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'3 
 
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 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 IN nEnoRY OF 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
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Cornell University Library 
 KD 7865.3.F53 
 
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 You may use and print this copy in limited quantity 
 
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FISHER'S DIGEST 
 
 OF 
 
 CRIMINAL LAW. 
 
 Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
A DIGEST 
 
 OF 
 
 THE REPORTED OA.SE8 
 
 (FROM 1756 TO 1870, INCLUSIVE,) 
 
 RELATING TO 
 
 CRIMINAL LAW, 
 
 CRIMINAL INFORMATION, A^D EXTRADITION, 
 
 FomsTDED ON Haeeison's Anaitticax Digest. 
 
 By R. J>l. Fisher, jpsq., 
 
 Of the Middle Temple, Baeeistek at Law. 
 
 ^UMINER ^\^HITNEY & OO. 
 
 I 871. 
 
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EXCELSIOR PKESS: 
 
 Baooh & Company, Pkimtbrs 
 
 636 Clay Street. 
 
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This volume is a full reprint, from Mr. Fisher's Common Law Digest, 
 of the titles Criminal Law and Criminal Information, and will be found a 
 complete compendium of the English Law of Crimes and Punishments, 
 upon which our American Criminal Law is founded. 
 
 Some of the cases being based upon statutory proyisions, it was 
 deemed wise to include the digests of statutory enactments which precede 
 the notes of cases in Mr. Fisher's work and in this volume. 
 
 The later decisions, from the tenth and eleventh volumes of Cox 
 Criminal Cases, have been added under their appropriate heads. Each 
 note has been compared with the original volumes of reports, and the 
 citations have been corrected and verified. 
 
 To prosecuting ofiicers of the State and Federal Governments, and to 
 lawyers who make a specialty of Criminal Law, this volume will need 
 no other recommendations than the names of its compilers, Messrs. Har- 
 rison and Fisher, and the price at which it is bfiered. 
 
 A. H. 
 
 San Feanoisco Law Libeaey, ) 
 November, 1871. ) 
 
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Digitized by Microsoft® 
 
A. LIST 
 
 OP THE 
 
 Abbreviations Used and the Volumes Cited 
 
 IN THIS DIGEST. 
 
 A. & E Adolphiis & Ellis Queen's Bench. 
 
 Arn. & H Arnold &, Uodges Queen's Beneb. 
 
 B. & A Biiinewall & Alderson '. . . .King's Bench. 
 
 B. & Ad Barnewall & Adolplius King's J}..nch 
 
 B. & Barnewall i Cresswell King's Bench 
 
 B. C. C Bull Court Cnses — Lowndes & Maxwell. 
 
 B. C Hep Bail Court Reports — Saunders & Cole. . 
 
 B. & S Bc.'it & Smith Queen's Bench. 
 
 Bell's C. C Bell's Criminal Cases .Criminal Appeal. 
 
 Bing Bingham Common Pleas. 
 
 B. & P Bosanquet & Puller Common Pleas 
 
 B. L Botts' Poor Law 
 
 B. & B Broderip & Bingham .Common Pleas. 
 
 Bro. P. C Brown's Cases in Parliament House of Lords. 
 
 Burr Burrow King's Bench. 
 
 C Lord Chancellor 
 
 Cald Caldecott's Settlement Cases '. King's Bench, 
 
 Camp Campbell Nisi Prius. 
 
 Car. C. L Carrington's Criminal Law, 
 
 Car. & M Carrington & Marshman Nisi Prius. 
 
 C, & K Carrmgton & Kerwan Nisi Prius. 
 
 C. & P Carrington & Payne Nisi Prius. 
 
 Chit ; Cliitty ■ King's Bench. 
 
 C. &F Clark & Finnelly House of Lords, 
 
 C. B Common Bench ; Common Pleas. 
 
 C.B.N. S Common Bench, New Series ("Scott; . . . Queen's Bench, C. P. Ex. 
 
 C. L. R Common Law Reports, 1855-56 Queen's Bench, C.P. Ex. 
 
 Cowp Cowper King's Bench. 
 
 Cox Cox Chancery. 
 
 Cox C. C Cox Criminal Cases Crown & Crim. Appeal 
 
 C. & J Crompton & Jervis Exchequer. 
 
 C. & M Crompton & Meeson Exchequer. 
 
 D. & M Davison & Merivale Queen's Bench. 
 
 Dears. C. C Dearsly's Crown Cases Criminal Appeal. 
 
 Dear-i. & B. C. C Oearsly & Bell's Crown Cases Criminal Appeal. 
 
 Den. C. C Denison Ex Chamber & Crim. Ap 
 
 Dougl Douglas King's Bench. 
 
 D. P. C Dowling Practice Cases.. Queen's IJench, C. P. Ex. 
 
 D. N. S Dowling'.s New Scries Queen's Bench, C. P. Ex. 
 
 D. & L Dowling & Lowndes Queen's Bench, C. P. Ex. 
 
 D. & H Dowling & Itj land King's Bench. 
 
 D. & R.N. P. C... . Dowling & Ryland..-. Nisi Prius Cases. 
 
 Drew. & Sm Drewry & Smale "Vice Chancellors. 
 
 East East King's Bench. 
 
 East P. C East Pleas of the Crown. 
 
 El. & Bl Ellis & Blackburn Queen's Bench. 
 
 El., Bl. & El Ellis, Blackburn & Ellis Queen's Bench. 
 
 El. & El Ellis & Ellis. .,., ,,.^ Queen's Bench. 
 
 1 Digitized by Microsoft® 
 
viii LIST OF ABBREVIATIONS. 
 
 Esp Espinasse Nisi Priu'!. 
 
 Exch Excliequer Reports f Wclsby, H^& G ^ . Exchequer. 
 
 Exch. Cliam Excliequer Cliamber 
 
 F.&M Foster & Fiiilason Nisi Piiiis. 
 
 Gale Gale Exchequer. 
 
 G. & D Gale & Davison Exchequer. 
 
 Gow Gorr Nisi Prius. 
 
 H. Bl Henry Blackstone Common Pleas. 
 
 H. & R Harrison & Rutherford Common Pleas. 
 
 Holt Holt Nisi Prius. 
 
 H. & N Hurlstone & Norman ....Exchequer. 
 
 H. & W Hurlstone & Walmsley Exchequer. 
 
 Ir. C. L Irish Common Law, Series of 1867 • 
 
 Ir. C. L. R Irish Common Law Reports 
 
 Jur Jurist All the Courts. 
 
 Jur., N. S Jurist, New Series 
 
 Kay Kay Vice Chancellor. 
 
 K. & J Kay & Johnson Vice Chancellor. 
 
 Ld. Kon}-on Lord Kenyon's Notes of Cases King's Bench. 
 
 L. J. Chan Law Journal, New Scries Cliancery. 
 
 L. J. C. P Law Journal .'. Coimnion Pleas. 
 
 L. J. Exch Law Journal Exchequer. 
 
 L. J. M. C Law Journal Magistrate's Cases. 
 
 L. R. C. C Law Reports Crown Cases, Reserved, 
 
 L. T. N. S Law Times, New Series All the Courts. 
 
 Leach C. C Leach Crown Cases 
 
 L. & C. C. C Leigh & Cave, Crown Cases Exchequer Chamber. 
 
 Lewin C. C Lewin's Crown Cases Crown. 
 
 Lofft Lofft King's Bench. 
 
 L. M. & P Lowndes, Maxwell & Pollock B.iil Court. 
 
 M. & G Manning & Granger Common Pleas. 
 
 M. & W Meeson & Welsby Exchequer. 
 
 M. C. C Moody Crown Cases Exchequer Chamber. 
 
 M. &M Moody &Malkin Nisi Pnus. 
 
 M. & p Moore & I'ayne Common Pleas. 
 
 M. & Rob Moody & Robinson Nisi Prius. 
 
 M. & R Manning & Ryland King's Bench. 
 
 M. & S Maule & Selwyn King's Bench. 
 
 Marsh Marshall Conamon Pleas. 
 
 Moore J. B. Moore Common Pleas. 
 
 Moore P. C. C Moore's Privy Council Cases Privy Council. 
 
 Moore P. C. C. N. S . . Moore's Privy Council Cases, New Series 
 
 N. B, Bosanquet & Puller, New Reports Common Pleas. 
 
 N. & M Nevile & Manning King's Bench. 
 
 N. & P Nevile & Perry Queen's Bench. 
 
 New Scss. Cas Carrow, Hamerton & Allen All the Courts. 
 
 Peake Peake Ni.=i Priu<. 
 
 P. & D Perry & Davison Queen's Bench. 
 
 Price Price Exchequer. 
 
 Q. B Queen's Bench CAdolphus & Ellis, N. S.^ 
 
 Railw. Cas Railway Cases (NichoU, Hare and others) All the Courts. 
 
 Buss. C. & M Russell on Crimes and Misdemeanors. . 
 
 B. & B. C. C Russell & Ryan Crown Cases. 
 
 R. & M Ryan & Moody Nisi Prius. 
 
 Scott N. R Scott New Reports Common Pleas. 
 
 Selw. N. P Selwyn's Nisi Prius. 
 
 Sim. N. S Simon's New Series. Chancery. 
 
 Smith Smith King's Bench. 
 
 S;ark Starkie Nisi Prius. 
 
 Taunt Taunton Common Pleas. 
 
 T. R Term Reports, Durnsford & East King's Bench. 
 
 T. &M Temple & Mew Criminal Appeal. 
 
 Ves Vesey Chancery. 
 
 W. W. & D' " Willmore, WoUaston & Davison Queen's Bench. 
 
 W. W. & 11 Willmore, WoUaston & Hodges Queen's Bench. 
 
 Wils Wilson King's Bench & 0. P. 
 
 W. Bl Sir William Blackstone King's Bendi & C. P. 
 
 w- » ^'l!^M§^hrMtcro^oft® • • • ■^'' ''"' ^°"'^'^- 
 
TABLE OF CONTENTS. 
 
 3. 
 
 CRIMINAL INFORMATION. 
 I. When geanted. 
 
 1 . Genernl Principles, 1 . 
 
 2. Ex-njfli-io by the Attorney-Gen- 
 eral, 2. 
 
 For Libellous Publications, 2. 
 (a) What are, % 
 (h) Wlw entitled to, Z. 
 ( (• ) Necessari/ Affidavits, 4 . 
 (il) Proof of Publication, 4. 
 
 (e) Form and Validity of In- 
 formation, 5. 
 
 (f) Jusiifying Publication, 6, 
 ((;) Costs, 7. 
 
 Against Magistrates, 7. 
 
 (a) Grounds, 7. 
 
 (b) Timeof Application, 9. 
 
 ( c ) Notice of Application, 9. 
 Sending a Challenge, 10. 
 A()ainsl Parish Officers, 11. 
 Zn 0(/i(r Cases, 11. 
 Application for Information, 13. 
 TiHK?, 13. 
 Affidavits, 13. 
 Of/i(T Points of Practice, 15. 
 0.s(s, 16. 
 Conviction, 16. 
 
 5. 
 
 6. 
 
 7. 
 
 8. 
 
 9. 
 10. 
 II. 
 12. 
 13. 
 
 CRBIINAL LAW. 
 
 I. Persons capable of com- 
 mitting Chimes and Mis- 
 demeanors. 
 
 1. Agents, 17. 
 
 2. Insane Persons, 17. 
 
 3. Deaf and Dumb, 21. 
 
 4. Presumed Coercion of Wife, 22. 
 
 5. Drunhirds, 23. 
 
 6. Foreigners, 23. 
 
 7. Corporations, 24. 
 
 8. Infants, 24. 
 
 9. Peers, 24. 
 
 10. Persons under ^"^kWhMh jjw 
 
 n. Peincipals,_Accessoeies and 
 Abettors. 
 
 1. Principals, 25. 
 
 a. Accessories, 26. 
 
 3. .(4 ficftors, 28. 
 
 4. Trial, 28. 
 
 5. Indictment, 29. 
 
 6. Evidence, 30. 
 
 in. Abduction op Women and 
 Children. 
 
 1. Women, 31. 
 
 2. Children, 34. 
 
 3. Indictment, 3.5. 
 
 4. Evidence, 35. 
 
 IV. Adulteeation oe Food and 
 Deink. 
 
 1 . Selling Unwholesome Provisions, 35 
 
 2. Engrossing or Eegrating, 36; 
 
 V. Aeson and Burning. 
 
 1. Statutes, 36. 
 
 2. TAe Offence, 36. 
 
 3. Places of Divine Worship, 37. 
 
 4. Dwelling-houses with Persons there- 
 
 in, 38. 
 
 5. TFAat Houses or Buildings, 38. 
 
 6. Railway Stations and Buildings, 
 
 7. P«6/!C Buildings, 40. [40. 
 
 8. O^Aer Buildings, 40. 
 
 9. Property in Buildings, 41. 
 
 1 0. By Gunpowder and Explosive Sub- 
 
 stances, 41. 
 
 1 1 . Crbps, Slacks or Woods, 42. 
 
 12. Coal andjither Mines, 43. 
 
 13. Parties Indictable, 44. 
 
 14. Indictment, 44. 
 
 15. Evidence, 45. 
 
 VI. Assault and Batteet. 
 
 1. Common, 47. 
 
 2. Ort Clergymen or Ministers of Re- 
 
 ligion, 49. 
 
 M/croso/?® 
 
TABLE OF CONTENTS. 
 
 3. On lilagistrates or other Persons 
 
 ■presertimg Wrecks, 49. 
 
 4. On Pi ace and other Officers in Ex- 
 
 ecution of Dull/, 49. [52. 
 
 5. On Seamen, Keelmen or Casters, 
 
 6. On obstructing Sale of Grain or its 
 free Passage, 52. 
 
 7. Arising from Trade Combinations 
 or Conspiracies, 52. [52. 
 
 Occasioning actual Bodily harm, 
 Indictment arid Evidence, 53, 
 Punishment, 54. 
 Costs of Prosecution, 54. 
 Summary Conoictlons, 54. 
 
 (aj Statute, 54. [56. 
 
 (h) Complainant or Iriformant, 
 
 (c) Hearing and Certificate, 56. 
 
 (d) Aggravated upon Women and 
 Children, 57. 
 
 (c) Amounting to Felony, 58. 
 (f ) Fines, 58." 
 Indecent and with Intent to ravish 
 — See Kape, Abuse and De- 
 
 nr.EMENT OP Wo.MEN AND 
 
 Children. 
 With Intent to rob'— See Eou- 
 
 BEKT. 
 
 8. 
 
 9. 
 10. 
 11. 
 12. 
 
 13 
 
 14. 
 
 Vn. Bigamy. 
 
 The Offence, 59. 
 
 On Absence or Death of Parties, 
 Where Triable, 64. [62. 
 
 Indictment, 64. 
 
 1. 
 2. 
 3. 
 4. 
 5. Evidence and Witnesses, 65. 
 
 Viii. BuEGLAETAXDHotrSEBEEAK- 
 ING. 
 
 9. 
 10. 
 11. 
 12. 
 13. 
 14. 
 
 15, 
 16. 
 17. 
 
 Statutes, 66. 
 
 Breaking and Entering, 67. 
 
 Breaking out, 68. 
 
 By Lodgers, 69. 
 
 What IS Night-time, 69. 
 
 What is a Vwelling-houae, 69. 
 
 What is not a Dwelling-house, 7 1 . 
 
 Breaking into Churches and Places 
 
 of Divine Worship,- 72. 
 The Curtilage, 73. 
 Ownership, 74. 
 
 Intent, 75. [76. 
 
 Armed with Intent to breojc or alter. 
 Stealing in a Dwelling-house, 77. 
 In Schools, Shops, Warehouses or 
 
 Counting -houses, 78. 
 Partus indictable, 79. 
 Indictment, 79. 
 Eoidence and Trial, 81. 
 
 IX. Coining. 
 
 1. Statutes, 82. 
 
 2. Interjirttation, 82. 
 
 3. Whut is Coining, 83. 
 
 4. Colowlng, 85. 
 
 Impairing or Lightening Gold or 
 Silver Coin, 85. . ]86. 
 
 Buying or Selling Connterfeit Coin, 
 
 Exchanging Coin at higher than its 
 Value, 87. 
 
 Importing or Exporting Counterfeit 
 Coin, 87. 
 
 Defacing Gold, Silver or Copper 
 Coin, 87. 
 
 Testing Genuineness of Gold or 
 Silver Coin, 87. 
 
 Counterfeiting and uttering Copper 
 Coin, 88. 
 
 Counterfeiting and uttering Foreign 
 Coin. 89. 
 
 Implements of Coining. 90. 
 
 Unlawful Possession of Base Coin, 
 Filings or Clippings, 93. 
 
 Uttering. 94. 
 
 When Offence complete, 97. 
 
 E'-idenc-, 98. 
 
 Previous Conuiction, 98. 
 
 Validity of Convictions and Com- 
 mitments, 99. 
 
 Conveying Coining Tools or Coin 
 from the Mint without Authority, 
 99. 
 
 Power to seize Counterfeit Coin and 
 Coining Tools, 99. 
 
 Ap/nrehension of Offenders, 99. 
 
 Prosecution and Trial of Offen- 
 ders, 100. 
 
 Punishment of Offenders, 100. 
 
 Costs of Prosecution, lUO. 
 
 Actions against Persons acting in 
 pursuance of the Statute, 101. 
 
 Concealment oe the Bieth 
 OE Children. 
 
 1. The Offence, 101. 
 
 2. Indiitment, 104. 
 
 3. Eoidence, 105. 
 
 XL Conep:bact. 
 
 1. The Offence, 105. 
 
 2. Trade Conihinations, 107. 
 
 3. Parties Indictab'e, 109. 
 
 4. Indictment, 109. 
 
 5. Particulars of Overt Acts, 113. 
 
 6. Evidence, ll'S. 
 
 7. Trial and Verdict, \n. 
 
 8. New Trial, 118. 
 
 Xn. Duelling, 118. 
 
 XUE. Embezzlement by Cleeks 
 AND Seevants. 
 
 1. The Offence, 118. 
 
 2. Amountmi) to Larceny, or Einbez- 
 
 zlemcnt, 134. 
 
 3. Indictment, l.'J6. 
 
 4. Particulars of Charges, 137. 
 
 5. Evidence, 138. 
 
 6. 
 
 7. 
 
 8. 
 
 9. 
 
 10. 
 
 11. 
 
 12. 
 
 13. 
 14. 
 
 15. 
 
 16. 
 17. 
 18. 
 19. 
 
 20. 
 
 21. 
 
 22. 
 23, 
 
 24, 
 25, 
 26, 
 
 Digitized by Microsoft® 
 
TABLE OF CONTENTS. 
 
 XrV. Embezzlement and Feaitds 
 BY Agents, Bankees, 
 Trustees ANn Otiiees. 
 
 1. Agents and Bankers, 139. 
 
 2. Trustees, 142. 
 
 3. Dirtctors, 3li mhers and Officers of 
 
 Companies, 143. 
 
 4. Disclosure of Circnmstances, 144. 
 
 5. Jurisdiction of Quarter Sessions, 
 
 144. 
 
 6. By Traders. 
 
 XV. False PeiJtbnces and 
 
 Cheats. 
 
 1. Statutes, 145. 
 
 2. What are, 146. 
 
 (a) General Principles, 146. 
 
 (b) By means of False Orders, 
 
 151. 
 
 ( c ) By means of False Accounts, 
 
 152. 
 (rl) By means of Contracts, 153. 
 
 (e) As to the Quality of Articles 
 
 of Slerchandisc, 155. 
 
 ( f ) Astothi Quantity or Weight 
 
 of Articles of Merchandise, 
 
 156. [158. 
 
 (k) By Promises of Marriage, 
 (li) By means of Cheques, Bills 
 
 of Exchange or Promissory 
 
 Notes, 158. 
 (i) By passing off Flash or 
 
 Worthliss Bank Notes, 
 
 160. 
 ( j ) In respect of wh it Chattels or 
 
 Securities, 161. 
 
 3. Cheats, 162. 
 
 4. Inducing persons Inj Fraud to exe- 
 
 cuteor destroy Valuable Securities. 
 
 5. Amounting to Larceny, 163. [162. 
 
 6. Parties Indictable, 164. 
 
 7. Indictment, 164. 
 
 8. Evidence, 167. 
 
 9. Trial, 169. 
 
 10, Receiving Property cAtained by 
 False Pretences, 170. 
 
 XVI. FoECiBLE Entet and De- 
 tainee, 170. 
 
 XVn. FOEGEET. 
 
 1. Statu'es, 173. 
 
 2. What is Forgery, 1 74. 
 
 3. The Instrument, 176. 
 
 (a) Bank Notes, 176. 
 
 (h) Bills of Exchange and Pro- 
 
 missori) Notes, 182. 
 (c) Cheques, 188. 
 (A) Dorumenis purporting to be 
 
 made Abroad, 189 
 fe; Court liollf^ 
 
 ({) Debentures, 190. 
 
 (/) Deeds or Bmds, 1 90. 
 
 (n) Eoidential Instruments, \9l. 
 
 (\) Exchequer Bills or Bonds, 
 191. 
 
 Q) India Bonds, Stock or Cer- 
 tificates, 193. 
 
 (\) Marriage Licenses aAd Cer- 
 ti/icales, 193. 
 
 (\) Orders and< Proceedings of 
 M'igistrotes, 193. 
 
 (m) Records, Judicial and Cu- 
 riol Process, 194. 
 
 (n) Registers qfjiirths, Mar- ■ 
 riagesandiJenths, 196. 
 
 CoJ Registries of Dejds, 197. 
 
 fp) Seals of the Kingdom, 197. 
 
 (n) Stamps. 198. 
 
 (r) Trade Marks. 1 99. 
 
 (a) Transfer of Stuck or Shares, 
 199. 
 
 (t) Warrants, Orders, Under- 
 takings, Requests and Re- 
 ceipts fur Goods or for 
 Moneif, '201. 
 
 (a) Wills,'il2. 
 
 (\) Instruments o'haieise desig- 
 nated, 2\3. 
 
 4. Obtaining Property upon Forged 
 
 Instruments, 214. , 
 
 5. Parlies Indictable, 214. 
 
 6. Indictment, 2\ 5. 
 
 7. Allegation and Proof of Intent to 
 
 defraud, 220. 
 
 8. Jurisdiction to try, 222. 
 
 9. Election of Forgeries, 223. 
 
 10. Ultering,'223. 
 
 11. Evidence, 225. 
 
 12. Witne.'ises, 229. 
 
 13. Power to seize Forqed Instruments 
 
 or Implements, 229. 
 
 14. Punishment, 229. 
 
 1 5 Costs of Prosecution, 229. 
 
 XVIII. GOYEKNMENT Stoees, 229. 
 
 XIX. GtJNPOWDEE. 
 
 1 . Illegal Making, Use and Employ- 
 
 ment, 231. 
 
 2. Intent to murder by — See Mur- 
 
 der, AND OfFENSLS ACVIKST 
 
 THE Person. 
 
 3. Inflicting Injuries by — See MnR- 
 
 DER. 
 
 XX. Laeceny and Receiyees. 
 
 1 . What amounts to a Taking, 232. 
 
 (a) General Principles, 232. 
 
 (b) On Sale or Purchase of 
 Goods. 238. 
 
 (c) By a Trick or n Fraud, 240. 
 
 (d) On Breach of Contract to 
 sell. 243. 
 
 fzed by kcrOSOft&^ ^^ ^^^'''' of Property, 244. 
 
TABLE OF CONTENTS. 
 
 (f) From Bailees at Common 
 Law. 2U. [245. 
 
 (is) B(/ hiiileesat Common Law, 
 
 (li) Bij Pan-ning Property, 246. 
 
 \'\) Means of fucililating or de- 
 tecting Larceny, 247. 
 
 Q) In Case of Lost Property, 
 247. 
 
 (V.) Receniy of Possession of 
 Stolen Property, 2.50. 
 
 (\) Servants taking Master's 
 Corn for feeding Horses, 
 251. 
 
 (m) ByH'isbandandWife,251. 
 
 fnJS/j// Wff.'s Paramour, 252. 
 
 (o) By Clerks or Servants, 25-3. 
 
 (p) By Fraudulent Bailees, 258. 
 
 (q) liy PartifS in concert, 260. 
 
 2. Bij PerS'ns in the Queen's Service, 
 
 or try tlie Police, 260. 
 
 3. By Post Office Servants and Others 
 
 4. In a Uicellinghouse, 264. [261. 
 
 5. From the Person, 266. 
 
 6. By Teii'jnts or Lodgers, 267. 
 
 7. 2n Manufaj:turits, 267. 
 
 8. From. Mine.':, 268. 
 
 9. In Ships in Ports or on Navigable 
 
 Rive s and Wharves, 269. 
 
 10. Abroad or on tlie High Seas, 269. 
 
 11. Sttaliiig or destroying Written In- 
 
 struments, 270. 
 
 12. Stealing or destroying Trees, Shrubs, 
 
 Vegelahli s and Fences, 271. 
 
 13. Altem/ils to commit Larceny, 274. 
 
 14. Sulijeit matter of Larceny, 274. 
 
 15. Leiiersaiid (iovernment Documents, 
 
 16. Fixtures. 278. [277. 
 
 17. Cutle and othrr Animals, 279. 
 
 (a) Statutn, 279. 
 
 (h) HorKC Stealing, 279. 
 
 (f) Cattle, 281. 
 
 0\) Sheep Stealing, 281. 
 
 (u) Deer, 282. 
 
 (i) Div's or Pigeons, 284. 
 
 (<:) Fish, 284. 
 
 (iij Dogs, 286. [287. 
 
 (i) Birds and other Animals, 
 
 Q) Carcases or Skins, 288. 
 
 18. Jiie Ownership, 289. 
 
 19. liceioers of Stolen Property, 294. 
 
 (a) Statutory Prorisions, 294. 
 (h) Who are Receivers, 295. 
 (c) Joint Receivers, 296. 
 (i\) Husband and Wife, 291. 
 
 20. Indictm'Tit for Stealing and Re- 
 ceivinn, 298. 
 
 (a) Sleding, 298. 
 
 (Ii) Siealivg arid Receiving, 301 . 
 
 21. ,/uri.idiction to try, 303. 
 
 22. Erideiice, 3(14. 
 
 23. Punishment, 307. 
 
 24. Rf^fiintion and Recovery of Stolen 
 Property, 307. 
 
 XXI. Malicious Ix.iuet to Pbop- 
 EKTY, Cattle axd othek 
 Animals. 
 
 1. Houses or Buildings, by Tenants, 
 
 310. 
 
 2. Manufactures and Materials, 310. 
 
 3. Machinery, 312. 
 
 4. Mines, 3i3. 
 
 5. Sea and River Banks, 31 5. 
 
 6. Ships and Sea Signals, 315. 
 
 7. Fish Ponds, 317. 
 
 8. Trees, Shrubs, Fences and Vege- 
 
 tai'les, 318. 
 
 9. HopbinHg, 320. 
 
 10. Works of^Art, 320. 
 
 11. Indictment, 321. 
 
 12. Amount of Injury, Z2\. 
 
 13. Witnesses, Si.\.' 
 
 14. Killing or Maiming Cattle or other 
 
 Animals, 322. 
 
 15. Railways and Telegraphs — See 
 
 XXX. Kailwavs, 425. 
 
 XXn. Misdemeanors. 
 
 1 . What Indictable in general, 323. 
 
 2. Attempt to commit, 324. 
 
 XXin. MuEDEE, Manslaughtee, 
 and Offenses against 
 TUE Person. 
 
 1. Murder, 326. 
 
 2. Manslaughter. 3.34. 
 
 3. Abroad and at Sea, 346. 
 
 4. Principles, Accessories and Abet- 
 
 tors, 349. 
 
 5. Conspiring, or Soliciting to commit 
 Murder, 350. 
 
 6. Attempts to Murdtr and Inflicting 
 grievous Bodily Harm, 350. 
 (&) By Administering Poison, 
 
 350. 
 
 (h) With Intent to procure Mis- 
 carriage or Abortion, 353. 
 
 (c) By Shooiing, Wounding, 
 Drowning, Suffocating or 
 Strangling, 354. 
 
 (H) Inflicting Grievous Bodily 
 Harm, 358. 
 
 (e) By Resisting or Preventing 
 the Apprehension or De- 
 tainer of Persons, 363. 
 
 ff) By Means of Gunpowder or 
 other Explosive Substan- 
 ces, 364. 
 
 (.S) ^y setting Fire to or casting 
 away Ships, 365. 
 
 (hj Preventing Rescue from 
 Shipwreck, 365. 
 
 Digitized by Microsoft® 
 
TABLE OF CONTENTS. 
 
 Xlll 
 
 fi) Bfi olher Means, 365. 
 
 7. Sprinfl Guns, 366. 
 
 8. llltreating Children, Apprentices, 
 
 Servants, Idiots, ana helpless 
 
 Perxons, 366. 
 
 («) The Offence, 366. 
 
 (h) Indictment, 370. 
 
 (e) Ei)idence,31\. 
 
 9. Injurin;/ Persons by Wanton or 
 
 Furious Driving, 371. 
 
 10. Indictment for Murder and Man- 
 
 slaufihtfr, '37\. 
 
 11. Declarations in Articulo Mortis, 
 
 375. 
 
 12. Eridence and Witnesses, 380. 
 
 13. Trial, Judgment, and Execution 
 
 in Murder, S82. 
 
 14. Punishment for Manslaughter, 383. 
 
 XXIV. Night Poaching and Or- 
 fensbs relating to 
 Game, Haebs and Rab- 
 bits. 
 
 1. The Offence, 384. 
 
 2. Limitation of Time for Prosecu- 
 
 tion. 389. 
 
 3. Indictment, 390. 
 
 4. Evidence, 391. 
 
 5. Convi t onsond Commitments,392. 
 
 6. Hares or Rabbits, 392. 
 
 XXV. Obscenitt and Inde- 
 cency. , 
 
 Obscene Prints and Pictures, 393. 
 Indecent Exposure, 393. 
 
 XXVI. Perjuky, False Oaths AND 
 False Declarations. ■ 
 
 FaU Oaths, 395. 
 On Afliduinis, 398. 
 Before .Jitstices, 400. 
 Before Surrogates, 402. 
 Before Arbitrators, 402. 
 Indictment and Information, 403. 
 Amendment of Variances, 410. 
 
 8. Evidence, 411. 
 
 9. Pionfbi/ Judyes' Notesof Evidence 
 414. 
 
 10. Proof of Particular Averments, 
 
 11. Proof of Indictment, i16. [414. 
 Wilnesses and Corroborative Evi- 
 dence, 416. 
 
 J'rial, 418. 
 
 False Declarations, 419. 
 fa J Customs, 419. 
 (b) On Rigistralion of Voters 
 andut Parliamentary Elec- 
 tions, 419. 
 ((•) Corpora'e, 420. 
 (i]) Bejore Magistrates, 420. 
 (e) On He.qistralion of Births, 
 Deaths or Marriages, 421 . 
 Sedilious Practices and Unlauful 
 ' Oaths, 422 
 
 1. 
 2. 
 3. 
 4. 
 5. 
 6. 
 7. 
 
 12. 
 
 13. 
 14. 
 
 XXVII. Personation. 
 
 1. Stockholders, 423. 
 
 2. Seamen and Soldiers, 423. 
 
 3. Fofers, 424. 
 
 XXVm. Poisoning. 
 
 1 . Placing Poison in Plantations, 424. 
 
 2. Murder by — See MuftDKtt. 
 
 3. Admini>tei ing with Inleni to Mur- 
 
 d-^r — .i'ee MuiiOKit. 
 
 4. To procure Abortion — See MuB- 
 
 XXIX. Prize Fights, 425. 
 
 XXX. Railways and Tele- 
 graphs. 
 
 1. Endangering Safety of Persons on 
 
 Railways, 425. 
 
 2. OhitrucUng Engines or Carriages 
 
 on, 427. 
 
 3. Injuring Telegraphs, 427. 
 
 XXXI. Rape, Abuse and Defile- 
 
 ment op Women and 
 Children. 
 
 1. Rape, 428. f430. 
 ,(a) Who capable "f Committing, 
 
 (\i) Upon u'liiim Committed, 430. 
 (i:) Accomplishment or Comple- 
 tion, vn. 
 (A) Indiclment. 431. 
 (k) Evidence. 432. 
 O; Where Triable, 435. 
 
 2. Abuse of Children, 435. 
 
 3. Defilement, 438. 
 
 XXXII. Riots and Unlawful 
 Assemblies. 
 
 1 . Nature and Character, 439. 
 
 2. Illegal Tnining and Drilling, iW. 
 
 3. Duties of ike Magislraci/, 440. 
 
 4. Aiding and Assisting the Consta- 
 
 bulary, 44 1 . 
 
 5. Indictment, 441. 
 
 6. Evidence, 442. 
 
 7. Injuries to Property 
 
 XXXm. Robbery. 
 
 [442. 
 Rioters, 
 
 15. 
 
 1. The Offence, 445. 
 
 2. Garolting, 448. 
 
 3. Indictment, 44J. 
 
 4. Evidence, 449. 
 
 5. Assault with fnfent to Rob, 450. 
 
 6. Punishment of Whipping, 452. 
 
 XXXIV. Sanitary Laws, 452. 
 
 Digitized by Microsoft® 
 
TABLE OF CONTENTS. 
 
 XXXV. Sea, OFFBNCEa at, 453. 
 XXXVI. Sedition, 454. 
 XXXVII. Sepulture. 
 
 1. Desecration, 454. 
 
 XXXVIII. Sodomy and Bestial- 
 ity, 455. 
 
 XXXIX. Suicides and Self 
 Maiming, 457. 
 
 XL. Threatening Letters 
 AND Menaces. 
 
 1. Statutes, 457. 
 
 2. Demanilhig Money of Valuables 
 
 with Menaces, 457. 
 
 3. Thre itming to accuse of Crime, or 
 
 with Intent to Extort. 460. 
 
 4. Letters threatening to Burn or, De- 
 
 stro/i, 463. 
 
 5. Ij>t'ers tlireatening to Murder, 464 
 
 6. Threatening to sue for Penalties 
 
 4 64. 
 
 7. Threatenimi to Publish Defamatory 
 
 Matter, 464. 
 
 8. Persons Indictnhle, 465. 
 
 9. Inillctment, 465. 
 10. Ecidence, 466. 
 
 XLI. Treason. 
 
 1 . The Offence, 467. 
 
 2. Indictment, Lists of Witnesses, 
 
 Jurt/, Endence, Trial and Judg- 
 ment, 468. 
 
 XLn. Treasure Trove, 472. 
 XLin. Peoceduee and Practice. 
 
 1. Indictment, 473. 
 
 (a) For what it lies, 473. 
 
 (b) Disobeying Orders of Justices 
 
 and Others, 474. ' 
 
 (<•) Quashing, 475. 
 
 (d^ Tiial when Indictment is not 
 good, 477. 
 
 (2) Finding, 477. 
 
 (f) I g miring, 477. 
 
 (s) Previous binding of Prose- 
 cutor, 477. 
 
 (h) Copy of Indictment, 480. 
 
 (\) Venue, 481. 
 
 (\) Caption, 486. 
 
 (k) Several Counts, 487. 
 
 (\) As to the Allegations, 487. 
 
 (m) Description of the parly ac- 
 cused, 489. 
 
 (n) Allegations of Time and 
 
 Place, 489. 
 (u) Name of Party Injured, 
 
 490. 
 fpj Description of Property or 
 
 Instrument, 492. 
 (q) Value, 493. 
 (t) Contra Pucem and Contra 
 
 Formam Statuti, 494. 
 (s) Of joining Offences and 
 
 Electing, 495. 
 ( t) Time arid Mode of raising 
 
 Formal Objections, 497. 
 (u) Amendment. 498. 
 (\) Nolle Prosequi, .^02. 
 
 2. Central Criminal Court, 502. 
 
 Ca ) Jurisdiction, 502. 
 
 3. Tnal, 503. 
 
 (a) Jurisdiction, 503. 
 
 (b) Arrtiignment and Plea, 504. 
 ft'3 Withdniwing Plea of Not 
 
 Guilty, 505, 
 
 (|^) Standing in the Dock, 505. 
 
 (^ej Heading Indictment, 505. 
 
 (f) Sepanite Trial. 506. 
 
 fgj I^'ff/'t 'if Acquittal on Indict- 
 ment nf Several, 506. 
 
 (h) Poilponing or Adjourning, 
 506. 
 
 (i) Illniss of Prisoner during 
 Trial, 508. 
 
 Q) Trial un a Verdict in a Civil 
 Case, 508. 
 
 fk; Tend, ring Bill of Excep- 
 tions, 
 
 4. Pleas in Abatement, 509. 
 
 5. Pleas of Autrejois Convict and 
 
 Acquit, 509. 
 
 6. Demurrers, 514. 
 
 7. Recognizancf-s, 515. 
 
 8. Commissions and Gaol Delivery, 
 
 517. 
 
 9. Restoring Money found on Prison- 
 
 ers, 518. 
 
 10. Contempt of Court, 51 9. 
 
 11. Affidavits', bl9. 
 
 XLFV. Of Juries and Chai- 
 
 LENGES. 
 
 1. Grand, 529. 
 
 2. Jurymen, 521. 
 
 3. Challenges, 523. 
 
 4. Vieu), 527. 
 
 5. Loi'king-up, 527. 
 
 6. Discharge of, 527. 
 
 7. Jury Process, 528. 
 
 XLV. Counsel. 
 
 1 . Appearance and Defence by, 529. 
 
 2. Addressing the Jury, 530. 
 8. liight of 'Riphj, 532. 
 
 4. Summing up Evidence, 533. 
 
 Digitized by Microsoft® 
 
TABLE OF CONTENTS. 
 
 XV 
 
 XLVI. Evidence. 
 
 1. Confessions and Admissions, 535. 
 
 2. Depiisitions, 550. 
 
 (a) Mode of taking, 550. 
 0>) Returning, 555. 
 (c) Illniss, Death, Insanity or 
 Absence of [Vilnesses, 557. 
 (i[) Examination on, 559. 
 (e) Copies, 561. 
 
 3. Fresnmptions or Probabilites of 
 
 Guilt, 562. 
 
 4. Accomplices, 562. 
 
 5. Gocernment S/iies, 564. 
 
 6. Competency of Witnesses, 565. 
 
 7. Cumpflling Attendance, 568. 
 
 8. Swearing, 568. 
 
 9. Ordering to leave Court, 570. 
 
 10. A'umeson Backof Indictment,570. 
 
 11. Delirations in Articulo Mortis, 
 
 571. 
 
 12. Ernmining and Cross-examining 
 
 Witnesses, 571. 
 
 13. Declining to answer, 5T2. 
 
 14. Evidence of Charactei; 573. 
 
 15. Evidenceof Identity, 574. 
 
 16. Prieileged Communic itions, 574. 
 
 17. Evidence of other simil ir Offences, 
 
 18. Precious Conviction, 576. [576. 
 
 19. Maps or Plans, 578. 
 
 20. Letters, 578. 
 
 21. Proof of Handwriting, 579. 
 
 22. Proif of Documents by attesting 
 
 Witnisses, 579. 
 
 23. Notice to produce, 579. 
 
 24. Production and Inspection of Doc- 
 
 uments, 580. 
 
 25. 0« o(Aer Potnfs, 580. 
 
 XLVn. Verdict, 580. 
 XLVm. New Trial, 581. 
 XLIX; Judgment AND Sentence. 
 
 1. Form and Entry generally, 585. 
 
 2. At Nin Prim, 588. 
 
 3. Bringing up before Court of Queen's 
 
 Bench, 589. 
 
 4. >ln«i< o/; 590. 
 
 5. RecersdJ,,bW. 
 
 L. Eeroe and Appeal. 
 
 1 . ^ri-or, 590. 
 
 2. fKAtn an Appeal lies, 594. 
 
 3. Court <)/■ Criminal Appeal, 594. 
 
 4. 2J«/es and Practice, 595. 
 
 LI. Punishment. 
 
 1. Penal Servitude, 597. 
 
 2. Etturning therefrom, 598. 
 
 LIL Escape, Rescue AND Prison 
 Breach, GOO. 
 
 LHI. Pardon, GOl. 
 
 LIK. Apprehension AND Arrest 
 OF Offenders. 
 
 1. 5ta«u«es, 602. 
 
 2. By Constables and Private Indi- 
 
 viduals, 602. 
 
 3. Warrant of Justices, 605. 
 
 4. Bench Warrants, 606. 
 
 LV. Search Warrants, 606. 
 LVL Articles op Peace. 
 
 1. When exhibited generally, do'. 
 
 2. Justices, 608. 
 
 3. On passing Sentence, C09. 
 
 4. Piactice, 609. 
 
 LVn. Bail. 
 
 1. Felony, 610. 
 
 2. 7n Misdemeanors and other Cases, 
 
 611. • 
 
 LVm. Costs. 
 
 1. Expenses of Prosecution, 613. 
 
 2. Rewards for extraordinary Exer- 
 
 tions and Diligence, 615. 
 
 3. In other Case^, 615. 
 
 4. j4/'tcr Removal by Certiorari, 615. 
 
 5. Practice, 619. 
 
 6. Taxation, 621. 
 
 7. Enforcing Payment, 621. 
 
 LIX. Extradition Treaties. 
 
 1. In general, 622. 
 
 2. >FiM America, 623. 
 
 Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. 
 
 Adams v. Moore, Apprehension and Arrest, 603. 
 Allen V. England, Forcible Entry, 171. 
 Allen V. Wright, Apprehension and Arrest, 603. 
 AUejne v. Reg., Error and Appeal, 592, 593. 
 Allison, ex parte. Assault and Battery, 57. 
 Anon., Assaults, 48, 50, 53, 58. 
 Anon., Bail, 612. 
 Anon., Coining, 86. 
 Anon., Crim. Inf., 1, 2, 11, 12, 13. 
 Anon., Evidence, 552. 
 Anon., False Pretences, 158. 
 Anon., Forgery, 223, 229. 
 Anon., Government Stores, 230. 
 Anon., Judgment, etc., 585. 
 Anon., Juries, etc., 519, 527. 
 Anon., Larceny, 236. 
 Anon., Murder, etc., 346, 369. 
 Anon., Perjury, 414. 
 Anon., Persons Capable of Crime, 22. 
 Anon., Procedure and Practice, 473, 485, 495, 503, 517. 
 Anon., Rape, etc., 433. 
 Arnold v. Dimsdale, Assault and Battery, 59. 
 Ashton's Case, Murder, etc., 376. 
 Ashton or Aston, In re. Articles of the Peace, 608. 
 Athea's Case, Poaching, 384. 
 Atkinson v. Rex, Judgment, etc., 585. 
 Att. Gen. V. Parsons, Juries, etc., 526. 
 Att. Gen. V. Ray, Crim. Inf., 2. 
 Att. Gen. V. Smith, Crim. Inf., 2. 
 Attwood V. Joliffe, Forcible Entry, 172. 
 Aylett V. Rex, Procedure and Practice, 486. 
 Barronet, In re. Bail, 610. 
 Barthelemy, In re. Bail, 610. 
 Beauclerk, Ex parte, Crim. Inf., 4. 
 Beckwith v. Philby, Apprehension and Arrest, 602. 
 Bengough V. Rossiter, Procedure and Practice, 516. 
 Bermondsey Vestry v. Brown, Procedure and Practice, 469. 
 Blackburn v. Hargreave, Evidence, 668. 
 Blake v. Barnard; Assault and Battery, 47. 
 Booth V. Hanley, Apprehension and Arrest, 602. 
 Booth V. Hanley, Assault and Battery, 48. 
 Fish. Dig.— B. cygy^y^ed by Microsoft® 
 
TABLE OF CASES, DIGESTED. 
 
 Bounty Case, Procedure and Practice, 506. 
 Bourne v. Rex, Error and Appeal, 591. 
 Bowditch V. Balchin, Apprehension and Arrest, 604. 
 Brery q. t. v. Levy, Particular Offences, 622. 
 Brittain v. Bank of London, Forgery, 188. 
 Brooks V. Warwick, Forgery, 177, 229. 
 Broome v. Reg., Procedure and Practice, 486, 490. 
 Brown v. Reg., Procedure and Practice, 498. 
 Browne v. Cumming, Procedure and Practice, 480. 
 Bullock V. Dodds, Punishment, 598. 
 Burling v. Read, Forcible Entry, 171. 
 Burnby v. Rollitt, Adulteration of Food, 36. 
 Butler V. Turley, Apprehension and Arrest, 604. 
 Butt V. Conant, Apprehension and Arrest, 605. 
 Caddy v. Barlow, Procedure and Practice, 480. 
 Campbell v. Reg., Juries, etc., 528. 
 Campbell v. Reg., Judgment, etc., 586. 
 Campbell v. Reg., Larceny, 265. 
 Carpenter V. Mason, Crim. Lif, 11. 
 Cartwright v. Green, Larceny, 236. 
 Cattell V. L-eson, Evidence, 565. 
 Caudle v. Seymour, Apprehension and Arrest, 605. 
 Chaddock v. Wilbraham, Assault and Battery, 58. 
 Champney's Case, Perjury, 416. 
 Church, Li re. Pardon, 602. 
 Clark V. Newsam, Forgery, 207, 210. 
 Collins V. Thomas, Forcible Entry, 170. 
 Conolly's Case, Coining, 96. 
 Conoloy's Case, Persons capable of Crimes, 22. 
 ■Cook V. Field, Procedure and Practice, 508. 
 Coombes v. Queen's Proctor, Larceny, 294. 
 Costar V. Hetherington, Assault and Battery, 57. 
 Coupey V. Henley, Apprehension and Arrest, 602. 
 Cowles V. Dunbar, Apprehension and Arrest, 603. 
 ■Crawshay, Ex parte, Crim. Inf., 2. 
 Cripps V. Hartnoll, Bail, 613. 
 ■Crozier v. Cundy, Search Warrants, 606. 
 Cureton v. Reg., Poaching, 391. 
 Dale, Ex parte, Crim. Inf., 2. 
 Dalrymple v. Dalrymple, Bigamy, 61. 
 Davies v. Rex, Poaching, 390. 
 Davis's C. L., Coining, 98. 
 Davis V. Russell, Apprehension and Arrest, 603 
 Davy, Ex parte. Forcible Entry, 171. 
 Denby's Case, Juries, etc., 521. 
 
 Derecourt v. Corbishley, Apprehension and Arrest, 605 
 Dixon's Case, Forgery, 222. 
 Duchess of Kingston's Case, Bigamy, 51. 
 Dugdale v. Reg., Error and Appeal, 594. 
 Dugdale v. Reg., Misdemeanor, 324. 
 Dugdale v. Reg., Obscenity, etc., 393. 
 Dunn V. Reg., Articles of the Peace, 609. 
 Dunn V. Reg., Judgment, etc., 588. 
 Durkin's Case, Costs, 615. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. 
 
 Eduljee Byramjee, Ex parte, Error and Appeal, 593. 
 
 Elmsley's Case, Malicious Injury, 322. 
 
 Elsee V, Smith, Search Warrants, 606. 
 
 Elsmore v. St. Briav els, Arson, 39. 
 
 Elworthy v. Bird, Procedure and Practice, 502. 
 
 Entick V. Carrington, Search Warrants, 607, 
 
 Errington's Case, Muivier, etc., 335, 379. 
 
 Errington's Case, Procedure and Practice, 483. 
 
 Evans v. Philips, Procedure and Practice, 480. 
 
 Ex parte Chapman, Crim. Inf., 8, 
 
 Ex parte Overton, Perjury, 395. 
 
 Ex parte Tanner, Crim. Inf., 13. 
 
 Fentiman, In re, Crim. Inf., 8. 
 
 Fielder v. Marshall, Forgery, 182. 
 
 Fletcher v. Calthorp, Poaching, 392. 
 
 Fletcher, Ex parte. Evidence, 561. 
 
 Flower v. Shaw, Forgery, 174, 189. 
 
 Forde v. Skinner, Assault and Battery, 47. 
 
 Fox V. Gaunt, Apprehension and Arrest, 603. 
 
 Galliard v. Laxton, Apprehension and Arrest, 605, 
 
 Gilford, Lord, Ex parte. Articles of the Peace, 609. 
 
 Crogarty v. Reg., Riots, 440. 
 
 Goldsmith's Case, Murder, etc., 354. 
 
 Gough V. Davies, Pardon, 602. 
 
 Graham's Case, Bigamy, 61. 
 
 Gray v. Reg., Juries, etc., 524. 
 
 ■Gregory v. Reg., Judgment, etc., 586. 
 
 Hamilton v. Reg., False Pretences, 165. 
 
 Hancock v. Somes, Assault and Battery, 56. 
 
 Hanway v. Boultbee, Apprehension and Arrest, 604. 
 
 Harding v. King, Assault and Battery, 57. 
 
 Hardy v. Murphy, Apprehensions and Arrest, 602. 
 
 Harrison's' Case, Coining, 94. 
 
 Harrison v. Hodgson, Assault and Battery, 48. 
 
 Harrod v. Worship, Malicious Injury, 315. 
 
 Hartley v. Hindmarsh, Assault and Battery, 57. 
 
 Haylocke v. Sparke, Articles of the Peace, 608. 
 
 Hays V. Bryant, Murder, etc., 370. 
 
 Haishall's Case. Murder, etc., 361. 
 
 Hermann v. Seneschal, Coining, 101. 
 
 Hillary v. Gay, Forcible Entry, 171. 
 
 Hilton's Case, Manslaughter, 343. 
 
 Hilton V. Eokersley, Conspiracy, 108. 
 
 Hobbs V. Brandscomb, Apprehension and Arrest, 602. 
 
 Hodge's Case, Murder, etc., 380. 
 
 Hollo way v. Reg., Judgment, etc., 587. 
 
 Holloway v. Reg., Escape, Rescue, etc., 601. 
 
 Holloway v. Reg., Procedure and Practice, 487, 
 
 Holt V. Reg., Judgment, etc., 590. 
 
 Howard v. Reg., Error and Appeal, 592. 
 
 Hoye v. Bush, Murder, etc. 340. 
 
 Hulse, Ex parte. Articles of the Peace, 607. 
 
 Humphrys, Ex parte. Evidence, 561. 
 
 Itnason v. Cope, Assault and Battery, 50. 
 
 Digitized by Microsoft® 
 
XX TABLE OF CASES, DIGESTED. 
 
 In re Headley, (Lord), Juries, etc., 519. 
 In re Strahan, Paul & Bates, Embezzlement, 144. 
 In re Wetton, Procedure and Practice, 516. 
 In re Young, Procedure and Practice, 516. 
 Isaacs V. Brand, Apprehension and Arrest, 604. 
 Jenning's Case, Murder, etc., 360. 
 Jones V. Orchard, Bail, 613. 
 Keen v. Reg., Procedure and Practice, 516, 
 King. V. Reg., Conspiracy, etc.. 111. 
 King V. Reg., Judgment, etc., 587, 590, 588. 
 King V. Reg., Perjury, 400. 
 Kinnersley v. Orpe, Larceny, 286. 
 Knowlden v. Reg., Procedure and Practice, 478. 
 
 Latham V. Reg., Conspiracy, 112, 117; Error and Appeal, 591; Pro- 
 cedure and Practice, 487. 
 Lavey v. Reg., Perjury, 404. 
 Lawler v. Kelly, Assault and Battery, 57. 
 Lawrence v. Hedger, Apprehension and Arrest, 6Q3. 
 Leach v. Simpson, Evidence, 555. 
 Lee, Ex parte, Crim. Inf., 9. 
 Legatt V. Tollervey, Procedure and Practice, 480. 
 Leverson v. Reg., Procedure and Practice, 518. 
 Levi V. Levi, Conspiracy, 106. 
 Levy V. Edwards, Apprehension and Arrest, 602. 
 Lewen's Case, Cobts, 614. 
 Linford v. Fitzroy, Bail, 612. 
 Lisle V. Brown, Larceny, 286. 
 Lolley's Case, Bigamy, 59. 
 Lord, Ex parte, Bail, 612. 
 Lord Vane's Case, Articles of the Peace, 607. 
 Lowe V. Horwarth, Assault and Battery, 54. 
 Lyde v. Russell, Larceny, 279. 
 Macnaghten's Case, Persons capable of Crimes, 18. 
 Maden v. Catanach, Evidence, 569. 
 Mann v. Owen, Government Stores, 231. 
 
 Mansell v. Reg., Error and Appeal, 594 ; Juries, etc., 525, 528. 
 Marlborough, (Duke) Ex parte, Crim. Inf , 9, 12. 
 Marsh V. Loader, Persons capable of Crimes, 24. 
 Martin v. Reg., Punishment, 599. 
 Mayhew v. Parker, Apprehension and Arrest, 605. 
 Mead V. Young, Forgery, 185. 
 Merry v. Green, Larceny, 236. 
 Meyiiell's Case, Evidence, 535. 
 Mildrone's Case, Evidence, 569. 
 Milner v. MacLean, Forcible Entry, 170. 
 Money v. Leach, Apprehension and Arrest, 605. 
 Moriarty v. Brooks, Murder, etc., 359. 
 Morris v. Wise, Apprehension and Arrest, 604. 
 Morrison v. Kelly, Procedure and Practice, 480. 
 
 Mulcahy v. Reg., Conspiracy, 107 ; Juries, etc., 520, 526 ; Treason 472 
 Munster, Ex parte, Crim. Inf., 16. j , . 
 
 Mure V. Kay, Apprehension and Arrest, 603. 
 
 Murray V Reg., Bigamy, 64; Error and Appeal, 592; Judgment, etc. 
 Oo6, ' 
 
 Digitized by Microsoft© 
 
TABLE OP CASES, DIGESTED. 
 
 Musgrave v. Medex, Perjury, 398. 
 
 Nash V. Reg., Procedure and Practice, 489. 
 
 Newton v. Harland, Forcible Entry, 171. 
 
 Newton, In re, Error and Appeal, 592. 
 
 Nicholson's Case, Riots, 442. 
 
 Nicholson v. Hardwick, Apprehension and Arrest, 603. 
 
 Nisbett, Ex parte, Apprehension and Arrest, 605. 
 
 O'Brien v. Reg., Procedure and Practice, 517. 
 
 O'Connell v. Keg., Articles of the Peace, 609 ; Conspiracy, 107, 112, 
 
 117 ; Counsel, 529, 532 ; Judgment, etc., 585 : Procedure and 
 
 Practice, 509 ; Verdict, 581. 
 Omealy v. Newell, Perjury, 398. 
 O'Neill V. Reg., Juries, etc., 529. 
 Overton v. Reg., Perjury, 404. 
 Parker v. Green, Evidence, 565. 
 Patteson's Case, Counsel, 532. 
 Pearson's Case, Murder, etc., 330. 
 Pearson's Case, Persons capable of Crimes, 13. 
 Pearson v. M'Gowran, False Pretences, 146, 170. 
 Peat's Case, Bigamy, 65 ; Evidence, 567. 
 Peddel v. Rutter, Peijury, 419. 
 Perkin's Case, Forgery, 223. 
 Peto V. Reynolds, Forgery, 182. 
 
 Pettamberdass V. Thackoorseydass, Adulteration of Food, 36. 
 Phillips V. Wimbm-n, Evidence, 547. 
 Pickering v. Rudd, Poaching, 384. 
 Pigott, In re. Error and Appeal, 592. 
 Pollen V. Brewer, Forcible Entry, 171. 
 Porter v. Cooper, Perjury, 416. 
 Price V. Seeley, Apprehension and Arrest, 604. 
 Prickett v. Gratrex, Articles of the Peace, 608. 
 Prideaux v. Arthur, Crim. Inf., 10. 
 Prosser v. Rowe, Procedure and Practice, 509. 
 Purcell V. M'Namara, Perjury, 420. 
 Raffety's Case, Robbery, 449. 
 Rawlins v. Ellis, Apprehension and Arrest, 606. 
 Reeve v. Wood, Evidence, 558. 
 Reg. V. Abbott, False Pretences, 154. 
 Reg. V. Abraham, Evidence, 550 ; Larceny, 304. 
 Reg. V. Absolon, Conspiracy, 1 07. 
 Reg. V. Adams, Larceny, 241, 307. 
 Reg. V. Adams, Procedure and Practice, 494, 514. 
 Reg. V. Adamson, False Pretences, 168. 
 Reg. V. Adey, Embezzlement, 128. 
 Reg. V. Ady, False Pretences, 147. 
 Reg. V. Ahearne, Conspiracy, 117. 
 Reg. V. Albert, Procedure and Practice, 481. 
 Reg. V. Aldridge, Forgery, 227 ; Larceny, 280. 
 Reg. V. Alison, Murder, etc., 334. 
 Reg. V. Allan, Escape, Rescue, etc., 601. 
 Reg. V. Allday, Forgery, 199 ; Juries, etc., 521. 
 Reg. V. Allen, Murder, etc., 333 ; Procedure and Practice, 502 ; Rape, 
 
 etc., 431, 432 ; Sea, Offences at, 454; Sodomy, etc., 456. 
 Reg. V. Alleyne, ErroiLand,Appeal„593. ^^ 
 
TABLE OF CASES, DIGESTED. 
 
 Reg. V. Almey, Escape, 601. 
 
 Reg. V. Alsop, Peijury, 410. 
 
 Reg. V. Ambury, Punisliment, 600. 
 
 Reg. V. Amos, Arson, 39. 
 
 Reg. V. Anderson, Evidence, 553, 559 ; Forgery, 206 ; Procedure and 
 Practice, 503 ; Sea, Offences at, 453. 
 
 Reg. V. Andrews, Bail, 610 ; Burglary, 80. 
 
 Reg. V. Archer, False Pretences, 148. 
 
 Reg. V. Archer, Murder, etc., 337. 
 
 Reg. V. Arlett, Procedure and Practice, 517. 
 
 Reg. V. Avman, Embezzlement, 128. 
 
 Reg. V. Arnall, Evidence, 544. 
 
 Reg. V. Arnold, Evidence, 645, 656. 
 
 Reg. V. Arrowsmith, Crim. Inf., 12. 
 
 Reg. V. Arundel, Evidence, 567. 
 
 Reg. V. Ashby, Forgery, 189. 
 
 Reg. V. Ashley, Larceny, 265. 
 
 Reg. V. Ashman, Murder, etc., 361. 
 
 Reg. V. Aston, Embezzlement, 124, 138. 
 
 Reg. V. Atkinson, Embezzlement, 128; Forgery, 210 ; Larceny, 291. 
 
 Reg. V. Austin, Evidence, 559. 
 
 Reg. V. Austin, Poaching, 389. 
 
 Reg. V. Austin, Procedure and Practice, 477. 
 
 Reg. V. Autey, Forgery, 207. 
 Reg. V. Avery, Forgery, 212. 
 Reg. V. Avery, Larceny, 253. 
 Reg. V. Aylett, Evidence, 562. 
 
 Reg. V. Azzopardi, Murder, etc., 348 ; Procedure and Practice, 503. 
 Reg. V. Badger, Bail, 611 ; Crim. Inf., 8, 9. 
 Reg. V. Bailey, Arson, 46 ; Burglary, 77. 
 Reg. V. Baillie, Abduction of Women, etc., 33. 
 Reg. V. Bain, Burglary, 78 ; Misdemeanors, 325. 
 Reg. V. Baker, Burglary, 73 ; Murder, etc., 357. 
 Reg. V. Baldock, Arson, 43. 
 Reg. V. Baldry, Evidence, 544. 
 Reg. V. Baldwin, Crim. Inf., 4. 
 Reg. V. Ball, False Pretences, 156 ; Perjury, 403. 
 Reg. V. Bannen, Coining, 91. 
 Reg. V. Barber, Counsel, 530 ; Forgery, 191, 213. 
 Reg. V. Barker, Arson, 45. 
 Reg. V. Barley, Evidence, 570. 
 Reg. V. Barnard Castle, Costs, 617. 
 
 Reg. V. Barnes, Costs, 615 ; Embezzlement, 125 ; False Pretences 153 • 
 Larceny, 255, 289 ; Perjury, 414. ' 
 
 Reg. V. Barnet, Evidence, 560. 
 Reg. V. Barnett, Robbery, 450. 
 •Reg. V. Barratt, Abduction of Women, 33, 35. 
 Reg. V. Barrett, Costs, 615 ; Murder, etc., 343. 
 Reg. V. Barron, Counsel, 533 ; Rape, etc., 430. 
 Reg. V. Barry, Conspiracy, 115; Procedure and Practice, 497. 
 Reg. V. Bartholomew, Perjury, 409. 
 Reg. V. Bartlett, Counsel, 529 ; Forgery, 182. 
 Reg. V. Barton, Persons capable of Crimes, 20. 
 Reg. V. Bass, Pi-oceduig^^gg^g^c^ygp^^o/^® 
 
TABLE OF CASES, DIGESTED. 
 
 Reg. V. Bateman, Evidence, 552. 
 
 Reg. V. Bates, Concealment of Births, 105 ;. Evidence, 552 ; False Pre- 
 tences, 147. 
 
 Reg. V. Batstone, Arson, 41. 
 
 Reg. V. Batt, Riots, 443. 
 
 Reg. V. Batty, Embezzlement, 124. 
 
 Reg. V. Bay ley, Embezzlement, 127. 
 
 Reg. y. BayUs, Evidence, 569. 
 
 Reg. V. Beale, Rape, etc., 436. 
 
 Reg. V. Beaman, Larceny, 255. 
 
 Reg. V. Beard, Counsel, 531 ; Forgery, 186. 
 
 Reg. V. Beardmore, Evidence, 560. 
 
 Reg. V. Beardsall, Forgery, 186. 
 
 Reg. V. Beaumont, Embezzlement, 120. 
 
 Reg. V. Beckwith, Counsel, 533. 
 
 Reg. V. Beecham, Larceny, 242. 
 
 Reg. V. Beere, Juries, etc., 523. 
 
 Reg. V. Beeston, Evidence, 555. 
 
 Reg. V. Beeton, Larceny, 301. 
 
 Reg. V. Belton, Counsel, 530. 
 
 Reg. V. Benge, Murder, etc., 344. 
 
 Reg. V. Bennett, Murder, etc., 336 ; Perjury, 409 ; Rape, 436. 
 
 Reg. V. Bent, Perjury, 420. 
 
 Reg. V. Berens, Counsel, 534. ' 
 
 Reg. V. Bernard, Counsel, 532 ; Error and Appeal, 595 ; Evidence, 565 ; 
 Murder, etc., 350, 364 ; Procedure and Practice, 504, 518. 
 
 Reg. V. Berriman, Concealment of Births, 103, 105. 
 
 Reg. V. Berry, Larceny, 253 ; Perjury, 401. 
 
 Reg. V. Bertrand, Evidence, 576 ; New Trial, 582. 
 
 Reg. V. Best, Particular Offences, 622. 
 
 Reg. V. Betts, Larceny, 256. 
 
 Reg. V. Benzant, Costs, 616. 
 
 Reg. V. Bickerstaff, Larceny, 261. 
 
 Reg. V. Birch, Robbery, 445, 450. 
 
 Reg. V. Birchall, Murder, etc., 337, 344. 
 
 Reg. V. Bird, Burglary, 67, 78 ; Concealments of Births, 103 ; Error and 
 Appeal, 595 ; Procedure and Practice, 510. 
 
 Reg. V. Birkett, Evidence, 564. 
 
 Reg. V. Birmingham and Gloucester Railway Company, Persons capable 
 of Crimes, 23 ; Procedure and Practice, 514; 
 
 Reg. V. Bishop, Costs, 618 ; Perjury, 399. 
 
 Reg. V. Biss, Murder, etc., 375. 
 
 Reg. V. Biswell, Abduction of Women, etc., 33. 
 
 Rex V. Bitton, Procedure and Practice, 504. 
 
 Reg. V. Bjornsen, Murder, etc., 348. 
 
 Reg. V. Blackburn, Counsel, 532 ; Embezzlement, 132 ; Evidence, 540, 
 574 ; Murder, etc., 349 ; Procedure and Practice, 506. 
 
 Reg. V. Blake, Conspiracy, 111, 116. 
 
 Reg. V. Blakeman, Juries, etc., 524. 
 
 Reg. V. Bleasdale, Larceny, 269 ; Persons capable of Crimes, 17. 
 
 Reg. V. Blenkinsop, Forgery, 182. 
 
 Reg. V. Bloomfield, False Pretences, 148. 
 
 Reg. V. Boardman, Forgery, 218. 
 
 Reg. V. Boden, Robbery, 451. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. 
 
 Reg. V. Bodkin, Evidence, 543. 
 
 Reg. T. Bolam, Procedure and Practice, 508. 
 
 Reg. v. Bond, Evidence, 554 j Larceny, 299 ; Procedure and Practice, 493. 
 
 Reg. V. Boober, Coining, 92. 
 
 Reg. V. Boreliam, Forgery, 189. 
 
 Reg. V. Borron, Crim. Lif., 7. 
 
 Reg. V. Boswell, Evidence, 589. 
 
 Reg. V. Botfield, New Trial, 583. 
 
 Reg. V. Boucher, Counsel, 531 ; Evidence, 579 ; Malicions Injury, 320. 
 
 Reg. V. Boult, Forgery, 175. 
 
 Reg. V. Boulter, Perjuiy, 417. 
 
 Reg. V. Boulton, False Pretences, 161. 
 
 Reg. V. Bourdon, Evidence, 578 ; Judgment, etc., 587. 
 
 Reg. V. Bowden, Larceny, 265. 
 
 Reg. V. Bowen, Bigamy, 62; Costs, 620; False Pretences, 164; Larce- 
 ny, 271 ; Murder, etc., 360 ; Procedure and Pi-aetice, 507. 
 
 Reg. V. Bowers or Bower, Embezzlement, 126. 
 
 Reg. V. Bowler, Peijury, 419. 
 
 Reg. V. Bowray, Railways, etc., 426. 
 
 Reg. V. Bowser, Forcible Entry, 172. 
 
 Reg. V. Box, Larceny, 239. 
 
 Reg. V. Boyes, Evidence, 562, 573. 
 
 Reg. V. Boynes, Perjury, 420. 
 
 Reg. V. Brackenridge, Forgery, 181. 
 
 Reg. V. Brackett, Larceny, 256. 
 
 Reg. V. Bradford, Forgery, 221 ; Railways, etc., 427. 
 
 Reg. V. Braithwaite, Peijury. 418. 
 
 Reg. V. Bramley, Larceny, 241. 
 
 Reg. V. Braun, Procedure and Practice, 497. 
 
 Reg. V. Brawn, Bigamy, 60. 
 
 Reg. V. Bray, Procedure and Practice, 478, 489. 
 
 Reg. V. Braynell, Threatening Letters, 462. 
 
 Reg. V. Bren, Embezzlement, 131. 
 
 Reg. V. Brenan, Punishment, 599. 
 
 Reg. V. Brettell, Larceny, 305. 
 
 Reg. V. Bridgman, Procedure and Practice, 515. 
 
 Reg. V. Briggs, Bigamy, 63 ; Counsel, 532 ; Evidence, 576. 
 
 Reg. V. Brimilow, Persons capable of Crimes, 24. 
 
 Reg. V. Brisby, Procedure and Practice, 475. 
 
 Reg. V. Brittain, Conspiracy, 116 ; Treason, 468. 
 
 Reg. V. Britton, Robbery, 450. 
 
 Reg. V. Brooke, Poaching, 389. 
 
 Reg. V. Brookes, Burglary, 80 ; Procedure and Practice, 490. 
 
 Reg. V. Brooks, False Pretences, 154; Larceny, 244, 297. 
 
 Reg. V. Broome, Error and Appeal, 593. 
 
 Reg. V. Brown, Arson, 41 ; Conspiracy, 107, 113, 115; Evidence, 572, 
 574, 580; False Pretences, 165; Forgery, 226; Larceny, 242- 
 Peijury, 421 ; Prize Fights, 425 ; Procedure and Practice, 505! 
 514 ; Riots, 441. ' 
 
 Reg. V. Browne, Procedure and Practice, 485. 
 
 Reg. V. Browning, Perjury, 421. 
 
 Reg. V. Bruce, Murder, etc., 338. 
 
 Reg. V. Brumby, Larceny, 274. 
 
 Reg. V. Brummitt, Error and Appeal, 597 ; Larceny, 279. 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. 
 
 Reg. V. Bryan, False Pretences, 154, 155. 
 
 Reg. V. Bubb, Murder, etc., 367. 
 
 Reg. V. Buchanan, Procedure and Practice, 473. 
 
 Reg. V. Bull, Evidence, 571 ; Murder, etc., 326, 345. 
 
 Reg. V. Bullock, Conspiracy, 110 ; Malicious Injury,-323. 
 
