, 4 C. <fc P. 564— Garrow.
Mode of Proving,] — Where, on
the examination befoi*e the magis-
trate of persons charged with felony,
the magistrate's clerk, in taking
down the prisoner's statements, had
left a blank where either of the pris-
oners had mentioned the name of
another of the prisoners, the judge
at the trial would not allow these
blanks to be supplied by parol evi-
dence. Reg, V. Morse, 8 C. & P.
605— Patteson.
If a prisoner, during the examin-
ation of witnesses against him be-
fore the magistrate, makes an ob-
servation, parol evidence may be
given of such observations if the ma-
gistrate's clerk proves that he only
took down the evidence of the
witnesses apd the statement of the
prisoner, after the evidence against
him was concluded. Rex v. Spik-
bury, 7 C. & P. 187.
Where the examination of a pris-
oner by a coroner was in^tdmissible
on account of an irregularity in the
mode of taking it, the coroner was
allowed to give parol evidence of
what the prisoner said on the occa-
sibn of his examination. Rez v.
Reed, JVL & M. 403— Tindal.
Parol evidence may be given to
add to the written examination of a
prisoner taken by a magistrate:
Rex V. Hearts, 1 M. C. C. 338.
On the trial of a prisoner who
has made before a magistrate a
voluntary confession of his gailt,
previously to the conclusion of the
evidence against him, which confes-
sion is taken down in writing, and
signed by the prisoner, and attested
by the magistrate's clerk, the prop-
er course is for the clerk to give
evidence oi the prisoner's statements,
refreshing his memory by the writ-
ten paper. Rex v. &/?, 5 C. A P.
162 — ^Tenterd^i and Gaselee.
A prisoner charged with felony
made a statement before the com-
mitting magistrate, which was tak-
en down in writing, but not signed
by the prisoner : — ^Held, that the
magistrate's clerk might give evi-
dence of what the prisoner sud,
using that which was taken down
to refresh his memory. Rex v.
Pressly, 6 C. & P. 188— Patt«soa
A prisoner charged with felony
made a statement before the com-
mitting magistrate, which was tak-
en down and signed by the prisoner,
but there was nothing on the &ce
of the paper to shew that at the
time the prisoner made the state-
ment he was under examination cm
a charge of felony : —Held, that this
examination could not be used as
such but that the clerk to the ma-
gistrate might state what the pris-
oner said, using the paper to refresh
CONFESSIONS AND ADMISSIONS.
547
his memory. JRex v. Tarrant^ 6 Q.
& P. 182— Patteson.
A magistrate may give evidence
of what a prisoner 6aia at examina-
tions before bim, althougb much of
what he said was in answer to ques-
tions pat by tbe magistrate, no
threat or promise being used, and
the prisoner had refused to sign the
magistrate's notes of the examina-
tion, on the ground that they were
an incorrect account of the transac-
tion. JRex V, JoneSy Car. C. L. 13
— Bayley, Gaselee and Yaughan.
And the magistrate may refresh
his memory from the notes. Ih.
Minutes taken by the solicitor for
a prosecution, on the examination of
a prisoner before a magistrate, and
by his direction may be read in evi-
dence at the trial, though not^ sign-
ed either by the prisoner or the ma-
gistrate. Rex V. Thomas^ 2 Leach,
U. C. 637 ; S, P., Rex v. Bradbury,
2 Leach, C. C. 689, n.
A prisoner being under examma-
tion before a magistrate on a charge
of felony, a statement was made m
his presence by the solicitor for the
prosecution, which the witness call-
ed to prove it said he believed had
been taken down in writing : — Held,
that parol evidence of the statement
was not admissible on the trial of
such prisoner. Rex v. HoUinffshead
4 C. & P. 242— Vaughan.
It is to be presumed that what is
stated on oath before a magistrate
is taken down in writing, and tliere-
fore parol evidence of such a state-
ment is not receivable, unless it is
first shewn that it was not so taken
down. Phillips v. Wimbum, 4 C.
& p. 273~Tindal.
If a prisoner's examination before
a magistrate concludes " taken and
sworn before me," and under that
is the magistrate's signature, it is
not receivable ; and the judge will
neither allow the magistrate's clerk
to prove that, in fact, it was not
sworn, nor will he receive parol ev-
idence of what the prisoner said.
Rex V. Rivers, 7 C. & P. 177—
Park.
A party, who was charged with
a mui-der, made a statement before
the coroner at the inquest, which
was taken down. The paper pur-
ported that the statement was made
on oath : — ^Held, that, on the tri-
al of the party for murder, this
statement was not receivable ; and
that parol evidence was not admis-
sible to shew that no oath in fact
had been administered to the pris-
oner. Reg, V. Wheeley, 8 C. & P.
250 — Alderson.
The magistrate returned at the
end of the depositions against ^a
prisoner in a case of felony — " The
prisoner being advised by his attor-
ney, declines to say anything. " It
appeared at the trial, that the de-
positions had been taken and signed
by the witnesses on the 14th of No-
vember; but that, on the 10th of
November, minutes had been taken
of the evidence, and the prisoner
had made a statement, which was
taken down in writing by the mag-
istrate's clerk: — ^Held, that this
statement might be proved on the
part of the prosecution by the clerk
who took, it down ; as, whatever a
prisoner has said is evidence, though
the magistrate may have neglected
his duty in not returning it with the
depositions. Reg. v Wilkinson, 8
C. & P. 662— Littledalc and Parke.
A magistrate returned with the
depositions taken before him, that
the prisoner said — " I decline to say
anything " : — Held, that a witness
for the prosecution could not be al-
lowed to give evidence of the terms
of a confession, which he stated the
prisoner made in the presence of
the ma^strate, and while under ex-
amination. Rex V. Wcdter, 7 C. &
P. 267— Abinger.
It is not necessary to call either
the magistrate or his clerk to prove
the due taking in writing of a pris-
oner's confession. Rex v. HopeSy 7
C. & P. 136.
548
EVIDENCK
A prisoner's gtatement, on his ex-
amination before a magistrate, may
be given in evidence (if neither the
magistrate nor his clerk is in court),
on proof by a witness who was at
the examination of the handwriting
of the magistrate to the depositions
returned to the court, and also that
it was taken down in writing, and
read over to the prisoner. Sex v.
Heading, 7 C. & P. 649— Parke ;
S. P., iiex V. Rees, 7 C. & P. 568 ;
S, P., Bex V. Chappel, 1 M. <fe Rob.
395 — Denman.
If a prisoner, when examined be-
fore a magistrate, says that the de-
position of F. T. is true, the deposi-
tion of F. T. may be read at the
trial as a part of the prisoner's state-
ment, although F. T. has been ex-
amined at the trial as a witness for
the prosecution. JRex v. John, 7 C.
6 P. 324— Patteson.
Where a magistrate has signed
the examination of a prisoner under
7 Greo. 4, c. 64, in order to allow it
to be read on the trial, it is suffi-
cient to prove the handwriting of
the magistrate, and to shew that the
examination is that of the particu-
lar prisoner. JRex v. Foster, 7 C.
& P. 148— Alderson.
A. gave a mortal blow to B., his
master, who took out a waiTant
against A. for an assault. The
charge of assault was heard un-
der this warrant before Mr. D.
and another magistrate, who sum-
marily convicted A. of the assault.
What was said by A. and B. be-
fore the magistrates was not taken
down in writing. B. died : — ^Held,
that on the trial of A. for the mur-
der of B., Mr. D. might give evi-
dence of what B. said in the pres-
ence of A. at the hearing before the
magistrates of the charge of assault,
and of what A. said in answer to it.
Bex v. Edmunds, 6 C. & P. 164—
Tindal.
Proof of Circumstances before de-
ception.]—A person charged with
murder made a confession before
the coroner. It appeared that, be-
fore he made this confession, B.,
who was both a clergyman anda mag-
istrate, had had an interview wiSi
him : — ^Held, that the prosecutors
were not bound to call B. before
they put in the confession, but that
it would be fair for them to do so ;
and that if the prosecutors did not
call B., the prisoner might call him
before the confession was read to
prove that some inducement was
held out. Bex v. Glewes, 4 C. A
P. 221— Littledale.
A prisoner was in the custody of
A., a constable ; B., another consta-
ble, coming into the room, A left
it, and the prisoner immediately
made a confession to B. : — Held,
that, if the prisoner was in custody
as an accused party, A. must le
called to prove that he had held out
no inducement to the prisoner to
confess, before the confession made
to B. is receivable ; but if it appears
that the prisoner was not then in
custody on any charge, but merely
detained as an unwilling witness, it
will not be necessary to call A
Bex V. Swathins, 4 C. & P. 548 —
Patteson.
If a prisoner makes a confej^on
to a constable, who takes down
what he says, and the prisoner
signs it, this paper will be read by
the officer of the court. Ih,
In order to render a confesaon by
a prisoner admissible, the prosecution
must shew affirmatively, to the sat-
isfaction of the judge, that it has
not been made under the influence
of an improper inducement ; if this
appears doubtful on the evidence
the confession ought to be rejected
Beg, V. Warringham, 2 Den. C. C.
447, n.; 15 Jur. 818— PSirke.
At the trial of a servant for at-
tempting to poison her mistress, a
medical man having denied that he
had held out any inducement to the
prisoner to confess, gave evidence of
a confession, without which the pris-
oner could not have been convictei
Evidence was then given that before
CONFESSIONS AND ADMISSIONS.
549
she made her confession he had said
to her, in the presence of her mis-
tress, " It will be better for you to
tell the truth. " The medical man
was recalled, but did not admit
this, and the judge left the ev-
idence, including the confession, to
the jury, but reported, that if the
evidence had been given in the first
instance he should have excluded
the confession : — Held, that the con-
fession ought to have been struck out,
and that the conviction was wrong.
Reg, V. Garner^ 3 New Sess. Cas.
329 ; 1 Den. C. C. 329 ; T. &M. 7 ;
2 C. & K. 920 ; 12 Jur. 944 ; 14 L.
J., M. C. 1 ; 3 Cox, C. C. 175.
Admissibility far and against Pris-
oner.']— If the declaration of the pris-
oner, in which she asserts her inno-
cence, is given in evidence on the
part of the prosecution, and there is
evidence of other statements con-
fessing gnilt, the judge will leave
the whole of the conflicting state-
ments to the jury for their consider-
ation ; but if there is in the whole
ease no evidence but. what is com-
patible with the assertion of inno-
cence so given in evidence for the
prosecution, the judge will direct
an acquittal. Hex v. Jones, 2 C. 4&
P. 629— Bosanquet.
If a prosecutor proves in evidence
a declaration made by a prisoner, it
becomes evidence for the prisoner as
well as against him, but like all oth-
er evidence, the jury may give cred-
it to one part of it and not to anoth-
er. Hex V. Biggins, 3 CAP. 603
— ^Parke.
If a prosecutor gives in evidence
a declaration made by a prisoner ex-
culpatory of himself, the jury is not
bound to take this to be true mere-
ly because the prosecutor gives it in
evidence; but they ought to con-
sider how far it is consistent with
the rest of the evidence, and wheth-
er they believe it to be really true.
Hex V. Steptoe, 4 C. & P. 397—
Park and Garrow.
In an indictment for highway
robbery, accompanied by violence,
witnesses were called for the prison-
er, to shew that he had received
certain marks of blood on his coat
before the robbery : — Held, that it
was competent to the prosecution to
put in the prisoner's statement be-
fore the magistrate, wherein he gave
a different account of the same mat-
ter. jReg. V. White, 2 Cox, C. C.
192.
An incidental observation made
by a prisoner in the course of his
examination before a magistrate,
which is not taken down as part of
the prisoner's statement, is not ad-
missible in evidence against him at
the trial ii* it relates to any matter
which formed part of the judicial in-
quiry then being conducted before
the magistrate. Heg. v. Carpenter,
2 Cox, C. C. 228— Wilde.
Prisoner's Statement] — A prison-
er, indicted for stealing two heifers,
said, " I drove away two heifers
from ' the World's End Dolver ' "
(i. e. Fen). The prosecutor's farm
was called by that name, but he
could not swear that there was not
any other of the same name in the
neighbourhood : — Held, insufficient
to warrant a conviction. Hex v.
Tufs, 5 C. & P. 167— Lyndhurst.
On a trial for felony, a prisoner,
if defended by counsel, ought not to
be allowed to make a statement to
the jury in his defence. Heg, v.
Manzano, 2 F. & F. 64 ; 6 Jur., N.
S. 406— Martin.
A prisoner will be allowed to
make his own statement to the jury,
but his counsel cannot be permitted
afterwards to address the jury for
him. Heg. v. Tayhr, 1 F. & F.
535 — Byles.
A statement made by a prisoner
before suspicion attaches to him,
and before search made, in order to
account for his possession of proper-
ty, which he is afterwards charged
with having stolen, is admissible as
650
EVIDENCE.
evidence for him. Reg. v. Abra-
ham, 3 Cox, C. C. 430 ; 2 C. & K.
550 — Alderson.
Written notes made by the coro-
ner of a statement made in his pres-
ence during an inquest by the pris-
oner may fie used by him at the tri-
al, in order to refresh his memory
as to what that statement was. Reg,
V. Wiggins, 10 Cox, C. C. 562—
Lush.
The reading of such notes does
not entitle the prisoner to have the
depositions of other witnesses taken
in the course of the same inquest
read. lb.
The court refused, on the applica-
tion of the prisoner's counsel, to call
a witness who had been examined
before the coroner, but had not been
called by the prosecution. lb,
2. Depositions,
By 30 & 31 Vict. c. 35, s. 6, " de-
" positions of persons dangerously
" ill or unable to travel, may be
" taken, and their testimony per-
" petuated and given in evidence,
" in event of death ; and by s. 7,
" an accused party may be present
" at the examination. "
(a) Mode of Taking,
(11 4- 12 Vict, c. 42, ss. 17, 18, 19.)
Before Magistrates,^ — On a charge
of felony, the witnesses who make
the depositions on which the prison-
er is committed should be examined
in the prisoner's presence, and he
should hear all the questions put
and answered; and if the magis-
trate's clerk, before the arrival of
the magistrates and of the prisoner,
examines the witnesses and takes
down what they state, and when
the magistrates and prisoner arrive
the depositions so taken are read
over to the witnesses in the presence
of the magistrates and the prisoner,
and the latter is asked whether he
has any question to put to any of
them, this is wrong. Reg, v. John-
son, 2 C. & K. 394— Piatt
Where witnesses were sworn and
examined before a magistrate, in the
presence of the prisoner, and min-
utes of the evidence were written
down by the clerk to the magis-
trates, and afterwards the deposi-
tions were written out from the
minutes and the statements of the
witnesses, by a 'clerk in the magis-
trates' clerk's office, after wmch
the depositions so written out were
read over, and signed in the pres-
ence of the magistrate and the pris-
oner; — Held, that an answer given
by a witness to the clerk in the magis-
trates' clerk's office, in the course of
writing out the depositions, was
properly receivable in evidence,
without the production of the depo-
sitions. Req, V. Christopher, 4 New
Sess. Cas. 139 ; 2 C. & K. 994; 1
Den. C. C. 536 ; T. A M. 225 ; 14
Jur. 203 ; 19 L. J., M. C. 103.
If the confession of a prisoner
taken before a ma^strate is by him
transmitted to the judge, and it has
on the face of it a statement that
the first caution required by the 11
& 12 Vict. c. 42, 8. 18, has been
given, it is receivable in evidence;
but semble, that if it appeared that
an inducement to confess had been
previously held out to the prisoner,
it would be necessary to shew
that the second caution prescribed
by that statute had been ^ven. The
prudent course is for the magistrate
to give both the cautions, as some
inducement to confess may have
been held out to the prisoner of
which the magistrate is not aware.
Reg, V. Sansome, 3 C. & K. 832 ; 1
Den. C. C. 545 ; 4 New Sess. Cas.
152; T. & M. 260; 4 Cox, C. C.
203 ; 14 Jur. 466 ; 19 L. J., M. C.
143.
It would be always desirable
when a person of weak intellect is
examined before a magistrate in a
felony, that the magistrate's clerk
should take down in the depositions
the questions put by the magistrate,
and the answers given by the wit-
ness as to the witness's capacity to
DEPOSITIONS.
551
take an oath. Meg, v. Jointer, 2
C. & K. 319 ; 2 Cox, C. C. 244—
Wilde.
In a case of felony the commit-
ting magiBtrate is not bound to bind
over all the witness who have
been examined before him in sap-
port of the charge, but only those
whose evidence is material |o the
charge; but it is very desirable
that all that has been given in evi-
dence before the magisti-ate should
be transmitted to the judge. Heg.
V. Smith, 2 C. & K. 207— Denman.
Everything that occurs before a
magistrate on the examination of a
person on a charge of felony, sliould
be taken down m the depositions,
if it is material. Reg, v. WeQer^
2 C. & K. 223— Piatt.
Where, during the examination
of a witness before a magistrate in
support of a chai^ge of felony, the
prisoner interposes an observation
which is material, such observation
should be taken down in the deposi-
tions ; and if it is not, the judge at
the trial will not allow any evidence
of it to be given. lb.
Where a prisoner sent for a mag-
istrate to make a statement to him,
and the magistrate took down the
conversation which passed between
him and the prisoner, and wrote it
immediately under the usual head-
ing of a prisoner's statement, and
read this over to the prisoner before
the prisoner signed his statement
which followed it, the judge direct-
ed this memorandum of the conver-
sation to be read before he decided
on the admissibility of the state-
ment, instead of the magistrate
stating orally what passed between
him and the prisoner. Meg, v. IXng-
leg,lC,& K. 637— Pollock.
The prosecutor proved that when
the prisoner was before the magis-
trate, she was duly cautioned, and
Uiat she made a statement, which
was taken down and read over to
her, and to which she made her
mark, the magistrate also signing it.
The prosecutor identified the paper
by his own signature to his own de-
position, being on the same sheet of
paper: — Held, that the prisoner's
statement might be given in evi-
dence without examining either the
magistrate or his clerk. Meg, v.
JETeam, Car. & M. 109— Coltman.
The depositions of a deceased
witness, though not taken wholly in
the prisoner's presence, are admissi-
ble, if the party was re-sworn, and
the depositions read and signed in
his presence. Mex v. Smith, 2 Stark.
208; Holt, 614; R. & R. C. C.
339 ; see Meg, v. Walsh, 5 Cox, C.
C. 115.
If a prisoner is brought before a
magistrate, his statement ought not
to be taken till the evidence against
him is gone through, and he i^ould
then be asked if he has anything to
say in answer to the charge. Mex
V. Fagg, 4 C. & P. 566— Garrow.
A deposition taken by virtue of 11
& 12 Vict. c. 42, s. 17, may be read
in evidence against a prisoner, al-
though taken before two magis-
trates who acted only upon that oc-
casion, and the prisoner was after-
wards committed for trial by an-
other magistrate. Meg. v. De Vi-
dU, 9 Cox, C. C. 4— Blackburn.
In order to render depositions
taken beforea magistrate admissible
in evidence upon the trial of a pris-
oner, they must be taken in his
presence and in that of the magis-
trate, and the prisoner must have an
opportunity of cross-examining the
witnesses in the presence of the mag-
istrate. Meg, V. Watts, L. & C.
339;12W.R. 112; 9 L. T, N. S.
453 ; 33 L. J., M. C. 63 ; 9 Cox, C.
C. 395.
A deposition of a deceased wit-
ness, partly taken from the examin-
ation of the witness in the presence
of the party accused on a previous
day, and not then • read over, but
read over on a subsequent examina-
tion of the witness in the presence
of the party accused, the witness
then being further examined, and
cross-examined on behalf of the
552
EVIDENCE.
party accused, and the notes of the
magistrates' clerk of the whole be-
ing subsequently fairly copied in an
adjoining room, and then read over
to the witness in the presence of the
party accused, and signed by the
witness and the magistrate, is ad-
missible. Meg, V. Bates^ 2 F. <& F.
317— Hill.
Deposition of a witness taken
before magistrates allowed to be
read at the trial as evidence against
him, although after his evidence
was taken the magistrates commit-
ted liim for trial, his evidence crim-
inating himself. Reg. v. Ghidley^ 8
Cox, C. C. 365 — Cockbum.
Upon a trial for manslaughter
the prisoner's deposition on oath,
taken by the coroner upon the in-
quest, is admissible against him.
Beg, V. Bateman, 4 F. <fc F. 1064—
Martin.
But a deposition not taken in his
presence will be rejected. Beg. v.
Bigg, 4 F. & F. 1085-^mith.
Q. was charged on an indictment
with the wilful murder of his wife.
The injuries which resulted in her
death were inflicted by the prisoner
on the 18th December, 1867 ; she
died on the 23d December ; but the
prisoner was not taken into custody
till the 3rd January, 1868. On the
22nd December, 1867 (the day be-
fore she died), she being then in the
hospital, and having been told by
the m^cal atten&nt that "he
thought there were little hopes of
her living, and that he thought she
was going to die," and she herself
saying, " I know I shall never get
better ; what will become of my
poor children?" made a statement
which was taken down in writing in
thd presence of the .magistrate. At
the trial, it was proposed on behalf
of the prosecution to give this state-
ment in evidence under 30 <& 31
Vict. c. 35, 8. 6 :— Held, that the
statement could not be read in evi-
dence without proof of notice hav-
ing been given to the accused be-
fore it was taken; and that the
statute could have no operation in
the case of a deposition taken while
the accused person was kee^ung out
of the way, as the notice was re-
quired to be given to the accused
before the taking of the statement,
and not simply before the reading of
it. Beg, v. Quigley, 18 L. T., jf. S.
211 — Mellor and Lusli.
Of Witnesses for Prisoner, '\ —
Where a prisoner charged with fel-
ony has witnessas in attendance at
the time of the examination before
the magistrate. Lord Denman, C.
J., recommended that they should
be then examined, if the prisoner
wishes it, and if their evid^oe is
believed, and answers the chai^,
no further proceedings need be
taken. Anon,, 2 C. & K. 845.
But if these witnesses contradict
those for the prosecution in material
points, the case should be sent to
a jury, and the depositions of the
prisoner's witnesses should betaken,
and signed by them, and transnit-
ted to the judge, together with the
depositions in support of the charge.
Ih,
Before Coroners.^ — ^A deposition
taken before a coroner on an in-
quest is admissible where the wit-
ness is so ill as to be unable to at-
tend at the trial, in the same man-
ner as a deposition taken before a
magistrate. Beg. v. HazeU, 8 Cox,
C. C. 443— Wightman.
Depositions taken before the c<w^
oner on an inquisition of murder,
cannot be read in evidence on the
trial of the indictment, though the
deponents are dead, if tliey are not
signed by the coroner, or if signed,
and his handwriting cannot be prov-
ed. Bex V. England, 2 Leaco, C.
C. 770.
On a trial for murder, the depofl-
tion on oath of the prisoner, taken
before the coroner on the inquest
held on the body of the deceased,
is not receivable in evidence. Reg*
V. (horn, 9 C. & P. 238— Gumey.
DEPOSITIONS.
558
The depofition of a prisoner at a
coroner's inquest, after a caution
from the coroner, may be read.
Seg. V. Colmer, 9 Cox, C. C. 506—
Martin.
Before ContidsJ] — Semble, that
depositions taken by a consul abroad
under 7 & 8 Vict. c. 112, ss. 58,
59 9 and returned to tliis country,
and certified under the consular seal
to have been duly taken, are admis-
sible under the Mercantile Marine
Act, 1850 (18 & 14 Vict. c. 93, s.
115), without further proof, although
it appears from extrinsic evidence
that the witnesses gave their evi-
dence in a foreign language, which
was translated into English to the
prisoner, and inserted in the depcnsi-
tions by the consul. Reg, v. Mus-
uU, 6 Cox, C. C. 60.
Taken Abroad — Absence of Wit-
ness.']— A witness, whose evidence
had been taken abroad by the Brit-
ish consul, under 17 & 18 Vict. c.
104, s. 270, was the captain of a
British sailing vessel, which was
stated, after examination of the of-
ficial records by an oflicer of the
Board of Trade, never to have been
in this country. When some of the
witnesses left the captain, he was in
charge of the vessel at Bordeaux,
but it was not known where she
was then bound for, or whether she
had since sailed : — Held, that it was
snfScieutlY proved that the witness
was not m the United Kingdom,
and his deposition was accordingly
admitted. Reg, v. Ai%derson^ 11
Cox, C. C. 154— Byles : S, P,,Reg.
V, Conming, 11 Cox, C. C. 134 —
Willes.
Signing,'] — A magistrate must
sign a deposition of a witness at the
foot of such deposition. Reg. v.
Richards, 4 F. & F. 860— Cock-
bum.
To the deposition of a marksman,
the magistrates' clerk attached the
prisoners name, so that it appeared
Fish. Dig.— 42.
to have been signed by the prison-
er's mark : — Held, that the deposi-
tion was properly received in evi-
dence against him. Reg, v. Mtdlenj
9 Cox, C. C. 339.
Caption,] — The title or caption
of the written deposition of a wit-
ness, taken before a committing
magistrate, need state no more than
that it is the deposition of the wit-
ness, and that the examination had
reference to the particular charge
upon which the prisoner is being
tried. Reg. v. Langridge or Lang-
bridge, T. & M. 146 ; 1* Den. C. C.
448 ; 3 New Sess. Cas. 645 ; 2 C.
& K. 975 ; 13 Jur. 545 ; 18 L. J.,
M.C. 198; 3 Cox, C. C. 465.
In order to make the deposition
of a deceased witness admissible
against a prisoner charged with fel-
ony, such deposition need not have
a separate caption. If there is a
caption at the head of the body of
depositions taken in the case, that is
sufficient. Reg. v. Johnson, 2 C. &
K. 355 — ^Alderson.
In felony the depositions had one
caption which mentioned the names
of all the witnesses, and at the end
had one jurat which also contained
the names of all the witnesses, and
to which was the signature of the
magistrate, and each witness signed
his own deposition : — Held, to be
correct. Reg, v. Yoyng, 3 C. &
K. 106— Williams.
An examination of a man touch-
ing injuries which he has received
from the prisoner, if, subsequently
on the death of the injured man
from the injuries he has received,
appended to a caption, charging the
prisoner with his murder, is inad-
missible on that charge, although it
may be admissible as a dying dec-
laration. Reg. V. Clarke, 2 F. & F.
2 — Wightman.
A woman having had a rape
committed upon her by two, the
next day, in distress of mind, cut
her throat, and being likely to die;
a magistrate was sent for, and in
554
EVIDENCE.
the presence of the prisoners, her
deposition was properly taken. She
was told she was Ukely to die, and
she died a few days afterwards. Sub-
sequently other witnesses gave evi-
dence against the prisoners before a
different magistrate, and to these
latter depositions the deposition of
the deceased was attached, without
any separate caption : — Held, that
the deposition of the deceased, hav-
ing no caption shewing on what
charge it was taken, was inadmissi-
ble; nor was it admissible as a
dying declaration, as it did not re-
late to the offence which caused the
death. JReg, v. Newton, 1 F. & F.
641— Hill and Watson.
General Admissibility,'] — A state-
ment made by a prisoner before a
committing magistrate, and signed
by the prisoner and the magistrate,
if taken in the form prescribed in
the schedule to 11 & 12 Vict. c. 42,
is admissible in evidence against him
at his trial at common law. Reg,
V. Sansome, 1 Den. C. C. 545 ; 4
New Sess. Cas. 152 ; T. & M. 260 ;
2 C. & K. 332 ; 14 Jur. 466 ; 19 L.
J., M. C. 143 ; 4 Cox, C. C. 203.
It will be prudent for justices al-
ways to give the prisoner the second
vcaution as well as the first. lb.
After taking the examination of
the witnesses on a charge of felony
against the prisoner, the magistrate
cautioned the prisoner in the lan-
guage prescribed by 11 & 12 Vict,
c 42, s. 18, but did not, as the pro-
viso to that section requires, tell the
prisoner he had nothing to hope
from any promise of favour, or to
fear from any threat. The prisoner
then made a statement, which was
taken down, but was not agned by
him or the magistrate. The pris-
oner, after a remand, being brought
again before the magistrate, some
questions were put to the witnesses
by the prisoner's attorney, who then
objected to the statement being
treated as the prisoner's statement,
as an addition had been made to the
evidence, and the prisoner being
then asked if he wished to make
any statement, declined doing so : —
Held, that the prisoner's statement
was admissible as evidence against
him at his trial. Heg, v. JBond, 4
New Sess. Cas. 143 ; t. & M. 242 ;
1 Den. C. C. 517 ; 3 C. & K 337 ;
14 Jur. 399 ; 19 L. J., M. C. 138 ;
4 Cox, C. C. 231.
A statement made bv a prisoner
before a magistrate, not signed
either by the magistrate or the pris-
oner, is not excluded as evidence
because the magistrate omits to in-
form him that he has nothing to
hope or to fear from either promise
or threat. lb.
Semble, that before a statement
made by a prisoner in the presence
of, and duly signed by the commit-
ting magistrate, can be received in
evidence against him, proof most
be given that he was cautioned in
the manner provided by 11 & 12
Vict. c. 42, s. 18, dehor* any dec-
laration to that effect contained in
the caption of the statement itself.
Beg. V. Higson, 2 C. & K. 769 —
Alderson.
Material evidence may be given
against a prisoner on his trial, in ad-
dition to what appears from the de-
Positions to have been given against
im before the magistrates. Meg.
V. Ward, 2 C. & K. 759 — Cress-
well.
If two are taken before a magis-
trate on a charge of felony, what
the first says in his statement before
the magistrate cannot be given in
evidence against the second, be-
cause when before the magistrate
the second is only called upon to
answer the statement in the deposi-
tions on oath, and not what an^
other prisoner may have said on his
examination. Reg. v. Swinnerton^
Car. & M. 593— Patteson.
A deposition properly taken un-
der 11 & 12 yict. c. 42, before a
magistrate, against a prisoner on a
charge of assault, is not receivaUe
in evidence against him on a trial
DEPOSITIONS.
555
for feloniously wounding, although
on hoth charges the transaction is
the same, and the witness is too ill
to attend the trial for the felony.
Reg. V. LedbeUer, 3 C. & K. 108—
Campbell and Williams.
Such a deposition is only receiv-
able in evidence where the indict-
ment is for the same identical of-
^ce as that charged before the
the justice, and upon which such de-
position was taken. lb,
A. was charged before a magis-
trate with wounding B., with intent
to do him grievous bodily harm,
and B.^s deposition was taken. B.
afterwards died of the wound, and
A. was indicted for his murder : —
Held, that on the trial for murder
the deposition might be read in evi-
dence ; as, though it was not on the
same technical charge, it was taken
m the same case, and A. had full
opportunity for cross-examination.
Jtteg, V. Beeston, Dears. C. C. 405 ;
24 L. J., M. C. 5 ; 18 Jur. 1058 ; 3
C. L. R. 82.
On an examination on a charge of
felony before a magistrate, the pris-
oner was asked if he wished to put
any question to a witness against
him. Instead of asking anything
he made a statement, which was
written down on the depositions,
but not signed by the prisoner, who
had received no caution ; — Held,
that this statement was not evidence
per se, but that any one who heard
the prisoner make it might give
evidence of it, refreshing his mem-
ory from what was thus written
down, but in such a case a prisoner
ought to be told that that was not
the proper time for him to make a
statement. Heg, v. Watson, 3 C. &
K. Ill— Patteson.
If upon the trial of a prisoner a
witness gives evidence of facts of
which no mention is made in his
deposition as taken before the com-
mitting magistrate, the clerk to the
magistrate may be called for the
purpose of stating that such facts
were stated by the witness when he
made his deposition, but were not
taken down by him, the clerk.
JReg. V. Moare, 20 L. T., N. S. 987
— ^Lush.
(b) Returning.
(11 4-12 Vict. c.i2, 8, 20. For^
mer provisions^ 7 Geo. 4, c. 64, ss. 3,
4 ; anrf 6 4- 7 WiU. 4, c. 114, s. 3.
JSg sect. 4 of tJie loiter act, " all per-
" sons under trial shall be entitled,
" at the time of their trial, to in-
" spect, without fee or reward, all
" depositions (or copies thereof)
" which have been taken against
" them, and returned into the court
" before which such trial shall be
" had.")
It is the duty of a magistrate to
return to the judge, not only the
depositions of witnesses, but also
any confession taken down as made
by the prisoner ; and it is no excuse
for not doing so, that the confession
was wanted to be sent before the
grand jury. Rex v Fallows, 5 C.
& P. 508 ; S. P., Rex v. FuOer, 7
C. & P. 269.
The rule, that the written deposi-
tion taken under 7 Geo. 4, c. 64, s.
3, was the evidence of what had
been stated by a witness before a
magistrate on a charge of misde-
meanor was not limit^ to the in-
dividual case, with the view to
which the evidence was taken down,
but extended to all subsequent pro-
ceedings, civil as well as criminal.
Leach V. Simpson, 5 M. & W. 309 ;
7D.P. C. 513; 3 Jur. 654.
The reading, on the part of the
prosecution, of the prisoner's state-
ment, returned by the magistrate
at the end of the depositions, does
not give the prisoner the right to
consider the depositions as in evi-
dence on the part of the prosecu-
tion, though it ap|)ear8 that they
were all taken before the statement
was made; but if the prisoner
wishes to have the whole or any
particular part of the depositions
556
EVIDENCR
read, he must read it as his evi-
dence. Hex V. Fearsoii^ 7 C. & P.
671 — Patteson and Williams.
A magistrate is not bound by
law to return all that is stated by
the witnesses on a charge of felony,
but only all that is material to the
case ; and though, since the act
allowing a prisoner a copy of the
depositions, they ought to contain
what was stated, that he may know
what he has to answer, there is a
difference between a witness at the
trial adding to his deposition, and
his contradicting it. Ilex v. Cove-
ney, 7 C. & P. 667— Alderson ; S.
P., Rex V. Thomas, 7 C. & P. 817
— ^Parke.
The magistrate ought to return
all that was said by the witnesses
with respect to the charge, as the
object of the legislature was to en-
able prisoners to know what they
have to answer on their trial. Rex
V. Grady, 7 C. & P. 650— Den-
man.
It was proved by the magis-
trate's clerk, that the deposition of
a prosecutor was taken before the
magistrate, in the presence of the
prisoner, who had a full opportu-
nity of cross-examining. The de-
position was taken on the same
sheet of paper with those of the
other witnesses, and at the end of
that last deposition were the words,
" sworn before me," and the mag-'
istrate's signature. The prosecutor
had died before the trial : — Held,
that, on the above facts being
proved, the deposition was reoeiv-
able on the trial, although the mag-
istrate had not put his signature to
this particular deposition. Reg, v.
Osborne, 8 C. & P. 113— Coleridge.
A., who was a witness for tne
prosecution against B. on a charge
of arson, had first been examined
by the magistrate before any spe-
cific charge was made against any
person, and his deposition taken in
writing. A. was next accused of
the offence, and his statement as a
priiBoner wad> also taken down by
the magistrate. After this, B. was
charged with the offence, and A
examined as a witness, when A.*8
statement made at that time was
taken down, B. being then com-
mitted for trial: — Held, that all
these statements of A. ought to be
returned to the judge, and not
merely the statement made when
B. was conmiitted. Rex y. Simons^
6 C. A? P. 540— Alderson.
Nothing should be returned as a
deposition unless the prisoner had
an opportunity of knowing what
was said, and an opportunity of
cross-examining the person making
the deposition. Reff, v. Arnold^ 8
C. & P. 621— Denman.
The depositions taken before the
magistrate against a prisoner can-
not be read against hun, where the
witness has died since the examina-
tion, unless the depositions in cross-
examination have been correctly
taken and returned to the oourt.
Depositions taken in cross-examin-
ation, at a subsequent time to those
in chief, and not signed by the
committing magistrates, are so ir-
regular as to prevent the whole
depositions from being read against
the prisoner; and this, although
both are proved by one of the com-
mitting magistrates to have been
accurately taken. Reg. v. -FWmce,
2 M. & Rob. 207— Alderson.
In a case affecting the life of a
party, it is very desirable that a
magi^rate who took the deposi-
tions against the prisoner with his
own hand should be called as a
witness, before the depositions are
read, to prove the correctness of
what he took down ; but it is pot
absolutely necessary, in point of
law, that he should be called, and
the depositions may be read on
proof of his handwriting. Reg. t.
Fikedey, 9 C. & P. 124— Plarke
and Bosanquet.
Where a magistrate returns with
the depositions, that a prisoner was
sworn and made a statement, tiie
statement cannot be received in
DEPOSITIONS.
557
evidence against him, although a
witness states that he was not in
&LCt swom. lb.
Where anything is found in con-
sequence of a statement made by a
pnsoner, under circumstances which
preclude its being given generally
m evidence, such part of it as re-
lates to the thing found in conse-
quence is receivable, and ought to
be proved. JReg, v. Gouldy 9 C. &
P. 364— Tindal and Parke.
It is not necessary to be clearly
shewn that statements, made by a
prisoner on his examination before
a magistrate, were reduced to writ-
ing, in order to exclude parol evi-
dence of such statements. Re(/. v.
McGovem, 5 Cox, C. C. 506.
(c) lUnesSy Deaths Insanity ^ or Ab-
sence of Witness,
(11 & 12 Vict. c. 42, s. 17.)
