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 And Presented Pebr*i|ary 14, 1893 
 
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 JUDGE DOUGLASS BOARDMAN 
 
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 A, M, BOARDMAN and EUl^EN D, WILLIAMS 
 
KD 7869?H3T ""'""■'"'y Library 
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Cornell University 
 Library 
 
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PEINCIPLES 
 
 THE CEIMINAL LAW. 
 
 A CONCISE EXPOSITION OF THE NATURE OP CRIME, 
 
 THE VARIOUS OFFENCES PUNISHABLE BY THE ENGLISH LAW, 
 
 THE LAW OP CRIMINAL PROCEDURE, 
 
 AND THE LAW OF SUMMARY CONVICTIONS. 
 
 TABLE OF OFFENCES, THEIR PUNISHMENTS AND STATUTES ; 
 TABLES OF CASES, STATUTES, &o. 
 
 BY 
 
 SEYMOUE F. HABBIS. B.O.L., M.A. (Oxon.), 
 
 BABKISTEK-AT-LAW OF THE INNER TEMPLE, AND OF THE 
 
 NOKTHEBN CIHOUIT ; 
 
 AUTHOR OF 'a CONCISE DIGEST OF THE INSTITUTES OF GAIUS AND JUSTINIAN.' 
 
 LONDON : 
 
 STEVENS AND HAYNES, 
 
 BELL YARD, TEMPLE BAR. 
 1877. 
 
PEINTED BY WILLIAM OLOWES AND SONS, 
 8TA1IE0HD SIEEET AND CHAEIHa 0EOS8. 
 
PEE FACE. 
 
 The appearance of a new work on tlie Criminal Law may 
 demand a few words of explanation. Many treatises dealing 
 with this subject are already in existence. Why another ? 
 A mere enumeration of the modern standard authors will 
 disclose the want of a manual which neither confines itself 
 to the historical and philosophical view of the matter, nor 
 descends into the minute particulars of the practice of the 
 law. To mention those that are best known : — ' Eussell on 
 Crimes ' is contained in three bulky volumes, and has little 
 concern with criminal procedure. Archbold's and Eoscoe's 
 Criminal Practice, entering into every detail, are designed 
 for the reference of the practitioner, when points actually 
 present themselves. The modern commentaries founded on 
 those of Blackstone stray into historical disquisitions which 
 are apt to envelop the existing law in obscurity ; and, be- 
 sides, the Criminal Law is contained in one of four volumes. 
 Sir James Fitzjames Stephen's 'Greneral View of Criminal 
 Law ' does not profess to be an exposition of the offences 
 and criminal procedure of our country : it has quite another 
 object. 
 
 It seems, then, that there is scope for a comparatively 
 small treatise concerning itself with the nature of crimes, 
 the various offences punished by the law, and the proceed- 
 ings which are instituted to secure that punishment. Such 
 a work is calculated to meet the requirements of the young 
 practitioner, who, in the first instance, wants a general in- 
 troduction to the subject. It is also designed for the use of 
 students, especially those preparing for the final examination 
 of the Incorporated Law Society. To such, as well as to 
 the general reader, it is hoped that the present undertaking 
 will commend itself. 
 
 We have referred above to certain well-known works on 
 
VI PBEFAOE. 
 
 Criminal Law. These, the reports, the older text-books, and 
 other authorities haye been made to contribute information 
 as the occasion required. Special acknowledgment is due, 
 and is hereby rendered, to the ' General View ' of Sir James 
 Fitzjames Stephen, from which frequent quotations have 
 been made and matter borrowed, to an extent sufficient to 
 lead to further perusal of that work. 
 
 It is hoped that, while nothing useless and obsolete has 
 been retained, there has not been any omission which will 
 prevent the reader from obtaining a fair general view of the 
 existing Criminal Law. 
 
 S. F. H. 
 
 Liverpool, Spring Assizes, 1877. 
 
 An explanation must be given of the manner in which the 
 punishments affixed to the various crimes are set forth in 
 the body of the work. It was thought that much repetition 
 might be avoided if attention were drawn to a few general 
 rules. Only the maximum limit of penal servitude is noticed 
 in the text, as, with very few exceptions which are specially 
 pointed out, the minimum limit is five years. Where penal 
 servitude may be awarded, almost without exception (any 
 exception being mentioned), the court has the alternative of 
 sentencing to imprisonment for a term not exceeding two 
 years ; therefore such imprisonment has not generally been 
 specified. The rules as to hard labour, whipping, and solitary 
 confinement are adverted to in the chapter on Punishment. 
 A reference to the Table of Ofi'ences at the end of the volume 
 will clear up any difficulty which may arise. 
 
CONTENTS. 
 
 . BOOK I. 
 
 CHAP. 
 
 Inthoductokt Chapter. Ceimb 
 II. Divisions of Okimb . . . . 
 
 III. Essentials of a Crime 
 
 IV. Persons capable of committing Crimes 
 V. Prdjcipals and Accessories . 
 
 PAQB 
 
 1 
 
 7 
 12 
 19 
 33 
 
 BOOK II. 
 
 PAET I. 
 
 OFFENCES OP A PUBLIC NATURE. 
 
 I. Offences against the Law of Nations ... 41 
 
 Piracy ......... 41 
 
 Offences as to Slaves ..... 44 
 
 II. Offences against the Government and Sovereign . 45 
 
 Treason 45 
 
 Misprision of Treason 53 
 
 Attempts to alarm or injtjre the Queen . . 53 
 
 Trbason-Felont 54 
 
 Sedition 55 
 
 Unlawful Oaths and Societies .... 56 
 
 Offences against the Foreign Enlistment Act . 58 
 
vm 
 
 CONTENTS. 
 
 Desertion, Mutiny, and inciting thbebto 
 
 iLLBaAL TBAININa AND DkILLING . 
 
 Unlawful Dealinos with Public Stoebs 
 Offbnces by Members of thb Army and Navy 
 Coinage Offences . 
 Concealment of Treasure Trove 
 
 III. Offences against Ebligion . 
 
 Apostacy, Blasphemy . 
 Disturbing Public Worship . 
 Witchcraft, Sorcbky, &c. 
 
 IV. Offences against Public Justice 
 
 Escape ..... 
 
 Breach of Prison 
 
 Being at Large during Tebm of Penal Servitude 
 
 Ebsoub ..... 
 
 Obstructing lawful Arrest, &c. 
 
 Perjury .... 
 
 Subornation of Pbkjury 
 
 Voluntary Oaths 
 
 False Declarations 
 
 Bribery .... 
 
 Embracery, &c. 
 
 Common Barratry 
 
 Maintenance 
 
 Champerty .... 
 
 Compounding Offences . 
 
 Misprision of Felony . 
 
 Criminal Dealings with Eecords 
 
 Extortion, &c. 
 
 Contempt of Court 
 
 V. Offences against the Public Peace 
 
 Riot 
 
 Affray .... 
 
 Challenge to Fight 
 Sending Threatening Letters 
 Libel and Indictable Slander 
 Forcible Entry and Detainer 
 
CONTENTS. 
 
 IX 
 
 CHAP. PAGE 
 
 VI. Offences against Ptjblio Tkade ..... 113 
 
 Smuggling 113 
 
 Offences against the Bankrupt Lavs . . .115 
 Counterfeiting Tbadb-Mabks ... . . 118 
 Unlawful Inteeferencb with Tbadb by Combina- 
 tions, &c 119 
 
 VII. CONSPIBACT 123 
 
 VIII. Offences against Public Morals, Health, and Good 
 
 Order 127 
 
 Bigamy 127 
 
 Indecent Conduct ...... 129 
 
 Gaming and Gaming Houses .... 129 
 
 Common or Public Nuisances .... 131 
 
 Adulteration and Unwholesome Provisions . . 135 
 
 Wanton and Furious Driving .... 135 
 
 Vagrancy ........ 136 
 
 Sending Unseawoethy Ship to Sea . . . 138 
 
 IX. Offences relating to Game 140 
 
 PAET II. 
 
 OFFENCES AGAINST INDIVIDUALS. 
 THEIR PEESONS. 
 
 Introduction ....... 
 
 145 
 
 I. Homicide ........ 
 
 147 
 
 Suicide or Self-Murdbr " . 
 
 153 
 
 Murder ... ... 
 
 155 
 
 Manslaughter .... 
 
 160 
 
 (Appendix) 
 
 167 
 
 II. Bapb, &c 
 
 170 
 
 Rape 
 
 170 
 
 Carnally Abusing Children 
 
 172 
 
 Unnatural Crimes 
 
 172 
 
 Attempts to procure Abortion 
 
 173 
 
 Concealment of Birth ..... 
 
 174 
 
 Abduction ....... 
 
 174 
 
 Child Stealing, Abandoning, &c. . 
 
 176 
 
CONTENTS. 
 
 CHAP. 
 
 III. Assaults, &o. ...... 
 
 Common Assault 
 
 Actual and Geievous Bodily Harm 
 Assault with Intent to commit a Felony 
 Attempt to Choke, &c., with Intent, &c. 
 Administeking Poison, &c. ... 
 
 Explosive oe Cobbosive Substances 
 ENDANGBEraa Safety of Railway Passbngebs 
 Assaults, &c., connected with Webcks 
 PoBciNG Seamen on Shobe 
 Assaults on Officbes .... 
 
 *ssaults on Othbbs in the Execution of 
 Duty ...... 
 
 Assaults on those in a Dbfencbless Position 
 False Impeisonmbnt .... 
 
 PAGE 
 
 177 
 177 
 179 
 181 
 181 
 181 
 182 
 183 
 183 
 184 
 184 
 
 184 
 185 
 186 
 
 PAET ni. 
 
 OFFENCES AGAINST INDIVIDUALS. 
 
 THEIE PROPERTY. 
 
 I. Laecent ......... 187 
 
 Compound or Aggeavatbd Labcbny . . . 207 
 
 Laecbny, &o., js eelation to the Post Office . 214 
 
 Receiving Stolen Goods ..... 216 
 
 II. Embezzlement ........ 221 
 
 III. False Pbetbncbs ........ 230 
 
 False Pebsonation 234 
 
 Cheating 236 
 
 iv. bueglaey, &0. ........ 238 
 
 housebebaking ....... 244 
 
 (Recapitulation) ........ 246 
 
 y. foegeby 249 
 
 Fbauds against Land Teansfeb, &c., Acts . . 259 
 
 VI. Injueibs TO Peopbbty 261 
 
 Aeson ......... 261 
 
 Malicious Injuby 266 
 
CONTENTS. 
 
 XI 
 
 BOOK III. 
 
 CRIMINAL PEOOEDUKE. 
 
 CHAP. 
 
 I. Prevention op Offences .... 
 II. Courts of a Criminal Jurisdiction 
 
 The High Court op Parliament . 
 
 Court of the Lord High Steward 
 
 Queen's Bench Division op the High Court 
 
 Assizes 
 
 Central Criminal Court 
 
 Quarter Sessions 
 
 Court op the Coroner . 
 
 University Courts in Oxford and Cambridge 
 (Sketch op a Criminal Trial) 
 
 III. Arrest .... 
 
 IV. Proceedings before the Magistrate 
 V. Modes op Prosecution 
 
 VI. Place op Trial 
 VII. The Grand Jury 
 VIII. Process 
 IX. Certiorari 
 X. Time op Trial, &o. 
 
 Arraignment 
 
 Confession 
 
 XI. Pleas 
 XII. Demurrer . 
 
 XIII. The Petty Jury 
 
 XIV. The Hearing 
 
 (Appendix) 
 
 XV. The Witnesses 
 
 Credibility of Witnesses 
 Number op Witnesses 
 
 XVI, The Examination op Witnesses 
 XVII. Evidence .... 
 
 Circumstantial and Presumptive Evidence 
 Written Evidence .... 
 
xu 
 
 CONTENTS. 
 
 
 CHAP. 
 
 
 PAGE 
 
 xvin. 
 
 Vbkdict . . ..... 
 
 424 
 
 XIX. 
 
 Jddqmbnt ........ 
 
 429 
 
 XX. 
 
 Incidents of Trial 
 
 431 
 
 XXI. 
 
 Punishment ....... 
 
 435 
 
 XXII. 
 
 Pboceedisgs after Trial 
 
 447 
 
 
 New Trial ...... 
 
 447 
 
 
 
 448 
 
 
 Court for Grown Cases Eeservbd 
 
 450 
 
 XXIII. 
 
 Reprieve and Pardon ..... 
 
 453 
 
 XXIV. 
 
 Execution 
 
 457 
 
 
 BOOK IV. 
 
 
 SuMMABV Convictions .... 
 
 Juvenile Oependbrs .... 
 Proceedings upon Summary Conviction 
 
 458 
 465 
 466 
 
ABBREVIATIONS 
 
 Editions of Text-Books and Periods oompeised in Eeports. 
 
 Addison 
 
 A. &E. 
 Arch. . 
 Arch. Q. S. 
 
 Austin 
 
 Bac. Abr. 
 Barn. K. B. 
 
 B. & Aid. 
 B. &C. 
 Best, Ev. 
 B. &S. 
 Bing. . 
 Bing. N. C. 
 Bl. . 
 Bl. W. 
 Broom, C. L, 
 Bull. N. P. 
 Burn's 
 Burr. . 
 
 Camp. . 
 0. &K. 
 0. &M. 
 
 0. &P. 
 Chitty, Cr. 1 
 Chitty, St. 
 
 01. & Fin. 
 0. B. . 
 C. B. (N.S.) 
 Comer's Cr. 
 Cox . 
 C. M. & R. 
 
 . Addison on Torts, 1873. 
 
 . Adolphus and Ellis's Reports, K. B., 1834-1841. 
 
 . Archbold's Pleading and Evidence in Criminal Cases, 1875. 
 
 . Archbold's Quarter Sessions, 1869. 
 
 . Lectures on Jurisprudence, 1869. 
 
 . Bacon's Abridgment. 
 
 . Bamardiston's Reps., K. B., 1724-1734. 
 
 . Barnewall and Alderson's Reps , K. B., 1818-1822. 
 
 . Barnewall and Oresswell's Reps., K. B., 1823-1830. 
 
 . Best on Evidence, 1870. 
 
 . Best and Smith's Reps., Q. B., 1861-1870. 
 
 . Bingham's Reps., C. P., 1822-1834. 
 
 „ „ New Cases, 0. P., 1834-1840. 
 
 . Blackstone's Commentaries. 
 
 . Blackstone's (William) Reps., K. B., 1746-1749. 
 
 . Broom's Common Law, 1875. 
 
 . Buller's Nisi Prills. 
 
 . Bum's Justice of the Peace, 1869. 
 
 . Burrow's Reps., K. B., 1756-1772. 
 
 . Campbell's Reps., Nisi Prius, 1807-1816. 
 
 . Carrington's and Kirwin's Reps., N. P., 1843-1852. 
 
 . Carrington and Marshman's Reps., N. P., 1842. 
 
 . Carrington and Payne's Reps., N. P., 1823-1841. 
 
 . Chitty's Criminal Law. 
 
 . Chitty's Statutes, 1865. 
 
 . Clark and Finnelly's Reps., H. of Lords, 1831-1846. 
 
 . Common Bench Reps , 1845-1857. 
 
 „ „ „ New Series, 1857-1865. 
 
 Practice Comer's Crown Practice. 
 
 . Cox's Criminal Cases, from 1843. 
 
 . Crompton, Meeson, and Roscoe's Reps., Exch., 1834-1836. 
 
XIV 
 
 ABBREVIATIONS. 
 
 Dalton . . Dalton's Justice. 
 
 Den. . . . Denison's Crown Cases, 1844. 
 
 Dong. . . . Douglas Eeps., K. B., 1778-1785. 
 
 D. & R. . . Dowling and Eyland's Eeps., K. B., 1822-1828. 
 
 Dowl. P. C. . . Dowling's Practice Oases, K. B., 1830-1841. 
 
 East . . . East's Eeps., K. B., 1801-1814. 
 
 East, P. 0. . . East's Pleas of the Crown. 
 
 Ell. & Bl. . . Ellis and Blackburn's Eeps., Q. B., 1851-1858. 
 
 Esp. . . . Espinasse's Eeps., N. P., 1793-1807. 
 
 Exch. . . . Exchequer Eeps., 1847-1857. 
 
 Fitz. St. . . Stephen's General View of Criminal Law, 1863. 
 
 Post. . . . Foster's Eeps., Crown Law, 1743-1 T61. 
 
 F. & F. . . Foster and Finlason's Eeps., N. P., 1858-1865. 
 
 Hale, P. C. . . Hale's Pleas of the Crown. 
 
 Hal. Sum. . . Hale's Summary. 
 
 Hawk. . . Hawkins' Pleas of the Crown. 
 
 How. St. Tr. . Howell's State Trials. 
 
 H. & C. . . Hurlstone and Coltman's Eeps., Exch., 1862-1867. 
 
 Inst. . . . Coke's Institutes. 
 
 Jur. . . . Jurist Reps , 1837-1854. 
 
 Jur. (N.S.) . . „ „ New Series, 1855-1865. 
 
 Kel. . . .Sir John Kelyng's Eeps., K. B., 1673-1706. 
 
 L. J. . . . Law Journal Reps, in all the Courts, from 1831 
 
 (thus, L. J. (Q.B.), Queen's Bench Reps. ; L. J. (M.O.), 
 Magistrates' Cases). 
 
 L. E. . . . Law Reps, in all the Courts, from 1865. 
 
 L. T. (N.S.) . . Law Times Reps., New Series, from 1859. 
 
 Leach . . . Leach's Crown Cases, 1730-1788. 
 
 L. & C. . . Leigh and Care's Crown Cases, 1861-1865. 
 
 Lew. CO.. . Lewin's Crown Cases, 1822-1833. 
 
 Lord Raym. . . Lord Raymond's Reps., K. B., 1694-1734. 
 
 M. & S. . . Maule and Selwyn's Reps., K. B., 1813-1817. 
 
 May . . . May's Parliamentary Practice, 1874. 
 
 Mood. CO.. . Moody's Crown Cases, 1824-1844. 
 
 Moo. & M. . . Moody and Malkin's Reps., N. P., 1826-1830. 
 
 M. & R. . . Moody and Robinson's Reps., N. P., 1830-1844. 
 
 Oke, Mag. Form. . Oke's Magisterial Formulist, 1868. 
 
 Oke, Mag. Syn. . „ „ Synopsis, 1868. 
 
ABEEEVIATIONS. 
 
 XV 
 
 Paley, Sum. Con. . Paley's Summary Convictions, 1861. 
 
 Peake . . . Peake's Eeps., N. P., 1790-1812. 
 
 Ph. Ev. . . Phillips' Evidence. 
 
 Q. B. . . . Queen's Bench Reps. (Adolphus and Ellis), 1841-1852. 
 
 Rose. . . . Roscoe's Evidence in Criminal Cases, 1874 
 
 Euss. . . . Russell on Crimes, by Greaves, 186.5. 
 
 R. & R. . . Russell and Ryan's Criminal Cases, 1799-1824 
 
 Ry. & M. . . Ryan and Moody's Reps., N. P., 1823-1826. 
 
 Sm. L. C. . . Smith's Leading Cases, 1875. 
 
 Stark. N. P. C. . Starkie's Reps., N. P., 1815-1823. 
 
 St. Tr. . . State Trials. 
 
 St. Bl. . . . Stephen's Commentaries, 1874. 
 
 Str. . . . Strange's Reps., K. B., 1716-1747. 
 
 Tayl. Bv. . . Taylor's Evidence, 1872. 
 
 T. E. . . . Term Reps. (Dumford and Bast), 1785-1800. 
 
 T. Eaym. . . Sir Thomas Eaymond's Reps., K. B., 1660-1684. 
 
 Willes 
 
 . Willes Eeps., C. P., 1734-1758. 
 
TABLE OF CASES. 
 
 PAGE 
 
 ALLEN, R. V. (L. R. 1 0. C. R. 376 ; 41 L. J. (M.O.) 101) . 128 
 
 Almond, E. v. (5 Burr. 2686) 110 
 
 Arnold, E. v. (16 St. Tr. 764) 21 
 
 Ashford v. Thornton (1 B. & Aid. 405) . . . 336, 369 
 
 Ashman, E. v. (1 P. & P. 88) 180 
 
 Astley, E. v. (2 Bast, P. 0. 729) 211 
 
 (L. R. 1 C. C. R. 301 ; 40 L. J. (M.O.) 85) . 232 
 
 Aston, R. V. (1 Russ. 407) 257 
 
 Atkinson, R. v. (2 Mood. C. C. 278) 222 
 
 Attorney-General v, Eadloff (10 Exch. 84) ... 4 
 
 •V. Sillem (2 H. & 0. 526) ... 5 
 
 Aveson v. Lord Kinnaird (6 Bast, 198) .... 414 
 
 Aylett, R. v. (1 T. R. 69) 78 
 
 BADGER, R. ■«. (12 L. J. (M.C.) 66) . , . .318 
 
 Bailey, E. v. (12 Cox, 56) 222 
 
 Barker, Omichund v. (Willes, 538) 390 
 
 Barnard, E. ■;;. (7 0. & P. 784) 232 
 
 Barronet, In re (22 L. J. (M.C.) 25) 317 
 
 Barton, E. v. (3 Cox, 275) 23 
 
 Beardmore, E. v. (7 0. & P. 497) 354 
 
 Beezlen, E. v. (4 C. & P. 220) 401 
 
 Bellingham, E. «. (Coll. 636) 22 
 
 Berry, E. t;. (34 L. T. (N.S.) 590) 357 
 
 Bertrand, E. v. (L. E. 1 Priv. Counc. 520) . . . .448 
 
 Best, E. V. (9 C. & P. 368) 94 
 
 Bird, E. v. (2 Den. 94, 98) 364 
 
 Birmingham and Gloucester Ry. Co. v. R. (9 0. & P. 469 ; 
 
 2Q. B. 47) 31 
 
 Boulter, R. v. (21 L. J. (M.C.) 57 ; 5 Cox, 543) ... 82 
 
 Bowden, E. v. (1 0, & K. 147) 246 
 
 Boyce, R. v. (1 Mood. 0. C. 29) 180 
 
 Boyes, B. ■». (30 L. J. (Q.B.) 301) 393 
 
 Brawn, B. v. (1 C. & K. 144) 128 
 
 Brice, E. «. (R. & E. 450) 242 
 
 Briggs, E. V. (1 Mood. C. 0. 318) 180 
 
 Brighton Aquarium Co., Terry v. (L. E. 10 Q. B. 306) . . 73 
 
XVlll 
 
 TABLE OF CASES, 
 
 (M.O. 
 
 Bromage v. Prosser (4 B. & 0. 247) . 
 Broom v. Eastern Counties Co. (6 Exch. 314) 
 Brown, R. v. (0. & Mar. 314) . 
 
 (17 L. J. (M.C.) 145) . 
 
 Bryan, R. v. (26 L. J. (M.C.) 84) . 
 Bull, R. V. (9 C. & P. 22) 
 
 (2 Leach, 841) 
 
 Bulmer, R. ■;;. (33 L. J. (M.C.) 171) . 
 Burdett, B. v. (4 B. & Aid. 95) 
 
 CABBAGE, R. v. (E. & R. 292) 
 Castro, E. «. . 
 
 V. Murray (32 L. T. (N.S.) 675) 
 
 Cattell V. Ireson (27 L. J. (M.C.) 167) 
 
 Chappie, R. v. (9 C. & P. 355) . 
 
 Chinn v. Morris (2 0. & P. 361) 
 
 Chorley, R. v. (12 Q. B. 515) . 
 
 Clark, R. v. (1 Barn. K. B. 304) 
 
 Cleaver v. Senande (1 Camp. 268, n.) 
 
 Closs, R. •». (27 L. J. (M.C ) 54) 
 
 Coal Consumers' Association, Rawlings v. (43 L. J. 
 
 Codrington, R. v. (1 0. & P. 661) . 
 
 CoUey, R. v. (Moo. & M. 329) . 
 
 Collicott, R. V. (R. & R. 212) . 
 
 Collins, R. V. (5 C. & P. 305) . 
 
 (33 L. J. (M.C.) 177) . 
 
 Commonwealth v. Magee (12 Cox, 549) 
 
 Corporation of London, R. v. (27 L. J. (M.C.) 231) 
 
 Crahb, E. V. (11 Cox, 85) 
 
 Cross, R. V. (2 C. & P. 483) . 
 
 Cruse, R. v. (8 C. & P. 541) . 
 
 CuUum, R. V. (L. R. 2 C. C. E. 28 ; 42 L. J. (M.C.) 64) 
 
 DADSON, R. V. (20 L. J. (M.C.) 57) 
 
 Dammaree, R. v. (8 St. Tr. 218) 
 
 Danby's Case (Lords' Journal, 1679) 
 
 Dawson and Others, Trial of (13 How. St. Tr. 456) 
 
 Deer, R. v. (32 L. J. (M.C.) 33) 
 
 Delaney v. Jones (4 Esp. 191) . 
 
 Denton B. v. (21 L. J. (M.C.) 207) . 
 
 Dixon, R. V. (3 M. & Sel. 15) . 
 
 Donnally, E. v. (2 East, P. C. 713) . 
 
 Duffy, E. V. (2 Cox, 45) . 
 
 Dugdale, E. v. (Corner's Cr. Prac. 167) 
 
 Dunn, E. v. (1 Leach, 57) 
 
 Dyson, E. v. (E. & E. 523) . 
 
 )111) 
 
 PAGE 
 
 265 
 
 31 
 
 78 
 
 358 
 
 232 
 
 150 
 
 201 
 
 233 
 
 56 
 
 205 
 
 358 
 
 449 
 
 4 
 
 37 
 186 
 448 
 110 
 108 
 254 
 432 
 231 
 401 
 254 
 
 52 
 17, 204 
 384 
 433 
 231 
 133 
 
 29 
 223 
 
 149 
 
 49 
 285 
 
 42 
 
 220 
 
 108 
 
 8 
 
 15 
 211 
 
 56 
 431 
 254 
 154 
 
TABLE OF CASES. 
 
 XIX 
 
 PAOB 
 
 EASTERN COUNTIES Co. v. Broom (6 Exoh. 314) . . 31 
 
 Eaton, E. v. (2 T. E. 89) 351 
 
 Edmonson v. Stevenson (Bull. N. P. 8) . . . . 108 
 
 Edwards, E. «. (4 T. E. 440) 317 
 
 (3 Cox, 82) 401 
 
 Bgglngton, E. v. (2 Leach, 913) . . . .197, 212 
 
 Elsworth, E. V. (2 East, P. C. 986) 255 
 
 Esop, E. V. (7 0. & P. 456) 28, 31 
 
 Evans, E. v. (1 Euss. 426) 157 
 
 PADBRMAN, E. v. (1 Den. 569 ; 3 C. & K. 353) 
 
 Falkingham, R. v. (L. E. 1 C. C. E. 222 ; 39 L. J. (M.O.) 47) 
 
 Earler, E. v. (8 0. & P. 106) . 
 
 Ferguson, E. v. (24 L. J. (M.O.) 61) 
 
 Fitzroy, Linford v. (18 L. J. (M.C.) 108) 
 
 Flannagan, E. v. (E. & E. 187) 
 
 Flower v. Shaw (2 C. & K. 703) 
 
 Foster, E. v. (E. & E. 459) 
 
 Frances, E. v. (4 Cox, 57) 
 
 Francis, R. v. (L. E. 2 0. C. E. 128 ; 43 L. J. (M.O.) 97) 
 
 Friend, R. v. (E. & R. 20) 
 
 Frost, R. V. (9 C. & P. 129) . 
 
 GARDEN, White v. (10 C. B. 927) 230 
 
 Gardner, E. v. (1 0. & P. 479) 105 
 
 Garside, E. v. (2 A. & E. 266) 351 
 
 Gaylor, E. v. (7 Cox, 253) 35, 163 
 
 Gibbons, E. v. (12 Cox, 237) 128 
 
 Giles, R. ■y. (34 L. J. (M.C.) 50) 231 
 
 Gill, R. V. (2 B. & Aid. 204) 124 
 
 Goldsmith, R. v. (L. R. 2 0. C. R. 74 ; 42 L. J. (M.C.) 94) . 368 
 
 Gordon, R. v. (Doug. 593) 48 
 
 Graham, Solomon v. (5 Ell. & Bl. 320) . . . .349 
 
 Greenwood, R. v. (21 L. J. (M.C.) 127) .... 38 
 
 Griggs, R. V. (T. Raym. 1) 388 
 
 Gutch, R. V. (Moo. & M. 433) ... . . Ill 
 
 HANDLEY, E. v. (1 F. & F. 648) 
 Hardy, R. v. (1 East, P. C. 60) 
 
 -(24 How. St. Tr. 753) 
 
 Harvey, R. v. (1 Leach, 467) . 
 Hassell, R. v. (30 L. J. (M.C.) 175) 
 Easting's Case 
 
 Haynes, R. v. (1 F. & F. 666) . 
 Hayward, E. v. (6 C. & P. 157) 
 Hazleton, E. v. (L. E. 2 C. C. R. 134 
 Heymann, v. R. (L. E. 8 Q. B, 102, 105) 
 
 368 
 
 176 
 
 395 
 
 . 330 
 
 . 318 
 
 . 240 
 
 . 254 
 
 . 79 
 
 . 24 
 
 233, 410 
 
 . 157 
 
 . 49 
 
 . 176 
 
 . 48 
 
 390, 405 
 
 . 198 
 
 . 201 
 
 . 284 
 
 . 23 
 
 . 161 
 
 44 L. J. (M.C.) 11) . 232 
 
 . 325, 368 
 
 C 2 
 
XX 
 
 TABLE OF CASES. 
 
 Hibbert, E. ■;;. (L. E. 1 0. 0. E. 184; 38 L. J. (M.O.) 61) 
 Hill, E. V. (B. & E. 190) 
 Hodgkins, E. ■;;. (7 C. & P. 298) 
 Hodgson, E. v. (3 0. & P. 422) 
 
 (1 Leach, 6) . 
 
 Holland, E. v. (2 M. & E. 351) 146^ 
 
 Holman, E. v. (3 Jur. (N.S.) 722) 
 
 Holmes, E. v. (L. E. 1 0. C. E. 334; 41 L. J. (M.O.) 12) 
 
 Holt, E. V. (30 L. J. (M.C.) 11) 
 
 Hornby, Weld v. (7 East, 199) 
 
 Hughes, E. V. (1 Mood. C. C. 370) 
 
 Hunt, E. V. (3 B. & Aid. 566) . 
 
 Hurley, E. v. (2 M. & Eob. 473) 
 
 I' ANSON V. Stuart (1 T. E. 748) 
 Ion, E. V. (21 L. J. (M.O.) 166) 
 Ireson, Oattell v. (27 L. J. (M.O.) 167) 
 
 JACKSON, E. V. (3 Oamp. 370) 
 
 (1 0. & K. 384) 
 
 Jacobs, E. V. (1 Mood. 0; 0. 140) 
 Jarrald, E. ■;;. (32 L. J. (M.O.) 258) 
 Jenkins, E. •;;. (E. & E. 224) . 
 Johnson, E. v. (2 East, P. 0. 488) 
 
 , E. V. (3 M. & Sel. 566) 
 
 Jones, E. v. (8 0. & P. 288) . 
 
 (2 0. & K. 236) . 
 
 (11 Cox, 544) 
 
 , Delaney v. (4 Esp. 191) 
 
 , Stanley v. (7 Bing. 369) 
 
 , State V. (50 New Hamp. Eep. 369) 
 
 Jordan, E. v. (9 0. & P. 118) . 
 
 KBIE V. Leeman (6 Q. B. 308; 9 Q. B. 371) 
 Keyn, E. v. (46 L. J. (M.O.) 17) 
 Kinnaird, Aveson v. (6 East, 198) 
 Knill, E. V. (5 B. & Aid. 929, n.) 
 Knox, Miller v. (4 Bing. (N.O.) 574) 
 
 LAKE, E. V. (11 Cox, 333) . 
 
 Langmead, E. v (L. & 0. 427). 
 
 Lapier, E. v. (1 Leach, 320) 
 
 Leach, Money i.. (1 Bl. W. 555) 
 
 Lee, E. v. (9 Oox, 304) . 
 
 Leeman, Keir v. (6 Q. B. 308; 9 Q. B. 371) 
 
 Lewis, E. V. (1 Str. 70) . 
 
 Linford v. Pitzroy (18 L. J. (M.O.) 108) 
 
 PARE 
 
 176 
 233 
 405 
 224 
 152 
 ,157 
 382 
 171 
 233 
 133 
 222 
 410 
 255 
 
 108 
 
 257 
 
 4 
 
 232 
 
 224 
 
 128 
 
 243 
 
 239 
 
 241 
 
 9 
 
 224 
 
 205 
 
 163 
 
 108 
 
 91 
 
 23 
 
 382 
 
 93 
 
 341 
 
 414 
 
 82 
 
 98 
 
 235 
 220 
 212 
 307 
 231 
 93 
 79 
 318 
 
TABLE OP OASES. 
 
 XXI 
 
 Lister, B. v. (26 L. J. (M.C.) 26) 
 Lockett, E. V. (1 Leach, 94) . 
 Long, E. V. (4 C. & P. 398), . 
 Lovelass, E. v. (6 C. & P. 596) 
 Lovett, R. V. (9 0. & P. 462) . 
 
 MACDANIEL, E. v. (1 Leach, 45) 
 
 (Post. 131) . 
 
 (Fost. 121) . 
 
 McGrath, E. v. (L. E. 1 C. 0. E. 205 ; 39 L 
 McGrowther, E. v. (Fost. 13 ; 9 St, 
 
 J.( 
 
 Tr. 566) 
 Macleod v. Wakeley (3 C. & P. 311) . 
 McNaughlen, E. v. (10 01. & Fin. 200 ; 1 0. & K, 
 Magee, Commonwealth v. (12 Cox, 549) 
 Mahon, E. v. (4 A. & E. 575) . 
 Manning, E. v. (2 C. & K. 903) 
 Mansell, E. v. (27 L. J. (M.C.) 4) 
 March, E. v. (1 C. & K. 496) . 
 Marks, E. v. (3 East, 157) 
 Martin, E. v. (5 0. & P. 130) . 
 
 (E. & E. 108) . 
 
 (L. E. 1 C. C. E. 378 ; 41 L. J. (M.C.) 113) 
 
 Mead, E. v. (4 C. & P. 535) . 
 
 (3 D. & E. 301) . 
 
 Meadows, E. v. (2 Jur. (N.S.) 718) 
 
 Middleton, R. v. (L. R. 2 C. C. E. 38 ; 42 L. J. (M.C.) 73) 
 
 Miller v. Knox (4 Bing. N. 0. 574) 
 
 Money v. Leach (1 Bl. W. 555) 
 
 Moore, E. v. (3 C. & K. 319) . 
 
 Morris, E. v. (9 C. & P. 349) . 
 
 (E. & E. 270) 
 
 Morris, Chinn v. (2 C. & P. 361) 
 Mulcahy v. R. (L. E. 3 H. L. Ap. Ca. 306) 
 Mullany, E. v. (34 L. J. (M.C.) Ill) 
 Murray, Castro v. (32 L. T. (N.S.) 675) 
 
 NASH, E. V. (21 L. J. (M.C.) 147) 
 Negus, R. V. (L. R. 2 C. C. E. 34 ; 42 L. J. 
 Neil, E. V. (2 C. & P. 485) 
 Neville, E. v. (Peake, 91) 
 Noakes, E. v. (4 P. & P. 921, n.) 
 Norman, E. v. (C. & Mar. 501) 
 Nott, E. V. (12 L. J. (M.C.; 143) 
 
 OLIPIEE, E. V. (10 Cox, 402) 
 Omichund v. Barker (Willes, 538) 
 Osborn, E. v. (1 Barn. K. B. 138, 166) 
 
 (M.C. 
 
 M, 
 
 .0.) 7) 
 130) 
 
 )62) 
 
 PAGE 
 
 224 
 254 
 163 
 57 
 356 
 
 125 
 155 
 212 
 200 
 
 29 
 107 
 
 22 
 384 
 178 
 
 29 
 376 
 177 
 
 57 
 157 
 240 
 432 
 192 
 352 
 382 
 •199 
 
 98 
 307 
 
 26 
 197 
 
 29 
 186 
 124 
 
 81 
 449 
 
 256 
 222 
 133 
 133 
 153 
 224 
 84 
 
 175 
 390 
 107 
 
XXll 
 
 TABLE OF CASES. 
 
 PARTRIDGE, R. v. (7 0. & P. 551) 
 
 Pater, ExpaHe (5 B. & S. 299) 
 
 Patch, R. V. (1 Leach, 238) . 
 
 Pateman, E. v. (R. & E. 455) . 
 
 Pearoe, R. v. (Peake, 75) 
 
 Pearson's Case (2 Lew. 0. 0. 144) . 
 
 Pedley, E. v. (1 Leach, 327) . 
 
 Pemhliton, E. v. (L. R. 2 0. 0. E. 119 ; 43 L. J. (M.O.) 91) , 
 
 Pigott, R. V. (11 Cox, 45) 
 
 Pike, State v. (49 New Hamp. Rep. 399) 
 
 Price, R. V. (8 0. & P. 19) 
 
 Prince, E. V. (L. R. 2 0. 0. R. 154 ; 44 L. J. (M.O.) 122) 
 
 Pritchard, E. v. (7 0. & P. 303) 
 
 Privett, R. v. (2 0. & K. 114) . 
 
 Prosser, Bromage v. (4 B. & 0. 247) . 
 
 EADLOPF, Attorney-General v. (10 Exch 
 
 Eagg, E. V. (29 L. J. (M.O.) 86) 
 
 Eawlings v. Coal Consumers' Association (43 
 
 Eeed, R. v. (23 L. J. (M.C.) 25) 
 
 Rhodes, R. v. (2 Lord Raym. 886) 
 
 Rice, R. V. (3 Bast, 581) . 
 
 Eidgway, R. v. (3 P. & P. 838) 
 
 Riley, R. v. (22 L. J. (M.C.) 48) 
 
 Eitson, R. V. (L. E. 1 C. C. E. 200 ; 39 L. 
 
 Eoherts, E. v. (25 L. J. (M.C.) 17) 
 
 Eobinson, R. v. (2 Burr. 799) . 
 
 ( 4 P. & F. 43) 
 
 Eobinson, In re (23 L. J. (Q.B.) 286) 
 Eobson, R. V. (R. & E. 413) . 
 Rogers, E. v. (1 Leach, 89) 
 Eourke, E. v. (E. & E. 386) . 
 Rowland, E. v. (Ry. & M. 401) 
 Eowton, E. V. (34 L. J. (M.O.) 57) 
 Roxburgh, R. v. (12 Cox, 8) . 
 Eudd, E. V. (1 Leach, 115) 
 Russell, R. V. (C. & Mar. 541) 
 (1 Mood. 0. C. 377) 
 
 SAINSBURT, R. v. (4 T. E. 451) 
 Salisbury, E. v. (5 C. & P. 155) 
 Sansome, E. v. (19 L. J. (M.O.) 143) 
 Savage, R. v. (5 C. & P. 143) . 
 Scaife, E. v. (5 Jur. 700) 
 
 (2 Den. 281) 
 
 Scattergood v. Sylvester (15 Q. B. 506) 
 
 84) . 
 
 L.J. (M.C.) Ill) 
 
 J. (M.O.) 10) 
 
 PAGE 
 
 220 
 
 97 
 
 200 
 
 254 
 
 410 
 
 25 
 
 80 
 
 272 
 
 55 
 
 24 
 
 30 
 
 176 
 
 357 
 
 206 
 
 265 
 
 4 
 231 
 432 
 . 188 
 . 82 
 . 104 
 . 232 
 . 200 
 . 254 
 . 17 
 . 322 
 . 217 
 . 317 
 . 200 
 . 240 
 . 245 
 359, 388 
 . 409 
 . 178 
 . 359 
 . 265 
 . 241 
 
 . 95 
 
 . 410 
 
 . 415 
 
 . 199 
 
 . 317 
 
 . 414 
 
 . 434 
 
TABLE OF CASES. 
 
 XXUl 
 
 Sell, E. V. (9 0. & B. 346) 
 Senande, Cleaver v. (1 Camp. 268, n.) 
 Shaman, E. v. (23 L. J. (M.C.) 51) . 
 Sharpe, E. v. (26 L. J. (M.C.) 47) . 
 Shaw, Flower v. (2 0. & K. 703) 
 Sherwood, E. v. (26 L. J. (M.C.) '81) 
 Sillem, Attorney-General v. (2 H. & C. 
 Smith, E. V. (1 Mood. C. C. 289) 
 
 (E. & E. 267) 
 
 (E. & E. 417) . 
 
 ■ (24 L. J. (M.O.) 135) 
 
 (L. E. 1 0. 0. E. 266 ; 39 L. 
 
 Smyth, E. v. (5 0. & P. 201) . 
 Solomon v Graham (5 Ell. & Bl. 320) 
 Spanner, E. v. (12 Cox, 155) . 
 Spencer, E. v. (E. & E. 299) . 
 Squire, E. v. (E. & E. 349) 
 Stanley v. Jones (7 Bing. 369) 
 Steadman, E. v. (Post. 292) 
 Stevenson, E. -e. (2 Leach, 546) 
 
 , Edmonson v. (Bull. N. P. 8) 
 
 Steward, E. v. (2 Bast, P. C. 702) 
 Stone, E. v. (4 C. & P. 379) . 
 Stopford, E. V. (11 Cox, 643) . 
 Stuart, I'Anson v. (1 T. E. 748) 
 SuUivan, E. o. (11 Cox, 44) . 
 Swindall, E. v. (2 C. & K. 230) 
 Sylvester, Scattergood v. (15 Q. B. 506) 
 
 TAYLOE, E. V. (1 P. & P. 511) 
 
 Terry v. Brighton Aquarium Co. (L. E. 10 
 
 Thomas, E. v. (Car. Sup. 295) . 
 
 (7 C. & P. 817) . 
 
 (33 L. J. (M.C.) 22) . 
 
 Thompson, E. v. (1 Mood. C. C. 78) . 
 
 (32 L. J. (M.C.) 53) 
 
 (L. E. 1 C. C. E. 377 ; 41 
 
 Thornton, Ashford v. (1 B. & Aid. 405) 
 Thurbom, E. v. (11 L. J. (M.C.) 140; 2 C, 
 Tite, E. V. (30 L. J. (M.C.) 142) 
 Tivnan, In re (5 B. & S. 645) . 
 Toakley, E. v. (10 Cox, 406) . 
 Tolfree, E. v. (1 Mood. C. 0. 243) 
 Topham, E. v. (4 T. E. 126) . 
 Torpey, E. v. (12 Cox, 45) 
 Townley, E. v. (L. E. 1 C. 0. E. 315 ; 41 L, 
 
 FA&B 
 
 . 358 
 . 108 
 . 253 
 
 5 
 . 254 
 
 4 
 626) ... 5 
 
 . 223 
 
 . 239 
 
 . 217 
 
 J. (M.C.) 112) . 216 
 
 . 112 
 
 . 349 
 
 . 242 
 
 . 222 
 
 . 222 
 
 . 91 
 
 . 162 
 
 . 432 
 
 . 108 
 
 . Sll 
 
 . 92 
 
 . 181 
 
 . 108 
 55,56 
 
 . 163 
 
 . 434 
 
 . 17 
 
 Q. B. 306) . . 73 
 
 . 246 
 
 . 26 
 
 . 68 
 203, 212 
 
 . 202 
 
 L. J. (M.C.) 112) 388 
 336, 369 
 
 & K. 831) . 203 
 
 . 222 
 
 . 42 
 
 . 382 
 
 . 203 
 
 . 107 
 
 . 30 
 
 J. (M.C.) 144) 189, 193 
 
XXIV 
 
 TABLE OF OASES. 
 
 Trenfleld, E. v. (1 F. & P. 43) . 
 Turner, E. v. (8 C. & P. 755) . 
 (13 East, 228) . 
 
 VAMPLEW, E. 0. (3 F. & F. 520) 
 Vandercomb, E. v. (2 Leaoh, 708) 
 Vane, E. i;. (Kel. 15) 
 Vaughan, E. v. (4 Burr. 2494) . 
 Vincent, E. v. (9 0. & P. 91) . 
 
 WAKELBY, Macleod v. (3 0. & P. 311) 
 Walker, E. v. (1 0. & P. 320) . 
 Ward, E. v. (5 L. J. (K.B.) 221) 
 Watkins, E. ■;;. (1 Leach, 520) . 
 Watson, E. v. (2 Starkie N. P. 0. 128) 
 Webb, E. V. (11 Cox, 133) . 
 Weld V. Hornby (7 East, 199) 
 Wenbom, E. v. (6 Jur. 267) . 
 Westwood, E. v. (E. & E. 495) 
 Wheatley, E. v. (2 Burr. 1125) 
 White, E. V. (1 Burr. 333) 
 
 (3 Oamp. 97) 
 
 White V. Garden (10 0. B. 927) 
 Wilkins, E. v. (1 Dowl. P. C. 536) 
 
 (1 Leach, 520) . 
 
 Wilkinson, E. v. (E. & E. 470) 
 WilUams, E. v. (1 0. & K. 195) 
 
 (8 0. & P. 286) 
 
 (11 Oox, 684) . 
 
 Williamson, E. v. (11 Cox, 328) 
 Wolstenholme, E. v. (11 Cox, 313) 
 Wood, B. V. (1 Mood. C. C. 278) 
 
 (10 Cox, 573) 
 
 Woodgate, Wright v. (2 C. M. & E. 573) 
 Woodhall, E. V. (12 Cox. 240) . 
 Wright, E. V. (2 F. & F. 320) . 
 
 (B. & E. 456) . 
 
 (27 L. J. (M.C.) 65) 
 
 Wright V. Woodgate (2 C. M. & E. 573) 
 
 YEWIN'S CASE (2 Camp. 638) . 
 York's Case (Fost. 70) . 
 Young v. E. (3 T. E. 105) 
 
 ZULUETA, E. V. (1 C. & K. 215) . 
 
 PAGE 
 
 256 
 174 
 126 
 
 156 
 
 363 
 
 48 
 
 86 
 
 100 
 
 107 
 163 
 ,133 
 230 
 403 
 386 
 133 
 432 
 240 
 4 
 132 
 383 
 230 
 432 
 200 
 202 
 212 
 170 
 174 
 231 
 224 
 180 
 378 
 108 
 214 
 327 
 404 
 223 
 108 
 
 394 
 
 27 
 
 330 
 
 44 
 
TABLE OF STATUTES. 
 
 3Bdw. 1,0. 15 . . . 
 23 Bdw. 1 {Stat, defromg 
 1 Edw. 2, St. 2, c. 1 
 25 Edw. 3, St. 5, o. 5 
 5 Eich. 2, c. 8 . 
 13 Hen. 4, c. 7 . 
 
 28 Hen. 8, c. 15 . 
 33 Hen. 8, c. 9, s. 11 
 35 Hen. 8, c. 2, s. 1 
 1 Edw. 6, 0. 1 . 
 5 & 6 Edw. 6, c. 16, s. 2 
 1 & 2 Mary, c. 10 
 1 Eliz. c. 2 . 
 8 Eliz. c. 2 . 
 13 Eliz. 0. 5 . 
 18 Eliz. c. 5 . 
 27 Eliz. c. 4 . 
 31Eliz. c. 5 . 
 
 -,s.4 
 
 4 Jac. 1, 0. 5 . 
 21 Jac. 1, c. 7, s. 
 
 ,c. 8 
 
 ,0.15 
 
 16 Car. 1, c. 21 
 
 29 Car. 2, o. 7 
 . (,_ 9 
 
 31 Car. 2, a. 2 
 
 ,5 
 
 ^;s.7 
 
 , s. 12 
 
 1 Wm. & M. St. 2, 0. 
 
 4 & 5 Wm. 3, 0. 18 
 
 5 & 6 Wm. 3, 0. 11 
 7&8 Wm. 3, o. 3 
 
 2,4 
 
 , s. 5 
 
 ; a. 11 
 
 9 & 10 Wm. 3, 0.32(0.35) 
 
 10 & 11 Wm. 3, 0. 17 
 
 11 & 12 Wm. 3, c. 7, ss. 8 
 
 12 & 13 Wm. 3, c. 2 
 
 pris, 
 46 
 
 1-3 
 
 FAOE 
 
 317 
 
 76 
 
 76 
 
 ii seq. 
 
 112 
 
 102 
 
 42 
 
 130 
 
 341 
 
 73 
 
 86 
 
 53 
 
 73 
 
 90 
 
 237 
 
 94 
 
 237 
 
 332 
 
 337 
 
 138 
 
 138 
 
 276 
 
 112 
 
 69 
 
 73 
 
 73 
 
 317 
 
 315 
 
 319 
 
 454 
 
 317 
 
 349 
 
 353 
 
 51 
 
 52,395 
 
 331 
 
 286 
 
 71 
 
 134 
 
 43 
 
 454 
 
 1 Anne, st. 2, c. 17, s. 3 
 
 6 Anne, o. 7 . 
 
 7 Anne, c. 21, s. 11 
 9 Anne, o. 14 . 
 
 1 Geo. 1, St. 2, 0. 5, ss. 1, 5, 8 
 6 Geo. 1, c. 19 . 
 
 8 Geo. 1, c. 24, s. 1 
 
 11 Geo. 1, c. 4 . 
 
 12 Geo. 1, 0. 29, s. 4 
 
 2 Geo. 2, 0. 25, s. 2 
 , c. 28 . 
 
 9 Geo. 2, c. 5 . . 
 
 11 Geo. 2, c. 19 . 
 
 12 Geo. 2, c. 28 . 
 
 13 Geo. 2, 0. 19 . 
 
 16 Geo. 2, c. 31, s. 3 
 
 18 Geo. 2, 0. 30 . 
 ,0.34 . 
 
 19 Geo. 2, c. 21 . 
 
 24 Geo. 2, c. 44 . 
 
 25 Geo. 2, o. 37, s. 9 
 6 Geo. 3, 0. 50, s. 61 
 12 Geo. 3, 0. 20 . 
 , 0. 24, s. 1 
 
 17 Geo. 3, 0. 54, s. 26 
 21 Geo. 3, c. 49 
 
 25 Geo. 3, o. 18 
 
 26 Geo. 3, c. S6 
 32 Geo. 3, c. 48 
 , c. 60 
 
 36 Geo. 3, c. 7, s. 
 
 37 Geo. 3, c. 70 
 
 ,s.2 
 , c. 123, ss. 
 
 1,2 
 
 38 Geo. 3, c. 52 _ 
 
 39 Geo. 3, o. 69, s. 1 
 (,_ 79 
 
 39 & 40 Geo. 3, c. 93 
 
 , c. 94, s. 1 
 
 , s. 2 
 
 45 Geo. 3, c. 125 . . ; 
 
 PAGE 
 
 51 
 
 51 
 
 52 
 
 130 
 
 102, 148 
 
 43 
 
 43 
 
 96 
 
 90 
 
 83,440 
 
 43 
 
 72 
 
 459 
 
 130 
 
 130 
 
 75 
 
 43 
 
 130 
 
 72 
 
 307 
 
 77 
 
 89 
 
 356 
 
 264 
 
 472 
 
 73 
 
 288 
 
 283 
 
 288 
 
 110 
 
 51,54 
 
 60 
 
 337 
 
 57 
 
 338 
 
 264 
 
 58 
 
 52, 377 
 
 24, 426 
 
 25, 357 
 . 283 
 
XXVI 
 
 TABLE OF STATtTTES. 
 
 48 Geo. 3, 0. 58, s. 1 . . 
 
 49 Geo. 3, c. 126, ss. 1, 3, 4 
 5-1 Geo. 3, c. 100 . . . 
 52 Geo. 3, o. 104, ss. 1, 2 
 
 , c. 155, B. 12 . 
 
 , c. 156 . . . 
 
 54 Geo; 3, c. 146 . . . 
 
 56 Geo. 3, c. 138, s. 2 . 
 
 57 Geo. 3, c. 6, s. 1 . . 
 
 . ,0.7 . . . 
 
 0. 19 . 
 
 59 Geo. 3^ o'. 46 '. '. '. 
 
 -r-- , c. 69 . . . 
 
 60 Geo. 3 & 1 Geo.4,c.l,ss 
 
 _ : . , S 
 
 1 Geo. '4, c. 67, s. 2 . 
 1 &'2 Geo. 4, 0. 88, s. 
 3 Geo. 4, c. 114 . . 
 4Geo..4, c. 48, s. 1 . 
 
 , c. 52, s. 1 . 
 
 , c. 76, s. 21 . 
 
 5 Geo. 4, c. 83 
 
 , B. 
 
 , s. 
 
 ,0.84 
 
 ,3 
 .4 
 .5 
 .15 
 
 ,22 
 
 , c. 113, ss. 9-11 
 
 6Geo.4, 0. 50 . 
 
 -, s. 1 
 
 , ss. 20, 29 
 
 , s, 42 
 
 . — . , s. 62 
 
 7 Geo, 4, c. 16, s. 38 
 
 ■ , 0. 64, s. 4 
 
 , s. 9 
 
 . , s. 12 
 
 , s. 13 
 
 . -, s. 14 
 
 , s, 19 
 
 — , s. 21 
 
 = ■ — -, s. 22 
 
 r , s. 23 
 
 , ss. 24, 25 
 
 , s. 27 . 
 
 , ss. 28, 30 
 
 7 & 8 Geo. 4, o. 28. s. 2 
 
 ,0.29 
 
 s. 3 
 
 S.4 
 ss. 8, 9 
 s. 10 
 
 PAGE 
 
 304, 347 
 . 86 
 . 338 
 . 57 
 . 72 
 . 75 
 . 52 
 . 94 
 . 51 
 60, 337 
 . 58 
 
 336, 369 
 . 58 
 
 1,2 
 
 7 . 
 
 61 
 . 331 
 . 441 
 . 77 
 . 440 
 . 430 
 . 154 
 . 129 
 . 136 
 . 136 
 72, 137 
 . 138 
 . 137 
 . 454 
 76, 77, 340 
 . 44 
 370, 372 
 342, 371 
 . 377 
 . 372 
 . 52 
 . 235 
 . 335 
 . 324 
 338, 339 
 . 340 
 . 324 
 . 362 
 . 368 
 . 397 
 . 398 
 . 397 
 . 341 
 . 312 
 . 357 
 . 377 
 . 364 
 436, 442 
 437 
 
 s. 11. 420, 436, 442 
 s. 2 . . . 197 
 
 7 & 8 Geo. 4, c. 53 
 
 9 Geo. 4, c. 31, s. 2 
 
 , s. 10 . 
 
 ,0.32 . . 
 
 , c. 69, B. 1 . 
 
 ,s.2 . 
 
 ,s.4 . 
 
 • , s. 9 . 
 
 , s. 12 . 
 
 -, s. 43 
 
 140, 
 
 11 Geo. 4 & 1 Wm. 4, c. 70, 
 
 1 & 2 Wm. 4, c. 32 
 
 2 Wm. 4, c. 34 . 
 
 2 & 3 Wm. 4, c. 53, s. 49 
 
 3 & 4 Wm. 4, c, 49 
 ' — , c. 82 
 
 4 & 5 Wtd. 4, 0. 36 
 
 , s. 22 
 
 0.47 
 c. 67 
 
 5 & 6 Wm. 4, 0. 33 
 
 6&7 
 
 , e. 62, ss. 13, 18 
 
 , c. 63 
 
 , 0. 76 
 
 ' — -, s. 34 
 
 ■ , s. 103 
 
 : — •—, ss. 105, 
 
 , s. 121 
 
 Wm. 4, c. 30, s. 2 . 
 
 7Wm, 
 
 ,c. 85, ss. 38,39,41 
 , 0. 86, B. 41 
 
 , 0.111. . 
 
 , 0. 114, ss. 3, 4 
 
 4&1 Vict. 0.36 
 
 , s. 25 
 ,8.26 
 , ss. 27- 
 , s. 30 
 , s. 31 
 , s. 32 
 , s. 36 
 , s. 37 
 , s. 40 
 , s. 41 
 , s. 42 
 
 141, 
 
 PAGE 
 
 458 
 
 337 
 
 45 
 
 150 
 
 255 
 
 465 
 
 . 141 
 
 142, 331 
 
 141, 297 
 
 . 140 
 
 35 294 
 
 . 465 
 
 . 63 
 
 . 235 
 
 . 391 
 
 . 391 
 
 . 292 
 
 42, 288 
 
 . 294 
 
 . 76 
 
 352, 353 
 
 352 
 
 84 
 
 300 
 
 236 
 
 84 
 
 299 
 
 &c.. 298 
 
 342, 371 
 
 . 430 
 
 129 
 84 
 . 411 
 . 319 
 . 214 
 . 214 
 
 214, 440 
 ■29. 215 
 
 . 218 
 . 215 
 . 214 
 . 215 
 
 215, 338 
 . 215 
 
 215, 218 
 440 
 
 0.88,88.2,3 . 43 
 
 0.90,8.5 . . 443 
 
 • — — c. 91, s. 1 44, 57, 60, 
 
 77 
 1 & 2 Vict. 0. 38 136 
 
 c. 45 318 
 
 — c. 77 391 
 
 c. 94, s. 19 . . . 95 
 
TABLE OF STATUTES. 
 
 XXVU 
 
 2 & 3 Viot. c. 82, s. 1 
 
 3 & 4 Vict. o. 54, s. 3 
 
 4 & 5 Vict. c. 36, ss. 16- 
 
 5 & 6 Vict. c. 38 . . 
 c. 51 . . 
 
 21 
 
 6 Vict. c. 18 . . 
 
 , s. 81 
 
 6 & 7 Vict. c. 34 . 
 
 c. 85; 
 
 0. 94 . . 
 
 c. 96, s. 3 
 
 , ss. 4, 5 
 
 s. 1 
 
 7 & 8 Vict. c. 2 
 
 , s, 
 
 0.29 
 
 ,7 
 -,s.8 
 
 c. 71 
 
 8 & 9 Vict. c. 68, s. 
 c. 109 
 
 9 & 10 Vict. c. 24 
 
 -, ss. 4, 
 -, s. 17 
 
 ,s.4 
 
 c. 33 . 
 
 c. 95, s. Ill 
 
 10 & 11 Viot. c. 82 
 
 c. 89 
 
 11 & 12 Vict. c. 12, 
 
 0.42 
 
 1 
 
 3 
 
 12 
 
 14 
 
 s. 1 
 
 ss. 3, 4 
 s. 6 . 
 s. 7 . 
 
 ss. l", 2 
 s. 3 
 s. 4 
 ss. 8, 9 
 s. 10 
 
 S.11 
 
 ss. 12-15 
 s. 16 
 s. 17 
 s. 18 
 s. 19 
 s. 20 
 s. 21 
 s. 23 
 
 PAGE 
 
 . 341 
 24, 426 
 293 
 
 295 
 
 53 
 
 52 
 
 236 
 
 84 
 
 306 
 
 386 
 
 289 
 
 112 
 
 111 
 
 56, 106 
 
 . Ill 
 
 111, 399 
 
 288, 341 
 
 . 42 
 
 140, 465 
 
 . 140 
 
 . 298 
 
 . 450 
 
 . 130 
 
 . 131 
 
 129, 233 
 
 . 435 
 
 . 450 
 
 . 58 
 
 . 421 
 
 . 465 
 
 . 466 
 
 364, 466 
 
 434, 466 
 
 . 398 
 
 . 138 
 
 . 51 
 
 . 54 
 
 . 50 
 
 . 55 
 
 304, 466 
 
 . 304 
 
 305, 346, 347 
 
 . 306 
 
 . 305 
 
 . 306 
 
 306, 347 
 
 . 306 
 
 . 313 
 
 313,414 
 
 314,415 
 
 . 313 
 
 314, 320 
 
 . 314 
 
 316, 318 
 
 11 & 12 Vict. 0. 42, s. 25 
 -, S.27 
 
 43 
 
 23, 24, 26 
 
 -, s. 1 
 
 -, s. 2 
 
 -, s. 3 
 
 -,s.7 
 
 -, ss. 10, 11 . 
 
 -, ss. 12-16 . 
 
 -, ss. 18, 19, 21, 
 
 FAGE 
 
 . 315 
 . 319 
 
 . 466 
 
 . 468 
 
 467, 468 
 
 . 468 
 
 469 
 
 -, s. 35 
 
 0.44 . . 
 
 c. 78, s. 1 . 
 
 , s. 2 . 
 
 , s. 3 . 
 
 , s. 4 . 
 
 , s. 5 
 
 12 & 13 Vict, c. 45, s. 11 
 0. 96 . . 
 
 13 & 14 Vict. c. 21, ss. 7, 8 
 
 c. 25 . . 
 
 c. 37 . . 
 
 , ss. 1, 2 
 
 14&15 Viot. o. ]9, s. 11 
 
 0. 55, ss. 2, 3 
 
 , ss. 5, 8 
 
 , s. 14 
 
 , s. 18 
 
 , ss. 19, 21, 23, 
 
 24 
 
 c. 99 
 
 ,13 
 , s. 16 
 
 467 
 469 
 
 471 
 467 
 466 
 451 
 452 
 451 
 452 
 449 
 473 
 289 
 419 
 291 
 465 
 466 
 310 
 398 
 312 
 298 
 306 
 
 338 
 . 95 
 364,420 
 . 80 
 0. 100, s. 1 . . . 326 
 
 , s. 9 17, 204, 425 
 
 ,s.l2 126,232,425 
 
 , s. 19 . . 82 
 
 •, s. 23 323, 325, 338 
 
 , s. 24 . 196, 325, 
 
 327, 362, 368 
 ■,B.25 326,368,449 
 
 -, s. 27 
 ,29 
 
 15 & 16 Vict. 0. 26 
 c. 61 . , 
 
 16 & 17 Vict. c. 30, s. 2 . 
 
 . , s. 3 , 
 
 , s. 4 , 
 
 , s. 5 , 
 
 , s. 7 , 
 
 , s. 9 , 
 
 — > 0. 32, s. 1 
 
 . s. 4 
 
 355 
 
 129, 440 
 
 . 472 
 
 . 458 
 
 . 278 
 
 . 277 
 
 287, 352 
 
 287, 353 
 
 . 353 
 
 . 397 
 
 . 450 
 
 . 449 
 
XXVlll 
 
 TABLE OF STATUTES. 
 
 16 & 17 Vict. 0. 96, s. 9 . . 
 
 c. 97, s. 123 . 
 
 c. 99 . . . 
 
 , s. 6 . . 
 
 , ss. 9-11 
 
 c. 107 
 
 -, s. 198 
 -, s. 209 
 -, ss. 218-223 
 -, ss. 232, 235 
 -, s. 244 . . 
 -, s 245 . . 
 -, ss. 248-251 
 -, s. 275 
 -, s. 303 
 -, s. 304 
 
 c. 118 
 c. 119 
 
 17 & 18 Vict. 0. 38 
 
 c. 102 
 
 , s. 5 
 
 -,s.2 
 -, ss. 3-1 
 -, s. 10 
 -, s. 14 
 
 c. 104, s. 206 . 
 -, s. 207 . 
 -, s. 520 . 
 
 PAGE 
 
 185 
 185 
 438 
 439 
 455 
 113 
 84 
 113 
 115 
 113 
 114 
 408 
 114 
 . 339 
 114, 331 
 . 337 
 . 306 
 . 131 
 130, 131 
 . 387 
 . 86 
 . 87 
 . 88 
 . 297 
 88, 331 
 . 184 
 184, 339 
 . 339 
 289, 341 
 . 84 
 
 18 & 19 Vict. c. 91, s. 21 
 
 c. 96, s. 38 
 
 c. 126 . 225, 462, 472 
 
 , s. 1 196, 463, 471 
 
 -, s. 2 . 
 -, ss. 3, 4 
 -, s. 8 . 
 -, s. 11 . 
 
 -, s. 12 . 
 - s. 14 . 
 
 19 Vict. c. 16 . . 
 
 , ss. 1, 3 
 
 c. 17, s. 18 . 
 
 c. 54, s. 1 . 
 
 20 & 21 Vict. c. 3 . 
 
 , s. 2 
 
 , s. 3 
 
 ; S. 5 
 
 — c. 43, SS. 1, 
 
 14 
 
 c. 83 . 
 
 c. 85, ss. 21, 25 
 
 21 & 22,Vict.c.73, ss. 9-11 . 
 c. 87 . . . 
 
 22 Vict. c. 32 .... 
 c. 33, s. 1 . . . 
 
 463 
 . 464 
 434, 464 
 . 464 
 463, 464 
 . . 398 
 . . 288 
 . . 353 
 . . 299 
 . . 343 
 76, 438, 454 
 . 436,439 
 . 340,439 
 . . 455 
 2, 4, 5, 
 
 473 
 129 
 324 
 294 
 
 454 
 319 
 
 22 & 23 Vict. c. 4 . 
 
 , ss. 3, 
 
 c. 17 . 
 
 (._ 35 g_ 24 
 
 23 & 24 Vict. c. 32, s. 2 
 c. 75, s. 13 
 
 0.66 
 
 c. 94, ss. 1 
 
 , s. 3 
 
 ,s.4 
 
 , s. 7 
 
 , s. 8 
 
 9 
 
 24 & 25 Vict. 
 
 . s, 
 
 95 
 
 s. 1 
 s. 2 
 s. 3 
 s. 4 
 s. 5 
 s. 6 
 s. 7 
 s. 8 
 s. 9 
 
 ss. 10, 11 
 s. 12 
 
 S.13. 
 
 PAGE 
 
 298 
 
 298 
 
 344 
 
 191 
 
 72 
 
 185 
 
 391 
 
 36 
 
 37 
 
 38 
 
 340 
 
 38 
 
 289 
 
 430 
 
 187 
 
 192, 227, 239 
 
 196 
 
 201 
 
 207 
 
 206, 328, 329 
 
 . 206 
 
 . 437 
 
 . 437 
 
 437,462 
 
 . 196 
 
 142, 194, 
 
 461, 462 
 
 142,194 
 
 ss.14,15 194,461 
 s. 17.142, 194, 461 
 ss. 18, 19 . 195, 
 461, 462 
 
 S.20. 
 
 S.21. 
 
 S.22. 
 
 S.23 
 
 S.24. 
 
 S.26. 
 
 SS. 27, 28 
 
 S.29. 
 
 s. 30. 
 
 S.31. 
 
 s. 32. 
 
 S.33 
 
 S.34. 
 S.35. 
 
 195, 462 
 
 461,462 
 
 195,461 
 
 . 461 
 
 195. 461 
 . 195 
 . 191 
 
 192, 197 
 95, 193 
 . 190 
 
 190, 196 
 190, 196, 
 
 461, 462 
 
 461. 462 
 461 
 
 =.36.191,461,462 
 S.37. . 461,462 
 ss. 38, 39 . 190 
 
 5.40. . 212,213 
 
 5.41. . 214,425 
 
 5.42. . . 213 
 
 5.43. . . 212 
 
TABLE OF STATUTES. 
 
 XXIX 
 
 24 & 25 Vict. c. 96, 
 
 ss. 44, 45 
 
 . 104 
 
 as. 46-48 
 
 . 105 
 
 S.50. . 
 
 . 245 
 
 S.51. . 
 
 238, 242 
 
 S.52. . 
 
 . 243 
 
 S.53. . 
 
 . 239 
 
 S.54. . 
 
 . 243 
 
 ss. 55, 56 
 
 . 244 
 
 S.57. . 
 
 244,245 
 
 S.58. . 
 
 243, 443 
 
 S.59. . 
 
 . 243 
 
 ss. 60, 61 
 
 . 245 
 
 ss. 62, 63 
 
 . 209 
 
 s.64. . 
 
 209,338 
 
 S.67. . 
 
 . 207 
 
 S.68. . 
 
 . 225 
 
 s.69. . 
 
 . 210 
 
 s. 70.210,223,338 
 
 S.71. . 
 
 224,328 
 
 s. 72.206,224,425 
 
 S.74. . 
 
 . 207 
 
 ss. 75-77 
 
 226, 297 
 
 ss. 78, 80 
 
 227, 297 
 
 ss. 81-84 
 
 228, 297 
 
 ss. 85, 86 
 
 229, 297 
 
 S.87. . 
 
 . 297 
 
 s. 88.230, 233, 426 
 
 s. 90. . 
 
 . 234 
 
 s. 91 . 
 
 37, 38, 
 
 
 216, 218 
 
 S.92. . 
 
 219, 329 
 
 S.93. . 
 
 . 219 
 
 S.94. . 
 
 219, 425 
 
 S.95. . 
 
 . 218 
 
 S.96. . 
 
 . 340 
 
 S.97. . 
 
 218, 462 
 
 S.100 . 
 
 . 433 
 
 8. 101 . 
 
 93, 441 
 
 s. 102 . 
 
 . 93 
 
 S.103 . 
 
 308, 310 
 
 s. 104 . 
 
 . 309 
 
 s. 108 . 
 
 . 471 
 
 s. 109 . 
 
 . 454 
 
 s. 110 . 
 
 . 472 
 
 8. 114 . 
 
 207, 339 
 
 s. 115 . 
 
 289, 341 
 
 8.116 . 
 
 330,411, 
 
 
 420, 427 
 
 S.117 . 
 
 280,440, 
 
 
 444 
 
 s. 118 . 
 
 . 440 
 
 S.119 . 
 
 441, 443 
 
 s. 121 . 
 
 . 398 
 
 c. 97 
 
 261, 266 
 
 24 & 25 Vict. 0. 97, 
 
 c. 98 
 
 17,18 
 
 ss. 1-4 . 
 
 PAGE 
 
 261 
 
 ss. 5-8 . 
 
 262 
 
 ss. 9-11. 
 
 266 
 
 ss. 12-15 
 
 267 
 
 ss. 16, 17 
 
 262 
 
 S.18. . 
 
 263 
 
 S.19. . 
 
 272 
 
 ss. 20, 21 
 
 271 
 
 ss. 22-24 271, 465 
 
 8.25. . 269,465 
 
 ss. 26, 27 
 
 263 
 
 S.28. . 
 
 267 
 
 S.29. . 
 
 268 
 
 SS. 30, 31 
 
 269 
 
 S.32 . 
 
 270 
 
 SS. 33-35 
 
 269 
 
 8.36. . 
 
 270 
 
 S.37 270,4 
 
 27,465 
 
 s.38. . 2 
 
 (0,465 
 
 S.39. . 
 
 272 
 
 S.40. . 
 
 270 
 
 8.41. . 2 
 
 ?1,465 
 
 S.42. . 2 
 
 33, 268 
 
 8.43. . 
 
 268 
 
 8.44. . 2( 
 
 54, 268 
 
 ss. 45-49 
 
 268 
 
 8. 50. . 
 
 104 
 
 ss.51,52 2' 
 
 72, 464 
 
 s.54. . 
 
 273 
 
 8.57. . 
 
 309 
 
 s.58. . 2f 
 
 )5, 273 
 
 s.59. . 2( 
 
 )6, 273 
 
 8.60. . 2 
 
 35,273 
 
 S.61. . 
 
 310 
 
 s.66. . 
 
 471 
 
 8.67. . 
 
 454 
 
 8.68. . 
 
 472 
 
 S.70. . 
 
 420 
 
 8.72. . 2g 
 
 9,341 
 
 s. 73. 280, 4^ 
 
 10,444 
 
 8.74. . . 
 
 440 
 
 8.75. . 4^ 
 
 1,443 
 
 8.77. . 
 
 398 
 
 . 
 
 249 
 
 S.1 . . 6 
 
 0,250 
 
 8.2 . . . 
 
 250 
 
 8.3 . . . 
 
 235 
 
 ss.4^8 . . 
 
 251 
 
 ss. 9, 10 . . 
 
 257 
 
 s. 11 . . 
 
 440 
 
 S.12 . 2£ 
 
 1,258 
 
 88.13,14,16 
 
 
 ■ ■ ■ ■ 
 
 258 
 
 s. 19 . . 
 
 259 
 
XXX 
 
 TABLE OF STATUTES. 
 
 24 & 25 Vict. c. 98. 
 
 ■ c. 99. 
 
 ■ 0. 100, 
 
 ss. 20-23 
 
 PAGE 
 
 . 251 
 
 s. 24 . 
 
 251, n. 
 
 as. 25, 26 
 
 . 251 
 
 s. 27 . 
 
 95, 251 
 
 ss. 28-31 
 
 95, 252 
 
 ss. 32, 33 
 
 . 252 
 
 s. 34 . 
 
 . 236 
 
 ss. 35-37 
 
 . 252 
 
 s. 38 . 
 
 . 259 
 
 s. 41 . 
 
 . 338 
 
 s. 44 . 
 
 . 256 
 
 s. 50 . 
 
 289,341 
 
 s. 51 . 280, 440, 
 
 
 444 
 
 s. 52 
 s. 53 
 s. 54 
 S.2 . 
 ss. 3-5 
 SS. 6-10 
 s. 11 
 s. 12 
 s. 13 
 s. 14 . 
 s. 15 . 
 ss. 16, 17 
 s. 18 . 
 s. 19 . 
 ss. 20, 21 
 s. 22 . 
 s. 23 . 
 s. 24 . 
 ss. 25-27 
 s. 28 . 
 ss. 29, 30 
 s. 31 . 
 s. 36 . 
 s. 37 
 
 64 
 
 440 
 443 
 398 
 64 
 65 
 C6 
 67 
 67, 437 
 67 
 66,68 
 67 
 65 
 64 
 
 s. 38 
 
 s. 39 
 s. 40 
 s. 42 
 s. 1 
 s.2 
 s. 4 
 s. 5 
 s. 7 
 s. 9 
 s. 10 
 s. 11 
 
 67 
 
 64 
 
 67 
 
 1,408 
 
 68 
 
 339 
 
 64 
 
 310 
 
 289, 341 
 
 330,411, 
 
 420 
 
 280, 440, 
 
 444 
 
 . 440 
 
 . 443 
 
 . 398 
 
 . 160 
 
 . 430 
 
 . 124 
 
 164,440 
 
 . 150 
 
 . 341 
 
 . 340 
 
 17,166 
 
 ss. 12-14 17,167 
 S.15 17,155,167 
 
 24 & 25 Vict. 0. 100. 
 
 , c. 134, 
 
 25 & 26 Vict. c. 18 
 
 ■■ c. 65 
 
 ^ — c. 67 
 
 s. 16 . 
 s. 17 . 
 s. 18 . 
 s. 20 . 
 ss. 21, 22 
 ss. 23-25 
 s. 26 . 
 8.27 . 
 ss. 28-30 
 s. 31 . 
 ss. 32-34 
 s. 35 . 
 s. 36 . 
 s. 37 . 
 s. 38 
 
 , 39, 40 , 
 42, 43 , 
 
 PAGE 
 
 . 104 
 
 . 184 
 78, 180 
 
 . 180 
 
 . 181 
 
 . 182 
 
 . 185 
 
 . 176 
 
 . 182 
 
 . 148 
 
 . 183 
 
 . 136 
 
 . 185 
 
 . 183 
 78, 184 
 
 s. 44 
 s. 45 
 
 s. 46 
 
 s. 47 
 
 ■0.88 
 
 122 
 178, 
 460 
 179, 364, 
 460, 471 
 179, 364, 
 460 
 179, 461 
 178, 179 
 88.48,49,52 172 
 ss. 53-55 . 175 
 8. 56 . . 176 
 8.57 . 128,338 
 8S. 58, 59 . 173 
 s. 60 . . 174 
 s. 61 , . 172 
 8. 62 . . 173 
 s. 63 . . 171 
 s. 66 . . 309 
 8. 67 . 38, 160 
 s. 68 . 289, 341 
 s. 69 . . 440 
 8. 70 . 441, 443 
 8. 71 . 280, 440, 
 444 
 s. 77 . . 398 
 8. 221 . . 440 
 .... 442 
 .... 293 
 . . . 253, 259 
 88.44,45,47 260 
 . . . 118,253 
 
 8s. 2, 3 . 
 
 s. 4 . . 
 
 8. 5 . 
 
 -, ss. 14, 18 
 
 • 0. 89, s. 166 
 
 ■ 0. 107 
 
 ■ c. 114 
 
 118 
 119 
 118 
 119 
 229 
 372 
 140 
 
TABLE OF STATUTES. 
 
 XXXI 
 
 28 Viot. c. 
 
 -, s. 6 . . 
 -, ss. 4-10 
 
 18, s. 2 . 
 — , s. 3 . 
 
 -^, ss. 4, 5 
 
 Ties 
 
 25 & 26 Vict. c. 114, s. 2 . 142, 465 
 
 26Vict. c. 29 86 
 
 , ss. 2, 4 . . . 88 
 
 , s. 5 . . .88, 331 
 
 -, s. 7 . . . .416 
 
 26 «& 27 Viot. 0. 44 . 181,212,442 
 
 c. 73, s. 14 . . 235 
 
 c. 87, s. 9 . . . 229 
 
 • 0. 103, s. 1 . 206, 471 
 
 27 & 28 Vict. 0. 47, s. 2 38, 243, 330, 
 436, 439 
 
 . 309 
 
 . 455 
 
 381, 382 
 
 . 404 
 
 . 393 
 
 . 394 
 
 . 422 
 
 255, 422 
 
 . 234 
 
 . 441 
 
 . 75 
 
 315, 441 
 
 . 459 
 
 . 251 
 
 . 258 
 
 . 398 
 
 229 
 
 63 
 
 60 
 
 264 
 
 444 
 
 445 
 
 345 
 
 345 
 
 314, 320, 414 
 
 . 319 
 
 . 398 
 
 . 421 
 
 . 380 
 
 433, 434 
 
 . 346 
 
 86,87 
 
 . 3^1 
 
 , B. 7 . 
 
 ■ , s. 8 . 
 
 28 & 29 Vict. c. 124, ss. 8, 9 
 
 c. 126, s. 19 
 
 , s. 37 
 
 -, sched. 1, 
 
 ■ c. 127 
 
 29 & soviet, c. 25, s. 15 
 
 , ss. 20, 2 
 
 C.52 
 
 c. 108, ss. 15- 
 
 c. 109 . . 
 
 , s. 10 
 
 , s. 34 
 
 17 
 
 0. 117, s. 14 
 c. 118 . 
 
 30 & 31 Vict. c. 35 
 
 ,s.2 
 
 , s. 3 
 
 -,8.4 
 
 , s. 5 
 
 , s. 6 
 
 , s. 8 
 
 , s. 9 
 
 , s: 10 
 
 ■ c. 102, s. 49 
 c. 124, s. 11 
 0. 131, s. 35 
 
 235 
 31 Vict. c. 24, s. 2 . . . ." 457 
 31 & 32 Vict. c. 45, part 3, ss. 28, 
 42, 43. 51, 52, 55 . . . . 195 
 
 c. 110, s. 20 . . 216 
 
 c. 116 . . . . 462 
 
 '■ , s. 1 . 202, 216 
 
 ■ , s. 2 . 225, 398 
 
 c. 119, s. 5 . . 229 
 
 c. 125, ss. 43-47 86, 88 
 
 32 & 33 Vict. 0. 49, s. 
 c. 62 . 
 
 s. 
 
 c. 68 
 0. 71 
 
 c. 73. 
 
 33 & 34 Vict. c. 14 
 c. 23, s, 
 
 11 
 12 
 13 
 14 
 16 
 18 
 20 
 4. 
 10 
 86 
 23 
 5. 
 1 
 
 -, s, 
 
 ■ c. 58, s. 
 
 , 3, 
 
 ■ 0. 65, s. 
 ■c. 76 . 
 • c. 77 . 
 
 2 
 3 
 4 
 5 
 
 i. 9, 18 
 31 
 3 
 4 
 6 
 3 
 
 . 259 
 . 115 
 . 115 
 . 116 
 . 117 
 84,117 
 . 117 
 
 117, 345 
 . 296 
 . 390 
 . 421 
 . 118 
 . 215 
 379 
 10, 53, 154, 
 
 349, 445 
 . 446 
 
 399, 446 
 . 446 
 
 , s. 6 
 
 s. 8, 9 
 .10 
 . 12 
 . 20 
 .23 
 
 ■0. 90 
 
 21 
 
 ss. 
 
 c. 93, s. 
 
 c. 98, s. 
 
 34 & 35 Vict. c. 31, s. 
 
 c. 32 . 
 
 c. 78, s. 
 
 c. 86 . 
 
 c. 87 . 
 
 c. 103, s, 
 
 c. 108, s, 
 
 0. 112 
 
 4-11 . 
 
 17, 18, 20 
 11. 
 18 
 2 . 
 
 10 
 
 1.30 
 7 
 
 s. 3-5 
 . 6 . 
 . 7 . 
 .8. 
 3. 10, 11 
 ,12 
 . 13 
 
 445 
 446 
 . 53 
 . 252 
 . 235 
 . 252 
 . 93 
 . 118 
 
 370, 372 
 . 379 
 . 371 
 
 371, 375 
 . 371 
 . 372 
 . 378 
 . 58 
 
 59 
 
 60 
 
 324 
 
 252, 259 
 
 . 120 
 
 . 120 
 
 . 229 
 
 . 86 
 
 . 73 
 
 . 371 
 
 . 136 
 
 . 280 
 
 280, 455 
 
 . 280 
 
 . 281 
 
 281, 443 
 
 219, 281 
 
 184, 281 
 
 . 281 
 
XXXll 
 
 TABLE OF STATUTES. 
 
 34 & 35 Vict. c. 112, s. 16 
 
 , s. 18 
 
 , s. 19 
 
 35 & 36 Vict. c. 33 
 
 ,3.20 
 
 PAGE 
 
 219, 281 
 420, 427 
 217, 281, 
 410 
 . 427 
 84, 236 
 . 252 
 , 252 
 . 287 
 89, 236 
 . 434 
 . 220 
 138 
 36&37 Vict. C.38, s. 3~. .130,137 
 
 c. 66, s. 11 . . 292 
 
 , ss. 18, 19 . 450 
 
 , ss. 29, 37 . 291 
 
 , s. 3 . 
 
 - c. 42, s. 12 
 
 - 0. 52 . . 
 
 - c. 60, s. 3 . 
 
 - c. 93, s. 30 
 , s. 38 
 
 - c. 94, s. 12 
 
 , s. 45 
 
 , s. 47 
 
 c. 71, s. 13 
 
 0.88 
 
 37 & 38 Vict. c. 36, ss. 1, 2 
 
 450 
 
 450-452 
 
 . 270 
 
 . 44 
 
 . 235 
 
 TAOS 
 
 37 & 38 Vict. c. 36, s. 3 . . . 297 
 c. 88, ss. 40, 46 . 84 
 
 38 & 39 Vict. c. 24 . . . 225, 253 
 
 27 
 
 11 
 
 0.25 
 
 -,s.4 
 -, ss. 5 
 
 .7-11 
 0.55 
 c. 63, ss. 4, 5, 25, 
 
 - c. 77, s. 8 
 
 - c. 80 . 
 
 - c. 86 . 
 , s. 3 
 
 , ss. 4, 
 
 c. 87 
 
 61,408 
 61 
 62 
 132 
 
 5, 7, 9, 
 
 , ss, 99-101 
 
 135 
 291 
 73 
 120 
 122 
 
 121 
 253 
 259 
 
 0. 88, s. 4 139, 387, 408 
 
 c. 91 . . . . 253 
 
 39 & 40 Vict. 0. 57 '. '. ". '. 289 
 
PEINCIPLES 
 
 THE CRIMINAL LAW. 
 
 BOOK I. 
 INTEODUCTOEY CHAPTEE. 
 
 CEIME. 
 
 The term " erime " admits of description rather than Ciimo. 
 definition. There are no certain and universal intrinsic 
 qualities which at once stamp an act with the character 
 of a crime. We term a flagitious act a crime rather on 
 account of its consequences than from regard to any- 
 such intrinsic characteristics. Thus, turning to one of 
 the most satisfactory explanations of the term under 
 consideration, we learn that it is " an act of disobe- 
 dience to a law forbidden under pain of punish- 
 ment" (a). 
 
 The question at once presents itself. What are the Puuishments. 
 distinguishing marks of " punishments ?" This will, 
 perhaps, be seen most clearly by a contrast. Sanctions 
 (that is, evils incurred by a person in consequence of 
 disobedience to a command, and thus enforcing that 
 command) fall under two heads : — 
 
 1. Those which consist in the wrongdoer being 
 obliged to indemnify the injured party, either in the 
 way of damages or of specific performance. 
 
 2. Some sufferings experienced by the wrongdoer. 
 
 (a) Fitz, St. 1. 
 
A CBIME. 
 
 In the first case the enforcement of the sanction is 
 in the discretion of the injured party (or his repre- 
 sentative), and its object is his advantage. 
 
 In the second case the sanction is imposed for the 
 public benefit, and is enforced or remitted at the dis- 
 cretion of the sovereign body (&) as the representative 
 of the public, such discretion being exercised according 
 to law (c). 
 
 Crimes and Here wc arrive at the true ground of distinction (or 
 
 contlis'ted^''^ rather difference, inasmuch as the two terms do not 
 exclude each other, and therefore cannot be distin- 
 guished (ti)) between Crimes and Civil Injuries or Torts. 
 The difference is not a difference between the tendencies 
 of the two classes of wrongs, but a difference between 
 the modes in which they are respectively pursued; 
 that is, whether as in the first or second of the cases 
 mentioned above (e). 
 
 That there is nothing in the nature of a crime 
 which, fer se, determines that a particular wrongful 
 act should be necessarily relegated to the category of 
 crime, two considerations will suffice to shew. First. 
 In different countries and at different eras in the 
 history of the same country the line between civU and 
 criminal is, and has been, utterly different. For ex- 
 ample, at Eome theft was regarded as a civil injury, 
 for which pecuniary redress had to be made. And we 
 have only to point back to the Anglo-Saxon system to 
 illustrate the narrowness of the domain of criminal 
 
 (6) Sometimes the exercise of this discretion is deputed to some member 
 of the sovereign body — e.g., in England, to the king or queen. 
 
 (c) Fitz. St. 4; Austin, 518. 
 
 (d) " To ask whether an act is a crime or a tort is like asking whether 
 a man is a husband or a brother." — Fitz. St. 7. 
 
 (e) Austin, 417. A good description of crimes having in view the true 
 ground of difference is given in Bishop, 1 Cr. L. § 43. " Those wrongs 
 which the government notices as injurious to the public, and punishes in 
 what is called a criminal proceeding, in its own name." 
 
CEIME. 3 
 
 law in rude societies. The second consideration is, 
 that the same wrongful act is regarded as a crime or a 
 civil injury according as it is viewed and proceedings 
 are taken with reference to the one or the other sanc- 
 tion. In the English law the best examples of this 
 are lihels and assaults. The same writings, or the 
 same actions, may be made the subject of civil or of 
 criminal proceedings. If A. write of B. that he is a 
 swindler, B. may either indict A. for the crime, or 
 bring an action against him for the civil injury (/). 
 
 It may be well to interpose an explanation of the The same act 
 courses open to the injured person when the same ttth^wn Ind 
 wrong is both a crime and a civil injury. He has not criminal pro- 
 always the power of choosing in which way he will "^^ '°^^' 
 proceed. The rule is based on the distinction of crimes 
 into felonies and misdemeanors (gi). In the case of 
 felonies the crime must be prosecuted before civil 
 redress can be sought from the wrongdoer. In mis- 
 demeanors there is no such distinction ; either pro- 
 ceeding may be taken first, or both may be pursued 
 concurrently (h). 
 
 Before leaving the subject of the difference between 
 crimes and civil injuries two other false and groundless 
 distinctions may be adverted to. Firstly. The dis- 
 tinction does not consist in this, that the mischief of 
 crimes (as a class) is more extensive than that of civil 
 injuries (as a class) ; nor, secondly, in this, that the 
 end of the sanction in the case of crimes is prevention, 
 in the case of civil injuries redress to the injured 
 party (i). 
 
 How nearly the two classes are related, even when the 
 
 (/) Austin, 417, 518. 
 (ff) V. p. 8. 
 
 (A) Addison on Torts, 31, 33. 
 (i) Austin, 417, 520. 
 
 B 2 
 
CEIME. 
 
 act cannot be regarded as common to both, an example 
 will serve to shew. A. knowingly, fraudulently, and 
 with intent to deqeive B., sells him a quantity of beer 
 short of the just measure. This was held to be only an 
 inconvenience and injury to a private person, which 
 might have been guarded against with due caution {h). 
 But if the defect in the amount had been owing to 
 a false vessel for measuring, A. would have been indict- 
 able. So was S., who delivered a quantity of coals, to 
 his knowledge weighing 14 cwt., — he falsely and fraudu- 
 lently representing that the quantity he had delivered 
 weighed 18 cwt., and thereby obtaining the price of 
 18 cwt. (I). 
 
 Proceedings, 
 civil or 
 criminal ? 
 
 It is often of the utmost importance to determine 
 whether a particular proceeding is a criminal or a civil 
 proceeding. Thus, the evidence of the defendant may 
 be required; and this is not allowed to be given in 
 criminal, though of course it is in civil trials. The 
 question arose on an information for the recovery of 
 penalties for smuggling, under a particular statute (m). 
 The true test is whether or not the infliction of punish- 
 ment follows on the result being unfavourable to the 
 defendant. If the end of the proceeding is that the 
 defendant is required to pay a sum of money, the 
 question will resolve itself into the form, whether the 
 fine is a debt or a punishment (n). 
 
 Morality and 
 Crime. 
 
 The moral nature of an act is an element of no value 
 in determining whether it is criminal or not. On the 
 one hand, an act may be grossly immoral, and yet it 
 may not bring its agent within the pale of the criminal 
 law — as in the case of adultery. "Human laws are 
 made, not to punish sin, but to prevent crime and 
 
 (K) S. V. Wheatlen, 2 Burr. 1125. 
 (I) B. V. Sherwood, 26 L. J. (M.C.) 81. 
 (m) Attorney-General v. Eadloff, 10 Exch. 84. 
 (n) Cattell r. Ireson, 27 L. J. (M.C.) 167. 
 
CBIME. 
 
 mischief" (o). On the other hand, an act perfectly 
 innocent, from a moral point of view, may render the 
 doer amenable to punishment as a criminal. To take 
 an extreme example — W. was convicted on an indict- 
 ment for a common nuisance, for erecting an embank- 
 ment which, although it was in some degree a hindrance 
 to navigation, was advantageous in a greater degree 
 to the users of the port (p). Here the motive, if not 
 praiseworthy, was at least innocent. The fact that the 
 motive of the defendant was positively pious and laud- 
 able has not prevented a conviction (q). 
 
 This forces upon our notice a division of crimes into Mala in se 
 mala in se and mala quia proMbita ; a distinction which ^gjin^ta. ^""' 
 is of little practical importance in our English system, 
 and which must necessarily vary with the standard of 
 good and bad (r). There will always be some crimes 
 which naturally take their place in the one class or the 
 other — for example, no one will hesitate to say that 
 murder is malum in se, or that the secret importation 
 of articles liable to custom is merely malum quia 
 prohibitum; but between these offences there are 
 many acts which it is difficult to assign to their proper 
 class. 
 
 Some acts have been recognized as crimes in the Crimes at 
 English Law from time immemorial, though their ™"by°tatute. 
 punishment and incidents may have been affected by 
 legislation. Thus murder and rape are crimes at 
 common law. In other cases, acts have been pro- 
 nounced crimes by particular statutes, which have also 
 provided for their punishment — e.g., offences under the 
 Bankruptcy Laws. 
 
 (o) Attorney-General v. Sillem, 2 H. & C. 526. 
 (p) R. <r. Ward, 5 L. J. (K.B.) 221. 
 (?) B. y. Skarpe, 26 L. J. (M.C.) 47. 
 (r) Austin, 590. 
 
CEIME. 
 
 Division of the In treating of the Criminal Law, or the Pleas of 
 su jeot. ^j^^ Crown (s), the subject naturally divides itself into 
 
 two portions. The first, dealing with crimes generally, 
 and the rarious individual crimes, their constituents, 
 their differences, appropriate punishments, and other 
 incidents, may be termed — The Law of Crimes. The 
 second, dealing with the machinery by means of which 
 these crimes are prevented, or, if committed, by means 
 of which they meet with their punishment, may be 
 termed — The Law of Criminal Procedure. 
 
 (s) So called because the king is supposed by the law to be the person 
 injured by every infraction of the public rights belonging to that com- 
 munity, and is, therefore, in all cases the proper prosecutor for every 
 public offence. 4 Bl. 2. 
 
( 7 ,) 
 
 CHAPTER II. 
 
 DIVISIONS OF CRIME. 
 
 Crime. — Offence. — These terms are sometimes used Explanation of 
 synonymously of the whole of illegal acts which entail l^^^'^s }^™^ 
 
 •1 i-niPi 1 • '" Criminal 
 
 punishment. Jbach of them, however, has sometimes a Law. 
 narrower signification ; and in this sense they are op- 
 posed to each other, and divide between them the whole 
 field of acts which each in its wider sense covers. The 
 latter use is that which confines the term " offence " 
 to acts which are not indictable, but which are punished 
 on summary conviction ; while " crime " is restricted 
 to those which are the subjects of indictment. 
 
 Indictable Crimes.- — All treasons, felonies, and mis- 
 demeanors, misprisions of treason and felony {t), 
 whether existing at common law or created by statute, 
 are the subjects of indictment. So also are all attempts 
 to commit any of these acts (m) ; and even an intention 
 to commit high treason is indictable. Further, if a 
 statute prohibits a matter of public grievance, or com- 
 mands a matter of public convenience (such as the 
 repairing of highways or the like), all acts or omissions 
 contrary to the prohibition or command of the statute, 
 being misdemeanors at common law, are punishable 
 by indictment, if the statute does not manifestly seem 
 to exclude this mode of proceeding {v). But it is other- 
 wise if the rights which are regulated are merely 
 private. If the statute on which the indictment is 
 
 (0 V. p. 8. 
 
 (m) v. p. 16. 
 
 (») 2 Hawk. c. 25, s. 4. 
 
DIVISIONS OF CRIME. 
 
 framed is repealed, no proceedings can be taken provided 
 at least the prisoner has not pleaded (x). 
 
 .. — In general this term signifies some 
 neglect or contempt, especially when a person, with- 
 out assenting thereto, knows of any treason or felony 
 and conceals it {y). But it is also applied to every 
 great misdemeanor which has no certain name given 
 to it in the law ; for example, the maladministration of 
 public officers. The former kind is sometimes termed 
 negative, the latter positive misprision. 
 
 The main classification of indictable crimes is three- 
 fold — Treason, Felony, Misdemeanor — though "trea- 
 son " is strictly included in the term " felony.'' 
 
 Felony. — Misdemeanor. — It will be remembered that 
 in contrasting crimes and civil injuries, we found that 
 there were no intrinsic qualities the possession of 
 which assigned an act to either class. In distinguish- 
 ing felony from misdemeanor we shall also find that 
 the difference is only one founded on the consequences 
 of each. But the latter classification is exhaustive, 
 and not a cross-division, as in the case of crimes and 
 civil injuries, inasmuch as the same act cannot be both 
 a felony and a misdemeanor. 
 
 It is a popular idea, which to a certain extent the 
 law has countenanced, that the distinction into felonies 
 and misdemeanors is one founded on the degree of 
 enormity of the crime. That this is not the case neces- 
 sarily will be seen when we consider what offences 
 belong to the one class and what to the other. No one 
 will maintain that perjury, which is a misdemeanor, is 
 of less gravity than simple larceny, which is a felony. 
 
 («) R. T. Denton, 21 L. J. (M.C.) 207. 
 (y) V. pp. 53, 94. 
 
DIVISIONS OF CEIME. 
 
 As a rule, however, the more serious crimes are 
 felonies. 
 
 What, then, is the origin and force of this distinction. Origin of 
 a distinction attended with important consequences ? " ^^^"^y- 
 To obtain an answer we must look back to the period 
 of feudal law. The term "felony " is derived from two 
 words (z), the one signifying a fief or feud, the other 
 price or value. Thus the term was applied to those 
 offences which resulted in the tenant's forfeiture of his 
 land to the lord of the fee ; though primarily it signi- 
 fied the penal consequences, i.e., the forfeiture, of these 
 offences. By another slight deflexion the term was 
 extended to offences which involved forfeiture of goods. 
 Blackstone thus defines a felony to be "an offence 
 which occasions a total forfeiture of either lands or 
 goods, or both, at the common law; and to which 
 capital or other punishment may be superadded accord- 
 ing to the degree of guilt " (a). Capital punishment, 
 associated in the popular mind with felony, was an 
 usual, though not a necessary, incident. Petit-larceny 
 was a felony, but not capitally punished; standing 
 mute at a trial was punished with death, though not a 
 felony. Though the ground of distinction into felony 
 and misdemeanor was the consequence of the crime, 
 of course originally there must have been some reason 
 for attaching the graver consequences to one act and 
 not to another. This was furnished by a consideration 
 of the gravity and commonness of the offence, a con- 
 sideration not attended to in later periods (6). 
 
 It may be noticed that where a statute declares that 
 an offender against its provisions shall be deemed to 
 have feloniously committed the act, the offence is 
 thereby made a felony (e). 
 
 (z) Fee-Ion. For some conjectural derivations, v. 4 St. Bl. 7. 
 
 (a) 4 Bl. 95. 
 
 (6) Fitz. St. 57. 
 
 (c) B. V. Johnson, 3 M. & Sel. 556. 
 
10 
 
 DIVISIONS Olf CKIME. 
 
 Abolition of 
 forl'eitui'e. 
 
 " Misdemeanor " is to be regarded as a negative 
 expression; being applied to indictable crimes not 
 falling within the class of felonies {d). In a wide and 
 general sense, the term is also used synonymously with 
 " crime." 
 
 Kecently (1870) the legislature struck at the root of 
 the distinction we have been treating of; but the 
 terms " felony " and " misdemeanor," having become 
 firmly attached to the various indictable offences, still 
 remain. It was provided that no confession, verdict, 
 inquest, conviction, or judgment of or for any treason, 
 or felony, or felo de se shall cause any attainder or 
 corruption of blood, or a,nj forfeiture or escheat (e). 
 
 lacidents of In addition to the distinction as to forfeiture, which 
 
 misdemoaDOT-s '^^ ^^'^^ j^^^ ^^^^ *'° ^® ^ thing of the past, there are 
 contrasted. other poiuts, somo nominal, others real, which distin- 
 guish felonies from misdemeanors : — 
 
 i. As to arrest. — It will suffice here to state generally 
 that an arrest is justifiable in certain cases of supposed 
 felony, where it would not be in cases of supposed mis- 
 ' demeanor (/). 
 
 ii. As to the trial. — Misdemeanors may be tried 
 upon an indictment, inquisition, or information; felonies 
 upon the first two only. 
 
 The right of peremptory challenge is confined to 
 those charged with felony. 
 
 (d) "Their general name — misdemeanors — bad behaviour^happily de- 
 scribes their general character. The principal offences included under this 
 head are libel, conspiracy, and nuisance. The connection between them 
 may not, at first sight, be apparent ; but a comparison of their definitions 
 will shew that though, in some respects, they are dissimilar, the essence 
 of all these offences is the same. . . . Each of these offences is based 
 upon the notion of a normal state of repose and general order, which it is 
 criminal to disturb either by writing, by any combination, or by any 
 wilful act or omission." — Fitz. St. 145. 
 
 ^e) 33 k 34 Vict. c. 23, s. 1. 
 
 (/) V. p. 308 ct soq. 
 
DIVISIONS OF CKIME. 
 
 The legislature requires that certain terms of penal 
 servitude should be inflicted on those convicted of 
 felony after a previous conviction for felony, or for 
 certain misdemeanors : whereas there is no such pro- 
 vision with regard to misdemeanors committed after a 
 previous conviction. 
 
 On minor points there is also a difference, e.ff., the 
 form of oath taken by the jury (<?) ; the mode of 
 swearing the jury ; again, in misdemeanors the defen- 
 dant is not given in charge to the jury (/(). 
 
 iii. As to the civil remedy. — As we have seen («'), the 
 felony raust be prosecuted before a civil action is com- 
 menced with reference to the same act ; in misde- 
 meanor there is no such necessity. 
 
 (3) V. p. 380. 
 (A) V. p. 381. 
 (0 V. p. 3. 
 
( 12 ) 
 
 CHAPTEE III. 
 
 ESSENTIALS OF A CRIME. 
 
 In order to ascertain wto are and who are not capable 
 of committing crimes, it will be necessary to examine 
 certain terms which are liable to confusion. 
 
 In the first place we must deal with those elements 
 which occur in every case of crime ; and the absence of 
 either of which excludes the act from the category of 
 crimes, viz.. Will, Criminal Intention, or Malice. It will 
 be more convenient to treat of them in this order, 
 though obviously the reverse of the actual sequence of 
 events. 
 
 To will an act is " to go through that inward state 
 which, as experience informs us, is always succeeded 
 by motion " (k) ; that is, unless the body be physically 
 incapable. And will is to be distinguished from those 
 wishes which are not carried into execution; for 
 example, excited by jealousy, I wish to kill B., but 
 fear of the law prevents me from willing that act. If 
 the act be not willed, it is said to be involwntary, and 
 of course does not render its doer amenable to the 
 criminal law. 
 
 Intention is the " fixing the mind upon the act, and 
 thinking of it as of one which will be performed when 
 the time comes " Q), and when the time comes (if it 
 ever does) the act is willed. The willing may succeed 
 
 (4) Fitz. St. 77. 
 (0 Ibid. 
 
ESSENTIALS OF A CRIME. 13 
 
 the intention instantaneously, or years may intervene 
 between the formation of the intention and the exercise 
 of the will. An example will explain the relation of 
 the two terms more clearly. A. hates B. In conse- 
 quence of this hatred A., on meeting B., shoots him 
 dead. Here A. makes up his mind to shoot B. when he 
 meets him j up to this point, as long as the two are 
 separated, A.'s intention only is formed. He meets B. 
 in the road, and carries out his design or intention by 
 pulling the trigger. Now he wills the act ; that is, he 
 wishes it in such a way as to cause the motion of his 
 arm and finger (m). 
 
 In this example a third element appears. The Motive. 
 motive of the act is the deadly hatred. Motive may be 
 defined as "that which incites and stimulates to 
 action." It may serve as a clue to the intention ; but 
 it is the intention which determines the quality, 
 criminal or innocent, of the act (w). 
 
 So much for intention generally. But to make a Malice, or 
 
 criminal '" 
 ■ tention. 
 
 person a criminal, the intention must be a state of mind "■'™'°^^ '"' 
 
 forbidden by the law. I utter a forged note, not know- 
 ing it to be such, and therefore not intending to 
 defraud. No crime is committed. But if I have such 
 intention, this criminal intention stamps the act with 
 the character of crime (o). The guilty state of mind, 
 or criminal intention, is generally known by the term 
 "Malice;" a term which is truly a legal enigma, on 
 account of' the many and conflicting senses in which it 
 is used. As synonymous with criminal intention, it is 
 thus necessary to the legal conception of crime. To 
 secure a conviction, as a general rule, malice of this 
 
 (m) "Though usually both intention and will are found in an act, 
 either or both may be absent. Both are wanting when a man in a convul- 
 sive fit striljes and kills another. Intention is absent in the case of an 
 infant."— V. Fitz. St. 78. 
 
 (n) Broom, C. L. 851. 
 
 (o) V. Fitz. St. 81. 
 
14 ESSENTIALS OF A CEIME, 
 
 kind must be directly proved. But when the law ex- 
 pressly declares an act to be criminal, the question of 
 intention or malice need not be considered j at least, 
 except by the judge in estimating the amount of 
 punishment {p). Again, in some cases, this intention 
 is presumed from a circumstance, and it lies on the 
 accused to shew that his intention was innocent, e.g., 
 in the case of possession of recently stolen goods (q). 
 
 Malice, active This malicc is found not only in cases 
 
 or passive. 
 
 I. Where the mind is actively or positively in fault, 
 as where there is a deliberate design to defraud, but 
 also 
 
 II. Where the mind is passively or negatively to blame, 
 that is, where there is culpable or criminal inattention 
 or negligence. A common example of this is man- 
 slaughter by a surgeon who has shewn gross incom- 
 petence in the treatment of the deceased. But here 
 the criminality consists in the wilfully incurring the 
 risk of causing loss or suffering to others (r). So that, 
 in fact, the malice is only traced one stage further 
 back. An extreme case of this negative malice is where 
 there is merely the absence of a thought which ought 
 to have been there, as in the non-repair of roads 
 through forgetfulness. 
 
 Malice, express It is usual to lay dowu that malice is either 
 
 or implied. 
 
 1. Express, or in fact, as where a person with a 
 deliberate mind and formed design kills another. 
 
 2. Implied, or in law, as where one wilfully poisons 
 another, though no particular enmity can be proved ; 
 
 (p) Broom, C. L, 852. 
 
 Iq) V. p. 220. 
 
 (r) Broom, C. L. 854. 
 
ESSENTIALS OE A CRIME. 15 
 
 or where one gives a perfect stranger a blow likely to 
 produce death. Here there is a wilful doing of a 
 wrongful act without lawful excuse ; and the intention 
 is an inference of law resulting from the doing the 
 act (s). The law infers that every man must contem- 
 plate the necessary consequences of his own act (t). 
 
 Here, and everywhere in dealing with malice, there 
 is great danger of deflexion into malice with its moral 
 signification, as denoting ill-will or malevolence. In 
 other words, of confounding motive with intention. 
 Malice, in the sense of malevolence, is not essential to 
 a crime ; malice, in its legal signification of criminal 
 intention, is (u). 
 
 As we have seen, it is the character of the intention intention, 
 that determines the character of the act ; though other crimTnaiity 
 considerations, for example, motives, are taken into 
 account in order to discover the intention. The same 
 act may be wholly innocent, a civil injury, or a crime, 
 according to the intention. For example, A. takes a 
 horse from the owner's stable without his consent. If 
 he intend to fraudulently deprive the owner of the 
 property and appropriate the horse to himself, he is 
 guilty of the crime of larceny. If he intend to use it 
 for a time and then return it, it is a trespass or civil 
 injury only. If he take it in due course as distress for 
 rent, he is justified and not exposed to any ill conse- 
 quences (x). 
 
 But a naked intention is not criminally punishable, 
 except, as it is said, in treason. There must be some 
 
 (s) 4 Bl. 199, V. p. 155. 
 
 (<) S. V. Dixon, 3 M. & Sel. 15. 
 
 («) " In the use of the word ' malice,' in all cases there is undoubtedly 
 always a lurking reference to some sort of moral depravity, though per- 
 haps only of a temporary sort. But the intangible nature of such an element 
 compels the legislature and the judge to select certain determinate signs 
 as essential characteristics of this depravity." — Amos, Jurisprudence, 305; 
 
 («) Broom, C. L. 851. 
 
16 ESSENTIALS OF A CRIME. 
 
 carrying out, or attempt to carry out, that intention 
 into action. In other words, the intention is to be 
 inferred from some overt act, or in the case of a crime 
 of omission, from the absence of some overt act. Thus, 
 although A. has resolutely made up his mind to shoot 
 B. when next he meets him, and confesses this resolu- 
 tion, the law is powerless to deal with him; but 
 directly he does anything in pursuance of that design, 
 he is within the grasp of the law. The reason for this 
 rule is obvious, namely, the difficulty, or rather impos- 
 sibility of proving a mere intention. 
 
 If there be present a criminal intention, the prisoner 
 is not exculpated because the results of the steps he 
 takes to carry out that intention are other than those 
 he anticipated or intended. For example, if A., intend- 
 ing to shoot B., shoots C, mistaking C. for B-. To such 
 a length is this doctrine extended, that if A. shoots at 
 B.'s poultry and by accident kills a man, if his intention 
 be to steal the poultry, he will be guilty of murder. 
 The act, viz., the shooting, is willed, and the intention 
 is criminal (and felonious) ; therefore the essentials of 
 a crime are furnished, and the result determines what 
 the crime is. This is not the only respect in which the 
 gravity and nature of the crime are determined by cir- 
 cumstances over which he has not control. Thus, if B. 
 receives a blow from A., and, through the unskilful 
 treatment of the wound by the surgeon, dies, A. will be 
 guilty of murder or manslaughter. The intention is, 
 then, not the sole gauge of criminal liability. 
 
 Attempts. Though a mere intention is not punishable, an 
 
 attempt to commit a crime is itself a crime, and there- 
 fore the subject of punishment. That which the law 
 wishes to discover is the intention, and an attempt 
 equally with a completion of the offence will be evi- 
 dence of this. What is sufficient to constitute an 
 attempt ? An attempt may be said to be the doing of 
 any of the acts which must be done in succession before 
 
ESSENTIALS OF A CRIME. 17 
 
 the desired object can be accomplished; or rather, with 
 the limitation that the attempt must be an act directly 
 approximating to the commission of the offence. Thus 
 procuring a die for coining was held an act in further- 
 ance of the criminal purpose sufficiently proximate to 
 the offence (y) ; but not so the buying a box of matches 
 for setting a stack of corn on fire (z). But the act 
 must have been such that, if no interruption had taken 
 place, the principal offence would have been success- 
 fully committed ; so that if a person puts his hand into 
 a pocket with intent to steal what is there, and the 
 pocket is empty, he cannot be convicted of an attempt 
 to steal (a). 
 
 Every attempt to commit a crime is itself an indict- 
 able misdemeanor at common law. In some cases, it 
 is specially provided that it shall amount to a felony, 
 e.ff., attempt to murder (b). 
 
 If on the trial of a person charged with felony or Verdict of 
 misdemeanor, the jury do not think that the offence fndS*ent for 
 was completed, but, nevertheless, are of the opinion that the complete 
 an attempt was made, they may express this in their ™™°' 
 verdict. The prisoner is then dealt with as if he had 
 been convicted on an indictment for the attempt. But 
 of course he is not liable to be prosecuted afterwards 
 for the attempt (c). 
 
 As a rule, attempts are punished less severely than Punishment of 
 the corresponding consummate crimes, though the mis- ^"^""P*^' 
 chief may be as great in the one case as the other. It 
 is with a view to cases in which the complete offence is 
 
 ()/) B. V. Boberts, 25 L. J. (M.C.) 17. 
 (2) B. V. Taylor, 1 F. & F. 511. 
 (a) B. V. Collins, 33 L. J. (]«.C.) 177. 
 (6) 24 & 25 Vict. c. 100, ss. 11-15. 
 (0) 14 & 15 Vict. c. 100, s. 9. 
 
18 ESSENTIALS OF A OEIME. 
 
 more mischievous that the distinction is made, so as to 
 give the person a locus penitentise before the consum- 
 mation. It may be noticed that this consummation is 
 prevented sometimes by the penitence of the party, 
 sometimes by extrinsic causes (d). 
 
 (d) Austin, 1098. 
 
( 19 ) 
 
 CHAPTEE IV. 
 
 PEESONS CAPABLE OF COMMITTING CEIMES. 
 
 Eyeey man mtist be presumed to be responsible for his Exemptions 
 acts until the contrary is clearly shewn. If an act ^™™ *'"™'."''' 
 
 y •' , responsibility. 
 
 ordinarily falling within the scope of the criminal law 
 be committed, the law presumes that it was done wil- 
 fully and with malicious intent. Therefore it lies on 
 the accused to rebut this presumption. 
 
 There are certain exemptions from criminal respon- 
 sibility, or rather, under certain circumstances, acts 
 which would otherwise be criminal, on some special 
 ground are not deemed so. The foregoing examination 
 of the essential elements of crime enables us to deter- 
 mine what is the nature of these exemptions ; inasmuch 
 as they are founded, as a rule, on the absence of one of 
 those essentials. In one or two instances, however, 
 other considerations, either of policy or well-advised 
 lenity, are entertained, e.g., in the case of crimes com- 
 mitted by ambassadors. 
 
 The several instances of irresponsibility may be classification 
 reduced to the following classes :— of exemptions. 
 
 1. Absence of criminal intention or malice, includ- 
 ing:— 
 
 Insanity : Infancy : Ignorance (mistake). 
 
 2. Absence of will, i.e., the act is purely involun- 
 tary :— 
 
 Misfortune^ &c. : Physical compulsion. 
 
 2 
 
20 PEESONS CAPABLE OF COMMITTING CBIMES. 
 
 3. Instant and well-grounded fear, stronger than the 
 fear naturally inspired by the law (e) : — 
 
 Fear of excessive unlawful harm. Coercion of 
 married women. 
 
 In each of these cases (!•— 3) the fear of punishment 
 is not calculated to act upon the person so as to deter 
 him, or to deter others by making him an example ; 
 therefore the punishment would be inoperative and 
 worse than useless. 
 
 4. When an act, under ordinary circumstances 
 criminal, is denuded of that character, inasmuch as it 
 is directly authorized by the law : — 
 
 In pursuance of legal duty; e.g , the sheriff hanging 
 a criminal. 
 
 In pursuance of legal right ; e.g., slaying in self- 
 defence. 
 
 Here, as in the first class, there is no criminal 
 intention. 
 
 Each of these grounds of exemption must now be 
 dealt with. 
 
 lo. Insanity. Insanity. — With regard to no subject in criminal law 
 is there so much obscurity and uncertainty as on the 
 question of the responsibility or irresponsibility of a 
 prisoner when the state of his mind at the time of the 
 commission of the act is the point at issue. It has 
 often been asserted, and not without a considerable 
 degree of truth, that the acquittal or conviction of 
 a prisoner, when insanity is alleged, is more or less 
 a matter of chance. The subject is one on which 
 the views taken by medical men differ most widely 
 from those taken by lawyers; and as the former 
 
 (e) Austin, 1092, &c. 
 
PEKSONS CAPABLE OF COMMITTING CKIMES. 21 
 
 are generally the most important witnesses in cases 
 of alleged insanity, the confusion is by no means 
 diminished (/). 
 
 Two classes of mental alienation are usually recog- idiocy and 
 
 nized :— insanity. 
 
 1. Dementia natv/ralis, or a nativitate — in other words, 
 idiocy, or continuous weakness of mind from birth, 
 without lucid intervals : a person deaf and dumb from 
 birth is by presumption of law an idiot, but it may be 
 shewn that he has the use of his understanding. 
 
 2. Dementia aceidentalis, or adventitia — usually 
 termed insanity, in the narrower signification. The 
 mind is not naturally wanting or weak, but is deranged 
 from some cause or other. It is either partial (insanity 
 upon one or more subjects, the party being sane upon 
 all others) or total. It is also either permanent (usually 
 termed madness) or temporary (the object of it being 
 afflicted with his disorder at certain periods only, 
 with lucid intervals), which is usually denominated 
 lunacy {g). 
 
 Three stages in the history of the law of insanity History of 
 may be discerned. The first, outrageous as it was, may f'^* '^^^ "^ 
 be illustrated by the following dictum of an English 
 judge : — A man who is to be exempted from punish- 
 ment " must be a man that is totally deprived of his 
 understanding and memory, and doth not know what 
 he is doing, no more than an infant, than a brute, or a 
 wild beast Qi)." The second stage regarded as the test 
 
 (/) " There is great difference of opinion as to tlie cause of the uncer- 
 tainty ; the lawyers asserting that it is owing to the fanciful theories of 
 medical men, who never fail to find insanity when they earnestly look for 
 it, the latter protesting that it is owing to the unjust and absurd criterion 
 of responsibility which is sanctioned by the law." — Maudsley's Kesponsi- 
 bility in Mental Disease (1874), 101. 
 
 ((/) V. Bac. Abr. Idiots. ■ As to dementia affectata, or drunkenness, 
 V. p. 2.5. 
 
 (/•) S. V. Ai-nold, 16 St. Tr. 764. 
 
22 
 
 PERSONS CAPABLE OF COMMITTING CRIMES. 
 
 M'JSTaughten's 
 Case. 
 
 Partial 
 insanity. 
 
 of responsibility the power of distinguishing right from 
 wrong in the abstract (i). The third stage, unhappily, 
 is that in which we live ; though common sense may 
 soon inaugurate a fourth. The existing state of 
 doctrines dates from the trial of M'Naughten in the 
 year 1843 (k). 
 
 Certain questions were propounded by the House of 
 Lords to the judges. The substance of their answers 
 was to the following effect : — " To establish a defence 
 on the ground of insanity, it must be clearly proved 
 that, at the time of the committing of the act, the party 
 accused was labouring 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, if he did know it, 
 that he did not know he was doing what was wrong " (I). 
 Thus the question of knowledge of right or wrong, 
 instead of being put generally and indefinitely, is put 
 in reference to the partieular act at the particular time 
 of committing it. 
 
 As to partial insanity, that is, when a person is sane 
 on all matters except one or more, the judges declared 
 that " he must be considered in the same situation as 
 to responsibility as if the facts with respect to which 
 the delusion exists were real. For example, if, under 
 the influence of his delusion, he supposes another man 
 to be in the act of attempting to take away his life, 
 and he kills that man, as he supposes, in self-defence, 
 he would be exempt from punishment. If his delusion 
 was that the deceased had inflicted a serious injury to 
 his character and fortune, and he killed him in revenge 
 for such supposed injury, he would be liable to punish- 
 
 (j) R. T. Bellingham, Coll. 636. 
 
 Ik) 10 CI. & Fin. 200 ; 1 C. & K. 130. 
 
 (l) Cf. Alison's Principles of Criminal Law of Scotland, pp. 645 654. 
 " The insanity must have, been of such a kind as entirely to deprive the 
 prisoner of the use of reason, as applied to the act in qmstion, and of the 
 knowledge that he was doing wrong in committing it." 
 
PERSONS CAPABLE OP COMMITTING CEIMES. 23 
 
 merit " (m). After laying down, as above, what may- 
 be called the " particular right and wrong theory," they 
 abandon it here, and also in another answer, whpre, still 
 dealing with partial delusions, they express their 
 opinion that "notwithstanding the party accused did 
 the act complained of with a view, under the influence 
 of insane delusion, of redressing or revenging some 
 supposed grievance or injury, or of producing some 
 public benefit, he is nevertheless punishable if he knew 
 at the time of committing such crime that he was 
 acting contrary to the law of the land " (n). 
 
 It has been held that an apparent absence of motive Absence of 
 for the deed is not any ground for inferring an irresist- ™°'''7!'.J'°^ 
 
 . 1 11 1 1 irresistible 
 
 ible and insane impulse ; and that though there be an impulses, 
 irresistible impulse, if there be no real delusion as to 
 any fact, it affords no defence (o). Why a man should 
 be punished for what he cannot resist, it is, perhaps, 
 hard to comprehend. 
 
 As to medical evidence on the question pf insanity — Evidence of 
 a witness of medical skill may be asked whether, as- ™^'^"=''i ^''" 
 suming certain facts, proved by other witnesses, to be 
 true, they, in his opinion, indicate insanity. But he 
 cannot be asked, although present in Court during the 
 whole trial, whether from the evidence he has heard 
 he is of opinion that the prisoner, at the time he com- 
 mitted the alleged act, was of unsound mind ; for such 
 a question, unlike the previous one, involves the deter- 
 
 (m) " Here is an unhesitating assumption that a man, having an insane 
 delusion, has the power to think and act in regard to it reasonably ; that, 
 at the time of the oiience, he ought to have and exercise the knowledge 
 and self-control which a sane man would have and exercise, were the facts 
 with respect to which the delusion exists real ; that he is, in fact, bound 
 to be reasonable in his unreason, sane in his insanity." — Maudsley, 97. 
 
 (re) For strictures on these principles of " exquisite inhumanity,", see 
 remarks of Judge Ladd in State v. Jones, 50 New Hampshire Reports, 
 369. 
 
 (o) S. V. Haynes, 1 F. & F. 666. B. v. Barton, 3 Cox, 275. 
 
 nesses. 
 
24 
 
 Trial, when 
 insanity is 
 pleaded. 
 
 PEESONS CAPABLE OF COMMITIING CRIMES. 
 
 mination of the truth of the evidence, which it is for 
 the jury to determine (jp). 
 
 The law presumes sanity ; and, therefore, the burden 
 of the proof of insanity lies on the defence. Even 
 in the case of an acknowledged lunatic, the offence 
 is presumed to have been committed in a lucid in- 
 terval, unless the contrary be shewn. It is for the 
 petty jury to decide whether a case of insanity, recog- 
 nized as such by the law, has been made out. The 
 grand jury have no right to ignore a bill on the ground 
 of insanity. The jury are obliged to attend to the 
 directions of the judge as to what is called the law on 
 the subject, but which is rather an erroneous opinion 
 as to a matter of fact. There seems to be no sound 
 reason for withdrawing any part of the question of 
 insanity from the jury — a thing which is done when 
 the artificial test of responsibility is propounded to 
 them {q). When, on the part of the defence, the in- 
 sanity of the prisoner at the time of the commission of 
 the offence is given in evidence, and the jury acquit 
 him, they must find specially whether he was insane at 
 the time of the commission of the offence, and declare 
 whether they acquit him on that ground. If they so 
 acquit him on the ground of insanity, the court will 
 order him to be kept in proper custody till the Queen's 
 pleasure be known ; and the Queen may order the con- 
 finement of such person during her pleasure (»). So if 
 a person indicted is insane, and upon arraignment is 
 found insane by a jury impanelled to discover his state 
 of mind, so that he cannot be tried; or if on his 
 trial, or when brought up to be discharged for want 
 
 {p) R. V. Frances, 4 Cox, .')7. See also M'Naughten's Case. 
 
 ((jt) " If the tests of insanity are matters of law, the practice of allowing 
 experts to testify what they are should be discontinued ; if they are matters 
 of fact, the judge should no longer testify without being sworn as a witness 
 and showing himself qualified to testify as an expert." — Judge Doe in 
 State V. Pike, 49 New Hamp. Kep. 399. 
 
 (r) 39 & 40 Geo. 3, c. 94, b. 1 ; 3 & 4 Vict. c. 54,. ». 3. 
 
PEKSONS CAPABLE OF COMMITTING CRIMES. 25 
 
 of prosecution, he appears to the jury to be insane, 
 the court may record such finding, and order him 
 to be kept in custody till the Queen's pleasure be 
 known (s). 
 
 In accordance with the dictates of humanity no 
 criminal proceedings can be taken against a man while 
 he is non compos mentis. Thus, if a man commit 
 murder and become insane before arraignment, he 
 cannot be arraigned; if after trial before judgment, 
 judgment cannot be pronounced; if after judgment 
 before execution, execution will be stayed (t). 
 
 Drunkenness. — Drunkenness is sometimes termed Drunkenness 
 d&mentia affectata — acquired madness. A state of '"'' ''"' '''"="^^- 
 voluntary intoxication is not any excuse for crime (m). 
 It is true that the sanctions of the law cannot be sup- 
 posed to exert an equal influence on the mind and con- 
 duct of a person in this state ; but the initiation of the 
 crime may be said to date back to the time when the 
 offender took steps to deprive himself of his reason. It 
 is evident that if drunkenness were allowed to excuse, 
 the gravest crimes might be committed with impunity 
 by those who either counterfeited the state or actually 
 assumed it. 
 
 It would be incorrect to say that the consideration When to be 
 of drunkenness is never entertained in the criminal ™"'"'i«'^'«'*- 
 law. Though it is no excuse for crime, yet it is some- 
 times an index of the quality of an act. Thus, it may 
 be taken into account by the jury when considering 
 the motive or intent of a person acting under its influ- 
 ence ; for example, on the question whether a person 
 who struck a blow was excited by passion, or acted 
 from ill-will; whether expressions used by the pri- 
 
 (s) 39 & 40 Geo. 3, u. 94, s. 2. 
 
 (0 1 Hale, P. C. 34. 
 
 («) V. Pearson's Case, 2 lew. 0. C. 144. 
 
26 PEHSONS CAPABLE OF COMMITTING CRIMES. 
 
 soner were uttered with a deliberate purpose, or were 
 merely the idle expressions of a drunken man (aj). So 
 M. could not have intended suicide if she were so 
 drunk that she did not know what she was doing («/). 
 
 Of course if the drunkenness be involuntary, as for 
 example, if it be by the contrivance of the prisoner's 
 enemies, he will not be accountable for his action while 
 under that influence. Also, if drunkenness has become 
 habitual and confirmed, so as to produce the disease of 
 insanity, this insanity, equally with other kinds of 
 mental disease, may be pleaded in defence. 
 
 16. Infancy, as Infancy. — Infancy can be used in defence only as 
 CTime™^* *^°' evidence of the absence of criminal intention, though 
 there are certain presumptions of the law on the sub- 
 ject, some of which may, some of which may not, be 
 rebutted. 
 
 The age of discretion, and therefore of responsibility, 
 varies according to the nature of the crime. What the 
 law technically terms "infancy" does not terminate 
 till the age of twenty-one is reached ; but this is not 
 the " infancy " which is the criterion in the criminal 
 law. Two other ages have been fixed as points with 
 reference to which the criminality of an act is to be 
 considered. 
 
 Fust period. Under the age of seven, an infant cannot be con- 
 victed of a felony ; for until he reaches that age he is 
 presumed to be doli incapax; and this presumption 
 cannot be rebutted by the clearest evidence of a mis- 
 chievous discretion (z). 
 
 Seeond period. Between se?;ew z.ndi fourteen, he is still, frima facie, 
 
 (k) R. r. Thomas, 7 C. & P. 817. 
 
 (I/) R. V. Moore, 3 C. & K. 319. 
 
 (e) A prcesumptio juris et de jure, v. p. 418. 
 
PEESONS CAPABLE OF COMMITTING CRIMES. 27 
 
 deemed by law to be doli incajoax ; but this presump- 
 tion may be rebutted by clear and strong evidence of 
 such mischievous discretion (a), the principle of the 
 law being malitia supplet setatem. Thus, a boy of the 
 age of ten years was hanged for killing his companion ; 
 he having manifested a consciousness of guilt, and a 
 discretion to discern between good and evil, by hiding 
 the body (h). There is one exception to this rule, 
 grounded on presumed physical reasons. A boy under 
 the age of fourteen cannot be convicted of rape or 
 similar offences, even though he has arrived at the 
 full state of puberty. He may, however, be convicted 
 as principal in the second degree. 
 
 Between fourteen and twenty-one, an infant is pre- Third period 
 sumed to be doli oaf ax, and accordingly, as a rule, may 
 be convicted of any crime, felony or misdemeanor. 
 But this rule is subject to exceptions, notably in the 
 case of offences consisting of mere non-feazance ; as, for 
 example, negligently permitting felons to escape, not 
 repairing highways, &c. It is given as a reason for 
 the exemption in cases of the latter character that, not 
 having the command of his fortune till twenty-one, the 
 person wants the capacity to do those things which the 
 law requires (e). 
 
 Though, as we have seen, infants who have arrived Juvenile 
 at years of discretion are not to be allowed to commit 
 crimes with impunity, we shall find that in certain 
 cases the law deals with juvenile offenders in an ex- 
 ceptional way, in order, if possible, to prevent their 
 becoming confirmed criminals {d). 
 
 Ignorance (including mistake). — Two kinds of igno- lo. ignorance, 
 ranee must be distinguished — Ignorance of Law — fo/crime?^^ 
 
 (a) A prasumptio juris, v. p. 418. 
 
 (6) 1 Hale, P. C. 26, 27 ; v. Tories Case, Fost. 70. 
 
 (c) 4 Bl. 22. 
 
 Id) V. p. 465. 
 
28 PEBSONS CAPABLE OF COMMITTING CEIMES. 
 
 Ignorance of Ignorance of Fact, It is a leading principle of Eng- 
 ^^' lish law that ignorance of law in itself will never 
 
 excuse. Though it is implied in some of the excuses 
 of which we have treated, e.g., infancy, the ignorance 
 of the law is not the ground of exemption (e). It is no 
 defence for a foreigner charged with a crime committed 
 in England that he did not know he was doing wrong, 
 the act not being an offence in his own country (/). 
 
 Ignorance of Ignorance or mistake of fact will or will not excuse, 
 '"°'" according as the original intention was or was not 
 
 lawful. For example, if a man, intending to kill a 
 burglar in his house, kill his servant, he will not be 
 guilty of an offence. But if intending to do grievous 
 bodily harm to A., he, in the dark, kill B., he will be 
 guilty of murder. 
 
 The cases we have been noticing are those in which 
 the exemption from the normal liability is grounded on 
 the absence of criminal intention or malice. Those in 
 which the ground of exemption is absence of will, or, in 
 other words, involuntary acts, require very little con- 
 sideration. 
 