 Reg. V. Bulmer, False Pretences, 149, 163. 
 
 Reg. V. Bunce, Larceny, 242. 
 
 Reg. V. Bunkall, Larceny, 259. 
 
 Reg. V. Burbon, New Trial, 582. 
 
 Reg. V. Burgon, False Pretences, 148. 
 
 Reg. V. Burgess, Larceny, 290 ; Murder, etc., 334 ; Suicides, 457. 
 
 Reg. V. Burke, Juries, etc., 526 ; Treason, 468. 
 
 Reg. V. Burnby, Procedure and Practice, 475. 
 
 Reg. V. Burnsides. False Pretences, 152, 169. 
 
 Reg. V. Burraston, Perjury, 406. 
 
 Reg. V. Burrell, Abduction of Women, etc., 34 ; Error and Appeal, 597. 
 
 Reg. V. Burridge, Threatening Letters, 463. 
 
 Reg. V. Burrows, Counsel, 531 ; False Pretences, 151. 
 
 Reg. V. Burton, Counsel, 532 ; Larceny, 250, 305 ; Persons capable of 
 
 Crimes, 19. 
 Reg. V. Butcher, Counsel, 531, 533; False Pretences, 152. 
 Reg. V. Butler, Evidence, 543 ; Larceny, 255. 
 Reg. V. Butterfield, Burglary, 79. 
 Reg. V. Butterwick, Costs, 614; Forgery, 182. 
 Reg. V. Button, Conspiracy, 107; Misdemeanors, 323. 
 Reg. V. Byrne, Coining, 84; False Pretences, 150. 
 Reg. V. Cain, Larceny, 292. 
 Reg. V. Caldecott, Costs, 617. 
 
 Reg. V. Caley, Larceny, 292 ; Procedure and Practice, 492. 
 Reg. V. Calvert, Murder, etc., 362. 
 Reg. V. Campbell, Murder, etc., 374. 
 Reg. V. Camplin, Rape, etc., 429. 
 Reg. V. Canwell, Assault and Battery, 48. 
 Reg. V. Carlile, Obscenity, etc,, 398. 
 Reg. V. Carlile, Conspiracy, 107. 
 
 Reg. V. Carpenter, Embezzlement, 130; Evidence, 549. 
 Reg. V. Carr, Perjury, 413. 
 
 Reg. V. Carruthers, Threatening Letters, 459, 466. 
 Reg. V. Carter, Burglary, 78 ; Forgery, 205, Judgment, etc., 585. 
 Reg. V. Casbolt, Poaching, 390. 
 
 Reg. V. Case, Rape, etc., 430 ; Assault and Battery, 48. 
 Reg. V. Caspar, Principals, etc., 30. 
 Reg. V. Cassidy, Evidence, 570. 
 Reg. V. Castle, Forgeiy, 195. 
 Reg. V. Caudwell, New Trial, 584. 
 Reg. V. Cavendish, Procedure and Practice, 486. 
 Reg. V. Chadwick, Bjgamy, 60 ; Forgery, 174. / 
 
 Reg. V. Challicomb, New Trial, 582. 
 Reg. V. Chalmers, Threatening Letters, 463. 
 Reg. V. Chamberlain, Mui-der, etc., 346. 
 Reg. V. Chambers, Evidence, 535. 
 Reg. V. Chandler, Murder, etc., 367. 
 Reg. V. Chapman, Bail, 611 ; Embezzlement, 119 ; Misdemeanor, 324 ; 
 
 Murder, etc., 333; Peijury, 399, 402 ; Procedure and Practice, 507. 
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xxvi TABLE OF CASES, DIGESTED. 
 
 Reg, V. Chappie, Principals, etc., 28. 
 
 Reg. V. Charlesworth, Juries, etc., 527 ; Procedure and Practice, 511. 
 
 Reg. V. Cliater, Embezzlement, 128. 
 
 Reg. V. Cheafor, Larceny, 284, 301. 
 
 Reg. V. Cheeseman, Larceny, 274. 
 
 Reg. V. Cheverton, Evidence, 543 ; Murder, etc., 380. 
 
 Reg. V. Chidley, Evidence, 552. 
 
 Reg. V. Child, Forcible Entry, 171 ; Perjury, 411, 414. 
 
 Reg. V. Christian, Perjury, 399, 415 ; Riots, 444. 
 
 Reg. V. Christie, Counsel, 533. 
 
 Reg. V. Christopher, Evidence, 550, 561 ; Larceny, 248. 
 
 Reg. V. Clapton, Embezzlement, 139. 
 
 Reg. V. Clark, Bigamy, CO ; Error and Appeal, 595 ; Evidence, 577. 
 
 Reg. V. Clarke, Burglary, 80 ; Concealments of Births, 104 ; Evidence, 
 558 ; Murder, etc., 377 ; Rape, etc., 429, 434. 
 
 Reg. v. Clay, Rape, etc., 434. 
 
 Reg. V. Clayton, Arson, 44. 
 
 Reg. V. Cleary, Murder, etc., 377, 381. 
 
 Reg. V. Clegg, Perjury, 398. 
 
 Reg. V. Clegs, Malicious Injury, 311. 
 
 Reg. V. Clements, Evidence, 557. 
 
 Reg. V. Clifford, Forgery, 186; Persons capable of Crimes, 17. 
 
 Reg. V. Closs, False Pretences, 162; Forgery, 175. 
 
 Reg. V. Clouter, Procedure and Practice, 505. 
 
 Reg. V. Clube, Evidence, 580. 
 
 Reg. V. Cluderay, Murder, etc., 351. 
 
 Reg. V. Cluderoy, Error and Appeal, 597. 
 
 Reg. V. Cobden, Burglary, 81 ; Evidence, 576. 
 
 Reg. V. Cockburn, Evidence, 559 ; Rape, etc., 431. 
 
 Reg. V. Coghlan, Threatening Letters, 461. 
 
 Reg. V. Cohen, Government Stores, 231 ; Larceny, 229, 252. 
 
 Reg. V. Cole, Larceny, 244. 
 
 Reg. V. Coley, Evidence, 537. 
 Reg. V. Coelho, Forgery, 208. 
 Reg. V. Colley, Arson, 39. 
 Reg. V. Collier, Evidence, 541. 
 
 Reg. V. Collins, 174, 218; Larceny, 274; Misdemeanors, 325. 
 Reg. V. Colmer, Concealment of Births, 102 ; Evidence, 553. 
 Reg. V. Colucci, Evidence, 580; False Pretences, 169. . 
 Reg. V. Compbell, Murder, 374. 
 Reg. V. Conde, Murder, etc., 368. 
 Reg. V. Conming, Evidence, 553, 559. 
 Reg. V. Connell, Coining, 84; Murder, etc., 351. 
 Reg. V. Connor, Arson, 38, 39. 
 Reg. V. Conwell, Assault and Battery, 48. 
 Reg. V. Cook, Costs, 614. 
 
 Reg. V.Cooke, False Pretences, 170, 221, 225, 226- Forgery 186- 
 
 Juries, etc,, 520 ; Larceny, 234; Perjury, 401. ' 
 
 Reg. V Cooper, Forgery, 210 ; Larceny, 250 ; Misdemeanors, 323 • 
 
 Murder, etc., 369 ; Riots, 442 ; Threatening Letters, 467. 
 Reg. V. Coots, Burglary, 82. 
 Reg. V. Copeland, False Pretences, 158. 
 Reg. V. Copley, Counsel, 534. 
 Reg. V. Corey, Larceny, 288. 
 
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TABLE OP CASES, DIGESTED. xxvii 
 
 i 
 Reg. V. Cornish, Larceny, 245. 
 Reg. V. Coulson, False Pretences, 159, 160 ; Procedure and Practice, 
 
 493. 
 Reg. V. Court, Railways, etc., 426. 
 Reg. V. Courtenay, Burglary, 75. 
 Reg. V. Courtney, Perjury, 397. 
 Reg. V. Courvoisier, Counsel, 531. 
 
 Reg. V. Cox, Larceny, 300, 307 ; Murder, etc., 357, 361 ; Perjury, 421. 
 Reg. V. Coxhead, Concealments of Births, 103, 104. 
 Reg. V. Crab, False Pretences, 150. 
 Reg. V. Cracknell, Threatening Letters, 461. 
 Reg. V. Craddock, Larceny, 303 ; Verdict, 581. 
 Reg. V. Cradock, Bigamy, 62. 
 Reg. V. Crane, Procedure and Practice, 517. 
 
 Reg. V. Crawford, Apprehension and Arrest, 606 ; Murder, etc., 36j5. 
 Reg. V. Crawley, Adulteration of Food, 36. 
 Reg. V. Crawshaw, Verdict, 581. 
 Reg. V. Creed, Embezzlement, 119. 
 Reg. V. Crespin, Assault and Battery, 53 ; Procedure and Practice, 488, 
 
 491. 
 Reg. T. Crick, Murder, etc., 345. 
 Reg. V. Crisham, Rape, etc., 432. 
 Reg. V. Crispin, Procedure and Practice, 491. 
 Reg. V. Crittenden, Larceny, 250. 
 Reg. V. Crofts, Evidence, etc., 578. 
 Reg. V. Crook, Murder, etc., 345. 
 Reg. V. Cropper, Juries, etc., 521. 
 Reg. V. Cross, Bigamy, 63. 
 Reg. V. Crossley, Procedure and Practice, 474. 
 Reg. V. Crouch, Evidence, 579. 
 Reg. V. Croucher, Evidence, 558. 
 Reg. V. Crowe, Sedition, 454. 
 Reg. V. Crowhurst, Larceny, 250. 
 Reg. V. Crumpton, Robbery, 446 ; Murder, etc., 371. 
 Reg. V. Cruse, Murder, etc., 355 ; Principals, etc., 28. 
 Reg. V. Cryer, Larceny, 304. 
 Reg. V. Cuddy, Murder, etc., 334. 
 Reg. V. Cullen, Bigamy, 63 ; Forgery, 219. 
 Reg. V. Cunningham, Procedure and Practice, 482. 
 Regi V. Curgenwen, Bigamy, 63. 
 Reg. V. Curnock, Poaching, 390. 
 Reg. V. Curry, Forgery, 182. 
 Reg. V. Curtis, Evidence, 560. 
 R6g. V. Cutts, Perjury, 408. 
 
 Reg. V. Dodson, Apprehension and Arrest, 604 ; Murder, etc., 351. 
 Reg. V. Dale, Murder, etc., 351. 
 Reg. V. Dalloway, Murder, etc., 341. 
 Reg. V. Daly, Particular Offences, 622. 
 Reg. V. Dane, Bigamy, 63. 
 Reg T. Danger, False Pretences, 163. 
 Reg. V. Dant, Murder, etc., 342. 
 Reg. V. Dark, False Pretences, 154. 
 Reg. V. Dartnell, Larceny, 257. 
 
 Reg. V. Davies, Arson, 44; Assault and Battery, 51; Forgery, 218; 
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xxviii TABLE OF CASES, DIGESTED. 
 
 Larceny, 259, 264 ; Rape, etc., 432 ; Persons capable of Crimes, 
 
 20, 21 ; Procedure and Practice, 491. 
 Reg. V. Davis, Burglary, 67 ; False Pretences, 131 ; Larceny, 278. 
 Reg. V. Davison, Juries, etc., 527. 
 Reg. V. Davitt, Treason, 472. 
 Reg. V. Dawson, Forgery, 207. 
 Reg. V. Day, Evidence, 543, 558 ; Rape, etc., 436. 
 Reg. v. Dean, Conspiracy, 110 ; Rape, etc., 434. 
 Reg. V. Deane, Juries, etc., 527. 
 Reg. V. Deaves, Larceny, 249. 
 Reg. V. Debruiel, Larceny, 303. 
 Reg. V. Deer, Larceny, 307. 
 Reg. V. Deering, Larceny, 257. 
 Reg. V. Denmour, Larceny, 260. 
 Reg. V. Dennis, Evidence, 571. 
 Reg. V. Denslow, Evidence, 567. 
 
 Reg. v.. Dent, False Pretences, 166, 168 ; Procedure and Practice, 491. 
 Reg. V. Denton, Conspiracy, 117. 
 
 Reg. V. Deny or Totness, (Justices), Assault and Battery, 56. 
 Reg. V. Desmond, Conspiracy, 117. 
 Reg. V. De Vidil, Evidence, 551. 
 Reg. V. Dewitt, Perjury, 422. 
 Reg. v. Dibley, Larceny, 304. 
 Reg. V. Dignam, Judgment, etc., 589. 
 Reg. V. Dingley, Evidence, 539, 551. 
 Reg. V. Dilworth, Assault and Battery, 48. 
 Reg. V. Diprose, Embezzlement, 132. 
 Reg. V. Dixon, Embezzlement, 123 ; Forgery, 220, 248. 
 Reg. V. Dobson, Costs, 617, 621. 
 Reg. V. Dodd, Forgery, 176. 
 Reg. V. Doddridge, Poaching, 387. 
 Reg. V. Dodson, Malicious Injury, 318. 
 Reg. V. Dodsworth, Perjury, 419. 
 Reg. V. Doherty, Crim. Inf., 10. 
 
 Reg. V. Dolan, Error and Appeal, 519 ; Larceny, 295. 
 Reg. V. Donovan, Murder, etc., 361. 
 Reg. v. Doody, Suicides, 457. 
 
 Reg. V. Dossett, Evidence, 576 ; Arson, 46 ; Procedure and Practice, 496. 
 Reg. V. Douglas, Evidence, 580 ; Procedure and Practice, 505, 515. 
 Reg. V. Dowey, False Pretences, 161. 
 Reg. V. Dowing, Murder, etc., 373. 
 
 Reg. V. DowUng, Juries, etc., 523 ; Procedure and Practice, 505. 
 Reg. V. Downey, Apprehension and Arrest, 606. 
 Reg. V. Downham, Evidence, 579. 
 Reg. V. Dowse, Counsel, 534. 
 Reg. V. Downing, Murder, etc., 373. 
 Reg. V. Dovey, Larceny, 297. 
 Reg. V. Dring, Larceny, 297. 
 Reg. V. Driscoll, Assault and Battery, 47. 
 Reg. V. Drury, Evidence, 567 ; Procedure and Practice, 510. 
 Reg. V. Duifield, Conspiracy, 108. 
 
 Reg. V. Duffy, Crim. Inf., 7 ; Procedure and Pi-actice, 509 ; Sedition, 454. 
 Reg. V. Dunboyne (Lord), Perjury, 422. 
 Reg. V. Dungey, Rape, etc.^ 432. 
 
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TABLE OF CASES, DIGESTED. xxix 
 
 Reg. V. Dunn, Articles of the Peace, 607, 609 ; Costs, 619 ; Error and 
 Appeal, 593; Perjury, 399, 416; Procedure and Practice, 477, 
 486, 502. 
 
 Reg. V. Dunne, Evidence, 563. 
 
 Reg. V. Dunning, Costs, 615. 
 
 Reg. V. Dwerryhouse, Persons capable of Crime, 20. 
 
 Reg.v. Dyke, Evidence, 564. 
 
 Reg. V. Eagle, Murder, etc., 338. 
 
 Reg. V. Eagleton, False Pretences, 157. 
 
 Reg. V. East Stoke, Costs, 618. 
 
 Reg. V. Eaton, Sodomy, etc., 456. 
 
 Reg. V. Edgell, Arson, 37. 
 
 Reg. V. Edmundson, Larceny, 268. 
 
 Reg. V. Edwards, Evidence, 570 ; Murder, etc., 371. 
 
 Reg. V. Elliott, Obscenity, etc., 394. 
 
 Reg. V. Ellis, Bigamy, 63 ; Forgery, 203 ; Murder, etc., 345, 373 : Per- 
 jury, 419. 
 
 Reg. V. Elrington, Assault and Battery, 56. 
 
 Reg. V. Elworthy, Evidence, 580 ; Perjury, 414. 
 
 Reg. V. Emmons, Punishment, 600. 
 
 Reg. V. England, Arson, 39. 
 
 Reg. V. Epps, Forgery, 185. 
 
 Reg. V. Esdaile, Conspiracy, 107, 113, 115. 
 
 Reg. V. Essex, Embezzlement, 139 ; False Pretences, 159 ; Larceny, 254. 
 
 Reg. V. Entrehman, Evidence, 569. 
 
 Reg. V. Evans, Burglary, 73 ; Forgery, 195 ; False Pretences, 154, 160 ; 
 Larceny, 251 ; Murder, etc., 374. 
 
 Reg. V. Ewington, Perjury, 396. 
 
 Reg. V. Exall^ Burglary, 81. 
 
 Reg. V. Eyre, Rape, etc., 433. 
 
 Reg. V. Faderman, Error and Appeal, 595 ; Procedure and Practice, 
 515 ; Sedition, 454. 
 
 Reg. V. Fairlie, Perjuiy, 402. 
 
 Reg. V. Fallon, Principals, etc., 27. 
 
 Reg. V. Fanning, Bigamy, 61. 
 
 Reg. V. Farler, Evidence, 564. 
 
 Reg. V. Farley, Evidence, 575 ; Forgery, 213. 
 
 Reg. V. Farnhan, Concealment of Births, 102. 
 
 Reg. V. Farr, Larceny, 306. 
 
 Reg. V. Farrell, Obscenity, etc., 394. 
 
 Reg. V. Farrow, Murder, etc., 354. 
 
 Reg. V. Featherstone, Error and Appeal, 596 ; Larceny, 253. 
 
 Reg. V. Feist, Sepulture, 455. 
 
 Reg. V. Fenwick, Procedure and Practice, 490, 514. 
 
 Reg. V. Ferguson, Procedure and Practice, 487, 496. 
 
 Reg. V. Fielding, Poaching, 391. 
 
 Reg. V. Finney, Punishment, 600. 
 
 Reg. V. Firth, Larceny, 234. 
 
 Reg. V. Fisher, Malicious Injury, 312 ; Murder, etc., 327 ; Principals, 
 etc., 29. 
 
 Reg. V. Fitch, Forgery, 210 ; Larceny, 253. 
 
 Reg. V. Fitchie, Forgery, 212, 225. 
 
 Reg. V. J'laherty, Bigamy, 65. 
 
 Reg. V. Flanagan, Larceny, 257. 
 
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TABLE OF CASES, DIGESTED. 
 
 Reg. V. Fletcher, Arson, 38 ; Embezzlement, 142 ; Rape, etc., 428, 429, 
 431. 
 
 Reg. V. Fogarty, Counsel, .529. 
 
 Reg. V. Folkes, Rape, etc., 436. 
 
 Reg. V. Fontaine Moreau, Assault and Battery, 53. 
 
 Reg. V. Forbes, Assault and Battery, 51. 
 
 Reg. V. Ford,' Evidence, 559. 
 
 Reg. V. Forester, Murder, etc., 377. 
 
 Reg. V. Forster, Coining, 96. 
 
 Reg. V. Poster, Juries, etc., 527. 
 
 Reg. V. Foulkes, Costs, 619. 
 
 Reg. V. Pox, Judgment, etc., 588. 
 _ Reg. V. Prampton, Embezzlement, 122, 135 ; Larceny, 235, 296. 
 
 Reg. V. France, Evidence, 556. 
 
 Reg. V. Frances, Persons capable of Crimes, 18. 
 
 Reg. V. Frankland, Embezzlement, 128. 
 
 Reg. V. Franklin, False Pretences, 147. 
 
 Reg. V. Franz, Murder, etc., 380. 
 
 Reg. V. Prazier, Abduction of Women, etc., 33. 
 
 Reg. T. Freakley, Procedure and Practice, 516. 
 
 Reg. V. French, Procedure and Practice, 484. 
 
 Reg. V. Fretwell, Murder, etc., 331, 354, 356. 
 
 Reg. V. Frompton, Embezzlement, 122, 135 ; Larceny, 235, 296. 
 
 Reg. V. Frost, Juries, etc., 523 ; Procedure and Practice, 492, 501 • 
 
 Treason, 468, 469, 470, 471. 
 Reg. V. Frowen, Burglary, 75, 80. 
 Reg. V. Fry, False Pretences, 149. 
 Reg. V. Fuidge, Procedure and Practice, 479. 
 Reg. V. Fullarton, Procedure and Practice, 500. 
 Reg. V. Furguson, Robbery, 452. 
 Reg. V. Fussell, Sedition, 454. 
 Reg. V. Gadbury, Evidence, 571. 
 Reg. V. Gallant, Procedure and Practice, 482. 
 Reg. V. Gallears, Larceny, 300. 
 Reg. V. Gamble, Murder, etc., 357. 
 Reg. V. Gamlen, Persons capable of Crimes, 23. 
 Reg. V. Garbett, Evidence, 572.- 
 Reg. V. Gardener, Larceny, 263. 
 Reg. V. Gardiner, Perjury, 406, 413. 
 Reg. V. Gardner, Costs, 614; Counsel, 531, 533 ; False Pretences, 154, 
 
 162; Larceny, 249; Murder, etc., 337. 
 Reg. V. Garland, Judgment, etc., 588. 
 Reg. V. Garner, Evidence, 549 ; Murder, etc., 331. 
 Reg. v. Garnham, Larceny, 288 ; Poaching, 387. 
 Reg. V. Garrett, False Pretences, 146. 
 Reg. V. Gate Fulford, Error and Appeal, 597. 
 Reg. V. Gaylor, Principals, etc., 27 ; Murder, etc., 336. 
 Reg. V. Gazard, Evidence, 566; Perjury, 417. 
 Reg. V. Geach, Juries, etc., 524 ; Forgery 186 
 Reg. V. Geering, Murder, etc., 330. ' 
 
 Reg. V. George, Concealment of Births, 104; Evidence, 567. 
 Keg. V. Gerber, Evidence, 566. 
 Reg. V. Gerrish, Coining, 97. 
 Reg. V. Gibbon, Perjury, 397. 
 
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TABLE OF CASES, DIGESTED. . xxxi 
 
 Reg. V. Gibbs, Embezzlement, 121. 
 
 Reg. V. Gibson, Embezzlement, 127 ; Evidence, 571 ; Poaching, 389. 
 
 Reg. V. Giddins, Robbery, 449. 
 
 Reg. V. Gilbert, Burglary, 74. 
 
 Reg. V. Gilchrist, Forgery, 207 ; Larceny, 263. 
 
 Reg. V. Giles, False Pretences, 147. 
 
 Reg. V. Gill, Embezzlement, 120. 
 
 Reg. V. Gillings, Larceny, 264. 
 
 Reg. V. Giorgetti, Juries, etc., 523. 
 
 Reg. V. Gisson, Procedure and Practice, 510. 
 
 Reg. V. Glass, Larceny, 261. 
 
 Reg. V. Glover, Embezzlement, 125. 
 
 Reg. V. Glyde, Larceny, 249. 
 
 Reg. V. Goddard, Perjury, 408. 
 
 Reg. V. Godfrey, False Pretences, 167; Larceny, 277; Procedure and 
 Practice, 489. 
 
 Reg. V. Golde, Embezzlement, 142. 
 
 Reg. V. Goldthorpe, Concealment of Births, 102. 
 
 Reg. V. Gomm, Embezzlement, 142. 
 
 Reg. V. Gompertz, 112, 116, 118 ; New Trial, 583 ; Procedure and Prac- 
 tice, 481. 
 
 Reg. V. Gooch, Larceny, 278. 
 
 Reg. V. Good, Persons capable of Crimes, 22. 
 
 Reg. V. Goodbody, Larceny, 243. 
 
 Reg. V. Goode, Concealment of Births, 103 ; Larceny, 255 ; Persons ca- 
 pable of Crimes, 20. 
 
 Reg. V. Goodenough, Embezzlement, 135. 
 
 Reg. V.' Goodfellow, Perjury, 404, 415 ; Poaching, 391. 
 
 Reg. V. Goodhall or Goodchild, Murder, etc., 354. 
 
 Reg. V. Gooding, Bigamy, 64. 
 
 Reg. V. Goodman, Perjury, 420. 
 
 Reg. V. Goodwin, Coining, 99. 
 
 Reg. V. Gorbutt, Embezzlement, 135. 
 
 Reg. V. Gordon, Evidence, 570 ; Perjury, 414 ; Procedure and Prac- 
 tice, 507. 
 
 Reg. V. Goss, False Pretences, 155. 
 
 Reg. V. Gould, Evidence, 557 ; Procedure and Practice, 511. 
 
 Reg. V. Gover, Coining, 91. 
 
 Reg. V. Gray, Arson, 37 ; Judgment, etc., 586 ; Malicious Injury, 312 ; 
 Murder, etc., 344, 361 ; Procedure and Practice, 488. 
 
 Reg. V. Grant, Arson, 46. 
 
 Reg. V. Great North of England Railway Company, Persons capable of 
 Crimes, 24. 
 
 Reg. V. Green, Abduction of Women, etc., 33 ; Assault and Battery, 50 ; 
 False Pretences, 153 ; Forgery, 225 ; Larceny, 246, 256 ; Pro- 
 cedure and Practice, 511. 
 
 Reg. V. Greenacre, Evidence, 562. 
 
 Reg. V. Greenhalgh, False Pretences, 161. 
 
 Reg. V. Greenwood, Coining, 97 ; Principals, etc., 26 ; Robbery, 446. 
 
 Reg. V. Gregory, Bail, 611 ; Crim. Inf , 4, 13 ; Counsel, 529 ; Murder, 
 etc., 343 ; Procedure and Practice, 485, 491, 503, 519.- 
 
 Reg. V. Grey, Obscenity, etc., 395. 
 
 Reg. V. Griffin, Evidence, 543. 
 
 Reg. V. Griffiths, Forgery, 212 ; Murder, etc., 359 ; Rape, etc., 434. 
 Digitized by Microsoft® 
 
xxxii TABLE OP CASES, DIGESTED. 
 
 Reg. V. Grimwade, Threatening Letters, 463, 466. 
 
 Reg. V. Grundy, Procedure and Practice, 483. 
 
 Reg. V. Guelder, Embezzlement, 130. 
 
 Reg. V. Guernsey, Larceny, 5i73. 
 
 Reg. V. Guilt, Grim. Inf., 13. 
 
 Reg. V. Guttridges, Rape, etc., 433, 435. 
 
 Reg. V. Gwilt, Crim. Inf., 13. 
 
 Reg. V. Hagan, Murder, etc., 332. 
 
 Reg. V. Hague, Personation, 424. 
 
 Reg. V. Haigh, Larceny, 258. 
 
 Reg. V. Haines, Costs, 615 ; Murder, etc., 336. 
 
 Reg. V. Hale, Larceny, 284. 
 
 Reg. V. Halford, Larceny, 252. 
 
 Reg. V. Hall, Larceny, 234. 
 
 Reg. V. Hallett, Perjury, 403; Rape, etc., 429. 
 
 Reg. V. Halliday, Conspiracy, 115 ; Evidence, 568; False Pretences, 169. 
 
 Reg. V. Hamilton, Larceny, 265 ; Threatening Letters, 458. 
 
 Reg. V. Handley, Abduction of Women, etc., 33 ; Larceny, 251. 
 
 Reg. V. Hannon, Forgery, 181. 
 
 Reg. V. Hansell, Principals, etc., 29. 
 
 Reg. V. Hansill, Threatening Letters, 467.- 
 
 Reg. V. Hanson, Assault and Battery, 48 ; Costs, 614, Forgery, 182 ; 
 
 Murder, etc., 352. ^ 
 
 Reg. V. Hare, Embezzlementj 138. 
 Reg. V. Hargreaves, Procedure and Practice, 479. 
 Reg. V. Harland, Forcible Entry, 172. 
 Reg. V. Harley, Larceny, 263. 
 Reg. V. Harmer, Larceny, 250. 
 Reg. V. Harrington, Murder, etc., 328, 335. 
 
 Reg. V. Harris, Arson, 46; Bail, 611; Crim. Inf., 13; Embezzlement, 
 120 ; Error and Appeal, 597 ; Evidence, 558 ; Forgery, 205 ; 
 Larceny, 281 ; Obscenity, etc., 395 ; PJots, 444. 
 Reg. V. Harrison, Perjury, 412. 
 Reg. V. Harrod, Pardon, 602. 
 Reg. V. Hartshorn, Forgery, 175. 
 
 Reg. V. Harvey, Coining, 83, 97; Larceny, 254; Perjury, 408, 410. 
 Reg. v. Haslam, Embezzlement, 138. 
 Reg. V. Hassell, Larceny, 258 ; Costs, 620. 
 Reg. y. Hastie, Embezzlement, 131. 
 Reg. V. Hawdon, Costs, 617, 618. 
 Reg. V. Hawes, Bigamy, 62, 65. 
 Reg. V. Hawkes, Forgery, 182. 
 Reg. V. Hawkins, Embezzlement, 119 ; Larceny, 254. 
 Reg. V. Hay, Evidence, 573. 
 Reg. V. Hayes, Rape, etc., 435. 
 
 Reg. V. Haynes, Adulteration of Food, 36 ; Evidence, 572 • Persons ca- 
 pable of Crimes, 19 ; Murder, etc., 326. • 
 Reg. V. Hayward, Costs, 614 ; Evidence, 575 ; Forgery, 213 ; Larceny, 
 
 Reg. V. Hazard, Costs, 615. 
 Reg. V. Hazell, Coimsel, 530 ; Evidence, 552. 
 Reg. V. Head, Larceny, 288. 
 Reg. V. Healey, Procedure and Practice, 488. 
 Reg. V. Heane.Peijury, 396 ; Procedure and Practice, 475. 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. 
 
 Reg. V. Hearn, Evidence, 538, 551. 
 
 Reg. V. Heath, Larceny, 254, 300. 
 
 Reg. V. Heaton, Bigamy, 63. 
 
 Reg. V. Hely, Ciim. Inf., 15. 
 
 Reg. V. Hemmings, Robbery, 448. 
 
 Reg. V. Henderson, False P)-etences, 1 64. 
 
 Reg. V. Hendy, Sedition, 454 ; Tlireatening Letters, 467. 
 
 Reg. V. Henshaw, False Pretences, 166. 
 
 Reg. V. Henson,- Sanitary Laws, 453. 
 
 Reg. V. Herefordshire, (Justices), Evidence, 661. 
 
 Reg. V. Hetherington, New Trial, 584. 
 
 Reg. V. Hewgill, False Pretences, 166. 
 
 Reg. V. Hewins, Perjury, 411. 
 
 Reg. V. Hewett, Evidence, 539. 
 
 Reg. V. Hewitt, Concealment of Births, 104 ; Conspiracy, 108. 
 
 Reg. V. Hewlett, Murder, etc., 361. 
 
 Reg. V. Hext, Crim. Inf., 13. 
 
 Reg. V. Hey, Larceny, 238, 244. 
 
 Reg. V. Hey wood, Forgery, 193 ; Procedure and Practice, 496. 
 
 Reg. V. Hibbert, Abduction of Women, etc., 34. 
 
 Reg. V. Hicklin, Obscenity, etc., 393. 
 
 Reg. V. Hicks, Murder, etc., 374. 
 
 Reg. V. Higginson, Persons capable of Crimes, 18. 
 
 Reg. V. Higgs, Burglary, 72 ; Poaching, 385. 
 
 Reg. V. Higson, Evidence, 654. 
 
 Reg. V. Hill, Burglary, 78 ; Evidence, 566 ; Forgery, 210, 221 ; Larce- 
 ny, 295 ; Threatening Letters, 463. 
 
 Reg. V. Hillman, Murder, etc., 353. 
 
 Reg. V. Hills, Costs, 621. 
 
 Reg. V. Hilton, Error and Appeal, 597 ; Evidence, 577 ; Larceny, 302. 
 
 Reg. V. Hind, Murder, etc., 375, 378. 
 
 Reg. V. Hinley, Procedure and Practice, 496. 
 
 Reg. V. Hinks, Evidence, 566. 
 
 Reg. V. Hoare, Embezzlement, 127 ; Larceny, 258. 
 
 Reg. V. Hobson, Larceny, 296. 
 
 Reg. V. Hoatson, Forgery, 200. 
 
 Reg. V. Hodges, Juries, etc., 520 ; Persons capable of Crimes, 20. 
 
 Reg. ^. Hodgkiss, Perjury, 398, 408. 
 
 Reg. V. Hodgson, Costs, 618, 619 ; Forgery, 176, 220. 
 
 Reg. V. Hogan, Murder, etc., 369. 
 
 Reg. V. Hogg, Murder, etc., 374, 383. 
 
 Reg. V. Holden, Murder, etc., 380 ; Procedure and Practice, 482. 
 
 Reg. V. Holland, Murder, etc., 326 ; Rape, etc., 437. 
 
 Reg. V. HoUoway, Error and Appeal, 596 ; Escape, Rescue, etc., 601 ; 
 False Pretences, 1 63 ; Juries, etc., 520 ; Larceny, 234. 
 
 Reg. V. Holman, Counsel, 530 ; Embezzlement, 137 ; Larceny, 298 ; Pro- 
 cedure and Practice, 497. 
 
 Reg. V. Holmes, Evidence, 545 ; Obscenity, etc., 393 ; Procedure and 
 Practice, 488. 
 
 Reg. V. Holroyd, Railways, etc., 426. 
 
 Reg. V. Holt, False Pretences, 168. 
 
 Reg. V. Hook, Perjury, 418. 
 
 Reg. V. Hooper, Larceny, 305. 
 
 Reg. V. Hopkins, Abduction of Women, etc., 32 ; Murder, etc., 329. 
 Fish. Dig.— C. Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. 
 
 Reg. V. Hopley, Murder, etc., 346. 
 Reg. V. Hore, Larceny, 237. 
 ■ Reg. V. Hornby, Larceny, 297. 
 Reg. V. Home, Punishment, 600. 
 Reg. V. Hornsea, Error and Appeal, 597. 
 Reg. V. Horsey, Murder, etc., 829. 
 Reg. V. Horton, Bigamy, 64. 
 Reg. V. Hounsell, Concealment of Births, 104. 
 Reg. V. Houseman, Forgery, 209. 
 Reg. V. Howell, Conspiracy, 106 ; Murder, etc., 349, 376 ; Piincipals, 
 
 etc., 26 ; Procedure and Practice, 490 ; Riots, 439, 443. 
 Reg. V. Hudson, Conspiracy, 109 ; Perjury, 400. 
 Reg. V. Hughes, False Pretences, 160 ; Juries, etc., 524 ; Larceny, 292 ; 
 
 Murder, etc., 335 ; Perjury, 397, 402, 418 ; Principals, etc., 30 ; 
 
 Procedure and Practice, 480 ; Robbery, 448. 
 Reg. V. Hull, Poaching, 389. 
 
 Reg. V. Humphreys, Juries, etc., 519 ; Procedure and Practice, 477. 
 • Reg. V. Huntley, Larceny, 302 ; Murder, etc., 362 ; Procedure and Prac- 
 tice, 489. 
 Reg. V. Hunt, Embezzlement, 132; Larceny, 259; Murder, etc., 380, 
 
 383 ; Procedure and Practice, 485 ; Riots, 440. 
 Reg. V. Hunter, False Pretences, 150 ; Threatening Letters, 465. 
 Reg. V. Hurley, Forgery, 187. 
 Reg. V. Hurrell, Perjury, 415. 
 Reg. V. Hurse, Coining, 95. 
 •Reg. V. Hvirsfield, Counsel, 531. 
 , Reg. V. Hutchinson, Murder, etc., 340. 
 Reg. V. Huxley, Robbery, 451. 
 .Reg. V. lUidge, Forgery, 202. 
 Reg. V. Inder, False Pretences, 152. 
 Reg. V. luder, Forgery, 211. 
 Reg. V. Ingham, Murder, etc., 372. 
 Reg. V. Ion, Forgery, 211, 225. 
 Reg. V. Isaacs, Murder, etc., 353. 
 Reg. y. Israel, Procedure and Practice, 504. 
 Reg. V. Jackson, Embezzlement, 119 ; Larceny, 244, 259; Murder, etc., 
 
 328,382. 
 Reg. v.. Jacobs, Evidence, 541. 
 Reg. y..James, Assault and Battery, 48 ; Evidence, 569; Forgery, 204, 
 
 227 ; Malicious Injury, 314 ; Murder, etc., 355 ; Procedure and 
 
 Practice, 474, 491. 
 Reg. Y, Jankowski, Evidence, 536. 
 ..Reg. V. Janson, Larceny, 244. 
 Reg. v. Jarrald, Burglary, 77. 
 
 Reg. v.Jarsris, Adulteration of Food, 36; Coining, 93 ; Evidence, 536. 
 Reg. V. Jeans, Malicious Injury, 322. 
 Reg. V. Jefiries, Principals, etc., 26. 
 Reg. V. Jellyman, Evidence, 564 ; Sodomy, etc., 456. 
 Reg. V. Jenkins, Larceny, 245 ; Murder, etc., 378 ; Rape, etc., 435. 
 Reg. V. Jennings, Crim. Inf., 11 ; Larceny, 256, 299. 
 Reg. V. Jennison, False Pretences, 148, 149, 158. 
 Reg. V. Jepson, Threatening Letters, 463. 
 Reg. V. Jessop, False Pretences, 160, 
 Reg. V. Jewell, Costs, 618. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. 
 
 Reg. V. Jewett, Larceny, 281. 
 
 Reg. V. Johnson, Assault and Battery, 48 ; Bail, 611 ; Evidence, 550, 
 553 ; Forgery, 204 ; Larceny, 235, 266, 274, 294 ; Murder, etc., 
 330 ; New Trial, 583 ; Procedure and Practice, 507 ; Rape, 
 etc., 436. 
 
 Reg. V. Johnston, Evidence, 543 ; False Pretences, 158. 
 
 Reg. V. Jones or Janes, Arson, 39. 
 
 "Reg. V. Jones, Bigamy, 63, G4; Burglary, 68, 69 ; Coining, 95, 96, 97; 
 Counsel," 529 ; Evidence, 575; False Pretences, 147, 148, 169; 
 Larceny, 238, 255, 277, 278, 279 ; Malicious Injury, 314; Mur- 
 der, etc., 359, 362 ; Poaching, 386 ; Procedure and Practice, 474, 
 482 ; Punishment, 600 ; Rape, etc., 430 ; Sea, Offences at, 453 ; 
 Threatening Letters, 463, 464, 466. 
 
 Reg. V. Jordan, Counsel, 533 ; Persons capable of Crimes, 24 ; Rape, 
 etc., 430, 431, 437. 
 
 Reg. V. Joyce, Forgery, 208. 
 
 Reg. V. Kain, Threatening Letters, 461. 
 
 Reg. V. Kay, False Pretences, 164 ; Larceny, 242. 
 
 Reg. V. Kealey, False Pretences, 1 68. 
 
 Reg. V. Keane, Procedure and Practice, 475. 
 
 Reg. v. Keena, Embezzlement, 137. 
 
 Reg. V. Keighley, False Pretences, 156. 
 
 Reg. V. Keith, Forgery, 179. 
 
 Reg. V. Kelley, Murder, etc., 330. 
 
 Reg. V. Kelly, Larceny, 2G0. 
 
 Reg. V. Kenrick, Conspiracy, 107, 117; False Pretences, 154; Pro- 
 cedure and Practice, 504. 
 
 Reg. V. Kerr, Evidence, 544 ; Larceny, 264. 
 
 Reg. V. Kerrigan, Evidence, 563. 
 
 Reg. V. Key, Juriep, etc., 523, 525. 
 
 Reg. V. Keys, Procedure and Practice, 489. 
 
 Reg. V. King, Conspiracy, 111 ; Error and Appeal, 593 ; Larceny, 283, 
 293. 
 
 Reg. V. Kinnear, Forgery, 182. 
 
 Reg. V. Kipps, Abduction of Women, etie., 33. 
 
 Reg. V. Kirkham, Murder, etc., 334. 
 
 Reg. V. Kitson, Arson, 46 ; Evidence, 579. 
 
 Reg. V. Knight, Procedure and Practice, 513. 
 
 Reg. V. Knights, Murder, etc., 336. 
 
 Reg. V. Kohn, Malicious Injury, 316. 
 
 Reg. V. Lacey, Evidence, 570 ; Juries, etc., 524. 
 
 Reg. V. Lallament, Murder, etc., 357. 
 
 Reg. V. Lamb, Punishment, 600. 
 
 Reg. V. Langford, Riots, 444. 
 
 Reg, V. Langhurst, Procedure and Practice, 508. 
 
 Reg. V. Langmead, Larceny, 250, 282. 
 
 Reg. V. Langridge or Langbridge, Evidence, 553. 
 
 Reg. V. Larkin, Larceny, 302 ; Procedure and Practice, 489, 502, 
 
 Reg. V. Latimer, Crim. Inf , 7. 
 
 Reg. V. Laugher, Evidence, 542. 
 
 Reg. v. Lavey, Error and Appeal, 593 ; Perjury, 397. 
 
 Reg. V. Law, Persons capable of Crimes, 1 9 ; Procedure and Practice, 498. 
 
 Reg. V. Lawes, Burglary, 81. 
 
 Reg. V. Lawlor, Perjury, 404. 
 
 Digitized by Microsoft® 
 
xxxvi TABLE OF CASES, DIGESTED. 
 
 Reg. V. Lawrence, Procedure and Practice, 507. 
 
 Reg. V. Lawson, Grim. Inf., 3. 
 
 Reg. V. Layton, Persons capable of Crimes, 19. 
 
 Reg. V. Ledbetter, Evidence, 55.5. 
 
 Reg. V. Leddington, Murder, etc., 334. 
 
 Reg. V. Ledger, Murder, etc., 335. 
 
 Reg. V. Lee, False Pretences, 148, 155, 158, 166 ; Forgery, 218 : Mur- 
 der, etc., 328. 
 
 Reg. V. Lees, Error and Appeal, 592. 
 
 Reg. V. Leech, False Pretences, 169 ; Procedure and Practice, 482. 
 
 Reg. V. Leggett, Murder, etc., 342.. 
 
 Reg. V. Leigh, Persons Capable of Crimes, 20. 
 
 Reg. V. Leng, Evidence, 577. 
 
 Reg. V. Leonard, False Pretences, 152, 166. 
 
 Reg. V. Leppard, Larceny, 244. 
 
 Reg. V. Lesley, Sea, Offences at, 453. 
 
 Reg. V. Leverson, Evidence, 575. 
 
 Reg. V. Levine, False Pretences, 156. 
 
 Reg. V. Levy, Evidence, 578. 
 
 Reg. V. Lewis, Assault and Battery, 47 ; Eri'or and Appeal, 597 ; Murder, 
 etc, 349, 357. 
 
 Reg. V. Light, Apprehension and Arrest, 605 ; Assault and Battery, 51. 
 
 Reg. V. Lines, Rape, etc., 436. 
 
 Reg. V. Lister, Embezzlement, 121, 
 
 Reg. V. Little, Larceny, 233. 
 
 Reg. V. Littleton, Counsel, 531. 
 
 Reg. V. London, (Corporation) Procedure and Practice, 519. 
 
 Reg. V. London, (Lord Mayor) Evidence, 561 ; Mayor, etc., Larceny, 309. 
 
 Reg. V. Longbottom, Murder, etc., 335. 
 
 Reg. V. Longhorn, Persons Capable of Crimes, 21. 
 
 Reg. V. Lonsdale, Forgery, 205 ; Larceny, 298. 
 
 Reg. V. Loose, Embezzlement, 143 ; Larceny, 259. 
 
 Reg. V. Lopez, Sea, Offences at, 453. 
 
 Reg. V. Lovett, Procedure and Practice, 505. 
 
 Reg. v. Low, Larceny, 257. 
 
 Reg. V. Lowe, Murder, etc., 343. 
 
 Reg. V. Lowrie, Larceny, 270, 275. 
 
 Reg. V. Luck, Murder, etc., 332. 
 
 Reg. V. Luck or Burdett, Evidence, 571. 
 
 Reg. V. Luckhurst, Evidence, 540. 
 
 Reg. V. Lucy, Perjury, 419. 
 
 Reg. V. Lumley, Bigamy, 64. 
 
 Reg. V. Lunny, Murder, etc., 382. 
 
 Reg. V. Lyons, Arson, 41. 
 
 Reg. V. Lynn, Sepulture, 455. 
 
 Reg. V. Mabbett, Murder, etc., 367. 
 
 Reg. V. Mabel, Assault and Battery, 50. 
 
 Reg. V. Macarthy, Procedure and Practice, 506. 
 
 Reg. V. Mackay, Murder, etc., 378. 
 
 Reg. V. Macklin, Larceny, 308. 
 
 Reg. V. Mac Millan, Coining, 93. 
 
 Slfeg. V. M'Athey, Larceny, 298. 
 
 Reg. V. M'Donaid, Embezzlement, 125. 
 
 Reg. V. McDonnell, Threatening Letters, 466. 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. 
 
 Reg. V. M'CafFerty, Treason, 471. 
 
 Reg. V. M'Cartie, Juries, etc., 525. 
 
 Reg. V. M'Carthy, Larceny, 260. 
 
 Reg. V. M'Connell, Forgery, 205. 
 
 Reg. V. M'Culley, Larceny, 281. 
 
 Reg. V. M'Cully, Larceny, 288. 
 
 Reg. V. M'Gavaran, Rape, etc., 437. 
 
 Reg. V. McGavaron, Costs, 613. 
 
 Reg. V. McGovern, Evidence, 557. 
 
 Reg. V. McGratJi, Larceny, 243. 
 
 Reg. V. M'Gregor, Malicious Lijury, 316. 
 
 Reg. V. McKale, Larceny, 233. 
 
 Reg. V. M'Loughlin, Murder, etc., 359. 
 
 Reg. V. M'Phane, Murder, etc., 360. 
 
 Reg. V. M'Pherson, Burglary, 77 ; Misdemeanors, 324. 
 
 Reg. V. M'Rue, Rape, etc., 431. 
 
 Reg. V. Madge, Larceny, 270. 
 
 Reg. V. Mahoney, Forgery, 174, 185. 
 
 Reg. V. Major, Costs, 616. 
 
 Reg. V. Malings, Counsel, 531. 
 
 Reg. V. Mallam, Obscenity, etc., 394. 
 
 Reg. V. Mallinson, Articles of the Peace, 608, 609. 
 
 Reg. V. Maloney, Evidence, 560 ; Suicides, 457 ; Verdict, 581. 
 
 Reg. V. Manchester, (Mayor) Costs, 618 ; Persons Capable of Crimes, 24.. 
 
 Reg. V. Mankletow or Manktelow, Abduction of Women, etc., 32. 
 
 Reg. V. Manning, Juries, etc., 522 ; Larceny, 235 ; Murder, etc., 349, 
 350 ; Persons Capable of Crimes, 22, 23 ; Principals, etc., 30. 
 
 Reg. V. Mansfield, Larceny, 300, 307 ; Procedure and Practice, 493. 
 
 Reg. V. Manwaring, Bigamy, 62. 
 
 Reg. V. Manzano, Evidence, 549. 
 
 Reg. v. March, Assault and Battery, 48. 
 
 Reg. V. Marcus, Forgery, 221. 
 
 Reg. V. Marks, Embezzlement, 132 ; Procedure and Practice, 502. 
 
 Reg. V. Markuss, Murder, etc., 345. 
 
 Reg. V. Marriott, Murder, etc., 368. 
 
 Reg. V. Marsden, Assault and ]3attery, 52. 
 
 Reg. V. Marsh, Embezzlement, 131 ; False Pretences, 165 ; Misdemean- 
 ors, 325. 
 
 Reg. V. Marshall, Crim. Inf., 1 ; Evidence, 557. 
 
 Reg. V. Martin, Assault and Battery, 48 ; Coining, 99 ; Counsel, 530 ; 
 Error and Appeal, 595, 596, 597 ; False Pretences, 150, -1 54, 155, 
 162, 167 ; Larceny, 302 ; Misdemeanors, 325 ; Murder, etc., 335, 
 337 ; Rape, etc., 436, 437. 
 
 Reg. V. Mason, Perjury, 421. 
 
 Reg. V. Masters, Embezzlement, 120 ; Eri'or and Appeal, 595. 
 
 Reg. V. Mattheson, Larceny, 267. 
 
 Reg. V. Matthews, Evidence, 560 ; Larceny, 295, 297. 
 
 Reg. v. May, Concealment of Births, 104 ; Embezzlement, 127 ; Poach- 
 ing, 384, 391. 
 
 Reg. V. Mayle, Embezzlement, 123. 
 
 Reg. V. Mazeau, Forgery, 181. 
 
 Reg. V. Mead, Crim. Inf., 1. 
 
 Reg. V. Meadham, Poaching, 387. 
 
 Reg. V. Meadows, Abduction of Women, etc., 32 ; Counsel, 530. 
 Digitized by Microsoft® 
 
xxxviii TABLE OF CASES, DIGESTED. 
 
 Reg. V. Meakin, False Pretences, 151. 
 
 Reg. V. Meal, Burglary, 68. 
 
 Reg. V. Meany, Verdict, 581. 
 
 Reg. V. Meaney, Treason, 472. 
 
 Reg. V. Mears, Conspiracy, 106 ; Misdemeanors, 324 ; Rape, etc., 438. 
 
 Reg. V. Medland, Larceny, 246. 
 
 Reg. V. Meek, Perjury, 896. 
 
 Reg. V. Megson, Murder, etc., 379 ; Rape, etc., 433. 
 
 Reg. V. Meigh, Forgery, 204. 
 
 Reg. V. Mellor, Error and Appeal, 595 ; Juries, etc., 522. 
 
 Reg. V. Menage, Threatening Letters, 461. 
 
 Reg. V. Mence, Larceny, 263. 
 
 Reg. V. Menliatn, Error and Appeal, 595 ; Murder, etc., 349. 
 
 Reg. V. Mercer, Rape, etc., 433, 434. 
 
 Reg. V. Meredith, AsFault and Battery, 47. 
 
 Reg. V. Merry, Poaching, 387, 392. 
 
 Reg. V. Miard, Threatening Letters, 459. 
 
 Reg. V. Michael, Murder, etc., 331. 
 
 Reg. V. Mick, Evidence, 543. 
 
 Reg. V. Middleditch, Threatening Letters, 462. 
 
 Reg. V. Middleship, Murder, etc., 330. 
 
 Reg. V. Miles, Assault and Battery, 48. 
 
 Reg. V. Millard, Perjury, 400. 
 
 Reg. V. Millen, Embezzlement, 133 ; Evidence, 544, 558 ; Larceny, 296. 
 
 Reg. V. Mills, False Pretences, 147, 157. 
 
 Reg. V. Milner, Procedure and Practice, 483. 
 
 Reg. V. Milnes, Perjury, 412. 
 
 Reg. V. Milton, Forgery, 207. 
 
 Reg. V. Mitchel, Procedure and Practice, 502. 
 
 Reg. V. Mitchell, Evidence, 578 ; Forgery, 184, 206 ; Procedure and 
 Practice, 4h0, 483, 509, 514; Robbery, 451. 
 
 Reg. V. Moah, Embezzlement, 134; Forgery, 175 ; Larceny, 261. 
 
 Reg. V. Mockford, Larceny, 251. 
 
 Reg. V. Moil-, Evidence, 560. 
 
 Reg. V. Moland, False Pretences, 164. 
 
 Reg. V. Mole, Larceny, 247. 
 
 Reg. V. Money, Larceny, 283. 
 
 Reg. V. Moody, Forgery, 211, 215. 
 
 Reg. V. Mooney, Murder, etc., 377. 
 
 Reg. V. Moore, Evidence, 541, 655 ; Forgery, 228 ; Larceny, 249 • Per- 
 sons Capable of Crimes, 23. ' 
 
 Reg. v. Mopsey, Forgery, 1 83. 
 Reg. v. Moreau, Perjury, 400. 
 Reg. V. Morgan, Larceny, 240 ; Perjury, 414. 
 Reg. V. Morlit, Larceny, 251. 
 
 Reg. V. Morris, Assault and Battery, 56 ; Concealment of Births, 102 • 
 Larceny, 271, 276 ; Poaching, 390 ; Procedure and Practice, 494^ 
 
 Reg. V. Morrison, Larceny, 277. 
 
 Reg. V. Morse, Evidence, 546. 
 
 Reg. V. Mortlock, Procedure and Practice, 475. 
 
 Reg. V. Moseley, False Pretences, 168. 
 
 Reg. V. Moss, False Pretencss, 162, 167. 
 
 Reg. V. MuUaney, Perjury, 398. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. xxxix 
 
 Reg. V. Muller, Evidence, 553, 560. 
 
 Reg. V. Mullins, Evidence, 565, 574. 
 
 Reg. V. Munday, Principals, etc., 26. 
 
 Reg. V. Munson, Arson, 39, 43. 
 
 Reg. V. Muntz, Crim. Inf., 15. 
 
 Reg. V. Murdock, Embezzlement, 137 ; Procedure and Practice, 481. 
 
 Reg. V. Murphy, Conspiracy, 113 ; Evidence, 570 ; Larceny, 266 ; New- 
 Trial, 582 ; Procedure and Practice, 497. 
 
 Reg. V. Murray, Murder, etc., 341. 
 
 Reg. V. Murton, Murder, etc., 335. 
 
 Reg. V. Mutters, Larceny, 253. 
 
 Reg. V. Myott, Forgery, 195. 
 
 Reg. V. Nash, Forgery, 175, 201. 
 
 Reg. V. Naylor, False Pretences, 147 ; Perjury, 410. 
 
 Reg. V. Neale, Assault and Battery, 48 ; Rape, etc., 436 ; Riots, 439, 441. 
 
 Reg. V. Neville, Perjury, 411. 
 
 Reg. V. Newall, Perjury, 415. 
 
 Reg. V. Newhouse, Costs, 621. 
 
 Reg. V. Newland, Larceny, 282. 
 
 Reg. V. Newman, Crim. Inf., 7 ; New Trial, 584 ; Perjury, 416. 
 
 Reg. V. Newton, Bigamy, 65 ; Error and Appeal, 591, 592 ; Evidence, 
 554, 560; Forgery, 202; Juries, etc., 519, 527; Perjury, 400; 
 Procedure and Practice, 477, 506. 
 
 Reg. V. Nicholas, Rape, etc., 438. 
 
 Reg. V. Nicholls, Larceny, 307 ; Murder, etc., 359 ; Rape, etc., 437, 438. 
 
 Reg. V. Nicholson, Juries, etc., 526. 
 
 Reg. V. Nickless, Poaching, 384. 
 
 Reg. V. Nicolas, Murder, etc., 379. 
 
 Reg. V. Nisbitt, Apprehension and Arrest, 605 ; Forgery, 186. 
 
 Reg. V. Noake, Embezzlement, 136. 
 
 Reg. V. Noakes, Murder, etc., 345. 
 
 Reg. V. Noon, Murder, etc., 327. 
 
 Reg. V. Norman, Embezzlement, 119. 
 
 Reg. V. Norris, Malicious Injury, 315. 
 
 Reg. V. North, Larceny, 243. 
 
 Reg. V. Norton, False Pretences, 167 ; Threatening Letters, 461. 
 
 Reg. V. Nott, Judgment, etc., 588 ; Perjury, 421. 
 
 Reg. V. Nottingham Journal, Criminal Information, 13. 
 
 Reg. V. Gates, False Pretences, 166, 167. 
 
 Reg. V. O'Brian, Murder, etc., 373. 
 
 Reg. v. O'Brien, Burglary, 76 ; Government Stores, 230 ; Judgment, 
 etc., 588. 
 
 Reg. V. O'Connor, Procedure and Practice, 481. 
 
 Reg. V. Oddy, Forgery, 225 ; Larceny, 305, 306. 
 
 Reg. V. Odgers, Murder, etc., 358 ; Procedure and Practice, 514. 
 
 Reg. V. O'Donnell, Procedure and Practice, 518. 
 
 Reg. V. Oldham, Burglary, 76. 
 
 Reg. V. Ollifier, Abduction of Women, etc., 34. 
 
 Reg. V. Oliver, Assault and Battery, 53 ; Murder, etc., 362. 
 
 Reg. V. Opie, Concealment of Births, 102, 
 
 Reg. V. Orchard, Murder, etc., 375 ; Obscenity, etc., 394 ; Procedure 
 and Practice, 489. 
 
 Reg. V. Orgill, Bigamy, 61. 
 
 Reg. V. Osborne, Evidence, 556 ; Rape, etc., 433. 
 
 Digitized by Microsoft® 
 
xl TABLE OF CASES, DIGESTED. 
 
 Reg. V. Oswestry, (Treasurer), Costs, C14. 
 
 Reg. V. Overton, Embezzlement, 139 ; Perjury, 397. 
 
 Reg. V. Owen, Evidence, 552 ; Perjury, 418 ; Procedure and Practice, 
 506. 
 
 Reg. V. Oxford, Murder, etc., 357 ; Persons capable of Crimes, 17 ; 
 Ti-eason, 467. 
 
 Reg. V. Oxley, Peijury, 4G5. 
 
 Reg. V. Packard, Murder, etc., 327. 
 
 Reg. V. Page, Coining, 95, 96, 98 ; Counsel, 530. 
 
 Reg. V. Paice, Arson, 38. 
 
 Reg. y. Painter, Evidence, 551. 
 
 Reg. V. Palmer, Procedure and Practice, 502. 
 
 Reg. V. Pardenton, Railways, etc., 426. 
 
 Reg. V. Parfitt, Burglary, 79. 
 
 Reg. V. Pargeter, Murder, etc., 348. 
 
 Reg. V. Parish, Forgery, 186 : Juries, etc., 521. 
 
 Reg. V. Parker, Arson, 37 ; Conspiracy, 111; Evidence, 536 ; False Pre- 
 tences, 159, 167; Poaching, 389 ; Perjury, 409, 417 ; Procedure 
 and Practice, 515. 
 
 Reg. V. Parkinson, New Trial, 584. 
 
 Reg. V. Parr, Larceny, 297 ; Procedure and Practice, 508. 
 
 Reg. V. Parsons, Evidence, 578. 
 
 Reg. V. Pascoe, Larceny, 310. 
 
 Reg. V. Patent Eureka and Sanitaiy Manure Company, Pi-ocedure and 
 Practice, 486. 
 
 Reg. V. Payne, Escape, Rescue, etc., 601. 
 
 Reg. V. Pearce, Evidence, 567 ; Perjury, 398 ; Persons capable of Crimes, 
 21 ; Procedure and Practice, 501. 
 
 Reg. V. Pearson, Peijury, 401. 
 
 Reg. V. Peck, Conspiracy, 110. 
 
 Reg. V. Peel, Evidence, 560 ; Larceny, 2G9, 303 ; Murder, etc., 377. 
 
 Reg. V. Pelham, Murder, etc., 370, 371. 
 
 Reg. V. Perkins, Murder, etc., 376, 379 ; Principals, etc., 26. 
 
 Reg. V. Perry, Concealment of Births, 102; Larceny, 276 ; Mui-der, etc., 
 
 Reg. V. Peters, Larceny, 248. 
 
 Reg. V. PJielps, Murder, etc., 333, 372; Procedure and Practice, 509, 514- 
 Riots, 441. ' ' > 
 
 Reg. T. Phetheon, Larceny, 246. 
 
 Reg. V. Philips, Evidence, 559. 
 
 Reg. V. Phillips, Assault and Battery, 47 ; Coining. 92 ; Juries, etc., 522- 
 Persons capable of Crimes, 24; Procedure and Practice, 477- Rane' 
 etc., 430 ; Riots, 444. ' f > 
 
 Reg. V. Phillpot, Murder, etc., 369. 
 
 Reg. V. Phillpotts, Peijury, 397; False Pretences, 161. 
 
 Reg. V. Pickles, Crim. Inf., 1.6. 
 
 Reg. V. Pike, Forgery, 176, 204. 
 
 Reg. V, Pierce, Larceny, 249 ; Procedure and Practice, 484, 518, 619 
 
 Reg. V. Pikesley, Evidence, 656. 
 
 Reg. V. Pilling, Forgery, 206. 
 
 ^^g- ^■^^^^' I^ai'ceny, 292 ; Murder, etc., 329 ; Procedure and Practice, 
 
 Reg. V. Plummer, Murder, etc., 336. 
 Reg. V. Pocock, Murder, etc., 336. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. xli 
 
 Reg. V. Polly, Burglary, 81. 
 
 Reg. V. Poole, Larceny, 234. 
 
 Reg. V. Porter, Murder, etc., 370. 
 
 Reg. V. Potter, Burglary, 78. 
 
 Reg. V. Povey, Bigamy, 62, 65. 
 
 Reg. V. Powell, Larceny, 275 ; Procedure and Practice, 493. 
 
 Reg. V. Poynton, Larceny, 262. 
 
 Reg. V. Ppyser, Larceny, 247. 
 
 Reg. V. Pratt, Larceny, 235, 307 ; Poaching, 384. 
 
 Reg. V. Prebble, Assault and Battery, 50. 
 
 Reg. V. Pressy, Rape, etc., 430. 
 
 Reg. V. Prestney, Malicious Injury, 321 ; Poaching, 388. 
 
 Reg. V. Preston, Larceny, 248. 
 
 Regi V. Pnce, Arson, 43 ; Bail, 612 ; Murder, etc., 359; Poaching, 388; 
 Procedure and Practice, 474. 
 
 Reg. V. Pries, Forgery, 203. 
 
 Reg. V. Priest", Evidence, 544. 
 
 Reg. V. Primelt, Abduction of Women, etc., 84. 
 
 Reg. V. Prince, Larceny, 233, 253. 
 
 Reg. V. Pringle, Forgery, 210, 219 ; Personation, 424. 
 
 Reg. V. Piitchard, Larceny, 291 ; Procedure and Practice, 501. 
 
 Reg. V. Privett, Larceny, 251. 
 
 Reg. V. Probert, Costs, 619. 
 
 Reg. V. Proud, Embezzlement, 132, 136; Peijury, 402. 
 
 Reg. V. Pulbrook, Forgery, 203. 
 
 Reg. V. Puddick, Counsel, 534. 
 
 Reg. V. Pulham, Principals, etc., 30. 
 
 Reg. V. Purchase, Embezzlement, 136 ; Procedure and Practice, 514. 
 
 Reg. V. Quail, Principals, etc., 26. 
 
 Reg. V. Qualter, Murder, etc., 379. 
 
 Reg. V. Quigley, Evidence, 552. 
 
 Reg. V. Quin, Evidence, 560. 
 
 Reg. T. Raake, Forgery, 208. 
 
 Reg. V. Radcliffe, Procedure and Practice, 494. 
 
 Reg. V. Radford, Forgery, 225. 
 
 Reg. V. Radley, Larceny, 299. 
 
 Reg. V. Ragg, False Pretences, 157. 
 
 Reg. V. Ramsden, Robbery, 449. 
 
 Reg. V. Rathbone, Larceny, 263. 
 
 Reg. V. Rawlins, Perjury, 401. 
 
 Reg. V. Rea, Crim. Inf , 3, 9. 
 
 Reg. V. Read, Assault and Battery, 48 ; Rape, etc., 437. 
 
 Reg. V. Reade, Conspiracy, 117. 
 
 Reg. V. Reaney, Murder, etc., 377. 
 
 Reg. V. Reardon or Rearden, Larceny, 297. 
 
 Reg. V. Rearden, Burglary, 81 ; Evidence, 576 ; Rape, etc., 435. 
 
 Reg. V. Reason, Larceny, 261. 
 
 Reg. V. Redford, Embezzlement, 132. 
 
 Reg. V. Redman, Threatening Letters, 461. 
 
 Reg. V. Reed, Forgery, 208 ; Larceny, 238, 248, 256; Obscenity, etc., 395. 
 
 Reg. V. Reeves, Larceny, 259. 
 
 Reg. V. Regan, Arson, 46 ; Evidence, 537. 
 
 Reg. V. Reid, Robbery, 445, 452. 
 
 Reg. v. Rendle, Juries, etc., 520. 
 
 Digitized by Microsoft® 
 
xlii TABLE OF CASES, DIGESTED. 
 
 Reg. V. Renshaw, Murder, etc., 369. 
 
 Reg. V. Reynolds, Ex parte, Poaching, 392. 
 
 Reg. V. Rice, Larceny, 278. 
 
 Reg. V. Richards, Counsel, 530 ; Evidence, 553 ; Larceny, 238 ; Persons 
 capable of Crimes, 20 ; Threatening Letters, 462. 
 
 Reg. V. Richardson, Embezzlement, 139 ; False Pretences, 152 ; Judg- 
 ment, etc., 589 ; Murder, etc., 353. 
 
 Reg. V. Richmond, Coining, 91 ; Forgery, 195; Procedure and Practice, 
 515. 
 
 Reg. V. Rider, Counsel, 531. 
 
 Reg. V. Ridgway, False Pretences, 157. 
 
 Reg. V. Rigby, Procedure and Practice, 476. 
 
 Reg. V. Rigg, Evidence, 552. 
 
 Reg. V. Riley, Evidence, 557, 561 ; Larceny, 237 ; Poaching,'390. • 
 
 Reg. V. Rinaldi, Forgery, 181. 
 
 Reg. V. Ritson, Forgery, 191. 
 
 Reg. v. Robb, Abduction of Women, etc., 34. 
 
 Reg. V. Roberts, Coining, 91; Forgery, 183, 205; Larceny, 236; Perjury, 
 417. 
 
 Reg. V. Robertson, Threatening Letters, 459. 
 
 Reg. v. Robins, Abduction of Women, etc., 32 ; False Pretences, 164; 
 Larceny, 242 ; Rape, etc., 434 ; Sodomy, etc., 457. 
 
 Reg. V. Robinson, Coining, 84 ; Evidence, 58o'; False Pretences, 161 ; 
 Larceny, 287, 302, 307. 
 
 Reg. V. Robson, Forgery, 219 ; Larceny, 258, 259 ; Procedure and 
 Practice, 508. 
 
 Reg. V. Rodway, Larceny, 241. 
 
 Reg. V. Roebuck, False Pretences, 155. 
 
 Reg. V. Rogers, Coining, 94, 95 ; Forgery, 184, 219 ; Larceny, 263, 297, 
 
 303. 
 Reg. V. Rooke, Railways, etc., 426. 
 Reg. V. Rosenberg, Larceny, 252. 
 Reg. V. Rowe, Larceny, 249, 290. 
 Reg. V. Rowed, Sodomy, etc., 456. 
 Reg. V. Rowlands, Conspiracy, 108, 111. 
 Reg. V. Rowton, Evidence, 573. 
 Reg. V. Roxburgh, Assault and Battery, 49, 52. 
 Reg. V. Rudick, Robbery, 449. 
 Reg. V. Rudland, Rape, etc., 430. 
 Reg. V. Rundle, Murder, etc., 370. 
 
 Reg. V. Russell, Arson, 37 ; Evidence, 553 ; Juries, etc., 521 • New Tri- 
 al, 583. 
 Reg. v. Ruxton, Procedure and Practice, 603. 
 Reg. V. Ryan, Murder, etc., 352. 
 Reg. V. Ry croft. Conspiracy, 113. 
 Reg. V. Ryland, Murder, etc., 368; Rape, etc., 436. 
 Reg. V. Rymes, False Pretences, 170 ; Procedure and Practice 500 
 Reg. V. Salt, Forgery, 228. ' 
 
 Reg. V. Salvi, Procedure and Practice, 511. 
 Reg. v. Samways, Larceny, 305. 
 
 Reg. V. Sanders, Asfault and Battery, 51 ; Burglaiy, 78. 
 Reg. V. Sanderson, Poaching, 387 ; Railways, etc., 426. 
 Reg. V. Sandys, Murder, etc., 373. 
 Reg. V. Sausome, Evidence, 550, 554. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. xKi 
 
 Reg. V. Sargent, Forgery, 210. 
 
 Reg. V. Sarslield, Larceny, 301. 
 
 Reg. V. Sattler, Sea, Offences at, 453 ; Murder, etc., 349. 
 
 Reg. V. Saunders, Bail, 612 ; Grim. Inf., 9 ; Rape, etc., 429. 
 
 Reg. V. Savage, Procedure and Practice, 507. 
 
 Reg. V. Savile, Grim. Inf., 1 6. 
 
 Reg. V. Saward, Larceny, 254. 
 
 Reg. V. Scaife, Bail, 611; Evidence, 557; Judgment, etc., 589; New 
 Trial, 582. 
 
 Reg. V. Schlesinger, Perjury, 396, 409, 415. 
 
 Reg. v. Schleter, Procedure and Practice, 505. 
 
 Reg. V. Schmidt, Larceny, 296. 
 
 Reg. V. Scott, Procedure and Practice, 490. 
 
 Re^. V. Scotton, Perjury, 400. 
 
 Reg. V. Sell, Procedure and Practice, 505. 
 