Where a witness is ill, and is at-
tended by a surgeon, the judge at
the trial will not receive the wit-
nesses depositions in evidence unless
J^he surgeon attends at the trial to
prove that the witness is unable to
travel ; but where a witness is per-
manentlv disabled, and is not at-
tended by a surgeon, other evi-
dence that the witness is unable to
travel may be sufficient ; but where
the witness is attended by a sur-
geon, and a person proves at the
trial that he on the 18th March
saw the witness in bed, and that he
appeared ill, the commission day
being the 21st, and the trial the
2drd, this is not sufficient proof of
the illness of the witness to render
his deposition admissible. Heg, v.
Biiey, 3 C. & K. 1 1 6— Patteson.
Depositions of a witness so ill as
to be unable to travel are admissi-
ble in evidence before the grand
jury as well as before the petty
jury., Heg. v. Clements, 2 Den. C.
C. 251 ; T. & M. 579 ; 15 Jur.
407 ; 20 L. J., M. C. 193 ; 5 Cox,
C. C. 191.
On the trial of a felony, where
the prosecutor is bed ridden, and
not likely to be able to attend the
assizes, his deposition, taken by the
committing magistrate in the pres-
ence of the prisoner, may be given
in evidence; and the deposition
may be proved by a person who
was present, without calling the
magistrate or his clerk. Jieg, v.
Wilshawy Car. & M. 145 — Colt-
man.
If a witness is actually insane at
the time of the trial of an indict-
ment for a misdemeanor, his depo-
sition taken before the committing
magistrate is receivable the same
as if the witness was dead, al-
though the insanity of the witness
may be only temporary ; but if it
appears that the witness is not in-
sane, but that the witness has been
suffisring from delirium and de-
pression of spirits in consequence of
a blow on the head, and that his
intellects are affiscted by the in-
juries he has received, and it is the
opinion of his physicians that he
will recover, then the deposition is
not receivable. Reg. v. Marshall^
Car, & M. 1 47— Coitman.
If the deposition of a witness on
charge of an indictable offence has
been regularly taken before a mag-
istrate, and at the time of the trial
such witness is dead or so ill as not
to be able to travel, the deposition
may be read as evidence against
the prisoner. So also, if it is
proveii that the witness is kept
away by the prisoner's procure-
ment, ^eg, V. Scaife, 17 Q. B.
238 ; 5 Cox, C. C. 243 ; 2 Den. C.
C. 281 ; 15 Jur. 607 ; 20 L. J., M.
C. 229.
But such deposition is not admis-
sible on the ground merely that the
Erosecutor, after using every possi-
le endeavour, cannot find the wit-
ness. lb.
If procurement of the absence is
shewn, and there are several pris-
oners, the deposition is evidence
against those only who are proved
to have procured the absence. lb.
EVIDENCE.
Before a de]H).4tion of a person
who is dead, or so ill as not to be
able to travel, can be read, it must
be proved affinnatively on the part
of the prosecution that the deposi-
tion was taken in the presence of
the accused pei*son, and that he or
his counsel or attorney had a full
opportunity of cross-examining the
witness. Reg, v. Day^ 6 Cox, C.
C. 55— Piatt.
To give the accused a full oppor-
tunity within the meaning of the
statute, the examination must be
taken, question by question, in his
presence, and in the presence of the
magistrate, and it is not sufficient
to read over the statement of the
witness, previously taken and com-
mitted to writing, in the absence of
the magistrate. lb.
The accused must also be asked
whether he has any question to put
with reference to the statement of
the individual witness. Tb,
To render the deposition of an
absent j:)erson admissible, it is not
necessary that he should be abso-
lutely unable to travel ; it is suffi-
cient if liis attendance would place
his life in jeopardy. Ih,
The deposition of a witness ab-
sent from illness, to be admissible
must be regular, and appear to
have been regularly taken upon
the face thereof, and cannot be
proved by extraneous evidence to
have been properly taken in fact.
Beg, V. MiUer, 4 Cox, C. C. 166—
Maule.
A witness, who had been ex-
amined before the committing mag-
istrate, came to the assize town
where the trial of the accused was
to take place, and into the build-
ing where the court was sitting,
but before the trial came on re-
turned to his home by the advice
of a medical man, who deposed
that in his judgment it would have
been highly dangerous for the wit-
ness to remain. While the trial
was going on, the witness was on
his way home : — Held, that the
witness was unable to ti-avel, with-
in 11 & 12 Vict. c. 42, s. 17, and
consequently that his deposition be-
fore the committing magistrate
might be read in evidence. Reg,
Y.^ Wicker, 18 Jur. 252 — Parke
and ChannelL
A witness, who liad been exam-
ined before the magistrate, came
up five miles from the country and
gave her evidence before the grand
jury. She went back at night and
returned in the momiuor for two
days, during which she was wait^
ing for the trial to come on. At
the trial, on the third day, it was
proved that she had been attacked
that morning with a bowel com-
plaint, and that when the police-
man left her residence early on that
■r
day she was unable to travel:—
Held, that her deposition was not
admissible. Reg, v. Harris, 4 Cox,
C. C. 440.
It is a question for the judge to
determine whether the proof of a
witness being so ill as not to be
able to travel, within the 11 & 12
Vict. c. 42, B. 17, is sufficient foi
the purpose of admitting his depo-
sition before the committing magis-
trate. Reg. V. Stephetiscm, L. &
C, 165; 8'* Jur., N. S. 522; 31 L
J., M. C. 147; 9 Cox, C. C. 156;
6 L. T., N. S. 334 ; S, P,, 1kg,
V. Croucher, 3 F, <fc F. 285.
Therefore, when a deposition was
admitted upon evidence that the
prosecutrix was daily expecting her
confinement and otherwise poorly,
and therefore too ill to travel, the
court declined to interfere with the
exercise of the discretion of the
judge. lb.
\\niere a witness for the prosecu-
tion is so ill as not to be able to
travel, the judge may, at his dis-
cretion, permit the deposition to be
read, or postpone the trial. Beg,
V. TaU, 2 F. & F. 553— Crortpton.
In the absence of medical evi-
dence, a deposition w^ill not be al-
lowed to be read. Reg. v. WeUoth
9 Cox, C. C. 296— Byles.
DEPOSITIONS.
559
A witness who had been exam-
ined before the magistrate, and
whose deposition was returned,
was, at the trial, said to be too
ill to give evidence, though not too
ill to be able to travel. The depo-
sition was i-ead, the court being of
opinion that the words of the stat-
ute, "so ill as not to be able to
travel," were applicable to a case
where the witness is so ill as not to
be able to travel for the purpose
of giving evidence. Reg. v. WU-
son, 8 Cox, C. C. 453 — liussell
Gurney, Recorder.
A superintendent of police, hav-
ing seen a policeman, a material
witness, in bed two days before the
trial, and stating that he appeared
ill and so weak that he could not
get out of bed : — Held, that this,
without medical evidence as to the
nature of the illness, was not suffi-
cient to admit the policeman's de-
positions. Hec/. V. WUHamSj 4 F.
& F. 515— Pigott.
If a witness has had an attack of
paralysis, and is unable to hear or
speak, or give evidence, and his
physician does not permit him to
go about, his depositions may be
read, though it would not endan-
ger his lite to travel, or to be
brought into court. Heg. v. Cock-
burn, Dears. & B. C. C. 203 ; 3
Jur., N. S. 447 ; 26 L. J., M. C.
136 ; 7 Cox, C. C. 265.
Delivery of a dead child is prima
facie evidence of illness, and the
deposition of the party is admissi-
ble. Reg. V. WUtmi, 1 F. Si F.
30^— Willes.
But depositions of an absent wit-
ness are not admissible before the
grand jury without medical evi-
dence of his illness. Reg. v. Phil-
ips, 1 F. & F. 105— Erie.
Absent Abroctd.'] — The fact that
a witness, whose deposition has been
taken before the committing mag-
istrate, is at the time of the trial
residing abroad, does not render
such deposition admissible in evi-
dence against the prisoner at the
trial, under the 11 & 12 Vict. c. 42,
8. 17. Reg, v. Austin, Dears. C. C.
612 ; 2 Jur., K S. 95 ; 25 L. J., M.
C. 48 ; 7 Cox, C. C. 55.
A witness, whose evidence had
been taken abroad by the British
consul, under 17 & 18 Vict. c. 104,
s. 270, was the captain of a British
sailing vessel, which was stated, af-
ter examination of the official rec-
ords by an officer of the Board of
Trade, never to have been in this
country. When some of the wit-
nesses left the captain, he was in
charge of the vessel at Bordeaux,
but it was not kno^^ where she was
then bound for, or whether she had
since sailed : — Held, that it was suf-
ficiently proved that the witness
was not m the United Kingdom,
and his deposition was accordingly
admitted. Reg. v. Anderson, 11
Cox, C. C. 154— Byles ; S. P., Reg.
V. Conming, 11 Cox, C. C. 134 —
Willes.
(d) ExamincUion on.
The practice of putting the depo-
sitions into the hands of a witness
on cross-examination, telling him to
read over the evidence which he
had given before the magistrates,
and then asking him whether he
adhered to his present statement,
without putting the depositions in
evidence, or giving the jury an op-
portunity of knowing their contents,-
is inex|)edient and contrary to prin-
ciple. Reg. V. Ford, 2 Den. C. C.
245 ; 3 C. & K. 113 ; T. & M. 573 ;
Xb Jur. 406 ; 20 L. J., M. C. 171.
The proper course is, to read the
deposition to him at the time, and
to cross-examine upon it, or to put
it in afterwards as evidence for the
prisoner. lb.
On the trial of a prisoner, his
counsel may ask a witness for the
prosecution whether he did not
make a certain statement whilst
under cross-examination before the
magistrates, although the deposi-
tions contain no note of such cross-
560
EVIDENCE.
cxamiiiatioD. Reg, y. GurtU^ 2 G.
& K. 763— Erie.
A witness cannot be cross-exam-
ined as to his statements made be-
fore the committing magistrate un-
til his depositions nave been read
over to him; such questions may,
however, be put by the court per-
sonally, and by the prisoner's coun-
sel, as the mouthpiece of the court,
by its permission. Beg. v. Pe«/, 2
F. & F. 21— Willes.
A witness may be asked by pris-
oner's counsel as to what he said
before the coroner, without putting
in the depositions. Reg. v. Moloney ^
9 Cox, C. C. 26— Byles.
A prosecution cannot use or refer
to the depositions without putting
them in. Reg, v. Midler, 10 Cox,
C. C. 43— Pollock and Martin.
The deposition made by a witness
was allowed to be put into his hands
to refresh his memory, and he was
then asked what he said about a
fact which he had answered before
in the negative, and answered the
question affirmatively. Reg, v.
Qutn, 3 F. & F. 818— Wightman.
There is no distinction between
depositions before a coroner and be-
fore a magistrate with reference to
the modes of cross-examination up-
on them. A witness cannot there-
fore be asked on cross-examination
as to what he said before the cor-
oner. But the deposition may be
put into the witness's hands, to
read over to himself and refresh his
memory. Reg, v. Ramet, 4 Cox,
C. C. 269— Piatt.
A witness cannot be asked on
cross-examination whether, when he
was examined before the magistrate,
he recollected such and such a par-
ticular fact. Reg v. Newton, 4 Cox,
C. C. 262— Patteson.
Where an accomplice who could
not read had made a statement be-
fore the committing magistrate, and
at the trial gave evidence falling
very short or what he said before
the magistrate, the judge allowed
his deposition to be shewn to him.
but would not allow the deposition
to be read to him by the officer of
the court, that the counsel for the
prosecution might examine upon it.
Reg, V. Beanknorey 8 C. & P. 2^0
— Gumey.
Where, on cross-examination, a
witness is asked, with permissioii
of the judge, to look at his deposi-
tion before the committing magis-
trate, and say whether he still ad-
heres to his present statement, and
it appears the witness is unable to
read, the deposition cannot be read
to the witness for the same purpose
without being put in as evidenoe.
Reg. V. MatSiews, 4 Cox, C. C. 93
—Erie.
If upon a tnal a witness makes a
statement which does not appear in
his deposition, he may be asked, on
cross-examination, without his de-
position being put in, whether he
ever made such a statement before.
Reg, V. Moir, 4 Cox, C. C. 279.
In a case of felony, in order to
prove that a witness did not stat« a
particular fact before the magis-
trate, his deposition must be put in,
and a witness cannot be ques^oned
as to what he either did or did not
state before the magistrate,' without
first allowing him to read or to have
read to him, his deposition taken
before the magistrate. Reg, v. Tay-^
lor, 8 C. & P. 726— Erskine.
Where a witness for the prosecu-
tion gives a different answer on er-
amination in chief to that which
was expected, his deposition may
be put m his hands for the purpose
of refreshing his memory, and the
question then put to him. If the
witness persists in giving the same
answer after his memory has been
so refreshed, the question may be
repeated to him from the deposition
in a leading form. Reg, v, WiU
Uams, 6 Cox, C. C. 343— Williams.
Upon the trial of an indictment
for felony, a witness for the pro^^ecu-
tion was asked by the prisoner's
counsel whether he did not make a
certain statement to the magistrate's
DEPOSITIONS.
561
clerk in answer to a qnestion put by
him in the absence ox the magistrate
and of the prisoner, whilst he (the
clerk) was writing out the deposi-
tions from the minutes of the ex-
amination and cross-examination
which had been previously taken
before the ma^trate, and put for
the purpose of making the deposi-
tions more complete. The deposi-
tions, when written, were afterwards
read over to the witnesses and in
the presence of the magistrate and
the prisoner, to whom opportunity
of cross-examining them was again
afforded, the witnesses swore that
they were true and signed them : —
Held, that even if the depositions so
takeii had, when re-sworn, the legal
character of the depositions, the pris-
oner's counsel was entitled to ask
the above question without putting
them in, and the witness was bound
to answer it. Reg. v. Christopher^
4 Cox, C. C. 76 ; 19 L. J., M. C.
103 ; 1 Den. C. C. 536.
In cross-examining a witness who
has been examiued before the mag-
istrate, although it is admissible to
ask him, referring to the depositions,
whether he has not said so-and-so,
his answer must be taken, unless the
depositions are put in to contradict
him, and it is not admissible to state
that the depositions do contradict
the witness without thus putting
them in. Reg. v. Riley, 4 F. & F.
964 — Channell.
(0) Copies.
By 11 & 12 Vict. c. 42, s. 27, " at
any time after all the examina-
tions shall have been completed,
and before the iirst day of the as-
sizes or sessions, or other first sit-
ting of the court, at which any per-
^' son admitted to bail is to be tried,
^^ such person may require, and shall
" be entitled to have of and from the
officer or person having the custo-
dy of the same, copies of the de-
positions on which he shall have
" been committed or bailed, on pay-
^^ ment of a reasonable sum for the
a
ti
'^ same, not exceeding at the rate of
"three halfpence for each folio of
" 90 words." {Svhttituted for pro^
vision contained in 6 & 7 Will. 4, c.
114, 6. 3, repealed ^ s. 34 o/* 11 &
12 Vict, c 42.)
Under 6 & 7 Will. 4, c. 114, s. 3,
persons committed to prison for re-
examination on chames of felony,
were not entitled to demand copies
of the deposition. Fletcher [Ex
parte), 1 New Sess. Cas. 40 ; ID.
& L. 896 ; 8 Jur. 269 ; 13 L. J., M.
C. 67 ; S. C. nom. Reg. v. London
(Lord Mayor), D. & M. 486*; 5 Q.
B. 555.
The right to copies does not at-
tach untu the pnsoner is held to
bail, or committed to prison for tri-
al, lb.
It is the duty of the magistrate
to complete and sign the deposi-
tions as soon as they are taken. Ih.
A party applying to the Queen's
Bench for a rule, calling upon the
justices to furnish copies of the de-
positions taken against him, must
shew a right existing at the thne of
his application to the court, as well
as at the time of the refusal by the
justices to grant the copies. Reg.
V. Herefordshire (Justices), 1 L. M.
& P, 823 ; S. C. nom. Humphry s
{Ex parte), 4 New Sess. Cas. 179 ;
15 Jur. 608 ; 17 L. J., M. C. 189 ;
— ^B. C. — Coleridge.
The 11 & 12 Vict. c. 42, s. 27,
applies only to the case of a person
committed to prison or admitted to
bail for the purpose of being tried.
lb,
, Depositions taken before a cor-
oner were within 6 & 7 Will. 4, c.
114, s. 3, which required copies of
depositions to be furnished on ap-
plication to prisoners at the rate of
charge therem provided ; and a cor-
oner who demands more is guilty of
extortion in his office. Reg, v. White,
5 Cox, C. C. 562.
A prisoner was not entitled, un-
der 6 & 7 Will. 4, c. 114, s. 3, to a
copy of his own statement returned
by the magistrate, as made before
562
EVIDElSrCE.
him, but only to a copy of the depo-
sitions of the witnesses against him.
Reg, V. Aylett, 8 C. <fc P. 669-— Lit-
tledale and Parke.
If it is shewn, that depositions
were regularly returned by the
magistrates to the proper officer,
and it is proved by the latter that
they cannot be found after diligent
search, the prisoner's coimsel may
cross-examine from copies of them,
those copies being proved to be cor-
rect bv the magistrate's clerk. JReg,
V. SheUard, 9 C. & P. 277— Patte-
son.
A. was committed for having re-
ceived stolen iron. B. was admitted
as a witness for the crown against
A. The counsel of A. applied to the
judge for a sight of the depositions
which had been returned against B.,
which was granted. Heg^ v. Wal-
ford, 8 C. & P. 767— Patteson.
A coroner's jury, on the investi-
gation of a case of homicide, re-
turned a verdict of wilful murder
against some person or persons un-
known. The coroner returned the
deposition he had taken to the Cen-
tral Criminal Court : — Held, on ap-
plication by the counsel for the pris-
oner indicted for the murder of the
same person, for a copy of such de-
positions, that, although the coroner
could not in such a case have been
compelled to return them, under 7
Geo. 4, c. 64, s. 4, yet that having
done so, the judges had power, by
their general authority as a court of
justice, to order a copy to be given
if tliey thought it material to the
interests of justice. Reg, v. Green-
acre, 8 C. <& P. 32— Littledale and
Coleridge.
8. Presumptions or Prohahilities of
Guilt
In a criminal case, the jury, in
order to convict, ouglit to be satis-
fied that by the evidence, affirma-
tively, as a conviction created in
their minds beyond all reasonable
doubt, that the guilt of the prisoner
is established ; and if there is only
an impression of probability, tbey
ought to acquit him. Reg. v. FAite,
4 F. & F. 383— Martin.
So far as the case rests on direct
testimony, the jury should, if there
are any circumstances to impeach
the credibility of the witnesses, look
carefuUv to those circumstances as
elements of doubt in the case. Ih,
A mere scintilla of evidence not
sufficient to justify a verdict ought
not to be left to the jurv. Reg. v.
Smith, L. & C. 607.
4. Accomplices,
It is not a rule of law, but of
practice only, that a jury should
not convict on the unsupported tes-
timony of an accomplice. R^g. v.
Stubbs, Dears. C. C. 555 ; 1 Jur., N.
S. 1115;25L. J., M. C. 16.
Therefore, if a jury chose to act
on such evidence only, the convic-
tion cannot be quashed as bad in
law, lb.
The better practice is for the
judge to advise the jury to acquit,
unless the testimony of the accom-
plice be corroborated, not only as to
the circumstances of the offence, but
also to the participation of the ac-
cused in the transaction ; and whew
several parties are charged, that it is
not sufficient that the accomplice
should be confirmed as to one or
more of the prisoners to justify »
conviction of those prisoners with
respect to whom there is no con-
firmation. lb.
The rule that the evidence of an
accomplice requires corroboration is
not a rule of law, but a rule of gen-
eral and usual practice ; the a]»pli-
cation of which is for the discretion
of the judge by whom the ca-se is
tried ; and in the application of the
rule much depends on the nature of
the oftence, and the extent of the
complicitv of the witness in it. Reg.
V. Boyes,^l B. & S. 311 ; 30 L J^
Q. B. 301.
One prisoner who has pleaded
guilty will not be allowed to be
called as a witness against another,
ACCOMPLICES.
563
until the judge has heard the evi-
dence necessary to corroborate that
of an accomplice. Reg, v. Sparks,
1 F. & F. 388— Hill.
An indictment charged K. and
W. with falsely pretending to B.
that they had a quantity of tobacco,
which they proposed to sell, and
did sell to him, and thereby obtain-
ed money from him. The evidence
was, that K. and P., acting to-
gether, were the chief parties by
whom the false pretences had been
made : — ^Held, that the acts of P.
were the acts of K., and admissible
against him upon the indictment.
Her/. V. Kerrigan^ L. & C. 383 ; 9
Cox, C. C. 441 ; 33 L. J., M. C. 71 ;
12 W. R. 416 ; 9 L. T., N. S. 843.
Before admitting a person as an
approver, it is the duty of the mag-
istrate to inquire into the case and
see how far such approver is mixed
up with the transaction, or to what
extent he would be criminally liable
for his acts. Though an accomplice,
who had been admitted as an ap-
prover, may give evidence, no mat-
ter how gi'eat his own criminality,
it is a wise observation that, with-
out corroboration, a jury should be
slow to convict on such evidence.
Heg. v. Dunne, 5 Cox, C. C. 507.
A prisoner ought not to be con-
victed upon the evidence of any
number of accomplices, unconfirm-
ed by other testimony. JRex v.
JVoakes, 5 C. <fc P. 326— Littledale,
Bolland, and Alderson.
Although all persons present at
and sanctioning a prize fight, where
one of the combatants is killed, are
guilty of manslaughter, as principals
m the second degree ; yet they are
not such accomplices as to require
their evidence to be confirmed, if
they are called as witnesses against
other parties charged with the man-
slaugliter. Hex v. Hargrave, 5 C.
&> P. 170 — Patteson.
An accomplice may give evi-
dence before a grand jury to sup-
port an indictment against a parti-
ceps criminis. JRex v. Dodd, 1 Leach,
C. C. 155.
An accompb'ce does not require a
confirmation as to the pei*son he
charges, if he is confirmed as to the
particulars of his story. Rex v.
BirkeU, R. & R. C. C. 251.
On an indictment against princi-
pal and accessories, the case against
the princiiml was proved by the
testimony of an accomplice, who
was confirmed as to the accessories,
but not as to the principal. The
jury was directed to acquit the
prisoners. Rex v. Wells, M. & M.
326— Littledale.
The information of a dead ac-
complice may be read in evidence
against a prisoner. Rex v. Westheer,
1 Leach, C. C. 12.
An accomplice, who is a witness
for the crown, is not entitled as a
matter of right to be exempt from
being prosecuted for other of-
fences at the same assizes, at which
he had been such witness. Rex v.
Lee, R. & R. C. C. 361 ; S, P.,
Rex V. Bhiraon, R. & R. C. C. 454.
If the testimony of an accom-
plice is confirmed so i^r as it relates
to one prisoner, but not as to an-
other, the one may be convicted on
the testimony of the accomplice, if
the jury deems him worthy of credit.
Rex V. Dawber, 3 Stark. 34, 35, n.
— Bayley.
And the con-oboration of the evi-
dence of an accomplice need not be
on every material point, but must
be so confirmed as to convince the
jury that his statement was correct
and true. Rex v. Barnard, 1 C. &
P. 88— Hullock.
A person indicted for a misde-
meanor may be legally convicted
upon the uncorroborated evidence
of an accomplice. Rex v. Jones, 2
Camp, 132— Ellenborough ; S. P.,
Rex, V. Hastings, 7 C. & P. 152—
Denman, Park, and Alderson.
There is a great diffei-ence be-
tween confirmation of an accom-
plice as to the circumstances of the
564
EVIDENCE.
felony, and those which supply to
the individual charged. The for-
mer only shew that the accomplice
was present at the commission of
the olfence, but the others shew
that the prisoner was connected
with it. Confirmation of an accom-
plice as to the commission of the
felony, is really no confirmation at
all ; and though a jury may legally
convict on the evidence of an ac-
complice only, the judges advise
them not to act on the evidence of
an accomplice, unless he is con-
firmed as to the particular person
who is charged with the offence.
Eex V. WUkea, 7 C. & P. 272 -Al-
derson.
In a case of felony the testimony
of the wife of an accomplice is not
such evidence as a jury ought to
rely upon as confirmation of the
statement of the accomplice. Hex
V. NecU, 7 C. & P. 168— Park.
On a charge of stealing two
sheep, an accomplice stating that
the prisoner himself stole them ;
and, to confirm him, evidence was
given that a quantity of mutton
was found in the house in which the
prisoner resided, which correspond-
ed with parts of the stolen sheep, is
sufficient confirmation of the ac-
complice to be left to the jury ; but,
if the confirmation had merely gone
to the extent of confirming the ac-
complice as to a matter connected
with himself only, it would not have
been sufficient. Meg. v. JSirkett, 8
C. & P. 732— Patteson.
The confirmation of an accom-
plice ought to be as to some matter
which goes to connect the prisoner
with the transaction, and it would
be highly dangerous to act on the
evidence of an accomplice uncon-
firmed with respect to the party ac-
cused. Heg. V. Dyke^ 8 C. & P.
261— Gumey ; S. P., Reg. v. Far-
Ur, 8 C. & P. 106— Abinger.
The confirmation of an accom-
plice should be as to some circum-
stance affecting the party accused,
as by shewing ^e party and accom-
plice together under 6u.ch circmn-
stances as were not likely to hare
occurred, imless there was conc^
between them. Reg. v. Farier^ 8
C. & P. 106— Abinger.
In a case of night-poaching, tiie
only confirmation was, that, on the
evening of the offence, the accom-
plice and the prisoner were drink-
ing together at a public-house, com-
monly frequented by the prisoner,
and that they both left the honse
together, wKen it was shut up for
the night. This was considered no
sufficient confirmation. Ih.
A married woman who consents
to her husband's committing an un-
natural offence with her, is an ac-
complice in the felony, and, as sach,
her evidence requires confirmation,
although consent or not consent is
quite immaterial to the offence.
Iteg. V. JeUyman^ 8 C. <fc P. 604—
Patteson.
An accomplice, who, in a case
out of the statutes, is, under the
practice allowed, admitted by the
justices of peace as a witnesEi, and
is afterwards prosecuted, has only a
claim to the mercy of the crown,
founded on an express or implied
promise of the magistrate on a con-
dition performed; and it depaids
on his conduct fully and fairly dis-
closing the joint guilt of hunself
and his companions, whether the
court will admit him to bail, that
he may apply for a pardon. Rei
V. Rudd, Cowp. 331 ; 1 Leach, C.
C. 115.
5. Oovemment Spies.
Upon an indictment for mutder,
a Serjeant in the police, after stating
in cross-examination that he attend-
ed a debating society where polit-
ical subjects were discussed, by the
direction of the commissioners of
police, for the purpose of noticing
and reporting, and that he went in
private clothes, was asked if he
went as a spy: — ^Held, that ^
question could not be put, as it re-
quired the witness to draw an infor-
COMPETENCY OF WITNESSES,
565
it
CC
u
ence from facts ; but that he might
he asked under what directions, and
for what purpose he went, and
what he did when there. Heg. v.
Bernard, 1 F. & F. 240 — Camp-
bell.
A person employed by govern-
ment to mix with conspirators, and
pretendtDg to aid their designs for
the purpose of betraying them, does
not require corroboration as an ac-
complice. JReg, V. MuUiTUy 3 Cox,
C. C, 526.
6. Competency of Witnesses,
Generally,]'^Bj 6 & 7 Vict. c.
85, a 1, "no person offered as a
witness shall be excluded by rea-
son of incapacity from crime, or
interest, from giving evidence in
" any criminal proceeding in any
" court, but every person so offered
"may and shall be admitted to
" give evidence on oath or solemn
"affirmation, where affirmation is
" by law receivable, notwithstand-
" ing such person may or shall be
" interested, and notwithstanding
" such person offered as a witness
"may nave been previously con-
" victed of crime."
By 14 & 15 Vict. c. 99, s. 3,
"nothing therein contained shall
" render any person, who in any
" criminal proceeding is charged
" with the commission of any in-
"dictable offence, or any offence
"punishable on summary convic-
" tion, competent or compellable to
" give evidence for or against him-
" self or herself, or shall render any
person compellable to answer any
question tending to criminate him-
" self or herself, or shall in any
" criminal proceeding render any
" husband competent or compel-
" lable to give evidence for or
" against his wife, or any wife com-
" petent or compellable to give evi-
" dencefor or against her husband."
By 18 & 19 Vict. c. 126, s. 22,
'* recitmg that it is expedient to
" amend the law as to witnesses in
^* cases of wilful or malicious in-
juries to property, it is enacted,
that in all cases where any justice
or justices of the peace have pow-
er to order a sum of money to be
forfeited and paid to the party
aggrieved, as amends or compen-
sation for any injury to property,
real or personal, the right of such
party to receive the money so or-
dered to be paid shall not be af-
fected by such party having been
examined as a witness in proof of
the offence."
((
cc
Witnesses for Prisoner.'] — ^By 30
& 31 Vict. c. 35, ss, 1, 2, 3, " de-
positions of witnesses for prisoner
are to be taken, and witnesses
•" bound by recognizances for pris-
" oner are to be allowed their ex-
" penses."
An information against a party,
under 1 & 2 Will. 4, c. 32, f. 23,
for unlawfully using snares for tak-
ing game, he not being authorized
so to do for want of a game certifi-
cate, is a criminal proceeding for
an offence punishable on summary
conviction within sect. 3 of the 14
& 15 Vict. c. 99, and therefore the
party charged is not rendered a
competent witness by that statute.
CatteU V. Ireson^ 4 Jur., N. S. 560
— Q. B.
Upon a proceeding under 9 Gleo.
4, c. 61, s. 21, against an alehouse
keeper, for unlawfully and know-
ingly permitting divers persons of
notoriously bad character to assem-
ble and meet together in his house
and premises against the tenure of
his licence, such alehouse-keeper is
not a competent witness, and can-
not give evidence in his own behalf.
Parker v. Green, 2 B. & S. 299; 9
Cox, C. C. 169 ; 31 L. J., M. C.
133 ; 6 L. T., K S. 46.
If two are guilty of a murder,
and one is indicted and the other
not, the party not indicted is a good
witness for the crown. Bexv. IHnck-
ler, 1 East, P. C. 854.
The persons who are supposed to
have been the seconds at a duel
566
EVIDENCE.
may refuse to give evidence on the
trial of the principals. Jiex v. JEIng-
land, 2 Leach, C. C. 767.
But their testimony may be re-
ceived as the testimony of persons
admitted witnesses for the crown.
lb.
And if once sworn, they must dis-
close the whole truth, although they
may involve themselves in the guilt
of the transaction. lb.
The competency of a witness may
be tried by examining him on the
voir dire or by evidence aliunde.
Wakefield's case, 2 Lewin, C. C. 279
— ^HuUock.
A lunatic patient, who had been
in confinement in a lunatic asylum,
and who laboured, under the de-
lusion, both at the time of the trans-
action and of the trial, that he was
possessed by 20,000 spirits, but
whom the medical witness beUeved
to be capable of giving an account
of any transaction that happened
before his eyes, and who appeared
to understand the obligation of an
oath, and to believe in future re-
wards and punishments, was called
as a witness on a trial for man-
slaughter ; — Held, that his testi-
mony was properly received in evi-
dence ; and that where a person un-
der an insane delusion is called as a
witness, it is for the judge, at the
time, to say whether he is compe-
tent to be a witness, and it is for the
jury to judge of the credit that is
to be given to his testimony. Meg.
V. HUl, 2 Den. C. C. 254 ; T. &
M. 582 ; 15 Jur. 470 ; 5 Cox, C. C.
259.
If upon his examination upon the
voir dire, he exhibits a knowledge
of the religious nature of an oatn,
it is a ground of his admission. lb.
It is the duty of the judge pre-
siding at a trial to decide as to the
competency of a witness ; and if he
has admitted a witness to give evi-
dence, but upon proof of subsequent
facts affecting the capacity bf the
witness and of observations of his
subsequent demeanour, the judge
changes his opinion as to his com-
petency, the judge may stop the
examination of tlie witness, strike
his evidence out of the notes, and
direct the jury to consider the case
exclusively with reference to the
evidence of the other witnesses.
Reg. V. Whitehead, 1 L. R., C. C.
33 ; 35 L. J., M. C. 186; 14 W.R.
677 ; 14 L, T., N. S. 489.
A. and B. being indicted for
stealing, and C. for receiving, R
pleaded guilty, and was tenderal as
witness against A. and C. He was
objected to by the counsel for the
prisoners, as inadmissible: — ^Held,
an admissible witness at common
law. Reg. v. ITinks, 1 Den. C. C.
84 ; 2 C. & K 462.
A., B., C. and D. were indicted
together. After plea, and before
they were given in charge to the
jury, the court allowed D. to be re-
moved from the dock, and exam-
ined as a witness against his asso-
ciates. Reg. V. Gerber, T. & M.
647 — Williams.
On an indictment for perjury al-
leged to have been committed at
the quarter sessions, thQ chainnan
of the quarter sessions ought not to
be called upon to give eWdence as
to what the defendant swore at the
quarter sessions. Reg. v. Gasard^ 8
C. & P. 595— Patteson.
Where two prisoners are jointly
indicted for a felony and plead not
guilty, but only one is given in
charge to the jury, the other is an
admissible witness, although his plea
of not guilty remains on the record
undisposed of. Winsor v. Reg. (in
error), 1 L. R., Q. B. 390 ; 12 Jur.,
N. S. 561 ; 35 L. J., M. C. 161 ; 14
W. R. 695 ; 14 L. T., N. S. 567 -
Exch. Cham.
A. and B. were jointly chained
in the same indictment with brok-
ing into a house and stealing goods.
A. pleaded guilty, and B. pleaded
not guilty, and was tried. A'splei
of guilty was recorded, but no on-
tence had been passed on him, K
wished to call A. as a witness for
COMPETENCY OF WITNESSES.
567
him : — Held, that he might do so.
£eg. V. George, Car. & M. Ill —
Coltman.
A prisoner who pleads guilty to
an indictment, and who has been
previously convicted of felony, is a
competent witness against other
Srisoners charged in the same in-
ictment. Jteg, v. JDrury, 3 C. &
K. 190— Rolfe ; S. P., Reg. v. Arun-
del, 4 Cox, C. C. 260— Patteson.
A convict under sentence of death
16 incapable of being called as a
witness. Reg, v. WM^ll Cox, C.
C. 133— Lush.
Two females being jointly indict-
ed at the assizes for felony, the jury,
not agreeing, was discharged by the
judge from giving a verdict. At a
subsequent assize, one was again put
on her trial, and the other admitted
to give evidence, without having
withdrawn her plea of not guilty,
and a nolle prosequi not having
been entered : — Held, that she was
a competent witness. Wirisor v.
Reg. (in error), 7 B. & S. 490—
Exch. Cham.
Husband and Wife.'] — By 14 &
15 Vict. c. 99, s. 3, " nothing there-
" in contained shall in any criminal
" proceeding rendeiv any husband
" competent or compellable to give
" evidence for or against his wife,
" or any wife competent or com-
" pellable to give evidence for or
" against her husband."
By 16 & 17 Vict. c. 83, s. 2,
" nothing therein contained shall
" render any husband competent or
" compellable to give evidence for
or against his wife, or any wife
competent or compellable to give
evidence for or against her hus-
" band, in any criminal proceeding,
" or in any proceeding instituted in
" consequence of adultery."
By 8. 3, " no husband shall be
" compellable to disclose any com-
" mnnication made to him by his
« wife during the marriage, and no
'' wife shall be compellable to dis-
'' dose any commumcation made to
u
u
" her by her husband during the
" marriage."
Li all cases of personal injuries
committed by the husband or wife
against each other, the injured party
is an admissible witness against the
other. Rex v. Jagger^ 1 East, P.
C. 455— BuUer; S. P., Reg. v.
Pearce, 9 C. & P. 667.
On an indictment for larceny the
wife of a receiver who is not indict-
ed cannot be compelled to give her
evidence against the prisoner. Rex
V. Asty Car. C. L. 66 — ^Macdonald
and Jjawrence.
On an indictment against the
wife of W. S. and others, for a con-
spiracy in procuring W. S. to marry,
W. S. is not a competent witness
for the prosecution. Rex v. Serjeant^
R. & M. 352— Abbott.
The wife of one of several prison-
ers is inadmissible as a witness.
Rex V. Hood, 1 M. C. C. 281 ; S. P.,
Rex V. Smith, Ih. 289.
Even to prove an alibi by the
other. Reg. v. Denslovp, 2 Cox, C.
C. 230— Cresswell &, Williams.
A. and B. were indicted for burg-
lar)' and stealing. A part of the
stolen property was found in the
house of each of them : — Held, that
the wife of A. was a competent wit-
ness to prove that she took to B.'s
house the stolen property that was
found there. Reg. v. SiUs, 1 C. &
K. 494— Tindal.
A wife is not a competent witness
against her husband, charged under
the Vagrant Act (5 Geo. 4, c. 83,
s. 3), with neglecting to maij^tain
her, whereby she became chargeable
to the parish. Reeve v. Wood, 5 B.
& S. 364 ; 11 Jur., N. S. 201 ; 34
L. J., M. C. 15.
A reputed first wife cannot give
evidence in favour of her supposed
first husband. PecU'^scase, 2 Lewin,
C. C. Ill— Alderson.
One of two prisoners had married
his deceased wife's sister: — Held,
that she was a competent witness
against him upon his triaL Reg, v.
Young, 5 Cox, C. C. 296— Erie.
568
EVTOENCE.