 2a. Accident, Aecident (including misfortune, mishap, &c.). — To 
 exxuse for ^® Valid as an excuse, the accident must have happened 
 crime. in the performance of a lawful act with due caution. 
 
 For example, A., properly pursuing his work as a slater, 
 lets fall a slate on B.'s head ; B. dies in consequence of 
 the injury. Here B. will not be liable ; but it would 
 have been otherwise had he at the time been engaged 
 in some criminal act ; or if he had not exercised proper 
 skill or care. We shall find cases of this description 
 most frequently in drawing the line between culpable 
 and excusable homicide. 
 
 (e) V. Austin, 496. 
 
 (/) B. V. Bsop, 7 C. & P. 4.50. 
 
PERSONS CAPABLE OF COMMITTING CEIMES. " 29 
 
 .Physical Compulsion — as if A, kills B. with C.'s 26. Physical 
 
 hand. ~ compulsion. 
 
 The third division comprises cases where the act is 
 done under a fear stronger than that which the law 
 inspires. 
 
 Fear of Excessive and Unlawful Harm, — ^When a 3a. Duress per 
 person is driven to commit an offence by such threats ™"'''- 
 and menaces of personal violence from others as induce 
 a well-grounded apprehension of present death or 
 grievous bodily harm, in some cases he is excused. 
 The danger must threaten his person ; it will not be 
 sufficient if it only endangers his property. And this 
 plea of duress per minas will not be of avail in every 
 crime. Thus, though a man be violently assaulted, 
 and has no other possible means of escaping death but 
 by killing an innocent person, if he commit the act he 
 will be guilty of murder ; for he ought rather to. die 
 himself than escape by the murder of an innocent man. 
 But in such case he may kill his assailant (g). Ques- 
 tions of this sort are especially likely to occur when 
 persons are compelled to join in a rebellion or riot (h). 
 
 State of Married Women. — In cases of felony, if a 36. Married 
 married woman commits the crime in the presence of ^"J"™' "'''° 
 
 ^ . not respon- 
 
 her husband, the law presumes that she acts under his sibie. 
 coercion, and therefore excuses her from punishment. 
 But this exemption is not allowed in all felonies, though 
 it seems unsettled where the line is drawn. It appears 
 that the wife is liable in treason, murder, manslaughter, 
 and robbery («'). In no case is she excused if her hus- 
 band be not present, not even if the act be done by his 
 order (/r). The presumption of law may be rebutted 
 
 (g) 1 Hale, P. C. 51. 
 
 (A) S. T. M'Growther, Fost. 13 ; 9 St. Tr. 566. 
 » (0 B. T. Manning, 2 C. & K. 903 ; S. v. Cruse, 8 C. & P. 541 ; 1 Hale, 
 P. C. 45-48; 1 Hawk. u. i. s. 11 ; 1 Russ. 33; Stai-kie on Evidence, tit. 
 Husband and Wife. 
 
 Qk) B. T. Morris, R. & R. 270. 
 
30 PEESONS CAPABLE OF COMMITTING CRIMES. 
 
 by evidence. Thus, if it can be shewn that she acted 
 voluntarily, at least if she took a principal part in the 
 commission of the crime, she will be convicted, although 
 her husband were present (I). 
 
 In cases of misdemeanor, the prevailing opinion 
 seems to have been that the wife is responsible for her 
 acts, although her husband be present at the commis- 
 sion. However, in recent cases, this has been doubted, 
 and the rule prevailing in felony applied (m). At any 
 rate, the exemption does not extend to those offences 
 relating to domestic matters and the government of 
 the house, in which the wife may be supposed to have 
 a principal share, as for keeping a disorderly or gaming- 
 house. 
 
 It requires the co-operation of two, at least, to con- 
 stitute a conspiracy. Of this crime, therefore, a hus- 
 band and wife cannot by themselves be convicted, 
 inasmuch as in the eye of the law they are regarded 
 as one person. So a wife cannot be convicted of steal- 
 ing her husband's goods ; nor of harbouring him when 
 he has committed a crime. 
 
 No other This relation of wife to the husband is the only one 
 
 which the law recognizes as a shield from criminal 
 punishment. The other private relations, parent and 
 child, master and servant, will not excuse nor extenu- 
 ate the commission of any crime ; either child or ser- 
 vant being liable notwithstanding the command or 
 coercion of the parent or master. 
 
 Certain exceptional cases, where the ordinary rules 
 as to capability of committing crime do not entirely 
 prevail, require a brief notice. 
 
 (0 S. V. Torpey, 12 Cox, 45. 
 
 (m) B. V. Price, 8 C. & P. 19 ; S. v. Torpey, supra. 
 
 relation an 
 excuse. 
 
PBBSONS CAPABLE OF COMMITTING OEIMES. 31 
 
 The Sovereign. — The sovereign can do no wrong : The sovereign 
 therefore he is not amenable to the ordinary criminal ^""^ "'""''■ 
 courts of his kingdom. Blackstone forbids us even to 
 imagine such delinquency on the part of the soTereign. 
 " He is not under the coercive power of the law ; which 
 will not suppose him capable of committing a folly, 
 much less a crime. We are, therefore, out of reve- 
 rence and decency, to forbear any idle inquiries of 
 what would be the consequence if the king were to act 
 thus and thus ; since the law deems so highly of his 
 wisdom and virtue, as not even to presume it possible 
 for him to do anything inconsistent with his station 
 and dignity ; and therefore has made no provision to 
 remedy such a grievance " (n). Inasmuch as it is pre- 
 sumed that he can do no wrong, although he com- 
 mands an unlawful act to be done, e.gi., an unlawful 
 arrest, the instrument is not indemnified, but is 
 punishable. 
 
 Corporations. — Even corporations aggregate, such as Corporations 
 railway companies, may be indicted by their corporate ^""^ "'™^' 
 names for breaches of duty; whether such breaches 
 consist of wrongful acts, e.g., obstructing highways ; 
 or wrongful omissions, e.g., neglecting to repair 
 bridges (o). A corporation may also be indicted by 
 its corporate name and fined for an assault committed 
 or a libel published by its order (p). 
 
 Aliens. — Foreigners who commit crimes in England Aliens and 
 are punishable exactly as if they were natural-born "'^^^■ 
 subjects. It is no defence on behalf of a foreigner 
 that he did not know he was doing wrong, the act not 
 being an offence in his own country. Though this is 
 no defence, it may mitigate the punishment (q). 
 
 (rt) 4 Bl. 33. 
 
 (p) E. V. Birmingham and Gloucester Railway Co., 9 C. & P. 469 ; 
 2 Q. B. 47. 
 
 (p) Eastern Counties Co. v. Broom, 6 Exch. 314. 
 (7) B. V. Esop, 7 C. & P. 456. 
 
32 PERSONS CAPABLE OF COMMITTING CRIMES. 
 
 Ambassadors Ambassadors. — Different views, materially conflicting 
 and crime. ^.^.j^ ^^^j^ ^^-^g^,^ j^^^^ ^^^^^ j^^j^ ^^ ^^ ^j^g Criminal 
 
 liability of ambassadors and tbeir suites. Some writers 
 maintain that for no offence, whether it be against the 
 life, person, or property of an individual, is an ambas- 
 sador amenable to the criminal law of the country to 
 which he is sent (r). Others assert that though he is 
 not punishable for crimes made such by the laws of the 
 particular country ; he is so for any great crimes which 
 must be such in any system. Or, as it is- sometimes 
 expressed, he is punishable for mala in se, but not for 
 acts which are merely mala qma prohibita. Thus, an 
 ambassador might be convicted for murder or rape, but 
 not for smuggling. The more probable and reasonable 
 course seems to be to request the recall of the offender 
 by his own state, with or without an expression of 
 opinion that the offender should be punished in his 
 own country. If this be refused, the ambassador might 
 be dismissed, and pressure brought to bear on the 
 other state to induce the latter to put him on his trial. 
 There is one class of offences which stand on a 
 different footing, namely, offences affecting the exist- 
 ence and safety of the state. For a direct attempt 
 against the life of -the sovereign, it is said that the 
 offender would be directly punishable by the state (s). 
 But, at any rate, in this and other offences against 
 the government, the state might demand the punish- 
 ment of the offender by the foreign state ; and if this 
 demand were not complied with might treat him as a 
 public enemy, and demand satisfaction from that foreign 
 state. The matter would then pass from the province 
 of law to that of politics. 
 
 (r) Phillimore's International Law, vol. ii. c. vii. 
 (s) 1 Hale, P. C. 96-99 ; Fost. 187, 188. 
 
( 33 ) 
 
 CHAPTEE V. 
 
 PRINCIPALS AND ACCESSOEIES. 
 
 Those who are implicated in the commission of crimes Principals and 
 
 aocessori 
 felonies. 
 
 are either Principals or Accessories. This distinction *<='=«s'''"«^ '° 
 
 is based on the consideration whether the party was 
 present or absent at the commission. It is recognized 
 in felonies alone. 
 
 Principals {i.e., those present) are either 
 
 Principals in the first degree, or Principals in the 
 second degree. 
 
 Accessories are either 
 
 Accessories before the fact, or Accessories after the 
 fact. 
 
 Of these in their order : — 
 
 Principal in the first degree. — He who is the actor or what con- 
 actual perpetrator of the deed. It is not necessary ^j''^"'?^ tife"°' 
 that he should be actually present when the offence is first degree ; 
 consummated ; thus, one who lays poison or a trap for 
 another is a principal in the first degree. Nor need 
 the deed be done by the principal's own hands ; for it 
 will suffice if it is done through an innocent agent, as, 
 for instance, if one incites a child or a madman to 
 murder. 
 
 Principal in the second degree. — One who is present, in the second 
 
 n degree. 
 
34 PRINCIPALS AND ACCESSOKIBS. 
 
 aiding and abetting at tlie commission of the deed (t). 
 This presence need not he actual ; it may he construc- 
 tive. That is, it will suffice if the party has the inten- 
 tion of giving assistance, and is sufficiently near to 
 give the assistance ; as when one is watching outside, 
 while others are committing a 'felony inside, the house. 
 There must be both a participation in the act and a 
 community of purpose (which must be an unlawful 
 one) at the time of the commission of the crime. So 
 that, as to the first point, mere presence or mere neg- 
 lect to endeavour to prevent a felony will not make a 
 man a principal ; as to the second, acts done by one of 
 the party, but not in pursuance of the arrangement, 
 will not render the others liable. 
 
 The distinction between principals of the first and 
 of the second degree is not a practically material one, 
 inasmuch as the punishment of offenders of either class 
 is generally the same. 
 
 Accessories are those who are not (a) the chief actors 
 in the ofi'ence, nor (b) present at its performance, but 
 are someway concerned therein, either before or after 
 the fact committed (m). 
 
 What con- 
 stitutes an 
 accessory 
 before the 
 fact. 
 
 Accessory before the fact. — One who, being absent at 
 the time when the felony is committed, yet procures, 
 counsels, commands, or abets another to commit a 
 felony (x). This may be done not only by direct com- 
 mand or counsel, but also by expressing assent or 
 approbation of the felonious design of another. But 
 the bare concealment of a felony about to be com- 
 mitted does not make an accessory. It is not necessary 
 
 (f) Principals in the second degree are frequently termed aiders and 
 abettors; sometimes also accomplices. The latter term, however, may 
 include all participes criminis. 
 
 (m) 4 Bl. 35. 
 
 (ic) 1 Hale, P. C. 615. 
 
PBINCIPALS AND ACCESSOEIES. 35 
 
 that there should be any direct commtmication between 
 the accused and the principal ; as if A", requests B. to 
 procure the services of C. in order to murder D. 
 
 The accessory will be answerable for all that ensues what such 
 upon the execution of the unlawful act commanded, at answerabie^for. 
 least for all probable consequences ; as, for instance, if 
 A. commands B. to beat C, and he beats him so that he 
 die, A. is accessory to the murder. But if the prin- 
 cipal intentionally commits a crime essentially diffe- 
 rent from that commanded, the person commanding 
 will not be answerable as accessory for what he did 
 not command. Thus, if A. commands B. to break into 
 C.'s house, and B. sets fire to the house, A. cannot be 
 convicted of the arson. But a mere difference in the 
 mode of effecting the deed, or in some other collateral 
 matter, will not divest the commander of the character 
 of accessory if the felony is the same in substance. 
 Thus, if A. commands B. to kill C. by poison, and he 
 kills him with a sword, A.'s command suflSces to make 
 him an accessory. 
 
 With regard to manslaughter — As a rule the offence Accessories 
 is sudden and unpremeditated, and this view of the fa^t 'in man- 
 nature of the crime having been taken, it has been slaughter. 
 said that there can be no accessory before the fact in 
 manslaughter. But in many cases there is deliberation, 
 though it is not accompanied by an intention to take 
 away life. It is easy to present a case in which there 
 may be an accessory before the fact to manslaughter. 
 A. counsels B. to mischievously give C. a dose of medi- 
 cine merely to make him sick, and C. dies in conse- 
 quence ; A. is guilty as an accessory before the fact to 
 the manslaughter (y). 
 
 As to the trial of those who command, counsel, or Trial of acces- 
 procure the commission of a felony. — Until a recent the'fect! "^^ 
 
 ((/) S. V. Gaylor, 7 Cox, 253. 
 
 D 2 
 
36 PBINCIPALS AND ACCESSORIES. 
 
 date it was the rule that such a person could not be 
 tried without his own consent, except at the same time 
 with the principal, or after the principal had been tried 
 and found guilty. He was merely an accessory, and 
 therefore he could not be tried before the fact of the 
 crime was established. Now two courses' are open to 
 the prosecution; either (a) to proceed, as formerly, 
 against the person who counsels, &c., as an accessory 
 before the fact with the principal felon, or after his 
 conviction ; or (b) to indict the counsellor for a sub- 
 stantive felony (for to that his offence is declared by 
 the statute to amount), and this may be done whether 
 the principal has or has not been convicted, and al- 
 though he is not amenable to justice. The punishment 
 in either case is the same. If one of these two modes 
 has been adopted, of course the offender cannot be 
 afterwards prosecuted in the other (z). It is also pro- 
 vided that an accessory before the fact may be indicted, 
 tried, convicted, and punished in all respects as if he 
 were a principal felon (a). To convict of the sub- 
 stantive felony under this- Act, it is still necessary to 
 prove that the principal deed has actually been com- 
 mitted. Soliciting and inciting to the commission, if 
 the deed is not committed, is only a misdemeanor. 
 
 What con- Accessory after the fact. — One who, knowing a felony 
 
 stitutcs an ^0 havo been committed by another, receives, relieves, 
 thrfact^ * ^' comforts, or assists the felon (6). What is required to 
 make a person an accessory after the fact ? (a) There 
 must have been some felony committed and completed ; 
 (b) the party charged must have had notice, direct or 
 implied, at the time he assists, &c., the felon, that he 
 had committed a felony ; (c) he must have done some act 
 to assist the felon personally. It will suffice if there 
 has been any assistance given in order to hinder the 
 felon's apprehension, trial, or punishment ; for example, 
 
 (z) 24 & 25 Vict. ^. 94. ». 2. 
 
 (a) Ibid. s. 1. 
 
 (6) 1 Hale, P. C. 618. 
 
PEINCIPALS AND . ACCESSORIES. 37 
 
 concealing him in the house, supplying him with horse 
 or money to facilitate his escape. But merely suffering 
 the principal to escape will not make the party an 
 accessory after the fact (e). 
 
 Eeceiving stolen goods, knowing them to have been Receivers, 
 stolen, is generally treated as a separate offence ; the ^""^ *™'*- 
 receiver being convicted of a felony, misdemeanor, or 
 summary offence, according as the stealing of the pro- 
 perty is a felony, misdemeanor, or offence punishable 
 on summary conviction (c?). If, however, the stealing, 
 obtaining, &c., is a felony, the receiver may be indicted 
 either as an accessory after the fact, or for a substan- 
 tive felony (e). 
 
 We have noticed (/) that, as a rule, the wife is pro- Wife not an 
 tected from criminal liability for acts committed in the thrfact^^"" 
 presence of her husband. Much more, then, can she 
 claim this immunity when the offence with which she 
 is charged is that of receiving and assisting her hus- 
 band. There is no exemption in respect of any other 
 relation. Even the husband may be convicted for 
 assisting his wife. 
 
 An accessory after the fact to a felony may be tried Accessory after 
 in the same manner as an accessory before the fact ; tried!"'' "^ 
 that is, either as an accessory with the principal, or 
 after his conviction, or as for a substantive felony, 
 independently of the principal ■(^). He is, in general, 
 punishable with imprisonment for any term not ex- 
 ceeding two years (with or without hard labour), and 
 may also be required to find security for keeping the 
 peace, or, in default, to suffer additional imprisonment 
 
 (c) 1 Hale, P. C. 618, &c. ; S. v. Chappie, 9 C. & P. 355. 
 
 (d) V. p. 218. 
 
 («) 24 & 25 Vict. c. 96, s. 91. 
 
 (/) y- p. 29- 
 
 (g) 24 & 25 Vict. o. 94, s. 3. 
 
38 PBINCIPALS AMD ACCESSOKIES. 
 
 for a period not exceeding one year (h). But an acces- 
 sory after the fact to murder may receive sentence of 
 penal servitude for life, or for any less term to five 
 years, or imprisonment not exceeding two years (i). A 
 receiver of stolen goods is liable to a maximum punish- 
 ment of penal servitude for fourteen years (J). 
 
 It has been observed that the distinction of prin- 
 cipals and accessories is found only in the case of 
 felonies. 
 
 In treason, all As to treason — Both every kind of incitement which 
 are puncipa s. -^^ ^ felony would make a man an accessory before the 
 fact, and every kind of assistance which would make 
 him an accessory after the fact, in treason will make 
 the offender a principal traitor. This rule is said to 
 exist propter odium delicti. 
 
 In misde- As to misdemeanors — Those who aid or counsel the 
 
 commission of the crime are dealt with as principals (k); 
 those who merely assist after the misdemeanor has 
 been committed are not punishable, unless indeed the 
 act amount to the misdemeanor of rescue, obstructing 
 the officer, or the like (l). 
 
 Recapitulation. The following Outline of the present state of the 
 law on the subject of degrees of guilt may serve to 
 place the matter in a- clearer light : — 
 
 There are no accessories in treason or misdemeanors, 
 only in felonies. 
 
 Principals, whether of the first or second degree, 
 are virtually dealt with in the same way. 
 
 (A) 24 & 25 Vict. c. 94, s. 4. 
 
 (!) 24 & 25 Vict. c. 100, s. 67 ; 27 & 28 Vict. c. 47, s. 2. 
 
 0) 24 & 25 Vict. c. 96, s. 91. 
 
 14 24 & 25 Vict. c. 94, s. 8. 
 
 (0 B. V. Greenwood, 21 L. J. (M. C.) 127. 
 
 meanors, no 
 accessories. 
 
PRINCIPALS AND ACCESSORIES. 39 
 
 Accessories, whether before or after the fact, may be 
 treated as such, or as charged with a substantiye felony; 
 but if once tried in either of these capacities, the other 
 may not be afterwards resorted to. 
 
 Accessories before the fact receive the same punish- 
 ment as principals ; accessories after the fact'generally 
 imprisonment not exceeding two years. 
 
 In the following imaginary case examples of each of 
 the four kinds of participation in a crime will be found. 
 
 A. incites B. and C. to murder a person. B. enters 
 the house and cuts the man's throat, while C. waits 
 outside to give warning in case anyone should approach. 
 
 B. and C. flee to D., who, knowing that the murder has 
 been completed, lends horses to facilitate their escape. 
 Here B. is principal in the first degree, 0. in the second 
 degree, A. is accessory before the fact, D. after the 
 fact. 
 
( 40 ) 
 
 BOOK II. 
 
 Plan of the Cleakly it wiU be advisable to adopt some logical plan 
 ^''°^' in treating of the various offences which come under 
 
 the cognizance of tribunals of criminal jurisdiction. 
 Though, of course, crimes which primarily affect the 
 state or the public also affect the individuals who con- 
 stitute that state or public ; and crimes which in their 
 immediate effect wrong individuals indirectly are pro- 
 ductive of public evil, yet the division of crimes into 
 Offences of a PuUio Nature and Offences of a Private 
 Nature or against Individuals, may be resorted to with- 
 out fear of confusion. There are other possible modes 
 of arrangement ; for example, according to the different 
 tribunals before which, or the different processes by 
 which, the crimes are prosecuted (as in the French 
 Penal Code), according to the punishments with which 
 the crimes are visited, &c. 
 
 Taking as the main division that indicated above, 
 the general order will be determined, as far as possible, 
 by the wideness of the province of the various crimes, 
 thus commencing with offences against the law of 
 nations. For the present no notice other than that 
 which is merely incidental will be taken of offences 
 which are merely punishable on summary conviction. 
 A special chapter will be devoted to this subject. 
 
( 41 ) 
 
 PART I. 
 
 OFFENCES OF A PUBLIC NATURE. 
 
 CHAPTEE I. 
 
 OFFENCES AGAINST THE LAW OF NATIONS. 
 
 Cektain offences are regarded as yiolating 'those un- what offences 
 written laws which are admitted by nations in general, are punishable 
 
 ,... 1/. 1? under the law 
 
 and which it is their duty to have enforced. It must of nations. 
 not be assumed that any state is at liberty to take 
 upon itself the punishment of an offence against the 
 law of nations, if such offence is committed within the 
 territories of a foreign jurisdiction. The most that it 
 can do in such case is to demand that justice be done 
 by the foreign state ; and if such state implicates itself 
 in the offence by neglecting to proceed against the 
 offender, then to put on pressure to enforce its require- 
 ments. But the case is otherwise if the offence is 
 committed in parts which are considered extraterritorial, 
 such as the high seas. In these all nations equally 
 have an interest, and will proceed against individuals 
 who are there guilty of offences against the law of 
 nations. 
 
 PIBACY. 
 
 The term includes both the common law offence, and 
 also certain offences which have been provided against 
 by particular statutes. 
 
 Piracy at Common Law (a). — The offence consists in 
 
 (a) Y. Phillimore, vol. i. c. xx. 
 
42 
 
 OFFENCES AGAINST THE LAW OF NATIONS. 
 
 Piracy at Committing those acts of robbery and depredation upon 
 common law— ^j^g j^-gj^ ggg^g^ which, if Committed upon land, would 
 what It IS. ^^^^ amounted to felony there (b). Each state is en- 
 titled to visit the crime with the penalties which its 
 own laws may determine (e). In England, formerly the 
 Where tried, proper courts for the trial of piracy were the Admiralty 
 Courts; but later, the trial was by commissioners 
 nominated by the Lord Chancellor, in whose number 
 were always found some common law judges (d). Now, 
 the judges sitting at the Central Criminal Court 
 and at the assizes are empowered to try cases of 
 piracy (e). 
 
 Essentials of 
 the crime. 
 
 The robbery must be proved as in ordinary cases of 
 that crime committed on land. The taking must be 
 without authority from any prince or state, for a nation 
 cannot be deemed guilty of piracy. If the subjects of 
 the same state commit robbery upon each other it is 
 piracy. If the injur er and the injured be of different 
 states the nature of the act will depend on the relation 
 of those states. If in amity it is piracy ; if at enmity 
 it is not, for it is a general rule that enemies can never 
 commit piracy on each other, their depredations being 
 deemed mere acts of hostility (/). 
 
 The gist of the offence is the place where it is com- 
 
 (b) 1 Russ. 144. V. Trial of Joseph Dawson and others, 13 Howell's 
 State Trials (1696), 456. 
 
 (c) T. Manning's Law of Nations, by Amos, 121. The crime has been 
 thus defined by text writers on international law : " The offence of depre- 
 dating on the seas without being authorized by any sovereign state, or with 
 commissions from different sovereigns at war with each other " (Lawrence's 
 Wheaton's Elements of International Law, 1863, p. 246). The definition is 
 framed to exclude depredations by lawfully authorized privateers, &c. 
 
 (d) 28 Hen. 8, c. 15. 
 
 (e) 4 & 5 Wm. 4, o. 36, s. 22 ; 7 & 8 Vict. c. 2, s. 1. 
 
 (/) V. In re Tivnan, 5 B. & S. 645 ; 2 Sir L. Jenk. 790 ; 1 Sir L. Jenk. 
 xciv. 
 
 It should be remembered that the Declaration of Paris (1856) contained 
 a provision that privateering should be abolished, binding on the coun- 
 tries parties to that declaration — Russia, Turkey, England, France, Italy, 
 Austria, and Prussia. 
 
OFFENCES AGAINST THE LAW OF NATIONS. 43 
 
 mittedj viz., the high seas, and within the jurisdiction 
 of the Admiralty (gi). 
 
 Piracy hy Statute. — By particular statutes certain Acts made 
 acts are made piracy. Such are the following : — statute''^ 
 
 For any natural born subject to commit an act of 
 hostility upon the high seas against another of Her 
 Majesty's subjects under colour of a commission from 
 a foreign power (A), or, in time of war, to assist an 
 enemy on the sea {i). 
 
 For any commander, master of a ship, or any seaman 
 or marine, to run away with the ship or cargo, or to 
 yield them up Toluntarily to any pirate ; or to consult 
 or endeavour to corrupt any such person to the com- 
 mission of such acts ; or to bring any seducing message 
 from any pirate, enemy or rebel ; or to put force upon 
 the commander so that he cannot fight ; or to make, or 
 endeavour to make, a revolt in the ship (A). 
 
 For any person to have dealings with, or render any 
 assistance to, a pirate (I). 
 
 For any person to board a merchant ship and throw 
 overboard or destroy any of the ship's goods (m). 
 
 The punishment for piracy was formerly death. Punishment 
 Now the offender is liable to penal servitude to the "^ P'™*!?- 
 extent of life, or to imprisonment not exceeding three 
 years. But piracy accompanied with an assault with 
 intent to murder, or with wounding or endangering 
 the life of any person on board of, or belonging to, the 
 vessel, is still punishable with death {n). 
 
 (g) As to the jurisdiction of the Admiralty, v. Archbold's Crim. Cases, 
 452. 
 
 (A) 11 & 12 Wm. 3, 0. 7, o. 8, made perpetual by 6 Geo. 1, c. 19. 
 
 (0 18 Geo. 2, c. 30. 
 
 Ik) 11 & 12 Wm. 3, 0. 7, s. 9. 
 
 (0 8 Geo. 1, c. 24, s. 1, perpetual by 2 Geo. 2, u. 28. 
 
 (m)Ibid. 
 
 (n) 7 Wm. 4 & 1 Vict. c. 88, ss. 2, 3. 
 
44 OFFENCES AGAINST THE LAW OF NATIONS. 
 
 OFFENCES AS TO SLAVES. 
 
 Slave trade. This class of offences is connected with the last, 
 inasmuch as the first and chief crime which we shall 
 notice is declared to be piracy, felony, and robbery— 
 viz., for any British subject, or person within British 
 territory, to conyey away, or assist in conveying away, 
 any person on the high seas as slaves, or ship them 
 for such purpose (o). The punishment formerly was 
 death, but now it is penal servitude to the extent of 
 life, or imprisonment not exceeding three years (jp). 
 
 Dealing in slaves and certain other offences are made 
 felonies. And it is a misdemeanor for a seaman to 
 serve on board a ship engaged in the slave trade {q). 
 
 A recent statute consolidates the law on the subject 
 of trading in slaves ; but it preserves the provisions 
 noticed above (r). 
 
 It will not be necessary to discuss any of the more 
 obscure offences against the law of nations (s). 
 
 (o) 5 Geo. 4, c. 113, s. 9. 
 ip) 7 Wm. 4 & 1 Vict. c. 91, s. 1. 
 (?) 5 Geo. 4, 0. 113, ss. 10, 11. 
 
 (_f) 36 & 37 Vict. c. 88. v. R. v. Zuluda, 1 C. & K. 215. 
 (s) As to the Violation of Safe Conducts and Passports, v. 4 St. Bl. 217. 
 Violation of the Rights of Ambassadors, 4 St. Bl. 219 ; 1 Russ. 1024. 
 
( 45 ) 
 
 CHAPTEE II. 
 
 OFFENCES AGAINST THE GOVEENMENT AND 
 SOVEREIGN. 
 
 We now have to deal with offences committed by- 
 members of the community in violation of their duties 
 as subjects ; these offences for the most part also in- 
 cidentally causing injury to individuals. The full 
 treatment which the gravity of this class of crimes 
 would demand is happily in many cases rendered un- 
 necessary by the rarity of their occurrence. This is 
 especially true of the crime of treason. 
 
 TEEASON (t). 
 
 The ordinary popular conception of treason, or, what Moral view 
 is the same thing, the offence of a traitor, is something °^ 'i'^*^''"- 
 of this sort, " armed resistance, justified on principle, 
 to the established law of the land " (u). This is the 
 most favourable view of the offence, the notion of 
 "principle" obscuring its gravity. But the true 
 conception of the crime includes acts which will be 
 admitted on all hands to be highly morally heinous, 
 far removed from justifiable and conscientious efforts 
 for revolution. 
 
 (i) Treason against the government was termed " high " treason to dis- 
 tinguish it from "petit " treason, which consisted in the murder of a supe- 
 rior by an inferior in natural, civil, or spiritual relation j " and therefore 
 for a wife to kill her lord or husband, a servant his lord or master, and an 
 ecclesiastic his lord or ordinary ; these, being breaches of the lower alle- 
 giance of private and domestic faith, are denominated peat treason" 
 (4 Bl. 75). But every offence which would previously have amounted to 
 petit treason is now regarded simply as murder (9 Geo. 4, v;. 31, s. 2), 
 therefore there is no longer any reason for distinguishing the graver offence 
 by the epithet " high." 
 
 («) Fitz. St. 36. 
 
46 
 
 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 
 
 Classification 
 of treasonable 
 acts. 
 
 History of 
 the law of 
 treason. 
 
 The crime comprises the three following classes of 
 acts (x) : — 
 
 " 1. Execution or contrivance of acts of violence 
 against the person of the sovereign. 
 
 2. Acts of treachery against* the state in favour of a 
 foreign enemy. 
 
 3. Acts of violence against the internal government of 
 the country." 
 
 In addition to these branches, the law includes a few 
 acts which are of the rarest occurrence, and at the pre- 
 sent day hardly demand any notice. 
 
 In order to ascertain what constitutes treason, it will 
 be necessary to glance at the early history of the crime. 
 For a long period there was great vagueness and un- 
 certainty as to what acts were treasonable, the conse- 
 quence being that any deed which appeared to infringe 
 the royal rights or to interfere with the royal autho- 
 rity was construed into treason, though it lacked the 
 essentials of that crime. Thus we are told (y) that un- 
 lawfully taking the royal venison, fish, or goods, had 
 the effect of making the taker a traitor. To remedy 
 this evil, and to provide certainty in a matter of so great 
 moment, an Act was passed in the reign of Edward III. (z). 
 It will be well to give the actual words of the statute, 
 and then to consider individually the offences with which 
 it deals. 
 
 25 Edw. 3. Treason is committed " when a man doth compass or 
 
 imagine the death of our lord the king, or of our lady 
 
 (ic) Fitz. St. 113. 
 
 ()/) Mirror, c. i. s. 4. 
 
 (z) 25 Edw. 3, St. 5, c. 2. " This statute is memorable, not only on 
 account of its vast direct importance at many periods of our history but 
 also because it is almost the only instance which the statute book affords 
 of a statutory definition of a crime, laid down in such a manner as to 
 
 supersede the whole common law or unwritten doctrine on the subject " 
 
 Fitz. St, 36. 
 
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN, 47 
 
 his queen, or of their eldest son and heir ; or if a man 
 do violate the king's companion, or the king's eldest 
 daughter unmarried, or the wife of the king's eldest son 
 and heir ; or if a man do levy war against our lord the 
 king in his realm, or be adherent to the king's enemies 
 in his realm, giving them aid or comfort in our realm 
 or elsewhere, and thereof be probably (or proveably, 
 ' provdblement ') attainted of open deed by people of 
 their condition." So much for the political or quasi- 
 political offences provided against; the statute pro- 
 ceeds to define certain other acts of treason : " And if 
 a man counterfeit the king's great or privy seal, or his 
 money ; and if a man bring false money into this 
 realm, counterfeit to the money of England, as the 
 money called Lushburg, or other like to the said money 
 of England, knowing the money to be false, to mer- 
 chandize or make payment, in deceit of our said lord 
 the king and his people ; and if a man slea the chan- 
 cellor, treasurer, or the king's justices of the one bench, 
 or the other justices in eyre, or justices of assize, and 
 all other justices assigned to hear and determine being 
 in their places, doing their offices." It is also provided 
 that the judges shall not give judgment in any case 
 which is supposed to be treason till it has been deter- 
 mined by the king and parliament whether it ought to 
 be treason or felony. 
 
 As he glances through the acts here enumerated, the change in the 
 reader will not fail to notice that treason was regarded §'?' °^ *•>' 
 
 11* crime. 
 
 as an offence rather against the person of the king 
 than against the state. But in later times, with an 
 altered state of circumstances, when the person of the 
 king comparatively had been lost sight of in the 
 consideration of the interests of the public, though 
 the letter of the old law was preserved, by liberal 
 construction it had been adapted to the new state of 
 affairs. For example, levying war against the king was 
 construed to include almost any act which was calcu- 
 lated to tend towards the subverting of the constitution. 
 
48 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 
 
 25 Edw. 3. (a.) Compassing or imagining the death of the Idng, 
 
 queen, or eldest son and heir. — Here the " king " is to be 
 understood to mean the king de facto, though he be not 
 the king dejure. On the other hand, the person right- 
 fully entitled to the crown, if not in possession, is not 
 within the statute. The " queen " referred to is the 
 queen consort, the queen regnant being included in the 
 term " king." But against the husband of the queen 
 regnant treason cannot be committed. 
 
 It is the designing that constitutes the offence. But 
 this design must be evidenced by some overt act, so 
 that if there be wanting either the design, as in the 
 case of killing the king by accident, or the overt act, 
 as when the design has been formed, but laid aside 
 before being put into execution, there is no treason. 
 
 Overt act. "What will constituto an overt act ? Anything wil- 
 
 fully done or attempted by which the sovereign's life 
 may be endangered ; for example, conspirators meeting 
 to consult on the means of killing the sovereign {a), or 
 of usurping the powers of government (&) ; writings, if 
 published, importing a compassing of the sovereign's 
 death, and even words advising what would be an overt 
 act will suffice as evidence of the design ; but not so 
 loose words which have no reference to any designed 
 act (c). 
 
 25 Edw. 3. (b.) Violating the Icing's wife, the king's eldest daughter 
 
 wnmarried, or the wife of the king's eldest son and heir. 
 — By " violating " of course carnal knowledge is to be 
 understood. The act is not divested of its treasonable 
 character by the fact that the woman consents. In 
 such a case both parties are guilty of treason. It has 
 been said that the reason for making the violation of 
 
 (n) R. V. Vane, Kel. 15. 
 
 (6) B. V. Hardy, 1 East, P. C. 60. 
 
 (c) y. R. V. Gordon, Doug. 593. 
 
OFFENCES A&AINST THE GOTEKNMENT AND SOVEREiaN. 49 
 
 these particular persons treason, was to guard the blood 
 royal from any suspicion of bastardy, whereby the suc- 
 cession to the crown might be rendered dubious (d). 
 But obviously this explanation is not supported by all 
 the instances chosen. 
 
 (c.) Levying! War against the Sovereign. — To constitute 25 Edw. 3. 
 a levying there must be an insurrection, there must be ^^e*s\'^ievyi'ng 
 force accompanying that insurrection, and it must be war. 
 for an object of a general nature (e). But there need 
 not be actual fighting : nor is the number of persons 
 taking part in the movement material. 
 
 The levying is either direct or eonstr'uetive. It is Levying, direct 
 
 or coi 
 tive. 
 
 direct " when the war is levied directly against the °'' <='>°'t'""'^- 
 
 Queen or her forces, with intent to do some injury to 
 her person, to imprison her, or the like " (/) ; for ex- 
 ample, a rebellion to depose her, delivering up the 
 sovereign's castle to the enemy. Constructive treason 
 is of a very different character, the end of the move- 
 ment being rather the purification of the government 
 than its overthrow. It is committed for the purpose 
 of effecting innovations of a public and general nature 
 by an armed force. Thus, it is treason to attempt by 
 force to alter the religion of the state, or to obtain the 
 repeal of its laws. So it is treason to throw down all 
 enclosures, open all prisons ; but not if the attempt be 
 to break down a particular enclosure, or deliver a par- 
 ticular person from prison, because in these latter cases 
 the design is particular and not general (g). 
 
 (d.) Adhering to the Sovereign's enemies. — As in the 25 Edw. 
 three former cases, this offence must be evidenced by 
 some overt act, for example, to raise troops for the 
 enemy, or to send them money, arms, or intelligence. 
 
 (d) 3 Inst. 9. 
 
 (<,') £. V. Frost, 9 C. & P. 129. 
 
 (/) 1 Hale, P. C. 131, 132. 
 
 (^) iJ. V. Oammaree, 8 St. Tr. 218. 
 
60 OFFENCES AGAINST THE GOVERNMENT AND SOVEEEIGN. 
 
 By the " sovereign's enemies " are meant the subjects 
 of foreign powers with which he is at war. It appears, 
 therefore, that a Btitish subject, though in open re- 
 bellion, can never be deemed an enemy of the sovereign, 
 so as to make assistance rendered to him treason within 
 this branch of the statute (h). 
 
 25 Edw. 3. (e.) Slaying the] GhaneeUor, &e. — It will be observed 
 
 that the statute applies only to the actual killing, not 
 a mere attempt: to those judges only when actually 
 acting in that capacity, and not at other times, and not 
 to barons of the exchequer. 
 
 Acts no longer Counterfeiting the great or privy seal is no longer 
 treason. treason, but simple felony (i). It will be treated of 
 
 under the title " Forgery " {j). So, also, coining 
 
 offences are not now treason {It). 
 
 Thus was the common law of treason declared by 
 the statute of Edward III. This statute, with certain 
 qualifications, is still in force ; in certain cases new 
 statutes specially declaring that their provisions shall 
 not affect anything contained in the statute (Z). 
 
 Subsequent Subsequently, from time to time, parliament made 
 
 number of° ^^^ <^*^®^ offences treason — notably several in the reign of 
 treasonable Henry YIII., in the matter of religion. It also took 
 upon itself the authority to declare certain acts, after 
 they had been committed, to be treason (thus tres- 
 passing into the province of the judge (m)); as, for 
 example, stealing cattle by "Welshmen. AH these new 
 treasons, however, were abrogated in the reign of 
 Edward YI._ and Mary. Then, again, the statute of 
 Edward Ill.'was restored to its place as the standard of 
 
 (h) 1 Hale, P.O. 159; 3 Inst. 11. 
 
 (i) 24 & 25 Vict. .;. 98, s. 1. 
 
 ij) T. p. 250. 
 
 (A) 24 & 25 Vict. c. 99, passim, v. p. 63. 
 
 (0 v. 11 & 12 Vict. c. 12, s. 6. 
 
 (m) Fitz. St. 36. 
 
OFFENCES AGAINST THE GOVERNMENT AND SOVEEEIGN. 51 
 
 treason ; but additions to the number of treasonable 
 offences have since been made by the legislature. The 
 following still remain : — 
 
 i. Endeavouring (to be evidenced by some overt act) 
 to prevent the person entitled under the Act of Settle- 
 ment from succeeding to the crown («). 
 
 ii. Maliciously, advisedly, and directly, by writing 
 or printing, maintaining that any other person has any 
 right or title to the crown, otherwise than according to 
 the Act of Settlement, or that the sovereign with the 
 authority of parliament may not make laws and statutes 
 to bind the Crown and descent thereof (o). 
 
 iii. Compassing, imagining, inventing, devising, or 
 intending death or destruction, or any harm tending to 
 death or destruction, maim or wounding, imprisonment, 
 or restraint of the person of the sovereign (p). 
 
 There are some points in connection with the pro- Procedure m 
 cedure in prosecutions for treason, which may be noticed fo™ tTeason'^ 
 here more conveniently than in the second part. 
 
 In the first place, no prosecution for treason can Limitation as 
 take place after three years from the commission of *" *""^' 
 the offence, if it be committed within the realm, unless 
 the treason consist of a designed assassination of the 
 sovereign (q). 
 
 The prisoner indicted for treason (or misprision of Copy of indi.ct- 
 treason) is entitled to have delivered to him, ten days ™°° ' ''' 
 ^ before the trial, a copy of the indictment, and a list of 
 the witnesses to be called, and of the petty jurors, to 
 
 (n) 1 Anne, st. 2, u. 17, ». 3, 
 
 (o) 6 Anne, c. 7. 
 
 (p) 36 Geo. 3, c. 7, s. 1, confirmed by 57 Geo. 3, v. 6, ». 1. The former 
 statute also denominated certain other acts treason ; but all these oifences, 
 with the exception of those against the person of the sovereign noticed 
 abore, were converted into felonies by 11 & 12 Vict. u. 12, s. 1. v. Treason- 
 Felonv, p. .'i4. 
 
 (q) 7 & 8 Wm. 3, c. 3. 
 
 E 2 
 
52 
 
 OFFENCES AaAINST THE GOVERNMENT AND SOTEKEIGN. 
 
 Overt act. 
 
 Prisoner's" 
 defence. 
 
 Punishment for 
 treason. 
 
 enable him the better to make his defence (r). But 
 the provision does not apply to cases of treason in 
 compassing and imagining the death of the sovereign 
 (or misprision of such treason) where the overt act is an 
 act against the life or person of the sovereign. In such 
 cases the prisoner is indicted, arraigned, and tried in 
 the same manner and upon like evidence as if he stood 
 charged with murder, though, if he is found guilty, the 
 consequences are those of treagon (s). 
 
 One overt act is sufficient to prove the treason, but 
 any number may be mentioned in the indictment. To 
 this overt act, or else to it and another of the same 
 treason, there must be two witnesses, unless the accused 
 confesses willingly (t). 
 
 The prisoner may make his defence by counsel, not 
 more than two, to be named by him, and assigned by 
 the court or judge. He has the exceptional privilege 
 of addressing the jury, notwithstanding that his counsel 
 have delivered their speeches (m). ' 
 
 Formerly the punishment for treason was of a most 
 barbarous character. Males were drawn on a hurdle to 
 the place of execution, and hanged, and cut down while 
 alive ; afterwards they were disembowelled, the head 
 was severed from the body, the body quartered, and 
 the quarters placed at the disposal of the sovereign. 
 By a wholesome statute, this proceeding was deprived 
 of its more outrageous features, it being provided that 
 beheading might be substituted by the sovereign, or 
 the capital sentence might be altogether remitted (x). 
 By the same Act the punishment of females, formerly 
 burning alive, was changed to hanging. Now, by the 
 
 (r) 7 Anne, c. 21, s. 11 ; 6 Geo. 4, c. 50, s. 62. 
 (s) 39 & 40 Geo. 3, c. 93 : 5 & 6 Vict. c. 51, b. 1. 
 
 (t) 7 & 8 Wm. 3, c. 3, ss. 2, 4 ; except in cases tried, as above, as for 
 murder. 
 
 (m) S. v. Collins, 5 C. & P. 305. 
 (a;) 54 Geo. 3, o. 146. 
 
OFFENCES AGAINST THE GOVEBNMENT AND SOVEREIGN. 53 
 
 Felony Act, 1870 (y), the only part of the sentence , 
 which is retained in any case is the hanging. 
 
 Certain additional consequences of conviction and 
 attainder (z), viz., forfeiture of lands and goods, and 
 corruption of blood, were abolished by the statute just 
 mentioned (a), but certain incapacities were at the 
 same time attached to convictions for treason or 
 felony (b). 
 
 MISPRISION OF TREASON. 
 
 Misprision of treason consists in the bare knowledge Concealment of 
 and concealment of treason, any degree of assent '''**^™- 
 making the party a principal. At common law this 
 mere concealment, being construed as aiding and 
 abetting, was regarded as treason, inasmuch as, it will 
 be remembered, there is no distinction into principals 
 and accessories in treason (c). It was specially enacted 
 that a bare concealment of treason should be held a 
 misprision only (d). The only punishment now is im- 
 prisonment. The party knowing of any treason must, 
 as soon as possible, reveal it to some judge of assize, or 
 justice of the peace. 
 
 ATTEMPTS TO ALARM OR INJURE THE QUEEN. 
 
 It will be remembered that at the beginning of the Acts tending to 
 reign of Her Majesty a morbid desire for notoriety q^^ "'^ 
 induced certain youths to annoy, her by discharging 
 fire-arms at her person, or in her presence. To put an 
 end to this, the legislature provided that deeds of this 
 kind should be regarded as high misdemeanors (e). 
 The acts enumerated are — To discharge, point, aim, or 
 
 Cy) 33 & 34 Vict. c. 23, ». 31. 
 
 (z) N.B. — A man is convicted when found guilty ; he was said to be 
 attainted when judgment had been given, 
 (a) 33 & 34 Vict. <;. 23, ». 1. 
 (6) V. p. 445. 
 (c) V. p. 38. 
 
 Id) 1 & 2 Phil. & Mary, c. 10. 
 («) 5 & 6 Vict. c. 51. 
 
54 
 
 OFFENCES AGAIlSrST THE GOVBENMENT AND SOTEKEIGN. 
 
 Felonious com- 
 passing to 
 depose, levy 
 war, induce 
 invasion. 
 
 present at the person of the Queen any gun or other 
 arms, whether containing any explosive or destructive 
 material or not ; to discharge any explosive substance 
 near her; to strike or throw anything at her with 
 intent to injure or alarm her, or break the public 
 peace ; or in her presence to produce any arms or de- 
 structive matter with like intent. The punishment is 
 penal servitude to the extent of seven years, or im- 
 prisonment not exceeding three years. To this, very 
 appropriately, the court may add that the offender be 
 whipped, publicly or privately, once, twice, or thrice 
 during the term of imprisonment. 
 
 TKEASON-PELONYj Or FELONIOUS COMPASSING TO LEVY 
 WAE, ETC. 
 
 Certain offences which had been declared treason by 
 statute (/) were, by a later statute (ff), made felonies. 
 To these, on account of their treasonable character, 
 the name " treason-felony " is sometimes given. The 
 acts enumerated are — Compassing, &c., to deprive or 
 depose the sovereign from the style, honour, or name 
 of the Crown of the United Kingdom, or other of her 
 dominions ; (b) to levy war against the sovereign 
 within the United Kingdom, in order by force or con- 
 straint to compel her to change her measures or coun- 
 cils, or to put force or constraint upon, or intimidate 
 or overcome both Houses, or either House of Parlia- 
 ment; (c) to move or to stir any foreigner or stranger 
 with force to invade the United Kingdom, or any other 
 of the sovereign's dominions. 
 
 This compassing, &c., must be evidenced by some 
 overt act, or by something published in printing or 
 writing (A). Though the facts alleged in the indict- 
 
 (/) 36 Geo. 3, c. 7, s. 1. 
 
 (g) 11 & 12 Vict. c. 12, s. 3. 
 
 (A) A third mode was mentioned — by open and advised speaking. But 
 prosecutions for the prohibited practice, if they were expressed merely in 
 this manner, were not to be had beyond two years from the passing of the 
 Act (1848-1850), s. 4. 
 
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 55 
 
 ment, or pursued on the trial of any person indicted 
 under this Act for felony, amount to treason, the 
 person is not by reason thereof entitled to be acquitted 
 of such felony ; but if tried for the felony he cannot 
 afterwards be prosecuted for treason upon the same 
 facts (i). The punishment may extend to penal servi- 
 tude for life. 
 
 SEDITION. 
 
 Sedition is a comprehensive term, embracing all Sedition, wiiat 
 those practices, whether by word, deed, or writing, '' ™°^'''' '°- 
 which are calculated to disturb the tranquillity of the 
 state, and lead ignorant persons to endeavour to sub- 
 vert the government and the laws of the empire. The 
 objects generally are to excite discontent or dissatis- 
 faction, to stir up opposition to the government, and 
 to bring the administration of justice into contempt (j). 
 
 This description is somewhat vague; but in that 
 respect it only resembles the offence itself. It is hard 
 to lay down any decisive line, on one side of which acts 
 are seditious, and on the other innocent. The term 
 " sedition " is commonly used in connection with words 
 written or spoken. It includes, however, many other 
 acts, some of which are treated of separately ; for ex- 
 ample, training to arms, unlawful secret societies or 
 meetings, &c. 
 
 What is sufficient to constitute seditious libels or Seditious libels 
 words ? It may be answered generally — such political " ^^"^ 
 writings or words as do not amount to treason (k), but 
 which are not innocent. We have already seen what 
 constitute treason. As to what are innocent : it is the 
 right of a free subject to criticise and censure freely 
 the conduct of the servants of the Crown, whether 
 ministerial or judicial, and the acts of the government 
 
 (i) 11 & 12 Vict. c. 12, s. 7. 
 
 0) B. V. Sullivan, B. v. Pigott, 11 Cox, 44, 45. 
 
 (/f) Though treason itself may be said to be a kind of sedition. 
 
56 OFFENCES AGAINST THE GOVEBNMENT AND SOVEBEIGN. 
 
 and proceedings in courts of justice, so long as he does 
 it not with malignity nor imputes corrupt or malicious 
 motives (Z). The test proposed by an eminent autho- 
 rity is the following : " Has the communication a plain 
 tendency to produce public mischief by perverting the 
 mind of the subject and creating a general dissatisfac- 
 tion towards government " (m). 
 
 Truth of Proving the truth of a seditious libel is no excuse 
 
 seditious libel £qj, ^.jjg publishing it : nor will it extenuate the punish- 
 no extenuation. ,^ 11 /\i*in 
 
 ment, inasmuch as the statute (n), which allows the 
 
 defendant charged with libel to plead the truth under 
 
 certain conditions, does not apply to seditious libels (o). 
 
 The punishment for seditious libels or words is fine 
 and imprisonment. Punishable in the same way are 
 slanderous words uttered to a magistrate. 
 
 UNLAWFUL OATHS AND SOCIETIES. 
 
 Unlawful Oaths. — At the end of the last century, in conse- 
 
 caths. quence of sedition and mutiny having been promoted 
 
 by persons banding themselves together under the 
 obligation of an oath, an Act was passed to make 
 criminally punishable those who took oaths of a certain 
 character : — Any person administering or causing to 
 be administered, or aiding in or being present at and 
 consenting to such administering, any oath or engage- 
 ment intended to .bind any person to engage in any 
 mutinous or seditious purpose ; or to disturb the . 
 peace; or to be of any society formed for such pur- 
 pose ; or to obey the orders of a committee or body of 
 men not lawfully constituted, or of any leader or com- 
 mander or other person not having authority by law 
 for that purpose ; or not to inform and give evidence 
 against any associate or other person ; or not to dis- 
 
 (?) S. V. Sullivan, &o., supra. 
 
 (m) V. 1 Russ. 339. 
 
 (n) 6 & 7 Vict. c. 96, s. 6. 
 
 (o) £. v.-Duffy, 2 Co.x, 45 ; S. ,. Burdett, 4 B. & Aid. 95. 
 
OFFENCES AGAINST THE GOTEKNMENT AND SOVEREIGN. 57 
 
 cover an unlawful combination, or illegal act, or illegal 
 oath or engagement — is guilty of felony. The punish- 
 ment is penal servitude from five to seven years. The 
 same consequences also attend taking such an oath 
 when not compelled to {jp). It will be observed that 
 this statute is not confined to oaths administered for 
 seditious and mutinous purposes, but applies to other 
 unlawful combinations, e.g., to raise wages {q). 
 
 A later statute {r) declares to be felony the taking 
 part in administering any oath intended to bind a 
 person to commit any treason, or murder, or any felony 
 punishable with death. The punishment for such 
 offence is penal servitude to the extent of life, or im- 
 prisonment not exceeding three years. The punish- 
 ment for taking such an oath is penal servitude for the 
 same term (s). 
 
 Persons taking these oaths by compulsion are not Oaths taken by 
 excused on that account unless they disclose the cir- compulsion. 
 cumstance to a justice of the peace, one of the secre- 
 taries of state, or the privy council within, under the 
 first statute, four days ; under the second statute, four- 
 teen days {t). The oath need not be in any precise Form of oath. 
 form so long as the parties understood it to have the 
 force and obligation of an oath ; therefore, of course, it 
 is not necessary that it should be taken on the 
 Bible (m). 
 
 Societies. — Societies are deemed unlawful combi- Unlawful 
 nations if their members are required to take any ^°'='*''^'- 
 oath or engagement which is unlawful under the two 
 above-mentioned statutes of Greorge III., or is not 
 required or authorized by law, or of which the mem- 
 
 (p) 37 Geo. 3, c. 123, s. 1. 
 
 ((/) S. V. Marks, 3 East, 157. 
 
 (r) 52 Geo. 3, o. 104, s. 1. 
 
 (s) 7 Wm. 4 & 1 Vict. c. 91, s. 1. 
 
 (i) s. 2 of each statute. 
 
 (m) £. V. Lmelass, 6 C. & P. 596. 
 
58 OFFENCES AGAINST THE GOTEENMENT AND SOVEREIGN. 
 
 bers subscribe any unauthorized test or declaration. 
 Also societies the names of whose members or officers 
 are kept secret; or which, consisting of different 
 branches, elect committees or delegates to communi- 
 cate with other societies {v). Exceptions are made in 
 favour of societies for religious and charitable purposes 
 and freemasons' lodges ; also as to declarations ap- 
 proved of by two justices and registered according to 
 the provisions of the Act. 
 
 Proceedings may be taken against persons connected 
 with such societies, either by way of summary con- 
 viction before justices, or by indictment. In the latter 
 case penal servitude to the extent of seven years may 
 be awarded. The proceedings must be commenced in 
 the name of the law officers of the Crown. 
 
 OFFENCES AGAINST THE FOREIGN ENLISTMENT ACT. 
 
 Foreign Enlist- The objcct of this statute (x) is to regulate the con- 
 mo ^''*^' ^^'^^ °^ Majesty's subjects during the existence of 
 hostilities between foreign states with which Her 
 Majesty is at peace. The necessity for some regulations 
 is obvious. Were English subjects allowed to inter- 
 fere as they thought proper in foreign wars, the state 
 would inevitably be involved in misunderstandings 
 with the foreign powers. 
 
 Two classes of criminal acts are dealt with : — 
 
 Illegal enlistment. Illegal ship-building and ex- 
 peditions. 
 
 Offences cou- Illegal Enlistment — Doing any of the following acts 
 neoted with -yyithout the Sovereign's licence is prohibited : (a) En- 
 
 illegal enlist- . ...° ,, '^ , ,.,.', 
 
 ment. listing, or mducmg any other person to enlist, m the 
 
 (m) 39 Geo. 3, c. 79 ; 57 Geo. 3, o. 19 ; 9 & 10 Vict. c. 33. 
 (») 33 & 34 Vict. li. 90, repealing 59 Geo. 3, c. 69. 
 
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 59 
 
 service of a foreign state at war with a friendly state ; 
 (b) leaving Her Majesty's dominions (or inducing, &c.) 
 with intent to serve such foreign state ; (o) embarking 
 persons under false representations in order that they 
 may be led to enter into such service ; (d) the master 
 or owner of a ship taking illegally enlisted persons on 
 board ship. In each case the offender may be punished 
 by fine, or imprisonment not exceeding two years, or 
 both. And in the case of illegally taking on board, 
 the ship is detained until satisfaction is given; and 
 illegally enlisted persons are put on shore and not 
 allowed to return to the ship (y). 
 
 Illegal Shijp-building, &c. — Building, (b) commission- illegally build- 
 ing, (c) equipping, or (d) despatching a ship, knowing ^^' shhjT''"'"' 
 or having reasonable cause to believe (the burden of 
 proof lying on the builder that it is not illegal) that 
 the ship is to be employed in the service of such a 
 state, if done without licence, is punishable in the 
 same way, and the ship and her equipments are for- 
 feited to the Queen. If the contract for building the 
 ship has been made before the beginning of the war, 
 the builder or equipper is not punishable if he gives 
 due notice to the Secretary of State, and insures that 
 the ship will not be despatched until the termination 
 of the war without the licence of the Queen (z). 
 
 Augmenting, without licence, the warlike force of a other illegal 
 ship in such service by adding to the number of guns, *'^'°' 
 &c., is punishable in the same way (a). So, also, 
 fitting out without licence a naval or military expe- 
 dition against a friendly state, with the additional 
 consequence that the ships, arms, &c., are forfeited (6). 
 
 The offender may be tried within the jurisdiction Trial. 
 
 (!/) 33 & 34 Vict. c. 90, ss. 4-7. 
 {z) Ibid. ss. 8, 9. 
 (a) Ibid. s. 10. 
 lb) Ibid. s. 11. 
 
60 OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN, 
 
 where the oifence was committed, or where the offender 
 may be (c). 
 
 A judge of a superior court in the United Kingdom, 
 or elsewhere of the highest British Court of criminal 
 jurisdiction, may order the trial to be had at any place, 
 the removal to which may be conducive to the interests 
 of justice (d). If thought proper, proceedings may be 
 taken contemporaneously against the offender and 
 against the ship for forfeiture (e). 
 
 DESERTION, MUTINY, AND INCITING THERETO. 
 
 Inciting to Any person who maliciously endeavours to seduce a 
 
 desertion or person Serving in Her Majesty's sea or land forces from 
 his duty or allegiance, or incites him to any mutiny or 
 mutinous practice, is guilty of felony. It is punishable 
 with penal servitude to the extent of life, or imprison- 
 ment not exceeding three years. The trial may be had 
 at the assizes for any county in England (/). 
 
 Desertion, &c., The above is the provision for punishment in the 
 
 puni^ed under- Qj,^^^j^j.y gj-iminal courts. But it must be remembered 
 
 Acts. that annually Mutiny Acts (one for the army and one 
 
 for the marines) are passed. These regulate, among 
 
 other things, the proceedings and punishments of courts 
 
 martial. They declare that any person who, directly 
 
 or indirectly, induces a soldier to desert is guilty of a 
 
 misdemeanor, and, on conviction before two magistrates, 
 
 may be imprisoned to the extent of six months. The 
 
 deserter himself is punished with death, or such other 
 
 punishment as shall be awarded by court martial. The 
 
 Naval Disci- Naval Discipline Act (1866) (y) provides for the 
 
 phne Act. punishment by court martial of mutiny and other 
 
 (c) 33 & 34 Vict. c. 90, s. 17. 
 Id) Ibid. s. 18. 
 (e) Ibid. s. 20. 
 
 If) 37 Geo. 3, c. 70, perpetual by 67 Geo. 3, c. 7. v. 7 Wm. 4 & 1 Vict 
 c. 91, s. 1. 
 
 (3) 29 & 30 Vict. c. 109, s. 10. 
 
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 61 
 
 offences committed by persons subject to that Act; 
 mutiny with violence being made punishable with 
 death. Punishments are also set forth for those who 
 endeavour to seduce those subject to the Act from their 
 allegiance (h). 
 
 ILLEGAL TRAINING AND DRILLING. 
 
 Meetings for the purpose of training or drilling to illegal training 
 the use of arms without authority from the sovereign, *'"' drilling. 
 or the lieutenant, or two justices of the peace of the 
 county, are illegal. Any person who is present for the 
 purpose of training or assisting in training is guilty of 
 a misdemeanor, and is liable to penal servitude to the 
 extent of seven years. If he is present for the purpose 
 of being himself trained, he is punishable with fine 
 and imprisonment not exceeding two years. The pro- 
 secution must be commenced within six months after 
 the offence committed. Any magistrate, constable, or 
 peace officer may disperse such meetings, and arrest 
 and detain any person present (i). 
 
 UNLAWFUL DEALINGS WITH PUBLIC STORES. 
 
 The law on this subject is consolidated by the Public Offences re- 
 Stores Act, 1875 (k). Certain marks are appropriated p^^*i?f„ '."J,'^'. 
 by the Grovernment for the distinguishing of naval 
 stores, certain dealings with these marks are criminal. 
 If any one without lawful authority, which he must 
 prove, applies any of these marks in or on any such 
 stores, he is guilty of a misdemeanor, and may be im- 
 prisoned for a term not exceeding two years (l). If 
 any one, with intent to conceal Her Majesty's property 
 in such stores, obliterates these marks, wholly or in 
 
 (h) See next page for general remarks as to the punishment of offences 
 by those in the army or navy. 
 
 (0 eOGeo. 3 & 1 Geo. 4, c. 1, ss. 1, 2. 
 (A) 38 & 39 Vict. c. 25. 
 (I) Ibid. s. 4. 
 
62 
 
 OFFENCES AGAINST THE GOVEENMENT AND SOVEREIGN. 
 
 part, he is guilty of felony, and is punishable with 
 penal servitude to the extent of seven years (m). The 
 unlawful possession of public stores is punishable on 
 summary conviction (n). 
 
 APPENDIX. 
 OFFENCES BY MEMBEBS OF THE AEMY AND NAVY. 
 
 Offences in the It will be Convenient here to see on what footing the 
 navy ^""^ army and navy are with regard to proceedings and 
 punishment for crime. 
 
 Mutiny Acts, 
 their punish- 
 ments, &c. 
 
 As to the army. — We have already noticed that 
 Mutiny Acts are annually published for the govern- 
 ment of the military forces. These Acts are substan- 
 tially the same from year to year, though, of course, 
 they may vary in their details and figures. Provision 
 is made for the trial of military offenders by court 
 martial. It is provided that every officer or private 
 who shall incite or join any mutiny, or knowing of it 
 shall not give notice to the commanding officer, or shall 
 desert, or enlist in any other regiment, or sleep upon 
 his post, or leave it before he is relieved, or hold cor- 
 respondence with a rebel or enemy, or strike or use 
 insolence to his superior officer; or disobey his lawful 
 commands, shall suffer death or such other punishment 
 as the court martial may inflict. Other offences are 
 set forth and their punishments prescribed. The court 
 martial may sentence any officer or soldier to de9,th, 
 penal servitude, imprisonment, forfeiture of pay or 
 pension, or any other punishment which shall accord 
 with the usage of the service. No person acquitted or 
 convicted by a civil magistrate or by a jury is to be 
 tried by court martial for the same offence. 
 
 The Mutiny Act does not, however, exempt soldiers 
 
 (m) 38 & 39 Vict. c. 25, 
 (n) Ibid. ss. 7-11. 
 
OFFENOES AGAINST THE GOVEBNMENT AND SOVEEEIGN. 63 
 
 from being punishable by the ordinary criminal courts. Soldiers not 
 It expressly proTides that nothing therein is to be con- ordinary'""' 
 strued to extend to exempt any officer or soldier from criminal pro- 
 being proceeded against by the ordinary courts of law, "'^ '°^'" 
 when accused of felony or misdemeanor, or of any crime 
 or offence other than the misdemeanors and offences 
 mentioned in the Act. 
 
 As to the navy. — The NaTal Discipline Act (1866) (o) Naval Disci- 
 makes similar provisions for the navy as to courts 
 martial, the trial of offences, no exemption from ordi- 
 nary criminal jurisdiction, &c. 
 
 COINAGE OFFENCES. 
 
 So decidedly were offences relating to the coin re- Certain coinage 
 garded as offences against the government, inasmuch ^™!.'treason 
 as they not only infringed the royal prerogative, but 
 also were calculated to make the public faith suspected, 
 that in the statute of Edward III. two of them were 
 declared treason, viz., (a) the actual counterfeiting the 
 gold and silver coin of the realm, and (b) the import- 
 ing such counterfeit money with intent to utter it, 
 knowing it to be false {p). These offences were, how- 
 ever, made felonies by a later statute {g). 
 
 It may be noticed that at least one class of coinage 
 offences, viz., uttering counterfeit money, might be 
 dealt with as a particular case of obtaining goods or 
 money by false pretences (r). 
 
 The law on the subject under consideration has been 
 consolidated by a recent statute (s). It will be our 
 task to present its matter under several heads. 
 
 (o) 29 & 30 Vict. c. 109. 
 (p) V. p. 47. 
 (?) 2 Wm. 4, c. 34. 
 (f) Fitz. St. 141. 
 
 {s) 24 & 25 Vict. c. 99. In the present division the quoting of a section 
 must be understood to refer to this Act. 
 
64 OFFENCES AGAINST THE GOVERNMENT AND SOTEREIGN. 
 
 Counterfeiting. A. Cowtiterfeiting Coin.— A distinction is made as to 
 the kind of coin. Whosoever falsely makes or counter- 
 feits any coin resembling, or apparently intended to 
 resemhle or pass for 
 
 i. The current gold or silver coin of this realm, com- 
 monly called the Queen's money (t), 
 
 ii. Foreign gold or silver coin (u), 
 
 iii. The Queen's current copper coin (x), 
 
 is guilty of felony, and is punishable, in the case of 
 gold and silver coin of the realm, with penal servitude 
 to the extent of life ; in the other cases, to the extent 
 of seven years. 
 
 Counterfeiting 
 
 iv. Foreign coin other than gold or silver coin is a 
 misdemeanor, punishable for the first offence with im- 
 prisonment not exceeding one year; for the second 
 offence with penal servitude to the extent of seven 
 years (y). 
 
 The offence is complete although the false coin has not 
 been finished, or is not in a fit state to be uttered (z) ; 
 much less is any attempt to utter necessary. Any one, 
 not necessarily an of&cer from the mint, may at the 
 trial prove the falseness (a). In this offence is included 
 that committed by persons lawfully engaged in coining, 
 who make the coin lighter or of baser alloy. The 
 counterfeiting can generally only be proved by circum- 
 stantial evidence; for example, by proof of finding 
 coining tools in working order, and pieces of the money, 
 some in a finished, some in an unfinished state. 
 
 Colouring. B. Colouring Coin. — Colouring, washing, &c., coun- 
 
 (f) s. 2. 
 (») s. 18. 
 {x) s. 14. 
 (y) s. 22. 
 iz) s. 30. 
 (o) =. 29. 
 
OFFENCES AGAINST THE GOVERNMENT AND SOVEREIGN. 65 
 
 terfeit coin, or any piece of metal with intent to make 
 it pass for gold or silver coin ; or colouring, filing, or 
 otherwise altering genuine coin with intent to make it 
 pass for coin of a higher degree, is a felony punishable 
 with penal servitude to the extent of life (6). 
 
 C. Impairing, &c., Gold and Silver Coin. — Impairing, impairing. 
 diminishing, or lightening any of the Queen's gold or 
 
 silver coin, with the intent that it shall pass for gold 
 or silver coin, is felony, punishable with penal servitude 
 to the extent of fourteen years (c). 
 
 Having in possession any filings, clippings, dust, 
 &c., obtained by the above-mentioned process, is a 
 felony, the limit of penal servitude for which is seven 
 years (d). 
 
 D. Defacing Coin. — Defacing the Queen's gold, silver, Defacing, 
 or copper coin, by stamping thereon any names or 
 words, although the coin be not thereby lightened, is a 
 misdemeanor, punishable with imprisonment not ex- 
 ceeding one year (e). It should be added that coin so 
 defaced is not legal tender; and by the permission of 
 
 the Attorney-General or Lord Advocate, any person 
 who tenders or puts off coin so defaced may be brought 
 before two magistrates, and on conviction be fined not 
 exceeding forty shillings (/). 
 
 E. Bwying or Selling, &c., Counterfeit Coin at lower Dealing in 
 value. — Any person, without lawful authority or excuse coin°under its 
 (the proof whereof lies on the accused), buying, selling, ^aiue. 
 receiving, or putting off any counterfeit coin for a lower 
 
 rate or value than it imports, is guilty of felony. If 
 
 (6) s. 3. 
 
 (c) ».4. 
 
 {d) s. 5. 
 
 (e) s. Iti. 
 
 (/) s- 17. 
 
66 OFFENCES AGAIKST THE GOVERNMENT AND SOVEKBIGN. 
 
 the counterfeit be of gold or silver the extent of penal 
 servitude is life {g) ; if copper, the limit is seven 
 years Qi). 
 
 Importing. p. Importing and Exporting Counterfeit Coin. — Im- 
 
 porting or receiving into the United Kingdom from 
 beyond the seas, without lawful authority, &c., counter- 
 feit gold or silver coin, knowing the same to be false 
 and counterfeit, is a felony, punishable with penal 
 servitude to the extent of life (i). It is said that im- 
 porting the coin from the Queen's dominions beyond 
 the seas does not fall within this section, because the 
 counterfeiting there is punishable by the laws of Eng- 
 land (y). Importing foreign counterfeit coin is a felony, 
 the limit of the penal servitude for which is seven 
 years (&). 
 
 Exporting. Exporting, or putting on board any vessel for the 
 
 purpose of being exported from the United Kingdom 
 any coin counterfeit of the Queen's current coin, with- 
 out lawful authority, &c., is a misdemeanor punishable 
 with imprisonment not exceeding two years (T). 
 
 uttering. G". Uttering Counterfeit Coin. — Tendering, uttering, 
 
 or putting off counterfeit gold or silver coin, knowing 
 the same to be false and counterfeit, is a misdemeanor 
 punishable with imprisonment not exceeding one 
 year (m). If at the time of uttering the offender has 
 any other counterfeit coin in his possession, or if he 
 within ten days utters another coin, knowing it to be 
 counterfeit, the punishment may extend to two years (n). 
 If the uttering is after a previous conviction for either 
 of these offences, or for having in possession three or 
 
 (a) S.6. 
 
 (A) s. 14. 
 
 (0 S.7. 
 
 if) T. Arch. 788. 
 
 (A) s. 19. 
 
 (0 s. 8. 
 
 (m) s. 9. 
 
 In) ». 10. 
 
OFFENCES AGAINST THE GOTEENMENT AND SOVEEEIGN. 67 
 
 more pieces of counterfeit, or for any felony relating 
 to the coin, the utterer is guilty of felony, and may be 
 sentenced to penal servitude for life (o). 
 
 Uttering counterfeit coin meant to resemble a foreign 
 gold or silver coin, is punishable for the first offence 
 with imprisonment not exceeding six months ; for the 
 second not exceeding two years. The third offence is 
 a felony punishable with penal servitude to the extent 
 of life (p). 
 
 Uttering spurious coin, e.g., foreign coin, medals, 
 pieces of metal, &c., as current gold or silver coin, with 
 intent to defraud, is a misdemeanor punishable with 
 imprisonment to the extent of one year (q). 
 
 H. Having Counterfeit Coin in Possession. — Having Having in 
 three or more counterfeit gold or silver coins in posses- possession. 
 sion, knowing them to be counterfeit, and intending to 
 utter or put off them, or any of them, is a misdemeanor 
 punishable with penal servitude limited to five years (r). 
 If after previous conviction for either of the misde- 
 meanors mentioned in sects. 9 and 10, or any felony 
 relating to the coin, the crime is a felony, and may be 
 punished with penal servitude to the extent of life (s). 
 If the coin is the Queen's copper coin the limit of the 
 punishment is imprisonment for one year (t). Having 
 in possession without lawful excuse more than five 
 pieces of foreign counterfeit coin renders the possessor 
 liable to a penalty on conviction before a justice (m). 
 
 I. Making, &c., Coining Tools. — Knowingly and with- Making, &c., 
 out lawful authority, &c., making or mending, buying *''°'^' 
 
 (o) s. 12. 
 Ip) ss. 20, 21. 
 (?) s. 13. 
 (r) s. 11. 
 (s) s. 12. 
 (0 s. 15. 
 (k) s. 23. 
 
 F 2 
 
68 
 
 Trial whether 
 coin is 
 
 diminished or 
 couDterfeit. 
 
 OFFENCES AGAINST THE GOVERNMENT AND SOVEKEIGN. 
 
 or selling, or having in custody or possession any coin- 
 ing instrument or apparatus adapted and intended to 
 make any gold or silver coin or foreign coin, is a felony 
 punishable with penal servitude for life {x). If the 
 instruments, &c., are designed for coining the Queen's 
 copper coin, the limit of the penal servitude is seven 
 years («/). 
 
 Conveying out of the Mint, without lawful authority, 
 &c., any coining instrument, or any coin, bullion, metal, 
 or mixture of metals, is a felony punishable with penal 
 servitude for life («). 
 
 If in any case coin is suspected to be diminished or 
 counterfeited, it may be cut, bent, &c., by any person 
 to whom it is tendered ; the loss to fall on the deliverer 
 if the coin is found to be counterfeit or unreasonably 
 diminished ; on the person to whom tendered, if found 
 correct (a). Provision is also made for the seizure by 
 any one finding them of counterfeit coin or tools ; for 
 the search for the same ; and for their ultimate delivery 
 to the officers of the Mint or other persons duly autho- 
 rized to receive them (h). 
 
 CONCEALMENT OF TREASUEE TEOVE. 
 
 Treasure trove. Treasure trove, that is, treasure found hid in (not 
 upon) the earth, belongs to the sovereign or his gran- 
 tees. The offence of concealing it was formerly punish- 
 able by death ; now by fine and imprisonment (c). 
 
 Other offences ^ variety of other offences affecting the sovereign 
 government and government, and thence called contempts or high 
 and sovereign. misdemeanoTS, might be noticed, but it will suffice here 
 
 (») s. 24. 
 (y) s. 14. 
 («) s. 25. 
 (a) s. 26. 
 lb) s. 27. 
 (c) B. V. I'liomas, .S3 L. J. (M.C.) 22. 
 
OFFEKCES AGAINST THE GOVERNMENT AND SOVEEEIGN. 
 
 merely to mention them, referring for a fuller notice 
 to Blackstone's Commentaries. Contempts against the 
 sovereign's title, as the denial of his right to the 
 crown ; against his person and government, as drink- 
 ing to the pious memory of a traitor; against his 
 prerogative, as by disobeying his lawful commands; 
 against his palaces or courts of justice, as by fighting 
 in either ; maladministration of high offices ; embezzling 
 the public money; selling public offices. These are 
 generally punishable by fine and imprisonment, but 
 are rarely made the subject of indictment, unless they 
 fall within the province of some other crime. 
 
 The subject of Prmmunire may also be dismissed Pi-fflmuniie, 
 very summarily. The offence originally consisted in 
 introducing a foreign power into the land, through 
 obeying papal bulls and processes. The punishment 
 for this was considered something terrible, the offender 
 being put out of the king's laws and protection, his lands 
 and goods forfeited, and himself imprisoned during the 
 king's pleasure. These penalties of praemunire were 
 afterwards by different statutes applied to other great 
 offences, some having no connection with the original 
 crime, for example, to restrain the importation or 
 making of gunpowder (d). But, some of the statutes 
 having become obsolete and others having been re- 
 pealed, prosecutions of this nature are never now heard 
 of. The reader will find a discursive treatment of the 
 subject in Blackstone, or his modern editors (e). 
 
 (li) 16 Car. 1, c. 21. 
 
 (e) 4 Bl. 103 ; 4 St. Bl. 168. 
 
( 70 ) 
 
 CHAPTER III. 
 
 OFFENCES AGAINST RELIGION. 
 
 Grounds on On what grounds does the state arrogate to itself the 
 which the • j^^ q£ pimishing ofifences against Eeligion ? Cer- 
 
 state punishes o -r , ° . . /./-iimiij.!. 1, 
 
 oifenoes against tainly not as the minister oi trod, ihe state nas oD- 
 leligion. served that certain acts or courses of conduct, which 
 
 are forhidden by religion, are also productive of dis- 
 order and mischief to the community. It has therefore 
 provided for the punishment of those that offend, not 
 in consequence of the breach of the law of God, hut 
 as the result of the breach of the law of the country. 
 That the state does not consider itself under an obliga- 
 tion to enforce the law of morality, as such, is obvious 
 from the fact that mere lying and other acts of im- 
 morality are not within the pale of the criminal law. 
 This violation of human law is the true ground of 
 interference, though in some of the offences we shall 
 notice it is impossible to shut our eyes to the fact 
 that in early times the legislators did to some extent 
 consider themselves authorized to punish mere ir- 
 religion. 
 
 APOSTACY BLASPHEMT. 
 
 Apostacy. Apostacy, or the total remmciation of Christianity, 
 
 was for a long period punished by the ecclesiastical 
 courts only, at one time the punishment they awarded 
 being death. Later, however, the civil power thought 
 it necessary to interfere, " by not admitting those 
 miscreants to the privilege of society who maintained 
 such principles as destroyed all moral obligations " (/). 
 
 (/) 4 Bl. 44. 
 
OFFENCES AGAINST BELIGION. 71 
 
 It was provided that if any one educated in, or having 
 made profession of the Christian religion, by writing, 
 printing, teaching, or advised speaking, maintains that 
 there are more Gods than one, or denies the Christian 
 religion to be true, or the Holy Scripture to be of 
 divine authority, for the second offence, besides being 
 incapable of bringing an action, or being guardian, 
 executor, legatee, or grantee, must suffer imprison- 
 ment for three years without bail (ff). There shall be 
 no prosecution for such words spoken, unless informa- 
 tion of such words be given on oath before a justice 
 within four days after they are spoken, and the pro- 
 secution be within three months after such informa- 
 tion (h). The offender is to be discharged, if, within 
 four months after his first conviction, he renounces 
 his error («). 
 
 Blasphemy is also punishable at conlmon law by fine Blasphemy. 
 and imprisonment. Christianity, as it is said, is a 
 part of the law of England, and a gross outrage against 
 it is to be punished by the state. The offences include 
 not only the blasphemous libels by one who has been 
 attached to the Christian religion and has apostatized, 
 as to which we have seen particular provisions have 
 been made, but also denying, whether orally or by 
 writing, the being or providence of the Almighty, con- 
 tumelious reproaches of our Lord and Saviour Christ, 
 profane scoffing at the Holy Scriptures, or exposing 
 any part thereof to contempt or ridicule (k). But the 
 disputes of learned men upon particular points of reli- 
 gion are not punished as blasphemy (T). It remains 
 merely to add that the law is rarely put in force, and 
 then only because the libel is of a most extravagant 
 nature. 
 
 (g) 9 & 10 Wm. 3, c. 32. s. 1 ; in the Revised Statutes, u. 35. 
 
 (A) Ibid. s. 2. 
 
 (j) Ibid. s. 3. 
 
 Ik) V. 1 Russ. 332, 333. 
 
 (T) For cases v. Arch. 814. 
 
72 
 
 OPffBNCBS AGAINST RELIGION. 
 
 Offences 
 relating to 
 public worship. 
 
 DISTUEBING PUBLIC WOESHIP. 
 
 Any person wilfully and maliciously or contemptu- 
 ously disturbing any lawful meeting of persons as- 
 sembled for public worship, or molesting the person 
 officiating or any of those assembled, upon proof by 
 two or more credible witnesses before a magistrate, 
 must answer for such offence at the sessions, and upon 
 conviction is fined forty pounds (m). Eiotous, violent, 
 or indecent behaviour is also punishable on summary 
 conviction (n). 
 
 WITCHOEAFT, SOEOEBY, ETC. 
 
 Witchcraft, &c. Punishment (generally death) for these supposed 
 evil practices belonged to a state of society different 
 from ours. It is only about a century and a half, how- 
 ever, since an Act was passed to the effect that pro- 
 secutions for such practices should cease ; at the same 
 time making punishable by imprisonment persons pre- 
 tending to use witchcraft, tell fortunes, or discover 
 stolen goods by skill in any occult or crafty science (o). 
 
 Palmistry, &c. By a later statute, persons using any subtle craft, 
 means, or device, by palmistry, or otherwise to deceive 
 Her Majesty's subjects, are dealt with in their true 
 character, namely, as rogues and vagabonds, and are 
 punishable by imprisonment (p). 
 
 Under this head may be noticed the case of Eeligious 
 Impostors, who are punishable by fine and imprison- 
 ment. 
 
 Two offences dealt with by the magistrates may be 
 noticed here briefly : — 
 
 Swearing. Profane swearing is punishable on summary con- 
 
 viction by fine (cj). 
 
 (m) 52 Geo. 3, c. 155, s. 12. 
 
 («) V. 23 & 24 Vict. c. 32, s. 2. 
 
 (o) 9 Geo. 2, c. 5. 
 
 ip) 5 Geo. 4, c. 83, s. 4. 
 
 (?) V. 19 Geo. 2, o. 21. 
 
OFFENCES AOAINST EBLIGION. 73 
 
 Profanation of the Sabbath is an offence which has Profanation of 
 been brought into prominence through recent pro- "'^ Sabbath. 
 secutions. The statute of Charles H. provides that no 
 person may do any work of his ordinary calling upon 
 the Lord's Day, works of necessity and charity only 
 excepted, under penalty of five shillings. Nor may 
 any one expose to sale any wares, on penalty of for- 
 feiting his goods ; nor may drovers, &c., travel, under a 
 penalty of forty shillings (r). But no prosecution for 
 such offence may be commenced without the consent of 
 the chief officer of the district, or of two justices, or of 
 a stipendiary magistrate (s). 
 
 Places of amusement, debate, &c., open on Sunday, 
 admission to which is paid for, are to be deemed dis- 
 orderly houses, and as such may be suppressed, and 
 the keeper fined or imprisoned {t). The Crown has, 
 however, recently been empowered to remit the penal- 
 ties (m). 
 
 Certain practices which were at one time criminally Heresy, and 
 punishable, are now no longer so. Heresy which con- "^^^^ ^"^'^ 
 gists not in a total denial of Christianity, but in an punishable 
 open denial of some of its principal doctrines, as held ciminaiiy. 
 by the church, has been again subjected only to eccle- 
 siastical correction, pro salute animas (x). Offences 
 against the National Church which are either negative, 
 that is. Nonconformity, or positive, by reviling its 
 ordinances, &c. {y), though nominally liable to legal 
 penalties, are never practically made the subjects of 
 prosecution (z). 
 
 (r) 29 Car. 2, c. 7. 
 
 (s) 34 & 35 Vict. o. 87, continued by subsequent statutes. 
 (t) 21 Geo. 3, c. 49 ; v. p. 133. 
 
 (m) 38 & 39 Vict. 0. 80; v. Terry v. Brighton Aquarium Co., L. R. 10 
 Q. B. 306. 
 
 (») 29 Car. 2, c. 9 ; 4 Bl. 49. 
 («/) v. 1 Edw. 6, u. 1 ; 1 Eliz. c. 2. 
 (4 As to Simmy v. i St. Bl. 212. 
 
( 74 ) 
 
 CHAPTEK IV. 
 
 OFFENCES AGAINST PUBLIC JUSTICE. 
 
 In the first place we shall treat of that class of offences 
 against public justice which consist in avoiding oneself, 
 or assisting another to avoid, the punishments awarded 
 by a court of justice. 
 
 Escape ; Breach of Prison ; Being at large during 
 a term of Penal Servitude ; Eescue ; Obstruct- 
 ing Lawful Arrest. 
 
 ESCAPE. 
 
 Escape, breach The distinction between the first two and fourth 
 of prison, and offences has been thus put : — Where the liberation of 
 tingulshed. the party is effected either by himself or others, with- 
 out force, it is more properly called an escape; where 
 it is effected by the party himself, with force, it is 
 called prison hreaking ; where it is effected by others, 
 with force, it is commonly termed a rescue (a). We 
 have to consider the cases of delinquents in three posi- 
 tions : the prisoner who escapes ; the person who aids 
 him ; those in whose custody he is, whether officers of 
 the law or private individuals. 
 
 If a prisoner escapes out of the custody of the con- 
 stable, before he is imprisoned, he is punishable with 
 fine and imprisonment. 
 
 Escape from 
 officers. 
 
 Officers who, after an arrest, negligently allow a 
 prisoner to escape are punishable with fine ; if they 
 
 (a) V. 1 Russ. 581 ; 1 Hale, P. C. 590. 
 
OFFENCES AGAINST PUBLIC JUSTICE. 75 
 
 voluntarily permit it, they are deemed guilty of the 
 same offence and are liable to the same punishment as 
 the prisoner who escapes from their custody ; and this 
 whether the latter has been committed to gaol, or is 
 only under bare arrest. But the officer cannot be thus 
 punished for a felony until after the original offender 
 has been convicted. Before the conviction, however, 
 he may be fined and imprisoned as for a misdemeanor. 
 The allowing the escape is punishable criminally only 
 if the original imprisonment were for some criminal 
 matter. 
 
 Private individuals having persons lawfully in their Escape from 
 custody, who negligently allow an escape, are punishable P"™'® 
 by fine or imprisonment, or both ; if volvmtarily, they 
 are punishable as an officer would be under the same 
 circumstances. Of course at any -time they may 
 deliver the person in charge over to an officer. 
 
 Aiding in the escape of a prisoner from a prison, Aiding to 
 other than a convict, military, or naval prison (i), or, «=<=*?«• 
 with intent so to aid, conveying to him a mask, disguise, 
 instrument, or any other thing, is a felony punishable 
 with imprisonment to the extent of two years (c). 
 Aiding a prisoner in custody for treason or felony to 
 make his escape from the constable or officer convey- 
 ing him under a warrant to prison is a felony punish- 
 able with penal servitude to the extent of seven 
 years {d). Aiding a prisoner of war to escape is a 
 felony punishable with penal servitude for life (e). 
 
 BREACH OF PEISON. 
 
 rison. 
 
 The consequences of breach of prison vary according Breach of 
 to the crime for which the prisoner is in custody. If P''" 
 
 (6) As to these see the statutes quoted in Arch, 838-9. 
 (o) 28 & 29 Vict. c. 126, ». 37. 
 ((/) 16 Geo. 2, c. 31, s. 3. 
 (e) 52 Geo. 3, c. 156. 
 
76 OFFENCES AGAINST PUBLIC JUSTICE. 
 
 he ia in custody for treason or felony, the breach is also 
 felony and punishable by penal servitude to the extent 
 of seven years ; and in the case of a man also by whip- 
 ping once, twice, or thrice (/). If he is in custody for 
 any other offence, the breach is a misdemeanor and 
 punishable by fine and imprisonment. There seems 
 also to be this difference between the two cases — in 
 the first, it must be proved that the prisoner escaped ; 
 in the second, this is not necessary. 
 
 To constitute this offence there must be an actual 
 breaking, though it need not be intentional. Merely 
 getting over the wall and the like is an escape only. 
 It will be a sufficient defence to prove that the prisoner 
 has been indicted for the original offence and acquitted ; 
 otherwise it is not material whether the accused was 
 guilty of the original offence or not. 
 
 " Prison " here includes any place where one is law- 
 fully imprisoned, whether upon accusation or after con- 
 viction ; for example, in the gaol or constable's house. 
 
 BEING AT LARGE DTTRING TEEM OF PENAL SERVITUDE. 
 
 Penal servitude was substituted for transportation in 
 the year 1857 (g) ; but the incidents of the latter attach 
 to the former. 
 
 Escape from For a convict to be at large without lawful authority, 
 servitude. which it lies on him to prove, before the expiration of 
 "the term of transportation or penal servitude to which 
 he was sentenced, is a felony punishable by penal servi- 
 tude even to the extent of life, and previous imprison- 
 ment not exceeding four years; or else by imprison- 
 ment not exceeding two years (h). 
 
 (/) 1 Edw. 2, St. 2, c. 1, in Revised Statutes 23 Edw. 1. Stat, de frang. 
 pris. 
 
 (3) 20 & 21 Vict. c. 3. 
 
 (A) 5 Geo. i, 0. 84, s. 22 ; 4 & 5 Wm. 4, c. 67. 
 
OFFENCES AGAINST PUBLIC JUSTICE. 77 
 
 EESCUE. 
 
 Kescue is the forcibly and knowingly freeing another Rescue. 
 from arrest or imprisonment. If the original offender 
 is convicted, the rescuer is guilty of the same offence as 
 such original, whether it be treason, felony, or misde- 
 meanor. If the rescuer is thus convicted of felony, the 
 punishment is penal servitude to the extent of seven 
 years, or imprisonment from one to three years («') ; if 
 of misdemeanor, fine or imprisonment, or both. If the 
 original is not convicted, nevertheless the rescuer may 
 be punished by fine and imprisonment as for a mis- 
 demeanor (j). 
 
 Eescuing or attempting to rescue a person convicted 
 of murder, whilst proceeding to execution ; or rescuing 
 out of prison a person committed for or convicted of 
 murder, is a felony punishable with penal servitude to 
 the extent of life, or imprisonment not exceeding three 
 years (k). 
 
 Eescuing or attempting to rescue an offender sen- 
 tenced to penal servitude from a person charged with 
 his removal, is a felony punishable in the same way as 
 if the party had been in gaol (T). 
 
 Another offence somewhat of the same character. Poundbreach, 
 cattle instead of persons being rescued from the custody 
 of the law, is Poundbreach. To rescue cattle distrained 
 for rent or for damage feasant is a misdemeanor at 
 common law, punishable by fine and imprisonment, or 
 both. 
 
 OBSTKUOTING LAVWUL AEEEST, ETC. 
 
 To prevent the execution of lawful process is at all Obstructing 
 times an offence, but more especially so when the '*'^^"' *''''*^'- 
 
 (0 1 & 2 Geo. 4, c. 88, ». 1. 
 
 If) 2 Hawk. c. 21, ,. 8. 
 
 (4) 25 Geo. 2, c. 37. s. 9 ; 7 Wm. 4 & 1 Vict. c. 91, .-.. 1. 
 
 (0 5 Geo. 4, c. 84, s. 22. 
 
78 OFFENCES AGAINST PUBLIC JUSTICE. 
 
 object is to prevent the arrest of a criminal. It has 
 been held that the party opposing such an arrest 
 becomes thereby pariieeps criminis, that is, an accessory 
 in felony, otherwise a principal {m). The statutes 
 abolishing so-called sanctuaries or privileged places 
 make opposition in those places a felony. 
 
 An assault upon, resistance to, or wiKul obstructipn 
 of, a peace officer in the execution of his duty, or any 
 person acting in his aid ; or an assault upon any person 
 with intent to resist or prevent the lawful apprehension 
 or detainer of himself or of any other person for any 
 offence, is a misdemeanor, punishable with imprison- 
 ment to the extent of two years (w). Wounding, doing 
 grievous bodily harm to, shooting at, or attempting to 
 shoot at, any person with such intent, is punishable 
 with penal servitude to the extent of life (o). 
 
 Refusing to aid Not Only positively obstructing an officer, but also 
 an officer. refusing to aid him in the execution of his duty in 
 order to preserve the peace, is a crime. The latter 
 offence is a misdemeanor at common law {p). 
 
 PEEJUEY. 
 
 Definition. The Crime committed by one who, when a lawful 
 
 oath is administered to him in some proceeding in 
 a court of justice of competent jwrisdiction, swears 
 wilfully, absolutely, and falsely in a matter material to 
 the issue or point in question (cj). 
 
 False oaths not Such is the definition of perjury at common law. 
 amounting to rjij^g qualification with which it must be taken will 
 
 P6ritirv. 
 
 appear below. Certain other false oaths are attended 
 
 (m) 2 Hawk. c. 17, s. 1. 
 
 (») 24 & 25 Vict. c. 100, s. 38. 
 
 (o) Ibid. ». 18. 
 
 ip) T. R. V. Brown, C. & M. 314. 
 
 (?) 3 Inst. 164 ; t. E. t. Aylett, 1 T. R. 69. 
 
OFFENCES AOAINST PUBLIC JUSTICE. 79 
 
 by the punishments of perjury, though they are not 
 known by that name. And whenever an Act of Parlia- 
 ment requires an oath to be taken, but does not make 
 it perjury to take a false oath, though not perjury, the 
 taking such oath is a misdemeanor (r) ; for example, the 
 oath required to be taken before a surrogate in order 
 to obtain a marriage licence (s). 
 
 It may be necessary to remind the reader that the False affirma- 
 false affirmation of a Quaker, Moravian, Separatist, or of *"'°^' 
 any other person who is by law authorized to make an 
 affirmation or declaration in lieu of an oath, is on the 
 same footing, and visited with the same consequences, as 
 perjury. 
 
 The nature of the oath must first be considered : Nature of the 
 a lawful oath taken in a judicial proceeding, adminis- '"'*''' 
 tered within the authority of the tribunal &c., ad- 
 ministering. As a rule it must be taken in a court of 
 justice, but there are apparent exceptions ; for example, 
 it has been held perjury for a clergyman to take a false 
 oath against simony at the time of his institution {{). 
 It is immaterial whether the oath be taken in the face 
 of the court, or out of it by a person authorized to 
 examine matters depending in it, as in the case of affi- 
 davits ; or whether it be taken in relation to the 
 merits of the cause, or in a collateral matter, for ex- 
 ample, on inquiring into the sufficiency of bail (m). 
 The oath must be taken before a person who has^Mm- 
 diction of the cause, and lawful authority to administer 
 the oath. Thus, in the case of a trial taking place 
 where the court has no jurisdiction, a witness cannot 
 be indicted for perjury thereat. Nor if the court, &c., 
 has authority to administer some oath, but not that 
 which is the foundation of the charge. Every court. 
 
 (r) Fitz. St. 277. 
 (s) B. V. Foster, R. & R. 459. 
 (0 B. V. Lewis, 1 Str. 70. 
 (w) 3 Russ. 3. 
 
80 OFFENCES AGAINST PUBLIC JUSTICE. 
 
 judge, justice, officer, commissioner, arbitrator, or other 
 person now or hereafter having, by law or by consent 
 of parties, authority to hear, receive, and examine 
 evidence, is empowered to administer an oath to all 
 witnesses legally called (x). 
 
 The taking of The oath must be taken falsely, wilfully, and ahso- 
 theoath. lutely; "falsely" refers to the taking of the oath, 
 not to the truth of what is sworn It is immaterial 
 whether the fact which is sworn to be in itself true or 
 false. The question is. Did the defendant believe 
 what he said to be true ? If not, he is guilty of perjury. 
 It is not necessary that he should know that it was 
 untrue ; for he will be guilty if he swears to the truth, 
 not knowing anything about the matter ; much moj^e if 
 he swears to the truth, thinking what he swears is 
 untrue. In other words, he is guilty if his intention 
 can be proved to be to deceive. Thus he will not be 
 innocent, though he swears that he only believes such 
 and such to be the case, if he knows it to be not so. 
 Of course it will be more difficult in such cases to 
 establish the guilt of the defendant (y). As we have 
 just seen, the answer must be given intentionally or 
 wilfully ; it must also be given with some degree of 
 deliberation. Mere inadvertence or mistake will not 
 support the charge, as, if the witness is bewildered on 
 cross-examination. Of course prevarication, though 
 the actual words used are true, will not shield the 
 defendant ; as when a witness assured the court that a 
 man could not live for two hours longer if he went on 
 as he (the witness) left him ; the fact being that at the 
 time he was very well, but had got a bottle of gin to 
 his mouth («). 
 
 Materiality of The matter sworn to must be material to the cause 
 the oath. depending in the court. If the matter is wholly 
 
 («) 14 & 15 Vict. c. 99, s. 16. 
 ly) R. V. Pedley, 1 Leach, 327. 
 («) Loft's Gilb. Ev. 662. 
 
OFFENCES AGAINST PUBLIC JUSTICE. 81 
 
 foreign to the purpose, or altogether immaterial, and 
 neither any way pertinent to the matter in question, 
 nor tending to aggravate or extenuate the damages, 
 nor likely to induce the jury to give a readier credit to 
 the substantial part of the evidence, it cannot be per- 
 jury (a). Thus, if on a trial to determine whether a 
 person is sane or not a witness introduces his evi- 
 dence by giving an account of a journey which he 
 took to see the party, and swears falsely in relation 
 to some of the circumstances of the journey, this 
 would not be sufficient to support an indictment for 
 perjury (b). 
 
 It is not necessary to constitute perjury that the 
 false oath be believed, or that any person be damaged 
 by it; for the prosecution is grounded, not on the 
 damage to the party, but on the abuse of public justice. 
 A false verdict is not regarded as perjury, because it is Acts not 
 said the jurors do not swear to depose the truth, but jraoun'iig 
 
 to pBriury. 
 
 only to judge of the depositions of others. So the 
 
 (a) 1 Hawk. u. 69, s. 8. 
 
 (6) It is suggested that there is no solid ground for this rule as to 
 materiality ; that it originated in a misapprehension. The authorities on 
 which it is based " appear to be cases in which the witness misunderstood 
 the gist of the question, and so- was rather mistaken than perjured. If 
 this were so, the inference drawn from the cases ought to be, not that the 
 circumstances must be material, but that the witness must understand that 
 the court requires him to answer specifically upon these points. It ' is 
 obviously a very diflFerent thing to give an answer circumstantially in- 
 correct under a misapprehension of the point of the question asked, and 
 wilfully to swear falsely on some circumstance collateral to the principal 
 point at issue. It clearly ought to be the duty of the witness to give true 
 answers to every question asked by the court. To allow him to answer 
 immaterial questions falsely is to extend an arbitrary impunity to a certain 
 number of perjuries, for it cannot be supposed that any witness knows at 
 the time of swearing whether the question which he answers is material 
 or not."— Kitz. St. 279. 
 
 The groundlessness of this rule was adverted to by Erie, C.J., in the 
 following terms : " Whenever the question arises whether a person may 
 not be guilty of perjury, who, with intent to mislead the court, wilfully 
 swears falsely on a matter which, in the opinion of the judge, is of doubtful 
 admissibility, or immaterial to the inquiry, it will be one well worthy of 
 the careful consideration of all the judges." — £. v. Mullany, 34 1. J. (M.C.) 
 111. 
 
82 OTPBNCBS AGAINST PUBLIC JUSTICE. 
 
 breaking of their oaths by interpreters, officers in 
 charge of the jury, &c., does not amount to perjury ; 
 inasmuch as it is an essential of perjury that the 
 accused has been sworn to depose to the truth. 
 
 Upon an indictment for perjury, it is sufficient if any 
 one of the assignments of perjury be proTed (e). 
 
 Procedure. Perjury is one of the offences included under the 
 
 Vexatious Indictments Act ; and, therefore, no bill of 
 indictment can be presented to or found by the grand 
 jury unless one of the preliminary steps indicated in 
 the Act has been taken (d). 
 
 Any Judge (e) may direct the prosecution of a person 
 who appears to have been guilty of perjury in his 
 evidence given before him, and may commit the accused 
 to gaol unless he gives sufficient security for his ap- 
 pearance at the assizes (/). 
 
 There must be It is a well-known rule that the testimony of a 
 two witnesses giggle witness is not sufficient to convict on a charge 
 of perjury. Two witnesses at least must contradict 
 what the accused has sworn ; or, at any rate, one must 
 so contradict, and other evidence must materially cor- 
 roborate that contradiction (g). But this rule does not 
 apply when the perjury consists in the defendant's 
 having contradicted what he swore on a former occa- 
 sion ; in this case the testimony of a single witness in 
 support of the defendant's own original statement will 
 suffice (h). The reason usually assigned for the rule is, 
 that if one witness were allowed to suffice to prove 
 perjury, it would only be oath against oath. But other 
 
 (o) S. V. Rhodes, 2 Lord Eaym. 886. 
 
 (d) V. p. 344. 
 
 (e) As to who are comprised in this term, see the Act. 
 If) 14 & 15 Vict. c. 100, s. 19. 
 
 (3) T. R. V. Boviter, 21 L. J. (M.C.) 57 ; 5 Cox, 543. 
 (/i) B. V. Knill, 5 B. & Aid. 929, n. 
 
OFFENCES AGAINST PtTBLIO JUSTICE. 83 
 
 considerations, such as the great necessity for the pro- 
 tection of witnesses, also have weight (i). 
 
 Perjury is a misdemeanor. At one time it was Punishment, 
 punished with death; afterwards with fine and im- 
 prisonment. Now the punishment is again more severe, 
 namely, penal servitude to the extent of seven years, or 
 imprisonment to the same extent Qc). 
 
 STJBOKNATION OF PEKJUEY. 
 
 The procuring another to take such a false oath as Subornation, 
 constitutes perjury in the principal (Z). The offence 
 does not amount to subornation if that other does not 
 actually take the false oath; hut it is nevertheless 
 punishable. 
 
 The punishment for subornation is the same as for 
 perjury itself; and the same course has to be taken 
 under the Vexatious Indictments Act (m). 
 
 VOIiUNTAKY OATHS. 
 
 It will be remembered that in a former chapter (w) it Administering 
 was shewn that administerinar or taking certain oaths o^' t*i^i°g 
 
 •Ti 1 T (V • I ^ m-i • voluntary 
 
 was illegal and an ofience against G-overnment. This oaths. 
 section deals with quite another matter. The evil to 
 be guarded against in this case is the misuse of a valu- 
 able engine of the law, and the consequent weakening 
 of its effect when resorted to on proper occasions. 
 
 It is unlawful for a justice of the peace or other 
 
 (i) T. Best, Et. 751. This rule seems to be a second instance (v. p. 24) 
 of the law's interference with the province of the jury. It should always be 
 a part of their duty to estimate the credibility of witnesses. 
 
 (^) 2 Geo. 2, c. 25, s. 2. In cases where another's life is wilfully " sworn 
 away " by a perjurer, it is hard to see why the latter should not be regarded 
 as guilty of murder. The punishment foi' the crime is by no means 
 excessive. 
 
 (0 4 Bl. 138. 
 
 (m) For a list of statutes applicable to perjury, &c., v. Arch. 866. 
 
 (n) V. p. 56. 
 
 G 2 
 
84 OFFENCES AGAINST PUBLIC JUSTICE. 
 
 person to administer or receive, or cause or allow to be 
 administered or received, any oath, affidavit or solemn 
 affirmation touching any matter whereof he has not 
 jurisdiction or cognizance by some statute in force (o). 
 The olBfenee is a misdemeanor, punishable by fine or 
 imprisonment, or both. The administering, &c., is 
 punishable, although the person did not act wilfully in 
 contravention of the statute, but only inadvertently (jo). 
 
 FALSE DECLAEATIONS. 
 
 Statutes • A great number of statutes declare punishable false 
 declarations* ^* declarations with regard to the subjects with which 
 
 such statutes deal. We will merely mention a few of 
 
 the chief (q) : — 
 
 Parliamentary elections : 6 Vict. c. 18, s. 81 ; 35 & 36 
 Vict. c. 33. 
 
 Municipal elections: 5 & 6 Wm. 4, c. 76, s. 34; 
 35 & 36 Vict. c. 33. 
 
 Under the Bankruptcy Act, 1869 : 32 & 33 Vict, 
 c. 62, s. 14. 
 
 In matters relating to the Customs, Excise, &c : 
 16 & 17 Vict. c. 107, s. 198 ; 18 & 19 Vict. c. 96, s. 38. 
 
 Before Eegistrars as to Births, Marriages, or Deaths: 
 6 & 7 Wm. 4, c. 86, s. 41 ; 37 & 38 Vict. c. 88, ss. 40, 46. 
 
 Before Magistrates : 5 & 6 Wm. 4, c. 62, s. 18. 
 
 BEIBEKY. 
 
 The corrupt treatment of one intrusted with a public 
 charge, to influence him in the discharge of his duty in 
 that character. 
 
 (o) 5 & 6 Wm. 4, c. 62, s. 13. 
 
 (p) B. V. Nott, 12 L. J. (M.C.) 143. 
 
 (?) ^ /'^ll list ^ill be found in Arch. 866, and with more detailed 
 treatment m Rose. 465. 
 
OFFENCES AGAINST PUBLIC JUSTICE. 85 
 
 The offence, -which may be thus generally defined, Bribery a wide 
 comprises acts differing considerably from each other. *'''™" 
 They may be divided into two classes : — 
 
 1. Where some person concerned in the administra- 
 tion of public justice (r) is approached by one bringing 
 him a reward, in order to influence his conduct in his 
 office. 
 
 2. Where some person having it in his power to pro- 
 cure, or aid in procuring, for another a public place or 
 appointment, is so approached (s). 
 
 1. The offence of offering to, or receiving by, an officer. Bribery to 
 judicial or ministerial (t), an undue reward to influence ^l^T^f^^"'^' 
 his behaviour in his office, is a misdemeanor punishable in office. 
 
 by fine and imprisonment. Both the giver and the 
 taker are guilty. And though the reward be refused, 
 the offerer is equally punishable for the attempt. The 
 offence is not restricted to the case of influencing the 
 higher officers, such as judges or members of the 
 Government ; but extends to those in a subordinate 
 position, for example, constables, as if one bribe a 
 constable to refrain from executing a warrant. A par- 
 ticular species of bribery, viz., corruptly influencing 
 jurymen, will be treated of hereafter under the title 
 embracery (m) 
 
 2. For the sake of convenience we may distinguish Bribery to pro- 
 two varieties of this offence :— ™''" ^^''' *'• 
 
 i. When the place or appointment is in the gift of 
 some public officer. 
 
 ii. When it is determined by public election. 
 
 i. This offence may also be regarded as following 
 
 (r) V. infra, as to ministerial officers. 
 
 (s) y. 1 Hawk. c. 67, ss. 1-3. 
 
 (i) The text books, in general, confine the offence of bribery to a bribery 
 of judicial officers ; but this definition of the offence seems too narrow. 
 Arch. 870. 
 
 (m) v. p. 89. 
 
86 OFFENCES AGAINST PUBLIC JUSTICE. 
 
 under the first class (1), inasmuch as the presentation 
 to the place by the public officer is one of the duties of 
 his office. The offence is a misdemeanor. Even the 
 attempt to procure an appointment by offering a sum 
 of money to a cabinet minister was punished as a mis- 
 demeanor («). 
 
 Consequences By particular statutes it has also been provided that 
 °n puHif'"^ persons selling public offices shall lose all right to the 
 offices. appointment, and the buyers shall not only be ejected, 
 
 but also be disabled from ever holding such office («/). 
 Those buying or selling, or receiving or paying money 
 or rewards for offices, are guilty of a misdemeanor (z). 
 So also are persons who do not thus directly buy or sell, 
 but who pay money for soliciting or obtaining offices, 
 or any negotiations or pretended negotiations relating 
 thereto (a). Certain other offences in connection with 
 the traffic in offices (b) are dealt with ; and certain excep- 
 tions are made, for example, the sale of commissions in 
 the army (c). 
 
 ii. Bribery at elections. 
 
 Bribery at As to parliamentary elections. — The law on this sub- 
 
 eil^rtfons™'"^ ject is contained chiefly in the Corrupt Practices Pre- 
 vention Act, 1854 (d), amended by later statutes. 
 
 On the part of The offences declared to be bribery on the part of the 
 the candidate, (.g^^^^g^ate or his agents are the following : — 
 
 (a.) To, directly or indirectly, by himself, or by any 
 
 (») R. v. Vaughan, 4 Burr. 2494. 
 
 (i/) 5 & 6 Edw. 6, c. 16, s. 2 ; 49 Geo. 3, c. 126, s. 1. 
 
 {z) 49 Geo. 3, c. 126, s. 3. 
 
 (a) Ibid. s. 4. 
 
 (6) As to what offices are within the statute, v. 1 Russ. 216 ; 3 Chittv 
 St. 465. ■" 
 
 (o) It is almost needless to remind the reader that the force of this 
 exception was taken away be the Royal Warrant of July, 1871 abolishing 
 purchase, v. 34 & 35 Vict. c. 86. " 
 
 {d) 17 & 18 Vict. c. 102, amended by 21 & 22 Vict. u. 87 ■ 26 Vict 
 u. 29 ; 30 & 31 Vict. c. 102, s. 49 ; 31 & 32 Vict. c. 125, ss. 43-47. 
 
OFFENCES AGAINST PUBLIC JUSTICE. 87 
 
 other person on his behalf, giye, lend, or agree to give 
 or lend ; or offer, promise, or promise to procure, or to 
 endeavour to procure, any money, or valuable considera- 
 tion (e), to or for any voter, or to or for any person on 
 behalf of any voter, or to or for any other person, in 
 order to induce any voter to vote, or refrain from voting, 
 or to corruptly do any such act as aforesaid on account 
 of such voter having voted or refrained from voting at 
 any election. 
 
 (b.) To give, &c., any office, plaee, or employment, under 
 the same circumstances. 
 
 (c.) To do any of the things mentioned above, in order 
 to induce the person benefited to procure, or endeavour 
 to procure, the return of any person, or any vote. 
 
 (d.) The act of the person so procuring, &c. 
 
 (e.) To pay, &c., money, with the intent that it shall 
 be expended in bribery ; or knowingly to pay it in dis- 
 charge of what has been so expended. 
 
 The offender is guilty of a misdemeanor, and is 
 punishable by fine and imprisonment. He is also 
 liable to forfeit £100 to any one who shall sue for the 
 same (/). 
 
 The following are offences on the part of the voter. On the part of 
 and are punishable in the same way, except that the ^^^ ^°''^''' 
 sum to be forfeited is only £10 : — 
 
 (a.) Before or during the election, directly or indi- 
 rectly, to receive, agree, or contract for any of the 
 above-mentioned benefits, for voting or refraining from 
 voting. 
 
 (b.) After an election to receive any money or valuable 
 consideration on account of having voted or refrained 
 
 (e) Including paying the voter's rates, &c., 30 & 31 Vict. u. 102, ». 49, 
 If) 17 & 18 Vict. c. 102, 5. 2. 
 
88 
 
 Treating. 
 
 Undue 
 influence. 
 
 Further 
 offences. 
 
 OFFENCES AGAINST PUBLIC JUSTICE. 
 
 from voting, or having induced any other person so 
 to do (ff). 
 
 Treaiing — Defined to be, giving, ~&c., meat, drink, 
 or entertainment to any person, to influence his vote — 
 subjects the ofi'ender to a penalty of £50 (h). 
 
 Undue influence — Defined to be, threats of any force, 
 violence, or restraint; or intimidation by menace of 
 injury, harm, or loss ; or any abduction or fraudulent 
 device, by which the exercise of the electoral franchise 
 is impeded or prevented — is a misdemeanor, punishable 
 by fine and imprisonment, and forfeiture of £50 as 
 above (»'). 
 
 By a later statute {j) it is a misdemeanor, punishable 
 by fine and imprisonment, for any candidate to mate 
 any payment except through authorized agents ; or for 
 a candidate or his agent to furnish an untrue statement 
 of expenses. 
 
 Proceedings on the above ofiences must be commenced 
 within a year from the time of the ofi'ence com- 
 mitted Qt). 
 
 Disquaiifioa- Certain disqualifications also attach to candidates and 
 to" tho^se'guiity others who have been found guilty of bribery. Among 
 of bribery. other things, the candidate is rendered incapable of 
 
 sitting in the House of Commons within seven years 
 
 after the offence Q). 
 
 As to municipal elections. — Any person who is guilty 
 of a corrupt practice at such an election is liable to the 
 
 ((/) 17 & 18 Vict. u. 102, s. 3. 
 
 (A) Ibid. s. 4. 
 
 (0 Ibid. s. 5. 
 
 O') 26 Vict. c. 29, ss. 2, 4. 
 
 (/t) 17 & 18 Vict. c. 102, s. 14; 26 Vict. >;, 29, s. 5 
 
 (0 31 & 32 Vict. c. 125, ss. 43^7. 
 
OFFENCES AGAINST PUBLIC JUSTICE. 89 
 
 like actions, prosecutions, penalties, forfeitures, and 
 punishments, as if the corrupt practices had been com- 
 mitted at a parliamentary election (m). 
 
 EMBKACEBY, ETC. 
 
 Embracery is an attempt to influence a jury cor- Embracery. 
 ruptly to give a verdict in favour of one side or party, 
 by promises, persuasions, entreaties, money, entertain- 
 ments, and the like. Thus it appears to be a particular 
 kind of bribery. A juryman himself may be guilty of 
 this ofi'ence by corruptly endeavouring to bring over 
 his fellows to his view. The offence is a misdemeanor, 
 both in the person making the attempt, and also in 
 those of the jury who consent. The punishment— both 
 at common law and by statute — is fine and imprison- 
 ment (n). 
 
 There are certain other acts interfering with the free Other offences 
 administration of justice at a trial, which are considered "f^^J^ili^ * 
 as high misprisions and contempts, and are punishable 
 by fine and imprisonment. Such are the following : — 
 
 Intimidating the parties or witnesses. 
 
 Endeavouring to dissuade a witness from giving evi- 
 dence, though it be without success. 
 
 Advising a prisoner to stand mute. 
 
 Assaulting or threatening an opponent for suing 
 him ; a counsel or attorney for being employed against 
 him ; a juror for his verdict ; a gaoler or other minis- 
 terial officer for what he does in the discharge of his 
 duty. 
 
 For one of the grand jury to disclose to the prisoner 
 the evidence against him. 
 
 (m) 35 &36 Vict. c. 60, b. 3. 
 (n) 6 Geo. 3. c.^0, s. 61. 
 
90 OFFENCES AGAIKST PUBLIC JUSTICE. 
 
 There are three offences, somewhat liable to con- 
 fusion, which consist in an unlawful interference in 
 another's suit, or in stirring up such suits : — 
 
 Common Barratry ; Maintenance ; Champerty. 
 
 COMMON BABBATBY. 
 
 Common The offence of frequently inciting and stirring up 
 
 barratry. ^^j^^ ^^^ quarrels between Her Majesty's subjects, 
 either at law or otherwise (o). It is insufficient to 
 prove a single act, inasmuch as it is of the essence of 
 the offence that the offender should be a common bar- 
 retor. Of course it is no crime for a man frequently to 
 bring actions in his own right, though he be unsuccess- 
 ful, unless they are purely groundless and yexatious. 
 
 The offence is a misdemeanor, punishable by fine 
 and imprisonment. If the offender is connected with 
 the legal profession, he is disabled from practising for 
 the future. If, having been convicted of this offence, 
 he afterwards practises, the court may inquire into the 
 matter in a summary way ; and on the subsequent 
 practising being proved, the offender may be sentenced 
 to penal servitude to the extent of seven years (p). 
 
 Suing in name Another offence of a like nature may be noticed, 
 pMntiff""^ namely, suing in the name of a fictitious plaintiff. If 
 committed in the superior courts it is a high contempt, 
 punishable at their discretion. If in the inferior courts, 
 it is punished by imprisonment for six months, and 
 treble damages to the person injured {q). 
 
 MAINTENANCE. 
 
 Maintenance. The officious intermeddling in a suit that in no way 
 belongs to one, by maintaining or assisting either 
 
 (o) 4 Bl. 134. 
 
 ip) 12. Geo. 1, c. 29, s. 4, made perpetual. 
 
 (<7) 8 Eliz. 0. 2. 
 
OFFENCES AGAINST PUBLIC JUSTICE. 91 
 
 party with money or otherwise, to prosecute or defend 
 it {r). It is a misdemeanor punishable by fine and 
 imprisonment (s). 
 
 It has been declared to be maintenance to bear the 
 whole or part of the expenses of the suit for another, or 
 to retain a solicitor or counsel for him. But acts of 
 this kind are justifiable in respect of an interest in 
 the thing in variance, as that of a reversioner; of 
 kindred or affinity; of other relations, e.g., landlord and 
 tenant, master and servant; of charity, e.g., to enable a 
 poor man to carry on his suit ; of the profession of the 
 law, e.g., to act as counsel or solicitor. And it may be 
 said generally, that the courts would be very loth at 
 the present day to declare an act of this kind to be an 
 offence criminally indictable, unless some corrupt 
 motive were manifestly present. This remark also 
 applies to the next ofience. 
 
 CHAMPERTY. 
 
 Champerty is a species of maintenance. The dis- Champerty, 
 tinguishing feature is, that the bargain is made with 
 the plaintiff or defendant campum partire, that is, in 
 the event of success to divide the land or other subject- 
 matter of the suit with the champertor in consideration 
 of his carrying on the party's suit at his own expense. 
 Thus it has been held punishable as champerty to com- 
 municate such information as will enable a party to 
 recover a sum of money by action, and to exert influ- 
 ence in procuring evidence to substantiate the claim, 
 upon condition of receiving a portion of the sum 
 recovered (t). 
 
 (r) 1 Hawk. c. 83, s. 23. 
 
 (s) This maintenance is sometimes termed euralis, to distinguish it from 
 another species — ruralis, which latter consists in assisting another to his 
 pretensions to lands, or holding them for him by force or subtility, or 
 stirring up quarrels or suits in the county, in relation to matters wherein 
 he is no way concerned. (Bac. Abr.) This seems to approach the crime 
 of barratry. 
 
 (t) Stanley v. Jones, 7 Bing. 869. 
 
92 OFFENCES AGAINST PUBLIO JUSTICE. 
 
 COMPOUNDING OFFENCES. 
 
 Mere forbear- Fortunately, or unfortunately, in England, there is 
 ance to prose- j^ official as a public prosecutor. Moreover, a 
 
 cute, no crime. -t ,%. , , j. xt. i • 
 
 private individual is not obliged to set the law m 
 motion for the prosecution of a criminal, though, as we 
 shall see, he is punishable for the concealment of 
 treason or felony (m). Thus, merely to forbear to pro- 
 secute is no offence ; there is wanting something else 
 to constitute a crime, and this essential is the taking 
 some reward or advantage. 
 
 Under this title we shall treat of compounding 
 (a) felonies J (b) misdemeanors; (c) informations on 
 penal statutes; noticing also the offence of taking 
 rewards for helping to recover stolen goods. 
 
 Compounding (a.) Compounding felony, or forbearing to prosecute 
 felony. ^ felou ou accouut of somc reward received, is a misde- 
 
 meanor, punishable by fine and imprisonment {y). Of 
 course the reward need not be of a monetary nature, 
 but may be any advantage proceeding from or on 
 behalf of the felon and accruing to the person who for- 
 bears. The most common form of this crime is what 
 was anciently known as theft-bote, that is, the forbear- 
 ing to prosecute a thief, on consideration of receiving 
 one's stolen goods back again, or other advantage. But 
 the mere taking back stolen goods, without shewing any- 
 favour to the thief, is no crime. After the compound- 
 ing, the compounder having prosecuted the felon to 
 conviction, the judge directs an acquittal for the com- 
 pounding (w). 
 
 To corruptly take any reward for helping a person 
 
 («) T. p. 94. 
 
 («) It must be confessed that the English system, by leaving prosecutions 
 to so great an extent in private hands, does its best to encourage this class 
 of offence. 
 
 (w) B. V. Stone, 4 C. & P. 379. 
 
OFFENCES AGAINST PUBLIC JUSTICE. 
 
 93 
 
 to property stolen or obtained, &c., by any felony or Taking reward 
 misdemeanor (unless all due diligence to bring the 3^^,^° pj"." 
 offender to trial has been used), is a felony punishable perty, &o. 
 by penal servitude to the extent of seven years (a;). An 
 advertisement offering a reward for the return of stolen 
 or lost property, using words purporting that no ques- 
 tions will be asked, or seizure or inquiry made after the 
 person producing the property, or that return will be 
 made to any pawnbroker or other person who has 
 bought or made advances on such property — renders the 
 advertiser, printer, and publisher liable to forfeit £50 
 each (j/). But an action cannot be brought to recover 
 the forfeiture from the printer or publisher except 
 within six months after the forfeiture is incurred ; nor 
 at all without the consent of the Attorney or Solicitor 
 General (z). 
 
 (b.) Compounding misdemeanors seems strictly to be Compounding 
 illegal, as impeding the course of public justice. But ™'' emeanor,',. 
 after conviction, the court not uncommonly allows a 
 course to be adopted which comes to the same thing. 
 If the misdemeanor principally and more immediately 
 affects an individual (such as one for which he might 
 sue and recover in a civil action), as a battery, impri- 
 sonment, or the like, the court sometimes permits the 
 defendant to speak with the prosecutor, before any judg- 
 ment is pronounced ; and if the prosecutor declares him- 
 self satisfied, inflicts but a trivial punishment {a). But 
 this will not be allowed if the offence is of a more 
 public nature (fc). 
 
 (c.) Compounding informations upon penal statutes. — 
 In order to promote the discovery and punishment of 
 
 (k) 24 & 25 Viot. 0. 96, s. 101. 
 
 (!/■) Ibid. s. 102. 
 
 («) 33.& 34 Yiot. c. 65, s. 3. 
 
 (a) This course is pursued to reimburse the prosecutor for his expenses, 
 and make him some private amends without the trouble and circuity of a 
 civil action. But it surely is a dangerous practice. 4 Bl. 363. 
 
 (6) V. Keir v. Leeman, 6 Q. B. 308 ; 9 Q. B. 371. 
 
94 
 
 OFFENCES AGAINST PUBLIC JUSTICE. 
 
 Compounding Crime, many statutes imposing a penalty on the offender 
 ii" ^'"enaT' ^™^^ *^® penalty, either in part or in whole, to any 
 statutes. person who prosecutes, hence termed a common in- 
 
 former. It is clearly a gross abuse of this arrangement, 
 not only tending to "the escape of offenders, but also 
 encouraging malicious threats of proceedings, for a 
 person to take a reward on condition that he do not act 
 as an informer. Accordingly it has been enacted that 
 if any person informing, under pretence of any penal 
 law, makes any composition without leave of the court, 
 or takes any money or promise from the defendant to 
 excuse him, he forfeits £10, and is liable to such im- 
 prisonment and further fine as the court shall award, 
 and is for ever disabled from suing on any popular 
 or penal statute (c). A person may be thus convicted 
 of taking a reward for forbearing to prosecute, although 
 no offence liable to a penalty has been committed by 
 the person from whom the money is taken (d). 
 
 Misprision of 
 felony. 
 
 MISPRISION OF FELONY. 
 
 Misprision of felony is the concealment of some 
 felony (other than treason (e)) committed by another. 
 There must be knowledge of the offence merely, with- 
 out any assent ; for if a man assent, he will either be a 
 principal or an accessory. Thus one will be guilty of 
 misprision who sees a felony committed and takes no 
 steps to secure the apprehension of the offender. The 
 offence is a misdemeanor, punishable by fine and im- 
 prisonment. 
 
 CEDIINAL DEALINGS WITH EEOORDS. 
 
 Records: steal- Certain offcnccs with regard to judicial records and 
 ing, forging, documents are severely punished. They chiefly fall 
 under the heads of " Larceny " and " Forgery." A mere 
 
 &c 
 
 (c) 18 Eliz. c. 5 ; 56 Geo. 3, c. 138, s. 2. 
 
 (d) S. V. Best, 9 C. & P. 368. 
 
 (e) Misprision of treason, v. p. 53. 
 
OFFEKCES AGAINST PUBLIC JUSTICE. 95 
 
 enumeration of the chief of these offences will suffice 
 here, more particulars being given under the titles 
 referred to above : — 
 
 Stealing, injuring, &c., records, &c. : 24 & 25 
 Vict. c. 96, s. 30 (/). 
 
 Forging, &c., records, &c : 24 & 25 Vict. c. 98, 
 SB. 27-31 (g). 
 
 For an employee in the Eecord Office to certify a 
 writing as a true copy of a record knowing it to 
 be false, is punishable by penal servitude to the 
 extent of life, or imprisonment from two to four 
 years (h). 
 
 EXTORTION AND OTHER MISCONDUCT OF PUBLIC OFFICERS. 
 
 Every malfeasance, or culpable . non-feasance of an Misconduct 
 officer of justice, with relation to his office, is a misde- ™ °''''^^- 
 meaner punishable by fine or imprisonment, or both. 
 Forfeiture of his office, if a profitable one, will also 
 generally ensue. Under the term "officers of justice" 
 are included not only the higher officers, as judges, 
 sheriffs, but also those of a lower rank, as constables, 
 overseers, &c. 
 
 As to malfeasance (i). — In cases of oppression and Malfeasance. 
 partiality the officers are clearly punishable : and 
 not only when they act from corrupt motives, but even 
 when this element is wanting, if the act is clearly 
 illegal (k), for example, for a magistrate to commit in 
 a case in which he has no jurisdiction. The proceed- 
 ings will generally be by impeachment, or information 
 in the Queen's Bench, according to the rank of the 
 offender ; but an indictment will also lie. 
 
 (/) V. p. 192. 
 
 (<7) V. p. 251. 
 
 (A) 1 & 2 Vict. c. 94, s. 19. See also Evidence Amendment Act, 14 & 
 15 Vict. c. 99. For a full list of offences of the nature of forgeries of 
 records, v. Arch. 631. 
 
 (j) Bribery, v. p. 84. 
 
 (k) S. V. Sainsbury, 4 T. R. 451. 
 
96 OFFENCES AGAINST PUBLIC JUSTICE. 
 
 Extortion. Extprtion, in the more strict sense of the word, 
 
 consists in an officer's unlawfully taking, by colour of 
 his office, from any man, any money or thing of value 
 that is not due to him, or more than is due, or before 
 it is due (I). But it is not criminal to take a reward, 
 voluntarily given, and which has been usual in the 
 case, for the more diligent or more expeditious per- 
 formance of his duty. 
 
 Non-feasance. As to non-feasance. — An officer is equally liable for 
 neglect of his duty as for active misconduct. Thus an 
 -overseer is indictable for not providing for the poor (m). 
 A refusal by any person to serve an office to which he 
 has been duly appointed, and from which he has no 
 ground of exemption, is an indictable offence. 
 
 Contempt of 
 court. 
 
 CONTEMPT OF COUET. 
 
 A contempt of court is a disobedience to the rules, 
 orders, process, or dignity of a court which has power 
 to punish such offences. It is only courts of record 
 that have power to fine and imprison for contempt of 
 their authority (w). The offence is by no means con- 
 fined to what is popularly known as "contempt of 
 court " : it includes a variety of acts, some of which 
 appear to have only a remote connection with the 
 courts. 
 
 Contempts may be divided into two classes : — 
 
 1. Direct, "which openly insult or resist the powers 
 of the courts, or the persons of the judges who preside 
 there." 
 
 (0 4 Bl. 141. 
 
 (m) V. also 11 Geo. 1, c. 4. 
 
 (ra) Courts of Record are those whose judicial acts and proceedings are 
 enrolled in -parchment for a perpetual memorial and testimony; which 
 rolls are called the records of the court, and their truth cannot be ques- 
 tioned. This power to fine and imprison is one of their chief distinguishing 
 marks; and the yery erection of a new jurisdiction with power of fine and 
 imprisonment, makes it instantly a court of record, v. 3 St. Bl. 269. 
 
OFFENCES AGAINST PUBLIC JUSTICE. 97 
 
 2. Consequential, " which (without such gross inso- 
 lence or direct opposition) plainly tend to create an 
 nniyersal disregard of their authority." 
 
 They may be also thus classified : — 
 
 1. Those committed in the court itself — for example, 
 by persistently applauding during a trial, or any other 
 wilful disturbance. 
 
 2. Those committed out of court — for example, by 
 tampering with witnesses, jurors, &c. 
 
 The following are the chief instances (o) : — Chief cases of 
 
 contempts. 
 
 (a.) By inferior judges and magistrates — by acting 
 unjustly, oppressiTely, or irregularly in their admi- 
 nistration; or by disobeying writs issued out of the 
 superior courts ; by proceeding in a cause after it has 
 been put a stop to or remoyed by writ of prohibition, 
 certiorari, error, supersedeas, and the like. These are 
 regarded as contempts of the superior courts (and 
 especially the Queen's Bench Division), which have a 
 general superintendence over all inferior jurisdictions. 
 
 (b.) By sheriffs, bailiff's, gaolers, and other officers of 
 the court — by abusing the process of the law, or deceiv- 
 ing the parties by any acts of oppression, extortion, 
 collusive behaviour, or culpable neglect of duty. 
 
 (c.) By solicitors, who are also officers of the courts 
 by gross instances of fraud and corruption, injustice to 
 clients, or other dishonest practices (p). 
 
 (d.) By jurymen — in collateral matters relating to 
 the discharge of their office, as by making default when 
 summoned ; refusing to be sworn or to give any ver- 
 dict ; eating or drinking without the leave of the 
 court — especially at the cost of either party; and 
 
 (o) 2 Hawk. c. 22. 
 
 If)) As to a barrister, v. Fx parte Pater, 5 B. & .S. 'A'J'J. 
 
 H 
 
98 OFFENCES AGAINST PUBLIC JUSTICE, 
 
 other misbehaviour of a similar kind ; but not in the 
 mere exercise of their judicial capacities, as by giving 
 a false or erroneous verdict. 
 
 (e.) By witnesses — by making default when sum- 
 moned ; refusing to be sworn or examined, or prevari- 
 cating in their evidence when sworn. 
 
 (f.) By the parties to any suit or proceeding before 
 the court, who by force or fraud wilfully prevent or 
 obstruct the course of justice ; also by disobedience to 
 any rule or order, made in the progress of a cause ; by 
 non-payment of costs, or by non-observance of awards 
 which have been made rules of court. 
 