 Reg. V. Selten, Murder, etc., 334, 337. 
 
 Reg. V. Selway, Larceny, 267. 
 
 Reg. T. Serva, Evidence, 570 ; Murder, etc., 348 ; Procedure and Prac- 
 tice, 494. 
 
 Reg. V. Sharman, Misdemeanors, 324 ; Forgery, 176. 
 
 Reg. V. Sharpe, Forgery, 197 ; Procedure and Practice, 484; Riots, 440; 
 Sepulture, 455. 
 
 Reg. V. Shaw, Perjury, 401. 
 
 Reg. V. Shelburn, Evidence, 562. 
 
 Reg. V. Shellard, Conspiracy, 114; Evidence, 562. 
 
 Reg. V. Shepherd, Larceny, 262, 272 ; Murder, etc., 368. 
 
 Reg. V. Sheppard, Arson, 42 ; Larceny, 280. 
 
 Reg. V. Sherlock, Assault and Battery, 51. 
 
 Reg, V. Sherwood, False Pretences, 157. 
 
 Reg. V. Shickle, Larceny, 288. 
 
 Reg. V. Shott, Rape, etc., 437. 
 
 Reg. V. Shrimpton, Evidence, 577. 
 
 Reg. V. Shuttleworth, Evidence, 577. 
 
 Reg. V. Sills, Evidence, 567. 
 
 Reg. V. Simmonds, False Pretences, 168. 
 
 Reg. V. Simmons, Perjury, 401. 
 
 Reg. V. Simmonsto, Bigamy, 65. 
 
 Reg. V. Simpson, Larceny, 245, 266 ; Procedure and Practice, 485 ; 
 Riots, 444. 
 
 Reg. V. Skeen, Embezzlement, 144 ; Procedure and Practice, 604. 
 
 Reg. V. Skeet, Murder, etc., 328, 349. 
 
 Reg. V. Skelton, Concealment of Births, 103. 
 
 Reg. V. Sleeman, Evidence, 540, 541. 
 
 Reg. V. Sleep, Government Stores, 230 ; Concealment of Births, 102. 
 
 Reg. V. Slingsby, Larceny, 277. 
 
 Reg. V. Smith, Bigamy, 64; Error and Appeal, 596,597; Evidence, 551, 
 562; False Pretences, 156, 161; Forgery, 175, 182, 187, 199, 
 205, 211, 215, 219, 228 ; Larceny, 235, 250, 2.55, 264, 276, 295; 
 Malicious Injury, 311; Murder, etc., 327, 328, 337, 355, 359, 
 369, 370, 372, 377 ; Perjury, 408, 413, 422 ; Persons capable of 
 Crimes, 23 ; Procedure and Practice, 476, 492 ; Threatening Let- 
 ters, 458. 
 
 Reg. V. Sraythies, Bigamy, 64; Forgery, 223; Procedure and Practice, 
 503. 
 
 Digitized by Microsoft® 
 
xliv TABLE OF CASES, DIGESTED. 
 
 Reg. V. Snelling, Forgery, 207. 
 
 Reg. V. Southey, Counsel, 529 ; Procedure and Practice, 504. 
 
 Reg. V. Southwood, Perjury, 408. 
 
 Reg. V. Sparks, Evidence, 563. 
 
 Reg. V. Sparrow, Assault and Battery, 53 ; Crim. Inf., 15 ; Murder, etc., 
 
 362. 
 Reg. y. Spalding, Perjury, 419. 
 
 Reg. V. Spencer, Arson, 43 ; Murder, etc., 346 ; Poaching, 388. 
 
 Reg. V. Spicer, Larceny, 281. 
 
 Reg. V. Spilling, Murder, etc., 345. 
 
 Reg. V. Spooner, Murder, etc., 359. 
 
 Reg. V. Stainer, Embezzlement, 133 ; Forgery, 176. 
 
 Reg. V. Stanbury, False Pretences, 170. 
 
 Reg. V. Stanhope, Articles of the Peace, 610. 
 
 Reg. V. Stanton, Rajje, etc., 429. 
 
 Reg. V. Stear, Error and Appeal, 596 ; Larceny, 246. 
 
 Reg. V. Steel, Conspiracy, 112. 
 
 Reg. V. Steels, False Pretences, 153. 
 
 Reg. V. Stephens, Persons capable of Crimes, 17 ; New Trial, 582. 
 
 Reg. V. Stephenson, Evidence, 558 ; Procedure and Practice, 485. 
 
 Reg. V. Stevenson, Adulteration of Pood, 36. 
 
 Reg. V. St. George, Assault and Battery, 47 ; Murder, etc., 355 ; Pro- 
 cedure, 505. 
 
 Reg. V. St. John, Procedure and Practice, 485. 
 
 Reg. V. Stockley, Procedure and Practice, 475. 
 
 Reg. V. Stoke, Larceny, 291. 
 
 Reg. V. Stokes, Error and Appeal, 592 ; Evidence, 543 ; Persons capable 
 of Crimes, 18 ; Procedure and Practice, 483, 488 ; Murder, etc., 
 373. 
 
 Reg. V. Stolady, Perjury, 407, 408. 
 
 Reg. v. Stone, False'Pretences, 168 ; Forgery, 208 ; Perjury, 399 ; Pro- 
 cedure and Practice, 487. 
 
 Reg. V. Stowell, Procedure and Practice, 476. 
 
 Reg. V. Storwood, Crim. Inf., 11. 
 
 Reg. V. Strahan, Paul and Bates, Procedure and Practice, 504. 
 
 Reg. V. Strange, Larceny, 283. 
 
 Reg. V. Stringer, Robbery, 447, 451, 
 
 Reg. V. Stripps, Evidence, 545. 
 
 Reg. V. Stroner, Rape, etc., 433. 
 
 Reg. V. Stroud, Murder, etc., 375. 
 
 Reg. V. Stubbs, EiTor and Appeal, 595 ; Evidence, 562. 
 
 Reg. V. Studd, Error and Appeal, 596 ; Forcible Entry, 172. 
 
 Reg. V. Sturge, Procedure and Practice, 502. 
 
 Reg. V. Sullivan, Murder, etc., 360 ; New Trial, 583. 
 
 Reg. V. Summers, Judgment, etc., 588. 
 
 Reg. v. Sunley, Government Stores, 230. 
 
 Reg. V. Sutcliffe, Evidence, 536. 
 
 Reg. V. Suter, False Pretences, 156. 
 
 Reg. V. Sutton, Larceny, 288. 
 
 Reg. V. Swain, Juries, etc., 524. 
 
 Reg. V. Sweenie, Rape, etc., 429. 
 
 Reg. V. Swindall, Murder, etc., 336, 341. 
 
 Reg. V. Swinnerton, Evidence, 554. 
 
 Reg. V. TafFs, Embezzlement, 132. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. xlv 
 
 Reg. V. Tait, Evidence, 558. 
 
 Reg. V. Tate, Perjury, 410. 
 
 Reg. V. Taunton, Robbery, 449. 
 
 Reg. V. Taylor, Arson, 43, 46 ; Assault and Battery, 48 ; Counsol, 533 ; 
 Evidence, 541, 549, 560, 576; Forgery, 190, 206; Murder, etc., 
 342, 358, 379 ; Procedure and Practice, 476 ; Tiireatening Let- 
 ters, 459. 
 
 Reg. V. Tempest, Procedure and Practice, 508. 
 
 Reg. V. Teste, Counsel, 532. 
 
 Reg. V. Tew, Evidence, 569. 
 
 Reg. v. Thallman, Obscenity, etc., 394. 
 
 Reg. V. Thomas, Counsel, 530; Embezzlement, 127 ; En'or and Appeal, 
 597 ; Larceny, 241 ; Perjury, 415 ; Treasure Trove, 472. 
 
 Reg. V. Thompson, Burglary, 77, 79 ; Conspiracy, 107, 117 ; False Pre- 
 tences, 153 ; Larceny, 236, 253, 257. 
 
 Reg. V. Thorn, Forgery, 208. 
 
 Reg. V. Thornhill, Perjury, 413. 
 
 Reg. V. Thornton, Costs, 621. 
 
 Reg. V. Thorpe, Embezzlement, 126. 
 
 Reg. V. Thristle, Larceny, 234, 238. 
 
 Reg. V. Thiirborn, Larceny, 247. 
 
 Reg. V. Thursfield, Counsel, 531. 
 
 Reg. V. Tiddeman, Threatening Letters, 465. 
 
 Reg. V. Tilson, Bigamy, 62. 
 
 Reg. V. Timmins, Abduction of Women, etc., 33. 
 
 Reg. V. Timothy, Conspiracy, 115. 
 
 Reg. V. Tinkler, Abduction of Women, etc., 33. 
 
 Reg. V. Tippin, Larceny, 293. 
 
 Reg. V. Tite, Embezzlement, 127. 
 
 Reg. V. Tivey, Malicious Injury, 322. 
 
 Reg. V. Toakley, Counsel, 533. 
 
 Reg. V. Tollemache, Articles of the Peace, 609. 
 
 Reg. V. Tollett, Larceny, 252. 
 
 Reg. V. Tolson, Bigamy, 65. 
 
 Reg. V. Tomlinson, Perjury, 396. 
 
 Reg. V. Tongue, Embezzlement, 124, 131. 
 
 Reg. V. Toole, Procedure and Practice, 491 ; Treasure Trove, 473, 
 
 Reg. V. Topping, Bigamy, 61. 
 
 Reg. V. Toshack, Forgery, 175, 220. 
 
 Reg. V. Townley, Persons capable of Crimes, 19. 
 
 Reg. V. Townsend, Embezzlement, 129, 133. 
 
 Reg. V. Trainer, Murder, etc., 344. 
 
 Reg. V. Trebilcock, Error and Appeal, 595 ; Larceny, 238, 247. 
 
 Reg. V. Trenfield, Forgery, 218, 220. 
 
 Reg. V. Trevenner, Larceny, 268. 
 
 Reg. V. Trilloe, Murder, etc., 329. 
 
 Reg. V. Trueman, Bigamy, 65 ; Procedure and Practice, 495 ; Embezzle- 
 ment, 129. 
 
 Reg. V. Tryddyn, Procedure and Practice, 515. 
 
 Reg. V. Tubertield, Evidence, 574. 
 
 Reg. V. Tuckwell, Larceny, 265 ; Principals, etc., 26. 
 
 Reg. V. Tufts, Forgery, 212. 
 
 Reg. V. Tully, False Pretences, 165. 
 
 Reg. V. Turberville, Forgery, 206. 
 
 Digitized by Microsoft® 
 
xlvi TABLE OF CASES, DIGESTED. 
 
 Reg. V. Turner, Coining, 85 ; Concealments of Births, 103; Murder, etc., 
 339 ; Perjury, 415; Poaching, 392; Procedure and Practice, 486. 
 Reg. V. Turpin, Forgery, 189. 
 Reg. V. Tui'ton, Persons capable of Crimes, 21. 
 Reg. V. Tylney, Forgery, 226. 
 
 Reg. V. Tyler, Murder, etc., 350 ; Persons capable of Crimes, 25 ; Princi- 
 pals, etc., 30. 
 Reg. V. Tylney, Evidence, 575 ; Forgery, 212. 
 Reg. V. Tyrie, Embezzlement, 132. 
 Reg. V. Tyson, Perjury, 410. 
 Reg. V. Uezzell, Poaching, 384, 386, 390. 
 Reg. V. Upton, Railways, etc., 427. 
 Reg. V. Upton St. Leonards, Grim. In£, 11, 16. 
 Reg. V. Vaile, Personation, 424. 
 Reg. V. Vamplew, Persons capable of Crimes, 24. 
 Reg. V. Vanderstein, Forgery, 207, 225. 
 Reg. V. -Vaughan, Forgery, 209. 
 Reg. V. Vann, Misdemeanors, 323. 
 Reg. V. Verrier or Virrier, Perjury, 405. 
 Reg. V. Virrier, Procedure and Practice, 501. 
 
 Reg. V. Vincent, Conspiracy, 114'; Evidence, 571 ; Larceny, 291 ; Pro- 
 cedure and Practice, 500 ; Riots, 439. 
 Reg. T. Vivian, Forgery, 206. 
 Reg. V. Vodden, Verdict, 581. 
 Reg. V. Vyse, Persons capable of Crimes, 19. 
 Reg. V. Waddington, Grim. Inf , 16. 
 Reg. V. Wade, Larceny, 295. 
 Reg. V. Wadsworth, Larceny, 233. 
 Reg. V. Wagstaffe, Murder, etc., 368. 
 Reg. V. Waldegrave (Earl), Costs, 617, 619. 
 Reg. V. Walford, Evidence, 562. 
 Reg. V. Walkden, Assault and Battery, 48. 
 
 Reg. V. Walker, Assault and Battery, 50 ; Embezzlement, 126 ; Larceny, 
 305 ; Murder, etc., 364 ; Procedure and Practice, 510 ; Raoe' 
 etc., 433. > i- y 
 
 Reg. V. Walking, Counsel, 531. 
 Reg. V. Walkly, Evidence, 544. 
 
 Reg. V. Wallace, Malicious Injury, 316, 317 ; Procedure and Practice. 
 485, 503. ' 
 
 Reg. V. Waller, Larceny, 244, 258. 
 Reg. V. WalHs, Larceny, 238. 
 Reg. V. Walsh, Evidence, 551. 
 
 Reg. V. Walters, Forgery, 203 ; Murder, etc., 368, 369. 
 Reg. V. Waltham, Murder, etc., 359. 
 Reg. V. Walton, Threatening Letters, 459. 
 
 Reg. V. Ward, Evidence, 554 ; Juries, etc., 528 ; Larceny, 290 302 • 
 Threatening Letters, 466. j> > , 
 
 Reg. V. Warden, Forgery, 189. 
 Reg. V. Wardle, Juries, etc., 521. 
 Reg. V. Wardroper, Larceny, 252. 
 Reg. V. Warman, Murder, etc., 381. 
 Reg. V. Warren, Larceny, 258. 
 Reg. V. Warringham, Evidence, 542, 548. 
 
 Reg. V. Waters, Costs, 614; Murder, etc., 369, 375: ProcedurP nnr? 
 Practice, 491. Digitized by IVticroso ft®' > -f^ioceaure and 
 
TABLE OP CASES, DIGESTED. xlvii 
 
 Reg. V. Watkius, Robbery, 445. 
 
 Reg. V. Watson, Evidence, 555 ; False Pretences, 154; Obscenity, etc., 
 
 .393. 
 Reg. V. Watts, Evidence, 551 ; Larceny, 275, 291. 
 Reg. V. Waverton, Procedure and Practice, 488. 
 Reg. V. Webb, Counsel, 534 ; Error and Appeal, 595 ; Evidence, 567 ; 
 
 Larceny, 242 ; Obscenity, etc., 393. 
 Reg. V. Webster, Larceny, 245, 293 ; Perjuiy, 407, 418 ; Procedure and 
 
 Practice, 501. 
 Reg. V. Weelis, Coining, 92 ; Evidence, 576. 
 Reg. V. Welch, Coining, 84, 95 ; Embezzlement, 129, 138. 
 Reg. v. Weller, Evidence, 551. 
 Reg. v. Wells, Larceny, 259. 
 Reg. V. Welman, False Pretences, 168. 
 Reg. V. Welsh, Evidence, 544. 
 
 Reg. V. Welton, Evidence, 558 ; Procedure and Practice, 501. 
 Reg. V. Wenmouth, Burglary, 77, 78. 
 Reg. V. Wesley, Poaching, 388. 
 
 Reg. V. West, 'Coining, 96; False Pretences, 1 47 ; Forgery, 207, 210 ; 
 Larceny, 248, 277, 299 ; Murder, etc., 354 ; Procedure and Prac- 
 tice, 493. 
 Reg. V. Western, Poaching, 385 ; Procedure and Practice, 502. 
 Reg. V. Westley, Assault and Battery, 57 ; Perjury, 410 ; Procedure and 
 
 Practice", 488, 500. 
 Reg. V. Whalley, Juries, etc., 527. 
 Reg. V. Wheater, Forgery, 227. 
 Reg. V. Wheatland, Perjury, 412. 
 Reg. V. Wheeldon, Burglary, 68, 69. 
 Reg. V. Wheeley, Evidence, 547. 
 Reg. V. Whiley, Bigamy, 64. 
 Reg. V. White, Counsel, 532 ; Embezzlement, 123 ; Evidence, 549, 561, 
 
 562; Forgery, 187, 188, 204; Larceny, 254, 277, 307. 
 Reg. V. Whitehead, Burglary, 77 ; Evidence, 566 ; Larceny, 294 ; Mur- 
 der, etc., 345. 
 Reg. V. Whitehouse, Conspiracy, 116, 117 ; New Trial, 583, 584; Per- 
 jury, 407. 
 Reg. V. Whiteman, Malicious Injury, 319, 321. 
 Reg. V. Whittield, Persons capable of Crimes, 22. 
 Reg. V. Whittaker, Apprehension and Arrest, 606 ; Poaching, 384, 386. 
 Reg. V. Whittingham, Malicious Injury, 315. 
 Reg. V. Whitvrorth, Murder, etc., 377. 
 Reg. V. Whybrow, Peijury, 415. 
 Reg. V. Whyte, Forgery, 183. 
 Reg. V. Wicker, Evidence, 558, 
 Reg. V. Wickham, False Pretences, 160. 
 Reg. V. Wiggins, Evidence, 550. 
 Reg. V. Wiley, Larceny, 295. 
 Reg. V. Wilkins, Murder, etc., 352 ; Robbery, 450. 
 Reg. V. Wilkinson, Evidence, 547. 
 Reg. V. Wilks, Costs, 619. 
 
 Reg. V. Williams, Bail, 611 ; Coining, 93; Concealment of Births, 105 ; 
 
 Costs, 617; Error and Appeal, 596; Evidence, 559, 560; Forgery, 
 
 203, 206, 219, 229; Larceny, 247, 275, 282 ; Malicious Injui7,319, 
 
 321 ; Murder, etc., 351 ; Rape, etc., 429 ; Threatening Letters, 466. 
 
 Digitized by Microsoft® 
 
xlviii TABLE OF CASES, DIGESTED. 
 
 Reg. V. Williamson, False Pretences, 151. 
 
 Reg. V. Willis, Murder, etc, 375. 
 
 Reg. V. Willmett, Government Stores, 231. 
 
 Reg. V. Willmer, Grim. Inf., 5. 
 
 Reg. V. Willson, Larceny, 241. 
 
 Reg. V. Wilshaw, Evidence, 557. 
 
 Reg. V. Wilson, Bigamy, 63 ; Costs, 618 ; Evidence, 559 ; Forgery, 174, 
 
 176, 188 ; Larceny, 250, 302 ; Murder, etc., 353 ; Procedure and 
 
 Practice, 476, 491. 
 Reg. V. Wilton, Evidence, 559 ; Forgery, 208. 
 Reg. V. Winbow, Larceny, 290. 
 Reg. V. Windsor, Evidence, 542. 
 Reg. V. Winnall, Embezzlement, 125. 
 Reg. V. Winslow, Murder, etc., 330. 
 Reg. V. Winterbottom, Forgery, 182. 
 Reg. V. Withers, Procedure and Practice, 476. 
 Reg. V. Wollez, In re Hart, Larceny, 309. 
 Reg. V. Wolverhampton, Recorder, Obscenity, etc., 393. 
 Reg. v. Wood Ditton, Procedure, 475. 
 Reg. v. Wood, Larceny, 247, 307 ; Poaching, 388, 391 ; Procedure and 
 
 Practice, 475, 483. 
 Reg. V. Woods, Counsel, 531. 
 Reg. V. Woodhead, Evidence, 570. 
 Reg. v. Woodward, Larceny, 251, 296. 
 Reg. V. Woolley, Embezzlement, 130, 131, 136 ; Error and Appeal, 597; 
 
 False Pretences, 147. 
 Reg. V. Woolmer, Crim. Inf., 4, 5. 
 Reg. V. Worley, Perjury, 410. 
 
 Reg. V. Wortley, Burglary, 73 ; Embezzlement, 121 ; Larceny, 290. 
 Reg. V. Wright, Concealment of Births, 103 ; Larceny, 257 ; Murder, 
 
 etc., 330 ; Procedure and Practice, 500 ; Rape, etc., 430. 
 Reg. V. Wycherley, Juries, etc., 521 ; Murder, etc., 354. 
 Reg. V. Wynn, Larceny, 261, 264. 
 
 Reg. V.Yates, Conspiracy, 111; Peijury, 397, 417; Threatening Let- 
 ters, 465. 
 Reg. V. Yeadon, Assault and Battery, 53 ; Murder, etc., 362. 
 Reg. V. York, Larceny, 248; Verdict, 581. 
 Reg. V.Young, Duelling, 118; Evidence, 553, 567; Larceny, 263; 
 
 Murder, etc., 334 ; Prize Fights, 425 ; Procedure and Practice, 
 
 495. 
 Reg. V. Yscuado, Counsel, 529. 
 Reg. V. Zeigert, Forgery, 181. 
 Reg. V. Zulueta, Procedure and Practice, 505. 
 Reg. V. , Coining, 95 ; Concealment of Births, 105 ; Costs, 617 ; 
 
 Obscenity, etc., 394. 
 Reynolds, Ex parte. Poaching, 392. 
 
 Rex V. , Procedure and Practice, 489. 
 
 Rex V. Abgood, Threatening Letters, 465. 
 
 Rex V. Abingdon, (Lord) Crim. Inf., 2. 
 
 Rex V. Abraham, Procedure and Practice 477 
 
 Rex V. Abrahat, Larceny, 289. 
 
 Rex V. Adams Larceny, 239, 250, 289 ; Procedure and Practice, 516. 
 
 Rex V. Addis, Murder, etc., 331. 
 
 Rex V. Adey, Evidence, 573. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. xlix 
 
 Rex V. Aiokles, Forgery, 174 ; Larceny, 240, 306. 
 
 Rex V. Airey, False Preteiaces, 146. 
 
 Rex V. Allen, Larceny, 283 ; Murder, etc., 342 ; Procedure and Practice, 
 
 485 ; Sodomy, etc., 456. 
 Rex V. Allison, Bigamy, 59. 
 Rex V. Amey, Larceny, 284. 
 Rex V. Anderson, Murder, etc., 339. 
 Rex V. Andrews, Poaching, 385, 390. 
 Rex V. Antrobus, Murder, etc., 383. 
 Rex V. Appleby, Evidence, 544. 
 
 Rex V. Archer, Crim. Inf., 15 ; Persons capable of Crimes, 22. 
 Rex V. Aris, Arson, 43. 
 Rex V. Arscott, Forgery, 208, 224. 
 Rex V. Ashburn, Perjury, 419. 
 Rex V. Ashton, Malicious Injury, 311. 
 Rex V. Askew, New Trial, 584. 
 Rex V. Aslett, Embezzlement, 137 ; Larceny, 276. 
 Rex V. Ast, Evidence, 567. 
 Rex V. Asterley, False Pretences, 149. 
 Rex V. Astley, Robbery, 446. 
 Rex V. Athay, Crim. Inf., 8. 
 Rex V. Athea, Burglary, 74. 
 Rex V. Atkins, Procedure and Practice, 473. 
 Rex V. Atkinson, Forgery, 184 ; Murder, etc., 358. 
 Rex V. Ayes, Murder, etc., 339. 
 Rex V. Aylett, Perjury, 395, 405. 
 Rex V. Backler, Forgery, 188. 
 Rex V. Badcock, Forgery, 214. 
 Rex V. Bailey, Burglary, 67, 74 ; Murder, etc., 347. 
 Rex V. Baker. Forgery, 202 ; Robbery, 447. 
 Rex V. Baldwin, Principals, etc., 30. 
 Rex V. Ball, Arson, 44. 
 
 Rex V. Ball, Forgery, 227 ; Murder, etc., 331 ; Perjury, 422. 
 Rex V. Balls, Forgery, 228. 
 Rex V. Bamfield, Forgery, 204. 
 Rex V. Bangor, (Bishop), Riots, 440. 
 Rex V. Banks, Larceny, 245. 
 Rex V. Barham, Poaching, 385. 
 Rex V. Barker, Crim. Inf., 8 ; Rape, etc., 434. 
 Rex V. Barnard, Evidence, 563 ; False Pretences, 148. 
 •Rex V. Barnes, Costs, 615. 
 
 Rex V. Barnett, Procedure and Practice, 495, 518. 
 Rex V. Barratt, Crim. Inf., 11. 
 
 Rex V. Barrett, Costs, 621 ; Procedure and Practice, 505. 
 Rex V. Bartlett, Evidence, 544 ; Malicious Injury, 313. 
 Rex V. Barton, Forgery, 219. 
 Rex v. Bartrum, Costs, 621. 
 Rex V. Bass, Embezzlement, 123. 
 Rex V. Batt, Riot, 443. 
 Rex V. Battery, Forgery, 212. 
 Rex V. Baxter, Larceny, 302. 
 Rex V. Baylis, Crim. Inf., 8. 
 Rex V. Beacall, Embezzlement, 123, 137, 138. 
 Rex V. Beardmore, Bail, 612 ; Procedure and Practice-, 508. 
 Fish. Dig.— D. Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. 
 
 Rex V. Beavan, Forcible Entry, 170. 
 
 Rex V. Beckett, Murder, etc., 359. 
 
 Rex V. Beechey, Embezzlement, 128. 
 
 Rex V. Beezely, Evidence, 571. 
 
 Rex V. Bell, Coining, 93 ; Evidence, 546. 
 
 Rex V. Belstead, Larceny, 289. 
 
 Rex V. Benesech, Perjury, 396. 
 
 Rex V. Benfield, Assault and Battery, 53 ; Crim. Inf., 2, 6. 
 
 Rex V. Bennett, Burglary, 71. 
 
 Rex V. Benson, Perjury, 411. 
 
 Rex V. Bentley, Evidence, 546. 
 
 Rex V. Bigg, Forgery, 177. 
 
 Rex V. Billingham, Piize Fights, 425. 
 
 Rex T. Bingley, Fprgery, 215 ; Robbery, 448. 
 
 Rex V. Birch, Forgery, 220. 
 
 Rex V. Birdseye, Larceny, 305. 
 
 Rex V. Birkett, Evidence, 563 ; Forgery, 183, 184, 216, 223. 
 
 Rex V. Birmingham, Bigamy, 60. 
 
 Rex V. Birt, Riots, 439. 
 
 Rex V. Bishop, Crim. Inf., 9. 
 
 Rex V. Bispham, Evidence, 574. 
 
 Rex V. Bitton, Procedure and Practice, 504. 
 
 Rex V. Blackham, Robbeiy, 446. 
 
 Rex V. Blackson, Piincipals, etc., 29. 
 
 Rex V. Blick, Larceny, 279, 306. 
 
 Rex V. Boby, Costs, 614. 
 
 Rex V. Dodle, Evidence, 571. 
 
 Rex V. Bolland, Forgery, 184. 
 
 Rex V. Boltz, Judgment, etc., 589 ; New Trial, 584. 
 
 Rex V. Bomaster, Bail, 612. 
 
 Rex V. Bonner, Murder, etc., 376. 
 
 Rex V. Bontien, Forgery, 174. 
 
 Rex V. Booker, Bail, 611. 
 
 Rex V. Bootyman, Embezzlement, 138. 
 
 Rex V. Booth, Murder, etc., 370. 
 
 Rex V. Borrett, Embezzlement, 134. 
 
 Rex V. Boucher, Threatening Letters, 464. 
 
 Rex V. Boulton, Larceny, 292. 
 
 Hex V. Bourne, Murder, etc., 339. 
 
 Rex V. Bowditch, New Trial, 584. 
 
 Rex V. Bower, False Pretences, 153. 
 
 Rex V. Bowes, Articles of the Peace, 607. 
 
 Rex V. Bowman, Procedure and Practice, 513, 514 
 
 Rex V. Bowyer, Malicious Injury, 317. 
 
 Rex V. Box, Forgeiy, 183. 
 
 Rex V. Boyce, Murder, etc., 364. 
 
 Rex V. Bradbury, Evidence, 547. 
 
 Rex V. Brady, Murder, etc., 382. 
 
 Rex v. Braithwaite, Bail, 611. 
 
 Rex V. Bramley, Larceny, 245. 
 
 Rex V. Brangan, Procedure and Practice, 480. 
 
 Kex V. Brannan, Forgery, 229. 
 
 Rex V. Brasier, Rape, etc., 438. 
 
 Rex V. Brazier, Larceny, 246. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. 
 
 Rex V. Brewer, Evidence, 575 ; Forgery, 217. 
 
 Rex V. Brice, Burglary, 68 ; Connsel, 532 ; New Trial, 582. 
 
 Rex V. Briggs, Murder, etc., 360, 361. 
 
 Rex V. Bright, Apprehension and Arrest, 604. 
 
 Rex V. Brinklett, Procedure and Practice, 492. 
 
 Rex V. Brisac, Procedure and Practice, 482. 
 
 Rex V. Britton, Procedure and Practice, 496. 
 
 Rex V. Brodribb, Perjury, 422. 
 
 Rex V. Brooke, Bail, 612 ; Costs, 620. 
 
 Rex V. Brooks, Larceny, 288. 
 
 Rex V. Brown,' Burglary 67, 69, 72 ; Evidence,. 570 ; Murder, etc., 338 ; 
 
 Personation, 424 ; Procedure and Practice, 490 ; Robbery, 446. 
 Rex V. Browne, Perjury, 413, 414. 
 Rex V. Brunswick, Larceny, 289. 
 Rex V. Brunton, Evidence, 563. 
 Rex V. Bull, Crim. Inf., 14. 
 
 Rex V. Bunts, Crim. Inf., 14 ; Judgment, etc., 589. 
 Rex V. Burbon, New Trial, 582. 
 Rex V. Burdett, Crim. Inf., 6, 14. 
 
 Rex V. Burgiss, Forgery. 217 ; Procedure and Practice, 518. 
 Rex V. Burke, Crim. Inf., 5 ; Forgery, 183. 
 Rex V. Bum, Crim. Inf., 14. 
 Rex V. Burnett,' Sanitary Laws, 453. 
 Rex V. Burrowes, Burglary, 70. 
 Rex V. Burrows, Rape, etc., 431. 
 Rex V. Burton, Embezzlement, 125. 
 Rex V. Bush, Principals, etc., 27. 
 Rex V. Butler, Misdemeanors, 325 ; Rape, etc., 437. 
 Rex V. Butteris, Principals, etc., 31. 
 Rex V. Butterworth, Burglary, 81. 
 Rex V. Bykerdyke, Conspiracy, 108, 109. 
 Rex V. Byrne, Crim. Inf , 14. 
 Rex V. Cabbage, Larceny, 236. 
 Rex V. Cadman, Murder, etc., 351, 354. 
 Rex V. Callan, Burglary, 69. 
 Rex V. Callanan, Perjury, 399. 
 Rex V. Camfield, Burglary, 74. 
 Rex V. Campbell, Larceny, 239. 
 Rex V. Cannon, Robbery, 447. 
 Rex V. Capewell, Poaching, 384. 
 Rex V. Carlile, Bail, 612 ; Error and Appeal, 591. 
 Rex V. Carney, Forgery, 203. 
 
 Rex V. Carr, Embezzlement, 122 ; Murder, etc., 336, 355. 
 Rex V. Carradice, Larceny, 285. 
 Rex V. Carrill, Burglary, 71. 
 Rex V. Carroll, Larceny, 265. 
 Rex V. Carson, Embezzlement, 137. 
 Rex V. Carter, Forgery, 217, 222. 
 
 Rex V. Cartwright, False Pretences, 159 ; Misdemeanors, 325. 
 Rex V. Case, Coining, 85. 
 Rex V. Cass, Evidence, 537. 
 Rex V. Catapodi, Ii»rgery, 216. 
 Rex V. Cave, Rape, etc., 431. 
 Rex v. Chadwick, False Pretences, 167. 
 
 Digitized by Microsoft® 
 
Hi TABLE OF CASES, DIGESTED. 
 
 Rex V. Chalking, Burglary, 70. 
 
 Rex V. Ohalkley, Malicious Injury, 323. 
 
 Rex V. Chamberlain, Procedure and Practice, 476, 512. 
 
 Rex Y. Chaniberlayne, Costs, 620. 
 
 Rex V. Chapijel, Crim. Inf., 10 ; Evidence, 548. 
 
 Rex V. Chappie, Malicious Injury, 322. 
 
 Rex V. Chard, Larceny, 299. 
 
 Rex V. Charlewood, Larceny, 236. 
 
 Rex V. Chatbum, Procedure and Practice, 494. 
 
 Rex V. Checketts, Procedure and Practice, 489. 
 
 Rex V. Cheere, Assault a,nd Battery, 49. 
 
 Rex V. Cheeseman, Murder, etc., 346. 
 
 Rex V. Cherry, Larceny, 236, 237. 
 
 Rex V. Child, Riots, 439. 
 
 Rex V. Chipchase, Embezzlement, 122. 
 
 Rex T. Christie, Murder, etc., 378. 
 
 Rex V. Chubb, Malicious Injury, 313. 
 
 Rex V. Cirwan, Coining, 89. 
 
 Rex V. Clark, Larceny, 276 ; Murder, etc., 374 ; Procedure and Practice, 
 
 491, 512, 517. 
 Rex V. Clark alias Jones, Procedure and Practice, 509. 
 Rex V. Clarke, Evidence, 538 ; Rape, etc., 433. 
 Rex V. Clay, Larceny, 288. 
 Rex V. Clayburn, Burglary, 71. 
 Rex V. Clement, Procedure and Practice, 519. 
 Rex V. Clewes, Evidence, 539, 548 ; Murder, etc., 380. 
 Rex V. Clinch, Forgery, 202. 
 Rex V. Coates, Murder, etc., 356. 
 Rex V. Cochrane (Lord), New Trial, 584. 
 Rex V. Cockshaw, Crim. Inf., 16. 
 Rex V. Codrington, False Pretences, 154. 
 Rex V. Cohen, New Trial, 582 ; Peijury, 396. 
 Rex V. Cole, Evidence, 576 ; Sodomy, etc., 456. 
 Rex V. Coleman, False Pretences, 146. 
 Rex V. CoUett, Burglary, 75. 
 Rex V. Colley, Evidence, 570. 
 Rex V. Collicott, Forgery, 198. 
 Rex V. Collier, Forgery, 195. . 
 Rex V. Collins, Treason, 468, 470, 471. 
 Rex V. ColKson, Murder, etc., 340. 
 Rex V. Comer, Burglary, 81. 
 
 Rex V. Compton, Burglary, 79, 81 ; Crim. Inf., 11. 
 Rex V. Conner, Murder, etc., 338. 
 Rex V. Constable, Judgment, etc., 590. 
 Rex V. Coogan, Forgery, 212. 
 Rex V. Cook, Larceny, 281. 
 Rex V.Cooke Evidence, 568; Judgment, etc., 585; Penury 414- 
 
 Procedure and Practice, 509. ' •' •'' ' 
 
 Rex V. CQoper, Arson, 37 ; Evidence, 545; Principals, etc., 27. 
 Rex V. Corden, Larceny, 286. f 7 , • 
 
 Rex V. Cornwall, Concealments of Births 103 
 Rex V. Coslet, Larceny, 237. 
 Rex V. Coveney, Evidence, 556. 
 Rex V. Cowell, Larceny, 302. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. liii 
 
 Rex V. County, Larceny, 260. 
 
 Ilex V. Court, Evidence, 545. 
 
 Rex V. Cox, Murder, etc., 358 ; Perjury, 406 ; Riots, 441. 
 
 Rex V. Coxon, Procedure and Practice, 518. 
 
 Rex V. Cozens, Crim. Inf., 7. 
 
 Rex V. Cozins, Rape, etc., 431 ; Sodomy, etc., 456. 
 
 Rex V. Cramp, Personation, 424. 
 
 Rex V. Craven, Larceny, 300. 
 
 Rex V. Crespigny, Perjury, 396. 
 
 Rex V. Crick, Poaching, 390. 
 
 Rex V. Crisp, Particular Offences, 622. 
 
 Rex V. Crocker, Forgery, 174, 222. 
 
 Rex V. Crockett, Murder, etc., 378. 
 
 Rex V. Crookes, Procedure and Practice, 476. 
 
 Rex V. Crossley, False Pretences, 159 ; Perjury, 398. 
 
 Rex V. Crowther, Forgery, 188, 220. 
 
 Rex V. Crump, Larceny, 280. 
 
 Rex V. Crunden, Obscenity, etc., 393. 
 
 Rex V. Crutchley, Malicious Injury, 313 ; Persons capable of Crimes, 25. 
 
 Rex V. Culkin, Murder, etc., 372. 
 
 Rex V. CuUen, Forgery, 203. 
 
 Rex V. Cundick, Sepulture, 455. 
 
 Rex V. Curling, Larceny, 269. 
 
 Rex V. Curran, Murder, etc., 332. 
 
 Rex V. Curvan, Murder, etc., 340. 
 
 Rex V. Dade, Forgery, 215. 
 
 Rex V. Dale, False Pretences, 146. 
 
 Rex V. Daman, Larceny, 286. 
 
 Rex V. Dann, Larceny, 297. 
 
 Rex V. Dannelly, Burglary, 76. 
 
 Rex V. Davis, Burglary, 7t, 72 ; Concealment of Births, 104 ; Counsel, 
 530 ; Evidence, 545 ; Forgery, 214 ; Larceny, 279 ; Murder, etc., 
 340, 364 ; Poaching, 387 ; Principals, etc., 26 ; Procedure and 
 Practice, 486, 488, 497. 
 
 Rex V. Dawber, Evidence, 563. 
 
 Rex V. Dawson, Forgery, 177, 216 ; Rape, etc., 437. 
 
 Rex V. Deakin, Larceny, 289. 
 
 Rex V. De Berenger, Conspiracy, 106, 109. 
 
 Rex V. Deeley, Bigamy, 64. 
 
 Rex V. Deering, Evidence, 574. 
 
 Rex V. Delamotte, Treason, 468. 
 
 Rex V. Delaval, Conspiracy, 107. 
 
 Rex V. Delondo, Malicious Injury, 316. 
 
 Rex V. Dennison, Crim. Inf., 2. 
 
 Rex V. Deusley, Larceny, 306. 
 
 Rex V. Depardo, Murder, etc., 347. 
 
 Rex V. Derrington, Evidence, 538. 
 
 Rex V. Despard, Judgment, etc., 589 ; Juries, etc., 524. 
 
 Rex V. De Veaux, Larceny, 308. 
 
 Rex V. Dewhurst, Costs, 616. 
 
 Rex V. Dewsnap, Costs, 616. 
 
 Rex V. De Yonge, Coining, 87. 
 
 Rex V. Dickinson, Larceny, 237 ; Juries, etc., 521. 
 
 Rex V. Dicks, Persons capable of Crimes, 22. 
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liv TABLE OF CASES, DIGESTED. 
 
 Rex T. Dillon, Forcible Entry, 172. 
 
 Rex V. Dingier, Murder, etc., 378. 
 
 Rex V. Dixon, Adulteration of Food, 36 ; Larceny, 268 ; Murder, etc., 
 329 ; Perjury, 423. 
 
 Rex V. Dobbs, Burglary, 79. 
 
 Rex V. Dodd, Evidence, 563. 
 
 Rex V. Doherty, Articles of the Peace, 607. 
 
 Rex V. Dolby, Juries, etc., 526. 
 
 Rex V. Donnally, Robbery, 447.- 
 
 Rex V. Donnelly, Forgery, 220. 
 
 Rex V. Donnevan, Arson, 89. 
 
 Rex V. Donnison, Grim. Inf., 4. 
 
 Rex V. Doran, Arson, 45 ; Procedure and Practice, 495. 
 
 Rex V. Douglas, Concealment of Births, 104 ; False Pretences, 165. 
 
 Rex V. Dowlin, Perjury, 404, 412. 
 
 Rex V. Downey, Apprehension and Arrest, 606. 
 
 Rex V. Dowsell, Poaching, 385. 
 
 Rex V. Doyle, Murder, etc., 382. 
 
 Rex V. Draper, Crim. Inf., 15. 
 
 Rex V. Drnmmond, Murder, etc., 378. 
 
 Rex V. Duffin, Murder, etc., 364 ; Sepulture, 455 ; Sodomy, etc., 456. 
 
 Rex V. Dunkley, Threatening Letters, 465. ■ 
 
 Rex V. Dunn, Evidence, 542; Forgery, 174, 184; Larceny, 306; Per- 
 jury, 406 ; Procedure and Practice, 516. 
 
 Rex V. Dunnage, False Pretences, 154. 
 
 Rex Y. Dunnett, Forgery, 218. 
 
 Rex V. Dunston, Perjury, 396. 
 
 Rev V. Dyer, Principals, etc., 25. 
 
 Rex V. Dyson, Murder, etc, 333, 363. 
 
 Rex V. Ealing, Murder, etc., 347. 
 
 Rex V. Eastall, Larceny, 292. 
 
 Rex V. Eccles, Conspiracy, 108. 
 
 Rex V. Eden, Crim. Inf , 13. 
 
 Rex V. Edmeads, Murder, etc., 331. 
 
 Rex V. Edmonds, Juries, etc., 524, 536. 
 
 Rex V. Edmunds, Evidence, 548. 
 
 Rex V. Edward, Robbery, 448. 
 
 Rex V. Edwards, Bigamy, 59 ; Juries, etc., 523 ; Larceny, 266, 286,300 ; 
 Perjury, 395 ; Robbery, 448, 451. 
 
 Rex V. Egerton, Robbery, 448. 
 
 Rex V. Egginton, Burglary, 71 ; Larceny, 247. 
 
 Rex V. Eldershaw, Rape, etc., 430. 
 
 Rex V. Eldridge, Evidence, 535. 
 
 Rex V. Eliot, Forgery, 177. 
 
 Rex V. Elliott, Forgery, 174. 
 
 Rex V. EUicombe, Arson, 45. 
 
 Rexv.Ellis,Evidence, 544, 576; Judginent, etc., 590; Procedure and 
 Practice, 495, 498; Punishment, 599. 
 
 Rex V. Ellison, Arson, 40. 
 
 Rex V. Ellor, Forgery, 204. 
 
 Rex V. Elmstead, Robbery, 447. 
 
 Rex V. Else, Coining, 97. 
 
 Rex V. Elsworth, Forgery, 217. 
 
 Rex V. Emden, Procedure and Practice, 512. 
 
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TABLE OF CASES, DIGESTED. It 
 
 i 
 
 Rex V. England, Evidence, 552, 566. 
 
 Rex V. Enoch, Evidence, 542 ; Murder, etc., 329. 
 
 Rex V. Esop, Persons capable of Crimes, 23. 
 
 Rex V. Esser, Threatening Letters, 465. 
 
 Rex V. Etherington, Larceny, 266. 
 
 Rex V. Evans, Forgery, 203 ; Murder, etc., 327 ; Treason, 468. 
 
 Rex V. Eve, Crim. Inf., 4. 
 
 Rex V. Fagent, Murder, etc., 376, 379. 
 
 Rex V. Fagg, Evidence, 551. 
 
 Rex V. Fallows, Evidence, 555 ; Robbery, 448. 
 
 Rex V. Farrell, Larceny, 237. 
 
 Rex V. Farrington, Arson, 45. 
 
 Rex V. Fauntleroy, Forgery, 200. 
 
 Rex V. Fawcett, Forgery, 195. 
 
 Rex V. Fearnley, Procedure and Practice, 486, 514. 
 
 Rex V. Ferguson, Conspiracy, 109 ; Murder, etc., 345. 
 
 Rex V. Fidler, Malicious Injury, 313. 
 
 Rex V. Field, Forgery, 198. 
 
 Rex V. Fielder, New Trial, 584. 
 
 Rex V. Fieldhouse, Procedure and Practice, 477 ; Riots, 442. 
 
 Rex V. Fielding, Crim, Inf , 2, 8, 9. 
 
 Rex V. Filewood, Costs, 620.' 
 
 Rex V. Finacane, Assault and Battery, 53 ; Poaching, 390. 
 
 Rex V. Finch, Larceny, 279. 
 
 Rex V. Finmore, Costs, 620. 
 
 Rex V. Fitzgerald, Forgery, 213. 
 
 Rex V. Fitzpatrick, Punishment, 599. 
 
 Rex V. Flannagan, Burglary, 71. 
 
 Rex V. Fleet, Crim. Inf., 3. 
 
 Rex V. Flemming, Rape, etc., 435. 
 
 Rex V. Fletcher, Evidence, 579 ; Larceny, 245 ; Murder, etc.,. 383. 
 
 Rex V. FUnt, False Pretences, 160. 
 
 Rex V. Flower, Bail, 612. 
 
 Rex V. Folkes, Rape, etc., 432. 
 
 Rex V. Forbes, Forgery, 186, 226. 
 
 Rex V. Ford, Apprehension and Arrest, 603 ; Murder, etc., 332 ; N"ew 
 Trial, 584 ; Procedure and Practice, 494. 
 
 Rex V. Forsgate, Larceny, 292. 
 
 Rex V. Forsyth, Procedure and Practice, 494. 
 
 Rex V. Foster, Coining, 92; Evidence, 548; Murder, etc., 381; Per- 
 jury, 402. 
 
 Rex V. Fowler, Judgment, etc., 585. 
 
 Rex V. Frances, Crim. Inf., 5. 
 
 Rex V. Francis, Forgery, 185. 
 
 Rex V. Franks, Coining, 96. 
 
 Rex V. Eraser, Bigamy, 64 ; Murder, etc., 363. 
 
 Rex V. Fray, Murder, etc, 338. ' 
 
 Rex V. Freeman, Embezzlement, 125. 
 
 Rex V. Freeth, False Pretences, 160. 
 
 Rex V. French, Burglary, 74. 
 
 Rex V. Friar, Crim. Inf, 12. 
 
 Rex V. Friend, Murder, etc., 367, 371. 
 
 Rex V. Froude, Forgery; 194. 
 
 Rex V. Fry, Larceny, 299 : Poaching, 387. 
 
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Ivi TABLE OF CASES, DIGESTED. 
 
 Rex V. Puller, Burglary, 72 ; Coining, 94 ; Evidence, 555 ; Procedure 
 and Practice, 495 ; Robbery, 447, 
 
 Rex V. Furnival, Burglary, 81. 
 
 Rex V. Pursey, Riots, 439. 
 
 Rex V. Gaby, Larceny, 293. 
 
 Rex V. Gade, Forgery, 200. 
 
 Rex V. Gabagan, Treason, 470. 
 
 Rex V. Gainer, Poaching, 385. 
 
 Rex V. Gardenei', Murder, etc., 363. 
 
 Rex V. Gardner, Robbery, 447. 
 
 Rex V, Garratt, Poaching, 393. 
 
 Rex V. Garside, Murder, etc., 383. 
 
 Rex y. Gascoigne, Counsel, 530 ; Robbery, 448. 
 
 Rex V. Gay, Murder^ etc., 380. 
 
 Rex V. Gibbons, Burglary, 70 ; Evidence, 542. 
 
 Rex V. Gibson, Burglary, 70; Forgery, 196, 212 ; Procedure and Prac- 
 tice, 509, 515. 
 
 Rex V. Gilbert, Larceny, 240. 
 
 Rex V. Gilbie, Costs, 616. 
 
 Rex V. Gilchrist, Forgery, 216. 
 
 Rex V. Giles, Forgery, 224. 
 
 Rex V. Gilham, Evidence, 543 ; Procedure and Practice, 519. 
 
 Rex V. Gilkes, Procedure and Practice, 474. 
 
 Rex V. Gill, Conspiracy, 109. 
 
 Rex y. Gillbrass, Larceny, 281. 
 Rex y. Gilles, Sepulture, 455. 
 Rex V. Gillow, Murder, etc., 364. 
 Rex V. Girdwood, Threatening Letters, 458, 465, 466. 
 Rex V. Glandfield, Arson, 44. 
 Rex V. Glenn, Procedure and Practice, 476. 
 Rex V. Glover, Poaching, 393. 
 Rex V. Gnosil, Robbery, 447. 
 Rex V. Gogerly, Burglary, 79. 
 Rex V. Goldstein, Forgery, 183, 217. 
 Reg V. Goodfellow, Poaching, 384. 
 Rex V. Goodhall, False Pretences, 146. 
 
 Rex V. Gordon, Abduction of Women, etc., 35 ; Bigamy, 64 ; Murder, 
 etc., 332, 380 ; Persons capable of Crimes, 24 ; Principals, etc.', 
 30 ; Treason, 468. 
 Rex V. Gotley, Particular Offences, 622. ' 
 
 Rex V. Gough, Procedure and Practice, 496. 
 Rex V. Gourlay, Persons capable of Crimes, 21. 
 Rex V. Gowan, Arson, 37. 
 Rex V. Grady, Evidence, 556. 
 
 Rex V. Graham, Forgery, 194 ; Procedure and Practice, 492. 
 Rex V. Gramger, Procedure and Practice, 509. 
 Rex V. Gray, Conspiracy, 105 ; Rape, etc., 432. 
 
 Rex V. Green, Crim. Inf , 12 ; Evidence, 536, 545 ; Murder, etc., 342 
 Rex v. Greenacre, Murder, etc., 327 ; Principals, etc., 28. 
 Rex V. Grice, Poaching, 386. 
 Rex V. Griifen, Evidence, 537. 
 Rex V. Grimes, Larceny, 300. 
 
 Rex V. Groombridge, Persons capable of Crimes, 24. 
 Rex V. Grosvenor, Crim. Lif., 12. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. Ivii 
 
 Rex V. Grounsell, Murder, etc., 372. 
 Rex V. Grout, Murder, etc., 341. 
 Rex V. Grove, Embezzlement, 137, 138. 
 Rex V. Haines, Burglary, 68. 
 Rex V. Hailey, Peijury, 398. 
 Rex V. Hake, Forcible Entry, 173. 
 ■ Rex V. Hall, Burglary, 68 ; Embezzlement, 122, 124, 130 ; Murder, etc., 
 
 383 ; Robbery, 448. 
 Rex V. Halloway, Lai-ceny, 301. 
 Rex V. Halton, Procedure and Practice, 504. 
 Rex V. Hamilton, Conspiracy, 113. 
 Rex V. Hammon, Embezzlement, 122 ; False Pretences, 163 ; Larceny, 
 
 237. 
 Rex V. Hammond, Conspiracy, 113 ; Threatening Letters, 465. 
 Rex^'. Hampstead, Procedure and Practice, 496. 
 Rex V. Hampton, Forgery, 187. 
 Rex V. Hancock, Burglary, 70. 
 Rex V. Handley, Procedure and Practice, 497. 
 Rex V. Hankey, Crim. Inf., 13. 
 Rex V. Hanks, Perjury, 403. 
 Rex V. Hann, Crim. Inf., 8 ; Judgment, etc., 585. 
 Rex V. Harding, Larceny, 240. 
 Rex V. Hardy, Treason, 470. 
 Rex V. Hargrave, Evidence, 563. 
 Rex V. Harley, Murder, etc., 851. 
 Rex V. Harmwood, Rape, etc., 432. 
 
 .Rex V. Harrie, Threatening Letters, 466. / 
 
 Rex V. Harris, Arson, 37 ; Burglary, 72 ; Coining, 85. 
 Rex V. Harries, Crim. Inf., 9 ; Evidence, 546 ; Forgery, 194, 217, 224, 
 
 225, 228 ; Murder, etc., 355, 360; Perjury, 406; Procedure and 
 
 Practice, 486, 494 ; Sanitary Laws, 452. 
 Rex V. Harrison, Crim. Inf , 14 ; Forgery, 209 ; Larceny, 252. 
 Rex V. Hart, Forgery, 184, 226 ; Larceny, 276 ; Procedure and Practice, 
 
 488. 
 Rex V. Hartel, Counsel, 530. 
 Rex V. Hartley, Embezzlement, 124. 
 Rex V. Harvey, Crim. Inf., 6 ; Forgery, 209 ; Evidence, 535 ; Larceny, 
 
 280. 
 Rex V. Hassell, Costs, 620. 
 
 Rex V. Hastings, Evidence, 563 ; Malicious Injury, 316. 
 Rex v. Haswell, Crim. Inf., 4 ; Escape, Rescue, etc., 600, 601. 
 Res! V. Haughton, Arson, 40 ;. Malicious Injury, 322. 
 Rex V. Hawdon, Costs, 616. 
 Rex V. Hawkeswood, Forgery, 183, 226. 
 Rex V. Hawkins, Burglary, 76 ; Robbery, 448. 
 Rex V. Haworth, Forgery, 226. 
 Rex V. Haydon, Judgment, etc., 585 ; Larceny, 254. 
 Rex V. Haynes, Arson, 36 ; Procedure and PracticCj 477. 
 Rex V. Hayward, Murder, etc., 326, 376. 
 Rex V. Haywood, Malicious Injury, 322. 
 Rex V. Healey, Procedure and Practice, 488. 
 Rex V. Headge, Embezzlement, 124. 
 Rex V. Hearne, Evidence, 544. 
 Rex V. Heath, Coining, 94. 
 
 Digitized by Microsoft® 
 
Iviii TABLE OF CASES, DIGESTED. 
 
 Rex V. Hedges, Coining, 86 ; Larceny, 279. 
 
 Rex V. Helsham, Murder, etc., 347. 
 
 Rex V. Heming, Crim. Inf., 10 ; TJireatening Letters, 459 ; Rolbbery, 
 448. 
 
 Rex V. Hemp, Perjury, 412. 
 
 Rex v. Hems, Murder, etc., 333. 
 
 Rex V. Hempstead, Procedure and Practice, 496. 
 
 Rexv. Hench, False Pretences, 163. 
 
 Rex V. Hensey, Evidence, 579 ; Treason, 468. 
 
 Rex V. Hepper, Procedure and Practice, 477. 
 
 Rex V. Herbert, Crim. Inf., 11. 
 
 Rex V. Hevey, Evidence, 579 ; Forgery, 187, 228. 
 
 Rex V. Heydon, Costs, 615 ; Crim. Inf., 16. 
 
 Rex V. Hill, False Pretences, 145, 167. 
 
 Rex V. Hickman, Larceny, 279 ; Murder, etc., 381 ; Robbery, 447 ; Threat- 
 ening Letters, 462. 
 
 Rex V. Higgins, Evidence, 549. 
 
 Rex V. Higley, Concealment of Births, 103. 
 
 Rex V. Hill, Juries, etc., 526 ; MaUcious Injury, 312 ; Rape, etc., 431. 
 
 Rex V. Hind, Bigamy, 60. 
 
 Rex V. Hindmarsh, Murder, etc., 380. 
 
 Rex V. Hoare, Forcible Entry, 173. 
 
 Rex v. Hobson, Embezzlement, 137. 
 
 Rex V. Hodges, Larceny, 272, 273. 
 
 Rex v. Hodgkiss, Evidence, 574. 
 
 Rex V. Hodgson, Embezzlement, 122, 138 ; Murder, etc., 326 ; Rape, etc., 
 434. 
 
 Rex V. Holden, Forgery, 222, 224 ; Procedure and Practice, 486. 
 
 Rex V. Holland, Crim. Inf , 8. 
 
 Rex V. Hollingberry, Conspiracy, 106, 109 ; New Trial, 582, 584. 
 
 Rex V. Hollingshead, Evidence, 547. 
 
 Rex V. Hollis, Procedure and Practice, 474. 
 
 Rex V. Holloway, Articles of the Peace, 607. 
 
 Rex V. Holt, Articles of the Peace, 609 : Murder, etc., 356, 357 ; New 
 Trial, 583. » ^ > > 
 
 Rex y. Home, Crim. Inf., 6. 
 
 Rex V. Hood, Evidence, 567 ; Murder, etc., 340. 
 
 Rex V. Hope, Forgery, 198, 210, 218. 
 
 Rex v. Hopes, Evidence, 547. 
 
 Rex v. Horner, Larceny, 240. 
 
 Rex V. Home Took, Treason, 470. 
 
 Rex V. Horwell, Forgery, 216. 
 
 Rex V. Hough, Forgery, 227. 
 
 Rex V. Howard, Perjury, 412. 
 
 Rex V. Howarth, False Pretences, 164. 
 
 Rex V. Howe, Malicious Injury, 318 ; Threatening Letters, 466. 
 
 Rex V. Howell, Larceny, 244. 
 
 Rex V. Howes, Error and Appeal, 593 ; Evidence, 545. 
 
 Rex v. Hewlett, Murder, etc., 360. 
 
 Rex V. Howorth, Murder, etc., 359. 
 
 Rex V. Hubson, Murder, etc., 326. 
 
 Rex V. Hucks, Murder, etc., 376. 
 
 Rex V. Hudson, Larceny, 300. 
 
 Rex V. Huet, Forgery, 227. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. lix 
 
 • ^ 
 
 Rex V. Hughes, Burglary, 67; Embezzlement, 124; Malicious Injury, 
 322 ; Murder, etc., 357 ; Persons capable of Crimes, 22 ; Rape, 
 etc., 431 ; Riots, 441 ; Verdict, 681. 
 
 Rex V. Hugill, Larceny, 268. 
 
 Rex V. Hungerford, Burglary, 81. 
 
 Rex V. Hunt, Apprehension and Arrest, 603; Conspiracy, 114; Crim. 
 Inf., 12; Juries, etc., 526 ; Murder, etc., 358; New Trial, 583; 
 Procedure and Practice, 486 ; Riots, 439. 
 
 Rex V. Hunter, Forgery, 209, 225, 226. 
 
 Rex V. Hutchins, Malicious Injury, 313. ' 
 
 Rex V. Hutchinson, Larceny, 292 ; Murder, etc., 378. 
 
 Rex V. Ingleton, Costs, 616. 
 
 Rex V. Ipswich, Cftm. Inf., 14. 
 
 Rex V. Isaac, Arson, 37. 
 
 Rex V. Isaacs, Coining, 85. 
 
 Rex V. Isherwood, Ci-im. Inf., 12. 
 
 Rex V. Jackson, Crim. Inf., 7 ; False Pretences, 159 ; Larceny, 241 ; 
 Rape, etc., 429 ; Robbery, 447. 
 
 Rex V. Jacobs, Bigamy, 61 ; Sodomy, etc., 456. 
 
 Rex v. Jagger, Evidence, 567. 
 
 Rex V. James, Forgery, 221, 223 ; Riots, 442. 
 
 Rex V. Jarvis, Burglary, 74 ; Murder, etc., 356 ; Principals, etc., 28. 
 
 Rex V. Jellias, Treason, 470. 
 
 Rex V. Jenkins, Burglary, 75 ; Evidence, 535. 
 
 Rex Y. Jenks, Burglary, 80. 
 
 Rex V. Jennings, Rape, etc., 431. 
 
 Rex V. Jenson, Embezzlement, 130. 
 
 Rex V. Jepson, Threatening Letters, 463. 
 
 Rex V. Jervis, Larceny, 302. 
 
 Rex V. Jobling, Burglary, 75. 
 
 Rex V. John, Evidence, 548 ; Larceny, 271 ; Murder, etc., 376. 
 
 Rex V. Johnson, Burglary, €7 ; Costs, 615 ; Embezzlement, 136 ; Proced- 
 ure and Practice, 515. 
 
 Rex V. Johnston, Procedure and Practice, 476. 
 
 Rex V. Joliffe, Crim. Inf , 12. 
 
 Rex T. Jollie, Crim. Inf., 13. 
 
 Rex V. JolHffe, Crim. Inf., 2, 14. 
 
 Rex V. Jones, Bail, 611 ; Costs, 615 ; Crim. Inf., 8 ; Embezzlement, 138 ; 
 Evidence, 538, 547, 549, 563, 569, 579 ; Forgery, 174, 202, 209, 
 216 ; Larceny, 264, 277 ; Perjury, 411 ; Procedure and Practice, 
 495, 508, 518 ; Robbery, 447. 
 
 Rex'v. Jordan, Burglary, 69, 79. 
 
 Rex V. Joyce, Coining, 86. 
 
 Rex V. Judd, Arson, 42. 
 
 Rex V. Kelly, Coining, 96 ; Murder, etc., 373 ; Principals, etc., 25. 
 
 Rex V. Kelsey, Costs, 614. 
 
 Rex V. Kendrick, Poaching, 384. 
 
 Rex V. Kennet, Riots, 440. 
 
 Rex V. Kenworthy, Bail, 612 ; Punishment, 599. 
 
 Rex V. Kernon, Larceny, 302. 
 
 Rex V. Kessal, Murder, etc., 339. 
 
 Rex V. Killminster, Poaching, 389. 
 
 Rev V. Kinder, Forgery, 174. 
 
 Digitized by Microsoft® 
 
Ix TABLE OF CASES, DIGESTED, 
 
 . i 
 
 Rex V. King, Forgery, 187 ; Principals, etc., 27 ; Procedure and Prac- 
 tice, 486. 
 
 Rex V. Kingston, Evidence, 540 ; Procedure and Practice, 514. 
 
 Rex V. Kinnear, Juries, etc., 521 ; New Trial, 582. 
 
 Rex V. Kinnfersley, Crim. Inf., 2. 
 
 Rex V. Kinsey, Procedure and Practice, 518. 
 
 Rex V. Kirkwood, Forgery, 215, 223. 
 
 Rex V. Kirwan, Duelling, 118. 
 
 Rex V. Kitchen, Murder, etc. 356. 
 
 Rex r. Knewland, Robbery, 446. 
 
 Rex V. Knight, Burglary, 76 ; Persons capable of Crimes, 22. 
 
 Rex V. Knill, Perjury, 416. 
 
 Rex V. Kroehl, Procedure and Practice, 506. 
 
 Rex V. Lad, Murder, etc., 372. 
 
 Rex V. Lafone, Conspiracy, 113. 
 
 Rex V. Lamb, Juries, etc., 526. 
 
 Rex V. Lambe, Evidence, 535 ; Juries, etc., 526. 
 
 Rex V. Lancashire, Justices, Crim. Inf., 13. 
 
 Rex V. Land, Lord, Crim. Inf., 12. 
 
 Rex V. Lapier, Robbery, 447. 
 
 Rex V. Lara, False Pretences, 158, 164. 
 
 Rex V. Larrieu, Crim. Inf., 10. 
 
 Rex V. Laugher, Persons capable of Crimes, 22. 
 
 Rex V. Lavj', Coining, 85. 
 
 Rex V. Lawrence, Burglary, 69. 
 
 Rex v. Lea, Procedure and Practice, 513. 
 
 Rex V. Leadbitter, Larceny, 309. 
 
 Rex V. Lee, Evidence, 563 ; Perjury, 41 6 ; Principals, etc., 28. 
 
 Rex V. Leech, Embezzlement, 123. 
 
 Rev V. Leefe, Perjury, 405, 420. 
 
 Rex V. Leigh, Larceny, 237, 300. 
 
 Rex V. Lennard, Coining, 93: 
 
 Rex V. Levy, Conspiracy, 115 ; Larceny, 234. 
 
 Rex V. Lewis, Burglary, 67 ; Evidence, 545 ; Forgery, 200 ; Malicious In- 
 jury, 319 ; Murder, etc., 351. 
 
 Rex V. Lithgo, Burglary, 71. 
 
 Rex V. Lloyd, Evidence, 537 ; Judgment, etc., 588 ; Murder, etc., 378 ; 
 Rape, etc., 431, 435 ; Robbery, 449 ; Threatening Letters, 465. 
 
 Rex V. Locker, Conspiracy, 113. 
 
 Rex V. Lockett, Forgery, 188 ; Poaching, 385. 
 
 Rex V. Longden, Murder, etc., 328. 
 
 Rex V. Longstreeth, Larceny, 240. 
 
 Rex V. Lord George Gordon, Treason, 468, 469. 
 
 Rex V. Lovel, Murder, etc., 356. 
 
 Rex V. Lovelass, Perjury, 422. 
 
 Rex V. Lovell, Embezzlement, 133 ; Forgery, 216. 
 
 Rex V. Lynch, Murder, etc., 338. 
 
 Rex V. Lynn, Procedure and Practice, 506. 
 
 Rex V. Lyon, Forgery, 191, 209. 
 
 Rex V. Lyons, Burglary, 72. 
 
 Rex V. M'Carther, Perjury, 405, 412. 
 
 Rex V. Macarty, False" Pretences, 162. 
 
 Rex V. Macaulay, Robbery, 446. 
 
 Rex V. Macdaniel, Murder, etc., 327.' 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. Ixi 
 
 Rex V. Macdonald, Procedure and Practice, 476. 
 
 Rex V. Mac Intosh, Forgery, 176, 205. 
 
 Rex V. M'Growther, Persons capable of Crimes, 24 ; Treason, 468. 
 
 Rex V. Mackerel, Malicious Injury, 312. 
 
 Rex V. M'Makin, Principals, etc., 25. 
 
 Rex V. M'Namee, Larceny, 244. 
 
 Rex V. Madan, Punishment, 699. 
 
 Rex V. Madox, Larceny, 245. 
 
 Rex V. Magle, Malicious Injury, 322. 
 
 Rex V. Major, Threatening Letters, 462. 
 
 Rex V. Mallinson, Larceny, 286. 
 
 Rex V. Manners, Coining, 95. 
 
 Rex V. March, Arson, 44. 
 
 Rex V. Margetts, Burglary, 75. 
 
 Rex V. Marks, Perjury, 423. 
 
 Rex V. Marsden, Counsel, 533. 
 
 Rex V. Marsh, False Pretences, 162; Juries, etc., 520; Procedure and 
 
 Practice, 487. 
 Rex V. Marshall, Crim. Inf., 9 ; Forgery, 185 ; Procedure and Practice, 
 
 488. 
 Rex V. Martin, Burglary, 70 ; Escape, Rescue, etc., 601 ; Forgery, 209, 
 
 218, 221 ; Larceny, 289 ; Murder, etc., 335, 374 ; Personation, 
 
 424 ; Rape, etc., 433. 
 Rex V. Mason, Embezzlement, 141 ; False Pretences, 165 ; Murder, etc., 
 
 327 ; Robbery, 447. 
 Rex V. Mastin, Murder, etc., 341. 
 Rex V. Mathews, Procedure and Practice, 495. 
 Rex V. Mattos, Murder, etc., 348; 
 
 Rex V. Mawbey, Conspiracy, 109 ; Crim. Inf., 15 ; Kew Trial, 581, 583. 
 Rex V. May, Forgery, 216 ; Procedure and Practice, 488. 
 Rex V. Mayhew, Perjury, 417. 
 Rex V. Maynard, Burglary, 75. 
 Rex T. Mazagora, Forgery, 221. 
 Rex V. Mead, Embezzlement, 137; Larceny, 276 ; Murder, etc., 375, 378; 
 
 Perjury, 413. 
 Rex V. Meakin, Persons capable of Crimes, 23. 
 Rex V. Meilheim, Larceny, 241. 
 Rex V. Mercier, Procedure and Practice, 504. 
 Rex V. Meredith, Murder, etc., 370. 
 Rex V. Messingham, Larceny, 297. 
 Rex V. Metcalf, Larceny, 254. 
 
 Rex V. Middlesex, Justices, Prgcedure and Practice, 480. 
 Rex V. Miles, Crim. Inf , 4. 
 Rex V. Millar, Procedure and Practice, 485. 
 Rex V. Millard, Forgery, 227. 
 Rex V. Miller, Punishment, 599, 
 Rex V. Mills, Evidence, 541. 
 
 Rex V. Milton, Assault and "Battery, 51 ; Search Warrants, 606. 
 Rex V. Mitchell, False Pretences, 152 ; Forgery, 202, 204. 
 Rex V. Mitton, Assault and Battery, 51 ; Search Warrants, 606. 
 Rex V. Moate, Costs, 620. 
 Rex V. Moffatt, Forgery, 183. 
 Rex V. Mogg, Malicious Injury, 323. 
 
 Digitized by Microsoft® 
 
Ixii TABLE OP CASES, DIGESTED. 
 