A witness for the prosecution
was examined on the part of the
prisoners on the voir dire, and de-
posed that she was married to one
of them : — ^Held, that she might be
further examined on the voir dire,
on the part of the prosecution, to
Erove that the same prisoner had
een previously married to her sis-
ter. The witness stated, on such
further examination, that she and
her sister, who was seven years old-
er than herself, had always lived to-
gether with their parents, and that
she always beUeved her to be her
sister : — Held, sufficient proof of the
relationship. lb.
The prisoner was indicted for ob-
taining money from the trustees of
a savings bank, by falsely pretend-
ing that a document produced by
the wife of D. had been filled up by
D.'s authority ; and in another count
for conspiring with the wife of D. to
cheat the bank. D.'s wife presented
the document, which, had been
fraudulently filled up at the instance
of the prisoner, and obtained the
money, and afterwards eloped with
the prisoner. D.'s evidence was
necessary to shew that he had given
no authority, but it was objected to
on the ground that it implicated his
wife :--Held, that D.'s evidence
was admissible, as the wife was not
charged upon the indictment. Meg,
V. HcdUday, 8 Cox, C. C. 298.
7. Compelling Attendance,
Where a witness was subpoenaed
by a defendant indicted for a con-
spiracy, and before he was examined
requested to have his expenses paid,
and stated that no money was paid
to him at the time he was served,
he was obliged to give evidence, al-
though the defendant refused to
pay such expenses, and although
the indictment was removed by cer-
tiorari, and came down for trial at
the assizes as a civil record. Mex
V. Cooke, 1 C. & P. 322— Park.
A subpoena may be issued from
the crown office, requiring a witness
to attend at the assizes in the
country, to give evidence in support
of an intended prosecution for a fel-
ony; and the court will grant an
attachment against him for not at- ,
tending in obedience to the sab-
poena. Rex v. Ring, 8 T. R 585.
In a criminal case, a person, who
is present in court, when called as a
witness, is bound to be sworn and
to give his evidence, although he
has not been subpoenaed. Mex v.
Sadler, 4 C. & P. 218— liUledale:
S, P., EUxchbum v. Htxrgreagoe, 2
Lewin, C. C. 259— Hulloct
8. Stoearing,
By 24 & 25 Vict. c. 66, " reciting
that it is expedient to grant relief
to persons who may refuse or be
unwilling, from alleged consden-
tious motives to be sworn in crim-
inal proceedings, it is enacted, if
any person called as a witness in
any court of criminal jurisdictioii
in England or Ireland, or required
or desiring to make an affidavit
or deposition in the course of any
criminal proceeding, shall refuse
or be unwilling, from allied con-
scientious motives, to be sworn, it
shall be lawful for the court or
judge, or other presiding officer
or person qualified, to take affi-
davits or depositions, upon being
satisfied of the sinceritv of sacn
objections, to permit such person,
instead of being sworn, to make
his or her solemn affirmation or
declaration in the words follow-
ing, that is to say : " I, A. B., do
solemnly, sincerely, and truly af-
firm and declare, that the taking
of any oath is according to my
religious belief unlawful, and I do
also solemnly, sincerely, and trnlv
affinn and declare," &c., which
solemn affirmation and declaration
shall be of the same force and ef-
fect as if such person had taken
an oath in the usual form."
And by s. 2, " if the declaration
or affirmation is false, the party
making same is liable to the pen-
ce
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SWEARING.
569
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" allies and punishment of perjury."
By 32 & 33 Vict. c. 68, s. 4, " if
" any person called to give evidence
" in any court of justice, whether in
"a civil or criminal proceeding,
''shall object to take an oath, or
'' shall be objected to as incompe-
" tent to take an oath, such person
" shall, if the presiding judge is sat-
'* isfied that the taking of an oath
" would have no binding effect on
'' his conscience, making the follow-
''ing promise and declaration:
" ' I solemnly promise and declare
that the evidence given by me to
'' ' the court shall be the truth, the
^ ' whole truth, and nothing but the
«* truth':
"And any person who, having
" made such promise and declara-
** tion, shall wilfully and corruptly
" give false evidence, shall be Uable
" to be indicted, tried and convicted
" for peijury as if he had taken an
" oath."
A witness cannot be sworn to
give evidence unless he has a reli-
f'ous belief. Maden v. Catanach^
H. & N. 360 ; 31 L. J., Exch.
118 ; 7 Jur., N. S. 1107; 10 W. R.
112; 5 L. T., N. S. 288.
No one can give evidence in a
court of justice without being sworn,
miless he belongs to one of the
classes for whom special provision
has been made by the legislature.
lb.
A Scotch covenanter may give
evidence in a' criminal prosecution,
on being sworn accor£ng to the
custom of his sect, without kissing
the book. Attldrone^s caae^ 1 Leach,
C. C. 412.
So a Mahometan may be sworn
on the Alcoran in a prosecution for
a capital offence. Mex v. Morgan^
1 Leach, C. C. 54.
A person who has no notion of
eternity, or of a future state of re-
wards and punishments, cannot be
examined as a witness, but the trial
may be postponed until the witness
18 instructed in the nature of this
Eisn. Dig.— 48.
obligation. jBese v. Whtte, 1 Leach,
C. C. 480.
An infant cannot, under any cir-
cumstances, be admitted to give ev-
idence, except upon oath. JRex v.
PoweU, 1 Leach, C. C. 110.
A witness, though deaf and dumb,
may be sworn and give evidence on
an indictment for felony, if intelli-
gence can be conveyed to, and re-
ceived by him, by means of signs
and tokens. Rtuton^s case, 1 Leach,
C. C. 408 ; S. P., Sex v. Janes, 1
Leach, C. C. 452, n.
Where a bill for rape on a child
under the age of ten has been ig-
nored by the grand jury, in conse-
quence of the judge renising to al-
low the child to be sworn as a wit-
ness, on the ground of her want of
knowledge of the obligation of an
oath, the prisoner was ordered to be
detained in custody until the child
could be properly instructed. jReg.
V. BayUs, 4 Cox, C. C. 23— Erie.
If on an indictment for felon]^,
after the jury has delivered a ver-
dict of guilty, it is discovered that
one of tibe witnesses for the prosecu-
tion has given his evidence without
having been previously sworn ; the
proper course to pursue is to direct
the jury to reconsider the case, dis-
missing from their minds the evi-
dence of that particular witness.
Heg. V. James, 6 Cox, C. C. 5.
Witnesses are sworn by the court
through the instrumentahty of some
of its officers, and it is not material
whether the oath is administered by
the crier or clerk of the peace, so
that it is done in open court. lieg,
V. Tew, Dears. C. C. 429 ; 24 L. J.,
M. C. 62.
Mode of swearing Chinese wit-
nesses. Heg, V. Entrehman, Car. &
M. 248— Gumey.
A Chinese, who is sworn accord-
ing to a form which is obligatory
upon his conscience, is a good wit-
ness in a court of law. lo,
A n^ro, who was called as a
witness, stated, before he was sworn.
570
EVIDENCE.
that he was a Christian, and had
been baptized: — ^Held, that he
ought to be sworn, and that no fur-
ther question could be asked him
before he was so. Reg, v. Serva^ 2
C. & K. 53— Piatt.
9. Ordering to leave (hurt.
Where a witness for a prosecution
remains in court after an order for
the witnesses to withdraw, the judge
may still allow him to be examined,
subject to observations on his con-
duct for disobeying the order. Rex
V. CoUey, M. & M. 329— littledale
and Gaselee.
It is almost a matter of right for
a party to have a witness go out of
court while a legal argument is go-
ing on as to his evidence. Reg, v.
Mtrpky, 8 C. & P. 297— Coleridge.
The witnesses had been ordered
out of court, but the attorney re-
mained in court: — ^Held, that he
could not be examined as a witness.
Jiex V. Webb, 3 Stark. L. of Ev.
1783— Best. •
On a trial for arson, a witness for
the prisoner had left the court, on
an order being given for the witness-
es to go out of court : but he had
afterwards come into court again,
and heard a part of the evidence :
he was allowed to be examined.
Rex V. Brovm^ 4 C. & P. 588, n. —
Patteson.
But on the trial of an indictment
for perjury, all the witnesses were or-
dered out of court. After this or-
der a witness for the prosecution re-
mained in court : the judge would
not allow him to be examined. Rex
V. Wylde, 6 C. & P. 380-.Park.
10. Names on hack of Indictment,
Counsel for the prosecution is
bound to call all the witnesses on
the back of an indictment. He may
use his own discretion, but must
have the witnesses in attendance.
If the prisoner wishes to have a
witness called, when not called for
the prosecution, the witness becomes
his witness, and the counsel for the
prosecution will have the right to
reply. Reg, v. Camdy^ 1 F. & F.
79— Parke; S. P., Reg, v. Wood^
head, 2 C. & K 520— Alderson.
Where there are witnesses on the
back of the indictment who have
not been called, the prisoner may
infflst on their being put into the box
as the witnesses for the crown, in
«order that they may be cios&«xam-
ined in his behalf. Reg, v. Barley^
2 Cox, C. C. 191— Pollock.
The court has no power to oblige
a prosecutor to give to a defendant
the additions and places of readenoe
of witnesses named on the back of
an indictment. Reg, v. Gordon^ 2
D., N. S. 417 ; 6 Jut. 996 ; 12 L. J.,
M. C. 84— B. C.—Patteson.
A prisoner indicted for felony is
not entitled to a list of the names
and addresses of the witnesses on
the back of the indictment, but he
will be allowed to inspect the in-
dictment for the purpose of sedng
the names of such witnesses. Reg.
V. Laceyy 3 Cox, C. C. 517.
It is, in general, a matter entirely
within the discretion of counsel for
the prosecution, whether all Uie wit-
nesses at the back of the bill sJiooid
be called on behalf of the crown or
not; and although the jud^e has
the power to interfere, he wifi only
exercise it in extreme cases. Reg.
V. Edwards, 3 Cox, C. C. 82— Erie.
Although the counsel in a prose-
cution for felony is not bound to call
every witness whose name is on tike
back of the indictment ; yet the
judge may do so, to allow tiie pris-
oner's counsel an opportunity of
cross-examining them. Rex, v.
Simmonds, 1 CT & P. 84— Hullock.
If counsel for the prosecution
calls a witness whose name is on
the back of the indictment, but does
not examine him, and such witness
is examined by the prisoner's coon-
sel, any question put bv the prose-
cutor's counsel alter tnis must be
considered as a re-examinatioD, and
therefore the prosecutor's coimsel
cannot ask anything that does not
EXAMINING WITNESSES.
571
arise out of the pi'evious examina-
tion by the prisoner's counsel. Bex
V. Beezdy, 4 C. i$5 P. 220— Little-
dale.
Though the counsel for the prose-
cution may content himself with
putting into the box a witness whose
name is on the back of the bill, with-
out asking him any questions on the
part of the prosecution ; yet it is
better that he should be examined,
whether his evidence is favourable
to the prosecution or not, as the
only object to the investigation is
to discover the truth. Reg, v BfuJH^
9 C. & P. 22— Vaughan and Wil-
liams.
If the counsel for the prosecution
declines calling a witness whose
name is on the back of the indict-
ment, it is in the discretion of the
judge who tries the case, whether
the witness shall or shall not be call-
ed, for the prisoner's counsel to ex-
amine him before the prisoner is
called on for his defence. Rex v.
Bodle, 6 C. & P. 186— Gaselee.
If the witness is so called, the
judge will allow the examination of
the witness to assume the shape of
a cross-examination, but will not al-
low the prisoner's counsel to call
any witnesses to contradict him. Ih,
The calling of a witness, whose
name is on the back of the indict-
ment for the other side, to cross-ex-
amine him, is. by no means of course.
It is discretionary, even in felony,
but it is a discretion always exercis-
ed. Reg, V. Vincent, 9 C. & P. 91
— ^Alderson.
Where an indictment is tried at
nisi prius, the nisi prius record does
not shew what names were on the
back of the indictment. Rex v.
Smyth, 5 C. <fc P. 201— Tenterden.
11. Declarations in Artictdo Mortis,
See page 375.
12. Examining and Oross-examining
Witnesses.
Examining,'] — A witness for the
crown cannot, in cross-examination,
be compelled to state through what
channel he made a disclosure to
goveiTunent, either inmiediately or
mediately. Waison^s case, 2 Stark.
116.
A witness for the prosecution in
felony may be asked m cross-exam-
ination whether he has not stated
certain facts before the grand jury,
and the witness is bound to answer
that question. Reg, v. Gibson, Car.
& M. 672— Parke.
If a prisoner's counsel elicits, by
his cross-examination of the witness-
es for the prosecution, a statement
that the prisoner has borne a good
character, evidence may be given
of a previous conviction, just the
same as if witnesses to character
had been called on his behalf. Reg.
V. Gadhury, 8 C. & P. 676r-Parke.
Where one prisoner calls a wit-
ness who gives evidence tending to
criminate another prisoner, the coim-
sel of the latter has a right to
cross-examine the witness, and ad-
dress the jury on his evidence. Reg,
V. Liick or Burdett, Dears. C. C.
431 ; 3 C. L. R. 440 ; 1 Jur., N. S.
119 ; 24 L. J., M. C. 63.
L., B. & C. were indicted for lar-
ceny, and were defended by sepa-
rate counsel. At the close of the
case for the prosecution C. was ac-
quitted by direction of the court,
and ly^as afterwards called by L. as
his witness. C.'s evidence tended
to criminate B. : — Held, that B.'s
counsel was entitled to cross-exam-
ine the witness C, and reply upon
his evidence. Ih,
Contradicting, 1 — The sole witness
to the commission of an offence hav-,
ing sworn that she did not know
the prisoner at the time, evidence
was admitted for the defence that
she had in fact known him for years.
Reg. V. Dennis, 3 F. & F. 502—
Byles.
Discrediting Character of Adverse
Witness.y-Bj 28 & 29 Vict. c. 18,
s. 3, '^ in all criminal cases a party
572
EVIDENCE.
^'producing a witness shall not be
" allowed to impeach his credit by
" general evidence of bad character ;
" but he may, in case the witness
" shall, in the opinion of the judge,
" prove adverse, contradict him by
" other evidence, or, by leave of the
"judge, prove that he has made at
" other times a statement inoonsist-
" ent with his present testimony ;
"but before such last-mentioned
" proof can be given, the circum-
" stances of the supposed statement,
" sufficient to designate the particu-
" lar occasion, must be mentioned
"to the witness, and he must be
" asked whether or not he has made
" such statement. "
Oross-easamimng as to previous
OofUradtctort/ Statements of Adverse
Witness.]— By 28 A 29 Vict. c.
18, s. 4, " if a witness, upon cross-
" examination as to a former state-
" ment made by him relative to the
" subject-matter of the indictment
" or proceeding, and inconsistent
" with his present testimony, does
"not distinctly admit that he has
" made such statement, proof may
" be given that he did in fact make
" it ; out 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 statement. "
And by s. 5, "a witness may be
" cross-examined as to previous
" statements made by him in writ-
" ing, or reduced into writing, rela-
" tive to the subject-matter of the
." indictment or proceeding, without
" such writing being shewn to him ;
** but if it is mtended to contradict
" such witness by the writing, his
" attention must, before such con-
" tradictory proof can be given, be
" called to those parts of the writ-
" ing which are to be used for the
" purpose of so contradicting him :
" provided always, that it shall be
" competent for the judge, at any
" time during the trial, to require
" the production of the writing for
" his inspection, and he may tiiere-
" upon make such use of it for tiie
" purposes of the trial as he may
" think fit. "
GaJUng Witnesses nftieT CUm of
Gase^ — After the cases for the pros-
ecution and prisoner are closed, the
judge will not, at the snggestton <tf
the counsel for the prosecution, ex-
amine a witness not before called.
Reg. V. Haifnes, 1 F. & F. 666—
Bramwell.
Impeachment of Credit of Witness^
esJ] — In order to impeach the cred-
it of witnesses for tJie prosecution,
the prisoner may call witnesses to
prove that, from their knowledge
of the general reputation of the wit-
nesses for the prosecution, they
would not believe them upon their
oaths. Reg, v. J3h>«7w, 36 jL. J., M.
C. 59; 1 L. R, C. C. 70 ; 16L.T.,
K S. 364 ; 15 W. R. 795 ; 10 Cox,
C. C. 453.
13. Declining to answer.
If a witness claims the protection
of the court, on the ground that his
answer would tend to criminate him-
self, and there appears reasonable
ground to believe that it would do
so, he is not compellable to answer;
and if obliged to answer notwitii-
standing, what he says must be con-
sidered to have been obtained by
compulsion, and cannot be given af-
terwards in evidence a^inst him.
Reg V. GcgrheU, 2 C. & K. 474; 1
Den. C. C. 286 ; 2 Cox, C. C. 448.
It makes no difference in the
right of the witness to protection,
that he had before answered in part,
as he is entitled to claim the privi-
lege at any stage of the inquiry ;
and no answer forced from him by
the presiding judge (after such a
claim) can hQ afterwards given in
evidence against him. Ih.
A witness is not only not bonnd
to answer that which will criminate
EVIDENCE OF CHARACTER.
578
him, but he is not bound tx) answer
anything that tends to criminate
him. In a prosecution for libel, a
witness is not bound to answer
whether he has written a particular
paragraph in a newspaper, but he
must answer whether he knew
whose writing it was, but he is not
bound to name the person whose
writing he knew it to bie. Jiex v.
Skmet/, 5 C. & P. 213— Tenterden.
A Roman Catholic priest, called
as a witness, is bound to answer
the question from whom he received
the property (a watch), alleged to
be stolen, although delivered to him
by a party in connexion with the con-
fessional. jReg. V. Hay, 2 F. A F.
4— Hill.
If a witness objects to answer
questions on the gi*ound that they
tend to criminate him, the counsel
on the opposite side cannot argue
in support of the witness's objection.
Hex V. Adetf, 1 M. i& Rob. 94.
On the trial of an information
for bribery at a parliamentary elec-
tion, filed by the attorney-general,
in pursuance of a resolution of the
House of Commons, a person, alleg-
ed in the indictment to have been
bribed, was called as a witness ; he
refused to answer any question, on
the ground that the answer would
tend to criminate him. A pardon
under the great seal was then hand-
ed to the witness, but he still refus-
ed to answer, upon which the judge
compelled him to answer, and on
his evidence the defendant was con-
victed:— ^Held, that the pardon
took away the privilege of the wit-
ness so far as any risk of prosecu-
tion at^ the suit of the crown was
concerned; and that, though the
witness might still be liable to an
impeachment by the House of Com-
mons, notwithstanding the pardon,
by reason of the 12 & 13 Will. 3, c.
2, yet that was so unlikely to hap-
pen that the witness could not be
said to be in any real danger, and
he was therefore rightly compelled
to answer. Heg, v. Boyes^ 1 B. & S.
311 ; 9 Cox, C. C. 82 ; 30 L. J.,
Q. B. 301 ; 7 Jur., N. S. 1158 ; 2
F. & F. 157 ; 9 W. R. 690 ; 5 L.
T., N. S. 147.
To entitle a witness to the privi-
lege 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 evi-
dence which the witness is called to
give, that there is reasonable ground
to apprehend danger to the witness
from his being compelled to answer.
If the fact of the witness being in
danger is once made to appear,
freat latitude should be allowed to
im in judging of the effect of any
particular question. The danger to
be apprehended must be real and ap-
Sreciable, with reference to the or-
inary operation of law, in the ordi-
nary course of things, and not a dan^
^er of an imaginary character, hav-
ing reference to some barely possi-
ble contingency. Ih,
14. Evidence of Character,
If evidence of good character is
riven on behalf of a prisoner, evi-
dence of bad character may be giv-
en in reply. Meg, v. Hotdon, L. &
C. 520 ; 10 Cox, C. C. 25 ; 11 Jur.,
N. S. 325 ; 34 L. J., M. C. 57 ; 13
W. R. 436 ; 11 L. T., N. S. 745.
In either case the evidence must
be confined to the prisoner's general
reputation ; and the individual opin-
ion of the witness as to his disposi-
tion founded upon his own experi-
ence and observation, is inadmissi-
ble, lb.
Evidence of particular fisicts can-
not be given upon the question of
character. lb.
Evidence of character must be
evidence of general reputation only,
and a witness's individual opinion
respecting the character and dispo-
sition of the prisoner, with reference
to the charge, is inadmissible. lb,
A man was indicted for an inde-
cent assault, and upon the trial call-
ed witnesses, who gave him a good
character as a moral and well-con-
574
EVIDENCE.
ducted man. A witness was then
called by the prosecution, who was
asked " What is the prisoner's gen-
eral character for decency and mo-
rality ? " and in answer said, " I
know nothing of the neighbourhood's
opinion, because I was only a boy at
school when I knew him ; but my
opinion, and the opinion of my
brothers, who were also pupils of
his, is, that his character is that of a
man capable of the grossest inde-
cency and the most flagrant immo-
rality " : — Held, that the answer
was not admissible in evidence. Ih.
Upon an indictment for assault-
ing a peace officer in the execution
of his duty, where the assault was
committed by the prisoner in resist-
ing his arrest by the officer on a
charge of felony, the officer cannot,
upon his examination in chief, be
questioned as to his knowledge of
tne prisoner's character for the pur-
pose of shewing that he had reason-
able cause to suspect the prisoner of
having committed felony for which
he was arrested. Reg, v. Thberfidd,
L. & C. 495 ; 10 Cox, C. C. 1 ; 34
L. J., M.C.20; 10 Jur.,KS.llll ;
13 W. R. 102 ; 11 L. T., N. S. 385.
The proper course under such cir-
cumstances is, to ask the officer gen-
erally whether he had reason to sus-
pect the prisoner, leaving the prison-
er's counsel to inquire into the
grounds of suspicion, if he thinks
fit to do so. Tb,
In order to impeach the charac-
ter of a witness for veracity, wit-
nesses may be called to prove that
his general reputation is such that
they would not believe liim upon
oath. Reg. v. Brown^ 1 L. R., C.
C. 70 ; 86 L. J., M. C. 5 ; 10 Cox,
C. C. 453.
It is not essential that witnesses,
who state that they would not be-
lieve another person on his oath,
sliould have ever heard such person
give evidence upon oath; as the
real question is, whether the witness-
es have such a knowledge of the
person's character and conduct as
enables them conscientiously to say
that it is impossible to place any re-
liance on any statement that such
person may make. Rex v. Biwkam^
4 C. & P. 392— Garrow and Parke.
It is not usual to cross-examine
witnesses to character except the
counsel cross-examining has some
distinct charge on which to cross-
examine them. Rex v. JSbdgHss, 7
C. & P. 298— Alderson.
In general, 'witnesses to character
cannot be examined after verdict
and before sentence, where the de-
fendant might have examined them
upon the trial. Reg. v. MuUins^ 8
Cox, C. C. 526.
15. Evidence of Identity.
A witness, called to prove that
he had seen a prisoner at a particu-
lar spot at a ceilain time, added
that he had since seen a number of
men in gaol, and had pointed out
one : — ^Held, that the following was
a proper form of question to put to
the witness — " Who did you point
him out as being ? " Reg. v. Mack-
hum, 6 Cox, C. C. 333— Talfourd.
A person indicted with otiiers
for an offence, but against whom
the bill has been thrown out, may,
if he is in custody at the time of the
trial of the others, be placed at the
bar to be identified as one who was
in their company. Rex v. Deeringy
5 C. & P. 165— Garrow.
It becoming necessar}% on the
part of the crown, to identify three
other prisoners, charged in the same
indictment with the party tried,
held, that the counsel K)r the pros-
eeution might ask in the most di-
red terms whether any of ^he pris-
oners was the person meant by the
witness. Walson^s ccue, 2 Stark.
116.
16. Privileged Communications.
A prisoner was in custody on a
charge of forgery, and was not al-
lowed even to see hiis wife; he
wrote to a friend " to ask Mr. G.,
or some other solicitor, whether the
PRIVILEGED COMMUNICATIONS.
575
ponishment was the same whether
the names forged were those of real
or fictitious persons. " Mr. G. was
not the prisoner's attorney, though
he was an attorney : — Held, that
this was not a privileged communi-
cation. Bex V. Brewer J 6 C. & P.
863--Park.
H., who was tried for forging the
will of S. J., had sent the forged
will to his attorney, Mr. M., with
some deeds of S. J., ostensibly for
the purpose of asking his advice,
but really that he might find the
will and act on it. It was after-
wards produced by Mr. M. before
the magistrates, when H. was
charged before them of forging
it. At the trial of H. for the forg-
ery Mr. M. was called to produce
the will, which he did, without any
objection being taken. The officer
of the court was proceeding to read
it, when the prisoner's counsel ob-
jected to the reading of it, as being
privileged in the hands of Mr. M.
The judge directed it to be read in
evidence : — ^Held, that it was prop-
erly so read, it not having been put
into the hands of Mr. M. in pro-
fessional confidence, even if that
would have made a difference.
Seg. V. Hayward, 2 C. & K. 234 ;
2 Cox, C. C. 23— C. C. R.
The wife of A. went to B., an
attorney, and produced a forged
will to him, ana asked him to ad-
vance money to A. on the property
mentioned in it. 6. was not then
the attorney of A., or in any way
acting as his solicitor. A.'s wife
left 5ie forged will with B., who
made a copy of it. A. afterwards
called on B., who told all that had
occurred and returned him the
forged will, d^lining to advance
any money: — Held, that the con-
versation between A.'s wife and B.
was not a privileged communica-
tion; and that on the trial of A.
for forgery, evidence might be giv-
en of it ; and also, that the copv of
the forged will made by B. might
be given in evidence, notice having
been given to A. to produce the
original. Rtg, v. Farley^ 2 C. &
K. 318 ; 1 Den. C. C. 197 ; 2 Cox,
C. C. 82.
Indictment for forging the will
of W. T., first, with intent to de-
fraud the heir-at-law of the said
W. T. ; second, with intent to de-
fraud some person or persons un-
known. Quaere, whether (under
the circumstances) a valid objec-
tion could be taken to the will
being produced in evidence by an
attorney, at the trial, on the ground
of its being privileged communica-
tion ? Reg, V. TyVney^ 1 Den. C.
C. 819 ; 18 L. J., M. C. 38.
A prisoner was indicted for forg-
ing a will. The forged instrument
had been given by the prisoner to
his attorney, ostensibly for profes-
sional purposes, but, in the opinion
of the judge, with some very dif-
ferent object. On objection that
it was a privileged communication,
and therefore could not be read : —
Held, invalid. Reg, v. Jones^ 1
Den. C. C. 166.
The real prosecutor had commu-
nications with her attorney in i-efer-
ence to certain dealings with the
prisoner. The attorney was called
as a witness for the prosecution : —
Held, that letters written by the
client to her attorney could not be
§ut in by the prisoner's counsel.
leg, V. Leverson^ 11 Cox, C. C.
152.
Held, that the prosecutrix and
her attorney might be cross-exam-
ined in reference to any privileged
communications as to which they
had given answere to questions ad-
dressed to them by the counsel for
the prosecution, but not in respect
to such matters about which the
attorney had volunteered informa-
tion unasked. lb.
Held, also, that matters which
transpired during interviews at
which the prisoner was present
were not privileged. Ih.
576
EVIDENCE.
Mode of taking Evidence of Wit-
nesses at Trial] — A prisoner for
felony was tried, but the jury was
discharged, owing to being unable
to agree. On being put on trial be-
fore a second jury, the judge, at
the prisoner's request, instead of
having the witnesses examined,
simply called and swore them, and
read over his notes, allowing liberty
to examine and cross-examine each
witness thereafter : — ^Held, that this
was an irregular practice, whether
the prisoner assented to it or not.
Meg. V. BeHrand, 16 L. T., N. S.
752 ; 1 L. R., P. C. 520 ; 86 L. J.,
P. C. 51 ; 16 W. R. 9 ; 10 Cox, C.
C. 618.
17. Evidence of other similar Of-
fences,
It cannot be shewn on the trial
of an indictment that the prisoner
has a general disposition to commit
the same kind of offence as that
charged against him ; therefore an
admission by the prisoner, charged
with an infamous crime, that he
had committed the same offence at
another time, and with another
person, and that he had a tendency
to such practices, was rejected.
Rex V. Cole, Phil. Evid. 170.
But it is no objection to evidence
on an indictment for felony, that it
also goes to shew the prisoner
guilty of another felony. Rex v.
Moore, 2 C. & P. 235 — Burrough.
In answer to an alibi set up on a
trial for felony, the prosecutor may
shew the circumstances under which
the prisoner was seen near the spot
in question; though those circum-
stances involve the commisdon of
another felony by him. Reg. v.
Briggs, 2 M. & Rob. 199 —Alder-
son.
Where several felonies are so
connected together as to form part
of one entire transaction, evidence
of them all may be given in order
to prove a party indicted guilty of
one. Rex v. EUis, 6 B. & C. 145 ;
9 D, & R. 174.
Upon a trial for felony, other
felonies, which have a t^idency to
establish the scienter, may be given
in evidence for that purpose. Reg^
V. Weeks, L. & C. 18.
On an indictment for arson m
setting fire to a rick, the property
of A., evidence may be given of
the prisoner's presence and demean-
our at fires of other ricks, the prop-
erty respectively of B. and C, oc-
curring the same night, although
those hres are the subject d^ other
indictments against Uie prisoner,
such evidence being important to
explain his movements and general
conduct before and after the fire of
A.'6 rick ; but evidence is not ad-
missible of threats, statements or
particular acts pointing alone to
the other indictments, and not
tending to implicate or explain the
conduct of the prisoner m refer-
ence to that fire. Reg. v. Ta%^or,
5 Cox, C. C. 138— Patteson.
Evidence of another felony is ad-
missible to shew the animus of the
prisoner, or if the act done was
wilful or accidental. A. was in-
dicted for setting fire to a rick on
the 29th of March by dischai^g
a gun close to it. Evidence was
admitted of his having been seen
near the same rick wim a gun on
the 28th, when it had been also set
on fire. Reg. v. JDosset, 2 Cox, C.
C. 243~Maule.
Upon a trial for breaking into a
booking-office of a railway station,
evidence was admitted that the
Prisoners had, on the same night,
roken into three Other bookmg-
offices belonging to three other sta-
tions on the same railway, the four
cases being all mixed up together.
Reg. V. Oobden, 3 F. ifc F. 833—
Bramwell. See Reg. v. Rearden^
4 F. & F. 76— Willes.
18. Previous Conviction.
(24 d 25 Vict. c. 96, s. 116 ; 24 d
25 Vict. c. 99, s. 37.)
Before these StaMes, — C., with
PREVIOUS CONVICTION.
577
others, was charged in the first
coant of an indictment with lar-
ceny from the person. The indict-
ment contained two other counts,
each charging a previous convic-
tion against C.: — Held, that any
number of previous convictions may
be allied in the same indictment,
and, if necessary, proved against
the prisoner. Reg, v. Clark, Dears.
C. C. 198 ; 3 C. <fc K. 367; 17 Jur.
582 ; 22 L. J., M. C. 135 ; 6 Cox,
C. C. 210.
On a trial for felony after a pre-
vious conviction the prisoner is to
be arraigned on the whole indict-
ment, and the jury is to have the
new charge only stated to them,
and if no evidence to character is
given, nothing is to be said ta the
jury of the previous conviction till
they have given their verdict on
the new charge, and then, without
being re-sworn, the jury is to hear
the statement of the previous con-
viction, and the proof of it. Reg,
V. Shvtaemwih, 3 C. & K. 375 ; T.
& M. 626 ; 2 Den. C. C. 351 ; 15
Jur. 1066 ; 21 L. J., M. C. 36 ; 5
Cox, C. C. 369.
On a trial for a felony after a
previous conviction if the prisoner's
counsel obtains evidence of good
character on cross-examination, this
entitles the prosecutor to go into
evidence of the previous conviction
before the jury finds ^a verdict on
the new charge, the same as if the
prisoner had obtained evidence of
good character by calling a witness.
Reg. V. Shrimptony 3 C. <fc K. 373 ;
T. & M. 628; 2 Den. C. C. 319;
21 L. J., M. C. 37 ; 5 Cox, C. C.
387.
It is no objection to an indict-
ment that a previous conviction is
stated at the beginning of it, by
way of introductory averment, in-
stead of at the end, in the form of
a separate count. Reg, v. HiUon,
Bell, C. C. 20 ; 5 Jur., N. S. 47 ;
28 L. J., M. C. 28; 7 W. R. 59; 8
Cox, C. C. 87.
If, to prevent prejudice, the pris-
Fish. Dig. — 44.
oner, at the request of his counsel,
has not been arraigned on the
charge of the previous conviction
before the verdict has been given
on the subsequent charge, he may
afterwards be arraigned thereon,
and the jury may afterwards in-
quire respecting it. lb.
Proof,]— By 14 & 15 Vict. c.
99, s. 13, "whenever in any pro-
" ceeding whatever it may be nec-
" essary to prove the trial and con-
" viction or acquittal of any person
" charged with any indictable of-
" fence, it shall not be necessary to
" produce the record of the con-
" viction or acquittal of such per-
" son, or a copy thereof, but it shall
" be sufficient that it be certified or
*' purport to be certified under the
" hand of the clerk of the court or
"other ofllcer having the custody
" of the records of the court where
" such conviction or acquittal took
" place, or by the deputy of such
" clerk or other officer, that the
" paper produced is a copy of the
" record of the indictment, trial,
" conviction and judgment or ac-
" quittal, as the case may be, omit-
" ting formal parts thereof"
A previous summary conviction,
which, under the above statute, is
required to be proved by a certified
copy, also requires proof of the
prisoner's identity as under 7 & 8
Greo. 4, c. 28, s. 11, which remains
in this respect as it stood before.
The identity may be proved by
evidence from which a jury may
draw the conclusions that he is the
same person named in the certif-
icate, although no witness saw him
convicted at his trial. Rerj. v.
Leng, I F. & F. 77— Byles.
In order to prove the identity ot
a prisoner who is named in a certif-
icate of a previous conviction, it
is not necessary to call a witness
who was present at the trial to
which the certificate relates, it is
sufficient to prove that the prisoner
is the person who underwent the
^ I
578
EVIDENCE,
ii
sentence mentioned in the certifi-
cate. Beg. V. Crofts, 9 C. & P.
219— Gurney.
It is suflScient evidence of a pre-
vious summary conviction, to shew
that the certificate of conviction
and the warrant agree, and that
the prisoner was received into cus-
tody under the warrant, without
further proving identity. Iteg. v.
Levy, 8 Cox, C. C. 73— Byles.
By 28 & 29 Vict. c. 18, s. 8, « in
" any criminal proceeding a witness
" may be questioned as to whether
" he has been convicted of any
" felony or misdemeanor, and, up-
" on being so questioned, if he
" either denies or does not admit
" the fact, or refuses to answer, it
" shall be lawful for the cross-ex-
" amining party to prove such con-
" viction ; and a certificate con-
taining the substance and effect
only (omitting the formal part) of
^' the indictment and conviction for
^' such ofience, purporting to be
'•' signed by the clerk of the court
" or other officer having the cus-
" tody of the records ot the court
" where the offender was convict-
" ed, or by the deputy of such clerk
" or officer (for which certificate a
" fee of 5«. and no more shall be
" demanded or taken), shall, upon
" proof of identity of the person,
" be sufficient evidence of tue said
" conviction, without proof of the
" signature or official character of
" the person appearing to have
'' signed the same."
The proper proof that a prisoner
was in lawtul custody, under a sen-
tence of imprisonment passed at the
:aRsizes, is, by the proof of the rec-
ord of his conviction ; and neither
the production of tlie calendar of
the sentences signed by the clerk
of the assize, and by him delivered
to the governor of the prison, nor
the evidence of a person who heard
sentence passed, is sufficient for this
nirpose. Jieff, v. Bawrdon, 2 C. &
". 366— Maule.
A certificate of a conviction,
fe"
made at the quarter sessions for a
borough, purporting to be signed
by a person described therein as
deputy clerk of the peace of the
borough, and having the custody
of the records of the quarter ses- '
sions, is admissible in evidence, as
purporting to be made by an officer
having the custody of the records of
the court where the conviction was
made, within 5 Geo 4, c. 84, s. 24,
although the 5 & 6 Will 4, c. 76,
gave no power to appoint a deputy
clerk of the peace for a borough
within that act. B^g. v. I^^sons,
1 L. R., C. C. 24 ; 12 Jut., N. S.
436 ; 35 L. J., ]VL C. 167 ; 14 W.
R. 662 ; 14 L. T., K S. 450.
A person de facto filling an office,
carrying with it the custody of the
records of the court, may lawfidly
give such a certificate, although he
may not hold such office de jure.
lb. — ^Bramwell.
19. Maps or Plans.
A map or a plan prepared for
the purpose of a trial ought not to
contain any reference to transac-
tions and occurrences which are the
subject-matter of the investigation
before the court, and not existing
when the survey was made ; and if
it does, and the objection is taken,
the court will not allow the jury to
look at it. Beg. v. MUcheR^ 6
Cox, C. C. 8^— Williams.
20. Letters.
The post-office marks, in town or
country, proved to be such, are
evidence that the letters on which
they are were in the office to which
those marks belong at the time
those marks specify. Rex v. Plum-
er, R. & R. C. C. 264.
Though a letter found upon a
prisoner may be read, it is no evi-
dence of the facts it states, they
must be proved by other evidence.
lb.
Letters which have never been
in tha custody of a prisoner, or
any way adopted by him (being in-
NOTICE TO PRODUCE.
579
tercepted at the post-office), al-
though directed to him, cannot be
read in evidence against him. Hex
V. mvey, 1 Leach, C. C. 232, 235.
A letter of instruction from the
lords of the Treasury, signed by
three lords of the Treasury, is ad-
missible upon proof of the hand-
writing of the three persons whose
names were subscribed to it, with-
out producing the commission. Hex
V. Jones, 2 Camp. 131 — Ellenbor-
ough.