 (g.) By any persons — including a great variety of 
 acts which imply disrespect to the court's authority. 
 Any riotous, noisy, or indecent conduct in court, calcu- 
 lated to interrupt the proceedings, or to bring discredit 
 upon the court. 
 
 Contempts Of another class are those committed by the offender 
 
 of"ourL^ °"' ^°* present in court — for example, by disobeying or 
 treating with disrespect the Queen's writ, or the rules 
 or process of the court; by perverting such writ or 
 process to the purposes of private malice, extortion, or 
 injustice; by speaking or writing contemptuously of 
 the court or judges, acting in their judicial capacity ; 
 by printing false accounts of causes then depending in 
 judgment ; and by anything, in short, that demonstrates 
 a gross want of that regard and respect, which when 
 once courts of justice are deprived of, their authority 
 is entirely lost among the people (q). 
 
 Proceedings. The proceedings on a contempt of court are of two 
 kinds : — 
 
 1. If the contempt is committed in the face of the 
 court — the offender may be instantly apprehended and 
 
 (([) As to contempt in general, see Miller v. Knox, 4 Bing. N. C. 574. 
 
OFFENCES AGAINST PUBLIC JUSTICE. 99 
 
 imprisoned at the discretion of the judges, -without any- 
 further proof or examination. 
 
 2. In the case of contempts committed out of court — 
 if the judges see sufficient ground to suspect that a 
 contempt has been committed, they either make a rule 
 on the suspected party to she-w cause -why an attach- 
 ment should not issue against him ; or in very flagrant 
 cases, the attachment issues in the first instance. 
 
 H 
 
( 100 ) 
 
 CHAPTEE V. 
 
 Offences more 
 particularly 
 against the 
 public peace. 
 
 OFFENCES AGAINST THE PUBLIC PEACE. 
 
 Many of the crimes mentioned in other chapters in- 
 volve a breach of the peace. But the offences now to 
 be dealt with are those in which the breach of the 
 peace is the prominent feature. In some, for example 
 in libel, at first sight the injury done to the individual 
 appears to be the principal point ; but a consideration 
 of the way in which the law deals with the offence 
 shews that it is otherwise. Thus, proof of the truth of 
 a libel will not amount to a defence, unless it was for 
 the public benefit that the matter should be published. 
 
 Unlawful 
 assembly. 
 
 Eout. 
 
 EIOTS (f). 
 
 There are two minor offences, which, as steps to the 
 graver crime of riot, must first be noticed. 
 
 An unlawful assembly is any meeting of three or more 
 persons under such circumstances of alarm, either from 
 the large numbers, the mode or time of the assembly, 
 &c., as in the opinion of firm and rational men are 
 likely to endanger the peace ; there being no aggressive 
 act actually done (s). All parties joining in and 
 countenancing the proceedings are criminally liable. 
 It is generally considered that the intention must be 
 to do something which, if actually executed, would 
 amount to a riot if). 
 
 A rcut is said to be the disturbance of the peace 
 
 (r) For riotous destruction of churches and other buildings, t. p. 266. 
 
 (s) R. V. Vincent, 9 C. & P. 91 
 
 (i) For unlawful assemblies of another nature, v. p. 57. 
 
OFFENCES AGAINST THE PUBLIC PEACE. 101 
 
 caused by those who, after assembling together to do a 
 thing which, if executed, would amount to a riot, pro- 
 ceed to execute that act, but do not actually execute it. 
 It differs from a riot only in the circumstance that the 
 enterprise is not actually executed. 
 
 A riot is a tumultuous disturbance of the peace by Riot. 
 three or more persons, assembling together of their own 
 authority, with an intent mutually to assist one another 
 against any who oppose them in the execution of some 
 enterprise of a private nature, and afterwards actually 
 executing the same, in a violent and turbulent manner, 
 to the terror of the people, and this whether the act 
 intended be of itself lawful or unlawful (u). 
 
 An example will more clearly shew the difference 
 between these three crimes. A hundred men armed 
 with sticks meet together at night to consult about the 
 destruction of a fence which their landlord has erected : 
 this is an unlawful assembly. They march out together 
 from the place of meeting in the direction of the fence : 
 this amounts to a rout. They arrive at the fence and, 
 amid great confusion, violently pull it down : this is a 
 riot. 
 
 To constitute a riot, the object need not be unlawful, E.ssentiais of a 
 if the acts are done in a manner calculated to inspire '^"*'" 
 terror. But there must be an unlawful assembling : 
 therefore a disturbance arising among people already 
 met together will be a mere affray ; unless, indeed, 
 there be a deliberate forming into parties. The object 
 must be of a local or private nature ; otherwise, as if to 
 redress a public grievance, it amounts to treason (x). 
 
 The gist of the offence is the unlawful manner of 
 proceeding, that is, with circumstances of force or 
 
 (u) 1 Hawk. c. G5j 
 (/) V. p. 49. 
 
102 OFFENCES AGAINST THE PUBLIC PEACE. 
 
 Tiolence. Therefore assemWing for the purpose of an 
 unlawful object, and actually executing it, is not a riot, 
 if it is done peaceably (y). 
 
 These three offences are misdemeanors, punishable 
 by fine or imprisonment, or both. 
 
 Eiot Act. For the case of riots which assume a more formid- 
 
 able aspect further provision is made by statute (z). If 
 twelve or more persons are unlawfully assembled to 
 the disturbance of the peace, and being required by 
 proclamation (a), by a justice of the peace, sheriff, or 
 under-sheriff, mayor, or other head officer of a town, 
 to disperse, they then continue together for an hour 
 after, they are guilty of felony, and liable to penal 
 servitude to the extent of life, or imprisonment not 
 exceeding three years (6). It is a felony attended by 
 the same punishment to oppose the reading of the pro- 
 clamation ; and this opposition will not excuse those 
 who know that the proclamation would have been read, 
 had it not been for this hindrance (c). Prosecutions 
 under this Act must be commenced within twelve 
 months after the commission of the offence (d). 
 
 A course of proceeding founded on an old statute (e), 
 still unrepealed, is provided for offences of this character. 
 Any two justices, together with the sheriff or under- 
 sheriff of the county, may come with the posse comi- 
 tatus {i.e., a force consisting of all able-bodied men 
 except clergymen) and suppress a riot, rout, or unlaw- 
 
 (i/) V. 1 Hawk. c. 65. 
 
 (z) Riot Act, 1 Geo. 1, st. 2, c. 5. 
 
 (a) " Reading the Eiot Act." 
 
 (b) 1 Geo. t, St. 2, u. 5, b. 1. The form of proclamation is prescribed by 
 the statute, " Our sovereign lord the king chargeth and commandeth all 
 persons being assembled, immediately to disperse themselves, and peaceably 
 to depart to their habitations, or to their lawful business, upon the pains 
 contained in the Act made in the first year of King George, for preventing 
 tumults and riotous assemblies — God save the King." 
 
 (o) Ibid. 5. 5. 
 Id) Ibid. b. 8. 
 (e) 13 Hen. 4, u. 7. 
 
 coTnitatus. 
 
OFFENCES AGAINST THE PUBLIC PEACE. 103 
 
 ful assembly; may arrest the rioters; and make a 
 record of the circumstances on the spot, which will be 
 sufficient evidence of the conviction of the offenders. 
 Any battery, wounding, or killing that may happen in 
 suppressing the riot is justifiable. 
 
 AFFEAT. 
 
 A fighting between two or more persons in some Affray. 
 fulMo place, to the terror of Her Majesty's subjects ; 
 for example, a prize fight. If it takes place in private, 
 it will be an assault. It differs from a riot, inasmuch 
 as there must be three persons to constitute the latter, 
 and also in not being premeditated. 
 
 Mere quarrelsome or threatening words do not 
 amount to an affray; though of course, according to 
 first principles (/), a person may be guilty of an affray, 
 though he uses no actual force himself; for example, 
 by assisting at a prize fight. The offence may be aggra- Aggravations. 
 vated in several ways ; for example, on account of its 
 dangerous tendency, e.g., a duel ; on account of the 
 position of the person against whom it is committed, 
 e.g., an arresting officer ; on account of the place where 
 it happens, e.g., in a church or churchyard. In the last 
 case even quarrelsome words are punishable. 
 
 An affray may be suppressed and the parties sepa- Suppression 
 rated by a private person who is present; and of ^"'^ P"°'^''" 
 course a peace officer is bound to interfere. The 
 offence is a misdemeanor, punishable by fine or im- 
 prisonment, or both. 
 
 CHALLENGE TO FIGHT. 
 
 To challenge to fight, either by word or letter ; or challenge to 
 (b) to be the bearer of such challenge ; or (c) to pro- ''§''*■ 
 
 (/) ,. p, 33. 
 
104 
 
 OFFENCES AGAINST THE PUBLIC PEACE. 
 
 voke another to send a challenge, is a misdemeanor 
 punishable by fine or imprisonment, or both It is not 
 necessary that actual fighting should follow. Provoca- 
 tion, however great, is no justification {g), though it 
 may mitigate the sentence of the court. 
 
 Threatening 
 letters. 
 
 E-xtoi'tiun by 
 means of 
 threats. 
 
 SENDING THREATENING LETTERS. 
 
 It is very obvious that the receipt of- a threatening 
 letter is not unlikely to lead to a breach of the peace 
 on the part of the receiver. Therefore to prevent such 
 breach, and at the same time to punish what is an 
 ofi'ence against the security of the subject, it has been 
 provided that, if any person, knowing the contents, 
 sends or delivers any letter or writing threatening to 
 burn or destroy any house, barn, or other building, or 
 grain or other agricultural produce in a building, or 
 any ship ; or to kill, maim, or wound any. cattle, he is 
 guilty of felony, and may be punished by penal servi- 
 tude to the extent of ten years Qi). The same conse- 
 quences are attached to sending letters threatening to 
 murder («). 
 
 J It will be convenient to notice here certain other cases 
 of sending threatening letters, though their nature 
 admits also of their being treated of under the title 
 "Larceny." If any person, knowing the contents, sends 
 or delivers any letter or writing, demanding with menaces 
 and without reasonable cause any chattels, money, or 
 other property, he is punishable for the felony by penal 
 servitude to the extent of life (/«). If the threaten- 
 ing be otherwise than by letter, the limit of the penal 
 servitude is five years (l). Sending a letter or writing 
 containing to the knowledge of the sender accusations 
 or threats to accuse any person of a crime punishable by 
 
 ((/) E. V. Sice, 3 East, 581. 
 (A) 24 & 25 Vict. c. 97, =. 50. 
 (j) Ibid. c. 100, s. 16. 
 (*) Ibid. c. 96, s. 44. 
 (0 Ibid. ». 45. 
 
OFl'BNOES AGAINST THE PUBLIC PEACE. 105 
 
 law with death or penal servitude for not less than 
 seren years, or of an assault with intent to commit 
 a rape, or of an attempt to commit a rape or an 
 unnatural crime — is a felony punishable by penal 
 servitude to the extent of life (m). The punishment is 
 the same though the threat to accuse of any of these 
 crimes be not by letter (n). It is immaterial whether 
 the person threatened be innocent or guilty of the 
 offence imputed to him (o), inasmuch as the gist of the 
 offence is the extortion. The same punishment is 
 awarded in the case of one inducing another by 
 violence or threats to execute a deed, &c., with intent 
 to defraud (jp). 
 
 LIBEL AND INDICTABLE SLANDER. 
 
 Offences of this class are rightly considered as 
 affecting the public peace, inasmuch as their tendency 
 is directly to provoke breaches of the peace. This will 
 appear from the definition of a libel. 
 
 A libel is a malicious defamation made public either Definition of 
 by printing, writing, signs, pictures, or the like, tend- ' '^ ■ 
 ing either to blacken the memory of one who is dead, 
 or the reputation of one who is alive, by exposing 
 him (or his memory) to public hatred, contempt, or 
 ridicule (q). 
 
 To those who are aggrieved by a libel two courses 
 are open, either to prosecute the offender criminally by 
 
 (m) 24 & 25 Vict. c. 96, ». 46. 
 
 In) Ibid. 3. 47. 
 
 (o) S. r. Gardner, ) C. & P. 479. 
 
 Ip) 24 & 25 Vict. c. 96, s. 48. 
 
 (q) V. 1 Hawk. u. 73, This definition refers only to private libels, and 
 not to those, already noticed, of a seditious, blasphemous, or indecent 
 nature (v. pp. 55, 71). But in all cases of libel the ground of criminal 
 proceedings is the same, namely, "the public mischief which libels are 
 calculated to create, in alienating the minds of the people from religion 
 and good morals, rendering them hostile to the government and magistracy 
 of the country, and where particular individuals are attacked, in causing 
 such irritation in their minds as may induce them to commit a breach of 
 the peace." 1 Russ. 321. 
 
106 
 
 OFFENCES AGAINST THE PUBLIC PEACE. 
 
 Civil and 
 criminal pro- 
 ceedings in 
 libel. 
 
 indictmeiit or information, or to seek redress by a civil 
 action. This is the general rule, but there are cases 
 where the injured party has a remedy by action, though 
 the wrongdoer is not criminally punishable. The 
 principle is that whenever an action will lie for a libel 
 without shewing special damage (in other words, where 
 the particular injury to the individual is not the 
 prominent feature, but the incitement to a breach of 
 the peace is) an indictment will also lie. While, on 
 the one hand, there are cases (the gist of which is the 
 loss to the person libelled and not the public offence) 
 which are the subject of civil but not of criminal 
 proceedings ; on the other hand, sometimes a person is 
 criminally, though not civilly, liable for what he has 
 written. This is frequently the case when the matter 
 of the libel is true. It is a clearly established rule, 
 that in a civil action the truth of the matter is a good 
 defence ; whereas in a criminal proceeding it does not 
 amount to a defence unless it be proved that it was 
 for the public benefit that the matter should be pub- 
 lished. The gist of the crime is the provocation to 
 a breach of the peace by exciting feelings of revenge, 
 &c. And the libel is not divested of this character- 
 istic on account of its being founded on truth. How- 
 ever, even in a criminal proceeding, the truth may be 
 inquired into, and the court in pronouncing sentence 
 may consider whether the guilt of the defendant is 
 aggravated or mitigated by the plea and evidence of 
 the truth (r). 
 
 When an in- 
 dictment will 
 lie. 
 
 We have just remarked that whenever an action 
 will lie for a libel without laying special damage, an 
 indictment will also lie. We may add that whenever 
 an action will lie for verbal slander without laying 
 special damage, an indictment will lie for the same 
 words if reduced to writing and published. Thus, to 
 see what writings are indictable, we may first enumerate 
 
 (r) 6 & 7 Vict. c. 96, s. 6. 
 
OFFENCES AGAINST THE PUBLIC PEACE. 107 
 
 the cases in which an action will lie without laying 
 special damage (s) : — 
 
 i. For all words spoken of another which impute to 
 him the commission of a crime punishable by law. 
 
 ii. For all words spoken of another which may have 
 the effect of excluding him from society ; for example, 
 to say that he has the leprosy. 
 
 iii. For writing and publishing anything which 
 renders another ridiculous or contemptible. But this 
 must be taken with a certain amount of qualification ; 
 for a person will not be indictable for a literary criti- 
 cism, though it makes the author appear ridiculous, 
 if it does not exceed the limits of a fair and candid 
 criticism by attacking the personal character of the 
 author (f). 
 
 It. For words used of a man which may impair or 
 hurt his trade or livelihood; for example, to call a 
 physician a quack. 
 
 Certain other writings are libellous. Such are those 
 which vilify the character of deceased persons, if the 
 intention has been to bring contempt on the families, 
 or to stir up hatred against them, or to excite them 
 to a breach of the peace (m). So also writings tend- 
 ing to defame persons of position in foreign countries. 
 Writings, though they do not reflect on the character 
 of any particular individual, as, for example, on bodies 
 of men, may be libellous if they tend to a breach of 
 the peace, or to stir up hatred towards a class gene- 
 rally (x). 
 
 There are certain exemptions from the criminal lia- when an in- 
 
 I dictmenf 
 not lie. 
 
 bility which attaches to matter which is prima facie ^"^'"'^n' ^^'" 
 
 libellous. We have already seen that a fair literary 
 
 (s) Arch. 897. 
 
 (0 Macleod v. WaMey,-^ C. & P. 311. 
 
 (m) R. 7. Topham, i T. R. 126. 
 
 Ix) R. T. Osborn, 1 Barn. K. B. 138, 166. 
 
108 
 
 OFFENCES AGAINST THE PUBLIC PEACE. 
 
 Privileged 
 communica- 
 tions. 
 
 criticism, however iincompliineiitary and unpalatable, 
 is not a libel. Confidential communications are also 
 in some cases privileged ; for example, by or to those 
 occupying fiduciary positions, as vyhere the defendant 
 vrrote to the employees of the plaintiff to inform them 
 of the malpractices of the latter (2/), or when a master 
 gives what he believes to be a correct character of his 
 servant (z). Communications made hona fide, with a 
 view of investigating a fact, though injurious to a 
 person's character, are not libellous; for example, an 
 advertisement to ascertain whether the plaintiff had 
 another wife living (a). The meaning in law of a 
 privileged communication is, a communication made on 
 such an occasion as rebuts the prima facie inference of 
 malice arising from the publication of matter preju- 
 dicial to the character of the plaintiff. But he may 
 answer by proving malice in fact (h). 
 
 Indictable 
 slander. 
 
 It constitutes a more serious offence to embody the 
 objectionable matter in writing, than merely to give 
 verbal utterance to it. So that an indictment (so 
 also an action) may be maintained for words written, 
 for which an indictment could not be maintained if 
 they were merely spoken ; for example, to write that 
 a man is a swindler (c). It may be stated generally 
 on the subject of indictable slander (d), that no words 
 spoken, however scurrilous, even though spoken per- 
 sonally to an individual, are the subject of indictment 
 unless they directly tend to a breach of the peace ; for 
 example, by inciting to a challenge. We must here 
 except words seditious, blasphemous, grossly immoral, 
 or uttered to a magistrate while in the execution of his 
 duty. 
 
 (i/) Cleaver v. Senande, 1 Camp. 268, n. 
 (z) Edmonson v. Stevenson, Bull. N. P. 8. 
 (a) Delaney v. Jones, 4 Esp. 191. 
 (6) Wright v. Woodgate, 2 C. M. & R. 573. 
 
 (c) r Anson V. Stuart, 1 T. E. 748. 
 
 (d) " Libel " is the term applied to words written, 
 merely spoken. 
 
 ' Slander " to those 
 
OFFENCES AGAINST THE PUBLIC PEACE. 109 
 
 As to the form in which the libel is expressed, of Form of a 
 course it will be none the less an offence because ''''*'^' 
 the libellous imputation is conveyed indirectly ; for 
 example, by a hint, question, exclamation, irony, &c. 
 And a mere subterfuge, as by writing only a letter or 
 two of the name, will not avail if there be satisfactory 
 evidence of what person is meant. The words used are 
 to be taken in the sense ordinarily understood. Where 
 the libellous signification of the words does not appear 
 on the face of the libel, innuendoes are inserted in the 
 indictment, and proved by the evidence shewing the 
 intended application of the words. 
 
 As to the publication, or making public of the libel. Publication. 
 To make a writing a libel it must be published : for 
 the mere writing or composing of a defamatory paper 
 which is never read or divulged to others, or which is 
 delivered simply by mistake, will not amount to a libel. 
 But, on the other hand, a slight circumstance will be 
 sufficient to constitute a publication. Thus communi- 
 cation, though only to a single person, is a publication ; 
 and though it be contained in a private letter. We 
 have only to recur to the gist of the offence to under- 
 stand the reason of this ; for in each case the act tends 
 to a breach of the peace. 
 
 The mere publication of matter which on the face of Criminal 
 it is libellous is presumptive evidence of the malice '°'^°''°°- 
 which is necessary to constitute a crime ; and therefore 
 the proof of innocence of intention lies on the defendant. 
 But if the writing is prima faeie innocent, malice may 
 be proved from special circumstances which may be 
 laid before the jury. 
 
 The facts to be established by the prosecution are : — 
 (a.) The making and publishing of the writing, 
 (b.) That the writing is libellous in its nature. 
 
110 OFFENCES AGAINST THE PUBLIC PEACE. 
 
 Fox's Act. For a long period it was maintained by the judges 
 
 and others that it was the province of the jury to deal 
 with the first of these questions only, and that the 
 second was to be determined by the court. But the 
 controversy was settled by Fox's Act (e), which declared 
 and enacted that it was for the jury to determine both 
 questions. So that the jury now give a verdict of Guilty 
 and Not Guilty on the whole matter in issue, and are 
 not, as formerly, directed by the court to find the 
 defendant guilty if they are satisfied that the writing 
 was published and bore the meaning ascribed to it in 
 the indictment (/). But of course the court may state 
 its opinion to the jury, though they are not bound to 
 act upon it. 
 
 Who are' Everyone who is concerned in the writing or pub- 
 
 respons'bL listiing IS Hable to conviction for the libel. This 
 doctrine has been carried to an absurd extent; so 
 much so that it was held that a mere servant of the 
 printer of a libel, who clapped down the press, was 
 punishable, though it did not at all clearly appear that 
 he knew the import of the paper, or that he was con- 
 scious he was doing anything illegal {g). But this 
 rule has been doubted, though it shews that the court 
 is prepared to go a long way. 
 
 The proprietor of a newspaper, or other principal, 
 is answerable criminally as well as civilly for the acts 
 of his servant in the publication of a libel (A). It 
 would be exceedingly dangerous to hold otherwise ; for 
 then an irresponsible person might be put forward, 
 and the person really producing the publication, and 
 without whom it could not be published, might re- 
 
 (c) 32 Geo. 3. c. 60. 
 
 (/) As the law is now administered, it is a system of ex post facto legis- 
 lation, applied by the jury to each particular case. A libel considered as 
 a crime has been well described as anything for having written which a 
 jury thinks a man ought to be punished. Fitz. St. 147. 
 
 {g) B. T. Clark, 1 Barn K. B. 304. 
 
 (A) E. V. Mmond, 5 Burr. 2686. 
 
OFFENCES AGAINST THE PUBLIC PEACE. Ill 
 
 main behind and escape altogether (i). However, it is 
 now provided that the defendant, principal or agent, 
 may prove that the publication was made without his 
 authority, consent, or knowledge, and that the said 
 publication did not arise from want of due care or 
 caution on his part (Jc). Though the statute does not 
 expressly say whether this is a complete defence, or 
 only serves to mitigate punishment, it seems that it 
 will completely rebut the jarimd facie presumption of 
 publication. 
 
 Libel is a misdemeanor, punishable in the case of Punishment. 
 one who publishes a defamatory libel, knowing it to be 
 false, by imprisonment not exceeding two years, and 
 fine (T). But if the prosecution do not prove that 
 the defendant knew it to be false, the punishment is 
 fine or imprisonment not exceeding one year, or 
 both (m). 
 
 In case of private prosecutions, if judgment is given Costs. 
 for the defendant, he is entitled to recover his costs from 
 the prosecutor. And if the defendant has pleaded a 
 justification of the libel (on the ground of truth, &c.), 
 and so has put the prosecutor to extra expense, on 
 his (the defendant) failing to establish his plea, the 
 prosecutor can recover from him the cost occasioned by 
 such plea (n). 
 
 An ofi'ence which may be regarded as a particular Hanging, &c., 
 form of libel is punishable in the same way, namely, ™ ^^^y- 
 hanging a person in effigy. The object is to bring 
 contempt upon, or excite indignation against, an indi- 
 vidual, and so to incite to a breach of the peace. 
 
 Another ofi'ence connected with libel may be noticed : 
 
 (0 Per Tenterden, C.J., R v. Gutch, Moo. & M. 433. 
 (A) 6 & 7 Vict. 0. 96, s. 7. 
 (0 Ibid. =. 4. 
 (m) Ibid. s. 5. 
 (n) Ibid. s. 8. 
 
112 OFFENCES AGAINST THE PUBLIC PEACE. 
 
 Publishing, or threatening to publish, or proposing 
 to abstain or prevent from publishing, a libel in order 
 to extort money or some other valuable thing, is a 
 misdemeanor punishable by imprisonment not exceeding 
 three years (o). 
 
 FORCIBLE ENTEY OE DETAINEE. 
 
 Forcible entry The violcut taking, or, after unlawful taking, the 
 or detainer. violent keeping possession of lands and tenements with 
 menaces, force, and arms, and without the authority of 
 the law. It is no defence to a charge of forcible entry 
 that the accused has been unjustly turned out of pos- 
 session (p), inasmuch as he has his remedy at law, and 
 the fact of his right does not diminish the breach of 
 the peace. If there be not employed such force as is 
 calculated to prevent resistance, it is a mere tres- 
 pass (q). 
 
 The offence is a misdemeanor, punishable by fine and 
 imprisonment. The court may summarily restore 
 possession to the person entitled, by a writ of resti- 
 tution (r). 
 
 Other offences Blackstonc notices certain other offences which are 
 i'face!' *' punishable by fine and imprisonment as misdemeanors 
 against the peace : Eiding or going armed with dan- 
 gerous or unusual weapons — spreading false news — 
 false and pretended prophecies, with intent to disturb 
 the peace. 
 
 (o) 6 & 7 Vict. u. 96, s. 3. 
 (p) 5 Rich. 2, c. 8. 
 (g) S. T. Smyth, 5 C. & P. 201. 
 (»•) V. 21 Jac. 1, u. 15. 
 
( 113 ) 
 
 CHAPTER VI. 
 
 OFFENCES AGAINST PUBLIC TRADE. 
 
 It is in subjects treated of in this chapter, perhaps, Nature of 
 
 that there is found the chief ground for the distinction tfade.''^^^'"'' 
 
 between mala in se and mala quia prohibita. Certain of 
 
 the offences, free from any tinge of immorality, appear 
 
 in the category of crimes only inasmuch as they have 
 
 been forbidden by human laws. But, of course, in any 
 
 case, an act is punishable by the law only in virtue of 
 
 its being a breach of that law, and not on account of its 
 
 moral quality. 
 
 SMUGGLING. 
 
 Smuggling is the importing or exporting either Definition of 
 
 (a) goods without paying the legal duties thereon ; or ^"""Sg''"?- 
 
 (b) prohibited goods. The existing law on the subject 
 is contained chiefly in the Customs Consolidation Act, 
 1853 (s). 
 
 The statute subjects to forfeiture the goods which Forfeiture, &o. 
 have in any way been the subjects of smuggling prac- 
 tices (i). It also imposes certain pecuniary penalties (m), 
 and renders liable to imprisonment for specified periods, 
 on summary conviction before a justice, every person 
 found on board a ship liable to forfeiture by any Act 
 relating to the customs (v). The following offences are 
 declared felonies : — 
 
 (a.) Being armed and assembled, to the number of 
 
 (s) 16 & 17 Vict. c. 107. 
 (0 Ibid. s. 209. 
 («) Ibid. s. 232. 
 (») Ibid. s. 235. 
 
114 OrFENOES AGAINST PUBLIC TEADE. 
 
 Acts of three or more, for the purpose of aiding in the illegal 
 
 smuggling landing, running, or carrying away of prohihited goods, 
 
 Mllr or goods liable to duties not paid or secured; or m 
 
 rescuing such goods after seizure; or m rescuing a 
 
 person apprehended for a felony against the customs.; 
 
 or in preventing the apprehension of such person (x). 
 
 (b.) Shooting at vessels belonging to the navy or 
 revenue service within a hundred leagues of any part 
 of the United Kingdom, or shooting at or vyounding an 
 officer engaged in the prevention of smuggling (y). 
 
 The punishment for these felonies is penal servitude 
 from fifteen years to life, or imprisonment not exceed- 
 ing three years. 
 
 (c.) Being found in company with more than four 
 others, with prohibited goods ; or in company with one 
 other person, within five miles of the sea coast or of 
 any navigable river, carrying offensive arms, or dis- 
 guised in any way — is punishable by penal servitude to 
 the extent of seven years (2). 
 
 Misdemeanors. The foUowing ofienccs are misdemeanors : — 
 
 (a.) Assaulting or opposing an officer engaged in 
 the prevention of smuggling in the execution of his 
 duty, is punishable by penal servitude to the extent of 
 seven years (a). 
 
 (b.) Making signals, under certain circumstances, to 
 smuggling vessels, is punishable by fine of £100, or 
 imprisonment not exceeding one year (b). 
 
 Proceedings. AH proceedings for offences against Acts relating to 
 the customs must be commenced within three years 
 after the date of the offence (e). 
 
 (a) 16 & 17 Vict. 0. 107, ». 248. 
 
 (y) Ibid. ». 249. 
 
 (z) Ibid. s. 250. 
 
 (a) Ibid. s. 251. 
 
 (6) Ibid. s. 244. 
 
 (c) Ibid. s. 303. 
 
OFrBNOES AGAINST PUBLIC TBADE. 115 
 
 The Act also contains provisions for facilitating the 
 discovery of smuggled goods by searching suspected 
 ships, carts, houses, &c. ; it being lawful for the revenue 
 authorities to fire on a ship which, when chased, does 
 not bring to {d). 
 
 OFFENCES AGAINST THE BANKRUPT LAWS. 
 
 The Debtors Act, 1869 (e), enumerates several acts Offences by 
 which, if done by persons adjudged bankrupt, or whose '>^°''™P'^' *•=■ 
 afi'airs are liquidated by arrangement, are misdemeanors 
 punishable by imprisonment not exceeding two years. 
 The following acts, if done fraudulently, are the 
 chief (/):- 
 
 i. Not to best of belief making full discovery of his 
 estate to the administering trustee. 
 
 ii. Neglecting to deliver up property under his 
 control. 
 
 iii. Neglecting to deliver up books, papers, &c., re- 
 lating to his property. 
 
 iv. Within four months before commencement of 
 bankruptcy or liquidation, or thereafter, concealing 
 property to the value of £10. 
 
 V. Wiihin the same time, or thereafter, removing 
 property to the value of £10. 
 
 vi. Making material omissions in statements relating 
 to his affairs. 
 
 vii. Failing for a month to inform the trustee of any 
 false debt which he knows to have been proved. 
 
 viii. After the commencement of bankruptcy or liqui- 
 dation proceedings preventing the production of papers, 
 
 (d) 16 & 17 Vict. c. 107, ss. 218-223. 
 
 (e) 32 & 33 Vict. c. 62. 
 (/) Ibid. ». 11. 
 
 I 2 
 
116 OFFENCES AGAINST PUBLIC TKADE. 
 
 &c., relating to his affairs, with intent to conceal the 
 state of his affairs, or to defeat the law. 
 
 ix. After such commencement, or within four months 
 before, destroying, falsifying, &c., such documents. 
 
 X. Within the same limits of time making false 
 entries in such documents, &c. 
 
 xi. Within the same limits parting with, altering; or 
 making omissions in such documents. 
 
 xii. Within the same limits attempting to account 
 for any part of his property by fictitious losses or 
 expenses. 
 
 xiii. Within four months before the commencement 
 of proceedings obtaining, by false representation or 
 other fraud, any property on credit without paying 
 for it. 
 
 xiT. Within the same time, as a trader, so obtaining 
 property on credit under the false pretence of carrying 
 on his business. 
 
 XT. Within the same time pawning or disposing of, 
 otherwise than in the ordinary way of trade, property 
 obtained on credit and not paid for. 
 
 xvi. Any false representation or other fraud in order 
 to obtain the consent of any of his creditors to an agree- 
 ment with reference to his affairs, or his bankruptcy or 
 liquidation. 
 
 Abscouding, One offencc is a felony, punishable by imprison- 
 &o., a felony, ment not exceeding two years, namely, after the com- 
 mencement of bankruptcy or liquidation, or within four 
 months before, fraudulently absconding or attempting 
 to abscond from England with property of his own to 
 the value of £20 (p). 
 
 (g) 32 & 33 Vict. c. 62, ». 12. 
 
OFFENCES AGAINST PUBLIC TBADE. 117 
 
 Certain other offences are misdemeanors, punishable Offences tend- 
 by imprisonment not exceeding one year : — creditors 
 
 For any person — 
 
 i. In incurring a debt or liability, to obtain credit 
 under false pretences, or by means of any other fraud. 
 
 ii. With intent to defraud any creditor, to make 
 any gift, delivery or transfer of, or any charge on his 
 property. 
 
 iii. With like intent to conceal or remove any part of 
 his property since or within tvyo months before the date 
 of any unsatisfied judgment or order for money obtained 
 against him (%). 
 
 It is also a misdemeanor, punishable in the same way, 
 for a creditor wilfully and fraudulently to make a false 
 claim («). 
 
 All these misdemeanors fall within the provisions of 
 the Vexatious Indictments Act (k). 
 
 Any court exercising jurisdiction in bankruptcy, on Prosecution 
 receiving the opinion of a trustee that the bankrupt has tjjg^j^urt^ 
 been guilty of an offence under the Act (the Debtors 
 Act, 1869), or on the representation of a creditor or 
 member of the committee of inspection that there is 
 reasonable ground to believe him so guilty, shall, if 
 there is reasonable probability of the bankrupt being 
 convicted, order the trustee to prosecute (I). 
 
 It may not be out of place to mention the cases in Arrest of a 
 which a debtor may be arrested. The court may order ^ '*"' 
 such arrest, and the seizure of any books, papers, moneys, 
 
 (Ji) 32 & 33 Vict. c. 62, ». 13. 
 (0 Ibid. ». 14. 
 (/e) Ibid. b. 18, T. p. 344. 
 (0 Ibid. s. 16. 
 
118 OFFENCES AGAINST PUBLIC TEADB. 
 
 goods, and chattels in his possession under the follow- 
 ing circumstances : — 
 
 i. If, after petition of bankruptcy, there is probable 
 reason to belieye that he is about to go abroad, or quit 
 his residence, with a view to avoid service of the peti- 
 tion or otherwise to delay proceedings ; 
 
 ii. Or that he is about to remove or conceal his 
 goods. 
 
 iii. If, after adjudication in bankruptcy, he removes 
 goods above the value of £5, or fails to attend any 
 examination ordered by the court (m). 
 
 And now, even before a petition of bankruptcy has 
 been presented, as soon as a debtor's summons has 
 been served he may be arrested if he is about to go 
 abroad so as to avoid payment, or avoid proceedings (re). 
 
 COUNTBKFEITINa TKADE-MABKS. 
 
 Offences This subject seems peculiarly to fall within a chapter 
 
 trade-matks dealing with offences against trade, though it would 
 
 also find a place under the heading " Forgery." The 
 
 law as to offences relating to trade-marks is contained 
 
 in the Merchandise Marks Act, 1862-(o). 
 
 Forging (additions to, and alterations of trade-marks, 
 with intent to defraud, a*s well as fresh fabrications, 
 being deemed forgeries) (p) a trade-mark, or falsely 
 applying any trade-mark with intent to defraud (^), 
 or (ii), with like intent, applying a forged trade-mark 
 to any bottle, case, wrapper, ticket, &c., in which any 
 article is intended to be sold (r), is a misdemeanor, 
 
 (m) 32 & 33 Vict. u. 71, s. 86. 
 (n) 33 & 34 Vict. u. 76. 
 (o) 25 & 26 Vict. u. 88. 
 Ip) Ibid. s. 5. 
 (<?) Ibid. =. 2. 
 (»■) Ibid. ». .3. 
 
OFFENCES AGAINST PUBLIC TEADE, 119 
 
 punishable by imprisonment not exceeding two years, 
 or by fine, or both (s). 
 
 The articles to which the trade-mark is applied, and 
 the instruments by which applied, are to be forfeited. 
 No proceedings are to be taken after three years from 
 the offence, or one from the first discovery (i). 
 
 Selling goods haying forged trade-marks thereon, 
 knowing them to be forged, is an offence punished by a 
 pecuniary penalty (m). 
 
 Other offences against trade, e.y., False Pretences, 
 Embezzlement, Cheating, &c., may more conyeniently 
 be treated of under the title " Offences against Pro- 
 perty." One class only of offences remains to be noticed 
 here, and that a somewhat complex and comprehensive 
 one. 
 
 UNLAWFUL INTEBFEBENCE WITH TEADE BY COMBINA- 
 TIONS, &C, 
 
 It is perfectly legal for workmen to protect their Eight of com- 
 interests by meeting or combining together, or forming ^inatiop, how 
 unions, in order to determine and stipulate with their exercised. 
 employers the terms on which only they will consent 
 to work for them. But this right to combine must not 
 be allowed to interfere with the right of those work- 
 men who desire to keep aloof from the combination, to 
 dispose of their labour with perfect freedom as they 
 think fit (x). Nor must it interfere with the right of 
 
 (s) 25 & 26 Vict. c. 88, s. 14. 
 
 (0 Ibid, s. 18. 
 
 («) Ibid. s. 4. 
 ■ (») " The workmen who think it for their advantage to combine together 
 in the disposal of their labour are no more justified in constraining any 
 other workman, who does not desire such association, to combine with 
 them — to bring his labour into common stock, as it were, with theirs — 
 than an association of capitalists in constraining an individual capitalist 
 to bring his capital into common stock with theirs." — Eeport of the Roy. 
 Com. on Labour Laws, 1867. 
 
120 OFFENCES AGAINST PUBLIC TEADE. 
 
 the masters to have their contracts duly carried out. 
 Infraction of such rights will bring the wrongdoer 
 within the pale of the criminal law of conspiracy. 
 
 The law on this subject is principally contained in 
 the Conspiracy and Protection of Property Act, 1875 (y). 
 It will be well to prefix a proTision of the Trades Union 
 Act, 1871 («). The purposes of any trade union shall 
 not, by reason merely that they are in restraint of 
 trade, be deemed to be unlawful so as to render any 
 member of such trade union liable to criminal prosecu- 
 tion for conspiracy or otherwise. 
 
 Acts of unlaw- The following acts are forbidden, and are punishable, 
 ence"which'are ^^ Summary couvictiou or indictment, by imprisonment 
 punishable. not exceeding three months, or penalty not exceeding 
 £20. 
 
 i. For any (a) person, with a view to compel any 
 other person to abstain from doing or to do any act 
 which such other person has a legal right to do or 
 abstain from doing — to wrongfully and without autho- 
 rity 
 
 (a.) Use violence to, or intimidate, such other person, 
 or his wife, or children, or injure his property. 
 
 (b.) Persistently follow him about from place to 
 place. 
 
 (c.) Hide his tools, clothes, or other property, or 
 hinder him in the use thereof. 
 
 (d.) Watch or beset his house, or other place where 
 he resides, or works, or carries on business, 
 or happens to be, or the approach thereto 
 (commonly tnown as " picketing "), but not if 
 
 (J/) 38 & 39 Vict. c. 86, repealing 34 & 35 Vict. c. 32 and other Acts. 
 
 («) 34 & 85 Vict. c. 31, s. 2. 
 
 (a) This word makes the law of general application, and not restricted 
 to trade disputes, though, of course, practically the oafence will most 
 frequently occur in connection therewith. 
 
OITENCBS AGAINST 'public TKADE. 121 
 
 the object be merely to obtain or commtinicate 
 information. 
 
 (e.) Follow him, with two or more other persons 
 in a disorderly manner in or through any street 
 or road (b). 
 
 ii. For a person employed by the municipal autho- Acts causing 
 rities, public companies, contractors, or others who f^^^'^^^°J ^"'' 
 have undertaken to supply gas or water, either alone or 
 with others, wilfully and maliciously to break his con- 
 tract of service, knowing or having reasonable cause to 
 believe that the probable consequence will be to deprive 
 the inhabitants wholly or to a great extent of gas or 
 water (e). 
 
 iii. For a person wilfully and maliciously to break Acts endanger- 
 his contract of service, knowing or having reason to '°^ ' "' "' 
 believe that the probable consequence will be to 
 endanger human life, or cause serious bodily injury, 
 or expose valuable property to destruction or serious 
 injury (d). 
 
 An exceptional course in criminal procedure is Procedure. 
 allowed in the case of the last two offences, namely, 
 that on the hearing of an indictment or information 
 for such offences, the respective parties to the contract 
 of service, their husbands or wives, are considered 
 competent witnesses (e). There is also another pecu- 
 liarity with regard to the proceedings. Power is given 
 to the offender to elect to have the case tried on in- 
 dictment, and not by a court of summary jurisdic- 
 tion (/). 
 
 (6) 38 & 39 Vict. u. 86, s. 7. 
 
 (c) Ibid. s. 4. 
 
 (d) Ibid. s. 5. 
 
 (e) Ibid. s. 11. For another instance of this innovation, v. p. 139. 
 
 (/) Ibid. s.-^9. " Making the fact of whether a particular offence is 
 indictable or not depend on the will of the accused person, is a novelty 
 in our jurisprudence, and, to say the least, productive of considerable 
 practical inconvenience." — Davis' Labour Laws, p. 99. 
 
122 OFFENCES AGAINST PUBLIC TRADE. 
 
 Trade disputes Trade disputes now form an exception to the general 
 and conspiracy, jg^.^ q£ conspiracy in one point. If, in connection with 
 such dispute, two or more combine to do something 
 which if done by one person is not punishable as a 
 crime, they will not, on account of their number, be 
 indictable for the conspiracy at common law (gi). 
 
 Obstructing It may be mentioned that assaults with intent to 
 ^a^ie of grain, o]bstruct the sale of grain, or its free passage, or with 
 force hindering any seaman, keelman, or caster from 
 working at his lawful occupation, or beating or using 
 violence with such intent, is punishable, on summary 
 conviction, by imprisonment not exceeding three 
 months (h). 
 
 (g) 38 & 39 Vict. u. 86, s. 3. 
 
 (A) 24 & 25 Vict. c. 100, ss. 39, 40. 
 
( 123 ) 
 
 CHAPTEE VII. 
 
 CONSPIEAOY. 
 
 OoNSPiEACY is a combination of two or more persons to Definition of 
 do an unlawful act, wtether that act be the final object conspiracy. 
 of the combination, or only a means to the final end, — • 
 and whether that act be a crime, or an act hurtful to 
 the public, a class of persons, or an indiyidual. 
 
 The gist of the offence is the comhination (i). Of The agreement 
 this offence a single person cannot be convicted, unless, the™"^ 'of th™ 
 indeed, he is indicted with others, who may, however, be offence. 
 dead or unknown to the jurors (j). And, on the same 
 ground, man and wife cannot by themselves be con- 
 victed, for they are one person. Many acts, innocent 
 if done by one person, become criminal if they are the 
 result of agreement by two or more persons. Thus A. 
 and B. each commit adultery under the same circum- 
 stances, the most aggravated and cruel. B.'s conduct 
 differs from A.'s only in the fact that he gets C. to lend 
 him a carriage for the purpose of elopement. A. is 
 not, B. is, within the grasp of the criminal law (k). We 
 have just remarked that the gist of the offence is 
 the agreement. A mere intention will not suffice to 
 
 (i) The law of conspiracy is the most complete illustration of the fiction 
 consisting in treating as a crime not the very acts which are intended to 
 be punished, but certain ways of doing them. — Fitz, St. 62. 
 
 0) 1 Hawk. c. 72. s. 8. 
 
 (A) "It is not apparent, at first sight, why conspiracy, which is one 
 out of many possible aggravations of an act, should have been selected as 
 
 the one by which its criminal character should be determined The 
 
 probable explanation is, that in early times the most prominent conspiracies 
 were usually attended with great violence, and that, in defining the crime, 
 words were used which included offences of much less importance than 
 those which were originally contemplated." — Fitz. St. 62. 
 
124 
 
 CONSPIBACY. 
 
 constitute the crime (Z). But if the agreement (the 
 conspiracy itself) can be proved, there is no need to 
 prove that anything has been done in pursuance of it. 
 Of course, the existence of the unlawful agreement is 
 generally evidenced by some overt acts, but these are 
 evidence merely, and not material if the agreement can 
 be proved otherwise (m). 
 
 Indefinite 
 nature of the 
 crime. 
 
 Conspiracies 
 classified 
 according to 
 their objects. 
 
 The definition shews a conspiracy to be an agree- 
 ment to do an unlawful act. It is the indefinite mean- 
 ing of this word " unlawful" that gives to the crime of 
 conspiracy its wide extent. The widest discretion is 
 intrusted to the judges, in whose power it seems to be 
 thus to declare criminal combinations to do almost any- 
 thing which they regard as morally wrong, politically 
 or socially dangerous, or otherwise objectionable (w). 
 Three classes of conspiracy may be distinguished (o) : — 
 
 1. When the end to be accomplished would be a 
 crime in each of the conspiring parties ; in other words, 
 a conspiracy to commit a crime. The case of murder is 
 specially provided for by statute; the person con- 
 spiring being liable to penal servitude to the extent of 
 ten years (p). 
 
 2. When the ultimate purpose of the conspiracy is 
 lawful, but the means to be resorted to are criminal, or 
 at the least, illegal ; in other words, to effect a legal 
 purpose with a corrupt intent or by improper means — 
 for example, to support a cause believed to be just by 
 
 (0 Mulcahy v. S., L. E. 3 H. L. Ap. Ca. 306. 
 
 (m) B. V. Gill, 2 B. & Aid. 204. 
 
 (n) " It is not altogether inconyenient to have a branch of the law which 
 enables the Courts, by a sort of ostracism, tO punish people who malce them- 
 selves dangerous or obnoxious to society at large, and the necessity for 
 quoting precedents — the publicity of the proceedings — and the general in- 
 tegrity of the judges, are probably sufficient safeguards against its abuse, 
 but it would be idle to deny thai the power is dangerous, and ought to 
 be watched with jealousy." — Fitz. St. 149. 
 
 (o) See Final Report of Roy. Com. on Labour Laws 
 
 Ip) 24 & 25 Vict. c. 100, s. 4. 
 
OONSPIEACY. 125 
 
 perjured evidence ; to break into another's house, in 
 order to obtain one's own property. 
 
 We have already- noticed the case of trade conspira- 
 cies, and referred to an exception to the common law 
 doctrine in such matters (q). 
 
 3. Where, with a malicious design to do an injury, 
 the purpose is to effect a wrong, though not such a 
 wrong as when perpetrated by a single individual would 
 amount to an offence against the criminal law. We 
 may distinguish the following cases : — 
 
 (a.) Falsely to charge another with a crime — whether 
 from malicious and vindictive motives, or ' to extort 
 money from him. But, of course, two or more per- 
 sons may agree to prosecute a person against whom 
 there are reasonable grounds of suspicion. 
 
 (b.) To do an act with intent to pervert the course 
 of justice, for this is an injury to the public at large — 
 for example, when two or more agree together that one 
 of them shall be robbed by the others, in order that they 
 may obtain the statutory reward for conviction (r). 
 
 (c.) Generally — ^Wrongfully to injure or prejudice 
 others, whether an individual, a body of men, or the 
 public, in any other manner. The varieties of this 
 offence are innumerable, but two or three examples 
 will suffice : To injure a man in his trade ; to raise the 
 price of the public funds by false rumours ; to violate 
 morality and public decency by inducing a woman to 
 , become a common prostitute (s). But it is said that 
 not every combination to effect a tort is criminal ; that 
 wherever a combination to commit a civil injury has 
 been held criminal, the injury has been malicious (using 
 the term in the non-technical sense) — for example, a 
 
 (?) V. pp. 119, 122. 
 
 (r) B. y. Macdaniel, 1 Leach, 45. 
 
 (s) V. Ai-ch. 980 for other instances. 
 
126 CONSPIEACY. 
 
 combination to pull down a fence would not be criminal, 
 if the only object of the act were to try a question 
 as to the right of way {t). 
 
 Conspiracy is a misdemeanor, punishable by fine or 
 imprisonment, or both ; in the case of conspiracy to 
 murder, by penal servitude to the extent of ten 
 years (m). This crime falls under the provision of the 
 Vexatious Indictments Act {x). 
 
 Merger of coa- If the purposo of the Conspiracy is a felonious one 
 feior^ '° ^^^ and actually carried out, the conspiracy is merged in 
 the felony ; so that after a conviction for the felony 
 the defendant cannot be tried for the conspiracy. But 
 if the defendant is indicted for the conspiracy, he is not 
 entitled to an acquittal, because the facts shew a 
 felony. Under such circumstances, however, he cannot 
 be subsequently tried for the felony unless the court 
 has discharged the jury from giving a verdict on the 
 misdemeanor {y). 
 
 (f) Rose. 410 ; B. v. Turner, 13 East, 228. 
 
 (u) V. supra. 
 
 (x) V. p. 344. 
 
 (</) 14 & 15 Vict. 0. 100, s. 12. 
 
( 127 ) 
 
 CHAPTEE VIII. 
 
 OFPESrOES AGAINST PUBLIC MORALS, HEALTH, 
 AND GOOD OEDBE. 
 
 « 
 
 Unbeb this head will be noticed a somewhat miscella- Morality and 
 neous class of oflfences which are considered to affect l^^ criminal 
 the pnhlic rather than the indiTidual ; though some of 
 them at first sight appear rather to concern particular 
 persons, e.ff., bigamy. Throughout the whole of the 
 criminal law there can be traced an unwillingness to 
 resort to anything characteristic of paternal govern- 
 ment. As a rule, mere immorality is not punished 
 until it invades the rights of others than those who par- 
 ticipate in it, whether by public evil example or other- 
 wise. Thus a mere falsehood is not punishable ; but if 
 it involves a fraud on another, then the law steps in 
 with its punishments. 
 
 BIGAMY. 
 
 The offence consists in marrying a second time, Bigamy, 
 while the defendant has a former husband or wife still 
 living. 
 
 N'ot only is the second marriage void, but it also 
 constitutes a felony ; and this whether the second mar- 
 riage took place in the United Kingdom or elsewhere. 
 There are 'certain cases which are excepted by the Where the 
 statute which declares the second marriage generally ri^s'^isToT 
 
 felonious : — felonious. 
 
 i. A second marriage contracted elsewhere than in 
 England or Ireland by any other than one of Her 
 Majesty's subjects. 
 
128 OFFENCES AGAINST PUBLIC MORALS, 
 
 ii. A second marriage by one whose husband or wife 
 has been continually absent from such person for the 
 last seven years, and has not been known by such 
 person to be living within that time. 
 
 iii. A second marriage by one who, at the time of 
 such second marriage, was divorced from the bond of 
 the first marriage. 
 
 iv. A second marriage by a person whose former 
 marriage has been declared void by the sentence of any 
 court of competent jurisdiction (z). 
 
 In none of these cases is the second marriage a 
 felony ; but in the second case it is a mere nullity. 
 
 It is no defence to the charge of bigamy that the 
 subsequent marriage would in any case have been void, 
 as for consanguinity and the like (a). But if the first 
 marriage is void, the second will not be bigamous; 
 otherwise if voidable only (6). It has been recently 
 settled that a lond fide belief by the prisoner at the 
 time of the second marriage that her husband was then 
 dead is no defence (e). 
 
 The first {i.e., the real) wife or husband is not a com- 
 petent witness either for or against her or his consort ; 
 but of course the (so-called) second wife or husband is. 
 
 Punishment. This felony is punishable by penal servitude to the 
 extent of seven years. The man (or woman) who goes 
 through the form of marriage with the bigamist does 
 not altogether escape. He may be indicted as principal 
 in the second degree, having been present aiding and 
 assisting the woman in committing the felony ; or at 
 any rate as an accessory before the fact for counselling 
 her to commit the crime (d) (e). 
 
 («) 24 & 25 Vict. c. 100, s. 57. 
 
 (a) S. V. Allen, L. R. 1 C. C. R. 376 ; 41 L. J. (M.C.) 101. 
 
 (6) S. V. Jacobs, 1 Mood. C. C. 140. 
 
 (o) S. V. Gibbms, 12 Cox, 237. 
 
 ((0 S- V. Brawn, 1 C. & K. 144. 
 
 (e) There are certain other offences connected with marriage. By 
 
HEALTH, AND GOOD OEDEE. 129 
 
 INDECENT CONDUCT. 
 
 To this head may be referred the public and indecent indecent con- 
 exposure of the person, which may be treated as a criminal ™ 
 common nuisance. Also the exposing for public sale 
 or view any obscene book, print, picture, or other in- 
 decent exhibition. Both of these offences are misde- 
 meanors, and punishable by fine or imprisonment, or 
 both (/). Power is given. to magistrates, under certain 
 circumstances, to authorize the searching of houses and 
 other places in which obscene books, &c., are suspected 
 to be sold or otherwise published for gain, and to autho- 
 rize their seizure and destruction {g). 
 
 GAMING AND GAMING HOUSES. 
 
 The law does not deem it within its province to 
 punish such practices as gaming, unless either some 
 fraud is resorted to, or regular institutions are esta- 
 blished for the purpose, so as to amount to a public 
 nuisance. 
 
 As to Gaming. — If any person by fraud or unlawful Gaming, 
 device, or ill practice, in playing, betting, or wagering, 
 win any sum of money or valuable thing, he is deemed 
 guilty of obtaining money by false pretences, and 
 punished accordingly (A). 
 
 Playing or betting by way of wagering or gaming 
 in any street, road, highway, or other open and publie 
 place, or in any open place to which the public have 
 
 4 Geo. 4, i;. 76, s. 21, and 6 & 7 Wm. 4, c. 85, ss. 39, 41, persons unduly 
 solemnizing marriages are guilty of felony, v. 1 Euss. 959. Making false 
 declarations, signing false notices or certificates of marriage, &c., are 
 offences attended by the penalties of perjury, 6 & 7 Wm. 4, c. 85, s. 38. 
 As to forging marriage licences, v. " Forgery." As to Abduction, &c., r. 
 p. 174. 
 
 (/) 14 & 15 Vict. c. 100, s. 29. 
 
 (9) 20 & 21 Vict. c. 83. As to Indecent Assaults, v. p. 172. Disorderly 
 Houses, &c., T. p. 134. 
 ^ (/j) 8 & 9 Vict. u. 109, s. 17. 
 
 K 
 
130 OFFENCES AGAINST PUBLIC MOEALS, 
 
 access, at or with any table or instruinent of gaming, 
 or any card, token, or otter article used as an instru- 
 ment of wagering at any game or pretended game of 
 chance, subjects the player to the punishments of 5 
 G-eo. 4, c. 83 (i), as a rogue and vagabond ; or else, at 
 the discretion of the magistrate, to a penalty not 
 exceeding 40s. for the first offence, and £5 for any 
 subsequent offence (k). 
 
 The subject of Lotteries will be considered under the 
 head " Nuisances." 
 
 Gaming 
 houses. , 
 
 Legislation as 
 to gaming 
 houses. 
 
 As to Oaming Houses. — Houses of this description 
 are regarded as so detrimental to public morality and 
 good order, that they are classed among public nuisances. 
 As such, the keepers are guilty of a common law mis- 
 demeanor, and liable to fine or imprisonment, or both. 
 
 The chief steps taken by the legislature to suppress 
 the evils of gaming houses are the following. An early 
 statute prohibited the keeping of any common house 
 for dice, cards, or other unlawful games, under a penalty 
 of forty shillings for every day and six and eightpence 
 for every time of playing {I). Subsequent statutes 
 included other games under heavier penalties (m). By 
 a later statute (n) the statute of Henry VHI. is re-^ 
 pealed as far as it prohibited bowling, tennis, or other 
 games of mere skill. Further provision was also made 
 by the Act of this reign against those who own or 
 keep common gaming houses. The owner or keeper, 
 and every person having the care and management of 
 such house, and also every banker, croupier, and other 
 person in any manner conducting the business of the 
 house, is liable, on conviction before two justices, to a 
 
 (i) V. p. 137. 
 
 (A) 36 & 37 Vict. c. 38, s. 3. 
 Q) 33 Hen. 8. c. 9, s. 11. 
 
 (m) V. 9 Anne, c. 14; 12 Geo. 2, c. 28 ; 13 Geo. 2, c. 19 ; 18 Geo. 2, c 34. 
 ■ («) 8 & 9 Vict. 0. 109, amended by 17 &.18 Vict. o. 38. 
 
HEALTH, AND GOOD ORDER. 131 
 
 penalty not exceeding £500, in addition to the penalty 
 under 33 Hen. 8 ; or may be committed to prison for 
 a period not exceeding six months (o). 
 
 If any person who has been concerned in the un- 
 lawful gaming, on his examination as witness, makes 
 true disclosure to the best of his knowledge, he is 
 entitled to receive a certificate, and is free from all 
 consequences of his unlawful act up to that time (p). 
 
 Betting houses, rooms, offices, or places, are deemed Betting houses. 
 gaming houses within this statute. Persons receiving 
 deposits on bets in such houses incur a penalty of £30, 
 or imprisonment for three months. Exhibiting placards 
 or handbills, or otherwise advertising betting houses, 
 is punished by a penalty of £30, or imprisonment for 
 two months (q). 
 
 The fact that the entrance of a peace officer is 
 obstructed or delayed, or that the place is found pro- 
 vided with means of gaming, or of concealing instru- 
 ments of gaming, is evidence that the house is a common 
 gaminghouse. Penalties are imposed for such obstruc- 
 tions and for certain other ofiences (r). 
 
 COMMON OR PUBLIC NUISANCES. 
 
 Another offence of wide and vaguely-defined limits Nuisance, the 
 is now to be considered. In its definition its extent is i^^^nite 
 indefinite, but in practice it is confined to certain 
 classes of acts which interfere with the normal state 
 of order and comfort. 
 
 Common nuisances are such annoyances as are liable Public and 
 to affect all persons who come within the range of their ^^i^^nces 
 
 distinguished. 
 
 (o) 8 & 9 Vict. u. 109, s. 4. 
 Ip) Ibid. s. 9. 
 Iq) 16 & 17 Vict. u. 119. 
 (r) 17 & 18 Vict. u. 38. 
 
 K 2 
 
132 OFFENCES AGAINST PUBLIC MOKALS, 
 
 operation. They consist of acts either of commission 
 or of omission, that is,, causing something to be done 
 which annoys the community generally, or neglecting 
 to do something which the common good requires. 
 Public nuisances are opposed to private nuisances, which 
 annoy particular individuals only, that is, to which all 
 persons are not liable to be exposed. The distinction 
 is one based on the extent of the operation of the evil, 
 and not one relating to the class of evil ; inasmuch as 
 all kinds of nuisances which, when injurious to private 
 persons,- are actionable as private nuisances, when 
 detrimental to the public welfare, are punishable on 
 prosecution as public nuisances. It is for the jury to 
 determine whether a sufficiently large number of per- 
 sons are or may be affected so as to make the nuisance 
 " common " or " public " (s). 
 
 Common 
 nuisances not 
 actionable. 
 
 Common nuisances are indictable as misdemeanors. 
 They do not give rise to civil action by everyone who 
 is subjected to the common annoyance. But if anyone 
 can prove special damage, that is, that he is affected in 
 some respect in a way in which the public generally 
 are not, he may pursue his civil remedy and obtain 
 damages. 
 
 Abatement. Another course of proceeding is sometimes available 
 
 in nuisances, namely, abatement or removal of the 
 nuisance by the party's own act. In private nuisances 
 this is commonly allowed to be done by the party 
 aggrieved ; but in public nuisances the right is more 
 confined. They may be abated by boards of health and 
 other public bodies specially authorized under various 
 public Acts (t) ; but private individuals cannot resort 
 to this course if the abatement involves a breach of the 
 peace ; and in any case they can only interfere so far 
 as is necessary to exercise the right of passing, &c. 
 
 (s) H. V. White, 1 Burr. 333. 
 (i) V. 38 & 39 Vict. c. 55. 
 
HEALTH, AND GOOD OBDER. 133 
 
 The principal classes of public nuisances will be 
 briefly noticed : — 
 
 i. Nuisances to highways, hridges, and puhlio rivers. — Nuisances to 
 These annoyances may be either positive, by actual ob- l^'giiways, &c. 
 struction ; or negative, by want of reparation. In the 
 latter case, only those persons are liable whose duty it 
 is to keep the roads, &c., in repair. The former class 
 consists of a variety of offences, for example, laying 
 rubbish on the road, digging trenches in it, diverting 
 part of a public river, &c. 
 
 ii. Carrying on offensive or dangerous trades or manu- Offensive 
 factures. — Manufactures which are injurious to the *'''"'*^' **"• 
 health or merely offensive to the senses are nuisances ; 
 and it is no defence that the public benefit outweighs 
 the public annoyance (m). But if a noxious trade is 
 already established in a place remote from habitations 
 and public roads, and persons come and build near, or 
 a new road is made, the trade may be continued («). 
 The presence of other nuisances will not justify any 
 one of them ; but a person cannot be indicted for 
 setting up a noxious manufacture in a neighbourhood 
 in which other offensive pursuits have long been borne 
 with, unless the inconvenience to the public is greatly 
 increased (y). No length of time will legitimate this 
 or other kinds of nuisances, but the consideration of 
 time may sometimes concur with other circumstances 
 to prevent the character of nuisance from attach- 
 ing (2). 
 
 Nuisances which affect the public health are dealt 
 with in the numerous statutes which treat of that 
 subject. 
 
 iii. Houses, &c., which interfere with publie order and Houses, as 
 
 (m) £. y. Ward, 5 L. J. (K.B.) 221. 
 
 Ix) R. V. Gross, 2 C. & P. 483. 
 
 (_y) E. V. Neil, 2 C. & P. 485 ; t. E. v. NeviUe, Peake, 91. 
 
 (2) Weld T. Hornby, 7 East, 199. 
 
Lotteries.' 
 
 134 OFFENCES AGAINST PUBLIC MORALS, 
 
 decency. — The following places are nuisances, and, upon 
 indictment, may be suppressed, and their owners, 
 keepers, or ostensible managers punished by fine or im- 
 prisonment, or both — Disorderly inns (a) or alehouses ; 
 bawdy houses ; gaming and betting houses (b) ; un- 
 licensed or improperly conducted playhouses, booths, 
 stages for dancers, and the like. 
 
 Prosecutions for keeping a bawdy house or gaming 
 house fall within the proyisions of the Vexatious 
 Indictments Act (c). 
 
 iv. Lotteries. — All lotteries were declared by statute (ci) 
 public nuisances. State lotteries were, however, autho- 
 rized by successive Acts of Parliament until 1824, 
 when they were discontinued, the State being thus 
 enabled without inconsistency to enforce the already- 
 existing law against other lotteries. 
 
 V. A vast number of other acts, &c., have been de- 
 clared public nuisances; for example, exposing in a 
 public thoroughfare persons afflicted with infectious 
 disease ; allowing mischievous dogs to go abroad un- 
 muzzled, provided that, if they were not of a description 
 to be generally dangerous, the owner was aware of 
 their nature ; keeping fierce animals in places open to 
 the public ; keeping hogs near a public street ; keep- 
 ing a corpse unburied; making great noises in the 
 street at night; eavesdropping, that is, "listening 
 under walls or windows, or the eaves of a house, to 
 hearken after discourse, and thereby to frame slanderous 
 and mischievous tales ;" common scolds; and in gene- 
 ral anything which is an appreciable grievance to the 
 public at large. 
 
 Who is liable. There are two cases at least where there might be a 
 
 Miscellaneous 
 nuisances. 
 
 (a) If a traveller is refused entertainment without sufficient cause, the 
 inn is liable to be treated as a disorderly inn. 
 (6) V. p. 130. 
 (c) V. p. 344. 
 Id) 10 & U Wm. 3, 0. 17. 
 
HEALTH, AND GOOD OKDEK. 135 
 
 doubt as to the person who is criminally responsible 
 for a nuisance. The landlord is liable if he erects a 
 building which is a nuisance, or the occupation of which 
 is likely to produce a nuisance. The master or em- 
 ployer is liable for a nuisance caused by the acts of his 
 seryants if done in the course of their employment. 
 
 ADULTBEATION AND UNWHOLESOME PROVISIONS. 
 
 Obviously there is no undue interference on the part 
 of the State, when it characterizes as a crime the adul- 
 terating food or dealing in unwholesome provisions. 
 
 The law as to adulteration is contained chiefly in the Adulteration, 
 Sale of Food and Drugs Act, 1875 (e). Mixing, or ^°- 
 ordering, or permitting other persons to mix, colour, 
 &c., any article of food with any material injurious to 
 health, with intent that the same may be sold in that 
 state, is punishable for the first ofi'ence by a penalty of 
 £50 ; the second offence is a misdemeanor, punishable 
 by imprisonment not exceeding six months (/). The 
 same consequences attend the adulteration of drugs, so 
 as to afl'ect injuriously the quality or potency of such 
 drugs (ff). In either case the person is excused if he 
 can prove absence of knowledge. The defendant is 
 discharged if he can prove that he bought the article 
 in the same state as he sold it, with a warranty (h). 
 Other punishments are prescribed for giving false 
 warranties, false labels, forging certificates, or war- 
 ranties, &c. (i). 
 
 WANTON AND FUEIOUS DBIVING. 
 
 Anyone having the charge of any carriage or vehicle, Furious 
 who, by wanton or furious driving or racing, or by <i'''T'°g- 
 
 (e) 38 & 39 Vict. u. 63. 
 (/) Ibid. s. 4, 
 ((/) Ibid. s. 5. 
 (A) Ibid. s. 25 
 (0 Ibid. s. 27. 
 
136 OFFENCES AGAINST PUBLIC MOKALS, 
 
 wilful misconduct, or by wilful neglect, does or causes 
 to be done any bodily barm to anotber, is guilty of a 
 misdemeanor, and is liable to imprisonment not exceed- 
 ing two years, or fine, or botb (k). 
 
 TAGKANCY. 
 
 Vagrancy. There are always in tbis country a great number of 
 
 persons, belonging to tbe criminal class, against wbom 
 no particular offence can be proved, but whose conduct 
 demands correction. The law punishes such as vag- 
 rants; taking care that mere misfortune or poverty 
 does not place an innocent person in this class. The 
 chief statute on the subject is 5 Geo. 4, c. 83, amended 
 by 1 & 2 Yict. c. 38 ; other Acts rendering liable to 
 the punishments of these statutes those who evidence 
 their culpability by certain kinds of conduct. 
 
 Persons of this character are divided into three 
 classes : — 1. Idle and disorderly persons ; 2. Eogues 
 and vagabonds ; 3. Incorrigible rogues. 
 
 pen 
 
 'sons. 
 
 Idle and dis- 1. Idle and Disorderly Persons. — This class consists 
 "vQol,^ of such characters as the following : — Persons becom- 
 
 ng chargeable to the parish though able to work; 
 (b) Those returning to a parish from which they have 
 been removed; (c) Hawkers and pedlars wandering 
 about and trading without licence ; (d) Prostitutes be- 
 having in public places in a riotous or indecent man- 
 ner ; (e) Beggars asking alms or causing or encouraging 
 others to do so (l) ; (f) Insubordinate or disobedient 
 paupers (m). 
 
 The punishment, on conviction before a magistrate, 
 is imprisonment for not exceeding one month {n). 
 
 (k) 24 & 25 Vict. c. 100, ». 35. 
 (0 5 Geo. 4, c. 83, s. 3. 
 (m) 34 & 35 Vict. c. 108, ». 7. 
 (n) 5 Geo. 4, c, 83, s. 3. 
 
HEALTH, AND GOOD OKDEE. 137 
 
 2. Rogues and Vagabonds. — Under this designation Eogues and 
 fall (a) those who commit any of the above offences a '^'^g*^™^^- 
 second time. Also the following: (h) Persons pre- 
 tending to tell fortunes, &c. ; (c) Wandering about, 
 lodging in a barn, in the open air, &c., not having 
 any visible means of subsistence, and not giving a good 
 account of themselves ; (d) Publicly exposing to view 
 obscene prints, &c. ; (e) Publicly exposing their per- 
 sons ; (f) Exposing wounds or deformities in order to 
 obtain alms ; (g) Collecting alms or contributions 
 under false pretences ; -(h) Kunning away and leaving 
 wife or children chargeable to the parish ; (i) Playing 
 or betting in public (o) ; (k) Having in possession one 
 or more of certain instruments with intent to commit 
 a felonious act ; (1) Being found in a dwelling-house, 
 &c., for an unlawful purpose ; (m) Suspected or re- 
 puted thieves visiting public places with intent to 
 commit a felony ; (n) Making violent resistance when 
 apprehended by a peace of&cer as an idle, disorderly 
 person, provided there be a conviction; (o) Acting 
 contrary to directions of certificates given to persons 
 discharged from prison under 5 Geo. 4, c. 83, s. 15 (p). 
 
 The punishment awarded by the magistrate is im- 
 prisonment not exceeding three months. In this case, 
 and that of imprisonment as an idle and disorderly 
 person, there is an appeal to the sessions {q). 
 
 3. Incorrigible Eogues. — To be dealt with as such are incorrigible 
 (a) Those who are convicted a second time of an act ™S"es. 
 which makes the doer a rogue and vagabond j (b) Es- 
 caping out of a place of confinement before the expira- 
 tion of the time for which they were committed under 
 this Act ; (c) Making violent resistance when appre- 
 
 (o) 36 & 37 Vict. c. 38, v. p. 129. 
 Ip) 5 Geo. 4, c. 83, s. 4. 
 (?) Ibid. 
 
138 OFFENCES AGAINST PUBLIC MORALS, 
 
 bended by a peace officer as a rogue and vagabond, 
 if subsequently convicted of tbe offence for wbicb tbey 
 were apprebended (r). 
 
 Tbe magistrate may commit a person convicted as 
 an incorrigible rogue to bard labour in tbe bouse of 
 correction until tbe next sessions. By tbat court be 
 may be imprisoned for a period not exceeding one year, 
 witb or witbout wbipping, if a male (s). 
 
 SENDING UNSEAWOBTHY SHIP a?0 SEA. 
 
 Sending unsea- If a sbip is Sent to Sea in sucb unseawortby state 
 Tsea^ '""'P tbat tbe life of any person is likely to be tbereby en- 
 dangered, tbe following persons are guilty of a mis- 
 demeanor : — 
 
 (a.) Tbe person sending it ; (b) tbe managing owner 
 of any Britisb sbip so sent to sea from any port in tbe 
 United Kingdom ; (c) tbe person attempting to send it 
 to sea; (d) tbe master of a Britisb sbip knowingly 
 taking it to sea. 
 
 Defence. But tbe accused will not be deemed guilty if be 
 
 proves in tbe former cases tbat be bas used all reason- 
 able means to ensure tbe sbip being sent to sea in 
 a seawortby state, or proves tbat ber going to sea in 
 sucb unseawortby state was, under tbe circumstances. 
 
 (r) 5 Geo. 4, u. 83, s, 5. 
 
 (s) Ibid. Though Drwnkenness is not an indictable offence, but only 
 punishable on summary conviction, the subject may have a passing notice 
 here. The mere fact of drunkenness is punishable by forfeiture of 5s. 
 for the first offence ; for the second the offender may be bound with two 
 sureties in £10 for good behaviour (4 Jac. 1, c. 5 ; 21 Jac. 1, c. 7, s. 3). 
 Persons found drunk in any street or public thoroughfare, building, or 
 other place, or on any licensed premises, are liable to a penalty of 10s. for 
 the first offence ; 20s. and 40s. for the second and third within the twelve 
 months. If, whilst drunk, a person is guilty of riotous or disorderly 
 behaviour, or is in charge of any carriage, horse, cattle, or steam-engine, 
 or is in possession ol any loaded fire-arms, the penalty is 40s., or imprison- 
 ment for a month (35 & 36 Vict. c. 94, s. 12). The same Act contains 
 penalties for permitting drunken conduct (v. 10 & 11 Vict. u. 89). 
 
HEALTH, AND GOOD OEDER. 
 
 reasonable and justifiable ; in the last case, if lie proves 
 the latter of these points. 
 
 In each case the accused may give evidence in the 
 same manner as any other witness (t). 
 
 (t) 38 & 39 Vict. u. 38, s. 4; t. p. 387. The first trial at which the 
 defendant was examined took place at the Liverpool Spring Assizes, 1876. 
 
 139 
 
( 140 ) 
 
 CHAPTEE IX. 
 
 OFFENCES RELATING TO GAME. 
 
 Ground of WITHOUT entering into a discussion as to the sufficiency 
 special legisia- £ ^-^ ground on which the game laws are based, we 
 
 tioa as to game & n n xx 3 j. a- 
 
 offences. proceed to treat of poaching and the attendant onences. 
 
 We shall find hereafter that animals /er« naturm (in- 
 cluding game) in their lire state are not the property 
 of any one, and on this account are not the subjects of 
 larceny. Therefore the legislature has made special 
 provisions, in some cases more stringent than in the 
 case of ordinary articles. 
 
 The principal statute on the subject is 9 Geo. 4, 
 c. 69, amended by 7 & 8 Vict. c. 29 and 25 & 26 Yict. 
 c. 114. The following are the chief offences : — 
 
 Taking, &c., i. Any person by night (declared to commence one 
 game by night, j^^^^, ^^^^^ sunset, and to conclude at the beginning of 
 the last hour before sunrise) (u) unlawfully tahing or 
 destroying any game (hares, pheasants, partridges, 
 grouse, heath or moor game, black game and bustards) 
 or rabbits, in any land open or inclosed (x), or on 
 public roads, highways, gates, outlets, openings between 
 such lands and roads {y). 
 
 Entering, &c., ii. Any persou entering or heing by night in such 
 for purpose of places, with any gun, net, engine, or other instrument 
 for the purpose of taking or destroying game (z). 
 
 (m) 9 Geo. 4, c. 69, s. 12. 
 
 (a;) Ibid. s. 1. 
 
 (i/) 7 & 8 Vict. c. 29, s. 1. 
 
 (2) 9 Geo. 4, c. 69, s. 1. 
 
OFFENCES BELATING TO GAME. 141 
 
 The punishment for the first offence in each case Punishment, 
 is imprisonment not exceeding three months, and at 
 the expiration of such period to be bound over to 
 good behaviour for a year, or, in default of sureties, 
 further imprisonment not exceeding six months, or 
 until such sureties be found. For the second, like- 
 wise summarily dealt with, each of the above periods 
 is doubled. The third offence is a misdemeanor, 
 punishable by penal servitude to the extent of seven 
 years (a). 
 
 When any person is found committing such offence, Apprehension 
 it is lawful for the owner or occupier of the land (or in °^ "lender. 
 the case of a public road, &c., of the adjoining land), or 
 for any person having a right of free warren or free 
 chase therein, or for the lord of the manor, or for the 
 gamekeeper or servant of such persons, or for any one 
 assisting them, to apprehend the poacher. If the 
 latter assaults or offers any violence with an offensive 
 weapon to such persons, he is punishable for the mis- 
 demeanor with penal servitude to the extent of seven 
 years (6). 
 
 A graver offence is dealt with in a later section of the Three or more 
 same statute. For three or more persons, by night, to ''™'''^se"of 
 unlawfully enter, or be in any land (or road, &c., 7 & 8 talcing game. 
 Vict. c. 29), for the purpose of taking or destroying 
 game or rabbits, any of the party being armed with 
 firearms or other offensive weapons, is a misdemeanor 
 in each, punishable by penal servitude to the extent of 
 fourteen years (c). 
 
 The prosecution for every offence within this Act, if 
 punishable on summary conviction, must be commenced 
 
 (o) 9 Geo. 4, c. 69, s. 1. 
 (5) Ibid. s. 2. 
 (c) Ibid. s. 9. 
 
142 OFFENCES RELATING TO GAME. 
 
 within six montlia after the offence; if punishable by 
 indictment or otherwise than by summary conviction, 
 within twelve months (d). 
 
 Search for Power is given to the police to search in public 
 
 game, guns, &c.p^g^^gg persons suspected on reasonable grounds of 
 coming from lands where they have been unlawfully 
 in pursuit of game, and their carts, and to seize any 
 game, guns, &c., which they may have in their posses- 
 sion. The persons so searched are to be brought before 
 two magistrates assembled in petty sessions, and, if they 
 are convicted, forfeit the goods and are fined not ex- 
 ceeding £5 (e). 
 
 Hares and Unlawfully taking or killing hares or rahlits in 
 
 rabbits. warren by night, is a misdemeanor ; by day, an 
 
 offence punishable on summary conviction (/). 
 
 Deer. By the same statute, hunting, killing, &c., deer 
 
 in an uninclosed part of a forest is punishable on the 
 first offence by penalty not exceeding £50 ; on the 
 second, which is a felony, by imprisonment not ex- 
 ceeding two years. The latter punishment applies 
 to even a first offence, if committed in an inclosed 
 part {g). 
 
 Spring-guns, In connection with this subject we may notice that, 
 although any innocent means may be employed to 
 prevent game from being taken, and land from being 
 trespassed on, it is criminal to adopt certain extreme 
 measures. Setting a spring-gun, man-trap, or other 
 engine calculated to destroy life or inflict grievous 
 bodily harm, with intent that the same, or whereby 
 the same, may destroy or inflict grievous bodily harm 
 
 (S) 9 Geo. 4, c. 69, s. 4. 
 (e) 25 & 26 Vict. c. 114, s. 2. 
 (/)24&25 Vict. c. 96, s. 17. 
 (<;) Ibid. ss. 12, 13. 
 
 &c. 
 
OFFENCES EELATING TO GAME. 143 
 
 upon a trespasser or other person coming in contact 
 therewith, is a misdemeanor punishable by penal ser- 
 vitude to the extent of five years. But this does not 
 prevent setting a man-trap, &c., to protect a dwelling- 
 house from sunset to sunrise (h). 
 
 (A) 24 & 25 Vict. .;. 100. s. 31. 
 
( 144 ) 
 
 Offences 
 against indi- 
 viduals, why 
 crimes. 
 
 OFFENCES AGAINST INDIVIDUALS. 
 
 Offences which immediately affect individuals are re- 
 garded as crimes, and not merely as violations of private 
 rights, on several grounds. First, because they are 
 considered as contempts of public justice and the 
 Crown; secondly, because they almost always include 
 in them a breach of the public peace ; thirdly, because, 
 by their example and evil tendency, they threaten and 
 endanger the subversion of all civil society (i). 
 
 Offences against individuals may be divided into two 
 classes — those 
 
 Against their Persons. 
 Against their Property. 
 
 (0 4 Bl. 176. 
 
,( 145 ) 
 
 PART II. 
 
 OFFENCES AGAINST INDIVIDUALS. 
 
 THEIR PERSONS. 
 
 It is needless to remark that offences against the in offences 
 person vary considerably in their enormity and in pfrsofthe'' 
 their consequences. In this department especially degree of 
 anomalies occur, which are apparently productive of °fJ"Q"^^tg?-'^ 
 great inequality. It is here perhaps more than else- mined by 
 where that the interference of what may be termed drcumstances. 
 " extraneous circumstances " determines the character 
 and gravity of the offence. We have seen that the 
 intent is the index to the quality of the act ; and if 
 the intent could always be correctly arrived at, of course 
 such circumstances would be left out of consideration. 
 And even as it is, it is difficult to see why certain 
 contingencies, entirely out of the control of the 
 accused, should affect his position in the most vital 
 manner. For example, the same intent may result in 
 murder, or wounding with intent to murder, according 
 to the skilfulness of the surgeon who treats the 
 wounded man. It is, however, obviously expedient, 
 with our defective means of gauging the intent, to 
 punish more seriously the completed crime, so that in 
 cases where this consideration would have any effect 
 the criminal may be induced to stop short or to resort 
 to the less serious deed. 
 
 Again, it is the law that a person cannot be convicted 
 of murder if the death does not ensue within a year 
 and a day from the date of the blow or wound. It 
 seems hard to explain why there should still be an 
 arbitrary line thus drawn ; and why it should not be 
 
146 OFFENCES AGAINST INDITIDUALS. 
 
 left to the jury to decide wtether the death was the 
 direct result of the wound. This seems to he another 
 case of interference with the province of the jury. 
 Again, it is plain that a surgeon's still has yery much 
 to do with the recovery of the injured person (Jt). 
 
 (k) V. S. V. Holland, 2 M. & R. 351. 
 
( 147 ) 
 
 CHAPTEE I. 
 
 HOMICIDE. 
 
 HoMiciBE — the destroying of the life of a human being Homicide. . 
 — includes acts varying from those which imply no 
 guilt at all to those which constitute the greatest crime 
 and meet with the extreme punishment of the law. 
 Three kinds of homicide are usually distinguished, 
 each class admitting of subdivision : — 
 
 Justifiable: Excusable: Felonious. 
 
 It may be stated at the outset that if the mere fact Presumed to be 
 of the homicide is proved, the law presumes the malice ''*'"'"°"^- 
 which is necessary to make it felonious ; and, therefore, 
 it lies on the accused to shew that it was justifiable or 
 excusable. 
 
 Justifiable Homicide, that is, where no guilt, nor JustiBable 
 even fault attaches to the slayer. — For one species of '^°™"^"'^- 
 homicide the term "justifiable " seems almost too weak, 
 inasmuch as not only is the deed justifiable, but also 
 obligatory. Three cases of justifiable homicide are 
 recognized : — 
 
 i. Where the proper officer executes a criminal in Execution of a 
 strict conformity with his legal sentence. A person """"°'' • 
 other than the proper officer (i.e., the sheriff or his 
 deputy) who performs the part of an executioner is 
 guilty of murder. The criminal must have been found 
 guilty by a competent tribunal ; so that it would be 
 murder otherwise to kill the greatest of malefactors. 
 The sentence must have been legally given ; .that is, 
 by a court or judge who has authority to deal with 
 
 L 2 
 
148 HOMICIDE. 
 
 the crime. If judgment of death is given by a judge 
 who has not authority, and the accused is executed, 
 the judge is guilty of murder. The sentence must be 
 strictly carried out by the officer (i.e., the sentence as 
 it stands after the remission of any part which the 
 sovereign thinks fit), so that if he beheads a criminal 
 whose sentence is hanging or viee versa, he is guilty of 
 murder. Though the sovereign may remit a part of 
 the sentence, he may not change it. 
 
 The two following instances of justifiable homicide 
 are permitted by the law as necessary ; and the first, 
 at least, as for the advancement of public justice. 
 
 Homicide by ii. Where an officer of justice, or other person acting 
 the execut? '" ^^ ^^^ ^^^' ™ *^® legal excrcise of a particular duty, 
 of his duty, kills a pcrson who resists or prevents him from execut- 
 ing it. Homicide is justifiable on this ground in the 
 following cases (Z) : (a) When a peace officer or his 
 assistant in the due execution of his office, whether in 
 a civil or criminal case, kills oAe who is resisting his 
 arrest-or attempt to arrest, (b) When the prisoners 
 in gaol, or going to gaol, assault the gaoler or officer,^ 
 and he, in his defence, to prevent an escape, kills any of 
 them, (c) When an officer, or private person, having 
 legal authority to arrest, attempts to do so, and the 
 other flies, and is killed in the pursuit. But here the 
 ground of the arrest must be either a felony, or the 
 infliction of a dangerous wound, (d) When an officer, 
 in endeavouring to disperse the mob in a riot or 
 rebellious assembly, kills one or more of them, he not 
 being able otherwise to suppress the riot. In this 
 case the homicide is justifiable both at common law and 
 by the Kiot Act (m). 
 
 In all these cases, however, it must be shewn that 
 the killing was apparently a necessity. 
 
 (0 V. 4 Bl. 179. 
 
 (m) 1 Geo. 1, St. 2, c. 5. 
 
HOMICIDE. 1 49 
 
 ' But it is not difficult to instance cases in which the 
 officer would be guilty, (a) of murder, for example, if 
 the killing in pursuit as above were in case of one 
 charged with a misdemeanor only, or of one required 
 merely in a civil suit (w) ; (b) of manslaughter, for 
 example, if the killing in case of one so charged with 
 a misdemeanor were occasioned by means not likely to 
 kill, as by tripping up the fugitive's heels. 
 
 iii. When the homicide is committed in prevention of Homicide in 
 a forcible and atrocious crime. Such crimes, it is said, '^^ preTcntion 
 are the following : Attempting to rob or murder an- 
 other in or near the highway, or in a dwelling-house ; 
 or attempting burglariously to break a dwelling- 
 house in the night-time. In such cases, not only the 
 owner, his servants and members of his family, but 
 also any strangers present are justified in killing the 
 assailant. But this justification does not apply to 
 felonies without force, e.g., pocket-picking ; nor to 
 misdemeanors of any kind. 
 
 A woman is justified in killing one who attempts to 
 ravish her ; and so, too, the husband or father may kill 
 a man who attempts a rape on his wife or daughter, if 
 she do not consent. And even if the adultery is by 
 the consent of the wife, the husband taking the ofi'ender 
 in the act and killing him, is guilty of manslaughter 
 only. 
 
 It is said that the party whose person or property is 
 attacked is not obliged to retreat, as in other cases of 
 self-defence, but he may even pursue the assailant 
 until he finds himself or his property out of danger (o). 
 But this will not justify a person firing upon everyone 
 who forcibly enters his house, even at night. He ought 
 not to proceed to the last extremity until he has taken 
 
 («) T. R. T. Dadson, 20 L. J. (M.C.) 57. 
 (o) Fost. 273 ; 1 Uawk. c. 28, ss. 21, 24 
 
HOMICIDE, 
 
 all other possible steps. In fact, the conduct of the 
 other must be such as to render it necessary on the 
 part of the one killing to do the act in self-defence (p). 
 This brings us very near to the line which separates 
 justifiable from excusable homicide ; in fact it is diffi- 
 cult to distinguish between this and excusable homi- 
 cide se de/endendo. It may be questioned whether the 
 distinction between justifiable and excusable is a sub- 
 stantial one ; whether the cases under the former are 
 not extreme cases of se de/endendo. 
 
 Excusalle Eomicide. — We have just intimated that 
 there is little if any ground for the distinction between 
 justifiable and excusable homicide. Perhaps there may 
 be something in this, that in the former case the killer 
 is engaged in an act which the law enjoins or allows 
 positively, while in the latter he is about something 
 which the law negatively does not prohibit {q). In 
 neither case is there the malice which is an essential of 
 a crime. In former times, a yery substantial difi'erence 
 was made between the two kinds of homicide. That 
 styled " excusable " did not imply that the party was 
 altogether excused; so much so that Coke says (r) 
 that the penalty was death. But the earliest informa- 
 tion which the records supply shews that the defendant 
 was entitled to a complete pardon, and the restitution 
 of his goods ; but he had to pay a sum of money to 
 procure this award. Now it is expressly declared by 
 statute (s) that no forfeiture or punishment shall be 
 incurred by any person who kills another by misfortune 
 or in self-defence, or in any other manner without 
 felony. 
 
 (p) E. T. Bull, 9 C. & P. 22. 
 
 (?) The reason usually given is that in both the forms of excusable 
 homicide there may be some degree of blame attributable. In the first 
 case, i.e., self-defence, inasmuch as in quarrels usually both parties are to 
 some extent in fault ; in the second, i.e., accident, the party may not have 
 used sufficient caution. But to visit the act under all circumstances with 
 the punishments due to what may have happened is obviously unjust. 
 
 (r) 2 Inst. 148, 315. 
 
 (s) 24 & 25 Vict. c. 100, s. 7, re-enacting 9 Geo. 4, u. 31, =. 10. 
 
HOMICIDE. 151 
 
 The two kinds of so called excusable homicide are 
 homicide in self-defence ; homicide by accident or mis- 
 fortune. 
 
 i. 8e defendendo, upon sudden affray. — We have Homicide se 
 noticed above the case of a man killing another when ''«/«"*^<'°- 
 the latter is engaged in the performance of some 
 forcible crime. What we have now to deal with is a 
 kind of self-defence, the occasion of which is more un- 
 certain in its origin, and in which it seems natural to 
 impute some moral blame to both parties. It happens 
 when a man kills another, upon a sudden affray, in his 
 own defence, or in defence of his wife, child, parent, or 
 seryant, and not from any vindictive feeling. This is 
 one species of what is called chanoe (casual) or chaud 
 (in heat) medley {t). 
 
 To bring the killing within this excuse, the accused What is soir- 
 must shew that he endeavoured to avoid any further ^ ^'^'^^' 
 struggle, and retreated as far as he could, until no 
 possible, or at least probable, means of escaping re- 
 mained'; that then, and not until then, he killed the 
 other in order to escape destruction. It matters not 
 that the defendant gave the first blow, if he has termi- 
 nated his connection with the affray by declining further 
 struggle before the mortal wound is given. Of course 
 the defence must be made by the person assaulted, 
 while the danger is imminent ; for if the struggle is 
 over, or the other is running away, this is revenge and 
 not self-defence. Nor will a retreat of the nature in- 
 dicated avail if the blow is the result of a concerted 
 design ; as in the case of a duel, where the two parties 
 have agreed to meet each other, and one, having retreated 
 as far as he can, kills the other in protection of himself. 
 Nor will it avail if there has been a blow from malice 
 
 (i) The term is sometimes applied to the liilling of a person by onv 
 engaged in the commission of an unlawful act, without any deliiieratc 
 intention of doing any mischief; also to any manner of homicide by mis- 
 adventure. 
 
152 HOMICIDE. 
 
 prepense, and the striker has retreated and then killed 
 the other in his own defence. 
 
 As the definition shews, the killing in defence of 
 those standing in the relation of husband and wife, 
 parent and child, master and servant,- is excused ; the 
 act of such person who interferes heing construed as the 
 act of the party himself. 
 
 Distinction The distinction between this kind of homicide and 
 
 between ^j^ Clime known as manslaughter is sometimes very 
 
 homicide se ^ o ^ , . _ 
 
 defendmdo and subtle. It may be stated in this form : that m the 
 manslaughter, f^j-^gj. ^jjg slayer could not otherwise escape, if he 
 would ; in manslaughter, he would not escape if he 
 could. In other words, in the former case the accused 
 has done all that he can to avoid the struggle or its 
 continuation ; in the latter the killing is done in the 
 actual combat (m). 
 
 Homicide per ij- P^^ infortunium, by misadventure. — When a per- 
 
 in/ortunium. goQ doing a lawful act, without any intention of hurt, 
 
 by accident kills another : as, for example, a man is at 
 
 work with a hatchet, the head flies off by accident, and 
 
 kills a bystander. 
 
 The act must To bring the slaying within the protection of the 
 
 be i.iwfui, excuse, the act about which the slayer is engaged must 
 
 be (a) a lawful one. For if the slaying happen in the 
 
 performance of an illegal act it is manslaughter at 
 
 least ; and murder, if such act is a felony (v). It must 
 
 done in a also (b) be doue in a proper manner. Thus it is a 
 
 proper manner, la-^yf^j act for a parent to chastise his child, and there- - 
 
 fore if the parent happen to occasion the death of the 
 
 («) The books notice one species of homicide se defendendo, in which it 
 is said that the party slain and the party slaying are equally innocent, 
 though the act is deliberately done, and there is no actual combat. The 
 instance usually given is that of two shipwrecked persons clinging to a 
 plank which is capable of holding one only. One thrusts the other oif, 
 causing him to be drowned. This is justifiable, or, at least, excusable, 
 homicide. 
 
 (v) Y. H. V. Hodgson, 1 Leach, 6. 
 
HOMICIDE. 153 
 
 other, if the punishment be moderate, the parent will 
 be innocent as j^er infortunium. But if the correction 
 exceeds the bounds of moderation, either in the manner, 
 the instrument, or the quantity of the punishment, and 
 death ensues, it is manslaughter at the least, and in 
 some cases murder. Thus it will, as a rule, be murder 
 if the instrument used is one likely to cause death ; 
 manslaughter, if the instrument is not of such a cha- 
 racter, though an improper one. 
 
 The act must also (c) be done with due caution to with due 
 prevent danger ; and therefore with more caution by o^"'"""- 
 those using dangerous instruments or articles. Due 
 caution is such as to make it improbable that any 
 danger or injury should arise from the act to others. 
 Thus throwing stones from a house, whereby the death 
 of some one is caused may be murder, manslaughter, or 
 homicide by misadventure : murder, if the thrower 
 knew that people were passing, and gave no notice ; 
 manslaughter, if a time when it was not likely that any 
 people were passing ; excusable homicide if in a retired 
 place, where persons were not in the habit of passing 
 or likely to pass (x). It has been said that to be 
 criminal, the negligence must be so gross as to be reck- 
 less {y), but it is impossible to define culpable or 
 criminal negligence. 
 
 Felonious homicide, or homicide coupled with a Felonious 
 felonious intention, is capable only of a negative de- '"""'"'^'^ 
 
 / -^ •/ o negatively 
 
 scription — the killing of a human creature of any age described. 
 or sex without justification or excuse. The human 
 creature killed may be either one's self or another. 
 
 SUICIDE OE SELF-MURDEK. 
 
 Suicide is the felony of murder, inasmuch as it is the Suieide. 
 murder of one of the sovereign's subjects. To be such 
 
 (a;) Fost. 262. 
 
 (,y) E. V. Soakcs, 4 F. & F. 921, ii. 
 
HOMICIDE 
 
 offence, the act must be committed deliberately, and by 
 one who has arrived at years of discretion, and is in his 
 right mind. The supposed absence of the last requisite 
 is often taken advantage of by a jury guilty of " an 
 amiable perjury," in order to save the reputation of the 
 deceased. In fact sometimes their verdicts shew they 
 deem the very act of suicide evidence of insanity. 
 
 Not only is he guilty of suicide who, in pursuance of 
 a fixed intention, takes away his life, but also he who, 
 maliciously attempting to kill another, occasions his 
 own death ; as where a man shoots at another, and, the 
 gun bursting, he kills himself. But if a man is killed 
 at his own request by the hand of another, the former 
 is not deemed in law a felo de se, though the latter is a 
 murderer. 
 
 If one persuades another to kill himself, and he does 
 so, the adviser is guilty of murder. So, also, if two 
 persons agree to commit suicide together, if one escapes 
 and the other dies, the survivor is guilty of murder (2), 
 though it is extremely doubtful whether he would be 
 executed. 
 
 Formerly the punishment for this crime was an 
 ignominious burial in the highway, without Christian 
 rites, with a stake driven through the body ; and the 
 vicarious punishment of his friends by the forfeiture of 
 all his goods and chattels to the Crown. But now the 
 only consequence is the denial of Christian burial, the 
 feh de se being buried in the churchyard or other bury- 
 ing ground, within twenty-four hours after the inquest, 
 between the hours of nine and twelve at night (a). 
 The forfeiture has been done away with in this as well 
 as in other kinds of felony (b). 
 
 (2) S. V. Lysm, E. & E. 523. "" ' 
 
 (a) 4 Geo. 4, c. 52, s. 1. 
 
 (6) 33 & 34 Vict. c. 23. "Suicide may he wicked, and is certainly 
 injurious to society, but it is so in a much less degree than murder. The 
 
HOMICIDE. 155 
 
 An attempt to commit suicide is not an attempt Attempted 
 to commit murder within the Offences against the ^"'"'''-'• 
 Person Act (e), but still remains a common law misde- 
 meanor. 
 
 The felonious killing of another is either murder or Felonious 
 manslaughter. In dealing with the crime of murder, ''"4?^ "^ 
 
 i ,,...,, ° , , , another. 
 
 we snail anticipate, to some extent, the law of man- 
 slaughter, a great part of the law on the subject con- 
 sisting in a distinction of the two crimes. 
 
 MUEDEE. 
 
 Murder is popularly regarded as the gravest crime Murder, vanes 
 known to the law. As a rule it would occupy the '? ''^ '"°''*^ 
 same position, regarded both from a moral and from a 
 legal point of view. But that this is not always the 
 case an example will serve to shew. Both of the follow- 
 ing acts are murder, and punishable by death. A man, 
 having received a slight insult from another, dogs his 
 path for six months, and, with all circumstances of 
 aggravation, kills him in cold blood. A man carrying 
 a gun sees a hen and resolves to shoot and then appro- 
 priate it ; he shoots, and by accident wounds a person 
 who has come upon the scene ; the wounded man dies' 
 nine months afterwards, though his life might have 
 been saved if he had submitted to an operation, or if 
 the physician had been more skilful. But, on the other 
 hand, there is one mode of depriving of life which is at 
 least equally culpable, viewing the matter morally, 
 but which is not regarded as murder, namely, taking 
 away a man's life by perjury {d). 
 
 injury to the person killed can neither be estimated nor taken into account. 
 The injury to survivors is generally small. It is a crime which produces 
 no alarm, and which cannot be repeated. It would, therefore, be better 
 to cease altogether to regard it as a crime, and to provide that anyone 
 who attempted to kill himself, or who assisted any other person to do so, 
 should be liable to secondary punishment." — Fitz. St. 121. 
 
 (c) 24 & 25 Vict. 0. 100, s. 15. 
 
 (d) B. V. Macdanicl, Post.- 131. 
 
156 HOMICIDE. 
 
 Definition of We may adopt Coke's definition of murder for the 
 murder. purpose of explaining the crime. " When a person of 
 
 sound memory and discretion unlawfully killeth any 
 reasonable creature in being and under the king's 
 peace with malice aforethought, either express or im- 
 plied" (e). 
 
 Tiie sanity, &c., (a.) The offender must he of sound memory and dis- 
 ci the ofifender. cretion. — Thus are excluded all idiots, lunatics, and 
 infants, in accordance with the rules as to capability 
 of committing crimes which have already been set 
 forth (/). To which we may add, that a person 
 would be guilty of manslaughter at the most if he 
 were not conscious that the act done was one which 
 would be likely to cause death (g). Of course the 
 person procuring an idiot to. commit murder, or, indeed, 
 any crime, is guilty himself of the crime. 
 
 The unlawful (b.) Unlawfully Mlleth, that is, kills without justifi- 
 
 kiiiing. cation or excuse. — As we have seen, the presumption is 
 
 against the accused, and it is for him to purge the act 
 
 of its felonious character by proving such justification 
 
 or excuse. 
 
 The form of It is perfectly immaterial what may be the particular 
 ^^' ■ form of death, whether poisoning, striking, starving, 
 
 drowning, or any other (h). Any act, the probable 
 consequence of which may be, and eventually is, death, 
 is murder, though no stroke be struck, and, what is 
 more noticeable, though the killing be not primarily 
 intended ; for example, when a mother hid her child in 
 a pig- stye, where it was devoured (t). So if one, under 
 a well-grounded apprehension of personal violence, 
 does an act which causes his death, as for instance, 
 
 (e) 3 Inst. 47. 
 
 (/) V. p. 19. 
 
 (a) H. V. Vamplew, 3 F. & F. 520. 
 
 (A) As to swearing away a man's life, r. p. 83, u. 
 
 (0 1 Hale, P. C. 433. 
 
HOMICIDE. 157 
 
 jumps out of a window, he who threatens is answer- 
 able for the consequences (h). A person may also be 
 guilty through mere nonfeasance ; as if it was his duty 
 and in his power to supply food to a child unable to 
 provide for itself, and the child died because no food 
 was supplied (I). 
 
 It is no defence to shew that the deceased was in ill- The cause of 
 health and likely to die when the wound was given (m). ''^*"'- 
 Nor is it a defence that the immediate cause of death 
 was neglect on the part of the doctor, or the refusal 
 of the party to submit to an operation; though it 
 would be otherwise if the death were caused by impro- 
 per applications to the wound, and not the wound 
 itself (n). To make the killing murder the death The time of 
 must follow within a year and a day after the stroke '^'**''' 
 or other cause; for if the death is deferred for that 
 length of time, the law will presume that it arose from 
 some other cause. 
 
 If a person is indicted for one species of killing, e.g., Variance as to 
 poisoning, he cannot be convicted by evidence of a j''^.?'™ "^ 
 totally diflferent species of death, e.g., starving. But if 
 the difference consists only in a detail, e.g., whether 
 the instrument was a sword or an axe, this is im- 
 material. 
 
 As a general rule, proof is required of the finding of Finding of the 
 the body of the deceased. But this rule is not in- ^°^7- 
 flexible, as where the direct evidence brought before 
 the jury is sufficiently strong to satisfy them that a 
 murder has really been committed. 
 
 (c.) Any reasonable creature in heing and under the The person 
 king's feace. — 'Therefore killing a child in its mother's '''"^'^• 
 
 (k) B. V. Evans, 1 Kuss. 426. 
 (0 S. r. Friend, E. & E. 20. 
 (m) S. V. Martin, 5 C. & P. 130. 
 (n) B. V. Holland, 2 M. & R. 351. 
 
158 HOMICIDE. 
 
 womb is no murder (o), but it is otherwise if the child 
 is born alive and dies from wounds or drugs received 
 in the womb. " Under the king's peace " excludes only- 
 alien enemies who are actually engaged in the exercise 
 
 of war (p). 
 
 * 
 Murder- (d.) With molice aforethought. — The term " malice " 
 
 malice. jg g^ jj^^gj. ^i^jguit one. It is used in various and 
 
 conflicting senses, and the mind is apt to slide from the 
 one to the other. The simple etymological significa- 
 tion of " wickedness " may generally be disregarded. In 
 another sense, as we have seen (q), malice, taken as equal 
 to criminal intention, is of the essence of every crime. 
 Therefore this view of the word will not serve to dis- 
 tinguish one crime from another. The murder-malice 
 is usually described as " aforethought " or "prepense," 
 but this addition, in itself, will not help us to any better 
 understanding of the state of mind required to consti- 
 tute murder (*•). 
 
 That this malice aforethought is not what its name 
 seems to imply — malevolence or ill-will towards the 
 deceased — is manifest, when we consider that perhaps 
 the majority of murders are committed with a view to 
 robbery ; or, again, when we remember that murder 
 can be committed though the murderer has not the 
 slightest wish to injure, or has not the slightest know- 
 ledge of the deceased, as in the case mentioned above 
 of shooting at the fowl ; nay more, we can conceive of 
 the case of a person being convicted of the murder 
 of his dearest friend or relative. "What, then, is this 
 
 (o) But V. p. 173. 
 
 (p) 1 Hale, P. C. 433. 
 
 (2) v. p. 13. 
 
 (r) " The word ' aforethought ' is unfortunate ; ' wilful and malicious ' 
 homicide would be better. The word 'aforethought' countenances the 
 popular error that a deliberate premeditated intent to kill is required in 
 order to constitute the guilt of murder, whereas it is only one out of 
 several states of mind which hare that effect. It is, moreover, an un- 
 meaning word, for the thought, the state of mind, whatever it is, must 
 precede the act; and it precedes it equally, whether the interval is a 
 second, or twenty years."— Fitz. St. 118. 
 
HOMICIDE. 159 
 
 superior degree of malice ? It may be said to be a 
 felonious design or intention in general. This inten- 
 tion may be sometimes regarded as unfixed or floating 
 (as in the fowl case). The deed causing death is done, 
 and at the same time to it is attached this moveable 
 quality. It must be noticed that this murder-malice 
 is not a motive. The motive is to get the gold, hatred, 
 &c. It is a difficult matter to give a description of 
 malice which will apply to all cases of murder, of 
 so various character are they, and so built up on in- 
 dividual decisions. 
 
 At the risk of confusing our idea of this essential Malice, express 
 of murder, we must mention the ordinary distinction ""^ ™^ '^^' 
 between express and implied malice. But here it will 
 be no easy matter to suppress the tendency to revert 
 to the moral view of malice, which is always lurking 
 about ready to make its appearance. 
 
 The true ground of distinction, if it is necessary to 
 make one, seems to have been apprehended in the 
 Indian Penal Code (s). 
 
 Express malice may be said to be the jposifoVe Express malice. 
 possession of an intention : — 
 
 i. Of causing death. 
 
 ii. Of causing such bodily injury as the offender 
 knows is likely to cause death, e.gi., beating with an iron 
 bar. 
 
 iii. Of causing bodily injury, and the bodily injury 
 intended to be inflicted is sufficient in the ordinary 
 course of nature to cause death (t). 
 
 (s) Article 300. 
 
 (t) Express malice is generally described as that "When one with a 
 sedate and deliberate mind, and formed design, doth kill another ; which 
 formed design is evidenced by external circumstances discovering that in- 
 ward intention ; as lying in wait, antecedent menaces, former grudges, and 
 concerted schemes to do him some bodily harm " (1 Hale, P. C. 451). But 
 this does not at all square with the legal idea of malice. 
 
160 HOMICIDE. 
 
 Implied malice. Implied malice may be said to be the possession of a 
 general intention of such a nature implied from the 
 acts of the offender, or the wanton running of a risk 
 by a person committing an act, who knows that it will 
 probably cause death, or bodily injury which may cause 
 death, without any excuse for incurring such risk (m). 
 
 Punishment. As to the punishment of murder, nothing further 
 need be said here than that the sentence is death (x) ; 
 with regard to which, and its execution, particulars 
 will be given in a later chapter. Accessories after the 
 fact to murder are liable to penal servitude to the 
 extent of life (y). 
 
 On an indictment for murder, the jury may convict 
 the prisoner of manslaughter, or, of course, of an attempt 
 to murder ; but not of an assault {z). 
 
 MANSLAUGHTBE. 
 
 Manslaughter. The Unlawful killing of another without malice, 
 either express or implied. The malice referred to here 
 is the murder-malice, at the meaning of which we have 
 been endeavouring to arrive. 
 
 Moral cha- In this Crime, again, we shall find acts varying to the 
 
 racter of the utmost in their moral gravity and offensiveness. Per- 
 
 r.rimfi varies. ^ ** 
 
 haps on no other charge do persons more often appear 
 in the dock and leave it without a stain on their cha- 
 racters. To take one class of examples — it constantly 
 happens after an accident in a mine or on a railway 
 that some of those engaged in the management of the 
 
 («) The example usually given of implied malice, namely, that of a man 
 wilfully poisoning another, seems, indeed, to be a case of express malice, as 
 there most certainly is an evil intention present. The truth is, that in 
 this example also there is a recurrence, to the motive view of malice; in 
 fact, the authority (1 Hale, P. C. 455) proceeds, " In such a deliberate act 
 the law presumes malice, though no particular enmity can be proved." 
 
 (ic) 24 & 25 Vict. c. 100, ». 1. 
 
 ly) Ibid. s. 67. 
 
 («) As to conspiracy to murder, v. p. 124. 
 
 crime varies. 
 
HOMICIDE 161 
 
 one or the other are required to meet a charge of man- 
 slaughter which is preferred against them. 
 
 Two kinds of manslaughter are distinguished : — 
 
 i. Upon a sudden heat (termed voluntary). 
 
 ii. In the commission of an unlawful act (termed 
 involuntary) , (a). 
 
 i. Voluntary (so-called).— The distinguishing mark Voluntary 
 of this sort of manslaughter is the provocation giving manslaughter, 
 rise to sudden anger, during which the deed causing 
 death is done. If upon a sudden quarrel two persons 
 fight and one of them kills the other, the former will 
 be guilty of manslaughter only, unless there are special 
 circumstances which indicate evil design. But the act 
 will be viewed in the less serious light of manslaughter 
 only as long as the outburst of passion continues ; not 
 that the struggle need take place on the spot, for if 
 the two at once adjourn to another place to fight, it 
 will still be only manslaughter. So, also, in other cases 
 of grave provocation, as if one man pulls- another's 
 nose, or is taken in adultery with another's wife. But 
 here again, on the same grounds, to reduce the homi- 
 cide to manslaughter, the cause of death must be 
 inflicted at once, whilst the provocation is still exer- 
 cising its full influence. Otherwise the slaying will be 
 regarded as a deliberate act of revenge (6). It is need- 
 less to add that the plea of provocation will not avail if 
 the provocation was sought for and induced by the 
 slayer. 
 
 The instrument used when the person is acting under The instru- 
 provocation is also a material consideration. It may be materia?'^ oTnt 
 
 (a) The objectlonableness of the term " roluntary " and " inroluntary," 
 as opposed to each other, to denote varieties of the same crime, is obvious. 
 There is no such thing as an involuntary crime. If the action be not a 
 voluntary one it is not criminal (v. p. 12). What seems to be meant is 
 that in the one case death is anticipated, in the other it is not. 
 
 (6) S. V. Hayward, 6 C. & P. 157. 
 
 M 
 
1"62 HOMICIDE. 
 
 said that the proToeation must be of the gravest nature 
 to render guilty of manslaughter only one who uses a 
 deadly weapon, or otherwise shews an intention to do 
 the deceased grievous bodily harm. But a slighter 
 provocation will suffice if the instrument used is one 
 not likely to cause death, as a stick, or a blow with 
 the fist. In fact the mode of resentment must bear a 
 reasonable proportion to the provocation to reduce the 
 offence to manslaughter (e). 
 
 Manslaughter Manslaughter is to be distinguished from homicide 
 from homi'dde ^^ self-defcnce on sudden affray. In the latter, the 
 in self-defence, ground for the blow, &c., is the necessity to take such 
 a step for self-preservation ; in the former, this neces- 
 sity does not exist, but its place is taken by a sudden 
 accession of ill-will. 
 
 Involuntary ii. Involuntary (so-called) when the death, not being 
 manslaughter, intended, is causod in the commission of an unlawful 
 act. By this is meant that the unlawfulness of the 
 act in which the accused is engaged is the ground 
 of the homicide being regarded as manslaughter, and 
 not homicide by misadventure merely. In the cases 
 mentioned above under voluntary manslaughter, the 
 death is caused by an unlawful act, but there that is 
 not the distinguishing mark of the manslaughter. By 
 " unlawful " here must be understood what is malum 
 in se, and not what is merely malum quia prohibitum. 
 Thus, then, if a man shooting at game by accident kills 
 another, it is homicide by misadventure only, even 
 although the party is not qualified (d). 
 
 Tbf. unlawful Here, again, we may observe that it is immaterial 
 
 "*''■ whether the unlawfulness is in the act itself or (that 
 
 which comes to the same thing) in the mode in which 
 
 it is carried out. It must also be borne in mind that 
 
 (c) S. V. Steadman, Fost. 292. 
 
 (d) Fost. 259. 
 
HOMICIDE. 163 
 
 if the unlawful act is a felony, the homicide amounts 
 to murder. An instance of manslaughter in the com- 
 mission of an unlawful act is furnished when one person 
 kills another while the two are playing at an unlawful 
 game ; of manslaughter in doing a lawful act in an un- 
 lawful manner, — when a workman throws down stones 
 into a street where persons may but are not likely to 
 he passing. 
 
 One form of doing an act in an unlawful manner is Manslaughter 
 negligence. This consideration very frequently presents negligence, 
 itself in manslaughter. It may be said generally that 
 whatever constitutes murder when done by fixed design, 
 constitutes manslaughter when it arises from culpable 
 negligence ; for example, when a near-sighted m|in 
 drives at a rapid rate, sitting at the bottom of his cart, 
 and thereby causes the death of a foot-passenger (e). 
 A large class of cases is that in which the death ensues 
 from the treatment of disease. The man, whether a 
 medical practitioner or not, is not indictable unless his 
 conduct is marked by gross ignorance or gross in- 
 attention (/). With regard to negligence, there is a 
 great difference between criminal and civil proceedings. 
 The criminal law does not recognize the defence of 
 contributory negligence in manslaughter {g). 
 
 It is commonly said that in manslaughter there can Accessories 
 be no accessories before the fact, because the act ''^^™^ ""' ''*°*' 
 causing death is done without premeditation. But 
 though this may be true in cases the gist of which 
 is the sudden heat, it is easy to imagine cases in which 
 this principle could not be maintained (h). 
 
 Manslaughter is a felony, punishable by penal servi- ^Punishment. 
 
 (e) V. S. V. Walker, 1 C. & P. 320. 
 
 (/) B. T. Long, 4 C. & P. 398. 
 
 (g) R. V. Smndall, 2 C. & K. 230; S. v. Jones, 11 Cox, 544. For other 
 classes of acts which amount to manslaughter, the reader is referred to 
 the classitication of intents given below. 
 
 (A) V. Jt, T. Gaylor, cited above, p. 35. 
 
 M 2 
 
164 HOMICIDE. 
 
 tude to the extent of life— or in lieu of, or in addition 
 to, the penal servitude or imprisonment, a fine may- 
 be imposed (i). Cases of mere carelessness, &c., legally 
 amounting to manslaughter, are often more appro- 
 priately punished by pecuniary fine than by the indig- 
 nity of imprisonment. 
 
 Having inquired into the nature of the crimes of 
 murder and manslaughter, we are now in a position to 
 examine certain classes of acts, and determine by the 
 circumstances whether they fall under the head of 
 murder, manslaughter, or excusable homicide. 
 
 Fighting. Killing by Fighting : — 
 
 i. Murder — Deliberately fighting a duel — or after 
 time for cooling— or under any other circumstances 
 indicating deliberate ill-will. 
 
 ii. Manslaughter — In a sudden quarrel where the 
 parties immediately fight — or where, the parties are 
 fighting in an unlawful amusement. 
 
 iii. Excusable — In a sparring match with gloves, or 
 other lawful amusement, fairly conducted in a private 
 room. 
 
 Correction. Killing by Correction : — 
 
 i. Murder — With weapon likely to cause death, e.g., 
 an iron bar. 
 
 ii. Manslaughter — With an instrument not lijiely to 
 kill, though improper for use in correction — or where 
 the quantity of punishment exceeds the bounds of 
 moderation. 
 
 iii. Excusable — Correcting in moderation a child, 
 servant, scholar, or criminal intrusted to one's charge. 
 
 (0 24 & 25 Vict. Q. 100, s. 5. 
 
HOMICIDE. 165 
 
 Killing without intending! to kill whilst doing another in doing an 
 
 J . unlawful act. 
 
 i. Murder — If that other act is a felony. 
 
 ii. Manslaughter — If that other act is unlawful, i.e., 
 malum in se. ^ 
 
 iii. Excusable — If that other act is lawful, i.e., not 
 malum, in se. 
 
 [But see next paragraph.] 
 
 Killing whilst doing a lawful but dangerous act,, e.g., in doing a 
 
 driving :— ^ dangerous act. 
 
 i. Murder — If he perceives the probability of the 
 mischief, and yet proceeds with his act, 
 
 ii, Manslaughter — If he might have seen the danger 
 if, as he ought to have done, he had looked before 
 him — or if, though he previously gave warning, this 
 warning was not likely to prove entirely effectual, e.g., 
 driving in a crowded street. 
 
 iii. Excusable — If he uses such a degree of caution 
 as to make it improbable that any danger or injury 
 will arise to others. 
 
 Killing officers or others engaged in effecting the ends Homicide of 
 
 of justice:— officers, &c. 
 
 i. Murder — If the officer or other person is acting 
 with due legal authority, and executing such authority • 
 in a legal manner, the defendant knowing that autho- 
 rity — or, in the case of a private person interfering, the 
 intention of such person being intimated expressly. 
 
 ii. Manslaughter — If any one of these requisites is 
 absent (Jc). 
 
 (A) " The guilt of the offender may thus depend entirely upon nice and 
 difficult questions belonging to the civil branch of the law, such as the 
 technical regularity of civil process, or the precise duty of a minister of 
 justice in its execution." — Broom, C. L. 908. 
 
166 HOMICIDE. 
 
 By officers, &c. Killing by officers and others in the nominal execution 
 of their duty : — 
 
 i. Murder — ^If the killing happens in the pursuit of 
 a person not resisting, but fleeing, such person being 
 charged with a misdemeanor only, or the arrest being 
 only in a civil suit. 
 
 ii. Manslaughter — As above, if the death is caused 
 by means not likely or intended to. kill — or if, in an 
 apprehension for felony, there is no need for the violence 
 used by the officer. 
 
 iii. Justifiable — If the officer or other is resisted in 
 the legal execution of his duty, and this in civil as 
 well as in criminal cases — if a felon or giver of a 
 dangerous wound cannot be otherwise apprehended, 
 though he does not resist but only flees (I). 
 
 ATTEMPT TO MUEDER. 
 
 Attempt to This Crime is frequently described by the judges as 
 
 murder. ^^^^ ^^ actual completed murder, the most serious crime 
 
 known to the law. The Ofi'ences against the Person 
 Act, 1861, deals in several sections with attempts to 
 murder effected in various ways. The punishment in 
 every case is the same, namely, penal servitude to the 
 extent of life. Why the last and general section would 
 not suffice if it stood alone, inasmuch as it compre- 
 hends all the others, and awards the same punishment, 
 it is hard to conceive (m). The various attempts 
 specified are the following : — 
 
 Administering poison,, wounding, or causing grievous 
 bodily harm, with intent to murder (w). 
 
 (T) V. Appendix at end of chiipter. 
 
 (m) "The subdivision of the enactments is highly characteristic of 
 English law, and is not without interest as a memorandum of the suc- 
 cessive steps by which the law was brought into the present shape." 
 — Fitz. St. 48. 
 
 (n) 24 & 25 Vict. vj. 100, =,. 11. 
 
HOMICIDE. 167 
 
 Attempting to poison, shoot, drown, suffocate, or 
 strangle, with like intent, whether any bodily injury 
 be effected or not (o). 
 
 Destroying or damaging any building by gunpowder 
 or other explosive substance, with like intent (p). 
 
 Setting fire to any vessel or its belongings, or casting 
 away or destroying any vessel, with like intent (q). 
 
 Attempting to murder in any other way (r). 
 
 APPENDIX. 
 
 The importance of a clear apprehension of the state Becapituiation 
 of the law as to what acts are murder, manslaughter, betwten'^''™^ 
 and non-felonious homicide respectively, makes it not murder, man- 
 impertinent to insert the following compilation of dis- noT-feionious 
 tinctions judicially laid down on the subject, made by homicide. 
 Sir James Stephen (Gren. View of Orim. Law, 116) : — 
 
 " The following states of mind have been specifically Murder. 
 determined to be wicked or malicious in the degree 
 necessary to constitute murder : 
 
 " (a.) An intent to kill, whether directed against the 
 person killed or not, or against any specific person or 
 not. 
 
 " (b.) An intent to commit felony. 
 
 " (c.) An intent illegally to do great bodily harm. 
 
 " (d.) Wanton indifference to life in the performance 
 of an act likely to cause death, whether lawful or not. 
 
 " (e.) A deliberate intent to fight with deadly 
 weapons. 
 
 (o) 24 & 25 Vict. u. 100, s. 14. 
 (p) Ibid. =,. 12. 
 (?) Ibid. s. 13. 
 (r) Ibid. s. 15. 
 
168 HOMICIDE. 
 
 "(f.) An intent to resist a lawful apprehension by 
 any person legally authorized to apprehend. 
 
 Manslaughter. " The following states of mind have been determined 
 to constitute that lighter degree of malice which is 
 necessary to the crime of manslaughter •: 
 
 " (a.) An intent to kill under the recent provocation, 
 either of considerable personal violence inflicted on the 
 prisoner by the deceased, or of the sight of the act of 
 adultery committed by the deceased with the prisoner's 
 wife. 
 
 " (b.) An intent to inflict bodily injury not likely to 
 cause death under a slight provocation, as when a man 
 striking a trespasser with a slight stick kills him. 
 
 " (c.) A deliberate intent to fight in a manner not 
 likely to cause death, or an intent to use a deadly 
 weapon in a fight begun without the intention to use 
 
 it. 
 
 " (d.) An intent to resist an unlawful apprehension, 
 or an apprehension of the lawfulness of which the 
 prisoner had no notice. 
 
 " (e.) An intent to apprehend, or otherwise to exe- 
 cute legal process executed with unnecessary violence. 
 
 " (f.) Negligence in doing a lawful act, or an unlaw- 
 ful act not amounting to felony. 
 
 Non-felonious " The following states of mind have been held not to 
 homicide. ^g malicious or wicked at all, and when any of them 
 
 exist at the time when death is caused no crime is 
 
 committed : 
 
 " (a.) An intent to execute sentence of death. 
 
 " (b.) An intent to defend person, habitation, or pro- 
 perty against one who manifestly intends, or endeavours 
 by violence or surprise, to commit a known {i.e., appa- 
 rent) felony, such as rape, robbery, arson, burglary, &c. 
 
HOMICIDE. 169 
 
 " (c.) An intent lawfully to apprehend or keep in 
 custody a felon who cannot otherwise be apprehended 
 or kept in custody, or to keep the peace if it cannot 
 otherwise be kept. 
 
 " (d.) Absence of all unlawful or malicious intents 
 or states of mind. (This is the case of accident)." 
 
( 170 ) 
 
 Definition of 
 rapa. 
 
 Persons who 
 cannot be con- 
 victed of the 
 
 Essentials of 
 the crime. 
 
 CHAPTEE II. 
 
 EAPE, ETC. 
 EAPE. 
 
 The offence of having carnal knowledge of a woman by 
 force against her will. 
 
 Certain persons cannot be convicted of this crime. 
 An infant under the age of fourteen is deemed in law 
 to be incapable of committing this offence, on account 
 of his presumed physical incapacity. And this is a 
 presumption which cannot be rebutted by evidence of 
 capacity in the particular case. Neither can a husband 
 be guilty of a rape upon his wife. But both a husband 
 and a boy under fourteen may be convicted as prin- 
 cipals in the second degree, and may be punished for 
 being present aiding and abetting. 
 
 To constitute the offence, the act must be committed 
 by force, and without the consent of the female. If, 
 however, she yielded through fear of death or duress, 
 it is nevertheless rape ; for here the consent is at most 
 imperfect. But the crime is not committed if she is 
 beguiled into consent by some fraud or artifice; for 
 example, under the representation that the offender 
 was her husband. In such case the proper course is to 
 indict the offender for an assault (s). It is equally 
 rape though the female is a common prostitute or the 
 concubine of the prisoner ; but circumstances of this 
 nature will probably operate with the jury in their 
 consideration as to whether there was consent. It is 
 
 (s) B. V. ■Williams, 8 C. & 1'. 
 
RAPE, ETC. 171 
 
 necessary to prove penetration, but not anything 
 further {t). If the prosecution fail to prove this, the 
 prisoner may nevertheless be convicted of the attempt. 
 
 At almost every trial for this crime the words of Sir Credibility of 
 Matthew Hale are recalled : " It is an accusation easy of^thrwrman. 
 to be made and hard to be proved, but harder to be 
 defended by the party accused, though innocent." It 
 will be well to estimate the degree of credibility of the 
 testimony of the woman, for of course she is a compe- 
 tent witness. On this point we cannot do better than 
 remember the words of Blackstone (m). The credi- 
 bility of her testimony, and how far she is to be 
 believed, must be left to the jury upon the circum- 
 stances of fact that concur in that testimony. For 
 instance, if the witness be of good fame ; if she pre- 
 sently discovered the offence and made search for the 
 offender; if the party accused fled for it; these and 
 the like are concurring circumstances, which give 
 greater probability to her evidence. But, on the other 
 side, if she be of evil fame, and stand unsupported by 
 the testimony of others ; if she concealed the injury 
 for any considerable time after she had opportunity to 
 complain ; if the place where the fact was alleged to 
 have been committed was where it was possible she 
 might have been heard, and she made no outcry ; these 
 and the like circumstances carry a strong, but not 
 conclusive, presumption that her testimony is false or 
 feigned. The prisoner may call evidence to her gene- 
 rally bad character for want of chastity or indecency, 
 and of her having had connection with him previously, 
 but not of her having had connection with others. As 
 to the last point she may be asked the question, but is 
 not compelled to answer it ; if she denies it, the person 
 referred to cannot be called to contradict her (x). 
 
 (t) 24 & 25 Vict. i;. 100, s. 63. 
 
 (m) 4 Bl. 213. 
 
 (a) R. V. Holmes, L, R. 1 C. C. R. 334; 41 L. J. (M.C.) 12. 
 
172 
 
 BAPE, ETC. 
 
 The punishment for this crime, which is a felony, 
 is penal servitude to the extent of life (y). 
 
 CABNALLY ABUSING OHIIDBEN. 
 
 Carnally To Unlawfully and carnally know and abuse any girl, 
 
 chUdrfn. if she is under the age of twelve years, is a felony, 
 punishable by penal servitude to the extent of life ; if 
 between twelve and thirteen, it is a misdemeanor, pun- 
 ishable by imprisonment not exceeding two years {z). 
 
 In this oflFence it is immaterial whether the act were 
 done with or without the consent of the child. She 
 may be a witness on her oath if she appears sufSciently 
 to understand the nature and obligation of an oath. 
 
 Procuring Another offence may be noticed here : — By false pre- 
 
 toVa vl™n-''^ tences, false representations, or other fraudulent means, 
 nection, &c. to procure any female under the age of twenty-one 
 years to have illicit carnal connection with any man is 
 a misdemeanor, punishable by imprisonment not exceed- 
 ing two years (a). 
 
 Indecent 
 assault, &c. 
 
 To commit an indecent assault upon any female, or 
 to attempt to have carnal knowledge of a girl under 
 twelve years of age, is a misdemeanor, punishable by 
 penal servitude not exceeding two years (b). 
 
 Sodomy and 
 beastiality. 
 
 UNNATUBAL CEIMES. 
 
 To commit the crime against nature, with mankind 
 or with any animal, is a felony, punishable by penal 
 servitude ; the penal servitude may extend to life, but 
 may not be less" than ten years (c). The evidence is 
 
 (i/) 24 & 25 Vict. c. 100, s. 48. 
 (z) 38 & 39 Vict. c. 94. 
 
 (a) 24 & 25 Vict. o. 100, s. 49. 
 
 (b) Ibid. s. 52. ' 
 
 (c) Ibid. s. 61. 
 
EAPE, ETC. 173 
 
 the same as in rape, with two exceptions : (a) It is not 
 necessary to prove the offence to have been committed 
 without the consent of the person upon whom it was 
 perpetrated, (b) Both parties, if consenting, are 
 equally guilty ; but if one of the parties is a boy under 
 the age of fourteen years, it is felony in the other only. 
 
 -To attempt to commit the said crime, or to make Attempt, &c. 
 an assault with intent to commit the same, or to make 
 any indecent assault upon a male person, is a misde- 
 meanor, punishable by penal servitude to the extent of 
 ten years {d). 
 
 ATTEMPTS TO PKOOTJEE ABORTION. 
 
 Three classes of persons may be guilty of crimes Attempt to 
 under this heading. The woman herself — the person ^bortUm 
 who procures or supplies the drug, &c. — some other 
 person. 
 
 For a woman being with child, with intent to pro- by the woman, 
 cure her own miscarriage, to administer to herself 
 any poison or other noxious drug, or to use any instru- 
 ment or other means ; or 
 
 For any person to do the same with intent to procure by some other 
 the miscarriage of any woman, whether she be with P^"""' 
 child or not, is a felony, punishable by penal servitude 
 to the extent of life (e). 
 
 For any person to procure or supply poison or other Supplying the 
 noxious thing, or any instrument or other thing, know- ™^'"'^' 
 ing that the same is intended to be unlawfully used 
 with intent to procure the miscarriage of a woman, is 
 a misdemeanor, punishable by penal servitude to the 
 extent of five years (/). 
 
 (d) 24 & 25 Vict. c. 100, s. 62. As to obtaining money by threatening 
 to accuse of this crime, v. p. 104. 
 
 (e) Ibid. s. 58. 
 (/) Ibid. s. 59. 
 
174 
 
 BAPE, ETC. 
 
 Concealment of 
 birth. 
 
 What must be 
 proved. 
 
 CONCEALMENT OF BIRTH. 
 
 If a woman is delivered of a child, every person who 
 by any secret disposition of the dead body of the child, 
 whether it died before, at, or after its birth, endeavours 
 to conceal the birth thereof, is gailty of a misdemeanor, 
 punishable by imprisonment not exceeding two years. 
 A person tried for and acquitted of murder may be 
 sentenced for concealment of birth, if the facts justify 
 that conclusion {g). 
 
 The denial of the birth only is not sufficient. There 
 must be some act of disposal of the body after the child 
 is dead (h). In order to convict a woman of attempting 
 to conceal the birth of her child, a dead body must be 
 found and identified as that of the child of which she 
 is alleged to have been delivered (i). It will be noticed 
 that the offence may be committed by others, and not 
 only by the mother. 
 
 ABDUCTION. 
 
 Abduction. We may distinguish three classes of cases : — 
 
 i. Of a woman on account of her/or<Mwe. 
 
 On account of 
 the woman's 
 fortune. 
 
 Where a woman of any age has any interest (legal 
 or equitable, present or future, absolute, conditional, or 
 contingent) in any real or personal estate, or is a pre- 
 sumptive heiress or co-heiress, or presumptive next of 
 kin to anyone having such interest — (a) whosoever, 
 from motives of lucre, takes away or detains such woman 
 against her will, with intent himself, or to cause some 
 other, person, to marry her, or have carnal knowledge 
 of her — or (b) whosoever ' fraudulently allures, takes 
 away, or detains such woman, being under the age of 
 
 ((/) 24 & 25 Vict. c. 100, s. 60. 
 (A) R. V. Turner, 8 C. & P. 755. 
 (i) B. V, Williams, 11 Cox, 684. 
 