 Rex V. Moore, Coining, 93; Evidence, 576; False Pretences, 162; Per- 
 jury, 423 ; Robbery, 447. 
 Rex V. Morfit, Larceny, 251. 
 Rex T. Morgan, Crim. Inf., 1,14; Evidence, 569. 
 Rex V. Morris, Forgery, 214 ; Perjury, 411 ; Persons capable of Crimes, 
 
 22 ; Procedure and Practice, 487, 
 Rex V. Morrison, Murder, etc., 382. 
 Rex V. Morton, Forgery, 183, 226. 
 Rex V. Mosey, Evidence, 537. 
 Rex V. Mosley, Murder, etc., 372, 375. 
 Rex V. Mott, Malicious Injury, 322. 
 Rex V. Mountford, Murder, etc., 356. 
 . Rex V. Mucklow, Larceny, 278. 
 Rex V. Mulreaty, Sodomy, etc., 456. 
 Rex V. Munday, Larceny, 279. 
 Rex V. Munton, Perjury, 412. 
 Rex V. Murphy, Murder, etc., 339. 
 Rex V. Murray, Embezzlement, 122, 137. 
 Rex V. Murrow, Murder, etc., 361. 
 Rex V. Mytton, Procedure and Practice, 474. 
 Rex V. Napper, Procedure and Practice, 490. 
 Rex V. Nash, Arson, 37 ; Poaching, 386. 
 Rex V. Neal, Evidence, 564. 
 Rex V. Nettleton, Embezzlement, 125. 
 Rex V. Newill, Arson, 44, 45. 
 Rex V. Nibbs, Larceny, 300. 
 Rex V. Nichol, Assault and Battery, 47. 
 Rex V. Nicholl, Perjury, 408. 
 Rex V. Nicholls, Conspiracy, 109. 
 Rex V. Nicholson, Larceny, 237 ; Murder, etc., 372. 
 Rex V. Nixon, Burglary, 73. 
 Rex V. Noakes, Evidence, 5C3. 
 Rex V. Norris, Burglary, 70 ; Conspiracy, 107. 
 Rex V. North, Arson, 44. 
 Rex V. Norton, Procedure and Practice, 491. 
 Rex V. Nottingham, Costs, 619. 
 Rex V. Nottingham Journal, Critn. Inf., 13. 
 Rex V. Oakley, Forcible Entry, 171. . 
 Rex V. O'Donnell, Procedure ^nd Practice, 518. 
 Rex V. Offord, Persons capable of Crimes, 17. 
 Rex V. Ogden, Forgery, 199. 
 Rex V. Ogilvie, Larceny, 299. 
 Rex v. O'Gorman Mahon, Judgment, etc., 590. 
 Rex V. Oldfield, Procedure and Practice, 480. 
 Rex V. Oliver, Larceny, 240. 
 Rex V. Orrell, Counsel, 530. 
 Rex V. Osborn, Procedure and Practice, 473, 517 
 Rex V. Osborne, Costs, 620. 
 Rex V. Osmer, Assault and Battery, 53. 
 
 Rex V. Owen Lai-oen'y, 265 ; Persons capable of Crimes, 24; Poaching, 
 o90 ; Pnncipals, etc., 25. ^' 
 
 Rex V. Owens, Malicious Injury, 322. 
 R,ex V. Oxford, Coining, 92. 
 Rex V. Paddle, Threatening Letters, 466. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED, Ixiii 
 
 Rex V. Paine, Burglary, 67 ; Costs, 614. 
 
 Rex V. Palmer, Coining, 86 ; Forgery, 177, 224 ; Larceny, 26/; Poach- 
 ing, 387. 
 Rex V. Pavfait, Robbery, 451. 
 
 Rex V. Parker, Burglary, 70; Coining, 94 ; Larceny, 279, 289. 
 Rex V. Parkes, Forgery, 174 ; Larceny, 239. 
 Rex V. Parkin, Larceny, 303 ; Verdict, 580. 
 
 Rex V. Parkins, Counsel, 632. 
 
 Rex V. Parnell, Articles of the Peace, 607. 
 
 Rex T. Parr, Personation, 428. 
 
 Rex V. Parratt, Evidence, 540. 
 
 Rex V. Parrott, Arson, 40. 
 
 Rex V. Parry, Juries, etc., 524 ; Procedure and Practice, 512. 
 
 Rex V. Partridge, Evidelice, 538 ; Larceny, 250. 
 
 Rex V. Pasman, Costs, 616. 
 
 Rex V. Passey, Poaching, 386. 
 
 Rex V. Patch, False Pretences, 162. 
 
 Rex V. Pateman, Forgery, 183. 
 
 Rex V. Patience, Murder, etc., 341. 
 
 Rex Y. Patrick, Burglary, 80 ; Malicious Injury, 318 ; Persons capable 
 of Crimes, 23 ; Procedure and Practice, 492. 
 
 Rex V. Patty, Malicious Injury, 322. 
 
 Rex V. Paul, Procedure and Practice, 516. 
 
 Rex V. Payne, Murder, etc., 361 ; Poaching, 388. 
 
 Rex V. Peace, Assault and Battery, 54. 
 
 Rex V. Peach, Crim. Inf., 13. 
 
 Rex V. Peacock, Forgery, 185. 
 
 Rex V. Pear, Larceny, 280. 
 
 Rex V. Pearce, Larceny, 261. 
 
 Rex V. Pearson, Evidence, 556 ; Larceny, 262. 
 
 Rex V. Peat, Robbery, 446. 
 
 Rex v. Pedley, Perjury, 395. 
 
 Rex V. Pelfryman, Robbery, 449. 
 
 Rex V. Penpraze, Procedure and Practice, 486. 
 
 Rex V. Penson, Bigamy, 60. 
 
 Rex V. Pepys, Perjury, 396. 
 
 Rex V. Perkes, Burglary, 67. 
 
 Rex V. Perkins, Larceny, 303 ; Prize Fights, 425. 
 
 Rex V. Perry, Abduction of Women, etc., 35. 
 
 Rex V. Phillips, Coining, 92; Duelling, 118 ; Larceny, 280; Murder, 
 etc., 354 ; Procedure and Practice, 488. 
 
 Rex V. Philip, Malicious Injuiy, 316. 
 
 Rex V. Phipoe, Larceny, 276. 
 
 Rex V. Pickford, Threatening Letters, 458. 
 
 Rex V. Pike, Larceny, 269 ; Murder, etc., 379. 
 
 Rex V. Piller, Procedure and Practice, 482. 
 
 Rex V. Pim, Forgery, 198 ; Procedure and Practice, 495. 
 
 Rex V. Pinkerton, Crim. Inf., 15.- 
 
 Rex V. Pinney, Riots, 440. 
 
 Rex V. Pitman, Larceny, 280. 
 
 Rex V. Plant, Procedure and Practice, 513. 
 
 Rex V. Piatt, Procedure and Practice, 517. 
 
 Rex V. Plumer, Evidence, 578. 
 
 Rex V. Plymouth, (Mayor) Crim. Inf., 2, 
 
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Ixiv TABLE OF CASES, DIGESTED. 
 
 Rex r. liollman, Conspiracy, 107. 
 Rex V. Post, Forgery, 177. 
 Rex V. Potts, Personation, 424. 
 Rex V. Poulton, Murder, etc., 329, 374. 
 
 Rex V. Powell, Costs, 613 ; Evidence, 569 ; Forgery, 218, 220 ; Rape, 
 etc., 432. 
 
 Rex V. Powles, Murder, etc., 352. 
 
 Rex V. Pratly, Larceny, 245. 
 
 Rex V. Pratt, Larceny, 240. 
 
 Rex V. Pressly, Evidence, 546. 
 
 Rex V. Price, Coining, 96; Perjury, 420; Persons capable of Crimes, 
 22 ; Poaching, 388 ; Riots, 443. 
 
 Rex V. Prince, Embezzlement, 141. 
 
 Rex V. Pringle, Forgery, 200. 
 
 Rex V. Pritchard, Persons capable of Crimes, 21. 
 
 Rex V. Probert, Arson, 37. 
 
 Rex V. Pr.oby, Grim. Lif., 12. 
 
 Rex V. Prosser, Burglary, 75. 
 
 Rex V. Prowes, Larceny, 270. 
 
 Rex V. Puckering, Larceny, 300. 
 
 Rex V. Radclilfe, Counsel, 533 ; Juries, etc., 524. 
 
 Rex V. Randall, Forgery, 183. 
 
 Rex V. Raukin, Murder, etc., 338. 
 
 Rex V. Ratcliife, Procedure and Practice, 504. 
 
 Rex V. Ravenscroft, Forgery, 204. 
 
 Rex V. Rawlins, Burglary, 79 ; Larceny, 288. 
 
 Rex V. Rawson, Costs, 615. 
 
 Rex V. Reader, Arson, 45. 
 
 Rex V. Reading, Evidence, 548 ; Forgery, 217, 
 
 Rex V. Reane, Robbery, 446. 
 
 Rex V. Reculist, Forgery, 183. . 
 
 Rex V. Redfern, Procedure and Practice, 481. 
 
 Rex V. Redman, Procedure and Practice, 488. 
 
 Rex V. Reed, Evidence, 546 ; False Pretences, 158. 
 
 Rex V. Reekspear, Rape, etc., 431 ; Sodomy, etc., 456. 
 
 Rex V. Rees, Burglary, 74 ; Evidence, 548 ; Larceny, 264. 
 
 Rex V. Reeves, Forgery, 223. 
 
 Rex V. Remnant, Larceny, 289. 
 
 Rex V. Reynell, New Trial, 582. 
 
 Rex V. Rhodes, Forgery, 213. 
 
 Rex V. Rice, Duelling, 118; Forgery, 218. 
 
 Rex V. Richards, Costs, 615 ; Evidence, 538 ; Forgery, 205 ; Larceny, 
 279 ; Perjury, 406 ; Procedure and Practice, 490. 
 
 Rex V. Richardson, Burglary, 73 ; Conspiracy, 109 ; Larceny, 295 ■ Pro- 
 cedure and Practice, 496. 
 
 Rex V. Rioketts, Murder, etc., 363. 
 
 Rex V. Rickman, Arson, 44. 
 
 Rex V. Ridgelay, Coining, 93. 
 
 Rex V. Ridley, Murder, etc., 368, 369, 370 ; Poaching, 390. 
 
 Rex V. Righton, Costs, 615. 
 
 Rex V. Ring, Evidence, 568. 
 
 Rex V. Rispal, Conspiracy, 106. 
 
 Rex V. Rivers, Evidence, 547. 
 
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TABLE OF CASES, DIGESTED. Ixv 
 
 Rex V. Roberts, Burglary, 67; Conspiracy, 113; Larceny, 290; Pro- 
 cedure and Practice, 504.' 
 
 Rex V. Robey, Costs, 614. 
 
 Rex V. Robins, Robbery, 446. 
 
 Rex ▼. Robinson, Burglary, 68 ; Coining, 97 ; Conspiracy, 106 ; Crim. 
 Inf., 1, 14 ; Larceny, 261 ; Threatening Letters, 461, 466. 
 
 Rex V. Robson, False Pretences, 162. 
 
 Rex V. Roche, Procedure and Practice, 512. 
 
 Rex V. Roderick, Misdemeanors, 325. 
 
 Rex V. Rodgers, Burglary, 74 ; Crim. Inf., 12 ; Procedure and Practice, 
 507. 
 
 Rex V. Rokeby, Murder, etc., 329. 
 
 Rex V. Rooney, Procedure and Practice, 518 ; Robbery, 450. 
 
 ■Rex V. Rosenstein, Evidence, 580. 
 
 Rex y. Rosinski, Asfalut and Battery, 47. 
 
 Rex V. Ross, Malicious Injury, 318. 
 
 Rex V. Rosser, Juries, etc., 521. 
 
 Rex V. Rough, Larceny, 300. 
 
 Rex V. Rourke, Burglary. 73. 
 
 Rex V. Row, Evidence, 537. 
 
 Rex V. Rowland, Procedure and Practice, 506. 
 
 Rex V. Rowley, Forgery, 227, 228 ; Perjury, 412. 
 
 Rex V. Royce, Principals, etc., 28. 
 
 Rex V. Rudd, Evidence, 564. 
 
 Rex V. Rushworth, Forgery, 194, 220. 
 
 Rex V. Russell, Burglary, 67, 69 ; Murder, etc., 334. 
 
 Rex V. Russen, Rape, etc., 431. 
 
 Rex v. Rust, Burglary, 67. 
 
 Rex V. Ryan, Murder, etc., 361. 
 
 Rex V. Sadi, Principals, etc., 27. 
 
 Rex V. Sadler, Evidence, 568 ; Larceny ,»286. 
 
 Rex V. Salisbury, Larceny, 262. 
 
 Rex V. Salmon, Arson, 44. 
 
 Rex V. Salter, Bail, Oil ; Conspiracy, 113. 
 
 Rex V. Satirist, Crim. Inf., 14. 
 
 Rex V. Saunders, Murder, etc., 367, 370. 
 
 Rex V. Savage, Juries, etc., 523 ; Larceny, 305. 
 
 Rex V. Sawyer, Murder, etc., 3.^3, 347. 
 
 Rex V. Scaife, Murder, etc., 380. 
 
 Rex V. Scalbert, Juries, etc., 523. 
 
 Rex V. Scott, Larceny, 293 ; Riots, 440. 
 
 Rex V. Scudder, Murder, etc., 354. 
 
 Rex V. Scally, Murder, etc., 329. 
 
 Rex V. Seaford, (Justices) Crim. Inf., 7. 
 
 Rex V. Searle, Persons capable of Crimes, 18. 
 
 Rex V. Searing, Larceny, 288. 
 
 Rex V. Sears, Larceny, 245. 
 
 Rex V. Sefton, Burglary, 70. 
 
 Rex V. Self, Murder, etc., 369. 
 
 Rex V. Sellers, Murder, etc., 375. 
 
 Rex V. Sellis, Murder, etc., 329. 
 
 Rex V. Semple, Larceny, 237, 244. 
 
 Rex V. Senior, Murder, etc., 330. 
 
 Rex V. Serjeant, Evidence, 567. 
 
 Fish. Dig.— E. Digitized by Microsoft® 
 
]svi TABLE OF CASES, DIGESTED. 
 
 liex V. Seton, Error and Appeal, 590. 
 
 Rex V. Seward, Conspiracy, 106. 
 
 Rex V. Sexton, Evidence, 538. 
 
 Rex V. Shadbolt, Murder, etc., 360. 
 
 Rex V. Shakspeare, Procedure and Practice, 509. 
 
 Rex V. Sharpless, Larceny, 240. 
 
 Rex V. Sharpness, Crim. Lif., 15. 
 
 Rex V. Sharwin, Murder, etc., 872. 
 
 Rex V. Shaw, Bail, Gl 1 ; Escape, Rescue, etc., 601 ; Evidence, 538 ; 
 Murder, etc., 327. 
 
 Rex V. Sheard, Murder, etc., 361. 
 
 Rex V. Sheen, Procedure and Practice, 511. 
 
 Rex V. Sheering, Costs, 615. 
 
 Rex V. Shepherd, Evidence, 542 ; Forgery, 204. 
 
 Rex V. Sheppard, Forgery, 222, 227 ; Juries, ^tc, 524. 
 
 Rex V. Sherrington, Larceny, 292. 
 
 Rex y. Shukard,' Forgery, 224. 
 
 Rex V. Simmonds, Evidence, 570 ; Larceny, 281. 
 
 Rex V. Simons, Evidence, 544, 556; Robbery, 446. 
 
 Rex V. Simpson, Evidence, 535 ; Murder, etc., 345. 
 
 Rex V. Skerritt, Coining, 97. 
 
 Rex V. Slavey, Evidence, 573, 579. 
 
 Rex V. Slaughter, Evidence, 542. 
 
 Rex V. Smith, Arson, 45 ; Assault and Battery, 47 ; Burglary, G8, 69, 72 ; 
 Coining, 97 ; Crim. Inf., 9 ; Embezzlement, 127 ; Evidence, 551, 
 567 ; Forger, 199 ; Larceny, 280, 281, 293, 298 ; Murder, etc., 326, 
 370, 374; Poaching, 386 ; Principals, etc., 30 ; Procedure and Prac- 
 tice, 477,495, 496; Robbery, 449. 
 
 Rex V. Smithson, Crim. Inf., 15. 
 
 Rex V. Smyth, Burglary, 74; Evidence, 571 ; Forcible Entry, 171. 
 
 Rex V. Snell, Concealment of Births, 103. 
 
 Rex V. Snow, Murder, etc., 338. 
 
 Rex V. Snowley, Embezzlement, 124. 
 
 Rex V. Scares, Forgery, 214; Principals, etc., 27. 
 
 Rex V. Somerton, Larceny, 289. 
 
 Rex V. Southern, Poaching, 386. 
 
 Rex V. Southerton, Threatening Letters, 464. 
 
 Rex V. Sparrow, Crim. Inf., 15. 
 
 Rex V. Spears, Larceny, 289. 
 
 Rex V. Spencer, Bail, 612 ; Embezzlement, 124; Evidence, 542 ; False 
 Pretences, 160 ; Perjury, 411 ; Robbery, 446. 
 
 Rex V. Spiller, Murder, etc., 345, 381. 
 
 Rex V. Spilsbury, Evidence, 537, 546 ; Murder, etc., 376. 
 
 Rex V. Spragg, Judgment, etc., 590. 
 
 Rex V. Spriggins, Crim. Inf., 12. 
 
 Rex V. Squire, Embezzlement, 124 ; Murder, etc., 367. 
 
 Rex V. Stallion, Arson, 37, 40. 
 
 Rex y. Standley, Principals, etc., 25. 
 
 Rex V. Stannard, Counsel, 532. 
 
 Rex V. Stanton, Larceny, 309. 
 
 Rex V. St. Botolph, Bishopsgate, Crim. Inf , 12. 
 
 Rex V. Steel, Procedure and Practice, 504. 
 
 Rex V. Steptoe, Evidence, 549. 
 
 Rex V. Sterling, Forgery, 212. 
 
 Digitized by Microsoft® 
 
TABLE OP CASES, DIGESTED. Ixvii 
 
 Rex V. Stevens, Judgment, etc., 585 ; Perjury, 406 ; Procedure and Prac- 
 tice, 488. 
 
 Rex V. Stevenson, Procedure and Practice, 508. 
 
 Rex V. Steward, Grim. Inf., 1. 
 
 Rex V; Stewart, Coining, 94 ; Forgery, 215. 
 
 Rex V. St. John Delpike, Bigamy, 60. 
 
 Rex V. St. John Long, Murder, etc., 344, 345, 381. 
 
 Rex V. St. Michael, Juries, etc., 521. 
 
 Rex V. Stock, Burglary, 70 ; Larceny, 254. 
 
 Rex V. Stokes, Escape, Rescue, etc., 601. 
 
 Rex V. Stone, Particular Offences, 622 ; Treason, 468, 470. 
 
 Rex V. Storr, Procedure and Practice, 473. 
 
 Rex V. Story, False Pretences, 146 ; Forgery, 186. 
 
 Rex V. Stoveld, Perjury, 414. 
 
 Rex V. Stratton, Crim. In£, 2. 
 
 Rex V. Stroud, Larceny, 281. 
 
 Rex V. Suffolk, Justices, Verdict, 581. 
 
 Rex V. Sullens, Embezzlement, 123 ; Larcepy, 256. 
 
 Rex V. Sullivan, Murder, etc., 338. 
 
 Rex V. Sulls, Larceny, 292. 
 
 Rex V. Sutcliffe, Punishment, 599. 
 
 Rex V. Sutton, Coining, 93 ; Crim. Inf., 6 ; Judgment, etc., 589 ; Juries, 
 etc., 524 ; New Trial, 582 ; Procedure and Practice, 515. 
 
 Rex V. Swallow, Burglary, 68. 
 
 Rex V. Swatkins, Arson, 45 ; Evidence, 548. 
 
 Rex V. Szudurskie, Forgery, 217. 
 
 Rex V. Tacey, Malicious Injury, 312. 
 
 Rex V. Taft, Forgery, 185. 
 
 Rex V. Taggart, Verdict, 580. 
 
 Rex V. Tannet, Personation, 424. 
 
 Rex V. Taplin, Robbery, 446. 
 
 Rex V. Tarrant, Crim. Inf., 11; Evidence, 547. 
 
 Rex V. Tattersall, Forgery, 227. 
 
 Rex V. Taverncr, Forgery, 227. 
 
 Rex V. Taylor, Arson, 40 ; Embezzlement, 137 ; Forgery, 184 ; Larceny, 
 265, ,289; Malicious Injury, 318; Murder, etc., 336, 338, 357; 
 Principals, etc., 30 ; Procedure and Practice, 512. 
 
 Rex V. Teague, Forgery, 184. 
 
 Rex V. Teal, Costs, 621 ; New Trial, 584. 
 
 Rex V. Telicote, Evidence, 546. 
 
 Rex V. Testick, Forgery, 219. 
 
 Rex V. T^mas, Evidence, 536, 537, 547, 556 ; Forgery, 204, 209, 223 ; 
 Larceny, 265, 302 ; Murder, etc., 333, 338 ; Persons capable of 
 Crimes, 23 ; Procedure and Practice, 495 ; Riots, 443 ; Robbery, 
 451. 
 
 Rex V. Thompkins, Costs, 616. 
 
 Rex V. Thompson, Burglary, 72, 79 ; Evidence, 537 ; Forgery, 219 ; 
 Larceny, 266, 303 ; Murder, etc., 340, 364, 373. 
 
 Rex V. Thorley, Embezzlement, 127. 
 
 Rex V. Thornton, Evidence, 535. 
 
 Rex V. Thorpe, Murder, etc., 339. 
 
 Rex V. Tibshelf, Bigamy, 60. 
 
 Rex V. Timmins, Murder, etc., 341, 381. 
 
 Rex V. Tinckler, Evidence, 565. 
 
 Digitized by Microsoft® 
 
Ixviii TABLE OF CASES, DIGESTED. 
 
 Rex V. Tinkler, Murder, etc., 376. 
 
 Rex V. Tippet, Evidence, 535. 
 
 Rex V. Tipping, Juries, etc., 526. 
 
 Rex V. Todd, Larceny, 289. 
 
 Rex V. Tolfree, Larceny, 252. 
 
 Rex V. Tomlinson, Murder, etc., 372 ; Poaching, 388. 
 
 Rex Y. Tottenham, Arson, 43. 
 
 Rex V. Towle, Procedure and Practice, 495. 
 
 Rex V. Trapshaw, Burglary, 74. 
 
 Rex V. Treble, Forgery, 177. 
 
 Rex V. Treeve, Murder, etc., 370. 
 
 Rex V. Tregarthen, Articles of the Peace, 607.. 
 
 Rex V. Treharne, Procedure and Practice, 490. 
 
 Rex V. Tremaine, Procedure and Practice, 477 ; Costs, 620 ; New Trial, 
 
 683. 
 Rex V. Tremearne, Costs, 620 ; Procedure and Practice, 477. 
 Rex V. Trowter, Murder, etc., 380. 
 Rex V. Trueman, Bigamy, 65. 
 Rex V. Trusty, Robbery, 451. 
 Rex V. Tubby, Evidence, 546. 
 
 Rex V. Tucker, Perjury, 412 ; Threatening Letters, 467. 
 Rex V. Tutfs, Evidence, 549. 
 Rex V. Tunnard, Larceny, 280. 
 Rex V. Turner, Burglary, 71 ; Costs, 616, 620 ; Laro3ny, 264 ; Principals, 
 
 etc., 31 ; Robbery, 449. 
 Rex V. Tye, Murder, etc., 372. 
 Rex T. Tyers, Embezzlement, 122. 
 Rex V. Tyler, Evidence, 542. 
 Rex V. Upchurch, Evidence, 535. 
 Rex v. Van Butchell, Murder, etc., 344, 375. 
 Rex v. Vandercomb, Burglary, 79, 81 : Procedure and Practice, 480, 
 
 511. 
 Rex V. Vane (Lord), Crim. Lif., 12. 
 Rex V. Vantandillo, Sanitary Laws, 452. 
 Rex V. Varley, Coining, 97. 
 Rex V. Vaughan, Crim. Inf., 12. 
 Rex V. Villeneuve, False Pretences, 146. 
 Rex v. Verelst, Perjury, 412. 
 Rex v. Voke, Murder, etc., 357. 
 Rex v. Vyse, Larceny, 276. 
 Rex V. Waddington, Bail, 612 ; Burglary, 79. 
 Rex V. Wade, Procedure and Practice, 474. 
 Rex V. Wagstaif, Threatening Letters, 459, 466. 
 Rex V. Waite, Articles of the Peace, 607 ; Crim. Inf., 8. 
 Rex V. Wakefield, Abduction of Women, etc., 35 ; Bio-amy 65 
 Rex V. Wakeling, False Pretences, 146. ° 
 
 Rex V. Walford, JP'rocedure and Pi-aotice, 473. 
 Rex V. Walker, False Pretences, 164; Larceny, 271 ; Murder, etc. 341 • 
 
 Principals, etc., 30. " j •; > 
 
 Rex v. Walkley, Evidence, 537, 544. 
 Rex V. Wall, Forgery, 212. 
 Rex V. Wallis, Burglaj-y, 79. 
 Rex V. Walsh, Larceny, 237. 
 Rex V. Walter, Evidence, 547. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. Ixix 
 
 Rex V. Walters, Burglary, 69. 
 
 ■Rex V. Wandsworth, New Trial, 582. 
 
 Rex V. Ward, Forgery, 174 ; Perjury, 416. 
 
 Rex V. Warner, Murder, etc., 363. 
 
 Rex V. Warren, Burglary, 73 ; Murder, etc., 370. 
 
 Rex V. Warshaner, t'orgery, 217. 
 
 Rex V. Warwickshall, Evidence, 537. 
 
 Rex V. Waters, Murder, etc., 342, 372, 374 ; Procedure and Practice, 
 492. 
 
 Rex V. Watson, Crim. Inf., 3, 11; False Pretences, 162; Punishment, 
 599 ; Treason, 469. 
 
 Rex V. Watton, Costs, 621. 
 
 Rex V. Watts, Forgery, 224. 
 
 Rex V. Wavell, False Pretences, 159. 
 
 Rex V. Weale, Larceny, 283. 
 
 Rex V. Webb, Crim. Inf., 12 ; Evidence, 546, 570 ; Forgery, 185 ; Lar- 
 ceny, 268; Murder, etc., 345, 374; Procedure and Practice, 476. 
 
 Rex V. Webster, Crim. Inf , 7. 
 
 Rex V. Wedge, Rape, etc., 438. 
 
 Rex V. Welbourn, Murder, etc., 376, 378. 
 
 Rex Y. Welch, Coining, 84; Procedure and Practice, 512. 
 
 Rex V. Welland, Larceny, 280. 
 
 Rex V. Wells, Evidence, 563. 
 
 Rex V. Wellings, Embezzlement, 123, 138. 
 
 Rex V. Went, Larceny, 290. 
 
 Rex V. West, Malicious Injury, 313. 
 
 Rex V. Westbeer, Evidence, 563 ; Larceny, 271. 
 
 Rex V. Weston, Murder, etc., 357. 
 
 Rex V. Westwood, Burglaiy, 71 ; Procedure and Practice, 496. 
 
 Rex V. Whateley, Ci-im. Inf., 8 ; Malicious Injury, 318. 
 
 Rex V. Wheatley, False Pretences, 154. 
 
 Rex V. Wheeler, Burglary, 73 ; Larceny, 289. 
 
 Rex V. Whiley, Forgery; 185, 227. 
 
 Rex V. White, Burglary, 80 ; Counsel, 532 ; Crim. Inf, 3 ; Embezzle- 
 ment, 141; Evidence, 535, 569; Perjury, 399; Principals, etc., 
 25 ; Procedure and Practice, 508. 
 
 Rex V. Whitehead, Conspiracy, 1 1 5. 
 
 Rex V. Whiteley, Murder, etc., 339. 
 
 Rex V. Whitley, Murder, 355. 
 
 Rex V. Whithers, Murder, etc., 340. 
 
 Rex V. Wliithorne, Murder, etc., 331. 
 
 Rex V. Whiting, Counsel, 533. 
 
 Rex V. Whitney, Malicious Injury, 322. • 
 
 Rex V. Whittingham, Embezzlement, 124. 
 
 Rex V. Wicks, Forgery, 224. 
 
 Rex V. Wiggs, Murder, etc., 337. 
 
 Rex V. Wilcocks, Forgery, 184. 
 
 Rex V. Wilcox, Forgery, 191. 
 
 Rex V. Wild, Evidence, 535. 
 
 Rex V. Wilford, Burglary, 74. 
 
 Rex V. Wilkes, Crim. Inf, 2; Evidence, 564; Forgery, 183; Poaching, 
 390. 
 
 Rex V. Wilkins, False Pretences, 163 ; Larceny, 249. 
 
 Rex V. Wilkinson, Larceny, 245. 
 
 Digitized by Microsoft® 
 
Ixx TABLE OF CASES, DIGESTED. 
 
 Kex V. Willett, Grim. Inf., 10. 
 
 Rex V. Williams, Crim. Inf., 3, 8 ; Duelling, 118 ; Embezzlement, 138; 
 
 False Pretences, ] 49 ; Forcible Entry, 170, 172; Forgery, 202, 
 
 203; Larceny, 241 ; Mm-der,etc., 363 ; Riots, 438. 
 Rex V. Williamson, Crim. Inf., 13 ; Murder, etc., 344. 
 Mex V. Willis, Larceny, 251. 
 
 Rex V. Willoughby, Forgery, 204 ; Murder, etc., 328. 
 Rex V. AVilson, Burglary, 75; Coining, 84; Crim. Inf., 15; Forcible 
 
 Entry, 170,171,173. 
 Rex V. Winkworth, Robbery, 450. 
 Rex V. Winter, Arson, 39. 
 Rex V. Withal, Burglary, 81. 
 
 Rex V. Withers, Crim. Inf., 15; Jvidgment, etc., 689 ; Murder, etc., 361. 
 Rex V. Witt, Burglary, 75. 
 Rex V. Wood, Murder, etc., 360 ; Robbery, 446. 
 Rex V. Woodcock, Murder, etc., 378. 
 Rex V. Woodhead, Malicious Injury, 311. 
 Rex V. Woodrow, Crim. Inf, 12. 
 Rex V. Woodward, Arson, 45 ; Burglary, 80 ; Larceny, 289 ; Malicious 
 
 Injury, 323 ; Procedui-e and Practice, 490. 
 Rex V. Wooicock, Riots, 436,441. 
 Rex v. Wooldridge, Coining, 86. 
 Rex V. Wooler, Juries, etc., 521. 
 Rex V. Woolford, Larceny, 306. 
 Rex V. WooUer, New Trial, 582. 
 Rex V. Woolmer, Murder, etc., 332. 
 Rex Y. Worker, Poaching, 385. 
 Rex V. Worrall, Larceny, 279. 
 RevT. Wren, Bail, 611. 
 Rex V. Wright, Crim. Inf, 3, 4, 13 ; Larceny, 269 ; Persons capable of 
 
 Crimes, 18 ; Procedure and Practice, 473 ; Suicides, 457. 
 Rex V. Wrigley, Murder, ete., 373. 
 Rex V. Wroxton, Bigamy, GO. 
 Rex V. W. R. Yorkshire, Costs, 615. 
 
 Rex V. W. R. Yorkshire, (Justices) Error and Appeal, 590. 
 Rex V. Wyatt, Murder, etc., 382. 
 Rex T. Wylde, Evidence, 570. 
 Rex V. Wylie, Forgery, 227. 
 Rex V. Wymer, Larceny, 292. 
 Rex V. Wynn, Procedure and Practice, 476. 
 Rex V. Wynne, Larceny, 245. 
 Rex V. Yates, False Pretences, 159. 
 Rex V. Yend, Larceny, 281. • 
 Rex V. Young, Crim. Inf, 8 ; Escape, Rescue, etc., 601 ; False Pretences, 
 
 146 ; Procedure and Practice, 496. 
 Rex V. Younghusband, Crim. Inf, 10, 14. 
 Roberts v. Preston, Railways, etc., 427. 
 Robinson, In re, Bail, 610. 
 Ruston's Case, Evidence, 569. 
 Ryalls V. Reg., Judgment, etc., 586 ; Perjury, 405 ; Procedure and 
 
 Practice, 490. 
 Ryan v. Shilcock, Burglary, 68. 
 Samuel v. Payne, Apprehension and Arrest, 602. 
 
 Digitized by Microsoft® 
 
TABLE OF CASES, DIGESTED. Ixxi 
 
 Sandsrson v. Piper, Forgery, 177. 
 
 Sawdon's Case, Juries, etc., 524. 
 
 Sayer v. Glossop, Bigamy, 65. 
 
 Scattergood v. Sylvester, Larceny, 309. 
 
 Scott, Ex parte, Apprehension and Arrest, 605. 
 
 Sharpe's Case, Procedure and Practice, 484. 
 
 Shaw's Case, Principals, etc., 30. 
 
 Sherrington's Case, Evidence, 535. 
 
 Sill V. Keg., Error and Appeal, 594 ; False Pretences, 1 67. 
 
 Silversides v. Reg., Government Stores, 230 ; Judgment, etc., 590. 
 
 Simmons v. Millengen, Apprehension and Arrest, 604. 
 
 Smith, Ex parte, Crim. Inf., 3. , 
 
 Smith V. Reg., Procedure and Practice, 503, 517. 
 
 Stephens v. Myers, Assault and Battery, 47. 
 
 Stocken v. Carter, Assault and Battery, 48. 
 
 Sunderland's Case, Bigamy, 61. 
 
 Swaile's Case, Bail, 612. 
 
 Sydserff v. Reg., Conspiracy, 110. 
 
 Tarry v. Newman, Larceny, 274. 
 
 Taylor v. Newman, Larceny, 284. 
 
 The Queen's Case, Conspiracy, 114. 
 
 Thomas v. Russell, Larceny, 286. 
 
 Thompson, Ex parte. Assault and Battery, 57. 
 
 Thompson, In re. Assault and Battery, 58. 
 
 Tulley V. Corrie, Murder, etc., 351. 
 
 Tunnicliffe v. Tedd, Assault and Battery, 56. 
 
 Turner v. Meymott, Forcible Entry, 171. 
 
 Two Sicilies v. Willcox, Persons capable of Crimes, 24. 
 
 Uphold v. Leit, Forgery, 209. 
 
 Vaughton v. Bradshaw, Assault and Battery, 56. 
 
 Wadham v. Rigg, Embezzlement, 143. 
 
 Wakefield's Case, Evidence, 566. 
 
 Wakley v. Cooke, Crim. Inf., 15. 
 
 "Walker v. London (Mayor, etc.), Larceny, 309. 
 
 Walker v. Reg., Perjury, 407. 
 
 Walker's Case, Juries, etc., 522. 
 
 Wason, Ex parte, Procedure and Practice, 479. 
 
 Watson's Case, Evidence, 571, 574. 
 
 White V. Edmunds, Apprehension and Arrest, 603. 
 
 White, In re, Juries, etc., 521. 
 
 White V. Reg., Error and Appeal,' 593. 
 
 Whitehead v. Reg.. Judgment, etc., 586 ■ Procedure and Practice, 487. 
 
 Whiteley v. Chappell, Personation, 424.* 
 
 Wickes v. Clutterbuck, Larceny, 286. 
 
 Wild's Case, Murder, etc., 337. 
 
 Wilkes V. Rex, Crim. Inf , 2 ; Judgment, etc., 585. 
 
 Wilkinson v. Dutton, A.sfault and Battery, 57. 
 
 Williams v. East India Company, Gunpowder, 232. 
 
 Williams, Ex parte, Crim. Inf, 10. 
 
 Williams v. Reg., Larceny, 281 ; Procedure and Practice, 494. 
 
 Windsor, In re, Forgery, 175. 
 
 Winsor v. Reg., Evidence, 566, 567 ; Juries, etc., 527, 528. 
 
 Wootton V. Dawkins, Murder, etc., 366. 
 
 Digitized by Microsoft® 
 
Ixxii TABLE OF CASES, DIGESTED. 
 
 Womersley's Case, Costs, 615. 
 
 Wright's Case, Forgery, 189. 
 
 Wright V. Court, Apprehension and Arrest, 603. 
 
 Wright V. Reg., Conspiracy, 112 ; Juiies, etc., 528 ; Error and Appeal, 
 
 593. 
 Wright V. Rex, Procedure and Practice, 490. 
 Young, In re, Costs, 614. 
 Young V. Rex, False Pretences, 164 ; Procedure and Practice, 495. 
 
 ADDENDA. 
 
 Dubois, In re. Extradition, 623. 
 
 Haylocke v. Tharke, Arrest, 605. 
 
 Reg. V. Adams, Forgery, 214. 
 
 Reg. V. Badger, Crim. Inf., (note 3) 9. 
 
 Reg, V. Clarke, Evidence, 553. 
 
 Reg. V. Evans, Larceny, 238. 
 
 Reg. V. Greenwood, Coining, 95. 
 
 Reg. V. Williams, Concealment of Births, 104. 
 
 Mead Reg. v. Campbell for Reg. v. Compbell, page 374. 
 " Reg. v. Laugher " Rex v. Laughen, page 22. 
 " Rex V. Barnes, " Reg. v. Barnes, page 615. 
 " Rex V. Healey " Reg. v. Healey, page 488. 
 " Rex V. Jepson, " Reg. v. Jepson, 463. 
 
 Digitized by Microsoft® 
 
CRIMINAL INFORMATION. 
 
 I. When gkanted. 
 
 1 . General Principles, 1 . 
 
 2. Ex-officio by the Attarney- Gen- 
 
 eral, 2. 
 
 3. For Libellous Publications, 2. 
 
 (a) What are, 2. 
 
 (I)) Who entitled to,Z. 
 
 (c) Necessary Affidavits, i. 
 
 (il) Proof of Publication, 4. 
 
 (e) Form and Validity of In- 
 ' formation, 5. 
 
 (f) Justifying Publication, %. 
 (if) Costs, 7. 
 
 4. Against Magistrates, 7. 
 
 (a) Grounds, 7. 
 
 (b) Time of Application, 9. 
 
 (c) tNotice of Application, 9. 
 
 5. Sending a Challenge, 10. 
 
 6. Against Parish Officers, 11. 
 
 7. /n 0(A«- Cases, 11. 
 
 8. Application for Information, 13. 
 
 9. Time, 13. 
 
 10. Affidavits, 13. 
 
 11. OtAer Points of Practice, 15. 
 
 12. Cosis, 16. 
 
 13. Conviction, 16. 
 
 I. When geanted. 
 1. General Principles. 
 
 The granting of criminal informa- 
 tion is discretionary under the cir- 
 cumstances. Anon.IjoSt,S23. And 
 see Hex v. Robinson, 1 W. Bl. 541. 
 
 The court will not entertain an 
 application for a criminal informa- 
 tion on light or trivial grounds, or 
 where no imputations are made in- 
 dividually on the person applying 
 for the information, but will leave 
 him to his remedy by action or in- 
 dictment. Reg. V. Mead, 4 Jur. 1014 
 -Q.B. 
 
 On a rule for information, though 
 the court may think a ground is laid, 
 
 yet if under the circumstances the 
 payment of the prosecutor's costs 
 appears an adequate punishment, 
 they will discharge the rule on the 
 defendant's undertaking so to do. 
 Rex V. Morgan, 1 Dougl. 314. 
 
 Not grantable against a very poor 
 person. Anon. Jjofft, 155. 
 
 The court will not grant a crimi- 
 nal information on the sole testimony 
 of a particeps criminis, (uncontra- 
 dicted) where the offense is against 
 the public interest, as bribery iu the 
 election of an alderman, who will, 
 by virtue of his office, be a justice 
 of peace. Rex v. Steward, 2 B. & 
 Ad. 12. 
 
 To obtain a criminal information, 
 the applicant should apply to the 
 court in the first instance, and be- 
 fore he has elected to take another 
 course of proceeding. Reg. v. 
 MarshaU, 4 El. & Bl. 475 ; 3 C. L. 
 R. 676 ; 1 Jur., K S. 676 ; 24 L. 
 J., Q. B. 242. 
 
 A rule was obtained for a crimi- 
 nal information against a county 
 court judge for alleged misconduct 
 in his office. The affidavit in sup- 
 port of the rule stated that the ap- 
 plicant had adressed a memorial to 
 the lord chancellor, setting forth 
 the substance of the facts. It ap- 
 peared from affidavit in answer that 
 the memorial to the lord chancellor 
 contanied general charges of mis- 
 conduct, and specified the particu- 
 Jar misconduct complained of, and 
 prayed for an inquiry into the be- 
 havior of the judge, and that the 
 lord chancellor had declined to in- 
 
 Digitized by Microsoft® 
 
CRIMINAL INFORMATION. 
 
 terfere. The court discharged the 
 rule on the ground that the appli- 
 cant had elected his remedy. Ih. 
 
 A letter between private individ- 
 uals, containing abusive matter, but 
 not inciting to a breach of the peace, 
 will not support an application for 
 a criminal infonnation. Dale, Ex 
 parte, 2 C. L. R. 870— B. C. 
 
 The court will not grant a crimi- 
 nal information for breach of a 
 public statute creating a state offense 
 on the application of a private per- 
 son, but only on the information of 
 the law officers of the crown . Oraw- 
 shay, Ex parte, 8 Cox. C. C. 356 : 
 3 L. T., N. S. 320— Q. B. 
 
 If a private person desires fo pun- 
 ish an infraction of such a statute, 
 he must do so by the ordinary ma- 
 chinery for the administration of jus- 
 tice, by preferring an indictment. lb. 
 
 An information was refused until 
 an action for the same offense was 
 discontinued. Rex v. Fielding, 2 
 .Burr. 654 ; 2 Ld. Ken. 386. 
 
 2. Ex-officio hy the Attorney- General. 
 
 Information for a misdemeanor 
 refused to the attorney-general, on 
 behalf of the crown, because he 
 may grant one himself. Rex v. 
 Plymouth {Mayor), 4 Burr. 2090. 
 
 May be filed by the solicitor-gen- 
 eral during a vacancy of the office 
 of attorney-general, and such va- 
 cancy need not be averred on the 
 record. Rex v. Wilkes, 4 Burr. 2576; 
 S. P. Wilkes V. Rex (in error), 4 
 Bro. P. C. 360. 
 
 The court will not give leave to 
 quash an information filed ex-officio 
 by the attorney-general. He may 
 stop the proceedings upon it by nolle 
 prosequi, and file another. Rex v. 
 Stratton, 1 Dougl. 239. 
 
 A defendant in an information at 
 the suit of the attorney-general is 
 not entitled to a change of venue 
 without his consent. Att.-Gen. v 
 Smith, 2 Vviae, lis. 
 
 In an information at the suit of 
 
 the crown, the attorney-general is 
 
 entitled, as matter of right, to 
 
 Digitized by 
 
 amend the information on payment 
 of costs. Att- Gen. v. Ray, 1 1 M. 
 & W. 464; 7 Jur. 561; 12 L. J., 
 Exch. 352. 
 
 8. For lAheUous Publications. 
 (a) What are. 
 
 An information lies for a libel re- 
 flecting on the character of a justice 
 of the peace. Anon. Lofft, 462. 
 
 So, for sending a letter, charging 
 the complainant with an iwmatural 
 crime, although in very guarded and 
 general terms, and the complainant 
 does not positively swear to his in- 
 nocence. Rex V. Dennison, Lofft, 
 148. 
 
 So, for printing an account of a 
 ludicrous marriage between an act- 
 ress and a married man. Rex v. 
 Kinnersky, 1 W. Bl. 294. 
 
 An information held good, though 
 the matter published merely held 
 the prosecutor up to ridicule. Rex 
 V. Benfield, 2 Burr. 985. 
 
 An information lies for singing 
 songs in the streets, reflecting on 
 the prosecutor's children, with' in- 
 tent to destroy his domestic happi- 
 ness, lb. 
 
 An information lies against a 
 member of parliament for publish- 
 ing a speech in a newspaper, con- 
 taining slanderous matter. Rex. v. 
 Abingdon {Lord), 1 Esp. 226; Peake, 
 236 — Kenyon. 
 
 A criminal information having 
 been granted against a defendant, 
 he, before the trial at nisi prius, dis- 
 tributed hand-bills in the assize 
 town, vindicating his own conduct, 
 and reflecting on the prosecutor's ; 
 this matter being disclosed to "ihe 
 judge at nisi prius by an affidavit, 
 was held a sufficient ground to put 
 off the trial ; and that affidavit be- 
 ing returned to the court, they 
 granted another information on it 
 against the defendant, considering 
 the affidavit taken at nisi prius as 
 taken under the authority of the 
 court. Rex V. Jolliffe, 4 T. R. 285. 
 
 The court will grant a criminal 
 information for pubUshing in a news- 
 Microsoft® 
 
CRIMINAL INFORMATION. 
 
 paper a statement of the evidence 
 given before a coroner's jury ac- 
 companied with comments, although 
 the statement is correct, and the 
 party has no malicious motive in 
 the publication. Rex v. Meet, 1 B. 
 & A. 379. 
 
 The court will grant a criminal 
 information against the publisher of 
 a newspaper for a libel reflecting on 
 the clergy of a particular diocese, 
 and generally upon the clergy of the 
 church of England, though no indi- 
 vidual prosecutor was named, and 
 though the libellous matter was not 
 negatived on affidavit : it is sufli- 
 cient to state the publication of the 
 libel by the defendant. Itex v. 
 Williams, 1 D. & R. 197; 5 B. & 
 A.' 595. 
 
 An order made by a corporation 
 and entered in their books, stating 
 that A. (against whom a jury had 
 found a verdict with large damages 
 in an action for a malicious prose- 
 cution for perjury, which verdict 
 had been confirmed) was actuated 
 by motives of public justice, in pre- 
 ferring the indictment, is such a libel 
 reflecting on the administration of 
 justice, for which the court will 
 grant an information against the 
 members making that order. Eex. 
 V. Watson, 2 T.R. 199. 
 
 So, an information will lie for 
 publishing a reflection on a judge 
 and jury for acquitting a prisoner. 
 Eex V. White, 1 Camp. 359, n. — 
 Grose. 
 
 ThCiCOurt refused to grant a crim- 
 inal information against a booksel- 
 ler, for pi-inting a report of the 
 Hoaise of Commons, though it re- 
 flected on the character of an indi- 
 vidual. Bex V. Wriffht, 8 T. R. 293. 
 
 A party having been charged be- 
 fore the coroner with the crime of 
 murder, a newspaper, pending the 
 inquiry, published an article strong- 
 ly reflecting upon him as a murder- 
 er. Having been committed for 
 trial, he was found guilty of man- 
 slaughter, and sentenced to nine 
 
 bor. Upon an application by him 
 for a criminal information for such 
 article, the court declined to inter- 
 fere, on the ground that there was 
 no personal malice suggested, and 
 that the article could now exercise 
 no prejudicial influence. Smith, Ex 
 parte, 21 L. T., N. S. 294— Q. B. 
 
 For Slanderous Words spoken of 
 Magistrates. 
 
 Slanderous words spoken of and 
 to a mayor in discharge of his office 
 as mayor, and of him in the execu- 
 tion of his office, the mayor being 
 also a magistrate in virtue of his 
 office, are the subject of a criminal 
 information. Eeg. v. Eea, 17 Ir. 
 C. L. R. 584— Lefroy, C. J., and 
 Hayes, J. 
 
 Such words are not the subject of 
 an indictment, nor, consequently, of 
 a criminal information — Per O'Brien 
 and Fitzgerald, J J. 
 
 (b) Who entitled to. 
 
 On a motion for a criminal infor- 
 mation for a libel impugning the 
 conduct of a jury, it appeared that 
 the foreman had published a letter 
 commenting in violent terms on the 
 alleged libel, and that, before pub- 
 lication, he communicated a copy 
 to the other jurymen. The letter 
 was signed by the foreman " for self 
 and fellows"; and it appeared to 
 the court that the affidavits afforded 
 ground for believing that some of 
 the jurymen knew of the foreman's 
 intention to publish the letter early 
 enough to have given him notice of 
 their dissent from his doing so, which 
 they had not done : Held , that neith- 
 er were these jurymen, nor was th6 
 foreman, entitled to the criminal in- 
 formation. Eeg. V. Lawson, 1 Q.B. 
 486 ; 1 G, & D. 15 ; 5 Jur. 387. , 
 
 If a party who has been libelled 
 puts himself into communication 
 with the libeller, for the purpose of 
 
 months' imprisonment/5)r^|gg^-/Jyfgf8$^flfe"P°° ^'^ obtaining redress 
 
CRIMINAL INFORMATION. 
 
 from him, the court will not grant 
 a criminal information. Beauchrh, 
 ex parte, 7 Jur. 373 — Q. B. 
 
 (c) Necessary Affidavits. 
 
 It is an invariable rule not to 
 grant an information for a libel, 
 without an exculpatory affidavit, 
 unless where the party libelled is 
 abroad at a great distance, or the 
 subject-matter of the charge is gen- 
 eral imputation, or an accusation of 
 criminal language held in parlia- 
 ment. Rex V. Haswell, 1 Dougl. 387. 
 
 It is a general rule that the court 
 will not grant an information for a 
 private libel, charging a particular 
 offense, unless the prosecutor will 
 deny the charge upon oath. Rex v. 
 Miles, 1 Dougl. 284. 
 
 An affidavit to found a motion 
 for a criminal information for a 
 libel must distinctly negative the 
 charge, unless the party libelled is 
 abroad, or the charge is general. 
 Rex V. Wright, 2 Chit. 162. 
 
 • Although a party applying for a 
 criminal information must shew him- 
 self to be an innocent party, yet the 
 court made a rule absolute for such 
 information against the publisher of 
 a libel, which affected several parties, 
 notwithstanding that the charac- 
 ter of the person principally attack- 
 ed, and on whose affidavit the rule 
 nisi had been obtained, was im- 
 peached on shewing cause. Reg. v. 
 Oregon/, 1 P. & D. 110 ; 8 A. & E. 
 907. 
 
 A rule nisi for a criminal infor- 
 mation for a libel was discharged, 
 on an affidavit made by a person 
 who swore to the truth of the libel. 
 This person was indicted for per- 
 jury; the bill was found and he ab- 
 sconded. It appeared from the affi- 
 davits of several persons that the 
 former affidavit was entirely untrue. 
 The court, under these circumstan- 
 ces granted another rule nisi for a 
 crimmal information, and made it 
 absolute. Rex v. Hve, 1 N. & P 
 229 ; 5 A. & E. 780 ; 2 H. & W 
 450. 
 
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 (d) Proof of Publication. 
 
 The rule established at nisi prius 
 in prosecutions for libel in a news- 
 paper, viz., that, after production of 
 the stamp-office affidavit, a paper 
 corresponding with it in title, print- 
 er's and publisher's name, and place 
 of publication, may be put in and 
 read, as published by the parties 
 therein named, without other proof 
 on this point, applies equally on 
 motions for criminal informations. 
 Rex V. Donnison, 4 B. & Ad. 698. 
 
 A rule for a criminal information 
 against the publisher of a newspaper ' 
 libel must be drawn up on reading 
 the newspaper, and the newspaper 
 must be filed ; otherwise the court 
 will discharge such a rule, although 
 properly granted on production of 
 a certified copy from the stamp- 
 office, under 6 & 7 Will. 4, c. 76, 
 s. 8, of a declaration by the defend- 
 ant that he ia publisher of a news- 
 paper therein described, and on pro- 
 duction of a newspaper correspond- 
 ing to it, which contains the libel. 
 Reg. V. Woolmer, 4 P. & D. 137 ; 12 
 A. & E. 422. 
 
 If an affidavit on which a rule nisi 
 is granted for a criminal informa- 
 tion for a libel does not swear to a 
 publication, the rule cannot be sup-- 
 ported, though the affidavits of the 
 other side admit the publication. 
 Reg. V. Baldwin, 3 N. & P. 342 ; 1 
 W. W. & H. 158 ; 8 A. & E. 168 ; 
 2 Jur. 856. 
 
 A statement in an affidavit that 
 the defendant did print and insert a 
 libel in a certain newspaper, a copy 
 of which is annexed, is not sufficient 
 proof of publication to make the de- 
 fendant liable to a rule nisi. lb. 
 
 A motion for a criminal infoi-mar 
 tion for libels published in a news- 
 paper was made upon affidavits con- 
 taining the stamp-office certificate 
 verifying the declaration of publi- 
 cation and printing, under 6 & 7 
 Will. 4, c. 76, s. 8. The affidavits 
 also set forth the libel, stating it to 
 be contained in a newspaper which 
 (as appeared by the affidavits) cor- 
 
CRIMINAL INFORMATION. 
 
 responded with the description in 
 the stamp-office declaration. At 
 the time of the motion, a newspaper, 
 likewise so corresponding, was she-«ai 
 to the com-t. The rule nisi was 
 granted ; but it was not drawn up 
 on reading the newspaper ; nor was 
 the newspaper annexed to the affi- 
 davit or filed : — Held, not sufficient 
 at common law or under the stat- 
 ute ; and that the newspaper coul'd 
 be shewn to the court on moving to 
 make a rule absolute. Reg. v. Wool- 
 mer, 12 A. & E. 422 ; 4 P. & D. 137. 
 The court will discharge a rule 
 for a criminal information for a li- 
 bel against the publisher of a news- 
 paper, where, in the affidavits upon 
 which the rule had been obtained, 
 and the affidavits sworn at the 
 stamp-office, the defendant was de- 
 scribed as of different places. Rex 
 V. Francis, 4 N. & M. 251 ; 2 A. 
 & E. 49. 
 
 Where a newspaper is filed, to- 
 gether with affidavits, in support of 
 a motion for a criminal information 
 for a libel, the court will take notice 
 of it, if it corresponds in the neces- 
 sary particulars with the stamp- 
 office affidavit, though it is not an- 
 nexed to and expressly identified by 
 any affidavit. Ih. 
 
 A ruW nisi for a criminal informa- 
 tion having been obtained against 
 W. for an alleged libel on E, W., 
 filed affidavits in answer adducing 
 fresh charges against E. Before 
 cause was shown, C, who was de- 
 fendant in an action at E.'s suit for 
 libel, pleaded a justification, con- 
 taining substantially the same mat- 
 ter as the fresh charges adduced by 
 W., and also matter bringing into 
 question the truth of the original 
 charge. The court refused, on mo- 
 tion by E., to stay the hearing of 
 argument on the rule against W. 
 till the action of E. against C. 
 should have been tried. Reg. v. 
 Willmer, 15 Q. B. 50. 
 ■ The mode of proving libels pub- 
 lished in newspapers, by the pro- 
 duction of certified copies of de- 
 
 clarations of proprietorship, filed 
 under 6 & 7 Will. 4, c. 76, s. 8, is 
 no longer available, as that section 
 is repealed by 32 & 33 Vict. c. 24, 
 s. 1, per First Schedule, and conse- 
 quently the decisions digested under 
 this head are no longer law. 
 
 But by 32 & 33 Vict. c. 24, Sec- 
 ond Schedule, section 19, of 6 & 7 
 Will. 4, c. 76, which enacts, that, 
 " if any person shall file any bill in 
 " any .court for the discovery of the 
 " name of any person concerned as 
 " printer, publisher or proprietor of 
 " any newspaper, or of any matters 
 " relative to the printing or publish- 
 " ing of any newspaper, in order the 
 " more effectually to bring or carry 
 " on any suit or action for damages 
 " alleged to have been sustained by 
 " reason of any slanderous or libel- 
 " lous matter contained in any such 
 " newspaper respecting such person, 
 " it shall not be lawful for the de- 
 " fendant to plead or demur to such 
 " bill, but such defendant shall be 
 " compellable to make the discovery 
 " required : provided always, that 
 " such discovery shall not be made 
 " use of as evidence or otherwise in 
 " any proceeding against the de- 
 " fendant, save only in that pro- 
 " ceeding for which the discovery is 
 " made," is kept aUve and in force. 
 
 (e) Form and Validity of Informa- 
 tion. 
 
 An information for a libel need 
 not charge the offense to have been 
 committed vi et armis, or allege 
 that the libellous matter is false. 
 Rex V. Burlce, 7 T. R. 4. 
 
 On an information for falsely and 
 maliciously publishing a libel con- 
 cerning the king, by stating in a 
 newspaper that- his majesty was af- 
 flicted with mental derangement, 
 the jury found the defendant guilty 
 of so doing.: — Held, on a motion for 
 a new trial, first, that to assert 
 falsely of his majesty, or of any in- 
 dividual, that he labors under the 
 affliction of mental derangement, is 
 a criminal act, and a malicious inten- 
 
 Digitized by Microsoft® 
 
CRDIINAL INFORMATION. 
 
 lion may be inferred from the mere 
 fact of publication, unless evidence 
 is given by the defendant to rebut 
 such inference : secondly, that such 
 an assertion concerning the king, 
 being in itself mischievous to the 
 public, is an indictable offense, vrith- 
 out any allegation or direct proof of 
 a malicious intention : thirdly, that 
 where the jury desired to know 
 " whether, in order to convict a de- 
 fendant for the publication of a Li- 
 bel, a malicious intention must not 
 have existed in his mind," they 
 were correctly answered by the 
 judge presiding at the trial, who in- 
 formed them, that " a person who 
 publishes that which is calumnious 
 concerning the cliaracter of another 
 must be presumed to have intended 
 to do that which the publication is 
 necessarily and obviously calculated 
 to effect, unless he can show the con- 
 trary, and that the onus of proving 
 the contrary lies upon him: " and, 
 fourthly, that where the publisher of 
 a libel states that the fact which he 
 communicated is " from authority," 
 and it appears tliat the fact is un- 
 true, he is guilty of a false assertion, 
 in the criminal sense of the word. 
 Rex V. Harvey, 3D. & R. 464 ; 2 B. 
 & C. 257. 
 
 Information held good for pub- 
 lishing a libel against two persons, 
 where the publishing was one single 
 offense. Rex v. Benfield, 2 Burr. 
 983. 
 
 Where several persons were ch arg- 
 ed in the same information, it was 
 held good, the offense arising out of 
 one joint act. Ih. 
 
 When an information alleged that 
 the defendant, intending to insinu- 
 ate and cause it to be believed that 
 diverse liege subjects of the king 
 had been inhumanly cut down, 
 maimed and killed, by certain troops 
 of the king, unlawfully and mal- 
 iciously published a libelof and con- 
 cerning the government of this 
 realm, and of and concerning the 
 troops, and the only innuendo in 
 the libel was applied to the word 
 
 " dragoons," meaning the troops of 
 the king, and meaning thereby that 
 divers liege subjects of the king had 
 been inhumanly cut down and killed 
 by the said troops of the king : — 
 Held, on arrest of j udgment, that 
 this was sufficiently certain, without 
 defining what particular troops were 
 meant. Rex v. Burdett, 4 B. & A. 
 314. 
 
 So, where an information alleged 
 that a libel was published of and 
 concerning the government, and the 
 libel did not in express terms charge 
 the acts to have been done by the 
 government or its order, the whole 
 of the libel must be looked at, in 
 oi'der that the court may interpret 
 it in the way in which ordinary per- 
 sons would understand it, and judge 
 from the whole tenor of it whether 
 it is written of and concerning the 
 govei-nment. lb. 
 
 An introductory averment in an 
 information, that outrages had been 
 committed in and in the neighbor- 
 hood of N., is divisible : so that it 
 need not be proved that they were 
 committed in both places ; and four- 
 teen or fifteen miles from N. may be 
 considered in the neighborhood. Rex 
 V. Sutton, 4 M. & S. 532. 
 
 Upon an information against a 
 defendant for libel, for that he, wick- 
 edly, maliciously, and seditiously 
 did write and publish a certain false, 
 scandalous, and seditious Ubel " of 
 and concerning his majesty's gov- 
 ernment and the employment of his 
 troops, according to the tenor and 
 effect following :" (setting forth the 
 Ubel verbatim) : the words "of and 
 concerning" are a sufficient intro- 
 duction of the matter contained in 
 the libel, and a sufficient averment 
 that it was written of and concern- 
 ing the king's government, and the 
 employment of his troops. Rex v. 
 Home, Cowp. 672. 
 
 (f) Justifying Puhlication. 
 [6 4-7 Vict. c. 96, s. 6.] 
 Where a defendant in an infor- 
 mation for a libel has pleaded the 
 
 Digitized by Microsoft® 
 
CRIMINAL INFORMATION. 
 
 truth of the charges under 6 & 7 
 Vict. c.96,s. 6, evidence is not admis- 
 sible in support of the plea that the 
 same cha^'ges had been previously 
 published within the knowledge of 
 the prosecutor, and that he had not 
 taken legal proceedings against the 
 publisher. Reg. v. Newman, Dears. 
 C.C.85; 1E1.&B1.268;3C.&K. 
 252; 17 Jur.617; 22 L. J.,Q.B.156. 
 
 Where a plea of justification con- 
 tains several charges, and the prose- 
 cutor replies generally, den3dng the 
 whole, the prosecutor is entitled 
 to a verdict unless the defendant 
 proves to the satisfaction of the jury 
 the truth of all the material allega- 
 tions ; and if the defendant fails to 
 prove the truth of all the matters 
 charged, it is no ground for a new 
 trial that, with respect to some of 
 those upon which the jury gave a 
 verdict against the defendant, their 
 finding was against the weight of 
 the evidence. lb. 
 
 But the court, in pronouncing sen- 
 tence, is to consider the evidence on 
 the one side and on the other, and 
 to form their own conclusion wheth- 
 er the guilt of the defendant is ag- 
 gravated or mitigated by the plea, 
 and by the evidence given to prove 
 or to disprove the same. Ih. 
 
 Afiidavits showing the gromids 
 upon which the defendant proceeded 
 in pleading certain allegations in a 
 plea of justification, in support of 
 which no evidence was given at the 
 trial, are receivable in mitigation of 
 punishment, but not as proving the 
 truth of the allegations. Ih. 
 
 If, in an information for a libel, 
 the plea states that the prosecutor, 
 who had been a Dominican, had 
 earned the reputation of a scandal- 
 ous friar, a witness for the defendant 
 may be asked as to the prosecutor's 
 moral character. Reg. v. Newman, 
 3 C. & K. 252— Campbell. 
 
 The special plea of justification 
 given by 6 & 7 Vict. c. 96, s. 6, can- 
 not be pleaded to an indictment for 
 a seditious libel. Reg. v. Duffy, 2 
 Cox, C. C. 45. 
 
 (g) Costs. 
 Where in an information for a li- 
 bel judgment is given forthe defend- 
 ant, he is entitled to recover from 
 the prosecutor the costs sustained by 
 reason of such information, under 6 
 & 7 Vict. c. 96, s. 8, although the 
 only plea is not guilty, and thejudge 
 at the trial certified under 4 & 5 
 Will. & M. c. 18, s. 2, that there 
 was reasonable cause for exhibiting 
 the information. Reg. v. Latimer, 
 15 Q. B. 1077 ; 15 Jur. 314 ; 20 L. 
 J., Q. B. 129. 
 
 4. Against Magistrates. 
 (a) Grounds. 
 
 When a justice of the peace acts 
 from indirect or corrupt motives, the 
 court will punish him by informa- 
 tion. Rex V. Cozens, 2 Dougl. 426. 
 
 No infoi-mation will be granted 
 against justices acting in sessions, 
 unless in very flagrant cases. Rex 
 V. Seaford {Justices), 1 W. Bl. 432. 
 
 Wherever magistrates act up- 
 rightly, though they mistake the 
 law, no information will be granted 
 against them. Rex v. Jackson, 1 T. 
 R. 653. 
 
 On an application for a rule nisi 
 for a criminal information against a 
 magistrate, the question is not 
 whether the act done might on full 
 investigation be found to be strictly 
 right, but whether it proceeded from 
 oppressive, dishonest, or corrupt mo- 
 tives (under which fear and favor 
 may generally be included), or from 
 mistake, or error ; in either of the 
 latter instances the court will not 
 grant the rule. Reg. v. Borron, 3 
 B. & Ad. 432. 
 
 The court will not grant an in- 
 formation against a magistrate, for 
 having improperly convicted a per- 
 son, unless the party complaining 
 makes an exculpatory affidavit, de- 
 nying the facts. Rex v. Wehster, 3 
 T. R. 388. 
 
 A criminal information was re- 
 fused against a magistrate for re- 
 turning to a writ of certiorari a con- 
 viction of a party in another and 
 
 Digitized by Microsoft® 
 
8 
 
 CRIMINAL INFORMATION. 
 
 more formal /shape than that in 
 which it was first drawn up, and of 
 which a copy had been delivered to 
 the party convicted by the magis- 
 trate's clerk ; the conviction return- 
 ed being; warranted by the facts. 
 Rex V. Barker, 1 East, 186. 
 
 An information goes against a jus- 
 tice for committing a man for not 
 paying Is. for discharging his war- 
 rant. Rex V. Jones, 1 Wils. 7. 
 
 Rule nisi for an information 
 against justices of peace making a 
 commitment without previously 
 taking a prosecutor's oath, who 
 was a peer of the realm, and also 
 for neglecting to take . the noble 
 prosecutor's recognizance to prose- 
 cute, discharged, these being deem- 
 ed only irregular, not criminal. 
 Rex V. Fielding, 2 Burr. 719. 
 
 An information will be granted 
 against a justice of the peace, as 
 well for granting as for refusing an 
 ale license improperly. Rex v. Hol- 
 land, 1 T. R. 692. 
 
 An information was granted 
 against justices of peace, for refus- 
 ing to grant an ale license from mo- 
 tives of resentment. Rex v. Hann, 
 3 Burr. 1716. And seeJiexv. Young, 
 1 Burr. 556. 
 
 An information against a justice, 
 upon a charge of refusing to grant 
 a license, will be refused, if the rea- 
 sons assigned for the refusal prove 
 false in fact. Rex v. Athay, 2 Burr. 
 653. 
 
 An.information was granted for 
 refusing to grant licenses to those 
 publicans who voted against their 
 recommendation of candidates for 
 members of Parliament for the bor- 
 ough. Rex V. Williams, 3 Burr. 13, 
 17. \ 
 
 But where the justices had not 
 appeared to have acted corruptly, 
 an infoi-mation was refused. Rex 
 V. Baylis, 3 Burr. 1318. 
 
 The court will not grant a crimi- 
 nal information for calling a magis- 
 trate a liar, accusing him of mis- 
 conduct in reference to his having 
 absented himself from an election 
 
 of clerk to the magistrates, and 
 threatening a repetition of the same 
 language whenever such magistrate 
 came into the town, unless there ap- 
 pears an intention to provoke a 
 breach of the peace. Ex parte Chap- 
 man, 4 A. & E. 773. 
 
 The court will not grant a rule nisi 
 for a criminal information against 
 magistrates, unless it appears they 
 have acted from an oppressive, dis- 
 honest, or corrupt motive, under 
 which fear and favor are included. 
 Fentiman, Inre, 4 N. & M. 128 ; 1 
 A. & E. 127. 
 
 A criminal information was grant- 
 ed for these words, in a letter to a 
 mayor : " I am sure you will not be 
 persuaded from doing justice by any 
 little acts of your town clerk, whose 
 consummate malice and wickedness 
 against me and my family will make 
 him do anything, be it ever so vile." 
 Rex V. Waite, 1 Wils. 22. 
 
 Where a magistrate upon whose 
 property a malicious trespass had 
 been committed, issued a summons, 
 requesting the offender to appear 
 before himself, or some other mag- 
 istrate, and purporting that infor- 
 mation had been given to him (the 
 magistrate) on oath, whereas no oath 
 had been taken, and the information 
 had been communicated by the mag- 
 istrate to the informer, the court in 
 discharging a rule for a criminal in- 
 formation against the magistrate 
 refused to give him his costs. Rex 
 V. Whateky, 4 M. & R. 431. 
 
 A rule for a criminal information 
 ^ill not be granted against justices 
 who wrongly or improperly reject 
 bail, unless it manifestly appears to 
 the court, by conclusive and satis- 
 factory evidence, that they were 
 also influenced by partial and cor- 
 rupt motives. Reg. v. Badger, 6 
 Jur. 994— B. C. 
 
 Where the pecuniary sufficiency 
 and solvency of bail are undisputed, 
 the rejection of such bail on the 
 ground of a coincidence of political 
 opinion with the person or persons 
 for whose appearance the bail offer 
 
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CRIMINAL INFORMATION. 
 
 to become surety is improper, even 
 though such rejection by the justices 
 is reconcilable with the absence of 
 corrupt m#tives. lb. 
 
 Where justices reject bail on the 
 ground that the parties entertain 
 objectionable political opinions, and 
 on other grounds which are con- 
 cealed and not stated, the court will 
 grant a rule nisi, calling on the mag- 
 istrates refusing to show cause why 
 a criminal information should not 
 be filed against them. lb. 
 
 The justices in answer to the rule 
 deposed that they were not actuated 
 by any corrupt or malicious motive 
 in the rejection of the bail. The 
 court discharged the rule, but re- 
 quired them to pay all the costs. S. 
 G. D. & M. 375 ; 4 Q. B. 468 ; 7 Jur. 
 216; 12L.J.,M. C. 66. 
 