Jf a letter, written by one of sev-
eral prisoners, is read in evidence,
and in this letter the names of the
other prisoners are mentioned, these
names must not be omitted in the
reading of the letter, but the judge
will tell the jury to pay no atten-
tion to the letter, except so far as
it affects the writer. M^ v. J^letch-
6r, 4 C. & P. 250— Littledale.
21. Proof of Handwriting.
A prisoner's handwriting may be
proved by witnesses who have seen
him write. Hex v. Sensey, 2 Ld.
Ken. 366 ; 1 Burr. 642.
A person who has received let-
ters purporting to come from a jjar-
ty, and has acted on those letters,
may prove the handwriting of such
party. JKex v. JSlaney, 5 C. & P.
213— Tenterden.
A policeman who has only once
seen a prisoner write, and that since
suspicion has been excited against
him with reference to the charge
upon which he is tried, and upon an
opportunity taken by the policeman
with the view of being able to speak
to his handwriting, is not an admis-
sible witness to prove that a docu-
ment, the foundation of the charge
against the prisoner, is in his hand-
writing. JReg. V. Crouch, 4 Cox,
C. C. 163— Maule.
By 28 & 29 Vict. c. 18, s. 8, " in
*'' all criminal cases comparison bf a
" disputed writing with any wiiting,
'^ proved to the satisfaction of the
"judge to be genuine, shall be per-
" mitted to be made by witnesses ;
"and such writings, and the evi-
" dence of witnesses respecting the
" same, may be submitted to the
" court and jury as evidence of the
"genuineness or otherwise of the
" writing in dispute."
22. Proof of Documents hy Attest-
ing Witnesses,
By 28 & 29 Vict. c. 18, s. 7, " m
"all criminal cases it shall not be
" necessary to prove by the attest-
" inff witness any instrument to the
" validity of which attestation is
" not requisite, and such instrument
"may be proved as if there had
" been no attesting witness thereto."
23. Notice to Produce,
Where notice to produce a policy
of insurance was given to the pris-
oner in the middle of the day preced-
ing the trial, the prisoner's residence
being thirty miles from the assize
town : — Held, that secondary evi-
dence of the policy could not be
given. Heg, v. Kitson, Dears. C. C.
187 ; 17 Jur. 422 ; 22 L. J., M. C.
118;6Cox, C. C. 159.
Upon an indictment for arson,
with intent to defraud an insurance
society, the nature of the proceed-
ings does not give notice to the
prisoner to produce the policy, so
as to dispense with actual notice to
produce. lb.
Service of notice to produce on
an attorney who had iferved a notice
on behalf of the prisoner, as to an
application to bail him upon the
cnarge, is sufficent. Beg, v. Boucher,
1 F. ifc F. 486— Martin.
A notice to produce a document
delivered to an attorney, suggested
to be the prisoner's attorney, is (in
the absence of evidence that he was
so) not a valid notice, so as to ena-
ble secondary evidence to be given ;
and the attorney was not allowed to
be asked whether he had shewn the
notice to his client. Heg, v. Dovm-
ham, 1 F. & F. 386— Pollock.
An indictment alleged that the
prisoner, being in the employ of the
580
VERDICT.
Post-office, stole a post -letter, to
wit, a post-lettor directed and ad-
dressed as follows, that is to say
(setting out the address), which
contained property. At the trial,
a witness having deposed that he
employed a man to post a letter
containing the property in question :
— Held, that he might be asked
how that letter was addressed, al-
though no notice to produce the let-
ter had been given. Meg, v. Glvbe^
3 Jur., N. S. 698— Pollock.
Where a trial has been postponed
from one session to another, a notice
to produce served on the prisoner in
time for the first session is available
for the subsequent one without any
fresh service, and service on the
prisoner in gaol is sufficient. Reg,
v. Robinson, 5 Cox, C. C. 183.
24. Production and Indirection of
Docxmi&nts,
On an indictment in the Central
Criminal Court, for obtaining mon-
ey by false pretence, that a parcel
contained certain letters of the pros-
ecutrix to the prisoner, which he
promised, for a valuable considera-
tion, to give up, and which had
been seized under a search warrant,
a judge on the rota for the session,
after uie session had opened, made
an order in favor of the prisoner for
an inspection of the letters. JReg, v.
ColuGci, 3 F. & F. 103.
A solicitor fbr a prisoner is bound
to produce a document, when the
prisoner is charged with an oiTence
in respect of such document. Reg.
V. Broum, 9 Cox, C. C. 281—
WilUs.
If on the trial of an indictment
for publishing an obscene snuff-box,
a witness proves that the defendant
exhibited to him the box produced
on the trial, or a box exactly sim-
ilar, this is not sufficient, if the wit-
ness cannot identify the very box
exhibited to him. Rexv.Roaensteiny
2 C. & P. 414— Parke.
In an indictment for perjury com-
mitted on the trial of a person for
making a &lse statutory declaratioD,
the perjury assigned was that the
defendant swore that there was no
draft of that statutory declaratioa
The indictment did not shew thsX
the draft was, or had been, in his
possession. The draft was sup-
posed to have been made by a firm
of solicitors, of which the defendant
was a member, on the occasion of a
loan of money. At the trial, sec-
ondary evidence of the draft was al-
lowed to be given without a notice
to produce having been served on
the prisoner, it being proved to
have been in his posse^on : — Held,
that a notice to produce was neces-
sary, and that secondary evidence
was inadmissible without it. Reg,
V. Elworthy, 17 L. T., N. S. 293 ; 1
L. K, C. C. 103 ; 37 L. J., M. C. 3 ;
16 W. R. 207 ; 10 Cox, C. C. 579.
25. On other Points.
Where an indictment chained
that a person shot at one Harvey
Gamett Phipps Tuckett : — Held,
that Tucketvs card, though given
to one of the witnesses in the pres-
ence of the party charged, could
not be given in evidence against
him on the trial to prove the name,
as its contents were not shewn to
have been communicated to him.
Reg. V. Douglas^ Car. & M. 193 —
Williams.
XLVn. Vkbdict.
Though a verdict is recorded,
yet if it appears promptly, that it
is not according to the intention of
the jury, it may be vacated and set
right. Rex v. Parkin, 1 M. C. C. 45.
If two are indicted for jointly
making a corrupt contract with a
third person for the procuring an
East Lidia cadetship, one may be
convicted, though the other is acr
quitted. Rex v, Taggart, 1 C. & P,
201— Abbott.
A good finding on a bad ooont
NEW TRIAL.
581
in an indictment, and a bad finding
on a good count, stand on the same
footing ; both being nullities. O' Con-
nell V. Meg, (in error), 11 C. & F.
155 ; 9 Jur. 25.
Where a count contains only one
chaise against several defendants,
the jury cannot find any one of the
defendants guQty of more than one
charge. Ih.
At sessions the jury gave a special
verdict of not guilty, and it was en-
tered in the book of the clerk of the
peace. Afterwards, the chairman
told the jury they must reconsider
their verdict ; and they gave a ver-
dict of guilty generally, but recom-
.mended the defendant to mercy on
account of his not doing the act
with a malicious intent; and the
verdict was then altered in the
book of the clerk of the peace.
The court refused to interefere by
mandamus to cancel the alterations.
Rex V. Suffolk (Justices)^ 5 N. & M.
139 ; Rex v. Hughes, 1 H. ifc W.
313.
One of the jury pronounced a
verdict of not guilty, which was en-
tered by the clerk of the peace in
his minute book, and the prisoner
was discharged. The other jury-
men then interfered, and said their
verdict was guilty ; whereupon the
prisoner was brought back, and the
jury was again asked for their ver-
dict, when they all said it was
guilty, and that they had been
unanimous. A verdict of guilty
was then recorded : — ^Held, that the
verdict was properly amended ; and
the conviction must stand. Reg, v.
Vodden, Dears. C. C. 229 ; 17 Jur.
1014; 23 L. J., M. C. 7 ; 6 Cox, C.
C. 226.
A verdict of not guilty can be en-
tered on one count, and of guilty on
another. Re^. v. Craddock, 14 Jur.
1031— C. C.R.
Where a jury returns what the
judge considers to be an improper
verdict, he may direct them to re-
consider it, and is not bound to re-
cord it unless they insist upon his
doing so. Where the jury recon-
siders their verdict and alters it,
the second is the real verdict of the
jury. Reg, v. Meany, L. & C. 213 ;
9 Cox, C. C. 231 ; 8 Jur., N. S. 1161 ;
32 L. J., M. C.24; 11 W. R. 41 ; 7
L. T., N. S. 393.
Upon an indictment for stealing
a watcli the jury returned the fol-
lowing verdict : — " We find the
prisoner not guilty of stealing the
watch, but guilty of keeping it iii
the hope of reward from the time
he first had the watch." The court
of quarter sessions directed a ver-
dict of guilty to be entered : — Held,
that upon this finding a verdict of
not guilty should have been entered.
Reg, V. York, 1 Den. C. C. 335 ; T.
& M. 20 ; 2 C. <fc K. 841 ; 12 Jur.
1078 ; 18 L. J., M. C. 38.
A jury returned a verdict of
guilty on an indictment, but rec-
ommended the defendant to mer-
cy on the ground that perhaps he
did not know that he was acting
contrary to law: — Held, that the
conviction was not invalidated by
this addition to the verdict. Reg,
V. Crmoshaw, Bell, C. C. 303 ; 8
Cox, C. C. 375 ; 9 W. R. 38.
Indictment for murder. Defence
that deceased committed suicide.
Verdict guilty, the jury adding that
they believed the act was commit-
ted without premeditation. The
judge refused to receive such a ver-
dict, and directed the jury to say
guilty or not guilty. Reg, v. Med-
oney, 9 Cox, C. C. 6.
XLVIH. New Trial.
In vohat Cases^ — No new trial
can be granted in cases of felony.
Rex V. Mawbey, 6 T. R. 638.
But with respect to misdemean-
ors, it is entirely discretionary in
the court whether it will grant or
refuse a new trial. Ih.
A new trial was granted on the
ground of the improper reception of
582
NEW TRIAL.
depositions in a case of felony re-
moved by certiorari. Heg. v. Scaife,
17 Q. B. 238.
But this case has been overruled.
Heg. V. Bertrand, 16 L. T., N. S.
752— P. C.
No new trial can be granted on
an indictment for perjury, where
the defendant is acquitted. Rex v.
Brice, 2 B. & A. 606 ; 1 Chit. 352.
After a verdict for a defendant,
upon an indictment for the non-re-
pair of a highway, the court refus-
ed an application for a new trial, on
the ground of the improper rejection
of evidence ; but suspended the judg-
ment in order that another indict-
ment might be preferred. Rex v.
Svttm, 5 B. & Ad. 52 ; 2 N. & M.
57 ; S. P., Rex v. Waiidsworth, 1
B. & A. 63 ; 2 Chit. 282 ; Reg, v.
Ghallicombe^ 6 Jur. 481.
A new trial was refused after a
verdict of not guilty, upon an indict-
ment for not repairing a road, when
the verdict did not bind tlie right.
Rex V. Burbon, 5 M. & S. 392.
Where, upon trial of an indict-
ment for a misdemeanor, a witness
examined before the grand jury was
not examined at the trial, and a wit-
ness not examined before the grand
jury was: — Held, that it was not
such a surprise upon the defendants
as entitled them to a new trial.
Rex V. HoUijigberry^ 6 D. & li. 345 ;
4 B. & C. 329.
Upon the trial of an indictment
for a misdemeanor, which continued
more than one day, the jury, without
the knowledsce or consent of the de-
fendants, separated at night : — Held,
that the verdict was not therefore
void ; and that it formed no ground
for granting a new trial, it not ap-
pearing that there was any suspicion
of any improper communications
having taken place. Rex v. Kin-
near, 2 B. <fc.A. 462.
Tlie court refused to grant a rule
nisi for a new trial after a verdict
for the defendant upon an indict-
ment for non-repair of a church-
yard fence, which was moved, on tbe
ground of tlie veniict being against
evidence. Rex v. RejpieU^ 6 East,
315 ; 2 Smith, 406.
Not grants! even for a misdirec-
tion, after an acquittal on an indict-
ment for a misdemeanor. Hex v.
Cohen J 1 Stark, 516 — EUenborongL
According to the common law
there is no power to grant a new
trial in a case of felony. Reg, v.
Bertrand, 1 L. R., P. C. 520 ; 31 L.
J., P. C. 51 ; 16 W. R. 9 ; 16 L. T.,
N. S. 752 ; S, P., Reg. v. Murphy,
38 L. J., P. C. 53 ; 2 L. R., P. C.
535 ; 17 W. R. 1047 ; 21 L. T., N.
S. 598.
The 17 & 18 Vict. c. 125, s. 35,.
C. L. P. Act, 1854, which gives an
appeal on motions for new trials
does not apply to indictments. Reg.
V. Stephens, 7'B. & S. 710.
Ventre de Novo,'] — In a charge of
felony where the indictment is good
and the prisoner has been given in
charge to a jury in due form of law
impanneled, chosen and sworn, and
a verdict has been returned and
judgment given, the proceedings
are final, and a venire de novo will
not lie. Reg, v. Murphy, 88 L. J.,
P. C. 53 ; 17 W. R. 1047 ; 2 L. R.,
P. C. 535 ; 21 L. T., N. S. 598.
Ghromids,'] — If all *the jury was
not present when the verdict of
guilty was delivered against a de-
fendant fi^r the publication of a li-
bel, and it is uncertain whether they
all heard such verdict pronounced
by the foreman, the court will, with
the consent of the defendant, grant
a new trial. Rex v. WooUery 2
Stark, 111— Abbott.
Upon the trial of an information
for a libel by a special jury, only
ten jurymen appeared, and two
talesmen were sworn to make up
the jury : it is no groimd for a new
trial, that two of the non-attending
special jurymen named in the panel
had not been smnmoned, though it
NEW TRIAL.
583
appeared that this fact was unknown
to the defendant until after the trial.
Rex Y. Hwnl, 4 B. & A. 480.
After a special jury had been
sworn on the trial of an indict-
ment for a misdemeanor, it was
discovered that one of them had
sat on the grand jury who found
the bill. It was proposed that he
should leave the box, but the de-
fendants objected to this course : the
trial proceeded, and they were found
guilty. Under these circumstances,
the court refused to grant a rule for
a new trial on the ground of mistri-
al. Reg, V. tSuilivan, 1 P. & D. 96 ;
8 A. & EL 831.
Where, on the trial of an indict-
ment for perjury, it was necessary
to swear talesmen from the common
jury panel, and one J. Williams be-
mg called, his son R. H. Williams
(at the request of his father, and
without collusion), appeared for
him, and was sworn and served on
the jury, he not being of age, neith-
er having a qualification, not being
on the panel : — Held, that there was
a mistrial, and a rule obtained for
a new trial was made absolute.
Rex V. Tremaine, 7 D. & R. 684 ;
5 B. & C. 254.
Where, in an indictment not
charging an offence for which tlie
defendant, if guilty, might suffer
fine and imprisonment, a civil right
comes in question, and the right
would be bound by the verdict, a
new trial may be granted after a
verdict for defendant. By Lord
Campbell, C. J., and Crompton, J.
Reff, V. RusseU, 3 El. & Bl. 942 ; 18
Jur. 1022 ; 23 L. J., M. C. 173. See
Reg, V, Botfidd, 1 Jur., N. S. 594,
n.— Q. B.
But by Coleridge, J., wherever
the substance of a criminal pro-
ceeding is civil, a new trial may be
granted after a verdict for the de-
fendant, on the ground either gf
misdirection, or oi tlie verdict be-
ing against the evidence. Ih,
accordingly, by Lord Camp-
igagai
Held,
bell, C. J., and Crompton, J. (Cole-
ridge, J., dissenting), that where an
indictment charged the defendant
with erecting an obstruction to the
navigation of the Menai Straits, and
the nght to an oyster fishery was in
question, the court ought not to grant
a new trial after verdict for the de-
fendant. Ih.
A new trial will not be granted,
after an acquittal upon an indict-
ment for obstructing a highway, on
the ground that the verdict is
against the evidence. Reg. v. John-
son, 6 Jur., N. S. 553 ; 29 L. J., M.
C. 133; 8 W. R. 286— Q. B.
But a new trial will be granted
on an indictment for a misdemean-
or on the ground of surprise, as in
civil cases. Reg. v. Whitehotise,
Dears. C. C. 1.
Defendants entitled to.^ — Where
several defendants are tried at the
same time for a misdemeanor, and
some are acquitted and some con-
victed, the court may grant a new
trial as to those convicted, if they
think the conviction improper. Rex
V. Mawhey, 6 T. R. 619.
Where all of several defendants
in an indictment for conspiracy are
found guilty, if one of them shews
himself entitled to a new trial, on
grounds not affecting the others,
the new trial will nevertheless be
granted. Reg. v. Gomj^ertz, 9 Q.
B. 824; 16L. J., Q. B. 121.
Practice on — Time to move.^ —
A defendant, convicted on a crim-
inal prosecution, cannot move for a
new trial after the first four days of
the next tenn ; though, if it appears
to the court at any time before
judgment, that injustice has been
done by the verdict, they will inter-
pose and grant a new trial. Rex v.
HoU, 5 T. R. 436.
A motion for a new trial on be-
half of a defendant in an indict-
ment, must be made within the first
four days of term, though the ar-
584
JUDGIVIENT AND SENTENCE.
gument will be postponed till he is
briniglit w.) for judgment. Reg. v.
Hetherington^ 5 Jur. 529 — Q. B.
Where a new trial is to be moved
for by a defendant in a criminal
case, intimation must be given to
the court dfuring the first four days
of term that the party is prepared
to move. Reg, v. Nevrman^ 1 El.
& Bl. 268 ; Dears. C. C. 85 ; 17
Jur. 617 ; 22 L. J., Q. B. 156.
Affidavits,'] — Affidavits of new
facts are not in general admissible
in criminal cases, on a motion for a
new trial, unless there was some
siu'prise on the defendant at the
trial ; but affidavits of the death of
a person may be received to account
for his not having been examined as
a witness. Rex v. Roicditch, 2 Chit.
278.
Personal Attendance,^ — All the
defendants convicted upon an in-
dictment for a conspiracy must be
present in court when a motion for
a new trial is made on behalf of
any of them. Rex v. Teal^ 11 East,
307 ; S, P., Rex v. Ask&w, 3 M. &
S. 9 ; Rex v. Cochrane (Lord), 3
M. & S. 10, n.
Wliere a defendant convicted of
a misdemeanor at the assizes was
committed to the county gaol to
abide the judgment of the court,
and was detained for no other cause;
on a suggestion of his inability to
pay the expense of bringing himself
up, the court allowed a motion for
a new trial to be made without his
personal attendance. Rex v. RoUz,
8 D. & R. 65.
It seems that the consent of the
counsel for .the prosecution cannot
disi)ense with the rule which re-
quires the presence of defendants
convicted upon a criminal proceed-
ing, during a motion for a new trial.
Rex V. Fielder, 2 D. & K. 46.
A defendant in the actual cus-
tody of the marshal upon criminal
process, in consequence of an indict-
ment in the King's Bench, need not
be present when a motion for a new
trial is made on his behalf. Rex v.
RoUingberry, 6 D & R. 345,- 4 B.
& C. 329.
A defendant sentenced to trans-
portation cannot move for a new
trial without appearing in conrt,
though the sentence has been parsed
at the assizes under 1 1 Geo. 4 <fe 1
Will. 4, c. 70, s. 9. Reg, v. Caud-
weU, 17 Q. B. 503 ; 2 Den. C. C.
372, n. ; 15 Jur. 1011 ; 21 L. J., M.
C. 48.
Semble, that where there are sev-
eral defendants, all need not be pres-
ent in court in order to entitle one
or more of such defendants to move
for a new trial, lb.
In movii^ for a new trial where
the defendant has been found guilty
of a nuisance in obstructing a pub-
lic sewer, and where he is liable not
to personal punishment but to a
fine, it is not necessary that he
should be present in court. Reg.y.
Parkinson, 2 Den. C. C. 459 ; 15
Jur. 1011.
Costs,'] — ^The rule as to payment
of costs on a motion for a new trial
is the same in principle in civil and
criminal cases. Rex v. Ford, 1 N.
& M. 776.
Where a new trial, on an indict-
ment removed into the Queen's
Bench by certiorari at the instance
of the defendant, is ordered on the
ground of surprise, the court may,
in its discretion, order the costs to
await the event pf the new trial.
Reg, V. 'Whiiehxntse, Dears. C. C. 1.
XLIX. Judgment axd Sentence.
1 . Form and Entry generally, 585.
2. At Nisi Prim, 588.
3. Bringing up bejfore Court ofQuteen't
Bench, 589.
4. Arrest of, 590.
5. jRewrscii, 590.
As to MuKDEK, see page 382.
FORM AND ENTRY GENERALLY.
585
1. Form cmd EnJl/ry generaUy.
The record at the quarter ses-
sions, after stating that the defend-
ants were indicted for stealing oats,
to which they pleaded not guilty,
and a verdict of guilty thereon,
added, " that because it appeared
to the justices, that, after the jury
had retired,* one of them had sep-
arated from the other jurors, and
conversed respectmg his verdict
with a stranger, it was considered
that the verdict was bad," and it
was therefore quashed, and a venire
de novo awarded to the next ses-
sions ; and it then proceeded to set
out the appearance of the parties at
such sessions, and the trial and con-
viction by the second jury, " where-
upon all and singular the premises
being seen and considered, judg-
ment was given ": — Held, on a writ
of error, that such judgment was
right. Hex v. -Foio^er, 4 B. & A.
273.
A witness being indicted for per-
jury is not a reason for postponing
judgment against the person con-
victed. Hex V. Haydon^ 1 W. Bl.
404 ; 3 Burr. 1387.
Indictment against A., B., C. and
D. for a conspiracy, charging that
they conspired together, with divers
other persons unknown. A. and B.
were tried. A. was found not guil-
ty, and B. was found guilty of con-
spiring with C. C. had pleaded
before the trial of A. and B., but
neither he nor D. appeared to take
their trials. On motion to arrest
the judgment against B., or sus-
pend it till C. be tried : — Held, that
the verdict was conclusive against
B. as a general verdict of guilty,
and that judgment might be given
against him without reference to
wnat the verdict might be on the
trial of C. Rex v. Vooke^ 7 D. &
R. 673 ; 5 B. & C. 538.
A judgment of imprisonment
against a defendant to commence in
fiituro, i. e. from and after the de-
termination of an imprisonment to
which he was before sentenced for
another offence, is good in law.
Wilkes V. Rex (in error), 4 Bro. P.
C. 367.
It is not the practice of any court
of criminal jurisdiction to make the
day upon which execution of any
corporal punishment is to be done a
part of the original sentence. The
time of inflicting such punishment
is usually left either to the discre-
tion of the officer to whom the exe-
cution of the sentence belongs, or
is appointed by a particular rule of
the court (or statute 27 & 28 Vict,
c. 44), which awards the punish-
ment. Atkinson v. Rex (in error),
3 Bro. P. C. 517.
Where a fixed fine by statute for
a misdemeanor is miscalculated in
the verdict and the judgment, the
court, upon a rule served on all par-
ties interested, will alter the rule
for judgment against the prisoner,
and the entry roll as to so much of
the punishment, but they will not
alter the judgment and verdict.
Rex V. Stevens^ 3 Smith, 366.
A sentence of corporal punish-
ment cannot be pronounced upon a
person in his absence. Rex v. Hann^
3 Burr. 1786 ; 8. P., Anon.,, Lofft,
400.
A general j udgment for the crown,
on an indictment containing several
coimts, one of which is bad, and
where the punishment is not fixed by
law, cannot be supported. 0 ' Gen-
7ieU V. Reff, (in error), 11 C. & F.
155 ; 9 Jur. 25.
An indictment contained four
counts for extortion, and three counts
for uttering forged licences. The
jury having returned a verdict of
guilty upon all the counts, the court
passed sentence of the same iden-
tical term of imprisonment upon
each count separately. Reg, v. Var-
ter, 9 Jur. 178— Q. B.
Two persons charged on indict-
ment with a joint felony, ought not
to be sentenced thereon on proof of
two distinct felonies. If a verdict
of guilty is given against both,
judgment may be given against the
586
JUDGMENT AND SENTENCK
party who is proved to have com-
mitted the first felony in order of
time. Reg, v. Gray^ 2 Den. C. C.
87;T. &M. 411.
Il is not necessary, in recording
sentence, to refer to the statute
which gives the punishment. Mur-
ray V. Meg, (in error), 7 Q. B. 700;
9 Jul-. 596 ; 14 L. J., Q. B. 357.
An indictment at quarter sessions
charged prisoners, in a first count,
with stealing in the dwelling-house
of A. the goods of A. above the
value of 5/. ; in the second count,
with simple larceny of monies and
goods (not " other " goods, &c.,) of
A., describing them precisely as in
the first count, and not using the
word " afterwards." Not guilty.
Jury process to try whether the
prisoners are guilty of the felony
aforesaid. Verdict, that the prison-
ers are guilty of the felony afore-
said. Judgment, that they respect-
ively be transported for ten years :
— Held, that an indictment for fel-
ony containing several counts is
bad in arrest of judgment, and on
error, for duplicity, if it necessarily
appears that two or more of the
counts are for the same ofience ;
but that this did not necessarily ap-
pear on the present indictment.
Campbell v. Reg, (in error), 11 Q.
B. 799 ; 2 New Sess. Cas. 297 ; 10
Jur. 329; 15 L. J., M. C. 76 ; 2
Cox, C. C. 463.
Held, secondly, that the word
" felony " was not nomen coUect-
ivum, meaning felony generally,
but pointed to one particular charge
of felony. Ih, See RyaUs v. Reg. (m
error), 11 Q. B. 781.
Held, thirdly, that the verdict
was bad for uncertainty, in not
specifjang the offence of which it
found the prisoners guilty. lb.
Held, fourthly, that the judgment
was erroneous, the court not being
at liberty to apply it to the first
count only. lb.
On error in the Exchequer Cham-
ber : — ^Held, that whether or not
the word " felony " was to be taken
as nomen coUectivum in the judg-
ment at sessions, it could mean m
the jury process one offence only,
and therefore the process was here
misawarded, and the judgment
could not be sustained* lb.
Under 7 Will 4 & 1 Vict. c. 90,
s. 1, by which any person convicted
of the offence of brealang and en-
tering a dwelling-house, and steal-
ing therein, shall be liable to be
transported beyond the seas for any
term not exceeding fifteen years,
nor less than ten years, there was
no power to pass sentence of trans-
portation for less than ten years.
Whitehead v. Reg, (in error), 7 Q.
B. 582 ; 9 Jur. 594 ; 14 L. J., M. C.
165.
On an indictment for libel, the
defendant suffered judgment by re-
traxit. The record of the j udgment
stated that the prosecutor and the
defendant came, &c., and the de-
fendant " withdrew his plea by him
pleaded, whereby our lady the
Queen remaineth against him with-
out defence in his behalf, whereup-
on " it was adjudged that he be
convicted : — ^Held, sufiicient ground
for a judgment, though it was not
expre^y allied that the defendant
confessed the indictment. Gregory
V. Reg, (in error), 15 Q. B. 957 ; 15
Jur. 79 ; 19 L. J., Q. B. 367— Exch.
Cham.
The judgment, as entered on the
record, being that, for the offences
charged in each and every count of
the indictment, the defendant be
imprisoned in the Queen's prison for
six months now next ensuing : —
Semble, th|it the judgment was, in
form, a sentence of one term of sax
months' imprisonment upon the
whole indictment, and would, there-
fore, be erroneous if any count was
bad. lb.
To the judgment of imprison-
ment was added, " and that ,be "
(defendant) " be placed in the first
division of the fourth class of pris^
oners in the Queen's prison *' : —
Semble, that, if this direction was
FORM AND ENTRY GENERALLY.
587
not warranted by an order of the
secretary of state, under 5 <fc 6 Vict,
c. 22, it did not vitiate the judg-
ment. Ih,
Held, by the Queen's Bench, that
such direction, when warranted, is
no part of the judgment of the court,
but a mere order. Ih,
On an objection to the entry of a
judgment, on the ground that it
was a general judgment upon all
the counts, and one of them was
bad, the court ordered the case to
stand over to allow the prosecutor
to apply to the court below to
amend. Ih,
If one count in an indictment re-
moved from the quarter sessions to
the Queen's Bench by writ of error
is good, the court may, under 11 &
12 Vict. c. 78, s. 5, pronounce judg-
ment, or direct the sessions to pro-
nounce it, on the good count. HoU
lowayY, Reg, (in error), 17 Q. B.
819; 2 Den. C. C. 287; 15 Jur.
825.
The record of the proceedings in
the Queen's Bench upon an indict-
ment, containing several counts for
perjury, after regularly setting forth
all the proceedmgs, down to the
finding of a verdict of guilty and
the prayer of judgment, went on to
state that '^ because it appears to
the court here, that the verdict so
given against 0. W. K. was unduly
given ; therefore, the verdict is by
the court here vacated and made
void ; and all other process ceasing
against the jury before impanneled,
the sheriff is commanded so that he
cause a jury anew thereupon to
come, &c., by whom the truth of
the matter may be better known."
And then, after regularly carrying
down the further proceedings to the
finding of a second verdict of guilty,
and a second prayer of iudginent, it
concluded thus : " It is considered
and adjudged and ordered that O.
W. K., for the offence charged upon
bim in and by each and every count
of the indictment, be imprisoned in
tbe Queen's prison for the space of
eight calendar months " : — ^Held,
that the record in terms contained a
sufficient entry of the award of a
new trial, it apjiearing that the form
adopted was the same as the prece-
dents used and approved of, and
that the entry of the final judgment
and sentence was sufficiently cer-
tain. King v. Meg, (in error), 13
Jur. 742 ; 18 L. J., Q .B. 253— Exch.
Cham.
The written list of sentences pass-
ed u|X)n the prisoners given to the
gaoler by the clerk of the assize,
and which is his only authority for
their detention, is not evidence that
they are in legal custody on an
indictment for assaulting the turn-
key in the execution of his duty.
Reg, V. Bourdon^ 2 Cox, C. C. 169
— Maule.
An indictment contained three
counts ; first, a count stating a pre-
vious conviction, and a subsequent
larceny ; secondly, a count for lar-
ceny ; thirdly, a count for receiving
stolen goods. When the prisoner
was arraigned, so much only of the
first count as charged the subsequent
felony was read to him, and he
pleaded guilty thereto. He also
pleaded guilty to the second count.
Then so much of the fii-st count was
read as stated the previous convic-
tion, and the prisoner pleaded guilty
thereto. He was then sentenced to
five years' penal servitude on the
second count : a nolle prosequi was
entered on the third, and nothing
was done on the first. These facts
appeared on the record. The crown
having brought the record upon
writ of error for the purpose of hav-
ing the sentence increased to seven
years' penal servitude, under 27 &
28 Vict. c. 47, s. 2 .-—Held, that the
first count was bad, and no sentence
could be entered upon it ; that, the
second count being good, the sen-
tence properly entered upon it was
not affected by the first count ; and,
the crown entering a nolle prosequi
on the first count, the judgment and
sentence were affirmed; but the
588
JUDGMENT AND SENTENCE.
court recommended that, under the
circumstances, the executive should
discharge the prisoner after two
years' imprisonment. Reg. v 0'-
Bnm, 1 Ir. R., C. L. 166— Q. B.
A prisoner had been convicted
on an indictment chargipg a pre-
vious conviction and subsequent
felony under 24 & 25 Vict. c. 96,
s. 116, and sentenced by mistake to
five years' penal servitude, seven
years being the minimum under the
statute, upon a writ of error, by
the crown, for the purpose of re-
versing the judgment and passing
the proper sentence, it appeared
from the record that the provisions
of the statute, as to arraigning the
prisoner, had been neglected : —
Held, that these provisions were
material, and the conviction was
quashed. Reg. v. Fox^ 10 Cox, C.
C. 502 ; 15 W. R. 106— Ir. Q. B.
A. was convicted of the misde-
meanor of having done grievous
bodily harm to B. The indictment
did not charge a previous conviction
of felony; but after the jury had
found hini guilty, it was proved on
oath that he had been previously
convicted of felony, but no record
or certificate of such conviction
was produced. He was sentenced
to penal servitude for five years, as
for a misdemeanor only, without any
previous conviction of felony: —
Held, that the sentence was correct
under 27 & 28 Vict. c. 47, s. 2.
Reg, V. Summers y 1 L. R., C. C.
182 ; 38 L. J., M. C. 62 ; 17 W. R.
384 ; 11 Cox, C. C. 248. See Reg.
V. Garland, 11 Cox, C. C. 224.
2. At Nisi Prius.
By 11 Geo. 4 & 1 Will. 4, o. 70,
s. 9, upon trials for felony or misde-
meanor on a K. B. Record, judg-
ment may be pronounced at the as-
sizes, and shall have the effect of
a judgment in the court above, un-
less the court in the first six days of
term grant a rule nisi for a new
trial or for amending the judgment.
A defendant on such record having
been sentenced at the assisses, cannot
apply to the court to amend th^
judgment by diminishing the pun-
ishment upon ordinary affidavits in
mitigation, or without shewing some
specific defect in the sentence, or
some matter which could not have
been adduced at the assizes. Rex
V. Llogd, 4 B. & Ad. 135.
Where judgment on a record of
the Queen*s Bench is pronounced
at the assizes under 11 Geo. 4 <& 1
Will. 4 c. 70, s. 9, the court may,
if they see fit, amend the judgment
by ordering it to be arrested. Reg.
V. NoU, 4 Q. B. 768 ; D. & M. 1 ;
7 Jur. 621 ; 12 L. J., M. C. 143.
Where a verdict has been given
for the crown in such trial, and the
defendant desires to have judgment
pronounced at the assizes, it is the
proper course for his counsel to state
at the same time, that he intends to
avail liimself of the provision of sec-
tion 9, by moving the court for a
new trial on the ground of misdirec-
tion, or in arrest of judgment. Jb.
A sentence of imprisonment pass-
ed at Nisi Prius, the defendant not
being present, may declare that the
imprisonment shall commence on
the day on which he shall be taken
to and confined in prison- King v.
Reg. (in error), 7 Q. B. 782 ; 9 Jur.
833 ; 14 L. J., M. C. 172— Exch.
Cham.
Upon the trial of an indictment
at Nisi Prius, judgment was pro-
nounced by the judge, mider 11
Geo. 4 & 1 Will 4, c. 70,6, 9 ; bat
a rule nisi, to arrest the judgment,
was afterwards granted by the
court of Queen's Bench, within the
first six days of tenn, and wibee-
quently discharged. Upon writ of
error brought, the record was
made up without any notice of such
rule: — Held, that the judgment
could not be impeached upon the
ground of such rule having been
granted, Dtinn y. Reg. (in err<ir),
12 Q. B. 1026 ; 13 Jur. 233 : 18 L,
J., M. C. 41 ; 3 Cox, C. C. 205—
Exch. Cham.
BRINGmG UP FOR JUDGMENT, ETC.
589
An indictment for felony had
been i*emoved from the quarter
sessions, and tried at Nisi Prius.
The prisoners were convicted, and
the court of Queen's Bench ordered
a new trial. Neither side brought
down the record, but the prisoners
applied to be tried there ; this could
not be done, as the record had not
been brought down. A procedendo
issued, and the prisonere were tried
at the quarter sessions, and convict-
ed. JReg. V. Scaife, 3 C. & K. 211
— ^Alderson.
3. Bringing up for Judgment before
Court of Queen'^8 Bench.
The court cannot compel a prose-
cutor to be at the expense of bring-
ing a defendant in custody up to re-
ceive judgment for a misdemeanor ;
but if the defendant is too poor to
come up at his own expense, they
will pass judgment in his absence.
Bex V. BoUz, 8 D. & K 65 ; 5 B.
& C. 334.
Where a defendant, convicted
upon an indictment for a Ubel, was
committed to prison at the instance
of the prosecutor, who would, not
aftem^ards bring him up for judg-
ment, the court, at the prayer of
the defendant, passed judgment in
his absence. lo.
When a defendant is brought
up for judgment, after verdict, the
defendant's affidavits will be first
read, and then those for the prose-
cution ; after which the defendant's
counsel will be heard, and lastly,
the counsel for the prosecution. Bex
V. Bunts, 2 T. R. 683.
But where a defendant is brought
up for sentence, after judgment by
default, the prosecutor's affidavits
will be first read, then the defend-
ant's ; after which the counsel for
the prosecution will be heard, and
lastly, the counsel for the defend-
ant, lb.
Where, upon a trial of an indict-
ment for libel, one of the defendants
pleaded guilty, and entered into re-
eognizances to appear and receive
judgment, with a condition that if
he ceased to pnblish libels he should
not be called up ; the court will not
pass judgment unless the prosecutor
produces an affidavit that he has
published a hbel since the trial.
Beg. V. Bvchardson, 4 Jur. 104 ; 8
D. P. C. 511.
Where several defendants are
brought up for sentence, some after
judgment by default and others af-
ter verdict, the counsel for all must
first be heard in mitigation, and
then the counsel for the crown in
aggravation. Bex v. Despard, 2
M. 4fc R. 406.
Where a defendant, having plead-
ed guilty to an indictment, is
brought up for judgment, the coun-
sel for the crown is to be heard be-
fore the counsel for the defendant ;
and the affidavits in aggravation
are to be read before the affidavits
in mitigation. Beg. v. Dignamy 7
A. & E. 598.
Contra, where a verdict of guilty
has been taken, though bv consent,
and without evidence. lb.