RAPE, ETC. 175 
 
 twenty-one, out of the possession or against the will of 
 her father or mother, or other person having the lawful 
 care or charge of her, with like intent, is guilty of a 
 felony, punishable by penal servitude to the extent of 
 fourteen years. The convicted person is also rendered 
 incapable of taking any interest in her property ; and 
 if he is married to her, the property will be settled as 
 the Chancery Division, upon an information at the 
 suit of the Attorney-General, appoints (k). The intent 
 to marry or have carnal knowledge need only be proved, 
 not the carrying out of that intent. The wife is a 
 competent witness either for or against the prisoner. 
 
 ii. By /orce with intent to marry. 
 
 The same punishment attends the forcible taking By force, with 
 away or detaining against her will a woman of any age, '°'*°* *" 
 with intent to marry or carnally know her, or cause 
 her to be married or carnally known by any other 
 person (I). 
 
 iii. Of a girl under sixteen years of age. 
 
 To unlawfully take or cause to be taken any unmarried Of girl under 
 girl under the age of sixteen out of the possession and ^"^'■**°- 
 against the will of her father or mother, or of any other 
 person having the lawful care or charge of her, is a 
 misdemeanor, punishable by imprisonment not exceed- 
 ing two years (m). 
 
 If the girl leaves her father, &c., without any induce- Who are within 
 ment on the part of the defendant, and then goes to him, ^"^'^ provision. 
 he is not within the statute (w). Nor is he, if he did not 
 know, and had no reason to know, that she was under 
 
 (*) 24 & 25 Vict. c. 100, s. 53. 
 
 (0 Ibid. s. 54. 
 
 (m) Ibid. s. 55. 
 
 (») S. V. Olifier, 10 Cox, 402. 
 
176 EAPE, ETC. 
 
 the lawful charge of the father or other person (o). 
 Of course mere absence for a temporary purpose and 
 with intention of returning does not interrupt the 
 possession of the father, &Ci It is no defence that the 
 defendant did not know her to be under sixteen, or 
 might suppose from her appearance that she was older, 
 or even that he believed that he knew she was over 
 that age (p). A taking by force is not necessary to 
 constitute the offence. It is immaterial whether there 
 be any corrupt motive, whether the girl consent, and 
 whether the defendant be a male or female (q). 
 
 CHILD-STEALING, ABANDONING, ETC. 
 
 Child-stealing. To unlawfully, either by force or fraud, lead or take 
 away, or decoy or entice away, or detain a child under 
 the age of fourteen years, with intent to deprive the 
 parent, or other person having lawful care or charge, 
 of the possession of the child, or with intent to steal 
 any article upon or about the child ; or, with any such 
 intent, to receive or harbour any such child, knowing 
 the same to have been so led away, &c., is a felony, 
 punishable by penal servitude to the extent of seven 
 years. But persons claiming any right to the posses- 
 sion of the child do not fall within the statute {r). 
 
 Child-abandon- To Unlawfully abandon or expose any child under 
 mg, or ex- ^j^^ ^^^ ^^ j^^^ years in such manner that its life is 
 endangered or its health is, or is likely to be, perma- 
 nently injured, is a misdemeanor, punishable by penal 
 servitude to the extent of five years (s). 
 
 (o) S. V. Hibbert, L. R. 1 C. C. R. 184; 38 L. J. (M.C.) 61. 
 (p) S. V. Prince, L. K. 2 C. C. K. 154 ; 44 L. J. (M.C.) 122. 
 (?) iJ. T. Handley, 1 K. & F. 648. 
 (r) 24 & 25 Viet. c. 100, s. 56. 
 
 (s) Ibid. s. 27 ; v. S. v. Falkmgham, L. R. 1 C. C. R. 222 ; 39 L. J. 
 (M.C.) 47, shewing how little will warrant a conviction. 
 
( 177 ) 
 
 CHAPTEE III. 
 
 ASSAULTS, ETC. 
 
 Undeb this head we shall consider all the remaining 
 offences against the person. 
 
 COMMON ASSAULT. 
 
 An assault is an attempt or offer to commit a forcible Assault. 
 crime against the person of another ; for example, pre- 
 senting a loaded gun at a person. It will be noticed 
 that there need not be an actual touching of the per- 
 son assaulted. But mere words neTer amount to an 
 assault (t). 
 
 The unlimited character of this crime makes it a Comprehen- 
 conyenient means of punishing a variety of crimes sireness of the 
 which do not at first sight seem to be assaults, at least 
 not in the popular signification of the term ; for ex- 
 ample, putting a child into a bag, hanging it on some 
 palings, and there leaying it (m). 
 
 A hattery is not necessarily a forcible striking with Battery. 
 the hand or stick or the like, but includes eyery touch- 
 ing or laying hold (howeyer trifling) of another person, 
 or his clothes, in an angry, reyengeful, rude, insolent, 
 or hostile manner ; for example, jostling another out 
 of the way. Thus, if a man strikes at another with a 
 cane or fist, or throws a bottle at him, if he miss, it is 
 an assault ; if he hit, it is a hattery. 
 
 (t) 1 Hawk. li. 62, s. 1. 
 
 (m) E. v. March, 1 C. & K. 496. 
 
178 
 
 ASSAULTS, ETC. 
 
 Effect of 
 consent. 
 
 Assault the 
 subject also of 
 civil proceed- 
 ings. 
 
 As a rule, consent on the part of the complainant 
 deprives the act of the character of an assault, unless, 
 indeed, non-resistance has been brought about by- 
 fraud. But the fact of consent will in general be 
 immaterial when an actual battery or breach of the 
 peace has been committed (x). 
 
 A common assault is also the subject of a civil action 
 for damages ; and the party injured may either prose- 
 cute or bring his action first. The court will not, 
 however, pass judgment during the pendency of a civil 
 action for the same assault («/), the reason obviously 
 being that otherwise the issue of the civil action might 
 be prejudiced. 
 
 Punishment, or 
 compensation. 
 
 A common assault, that is, a mere assault which may 
 or may not have proceeded to a battery, is a misde- 
 meanor, punishable by imprisonment not exceeding 
 one year (z). But the justice of the case is often more 
 adequately met by compensation to the person injured. 
 Therefore, with the assent of the prosecution, if the 
 circumstances appear to warrant that course, the court 
 may allow the defendant to plead guilty, and inflict 
 upon him a merely nominal fine, on the understanding 
 that he shall make a compensation to the prose- 
 cutor (a). 
 
 Summary 
 proceedings. 
 
 Common assaults are usually disposed of by the 
 magistrates assembled at petty sessions. The limit of 
 punishment in ordinary cases of such summary con- 
 viction is a fine of £5 or imprisonment not exceeding 
 two months ; but in some more serious cases of assault 
 upon females or boys whose age does not exceed four- 
 teen years, the limits are £20 and six months (6). The 
 
 (x) Broom, 917. 
 
 (y) B. Y. Mahon, 4 A. & E. 575. 
 
 (!> 24 & 25 Vict. c. 100, s. 47. 
 
 (a) E, V. Roxburgh, 12 Cox, 8. 
 
 (6) 24 & 25 Vict. c. 100, ss. 42, 43. 
 
ASSAULTS, ETC. • 179 
 
 magistrates have not power to hear and determine any 
 assault involying a question of title to lands, tene- 
 ments, or hereditaments, or any interest therein or 
 accruing therefrom, or as to any bankruptcy or insol- 
 vency, or any execution under the process of any court 
 of justice. And if the assault is accompanied by an 
 attempt to commit a felony, or, in the opinion of the 
 magistrates, is a fit subject for prosecution by indict- 
 ment, they may abstain from any adjudication and 
 leave the case to be prosecuted by indictment (c). 
 
 As to the evidence on the part of the accused, it Defence, 
 may be stated generally that the same facts which 
 would reduce a hoinicide to misadventure are a good 
 defence upon an indictment for a battery (d). Other 
 defences are, that it was committed merely in self- 
 defence, or in the proper administration of moderate 
 correction, or in the execution of public justice, or in 
 some lawful game. Inasmuch as it would not be right 
 that the defendant should be punished twice for the 
 same offence, it is a good defence that the matter has 
 been disposed of by two justices : provided that if the 
 defendant has been convicted he has paid the penalty 
 and suffered the imprisonment awarded ; if dismissed, 
 it does not matter whether it was on the ground of 
 justification, the trifling character of the offence, or 
 because it was not proved (e). 
 
 So much for common assaults ; we have now to deal 
 with those of an aggravated character. 
 
 ACTUAL AND GRIEVOUS BODILY HABM. 
 
 If the assault occasions actual hodily harm the Actual bodily 
 punishment is penal servitude to the extent of five ''^'™' 
 years (/) for the misdemeanor. Actual bodily harm 
 
 (c) 24 & 25 Vict. c. 100, s. 46. 
 Id) Arch. 695. 
 
 (e) 24 & 25 Vict. c. 100, ss. 44, 45. 
 (/) Ibid. s. 47. 
 
 N 2 
 
180 ASSAULTS, ETC. 
 
 would include any hurt or injury calculated to inter- 
 fere with the health or comfort of the prosecutor ; it 
 need not be an injury of a permanent character (g). 
 
 Wounding and Unlawfully and maliciously wounding or inflicting 
 ha TO°"^ ''"'^''y any grievous bodily harm upon any other person, with 
 or without any weapon or instrument, is a misde- 
 meanor, punishable by penal servitude to the extent of 
 five years Qi). If any person (a) wound, (b) cause 
 grievous bodily harm, (c) shoot at, or (d) attempt to 
 shoot at any other, person, with intent to (a) maim, 
 (b) disfigure, or (c) disable any person, or (d) to do 
 some other grievous bodily harm to him, or (e) to resist 
 or prevent the lawful apprehension of any one, he is 
 guilty of a felony, punishable by .penal servitude to the 
 extent of life (i). 
 
 Wound. To constitute a wou'hding, the continuity of the skin 
 
 must be broken. The nature of the instrument is im- 
 material, whether it be a stab by a knife, a kick, or a 
 gunshot wound, &c. iji). 
 
 Maim. Ilo' maim is to injure any part of a man's body, 
 
 which may render him less capable of fighting. The 
 injury is termed mayhem. 
 
 Disfigure, 
 disable. 
 
 The- term "disfigure" explains itself. To disable, 
 refers to the causing of a permanent, and not merely a 
 temporary disablement Q). 
 
 The grievous bodily harm need not be either per- 
 manent or dangerous, so long as it seriously interferes 
 with health or comfort (m). 
 
 (tj) Arch. 694. 
 
 (h) 24 & 25 Vict. c. 100, s. 20. 
 
 (i) Ibid. ». 18. 
 
 (A) JR. ». Wood, 1 Mood. C. C. 278; R. v. Briggs, Ibid. 318. 
 
 Q) M. V. Boyce, 1 Mood. C. C. 29. 
 
 (m) V. R. T. Ashman, 1 F. & F. 88. 
 
ASSAULTS, ETC. 181 
 
 The intent can of course only be proved by presump- The intent. 
 tiye eyidence gathered from the facts of the case. The 
 intent need not be to maim, &c., the particular person 
 who is injured ; thus, if a person intending to inflict 
 ■grievous bodily harm on A., wounds B., he is guilty of 
 wounding with intent, &c. (n). 
 
 ASSAULT WITH INTENT TO COMMIT A FELONY. 
 
 This crime is a misdemeanor, punishable with im- Assault with 
 prisonment not exceeding two years. If the intent f^j™'""^^ 
 cannot be proved, the defendant may be convicted of 
 a common assault (o). 
 
 ATTEMPT TO CHOKE, ETC., WITH INTENT, ETC. 
 
 Whosoever attempts to choke, suffocate, or strangle any Attempt to 
 other person, or by any means calculated to choke, &c., ^'^"^^^fgat &<, 
 renders any other person insensible, unconscious, or 
 incapable of resistance, with intent to enable himself or 
 any other person to commit, or assist in committing, 
 any indictable offence, is guilty of felony, and punish- 
 able with penal servitude to the extent of life, with or 
 without whipping in addition (js). 
 
 With like intent, to apply, or administer, or cause to To drug, &o., 
 be taken, or to attempt to administer, &c., or to attempt ^'"'i'^'™*' <=• 
 to cause to be administered, &c., any chloroform, laud- 
 anum, or other stupefying or overpowering drug, matter, 
 or thing, is a felony, punishable in the same way, with 
 the exception of the whipping (q). 
 
 ADMINISTEBING POISON, ETC. 
 
 To administer, &c., any poison, or other destructive Administering 
 or noxious thing, so as thereby to endanger life or to P"'*""' "■ 
 
 (n) R. V. Stopford, 11 Cox, 643. 
 
 (o) 24 & 25 Vict. c. 100, s. 38. 
 
 (p) 24 & 25 Vict. c. 100, s. 21 ; 26 & 27 Vict, c. 44. 
 
 (q^ 24 & 25 Vict. c. 100, s. 22. 
 
182 
 
 ASSAULTS, ETC. 
 
 inflict grievous bodily harm, is a felony, punishable by 
 penal servitude to the extent of ten years (r). If the 
 administering, though it does not so endanger life or 
 inflict harm, is with intent to injure, aggrieve, or 
 annoy the person, the offence is a misdemeanor, 
 punishable by penal servitude to the extent of five 
 years (s). A person indicted for the first offence may 
 be found guilty of the second (i). 
 
 Injuring by 
 explosive, 
 corrosive, or 
 other destruc- 
 tive sub- 
 stances. 
 
 EXPLOSIVE OR COKEOSIVB SUBSTANCES. 
 
 By explosion of gunpowder or other explosive sub- 
 stance, to burn, maim, disfigure, disable, or do any 
 grievous bodily harm to any person, is a felony, punish- 
 able by penal servitude to the extent of life (u). The 
 same punishment is awarded for causing any gun- 
 powder, or other explosive substance, to explode, or 
 sending or delivering to, or causing to be taken or re- 
 ceived by, any person, any explosive or other dangerous 
 or noxious thing, or putting or laying at any place, or 
 throwing at or upon, or otherwise applying to any 
 person any corrosive fluid or any destructive or ex- 
 plosive substance, with intent to burn, maim, disfigure, 
 or disable, or do any grievous bodily harm to any 
 person, and this whether any bodily injury be effected 
 or not (x). If the gunpowder or other explosive sub- 
 stance is placed in, thrown in, into, upon, against, or 
 near any building, ship, or vessel, with intent to do 
 any bodily injury to any person, whether such purpose 
 be effected or not, the offender is guilty of a felony, 
 punishable by penal servitude to the extent of fourteen 
 years (y). 
 
 (r) 24 & 25 Vict. c. 100, s. 23. 
 
 (s) Ibid. 5. 24. 
 
 (0 Ibid. s. 25. 
 
 (m) Ibid, s. 28. 
 
 Ix) Ibid. s. 29. 
 
 ()/) Ibid. a. 30. 
 
ASSAULTS, ETC. 
 
 ENDANGERING SAFETY OF RAILWAY PASSENGERS. 
 
 183 
 
 The following acts are felonious, punishable by penal Acts endanger- 
 servitude to the extent of life :— >"?. '^^"^^ "^ 
 
 railway 
 
 To put or throw upon or across any railway any ^lon^s"^ ' 
 wood, stone, or other thing ; (ii.) to take up, remove, 
 or displace any rail, sleeper, or other thing belonging 
 to a railway ; (iii.) to moTe or divert any points or other 
 machinery belonging to any railway ; (iv.) to make, or 
 shew, hide, or remove any signal or light upon or 
 near to any railway; (v.) to do or cause any other 
 thing to be done with intent to endanger the safety of 
 passengers (a) ; or (vi.) to throw against or into any 
 railway engine, carriage, or truck, any wood, stone, or 
 other thing, with intent to injure or endanger the 
 safety of any person in the train (a). 
 
 It is a misdemeanor, punishable with imprisonment misdemeanor, 
 not exceeding two years, by any unlawful act, or by 
 any wilful omission or neglect, to endanger the safety 
 of any person conveyed or being in or upon a railway, 
 or to aid or assist therein (h). 
 
 As to injuries from Furious Driving, v. p. 135. 
 
 ASSAULTS, ETC., CONNECTED WITH WRECKS. 
 
 To assault, and strike or wound any magistrate, Assaulting 
 officer, or other person lawfully authorized in, or on i^"^ ^e"^^^^'^' 
 account of his exercising his duty in the preservation wrecks. 
 of any vessel in distress, or any wrecked vessel or 
 goods, is a misdemeanor, punishable by penal servi- 
 tude to the extent of seven years (e). 
 
 To impede any person endeavouring to escape from impeding 
 
 escape. 
 
 (z) 24 & 25 Vict. u. 100, ». 32. 
 (a) Ibid. s. 33. 
 (6) Ibid, =. 34. 
 (c) Ibid. s. 37. 
 
184 ASSAULTS, ETC. 
 
 a wreck or vessel in distress, or endeavouring to save 
 another, is a felony, punishable by penal servitude to 
 the extent of life (d). 
 
 Forcing 
 seamen on 
 shore. 
 
 FOBOraa SEAMEN ON SHOBE. 
 
 For a master or other person belonging to a British 
 ship wrongfully to force on shore and leave behind, or 
 otherwise wilfully and wrongfully to leave on shore or 
 at sea, any seaman or apprentice, before the completion 
 of the voyage for which he is engaged, or the return of 
 the ship to the United Kingdom, is a misdemeanor (e). 
 So also is it to discharge or leave behind any seaman 
 behiiTcf ^'^'""^'' or apprentice in any place abroad, without obtaining 
 the proper sanction specified in the Act (/). Each of 
 these misdemeanors is punishable by fine and im- 
 prisonment, or may be dealt with on summary convic- 
 tion, and, in that case, is punishable by imprisonment 
 not exceeding six months, or a penalty not exceeding 
 £100 (g). 
 
 Unlawfully 
 
 Assaults on 
 peace officers. 
 
 ASSAULTS ON OEPICEKS. 
 
 To assault, resist, or wilfully obstruct any peace 
 officer in the due execution of his duty, or any person 
 acting in aid of such officer, or to assault any person 
 with intent to resist or prevent the lawful apprehension 
 of oneself or of any other person for any offence, is a 
 misdemeanor punishable by imprisonment not exceed- 
 ing two years (h). 
 
 ASSAULTS ON OTHERS IN THE EXECUTION OE THEIK DUTY. 
 
 Assaults, &o., Clergymen. — By threats or force to obstruct or 
 on clergymen, prevent a clergyman or other minister in or from exer- 
 
 (d) 24 & 25 Vict. 0. 100, s. 17. 
 
 (e) 17 & 18 Vict. c. 104. s. 206. 
 (/) Ibid. s. 207. 
 
 (y) Ibid. s. 518. 
 
 (A) 24 & 25 Vict. c. 100, s. 38. 
 
 For assaulting, &c., officers of the customs, y. p. 114. 
 
 V. also 34 & 35 Vict. c. 112, b. 12. 
 
ASSAULTS, ETC. 185 
 
 cising his functions, or (b) to strike, or offer violence 
 to one so engaged, or (c) to arrest, even upon civil 
 process, one so engaged, to the knowledge of the 
 accused, going to or coming from such performance, 
 is a misdemeanor, punishable by imprisonment not 
 exceeding two years («). 
 
 Gamekeeper, v. p. 141. 
 
 ASSAULTS ON THOSE IN A DEFENCELESS POSITION. 
 
 Apprentioes or Servants. — Whosoever, being legally Assaults on, 
 liable either as master or mistress to provide for any i^gifct °f, 
 apprentice or servant necessary food, clothing, or lodg- s^iTants."^^ ™ 
 ing, wilfully and without lawful excuse refuses or 
 neglects to do so, or (b) unlawfully and maliciously 
 does or causes to be done any bodily harm, so that the 
 life of the apprentice or servant is likely to be per- 
 manently injured, is guilty of a misdemeanor, and is 
 punishable by penal servitude to the extent of five 
 years (k). 
 
 Lunatics. — Abusing, ill-treating, or wilfully neglect- Neglecting or 
 ing a patient in a private asylum, by any person em- j'^"^i°g 
 ployed therein, or any single patient by anyone having 
 charge of or attending upon such lunatic, is a mis- 
 demeanor, or punishable on summary conviction by 
 forfeiture not exceeding £20 (Z). So, also, is the strik- 
 ing, wounding, ill-treating, or wilful neglect of any 
 lunatic confined in a county or public asylum by any 
 person employed therein (m). A similar provision is 
 made with regard to persons confined in asylums for 
 criminal lunatics (n). 
 
 (0 24 & 25 Vict. li. 100, h. 36. 
 (i) Ibid. s. 26. 
 (0 16 & 17 Vict. u. 96, s. 9. 
 (m) 16 & 17 Vict. c. 97, s. 12.3. 
 (re) 23 & 24 Vict. c. 75, s. 13. 
 
186 
 
 ASSAULTS, ETC. 
 
 FALSE IMPKISONMENT. 
 
 False imprison- False imprisonment is a misdemeanor at common 
 
 ™*'' ■ law, punishable by fine or imprisonment, or both. All 
 
 that the prosecntor has to prove is. the imprisonment ; 
 
 it is for the defendant to justify what he did (o). A 
 
 count for a common assault is usually added. 
 
 wiiat amounts Every confinement or restraint of the liberty of a 
 to an im- persou is an imprisonment ; for example, by detaining a 
 man in the streets. Though a party, on being shewn 
 a magistrate's warrant, goes willingly at the desire of 
 a constable, this is an imprisonment which the constable 
 may be called upon to justify (p). 
 
 We shall see under the title " Arrest " in what cases 
 one person is justified in detaining another (q). 
 
 (o) Arch. 728. 
 
 Ip) Chirm r. Morris, 2 C. & P. 361. 
 
 (g) As to Indecent Assault, v. p. 172 ; Assaults in Violation of Trade, 
 V. p. 122 ; Spring Guns, &c., v, p. 142. 
 
( 187 ) 
 
 PAET III. 
 
 OFFENCES AGAINST INDIVIDUALS— THEIR 
 PEOPBETT. 
 
 OHAPTEE I. 
 
 LAECENY. 
 
 Labcent or. theft may be defined as " the wilfully wrong- Definition of 
 fill taking possession of the goods of another with intent ^^'^<^^7- 
 to deprive the owner of his j^roperty in them " (r). 
 
 Larceny is either Simple or Compound. Compound, Larceny, 
 or as it is termed " mixed " or " complicated " larceny, ^3^^^^^ 
 differs from simple larceny merely in that the former is 
 accompanied with circumstances of aggravation. We 
 shall defer the consideration of these aggravated cases 
 until the simple crime has been dealt with. 
 
 The existing statute law on the subject of larceny 
 and kindred offences is contained in one of the Criminal 
 Consolidation Acts, 1861 (s). 
 
 (r) Rose. 622; Fitz. St. 126. This definition, taken from Eosooe's 
 Evidence in Criminal Cases, with a modification suggested by Sir James 
 Stephen, may not at first sight appear to indicate all the elements of 
 larceny. An ordinary definition is something of this sort : " A taking 
 and carrying away of the personal goods of another of any value, against 
 the will or without the consent of the owner, without any bonS, fide claim 
 of right, with a felonious intent." — Arch. Quarter Sessions. But the defi- 
 nition in the text, besides avoiding certain defects, contains all the essen- 
 tials set out in the second definition. Thus " without any claim of right by 
 the taker " is included in the part relating to the intent ; " against the will 
 of the owner " in " wrongful " ; " carrying away " in " taking possession." 
 
 (s) 24 & 25 Vict. 0. 96. In the present chapter the quotation merely 
 of a section must be understood to refer to that act. 
 
188 
 
 LARCENY. 
 
 Possession. 
 
 Property. 
 
 Property 
 which may be 
 the subject of 
 larceny. 
 
 To understand the definition we have given, and to 
 be prepared to distinguish the offences of larceny, em- 
 bezzlement, and obtaining by false pretences, the line 
 between which is very finely drawn, it will be necessary 
 to inquire what is signified by " possession," what by 
 " property." 
 
 Possession extends not only to those things of which 
 we have manual prehension, but those which are in our 
 house, on our land, or in the possession of those under 
 our control, as our servants, children, &c. (t). Property, 
 in the sense of the definition, is " the right to the 
 possession, coupled with an ability to exercise that 
 right '' (m). 
 
 To explain the nature of the crime it will be con- 
 venient to consider separately the component parts of 
 the definition under the following heads :-^ 
 
 i. What kinds of property may be the subjects of 
 larceny. 
 
 ii. What constitutes a wilfully wrongful taking 
 possession of another's goods. 
 
 iii. What must be the intent. 
 
 i. The subjects of larceny. 
 
 Though it may be said that there is not any tenable 
 ground for making some kinds of property incapable 
 of being the subjects of larceny, for a long time there 
 were many of such serious exceptions. Some still 
 continue, while in other cases the stealing is dealt 
 with in an exceptional way (x). The goods must, in 
 
 («) Eosc. 622; v. iJ. v. Seed, 23 L. J. (M.C.) 25. 
 
 (u) Rose. 622. 
 
 (a) " There can be no good reason why stealing a dog, worth perhaps 
 many pounds, and regarded by his owner with strong personal regard, 
 should be less criminal than stealing the dog's collar, worth perhaps half 
 a crown, and regarded with no feeling whatever." — Fitz. St. 138. Yet 
 we shall find that the treatment of the two cases is quite diffei-ent, and 
 the punishment disproportionate. 
 
LARCENY. 189 
 
 the absence of any express statutory enactment, be 
 personal goods. This is the only kind of property 
 which can be the subject of larceny at common law. 
 As to other kinds : — 
 
 (a.) The first and chief example of the common law First exclusion 
 exclusion is — Things real, as lands and houses ; and ^' '"^^ ''^^ ' 
 things attached or belonging to the realty, as trees, 
 grass, the stones or lead of a house ; also title deeds and 
 other writings relating to real estate, inasmuch as they 
 savour of the realty, and pass like real property to the 
 heir or devisee. If the rights of the owner of such 
 property are violated, he must seek a remedy in a civil 
 action of trespass. He cannot, as a rule (see exceptions 
 below), appeal to the criminal law for the punishment 
 of the offender. But if the things are severed from 
 the land, &c., e.g., mown grass, and then feloniously 
 taken away, these may be made the subjects of an in- 
 dictment for larceny, inasmuch as by the severance they 
 have become personal goods. However, to give them 
 this quality an interval must • have elapsed between 
 the severance and the removal, so that the acts be 
 perfectly distinct. And in this interval the wrong- 
 doer must have intended to have abandoned the wrongful 
 possession begun at the time of the severance ; for ex- 
 ample, it will not be larceny to sever and then conceal 
 till one can conveniently return and carry away, how- 
 ever long the interval may be, for the whole is 
 regarded as one continuous act (y). 
 
 The following are the statutory modifications of the 
 rule excluding this class of property (z) : — 
 
 a. Materials of buildings, fixtures, &c. —To steal or to Materials, 
 
 fixtures, &c. 
 
 (i/) R. V. TowrOey, L. K. 1 C. C. R. 315 ; 40 L. J. (M.C) 144. 
 
 (z) "The law, as now regulated by 24 & 25 Vict. c. 96, excepts from 
 the rule that real property cannot be the subject of larceny every sort of 
 real property likely to be stolen, such as fixtures, trees, fences, vegetable 
 productions, and minerals " — but still land itself continues to be incapable 
 of being stolen, though for no valid reason — " suppose that a man unlaw- 
 fully, and with intent to defraud, builds a wall in such a manner as to 
 
190 LARCENY. 
 
 rip, cut, sever, or break, with intent to steal, any glass 
 or wood work belonging to any building whatsoever ; 
 or any lead, iron, copper, brass, or other metal j or any 
 utensil or fixture respectively fixed in or to any build- 
 ing whatsoever ; or anything made of metal or fixed in 
 any land, being private property, or in any square or 
 street, or in any place dedicated to the public use or 
 ornament, or in any burial-ground, is punishable as 
 simple larceny (a). 
 
 Ore, coal. /3. Mines, &G. — To steal, or sever with intent to steal, 
 
 the ore of any metal, or any manganese"^ black lead, &c., 
 or any coal from any mine, bed, or vein, is a felony, 
 punishable by imprisonment not exceeding-two years (6). 
 
 The same consequences attend frauds of a similar 
 nature by any one employed about the mine (c). 
 
 Trees. ; 7. Trees. — To steal, or destroy, or damage with intent 
 
 to steal, any tree, sapling, shrub, or underwood growing 
 in a park, pleasure-ground, garden, orchard, or avenue, 
 or in any ground adjoining or belonging to a dwelling- 
 house, if the injury amounts to the value of £1 ; or, if 
 growing elsewhere, to the value of £5, is a felony 
 punishable as simple larceny (d). If the injury is to 
 the value of Is., wherever the tree, &c., maybe growing, 
 the case may be dealt with summarily, and punished 
 for the first ofi'ence, by fine not exceeding £5 above the 
 injury done ; for the second, imprisonment not exceed- 
 ing twelve months ; on a third conviction, the offence 
 is a felony, punishable as simple larceny (e). 
 
 Plants, fruit, S. Plants, &c. — To steal, or destroy, or damage with 
 *'°" intent to steal, any plant, root, fruit, or vegetable pro- 
 
 inclose a strip of land to which he knows he has no right, "why should he 
 not be indicted for stealing the land ?" — Fitz. St. 55, 132. 
 
 (a) s. 31. 
 
 (h) s. 38. 
 
 (c) s. 39. 
 
 (rf) s. 32. 
 
 (e) s. 33. 
 
LABCENY. 191 
 
 duction growing in any garden, orchard, hothouse, 
 &c., is punishable on summary conyiction by punish- 
 ment not exceeding six months, or fine hot exceed- 
 ing £20. The second ofi'ence is punishable as simple 
 larceny (/). 
 
 e. Deeds, &c. — To steal, or for any fraudulent purpose Deeds, &c. 
 to destroy, cancel, obliterate, or conceal any or part of 
 any documents {g) of title to lands, is punishable by 
 penal seryitude to the extent of five years Qi). 
 
 (b.) A second 'exclusion by the common law is oichoses Second exdu- 
 
 , sion — Cho: 
 in action. 
 
 in action (i.e., mere rights to demand, by action or other ^^™ ^'^"^^^ 
 
 proceedings, property ; or evidence of such rights). 
 
 But without delaying at the common law view of This exclusion 
 the matter, it may be stated that the statutory excep- I^''"^''/*? 
 tions to it include " every chose of action that has past. 
 ever been known to be stolen, or which occurred to the 
 mind of the draftsman as capable of being stolen " {i). 
 Thus, to steal, or for any fraudulent purpose to 
 destroy, cancel, or obliterate the whole or any part 
 of any valuable security, other than a document of title 
 to lands, is a felony, of the same nature and degree, 
 and punishable in the same manner, as if the offender 
 had stolen any chattel of like value with the sum re- 
 presented by the security (h). The term "valuable 
 security " is declared to include any order, exchequer, 
 admittance, or other security whatsoever entitling or 
 evidencing the title of any person or body corporate to 
 any share or interest in any public 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 
 
 (/) s. 36. 
 
 (3) As to Wills, T. p. 192. 
 
 (A) s. 28. As to concealment of instruments of title, or falsification of 
 pedigree by vendor or mortgagor, or his solicitor or agent, v. 22 & 23 
 Vict. c. 35, s. 24. 
 
 (i-) Fitz. St. 55. 
 
 (*) s. 27. 
 
192 LAECBNY. 
 
 any body corporate, company, or society, whether 
 within the United Kingdom or in any foreign state or 
 country, or to any deposit in any bank ; and also any 
 debenture, deed, bond, bill, note, warrant, order, or 
 other security whatsoever for money or for payment 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 y. supra) goods (l). 
 Of course under these terms will be included all ordi- 
 nary cheques, promissory notes, money orders, &c. 
 
 Notes, &c., Notwithstanding the comprehensiveness of this pro- - 
 
 sometimes to yig^Qn j^ yf{i\ })q better in some cases to describe the 
 
 be described as ' 
 
 paper. property stolen as so much paper, &c. ; for example, if 
 
 only half a note is stolen (m). 
 
 It will be convenient to notice here the other excep- 
 tional cases of stealing written instruments. 
 
 Wills. Wills. — To steal, or for any fraudulent purpose 
 
 destroy, cancel, obliterate, or conceal, either during 
 the life or after the death of the testator, any will, 
 codicil, or other testamentary instrument, whether of 
 real or personal property, is a felony, punishable by 
 penal servitude to the extent of life. The criminal^ 
 proceeding does not affect the civil remedy; and no 
 person is liable to be convicted if, before he is charged 
 with the offence, he has first disclosed such act on oath 
 in consequence of the compulsory process of a court of 
 law or equity, or in compulsory examination or deposi- 
 tion in bankruptcy or insolvency (n). 
 
 Records. Becords. — To steal, or for any fraudulent purpose to 
 
 remove, injure, obliterate, &c., records, or other docu- 
 ments belonging or relating to a court of record or 
 
 (0 s. 1. 
 
 (m) S. T. Mead, 4 C. & V. 535. 
 
 (n) s. 29. This provision as to non-liability refers also to the case of 
 documents of title to lands, v. p. 191. 
 
LAEOENY. 193 
 
 equity, or of a public office, is a felony punishable by 
 penal servitude to the extent of five years (o). 
 
 (c.) A third exclusion of the common law is of A third 
 things which are not the subjects of 'property at all. exclusion. 
 
 The chief example of this is in the case of certain *„ 
 animals. But, in addition to these, in ^certain other 
 things there is no property, as a corpse. So it was 
 said of treasure trove, waifs, &c, {p). 
 
 Ammals. — At common law there can be no larceny of Animals, when 
 animals in which there is no property. Such are beasts faroeny^'^''''' "^ 
 that are ferse naturse and unreclaimed, e.g., deer, hares, 
 or conies in a forest, chase, or warren ; fish in an open 
 river or pond; or wild fowls, rooks for instance, at 
 their natural liberty; and this notwithstanding that 
 the right to take the animals in the particular place is 
 enjoyed exclusively by one or more persons. Thus it 
 is not larceny to shoot and take a hare on B.'s land ; 
 the offence will be one against the game laws. On the 
 other hand, dead animals, whether to be used for food 
 or not, may be the subjects of larceny. But here, with 
 regard to shooting and taking by the same person, the 
 rule noticed above as to a break in the proceedings by 
 abandoning possession must be observed {q). 
 
 Again, if the animals are evidently reclaimed, or are 
 practically under the care and dominion of any person, 
 and may serve for food, they may be the subjects of 
 larceny. So, also, may be valuable domestic animals, as 
 horses ; and all animals domitse natures which serve for 
 food, as swine, poultry, and the like ; and the product 
 of any of them, as eggs, milk, wool, &c. But other 
 animals which do not serve for food are not the sub- 
 
 Co) s. 30. 
 
 Ip) But V. p. 68. 
 
 Iq) V. p. 189. B. V. Townleij. 
 
194 
 
 LABCENY. 
 
 jects of larceny, e.g., dogs, bears, foxes, &c., though 
 they may be recovered in a civil action. 
 
 Such is the common lavr ; it has thus been modified 
 by statute : — 
 
 Deer. a. Deer. — To unlawfully and wilfully course, hiint, 
 
 snare, or carry away, or till or wound, or attempt to 
 kill or wound, any deer kept in an uninclosed part of 
 a forest, chase, or purlieu is punishable, on summary 
 conviction, by penalty not exceeding £50. The second 
 offence is a felony, punishable by imprisonment not 
 exceeding two years (r). If the deed is done in an 
 inclosed place, the first or any offence is a felony, 
 punishable by imprisonment not exceeding two years (s). 
 To have in possession, without satisfactorily accounting 
 for the same, any deer, or the head, skin, or other part 
 thereof, or a snare or engine for taking deer {f), or 
 (b) to set or use any such snare, or destroy any part of 
 the fence of any land where any deer are kept (m), is 
 punishable on summary conviction. 
 
 Hares, &c. /8. Hares, &e. — To unlawfully and wilfully, between 
 
 the expiration of the first hour after sunset and the 
 beginning of the last hour before sunrise, take or kill 
 any hare or rabbit in a warren or ground (whether in- 
 closed or not) lawfully used for the breeding or keeping 
 of hares or rabbits is a misdemeanor. To do the above 
 at any other time, or at any time to set a snare, is 
 punishable, on summary conviction, by a penalty not 
 exceeding £5 {x). 
 
 Fish. 7. Fish, &c. — To unlawfully and wilfully take or 
 
 destroy any fish in any water adjoining or belonging 
 to the dwelling-house of the owner of such water is a 
 
 (f) s. 12. 
 
 (s) s. 13. 
 It) a. 14. 
 (m) s. 15. 
 Ix) s. 17. 
 
LABCBNY. 195 
 
 misdemeanor ; in water not so situated, but which is 
 private property, or in which there is any private right 
 of fishery, is punishable, on summary conviction, by 
 a penalty not exceeding £5 above the value of the 
 fish (y). 
 
 To steal any oysters or oyster brood, layer, or Oysters. 
 fishery, being the property of any other person, and 
 sufficiently marked out, or known as such, is a felony, 
 punishable as in the case of simple larceny. To use 
 any net, instrument, &c., for taking oysters, or to drag 
 upon the ground of such fishery, is a misdemeanor, 
 punishable by imprisonment not exceeding three 
 months (z). 
 
 5. Dogs. — Stealing a dog is punishable, on summary Bogs. 
 conviction, by imprisonment not exceeding six months, 
 
 or with a penalty not exceeding £20 above the value 
 of the dog. A second ofi'ence is a misdemeanor, 
 punishable by imprisonment not exceeding eighteen 
 months (a). The same consequences, without the 
 alternative of imprisonment for the first offence, attend 
 the unlawfully having possession of a stolen dog or its 
 skin, knowing it to have been stolen (h). To corruptly 
 take money for aiding any person to recover a dog 
 stolen, or in the possession of any person not the 
 owner thereof, is a misdemeanor, punishable by impri- 
 sonment not exceeding eighteen months (e). 
 
 6. Horses, Cows, Sheep, &c. — One reason for in- Horses and 
 creasing the severity of the punishment is the ease ''*"'*• 
 with which the crime can be committed, so that the 
 deterrent effect of the consequences may be propor- 
 tioned to the inducements to commit it. On this 
 account the punishment imposed by statute for steal- 
 
 (</) s. 24. 
 
 («) s. 26 ; dee also 31 & 32 Vict. .;. 45, pt. 3, ss. 28, 42, 43, 51, 52, 55. 
 
 (a) s. 18. 
 
 (6) s, 19 ; see also s. 22. 
 
 (o) s. 20. 
 
 O 2 
 
196 
 
 LARCENY. 
 
 ing any of these animals exceeds that for simple 
 larceny at common law. 
 
 To steal a horse, mare, gelding, colt, filly ; bull, cow, 
 ox, heifer, calf ; ram, ewe, sheep, or lamb, is a felony, 
 punishable by penal servitude to the extent of fourteen 
 years (d). 
 
 Killing with To wilfully kill any animal, with intent to steal the 
 
 intent to steal garcase, stin, or any part, is a felony, punishable as if 
 
 the offender had been convicted of feloniously stealing 
 
 the same, provided the offence of stealing the animal 
 
 so killed would have been felony (e). 
 
 Value of the Further with regard to the goods. — As a rule, the 
 goods stolen, ^^j^g q£ ^]^g thing stolcn is no longer of any moment 
 in larceny. Except, indeed, where some amount is 
 specially mentioned in the statute as of the essence 
 of the crime, for example, in the case of trees (/) ; or 
 where the value of the thing determines whether the 
 case may be dealt with in a summary way (g). And, 
 of course, if it appears at" the trial that the theft was of 
 considerable extent, this will be one element which 
 will make the offence more serious, and will therefore 
 influence the court in its judgment. But now in ordi- 
 nary cases no statement of value or price is necessary 
 ■ in the indictment (h). Formerly it was otherwise. 
 There was a division into grand and petty larceny : 
 the former comprising cases of larceny of goods of the 
 value of twelve pence and upwards; such offences 
 being attended with more serious punishment than 
 petty larcenies, which comprised cases of theft where 
 the value did not reach that sum. But now the dis- 
 tinction is abolished, and every simple larceny is of 
 
 (d) s. 10. 
 
 (e) a. 11. 
 
 (/) ss. 32, 33 ; v. supra. 
 
 Ig) V. 18 & 19 Vict. c. 126, s. 1. 
 
 (/i) 14 & 15 Vict. .;. 100, s. 24. 
 
lABCENY. 197 
 
 the same nature and subject to the same incidents as 
 grand larceny was formerly (i). Though to make a 
 thing the subject of an indictment for larceny, it must 
 be of some value, and stated to be so in the indictment, 
 yet it need not be of the value of some coin known to 
 the law, that is to say, of a farthing at the least (k). 
 
 As to the description of the ownership of the goods. Ownership of 
 — The name of the owner must be given in the indict- "'^ ^oods. 
 ment, unless it be one of those cases in which the 
 statute expressly declares this unnecessary, e.g., of 
 wills (Z). In other than these exceptional cases it 
 must be proved that the goods stolen are the abso- 
 lute or special property of the person named in the 
 indictment (m). 
 
 ii. The wilfully wrongful tahing possession. 
 
 The object of inserting " wilfully " before the The wrongful 
 "wrongful taking" is to distinguish the wrongful Jf^'.^s^™"^"' ^^ 
 taking which constitutes larceny from the wrongful 
 taking which merely affords ground for a civil action. 
 Thus a person, imagining that he has the right, taking 
 the goods of another under an illegal distress is liable 
 to civil but not to criminal proceedings. In any case, 
 if the taking is under colour of right, though the 
 supposed right be without foundation, there is no 
 larceny (n). 
 
 The taking is either actual or constructive : — Actual, The taking, 
 
 I actual or i 
 ' structive. 
 
 when the thief directly takes the goods out of the ^"'"^^ °'' '^™- 
 
 possession of the owner or his bailee, invito domino (o). 
 
 (b) 7 & 8 Geo. 4, c. 29, s. 2, re-enacted by 24 & 25 Vict. c. 96, s. 2. 
 
 Qt) a V. Morris, 9 C. & P. 349. 
 
 (0 s. 29. 
 
 (m) As to the person in whom the ownership must be laid, v. p. 323. 
 
 In) T. p. 204. 
 
 (o) A slight apparent exception to the rule that the taking must be 
 invito domino, occurs in the case of the owner receiving intimation of the 
 proposed theft and resolving to allow it to be carried out in order to 
 convict the thief. S. v. Eggington, 2 Leach, 913. 
 
198 
 
 LARCENY. 
 
 Constructive 
 taking. 
 
 by force or by stealth, or the like : Constructive, when 
 the owner delivers the goods, but either does not 
 thereby divest himself of the legal possession, or the 
 possession of the goods has been obtained from him by 
 fraud and in pursuance of a previous intent to steal 
 them (ji). 
 
 The law on constructive tahing may be considered 
 under the following heads : — 
 
 (a.) Where, by the delivery, the owner of the goods 
 passes not only the possession, but the right of pro- 
 perty also. 
 
 (b.) Where the possession has been obtained animo 
 furandi. 
 
 (c.) Where the possession was originally obtained 
 bond fide, and without a felonious intent. 
 
 (d.) Where the delivery does not alter the possession 
 in law. 
 
 Property as (a.) Where the right of property as well as the pos- 
 
 weii as posses- gession is parted with hy the delivery, there can be no 
 
 sion parted -^ nni i 
 
 with. larceny, however fraudulent are the means by which 
 
 the delivery of the goods is procured. Of course, the 
 person who committed the fraud is open to a charge 
 for another offence, namely, obtaining goods by false 
 pretences. If the property has once passed, no sub- 
 sequent act by the person in whom the right of pro- 
 perty has vested can be construed into larceny, whatever 
 the intent of that person may be. Thus A. buys a 
 horse from B., mounts it, says he will return imme- 
 diately and pay. B. says, "Very well." A. rides away 
 and never returns. There is no larceny, because the 
 property as well as the possession is parted with {q). 
 
 (p) Arch. 353. From this work is also taken the immediately following 
 classification of cases. 
 
 ((/) E. V. Harvey, 1 Leach, 467. 
 
LARCENY. 199 
 
 So in all cases of selling on credit; intrusting with 
 money to get change, &c. 
 
 It is the same if the property is passed by the servant Authority of 
 of the owner, provided that the servant has authority parrwith 
 to part with the property ; but not if he has authority property and 
 to part merely with the possession. Thus, if the ser- P"^^**"""- 
 vant of B. is authorized only to let out horses on hire, 
 and he, in the case given above, parts with the property 
 in the animal to A., it is larceny in A. (r). 
 
 (b.) Where the possession of goods is obtained animo Possession 
 fv/randi (s), by the offender employing some device ; ^'''*!°?'^ ''"™'' 
 the owner not intending to part with the property in 
 the goods, though he does with the temporary posses- 
 sion. This is larceny, though there be a delivery in 
 fact. Thus A. goes to B.'s shop, and says that C. wants 
 some shawls to look at. B. gives A. some shawls for C. 
 to select from. A. converts them to her own use. This 
 is larceny in A., because, until the selection is made, 
 only the possession and not the property is parted 
 with. It is larceny, if the design of so converting to 
 the accused's own use is present when possession is 
 obtained ; but it is not larceny if such design is con- 
 ceived only subsequently to the rightfully obtaining 
 possession (t). 
 
 An example of larceny of this class is the practice Ring-dropping. 
 of ring-dropping. The prisoner pretends to find a ring 
 wrapped in paper appearing to be a jeweller's receipt 
 for a "rich brilliant diamond ring." He, with his 
 accomplices, offers to leave the ring with the victim if 
 the latter will deposit his watch or some money as 
 security for the return of the ring. The watch or 
 money is taken away by the prisoner's party, and the 
 victim finds that the value of the ring is much below 
 
 (r) V. R. w. Middleton, L. E. 2 C. C. R. 38; 42 L. J. (M.C.) 73. 
 
 (s) As to what constitutes animus furandi, or felonious intent, v. p. 204. 
 
 (0 iJ. T. Saioge, 5 C. & P. 143. 
 
200 
 
 LARCENY. 
 
 Larceny some- 
 times 
 
 approaches 
 obtaining by 
 false pretences. 
 
 Possession at 
 first obtained 
 bond jide and 
 lawfully. 
 
 that of the goods lie has parted with (m). The fact 
 that there is an actual delivery of goods does not divest 
 the deed of the character of larceny, if the defendant 
 having the animus furandi obtains them by frightening 
 or threatening the owner, as, for example, in mocli 
 auctions (a;). 
 
 Some of the cases under this head which have been 
 decided to be larceny shew how very narrow the line is 
 between larceny and non-larceny or false pretences. 
 Thus, when A. obtained from B. a sum of money under 
 the false colour of winning a bet, it was held to be 
 larceny, because at the time the defendant obtained the 
 money from the prosecutor he parted with the possession 
 only, and the property was to pass eventually only if 
 the other party really won the wager {y). 
 
 (c.) Where the possession of the goods is obtained law- 
 fully and' bond fide, without any fraudulent intention in 
 the first instance. — Though the person thus obtaining 
 possession afterwards fraudulently appropriated .the 
 goods to his own use, he would not be guilty of larceny 
 at common law. However, it would be otherwise if the 
 possession was obtained by trespass, and then there 
 was a subsequent fraudulent appropriation, though 
 there were no fraudulent intention at first (2). 
 
 Bailment. In accordance with the above rule, in no case of bail- 
 
 ment where the possession was at first obtained inno- 
 cently, could the bailee be found guilty of larceny. But 
 the legislature has interfered, and enacted that the 
 fraudulent taking or converting any chattel, money, or 
 valuable security by the bailee of such property to his 
 own use, or to the use of some other person than the 
 owner, although he do not break bulk or otherwise 
 
 (m) S. y. Patch, 1 Leach, 238. 
 
 (a;) R. V. M'Grath, L. R. 1 C. C. E. 205 1 39 L. J. (M.C.) 7. 
 ly) R. v. Rohson, R. & R. 413; v. R. t. Wil/tins, 1 Leach, 520. 
 («) R. V. Riley, 22 L. J. (M.C.) 48. 
 
LABCENY. 201 
 
 determine the bailment, is larceny (a). But a person 
 cannot be convicted of larceny as a bailee unless the 
 bailment be to re-deliver the very same chattel or 
 money (b). 
 
 As we shall see, the Larceny Act deals specifically 
 with the cases of certain persons who are intrusted 
 with money or goods, e.ff., banker, broker, &c. The 
 crime of embezzlement is also concerned with appro- 
 priations by those to whom property has been delivered, 
 though not by the person who is wrongfully de- 
 prived (c). 
 
 (d.) Where the delivery does not alter the possession in Possession not 
 law : in other words, where, although there is a delivery f^-^^^^y^ 
 of the goods by the owner, yet the possession in law 
 remains in him, the goods may be stolen by the person 
 to whom they are thus delivered. Thus it is larceny 
 at common law for a servant who has merely the care 
 and oversight of the goods of his master, as the butler 
 of the plate, to appropriate those goods. And here 
 the felonious intention need not exist at the time of 
 the delivery, inasmuch as the delivery is merely for 
 custody, the possession legally remaining in the master. 
 The master must have been in possession; for if the 
 goods are delivered to the servant for the master's use, 
 and the servant does not deliver, but converts them to 
 his own use, this is not larceny, but embezzlement ; as 
 if a shopman receives money from one of his master's 
 customers, and, instead of putting it into the till, secretes 
 it (d). 
 
 There are other cases in which the possession, though 
 physically parted with, still remains unmoved in the 
 eye of the law. For example, when the owner is 
 
 (o) s. 3. 
 
 (6) B. V. ffassell, 30 L. J. (M.C.) 175. 
 
 (c) As to larceny by tenants or lodgers, v. p. 207. 
 
 (d) S. V. Bull, 2 Leach, 841. 
 
202 
 
 LAKOENY. 
 
 present all the time the goods are in the physical pos- 
 session of the accused, and has no intention of relin- 
 quishing his dominion, as when a lady handed a sove- 
 reign to the prisoner, asking him to procure her a 
 ticket, and he ran off with it: he was convicted of 
 larceny (e). 
 
 So a hare use of the goods of another does not divest 
 the owner of his possession in law. Thus it is larceny 
 for a person to fraudulently convert to his own use the 
 plate which he is using at an inn (/). 
 
 Taking one's 
 own goods, 
 
 The taking must be of another's goods. Therefore 
 a person cannot steal his own goods, if they are in his 
 own possession, though he defraud his creditors by the 
 removal ; but otherwise, if they are in the hands of a 
 bailee, and the taking of them has the effect of charging 
 the bailee {g). 
 
 So, also, if one of several joint tenants or tenants in 
 common of personal goods disposed of them, it was not 
 larceny at common law, for the disposer was already 
 in possession (Ji). But it has been enacted that if any 
 member of a co-partnership, or one of two or more 
 beneficial owners of property, steals any such property, 
 he is liable to be dealt with as if he had not been in 
 such position (t). 
 
 or those of 
 one's consort. 
 
 Husband and wife being one in law, they cannot steal 
 each other's goods. And if the goods of the husband 
 are taken with the consent or privity of the wife, it is 
 
 (e) S. v. T/tompson, 32 L. J. (M.C.) 53. 
 
 (/) A reference to the explanation of the term " possession " (p. 188) 
 will shew that in the above cases the owner in strictness has not parted 
 with the possession. 
 
 (g) V. JR. T. Wilkinson, R. & E. 470. 
 
 (A) This does not apply to corporations, because there individual members 
 have not the right of possession or property. 
 
 (i) 31 &32 Vict. c. 116, s. 1. 
 
LABOENY. 203 
 
 not larceny, unless the taker be the avowterer of the 
 woman (k). 
 
 When does the appropriation of things found amount Appropriation 
 to an unlawful and felonious taking ? The true rule found^when 
 was laid down in R. v. Thurhorn (I). " If a man find larceny, 
 goods that have been actually lost, and appropriate 
 them, with intent to take the entire dominion over 
 them, really believing when he takes them that the 
 owner cannot be found, it is not larceny. But if he 
 takes them with the like intent, though lost, or reason- 
 ably supposed to be lost, but reasonably believing that 
 the owner can be found, it is larceny." Thus to make 
 finding larceny, there must be on the part of the finder 
 both this belief and this intention at the time of the 
 finding. 
 
 As to the taking physically regarded. — In the Asportation. 
 " taking " we have included what is frequently con- 
 sidered as a separate ingredient of larceny — carrying 
 away or asportation. This asportation must be proved, 
 as well as a bare taking. Thus, to handle a bale of 
 goods is not larceny; but the slightest removal will 
 suffice; it is not necessary that the prisoner should 
 succeed in carrying the goods away. Thus, removing 
 the gooAa from the head to the tail of a waggon, with 
 intent to steal ; or, with like intent, drawing a book 
 from a coat an inch above the pocket, though it fall 
 back again, is enough to constitute an asportation (m). 
 But there must be some severance ; and, therefore, where 
 the goods could not be carried off because of a string 
 attaching them to the counter, the prisoner was ac- 
 quitted (w). 
 
 Not that in such cases the offender will be altogether 
 
 (^k) B. V. Tolfree, 1 Mood. C. C. 243. 
 (0 18 L. J. (M.C.) 140; 2 C. & K. 831. 
 (m) H. V. Thompson, 1 Mood. C. C. 78. 
 (re) 2 East, P. C. 556. 
 
204 
 
 LAKCENY. 
 
 Attempt to 
 steal. 
 
 out of the reach of the criminal law : he may be in- 
 dicted for an attempt to steal ; or upon the indictment 
 for larceny he may be found guilty of, and punished 
 for, an attempt (o). But he can be convicted of an 
 attempt only where, if no interruption had taken 
 place, the design would have been carried out success- 
 fully; therefore, putting one's hand into an empty 
 pocket with intent to steal, will not constitute an 
 attempt (p). Here again, however, though the prisoner 
 cannot be convicted of the attempt, he is guilty of 
 a common law misdemeanor. 
 
 iii. The intent permanently to deprive the owner of his 
 property — the animus furandi — the felonious intent. 
 
 The felonious 
 intent. 
 
 This is an essential constituent of larceny, and there- 
 fore are excepted from criminal liability those who 
 are merely trespassers. Thus, if I take my neighbour's 
 horse out of his stables, and ride it in open day for a 
 few miles, where I am well known, there would be a 
 mere trespass, and no ground for a charge of larceny, 
 however much I may be at enmity with my neighbour. 
 So, also, are exempted those who take goods under a 
 hand fide claim of right, however unfounded that 
 claim may be ; as if, under colour of arrears of rent, 
 although none is actually due, I distrain or seize 
 my tenant's cattle ; this may be a trespass, but is no 
 felony. 
 
 As we have already noticed {q), the felonious intent 
 must exist at the time of taking. The intent must, of 
 course, be inferred from the circumstances of the case : 
 among the more common indicia of this felonious 
 intent being the doing the act clandestinely, the deny- 
 ing it when charged, &c. It will be for the jury to 
 
 (o) f. p. 17 ; 14 & 15 Vict, c- 100, s. 9. 
 (p) S. V. Collins, 33 L. J. (M.C.) 177. 
 (?) V. p. 199. 
 
LARCENY. 205 
 
 decide whether the felonious intent has been proved ; 
 or, rather, whether the prisoner has established the 
 absence of such intent ; for it is a general presumption 
 of the law that when a party takes wrongful possession 
 of goods belonging to another, his intent is to deprive 
 the owner of them, that is, to steal them. Eeturning 
 the goods is strong evidence that the intent was not 
 felonious, though it is not conclusive evidence, inas- 
 much as the prisoner would be convicted if from other 
 circumstances it is proved that the felonious intent was 
 present at the time of taking, though it was afterwards 
 abandoned. 
 
 It is not necessary that the talking should be liiori Taking lucH 
 causa, or with the object of gain of a pecuniary cha- """*"■ 
 racter. For example, it was held to be larceny for a man 
 to take another's horse, back it into a pit, and thereby 
 kill it, the object here being to screen an accomplice (r). 
 And so a person was convicted of larceny who de- 
 stroyed a letter in order to suppress inquiries as to 
 behaviour supposed to be contained therein (s). But in 
 such cases as these it is perhaps possible to extend 
 the meaning of Ivori causa to any advantage to be 
 obtained by the prisoner on the commission of the 
 crime; and then this term could be applied to any 
 case of larceny. An extreme example of this kind of 
 advantage derived from the wrongful dealing with the 
 goods of another is one which was formerly suf&cient 
 to constitute larceny, but which now is specially pro- 
 vided for by statute, namely, the case of servants 
 supplying their master's horses, &c., with food addi- 
 tional to the quantity usually allowed. The later 
 cases on the subject went so far as to establish that it 
 was larceny, even if the intent of obtaining a private 
 benefit (e.gr., ease in looking after the horses) was nega- 
 
 (>■) S. V. CatAage, E. & R. 292. 
 (s) E. y. Jones, 2 C. & K. 236. 
 
206 
 
 LARCENY. 
 
 tived (t). The statute (u) enacts that such conduct shall 
 be punished, on summary couYiction, by imprisonment 
 not exceeding three months, or fine not exceeding £5 ; 
 and that the magistrate may dismiss the case if he 
 think it too trifling. 
 
 More than one In the Same indictment against the same person 
 i'ndiotment^ there may be inserted several counts for any number of 
 when allowed, distinct acts of stealing, not exceeding three, which 
 may have been committed by him against the same 
 person within the space of six months from the first to 
 the last of such acts; and it is lawful to proceed 
 thereon for all or any of them {v). If, at a trial for 
 larceny, it appears that the property alleged to have 
 been stolen at one time was taken at different times, 
 the prosecution is not required to elect upon which 
 taking he will proceed, unless it appears that there 
 were more than three takings, or that more than the 
 space of six months elapsed between the first and last 
 of such takings. In either of such last-mentioned 
 cases the prosecution is required to elect to proceed 
 for such number of takings, not exceeding three, as 
 appear to liaye taken place within the period of six 
 months from the first to the last of such takings (a;). 
 
 Conviction for A person indicted for larceny is not to be acquitted 
 
 raStment bccause it is proTcd that he is guilty of embezzlement, 
 
 for larceny, ^ and vice versd ; so that the prisoner will be punished 
 
 BMK versa. £^^ -vvhichcTer of these crimes he is found guilty of by 
 
 the jury, although he may have been indicted for the 
 
 other (y). 
 
 Place of trial. As to the p^ci-cs of trial. — The thief may be tried in 
 any county of the United Kingdom in which he has 
 
 (0 S. V. Privett, 2 C. & K. 114. 
 (m) 26 & 27 Vict. u. 103, s. 1. 
 (k) s. 5. 
 (x) ». 6. 
 (3/) s. 72. 
 
LAKCENY. 
 
 207 
 
 any of the stolen or feloniously taken property, and 
 this irrespective 'of the length of time since the commis- 
 sion of the larceny (z), for in the eyes of the law he is 
 guilty of a taking in every county through or in which 
 the goods have heen taken hy him (a). 
 
 The punishment for simple larceny, or for any felony Punishment. 
 made punishable as simple larceny, is — except in cases 
 specially provided for in the Act, or provided for there- 
 after — penal servitude to the extent of five years (h). 
 Additional punishment is awarded in most instances 
 where the offender has been previously convicted, 
 according to rules to be subsequently mentioned (c). 
 
 The punishment for stealing by any tenant or lodger 
 any chattel or fixture let to be used in or with the 
 house or lodging, is imprisonment not exceeding two 
 years. If the value of the property exceeds £5, 
 penal servitude to the extent of seven years may be 
 awarded {d). 
 
 Larceny by clerks or servants of goods belonging to, 
 or in the possession or power of, their master or em- 
 ployer, is punishable by penal servitude to the extent 
 of fourteen years (e). 
 
 COMPOUND OK AGGBAVATED LAECBNY. 
 
 Larceny attended by circumstances of aggravation Larceny, 
 is punished more severely than simple larceny. This ™"^a™°ed" 
 increased severity is the test to indicate what the 
 law regards as aggravations. In compound larceny 
 all the elements of simple larceny are present ; and, in 
 
 (z) s. 114. 
 
 (a) See further as to place of trial, p. 337 ; restitution of property, 
 p. 433 ; apprehension of offenders, p. 309 ; costs, p. 446 ; summary jurisdic- 
 tion in certain larcenies, p. 461. 
 
 (6) s. 4. 
 
 (c) T. p. 436. 
 
 (d) s. 74. 
 
 (e) s. 67. 
 
208 LARCENY. 
 
 addition to these, the special features which constitute 
 the aggravation. If the prosecution fail to prove such 
 additional circumstances, the prisoner may be found 
 guilty of simple larceny. 
 
 Aggravations " The principal aggravations now in force are either 
 enumerated. ^^ respect of the nature of the thing stolen, as in the case 
 of cattle (/), goods in the process of manufacture [g), 
 and wills Qi) ; or in respect of the manner in which 
 they are stolen, as with or without arms and violence (i) ; 
 or in respect of the place from which they are stolen, as 
 from the person (k), in a dwelling house to the value of 
 £5 (Z), in a church or chapel {m), from a ship in har- 
 bour (w), and from a ship in distress (o) ; or in respect 
 of the person by whom they are stolen, as in the case of 
 agents (p), bankers {q), and fraudulent trustees (r), 
 servants (s), public officers {t), and persons previously 
 convicted (m)." 
 
 Some of these have already been noticed ; the others 
 now demand our consideration. 
 
 (a.) Goods in process of manufactwe. 
 
 Larceny of The goods which are under the protection of the 
 
 rfmaiu?"'''' severer penalties are the following :— Woollen, linen, 
 facture. hempen or cotton yarn, or any goods or articles of silk. 
 
 (/) ^- V- 195. 
 
 {g) V. p. 208. 
 (A) V. p. 192. 
 (0 V. p. 210. 
 (A) V. p. 213. 
 (0 T. p. 245. 
 (m) V. p. 244. 
 («) V. p. 209. 
 (o) Ibid. 
 (j)) T. p. 225. 
 (?) Ibid, 
 (r) Ibid, 
 (s) V. p. 207 
 
 (0 T. p. 209. 
 
 («) V. p. 436 ; Fitz. St. 138, 
 
LARCENY. 209 
 
 woollen, linen, cotton, alpaca, or mohair, or of any of 
 these materials mixed with each other or with some 
 other material. The stealing of any of these whilst 
 laid, placed, or exposed during any stage, process, or 
 progress of manufacture, in any building, field or other 
 place, is punishable by penal servitude to the extent of 
 fourteen years (x). 
 
 (Jo.) From Vessels, Docks, &o. 
 
 Stealing from vessels, barges, or boats of any descrip- Larceny from 
 tion, in a haven, port of entry or discharge, or upon a ^^^^^^'^' ^'"'^^' 
 navigable river or canal, or in a creek or basin com- 
 municating with any of the foregoing, is punishable by 
 penal servitude to the extent of fourteen years. The 
 same punishment attends stealing from a dock, wharf, 
 or quay adjacent to any such haven, port, river, canal, 
 creek or basin (y). 
 
 (c.) From Vessels in Distress, or Wrecked. 
 
 It is said that at common law there could be no Larceny from 
 larceny of wrecks, inasmuch as in such a person could ^'^^ ^' 
 not have determinate property. The state of affairs is 
 now completely altered. The law, taking into con- 
 sideration the gravity of the offence of stealing from 
 those in a defenceless and distressed state, visits such 
 conduct with more severe punishment. To plunder or 
 steal any part of a ship or vessel in distress, or wrecked, 
 stranded, or cast on shore, or any goods, merchandise, 
 or articles of any kind belonging to such ship or vessel, 
 is punishable by penal servitude to the extent of four- 
 teen years (z). 
 
 (d.) By those in the Public Service, or Police Constables. 
 The nature of their position considerably aggravates 
 
 (x) s. 62. 
 (y) s. 63. 
 (z) s. 64. 
 
210 LARCENY. 
 
 Larceny by the offence of persons who are expected to take the 
 pu 10 cers. j^^^ ^^ ^-^^ prevention of crime. For any one employed 
 in the public service of Her Majesty, or in the police, 
 to steal any chattels, money, or valuable security, 
 belonging to, or in possession or power of Her Majesty, 
 or intrusted to, or received or taken' into possession by 
 him by virtue of his employment, is punishable by 
 penal servitude to the extent of fourteen years (a). 
 
 (e.) Robbery (b). 
 
 Larceny from the person is either by privately steal- 
 ing, or by open and violent assault. The latter, usually 
 termed " Eobbery," will be treated of first, the former 
 comprising all other cases of stealing from the person. 
 
 Definition of Eobbcry is the felonious and forcible taking from 
 robbery. ^j^^ person of another, or in his presence, against his 
 
 will, of any money or goods to any value, by violence, 
 or putting him to fear. The rules of larceny in general 
 apply, and therefore the prosecution must prove the 
 same points as in larceny, and certain others in addi- 
 tion. 
 
 The force or The gist of this Crime is the force or bodily fear. It 
 bodily fear. j^ ^^^^ neccssary to shew that both were present. 
 Though no violence was used, it will suffice if it can 
 be proved that the goods were delivered to the prisoner 
 by the party robbed under the impression of a certain 
 The fear. degree of /ear and apprehension. What is that degree 
 
 of fear ? On the one hand, the fear is not confined to 
 an apprehension of bodily injury, and, on the other 
 hand, it must be of such a nature as in reason and 
 common experience is likely to induce a person to part 
 with his property against his will, and to put him, as it 
 were, under a temporary suspension of the power of 
 
 (a) s. 69. As to the venue, t. s. 70. Larceny by agents, banlters, 
 trustees, &c., will be noticed under the' title " Embezzlement." 
 (6) As to piracy or robbery on the high seas, v. p. 41. 
 
LAEOENY. 211 
 
 exercising it througli the influence of the terror im- 
 pressed (e). It is not necessary that the danger should 
 be impending on the person of the party robbed; it 
 may be on those dear to him, as his children, or on his 
 house (d). There is no reason why the personal cha- 
 racter of the person robbed should lighten the offence 
 of the robber ; therefore it is not necessary to prove 
 that the fear actually existed, if it be shewn that the 
 circumstances are such as are calculated to create a fear 
 of the nature indicated. And if this be shewn, the 
 resort to some pretence by the offender will not divest 
 the act of the character of robbery ; as if a person with 
 a sword begs alms ; by the same means compels some 
 one to swear that he will return with money, the fear 
 of the menaces still continuing to operate when the 
 money is delivered. 
 
 Though there be no fear, yet if there is actual force The force or 
 or violence, it is a robbery ; as where the prisoner knocks ^'^ ^°'^^' 
 down the proseciitor from behind, and steals from him 
 his property while he is insensible on the ground. But 
 the rule appears to be well established that no sudden 
 taking or snatching of property unawares from a person 
 is sufficient to constitute robbery unless some injury be 
 done to the person, or there be a previous struggle for 
 the possession of the property, or some force used to 
 obtain it (e). 
 
 The force or fear must precede or accompany the The force, &c., 
 takine:, so that a subsequent scuffle or puttina; to fear ""V*' °°'^ ^^, 
 
 o' n r o _ subsequent to 
 
 in order to keep the property will not constitute a the taking. 
 robbery. 
 
 To constitute a taking, the robber must actually Possession ot 
 obtain possession of the goods ; so that it would not be must be'takeu 
 
 (c) S. V. Donnally, 2 East, P. C. 713. 
 
 (d) B. T. Astley, 2 East, P. C. 729. 
 
 (e) Arch. 438 ; B. v. Steward, 2 East, P. C. 702. 
 
212 LARCENY. 
 
 robbery to cut a man's girdle in order to get his purse, 
 the purse thereby falling to the ground, if the robber 
 was compelled to run off before he could take it up. 
 
 The taking The taking must be from the person, or in the -pre- 
 
 re'perso?" ^ewce of the party robbed. Thus it is robbery to put a 
 in the presence, man in fear, and then in his presence to drive away hia 
 "■ cattle. So also by threats to compel him to deliver up 
 
 his property, though the robber never touch his person. 
 In the case of simple larceny, there must be some seve- 
 rance of the property. In robbery there must be some- 
 thing more, namely, a complete removal from the person 
 of the party robbed. Eemoval from the place where it 
 is, if it remains throughout with the person, is not suf- 
 ficient (/). 
 
 Against the The taking must be against the will of the person 
 
 ^' ■ robbed. Therefore when he, through a third party, 
 
 procured others to commit the robbery in order that he 
 
 might get the reward upon the conviction, it was held 
 
 not to be robbery {g). 
 
 Punishment. Eobbery may be punished by penal servitude to the 
 extent of fourteen years Qi). If the robbery is accom- 
 panied by violence, either at the time of, or immediately 
 before, or immediately after such robbery; or if the 
 robbery, or assault with intent to rob, is by a person 
 armed with any offensive weapon or instrument ; or if 
 the robbery or assault with intent to rob is by two or 
 more persons, penal servitude to the extent of life may 
 be awarded (*'). By a later statute, in the case of a male, 
 sentence of private whipping once, twice, or thrice, may 
 be added {j). 
 
 (/) R. V. Thompson, 1 Mood. C. C. 78 ; but see E. t. Lapier, 1 Leach, 
 320. 
 
 (S) E. V. Macdaniel, Fost. 121, 128. Cf. E. t. Eqqinqton, p. 197- E 
 V. WillJams, 1 C. & K. 195. 
 
 (A) s. 40. 
 
 (0 s. 43. 
 
 0') 26 & 27 Vict. c. 44. 
 
LARCENY. 213 
 
 (f.) Stealing from the Person. 
 
 Under this head fall all other cases of stealing from stealing from 
 the person, not attended by violence or putting to "^® P«ison- 
 bodily fear. Of this nature is pocket-picking when the 
 offence is committed privily. An actual taking must 
 be proved, inasmuch as the nature of the case precludes 
 there being anything like a constructive taking, such 
 as the delivery, &c., in robbery. 
 
 The principles of robbery as to the severance, taking, 
 intent, &c., generally apply. The punishment is the 
 same as for simple robbery, namely, penal servitude to 
 the extent of fourteen years (A;). 
 
 Assault with intent to rob. 
 
 It seems convenient to notice this offence here, seeing Assault witii 
 that the evidence upon an indictment for such assault '°'^''' '° '■"''• 
 usually proves a robbery with the exception of a taking 
 and carrying away, which for some reason are not 
 effected. No actual violence need be done, but anything 
 done in the presence of the party intended to be robbed, 
 with reference to him, in furtherance of the intent to 
 rob him, will constitute the assault {l). Nor need there 
 be any demand of money. 
 
 The punishment for this felony (save and except 
 where a greater punishment is provided by the Act (m) ) 
 is penal servitude to the extent of five years («). 
 
 If on an indictment for robbery the jury are of Verdict of 
 opinion that the prisoner did not commit robbery, but diotmen°°for' 
 did commit an assault with intent to rob, they may find robbery. 
 him guilty of the latter offence, and he will be punished 
 
 (k) s. 40. 
 
 (0 Arcli. 445. 
 
 (m) Tliese cases are noticed above. 
 
 (n) =. 42. 
 
214 
 
 LAKOENY. 
 
 accordingly (o). But on an indictment for assault with 
 intent to rob, the defendant cannot be convicted of a 
 common assault (p). 
 
 Post Office 
 offences. 
 
 Offences by 
 Post Office 
 employes. 
 
 Offences by 
 any person. 
 
 LAEOBNY, ETC., IN RELATION TO THE POST OPriOB. 
 
 The law on this subject is contained chiefly in the 
 Post Office Act (q). Two classes of offences may be 
 distinguished, according as the offenders are (a) Post 
 Office employes; (b) Persons generally, whether so 
 employed or not. 
 
 (a.) For a person employed under the Post Office 
 
 To steal, or for any purpose whatever embezzle, 
 secrete, or destroy a post-letter, is a felony, punishable 
 by penal servitude not exceeding seven years, or im- 
 prisonment not exceeding three years. If the letter 
 contains any chattel, money, or valuable security, the 
 punishment is penal servitude to the extent of life, or 
 imprisonment not exceeding four years (r). If the 
 thing stolen, embezzled, &c., is any printed matter ; or 
 if such printed matter is wilfully detained or delayed, 
 the offence is a misdemeanor, punishable by fine or 
 imprisonment, or both (s). 
 
 Contrary to his duty, to open or procure or suffer to 
 be opened a post-letter, or to detain, delay, or procure 
 to be detained, &c., a post-letter, is a misdemeanor, 
 punishable by fine or imprisonment, or both (t). 
 
 (b.) For any person 
 
 To steal from a post-letter any chattel, money, or 
 valuable security; or to steal a post letter-bag, or a 
 
 (o) s. 41. 
 
 (p) R. V. Woodhall, 12 Cox, 240. 
 
 (?) 7 Wm. 4 and 1 Vict. c. 36. 
 
 (r) Ibid. s. 26. 
 
 (s) Ibiil. s. 32. 
 
 (0 Ibid. s. 25. 
 
LABOENY. 215 
 
 post-letter from a post letter-bag, or from a post office, 
 or from any officer of the post office, or from a mail ; or 
 to stop a mail with intent to rob or search the same, 
 is a felony, punishable with penal servitude to the 
 extent of life, or imprisonment not exceeding four 
 years (u). 
 
 To steal or unlawfully take away a post letter-bag 
 sent by a post office packet ; or to steal or unlawfully 
 take a letter out of any such bag ; or to unlawfully 
 open any such bag, is a felony, punishable with penal 
 servitude to the extent of fourteen years, or imprison- 
 ment not exceeding two years (a;). 
 
 To fraudulently retain, or wilfully secrete, keep, or 
 detain, or neglect or refuse to deliver up when required 
 by an officer of the post office, a letter after it has been 
 delivered by mistake or found, is a misdemeanor, pun- 
 ishable by fine and imprisonment (y). 
 
 To solicit or endeavour to procure any other person 
 to commit a felony or misdemeanor punishable by the 
 Post Office Acts is guilty of a misdemeanor, and is 
 liable to imprisonment not exceeding two years (z). 
 
 The property in the article stolen, whether it be Property laid 
 bag, letter, or money, or other goods contained therein, '"„ "jf*™^^*^"^' 
 is to be laid in the postmaster-general (a). 
 
 In connection with this subject, it should be noticed Telegrams, 
 that written or printed messages delivered at a post 
 office for the purpose of being transmitted by a postal 
 telegraph, and every transcript thereof officially made, 
 are deemed post-letters within the above Act (b). For 
 
 (m) ss. 27, 28, 41. 
 
 (a) ss. 29, 41. 
 
 (2/) s. 31. 
 
 (2) s. 36. 
 
 (a) s. 40. As to venue, see s. 37. 
 
 (6) 32 & 33 Vict. c. 73, s. 23. 
 
216 LABOBNY. 
 
 officials of the post office to disclose or intercept tele- 
 graphic messages is a misdemeanor, punishable by im- 
 prisonment not exceeding twelve months (e). 
 
 BEOEIVING STOLEN GOODS. 
 
 Receiving The offence of receiying stolen property, knowing it 
 
 stoiett goods, |.Q jjg^^g \^QQjx stolen, was at common law a misdemeanor 
 
 WI16I1 £1 Tslonv 
 
 whenamisde- Only. By the Larceny Act, 1861, it is made a felony 
 meanor. •£ ^j^^^ principal Crime (stealing, &c.) amounts to a 
 
 felony at common law or by that Act. So that the 
 only case in which receiving still continues a misde- 
 meanor is where the principal crime is not a felony 
 either at common law or by that Act ; for example, re- 
 ceiving goods obtained by false pretences, or obtained 
 by means of the felony established by 31 & 32 Vict, 
 c. 116, s. 1 (d). 
 
 How a receiver Eeceivers, where the principal crime amounts to a 
 may be tried felonv at commou law or by the Larceny Act, may be 
 
 for the felony, . J. f j. -j.- J ' J 
 
 &o. tried m either one ot two capacities : — 
 
 (i.) As accessories after the fact (i.e., of larceny, &c.). 
 
 (ii.) As committers of a distinct or substantive 
 felony — and in this case, whether the principal has or 
 has not been previously convicted, or even if he is not 
 amenable to the criminal law. 
 
 The statute (e) establishing this optional mode of 
 proceeding, enumerates the offenders subject thereto as 
 — those who receive any chattel, money, valuable secu- 
 rity, or other property whatsoever, the stealing, taking, 
 extorting, obtaining, embezzling, or otherwise dis- 
 posing whereof amounts to a felony either at common 
 law or by virtue of that Act, knowing the same to 
 have been feloniously stolen, taken, &c. 
 
 (c) 31 & 32 Vict. c. 110, s. 20. 
 
 (d) R. V. Smith, L. E. 1 C. C. K. 266 ; 39 L. J. (M.C.) 1X2. 
 
 (e) 24 & 25 Vict. c. 96, s. 91. 
 
LARCENY. 217 
 
 The larceny or other felonious taking must be proved. The larceny, 
 For this and every other purpose the principal felon is *"'• 
 a competent witness ; but of course the jury will form 
 their own opinion as to the weight of his testimony ; 
 and if the thief is the only witness, the judge will 
 advise an acquittal (/). 
 
 Next, it must be proved that the goods were received The receiving. 
 by the prisoner into his actual possession ; though a 
 manual possession is not necessary {g). The goods 
 being found in his possession is good presumptive evi- 
 dence of his having received them. 
 
 The knowledge of the prisoner at the time he received The guilty 
 the goods that they were stolen, is proved either directly, knowledge. 
 by the evidence of the principal felon, or circumstan- 
 tially, as by shewing that the prisoner bought them much 
 under their value, denied that he had them in his pos- 
 session, &c. Evidence may also be given that there 
 was found in his possession other property stolen 
 within the preceding twelve months. And again, if 
 evidence has been given that the stolen property has 
 been found in his possession, at any stage of the pro- 
 ceedings evidence may be given of a conviction within 
 the five years immediately preceding of any ofi'ence in- 
 volving fraud or dishonesty. But in this last case 
 seven days' notice in writing must be given to the 
 accused that proof is intended to be given of such 
 previous conviction Qi). 
 
 The allowing evidence of a previous conviction to be Evidence of 
 given during the course of a trial, so that it may affect conviction 
 the minds of the jury, is an exception to the usual 
 policy and practice of our criminal law. As a rule, the 
 only influence which a previous conviction is allowed 
 
 (/) R. V. Robinson, 4 F. & F. 43. 
 Ig) R. V. Smith, 24 L. J. (M.C.) 135. 
 (A) 34 & 35 Vict. c. 112, s. 19. 
 
218 
 
 LABOBNY. 
 
 to exert is, after the verdict has been given, on the 
 judge in determining the sentence. 
 
 Punishment The punishment for the felonious receiving is penal 
 
 .for the felony, gervitude to the extent of fourteen years (i). But re- 
 ceiving a post -letter, a post letter-bag, or any chattel, 
 or money, or valuable security, the stealing, or taking, 
 or embezzling, or secreting whereof amounts to a 
 felony under the Post Office Acts, knowing the same to 
 have been feloniously stolen, &c., and to have been sent 
 or to have been intended to be sent by post, is punish- 
 able by penal servitude to the extent of life, or impri- 
 sonment not exceeding four years {k). 
 
 for the misde- Where the principal offence is a misdemeanor by the 
 meauor, Larceny Act, e.g., if the property has been obtained by 
 
 false pretences, the receiver, knowing that the property 
 has been unlawfully stolen, taken, obtained, converted 
 or disposed of, is also guilty of a misdemeanor, punish- 
 able by penal servitude to the extent of seven years (I). 
 
 for the offence Where the principal offence is punishable on sum- 
 mary conviction, the receiver is liable, on summary 
 conviction, to the same punishment to which the prin- 
 cipal is liable for stealing or taking such property on 
 the same conviction (i.e., the first, second, or sub- 
 sequent) (m). 
 
 Contrary to the general rule, which does not admit 
 of different felonies being charged in different counts 
 of the indictment (w), in an indictment for stealing any 
 property it is lawful to add a count or counts for felo- 
 niously receiving the same or any part or parts thereof. 
 And conversely, in an indictment for receiving it is 
 lawful to add a count for feloniously stealing the same. 
 
 punishable ou 
 
 summary 
 
 conviction. 
 
 Count for 
 receiving in 
 indictment for 
 stealing and 
 vice versa. 
 
 (0 s. 91. 
 
 (A) 7 Wm. 4, and 1 Vict. c. 36, ss. 30, 41. 
 
 (0 5. 95. 
 
 (m) s. 97. 
 
 («) V. p. 329. 
 
LABOBNY. 219 
 
 It is for the jury to say of which offence they find the 
 prisoner guilty ; or if there are more prisoners than 
 one, it is for the jury to say which are guilty of each 
 offence (o). 
 
 Any numher of receivers, though they received at dif- Trial of several 
 ferent times, of the property which has been stolen or '■''<='^'^"'^- 
 otherwise disposed of in such manner as to amount to a 
 felony at common law or by the Larceny Act, may be 
 charged with substantive felonies (i.e., of receiving) 
 in the same indictment, and tried together (p). And, in 
 any case, upon the trial of two or more indicted for 
 jointly receiving, the jury may convict one or more of 
 separately receiving (q). 
 
 With a view to the prevention of crimes of this and Penalties on 
 similar descriptions, it has been provided that any one p^bHc'^^^ac'es^ 
 who keeps a lodging, public, beer, or other house or who harbour 
 place where intoxicating liquors are sold, or any place stoUu^go^odT' 
 of public entertainment or public resort, or a brothel, &c. 
 and knowingly lodges or harbours thieves or reputed 
 thieves, or allows the deposit of goods therein, having 
 reasonable cause for believing them to be stolen, is 
 liable to a penalty not exceeding £10, or, in default of 
 payment, imprisonment not exceeding four months ; or 
 instead, or in addition to such punishment, the court 
 may require him to enter into recognizances for keep- 
 ing the peace or being of good behaviour. There are 
 also provisions for the forfeiture of licences on such 
 conduct (r). Power is given under certain circum- 
 stances to search for stolen property, even without a 
 search warrant (s). 
 
 If a pawnbroker is convicted of receiving stolen Pawnbroker 
 
 receiving. 
 
 (0) 
 
 s. 92. 
 
 
 
 
 
 
 (/-) 
 
 s. 93. 
 
 
 
 
 
 
 (?) 
 
 s. 94. 
 
 
 
 
 
 
 « 
 
 34 & 35 Vict. u. 
 
 112, 
 
 ss. 
 
 10, 
 
 11. 
 
 w 
 
 Ibid. s. 
 
 16. 
 
 
 
 
 
sion. 
 
 220 LAKCENY. 
 
 goods knowing them to be stolen (or of any fraud in 
 his business), the court may direct that his licence 
 shall cease to have effect (t). 
 
 Recent posses- We frequently hear of the so-called doctrine of 
 Recent Possession, that is, of the possession of property 
 within a short time after it has been stolen. Why a 
 matter of mere common sense should be elevated to 
 the style of a " doctrine," it is not easy to see. What 
 is meant is only that, according to the circumstances 
 of the case, the recent possession is evidence that the 
 person in possession stole the property, or received it 
 knowing it to have been stolen. This evidence may be 
 of the strongest, or of hardly any weight at all. It 
 will vary not only according to the length of time, but 
 also according to other considerations, one of the chief 
 of which is the nature of the property, whether it be 
 of a description which can easily pass from one person 
 to another. Thus the possession of a diamond ring a 
 year after the theft would be more indicative of a 
 felonious intent than the possession of a pound of 
 cheese after the lapse of a week (m). 
 
 (i) 35 & 36 Vict. c. 93, s. 38. 
 
 (m) M. v. 'Partridge, 7 C. & P. 551 ; S. v. Langmead, L. & C. 427 ; B. v. 
 Veer, 32 L. J. (M.C.) 33. 
 
( 221 ) 
 
 CHAPTER II. 
 
 EMBEZZLEMENT. 
 
 Embezzlement may be defined as the unlawful appro- Embezzlement 
 priation to Lis own use by a servant or clerk of money ^fftin'^ufshed 
 or chattels received by him for and on account of his from larceny. 
 master or employer. It differs from larceny by clerks 
 or servants in this respect : embezzlement is committed 
 in respect of property which is not at the time in the 
 actual or legal possession of the owner, whilst in 
 larceny it is. An example will illustrate the dis- 
 tinction. A clerk receives £20 from a person in pay- 
 ment for some goods sold by his master ; he at once 
 puts it into his pocket, appropriating it to his own use ; 
 this is embezzlement. The clerk appropriates to his 
 own use £20 which he takes from the till; this is 
 larceny. The line of demarcation between the two 
 offences appears sometimes to be very finely drawn (x). 
 This would be liable to work injustice, were it not for 
 , a provision to which we shall shortly have to refer (y). 
 
 The principal points to be noticed are the follow- 
 ing:— 
 
 (i.) Proof that the prisoner was employed as clerk 
 or servant. 
 
 (ii.) Proof of his receipt for, or in the name of, or on 
 account of, the employer or master. 
 
 (iii.) Proof of the unlawful appropriation. 
 
 (it) It is urged that there is no ground for preserving the distinction. 
 This would especially be the case if the principle of possession of the servant 
 being the possession of the master had been interpreted with the same 
 latitude in criminal and civil cases. — Rose. 453. 
 
 (y) v. p. 224. 
 
clerk or 
 servant. 
 
 222 EMBEZZLEMENT. 
 
 (i.) Proof of the Employment as Clerk or Servant. 
 
 Employment as It IS for the jury to determine whether the prisoner 
 is a clerk or servant within the meaning of the statute, 
 the court explaining what is necessary to constitute 
 such a relation. 
 
 The clerks or servants need not he in the employ- 
 ment of those in trade. The particular name hy which 
 they are called, as accountant, collector, overseer, &c., 
 is not material if the general relationship can be 
 proved (z). It is a very difficult matter to determine 
 whether the required relationship exists. The various 
 tests which have been suggested all appear in turn to 
 have been overruled. The employment need not be 
 continuous, for it was held to be embezzlement though 
 the prisoner was employed to receive in a single instance 
 only (a). The mode of remuneration for service is not 
 decisive, that is, whether by commission or by salary. 
 This will not distinguish an agent from a servant (h). 
 Nor will a participation in the profits of the sale pre- 
 vent the character of servant from arising (c). The 
 question is not decided by the consideration whether 
 the whole or only a part of a man's time is devoted to 
 the other's business {d), nor whether he is bound to 
 obey the latter's directions (e). A person who is em- 
 ployed as servant by several is considered the indi- 
 vidual servant of each (/). 
 
 Embezzlement Embezzlement by persons employed in the public 
 offiJers^"' service, or by police constables, of any chattel, money. 
 
 (2) V. B. V. Squire, E & E. 349. 
 
 (a) S. V. Hughes, 1 Mood. C. C. 370. 
 
 (6) S. V. Bailey, 12 Cox, 56. 
 
 (c) S. V Atkinson, 2 Mood. C. C. 278. 
 
 ((f) B. V. Tite, 30 L. J. (M.C.) 142. 
 
 («) V. E. V. Spencer, E. & E. 299. 
 
 (/) 3 Stark. N. P. 70. The reader is referred to the cases given by 
 Archbold, Eoscoe, &o., for a fuller examination of this difficult point, 
 whether the relationship required by the statute exists ; v. especially 
 B. V. Negus, L. K. 2 C. C. R. 34 ; 42 L. J. (M.C ) 62. 
 
EMBEZZLEMENT. 223 
 
 or valuable security, which is intrusted to, or received, 
 or taken into possession by virtue of their employment, 
 is subjected to generally the same consequences as if 
 the embezzlement were from an ordinary master {g). 
 
 (ii.) The Receipt for, &c., the Master. 
 
 The mere fact of receipt is usually proved by the What will 
 person who gave the money, &c., to the prisoner, or by rece^'lfoi- &c 
 his own admission. That he received it for, in the the master. 
 name of, or on account of his master, the jury may 
 infer from the circumstances of the case. But it will 
 not be embezzlement if the prisoner . received the 
 money from his master in order to pay to a third 
 person (h). Nor if the money is already constructively 
 in the possession of the master by the hands of any 
 other clerk or servant (i). It is immaterial that the 
 money was not really due to the master. The receipt 
 need not now be by virtue of his employment in order 
 to constitute embezzlement ; and therefore it may be 
 ■embezzlement, though the servant had no authority to 
 receive. But it is necessary that the money, &c., 
 should be the property of the master when received by 
 the servant, and therefore money appropriated by a 
 servant in consideration of work which the prisoner 
 did by the unauthorized use of his master's tools, the 
 payer contracting with the servant only, does not 
 constitute embezzlement (k). 
 
 (iii.) The unlawful Apjoropriation. 
 
 The usual evidence given of the appropriation is. The appi-o- 
 that having received the money, &c., the prisoner P''"i'i<»>- 
 denied the receipt, or accounted for other moneys 
 received at the same time, or after, and not for it, or 
 
 (g) 24 & 25 Vict. c. 96, s. 70. Larceny by the abore, f. p. 209. 
 
 (A) B. r. Smith, E. & R. 267. 
 
 (.■) S. Y. Wrii/ht, 27 L. J. (M.C.) 65. 
 
 (/i) S. V. Cullum, L. R. 2 C. C. R. 28 ; 42 L. J. (M.C.) 64. 
 
224 
 
 EMBEZZLEMENT. 
 
 rendered a false account, or practised some other deceit 
 in order to preyent detection (m). 
 
 The mere non-payment to the master of money 
 which the prisoner has charged himself in his master's 
 book with receiving is not embezzlement (n). But, on 
 the other hand, it is no defence to merely shew that he 
 entered the receipt correctly in the master's book (o). 
 If, instead of denying the appropriation of property, 
 the prisoner, in rendering his account, admits the 
 appropriation, alleging 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 (p). But where it is the prisoner's 
 duty, at stated times, to account for and pay over to 
 his employer the money received during those intervals, 
 his wilfully omitting to do so is embezzlement and 
 equivalent to a denial of the receipt of them (q). 
 
 Specific sum to It appears that now some specific sum must be 
 
 be proTsd. proved to havc been embezzled. It will not suffice to 
 
 prove a general deficiency in the prisoner's accounts {r). 
 
 Three acts of There may be charged in the same indictment, and 
 ^y"e ™°°* ^^^ defendant may be tried at the same time for, 
 charged. any number of distinct acts of embezzlement, not 
 
 exceeding three, which may have been committed by 
 him against Her Majesty, or against the same master 
 or employer, within six months from the first to the 
 last of such acts (s). As we have already seen, a 
 person indicted for embezzlement may be found guilty 
 of, and punished for, larceny, and vice versa (t). 
 
 (m) Arch. Q. S. 540. 
 (n) £. V. Hodgson, 3 C. & P. 422. 
 (o) B. V. Lister, 26 L. J. (M.C.) 26. 
 (p) B. V. Norman, C. & Mar. 501. 
 (g) B. T. Jackson, 1 C. & K. 384. 
 
 (r) B. V. Lloyd Jones, 8 C. & P. 288 ; B. y. WolstenMme, 11 Cox, 313 ; 
 see Rose. 457. 
 
 (s) 24 & 25 Vict. c. 96, s. 71. 
 (0 Ibid. a. 72, V. p. 206. 
 
EMBEZZLEMENT. 225 
 
 The punishment for embezzlement is penal servitude Punishment, 
 to the extent of fourteen years (m). 
 
 The summary jurisdiction given by 18 & 19 Vict. Summary 
 c. 126, to justices assembled at petty sessions (x) in J"i"'«'i'<'''°"- 
 certain cases of larceny is extended to similar cases of 
 embezzlement (y). 
 
 Falsification of Accounts. 
 
 An offence of a kindred nature may be noticed here. Falsification of 
 For a clerk, officer, servant, or other employee to wil- ''™°"°**- 
 fully and with intent to defraud, destroy, alter, 
 mutilate, or falsify any of his employer's books, papers, 
 accounts, &c., or make false entries therein, is punish- 
 able by penal servitude to the extent of seven years («). 
 
 Embezzlement hy Bankers, Merchants, Brokers, Attorneys, 
 Agents, or Factors. 
 
 If any such person is intrusted with any money or Embezzlement 
 security, with a direction in writing to apply the same aud'otws 
 for any specified purpose, or to any specified person, intrusted with 
 and he, in violation of good faith, and contrary to the special purpose, 
 terms of such direction, converts the same to his own 
 use, or the use of any person other than the one by 
 whom he is so intrusted ; or (b) if, having been in- 
 trusted as one of the above with any chattel or valuable 
 security, or any power of attorney for the sale or 
 transfer of any share or interest in any stock or fund, 
 for safe custody or for any special purpose, without 
 authority to sell, negotiate, transfer, or pledge, he, in 
 violation of good faith and contrary to the object or 
 purpose specified, sells, negotiates, transfers, pledges, 
 or in any manner converts to his own use, or that of 
 
 (m) 24 & 25 Vict. 0. 96, s. 68. 
 (») T. p. 462. 
 
 (j/) 31 & 32 Vict. c. 116, s. 2. 
 («) 38 & 39 Vict. c. 24. 
 
226 
 
 EMBEZZLEMENT. 
 
 some other person than the one hy whom he is in- 
 trusted, such chattel or security or the proceeds thereof, 
 or the share or interest to which the power of attorney 
 relates, he is guilty of a misdemeanor, and is liahle to 
 penal seryitude to the extent of seven years (a). There 
 is a saying in this section exempting from such liability 
 trustees and mortgagees ; also bankers, &c., in receiv- 
 ing money due on securities, or disposing of securities 
 on which they have a lien. 
 
 Bankers, &c., 
 dealing with 
 property 
 intrusted to 
 them. 
 
 It is a misdemeanor, attended with the same punish- 
 ment, for a banker, merchant, broker, attorney, or agent, 
 with intent to defraud, to sell, negotiate, &c., any pro- 
 perty with which he is intrusted for safe custody (b). 
 So also for any person intrusted with a power of attor- 
 ney for the sale or transfer of any property, to fraudu- 
 lently sell, transfer, or otherwise convert it to his own 
 use, or that of any person other than the one by whom 
 he is intrusted (c). 
 
 Factors or 
 agents charg- 
 ing property 
 intrusted to 
 them. 
 
 Factors or agents intrusted, for the purpose of sale 
 or otherwise, with the possession of any goods or of 
 any document of title to goods, who, without the 
 authority of the principal, for their own use or that of 
 any person other than the one by whom they are so 
 intrusted, and in violation of good faith, make any con- 
 signment, deposit, transfer, or delivery of any such 
 goods or document, by way of pledge, lien, or security 
 for any money or valuable security, borrowed by them 
 (the factors, &c.); or (b), without authority, &c., ac- 
 cept any^ advance of any money or valuable security on 
 the faith of any contract or agreement to consign, &c., 
 such goods or document, are guilty of a misdemeanor, 
 and punished as above. So also are clerks or others 
 knowingly and wilfully assisting in carrying out the 
 
 (<i) 24 & 25 Vict. c. 93, s. 75. 
 (6) Ibid. s. 76. 
 (0 Ibid. =, 77. 
 
EMBEZZLEMENT. 227 
 
 aforesaid measures. A saving clause is added that the Suving clause. 
 
 factor or agent will not be liable for consigning, &c., 
 
 if the property is not made a security for or subject to 
 
 the payment of any greater sum of money than the 
 
 amount which, at the time of the consignment, was due 
 
 and owing to such agent from his principal, together 
 
 with the amount of any bill of exchange drawn by or 
 
 on account of such principal, and accepted by the 
 
 factor or agent {d). 
 
 Embezzlement by Trustees. 
 
 For a trustee (or his representative, s. 1) of pro- Embezzlement 
 perty for the use of some other person, or for any ^^ '™st°"- 
 public or charitable purpose, with intent to defraud, to 
 convert, or appropriate the same to his own use, or that 
 of any other person than the person aforesaid, or for 
 any purpose other than such public or charitable pur- 
 pose; or (b), to otherwise dispose of or destroy the 
 property, is a misdemeanor, punishable by penal servi- 
 tude to the extent of seven years. But no criminal 
 proceedings may be taken without the sanction of the 
 Attorney-G-eneral. And, if civil proceedings have been 
 taken against the trustee, the person who has taken 
 such proceedings may not commence any prosecution 
 under this section without the sanction of the court or 
 judge of such civil proceedings (e). 
 
 Embezzlement by Directors, Officers, and Members of Public 
 Companies and Corporate Bodies. 
 
 The following offences are misdemeanors, punishable Offences by 
 by penal servitude to the extent of seven years : — directors, &c. 
 
 For a director, member, or public officer of a body Appropriating 
 corporate or public company, to fraudulently take or '^^ ""T™"" 
 apply to his own use, or any use or purpose other than 
 
 (d) 24 & 25 Vict. c. 96, s. 78. 
 
 (e) Ibid. s. 80. 
 
 o 2 
 
228 EMBEZZLEMENT. 
 
 the uses or purposes of such body or company, any of 
 the property of the body or company (/). 
 
 Receiving 'Foi a director, public officer, or manager of such 
 
 without enter- ]^,Q^y qj. company, to receive or possess himself of any 
 b°ooks. ^ of the property of the company, &c., otherwise than in 
 payment of a just debt or demand, and, with intent to 
 defraud, to omit to make or have made a full and true 
 entry thereof in the books and accounts of the com- 
 pany {9). 
 
 Fraudulent For a director, manager, public officer, or member, 
 
 faisiBcation of j^]^ intent to defraud, to destroy, alter, mutilate, or 
 
 the books. . •' ,ii ., 
 
 falsify any book, paper, writing, or valuable security, 
 belonging to the body or company ; or (b) to make or 
 concur in making any false entry, or to omit or concur 
 in omitting any material particular in any book of 
 account or other document (h). 
 
 Making false For a director, manager, or public officer to make, 
 statements, &c. circulate, or publish, or concur in making, &c., any 
 written statement or account which he knows to be 
 false in any material particular, with intent to deceive 
 or defraud any member, shareholder, or creditor of 
 such body or company, or with intent to induce any 
 person to become a shareholder or partner therein, or 
 to intrust or advance any property to such body or 
 company, or to enter into any security for the benefit 
 thereof («"). 
 
 No prosecution "With regard to these cases of embezzlement by 
 
 if there has ■, ■, i. j. j.j. i_ r l 
 
 been a dis- bankers, merchants, attorneys, agents, or factors, 
 closure in a trustees, dircctors, officers, or members of bodies cor- 
 
 civil action. , ... -n •• , ■, • 1 
 
 porate or public companies, the provisions as to which 
 are contained in sects. 75 to 84 of the Larceny Act, it 
 is enacted that no person shall be con-victed of any of 
 these misdemeanors if he shall, at any time previously 
 
 (/) 24 & 25 Vict. .-. 96, s. 81 
 (gr) Ibid. =. 82. 
 (A) Ibid. s. 83. 
 (0 Ibid. s. 8i. 
 
EMBEZZLEMENT. 229 
 
 to his being charged with such misdemeanor, have dis- 
 closed the act on oath, in consequence of any action 
 which shall hare heen bond fide instituted by any party 
 aggrieyed ; or if he shall have first disclosed the same 
 in any compulsory examination or deposition before any 
 court upon the hearing of any matter in bankruptcy 
 or insolvency (k). 
 
 For a director, officer, or contributory of a company Falsification in 
 wound up under the Companies Act, 1862, to destroy, "'^^ "^ '^°™: 
 
 •11 i>i-(. .. pany wound 
 
 mutilate, alter, or falsify any books, papers, writings, up. 
 or securities, or to make or be privy to making any 
 false or fraudulent entry in any book or other docu- 
 ment of the company, with intent to defraud or deceive 
 any person, is a misdemeanor, punishable by imprison- 
 ment not exceeding two years Q). 
 
 For an officer of a savings bank to receive any de- Savings baniis. 
 posit and not pay over the same is a misdemeanor, 
 punishable by fine or imprisonment, or both (m). 
 
 (4) 24 & 25 Vict. i;. 96, s. 85. And also nothing in these sections shall 
 entitle any person to refuse to answer a question in a civil proceeding on 
 the ground that it tends to criminate himself. — s. 85. The criminal pro- 
 ceeding is not to deprive any party of his civil remedy, but the conviction 
 is not to be evidence in such civil suit. — s. 86. 
 
 (0 25 & 26 Vict. li. 89, s. 166. 
 
 (m) 26 & 27 Vict. c. 87, s. 9. False statements, returns, &c., by railway 
 companies, v. 29 & 30 Vict. .;. 108, ss. 15-17 ; 31 & 32 Vict. c. 119, s. 5 ; 
 34 & 35 Vict. K,. 78, ». 10. 
 
( 230 ) 
 
 CHAPTEE III. 
 
 FALSE PKETENCES. 
 
 False pretences It is difficult to correctly define the offence of obtain- 
 fromTarce'^ny ^^S property by false pretences. In some cases, on 
 the one hand, there seems little to distinguish it from 
 larceny ; and in others, to distinguish it from a mere 
 non-criminal lie. The most intelligible distinction 
 between false pretences and larceny has been thus set 
 forth (n): " In larceny the owner of the thing stolen 
 has no intention to part with his property therein to 
 the person taking it, although he may intend to part 
 with the possession ; in false pretences the owner does 
 intend to part with his property in the money or 
 chattel, but it is obtained from him by fraud." The 
 line between the two crimes is very narrow. Thus, A. 
 intrusts B. with a parcel to carry to C. D. meets B. 
 and alleges that he is C, whereupon B. giyes him the 
 parcel. It will be larceny if B. had not authority to 
 pass the property ; false pretences if he had (o). The 
 difficulty of discriminating arises chiefly where there 
 has been a constructive taking only, where the owner 
 delivers the property, though the possession is obtained 
 by fraud. The evil which might arise from this state 
 of things is to some extent obviated by a provision 
 that if upon an indictment for false pretences it is 
 proved that the defendant obtained the property in 
 such manner as to amount in law to larceny, he is not 
 on that account to be acquitted (p). Therefore in 
 cases of doubt it is better to indict for false pretences. 
 
 (n) Arch. 362 ; v. White v. Garden, 10 C. B. 927. 
 (o) V. B. V. Wutkins, 1 Leach, 520. 
 Ip) 24 & 25 Vict. c. 96, 5. 88. 
 
EALSE PRETENCES. 231 
 
 Tte points to be proved on an indictment for false 
 pretences are the following : — 
 
 i. The pretence and its falsity. 
 
 ii. That the property or some part thereof was 
 obtained by means of the pretence. 
 
 iii. The intent to defraud. 
 
 i. The pretence must be wholly or in part of an Pretence must 
 existing! fact (q) ; for example, a false statement of one's ]'" °^ *° *^'^'' 
 name and circumstances in a begging letter. But a 
 mere exaggeration will not suffice, as if a person 
 actually in business pretends that he is doing a very 
 good business (r) ; otherwise, if he were not doing any 
 business at all (s). The fact must be an existing fact ; 
 therefore it is not within the act for a person to pre- 
 tend that he will do something which he does not 
 mean to do (t). But a promise to do a thing may 
 involve a false pretence that the promisor has the 
 power to do that thing; and for this an indictment 
 will lie (m). 
 
 Obtaining additional money by stating that a larger 
 amount of goods is delivered than is known to be the 
 case, is within the statute (x). But of course not 
 every breach of warranty or false assertion at the time 
 of a bargain will be treated as a false pretence (y) ; 
 for example, if, in selling an article for a lump sum, 
 the vendor makes a false representation as to the 
 weight in order to induce the purchaser to conclude 
 
 (^) "It may be laid down as a general rule of interpretation of the 
 statute, that wherever a person fraudulently represents as an existing fact 
 that which is not an existing fact, and so gets money, &c., that U an offence 
 within the Act."— Arch. 497. 
 
 (r) B. V. Williamson, 11 Cox, 328. 
 
 (s) S.r. Crabb, 11 Cox, 85. 
 
 It) B. V. Lee, 9 Cox, 304. 
 
 00 JJ. V. Giles, 34 L. J. (M.C.) 50. 
 
 (:!;) B. V. Bagg, 29 L. J. (M.C.) 86. 
 
 ly) S. V. Gudrington, 1 C. &. P. 661. 
 
232 FALSE PRETENCES. 
 
 the bargain (z). However, it seems clear that a false 
 representation respecting an alleged matter of definite 
 fact knowingly made is a false pretence within the 
 statute ; even although the representation is merely as 
 to the quality of the goods sold ; as when the prosecu- 
 tor was induced to purchase a chain on the repre- 
 sentation that it was fifteen carat gold, whereas it was 
 only six carat (a). But if the representation is only 
 what is matter of opinion, and amounts merely to ex- 
 aggerated praise, the party is not criminally liable ; 
 as where the defendant said his spoons were equal to 
 Elkington's (b). 
 
 The pretence, The false pretence need not be expressed in words ; 
 how expressed. -^ ^-^ ^^^^^ jf ^j^^ pretence is signified in the conduct 
 
 and acts of the party; for example, by obtaining 
 goods upon giving in payment a cheque upon a banker 
 with whom the defendant has no account, he believing 
 that it would not be paid on presentation (c) ; or by a 
 person, who was not a member of the university, 
 obtaining goods fraudulently at Oxford through wear- • 
 ing a commoner's cap and gown (d). A false pretence 
 made through an innocent agent is, of course, the 
 same as if made by the defendant himself. 
 
 indictmeat for If the goods are obtained by means of a forged 
 forgery. order, note, or other document, the party should be in- 
 
 dicted for forgery, seeing that the punishment for 
 that offence is much more severe. But the pri- 
 soner will not be acquitted for the false pretence on 
 the ground that he might have been indicted for 
 forgery (e). 
 
 («) B. V. Midgway, 3 F. & F. 838. 
 
 (a) R. V. Astley, L. E. 1 C. C. R. 301 ; 40 L. J. (M.C.) 85. 
 (6) S. V. Bryan, 26 L. J. (M.C.) 8+. 
 
 (o) R. V. Jackson, 3 Camp. 370; v. R. v. Hazelton, L. E. 2 C. C. R. 134; 
 44 L. J. (M.C.) 11. 
 
 (d) R. V. Barnard, 7 C. & P. 784. 
 (c) 14 & 15 Vict. 0. 100, s. 12, 
 
FALSE PEETENCES. 
 
 233 
 
 • It will suffice if the falsity of the substance of the 
 pretence is proyed, although every particular is not 
 established (/). 
 
 ii. The intent to defraud. 
 
 As in other cases, the intent is generally to be The intent to 
 gathered from the facts of the case. It is sufficient ^^ ^^^^' 
 to allege in the indictment, and to prove at the trial, 
 an intent to defraud generally, vyithout alleging or 
 proving an intent to defraud any particular person {g). 
 
 It has been held that to support the evidence of Evidence of 
 intent to defraud proof that the defendant has svhse- °y^^^ ^^'^' 
 
 ^ tences. 
 
 quently obtained other property from some other person 
 by the same pretence is not admissible (h) ; but that 
 evidence of similar false pretence on a prior occasion is 
 admissible (i). 
 
 Obtaining property by false pretences is a mis- Punishment, 
 demeanor, punishable by penal servitude to the extent 
 of five years (h). It is subject to the provisions of the 
 Vexatious Indictments Act (T). As we have seen, the 
 defendant is not entitled to be acquitted for the mis- 
 demeanor because the facts shew that the offence 
 amounts to larceny ; but no person tried for such 
 misdemeanor is liable to be afterwards prosecuted for 
 larceny upon the same facts (m). 
 
 Winning at play by fraud is punishable as for 
 obtaining money by false pretences (w). 
 
 Closely allied to the offence of false pretences is that 
 
 (/) E. V. mil, R. & R. 190. 
 
 (^) 24 & 25 Vict. c. 96, s. 88. 
 
 (A) R. V. ITolt, 30 L. J. (M.C.) 11. 
 
 (!-) S. V. Francis, h. R. 2 C. C. R. 128; 43 L. J. (M.C.) 97. 
 
 (It) 24 & 25 Vict. u. 96, ». 88. 
 
 (l) V. p. 344 
 
 (m) 24 & 25 Vict. c. 96, s. 88; v. S. v. Bulmcr, 33 L. J. (M.C.) 171. 
 
 (k) 8 & 9 Vict. c. 109, s. 17. 
 
234 FALSE PEETENCES. 
 
 Inducing exe- of inducing persons hy fraud to execute valuable 
 able™ curitiir Securities. For any person, with intent to defraud or 
 by fraud. injure another, by any false pretence to fraudulently 
 cause or induce any person to execute, make, accept, 
 indorse, or destroy the whole or any part of any valu- 
 able security; or (b) to write, impress, or affix his 
 name, or the name of any other person, or of any 
 company, firm, or co-partnership, or the seal of any 
 body corporate, company, or society, upon any paper or 
 parchment, in order that the same may be afterwards 
 made, or converted into, or used, or dealt with as a 
 valuable security, is a misdemeanor, punishable as ob- 
 taining by false pretences (o). 
 
 FALSE PEESONATION 
 
 False perso- The obtaining goods, money, or other advantage 
 
 nation ^^ ^^^^^ persouation is a crime similar to false pre- 
 
 tences. At common law false personation is punishable 
 as a cheat or fraud; but certain particular cases are 
 dealt with by statute. This crime is also closely con- 
 nected with forgery ; and many statutes providing 
 against forgery at the same time provide against false 
 personation, 
 
 of seamen, Of Seamen, soldiers, &c. — For a person, in order to 
 
 receive any pay, wages, prize money, &c., payable, or 
 supposed to be payable, or any effects or money in 
 charge, or supposed to be in charge, of the Admiralty, 
 falsely and deceitfully to personate any person entitled, 
 or supposed to be entitled, to receive the same, is 
 a misdemeanor, punishable by penal servitude to the 
 extent of five years; or, on summary conviction, by 
 imprisonment not exceeding six months ( p). 
 
 of soldiers, To knowingly and wilfully personate or falsely 
 
 assume the name or character of, or to procure others 
 
 (o) 24 & 25 Vict. c. 96, s. 90. 
 
 Ip) 28 & 29 Vict. c. 124, s. 8 ; v. s. 9. 
 
FALSE PRETENCES. 235 
 
 to personate, &o., a soldier or other person who shall 
 have really served, or be supposed to have served, in 
 Her Majesty's army or in any other military service, or 
 his representatives, in order to receive his vyages, prize 
 money, &c., due or payable, or supposed to be due or 
 payable, for service performed, or supposed to be per- 
 formed, is a felony, punishable by penal servitude to 
 the extent of life {q). It is no defence to an indict- 
 ment under section 49 that the person was authorized 
 to personate the soldier ; or that he had bought from 
 him the prize money to which the latter was entitled (r). 
 
 Owners of Stock, &c. — To falsely and deceitfully of owners of 
 personate the owner of any share or interest in any ^'°''''' 
 stock, annuity, or public fund, which is transferable 
 at the Bank of England or Bank of Ireland ; or (b) the 
 owner of any share or interest in any capital stock of 
 any body corporate, company, or society established by 
 charter or Act of Parliament ; or (c) the owner of any 
 dividend or money payable in respect of any such share 
 or interest, and thereby to transfer, or endeavour to 
 transfer, any such share or interest, or receive, or endea- 
 vour to receive, any money so due, as if the offender 
 were the true and lawful owner, is a felony, punishable 
 by penal servitude to the extent of life (s). 
 
 To obtain property in general. — By the False Per- of owners of 
 sonation Act, 1874, it is provided that, for any person ^n°^i^^*^ "^ 
 to falsely and deceitfully personate any person, or the 
 heir, executor, or administrator, wife, widow, next of 
 kin, or relation of any person, with intent fraudu- 
 lently to obtain any land, chattel, money, valuable 
 security, or property, is a felony, punishable by penal 
 servitude to the extent of life (t). 
 
 (7) 2 & 3 Wm. 4, c. 53, s. 49 ; 7 Geo. 4, u. 16, ». 38. 
 
 (>•) R. V. Lake, 11 Cox, 333. 
 
 (s) 24 & 25, Vict. u. 98, s. 3 ; v. also National Debt Act, 1870 QV.i k 34 
 Vict. c. 58, s. 4); India Stock (26 & 27 Vict. c. 73, s. 14); Companies 
 Act, 1867 (30 & 31 Vict. c. 131, s. 35). 
 
 («) 37 & 38 Vict. 0. 36, a. 1 ; v. also s. 2. 
 
236 
 
 FALSE PRETENCES. 
 
 Personating 
 bail. ' 
 
 Bail. — Without lawful authority or excuse (which it 
 lies on the accused to prove), in the name of another 
 person to acknowledge any recognizance or bail, or 
 any cognovit actionem, or judgment, or any deed or 
 other instrument, before any court, judge, or other 
 person lawfully authorized in that behalf, is a felony, 
 punishable by penal servitude to the extent of seven 
 years («). 
 
 What cheats 
 are indictable. 
 
 CHEATING. 
 
 Cheating is a comprehensive term, including in its 
 wider signification False Pretences, False Personation, 
 and other crimes which are specially provided for. A 
 cheat at common law is the fraudulent obtaining the 
 property of another by any deceitful and illegal practice 
 or token which affects or may affect the public (x). 
 Thus, the leading characteristic of such a cheat is 
 the publicity of its effects. Therefore, a cheat or 
 fraud effected by an unfair dealing and imposition on 
 an individual is not the subject of an indictment at 
 common law. Of course many acts of cheating are 
 not punishable at all by the criminal law ; the person 
 wronged being left to his remedy by civil action. 
 
 Cheats at The chief classes of offences regarded as cheats at 
 
 common law. common law are the following : — 
 
 Against public justice, e.g., counterfeiting a dis- 
 charge. 
 
 Against public health, e.g., selling unwholesome 
 provisions. 
 
 Against public economy, e.g., by using false 
 weights or measures. 
 
 (u) 24 & 25 Vict. c. 98, s. o-i. Voters at elections, parliamentary and 
 municipal, 35 & 36 Vict. cc. 33, 60 ; 5 & 6 Wm. 4, c. 76 : 6 & 7 \'ict. 
 c. 18. 
 
 (*■) V. 2 Kuss. 604. 
 
FALSE PBETENOES. 237 
 
 There must be a plausible contrivance, as in the 
 last instance, against which common prudence could 
 not have guarded. Thus, though selling by false 
 weights or measures is a misdemeanor, selling under 
 weight is merely actionable. 
 
 Apart from the common law crime, a great multitude Deceits 
 of statutes are designed to restrain and punish parti- g^'^tute^'^ ^ 
 cular deceits, or deceits in particular trades. Amongst 
 the more general we may notice the laws preventing 
 cheating by : — 
 
 Counterfeit trade-marks (y). 
 
 Fraudulent conveyances (z). 
 
 The general punishment for this misdemeanor is fine I'unishment 
 or imprisonment, or both. 
 
 (y) V. p. 118. 
 
 («) 13 Eliz. c. 5 ; 27 Eliz. c. 4. For other common law cheats, v. 2 Russ. 
 604, et sej. 
 
( 238 ) 
 
 CHAPTEE IV. 
 
 BUEGLAEY, ETC. 
 
 Burglary, The offence of Burglary (in the strict signification of 
 
 defiDition at ^j^g term) is thus defined at common law : The break- 
 common law, . ^ ^ . 
 
 ing and entering of the dwelling or mansion-house of 
 
 another in the night time with intent to commit a 
 felony (a). The limits of burglary proper have been 
 extended ; and the punishment of other crimes closely 
 connected with burglary has been also separately pro- 
 vided for by statute. The crime is thus described in 
 by the Larceny the Larceny Act : " Whosoever shall enter the dwell- 
 Act. ing-house of another with intent to commit any felony 
 
 therein, or being in such dwelling-house shall 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 " (6). 
 
 Four points present themselves for consideration : 
 the time, place, manner, and intent. 
 
 The time. i. Time. — Formerly great uncertainty existed as to 
 
 what constituted night — whether it was the interval 
 between sunset and sunrise, whether it included twi- 
 light, &c. The matter has been settled by statute'. 
 As far as, regards burglary and other offences treated 
 
 (a) 3 Inst. 63. 
 
 (6) 24 & 25 Vict. c. 96, s. 51. "This is an excellent instance of the 
 way in which, by the combined operation of common and statute law, 
 definitions are made, as it were, to stand on their heads. The common law 
 being a very rude system, involving great severity of punishment, affixed 
 special names to complications of crimes. The statute law look up the 
 complicated definition as the starting point, and inserted minor offences to 
 fill up the gap left by the common law." — Fitz. St. 139. 
 
BURGLABY, ETC. 239 
 
 of in the Larceny Act the night is deemed to commence 
 at nine o'clock in the evening, and to conclude at six 
 o'clock on the following morning (c). 
 
 Both the breaking and the entering must take place 
 at night. If either he in the daytime, it is not burglary. 
 But the breaking may take place on one night and the 
 entering on another, provided that the breaking is with 
 intent to enter, and the entering is with intent to 
 commit a felony (d). 
 
 ii. Place. — It must be the dwelling-house of another. The place. 
 To constitute a dwelling-house for the purposes of the 
 statute dealing with burglary and similar offences (the 
 Larceny Act), the house must be either the place where 
 one is in the habit of residing, or some building between 
 which and the dwelling-house there is a communica- 
 tion, either immediate or by means of a covered and 
 inclosed passage leading from the one to the other ; 
 the two buildings being occupied in the same right (e). , 
 It must be the house of another; therefore a person 
 cannot be indicted for a burglary in his own house, 
 though he" breaks and enters the room of his lodger 
 and steals his goods. 
 
 The decisions as to what places satisfy the require- 
 ments of burglary have been numerous, and, to some 
 extent, conflicting. We may gather the following 
 facts : — 
 
 The building must be of a permanent character ; The nature of 
 therefore a tent or booth will not suffice, although the ^^^ building:. 
 owner lodge there. The tenement need not be a dis- 
 tinct building; thus chambers in a college or inn of 
 court will suffice. 
 
 As to the nature of the residence which is necessary. — 
 
 (c) 24 & 25 Vict. c. 96, i. 1. 
 
 yt) E. T. Smith, R. & R. 417. 
 
 (e) E. T. Jenkins, R. & R. 224 ; 24 & 25 Vict. c. 96, s, 53. 
 
240 
 
 BUBGLAEY, ETC. 
 
 Where part of 
 the house is 
 let. 
 
 What amounts The temporary absence of the tenant is not material 
 to resi ence. •£ j^^ ^^^ ^^ intention of returning, though no one be 
 in during the interyal. It will suffice if any of the 
 family reside in the house, even a servant (f ), unless 
 the servant is there merely for the purpose of pro- 
 tecting the premises (^). It seems that sleeping is 
 necessary to constitute residence (h). 
 
 In the case of hiring a part of a house, the part let 
 off may be considered as the dwelling-house of the 
 hirer if the owner does not himself dwell in the house, 
 or if he and the hirer enter by different doors; that 
 is, of course, provided that the hirer satisfies the other 
 requirements of residence given above. If he does not, 
 the place cannot be the subject of burglary at all ; it 
 is not the dwelling-house of the lodger or tenant, 
 because there is no residence; nor of the owner, be- 
 cause it is severed by the letting («'). But if the owner 
 himself, or any of his family, lie in the house, and 
 there is only one outward door at which they and the 
 lodger enter, the lodger is regarded as an inmate; and 
 therefore the house must be described as that of the 
 owner (k). 
 
 At common law a church might be the subject of 
 burglary ; but this case is now specially provided for 
 by statute (l). 
 
 The manner. 
 
 iii. Manner. - 
 entering. 
 
 -There must be both a breaking and an 
 
 The breaking. As to the hreahiug. — It must be of part of the house ; 
 therefore it will not suffice if only a gate admitting 
 
 (/) iJ. V. Westwood, R. & R. 495. 
 
 (g) R. T. Flannagan, E. & R. 187. 
 
 (A) R. V. Martin, R. & R. 108. 
 
 (i) T. Arch. 523, 524, and cases quoted there. 
 
 (A) T. R. T. Rogers, 1 Leach, 89. 
 
 (0 V. p. 244. 
 
BUBGLAUY, ETC. 241 
 
 into the yard is broken. But the breaking is not 
 restricted to the breaking of the outer wall, or doors, 
 or windows ; if the thief gains admission by the outer 
 door or window being open, and' afterwards breaks or 
 unlocks an inner door for the purpose of plundering 
 one of the rooms, it is burglary (m). This will apply 
 especially to the case of servants, lodgers, &c., who are 
 lawfully in the house. Breaking chests or cupboards 
 does not satisfy the requirements of burglary. 
 
 The breaking is either actual or constructiye. Actual, Actual break- 
 when the offender, for the purpose of getting admission '°^' 
 for any part of his body, or for a weapon or other 
 instrument, in order to effect his felonious intention, 
 breaks a hole in the wall of a house, breaks a door or 
 window, picks the lock of a door, or opens it with a 
 key, or even by lifting the latch, or unlooses any 
 other fastening to doors or windows which the owner 
 has provided (n). It is not burglary if the entry is 
 made through an open window or door, or through an 
 aperture (other than a chimney), provided that the 
 thief does not break any inner door. Nor is raising a 
 window which is already partly open ; but it has been 
 decided that lifting the flap of a cellar which was kept 
 down by its own weight was burglary (o). 
 
 The breaking is constructive, where admission is Constructive 
 gained by some device, there being no actual breaking. '"'^^ "''=■ 
 As, for example, to knock at the door and then rush in 
 under pretence of taking lodgings, and fall on and rob 
 the landlord ; or to procure a constable to gain admit- 
 tance in order to search for traitors, and then to bind 
 the constable and rob the house. These are breaches 
 sufficient to constitute burglary, for the law will not 
 suffer itself to be trifled with by such evasions (p). So 
 
 (m) B. V. Johnson, 2 East, P. C. 488. 
 (n) 3 Inst. 64 ; 1 Hale, P. C. 552. 
 (o) S. V. Russell, 1 Mood. C. C. 377. 
 (p) 4 Bl. 220. 
 
242 BUEGLAET, ETC. 
 
 for servants to conspire with a robber, and let him into 
 the house at nighty is a burglary in both. To obtain 
 admission to a house by coming down the chimney is 
 sufficient, for the chimney is as much closed as the 
 nature of things will admit ; but getting through a 
 hole in the roof left to admit light is not (q). 
 
 Entry. As to the entry. — The least degree of entry with any 
 
 part of the body, or with any instrument held in the 
 hand, will suffice ; for example, stepping over the 
 threshold, putting a finger or hook in at the open 
 window in order to abstract goods. 
 
 Breaking out. Though formerly there were doubts on the subject, 
 it is now provided by statute that it is burglary for a 
 person who has entered the dwelling-house of another 
 with intent to commit a felony therein, or for a person 
 who in such dwelling house {e.gi., a servant) has com- 
 mitted a felony therein, to hreak out (r). 
 
 Attempt. When the breaking with intent to commit a felony is 
 
 proved, but there is no proof of entry, the jury may 
 convict the prisoner of an attempt to commit bur- 
 glary (s). 
 
 The intent to 
 commit a 
 felony. 
 
 IV. 
 
 The Intent. — To constitute a burglary, there must 
 be an intent to commit some felony in the dwelling- 
 house, otherwise the breaking and entry will only 
 amount to a trespass (t). It must be either proved from 
 evidence of the actual commission of the felony, or im- 
 plied from some overt act if the felony is not actually 
 carried out. For it is none the less burglary because 
 the felony which is intended is not perpetrated. 
 
 (?) S. V. Brice, E. & R. 450. 
 (r) 24 & 25 Vict. c. 96, s. 51. 
 (s) M. V. Spanner, 12 Cox, 155. 
 (<) 1 Hale, P. C. 561. 
 
BURGLARY, ETC. 243 
 
 Burglary is a felony, punishable by penal servitude Punishment. 
 to the extent of life (w). 
 
 Two or three crimes connected with the subject of 
 burglary remain to be considered : — 
 
 Entering a dwelling-house in the night, with intent to Entering 
 commit a felony— the offence differing from burglary at''nighfw™h° 
 inasmuch as there is no breaking — is a felony, punish- intent, &c. 
 able by penal servitude to the extent of seven 
 years {x). 
 
 Being found hy night armed with any dangerous or Armed at 
 offensive weapon -or instrument, with intent to break "nt^'nt^^,!' 
 or enter into any dwelling-house, or other huilding 
 whatsoever, and to commit a felony therein ; (N.B. An 
 intent either to break or to enter will suffice, also that 
 the offence is not confined to dwelling -houses. Proof 
 must be given of an intent to break into or enter a 
 particular building ; proof of a general intent will not 
 suffice) («/) ; 
 
 or, being found by night in possession, without law- Possession of 
 ful excuse, of any house-breaking implement, or being house-brealtmg 
 found with the face blackened or otherwise disfigured, night. 
 with intent to commit a felony ; 
 
 or, being found by night in any dwelling-house or Being in 
 other building, with intent to commit a felony therein, h^use "Ic 
 
 is a misdemeanor, punishable by penal servitude to 
 the extent of five years (z). If any of the above mis- 
 demeanors be committed after a previous conviction for 
 felony, the penal servitude is from seven to ten years ; 
 if after a previous conviction for one of such mis- 
 demeanors, the penal servitude is from five to ten 
 years (a). 
 
 (m) 24 & 25 Vict. c. 96, s. 52. 
 
 {x) Ibid. s. 54. 
 
 (j/) R. r. Jarrald, 32 L. J. (M.C.) 258. 
 
 («) 24 & 25 Vict. c. 96, s. 58. 
 
 (o) Ibid. s. 59; 27 & 28 Viot. c. 47, s. 2. 
 
 R 2 
 
244 
 
 BURGLARY, ETC. 
 
 HOTTSEBBBAXnSTG. 
 
 Housebreaking The chief distinction between this crime and burglary 
 
 distinguished 
 from burglary. 
 
 distinguisiied jg ^jjg^j. ^]^g former may be committed by day, the latter 
 
 Nature of the 
 the crime. 
 
 by night only. There is also a difference to be noticed 
 as to the structure which may be the subject of the 
 crimes. Housebreaking extends to school-houses, shops, 
 warehouses, and counting-houses, as well as dwelling- 
 houses, also any building within the curtilage of a 
 dwelling-house and occupied therewith, but not being 
 part thereof according to the provision of section 53, 
 noticed aboye (6). 
 
 This crime consists in the breaking and entering any 
 such house with the intention of committing a crime 
 therein, or in the case of one being in such house, com- 
 mitting a felony therein, and breaking out of the same. 
 The breaking and entering will be proTed as in 
 burglary. 
 
 The punishment for this felony varies according to 
 whether the projected felony, the object of the breaking, 
 is actually committed, or there is only an intention ; in 
 the former case the extent of the penal servitude being 
 fourteen years, in the latter seven years (e). On an in- 
 dictment for the former, the prisoner may be convicted 
 of the latter. Also, if the indictment charges the 
 breaking and stealing, if the prosecution fail to prove 
 the breaking, the prisoner may be convicted of larceny 
 in a dwelling-house (d), or of simple larceny. 
 
 Sacrilege. 
 
 Breaking, &c., Breaking and entering a church, chapel, meeting- 
 
 ciiurch, chapel, j^g^gg^ qj. other place of divine worship, and committing 
 
 a felony therein, or, if already therein, committing a 
 
 Punishment. 
 
 (6) 24 & 25 Vict. c. 96, s. 55 ; t. p. 239. 
 (o) Ibid. ss. 56, 57. 
 (cf) V. p. 245. 
 
BUBGLAEY, ETC. 245 
 
 fBlbny and breaking out, is a felony, punishable by 
 penal servitude to the extent of life (e). If the pro- 
 jected felony is not actually committed, but the intent 
 to commit is proved, the limit of the penal servitude is 
 seven years (/). 
 
 The proof is generally the same as that in house- 
 breaking. It seems that the articles stolen need not be 
 such as are used for divine service (gi). 
 
 Larceny in a Dwelling-house. 
 
 This crime differs from housebreaking inasmuch as Larceny in a 
 there need not be any breaking, nor any entry with a dwelling- 
 view to the commission of the larceny. As in burglary, 
 the building must be proved to be a dwelling-house, or 
 some building occupied therewith or communicating in 
 the manner before described (A). 
 
 Stealing in such dwelling-house any chattel, money, Punishment. 
 or valuable security to the value in the whole of £5 or 
 more, is a felony, punishable by penal servitude to the 
 extent of fourteen years (i). And although the value 
 does not amount- to £5, the punishment is the same if 
 the thief by any menace or threat puts any one in the 
 dwelling-house in bodily fear {k). 
 
 The goods must be under the protection of the Goods to be 
 house, and not in the personal care of the owner, ""^f"^ ^^t p'"" 
 
 „ „ , . tection of the 
 
 ihus, to steal a sum or money from a person s pocket house. 
 while he is in the house, is not within the statute, 
 unless, indeed, the clothes containing such pocket had 
 been put off, in which case they would be under the 
 
 («) 24 & 25 Vict. c. 96, ». 50. 
 