 The court will not grant a crim- 
 inal information for unwritten words 
 imputing to a justice malversation 
 in his office, if the words neither 
 were spoken at the time when the 
 justice was acting nor tended to -a 
 breach of the peace. Marlborough 
 {Duke) Ex parte, 5 Q. B. 955 ; D. & 
 M. 720 ; 1 New Sess. Gas. 195 ; 8 
 Jur. 664 ; 13 L. J., M. C. 105. See 
 Beg. V. Rea, 7 Ir. C. L. R. 584— 
 Q.B. 
 
 When a criminal information is 
 applied for against magistrates, the 
 question for the court is, not whether 
 their acts be found upon investiga- 
 tion to be strictly right or not, but 
 whether they were influenced by 
 corrupt, oppressive, or partial mo- 
 tives, or acted in error, and from 
 mistake only. In the latter case, 
 the court will not grant the rule. 
 Reg. V. Badger, D. & M. 375 ; 4 Q. B. 
 468; 7Jur.216; 12 L. J., M. C. 66. 
 
 Where an assault is committed by 
 a magistrate on an attorney several 
 days after he had conducted certain 
 proceedings against such magistrate, 
 the court will not grant a rule for 
 a criminal information (inasmuch as 
 the breach of the peace has not been 
 quk magistrate), but will leave the 
 party to the remedies by indictment 
 
 or action. Lee, Ex parte, 1 Jur. 441 
 —B.C. 
 
 (b) Time of Application. 
 The court will grant a rule nisi 
 
 for a criminal information at the 
 end of a term against a magistrate 
 for mal-practices during the term, 
 but not for any misconduct before 
 the term. Rex v. Smith, 7 T. R. 80. 
 
 A criminal information for mis- 
 conduct in office may be moved for 
 against a magistrate in the second 
 term after the alleged misconduct, 
 though an assize has intervened, the 
 motion being made early enough to 
 allow of cause being shown in the 
 same term. Reg. v. Saunders, 10 Q. 
 B. 484. 
 
 Where facts tending to criminate 
 a magistrate took place twelve 
 months before the application to the 
 court, they refused to grant a crim- 
 inal information, although the pros- 
 ecutor, in order to excuse the de- 
 lay, stated that the facts had not 
 come to his knowledge till a very 
 short time before the application 
 was made. Rex v. Bishop, 5 B. & 
 A. 612. 
 
 A criminal information may be 
 moved for against magistrates, for 
 misconduct in the execution of their 
 offices, in the second term after the 
 offense committed, there being no 
 intervening assizes. Rex v. Harries, 
 13 East, 270. 
 
 The court will not grant a rule 
 nisi for a criminal information 
 against a magistrate, so late in the 
 second term after the imputed of- 
 fense as to preclude him from the 
 opportunity of showing cause against 
 it in the same term. Rex v. Mar- 
 shall, 13 East, 322. 
 
 If a complaint for an information 
 against a justice of the peace proves 
 frivolous, the attorney as well as 
 the original complainer must pay the 
 costs. Rex V. Fielding, 2 Burr. 654; 
 2 Ld. Ken. 386. 
 
 (c) Notice of Application. 
 
 A magistrate is entitled to notice 
 
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10 
 
 CRIMINAL INFORIVIATION. 
 
 before an application is made for a 
 criminal information, where he is 
 charged with misconduct in his 
 magisterial capacity, although oth- 
 er misconduct is also charged. Rex 
 V. Heming, 2 N. & M. 477 ; 5 B. & 
 Ad. 666. 
 
 A magistrate is entitled in all 
 cases to six days' notice, of an in- 
 tention to apply for a rule nisi for a 
 criminal information ; and it is not 
 sufficient that, in point of fact, six 
 days have expired between the no- 
 tice and the motion, if the notice 
 contemplates an earlier application. 
 Ih. 
 
 5. Sending a Ohallenge. 
 
 The court will not grant a crim- 
 inal information for sending a chal- 
 lenge, if, in the course of the trans- 
 actions out of which it arose, the 
 prosecutor has himself sent a chal- 
 lenge to a third person connected 
 with the party against whom he 
 moves. Hex v. Larrieu, 7 A. & E. 
 277. 
 
 And this, although the prosecut- 
 or's challenge was sent into a for- 
 eign country, and did not show any 
 intention to break the peace here. Ih. 
 
 An affidavit by A., stating that B. 
 had brought him a ch allenge from C . , 
 and that B. had refused to make an 
 affidavit that C. sent him with it, is 
 not evidence in which the court will 
 grant a rule nisi for a criminal in- 
 formation against C. for sending the 
 challenge. Bex v. Willett, 6 T. R. 
 294. 
 
 Rule to show cause for an infor- 
 mation for challenge granted, upon 
 producing only copies of the letters 
 containing it. Rex v. Ghappel, 1 
 Burr. 402. 
 
 An information was refused where 
 the charge of giving a challenge 
 was made under false and ambigu- 
 ous colors ; the words spoken admit- 
 ting of a favoi-able interpretation. 
 Prideaux v. Arthur, Lofft, 393. 
 
 Where a person who was chal- 
 lenged to fight a duel applied for & 
 criminal information, and in his af- 
 fidavit, in support of the applica- 
 
 tion, stated, "that the defendant 
 had been dismissed from her Majes- 
 ty's service, under circumstances 
 which would, in the opinion of offi- 
 cers and gentlemen, disentitle him 
 to make any appeal to the laws of 
 honor, in a case where no offense 
 was given" : — Held, that by casting 
 these imputations on the defendant, 
 the applicant had forfeited his right 
 to obtain the interference of the 
 court by a crimhial information. 
 Reg. V. Doherty, 1 Arn. & H. 16. 
 
 Upon a motion for a criminal in- 
 formation against A. for challeng- 
 ing B., an affidavit stating that in 
 a correspondence between them A. 
 had intimated an intention, after 
 the settlement of accounts between 
 himself and B., to require an apol- 
 ogy for oifensive expressions con- 
 tained in a letter received by him 
 from B., or " such satisfaction as is 
 usual on such occasions between 
 gentlemen ;" and that afterwards, 
 C, a relation of A., came with a 
 letter of B. in his hand, — settled the 
 account by paying a balance due 
 from A. to B., and, after saying that 
 he had come in consequence of the 
 letter in his hand, delivered a hostile 
 message as from A. : — is insufficient 
 to connect A. with the challenge ; 
 and therefore the court refused the 
 rule. Eex v. Tounghusband, 4 N. & 
 M. 850. 
 
 The affidavits in support of an 
 application for a criminal informa- 
 tion against a party for writing let- 
 ters provoking a breach of the peace, 
 stated the belief of the deponents, 
 that the letters were in the hand- 
 writing of the party, not from their 
 own knowledge of his handwriting, 
 but from the information of other 
 persons ; the court refused a rule to 
 show cause, on the ground that such 
 evidence would not warrant a grand 
 jury in finding a true bill. WiUiams, 
 Ux parte, 5 Jur. 1133— Q. B. 
 
 The court also refused leave to 
 renew the application upon affida- 
 vits supplying sufficient evidence of 
 the handwritmg. lb. 
 
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CRIMINAL INFORMATION. 
 
 11 
 
 6. Against Parish Officers. 
 
 If a parish officer makes an alter- 
 ation in a poor-rate, after it has been 
 allowecj by two justices, but with- 
 out the approbation of the justices, 
 he cannot be punished by informa- 
 tion. Eex V. Barratt, 2 Doiigl. 465. 
 
 An information lies for a conspir- 
 acy by parish officers and others to 
 marry persons settled in different 
 parishes, if the delinquents are of 
 good situa,tion in life, but not if they 
 are low and indigent. Bex v. Oomp- 
 ton, Cald. 246. 
 
 Granted against overseers for pro- 
 curing a marriage to change a set- 
 tlement. Hex V. Herbert, 2 Ld. Ken. 
 466. 
 
 Granted against overseers for pro- 
 curing a pauper to marry another 
 pauper with child of a bastard. Bex 
 V. Tarrant, 4 Burr. 2106. 
 
 Granted against overseers for pro- 
 curing a soldier to marry a poor wo- 
 man who was an idiot, and charge- 
 able to the parish. Bex v. Watson, 
 1 Wils. 41. 
 
 The court refused a rule to show 
 cause why a criminal information 
 should not be granted against over- 
 seers, for endeavoring to induce 
 paupers fraudulently to remove to 
 another parish, the remedy being by 
 indictment. Beg. v. Storwood ( Over- 
 seers), 9 Jur. 448 ; S. G. nom. Beg. 
 V. Jennings, 2 D. & L. 741 ; 1 New 
 Sess. Gas. 488 ; 14 L. J., Q. B. 488 
 —B.C. 
 
 By 4 & 5 Will. 4, c. 76, s. 97, if 
 any overseer shall purloin, embezzle, 
 or wilfully waste or misapply any 
 of the moneys belonging to any par- 
 ish, every such offender shall upon 
 conviction before any two justices, 
 forfeit for every such offense any 
 sum not exceeding 20 1. ; an infor- 
 mation against a parish officer under 
 this statute for misapplying, without 
 the word " wilfully," is bad. Car- 
 penter V. Mason, 4 P. & D. 439 ; 12 
 A. & E. 629. 
 
 7. In other Cases. 
 The court will not grant a crim- 
 
 inal information against the mem- 
 bers of a corporation for a misap- 
 plication of the corporation money. 
 BexY. Watson, 2 T. R. 199. 
 
 A summons was issued against a 
 judgment debtor, vinder9 & 10 Vict, 
 c. 95, s. 98, calling upon him to ap- 
 pear, and to be examined by the 
 judge of the court touching his es- 
 tate and effects, and the manner and 
 circumstances under which he con- 
 tracted the debt which was the sub- 
 ject of the action in which the judg- 
 ment was obtained, and as to the 
 means and expectation he then had, 
 and as to tHe pi-operty and means 
 he still had, of discharging the debt, 
 and as to the disposal he might have 
 made of any property. The debtor, 
 appeared, and was duly sworn. The 
 judge asked him whether he was 
 prepared to pay ; he answered in 
 the negative ; and was entering into 
 an explanation of the circumstances, 
 when he was stopped by the judge, 
 who ordered his immediate commit- 
 tal to prison : — Held, that these cir- 
 cumstances afforded no ground for 
 criminal information, there being no 
 imputation of a corrupt motive on 
 the part of the judge. Anon, 16 
 Jur. 995— B. C. 
 
 The court granted an informa- 
 tion against the inhabitants of a par- 
 ish for non-repair of a road, where 
 it was deposed that a bill of indict- 
 ment had been preferred at the as- 
 sizes, but thrown out by the grand 
 jury ; that two of the grand jurors 
 were proprietors of land in the par- 
 ish ; that one of them who had act- 
 ed on behalf of the parish at an 
 earlier stage of the dispute had stat- 
 ed to the foreman that the road was 
 useless, and that both had taken an 
 active part in opposing the finding 
 of the indictment, such deposition 
 being contradicted only by general 
 statements that the two had taken 
 no undue or active part in opposing 
 the finding. JReg. v. Upton St. Leon- 
 ards, 10 Q. B. 827 ; 2 New Sess. 
 Gas. 582; 11 Jur. 306: 16 L. J., M. 
 C. 84. 
 
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12 
 
 CRIMINAL INFORMATION. 
 
 Words spoken of a person, al- 
 though they may contain serious 
 imputations, are not sufficient ground 
 for a criminal infonnation, unless 
 they are of such a nature as are 
 likely to provoke a breach of the 
 peace. Marlborough [Duke) Exparte, 
 5 Q. B. 955 ; D. & M. 720 ; 1 New 
 Sess. Gas. 195; 8 Jur. 664; 13 L. 
 J.,M. C. 105. 
 
 Upon a motion for a criminal in- 
 foi-mation, it appeared that the ap- 
 plicant was an attorney, and an offi- 
 cer of the court, and the person 
 against whom the application was 
 made was a magistrate, and that 
 the latter had assaulted the former 
 in revenge, it was suggested, for his 
 having conducted some proceedings 
 against him on behalf a client, be- 
 fore justices, for a previous assault ; 
 the court refused to interpose its 
 extraordinary protection to the ap- 
 plicant, but left him to his remedy 
 by indictment or action. Reg. v. 
 Arrowsmith, 2 D., N. S. 704— B. C. 
 
 An information lies for a false re- 
 turn to a mandamus. Anon., Lofft, 
 285. 
 
 But refused against a man who 
 refiised to serve the office of one 
 of the sheriffs of London. Rex v. 
 Grosvenor, 1 Wils. 18 ; 2 Str. 1193. 
 
 The court granted an information 
 against a person refusing to take on 
 himself the office of sheriif, because 
 the vacancy of the office occasioned 
 the stop of public justice, and the 
 year would be nearly expired before 
 an indictment could be brought to 
 trial. Rex v. Woodrow, 2 T. R. 
 7319. 
 
 So, for endeavoring to procure the 
 appointment of certain persons to 
 be overseers of the poor with a view 
 to derive a private advantage to the 
 party. Eex v. Joliffe, 1 East, 154, n. 
 
 The surveyor of a high road hav- 
 ing improperly expended a large 
 sum of money, borrowed by the 
 trustees under an act of parliament, 
 without the consent of the trustees, 
 which the act required, to sanction 
 the expenditure, the court refused 
 
 a criminal information, no corrupt 
 motive being expressly alleged ; and 
 they will not convert a civil into a 
 criminal inquiry. Rex v. Friar, 1 
 Chit. 702. 
 
 An information was granted against 
 commissioners for exceeding their 
 powers. Mex v. Rogers, 1 Ld. Ken. 
 373. 
 
 But refused against twelve com- 
 missioners for pulling down a turn- 
 pike, on a suggestion of irregularity 
 in the time and manner of the meet- 
 ing. Anon, Loift, 199. 
 
 So, against a husband for endeav- 
 oring to retake his wife contrary to 
 articles. Rex v. Lane (Lord), 1 W. 
 Bl. 18. 
 
 So, for embezzling money collect- 
 ed on a church brief. Rex v. St. Bo- 
 tolph, Bishopsgate, 1 W. Bl. 443. 
 
 So, for burying a dead body 
 found in a river, without sending 
 for the coroner. Rex v. Prohy, 1 
 Ld. Ken. 250. 
 
 But granted for maliciously press- 
 ing. Rex V. Webh, 1 W. Bl. 19. 
 
 An information for a nuisance 
 will be refused, if an application to 
 the party is not shown. Rex v. 
 Green, 1 Ld. Ken. 379. 
 
 An information does not lie for a 
 riot, if the parties did not disperse, 
 and are within the penalty of the 
 riot act : otherwise it does. Anon., 
 Lofft, 253. 
 
 Nor for pretending to read the 
 riot act. Rex v. Spriggins, 1 W. 
 Bl. 2. 
 
 All persons by their presence 
 countenancing a riot are liable to 
 an information. Rex v. Hunt, 1 Ld. 
 Ken. 108. 
 
 An information was granted for 
 attempting to bribe a privy coun- 
 cillor to procure a reversionary pat- 
 ent of an office grantable by the 
 king under the great seal. Rex v. 
 Vaughan, 4 Burr. 2494. 
 
 An information was granted on 
 the deposition of two persons, for 
 the offering of a bribe by the de- 
 fendant at an election. Rex v. Ish- 
 erwood, 2 Ld. Ken. 202. 
 
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CRIMINAL INFOEJVIATIOISr. 
 
 13 
 
 8. Application for Information. 
 
 The party applying for an infor- 
 mation must come with clean hands 
 into court. Rex v. Eden, Lolft, 
 72. 
 
 Therefore an information will be 
 refused to cheats and gamblers 
 against others of the same descrip- 
 tion. Rex V. Peach, 1 Burr. 548, 
 
 So, an information for a challenge 
 was denied to the first sender of it. 
 Rex V. Hankey, 1 Burr. 316. 
 
 In order to maintain an applica- 
 tion for a criminal information, the 
 applicant must leave himself wholly 
 in the hands of the court, and in no 
 way whatever make lilDellous at- 
 tacks on the other side. Rex v. Not- 
 tingham Journal (Proprietors), 9 D. 
 P. C. 1042— Q. B. 
 
 Although a party applying for a 
 criminal information must show 
 himself to be an innocent party, yet 
 the court made a rule absolute for 
 such infoiTnation against the pub- 
 lisher of a libel, which affected sev- 
 eral parties, notwithstanding that 
 the character of the person princi- 
 pally attacked, and on whose affida- 
 vit the rule nisi had been obtained, 
 was impeached on showing cause. 
 Reg. Y.Gregory, 1 P. & D. 110 ; 8 
 A. & E. 907. 
 
 Where a party assaulted gave his 
 assailant into the custody of a police- 
 man, and gave him in charge at the 
 police station, wbereupon he was 
 locked up till he gave bail for his 
 appearance to answer the charge on 
 the following day, but no further 
 proceedings were taken, the court 
 made a rule absolute for a criminal 
 information for the assault. Reg. v. 
 ChoiU, 3 P. & D. 176.; 8 D. P. C. 
 476; 11 A. & E. 587; 4 Jur. 316. 
 
 But the court refused a rule for a 
 criminal information for an assault, 
 upon its appearing that the appli- 
 cant had taken out a warrant against 
 the other party ;' though the appli- 
 cant offered that it should be part 
 of the rule, that it should abandon 
 the proceedings on the warrant. 
 Anon., 4 A. & E. 576, n. 
 
 9. Time. 
 
 The motion for a criminal infor- 
 mation must be made by the law 
 officers of the crown, or by a bar- 
 rister, and not by a private individ- 
 ual. Rex V. Lancashire (Justices)^! 
 Chit. 602. 
 
 Where a party had been aware 
 of the facts on which the applica- 
 tion for a criminal infoi-mation 
 against a magistrate would be 
 founded early in Easter Term, and 
 did not make the application till 
 the last day but three of Trinity 
 Term, the court refused a rule nisi. 
 Reg. V. Harris, 8 Jur. 516; 13 L. J., 
 M. C. 162.— Q. B. 
 
 The court will not grant a rule 
 for criminal information in a case 
 where a whole tenn has been allow- 
 ed to intervene between the facts 
 alleged and the application to the 
 jurisdiction of the court. Reg. v. 
 Hext, 4 Jur. 339— B. C. 
 
 The court will not grant a rule 
 nisi for a criminal information on the 
 last day of term. Exparte Tanner, 
 3 Jur. 10— B. C. 
 
 Leave to file a criminal infonna- 
 tion for a libel should be applied for 
 in a reasonable time, before the ex- 
 piration of the second term after the 
 publication of it, if it come to the 
 knowledge of the prosecutor early 
 enough to enable him to move with- 
 in that period. Rex v. Jollie, 1 N. 
 & M. 483 ; 4 B. & Ad. 867. 
 
 10. Affidavits. 
 
 Contents.] — An affidavit to found 
 a motion for a criminal information 
 must distinctly negative the charge; 
 and it is usual to do so in the words 
 of the charge. Rex v. Wright, 2 
 Chit. 162. 
 
 If circumstances of suspicion only 
 are stated in affidavits in support of 
 a rule for a criminal information: — 
 Held, to be insufficient, unless the 
 deponents add their belief that the 
 party against whom it is moved act-, 
 ed from corrupt motives. Rex v. 
 WiUiamson, 3 B. «fc A. 582. 
 
 An information on Hen. 5, c." 4, 
 
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14 
 
 CRDIINAL INFORjVlATIOISr. 
 
 against a person for practising as an 
 attorney whilst he was under-sheriff, 
 was refused, because the affidavit did 
 not mention what particular acts he 
 did as an attorney, of which the 
 court should judge. Rex v. Bull, 1 
 Wils. 93. 
 
 If, in the affidavit to found a 
 criminal information, slanderous 
 words on the defendant be introduc- 
 ed, it will be a sufficient ground to 
 refuse the application. Rex v. Byrne, 
 2 N. & P. 152 ; 6 D. P. C. 36 ; 7 
 A. & E. 190. 
 
 Where a magistrate, in answer to 
 a rule for a criminal information, 
 stated that the applicant was' "a 
 shuffling and litigious fellow ;" the 
 court censured such language, al-- 
 thotigh they would not reject the 
 affidavit. Rex v. Burn, 7 A. & E. 
 190 ; 1 Jur. 659. 
 
 Intitling.] — Affidavits on motions 
 for leave to file criminal informa- 
 tions must not be intitled ; and if 
 they are, they cannot be read. Rex 
 v. Robinson, '6 T. R. 642. 
 
 Nor need the affidavits produced 
 on shewing cause against a rule. 
 Rex V. Harrison, 6 T. R. 60. 
 
 But all affidavits made after the 
 rule is made absolute, must be in- 
 titled. Rex V. Robinson, 6 T. R. 
 642. 
 
 Affidavit intitled in the King's 
 Bench, upon which the attorney- 
 general had filed an information ex- 
 officio against the defendant, permit- 
 ted to be read in aggravation after 
 judgment by default. Rex v. Mor- 
 gan, 11 East, 457. 
 
 Before whom Swom.^ — Affidavits 
 upon which an information is ' ap- 
 plied for, must not be sworn before 
 the attorney in the prosecution. Rex 
 V. Ipswich (Jailor), 2 Ld. Ken. 421. 
 
 Sernble, that an affidavit to found 
 a criminal information fc/r a libel 
 published in England, in parts be- 
 yond seas, may be sworn abroad. 
 Rex-Y. Satirist {Editor), 3 N. & M. 
 532. 
 
 An affidavit, to put off a trial at 
 nisi prius, being returned to the 
 court, they granted another inform- 
 ation on it against the defendant, 
 considering the affidavit taken at 
 nisi prius as taken under the au- 
 thority of the court. Rex v. JoUiffe, 
 4 T. R. 285. 
 
 JiiratJ] — An affidavit purported 
 in the body to have been sworn be- 
 fore a magistrate residing at A., in 
 the county of York, and the jurat 
 was "sworn before me (the magis- 
 trate) at A.," omitting the county, 
 the court stated that they were not 
 prepared to say that the jurat was 
 wrong. Rex v. Burn, 7 A. & E. 
 190 ; 2 ISr. & P. 152 ; 6 D. P. C. 
 36 ; 1 Jur. 659. 
 
 The county in which a deponent 
 is sworn to an affidavit to grant a 
 rule for a criminal infonnation,made 
 before a commissioner, must appear 
 in the jurat. Rex v. Tounghusband, 
 4 N. & M. 850. 
 
 In Mitigation or Aggravation.^ — 
 Wliere a defendant was convicted 
 of a libel, which purported to have 
 been written in consequence of his 
 having seen a statement of facts in 
 different newspapers, an affidavit 
 that he read those statements in such 
 newspapers may be received in miti- 
 gation of punishment ; but an affi- 
 davit that the facts contained in 
 those statements were true, is not 
 admissible. Rex v. Burdett, 4 B. & 
 A. 314. 
 
 When any defendant shall be 
 brought up for sentence on any in- 
 dictment, or information, after ver- 
 dict, the affidavits produced on the 
 part of the defendant, if any such 
 be produced, shall be first read, and 
 then any affidavits produced on the 
 part of the prosecution shall be- read; 
 after which the counsel for the de- 
 fendant shall be heard, and, lastly, 
 the counsel ■ foi" the prosecution. 
 Reg. Gen., K. B., M. T. 29 Geo. 3. 
 Rex V. Bunts, 2 T. R. 683. 
 
 When a defendant, who has suf- 
 
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CRIMINAL INFORMATION. 
 
 15 
 
 fered judgment by default in a crim- 
 inal prosecution, is brought up for 
 judgment, each party should come 
 prepared with affidavits disclosing 
 his own case (if he means to produce 
 any aiRdavit at all) : but, if in the 
 course of the inquiry the court wishes 
 to have any point further explained, 
 they will give the defendant an op- 
 portunity of answering it on a future 
 day. Rex v. Wilson, 4 T. R. 487. 
 
 Affidavits allowed to be read on a 
 defendant's being brought up for 
 judgment, stating that the defendant 
 had made use of expressions aggra- 
 vating liis guilt, in the presence of 
 two persons who related them to the 
 persons making the affidavits, and 
 the prosecutor swearing that the per- 
 sons who heard the expressions re- 
 fused to come forward, and were 
 supposed to be under the influence 
 of the defendant. JRex v. Archer, 2 
 T. R. 203,n. 
 
 Where the party applied for time 
 to send to Trinidad for an affidavit 
 of the truth of certain matters in a 
 libel, in order to show cause against 
 such a rule, the court would not grant 
 further time. Affidavits abroad, be- 
 fore judges there, and verified, al- 
 though receivable as affidavits of 
 debt, ai-e not to be received on rules 
 to show cause, in opposition to affi- 
 davits made in K. B. Sex v. Dra- 
 per, 3 Smith, 391. . 
 
 When a defendant who has been 
 convicted on an indictment comes 
 up to receive judgment, the prose- 
 cutor may read affidavits in aggra- 
 vation, though made by witnesses 
 who were examined at the trial, and 
 which affidavits he is at liberty to 
 answer. Hex v. Sharpness, 1 T. R. 
 228. 
 
 When a defendant is brought up 
 to receive judgment after convic- 
 tion, an affidavit by the prosecutor 
 in aggravation, stating that a third 
 person, who refuses to join in the 
 affidavit, had informed him that the 
 defendant after the trial had re- 
 peated in his hearing the libellous 
 matter for which he was indicted, is 
 
 not admissible ; at least, not without 
 swearing that such third person was 
 under the control or influence of the 
 defendant. Sex v. Pinkerton, 2 East, 
 357. And see Rex v. Withers, 3 Ti 
 R. 428, and Rex v. Mawhey, 6 T. R. 
 627. 
 
 11. Other Points of Practice. 
 Where a rule nisi for a criminal 
 information, though served before, 
 reached the hands of the defendant 
 only the day before it was to be 
 argued : Held, that it must be en- 
 laiged. Reg. v. Behj, 1 Jur. 1009 
 
 A party applying for an informa- 
 tion must waive his right of action ; 
 but if the court, on hearing the 
 whole matter, is of opinion that it 
 is a proper subject for an action, 
 they may give the party leave to 
 bring it. Itex v. Sparrow, 2 T. R. 
 198. 
 
 When a rule nisi, obtained for a 
 criminal information for a libel in 
 the Queen's Bench, is discharged on 
 showing cause, the applicant may 
 bring an action in another court for 
 publication of the same libel. Wah- 
 leyY.Oooke, 16 M. & W. 822 ; 4 D. 
 &L. 702 ; 11 Jur. 377; 16 L. J., 
 Exch. 225. 
 
 A rule nisi for a criminal inform- 
 ation will not be granted where a 
 former rule for the same matter 
 against the same defendant has been 
 discharged, although the second 
 motion is made upon additional affi- 
 davits. Rex V. Smithson, 1 N. & 
 M. 775; 4B. & Ad. 861. 
 
 Where a rule for a criminal in- 
 formation was enlarged, on condi- 
 tion that the defendant would ap- 
 pear and plead immediately, in the 
 event of its being made absolute : 
 Held, that he was entitled to rea- 
 sonable time. Reg. v. Muntz, 2 
 Jur. 538— Q. B. 
 
 Before the defendant could in- 
 struct his London solicitors, to plead 
 to the information, the prosecutor 
 had obtained a rule calling upon 
 him to show cause why the prose- 
 
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u 
 
 CRIMINAL INFORMATION. 
 
 cutor should not be at liberty to en- 
 ter an appearance and sign judg- 
 ment. The court made the rule ab- 
 solute, but awarded costs against 
 the prosecutor. Jb. 
 ' A joint information against sev- 
 eral cannot issue upon distinct rules 
 for one or more information or in- 
 formations against each. Jiex v. 
 Heydon, 3 Burr. 1270. 
 
 The court will not enlarge a rule 
 for a criminal information, in order 
 that the affidavit on which the rule 
 was obtained may be re-sworn. Rex 
 V. Oockshaw, 2 N. & M. 378. 
 
 The rule that when a party has 
 failed in an application to the court 
 in consequence of not being properly 
 prepared, he shall not be allowed to 
 renew it with new or amended ma- 
 terials, applies to public officers in 
 the discharge of their duties, as well 
 as to private individuals. Reg. v. 
 Pickles, 6 Jur. 1039— Q. B. 
 
 In a criminal information for the 
 non-repair of a highway, the court 
 has no power, either by common 
 law, or under 1 Will. 4, c. 22, s. 
 4, upon application by the prose- 
 cutor, to order the examination of a 
 witness upon interrogatories. Reg. 
 V. Upton St. Leonard'' s, 10 Q. B. 
 827; 12 Jur. 11; 17 L. J.,M. C. 13. 
 
 The court will not permit a sec- 
 ond application to be made for a 
 criminal information, unless leave 
 
 was reserved for the pui-pose on the 
 first application from very special 
 circumstances, such as being met 
 by affidavits which afterwards turn- 
 ed out to be based on perjury. Mvn- 
 ster, Ex parte, 20 L. T., N. S. 612 
 — Q. B. 
 
 12. Costs. 
 
 Under 4 &' 5 Will. & M. c. 18, 
 s. 2, a defendant in a criminal in- 
 formation which is not tried, or in 
 which a verdict is given for the de- 
 fendant, is entitled only to such an 
 amount of costs as equals the amount 
 of the prosecutor's recognizance. 
 Meg. V. Savile, 18 Q. B. 703. 
 
 Semble, that the proper mode of 
 obtaining such costs is for the de- 
 fendant to take out a side bar rule 
 for taxing the whole costs ; and, 
 upon that being done, he is entitled 
 to so much of them as equals the 
 amovjnt of the recognizance. lb. 
 
 13. Oonviction. 
 
 After conviction on a criminal in- 
 formation, to which objections were 
 taken, the defendant must stand 
 committed, pending the considera- 
 tion of the judgment, unless the 
 prosecutor expressly consents to his 
 standing out on bail. Reg v. Wad- 
 dington, 1 East, 143. 
 
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CRIMINAL LAW. 
 
 I. Peesons capable op committing 
 Ceimes and Misdemeanoes. 
 
 1. Agents, 17. 
 
 2. Insane Persons, 17. 
 
 3. 'bmfand Dumb, 21. 
 
 4. Presumed Coercion of Wife, 22. 
 
 5. Drunkards, 23. 
 
 6. Foreigners, 23. 
 
 7. Corporations, 23. 
 
 8. Infants, 24. 
 
 9. Peers, 24. 
 
 10. Persons under Compulsion, 24. 
 
 1. Agents. 
 
 If a man does, by means of an in- 
 nocent agent, an act wliich amounts 
 to a felony, the employer, and not 
 the agent is accountable for the act. 
 Reg. V. Bleasdale, 2 C. & K. 765— 
 Erie. 
 
 If A., by letter, desires B., an in- 
 nocent agent, to write the name of 
 S. to a receipt on a post oifice order, 
 and the innocent agent doesit, believ- 
 ing that he is authorized so to do, A. 
 is a principal in this forgery, and it 
 makes no difference, that, by the 
 letter, A. says to B. that he is at 
 liberty to sign the name of S., and 
 does not in express words direct him 
 to do so. Reg. v. Clifford, 2 C. & K. 
 202— Piatt. 
 
 The owner of works carried on 
 for his benefit by his agents and 
 servants, is liable to an indict- 
 ment for a nuisance, resulting from 
 the mode of carrying on the busi- 
 ness, although such nuisance was 
 committed in opposition to his or- 
 ders, and without his knowledge, 
 the proceedings by indictment in 
 
 such case being crimuial in foi-m 
 only. Reg. v. Stephens, 1 L. R. Q. 
 B. 702 ; 12 Jur., N. S. 961 ; 14 W. 
 R. 859 ; 35 L. J., Q. B. 251 : 14 L. 
 T. K S. 593. 
 
 2. Insane Persons. 
 
 39 ^ 40 Geo. 3, c. 94; 56 Geo. 3, 
 c. 117 ; 1 4"2 Vict. c. 14, extended 
 bg 3 Sf i Vict. c. 54, and amended by 
 27 4- 28 Vict. c. 29. 
 
 Defense of Insanity.^ — To justify 
 the acquittal of a prisoner indicted 
 for murder, on the ground of insan- 
 ity, the jury must be satisfied that 
 he was incapable of judging be- 
 tween right and wrong ; and that, . 
 at the time of committing the act, 
 he did not consider that it was an 
 offence against the laws of God and 
 nature. Rex v. Offord, 5 C. & P. 
 1 68 — Lyndhurst. 
 
 If, to an indictment for treason 
 for attempting the life of the Sov- 
 ereign, by shooting at her Majesty, 
 the defence is insanity, the question 
 for the jury will be, whether the 
 prisoner was labouring under that 
 species of insanity which satisfies 
 them that he was quite unaware of 
 the nature, character, and conse- 
 quences of the act he was commit- 
 ting, or, in other words, whether he 
 was under the influence of a dis- 
 eased mind, and was really uncon- 
 scious at the time he was commit- 
 ting the act that it was a crime. 
 Reg. V. Oxford, 9 C. & P. 525— 
 Denman, Alderson, and Patteson. 
 
 Semble, that, notwithstanding a 
 
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18 
 
 PERSOIsrS CAPABLE OF CRIMES. 
 
 party accused did an act which was 
 in itself criminal, under the influence 
 of an insane delusion, with a view 
 of repressing or avenging some sup- 
 posed grievance or injury, or of pro- 
 ducing some public benefit, he is 
 nevertheless punishable if he knew 
 at the time that he was acting con- 
 trary to law. Macnaghten^s case, 
 10 C. & F. 200 ; 8 Scott, K R. 595 ; 
 1 C. & K. 130. 
 
 If the accused was conscious that 
 the act was one which he ought not 
 to do, and if the act was at the 
 same time contrary to law, he is 
 punishable. In all cases of this 
 kind the jurors ought to be told, 
 that every man is presumed to be 
 sane, and to possess a suificient de- 
 gree of reason to be responsible for 
 his crimes, until the contrary is 
 proved to their satisfaction; and 
 that, to establish a defence on the 
 ground of insanity, it must be clear- 
 ly proved that, at the time of com- 
 mitting the act, the party accused 
 was laboring under such a defect of 
 reason, from disease of the mind, as 
 not to know the nature and quality 
 of the act he was doing, or that what 
 he was doing was wrong. lb. 
 
 A party labouring under a partial 
 delusion must be considered in the 
 same situation, as to responsibility, 
 as if the facts, in respect to which 
 the delusion exists, were real. lb. 
 
 Where an accused person is sup- 
 posed to be insane, a medical man 
 who has been present in court and 
 heard the evidence may be asked, 
 as a matter of science, whether the 
 facts stated by the witnesses, sup- 
 posing them to be true, show a state 
 of mind incapable of distinguishing 
 between right and wrong. lb. ; S. 
 P. Rex V. Wright, R. &R. C. C.456 ; 
 Hex V. Searle, 1 M. & Rob. 75. 
 
 To entitle a prisoner to be ac- 
 quitted on the ground of insanity he 
 must, at the time of the commit- 
 ting of the oifence, have been so in- 
 sane that he did not know right from 
 wrong. Beg. v Higginson, 1 C. & 
 K. 129— Maule. 
 
 When the defence of insanity is 
 set up in order to warrant the jury 
 in acquitting the prisoner, it must 
 be proved affirmatively that he is 
 insane ; if the fact be left in doubt, 
 and if the crime charged in the indict- 
 ment is proved, it is their duty to 
 convict. Reg, v. Stokes, 3 C. & K. 
 185— Rolfe.. 
 
 On a trial for murder, evidence 
 was called, on the prisoner's behalf, 
 to prove his insanity. A physician 
 who had been in court during the 
 whole trial was then called on the 
 part of the prosecution, and asked 
 whether, having heard the whole 
 evidence, he was of opinion that the 
 prisoner, at the time he committed 
 the alleged act, was of unsound 
 mind ? Held, notwithstanding the 
 opinion of the judges in Reg. v. 
 Macnaghten (supra), that such a 
 question ought not to be put, but 
 that the proper mode of examina- 
 tion was to take particular facts, 
 and assuming them to be true, to 
 ask the witness whether, in his judg- 
 ment, they were indicative of in- 
 sanity on the part of the prisoner at 
 the time the alleged act was com- 
 mitted. Reg. V, Frances, 4 Cox, C. 
 C. 57— Alderson. 
 
 Where a prisoner sets up insanity 
 as a ground of defence, one cardinal 
 rule is, that the burden of proving 
 his innocence on that ground rests 
 on the party accused. The question 
 in such a case for the jury is not 
 whether tlie prisoner was of sound 
 mind, but whether he has made out 
 to their satisfaction that he was not- 
 of sound mind. The jury may come 
 to a conclusion on this point from 
 the conduct and acts of the accused 
 shortly before and down to the 
 commission of the alleged crime. 
 Although insanity on one point, 
 for instance — a delusion as to prop- 
 erty — will not exempt a party from 
 responsibility, the fact is not imma- 
 terial in considering his responsibil- 
 ity at another time and on another 
 subject. The want of motive for 
 the commission of the crime, and 
 
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rsrSANE PERSONS. 
 
 19 
 
 its being committed under circum- 
 stances which render detection in- 
 evitable, are important points for 
 the consideration of the jury, when 
 coupled with evidence of insanity 
 on any particular point. Reg. v. 
 Layton, 4 Cox, C. C. 149— Rolfe. 
 
 To ask a witness whether, in his 
 opinion, the prisoner is capable of 
 judging between right and wrong, 
 is an improper question, for that is 
 what no witness thought of, or is 
 prepared to answer. Ih. 
 
 A married woman, having killed 
 her husband immediately after an 
 apparent recovery from a disease 
 (the result of childbirth) which 
 caused a great loss of blood, and 
 exhausted the vessels of the brain, 
 and thus so weakened its power and 
 so tended to produce insane delu- 
 sions of the senses, which, while 
 suifering under such disease, she 
 complained of, and which, by her 
 own account, had been renewed at 
 the time of the act of homicide (al- 
 though they were not such as would 
 lead to it) : — Held, evidence from 
 which a jury might properly find 
 that she was not in such a state of 
 mind at the time of the act as to 
 know its nature or be accountable 
 for it. Reg. v. Law, 2 F. & F. 836 
 —Erie. 
 
 Where a married woman, fondly 
 attached to her children, and ap- 
 parently most happy in her family, 
 had poisoned two of them with 
 some evidence of deliberation and 
 design ; but it appeared that there 
 was insanity in her family ; and, 
 from her demeanor before and after 
 the act, which, although not wholly 
 • irrational, yet was strangely erratic 
 and excited ; and from recent ante- 
 cedents, and the presence of certain 
 exciting causes of insanity, and her 
 own account of her sensations, the 
 medical men were of opinion that 
 she was labouring under actual cer- 
 ebral disease, and that she was in a 
 paroxysm of insanity at the time of 
 the act ; this was left to the jury as 
 evidence on which they might rightly 
 
 find her not guilty on the ground of 
 insanity. Reg. v. Vyse, 3 F. & F. 
 247— Wightman. 
 
 The delusions which indicate a 
 defect of sanity such as will relieve 
 a person from criminal responsibil- 
 ity, are delusions of the senses, or 
 such as relate to facts or objects — 
 not mere wrong notions or impres- 
 sions, or of a moral nature ; and 
 the aberration must be mental, not 
 moral, to affect the intellect of the 
 individual. It is not enough that 
 they show a diseased or a depraved 
 state of mind, or an aberration of 
 the moral feelings, the sense of right 
 and wrong being still, although it 
 may be perverted, yet not destroyed ; 
 and the theory of a moral insanity, 
 or insanity of the moral feelings, 
 while the sense of right and wrong 
 remains, is not to be reconciled 
 with the legal doctrine on the sub- 
 ject. Reg. V. Burton, 3 F. & F. 772 
 — Wightman. 
 
 Where, upon a trial for murder, 
 the plea of insanity is set up, the 
 question for the jury is. Did the 
 prisoner do the act under a delu- 
 sion, believing it to be other than it 
 was ? If he knew what he was do- 
 ing, and that it was likely to cause 
 death, and was contrary to the law 
 of God and man, and that the law 
 directed that persons who did such 
 acts should be punished, he is guilty 
 of murder. JReg. v. Townky, 3 F. 
 & F. 839 -Martin. 
 
 The circumstances of a person 
 having acted under an irresistible 
 influence to the commission of hom- 
 icide is no defence, if at the time he 
 committed the act he knew he was 
 doing what was wrong. Reg. v. 
 Haynes, 1 F. & F. 666— Bramwell. 
 
 On a trial for murder, the defence 
 of insanity by the evidence showing 
 a great amount of senseless extrav- 
 agance and absurd eccentricity of 
 conduct, coupled with habits of ex- 
 cessive intemperance, causing fits of 
 delirium tremens, the prisoner, how- 
 ever, not having been labouring un- 
 der the effects of such a fi lat the 
 
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20 
 
 PERSONS CAPABLE OF CRIMES. 
 
 time of the act, and the circum- 
 stances showing sense and delibera- 
 tion, and a perfect understanding of 
 the nature of the act : — Held, that 
 the evidence was not sufficient to 
 support the defence, as it rather 
 tended to show wilful excesses and 
 extreme folly than mental incapa- 
 city. Reg. V. Leigh, 4 F. & F. 915 
 —Erie. 
 
 A mere uncontrollable impulse of 
 the mind, co-existing with the full 
 possession of the reasoning powers, 
 will not warrant an acquittal on the 
 ground of insanity; the question for 
 the jury being, whether the prisoner, 
 at the time he committed the act, 
 knew the character and nature of 
 the act, and that it was a wi-ongful 
 one. Iteg. v. Barton, 3 Cox, C. C. 
 275— Parke. 
 
 Where a person is in a state of 
 mind in which she is liable to fits of 
 madness, it is for the jury to consider 
 whether' the act done was during 
 such a fit, though there is nothing 
 before or after the act to indicate it, 
 and though there is some evidence 
 of design and malice. A medical 
 witness should give his opinion as to 
 the state of mind, not as to the 
 responsibility of the prisoner ; the 
 latter is for the jury under the direc- 
 tion of the judge. Reg. v. Rich- 
 ards, 1 F. & F. 87— Crowder. 
 
 On an indictment for maliciously 
 setting fire to a building, it is not 
 necessary to prove actual ill-will in 
 the prisoner towards the owner ; and 
 in order to justify a jury in acquit- 
 ting a prisoner on the ground of in- 
 sanity, they must believe that he 
 did not know right from wrong ; 
 but if they find that the prisoner, 
 when he did the act, was in such a 
 state of mind that he was not con- 
 scious that the efiect of it would be 
 to injure any other person : — Held, 
 that this will amount to a general 
 verdict of not guilty. Reg7\. Da- 
 vies, 1 F. & F. 69— Crompton. 
 
 Arraignment.']— WhevQ a bill had 
 been found against an insane pris- 
 oner for murder, and he had been 
 
 removed by order of the Secretary 
 of State to the County lunatic asy- 
 lum, and the governor of the asylum 
 had made an affidavit that he was 
 in a hopeless state of insanity, the 
 court will nevertheless require that 
 he be brought up, and his alleged 
 insanity inquired into by a jury, un- 
 less it "is sho-sv-n that it would be 
 dangerous to bring him into court, 
 and in that case tfie court will allow 
 the -ndtnesses their costs, and bind 
 them over to appear when called 
 upon. Reg. v. Dwerryhouse, 2 Cox, 
 C. C. 446— Patteson. 
 
 A party having been indicted for 
 a misdemeanor, of uttering seditious 
 words, and upon his arraignment 
 refiising to plead, and showing symp- 
 toms of iasanity; and an inquest 
 being forthwith taken under 39 & 
 40 Geo. 3, c. 94, s. 2, to try whether 
 he was insane or not : — Held, first, 
 that the jury might form their own 
 judgment of the present state of the 
 prisoner's mind from his demeanor 
 while the inquest was being taken ; 
 and might thereupon find him to be 
 insane, without any e^•idence being 
 given as to his present state. Reg. 
 V. Goode, 7 A. &, E. 536. 
 
 Held, secondly, that, upon his 
 showing strong symptoms of insan- 
 ity in court durins; the takino- of the 
 mquest, it became unnecessary to 
 ask him whether he would cross- 
 examine the Avitnesses, or would 
 offer anv remark on the evidence. 
 Ih. 
 
 A grand jury has no authority by 
 law to ignore a bill for murder on 
 the ground of insanity ; it is their 
 duty to find the bill ; otherwise the 
 court cannot order the detention of 
 the party duiiug the pleasure of the 
 crown, either on arraignment or 
 trial, under 39 & 40 Geo. 3, c. 94, 
 ss. 1 & 2. Reg. v. Hodges, 8 C. & 
 P. 195— Alderson. 
 
 The prisoner was indicted for 
 shooting at his wife with intent to 
 murder her, and was defended by 
 counsel, who set up for him the de- 
 fence of insanity. The prisoner 
 
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DEAF AND DUMB. 
 
 21 
 
 however, objected to such a defence, 
 asserting that he was not insane ; 
 and he was allowed by the judge to 
 suggest questions to be piit by his 
 lordship to the witnesses for the 
 prosecution, to negative the siipposi- 
 tion that he was insane ; and the 
 judge also, at the request of the 
 prisoner, allowed additional witnes- 
 es to be called on his behalf for the 
 same purpose. *rhey, however, fail- 
 ed in shewing that the defence was 
 an incorrect one ; and, on the con- 
 trary, their evidence tended to es- 
 tablish it more clearly, and the 
 prisoner was acqmtted on the ground 
 of insanity. Reg. v. Pearce, 9 C. & 
 P. 667— Bosanquet. 
 
 Where a jury is impanneled to 
 try whether a prisoner is insane or 
 not at the time when he is brought 
 up to plead to an indictment, the 
 counsel for the prosecution is to be- 
 gin and call his witnesses to prove 
 the sanity of the prisoner. Reg. v. 
 Bavies, 6 Cox, C. C. 326 ; 3 C. & K. 
 328— WilHams. 
 
 But where a jury is impanneled, 
 at the instance of the counsel for a 
 prisoner, to try whether he is insane 
 or not at the time when brought up ' 
 to plead to an indictment, the proof 
 of the insanity is incumbent on his 
 counsel. Reg. v. Turton, 6 Cox, C. 
 C. 385— Cresswell. 
 
 Gommitment.'\ — A commitment of 
 an insane person, under 39 & 40 
 Geo. 3, c. 94, s. 3, is not a commit- 
 ment m execution, and is not to be 
 construed with the same strictness. 
 Rex V. Gourlay, 7 B. & C. 669 ; 1 M. 
 & E. 619. But see 1 & 2 Vict.c.l4. 
 
 Property. ] — Under 3 & 4 Vict. c. 
 54, s. 2, which for the repayment to 
 parishes or counties of expenses in- 
 curred in the maintenance of crimi- 
 nal lunatics, enables justices to order 
 the overseers of any parish where 
 money, goods or chattels of the lu- 
 natic shall be, to seize the money or 
 seize and sell the goods and chat- 
 tels, justices cannot authorise the 
 
 Digitized by Microsoft® 
 
 overseers to levy a debt claimed to 
 be due to the lunatic by ordering 
 them to seize a sum of money in the 
 possession of the alleged debtor. 
 And on motion for a mandamus at 
 the instance of such overseers, call- 
 ing upon the alleged debtors to pay 
 them such money, the prosecutors 
 adducing evidence to shew that such 
 debt was due, and that the sum de- 
 manded was in the possession of the 
 alleged debtor, the court, on cause 
 shewn, refused a mandamus. Reg^ 
 V. Longhorn, 17 Q. B. 77. 
 
 3. Deaf and Dumb. 
 
 A person, deaf and dumb, was to 
 be tried for a capital felony : the 
 judge ordered a jury to be impan- 
 neled, to try whether he was mute 
 by the visitation of God ; the jury 
 found that he Was so. The jury was 
 then sworn to try whether he was 
 able to plead, which they found in 
 the aiiii-mative ; and the prisoner by 
 a sign pleaded not guilty. The j udge 
 then ordered the jury to be sworn to 
 try whether the prisoner was now 
 sane or not ; and on the question, he 
 directed the jury to consider wheth- 
 er the prisoner had sufficient intel- 
 lect to comprehend the course of the 
 proceedings, so as to make a proper 
 defence, to challenge any juror he 
 might wish to object to, and to com- 
 prehend the details of the evidence ; 
 and that if they thought he had not, 
 they should find him not of sane 
 mind. The jury did so, and the 
 judge ordered the prisoner to be 
 detained under 39 & 40 Geo. 3, c. 
 94, s. 2. Rex V. Pritchard, 7 C. & 
 P. 303— Alderson. 
 
 A person deaf and dumb was to 
 be tried for a misdemeanor. A jury 
 was impanneled to try whether he 
 was miite by the visitation of God, 
 and on their finding that he w;as so, 
 they were sworn to try if he was of 
 sound mind, and on their finding 
 that he was so, his counsel pleaded 
 not guilty for him, and the trial 
 proceeded in the usual manner, and 
 the evidence was not interpreted to 
 
22 
 
 PERSONS CAPABLE OF CRDJES. 
 
 the prisoner. 
 C. & K. 121- 
 
 Heff. V. Whitfield, 
 -Williams. 
 
 4. Presumed Coercion of Wife. 
 
 A wife cannot commit larceny in 
 the company of her husband ; for it 
 is deemed his coercion, and not her 
 voluntary act ; yet, if she does it in 
 his absence, and by his mere com- 
 mand, she is then punishable as if 
 she was sole, and the husband, it is 
 said, may be accessory to the wife. 
 Anon., 2 East, P. C. 559. 
 
 The law, out of tenderness to the 
 wife, if a felony is committed in the 
 
 presence of the husband, raises a" indicted for a misdemeanor in ut- 
 
 presumption prima facie and prima 
 facie only, that it was done under 
 his coercion. Hex v. Hughes, 2 Le- 
 win, C. C. 229— Thompson. 
 
 A wife went from house to house 
 uttering base coin. Her husband 
 accompanied her, but remained out- 
 side : — Held, that the wife acted 
 under the husband's coercion. Oon- 
 ollyh case, 2 Lewin, C. C. 229^- 
 Bayley. 
 
 A wife, by her husband's order 
 and procuration, but in his absence, 
 knowingly uttered a forged order 
 and certificate for the payment of 
 prize-money : — Held, that the pre- 
 sumption of coercion at the time of 
 uttering did not arise, as the hus- 
 band was absent ; and that the wife 
 might be convicted of the uttering, 
 and the husband of procuring. Eex 
 V. Morris, R. & R. C. C. 270. 
 
 On an indictment against a mar- 
 ried woman for falsely swearing 
 herself to be next of kin, and pro- 
 curing administration : — Held, that 
 • she might be guilty, although her 
 husband was with her when she 
 took the oath. Rex v. Dicks, 1 
 Russ. 0. & M. 16. 
 
 In the case of Rex v. Archer, 1 
 M. C._ C. 143, husband and wife 
 were jointly indicted for receiving 
 stolen goods, and both convicted : — 
 Held, that as the charge against the 
 husband and wife was joint, and it 
 had not been left to the jury to say 
 whether she received the goods in 
 
 the absence of the husband, tlie 
 conviction of the wife was wrong, 
 though she had been more active 
 than her husband. 
 
 If larceny is committed jointly 
 by husband and wife, the latter is 
 entitled to be acquitted, as she must 
 be presumed to be under his coer- 
 cion and control : and where she 
 was indicted as " the wife of A.," 
 it is sufficient proof that she was so, 
 without adducing further evidence 
 to prove that fact. Rex v. Knight, 
 1 C. & P. 116— Park. 
 
 Husband and wife were jointly 
 
 Digitized by Microsoft® 
 
 tering counterfeit coin : — ^Held, that 
 the wife was entitled to an acquit- 
 tal, as it appeared that she uttered 
 the money in the presence of her 
 husband. Rex v. Price, 8 C. & P. 
 19 — Park, Bosanquet and Coltman. 
 
 Where stolen goods are found in 
 a man's house, and his wife, in his 
 presence, makes a statement exon- 
 erating him, and criminating her- 
 self: — Semble, that, with respect to 
 the admissibility of this statement 
 in evidence against her, it may be 
 a question whether the doctrine of 
 presumed coercion does not apply. 
 Rex V. Laugher, 2 C. & K. 225. 
 
 Where a woman is charged with 
 comforting, harbouring and assisting 
 a man who has committed a mur- 
 der, if the counsel for the prosecii- 
 tion has reason to believe that she 
 was married to the man, and it ap- 
 pears clearly that she considered 
 herself as his wife, and lived with 
 him as such for years, he will be 
 justified in not offering any evi- 
 dence against her, even though he 
 has also reason to believe that the 
 marriage was in some respects irreg- 
 ular, and, probably, invalid. Reg. 
 V. Good, 1 C. & K. 185— Alderson 
 and Coltman. 
 
 If husband and wife jointly com- 
 mit a murder, both are equally amen- 
 able to the criminal law, as the doc- 
 trine of presumed coercion of the 
 wife does not apply to murder. Reg. 
 V. Manning, 2 C. & K. 903. 
 
DRUNKAKDS— FOREIGNERS— COEPOEATIONS. 
 
 23 
 
 Husband and wife were jointly 
 tried upon an indictment charging 
 them .with feloniously wounding, 
 with intent to disfigure. The jury 
 found that the wife, at the time of 
 the commission of the offense, acted 
 imder the coercion of her husband, 
 and that she herself did not person- 
 ally inflict any violence: — ^Held,that 
 she could not be convicted. Reg. v. 
 Smith, Dears. & B. C. C. 553 ; 4 
 Jur., N. S. 395 ; 27 L. J., M. C. 
 204; 8 Cox, C. C. 27. 
 
 5. Drunkards. 
 
 Drunkenness is not, in law, any 
 excuse for crime. Pearsori'i case, 2 
 Lewin, C. C. 144— Park. 
 
 Li case of stabbing where the 
 prisoner has used a deadly weapon, 
 the fact that he was drunk does not 
 at all alter the nature of the case ; 
 but if he had intemperately used 
 an instrument, not in its nature a 
 deadly weapon, at a time when he 
 was drunk, the fact of his being 
 drunk might induce the jury to less 
 strongly infer a malicious intent in 
 him at the time. Bex v. Median, 
 7 C. & P. 297— Alderson. 
 
 If a man is drunk, this is no ex- 
 cuse for any crime he may commit ; 
 but where provocation by a blow 
 has been given to a person, who 
 kills another with a weapon which 
 he happens to have in his hand, the 
 drunkemiess of the prisoner may be 
 considered on the question, whether 
 he was excited by passion, or acted 
 from mahce ; aS, also, it may be on 
 the question, whether expressions 
 used by the prisoner manifested a 
 deliberate purpose, or were merely 
 the idle expressions of a drunken 
 man. R&x, v. Thomas, 7 C. & P. 
 817— Parke. 
 
 Though drunkenness is no excuse 
 for crime, it may be taken into ac- 
 count by the jury, when consider- 
 ing the motive or intent of a person 
 acting under its influence. Reg. v. 
 Gamlen, 1 P. & F. 90— Crowder. 
 
 Where, on the trial of an indict- 
 ment for an attempt to commit sui- 
 
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 cide, it appeared that the prisoner 
 was at the time of the alleged of- 
 fence so drunk that she did not 
 know what she did : — Held, that 
 this negatived the attempt to com- 
 mit suicide. Reg. v. Moore, 3 C. <S^ 
 K. 319 ; 16 Jur. 750— Jervis. 
 
 6. foreigners. 
 
 A person naturalized in this coun- 
 try becomes, to all intents and pur- 
 poses, a British subject, and ceases 
 to be an alien. Reg. v. Manning, 2 
 C. & K. 903 ; 13 Jur. 962 ; T. & 
 M. 155. 
 
 It is no defence on behalf of a 
 foreigner charged in England with 
 a crime committed there, that he 
 did not know he was doing wrong, 
 the act not being an offence in his 
 own country. But though it is not 
 a defence in law, yet it is a matter 
 to be considered in mitigation of 
 punishraent. Rex v. Hsop, 7 C. & 
 P. 456 — Bosanquet and Vaughan. 
 
 7. Corporations. 
 
 A corporation must prosecute in 
 its corporate name. Rex v. Patrick, 
 1 Leach, C. C. 253. 
 
 A corporation aggregate may be 
 guilty of a misdemeanor by non- 
 feasance, such as the nonrepair of 
 bridges which it is their duty to 
 repair. Reg. v. Birmingham and 
 Gloucester Railway Co., 3 Railw. 
 Cas. 148; 2 G. & D. 236 ; 9 C. & 
 P. 469 ; 3 Q. B. 223 ; 6 Jur. 804. 
 
 In such a case an indictment is 
 maintainable against it in its cor- 
 porate name. lb. 
 
 If indicted in the Queen's Bench, 
 they can appear by attorney ; btit 
 if indicted at the assizes, or sessions, 
 where they cannot appear by attor- 
 ney, they should apply for a certio- 
 rari and appear by attorney, and 
 compel appearance by distress in- 
 finite. Reg. V. Birmingham and 
 Gloucester Railway Company, 9 C. 
 & P. 469— Parke. See S. C, 3 Q. 
 B. 223 ; 1 G. & D. 457 ; 5 Jur. 40. 
 
 An indictment will lie against a 
 corporation for a misfeasance at 
 
24 
 
 PERSONS CAPABLE OP CHIMES. 
 
 common law. Reg. v. Great North 
 of England Railway Gompany., 9 Q. 
 
 B. 315 ; 10 Jur. 755 ; 16 L. J., M. 
 
 C. 16. 
 
 An incorporated company de- 
 murred to a bill in equity, because 
 the discovery thereby sought might 
 subject it to criminal prosecution 
 under 59 Geo. 3, c. 69 (Foreign En- 
 listment Act) : — Held, that a corpo- 
 ration was not liable to be indicted 
 under that act, and the court over- 
 ruled the demurrer. Two Sicilies 
 (King) v. Willcox, 1 Sim., N. S. 
 334 ; 14 Jur. 751 ; 19 L. J. Chanc. 
 488. 
 
 Where an indictment against a 
 corporation, for the non-repair of a 
 highway, is removed by certiorari, 
 at the instance of the prosecutor, 
 the prosecutor is not required by 16 
 & 17 Vict. c. 30, s. 5, to enter into 
 recognisances to pay the defendant's 
 costs in case of acquittal, indict- 
 ments against corporations being 
 excepted from the operation of the 
 act. Reg. V. Manchester (Mayor, 
 Sfc), 7 El. & Bl. 453 ; 3 Jur., N. 
 S. 839 ; 26 L. J., M. C. 65. 
 
 8. Infants. 
 
 "See 10 & 11 Vict. c. 82, and 13 
 " & 14 Vict. c. 37, for the speedy 
 " and summary trial, conviction and 
 "punishment of juvenile offenders; 
 " and as to the care and education 
 " of infants convicted of felony by 
 " the Court of Chancery, see 3 & 4 
 "Vict. c. 90." 
 
 An infant, under the age of seven 
 years, cannot incur the guilt of fel- 
 ony. Marsh v. Loader, 14 C. B., 
 N. S. 535 ; 11 W. R. 784. 
 
 If a child, more than seven and 
 under fourteen years of age, is in- 
 dicted for felony, it will be left to 
 the jury to say whether the offence 
 was committed by him, and, if so, 
 whether, at the time of the offence, 
 the prisoner had a guilty knowledge 
 that he or she was doing wrong. 
 The presumption of law is, that a 
 child of that age has not such guilty 
 knowledge, iinless the contrary is 
 
 proved. Rex v. Owen, 4 C. & P. 
 236— Littledale. 
 
 A boy who, at the time of the 
 commission of the -offence of rape, 
 is under fourteen, cannot, in point 
 of law, be guilty of an assault with 
 intent to commit a rape ; and if he 
 is under that age, no evidence is 
 admissible to show that, in point of 
 fact, he could commit the offence. 
 Reg. V. PhiUips, 8 C. & P. 736— 
 Patteson : S. P., Rex v. Groom- 
 bridge, 7 C. & P. 582— Gaselee. 
 
 A boy under fourteen years of 
 age cannot, by law, be convicted 
 of feloniously carnally knowing and 
 abusing a girl under ten years old, 
 even though it was proved that he 
 was arrived at the full state of pu- 
 berty. Reg, V. Jordan, 9 C. & P. 
 118- Williams : S. P. Reg. r. Bri- 
 milow, 9 C. & P. 366 ; 2 M. C. C. 
 122. 
 
 A child under fourteen, ijidicted 
 for murder, must be. proved con- 
 scious of the nature of the act. 
 Reg. V. Vamplew, 3 P. & F. 520— 
 Pollock. 
 
 9. Peers. 
 [4^-5 Vict. c. 22.] 
 
 10. Persons under Gompulsion, 
 
 An apprehension, though ever so 
 well grounded, of having property 
 wasted or destroyed, or of suffering 
 any other mischief not endangering 
 the person, will afford no excuse for 
 joining or continuing with rebels. 
 Rex V. M' Growther, 1 East, P. C. 
 71. 
 
 But it is otherwise if the party 
 joins from fear of death or by com- 
 pulsion. Rex V. Gordon, 1 East, P. 
 C. 71. 
 
 On an indictment on 7 & 8 Geo. 
 4, c. 30, s. 4, for breaking a thresh- 
 ing-machine, the judge allowed a 
 witness to be asked whether the 
 mob, by whom the machine was 
 broken, did not compel persons to 
 go with them, and then compel each 
 person to give one blow to the ma- 
 
 Digitized by Microsoft® 
 
PRINCIPALS. 
 
 25 
 
 chine ; and also, at the , time when 
 the prisoner and himself were forced 
 to join the mob, they did not agree 
 together to run away from the mob 
 the first opportunity. Rex v. Orutch- 
 hy, 5 C. & P. 133. 
 
 A., who was insane, collected a 
 number of persons together, who 
 armed themselves, having a com- 
 mon purpose of resisting the law- 
 fully constituted authorities ; A. 
 having declared that he would 
 cut down any constable who came 
 against him. A., in the presence of 
 0. and D., two of the persons of his 
 party, afterwards shot an assistant 
 of a constable, who came to appre- 
 hend A. under a warrant : — Held, 
 that C. and D. were guilty of mur- 
 der, as principals^ in the first degree, 
 and that any apprehension that C. 
 and D. had of personal danger to 
 themselves from A., was no ground 
 of defence for continuing with him 
 after he had so declared his pur- 
 pose ; and also, that it was no 
 ground of defence that A. and his 
 party had no distinct or particular 
 object in view when they assembled 
 together and aiTned themselves. 
 Reg. V. Tykr, 8 C. & P. 616— Den- 
 man. 
 
 The apprehension of personal dan- 
 ger does not furnish any excuse for 
 assisting in doing any act which is 
 illegal. Ih. 
 
 n. 
 
 Peincipais, Accessoeies and 
 Abettoes. 
 
 Principals, 2!j. 
 Accessories, 26. 
 Abettors, 28. 
 Trial, 28. 
 Indictment, 29. 
 Evidence, 30. 
 
 1. Principals. 
 If several are out for the purpose 
 of committing a felony, and upon 
 an alarm run different ways, and 
 
 Digitized by Microsoft® 
 
 one of them maims a pursuer to 
 avoid being taken, the others are 
 not to be considered principals in 
 such act. Rex v. White, R. & R. 
 C. C. 99. 
 
 If several act in concert to steal 
 a man's goods, and he is induced 
 by fraud to trust one of them in the 
 presence of the others with the pos- 
 session of the goods, and then an- 
 other of the party entices the owner 
 away, in order that the party who 
 has obtained possession of the goods 
 may carry them off, all will be guilty 
 of the felony ; the receipt by one, 
 under such circumstances, being a 
 felonious taking by all. Rex v. 
 Standhy, R. & R. C. C. 805. 
 
 Going towards a place where a 
 felony is to be committed in order 
 to assist in carrying off the property, 
 and assisting accordingly, will not 
 make a man a principal, if he was 
 at such a distance at the time of the 
 felonious taking as not to be able 
 to assist in it. Rex v. Kelly, R. & 
 R. C. 0. 421. 
 
 A person waiting outside of a 
 house to receive goods, which a con- 
 federate is stealing in the house, is 
 a principal in the theft. Rex v. 
 Owen, 1 M. C. C. 96. 
 
 Where a prosecutor left his goods 
 in a cart standing in the street, and 
 M. came and led the cart away, 
 and having taken it a short distance, 
 delivered it to another man, with 
 directions to take it to his, M's, 
 house. Upon the cart arriving at 
 the house, S., who was at work in 
 the cellar, having directed a com- 
 panion to blow out the light, came 
 up and assisted in removing the 
 
 foods from the cart : — Held, that 
 . could not be indicted as a princi- 
 pal. Rex V. M'MaUn, R. & R. C. 
 C. 333, n. — Lawrence. And see 
 Rex V. Dyer, 2 East, P. C. 767. 
 
 All those who assemble them- 
 selves together, with an intent even 
 to commit a trespass, the execution 
 whereof causes a felony to be com- 
 mitted ; and continue together, abet- 
 ting one another, till they have act- 
 
26 
 
 PREsrCIPALS, ACCESSORIES, ETC. 
 
 ually put their design into execu- 
 tion ; and also all those who are 
 present when a felony is commit- 
 ted, and abet the doing of it, are 
 principals in felony. Beg. v. How- 
 ell, 9 C. & P. 437— Littledale. 
 
 In misdemeanors all guilty par- 
 ticipators are principals. Reg. v. 
 Greenwood, 16 Jur. S90 ; 21 L. J., 
 M. C. 127 ; 2 Den. C. C. 453. 
 
 It is not sufficient to make a man 
 a principal in uttering a forged note, 
 tlxat he came with the utterer to 
 the town where it was uttered, went 
 out with him from the inn where 
 they put vip, joined him again in the 
 street after the uttering at a little 
 distance, and ran away when the 
 utterer was apprehended. Rex v. 
 Davis, R. & R. C. C. 113— Bayley. 
 
 If A. unlocks a door of a room of 
 which he has the key, in order to 
 ■ allow B. to commit a larceny in it, 
 and A. then goes away, and B., in 
 his absence, enters the room and 
 removes articles out of it, A. is not 
 a principal in the larceny. Reg. v. 
 Jeffries, 3 Cox, C. C. 85— Cresswell. 
 
 A principal in the second degree 
 cannot at the same time be treated 
 as a receiver. Reg. v. Perkins, 2 
 Den. C. C. 459 ; 16 Jur. 481 ; 21 L. 
 J., M. C. 152 ; 5 Cox, C. C. 554. 
 
 To incite a servant to rob his 
 master is a misdemeanor at common 
 law ; and an incitement to steal any 
 silk that may be in the servant's 
 care, without further defining the 
 particular silk to be stolen, is suffici- 
 ently certain to support a conviction. 
 Reg. V. Quail, 4 P. & F. 1076— 
 Willes. 
 
 A soliciting and inciting a person 
 to commit an ofience where no other 
 act is done except the soliciting and 
 inciting, is a misdemeanor only. lb. 
 
 2. Accessories. 
 Before the ^aci.]— By 24 & 25 
 Vict. c. 94, s. 1, "whosoever shall 
 " become an accessory before the 
 " fact to any felony, whether the 
 " same be a felony at common law, 
 " or by virtue of any act passed or to 
 
 " be passed, may be indicted, tried, 
 " convicted and punished in all re- 
 " spects as if he were a principal 
 "felon." (^Former provision,!^ & 
 12 Vict. c. 46, s. 1.) 
 
 By s. 2, "whosoever shall coun- 
 " sel, procure or command any other 
 "person to commit any felony, 
 " whether the same be a felony at 
 " common law or by virtue of any 
 " act passed or to be passed, shall 
 " be guilty of felony, and may be 
 "indicted and convicted either as 
 " an accessory before the fact to the 
 " principal felony, together with the 
 "principal felon, or after the con- 
 "viction of the principal felon, or 
 " may be indicted and convicted of 
 "a substantive felony whether the 
 "principal felon shall or shall not 
 " have been previously convicted, 
 " or shall or shall not be amenable 
 "to justice, and may thereupon be 
 "punished in the same manner as 
 " any accessory before the fact to 
 "the same felony, if convicted as 
 "an accessory, may be punished." 
 [Former provision, 1 Geo. 4, c. 64, 
 s. 9.) 
 
 A person is not to be convicted 
 of larceny if doubtful, whether an 
 accessory before or after the fact. 
 Reg. V. Munday, 2 P. & F. 170— 
 Byles. 
 
 A servant let a person into his 
 master's house on a Saturday after- 
 noon, and concealed him there all 
 night in order that he might rob the 
 house ; and on the Sunday morning 
 left the premises in pursuance of the 
 previous arrangement. The man, 
 in the servant's absence, broke into 
 the bed-room of the master, and 
 stole the contents of the cash-box : 
 — Held, that the man who took the 
 property from the cash-box was 
 rightly charged as a thief, and the 
 servant who let him into the house 
 as an accessory before the fact. 
 Reg. V. TuchweU, Car. & M. 215 — 
 Coleridge. 
 