Semble, that the rule is not to be
varied where several defendants are
jointly indicted, and some suffer
judgment by default and others are
convicted on verdict ; and in such
case where there was no affidavit in
aggravation, but affidavits were of-
fered in mitigation, the court heard
the counsel fi>r the defendants first.
lb. See Bex v. Sutton, 7 A. & E.
592, n.
When a defendant is brought up
for judgment his acts subsequent to
the trial may be considered either
by way of aggravating or mitigating
the pmushment, even though they
are separate and distinct offences,
for which he may be afterwards
punished. But in such cases the
court will take care not to infiict a
greater punishment than the princi-
pal charge itself will warrant. Bex
V. Withers, 3 T. R. 428.
Affidavits are not admissible in
aggravation in a case of felony, al-
though the record has been removed
590
ERROR AND APPEAL.
by certiorari. Hex v. Mlis, 9 D. &
R. 174 ; 6 B. & C. 145.
A justice convicted of a misde-
meanor in his office must attend in
person to receive the judgment of
the court ; but upon an affidavit of
age and infirmity the coirrt will dis-
pense with his personal attendance.
Bex V. OonstaUe, 7 D. & R. 663 ; 8
B. & Ad. 659, n.
A defendant being brought up for
judgment for an assault, and it ap-
pearing that the prosecutor had
commenced an action, which was
still depending for the same assault ;
the court refused to pass any judg-
ment, except that the defendant
should give security for his good be-
haviour, he having used violent lan-
guage towards the prosecutor in ad-
dressing the court; and this, al-
though, at the time of the defendant
being brought up, the prosecutor
offered to discontinue tne action.
Hex V. 0' Gorman Mahon, 4 A. & E.
575.
4. Arrest of.
If a defendant would move in ar-
rest of judgment after conviction
for a misdemeanor, he must be
present in court. JRex v. Sprang, 2
Burr. 928.
5. Reversed.
By 11 & 12 Vict. c. 78, s. 5,
" whenever any writ of error shall
" be brought on any judgment in
" any indictment, information, pre-
" sentment or inquisitiou in any
" criminal case, and the court of er-
" ror shall reverse the judgment, it
" shall be competent for such court
" of error either to pronounce the
" proper judgment or to remit the
" record to the court below, in or-
" der that such court may pronounce
" the proper judgment upon such
" indictment, information, present-
" ment or inquisition."
Where a person has been erron-
eously sentenced at quarter sessions
to imprisonment and hard labour,
the court) after reversing the judg-
ment in error, has no alternative
but to discharge the prisoner. SU-
versides v. Beg., 2 G. & D. 617 ; 3
Q. B. 406 ; 6 Jur. 805.
Upon a reversal of the judgment,
the court has no power to order
that the plaintiff in error should be
discharged. King v. Reg. (in cr-
ror), 7 Q. B. 782 ; 9 Jur. 833 ; 14
L. J.,M. C. 172— Exch. Cham.
Where a judgment of imprison-
ment was revereed upon error, the
court granted a rule, directing that
the plaintiff in error should be dis-
charged out of the custody of the
keeper of the Queen's prison, where
he had been kept by virtue of his
commitment. HoU v. Reg. (in er-
ror), 2D. & L. 774 ; 9 Jur. 538;
14 L. J., Q. B. 98— B. C— Wights
man.
By 8 A 9 Vict. c. 68, " execution
" of judgment upon prosecutions
" for misdemeanors, while a writ of
" error is pending to reverse the
"judgment, may be stayed upofn
" giving bail."
L. ESBOB AND ApPKAL.
1. Error, 590.
2. When an Appeal lies, 594.
3. Court of Criminal Appeal, 594.
4. Bjules and Practice, 595.
1. Error.
Grounds^ — ^After judgment the
record can only be removed by a
writ of error. Rex v. Seton^ 7 T.
R. 373 ; S. P., Rex v. W. R. York.
shire (Justices)^ 7 T. R. 467.
A return to a writ of error, di-
rected to the commissioners of oyer
and terminer of the city of London,
set out the record of an indictment
found against the defendant before
the lorn mayor and others, and
stated that he was tried upon tbe
indictment by a jury of the country
at the next session holden before
the lord mayor and several of the
judges, aldermen, recorder and
others, assigned by certain letters
ERROR.
591
patent under the great seal directed
to them, or any two or more of
them, to inquire of certain offences ;
and that he was, by the verdict of
such jury, found guilty ; and that
thereimto judgment was given by
the court against him. Upon this
return the defendant assigned, as
errors in law, that the judgment
was insufficient, and should have
been for the defendant : and, as er-
rors in fact, first, that, when the
jury gave their verdict there was
ut one of the justices named in the
commission present in court : and,
secondly, that the verdict was not
at the time it was so given entered
of record. The king's coroner and
attorney answered, in nuUo est er-
ratum, and prayed that the judg-
ment might be affirmed ; — Held, as
to the firet error in fact, that, as it
appeared by the record that the
verdict was given at a session hold-
en before several of the commission-
ers and justices, the plaintiff in er-
ror could not be allowed to aver, in
contradiction of the record, that
only one of the justices was present
when the jury gave their verdict,
and the answer in nullo est erratum
is no admission of the &ct assigned
for error, unless it could lawfully be
assigned, and is well assigned in
point of form: — Held, also, that
the second error in fact assigned
was no error, inasmuch as it was
impossible that a verdict should be
recorded at the time when it was
given, the recording of it being nec-
essarily an act subsequent to the
delivery of the verdict by a jury.
Eex V. Carlile, 2 B. &' Ad. 862 ; 4
C. & P. 415.
Error was brought upon a judg-
ment at the Old Bailey, and one
ground assigned was that a material
&ct stated on the record was not
true. Tlie court held such an aver-
ment inadmissible, and affirmed the
ludgment. The fact being as al-
leg^ by the defendant below, the
court of oyer and terminer after-
wards ordered the record to be
amended, and their clerk, by a rule
of the court of K. B., came into
the latter court and made the
amendment there. Upon motion
afterwards that the case might
be again set down for a^ument : —
Held, that the court of K. B. could
not re-hear it, after the expiration
of the term in which judgment was
given, though the attorney-general
consented, and that the only remedy
was by writ of error to the House
of Lords. JRex v. Carlile, 2 B. &
Ad. 971.
Upon a writ of error on an in-
dictment for felony, the judgment
must be reversed, if an erroneous
punishment is awarded. Bourne v.
JRex (in error), 2 N. & P. 248; 7
A. & E. 58 ; 1 Jur. 542.
Where the court appears by the
indictment to have had jurisdiction
over the offence, it cannot be as-
signed as ground of error that the
onence was committed out of the
jurisdiction of the court. Meg, v.
Newton, 1 Jur., K S. 591 ; 24 L.
J., Q. B. 246 ; 4 El. & Bl. 869 ; S.
P. and S. a, 16 C. B. 97.
When an indictment contains sev-
eral counts, it is not ground of er-
ror that no verdict has been given
on some of them, provided a verdict
has been found on one good count,
and judgment given accordingly.
Latham v. JReg, (in error), 5 B. &
S. 635.
A writ of error was sued out by
a person convicted of a misdemean-
or in the Queen's Bench, and judg-
ment of reversal for non-joinder
in error was entered up in the Ex-
chequer Chamber. Subsequently the
Queen's Bench, by rule, quashed the
writ as having been lomroperly
issued for the purpose of effecting a
compromise. The writ, assignment
of errors, and judgment of reversal
remained upon the judgment roll
and transcnpt, and below them an
entry was made of the rule of
the court, quashing the writ of er-
ror.- The prisoner sued out a fresh
writ of error, and assigned errors
592
ERROR AND APPEAL.
both in the indictmeQt and in the
rule of the Queen's Bench. The
prosecutor obtained a rule nisi in
the Exchequer Chamber to expunge
the entry of the judgment : — Held,
that the court of Queen's Bench
having, in the exercise of its equi-
table jurisdiction, quashed the first
writ of error for matter dehors the
record, that the writ and the judg-
ment under it were both void and
gone, aud ought not to remain on
the record ; that the rule of the
Queen's Bench being for matter de-
hors the writ was not examinable
in en'or, and ought not to appear
on the record ; and that the rule to
expunge the judgment might be
made absolute in its terms, as the
writ of error, on which it was found-
ed, was absolutely avoided : aliter if
the writ of error had been merely
voidable, in which case the rule
would have been misconceived as
not embracing it. AUeyne v. Reg,
(in error), 5 El. & Bl. 899 ; Dears.
C. C. 505 ; 1 Jur., N. S. 869 ; 24
L. J., Q. B. 282— Exch. Cham.
The granting of a writ of error
is part of the prerogatives of the
crown. If, therefore, the attorney-
general of England, or the lord lieu-
tenant of Ireland, refuses to grant
it, the lord chancellor has no juris-
diction to review that decision.
Pigott, In re, 19 L. T., N. S. 114—
Ir. Ch.
Previous Fiat of Attorney- General,']
— It is in the discretion of the at-
torney-general to grant his fiat for
a writ of error for a misdemeanor,
and therefore, if he has exercised
his discretion by refusing to grant
his fiat, the court will not order him
to grant it. Heg, v. Newton, 4 El.
& Bl. 869 ; 1 Jur., K S. 591 ; 24
L. J., Q. B. 246 ; S, P. and S, C,
nom. Newton, In re, 16 C. B. 97.
Where, in a colony, a person has
been convicted of a criminal offence,
and is in execution of a sentence
passed for that offence, no writ of
error will be granted to bring up
the record of conviction, unless the
attorney-general has first issued his
fiat for a writ of error. Nor will a
certiorari be granted in general to
remove a record under such circum-
stances in order that a writ of error
may afterwards be brought. Nor
will a habeas corpus be granted
under such circumstances to bring
up the prisoner. Iteg, v. Lees, 27 L.
J., Q. B. 403 ; EL, Bl. & EL 828.
16 A 17 Vict. c. 82, "imposes
" terms and conditions for bringing
" writs of error upon judgments for
" misdemeanors.'*
Practice on.] — ^The court dispens-
ed with the attendance of a plaintiff
in error, to crave oyer of the record
of an indictment for bigamy, for
the purpose of assigning errors,
where it appeared that he was a
resident in Australia, where he had
been for the last thirty years ; that
he was sixty-six years of age, and
subject to paralytic attacks, and
that he could not make the journey
to this country without injury to
his health, and without considerable
pecuniary loss. Murray v. Beg. (in
error), 3 D. &L. 100 ; 7 Q. B.700 ;
9 Jur. 410 ; 14 L. J., Q. B. 857.
Where the prosecutor and his at-
torney were both dead, the court
directed service of the rule to join
in eiTor to be made, by sticking it
up in the crown-office, and serving
a copy on the solicitor to the Treas-
ury. Ih, — ^B. C. — Coleridge.
Quaere, whether a writ of error in
felony can be sued out m forma pau-
peris? Reg, V. Stokes, 3 C. & K.
189.
Upon a motion by a plaintiff in
error under 16 <fc 17 Vict. c. 32, s,
3, for reversal of judgment upon an
indictment for a misdemeanor, he
must be personally present in court.
Howard v. Reg. (in error), 10 Cox,
C. C. 54 ; 13 W. R. 316 ; 11 L. T.,
N. S. 629— Q. B.
The rule is nisi only, and should
be served on the officer of the court
from which error is brought, and
ERROR.
593
not on the prosecutor or his attorney.
lb.
Form of the praecipe and petition
witli the secretary of state's fiat nec-
essary when a writ of error in a
criminal case to the House of Lords
is sued out. JReg. v. Lavey^ 2 Den.
C. C. 512, n.
One of two persons convicted of
conspiracy may bring error on the
judgment of conviction without the
other, Wright v. Reg, (in error),
14 Q, B. 148 ; 11 Jur.' 103 ; 16 L.
J.,Q.B. 10.
Upon a motion to quash a writ of
error, under s. 5 of 8 & 9 Vict. c.
68, it is not necessary that the de-
fendants should have been previous-
ly ruled to assign errors. Meg, v.
Broome, 2 B. C. Rep. 259 ; 5 D. &
L. 607 ; 12 Jur. 838; 17 L. J., Q.
B. 208— Coleridge.
Where judgment of non pros,
has been signed by the defendant in
error, in an indictment for a misde-
meanor, because the plaintiff in er-
ror has not assigned errors in prop-
er time, the defendant in error has
a right to enter the proceedings and
judgment of non pros, upon the
judgment roll in the court below.
Reg, v. King, 9 Jur. 551 ; 14 L. J.,
Q. B. 86.
Writ of error to reverse a judg-
ment of outlawi'y of the plaintiff for
not appearing to receive judgment
upon an indictment on which he
had been convicted by his own con-
fession, and which had been remov-
ed into the Queen's Bench by certio-
• rari. Errors were assigned in the
process of outlawry, and that the
outlawry was founded on the judg-
ment of conviction of the matters m
the indictment, whereas certain of
the counts were bad. Joinder in er-
ror, that neither in the outlawry
nor in the pronouncing of the judg-
ment of conviction is there error.
Upon application on behalf of the
prosecutor, that the outlawry, which
was admitted to be bad, should be
reversed, and that the plaintiff in
error should be brought up for judg-
Fisn. Dig. — 45.
ment : — ^Held, that the court could
only reverse the outlawry, and
could not entertain the question of
error in the record of conviction.
Wright v. Reg, (in error), 14 Q. B.
148 ; 11 Jur. 103 ; 16 L. J., Q. B.
10.
Where a writ of error issued on
the application of a defendant to
bring up a transcript of the record
and proceedings on an indictment
for perjury, with all things touching
the same, and the writ was returned,
and the plaintiff in error assigned
errors, he could not afterwards ob-
ject that the proceedings on a rule
to arrest judgment, which had been
discussed in the court below, were
not mentioned in the return. Reg.
V. Dunn, (m error), 12 Q. B. 1026 ;
18 L. J., M. C. 41— Exch. Cham.
Where a writ of error is sued out
upon a judgment of the Queen's
Bench in a criminal prosecution, for
the purpose of enabling the parties
to effect a compromise of such pros-
ecution, that court has the power,
under the 12 & 13 Vict. c. 109, s.
39, to set aside such writ of error,
and will exercise that power. Reg.
V. AUeyne, Dears. C. C. 505 ; 4 El.
& Bl. 186 ; 1 Jur., N. S. 373.
After the writ of error has been
so set aside by the Queen's Bench,
the court of Exchequer Chamber
will set aside a judgment, signed
thereon by order of a judge, for
want of a joinder in error. AUeyne
V. Reg, (in eiTor), Dears. C. C. 505 ;
1 Jur., N. S. 869 ; 24 L. J., Q. B.
282— Exch. Cham.
When error is brought on a judg-
ment for felony, and the crown does
not join in error, the defendant will
be discharged. Rex v. Howes, 7 A.
& E, 60, n. ; 3 N. & M. 462.
So in error upon a conviction for
a misdemeanor. lb.
Where error is brought by a per-
son convicted of felony, from the
Queen's Bench to the Exchequer
Chamber, the general rules for gov-
erning the proceedings in error, in
civil cases, do not apply ; but the
594
ERROR AND APPEAL.
prisoner must be broagbt up to tbe
court, to pray oyer of the record,
and to assign errors by delivering
them in writing to the officer of the
court, and must be present during
the argument and the giving judg-
ment. The counsel representing
the attorney-general for the crown
may, if he pleases, orally join in er-
ror, Immediately on the assignment
of errors being delivered in. Man-
sell V. Reg, (in error), 8 El. & Bl.
64 ; Dears. & B. C. C. 375 ; 4 Jur.,
N. S. 432 ; 27 L. J.,M. C. 4— Exch.
Cham.
jRecognkances to Prosecute,] — It
IB ordered that there be laid before the
court of Queen's Bench, on the first
crown paper day in every term, a
list of the several cases in which
recognizances have been filed to
prosecute writs of error in misde-
meanor returnable in that court, to-
gether with the names of the several
cases in which default has been
made in prosecuting such writs of
error, according to the course and
practice of that court. Reg. Gen.,
Q. B., E. T. 16 Vict., 16 April., 1853 ;
lEl. & Bl. 693.
A prisoner in custody, under a
sentence of imprisonment for two
years on a conviction for a misde-
meanor, was discharged on bringing
a writ of error and entering into a
recognizance to prosecute the writ
with effect. No notice was given
to the prosecutor, nor was the rec-
ognizance duly filed in the crown
office. He was therefore ordered to
be recommitted. The judge's war-
rant, under which he was retaken,
directed his apprehension and re-
committal, stating it to be "in ex-
ecution of thejudgment in the pros-
ecution " : — ^Efeld, that the warrant
was good, and that it was not nec-
essary to state on the face of it how
long the renewed imprisonment was
to continue. Dugdale v. JReg, (in
error), 3 C. L. R. 74 ; 24 L. J., M.
C. 55 — ^B. C. — Crompton.
A defendant, being convicted and
sentenced to imprisonment, at the
sessions, for misdemeanor, brought
error in the Queen's Bench, and af-
terwards in the Exchequer Cham-
ber. In the latter court he entered
into a recognizance, conditioned, in
case of the affirmance of the judg-
ment, to surrender himself personal-
ly, to be dealt with " as our Court
of Exchequer Chamber may order."
This recognizance was filed in the
Queen's Bench. The defendant was
discharged out of custody by a j udge
at chambers. On motion in tine
Queen's Bench to apprehend and
recommit him : — ^Held,that the rec-
ognizance was before the court, al-
though not appearing in the afllda-
vits ; and that the recognizance was
not in conformity with 8 & 9 Vict,
c. 68, 8. 1, and that the rule must
be made absolute. Dugdale v. JReg.
(in error). Dears. C. C. 254 ; 2 EL
& BL 129 ; 17 Jur. 1097.
Paper Books.'] — ^A defendant in
error not having delivered paper
books to two of the judges, in pursu-
ance of rule 23 of the r^ulations in
the crown-office, and which rule
concludes by saying that "judg-
ment shall be given by the court
against the party n^lecting to de-
liver paper books to the judges, if
the court fdiall so please." The
court nevertheless directed the ar-
gument to proceed. Sill v. Reg.
in error), 17 Jur. 208, n. : & P. 16
.T.,N.S. 494.
i
2. TTAen an Appeal lies.
It is contrary to the policy of the
English law that there should be an
appeal in cases of felony. jBckdJee
JByramjee, Ex parte ^ 5 Moore, P.
C.C. 276; 11 Jur. 855.
3. Cowrt of Criminal AppecA.
Reservation of Points ofIjCBU>^
—The 11 & 12 Vict. c. 78, gives
no jurisdiction to the Court for
Crown Cases Reserved, to hear a
case stated from a criminal court on
RULES AND PRACTICE.
595
the sufficiency of an indictment, af-
ter judgment on demurrer to the in-
dictment. Reg, v. Faderman^ 4
New Sess. Cas. 161 ; T. & M. 286 ;
2 C. A K. 853 ; 14 Jur. 377 ; 19
L. J., M. C. 147.
The court has only jurisdiction
after a conviction over what takes
place during the trial. Ih.
A question i^sed in the court be-
low, in arrest of judgment, is a ques-
tion arising on the trial, and prop-
erly reserved. Seg. v. Martin^ 3
New Sess. Cas. 575 ; 1 Den. C. C.
398; T. A M, 78 ; 13 Jur. 368 ; 18
L. J., M. C. 137.
The recorder of a borough has
power to reserve questions of law
for the consideration of the judges.
Seg, V. Masters^ 3 New Sess. Cas.
326 ; 2 C. & K. 930 ; T. & M. 1 ;
1 Den. C. C. 332 ; 12 Jur. 942.
The court is bound to examine
the validity of an indictment, though
no question is reserved upon it.
Beg, v. Webby T. A M. 23 ; 1 Den.
C. C. 338 ; 2 C. & K. 933 ; 13 Jur.
42; 18L. J.,M. C.39.
The court will only consider
questions of law which shall have
arisen on the trial of a prisoner.
JReq. V. Clark, 1 L. R., C. C. 54 ;
12 Jur., N. S. 946 ; 36 L. J., M. C.
16 ; 15 W. R. 48 ; 15 L. T., N. S.
190.
Where a man was indicted for a
misdemeanor and pleaded guilty,
the court declined to consider wheth-
er be ought to have been indicted
for felony on the same facts. Ih,
The 11 A 12 Vict. c. 78, applies
to points of law ar^^ upon trials,
under special commissions, and aur
tborizes the court to reserve points
of law arising at the trial. Reg. v.
Bernard, 1 F. A F. 240.
On a charge of murder on the
hi^h seas, on board a British ship
aiu)at, the deceased having been
thrown out of a forei^ shin in a
foreign port, the question whether
all the facts must not be averred in
each count of the indictment, in
<»:der to give a judge sitting under
an ordinary commission of oyer and
terminer and general gaol delivery
jurisdiction to try the offence as it
arose on the record, is a point not
to be reserved. Reg. v. Menham, 1
F. A F. 369— Pollock.
What a jury says in recommend-
ing a prisoner to mercy ought not
to be made the subject of a case re-
served. Reg, V. TrdfUcocky D^rs.
A B. C. C. 453 ; 4 Jur., N. S. 123;
27 L. J., M. C. 103.
On a trial for murder, the name
of A., a juror on the panel, was
called; !B., another juror on the
same panel, appeared by mistake,
answerod to the name of A., and was
sworn as a juror. The prisoner
was convicted. The circumstance
that B. had answered, for A. was
not discovered till the next day,
when the judge, bein^ informed of
it, reserved the question as to the
effect of the mistake on the trial :
— ^Held, that the conviction ought
not to be set aside, on the ground
that there had been no mistnal, and
that the court had no jurisdiction
over the case. Reg, v. MeUor, 27
K J., M. C. 121.
The court cannot entertain ques-
tions of mere practice. Reg, v.
StiMsy 1 Jur., N. S. 1115.
Rail on,'] — Where a case has
been reserved upon a conviction for
an assault with intent to commit a
felony, the court will not deem it-
self bound to admit the prisoner to
bail until the decision of the point
reserved, even although the oiience
is only a misdemeanor, and the pris-
oner was admitted to bail of nght
previously to the trial. Reg.y.Birdy
5 Cox, 0. C. 11.
4. Rtdes and Practice.
Case.] — Where any case shall be
transmitted by a court of oyer and
terminer, or gaol delivery, or court
of quarter sessions, for the consid-
eration of the court, the original
case, signed by the judge or com-
missioner, or chairman of sessions.
596
ERROR AND APPEAL.
leserving the questioii of law, and
eeventeen copies of such case, one
for each ju^e and one for each
party, shall be delivered to the clerk
of the court at the Exchequer
Chamber, Westminster, at least four
days before the day appointed 'for
. the sitting of the court. Reg. Gen.
T. T. 13 V ict. Ist June, 1850, Exch.
Cham. ; 1 Den. C. C, App. ix.-xi. ;
T. & M., App. viL
Every case transmitted for the
consideration of the court is briefly
to state the question or questions of
law reserved, and such facts only
as raise the question or questions
submitted; if the question turns
upon the indictment, or upon any
count thereof, then the case must
set forth the indictment, or the par-
ticular count. Ih.
No case to be heard upon any de-
murrer to the pleadings. Ih,
Every case to state whether judg-
ment on the conviction was passed
or postponed, or the execution of
the judgment respited, and whether
the person convicted is in prison, or
has been discharged on recogniz-
ance of bail, to appear and receive
judgment, or to render himself in
execution. lb.
When any case is intended to be
argued by counsel or by the par-
ties, notice thereof to be given to
the clerk of the court, at least two
days previously to the sitting of the
court. lb.
With every case delivered to the
judges of the court (except such
cases as shall be reserved by such
judges) , the fee payable to the clerks
of the judges shall not exceed the
fee payable on demurrer and other
paper books, as contained in the
table of fees allowed and sanctioned
by the judges, pursuant to 1 Vict,
c. 30. Ih,
The court expects cases reserved
to be submitted in a complete form,
and will ordinarily refuse to send
back a case for amendment. Seg,
V. HoUoway, 1 Den. C. C. 870 ; 3
New Seas. Cas. 410 ; T. ifc M. 40 ;
13 Jur. 86 ; 18 L. J., M. C. 60.
Cases are not to be lengthy nar-
ratives of the facts. Reg, v. Stec^^
13 Jur. 41 ; 18 L. J., M. C. 30— C.
C.R.
The court, for the purpose of as-
sisting its judgment, will look at
the indictment, although not set out
in the case. Heg, v. WiUiamSy T.
& M. 382 ; 2 Den. C. C. 61 ; 20 L.
J., M. C. 106.
The judges will hear the arga-
ment oi points reserved, although
they appear on the record, and were
taken in arrest of judgment. Heg,
V. Martin, 2 C. & K 950 ; 8 Cox,
C. C. 447 ; 1 Den. C. C. 398.
If a counsel should think that
any material point raised at the
trial has been omitted in the state-
ment of the case, it would be prop-
er for him to communicate with the
judge who reserved the case, and
suggest any amendment that in his
judgment may be necessary. Heg,
V. SmUh, T. & M. 214 ; 14 Jiur. 92.
The o<Kii*t will not conader an
objection which has not been re-
served, even though it is &irly de-
ducible from the case itself, lb.
The court will not go into any
matter of evidence whidi occurred
at the trial, if it is not stated in the
case. Ih,
Where a case reserved has heea
restated by order of the court, an
application, supported by affidavit^
to have it agaia restated will be re-
fused, JReg, V. Studd, 14 W. R.
806 ; 14 L. T.,N. S. 633— C. C. R.
Signing,] — "WJiere the assizes are
held before two judges, and the one
of them who tries a criminal case,
after reserving a point for the con-
sideration of the Court of Criminal
Appeal, dies before the case is stat-
ed, the other judge may state and
sign the case. Heg. v. J^eather-
stone, Dears. C. C. 369 ; 18 Jur. 538;
23 L. J., M. C. 127.
Amending,'] — Where a case re-
served does not, in the opinion of
PUNISHMENT— PENAL SERVITITDE.
597
the counsel who were in it, fairly
raise all the points that were in
issue, the proper course is to apply
to the judge reserving to amend it.
Reg. V. SmUh, 4 Cox, C. C. 42.
The court will not send a case
back for amendment on the mere
application of counsel ; but will do
80 if on the argument it appears that
it is imperfectly stated. Reg, v.
HtUm, Bell, C. C. 20.
But the court will not send back
a case to be restated upon an objec-
tion which is beside the merits.
Reg, V. BrvmmiU^ 8 Cox, C. C. 418;
L. <fc C. 9 ; 3 L. T., N. S. 679.
Semble, per Cresswell, J., that
after verdict the court has no power
to amend a count so as to make a
jury par^ to the finding. Reg. v.
Harris^ 6ears. C. C. 344.
Argument <md JudgmerU. ] —
Where there is a difference of opin-
ion amongst the judges upon a
question oflaw, the case reserved will
be argued before the fifteen judges;
but where the court differs upon a
question of fact only, judgment
will be given according to the opin-
ion of the majority that a convic-
tion should be quashed. Reg. v.
Bvrrdl, L. & C. 354; 12 W. R.
149 ; 9 L. T., N. S. 426.
On the argument of a case re-
served before the Court of Criminal
Appeal, the counsel for the defend-
ant must begin. Reg. v. GateFvH'
ford, Dears. & B. C. C. 74.
Counsel will be heard in support
of a conviction on a case reseiwed,
though no one appears on behalf of
the prisoner. Keg. v. Martin, 1
Den. C. C. 398 ; 3 New Sess. Cas.
575 ; T. & M. 78 ; 13 Jur. 368; 18
L. J., M. C. 137.
A counsel who has appeared for
a prisoner at the trial, but has not
bc^n instructed to appear for him in
the Court of Appeal, may as am-
icus curiae cite authorities for the
information of the court, but will
not be allowed to argue. Reg. v.
Thomas, 12 W. R. 108 ; 33 L. J.,
M. C. 22 ; 9 L. T., N, S. 488.
Costs on.] — The judge who tries
a prisoner has power under 7 Geo.
4, c. 64, 8. 22, to allow the costs of
the prosecution on the hearing of a
case reserved for the court for con-
sideration of crown cases ; and the
officer of that court will tax and
ascertain such costs, and certify the
amount to the officer of the court
below. Reg. v. Lewis, Dears. &
B. C. C. 326 ; 7 Cox, C. C. 406 ;
8. P., Reg. v. Cluderoy, 8 C. & K.
205.
The court which has been direct-
ed to pass sentence on a prisoner,
after a point reserved for the decis-
ion of the Court of Criminal Ap-
peal, has power to allow the costs
mcurred in the latter court, and up-
on taxation, under an order to that
effect, the briefs and fees of two
counsel will be allowed. Reg, v.
WooUey, 4 Cox, C. C. 452 —Wil-
liams.
The court having no taxing offi-
cer, the costs of proceedings in that
court must be taxed in the court
below. Reg. v. Dolan, Dears. C.
C. 436 ; 1 Jur., N. S. 72 ; 24 L. J.,
M. C. 59.
The court will not entertain a
question of costs which is not with-
in their jurisdiction, although it is
expressly agreed by a case reserved
that the court should have the same
power, with respect to such costs,
as the judge could legally have ex-
ercised at the trial. Reg. v. Bom-
sea, Dears. C. C. 291.
LI. PlTNlSHMENT.
1. Penal Servitude, 597.
2. Returning therefrom^ 598.
1. Penal Servitude.
20 & 21 Vict- c. 3, amends the
16 & 17 Vict. c. dd, and abolishing
598
PUNISHMENT.
transportation^ aubstUutes penal pun-
ishment,
27 & 28 Vict. c. 47, amends the
Benal Servitude Acts, 16 & 17
Vict. c. 99, and 20 & 21 Vict. c. 8.
By 32 & 33 Vict. c. 99, the Hab-
itual Criminals Act, 1869, s. 8,
" where any person is convicted on
" indictment of any felony not pnn-
'^ ishable with death also, or the of-
" fence of uttering false or counter-
" feit coin, or of possessing counter-
" feit gold or silver coin, or the of-
" fenceof obtaining goods or money
" by false pretences, or the offence
" of conspiracy to defraud, or mis-
" demeanor under 24 & 25 Vict. c.
" 96, 8. 58, and he be proved to
" have been previously convicted of
" robbery, theft, assault with intent
"to rob, or obtaining goods or
" money by false pretences, uttering
" felse or coimterfeit coin, either
" before or after the passing of the
" act, then, in addition to any other
" punishment which may be award-
" ed to him, it shall be deemed to
" be part of the sentence passed on
" him, unless otherwise declared by
" the court, that he is to be subject
" to the supervision of the police as
"after mentioned for a period of
" seven years, or such less period as
" the court shall direct, commenc-
" ing from the time at which he is
"convicted, 'and exclusive of the
" time during which he is undergo-
" ing his punishment.
" Where anjr person is subject to
" the supervision of the police, he
" shall be guilty of an offence pun-
"ishable (on summary conviction
" before two or more justices or a
" stipendiary magistrate) with im-
" pnsonment, with or without hard
" labour, for a term not exceeding
" one year, under the following cir-
" cumstances, or any of them :
" First. If, on his being charged
" by a constable or police offi-
"cer with getting nis liveli-
" hood by dishonest means, he
" iails to make it appear to the
"justices or magistrate before
" whom be is brou^t that he
"is not getting bis livelihood
" by dishonest means :
" Secondly. If he is found by any
" constable or police officer in
" any place, whether public or
"private, under such eircum-
" stances as to satisfy the jus-
" tices or magistrate before
" whom he is brought that be
" was about to commit or to
" aid in the commission of any
" crime punishable on sum-
" mary conviction or indiot-
" ment, or was waiting for an
" opportunity to commit or aid
" in the commisacm of any such
" crime :
" Thirdly. If he is found by any
" person in or upon any dweli-
" mg- house, or any building,
" yard or premises, being par-
" eel of or attached to such
" dwelling-house, or in or upon
" any shop, warehouse, coont-
" ing-house, or other place of
"business, or in any garden,
" orchard, pleasure-ground or
" nursery.ground, without be-
" ing able to account to the
" satisfaction of the justices or
" magistrate before whom he
" is brought for his being found
" on such premises.'*
2. Returning therefrom.
5 Geo. 4, c. 84; 11 Geo. i ^ I
Fifl.4, c. 89;4<fc5 rtfl.4,c.67;
1 Vict. c. 90 ; 4^5 Viet. c. 56 ; 16
^ 17 Viet. c. 99.
By the word transportation in 8
Geo. 3, c. 15, was meant not mere-
ly the convejring of the felon to the
place of transportation, but his be-
ing so conveyed and remaining
there during the term for which he
was ordered to be transported ; and,
therefore, a felon attainted was not
by that statute restored to his civil
rights till after the exjnrationof the
term for which he was ordered to be
so transported. JSuUock v. DodAy
2 B. & A. 258.
Where a prisoner was convicted
RETURNING THEREFROM.
599
of peijury at the assizes at Chester,
and the sentence of transportation
was entered on the recoini as foU
lows: — "Wherefore, all and an-
gular the premises being seen by
the justices here, and fully under-
stood, it is therefore ordered that he,
the said L. K., be transported to the
coast of New South Wales, or some
<me or other of the islands adjacent,
for and during the term oi seven
years'*: — Held, on error, that this
was no judgment, but merely an or-
der, liex V. JSjsnworthyy 3 D. & R.
173; 1 B. & 0.711.
A judgment entered upon the
record, that J. M. " be transported
beyond the seas for the term of ten
years, from the 8th day of August
mstant," wifliout specifying some
place of transportation, " not in
Europe," is collect and valid, not-
withstanding. Martin v. JReg. 3
Cox, 0. 0. 319.
The king's sign manual may be
given in evidence by the prisoner,
on an indictment for retummg from
transportation ; and if not revoked,
and the condition is literally, though
not substantially, complied with, it
>ill discharge the prisoner from that
intlictment. Hex v. MiUer^ 2 W.
BL797 ; 1 Leach, 0. 0. 74.
-A judgment of transportation for
fourteen years, if bad for excess, is
^8.1 in toto, and cannot operate as
* g^id judgment of transportation
for Bfcren years. RexY, MUis.^J}.
& R. 73.
^ Whe^ 2^ court of quarter ses-
sions pftbi^ an erroneous judgment
of transpc^^i^jj^ ^^^ court would
not ^'^^ ' back to be amended,
but would ^verse it on writ of er-
ror, before 1.^ 12 Vict. c. 78, s. 5.
IK
An indictmci ^j. ^^:^^^ ^^ ^^^^
after an order f transportation,
stated that the ^^^^ ^^^
itally convicted t ^^i^ ^^^^ ^^
1818 ; and that m^ ^^ extend-
ed to him on conditiv^f ^^^ ^.
transported tor lite ^^^ ^^
Vu^vnnrl the seas : and . v ^^ „
beyond the seas
at he was
thereupon ordered to be transported
to New South Wales, or to some of
the islands adjacent; and it ap-
peared that the condition on which
mercy was granted was not gen-
eral, but specific, that he should be
transported to New South Wales,
or some of the islands adjacent : —
Held, a fatal variance. JRex v. JFHtz-
Patrick, R. & R. 0. 0. 512.
An indictment on 56 Greo. 3, c.
27, 6. 8, for being at large after
sentence of transportation, should
set forth the effect and substance of
the former conviction; so likewise
should the certificate of the former
conviction. JRex v. Watson^ R. &
R. 0. 0. 468 ; S. P., JRex v. Sut^
diffe, R. & R. 0. 0. 469, n.
A prisoner convicted of a capital
crime, whose sentence is respted
during the king's pleasure, and who,
on having received pardon on con-
dition of transportation for life, is
afterwards found at large in Great
Britain, without lawful cause, will
be referred back to his original sen-
tence. JRex V. Madan, 1 Leach, 0.
0. 223.
A return to a habeas corpus to
bring up two prisoners detained in
Millbanx prison, set out an act of
the Royal Court of Jersey, where-
by they were convicted of burglary
by that court (which was alleged
to be a competent court to try and
punish that crime), and sentenced
to be transported to such place as
her Majesty in council should order.
It also set out an order in council
directing the place of their trans-
portation, and a warrant of the sec-
retary of state for their removal to
IViillbank prison, in order to carry
the sentence into effect, and as au-
thority to the keeper of that prison
to receive them : — Held, that the
court was bound to presume that
the sentence being passed by a
court of competent junsdiction, and
unreversed, was warranted by law
and valid. Reg. v. JBrenan^ 10 Q«
B. 492 ; 11 Jur. 775 ; 16 L. J., Q.
B. 289.
600
ESCAPE, RESCUE, AND PRISON BREACH.
The judge, before whom a pris-
oner is tried for returning from
transportation, has power to order
the county treasurer to pay the
prosecutor the reward under 5 Geo.
4, c. 84, B. 22. Ee^, v. Emmojis^
2 M. & Rob. 279 — Coleridge. 8,
P., Meg, V. Ambury^ 6 Cox, C. C.
79— Williams.
On the trial of an indictment
aeainst a person for being at large
without lawful cause before the ex-
piration of his term of transporta-
tion, a certificate of his former con-
viction and sentence was put in : it
purported to be that of J. G., dep-
uty clerk of the peace for the
coimty of L., and clerk of the
courts of general quarter sessions
of the peace holden in and for the
said county, and having the cus-
tody of the records of the courts
of general quarter sessions of the
peace holden in and for the said
county. It was proved that Mr.