 (/) Ibid. s. 57. 
 
 (jf) Arch. 420; B. v. Eourhe, K. & R. 386. 
 
 (A) V. p. 239. 
 
 (»•) 24 & 25 Vict. u. 96, ». 60. 
 
 l/i) Ibid. s. 61. 
 
246 BURGLARY, ETC. 
 
 protection of the house (l). It was decided in the same 
 case that it is a question for the court, and not for the 
 jury, whether the goods are under the protection of the 
 house or in the personal care of the owner (m). It 
 appears now to be settled that the fact that the larceny 
 was committed in the thief's own house does not take 
 the case out of the statute (w). 
 
 EECAPITULATION. 
 
 Inasmuch as there is great danger of confusion and 
 considerable intricacy in the definitions, it will be well 
 to recapitulate tTie distinctions between certain crimes 
 partaking of the general character of fraud. A few 
 general remarks on the class as a whole will be added. 
 
 Larceny and First, as to Larceny and Embezzlement. The gist of 
 embezzlement, ^.j^g Jitter offeuce is that, in the case of appropriation by 
 a servant or clerk of money or chattels received by him 
 for his master or employer, such money or chattels are 
 not at the time of appropriation in the actual or con- 
 structive possession of the master or employer ; or, in 
 other words, the prisoner intercepts the property on its 
 way to the possession of the master or employer. In 
 more than one direction does this crime very closely 
 border on larceny. Thus difficult points may arise on 
 the questions — whether the appropriator were a serv- 
 ant; whether the master were in possession of the 
 property, &c. 
 
 Larceny and Between Larceny and False Pretences the main dis- 
 
 false pretences. tJuction is, that in the former the property is not 
 
 passed by the owner to the thief (and generally the 
 
 possession is not intended to be passed) ; while in the 
 
 (J) B. V. Thomas, Car. Sup. 295. 
 
 (m) This seems to be another invasion of the province of the jnry. 
 
 (n) S. V. Bowden, 1 C. & K. 147. 
 
BUEGIiAKY, ETO 247 
 
 latter, the property is passed to the defendaflt, but this 
 is brought about by fraud. Here, again, subtle questions 
 arise as to the authority to pass the property, &c. 
 
 The distinction of Robbery from other kinds of larceny Robbej-y. 
 is, that in the former case there must have been a felo- 
 nious taking from the person, or in the presence of 
 another, accompanied either by violence or a putting to 
 fear. 
 
 In Burglary there is a limitation in certain respects Burglary, 
 not necessary in simple larceny : as to the time, viz., at 
 night ; as to the place, viz., a dwelling-house ; as to the 
 manner, viz., the breaking and entering, or breaking 
 out. In one point burglary is wider in its scope — there 
 need not be an actual larceny ; it will suffice if there is 
 an intent to commit a felony. 
 
 Between Burglary and Househreahing the distinction Burglary aud 
 is that the former must be committed at night, and is housebreaking. 
 more limited with respect to the buildings which are 
 its subjects. 
 
 Between Househreahing and Larceny in a dwelling- Housebreaking 
 house there is the distinction as to the breaking, and a'dwdUng- '" 
 also as to the building, as to which the latter crime is house. 
 on the same footing as burglary. 
 
 Sir James Stephen (o) proposes a comprehensive de- Proposed defi- 
 finition of theft, to include not only all that usually °''''""''' *''"f*- 
 now goes by the name of Larceny, but also Embezzle- 
 ment, Obtaining by False Pretences, and other " illegal 
 and malicious transfers of any of the advantages, 
 derived from property, from the person entitled to 
 them to some other person ;" thereby abolishing " five 
 or six useless and intricate distinctions between cognate 
 crimes," and doing away with " all the technicalities 
 
 (o) Gen. View of Crim. Law, 129. 
 
248 
 
 BURGLAEY, ETC. 
 
 about the kinds of property which are the subjects of 
 larceny, and with those which arise out of the obscure 
 doctrine of possession. 
 
 The definition'. The definition is — " To steal is unlawfully, and with 
 intent to defraud, by takitfg, by embezzlement, by 
 obtaining by false pretences, or in any other manner 
 whatever to appropriate to the use of any person any 
 property whatever, real or personal, in possession or in 
 action, so as to deprive any other person of the advan- 
 tage of any beneficial interest at law, or in equity, 
 which he may have therein.". 
 
 Its innova- 
 tions. 
 
 This definition " would include a great variety of 
 fraudulent breaches of trust, many of which are now 
 unpunished, or are punished, if at all, by special enact- 
 ments, the construction of which is doubtful." The 
 chief points in which it difi'ers from the existing law 
 are two : (a) " It takes, as the test of criminality, an 
 intention to defraud at the time of appropriation of the 
 property, and not at the time of its asportation." It is 
 obvious that the moment of appropriation is the really 
 critical time, (b) " It views, as the subject-matter of 
 larceny, the beneficial interest of the proprietor, and 
 not his specific right of possessing a specific thing." 
 Thus the temporary use of an article would be as much 
 the subject of larceny, if obtained with the intent to 
 defraud, as the absolute permanent deprivation. 
 
( 249 ) 
 
 CHAPTER V. 
 
 FORGERY. 
 
 FoEGBRY may be described, in general terms, 'as the Forgery 
 false making (or alteration) of an instrument (or part ^^'^^ ^ ' 
 thereof) 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 {p). 
 
 The statute law on this subject is chiefly contained 
 in one of the Consolidated Acts of 1861 — The Forgery 
 and False Personation Act (q). These laws are not 
 careful to bring themselves within the compass -of any 
 definition; and they frequently deal with offences 
 which do not strictly fall under the principal heading. 
 Thus, in the Forgery Act we shall find noticed many 
 oflfences which, " though not amounting to forgery, faci- 
 litate, or are steps towards the commission of that 
 crime, or are of a somewhat similar nature." 
 
 It may be premised that forgery is very closely allied Forgery and 
 to obtaining by false pretences (r). Indeed, " if there ^^''' P'-^'^'«^es. 
 were no special provisions on the subject, many cases of 
 forgery would be punishable as cases of obtaining goods 
 or money by false pretences" (s). It is needless to say 
 that forgery is treated as a much more serious crime 
 than false pretences. 
 
 We shall in the first place notice with what instru- 
 
 (p) V. 2 East, p. C. 991 ; 4 Bl. 247. 
 
 (q) 24 & 25 Vict. c. 98. When merely a section is quoted in this 
 chapter it must be understood to be a section of this statute. 
 (r) V. p. 232. 
 (5) Fitz. St. 141. 
 
250 
 
 FOEGEBY. 
 
 ments the statute deals, and what are left to the 
 punishment at common law; and then examine the 
 nature of the crimes which may be committed with 
 regard to these instruments. 
 
 Needless 
 verbosity of 
 the Forgery 
 Act. 
 
 The statute is a model of excessive and needless intri- 
 cacy. It consists of fifty-six sections, of which about 
 half are merely enumerations of particular classes of 
 instruments which it is felony to forge. Inasmuch as 
 in almost every case the punishment is the same " the 
 greater part of the law is perfectly needless, and might 
 be condensed into one section as follows : ' Whosoever 
 maliciously, and for the purpose of fraud or deceit, shall 
 forge anything written, printed, or otherwise made 
 capable of being read, or utter any such forged thing, 
 knowing the same to be forged, shall, upon conviction, 
 be sentenced to penal servitude for life, or for any term 
 not less than three (t) years, or to imprisonment, with 
 or without hard labour, for any term not exceeding two 
 jeats ' " (u). 
 
 Instruments 
 dealt with in 
 the Forgery 
 Act enume- 
 rated. 
 
 But as we are concerned with the law as it is, not as 
 it might be, it will be our task to enumerate the classes 
 of instruments, the forgingr, or altering, or the offering, 
 uttering, disposing of, or putting off (knowing the same 
 to be forged or altered) of which is a felony. In each 
 case, unless otherwise specified, the punishment is that 
 indicated above, viz., penal servitude from five years to 
 life, or imprisonment not exceeding two years. 
 
 The Great Seal of the United Kingdom ; the Queen's 
 Privy Seal ; her Eoyal Sign Manual, &c. ; and docu- 
 ments to which any of these are attached (sect. 1). 
 
 Transfer of stock, power of attorney, &c. (sect. 2). 
 
 (Q Now five. 
 00 Fitz. St. U2. 
 
POEGERT. 251 
 
 Attestation to a power of attorney, &c. Maximum 
 of penal servitude, seven years (sect. 4). 
 
 False entry or alteration in the books of the public 
 funds (sect. 5). 
 
 False dividend-warrant by employees of Bank of 
 England or Bank of Ireland. Maximum, seven years 
 (sect. 6). 
 
 East India bonds (v) (sect. 7). 
 
 Exchequer bills, bonds, or debentures (x) (sect. 8). 
 
 Bank notes, bills, &c., or indorser's assignment 
 thereof (sect. 12). 
 
 Deeds, bonds, assignments of bonds, or names of 
 attesting witnesses (sect. 20). 
 
 Wills, codicils, &c. (sect. 21). 
 
 Bills of exchange, or any acceptance, indorsement, 
 or assignment thereof; promissory notes, or any in- 
 dorsement or assignment thereof (y) (sect. 22). 
 
 Undertakings, warrants, orders, receipts, &c., for 
 payment of money, delivery or transfer of goods, &c. 
 (sect. 23). 
 
 Obliterating or altering crossings on cheques (sect. 
 25). 
 
 Debentures. Maximum, fourteen years (sect. 26). 
 
 Proceedings of courts of record or equity, &c. Maxi- 
 mum, seven years (sect. 27). 
 
 False copies or certificates of record by an officer of 
 
 («) For statutes dealing with forgery of other East India Securities, v . 
 Ai-ch. 634. 
 
 (a;) See also 29 & 30 Vict. c. 25, s. 15. 
 
 (y) V. s. 24'as to making, accepting, &c., any bill, note, &o., by procura- 
 tion or otherwise, for any other person, without authority ; or uttering 
 the same knowing it to have been so made, &c. The punishment is penal 
 servitude to the extent of fourteen years. 
 
252 FOEGEEY. 
 
 the court; so also for any other person to use such 
 false process. Maximum, seven years (sect. 28). 
 
 Instruments made evidence by statute. Maximum, 
 seven years (sect. 29). 
 
 Court roll, or copy thereof, relating to copyhold 
 estates (sect. 30). 
 
 Certificates and other writings relating to the regis- 
 try of deeds. Maximum, fourteen years (sect. 31). 
 
 Summons, conviction, order, or warrant of magis- 
 trates. Maximum, five years (sect. 32.) 
 
 Name of Accountant-General of Chancery (a). Maxi- 
 mum, fourteen years (sect. 33). 
 
 Licence or certificate of marriage. Maximum, seven 
 years (sect. 35). 
 
 Eegister of births, baptism, deaths, marriages, 
 burials (a), &c. (sect. 36.) 
 
 Making false entries in copies of registers sent to 
 registrars (sect. 87). 
 
 Forgeries dealt In addition to the above-mentioned instruments, &c., 
 with in other ^j^g forgery of which is dealt with in the Forgery Con- 
 statutes. T n ■ » • n n V. 1 
 
 solidation Act, there are other cases provided for by 
 many statutes too numerous to notice. One or two of 
 the more important are the following : — 
 
 Stock certificates or coupons, &c., issued by the Bank 
 of England for the payment of interest of national 
 debt (33 & 34 Yict. c. 58, s. 3, v. also sect. 6). 
 
 Inland Eevenue stamps (33 & 34 Yict. c. 98, s. 18). 
 
 Election documents (35 & 36 Vict. c. 38, s. 3). 
 
 (z) Now Paymaster-General, 35 & 36 Vict. c. 42, s. 12. 
 (a) Destroying, injuring the above, and other offences connected with 
 the same subject are also dealt with in this section. 
 
FOEGERX. 
 
 253 
 
 Trade-marks (25 & 26 Vict. c. 88 ; 38 & 39 Vict. 
 c. 91) (b). 
 
 Falsification of accounts by clerks, officers, servants, 
 and other employees (38 & 39 Vict. c. 24) (e). 
 
 Under Land Transfer and Declaration of Title Acts 
 (25 & 26 Vict. c. 67 ; 38 & 39 Vict. c. 87) (d). 
 
 So much for forgeries provided against by particular Forgery at 
 statutes. Forgery at common law is a misdemeanor, '=°™™°° '*w. 
 punishable by fine or imprisonment, o'r both. It is only 
 in virtue of the particular statute that any forgery is 
 made a felony; the facility with which certain forgeries 
 can be perpetrated, and the dangerousness of their 
 tendency, necessitating this course. Cases of forgery 
 which have not been specially dealt with by statute 
 are nevertheless crimes, and left to their punishment 
 at common law ; for example, forging a testimonial to 
 character in order to obtain an appointment (e). 
 
 In viewing the crime generally, we shall have to 
 treat of two classes of acts, each entailing the same 
 consequences, and both usually appearing in different 
 counts of the same indictment. 
 
 i. The actual forgery. 
 
 ii. The knowingly uttering the forged instrument. 
 
 i. The Forgery. — As to the instrument itself. It The iastru- 
 must have some apparent validity, that is, it must ™™'" 
 purport on the face of it to be good and valid for the 
 purpose for which it is created. So that a bill of ex- 
 change which, for want of signature, is incomplete, 
 cannot be the subject of forgery, because the defect is 
 
 (6) V. p. 118. 
 (o) V. p. 225. 
 
 (d) V. p. 259. 
 
 (e) S. V. Sharman, 23 L. J. (M.C.) 51. 
 
254 
 
 FOBGERY. 
 
 on the face of the instrument (/). But there need not 
 be an exact resemblance; it will be sufficient if it 
 is capable of deceiying persons of ordinary observa- 
 tion {g). The forgery must be of some document or 
 writing ; therefore the painting an artist's name in the 
 corner of a picture, in order topass it off as an original 
 picture by that artist, is not forgery Qi). 
 
 Nature of the 
 fabrication. 
 
 As to -whsA, fabrication will constitute a forgery. — It 
 need not be of the whole instrument. Very frequently 
 the only false statement is the use of a name to which 
 the defendant is not entitled. It does not matter 
 whether the name wrongly applied be a real or a 
 fictitious one (i). And a person may be guilty of 
 forgery by making a false deed in his own name, as 
 when a person has made a conveyance in fee of land to 
 A., and afterwards makes a lease for 999 years of the 
 same land to B. of a date prior to that of the convey- 
 ance to A., for the purpose of defrauding A., the latter 
 deed is a forgery (Ic). Even to make a mark in the 
 name of another person, with intent to defraud that 
 person, is forgery (J). Of course, the forgery need 
 not be in the name ; it may equally be in some other 
 part of the instrument. For example, it is forgery 
 to fill in without authority a form of cheque already 
 signed, with blanks left for the insertion of the 
 sum (m). 
 
 An alteration 
 will suffice. 
 
 Not only a fabrication, but even an alteration, how- 
 ever slight, if material, will constitute a forgery ; for 
 -example, making a lease oi the manor of Dale appear to 
 be a lease of the manor of Sale by changing the D to 
 
 (/) B. V. Pateman, E. & R. 455. 
 
 ig) S. V. CoUicott, R. & R. 212. 
 
 (A) B. V. Class, 27 L. J. (M.C.) 54. 
 
 (0 B. V. Lockett, 1 Leach, 94. 
 
 (k) B. V. Bilton, L. R. 1 C. C. R. 200 ; 39 L. J. (M.C.) 10. 
 
 (l) B. V. Dunn, 1 Leach, 57. 
 
 (m) Flower v. Shaw, 2 C. & K. 703. 
 
FOEGERY. 255 
 
 S (n) ; mating a bill of exchange for £8 appear to be 
 for £80 by adding a cipher (o). 
 
 It must be proved that the alleged forgery was in- Evidence as to 
 tended to represent the handwriting of the person "'^ w''''">g- 
 whose handwriting it appears to be and is proved not 
 to be, or that of a person who never existed. How is 
 it to be proved that it is not the handwriting of the 
 person of whom it purports to be ? The most natural 
 evidence is the denial of such person on his being pro- 
 duced as a witness. Even before the change in the 
 law, which made interested parties competent witnesses, 
 it was allowable to call as a witness the party whose 
 writing had been forged (p). Whether he be or be not 
 called as a witness, the handwriting may be proved not 
 to be his by any person acquainted with his hand- 
 writing, either from having seen him write, or from 
 being in the habit of corresponding with him (q). It 
 is also provided by statute that comparison of a dis- 
 puted writing with any writing proved to the satisfac- 
 tion of the judge to be genuine, may be made by 
 witnesses ; and that such writings and the evidence of 
 witnesses concerning the same may be submitted to the 
 court and jury as evidence of the genuineness, or other- 
 wise, of the writing in dispute (r). It appears not to 
 be settled whether an expert may give evidence as to 
 whether the writing is in a feigned hand from its 
 appearance (s). It is sufficient to disprove the .hand- 
 writing of the person, and he need not be called to 
 disprove an authority to others to use his name ; cir- 
 cumstances shewing guilty knowledge are enough (t). 
 
 As to the intent to defraud. — It is not necessary to 
 
 (ri) 1 Hawk. c. 70, s. 2. 
 
 (o) B. V. Elsworth, 2 East, P. C. 986. 
 
 Ip) 9 Geo. 4, c. 32. 
 
 (}) V. p. 422. 
 
 (r) 28 Vict. c. 18, s. 8. 
 
 (s) See cases in Arch. 593 ; Rose. 175. 
 
 (0 E. T. Hurley, 2 M. & RoB. 473. 
 
256 
 
 FOEGEKY. 
 
 The intent to prove an intent to defraud any particular person ; it 
 will suffice to prove generally an intent to defraud (u). 
 So it need not appear that the prisoner had any inten- 
 tion ultimately to defraud the person whose signature 
 he had forged, he having defrauded the. person to vyhom 
 he uttered the instrument (x). But it is not necessary 
 that any person should be actually defrauded, or that 
 any person should be in a situation to be defrauded by 
 the Act (y). 
 
 The uttering. ii. The TJttermg. — In an indictment for forgery it is 
 usual to add a second count, charging the, prisoner with 
 knowingly uttering the forged instrument. So that if 
 the prosecution fail to prove the actual forgery, the 
 prisoner may be convicted of the uttering. 
 
 Under the The words of the Consolidation Act, which deals 
 
 tender will '^Hl^ all instruments in ordinary use, are, "offer, utter, 
 suffice. dispose of, and put off." Therefore, in cases falling 
 
 within that statute, it will suffice if there be a tender, 
 or attempt to pass off the instrument ; there need not 
 be an acceptance by the other. Where such accept- 
 ance is requisite in order to constitute the crime, there 
 must be other words describing the offence, such as 
 "'pay, and put off" (a). 
 
 Object of the It is an uttering if the forged instrument is used in 
 ''^"'^' any way so as to get money or credit by it, or by 
 means of it, though it is produced to the other party, 
 not for his acceptance, but for some other purpose ; for 
 example, for inspection, as where the prisoner placed ^ 
 forged receipt for poor-rates in the hands of the prose- 
 cution, for the purpose of inspection only, in order, by 
 representing himself as a person who had paid his poor- 
 
 (m) s. 44. 
 
 (a;) R. V. Trenfleld, 1 F. & F. 43. 
 ly) E. V. Nash, 21 L. J. (M.C.) 147. 
 («) V. Arch. 598. 
 
FOEGEEY. 257 
 
 rates, fraudulently to induce the other to advance 
 money to a third person (a). It is immaterial that the 
 uttering was only conditional. 
 
 Of course the forged character of the instrument, Guilty know- 
 ledge of ■" 
 utterer. 
 
 and the intent to defraud, must be proved, as on the J***"^ °^ ^^^ 
 first count for the forgery. It will be also necessary 
 to prove that the defendant knew the instrument to be 
 forged. This point is not capable of direct proof, but 
 will be presumed from the facts of the case; for 
 example, on its appearing that the prisoner had in his 
 possession other forged notes of the same kind. To 
 prove the scienter or guilty knowledge, evidence may 
 be given that the defendant has passed other forged 
 notes, &c. ; and it has been decided that evidence may 
 be given of a subsequent uttering, even though that 
 subsequent uttering be made the subject of a distinct 
 indictment (h). 
 
 As we have already observed, the Forgery Consolida- 
 tion Act deals with other offences of a kindred nature. 
 Of these the following are the chief: — 
 
 Belating to Exchequer Bills, Bonds, Debentures, &e. — Exchequer 
 Making, or knowingly having, without lawful authority ?j|'jf; ^'^'lates 
 or excuse, plates, or other implements in imitation of &c. 
 those peculiarly used for manufacturing such bills, &c., 
 is a felony, punishable by penal servitude to the extent 
 of seven years (e). 
 
 Making or having paper in imitation of that used for Making paper, 
 such bills, &c., or taking any impression from any ^°' 
 plate, &c., mentioned in the last section, is a felony, 
 punishable in the same way {d). 
 
 Purchasing, receiving, or having in possession, paper Purchasing, 
 
 &c., paper or 
 — — — ■ plates. 
 
 (a) B: Y. Ion, 21 L. J. (M.C.) 166. 
 (6) R. V. Aston, 1 Russ. 407. 
 (o) s. 9. 
 (d) s. 10. 
 
258 
 
 FOEGEEY. 
 
 or plates made by authority for the purpose of such 
 bills, &c., is a misdemeanor, punishable by imprisonment 
 not exceeding three years (e). 
 
 Bank notes. Belatmg to Bank Notes. — The following acts done 
 without lawful authority or excuse, relating to bank 
 notes, are felonies, punishable by penal servitude to the 
 extent of fourteen years : — 
 
 Purchasing, Purchasing, receiving, or having in possession, forged 
 
 ban'/nXs. ^^^^ ^^^^^ 0^ ^^"^^ ^i^^^' knowing the same to be 
 forged (/). 
 
 Making paper. Making or having moulds for making paper with 
 the words " Bank of England " or " Bank of Ireland " 
 visible on the substance, or with curved or waving bar 
 lines, &c., or making, selling, &c., such paper {g). 
 
 Engraving. 
 
 Making 
 moulds. 
 
 Foreign notes, 
 &c. 
 
 Engraving on a plate, &c., any bank iTote, &c. ; or 
 using or having in possession any such plate ; or utter- 
 ing^ or having paper upon which a blank bank note, 
 &c., is printed Qi). 
 
 Engraving on a plate, &c., any word or device 
 resembling any part of a bank note, &c. ; or using or 
 having such plate, &c. ; or uttering or having paper 
 on which there is an impression of any such words, 
 &c. {i). 
 
 Making or having moulds for making paper with 
 the name of any bankers appearing on the substance ; 
 making, selling, having, &c., such paper {h). 
 
 Engraving plates, &c., for foreign bills or notes; 
 
 («) 5. 12 ; V. 29 & 30 Vict. c. 25, ss. 20, 21. What is criminal posses- 
 sion for the purposes of the Consolidation Act is defined in s. 45. 
 (J) =,. 13. 
 (?) s. 14. 
 (A) s. 16. 
 {%) s. 17. 
 (k) s. 18. 
 
FORGERY. 259 
 
 using or haTing such plates; or uttering paper on 
 which any part of such bill, &c., may be printed (l). 
 
 There is another offence dealt with by the Forgery obtaining 
 Act. With intent to defraud, to demand, obtain, or P™P"''y ''y 
 
 1 ^ means of 
 
 hare deliyered to any person, or to endeavour so to do, forged instru- 
 any property by virtue of a forged instrument, know- "^°*" 
 ing the same to be forged, is a felony, punishable by 
 penal servitude to the extent of fourteen years (ot). 
 
 False personation, the other main topic of the 
 Forgery and False Personation Act, has already been 
 treated of (w). 
 
 FRAUDS AGAINST LAND TRANSFER, ETC., ACTS. 
 
 Certain frauds against the Land Transfer Act, Frauds against 
 1875 (o), are punishable, as misdemeanors, by imprison- j^^. ^*°^ ^^ 
 ment not exceeding two years, or fine not exceeding 
 £500 :— 
 
 Suppressing or attempting to suppress, or being 
 privy thereto, any document or fact, with intent to 
 conceal the title or claim of any person, or to substan- 
 tiate a false claim, in proceedings under the Act (ji). 
 
 Procuring, attempting, or being privy to the procure- 
 ment of any entry on the register, or any alteration or 
 erasure therein (q). 
 
 False declarations under the Act (r). 
 
 Offences against the Declaration of Title Act, 1862 (s), against Decia- 
 are the following :— ^^*[°° "^ ™^ 
 
 Making, &c., material false statements, or representa- 
 
 (0 s. 19. As to instruments for forging inland revenue stamps, v. 33 & 
 34- Vict. 0. 98, s. 18 ; local stamps, 32 & 33 Vict. c. 49, ». 8. 
 (m) s. 38. 
 In) T. p. 234. 
 (o) 38 & 39 Vict. c. 87. 
 Ip) Ibid. s. 99. 
 (?) Ibid. s. 100. 
 (r) Ibid. s. 101. 
 (s) 25 & 26 Vict. c. 67. 
 
 S 2 
 
260 FOEGBRT. 
 
 tions, or suppressing, &c., material documents, facts, or 
 matters of information, is a misdemeanor, punishable by 
 penal servitude not exceeding three years, or such fine 
 as may be thought fit (t). 
 
 Forging or altering certificates or other documents 
 relating to land or title under this Act, or uttering 
 such forged matter, knowing the same to be forged, is 
 a felony, punishable by penal servitude to the extent of 
 life (w). 
 
 A person may not refuse in a civil proceeding under 
 this Act to give evidence on the ground that the 
 answer will tend to criminate him ; but such evidence 
 may not be used against him in a criminal proceed- 
 ing (»). 
 
 (0 25 & 26 Vict. u. 67, s. 44. 
 (m) Ibid. s. 45. 
 (») Ibid. s. 47. 
 
( 261 ) 
 
 CHAPTEE VI. 
 
 INJUEIES TO PEOPEKTY. 
 
 One of the Criminal Consolidation Acts, 1861 {y), deals ' 
 with Arson and Malicious Injuries to Property (2). Of 
 these offences the present chapter will treat. 
 
 AESON. 
 
 Arson is the malicious and wilful setting fire to any Arson. 
 building. The term does not strictly comprise cases of 
 setting fire to other things, such as corn, ships, &c. ; 
 but it will be conyenient to treat here of them also. 
 
 The statute in different sections deals with setting Buildings 
 
 fire to * ^ enumerated. 
 
 Churches, chapels, and other places of diyine wor- 
 ship (s. 1). 
 
 Dwelling-house, any person being therein (s. 2). 
 
 House, stable, coach-house, out-house, warehouse, 
 office, shop, mill, malt-house, hop-oast, barn, store- 
 house, granary, hovel, shed, or farm, or any farm build- 
 ing, or any building or erection used in farming land, 
 or in carrying on any trade or manufacture, with intent 
 thereby to injure or defraud any person (s. 3). 
 
 Station, warehouse, or other building belonging to 
 any railway, port, dock, or harbour, or any canal or 
 other navigation (s. 4). 
 
 (t/) 24 & 25 Vict. c. 97. 
 
 (z) When merely a section is quoted in this chapter it must be under- 
 stood to refer to that statute. 
 
262 INJURIES TO PROPEKTY. 
 
 Public building, as described in the Act (s. 5). 
 
 All these cases of arson are felonies, punishable by 
 penal servitude to the extent of life. Arson in the 
 case of any other building is punishable by penal ser- 
 vitude to the extent of fourteen years (a). 
 
 Besides these enactments with regard to setting fire 
 to buildings, there are others dealing with the burning 
 of other kinds of property. 
 
 Setting fire to Setting fire to any matter or thing, being in, against, 
 anything in, under any building, under such circumstances that, 
 
 &c., a building. •' ? ■, n i «< n 
 
 if the building were thereby set fire to, the offence would 
 amount to felony, is a felony, punishable by penal ser- 
 vitude to the extent of fourteen years (fo). So, also, is 
 attempting by any overt act to set fire to a building, or 
 to any matter or thing mentioned in the last section, 
 under such circumstances that, if the same were set fire 
 to, the offender would be guilty of felony (c). 
 
 Crops. Corn, &c. — Setting fire to any cro^ of hay, grass, 
 
 corn, grain, or pulse, or of any cultivated vegetable 
 produce, whether standing or cut down, or to any part 
 of any wood, -coppice, or plantation of trees, or to any 
 heath, gorse, furze, or fern, wheresover the same may 
 be growing, is a felony, punishable by penal servitude 
 to the extent of fourteen years (d), 
 
 stacks. Setting fire to any stadi of corn, grain, pulse, tar«s, 
 
 hay, straw, haulm, stubble, or of any cultivated vegetable 
 produce, or of furze, gorse, heath, fern, turf, peat, coals, 
 charcoal, wood, or bark, or to any steer of wood or bark, 
 is a felony, punishable by penal servitude to the extent 
 of life (e). 
 
 (a) s. 6. 
 (6) 5. 7. 
 (c) s. 8. 
 \d) s. 16. 
 (e) 5. 17. 
 
INJURIES TO PEOPEETT. 263 
 
 Attempting, by any overt act, to set fire to anything Attempt to set 
 mentioned in the last two sections under such circum- ^^^2° ^^°^^ "'' 
 stances that, if the same were set fire to, the ofi'ender 
 would be guilty of felony under either of those sections, 
 is a felony, punishable by penal servitude to the extent 
 of seven years (/). ■' 
 
 Mines. — Setting fire to any mine of cannel coal. Mines. 
 anthracite, or other mineral fuel, is a felony, punishable 
 by penal servitude to the extent of life (ff). Attempt- 
 ing to do the same under such circumstances, &c. (v. 
 above) is a felony, punishable by penal servitude to the 
 extent of fourteen years Qi). 
 
 It would be advantageous to have a definition of 
 arson which would comprise all the afore-mentioned 
 cases of setting fire to property (i). 
 
 We may notice here certain provisions as to destroy- ships, setting 
 ing ships, seeing that the most usual mode is by burn- ^'^'^ '"> ^°- 
 ing them : — 
 
 Setting fire to, casting away, or in anywise destroy- 
 ing, any ship or vessel, whether the same be complete 
 or in an unfinished state, is a felony, punishable by 
 penal servitude to the extent of life (A;). 
 
 The next section proceeds to subject to the same 
 punishment the commission of any of the acts men- 
 tioned in sect. 42, specifying certain intents : " with 
 intent thereby to prejudice any owner or part owner of 
 
 (/) ■s. 18. 
 
 (3) s. 26. 
 
 (A) s. 27. 
 
 (i) Sir James Stephen proposes the following: — "Arson is the ma- 
 licious and unlawful setting fire to any real property (this would include 
 all buildings, mines, and growing crops), or to any vegetable produce, 
 stacked, or otherwise stored for use ; or to any personal property so con- 
 nected with, or adjacent to, any real property, that, by setting fire thereto, 
 such real property would be endangered." — Crim. Law, 144. 
 
 {k) s. 42. 
 
264 mjUKiES TO pkopekty. 
 
 such ship or vessel, or of any goods on hoard the same, 
 or any person that has underwritten, or shall under- 
 write any policy of insurance upon such ship or vessel, 
 or on the freight thereof, or upon any goods on hoard 
 the same." It is difl&cult to see the ohject of this 
 section. The general provision of the preceding sec- 
 tion renders it unnecessary in any case to allege or 
 prove the particular intent, seeing that no additional 
 punishment is awarded if the particular intent is 
 charged. This does not seem unlike first forhidding 
 the stealing of a horse, and then of a brown horse. 
 
 Attempt to set An attempt hy any overt act to commit any deed 
 ships."' "' mentioned in these two sections, under such circum- 
 stances that it would be a felony if actually committed, 
 is a felony, punishable by penal servitude to the extent . 
 of fourteen years (T). 
 
 Cases of setting It appears to stiU remain a felony, punishable with 
 ^uDishibie death, to set fire to any of Her Majesty's ships of 
 with death. wttT (m) ; or works, or vessels in the docks of the Port 
 
 of London (n) ; hut sentence may be recorded instead 
 
 of being given openly. 
 
 In viewing the crime generally we may notice 
 
 i. The character, moral and physical, of the setting 
 fire ;1 
 
 ii. The intent to defraud or injure (when that is 
 an essential of the crime). 
 
 The setting i. The act must be done wnlawfuUy and malieiously, 
 
 fire, the inten- — Therefore no mere negligence or mischance will 
 
 amount thereto. But it is not necessary that the 
 
 off'ence should be committed from malice (o) conceived 
 
 (0 s. 44. 
 
 (m) 12 Geo. 3, c. 24, s. 1. 
 
 (») 39 Geo. 3, c. 69, s. 1. See also Naval Discipline Act, 29 & 30 Vict. 
 c. 109, s. 34. 
 
 (o) Here again the signification of malice as a motive, equivalent to ill- 
 
INJURIES TO PROPERTY. 265 
 
 against tlie owner of the property (p). For example, 
 if the accused, intending to set fire to the house of A., 
 accidentally sets fire to the house of B., it is equally 
 arson. Nor is it necessary that he should have had any 
 intention of setting fire to anyone's house ; he will be 
 guilty of arson, if, intending to commit some felony of 
 an entirely dififerent nature, he accidentally sets fire to 
 another's house (q). So, also, will he be guilty, if, by 
 wilfully setting fire to his own house, he burns that of 
 his neighbour. If the act is proved to have been done 
 wilfully, it may be inferred to have been done mali- 
 ciously, unless the contrary be proved (r). 
 
 As to the " setting fire " from a physical point of The physical 
 view, there must be an actual burning of some part, ^^^"'^• 
 however trifling, of the house, &c. To support an 
 indictment for setting fire to a house, it will not 
 suffice merely to prove that something in the house 
 was burnt (s). 
 
 ii. The intent to injure or defraud. — When it is The intent to 
 necessary to allege this, there is no need to allege an ^"•'f"^^'' 
 intent to injure or defraud any particular person (i). 
 
 When a person wilfully sets fire to the house of 
 another, the intent to injure that person is inferred 
 from the act. But if the setting fire is the result of 
 accident, though the accused be engaged in the com- 
 mission of some other felony, there can be no intent to 
 defraud. 
 
 It is specially declared in the Arson and Malicious 
 
 will, seems to have been present to the minds of the legislators. On the 
 other hand, " maliciously " is to be taken in the technical sense of " with 
 criminal intention." 
 
 (j3) s. 68. This section applies to all offences coming within the Arson 
 and Malicious Injuries Act. 
 
 (9) r. p. 16. 
 
 (r) Bromage v.. Prosser, 4 B. & C. 247. 
 
 (s) B. T. Bussett, C. & Mar. 541. 
 
 (<) s. 60. This section also applies to the Act generally. 
 
266 
 
 INJUKIBS TO PEOPEKTT. 
 
 Injuries Act that its prorisions apply to every person 
 who, with intent to injure or defraud any other per- 
 son, does any of the acts made penal, although the 
 offender be in possession of the property in respect of 
 which such act is done (m). 
 
 Malicious 
 injury 
 
 MALICIOUS rNJTTRY. 
 
 Haying noticed one of the most dangerous forms of 
 malicious injury — arson — it remains to consider others, 
 which are dealt with in the same Act (as). It will be 
 remembered that here " malicious " is to be taken in 
 its technical signification. To bring them within the 
 pale of the criminal law, all the acts which we shall 
 notice must be done maliciously and wilfully. 
 
 It will be well to classify the different kinds of 
 malicious injury, and then to consider certain points 
 which are common to them all. 
 
 to houses, by 
 explosive 
 substance ; 
 
 Houses, &e. — To destroy or damage a dwelling-house 
 by the explosion of gunpowder or other explosive sub- 
 stance, whereby the life of some person is endangered, 
 is a felony, punishable by penal servitude to the extent 
 of life {y). To place or throw gunpowder, &c., in, 
 into, upon, under, against, or near any building, with 
 intent to destroy the same, any machinery or goods, is 
 a felony, punishable by penal servitude to the extent of 
 fourteen years (z). 
 
 to buildings, To riotously and with force demolish, or begin to 
 
 m '^^°!'^'^' demolish, buildings, machinery, mine bridges, ways, 
 
 &c., is a felony, punishable by penal servitude to the 
 
 extent of life (a). If the offender does not proceed 
 
 (m) s. 59. 
 
 {x) 24 & 25 Vict. 
 
 (y) s. 9. 
 
 (x) s. 10. 
 (a) s. 11. 
 
 97. 
 
mJUEIES TO PEOPEBTT. 267 
 
 further than to injure or damage the above, he is 
 guilty of a misdemeanor, punishable by penal servitude 
 to the extent of seven years (6). If indicted under the 
 former section, the defendant may be found guilty of 
 the offence set out in the latter. 
 
 For a tenant holding a dwelling-house or other to buildings, 
 building for any term of years or other less term, or at ^^ t™*its ; 
 will, or after the termination of any tenancy, to de- 
 molish or begin to demolish the building of which he 
 is tenant, or to sever any fixture, is a misdemeanor, 
 punishable by fine or imprisonment, or both (c). 
 
 Manufactiires and Machinery (d). — To break, destroy, to manufac- 
 or damage with intent to destroy, certain goods, viz., ^^chirier 
 silk, woollen, linen, cotton, hair, mohair, or alpaca, in 
 process of manufacture, or the machinery employed in 
 the manufacture ; or (b) by force to enter any place in 
 order to commit such offence, is felony, punishable by 
 penal servitude to the extent of life (e). In the case 
 of machines used in agricultural operations, or in any 
 manufacture other than those mentioned above, the 
 extent of the penal servitude is seven years (/). 
 
 Mines (ff). — To cause water to be conveyed into a to mines ; 
 mine with intent to destroy or damage the mine, or 
 hinder the working; or (b) with like intent to ob- 
 struct an air-way, water-way, shafts, &c., is a felony, 
 punishable by penal servitude to the extent of seven 
 years (A). 
 
 Subject to the same punishment is the offence of 
 destroying, damaging with intent to destroy, or ob- 
 
 (6) s. 12. 
 
 (c) s. 13. 
 
 (d) See also ss. 11 & 12, p. 266. 
 
 (e) s. 14. 
 (/) s. 15. 
 
 (g) See also ss. 11 & 12, p. 266. 
 (A) s. 28. 
 
268 mjuKiES TO peopebty. 
 
 struct the engines, erections, ways, ropes, &c., used in 
 mines (*). 
 
 to vessels ; Vessels (k). — To throw in, against, or near a ship or 
 
 vessel, any gunpowder or other explosive substance, 
 with intent to destroy the vegsel, machinery, working 
 tools, goods, or chattels, although the explosion does 
 not take place and no injury is effected, is a felony, 
 punishable by penal servitude to the extent of fourteen 
 years (I). To damage, otherwise than by fire, gun- 
 powder, or other explosive substance, any vessel, com- 
 plete or unfinished, with intent to destroy the same, or 
 render it useless, is a felony, punishable by penal 
 servitude to the extent of seven years (m). 
 
 endangering To make, alter, or remove any light or signal, or to 
 vessels ; exhibit any false light or signal, with intent to bring a 
 
 vessel into danger ; or (b) to do anything tending to 
 its immediate loss or destruction, is a felony, punish- 
 able by penal servitude to the extent of life (w). In 
 case of cutting away or otherwise interfering with any 
 buoy, &c., used or intended for the guidance of seamen 
 or the purpose of navigation, the extent of the penal 
 servitude is seven years (o). 
 
 to wrecks ; To destroy any part of a vessel in distress, wrecked, 
 
 stranded, or cast on shore, or any article belonging to 
 such ship, is a felony, punishable by penal servitude to 
 the extent of fourteen years (p). 
 
 to banks, &c. ; Sea and Biver Banhs, &c. — To break down, or other- 
 wise damage, banks, dams, walls, &c., so that land or 
 buildings are, or are in danger of being, overflowed ; or 
 
 (i) s. 29. 
 
 (A) See also ss. 42-44, p. 263. 
 
 (0 ». 45. 
 
 (m) s. 46. 
 
 (ra) s. 47. 
 
 (o) ». 48. 
 
 (J) s. 49. 
 
mJUEIES TO PKOPEBTY. 269 
 
 (b) to destroy any quay, wharf, jetty, look, sluice, tow- 
 ing path, drain, or other work belonging to any port, 
 harbour, dock, reserToir, navigable river, or canal, is a 
 felony, punishable by penal servitude to the extent of 
 life (q). To remove, &c., piles, &c., used for securing 
 such banks, &o. ; or (b) to open floodgates or sluices, or 
 do any other injury to a navigable river or canal, with 
 intent and effect to interfere with the navigation, is 
 a felony, the extent of the penal servitude for which is 
 seven years (r). 
 
 Bridges, Viaducts, and Aqueducts. — To destroy any to bridges, 
 bridge, viaduct, or aqueduct, over or under which any ™ educts*" 
 highway, railway, or canal passes ; or (b) .to do anything 
 so as to render either the bridge, &c., or the railway, 
 &c., dangerous or impassable, is a felony, punishable by 
 penal servitude to the extent of life (s). 
 
 Turnpikes. — To destroy the gates, toll-bars, chains, to turnpikes; 
 or houses thereof, is a misdemeanor, punishable by fine 
 or imprisonment, or both {t). 
 
 It may be noticed here, that to destroy any fences, to walls, gates, 
 walls, stiles, or gates, is punishable on summary con- °' ' 
 viction (u). 
 
 Railway Trains and Telegraphs. — To put anything to railway 
 upon or across any railway, or to displace any rail, *"'*"'* ' 
 sleeper, &c. ; or (b) to interfere with the points or 
 signals ; or (c) to do anything with intent to obstruct, 
 upset, or injure any engine, tender, carriage, or truck 
 using the railway, is a felony, punishable by penal ser- 
 vitude to the extent of life (x). 
 
 (?) s. 30. 
 (r) s. 31. 
 (s) s. 38. 
 (i) s. 34. 
 (m) s. 25. 
 («) s. 35. 
 
270 
 
 ■INJURIES TO PBOPEKTY. 
 
 to telegraphs ; 
 
 to ponds and 
 fish; 
 
 to cattle ; 
 
 to other 
 animals ; 
 
 By any unlawful act, or wilful omission or neglect, 
 to obstruct any engine or carriage using the railway, 
 is a misdemeanor, punishable by imprisonment not ex- 
 ceeding two years («/). 
 
 To injure anything used m or about the telegraph, 
 or in the working thereof; or (b) to obstruct the send- 
 ing of any message by such telegraph, is a misdemeanor, 
 punishable by, imprisonment not exceeding two years. 
 But the magistrates, instead of sending the case for 
 trial, may summarily dispose of it, awarding imprison- 
 ment not exceeding three months, or fine (z). To 
 attempt by an overt act any of the offences included in 
 the last section, is also visited with the same punish- 
 ment on summary conviction (a). 
 
 Ponds and Fish. — To destroy the dam, flood-gate, or 
 sluice of a fish-pond, or private water, with intent to 
 take or destroy, or with result to cause loss or destruc- 
 tion of any of the fish ; or (b) to put in lime, or other 
 noxious material, with intent to destroy the fish ; or (c) 
 to destroy the dam or flood-gate of any mill-pond, 
 reservoir, or pool, is a misdemeanor, punishable by 
 penal servitude not exceeding seven years (b). 
 
 Animals. — To kill, maim, or wound any cattle, is a 
 felony, punishable by penal servitude not exceeding 
 fourteen years (c). 
 
 To kill, maim, or wound any dog, bird, or beast, or 
 other animal, not being cattle, but being either the 
 subject of larceny at common law, or being ordinarily 
 kept in a state of confinement, or for any domestic 
 purpose, is punishable on summary conviction, for the 
 
 (y) s. 36. For certain grayer offences, v. p. 183. 
 
 (0) s. 37. 
 
 (a) s. 38. 
 
 (6) s. 32. v. 36 & 37 Vict. c. 71, s. 13. 
 
 (c) s. 40. 
 
INJUBIES TO PROPERTY. 271 
 
 first offence, by imprisonment not exceeding six months, 
 or penalty not exceeding £20 above the injury ; for the 
 second offence, imprisonment not exceeding twelve 
 months {d). 
 
 Trees, Plants, &c. — To destroy or damage any tree, to trees, &c. ; 
 sapling, shrub, or underwood, growing in any park, 
 pleasure-ground, garden, orchard, or avenue, or in any 
 ground adjoining, or belonging to, any dwelling-house, 
 provided that the amount of the injury done exceeds 
 the sum of £1, or if the tree, &c., is growing else- 
 where, provided that the amount exceeds £5, is a felony, 
 punishable by penal servitude to the extent of five 
 years (e). If the injury amounts to the value of one 
 shilling at least, wheresoever the tree, &c., is growing, 
 the offence is punishable, on summary conviction, by 
 imprisonment not exceeding three months, or fine not 
 exceeding £5 above the amount of the injury ; for the 
 second offence, imprisonment not exceeding twelve 
 months ; the third offence is a misdemeanor, punishable 
 by imprisonment not exceeding two years (/). 
 
 To destroy, or damage with intent to destroy, any to plants, &c. ; 
 plant, root, fruit, or vegetable production growing in 
 any garden, orchard, nursery-ground, hot-house, green- 
 house, or conservatory, is punishable, on summary con- 
 viction, by imprisonment not exceeding six months, or 
 penalty not exceeding £20 above the amount of the 
 injury ; the second offence is a felony, punishable by 
 penal servitude to the extent of five years {g). If the 
 plant, &c., does not grow in such place, the offence is 
 punishable, on summary conviction, by imprisonment to 
 the extent of a month, or fine of twenty shillings ; for 
 the second offence, imprisonment not exceeding six 
 months (h). 
 
 (d) s. 41. 
 
 (e) ss. 20, 21. 
 (/) s. 22. 
 
 (9) =.. 23. 
 (A) s. 24. 
 
272 INJUEIES TO PEOPEBTT, 
 
 to hopbinds ; To ciit, or otherwise destroy any hopbinds growing on 
 poles in any plantation of hops, is a felony, punishable 
 by penal servitude to the extent of fourteen years (i). 
 
 to works of Works of AH, &c. — To destroy or damage works of art, 
 
 '^^ ' &o., in public museums, &&. j or (b) pictures, statues, 
 
 monuments belonging to places of worship, public 
 bodies, or in public places, is a misdemeanor, punish- 
 able by imprisonment not exceeding six months (k). 
 
 General Such are the particular cases provided for by the 
 
 proTisi . statute ; but in addition to these there are the follow- 
 ing general provisions : — 
 
 Where the Whosoever Unlawfully and maliciously commits any 
 
 iniury exceeds ■■ ■ . ., . i i 
 
 £5_ ' damage, injury, or spoil to or upon any real or personal 
 
 property, either of a public or private nature, for which 
 no punishment has been provided in the Act, the 
 damage, injury, or spoil being to an amount exceeding 
 £5, is guilty of a misdemeanor, punishable by imprison- 
 ment not exceeding two years. If the offence is com- 
 mitted at night {i.e., between the hours of nine in the 
 evening and six in the morning), the offender is liable 
 to penal servitude to the extent of five years (Z). 
 
 Where the And in cases where the damage does not exceed £5, 
 
 iniury does not __ ...• -i , , . 
 
 exceed £5. ^^J persou committing damage to any property may 
 be summarily convicted before a magistrate, and 
 punished by imprisonment not exceeding two months, 
 or fine not exceeding £5, and also a further sum not 
 exceeding £5 as compensation. But this section does 
 not extend to any case where the party acted under a 
 fair and reasonable supposition that he had a right to 
 do the thing complained of, nor to any trespass, not 
 being wilful or malicious, committed in hunting, fish- 
 ing, or in the pursuit of game (m). 
 
 (i) s. 19. 
 
 (A) s. 39. 
 
 (0 s. 51. V. B. V. Pembliton, L. R. 2 C. C. R. 119 ; 43 L. J. (M.C.) 91. 
 
 (m) s. 52. 
 
INJUKIES TO PROPERTY. 273 
 
 Making, or knowingly having in possession, any gun- Making or 
 powder, or any dangerous or noxious thing, or any daIg°TOus or 
 instrument or thing, with intent thereby, or by means noxious thing 
 thereof, to commit any of the felonies mentioned in ^^ '° *" ' 
 the Act, is a misdemeanor, punishable by imprisonment 
 not exceeding two years («). 
 
 Certain general rules are appended to apply gene- 
 rally to all the offences dealt with in the Act : — 
 
 It is not necessary to prove that the defendant was Particular 
 actuated by malice against the owner of the pro- "g^ghew^^*^ ""^ 
 perty (o). 
 
 If a person, with intent to injure or defraud any No defence that 
 other person; does any of the prohibited acts, it is no °8'ender was m 
 
 i ' J -t ^ ' possession of 
 
 defence that he (the offender) was in possession of the the property. 
 property against, or in respect of which such act was 
 done (p) ; as, for example, if a tailor or carrier wilfully 
 and maliciously destroys goods intrusted to him. 
 
 When it is necessary to allege an intent to injure or Proof of 
 defraud, it is not necessary to allege in the indictment, fo arfraud'&c 
 or prove at the trial, an intent to injure or defraud any win suffice. 
 particular person j proof of a general intent to injure 
 or defraud will suffice (q). 
 
 (re) 5. 54. 
 (o) s. 58. 
 (p) s. 59. 
 (7) 5. 60. 
 
( 274 ) 
 
 BOOK III. 
 
 Criminal Hating Considered the essentials of crime in general, 
 
 proce ure. ^^^ examined the character of particular crimes, a 
 second portion of the matter with which the Criminal 
 Law is concerned now presents itself to our notice, 
 namely, the proceedings, which have for their object 
 the conyiction of the guilty and the discharge of the 
 innocent. But before entering upon the subject of 
 Criminal Procedure, it will be well to inquire what 
 measures the law has adopted in order to render those 
 proceedings as far as possible unnecessary; in other 
 words, to treat of the PreTcntion of Offences. 
 
( 275 ) 
 
 CHAPTEE I. 
 
 PEEVENTION OF OFFENCES. 
 
 Undek this head fall two classes of measures, differing Two classes of 
 considerably in their nature. The first is applicable ^e^preVention 
 chiefly in the case of those who have to some extent of ofTences. 
 erred, but whom it is not deemed advisable to visit 
 with punishment in the strict sense of the term. The 
 second consists of general measures and provisions for 
 the prevention of the commission or repetition of 
 offences. 
 
 A. The first mode of preventing offences may be Finding 
 generally said to consist in obliging those persons, ^«<='""'"^'- 
 whom there is probable ground to suspect of future 
 misbehaviour, to stipulate with and give full assurance 
 to the public that the offences which are apprehended 
 shall not happen. This is effected by their finding 
 pledges or securities, which are of two kinds : — 
 
 i. For Keeping the Peace, ii. For Good Behaviour. 
 But in the first place we shall go over the ground 
 which is common to both. 
 
 , zance. 
 
 Of what does this "giving security" consist? The The recogni- 
 person of whose conduct the law is apprehensive is ' 
 bound, with or without one or more securities, in a 
 recognizance or obligation to the Crown. This is taken 
 by some court or by some judicial officer. The recog- 
 nizance is of the nature following : — The person bound 
 acknowledges himself to be indebted to the Crown in 
 the sum specially ordered, with a condition that it 
 
 T 2 
 
276 
 
 PBEVENTION OP OFFENCES. 
 
 Forfeiture. 
 
 shall be void if lie appear in court (a) on such a day, 
 and in the meantime keep the peace either generally 
 towards the sovereign and his people, or particularly 
 also with regard to the person who seeks the security. 
 Or, as is more usual, the recognizance may he to keep 
 the peace for a certain period, an appearance in court 
 not being required. If it be for good behaviour — then 
 on condition that he demean and behave himself well, 
 either generally or specially, for the time therein 
 limited, as for one or more years, or for life. If the 
 condition of the recognizance is broken, in "the one case 
 by any breach of the peace, in the other by any 
 misbehaviour, the recognizance becomes forfeited or 
 absolute. It is estreated, or extracted from the other 
 records, and sent up to the Exchequer; the party and 
 his sureties becoming the Crown's absolute debtors for 
 the sums in which they are respectively bound (6). 
 
 Who may 
 
 demand 
 
 securities. 
 
 Who may be 
 bound. 
 
 By whom may these securities be demanded? By 
 any justice of the peace, and also by certain others 
 who are regarded as conservators of the peace; for 
 example, the judges of the Queen's Bench Division, the 
 coroner, sheriff, &c. They may demand the security 
 at their own discretion, or at the request of a subject, 
 upon his shewing due cause. If the magistrate is un- 
 willing to grant it, it may be obtained by a mandatory 
 writ, called a swpplicavit, which will compel him to act 
 as a ministerial and not as a judicial officer. But this 
 writ is seldom used ; for when application is made to 
 the superior courts, they usually take the recognizance 
 there, as they are empowered to do by statute (c). 
 
 Any person under the degree of nobility may be 
 bound over either by a justice or at the quarter ses- 
 sions. Wives may demand security against their hus- 
 
 (o) V. Arch. Q. S. 269. 
 
 (6) 4 Bl. 252. 
 
 (c) V. 21 Jac. 1, c. 8. 
 
PREVENTION OF OFFENCES. 277 
 
 bands, and vice versa. Infants may demand security, 
 and may be compelled to find security by their next 
 friend. 
 
 The proceedings are the following in case of secu- 
 rities granted (a) by a justice out of sessions ; (b) at 
 the sessions. 
 
 (a.) If no sessions are sitting, the person requiring Proceedings 
 immediate security goes before a justice, and on oath j^^"". * "^S's- 
 makes his complaint, which is usually, though not 
 necessarily, in writing. If the person complained of 
 is present, he may be required at once to enter into 
 the required recognizance ; but if not present, the 
 magistrate issues a warrant to bring him before him- 
 self or some other magistrate. The warrant is exe- 
 cuted by -the person to whom it is directed. If the 
 delinquent refuses to go before the magistrate, he may 
 be put into prison without any further warrant. "When 
 he comes before the magistrate, he must offer sureties, or 
 else he may be committed to prison for a term not 
 exceeding twelve months (d). The form of the recog- 
 nizance is chiefly in the discretion of the magistrate, 
 both as to the number and the sufficiency of the sure- 
 ties, the largeness of the sum, and the time for which 
 the party shall be bound. 
 
 (b.) By the sessions. Application may be made by at sessions. 
 the party requiring security at once to the sessions. 
 And this is the more usual course. It should be made 
 upon articles verified on oath, shewing the facts to 
 warrant it. If the person refuses, or is not prepared 
 to enter into the recognizance, he may be committed. 
 
 So far the two kinds of security are on the same 
 footing. They must now be considered separately. 
 
 (rf) 16 & 17 Vict. u. 30, ». 3. 
 
278 
 
 PBEYENTION OP OFFENCES. 
 
 Security for 
 keeping the 
 peace — gene- 
 rally ; ■ 
 
 specially. 
 
 i. For the Peace. — This may be granted (a) gene- 
 rally, on public grounds. Any justice may demand secu- 
 rities from the following : those who in his presence 
 make an affray, or threaten to kill or beat one another ; 
 or who contend together with hot and angry words ; 
 or go about with unusual weapons or attendance to the 
 terror of the people ; also common barrators (e) ; and 
 those who, haying been bound to the peace, have 
 forfeited their recognizances by breaking it (/). 
 (b) Specially, by demand of a private person (" swear- 
 ing the peace " against another). This security may be 
 demanded by a person when he fears that another will 
 kill him, his wife or child, or do him other corporal 
 injury ; or will burn his house ; or will procure others 
 so to do. The fear must arise from a threat, though 
 that threat need not be expressed in words. The 
 magistrate is required to grant the security if the 
 applicant swears that he is in fear of death or bodily 
 harm, and shews that there is ground for his fear ; and 
 swears that he is not acting out of malice or for mere 
 vexation {g). 
 
 Forfeiture. The recognizance is forfeited (a) if general, by any 
 
 unlawful action which is or tends to a breach of the 
 peace ; (b) if special, by any actual violence, or even 
 terror or menace, to the person of the complainant, 
 whether it be committed directly or indirectly by the 
 person bound; (c) by default of appearance at the 
 proper time, unless there be a valid excuse (h). A mere 
 civil trespass, or words of anger not amounting to a 
 challenge to fight, will not cause a forfeiture. 
 
 Security for 
 good beha- 
 viour. 
 
 ii. For Good Behaviour or Abearance. — This in- 
 cludes a surety for keeping the peace and something 
 more. A magistrate may bind over to good behaviour 
 
 (c) V. p. 90. 
 
 (/) 4 Bl. 254. 
 
 (g) 4 Bl. 255. 
 
 (A) V. 16 & 17 Vict. 0. 30, s. 2. 
 
PREVENTION OF OFFENCES. 279 
 
 all those that he not of good fame. This general term 
 includes not only those who act contra pacem, but also 
 those who act contra lonos mores. It will comprise the 
 following, among others (i) : — rioters, barrators ; those 
 maintaining or constantly resorting to barrators ; sus- 
 pected persons who cannot give good account of them- 
 selves; those who are likely to commit any crime; 
 drunkards ; cheats ; vagabonds, &c. (k). 
 
 This kind of recognizance may be forfeited for the Forfeiture, 
 same reasons as the former, and for others also, as by 
 committing any of those acts of misbehaviour which 
 the recognizance was intended to prevent, though there 
 be no actual breach of the peace ; but not by barely 
 giving fresh cause of suspicion. 
 
 Security may be required in two classes of cases : Security either 
 (a) where no actual crime has been committed ; (b) where ha''s''or\as™ot 
 the party of whom security is taken has been convicted teen oom- 
 of some crime. In the latter case, if punishment is ™'"° " 
 awarded, the court of summary jurisdiction may order 
 the offender, at the expiration of his term of punish- 
 ment, or if the punishment consists of a fine, at once to 
 •enter into a recognizance to keep the peace, or for good 
 behaviour. Or again, instead of awarding any punish- 
 ment, the court may order the defendant to enter into 
 such recognizance. In certain cases where the defend- Criminal 
 ant has been convicted of an indictable offence, namely, Consolidation' 
 of an indictable offence punishable under one of the 
 Criminal Consolidation Acts, 1861, he may be required 
 to enter into his own recognizances and find sureties. 
 In each of these Acts there is inserted a clause to the 
 following effect : — On conviction of an indictable mis- 
 demeanor punishable under one of those Acts, the court 
 may, if it think fit, in addition to or in lieu of any 
 of the punishments authorized in the Act, fine the 
 
 (i) V. Burn's, 759 
 (A) Dalton, c. 124. 
 
280 
 
 PREVENTION OF OFFENCES. 
 
 General 
 
 measures for 
 prevention of 
 
 offender, and require him to enter into his own recogni- 
 zances and to find sureties, both or either, for keeping 
 the peace and being of good behaviour. And in case 
 of any felony punishable under one of those Acts, the 
 court may require the offender to enter into his own 
 recognizances and to find sureties, both or either, for 
 keeping the peace, in addition to any punishment 
 authorized by the Act. But no person is to be im- 
 prisoned under this clause for not finding sureties for 
 any period exceeding one year {I). 
 
 B. We have now to consider certain general measures 
 for the prevention of the commission of crimes, or their 
 repetition. Provisions having this object in view are 
 contained in an Act for the more effectual Prevention 
 of Crime (m). This statute deals with a variety of 
 matters (the design of which principally is to prevent 
 the repetition of crime), which may be thus classified : — 
 
 i. As to holders of licences under the Penal Servi- 
 tude Acts. — If, on their being brought by a constable 
 before a court of summary jurisdiction, it appears that 
 they are getting their living by dishonest means, their 
 licences are forfeited. They are also punished on the 
 breach of certain conditions. They are required to 
 notify their residence to the police within forty eight 
 hours of their arrival in any place (»). 
 
 Identification ii. Identification of persons who have been convicted.. 
 
 o en ers. — -p^^ provision is made for keeping the register of 
 prisoners and making returns to the Home Secretary 
 in England, the Lord Lieutenant in Ireland. The 
 same authorities may make regulations for photograph- 
 ing prisoners (o). 
 
 Holders of 
 licences. 
 
 (0 24 & 25 Vict. c. 96, s. 117 ; c. 97, s. 73 ; t. 98, s. 51 ; u. 99, s. 38; 
 .;. 100, s. 71. 
 
 (m) 34 & 35 Vict. c. 112. 
 (n) Ibid. ss. 3-5. v. p. 455. 
 (o) Ibid. 5. 6. 
 
PREVENTION OF OFFENCES. 
 
 281 
 
 iii. Persons who have been twice convicted of crime Offences by 
 mav be punished in certain cases, within seven years 'iiose who 
 
 „T, ..,. . T have been 
 
 from the last conviction, by imprisonment not exceeding twice con- 
 one year, e.^., for appearing to obtain their livelihood ^"''^'^■ 
 by dishonest means, refusing to give their names when 
 asked by a court of summary jurisdiction. They may 
 be subjected to police supervision for seven years or 
 less (p). 
 
 iv. Penalties are prescribed for harbouring thieves, Acts conduc- 
 assaulting the police, purchasing less than specified '"^ ''"^''""^' 
 quantities of old metal, &c. (^). 
 
 V. Power is given to constables authorized by a Search for 
 chief of&cer of the police to enter houses, &c., to search *'°'^'' , 
 
 ^ ' ' property. 
 
 for stolen property in premises which, within the last 
 twelve months, have been in the occupation of persons 
 who have been convicted of receiving stolen property, 
 or harbouring thieves ; or are in occupation of persons 
 who have been convicted of offences involving fraud or 
 dishonesty and punishable by penal servitude or im- 
 prisonment (r). 
 
 vi. At a trial for receiving stolen goods certain evi- Evidence in 
 dence, not usually allowed, may be given (s). *"*l *!"^ 
 
 ' ■' ' J o \ / receiving. 
 
 (j>) 34 & 35 Vict. u. 112, ss. 7, 8. 
 
 (if) Ibid. ss. 10-13. 
 
 (r) Ibid. s. 16. 
 
 (s) Ibid. s. 19. V. p. 217. 
 
( 282 ) 
 
 CHAPTEE II. 
 
 COURTS OP A CRIMINAL JURISDICTION. 
 
 Courts dealing In this chapter we shall treat of courts taking cog- 
 with indictable njaance of indictable crimes, reserving for a subse- 
 
 crimes. . , . „ „ 
 
 quent chapter the consideration of courts oi a summary 
 jurisdiction (t). These courts are either of general, or 
 of local and special jurisdiction. We are concerned 
 chiefly with the former, and to them we now turn, and 
 notice the several tribunals as far as possible in the 
 order of their dignity. 
 
 THE HIGH COUKT OF PABLIAMENT. 
 
 Court of This assembly proceeds to the punishment of offenders 
 
 ar lamen . either in a legislative or a, judicial capacity. 
 
 Bills of When acting in the former of these capacities it 
 
 pains°and°'^° caunot strictly be termed a court. It does not then 
 penalties. git to execute existing laws, but to make new ones. 
 The occasions when its legislative functions are exer- 
 cised to punish offenders are when hiUs of attainder or 
 hills of pains and penalties are passed to punish par- 
 ticular persons for treason or felony, beyond and 
 contrary to the common law, to serve a special pur- 
 pose. They pass through the same stages as any 
 other bill, though usually commencing with the Lords. 
 
 When sitting in a Judicial capacity the jurisdiction 
 
 (t) V. p. 458. As to Court of Crown Cases Reserved, v. p. 450. 
 
COUBXS OF A CBIMINAL JURISDICTION. 283 
 
 of this, the highest court of the kingdom, is exercised 
 in one of two modes : — 
 
 i. Impeachment. 
 
 ii. Indictment. 
 
 i. Impeachment before the Lords by the Commons.— impeachment. 
 The Commons act as prosecutors, inasmuch as it is the 
 people, whom they represent, who are injured ; the 
 Lords form the tribunal. In place of an ordinary bill of 
 indictment the charge against the offender is contained 
 in the articles of impeachment. A peer may be im- 
 peached for any crime ; a commoner may be impeached, 
 at any rate for a misdemeanor, and, according to the 
 better authorities, for any crime (w). 
 
 It should be remembered that it was provided by Pardon cannot 
 the Act of Settlement that no pardon under the Great j'^P^achment 
 Seal is pleadable to an impeachment by the Commons 
 in Parliament. That is, the proceedings cannot be 
 suppressed by the Sorereign interfering with a pardon ; 
 though, when the matter has been inquired into, and 
 judgment given, he may then exercise his royal pre- 
 rogatiye of pardon. The proceedings on an impeach- 
 ment are not brought to a termination by the proroga- 
 tion or dissolution of Parliament (x). 
 
 The proceedings are shortly the following (y). A Proceedings on 
 member of the House of Commons charges the accused ™P«achment. 
 with the offence, and moves that he be impeached. On 
 the House agreeing, the member is sent up to the bar 
 of the House of Lords to impeach the accused in the 
 name of the House of Commons and the Commons of 
 the United Kingdom. A committee is appointed to 
 draw up articles, which, on being agreed to, are de- 
 
 (u) May, 658. 
 
 (ic) V. 26 Geo. 3, c. 96; 45 Geo. 3, c. 125, 
 
 (y) May, 660. 
 
284 
 
 COURTS OF A CRIMINAL JURISDICTION. 
 
 liyered to the Lords. The accused makes answer to 
 these articles, and to his answer, which is commnni- 
 cated by the Lords to the -Gommons, replication, if 
 necessary, is returned. The Lords then appoint a day 
 for trial, the accused meanwhile being retained in 
 custody, unless admitted to bail by the House of Lords. 
 The Commons desire the Lords to summon witnesses, 
 and they (the Commons) appoint managers to conduct 
 The trial. the proceedings. The trial usually takes place in 
 Westminster Hall, under the presidency of the Lord 
 High Steward. But in cases other than impeachment 
 of peers for high treason the Lord Chancellor or Lord 
 Speaker presides. The president is not a judge, but 
 only chairman, and has a vote with the rest in right of 
 his peerage. The collective body of peers are the 
 judges both of law and of fact. The Commons attend 
 with the managers as a committee of the whole house. 
 When the managers have made their charge they 
 adduce evidence ; and as to this, though a doubt was 
 raised on the trial of Warren Hastings whether the 
 Lords were bound by the same rules of evidence which 
 prevail in ordinary criminal tribunals, that they are so 
 bound is now established. The accused, who may be 
 defended by counsel, answers the charge, and the 
 managers reply. The president then puts to each 
 peer, beginning with the junior baron, the question 
 upon the first article, whether the accused be guilty of 
 the crime charged therein. The peers in succession 
 rise in their places when the question is put, and 
 standing uncovered, and laying their right hands upon 
 their breast, answer " Gruilty," or " Not guilty, upon 
 my honour." Each article is proceeded with separately ; 
 the president giving his opinion last. The numbers 
 being ascertained, are delivered by the president. The 
 Commons demand judgment, and this is pronounced 
 by the president. 
 
 Indictment. ii. Indictment before the House of Peers. — In this court 
 
 are tried peers and peeresses against whom an indictment 
 
COURTS OF A CRIMINAL JURISDICTION. 285 
 
 for treason or felony, or for misprision of either, is found 
 during a session of Parliament. Tlie indictment, that 
 is, a true bill, is found in the ordinary way by a grand 
 jury in the Queen's Bench Division, or at the assizes ; 
 the indictment being removed to the House of Peers 
 by writ of certiorari (z). The peer may plead a pardon 
 before the Queen's Bench Division, so as to avoid the 
 trouble of appointing a high steward, &c., merely to 
 receive that plea ; but no other plea, as " guilty " or 
 " not guilty," can be pleaded in the inferior court. 
 
 The court is presided over by a Lord High Steward, The trial. 
 appointed by commission under the great seal. He 
 is not a judge, hut chairman, and votes with the other 
 peers. The privilege of being tried by this court 
 depends upon nobility of blood, rather than upon the 
 right to a seat in the House, as will appear from the 
 considerations following. This kind of trial might 
 have been claimed by a popish peer at a time when he 
 was incapable of sitting in the House ; by a peer 
 under age ; by Scotch and Irish peers, though they be 
 no representative ; by females, namely, peeresses by 
 birth, and those by marriage, unless when dowagers 
 they have disparaged themselves by taking a com- 
 moner for a second husband {a). Also the bishops are 
 not tried in this court, but in courts which have juris- 
 diction over commoners. As to the right of bishops to 
 to take part in the trials in the House of Peers, a resolu- 
 tion of the House in Danby's case has ever since been 
 adhered to, " that the lords spiritual have a right to 
 stay and sit in court in capital cases till the court pro- 
 ceeds to the vote of guilty or not guilty " (h). They then 
 retire voluntarily, but not without entering a protest 
 declaring their right to stay. 
 
 («) T. p. 351. 
 (a) 4 Bl. 265. 
 (6) Lords' Journal, May 15th, 1679. 
 
286 COURTS OF A CRIMINAL JURISDICTION. 
 
 COURT OF THE LORD HIGH STEWARD OF GREAT 
 BRITAIN. 
 
 Court of Lord The trial by the House of Peers, as we have seen, 
 
 High Steward. ^^^ ^^jy ^g ^^^A during the sitting of Parliament. 
 
 During a recess this court»takes its place. 
 
 The trial. Here, Unlike the former tribunal, the Lord Steward 
 
 is not merely chairman of the court, giving his vote 
 with the rest. He is judge of matters of law, as the 
 Lords triors are of matters of fact. Therefore, as a 
 judge, he has no right to vote. A commission under 
 the great seal confers the office of Lord High Steward 
 for the particular occasion on some member of the 
 House of Lords. When the indictment has been found, 
 and removed by writ of certiorari, the steward directs 
 a precept to the serjeant-at-arms to summon the Lords 
 to attend the trial. In cases of treason, or misprision 
 thereof, there must be summoned all the peers who 
 have a right to sit and vote in Parliament (c). The 
 decision is by the majority, which must consist of 
 twelve at the least. Bishops cannot be summoned to 
 this court, nor have they the right of being tried there. 
 
 queen's bench DIVISION OF THE HIGH COURT. 
 
 Queen's Bench This court has jurisdiction both in criminal and in 
 Division. ^|.yjj ^g^ggg . ^jjg former on the Crown side, the latter on 
 
 the Plea side. On the Crown side it takes cognizance 
 of criminal causes from high treason down to the most 
 trivial misdemeanor or breach of the peace. But its 
 criminal jurisdiction is rarely exercised, unless the cir- 
 cumstances of the case are of an extraordinary cha- 
 racter and demand an investigation which could not be 
 had in the ordinary course of things. 
 
 Original Its original jurisdiction includes all offences com- 
 
 jurisdiction. 
 
 (o) 7 & 8 Wm. 3, u. 3, s. H. 
 
287 
 
 COURTS OF A CRIMINAL JURISDICTION. 
 
 mitted in Middlesex, which may be prosecuted in this 
 court by indictment ; and misdemeanors committed in 
 any county of England may be prosecuted herein by 
 information filed by the Attorney-General ex officio, or 
 at the instance of a private individual prosecuting in 
 the Crown Office by leave of the court. But this juris- 
 diction is very rarely exercised ; crimes committed in 
 Middlesex being tried at the Central Criminal Court. 
 The grand jury are summoned only when the Master 
 of the Crown Office has received due notice of some 
 ■business to be brought before the court (d). 
 
 Its transferred jurisdiction is much more extensive. Transferred 
 To it indictments from all inferior courts may be re- J'»i''»<i"=tion. 
 moved by writ of certiorari ; but (unless it be an in- 
 dictment against a body corporate not authorized to 
 appear by attorney in the court in which the indict- 
 ment is preferred, or unless it be at the instance of 
 the Attorney-General acting on behalf of the Crown) 
 only under one of the following circumstances : that 
 it has been made clear by the party applying for the 
 writ to the court from which the writ is to issue 
 {i.e., the Queen's Bench), (a) that a fair and impartial 
 trial cannot be had in the court below ; or (b) that 
 some question of law of more than usual difficulty and 
 importance is likely to arise upon the trial ; or (c) that 
 a view of the premises in respect whereof any indict- 
 ment is preferred, or a special jury, may be required 
 for the satisfactory trial of the same (e). And the 
 same statute, still further to prevent the vexatious re- 
 moval of indictments into the Queen's Bench, enacts 
 that no certiorari is to issue to remove an indictment 
 unless recognizances be given for the payment of 
 costs in case of failure by the party applying for the 
 removal (/). 
 
 (d) 35 & 36 Vict. u. 52. 
 (c) 16 & 17 Vict. u. 30, s. 4. 
 (/) Ibid. 5. 5. 
 
288 
 
 COURTS OF A OEIMINAL JURISDICTION. 
 
 Trial at bar or 
 at nisi prius. 
 
 Inferior courts 
 superseded by 
 the Queen's 
 Bench. 
 
 As to the mode of trial in this court. In cases of 
 felony or treason the trial is at bar, that is, before the 
 judges of the court sitting in banc. In misdemeanors 
 the trial, if of sufficient importance, is at bar ; other- 
 wise at nisi prius. There are certain differences, ac- 
 cording as the trial is in the one or the other way ; 
 but into these we need not enter. The Queen's Bench 
 Diyision is empowered to order certain offenders to be 
 tried at the Central Criminal Court ((/). 
 
 On account of the dignity of the Queen's Bench 
 Division, as the highest court of criminal jurisdiction 
 over ordinary offenders, if that court comes into any 
 county Qi), all former commissions of oyer and ter- 
 miner and general gaol delivery are at once if so facto 
 absorbed and determined. But this does not apply to 
 the Central Criminal Court, which is held without 
 regard to whether the Queen's Bench Division is 
 sitting or not («) ; nor does it apply to the Middlesex 
 Sessions {j). 
 
 The tribunals hitherto noticed, as a rule, exercise 
 their jurisdiction irrespective of place ; those to which 
 we now turn are general but local, that is, found all 
 over the kingdom, but each attached to a particular 
 district ik). 
 
 (g) 19 Vict. c. 16. 
 
 (A) As it was removed to Oxford on account of the plague of 1665. 
 
 (i) 25 Geo. 3, c. 18 ; 32 Geo. 3, o. 48. 
 
 (J) This court, however, is not in strictness a court of oyer and 
 terminer. — Hal. Sum. 165. 
 
 {k) Formerly the High Court of Admiralty (now with another court 
 forming the Probate, Divorce, and Admiralty Division of the High Court) 
 had a limited criminal jurisdiction. But such jurisdicdon seems to have 
 been altogether superseded by certain statutes, chiefly the following : 
 4 & 5 Wm. 4, c. 36, s. 22. When the Central Criminal Court was con- 
 stituted, the judge of the Admiralty Court was placed amongst its judges ; 
 and it was provided that under the Central Criminal Court commission 
 of oyer and terminer and gaol delivery, two or more judges of that court 
 might hear and determine any offences committed on the high seas and 
 other places within the jurisdiction of the Admiralty ; and might deliver 
 the gaol of that court of any person detained therein for such offence. 
 
 7 & 8 Vict. c. 2. Similar power was given to the justices of assize. 
 
 Each of the Criminal Consolidation Acts, 1861, contains a clause to the 
 
COURTS OF A CEIMINAL JURISDICTION. 289 
 
 ASSIZES. 
 
 The heading we have just prefixed to a description Assizes, where 
 
 and w' 
 held. 
 
 of this class of tribunals is the popular, but not the *°^ ™^'^*'' 
 
 technical, designation of the courts of Oyer and Ter- 
 miner and General Gaol Delivery, which are periodically 
 held in every county in the kingdom. We may anti- 
 cipate by noticing that for ofifenoes committed in Lon- 
 don, Middlesex, and certain suburbs in Essex, Kent, 
 and Surrey, the Central Criminal Court has been estab- 
 lished ; and that, though assizes have been abolished 
 for the rest of Surrey, judges have been sent there in 
 virtue of a special commission. The assizes are held 
 twice in the year, at least, in each county, namely, in 
 the spring and summer; and in some places in the 
 winter also (I). 
 
 For the-purposes of the assizes the country is divided circuits. 
 into eight circuits, over each of which the judges travel, 
 holding courts at all the county and other assize towns. 
 In the spring and summer two judges are assigned to 
 each circuit, except the Welsh circuits, to which only 
 one is sent, the judges of the two Welsh circuits meet- 
 ing and sitting together in the counties of Cheshire 
 and Glamorgan. In the winter the arrangements are 
 
 effect that all indictable offences included in those acts, which have been 
 committed within the Admiralty jurisdiction, are to be deemed to be 
 oiFences of the same nature, and liable to the same punishment as if they 
 had been committed on land in England or Ireland ; and may be dealt with 
 and tried in any place in which the offender is apprehended or is in 
 custody : c. 96, s. 115 ; c. 97, s. 72 ; c. 98, s. 50 ; c. 99, s. 36 ; c. 100, s. 68 ; 
 see also c. 94, s. 9. 
 
 It should be remembered that the courts in the colonies have also cog- 
 nizance of offences committed within the Admiralty jurisdiction : v. 6 & 7 
 Vict, c. 94; 12 & 13 Vict. .;. 96 ; 18 & 19 Vict. u. 9], ». 21. 
 
 (V) The places which have usually had winter assizes are the follow- 
 ing :— Chelmsford, Lewes, Maidstone, Warwick, Derby, Lincoln, Leeds, 
 Leicester, Durham, Newcastle, Carlisle, Manchester, Liverpool, Gloucester, 
 and Cardiff. But by a recent Act (39 & 40 Vict. c. 57) power is given to 
 the Queen by order in council to unite counties for the purpose of the 
 Winter Assizes, and to appoint places of trial, &c. This course was adopted 
 for the first time in the winter of 1876. 
 
290 COURTS OF A CRIMINAL JURISDICTION. 
 
 irregular. The circuits as at present constituted are 
 the following : — 
 
 i. Northern (Westmoreland, Cumherland, and Lan- 
 caster). 
 
 ii. North-Eastern (Northumberland, Durham, and 
 York). 
 
 iii. Midland (Lincoln, Derby, Nottingham, "Warwick, 
 Leicester, Northampton, Eutland, Buckingham, and 
 Bedford). 
 
 iv. South -Eastern (Norfolk, Suffolk, Huntingdon, 
 Cambridge, Hertford, Essex, Kent, and Sussex). 
 
 V. Oxford (Berkshire, Oxford, Worcester, Stafford, 
 Salop, Hereford, Monmouth, and Gloucester). 
 
 vi. Western (Hants, Wilts, Dorset, Devon, Corn- 
 wall and Somerset), 
 
 vii. North Wales and Chester (Montgomery, Merio- 
 neth, Carnarvon, Anglesey, Denbigh, Flint, and Ches- 
 ter) (m). 
 
 viii. South Wales (Pembroke, Cardigan, Carmarthen, 
 Brecknock, Eadnor, and Glamorgan) (w). 
 
 Commissions It will bc Well to explain in virtue of what authority 
 nndev which ^]^g judgcs preside at the assizes, as there is commonly 
 e ju ges SI . ^ misconception in the matter. This authority is 
 fourfold, consisting of the following commissions: — 
 (a.) Of Oyer and Terminer. This commission, empower- 
 ing to try treasons, felonies, and misdemeanors, is 
 directed to certain judges and others. But only the 
 judges, serjeants-at-law. Queen's counsel, and barristers 
 with patents of precedence are of the quorum ; so that 
 the others cannot act without the presence of one of 
 them. Under this commission persons may be tried 
 
 (m) V. supra. 
 (n) V. supra. 
 
COUBTS OF A CRIMINAL JURISDICTION. 291 
 
 whether in custody or on bail ; but as the words of the 
 commission are " to inquire, hear and determine," they 
 can only proceed upon an indictment found at the same 
 assizes ; for they must first inquire by means Of the 
 grand jury before they are empowered to hear and 
 determine by the help of the petty jury. Therefore, a 
 further commission is necessary (o). (b.) Of Gaol 
 Delivery, directed to the judges, Serjeants and Queen's 
 counsel, the clerk of the assize and associate, empower- 
 ing them to try every prisoner in the gaol committed 
 for any offence whatever, so that the gaols may be 
 cleared of those awaiting trial, (c.) Of Nisi Prius (for 
 the trial of civil causes), (d.) Of the Peaee, by which 
 all justices are bound, under pain of fine, upon notice 
 to attend the judges, and to assist them, if required, in 
 such matters as lie within their knowledge and juris- 
 diction, for example, to return recognizances, &c. ( p). 
 
 It will be noticed that the judges do not sit in virtue 
 of their position as judges of the High Court at West- 
 minster; but} as commissioners specially sent down. 
 
 When the state of business requires it, they are often Commissioners, 
 assisted by Queen's counsel or Serjeants, so that some- 
 times as many as four or five commissioners are sitting 
 at the same time (q). 
 
 In this way there is a general clearance of prisoners 
 
 (o) V. 4 Bl. 270. 
 
 {p) i Bl. 278. 
 
 (g) It is provided by the Supreme Court of Judicature Act, 1873 (36 & 
 37 Vict. c. 66, s. 37), that the sittings of the Judges of the High Court 
 under commissions of assize, oyer and terminer, and gaol delivery, shall 
 be held by or before judges of the Queen's Bench, Common Pleas, or 
 Exchequer Divisions of the High Court; provided that the Queen may 
 include in such commission any ordinary judge of the Court of Appeal, or 
 any judge of the Chancery Division to be appointed after the commence- 
 ment of the Act, or any Serjeant at law, or any Queen's counsel, who shall 
 then have the power, authority, and jurisdiction of a judge of the said 
 High Court. By the Act of 1875 (38 & 39 Vict. c. 77, s. 8), future judges 
 of the Probate, Divorce, and Admiralty Division are to share in this work, 
 Se« also s. 29 of the Act of 1873, and 13 & 14 Vict. c. 25. 
 
 u 2 
 
292 COURTS OF A CRIMINAL JURISDICTION. 
 
 awaiting their trial at least twice (practically, now, 
 three times) a year. On urgent occasions, as of offences 
 demanding immediate inquiry and punishment, the 
 sovereign issues a special or extraordinary commission 
 of oyer and terminer and gaol delivery for the special 
 trial of such offences, and those only. The proceedings 
 are generally the same as on ordinary commissions. 
 
 CENTRAL CRIMINAL COURT. 
 
 Central Cvimi- This court has generally the same jurisdiction as the 
 nal Court. assizes. It was established in 1834 for the trial of 
 treasons, felonies and misdemeanors, committed within 
 the city of London and county of Middlesex, and in 
 certain specified parts of the counties of Essex, Kent, 
 and Surrey; such district for this purpose being re- 
 garded as one county (r). The judges sit under com- 
 missions of oyer and terminer and gaol delivery. The 
 sessions of the court are required to be holden at least 
 twelve times a year, and oftener if need be ; the par- 
 ticular dates being fixed each year at a meeting of the 
 judges. 
 
 The commis- 
 sioners. 
 
 The commissioners or judges of the court are the 
 Lord Mayor, Lord Chancellor or Lord Keeper, the 
 Judges of the High Court (except those who were not 
 in office, and not liable before the commencement of the 
 Judicature Act) (s), the Dean of the Arches, the Aldermen 
 of London, the Kecorder and Common Serjeant of Lon- 
 don, the Judge of the City of London court, any person 
 who has been Lord Chancellor, Lord Keeper, or a Judge 
 of the High Court, and such others as the Crown from 
 time to time may appoint. Usually at each session the 
 recorder and common Serjeant, and if the number of 
 prisoners requires it, the judge of the City of London 
 court, sit on the first two days ; after which they are 
 
 (r) i&5 Wm. 4, c. 36. 
 
 (s) 36 & 37 Vict. 0. 66, =,. H. 
 
COURTS OP A CRIMINAL JURISDICTION. 293 
 
 joined by the Westminster judges on the rota, who 
 come down to try the more serious cases. On the bench 
 there is also always either the lord mayor or one of 
 the aldermen, who lends the" dignity of his presence to 
 the proceedings, but does not take any actiye part 
 therein. 
 
 We have already seen (t) that offences committed Cases which 
 within the jurisdiction of the Admiralty may be tried ™Yhe Ce™* 
 here ; also that certain cases may be sent by the Queen's tral Criminal 
 Bench Division to this court (u). Here also may be °^^ ' 
 tried persons subject to the Mutiny Acts for the murder 
 or manslaughter in England or Wales of any person 
 subject to those Acts (x). 
 
 The Central Criminal Court has also a transferred Its transferred 
 jurisdiction. Indictments found at the various sessions •'""^ "'*"'°' 
 of the peace within the district of its jurisdiction may 
 be removed to it by certiorari (y), and justices of the 
 peace may deliver over indictments found at the 
 sessions to this court, as to the judges on circuit (2). 
 
 The sitting of the Central Criminal Court does not Sessions not 
 
 interfe 
 with. 
 
 interfere with the sessions of the peace held within the "''"f"'^'! 
 
 district, that is, the latter may be held notwithstanding 
 that the former tribunal is sitting (a). 
 
 QUARTER SESSIONS. 
 
 These courts, which are held for the trial of criminals Sessions, 
 as well as for other objects, are of two kinds : — 
 
 i. The General (Quarter) Sessions of the Peace 
 for the County. 
 
 ii. The Borough Sessions. 
 
 (0 V. p. 288, n. 
 
 (m) v. p. 288. 
 
 (ic) 25 & 26 Vict. c. 65. 
 
 (i/) 4 & 5 Vict. .>. 36, s. 16. 
 
 14 Ibid. ». 19. 
 
 (a) Ibid. ». 21. 
 
294 
 
 COUETS OF A CRIMINAL JURISDICTION. 
 
 County quar- 
 ter sessions. 
 
 Time of 
 holding. 
 
 i. The General County Sessions must be held in every 
 county once every quarter at stated times, in which 
 case they are termed the general quarter sessions of 
 the peace. And if, on account of the amount of busi- 
 ness, it is necessary that courts of this description 
 should be held intermediately, they are termed general 
 sessions of the peace. The authority and jurisdiction 
 of the court under either title is the same, except where 
 the jurisdiction is given by statute expressly to the 
 court of quarter sessions. 
 
 The dates fixed by statute for the holding of the 
 county quarter sessions are the first weeks after each 
 of the following days — October 11th, December 28th, 
 March 31st, June 24th (b). But the date of the April 
 quarter sessions may be altered by the justices to any 
 time between March 7th and April 22nd, in order that 
 the sessions may not clash with the assizes (e). In 
 addition to the sessions at these regular intervals, the 
 justices may hold general sessions of the peace at such 
 other times as they think fit, when the state of the 
 business requires this to be done. If the sessions last 
 more than one day, they must be adjourned to another 
 (not necessarily the next), and so on until the work is 
 finished. 
 
 Who compose 
 the court. 
 
 The court is held before two or more justices of the 
 peace, one of whom must be of the quorum {d). When 
 the number of prisoners is large, a second court may be 
 formed with the same authority as the first (e). In 
 
 (6) 11 Geo. 4 & 1 Wm. 4, o. 70, s. 35. 
 
 (c) 4 & 5 Wm. 4, c. 47. 
 
 (d) The force of this limitation is, however, obsolete. In the commis- 
 sion of peace to inquire of and determine felonies and misdemeanors com- 
 mitted in the county, a clause is inserted directing some particular justices, 
 or one of them, to be always included, so that no business may be done 
 without their presence. The clause runs thus : " Quorum aliqtiem vestrum 
 A., B., C, D., uwwm esse volumus;" whence the justices so named were 
 usually termed "justices of the quorum." But now the practice is to 
 make all of the justices of the quorimi. 
 
 («) 21 & 22 Vict. c. 73, ss. 9-11. 
 
COURTS OF A OEIMINAL JtTRISDICTION. 295 
 
 each court a chairman presides, and acts in general as 
 a judge, consulting the other justices present when he 
 thinks fit. 
 
 Formerly this court had the power of trying any Jurisdiction of 
 felony or misdemeanor committed in the county, and ' ^ sessions. 
 the commission in its present form does not limit their 
 jurisdiction (/). But the justices usually remitted the 
 more serious felonies to the assizes ; a clause in the 
 commission providing that if any difficulty should arise, 
 the justices of the peace should not give judgment 
 unless in the presence of the justices of the one or the 
 other bench {i.e., Queen's Bench or Common Pleas), or 
 of one of the justices appointed to hold the assizes in 
 the aforesaid county. But now the criminal jurisdiction 
 of the sessions is expressly by statute confined to the 
 trial of small felonies and misdemeanors. And it is to 
 be noticed that the justices in sessions cannot try any 
 newly created ofi'ence, unless the statute which creates 
 it expressly gives them power. The chief statute Crimes not 
 limiting their jurisdiction {g) precludes them from j^ggfy^/' 
 trying any of the following crimes : — 
 
 1. Treason, murder, or any capital felony. 
 
 2. Any felony which, when committed by a person 
 not previously convicted of felony, is punishable by 
 penal servitude for life. 
 
 3. Misprision of treason. 
 
 4. Offences against the Queen's title, prerogative, 
 person, or government, or against either House of 
 Parliament. 
 
 5. Offences subject to the penalties oi prmrmmire. 
 
 6. Blasphemy and offences against religion. 
 
 7. Administering and taking unlawful oaths, 
 
 (/) As to Forgery and Perjury, v. Arch. Q. S. 6, 7. 
 ((/) 5 & 6 Vict. c. 38. 
 
296 COURTS OP A CKIMINAL JUKISDICTION. 
 
 8. Perjury and subornation of perjury. 
 
 9. Making, or suborning any other person to make, a 
 false oath, affirmation, or declaration, punishable as 
 perjury or as a misdemeanor. 
 
 10. Forgery. 
 
 11. Unlawfully and maliciously setting fire to crops 
 of corn, grain, or pulse,' or to any part of a wood, 
 coppice, or plantation of trees, or to any heath, gorse, 
 furze, or fern. 
 
 12. Bigamy and offences against the laws relating to 
 marriage. 
 
 13. Abduction of women and girls. 
 
 14. Endeavouring to conceal the birth of a child. 
 
 15. Offences against any provision of the laws relating 
 to insolvents (offences against any provision of the law 
 relating to bankrupts may be tried at the Quarter 
 Sessions since 32 & 33 "Vict. c. 62, s. 20). 
 
 16. Composing, printing, or publishing blasphemous, 
 seditious, or defamatory libels. 
 
 17. Bribery. 
 
 18. Unlawful combinations and conspiracies, except 
 conspiracies and combinations to commit any offence 
 which the justices or recorder have or has jurisdiction 
 to try when committed by one person. 
 
 19. Stealing, or fraudulently taking, or injuring, or 
 destroying, records or documents belonging to any 
 court of law or equity, or relating to any proceeding 
 therein. 
 
 20. Stealing, or fraudulently destroying or conceal- 
 ing, wills or testamentary papers, or any document or 
 written instrument being or containing evidence of 
 the title to any real estate, or any interest in lands, 
 tenements, or hereditaments. 
 
COURTS OF A CRIMINAL JURISDICTION. 297 
 
 By other statutes their jurisdiction does not extend 
 to the trial of : — 
 
 21. The misdemeanor of three or more persons pur- 
 suing game hy night (9 Geo. 4, c. 69, s. 9). 
 
 22. Brihery or undue influence at parliamentary 
 elections (17 & 18 Vict. c. 102. s. 10). 
 
 23. Fraudulent misdemeanors, as agents, trustees, 
 bankers, factors, &c., provided against by the Larceny 
 Act, 1861, sections 75-86 (24 & 25 Vict. c. 96, s. 87). 
 
 24. Offences against the False Personation Act, 1874 
 (37 & 38 Vict. c. 36, s. 3). 
 
 The court also hears appeals against summary con- Appeals heard 
 yictions, in cases where the right of appeal is expressly *' s^^^""'^- 
 given by statute to the person convicted. Under 
 certain circumstances already noticed (Ji) an indictment 
 may be removed from the sessions to the Queen's 
 Bench by writ of certiorari. 
 
 In appeals and other cases where the justices in Eeriew of 
 sessions are made judges of the fact as well as of the P™<=«^;i'°g^ 
 
 _ _ J _ o of sessions. 
 
 law, their decision is final, and cannot be reversed by 
 any court without their consent. But if they have a 
 difficulty, they may put the facts in the form of a 
 special case for the opinion of the Queen's Bench Divi- 
 sion, meanwhile confirming or quashing the order be- 
 fore them. Their action will then be confirmed or 
 quashed by the superior court. In ordinary criminal 
 cases the only way in which the proceedings can be 
 inquired into after judgment is by writ of error, &c. ; a 
 subject which will be treated of hereafter (*). 
 
 The Middlesex Sessions require a separate notice. By Middlesex 
 
 Sessions. 
 
 (A) V. p. 287. 
 (0 V. p. 448. 
 
298 COURTS OF A OEIMINAL JUKISDICTION. 
 
 statute (/c) two sessions or adjourned sessions of the 
 peace are to be held eyery calendar month. The first 
 sessions in January, April, July, and October are the 
 general quarter sessions of the county ; and the second 
 in those months are the adjournments of the general 
 quarter sessions. So that others are styled general 
 sessions of the county. But the distinction is rendered 
 unimportant by a provision that every general sessions 
 of the county of Middlesex and adjournments thereof, 
 shall have the power, &c., of a general quarter sessions 
 of that county (Z). There are usually sitting at the 
 Middlesex Sessions held at Clerkenwell Green two 
 judges. In one court is the assistant judge, appointed 
 by the Queen, being a barrister of ten years standing 
 and in the commission of the peace for the county. 
 In the other court sits the deputy assistant judge, 
 appointed by the assistant judge (m). A temporary 
 assistant judge may be appointed under certain circum- 
 stances (w). 
 
 sessions. 
 
 Borough ii. Borough Sessions. — Many corporate towns or 
 
 boroughs have quarter sessions of their own. This 
 exempts them in almost every matter from the juris- 
 diction of the county sessions. The borough sessions 
 have, in general, the same jurisdiction as the county 
 sessions (o), being subject to the same limitations as to 
 the trial of certain offences. The court is held at least 
 once in every quarter of a year ; or at such other and 
 more frequent times as the recorder may think fit, or as 
 the Queen may be pleased to direct (p). The recorder 
 of the borough, who must be a barrister of five years' 
 standing, is the sole judge, though he may be assisted 
 in the trial of criminals by some other barrister ; and 
 in case of his absence may appoint a deputy. 
 
 (A) 7 & 8 Vict. 0. 71 ; 22 & 23 Vict. c. 4. 
 
 (0 22 & 23 Vict. 0. 4, s. 4. 
 
 (m) 7 & 8 Vict. c. 71 ; 14 & 15 Vict. c. 55, s. 14. 
 
 In) 22 & 23 Vict. c. 4, b. 3. 
 
 (o) 5&6 Wm. 4, c. 76, s. 105, &c. 
 
 (p) Ibid. 
 
COURTS OF A CRIMINAL JURISDICTION. 299 
 
 The coiincil of any borough may obtain a grant 
 of a separate court of quarter sessions by petitioning 
 the Queen in council, and setting forth satisfactory 
 grounds to substantiate the application. Two or more 
 boroughs conjointly may have such a court {q). 
 
 COURT OF THE CORONER. 
 
 The business of this court is to inquire when any Coroner's 
 one dies in prison, or comes to a violent or sudden ™"'^'' 
 death, by what means he came to his end. If the 
 verdict in this inquisition is murder or manslaughter, 
 the coroner must commit the prisoner for trial. But, 
 as we shall see in a subsequent chapter, the finding of 
 the coroner's jury is practically unimportant (r). 
 
 There have been certain criminal courts of a private 
 or special jurisdiction, which are restricted both in 
 respect of the place and of the cause. One example 
 alone of this class remains, and it is not of any great 
 importance (s). 
 
 UNIVERSITY COURTS IN OXFORD AND CAMBRIDGE. 
 
 Both universities enjoy a certain exemption from University 
 the ordinary criminal tribunals ; but at Cambridge the ™"i''^- 
 privilege cannot be claimed if any person not a member 
 of the University is a party (i). In order to take 
 advantage of this immunity, the proper course is, 
 after the indictment has been found by the grand jury 
 at the assizes or elsewhere against a scholar or other 
 privileged person, for the Vice-Chanoellor to claim the 
 
 (5) 5 & 6 Wra. 4, c. 76, s. 103. 
 
 (r) V. p. 334. 
 
 (s) The court of the Lord Steward, Treasurer, or Comptroller of the 
 King's Household, to inquire if anyone in the household imagined, &c., 
 the death or destruction of the king, his privy councillors, or certain other 
 officers ; and the court of the Lord Steward of the King's Household, to 
 inquire of murders and other crimes whereby blood has been shed in the 
 king's palaces or abodes, are both obsolete. 
 
 (i) 19 & 20 Vict. c. 17, ». 18. 
 
300 COUKTS OF A CRIMINAL JURISDICTION. 
 
 cognizance of the matter, and then it will be sent to one 
 of the following courts : — 
 
 High Steypard's High Steward's Cowrt. — It has jurisdiction over 
 ™"' ■ cases of treason, felony, or mayhem committed by a 
 
 privileged person. The process at Oxford is as fol- 
 lows : — A special commission is issued to the high 
 steward and others to try the particular case. The 
 high steward issues one precept to the sheriff of the 
 county, who returns a panel of eighteen freeholders, 
 and another to the university bedels, who return a 
 panel of eighteen matriculated laymen. The indict- 
 ment is then tried in the Oxford Guildhall by a jury 
 de medietate, half of freeholders and half of such matri- 
 culated laymen. If the accused is found guilty of a 
 capital offence, the sheriff must execute the university 
 process, to which he is bound by an oath (m). 
 
 Vice-Chan- Vice- Chancellor's Court. — This court has authority to 
 
 ce or s court. ^^ ^y[ misdemeauors committed by privileged members 
 of the university. The judge is the Vice-Chancellor. 
 
 This exceptional jurisdiction is rarely, if ever, exer- 
 cised, the Yice-Chancellor's court meeting for other 
 purposes. Formerly, however, on several occasions 
 cases of murder and other crimes were tried in the high 
 steward's court. 
 
 Petty sessions and summary proceedings before 
 single magistrates will be noticed hereafter (x). 
 
 (u) 4 Bl. 277. 
 
 (a) V. p. 458. We may mention two courts which, as far as criminal 
 matters are concerned, have totally fallen into desuetude — ^the Sheriff's 
 Tourn and the Court Leet, or View of Frank Pledge. They had the same 
 jurisdiction, namely, the trial of trivial misdemeanors ; that of the former 
 extending to the whole county, that of the latter to a particular hundred, 
 lordship, or manor. Another court may be said to be virtually super- 
 seded — the court of the Clerk of the Market. Its chief business was to 
 test the weights and measures, and to punish by fine if they were not 
 according to the standard. Now an inspector of weights and measures, or 
 a magistrate, may enter any place where goods are exposed for sale, and if 
 the weights and measures are found incorrect, may seize and forfeit them ; 
 and the party in whose 'possession they are found, or who obstructs the 
 examination, is fined a sum not exceeding '£5. S & 6 Wm. 4, s. 63. 
 
COURTS OP A CRIMINAL JURISDICTION. 
 
 301 
 
 SKETCH OF A CRIMINAL TRIAL. 
 
 We propose now to discuss in their proper order the 
 various steps taken to secure the punishment of a 
 criminal who is guilty of a felony or misdemeanor, in 
 other words, to examine the proceedings in any ordinary 
 criminal ease (y). But before doing this, it will he 
 well to sketch a rough outline or map of the whole 
 ground to be trayersed before the offender suffers his 
 punishment. 
 
 The first thing to be done is to lay hold of the Outline of 
 prisoner, or to arrest him. "When he is arrested and a^Tminaf' '° 
 brought before the magistrates, if they think the case case. 
 ought to sent on to trial, he is committed for trial ; the 
 magistrates either at once committing him to prison to 
 await the trial, or allowing him to remain at large on 
 his finding sufficient hail to ensure his appearance when 
 he is wanted. What particular mode of prosecution is 
 to be adopted must be considered, as there are several 
 ways of formal accusation. In most cases the prisoner 
 will now be forthcoming to take his trial ; but either 
 on account of his having avoided the warrant of arrest, 
 or because he has been admitted to bail and does not 
 surrender, process must issue to bring him into court. 
 For some good reason it may be desirable to remove 
 the trial to the supreme criming,! court by a writ of 
 certiorari. The day of trial having arrived, the prisoner 
 is arraigned, or called to the bar of the court to answer 
 the charge against him. If he does not confess, or. 
 stand mute, he will then shew in what way he proposes 
 to meet the charge, whether by demurring to the suffi- 
 ciency in point of law of the charge ; or by pleading 
 some particular obstacle to his being convicted; or, 
 generally, that he is not guilty. Issue is then joined. 
 
 (i/) That is, a case which is not dealt with summarily before the magis- 
 trates, or specially before some exceptional tribunal, as the House of Lords. 
 
302 COUETS OF A CBIMINAL JURISDICTION. 
 
 and the trial of the question in point takes place. The 
 prisoner is said to be convicted on the jury finding a 
 verdict of guilty ; and judgment, and the other conse- 
 quences of this conviction, follow. The effects of this 
 judgment will, however, be avoided by its being 
 reversed, or by the prisoner being reprieved ox pardoned. 
 Lastly, if the prisoner has been convicted of a capital 
 crime, he must suffer execution. 
 
• ( 303 ) 
 
 CHAPTER III. 
 
 AEEEST. 
 
 The apprehending or restraining of a man's person, in Anest, defin 
 order to insure his being forthcoming to answer an ''°° " ■ 
 alleged or suspected crime (z). Any person is liable to 
 an arrest on a criminal charge, provided he is charged 
 with such a crime as will at least justify holding him 
 to bail when taken. 
 
 An arrest may be made either : — 
 
 A. By warrant. 
 
 B. Without warrant. Here we shall have to 
 
 distinguish three cases. Where the arrest is 
 (a) by an officer ; (b) by a private person ; 
 (c) by hue and cry. 
 
 A. A warrant is a precept under hand and seal to Warrant. 
 some officer to arrest an offender, that he may be dealt 
 with according to due course of law. 
 
 A warrant may, under certain circumstances, be By whom 
 granted by the speaker of the House of Lords or House S'*"*^"*- 
 of Commons ; or by the privy council ; or by one of 
 the secretaries of state. A judge of the Queen's Bench 
 Division may issue a warrant to bring before him for 
 examination any person charged with felony. He may 
 also issue his warrant for apprehending and holding to 
 bail any person, upon affidavit or certificate of the fact 
 
 («) It is almost unnecessary to remind the reader that a person may 
 under certain circumstances be arrested in a civil proceeding, and not only 
 for a crime. 
 
warrant will 
 be issued. 
 
 304 AEBEST. 
 
 that an indictment has been found, or information filed 
 in that court against any such person for a misde- 
 meanor (a). Courts of oyer and terminer (i.e., in general 
 the assizes and Central Criminal Court) and the jus- 
 tices at sessions may also issue warrants against those 
 against whom indictments for felony or misdemeanor 
 have been found within their jurisdiction. 
 
 w;arrants usu- The abovo casos are of an exceptional character. 
 by'nfagCtrates Warrants are ordinarily issued by justices of the peace, 
 out of sessions, not sitting in sessions. The law on this subject was 
 consolidated by 11 & 12 Vict. c. 42 (b). 
 
 When a In what cases may it be issued. — When a charge or 
 
 complaint has been made before one or more justices 
 that a person has committed or is suspected to have 
 committed any treason, felony, or indictable misde- 
 meanor, or other indictable offence, within his or their 
 jurisdiction ; or that, having committed it elsewhere 
 (even within the Admiralty jurisdiction or on land 
 beyond the seas (c) ), he resides within his or their juris- 
 diction; then, if the accused is not in custody, two 
 courses are open to the justice ; (a) to issue a warrant 
 to apprehend and bring the accused specially before 
 himself, or, generally, before other justices of the 
 jurisdiction; or (b) to issue, in the first place, a 
 summons directed to the accused, requiring him to 
 appear before himself, or other justices of the jurisdic- 
 tion ; and then, only if the summons is disobeyed by 
 non-appearance, to issue a warrant (d). 
 
 A justice will also issue a warrant to apprehend a 
 person against whom an indictment has been found, on 
 the production to him of the certificate of the clerk of 
 
 (a) 48 Geo. 3, c. 58, s. 1. 
 
 (6) This statute does not affect the Metropolitan Police, or the London 
 Police Acts. 
 
 (c) 11 & 12 Vict. c. 42, s. 2. 
 
 (d) Ibid. =. 1. 
 
ATJEEST. 305 
 
 indictments at the assizes, of the peace at the sessions. 
 If the party indicted is already in custody for some 
 other offence, the justice may issue his warrant to the 
 gaoler, commanding him to detain the accused until 
 he shall be removed by habeas corpus for the purpose of 
 being tried on the indictment, or until he shall other- 
 wise be removed or discharged out of his custody^in due 
 course of law (e). 
 
 To enable a justice to issue a warrant in the first The informa- 
 instance (i.e., as in (a) above), it is necessary that an ''°°' 
 information and complaint in writing, on the oath 
 or affirmation of the informant, or of some other 
 witness on his behalf, should be laid before the justice. 
 But if a summons only is to be issued in the first 
 instance, the information may be by parol and without 
 oath (/). 
 
 The summons is directed to the accused. It states The summons, 
 shortly the charge, and orders him to appear before the 
 justice issuing it, or some other justice of the jurisdic- 
 tion, at a certain time and place. It is served by a 
 constable on the accused personally, or at his last and 
 usual place of abode (g). 
 
 The warrant is directed to a particular constable, or The warrant, 
 to the constables of the district where it is to be exe- 
 cuted, or generally to the constables of the jurisdiction 
 
 (e) 11 & 12 Vict. 0. 42, ». 3. 
 
 (/) Ibid. s. 8. 
 
 (3) Ibid. s. 9. The following is an example of a summons : — 
 
 "To John Styles, of, &c., labourer. Whereas you have this day been 
 charged before the undersigned, one of Her Majesty's justices of the peace 
 in and for the said county of * * * *, for that you on, &c. (the offence 
 stated shortly) : These are therefore to command you, in Her Majesty's 
 name, to be and appear before me on Thursday, the 15th day of June, at 
 eleven o'clock in the forenoon at * * * * or before such other justice or 
 justices of the peace for the said county as may then be there, to answer 
 to the said charge, and to be further dealt with according to law. Herein 
 fail not. 
 
 " Given under my hand and seal, this 13th day of June, in the year of 
 our Lord 1876, at * * * *, in the county aforesaid. 
 
 "J. H. (L. S)." 
 
306 
 
 ABREST. 
 
 of the issuing justice. It states shortly the offence, 
 and indicates the offender, ordering the constable to 
 bring him before the issuing justice, or other justices 
 of the same jurisdiction. It remains in force until 
 executed, the execution being effected by the due 
 apprehension of the accused Qi). It may be issued on 
 Sunday as well as on any other day («). 
 
 Backing the 
 warrant. 
 
 A warrant from the chief or other justice of the 
 Queen's Bench Division extends all over the kingdom, 
 and is tested, or dated, England, not Oxfordshire, Berks, 
 or other particular county. But the warrant of a 
 justice of the peace in one county, as Yorkshire, must 
 be hacked, that is, signed by a justice of the peace in 
 another, as Middlesex, before it can be executed in the 
 latter (k). But the justice backing, in certain cases, 
 may require the accused to be brought before him, or 
 some other justice of the jurisdiction (/). A warrant 
 issued in England may be backed not only in another 
 jurisdiction in England, but also in Scotland, Ireland, . 
 or the Channel Islands, and vice versa (m). 
 
 Executing 
 the warrant. 
 
 When a warrant is received by the officer, he is 
 bound to execute it, so far as the jurisdiction of the 
 justice and himself extends. And a warrant drawn up 
 according to the statutory form will (even though the 
 magistrate who issued it has exceeded his jurisdiction). 
 
 (A) 11 & 12 Vict. i;. 42, s. 10. An example of a warrant : — 
 
 " To the constable of * * * * and to all other peace officers in the said 
 county of * * * *^ Whereas A. B. of * * * *, labourer, hath this day 
 been charged upon oath before the undersigned, one of Her Majesty's, 
 justices of the peace in and for the said county of * * * *, for that he 
 gjj****^^.**** ^y^ jjo. (^silting shortly the offence): These are there- 
 fore to command you, in Her Majesty's name, forthwith to apprehend the 
 said A. B., and to bring him before me, or some other of Her Majesty's 
 justices in and for the said county, to answer unto the said charge, and to 
 be further dealt with according to law. 
 
 " Given under my hand, &c." (as in the case of a summons). 
 
 (.) Ibid. s. 4. 
 
 (k) 4 Bl. 2<11. 
 
 (0 Ibid. ». 11. 
 
 (m) Ibid. ss. 12-15. See also 14 & 15 Vict. c. 55, s. 18. As to the 
 colonies, 6 & 7 Vict, u, 34, and 16 & 17 Vict. c. 118. 
 
ABEEST. 307 
 
 at ail events, indemnify the officer wlio executes tiie 
 same ministerially (w). The officer in his own jurisdic- 
 tion need not shew his warrant if he tells the substance 
 of it. Bare words will not constitute an arrest without 
 laying hold of the accused, or otherwise restraining his 
 liberty. The officer may break open doors to execute 
 a warrant for treason or other felony, or a breach of 
 the peace, if upon demand of admittance it cannot 
 otherwise be obtained (o). An arrest for any indictable 
 offence may be made on Sunday ; and, for felonies or 
 breaches of the peace, in the night-time as well as the 
 day. 
 
 If there is just cause, any justice or the sheriff may Po$se comi- 
 take of the county any number he thinks proper to *"*"*■ 
 pursue, arrest, and imprison traitors, felons, and 
 breakers of the peace (raising the jposse comitatus) ; 
 persons refusing to aid may be fined and imprisoned {jp). 
 
 A general warrant to apprehend aU persons suspected General 
 of a crime is void. So is a warrant to apprehend the '^^"^'^'^^■ 
 authors, printers, and publishers of a libel, without 
 naming them (§'). General warrants to take up loose, 
 idle, and disorderly people, and search warrants are 
 perhaps the only exceptions to this rule (r). 
 
 Though not strictly belonging to the subject in hand, Search 
 namely, the arrest of criminals, it may be convenient ^*'''''"'*^' 
 here to notice search warrants. On the oath of a com- 
 plainant that he has probable cause to suspect that his 
 property has been stolen, reason for his suspicion being 
 shewn, a justice may issue a warrant to search the 
 premises of a person suspected of the felony. And as to 
 
 (n) 24 Geo. 2, c. 44. 
 
 (o) As to killing a constable in the execution of his duty, v. p. ] 65 ; as to 
 when he is justified in killing the accused, v. pp 148, 166. 
 (p) Dalton, u. 171. 
 (q) Money v. Leach, 1 Bl. W. 555. 
 (r) 5 Burn's, 1131. 
 
 X 2 
 
308 
 
 AEREST. 
 
 Arrests with- 
 out warrant, 
 by officers ; 
 
 property otherwise the subject of fraudulent practices, 
 it is proTided that if any credible witness proves upon 
 oath before a justice a reasonable ground for suspecting- 
 that any person has in his possession, or on his premises, 
 any property with respect to which an offence punish- 
 able under the Larceny Aet, 1861, has been committed, 
 he may grant a warrant to search for such property, as 
 in the case of stolen goods (s). 
 
 B. Arrests without warrant. 
 
 As to arrests by officers, they may be made by 
 
 i. Justices of the Peace, who may themselyes appre- 
 hend, or cause to be apprehended, by words only, i.e., 
 without warrant, any person committing a felony or 
 breach of peace in their presence (t). 
 
 ii. The sheriff may apprehend any felon or breaker of 
 the peace within the county. 
 
 iii. The coroner, any felon within the county. 
 
 by constables. It. A constalle may arrest, without warrant, any one 
 for treason, felony, or breach of the peace committed 
 in his view, within his jurisdiction, and carry him 
 before a magistrate. So, also, on reasonable charge of 
 felony, or of having given a dangerous wound ; or upon 
 reasonable suspicion that one of the above offences has 
 been committed, though it should afterwards appear 
 that no felony or wounding had been committed. But, 
 as a rule, he may not arrest without warrant in a mis- 
 demeanor, though he may interpose to prevent a breach 
 of the peace, and to accomplish this object he may 
 arrest the person menacing, and detain him in custody 
 till the chance of the threat being executed is over («). 
 Also he may arrest without warrant, and then must 
 
 (s) 24 & 25 Vict. c. 96, s. 103. 
 
 («) As to apprehension, &c., for contempt' in face of court, v. p. 98. 
 
 (m) v. 2 Hale, P. C. 88. 
 
ARREST, 
 
 309 
 
 take before a justice of the peace as soon as reasonably 
 may be, any person whom he finds lying or loitering in 
 any highway, yard, or otljer place, during the night, 
 and whom he has good cause to suspect of having com- 
 mitted, or of being about to commit, any felony against 
 the Larceny, Arson and Malicious Injuries to Property, 
 or Offences against the Person Acts respectively (x). 
 Also he may take into custody any holder of a licence 
 granted under the Penal Servitude Acts, who is reason- 
 ably suspected of having committed any offence or 
 broken any of the conditions of his licence (j/). 
 
 If, upon a reasonable charge for which he may arrest 
 without warrant, the constable refuses, he may be in- 
 dicted and fined. When he acts without a warrant, by 
 virtue of his office as constable, he should, unless the 
 party is previously acquainted with the fact, or can 
 plainly see it, notify that he is a constable, or that he 
 arrests in the Queen's name, and for what. 
 
 The constable's right to break open doors, his justi- 
 fication in killing in the execution of his duty, and the 
 consequences of his being killed, are generally the same 
 as if he had proceeded upon a warrant (z). 
 
 V. Arrests by private persons. — Any person who is Arrest by pri- 
 present when a felony is committed, not only may, but ™'^ persons, 
 is bound, without warrant, to arrest the offender. And 
 a private person is bound to assist an officer who 
 demands his aid in the lawful taking of a felon, or the 
 suppression of an affray. If in any case the felon 
 escapes through his negligence to assist, for which 
 there is no good excuse, he is liable to fine and im- 
 prisonment. A private person also may arrest (a) any 
 
 (a) 24 & 25 Vict. u. 96, s. 104; c. 97, s. 57; c. 100, ». 66. 
 
 (i/) 27 & 28 Vict. li. 47, s. 6. As to arrest of persons likely to commit 
 crimes under the Prevention of Crime Act, v. p. 281. Special Acts regulate 
 the powers of constables within the Metropolitan Police District. 
 
 («) V. pp. 165, 166, 307. 
 
310 AKKEST. 
 
 one whom he finds committing an indictable offence by 
 night {i.e., 9 p.m. to 6 a.m) {a) ; or (b) a person com- 
 mitting any offence (except angling in the daytime) 
 punishable under the Larceny Act (b) ; or (c) a person 
 committing an offence against the Coinage Act (c). 
 Also the owner of the property injured, or his servant, 
 or any other person authorized by him, may apprehend 
 a person committing any offence against the Malicious 
 Injuries to Property Act {d). Anj person to whom 
 property is offered to be sold, pawned, or delirered, if 
 he has reasonable cause to suspect that any offence 
 punishable under the Larceny Act has been committed 
 with respect to such property, is authorized and re- 
 quired to forthwith take the party offering and the 
 property offered before a magistrate (e). 
 
 Arrest by pri- A private person may also arrest, without warrant, 
 lu'saspicion °^ reasonable suspieion of felony. But he does so at 
 his peril, and is liable to the coiisequences of false im- 
 prisonment, unless he can afterwards prove that a 
 felony has actually been committed by some one, and 
 that there was reasonable ground to suspect the person 
 apprehended. (It will be remembered that a peace 
 officer is not liable, although no crime has been com- 
 mitted, if there were reasonable grounds for suspicion.) 
 Not that the private person has no course left open to 
 him; he is justified in requiring a constable to do 
 whatever the constable by virtue of his office is justified 
 in doing. 
 
 Points in There is this distinction between arrests in view of 
 
 Tn suspicion*^ *^® Crime and on suspicion by private persons. In the 
 and in view former cESo he may break open doors to effect the 
 differ! """"^ arrest ; and the consequences of his killing or being 
 killed are generally the same as if an officer were 
 
 (a) 14 & 15 Vict. u. 19, s. 11. 
 (6) 24 & 25 Vict. u. 96, s. 103. 
 
 (c) 24 & 25 Vict. u. 99, s. 31. 
 
 (d) 24 & 25 Vict. <;. 97, s. 61. 
 
 («) 24 & 25 Vict. u. 96, o. 103. As to arrest in game offences, v. p. 141. 
 
AKBBST. 
 
 311 
 
 arresting. But if the arrest by a private person is 
 merely on suspicion, he is not justified in breaking 
 open doors; and if either party kills the other, it is 
 said to amount to manslaughter at the least. 
 
 A private person may arrest another for the purpose 
 of putting a stop to a breach of the peace committed 
 in his presence. 
 
 Arrest upon Hue and Cry. — The old common law Hue and cry. 
 process of pursuing with horn and with voice all felons 
 and such as have dangerously wounded others. The 
 hue and cry may be raised by constables, private per- 
 sons, or both. The constable and his assistants have 
 the same powers, protection, and indemnification as if 
 acting under the warrant of a magistrate ; and if they 
 have obtained a warrant, they may foUow by hue and 
 cry into a different county from that in which the war- 
 rant was granted, without getting it backed. Private 
 persons who join are justified, even though it should 
 turn out that no felony has been committed. But if a 
 person wantonly, and maliciously, and without cause 
 raises the hue and cry, he is liable to punishment as a 
 disturber of the peace (/). 
 
 Rewards for the Apprehension of Offenders. 
 
 In connection with the subject of arrest, we may Eewards for 
 notice some encouragements which the law holds out of oriminair 
 for exertions in bringing certain classes of criminals to 
 justice. When any person appears to a court of oyer 
 and terminer and gaol delivery to have been active in 
 the apprehension of any person charged with any of 
 the following offences, viz., murder, feloniously and 
 maliciously shooting, &c., at any person, stabbing, 
 cutting, poisoning, administering anything to procure 
 
 (/) For punishment of assaults committed on officers and persons acting 
 in their aid, or on any other person lawfully authorized to apprehend or 
 detain an offender, v, p. 184-. 
 
312 
 
 AEKEST. 
 
 miscarriage, rape, burglary or felonious housebreaking, 
 robbery from tbe person, arson, horse, bullock (includ- 
 ing ox, cow, &c.), or sheep-stealing ; or with being 
 accessory before the fact to any of the offences afore- 
 said ; or with receiving stolen property knowing the 
 same to have been stolen, the court is authorized to 
 order the sheriff to pay to • such person such sum of 
 money as it thinks proper to compensate for his ex- 
 pense, exertion, and loss of time in the apprehension. 
 This reward is to be over and above the ordinary pay- 
 ments to prosecutors and witnesses (g). By a later 
 Rewards statute, at the sessions the court may order such com- 
 
 pensation to be paid in case of any of the above offences 
 which they have jurisdiction to try ; but the payment 
 to one person must not exceed £5 (h). If any one is 
 killed in endeavouring to apprehend a person charged 
 with one of these offences, the court may order com- 
 pensation to be made to the family (i). The amount 
 to be paid in all such cases is subject to regulations 
 which may be made from time to time by the secretary 
 of state (k). 
 
 allowed at 
 sessions. 
 
 ((/) 7 Geo. 4, c. 64, s. 28. 
 (A) 14 & 15 Vict. c. 55, s. 8. 
 (0 7 Geo. 4, c. 64, s. 30. 
 (/;) 14 & 15 Vict. c. 55, s. 5. 
 
( 313 ) 
 
 CHAPTEE IV. 
 
 PROCEEDINGS BEFORE THE MAGISTRATE. 
 
 "When an arrest has been made the accused should be Accused to be 
 taken before a magistrate or magistrates with all the magistrate. 
 reasonably possible speed. When arrested on suspicion 
 he should not be detained before he is so taken, in 
 order that evidence may first be collected. 
 
 The magistrate is bound to forthwith examine into Proceedings 
 the circumstances of the charge. In order to secure magistrat^e. 
 the attendance of witnesses to the fact, they may be 
 served with a summons or warrant in a manner similar 
 to that in which the presence of the accused is insured. 
 If a witness refuses to be examined, he is liable to im- 
 prisonment for seven days (T). The room in which the 
 examination is held is not to be deemed an open court ; 
 and the magistrate may exclude any person if he 
 thinks fit (m). When the witnesses are in attendance, 
 the magistrate takes, in the presence of the accused, 
 (who is at liberty by himself or his counsel to put 
 questions to any witness produced against him), the 
 statement on oath or affirmation of those who know the 
 facts of the case, and puts the same in writing. These The deposi- 
 statements (technically termed depositions) are then ''°°^' 
 read over to and signed respectively by the witnesses 
 who have been examined, and by the magistrate taking 
 such statements (n). The magistrate reads, or causes 
 
 (Q 11 & 12 Vict. c. 42, 5. 16. As this is the chief Act dealing with the 
 subject of this chapter, reference merely to a section must be understood of 
 that statute. 
 
 (m) s. 19. 
 
 (n) s. 17. 
 
314 
 
 PBOCEEDINGS BEFORE THE MAGISTKATE. 
 
 Witnesses for 
 the accused.- 
 
 Binding over 
 tlie witnesses. 
 
 Bemand. 
 
 to be read OTer to the accused these depositions ; and 
 asks him if he wishes to say anything in answer to the 
 charge ; cautioning him that he is not obliged to say 
 anything, but that whatever he does say will be taken 
 down in writing, and may be used in evidence against 
 him at his trial ; at the same time explaining that he 
 has nothing to hope from any threat which may have 
 been holden out to him to induce him to make any 
 admission or confession of guilt. Whatever the accused 
 then says is taken down in writing, and signed by the 
 magistrate (o). 
 
 The magistrate then asks the accused whether he 
 desires to call any witnesses. If he does, the magis- 
 trate, in the presence of the accused, takes their state- 
 ment on o^th or affirmation, whether such statement is 
 given on examination or cross-examination, for they 
 may be submitted to both. These statements, in the 
 same way as those on the part of the prosecution, are 
 read to and signed by the witnesses and by the magis- 
 trate. And the same rules apply to witnesses both for 
 the prosecution and for the defence (other than those 
 merely to character), as to being bound over by recog- 
 nizance to appear and give evidence at the trial (p). 
 If a witness refuses to enter into such recognizance, he 
 may be committed to prison until the trial. The re- 
 cognizances, depositions, &c., are transmitted to the 
 court in which the trial is to take place (^). 
 
 If the investigation before the magistrate cannot be 
 completed at a single hearing, he may from time to 
 time remand the accused to gaol for any period not 
 exceeding eight days ; or may allow him his liberty in 
 the interval upon his entering into recognizances, with 
 or without sureties, for re-appearance (r). 
 
 (o) s. 18. 
 
 (p) 30 & 31 Vict. i;. 35, 
 
 (?) 5. 20. 
 
 (r) 8. 21.. 
 
PROCEEDINGS BEFOBE THE MAGISTRATE. 315 
 
 If, when all the evidence against the accused has Discharge. 
 been heard, the magistrate does not think that it is 
 sufficient to put the accused on his trial for an indict- 
 able offence, he is forthwith discharged. But if he Committal 
 thinks otherwise, or the evidence raises a strong or 
 probable presumption against the accused, he commits 
 him for trial, either at once sending him to gaol so as 
 to be forthcoming for trial, or admitting him to bail (s). 
 Under certain circumstances a third course is open to 
 the magistrate ; he may dispose of the ease and punish 
 the offender himself (<). 
 
 It will be noticed that there are two forms of com- The accused 
 
 / \ /. /» .7 n \ ' committed 
 
 mitment to prison : (a) for safe custody ; (b) m execu- f^^. ^^■^^l_ 
 tion, either as an original punishment, or as a means of 
 enforcing payment of a pecuniary fine, or of enforcing 
 obedience to the sentence or order of a magistrate or 
 the sessions. The warrant of commitment under the 
 hand and seal of the committing magistrate, directed 
 to the gaoler, contains a concise statement of the cause 
 of commitment. By the Habeas Corpus Act (u) the 
 gaoler is required, under heavy penalties, to deliver 
 to the prisoner, or other person on his behalf, a copy 
 of the warrant of commitment or detainer within six 
 hours after demand. The imprisonment of which we Imprisonment 
 are now speaking is merely for safe custody and not P™ '"^ 
 for punishment ; therefore, those imprisoned are treated 
 with much less rigour than those who have been con- 
 victed. Thus, they may have sent to them food, 
 clothing, &c., subject to examination and the rules 
 made by the visiting magistrates. They have the 
 option of employment, but are not compelled to perform 
 any hard labour ; and if they choose to be employed, 
 and are acquitted, or no bill is found against them, an 
 allowance is paid for the work (x). 
 
 (s) s. 25. 
 
 (i) V. p. 458. 
 
 (m) 31 Car. 2, c. 2, s. 5. 
 
 (i) 28 & 29 Vict. c. 126, sched. i. ss. 19, 20, 32, 33. 
 
316 PEOOEBDINGS BEFOEB THE MAGISTEATE. 
 
 .) 
 
 Bail. Bail. — This admitting to bail consists in the delivery 
 
 (or bailment) of a person to his sureties, on their giving 
 security (he also entering into his own recognizances) 
 for his appearance at the time and place of trial, there 
 to surrender and take his trial. In the meantime, he 
 is allowed to be at large ; being supposed to remain in 
 their friendly custody. 
 
 We shall, in the first place, treat of the law of bail 
 by the magistrate, and then of bail by the Queen's 
 Bench Division and other exceptional cases. 
 
 In what cases In what cases may, and in what cases may not a 
 m^Tafi™'^ magistrate take bail ? Not if the prisoner is accused 
 of treason. In that case it is allowed only by order of 
 a secretary of state, or by the Queen's Bench Division, 
 or a judge thereof in vacation. If the prisoner is, 
 charged with some other felony, or one of the mis- 
 demeanors enumerated below, the magistrate may, in 
 his discretion, but is not obliged to, admit to bail. 
 These misdemeanors are : — Obtaining, or attempting to 
 obtain, property by false pretences ; receiving property 
 stolen or obtained by false pretences ; perjury or sub- 
 ornation of perjury ; concealing the birth of a child by 
 secret burying or otherwise ; wilful or indecent expo- 
 sure of the person ; riot ; assault in pursuance of a 
 conspiracy to raise wages ; assault upon a peace officer 
 in the execution of his duty or upon any person acting 
 in his aid ; neglect or breach of duty as a peace officer, 
 or any misdemeanor for the prosecution of which the 
 costs may be allowed out of the county rate. In other 
 misdemeanors it is imperative on the magistrate to 
 admit to bail («/). 
 
 Principles In cases where, in the exercise of their discretion, the 
 
 trafes%'hef '" ^^gis*^**®^ ^^"^^ *^^ power of admitting to bail or 
 they may refusing it, the principle which is to guide them is the 
 
 exercise their 
 
 discretion as 
 to bail. 
 
 (I/) s. 23. 
 
PROCEEDINGS BEFORE THE MAGISTRATE. 317 
 
 probability of the accused appearing to take his trial, 
 and not his supposed guilt or innocence (z). Though 
 this latter point may be one element to be considered 
 in applying the test. Thus it has been laid down that 
 the points which the court will consider in exercising 
 their discretion include the seriousness of the charge, 
 the evidence in support of it, and the punishment which 
 the law awards for the offence (a). Practically in 
 charges of murder, bail is never allowed. And when a 
 bill has been found against the accused, naturally more 
 caution will be exercised. 
 
 Who may be bail ? The magistrate (or court, v. The sureties. 
 infra) will act according to his discretion as to the 
 sufficiency of the bail. The proposed bail may be exa- 
 mined upon oath as to their means, though in criminal 
 cases no justification of bail is required. A married 
 woman, an infant, or a prisoner in custody, cannot be 
 bail ; nor can a person who has been convicted of an 
 infamous crime, as perjury (J). The usual number of 
 bail is two ; but sometimes only one is required, and 
 sometimes three or more. The sureties or bail are not 
 compelled to act as such for a longer time than they 
 wish. If they surrender the accused before the magis- 
 trate or court by whom he has been bailed, he will be 
 committed to prison, and they will be discharged of 
 their obligation. But the accused may then find fresh 
 sureties. 
 