 If a charge against an accessory 
 is, that the principal felony was 
 committed by persons unknown, it 
 
 Digitized by Microsoft® 
 
ACCESSORIES. 
 
 is no objection that the same grand 
 jury has found a bill imputing the 
 principal felony to J. S. Hex v. 
 Bush, R. & R. C. C. 872. 
 
 It is not essential that there should 
 have been any direct communica- 
 tion between an accessory before 
 the fact and the principal felon. It 
 is enough if the accessory directs an 
 intermediate agent to procure an- 
 other to commit a felony ; and it 
 will be sufficient even if the acces- 
 sory does not name the person to 
 be procured, but merely directs the 
 agent to emploj' some person. Hex 
 V. Cooper, 5 C. & P. 535— Parke. 
 
 The prisoner had procured certain 
 drugs and gave them to his wife, 
 with intent -that she should take 
 them in order to procure abortion. 
 She took them in his absence and 
 died from their effects. On an indict- 
 ment against him for manslaught- 
 er, it was objected that he was only 
 an accessory before the fact, and 
 that in law there cannot be an acces- 
 sory before the fact to manslaught- 
 er : — Held, that he was properly 
 found guilty of manslaughter. Heff. 
 v. Gaylor, 7 Cox, C. C. 253 ; Dears. 
 & B. C. C. 288. 
 
 After <Ae/ac<.]— By 24 & 25 Vict. 
 c. 94, s. 3, "whosoever shall become 
 " an accessory after the fact to any 
 "felony, whether the same be a 
 " felony at common law or by vir- 
 "tue of any act passed or to be 
 " passed, may be indicted and con- 
 "vioted either as an accessory after 
 "the fact to the principal felony, 
 " together with the princi]3al felon, 
 " or after the conviction of the prin- 
 " cipal felon, or may be indicted and 
 " convicted of a substantive felony, 
 "whether the principal felon shall 
 "or shall not have been previously 
 " convicted, or shall or shall not be 
 "amenable to justice, and may 
 " thereupon be punished in Uke man- 
 " ner as any accessory after the fact 
 "to the same felony, if convicted 
 " as an accessory, may be punish- 
 "ed." (Former 'provision, 11 & 12 
 Vict. c. 46, s. 2.) 
 
 Digitized by Microsoft® 
 
 By s. 4, "every accessory after 
 " the fact to any felony (except when 
 "it is otherwise specially enacted), 
 "whether the same be a felony at 
 " common law or by virtue of any 
 "act passed or to be passed, shall 
 " be liable, at the discretion of the 
 " covu-t, to be imprisoned in the com- 
 " mon gaol or house of correction 
 "for any term not exceeding two 
 " years, with or without hard labour, 
 " and it shall be lawful for the court, 
 " if it shall think fit, to require the 
 " offender to enter into his own re- 
 " cognizances and to find sfl.reties, 
 "both or either, for keeping the 
 " peace, in addition to such punish- 
 " ment ; provided that no person 
 "shall be imprisoned under this 
 "clause, for not finding sureties, 
 "for any period exceeding one 
 " year." 
 
 H. & S. broke open a warehouse, 
 and stole thereout thirteen firkins 
 of butter, which they carried along 
 the street thirty yards : they then 
 fetched the prisoner, who was ap- 
 prised of the robbery, and he assisted 
 in carrying away the property ; he 
 was indicted for theft : — Held, that 
 he was only an accessory, and not 
 a principal. Rex v. King, R. & R. 
 C. C. 332. 
 
 Where three persons agreed to 
 utter a forged note, and one uttered 
 it at Gosport, and the other two, by 
 previous concert, waited at Ports- 
 mouth, they were held to be acces- 
 sories. Mex V. Soares, 2 East, P. 
 C. 974 ; R. & R. C. C. 25. 
 
 Although a statute which creates 
 a new felony will attach to that 
 felony all the common-law incidents 
 to felony, so that accessories thereto 
 will be included, yet it will go no 
 further. Hex v. Sadi, 1 Leach, C. 
 C. 468 ; 2 East, P. C. 748.- 
 
 An accessory after the fact to a 
 felony cannot be convicted upon an 
 indictment charging the commission 
 of the felony only : he should be 
 indicted as an accessory after the 
 fact. Meg. v. Fallon, 9 Cox, C. C. 
 242 ; L. & 0. 217 ; 32 L. J., M. C. 
 
28 
 
 PRrNTCIPAXS, ACCESSORIES, ETC. 
 
 66 ; 8 Jur., N. S. 1217 ; 11 W. R. 
 74; 7 L. T., K S. 471. 
 
 A. was indicted for the \nlful 
 murder of B., and C. was indicted 
 for receiving, harbouring, and assist- 
 ing A., well knowing that he had 
 committed the felony and murder 
 aforesaid : — Held, that if the oifence 
 of A. was reduced to manslaughter, 
 C. might, notwithstanding, be found 
 guilty as accessory after the fact. 
 ^ex V. Greenacre, 8 C. & P. 35 — 
 Tindal, Coleridge, Coltman, and Re- 
 corder Law. 
 
 "Where a person is charged as ac- 
 cessory after the fact to a murder, 
 the question for the jury is, whether 
 such person, knowing the oifence 
 had been committed, was either as- 
 sisting the murderer to conceal the 
 death, or in any way enabling him 
 to evade the pursuit of justice. Tb. 
 
 To substantiate the charge of har- 
 bouring a felon, it must be shewn 
 that the party charged did some act 
 to assist the felon personally. Heg. 
 V. Chappie, 9 C. & P. 355— Re- 
 corder Law. 
 
 A prisoner who employed another 
 person to harbour the principal felons 
 may be convicted as accessory after 
 the fact, though he himself did no 
 act of relieving, and the prisoner 
 may be foimd guilty on the uncor- 
 roborated testimony of the person 
 who actually harboured, liex v. 
 Jarvis, 2 M. & Rob. 40— Gur- 
 ney. 
 
 A., a lad who was ~a clerk in a 
 banking house, robbed his employ- 
 ers ; after doing so, he went to the 
 lodgings of B., who was much older 
 than himself, and who had relations 
 in America. A. stayed twenty min- 
 utes at B.'s lodgings ; and after that, 
 on the same night, A. and B. started 
 together by the coach, and went 
 from Reading to Liverpool, intend- 
 ing to embark for America : — ^Held, 
 that B. might be convicted as an 
 accessory after the fact, in harbour- 
 ing, receiving, and maintaining A., 
 the principal felon. Hex v. £ee, 6 
 C. & P. 636— Williams. 
 
 3. Abettors. 
 
 In Felonies.] — If A. is charged 
 with the offence of inflicting an in- 
 jury dangerous to life, with intent 
 to murder, and B. is charged with 
 aiding and abetting him, it is essen- 
 tial to make out the charge as 
 against B., that B. should have 
 been aware of A.'s intention to 
 commit murder. Beg. v. Oruse, 8 
 C. & P. 541— Patteson. 
 
 Persons present, aiding and abet- 
 ting, are principals in the second de- 
 gree, and are %vithin the Riot Act. 
 Hex V. Hoyce, 4 Buit. 2073. 
 
 In Misdemeanors.] — By 24 & 25 
 Vict. c. 94, s. 8, " whosoever shall 
 " aid, abet, counsel, or procure the 
 " commission of any misdemeanor, 
 " whether the same be a misde- 
 " meanor at common law or by 
 " virtue of any act passed or to be 
 " passed, shall be liable to be tried, 
 " indicted, and punished as a princi- 
 " pal olfender." {Former provision, 
 7 & 8 Geo. 4, c. 30, s. 26.) 
 
 4. Trial. 
 
 By 24 & 25 Vict. c. 94, s. 5, " if 
 " any principal offender shall be in 
 '' anywise convicted of any felony, it 
 " shall be lawful to proceed against 
 " any accessory, either before or af- 
 " ter the fact, in the same manner 
 " as if such principal felon had been 
 " attainted thereof, notwithstanding 
 " such principal felon shall die, or 
 "be pardoned, or otherwise deliv- 
 " ered before attainder ; and every 
 " such accessory shall upon convic- 
 " tion suffer the same punishment 
 " as he would have suffered if the 
 " principal had been attainted." 
 {Former provision, 7 Geo. 4, c. 64, 
 s. 11.) 
 
 By s. 6, " any number of acces- 
 " series at different times to any fel- 
 " ony, and any nmnber of receivers 
 " at different times of property stol- 
 " en at one time, may be charged 
 " with substantive felonies in the 
 " same indictment, and may be tried 
 " together, notwithstanding the prin- 
 
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INDICTMENT. 
 
 29 
 
 " cipal felon shall not be included 
 " in the same indictment, or shall 
 " not be in custody or amenable to 
 "justice." {Former provision, 14 
 & 15 Vict. c. 100, s. 15.) 
 
 By s. 7, " where any felony shall 
 " have been wholly committed with- 
 " in England or Ireland, the offence 
 " of any person who shall be an ac- 
 " cessory either before or after the 
 " fact to any such felony may be 
 " dealt with, inquired of, tried, de- 
 " termined, and punished by any 
 " court which shall have jurisdic- 
 " tion to try the principal felony, or 
 " any felonies committed in any 
 " county or place in which the act 
 " by reason whereof such person 
 " shall have become such accessory 
 " shall have been committed ; and 
 " in every other case the offence of 
 " any person who shall be an acces- 
 " sory either before or after the fact 
 " to any felony may be dealt with, 
 " inquired of, tried, determined, and 
 " punished by any court which shall 
 " have jurisdiction to try the prin- 
 " cipal felony, or any felonies com- 
 " mitted in any county or place in 
 " which such person shall be appre- 
 " hended or in custody, whether the 
 " principal felony shall have been 
 " committed on the sea or on the 
 " land, or begun on the sea and 
 " completed on the land, or begun 
 " on the land and completed on the 
 " sea, and whether within her Maj- 
 " esty's dominions or without, or 
 " partly within her Majesty's do- 
 " minions and partly without ; pro- 
 " vided that no person who shall be 
 " once duly tried either as an acces- 
 " sory before or after the fact, or 
 " for a substantive felony, under 
 " the provisions hereinbefore con- 
 " tained, shall be liable to be after- 
 " wards prosecuted for the same of- 
 " fence." {Former provision, 7 Geo. 
 4,-c. 64, ss. 9, 10, 11 & 12 Vict. c. 
 46, s. 2.) 
 
 Where a principal and an acces- 
 sory are indicted together, they will 
 not be allowed to sever in their chal- 
 lenges so as to be tried sejDarately, 
 
 Digitized by Microsoft® 
 
 Reg. v. Fisher, 3 Cox, C. C. 68— 
 Piatt. 
 
 An accessory after the fact .in- 
 dicted in the ordinary way with the 
 principal felon, may, since 11 & 12 
 Vict. c. 46, s. 2, be tried before the 
 principal. Reg. v. Hansill, 3 Cox, 
 C. C. 597. 
 
 Jurisdiction of Admiralty. "l — By 
 s. 9, " where any person shall, with- 
 " in the jurisdiction of the admiralty 
 " of England or Ireland, become an 
 " accessory to any felony, whether 
 " the same be a felony at common 
 " law or by virtue of any act passed 
 " or to be passed, and whether such 
 " felony shall be committed within 
 " that jurisdiction or elsewhere, or 
 " shall be begun within that juris- 
 " diction and completed elsewhere, 
 " or shall be begun elsewhere and 
 " completed within that jurisdic- 
 " tion, the offence of such person 
 " shall be felony; and in any indict- 
 " ment for any such offence the ven- 
 " ue in the margin shall be the same 
 " as if the offence had been commit- 
 " ted in the county or place in 
 " which such person shall be indict- 
 " ed, and his offence shall be averred 
 " to have been committed ' on the 
 " high seas;' provided that nothing 
 " herein contained shall alter or aP 
 " feet any of the laws relating to 
 " the government of her Majesty's 
 " land or naval forces." 
 
 5. Indivtment. 
 
 A coimt charging a person with 
 being accessory before the fact, may 
 be joined with a count charging him 
 with being accessory after the fact 
 to the same felony, and the prose- 
 cutor cannot be required to elect 
 upon which he will proceed, as the 
 party may be found guilty upon 
 both. Rex v. Blachson, 8 C. & P. 
 43 — Park and Patteson. 
 
 An indictment in two counts 
 charged A. and B. jointly with 
 stealing. A third count charged 
 A. alone with receiving the stolen 
 goods. At the trial no evidence 
 
30 
 
 PRINCIPALS, ACCESSORIES, ETC. 
 
 was offered against B., and he was 
 acquitted, in order that he might 
 be called as a witness against A. 
 A. was an accessory before the fact 
 to the stealing by B., and he after- 
 wards received the stolen goods. 
 The jury returned a verdict of guilty 
 against A., which was entered upon 
 all the counts : — ^Held, that he was 
 not entitled to an acquittal upon the 
 first two counts by reason of the 
 principal, B., having been acquitted, 
 the H & 12 Vict. c. 46, s. 1, hav- 
 ing made the crime of being an ac- 
 cessory before the fact a substantive 
 felony. Reg. v. Hughes, Bell, C. C. 
 242; 8 Cox, C. C. 278; 6 Jur., K 
 S. 177 ; 29 L. J., M. C. 71 ; 8 W. R. 
 195; 1 L. T., N. S. 450. 
 
 Held also, that there was no in- 
 consistency in the verdict found by 
 the jury, and entered upon all the 
 counts, and therefore the conviction 
 could be supported. Ih. 
 
 In indicting a person for felony, 
 since 11 & 12 Vict. c. 46, it is im- 
 material whether he is a principal 
 in the first or the second degree, or 
 an accessory before the fact, as in 
 either case he is indictable as a 
 principal. Meg. v. Manning, 2 C. 
 & K. 903. 
 
 If two persons are indicted for 
 murder, the one as a principal in 
 the first degree, and the other as 
 being present, aiding and assisting 
 to commit it, the jury may find the 
 principal in the first degree not 
 guilty, and convict the principal in 
 the second degree. Rex v. Taylor, 
 1 Leach, C. C. 360; S. C, nom. 
 Shawns case, 1 East, P. C. 351. 
 
 Three persons were charged with 
 a larceny, and two others as acces- 
 sories, in separately receiving por- 
 tions of the stolen goods. The in- 
 dictment also contained two other 
 counts, one of them charging each 
 of the receivers separately with a 
 substantive felony, in separately re- 
 ceiving a portion of the stolen goods. 
 The principals were acquitted : — 
 Held, that the receivers might be 
 convicted on the two last counts of 
 
 the indictment. Reg. v. Pulham, 9 
 C. & P. 280— Gurney. 
 
 An indictment stated that a cer- 
 tain evil-disposed person stole cer- 
 tain goods ; that L. C. incited him 
 to do so; that E. C. did the same; 
 that E. M. received a portion of the 
 property, knowing it to have been 
 stolen; it also charged A. and 
 the before mentioned E. C. as re- 
 ceivers. All these persons having 
 been found guilty, the conviction 
 was held good against all except 
 L. C, who was merely charged as 
 accessory before the fact, and judg- 
 ment was given as to the charges of 
 receiving only. Re<j. v. Caspar, 9 
 C. &P. 289: 2M. C. C. 101. 
 
 A count charged A. with the 
 murder of B., and also C. and D. 
 with being present, aiding and abet- 
 ting A. in the commission of the 
 murder. A was an insane person : 
 — Held, therefore, that C. and D. 
 could not be convicted on this ■ 
 count. Reg. Y. Tyler, 8 C. & P. 
 615 — Denman. 
 
 6. Evidence. 
 
 A person indicted as an accessory 
 before the fact, cannot be convicted 
 of that charge upon evidence prov- 
 ing him to have been present, aid- 
 ing and abetting. Rex v. Gordon, 
 1 Leach, C. C. 515 ; 1 East, P. C. 
 352. 
 
 An indictment against an acces- 
 sory to a felony, committed by a 
 person unknown, cannot be sup- 
 ported, if it appears that the princi- 
 pal felon acknowledged his guilt be- 
 fore the grand jury. Rex Y.Walker, 
 3 Camp. 264— Le Blanc. 
 
 An accessory may controvert the 
 guilt of the principal, notwithstand- 
 ing the record of his conviction. Rex 
 V. Smith, 1 Leach, C. C. 288. 
 
 An averment of the conviction of 
 the principal is supported by the 
 production of the record, however 
 erroneous the judgment may be. 
 
 Rex V. Baldwin, 3 Camp, 265 
 
 Thompson. 
 
 On an indictment against an ac- 
 
 Digitized by Microsoft® 
 
WOMEN. 
 
 31 
 
 cessory, a confession by the princi- 
 pal is not admissible in evidence to 
 prove the guilt of the. principal. Rex 
 V. Turner, 1 IVI. C. C. 347. 
 
 It must be proved aliunde, espe- 
 cially if the principal is alive. Ih. 
 
 A. and B. were indicted for lar- 
 eny as principals; A. had been sent 
 by his master to deliver goods to C. 
 He only delivered part, and the rest 
 was stolen, and foimd in the posses- 
 sion of B. : — Held, that it was a 
 question for the jury whether B. 
 was present at the time when A. 
 separated the stolen portion from 
 the bulk ; for that if he was, both 
 were rightly charged as principals. 
 Rex V. Butteris, 6 C. & P. 147— 
 Gurney. 
 
 HI. Abductio^t of Women and 
 Childeen. 
 
 1. Women, 31. 
 
 2. Children, 34. 
 
 3. Indictment, 35. 
 
 4. Evidence, 35. 
 
 1. Women. 
 
 By 24 & 25 Vict. c. 100, s. 53, 
 " where any woman of any age shall 
 " have any interest, whether legal or 
 " equitable, present or future, abso- 
 " lute, conditional or contingent, in 
 " any real or personal estate, or 
 " shall be a presumptive heiress or 
 " co-heiress, or presumptive next of 
 " kin, or one of the presumptive next 
 " of kin to any one having such in- 
 " terest, whosoever shall, from mo- 
 " tives of lacre, |;ake away or detain 
 " such woman against her will, with 
 " intent to marry or carnally know 
 " her, or to cause her to be married 
 " or carnally known by any other 
 "person; 
 
 " And whosoever shall fraudu- 
 " lently allure, take away or detain 
 " such woman, being under the age 
 " of twenty-one years, out of the 
 "possession and against the will 
 
 " of her father or mother, or of 
 " any other person having the law- 
 " ful care or charge of her, with in- 
 " tent to marry or carnally know 
 " her, or to cause her to be married 
 " or carnally known by any other 
 " person, shall be guilty of a felony, 
 " and, being convicted thereof, shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal serv- 
 " itude for any term not exceeding 
 "fourteen years and not less than 
 "five years (27 & 28 Vict. c. 47), 
 "or to be imprisoned for any term 
 " not exceeding two years, with or 
 " without hard labour ; 
 
 " And whosoever shall be con- 
 " victed of any ofience against this 
 " section shall be incapable of tak- 
 " ing any estate or interest, legal or 
 " equitable, in any real or personal 
 " property of such woman, or in 
 " which she shall have any such in- 
 " terest, or which shall come to her 
 " as such heiress, co-heiress or next 
 "of kin as aforesaid; and if any 
 " such marriage as aforesaid shall 
 " have taken place, such property 
 " shall, upon such conviction, be set- 
 " tied in such manner as the Court 
 " of Chancery in England or Ireland 
 " shall upon any information at the 
 " suit of the Attorney-General, ap- 
 " point." {Previous enactment, 9 
 Geo. 4, c. 31, s. 19.) 
 
 By s. 54, " whosoever shall by 
 " force take away or detain against 
 " her will any woman, of any age, 
 " with intent to marry or carnally 
 " know her, or to cause her to be 
 " married or carnally known by any 
 " other person, shall be guilty of a 
 " felony, and, being convicted there- 
 " of, shall be liable, at the discretion 
 " of the court, to be kepi in penal 
 " sei-vitude for any term not exceed- 
 "ing fourteen years, and not less 
 " than five years (27 & 28 Vict. c. 
 "47), or to be imprisoned for any 
 " term not exceeding two years, 
 "with or without hard labour." 
 (Former provision, 10 Geo. 4, c. 34 
 YlrisK], s. 22, extended to England.) 
 
 By s. 55, "whosoever shall un- 
 
 Digitized by Microsoft® 
 
32 
 
 ABDUCTIOK OF WOMEN. 
 
 " lawfully take or cause to be taken 
 " any uniTuirried girl, being under 
 " the age of sixteen years, out of the 
 " possession and against the -will of 
 "her father or mother, or of any 
 " other person having the lawful 
 " care or charge of her, shall be 
 " guilty of a misdemeanor, and, be- 
 " ing convicted thereof, shall be li- 
 " able, at the discretion of the court, 
 " to be imprisoned for any term not 
 " exceeding two years, mth or with- 
 " out hard labour." [Similar to 9 
 Geo. 4, c. 31, s. 20.) 
 
 By 9 Geo. 4, c. 31, the 3 Edw. 1, 
 c. 13 ; 3 Hen. 7, c. 2 ; 39 EHz. c. 9; 
 4 & 5 Ph. & M. c. 8 ; 1 Geo. 4, c. 
 115, and so much of 6 Ric. 2, st. 1, 
 c. 6, as related to this subject, were 
 repealed. 
 
 By 24 & 25 Vict. c. 95, the 9 Geo. 
 4, 0. 31, ss. 19 and 20, and 7 Will. 4 
 & 1 Vict. c. 85, s. 11, are repealed. 
 
 Semble, that where a man by false 
 and fraudulent representations in- 
 duced the parents of a girl between 
 ten and eleven years of age to al- 
 low him to take her away, such tak- 
 ing away of the girl was an abduc- 
 tion within 9 Geo. 4, c. 31, s. 20. 
 Reg. V. Hopkins, Car. & M. 254 — 
 Gurney. 
 
 A., a girl under sixteen, who was 
 in service, was, as she was return- 
 ing from an errand, asked by B. if 
 she would go to London, as B's 
 mother wanted a servant, and would 
 give her 5^. wages. A. and B. went 
 away together to Bilston, where 
 both were found, and B. ajDprehend- 
 ed : — Held, that this was not such a 
 taking, or causing to be taken, of 
 A., as was sufficient to constitute 
 the offence of abduction under 9 
 Geo. 4, c. 31, s. 20. Reg. v. Mead- 
 ows, 1 C. & K. 399 ; Dears. C. C. 
 161, n.— Parke. 
 
 A girl under sixteen having by 
 persuasion been ii;iduced by the pris- 
 oner to leave her father's house, and 
 go away -with him without the con- 
 sent of the father, left her home alone 
 by a preconcerted arrangement be- 
 tween them, and went to a place 
 
 appointed, where she was met by 
 the prisoner, and then they went 
 away together some distance, with- 
 out the intention of returning : — 
 Held, first, that there was a taking 
 of the girl out of the father's pos- 
 session, within 9 Geo. 4, c. 31, s. 20, 
 by the prisoner when he Inet the 
 girl, and went away with her at the 
 appointed place, as up to that mo- 
 ment she had not absolutely re- 
 nounced her father's protection. 
 JReg. V. ManUetow or Manktelow, 
 Dears. C. C. 159 ; 17 Jur. 352 ; 22 
 L. J., M. C. 115 ; 6 Cox, C. C. 
 133. 
 
 Held, secondly, such taking need 
 not be by force, actual or construct- 
 ive, and it is immaterial whether 
 the girl consents or not. Ih. 
 
 The case oiReg. v. Meadows (1 C. 
 & K. 399) explained. lb. 
 
 A. went in the night to the house 
 of B., and placed a ladder against a 
 window^ and held it for J., the 
 daughter of B., to descend, which 
 she did, and then eloped with A. 
 J. was a girl under sixteen, viz : fif- 
 teen years old : — Held, that this was 
 a taking of J. out of the possession 
 of her father within 9 Geo. 4, c. 31, 
 s. 20, although J. had herself pro- 
 posed to A. to bring the ladder, and 
 to elope with him. Meg. v. Hobins, 
 1. C. & K. 456— Tindal. 
 
 Held, also, that it was no defence 
 for A. that he did not know that J. 
 was under sixteen, or that, from 
 her appearance, he might have 
 thought she was a greater age. lb. 
 
 On an indictment for abduc- 
 tion on 9 Geo. 4, c. 31, s. 19, the 
 jury ought not to convict the pris- 
 oner, unless satisfied that he com- 
 mitted the ofieuce from motives of 
 lucre ; but evidence of expressions 
 used by him respecting the property 
 of the lady, such as his stating that 
 he had seen the will of one of her 
 relatives (naming him), and that 
 she would have 220?. a year, are 
 iinportant for the consideration of 
 thegury, in coming to a conclusion 
 whether he was actuated by motives 
 
 Digitized by Microsoft® 
 
WOMEN". 
 
 33 
 
 of lucre or not. Reg. v. Barratt, 9 
 C. & P. 387— Parke. 
 
 It was no answer to an indict- 
 ment under 9 Geo. 4, o. 31, s. 20, 
 for taldng away a girl under the age 
 of sixteen years, to- show that the 
 girl alleged to be abducted went 
 voluntarily from her home in conse- 
 quence of the persuasion of th,e pris- 
 oner, to a place at some distance, 
 where she met the prisoner, and 
 whence she went away with him 
 without any reluctance. Reg. v. 
 Kipps, 4 Cox, C. C. 167. 
 
 On an indictment for taking an 
 unmarried girl under the age of six- 
 teen from the possession of her 
 father : — Held, that the statute was 
 satisfied, though the man and the 
 girl quitted the house together in 
 consequence of a proposition which 
 emanated from the girl herself to 
 that effect, and a statement by her 
 to the man that she intended to leave 
 her father's house. Reg. v. JBisweU, 
 2 Cox, C. C. 279— Alderson. 
 
 ■La order to constitute an offence 
 within 9 Geo. 4, c. 31, s. 20, it is suf- 
 ficient, if, by moral force, a wilhng- 
 • ness on the part of the girl to go 
 away with the prisoner is created ; 
 but if her going away with him is en- 
 tirely voluntary, no offence is com- 
 mitted. Reg. V. Handhy, 1 F. & F. 
 648— Wightman. 
 
 A gu-1, under sixteen, who was 
 living in her father's house, was in- 
 duced by the prisoner to go to a 
 chapel and to be married to him. 
 She was only away from home for 
 an hour or two, and after her return 
 continued to live with her father as 
 before, he being ignorant of what 
 had taken place. The marriage was 
 never consvimmated : — Held, that 
 there was suiScient evidence of her 
 having been taken out of her father's 
 possession to satisfy 9 Geo. 4, c. 31, 
 s. 20. Reg. v. BaiUie, 8 Cox, C. C. 
 238 — Chambers, C. S., and Gumey, 
 Recorder. 
 
 When a girl, under sixteen, has 
 
 been found in the streets by herself 
 
 and seduced away, that is not a tak- 
 
 FisH. Dig.— 3 Digitized by ' 
 
 ing out of the possession of the 
 father, even though he i^ living in 
 the place and she lives with him. 
 Reg. V. Green, 3 F. & F. 274— 
 Martin. 
 
 Where a person was indicted for 
 the abduction of a girl under six- 
 teen, and it did not appear that he 
 had any improper motive, the jury 
 was directed that if they thought 
 he merely wished to have the child 
 to live with him, and honestly be- 
 lieved that he had a right to the 
 custody of the child, although he 
 had no such right, they ought to 
 acquit him. Reg. v. Tinkler, 1 F. 
 & F. 513— Cockburn. 
 
 A. was convicted for taking an 
 unmarried girl, under sixteen, out 
 of the possession of her father, and 
 against his will. It was proved 
 that A. (who had previously stayed 
 out with the girl for a night), hav- 
 ing met her by arrangement, stayed 
 with her away from her father's 
 house for three days, sleeping with 
 her at night ; that he took her away 
 without her father's consent, and 
 against his will, in order to gratify 
 his passions, and then allow her to 
 return home, but not with a view 
 of keeping her away from her home 
 permanently: — Held, that the evi- 
 dence j ustified the conviction . Reg. 
 V. Timmins, Bell, C. C. 276 ; 8 Cox, 
 C. C. 401; 30 L. J., M. C. 45; 6 
 Jur., N". S. 1309 ; 9 W. R. 36 ; 3 
 L. T., N. S. 337. 
 
 It is not necessary to shew a tres- 
 pass, or anything of that nature, in 
 the taking, other than the act of 
 taking. Reg. v. Frazier, 8 Cox, C. 
 C. 446— Pollock. 
 
 A. was indicted for fraudulently 
 alluring C. out of the possession of 
 her mother and stepfather, the lat- 
 ter having the lawful care of her ; 
 and B. with being an accessory be- 
 fore the fact. C. was sent by her 
 mother to live with her grand- 
 mother. Instead of going there, she 
 went to B.'s house, and did not re- 
 turn home when desired to do so by 
 her mother. After remaining with 
 Microsoft® 
 
34 ABDUCTION OF WOMEN, ETC. 
 
 B. a month, she left with A., her pa- 
 ternal' urible, and was married to 
 him without her mother's knowl- 
 edge: — Held, that the averments 
 that the girl was in the possession 
 and under the care of her stepfather 
 might be rejected as surplusage. 
 Beg. v. BurreU, L. & C. 354; 12 
 W. R. 149; 9 L. T., N. S. 426; 
 33 L. J.,M. C. 54; 9 Cox, C. C. 
 368. 
 
 Held, also, upon objection, that 
 there was no evidence that the al- 
 luring was fraudulent, or that the 
 girl was taken put of her mother's 
 possession, that the facts did not 
 support the indictment. Ih. 
 
 If a man, by previous promises 
 to a girl under sixteen, as to what 
 he will do if she will leave her par- 
 ents' house and go to live with him, 
 induces her at length to dp so, and 
 then receives and harbours her se- 
 cretly, he is liable to be convicted 
 for taking her out of the possession 
 of her parents, even although he does 
 not meet her by any previous ar- 
 rangement and is not otherwise aet- 
 iially a party to her act in leaving. 
 Beg. V. Bobl, 4 F. & F. 59— Pol- 
 lock. 
 
 On an indictment for unlawfully 
 taking away a girl against the will 
 of her parents, if they have encour- 
 aged her in a lax course of life, the 
 ease does not come within 9 Geo.' 4, 
 0. 31, s. 90. Reg. v. Primelt, 1 F. 
 & F. 50— Cockburn. 
 
 A man dealing with an unmarried 
 girl does so at his peril ; and if ^he 
 turns out to be under sixteen, is 
 Hable to be indicted for unlawfully 
 taking her away. Beg. v. OUifier, 
 10 Cox, C. C. 402— Bramwell. 
 
 A man is not bound to return 
 to her father's custody a girl who, 
 without any inducement on his 
 part, has left her home, and has 
 come to him ; but if, at any time, 
 he has attempted to induce her to 
 leave home without her parents' 
 consent, and she afterwards does so, 
 he is guilty of the abduction of the 
 girl, even though he disapproves of 
 
 the act at the particular time at 
 which she gives effect to his previous 
 persuasions. Ih. 
 
 The prisoner met a girl under six- 
 teen years of age in the street and in- 
 duced her to go with him to a place 
 at some distance, where he seduced 
 her, and detained her for some 
 hours. He then took her back to 
 the street where he had met her, 
 and she returned home to her 
 father's : — Held, in the absence of 
 any evidence that the prisoner knew 
 or had reason for knowing, or that 
 he believed that the girl was under 
 the care of her father at the time, 
 that the conviction under 24 & 25 
 Vict. c. 100, s. 55, could not be sus- 
 tained. Beg. V. Hihbert, 19, L. T., 
 N. S. 799 ; 17 W. R. 384 ; 38 L. J., 
 M. C. 61 ; 1 L. R., C. C. 184 ; 11 
 Cox, C. C. 246. 
 
 2. Ohildren. 
 
 By 24 & 25 Vict. c. 100, s. 
 56, "whosoever shall unlawfully, 
 "either by force or fraud, lead or 
 take away, or decoy or entice 
 away or detain, any child under 
 the age of fourteen years, with in- 
 tent to deprive any parent, guar- 
 dian or other person having the 
 lawful care or charge of such child 
 of the possession of such child, or 
 with intent to steal any article up- 
 on or about the person of such 
 child, to whomsoever such article 
 may belong, and whosoever shall, 
 with any such intent, receive or 
 harbour any such child, knowing 
 the same to have been, by force 
 or fraud, led, taken, decoyed, en- 
 ticed away or detained, as in this 
 section before mentioned, shall be 
 guilty of felony, and, being con- 
 victed thereof, shall be liable, at 
 the discretion of the court, to be 
 kept in penal servitude for any 
 term not exceeding seven years, 
 and not less than five years (27 & 
 28 Vict. b. 47), or to be imprison- 
 ed for any term not exceeding 
 two years, with or without hard 
 labor, and, if a male under the 
 
 Digitized by Microsoft® 
 
CHILDRElSr— INDICTMENT— EVIDEKCE. 
 
 35 
 
 " age of sixteen years, with or with- 
 ■■' out whipping ; provided that no 
 "person who shall have claimed 
 " any right to the possession of such 
 " child, or shall be the mother or 
 " shall have claimed to be the fa- 
 " ther of an illegitimate child, shall 
 " be liable to be prosecuted by vir- 
 " tue hereof on account of the get- 
 " ting possession of such child, or 
 " taldng such child out of the pos- 
 " session of any person having the 
 " lawful charge thereof." {Form- 
 er provision, 9 Geo. 4, c. 31, s. 21, 
 repealed i^ 24 & 25 Vict. c. 95.) 
 
 3. Indictment. 
 
 If, on an indictment for abduc- 
 tion on 9 Geo. 4, c. 31, s. 19, the jury 
 was not satisfied that the prisoner 
 was actuated by motives of lucre, 
 and they were satisfied that he used 
 force to the person of the lady in 
 taking her away, and that he took 
 her away against her consent, they 
 might convict him of an assault un- 
 der 7 "Will. 4 & 1 Vict. c. 85, s. 11. 
 JReg. V. Barratt, 9 C. & P. 387— 
 Parke. 
 
 4. Evidence. 
 
 The wife is a witness as well for 
 as against her husband, although 
 she has cohabited with him from 
 the day of the marriage. Rex v. 
 Perry, 1 Russ. C. & M. 949. 
 
 Where several defendants were 
 indicted for a misdemeanor in con- 
 spiring to carry away a young lady, 
 under the age of sixteen, from the 
 custody appointed by her father, 
 and to cause her to marry one of 
 the defendants ; and, in another, for 
 conspiring to take her away by 
 force, being an heiress, and to marry 
 her to one of the defendants : — Held, 
 that, assuming the young lady to be 
 at the time the lai^ul wife of one of 
 the defendants, she was a compe- 
 tent witness for the prosecution, al- 
 though there was no evidence to 
 support that part of the indictment 
 which charged force. Bex v. Wake- 
 Jidd, 2 Lewin, C. C. 279. 
 
 A prisoner was taken into custody 
 at the house of his brother on a 
 charge of abduction ; when he was 
 taken, a letter was found in a writ- 
 ing-desk in the room in which he 
 and his brother were. The letter 
 was directed to a person in the 
 neighborhood of the prisoner's late 
 residence. The poUce-officer was 
 going to open it, when the prisoner 
 told him it had nothing to do with 
 the business that he had come 
 about : — Held, that the letter was 
 receivable in evidence on the trial 
 of the prisoner for the abduction. 
 Meg. V. Barratt, 9 C. & P. 387— 
 Parke. ' 
 
 On a prosecution on 3 Hen. 7, c. 
 2, it was essential that there should 
 be a continuance of the force into 
 the county where the defilement 
 took place. Bex v. Gordon, 1 Russ. 
 C. & M. 943. 
 
 rV. Adulteration of Food ok 
 Deink. 
 
 1. SetlingUnwholesome Provisions, Si 
 
 2. Engrossing or Eegrating, 36. 
 
 1. Selling Unwholesome Provisions. 
 
 23 & 24 Vict! c. 84, "enacts 
 "penalties on persons selling arti- 
 " cles of food or drink, knowing the 
 " same to be injurious to health ; 
 " and see 11 & 12 Vict. c. 107, s. 3." 
 
 Victuallers, brewers and other 
 common dealers in victuals, who in 
 the course of their trade sell provis- 
 ions unfit for the food of man, are 
 criminally responsible under 51 
 Hen. 3, " Pillor' et Tumbrel' &c." 
 and of Edw. 1, "De Pistoribus et 
 Hasiatoribus et aliis Vitellariis," if 
 they do so knowingly, and proba- 
 bly if they even do not, and are lia- 
 ble civilly to the vendee without 
 any fraud on their part or warranty 
 of the soundness of the thing sold : 
 but a private person, not following 
 any of these trades, who sells an un- 
 wholesome article for food, is not 
 
 Digitized by Microsoft® 
 
36 
 
 ARSON" AND BURNING. 
 
 liable under such circumstances. 
 Burnhy v. RoUitt, 1-6 M. & W. 644; 
 11 Jiir. 827 ; 17 L. J., Exoh. 190. 
 
 A meat salesman can be indicted 
 at common law for knowingly send- 
 ing or exposing meat for sale in a 
 public market as fit for human food, 
 ■which, in fact, was not so. Reg. v. 
 Stevenson, 3 P. & F. 106— Willes. 
 
 So a carrier, for knowingly bring- 
 ing to market meat unfit for human 
 food. Reg. v. Jarvis, 3 F. & F. 
 108 — Gurney, Recorder. 
 
 But a person is not indictable for 
 sending to a meat salesman meat 
 he knows to be unfit for human 
 food, if he does not know and intend 
 that it is to be sold as human food. 
 Reg. V. Orawley, 3 F. & F. 109— 
 Willes. 
 
 Mixi^g alum with bread in sufch 
 manner as that crude lumps were 
 found in the bread, is indictable. 
 Rex V. Dixon, 3 M. & S. 11 ; 4 
 Camp. 12. 
 
 Indictment against a defendant, 
 who was employed to make bread 
 for the Military Asylum, which 
 charged that he delivered to J. H. 
 divers, to wit, 297 loaves, as and 
 for good household bread, for the 
 use and supply of the asylum and 
 the children belonging thereto, 
 whereas the loaves were not good 
 household bread, but contained di- 
 vers noxious and unwholesome ma- 
 terials not fit for the food of man, 
 is sufficiently certain, without shew- 
 ing what the noxious materials were, 
 or that the defendant intended to 
 injure the children's health. lb. 
 
 An indictment does not lie against 
 a miller for receiving good barley to 
 grind at his mill, and delivering a 
 mixture of oat and barley meal dif- 
 fering from the produce of the bar- 
 ley, and which is musty and un- 
 wholesome. Rex V. Jfaynes, i M. 
 & S. 214. 
 
 Indictment against a miller, charg- 
 ing in the same count that he receiv- 
 ed two separate parcels of barley, 
 each of four bushels, to be ground 
 at his mill, and that he delivered 
 
 three bushels 46 lbs of oat-meal and 
 barley-meal mixed, other and dif- 
 ferent than the produce of the four 
 bushels, is ill, for the uncertainty to 
 which of the four bushels it relates. 
 lb. 
 
 2. Engrossing or Regretting. 
 The common-law oifence of en- 
 grossing or regrating applied only 
 with respect to the necessaries of Hfe. 
 Pettamberdass v. Thackoorseydass, 5 
 Moo. Ind. App. 109 ; 7 Moore, P. 
 C. C. 239 ; 15 Jur. 257; and 7 & 8 
 Vict. c. 24, abolished the law of en- 
 grossing or regrating. 
 
 V. Aeson and Burning. 
 
 1. Staiutes, 36. 
 
 2. The Offence, 36. 
 
 3. Places of Divine Worship, 37. 
 
 4. Dwelling-houses with Persons there- 
 ■ in, 38. 
 
 5. What Houses or Buildings, 38. 
 
 6. Railway Stations and Buildings, 
 
 7. PMic Buildings, 40. [40. 
 
 8. Other Buildings, 40. 
 
 9. Property in Buildings, i\. 
 
 10. By Gunpowder and Explosive Sub- 
 
 stances, 41. 
 
 11. Crops, Stacks or Woods, 42. 
 
 12. CocU and other Mines, 43. 
 
 13. Parties Indictable, H. 
 
 14. Indictment, 44. 
 
 15. Evidence, 45. 
 
 1. Statutes. 
 The! &9, Geo. 4, c. 27, repealed 
 23 Hen. 8, c. 1, 43 EHz. c. 13, 22 & 
 23 Car. 2, c. 7, 9 Geo. 1, c. 22, {the 
 Black Act), 9 Geo. 3, c. 29, and 52 
 Geo. 3, c. 130; and 9 Geo. 4, c. 31, 
 repealed 43 Geo. 3, o. 58 ; and 24 & 
 25 Vict. c. 95, repealed 7 & 8 Geo. 
 4, c. 30, 7 Will. 4 & 1 Vict. c. 89 ; 
 7 & 8 Vict. c. 62, and 9 & 10 Viet, 
 c. 25. ■ 
 
 24 & 25 Vict. c. 97, consolidates 
 and amends the statute law of Eng- 
 land and Ireland in relation to this 
 offence. 
 
 , 2. The Offence. 
 
 By 24 & 25 Vict. c. 97, s. 58, 
 " every punishment and forfeiture 
 
 Digitized by Microsoft® 
 
PLACES OF DIVINE WORSHIP. 
 
 37 
 
 " by the act imposed on any person 
 " maliciously committing the offence 
 " of burning or setting fire, shall 
 " equally apply and be enforced, 
 " whether the offence shall be com- 
 " mitted from malice conceived 
 " against the owner of tl\e property 
 " in respect of which it shall be 
 " committed or otherwise." 
 
 By s. 59, "the provisions of the 
 " act apply to every person who, 
 " with intent to injure or defraud 
 " any other person, although the of- 
 " fender shall be in possession of the 
 " property against or in respect of 
 " which such act shall be done." 
 
 The feloniously burning of a 
 dwelling-house is arson at common 
 law ; but the burning of an out- 
 house is a statutable felony. Sex v. 
 Ifash, 2 East, P. C. 1021. 
 
 One entitled to dower only out of 
 a house, which was leased to an- 
 other, may commit arson by burn- 
 ing it. Hex V. Harris, 2 East, P. 
 C. 1023. 
 
 If a person sets fire to a stack, 
 the fire from which is likely to and 
 which does communicate to a barn, 
 which is thereby burnt, the person 
 is indictable for burning the barn. 
 Bex V. Cooper, 5 C. & P. 535— 
 Parke. 
 
 To constitute a setting on fire it 
 is not necessary that any flame 
 should be visible. Hex v. Stallion, 
 1 M. C. C. 398. 
 
 It was proved that the floor near 
 the hearth was scorched. It was 
 charred in a trifling way. It had 
 been at a red heat, but not in a 
 blaze : — Held, that this would be a- 
 sufiicient burning to support an in- 
 dictment for arson. Meff. v. Park- 
 er, 9 C. & P. 45— Parke and Bo- 
 sanquet. 
 
 One put by overseers of the poor 
 into a house to live there is merely 
 a servant, and his possession is theirs, 
 and therefore he may commit arson 
 by burning it. Hex v. Gowan, 2 
 East, P. C. 1027 ; 1 Leach, C. C. 
 246. 
 
 Burning a man's own house con- 
 tiguous to, others is a misdemeanor 
 at common law. Hex v. Prohert, 2 
 East, P. C. 1030 ; S. P. Hex v. 
 Isaac, 2 East, P. C. 1031. 
 
 A small faggot was set on fire on 
 the boarded floor of a room, and the 
 faggot was nearly consumed; the 
 boards of the floor were scorched 
 black, but not burnt, and no part 
 of the wood of the floor was con- 
 sumed : — Held, not a sufiicient 
 burning to support an indictment 
 for arson. Heff. v. HusseU, Car. & 
 M. 541— Cresswell. 
 
 Upon a trial for arson with intent 
 to defraud an insurance company, 
 evidence that the prisoner had made 
 claims on two other insurance com- 
 panies in respect of fires which had 
 occurred previously, and in succes- 
 sion, was admitted for the purpose 
 of showing that the fire which form- 
 ed the subject of the trial was the 
 result of design and not of accident. 
 Heg. V. Gray, 4 F. & P. 1102— 
 Willes. 
 
 An unfurnished structure intend- 
 ed to be used as a house, is not a 
 house within the meaning of the 24 
 & 25 Vict. c. 97, s. 2. Heg. v. Ed- 
 geU, 11 Cox, C. C. 132— Lush. 
 
 3. Places of tKvine Worship. 
 
 By 24 & 25 Vict. c. 97, s. 1, 
 " whosoever shall unlawfully and 
 " maliciously set fire to any church, 
 " chapel, meeting-house, or other 
 " place of divine worship, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for Ufe, or 
 " for any term not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour, and with or with- 
 " out solitary confinement, and, if a 
 " male under the age of sixteen 
 " years, with or without whipping." 
 [Former enactment, 7 Will. 4 & 1 
 Vict. c. 89, s. 3.) 
 
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38 
 
 ARSON" AND BURNING. 
 
 4. Dwelling-houses with Persons 
 therein. 
 
 By 24 & 45 Vict. c. 97, s. 2, 
 " whosoever shall unlawfully and 
 " maliciously set fire to any dwell- 
 " ing-house, any person being there- 
 " in, shall be guilty of felony, and, 
 " being convicted thereof, shall be 
 " liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for Ufe, or for anv tei-m not 
 " less than five years (27" & 28 Vict. 
 " c. 47) ; or to be imprisoned for 
 " any tei-m not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment, and, if a male under six- 
 " teen, with or without whipping." 
 {^Previous enactment, 7 Will. 4 & 1 
 Vict. c. 89, s. 3, and was a capital 
 offence h/ s. 2.) 
 
 A. was indicted on this statute 
 for the capital offence of setting 
 fire to B.'s dwelling-house, B. being 
 therein. A. had set fire to an out- 
 house, under the same roof as the 
 dwelling-house, and the fire com- 
 municated to the dwelling-house 
 and burnt it. At the time that A. 
 set fire to the outhouse, B. was in 
 the dwelUng-house, but had left it 
 before the fire reached the dwelling- 
 house : — ^Held, that the capital 
 charge could not be sustained, as 
 
 B. was not in the house at the time 
 it was on fire. Heg. v. Fletcher, 2 
 
 C. & K. 215— Patteson. 
 
 On an indictment on 7 Will. 4 & 
 1 Vict. c. 89, s. 2, for the capital of- 
 fence of setting fire to a dwelling- 
 house, some person being therein 
 (the indictment not charging any 
 intent to injure or defraud any per- 
 son), the prisoner could be convict- 
 ed of the transportable offence of 
 setting fire to the house, under sect. 
 3 ; as an allegation of an intent to 
 injure or defraud some person was 
 essential to an indictment under 
 that section. Heff. v. Paice, 1 C. & 
 K. 73 ; S. P. Beg. v. Fletcher, 2 C. 
 & K. 215. 
 
 The house set fire to must be a 
 dwelUng-house, and a common gaol 
 
 occupied by none but prisoners is not 
 a dwelling-house for this purpose. 
 Beg. v. Connor, 2 Cox, C. C. 65 — 
 Parke. 
 
 5. What Houses or Buildings. 
 
 By 24 & 25 Vict. c. 97, s. 3, 
 ' whosoever shall unlawfully and 
 ' maliciously set fire to any house, 
 ' stable, coachhouse, outhouse, 
 ' warehouse, ofiice, shop, mill, malt- 
 ' house, hop-oast, bam, storehouse, 
 ' granary, hovel, shed, or fold, or 
 ' to any farm building, or to any 
 ' building or erection used in farm- 
 ' ing land, or in carrying on any 
 ' trade or manufacture, or any 
 ' branph thereof, whether the same 
 ' shall then be in the possession of 
 ' the offender or in the possession of 
 ' any other person, with intent 
 ' thereby to injure or defraud any 
 ' person, shall be guilty of felony, 
 ' and, being convicted thereof, shall 
 ' fee liable, at the discretion of the 
 ' court, to be kept in penal servi- 
 ' tude for life, or for any term not 
 ' less than five years (27 & 28 Vict. 
 ' c. 47) ; or to be imprisoned for 
 ' any term not exceeding two years, 
 ' with or without hard labour, and 
 ' with or without solitary confine- 
 ' ment, and, if a male under the age 
 ' of sixteen years, with or without 
 ' whipping." {Former provisions, 
 7 Will. 4 & 1 Vict. c. 89, s. 3, and 
 7 &8 Vict. c. 62, s. 1.) 
 
 A co m mon gaol was kept in re- 
 pair by rates levied upon the inhabit- 
 ants of the liberty in and for which 
 the gaol was. The keeper of the 
 gaol was appointed by the justices 
 of the liberty. He did not reside 
 at the gaol, but kept the keys and 
 had the charge of it. He was also 
 an inhabitant, and liable to be rated 
 to the repair of the gaol : — Held, 
 that in an indictment under 7 & 8 
 Vict. c. 62, s. 1 , for setting fire to the 
 gaol, it should be laid to be in the 
 possession of the keeper of the gaol, 
 but the intent of the prisoner should 
 have been laid to be to injure the 
 
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WHAT HOUSES OE BUDLDINGS. 
 
 39 
 
 inhaHtants of the liberty. Reg. v. 
 Connor, 2 Cox, C. C. 65— Parke. 
 
 A. was indicted for setting fire to 
 an out-house. The building set on 
 fire was a thatched pigsty, situate in 
 a yard in the possession of the pros- 
 ecutor, into which yard the back 
 door of his house opened, and which 
 yard was bounded by fences and by 
 other buildings of the prosecutor, 
 and by a cottage and barn, which 
 were let by him. to a tenant, but 
 which did not open into this yard : 
 — Held, that this pigsty was an out- 
 house within 7 Will. 4 & 1 Vict. c. 
 89, s. 3. Reg. v. Jones or Janes, 1 
 C. & K. 303 : 2 M. C. C. 308. 
 
 A building erected not for habit- 
 ation, but for workmen to take their 
 meals, and dry their clothes in, 
 which has four walls, a roof, a door, 
 but no window, but in which a per- 
 son slept with the knowledge, but 
 without the permission, of the own- 
 er, was not a house, the setting fire 
 to which was felony, within 7 Will. 
 4 & 1 Vict. c. 89, s. 3. Reg. v. Eng- 
 land, 1 C. & K. 533— Tindal. 
 
 A. was indicted for having set fire 
 to a building twenty-four feet square, 
 the sides of which were composed of 
 wood, with glass windows ; it was 
 roofed, and was used by a gentle- 
 man, who built houses on his own 
 property, for the purpose of dispos- 
 ing of them, as a storehouse for sea- 
 soned timber, as a place of deposit 
 for tools, and as a place where tim- 
 ber was prepared for use : — Held, 
 that this was a shed, and also an 
 erection used in carrying on trade. 
 Reg. V. Amos, T. & M. 423 ; 2 Den. 
 C. C. 65 ; 15 Jur. 90 ; 20 L. J., M. C. 
 103 ; 5 Cox, C. C. 222. 
 
 Burning a stable is not supported 
 by proof of burning a shed, which 
 has been built for and used as a sta- 
 ble originally, but has latterly been 
 used as a lumber shed only. Reg. 
 V. Golky, 2 M. & Kob. 475— Cress- 
 well. 
 
 A first count charged the firing 
 of a certain building used by O. for 
 carrying on his trade as a builder ; 
 
 and other counts laid the arson as 
 of a stable, an outhouse, and a stack 
 of haulm. It was proved that some 
 haulm had been carted from a field 
 and stacked in a building originally 
 intended for a stable, but afterward 
 divided into three parts by a wall, 
 which reached only to the eaves. 
 One part was used as a stable, and 
 the part fired contained the haulm 
 and a lot of tiles of the prosecutor, 
 who was a builder. The fire had 
 been kindled on the haulm : - Held, 
 first, that the building was improp- 
 erly described as an outhouse, a 
 shed, or a stable. Reg. v. Munson, 
 2 Cox, C. C. 186— Coleridge. 
 
 Held, secondly, that the count 
 charging an attempt to set fire to a 
 stack of haulm was suflicient, inas- 
 much as it is not necessary to the 
 character of a stack that it should 
 be erected out of doors. Tb. 
 
 Held, thirdly, that it was a build- 
 ing used by the prosecutor in carry- 
 ing on his trade, rb. 
 
 A building which never had been 
 inhabited, but which was construct- 
 ed as and intended for a dwelling- 
 house, but which contained straw, 
 boards and implements of husband- 
 ry, was not a house, an outhouse, or 
 a bam within 9 Geo. 4, c. 22, s. 7. 
 Elsmore v. St. Briaveh, 2 M. & R. 
 514; 8B. &C. 461. 
 
 A building separated from the 
 house by a passage, used as a school- 
 room, but within the curtilage, was 
 an outhouse within 9 Geo. 1, c. 22, 
 s. 1, although not of the ordinary 
 description of outhouses. Rex v. 
 Winter, R. & R. C. C. 295. 
 
 A common gaol was a house 
 within 9 Geo. 1, c. 22. Rex v. Don- 
 nevan, 2 W. Bl. 682 ; 1 Leach, C. 
 C. 69 ; 2 East, P. C. 1021. But see 
 now Req. v. Connor, 2 Cox. C. C. 
 65— Parke. 
 
 A building had been built for an 
 oven to bake bricks, but afterwards 
 was roofed, and a door put into it. 
 In this place the prosecutor kept a 
 cow ; adjoining to it, but not under 
 the same vooi, was a lean-to, in 
 
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40 
 
 ARSON AND BURNTNTG. 
 
 which another person kept a horse. 
 Neither the prosecutor nor the per- 
 son of whom he rented this build- 
 ing, had any house or farm-yard 
 near it, nor did any wall connect it 
 with' any dwelUng-house ; the near- 
 est dwelling being one hundred 
 yards off, and not belonging to eith- 
 er the prosecutor or his landlord : — 
 Held, that the building was neith- 
 er a stable or an out-house, and 
 that, if a person set it on fire (the 
 lean-to not being burnt), he was not 
 indictable for arson. Hex v. Haugh. 
 ton, 5 C. & P.' 555 — Taunton. 
 
 An open building in a field at a 
 distance from and out of sight of 
 the owner's house, though boarded 
 round and covered in, was not an 
 out-house within 7 & 8 Geo. 4, c. 30, 
 s. 2. Rex Y. Ellison, 1 M. C. C. 336. 
 
 Setting fire to paper only in a 
 drying loft belonging to a paper- 
 mill, no part of which was burnt, 
 was not setting fire to an out-house 
 within 9 Geo. 1, c. 22. Rexr. Toy. 
 lor, \ Leach, C. C. 49 ; 2 East, P. C. 
 1820. 
 
 An open shed in a farm-yard, 
 composed of upright posts support- 
 ing pieces of wood laid across them, 
 and covered with straw as a roof, 
 was an out-house within 7 & 8 Geo. 
 4, c. 30, s. 2. Rex v. Stallion, 1 M. 
 C. C. 398. 
 
 A cart hovel, consisting of a stub- 
 ble roof, supported by uprights, in 
 a field at a distance from other 
 buildings, was not an out -house 
 within 7 & 8 Geo. 4, c. 30, s. 2. 
 Rex V. ParroU, 6 C. & P. 402— 
 Vaughan. 
 
 6. Railway Stations and Buildings. 
 By 24 & 25 Vict. c. 97, s. 4, 
 "whosoever shall unlawfully and 
 " maliciously set fire to any station, 
 " engine-house, warehouse, or other 
 "bmlding belonging or appertain- 
 " ing to any railway, port, dock, or 
 " harbor, or to any canal or other 
 " navigation, shall be guilty of fel- 
 " ony, and, being convicted thereof, 
 " shall be liable, at the discretion of 
 
 "the court, to be kept in penal 
 " servitude for life, or for any term 
 " not less tha-- five years (27 & 28 
 "Vict. c. 47); or to be imprisoned 
 "for any term not exceeding two 
 " years, with or without hard labour, 
 " and, if a male under sixteen, with 
 "or without whipping." {Former 
 provision, 1 4: & 15 Vict. c. 19, s. 8.) 
 
 7. Public Buildings. 
 
 By s. 5, " whosoever shall unlaw- 
 ■' fully and maliciously set fire to 
 ■' any building, other than such as 
 'are in this act before mentioned, 
 ' belonging to the Queen, or to any 
 '' county, riding, division, city, bor- 
 ' ough, poor-law union,- jiarish, or 
 'place, or belonging to any uni- 
 'versity, or college, or hall of any 
 'university, or to any inn of court, 
 ' or devoted or dedicated to public 
 ' use or ornament, or erected or 
 ' maintained by public subscription 
 ' or contribution, shall be guilty of 
 ' felony, and, being convicted there- 
 ' of, shall be liable, at the discretion 
 ' of the court, to be kept in penal 
 ' servitude for Ufe, or for any term 
 'not less than five years (27 & 28 
 'Vict. c. 47); or to be imprisoned 
 'for any term not exceeding two 
 ' years, with or without hard labour, 
 ' and, if a male under sixteen, with 
 ' or without whipping." 
 
 8. Other Buildings. 
 
 By 24 & 25 Vict. c. 97, s. 6, 
 'whosoever shall tmlawfully and 
 ' maliciously set fire to any build- 
 ' ing other than such as are in this 
 'act before mentioned, shall be 
 ' guilty of felony, and, being con- 
 ' victed thereof, shall be liable, at 
 ' the discretion of the court, to be 
 'kept in penal servitude for any 
 ' tei-m not exceeding fourteen years, 
 ' and not less than five years (27 & 
 '28 Vict. c. 47); or to be impris- 
 ' oned for any term not exceeding 
 ' two years, with or without hard 
 'labour, and, if a male under six- 
 ' teen, with or without whipping." 
 
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PROPERTY IN BUILDINGS. 
 
 41 
 
 9. Property in Buildings. 
 
 By s. 7, " whosoever shall unlaw- 
 " fully and maliciously set fire to 
 "any matter or thing, being in, 
 " against, or under any building, 
 "under such circumstances that if 
 ' " the building were thereby set fire 
 "to, the ofience would amount to 
 " felony, shall be guilty of felony, 
 " and, being convicted thereof, shall 
 "be liable, at the discretion of the 
 "court, to be kept in penal servi- 
 "tude for any term not exceeding 
 "fourteen and not less than five 
 "years (27 & 28 Vict. c. 47); or to 
 "be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labovir, and, if a male un- 
 " der sixteen, with or without whip- 
 " pino-. (^Former provisions, 7 & .8 
 Victrc. 62, s. 2, and 14 & 15 Vict. 
 c. 19, s. 8.) 
 
 A person who maliciously set fire 
 to his own goods in his own house 
 with intent, by burning the goods, 
 to defraud an insurance company, 
 but did not set fire to the house, 
 might be convicted of felony under 
 an indictment framed upon 14 & 15 
 Vict. c. 19, s. 8, and 7 Will. 4 & 1 
 Vict. c. 89, s. 3. Beg. v. Lyons, 
 Bell, C. C. 38; 5 Jur., N. S. 23; 
 28 L. J., M. C. 33 ; 7 W. R. 58 ; 
 32 L. T. 150 ; 8 Cox, C. G. 84. 
 
 By s. 8, " whosoever shall unlaw- 
 " fully and maliciously, by any overt 
 "act, attempt to set fire to any 
 "building, or any matter or thing 
 "in the last preceding section men- 
 "tioned, under such circumstances 
 " that if the same were thereby set 
 "fire to', the offender would be 
 " guilty of felony, shall be guilty 
 "of felony, and being convicted 
 " thereof shall be liable, at the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for any term not 
 "exceeding fourteen and not less 
 "than five years (27 & 28 Vict. c. 
 "47); or to be imprisoned for any 
 "term not exceeding two years, 
 " with or without hard labour, and 
 "with or without solitary confine- 
 "ment, and, if a male under six- 
 
 " teen, with or without whipping." 
 (Former provision, 7 & 8 Vict. c. 25, 
 s. 7.) 
 
 Wilfully throwing a light into a 
 postoflice letter-box in a house with 
 the intention of burning the letters, 
 but not the house, is not a felony 
 Vrithin 24 & 25 Vict. c. 97, ss. 7, 8. 
 Beg. V. Batstone, 10 Cox, C. C. 20 
 — Williams. 
 
 10. By Gunpowder and Explosive 
 Substances. 
 
 By 24 & 25 Vict. c. 97, s. 9, 
 "whosoever shall unlawfully and 
 "maliciously, by the explosion of 
 " gunpowder or other explosive sub- 
 " stance, destroy, throw down, or 
 " damage the whole or any part of 
 "any dwelling-house, any 'person 
 "being therein, or of any building 
 "whereby the life of any person 
 "shall be endangered, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall be liable, at 
 "the discretion of the court, to be 
 "kept in penal servitude for life, or 
 "for any term not less than five 
 "years (27 & 28 Vict. c. 47); or to 
 "be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour, and with or with- 
 "out solitary confinement, and, if a 
 " male under sixteen, with or with- 
 " out whipping." (Previous provis- 
 sion, 9 & 10 Vict. c. 25, ss. 1, 2.) 
 
 This enactment was intended to 
 apply to malicious injuries to houses 
 by throwing explosive substances 
 against or into them, with intent to 
 destroy them or injure the inmates, 
 and not to cases of wanton mischief 
 or assault. Beg. v. Brown, 3 F. & 
 F. 821— Martin. 
 
 By s. 10, "whosoever shall un- 
 " lawfully and maliciously place 
 "or throw in, into, upon, under, 
 "against, or near any building, any 
 "gunpowder or other explosive sub- 
 " stance, with intent to destroy or 
 "damage any building, or any en- 
 "gine, machinery, working tools, 
 "fixtures, goods, or chattels, shall, 
 "whether or not any explosion take 
 
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42 
 
 ARSON AND BURNING. 
 
 "place, and whether or not any 
 "damage be caused, be guilty of 
 "felony, and, being convicted there- 
 " of, shall be liable, at the discretion 
 " of the court, to be kept in penal 
 " servitude for any term not exceed- 
 "ing fourteen and not less than five 
 "years (27 & 28 Vict. c. 47); or to 
 "be imprisoned for any term not 
 " exceeding two years, with or with- 
 "out hard labour, and with or with- 
 " out solitary confinement, and, if a 
 "male under sixteen, with or with- 
 "out whipping." (Previous provis- 
 ion, 9 & 10 Vict. c. 25, s. 6.) 
 
 In order to support an indictment 
 under 24 & 25 Vict. c. 97, s. 10, 
 for throwing gunpowder against a 
 house with intent to damage, it is 
 not enough to show simply that 
 gunpowder or other explosive sub- 
 stance was thrown against the house; 
 but it must also be shown that the 
 substance was in a condition to ex- 
 plode at the time it was thrown, 
 although no actual explosion should 
 result. Beff. v. Sheppard, 19 L T., 
 N. S. 19; 11 Cox, C. C. sola- 
 Kelly. 
 
 11. Crops, Stacks, or Woods. 
 
 By 24 & 25 Vict. c. 97, s. 16, 
 
 whosoever shall unlawfully and 
 
 maliciously set fire to any crop of 
 
 ' hay, grass, com, grain, or pulse, 
 
 ' or of any cultivated vegetable 
 
 ' produce, whether standing or cut 
 
 ■ down, or to any part of any wood, 
 
 ■ coppice, or plantation of trees, or 
 ' to any heath, gorse, furze, or fern, 
 ' wheresoever the same may be 
 
 growing, shall be guilty of fel- 
 ony, and, being convicted thereof, 
 shall be liable, at the discretion of 
 the court, to be kept in penal serv- 
 itude for any term not exceeding 
 fourteen years and not less than 
 ; five years (27 & 28 Vict. c. 47); 
 or to be imprisoned for any term 
 not exceeding two years, with or 
 without hard labour, and with or 
 without solitary confinement, and, 
 if a male under sixteen, with or 
 without whipping." [Previous 
 
 provision, 7 & 8 Geo. 4, c. 30, s. 17.) 
 
 By s. 17, " whosoever shall un- 
 " lawfully and maliciously set fire 
 " to any stack of corn, grain, pulse, 
 " tares, hay, straw, haulm, stubble, 
 " or of any cultivated vegetable 
 " produce, or of furze, gorse, heath, 
 " fern, turf, peat, coals, charcoal, 
 " wood, or bark, or to any steer of 
 " wood or bark, shall be guilty of 
 " felony, and, being convicted there- 
 " of, shall be liable, at the discre- 
 "tion of the court, to be kept in 
 " penal servitude for life, or for any 
 " term not less than five years (^27' 
 "•& 28 Vict. 0. 47); or to be im- 
 " prisoned for any tenn not exceed- 
 " ing two years, with or without 
 " hard labour, and with or without 
 " solitary confinement, and, if a 
 " male under sixteen, with or with- 
 " out whipping." [Previous enact- 
 ment, 7 Will. 4 & 1 Vict. c. 89, 
 s. 10.) 
 
 By s. 18, " whosoever shall un- 
 " lawfully and maliciously, by any 
 " overt act, attempt to set fire to 
 " any sueh matter or thing as in 
 " either of the last two preceding 
 " sections mentioned, under such 
 " circumstances that if the same 
 "were thereby set fire to, the of- 
 " fender would be, under either of 
 " such sections, guilty of felony, 
 " shall be guilty of felony, and, be- 
 " ing convicted thereof, shall be ha- 
 " ble, at the discretion of the court, 
 " to be kept in penal servitude for 
 " any term not exceeding seven and 
 " not less than five years (27 & 28 
 "Vict. c. 47); or to be imprisoned 
 " for any tei-m not exceeding two 
 " years, with or without hard labour, 
 " and with or without solitary con- 
 " finement, and, if a male under 
 " sixteen, with or without whip- 
 " ping." [Former statute, 9 & 10 
 Vict. c. 25, s. 7.) 
 
 Setting fire to a parcel of un- 
 threshed wheat was not a felony 
 within 9 Geo. 1, c. 22. Rex v 
 Judd, 2 T. R. 255 ; 1 Leach, C. C. 
 484; 2 East, P. C. 1018. 
 
 Sedge and rushes were not straw 
 
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COAL AND OTHER MINES. 
 
 43 
 
 within 7 Will. 4 & 1 Vict. c. 89, 
 which was confined to the straw of 
 wheat, oats, barley and rye. Reg. 
 V. Baldoch, 2 Cox, C. C. 55. 
 
 A. and B. were convicted for un- 
 lawfully and maliciously setting fire 
 to a stack of grain. The stack was 
 of the flax plant, with the seed or 
 grain in it, and the jury found that 
 the flax seed is a grain : — Held, that 
 the stack was a stack of grain with- 
 in 7 Will. 4 & 1 Vict. c. 89, s. 10. 
 Reg. V. Spencer, Dears. & B. C. C. 
 131 ; 2 Jur., N. S. 1212 ; 26 L. J., 
 M. C. 16; 7 Cox, C. C. 189. 
 
 It was a suiRcient overt act to 
 render a person Uable to be found 
 guilty of attempting to set fire to 
 a stack, under 9 & 10 Vict. c. 25, 
 s. 7, if he went to the stack with 
 the intention of setting fire to it 
 and lighted a lucifer match for 
 that purpose, but abandoned the 
 attempt because he found that he 
 was being watched. Reg. v. Tay- 
 lor, 1 F. & F. 511— Pollock. 
 
 A stack, of which the lower part 
 consisted of cole-seed straw, and the 
 upper part of wheat stubble, was 
 not a stack of straw ; and the set- 
 ting it on fire was not therefore a 
 capital ofiense within 7 & 8 Geo. 4, 
 c. 29, s. 17. Rex v. Tottenham, 7 
 C. & P. 237 — Denman and Gaselee. 
 
 Setting fire to a score of faggots 
 which were piled one upon another 
 in a loft, which was made by means 
 of a temporary floor put over an 
 archway roofed in between two 
 houses, and under which carts could 
 go, was not setting fire to a stack 
 of wood within 7 & 8 Geo. 4, c. 30, 
 s. 17. Rex V. Aris, 6 C. & P. 348 
 —Park. 
 
 A count charged an attempt to 
 set fire to a stack of haulm. It 
 was proved that some hauhn had 
 been carted from a field, and stacked 
 in a building originally intended for 
 a stable, but afterwards divided into 
 three parts by a wall, which reached 
 only to the eaves, one part was nsed 
 as a stable, and the part fired con- 
 tained the haulm and a lot of tiles : 
 
 Digitized by Microsoft® 
 
 — Held, that the count was suffi- 
 cient, inasmuch as it is not necessary 
 to the character of a stack that it 
 should be erected out of doors. 
 Reg. V. Munson, 2 Cox, C. C. 186 
 — Coleridge. 
 