H. was clerk of the peace of L.,
and that he had three deputies,
partners, of whom J. G., who had
signed the certificate, was one ; and
that each of them acted as clerk df
the peace ; and that for forty years
they had kept the sessions records
at their office: — Held, sufficient
proof of the conviction and sen-
tence under 5 Geo. 4, c. 84, s. 24.
Reg, V. Jones, 2 C. & K. 524—
Coltman.
Where a prisoner was indicted
under 5 Geo. 4, c. 84, s. 22, for
being found at large in England
before the expiration of a term for
which he had been sentenced to be
transported : — Held, that the fact
of such sentence being in force at
the time he was so found at large,
was sufficiently proved by the cer-
tificate of his conviction and sen-
tence, the judgment remaining un-
reversed ; although, on the face of
such certificate, it appeared that
the sentence was one which could
not have been inflicted on him for
the offence of which, according to
such certificate, he had been com-
mitted. JReg, V. Fmney, 2 C. &
K. 774— Alderson.
Under 9 Vict. c. 24, s. 1, the
judge had the power of reducing
the punishment of transportatbn
for lue under 4 <fc 5 Will. 4, c. 67,
for the offence of being at laige
before the expiration of the term
for which the prisoner had been
ordered to be transported, and migbt
under the latter statute sentenee
the prisoner to be transported for
any term less than seven years after
the imprisonment, directed by the
earlier statute li^g^ t. Larnby 3
C. & K. 96— Williams.
A certificate of previous convic-
tion for felony, prepared under 7
&i 8 Geo. 4, c. 28, s. 11, is good
evidence of his conviction and sen-
tence, on an indictment for return-
ing from transportation before the
expiration of a sentence under 5
Geo. 4, c. 84. Meg, v. Jjn^lnary^ 6
Cox, C. C. 79— Williams.
In an indictment under 5 Geo. 4,
c. 84, s. 22, it is necessary to aver
that the prisoner was feloniously at
large before the expiration of his
sentence, and an inaictment omit-
ting the word "feloniously" is Iwrf
Reg, V. Home, 4 Cox, C. C. 263.
LH. Escape, Rescue, and Rti^^
Breach.
4 ©60.4,0.64; 7 <* 8 (^*»
c. 28; 1 cfc 2 Geo, 4,c.88; '^J^
4 A I Vict, c. 91 ; 7 WU'^ ^ ^
Vict. c. 90 ; 28 c* 29 F*- ^- ^^^'
m
A prison-breach, or ^^^^ ^ *
common-law felony, i*"® ^'^
breaking out of pri»> ^\ rescued,
is a convicted felon,'*^^ iV^ ^'
ishable as a comm^ law felony by
imi>risonment. P ^- ^^^jw^, K
& R. C. C. 458. ...
The offence f^^^"^g » "^^""^
at war to esca'^^ ^P^ complete, if
such prisoner' ^^^^^ *" «<>n<^J^
with those /f 7^?^ chaise he
is, merely t*®^^ *® defendant,
PARDON.
601
and has no intention to escape. JRex
V. Martin, R. & R. C. C. 196.
An indictment at common law,
for aiding a prisoner's escape, should
state that the party knew of his of-
fence. Eex V. Yoimg, 1 Russ. C.
& M. 291.
A delivery of instruments to a
prisoner to facilitate his escape from
gaol was within 16 Geo. 2, c. 31,
although he had been pardoned of
the OTOnce of which he was con-
victed on condition of transporta-
tion. JRex Y. ShaWy R. & R. C. C.
626.
Throwing down, in attempting
to escape, loose bricks at the top of
a prison wall, placed there to im-
pede escape and give alarm, is a
prison - breach, though they are
thrown down by accident. liex v.
HamjoeU, R. & R. C. C. 458.
A warrant of a justice of the
peace to apprehend a party, found-
ed on a certificate of the clerk of
the peace, that an indictment for a
misdemeanor had been found against
such party, is good, and therefore if
upon such a warrant the party is
arrested and afterwards rescued,
those who are guilty of the rescue
may be convicted of a misdemean-
or. Rex V, Stokes^ 5 C & P. 148
— ^Park.
It is a misdemeanor, indictable
at common law, to aid a person to
escape from custody, though he
was confined under the remand of
the conunissioners for the relief of
insolvent debtors, and not on any
criminal charge. Reg. v. AUan,
Car. & M. 295 ; 5 Jur. 296— Ers-
kine and Wightman.
By 4 Geo. 4, c. 64, s. 43, if any
person shall deliver to a prisoner in
any prison any instrument proper
to facilitate his escape, such person
shall be deemed to have delivered
it with intent to aid and assist such
prisoner to escape ; and if any per-
son shall by any means whatever
aid and assist any prisoner to es-
cape from any prison, every person
so offending, whether an escape be
actually made or not, shall be
guilty of felony : — ^Held, that, in
an indictment under this section, it
was not necessary to set out the
means which had been used by the
defendant to lassist the prisoner to
escape. Reg, v. JToUotoay, 15 Jur.
825 ; S, C, nom. Hodcvxty v. Req,
(in error), 2 Den. C. C. 287 ; 17 Q.
B. 819.
The act of aiding and assisting
being a felony by 4 Geo. 4, c. 64, s.
43, me defendant might be indicted
before the principal had been tried ;
and the prosecution need not be in-
stituted within one year after the
offence committed, as required by
16 Geo. 2, c. 31, s. 4. lb.
The 28 & 29 Vict. c. 126, s. 37,
enacts that any person who, with
intent to facihtate the escape of
any prisoner, conveys into any pris-
on any mask, dress, or other dis-
guise, or any letter, or any other
article or tMng, shall be guilty of
felony : — Held, that a crowbar came
withm the .words " any other ar-
ticle or thing " as used in this sec-
tion. Reg. V. Payne, 1 L. R., C.
C. 27 ; 12 Jur., N. S. 476 ; 35 L.
J., M. C. 170 ; 14 W. R. 661 ; 14
L.T.,N.S.416.
The forcible rescue of a person
from unlawful custody is illegal,
Reg. V. ALmey, 3 Jur., N. S. 750 —
Erie.
LIII. Pabdon.
A. was, at the Spring Assizes of
1846, indicted for stealmg a horse
on the 26th day of February, 1841.
He had, in 1842, been convicted of
felony, and sent to the hulks, from
which he was discharged in 1846.
He produced a certificate of his dis-
charge, which stated, that " J. H.,
who was convicted at Worcester,
on the 22nd June, 1842, is this day
discharged in consequence of hav-
ing received a free pardon": —
Held, that, if this pardon had been
regulitrly proved, it would have
602
APPREHENSION AND ARREST.
been no bar to the charge of horse-
stealing, as the pardon was express-
ly contined to another felony, Reg.
V. Harrod, 2 C. & K. 294; 2 Cox,
C. C. 242— C. C. R.
A convict sentenced to death for
felony, which sentence was com-
muted to transportation for life, re-
ceived a conditional free pardon in
the penal colony : — Held, that such
pardon did not alter the effect of
the attainder in vesting his prop-
erty in the crown. Churchy In re,
16 Jur. 517.
The 5 Geo. 4, c. 84, s. 26, pro-
tects felons who have received a
remission of their sentences in the
enjoyment of all propertv acquired
by them since their conviction, and
not merely such property as has
been acquired by tneir own indus-
try. 0<mgh V. Davies^ 2 Kay &
J. 623 ; 25 L. J., Chanc. 677.
LIV. Appkehension and Aeekst
OP Oppendkbs.
1. Statutes, 602.
2. Btf Constables and PriwUt Indi-
viduals, 602.
3. Warrant of Justices, 605.
4. Bench Warrants, 606.
1. Statutes.
10 Geo. 4, c. 44, «. 7 ; 2 c* 8
Vict. c. 47, S8. 68, 64, 65, 66 ; 6 c*
7 Vict. c. 34; 11 cfc 12 Vict. c. 42;
16<fcl7 Vict. c. US.
Under the Larceny Act, 24 & 25
Vict. c. 96, 8. 104 ; for malicious
injuries to property, 24 & 25 Vict.
0. 97, s. 57 ; for offences against
the coinage, 24 & 25 Vict. c. 99, s.
81^'; for offences against the person,
24 & 25 Vict. c. 100, s. 66.
By 14 & 15 Vict. c. 19, s. 11,
" after reciting that doubts have
*' been entertained as to the author-
" ity to apprehend persons found
'^ committing indictable offences in
^'the night, it is enacted, that it
''shall be lawful for any person
" whatsoever to apprehend any per-
'' son who shall be fomid commit-
'' ting any indictable offence in f^e
" nignt, and to convey him or de-
" liver him to some constable or
" other peace officer, in order to his
" being conveyed, as soon as con-
'' veniently may be, before a justice
" of the peace, to be dealt with ac-
" cording to law."
2. By Constables and Private Indi-
viduals.
A constable is not justified in
taking a person into custody for a
mere assault, unless he is present at
the time. Cmipey v. Herdey^ 2
Esp. 540— Evre.
Using loua words in the street,
though disorderly, is not an offence
for which a party should be taken
into custody. Hardy v. Murphy^
1 Esp. 294— Eyre.
If a party is turning towards 1^
wall ill a street on a particular oc-
casion, a watchman is not justified
in collaring him to prevent him so
doing. Sooth V. Hmdey^ 2 C. ft
P. 288— Abbott.
If a constable is preventing a
breach of the peace, and any per-
son stands in his way to faiiider
him from so doing, the constable is
justified in taking such person into
custody, but not in giving him a
blow. Levy v. Edioards^ 1 C. ft
P. 40 — ^Burrough.
A peace-officer may justify an
arrest on a reasonable charge of
felony without a warrant, althou^
it should afterwards appear that no
felony had been committed; but a
private individual cannot. Smtud
V. Payne^ 1 Doug. 859.
A constable having reasonable
cause to suspect a person of felony
may arrest mm, though it appeals
no felony was committed. BeA-
vnth V. Philby, 6 B. ft; C. 635 ; 9
D. ft R. 487 ; Bobbs v. Brandt-
comb, 8 Camp. 420 — Ellenboroogfa.
A constable is justified in appre-
hending a person chained on sus-
picion of felony, if he has reasons-
BY CONSTABLES, ETC.
603
ble or probable cause to believe
that the party charged is the felon.
Davis y. Jitiss^, 2 M. A P. 590 ;
5 Bing. 354.
When a private person appre-
hends another on suspicion of fel-
ony, he does it at his peril, and is
liable to an action unless he can
establish in proof that the party
has actually been guilty of felony.
Adams v. Moore^ 2 Selw, N. P.
910 ; S. P., AUm v. Wright, 8 C.
<fc P. 522.
If a reasonable charge of felony
is made against a person who is
given in charge to a constable, the
constable is bound to take him, and
he will be justified in so doing, al-
though the charge may turn out to
be unfounded. Coides v. Dtmbar,
2 C. & P. 565; M. & M. 37— Ab-
bott.
A constable arresting one on sus-
picion of felony, is bound to take
him before a magistrate as soon as
he reasonably can, and he cannot
justify detaining him three days
without going before a magistrate
in order that evidence may be col-
lected in support of the prosecu-
tion. Wright v. Cownf, 6 D. & R.
628 ; 4 B. & C. 596.
A constable, having taken a pris-
oner on suspicion of felony, has no
right to handcuff him, except he
has attempted to escape, or except
it is necessary in order to prevent
his escaping. lb.
Watchmen and beadles have au-
thority at common law to arrest
and detain in prison, for examina-
tion, persons walking the streets at
night whom there is reasonable
ground to suspect of felony, al-
though there is no proof of a fel-
ony having been committed. Law-
rence V. Sedger, 3 Taunt. 14,
Watchmen may imprison any
person who encourages prisoners in
their custody to resist. White v.
Edrntrnds, Peake, 89 — Kenyon.
Suspicion that a party has on a
former occasion conmiitted a mis-
demeanor, is no justification for
giving him in chaige to a consta-
ble without a justice's warrant;
and there is no distinction in this
respect between one kind of misde-
meanor and another, as breach of
the peace and fraud. Fox v.
Oaura, 3 B. & Ad. 798.
A woman died after a very short
illness ; rumours were generally in
circulation in the neighborhood
where she had lived that her bus-
band had poisoned her, and a great
crowd was collected in front of his
house ; upon which the con^^table of
the parish, without any warrant,
took him into custody, and con-
veyed him before a magistrate, who
detained him till medical men had
reported the cause of death, and
then discharged him : — ^Held, that,
if the jury was of opinion that the
constable had reasonable ground of
suspicion to justify the apprehen-
sion, an action could not be main-
tained for the arrest. Nicholson v.
Hardwicky 5 C. & P. 495 — Gumey.
Where the crew of a Dutch
ship had mastered the vessel and
ran away with her, and brought her
into Deal, it was held that they
mieht be seized and sent back to
Holland. Mure v. Kay, 4 Taunt.
43.
If a man is found attempting to
commit a felony in the night, any
one may apprehend and detain him
until he can be carried before a mag-
istrate. Rex V. Hura, 1 M. C. C.
93.
A charge to a constable, on tak-
ing a person into custody, that he
has a forged note in his possession,
without anything more, is defective,
though the defect is immaterial, it
not being necessary that the charge
should contain the same accurate
description of the offence as an in-
dictment. Rex V. Ford, R. & R.
C. C. 329.
A constable is not justified in
apprehending a person as a receiver
of stolen goods on the mere asser-
604
APPREHENSION AND ARREST.
tioD of the principal felon. Isaacs
V. Brand, 2 Stark. 167— Ellenbo-
rough.
A wilful trespass on another per-
son's property, without doing any
real damage, is not sufficient to jus-
tify the apprehension of the parties
under 1 Geo. 4, c. 56, s. 8 (since re-
pealed, but re-enacted by 7 & 8
Geo. 4, c. 30). Butler v. Turley, 2
C. & P. 585 ; M. & M. 54— Best.
A., a hawker, went to the house
of B. to sell goods, and a dog of B.
coming out of the house, A. knock-
ed out one of his eyes, for which
B.'s wife caused A. to be appi'e-
hended : — Held, that it was for the
jury to say whether A. had struck
the do^ for his own preservation,
and fau-ly to protect himself; or
whether it was a wilful and mali-
cious trespass on his part. To jus-
tify the apprehension of an offender
under the Malicious Injuries Act,
7 & 8 Geo. 4, c. 30, the offender
must be taken in the fact, or on
a quick pursuit. Hanway v. BovU-
bee, 4 C. & P. 350 ; 1 M. & Rob.
15— Tmdal.
A person justified, under the 7 &
8 Geo. 4, c. 30, in causing the arrest
of another, must do it immediately,
and he must send him by the direct
road to the lock-up ; for if he sent
him extra viam, he would be a tres-
passer against the person so arrest-
ed. MorrU v. Wise, 2 F. & F. 51
— ^Byles.
A. went to a house at night, de-
manding to see the servant. He
was told to depart, and would not.
A constable was sent for, and A.
went from the house to the garden.
When the constable arrived, A.
said that if a light appeared at the
windows he would break them ;
upon which the constable took him
into custody : — Held, that the con-
stable was not justified in so doing.
Rex V. Bright, 4 C. & P. 887—
Parke.
A private person is not justified
in arresting or giving in charge of a
policeman, without a warrant, a
party who has been engaged in an
affray, unless the affray is still con-
tinuing, or there is reasonable
ground for apprehending that he in-
tends to renew it. Price v. Seeleg,
10 C. & F. 28.
In an action by A. against B. for
false imprisonment, B. justified on
the ground of A. having wilfiilly
and without excuse, withm view of
the constable who apprehended her,
annoyed and disturbed the defend-
ant and his family by knocking aod
ringing at his door : — ^Held, that to
support this plea, under sections 54
and 63 of 2 <fc 3 Vict. c. 47 (Metro-
politan Police Act), it was neces-
sary to prove the offence to hxve
been conmiitted within view of the
constable. Simmons v. MiQengen, 2
C. B. 624 ; 10 Jur. 224 ; 15 L. J.,
C. P. 102.
A police constable of the city of
London has no power, under 2 & 3
Vict. c. xciv., to take a person into
custody without a warrant, merely
on suspicion that he has committed
a misdemeanor. Bowditck v. Bal^
chin, 5 Exch. 378.
A constable is not justified in
shooting at a man whom he had
seen stealing wood growing in a
copse (which, if a first offence, is
only a misdemeanor), althou^ the
const^able has no means of arresting
the man vdthout firing, and al-
though the stealing the wood in the
particular instance amounted to fel-
ony, by reason of the man havisff
been previously convicted eeverw
times for similar offences under 7 &
8 Greo. 4, c. 29, s. 39, these convic-
tions being unknown to the con-
stable at the time. Beg. v. Dadstn^
T. & M. 385 ; 2 Den. C. C.35 ; 20
L. J., M. C. 57.
If a constable sees an assault com-
mitted, he may recently after that
assault, and oefore all danger of
further violence has ceased, appre-
hend the offender; and if in so do-
ing he is resisted and assaulted, the
person assaulting is liable to be oon-
victed of assaultmg a constable in
WARRANT OP JUSTICES.
605
the executioii of his duty. Heg, v.
Light, 7 Cox, C. C. 389 ; Dears. &
B. C. C. 332 ; 27 L. J., M. C. 1.
If a person is guilty of an assault
and battery, a policeman who is
present and sees the offence com-
mitted, is justified in taking the of-
fender at once into custody without
warrant, in order to take him be-
fore a magistrate to answer for the
offence ; and if such a pei*6on is so
taken into custody, he cannot main-
tain an action against a bystander
for directing the policeman so to
take him into custody. Derecourt
V. CorUshley, 1 Jur., N. S. 870 ; 24
L. J., Q. B. 313 ; 5 El. & Bl. 188.
3. Warrant of Justices.
General warrants are illegal and
void. Money v. Leach^ 1 W. Bl.
555.
A warrant to arrest the party
" to the end that he may become
bound, &c., at the next sessions,"
means the next session after the ar-
rest ; therefore the officer may jus-
tify an arrest after the sessions next
ensuing the date of the warrant.
Mayhew v. Parker, 8 T. R. 110 ; 2
Esp. 683.
A warrant issued by a magistrate
for the apprehension of a party to
answer a charge, should state the
specific offence with which the party
is charged, and that information
thereof was duly made on oath be-
fore the magistrate. Caudle v. Sey-
mour, 1 G. & D. 454 ; 1 Q. B. 889 ;
5 Jur. 1196.
Semble, that a magistrate has the
power of apprehending and of re-
quiring bail of a libeller, and for
want of it, of committing him.
JStvtt V. Conant, Grow, 84. See Hay-
locks Y. Sparke, 1 El. & Bl. 471 ;
17 Jur. 731 ; 22 L. J., M. C. 67.
A warrant directing police offi-
cers to apprehend a party, and in
safe custody to keep, so as to have
his body before her Majesty's jus-
tices of the peace at the next ses-
sions, is ill, and such custody is ille-
gal. NisheU, Ex parte, 8 Jur. 1071
— B. C. — Patteson.
A British subject arrested abroad
under a warrant upon an indict-
ment for a misdemeanor, brought
in custody to England, and there
committed to prison, is not entitled
to be discharged. Ex parte Scott,
4 M. & R. 361 ; 9 B. & C. 446.
A warrant was issued by a jus-
tice of a county, directed to the con-
stable of the township, and general-
ly to all her Majesty's oflicers of the
peace in and for the county, com-
manding them, or some of them,
forthwiwi to apprehend G. and con-
vey him before two justices to an-
swer for not obeying a bastardy or-
der for payment of money. The
warrant was delivered to the super-
intendent of police, and had subse-
quently been in the possession of D.,
one of the police constables. After-
wards D. and S., police constables,
while on duty in uniform, arrested
G. imder the warrant, but they had
it not in their possession at the time
of the arrest, it being at the station-
house. G. was rescued by sev-
eral persons, who assaulted the con-
stables, whereupon informations for
the rescue and assault were laid
against the parties by the con-
stables, and at the hearing before
justices the complaint as to the res-
cue was withdrawn, and that for
the assault proceeded with, and the
parties were convicted : — ^Held, that
the conviction was bad, as the ar-
rest by the constables was illegal,
they not having the warrant in their
possession at the time. Galliard v.
Laeeton, 9 Cox, C. C. 127 ; 2 B. &
S. 363 ; 31 L. J, M. C. 123.
Held, also, that the withdrawal
of the information as to the rescue
was no bar to proceeding with the
complaint as to the assault. lb.
On a Sunday.'] — The exception,
in 29 Car. 2, c. 7, s. 6, that process
may be executed on the Lord's day,
in case of treason, felony or breach
606
SEARCH WARRANTS.
of the peace, extends to all indict-
able offences, and is not restricted
to treason and felony, and such
misdemeanors as involve an actual
breach of the peace. Eawlins v.
Mis, 10 Jur. 1039 ; 16 M. 4fc W.
172; 16 L. J., Exch. 5.
4. Bench Warrants,
Bench warrants should not be
granted unless it is necessary that
uie party charged should be at once
taken into custody. Heg, v. Whit-
taker, 2 F. A F. 1— mil.
The court will not issue a bench
warrant to bring up a witness, al-
though it is sworn that he is keep^
ing out of the way collusively, and
that his evidence is so material to
the prosecution that the case can-
not go on without him, but will
postpone the trial to allow the wit-
nesses recognizances to be estreated
on his non-appearance when called.
Heg, V. Crawford, 6 Cox, C. C.
481.
A warrant of a judge of the
Queen's Bench issued, directed to
the governor of a gaol, constables,
&c., directing them to apprehend
and take a party against whom a
bill for a misdemeanor had been
found at quarter sessions, and him
safely keep, to the end that he may
become bound and iind sufficient
sureties to answer the indictment,
and be further dealt with according
to law, is a bad warrant, for not
directing that the party should be
brought before some judge or jus-
tice to be bound. JReg, v. Doumey,
7 Q. B. 281 ; 9 Jur. 1073 ; 15 L. J.,
M. C. 29.
LV. Search Wabbants.
By 11 & 12 Vict c. 42, s. 4, « it
" shall be lawfal for any justice or
"justices of the peace to grant or
"issue any search warrant on a
" Sonday as well as on any other
" day."
By 24 & 25 Vict. c. 96, (Larceny
Consolidation Act,) s, 108, "if any
" credible witness shall prove upon
" oath before a justice of the peace
" a reasonable cause to suspect that
"any person has in his possession,
" or on his premises, any property
" whatsoever, on or with respect to
"which any offence, punishable
"either upon indictment, or upon
" summary conviction by virtue of
" that act, shall have been commit-
" ted, the justice may grant a war-
"rant to search for such property
" as in the case of stolen goods."
For forged instruments^ eee2iis
25 Vict. c. 98, 8. 46 ; for coiaUerfeU
coin, and coming implements j2i is
25 Vict. c. 99, s. 27 ; and for gm-
powder <md eoyflosive substances, 24
& 25 Vict. c. 97, s. 55.
A positive oath that a felony is
actually committed is not necessary
to justify a magistrate in giantio^
his warrant to search the premises
and apprehend the person of a narty
suspected of felony. JElsee v. &m^
1 D. & R. 97 ; 2 Chit. 304.
Where a constable, having a war-
rant to search for certain specific
goods alleged to have been stoloi,
found and took away those goods,
and certain otiiers also supp<^ed to
have been stolen, but which were
not mentioned in the warrant, and
were not likely to be of use in sub-
stantiating the charge of stealing
the goods mentioned m the warrant:
— Held, that the constable wasliable
to an action of trespass. (Mmsr v.
Gundy, 6 B. & C. 232 ; 9 D. & R.
224.
Excise officers w^it with a search
warrant, and, at the desire of the
Earty, gave it him to peruse, when
e i-efused to return it : — ^Held, that
they had a right to take it from him,
ana even to coerce his person to ob-
tain the possession of it, provided
they used no more violence than
was necessary. Rex v. Miiton, 3 C
& P. 31— Tenterden : & C. nom.
Bex V. MiUon, M. & M. 107.
As to the proper mode of execo-
ARTICLES OF THE PEACE — WHEN EXHIBITED. 607
ting search warranjbs, see EnHck y.
Oarrinffton, 19 St. Tr. 1030.
LVL Abticles op the Peace.
1 . When exhibited generally, 607.
2. Justices, 608.
S. On passing Sentence, 609.
4. Practice, 609.
1. When eachihited generally.
Articles of the peace ought to be
exhibited in the neighbourhood, that
the security may be given there.
Bex V. Waite, 2 Burr. 780 ; 2 Ld.
Ken. 511.
Where a person exhibits articles
of the peace, and swears that her
life is in danger, the truth of the
&cts cannot be controverted. Lord
Vane^s case^ 13 East, 172, n.
There ought to be a reasonable
foundation on the face of the articles,
to induce a fear of personal danger,
before the court will require sureties
of the peace. ' lb.
The facts stated in the articles
are to be considered as true till the
contrary appears upon a proper
prosecution. Jb,
One, against whom articles of
the peace are exhibited, is not en-
titled to read affidavits on his be-
half, in contradiction of the facts
sworn to against him in such arti-
cles. Hex V. DoheHyy 13 East, 171.
Upon articles of the peace exhib-
ited, the court has power of requir-
ing bail for such a length of time as
they think necessary for the preserv-
ation of the peace, and are not con-
fined to a twelvemonth. Rex v.
Bowes, 1 T. R. 696.
When articles of the peace ap-
peared malicious and untrue, the
court stayed process on them, and*
committed the exhibitant for per-
jury. Rex V, Pamell, 2 Burr, 806.
The court cannot interfere to re-
duce tl\e amount of security which
the magistrates require a party to
give for the preservation of the
peace. Rex v. HoUoway^ 2 D. P. C.
525.
A party gave information on oath
before a magistrate, that, from cer-
tain language used towards him, he
was in bodily fear from another,
and the magistrate, upon hearing
the complaint, required the latter to
enter into recognizances to keep the
peace. On motion to discharge the
recognizances, on the ground that
the language was used in a meta-
phorical sense only, the court refus-
ed to interfere, because it was for
the magistrates to judge in what
sense the language was used. Rex
V. Tregarthen, 5 B. & Ad. 678 ; 2
N, & M. 379.
The power of justices to rec^uire
sureties to keep the peace is derived
from the commission of the peace,
and it is confined to cases where a
party makes it appear to the justices,
that he goes in fear and in dan-
ger of personal violence from anoth-
er, hj reason of threats employed
by him, or by reason of looks, ges-
tures and conduct ; but the party ap-
S lying for protection must himself
raw the inference that he is in fear
of personal violence. Reg. v. Dunn^
1 Am. & H. 21 ; 5 Jur. 721 ; 12 A.
& E. 599.
H. had written a letter to a young
lady, a relative of T. ; T. afterwards,
in conseq^uence of his writing the
letters, violently assaulted H., and
said, " If you write again, I wiU
flog you within an inch of your
life." On a subsequent occasion,
T. meeting H., said to him, ^' Re-
member what I said to you ; I am
determined to put a stop to your
proceedings. " The court permit-
ted H. to exhibit articles of the
peace against T. HuUbj Ex parte^
21 L. J., M. C. 21— B. C— Wight-
man.
It is sufficient ground for articles
of the peace that the complainant
has been accustomed to go to a par-
ticular place, rightfully, as he al-
leges, for the transaction of business,
and has been threatened with vio-
608
ARTICLES OP THE PEACE.
lence if he goes there again. Meg.
V. Maliimm, 16 Q. B. 367.
The court will, if it sees ground,
require sureties of the peace, al-
though justices have refused to do
so on the same complaint. lb,
2. Justices,
A justice of the peace is not au-
thorized to require a party to find
sureties to keep the peace for an
unlimited time. Prickett v. GrcOreXy
2 New Sess. Cas. 429 ; 8 Q. B. 1021 ;
10 Jur. 566 ; 15 L. J., M. C. 145.
It is not necessary that a commit-
ment for want of sureties should
mention the sum in which the party
and his sureties are to be bound. lb.
A warrant of commitment, in
substance stated, that whereas the
plaintiff had been brought before
the defendant (who was a justice),
charged on the oath of T. P. with
having written on the pavement in
a lane the offensive words refiect-
ixMZ on the character of R. T. W.,
" Donkey Watt, the railway jack-
ass " ; and it having been stated to
tJie defendant on the oath of T. P.
that the continued writing for some
time past of the offensive words was
calculated to produce a breach of
the peace, and T. P. prayed that
the plaintiff might be required to
find sureties to keep the peace, he,
the defendant, ordered and adjudg-
ed that the plaintiff should enter in-
to his own recognizances in 20/.,
with two sufficient sureties in 15/.
each, to keep the peace for three
calendar months. The warrant
stated that the plaintiff had refused
to enter into such recognizance and
find such sureties, and commanded
that the plaintiff should be convey-
ed to prison and there kept for the
space of three months, unless the
plaintiff in the meantime entered in-
to such recognizance with such sure-
ties. This warrant was afberwards
quashed on motion, and an action
of trespass brought against the de-
fendant who granted it: — Held,
first, that the warrant put in by the
plaintiff was information of the ev-
idence recited in it. Haylock v.
Sparke, 1 EL & Bl. 471 ; 17 Jur.
731 ; 22 L. J., M. C. 67.
Held, secondly, that it must be
taken that the defendant intended
to require sureties for good behav-
iour, notwithstanding the words
" sureties of the peace " in the war-
rant. lb.
Held, thirdly, that a justice of
the peace has jurisdiction to require
sureties for good behaviour in some
cases of libels against private indi-
viduals, and that therefore the de-
fendant had jurisdiction in the mat-
ter out of which the cause of action
arose, and within 11 <& 12 Vict. c.
44, s. 1, and consequently was not
liable to an action of trespass. /&
Articles of the peace were eihib-
ited against A. at the quarter ses-
sions of the county of H., and he
was by that court ordered to enter
into recognizance before one or mote
justices of H. to keep the peace for
six calender months thence ensuing.
Under the warrant of two jus-
tices of H., A. was brought bdrore
two justices of the same county, to
shew cause why he should not en-
ter into the recognizance, and he
then refused to do so, whereupon
the justices last mentioned commit-
ted him to the county gaol for the
then residue of six calendar months
from the date of the order of quar-
ter sessions, unless he should in the
meantime enter into the recoCTi- «
zance : — ^Held, that the justices had
no power to commit, and that the
prisoner was entitled to be dischai^-
ed on habeas corpus. Askton or Am^
ton, In rcy 1 New Sess. Cas. 581 ; 7
Q.B. 169; 9 Jur. 727; 14 L. J.,
M. C. 99.
• A justice of the peace may com-
mit to the house of correction, un-
der 6 Geo. 1, c. 19, 8. 2, for want of,
sureties to keep the peace. Astany
Inre,\ New Sess. Cas. 73; 12 M.
W. 456 ; 8 Jur. 293.
In a warrant of commitment for
waiit of sureti^ to keep the peace.
PRACTICR
609
in consequence of having used lan-
guage threatening bodily harm to
an individual, it is not necesBary
that the warrant should shew the
nature of the bodily harm threaten-
ed, or when the language was used.
3. On Passing Sentence,
In all cases of misdemeanor pun-
ishable by imprisonment, the Queen's
Bench, and, therefore the judge at
the trial, has power to adjudge that
the defendant give security to keep
the peace for a certain time, and
that he be kept in prison until such
security be given. Dunn v. Heg,
(in error), 12 Q. B. 1026 ; 18 Jur.
233; 18 L. J., M. C. 41— Exch.
Cham.
Quaere, whether a judgment which
directs that each of several defend-
ants shall enter into recognizances
to keep the peace for the space of
s^en years next ensuing the ac-
knowledgment thereof, is good, as
no period is fixed for entering into
the recognizances? O^GonneU v.
Seg. (in error), 11 C. & F. 155 ; 9
Jur. 25.
If, after the grand juryis discharg-
ed, a prisoner charged with mali-
ciously shooting is acquitted, the
judge will not order him to be de-
tained while articles of the peace
against him are prepared. JKex v.
&U, 7 C. & P. 518— littledale.
4. Practice,
The court granted an attachment
upon articles of the peace where the
threat of further violence was con-
ditional on the exhibitant writing
again to a member of the defend-
ant's family, although it did not
appear that the exhibitant had writ-
ten again, or was under any neces-
sity of doing so. Jteg.y, ToUenuxche,
2 L, M. & P. 401— B. C— Wight-
man.
Where a peer had been arrested
by a warrant of two justices, and
bound by recognizances with two
FiBH. Dig, — 46.
sureties to keep the peace^ the court
refused an application for a certio-
rari to bring up the recognizances
(on the ground of the justices hav-
ing no jurisdiction), as the appli*
cant was not in custody ; and, in
the event of its being necessary to
enforce the recognizances, their va-
lidity could be tried in another way.
Oifford (Lord), jEc parte, 1 New '
Sess. Cas. 490.
Where articles of the peace have
been filed, and an attachment issued
for the purpose of bringing in the
defendant to find sureties, the court
will not entertain an application to
discharge the articles and to award
costs under 21 Jac. 1, c. 8, s. 2, on
the ground of alleged insufficiency
of the articles, though notice of sucn
application has been given to the
prosecutor. JReg» v. MaUinson, 16
Q. B. 367 ; 15 Jur. 746.
A party, against whom articles
of the peace have been exhibited in
the court, cannot call upon the pros-
ecutor to shew cause why the arti-
cles should not be discharged. lb.
Affidavits are not admissible for
the purpose of supplying facts said
to have been suppressed oy the com-
plainant, as the contents of a corre-
spondence alluded to in the articles.
Nor is it an objection to the articles
that such correspondence is not set
out, if it does not contain any part
of the menace relied upon. lb.
Where articles of the peace were
returned by certiorari, and affidavits
made by others than the exhibitant
wei*e subjoined on the same parch-
ment, and the whole ended with the
following jurat — " sworn by the
several deponents," Ac: — Held,
that it sufficiently appeared that the
articles had been exnibited on oath.
Beg, V. Dunn, 12 A. & E. 599 ; 4
P. & D, 415 ; 1 Am. & H. 21 ; 5
Jur. 721.
On habeas corpus bringing up a
party committed by justices for not
finding sureties of Mie peace, the-
court will not hear affidavits contro-
610
BAIL.
yertiDg facts alleged in the articles
of the peace. lb. ; S. P., Reg. v.
Stanhope, 12 A. & E. 620, n.
The court of Queen's Bench has
authority to examine the allegations
contained in articles of the peace
when they are brought up by cer-
tiorari, and to quash the articles, if
no sufficient offence is alleged to
• justify the justices in ordering the
defendant to give sureties of the
peace. lb.
LVn. Bail.
1. Fdony, 610.
2. In Misdemeanon and other Cases,
611.
1. In Felony.
By7 Geo. 4, c. 64, the 3 Edw. 1,
c. 15 ; 23 Hen. 6, c. 9 ; 8 Hen.7, c. 3,
were partiaUy, and 1 & 2 P. & M. c.
13, was whoUy repealed ; and 7 Geo.
4, c. 64, ss. 1, 2, 8, on^ 5 ifc 6 Will.
4, c. 33, s. 3, are repealed by \\ Sd
12 Vict. c. 42, s. 34.
By 11 & 12 Vict. c. 42, ss. 23,
24, 25, "the law and practice of
" taking bail by justices in cases of
** felony and of misdemeanor are reg-
" ulated. "
The court, in exercising its dis-
cretion of admitting a prisoner to
bail, will consider the seriousness
of the charge, the evidence in sup-
port of it, and the punishment
which the law awards for the of-
fence. Barranetj In re, 1 £1. & Bl.
1 ; Dears. C. C. 51 ; 17 Jur. 184 ;
22 L. J., M. C. 25.
Upon an application to be ad-
mitted to bail by two Frenchmen,
who had been committed on a cor-
oner's inquest, and by a warrant of
justices, for wilful murder in a duel,
their affidavits stated that they had
acted as seconds of the deceased,
that the duel was &ir, that they
were ignorant of the law of Eng-
land, and thai the part which they
took in the duel was not considered
in France any legal offence : — Held,
that there being a confession of
guilt, the court was not justified in
admitting them to bail. lb.
A similar application was made
on behalf of two other Frenchmen,
under the same circumstances, vpoa
the production of verified copies of
the depositions before the coroner
and before the magistrates ; the pris-
oners made no affidavit. The court
refused the application, on the
ground that the depositions con-
tained evidence to support the find-
ing of the coroner's inquest. Barthele-
my^ In re, Dears. C. C. 60 ; 1 El. &
Bl. 1 ; 17 Jur. 184 ; 22 L. J., M. C.
25.
The court refused to bail a prison-
er, who was charged on a coroner's
inquest 'with murder, and against
whom a bill for the same crime had
been found by the grand jury ; al-
though his trial had been postponed
in consequence of the absence of
witnesses for the prosecution; and
it was alleged, that, on the fiice of
the depositions, as taken before the
coroner, the charge of murder could
not be sustained Heg. v. Andrews^
2 D. & L. 10 ; 1 New Seas. CasL
199 ; 8 Jur. 799 ; 13 L. J., M. C.
113— B. C— Wightman.
On an application to bail a pris-
oner charged with a criminal oi-
fence, the test to govern the discre-
tion of the court is the probability
of the prisoner's appearing to take
his trial ; but, in applying that test,
the court will not look to the char-
acter or behaviour of the prisoner
at any particular time, but will be
guided by the nature of the crime
charged, the severity of the punif^-
ment that may be imposed, and the
probability of a conviction. Hobin^
son, In re, 28 L. J,, Q. B. 286— B,
C. — Coleridge.
The principle on which a party
committed to take his trial for an
offence may be bailed, is founded
on the probability of his appearing
to take his trial, and not on his sup-
posed guilt or innocence; but the
fact of a bill having been fovmd
m FELONY.