 Both at common law and by statute (c), to refuse or Refusing or 
 delay to bail any person bailable is a misdemeanor in '^«'*y'''g i^^''- 
 the magistrate. But it has been held that the duty 
 of a magistrate in respect of admitting to bail is a 
 
 (z) M. V. Scaife, 5 Jur. 700. 
 
 (a) In re Barronet, 22 L. J. (M.C.) 25 ; In re Robinson, 23 L. J. (Q.B.) 
 286. 
 
 (b) r. S. V. Edwards, 4 T. R. 440. 
 
 (c) 3 Edw. 1, c. 15 ; 31 Car. 2, u. 2 (Habeas Corpus) ; 1 Wm. & M. st 2 
 <j. 1 (Bill of Rights). ' 
 
318 PROCEEDINGS BEFORE THE MAGISTRATE. 
 
 judicial duty ; and therefore that not even an action can 
 be maintained against him for refusing to admit to bail, 
 where the matter is one as to which he may exercise 
 his discretion {d). It is provided by the Bill of Eights 
 Excessive bail, that excessivo bail ought not to be required ; though 
 what is excessive must be left to be determined by the 
 court in considering the circumstances of the case. If 
 the magistrate or other authority admits to bail where 
 this is not allowable, or if he takes insufficient bail, he 
 is liable to punishment on the non-appearance of the 
 accused (e). 
 
 Bail after The stage in the proceedings where the question of 
 
 for"ti-iar' bail usually arises is when the accused is before the 
 magistrates. But when a person charged with an 
 indictable offence has been committed to prison to await 
 his trial, it ia lawful at any time afterwards, before the 
 first day of the sessions or assizes at which he' is to be 
 tried, for the magistrate who signed the warrant for 
 his commitment to admit him to bail (/). 
 
 As to bail in other cases than in proceedings before 
 the magistrates : — • 
 
 Bail by The Queen's Bench Division, or, in vacation time, a 
 
 w'Ts^on^^"'^'' judge thereof {g), has a discretionary power of admitting 
 to bail a prisoner charged with any indictable offence, or 
 on suspicion thereof; and this whether he is brought 
 before the court by a writ of habeas corpus or otherwise. 
 It may bail as well in cases where bail has been refused 
 by the magistrate, as when the charge has been origi- 
 nally brought before the Division. It may order the 
 accused to be admitted to bail before a magistrate 
 wlien it is inconvenient to bring him and his bail up to 
 town. 
 
 (,i) Linfo.d V. FiUroy, 18 L. J. (M.C.) 108; M. v. £ad[/er, 12 L. J. 
 (1I.C.)66. 
 
 (c) Hal. Sum. 97. 
 
 (//) 11 & 12 Vict. c. 42, =. 23. 
 
 (ly) I & 2 Vi<-t. >,. 4'.. 
 
PROCEEDINGS BEFOEE THE MAaiSTEATE. 319 
 
 It seems to be a good general rule that so far as any Bail by judi- 
 persons are judges of any crime, so far they have the "* 
 power of bailing a person indicted before them of such 
 crime Qi) : so that :— 
 
 Justices in Sessions may bail persons indicted at the 
 sessions. 
 
 Judges of Oaol Delivery, &c., may bail those indicted 
 at the assizes or Central Criminal Court when they are 
 sitting. If one accused of treason or felony is not tried 
 at the first sessions of gaol delivery after commitment, 
 he may demand to be released or bailed, unless it 
 appears on oath that the witnesses for the prosecution 
 could not be present at those sessions. If he is not 
 tried at the second sessions, he must be discharged 
 from imprisonment (i). 
 
 Coroners are authorized to admit to bail persons 
 charged with manslaughter by verdict of the coroner's 
 jury (Jc). 
 
 It may be noticed here that at any time between the The accused 
 conclusion of the examination before the magistrate ™ ^^^^ oFthe 
 and the first day of the trial at the assizes or sessions, depositions. 
 the accused, whether held to bail or committed to 
 prison for trial, may have on demand copies of the 
 examination of the witnesses upon whose depositions he 
 has been so held to bail or committed, on payment of a 
 reasonable sum for the same, not exceeding three half- 
 pence for each folio of ninety words (T). And at the 
 time of trial he may inspect the depositions without any 
 fee (m). The same rules apply also to depositions on 
 behalf of the prisoner (m). 
 
 (A) 2 Hawk. c. 15, s. 54. 
 
 (0 31 Car. 2, c. 2, s. 7. 
 
 (A) 22 Vict. c. 33, s. 1. As to personating bail, v. p. 236. 
 
 (0 6 & 7 Wm. i, c. 114, s. 3 ; 11 & 12 Vict. u. 42. s. 27. 
 
 (m) 6 & 7 Wm. 4, c. 114, s. 4. 
 
 («) 30 & 31 Vict. c. 35, s. 4. 
 
320 
 
 PROCEEDINGS BEFOBE THE MAGISTKATE. 
 
 Delivery of 
 recognizances, 
 &c., to the 
 court. 
 
 The recognizances whereby the prosecutor and wit- 
 nesses are bound over to appear at the trial, together 
 with the written information (if any) ; the depositions ; 
 the statement of the accused ; the recognizances of bail 
 (if any) ; are to be delivered to the proper officer of the 
 court where the trial is'to be had (o). 
 
 (o) 11 & 12 Vict. c. 42, s. 20 ; 30 & 31 Vict. u. 35, ». 3, 
 
( 321 ) 
 
 CHAPTEE V. 
 
 MODES OF PEOSECUTION. 
 
 The accused lias either been committed to prison for Modes of 
 safe custody, or has been left at liberty in virtue of his P™secution. 
 having found sureties for his appearance. The next 
 point to be considered is the prosecution (p), or manner 
 of formal accusation. This may be either (q) : — 
 
 A. Upon a previous finding of the fact by an 
 
 inquest or grand jury. 
 
 B. Without such previous finding. 
 
 A. The most usual mode is by indictment, though After a finding 
 it will be necessary in the first place to say a few ^^ ''"^ ^''^"'^ 
 words on — 
 
 Presmtment.— This term, taken in a wide sense, Presentment, 
 includes both indictments by a grand jury and inquisi- 
 tions of office. In a narrow sense it refers to the former 
 only, and is the notice taken by a grand jury of any 
 matter or offence from their own knowledge or observa- 
 tions, without any bill of indictment laid before them 
 at the suit of the Crown, as the presentment of a 
 libel, &c , upon which the officer of the court must 
 afterwards frame an indictment before the party prose- 
 cuted can be put to answer it (r). So that it differs from 
 
 (p) In-a wide sense tlie term "prosecution" is applied to tlie wliolc of 
 tlie proceedings for bringing tlie offender to justice, 
 (r?) 4 Bl. 301. 
 (/•) Ibid. 
 
322 MODES OP PROSECUTION. 
 
 the ordinary proceedings merely inasmuch as no bill is 
 deliyered by an individual prosecutor, but the grand 
 jury initiate the proceedings. 
 
 Inquisition. ^^ Inquisition of office is the act of a jury summoned 
 
 to inquire of matters relating to the Crown upon evi- 
 dence laid before them. The most common kind of 
 inquisition is that of the coroner, which is held with a 
 view to find out the cause of death. The accused is 
 arraigned upon the inquisition (s). 
 
 Indictment, 
 when it lies. 
 
 An Indictment is a written accusation of one or more 
 persons of a crime, preferred to, and presented on oath 
 by, a grand jury. It lies for all treasons and felonies, 
 for misprisions of either, and for all misdemeanors of a 
 public nature at common law (t). If a statute pro- 
 hibits a matter of public grievance, or commands a 
 matter of public convenience (such as the repairing of 
 highways, or the like), all acts or omissions contrary 
 to the prohibition or command of the statute, being 
 misdemeanors at common law, are punishable by indict- 
 ment if the statute specifies no other mode of pro- 
 ceeding (u). If the statute specifies a mode of pro- 
 ceeding different from that by indictment, then, if the 
 matter was already an indictable ofience at common 
 law, and the statute introduces merely a different mode 
 of prosecution and punishment, the remedy is cumu- 
 lative, and the prosecutor has still the option of pro- 
 ceeding by indictment at common law, or by the mode 
 pointed out by the statute (x). 
 
 Indictment, 
 its form. 
 
 We shall presently deal with the preferment of an 
 indictment to the grand jury; but first we must 
 examine into the nature of such form of accusation. 
 
 (s) V. p. 334. 
 
 (0 2 Hawk. c. 25, s. 4. 
 
 (m) Ibid. 
 
 (jj) S. V. Bubinson, 2 Burr. 799. 
 
MODES OF PROSEOTFTION. 
 
 323 
 
 An.d for this purpose it will lie well to give an example 
 of an indictment, say for larceny at common law : — 
 
 "Suffolk, to wit: The jurors for our lady the Queen 
 upon their oath present that ^ John Styles, on 
 the 1st day of June, in the year of our Lord 
 1876, three pairs of shoes, and one waistcoat, of 
 the goods and chattels of John Br own, feloniously 
 did steal, take, and carry away ; IT against the 
 peace of ou/r lady the Queen, her crown and 
 dignity." 
 
 Three parts, marked off in the above form, are to be 
 distinguished : (a) the Commencement ; (b) the State- 
 ment ; (c) the Conclusion. 
 
 (a.) The Commencement. — In this the only part which Thecommence- 
 requires comment is the venue, or the statement of the j^dLtment. 
 county or other division from which the grand jury by 
 whom ^the indictment was found have come. In other 
 words, it is the index of the place where, in regular 
 course, the trial is to be had (y). The consideration of 
 this matter will be reserved for a separate chapter. 
 
 (b.) The Statement. — This, the principal part of the The statement. 
 indictment, must set forth with certainty all the facts 
 and circumstances essential to constitute the crime; 
 and must directly charge the accused with having com- 
 mitted it. 
 
 The defendant's name must be given correctly ; or if Name of 
 it is not known, he must be described as a person un- •^^f'^^'i^n'- 
 known. So also with regard to the name of the person 
 against whom the crime has been committed. 
 
 The ownership of any property in respect of which Ownership of 
 the offence was committed must be rightly laid. The P^'^P^'^y- 
 
 (y) V. 14 & 15 Vict. c. 100, s. 23. 
 
 y 2 
 
324 MODES OF PKOSECTJTION. 
 
 property in goods (a) of a deceased person must be laid 
 in the executors or administrators; (b) of a married 
 woman in her husband, unless there is separate pro- 
 perty under the Married "Women's Property Act, 
 1870 (z), or there has been a judicial separation, or a 
 protection order (a). If" the goods belong to partners 
 or joint owners, one only need be named, and " another " 
 or " others " added, as the case may be (b). So pro- 
 perty vested in a body of persons must not be described 
 as the property of the body, but of all or some indivi- 
 duals of the body, unless it is incorporated. The pro- 
 perty of joint-stock banking co-partnerships may be 
 laid in any one of the public officers (c). Bridges, 
 asylums, &c., must be described as the property of the 
 inhabitants of the county, without specifying any 
 names. If goods are stolen, &c., from a bailee, they 
 should be described as the property either of the bailor 
 or of the bailee, unless they were stolen by the bailor 
 himself. If at the trial it appears that the property 
 has been incorrectly laid, or the person against whom 
 the offence was committed misnamed, unless such error 
 be amended, the defendant must be acq[uitted. But, 
 as we shall see (d), the court has extensive powers of 
 ordering amendment in case of such variance between 
 the indictment and the evidence. 
 
 Time of oifence. As to the statement of time. — No indictment will be 
 held insufficient because it omits to state the time at 
 which the offence was committed in any case where 
 time is not of the essence of the offence ; nor because 
 it states the time imperfectly, or states the offence to 
 have been committed on a day subsequent to the find- 
 ing of the indictment, or on an impossible day, or on a 
 
 («) 33 & 34 Vict. 0. 93, see s. 11. 
 (o) 20 & 21 Vict. c. 85, ss. 21, 25. 
 (6) 7 Geo. 4, ^. 64, ». 14. 
 (c) Ibid. s. 9. 
 Id) V. p. 3^6. 
 
MODES OF PHOSECUTION. 
 
 325 
 
 day that never happened (e). The time is of import- 
 ance in seyeral crimes, as in murder, bigamy, and 
 burglary, and in cases where the time within which 
 the 'prosecution must be commenced is limited. 
 
 As io jplaee. — The nature of the crime in some cases Place of offence. 
 requires this to be stated ; otherwise the venue in the 
 margin, that is, the county or other division, is taken as 
 the venue for all facts in the indictment (/). The 
 following are the most common cases in which a local 
 description is required : burglary, housebreaking, steal- 
 ing in a dwelling-house, sacrilege, nuisances to high- 
 ways, &c. 
 
 The facts, circumstances, and intent, which are the Description of 
 ingredients of the offence, must be given with certainty, '"''^' *"■ 
 so that the defendant may be able to perceive what 
 charge he has to meet, the court may know what 
 sentence should be given, and that on future reference 
 to the conviction or acquittal it may be known exactly 
 what was the alleged offence {g). In indictments for Technical 
 certain crimes particular technical words must be used, ^°be^'„se[j'^° 
 namely, in murder, murdravit ; in rape, rapuit ^ in 
 larceny, felonice cejoit ei asportavit. Again, as to the 
 intent, treason must be laid to have been done " trai- 
 torously;" a felony, "feloniously;" burglary, "felo- 
 niously and burglariously ;" murder, " feloniously and 
 of his malice aforethought." 
 
 If any essential ingredient of the offence is omitted. Consequences 
 or not stated with sufficient certainty, the defendant "' defects. 
 may move to quash the indictment, or may demur, or, 
 if the defect is not one which is cured by verdict Qi), 
 he may move in arrest of judgment, or bring a writ of 
 error. All objections to formal defects must be taken 
 
 (e) 14 & 15 Vict. ^. 100, s. 24. 
 (/) Ibid. s. 23. 
 0;) Arcli. 54. 
 
 (A) As to what defects are cured by verdict, see Hcymann v. R., L. R. 
 8 Q. B. 102. 
 
326 MODES OF PBOSEOUTION. 
 
 before the jury are sworn ; and they may then be 
 amended by the court (i). 
 
 Amendment The law as to the amendment of defects in the indict- 
 of defects. ment is now on a much more reasonable footing than it 
 was at one time. Instead of requiring the evidence 
 rigorously and servilely to correspond with the indict- 
 ment as it stands when drawn up, extensive powers of 
 amendment are given to the court. Whenever there is 
 a variance in certain points between the indictment 
 and the evidence, it is lawful for the court before which 
 the trial is had, if it considers that the variance is not 
 material to the merits of the case, and that the defen- 
 dant cannot be prejudiced thereby in his defence on 
 such merits, to order the indictment to be amended on 
 such terms as to postponing the trial, as the court 
 thinks reasonable. The points mentioned in the 
 statute are the following: (a) in the name of any 
 county, riding, division, city, borough, town corporate, 
 parish, township, or place mentioned or described in 
 such indictment ; or (b) in the name or description of 
 any person or persons, or body politic or corporate, 
 therein stated or alleged to be the owner or owners of 
 any property, real or personal, which shall form the 
 subject of any offence charged therein; or (c) in the 
 name or description of any person or persons, body 
 politic or corporate, therein stated or alleged to be 
 injwred or damaged, or intended to be injured or 
 damaged, by the commission of such offence ; or (d) in 
 the Christian name or surname, or both Christian name 
 and surname, or other description whatsoever, of any 
 person or person whomsoever therein named or de- 
 scribed J or (e) in the name or description of any 
 matter or thing whatsoever therein named or described ; 
 or (f) in the ownership of any property named or 
 described therein (Jc). But in no case will an amend- 
 
 (0 14 & 15 Vict. c. 100, s. 25. 
 (Ji) Ibid. s. 1. 
 
MODES OF PROSECUTION. 
 
 327 
 
 ment which alters the nature or quality of the offence 
 be allowed (1). The amendment must be made before 
 verdict; and when it is once made there can be no 
 amending the amendment, or reverting to the indict- 
 ment in its original form. 
 
 (c.) The Conclusion. — The conclusion given in the The conclusion 
 foregoing example of an indictment is that which ^^^j° ''"^"''' 
 occurs in an indictment for an offence at common law. 
 An indictment for an offence created by statute con- 
 cludes thus : " against the form of the statute in such 
 case made and provided, and against the peace, &c." 
 But an error in the form of the conclusion is not now 
 material, inasmuch as it has been enacted that no in- 
 dictment shall be held insufficient 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 ; nor 
 for want of a proper or formal conclusion (m). 
 
 Counts. — An indictment very frequently contains Counts, when 
 more than one count or charge. The object of the in- inserted '^'^ """^ 
 sertion of more than one count is either to charge the 
 defendant with different offences, or with a previous 
 conviction ; or to describe the single offence in other 
 terms, so that proof of one description failing, he may 
 be convicted under another. Thus, an indictment for 
 wounding generally contains a count for doing grievous 
 bodily harm. Again, an indictment for obtaining goods 
 by false pretences must state the false pretence cor- 
 rectly ; therefore, in order to prevent a failure of 
 
 (0 R. y. Wright, 2 F. & F. 320. 
 
 (m) 14 & 15 Vict. c. 100, s. 24. The same section also provides that no 
 indictment shall be insufficient for want of the averment of any matter 
 unnecessary to be proved, nor for the omission of the words " as appears 
 by the record," nor for that any person is designated by a name of office or 
 other descriptive appellation, instead of his proper name ; nor for want of, 
 or imperfection in, the addition of any defendant ; nor for the want of the 
 statement of the value or price of any matter or thing, or of 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. 
 
328 MODES OF PEOSEOUTION. 
 
 justice in consequence of the false pretence not being 
 properly stated, it is often necessary to insert different 
 counts laying the pretence in different ways. The 
 different counts are tacked on hy the insertion of " and 
 the jurors aforesaid, upon their oath aforesaid, do say, 
 that, &c." 
 
 Charging more As a rule, more than one offence cannot he charged 
 fence ^n\hl' ^^ ^^^ Same couut. This is commonly expressed by 
 same count, saying that a count must not be doubk, or is had for 
 duflieity. Thus one count cannot charge the prisoner 
 with having committed a murder and a robbery. There 
 are two exceptions to the rule : An indictment for 
 burglary usually charges the defendant with having 
 broken and entered the house with intent to commit a 
 felony, and also with having committed the felony in- 
 tended. And in indictments for embezzlement by 
 clerks, or servants, or persons employed in the public 
 service, or in the police, the prosecution may charge 
 any number of distinct acts of embezzlement, not ex- 
 ceeding three, which may have been committed against 
 the same master within six months inclusive («). But 
 even here it is usual to charge the different acts in 
 different counts. 
 
 Charging dif- So much for charging different offences in one count. 
 in^ different" ■'•* remains to be seen what are the rules as to charging 
 counts, a defendant with different offences in different counts 
 
 of the same indictment : — 
 
 in treason, In an indictment for treason, there may be different 
 
 counts, each charging the defendant with different 
 species of treason ; for example, compassing the Queen's 
 death; levying war, &c. 
 
 in felony. In an indictment ion: felony, there is no objection in 
 
 point of law to charging several different felonies in 
 
 (») 24 & 25 Vict. c. 96, =. 71 ; see also s. 5. 
 
MODES OF PEOSEOUTION. 329 
 
 different counts, whetlier such felonies be of a different 
 character or distinct cases of the same sort of felony ; 
 for example, whether they be a burglary and a murder, 
 or two cases of murder. But in 'practice, as this course 
 would embarrass the prisoner in his defence, it is not 
 adopted, and it will be ground for quashing the indict- 
 ment, though not for demurrer or arrest of judgment. 
 If it is discovered, before the jury are charged, that it 
 has been done, the judge may quash the indictment ; 
 if after, he may put the prosecutor to his election on 
 which charge he will proceed. The same felony may, 
 however, be charged in different ways in different 
 counts ; as if there is a doubt whether the goods stolen 
 are the property of A. or of B., they may be stated in 
 one count as the goods of A., in another as the goods of 
 B. There are certain exceptions to the rule forbidding 
 the charging of distinct- felonies in different counts. 
 In an indictment for feloniously stealing any property, 
 it is expressly declared lawful to add a count or several 
 counts for feloniously receiving the same property, 
 knowing it to have been stolen, and vice versa ; and the 
 prosecutor is not put to any election, but the jury may 
 find a verdict of guilty on either count, against all or 
 any of the persons charged (o). Also, in an indictment 
 for larceny, it is lawful to insert several counts 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 calendar months from the first to the last 
 of such acts, and to proceed thereon for all or any of 
 them (p). We have already noticed a similar rule with 
 regard to embezzlement (cj). 
 
 If a count for a felony is joined with a count for a Joinder of ;i 
 misdemeanor, the indictment will be held bad. if de- mlsdJmeanon 
 
 (o) 24 & 25 Vict. u. 96, ». 92. 
 ( p) Ibid. s. 5. 
 (j) V. p. 328. 
 
330 
 
 MODES OF PKOSECUTION. 
 
 murred to, or judgment may be arrested if tte verdict 
 has been general {i.e., guilty, or not guilty on the 
 ■whole indictment), but not if the prisoner is convicted 
 of the felony alone (r). 
 
 Charging dif- 
 ferent mis- 
 demeanors in 
 different 
 counts. 
 
 An indictment for misdemeanor may contain several 
 counts for different offences, even though the judgments 
 upon each be different, so that the legal character of 
 the substantive offences charged be the same (s). Thus, 
 evidence of several assaults or several libels will be 
 received on the several counts of the same indictment. 
 But there are limits, not precisely defined, to this rule ; 
 when convenience and justice demands it, the judge 
 compelling the prosecution to elect upon which charge 
 they will proceed.. In all cases of this character, the 
 important consideration is, whether all the acts were 
 substantially one transaction. 
 
 Previous con- 
 viction, when 
 count for. 
 
 In certain cases if the prisoner has been -previously 
 convicted, a count is inserted in the indictment charging 
 him with such previous conviction. He will have to 
 plead to this, and proof may be given, if he denies it, 
 as on any other count. The object of putting in this 
 count is that the prisoner may have his identity with 
 the person so previously convicted proved before the 
 severer punishment consequent on a previous conviction 
 is awarded. The cases in which such a count may be 
 inserted are indictments for (a) felonies (not misde- 
 meanors) mentioned in the Larceny Act (<), or (b) for 
 offences under the Coinage Act, provided that the pre- 
 vious conviction be for some offence against that or 
 some other coinage Act (m). 
 
 (r) R. V. Ferguson, 24 L. J. (M.C.) 61. 
 
 (s) V. Younq v. B., 3 T. E. 105. 
 
 (Q 24 & 25 Vict. c. 96, =. 116. 
 
 (m) 24 & 25 Vict. c. 99, s. 37. 27 & 28 Vict. c. 47, ». 2, seems to imply 
 that a count for previous conviction of felony may be inserted in an indict- 
 jneut for any crime punishable with penal servitude. Rose. 190. 
 
MODES OF PKOSEOUTION. 
 
 331 
 
 It should be noticed that in some cases the necessity Verdict of 
 for adding a second count, or preferring a second in- £\\°f "' 
 dictment is obviated by the power which is given to charged in the 
 the jury to find the defendant guilty of certain other '" "^ """" ' 
 offences than those named in the indictment (as). 
 
 As to the joinder of two or more defendants in one joinder of 
 indictment. — When several persons take part in the 'l<=*'™'l«"*s. 
 commission of an offence, they may all be indicted 
 together, or any number of them together, or each 
 separately ; and, of course, some may be convicted and 
 others acquitted. But certain offences do not admit 
 of a joint commission, for example, perjury. This 
 joinder of defendants may be made the subject of de- 
 murrer, motion in arrest of judgment, or writ of error ; 
 or the court will in general quash the indictment. 
 
 As a rule, there is no time limited after the commis- Cases in which 
 sion of a crime within which the indictment must be ""^ time for 
 
 prosecution is 
 
 preferred. The offender is continually liable to be ap- limited. 
 prehended and visited with the penalties of the criminal 
 law. By particular statutes, however, there are excep- 
 tions to this rule; a stated time being fixed after 
 which criminal proceedings cannot be commenced. The 
 chief cases, times, and the statutes regulating them, 
 are the following : — 
 
 Treason, in general, if committed in Great Britain, 
 three years, 7 & 8 Wm. 3, c. 3, s. 5. 
 
 Training to arms and military practice, six months, 
 60 Geo. 3 & 1 Geo. 4, c. 1, s. 7. 
 
 Gaming offences under the statute, twelve months, 
 9 Geo. 4, c. 69, s. 4. 
 
 Offences under the Customs Act, three years, 16 & 
 
 17 Vict. c. 107, s. 303. 
 
 Bribery at parliamentary elections, one year, 17 & 
 
 18 Yict. c. 102, s. 14 ; 26 Vict. c. 29, s. 5. 
 
 Qc) V. p. 425. 
 
332 
 
 MODES OF PBOSECUTION. 
 
 Indictment 
 drawn up and 
 indorsed. 
 
 Indictments or informations upon any statute penal, 
 whereby the forfeiture is limited to the Sovereign, two 
 years, 31 Eliz. c. 5. 
 
 The above where the forfeiture is limited to the 
 Sovereign and prosecutor, one year, 31 Eliz. c. 5. 
 
 The indictment is usually drawn up by an officer of 
 the court ; the clerk of arraigns or the clerk of indict- 
 ments at the assizes, the clerk of the peace at the 
 sessions ; but in cases of difficulty the assistance of 
 counsel is obtained. On the indictment are indorsed 
 the names of the witnesses intended to be examined 
 before the grand jury. Here we must leave it for a 
 time, merely adding that of course any number of in- 
 dictments may be preferred against the same person at 
 the same time for distinct offences. 
 
 Information, 
 definition of. 
 
 Information ex 
 officio. 
 
 B. Information. 
 
 A criminal information is a complaint by the Crown 
 in the Queen's Bench Division in respect of some offence, 
 not a felony, whereby the offender is brought to trial 
 without the previous finding iy a grand jury (y). 
 
 These criminal informations are of two kinds : — 
 i. Informations ex officio. 
 ii. Informations by the Master of the Crown Office. 
 
 i. An information ex officio is a formal written sug- 
 
 (j/) The term " information " is also used of (i.) the charge made to a 
 magistrate of some offence punishable on summary conviction, (ii.) A 
 complaint by one who is taking proceedings to recover a penalty, as where 
 a statute awards a pecuniary penalty upon conviction for a given offence, 
 and ii judicial proceeding is instituted against some offender to recover 
 the penalty. Inasmuch as the penalty is generally divided between the 
 sovereign and the informer, qui tarn pro domind regind, quam pro se ipso, 
 sequitur, they are termed qui tarn actions, (iii.) A complaint of the Crown 
 in the Chancery or Exchequer Division in respect of some civil claim, 
 (iv.) An information 5110 warranto is a remedy in the Queen's Bench 
 Division given to the Crown against such as have usurped or intruded 
 into any office or franchise. 
 
MODES OF PKOSECUTION. 333 
 
 gestion of an offence, filed by the Attorney-General in 
 the Queen's Bench Division. It lies for misdemeanors 
 only ; for in treason and other felonies it is the policy 
 of the English law that a man should not be put upon 
 his trial until the necessity for that course has been 
 shewn by the oath of the grand jury. The reason for 
 the exceptional proceeding without the grand jury is 
 that some cases will not admit of the delay involved in 
 the usual course of events. Thus, the proper objects 
 of this kind of information are such enormous mis- 
 demeanors as peculiarly tend to disturb or endanger 
 the government, or to interfere with the course of 
 public justice, or to molest public officers ; for example, 
 seditious libels or riots, obstructing officers in the exe- 
 cution of their duties, bribery, &c., by magistrates or 
 officers (z). If the Attorney-General delays for twelve 
 months to bring the case on for trial, after due notice 
 the court may authorize the defendant to do so. An 
 information ex officio is in the following form : — 
 
 " Trinity Term, 25 Viet. 
 "Middlesex. — Be it remembered that Sir William 
 Atherton, Knight, Attorney- General of ow Sove- 
 reign Lady the Qiieen, who for ow said Lady 
 the Queen prosecutes in this behalf in his proper 
 person comes into the court of ow said Lady the 
 Queen before the Queen herself at Westminster^ 
 in the county of Middlesex, on " &o., &e. (stating 
 the facts, &c., and concluding as in an indict- 
 ment.) 
 
 ii. Information by the Master of the Crown Office.— Information ty 
 A formal written suggestion of an offence, filed in the faster of the 
 
 vJrown (JrncG. 
 
 Queen's Bench Division at the instance of an individual, 
 by the Master of the Crown Office, without the inter- 
 vention of a grand jury. Here, a point in which this 
 differs from the former kind of information, the leave 
 
 (z) 4 Bl. 308. 
 
334 
 
 MODES OF PROSECUTION. 
 
 of the court has to be obtained. It lies only for mis- 
 demeanors, usually those of a gross and notorious 
 kind, which, on account of their magnitude or perni- 
 cious example, deserve the most public animadversion 
 (those peculiarly tending to disturb the government 
 being usually left to the Attorney-G-eneral as above), 
 for example, bribery at elections, aggravated libels, &c. 
 
 Proceedings on TJig coursc of proceedings IS the following : - An ap- 
 
 information by ,. ,. - -, j. i . i t 
 
 Master of the plicatiou IS made tor a rule to shew cause why a 
 Crown Office, criminal information should not be filed against the 
 party complained of. This application must be founded 
 upon an affidavit disclosing all the material facts of 
 the case. If the court grants a rule nisi, it is after- 
 wards, upon cause being shewn, discharged or made 
 absolute as in ordinary cases. 
 
 The form of this kind" of information is similar to 
 that of an information ex officio, substituting the name 
 of the Queen's coroner and attorney for that of the 
 Attorney-General. 
 
 Information, 
 how tried. 
 
 Coroner's 
 inquisition. 
 
 When a criminal information has been filed either 
 by the Attorney-General ex officio or by the Master of 
 the Crown Office, it must be tried in the usual manner 
 by a petty jury of the county where the offence arose. 
 For that purpose, unless the case is of such importance 
 as to call for a trial at bar, it is sent down by writ of 
 JVm Prius into that county and tried either by a com- 
 mon or special jury like a civil action. If the defendant 
 is found guilty, he must afterwards receive judgment 
 from the Queen's Bench Division (a). 
 
 Coroner's Inquisition (b). 
 
 A coroner's inquisition is the record of the finding 
 of the jury sworn to inquire, super visum corporis, con- 
 
 (a) 4 Bl. 308. 
 (6) V. p. 299. 
 
MODES OF PROSECUTION. 335 
 
 cerning the death. On this a person may be prosecuted 
 for murder or manslaughter without the intervention 
 of a grand jury, for the finding of the coroner's jury is 
 itself equivalent to the finding of a grand jury. The 
 defendant is arraigned on the inquisition as on an in- 
 dictment ; and the subsequent proceedings are the 
 same. The practice is, when a prisoner stands charged 
 on a coroner's inquisition with murder or manslaughter, 
 to take him before the magistrate and to prefer also an 
 indictment against him. Of course, he is tried both on 
 the inquisition and the indictment at the same time. 
 Thus, the sum of the whole matter is that the finding 
 of the coroner's jury and the inquisition are practically 
 disregarded and useless as far as criminal proceedings 
 are concerned. 
 
 The proceedings are shortly the following : — On re- Proceedings 
 ceiving due notice of the sudden or violent death, the coronei*'' 
 coroner issues his precept to the officers of the place 
 where the body lies dead, requiring them to summon a 
 jury (which must consist of twelve at least), and names 
 the time and place of inquiry. At the court the jury 
 are sworn, and then view the body. The witnesses are 
 examined on oath, and their evidence is put into writ- 
 ing by the coroner. He has authority to bind by 
 recognizance all material witnesses to appear at the 
 assizes to prosecute and give evidence ; and he must 
 certify and subscribe the evidence and all such recog- 
 nizances and the inquisition before him taken, and 
 deliver the same to the proper officer of the court in 
 which the trial is to be, before or at the opening of the 
 court (e). 
 
 The inquisition consists of three parts : the caption The inqnisi- 
 or incipitw, the verdict of the jury, and the attesta- *''"'• 
 tion {d). The rules as to certainty, description, &c.. 
 
 (c) 7 Geo. 4, c. 64, s. 4. 
 
 (d) For example, v. Arch. 126. 
 
336 
 
 MODES OP PEOSECUTION. 
 
 which prevail in the case of an indictment apply also 
 to an inquisition. 
 
 Committal for 
 trial by 
 coroner. 
 
 Proceedings 
 rarely other- 
 wise than by 
 indictment. 
 
 When the jury have returned a verdict of murder or 
 manslaughter against a person, the coroner must com- 
 mit him for trial, if present. If not in custody, the 
 coroner may issue a warrant for his apprehension, and 
 order him to be brought before himself or some magis- 
 trate of the jurisdiction (e). 
 
 From the foregoing inquiry we find that, apart from 
 proceedings by way of summary conviction, practically 
 the only modes of criminal procedure are by way of 
 indictment or information. Of these the former is 
 much the inore common ; and, unless anything be 
 stated to the contrary, it will be this mode that will be 
 kept in view in the succeeding pages (/). 
 
 (c) As to bail by coroners, t. p. 319. 
 
 (/) The old mode of trial by appe-il, involving a trial by battle, abolished 
 after Thornton's Case (1 B. & Aid. 405), by 59 Geo. 3, c. 46, may just be 
 mentioned. 
 
( 337 ) 
 
 CHAPTEE VI. 
 
 PLACE OF TRIAL. 
 
 We have already intimated (ff) that the venue in the Place of trial 
 indictment, or place from which the grand jury who "ounty^ &a, in 
 have found the bill have come, is also, in regular course, which the 
 the place where the trial is had. It is now neces- cominitted. 
 sary to ascertain what that place is. The general 
 common law rule is, that the venue should be the juris- 
 diction within which the offence was committed ; 
 whether such jurisdiction be a county, a division of a 
 county, a district including more than a county, as in 
 the case of the Central Criminal Court, or a borough. 
 To the general rule many exceptions have been made Exceptions. 
 by statute; and these we now proceed to enumerate 
 and classify : — 
 
 i. The venue may be laid in any county (/;) for the in any county. 
 following offences : — 
 
 Extortion (i). 
 
 Eesisting or assaulting officers of the excise (k). 
 
 Offences against the revenue of the customs (Z). 
 
 Endeavouring to seduce soldiers or sailors from their 
 duty, or inciting them to mutiny (m). 
 
 ii. The venue may be laid in the county where the in connty of 
 
 crime, or 
 
 where defen- 
 
 , ^ „no dant is appre- 
 
 ((/) V. p. 323. ^^^^^^ ^,^.^ 
 
 (A) By " county " in this chapter must be understood county, division of , , 
 
 county, district, or borough, as the case may be. ' •'' 
 
 (»■) V. 31 Eliz. c. 5, s. 4. 
 
 (/i) 7 & 8 Geo. 4, c. 53, s. 43. 
 
 (0 16 & 17 Vict. c. 107, s. 304. 
 
 (m) 37 Geo. 3, c. 70, s. 2 ; 57 Geo. B, c. 7. 
 
 Z 
 
338 PLACE OF TRIAL. 
 
 offence was committed, or where the offender is appre- 
 hended, or is in custody : — 
 
 Forgery, or uttering forged notes (w). 
 
 Bigamy (the second marriage being the offence) (o). 
 
 Larceny or embezzlement by persons in the public 
 service, or the police {f). 
 
 Offences relating to the Post Office : (if committed 
 upon a mail, or person conyeying letters, or in respect 
 of a post-letter, chattel, money, &c., sent by post, the 
 venue may be either as above, or any county through 
 any part of which the mail, person, letter, chattel, &c., 
 has passed in due course of conveyance by post) (g). 
 
 county. 
 
 In county of iii. Either where the offence was committed, or in 
 adi^ning ^ny adjoining county :— 
 
 Plundering a wrecked ship (r). 
 
 Where the offence was committed within the county 
 of a city or town corporate (except London, West- 
 minster, or Southwark), e.g., Berwick, Newcastle, Bris- 
 tol, Chester, Exeter, and Hull, it may be tried in the 
 next adjoining county (s). 
 
 Where a felony or misdemeanor is committed on the 
 boundary of two or more counties, or within five hundred 
 yards of the boundary, or is begun in one county and 
 completed in another, the venue may be laid in either 
 county (t). 
 
 (j») 24 & 25 Vict. c. 98, s. 41. 
 (o) 24 & 25 Vict. c. 100, s. 57. 
 Ip) 24 & 25 Vict. c. 96, s. 70. 
 Iq) 7 Wm. 4 & 1 Vict. c. 36, s. 37. 
 (r) 24 & 25 Vict. c. 96, s. 64. 
 
 (s) 38 Geo. 3, u. 52 ; 51 Geo. 8, c. 100 ; 14 & 15 Vict. c. 55, ss. 19, 21, 
 23, 24 ; 0. 100, s. 23. 
 (0 7 Geo. 4, K>. 64, s. 12. 
 
PLACE OF TRIAL. 339 
 
 iv. Where the offender is or is brought : — County in 
 
 which defen- 
 
 Offences against the customs on the high seas, the ^aut is ov is 
 offender coming to land (u). 
 
 Forcing on shore, or leaving behind in any place out 
 of the Queen's dominions any of the crew (x). 
 
 V. In either county, where the offence was committed Where the 
 partly in one, partly in another :— lommhJei 
 
 Uttering counterfeit coin in one county and within county, partly 
 ten days uttering in another ; or two persons acting in '" another. 
 concert in two or more counties («/). 
 
 Larceny, simple or compound, is committed in one 
 county and the thief carries the goods into another ; 
 he may be indicted for the simple or compound larceny 
 in the county where he committed it ; or as for simple 
 larceny in the county into which, or in any of the 
 counties through which, he carried the goods (2). 
 
 Conspiracy, &c., where acts are done in furtherance 
 of the design in different counties. 
 
 Libels, threatening letters, challenges, &c., either in 
 the county from which sent, or where received. 
 
 And, generally, where the offence is begun in one 
 county and completed in another, the venue may be 
 laid in either county (a). 
 
 vi. In felonies or misdemeanors committed upon any Offences com- 
 person, or on, or in respect of any property, in or upon ™"^^ °J^^ 
 any coach, cart, or other carriage employed in any land or water. 
 journey, or any vessel employed in river, canal, or 
 inland navigation, the venue may be laid in any county 
 
 (w) 16 & 17 Vict. c. 107, s. 275. 
 
 (x) 17 & 18 Vict. c. 104, ss. 207, 520. 
 
 ((/) 2-t & 25 Vict. c. 99, s. 28. 
 
 (^) 24 & 25 Vict. c. 96, s. 114; v. Arch. :J4. 
 
 (a) 7 Geo. 4, c. 64, s. 12. 
 
 z 2 
 
340 
 
 PLACE OP TRIAL. 
 
 Receivers, 
 where tried. 
 
 Accessories, 
 where tried. 
 
 Blow, &c., 
 followed by 
 death. 
 
 Keturning ' 
 from trans- 
 portation, &c. 
 
 througli which the coach, or through which or between 
 which the vessel passed in the journey {b). 
 
 vii. Eeceivers of stolen property whether charged as 
 accessories after the fact, or with a substantive felony, 
 or with a misdemeanor only, may be tried in the county 
 in which they have or had the property in their pos- 
 session, or in which the principal may be tried (c). 
 
 viii. In the case of felonies wholly committed within 
 England or Ireland, accessories before the fact (who, 
 however, may now be tried in aZZ respects as if principal 
 felons) ((£), and accessories after the fact, may be tried 
 (a) by any court which has jurisdiction to try the prin- 
 cipal ; or (b) in any county in which the act by reason 
 of which such person is an accessory has been com- 
 mitted. In other cases (i.e., when not wholly committed 
 within England or Ireland), by any court having juris- 
 diction to try the principal felony or any felonies 
 committed in any county in which the accessory is 
 apprehended or in custody (e). 
 
 ix. "Where any person being feloniously striken, 
 poisoned, or otherwise hurt upon the sea, or at any 
 place out of England and Ireland, dies in England or 
 Ireland, or vice versa, the offence may be dealt with in 
 any county in England or Ireland in which the death, 
 or the stroke, poisoning, or hurt happened (/). 
 
 X. In indictments for being at large before the expira- 
 tion of a sentence of transportation or penal servitude, 
 the venue may be laid either in the county where the 
 defendant is apprehended, or in that from which he was 
 ordered to be transported, &c. (^). 
 
 (6) 7 Geo. 4, c. 64, s. 13. 
 
 (c) 24 & 25 Vict. c. 96, ». 96. 
 
 Id) V. p. 36. 
 
 (e) 24 & 25 Vict. c. 94, s. 7. 
 
 (/) 24 & 25 Vict. c. 100, s. 10. 
 
 {(j) 5 Geo. 4, c. 84, s. 22 ; 20 & 21 Vict. 
 
 . 3, s. 3. 
 
PLACE OF TRIAL. 
 
 341 
 
 xi. As to offences committed abroad : — Offences com- 
 
 mitted abroad. 
 
 Wtere treason or misprision of treason is committed 
 out of the realm (i.e., out of the United Kingdom of 
 Great Britain and Ireland), the venue may be laid in 
 Middlesex, if the trial is to be in the Queen's Bench 
 DiTision, or in such county as the Queen names, if she 
 appoints a commission to try the offence (h). 
 
 When a subject of the Queen commits homicide on 
 land out of the United Kingdom, he is tried in any 
 county in England or Ireland where he is apprehended 
 or is in custody (i). 
 
 For offences committed on the high seas and other 
 places within the jurisdiction of the Admiralty (Jc), the 
 offender may be tried in any county where he is in 
 custody ; or if the crime is an indictable offence men- 
 tioned in one of the Consolidated Acts, also where he is 
 apprehended (l). 
 
 In the case of indictments preferred at the Central C c. c. 
 Criminal Court, the district within its jurisdiction (m) 
 is to be deemed as one county, and the venue is 
 " Central Criminal Court, to wit." Offences committed Detached parts 
 in detached parts of counties may be dealt with as if "^ ^^^t'^^- 
 committed in the county wholly or in part surround- 
 ing (m). 
 
 (/.) 35 Hen. 8, c. 2, s. 1. 
 
 (j) 24 & 25 Vict. c. 100, s. 9. 
 
 (h) As to jurisdiction on the high seas, v. i2. v. Keyn, 46 L. J. (M.C.) 17. 
 
 (0 T. 7 Geo. 4, c. 64, ». 27 ; 7 & 8 Vict. c. 2 ; 18 & 19 Vict. c. 91, s. 21 ; 
 30 & 31 Vict. c. 124, s. 11 ; 24 & 25 Vict. c. 96, s. 115 ; .;. 97, s. 72 ; 
 c. 98, s. 50 ; c. 99, o. 36 ; u. 100, s. 68. 
 
 (m) V. p. 292. 
 
 (») 2 & 3 Vict. li. 82, a. 1. 
 
( 342 ) 
 
 CHAPTEE VII. 
 
 THE GRAND JUEY. 
 
 The bill of indictment (as yet it is only a " bill," and 
 is not correctly termed an indictment until found true 
 by the grand jury) baving been drawn up, tbe next 
 step is to submit it to tbe grand jury. 
 
 The grand Wbo are tbe grand jury ? Tbe sberiff of every 
 
 jury, how countv is required to return to every sessions of tbe 
 
 chosen. j ■ • r t . ■ i 
 
 peace, and every commission oi oyer and terminer, and 
 of gaol delivery, twenty -four good and loyal men of tbe 
 county " to inquire into, present, do and execute all 
 tbose tbings wbicb, on tbe part of our Lady tbe Queen, 
 sball tben be commanded tbem." Grand jurors at tbe 
 assizes, or at tbe borougb sessions (at tbe latter tbey 
 must be burgesses, 5 & 6 Wm. 4, c. 76, s. 121), do not 
 require any qualification by estate ; at tbe county 
 sessions tbey must bave tbe qualification required of 
 petty jurors (o). At tbe assizes, tbe grand jury gene- 
 rally consists of gentlemen of tbe bigbest position in 
 tbe county. 
 
 The grand jury After tbe court bas been opened in tbe usual way by 
 cha™ed'"^ tbe crier making proclamation, tbe names of tbose 
 summoned on tbe grand jury are called. As many as 
 appear upon tbis panel are sworn. Tbey must number 
 twelve at least, but not more tban twenty-tbree, so 
 tbat twelve may be a majority. Tbe usual proclama- 
 tion against vice and profaneness is read; and tben 
 tbe person presiding in tbe court — the judge at tbe 
 
 (o) 6 Geo. 4, C..50, s. 1. 
 
THE OKAND JURY. 343 
 
 assizes, the chairman at the county sessions, the 
 recorder at the borough sessions^charges the grand 
 jury. The object of this charge is to assist the grand 
 jury in coming to a right conclusion, by directing their 
 attention to points which require special attention. 
 He explains the force of any recent enactments, or any 
 not frequently applied, which bear upon the matters 
 laid before them. He also draws their attention, if 
 necessary, to crimes which are liable to be confused, 
 for example, larceny and embezzlement ; and in general 
 directs their inquiries to the proper channel. 
 
 The charge haying been delivered, the grand jury Examination of 
 withdraw to their own room, having received the bills ^'e^^ran^i''^ 
 of indictment. The witnesses whose names are in-jm-y. 
 dorsed on the bill are sworn as they come to be 
 examined in the grand jury room ; the oath being ad- 
 ministered by the foreman, who, as each witness is 
 examined, writes his initials opposite to the name on 
 the back of the bill (p). Only the witnesses for the 
 prosecution are examined, seeing that the function of 
 the grand jury is merely to inquire whether there is 
 sufficient ground to put the accused on his trial. If The finding of 
 the maiority of them think that the evidence adduced ^^^ ^^^'^^ 
 makes out a sufficient case, the words " a true bill " are 
 indorsed on the back of the bill ; if they are of the 
 opposite opinion, the words " not a true bill " are so 
 indorsed, and in this case the bill is said to be ignored. 
 They may find a true bill as to the charge in one count, 
 and ignore that in another ; or as to one defendant and 
 not as to another ; but they cannot, like a petty jury, 
 return a special or conditional finding, or select parts 
 of the counts as true and reject the rest. When one 
 or more bills are found, the grand jury come into 
 court and hand the bills to the clerk of arraigns, or 
 clerk of the peace, who states to the court the name of 
 the prisoner, the charge, and the indorsement of the 
 
 (/>) 19 & 20 Vict. c. 54, =. 1. 
 
344 
 
 THE GBAND JUEY. 
 
 grand jury. They then retire and consider other bills, 
 until all are disposed of; after which they are dis- 
 charged hy judge, chairman, or recorder, presiding. 
 
 Consequences If the bill is thrown out or " cut," although it cannot 
 thrown out°'°^ again be preferred to the grand jury during the same 
 assizes or sessions, it may be preferred and found at 
 subsequent assizes or sessions, of course within the 
 time limited, if there be any time so limited (q). We 
 may anticipate, by reminding the reader that this 
 cannot be done in respect of the same offence if the 
 petty jury have returned a verdict ; unless, indeed, the 
 prisoner is acquitted, on a charge of felony, merely on 
 the ground that the proof establishes an act short of 
 the felony charged, but which amounts to a mis- 
 demeanor, or another kind of felony. In such ease 
 the court orders him to be detained ; and the proper 
 course is to take him before the magistrate again. 
 
 Bills preferred 
 
 without 
 
 previous 
 
 examination 
 
 before a 
 
 magistrate. 
 
 Vexatious 
 
 Indictments 
 
 Act. 
 
 We have pursued the ordinary method of criminal 
 procedure by supposing that, in the first instance, there 
 has been an examination before the magistrate. But 
 this does not always take place. With certain excep- 
 tions, a person may prefer a bill of indictment against 
 another before the grand jury without any previous 
 inquiry into the truth of the accusation before a ma- 
 gistrate. This general right was, at one time, an 
 universal right, and was often the engine of tyranny 
 and abuse. It is easy to conceive how an innocent 
 man's character might be injured, or at least how he 
 might be put to great expense and inconvenience in 
 defending himself against a charge founded on a true 
 bill returned by the grand jury, who have heard only 
 the evidence for the prosecution. A substantial check 
 was put upon this grievance by the Vexatious Indict- 
 ments Act (r). It provides that no bill of indictment 
 
 (?) Arch. 80. T. p. 331. 
 (r) 22 & 23 Vict. c. 17. 
 
THE GKAND JTJEY. 
 
 345 
 
 for any of the offences enumerated below shall be pre- 
 sented to or found by a grand jury unless one of the 
 folio-wing steps has been taken :— (a) The prosecutor 
 or other person presenting such indictment has been 
 bound by recognizance to prosecute or give evidence 
 against the accused ; or (b) the accused has been com- 
 mitted to or detained in custody, or has been bound by 
 recognizance to appear to answer an indictment for 
 such offence (s) ; or (c) unless the indictment has been 
 preferred by the direction, or with the consent in 
 writing, of a judge of the High Court, or the Attorney 
 or Solicitor-General of England, if the offence has been 
 committed in England ; or of a judge of one of the 
 superior courts of law in Dublin, or the Attorney or 
 Solicitor-General of Ireland, if the offence has been 
 committed in Ireland ; or (d) in case of an indictment 
 for perjury, by the direction of any court, judge, or 
 public functionary, authorized by 14 & 15 Vict. c. 100, 
 to direct, a prosecution for perjury. The offences Offences dealt 
 referred to are : — Perjury, subornation of perjury, ^J,* '" ' '^ 
 conspiracy, obtaining money or property by false pre- 
 tences, keeping a gambling house, keeping a disorderly 
 house, indecent assault ; and now, by the Debtors Act, 
 1869 (t), any misdemeanor under the second part of 
 that Act. The object of this salutary provision was 
 furthered by a subsequent statute (m), one section of 
 which (sect. 2) allows the court trying an indictment 
 for any of such offences, in its discretion, to order the 
 prosecutor to pay costs and expenses to. the accused in 
 the event of the latter's acquittal. 
 
 (s) See s. 2 as to a justice refusing to commit or bail, 
 (i) 32 & 33 Vict. c. 62, s. 18. 
 (M) 30 & 31 Vict. c. 35. 
 
( 346 ) 
 
 CHAPTER VIII. 
 
 PKOCBSS. 
 
 Process, The grand jury have found a true bill. The next point 
 
 to be considered is the process (the writs or judicial 
 means) issued, or made to proceed, to compel the atten- 
 dance of the accused to answer the charge. Of course 
 this is not required if he is in custody or surrenders to 
 his bail ; in such case he may be tried as soon as is 
 convenient. If he is in custody of another court for 
 some other offence, the course is to remove him by a 
 writ of habeas corpus, and bring him up to plead. But 
 if he is already in the custody of the same court, there 
 is no need for such writ (a;). 
 
 wiien it issues. If, howcver, an indictment has been found in the 
 absence of the accused, he having fled or secreted him- 
 self so as to avoid the warrant of arrest, or has not 
 been bound over to appear at the assizes or sessions, 
 then process must issue to bring him into court. It is 
 contrary to the policy and humanity of the English 
 law to try an indictment in the absence of the 
 accused (t/). 
 
 Warrant Procoss in Ordinary cases is now regulated by 11 & 
 
 issued by a 12 Vict. c. 42, s. 3. When an indictment has been 
 
 magistrate. <. n , ,i • • • i 
 
 found at the assizes or sessions against some person 
 who is at large, the clerk of indictments, or clerk 
 of the peace, after such assizes or sessions, upon the 
 application of the prosecutor or any person on his 
 
 {x) 30 & 31 Vict. u. 3j, ». 10. 
 (i/) But V. p. 358. 
 
PEOCESS. 
 
 347 
 
 behalf, will grant a certificate of such indictment 
 haTing been found. Upon production of this certifi- 
 cate to any justice of the jurisdiction where the ofi'ence 
 is alleged to have been committed, or in which the 
 accused resides, or is, or is suspected of residing or 
 being, such justice may and must issue his warrant to 
 apprehend the person so indicted and bring him before 
 some justice of the jurisdiction, who, upon proof by 
 oath that the person present is the person indicted, 
 will, without further inquiry or examination, commit 
 him for trial or admit him to bail (z). Provision is 
 also made for the bacting of such warrant if the 
 accused is out of the above jurisdiction (a). If he is 
 already in prison, the justice must issue his warrant 
 to the gaoler ordering him to detain him until re- 
 moved by habeas corpus or otherwise in due course of 
 law (6). 
 
 Another mode of proceeding is, for the court before Bench wiinunt. 
 whom the indictment is found to issue a heneJi warrant 
 for the arrest of the accused, and to bring him imme- 
 diately before such court. At the assizes it is signed 
 by the judge, at sessions by two justices of the peace. 
 Any judge of the Queen's Bench Division, upon affi- 
 davit or certificate that an indictment has been found, 
 or information filed in that court, may issue his war- 
 rant for apprehending and holding the accused to 
 bail; and in default of bail he may commit him to 
 prison (c). 
 
 In cases not provided for as above, the following are Process in 
 the steps. In misdemeanors, when the indictment is °'^'^^' ""'^'^''" 
 found, a writ of venire facias ad respondendum (which 
 may be issued by the Queen's Bench Division, a judge 
 of assize, or a court of quarter sessions) is issued, its 
 
 (z) 11 & 12 Vict. c. 42, s. 3. 
 
 (a) Ibid. s. 11. 
 
 (6) Ibid. s. 3. 
 
 (c) 48 Geo. 3, c. 58, s. 1. 
 
348 PROCESS. 
 
 nature being a summons to cause the party to appear. 
 If he makes default in appearing to answer" to this 
 writ, a writ of distringas may be issued from time to 
 time. If he still fails to appear, and the sheriff makes 
 return that he has no lands, a writ of capias ad respon- 
 dendum, commanding the. sheriff to take his body to 
 answer the charge, may be issued; and if he is not 
 taken upon the first eapias, a second and a third, 
 termed an alias and a pluries, may issue. Upon an 
 indictment for felony a capias may issue in the first 
 instance. 
 
 Outlawry, If none of these modes of summary process are 
 
 effectual, the accused is liable to outlavrry, the conse- 
 quences differing according as the charge is one of 
 misdemeanor or of felony. 
 
 in misde- First, in the case of misdemeanors. — The proceedings 
 
 "' are by venire facias, distringas, capias, alias capias, 
 
 pluries eapias, as above. If none of these measures 
 accomplish their object, a writ of exigent is awarded, 
 by which the sheriff is required to proclaim or exact 
 the defendant, and call him five successive county court 
 days, charging him to appear upon pain of outlawry. 
 The defendant still not appearing, on the fifth county 
 court day judgment of outlawry is pronounced by one 
 of the coroners for the county. The judgment of out- 
 lawry in misdemeanors operates as a conviction of the 
 contempt for not answering {d). 
 
 in felonies. In felonies (including treason) the proceedings are 
 
 more summary, though they are followed by graver 
 consequences. The first process is a capias, and the 
 other proceedings ensue as above. The outlawry 
 amounts to a conviction or attainder of the offence 
 charged in the indictment, as if the defendant had 
 been found guilty by a jury. Formerly, an outlawed 
 
 (rf) Arch. 86. 
 
PEOOESS. 
 
 349 
 
 felon was considered as literally out of the pale of the 
 law, and might be killed by any one; but now, of 
 course, it would be murder, unless the killing were 
 caused in an endeavour to apprehend him. Any one 
 may arrest an outlaw on a criminal prosecution, either 
 of his own head, or by writ or warrant of capias utla- 
 gatum, in order to give him up to the law (e). 
 
 The general consequences of outlawry, both in Consequences 
 felonies and misdemeanors, are the following: — The" ""''"^'y- 
 person outlawed is civiliter mortuus. His goods are 
 forfeited from the exigent, his lands from the outlawry, 
 and the Act abolishing forfeiture in general does not 
 interfere with this (/). He cannot hold property 
 given or left to him. He cannot sue on his ov^n con- 
 tract, nor can he sue for the redress of any injury. 
 He may be a witness, but cannot be a juror {g). 
 
 As to the reversal of the outlawry. — If there has Reversal nf 
 been any mistake or omission in the proceedings, or •'""■'awry. 
 for other cause — for example, if the defendant was in 
 prison — the accused may have the benefit of this. In 
 cases of felony he must render himself into custody 
 and pay the allowance of the writ of error in person ; 
 if it be reversed, he must still meet the indictment. 
 In other cases he may appear by attorney (h). 
 
 Process on informations is similar to that on indict- Process on 
 ments. But the first process is by writ of svhpoena, infoim^tions- 
 instead of venire ; and then, if this is not effectual, a 
 capias. But if it is necessary to proceed to outlawry, 
 the first process is by venire facias (as in an indictment 
 for misdemeanor), and not by subpoena (i). 
 
 (e) 4 Bl. 319. 
 
 (/) 33 & 34 Vict. u. 23, s. 1. 
 
 (^) r. Bac. Abr. 
 
 (A) 4 & 5 Vfm. 3, c. 18. v. Solomon v. Graham, h Ell. & BI 320 
 
 (0 V. 1 Chit. Cr. L. 86.5. 
 
350 
 
 PROCESS. 
 
 The appearance of the accused having been enforced 
 in this way, or voluntarily made, the next step is to 
 arraign him. But we must first treat of an excep- 
 tional proceeding, which sometimes at this stage 
 intervenes to remove the proceedings to a higher 
 court. 
 
( 351 ) 
 
 GHAPTEE IX. 
 
 CEETIOEAUI. 
 
 We have already ascertained where the trial of an Certiorari. 
 offence will, in the regular course of things, take place. 
 But any criminal proceeding may be removed by a writ 
 of certiorari into the Queen's Bench Division, the 
 supreme court of criminal jurisdiction. This writ is 
 directed to the inferior court, requiring it to return 
 the records of an indictment or inquisition depending 
 before it, so that the party may have a trial in the 
 Queen's Bench Division, or before such justices as the 
 Queen shall assign to hear and determine the cause. 
 The result is, that the jurisdiction of the inferior 
 court is superseded j all proceedings there are illegal, 
 unless the Queen's Bench remands the record back to 
 the inferior court for trial. The proper time to apply when the writ 
 for this writ is before issue is joined on the indictment, should be 
 or at least before the jury are sworn ; but it has been 
 allowed at any time before judgment, and even after- 
 wards, when error does not lie. But applications at 
 such a stage are discouraged, and special cause must be 
 shewn (k). 
 
 In what cases is it granted ? It is demandable as in what cases 
 of right by the Crown, and issues as of course when S"'^"'*'''- 
 the attorney-general or other officer of the crown 
 applies for it, either as prosecutor or as conducting the 
 defence on behalf the Crown (I). Formerly it was 
 granted almost of course to private prosecutors ; but 
 
 (A) 2 Hawk. o. 27, s. 28. v. S. v. Garside, 2 A. & E. 266. 
 (0 £. V. Eaton, 2 T. R. 89. 
 
352 CERTIORARI. 
 
 now by them, as by defendants, leave must be applied 
 for, and this may be refused (m). It is also provided 
 that no indictment (except indictments against bodies 
 corporate not authorized to appear by attorney in the 
 court in vrhich the indictment is preferred) shall be 
 removed into the Queen's Bench Division or. Central 
 Criminal Court by writ of certiorari, either at the 
 instance of prosecutor or of defendant (except the 
 attorney-general on behalf of the Crovm) unless it be 
 made to appear to the court from which the writ is to 
 issue, by the party applying the same, (a) that a fair 
 and impartial trial of the case cannot be had in the 
 court below ; or (b) that some question of law of more 
 than usual difficulty and importance is likely to arise 
 upon the trial ; or (c) that it may be necessary to have 
 a view of the premises in respect whereof the indict- 
 ment is preferred ; or (d) that a special jury may be 
 required to insure a satisfactory trial (m). But, among 
 other cases, an application by the defendant will not be 
 granted for the removal of an indictment for perjury, 
 forgery, or other heinous misdemeanors when the delay 
 tends to defeat the prosecution (o), nor for murder {f). 
 Nor in general will it be removed from a court of com- 
 petent jurisdiction where one of the judges presides, 
 except by consent of the prosecutor {q). 
 
 Mode of obtain- The mode of obtaining the writ is the following: — 
 ing e wri . rpj^g application must be founded on an affidavit sug- 
 gesting adequate ground for the removal. Motion 
 must be made in court, or to a judge in chambers, and 
 leave obtained, and this whether the application is 
 made on the part of the prosecution or of the defence (r). 
 When it is granted at the instance of the defendant, 
 
 (ni) 5 & 6 Wm. 4, c. 33. 
 
 (ji) 16 & 17 Vict. 0. 30. ». 4. 
 
 (o) 2 Hawk. c. 27, s. 28. 
 
 Ip) R. t. Mead, 3 D. & R. 301. 
 
 ((/) Arch. 99, 
 
 (r) 5 & 6 Wm. 4, u. 33, ». 1. 
 
CERTIOBAEI. 353 
 
 the amount of recognizance to he entered into before a 
 judge of the Queen's Bench Division, or a justice of 
 the jurisdiction where the defendant resides, by the de- 
 fendant and his bail, is ordered by the court and indorsed 
 on the writ (s). Moreover, when at the instance of the Costs. 
 defendant, this recognizance must contain the further 
 provision that the defendant, if convicted, will pay to 
 the prosecutor his costs incurred subsequent to the 
 removal of the indictment ; and when at the instance 
 of the prosecutor, he must enter into a recognizance 
 with the condition that he will pay the defendant, if 
 acquitted, the costs incurred subsequent to such re- 
 moval (t). And if such recognizance be not entered 
 into by the parties at whose instance the certiorari 
 is awarded, the court proceeds to trial as if the writ 
 had not been awarded (u). It is after this recogni- 
 zance has been lodged with the clerk of assize or clerk 
 of the peace that all proceedings in the court below are 
 erroneous. 
 
 Provision is made by statute (x) for the trial at the Trial at 
 Central Criminal Court of indictments or inquisitions ^' 
 for felonies or misdemeanors committed out of the 
 jurisdiction of the Central Criminal Court, which have 
 been removed by certiorari into the Queen's Bench 
 Division; and for the removal of such indictment or 
 inquisition by order of the Queen's Bench Division 
 directly into the Central Criminal Court from an 
 inferior court. 
 
 (s) 5 & 6 Wm. & M. c. 11 ; 5 & 6 Wm. 4, u. 33. 
 
 (0 16 & 17 Vict. e. 30, s. 5. 
 
 (m) Ibid. s. 7. 
 
 {x) 19 & 20 Vict. c. 16, ss. 1, 3. 
 
 2 A 
 
( 354 ) 
 
 Time of trial 
 
 in felonies. 
 
 in misde- 
 meanors. 
 
 CHAPTEE X. 
 
 TIME OF TRIAL, ETC. 
 
 A TETJE bill has been found against the defendant, and 
 his attendance has been secured by one of the means 
 indicated above. When will he take his trial at the 
 hands of the petty jury ? 
 
 Indictments for felony afe tried at the same assizes 
 or sessions at which they are found by the grand jury. 
 The trial may, however, be postponed to the next 
 assizes or sessions, on the application of either the 
 prosecutor or the defendant. But he must satisfy the 
 court by affidavit that there is sufficient cause for the 
 postponement, such as the illness or unavoidable 
 absence of a material witness. The defendant will be 
 detained in custody till the trial, or admitted to bail ; 
 or, if the application for postponement is made by the 
 prosecution, the defendant may be discharged on his 
 own recognizances (y). 
 
 In misdemeanors, formerly when the defendant was 
 not in custody, it was the practice not to try him at 
 the same assizes or sessions at which he pleaded not 
 guilty to the indictment, but to require him to give 
 security to appear at the next assizes or. sessions. But 
 now it is provided generally that, — No person prose- 
 cuted is entitled to traverse or postpone the trial of 
 any indictment found against him at any session of the 
 peace, session of oyer and terminer, or of gaol delivery : 
 provided always, that if the court, upon the application 
 
 (y) R. V. Beardmore, 7 C. & P. 497. 
 
TIME OF TRIAL, ETC. 355 
 
 of the person so indicted or otherwise, be of opinion 
 that he onght to be allowed a further time, either to 
 prepare for his defence or otherwise, such court may 
 adjourn his trial to the next subsequent session, upon 
 such terms as to bail or otherwise as seem proper to the 
 court, and may respite the recognizances of the prose- 
 cutor and witnesses accordingly, in which case the 
 prosecutor and witnesses are bound to prosecute and 
 give evidence at such subsequent session without 
 entering into any fresh recognizance for that pur- 
 pose (z). 
 
 As to the order of trial of prisoners at the same Order of trial, 
 assizes or sessions, the indictments found are filed 
 by the clerk of arraigns or clerk of the peace in the 
 order in which they are received from the grand 
 jury. And, roughly speaking, this is the order of trial, 
 felonies, as a rule, being taken before misdemeanors, 
 and cases in which the defendant is in custody before 
 bail cases. But this arrangement is subject to the 
 discretion of the judge, who constantly sets it aside to 
 suit the convenience of counsel, and for other purposes. 
 
 AREAIGNMENT (o). 
 
 The arraignment, or requiring the prisoner to answer Arraignment, 
 to the charge of an indictable offence, consists of three 
 parts : — 
 
 (a.) Calling the prisoner to the bar by name, 
 
 (b.) Eeading the indictment to him. 
 
 (c.) Asking him whether he is guilty or not of the 
 offence charged. 
 
 The former practice of requiring him to hold up his 
 hand for the purpose of identification is now generally 
 
 (2) 14 & 15 Vict. u. 100, =. 27. 
 (a) Ad rationem — ad reson — a rean. 
 
 2 A 2 
 
356 TIME OP TKIAL, ETC. 
 
 disused, unless it be adopted in order to distinguish 
 between two or more prisoners who are being arraigned 
 at the same time. Nor is the prisoner now asked how 
 he will be tried, it being taken for granted that he will 
 be tried by a jury. He is to be brought to the- bar 
 without irons, or any manner of shackles or bonds, 
 unless there is evident danger of escape. In felonies 
 he must be placed at the bar of the court, though in 
 misdemeanors this does not seem necessary (b). If 
 several defendants are charged in the same indictment, 
 they ought all to be arraigned at the same time. It 
 is usual, for convenience' sake, to arraign several 
 prisoners immediately in succession, and then to pro- 
 ceed to the trial of one, the rest being put down for the 
 time. 
 
 Taking the The indictment having been read to the prisoner, 
 
 '' ''^' the clerk of arraigns, or clerk of the peace, or other 
 
 proper officer of the court, demands of him, " How say 
 you, John Styles, are you guilty or not guilty ?" One 
 of three courses will then be taken by the prisoner. 
 He will either 
 
 (a.) Stand mute, (b.) Confess, or say that he is 
 guilty, (c.) Plead. 
 
 standing Standing mute, that is, not answering at all, or 
 
 """*"• answering irrelevantly. In former times, if, in cases 
 
 of felony, this standing mute was obstinate, the sentence 
 oi peine forte et dure followed (c); in treason and mis- 
 demeanor the standing mute was equal to a conviction. 
 Later, in every case it had the force of a conviction (c2). 
 If the prisoner was dumb ex visitatione Dei, the trial 
 proceeded as if he had pleaded not guilty. But now, if 
 the prisoner stands mute of malice, or will not answer 
 directly to the indictment or information, the court 
 
 (6) S. V. Lovett, 9 C. & P. 462. 
 
 (c) V. Reeves's Hist, of Eng. Law, ii. 134, iii. 133, 250, 418. 
 
 (d) 12 Geo. 3, u. 20. 
 
TIME OF TRIAL, ETC. 357 
 
 may order the proper officer to enter a plea of not 
 guilty on behalf of such person ; and the plea so entered 
 has the same force and effect as if the person had 
 actually so pleaded (e). If it is doubtful whether the 
 muteness be of malice or ex visitatione Dei, a jury of 
 any twelve persons present may be sworn to discover 
 this. If they find him mute of malice, 7 & 8 Geo. 4, 
 c. 28, will apply ; if mute ex visitatione Dei, the court 
 will use such means as may be sufficient to enable him 
 to understand the charge and make his answer ; or if 
 this be found impracticable, a plea of not guilty will 
 be entered and the trial proceed. 
 
 In the event of a doubt arising as to the sanity of a Doubt as to 
 prisoner at the time of his arraignment, a jury will be pj^g'^^" ^j 
 sworn to ascertain the state of his mind. If they find time of 
 him insane, so that he cannot be tried on the indict- "'^'S"""^" • 
 ment, it is lawful for the court before whom he is 
 brought to be arraigned to direct such finding to be 
 recorded ; and thereupon to order such person to be 
 kept in strict custody until Her Majesty's pleasure be 
 known. If he does not seem able to distinguish be- 
 tween a plea of guilty and not guilty, this is enough to 
 justify the jury in finding him of unsound mind. So- 
 also if he has not sufficient intellect to comprehend the 
 course of proceedings, so as to make a proper defence, 
 and challenge jurors, and the like (/). It will be re- 
 membered that although the prisoner was sane when 
 the crime was committed, if he appears to be insane 
 at the time of arraignment (or indeed at any subse- 
 quent period), the trial will be deferred until he has 
 recovered his reason (gi). 
 
 We may notice here that no trial for felony can be Presence of 
 
 accused at the 
 ■ trial. 
 
 (c) 7 & 8 Geo. 4, v. 28, s. 2. 
 
 (/) S. V. Pritchard, 7 C. & P. 303. 
 
 Ig) V. 39 & 40 Geo. 3, u. 94, s. 2. B. v. Berry, 34 L. T. (N.S.) 590. 
 Insanity at the time of the commission of the crime is quite another con- 
 sideration, and is treated of elsewhere, v. p. 20. 
 
358 
 
 TIME OF TKIAL, ETC. 
 
 had except in the presence of the prisoner. But in 
 cases of misdemeanor, after the defendant has pleaded, 
 the trial may go on, though he is not present. Thus, 
 in a recent case of perjury, when the defendant took 
 ill, the trial proceeded during his temporary absence (h). 
 In indictments or informations for misdemeanor in the 
 Queen's Bench, the accused may appear by attorney. 
 
 Confession, or 
 answer of 
 " Guilty." 
 
 CONFESSION. 
 
 If the accused mates a simple, unqualified confession 
 that he is guilty of the offence charged in the indict- 
 ment, if he adheres to this confession, the court has 
 nothing to do but to award judgment, generally hear- 
 ing the facts of the case from the prosecuting counsel. 
 But the court usually shews reluctance to accept and 
 record such confession in cases involving capital or 
 other great punishment ; often it advises the prisoner 
 to retract the confession and plead to the indictment. 
 The reason of this is obvious, the defendant may not 
 fully understand the nature of the charge, he may be 
 actuated by a morbid desire for punishment, &c. When 
 the prisoner has pleaded guilty, and sentence has been 
 passed, he cannot retract his plea and plead not 
 guilty (i). On the other hand, a prisoner who has 
 pleaded not guilty may, by leave of the court, on the 
 advice of his counsel or otherwise, withdraw that plea 
 and plead guilty (j). 
 
 Confession 
 before the 
 magistrate is 
 merely 
 evidence. 
 
 A free and voluntary confession by the defendant 
 before the magistrate, if duly made and satisfactorily 
 proved, is sufficient to warrant a conviction without 
 further corroboration ; but, of course, the whole of the 
 confession must be taken into account, the part favour- 
 able to the prisoner as well as that against him. This 
 confession, as also any free or voluntary confession 
 
 (A) -S. V, Castro. 
 
 (i) S. V. Sell, 9 C. & P. 346. 
 
 (i) V. S. V. Srown, 17 L. J. (M.C.) 145. 
 
TIME OF TRIAL, ETC, 359 
 
 made to any otter person, is merely evidence (though 
 if undisputed no other eyidence may be needed) ; and 
 is to be widely distinguished from the confession in 
 court or plea of guilty. 
 
 In connection with this subject we must advert to Queen's 
 the case of one of several co-defendants turning Queen's *" ^'^°*' 
 evidence. When sufficient evidence of a felony cannot 
 be obtained from other quarters, and when it is per- 
 ceived that the testimony of one of the accused would 
 supply this defect; it is usual for the committing 
 magistrate to hold out hope to this one that if he will 
 give evidence so as to bring the others to justice, he 
 himself will escape punishment. The approval of the 
 presiding judge will have to be obtained (k). Even 
 during the trial it sometimes happens that the counsel 
 for the prosecution, with the consent of the courts 
 when such a course is necessary to secure a conviction, 
 takes one of the defendants out of the dock and puts 
 him in the witness-box; such prisoner, of course, ob- 
 taining a verdict of acquittal [l). But, as we shall see 
 hereafter more fully, the evidence of an accomplice is 
 to be regarded with suspicion, and requires corrobora- 
 tion (m). 
 
 (/e) S. V. Sudd, 1 Leach, 115. 
 (0 S. V. Bowland, Ry. & M. 401. 
 (m) T. p. 395. 
 
( 360 ) 
 
 CHAPTER XI. 
 
 PLEAS. 
 
 Pieaii. If the defendant neither stands mute nor confesses, he 
 
 pleads, that is, he alleges some defensive matter. The 
 learning on the subject of the different pleas has be- 
 come to a great extent a matter of history rather than 
 of practice, on account of the comprehensiye character 
 of the plea of the general issue of not guilty, and also 
 on account of the right to move in arrest of judgment. 
 
 Their order. The following are the names of the pleas in the order 
 in which they should be pleaded : — 
 
 i.'Plea to the jurisdiction, | termed "dilatory 
 ii. Plea in abatement, j pleas." 
 iii. Special pleas in bar, 
 
 (a.) Autrefois acquit. 
 
 (b.) Autrefois convict. 
 
 (c.) Autrefois attaint. 
 
 (d.) Pardon, 
 iv. General issue of not guilty. 
 
 Each of these will be considered separately. In the 
 next chapter Demurrers will be noticed. , These Black- 
 stone treats' as pleas, whereas in truth they are rather 
 in the nature of objections that there is not sufficient 
 case in point of law to oblige the accused to plead. 
 
 How many It is uot to be Understood that a defendant may in 
 
 ^^'^t^ilo^ turn go through the whole of these pleas, resorting to 
 
PLEAS. 361 
 
 the subsequent plea as a previous one fails. The rule 
 is that not more than one plea can be pleaded to an 
 indictment for misdemeanor, or a criminal information. 
 In felonies, if the accused pleads in abatement, he may 
 afterwards, if the plea is adjudged against him, plead 
 over to the felony, that is, plead the general issue of 
 not guilty. 
 
 i. Plea to the jwisdiction. — When an indictment is Plea to the 
 taken before a court which has no cognizance of the J'^i''^'*'"''""- 
 offence, the defendant may plead to the jurisdiction, 
 without answeriiig at all to the crime alleged. This 
 want of jurisdiction may arise either from the fact that 
 the offence was not committed within the district of 
 the jurisdiction, for example, if a person be indicted in 
 Kent for stabbing a person in Sussex ; or because the 
 tribunal in question has not cognizance of that class of 
 crimes, for example, if a person be indicted at the 
 sessions for murder. 
 
 But this plea is very seldom resorted to, inasmuch as Why seldom 
 relief can be obtained in other ways. Thus the objec- P'^''"*^'^- 
 tion that the offence was committed out of the jurisdic- 
 tion may generally be urged under the general issue, 
 or, in certain cases, by demurrer, or by moving in arrest 
 of judgment, or by writ of error. If the objection is 
 that the crime is not cognizable in a court of that 
 grade, though committed within the jurisdiction, the 
 defendant may demur, or have advantage of it under 
 the general issue, or by removing the indictment to the ^ 
 
 Queen's Bench Division and there quashing it. 
 
 The clerk of the peace or of the arraigns may make 
 replication, shewing that the offence is triable by the 
 court. And to this the defendant may rejoin (w). 
 
 (n) This pleading is done out of court, and must be distinguished from 
 the objections taken under the general issue by the prisoner in court. 
 
362 
 
 PLEAS. 
 
 I'lea in abate- ii. Plea in abatement. — This is another dilatory plea, 
 formerly principally used in the case of the defendant 
 being misnamed in the indictment ; for example, if a 
 wrong Christian name or addition were given. But 
 even if the defendant was successful on this plea, a new 
 bill of indictment with the correction might at once be 
 framed. The plea is now, however, virtually obsolete. 
 It has been enacted 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, if 
 the court be satisfied of the truth of the plea. The 
 court will cause the indictment or information to be 
 amended, and will call upon the party to plead thereto, 
 and will proceed as if no such dilatory plea had been 
 pleaded (o). And no indictment is to be held insuf- 
 ficient for want of, or imperfection in, the addition of 
 any defendant (p). 
 
 Special pleas 
 in bar. 
 
 iii. Special pJeas in iar. — These are termed " special " 
 to distinguish them from the general issue; and "in 
 bar " because they shew reason why the defendant ought 
 not to answer at all, nor put himself upon his trial for 
 the crime alleged, and thus they are distinguished from 
 dilatory pleas which merely postpone the result. 
 
 All matters of excuse and justification may be given 
 in evidence under the general issue; therefore it is 
 hardly ever necessary to resort to a special plea in bar, 
 except in the four cases to be examined more in 
 detail {q). 
 
 Judgment ou 
 such special 
 pleas. 
 
 If judgment on a special plea in bar is given against 
 
 (o) 7 Geo. 4, 0. 64, ». 19. 
 
 (jir) 14 & 15 Vict. c. 100, s. 24. We hare already adverted to the large 
 powers of amendment which are given to the court by this statute. 
 
 (i?) " In fact, the only instance in which a special plea in bar seems 
 requisite in criminal cases is, where a parish or county is indicted for not 
 repairing a road or bridge, &c., and wishes to throw the onus of repairing 
 upon some person or persons not bound of common right to repair it." — 
 Arch. 135. 
 
PLEAS. 
 
 363 
 
 the defendant in a felony, it is to the effect that he 
 make further answer (respondeat ouster); but as he 
 generally pleads at the same time the general issue, 
 when Buch judgment is given against him the jury 
 proceed to inquire into his guilt, as if the special plea 
 had not been pleaded. If the plea is established in his 
 favour, he is discharged. In misdemeanors the judg- 
 ment is final, so that if it is against the defendant he 
 is considered guilty of the offence ; if for him, he is 
 discharged. 
 
 (a.) Autrefois acquit. — ^When a person has been in- Plea of autre- 
 dicted for an offence and regularly acquitted, he cannot •''"* ""*'" ' 
 afterwards be indicted for the same offence, provided that 
 the indictment were such that he could have been law- 
 fully convicted on it. It is against the policy of the 
 English law that a man should be put in peril more 
 than once for the same offence. And therefore if he is 
 indicted a second time, he may plead autrefois acquit, 
 and thus bar the indictment. It is frequently a difficult 
 matter to determine whether the second indictment 
 bears such a relation to the first, that the latter is a 
 bar to the former. The true test seems to be this — 
 whether the facts charged in the second indictment 
 would, if true, have sustained the first (*■). An ac- 
 quittal for murder may be pleaded in bar of an indict- 
 ment for manslaughter, and vice versa. So with larceny 
 and embezzlement ; robbery, and assault with intent to 
 rob ; felony, and an attempt to commit the felony. But 
 an acquittal for larceny is no bar to an indictment for 
 false pretences ; nor will an acquittal as accessory bar 
 an indictment as principal, and vice versa. 
 
 The prisoner must satisfy the court, first, that the What acquittal 
 former indictment on which an acquittal took place !|',.oved.'^ 
 was sufficient in point of law, so that he was in jeopardy 
 upon it; secondly, that in the indictment the same 
 
 (r) £. V. Vandercomb, 2 Leach, 708. 
 
364 
 
 PLEAS. 
 
 Plea o{ autre- 
 fois convict. 
 
 offence was charged, for the indictment is in such a 
 form as- to apply equally to several different offences (s). 
 To prove his acquittal he may obtain a certificate 
 thereof from the officer or his deputy having custody 
 of the records of the court where the acquittal took 
 place (t). 
 
 (b.) Autrefois convict. — A former conviction may be 
 pleaded in bar of a subsequent indictment for the 
 same offence; and this, whether judgment were given or 
 not. The same rules as in the plea of autrefois acquit 
 generally apply ; thus there is the same test as to the 
 identity of the crime (m). 
 
 Plea of autre- 
 fois attaint. 
 
 Pardon. 
 
 (c.) Autrefois attaint. — Formerly when a person was 
 attainted, as long as the attainder was in force he was 
 considered legally dead. Therefore a plea of an already 
 existing attainder was a bar to a subsequent indictment 
 for the same or for any other felony, on the ground 
 that such second prosecution of a person already dead, 
 and whose property had been forfeited, would be useless. 
 But now an attainder is no bar unless the attainder be 
 for the same offence as that charged in the indict- 
 ment (x), so that practically the plea of autrefois attaint 
 is a thing of the past. 
 
 (d.) Pardon. — A pardon may be pleaded not only in 
 bar to the indictment (as in the case of the three pleas 
 just noticed), but also after verdict in arrest of judg- 
 ment ; or, after judgment, in bar of execution. But it 
 must be pleaded as soon as the defendant has an oppor- 
 
 (s) Parke, B., in S. v. Bird, 2 Den. 94, 98. 
 
 (i) 14 & 15 Vict. c. 99, s. 13. 
 
 (w) The reader should refer to the chapter on Summary Conviction, 
 p. 4(50 ; where he will meet with defences similar to^ these pleas of autrefois 
 acquit and autrefois convict, namely, a certificate of dismissal, or proof of 
 having submitted to punishment, in cases of assault and battery under 
 24 & 25 Vict. c. 100, ss. 44, 45. So also as to dismissal or conviction of 
 juvenile offenders, v. 10 & 11 Vict. c. 82, s. 3. 
 
 (x) 7 & 8 Geo. 4, c. 28, s. 4. 
 
PLEAS. 
 
 365 
 
 tunity of doing so ; otherwise he will be considered to 
 have waived the benefit of it. The subject will find a 
 more convenient place hereafter (y). 
 
 iv. The general issue of not guilty. — When the The general 
 prisoner, on being charged with the offence, answers '^^"^" 
 viva voce at the bar " Not guilty," he is said to plead 
 the general issue. The consequence is, that he is to be 
 tried by a jury, or, as it is frequently stated, he puts 
 himself upon the country for trial. The plea is recorded 
 by the proper officer of the court, either by writing the 
 words " po. se." (posuit se super patriam), or at the 
 Central Criminal Court by the word "puts." 
 
 This is much the most common and advantageous Advantages of 
 course for the prisoner to take; unless, indeed, he P'^?.^'°i "^"^ 
 pleads guilty, and thereby the court is induced to take 
 a more lenient view of his case. Pleading the general 
 issue does not necessarily imply that the prisoner con- 
 tends that he did not do the actual deed in question, 
 inasmuch as it does not prevent him from urging mat- 
 ter in excuse or justification. More, this is practically 
 the only way in which he can urge matter in excuse or 
 justification. Thus, on an indictment for murder, a 
 man cannot plead that the killing was done in his own 
 defence against a burglar ; he must plead the general 
 issue — not guilty — and give the special matter in evi- 
 dence. The pleading of the general issue lays upon 
 the prosecutor the task of proving every material fact 
 alleged in the indictment or information ; while the 
 accused may give in evidence anything of a defensive 
 character. 
 
 Issue. — When the prisoner has pleaded not guilty, issue. 
 the record is made up, both parties being brought to 
 an issue, and both putting themselves upon their trial 
 by jury. The general issue appears on the record: 
 
 (</) T. p. 453. 
 
866 
 
 PLEAS. 
 
 " And the said John Styles forthwith being/ demanded 
 concerning the premises in the said indictment above 
 specified and charged upon him, how he will acquit him- 
 self thereof, saith, that he is not guilty thereof." And on 
 the part of the prosecution the similiter is then added : 
 " And John Brown (the clerk of the arraigns, or clerk 
 of the peace) who prosecutes for our said lady the 
 Queen in this behalf, doth the like. Therefore let a Jury 
 come," &c. (z). 
 
 (jEf) For other ceremonies formerly observed, and the origin of the term 
 ' culprit," &o., V. 4 Bl. 339, or 4 St. Bl. 406, n. 
 
( 367 ) 
 
 CHAPTEE XII. 
 
 DEMURREE. 
 
 A Demueeee is an objection on the part of the defen- Demurrer, 
 dant who admits the facts alleged in the indictment to 
 be true, but insists that they do not in point of law 
 amount to the crime with which he is charged. Thus, 
 if a person is indicted for feloniously stealing goods 
 which are not the subject of larceny at common law or 
 by statute, he may demur to the indictment, denying 
 it to be a felony. It is for the court, on hearing the 
 arguments, to decide whether the objection be good. 
 The following is the form of a demurrer : — 
 
 " And the said John Styles in his own proper person 
 Cometh into court here, and, having heard the 
 said indictment (or information) read, saith, 
 that the said indictment (or information) and 
 the mutters therein contained, in manner and 
 form as the same are above stated and set 
 forth, are not sufficient in law, and that he the 
 said J. 8. is not hound hy the law of the land 
 to answer the same; and this he is ready to 
 verify: wherefore, for want of a sufficient 
 indictment (or information) in this behalf, the 
 said J. 8. prays judgment, and that by the court 
 he may he dismissed and discharged from the 
 said premises in the said indictment (or in- 
 formation) specified." 
 
 If on the demurrer judgment is given for the defen- Judgment ou 
 dant, it is to the effect that he be discharged, provided 'J«'""i'''=''- 
 that the objection be a substantial one; that the 
 indictment be quashed, if it is a merely formal one. 
 If judgment is given against the defendant, in felonies 
 the judgment is final; in misdemeanors it is final. 
 
368 
 
 DBMURKEE. 
 
 Demurrers, 
 why seltlom 
 resorted to. 
 
 Demurrer in 
 abatement. 
 
 unless the court should afterwards permit the defen- 
 dant to plead over (a). 
 
 Demurrers in criminal cases seldom occur in practice. 
 Not only is there the risk of having final judgment 
 against the defendant, but the same objections may be 
 brought forward in other and safer ways. In cases of 
 defects in substance apparent on the face of the indict- 
 ment, generally the defendant may, instead of demur- 
 i^ing) plead not guilty, and then, if convicted, move in 
 arrest of judgment. Thus he has a double chance of 
 getting off, first on the facts of the case, then on the 
 point of law. But this course cannot be taken when 
 the defect in the indictment is cured by verdict (h). 
 
 Formerly there was another kind of demurrer besides 
 the general demurrer to which we have been referring, 
 namely, a special demurrer, usually termed a " de- 
 murrer in abatement." This was founded on some 
 formal defect in the indictment, whereas a general 
 demurrer is founded on some substantial defect. But 
 now no demurrer lies in respect of the defects speci- 
 fied in the 24th section of 14 & 15 Yict. c. 100 (c); 
 and demurrers for other formal defects are practically 
 rendered useless by sect. 25 of the same statute, which 
 provides that every objection to an indictment for any 
 formal defect apparent on the face thereof shall be 
 taken by demurrer or motion to quash the indictment 
 before the jury are sworn, and not afterwards ; and 
 the court before which such objection is taken for any 
 formal defect may, if it be thought necessary, cause 
 the indictment to be forthwith amended in such parti- 
 culars, and thereupon the trial will proceed as if no 
 such defect had appeared. 
 
 (a) This seems to be the state of the law as settled in iJ. y. Faderman, 
 1 Den. 569 ; 3 C. & K. 353 ; though some still contend that in felonies, 
 after judgment against the defendant, he may still plead not guilty ; and a 
 defendant has been allowed to demur and plead not guilty at the same time. 
 
 (6) V. 7 Geo. 4, c. 64, s. 21. Heymann v. R., L. R. 8 Q. B. 105. R. v. 
 Goldsmith, L. R. 2 C. C. R. 74; 42 L. J. (M.C.) 94. 
 
 (c) y. p. 326. 
 
( 369 ) 
 
 TRIAL. 
 
 It will not be necessary to describe the various modes Obsolete forms 
 of trial which have long been abolished, namely, the °^ *''"''■ 
 ordeal, the corsned, trial by battle {d). The last of 
 these was suppressed by 59 Greo. 3, c. 46, in conse- 
 quence of a case (e) in which the person accused 
 demanded the settlement of the question by a fight. 
 
 The only modes of trial which now remain are : — The existing 
 
 forms. 
 
 A. Trial of peers in the Court of Parliament or the 
 Court of the Lord High Steward, of which enough has 
 been said above. 
 
 B. Trial by jury (or by the country — per patriam) — 
 the trial by his peers which every Englishman is 
 entitled to claim (/). This of course is the ordinary 
 mode of trial, both at the sessions, the assizes, the 
 Central Criminal Court, and the Queen's Bench Divi- 
 sion. It is this with which we have now to deal, 
 taking the various steps in their order. 
 
 (cQ A full account will be found in the various editions of Blackstone, 
 Hallam's Middle Ages, Eeeves's History of English Law, and the other 
 works dealing with the history of the law. 
 
 (e) Ashford v. Thornton, 1 B. & Aid. 405. 
 
 (/) Nullus liber homo capiatur, vel imprisonetur, out exulet, aut aliquo 
 alio modo destruafur, nisi per legale judicium parium suorum, vel per legem 
 terrcB. — Magna Charta. 
 
 2 B 
 
( 370 ) 
 
 CHAPTEE XIII. 
 
 THE PETTY JURY. 
 
 When the prisoner has put himself upon the country, 
 the petty jurors are called by the clerk to answer to 
 their names. The list which is thus called over is the 
 panel returned by the sheriff. 
 
 Petty jurors, Who are liable to serve on the petty jury, and how are 
 who are liable, ^j^^^ returned? The law on this subject is contained 
 chiefly in two statutes, the Jury Act, 1826 (g), and 
 the Juries Act, 1870 (h). The qualification of common 
 jurors is the following : — Every man between the ages 
 of twenty-one and sixty, residing in any county in 
 England, who has in his own name, or in trust for 
 him, within the same county, £10 by the year above 
 reprises in lands or tenements, or in rents therefrom, 
 or in such lands and rents taken together, in fee 
 simple, fee tail, or for the life of himself or some other 
 person — or lands to the value of £20 a year held by 
 lease for twenty-one years or longer, or for a term 
 of years determinable on any life or lives ; or who, 
 being a householder, is rated or assessed to the poor- 
 rate or to the inhabited house duty, in Middlesex to 
 a value of not less than £30, or in any other 
 county not less than £20 ; or who occupies a house 
 containing not less than fifteen windows — is qualified 
 to serve on petty juries at the courts at Westminster, 
 in the counties palatine, and at the assizes, and also at 
 both the grand and petty juries at the county 
 
 (g) 6 Geo. 4, c. 50. 
 (A) 33 & 34 Vict. ^. 77. 
 
THE PETTY JUBY. 
 
 371 
 
 sessions (i). Every burgess is qualified and liable 
 to serve on tbe grand and petty juries at the borough 
 quarter sessions {k). 
 
 Certain exemptions from serving on juries are Exemptions 
 enumerated by the Juries Act, 1870. The following ^;7,4';]i,"4, 
 are amongst those exempted : — Peers, Members of Par- 
 liament, clergymen, Eoman Catholic priests, ministers 
 of any congregation of Protestant Dissenters or Jews 
 whose place of meeting is duly registered, provided 
 they follow no secular occupation except that of school- 
 master ; those actually practising in the law as 
 barristers, solicitors, managing clerks, &c ; officers of 
 the law courts, and acting clerks of the peace or their 
 deputies ; coroners ; gaolers and their subordinates, 
 and keepers in public lunatic asylums; physicians, 
 surgeons, apothecaries, pharmaceutical chemists actu- 
 ally practising j officers of the navy, army, or militia, 
 or yeomanry, if on full pay ; pilots ; certain persons 
 engaged in the civil service ; officers of the police ; 
 magistrates to a certain extent; burgesses as regards 
 the sessions of the county in which their borough 
 is situated (T). 
 
 These exemptions must be claimed before the revi- 
 sion of the list by the justices (to). Aliens domiciled 
 in England or Wales for ten years or upwards may be 
 jurors, if otherwise qualified (n). Convicts, unless 
 pardoned, and outlaws are disqualified (o). 
 
 The mode in which the sheriff's list of jurors is The jury list. 
 prepared is the following : — The clerk of the peace of 
 every county, riding, or division, on or before July 20th 
 
 (0 6 Geo. 4, 0. 50, s. 1. 
 
 (A) 5 & 6 Wm. 4, e. 76, s. 121. 
 
 ll) 33 & 34 Vict, c. 77, s. 9. See also 34 & 35 Vict. c. 103, s. 30. 
 
 (m)Ibid. s. 12. 
 
 (n) Ibid, s. 8. 
 
 (o) Ibid. s. 10. As to special jurors, v. p. 378. 
 
 2 B 2 
 
•^'■^ THE PETTY JUBY. 
 
 of each year, issues a precept to the churchwardens 
 and overseers of the poor of the several parishes, and 
 the overseers of the poor of the several townships, 
 requiring them to make out before September 1st a list 
 of persons within their jurisdiction qualified and liable 
 to serve on juries as above. The churchwardens and 
 overseers make out the lists, affixing a copy to every 
 public place of worship on the first three Sundays 
 in September. The justices correct these lists at a 
 special petty sessions held in the last week of Septem- 
 ber. The lists are then copied by the clerk of the 
 peace into the jurors' book ; and this is delivered to 
 the sheriff for use during the ensuing year (p). Before 
 each assizes or sessions a precept issues to the sheriff, 
 requiring him to return a competent number of jurors 
 from those whose names appear in the current, jurors' 
 The panel. book. The panel (an oblong piece of parchment) 
 must contain the names of the competent number 
 alphabetically arranged, with their places of abode 
 and additions The jurors must be summoned six 
 days at least before they are required to attend {q). 
 The names of the petty jurors •who attend are re- 
 gistered, and each juror may require from the clerk of 
 Exemptions on the peace a certificate of his attendance. This exempts 
 fervice " ^™ from liability to serve again as a petty juror at 
 
 the assizes for one year after he has served as such 
 in Wales, Hereford, Cambridge, Hunts, or Eutland, 
 four years in York, and two years in any other county, 
 and from liability to serve again as a grand or petty 
 juror at the sessions for one year after he has served 
 as such in Wales or one of the four above-named 
 counties, or two years in any other county. In 
 Middlesex a person is exempted from serving as a juror 
 at any sessions of nisi frim or gaol delivery, if he has 
 served as such in either of the two terms or vacations 
 next immediately preceding (r). 
 
 (p) T. 6 Geo. 4, c. 50 ; 25 & 26 Vict. c. 107 ; 33 & 34 Vict, c 77. 
 (3) 33 & 34 Vict. c. 77, s. 20, 
 (r) 6 Geo. 4, c. 50, s. 42. 
 
THE PETTY JUEY. 373 
 
 Jurors who have been summoned not attending, and Fining jurors 
 
 for non- 
 attendance. 
 
 not giving sufficient reason for their absence, and in ^°^' °''°' 
 
 court having been three times ordered to appear and 
 save their fines, may be fined. Of course, no person 
 who was on the grand jury by which the bill was found 
 can sit upon the petty jury by which it is tried. 
 
 The names of the jurors summoned are written on Putting the 
 tickets and put- into a box. The twelve first drawn {"J™"' '°'° """ 
 are sworn on the jury, unless absent, excused, or 
 challenged, or unless a previous view of some matter 
 connected with the subject in issue has been ordered 
 by the court, in which case the jurors who have had 
 the view are sworn first. The remaining jurors are 
 either ordered by the judge to remain in attendance in 
 case their services should be required, or are allowed 
 to retire until another day, or are released altogether, 
 according to the discretion of the judge. 
 
 The prisoner or prisoners, for usually a batch of Giving tiie 
 them are brought up at the same time to appear before P'''^"°«'^^ *''«"■ 
 the jury, are apprised of their right to object to or 
 challenge any of the jurors by the clerk of the arraigns 
 or other officer of the court in the following terms : — 
 " Prisoners, these men that you shall now hear called are 
 the jurors who are to pass between our sovereign lady 
 the Queen and you upon your respective trials (or, in a 
 capital case, upon your life and death); if, therefore, 
 you, or any of you, will challenge them, or any of them, 
 you must challenge them as they come to the book to be 
 sworn, and before they are sworn, and you shall be 
 heard." The twelve jurors are then called by the 
 proper officer. Challenges may be made not only on 
 behalf of the prisoner, but also on behalf of the 
 Crown. They are of two kinds : (a.) For cause ; 
 (b.) Peremptory. The former are either : — 
 
 i. To the array, when exception is taken to the 
 whole panel. 
 
374 
 
 THE PETTY JUKY. 
 
 ii. To the polls, when particular individuals are 
 objected to. 
 
 Challenge to 
 the array : 
 
 priacipal. 
 
 for favour. 
 
 i. The challenge to the array is an objection to the 
 whole body of jurors returned by the sheriff, not on 
 account of their individual defects, but for some par- 
 tiality or default in the sheriff or his under-officer 
 who arrayed the panel. It may be either (a.) A prin- 
 cipal challenge, which is founded on some manifest 
 partiality, as if the sheriff be the prosecutor or person 
 injured, or be closely connected with such person, or 
 if he have any pecuniary interest in the trial, or be 
 influenced in his return of jurors by the prosecutor or 
 defendant, or if he be counsel, attorney, &c., in the 
 case ; or it may be founded on some error on the part 
 of the sheriff. If the cause of challenge is substan- 
 tiated the court will quash the array, (b.) Challenge 
 iov favour, in cases where the ground of partiality is 
 less apparent and direct, as when one of the parties is 
 tenant to the sheriff. 
 
 Trial of the 
 challenge. 
 
 The challenge to the array ought to be in writing, 
 and must state specifically the ground of objection. 
 How is it to be determined whether it shall tate effect? 
 The other side, prosecution or defence, may either 
 plead to the challenge, traversing or denying its cause, 
 or may demur to it as insufficient. If it is demurred 
 to, the court will decide the demurrer. If the other 
 side pleads to the challenge, two triers are appointed 
 by the court (generally from the jurymen returned), 
 and are sworn and charged to try whether the array is 
 ail impartial one. Sometimes it is tried by the coroners, 
 or by others, the mode being left to the discretion 
 of the court (s). If the challenge is found to be well- 
 grounded, a new venire is awarded to the coroners ; or, 
 if they are interested, to the elisors (two clerks of the 
 
 (s) 4 Bl. 353. 
 
THE PETTY JUKY. 375 
 
 court, or two persons named by the court and sworn). 
 The return of these elisors cannot be questioned. 
 
 Though the challenge to the array be determined 
 against the party, he may still have — 
 
 ii. A challenge to the 'polls. — This is also either challenge to 
 (a) principal ; or (b) for favour. ^^^ P°"^ = 
 
 Principal challenges may be subdivided into these : — principal. 
 
 Propter honoris respecimn— -where a peer or lord of 
 parliament is sworn on a jury for the trial of a com- 
 moner. 
 
 Propter defectvm — that is, on account of some per- 
 sonal objection, as alienage, infancy, old age, or a want 
 of the requisite qualification. 
 
 Propter affectum — where there is supposed to be a 
 bias or prospect of partiality, as on account of the 
 relationship of a juror ; or where an actual partiality 
 is manifested, or where a juror has expressed an opinion 
 as to the result of the trial. 
 
 Propter delictum — if a person has been convicted of 
 an infamous crime (e.g., treason, felony, perjury, &c.), 
 and has not been pardoned, or has been outlawed (t). 
 
 Challenges for favour are made when there is reason- for favour. 
 able ground for suspicion (as if a fellow-servant be one 
 party), but there is not sufficient ground for a prin- 
 cipal challenge propter affectum. 
 
 The challenge to the polls is generally made orally. Trial ot the 
 and must be made before the juror has kissed the challenge. 
 book, though often the publicity of the matter is 
 avoided by previous intimation of the objection being 
 
 (0 34 & 35 Vict. c. 77, s. 10. 
 
376 
 
 THE PETTY JUEY. 
 
 Exclasion of 
 jurors by the 
 Crown. 
 
 made to the proper officer, and in such case probably 
 the juror objected to would not be called. How is the 
 validity of the challenge to be determined ? If it is a 
 principal challenge, by the court itself; if a challenge 
 for favour, by two jurors who have already been sworn. 
 But if the challenge for favour is of one of the first 
 two jurors, the court appoints two indifferent persons, 
 thence termed "triers," to try. the matter; but they 
 are superseded as soon as two are sworn on the jury. 
 Witnesses may be called to support or defeat the 
 challenge, and the person objected to also may be 
 examined, but not asked questions which tend to his 
 discredit. It should be noticed that, as a rule, a person 
 may challenge himself, upon which he may be ex- 
 amined on oath as to the cause. So the sheriff may 
 suggest the objection to his array on the ground of 
 his relationship, &c. 
 
 The Crown may order any number of persons called 
 as jurors to stand by, and has not to shew any cause 
 for excluding them, until the panel has been gone 
 through and it appears that there will not be left 
 enough jurors without those ordered to stand by (m). 
 
 So much for challenges for cause, to the number of 
 which there is no limit, and the rules as to which are 
 generally alike, both in criminal and civil cases. But 
 there is another kind of challenge known to the 
 criminal law alone. 
 
 Peremptory 
 challenge. 
 
 Peremptory Challenge. — In felonies the prisoner is 
 allowed to arbitrarily challenge, and so exclude, a 
 certain number of jurors without shewing any cause at 
 all. He cannot claim this right in misdemeanors (a;) ; 
 
 (ti) T. Mamell v. B., 27 L. J. (M.C.) 4. 
 
 (ic) " It is equally absurd that in the case of a trifling theft the prisoner 
 should have the right of peremptorily challenging twenty jurors, whilst a 
 man accused of perjury might see his bitterest enemy in the jury box, and 
 be unable to get rid of him as a juror, unless he could give judicial proof 
 of his enmity."— Fitz. St. 106. 
 
THE PETTY JURY. 
 
 377 
 
 but it is usual, on application to the proper officer, for 
 him to abstain from calling any name objected to by 
 the prosecution or defendant within reasonable limits ; 
 and this course has been sanctioned by the court («/). 
 
 The defendant may peremptorily challenge to the Number of 
 number of thirty-five in treason, except in that treason ^hSgesT 
 which consists of compassing the Queen's death by a 
 direct attempt against her life or person (z). In such 
 excepted case, in murder, and all other felonies, the 
 number is limited to twenty (a). If challenges are 
 made beyond the number allowed, those above the 
 number are entirely void, and the trial proceeds as if 
 no such extra challenge had been made (h). 
 
 The court itself may take out of the panel the 
 names of any jurors and insert others where such a 
 course is necessary (c). 
 
 If a sufficient number of jurors do not appear, or if Tales. 
 by means of challenges or exemptions a sufficient 
 number of unexceptionable ones do not remain, either 
 side may pray a tales, that is, a supply of smcA men as 
 are summoned upon, the panel, in order to make up the 
 deficiency (generally from the bystanders, tales de cir- 
 cumstantibus) ; but this course seems to require a war- 
 rant from the attorney-general (d). The usual course, 
 however, at the assizes, is for the judge to order the 
 
 (j/) The reasons which Blackstone assigns are (1) As every one must be 
 sensible what sudden impressions and unaccountable prejudices we are 
 apt to conceive upon the bare looks and gestures of another, and how 
 necessary it is that a prisoner should have a good opinion of his jury, the 
 want of which might totally disconcert him ; the law wills not that he 
 should be tried by anyone against whom he has conceived a prejudice, even 
 without being able to assign a reason for such dislike. (2) Because, upon 
 challenges for cause shewn, if the reason assigned prove insufficient to set 
 aside the juror, perhaps the bare questioning his indifference may sometimes 
 provoke a- resentment. — 4 Bl. 353. 
 
 (z) 39 & 40 Geo. 3, u. 93. 
 
 (a) 6 Geo. 4, .;. 50, s. 29. 
 
 (6) 7 & 8 Geo. 4, c. 28, s. 3. 
 
 (o) 6 Geo. 4, i>. 50, s. 20. 
 
 (d) 2 Hawk. c. 41, s. 18 ; 4 Bl. 355 : Arch. 164. 
 
378 
 
 THE PETTY JURY. 
 
 sheriff to return a new panel instanter, without further 
 precept ; and at sessions, for the justices to issue a 
 special precept commanding the sheriff to return a 
 sufficient number of jurors immediately. 
 
 Conduct of the When the jury have once been sworn they cannot 
 ^^^' leave the box without the leave of the court, and then 
 
 ' only in company with some officer of the court. If, in 
 consequence of being unable at once to come to a 
 conclusion, they obtain leave to withdraw in order to 
 consider their verdict, they are kept apart from any 
 one, under the charge of an officer, who is sworn not to 
 speak to them (except to ask them whether they have 
 agreed), or suffer any one else to do so. Their verdict 
 will be set aside if they speak with any one interested, 
 or cast lots as to which way they shall decide. In 
 these and other cases of delinquency they may be 
 fined. By leave of the court they may have reasonable 
 refreshment (e). If the trial is adjourned over night 
 in treason ot felonies, the jury retire in custody of the 
 sheriff and his officer, who are sworn to keep them 
 together. In misdemeanors they are allowed to go 
 home on engaging not to listen to anything spoken to 
 them as to the ease under trial. If during the trial, 
 before verdict is given, one of the jury dies, or is taken 
 so ill that he is not able to proceed with the trial, or 
 without permission leaves the box (/), the jury is dis- 
 charged and a new one sworn to try the case. Of 
 course in such an event the remaining eleven may, and 
 most frequently will, be in the new jury. 
 
 Special juries. We havc been hitherto referring to common juries. 
 But as in civil, so in criminal cases, special juries are 
 sometimes summoned. But this is only in misde- 
 meanors, where the record is in the Queen's Bench 
 Division, and only by permission of the court on 
 
 (e) V. 33 & 34 Vict. c. 77, s. 23. 
 (/) £. V. Wood, 10 Cox, 573. 
 
THE PETTY JURY. 
 
 379 
 
 motion of either the prosecutor or the defendant. The 
 party applying for a special jury must pay the extra 
 fees and expenses, unless the court certifies that it was 
 a proper case to he tried by a special jury. These 
 jurors are taken from a higher class than common 
 jurors, their qualifications being determined by sta- 
 tute (g). The instances of the trial of a criminal case 
 by a special jury are so rare, that we need not enter 
 into further particulars. 
 
 Another exceptional form of jury was, until lately. Jury de 
 sometimes demanded ; a jury de medietate lingum, 1^'^^*^ 
 Formerly, in cases of felony or misdemeanor, but not 
 of treason, an alien might claim his right to be tried 
 by a jury, half of whose number were aliens, or, at least, 
 if not half, as many as the town or place could furnish. 
 But this privilege was taken away by the Naturaliza- 
 tion Act, 1870 (h) ; and now an alien is tried as if he 
 were a natural born subject (*). 
 
 ((/) 33 & 34 Vict. c. 77, s. 6. 
 (A) 33 & 34 Vict. c. 14, s. 5. 
 
 (i) We hare already referred to another case of a so-called jury de 
 medietate linguce, v. p. 300. 
 
( 380 ) 
 
 CHAPTEE XIV. 
 
 THE HEAEING. 
 
 Swearing the Thb full Complement of jurors haying been obtained, 
 •'"^^' they are sworn ; or, if any of them on conscientious 
 
 grounds object to the oath, they make the statutory 
 declaration (j). The oath, and mode of taking it, differ 
 slightly in felonies and in misdemeanors. In felonies, 
 each juror is sworn separately in the following terms : 
 " You shall well and truly try, and true deliverance make, 
 letween our sovereign lady the Queen and the prisoner 
 at the iar, whom you shall have in charge, and a true 
 verdict give according to the evidence. So help you 
 God." In misdemeanors, four take hold of the book at 
 the same time, and four, or sometimes all, are sworn 
 together. The oath is : " You shall well and truly try 
 the issue joined letween our sovereign lady the Queen 
 and the defendant, and a true verdict give according to 
 the evidence. So help you Qod " (k). 
 
 Proceedings at After the jury are sworn, in cases of treason or 
 the hearing, felony, the crier at the assizes makes the following 
 proclamation : " If any one can inform m,y lords the 
 Queen's justices, the Queen's attorney-general, or the 
 Queen's serjeant, ere this inquest taken between owr sove- 
 reign lady the Queen, and the prisoners at the Iar, of 
 any treason, murder, felony, or misdemeanor, committed 
 
 (f) 30 & 31 Vict. c. 35, s. 8. 
 
 (/i) v. Fitz. St. p. 57, as to the historical cause of this distinction, the 
 terms of the oath in a misdemeanor shewing the resemblance of procedure 
 in a misdemeanor to that in a civil action ; that in felony reminding us of 
 the days " when the jury were both judges and witnesses, who reported on 
 the prisoner's guilt or innocence of their own knowledge." 
 
THE HEARING. 38-1 
 
 or done hy them, or any of them, let him come forth, and 
 he shall he heard ; for the prisoners stand at the har 
 upon their deliverance." The clerk of arraigns or of the 
 peace, having called the prisoner to the bar, says to 
 the jury : " Gentleman of the jury, the prisoner stands 
 indicted hy the name of John Styles, for that he on 
 the (reciting the substance of the indictment). Upon 
 this indictment he has heen arraigned, and upon his 
 arraignment he has pleaded that he is not guilty ; your 
 charge, therefore, is, to inquire whether he he guilty or 
 not guilty, and to hearken to the evidence." In mis- 
 demeanors, the jury are not thus charged. The counsel Course of 
 for the prosecution now opens the case to the jury, ^^^amination 
 stating the principal facts, which the prosecution intend 
 to prove. He then calls his witnesses ; who, having 
 been sworn, are examined by him, and then subjected 
 to cross-examination by the counsel for the defence ; 
 or, if the prisoner is not defended by counsel, to any 
 questions which the prisoner may put to them. The 
 counsel for the prosecution may re-examine on matters 
 referred to in the cross-examination. The court also 
 may, at any time, interpose, and ask questions of the 
 witnesses. After the case for the prosecution is closed, 
 it is ascertained whether the defence intend to call any 
 witnesses. If they do not, the counsel for the prosecu- 
 tion may address the jury a second time in support of 
 his case, for the purpose of summing up the evidence 
 against the prisoner (l) ; but this right will be exer- 
 cised only in exceptional cases, as where the evidence 
 materially differs from the counsel's instructions. But 
 if the prisoner ha.s witnesses whom he wishes to call, 
 his counsel opens the case for the defence, and calls 
 these witnesses in support thereof. They also are 
 subject to cross-examination by the counsel for the 
 prosecution, and re-examination by the counsel for the 
 defence on this cross-examination. The counsel for 
 
 (0 28 Vict. c. 18, a 2. 
 
382 
 
 THE HEARING. 
 
 the prisoner is now entitled, at the close of the exami- 
 nation of his witnesses, to sum up his evidence (?»). 
 
 After this address by the counsel for the defence, the 
 counsel for the prosecution has the right of reply. This 
 is in consequence of the defence having adduced evi- 
 dence, written or parol, in defence (but mere evidence 
 to character has not,' in practice, this result) ; for if he 
 has not done so, the address of the counsel for the 
 defence is the last. There is, however, one exception. 
 When the Attorney-General, or some one else as his 
 representative, is prosecuting, he has the right of reply, 
 although no evidence has been adduced for the de- 
 fence (n). If two prisoners are jointly indicted for the 
 same offence, and only one calls witnesses, the counsel 
 for the prosecution has the right to reply generally ; 
 but not if the offences are separate and the prisoners 
 might have been separately indicted (o). If the pri- 
 soner is not defended by counsel, he may cross-examine 
 the witnesses for the prosecution and examine his own 
 witnesses ; and, at the end of such examination, address 
 the jury in his own defence (p). And if one only of 
 two prisoners jointly indicted is defended by counsel, 
 the undefended one may cross-examine and examine as 
 above, and make his statement to the jury before or after 
 the address of the counsel for the other, as the court 
 thinks fit. If the prisoners jointly indicted are defended 
 by different counsel, each counsel cross-examines, and 
 addresses the jury in order of seniority at the bar ; or, 
 if the judge thinks desirable, in order of the names of 
 the prisoners on the indictment {q). If a prisoner 
 defended by counsel wishes to address the jury and 
 examine and cross-examine witnesses, he may do so ; 
 and his counsel may argue points of law, and suggest 
 
 (m) 28 Vict. c. 18, s. 2. 
 («) B. T. Toakley, 10 Cox, 406. 
 (o) B. V. Jordan, 9 C. & P. 118. 
 (p) See Appendix to this chapter. 
 
 (d) Arch. 167. But this point does not seem to be clearly settled, 
 B. V. Meadows,' 2 3m: (N.S.) 718. B. v. Holman, 3 Jur. (N.S.) 722. 
 
THE HEAEING. 383 
 
 questions to him in cross-examination ; but he cannot 
 have counsel to examine and cross-examine witnesses, 
 and reserve to himself the right of addressing the 
 jury {r). 
 
 It will simplify matters if we tabulate the steps in Order of pro- 
 the various cases which may occur. hearin^^ ** ^^^ 
 
 i. The prisoner defended hy coimsel, and adducing 
 evidence in defence. 
 
 Counsel for prosecution opens his case. 
 
 Counsel for prosecution examines his witnesses, 
 who may be then cross-examined and re-exa- 
 mined. 
 
 Counsel for defence opens his case. 
 
 Counsel for defence examines his witnesses, who 
 may be then cross-examined and re-examined. 
 
 Counsel for defence sums up his case. 
 
 Counsel for prosecution replies. 
 
 ii. Prisoner defended hy counsel, hut not adducing 
 evidence. 
 
 Counsel for prosecution opens his case. 
 
 Counsel for prosecution examines his witnesses, 
 who, &c. 
 
 Counsel for prosecution sums up his case (s). 
 
 Counsel for defence addresses the jury. 
 
 iii. Prisoner not defended hy covmsel, hut adducing 
 evidence. 
 
 Counsel for prosecution opens his case. 
 
 Counsel for prosecution examines his witnesses, 
 who, &c. 
 
 (r) B. V. White, 3 Camp. 97. 
 (s) T. p. 381. 
 
384 
 
 THE HEARING. 
 
 Prisoner examines his witnesses, who, &c. 
 Prisoner addresses the jury. 
 Counsel for prosecution replies. 
 
 iv. Prisoner not defended h/ counsel, and not ad- 
 ducing evidence. 
 
 Counsel for prosecution opens his case. 
 
 Counsel for prosecution examines his witnesses, 
 who, &c. 
 
 Prisoner addresses the jury. 
 
 The summing- The Only other proceeding before the jury consider 
 "^' their verdict is the summing-up by the judge, or, at 
 
 the sessions, by the chairman or recorder. The object 
 of this is to explain the law as applicable to the case 
 under trial, and to marshal the evidence so that it may 
 be more readily understood and remembered by the 
 jury. He first states to them the substance of the 
 charge against the prisoner ; he then, if necessary, ex- 
 plains to them the law upon the subject. ; he next reads 
 the evidence which has been adduced in support of the 
 charge, making occasionally such observations as may 
 be necessary to connect the evidence, to apply it to the 
 charge, and to render the whole plain and intelligible 
 to the jury ; he then states the defence, and the evi- 
 dence given on the part of the defendant; and he 
 usually concludes by telling the jury that, if upon con- 
 sidering the whole of the evidence they entertain a fair 
 and reasonable doubt of the guilt of the prisoner, they 
 should give the prisoner the benefit of that doubt, and 
 acquit him (t). 
 
 (f) Arch. Q. S. 619. In an American case it has been decided that a 
 judge may, when the evidence is clear and uncontradicted, and the character 
 of the witnesses unshaken, tell the jury that it is their duty to convict. 
 Commonwealth v. Magee, 12 Cox, 549. 
 
 The summing up of the judge " may, and generally does, indicate his 
 opinion, but it is an opinion which is the result of the evidence laid before 
 him, and not of an independent inquiry." — Fitz. St. 161. 
 
THE HEAEING. 385 
 
 APPENDIX (Fitz. St. 196). 
 
 " The common run of criminal trials passes some- Examination of 
 what thus : Ten or twelve awkward clowns, ' looking,' ^"°«^f « ^Y 
 
 ' O! the prisoner, a 
 
 as an eminent advocate once observed, ' like overdriven farce, 
 cattle,' are crowded together in the dock. Their minds 
 are confounded by formulas about challenging the jury, 
 standing on their deliverance, and pleading to the in- 
 dictment : the case is opened, and the witnesses called 
 by a man to whom the whole process has become a 
 mere routine, and whose very coolness must confuse 
 and bewilder ignorant and interested hearers. After 
 the witness has been examined, comes a scene which 
 most lawyers know by heart, but which I can never 
 hear without pain. It is something to the following 
 effect :— 
 
 " Judge. — ' Do you wish to ask the witness any 
 questions ?' 
 
 " Prisoner. — ' Yes, sir. I ask him this, my lord. I 
 was walking down the lane with two other men, for I'd 
 heard ' 
 
 " Judge. — ' No, no, that's your defence. Ask him 
 questions. You may say what you please to the jury 
 afterwards ; but now you must ask him questions.' 
 
 " In other words, the prisoner is called upon, with- 
 out any previous practice, to throw his defence into a 
 series of interrogatories, duly marshalled, both as to 
 the persons to be asked and as to the subjects to be 
 inquired into ; an accomplishment which trained law- 
 yers often pass years in acquiring imperfectly. After 
 this interruption has occurred three or four times in 
 the course of a trial, the prisoner is not unfrequently 
 reduced to utter perplexity and forgetfulness, and 
 thinks it respectful to be silent." 
 
 2 
 
( 386 ) 
 
 CHAPTEE XV. 
 
 THE WITNESSES. 
 
 Grounds of 
 incompetency 
 now reduced. 
 
 FoEMEELY many more classes of persons were excluded, 
 as incompetent, from giving evidence, than are at the 
 present day. An objection to the testimony of a wit- 
 ness generally operates in another way now. Instead 
 of excluding it altogether, the ohjection weakens the 
 testimony and prevents the jury from placing ordinary 
 credit in it ; at the same time giving them the oppor- 
 tunity of gathering therefrom as much truth as possible. 
 Thus, it has been provided by statute that no person 
 offered as a witness shall be excluded by reason of in- 
 capacity from crime or interest from giving evidence («) ; 
 two grounds of incompetency which formerly prevailed. 
 However, even now a person under sentence of death is 
 incapable of giving evidence {x). 
 
 Forms of in- The forms of incompetency at present existing 
 
 competency. ^^^ . 
 
 1. Incompetency of the accused, and the wife or 
 husband. 
 
 2. Incompetency from want of understanding. 
 
 3. Incompetency on account of the relationship of 
 legal adviser. 
 
 Though incompetency from want of religious belief 
 may be regarded as a thing of the past, it is important 
 to notice it. 
 
 (m) 6 & 7 Vict. c. 85, s. 1. 
 (a;) S. V. Webb, 11 Cox, 133. 
 
THE WITNESSES. 387 
 
 1. Incompetency of accused, and ihejwife or husband. 
 
 It is a general principle of English law that no one incompetency 
 is bound to criminate himself {nemo tenetur prodere f^^^^'f' """^ 
 seipsum). In other words, the accused cannot be ex- consort. 
 amined as a witness either for the prosecution or the 
 defence. It is obTious that if he were examined as a 
 witness in his own defence, being subjected also to 
 cross-examination by the counsel for the prosecution, 
 he might be compelled to answer questions which 
 would criminate himself (y). There is at least one 
 exception to this principle. The case referred to is 
 under the Merchant Shipping Act, 1875 (z), where it is 
 provided that one accused of sending an unseaworthy 
 ship to sea may give evidence in the same manner as 
 any other witness, for the purpose of shewing that he 
 used all reasonable means to make and keep the ship 
 seaworthy, &c. (a). 
 
 In some cases a wrongdoer is not excused from 
 answering questions on the ground that his answer 
 may tend to criminate himself; but on his making full 
 disclosure he is shielded from all ill consequences ; for 
 example, 17 & 18 Yict. c. 38, s. 5. 
 
 Defendants jointly indicted and given in charge to Fellow prisoner 
 the jury, and being tried together, cannot be called as gaUed'as^ 
 witnesses for or against each other. But, as we have witness. 
 seen (6), the course is sometimes adopted of applying 
 for an acquittal of one of the co-defendants, in order to 
 
 (i/) The interrogation of prisoners, subject to certain provisions, is 
 recommended by Sir James Stephen. See Gen. View Crim. Law, 189, 
 where the whole subject is entered into, and where the system of non- 
 interrogation is shewn to be of modern date. The reader will remember 
 that the interrogation of prisoners is one great feature of French criminal 
 procedure. 
 
 (2) 38 & 39 Vict. c. 88, s. 4; v. p. 138. 
 
 (a) The first instance in modern times oi a prisoner being examined 
 occurred at the Liverpool Spring Assizes, 1876, when the innovation gave 
 rise to some very severe condemnatory remarks by Mr. Justice Brett. 
 
 (6) v. p. 359. 
 
 2 2 
 
388 THE WITNESSES. 
 
 make him a witness for the prosecution, and the other 
 defendants cannot object to this (c). If a second person 
 is indicted with the design of closing his mouth and 
 preventing him from giving evidence, the court may- 
 direct his acquittal, if there is no evidence to affect 
 him, or may order him to be tried separately, so that 
 his testimony may be admitted. A defendant who has 
 pleaded guilty may be examined as a witness for or 
 against his co-defendants, even before he has received 
 sentence. 
 
 Incompetency Husband and wife. — ^In treating of the evidence of a 
 consorr^ ^ wife, it may be understood that the same rules, mutatis 
 mutandis, apply to the evidence of a husband. 
 
 The wife cannot be a witness for or against her 
 husband. Not only this, but she cannot be a witness 
 for any other person indicted jointly with her husband, 
 where her testimony would tend to her husband's 
 acquittal, though only remotely, as, for instance, 
 merely by shaking the evidence of a witness {d). And 
 if several prisoners, jointly indicted, are being tried 
 together, the wife of one of them cannot be called as a 
 witness for or against any of the prisoners (e). But to 
 bring the case under this incompetency or exception, 
 the parties must have been actually married; mere 
 cohabitation will not suffice. 
 
 Exceptions. There are two exceptions to this principle, one of 
 
 which is doubtful. 
 
 (a.) In high treason it is said that husband and wife 
 may be witnesses against each other, but no instance 
 can be given (/). 
 
 (c) B. V. Rowland, Ry. & M. 401. 
 
 (d) B. V. Smith, 1 Mood. C. C. 289. 
 
 (e) B. V. Thompsm, h. E. 1 C. C. R. 377 ; 41 L. J. (M.C.) 112. 
 (/) V. Rose. 129. B. V. Qriggs, T. Raym. 1 (an obiter dictum). 
 
THE WITNESSES. 389 
 
 (b.) In cases of personal injury {e.gi., assault) by 
 husband to wife, and vice versa. 
 
 In bigamy, of course the so-called second wife is a 
 competent witness ; also in forcible abduction and 
 marriage, the marriage here being inyalid, the parties 
 may give evidence against each other. 
 
 No other relationship entitles to exemption. Parents 
 and children, brothers and sisters, masters and servants 
 may be, and constantly are, called to give evidence for 
 or against each other. 
 
 2. Incompetency from want of understanding. 
 
 Generally the same rules which serve to render a incompetency 
 person incapable of committing a crime, apply to ex- ° ' "''^' 
 elude a person from being a witness. Thus an idiot or 
 a lunatic, unless in an interval of sanity, is incom- 
 petent, it being the province of the court to ascertain 
 whether a person is able to understand the nature of 
 an oath and to give evidence. Persons deaf and dumb, 
 or dumb only, may give evidence through an in- 
 terpreter. 
 
 As to children, the rule is somewhat different from Children, 
 that which prevails when the question is whether the 
 child is responsible for its acts. An infant under the 
 age of seven is incapable of committing a crime, but it 
 is competent to give evidence at any age, if it satisfies 
 the test, namely, if it has sufficient intelligence to 
 understand the nature and obligation of an oath (ff). 
 The judge frequently, before allowing a child to be 
 sworn, questions it as to its belief in God, knowledge 
 of the consequences of telling a lie, &c. 
 
 (g) V. Fitz. St. 287, as to the evidence of children, though frequently 
 based on imagination, having too much weisiht, on account of the sympa- 
 thies of the jury. 
 
390 
 
 THE WITNESSES. 
 
 Incompetency 3. Ineompetency on aceount of the relationship of legal 
 
 of legal 
 adviser. 
 
 adviser. 
 
 Counsel, solicitors, and their agents are not obliged, 
 nor are they allowed without the consent of their 
 clients, to giye evidence of communications, written or 
 parol, made to them by their clients in their pro- 
 fessional capacity. And it is not material whether the 
 communications were made in the case under trial, or 
 not, nor whether the client he a party to the cause. 
 But of course they may be witnesses on points which 
 do not come within the sphere of professional confiden- 
 tial communications ; for example, to prove their 
 client's handwriting or his identity. This privilege 
 does not apply to a medical attendant, a conveyancer, 
 a priest, nor indeed to any others than those mentioned 
 above. 
 
 Certain facts In some cases the court will not compel or allow the 
 not disclosed, ^igdosure of a particular fact, if such disclosure may 
 be of detriment to the public service, and does not 
 bear directly upon the matter in question, for example, 
 evidence disclosing the channels through which infor- 
 mation reaches the government Qi). 
 
 Ineompeteney from want of religious lelief (i). 
 
 Religious belief Formerly a person who had no religious belief which 
 and incom- -j^g deemed binding upon his conscience to speak the 
 truth upon oath could not be a witness. But now this 
 incompetency appears to have been done away with by 
 a recent statute (/<;), which provides that those who 
 object to taking an oath, or are objected to as incom- 
 petent to take an oath, the court being satisfied that 
 the taking of an oath would have no binding effect on 
 their conscience, shall make a promise and declaration 
 
 (A) V. Hardy's Case, 24 How. St. Tr. 753. 
 
 («) For a full discussion of the question, v. Omiohund v. Barker, Willes, 
 538 ; 1 Smith's Leading Cases. 
 (/() 32 & 33 Vict. c. 68, s. 4. 
 
THE WITNESSES. 391 
 
 in the prescribed form : — " I solemnly promise and 
 declare that the evidence given hy me to the court shall he 
 the truth, the whole truth, and nothing hut the truth." 
 Any person who, having made this declaration, wil- 
 fully and corruptly gives false evidence, is liable to be 
 indicted, tried, and convicted as if he had taken an 
 oath. For some time those who had some religious 
 belief, but who conscientiously objected to oaths, such 
 as Quakers, Moravians, and Separatists, had been ad- 
 mitted as witnesses on their making the statutory form 
 of solemn affirmation or declaration (Z). 
 
 The form of oath varies according to the creed of the Forms of oath 
 witness. In the case of an ordinary Christian, the ^™°5. '°^ 
 witness, holding the New Testament in his bare right 
 hand, is thus addressed by an officer of the court : — 
 " The evidence you shall give to the court and jury, sworn 
 hetween our sovereign lady the Queen and the prisoner at 
 the har, shall he the truth, the whole truth, and nothing 
 hut the truth. So help you God." He then kisses the 
 book. Jews are sworn on the Pentateuch, keeping 
 their hats on, the oath concluding with " So help you 
 Jehovah." In the case of others, the form which they 
 consider binding is resorted to ; thus a Chinese may be 
 sworn by means of a cracked saucer (m). 
 
 The objection to the competency of a witness should Objection to 
 be made before he has been examined in chief, unless, of ™i^n^|^adl' 
 course, the incompetency appears only on examination. 
 
 CEEDIBILITY OF WITNESSES. 
 
 As we have already seen, instead of altogether ex- Elements 
 eluding a witness on account of some supposed bias, t^e*™™bifit 
 the course generally adopted is to admit his evidence, of witnesses. 
 allowing the circumstances causing suspicion to affect 
 
 (0 V. 3 & 4 Wm. i, u. 49 ; 3 & 4 Wm. 4, u. 82 ; 1 & 2 Vict. c. 77 ; 
 24 & 25 Vict. c. 66. 
 (m) V. Best, Ev. 230. 
 
392 
 
 IHE WITNESSES. 
 
 his credibility. The great canon as to the credit of 
 witnesses is, that it is for the jury to form their 
 opinion thereon, as on any other fact. " The credi- 
 bility of a witness is compounded of his knowledge of 
 the facts he testifies, his disinterestedness, his in- 
 tegrity, his veracity, and his being bound to speak the 
 truth by such an oath as he deems obligatory. Pro- 
 portioned to these is the degree of credit his testimony 
 deserves from the court and jury " (n). 
 