 A. and B. were charged with set- 
 ting fire to a wood. They set fire 
 to a summer-house which was ui 
 the wood, and from the summer- 
 house the fire was communicated to 
 the wood : — Held, that they might 
 be convicted on this indictment. 
 Reg. V. Price, 9 C. & P. 729— 
 Gumey. 
 
 12. Coal and Other Mines. 
 
 By 24 & 25 Vict. c. 97, s. 26, 
 " whosoever shall unlawfully and 
 " maliciously set fire to any mine 
 " of coal, cannel coal, anthracite, 
 " or other mineral fuel, shall be 
 " guilty of felony, and being con- 
 "victed thereof shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for life or 
 " for any term not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour, and with or with- 
 " out solitary confinement, and, if 
 " a male under sixteen, with or 
 " without whipping." (Former pro- 
 vision, 7 Will. 4 & 1 Vict. c. 89, 
 s. 9.) 
 
 By s. 27, " whosoever shall un- 
 " lawfully and mahciously by any 
 " overt act attempt to set fire to 
 " any mine, under such circum- 
 " stances that if the mine were 
 " thereby set fire to, the oifender 
 " would be guilty of felony, shall 
 " be guilty of felony, and being 
 " convicted thereof shall be liable, 
 " at the discretion of the court, to 
 " be kept in penal servitude for any 
 " term not exceeding fourteen and 
 " not less than five years (27 & 28 
 " Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard labour, 
 " and with or without solitary con- 
 " finement, and, if a male^ under 
 
44 
 
 ARSON AND BURNING. 
 
 " sixteen, witt or without wliip- 
 " ping." {Former provision, 9 & 10 
 Vict c. 25, s. 7.) 
 
 13. Parties Indictable. 
 
 A wife was not indictable under 
 7 & 8 Geo. 4, c. 30, s. 2, for setting 
 fire to her husband's house with in- 
 tent to injure him ; as it is essential 
 that there should be an intent to 
 injure or defraud some third per- 
 son, and not one identified with 
 'herself. Hex v. March, 1 M. C. C. 
 182. 
 
 If A. counsels and encourages B. 
 to set fire to a malthouse, and B. 
 attempts to set it on fire, both may- 
 be jointly indicted as principals for 
 the misdemeanor of attempting to 
 set the malthouse on fire, although 
 A. was not present at the time of 
 the attempt. Heg. v. Olayton, 1 C. 
 &K..128— WilUams. 
 
 ' On an indictment for maliciously 
 setting fire to a building, it is not 
 necessary to prove actual ill-will in 
 the prisoner towards the owner; and 
 in order to justify a jury in acquit- 
 ting a prisoner on the ground of in- 
 sanity, they must believe that he 
 did not know right from wrong ; 
 but if they find that the prisoner, 
 when he did the act, was in a state 
 of mind that he was not conscious 
 that the effect of it would be to in- 
 jure any other person, that will 
 amount to a general verdict of not 
 guilty. Reg. v. Davies, 1 F. & F. 
 69 — Crompton. 
 
 14. Indictment. 
 
 By 24 & 25 Vict. c. 97, s. 60, " it 
 " shall be sufficient in any indict- 
 " ment for any oifence against the 
 " act, where it shall be necessary to 
 " allege an intent to injure or de- 
 " fraud, to allege that the party ac- 
 " cused did the act with intent to 
 " injure or defraud, as the case may 
 " be, without alleging an intent to 
 " injure or defraud any particular 
 " person, and on the trial of any such 
 " oifence, it shall not be necessary to 
 
 " prove an intent to injure or de- 
 " fraud any particular person, but it 
 "shall be sufficient to prove that 
 "the party accused did the act 
 " charged with an intent to injure 
 " or defraud, as the case may be." 
 
 It must appear upon the face of 
 an indictment for arson that the 
 house was that of another; and 
 it must state whose house, and with 
 that the proof should agree. Hex 
 Y.Iiickman,2'Ea.st,F.G.1034:. And 
 see Hex v. Glandfield, 2 East, P. 
 0. 1034. 
 
 An indictment for setting fire to 
 an out-house was good, though 
 it might have, in point of law, 
 formed part of the dwelling-house, 
 the burning of which was arson at 
 common law. Eex v. North, 2 East, 
 P. C. 1021. 
 
 A house, in part of which a man 
 lives, and other parts of which he 
 lets to lodgers, may be described, 
 in an indictment for setting fire to 
 it, as his house, though he has taken 
 the benefit of the insolvent debtors' 
 act, and executed an assignment 
 including the house, if the assignee 
 has not taken possession ; at least, 
 no objection can be made, if in other 
 counts it is stated as the house of 
 the assignee, and in others of the 
 lodger whose room was set fire to. 
 Rex V. Baa, 1 M. C. C. 30. 
 
 A prisoner was convicted on an 
 indictment for setting fire with in- 
 tent to injure A. B. The property 
 fired belonged to A. B. The jury 
 found the intent to injure C. D. : — 
 Conviction held good. Rex v. 
 Newill, 1 M. C. C. 458. 
 
 So an indictment under 7 & 8 
 Geo. 4, c. 30, s. 17, for setting fire 
 to a stack of straw, was good, with- 
 out stating any intent to injure. Ih. 
 
 It was not necessary to aver in an 
 indictment on 9 Geo. 1, c. 22, for 
 setting fire to a hay-stack, that the 
 stack " was thereby burnt." Rex 
 V. Salmon, R. & R. C. C. 26. 
 
 In an indictment on 9 Geo. 1, c. 
 22, for setting fire to a hay-stack, it 
 was no answer to the charge that 
 
 Digitized by Microsoft® 
 
EVIDENCE. 
 
 45 
 
 the prisoner had no malice or spite 
 to the owner of the stack. Ih. 
 
 An indictment for setting fire to 
 a barge, the property of another, 
 ought to contain an averment 'that 
 it was done with an intent to injure 
 the owner. Rex v. Smith, 4 C. & 
 P. 569 — Gaselee and Alderson. Sed 
 quaere, see Rex v. Newill, 1 M. C. C. 
 458, and 24 & 25 Vict. c. 97, s. 60. 
 
 On an indictment for setting fire 
 to a mill, with intent to -injure the 
 occupiers thereof: — Held, that an 
 injury to the mill being the neces- 
 sary consequence of setting fire to 
 it, the intent to injure might be in- 
 ferred ; for a man must be supposed 
 to intend the necessary consequence 
 of his own act. Rex v. Farrington, 
 R. & R. 0. 0. 207. 
 
 An indictment on 7 & 8 Geo. 4, 
 c. 30, ss. 2 and 17, for setting fire to 
 a barn and a stack of straw, charged 
 the ofiences to have been committed 
 " feloniously, voluntarily and mal- 
 iciously," instead of " feloniously, 
 unlawfully and maliciously," was 
 bad. Rex v. Reader, 4 C. & P. 
 245 ; 1 M. C. C. 239. 
 
 The prisoners had set fire to a 
 stack of stubble (which, in Cam- 
 bridgeshire, is called haulm); they 
 were indicted on a first indictment 
 for setting fire to a stack of straw : 
 — ^Held, that this was not straw. 
 And, on their being again indicted 
 for settiag fire to a stack of straw 
 called haulm, the judge intimated 
 that to convict upon such a count 
 would not be safe ; and the verdict, 
 in consequence, was taken upon 
 other 'counts, charging the setting 
 fire to a bam and a wheat stack. 
 lb. 
 
 On an indictment for setting fire 
 to a stack of beans, a mistake as to 
 the name of the place where the 
 offence was committed is immaterial ; 
 the charge is transitory, not local. 
 Bex V. Woodfvard, 1 M. C. C. 323. 
 
 Upon a statute which made it 
 capital to set fire to a stack of pulse, 
 it was sufficient to state that the 
 prisoner set fire to a stack of beans, 
 
 Digitized by Microsoft® 
 
 The judges will take notice that 
 beans are pulse. Lh. 
 
 An indictment on 7 & 8 Geo. 4, 
 0. 30,. s. 17, charged a party with 
 setting fire to a stack of barley, of 
 the value of lOOZ., of R. P. W. was 
 good, although the words of the 
 statute creating the ofience were 
 " any stack of corn or grain." Rex 
 V. Swatkins, 4 C. & P. 548— Pat- 
 teson. 
 
 Held, also, that if the indictment 
 stated "that the prisoner felonious-* 
 ly, unlawfully and maliciously did 
 set fire to a certain stack of barley, 
 ofthevalifeoflOO;., of R. P. W., 
 then and there being," this is suffi- 
 cient, without stating that the pris- 
 oner feloniously, unlawfully and 
 maliciously did then and there set 
 fire to the stack. Ih. 
 
 15. Evidence. 
 
 Notice to produce Policy,.^ — On an 
 indictment for arson on the prosecu- 
 tion of an insurance company, their 
 books are not evidence of the insur- 
 ance, without notice to produce the 
 policy. Rex v. Doran, 1 Esp. 127 
 — Kenyon. 
 
 A prisoner tried at the assizes for 
 arson, on Wednesday, the 20th of 
 March, was on Monday, the 18th, 
 served at the prison with a notice 
 to produce a policy of insurance. 
 The commission day was Friday, 
 the 15th, and the prisoner's home 
 was ten miles from the assize town : 
 — Held, that the notice was served 
 too late. Rex v. EUicombe, 5 C. & 
 P. 522; 1 M. & Rob. 260— Little- 
 dale. 
 
 Notice to produce policies of in- 
 surance, served on the prisoner's at- 
 torney on Tuesday evening, the 
 prisoner then in Maidstone, the pol- 
 icies being twenty miles off, and the 
 trial taking place on Thursday, is 
 sufficient. Reg. v. Barker, 1 P. & 
 P. 326— Bramwell. 
 
 Upon an indictment for arson, 
 with intent to defraud an insurance 
 company, the nature of the proceed- 
 ings does not give notice to the pris- 
 
46 
 
 ASSAULT AND BATTERY. 
 
 oner to produce the policy, so as to 
 dispense T\^ith actual notice to pro- 
 duce it. iieg. V. Kitson, Dears. C. 
 C. 187 ; 17 Jur. 422 ; 22 L. J., M. 
 C. 118. 
 
 Commission of Act — Motives and 
 Intent^ — A. was indicted for wilful- 
 ly setting fire to a rick by firing a 
 gun close to it on the 29th of 
 March : evidence that the rick was 
 also on fire on the 28th of March, 
 and that A. was then close to it, 
 .having a gun in his hand, is receiv- 
 able to shew that the fire on the 
 29th was not accidental. Reg. v. 
 Dossett, 2 C. & K. 306; •2 Cox, C. 
 C. 243— Maule. 
 
 On an indictment for arson in set- 
 ting fire to a rick, the property of 
 A., evidence may be given of the 
 prisoner's presence and demeanor 
 at fires of other ricks, the property 
 respectively of B. and C, occurring 
 the same night, although those fires 
 are the subject of other indictments 
 against the prisoner, such evidence 
 being important to explain his 
 movements and general conduct be- 
 fore and after the fire of A.'s rick ; 
 but evidence is not admissible of 
 threats, of statements, or of particu- 
 lar acts, pointing alone to other in- 
 dictments, and not tending to im- 
 plicate or explain the conduct of the 
 prisoner in reference to that fire. 
 Beg. V. Taylor, 5 Cox, C. C. 138— 
 Patteson. 
 
 Under an indictment for arson, 
 where the prisoner is charged with 
 wilfully setting fire to her master's 
 house, the previous and abortive at- 
 tempts to set fire to diiferent por- 
 tions of the same premises are ad- 
 missible, though there is no evidence 
 to connect the prisoner with either 
 of them. Reg. v. Bailey, 2 Cox, C. 
 C. 311. 
 
 Upon an indictment for arson, 
 with intent to injure the person in 
 occupation of the premises, the pris- 
 oner may be found guilty, although 
 his intent is proved to have been to 
 obtain a reward for giving the ear- 
 liest intimation of a fire at the en- 
 
 gine station. Beg. v. Began, 4 Cox, 
 C. C.335. 
 
 Upon such an indictment it is not 
 competent for the prosecutors to 
 shew that other fires, of which 
 notice was given by the prisoner, 
 were of a similar nature to the one 
 in question, and different from those 
 of which notice was given by other 
 parties. Ih. 
 
 On an indictment for arson, one 
 coimt laying an intent to defraud, 
 and it being opened for the prose- 
 cution that the motive might have 
 been to realise the money insured 
 by the prisoner upon her goods ; 
 evidence was received that she was 
 in easy circumstances, with a view 
 to shew that she was at all events 
 under no pecimiary temptation to 
 commit such an act. Beg.Y. Grant, 
 4 F. & F. 322— Pollock. 
 
 On a charge of arson (the case 
 turning on identity) evidence was 
 rgected that, a few days previously 
 to the fire, another building of the 
 prosecutor's was found on fire, and 
 the prisoner was seen standing by, 
 with a demeanor which shewed in- 
 difference or gratification. Beg. v. 
 Harris, 4 F. & F. 342— Willes. 
 
 VI. Assault and Battebt. 
 
 1. Common, 47. 
 
 2. On Clergi/men or Ministers of Re- 
 
 ligion, 49. 
 
 3. On Magistrates or other Persons 
 
 preseriiing Wrecks, 49. 
 
 4. On Peace and other Officers in Ex- 
 
 ecution of Dull/, 49. [52. 
 
 5. On Seamen, Keelmen or Casters, 
 
 6. On obstructing Sale of Grain or its 
 free Passage, 52. 
 
 7. Arising from Trade Combinations 
 
 or Conspiracies, 52. [52. 
 
 8. Occasioning actuxd Bodily harm, 
 
 9. Indictment and Evidence, 53. 
 
 10. Punishment, 54. 
 
 11. Costs of Prosecution, 5i. 
 
 12. Summary Convictions, 54. 
 
 (a) Statute, 54. [56. 
 
 (b) Complainant or Informant, 
 
 (c) Searing and Certificate, 56. 
 
 (d) Aggravated upon Women and 
 
 Children, 57. 
 
 (e) Amounting to Felony, 58. 
 
 (f ) Fines, 58: 
 
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COMMON. 
 
 47 
 
 13. Indecent and with Intent to ravish 
 
 — See Eape, Abuse and De- 
 riLEMBNT op Women and 
 Children. 
 
 14. With Intent to rob — See Kob- 
 
 BEKT. 
 
 1. Obmmon. 
 To support a charge of assault, 
 such an assault must be shewn as 
 could not be justified if an action 
 was brought for it, and leave and 
 licence pleaded. lieg. v. Meredith, 
 
 8 C. & P. 589— Abinger. 
 
 If a person presents a pistol, pur- 
 porting to be a loaded pistol, at an- 
 other, and so near as to have been 
 dangerous to life if the pistol had 
 gone off; semble, that this is an as- 
 sault, even though the pistol was, in 
 fact, not loaded. Reg. \. St. George, 
 
 9 C. & P. 483— Parke. But see 
 Blalce V. Barnard, 9 C. & P. 626— 
 Abinger. 
 
 A. presented a loaded pistol at 
 B., but was prevented from pulHng 
 the trigger : — Held, that A. could 
 be prdperly convicted of this as- 
 sault, on an indictment for felon- 
 iously attempting to discharge load- 
 ed arms at B. Ih. 
 
 Making a female patient strip 
 naked, under the pretencd that the 
 defendant, a medical man, cannot 
 otherwise judge of her illness, is, if 
 he himself takes off her clothes, an 
 assault. Rex v. Rosinshi, 1 M. C 
 C. 19. 
 
 If a schoolmaster takes indecent 
 liberties with a female scholar, with- 
 out her consent, though she does 
 not resist, he is liable to be punished 
 as for a common assault. Rex v. 
 Mchol,^.. &R. C. C. 130. 
 
 If parish officers cut off the hair 
 of a pauper in the poor-house by 
 force, and against the will of such 
 pauper, this is an assault ; and if it 
 be done as matter of degradation, 
 and not with a view to cleanliness, 
 that will be an aggravation, and go 
 to increase the damages. Forde v. 
 Skinner, 4 C. «fe P. 239— Bayley. 
 
 If one has an idiot brother who 
 is bed-ridden in his house, and 
 
 keeps him in a dark room without 
 sufficient warmth or clothing, this 
 will not be an assault or an impris- 
 onment, nor will proof of this sup- 
 port an indictment for an assault or 
 an imprisonment. Rex v. Smith, 2 
 C. & P. 449— Burrough. 
 
 B. was indicted, with three others, 
 for an assault with intent to do some 
 grievous bodily harm. It was 
 proved that he, with the other pris- 
 oners, had assaulted the prosecutor, 
 and afterwards they had returned 
 together and picked up some stones. 
 Then B. withdrew, and the other 
 prisoners threw the stones and 
 wounded the prosecutor. The jury 
 found the three prisoners who threw 
 the stones guilty of the felony, and 
 
 B. guilty only of a common assault : 
 — Held, that B. was rightly con- 
 victed. Reg. V. Phillips, 3 Cox, C. 
 
 C. 225. 
 
 A. was advancing in a threaten- 
 ing attitude, with an intention to 
 strike B., so that his blow would 
 have almost immediately reached 
 B., ifhe had not been stopped: — 
 Held, that it was an assault in point 
 of law, though, at the particular mo- 
 ment when A. was stopped, he was 
 not near enough for his blow to take 
 effect. Stephens v. Myers, 4 C. & 
 P. 349— Tindal. 
 
 If one man strikes another a blow, 
 that other has a' right to defend 
 himself, and strike a blow in his de- 
 fence, but he has no right to revenge 
 himself; and if, when all the dan- 
 ger is past, he strikes a blow not 
 necessary, he commits an assault 
 and a battery. Reg. v. DriscoU, 
 Car. & M. 214— Coleridge. 
 
 If two go out to strike one sin- 
 other, and do so, it is an assault in 
 both, and it is quite immaterial who 
 strikes the first blow. Reg. v. Lewis, 
 1 C. & K. 419— Coleridge. 
 
 Three boys under fourteen had 
 connection with a girl, aged nine ; 
 they were indicted for an assault ; 
 the jury found them guilty, the child 
 being an assenting party, bat that 
 from her tender years she did not 
 
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48 
 
 ASSAULT AND BATTERY. 
 
 know what she was about : — Held, 
 that this was not an assault, and 
 that the conviction was wrong. Reg. 
 V. Read, 2 C. &. K. 957 ; 1 Den. C. 
 C. 377 ; T. & M. 52 ; 3 New Sess. 
 Cas. 405 ; 13 Jur. 68 ; 18 L. J., M. 
 C. 88. 
 
 It is an assault to point a loaded 
 pistol at any one ; but not an assault 
 to point a pistol at another which 
 is proved not to be so loaded as to 
 be able to be discharged. Reg. v. 
 James, 1 C. & K. 530— Tindal. 
 
 Attempting to carnally know and 
 abuse a girl between the ages often 
 and twelve is not an assault, if the 
 girl consents to all that is done, but 
 is a misdemeanor. Reg. v. Martin, 
 9 C. & P. 213 ; 2 M. C. C. 123 ; 
 »S^. P., Reg. V. Johnson, L. & C. 
 632 ; 10 Cox, C. C. 114. 
 
 The person making such attempt, 
 with the consent of the girl, is not 
 indictable for an assault, but is in- 
 dictable for the misdemeanor of 
 attempting to commit the misde- 
 meanor of carnally knowing and 
 abusing her. Ih.; S. P., Reg. v. 
 Neale, 35 L. J., M. C. 60. 
 
 Where a medical practitioner had 
 sexual connection with a female pa- 
 tient of the age of fourteen, who 
 had for some time been receiving 
 medical treatment from him : — 
 Held, that he was guilty of an 
 assault, the jury' having found that 
 she was ignorant of the nature of 
 his act, and made no resistance, 
 solely from a bona fide belief that 
 he was (as he represented) treating 
 her medically, with a view to her 
 cure. RegY. Case, T. & M. 318; 
 1 Den. C. C. 580 ; 4 New Sess. 
 Gas. 347 ; 14 Jur. 489 ; 19 L. J., 
 M. C. 174 ; 4 Cox, C. C. 220. 
 
 Where a master of a union in- 
 flicts personal chastisement on a 
 female pauper in an indecent man- 
 ner, he is guilty of an assault, even 
 though the extent of the correction 
 is within the limits of moderation. 
 Reg. V. Miles, 6 Jur. 24i3 — Gurney. 
 
 A. put cantharides into rum, and 
 gave it to B. to drink ; B. drank it, 
 
 not knowing that the cantharides 
 was in the rum, and became ill : — 
 Held, that A. was neither indictable 
 for an assault, nor for a misdemean- 
 or at common law. Reg. v. Han- 
 son, 2 C. & K. 912 — Williams; 
 S. P., Reg. V. Walkden, 1 Cox, C. 
 C. 282 ; Reg. v. Dilwokh, 2 M. & 
 Rob. 531. 
 
 C. was delivered of a child at the 
 house at which A. and B. resided, 
 they-telling.her that the child was 
 to be taken to an institution to be 
 nursed. A. & B. took the child, 
 and put it into a bag, and hung it 
 on some park-palings at the side of 
 a foot-path, and there left it : — 
 Held, that this was an assault on 
 the child. Reg. v. March, 1 C. & 
 K. 496— Tindal. 
 
 If a party is turning towards the 
 wall in the street, at night, for a 
 particular occasion, a watchman is 
 not justified in collaring him to pre- 
 vent him so doing. Booth v. Han- 
 ley, 2 C. & P. 288. See 2 & 3 
 Vict. c. 47. 
 
 A party struck at may strike again, 
 to prevent a repetition. Anon. , 2 Le- 
 win, C. C. 48— Parke. 
 
 A person may, under particular 
 circumstances, justify laying hands 
 on another in order to serve him 
 with process. Harrison v. Hodg- 
 son, 10 B. & C. 445 ; 5 M. & R. 
 392. 
 
 A police constable is not justified 
 under 10 Geo. 4, c. 44, s. 7, in lay- 
 ing hold of, pushing along the high- 
 way, and ordering to be oflT, a person 
 found by him conversing in a crowd 
 with another, merely because the 
 person with whom he happens to 
 be conversing is known to be a re- 
 puted thief. Stochen v. Carter, 4 C. 
 & P. 477 -- Gaselee. See 2 & 3 
 Vict. c. 47. 
 
 Upon an indictment under 24 & 
 25 Vict. c. 100, s. 20, for unlawfully 
 and maliciously wounding or inflict- 
 ing grievous bodily hai-m, a verdict 
 for a common assault may be return- 
 ed. Reg. V. Tayhr, Reg. v. Oonwell, 
 20 L. T., N. S. 402 ; 17 W. R. 623 ; 
 
 Digitized by Microsoft® 
 
CLERGYMEN— MAGISTRATES, ETC. 
 
 49 
 
 11 Cox, C. C. 261 ; 4 L. R., C. C. 
 194. 
 
 On an indictment for a felonious 
 assault, the jury being unable to 
 agree as to the felonious intent, were 
 discharged by arrangement, in order 
 that the prisoner might plead guilty 
 to a common assault with a view to 
 compensation. Reg. v. Roximrgh, 
 
 12 Cox, C. C. 8. 
 
 2. On Clergymen or Ministers of 
 Religion. 
 
 By 24 & 25 Vict. c. 100, s. 
 36, " whosoever shall, by threats or 
 " force, obstruct or prevent, or en- 
 " deavor to obstruct or prevent, any 
 " clergyman or other minister in or 
 " from celebrating divine service, or 
 " otherwise officiating in any church, 
 "chapel, meeting-house or other 
 " place of divine worship, or in or 
 " from the performance of his duty 
 " in the lawful burial of the dead 
 " in any churchyard or other burial- 
 " place, or shall strike or offer any 
 " violence to, or shall, upon any 
 " civil process, or under the pre- 
 '■' tence of executing any civil pro- 
 " cess, arrest any clergyman or 
 " other minister who is engaged in, 
 " or to the knowledge of the offend- 
 " er is about to engage in, any of 
 " the rights or duties in this section 
 "aforesaid, or who to the knowl- 
 " edge of the offender shall be go- 
 " ing to perform the same, or re- 
 "turnmg from the performance 
 " thereof, shall be guilty of a mis- 
 " demeanor, and, being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be impris- 
 " oned for any term not exceeding 
 " two years, with or without hard 
 " labour." 
 
 An indictment charging that the 
 defendant, in a churchyard, inter- 
 rupted and obstructed W. C, clerk, 
 in reading the order for the burial 
 of the dead and interring a corpse, 
 and unlawfully, and by threats and 
 menaces, hindered the burial of the 
 corpse, is bad in arrest of judg- 
 ment, for not averring that W. 
 
 was a clerk in holy orders, and law- 
 fully acting as such in the burial of 
 the corpse, and for not setting out 
 the particular threats and menaces 
 used. Rex v. Gheere, 7 D. & R. 
 461 ; 4 B. & C. 902. 
 
 3. On Magistrates or other Persons 
 
 in Preserving Wrecks. 
 
 By 24 & 25' Vict. c. 100, s. 37, 
 whosoever shall assault and strike 
 or wound any magistrate, officer 
 or other person whatsoever law- 
 fully authorized, in or on account 
 of the exercise of his duty in or 
 concerning the preservation of any 
 vessel in distress, or of any vessel, 
 goods or effects wrecked, strand- 
 ed or cast on shore, or lying under 
 water, shall be guilty of a mis- 
 demeanor, and, being convicted 
 thereof, shall be liable, at the dis- 
 cretion of the court, to be kept in 
 penal servitude for any term not 
 .exceeding seven years, and not 
 less than five years (27 & 28 
 Vict. c. 47), or to be imprisoned 
 for any term not ' exceeding two 
 years, with or without hard la- 
 bour." 
 
 4. On Peace and other Officers in 
 
 Execution of Duty. 
 
 By 24 & 25 Vict. c. 100, s. 38, 
 whosoever shall assault any per- 
 son with intent to commit felony, 
 or shall assault, resist or wilfully 
 obstruct any peace officer in the 
 due execution of his duty, or any 
 person acting in aid of such offi- 
 cer, or shall assault any person 
 with intent to resist or prevent 
 the lawful apprehension or de- 
 tainer of himself or of any other 
 person for any offence, shall be 
 guilty of a misdemeanor, and, be- 
 ing convicted thereof, shall be lia- 
 ble, at the discretion of the court, 
 to be imprisoned for any term not 
 exceeding two years, with or with- 
 out hard labour.' ' 
 By 32 & 33 Vict. c. 99, s. 12, 
 where any person is convicted 
 of an assault and battery on 
 
 Fish. Dig.— 4 Digitized by Microsoft® 
 
50 
 
 ASSAULT AND BATTERY. 
 
 " any constable, or police, or peace 
 " officer when in the execution 
 " of his duty, such person shall 
 " on summary conviction before 
 " two or more justices, or one stip- 
 " endiary magistrate, be Uable either 
 "to pay a penalty not exceeding 
 " 20?., and in default of payment to 
 " be imprisoned for a term not ex- 
 " ceeding six months, or, in the dis- 
 " cretion of the court, to be im- 
 " prisoned for any term not exceed- 
 " ing six months, with or without 
 " hard labour." 
 
 A constable and his assistants 
 who take a bailiff into custody 
 during an affray to rescue his pris- 
 oner, in which the bailiff struck one 
 of the assailants, and the prisoner 
 was rescued, are guilty of an as- 
 sault and a rescue, as the bailiff was 
 authorized by his warrant. Anon., 
 1 East, P. C. 305— Heath. 
 
 One of the marshals of the city 
 of London, whose duty it was, on 
 the day of a public meeting at 
 Guildhall, to see that a passage was 
 kept for the transit to their car- 
 riages of the members of the cor- 
 poration and others, directed a per- 
 son in the front of a crowd at the 
 entrance to stand back, and, on be- 
 ing told by him that he could not 
 for those behind him, struck him 
 immediately on the face, saying 
 that he would make him : — Held, 
 that in so doing the marshal ex- 
 ceeded his authority, and th^it he 
 should have confined himself to the 
 use of pressure, and should have 
 waited a short time to afford an op- 
 portunity for removing the party in 
 a more peaceable way. Imason v. 
 Gope, 5 0. & P. 193— Tindal. 
 
 An innkeeper, having am escaped 
 felon in his house, to the policemen, 
 who had remarked, "You scoun- 
 drel, how dare you harbour a fel- 
 on ?" said " You had better go and 
 find him ;" but he did nothing, and 
 the policemen went up stairs and 
 saw the felon make bis escape from 
 the window, is no evidence of an 
 obstructing of the felon's' apprehen- 
 
 sion. JRec/. V. Green, 8 Cox, C. C. 
 441 — Blackburn. 
 
 A. was indicted for assaulting a 
 policeman in the execution of his 
 duty. It appeared that the police- 
 man had gone into a public-house 
 where the defendant was having 
 high words with the landlady. The 
 defendant tried to go into a room 
 in the house in which a guest was, 
 and the policeman, without being 
 desired to do so, collared him, and 
 prevented him from going into the 
 room, and A. struck the policeman, 
 and several blows passed on both 
 sides : — Held, that if the jury was 
 satisfied that no breach of the peace 
 was likely to be committed by the 
 defendant on the guest in the room, 
 it was no part of the policeman's 
 duty to prevent the defendant from 
 entering it ; but, assuming that to 
 be so, if the defendant used more 
 violence than was necessary to re- 
 pel the assault committed on him 
 by the policeman, the defendant 
 would be liable to be convicted of 
 a common assault. Reg. v. Mabel, 
 9 C. & P. 474— Parke. 
 
 A constable (out of the limits of 
 the Metropolitan Acts) when he is 
 clearing a public-house, is not act- 
 ing in the execution of his du"-- un- 
 less there is a nuisance or a disturb- 
 ance of the peace. Iteg. v. Prebhle, 
 1 F. & F. 325— Bramwell. 
 
 A. committed an assault upon a 
 constable, who, two hours after- 
 wards, having obtained assistance, 
 and when there was no danger of 
 any renewal of the assault, attempt- 
 ed to apprehend him, and was 
 wounded in the attempt : — Held, 
 that his apprehension at that time 
 was imlawful; and that he was im- 
 properly convicted of wounding the 
 constable with intent to prevent his 
 lawful apprehension. Reg. v. Walk- 
 er, 6 Cox, C. C. 371 ; 23 L. J., M. 
 C. 123. 
 
 A police constable, whilst stand- 
 ing outside the defendant's house, 
 saw him take up a shovel and hold 
 it in a threatening attitude over Mb 
 
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PEACE AND OTHER OFFICERS. 
 
 51 
 
 wife's head, and heard him say at 
 the same time, " If it was not for 
 the policeman outside, I would split 
 your head open." In about twenty 
 minutes' time the defendant left his 
 house, after saying that he would 
 leave his wife altogether, and was 
 taken into custody by the constable, 
 who had no warrant, when he had 
 proceeded a short distance in the 
 direction of his father's residence; 
 he resisted the constable, and was 
 tried and convicted upon an indict- 
 ment charging him with assaulting 
 the constable whilst in the execu- 
 tion of his duty : — ^Held, that the 
 constable was justified in appre- 
 hending the defendant, and that the 
 conviction therefore was right. Reg. 
 V. UgU, Dears. & B. C. C. 332; 7 
 Cox, C. C. 389 ; 3 Jur., N. S. 1130; 
 27 L. J., M. C. 1., 
 
 An indictment against a person 
 for refusing to aid and assist a con- 
 stable in the execution of his duty, 
 and prevent an assault made upon 
 him by prisoners in his custody on 
 a charge of felony, with intent to 
 resist their lawful apprehension, is 
 sufficient, without stating how the 
 apprehension became lawful ; and 
 it is enough if it states a refusal to 
 assist, without the further allega- 
 tion that he did not, in fact, aid and 
 assist. Reg. v. Sherlock, 10 Cox, 
 C. C. 170 ; 1 L. R., C. C. 20 ; 12 
 Jur., N". S. 126 ; 35 L. J., M. C. 
 92 ; 14 W. R. 288; 13 L. T., N. S. 
 623. 
 
 D. was indicted for assaulting a 
 sub-bailiif of a county court. The 
 latter was endeavouring to appre- 
 hend D. under a warrant issued out 
 of the county court, when the as- 
 sault was committed, but not with 
 more violence than was necessary to 
 prevent the apprehension : — Held, 
 that the production of the county 
 court warrant at the trial was a 
 sufficient justification of the act of 
 the bailifi", without proof of the 
 previous proceedings in the county 
 court. Reg. v. Bavies, 8 Cox, C. C. 
 
 486 ; L. & C. 64 ; 7 Jur., K S. 
 1040 ; 4 L. T., ISr. S. 559. 
 
 An excise officer gave the defend- 
 ant a search warrant to look at, 
 who then refused to deliver it up, 
 and a scuffle ensued : on an indict- 
 ment for an assault, the question 
 left to the jury was, whether the 
 officer used more force than was 
 necessary to recover possession of 
 the warrant. Rex v. Milton, M. & 
 M. 107 ; S. C, nom. Rex v. Mitton, 
 3 C. & P. 31— Tenterden. 
 
 The defendant was convicted in 
 a penalty with costs, or to be im- 
 prisoned seven days, the penalty not 
 having been paid, a warrant was 
 issued, under 11 & 12 Vict. c. 43, 
 s. 26, for his apprehension, ad- 
 dressed " To the constable of G." 
 It was given to a county policeman 
 to execute. While he was attempt- 
 ing to apprehend the defendant, the 
 defendant resisted and wounded the 
 constable : — Held, that a county 
 policeman had no authority to exe- 
 cute it, it being addressed to the 
 parish constable ; and that the ap- 
 prehension was therefore illegal. 
 Reg. V. Sanders, 10 Cox, C. C. 445 ; 
 36 L. J., M. C. 87 ; 1 L. R., C. C. 
 75 ; 16 L. T., ]Sr. S. 331 ; 15 W. R. 
 752. 
 
 To support a charge of assault 
 on a constable in the execution of 
 his duty, it is not necessary that the 
 defendant should know that he was 
 a constable then in the execution of 
 his duty ; it is sufficient that the 
 constable should have been actu- 
 ally in the execution of his duty 
 and then assaulted. Reg. v. Forbes, 
 10 Cox, C. C. 362— Russell Gurney, 
 Recorder. 
 
 The prisoner assaulted a police 
 constable in the execution of his 
 duty. The constable went for as- 
 sistance, and after an interval of 
 an hour returned with three other 
 constables, when he found that the 
 prisoner had retired into his house, 
 the door of which was closed and 
 fastened; after another interval of 
 
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52 
 
 ASSAULT AND BATTERY. 
 
 fifteen minutes the constables forced 
 open the door, entered, and arrested 
 the .prisoner, who wounded one of 
 them in resisting his apprehension : 
 — Held, that as there was no dan- 
 ger of any renewal of the original 
 assault, and as the facts of the case 
 did not constitute a fresh pursuit, 
 the arrest was illegal. Beg. v. 
 Marsden, 1 L. R., C. C. 131 ; 37 L. 
 J., M. C. 80 ; 18 L. T., N. S. 298 ; 
 16 W. R. 711 ; 11 Cox, C. C. 90. 
 
 A police constable though not 
 bound in the execution of his duty 
 to assist a pubUcan in ejecting an 
 intruder from his house, yet in do- 
 ing so acts lawfully ; and resistance 
 to the constable renders the party 
 liable to a conviction for an assault. 
 Reg. V. Roxburgh, 12 Cox, C. C. 8. 
 
 5. On Seamen, Keehnen or Qasters. 
 
 By 24 & 25 Vict. o. 100, s. 40, 
 " whosoever shall unlawfully and 
 " with force hinder or prevent any 
 " seaman, keelman or caster from 
 " working at or exercising his law- 
 " ful trade, business or occupation, 
 " or shall beat or use any violence 
 " to any such person with intent to 
 " hinder or prevent him from work- 
 " ing at or exercising the same, 
 " shall, on conviction thereof be- 
 " fore two justices of the peace, be 
 " liable to be imprisoned and kept 
 " to hard labour in the common 
 " gaol or house of correction for 
 " any term not exceeding three 
 " months : provided that no person 
 " who shall be punished for any such 
 " ofTence by reason of this section 
 " shall be punished for the same of- 
 " fence by virtue of any other law 
 " whatsoever." 
 
 6. On Obstructing Sale of Grain, or 
 
 its Free Passage. 
 
 By 24 & 25 Vict. c. 100, s. 39, 
 " whosoever shall beat or use any 
 " violence' or threat of violence to 
 " any person, with intent to deter 
 " or hinder him from buying, sell- 
 " ing or otherwise disposing of, or 
 " to compel him to buy, sell or oth- 
 
 erwise dispose of any wheat or 
 other grain, flour, meal, malt or 
 potatoes, in any market or other 
 place, or shall beat or use any 
 such violence or threat to any 
 person having the care or charge 
 of any wheat or other grain, flour, 
 meal, malt or potatoes, whilst on 
 the way to or from any city, 
 market town or other place, with 
 intent to stop the conveyance of 
 the same, shall, on conviction 
 thereof before two justices of the 
 peace, be liable to be imprisoned 
 and kept to hard labour in the 
 common gaol or house of correc- 
 tion for any term not exceedii^ 
 three months: provided that no 
 person who shall be punished for 
 any such offence by virtue of this 
 section shall be punished for the 
 same ofience by virtue of any 
 other law whatsoever." 
 
 7. Arising from Trade Oombinations 
 
 or Conspiracies. 
 
 By 24 & 25 Vict. c. 100, s. 41, 
 " whosoever, in pursuance of any 
 " unlawful combination or conspir- 
 " acy to raise the rate of wages, or 
 " of any unlawful combination or 
 " conspiracy respecting any trade, 
 " business or manufactm'e, or re- 
 " specting any person concerned or 
 " employed therein, shall unlawfully 
 " assault any person, shall be guilty 
 " of a misdemeanor, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " imprisoned for any term not ex- 
 " ceeding two years, with or with- 
 " out hard labour." {Former pro- 
 vision, 9 Geo. 4, c. 31, s. 25.) 
 
 8. Occasioning actual Bodily Harm. 
 By 24 & 25 Vict. c. 100, s. 47, 
 
 " whosoever shall be convicted up- 
 " on an indictment of any assault oc- 
 " casioning actual bodily harm, shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for the term of five vears (27 
 " & 28 Vict. c. 47), or to be impris- 
 " oned for any term not exceeding 
 
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INDICTMENT .AND EVIDENCE. 
 
 53 
 
 " two years, -witli or without hard 
 " labour." [Former provision, 14 
 & 15 Vict. c. 100, s. 29, repealed hi 
 24 & 25 Vict. 0. 95.) 
 
 Upon a count for assaulting, beat- 
 ing, wounding and occasioning ac- 
 tual bodily harm, against the stat- 
 ute, a prisoner may be convicted of 
 a common assault. Reg. v. Oliver, 
 Bell, C. C. 287; 8 Cox, C. C. 384; 
 30 L. J., M. C. 12 ; 6 Jur., N. S. 
 1214 ; 9 W. R. 60 ; 3 L. T., N. S. 
 311. 
 
 A. was indicted for an assault, 
 and for having thereby unlawfully 
 and maliciously inflicted grievous 
 bodily harm. There was a count 
 for a common assault. The injuries 
 inflicted were sufficient to amount 
 to grievous bodily harm, and the 
 jury was so told; but they returned 
 as their verdict : " We find the pris- 
 oner guilty of an aggravated as- 
 sault, but without premeditation ; 
 it was done under the influence of 
 passion : " — Held, that the verdict 
 was rightly entered upon the Count 
 charging the infliction of grievous 
 bodily harm. Reg. v. Sparrow, 8 
 Cox, C. C. 393 ; Bell, C. C. 298 ; 6 
 Jur., N. S. 1122 ; 30' L. J., M. C. 
 43 ; 9 W. R. 58 ; 3 L. T., N. S. 
 445. 
 
 Upon an indictment containing a 
 count for an assault occasioning ac- 
 tual bodily harm, under 14 & 15 
 Vict. c. 100, s. 29, the jury might re- 
 turn a verdict of guilty of a common 
 assault merely. Where the judge 
 decUned to receive such a verdict 
 as illegal, and the jury thereupon 
 found a general verdict of guilty, 
 the court awarded a venire de novo. 
 Reg. V. Teadon, L. &. C. 81 ; 9 Cox, 
 C. C. 91 ; 31 L. J., M. C. 70 ; 7 Jur., 
 N. S. 1128 ; 10 W. R. 64; 5 L. T., 
 N. S. 329. 
 
 9. Indictment and Evidence. 
 
 An indictment for an assault, 
 false imprisonment and rescue, stat- 
 ed that the judges of the court of 
 record of the town and coimty of P. 
 issued their writ, directed to_T. B., 
 
 one of the Serjeants at mace to the 
 said town and county to arrest W., 
 by virtue of which T. B. was pro- 
 ceeding to arrest W., within the ju- 
 risdiction of the court, but that the 
 defendant assaulted T. B. in the due 
 execution of his office, and prevent- 
 ed the arrest : — Held that such in- 
 dictment was bad, it not appearing 
 that T. B. was an officer of the court; 
 and that there could not be judg- 
 ment after a general verdict on such 
 a count as for a common assault and 
 false imprisonment, becg,use the ju- 
 ry must be taken to have found that 
 the assault and imprisonment were 
 for the cause therein stated, which 
 cause appears to have been that the 
 officer was attemjjting to make an 
 illegal arrest of another, which be- 
 ing a breach of the peace, the de- 
 fendant might, for aught that ap- 
 peared, have lawfully interfered to 
 prevent it. Rex v. Osmer, 5 East, 
 304; 1 Smith, 555. 
 
 An indictment against two for an 
 assault on two, is bad. Anon., Lofit, 
 271. And see Rex v. Benfield, 2 
 Burr. 983. 
 
 A count for night-poaching may 
 be joined with a count on 9 Geo. 4, 
 c. 69, s. 2, for assaulting a game- 
 keeper authorized to apprehend, and 
 with counts for assaulting a game- 
 keeper in the execution of his duty, 
 and for a common assault. Rex v. 
 Finacane, 5 C. & P. 551 — Parke. 
 
 An indictment charging that the 
 defendant made an assault upon 
 Henry B. B., and him the said Wil- 
 liam 13. B., did beat, wound and iil- 
 treat, is good, in arrest of judgment. 
 Reg. V. Crespin, 11 Q. B. 913; 12 
 Jur. 433 ; 17 L. J., M. C. 128. 
 
 Where a defendant has pleaded 
 guilty to an indictment for an as- 
 sault, the record is evidence against 
 him in an action for the same assault. 
 Reg. V. Fontaine Moreau, 12 Jur. 
 626; 17 L. J., Q. B. 187; 11 Q. B. 
 1033— Denman. 
 
 On an indictment for an assault 
 on A. B., it is sufficient to prove 
 that an assault was committed on a 
 
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54 
 
 ASSAULT AND BATTERY. 
 
 person bearing that name, although 
 two persons bore the same name, 
 viz. A. B. the elder, and A. B. the 
 younger, and the assault had been 
 committed on the latter only. Rex 
 V. Peace, 3 B. & A. 579. 
 
 10. Punishment. 
 
 By 24 & 25 Vict. c. 100, s. 47, 
 " whosoever shall be convicted upon 
 " an indictment for a common as- 
 " sault, shall be liable, at the dis- 
 " cretion of the court, to be impris- 
 " oned for any term not exceeding 
 " one year, with or without hard la- 
 " bour. 
 
 11. Costs of Prosecution. 
 
 By 24 & 25 Vict. c. 100, s. 74, 
 " where any person shall be convict- 
 " ed on any indictment of any as- 
 " sault, whether with or without bat- 
 " tery and wounding, or either of 
 " them, such person may.if the court 
 " think fit, in addition to any sen- 
 " tence which the'' court may deem 
 " proper for the offence, be adjudged 
 " to pay to the prosecutor his actual 
 " and necessary costs and expenses 
 " of the prosecution, and such mod- 
 " erate allowance for the loss of 
 " time as the court shall by aiSda- 
 " vit, or other inquiry and examina- 
 " tion, ascertain to be reasonable ; 
 " and, unless the sum so awarded 
 ■' shall be sooner paid, the oifender 
 " shall be imprisoned for any term 
 " the court shall award not exceed- 
 " ing three months, in addition to 
 " the term of imprisonment, if any, 
 " to which the offender may be sen- 
 " tenced for the offence." 
 
 By s. 75, " the court may, by 
 " warrant under hand and seal, or- 
 " der such sum as shall be so award- • 
 " ed to be levied by distress and 
 " sale of the goods and chattels of 
 " the offender, and paid to the pros- 
 " ecutor, and that the surplus, if 
 " any, arising from such sale, shall 
 " be paid to the owner; and in case 
 " such sum shall be so levied, the 
 " imprisonment awarded until pay- 
 
 " ment of such sum shall thereupon 
 " cease." 
 
 A conviction of a defendant 
 for unlawfully wounding, and his 
 being sentenced therefore to a 
 term of imprisonment, and to pay a 
 sum of money to the prosecutor of 
 the indictment, for his necessary 
 costs of the prosecution, and a mod- 
 erate allowance for his loss of time, 
 pursuant to 24 & 25 Vict. c. 100, s. 
 74, form no bar to his subsequently 
 suing the defendant for the same as- 
 sault, and recovering damages for 
 his bodily suffering and medical ex- 
 penses occasioned thereby. Lowe 
 V. Horwarth, 13 L. T., N. S. 297— 
 Exch. 
 
 12. Summary Convictions. 
 
 (a) Statute. 
 
 By 24 & 25 Vict. c. 100, s. 42, 
 " where any person shall unlawfully 
 " assault or beat any other person, 
 " two justices of the peace, upon 
 " complaint by or on behalf of the 
 " party aggrieved, may hear and 
 " determine such offence, and the 
 " offender shall, upon conviction 
 " thereof before them, at the discre- 
 " tion of the justices, either be com- 
 "mitted to the common gaol or 
 "house of correction, there to be 
 " imprisoned, with or without hard 
 " labour, for any term not exceed- 
 " ing two months, or else shall for- 
 "feit and pay such fine as shall 
 " appear to them to be meet, not 
 " exceeding together with costs (if 
 " ordered), the sum of bl; and if 
 " such fine as shall be so awarded, to- 
 " gether with the costs (if ordered), 
 " shall not be paid, either immedi- 
 " ately after the conviction or with- 
 " in such period as the said justices 
 " shall at the time of the conviction 
 " appoint, they may commit the of- 
 " fender to the common gaol or 
 "house of correction, there to be 
 " imprisoned, with or without hard 
 " labour, for any term not exceeding 
 " two months, unless such fine and 
 " costs be sooner paid." {Former 
 
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SUMMARY CONVICTIONS. 
 
 55 
 
 provision, 9 Geo. 4, c. 31, s. 27, re- 
 pealed by2i &25 Vict. c. 95.) 
 
 By s. 43, " when any person shall 
 " he charged before two justices of 
 " the peace with an assault or bat- 
 " tery upon any male child whose 
 " age shall not in the opinion of 
 " such justices exceed fourteen years, 
 " or upon any female, either upon 
 " the complaint of the party ag- 
 " grieved or otherwise, the said jus- 
 " tices, if the assault or battery is of 
 " such an aggravated nature that it 
 " cannot in their opinion be suffi- 
 " ciently punished under the provis- 
 " ions hereinbefore contained as to 
 " common assaults and batteries, 
 " may proceed to hear and determ- 
 " ine the same in a summary 
 " way, and, if the same be proved, 
 " may convict the person accused ; 
 " and every such offender shall be 
 " liable to be imprisoned in the 
 " common gaol or house of correc- 
 " tion, with or without hard labour, 
 " for any period not exceeding six 
 " months, or to pay a fine not ex- 
 " ceeding (together with costs) the 
 " sum of 20?., and in default of pay- 
 " ment to be imprisoned in the com- 
 " mon gaol or house of correction 
 " for any period not exceeding six 
 " months, unless such fine and costs 
 " be sooner paid, and, if the justices 
 " shall so think fit, in any of the 
 " said cases, shall be bound to keep 
 " the peace and be of good behav- 
 " iour for any period not exceeding 
 " six months from the expiration of 
 " such sentence." (Former provis- 
 ion, 16 & 17 Vict. c. 30, s. 1.) 
 
 By s. 44, " if the justices, upon 
 " the hearing of any such case of 
 " assault or battery upon the merits, 
 " where the complaint was prefer- 
 " red by or on behalf of the party 
 " aggrieved, under either of the last 
 " two preceding sections, shall deem 
 "the oifence not to be proved, or 
 "shall find the assault or battery 
 " to have been justified, or so tri- 
 " fling as not to merit any punish- 
 " ment, and shall accordingly dis- 
 " miss the complaint, they shall 
 
 " forthwith make out a certificate 
 " under their hands stating the fact 
 " of such dismissal, and shall deliver 
 "such certificate to the party against 
 "whom the complaint was pre- 
 " ferred." (Former provision, 9 Geo. 
 4, c. 31,s. 27.) 
 
 By s. 45, " if any person against 
 " whom any such complaint as in 
 " either of the last three preceding 
 " sections mentioned shall have been 
 " preferred by or on behalf of the 
 " party aggrieved, shall have ob- 
 " tained such certificate, or hav- 
 " ing been convicted, shall have 
 " paid the whole amount adjudged 
 " to be paid, or shall have suffered 
 " the imprisonment, or imprison- 
 " ment with hard labour awarded, 
 " in every such case he shall be re- 
 " leased from all further or other 
 " proceedings, civil or criminal, for 
 " the same cause." (Former pro- 
 vision, 9 Geo. 4, c. 31, s. 28.) 
 
 By s. 46, " provided, that in case 
 " the justices shall find the assault 
 " or battery complained of to have 
 " been accompanied by any attempt 
 " to commit felony, or shall be of 
 " opinion that the same is, from any 
 " other circumstance, a fit subject for 
 " a prosecution by indictment, they 
 " shall abstain from any adjudica- 
 " tion thereupon, and shall deal with 
 " the same in all respects in the same 
 " manner as if they had no author- 
 " ity finally to hear and determine 
 " the same : provided also, that noth- 
 " ing herein contained shall author- 
 " ize any justices to hear and determ- 
 " ine any case of assault or battery 
 " in which any question shall arise 
 " as to the title to any lands, tene- 
 " ments or hereditaments, or any 
 " interest therein or accruing there- 
 " from, or as to any bankruptcy or 
 " insolvency, or any execution un- 
 " der the process of any court of 
 "justice." (Former provision, 9 
 Geo. 4, c. 31, s. 22.) 
 
 A previous summary conviction 
 for an assault under 24 & 25 Vict. 
 c. 100, s. 45, is not a bar to an in- 
 dictment for manslaughter of the 
 
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56 
 
 ASSAULT AND BATTERY. 
 
 party assaulted, founded upon the 
 same facts. Reg. v. Morris, 10 Cox, 
 CO. 480: IL. R.,C.C. 90; 36 L. 
 J.,M. C. 84; 16L.T.,N.S. 636; 
 15 W. R. 990. 
 
 (b) Complainant or Informant. 
 
 An information made before a 
 magistrate stated that therinform- 
 ant, having been assaulted and 
 beaten by another person, prayed 
 that he might be bound over to 
 keep the peace towards him: On 
 the magistrates before whom the 
 case was heard proceeding to deal 
 with the merits of the question of 
 the assault, the informant protested 
 against their adjudicating upon it : 
 — Held, that the justices had no ju- 
 risdiction to convict summarily the 
 offending party of the assault against 
 the will of the informant, as under 
 9 Geo. 4, c. 31, s. 27, the justices 
 had no jurisdiction to convict of an 
 assault unless the party aggrieved 
 complained of that assault before 
 them with a view to their adjudi- 
 cating upon it. Heg. v. Deny or 
 Totness {Justices), 2 L. M. & P. 230; 
 15 Jur. 227; 20 L. J., M. C. 189— 
 
 B. C— Erie. 
 
 (c) Hearing and Certificate. 
 
 A party having been summoned 
 before two justices under 9 Geo. 4, 
 c. 31, s. 27, for an assault, and hav- 
 ing appeared and pleaded not guilty, 
 the complainant declined to proceed, 
 stating that he meant to bring an 
 action. The justices thereupon dis- 
 missed the complaint, and gave the 
 defendant a certificate as follows : 
 — " We deemed the offence not 
 proved, inasmuch as the complain- 
 ant did not offer any evidence in 
 support of the information, and hav- 
 ing accordingly dismissed the com- 
 plaint " : — ^Held, that what passed 
 before the justices Constituted a 
 hearing, and that the certificate 
 was a complete bar to an action for 
 the assault. Tunnicliffe v. Tedd, 5 
 
 C. B. 553 ; 17 L. J., M. C. 67. 
 
 A., having laid an information 
 
 against B. for an assault, under 9 
 Geo. 4, c. 31, took out a summons, 
 which was served on B., but before 
 the day fixed for the hearing, gave 
 notice to B. that the summons was 
 withdrawn, and also to the magis- 
 trate's clerk that he. A., should at- 
 tend not on the day. B., however, 
 attended on the day, and claimed, 
 in the absence of the complainant, 
 to have the charge dismissed, and 
 to have granted a certificate of dis- 
 missal, pursuant to the statute. The 
 justices dismissed the charge, and 
 granted a certificate, which stated 
 the above facts : — Held, that what 
 was done amounted to a hearing 
 within 9 Geo. 4, c. 31, s. 27, and 
 that the certificate accordingly was 
 a bar to an action for the same as- 
 sault. Vaughton v. Bradshaw, 9 C. 
 B., K S. 103 ; 7 Jur., N. S. 468 ; 
 30 L. J., C. P. 93 : 9 W. R. 120 ; 3 
 L. T., N. S. 373. 
 
 Where under 9 Geo. 4, c. 31, ss. 
 27-29, a complaint of assault or 
 battery has been made to two jus- 
 tices of the peace, who dismissed the 
 complaint and gave the party a cer- 
 tificate accordingly, the certificate 
 may be pleaded in bar to an indict- 
 ment founded on the same facts, 
 charging assault and battery, ac- 
 companied by malicious cutting and 
 wounding, so as to cause grievous or 
 actual bodily harm. Reg. v. Elring- 
 ton, 1 B. & S. 688 ; 9 Cox, C. C. 86 ; 
 8 Jur., N. S. 97 ; 31 L. J., M. C. 14; 
 10 W. R. 13 ; 5 L. T., N. S. 284. 
 
 The granting a certificate of dis- 
 missal of the complaint is, when a 
 case is brought within sect. 27 of 
 the 9 Geo. 4, c. 31, a ministerial, 
 not a judical act, and a magistrate 
 is therefore bound to grant it. ffan- 
 coch V. Somes, 1 El. & El. 795 ; 5 
 Jur., N. S. 983 ; 28 L. J., M. C. 
 196. 
 
 The certificate, if drawn up forth- 
 with and delivered to the party 
 againstwhom the complaint is pre- 
 ferred, is a good bar to a subsequent 
 action for the assault, though not 
 drawn up in the presence of the 
 
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UPON WOMEN AND CHILDREN." 
 
 57 
 
 parties, or applied for by the party 
 against whom the complaint was 
 preferred. Ih. 
 
 A certificate applied for by the 
 party entitled, five days after a com- 
 plaint had been dismissed, and 
 granted two days after the applica- 
 tion, but dated as of the day upon 
 which the complaint was made, is 
 made out forthwith, and is a good 
 defence to a subsequent action for 
 the same assault. Goslar v. Hether- 
 ington, 1 El. & El. 802 ; 5 Jur., N. 
 S. 885 ; 28 L. J., M. C. 198. 
 
 To an action for an assault, the 
 defendant pleaded that he had been 
 summoned by the plaintiff before a 
 magistrate, who convicted him in 
 the costs of the complainant and 
 hearing, which he had paid. At the 
 trial the magistrate's clerk produc- 
 ed his note-book, by which it ap- 
 peared that the magistrate had 
 merely ordered the defendant to 
 enter into his recognizances, and 
 pay the expense thereof; the clerk 
 also said in such cases no conviction 
 was ever drawn up : — Held, that 
 the plea was bad, and did not dis- 
 close a defence under 24 & 25 Vict. 
 c. 100, s. 45 ; that it was not prov- 
 ed ; and that, even if there was a 
 conviction, the proper proof was not 
 adduced. Hartley v. Hind/marsh, 1 
 L. R., C. P. 553 ; 12 Jur., N. S. 502 ; 
 1 H. & R. 607 ; 35 L. J., M. C. 255 ; 
 14W. R. 862. 
 
 If a party is charged before two 
 magistrates with an assault, and 
 they dismiss the complaint-, giving 
 him a certificate, he cannot avail 
 himself of this certificate as a de- 
 fence to an action for the same as- 
 sault, unless it is specially pleaded. 
 Harding v. King, 6 C. & P. 427— 
 Gumey. 
 
 To an action of assault and 
 battery, a certificate, under 24 &, 
 25 Vict. c. 94, s. 44, may be pleaded, 
 together with a plea that the assault 
 was committed in order to prevent 
 a breach of the peace. Lawler v. 
 KeUy, 15 Ir. C. L. R., App. 1. 
 
 When an assault charged in an 
 
 indictment and that referred to in 
 a certificate of dismissal by a mag- 
 istrate appear to have been on the 
 same day, it is prim§, facie evidence 
 that they are one and the same as- 
 sault, and it is incumbent on the 
 prosecutor to shew that there was 
 a second assault on the same day, 
 if he alleges that such is the case. 
 Reg. V. Fes%, 11 Cox, C. C. 139— 
 Russell Gumey. 
 
 The appearance of the defendant 
 before the magistrate, the recital in 
 the certificate of the fact of a com- 
 plaint having been made, and of a 
 summons having been issued, are 
 suflicient evidence of those facts. 
 II. 
 
 (d) Aggravated upon Women and 
 Children. 
 
 The 16 & 17 Vict. o. 30, s. 1, gave 
 jurisdiction to two justices of the 
 peace sitting at a place where petty 
 sessions are usually held to convict 
 persons of certain assaults, and a 
 warrant of commitment in the gen- 
 eral form provided by the 11 & 12 
 Vict. c. 43, Schedule (P.), was suffi- 
 cient, without any allegation that 
 the convicting justices were sitting 
 at a place where petty sessions are 
 usually held. Allison, Ex parte, 10 
 Exch. 561 ; 24 L. J., M. C. 73. 
 
 An information was laid against 
 a mail for assaulting and abusing a 
 woman. On the hearing before the 
 magistrates, she gave evidence tend- 
 ing to shew that the man had com- 
 mitted a rape on her. The magis- 
 trates convicted him of an aggra- 
 vated assault, under 1 6 & 17 Vict, 
 c. 30. The conviction recited the 
 information, and found the assault 
 proved, and sentenced him, for his 
 ofience, to be imprisoned in the 
 house of correction for six calendar 
 months : — Held, that the conviction 
 for the minor offence was good. 
 Thompson, Ex parte, 6 Jur., N. S. 
 1247— Q. B.: S. P., Wilkinson v. 
 Button, 3 B. & S. 821 ; 32 L. J., 
 M. C. 152. 
 
 An information before justices 
 
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58 
 
 ASSAULT AND BATTERY. 
 
 charged the defendant with having 
 unlawfully assaulted and abused a 
 female. She and the defendant 
 were each represented by attorneys, 
 and at the hearing, while the attor- 
 ney for the woman was opening his 
 case, the attorney for the defendant 
 objected that the facts he had stat- 
 ed constituted a case of rape, and 
 that the justices had no jurisdiction. 
 It was then suggested that the case 
 should be treated as a charge of an 
 aggravated assault. The case pro- 
 ceeded, and the defendant was con- 
 victed of an aggravated assault. It 
 appeared by affidavits upon an ap- 
 plication for a habeas corpus, with 
 a view to the discharge of the de- 
 fendant, that the evidence of the 
 woman was to the effect that the 
 defendant had ravished her : — Held, 
 per Pollock, C. B., and Wilde, B., 
 that the charge was one over which 
 the j ustices had no jurisdiction ; and 
 that it was competent for the court 
 to look at the evidence with a view 
 to see whether, in point of fact, the 
 case was within the jurisdiction of 
 justices. Thompson, In re, 30 L. J., 
 M. C. 19 ; 6 H. & N. 193 ; 9 W. 
 R. 203 ; 9 Cox, C. C. 70;. 3 L. T., 
 N. S. 409 ; 7 Jur., N. S. 48. 
 
 Held, per Bramwell, B., and Chan- 
 nell, B., that the charge did not im- 
 ply more than a common assault, 
 that the justices had jurisdiction, 
 and that the court could not review 
 the decision of the justices upon the 
 fact. Tb. 
 
 (e) Amounting to Felony. 
 
 A party was convicted summarily 
 by two justices for an assault. The 
 act appeared to have been done with 
 intent to commit an unnatural of- 
 fence, but not to have been attend- 
 ed with violence. A certiorari was 
 moved for, on the ground that the 
 offence, if committed, was within 
 9 Geo. 4, c. 31, s. 29, which pre- 
 vents justices from convicting where 
 an attempt to commit felony ap- 
 pears. The court refused to inter- 
 fere, as no excess of jurisdiction ap- 
 
 peared on the face of the conviction, 
 and the evidence, of which the mag- 
 istrates were the judges, did not 
 clearly shew an intention to com- 
 mit felony. Anon., 1 B. & Ad. 
 382. 
 
 (f) Fines. 
 
 Before 24 ^ 25 Vict. c. 100, s. 42.] 
 — By 9 Geo. 4, c. 31, s. 27, power 
 was given to two justices, in cases 
 of assault, to impose upon the of- 
 fender a fine not exceeding 51., "to 
 be paid to some one of the over- 
 seers of the poor, or to some other 
 ofiicer of the parish, township, or 
 place in which the offence shall 
 have been committed, to be by such 
 overseer or officer paid over to 
 the use of the general rate of the 
 county, riding, or division in which 
 the parish, township, or place shall 
 be situate ;" and s. 35 provided that 
 the conviction might be dra-mi up 
 in a given form, or in any other form 
 of words to the same effect : — Held, 
 that a conviction by which the pen- 
 alty was ordered to be paid " to the 
 treasurer of the county of C, in 
 which the offence was committed, 
 to be by him applied according to 
 the directions of the statute," or the 
 party in default to be imprisoned 
 for two months, was bad, and that 
 the justices were liable in trespass 
 for the imprisonment of the party 
 under it. Ghaddock v. Wilbraham, 5 
 0. B. 645 ; 3 New Sess. Cas. 227 ; 
 12 Jur. 136 ; 17 L. J., M. C. 79. 
 
 A. was summoned under 9 Geo. 
 4, c. 31, ss. 27, 33, for an assault. 
 He did not appear, and the justices, 
 upon proof of service, heard the case 
 and convicted A. The conviction 
 was drawn up in the form given in 
 sect. 35, and by it A. was adjudged 
 to forfeit and pay 21. 10s. and lis. 
 6d for costs ; and, in default of im- 
 mediate payment, to be imprisoned 
 for six weeks, unless the sum should 
 be sooner paid ; and the conviction 
 directed that the 21. 10s. should be 
 paid to one of the overseers of the 
 parish within which the offence 
 
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BIGAMY— THE OFFENCE. 
 
 59 
 
 was committed, and the lis. &d. to 
 the party aggrieved. And directly 
 thereafter, no payment being made, 
 the justices, in the absence of A., 
 and without further summons, issu- 
 ed a warrant of commitment for 
 default of payment : — Held, that 
 the commitment was legal. Arnold 
 V. Dimsdale, 2 El. & Bl. 580 ; 17 
 Jur. 1157; 22 L. J., M. C. 161. 
 
 Vn. Bigamy. 
 
 1. The Offence, 59. 
 
 2. On Absence or Death of Parties, 
 
 3. Where Triable, 64. ' [62. 
 
 4. Indictment, 64. 
 
 5. Evidence and Witnesses, 65. 
 
 1. The Offence. 
 
 The Stame.y-Bj 24 & 25 Vict. 
 c. 100, s. 57, " whosoever, being 
 " married, shall marry any other 
 " person during the life of the form- 
 " er husband or wife. Whether the 
 " second marriage shall have taken 
 " place in England or Ireland or 
 " elsewhere, shall be guilty of felony, 
 " and, being convicted thereof, shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for any term, not exceeding 
 " seven years and not less than five 
 " years (27 & 28 Vict. c. 47) ; or 
 " to be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour ;" 
 
 " And any such offence may be 
 " dealt with, inquired of, tried, de- 
 " termined, and punished in any 
 " county or place in England or Ire- 
 " land where the offender shall be 
 " apprehended or be in custody, in 
 " the same manner in all respects as 
 "if the offence had been actually 
 " committed in that county or 
 "place;" 
 
 "Provided that nothing in this 
 " section contained shall extend to 
 " any second marriage contracted 
 " elsewhere than in England and 
 " Ireland by any other than a sub- 
 " ject of her Majesty, or to any per- 
 " son marrying a second time whose 
 
 " husband or wife shall have been 
 " continually absent from such per- 
 " son for the space of seven years 
 " then last past, and shall not have 
 " been known by such person to be 
 " living within that time, or shall 
 " extend to any person who, at the 
 " time of such second maiTiage, 
 " shall have been divorced from the 
 " bond of the iirst marriage, or to 
 " any person whose former marriage 
 " shall have been declared void by 
 " the sentence of any court of com- 
 " petent jurisdiction." [Similar to 
 9 Geo. 4, c. 31,s. 22.) 
 
 By 9 Geo. 4, c. 31, 1 Jac. 1, c. 11, 
 35 Geo. 3, c. 67 ; and so much of 4 
 Edw. 1, s. 3, 18 Edw. 3, s. 3, and 1 
 Edw. 6, c. 12, as related to this sub- 
 ject, were repealed. By 2A: & 25 
 Vict. c. 95, the 9 Geo. 4, c. 31, s. 
 22, is repealed. 
 
 In respect of what marriages.^ — 
 After a marriage contracted in Eng- 
 land, the parties lyent to reside m 
 Scotland, where they were divorc- 
 ed by reason of adultery by the husr 
 band — he then married again in 
 England, and on a trial for bigamy, 
 was found guilty, notwithstanding 
 the Scotch sentence of divorce. Ld- 
 ley's case, 2 C. & F. 567, n. ; R. & 
 R. C. C. 237. 
 
 Semble, that assuming a fictitious 
 name upon the second marriage will 
 not prevent the offence from being 
 complete. Rex v. Allison, R. & R. 
 C. C. 109. 
 
 And if the prisoner has written 
 down the names for the publication 
 of the banns, he is precluded from 
 saying that the woman was not 
 known by the name he delivered 
 in, and that she was not rightly de- 
 scribed by that name in the indict- 
 ment. Hex V. Edwards, R. & R. 
 C. C. 283. 
 
 On an indictment against a man 
 for bigamy, it appeared, that for 
 the purpose of concealment, the sec- 
 ond wife was married by a name by 
 which she had never been known : 
 — Held, that this was no answer to 
 
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60 
 
 BIGAMY. 
 
 the charge, although, if the first 
 marriage had taken place under 
 such circumstances, that would have 
 been thereby rendered void. Bex 
 V. Fenson, 5 C. & P. 412 — Gumey. 
 
 If the first marriage was by 
 banns, it is no objection that the 
 parties did not reside in the parish 
 where the banns were published, 
 and the marriage celebrated. Hex 
 V. Hind, R. & R. C. C. 253. 
 
 In the publication of banns in 
 1817, a woman named Mary Hodg- 
 Idnson was called White, a surname 
 entered by mistake in the register 
 of her baptism, but which she had 
 never gone by or been entitled to. 
 The false name was given to the 
 ofiiciating clergyman without any 
 intention to mislead; nor did any 
 individual having any interest in 
 the marriage appear to have been 
 deceived : — Held, that the marriage 
 was void. It might have been 
 otherwise, if (without any fraudu- 
 lent intent) there had been only a 
 partial variation of the name, or 
 the addition or suppression of one 
 christian name, or the name had 
 been one which the -party had ever 
 used or been Icnown by.. Sex v. 
 Tibshdf, 1 B. & Ad. 190. 
 
 To render a marriage invalid with- 
 in 4 Geo. 4, c. 76, s. 22, which en- 
 acts, "that if any person shall know- 
 ingly and wilfully intermarry with- 
 out the publication of banns, the 
 marriage of such persons shall be 
 null and void," it must be 'contract- 
 ed by both parties with a knowl- 
 edge that no due publication has 
 taken place ; and, therefore, where 
 the intended husband procured the 
 banns to be published in a christian 
 and surname which the woman had 
 never borne, but she did not know 
 that fact until after the solemniza- 
 tion of the marriage, the marriage 
 was valid. Hex v. Wroxton, 1 N". 
 & M. 712 ; 4 B. & Ad. 640. 
 