611
against him is material in estimat-
ing that probability. Heg. v. Scaifey
9 D. P. C, 553 ; 5 Jur. 700— B. C.
A judge will not admit a prison,
er to bail after the grand jury has
returned a true bill against him for
murder. Seg, v. Chapman^ 8 C. &
P. 558 — Abinger.
Where neither the husband of a
feme covert, nor her next of kin,
can be discovered, service of a rule
nisi for bailing a prisoner on a
charge of manslaughter, may be
made on the coroner. JReg, v. WiU
Uam$, 8 D. P. C. 301 ; 4 Jur. 654—
B.C.
Where, after conviction by a jury
at the assizes, questions of law have
been reserved for the Court of Crim-
inal Appeal, the prisoner will not
be admitted to bail without the as-
sent of the judge before whom he
was tried. Reg. v. Harris^ 4 Cox,
C. C. 21— Erie.
After defendants have been ad-
mitted to bail on a criminal charge,
the court will not, on affidavit of
aggravating facts, increase the bail.
R^ V. SaUer, 2 Chit. 109.
Now it is an invariable rule to
require four bail in cases of felony.
Rex V. Shaw, 6 D. &. R. 154.
In the Country,'] — Where the
court thinks that a prisoner ought
to be bailed for felony, if he is un-
able to defray the expense of being
brought to Westminster for that
purpose, they will grant a rule to
shew cause why he should not be
bailed by a magistrate in the coun-
try. Rex V. Jones, 1 B. & A. 209.
The court will not allow a defend-
ant who is out of custody, to be
bailed before a magistrate in the
country; he must surrender in
court, in order to be bailed. Rex
V. Wren, 5 D. P. C. 222. ^
In order to entitle a defendant on
a charge of felony to be bailed be-
fore a magistrate in the country,
it is not necessary to produce an af-
fidavit of poverty, if it appears from
the other affidavits in the case that
he is in an humble situation of life.
Rex V. Booker, 2 D. P. C. 446.
The court will grant a rule nisi
for bailing in the country a party
charged with a felony, without the
production of an affidavit of his pov-
erty. Reg. V. Gregory, 9 D. P. C.
129.
In order to a party being bailed
in London for an offence commit-
ted in the coimtry, the depositions
should be removed by certiorari,
and notice served on the commit-
ting magistrates and on the prose-
cution. Rex V. Braithwaite, 2 Lew-
in, C. C. 55 — Littledale.
2. In Misdemeanors and other Cases,
(114-12 Vict. c. 42, ss. 23, 24, 25.)
By 16 & 17 Vict., " provisions are
"enacted for staying execution of
"judgment for misdemeanors In
" giving bail in error."
It is a clear principle of law, that
a person charged with a misdemean-
or is entitled to be bailed on pro-
ducing sufficient sureties. Reg. v.
Badger, 4 Q. B. 468 ; D. & M. 375 ;
7 Jur. 216; 12 L. J., M. C. 66.
A magistrate has no right to re-
ject bail, on account of the charac-
ter or political opinions of bail, if he
is satisfied of their pecuniary suffi-
ciency. Ih,
Where an indictment for conspir-
acy had been removed by certiorari,
and the ordinary bail had been given,
but after trial and the conviction of
the defendant, and before judgment,
a motion was made to quash the in-
dictment for insufficiency, and pend-
ing such motion one of the bail be-
came insolvent, and offisred a com-
position to his creditors ; the court
refused to require the defendant to
S've fresh bail. Reg. v. Johnson, 1
. & L. 132 ; 7 Jur. 1038— B. C—
Wightman.
A motion for fresh bail ought to
be made at chambers, and not in
court. Ih.
The power of a magistrate to ac-
cept or refuse bail in cases of misde-
612
BAIL.
meanor is a judicial duty, and an
action will not lie against him for
refusing to take bail in such cases
without proof of express malice,
even though the sureties tendered
are found by the jury to have been
sufficient. Linford v. Fitzroy^ 3
New Sess. Cas. 438 ; 13 Q. B. 240 ;
13 Jur. 303 ; 18 L. J., M. C. 108.
Where a certiorari had issued to
bring up a conviction under 4 Greo.
4, c. 34, for the purpose of being
quashed for defects on the face of
of it, the court admitted the defend-
ant, who was in prison under the
conviction, to bail. Lord^ Ex parte^
4 D. & L. 405 ; 1 B. C. Rep. 222 ;
16 L. J., M. C. 15— Patteson.
It is the duty of magistrates, in all
cases, to commit an accomplice,
and not to admit him to bail, not-
withstanding it may be intended to
call the accomplice as a witness on
the tfial. JRex v. Beardmare^ 7 C. &
P. 497— Patteson.
It is the duty of a magistrate to
ascertain the sufficiency of the bail
who tender themselves on behalf of
an accused i»rty, but he ought not
to interfere in any way to dissuade
them from becoming bound as bail.
Heg. V. Saunders, 2 Cox, C. C. 249.
A defendant, brought up for
judgment after conviction, stands
committed, unless the prosecutor
consents to bail. Rex v. Wadding-
tan, 1 East, 159.
Where bills for misdemeanors are
found under the commission of oyer
and terminer at the Central Crim-
inal Couit, the defendant must give
48 hours' notice of bail, unless the
application for process is made on a
Fnday, in any case in which there
is reason to think that there is a de-
sire to keep the party in custody
over Sunday. JRex v. Carlile, 6 C.
4fcP.628.
It is in the discretion of the judge
to bail the prisoner or not, when his
trial is postponed on account of the
absence of the prosecutor. Anon,
2 Lewin, C. C. 260— Parke.
Where on error brought it was
held that an entry by an inferior
jurisdiction did not amount to a
judgment, but was merely an or-
der, the court awarded a proceden-
do to the court below commauding
them to proceed to give the proper
judgment, but in the mean time al-
allowed the prisoner to be bailed.
Hex V. Kenworthy, 3 D. & R. 173 ; 1
B. & C. 711.
The bail of one acquitted of per-
jury will be discharged, althoogb
the acquittal is not entered of rec-
ord. Jtt^ V. Spencer, 1 Wils. 315.
When the House of Lords voted
the defendant guilty of a breach of
privilege, and committed him to
prison, the court refused to dis-
charge him out of custody. Hex v.
Flower, 8 T. R. 314.
A commitment by a justice of the
peace for a time certain, as for four-
teen days, under the vagrant act, is
a commitment in execution, and
the party is not entitled to be bait
ed. Hex v. Brooke, 2 T. R. 190.
In the Country,'] — An attachment
upon articles of the peace is bailable
before justices of the county. Bex
V. Bomaster, 1 W. Bl. 233.
A party indicted for a misde-
meanor at York, may put in bail
in London. Swa%le*8 case, 1 Lewio,
C. C. 19— Holroyd.
Recognizances.'] — ^The word forth-
with in a notice to a party charged
criminally, and out on baU, to ap-
pear, on pain of forfeiting his recog^
uizance, means, " within a reason-
able time from the service," and
not from the date of the notice.
Reg. V. Price, 8 Moore, P. C. C.
203.
Indemnijlcaiion of BaiU\ — On the
removal into the Queen's Bench of
an indictment for a conspiracy
against the defendant, the plaintio
became one of his bail in 40/., the
condition of the recognizance beLoff,
that the defendant should pleaa,
and at his own costs cause tne in-
COSTS — EXPENSES OF PROSECUTION.
613
dictment to be tried, and appear
personally, and not depart till dis-
charged by the court. The defend-
ant appeared, and was tried and
convicted; and the costs of the
prosecution not having been paid,
pursuant to 5 Will. & M. c. 11 , the
recognizances were escheated, and
the plaintiff was compelled to pay
the 40/. The plaintiff having
brought an action for money paid
against the defendant to recover
the 40/. : — Held, that as an express
promise by a defendant in a misde-
meanor to indemnify his bail against
the consequences of not paying the
cost of the prosecution would not
be illegal, the law would imply a
promise to that extent, and the
plaintiff could therefore recover.
Jones y. Orchard, 16 C. B. 614; 1
Jur., N. S. 936 ; 24 L. J., C. P. 229.
Where B. promised verbally to
indemnify A. against all liability if
he would become bail for the ap-
pearance of C. to answer a charge
of misdemeanor, and A., in conse-
quence, became bail for C, the
agreement need not be in writing,
as the promise is a mere promise to
indemnify, and not a promise to an-
swer for the debt or default of an-
other, since no debt or legal duty
was owing from C to A. in conse-
quence of his having become bail.
vnpps V. HartnoU^ 32 L. J., Q. B.
881 ; 1 1 W. R. 953 ; 10 Jur., N. S.
200 ; 8 L. T., N. S. 765— Exch.
Cham.
LVm. Costs.
1 . Expenses of Prosecution, 613.
2. Rewards for extraordinary Exer-
tions anci Diligenr£, 615.
S. In other Cases, 615.
4. After Removal 6y Certiorari, 615.
5. Practice, 619.
6. Taxation, 621.
7. Enforcing Patfment, 621.
1. Expenses of Brosecuiion.
7 Geo. 4, c. 64, s. 22, andU&15
Vict. c. 55, " regulate the allowance
" of prosecution in felonies and mis-
" demeanors."
The 7 Geo. 4, c. 64, repeals 25
Geo. 2, c. 36 ; 27 Geo. 2, c. 3 ; 18
Geo. 3, c. 19 ; and 58 Geo. 3, c. 70,
so far as related to this subject. The
costs of prosecution are allowable and
enforceable under the Larceny Con^
solidation Statute, see 24 & 25 Vict,
c. 96, ^. 121 ; under the Malicious
Injuries to Property Act, 24 <& 25
Vict. c. 97, s. 77 ; under the Forgery
Consolidation Statute^ 24 & 25 Vict,
c. 98, s. 54 ; under the Coinage Con^
solidation Statute, 24 & 25 Vict. c.
99, s. 42 ; and under the Statute re-
lating to Offences against the Person,
24 & 25 Vict. c. 100, s. 77,
By 29 & 30 Vict. c. 52, ** the law
" relating to the expenses of prose-
" tions is extended to the payment
" of expenses incurred in attending
" before magistrates, but this enact-
" meht is only for three years."
In frivolous cases of felony a
judge will not allow the prosecut-
or's expenses, although he may be
bound over to prosecute by a mag-
istrate. Itex V. Powell, 1 C. & P.
96— Park.
On an application for costs under
14 4& 15 Vict. c. 55, s. 3, in a case
of assault the judge must be satis-
fied that the defendant was taken
before magistrates for their sum-
mary decision of the case, and by
them sent for trial at the assizes ;
but the prosecution of the summons
granted by one of the magistrates
for the defendant to appear before
such magistrates as should then be
there, to answer the complaint, and
be further dealt with according to
law, is sufficient for this purpose.
Heg, V. M' Gavaron, 3 C. & K. 320 ;
6 Cox, C. C. 64— Williams.
An indictment under 8 & 9 Vict,
c. 109, which enacts that eveiy per-
son who by fraud or unlawful de-
vice or ill practice in playing cards,
shall win from any other person any
sum of money or valuable thing
from such other person by a false
pretence, with intent to cheat or de-
614
COSTS.
fraud such person of the same, and
being convicted thereof, shall be
punished accordingly, is within 7
Geo. 4, c. 64, s. 23, which empowers
the court to order the costs of pros-
ecution in indictments, for knowing-
ly and designedly obtaining any
property by false pretences. Reg,
V. Gardner, 5 Cox, C. C. 140— Tal-
fourd.
On a conviction of forgery, the tri-
al taking place in the county of S., but
the material acts appearing to have
been done partly in the county of
D., and partly in the borough of O.,
in the county of S., which borough
had its own rate in the nature of a
county rate, the judge of assize
made an order upon the borough
treasurer, under 7 G«o. 4, c. 64, s.
25, for payment of the prosecutor's
costs. The order was not disputed
during the assizes. The borough
afterwards contesting it, and a man-
damus being moved for : — Held,
that the judge's order was conclu-
sive, and that a mandamus mi^ht
issue to enforce the payment. Meg.
v. Oswestry {Treasurer) or Reg. v.
Hayward, 12 Q. B. 239 ; 12 Jur.
744; 17 L. J., Q. B. 223.
A prosecutrix and witnesses were
bound by recognizance to appear
against a prisoner at the assizes on
a charge of felony. By the ad-
vice of counsel, instead of an in-
dictment for felony, an indictment
was preferred for a misdemeanor at
common law, on which no costs
could be allowed. The judge made
an order for the expenses ot the at-
tendance of the prosecutrix and wit-
nesses. Reg. V. Hanson^ 2 C. <& K.
912— Williams.
A prosecutor and his witnesses
were bound by recognizances to
prosecute and give evidence at the
assizes. They attended there, and
preferred an indictment, which was
found. The prisoner had been by
mistake discharged by proclama-
tion at an adjourned sessions which
precede the assizes, and had abscond-
ed. The j udge allowed the expenses.
Rex V. Robeyy 5 C. & P. 552 —
Taunton.
A party who is bound over to
prosecute at a superior court by a
court of quarter sessions, is entitled
to his expenses. Rex v. Pame^ 7
C. & P. 135.
Under 7 Geo. 4, c. 64, s. 22, the
court may, in case of felony, allow
the costs of the prosecutor and wit-
nesses, though they are not under
recognizances. Req. v. Butterwick^
2 M. & Rob. 196— Parke.
Where an indictment on 7 4fe 8
Geo. 4, c. 80, s. 16, was removed by
certiorari into the King's Bench,
and is tried on a record issuing
out of that court, the expenses of
prosecution cannot be allowed un-
der 7 Geo. 4, c. 64, s. 22. Rex v.
Kelsey, 1 D. P. C. 481.
Where the clerk of the peace, au-
thorized to prosecute at the expense
of the county, had not prosecuted,
the expenses of prosecution were
not allowed. Reg. v. Cook^ lY.Sa
F. 389— BramwelL
The court has no power to make
an order on the treasurer for the in-
terlocutory costs of a prosecution,
and will not make any till the trial
has actually taken place. In re
Toung, 2 Cox, C. C. 280— Patteson.
The court has no power to order
payment, as part of the expenses of
a prosecution, of the costs incurred
by the warders of Millbank prison,
in bringing down to Wells a pris-
oner in custody at Millbank, as an
escaped convict, to be tried at
Wells, on a charge of larceny from
the pei'son. Reg. v. Waters^ 8 Cox,
C. C. 350— ChanneU.
Under the words " in otherwise
carrying on such prosecution," in 7
Geo. 4, c. 64, s. 22, extra expenses
which had been incurred in getting
up a prosecution, ordered to be re-
imbursed. Lewen^s ccue, 2 Lewin^
C. C. 161— Denman.
Where the prosecutor of an indict-
ment for a misdemeanor fcnnd at
sessions removes it into the Queen's
Bench by certiorari, he is not entit*
REWARDS.
615
ted to costs under 7 Geo. 4, c. 64,
8. 23. i?ea5 v. JRichards, 2 M. <& R.
405 ; 8 B. & C. 420 ; S.R.Rex v.
Johnam, 1 M. C. C. 173.
The prosecutor, in a case of per-
jury, who has included his name in
a subpoena, is entitled to his costs
as a prosecutor, though he is not
bound over to prosecute by a mag-
istrate, and he is not limited to his
expenses incurred as a witness only.
Rex V. Sheering, 7 C. & P. 440—
Parke and Coleridge.
Justices of the peace at the quar-
ter sessions have no authority, by
an act of parliament, to order the
costs of a prosecution for a misde-
meanor, earned on under the direc-
tion of magistrates, to be allowed
out of the county rates. Rex v.
W, R. Yorkshire, 7 T. R. 377.
Where to an indictment at the
assizes for a misdemeanor the de-
fendants consented to plead guilty,
upon an understanding that they
were not to be brought up for judg-
ment, and no stipulation or agree-
ment having been then expressly
made by the prosecutor for the pay-
ment of his costs : — Held, that he
was not afterwards entitled to a
rule on the crown side to have his
costs taxed. Rex v. Raioson, 4 D.
6 R. 124 ; 2 B. & C. 598.
2. Rdoards for extraordinary Ex-
ertions or Diligence.
On an indictment for an attempt
to murder by suifocatiug, the allow-
ance of extra expenses for appre-
hending the prisoner is within the
spirit and intention of the 7 Geo. 4,
c. 64, s. 28, though not within the
words. Durkin^s case, 2 Lewin, C.
C.163— Patteson.
Under the word ** exertions," in
7 Geo. 4, c. 64, s. 28, a gratuity
awarded to a prosecutor for his
courage in apprenending the prison-
er. Womersley*s case, 2 Lewin, C.
C. 162— Parke.
A person residing in a house
broken into by burglars, and who.
by fastening them in a room, de-
tains them there until assistance is
obtained, and the capture of the of-
fenders effected, is within 7 Geo. 4,
c. 64, 8. 28. Reg, v. Dunning, 5
Cox, C. C. 142— Talfourd.
An application under 7 Geo. 4, o.
64, 8. 28, must be founded on an
affidavit of the amount actually ex-
pended. Reg, V. Haines, 5 Cox, C.
C. 114— Campbell.
A judge has no power to order
payment of the expenses incurred
in the apprehension of a prisoner
who has left England. Iteg, v.
BarreU, 6 Cox, C. C. 78 — Wil-
Hams.
Rewards, under 7 Geo. 4, c. 64,
s. 28, are not confined to cases
where the person apprehending has
had a loss of time or has been at
any expense. Reg, v. Barnes, 7 C.
& P. 166— Coleridge.
Where a reward is applied for
under 7 Geo. 4, c. 64, s. 28, and the
facts on which the application is
grounded are not in evidence, the
judge recmires an affidavit of them.
Rex V. Jimes, 7 C. & P. 167 —
Parke.
3. Costs in other Cases,
Costs for not going to trial shall
be paid to a defendant, by the
course of the court, on informations
for misdemeanors, where the prose-
cutor does not coimtermand Iiis no-
tice of trial in time. Rex v. JSey-
don, 3 Burr. 1804.
But a prosecutor is not to pay
costs for not going to trial ac-
cording to his notice, if it is not oc-
casioned by his own default. Rex
V. Righton, 3 Burr. 1694.
A rule for the costs of the day
for not proceeding to trial on an in-
dictment for perjury pursuant to
notice, is absolute in the first in-
stance. Reg, V. Hazard, 1 W., W.
& H. 417 ; 2 Jur. 1067— B. C.
4. After Removal by Certiorari,
In the case of an indictment re-
moved by certiorari, the court has
616
COSTS.
no power to order the payment of
costs incurred before the removal.
Rex V. Pasman^ 8 N. ifc M. 730 ; 1
A. & E. 603.
Rated inhabitants of a parish,
who were prevented by rioters from
entering the vestry-room to attend
a meeting called for the purpose of
imposing a church-rate, and who
afterwards prosecuted the offenders,
are parties grieved within 5 & 6
Will. & M. c. 11, s. 3 ; and there-
fore entitled to costs on conviction
of the defendants after removal of
the indictment by certiorari. Rex v.
Thompkins, 2 B. & Ad. 287.
Where a defendant who removes
an indictment by certiorari is con-
victed, he shall not pay costs under
6 <fc 6 Will. & M. c. 11, to the
prosecutors. Rex v. Ingleton^ 1
Wils. 139.
Where a defendant removes an
indictment by certiorari, and enters
into recognizances with two sure-
ties, under 5 & 6 Will. & M. c. 11,
88. 2 & 3, and 8 <fc 9 Will. 3, c. 33,
and is convicted, the sureties are
liable to pay the prosecutor his
costs. Reg, v. JBezant^ 7 D. P. C.
680 ; 2 W., W. & H. 113 ; 3 Jur.
279.
Where an indictment was remov-
ed by certiorari at the instance of a
defendant, and he was found guilty,
the costs of conveying him to gaol,
on his receiving sentence of impris-
onment, are reasonable costs within
5 ifc 6 Will. & M. c. 11, 8. 3, to be
allowed to the prosecutor on taxa-
tion. Rex V. Gilbie, 5 M. & S. 520;
2 Chit. 159.
A public body at its own ex-
Eense prefeiTcd an indictment for a
bel upon A., one of its officers, in
the name of A. as prosecutor. The
defendant removed the indictment
by certiorari, and was convicted : —
Held, that no costs could be award-
ed under 5 & 6 Will. & M. c. 11, s.
8. Rex V. Deichurst, 2 N. & M. 253;
5 B. & Ad. 405.
The provisions of the 5 & 6 Will.
6 M. c. 11, Bs. 2 & 3, attach only
upon a defendant being convicted
by judgment ; and therefore if, after
a verdict of guilty, the judgment is
arrested, no costs can be taxed for
the prosecutor. Rex v. Turner^ 15
East, 570.
The prosecutor of an indictment
removed by certiorari is onlv en-
titled under 5 ifc 6 Will. & M- c.
1 1 , s. 3, to the costs of the counts
on which the defendant is convict-
ed. Rex V. Hmodon, 3 P. & D. 44 ;
11 A. & E. 143.
Persons dwelling near a steam-
engine, which emitted volumes of
smoke, affecting their breath, eyes,
c\othes, furniture, and dwelling-
houses, and prosecuting an indict-
ment for it, aie parties grieved, and
entitled to have their costs taxed
under 5 && Will. & M. c. 11, s. 3,
upon removal of the indictment by
certiorari from the sessions into the
court by the defendants, and their
subsequent conviction. Rex v. Dew-
Sfiap, 16 East, 194.
A defendant was convicted of
perjury on an indictment removed
at his instance, by certiorari : —
Held, that the prosecutors, who
werfe executors of a deceased person,
were entitled to costs under 5 & 6
Will. <fc M. c. 11, as persons grieved
or injured, although the perjury oc-
casioned them no actual damage, it
being sufficient to brii^ the case
within the statute that the peijuiy
might have caused them damage,
and the false oath of the defendant
having put a difficulty in their way,
which they were compelled to re-
move. Reff, V. Major J Dears. C.C.
13 ; IB. C. C. 68 ; 21 L. J., M. Cl
21— Wightman.
If the metropolitan police com-
missioners appointed under 10 Geo.
4, c. 44, s. 1, direct an indictment
for assaulting one of the police con-
stables in the execution of his duty,
and the defendant removes such in-
dictment by certiorari and is con-
victed, the commissioners are en-
titled to costs under 5 A 6 Will. A
M. c. 11, 8. 3, as justices of the
AFTER REMOVAL BY CERHORARL
617
peace and civil officers whom it con-
cerned to prosecute. Reg. v. Wal-
degrave {JEartf, 2 Q. B. 341 ; 1 G.
& D. 615 ; 6 Jur. 502.
Where an indictment has been
removed by certiorari, and a con-
viction obtained, the person who,
being a party grieved, retained and
is liaole to the attorney for the pros-
ecution, is entitled, under 5 <jb 6
Will. & M. c. 11, s. 8, to the costs
of such prosecution, though other ag-
grieved parties, after the attorney
was retained and the indictment re-
moved, agreed to contribute part of
the costs, and they are not joined
in the application. JReg, v. Wil-
liams, 6 Q. B. 273 ; 8 Jur. 559 ; 15
L. J., Q. B. 98.
A side-bar rule for costs having
been obtained by the prosecutors of
an indictment for an obstruction to
a highway as parties grieved, within
5 & 6 Will. & M. c. 11,8. 3, the
court refused to discharge it on the
ground that the expenses of the
prosecution had been paid out of
the funds of a society, of which
some of the prosecutors were mem-
bers, and that money had been
raised by public subscription to-
wards paying those expenses ; or on
the ground that all the prosecutors
were not parties aggrieved ; or on
the ground that the certiorari for
removing the indictment had been
obtained at the instance of one only
of the defendants. Reg, v. Dobson,
9 Q. B. 302 ; 10 Jur. 283 ; 15 L. J.,
Q. B. 97.
An indictment for a libel on a
political dinner, alleged to have a
tendency to produce a riot, was, at
the instance of the defendants, re-
moved by certiorari : — Held, that a
person injured at a riot which took
place at that dinner was not a per-
son grieved within 5 & Q Will. &
M. c. 11, s. 3, and therefore, al-
though the diefendants were con-
victed on the indictment, he was not
entitled to costs. Reg. v. Gcdde-
cott, 1 D., N. S. 556 ; 6 Jur. 344—
B. C.
Where a defendant removes an
indictment by certiorari, and recog-
nizances are entered into under 5 &
6 Will. & M. c. 11,8.2; 8 & 9
Will. 3, c. 33, s. 1 ; and 5 & 6
Will. 4, c. 33, s. 2, conditioned only
for the defendant's appearing, plead-
ing and trying at his expense, and
the defendant is convicted, such
I'ecognizances will be estreated for
non-payment of the costs of the
Sosecution, under 5 <fc 6 Will. &
. c. 11, s. 3, though the condition
expressed in the recognizances is
performed. Reg. v. Imwdcyn, 1 Q.
B. 464 ; 1 G. <fc D. 135 ; 9 D. P. C.
1007 ; 5 Jur. 1008.
Where the defendants remove an
indictment by certiorari, a merely
nominal prosecutor is not entitled to
costs under the 5 & 6 Will. & M.
c. 1 1 , s. 3, as a party grieved or in-
jured. Reg. V. Barnard Casde^ 1
Q. B. 246 ; 5 Jur. 799.
A child, six years old, was found
wandering in a parish, within a
union in London. It appeared to
be destitute, and to. have been as-
saulted and very ill-used. It was
received into the union work-house,
and there maintained. On its be-
ing taken before two aldermen,
they ui^ed the guardians of the
union to undertake the prosecution
of the person who appeared to have
ill-used the child. The guardians
did so. The defendant removed the
case by certiorari, and was convict-
ed : — Held, that the guardians were
entitled to the costs of the prosecu-
tion, under 5 & 6 Will. & M. c. 11,
8. 3, having prosecuted as officers,
on account of a fact that concerned
them as officers to prosecute. Reg.
V. , 15 Q.B. 1060 ; 15 Jur. 55 ;
20 L. J., M. C. 53 ; 4 Cox, C. C.
345.
Where an indictment has been
removed by certiorari, under 5 & 6
Will. A M. c. 11, s. 3, if the party
grieved or injured is, in point of
fact, the prosecutor, he will be en-
titled to costs, although not bound
over to prosecute, and although an-
618
COSTS.
other person, not a party grieved or
injured, was bound over to prose-
cute, and was at the trial in pur-
suance of his recognizance. Meg, v.
Bishop, 6 D. & L. 499 ; 13 Jur.
538 ; 18 L. J.,M. C. 63 — R C—
Wightman.
A society of attomies of a county
had prosecuted an indictment against
a defendant for practising as attor-
ney at the quarter sessions of the
city and borough, in the county,
without being qualified. The de-
fendant removed the indictment by
certiorari, and was convicted : —
Held, that the society was entitled
to costs, under 5 & ^6 Will. & M.
c. 11, s. 3, as parties grieved. lb.
A defendant was committed by
the lord mayor of London for trial
for an indecent assault. An indict-
ment found at the Central Criminal
Court was removed into the Queen's
Bench by certiorari at the instance
of the defendant. The defendant
was convicted. The prosecution
was conducted by the city solicitor,
in obedience to the directions of the
lord mayor given at the time he
committed the defendant ; and the
expenses were defrayed out of the
city funds: — ^Held, that the case
was not within 5 & 6 Will. & M.
c. 11, s. 3, inasmuch as the lord
mayor was not personally liable for
the expenses, and could not be con-
sidered as a prosecutor. And a side-
bar rule, taken out to tax the costs,
was set aside. Reg,\. Wilson, 1
El. & Bl. 597 ; Dears. C. C. 79 ; 17
Jur. 460 ; 22 L. J., M. C. 53 ; 6
Cox, C. C. 176.
The sureties of a defendant, on
the removal of an indictment for a
misdemeanor by certiorari from the
quarter sessions, where the defend-
ant has been convicted, are liable to
pay the prosecutor's costs, although
there is no such undertaking in the
condition of the recognizance, or
direct provision to that effect in 5
& 6 Will. & M. c. 11, s. 8. Heg.
V. Hodgson, 7 Exch. 915 ; 21 L. J.,
M. C. 181 ; S. JP., Reg. v. Hawdan,
1 G. & D. 135 ; 9 D. P. C, 1007 ;
5 Jur. 1008.
Two defendants being indicted
jointly in the Central Criminal
Court for conspiracy, one of them
applied to a judge for a certiorari,
who granted it on his entering into
a recognizance for the payment of
the prosecutor's costs, in case either
defendant should be convicted:—
Held, that such terms were reason-
able, and within the discretion of
the judge; and that the 16 & 17
Vict. c. 30, s. 5, made no difference
in this respect. Meg. v. JeioeU, 7
El. & Bl. 140 ; 3 Jur., N. S. 689 ;
26 L. J., Q. B. 177.
Where an indictment a^inst a
corporation, for non-repair of a high-
way, is removed by certiorari, at
the instance of the prosecutor, the
prosecutor is not required by 16 A
17 Vict c. 30, s. 5, to enter into
recognizances to pay the defendant's
costs, in case of acquittal ; indict-
ments against corporations being ex-
cepted from the operation of the
act. Meg. v. Manchester {Mayof,
cfcc), 7 El & Bl. 453 ; 3 Jur.,N.S.
839 ; 26 L. J., M. C. 65.
An indictment was removed into
the Queen's Bench by certiorari ob-
tained at the instance of the prose-
cutor, who entered into a recogni-
zance, with two sureties, conditioned
that he should there prosecute with
effect, and perform all such orders
and things as the court should di-
rect. The defendants having been
acquitted : — Held, that, as the rec-
ognizance was not in the form pre-
scribed by 16 & 17 Vict. c. 30, s. 5,
i. e., conditioned to pay the defend-
ants' costs on acquittal, they were
not entitled to costs. Meg. v. Easi
Stoke, 6 B. & S, 536; 34 L. J., M-
C. 190.
The 38 Geo. 3, c. 52, a 12, pro-
viding that no indictment shall be
removed into the next adjoining
county, except the person applying
for such removal shall enter into a
recognizance in 40/. for the extra
costs, does not relate to indictments
PRACnCR
619
sent by K. B. to be tried in the next
adjoining county, after a removal
thither by certiorari. Hex v. Not-
tmffham^4 East, 208 ; 1 Smith, 51.
5. Practice*
Where the order of a town
council, being brought up by cer-
tiorari, is quashed, on motion, with
costs, the court should decide who is
to be charged with costs as prose-
cutor of the order, and the party
should be named in the rule. I^e(/.
Y.I>unn, 5 Q.B. 959 ; D. & M. 737;
8 Jur. 773 ; 13 L. J., Q. B. 237.
Where an indictment has been
removed by certiorari, and judgment
given upon it, the court will notice
the contents of such indictment on a
motion respecting costs of the pros-
ecution, without having tlie record
brought before them ^y affidavit.
JReg, V. Waldeffrave {Earl), 2 Q.
B. 841 ; 1 G. & D. 615 ; 6 Jur. 502.
Where an application was made
to remove an indictment by certio-
rari by one of several defendants, the
court granted it upon his entering
into recognizances to pay the costs,
not only if he was, but if either of
the other defendants was, convict-
ed. *Reg, V. FoidkeSy 1 L. M. & P.
720; 20 L. J., M. C. 196— B. C—
Patteson.
Where one of several defendants
obtained a certiorari for the remov-
al of an indictment into the Queen's
Bench, and a procedendo was moved
for on the ground that the certiorari
improvide emanavit, inasmuch as
the other defendants had not joined
in the application for the writ, and
had not, under 5 & 6 Will. & M.
c. 11, s. 3, entered into recogni-
zances to pay the costs of the prose-
cution in case of their conviction : —
Held, that the defendant, on whose
application the certiorari was grant-
ed (being a person to whose respon-
sibility there appeared no objection),
might enter into recognizances to
pay costs in case of the conviction
of himself or of the other defend-
ants^ or either of them, and that
under these circumstances the pro-
cedendo would not be ordered.
Reg. V. Probert, Dears. C. C. 30.
A recognizance, in the margin of
which there was the name of the
county of W., was stated to have
been taken before "J. T., esq., one
of the justices for the county of
W.": — Held, that it sufficiently ap-
peared, that the recognizance had
oeen taken in the county for which
J. T. was a justice. Reg, v. Hodg-
son, Dears. C. C. 14 ; 7 Exch. 915;
21 L. J., M. C. 181.
One of three defendants, jointly
indicted for misdemeanor at the
Central Criminal Court, obtained a
certiorari from a jud^e at cham-
bers, to remove the inmctment into
the Queen's Bench, and entered in-
to recognizance, conditioned to pay
the costs of the prosecution if he
was convicted, to appear, plead, and
try. The other defendants concur-
red, but entered into recognizance
only to appear, plead, and try. On
motion for a procedendo, it was
suggested that this course created
hardship on the prosecutor, as, if
the party removing were acquitted,
but the other convicted, the prose-
cutor would have no security for
costs : — Held, nevertheless, that the
judge had a discretion, the exercise
of which the court would not re-
view, and the procedendo was re-
fused. Reg. V. WUks, 5 El. & Bl.
690 ; 25 L. J., Q. B. 47.
A defendant had removed an in-
dictment by certiorari, and had en-
tered into the usual recognizances
with two sureties. After a verdict
of guilty at the assizes he obtained a
rule for a new trial on payment of
costs. Without paying the costs he
gave notice of trial for the next as-
sizes to the prosecutor, who ob-
tained a judge's order, by which, if
the costs were paid by a certain
day, the notice of trial was to stand
good, but otherwise to be set aside.
The defendant did not pay the costs,
did not try the indictment, and died
within a few weeks. The prosecu-
620
COSTS.
tor obtained a side-bar nile to tax
his costs, to be paid by the defend-
ant or his bail ; — Held, that the bail
were not liable to pay the prosecu-
tor's costs, because they are only lia-
ble when the principal has been con-
victed ; and that after the granting
the rule for a new trial it could not
be said that there had been a con-
viction within the true meaning of
the recognizance, and that neither
the defendant's default in paying
the costs, nor the judge's order set-
ting aside the notice of the trial, did
away with the rule for the new
trial, or restored the original ver-
dict. Meg, V. Boxoen^ 7 D. A L.
812; 19 L. J., Q. B. 63— B. C—
Patteson.
Held, also, that whether liable or
not, the bail ought not to have been
mentioned in the side-bar rule for
the taxation of costs. Ih,
If an indictment against several
defendants is removed by certiorari
without the consent of one, he can-
not be compelled to pay the costs of
the trial, although he may have ap-
peared and pleaded to the indict-
ment, and been tried on it. Rex
V. HasseU, 5 D. P. C. 531 ; 2 H. &
TV 321
Under 5 & 6 Will. & M. c. 11, s.
3, the representatives of the prose-
cutor are entitled to the costs taxed
during his life, though no personal
demand was ever made by him.
Rex V. Chamberlayney 1 T. K. 103.
Where a defendant had removed
an indictment from the sessions by
certiorari, and was convicted, but
died before he could be brought up
for judgment : — Held, that his bail
was liable to pay the taxed costs of
the prosecution, under 5 & 6 Will.
A M. c. 1 1 , 8. 3. Rex v. Thtmer^ 4
D. & R. 816 ; 3 B. & C. 160; S. P.,
Rex V. Finmore, 8 T. R. 409.
Where a defendant had removed
an indictment, entered into a recog-
nizance, been convicted and fined,
and the prosecutor received one-
third thereof, so much was deducted
out of the sum for costs. Rex v.
Osborne, 4 Burr. 2125.
On a defendant's acquittal on an
information, he is not entitled un-
der 4 & 5 Will. & M. c. 18, s. 2, to
costs, beyond the extent of the r^
cognizance entered into by the pros-
ecutor in 20/. under that act Rex
V. FUewood, 2 T. R. 145.
The court, on granting an inform-
ation, will not require the prose-
cutor to give security for the costs,
in case the defendant should be ac-
quitted, beyond the extent of the
recognizance in 20/. required by 4
& 5 Will. <fc M. c. 18, s. 2. RexY.
Brooke, 2 T. R. 190.
An indictment removed by the
defendant, and made a special jury
cause by the prosecutor, came onto
be tried, and was immediately re-
ferred. The order of reference
stated, that if the arbitrator should
be of opinion that the defendant was
guilty, and the prosecutor entitled
to costs, the defendant agreed to
pay the costs. The arbitrator did
so find : — Held, that the prosecutor
could not recover the costs of the
special jurv, since the judge had
not certiiiei for those costs puriiuant
to 6 Geo. 4, c. 50, s. 34 ; and the
order of reference did not expressly
give a power of doing so to the ar-
bitrator. Rex V. Moate, 3 B. & Ad.
237.
Where a judge at the assizes re-
fused to try an indictment for a
misdemeanor (perjury), manifestly
bad on the face of it, but did not
order it to be quashed, and the pros-
ecutor preferred another indictment
for the same offence, and removed
it into K. B., the court would not
call upon the prosecutor to pay the
costs of the first prosecution, before
he proceeded with the second. Bex
V. Tremairie, 5 D. & R. 413 ; i6a
V. TVemeame, 5 B. & C. 761 ; R.
& M. 147.
When a prosecutor has removed
the record by certiorari, if the trial
is put off by reason of the act of
PARTICULAR OFFENCES.
621
God, the defendant is not liable to
the costs of the day. Hex v. JSarreUy
2 Lewin, C. C. 263— Patteson.
Where on removing an indict-
ment from the sessions, by certio-
rari, a recognizance is given by two
in 20/. each, under 5 & 6 Will. &
M. c. 11, ss. 2, 3, to secure the
costs, such recognizance will not be
discharged till all the costs are paid,
though they exceed 40/. Hex v.