 We have just noticed the means taken to secure the 
 most stringent obligation by oath or affirmation. 
 
 Knowledge of 
 witnesses. 
 
 As to Ttnowledge. — It will be important to consider 
 on what the witness bases his conclusion; what op- 
 portunities he had of satisfying himself; what were 
 the surrounding circumstances, whether they were 
 such as to conduce to a correct opinion ; for example, 
 whether it was light or dark, &c. 
 
 Disinterested- 
 ness of 
 witnesses. 
 
 As to disinterestedness. — Here should be considered 
 the relationship of the prisoner and witness, natural or 
 otherwise ; the advantage or disadvantage that would 
 accrue to the witness on the prisoner's conviction ; 
 prejudices, quarrels, &c. (o). 
 
 Veracity of 
 witnesses. 
 
 As to veracity. — The chief mode in which the veracity 
 of a witness is impeached is by shewing that at some 
 former time he has said or written, or, what is more 
 damaging, sworn, something not agreeing with or op- 
 posed to that which he now swears. As to the manner in 
 which he may thus be confronted with his former allega- 
 tions, it is provided by 28 Yict. c. 18 that if, on cross- 
 examination, a witness does not admit having made a 
 former statement, proof may be given that he did make 
 it; but before such proof can be given, the circumstances 
 
 in) Arch. 296. 
 
 (o) As to the evidence of accomplices, v. p. 395. 
 
THE WITNESSES. 393 
 
 of the supposed statement, sufficient to designate the 
 particular occasion, must be mentioned to the witness, 
 and he must be asked whether or not he has made 
 such a statement (p). If the statement has been in 
 writing, he may be cross-examined as to it without 
 the writing being shewn to him ; but if it is intended 
 to contradict him by the writing, his attention must, 
 before such contradictory proof can be gjven, be called 
 to those parts of the writing which are to be used for 
 the purpose of so contradicting him. But this does 
 not prevent the judge from inspecting and making 
 such use of the writings as he thinks proper (q). 
 The writing most frequently used to impeach the 
 testimony of a witness is his deposition taken before 
 the magistrate. 
 
 As to general character. — It has been noticed above Character of 
 that a person is a competent witness although he has ™''°'===«^' 
 been convicted of a crime ; but of course that fact will 
 carry weight with the jury. To weaken the testimony 
 of a witness, either one of two courses may be taken. 
 The witness may be cross-examined as to his delin- 
 quencies, or (b) other witnesses may be called to prove 
 his generally bad reputation. After considerable con- 
 flict between the authorities, it seems to be settled 
 that a witness may be asked questions with regard 
 to alleged crimes or other improper conduct; but 
 that he is not compelled to answer them if such 
 answer would tend to expose him to a criminal charge, 
 or to a penalty or forfeiture of any kind (r). And the 
 court will decide whether the witness has shewn 
 reasonable grounds for believing that the answer will 
 tend to criminate him (s). But all other questions 
 must be answered, however strongly they may reflect 
 on the witness's character. And a denial of improper 
 
 (p) 28 Vict. c. 18, 3. 4. 
 
 (?) Ibid. 5. 5. 
 
 (r) V. 2 Taylor's Evidence, Part III. u 
 
 (s) S. V. Boyes, 30 L. J. (Q.B.) 301. 
 
394 THE WITNESSES. 
 
 conduct by the witness is conclusive, and he cannot be 
 contradicted by calling other witnesses, unless of course 
 the fact be relevant to the issue (t). A witness may be 
 questioned as to whether he has been convicted of a 
 felony or misdemeanor, and, if he does not admit it, the 
 cross-examining party may prove the conviction (u). 
 In order to shew the general bad character of the 
 witness, almost any question may be asked as to his 
 past life. It is left to the discretion and good feeling 
 of the bar not to exceed the limits required by the 
 necessities of the case, by wantonly taking away a 
 person's character (so). When other witnesses are 
 called to shew the bad character of the witness, the 
 object is to shew that the former, from their acquaint- 
 ances with the latter, are of the opinion that he is not 
 to be believed on oath. But they may not be examined 
 as to any particular offences which are alleged against 
 the witness. On the other hand, witnesses may be 
 called to testify to the general good character of the 
 witness, if that is questioned. 
 
 NUMBER OF WITNESSES. 
 
 Cases where In all cases, both before the grand jury and at the 
 wUnesi'u ™° *^^*^' ^^^ witnoss for the prosecution is sufficient, 
 required. with the following exceptions :— 
 
 1. In treason or misprision of treason (except where 
 the overt act alleged is the assassination of the Queen, 
 or any direct attempt against her life or person) two 
 witnesses are required, unless the prisoner confesses. 
 And both of the witnesses must testify to the same 
 overt act of treason ; or one of them to one overt act, 
 and another to an overt act of the same species of 
 
 (f) Tewin's Case, 2 Camp. 638. It has heen doubted whether such dis- 
 crediting questions must be answered, if they are not otherwise material 
 to the issue. 
 
 (m) 28 Vict. c. 18, s. 6. 
 
 {x) V. Fitz. St. 296. 
 
THE WITNESSES. 395 
 
 treason (y). But of course collateral facts may be 
 proved by one witness. 
 
 2. In perjury there must be two witnesses. Both 
 need not necessarily directly contradict what the 
 accused has sworn ; it will suffice if the second cor- 
 roborates in any material circumstance, by circum- 
 stantial evidence or otherwise, what' the first has 
 said (z). The reason usually assigned for this excep- 
 tion is that otherwise there would only be oath against 
 oath ; but more probably the expediency of protecting 
 witnesses, and thus furthering the ends of justice, is 
 the true ground (a). 
 
 It will be convenient here to notice the evidence of Evidence of 
 accomplices. Naturally it is viewed with suspicion, ^°™™P "'°^' 
 inasmuch as, on the one hand, the accomplice may 
 hope to gain favour and leniency by assisting the 
 prosecution ; on the other hand, he will often be 
 anxious to shield his companions. In practice, though 
 not in strict law, it is deemed essential that the evi- 
 dence of the accomplice should be corroborated in some 
 material part by other evidence, so that the jury may 
 be led to presume that he has spoken the truth gene- 
 rally. This confirmatory evidence must be unim- 
 peachable ; so that the evidence of another accomplice 
 or his wife will not suffice. And the confirmatory 
 evidence should not be merely to the fact of the act 
 having been committed, but should extend to the 
 identification of the prisoner with the party con- 
 cerned (b). 
 
 How is the attendance of witnesses procured ? In Attendance oi 
 both felonies and misdemeanors the witnesses examined ■^''''«=s«^- 
 are usually bound over by recognizance by the com- 
 
 (y) 7 & 8 Wm. 3, c. 3, ss. 2, 4. 
 (») V. cases, &c., Best, Ev. 755. 
 (a) Best, Ev. 752. 
 (6) iJ. V. Farler, 8 C. & P. 106. 
 
396 
 
 THE WITNESSES. 
 
 mitting magistrate to appear at the trial and give 
 evidence. If they do not appear, the recognizances 
 may be estreated and the penalty levied. AH other 
 witnesses may he compelled to attend by subpoena. 
 This may be issued either at the Crown office in 
 London, or by the clerk of assize, or clerk of the peace 
 at sessions. A copy of the writ is served upon the 
 witness personally, the original writ being shewn to 
 him. 
 
 Pioduction of If a Written instrument, required as evidence, is in 
 witn^ses'.^ ^'^ the possession of some person, he is served with a 
 subpoena duces tecum, ordering him to bring it with 
 him to the trial. Unless he has some excuse, allowed 
 to be valid by the court, he must produce it at the 
 trial. Such lawful excuses are the following: that 
 the instrument will tend to criminate the person pro- 
 ducing it ; that it is his title-deed. 
 
 Consequences In the evcut of the uou- appearance of a witness in 
 tL°sM6°mM°^ answer to a subpoena, he incurs certain penalties. If 
 the writ has been sued out of the Crown office, the 
 Queen's Bench, upon application, will grant an attach- 
 ment for the contempt of court. In other cases, the 
 proceedings must be by way of indictment (e). But 
 to render a witness subject to these penalties, he must 
 have been served personally, and served a reasonable 
 time before trial. If his expenses have not been 
 tendered, and he is so poor as not to be able to go to 
 the trial, this will probably be allowed by the court as 
 a sufficient excuse. 
 
 Attendance of If the witucss is in custody, the proceedings are 
 
 isTn'cust'ody." different. If in criminal custody, a secretary of 
 
 state, or any judge of the superior courts, may, on 
 
 application by affidavit, issue a warrant or order under 
 
 his hand for bringing up such person to be examined 
 
 (c) V. Arch. 309. 
 
THE WITNESSES. 397 
 
 as a witness (d) ; or his attendance may be secured by 
 a writ of habeas corpus ad testificandum. If in civil 
 custody, a writ of hob. corp. ad test, is obtained upon 
 motion in court or application to a judge in chambers, 
 founded upon an affidavit stating that he is a material 
 witness. If the evidence of a person in court is re- 
 quired, he is bound to give it, although he has not been 
 subpoenaed. 
 
 A witness, whether subpoenaed or bound over by Witnesses' 
 recognizance, either to prosecute or give evidence, is ^^J.^j^^^ '^""" 
 privileged from arrest whilst attending the trial on 
 every day of the assizes or sessions until the case is 
 tried ; also for a reasonable time before and after trial 
 whilst coming to or returning from the place of trial. 
 
 As we have seen, preventing a witness from attend- 
 ing or giving evidence is a contempt of court; and 
 intimidating a witness from giving evidence for the 
 prosecution is a misdemeanor (e). 
 
 As to witnesses' expenses. — In felonies, the court may Expenses of 
 order the payment to the prosecutor and his witnesses Jhe" otoLctI- 
 of a reasonable sum for expenses, trouble, and loss of tion. 
 time; and this whether the result of the trial be a 
 conviction, or acquittal, or no bill be found (/). And 
 although no bill be preferred, a like reasonable sum 
 may be ordered to be paid to those who iondfide attend 
 the court in obedience to their recognizances or svh- 
 poena. The amount to be paid for the attendance 
 before the examining magistrate must be ascertained 
 by the certificate of the magistrate granted before the 
 trial {g). Further, if a charge is made hona fide on 
 reasonable and probable cause, although there has been 
 no commital for trial, the magistrate before whom the 
 
 (d) 16 & 17 Vict. c. 30, s. 9. 
 («) V. p. 89. 
 
 (/) 7 Geo. 4, c. 64, ss. 22, 24, 25. 
 (3) Ibid. s. 22. 
 
398 
 
 THE WITNESSES. 
 
 accused was brought and examined may grant to any 
 witness examined a certificate of his expenses (h). 
 
 In very many cases of misdemeanor there is a like 
 power of ordering payment of witnesses' expenses. 
 The particular misdemeanors will he found mentioned 
 in 7 Geo. 4, c. 64, s. 23 ; 14 & 15 Vict. c. 55, ss. 2, 3 ; 
 and other statutes which deal with individual offences. 
 Each of the Criminal Consolidation Acts provides that 
 the court before whom any indictable misdemeanor, 
 punishable under such Act, is prosecuted or tried, may 
 allow the expenses of witnesses, as in felony ; and in 
 prosecutions by the treasury in coinage offences shall 
 allow such expenses (»). 
 
 In a similar manner, in certain indictable .offences 
 dealt with by the magistrates in the exercise of their 
 summary jurisdiction, the magistrate may order the 
 payment of witnesses' expenses (h). 
 
 Expenses of 
 witnesses for 
 the defence. 
 
 Payment of 
 costs by the 
 defendant. 
 
 So much as to witnesses for the prosecution. The 
 court has, however, also discretionary power to order 
 the payment of the expenses of witnesses for the 
 prisoner who appear after having been bound by 
 recognizance by the examining magistrate to give 
 evidence (l). 
 
 In the event of a conviction for treason or felony, 
 the court may order the prisoner to pay the whole or 
 part of the costs of the trial ; and in cases of assault 
 the defendant, on conviction, may be made to pay the 
 prosecutor's costs and a reasonable allowance for loss 
 
 (A) 29 & 30 Vict. 0. 52 (a temporary statute since continued yearly). 
 This statute applies also to misdemeanors. 
 
 (0 24 & 25 Vict. 0. 96, s. 121 ; u. 97, s. 77 ; c. 98, ». 54 ; u. 99, ». 42 ; 
 c. 100, s. 77. 
 
 (k) 10 & 11 Vict. c. 82, 3. 14 (juvenile offenders); 18 & 19 Vict. c. 126, 
 s. 14 (small larcenies); 31 & 32 Vict. i;. 116, s. 2 (embezzlement). 
 
 (0 30 & 31 Vict. c. 35, ». 5. 
 
THE WITNESSES. 399 
 
 of time (m). It will be remembered that in cases 
 under the Vexatious Indictments Act the prosecutor 
 may, at the discretion of the court, be required to pay 
 the defendant's costs on the acquittal of the latter («) ; 
 and also that, in private prosecutions for the publish- 
 ing of a defamatory libel, if judgment is given for 
 the defendant, he may recover costs from the prose- 
 cutor (o). 
 
 (m) 33 & 34 Vict. c. 23, s. 3. 
 
 (n) V. p. 345. 
 
 (o) 6 & 7 Vict. c. 96, ». 8 ; v. p. 111. 
 
( 400 ) 
 
 CHAPTEE XVI. 
 
 THE EXAMINATION OF WITNESSES. 
 
 This is a subject on which, though a wide latitude is 
 allowed to counsel, some rules may be laid down as 
 directly authorized, others as developed in and sanc- 
 tioned by practice. 
 
 General course We have already noticed the general course of the 
 ''^"™'°*'''"'- examination of witnesses (p) ; namely, that the wit- 
 nesses for the prosecution are first examined in chief 
 by the counsel for the prosecution, and then cross- 
 examined by the counsel for the defence ; and after the 
 case for the prosecution has closed, then the witnesses 
 for the defence are examined by the counsel for the 
 defence, and cross-examined by the counsel for the 
 prosecution ; in each case the witness being re-examined 
 by the party calling him, if it is thought desirable. It 
 should also be reniembered that the court may at any 
 time put such questions as it thinks fit to the witness, 
 even after he has left the witness-box; and that if, 
 after the counsel has finished his examination or cross- 
 examination, he thinks of some other question which 
 ought to have been asked, that question can be put 
 only through or by leave of the court. Through the 
 court, also, are asked questions which occur to the 
 jury. 
 
 What wit- All the witnesses whose names are on the back of 
 
 nesses sho 
 be called. 
 
 nesses should ^j^^ indictment should be called by the counsel for the 
 
 prosecution; and although he does not ask them any 
 
 (p) v. p. 381. 
 
THE EXAMINATION OF WITNESSES. 401 
 
 question, or even call them, the defence may have them 
 called, so that they may be subjected to cross-exami- 
 nation. But in such a case the counsel for the prose- 
 cution may re-examine (q). 
 
 When any collusion is suspected among the witnesses, Witnesses 
 or it is thought that any of them will be influenced by "ft.'utt.""' 
 what they hear from counsel or other witnesses, those 
 who have not yet been examined are ordered to leave 
 the court until they are wanted, and after examination 
 they are required to remain in court. The judge will do 
 this, either at his own instance, or on the application 
 of the opposite party. If the order be disobeyed, the 
 witness may be punished as for his contempt; but, 
 though the disobedience will be matter of remark for 
 the jury, the judge has no right to reject his testi- 
 mony (r). 
 
 At the outset it will be well to ascertain the position Functions, &c., 
 of the counsel for the prosecution and for the defence foj.*the°pro-^' 
 respectively, their functions and conduct, their respec- seoution ; 
 tive parts, and the spirit in which they should conduct 
 them. It is needless to observe that it is not the 
 object of the counsel for the prosecution to get a con- 
 viction at any price. It is his duty to see that the 
 case against the prisoner is brought out in all its 
 strength ; but it is not his duty to conceal, or in any 
 way diminish the importance of, its weak points. His 
 function is not to inquire into the truth, but to put 
 forward, with all possible candour and temperance, 
 that part of it which is unfavourable to the prisoner (s). 
 
 On the other hand, the counsel for the prisoner has of the counsel 
 
 for the 
 prisoner. 
 
 before him, as his object, the acquittal of the prisoner. 
 
 His duty is to act as an advocate, and not to any 
 
 (q) R. V. Edwards, 3 Cox, 82 ; B. v. JBeezlen, 4 C. & P. 220. 
 (r) B. V. Colley, Moo. & M. .329. 
 (s) Fitz. St. 160. 
 
 2 D 
 
402 
 
 THE EXAMINATION OF WITNESSES. 
 
 extent as a, judge. He is to put himself in the place 
 of the accused, and so is not under any obligations 
 which the accused would not be under. Thus, he is 
 not obliged to divulge facts with which he may be 
 acquainted which are unfavourable to the prisoner (t). 
 
 Witness The rules as to examination-in-chief and cross- 
 
 favourabit°to^ examination are generally the same, whether the wit- 
 
 the side ness be for the prosecution or the defence. They are 
 
 ing im. ija^gg^ upon the supposition that the witness called and 
 
 presented by the party examining him is favourable to 
 
 his side, and therefore unfavourable to his opponent. 
 
 If this should turn out not to be the case, the rules of 
 
 cross-examination apply to the examination of one who 
 
 thus proves hostile to the party producing him. 
 
 Examination- 
 in-cliief. 
 Questions 
 must be 
 relevant. 
 
 Examination-m- Chief. — What questions may be put 
 to a witness ? In the first place, only such as are 
 relevant to the matter in issue, and which, if answered 
 in the way desired by the examiner, will tend to prove 
 the offence or defence. Of course, if circumstantial 
 evidence is resorted to, greater latitude will be allowed ; 
 inasmuch as it is not so easy to estimate the relevancy 
 of the question. 
 
 Leading 
 questions not 
 allowed. 
 
 The second great rule is, that leading quesiions may 
 not be asked in examination-in-chief. What is a lead- 
 ing question ? One which in any way suggests to the, 
 witness the answer which the person asking requires. 
 Thus, to ask a witness, " Had the prisoner a white hat 
 on ?" would be a leading question ; but the question, 
 " What sort of a hat had the prisoner on ?" would not 
 
 (f) " The counsel for the Crown may not use arguments to prove the 
 guilt of the prisoner which he does not himself believe to be just, and he 
 is bound to warn the jury of objections which may diminish the weight of 
 his arguments. In short, as far as regards his own evidence, his speech 
 should as much as possible resemble the summing up of the judge. The 
 counsel for the prisoner may use arguments which he does not believe to 
 be just. It is the business of the jury, after hearing the judge, to say 
 whether or not they are just.'' — Fitz. St. 168. 
 
THE EXAMINATION OP WITNESSES. 
 
 403 
 
 be. Unless, indeed, the point to be proved was 
 
 whether he had or had not a hat on. It is often given 
 
 as a test whether a question be leading or not, whether 
 
 it might be answered by "Yes" or "No." But this test 
 
 is by no means decisive ; all questions which may be thus 
 
 answered not being leading, and other questions than 
 
 those which may be so answered being equally leading. 
 
 Thus the question, " Could the prisoner hear what he 
 
 said ?" is not leading ; whereas " What did he do with 
 
 the purse?" is leading, because it implies that the 
 
 person to whom it relates dealt with the purse in some 
 
 way or other (u). Though the rule is, that leading When leading 
 
 questions may not be put in examination-in- chief, t^asked! ™*'' 
 
 there are certain exceptions, some allowed as of right, 
 
 others for convenience' sake. 
 
 (a.) For the purpose of identifying persons or things 
 which have already been described, the attention of the 
 witness may be directly pointed to them (»). 
 
 (b.) When a witness is called to contradict another, 
 who has sworn to a certain fact, he may be asked in 
 direct terms whether that fact ever took place. 
 
 (c;) When the witness is, in the opinion of the 
 judge, hostile to the party calling him. 
 
 (d.) When the witness is unable to answer general 
 questions from defective memory, or the complicated 
 nature of the matter as to which he is interrogated (y). 
 
 ^ Leading questions are also not objected to — 
 
 (a.) When merely introductory, so as to save time. 
 
 (b.) When the particular matter is not disputed. 
 Thus, where a witness having deposed to a fact has 
 not been cross-examined on it, questions may be put 
 which assume that fact. 
 
 (w) Fitz. St. 280. 
 
 (x) /?. V. Watsm, 2 Starkie, N. P. C. 128. 
 
 (2/) Best, Et. 804. 
 
 2 D 2 
 
404 
 
 THE EXAMINATION OF WITNESSES. 
 
 Witness must 
 testify from 
 his own 
 knowledge. 
 
 Refreshing 
 his memory. 
 
 A third general rule is, that the evidence of the 
 witness must relate to what is immediately within his 
 knowledge and recollection. But there is one exception 
 to this rule. In matters of science, skill, travel, &c., 
 the evidence of experts is allowed, that is, persons who 
 have a special knowledge of the branch in question 
 may be called to give their opinion as to the conse- 
 quences, &c., of facts already proved. For example, if 
 the wounds of a murdered person are described, a 
 surgeon may be asked his opinion as to whether they 
 caused the death ; but, of course, it will be for the 
 jury to determine how far they will adopt this 
 opinion (z). In accordance with the general rule, a 
 witness is not allowed to read his evidence. But he is 
 allowed to refresh his memory by referring to any 
 writing made by himself, or examined by him, soon 
 after the event to which it refers, provided that after 
 he has thus refreshed his memory he can swear to the 
 fact from his own recollection. 
 
 Contents of 
 a written 
 document, 
 how proved. 
 
 A fourth general rule is, that the contents of a written 
 document cannot be proved orally if the document is 
 capable of being produced, but must be proved by the 
 document itself. But if it be shewn that it is lost, 
 destroyed, or in possession of the prisoner who has had 
 notice to produce it, other evidence may be given of 
 its contents (a). 
 
 Consequences 
 of witness 
 proving 
 hostile. 
 
 Another matter to be noticed is the hostility of one's 
 own witness. It is a rule that a counsel cannot dis- 
 credit his own witness ; it is also, as we have seen, a 
 rule that leading questions may not be put in examina- 
 tion-in-chief. But it is provided by statute (h) that 
 although a party producing a witness is not allowed to 
 impeach his credit by general evidence of bad charac- 
 
 («) S. V. Wright, R. & R. 456. 
 
 (a) V. p. 412. 
 
 (b) 28 Vict. 0. 18, s. 3. 
 
THE EXAMINATION OP WITNESSES. 405 
 
 ter, he may, in case the witness, in the opinion of the 
 judge, proves adverse {i.e , hostile), contradict him by- 
 other evidence, or, by leave of the judge, prove that at 
 other times he has made a statement inconsistent with 
 his present testimony ; but before such last-mentioned 
 proof can be given, the circumstances of the supposed 
 statement, sufficient to designate the particular occa- 
 sion, must be mentioned to the witness, and he must 
 be asked whether or not he has made such statement. 
 So, also, if, in the opinion of the judge, the witness is 
 keeping back some of the truth, iu order to favour the 
 prisoner or otherwise, he may allow the cross-examin- 
 ing counsel to ask leading questions, and generally io 
 treat the witness as hostile. 
 
 Gross-examination. — Inasmuch as a witness is sup- Cross- 
 posed to be inclined to favour the party calling him, examination, 
 greater powers are given to the cross-examining 
 counsel. He may ask leading questions, and in this 
 way remind the witness of anything which may tend 
 to help the cause of the opposite party. But if the 
 witness proves anything favourable to the cross-ex- 
 aminer, the fact that the evidence was procured by 
 leading questions will, of course, diminish its value. 
 The counsel will not, however, be allowed to put into 
 the witness's mouth the very words he is to echo back 
 again (c). In cross-examination the questions will be 
 of two classes : (a) Those which tend directly to refute 
 or explain what has been given in evidence in the ex- 
 amination-in-chief ; (b) Those whose object is to affect 
 the credit of the witness. 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 (d). It is needless to add that a 
 cross-examining counsel should avoid asking questions 
 the answer to which, if unfavourable, would be condu- 
 
 ce) B. V. Ifardy, 24 How. St. Tr. 765. 
 Id) R. V. HodgMns, ■? C. & P. 298. 
 
406 
 
 THE EXAMINATION OP WITNESSES. 
 
 sive against him. And he should always remember 
 that the story of the witness, if true, will be confirmed 
 the more he is questioned about it ; and this although 
 there may be slight discrepancies on immaterial points. 
 
 Re-examina- 
 tion. 
 
 Be-examination. — The object of the re-examination, if 
 it be judged expedient to have recourse to it, is to inquire 
 into and explain what has transpired on cross-examina- 
 tion. But it must be strictly confined to such matter ; 
 the re-examiner may not ask questions which he might 
 and ought to have put on examination-in-chief. 
 
 - Questions put Any further questions after re-examination must be 
 judge.^ ^ V^^ through the judge ; also through him any ques- 
 tions which occur to counsel after they have finished 
 their examination or cross-examination (e). 
 
 Objections to 
 questions, 
 how made. 
 
 If any improper question, e.gt., irrelevant or leading, 
 in examination-in-chief be put, the counsel on the 
 other side should immediately interpose and object to 
 it before the witness has time to answer it. Though 
 in the case of a leading question this will often be in- 
 efiectual, inasmuch as the mischief has been done by 
 the suggestion being made. The counsel in the same 
 way should interpose if parol evidence is given when a 
 document should be produced. 
 
 (e) V. p. 381. 
 
( 407 ) 
 
 CHAPTER XVII. 
 
 EVIDENCE. 
 
 " Eyidence includes all the legal means, exclusive of Definition of 
 mere argument, which tend to prove or disprove any ^'^"^^°'=<'- 
 matter of fact the truth of. which is submitted to 
 judicial investigation " (/). 
 
 In ascertaining the law on the subject of evidence 
 in general, four or five heads present themselves under 
 which may be ranged the chief principles which it is 
 necessary to consider : — 
 
 1. On whom the burden of proof lies. 
 
 2. What must be proved, and what may not be 
 
 proved. 
 
 3. The best evidence must always be given. 
 
 4. Hearsay is not evidence. 
 
 5. Confessions, under certain circumstances, are 
 
 not admitted as evidence. 
 
 1. The lurden of proof is on the prosecution as a The burden 
 rule. The prosecution must prove their case before °^j^^"° 'the* 
 the prisoner is called upon for his defence ; and this, prosecution. 
 although the offence alleged consists of an act of 
 omission and not of commission, and therefore the pro- 
 secution have to resort to negative evidence (^). The 
 law considers a man innocent until he is shewn to be 
 
 (/) 1 Tayl. Ev. 1. 
 
 ((/) There is an exception to this rule when the accused pleads specially, 
 e.g., autrefois acquit. 
 
408 
 
 EVIDENCE. 
 
 Qualifications guilty. But the principle under discussion must not 
 to the oreiM ^^ ^^ Understood with unlimited signification. Though 
 prob^ndi. the burden of proof of the charge is in general on the 
 prosecution, yet on particular points it is on the pri- 
 soner. This is markedly the case in some offences. 
 Thus, by various Acts of Parliament it is declared 
 penal to do certain things, or possess certain articles, 
 without lawful excuse or authority; such excuse or 
 authority must be proved by the accused. For ex- 
 ample, to possess public stores marked with the broad 
 arrow {h) ; to possess coining tools («'). Again, it lies 
 on the defendant to prove that signals to smuggling 
 vessels were not made for the purpose of giving illegal 
 notice (Jc) ; also to shew some justification for sending 
 an unseaworthy ship to sea (I). But it will be noticed/ 
 that in all these cases there is something to be proved 
 in the first instance by the prosecution — either the 
 possession of the goods, the unseaworthiness of the 
 ship, &c. 
 
 In some cases And not only in the particular cases of which we 
 iTexS^d*"'" ^^^^ given examples, but in most cases of circum- 
 stantial evidence " there is a point (though it is impos- 
 sible to determine exactly where it lies) at which the 
 prosecutor has done all that he can reasonably be 
 expected to do, and at which it is reasonable to ask for 
 evidence from the prisoner in explanation, and to draw 
 inferences unfavourable to him from its absence " (m). 
 Thus the court will naturally expect from the prisoner 
 an explanation of the object for which poison was pur- 
 chased ; so also in the case of recent possession of stolen 
 goods. Killing is presumed to be murder until other- 
 wise accounted for. 
 
 from the 
 prisoner. 
 
 What must be 
 proved. 
 
 2. What must he proved?— All facts and circum- 
 
 (A) V. 38 & 39 Vict. c. 25. 
 (0 24 & 25 Vict. c.'99, s. 24. 
 Ik) 16 & 17 Vict. c. 107, s. 245. 
 (0 38 & 39 Vict. 0. 88, s. 4. 
 (m) Fitz. St. 303. 
 
EVIDENCE. 409 
 
 stances stated in the indictment which cannot be 
 rejected as surplusage ; in other words, all the consti- 
 tuents of the offence. Though, as we shall see here- 
 after, if a more serious crime contains, as it were, a less 
 serious one, the prisoner indicted for the former may 
 sometimes be convicted of the latter, if the more serious 
 circumstances cannot be established ; thus on an indict- 
 ment for murder, if the malice prepense be not proved, 
 the prisoner may be convicted of manslaughter. 
 
 We have seen above (w) in what cases the time and As to time 
 place must be correctly stated in the indictment (o) ; ^""^ P''"^"- 
 and thus we now know when they must be correctly 
 proved. But in any case the offence must be proved to 
 have been committed within the extent of the court's 
 jurisdiction. Any material variance between the fact Amendment 
 laid in the indictment and the fact proved will be fatal, °f ™-'*'"=«- 
 unless amended (p). 
 
 Closely connected with the question " what must be Facts, &c., 
 proved ?" is the question " what may not be given in ^^ given m °°* 
 evidence ?" As a rule, nothing must be given in evi- evidence. 
 dence which does not directly tend to prove or disprove 
 the matter in issue. The previous or subsequent bad 
 character of the prisoner may not be proved ; unless to 
 rebut evidence of good character (g). Thus, also, if As to other 
 other true bills are found against the prisoner, theoreti- °^^'^''^^- 
 cally this is not supposed to influence the judge or 
 jury (r). Nor may it be proved that he has a general 
 disposition to commit the particular kind of offence. 
 Again, it is not allowable to prove a man' guilty of one 
 felony in order to prove him guilty of another uncon- 
 nected with it. In other words, if the offences are 
 
 (n) V. p. 324. 
 
 (o) ». p. 325. 
 
 (p) V. p. 326. 
 
 (a) V. S. V. Eowton, 3i L. J. (M.C.) 57. 
 
 M Howevev, as both the judge and jury are supplied with calendars, 
 they cannot help noticing that there are other charges against the prisoner. 
 It would be well if the jury, at least, were not so supplied ; they know 
 perfectly well without a calendar what they are to give their verdict on. 
 
410 
 
 EVIDENCE. 
 
 When evidence 
 of other 
 offences may 
 be given : 
 In treason. 
 
 To prove 
 
 gnilty 
 
 knowledge. 
 
 In cases of 
 receiving. 
 
 distinct, evidence of one offence is, in general, inadmis- 
 sible on the trial of the prisoner for another offence. 
 But if they are connected, and form one entire transac- 
 tion, other offences may be proved to shew the character 
 of the transaction. If the evidence is admissible on 
 general grounds as being relevant, it cannot be excluded 
 merely because it discloses other offences (s). 
 
 There are exceptions to the rule excluding evidence 
 of other offences :— 
 
 (a.) In treason, other overt acts may be given in evi- 
 dence, if they directly prove any overt acts which are 
 laid. And in conspiracy, sedition, libel, and similar 
 offences, wide limits are given to the reception of evi- 
 dence, inasmuch as the offence can only be estimated 
 by the surrounding circumstances (i). 
 
 (b.) When it is necessary to prove the guilty knowledge 
 of the defendant, evidence may be given of his having 
 committed the same offence before. Thus, on an indict- 
 ment for uttering forged bank notes, or for uttering 
 counterfeit coin, evidence may be given of the defen- 
 dant's having at other times uttered or had in his 
 possession other forged bank notes or counterfeit coin. 
 So it seems that the guilty knowledge of the falsehood 
 of a pretence may be shewn by evidence of a previous 
 obtaining or attempting to obtain by false pretences (m). 
 Under the Prevention of Crimes Act, 1871 (x), when 
 proceedings are taken against a person for receiving or 
 having in his possession stolen goods, evidence may be 
 given at any stage of the proceedings of the defendant's 
 having had in his possession, within the preceding 
 twelve months, other stolen property; and evidence 
 may also be given, under the same circumstances, of his 
 previous conviction, within five years, of any offence 
 involving fraud or dishonesty. 
 
 (s) Rose. 90 ; v. R. v. Salisbury, 5 C. & P. 155. 
 (t) V. R. V. Eunt, 3 B. & Aid. 566 ; R. v. Pearce, Peake, 75. 
 (m) R. v. Francis, L. R. 2 C. C. R. 128 ; 43 L. J. (M.C.) 97. 
 Xx) 34 & 35 Vict. 0. 112, s. 19. 
 
EVIDENCE. 411 
 
 (c.) When it is necessary to prove malice or intent on To shew 
 the part of the defendant, evidence of other offences may, '"'^°'- 
 under some circumstances, be given. Thus, in a trial 
 for murder, evidence of former unsuccessful attempts or 
 threats to murder would be admissible. 
 
 As to evidence of good character. — Witnesses may be Evidence 
 called to speak generally to the good character of the °\^''°\ 
 prisoner ; but they may not give evidence of particular 
 acts, unless such evidence tends directly to the disprov- 
 ing of some of the facts put in issue by the pleadings. 
 The evidence must be to the general reputation for 
 good character, and not to the witness's own opinion. 
 The way in which the information is elicited is by 
 questions of this sort: "How long have you known 
 the prisoner ?" " During that time, what has been his 
 general character for sobriety, honesty and industry ?" 
 
 General evidence of good character may be disproved of bad 
 by general evidence of bad character ; but not by '^''^»'^'='^''- 
 particular cases of misconduct. However, for such pur- 
 poses, previous convictions may as a rule be proved («/). 
 
 It is important to notice in what way evidence of Effect of 
 previous good character operates : " Judges frequently chlracter" 
 tell juries that evidence of character cannot be of use 
 when the case is clearly proved, except in mitigation 
 (or, possibly, aggravation) of punishment ; but that, if 
 they have any doubt, evidence of character is highly 
 important " (2). 
 
 (y) T. 6 & 7 Wm. 4, c. Ill ; 24 & 25 Vict. c. 96, s. 116 ; 24 & 25 Vict, 
 c. 99, s. 37. 
 
 (z) Fitz. St. 312. " This always seems to me to be equivalent to saying, 
 ' If you think the prisoner guilty, say so ; and if you think you ought to 
 acquit him independently of the evidence of character, acquit him rather 
 more readily because of it.* Evidence of character would thus be super- 
 fluous in every case. The trne distinction is, that evidence of character 
 may explain conduct, but cannot alter facts. I do not disbelieve a credible 
 witness because the man whose hand he swears he saw in his neighbour's 
 pocket has a very high character for honesty ; but 1 do not draw the in- 
 ference from the fact which I should draw in most cases, namely, that there 
 existed a felonious intent. 1 ascribe the act to some innocent motive." — Ibid. 
 
412 
 
 EVIDENCE. 
 
 Best evidence 
 must be given. 
 
 The case of 
 
 written 
 
 documents. 
 
 Hearsay, 
 no evidence. 
 
 3. The best evidence must always be given. That is, 
 if it is possible to be had ; if not, then inferior evidence 
 will be admitted. But before this inferior (or secondary) 
 evidence is let in, the absence of the better evidence 
 must be accounted for. By this is meant that merely 
 substitutionary evidence, that is, such as indicates more 
 original sources of information, must not be received so 
 long as the original evidence is attainable. It does not 
 imply that weaker proofs (which are not substitutionary) 
 may not be selected instead of stronger ones. Thus, an 
 act may be equally proved by a written instrument, and 
 also by some one who saw it ; both these modes of proof 
 are primary. 
 
 The most common application of this rule is in the 
 case of written instruments. It is plain that the best 
 evidence of the contents of a written document is the 
 writing itself, and therefore before a copy, or parol 
 evidence, of its contents can be received, the absence 
 of the original instrument must be accounted for, by 
 proving that it is lost or destroyed, or that it is in the 
 possession of the opposite party, and that he has had 
 reasonable notice to produce it. If once secondary 
 evidence is admitted, any proof may be given, as there 
 are no degrees of secondary evidence ; thus, if an ori- 
 ginal deed cannot be produced, parol evidence of its 
 contents may be given, although there is an attested 
 copy in existence. But, for the sake of convenience, 
 copies may be given, in evidence of all records, other 
 than those of the court requiring proof of them, of 
 journals of either House of Parliament, and generally 
 of the official documents of other courts, and parish 
 registers, entries in corporation books and books of 
 public companies relating to things public and general. 
 
 4. Hearsay is no evidence. 
 
 Hearsay (derivative, or second hand, as opposed to 
 secondary) evidence is that which is learnt from some 
 one else, whether by word of mouth or otherwise ; in 
 
EVIDENCE. 413 
 
 other words, it is anything which does not derive its 
 value solely from the credit given to the witness him- 
 self, but which rests also, in part, on the veracity and 
 competence of some other person (a). 
 
 The reasons usually assigned for the rejection of hear- Hearsay, 
 say evidence are two : (a) that the original statement ™ ^ '^«jecte . 
 or writing was not made on oath ; (b) that the party 
 affected has not the opportunity of cross-examining the 
 originator of it. Its reception would also have the 
 effect of lengthening the proceedings without any cor- 
 responding advantage. We have seen that secondary When it may 
 evidence can be given only where there has been an ^^if^ng" '° 
 explanation of the absence of the best evidence ; second- 
 hand evidence cannot be given at all, subject to the 
 following exceptions (6) : — 
 
 i. To prove the death of a person beyond the sea. 
 
 ii. To prove a prescription, a custom; matters of 
 pedigree ; reputation on questions of public or general 
 right. 
 
 iii. When the hearsay is what the witness has been 
 heard to say at another time, in order to invalidate or 
 confirm his testimony given in court. 
 
 iv. Declarations made by persons under the sensible 
 conviction of their impending death. Such declara- 
 tions are admitted only when the death of the deceased 
 is the subject of the charge (that is, in cases of murder 
 or manslaughter), and only if the declaration refers to 
 the injury which is the cause of death. 
 
 V. Statements made by deceased persons, if against 
 their interest ; or entries made by them in the regular 
 course of their duty or employment. 
 
 (a) 1 Ph. Ev. 183. 
 
 (b) " All the exceptions to the rule are based upon the principle that 
 the special circumstances which establish them supply a sanction to the 
 statement, and exclude the possibility of calling the person who made it." 
 — Fitz. St. 319. 
 
414 EVIDENCE. 
 
 vi. When the bodily or mental feelings of a person 
 are material to be proved, the usual expressions of such 
 feelings, made at the time in question, are admissible 
 as original evidence (c) ; for example, what was said to 
 a surgeon immediately after an assault (d). 
 
 vii. When the sayings, &o'., of another are part of 
 the res gestse, that is, of the general transaction, and 
 are not merely a medium of proof of another fact. 
 Thus, the cries of a person being stabbed, of a mob, 
 are good evidence (e). In fact, these are not strictly 
 instances of hearsay evidence at all, but the original 
 proofs of what took place. 
 
 Depositions of It will be Convenient here to notice the rule that if 
 ill or deceased ^ witness is dead, or too ill to travel (or kept out of 
 
 persons may ^ ' ^ \ r 
 
 be read at the Way, as against the person so keeping him out) (/), 
 the trial. j^^^ depositions may be read, provided that such depo- 
 sitions were taken in the presence of the accused, and 
 that he had an opportunity of cross-examining the 
 witness (g). 
 
 Confessions, 5. Confessions, under certain circumstances, are not 
 
 admitted as evidence. 
 
 when admitted Coufessions, if received at all in evidence, are re- 
 in evidence, cgiyed. with great caution, not only from the considera- 
 tion that, owing to insanity or other reason, they may be 
 false, but also there is the danger of their not having 
 been correctly reported. The general rule is, that to 
 be admissible they must be free and voluntary. What 
 amounts to a free and voluntary confession does not 
 clearly appear. " Thus muck is certain, that no con- 
 fession by the prisoner is admissible which is made in 
 consequence of any inducement of a temporal nature, 
 
 (c) 1 Tayl. Et. 630. 
 
 (d) A veson v. Loj'd KinTiaird^ 6 East, 198. 
 
 (e) V. 21 How. St. Tr. 514, 529. 
 (/) R. V. Scaife, 2 Den. 281. 
 
 (g) 11 & 12 Vict. c. 42, s. 17. So, also, as to depositions on behalf of 
 the ac'iisi'd, 30 & 31 Vict. c. 35. s. 3. 
 
EVIDENCE. 
 
 415 
 
 having reference to the charge against the prisoner, 
 held out by a person in authority ; and on the whole, 
 the tendency of the present decisions seems to be to 
 admit any confessions which do not come within this 
 proposition" {h). 
 
 Confessionary evidence is admissible only against the Against whom 
 person who makes it, though, of course, if the jury admitted"hi^'^° 
 hear anything in it against accomplices, it will be apt evidence. , 
 to prejudice them against such co-defendants. In the 
 same way, if a confession is improperly blurted out 
 where it is not admissible, it cannot but have weight 
 with the jury. 
 
 With regard to confessions or statements before the Confessions 
 magistrate, it is provided by statute (*) that after the „^aglstrates. 
 examination of all the witnesses for the prosecution, 
 one of the magistrates shall have all the depositions 
 against the accused read to him, and shall then say to 
 him these words, or words to the like effect : " Having 
 heard the evidence, do you wish to say anything in 
 answer to the charge ? You are not obliged to say 
 anything unless you desire to do so, but whatever you 
 say will be taken down in writing, and may be given 
 in evidence against you upon your trial." The magis- 
 trate gives a further caution that the accused has 
 nothing to hope from any promise of favour, and nothing 
 to fear from any threat which may have been holden 
 out to induce him to make any confession or admission 
 of his guilt. But this second caution is necessary only 
 when it appears that some inducement has been holden 
 out to the accused (h). The statement of the prisoner 
 thus made before the magistrate is read at the trial 
 from the depositions without further proof. 
 
 It will be remembered that a witness is not com- witness not 
 
 bound to 
 ' ' """" criminate 
 
 (A) Rose. 40. himself, 
 
 (i) 11 & 12 Vict. u. 42, s. 18. 
 (k) R. V. Sansome, 19 L. J. (M.C.) 143. 
 
416 EVIDENCE. 
 
 pelled to answer questions which tend to criminate 
 himself. By several statutes, though they- are obliged 
 to answer the questions, the evidence given by wit- 
 nesses is expressly declared not available against them 
 on a criminal charge, for example, under the Corrupt 
 Practices Prevention Act, 1863 (Z). 
 
 CIROUMSTANTIAL AND PRESUMPTIVE EVIDENCE. 
 
 Circumstantial It is usual to distinguish two kinds of evidence, 
 from'direct^ D«Veci or Positive, Gircumstantial or Presumptive. By 
 evidence. the former we mean the evidence given by a person 
 who testifies to having actually seen, &c., the act consti- 
 tuting the crime committed; the proof applying im- 
 mediately to the factum probandum, without any 
 intervening process. All other evidence is termed 
 indirect, presumptive or circumstantial; being evi- 
 dence of facts from which the fact of the crime may be 
 inferred ; it applies to collateral facts which contribute 
 to the conclusion that the principal fact exists. Thus, 
 if a witness proves that he saw the prisoner cut A.'s 
 throat, or put his hand into B.'s pocket, draw out his 
 purse, and run away, the evidence is direct. But if 
 the witness proves that the prisoner was seen going to 
 B.'s house at 4 o'clock, that there was no other person 
 in the house at the time, that at 4.15 B.'s throat was 
 found cut, and that a blood-stained knife was found 
 concealed in B.'s locked box, the evidence is circum- 
 stantial. 
 
 Fineness of the It is di£&cult to draw the line between direct and 
 distinction. circumstantial evidence. This will be seen more 
 readily from an example. A. stabs B. in three places ; 
 it is not known in consequence of which of the wounds 
 death ensues. C. sees A.'s hand raised to strike one of 
 these blows. Is his evidence to be regarded as direct 
 or circumstantial as to the murder ? In other words, it 
 
 (0 26 Vict. c. 29, s. 7. For other examples, v. Tayl. Ev. 1261. 
 
EVIDENCE. 
 
 is often impossible to draw the line between the prin- 
 cipal fact and subsidiary facts (m). And if it were 
 possible clearly to distinguish, what would be the ad- 
 vantage ? It is certainly incorrect to say that direct 
 is stronger than circumstantial evidence. It may be 
 that in the former there is not the danger involved in 
 drawing the inferences which are incidental to the 
 latter ; but, on the other hand, in the latter more facts 
 are brought on the carpet by a greater number of 
 witnesses, and thereby any mistake is much more 
 likely to be exposed (n). 
 
 417 
 
 The so-called circumstantial evidence is said to be Circumstantial 
 
 evidence, con- 
 clusive or 
 presumptive. 
 
 Of two kinds:- ^:ir"'- 
 
 Conclusive, when the connection between the prin- 
 cipal and evidentiary facts is a necessary conseq^uence 
 of the laws of nature ; as in an 
 
 (m) " It is impossible to say specifically of any crime which is the prin- 
 cipal fact. In murder, is the principal fact the conception of malice in the 
 mind, or the infliction of bodily injury, or the death in consequence ? 
 Unless all these take place there is no murder. These facts may occur at 
 times and places remote from each other. Are there three principal 
 facts ?"— Fitz. St. 267. 
 
 (n) " There is no sort of difference between the cogency of the different 
 liinds of evidence, whether the comparison is made between weak cases or 
 strong ones. Compare two strong cases. How is it possible to say 
 whether the evidence of several credible witnesses, who say they saw a 
 man put his hand into another man's pocket, and take out his purse and 
 run away, is stronger or weaker than that of the same number of equally 
 respectable witnesses who ^jrove that the parse was taken, and that imme- 
 diately afterwards the prisoner was seen running away, and on being 
 stopped was found to have the purse in a, secret pocket, no explanation 
 being given ? Or take too weak cases. A man swears that he was robbed 
 on a dark night, and that the prisoner is the man who robbed him. The 
 light by which he saw him was the reflection of a furnace a long way off, 
 which would cast a light at once strong and unsteady, and the robber was 
 exposed to it only for a moment. A sack is stolen, and is found three 
 months afterwards, apparently concealed, in the house of a marine store 
 dealer. He says something on the subject which may be, and probably is, 
 a lie. Other people had access to the place when the sack was found. 
 Which of these cases is the stronger of the two ? Their relative strength 
 cannot be shewn to depend in any way on the properties of either direct or 
 circumstantial evidence as such." . . . Circumstantial " is, in short, n 
 word useful only for the sake of puzzling juries, and providing them 
 with a loophole for avoiding" a painful but most important duty." — Fitz. 
 St. 273. 
 
 2 E 
 
418 EVIDENCE. 
 
 Presumptive, when it only rests on a greater or less 
 degree of probability (o). Such evidence is termed 
 " presumptive," inasmuch as the fact of the crime is 
 to be presumed from certain other facts. 
 
 Presumptions Prcsumptions, or inferences of other facts from facts 
 which are already admitted or proved, are sometimes 
 divided into violent, probable, slight or rash, according 
 as the facts presumed necessarily, usually, or otherwise 
 attend the fact proved. A more scientific classification 
 is into Presumptions : — 
 
 i. Juris ei dejure, 
 
 ii. Juris. 
 
 iii. Facti or nominis. 
 
 The last of these is the kind of presumption pro- 
 duced by evidence in the way we have noticed. The 
 other two must be explained : — 
 
 Prcesumptio i. Juris et de jwe. — Presumptions of this character 
 juris et dejure. ^j.^ absolute, Conclusive, and irrebutable. No evidence 
 is allowed to be given to the contrary. For example, 
 an infant under the age of seven is incapable of com- 
 mitting a felony. Every person knows the law. 
 
 Prcesumptio ii. Juris. — Presumptions which are conditional, in- 
 juris. conclusive, and rebutable. They only hold good until 
 
 the contrary is proved. For example, a child between 
 the age of seven and fourteen is presumed to be in- 
 capable of committing a felony ; but only till it is 
 proved that he had a mischievous discretion. A person 
 is presumed to be innocent till he is shewn to be 
 guilty. Malice is presumed from the act of killing, 
 unless its absence be shewn. 
 
 (o) Best, Ev. 25, 400. 
 
EVIBENCE. 419 
 
 WKITTEN EVIDENCE. 
 
 Written documents may be divided into three Written 
 classes ; differing as to the manner in which they ^^' *°°'^" 
 must be given in evidence and proved : — 
 
 i. Eecords. 
 
 ii. Matters quasi of record. 
 
 iii. Written documents of a private nature. 
 
 i. Eecords.— 'E'usii, as to Acts of Parliament. Public Acts of 
 statutes do not need any proof ; the court is bound Pa»''ia™e">t- 
 judicially to take notice of them. And all Acts passed 
 since February 4th, 1851, are to be taken as public 
 Acts unless the contrary be expressly provided (p). 
 Private Acts must be proved by an examined copy of 
 the parliament roll; or by a copy purporting to be 
 printed by the Queen's printers. As regards proof, 
 general customs of the realm are on the footing of 
 public Acts ; particular customs on that of private Acts. 
 
 As to other records. — Inasmuch as the records of the other records. 
 various courts are frequently required to be given in 
 evidence, perhaps in two places at the same time, and 
 thus inconvenience would arise, as well as the danger 
 of destruction or loss ; and inasmuch as the whole com- 
 munity is interested in their preservation, alteration 
 is not to be feared, the production of the originals is 
 not required {q). Their place is supplied by an ex- 
 emplification of the record under the Great Seal, or 
 under the seal of the court, or by a copy sworn to be 
 true by a person who has compared it with the original. 
 But a mere copy will not suffice if the matter of the 
 record forms the gist of the pleading, e.g., on a plea of 
 autrefois acquit. A copy of a copy will never suffice. 
 
 (p) 13 & 14 Vict. c. 21, ss. 7, 8. 
 (g) V. Best, Ev. 616. 
 
 2 E 2 
 
420 
 
 EVIDENCE. 
 
 Previous 
 conviction, 
 how proTted, 
 
 In certain cases not even a copy of the whole record 
 is required. Thus, to prove a previous conviction or 
 acquittal, it is sufficient that it be certified, or purport 
 to be certified, under the hand of the clerk of the court, 
 or other officer having the custody of the records of 
 the court where such conviction or acquittal took 
 place, or by the deputy of such clerk or officer, that 
 the paper produced is a copy of the record of the 
 indictment, trial, conviction, and judgment, or acquit- 
 tal, as the ease may be, omitting the formal parts 
 thereof (»•). And, further, it has been provided that a 
 previous conviction may be proved in any legal pro- 
 ceeding by producing a record or extract of such con- 
 viction, and by giving proof of the identity of the 
 person against whom the conviction is sought to be 
 proved with the person appearing in the record or 
 extract of conviction to have been convicted. A record 
 or extract in the case of an indictable offence is ex- 
 plained to be a certificate of the indictment and convic- 
 tion of the nature of that described in 14 & 15 Vict. 
 c. 99, s. 13 ; and in case of a summary conviction con- 
 sists of a copy of the conviction, purporting to be 
 signed by any justice of the peace having jurisdiction 
 over the offence in respect of which such conviction was 
 made, or to be signed by the proper officer of the 
 court by which such conviction was made, or by the 
 clerk or other officer of any court to which such con- 
 viction has been returned. And there is no need to 
 prove the signature or official character of the person 
 whose signature appears (s). 
 
 Matters ?«asi ii. Matters quasi of record. — "Without going into 
 
 of record, detail, it may be said generally that the proceedings, 
 
 not being records, of any of the divisions of the High 
 
 Court, or of the ecclesiastical courts, may be proved by 
 
 (r) 14 & 15 Vict. c. 99, s. 13. See also 7 & 8 Geo. 4, c. 28, 5. 11 ; 
 24 & 25 Vict. c. 96, s. 116 ; u. 97, o. 70 ; c. 99, s. 37. 
 (s) 34 & 35 Vict. .J. 112, ». 18. 
 
EVIDENCE. 421 
 
 copies. In county courts the proceedings are to be 
 proTed by an entry in the clerk's book, or a copy bear- 
 ing the seal of the court, and purporting to be signed 
 and certified as a true copy by the clerk of the 
 court (t). In other inferior courts the proof is by 
 producing the books in which the entry has been made, 
 or by an examined copy. In bankruptcy, a copy of 
 the Gazette containing an adjudication of bankruptcy 
 is conclusive evidence of the bankruptcy (m). 
 
 "We have already noticed the provision which is Perpetuating 
 made for the reading of the depositions for or against *f ^ testimony 
 the prisoner in the case of a witness who is dead or too ' 
 
 ill to travel (as). To perpetuate the testimony which 
 can be given by a person whose death is apprehended, 
 it is provided that — if it appear to some justice of the 
 peace, and in the opinion of a registered medical prac- 
 titioner, that some person is not likely to recover, and 
 is able to give material information relating to an 
 indictable offence, and it be not practicable to take the 
 depositions in the ordinary way — the justice may take 
 in writing the statement on oath or affirmation of the 
 person who is ill, opportunity being given to the other 
 party (prosecution or accused) to cross-examine the 
 deponent. Having observed the formalities prescribed 
 by the statute, such depositions are transmitted to the 
 proper quarter. And if on the trial of the offender it 
 is proved that the deponent is dead, or will not in all 
 probability ever be able to travel or give evidence, the 
 statement may-be read in evidence {y). 
 
 iii. Written documents of a private nature. — As to Deeds, &c., 
 deeds. — As a general rule, if they are to be given in ^°^ p™ved. 
 evidence, they must be produced themselves at the 
 trial. But in cases of accidental loss, and others arising 
 
 (0 9 & 10 Vict. c. 95, s. 111. 
 
 (li) 32 & 33 Vict. u. 71, ». 10. See also Arch. 263-265. 
 
 (a;) V. p. 414. 
 
 (y) 30 &31 Vict. i;. 35, s. fi, 
 
422 
 
 EVIDENCE, 
 
 from necessity, the contents may be proved by copies 
 or other secondary evidence. And so also if other 
 written documents are lost, secondary evidence may be 
 received, if the genuineness of the original instrument 
 is proved at the same time (z). 
 
 The manner of the proof of the execution of deeds 
 and other written instruments is the same. If the 
 instrument is one to the validity of which attestation 
 is requisite, it must be proved by a subscribing witness. 
 But to this rule there are several exceptions, for ex- 
 ample, if the witnesses be dead, insane, &c. (a). But if 
 the instrument is not one which requires attestation, 
 even though it be actually attested, it need not be 
 proved by the attesting witness (6), but may be proved 
 by simple proof of the party's handwriting. 
 
 Handwriting, Handwriting may be proved in several ways : — 
 
 how proved. 
 
 (a.) By one who has seen the party write (ex visu 
 
 (b.) By one who has carried on a correspondence, or 
 had other opportunities of getting acquainted with his 
 writing {ex scriptis oUm visis). 
 
 (c.) By comparison with documents known and ad- 
 mitted to be in the handwriting of the party (ex scripfo 
 nunc viso, or ex eomparatione scriptorum). It is pro- 
 vided by statute that comparison of a disputed writing 
 with any writing proved to the satisfaction of the 
 judge to be genuine shall be permitted to be made by 
 witnesses, and such writings, and the evidence of 
 witnesses respecting the same, may be submitted to 
 the court and jury as evidence of the genuineness or 
 otherwise of the writing in dispute (c). 
 
 (z) V. p. 412. 
 (o) T. Arch. 283. 
 (h) 28 Vict. c. 18, s. 7. 
 (c) Ibid. s. 8. 
 
EVIDENCE. 423 
 
 It may be useful to notice the chief points in which Points in 
 differences exist between the rules of evidence in civil J^^^^^^^l^^ °^ 
 and criminal cases (d) : — civil and in 
 
 criminal cases 
 
 1. In the latter in some cases more than one witness '^''^"■• 
 is required (e). 
 
 2. Confessions — when admitted — when conclu- 
 sive (/). 
 
 3. A party to a cause may be a witness, but a 
 prisoner on his trial may not. 
 
 4. The husband or wife of a party in a civil action 
 may give evidence for or against his consort ; but, as a 
 rule, such evidence is excluded in criminal cases (g). 
 
 5. The use of the depositions of witnesses prevented 
 from attending in person Qi) ; and their use to contra- 
 dict the witness at the trial itself {i). 
 
 6. In cases of homicide, the dying declaration of the 
 deceased is admitted in evidence as to the cause of 
 death (k). 
 
 7. Witnesses to character are allowed in criminal 
 cases. 
 
 ((f) v. 4 St. Bl. 426. 
 (c) ,. p. 394. 
 (/) V. p. 414. 
 {g) T. p. 388. 
 (A) V. p. 414. 
 (0 V. p. 393. 
 (4) T. p. 413. 
 
( 424 ) 
 
 CHAPTEE XVIII. 
 
 VEKDICT. 
 
 Verdict, how We have already considered the province of the jury, 
 how given. *° ^^^ ^^^ Opportunities afforded to them for considering 
 their verdict. In order to clear up any difficulties, 
 they may ask the opinion of the judge on any point 
 vrhich is not exclusively for their determination; or 
 may have read over to them by the judge any part of 
 the evidence ; or through the judge, in court, may ask 
 any additional question of any witness. If they can- 
 not after a reasonable time agree upon their verdict, 
 they are discharged (l) ; the prisoner,, of course, being 
 liable to be tried again. Before finding the prisoner 
 guilty, they must be unanimous in believing that there 
 is no reasonable doubt of his guilt, not necessarily 
 that there is no other possible explanation. If they 
 do all agree, on coming into court again, if they have 
 retired, they answer to their names. The clerk of the 
 assize, clerk of the peace, or other officer, thus ad- 
 dresses them—" Gentlemen, have you agreed upon 
 your verdict ?" " How say you, do you find John 
 Styles guilty or not guilty ?" They deliver their ver- 
 dict through the foreman. In treason or felony the 
 prisoner must be present when this is done; but not 
 necessarily in misdemeanor. 
 
 Verdicts, Vcrdicts in criminal cases may be distinguished 
 
 general, ■ . . 
 
 partial, or 1^^° • — 
 
 specia . General — i.e., " guilty " or " not guilty " on the 
 
 whole charge. 
 
 (I) V. p. 378 as to discharge on account of death, &c., of juror. 
 
VERDICT. 425 
 
 Partial — as when the jury convict on one or more 
 counts of the indictment and acquit on the rest. 
 
 Special — when the facts of the case as found by the 
 jury are set forth, but the court is desired to draw the 
 legal inference from the facts, for example, whether 
 they amount to murder or manslaughter. 
 
 The jury may acquit one of several co-defendants Vei-dict if 
 who are joined in the same indictment and convict the ^^^^^ ^^ 
 
 *> ^ ^ several 
 
 others, and viee versa ; even though charged with jointly defendants. 
 receiving (m). But in cases where to constitute the 
 crime it is necessary that a certain number should join 
 in it, if so many are acquitted that less than the requi- 
 site number are left, these also must be acquitted — 
 thus, three are necessary for a riot, two for a con- 
 spiracy. 
 
 A person charged with a felony or misdemeanor may Verdict of 
 be found guilty of an attempt to commit the same ''''^"'P'- 
 offence (w), the same consequences following as if he 
 had been in the first instance charged with the attempt 
 only. 
 
 Upon an indictment for a misdemeanor, if the facts Verdict of 
 given in evidence amount to a felony, the prisoner is ^ough facts' 
 not on that account to be acquitted of the misde- amount to 
 meaner, unless the court thinks fit to discharge the ^ °°^' 
 jury and to order the defendant to be indicted for the 
 felony (o). 
 
 Upon an indictment for robbery, the prisoner may be Cases in whic& 
 found guilty of an assault with intent to rob (y). IrTmfnot'^"' 
 
 charged in 
 
 Upon an indictment for larceny, the prisoner may be indictment. 
 found guilty of embezzlement, and viee versa (q). 
 
 (m) 24 & 25 Vict. u. 96, s. 94. 
 (re) 14 & 15 Vict. u. 100, s. 9. 
 (o) Ibid. s. 12. 
 
 Ip) 24 & 25 Vict. t. 96, s. 41. 
 (?) Ibid. ». 72. 
 
426 
 
 VEBDICT. 
 
 Upon an indictment for obtaining by false pretences, 
 if the offence turns out to amount to larceny, the de- 
 fendant may still be convicted of false pretences {r). 
 
 And whenever a person is indicted for an offence 
 which includes in it an offence of minor extent and 
 gravity of the same class, the prisoner may be con- 
 victed of such minor offence (s). Thus, on an indict- 
 ment for murder, he may be convicted of manslaughter ; 
 so of simple larceny, if indicted for stealing in a dwell- 
 ing-house, or any other aggravated form of larceny (t). 
 
 Verdict If the judge is dissatisfied with the verdict he may 
 
 the^udge." ''^ direct the jury to reconsider it, and their subsequent 
 verdict will stand as the true one. If, however, the 
 jury insist upon having the first recorded, it must be 
 recorded ; but if it be a verdict of guilty, and contrary 
 to the evidence, it will be set aside and a new trial 
 granted by the Queen's Bench Division (m). 
 
 Acquittal, con- If a verdict of acquittal is returned, the prisoner is 
 sequences o . ^^^ ^^^^ ^^^^ from the present accusation ; and he is 
 discharged in due course, unless there is some other 
 charge against him. If he is acquitted on account of 
 some defect in the proceedings, or not, as above, on the 
 merits of the case, he may be detained and indicted 
 afresh. If he is acquitted on thjB ground of insanity 
 at the time of the commission of the offence, whether 
 such offence was a felony (a)) or misdemeanor {y), he 
 must be kept in custody until the Queen's pleasure be 
 known; and the Queen may order his confinement 
 during her pleasure (z). 
 
 (r) 24 & 25 Vict. v;. 96, s. 88 ; v. p. 230. 
 (s) V. Rose. 81. 
 (i) V. Arch. 223. 
 (m) t. p. 447. 
 
 Ix) 39 & 40 Geo. 3, c. 94, ». 1. 
 (?/) 3 & 4 Vict. c. 54, s. 3. 
 
 (sr) T. p. 357 as to insanity at time of trial and not of commission of 
 offence. 
 
VERDICT. 427 
 
 If a verdict of guilty is brought in, the accused is Coaviction. 
 said to be convicted. The jury may annex to such 
 verdict a recommendation to mercy on any grounds 
 they think proper — which recommendation will usu- 
 ally be taken into consideration by the judge (a). 
 If there are several counts in the indictment the 
 verdict specifies on which count the prisoner is con- 
 victed. 
 
 If there is a second indictment against a prisoner Second in- 
 who has been found guilty, frequently it is not pro- 'J"=''"*°'- 
 ceeded with if the charge is similar to that on which 
 he has just been convicted. The counsel for the pro- 
 secution often merely gives the court an outline of the 
 case. If he is acquitted, the second indictment is then 
 proceeded with, unless it is obvious that there is no 
 more evidence than in the first case. 
 
 If a prisoner indicted for any felony, or the offence Conviction 
 of uttering false or counterfeit coin, or of possessing convi^io™"' 
 counterfeit gold or silver coin, or of obtaining goods or 
 money by false pretences, or of conspiracy to defraud, or 
 of any misdemeanor under 24 & 25 Vict. c. 96, s. 58 (6), 
 has been found guilty, then, if he has been previously 
 convicted of any of the above crimes, he is asked 
 whether he has been so previously convicted, the 
 previous conviction being also alleged in the indict- 
 ment. If he admits it, the court proceeds to sentence 
 him. But if he denies it, or will not answer, the jury 
 are then, without being again sworn, charged to inquire 
 concerning such previous conviction; the point to be 
 established being the identification of the accused with 
 the person so convicted (c). The only case in which 
 
 (a) Unless, indeed, as is not unfrequently the case, it appears that the 
 recommendation is founded on some lingering doubt as to the sufficiency of 
 the evidence. 
 
 (6) V. p. 343. 
 
 (c) 34 & 35 Vict. c. 112, ss. 18, 20 ; sec also 24 & 25 Vict. t. 96, ». 116 ; 
 c. 97, s. 37. 
 
428 
 
 VERDICT, 
 
 evidence of a previous conviction may be given before 
 the subsequent conviction is found is when the pri- 
 soner gives evidence of character. In this case the jury 
 are to inquire of the previous conviction and the sub- 
 sequent offence at the same time (d). 
 
 (d) Arch. 231. Though the preyious conviction does not fall within the 
 scope of the aboye provision, the judge has before him a record of it and all 
 other occasions on which the accused has been before a criminal court. See 
 p. 217, as to evidence of certain previous convictions on an indictment for 
 receivings, 
 
( 429 ) 
 
 CHAPTEK XIX. 
 
 JUDGMENT. 
 
 Bbfoeb judgment in cases of treason and felony, the Judgment. 
 prisoner is supposed to be asked whether he has any- 
 thing to say why the court should not proceed to pass 
 sentence upon him. But in actual practice this is not 
 always done. 
 
 The interval between conviction and judgment is the Arrest of 
 time for the defendant to move the court in arrest of^^ ^"°° " 
 judgment. This motion must be grounded on some 
 defect apparent on the face of the record, and not on 
 some irregularity in the proceedings. The objection 
 must be a substantial one, such as want ,of suflS.cient 
 certainty in the indictment as to the statement of facts, 
 &c. But judgment will not be arrested if the defect 
 has been amended during the trial, or is such an one 
 as is aided by verdict. The court itself will arrest 
 judgment if it is satisfied that the defendant has" not 
 been found guilty of any offence in law. If judgment 
 is arrested, the proceedings are set aside, no judgment 
 is given, and the prisoner is discharged. But, unlike 
 an ordinary acquittal, the defendant may be indicted 
 again on the same facts. 
 
 Judgment may be postponed if the court wishes to Judgment 
 reserve any point of law for the consideration of the P"^*?™*^- 
 Court for Crown Cases Keserved (e). 
 
 If the defendant has been found guilty of a mis- Vei-dict in 
 
 absence of 
 prisoner, 
 (e) V. p. 450. 
 
430 JUDGMENT. 
 
 demeanor in his absence (in felonies he must be present), 
 process issues to bring him to receive judgment ; and 
 on non-appearance' he may be prosecuted to out- 
 lawry (/). If he has been allowed to leave the court 
 on entering into recognizances to come up for judgment 
 when called upon, and he fails to come up, his recog- 
 nizances will be forfeited and a warrant issued for his 
 apprehension. 
 
 Giving Judgment or sentence .is given by the court, the 
 
 judgment. judge adding such remarks as he thinks proper. For- 
 merly, in all capital felonies, when the court thought 
 that the person convicted was a fit subject for royal 
 mercy, it was lawful, instead of publicly giving sentence 
 of death, to enter it on the record, the effect being the 
 same {g). But it seems that now, by virtue of 24 & 25 
 Yict. c. 100, s. 2, sentence of death must be pronounced 
 on conviction for murder. 
 
 (/) T. p. 346. 
 
 (3) v. 4 Geo. 4, u. 48, ». 1 ; 6 & 7 Wm. 4, c. 30, s. 2 ; 24 & 25 Vict, 
 c. 95. 
 
( 431 ) 
 
 CHAPTEE XX. 
 
 INCIDENTS OF TEIAL. 
 
 Some miscellaneous points connected with a criminal 
 trial remain to be noticed, now that we have viewed 
 the general order of proceedings. 
 
 Defence in forma pauperis. — In cases of extreme Defence in 
 poverty (that is, when the defendant will swear that he ^''™"^''"^"'"- 
 is not worth £5 in the world, besides his wearing 
 apparel, after paying his debts) the defendant may 
 petition the Queen's Bench Division to be allowed to 
 defend himself as a pauper. His petition must be veri- 
 fied at the same time by an affidavit. It (the petition) 
 is presented either to a judge at chambers or in court. 
 On the prayer of the petition being granted, a rule is 
 drawn up by the judge's clerk, mentioning the name of 
 the counsel and attorney assigned for the defence ; and 
 this must be produced when the pauper requires any- 
 thing to be done without payment of fees (h). 
 
 There is also a custom of a similar nature. In cases Defence at the 
 where there is a special difficulty, or where the con- l^^^^\ "J 
 sequences are very serious, and therefore usually on 
 indictments for murder, if the prisoner is not defended 
 by counsel, the judge requests some barrister to give 
 his honorary services to the prisoner. Of course, this 
 request is always complied with. 
 
 Sometimes a poor person is allowed to prosecute in Prosecution m 
 forma pauperis, hut then, in addition to the petition ■^°™"^''"P^™' 
 
 (A) Arch. 151. B. v. Dugdale, Corner's Cr. Prac. 167. 
 
432 
 
 INCIDENTS OF TEIAL. 
 
 View of locus 
 in quo. 
 
 Adjournment 
 of trial. 
 
 and affidavit, there must be special grounds shewn for 
 allowing this irregularity (*'). 
 
 View of locus in quo ly the jury. — The judge may 
 allow the jury to view the scene of the crime, or other 
 occurrence under investigaiion, at any time during the 
 trial, even after the summing up. But care should be 
 taken that no improper communications are made at the 
 view ; and that no evidence is received in the absence 
 of the judge and the prisoner (h). 
 
 Adjournment of the trial. — If the trial is not con- 
 cluded on the same day on which -it is commenced, the 
 judge may adjourn from day to day (l). And a judge 
 may adjourn a case and proceed with another if the 
 emergency requires it, as, for example, to give time for 
 the production of something essential to the proof, or 
 for the witnesses to arrive (m). If the prisoner is taken 
 so ill as to render him incapable of remaining at the 
 bar, the jury is discharged, and the prisoner is after- 
 wards tried by another jury (n). 
 
 Withdrawal Withdrawal from prosecution. — Frequently the pro- 
 
 from prosecu- gecutor is desirous of withdrawing from the prosecution, 
 the accused engaging not to bring an action for tres- 
 pass and false imprisonment or malicious prosecution. 
 If the offence is a misdemeanor more immediately 
 affecting the individual, e.ff., a battery, or, in other 
 words, one which might be made the subject of civil 
 action, this will be allowed, and the agreement will be 
 enforced ; but not if the offence is a felony or a misde- 
 meanor of a more public nature (o). Even after verdict, 
 if the court deems such a course proper, the defendant 
 
 Arch. 151. iJ. V. Wakins, 1 Dowl. P. C. 536. 
 
 Ik) B. V. Martin, L. R. 1 C. C. E. 378; 41 L. J. (M.C.) 113. 
 
 (I) As to what happens to the jury in the interval, v. p. 378. 
 
 (m) -H. V. Wenborn, 6 Jur. 267. 
 
 (n) B. V. Stevenson, 2 Leach, 546. 
 
 (o) T. Rawlings v. Coal Consumers' Association, 43 L. J. (M.C.) 111. 
 
INCIDENTS OP TEIAL. 433 
 
 is sometimes allowed to " talk with the prosecutor." 
 Though one person is not obliged in the first instance 
 to prosecute another whom he suspects of crime, that 
 is, not until he has been bound over by the magistrate 
 to prosecute and give evidence, it is a crime to take a 
 reward not to prosecute a felony (p). 
 
 Bestitution of goods. — If any person guilty of any Restitution of 
 felony or misdemeanor mentioned in the Larceny Gon- ^°° ^' 
 solidation Act, in stealing, taking, obtaining,. extorting, 
 embezzling, converting, or disposing of, or in know- 
 ingly receiving, any chattel, money, valuable security, 
 or other property, is indicted for such offence by or on 
 behalf of the owner of the property, or his executors, 
 or administrators, and convicted thereof ; in such case 
 the property is to be restored to the owner or his re- 
 presentative. The court may order the restitution in 
 a summary manner. But no such restitution is made 
 if it appears that any valuable security has been hond 
 fide paid or discharged by some person or body corpo- 
 rate liable to the payment thereof, or, being a negotiable 
 instrument, has been bona fide taken or received by 
 transfer or delivery, by some person or body corporate, 
 for a just and valuable consideration, without any 
 notice or reasonable cause to suspect that the same had, 
 by any felony or misdemeanor, been stolen, &c. But 
 the above provisions as to restitution do not apply to 
 the case of any prosecution of any trustee, banker, 
 merchant, solicitor, factor, broker, or other agent in- 
 trusted with the possession of goods or documents of 
 title to goods, for any misdemeanor against the Larceny 
 Act {q). But the court has not power, as a rule, to 
 order property not forming part of the subject of the 
 indictment, for example, property found on the pri- 
 soner, to be disposed of in a particular manner (r). 
 
 (p) T. compounding felony, p. 92. 
 (<;) 24 & 25 Vict. c. 96, s. 100. 
 
 (r) B. T. Corporation of Zondon, 27 L. J. (M.C.) 231. But an exception 
 is introduced by statute 30 & 31 Vict. c. 35, s. 9. 
 
 2 F 
 
434 
 
 INCIDENTS OF TKIAL. 
 
 Right of owner 
 preferred to 
 that of inno 
 
 Remedy of 
 innocent pur- 
 chaser. 
 
 The riglit to claim resbitution is not defeated by the 
 fact that the goods haye been sold to an innocent 
 cent purchaser, buyer in market overt. It is obvious that either the 
 owner or the purchaser must suffer, and the lavf prefers 
 the cause of the former, " who has done a meritorious 
 act by pursuing a felon tq. condign punishment, to the 
 right of the purchaser, whose merit is only nega- 
 tive " (s). Not that the innocent purchaser is always 
 a total loser ; for it is provided that money found on a 
 prisoner, who has been convicted of an offence which in- 
 cludes the stealing of any property, may be ordered by 
 the court to be given to the purchaser of the property 
 if he did not know that the same was stolen. This 
 takes place only after he has restored the property to 
 the owner ; and of course the amount so given must 
 not exceed the amount of the proceeds of the sale (t). 
 If the property has been pawned, the court may order 
 the delivery thereof to the owner, either on payment 
 to the pawnbroker of the amount of the loan or of any 
 part thereof, or without payment of any part, as the 
 court, according to the conduct of the owner and 
 the other circumstances of the case, thinks just and 
 fitting (u). 
 
 Restitution Eestitution may be ordered in the same way by 
 
 ordered by a magistrates convicting of larceny, &c., in the exercise 
 of their summary jurisdiction (v). 
 
 magistrate. 
 
 Owner may re- Even without any -award of restitution, the owner 
 take his goods. ^^^ peaceably retake his goods whenever he happens 
 
 to find them, unless a new property has been fairly 
 
 acquired therein (x). 
 
 (s) i Bl. 363. 
 
 (i) 30 & 31 Vict. c. 35, s. 9. 
 («) 35 & 36 Vict. u. 93, s. 30. 
 
 (») 18 & 19 Vict. I}. 126, s. 8 ; so, also, in the case of juvenile offenders 
 under 10 & 11 Vict. c. 82, s. 12. 
 
 (a;) 4 Bl. 363. Scattergood v. Sylvester, 15 Q. B. 506. 
 
( 435 ) 
 
 CHAPTER XXI. 
 
 PUNISHMENT. 
 
 The object of the sentence is to prescribe the punish- Punishment. 
 ment. The law, whether common law or statute law, 
 which assigns the punishment, almost nnexceptionally 
 gives the judge a certain latitude as to the amount of 
 punishment. Though he is restricted as to the maxi- Minimum 
 mum, in almost CTery case he can give as little as he P^i'shments 
 pleases, minimum punishments having been abolished 
 by statute (y). On conviction for treason or murder, 
 however, sentence of death must be passed (a). Crimes 
 against nature must be punished by at least ten years 
 penal servitude. Some crimes demand a wide limit of 
 punishment ; for example, manslaughter, where it may 
 range from penal servitude for life to a merely nominal 
 punishment according to the circumstances. But 
 practically this works well, as the judges are quite 
 competent to apportion the punishment to the crime ; 
 and the inconvenience of reposing that confidence in 
 them is a less evil than the multiplication of technical 
 distinctions which inevitably results from the multi- 
 plication of the definitions of crime (a). 
 
 The punishment prescribed by statute for felonies Usual punish- 
 ment for 
 felonies. 
 
 is usually penal servitude for not less than five years, ™^''' ^°^ 
 
 or imprisonment not exceeding two years with or with 
 out hard labour. When the punishment is not pre- 
 scribed by statute, the combined effect of several 
 
 (y) 9 & 10 Vict. c. 24. 
 
 («) V. p. 264 for two offences anomalously capital- 
 
 (u) Fitz. St. 143. 
 
 2 F 2 
 
436 
 
 PUNISHMENT. 
 
 statutes (h) is, that such felonies may be punished by- 
 penal servitude for not more than seven nor less than 
 five years, or by imprisonment for any term not ex- 
 ceeding two years ; and, if a male, the court may order 
 the felon to be once, twice, or thrice publicly or 
 privately whipped in additii5n to such punishment. 
 
 Usual punish- The punishment prescribed by statute for mis- 
 mMemeanors. *'we«'»<""s is Usually fine or imprisonment, or both; 
 and it is also the same when it is not prescribed by 
 s-tatute, but left to the common law (c). The court 
 may also require the defendant to find sureties td 
 keep the peace and be of good behaviour. 
 
 Punishment The punishment for a felony (not punishable with 
 ronviction!""' ^^^*^ ^^^ ^°* ^^^'^S simple larceny), after a previous 
 conviction for felony, is penal servitude for life or for 
 not less than seven years, or imprisonment not exceed- 
 ing two years ; and in the case of a male, if the court 
 thinks fit, whipping publicly or privately, once, twice, 
 or thrice (d). To- a person convicted of a crime punish- 
 able by penal servitude, after a previous conviction for 
 felony, the least sentence of penal servitude that can 
 be awarded is seven years (e). 
 
 Simple larceny Special enactments impose certain terms of punish- 
 after previous jj^gut iji the case of conviction for simple larceny after 
 
 conviction. . . „ ■ «• mi 
 
 previous conviction for certain offences. The punish- 
 ment for simple larceny, after previous conviction for 
 felony, is penal servitude from seven to ten years, or 
 imprisonment not exceeding two years, with or without 
 hard labour, or solitary confinement ; and in the case 
 of a male under sixteen years of age, with or without 
 
 (6) 7 & 8 Geo. 4, c. 28, s. 8 (see also s. 9) ; 20 & 21 Vict. c. 3, s. 2 ; 
 27 & 28 Vict. ^. 47, s. 2. 
 
 (c) As to hard labour, v. p. 440. 
 
 (d) 7 & 8 Geo. 4, c. 28, s. 11 ; 20 & 21 Vict. c. 3, s. 2 ; 27 & 28 Vict, 
 u. 47, s. 2. 
 
 (e) 27 & 28 Vict. c. 47, s. 2. 
 
PUNISHMENT. 437 
 
 ■whipping (/). For simpla larceny, or any offence 
 made punishable as simple larceny by the Larceny Act, 
 after preyioua conviction for any indictable misde- 
 meanor under the Larceny Act, the punishment is 
 penal servitude from five to seven years, or imprison- 
 ment as in the last case (g). The same limits of 
 punishment apply to simple larceny, or an offence 
 punishable as simple larceny, after two summary con- 
 victions for offences punishable upon summary con- 
 viction under certain enumerated Acts (A). 
 
 For uttering, &c., counterfeit coin,, after previous uttering. &c., 
 conviction for such crime, or previous conviction for °o™aft|,r ' 
 a felony against a coinage Act, the punishment is previous con- 
 penal servitude for life, or for not less than five years, ''"''^™- 
 or imprisonment not exceeding two years, with or 
 without hard labour, or solitary confinement («). 
 
 We may notice here that if the prisoner is found several terms 
 guilty of several distinct offences on different counts, °^ pumshment 
 
 ? , 1 , (. • 1 concurrent or 
 
 he may be sentenced to several terms of punishment ; continuous. 
 such terms to be concurrent, or the second to com- 
 mence at the expiration of the first. When a. sentence 
 for felony is passed on a person already suffering im- 
 prisonment for another crime, the court may order the 
 imprisonment for the subsequent offence to commence 
 at the expiration of the former term ; so also the 
 court may order a sentence of penal servitude to 
 commence after the previous imprisonment or penal 
 servitude, although the aggregate term of imprison- 
 ment or penal servitude respectively may exceed the 
 term for which either of these punishments could be 
 otherwise awarded (k). 
 
 (/) 24 & 25 Vict. 0. 96, s. 7. 
 
 (3) Ibid. s. 8. 
 
 (A) Ibid. 3. 9. 
 
 (i) 24 & 25 Vict. c. 99, s. 12. 
 
 (A) 7 & 8 Geo. 4, c. 28, s. 10. 
 
438 
 
 PUNISHMENT. 
 
 Sanctions of 
 the law 
 enumerated. 
 
 the law following:— 
 
 The punishments which the law prescribes are the 
 
 Death. 
 
 Penal servi- 
 tude. 
 
 Death ; Penal Servitude ; Imprisonment ; Fine. 
 
 Incidental to the imprisonment are sometimes 
 Hard Labour ; Whipping ; Solitary Confinement. 
 
 In addition to other punishment there is often made 
 an order that the person convicted be under police 
 supervision for a certain time. 
 
 Again, in some cases the ends of justice are at- 
 tained by requiring the prisoner to enter into recog- 
 nizances to come up for judgment if called for ; which 
 generally means that if he conducts himself with pro- 
 priety he will hear nothing more of the matter. 
 
 The prisoner may also be required to find sureties to 
 keep the peace, or to be of good behaviour. 
 
 Youthful offenders, under certain circumstances, 
 may be sent to reformatories or industrial schools. 
 
 Each of the above named sanctions of the law will 
 in turn receive a brief notice. 
 
 Beath. — This is the only punishment which must b"e 
 awarded in treason and murder. And it cannot be 
 awarded in any other cases except piracy, or the two 
 crimes of setting fire to Her Majesty's vessel of war or 
 to ships, &c., in the port of London (?). 
 
 Penal Servitude. — This mode of punishment was 
 introduced in substitution for transportation beyond 
 the seas in certain cases by 16 & 17 Vict. c. 99, and 
 totally superseded transportation by 20 & 21 Yict. c. 3. 
 
 (?) As to recording sentence, v. p. 430. As to mode of execution, v. p. 457. 
 
PUNISHMENT. 439 
 
 It was placed generally on the same footing as the latter 
 punishment : thus, any person who might formerly- 
 have been sentenced to transportation is now liable to 
 be kept in penal servitude for the same period ; and 
 any person who might have been sentenced either to 
 transportation or imprisonment may now be sentenced 
 either to penal servitude or imprisonment. But in 
 cases where before the Act sentence of seven years 
 transportation might have been passed, the court may 
 now pass sentence of not less than five years penal 
 servitude (m). 
 
 Persons sentenced to penal servitude may be con- Place of con- 
 fined in any prison, or place of confinement in any part ''°«™«'it i"! 
 of the United Kingdom, or in any river, port, or bar- vitude. 
 hour of the United Kingdom, in which persons under 
 sentence or order of transportation might formerly be 
 confined, or in any other prisoii in the United Kingdom, 
 or in Her Majesty's dominions beyond the sea, as one 
 of Her Majesty's secretaries of state may direct. And 
 in other respects, as to custody, hard labour, manage- 
 ment, control, property in their services, and punish- 
 ment for unlawfully being at large before the expira- 
 tion of their term (n), they may be dealt with as 
 persons sentenced to transportation i'ormerly were (o). 
 
 The shortest term of penal servitude which can be 
 awarded is five years ; or, after a previous conviction 
 for felony, seven years (p). 
 
 Imprisonment. — As a general rule, no longer sentence Imprisonment. 
 of- imprisonment than for two years can be awarded. 
 From that to penal servitude (if allowed in the par- 
 ticular case) for five years there is a spring. But 
 under some statutes still in force, imprisonment to the 
 
 (m) 20 & 21 Vict. u. 3, s. 2 ; 27 & 28 Vict. u. 47, i. 2. 
 (») T. p. 76. 
 
 (o) 16 & 17 Vict. u. 99, s. 6 ; 20 & 21 Vict. c. 3, =. 3, 
 (p) 27 & 28 Vict. c. 47, ». 2. 
 
440 
 
 PUNISHMENT. 
 
 extent of three or four or even more years may be 
 awarded, for example, under 24 & 25 Vict. c. 134, 
 s. 221 ; 24 & 25 Vict. c. 98, s. 11 ; 7 Wm. 4 and 1 Vict. 
 c. 36, s. 26 ; 2 Geo. 2, c. 25, s. 2. 
 
 Fine. Fine. — In offences punishable by fine usually the 
 
 amount of the fine is not restricted by statute. The 
 reason of this is obvious. Not only does the value of 
 money change from time to time, but a fine which 
 would be ruin to one man would be matter of indiffer- 
 ence to another (^). The Bill of Eights provides that 
 excessive fines shall not be imposed. It would be 
 imprudent to hinder a man from getting his livelihood ; 
 and if the crime demands more severe punishment, the 
 court may award imprisonment, for it is generally em- 
 powered to award either the one or the other, and 
 frequently both. Felonies are very rarely punished by 
 mere fine (r). Each of the Criminal Consolidation 
 Acts, 1861, provides that a person convicted of a mis- 
 demeanor under those Acts may be fined in addition to 
 or in lieu of other punishment (s). 
 
 Hard labour. Hard Lohow. — This punishment may be added in 
 nearly all cases to imprisonment for felony. The mis- 
 demeanors to the imprisonment for which hard labour 
 may- be added are enumerated in 3 Geo. 4, c. 114, and 
 14 & 15 Vict. c. 100, s. 29. Each of the Criminal 
 Consolidation Acts, 1861, contains a clause to the effect 
 that the court may add hard labour to imprisonment 
 in case of indictable offences, felonies or misdemeanors, 
 under those Acts it). Also in offences under the Post 
 Office Acts for which imprisonment may be awarded, 
 the court may add hard labour (m). So that in nearly 
 
 (?) 4 Bl. 378. 
 
 ()•) T. 24 & 25 Vict. c. 100, s. 5. 
 
 (s) 24 & 25 Vict. c. 96, s. 117 ; c. 97, s. 73 ; c. 98, ». 51 ; c. 99, s. 38 ; 
 i;. 100, s. 71. 
 
 (t) 24 & 25 Vict. c. 96, s. 118 ; c. 97, s. 74 ; c. 98, s. 52 ; o. 99, ». 39 ; 
 u. 100, s. 69. 
 
 («) 7 Wm. 4 & 1 Vict. c. 36, s. 42. 
 
PUNISHMENT. 441 
 
 every case now hard labour may accompany imprison- 
 ment. 
 
 Two classes of hard labour are distinguished — one 
 for the employment of males above the age of sixteen; 
 the other for that of males below that age and of 
 females. Eegulations as to its nature and application 
 are made by statute (a;). 
 
 Whijpiping .—H^Q classes of cases in which whipping whipping: 
 is allowed must be distinguished : — (i.) of males below 
 the age of sixteen ; (ii.) of males of an age. It should 
 be premised that a female can never be whipped. 
 Where formerly sentence of whipping might be passed, 
 the court or magistrate may now order the female to 
 be kept to hard labour for a term not exceeding six 
 months nor less than one month, in lieu of the whip- 
 
 i. By three of the Consolidation Acts whipping may in caseof juve- 
 be inflicted for a variety of specified offences committed °'^^ offenders : 
 by males under the age of sixteen, and in one case, 
 males under the age of eighteen (z). It is to take 
 place once, and the number of strokes and the instru- 
 ment with which they are to be inflicted are to be 
 specified by the court in the sentence {a). 
 
 When this punishment is awarded by the magistrates 
 in the exercise of their summary jurisdiction, the 
 sentence must specify the number of strokes and the 
 instrument ; and in the case of an offender whose age 
 does not exceed fourteen, the number of strokes must 
 not exceed twelve, and the instrument used must be a 
 
 (a) 28 & 29 Viot. u. 126, =. 19, and Part IV. sched. i. regs. 34-37. 
 (!/) 1 Geo. 4, c. 57, i. 2. 
 
 (z) 24 & 25 Vict. 0. 96, s. 101. Tills exception is probably a mere over- 
 sight on the part of the legislature. 
 
 (a) 24 & 25 Viot. ^. 96, s. 119 ; c. 97, s. 75 ; >;. 100, =. 70. 
 
442 
 
 PUNISHMENT. 
 
 birch rod. The offender must not be whipped more 
 than once for the same offence (6). 
 
 in case of males li. Whipping once, twice, or thrice, may be awarded 
 any age. ^^ males of any age in case of : — 
 
 (a.) Eobbery, &c., with violence — or an attempt to 
 choke, suffocate, or strangle. The following regulations 
 must be observed : — The whipping must be privately 
 inflicted ; (^S) if the age of the offender does not exceed 
 sixteen, the number of strokes at each whipping must 
 not exceed twenty-five, and the instrument must be a 
 birch rod ; (7) in other cases not more than fifty strokes 
 at a whipping ; (8) the court must specify the number 
 of strokes and the instrument ; (e) the whipping must 
 not take place after six months from the sentence; 
 (f) in the case of a person sentenced to penal servitude, 
 the whipping must be inflicted before he is removed to 
 a convict prison (c). 
 
 (b.) Felony, after a previous conviction for felony ; and 
 certain offences relating to the falsifying of certificates 
 of previous conviction. The whipping is to be publicly 
 or privately inflicted (d). 
 
 (c.) Felony for which no particular punishment has 
 been provided (e). 
 
 Solitary con- Solitary Confinement. — This may be ordered in certain 
 finement. specified cases mentioned in the Criminal Consolidation 
 Acts. Also for felonies for which no particular punish- 
 ment has been prescribed by statute (/) ; and for certain 
 other offences which it is unnecessary to enumerate. 
 But in no case may a prisoner be kept in solitary 
 confinement for any longer period than one month at 
 
 (6) 25 & 26 Vici,. c. 18. 
 
 (c) 26 & 27 Vict. u. 44. 
 
 (d) 7 & 8 Geo. 4, ^. 28, s. 11. 
 («) Ibid. ». 8. 
 
 (/) Ibid. ». 9. 
 
PUNISHMENT. 443 
 
 a time, or than three months in the space of one 
 year {g). 
 
 Police Supervision. — When any person is convicted Police super- 
 on an indictment for a crime (explained by the Act to ^^^^°^' 
 mean in England — any felony, or the offence of uttering 
 false or counterfeit coin, or of possessing counterfeit 
 gold or silver coin, or of obtaining by false pretences, 
 or of conspiracy to defraud, or of any misdemeanor 
 under 24 & 25 Vict. c. 96, s. 58), and a previous con- 
 viction of a crime is proved against him, the court may, 
 in addition to any other punishment, direct that he is 
 to be subject to the supervision of the police for a 
 period of seven years or less, commencing immediately 
 after the expiration of the sentence passed on him for 
 the last of such crimes (h). 
 
 The consequence of such sentence is that the person what it con- 
 to be supervised must notify the place of his residence ^'^*^ '"■ 
 to the chief officer of police of the district in which 
 his residence is situated, and also notify any change 
 vrithin such district ; and if he goes out of the district, 
 he must notify the change to the chief officer of the 
 ■district he is leaving, and also to the chief officer of 
 the district to vrhich he is going. If a male, he must 
 report himself personally or by letter, as required, once 
 a month to the chief officer of the district. If he 
 offends against these regulations, or is forty-eight 
 hours in any place without notifying the place of his 
 residence to the chief officer, he is subject to imprison- 
 ment with or without hard labour for a term not 
 exceeding one year (i). 
 
 Recognizances and Sureties. — Under each of the Entering into 
 Criminal Consolidation Acts, in case of conviction for 3^^°!°^™°''* 
 
 sureties. 
 
 {g) 7 Wjn. 4 and 1 Vict. c. 90, s. 5. 24 & 25 Vict. o. 96, s. 119 ; c. 97, 
 s. 75 ; c. 98, s. 53 ; c. 99, s. 40 ; c. 100, s. 70. 
 (A) 34 & 35 Vict. u. 112, s. 8. 
 (0 Ibid. 
 
444 
 
 PUNISHMENT, 
 
 an indictable misdemeanor ■pvmisha.hle under those Acts, 
 the court may fine the offender, and require him to enter 
 into his own recognizances and to find sureties, both or 
 either, for keeping the peace and being of good be- 
 haviour, in addition to or in lieu of any other punish- 
 ment. In'case of a felony punishable under the Acts, 
 the court may order him to enter into his own recog- 
 nizances and to find sureties, both or either, for keeping 
 the peace, in addition to any other punishment. But 
 under these clauses no one may be imprisoned for not 
 finding sureties for any period exceeding one year (k). 
 
 Reformatories. Beformatory and Industrial Schools. — When any 
 ofi'ender who, in the judgment of the court or magis- 
 trates, is under the age of sixteen years, is convicted 
 of an ofi'ence punishable by penal servitude or im- 
 prisonment, and is sentenced to imprisonment for ten 
 days or more, the court or magistrates may also sentence 
 him to be sent, after his imprisonment, to a certified 
 reformatory school, to be there detained for a period of 
 from two to five years. But if he is under the age of 
 ten years he may not be sent to a reformatory unless 
 he has been previously charged with some offence 
 punishable by penal servitude or imprisonment ; or is 
 sentenced by a judge of assize or a court of general 
 or quarter sessions. The court sending such a youthful 
 offender to a school will choose one of his apparent 
 religious persuasion (Z). 
 
 Industrial 
 schools. 
 
 Industrial schools meet the case of those who have 
 not to so great an extent fallen into crime, but are on 
 the highway to it. Thus, two magistrates may send 
 the following, among others, to such schools : children 
 apparently under the age of fourteen begging, having 
 no home or visible means of existence, in the company 
 
 (A) 24 & 25 Vict. 96, s. 117 ; u. 97, s. 73 ; c. 98, s. 51 ; c. 99, s. 38 i 
 u. 100, s. 71. 
 
 (0 29 & 30 Vict. c. 117, s. 14. 
 
PUNISHMENT, 445 
 
 of reputed thieves ; destitute orphans, or having a 
 surviving parent in penal servitude or imprisonment ; 
 children apparently under the age of twelve charged 
 with an offence punishable by imprisonment or less 
 punishment, but not. having been convicted of felony, 
 &c. No child is detained in such school a'fter he has 
 attained the age of sixteen, unless with his own consent 
 expressed in writing (m). 
 
 Other Consequences of Conviction. 
 
 Until recently certain forfeitures and other conse- Forfeiture, &c. 
 quences followed on conviction for treason or felony. 
 But by statute (n) it has been provided that from and 
 after the passing of the Act (July 4, 1870) no confes- 
 sion, verdict, inquest, conviction, or judgment of or for 
 any treason, felony, or felo de se, shall cause any 
 attainder or corruption of hlood, or any forfeiture, or 
 escheat ; provided that nothing in the Act shall affect 
 the law of forfeiture consequent upon outlawry. Of 
 course this does not refer to, or interfere with, any fine 
 or penalty imposed in the sentence (o). 
 
 But a conviction for treason or felony for which the Deprivation of 
 sentence is death, penal servitude, or imprisonment with ""''''' ^''■ 
 hard labour, or exceeding twelve months, determines 
 the tenure of any military or naval office, or any civil 
 office under the Crown, or other public employment, or 
 any ecclesiastical benefice, or any office or emolument in 
 any university or other corporation, or any pension or 
 superannuation allowance payable by the public, or out 
 of the public funds, unless a pardon is received within 
 two months after the conviction, or before the filling up 
 of the office, place, &c., if given at a later period. It 
 also disqualifies for the future, until the punishment 
 
 (m) 29 & 30 Vict. c. 118. 
 (n) 33 & 34 Vict. c. 23, s. 1. 
 (o) Ibid. s. 5. 
 
446 
 
 PUNISHMENT. 
 
 has been suffered or pardon received, the felon from 
 holding any military or naval office, or any civil 
 office under the Crown, or other public employment, 
 or any ecclesiastical benefice, or of being elected, or 
 sitting, or voting as a member of either House of Par- 
 liament, or of exercising any right of suffrage or other 
 parliamentary or municipal franchise within England, 
 Wales, or Ireland (p). 
 
 Property of a As to the projoerty of the felon. — By the same 
 vfcHon*^'^'^ °™" ^^^*^*® (?) i* i^ provided that this may be committed 
 to the custody and management of an administrator, to 
 be appointed by the Crown ; or, in default of such 
 appointment, to the management of an interim curator, 
 who may be appointed by the magistrates on an appli- 
 cation made in the interest of the felon or his family. 
 The administrator or curator must pay his debts and 
 liabilities, and support his family, and preserve the 
 residue of the property for the felon himself or his re- 
 presentatives, on the completion of his punishment, his 
 pardon, or his death. 
 
 Costs and com- Porsons convicted of treason or felony may be con- 
 
 -pensation. demned in costs; and if convicted of felony may be 
 
 ordered to pay a sum of money, not exceeding £100, as 
 
 compensation to the person defrauded or injured by the 
 
 commission of the felony (r). 
 
 (p) 33 & 34 Vict. c. 23, s. 2. 
 (f) Ibid. ss. 9, 18, 21. 
 (f) Ibid. ss. 3, 4. 
 
( 447 ) 
 
 CHAPTEE XXII. 
 
 PROCEEDINGS AETEE TRIAL. 
 
 Thotjgh there is no appeal on the merits in a criminal Verdict, when 
 case, the verdict of the jury does not always determine ''J^^f not take 
 the conviction or acquittal of the prisoner. We have 
 already seen (s) that judgment may be arrested on 
 certain grounds. It remains to consider those cases in 
 which the judgment, though actually given, is subse- 
 quently affected. This matter will be treated of under 
 the heads of New Trial, Eeversal of Judgment by Writ 
 of Error, and the Court for Crown Cases Eeserved. The 
 subject of Eeprieve and Pardon will form a separate 
 chapter. 
 
 NEW TBIAL. 
 
 " Where an indictment has been preferred in the New' trial, 
 Queen's Bench, or has been removed into that court by ^^"'^ ''"°'^"^- 
 certiorari, a new trial may, after conviction, be moved 
 for, on the ground that the prosecutor has omitted to 
 give due notice of trial ; or that the verdict has been 
 contrary to evidence, or to the direction of the judge ; 
 or for the improper reception or rejection of evidence, 
 or other mistake or misdirection of the judge ; or for 
 any gross misbehaviour of the jury among themselves ; 
 or for surprise ; or for any other cause where it shall 
 appear to the court that a new trial will further the 
 ends, of justice" (t). 
 
 It is now settled that only in misdemeanors, and not 
 
 (s) V. p. 429. 
 (0 Arch. 188. 
 
448 
 
 PEOCEEDINGS APTEB TRIAL. 
 
 in felonies, can a new trial be granted (m). As a rule, 
 after a verdict of acquittal, a new trial will not be 
 granted ; but this rule is subject to qualifications, for 
 example, where the defendant has kept back witnesses 
 for the prosecution ; or where the object of the criminal 
 proceeding is to try a right, as in the case of a prosecu- 
 tion for the non-repair of roads (x). 
 
 New trial, by Only in case of some irregularity in the proceedings, 
 gianted. qj.^ j^ ^^j^gj, ^Qj,^g^ ^ mis-trial, can any other court 
 than the Queen's Bench grant a new trial, the mis-trial 
 being regarded as a mere nullity. 
 
 New trial, how The motion for a new trial is made upon the judge's 
 notes of the trial, or upon affidavit, the defendant 
 being present in court. "When counsel have been 
 heard on both sides, the court either makes the rule 
 absolute or discharges it, with or without costs. If 
 the new trial is granted, the effect of the former 
 trial is completely swept away, and all the facts are 
 re-heard. 
 
 EETEESAL OP JTJDaMENT BY WRIT OP EEROR. 
 
 Reversal of As a rulc, the Only way in which judgment can be 
 
 ju gmcnt. reversed is by writ of error, though such writ is not 
 
 necessary if the objection is to some matter dehors or 
 
 foreign to the record, as if judgment be given by persons 
 
 who have no authority, 
 
 Writ of error. A Writ of crror is a writ directed to an inferior court 
 which has given judgment against the defendant, re- 
 quiring it to send up the record and proceedings of the 
 indictment in question to the Queen's Bench Division, 
 for that court to examine whether the errors alleged 
 took place, and to affirm or reverse the judgment of the 
 
 (m) S. t. Bcrtrand, L. E. 1 (Priv. Counc.) 520. 
 (x) Y. S. T. Ckorley, 12 Q. B. 515. 
 
PROCEEDINGS AFTER TRIAL. 449 
 
 inferior court. It must be grounded on some substan- 
 tial defect apparent on the face -of the record, as if the 
 indictment be bad in substance, or the sentence be 
 illegal. It will never be allowed for a formal defect {y). 
 The following are examples of cases where it has been 
 held that a writ of error would He : in perjury, where 
 the court has not competent authority to administer 
 the oath ; in libel, if the words do not appeai; to be 
 libellous ; in false pretences, if it is not shewn what the 
 false pretences were (z). 
 
 Before suing out the writ of error, it is necessary Proceedings on 
 to obtain the fiat of the attorney-general, on shewing ^'''*' "^ "''°^' 
 reasonable ground of error. This is at the discretion 
 of the attorney-general, but is not generally refused ; 
 indeed, in misdemeanors, it is granted as a matter of 
 course. The writ is delivered to the clerk of the peace, 
 or other officer of the court to which it is directed, who 
 has the custody of the indictment. He makes up the 
 record and makes out the return to the court. The 
 party suing assigns his errors. The Crown joins in 
 error. The case is argued, and judgment of affirmance 
 or reversal given. The court of error may either pro- 
 nounce the proper judgment itself, or remit the record 
 back to the inferior court, in order that the latter may 
 pronounce judgment {a). 
 
 If judgment is affirmed, the defendant may be at once Jurigment 
 committed to prison ; and if he does not surrender- *''''^'"^''" 
 within four days, a judge may issue a warrant for his 
 apprehension (6). 
 
 If judgment is reversed, all the former proceedings are Judgment 
 null and void, and the defendant is in the same position ''''^'*''^^ • 
 
 {y) V. 14 & 15 Vict. c. 100, s. 25. 
 
 (s) V. Castro v. Murray, 32 L. T. (N.S.) 675. ' 
 
 (a) 11 & 12 Vict. c. 78, s. 5. 
 
 (6) 16 & 17 Vict. c. 32, s. 4. 
 
 2 
 
450 
 
 PROCEEDINGS APTEB TRIAL. 
 
 as if he had never been charged with the offence, there- 
 fore he may be indicted, again on the same ground. 
 
 Interval before In the interval before the result of the proceedings 
 error. Ill error is known, in cases ol misdemeanor the de- 
 
 fendant is discharged from custody on entering into 
 the recognizances with sureties required by the Acts 
 mentioned below ; in felonies he remains in custody (e). 
 
 The Supreme The jurisdiction in error in criminal cases is thus 
 Acts andMTor. regulated by the Supreme Court of Judicature Acts. 
 On a judgment of the High Court of Justice (including 
 the Queen's Bench Division, commissions of gaol deli- 
 very and oyer and terminer), an appeal lies to the 
 Court of Appeal, if there is some error of law apparent 
 on the face of the record, as to which no question has 
 been reserved under 11 & 12 Vict. c. 78 (d). And as to 
 appeals from quarter sessions and other inferior courts, 
 which might haye been brought to any court or judge 
 whose jurisdiction is transferred to the High Court of 
 Justice, it is provided that they may be heard and 
 determined by divisional courts of the High Court con- 
 sisting of judges who may be assigned for that purpose. 
 The determination of such appeals respectively by these 
 divisional courts is final, unless special leave to appeal 
 to the Court of Appeal is given by the divisional court 
 so hearing (e). 
 
 COURT FOR CROWN CASES RESERVED. 
 
 Crown cases If any question of law arises at a trial for treason, 
 
 reserved. felony, or misdemeanor, which the court (whether a 
 
 judge at the assizes, the justices or recorder at the 
 
 quarter sessions) deems it inexpedient or impracticable 
 
 (c) 8 & 9 Vict. c. 68, s. 1 ; 9 & 10 Vict. c. 24, s. 4 ; 16 & 17 Vict. c. 32, 
 s. 1. 
 
 (d) 36 & 37 Vict. c. 66, ss. 18, 19, 47. As to 11 & 12 Vict. i;. 78, 
 V. p. 451. 
 
 (e) 36 & 37 Vict. c. 66, s. 45. 
 
PROCEEDINGS AFTER TRIAIi. 451 
 
 to decide at once and of itself, it reserves the point for 
 the consideration of the Court for Crown Cases Eeserved ; 
 provided, of course, a conviction takes place, for other- 
 wise there would be no need for further considera- 
 tion (/). Such court consists of the judges of the 
 High Court of Justice, or five of them at least,, of whom 
 the Lord Chief Justice of England, the Lord Chief 
 Justice of the Common Pleas Division, or the Lord 
 Chief Baron must be one {g). 
 
 The court reserving the point may respite execution interval before 
 of the judgment on such conviction, or postpone the ^'''^'°"' 
 judgment until the question is decided. And in either 
 case, to secure the appearance of the defendant when 
 he is required, the court will, in its discretion, either 
 commit him to prison or take a recognizance of bail 
 with one or two sureties Qi). 
 
 The Court for Crown Cases Eeserved hears counsel Proceedings in 
 on either side, even though counsel do not appear on crawn'cLes' 
 the other side. If they appear on both sides, the Reserved. 
 counsel for the prisoner begins and has a reply. If 
 counsel do not appear at all, the Lord Chief Justice or 
 Lord Chief Baron presiding reads the case and then 
 judgment is pronounced. The judgment is that the 
 court reverses, affirms, or amends the judgment of the 
 court reserving the point j or avoids such judgment 
 and orders an entry to be made on the record that, in 
 the opinion of the Court for Crown Cases Eeserved, the 
 party convicted ought not to have been convicted ; or 
 orders judgment to be given at some other assizes or 
 , sessions if no judgment has been given up to that 
 time ; or makes such other order as justice requires. 
 The order of the court, whether for execution of judg- 
 ment or discharge of the prisoner, is carried out by 
 
 (/) 11 & 12 Vict. c. 78, s. 1. 
 
 ((/) Ibid. s. 3 ; 36 & 37 Vict. c. 66, s. 47. 
 
 (A) 11 & 12 Vict. c. 78, 5. 1. 
 
 2 G 2 
 
452 PE0CEEDING8 AFTEK TKIAL. 
 
 the sheriff or gaoler in whose custody the person con- 
 victed is ; to whom a certificate of such order is trans- 
 mitted by the clerk of the assize, or of the peace («). 
 The court may send the case back for amendment ; and 
 after that has been effected, judgment will be deli- 
 vered (k). 
 
 No appeal. The determination of any such question in the 
 
 manner indicated above is final and without appeal (l). 
 
 (0 11 & 12 Vict. ^. 78, ». 2. 
 
 {k) Ibid. s. 4. 
 
 (0 36 & 37 Vict. c. 66, s. 47. 
 
( 453 ) 
 
 CHAPTEK XXIII. 
 
 REPRIEVE AND PARDON. 
 
 A REPBiEVE (reprendre) is the withdrawing of a sentence Reprieve: 
 for an interval of time; whereby the execution of a 
 criminal ia suspended (m). 
 
 Eeprieves may be granted either : — 
 
 i. By the Crown {ex mandato regis) at its discretion ; by Crown ; 
 its pleasure being signified to the court by which exe- 
 cution is to be awarded. 
 
 ii. By the court empowered to award execution, either by court. 
 before or after verdict {ex arhitrio judicis). Generally 
 it must be guided by its own discretion, as to whether 
 substantial justice requires it, as for example, when it 
 is not satisfied with the verdict. But in two cases the 
 court is bound to grant a reprieve, (a.) When a woman 
 sentenced to death is ascertained to be pregnant. To 
 discover whether she is quick with child a jury of 
 twelve matrons is empanelled. If so found, she is re- 
 prieved until either she is delivered or proved by the 
 course of nature not to have been with child at all. 
 But after she has been once delivered, she cannot be 
 reprieved on this ground a second time, (b.) When the 
 prisoner becomes insane after judgment. We have 
 already seen that the occurrence of insanity in the 
 prisoner is a stay to proceedings at any stage. 
 
 Pardon. — The exercise of the prerogative of pardon- pardon. 
 
 (m) 4 Bl. 394. 
 
454 
 
 REPEIEVE AND PABDON. 
 
 ing is at the absolute discretion of the sovereign. If, 
 either from the opinion of judges represented to him, 
 or for any other reason, the Home Secretary thinks the 
 case a fit one for the interposition of royal mercy, he 
 recommends the same to the Queen, and she usually 
 acts on the recommendation. 
 
 Pardon, when The Sovereign cannot pardon where private interests 
 granted!' ^ *^® principally concerned in the prosecution of offenders 
 " non potest rex gratiam facere cum injwia et damno 
 aliorum " — for example, a common nuisance cannot be 
 pardoned while it remains unredressed. But a recent 
 statute («.) enables the sovereign to remit penalties; 
 although they may be wholly or in part payable to 
 some other than the Crown (o). There is another case 
 in which the offender cannot be pardoned, namely, when 
 he is guilty of the offence of committing a man to 
 prison out of the realm (p). It should also be noticed 
 that a pardon cannot be pleaded to an impeach- 
 ment so as to stifle the inquiry. But of course the 
 person impeached and sentenced may be afterwards 
 pardoned (g'). 
 
 H6w made out A pardon must be by warrant under the great seal, 
 and how con- ^j. ^j^^qj. ^]^q gign manual. As a rule, it is to be taken 
 
 strued. *-' • n • i 
 
 most beneficially for the subject and against the 
 Queen (r). 
 
 Conditional A pardon may be conditional — the most frequent 
 
 pardon. example of which is when a person sentenced to 
 
 death is pardoned on the condition that he submit 
 to punishment either of penal servitude or imprison- 
 ment (s). 
 
 (») 22 Vict. c. 32. 
 
 (o) See also 24 & 25 Vict. e. 96, s. 109 ; c. 97, ». 67. 
 
 Ip) 31 Car. 2, c. 2. 
 
 (g) 12 & 13 Wm. 3, c. 2, s. 12. 
 
 (r) See further 4 St. Bl. bk. vi. c. 25. 
 
 (s) V. 5 Geo. 4, 0. 84; 20 & 21 Vict. u. 3. 
 
BEPBIEVE AND PARDON. 455 
 
 Ticket of Leave. 
 
 In connection with the subject of pardon, it will be Ticket of leave. 
 convenient to notice the case of those who are allowed 
 to be at large before the expiration of their term of 
 confinement. 
 
 When any person is sentenced to penal servitude or 
 imprisonment, the Queen, by order in writing under 
 the hand and seal of the secretary of state, may grant 
 him a licence to be at large in the United Kingdom and 
 the Channel Islands, or in such part thereof respectively 
 as in such licence shall be expressed, during such por- 
 tion of the term of penal servitude or imprisonment, 
 and upon such conditions as Her Majesty thinks fit. 
 But the licence may be revoked or altered at the Queen's Forfeiture, &c. 
 pleasure. It will be forfeited in the event of (a) a 
 subsequent conviction, (b) of failure to report himself 
 to the police unless prevented by unavoidable cause, 
 (c) of changing residence without due notification. On 
 the subsequent conviction the offender will first sufi'er 
 the punishment attached to such offence, and then finish 
 his original term. If the licence is revoked, the convict 
 may be apprehended and sent back to the prison from 
 which he came to undergo the residue of his sentence ; 
 or he may be sent to any other prison wherein convicts 
 under sentence of penal servitude may lawfully be 
 confined. 
 
 Certain offences connected with these licences sub- offences by 
 ject the holders to imprisonment for a term not ex- holers. 
 ceeding three months, on summary conviction. The 
 holder of a licence suspected of committing an offence 
 may be apprehended without a warrant (t). 
 
 In the case of those sentenced to penal servitude, the Remission, how 
 
 regulated. 
 
 (i) 16 & 17 Vict. c. 99, ss. 9-11 ; 20 & 21 Vict. c. 3, ». S ; 27 & 28 
 Vict, c. 47, ss. 4-10; 34 & 35 Vict. c. 112, ss. 3-5. 
 
456 EEPEIEVE AND PAEDON. 
 
 remission of a part of the term, proportioned to the 
 number of years contained in the sentence, follows as a 
 matter of course if the convict conducts himself well. 
 But if the sentence is penal servitude for life, the 
 special order of one of the secretaires of state is 
 required. 
 
( 457 ) 
 
 CHAPTEK XXIV. 
 
 EXECUTION. 
 
 Execution is carried out by the sheriff or his deputy, Execution, 
 thus giving effect to the sentence of the judge. It is 
 the usage for the judge, at the end of the assizes, to 
 sign the calendar containing the prisoners' names and 
 sentences. This is left to the sheriff as his warrant 
 and authority; and if he receive no special order to 
 the contrary, he executes the judgment therein con- 
 tained. 
 
 The criminal is usually executed about a fortnight Time and place. 
 or three weeks after his sentence An execution for 
 murder must take place within the walls of the prison 
 in which the offender is confined at the time (m). 
 
 If the execution be not by the proper officer, or if Manner. 
 not carried out in strict conformity with the sentence, 
 as if the criminal is beheaded instead of hanged, the 
 official is guilty of murder. If the criminal survives, 
 he must be hanged again, inasmuch as the sentence is 
 that he be hanged by the neck till he is dead. 
 
 (w) 31 Vict. u. 24, ». 2. 
 
( 458 ) 
 
 BOOK'IY. 
 
 SUMMAEY CONVICTIONS. 
 
 Summary con- A OEETAiN class of convictions are described as " sum- 
 victions. j^g^j.y „ ^^ distinguish them from such as follow after a 
 
 regular trial on an indictment or information. The 
 essence of summary proceedings is the absence of the 
 intervention of a jury; the person accused being 
 acquitted or condemned by the decision of the person 
 who is instituted judge. Blackstone viewed with ap- 
 prehension the extension of this mode of proceeding, 
 which threatened the disuse of trial by jury. The ten- 
 dency still exists " to multiply classes of crimes which 
 entail the lowest order of punishment, and require for 
 investigation the lowest rank of judicial tribunals " (a). 
 
 The only class of summary proceedings which is to 
 be dealt with in this chapter is by far the most exten- 
 sive and important — Svmmary convictions "before magis- 
 trates out of Quarter Sessions (h). 
 
 Jurisdiction of The Original functions of justices of the peace, when 
 how'accmfrcd ^°* ^^ general or quarter sessions, were chiefly to 
 prevent breaches of the peace and to cause offenders to 
 be apprehended. But' their jurisdiction has been gra- 
 dually extended. A great number of minor offences 
 can be dealt with satisfactorily without the expense 
 and delay of bringing them before the ordinary courts. 
 
 (a) Amos' Jurisprudence, 303. 
 
 (b) We have already noticed a form of summary proceeding in the event 
 of contempt of court (v. p. 98). Another class comprises the proceedings 
 before Commissioners of Inland Revenue ; but there is no need to enter 
 into the details of this subject, v. 7 & 8 Geo. 4, c. 53 ; 15 & 16 Vict, 
 u. 61. 
 
SUMMARY CONVICTIONS. 459 
 
 Accordingly from time to time authority has been con- 
 ferred by statute on the magistrates to examine into 
 such offences and punish the offenders. It is only in 
 virtue of legislative enactments that they act in this 
 capacity. In some cases the offenders are punished Punishments. 
 merely by the infliction of a pecuniary penalty. In 
 other cases the magistrates are empowered to punish 
 by a penalty or imprisonment with hard labour not 
 exceeding six months ; or, if there has been a previous 
 conviction, twelve months. And in any case where a 
 person has been, on summary conviction, ordered to pay 
 a penalty not exceeding £5, on his failure to do so, he 
 may be committed to prison for a period not exceeding 
 two months (c). 
 
 Of course the jurisdiction of a magistrate is local, Local limita- 
 and not personal; that is, he can exercise it only in Miction ^""*" 
 his own county, borough, or other district. And, as a 
 general rule, the jurisdiction is further limited to 
 offences committed within such county, borough, or 
 district. But, by some statutes, the magistrates have 
 jurisdiction if the offender resides or is apprehended in, 
 or the goods are found in, the county, &c. (d). 
 
 In some cases one justice may act by himself, in How many 
 others the statute requires the presence of more. But ^'Jfj^^'^j^^ ^^' 
 metropolitan police magistrates, city of London magis- 
 trates, and stipendiary magistrates have, within their 
 jurisdiction, power in most cases to do alone whatever 
 is authorized to be done by one or more justices (e). 
 
 The magistrates have no jurisdiction to hear and No jurisdiction 
 determine cases in a summary manner where property o^tithin^uel 
 or title is in question, though, if it had not been tion. 
 for such question, they would have had cognizance 
 thereof. 
 
 (c) 28 & 29 Vict. c. 127. 
 
 (d) For example, 11 Geo. 2, c. 19 ; 17 & 18 Vict. c. Wi, s. 520. 
 
 (e) Paley, Sum. Couv. 34. 
 
460 
 
 SUMMAEY CONVICTIONS. 
 
 We shall first notice some of the chief offences 
 which have been made the subjects of summary pro- 
 ceedings, and then inquire into the nature of such 
 proceedings. 
 
 Most import- Under the former branch of the subject the following 
 
 ant offences i j^ re ' i. i. i. I'ii 
 
 punishable on classcs 01 oflences require treatment, as being the 
 
 summai-y con- most important : — Common Assaults ; Small Larcenies, 
 
 &c. ; Small Wilful Injuries ; Offences relating to Game. 
 
 Certain provisions for summary proceedings in the case 
 
 of Juvenile Offenders also demand attention. 
 
 Assaults, &c. 
 
 Dismissal of 
 the case. 
 
 1. Common Assaults and Batteries. 
 
 When any person unlawfully assaults or beats 
 another, two magistrates, upon complaint of the party 
 aggrieved, may hear and determine such offence, and 
 may inflict a fine to the extent of £5 (and in default 
 of payment, two months imprisonment), or may sen- 
 tence to imprisonment not exceeding two months. If 
 the person assaulted, &c., is a male child under the age 
 of fourteen, or a female of any age, the offender may 
 be fined to the extent of £20, or imprisoned for a term 
 not exceeding six months. He may also be bound 
 over to keep the peace for a further period of six 
 months (/). 
 
 If the magistrates, upon the hearing of any such 
 case, deem the offence not proved, or find the assault or 
 battery to have been justified, or so trifling as not to 
 merit any punishment, and accordingly dismiss the 
 complaint, they make out and deliver to the party 
 charged a certificate stating the fact of such dis- 
 missal (g). This certificate, or the conviction (if the 
 punishment has been suffered), is a bar to any other 
 proceedings, civil or criminal, for the same cause {h). 
 
 (/) 24 & 25 Vict. c. 100, ss. 42, 43. 
 ((/) Ibid. o. 44. 
 (A) Ibid. 5. 45. 
 
SUMMARY CONVICTIONS. 461 
 
 But if the magistrates find that the assault or Committal for 
 battery was accompaiiied by an attempt to commit a *"*'■ 
 felony, or think, from any other circumstance, that it is 
 a fit subject for prosecution by indictment, they abstain 
 from adjudication, and send the case for trial. They 
 may not determine any case of assault or battery in 
 which a question arises as to the title to any lands, 
 tenements, or hereditaments, or any interest therein or 
 accruing therefrom, or as to any bankruptcy or insol- 
 vency, or any execution under the process of a court of 
 justice (i). 
 
 2. Small Larcenies, &e. 
 
 Under this head an important distinction is to be Two classes of 
 made. We shall first treat of such unlawful takings J^'j^™^^^;°°°" 
 of property as are punishable on summary conviction, indictable. 
 but which do not amount to larceny in the strict sense 
 of the term, inasmuch as they cannot be made the 
 subject of indictment. In the second place, we shall 
 consider the jurisdiction given to magistrates, in certain 
 cases ^ and under certain circumstances, to hear and 
 determine offences which might be made the subject of 
 indictment as larcenies, but which, in virtue of the 
 special statutory authority, may be disposed of by the 
 magistrates. 
 
 (a.) The taJcini/ of personal properly, trees, &e. — Al- Non-indictable 
 most every possible injury in the nature of an illegal *^''='^"'^^- 
 taking of personal property, or of things annexed to the 
 realty, when not indictable, is punishable before one or 
 more justices under the Larceny Consolidation Act, 
 1861 {h). 
 
 In some cases after one summary conviction, in some Subsequent 
 
 offences. 
 
 (i) 24 & 25 Vict. >;. 100, s. 46. 
 
 (A) 24 & 25 Vict. t. 96; dogs, ss. 18, 19 ; deer, ss. 12, 14, 15 ; rabbits, 
 s. 17 ; beasts or birds ordinarily kept in confinement, but not subjects of 
 larceny, pigeons, fish, &c., ss. 21-24; trees, fences, vegetable productions, 
 &c., ss. 33-37. 
 
462 
 
 SUMMARY CONVICTIONS. 
 
 Jurisdiction as 
 to indictable 
 larcenies, 
 
 cases after two summary convictions for the offence, 
 such offence amounts to a felony, and is indictahle as 
 larceny (T). The punishment for receiving stolen pro- 
 perty when the original offence is punishable on 
 summary conviction is the same as for the original 
 offence (m). 
 
 (b.) Larcenies. — Arecent Act (n) has given to the jus- 
 tices at petty sessions authority, under certain circum- 
 stances, to hear and determine cases of larceny. The 
 same authority has been extended to cases of embezzle- 
 ment (o). Here, again, two classes must be distin- 
 guished : — 
 
 i. Where the ground of conferring the jurisdiction 
 is the smallness of the extent of the crime. 
 
 ii. Where the ground is the consent of the prisoner 
 that the case should be so disposed of, he plead- 
 ing guilty. 
 
 on the grouni 
 of the insigni- 
 ficance of the 
 crime. 
 
 i. When the value of the property stolen or em- 
 bezzled, in the judgment of the justices, does not exceed 
 the sum of five shillings ; or when the charge is one of 
 attempt to commit larceny from the person or simple 
 larceny, the justices may deal with the case. 
 
 Conviction. 
 
 Dismissal. 
 
 If the accused confesses, or if, after hearing the whole 
 case for the prosecution and defence, the justices find 
 the charge proved, they may convict the accused, and 
 commit him to prison for a period not exceeding three 
 months. If they consider it not proved, or deem it 
 inexpedient to inflict any punishment, they dismiss the 
 accused and give to him a certificate of such dismissal. 
 
 (0 See 24 & 25 Vict. u. 96, ss. 9, 12, 18, 19, 20, 21, 33, 34, 36, 37. 
 
 (m) Ibid. s. 97. 
 
 (n) 18 & 19 Vict. ,;. 126. 
 
 (o) 31 & 32 Vict. c. 116. 
 
SUMMARY CONVICTIONS. 463 
 
 This certificate of dismissal or a conviction is a bar to 
 further proceedings for the same cause (p). 
 
 These summary proceedings will not be adopted, but When case 
 the case will be sent for trial: (a) if the accused does ^^f^.;^^, '""* 
 not consent to have the case so disposed of ; (b) if it 
 appears that the offence is one which, owing to previous 
 conviction, is punishable by penal servitude ; (c) if the 
 magistrates are of opinion that on any other ground 
 the charge is a fit subject for prosecution by indict- 
 ment (q). 
 
 In order to find out whether the accused consents to Consent of the 
 the charge being thus summarily determined, one of p^'*'"'^'^ .''^'^"''^ 
 
 _ , ^ l116 C3.S6 IS 
 
 the magistrates, after the examination of all the wit- summarily dis- 
 nesses for the prosecution, before calling on the accused ^"^^^ °^' 
 for his defence, states to him the substance of the 
 charge, and asks him whether he wishes it to be tried 
 by .them or sent on to the sessions or assizes. If he 
 consents, they then take his plea and determine the 
 case in the ordinary summary way (r). 
 
 ii. In cases of simple larceny or embezzlement (the Jurisdiction on 
 property alleged to have been stolen or embezzled sent'and''con-" 
 exceeding in value five shillings (s) ), or of stealing from fession of pri- 
 the person, or of larceny as a clerk or servant, the ^°°^'^' 
 justices at petty sessions have the following jurisdic- 
 tion : — If, when the case on the part of the prosecution 
 is completed, the evidence appears sufficient to put the 
 person charged on his trial, the justices, if they think 
 that the case is one which may be disposed of in a 
 summary manner, aijd may be adequately punished 
 under the power of this Act, reduce the charge to 
 writing, and read it to the accused, and ask him whether 
 he is guilty or not guilty. If he pleads guilty, they 
 
 O) IS & 19 Vict. c. 126, ss. 1, 12. 
 
 (?) Ibid. s. 1. 
 
 (r) Ibid. s. 2. 
 
 (s) Otherwise the charge would be dealt with as in the last section. 
 
464 SUMMARY CONVICTIONS. 
 
 may convict, and commit him to prison for a term not 
 exceeding six months ; if he pleads not guilty the case 
 is sent on for trial. But, before asking him whether 
 he is guilty or not guilty, the justices explain to him 
 that he is not obliged to plead or answer before them 
 at all, and that if he does not, he will be committed for 
 trial in the usual course (f). 
 
 Proceedings In proceedings under this Act the accused may make 
 
 un er t is ct. ^ £^j^ defence and examine the witnesses by counsel or 
 attorney (u). The justices may order the restitution 
 of the property, as on a trial upon indictment («). 
 The effect of a conviction under this Act is the same as 
 of a conviction upon indictment for the same offence (y). 
 Proceedings under this Act are a bar to any further 
 proceedings for the same cause (2). 
 
 3. Small wilful Injuries. 
 
 Wilful injuries. Every possible injury to property, when not indict- 
 able, is punishable on summary conviction under the 
 Malicious Injuries to Property Act, 1861 (a). Thus, it 
 is provided that any person committing damage to any 
 property, in any case not previously provided for, may, 
 on conviction before a justice of the peace, be imprisoned 
 for a term not exceeding two months, or fined to the 
 extent of £5, and also ordered to make compensation 
 not exceeding £5. In default of payment of these 
 sums the offender may be imprisoned for a term not 
 exceeding two months (h). Particular sections also 
 deal with certain cases of injury, which are thus ex- 
 
 (i) 18 & 19 Vict. c. 126, s. 3. 
 
 (m) Ibid. s. 4. This and the following matter relate to both divisions 
 (i. and ii.) of this subject, 
 
 (x) Ibid. s. 8. 
 
 ((/) Ibid. s. 11. 
 
 (4 Ibid. s. 12. 
 
 (a) 24 & 25 Vict. c. 97. 
 
 (6) Ibid. s. 52. If the injury exceeds in amount £5 the ofFL'nce is, by 
 s. 51, a misdemeanor. 
 
StTMMABY CONVICTIONS. 465 
 
 eluded from the operation of the general clause (c). In 
 some cases a second or third offence amounts to a felony 
 or misdemeanor (d). 
 
 4. Offences relating to Game. 
 
 Among a great number of offences relating to game Game ofifences. 
 punishable on summary conviction, the following may 
 be noticed : — 
 
 To obtain game by unlawfully going on any land in 
 search for game, or to use guns, &c., for taking game, 
 or to act as an accessory, is punishable by penalty to 
 the extent of £5 ; the game and instruments being 
 forfeited (e). 
 
 By night unlawfully to take or destroy game or 
 rabbits, or enter with gun, &c., for the purpose of 
 taking or destroying game, is punishable for the first 
 offence by imprisonment to the extent of three months, 
 for the second to the extent of six months (/). 
 
 JUVENILE OFFENDERS. 
 
 Eecent legislation has had in view " the demoraliza- juvenile 
 tion of juvenile delinquents from protracted imprison- ^"^'j^'^^ft],''""^ 
 ment with older offenders before trial." Two Acts (g) 
 have been passed to procure the more speedy trial and 
 punishment of such youths who are charged .with 
 larceny, or some similar crime. 
 
 The effect of these two statutes construed together 
 is, that any person who, in the opinion of the justices, 
 does not exceed the age of sixteen years, who is 
 
 (e) Trees, vegetable productions, &c., ss. 22-24 ; fences, walls, gates, 
 s^ 25 ; telegraphs, ss. 37, 38 ; animals not cattle, s. 41 . 
 
 (d) 24 & 25 Vict. 97, ss. 22, 23. 
 
 («) 25 & 26 Vict. c. 114, s. 2. 
 
 (/) 9 Geo. 4, c. 69, ». 1. See also chapter on game, p. 140 ; 1 & 2 Wra. 
 4, c. 32 ; 7 & 8 Vict. c. 29. 
 
 ((/) 10 & 11 Vict. u. 82 ; 13 & 14 Vict. u. 37. 
 
 2 H 
 
4R6 
 
 SUMMARY CONVICTIONS. 
 
 charged with committing, attempting, or aiding to 
 commit any offence which now is, or hereafter may be, 
 hy law declared to be simple larceny, or punishable as 
 simple larceny, may, on conviction before two or more 
 justices of the peace assembled in open court in petty 
 sessions, be imprisoned for a term not exceeding three 
 months, with or without hard labour ; or may be fined 
 to the extent of £3; or, if a male under the age of 
 fourteen, may be whipped instead of, or in addition to, 
 the other punishment {h). 
 
 Dismissal. The justices may dismiss the accused if they deem 
 
 the offence not proved, or that it is not expedient to 
 inflict punishment ; with or without requiring sureties 
 for good behaviour. The accused is furnished with a 
 certificate of such dismissal (j). 
 
 When such These summary proceedings will not be resorted 
 
 ceeding7a?r' *° • (*) ^^ ^^^ justices are of opinion, before the accused 
 not resorted to. has made his defence, that the charge is a fit subject 
 for prosecution by indictment ; (b) if the accused, on 
 being asked whether he wishes the charge to be tried by 
 a jury (which question must always be put), objects, or 
 one of his parents objects, to the case being summarily 
 disposed of under the provisions of these Acts {k). 
 
 Proceedings under these Acts are a bar to further 
 proceedings for the same cause (J). The justices may 
 order restitution of the stolen property (to). 
 
 Summary 
 proceedings. 
 
 PKOOEEDINGS UPON SUMMARY CONVICTIONS. 
 
 The law upon this subject was consolidated in one of 
 Jervis's Acts (ra). It should be premised that the Act 
 
 (h) 10 & 11 Vict. c. 82, s. 1 ; 13 & 14 Vict. c. 37, s. 1. 
 
 (!) 10 & 11 Vict. c. 82, s. 1. 
 
 (/j) Ibid. ; 13 & 14 Vict. c. 37, s. 2. 
 
 (0 10 & 11 Vict. u. 82, 's. 3. 
 
 (m) Ibid. s. 12. 
 
 (n) 11 & 12 Vict. c. 43. The other two are chapters 42 and 44 of the 
 
SUMMARY CONVICTIONS. 467 
 
 does not extend to informations, complaints, or other 
 proceedings tinder any statute relating to the excise, 
 customs, stamps, taxes, or post office, nor to convictions 
 under the Factory Acts, nor to a few other matters 
 specially mentioned (o). 
 
 The following is an outline of the proceedings : — The informa- 
 An information is laid before a justice of the peace ''""■ 
 that a person has committed, or is suspected to have 
 committed, an offence, for which he is liable on 
 summary conviction to be imprisoned, fined, or other- 
 wise punished. This information gives the justice 
 jurisdiction, and limits his inquiry to the matter con- 
 tained therein. It must be laid (unless a particular 
 period is fixed by the statute on which it is founded) 
 within six months from the time when the matter 
 arose (p). It must be laid before a magistrate by the 
 informant in person, or by his counsel or attorney, or 
 other person authorized in that behalf (g-). It need 
 not be in writing, unless it is directed so to be by 
 the statute, though of course it usually is in writing, 
 and 11 & 12 Vict. c. 43 seems to assume this (r). Nor, 
 as a rule, need it be on oath, unless a warrant to ap- 
 prehend the person charged is issued in the first 
 instance instead of a summons, in which case the 
 matter of the information must be substantiated by the 
 oath or affirmation of the informant, or of some witness 
 on his behalf before the warrant is issued (s). 
 
 The next step is the issue of the summons, directed The summons. 
 to the accused, and stating shortly the matter of the 
 
 same year; the former dealing with the performance of the duties of jus- 
 tices out of sessions with respect to persons charged with indictable oifences 
 (v. p. 313) ; the latter is an Act to protect justices from vexatious actions 
 for acts done by them in the execution of their office. 
 
 (o) 11 & 12 Vict. c. 43, o. 35. 
 
 Xp) Ibid. s. 11. 
 
 ((/) Ibid. s. 10. V. Paley, Sum. Con. 69. 
 
 (r) Paley, Sum. Con. 73. Oke Mag. Syn. 107. 
 
 (s) Ibid. s. 10 ; see also s. 2. For forms, v. Oke's Mag. Formulist, pp. 
 7-10 ; see also Oke's Mag. Syn. pp. 108, ct seq. 
 
 2 H 2 
 
468 
 
 8UMMABY CONVICTIONS. 
 
 information, and requiring him to appear at a certain 
 time and place to answer the information, a^nd to be 
 dealt with according to law. The summons is served 
 by the proper officer on the party charged personally, 
 or at his last or usual abode (f). 
 
 -Issue of a If the pcrsou so served with a summons does not 
 
 appear at the time and place specified, provided a rea- 
 sonable time has intervened between the summons and 
 the day appointed, the justice or justices may, upon the 
 matter of the information being to their satisfaction 
 substantiated by oath or affirmation, issue a warrant to 
 apprehend the accused. Authority is given to them to 
 issue a warrant in the first instance instead of issuing a 
 summons, if they think fit, on the information being to 
 their satisfaction substantiated by oath or affirma- 
 tion (m) This warrant must state shortly the matter 
 of the information, must be under the hand and seal 
 of the justices issuing it, and be directed to the con- 
 stable, in whose hands it remains in force until 
 executed. It may be executed by apprehending the 
 accused at any place within the jurisdiction of the 
 issuing justice, or out of such jurisdiction on being 
 indorsed or backed by a magistrate of the jurisdiction 
 in which the defendant is (x). 
 
 Hearing in tiie A second course may be pursued if the summons, 
 accused "'^ '''^ having been duly served, is not obeyed. The justices 
 may proceed ex farte to the hearing of the information, 
 and may adjudicate thereon, as fully and effectually as 
 if the party had personally appeared in obedience to 
 the summons. But this does not dispense with the 
 necessity for the due examination of the facts upon 
 oath (?/). 
 
 (0 11 & 12 Vict. c. 43, s. 1. 
 (m) Ibid. s. 2. 
 (x) Ibid. s. 3. 
 (y) Ibid. s. 2. 
 
SUMMARY CONVICTIONS. 469 
 
 To secure the attendance of witnesses for the pro- Attendance of 
 sedition and for the accused they may be served with witnesses, how 
 
 T •/> 1 ■ • T 1 1 • 1 secured. 
 
 a summons, and, if this is disobeyed, with a warrant. 
 Or, if the justice is satisfied on oath or affirmation 
 that the witness will not attend to give evidence 
 unless compelled, a warrant to secure such attendance 
 may be issued in the first instance (2). 
 
 The hearing takes place before one or more justices, The hearing. 
 the number being determined by the particular Act 
 making the offence subject to the summary proceed- 
 ings, or, if there is no direction on this point, before 
 one justice of the jurisdiction where the matter has 
 arisen. The place of hearing is to be deemed an open 
 court. The accused may make full defence and call 
 witnesses, and either party may be represented by 
 counsel or attorney (a). 
 
 If the defendant fails to appear, the justice may Failure of 
 proceed to hear and determine, or may adjourn. If °^^„^^y '" 
 the defendant appears, and the prosecutor does not, 
 the magistrate may dismiss the complaint or adjourn 
 the hearing, and commit or discharge the defendant on 
 his entering into due recognizances (b). The magis- Adjournment, 
 trate has power to adjourn the hearing, and commit 
 the defendant for the interval, or sufi'er him to go at 
 large, or discharge him on his entering into recog- 
 nizances with or without sureties. If he fails to re- 
 appear the magistrate may transmit the recognizances 
 to the clerk of the peace to be proceeded upon in like 
 manner as other recognizances (c). 
 
 But if both the parties appear, the following are the Proceedings at 
 proceedings. The substance of the information is read *'^^ bearing, 
 to the defendant, and he is asked if he has any cause 
 
 (^z) 11 & 12 Vict. c. 43, s. 7, 
 (a) Ibid. s. 12. 
 (6) Ibid. s. 13. 
 (c) Ibid. s. 16. . 
 
470 
 
 StTMMAET CONVICTIONS. 
 
 to shew why he should not be convicted. If he admits 
 the truth of the information, and does not shew any 
 cause why he should not be convicted, the justice 
 proceeds to convict and pass judgment. If he does 
 not admit the truth of the charge the magistrate pro- 
 ceeds to hear the prosecutoi, and such witnesses as he 
 may examine (every examination being on oath or 
 affirmation (d) ), and such other evidence as he may 
 adduce ; then to hear the defendant, and his witnesses, 
 and other evidence ; after that to hear witnesses the 
 prosecutor may examine in reply, if the defendant has 
 examined any witnesses or given any evidence other 
 than to his general character. But the prosecutor is 
 not entitled to make any observations upon the evidence 
 given by the defendant, nor the defendant to make any 
 observations upon the evidence given by the prose- 
 The decision, cutor in reply. The magistrate then considers the 
 whole matter, and determines the same by convicting 
 the defendant or dismissing the information. If there 
 are more magistrates than one the result is deter- 
 mined by the opinion of the majority ; if they are 
 equally divided there may be a fresh information or 
 adjournment to next sitting. If he (or they) convict, 
 he makes a memorandum thereof, and the conviction 
 being drawn up in proper form is lodged with the 
 clerk of the peace to be filed among the records of the 
 general quarter sessions. If the information is dis- 
 missed, the magistrate must give a certificate of the 
 order of dismissal to the defendant, and this will be a 
 bar to a subsequent information or complaint for the 
 same matter against the same person (e). 
 
 The judgment. The judgment consists of two parts, namely, the ad- 
 judication of conviction, and the sentence or award of 
 punishment. This punishment may be either fine or 
 imprisonment, or both, according to the direction of 
 
 (d) 11 & I'-J Vict. c. 43, s. 15. 
 (0 Ibid. p. 14. 
 
SUMMARY CONVICTIONS. 471 
 
 the statute under which the offence falls, which statute 
 also defines the limits of the punishment. Sometimes 
 satisfaction to the wrongdoer may be ordered without 
 the infliction of any other punishment (/). Again, 
 sometimes the information may be dismissed without 
 the infliction of any punishment, if it is inexpedient to 
 inflict punishment {g), or the offence is too trifling (h). 
 
 The mode of enforcing payment of pecuniary fines is Payment of 
 by distress and sale of the goods and chattels of the ''''^^■ 
 person convicted. For this purpose the justice issues 
 a warrant of distress, which is executed by the con- 
 stable. But if it appears that issuing a warrant of 
 distress would be ruinous to the defendant, or if, by 
 confession of the defendant or otherwise, there are 
 manifestly no goods whereon to levy a distress, the 
 defendant may be committed to prison at once. And, 
 as a rule, in default of sufficiency of distress, he may be 
 committed (t). Power is also given to the magistrate 
 to order commitment in the first instance for non-pay- 
 ment of a penalty or other sum ordered to be paid (Jc). 
 
 As to costs. — On conviction, the magistrate may Costs. 
 order the defendant to pay the prosecutor's costs. On 
 dismissal, the magistrate may order the prosecutor to 
 pay to the defendant such costs as seem reasonable, the 
 amount to be specified in the order of dismissal, and 
 recovered as penalties are (Z). 
 
 As to appeal from the decision of the magistrate. — Appeal. 
 Two kinds of appeal must be distinguished : (i.) the 
 ordinary appeal to the quarter sessions ; (ii.) the appeal 
 to a superior court on a case stated by the justices out 
 of sessions. 
 
 (/) V. 24 & 25 Vict. c. 96, s. 108 ; c. 97, s. 6H. 
 
 (g) 18 & 19 Vict. c. 126, s. 1 ; 26 & 27 Vict. ». 103, s. 1. 
 
 (A) 24 & 25 Vict. c. 100, s. 44. 
 
 (i) 11 & 12 Vict. C.43, ss. 19, 21. 
 
 (/4) Ibid. s. 23 ; see also s. 24. 
 
 (/) Ibid. ss. 18, 26 ; see also s. 24. 
 
472 
 
 SUMMARY CONVICTIONS. 
 
 sions. 
 
 Appeal to i. The ordinary appeal from a conviction by the 
 
 quarter ses- magistrate is to the quarter sessions. But it is not a 
 matter of common right ; it must be given by express 
 enactment, and is confined to the cases referred to in 
 such enactment. Two of the Criminal Consolidation 
 Acts (the Larceny, and Malicious Injuries Acts) confer 
 a right to appeal when, on summary conviction, the sum 
 adjudged to be paid exceeds £5, or the imprisonment 
 adjudged exceeds one month, or where the conviction 
 has taken place before one justice only (m). 
 
 Some statutes provide that the convicting magistrate, 
 at the time of the conviction, shall make known to the 
 party his right to appeal (n). 
 
 In some cases execution is not stayed by the appeal j 
 but it generally is. The statutes generally require 
 that notice of appeal should be given to the magistrate, 
 or prosecutor, or both, and that recognizances should 
 be entered into to prosecute and pay costs. The usual 
 time of appeal is the next quarter sessions of the 
 county or borough, and if no limits are specified, the 
 appeal must take place within a reasonable time. 
 Fresh evidence may be given on the hearing of the 
 appeal. The magistrates may without fee explain the 
 facts and grounds of their decision to the court (o). 
 The decision of the quarter sessions is by a majority of 
 votes, and is pronounced by the chairman. Such 
 decision is conclusive, though erroneous, unless a case 
 is reserved for the consideration of the Queen's Bench 
 Division. 
 
 Case for Instead of the appeal of which notice has been 
 
 opinion of 
 
 superior court. — 
 
 (m) 24 & 25 Vict. c. 96, s. 110 : c. 97, s. 68. A reference to the tables 
 in Oke's Magisterial Synopsis will shew in what cases there is appeal. 
 There is no appeal among other cases in common assaults, larcenies under 
 18 & 19 Vict. c. 126, or the Juvenile Offenders' Act, drunkenness, &c. 
 
 (re) e.g., 17 Geo. 3, c. 54, s. 26. 
 
 (o) 15 & 16 Vict. c. 26. 
 
SUMMARY CONVIOTIONS. 473 
 
 given being heard by tbe quarter sessions, the parties 
 may, by consent and order of any jndge of the superior 
 common law courts, state the facts of the case in the 
 form of a special case for the opinion of the superior 
 court, and agree to abide by its judgment, which will 
 have the same effect as if given by the quarter sessions 
 on appeal (p). 
 
 ii. If a party to an information determinable by case submitted 
 iustices in a summary way is dissatisfied with their *■" superior 
 
 3 . . , . '' "" ■ -./.i 1 court on point 
 
 decision as being erroneous m point or law, he may of law. 
 obtain the opinion of a superior court of law thereon 
 by means of a case stated and signed by the justices 
 for that purpose {q). But if the magistrates think 
 that the application for the case is frivolous, they may 
 refuse to state it, unless the attorney-general directs 
 them so to do (r). This resort to a superior court 
 operates as an abandonment of the right of appeal to 
 the quarter sessions (s). Certain conditions have also 
 to be complied with. The application must be made 
 within three days after the decision of the magistrates, 
 and the case must be transmitted to the superior court 
 within three days after the appellant has obtained it, 
 he giving due notice to the respondent. He must also 
 enter into recognizances to prosecute the appeal with- 
 out delay, and to pay costs, and to appear to receive 
 judgment, unless the decision is reversed {t). 
 
 When there is any fault or illegality in the commit- irregular 
 ment alone, the proper remedy is for the defendant to cmmitmeat. 
 sue out a writ of habeas corpus, which will be directed 
 to the gaoler in whose custody the defendant is. 
 
 The proceedings may be removed from the justices Certiorari. 
 
 {p) 12 & 13 Vict. u. 45, ». II. 
 (?) 20 & 21 Vict. u. 4a, s. 1. 
 If) Ibid. ss. 4, 5. 
 (s) Ibid. s. 14. 
 (i) Ibid. S3. 1, 2. 
 
474 
 
 SUMMARY CONVICTIONS. 
 
 to the Queen's Bench Division, for the purpose of being 
 examined hy that court, by writ of certiorari. Unlike 
 the qualified right of appeal, this right lies of course 
 as a matter of common law, unless expressly taken 
 away by statute. As no writ of error lies on summary 
 convictions, this is the only mode in which a revision 
 of these proceedings by the superior court can be 
 obtained (m). 
 
 Proceedings It will uot be uecessary to do more than mention 
 
 against magis- ^^^ certain proceedings (in some cases civil, in some 
 
 trates. .... ^ , ° ^ . . . . . 
 
 criminal) may be taken against justices for any irregu- 
 larity or excess in their measures. As to criminal 
 steps, it may be stated generally that, " wherever the 
 . powers vested in justices for the summary execution of 
 penal laws are exerted from corrupt or personal 
 motives," the delinquent may be proceeded against by 
 criminal information, and punished accordingly ; but 
 "an information is never granted for an irregularity 
 arising merely from ignorance or mistake " {x). 
 
 Summary 
 jurisdiction 
 depends 
 entirely on 
 statute. 
 
 In conclusion, we may again draw attention to the 
 fact that the examination and punishment of offences 
 in a summary manner by justices of the peace, without 
 the intervention of a jury, is founded entirely upon a 
 special authority conferred and regulated by statute in 
 the case of each offence. No new offence is cognizable 
 in this manner, unless expressly made so by statute ; if 
 some statute does not authorize the summary proceed- 
 ing, the offence must be dealt with in the ordinary way 
 by indictment or information (y). 
 
 (u) Paley, Sum. Con. 402. 
 {x) Ibid. 482, 483. 
 (t/) Ibid. 16. 
 
TABLE OF OFFENCES. 
 
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 A. 
 
 Abandoning Childeen, 176 
 
 Abatement, 
 
 demurrer in, 368 
 
 plea in, 362 
 Abatement op Nuisance, 132 
 Abduction, 174 
 
 of woman on account of her fortune, 174 
 
 by force witli intent to marry, 175 
 
 of girl under sixteen, 175 - 
 
 knowledge of age, 176 
 Abettors, 34, n. 
 
 Abominable : v. Unnatusal Crime. 
 Abortion : v. Miscarriage. 
 Absconding Bankrupt, 116 
 
 acoessort, 
 
 distinguished from principal, 34 
 
 iefore the fact, 34 
 
 what answerable for, 35 
 
 in manslaughter, 35, 163 
 
 trial of, 35 
 
 after the fact, 36 
 
 by receiving stolen goods, 37 
 
 wife as, 37 
 
 trial and punishment, 37 
 
 no accessories in treason nor in misdemeanor, 38 
 
 accessories, where tried, 340 
 Accident, an exemption from criminal responsibility, 28 
 Accidental Homicide, 152 
 
 Accomplice, 34, n. 
 
 turning Queen's evidence, 359 
 evidence of, 395 
 
490 
 
 INDEX. 
 
 Account ant-General : v. Patmastbb-Gbnebal. 
 AoooDNTS, falsification of, 225, 253 
 Accusing oe Crime : v. Threatening. 
 Acquittal, 
 
 how proved, 420 
 
 consequences of verdict of, 426 
 
 Acts oe Parliament : v. Statutes. 
 
 Actual Bodily Harm, 179 
 
 Adhering to the Sovereign's Enemies, 49 
 
 Adjournment, 
 of trial, 432 
 in summary proceedings, 469 : v. Eemand. 
 
 Adjudication or Bankruptcy, how proved, 421 
 
 Administering, 
 
 chloroform, &c., 181 
 poison, &c., 181 
 voluntary oaths, 83 
 
 Administration op Justice, Libels on : v. Sedition. 
 
 Administration of Goods of Felon, 446 
 
 Admiralty, 
 
 robbery ■within the jurisdiction of, is piracy, 42 
 
 crimiaal jurisdiction of Court of, transferred to the Central 
 Criminal Court, 288, n. 
 
 offences committed within jurisdiction of, where tried, 341 
 Adulteration of Pood or Drugs, 135 
 Advertising Ebward fob Ebtubn of Stolen Peopbety, 93 
 Affidavit, administering voluntary, 84 
 Affirmation, 
 
 false, 79 
 
 of those objecting to oath, 391 : v. Oath. 
 Affbay, 103 
 
 aggravations, 103 
 
 suppression and punishment, 103 
 
 Aggravated : v. Compound Larceny. 
 
 Age of Discbbiion, 26 
 
 Agent, 
 
 embezzlement by, 225 
 
 trafllcking in property intrusted to his care, 226 
 
 charging property so intrusted, 226 
 
INDEX. 491 
 
 Agebbment to withdraw feom Prosecution, 432 
 
 Aider by Verdict, 325 
 
 Aiders and Abettors, 34, n. 
 
 Aiding Prisoner to Escape, 75 
 
 Alarm the Queen, attempt to, 53 
 
 Aliens : v. Foreigners. 
 
 Allegiance, seducing soldier from, 60 
 
 Alpaca, 
 
 larceny of, &c., 209 
 
 injuring machines or manufactures, 267 
 Altering, in forgery, 254 
 
 Ambassadors, how far amenable to the criminal law, 32 
 Amendment of Defects, 326 
 
 Animals, 
 
 larceny of, 193 
 
 killing in order to steal carcase, skin, &o., 196 
 
 killing, maiming, wounding, &c., 270 
 
 Animus Purandi, 
 
 possession of goods obtained with, 199 
 
 what it is, 204 
 
 must exist at time of taking, 204 
 
 Apostact, 70 
 
 Appeal, 
 
 none ordinarily in criminal cases, 447 
 under the Supreme Court of Judicature Act, 450 
 from summary conviction to quarter sessions, 297, 471 
 to superior court on case, 472, 478 
 
 Appeal, Trial bt, 369 
 
 Apprehension oe OrPBNDERS, rewards for, 311 : v. Arrest. 
 
 Apprentices, assaults on, 185 
 
 Aqueducts, destroying, 269 
 
 Armed : v. Boildinq ; Smuggling. 
 
 Army, 
 
 desertion, 60 
 
 mutiny in, 60 
 
 offences in, 62 
 Arraignment, 355 
 
 standing mute at, 356 
 
 insanity at, 357 
 
492 
 
 INDIX. 
 
 Ahray, challenge to the, 374 
 Akeest, 
 
 obstructing lawful, 77 
 
 of debtors, 117 
 
 of clergymen engaged in their duty, 185 
 
 defined, 303 
 
 with warrant (2. v.), 303 
 
 without warrant, 308 
 by constable, 308 
 by private person, 309 
 
 on hue and cry, 311 
 
 rewards for diligence in, 311 
 
 prirQege of witness from, 397 
 Aebbst of Judgment, 429 
 Aeson, 
 
 definition of, 261 
 
 proposed definition, 263, n. 
 
 of churches, &o., 261 
 
 of dwelling-houses, 261 
 
 of shops, &c., 261 
 
 of stations, &c., 261 
 
 of pubhc buildings, 262 
 
 of things in, against, &c., buildings, 262 
 
 of crops, 262 
 
 of stacks, 262 
 
 of mines, 263 
 
 of ships, 263 
 
 of ships of war, 264 
 
 of ships in port of London, 264 
 
 act must be done unlawfully and maliciously, 264 
 
 what is a setting-fire, 265 
 
 the intent to defraud, 265 
 Art, destroying works ofi &c., 272 
 Asportation, must be proved in larceny, 203 
 Assault, 
 
 both a crime and a civil injury, 3, 178 
 
 common assault, 177 
 
 wide scope of the crime, 177 
 
 distinguished from battery, 177 
 
 punishment or compensation, 178 
 
 summary jurisdiction in, 178, 460 
 
 defences, 179 
 
 aggravated assault, 179 
 
INDEX. 493 
 
 Assault — continued. 
 
 actual bodily harm, 179 
 
 ■wounding, 180 
 
 grievous bodily harm, 180 
 
 with intent to commit a felony, 181 
 
 with intent to rob, 213 
 
 to obstruct sale of grain, &c., 122 
 
 in connection with wrecks, 183 
 
 on revenue of&cers, 114 
 
 on peace officers, 78, 184 
 
 on clergymen, 184 
 
 on game-keepers, 141 
 
 on apprentices, 185 
 
 on servants, 185 
 
 on lunatics, 185 : v. Indecent. 
 
 Assembly, unlawful, 100 
 
 Assizes, 289 
 
 when and where held, 289 
 
 winter, 289, n. 
 
 commissions under which the judges sit at, 290 
 
 commissioners at, 291 
 
 judges regulated by Supreme Court of Judicature Acts, 291, n. 
 
 special commission, 292 
 
 Atheists, formerly could not be witnesses, 390 
 
 Attachment, 99 
 
 Attaindbe, 364. 
 
 Attaindbk, Bill op, 282 
 
 Attempt, 
 
 punishable, 16 
 what is an, 16 
 
 sometimes a felony, always at least a common law misde- 
 meanor, 17 
 verdict of, on indictment for completed offence, 17, 425 
 punishment of, 17 
 to injure or alarm the Queen, 53 
 to murder, 166 
 to procure miscarriage, 173 
 to choke, &c., 181 
 to steal, 204 
 
 Atteitoancb of Witnesses : v. Witness. 
 
 Attorney : v. Poweb of Attoenby ; Solicitor. 
 
494 INDEX. 
 
 AuTEEFOis Acquit, 
 
 plea of, 363 
 
 what acquittal must be proved, 363 
 AuTEEFOis Attaint, 364 
 AtiTKEFOis Convict, 36 1 
 
 B. 
 
 Backing a Warrant, 306 
 Bail, 
 
 false personation of, 236 
 
 what it consists in, 316 
 
 in what cases may be allowed by magistrates, 316 
 
 number and sufficiency of, 317 
 
 refusing or delaying, 317 
 
 excessive, 318 
 
 bail after committal for trial, 318 
 
 bail by the Queen's Bench Division, 318 
 
 by justices at quarter sessions, 319 
 
 by judges of assize, 319 
 
 by coroners, 319 
 
 Bailee, 
 
 larceny by, 200 
 
 goods stolen from bailee, ownership, how laid, 324 
 Bank : v. Joint Stock. 
 Bank Bill, 
 
 larceny of, 192 
 
 forgery of, 251 
 
 offences relating to, 258 
 Bank of England, ob Ireland, 
 
 false dividend warrant, 251 
 Bank Notes, 
 
 larceny of, 192 
 
 sometimes to be described as paper, 192 
 
 forgery of, 251 
 
 offences relating to, 258 
 
 Bank op Sea or Eivbr, damagi ng, 268 
 Banker, 
 
 embezzlement by, 225 
 
 trafficking in property intrusted for safe custody, 226 
 
 Bankrupt, 
 
 offences by, 115 
 
INDEX. 495 
 
 Bankrupt — continued. 
 absconding, 116 
 prosecution of, directed by the Court, 117 
 
 Bankexjptct Act, 
 
 false declarations under, 84 
 
 Baptism : v. Eegistee. 
 
 Bae, 
 
 trial at, 288 
 plea in, 362 
 
 Baek, setting fire to, 262 
 Barn, setting fire to, 261 
 Baeeatey, 
 
 common, 90 
 
 by solicitor, &c., 90 
 Bareistbe : v. Cototbel. 
 Battery, 177 
 Battle, trial by, 369 
 Bawdt-hotjsb : v. Beothel. 
 Beast : v. Animal. 
 Bbastiality : v. Unnatueal Ceimb. 
 Beating, killing by, 164 
 Bench Waeeant, 347 
 Best Evidence, 412 
 Betiing-hotjse, 131 
 Bigamy, 127 
 
 when a second marriage is not felonious, 127 
 
 defence and evidence, 128 
 
 punishment, 128 
 Bill of Attaindee, 282 
 Bill of Pains and Penalties, 282 
 Bill of Exchange, larceny of, 192 
 Bill op Indictment, 
 
 before the grand jury, 342 
 
 found true, or thrown out, 343 
 
 if thrown out, may be preferred again, 344 
 
 BlED, 
 
 larceny of, 193 
 
 killing, maiming, &c., 270 
 
 BlETH : V. CONOEAIMBNT ; EeGISTBE. 
 
496 INDEX. 
 
 Blackened Face, with intent, &c., 243 
 
 Blaoklead, larceny of, 190 
 
 Blasphemy, 71 
 
 Blood, corruption of, aboUshed, 445 
 
 Boat : v. Vessel. 
 
 Bodily Fear : v. Pbae. 
 
 Bodily Haem, 
 
 doing actual, 179 
 
 grievous, 180 
 Boiling Water : v. Coekosivb Fluid. 
 Bond, 
 
 larceny of, 192 
 
 forgery of, 251 
 BoEOUGH Sessions, 298 
 
 gi-ant of, 299 
 
 Boundary, crimes committed within five hundred yards of, where 
 tried, 338 
 
 Boxing, death by, 164 
 Brass : v. Metal. 
 Beeaoh oe Peison, 75 
 
 when a felony, when a misdemeanor, 76 
 Beeaoh oe Trust : v. Embezzlement. 
 
 Breaking, 
 
 in burglary, 240 
 
 actual, Mh 
 
 constructive, 241 
 
 breaking out, 242 
 
 breaking, but no entry, guilty of attempt, 242 : v. House- 
 bebaking. 
 Bribery, 84 
 
 to influence the conduct of one in oflSce, 85 
 
 to procure a place or appointment, 85 
 
 at elections, 
 
 parliamentary, 86 
 municipal, 88 
 
 treating, 88 
 
 undue influence, 88 
 
 subsequent disqualification of candidates, 88 
 
 time limited for prosecution, 331 
 Beidgb, 
 
 nuisance to, 133 
 
 destroying, 269 
 
INDEX. 497 
 
 Brokee, 
 
 embezzlement by, 225 
 
 trafficking in property intrusted to, 226 
 Brothel, 
 
 keeping, 134 
 
 lodging thieves therein, &c., 219 
 
 BuiLDfNG, 
 
 being found at night with intent to break into, 243 
 
 being in, by night with intent, &o., 243 
 
 setting fire to, 261 
 
 setting fire to property in, against, &c., 262 
 
 malicious injury to, by gunpowder, &c., 266 
 
 demolishing, 266 
 
 tenant demolishing, 267 
 Bull : v. Cattle. 
 Buoy, interfering with, 268 
 Bu&den of Proof, 407 
 Burglary, 238 
 
 defined at common law, 238 
 
 under the Larceny Act, 238 
 
 the time, 238 
 
 the place, 239 
 
 what is a dwelling-house, 239 
 
 the residence necessary, 239 
 
 the manner, 240 
 
 the breaking {q. v.), 240 
 
 the entry, 242 
 
 breaking out, 242 
 
 breaking, but no entry, an attempt, 242 
 
 the intent, 242 
 
 punishment, 243 
 
 burglary distinguished from housebreaking, 244, 247 
 Burning: v. Arson. 
 Buying counterfeit coin at lower value, 65 
 
 C. 
 
 Cambridge University Courts, 299 
 Canal, 
 
 setting fire to building belonging to, 261 
 
 destroying works, 269 
 Capias ad Eespondendum, 348 
 
 2 K 
 
498 INDEX. 
 
 Capital Punishment, 438 
 execution, 457 
 
 Cards : v. Gaming. 
 
 Carnal Knowledge, 
 
 of girls; under age of twelve, 172 
 
 under age of thirteen, 172 
 by false representations, &c., procuring female under age of 
 twenty-one to have, 172 
 
 Carriage : v. Journey. 
 
 Carrier : v. Bailee. 
 
 Carrying Away, must be proved in larceny, 203 
 
 Case 
 
 before magistrates stated to superior court, 472 
 on point of law, 473 
 
 Cattle, 
 
 stealing, 195 
 
 killing, maiming, &c., 270 
 
 Central Criminal Court, 292 
 jurisdiction, 292 
 when held, 292 
 commissioners or judges, 292 
 
 trial of murder or manslaughter under the Mutiny Acts, 293 
 transferred jurisdiction, 293, 353 
 sessions not interfered with, 293 
 regarded as one county, 341 
 
 Certificate, 
 
 forgery of, 251, 252 
 
 certificate of dismissal by magistrate for assault, 460 
 for larceny, 462 
 
 Certiorari, 
 
 removal of indictment from inferior courts to Queen's Bench 
 
 Division, 287, 351 
 under what circumstances, 287, 351 
 removal to Central Criminal Court, 293 
 when the writ should be applied for, 351 
 how obtained, 352 
 removal of proceedings before magistrates, 473 
 
 Challenge oe Jurors, 373 
 form of, 373 
 for cause, 373 
 to the array, principal, or for favour, 374 
 
INDEX. 499 
 
 Challenge of JvnoRS— continued. 
 
 how made and tried, 374 
 
 to the polls, principal or for favour, 375 
 
 how made and tried, 375 
 
 jurors ordered by the Crown to stand by, 376 
 
 peremptory challenge, 376 
 
 number allowed, 377 
 
 reasons assigned for allowing, 377, n. 
 Challenge to Fight, 103 
 Chance Medley, 151 
 Chancellob, slaying the, 50 
 Chapel : v. Chukch. 
 
 Characteb of Peisonbr, 
 
 evidence of good, 411 
 of bad, 409,411 
 
 effect of evidence as to, 411 
 Chaeaoter of Witness, 393 
 
 what questions may be asked, 393 
 
 proof of former conviction, 394 
 Charge to the Grand Jury, 342 
 Chattels : v. Goods. 
 Chaud Medley, 151 
 
 Cheating, 
 
 at common law, 236 
 
 statutes punishing particular deceits, 237 
 
 punishment, 237 
 
 Cheque, 
 
 larceny of, 192 
 
 obliterating or altering crossing on, 251 
 
 Child, stealing, abandoning, exposing, 176 
 
 Chloroform, administering, &c., 181 
 
 Choke, attempting to, with intent, &c., 181 
 
 Choses in Action, larceny of, 191 
 
 Christianity, a part of the law of England, 71 
 
 Chdrch, Chapel, &c., 
 
 at common law might be the subject of burglary, 240 
 
 sacrilege, 244 
 
 setting fire to, 261 : v. Public Worship. 
 
 Circuits, 289 
 
 2 K 2 
 
500 
 
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 ClKCUMSTANTIAL EVIDENCE, 416 
 
 distinguished from direct, 416 
 
 conclusive or presumptive, 417 
 Civil or Cbiminal, test whether proceeding is, 4 
 Civil Injueies 
 
 contrasted with crimes, 2 
 
 course to he taken when the act is also a crime //y 
 
 false distinctions pointed out, 3 
 
 narrow line separating from crime, 3 
 Claim op Eight : v. Eight. 
 Cleegtman, 
 
 assault on, 184 
 
 arrest of, 185 
 Clbek of the Market, Court of, 300, n. 
 Clerks, 
 
 larceny by, 207 
 
 embezzlement, 221 
 
 proof of employment as, 222 
 Clipping Coin, 65 
 
 Coach, offences committed on, where tried, 339 
 Coach-house, setting fire to, 261. 
 Coal, 
 
 larceny of, 190 
 
 setting fire to, 263 
 Codicil : v. Will. 
 Com, 
 
 offences relating to the, 63 
 
 certain offences formerly treason, 47, 63 
 
 some offences might be dealt with as false pretences, 63 
 
 counterfeiting, 64 
 
 colouring, washing, &c., 64 
 
 impairing, 65 
 
 defacing, 65 
 
 buying or selling counterfeit at lower value, 65 
 
 importing and exporting, 66 
 
 uttering, 66 
 
 after previous conviction, 437 
 
 having in possession, &c., 67 
 
 making, &c., coining tools, 67 
 
 conveying out of Mint instruments, bullion, &c., 68 
 
 testing suspected coin, 68 
 
 search for, and seizure of counterfeit coin and tools, 68 
 
 expenses of witnesses, 898 
 
INDEX. 
 
 501 
 
 CoLouBiNG, &0., Coin, 64 
 Combinations : v. Conspikacy ; Trade. 
 Commencement op Indictment, 323 
 Commissions, 
 
 at assizes, 290 
 
 special, 292 
 
 at Central Criminal Court, 292 
 
 commissionebs at assizbs, 291 
 Committal 
 
 for trial, 315 
 
 forms of committal, 31.5 
 Common Assault : v. Assault. 
 Common Bareatey : v. Baeeatey. 
 Common Law, crimes at, 5 
 Common Infoemee, 94 
 Common Nuisance : v. Nuisance. 
 
 Companies, 
 
 public, embezzlement by directors, &c., 227 
 
 receiving property and not entering in books, 228 
 
 falsifying books, 228 
 
 making false statements, &c., 228 
 
 falsifying books of company wound up, 229 
 
 Companies Act, 1862 .. 229 
 
 Compassing 
 
 death of sovereign, queen, or eldest son and heir, 48 
 death, destruction, harm, &c., of sovereign, 51 : v. Felonious 
 Compassing. 
 
 Compensation by Peisoneb, 446 
 
 Competency op Witnesses : v. Witness. 
 
 Compound Larceny, 
 
 distinguished from simple, 187 
 cases of, 207 
 
 Compounding Felony, 92 
 theft bote, 92 
 
 reward for return of stolen property, 93 
 advertising reward, &c., 93 
 
 Compounding Misdembanoe, 93 
 
 Compounding Information on Penal Statute, 93 
 
 Compulsion, as an exemption from criminal responsibility, 29 
 
502 
 
 INDEX. 
 
 OONOBALMENT 
 
 of birth, 174 
 
 verdict of, on indictment for murder, 174 
 Concealment by Bankrupt : v. Bankrupt. 
 Concealment op Documents, Wills, &c., 191, 192 
 Concealment of Treason : v. Misprision. 
 Concealment op Teeasueb Trove, 68 
 Conclusion of Indictment, 327 
 Confession 
 
 on arraignment, 358 
 
 before magistrate is merely evidence, 358 
 
 when admitted in evidence, 414 
 against whom, 415 
 
 before magistrate, 415 
 Confinement : v. Solitary Confinement. 
 
 CONSPIEAOT, 123 
 
 the combination the gist of, 123 
 
 wide nature of crime, 124 
 
 objects enumerated, 124 
 
 not every combination to effect a tort is criminal, 125 
 
 punishment, 126 
 
 merged in felony, if carried out, 126 
 
 Conspiracy and Protection of Property Act, 1875 . . 120 
 
 Constable: v. Officer. 
 
 Constructive Taking, 198 
 
 Contempts or High Misdemeanors against the Sovereign and 
 Government, 68 
 
 Contempt of Court, 96 
 
 direct, 96 
 
 consequential, 97 
 
 by whom committed, 97 
 
 proceedings, 98 
 Contract of Service, 
 
 wilfully breaking, so as to deprive of gas or water, 121 
 so as to endanger life, 121 
 Contributory Negligence, not recognised in manslaughter, 163 
 Conveyances, fraudulent, 237 
 Conviction, 
 
 forgery of, 252 
 
 how proved, 420 
 
 verdict entailing, 427 
 
INDEX. 503 
 
 Co-PARTNEESHip, larceny by members of, 202 
 Copies, when allowed in evidence, 412, 419 
 CoppEB : V. Metal. 
 Corn, 
 
 servants taking master's, &c., 205 
 
 setting iire to crops or stacks, 262 
 
 Coroner, 
 
 comt of, 299 
 arrest by, 308 
 bail by, 319 
 inquisition of, 334 
 proceedings before, 335 
 committal for trial by, 336 
 
 Corporate Bodies : v. Companies. 
 
 Corporations 
 
 may be guilty of crime, 31 
 
 larceny of property of, by members, 202, n. 
 
 Correction, killing by, 164 
 
 CoBEOsrvB FLtriD, throwing at any person, &c., 182 
 
 CoRKtTPT Practices Prevention Act, 1854 . . 86 
 
 Corruption : v. Blood ; Bribert. 
 
 Costs, 
 
 in certain cases of Kbel, paid by prisoner, 111, 399 
 on acquittal of offence under Vexatious Indictments Act, prose- 
 cutor may be ordered to pay, 345, 399 
 on certiorari, 353 
 when paid by prisoner, 398, 446 
 on summary proceedings, 471 : v. Expenses. 
 
 Cotton, 
 
 larceny of, in process of manufacture, 208 
 injury to manufactures or machines, 267 
 
 Counsel, 
 
 order of speeches and examination, 381 
 
 when incompetent to give evidence against client, 390 
 
 functions of counsel for prosecution, 401 
 
 for defence, 401 
 requested by judge to defend prisoner, 431 
 
 Counterfeiting Coin, 64 : v. Coin. 
 
 Counterfeiting Trade-marks, 118 
 
504 INDEX. 
 
 Counts, 
 
 for distinct acts of stealing, 206 
 
 when more than one count may be inserted, 327 
 
 more than one offence in same count, 328 
 
 charging different offences in different counts, 328 
 in treason, 328 
 in felony, 328 
 
 felony and misdemeanor, 329 
 in misdemeanor, 330 
 
 count charging previous conviction, 330 
 County Quarter Sessions : v. Quarter Sessions. 
 County Property, how described in indictment, 324 
 Court, Contempt of : v. Contempt. 
 Courts of a Criminal Jurisdiction, 282 
 Court Leet, 300, n. 
 Court Martial, 60, 62 
 Court Roll, forgery of, 252 
 Cow, 
 
 stealing, 195 
 
 killing, maiming, &c., 270 
 Credibility of Witnesses, 891 : v. Witness. 
 Credit, 
 
 bankrupt fraudulently obtaining, 116 
 any person, 117 
 Creditors, 
 
 defrauding of, 115, 117 
 
 false claims by, 117 
 Crime, 
 
 description thereof, 1 
 
 contrasted with civil injury, 2 
 
 proof that an act does not become a crime on account of its in- 
 trinsic qualities, 2 
 
 courses open, when an act is both a crime and a civil injury, 3 
 
 false distinctions from civil injury pointed out, 3 
 
 narrow line between the two, 3 
 
 morality and crime, 5 
 
 crimes at common law, 5 
 
 by statute, 5 ' 
 
 crime contrasted with offence, 7 
 
 what are indictable crimes, 7 
 
 completed crime punished more severely than attempt, 17, 145 : 
 V. Prevention of Crime. 
 
INDEX. 505 
 
 Criminal or Civil, test whether a proceeding is, 4 
 Criminal Intention : v. Intention. 
 Criminal Ebsponsibility : v. Responsibility. 
 Crops, setting fire to, 262 
 Cross-Examination, 405 : v. Examination. 
 Crossed Cheque : v. Cheque. 
 Crown Cases Eeserved, 
 
 court for, 450 
 
 proceedings in, 451 
 Cultivated Vegetable Produce : v. Plants, 
 Customs, offences relating to, 113 
 Customs, false declarations as to, 84 
 Customs Consolidation Act, 1853 . . 113 
 Customs, general or particular, how proved, 419 
 Cutting : v. Wounding, 
 
 D. 
 
 Dam, 
 
 damaging, 268 
 
 of pond, destroying, 270 
 Damaging : v. Malicious Injury. 
 Dead Animals, subjectsof larceny, 193 
 
 Deaf and Dumb Persons, by presumption of law, are idiots, 21 
 Death, Eegisteb op : v. Ebgisteb. 
 Death, Punishment of, 438 : v. Execution. 
 
 Debentures, 
 
 larceny of, 192 
 forgery of, 251 
 
 Debtors, 
 
 offences by, 115 
 
 arrest of, 117 
 Debtors Act, 1869 . . 115 
 Deceased, 
 
 ownership of goods of, how laid, 324 
 
 depositions of deceased witnesses, 414 
 Declarations, False : v. False Declarations. 
 Declaration of Title Act, 1862 .. 253, 259 
 Declaration : v. Affirmation. 
 
506 
 
 INDEX, 
 
 Deed, 
 
 stealing, destroying, obliterating, &c., 191 
 
 forging, 251 
 
 how proved, 421 
 Deek, 
 
 hunting, MUing, &c., 142, 194 
 
 having in possession skin, &c., of, 194 
 
 Defacing Coin, 65 
 
 Defects 
 
 in indictment, 325 
 amendment of, 326 
 formerly demurrer in abatement to formal, 368 
 
 Defence 
 
 in forma pauperis, 431 
 
 by counsel at request of judge, 431 
 
 Defendants, joinder of two or more, 331 
 
 Defilement : v. Carnal Knowledge. 
 
 Dbliveet : V. Labcbnt. 
 
 Demanding Monet, by forged instrument, 259 : v. Thbeats. 
 
 De Medietate LiNGua;, Juet, 
 at University Courts, 800 
 formerly on trial of alien, 379 
 
 Dementia, 
 
 naturalis, or a nativiiate, 21 
 accidentalis, or adventitia, 21 
 affectata, 25 
 
 Demtibkeb, 
 
 not strictly a plea, 360 
 
 definition of, 367 
 
 form of, 367 
 
 judgment on, 367 
 
 reason why it seldom occurs in practice, 368 
 
 demurrer in abatement, 368 
 
 Depose Sovereign, Compassing to : v. Felonious Compassing. 
 
 Depositions 
 
 tateeu before magistrates, 313 
 
 accused may have copies, 319 
 
 deposition of deceased or ill persons read at trial, 414 
 
 of person whose death is apprehended, 421 
 
 Dbeivativb Evidence, 412 : v. Hearsay. 
 
INDEX. 
 
 507 
 
 Dbsbktion, 60, 62 
 
 inciting thereto, 60 
 
 Desteoting : v. Machinbky ; Mines ; Ships'; Tbees ; Wills, &o. : v. 
 Malicious Injuet. 
 
 Detainee, forcible, 112 
 
 Dilatory Pleas, 360 
 
 DiEECTOES : V. Companies. 
 
 Disable, -wounding, &c., with intent to, 180 
 
 DiSOHAEGE BY MAGISTEATB, 315 
 
 DiSCHAEGE OF JuEY ON NON-AGEBEMENT, 424 
 
 DisFiGUEE, wounding, &c., with intent to, 180 
 
 DiSOEDBELY HOUSB, 133 
 
 Distringas, 348 
 
 DisTUEBiNG Public Worship, 72 
 
 Dividend Warrant, false, 251 
 
 Dock, 
 
 stealing from, 209 
 
 setting fire to dock buildings, 261 
 
 destroying works, 269 
 
 Document, stealing, obliteratiag, &c., 191, 192 
 
 Dog, 
 
 stealing, 195 
 
 kiUing, maiming, &c., 270 
 
 DoLi Incapax, infant when presumed to be, 26 
 DoMiT.a! Natue*, Ajstimals, larceny of, 193 
 Dredging : v. Oysters. 
 Drilling, 
 
 illegal, 61 
 
 time limited for prosecution, 331 
 Driving, wanton and furious, 135 
 Deown : V. Attempt to Murder. 
 Drugs, 
 
 adulteration of, 135 
 
 administering stupefying, &c., drugs, with intent, &c., 181 
 
 Drunkenness, 
 
 no excuse for crime, 25 
 when it is to be considered, 25 
 involuntary, 26 
 
508 INDEX. 
 
 DnVKKENNSsa— continued. 
 
 a disease, 26 
 
 punishable on summary conviction, 138, n. 
 DoEii, killing in a, 164 
 Dumb : v. Deaf. 
 Duplicity, count bad for, 328 
 
 DUKBSS PEE MiNAS, 29 
 
 Dwelling-house, 
 
 what is a, under the Larceny Act, 239 
 
 part let off, 240 
 
 entering at night with intent to commit felony, 243 
 
 being found in, by night, armed, &c., 243 
 
 being found in, by night, with intent to commit felony, 243 
 
 housebreaking (q. v.), 244 
 
 stealing in dwelling-house to amount of £5 . . 245 
 with menaces, 245 
 
 the goods must be under the protection of the house, 245 
 
 setting fire to dwelling-house, 261 
 
 damage, &c., by explosion, 266 
 
 demolishing, 266 
 
 tenant demolishing, 267 
 Dying Declaration, when received in evidence, 421 
 
 E. 
 
 East India Bonds, forging, 251 
 
 Effigy, hanging in. 111 
 
 Election : v. Municipal, Paeliambntaey. 
 
 Election, forging documents relating to, 252 
 
 Election, if too many acts are alleged in indictment for larceny, 
 206 
 
 Elements of a Crime, 12 
 
 Elisors, 374 
 
 Embezzlement, 
 
 definition of, 221 
 
 distinguished from larceny by clerks or servants, 221, 246 
 
 the employment as clerk or servant, 222 
 
 the receipt for, &c., the master, 223 
 
 the unlawful appropriation, 223 
 
 three distinct acts within six months may be charged, 224, 
 328 
 
INDEX. 509 
 
 Embezzlement — continued. 
 
 verdict of larceny on indictment for embezzlement, and vice 
 
 versa, 206, 224 
 punishment, 225 
 summary jurisdiction, 225, 462 
 embezzlement by public ofllcers, 222 
 
 by bankers, mercbants, brokers, solicitors, agents, factors (j. v.) 
 
 225 
 by trustees, 227 
 by directors, officers, and members of public companies (g. v.) 
 
 and corporate bodies, 227 : v. Bankrupt ; Post Office. 
 
 Embbaoert, 89 
 
 Endangering safety of railway passengers, 183 
 
 Enemies, adhering to the Sovereign's, 49 
 
 England, Bank op : v. Bank of England. 
 
 Enlistment : v. Foreign Enlistment Act. 
 
 Entering, in burglary, 242 : v. Dwelling-house. 
 
 Entry, forcible, 112 
 
 Error, 
 
 writ of, 448 
 
 jurisdiction in error under Supreme Court of Judicature Acts, 
 450 
 
 Escape, 74 
 
 distinguished from breach of prison and rescue, 74 
 allowed by officers, 74 
 
 by private individuals, 75 
 aiding to, 75 : v. Penal Servitude. 
 
 Essentials op a Crime, 12 
 
 Estreat : v. Eecognizances. 
 
 Evidence, 
 
 definition of, 407 
 
 burden of proof on prosecution, 407 
 
 what must be proved, 408 
 
 what may not be given in evidence, 409 
 
 evidence as to other offences, 409 
 
 when allowed, 410 
 
 evidence of good character, 411 
 
 of bad character, 411 
 
 effect of evidence of character, 411 
 
 best evidence must be given, 412 
 
 as to written documents, 412 
 
510 
 
 INDEX. 
 
 Evidence — continued. 
 
 hearsay no evideiice, 412 
 why rejected, 413 
 when it may be given, 413 
 deposition of those ill or deceased given in evidence, 414 
 
 confessions, 414 
 
 confession before magistrates, 415 
 
 circumstantial or presumptive evidence distinguished from 
 direct, 416 
 
 circumstantial evidence, conclusive or presumptive, 417 
 
 presumptions classified, 418 
 
 written evidence, 419 
 
 records, 419 
 
 Acts of Parliament, 419 
 
 other records, 419 
 
 previous conviction, how proved, 420 
 
 matters quasi of record, 420 
 
 perpetuating the testimony of witness whose death is appre- 
 hended, 421 
 
 written documents of private nature, as deeds, 421 
 
 handwriting, how proved, 422 
 
 points in which rules of evidence in civil and criminal cases 
 differ, 423 
 Examination 
 
 of witnesses, by grand jury, 343 
 
 order of examination by counsel, 381, 400 
 
 what witnesses must be called, 400 
 
 ordering witnesses out of court, 400 
 
 functions of counsel for prosecution, 401 
 for defence, 401 
 
 rules founded on principle that witness is favourable to party 
 calUng him, 402 
 
 exanunation-in-chief, 402 
 
 questions must be relevant, 402 
 
 leading questions not allowed, 402 
 exceptions, 403 
 
 witness must testify from own knowledge, 404 
 
 evidence of experts, 404 
 
 contents of written documents, how proved, 404 
 
 witness proving hostile, 404 
 
 cross-examination, 405 
 
 re-examination, 406 
 
 questions put through judge, 406 
 
 objections to questions, how made, 406 : v. Evidence. 
 
INDEX. 511 
 
 Exchequer Bills, Bonds, and Dbbentubbs, 
 
 forging, 251 
 
 offences relating to, 257 
 Excise, false declarations as to, 84 
 Excusable Homicide, 150 
 
 distinguislied from justifiable homicide, 150 
 
 homicide in self-defence, 151 
 
 by misadventure, 152 
 
 in fighting, 164 
 
 by correction, 164 
 
 whilst doing another act, 165 
 Execution op Ceiminal, 457 : v. Justifiable Homicide. 
 Execution oe Deed, how proved, 422 
 Exemptions from crinainal responsibility, 19 
 Ex-Officio Infobmation : v. Infoemation. 
 Expedition, Illegal : v. Foreign Enlistment Act. 
 Expenses op Witnesses, 
 
 for prosecution, in felony, 397 
 in misdemeanor, 398 
 
 on summary conviction, 398 
 
 of witnesses for defence, 398 
 
 where prisoner pays expenses, 398 : v. Costs. 
 Expeets, 
 
 evidence of, 404 
 
 as to handwriting, 255 
 Explosive Substances : v. Gunpowdee. 
 Exporting Countbefeit Coin, 66 
 Exposing Children, 176 
 Express Malice, 14 
 
 in murder, 159 
 Extortion, 95 : ■;;. Threats. 
 Extraneous Circumstances often determine the degree of guilt, 
 
 145 
 
 Fabrication, what will constitute in forgery, 254 
 
 PACTI PRiESUMPTIO, 418 
 
 Factor, 
 
 embezzlement by, 225 
 charging property intrusted, 226 
 
512 INDEX. 
 
 False Declarations, 84 
 
 under Land Transfer Act, 259 
 under Declaration of Title Act, 259 
 
 False Imprisonment, 186 
 
 False Oaths and Affirmations, 78 : v. Perjury. 
 
 False Personation : v. Personation. 
 
 False Pretences, 
 
 obtaining goods or money by means of, 230 
 
 some coining offences might be dealt with as, 63 
 
 hard to distinguish from larceny and from non-criminal lie, 
 
 200, 230, 246 
 on indictment for larceny not acquittal because it turns out to 
 
 be false pretences, 230, 233 
 the pretence must be of an existing fact, 231 
 what misrepresentation amounts to, 231 
 exaggeration, 231 
 breach of warranty, &c., 231 
 false pretence need not be expressed in words, 232 
 when defendant should be indicted for forgery, 232 
 the intent to defraud, 233 
 need not be to defraud a particular person, 233 
 evidence of subsequent or prior obtaining, 233 
 punishment, 233 
 
 fraudulent winning at play punished as, 233 
 inducing by fraud the execution of valuable securities, 234 
 
 False Signals : v. Signals. 
 
 False Statements as to public companies, circulating, &c., 228 
 
 False Weights and Measures : v. Weights and Measures. 
 
 Falsification of Accounts, 225, 253 
 
 Falsification of Books 
 of public company, 228 
 of company wound up, 229 
 
 Farm, setting fire to, 261 
 
 Fear of Excessive and Unlawful Harm, 
 
 as an exemption from crimilial responsibility, 29 
 
 bodily fear, in robbery, 210 
 
 " FelonioiI; oepit et aspoetavit " to be used in indictment for 
 larceny, 325 
 
 Felonious Compassing to depose sovereign, levy war, procure 
 foreign invasion, 54 
 
 " Feloniously " applied by statute to an act makes it a felony, 9 
 
INDEX. 513 
 
 Felony, 
 
 distinguished from misdemeanor, 8 
 
 origin of the term, 9 
 
 further points in which it differs from misdemeanor, 10 
 
 compounding, 92 
 
 misprision of, 94 
 
 general punishment for, by statute, 435 
 otherwise, 435 
 
 after previous conviction, 436 
 Feme Covert : v. Wife. 
 Pee« Natue^!, Amimals, larceny of, 193 
 Fictitious Plaintiff, suing in name of, 90 
 Fight, Challenge to, 103 
 Finding, larceny on, 203 
 Fine, 
 
 punishment by, 440 
 
 how enforced, when imposed by magistrate, 471 
 Fire : v. Arson. 
 Fish, 
 
 taking or destroying, 194 
 
 destroying in pond, 270 
 Fishpond, malicious injury to, 270 
 Fixtures, larceny of, 189 
 Floodgate : v. Dam. 
 Food, adulteration of, 135 
 Force, in robbery, 211 
 Forcible Abduction, 175 
 Forcible Entry and Detainee, 112 
 Forcing Seamen on Shore, 184 
 Foebign Enlistment Act, 58 
 
 illegal enlistment, 58 
 
 illegal shipbuilding, 59 
 
 illegal expeditions, 59 
 
 trial, where, 59 
 
 Foeeionbes, 
 
 not exempt from criminal responsibility, 28, 31 
 
 formerly might demand trial by jury de medietate linguse, 379 
 
 FOEFEITUEE, 
 
 abolition of, on conviction, 10, 445 
 
 of oEBce, on conviction for treason or felony, 445 
 
 2 L 
 
514 INDEX. 
 
 FOEGBET, 
 
 definition of, 249 
 
 connection -with false pretences, 232, 249 
 
 instruments dealt with in the Forgery Act enumerated 
 (v. various titles), 250 
 
 other cases provided for by statutes, 252 
 
 forgery at common law only a misdemeanor, 253 
 
 nature of the instrument forged, 253 
 
 the fabrication necessary, 254 
 
 alteration, 254 
 
 proof of handwriting, 255 
 
 the intent to defraud, 255 
 
 no person need be defrauded, 256 
 
 the uttering, 256 
 
 when a tender will sufBce, 256 
 
 kindred offences relating to Exchequer bills, &c., 257 
 to bank notes, 258 
 
 demanding, &c., by means of forged instrument, 259 
 FoEMA Paupbeis : v. PaupeeiS. 
 PoEMAL Defects : v. Defects. 
 FoEMEE Conviction : v. Peeviotjs Conviction. 
 Found, larceny of things, 203 
 Fox's Act, 110 
 Feamb : V. Machineet. 
 Feank-plbdqe, view of, 300, n. 
 Feadutjlbnt BANKEUPToy : v. Bankeupt. 
 Feattdulbnt Conveyances, 237 
 Feuit, 
 
 larceny of, 190 
 
 destroying, 271 
 Funds, false entry, &c., in, 251 
 FuEious Deiving, 135 
 FuEZE, setting fire to, 262 
 
 Q. 
 
 Game, 
 
 offences relating to, 140 
 
 ground of special legislation, 140 
 
 taking or destroying game or rabbits by night, 140, 194 
 
 entering, &c., for purpose of taking, &c., 140 
 
 punishment, 141 
 
INDEX. 515 
 
 Game — continued. 
 
 apprehension of oflfenders, 141 
 
 three or more armed by night for purpose, &c., 141 
 
 time limited for prosecution, 141, 331 
 
 search for game, guns, &c., 142 
 
 taking hares, &c., by night, 142 
 
 summary convictions, 465 : v. Deee ; Spring Gun. 
 Gaming, 129 
 
 •winning by fraud, 129 
 
 in public places, 129 
 Gaming-house, 130 
 
 steps taken by legislature to suppress, 130 
 
 betting-house, 131 
 
 evidence as to character of the house, 131 
 
 Gaol Deliveey, 
 court of, 289 
 commission of, 291 
 
 Gas, by wilful breaking contract of service, depriving of, 121 
 
 Gate, destroying, 269 
 
 General Issue, 
 
 of not guilty,. 365 
 
 advantage of pleading this, 365 
 
 what the prosecutor must prove, and what may be urged by 
 
 the prisoner, 365 
 form of, on record, 366 
 
 General Quarter Sessions : ■;;. Quarter Sessions. 
 
 Girl : v. Abduction; Carnal Knowledge. 
 
 Glass : v. Fixtures. 
 
 Good Behaviour, 
 
 security for, 276, 278 
 
 forfeiture of recognizances, 276, 279 : v. Security. 
 
 Good Character : v. Character. 
 
 Goods, 
 
 stolen, how disposed of by court, 433 
 of felon, how administered, 446 
 
 Government, 
 
 offences against the sovereign and, 45 
 
 various contempts and high misdemeanors against, 68 
 
 Grain, assaults with intent to obstruct sale of, &c., 122 
 
 2 L 2 
 
516 INDEX. 
 
 Grand Jubt, 
 
 cannot ignore bill on ground of insanity, 24 
 
 disclosing evidence to prisoner, 89 
 
 prosecution with or without previous finding by, 321 
 
 how chosen, 342 
 
 sworn and charged, 342 
 
 examination of witnesses by, 343 ■ 
 
 finding by, 343 
 
 qualification at sessions, 370 
 Grand distinguished from Petty Larceny, 196 
 Grabs, setting fire to, 262 
 Great Seal, forging, 250 
 Grievous Bodily Habm, 180 
 Guilty, Plea of : v. Confession. 
 Guilty Knowledge, 
 
 in receiving stolen goods, 217 
 
 in uttering forged instrument, 257 
 
 evidence of other offences allowed in proof of, 410 
 Gunpowder, 
 
 to harm, &c., any person by explosion of, 182 
 
 to apply to any person with intent to burn, &o., 182 
 
 placing in, &c., vessels with intent, &c., 182 
 
 damaging houses by, 266 
 vessels by, 268 
 
 H. 
 
 Habeas Corpus, removal of defendant to plead, 346 
 Habeas Corpus ad Testificandum, 397 
 Habeas Corpus Act, 
 
 copy of warrant of commitment to accused, 315 
 
 early trial, 319 
 Habitual Criminals, 
 
 acts for which punishable, 281 
 
 police supervision, 281 
 Hair, injury to machine, or manufactures, 267 
 Handweiting, 
 
 proof of, in forgery, 255 
 
 how proved, 422 
 Hanging in Effigy, 111 
 Harbour : v. Dock. 
 
INDEX. 517 
 
 Harbouring Thieves, 219, 281 
 Hard Labour, 
 
 punishment of, 440 
 
 two classes, 441 
 
 Habe : V. Game. 
 
 Harm, fear of excessive and unlawful, an exemption from criminal 
 responsibility, 29 : v. Bodily Harm. 
 
 Hay, setting fire to, 262 
 
 Health, offences against public, 127 
 
 Hearing of the Case, 380 : v. Trial. 
 
 Hearsay, 
 
 no evidence, 412 
 
 reason for rule, 413 
 
 wben allowed, 413 
 Heath, setting fire to, 262 
 Heiress, abduction of, 174 
 Hemp, larceny of, in process of manufacture, 208 
 Heresy, 78 
 
 High Court oe Justice: v. Supreme Court of Judicature Acts. 
 High Court of Parliament, 282 
 
 High Seas, 
 
 offences against the law of nations committed on, 41 
 
 robbery on, or piracy, 42 
 
 offences committed on, where tried, 341 
 High Treason, 45, n. : v. Treason. 
 Highways, nuisances to, 133 
 Homicide, 147 
 
 malice presumed, 147 
 
 justifiable (q. v.), 147 
 
 excusable (q . v.), 150 
 
 felonious, 153 
 
 suicide, 153 
 
 murder, 155 
 
 manslaughter, 160 
 
 whether murder, manslaughter, or non-felonious, distinguished 
 in several cases, 164 
 
 classification according to the various states of mind, 167 
 
 HoPBiNDS, destroying, 272 
 
 Horse, 
 
 stealing, 195 
 
 killing, maiming, &o, 270 
 
518 INDEX. 
 
 Hostility of Witness, 404 
 
 House, setting fire to, 261 : v. Dwelling-house. 
 
 HOUSEBEEAKING, 
 
 distinguislied from burglary, 244, 247 
 
 definition, 244 
 
 punislunent, 244 
 
 on indictment for burglary', verdicifof, 244 
 
 distinguished from larceny in dwelling-house, 245, 247 
 Housebreaking Instrument, being found at night with, 243 
 Hub and Get, arrest on, 311 
 Husband 
 
 cannot steal property of wife, 202 
 
 cannot be witness against wife, 388 
 except in two cases, 388 
 
 Identification of Offender, 280 
 
 Idiot, exempt from criminal responsibility, 21 
 
 Idle and Disorderly Persons, 136 
 
 Ignorance, 
 
 sometimes amounts to malice, 14 
 
 as an excuse for crime, 27 
 
 of law never excuses, 28 
 
 of fact, when it excuses, 28 
 Ignoring the Bill, 343 
 Illegal : v. Unlawful. 
 Illegal Training and Drilling, 61 
 Illness 
 
 of juror, 378 
 
 of witness, 414 
 
 of prisoner, 432 
 Imagining : v. Compassing. 
 
 Immorality, not punished, as such, by the criminal law, 4, 70 
 Impairing Coin, 65 
 Impeachment, 283 
 
 who are liable to, 283 
 
 pardon not pleadable to, 283 
 
 proceedings and trial, 283 
 Impeding Escape from Wreck, 183 
 
INDEX. 519 
 
 Implied Malice, 14 
 
 in murder, 160 
 Impoeting Counterfeit Coin, 66 
 Impostors, religious, 72 
 Imprisonment, 
 
 punislunent of, 439 
 
 usual limits of, 439 
 
 pending trial, 815 : v. False Imprisonment. 
 Inciting 
 
 to commission of crime, 36 
 
 to desertion or mutiny, 60 
 Incompetency : v. Witness. 
 Incorrigible Eogub, 137 
 Indecent Assault, 
 
 on females, 172 
 
 on males, 173 
 Indecent Conduct, &c., 129 : v. Obscene. 
 India Bonds, forgery of, 251 
 India Stock, personating owner of, 235, n. 
 Indictable Chimes, 7 
 Indictment, 
 
 definition of, 322 
 
 when it lies, 322 
 
 form of, 322 
 
 example of, 323 
 
 the commencement, 323 
 
 the statement, 323 
 
 defendant's name, 323 
 
 ownership of property, 323 
 
 statement of time, 324 
 of place, 325 
 of facts, intent, &c., 325 
 
 technical words, when to be used, 325 
 
 defects ia, 325 
 
 amendment of defects, 326 
 
 the conclusion, 327 
 
 insertion of more than one count, 327 
 
 charging more than one offence in the same count, 328 
 
 different offences in different counts, 328 
 in treason, 328 
 in felony, 328 
 
 felony and misdemeanor 329 
 in misdemeanor, 330 
 
520 INDEX. 
 
 Indictment — coiMnued. 
 
 count for previous conviction, 330 
 
 joinder of defendants, 331 
 
 cases in which time is limited for preferring, 331 
 
 how drawn up and indorsed, 332 
 
 before the grand jury, 342 
 
 finding of grand jury, 343 
 
 consequences of being thrown out, 344 
 
 Vexatious Indictments Act, 344 
 
 Indictment bbfoee House of Pebes, 284 
 
 Individuals, offences against, 144 
 
 Indorsement, 
 
 fraudulently inducing, 234 
 forging, 251 
 
 Industrial School, 444 
 
 Infancy, 
 
 when exempts from criminal responsibility, 26 
 
 three ages to be considered, 26 
 
 infancy of witness as a ground of incompetency, 389 
 Inpokmation, 
 
 definition of criminal, 332 
 
 other uses of the term, 332, n. 
 
 information ex officio, 332 
 
 example of, 333 
 
 iaformation by Master of the Crown Ofiice, 333 
 
 proceedings, 334 
 
 how tried, 334 
 
 process on, 349 
 Information in Summary Proceedings, 467 
 Information on Penal Statute, compounding, 93 
 Injure, attempt to, the Queen, 53 
 Injury to Property, 261 : v. Malicious Injury. 
 Inland Revenue Stamps, forging, 252 
 Inn, disorderly, 134 
 Innuendo, in libel, 109 
 Inquisition of Office, 322 : v. Coroner. 
 
 Insanity, 
 
 an exemption from criminal responsibility, 20 
 medical and legal views difler, 20 
 varieties of, 21 
 
INDEX. 521 
 
 Insanity — continued. 
 
 partial or total, 21 
 
 permanent or temporary, 21 
 
 three stages in the history of, 21 
 
 the existing law as declared in M'Naughten's Case, 22 
 
 medical eyidehce, 23 
 
 trial in cases of, 24 
 
 is a bar at any stage to further proceedings, 25 
 
 appearing at arraignment, 357 
 
 reprieve, if after judgment, 453 
 
 insanity of witness, a ground of incompetency, 389 
 Insurrection against the Sovereign, 49 
 Intent 
 
 in larceny, 204 
 
 in false pretences, 233 
 
 in forgery, 255 
 
 in malicious injuries, 265 
 Intention 
 
 an essential of crime, 12 
 
 what it is, 12 
 
 contrasted with will, 12 
 
 determines whether an act is criminal, 13, 15 
 though not the sole gauge of liability, 16 
 
 naked intention not punishable, except in treason, 15 
 
 criminal intention, or malice : v. Malice. 
 Interrogation of Prisoner, 387 
 Intimidating Parties or Witnesses, 89 
 Invasion, procuring foreign, 54 
 Invito Domino, in larceny, taking, 197 
 
 iNVOLTTNTARy, 
 
 meaning of the term, 12 
 
 acts not punishable, 19 
 Irresistible Impulse, 23 
 Iron : v. Metal. 
 Issue : v. General Issue. 
 
 Jervis's Acts, 466 
 Joinder of Counts : v. Counts. 
 Joinder oe Dependants, 331 
 Joint Owner, larceny, &o., by, 20a 
 
522 
 
 INDEX. 
 
 Joint Stock Banking Company, goods of, ownership, how laid, 
 324 
 
 Joint Tenant, larceny by, 202 
 
 Journey, offences committed on, where tried, 339 
 
 Judges, 
 
 slaying the, 50 
 
 at assizes, 290 
 
 at the Central Criminal Court, 292 
 
 bail by, 319 
 Judgment, 429 
 
 arrest of, 429 
 
 postponed, 429 
 
 where defendant is not before the court, 429 
 
 how given, 430 
 
 reversal of: v. EbvbrsaIj. 
 Judgment op Magistrate on summary conviction, 470 
 
 JUKIS PEiBSUMPTIO, 418 
 
 Juris et de Jure Pr«sumptio, 418 
 Jurisdiction, plea to the, 361 
 Jurors : v. Jury. 
 Jury, 
 
 contempt of court by, 97 
 
 trial by, 369 : o. Embracery ; Grand Jury ; Petty Jury. 
 Jury op Matrons, 453 
 Justice, Public : v. Public Justice. 
 Justice op Peace : v. Magistrate. 
 Justipiable Homicide, 147 
 
 in execution of criminal, 147 
 
 by oflScer in execution of duty, 148, 166 
 
 in prevention of crime, 149 
 
 in cases of rape, &c., 149 
 
 distinguished from excusable homicide, 150 
 Juvenile Offenders, 465 
 
 summary conviction in cases of simple larceny, 465 
 
 dismissal of case, 466 
 
 where summary proceedings cannot be resorted to, 466 
 
 K. 
 
 Keeping the Peace, 
 security for, 275, 278 
 forfeiture of recognizances, 276, 278 
 recognizances, general or special, 278 : v. Security. 
 
INDEX. 523 
 
 Killing, animals, 270 : v. Homioidb. 
 
 Knowledge : v. Caknal Knowledge ; Guilty Knowledge. 
 
 L. 
 Laboue : V. Hard Labodb. 
 Land : v. Eeal Peopeett. 
 Land Transfer Act, 1875 
 
 forgery against, 253 
 
 offences against, 259 
 Laeoent, 
 
 definition of, 187 
 
 simple and compound distinguished, 187 
 
 what things may be the subjects of, 188 
 
 at common law, only personal goods, 189 
 
 law as to things real, 189 
 
 severance, &c., makes personal goods, 189 
 
 materials of buildings, fixtures, &c., 189 
 
 ore or coal from mines, 190 
 
 trees, 190 
 
 plants, &c., 190 
 
 deeds, &c., 191 
 
 choses in action (including cheques, &c.), 191 
 
 animals, 193 
 
 deer, 194 
 
 hares and rabbits, 194 
 
 fish, 194 
 
 oysters, 195 
 
 dogs, 195 
 
 horses, cows, sheep, &c., 195 
 
 killing animals to steal carcase, skin, &c., 196 
 
 the value of the thing stolen, 196 
 
 grand and petty larceny, 196 
 
 ownership of goods, how laid, 197 
 
 the wilfully wrongful taking possession, 197 
 
 if claim of right, no felony, 197, 204 
 
 actual taking, 197 
 
 constructive taking, 198 
 
 where the right of property, as well as of possession, is parted 
 with, 198 ~ 
 
 authority of servant to part with property or possession, 199 
 
 where the possession is obtained animo furandi, 199 
 
 ring dropping, 199 
 
 narrow line separating larceny from false pretences, 200, 230, 
 246 
 
524 
 
 INDEX. 
 
 Lakceny — cont inued. 
 
 where the possession is obtained lawfully and hona fide without 
 
 any fraudulent intent in the first instance, 200 
 in cases of bailment, 200 
 
 where the delivery does not alter the possession in law, 201 
 bare use does not divest of possession, 202 
 the taking must be of another's goods, 202 
 by joint tenant or tenant in common, 202 
 by members of a corporation, 202, n. 
 by husband or wife, 202 
 larceny of things found, 203 
 the taking physically regarded, 203 
 asportation, 203 
 attempt, 203 
 animus farandi, 204 
 
 larceny distinguished from trespass, 204 
 need not be lucri causa, 205 
 servants taking master's corn, &c., 2 '5 
 counts for distinct acts of stealing, 206, 329 
 verdict of embezzlement on indictment for larcenv, and oke 
 
 versa, 206, 224 
 place of trial, 206, 338, 339 
 punishment, 207 
 
 after previous conviction, 436 
 
 in case of tenant or lodger, 207 
 
 of clerks or servants, 207 
 larceny distinguished from embezzlement, 221, 246 
 Compound or aggravated larceny, 207 
 
 of goods in process of manufacture, 208 
 
 from vessels, docks, &c., 209 
 
 from wrecks, 209 
 
 by those in the public service, constables, &c., 209 
 
 stealing from the person, 213 
 
 in relation to post-ofSce, 214 : v. Dwelling-house ; 
 
 BOBBEKT. 
 
 verdict of larceny on indictment for embezzlement, and vice 
 
 versa, 206, 224 
 on indictment for false pretences not acquittal because it 
 
 turns out to be larceny, 230 
 count for receiving may be added, 219, 329 
 Summary jurisdiction in larceny, 461 
 
 where the taking is not indictable, 461 
 where it is indictable, and the ground of the summary 
 jurisdiction is the smallness of the extent of the crime, 
 462 
 
INDEX. 525 
 
 Larceny — continued. 
 
 Summary jurisdiction in — continued. 
 only by consent of accused, 463 
 
 where the accused pleads guilty and consents to the sum- 
 mary disposal of the case, 463 
 proceedings arid effect of conviction, 464 
 juvenile offenders, 465 
 
 Laudanum, administering, &c., with intent, &c., 181 
 
 Law op Ceimbs, 6 
 
 ' of Criminal Procedure, 6 
 Law ov Nations, offences against, 41 
 Lead : v. Metal. 
 
 Leading Questions, rules as to, 402, 405 : v. ^Examination. 
 Letter : v. Threatening. 
 
 Levying War against the Sovereign, 49 
 
 direct or constructive, 49 : v. Felonious Compassing. 
 Lewdness : v. Indecency. 
 
 Libel, 
 
 both a crime and a civil injury, 3 
 an offence against the public peace, 105 
 definition of, 105 
 
 civil and criminal proceedings, 105 
 when an indictment will lie, 106 
 when it will not, 107 
 truth of the libel, 106 
 privileged communications, 108 
 form of libel, 109 
 publication of, 109 
 proof of malice, 109 
 what must be proved, 109 
 the province of the jury, 110 
 Fox's Act, 110 
 
 who are criminally liable, 110 
 newspaper proprietors, &c., 110 
 punishment, 111 
 costs. 111, 399 
 
 blasphemous libel : v. Blasphemy. Seditious Libel : v. Sedi- 
 tion. 
 
 Libel, threatening to publish^ &o., in order to extort, 112 
 Licence op Marriage, forgery of, 252 
 Licence under Penal Servitude Acts, 
 regulations as to holders of, 280, 455 
 
526 INDEX. 
 
 Licence undbk Penal SEEViTtTDB Acts — continued. 
 
 for what forfeited, 455 
 
 offences with regard, to, 455 
 
 remission of part of sentence follows as a matter of course, 456 
 Light : v. Signal. 
 
 Limitation of Time foe Peosecution ; v. Time. 
 Linen, 
 
 larceny of, in process of mannfacture, 208 
 
 injury to machines or manufactures, 267 
 Liquidation : v. Bankeupt. 
 Locus in quo, view of, by jury, 432 
 Lock, destroying, 269 
 LoEGEES, larceny by, 207 
 Lodging Thieves, &c., 219 
 Loom : v. Maohineet. 
 LoED High Stewaed, 
 
 court of, 286 
 
 at Oxford or Cambridge, 300 
 
 president on impeachment of peer for high treason, 284 
 on indictment of peer, 285 : v. 299, n. 
 LoEDS, House of : v. Pebes. 
 Lost Goods, larceny of, 203 
 
 LOTTEEIES, 134 
 
 Lucei Causa, in what sense taking in larceny must be, 205 
 Lunatics, 21 
 
 assault on, 185 : v. Insanity. 
 
 M. 
 
 Machineey, 
 
 demolishing, 266 
 
 damaging, if used in certain manufactures, 267 
 used in others, or in agriculture, 267 
 Madness, 21 : v. Insanity. 
 Magisteatb, 
 
 slanderous words uttered to, 56 
 
 false declarations before, 84 
 
 contempt of court by, 97 
 
 issue of warrant by, 304 
 
 summons, 304 
 
 information to, 305 
 
INDEX. 527 
 
 Magistbatb — continued. 
 arrest by, 308 
 proceedings before, 313 
 examination, 313 
 depositions, 313 
 binding over witness, 314 
 remand, 314 
 
 discharge or committal, 315 
 bail, 316 
 the sureties, 317 
 refusing or delaying bail, 317 
 excessive bail, 
 proceedings against, 474 : v. Summary Conviction. 
 
 Mail, offences with regard to, tried in any county through which it 
 passed, 338 : v. Post Office. 
 
 Maim, 
 
 wounding, &c., with intent to, 180 
 animals, 270 
 
 Maintenance, 90 
 
 what acts do not amount to, on account of relationship, 91 
 curalis, ruralis, 91, n. : v. Champeetj. 
 
 Mala in se and Mala quia Pkohibita, 5 
 
 as a test of the responsibility of ambassadors, 32 
 
 the distinction noticeable in offences against public trade, 113 
 
 Malice, 
 
 equals, in legal signification, criminal intention, 13 
 
 when it must be. directly proved, 13 
 
 when presumed, 14 
 
 active or positive, passive or negative, 14 
 
 express or implied, 14, 159 
 
 danger of entertaining the moral signification, 15 
 
 absence of, exempts from criminal responsibility, 19 
 
 presumed in homicide, 147 
 
 aforethought (^prepense), or murder malice, 158 
 
 Malicious Injury : v. Arson. 
 to houses by explosion, 266 
 
 by demolishing, 266 
 
 in the case of tenants, 267 
 to manufactures and machinery, 267 
 mines, 267 
 vessels, 268 
 wrecks, 268 
 
528 
 
 INDEX. 
 
 Malicious Injury — continued. 
 sea and river banks, 268 
 bridges, viaducts, and aqueducts, 269 
 turnpikes, 269 
 walls, gates, &c., 269 
 railway trains and telegraphs, 269 
 ponds and fish, 270 
 animals, 270 
 trees, 271 
 plants, 271 
 hopbinds, 272 
 works of art, 272 
 general provision, if damage exceeds £5 . . 272 
 
 if it does not exceed £5 .. 272, 464 
 making a dangerous or noxious thing with intent, &c., 273 
 not necessary to prove malice against the owner of the pro- 
 perty, 273 
 no defence that the offender was in possession, 273 
 general intent to defraud will suffice, 273 
 summary jurisdiction, 464 
 
 ManAGBE : V. COMPANIBS. 
 
 Manganese, larceny of, 190 
 
 Manslaughtbb, 160 
 
 moral character varies widely, 160 
 
 voluntary, 161 
 
 the instrument used, 161 
 
 distinguished from homicide se defendendo, 152, 162 
 
 involuntary, 162 
 
 negligence, 163 
 
 accessories before the fact, 35, 163 
 
 punishment, 163 
 
 by fighting, 164 
 
 by correction, 165 
 
 while doing an unlawful act, 165 
 
 a dangerous act, 165 
 of oflcers of justice, 165 
 by officers, 166 
 states of mind constituting manslaughter, 168 
 
 Man-teap, setting, 142 
 
 Manufaotubes, 
 
 offensive or dangerous, are nuisances, 133 
 larceny of goods in process of, 208 
 malicious injury to, 267 
 
INDEX, 529 
 
 Marines : v. Aemy. 
 
 Maebiage, 
 
 offences connected with, 127, 128, n. 
 
 forging licence or certificate, 252 : v. Rbgistek. 
 
 Married Woman : v. Wife. 
 
 Master, still in possession, though goods intrusted to servant, 201 
 
 Materiality : v. Perjury. 
 
 Matrons, jury of, 453 
 
 Mayhem, 180 
 
 Medical Evidence on Insanity, 23 
 
 Meeting-house : v. Chapel. 
 
 Menaces : v. Threats. 
 
 Merchandise Marks Act, 1862 . . 118 
 
 Merchant, 
 
 embezzlement by, 225 
 
 trafficking in property intrusted, 226 
 
 Message : v. Telegraph. 
 
 Metal, &c., 
 
 belonging to house, larceny of, 190 
 
 purchasing less than specified quantities of old, 281 
 
 Middlesex, offences committed in, may be tried in Q. B. Division, 
 but usually at sessions or C. C. C, 287, 292 
 
 Middlesex Sessions, 297 
 
 Mill, setting fire to, 261 
 
 Mine, 
 
 larceny from, 190 
 
 setting fire to, 263 
 
 malicious injury to, by conveying water, &c., 267 
 
 obstructing ways, 267 
 
 obstructing engines, &c,, 267 
 
 Minimum Punishments, abolished, 435 
 
 Misadventure, homicide by, 152 
 
 Miscarriage, attempts to procure, 173 
 
 Misdemeanor, 
 
 distinguished from felony, 8 
 
 meaning of the term, 10 
 
 further points in which it differs from felony, 10 
 
 compounding, 98 
 
 2 M 
 
580 
 
 INDEX. 
 
 Misdemeanor — continued. 
 
 verdict for, though facts shew felony, 425 
 general punishment for, 436 
 
 MisPOETUNE, OK MiSHAP, as an exemption from criminal responsi- 
 bUity, 28 
 
 Misjoinder of Counts : v. Codnts. 
 
 Misnomer : v. Name. 
 
 Misprision, 
 
 meaning of, 8 
 
 negative or positive, 8 
 
 of treason, 53 
 
 of felony, 94 
 
 Mock Auction, larceny by means of, 200 
 
 Mohair, 
 
 larceny of, in process of manufacture, 209 
 
 injury to manufactures or machinery, 267 
 
 MoNETf : V. False Pretences. 
 
 Moral Nature of an act does not determine whether it is criminal, 
 4, 70, 127 
 
 Morals, offences against public, 127 
 
 Moravian: v. Quaker. 
 
 Motive, 
 
 may explain the intention, but does not determine the quality 
 of an act, 13 
 
 absence of, does not prove insanity, 23 
 Moulds, making, &c., for producing bank-notes, &c., 258 
 Municipal Election, 
 
 false declarations as to, 84 
 
 bribery, &c., at, 88 
 Murder, 155 
 
 varies in moral character, 155 
 
 definition, 156 
 
 the offender must be of sound memory and discretion, 156 
 
 the unlawful kilKng, 156 
 
 form of death, 156 
 
 cause of death, 157 
 
 time of death, 157 
 
 variance as to the form of death, 157 
 
 finding the body, 157 
 
 the offender must be a reasonable creature, in being, and under 
 the king's peace, 157 
 
 the malice aforethought, 158 
 
INDEX. 531 
 
 MuRDBE — conl inued. 
 
 express and implied malice, 159 
 
 punishment, 160 
 
 accessories after the fact, 160 
 
 on indictment for murder the jury may convict of certain 
 other offences, 160, 426 
 
 murder in fighting, 164 
 
 in correction, 164 
 
 whilst doing another act, 165 
 a dangerous act, 165 
 
 of ofacers of justice, 165 
 
 by oflcers, 165 
 
 states of mind constituting murder, 167 
 
 attempt to murder, 166 
 " MtJRDBATiT " to be used in indictment for murder, 325 
 Mute, 
 
 advising prisoner to stand, 89 
 
 prisoner standing, 356 
 Mutiny, 60, 62 
 
 inciting to, 60 
 
 Mutiny Acts, 60, 62 
 
 murder and manslaughter under, dealt with at C. 0. C, 293 
 
 N. 
 
 Name of prisoner in indictment, 323 
 National Church, offences against, 73 
 Nations, offences against the law of, 41 
 Naval Discipline Act, 60, 63 
 Navioable : V. EiVEB. 
 
 Navy, 
 
 desertion and mutiny, 60 
 offences in, 63 
 
 Neglect to peovidb, &c., 
 
 for apprentices or servants, 185 
 lunatics, 185 
 
 Negligence, 
 
 sometimes amounts to malice,-14 
 
 causing manslaughter, 163 
 New Trial, 447 
 
 when granted, 447 
 
 2 M 2 
 
532 INDEX. 
 
 New Trial — continvM. 
 by what courts, 448 
 how obtained, 448 
 
 Nbwspapbbs and Libel, 110 
 Night, under the Larceny Act, 238 
 Nisi Pkius, commission of, 291 
 NoMiNis Pe^sumptio, 418 
 
 NONCONFOEMITY, 73 
 
 NoN Compos Mentis : «. Insanity. 
 Not Guilty : v. General Issue. 
 Note : v. .Bank. 
 
 Noxious Thing, 
 
 administering, 181 
 
 with intent to cause miscarriage, 173 
 Nuisance, 
 
 common or public, 181 
 
 contrasted with priTate nuisance, 132 
 
 when gives rise to civil action, 132 
 
 abatement, 132 
 
 to highways, &c., 133 
 
 offensive trades, &c., 133 
 
 houses as, 133 
 
 lotteries, 134 
 
 miscellaneous, 134 
 
 who is liable for, 134 
 Number op Witnesses, 
 
 two in treason, 52, 394 
 
 two in peijury, 82, 395 
 
 0. 
 
 Oath, 
 
 nature of, in perjury, 79 
 
 of juror in felonies, 380 
 in misdemeanors, 380 
 
 of witness, 391 
 Oaths, false, 78 : v. Pbejuey. 
 Oaths, Unlawful : v. Unlawful. 
 Oaths, Voluntary : v. Voluntary. 
 Obliterating Crossings on Cheques, 251 
 Obscene Book, Print, &c., exposing to sale, 129 
 
INDEX. 533 
 
 Obstructing Lawful Aeeest, &o., 77 
 Obtaining Monet, &c., 
 
 by means of forged irtstrument, 259 
 
 by false pretences : v. False Pbbtbncbs. 
 Offence, 
 
 contrasted with crime, 7 
 
 of a public nature, 41 
 
 against the law of nations, 41 
 
 against the Government and Sovereign, 45 
 
 by members of the army and navy, 62 
 
 against religion, 70 
 
 against public justice, 74 
 
 compounding, 92 
 
 against the public peace, 100 
 
 against public trade, 113 
 
 against public morals, health, and good order, 127 
 
 of a private nature, or against individuals, 144 
 
 why regarded as crimes, 144 
 
 against the person, 145 
 
 against the property, 187 
 
 prevention of, 275 : v. Prevention. 
 
 Offenders, photographing, 280 : v. Habitual. 
 
 Office, 
 
 bribery of those in, 85 
 
 trafiBcking in public, 86 
 Office, setting fire to, 261 
 Officer, Peace, 
 
 allowing escape, 74 
 
 assaulted in execution of duty, 78, 184 
 
 refusing to aid, 78 
 
 killing those resisting, &c., in execution of duty, 148 
 
 when guilty of murder or manslaughter, 148 
 
 larceny by, 209 
 
 embezzlement by, 222 
 
 executing warrant, 306 
 
 arrest by, 308 
 
 Officer, Public, 
 misconduct of, 95 
 malfeasance of, 95 
 nonfeasanceof , 96 
 larceny by, 209 
 embezzlement by, 222 
 
534 
 
 INDEX. 
 
 Onus Pkobandt, 407 
 
 Opinion Evidence, 404 
 
 Order for Monet, &c., 
 larceny of, 192 
 forging, 251 
 
 Order or Magistrate, forging, 252. 
 
 Orb, larceny of, 190 
 
 Outlawry, 
 
 in misdemeanors, 348 
 
 in felonies, 348 
 
 consequences of, 349 
 
 reversal of, 349 
 OvEKT Act, 
 
 in compassing, &c., death of Sovereign, 48 
 
 in treason generally, 52 
 
 Ownership of Stolen Goods, 
 how described, 197 
 indictment, how laid, 323 
 of deceased, 324 
 of married woman, 324 
 of partner, 324 
 of company, 324 
 of county property, 324 
 in cases of bailment, 324 
 consequences of incorrectly laying, 324 
 
 Oxford University Courts, 299 
 Oyer and Tebminbe, 
 
 courts of, 289 
 
 commission of, 290 
 
 Oysters, stealing, dragging for, &c., 195 
 
 Pains and Penalties, bill of, 282 
 Palmistry, 72 
 Panel of Jurors, 372 
 
 Paper, 
 
 making, &c., in imitation of Exchequer bills, 257 
 
 purchasing, &c., such paper, 257 
 
 making, &c., in imitation of bank notes, 258 
 
INDEX. 535 
 
 Pahdon, 
 
 not pleadable to an impeachment, 283 
 when may be pleaded, 364 
 at the discretion of the Soyereign, 453 
 when the Sovereign cannot pardon, 454 
 how given and construed, 454 
 conditional, 454 : v. Licence. 
 
 Parent, killing by, in defence of child, 151 
 Paeis, Dbclaeation op, 42, n. 
 Paeliament, 
 
 high court of, 282 
 
 in legislative capacity proceeds against offenders by bills of 
 attainder, or of pains and penalties, 282 
 
 in judicial capacity, by impeachnient or indictment, 282 
 
 proceedings on impeachment, 283 
 
 on indictment, 284 : v. Lord High Stewaed. 
 Paeliamentaky Election, 
 
 false declarations as to, 84 
 
 bribery, treating, undue influence, &c., at, 86 
 
 Paeol : V. Evidence. 
 
 Paetial Insanity, 22 
 
 Paeticulae Eight and Weong Theoey in Insanity, 23 
 
 Partners, goods of, ownership how laid, 324 : v. Joint Ownbe. 
 
 Paety to Suit, contempt of court by, 98 
 
 Passengee : V. Railway. 
 
 Paupbeis, defence and prosecution infurmd, 431 
 
 Pawnbeokee, 
 
 receiving stolen property, 219 
 compensation to, 434 
 
 Paymastee, forging name of, 252, n. 
 
 Peace, comnadssion of the, 291 
 
 Peace, keeping the : v. Keeping. 
 
 Peace Oppicbe : v. Opficee. 
 
 Peace : v. Public Peace. 
 
 Pedigeee, proof of, 413 
 
 Peeks, 
 
 house of, impeachment before, 283 
 
 indictment before, 284 : o. Loed High Steward. 
 
 Peine forte et dure, 356 
 
536 
 
 INDEX. 
 
 Penal Seevitude, 
 
 being at large during term of, 76 
 
 where tried, 340 
 as a punishment, 438 
 place, &o., 439 
 shortest term, 439 
 
 Penal Statute, time limited for information or indictment on, 
 832 : V. Ineormation. 
 
 Penetration, proof of, in rape will suffice, 171 
 
 Per Infortunium, homicide, 152 
 
 Peremptory Challenge : v. Challenge. 
 
 Perjury, 
 
 definition, 78 
 
 punishments of, applied to other false oaths, 78 
 
 false afBrmations, 79 
 
 nature of the oath, 79 
 
 it must be taken falsely, wilfully, and absolutely, bO 
 
 materiality of matter sworn, 80 
 
 the oath need not be believed, &c., 81 
 
 false verdict, &c., not perjury, 81 
 
 sufficient to prove one assignment, 82 
 
 under Vexatious Indictments Act, 82 
 
 judge may direct prosecution, 82 
 
 'two witnesses must be called, 82 
 
 punishment, 83 
 
 subornation of, 83 
 
 Perpetuation of Testimony, 421 
 
 Person, stealing from the, 213 
 
 Personation, False, 
 
 punished at common law as a cheat, 234 
 
 closely connected with forgery, 234 
 
 of seamen, 234 
 
 of soldiers, 234 
 
 of owners of stock, &c., 235 
 
 to obtain property generally, 235 
 
 of bail, 236 
 
 of voters, 236, n. 
 
 Petty Treason, now regarded simply as murder, 45, n. 
 
 Petty Jury, 
 
 contempt of court by, 97 
 who are liable to serve, 370 
 
INDEX. 537 
 
 Petty Jvvct— continued. 
 
 who exempt, 371 
 
 list prepared by sheriff, 371 
 
 exemptions after service, 372 
 
 fining for non-attendance, 373 
 
 putting into the box, 373 
 
 challenge (q. v.), 373 
 
 tales in case of insnfQcient number, 377 
 
 conduct of, 378 
 
 adjournment of trial, 378 
 
 death, illness, &c., of, 378 
 
 special jury, 378 
 
 jury de medietate linguoe, 300, 379 
 
 swearing the jury, 380 
 
 view of locus in quo, 432 : v. Embeacbey ; Vbkdiot. 
 
 Petty Laecbny, distinguished from grand, 196 
 
 Petty Sessions : v. Magistrate. 
 
 Photogeaphing Ofpendebs, 280 
 
 Physical Compulsion, an exemption from criminal responsibility, 
 29 
 
 Pigeon : v. Bied. 
 
 Piles, removing, 269 
 
 Piracy, 41 
 
 at common law, 41 
 
 when tried in England, 42 
 
 nation cannot be guilty of, 42 
 
 enemies cannot commit, 42 
 
 by statute, 43 
 
 punishment, 43 
 
 Place op Offence, when, must be specially stated in the indict- 
 ment, 325 
 
 Place op Teial, 337 
 general rule, 337 
 exceptions, 337 
 if crime committed partly in one county, partly in another 
 
 339 
 upon journey, 339 
 receivers, where tried, 340 
 accessories, 340 
 blow followed by death, 340 
 return from transportation, &c., 340 
 ofl'ences committed abroad, 341 
 
 in detached parts of counties, 341 
 
538 
 
 INDEX. 
 
 Plant, 
 
 larceny of, 190 
 destroying, 271 
 
 Plates, 
 
 making, &c., to forge Exchequer bills, &e., 257 
 bank notes, 258 
 
 Pleading : v. Plea8. 
 Pleas, 360 
 
 names and order of, 360 
 
 how many may be resorted to, 360 
 
 to the jurisdiction, 361 
 
 in abatement, 362 
 
 special pleas in bar, 862 
 
 judgment thereon, 362 
 
 autrefois acquit, 363 
 
 autrefois convict, 364 
 
 autrefois attaint, 364 
 
 pardon, 364 
 
 general issue of not guilty, 365 
 
 Pleas of the Crown, origin of the term, 6 
 
 Pledge by Factor, &c., of Goods intrusted, 226 
 
 Plundering Wrecks, 209 
 
 Poaching : v. Game. 
 
 Pocket-picking, 213 
 
 Poison, administering, &c., 181 
 
 Police Ofeiceb : v. Officer. 
 
 Police Supervision : v. Supervision. 
 
 Polls, challenge to the : v. Challenge. 
 
 Pond, malicious injury to, 270 
 
 Posse Comitatus, 102, 307. 
 
 Possession, 
 
 having counterfeit coin in, 67 
 
 skins, &c., of deer, 194 
 
 stolen dogs, 195 
 
 instruments, &c., for forging, 257 : v. Eecent Possession ; 
 Taking. 
 Possession, distinguished from property, 188 
 
 Pos* Office, 
 
 larcehy, &c., in relation to, 214 
 in case of employes, 214 
 of any person, 214 
 property laid in Postmaster-General, 215 
 
INDEX. 539 
 
 Post Of fiob — continued. 
 
 telegrams regarded as post letters, 215 
 receiving, &c., post letters, &c., 218 
 venue in robbery of mails, &e., 338 
 
 Postponement of Trial, 354 
 poundbbeach, 77 
 
 POWEE OF AtTOENEY, 
 
 embezzlement by persons intrusted with, 225, 226 
 
 forgery of, 250 
 
 forgery of attestation to, 251 
 
 Practice (v. the various titles). 
 Arrest, 303 
 
 by warrant, 303 
 
 without warrant, 308 
 
 upon hue and cry, 311 
 
 rewards for apprehension, 311 
 Proceedings he/ore the magistrate, 313 
 
 examination, 313 
 
 bail, 316 
 Modes of prosecution, 321 
 
 upon previous finding, 321 
 
 presentment, 321 
 
 indictment, 322 
 
 counts, 327 
 
 joinder of defendants, 331 
 
 time limited for prosecution, 331 
 
 information, 332 
 
 coroner's inquisition, 334 
 flace of trial, 337 
 Grand jury, 342 
 
 the charge, 342 
 
 examination before, 343 
 
 Vexatious Indictments Act, 344 
 Process, 346 
 
 bench warrant, 347 
 
 outlawry, 348 
 Certiorari, 351 
 Tinie of trial, 354 
 
 arraignment, 355 
 
 standing mute, 356 
 
 confession, 358 
 PUas, 360 
 
 to jurisdiction, 361 
 
 in abatement, 362 
 
540 
 
 INDEX. 
 
 Practice — con tinned. 
 Fleas — continued. 
 
 in bar, 362 
 
 autrefois acquit, 363 ' 
 
 autrefois convict, 364 ■ , 
 
 autrefois attaint, 364 
 
 pardon, 364 
 
 the general issue, 365 
 Demurrer, 367 
 Petty jury, 370 
 
 sununoning, 371 
 
 fining for non-attendance, 373 
 
 putting in box, 373 
 
 challenging, 373 
 
 tales, 377 
 
 conduct of, &c., 378 
 
 illness, death, 378 
 
 special, 378 
 Hearing, 380 
 
 swearing the jury, 380 
 
 giving the prisoner in charge, 381 
 
 address and examination by counsel, 381 
 
 summing-up, 384 
 
 questions by prisoner, a farce, 385 
 Witnesses, 386 
 
 grounds of incompetency, 386 
 
 tests of credibility, 391 
 
 character of, 393 
 
 number of, 394 
 
 evidence of accomplices, 395 
 
 attendance of, 395 
 
 expenses of, 397 
 Examination of witnesses, 400 
 
 witnesses out of court, 401 
 
 examination-in-chief, 402 
 
 leading questions, 402 
 
 evidence from own knowledge, 404 
 
 of experts, &c., 404 
 
 refreshing memory, 404 
 
 contents of documents, how proved, 404 
 
 witness proving hostile, 404 
 
 cross-examination, 405 
 
 re-examination, 406 
 
 questions through the judge, 406 
 
 objections to questions, 406. 
 
IHDEX. 541 
 
 Practice — continued. 
 Evidence, 407 
 
 burden of proof, 407 
 what must be proved, 408 
 what may not be proved, 409 
 evidence of other offences, 409 
 
 when admitted, 410 
 as to character, 411 
 best evidence to be given, 412 
 hearsay no evidence, 412 
 when admitted, 413 
 depositions of ill or deceased persons, 414 
 confession, 414 
 circumstantial evidence, 416 
 written evidence, 419 
 handwriting, 422 
 
 differences between rules of civil and criminal evidence, 
 423 
 Verdict, 424 
 
 for crime not charged in indictment, 425 
 acquittal or conviction, 426 
 second indictment, 427 
 proof of previous conviction, 427 
 Judgment, 429 
 
 arrest of, 429 
 Incidents of trial, 431 
 
 defence, &c., in forma pauperis, 431 
 view of locus, 432 
 adjournment of trial, 432 • 
 
 withdrawal from prosecution, 432 
 restitution of goods, 483 
 Punishment, 435 
 death, 438 
 penal servitude, 438 
 imprisonment, 439 
 fine, 440 
 hard labour, 440 
 whipping, 441 
 solitary confinement, 442 
 police supervision, 443 
 recognizances and sureties, 443 
 reformatory, 444 
 industrial school, 444 
 forfeiture of office, &c., 445 
 costs, 446 
 
542 
 
 INDEX. 
 
 Practice — continnsd. 
 . Proceedings after trial, 447 
 new trial, 447 
 
 reversal of judgment by writ of error, 448 
 error under Supreme Court of Judicature Acts, 450 
 Court for Crown Cases Eeserved, 450 
 Keprieve and pardon, 453 ' 
 
 ticket of leave, 455 
 Execution, 457 : v. Summary Convictions. 
 
 Pr«munibe, 69 
 
 Pregnancy of woman sentenced to death, 453 
 
 Presentment, 321 
 
 Presumptions classified, 418 
 
 Presumptive Evidence, distinguished from direct, 416: v. Cir- 
 cumstantial. 
 
 Pretences : v. False Pretences. 
 
 Prevention op Crime, 275 
 
 by giving security {q. v.), 275 
 
 general measures for, 280 
 Previous Conviction, 
 
 evidence of, on indictment for receiving, 217 
 
 when count may be added for, 330 
 
 how proved, 4:20, 427 
 
 when evidence of, may be given before subsequent conviction, 
 427, 428, n. 
 
 punishment for offences after, 436 
 in simple larceny, 436 
 in uttering coin, &c., 437 
 Principal, 
 
 distinguished from accessory, 38 
 
 in the first degree, 33 
 
 in the second degree, 33 
 
 all are principals in treason, 38 
 
 as to misdemeanor, 38 
 Prison : v. Breach. 
 Prisoner, 
 
 allowing to escape, 74 
 
 aiding to escape, 75 
 
 presence of, at trial, 357 
 
 interrogation of, 387 
 
 Private Nature, offences of a, 144 
 Privateering abolished, 42, n. 
 
INDEX. 543 
 
 Peivilbgbd Communications, 
 
 exempting from libel, 108 
 
 between solicitor and client, 390 
 Peivt Seal, forging, 250 
 Process, 346 
 
 warrant by magistrate, 346 
 
 bench warrant, 347 
 
 in misdemeanors, 347 
 
 in felonies, 348 
 
 outlawry, 348 
 
 on information, 349 
 
 Proclamation undee Riot Act, 102 
 
 Phooueation, making, accepting bill, &c., by, for other person with- 
 out authority, 251, n. 
 
 Peofanation of the Sabbath, 73 
 
 Peofanb Swbaeing, 72 
 
 Peomissort Note, 
 
 larceny of, 192 
 
 forging, 251 
 
 Pkopeett, distinguished from possession, 188 : v. Goods : Owner- 
 ship. 
 
 Peosbcution, modes of, 321 
 
 Prosecutor, want of public, 92 
 
 Peovooation, reducing homicide to manslaughter, 161 
 
 Public Buildings, setting fire to, 262 
 
 Public Company : v. Company. 
 
 Public Health, morals, &c., offences against, 127 
 
 Public-house, offences by keeper of, e.g., lodging thieves, 219 
 
 Public Justice, offences against, 74 
 
 Public Natueb, offences of a, 41 
 
 Public Office, Offices : v. Office ; Oppicbe. 
 
 Public Peace, offences against, 100 
 
 Public Peosecutoe, want of, 92 
 
 Public Stores, unlawful dealings with, 61 
 
 Public Teade, offences against, 113 
 
 Public Woeship, 
 
 disturbing, &c., 72 
 
 riotous or indecent behaviour in, 72 
 
544 
 
 INDEX. 
 
 Publication of Libel, 109 
 
 Punishment, 
 
 general nature of, 1 
 
 the test whether a proceeding is civil or criminal, 4 
 
 minimum punishments abolished, 435 
 
 wide limits in some crimes, 435 
 
 for felonies, 435 
 
 after previous conviction, 436 
 for misdemeanor, 436 
 for larceny after previous conviction, 436 
 for uttering, &c., coin after previous conviction, 437 
 several terms, either concurrent or continuous, 437 
 punishments enumerated, 438 
 death, 438 
 penal servitude, 438 
 imprisonment, 439 
 fine, 440 
 hard labour, 440 
 whipping, 441 
 solitary confinement, 442 
 police supervision, 443 
 recognizances and sureties, 443 
 reformatory, 444 
 industrial school, 444 
 forfeiture of property abolished, 445 
 
 of office, 445 
 property of felon taken care of, 446 
 costs by prisoner, 446 
 
 Purchaser or Stolen Goods, right of owner preferred to innocent, 
 434 
 
 Q. 
 
 Quaker, 
 
 false affirmation by, 79 
 affirmation by, 391 
 
 Quarrel, killing in sudden, 161 
 
 Quarter Sessions foe the County, 294 
 time of holding, 294 
 adjournment, 294 
 who compose the court, 294 
 jurisdiction, 295 
 crimes not triable at, 295 
 appeals against summary convictions, 297 
 
INDEX. 545 
 
 QuAETEB Sessions for the County— con iiw/eA 
 review of proceedings, 297 
 Middlesex, 297 
 bail by, 319 
 appeal from, 450 : v. Bokough Sessions. 
 
 Quay, 
 
 stealing from, 209 
 destroying,'269 
 
 Queen, 
 
 compassing the death of, 48 
 
 attempt to injure or alarm, 53 : v. Sovereign, 
 
 Queen's Bench Division, 286 
 Crown side and Plea side, 286 
 original jurisdiction, 286 
 transferred jurisdiction, 287 
 mode of trial, 288 
 may order trial at C. C. C, 288 
 supersedes other courts, 288 
 bail by, 318 
 
 Queen's Evidence, 359 
 
 Qui tam, 332, n. 
 
 Quorum, justices of the, 294, n, 
 
 K. 
 
 Eabbits : V. Game. 
 Eailway, 
 
 offences endangering on, 183 
 
 setting fire to buildings, 261 
 
 malicious injury to train, 269 
 to telegraphs, 270 
 
 offences committed on, where tried, 339 
 Eapb, 170 
 
 who cannot be convicted of, 170 
 
 essentials of the crime, 170 
 
 credibility of testimony of the woman, 171 
 
 Eapuit, must be used in indictment for rape, 325 
 
 Ebal Pkopekty, at common law not the subject of larceny, 189 
 
 Eboeipt, forging, 251 
 
 Eeceiving stolen Goods, 216 
 
 when a felony, when a misdemeanor, 216 
 
 2 N 
 
546 
 
 INDEX. 
 
 Ebceiving stolen Goods — continued. 
 
 if felony, offender tried as accessory, or as committer of a dis- 
 tinct felony, 216 
 evidence, 217 
 guilty knowledge,[217 
 
 evidence of previous conviction, 217, 281, 410 
 post letters, &c., 218 
 punishment, 218 
 
 verdict of larceny or of receiving, 218 
 any number of receivers may be tried for substantive felonies, 
 
 219 
 pawnbrokers, 219 
 
 count for larceny may be added, 218, 329 
 where tried, 340 
 
 evidence of having had possession, or of previous conviction, 
 410 
 Eecent Possession, 220 
 Eecognizancb, 
 nature of, 275 
 for keeping the peace, 276 
 for good behaviour, 276 
 forfeiture or estreat, 276 
 of witness to appear at trial, 814 
 in case of those convicted of crimes under the Consolidated 
 
 Acts, 443 
 delivery to court, 320 
 Recommendation to Meboy, 427 
 Eeooedeb 
 
 of London, at 0. 0. C, 292 
 judge at borough sessions, 298 
 Record, 
 
 courts of, 96, n. 
 criminal dealings with, 94 
 stealing, injuring, obliterating, &c., 192 
 forging, &c., 251 
 how proved, 419 
 Re-bxamination, 406 : o. Examination. 
 Ebfoematobt, 444 
 Eepbeshing the Memoey, 404 
 
 Registeb, 
 
 of births, marriages, deaths, false declarations as to, 84 
 
 forging, false entry, &c., 252 
 
 of deeds, forging certificate relating to, 252 
 
INDEX. 
 
 547 
 
 RuLiaioN, 
 
 offences against, 70 
 
 want of, does not now render incompetent to give evidence, 390 
 Eeligious Impostors, 72 
 Remand, of accused by magistrate, 314 
 Eeplioation to Plea, 361 
 Reply, right of, by counsel for prosecution, 382 
 Eepbievb, 453 
 Rescue, 77 
 
 distinguished from escape, &c., 74 
 
 of person committed for, or convicted of, murder, 77 
 
 of offender sentenced to penal servitude, 77 
 Eesbbvoib, 
 
 destroying works, 269 
 
 damaging dams, &c., 270 
 
 Ees Gests;, hearsay admitted as evidence if part of, 414 
 Eesidenoe, in burglary, 239 
 Responsibility, exemptions from criminal, 19 
 Restitution, 
 
 in forcible entry and detainer, 112 
 
 of goods under the Larceny Act, 433 
 
 Retubning feom Penal Seevitude : v. Penal Servitude. 
 
 Reversal or Judgment, 448 : v. Writ of Beeoe. 
 
 Reward to Witness, 311 
 
 Reward, 
 
 taking, for helping to property stolen, &c., 93 
 advertising for return of such property, 93 
 for helping to recover stolen dog, 195 
 
 Right, claim of, no larceny where there is, 197, 204 
 
 Eing-deopping, 199 
 
 Riot, 100 
 
 killing by ofiScers justifiable, 148 
 
 Riot Act, 102 
 
 EivBB, nuisance to, 133 
 destroying works, 269 
 
 Robbery, 
 
 on high seas is piracy, 42 
 definition, 210, 247 
 
 2 N 2 
 
548 
 
 INDEX. 
 
 EOBBEEY — coritinued. 
 
 gist is the force or bodily fear, 210 
 
 possession of the property must be obtained, 211 
 
 taking must be from the person, or in the presence, 212 
 
 against the will, 212 
 punishment, 212 
 assault with intent to rob, 213 
 verdict of assault with, &c., on indigtment for robbery and 
 
 vice versa, 213 
 
 EoGUE AND Vagabond, 137 
 EouT, 100 
 
 S. 
 
 Sabbath, profanation of, 73 
 
 Saceilbgb, 244 
 
 Sailor : v. Navy ; Seaman. 
 
 Sale of Tood and Drugs Act, 1875 .. 135 
 
 Sanctions, 
 
 attendant on civil injuries and on crimes, 1 
 of the criminal law enumerated, 438 
 
 Savings Bank, appropriation of money by oflScers, 229 
 
 SCIBNTEK : V. GrUILTY KNOWLEDGE. 
 
 Sea, sending unseaworthy ship to, 138 
 
 Sea-wall, damaging, 268 
 
 Seal, 
 
 forging great, 250 
 forging privy, 250 
 
 Seaman, 
 
 forcing on shore, 184 
 leaving behind, &c., 184 
 false personation of, 234 
 
 Search, 
 
 for game, 142 
 
 for stolen property, 281 
 
 Search Warrant, 307 
 
 Second Indictment, 427 
 
 Secondary Evidence, 412 
 
 Second-hand Evidence : v. Hearsay. 
 
INDEX. 549 
 
 Security, 
 
 giTOig, 275 
 
 of what it consists, 275 
 
 nature of the recognizance, 275 
 
 forfeiture, 276 
 
 by whom and of whom demanded, 276 
 
 proceedings if granted by justices out of sessions, 277 
 
 at sessions, 277 
 
 for keeping the peace (5. v.), 278 
 
 for good behaviour (q. v.), 278 
 
 Secueity, Valuable : v. Valuable Security. 
 
 Se Defenbendo, 
 
 homicide, 150, 151 
 
 distinguished from manslaughter, 152, 162 
 
 Sedition, 55 
 
 what constitutes seditious libels or words, 55 
 truth of, no defence, 56 
 
 Sblf-defencb : v. Se Defendendo. 
 
 Selling counterfeit coin at lower value, 65 
 
 Sending Threatening Letters : v. Threatening. 
 
 Sending unseaworthy ship to sea, 138 
 
 Sentence : v. Judgment. 
 
 Separatists : v. Quakers. 
 
 Servant, 
 
 assault on, 185 
 
 authority of, to part with property or possession, 199 
 
 having oversight of goods, master still in possession, 201 
 
 taking master's com, &c., 205 
 
 larceny by, 207 
 
 proof of employment as, in embezzlement, 222 
 
 Sessions : v. Borough Sessions ; Quarter Sessions. 
 
 Setting Fire : v. Arson. 
 
 Settlement, Act of, two forms of treason violating provisions of, 
 51 
 
 Severance, 
 
 turning real into personal property, 189 
 must take place, to constitute asportation, 203 
 
 Sheep Stealing, 195 
 
 killing, maiming, &o., 270 
 
550 INDEX. 
 
 Sheriff, 
 
 contempt of court by, 97 
 
 arrest by, 308 
 Sheriff's Tourn, 300, n. 
 
 Ship, 
 
 forfeiture of, for offence against Foreign Enlistment Act, 59 
 
 sending to sea in unseaworthy state, 138 
 
 stealing from vessel in harbour or on river or canal, 209 
 
 stealing from vessel in distress or wrecked, 209 
 
 setting fire to, casting away, destroying, 263 
 
 attempt, 264 
 setting fire to vessel of war, 264 
 
 to vessel in docks of port of London, 264 
 damaging vessel by explosion, 263 
 
 otherwise, 268 
 endangering, 268 
 
 Shipbuilding, Illegal : v. Foreign Enlistment Act. 
 
 Shipwreck : v. Wreck. 
 
 Shooting, 
 
 at revenue vessels or oflcers, 114 
 at any person with intent, &c., 180 
 
 Shop, 
 
 breaking into, 244 
 setting fire to, 261 
 
 Sign Manual, forging, 250 
 
 Signal, 
 
 tampering with, with intent to endanger vessel, 268 
 
 interfering with railway, 269 
 
 Silk, 
 
 larceny- of, in process of manufacture, 208 
 injury to manufactures or machines, 267 
 
 Similiter, 366 
 
 Simple Larceny distinguished from compound, 187 : v. Larceny. 
 
 Slander, indictable, 108 
 
 Slaves, offences as to, 44 
 
 Sluices, destroying or opening, 269 
 
 Smuggling, 113 
 
 forfeitures and penalties, 113 
 
 three or more armed for purpose of, 113 
 
 shooting at revenue vessels or officers, 114 
 
INDEX. 551 
 
 Smuggling — continued. 
 
 more than five armed, or with prohibited goods, 114 
 
 assaulting officers, 114 
 
 making signals to smuggling vessels, 114 
 
 search for smuggled goods, 115 
 
 time limited for prosecution, 331 
 
 Societies, TJnlawftil : v. Unla-vwul. 
 
 SoDOHTY : V. Unnattjbal Crime. 
 
 SoLDiBK, false personation of, 234 : v. Abmy. 
 
 Solicitor, 
 
 embezzlement by, 225 
 
 when incompetent to give evidence against client, 890 
 
 Solitary Continbment, 442 
 
 Sovereign, 
 
 incapable of committing crime, 31 
 
 offences against, 45 
 
 compassing or imagining the death of, 48 
 
 levying war against, 49 
 
 compassing, &c., death, destruction, harm, &c., 51 
 
 compassing to depose, &c., 54 
 
 various contempts, and high misdemeanors against, 68 
 
 " Speaking with the Pboseoutob," 93 
 
 Special Commission, 292 
 
 Special Jury, 378 
 
 Special Plea : v. Plea. 
 
 Spring-giw, setting, 142 
 
 Stabbing : v. Wounding. 
 
 Stable, setting fire to, 261 
 
 Stack, setting fire to, 262 
 
 Stamps, forging Inland Eevenue, 252 
 
 Standing Mute : v. Mute. 
 
 Starving, homicide by, 157 
 
 Statement of Indictment, 328 
 
 as to name, 323 
 
 ownership, 323 
 
 time, 324 
 
 place, 325 
 
 facts, &c., 325 
 
552 INDEX. 
 
 Station, setting Are to, 261 
 
 Statues, destroying, &c., 272 
 
 Statute, 
 
 Climes by, 5 
 
 when makes an act an indictable crime, 7, 322 
 
 how proved, 419 
 
 Stealing, Children, 176 : v. Laeoeni. 
 
 Stbwaed, Lord High : v. Lord High Steward. 
 
 Stock, 
 
 false personation of owners of, 235 
 forging transfer of, 250 
 
 forging stock certificates for pajrment of interest of national 
 debt, 252 
 
 Stolen Property, Eeceiving : v. Eeoeiving ; Search. 
 
 Stores : v. Public Stores. 
 
 Strangle, attempt to, with intent, &c., 181 
 
 Straw, setting fire to, 262 
 
 Subornation op Perjury, 83 
 
 SuBPfflNA, 396 
 
 consequence of not obeying, 396 
 
 SuBP<ENA Duces Tecum, 396 
 
 Suffocate, attempt to, with intent, &c., 181 
 
 Suicide, 153 
 
 advising to commit, 154 
 consequences, 154 
 attempt to commit, 155 
 
 Suing in name of fictitious plaintiff, 90 
 
 Summary Convictions, 458 
 
 jurisdiction, &c., of magistrates, 458 
 
 is local, 459 
 
 how many required, 459 
 
 cases beyond jurisdiction, 459 
 common assaults and batteries, 178, 460 
 small larcenies, &c., 461 
 small wilful injuries, 464 
 game offences, 465 
 juvenile offenders, 465 
 proceedings, 466 
 the information, 467 
 
INDEX. 553 
 
 Summary GoKViaTiONB— continued. 
 summons, 467 
 ■warrant, 468 
 
 examination in absence of accused, 468 
 the hearing, 469 
 one party not appearing, 469 
 adjournment, 469 
 proceedings at hearing, 469 
 conyiction or dismissal, 470 
 judgment, 470 
 enforcing fines, 471 
 costs, 471 
 appeal, 471 
 
 to quarter sessions, 297, 472 
 
 case stated to superior court, 472 
 
 on point of law, 473 
 irregular commitment, 473 
 
 removal to Queen's Bench DiTision by certiorari, 474 
 proceedings against magistrates, 474 
 summary jurisdiction depends entirely on statute, 474 
 summino-dp of the judge, 384 
 
 Summons, 
 
 forgery of, 252 
 
 issue of, 304 
 
 contents of, 305 
 
 form of, 305, n. 
 
 to person charged with summary offence, 467 
 
 to secure attendance of witness, 469 
 
 Sunday : v. Sabbath. 
 
 SuPBEYisioN OF Police, 281, 443 
 
 SupptiCAViT, writ of, 276 
 
 Supreme Court of Judicature Act, 
 judges at assizes imder, 291, n. 
 appeal under, 450 
 
 Sureties : v. Bail ; Recognizance. 
 
 Surrey, commission, &c., for, 289 
 
 Suspicion, 
 
 arrest by constable on, 308 
 
 by private person, 310 
 " Swearing the Peace," 278 
 Swearing, profane, 72 
 
554 INDEX. 
 
 T. 
 
 Taking, 
 
 wilfully wrongful, 197 
 
 actual, 197 
 
 constructive, 198 
 
 what amounts to, 203 
 
 liKri causa, 205 
 
 in robbery, 211 : v. Labcbny. 
 Tales db Ciroumstantibtjs, 377 
 Tblbgbaph, 
 
 stealing, &c., messages, 215 
 
 disclosing or intercepting messages, 215 
 
 injury to, 270 
 
 Tenant, 
 
 larceny by, 207 
 demolishing buildings, 267 
 
 Tenant in Common, larceny by, 202 
 
 Theft, proposed definition of, 247 : v. Laeobnt. 
 
 Theft Bote, 92 
 
 Threatening Letter, 
 
 sending, to burn, kill, &c., 104 
 
 to murder, 104 
 with intent to extort money, &c., 104 
 accusing of crime, in order to extort, 104 
 
 Threats, 
 
 in order to extort money, 104 
 in order to procure execution of deed, &c., 105 
 to publish Ubel in order to extort, 112 
 stealing in dwelling-house with, 245 
 
 Ticket of Leave : v. Licence. 
 
 Time, 
 
 when of essence of crime, 324 
 
 limited for prosecution in certain cases, 331 
 
 of trial, 354 
 
 Title-Dbeds, at common law not subjects of larceny, 189 
 
 Tools, 
 
 making coining, 67 
 conveying out of Mint, 68 
 search for, and seizure of, 68 
 
 Torts contrasted with Crimes, 2 
 
INDEX. 555 
 
 Trade, 
 
 offences against public, 113 
 
 unlawful interference with, by combinations, &c., 119 
 
 trade union, 120 
 
 acts criminally punishable, 120 
 
 proceedings by indictment or summary conviction at option of 
 
 offender, 121 
 assault to obstruct sale of grain, &c., 122 
 
 Tkades, offensive or dangerous, are nuisances, 133 
 Trade-marks, 
 
 counterfeiting and falsely applying, 118, 253 
 
 seUing goods with forged, 119 
 
 Trade Union, not to render liable to prosecution for conspiracy, 
 merely because in restraint of trade, 120 : v. Trade. 
 
 Training, illegal : v. Drilling. 
 
 Transfer of Land Act, 1875, offences against, 253, 259 
 
 Transportation : v. Penal Servitude. 
 
 Treason, 
 
 why termed " high," 45, n. 
 
 popular conception of, 45 
 
 classification of acts of, 46 
 
 history of the law of, 46 
 
 the statute 25 Edw. 3.. 46 
 
 gist of the offence altered, 47 
 
 compassing, &c., death of Sovereign, &c., if' 
 
 violating King's wife; &c., 48 
 
 levying war, 49 
 
 adhering to Sovereign's enemies, 49 
 
 slaying the Chancellor, &o., 51 
 
 counterfeiting the Great Seal and coinage offences no longer 
 
 treason, 50 
 additions to the list of acts which are, 50 
 time Kmited for prosecution, 51, 331 
 
 prisoner may have copy of indictment and List of witnesses, 51 
 the overt act, 52 
 prisoner's defence, 52 
 punishment, 52 
 evidence of other acts may be given, 410 
 
 Treason, Misprision of : v. Misprision. 
 
 Treason-felony, 54 
 
 Treasure Trove, concealment of, 68 
 
556 INDEX. 
 
 Tebating at Elections, 88 
 Tbebs, 
 
 larceny of, 190 
 
 setting fire to, 262 
 
 damaging, &c., 271 
 Trespass, larceny distinguished from, 204 
 Tbial, 
 
 offences interfering witli free administration of justice at, 89 
 
 place of, 337 
 
 time of, 354 
 
 modes of, 369 : v. Peacticb. 
 Triers, in case of challenge of jurors, 876 
 Trustee, embezzlement by, 227 
 Truth 
 
 of seditious Libel, no extenuation, 56 
 
 of defamatory Ubel, 106 
 Turnpike, destroying gates, bars, &c., 269 
 
 u. 
 
 Undue Influence at Elections, 88 
 
 TJniveebitt Courts, 299 
 
 Unlaweul Assemblies, 100 
 
 Unlawful Combination : v. Trade ; Unlawful Societies. 
 
 Unlawful Oaths, 56 
 
 voluntary oaths, 83 
 Unlawful Societies, 57 
 Unnatural Offence, 172 
 
 attempt, 173 
 
 assault with intent, 173 
 Unseawobtht Ships, sending to sea, 138 
 Uttering Counterfeit Coin, 66 
 Uttering, 
 
 in forgery, 256 
 
 the guilty knowledge, 257 
 
 Y. 
 
 Vagrancy, 136 
 Valuable Security, 
 
 stealing, destroying, obliterating, &c., 191 
 
 the term defined, 191 
 
 inducing person by fraud to execute, 234 
 
INDEX. 557 
 
 Value op Thing stolen, 196 
 
 Vakianob between Indictment and Evidence, 326 
 
 Vegetable : v. Plant. 
 
 Vehicle : v. 1)eiving. 
 
 Venire Facias ad Eespondbndum, 347 
 
 Venue, 323 : v. Place. 
 
 Vbbdict, 424 
 
 how arrived at and given, 424 
 
 general, partial, or special, 424 
 
 in case of co-defendants, 425 
 
 of attempt on indictment for complete crime, 425 
 
 for crime other than that charged, 425 
 
 objections to, 426 
 
 of acquittal, what it implies, 426 
 
 of guilty, 427 
 
 on previous conviction, 427 
 Vessel : v. Ship. 
 
 Vexatious Indictments Act, 344 
 Viaducts, destroying, &c., 269 
 
 Viob-Chancellor's Court at Oxford and Cambridge, 300 
 View of Frank Pledge, 300, n. 
 View of Locus in Quo by Jury, 432 
 Violation of King's Wife, &o., 48 
 Violence, in robbery, 211 
 Voluntary Oaths, 83 
 
 W. 
 
 Wall, 
 
 destroying, 269 
 damaging sea or river, 268 
 
 War, levying against the Sovereign, 49 
 
 War, Prisoner of, aiding to escape, 75 
 
 Warehouse, 
 
 breaking into, 244 
 setting fire to, 261 
 
 Warrant, 
 
 larceny of, 192 
 
558 INDEX. 
 
 Warrant — continued. 
 
 forging, 251, 252 
 
 definition, 303 
 
 by whom granted, 303 
 
 when issued, 304 
 
 if indictment has been found, 304, 346 
 
 if accused is in custody, 305 
 
 construction of, 305 
 
 form of, 306, n. 
 
 backing, 306 
 
 executing, 306 
 
 general warrants, illegal, 307 
 
 search warrants, 307 
 
 bench warrant, 347 
 
 in case of person charged with summary offence, 468 
 
 to compel attendance of witness, 469 
 Wateb, Depeiving of, by wilfully breaking contract of service, 121 
 Wat : v. Highway. 
 
 Weights and Measures, false, 236, 300, n. 
 Wharf, 
 
 stealing from, 209 
 
 destroying, 269 
 
 Whipping, 441 
 
 Wife, 
 
 when not criminally responsible, 29 
 
 as accessory after the fact, 37 
 
 cannot steal property of husband, 202 
 
 goods of, ownership how laid, 324 
 
 cannot be witness against her husband, except in two cases, 388 
 Will, 
 
 steaUng, destroying, &c., 192 
 
 forging, 251 
 Will, 
 
 an essential of a crime, 12 
 
 contrasted with intention, 12 
 
 absence of, exempts from criminal responsibility, 19 
 Witchcraft, 72 
 
 Withdrawal from Prosbctttion, 432 
 Witness, 
 
 offences with regard to, 89, 397 
 
 contempt of court by, 98 
 
 before magistrates, 314 
 
INDEX. 559 
 
 Witness — continued. 
 
 binding oTer to appear at trial, 314 
 
 examination by grand jury, 343 
 
 grounds of incompetency fewer now than formerly, 386 
 
 forms of incompetency, 386 
 
 incompetency of accused, 387 
 
 of accused's consort, 388 
 
 on account of insanity, 389 
 
 of infancy, 389 
 
 of relation of legal adviser, 390 
 
 of want of religious belief, 390 
 objection to competency, when made, 391 
 credibility of, 391 
 knowledge of, 392 
 disinterestedness of, 392 
 veracity of, 392 
 general character of, 393 
 
 what questions witness may refuse to answer, 393, 415 
 number of, 394 
 accomplices as, 395 
 attendance of, how secured, 395 
 production of documents by, 396 
 consequences of failure to appear, 396 
 attendance of witness, who is in custody, 396 
 privilege from arrest, 397 
 expenses of, 397 
 ordering out of court, 401 : v. Examination. 
 
 Women : v. Giels. 
 
 Wood, setting fire to, 262 : v. Fixtures. 
 
 Woollen, 
 
 larceny of, goods in process Of manufacture, 208 
 injury to manufactures or maclunery, 267 
 
 Words, technical, when to be used in indictment, 325 
 
 Workmen : v. Trade. 
 
 Works of Art, destroying, &c., 272 
 
 Worship : u. Public Worship. 
 
 Wounding, 180 
 animals, 270 
 
 WrecJk, 
 
 assault upon those engaged in preservation of, 183 
 impeding escape from, 183 
 
560 INDEX. 
 
 Weeok — continued. 
 stealing from, 209 
 destroying, 268 
 
 Writ of Eeeoe, 448 
 when it lies, 449 
 how obtained, 449 
 judgment affirmed or reversed, 449' 
 
 Wetting, 
 
 how proved, 404 
 
 best evidence as to, 412 
 
 rules as to evidence of, 419 : v. Evidence. 
 
 ; rBIHIED JBT WILLIAM CLOWES AKD SONS, STAUFOIID STKEEI 
 AXD CHABUfG C&OS& 
 
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