Teal, 13 East, 4.
Upon an indictment for perjury,
removed by certiorari, if the prose-
cutor gives notice of trial to the de-
fendant, and withdraws his record
countermanding his notice in time,
he shall pay costs to the defendant.
Itex V. JBartrum, 8 East, 269.
If a prosecutor, having removed
an indictment by certiorari, gives
notice of trial for the assizes, and
brings down the record, and with-
draws it after it has been entered
for trial, the judge at the assizes
cannot order the prosecutor to pay
the defendant the costs of the day ;
but a motion must be made in the
court of King*s Bench. Bex v.
WaU<m, 4 C. & P. 229— Bolland.
6. Taxation.
The court of Queen's Bench has
no jurisdiction to review the taxa-
tion, by the clerk of assize, of the
costs of an indictment for libel on
the crown side of the assizes. Reg,
V. Newhause, 1 B. C. C. 129 ; 22 L.
J., Q. B. 127— Erie.
7. Enforcing Payment,
Where a side-bar rule is issued
under 5 & 6 Will. & M. c. 11, s. 3,
and an attachment is moved for by
the prosecutor for non-payment of
the costs, it is not necessary to have
an affidavit that the prosecutors are
the parties grieved. Reg. v. HiUs^
2 El. & Bl. 176 ; 17 Jur. 714 ; 22
L. J., Q. B. 822.
Where costs of the prosecution of
an indictment removed by certio-
rari have been proved as a debt un-
der the defendant's bankruptcy, the
court will not issue an attacliment
against him, or estreat his recogni-
zance for non-payment, although
they were not taxed in the regular
course until after the bankruptcy ;
but such proof is no discharge of
the bail. Reg. v. HUU, 2 El. & Bl.
176 ; 22 L. J., Q. B. 322 ; 6 Cox,
C. C. 174; 1 C. L.R.575.
On the i-emoval by certiorari of
an indictment for disobedience of an
order 6f sessions, the defendant and
two sureties entered into the usual
recognizance under 5 & 6 Will. &
M. c. 11, 8. 2, which made no men-
tion of costs. The defendant was
convicted and attached for non-pay-
ment of the costs, and the recog-
nizance was estreated into the Ex-
chequer. On the petition of the
defendant and his sureties, the court
stayed the proceedings on the re-
cognizance as regarded the defend-
ant, on account of his poverty, but
without prejudice to the liability of
the sureties. Reg. v. Thornton^ 4
Exch. 8?0 ; 19 L. J., M. C. 113.
Several defendants were found
guilty of a nuisance. The prosecu-
tor being entitled to costs, as a
party grieved, under 6 & 6 Will. &
M. c. 11, s. 3, obtained a rule for
taxing the costs as against all : —
Held, that, upon non-payment of the
costs, an attachment against one
was regular. Reg. v. Dobson, 9 Q.
B. 302 ; 10 Jur. 905 ; 15 L. J., Q.
B. 376.
LIX. Pabticitlab Offences.
1. Gompovnding Felonies and In-
formations.
Felonies.'^ — ^The law does not au-
thorize a pnvate person to forego a
prosecution upon any terms; and
even if a promise is given and brok-
en in such a manner as a jury would
consider scandalous, yet, in point of
law, that will not make any differ-
622
EXTRADITION TREATIES.
ence. Reg v. Daly, 9 C.& P. 842—
Guniey and Erskine.
If, in an indictment for com-
pounding felony, it is averred that
the defendant did desist, and from
that time hitherto had desisted,
from all further prosecution ; and it
appears, that, auer the alleged com-
pounding, he prosecuted the offend-
er to conviction, the judge will
direct an acquittal. Bex v. jStone,
4 C. & P. 379— Bosanquet.
Informations.'] — The 18 Eliz. c.
5, which prohibits the compounding
of any offence upon colour or pre-
tence of process, or without process
upon colour of any offence, against
any penal law, does not apply to of-
fences cognizable only before mag-
istrates; and an indictment for com-
pounding such an offence will be
bad in arrest of judgment Hex v.
C^isp, 1 B. & A. 282.
A popular indictment must not
be compounded after conviction.
Srery q. t. v. Levy, 1 W. Bl. 443.
On an indictment on 51 Eliz. c.
5, s. 4, for compounding an offence
against 13 Geo. 3, c. 84, s. 13,
and taking money without pro-
cess to prevent an action being
brought : — Held, that the party so
doing was liable to the punishment
prescribed by the former act for
taking such penalty without leave
of a court at Westminster, or with-
out judgment or conviction. RexY,
GoOey, R. & R. C. C. 84.
A. threatened B. that he would
inform against him for selling spirits
without a licence, unless B. would
give him a sum of money. B. had
not, in fact, sold any spirits, but he
gave A. the money to prevent an
information.: — Held, that A. was
indictable under 18 Eliz. c. -5, s. 4,
although B. had not committed any
offence, and although no informa-
tion was ever preferred, nor any
process sued out. Reg, v. Rest, 9
C. & P. 368 ; 2 M. C. C. 125.
LIX. ExTBADTnoK Tbbatiss.
1. 7n pemra/, 622.
2. With America, 62S.
1. In General
By 29 & 30 Vict c. 121, s. 1,
'^ warrants of arrest and copies of
^^ depositions, signed or taken by or
" before a judge or competent mag-
"istrate in any foreign state wifli
" which her Majesty may have en-
" tered into, or may hereafter enter
*'• into, any treaty for the extradition
" of fugitive offenders, or perisom
" accused of crime, shall henceforth
" be received in evidence if authen-
^' ticated in the manner following,
" that is to say, if the warrant of
" arrest purports to be signed by a
"judge or other competent magis>
" trate of the coimtry in which the
" same shall have been issued, and
" if the copies of depositions pur-
" port to be certified under the
" hand of such judge or naagistrate
" to be true copies of the original
" depositions, and if the signature
" of the judge or magistrate in each
" case shall be authenticated in the
" manner usual in the respective
states or countries by the proper
officer of the departm^t of the
minister of justice, and sealed with
" the official seal of such minister ;
" and all courts of justice and mag-
" istrates in her Majesty's dominions
" shall take judicial notice of such
" official seal, and shall admit the
" documents so authenticated by it
" to be received in evidence without
" of."
By 8. 2, " the act shall be con-
" strued with the 8 & 9 Vict, c
"^113, for facilitating the admisaon
" in evidence of official and other
" documents, and also with the 14
" & 15 Vict, cu 99, amending the
" law of evidence."
By 30 & 31 Vict. c. 148, "the
^^ duration of the act is limited to
"the 1st September, 1868,"
a
u
u
WITH AMERICA.
623
These provisions, authorising the
admission in evidence of copies of
depositions certified in the manner
therein specified, are inapplicable
where the original depositions are
produced,- and such original deposi-
tions may be received in evidence
without being so certified. Dubois,
In re, alias tJoj^n^ 12 Jur., N. S.
867 ; 86 L. J., M. C. 10 ; 14 W. R.
24; 16 L.T.,N.S. 165; 2 L. R.,
Ch. App. 47— C.
" As to the forms of the warrant
" of apprehension and of commit-
"ment," see 8 & 9 Vict. c. 120.
2. With America,
By 6 & 7 Vict. c. 76, s. 1, in case
requisition should be made at any
time by the authority of the United
States, in accordance with a treaty
between them and this country of
the 9th of August, 1842, for the de-
livery of any person charged with
Siracy committed within the juris-
iction of the United States, who
shall be found within the territories
of her Majesty, it shall be lawful
for one of the secretaries of state,
by warrant under his hand and seal,
to signify that such requisition has
been made, and to require all jus-
tices of tlie peace to govern them-
selves accordingly, and to aid in ap-
prehending the person so accused,
and committing such person to gaol
for the purpose of being delivered
up to justice ; — ^Held, that the stat-
ute has reference, not to acts of
piracy jure gentium, which are
equally cognisable by all nations,
but only to such acts as are consti-
tuted piracy by the municipal law
of the United States, and which
are, therefore, not punishable else-
where than in their jurisdiction.
Tivnan, or Teman, In re, 5 B. &
S. 645 ; 11 Jur., N. S. 84 ; 9 Cox,
C. C. 522 ; 33 L. J., M, C. 201 ; 12
W. R. 858 ; 10 L. T., N. S. 499.
It is sufiicient if a warrant of a
justice, ordering the apprehension
of a person, in compliance with this
statute, is made in the form given
by 8 & 9 Vict. c. 120. lb.
In order to enable a justice of the
peace to issue his warrant under the
statute for the apprehension and^
committal for trial of an accused
person, it need not appear that there
was an original warrant for his ap-
prehension in the United States, or
depositions taken against him there.
The warrant need not allege that
the evidence before him was taken
upon oath. lb,
Li time of peace any act of dep-
redation on a ship is prim^ facie an
act of piracy : but in time of war
between two countries, the pre-
sumption is that depredation by one
of them on a ship of the other is an
act of legitimate warfare. It is im-
material whether the act was done
by soldiers or volunteers, and wheth-
er it was commanded by the bellig-
erent state, or when done ratified by
it. lb.
The 6 4fc 7 Vict. c. 76, following
the language of a treaty between
this country and the United States
of America, enacts, that all persons
charged with the crime of mui-der,
or assault with intent to commit
murder, or with the crime of piracy,
or arson, or robbery, or forgery, or
the utterance of forged paper, may
be delivered up to justice, means
such acts as amount to any of those
offences according to the law of
England, and the general law of the
United States, and does not com-
prise offences which are only such
by the local legislation of some par-
ticular state of the American union.
Windsor, In re, 6 B. & S. 522 ; 10
Cox, C. C. 1 18 ; 1 1 Jur., N. S. 807 ;
84 L. J., M. C. 163 ; 13 W. R. 658 ;
12 L. T., N. S. 807.
A paying teller of a bank at
New York, and as such was ac-
countable for the cash at the bank,
kept the paying teller*s bpok, called
the proof book, and proved his cash
by it every day. From this book
624
EXTRADITION TREATIES.
the general bookkeeper took his fig-
ures to shew the condition of the
bank on the general ledger from
day to day. The book in question
was one of the books of account at
the bank, and the property of the
bank. In it he entered by the pay-
ing teller from the receiving teller's
books, or from the lists of the de-
posits, the money received each day,
and also the amounts paid out by the
paying teller, or amounts for which
the bank was responsible each day.
The proof book also contained a
statement* of the assets of the bank
in coin and cash, so that the proof
books should each shew each day
the exact amount of money in the
bank. He falsely and with intent
to defraud entered a certain sam in
the book as assets of the bank : —
Held, that this was not a forgery
by the law of England or the gen-
eral law of the United States, and,
therefore, that he could not be giv-
en up under 6 & 7 Yict. c. 76. lb.
INDEX.
Abduction of Women and Chil-
DEEN.
1. Women, 31.
2. Children, M.
3. Indictmtnt, 35.
4. Evidence, 35.
Abortion.
See MuBDER, 353.
ACCESSOBIES.
See Principals, 26.
Adulteeation op Food and
Drink.
1 . Seli»g Unicholesome Provisiona, 35
2. Enyrossing or RegrcUing, 36.
Agents.
Seu Embezzlemeitt^ 129.
Appbeiiension and Arrest of Of-
fenders.
1. Statutes, 602.
2. Bi/ Vunstubies and Private Indi-
vidwils, 602.
8. Warrattt of Justices, 605.
4. Bench Warrants, 606.
See CoiNiso, 93 J MuRDEB, 363.
Arson and Bubning.
1. Statutes, 36.
2. The Offence, 36.
8. Places of Divine Worship, ZT.
4. Dwetliug-houses with Persons there-
in, 38.
6. What Houses or Buildings, 38.
6. Rmlway Stations and Jbuildinas,
7. Pu/i/ic Buildings, 40. [4©;
8. 0(Aer Buildings, 40.
Pish. Dig.— 47.
.^r^on and ^Burning, (concluded.)
9. Propertif in Buildings, 41.
1 0. By Gunpowder and Explosive Sub-
stances, 41.
1 1. Crofis, Stacks or Woods, 42.
12. CoiU and other Mines, 43.
13. Parties Indictable, 44.
14. Indictment, 44.
15. Evidence, 45.
Abticles of Peace.
1 . When exhibiU d generally, 607.
2. Justices, 608.
3. On passing Sentence, 609.
4. Piactice, 609.
Assault and Batteby.
1. Chmmon, 47.
2. 0« Clergymen or Ministers of Re-
ngion^ 49.
3. On Magistrates or other Persons
•preseroing Wrecks, 49.
4. On Ptace and other Officers in Ex-
ecution (fDuly, 49. [52.
5. On Seamen, Keelmen or Casters,
6. On obstructifg Sale of Grain or its
free Passage, 52. [52.
7. Arising from Trade Combinations
or Conspiracies , 52.
8. Occasioning actual Bodily harm,
9. Indictment and Evidence, 53.
10. Punishment, 54.
1 1 . Costs of Prosecution, 54.
12. Summary Convictions, 54.
(a) Statute, 54. [56.
(b) Comftlainant or Informant,
(c) Bearing and Certificate, 56.
(d) Aggmva'edupon Womenand
Children, 57.
(e) Amounting to Felony, 58.
(f ) /YnM, 58.
13. Indecent and with Intent to ravish
— See Kape, Abitbb awd De-
filement OP WoMEW AJfP
Children, 428.
14. With Intent to rob^See BOB-
BERT.
626
INDEX.
Bail.
1. Fe/ony, 610.
2. In Misdemeanors and other Cases ,
611.
Bigamy.
1. The Offence, 59. [62.
2. On Absence or Death of Parties^
3. Whi^e Tiialdey 64.
4. Indict nifmt^ 64.
5. Evidence and Witnesses, 65.
Burglary and Housebreaking.
1. Statutes^ 66.
2. Breaking and Entering , 67.
3. Breoking outy 68.
4. Bu Ij)dqers, 69.
5. What is Night-time, 69.
6. What is a Dwelling-house^ 69.
7. What, is not a Dwelling-house, 71.
8. Breaking into Churches atid Places
of Divine Worship, 72.
9. The Curtilage, 73.
10. Otrnership, 74.
11. Intent, 75. [76.
12. A rmefl with Intent to break or enter,
13. Sleitlintf in a Dwelling-house, 77.
14. In ScliotJs, Shops, WareJiouses or
Counting-houses, 78.
15. Part its Indictable, 79.
16. Indictment, 79.
17. Eoidtnce and Trial, 81.
Children.
See Abduction, 34 ; Murder, 366;
Persons capable op CaiMKS,
24 ; UArE, 435.
Coining.
1. Statutes, 82.
2. Interpretation, 82.
3. Whit is Coining, 83.
4. Colouring, 85.
5. Imp lirmg or Lightening Gold or
Silrer Coin, 85. [86.
6. Buying or Selling Counterfeit Coin,
7. Exrhniiging Coin at higher than its
Vtdue, 87.
8. Importing or Exporting Counterfeit
Coin, 87.
9. D'/'acing Gold, Silver or Copper
Ojin, 87.
10. Testing Genuineness of Gold or
Silver Coin, 87.
11. Counterfeiting and uttering Copper
Coin, 88.
1 2. Counterfeit ing and uttering Foreign
Coin, 89.
13. Implements of Coining, 90.
14. Unlawful Possession of Base Coin,
Filings or Clippings, 93,
16. Uttering, 94.
Coining, (concluded.)
16. When Offt^ce complete, 97.
17. Enidenc^, 98.
18. Premotis Conviction, 98.
19. Valid it if of Concictions and Comr
mitments, 99.
20. Conveying Coining Tools or Coin
from the Mint wittioui Authority,
99.
21 . Pow-er to seize Counterfeit Coin ana
Coining Tools, 99.
22. Ap^trehension of Offenders, 99.
23. Prosecution and Trial of Offen-
ders, 100.
24. Punii/iment of Offenders, lOCL
25. Costs of Prosecution, \iiO.
26. Actions against Pei^ons acting in
pursuance of the Statute, 101 -
Concealment of the Bibto of
Children.
I
1. The Offence, 101.
2. Indiftment, 104.
3. Evidence, 103.
Conspiracy.
1. The Offence, 103.
2. Traile Otmbf'na'ions, 107.
3. Parties IndictMe, 109.
4. Indictment, 109.
5. PartictJars uf Overt Acta, 113.
6. Evidence, 113.
7. Trial and Verdict, 117.
8. New Trial, 118.
Costs.
1. Expenses of Prnsrcution, ^\ 3,
2. Rewards for eriraordinary Exer-
tions and Diligence, 615.
8. In other Cfis*«, 615.
4. After Remond by Certiorari, 615.
5. Practice, 619.
6. Taxation, 621.
7. Enforcing Payment, ^2 \.
See CoisiNo, 100: Forgbrt,
229.
Counsel.
1. Appearance and Defence fcy, 529-
2. Addressing the J tin/, 530.
3. Right of R^jJy, hi'ii.
4. Summing up EvidetKe, 533,
Criminal Information — Whkk^
granted.
1, '^ General Principles, 1.
2. Ex-nffirio by the Attorney^ Gen-
eral, 2.
S^ For LiMlous PuWicat'ons, 2.
(b) What are, 2,
(b) Whienlidtdto,^.
INDEX.
627
Criminal Information, (concluded.)
( r ) NecesKury A^ffidaviU, 4.
( d ) Proof of P ublicaiion , 4 .
(e) Form and VtUidity of In-
formation, 5.
(f ) Justifying Publication^ 6.
(tr) Ccw/j», 7.
4. Against Magistrates, 7.
(a) GrouTMs^ 7.
( b ) Time of Application, 9 .
( c ) NiAice of Application, 9.
5. Sending a Challenge, 10.
6. Against Parish Officers, 11.
7. In Othtr Cases, 1 !.
8. Application for Information, W.
9. Time, 13.
10. Affidavits, 13.
11. Other Points of Practice, 15.
12. G>sts, 16.
13. Conviction, 16.
duellixg, 118.
Embezzlement and Frauds by
Agexts, Bankers, Trus-
tees AND Others.
1 . Agents and Bankers, 139.
2. Trustees, 142.
3. Directors, Aft mhers and Officers of
Companies, 143.
4. Disclosure of Circumstances, 144.
5. Jurisdiction of Quarter Sessions,
144.
6. By Traders.
Embezzlement by Clerks and
Servants.
1. The Offence, 118.
2. Amountinq to Larceny, or Embez-
zlement, 134.
3. Indictment, 136.
4. Particulars of Charges, 137.
5. Eoideuce, 136.
Error and Appeal.
1 . Error, 590.
2. Wh^n an Appeal lies, 594.
3. Cvurt of Criminal AppecU, 594.
4. Rules and Practice, 595.
Escape, Rescue and Prison
Breach, 600.
Evidence.
1. Confessions and Admissions, 535.
2. Df^ptfsitions, 550.
(m^ Mode of taking, 550.
(h) Pftnrning, 555.
(c) lUiifSs, Denth, Insanity or
Absence of Witnesses, 557.
£vide9ic€, (concluded.)
fd^ Examination on, 559.
(e) Copies, 561.
3. Presumptions or Probabilites of
Guilt, 562.
4. Accomplices, 562.
5. Government Si'if's, 564.
6. Competency of Witnesses, 565.
7. Compelling Attendance, 568.
8. Swearing, 568.
9. Ordering to leave Court, 570.
10. Names on Back of Indictment, 570.
11. De>laraiions in Articulo Mortis,
571.
12. Examining and Cross-examining
Witnesses, 571.
13. Declining to answer, 572.
14. Evidence of Chaiacter, 573.
15. Evidence of Identify, 574.
16. Privileged Cummunic itions, 574.
1 7. Evidence of other simil tr Offences,
18. Previous Conviction, 576. [576.
19. -fl/ap» or Plans, 578.
20. Letters, 578.
21 . Proof of Handwriting, 579.
22. Proff of Documents by attesting
Witnesses, 579.
23. Notice to produce, 579.
24. Production and Inspection of Doc-
uments, 580.
25. On other Points, 580.
See Abduction, 35 ; Arsox, 45 ;
Bigamy, 65; Burglary, 81;
Coining, 98; t^ONCEALMEiTT
OP B1BTH8, 105 ; Conspiracy,
113; e&ibkzzlkment, 138;
False Prktencks, 167 ; Forg-
ery, 225 ; Larceny, 304 ;
McRDKR, 371 ; Phrjury, 411;
KiGHT PoAi Hi.NG, 391 ; Prin-
cipals, 30 ; Kapk, 432; Riots,
442; Hobbkky, 449; Threat-
ening Letters, 466.
Extradition Treaties.
1. In general, 622.
2. With America, 623.
False Pretences and Cheats.
1. Statutes, 145.
2. What are, 146.
(a) General Principles, 146.
(b) By means of False Orders,
151.
(c) By means of False Accounts,
152.
(d) By means of Contracts, 153.
(e) As to the Qjuality of Articles
of Merchandise, 155.
(f ) Astoth- Quantity or Weight
of Articles of Merchandise,
156. [158.
(g) By Promises of Marriage,
I
628
INDEX.
liaise 'Pretejwes^ (concluded.)
(li) B^ mmns of Chcoues, Bills
of Exchange or Promissoi-y
Notes, 158.
(i) By jtfissi'ng off Flash or
Worthless "Bank NoteSy
160.
( j ) In rpsprct of whit Chattel^ or
Spcitnties, 161.
3. Cheats, 162.
4. Inducing j)€rsons hy Fraud to exe-
cute or dent i-oji VaLiable Securities.
5. Amonnti'iff to lj(ircenif,\&3. [162.
'6. Parties Indictable, 1*64.
7. Jnd'cnne.ot, 164.
8. Evidence, 167.
9. yV/tf/, 169.
10. Rfoiviiuj Property obtained by
False Prtttnces, i70.
FoRCiBLK Entry axd Detainer,
170.
Forgery.
1. SfntHfes, 17.3.
2. What is Eorqery, 174.
3. l^hf Ihstrnment, 176.
(h) Bai,k Notea, 1 76.
0»3 ^^^^^ of Exchange and Pro-
missory Notes, 182.
(q) Chequf'S, 188.
(f\) Do iiments purporting to be
' m -de Abrofia, 189.
(o) Court Rolls, 190.
(f) Del^ntioes, 190.
(r) Dted.ior Bmds, 190.
(U) Evidential Instruments^ 191.
(\) Extheqner Bills or Bonds,
191.
Q) India Bonds, Stock or Cer-
tificates, 193.
(k) Marriage Licenses and Cer-
ti mates, 193.
(\) Orders and Proceedings of
M igistrates, 193.
(m) Records, Judicial and Cu-
rlal Process, 1 94.
fn) Registers of Births f Mar-
riages and Deaths, 196.
Co) Registries of Defds^ 197.
(\}) Seals of the Kingdom t 197.
(i\) Stamps, 198.
(t) Trad'' Marks, 199.
( s) Transfer of Stock or Shares,
199.
ft) ]yarranfs, Orders, Under-
takings, Requests and Re-
cn'/tts for Goods or for
Money', 201.
00 Tr///«, 212.
(v) Instrnmenfs o'herwise desig-
nated, 2\ 3.
4. Obtaining Pioperty upon Forged
Instruments, 214.
Forgery^ (concluded.)
5. Parties I ndiriii'le,i\4.
6. Indictment, 2i^.
7. Allegation a»d Proof of Intent to
defraud, 220.
8. Jurisdiction to try, 222.
9. Election of Forgeries, "223.
10. Uttering, '213.
11. Evidence, 225.
12. Witnesses, 2-2^.
13. Power to seize Forr/ed Instruments
or Implements, 229.
14. Punishment, 22!l.
15. Costs of Pi-osecution, 229.
Government Stores, 229.
Gunpowder.
1 . Illegal Making, Us* and Employ
went, 231.
2. Intent to murder hy — See MuR-
DBR, AND OFFESsbS AGAINST
THE PkR«*ON.
3. Inflicting Injuries by — See Mur-
der.
See Arson, 41 ; Murder, 364.
Indictment, 473.
See Abductiov 35 ; Arsox, 44;
ASSADLT, 53 ; HlOAMT, 64 J
Burglary. 79; Oovspiract,
109; concbalmkntof klrths,
104; Malicious IvJURY, 321;
Embkzzi.kment, 1.36; Falsb
Prbtbncks, 164; Korgert,
215; L.vRCKNY, 298; Mdrder,
370; Night 1*o\ciiiko, 890;
Principal*, 29 ; Procbdurs,
473; Pkrjuuy. 403; Raps,
431; Riots, 441; Theason.OOO
Robbery, 419; Threates-
INO Letters, 465.
Judgment and Sentence.
1 . Form and Entry n^neraily, 535.
2. At NiM Prns,' 5SS,
3. Brinqing up Iwfre Court ofQaten^s
Bench, 5^9.
4. Arrest of .590.
5. Reoersdl.'b'Ji).
Op Juries and Challenges.
1. Grand, 529,
2. Jurymen, 521.
3. CVi tllenge^, 523.
4. Viete, 527.
5. Lorking-up, 527.
6. Discharge of, 527.
7. Jury FiroctsB, 528.
INDEX.
629
Lakceny and Rbceivebs,
1.
3.
4.
5.
6.
7.
8.
9.
10.
11/
12.
13.
U.
15.
16.
17.
18.
19.
20.
What ammnts to a Taking, 232.
(a) General Prtnciplea, 232.
fb) On Sale or Purchase of
Goods, 238.
(c) By a Trick or a Fraxid, 240.
CdJ On Breach of Contract to
sell, 243.
fe^ By Hirers of Property, 244.
fQ From Bailees at Common
Law, 244. [245.
fp) By Btnleesat Common Ltiw,
(U) Btf Paicning Property, 246.
(i) Means of facilitating or de-
tecting Larceny, 247.
fj^ In Case of Lost Property,
247.
(k) Reeenty of Possession of
iytoltn Property, 250.
fl^ Servants taking Master's
Com for feeding Horses,
• 251.
fm; By Husband and Wife, 251.
(n) Ijy Wife's Paramour, 252.
(o) By Clerks or Servants, 253.
Cp) By Fraudulent Bailees, 258.
(q) By Parties in concert, 260.
By Persms in the Queen's Service,
or by the Police, 260.
By Post Office Servants and Others
In a D'tellinghouse, 2G4. [261.
From the Person, 266.
By Tenants or Lodgers, 267.
In Munu fill tori* s, 267.
Frota Min&t, 268.
In Ships in Ports or on Navigable
Hive: sand Wharves, 269.
Abroad or on the High St as, 269.
Sttating or dratroying Written In-
struments, 270.
Stealing or destroying Trees, Shrubs,
VegetaUtsand Fences, 271.
Attempts to commit Larceny, 274.
Subject matter of Larceny, 2 74 .
Letters and Governntent Documents,
Fixtures, 278. [277.
Gdtle and oth^r Animals, 279.
Cm; Statute, 279.
(h) Horse St&aling, 279.
0') aitt/^281.
(d) Sheep Stealing, 281.
fc) Deer, 282.
0) Difves or Pigeons, 284.
(iz) Fish, 284.
(U) Doijs, 286. [287.
(\) Birds and other Animals,
0) Carcasses or Skins, 288.
The Ownership, 289.
B&eivers of Stolen Property, 294.
(aj Statutory Prorisions, 294.
0^) Who ore Receivers, 295.
(v) Joint Receivers, 296.
fd) HuslKindand Wife, 297.
Indictment for Stealing and Re-
ceiving, 298.
(si) Stealing, 298.
(b) Stealing and Receiving, 301 .
iMTceny^ etc, (concluded.)
21. Jurisdiction to try, 303.
22. Evidence, 304.
23. Punishment, 307.
24. Restitution and Recovery of Stolen
Property, 307.
Malicious Injuby to Property,
Cattle and other An-
imals.
1 . Houses or Buildings, by Tenants,
310.
2. Manufactures and Materials, 310.
3. Machinery, 312.
4. Mines, 313.
5. Sea and River Banks, 31 5.
6. Ships and Sea Signals, 315.
7. Fish Ponds, 317.
8. Trees, Shrubs, Fences and Vege-
taldes, 318.
9. Hopbinds, 320.
10. Works of Art, 320.
11. Indictment, 32\ .
12. A mount of Injury ,321.
13. Witnesses, 321.'
14. Killing or Maiming Cattle or other
Animals, 322.
15. Railways and Telegraphs — See
XXX. Railways, 425.
Mines.
See Arso!^, 43; Larceny, 268;
Maliciocs Ii«jcby, 313.
Misdemeanors,
1 . What Indictable in general, 323.
2. Attempt to commit, 324.
Murder, Manslaughter, and Of-
fenses AGAINST THE PER-
SON.
1 . Murder, 326.
2. Manslaughter. 334.
3. Abroad and at Sea, 346.
4. Principals, Accessories and Abet-
tors, 349.
6. Conspiring, or Soliciting to commit
Murder, 350.
6. Attempts to Murder and Inflicting
grievous Bodily Harm, 350.
fa^ By Administering Poison,
350.
(h) With Intent to procure Mis-
carriage or ALorfion, 3.53.
(c) By Shooting, Wounding,
Drowning, Suffocating or
Strangling, 354.
fdj Inflicting Grievous Bodily
Harm, 358.
(e) By Resisting or Preventing
the Apprehension or De-
tainer of Persons, 363.
630
INDEX.
Murder^ etc.^ (concluded.)
(f) By Means of Gunpotoder or
other Explosive Substan-
ces,364.
(s) ^y f^i^inq Fire to or casting
away Ships ^ 365.
(h) Presenting Rescue from
Shipiereckf 365.
(\) By other Means, 365.
7. Spring Guns,3S6.
8. lUlreating Children, Apprentices,
Servants, Idiots, ana Helpless
Perwns, 366.
Cm; The 0/rence,S^6.
(h) Indictment, 370.
(v) Evidence, 37 \.
9. Injuring Persons 6y Wanton or
Furwus Driving, 371.
10. Indictment for Murder and Man-
sltiughtrr, '37 \.
11. Declarations in Articulo Mortis,
375.
12. Evidence and Witnesses, 3S0.
13. Trial, Judgment, and Execution
in Murder, 382.
14. Punishment for Manslaughter, 3S3.
New Trial, 581.
Night Poacittng and Offenses
RELATING TO GaME,
Hares and Rabbits.
1. The Offence, 384.
2. Limitation of Time for Prosecu-
tion, 389.
3. Indictment, 390.
4. Evidence, 391.
5. Convi't ons and Commitments, 392.
6. Ilares or Rabbits, 392.
Obscenity and Indecenct.
1. Obscene Prints and Pictures, 393.
2. Indecent Exposure, 393.
Officers.
See Embkzzlbmekt, 143.
Pardon, 601.
Parties Indictable.
See Burglary, 99; Conbpiract,
169; Falsb Pretences, 164;
FOKQERT, 214.
Perjury, False Oaths and False
Declarations.
1. Fal>e Oaths, 395.
2. On Affidavits, 398.
3. Before Justices, 400.
4. Before Surrogates, 402.
Perjury^ etc.y (ccncluded.)
5. Before Arltitrators, 402.
6. InfUctment and Information, 408.
7. Amnkdmeht of Variances, 410
8. Evidence, 411.
9. Pionfbtf Judges* Notes of Evidence
414. [414.
10. Proof of Pnrticulir Averments,
1 1 . Proof of Indirtment, 416^
1 2. Witnesses and Corroborative Evi-
dence, 416.
13. Trial, 418.
14. Fa'se Dirlarations, 419.
(a) Customs, 419,
(b) On Rtgistrafion of Voters
andai Parliamentary Elec-
tions, 419.
(c) Corporate. 420.
(i\) Before Magistrates, 420.
(e) On Registnifinn of Births,
Deaths or Marriages, 421 .
15. Seditious Practices cmd Unlawfid
Oaths, 422.
Personation.
1. Stockholders, 423.
2. Seamen and Soldiers, 423.
3. Voters, 424.
Persons capable of coMMrrnNG
Crimes and Misdemean-
ors.
1. Agents, 17.
2. Insane Persons, 17.
3. Deaf and Dumb. 21.
4. Presumed Co*-rcion of Wife, 22.
5. Drunhirds, 23.
6. Foreigners, 23.
7. Corporal iutis, 24.
8. Infants, 24.
9. Peers, 24.
10. Persons under Compulsion, 24.
Poisoning.
1 . Placing Poison in Plantations, 424.
2. Murder bg — C>re Murder.
3. AdminiUe' ing with Intent to Mur-
der— See M r R I >R R.
4. To procure Aboition — See MuK-
DEE.
?RizE Fights, 425.
Principals, Accessories and
Abettors.
1. Principal, 2.>.
2. Accessories, 26.
3. Abettors, 28.
4. Trial, 28.
5. Indirtment, 29.
6. Evidence, 30.
INDEX.
631
Pbocediire and Practice.
1. Indictment^ 473.
(») For what it /*>«, 473,
f b) Disolteylng Orders of Justices
and Others, 474.
(r) Qwishinff, 475.
(tl) Ttial when Indictment is not
(food, 477.
(2) Finding, 477.
0"j Ignoring, All.
(g) Previous binding of Prose-
cutor, 477.
(\\) Copff 0/ Indictment, 480.
0^ Venue, 481.
(']) Caption, 486.
(k) Sereral Counts, 487.
0^ As to the Allegations^ 487.
(in^ Dvsr.riptiim of the party ac-
cused, 489.
(n) Allegations of Titne and
Place, 489.
• (o) Name of Party Injured,
4g0.
fp^ Description of Property or
Instrument, 492.
-. (q) Value, 493.
(rj Contra Pacem and Contra
Formam Statuti, 494.
(s) Of Joining Offences and
Fleeting, 495.
(t^ Time arid At ode of raising
Furmal Objections, 497.
00 Amendment, 498.
(\) Nolle Prosequi, 502.
2. Central Criminal Court, 502.
00 Jurisdiction, 502.
3. Tnul, 503.
(a) Jurisdiction, 503.
0») A nrAignment and Plea, 504.
(c) Withdrawing Plea of Not
Guilty, 505.
(<\) Standing in the Dock, 505.
(e) Reading Indictment, 505.
0) SpfKtnite Tried, 506.
Ci?3 liight of A rquittal on Indict-
ment of Several, 506.
fh^ Pontjyming or Adjourning,
506.
fi^ Illntss of Prisoner during
Trial, 508.
Q) Trial on a Verdict in a Civil
Case, 508.
fkj Tendering Bill of Excep'
tions.
4. Pleas in Alnttement, 509.
5. Pleas of Autrefois Convict and
Acquit, 509.
6. Demurrers, 514.
7. Peroffnizances, 515.
8. Commissions and Gad Delivery,
517.
9. Restoring Money found on Prison-
ers, 518.
1 0. Contempt of Court, 519.
11. Affidavits^ 519.
Punishment.
1. Penal Servitude, 5')7.
2. Rtturning therefrom, 598.
Railways and Telegraphs.
1. Endangering Safety of Persons on
Railways, 425.
2. Obstructing Engines or Carriages
on, 427.
3. Injuring Telegraphs, 427.
See Arson, 40; Malicious In-
JDBT, 425.
Rape, Abuse and Defilement
OP Women and Child-
ren.
1. Rape, 428. [430.
fa) Who capable of Committing,
(b) Upon whom Committed, 430.
(c) Accomplishment or Comple-
tion, 431.
(6) Indictment, 431.
(e) Evidence, 432.
(i) Where Tnable, 435.
2. Abuse of Children, 435.
3. D^fiUment, 438.
Riots and Unlaavful Assem-
blies.
1. Nature and Character, 439.
2. Illegal Training and Drilling, 4i0.
3. Duties oftfic Magistracy, 440.
4. Aiding and Assisting the Consta-
bulary, 441.
5. Indictment, 44 1 .
6. Ecidence, 442. [442.
7. Injuries to Property by Rioters,
Robbery.
1. The Offence, 445.
2. Garotting, 448.
3. Indictment, 44'J.
4. Evidence, 449.
5. Assault with Intent to Rob, 450.-
6. Punishment of Whipping, 452.
Sanitary Laws, 452.
Sea, Offences at, 453.
Search Warrants, GOG.
Sedition, 454.
Sepulture.
1. Desecration, 454,
\
632
INDEX.
Sodomy and Bestiality, 455.
Suicides and Sei^p Maiming, 457.
Threatening Lettees and Men-
aces.
1. Statutes, 457 .
2. Demanding Money or Valuables
with Menaces, 457.
3. Thre'itening to accuse of Crime, or
with Intent to Extort, 460.
4. Letters threatening to Bum or De-
stroy, 463.
5. Letters threatening to Murder, 464
6. Threatening to sue for Penalties
464.
7. Threatening to Publish Defamatory
Matter, 464.
8. Persons Indictable, 465.
9. Indictment, 465.
10. Evidence, 466.
Treason.
1. The Offence, 467.
2. Indictment, Lists of Witnesses,
Jury, Evidence, Thai and Judg-
ment, 468.
Treasure Trove, 472.
Trial, 503.
See Coining, 100; Conspiract,
117, 118; Falsb Prbtkncbs,
169; MuBDBR, 382; Pjcrjubt,
418; Pri^ccipalb, 28: Procb-
DURE, 477.
Trustees.
See Embbzzlemestt, 142.
Verdict, 580.
Witnesses.
See Abductiok, 31 ; Bioamt, 65 ;
Forobrt, 2!%9; Mai.iciou8 Isr-
JDRT, 331 ; Pbrjurt, 416.
Wife.
See Eyidbncb, 535; Larobst, 251,
297.
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