 A marriage, which would have 
 been void by 26 Geo. 2, c. 33, and 
 had once been rendered valid by 3 
 Geo. 4, c. 75, s. 2, cannot be subse- 
 
 quently rendered invalid by the 
 marriage of either of the parties, 
 during the Kfe of the other, with a 
 third person. Hex v. *Si!. John DeL 
 pihe, 2 B. & Ad. 226. 
 
 The 5 & 6 Will. 4, c. 54, renders 
 absolutely void all marriages sol- 
 emnized after the time of its pass- 
 ing between persons within the pro- 
 hibited degrees, and which were 
 previously voidable only by sen- 
 tence of the Ecclesiastical Court 
 pronounced during the life of both 
 parties. Reg. v. Qhadwick {in er- 
 ror), 11 Q. B. 173 ; 12 Jur. 174; 17 
 L. J., M. C. 33 ; 2 Cox, C. C. 381. 
 
 Therefore, a marriage with de- 
 ceased wife's sister contracted after 
 the passing of that act, is absolutely 
 void. Tb. 
 
 A., a married woman, in the life- 
 time of her husband, married B., 
 who was a widower, B. having been 
 the husband of A.'s deceased sister : 
 — Held, that this was bigamy in A., 
 and that the circumstance that the 
 marriage of A. and B. would have 
 been wholly void under 5 & 6 Will. 
 4, c. 54, s. 2, even if A. had been un- 
 married, made no difference. Reg. 
 V. Brawn, 1 C. & K. 144; 1 Cox, 
 C. C. 33— Denman. 
 
 Held, also, that if B. knew at the 
 time of his marriage with A. that 
 she was a married woman, he might 
 be convicted of the felony of coun- 
 selling A. to commit bigamy. Ih. 
 
 Minor s.^ — The marriage of a min- 
 or by licence without the consent 
 required by 4 Geo. 4, c. 75, s. 16, is 
 valid. Rex v. Birmingham, 2 M. 
 & R. 230 ; 8 B. & C. 20. So un- 
 der 6 & 7 Will. 4, c. 85, s. 25. 
 
 It is not necessary under a prose- 
 cution for bigamy for a subsequent 
 marriage of a minor, to prove the 
 consent of the parent to the first 
 marriage. Reg. v. Olark, 2 Cox, C, 
 C. 183— Rolfe. 
 
 Irish.]— &j 9 Geo. 2, c 11 {Irish), 
 the marriage of a minor without 
 consent is void ; but if no suit be 
 commenced within one year after 
 
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THE OFFENCE. 
 
 61 
 
 the marriage, it shall be good. 
 Therefore, wliere it appeared in a 
 case of- bigamy that the first mar- 
 riage was celel9rated in Ireland by 
 licence, when the prisoner was a 
 minor, without his father's consent : 
 — Held, that it was no defence, as 
 more than a year had elapsed from 
 the time of the marriage. Mex v. 
 Jacols, 1 M. C. C. 140. 
 
 But by 7 & 8 Vict. c. 81, s. 32, 
 proof of consent of parents or guar- 
 dians is unnecessary. 
 
 The marriage of a Protestant in 
 Ireland to a Roman Catholic, by a 
 Roman Catholic priest, is void by 
 19 Geo. 2, c. 33 {Irish). Sunder- 
 land's case, 2 Lewm, C. C. 109 — 
 Patteson. 
 
 In Ireland, the mamage of two 
 Roman Catholics by a Roman Cath- 
 olic priest is good ; and if a person 
 at the time of such marriage de- 
 clares himself to be a Roman Cath- 
 olic, and the woman is a Roman 
 Catholic, this is a good marriage as 
 against him ; and if he is afterwards 
 tried for bigamy on this marriage 
 (he having been before married to 
 another wife, who was still aUve), 
 he will not be allowed to set up his 
 supposed Protestantism as a defence 
 to the charge. Meg. v. Orgill, 9. C. 
 & P. 80— Alderson. 
 
 To prove a marriage of two Ro- 
 man Catholics in Ireland, evidence 
 was given that the Rev. W. O'S, 
 (who officiated) acted as a Roman 
 Catholic priest, and that the mar- 
 riage (as was usual) took place at 
 his house, and he asked the parties 
 if they were Roman Catholics, and 
 that they said they were so ; that 
 part of the ceremony was in Eng- 
 lish and part in Latin ; and that 
 having asked the man if he would 
 take the woman as his wife, and the 
 woman if she would take the man 
 as her husband, and each having 
 answered in the affirmative, he pro- 
 nounced them married : — Held, suf- 
 ficient. Ih. 
 
 A. was married to S., according 
 to the rites of the Established 
 
 Church, in 1858, and in April, 
 1865, during the life-time of S., 
 he was married to B. in a Ro- 
 man Catholic church, in Dub- 
 lin. C. knew A. six months pre- 
 viously to the marriage, and believ- 
 ed him to be a Roman Catholic. 
 He told B. that he was a Roman 
 Catholic. He had been bom and 
 reared a Protestant, and had attend- 
 ed the Protestant service on Christ- 
 mas morning, 1865. The jury found 
 that A. was a professing Protestant 
 within twelve months previously to 
 the marriage, and that he had held 
 himself out as a Roman Catholic to 
 the clergyman who married him, 
 and had told the woman he was a 
 Roman Catholic, and the jury con- 
 victed him of bigamy : — Held, that 
 he was wrongly convicted. Seg. 
 V. Fanning, 17 Ir. C. L. R. 289 ; 14 
 W. R. 701 ; 10 Cox, C. C. 411. 
 
 Scotch.] — For what is necessary 
 to constitute a vaM marriage in 
 Scotland, see Graham's case, 2 Lew- 
 in, C. C. 97 ; Dalrymple v. Dalrym- 
 ■pte, 2 Hagg. Cons. R. 54. 
 
 A., a subject of her Majesty, and 
 resident in England, was married 
 in Scotland, according to the law 
 of Scotland. He subsequently mar- 
 ried again in the same country, and, 
 according to the same law, his first 
 wife being aUve. Both wives, at 
 the time of their marriage, were 
 resident in England : — Held, that he 
 had committed an ofience against 9 
 Geo. 4, c. 31, s. 22. Reg. v. Tap- 
 ping, Dears. C. C. 647 ; 2 Jur., N. 
 S. 428 ; 25 L. J., M. C. 72 ; 7 Cox, 
 C. C. 103. 
 
 On a trial for bigamy a woman 
 was called as a witness, who stated 
 that she was present at a ceremony 
 performed in a private house in Scot- 
 land, by a minister of some religious 
 denomination ; that she herself was 
 married in the same way, and that 
 parties always married in Scotland 
 in private houses : — Held, that she 
 was not a competent witness to 
 prove the law of Scotland as to 
 
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62 
 
 BIGAMY. 
 
 marriage, and that her evidence 
 did not prove the fact of a mar- 
 riage. Reg. V. Povey, 6 Cox, C. C. 
 83 ; Dears. C. C. 32 ; 22 L. J., M. 
 C. 19. ■ 
 
 In what Ghapeh or Places.^ — 
 Where the first marriage was sol- 
 emnized in a chapel, it was neces- 
 sary to show either that the chapel 
 was one in which banns had been 
 usually published before 26 Geo. 3, 
 c. 33, or that the chapel was built 
 and consecrated after that act, and 
 before 6 Geo. 4, c. 92 ; and proof 
 that marriages have been solem- 
 nized there for the last twenty years 
 is not sufficient for this purpose. 
 Reg. V. Bowen, 2 C. & K. 227— 
 Piatt. ^ 
 
 The prisoner was convicted on an 
 indictment for bigamy. It was al- 
 leged tha,t the first marriage took 
 place in a dissenting chapel duly 
 licensed for marriages, and a wit- 
 ness was called who proved that he 
 was present at the marriage, that it 
 took place in the dissenting chapel 
 in the presence of the registrar, that 
 the entry of the marriage in the 
 registrar's book was signed by the 
 witness as a witness to the mar- 
 riage, and that the parties after- 
 wards Uved together as husband 
 and wife for some years: — Held, 
 first, that the parol testimony of tlie 
 witness sufficiently proved the fact 
 of marriage. Reg. v. Manwaring, 
 Dears. & B. C. C. 132 ; 2 Jur., N. 
 S. 1236 ; 26 L. J., M. CIO ; 7 Cox, 
 C. C. 192. 
 
 Held, secondly, that there was 
 prima facie evidence that the chapel 
 was duly registered, and was a place 
 in which marriages might legally 
 be solemnized. lb. 
 
 A witness produced a certificate, 
 under the hand of the superintend- 
 ent registrar, of the fact that the 
 chapel had been duly registered. 
 It did not purport to be a copy or 
 an extract, but the witness proved 
 that he had exammed it with the 
 register book at the office of the su- 
 
 perintendent registrar, and that it 
 was correct : — Held, that the docu- 
 ment was admissible as an exam- 
 ined copy or extract from the super- 
 intendent registrar's book, under 
 14 & 15 Vict. c. 99, s. 14, and was 
 therefore good evidence of the due 
 registration of the chapel. Ih, 
 
 Proof of a marriage before the 
 registrar, although in a chapel not 
 regularly licensed and registered, is 
 sufficient. Reg. v. Tilson, 1 F. & 
 F. 54— Wightinan. 
 
 Proof of a marriage in a chapel 
 in the presence of the registrar of 
 the district and two witnesses, is 
 sufficient without proving that the 
 chapel was registered. Reg. v. 
 Oradoch, 3 F. & F. 837— Willes. 
 
 Upon an indictment for bigamy, 
 it appeared that the prisoner was 
 married to his first wife in a place 
 which had been registered pursuant 
 to 6 & 7 Will. 4, c. 85. It was 
 proved that notice of the marriage 
 had been given to the superintend- 
 ent registrar ; but that notice was 
 not produced by him. The regis- 
 ters of the marriage and of the 
 building, were, however, produced 
 and read. It was objected that 
 there ought to have been further 
 evidence that due notice was given 
 to the superintendent registrar ; that 
 he issued his certificate thereon, and 
 that the marriage was celebrated in 
 the building specified in that notice 
 and certificate : — Held, that the ev- 
 idence given proved a sufficient 
 prima facie case, and that the con- 
 viction was right. Reg. v. Hawes, 
 2 Cox, C. C. 432 ; 1 Den. C. C. 270. 
 
 2. On Absence or Death of Parties. 
 Semble, that the construction of 
 9 Geo. 4, c. 31, s. 22, in relation to 
 the offence of bigamy, is this : not 
 that the party, charged to be de- 
 prived of the benefit of its provision 
 as a defence, must have known at 
 the time when he contracted the 
 second marriage that the first wife 
 had been alive during the seven 
 years preceding ; but that to bring 
 
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ABSENCE OR DEATH OF PARTIES. 
 
 63 
 
 him within that provision, he must 
 have been ignorant during the whole 
 of those seven years that she was 
 alive. Reg v. Oullen, 9 C. & P. 
 681— Patteson! 
 
 When the prisoner's first wife 
 had left him sixteen years, and it 
 was proved \>j the second wife that 
 she had known him for nine years 
 living as a single man, and that she 
 had never heard of the first wife, 
 who it appears had heen living sev- 
 enteen miles from where the prisoner 
 resided: — Held, that on this evi- 
 dence the prisoner ought to be ac- 
 quitted on the proviso contained in 
 9 Geo. 4, c. 31, s. 22. Beff. v. 
 Jones, Car. <fcM. 614 — Cresswell. 
 
 A woman was convicted on an 
 indictment for bigamy. It appear- 
 ed that her first husband had been 
 continually absent from her for sev- 
 en years next preceding the second 
 marriage; on which occasion she 
 represented herself as a single wo- 
 man, and was married by her maid- 
 en name. The jury being asked to 
 consider whether she knew her hus- 
 band to be alive at the time of the 
 second marriage ; and if not, wheth- 
 er she had the means of acquiring 
 the knowledge, found that they had 
 no evidence of her knowledge, but 
 the jury was of opinion that she had 
 the means of acqviiring knowledge 
 if she had chosen to make use of 
 them : — Held, that upon that find- 
 ing the conviction could not be sus- 
 tained. Reg. V. Briggs, Dears. & 
 B. C. C. 98; 2 Jur., N. S. 1195; 
 26 L. J., M. C. 7 ; 7 Cox, C. C. 
 175. 
 
 Whether evidence is necessary on 
 the part of the prosecution to shew 
 that the prisoner married, knowing 
 his second wife to be alive, depends 
 upon the particular fact of each case. 
 Reg. V. Mlis,l F. & F. 309— Willes. 
 
 It is a question for the jury 
 whether the prisoner knew that his 
 first wife was aUve. Reg. v. Bane, 
 1 F. & F. 323— Bramwell. 
 
 The burden of proof that a per- 
 son charged with bigamy has not 
 
 been continually absent from his 
 wife for seven years, and that she 
 was not known to him to be living 
 within that time, is on the prosecu- 
 tion and not on the prisoner, for 
 how can he prove a negative that 
 he did not know. Reg. v. Beaton, 
 3 F. & F. 819— Wightman. 
 
 When it is proved that the pris- 
 oner and his first wife have lived 
 apart for the seven years preceding 
 the second marriage, it is incumbent 
 on the prosecution to shew that dur- 
 ing that time he was aware of her 
 existence ; and, in absence of such 
 proof, he is entitled to be acquitted. 
 Reg. v. Gurgenwen, 10 Cox, C. 0. 
 152 ; 1 L. R., C. C. 1 ; 11 Jur., K 
 S. 984 ; 35 L. J., M. C. 58 ; 14 W. 
 R. 55 ; 13 L. T., N. S. 383. 
 
 Where no evidence was given on 
 either side as to his knowledge that 
 his wife was alive, but it was proved 
 that they had separated by agree- 
 ment in 1843, and in 1857 he pro- 
 duced her at a trial in which he 
 was interested : — Held, that it was 
 for the jury to say whether there 
 was an absence of knowledge on his 
 part that his wife was alive in 1855, 
 the date of the second marriage. 
 Reg. V. Gross, 1 F. &. F. 510— 
 Cockburn. 
 
 Evidence of the cohabitation of 
 the first husband with another wo- 
 man, his reputed wife, before the 
 time of his marriage with the ac- 
 cused, and of such reputed wife 
 being aUve after that marriage, is 
 sufficient evidence of a prior mar- 
 riage to warrant an acquittal. Reg. 
 V. Wilson, 3 F. & F. 119— Cromp- 
 ton. 
 
 Omis of Proof. 1 — On a trial 
 for bigamy, it was proved that 
 the prisoner mamed A. in 1836, 
 left him in 1843, and married 
 again in 1847. Nothing was heard 
 of A. after the prisoner left him, nor 
 was any evidence given of his age.: 
 — Held, that there was no presump- 
 tion of law, either in favor of or 
 against the continuance of A.'s life 
 
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64 
 
 BIGAMY. 
 
 up to 1847 ; but that it was a ques- 
 tion for the jury, as a matter of fact, 
 whether or not A. was alive at the 
 date of the second marriage in 1847. 
 Reg. V. Lumley, 1 L. R., C. C. 196; 
 11 Cox, G. C. 274; 17 W. R. 685; 
 38 L. J., M. C. 86 ; 20 L. T., N. S. 
 454. 
 
 In 1863 the prisoner married his 
 first wife, lived with her about a 
 week, and then left her. It was 
 not proved that he had since seen 
 her. In 1867 he married another 
 woman, his first wife being then 
 alive. On the trial of an indict- 
 ment for bigamy, the judge told 
 the jury that they must be satisfied 
 that the prisoner knew that his first 
 wife was alive at the time of the 
 second marriage : — Held, that the 
 direction was right, and that it was 
 not necessary to prove affirmatively 
 that at the time of the second mar- 
 riage he knew that his first wife 
 was alive. Reg. v. Jones, 21 L. T., 
 N". S. 396— C. C. R. 
 
 It is a good defence to an indict- 
 ment for bigamy that the prisoner 
 at the time of the second marriage, 
 honestly and bona fide believed 
 that his first wife was dead, and had 
 reasonable grounds for so believing. 
 Reg. V. Horton, 11 Cox, C. C. 670. 
 
 3. Where Triable. 
 
 By 24 & 25 Vict c. 100, s. 57, 
 " the ofience may be dealt with, in- 
 " quired of, tried, determined, and 
 " punished in any county or place 
 " in England or Ireland where the 
 " offender shall be apprehended or 
 " be in custody, in the same manner 
 " in all respects as if the oflfence had 
 "been actually committed in that 
 " county or place." {Former pro- 
 vision, 9 Geo. 4, c. 31, s. 22.) 
 
 Where a prisoner, having been 
 apprehended for larceny, was de- 
 tained in the same county for big- 
 amy, the detainer was such an ap- 
 prehension as would warrant the in- 
 dicting him in that county, under 1 
 
 Jac. 1, c. 11. Rex v. Gordon, R- 
 & R. C. C. 48. 
 
 An indictment for bigamy, com- 
 mitted in one county, found by a 
 jury of another wherfe the prisoner 
 was apprehended, must state that 
 fact. Rex v. Fraser, 1 M. C. C. 
 407." 
 
 But if an indictment for bigamy 
 is tried at the same assizes at which 
 the bill is found, it will sufficiently 
 appear "by the caption, that the 
 party is in custody in the county, so 
 as to give the court jurisdiction; 
 and there need not, in that case, be 
 any averment in the indictment as 
 to the custody. Reg. v. Whiley, 
 1 C. & K. 150 ; 2 M. C. A 186. 
 See Reg. v. Smyihies, 1 Den. C. C. 
 498 ; 2 C. & K. 878. 
 
 An indictment was allowed to be 
 amended as to the allegation of ap- 
 prehension in the county. Reg. v. 
 Smith, 1 F. & P. 36— Channell. 
 
 4. Indictment. 
 
 The second wife being described 
 as E. C, widow ; she was, in fact, 
 not a widow, nor had she ever been 
 represented or reputed to be so : — 
 was formerly a fatal variance, but 
 now amendable under 14 & 15 
 Vict. c. 100, s. 1. Rex v. Deeley, 4 
 C. & P. 579 ; 1 M. C. C. 303. 
 
 If there was a discrepancy be- 
 tween the christian name of the 
 prisoner's first wife as laid in the 
 indictment and as stated in the copy 
 of the certificate which was pro- 
 duced to prove the first marriage, 
 the prisoner must be acquitted, un- 
 less that discrepancy could be ex- 
 plained, or in the absence of such 
 proof, unless it could be shewn that 
 the first wife was known by both 
 names. Reg. v. Gooding, Car. & 
 M. 297— Maule. 
 
 In an indictment, it is sufficient to 
 aver the life of the first wife, with- 
 out going on to allege that the mar- 
 riage is still subsisting. Murray v. 
 Reg. (in error), 7 Q. B. 700 ; 9 Jur* 
 596 ; 14 L. J., Q. B. 357. 
 
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EVIDENCE AND WITNESSES. 
 
 65 
 
 5. Evidence and Witnesses. 
 
 "Where a first marriage was sol- 
 emnized under 6 & 7 Will. 4, c. 85, 
 the certificate authorized by that 
 act and 6 & 7 Will. 4, c. 86, s. 38, 
 coTipled with the identity of the 
 parties, is sufiicient j)rima facie evi- 
 dence of such marriage. Re§. v. 
 Hawes, 1 Den. C. C. 270 ; 2 Cox, 
 C. C. 432. 
 
 It is not necessary to put the 
 original register in evidence to 
 prove a marriage. Sayer v. Ghs- 
 sop, 2 Exch. 409 ; 2 C. & K. 694 ; 
 12 Jur. 465— Parke. 
 
 A photographic likeness of the 
 first husband allowed to be shewn 
 to the witnesses present at the first 
 marriage, in order to prove his 
 identity with the person mentioned 
 . in the marriage certificate. Beg. v. 
 Tolson, 4 F. & F. 103— Willes. 
 
 A prisoner's declarations, delib- 
 erately made, of a prior marriage 
 in a foreign country, are sufficient 
 evidence of such marriage, without 
 proving it to have been celebrated 
 according to the law of the country. 
 Beff. V. Newton, 2 M. & Rob. 503 ; 
 S. G., nom. Jie^. v. Simmonsto, 1 
 C. & K. 164— Wightman. • 
 
 Semble, that an acknowledgment 
 alone by the prisoner of the feet of 
 the first marriage would not be suf- 
 ficient evidence of that fact. Heg. 
 V. Trueman, 1 East, P. C. 470. 
 
 But proof of such an acknowl- 
 edgment, together with evidence of 
 cohabitation, and that the prisoner 
 backed his assertion by producing 
 to the witness a copy of a proceed- 
 ing in a Scotch court, for having 
 improperly contracted the marriage 
 (but which was a nullity), will be 
 sufficient evidence of the first mar- 
 riage. Ih. 
 
 There ought to be some proof of 
 the first marriage, beyond the mere 
 statement of the prisoner while in 
 
 Fish. Dig. — 5 
 
 custody; therefore, where a man 
 went to a police station, and stated 
 that he had committed bigamy, 
 and when and where the first mar- 
 riage took place, and while in cus- 
 tody signed a statement to the same 
 effect, the judge thoughtthis, though 
 some evidence of the first marriage, 
 was not sufficient, and so told the 
 jury. Reg. v. Flaherty, 2 C. & K. 
 782— Pollock. 
 
 On a trial for bigamy," a woman 
 was called as a witness, who stated 
 that she was present at a ceremony 
 performed at a private house in 
 Scotland by a minister of some re- 
 ligious denomination ; that she her- 
 self was married in the same way, 
 and that parties always married in 
 Scotland in private houses : — Held, 
 that she was not a competent wit- 
 ness to prove the law of Scotland 
 as to marriage, and that her evi- 
 dence did not prove the fact of a 
 marriage. JReg. v. Povey, Dears. 
 0. C. 32 ; 17 Jur. 120 ; 22 L. J., 
 M. C. 19 ; 6 Cox, C. C. 83. 
 
 A sentence of jactitation was not 
 conclusive evidence against an in- 
 dictment of bigamy ; for its validi- 
 ty might be impeached as having 
 been obtained by fraud. Duchess 
 of Kingston's case, 1 Leach, C. C. 
 146 ; 1 East, P. C. 468. 
 
 A reputed first wife cannot give 
 evidence in favour of her supposed 
 husband. Peat's case, 2 Lewin, C. 
 C. Ill — Alderson. 
 
 Quaere, whether a woman who 
 has gone through the ceremony of 
 marriage with a man can be al- 
 lowed to prove the invalidity of the 
 marriage, and that she is not his 
 wife ? Peafs case, 2 Lewin, C. C. 
 288. 
 
 Semble, that she may be exam- 
 ined upon the voir dire. lb.: S. P. 
 Hex V. Wahejield, 2 Lewin, C. C. 
 279— Hullock. 
 
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66 
 
 BURGLARY AND HOUSEBREAKING. 
 
 VIII. BtJKGLAEY AND HOUSE- 
 EEEAKING. 
 
 1. Statutes, 66. 
 
 2. Breaking and Entering, 67. 
 
 3. Breaking out, 68. 
 
 4. By Lodgers, 69. 
 
 5. What IS Night-time, 69. 
 
 6. What is a Dwelling-house, 69. 
 
 7. TFAaf !s no« a Vwelling-house, 71. 
 
 8. Breaking into Churches and Places 
 
 of Divine Worship, 72. 
 
 9. The Curtilage, 73. 
 
 10. Ownership, 74. 
 
 11. Intent, 75. [76. 
 
 1 2. Armed with Intent to break or enter, 
 
 13. Stealing in a Dwelling-house, 77. 
 
 14. In Schools, Shops, Warehouses or 
 
 Counting-houses, 78. 
 
 15. Parties Indictable, 79. 
 
 16. Indictment, 79. 
 
 17. Evidence and Trial, 81. 
 
 1. Statutes. 
 
 By 24 & 25 Vict. c. 96, s. 61, 
 " whosoever shall enter the dwell- 
 " 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 deemedr guilty of 
 " burglary." (Former provision, 7 
 " & 8 Geo. 4, c. 29, s. 11.) 
 
 By s. 1, " the night shall be 
 " deemed to commence at nine of 
 " the clock in the evening of each 
 " day, and to conclude at six of the 
 " clock in the morning of the next 
 " succeeding day. 
 
 By s. 52, "whosoever shall be 
 " convicted of the crime of burg- 
 " lary shall be liable, at_ the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for Ufe, or for any 
 " term not less than five years (27 
 " & 28 Vict. 0. 47), or to be im- 
 " prisoned for any term not exceed- 
 " ing two years, with or without 
 " hard labour, and with or without 
 " solitary confinement." 
 
 By s. 53, "no building, although 
 " within the same curtilage with 
 " any dwelling-house, and occupied 
 " therewith, ^all be deemed to be 
 
 " part of such dwelling-house for 
 " any of the purposes of the act, 
 " unless there shall be a communi- 
 " cation between such building and 
 " dwelling-house, either immediate 
 " or by means of a covered and in- 
 " closed passage leading from the 
 " one to the other." (Former pro- 
 vision, 7 & 8 Geo. 4, c. 29, s. 13.) 
 
 By s. 5,4, " whosoever shall enter 
 " any dwelling-house in the night 
 " with intent to commit any felony 
 " therein shall be guilty of felony, 
 " and being convicted thereof shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for any term not exceeding 
 " seven years and not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or 
 " without hard labour, and with or 
 " without solitary confinement." 
 
 By s. 55, "whosoever shall break 
 " and enter any building, and com- 
 " mit any felony therein, such build- 
 " ing being within the curtilage of 
 " a dwelling-house, and occupied 
 "therewith, but not being part 
 " thereof, according to the provis- 
 " ion hereinbefore mentioned, or 
 " being in any such building shall 
 " commit any felony therein, and 
 "break out of the same, shall be 
 " guilty of felony, and being con- 
 " victed thereof shall be liable, at 
 " the discretion of the court, to be 
 "kept in penal servitude for any 
 " term not exceeding fourteen years 
 " and not less than five years (27 & 
 "28 Vict. c. 47), or to be impris- 
 " oned for any term not exceeding 
 " two years, with or without hard 
 " labour, and with or without soli- 
 " tary confinement." {Former pro- 
 vision,! & 8 Geo. 4,c. 29, s. 14.) 
 
 By 7 & 8 Geo. 4, o. 27, 12 Anne, 
 s. 1, " was repealed, and so much of 
 " 18 Eliz. c. 7, as related to this 
 "subject; and 24 & 25 Vict. c. 
 " 95, repeals 7 & 8 Geo. 4,c. 29, s. 
 " 11, and 7 Will. 4 & 1 Vict. c. 
 " 86." 
 
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BREAKING AND ENTERING. 
 
 67 
 
 2. Breaking and Entering. 
 
 There must be both a breaking 
 and an entering to constitute a 
 burglary, and the breaking must be 
 such as will aiford the burglar an 
 opportunity of entering so as to 
 commit the intended felony. Rex 
 V. Hughes, 1 Leach, C. C. 406; 2 
 East, P. C. 491. 
 
 If there is an aperture in a cellar 
 window to admit light, through 
 which a thief enters in the night, 
 this is not burglary. Rex v. Lewis, 
 2 C. & P. 628— Vaughan. 
 
 Where a mill, under the same 
 roof and within the same curtilage 
 as a dwelling-house, had a trap- 
 door over a gateway, which was 
 only fastened by a lid-door kept 
 down by its own weight, without 
 bolts or other interior fastenings : — 
 Held, that an entry into the mill in 
 the night with intention to steal 
 flour by raising the lid-door amount- 
 ed to burglary. Rex v. Brown, 2 
 East, P. C. 487 ; 2 Leach, 0. C. 
 1016, n. 
 
 Though a thief enters a dwell- 
 ing-house at night through an open 
 door or a window, yet if, when with- 
 in, he breaks or opens an inner door 
 with intent to commit felony, it is 
 burglary. Rex v. Johnson, 2 East, 
 P. C. 488. 
 
 Introducing the hand between 
 the glass of an outer window and 
 an inner shutter is a suificient entry 
 to constitute burglary. Rex v. 
 Bailey, R. & R. C. C. 341. 
 
 It is not suflicient to constitute 
 the offence of burglary, that there 
 was an entry without a breaking of 
 the outer door, and a breaking 
 without an entry of an inner one. 
 Reg. V. Davis, 6 Cox, C. C. 369. 
 
 And it is a sufficient breaking to 
 constitute such an offence, if the 
 party breaks a pane of glass of a 
 window, and puts his hand in for 
 the purpose of opening the shutter, 
 although he did not succeed in do- 
 ing so. Rex V. Perhes, 1 C. & P. 
 300— Park. 
 
 Lifting the flap of a cellar usu- 
 
 ally kept down by its own weight, 
 is a sufficient breaking for the pur- 
 pose of burglary. Rex v. Russell, 
 1 M. C. C. 377. 
 
 A shutter -box partly projected 
 from a house, and adjoined the side 
 of the shop window, which was 
 projected by wooden panelling, 
 lined with iron :— Held, that the 
 brealdng and entering the shutter- 
 box did not constitute burglary. 
 Rex V. Paine, 7 C. & P. 135— 
 Denman, Park, BoUand. 
 
 A. was charged with breaking 
 Jinto the house of K. and stealing 
 the goods of M. It was proved as 
 to the breaking that the glass of 
 the window had been cut about a 
 month before, but that every por- 
 tion of the glass remained in its 
 place till he pushed it in, and stole 
 the goods — Held, a suflicient break- 
 ing. Reg. V. Bird, 9 C. & P. 44 
 — ^Bosanquet. 
 
 Where, in breaking a window in 
 order to steal property in the house, 
 the prisoner's finger went within 
 the house : — Held, that there was a 
 sufficient entry to constitute burg- 
 lary. Rex V. Davis, R. & R. C. C. 
 499. 
 
 Throwing up a window, and in- 
 troducing an instrument between 
 such window and an inside shutter, 
 to force open the shutter, if the 
 hand or some part of it is not with- 
 in the window, is not a sufficient 
 entry to constitute burglary. Rex 
 V. Rust, 1 M. C. C. 183. 
 
 So where the prisoner raised a 
 window which was not bolted, and 
 thrust a crow-bar under the bot- 
 tom of the shutter (which was 
 about half a foot within the win- 
 dow), so as to make an indent on 
 the inside of the shutter, but from 
 the length of the bar his hand was 
 not inside the house : — Held, that 
 it was not a sufficient entry to con- 
 stitute a burglary. Rex v. Roberts, 
 Cat. C. L. 293 ;_ 2 East, P. C. 487. 
 
 Where a window opens upon 
 hinges, and is fastened by a wedge, 
 so that the pushing against it will 
 
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68 
 
 BURGLARY AKD HOUSEBREAKING. 
 
 open it ; forcing it open by pushing 
 against it is a sufficient breaking to 
 constitute a burglary. Hex V. Ball, 
 R. & R. C. C. 355. 
 
 Removing the fastening of a 
 window by the hand introduced 
 through a partially broken pane of 
 the window, and thereby opening 
 the window and entering, is a 
 breaking ; not by breaking the res- 
 idue of the pane, but by unfasten- 
 ing and opening the window. Hex 
 V. RoUnson, 1 M. C. 0. 327 ; S. P. 
 Ryan y. Shikoch, 7 Exch. 72. 
 
 A chimney is part of a dwelUng- ^ ^ 
 house, and therefore the getting in 
 at the top is a breaking of the 
 dwelUng-house ; and where the pris- 
 oner, by lowering himself in the 
 chimney, made an entry into the 
 dwelUng-house, though he did not 
 enter any of the rooms, it is suffi- 
 cient to constitute burglary. Rex 
 V. Brice, R. & R. C. 0. 450. 
 
 Pulling down the sash of a win- 
 dow is a breaking sufficient to con- 
 stitute burglary, although it has no 
 fastening, and is only kept in its 
 place by the pulley-weight, and it 
 is equally a breaking, although 
 there is an outer shutter which is 
 not put to. Rex v. Haines, R. & 
 R. C. C. 451. 
 
 A window was a little open, and 
 the prisoner pushed it wide open 
 and got in : — Held, no sufficient 
 breaking. Rex v. Smith, Car. C. 
 L. 293 ; 1 M. C. C. 178. 
 
 When the family within the 
 house was forced by threats and 
 intimidations to let in the offenders 
 by one of them opening the door : 
 — ^Held, that it was as much a 
 breaking by those who made use of 
 such intimidations without, to pre- 
 vail upon them so to open it, as if 
 they had actually burst the door 
 open. Rex v. Swallow, 2 Russ. C 
 & M. 9— Thompson. 
 
 On an indictment for burglary, 
 it was proved the legs of the pris- 
 oner were seen hanging about a 
 foot from the ground, from a win- 
 dow, and no other part of his body 
 
 was visible till he jumped down 
 and ran away : — Held, that though 
 it appeared there was a hole brok- 
 en in the window large enough 
 to admit a man's head and shoul- 
 ders, there was no evidence to shew 
 that there had been any actual en- 
 try, no property being lost. Reg. 
 V. Meal, 3 Cox, C. C. 70— Coltman. 
 A servant pretended to concur 
 with two persons, who proposed to 
 him to unite with them in robbing 
 his master's house. The master be- 
 ing out of town, the servant com- 
 municated with the police, and act- 
 ed under their instructions. In con- 
 sequence of this, a little after nine 
 o'clock one evening, he let in one of 
 the persons, by lifting the latch ; 
 but before that person had taken 
 any property he was seized by the 
 police, and, a crow-bar being found 
 upon him, was immediately placed 
 in coniinement. After this the serv- 
 ant went out again, and fetched the 
 second person, and let him in the 
 same manner. This person was 
 seized with a basket of plate in his 
 hand, which he had carried from 
 the kitchen, part of the way up- 
 stairs : — Held, that neither of the 
 persons could be convicted of burg- 
 lary; but that the one who was 
 seized with the plate might be con- 
 victed of stealing in a dwelling- 
 house, and also that the other might 
 be indicted as an accessory before 
 the fact to such stealing. Reg. v. 
 Jones, Car. & M. 218 — Maule and 
 Rolfe. 
 
 3. Breaking Out. 
 
 IS a person commits a felony in 
 a house, and breaks out of it in the 
 night-time, this is burglary, al- 
 though he might have been law- 
 fully in the house. Reg. v. Wheel- 
 don, 8 C. & P. 747— Erskine. 
 
 On an indictment for stealiag wine 
 out of a cellar, and burglariously 
 breaking out therefrom, it appeared 
 that the prisoner broke out of the 
 cellar by lifting up a heavy flap by 
 which the cellar was closed on the 
 
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LODGEFtS— NIGHT - TIME— DWELLING - HOUSE. 
 
 .69 
 
 outside next the street ; the flap was 
 not bolted, but it had bolts : — six 
 judges were of opinion that there 
 was a sufficient breaking to consti- 
 tute burglary, but the remaining 
 six were of a contrary opinion. Hex 
 V. Callan,^. & R. C. C. 157. And 
 see Hex v. Brown, 2 East, P. C. 487 ; 
 2 Leach, C. C. 1016, n. 
 
 The lifting up of a trap-door cov- 
 ering a cellar, which was merely 
 kept in its place by its own weight, 
 and which had no fastenings, be- 
 cause, it being a new trap-door, they 
 had not been put on, is not a suffi-< 
 cient breaking to constitute a burgr 
 lary ; but unlockiug and opening a 
 hall door and running away is a suf- 
 ficient brealdng out of the house. 
 Hex V. Lawrence, 4 C. & P. 231 — 
 Bolland. But, according to Hex v. 
 Russell, 1 M. C. C. 377, Ufting the 
 flap of a cellar, usually kept down 
 by its own weight, would constitute 
 burglary. 
 
 4. By Lodgers. 
 
 If a lodger in a house has com- 
 mitted a larceny there, and in the 
 night-time even Ufts a latch to get 
 out of the house with the stolen 
 property, this is a burglariously 
 breaking out of the house. Heg. v. 
 Wheeldm, 8 C. & P. 747— Erskine. 
 
 5. What is Night-time. 
 
 By 24 & 25 Vict. c. 96, s. 1, "the 
 " night shall be deemed to com- 
 " mence at nine of the clock in the 
 " evening of each day, and to con- 
 " elude at six of the clock in the 
 " morning of the next succeeding 
 " day." [Similar to 7 Will. 4 & 1 
 Vict. c. 86, repealed.) 
 
 In burglary, where the burglary 
 is one night after, a person present 
 at the breaking, though not present 
 at the entering, is in law guilty of 
 the whole offence. Hex v. Jordan, 
 7 C. & P. 432— Gaselee and Gur- 
 ney. 
 
 The prisoner broke the glass of 
 the prosecutor's side door on the 
 Friday night, with intent to enter 
 
 Digitized by Microsoft® 
 
 the house at a future time, and act- 
 ually entered ontheSunday: — Held, 
 that this was burglary, although a 
 day had intervened, the breaking 
 and entering being both by night, 
 and the breaking being with intent 
 afterwards to enter. Hex v. Smith, 
 R. & R. C. C. 417. 
 
 6. What is a Dwelling-house. 
 
 \_See 24 & 25 Vict. c. 76, s. 58, hy 
 which many of the following 
 cases are affected, but they are 
 retained as they may still serve to 
 illustrate the subject.'] 
 
 If the outhouse is adjoining to the 
 dwelling-house, and occupied as 
 parcel thereof, though there is no 
 common inclosure or curtilage, it 
 may still be considered as part of 
 the mansion. Hex v. Brown, 2 East, 
 P. C. 493. 
 
 An outhouse in the yard of a 
 dwelling-house will be parcel of the 
 dwelling-house if the yard is in- 
 closed, though the occupier has an- 
 other dwelling-house opening into 
 the yard, and he lets such dwelling- 
 house with easements in the yard. 
 Hex V. Walters, 1 M. C. C. 13. 
 
 Two adjoining houses belonging 
 to two partners, of which the rent 
 and taxes are paid from the joint 
 fund, may still be the respective 
 mansions of each partner, if there is 
 no communication from one to the 
 other but throiigh the outer doors 
 to the street. Hex v. Jones, 1 Leach, 
 C. C. 537 ; 2 East, P. C. 504. 
 
 A permanent building used and 
 slept in only for a short time for the 
 purpose of a fair, may be treated as 
 the dwelling-house of the person so 
 occupying it, though unoccupied the 
 rest of the year. Hex v. Smith, 1 M. 
 & Rob. 256— Park. 
 
 A burglary committed in a bank- 
 er's shop,' in which no person slept, 
 but to which there was a communi- 
 cation by a trap-door and a ladder 
 from the upper rooms of the house, 
 in which only a weekly workman 
 and his family lived by the permis- 
 
70 
 
 BUKGLAKY AND HOUSEBREAiaNG. 
 
 sion of the three partners, who were 
 owners of the whole house, may be 
 laid to have been committed in the 
 dwelling-house of , these partners, 
 they inhabiting it by means of their 
 servant. Rex v. Stock, 2 Leach, C. 
 C. 1015 ; R. & R. C. 0. 185 ; 2 
 Taunt. 339. 
 
 A summer-house used occasion- 
 ally for tea and retirement, within 
 the same inclosure as the house, 
 though at the distance of about half 
 a mile, was a building within 4 Geo. 
 2, c. 32. Rex v. Mrris, R. & R. 
 C. C. 69. And see Rex v. Parker, Ij, 
 Leach, C. 0. 320, n. 
 
 A building within the same fence 
 as the dwelling-house, and used with 
 it as parcel of the dwelling-house, 
 though it has no internal communi- 
 cation with the house but through 
 an open passage, is parcel of the 
 dwelling-house. Rex v. Hancock, R. 
 & R. C. C. 170. 
 
 And such a building is equally 
 part of the dwelling-house, though 
 used partly for the separate business 
 of the occupier of the dwelling- 
 house, and partly for a business in 
 which he was a partner. Ih. 
 
 "W. let part of his house, viz. a 
 shop, passage, cellar, &c. to his son, 
 who did not sleep therein, and there 
 was a distinct entrance into the son's 
 jiart, but his passage led to his fath- 
 er's cellars, and they were open to 
 his father's part of the house. The 
 shop was broken into, and the pris- 
 oner was convicted thereof: — Held, 
 that by reason of the internal com- 
 munication, the son's part continued 
 part of the father's house, and there- 
 fore that was burglary. Rex v. Sef- 
 ton, R. & R. C. 0. 202. 
 
 A shop adjoining to a house, if 
 under the same roof, and within the 
 curtilage, is part of the dwelling- 
 house, although there is no internal 
 communication between the shop 
 and the house, and although no 
 person sleeps in the shop. Hex v. 
 Gibson, 1 Leach, 0. C. 357 : 2 East, 
 P. C. 508. 
 
 A room in a dwelling, occupied 
 
 therewith and under the same roof, 
 will be deemed part of the dwell- 
 ing-house, though it has a separate 
 outer door, and no internal commu- 
 nication with the rest of the house. 
 Rex V. Burrowes, 1 M. C. C. 274. 
 
 Where the owner of a house has 
 never by himself, or by any of his 
 family or servants, slept in the house, 
 it is not his dwelling-house, so as to 
 make the breaking in and stealing 
 goods thereout burglary, though he 
 has used it for his meals, and all the 
 purposes of his business. Rex v. 
 Martin, R. & R. C. C. 108. 
 
 Although a man leaves his house, 
 and never means to reside in it 
 again, yet, if he uses part of it as a 
 shop, and lets a' servant and his fam- 
 ily live and sleep in another part of 
 of it, for fear the place should be 
 robbed, and lets the rest to lodgers, 
 the habitation by his servant and 
 family is an habitation by him, and 
 the shop will be considered as part 
 of the dwelling-house, so as to con- 
 stitute the breaking thereof burg- 
 lary. Rex V. Gibbons, R. & R. C. 
 G. 442. 
 
 The prosecutor's house was at the 
 corner of a street, and adjoining 
 thereto was a workshop, beyond 
 which a stable and a coach-house 
 adjoined; all were used with the 
 house, and had doors opening into a 
 yard belonging to the house, which 
 yard was surrovmded by adjoining 
 buildings, so as to be altogether an 
 inclosed yard; the workshop had no 
 internal communication with the 
 house, and it had a door opening in- 
 to the street ; its roof was higher 
 than that of the dwelling house : the 
 street door of the workshop was 
 broken open in the night: — Held, 
 the workshop was parcel of the 
 dwelling-house. Rex v. Chalking, 
 R. & R. C. C. 334. [The law laid 
 down in this case and the six follow- 
 ing cases is altered by 24 & 25 Vict 
 c. 96, s. 53:] 
 
 A garret made use of as a work- 
 shop, and rented with a sleeping- 
 room by the week, is the mansion of 
 
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WHAT IS NOT A DWELLING-HOUSE. 
 
 71 
 
 the lodger, if the landlord does not 
 sleep under the same roof. Hex v. 
 Oarrell, 1 Leach, C. C. 237 : 2 East, 
 P. 0. 506. , ■ 
 
 Lofts over coach-houses and sta- 
 bles, converted into lodging-rooms, 
 are the dwelling-houses of their in- 
 habitants, if there is an outer door. 
 Rex V. Turner^ 1 Leach, C. C. 305 ; 
 2 East, P. C. 492. 
 
 An area gate, opening into the 
 area only, is not part of the dwell- 
 ing-house so as to make the break- 
 ing thereof burglary, if there is any 
 door or fastening to prevent persons 
 in the area from entering the house, 
 although such door or fastening 
 may not be secured at the time. Hex 
 v. Davis, R. & R. C. C. 322. 
 
 A building used with and under 
 the same roof with a dwelling- 
 house, but having no internal com- 
 munication with it, although open- 
 ing into an inclosed yard belonging 
 to the house, and also into an adjoin- 
 ing street, may be parcel of the 
 dwelling-house, so as to constitute 
 the breaking and entering thereof a 
 burglary. Rex v. Ldthgo, R. & R. 
 C. C. 357. 
 
 The prisoner broke into a goose- 
 house opening into the pi-osecutor's 
 yard, into which his house also 
 opened; the yard was surrounded 
 partly by other buildings of the 
 homestead, and partly by a wall ; 
 some of the buildings had doors 
 opening backwards, and there was 
 a gate in one part of the wall 
 opening upon a road ; this goose- 
 house,, was held part of the dwell- 
 ing-house, so as to constitute the 
 breaking thereof burglary. Rex v. 
 Glayburn, R. & R. C. C. 360. 
 
 Buildings separated from the 
 dwelling-house by a public road, 
 however narrow, will not be a par- 
 cel of the dwelling-house, so as to 
 constitute the breaking thereof burg- 
 lary, if there is no common fence or 
 roof to connect them, although held 
 by the same tenure, and althougli 
 some of the offices necessary to the 
 dwelling-house adjoin thereto, and 
 
 although there be an awning ex- 
 tending therefrom to the dwelling-, 
 house. Rex v. Westwood, R. & R. 
 C. C. 495. 
 
 But if such a building is made a 
 sleeping place for any of the ser- 
 vants of the dwelling-house, it may 
 be deemed a distinct dwelling-house. 
 Ih. 
 
 7. What is not a Dwelling-house. 
 
 A manufactory carried on in the 
 centre building of a great pile, in 
 the wings of which several persons 
 dwelt, but having no internal com- 
 munication with the same, though 
 the roofs of all were connected, and 
 the entrances of all were out of the 
 same common inclosure : — Held, not 
 a dwelling-house in which burglary 
 could be committed. Rex v. JSgg- 
 inton, 2 East, P. 0. 494, 666 ; 2 
 Leach, C. C. 913 ; 2 B. & P. 508. 
 
 A door which only forms part of 
 the outward fence of the curtilage, 
 and opens into no building but in- 
 to the yard 'only, is not such a part 
 of the dwelling-house as that the 
 brealdng thereof will constitute 
 burglary. Rex v. Bennett, R. & R. 
 C. C. 289. 
 
 Where the prosecutor left his 
 house without any intention of liv- 
 ing in it again, and intending to use 
 it as a warehouse only ; though he 
 had persons (not of his family) to 
 sleep in it, to guard the property : 
 — Held, that it could not be consid- 
 ered as the dwelling-house of the 
 prosecutor, so as to support a con- 
 viction for stealing therein. Rex v. 
 Flannagan, R. & R. C. C. 187. 
 
 The owner of a house puts a per- 
 son into it to sleep there at nights till 
 he can get a tenant, in order to pro- 
 tect some furniture there, which he 
 had purchased of the last tenant, 
 which servant had so slept there for 
 three weeks before, but the owner 
 never intended to inhabit it himself: 
 — Held, that a thief could not be 
 convicted of stealing goods in the 
 dwelling house of such ownet to the 
 value of 40«'. within 12 Anne, c. 8. 
 
 Digitized by Microsoft® 
 
72 
 
 BURGLARY AND HOUSEBREAKING. 
 
 Hex V. Davis, 2 East, P. C. 499 ; 2 
 Leach, C. C. 876. 
 
 Or if the owner of a house has no 
 intention of residing in it Mmself, it 
 cannot be considered his dwelling- 
 house, although his servant sleeps 
 in it every night, if his sleeping 
 there be merely to protect the fur- 
 niture. Ih. 
 
 A house into which the owner 
 has only removed his goods, but has 
 not slept in it, is not his dwelling- 
 house as to burglary. Hex v. 
 Thompson, 2 Leach, C. C. 771 ; 2 
 East,- P.O. 498. 
 
 A nocturnal breaking into a house 
 of which the owner has no farther 
 taken possession than by depositing 
 in it sundry articles of merchandise, 
 neither he nor any servant of his 
 having slept in it, is not burglary, 
 for it cannot be considered as the 
 dwelling-house of the owner. Rex 
 V. Harris, 2 Leach, C. C. 701 ; 2 East, 
 P. C. 498. 
 
 A house under repair, but not in- 
 habited, is not the dwelling-house 
 of the owner, though part of his 
 property is deposited therein. Rex 
 V. Lyons, 1 Leach, C. C. 185 ; 2 East, 
 P. C. 497, differently reported : S. 
 P., Rex V. Fuller, 1 Leach, C. C. 
 186, n. 
 
 A porter lying in a warehouse 
 does not make it a dwelling-house. 
 Rex V. Smith, 2 East, P. C. 497 ; 2 
 Leach, C. C. 1018, n. And see Rex 
 V. Brown, 2 East, P. C. 501 ; 2 Leach, 
 C. C. 1018, n. 
 
 On the trial of an indictment for 
 burglary, it appeared that adjoining 
 to the prosecutor's dwelling-house 
 was a kihi, one end of which was 
 supported by the end wall of the 
 dwelling-house, and that adjoining 
 to the kiln was a dairy, one end of 
 which was supported by the end wall 
 of the kiln. There was no internal 
 communication from the dwelling- 
 house to the daily, and the roofs of 
 dwelling-house, kiln and dairy were 
 of different heights: — Held, that 
 the dairy was not part of the dwell- 
 ing-house, and that a burglary could 
 
 not be committed by breaking into 
 it. Reg. v. Higgs, 2 C. & K. 322— 
 Wilde. 
 
 8. Breaking into Churches and Places 
 of Divine Worship. 
 
 By 24 & 25 Vict. c. 96, s. 50, 
 " whosoever shall break and en- 
 " ter any church,- chapel, meeting- 
 '' house or other place of divine 
 " worship, and commit any fel- 
 " ony therein, or being in any 
 " church, chapel, meeting-house or 
 " other place of divine worship shall 
 " commit any felony therein and 
 " break out of the same, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for life, or 
 " for any term not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 "be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour-, and with or with- 
 " out solitary confinement." {Pre- 
 vious provisions, 7 & 8 Geo. 4, c. 29, 
 s. 10.) 
 
 By s. 57, "whosoever shall break 
 "and enter any dwelling-house, 
 "'church, chapel, meeting-house or 
 " other place of divine worship, or 
 " any building within the curtilage, 
 " school-house, shop, warehouse or 
 " counting-house, with intent to com- 
 "mit any felony therein, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall be liabk, at 
 " the discretion of the court, to be 
 "kept in penal servitude for any 
 "term not exceeding seven years 
 " and not less than five years (27 & 
 " 28 Vict. c. 47), or to be imprison- 
 " ed for any term not exceeding two 
 "years, with or without hard la- 
 " hour, and with or without solitary 
 " confinement." 
 
 By 7 & 8 Geo. 4, c. 27, 23 Hen. 
 8, c. 1, was wholly repealed, and so 
 much of 1 Edw. 6, c. 12, as related 
 to this subject; and 24 & 25 Vict, 
 c. 95, repealed 7 & 8 Geo. 4, c. 29 
 s. 16, and 7 WiU. 4 & 1 Vict. c. 9o! 
 s. 2. 
 
 Digitized by Microsoft® 
 
THE CURTILAGE. 
 
 73 
 
 A dissenting meeting-house was 
 not within 7 & 8 Geo. 4, c. 29, s. 10, 
 which made it a capital oifence to 
 " break and enter any church or 
 chapel, and steal therein." Rex v. 
 Richardson, 6 C. & P. 335 ; S. P. 
 Rex V. Warren, 6 C. & P. 335, n. 
 
 A prisoner was indicted under 7 
 ^ 8 Geo. 4, c. 29, s. 10, for break- 
 ing and entering a chapel, and steal- 
 ing several fixtures, and a bell not 
 fixed. The chapel was a Wesley- 
 an chapel, and not a chapel of the 
 Church of England : — Held, that 
 the case must be confined to the 
 act of simple larceny for stealing 
 the bell. Rex v. Nixon, 7 C. & P. 
 442 — Patteson and Gurney. 
 
 If a church tower is biiilt higher 
 than' the church, and has a separate 
 roof, but has no outer door, and is 
 only accessible from the body of the 
 church, from which it is not sepa- 
 rated by any partition ; this tower 
 is a part of the church within 7 & 8 
 Geo. 4, c. 29, s. 10. Rex v. Wheeler, 
 3 C. & P. 585— Parke. 
 
 The provisions of 1 Edw. 6, c. 12, 
 s. 10, were not confined to goods 
 used for divine service ; they ex- 
 tended to articles kept in the church 
 to keep it in repair, and therefore a 
 conviction on an indictment on that 
 act, for stealing a snatch-block to 
 raise weights in case the bells want- 
 ed repairing, and an iron pot for 
 charcoal, used to air the vaults, was 
 held right. Rex v. Rourhe, R. & 
 R. C. C. 386. 
 
 To warrant a conviction for break- 
 ing and entering a church under 7 
 & 8 Geo. 4, c. 29, s. 10, there must 
 been a stealing therein of some chat- 
 tel. Stealing a fixture was not suf- 
 ficient. But if the stealing of fix- 
 tures was averred in such count, 
 the prisoner might be convicted 
 simply thereof under s. 44. Reg. v. 
 Baker, 3 Cox, C. C. 581— Alderson. 
 
 The vestry of a church was brok- 
 en open and robbed. It was form- 
 'ed out of what before had been 
 a church porch, but had a door 
 opening into the churchyard, which 
 
 Digitized by Microsoft® 
 
 could only be unlocked from the in- 
 side : — Held, that this vestry was 
 part of the fabric of the church, and 
 within the meaning of an indictment 
 for sacrilegiously breaking and en- 
 tering the chvirch. Reg. v. Evans, 
 Car. & M. 298— Coleridge. 
 
 A. and B. were indicted for sacri- 
 legiously breaking into a church and 
 stealing a box and money : — Held, 
 first, that the box. (under the cir- 
 cumstances) was not afiixed to the 
 freehold, bu.t was constructively in 
 the possession of the vicar and 
 church-wardens. Reg. v. Worthy, 
 1 Den. C. C. 162. 
 
 Held, secondly, that the property 
 was rightly laid in the vicar and 
 others, in their individual names. 
 lb. 
 
 Burglary may be committed in a 
 church at common law. Reg. v. 
 Baker, 3 Cox, C. C. 581— Alderson. 
 
 9. The Curtilage. 
 
 By 24 & 25 Vict. c. 96, s. 53, 
 "no building, altogether within the 
 "same curtilage with any dwell- 
 "ing-house, and occupied therewith, 
 " shall be deemed to be part of such 
 "dwelling-house for any of the pur- 
 " poses of this act, unless there shall 
 "be a communication between such 
 " building and dwelling-house, eith- 
 " er immediate or by means 'of a 
 " covered and inclosed passage lead- 
 "ing from the one to the other." 
 {Former provision, 7 & 8 Geo. 4, o. 
 29, s. 14.) 
 
 On the trial of an indictment for 
 breaking into a building within the 
 curtilage, under 7 & 8 Geo. 4, c. 
 29, s. 14, it appeared, that the build- 
 ing was in the fold-yard of the pro- 
 secutor's farm ; and that, to get 
 from his dwelling-house to the 
 fold-yard, it was necessary to pass 
 through a yard called the pump- 
 yard, into which the back-door of 
 the dwelling-house opened, the 
 pump-yard being separated from 
 fold-yard by a wall four feet high, 
 in which there was a gate, the fold- 
 yard having another gate leadiag 
 
74 
 
 BTJKGLARY AND HOUSEBREAKING. 
 
 to fields on one side, a hedge, with 
 a gate leading to the high road, on 
 another, the other sides of the fold- 
 yard being bounded by the farm- 
 buildings and a continuous wall 
 from the dwelling-house: — Held, 
 that the building was within the cur- 
 tilage. Reg. V. Gilbert, 1 C. & K. 
 84 — Wightman. 
 
 10. Ownership. 
 
 A gardener living in a house of 
 his master, quite separate from the 
 dwelling-house of his master, and 
 the gardener had the entire control 
 of the house he li^ed in, and kept 
 the key : — Held, that, on an indict- 
 ment for burglary, the gardener's 
 house might be laid either as his or 
 as his master's. Hex v. Sees, 7. C. 
 & P. 568. 
 
 The apartments of lodgers will be 
 considered as their respective dwell- 
 ing-houses, if the owner of the prem- 
 ises does not sleep under the same 
 roof. Jiex V. Rogers, 1 Leach, C. 
 C. 89 ; -2 East, P. C. 606. ' 
 
 A house, the whole of which is 
 let out in lodgings, and has only one 
 outer door common to all its in- 
 mates, is the mansion house of its 
 several inhabitants. Rex v. Trap, 
 shaw, 1 Leach, C. C. 427 ; 2 East, 
 P. C. 506, 780. 
 
 Though a servant lives rent-free 
 for the purpose of his service in a 
 a house provided for that purpose ; 
 yet, if he has the exclusive posses- 
 sion, and it is not jmrcel of any 
 premises which his master occupies, 
 it may be described as the house of 
 the servant ; especially if the house 
 belongs not to his master, but to 
 some person paramount to his mast- 
 er ; as in the case of a toll-collector's 
 house, occupied by the servant of 
 the lessee of the tolls, for the pur- 
 pose of collecting the tolls. Rex v. 
 Gamfield, 1 M. C. C. 42. 
 
 If two or more rent of the same 
 owner diiferent parts of the same 
 house, so as to have amongst them 
 the whole house, and the owner 
 does not reserve or occupy any part 
 
 Digitized by 
 
 of it, the separate part of each may 
 be described as the dwelling-house 
 of each. Rex v. Baiky, 1 M. C. C. 
 23. 
 
 A house the joint property of 
 partners in trade, and in which their 
 business is carried on, may be de- 
 scribed as the dwelling-house of all 
 the partners, though only one of 
 them resides in it. Hex v. Athea, 1 
 M. C. C. 329. 
 
 If a married woman takes a house, 
 in which a burglary is committed, 
 the house must be laid as the house 
 of the husband, although she is liv- 
 ing separate from him. Rex v. 
 Smyth, 5 C. & P. 201— Tenterden. 
 
 The house of a husband in which 
 he allows his wife to live separate 
 from him, may be described in an 
 indictment for 'burglary, as the 
 house of the husband, although the 
 wife lived there in adultery with an- 
 other man, who paid the housekeep- 
 ing expenses ; and although the 
 husband suspected a criminal inter- 
 course between his wife and the 
 other man when he allowed her to 
 Hve separate. Rex v. Wilford, R. 
 & R. C. C. 517. 
 
 Whei:e a married woman lived 
 apart from her husband, upon an 
 income arising from property vested 
 in trustees for her separate use : — 
 Held, that a house which she had 
 hired to hve in was, in an indictment 
 for burglary, properly described as 
 her husband's dwelling-house, al- 
 though she paid the rent out of her 
 separate property, and the husband 
 had never been in it. Hex v. 
 French, R. & R. C. C. 491. 
 
 If a servant lives in a house of 
 his master's at a yearly rent, the 
 house cannot be described as the 
 master's house, though it is on the 
 premises where the master's busi- 
 ness is carried on, and although the 
 servant has it because of his serv- 
 ices. Rex V. Jarvis, 1 31. C. C. 7. 
 
 Where a servant had part of a 
 house for his own occupation, and 
 the rest, in which a burglary is 
 committed, is reserved by the pro- 
 
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INTENT. 
 
 70 
 
 prietor for other purposes, the part 
 reserved cannot be deemed part of 
 the servant's dwellmg-house. Rex 
 V. Wilson, R. & R. C. C. 115. 
 
 And it -will be the same if any 
 other person has part of the house, 
 and the rest is reserved. lb. 
 
 If the owner of a house suffers a 
 person to live in it rent-free, it may 
 be stated, in an indictment for break- 
 ing into such house in the day-time, 
 to be that person's house ; such per- 
 son being tenant at will. Rex v. 
 OoUeU, R. & R. C. C. 498. 
 
 A burglary in the apartments of 
 officers of a public company must 
 be laid to be in the mansion-house 
 of such company. Rex v. Hawkins, 
 2 East, P. C. 501. 
 
 So of the apartments of a college 
 not occupied by the students, as the 
 buttery. Rex v. Maynard, 2 East, 
 P. C. 501. 
 
 Where one, under pretence of be- 
 ing robbed, forced the door of a 
 guest's chamber in an inn, at night, 
 and stole his goods : — Held, that 
 the burglary must be laid to be in 
 the dwelling-house of the innkeeper, 
 and not of the guest. Rex v. Pr<is- 
 ' ser, 2 East, P. C. 502. 
 
 If a burglary is committed in the 
 house of a trading company, in the 
 house belonging to which an agent 
 of the company resides, with his 
 family, for the purpose of carrymg 
 on the business, it may be laid to be 
 the dwelling-house of the agent, al- 
 though the rent is paid and the lease 
 is held by the company. Rex v. 
 Margetts, 2 Leach, C. C. 930. 
 
 Though a servant lives rent-free 
 in a house belonging to an insurance 
 company, and the company pays 
 the taxes, and the company's busi- 
 ness is carried on in the house, yet 
 if the servant and his family are the 
 only persons who sleep in the house, 
 and the part in which the company's 
 business is carried on is at all times 
 open to those parts in which the 
 servant lives, it may be stated as 
 the servant's house, though the only 
 part entered by the thief was that 
 ^ ' Digitized by 
 
 in which the company's business 
 was carried on; arid though the 
 judges would not say that it might 
 not have been described as the com- 
 pany's house, they thought it might, 
 with equal propriety, be described 
 as the house of the servant. Rex v. 
 Witt, 1 M. C. C. 248. 
 
 If a house is let to A., and a ware- 
 house under the same roof, and with 
 an internal communication to the 
 house, to A. and B. ; the^warehouse, 
 in an indictment for burglary, can- 
 not be described as the dwelling- 
 house of A. Rex V. Jenkins, R. & 
 R. C. C. 244. 
 
 If the owner of a cottage lets one 
 of his workmen, with his family, 
 live in the cottage free of rent and 
 taxes, and he lives there principally, 
 if not wholly, for his own benefit, 
 it may be described as the work- 
 man's dwelling-house in an indict- 
 ment for burglary. Rex v. Jobling, 
 R. & R. C. C. 525. 
 
 In an indictment for burglary in 
 the workhouse of a poor law union, 
 the workhouse being under 5 & 6 
 Will. 4, c. 69, s. 7, may be described 
 as the dwelling-house of the guardi- 
 ans of the poor of that union. Sem- 
 ble, that the workhouse cannot be 
 described as the dwelling-house of 
 the master of the workhouse. Reg. 
 V. Frowen, 4 Cox, C. C 266— Piatt. 
 
 A. was in the service of B. and 
 lived in a house close to B.'s place 
 of business. B. did not live in the 
 house himself, but he paid the rent 
 and taxes. A. paid nothing for his 
 occupation. Part of the house was 
 used as store-rooms for B.'s goods : 
 — Held, that this was the dwelling- 
 house of B., and was improperly 
 described in the indictment as the 
 dwelling-house of A. Reg. v. Oourt- 
 ', 5 Cox, C. C. 218. 
 
 ' 11. Intent. 
 
 Breaking and entering a house 
 
 in the night-time to recover tea, 
 
 which had been seized, is no burg- 
 
 lary, being intended for the benefit 
 
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76 
 
 BURGLARY AND HOUSEBREAKING. 
 
 of the supposed owner. Rex v. 
 Knight, 2 East, P. 0. 510. 
 
 If several agree to commit a burg- 
 lary, but one communicates the in- 
 tent to an officer, that he may take 
 the other two, and the officer is 
 upon the watch accordingly; the 
 person who has made that commu- 
 nication to the officer will not be 
 particeps criminis in the burglary, 
 although he is present when it is 
 committed, and pretends to assist 
 the other two, but in fact expedites 
 their apprehension. Rex. v. Dan- 
 neUy, R. & R. C. C. 310 ; 2 Marsh, 
 571. 
 
 Nor will it make any diiference, 
 although his object in detecting is 
 to obtain for himself (by previous 
 agreement with the officer) part of 
 a reward that will be payable on 
 conviction. lb. 
 
 On an indictment for burglary, 
 where any part of the person of the 
 prisoner is within the dwelling- 
 house, no matter with what im- 
 mediate intent, there is a sufficient 
 entry to constitute the offence, and 
 therefore, where the hand was 
 proved to have been inside the 
 house, it is immaterial whether it 
 was there for the purpose of lifting 
 up a window, or of abstracting 
 property. But where no part of 
 the prisoner's body is inside the 
 premises, but he introduces an in- 
 strument within it for the mere pur- 
 pose of effecting an entry, and not 
 with any other object. Semble, 
 that the entry is not complete. 
 Reg. V. O'Bnen, 4 Cox, C. C. 398 
 — Patteson. 
 
 12. Armed with Intent to Break or 
 Enter. 
 By 24 & 25 Vict. c. 96, s. 58, 
 " whosoever shall be found by night 
 " armed with any dangerous or of- 
 " fensive weapon or instrument 
 " whatsoever, with intent to break 
 " or enter into any dwelling-house 
 " or other bu.ilding whatsoever, and 
 " to commit any felony therein, or 
 " shall be found by night having in 
 
 " his possession without lawful ex- 
 " cuse (the proof of which excuse 
 " shall Ue on such person) any piok- 
 " lock key, crow, jack, bit, or other 
 " irhplement of house-breaking, or 
 " shall be found by night having 
 " his face blackened, or otherwise 
 " disguised with intent to commit 
 " any felony, or shall be found by 
 " night in any dwelling-house or 
 " other building whatsoever within- 
 " tent to commit any felony there- 
 " in, shall be guilty of a misde- 
 " meaner." (Precisely similar to 
 former enactments, 14 & 15 Vict. c. 
 19, s. 1.) 
 
 By s. 59, "whosoever shall be 
 " convicted of any such misde- 
 " meanor as in the last preceding 
 " section mentioned, committed aft- 
 " er a previous conviction, either 
 " for felony or such misdem.eanor, 
 " shall on such subsequent convic- 
 " tion be liable, at the discretion of 
 " the court, to be kept in penal 
 " servitude for any term not ex- 
 " ceeding ten years and not less 
 " than five years (27 & 28 Vict. c. 
 "47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour." ' 
 (Former provision, 14 & 15 Vict. c. 
 19, s. 2.) 
 
 Keys are implements of house- 
 breaking within the statute; for 
 though commonly used for lawful 
 purposes, they are capable of being 
 employed for purposes of house- 
 breaking, and it is a question for 
 the jury whether the person found 
 in possession of them by night had 
 them without lawful excuse, and 
 with the intention of using them as 
 implements of housebreaking. Reg. 
 V. Oldham, 2 Den. C. C. 472 ; 3 C 
 &K. 249; 16 Jur. 505; 21 L. J., 
 M. C. 134; 5 Cox, C. C. 551. 
 
 Semble, per Maule, J., that the 
 printed copy of the section of the 
 statute is wrongly pimctuated, and 
 that the word key is within the ex- 
 press terms of the statute. Ih. 
 
 An intent to commit felony forms 
 no ingredient of the offence of be- 
 
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STEALDSTG IN A DWELLING - HOUSE. 
 
 77 
 
 ing found by night in tlie posses- 
 sion of housebreaking instruments 
 without lawful excuse. Meg. v. 
 Bailey, Dears. C. C. 244 ; 17 Jur. 
 1106 ; 23 L. J., M. C. 13 ; 6 Cox, 
 C. C. 241. 
 
 Where persons are charged, u.n- 
 der 24 & 25 Vict. c. 96, s. 58, with 
 being found by night armed with 
 an offensive weapon, with intent to 
 break and enter into a dwelling- 
 house or other building, and to 
 commit a felony therein, the par- 
 ticular house or building must be 
 specified in the indictment, and 
 proof given of their intent to break 
 and enter such house or building. 
 Reg. V. Jarrald, 9 Cox, C. C. 307 ; 
 L. & C. 301 ; 9 Jur., K S. 629 ; 
 32 L. J., M. C. 258; 11 W. R. 
 787 ; 8 L. T., K S. 515. 
 
 When several persons are found 
 out, together by night for the com- 
 mon purpose of housebreaking, and 
 one only is in possession of the house- 
 breaking implements, all may be 
 found guilty of the misdemeanor of 
 being found by night Ln possession 
 of implements of housebreaking, 
 without lawful excuse, under 24 & 
 25 Vict. o. 96, s. 58, for the posses- 
 sion of one is in such case the pos- 
 session of all. Reg. t. Thompson, 
 21 L. T., N. S. 397— C. C. R. 
 
 13. Stealing in a Dwelling-house. 
 
 The 7 & 8 Geo. 4, c. 27, repealed 
 23 Hen. 8, c. 1, and so much of 1 
 Edw. 6, c. 12, as related to house- 
 breaking, and 39 Eliz. c. 15, 3 Will. 
 & M. c. 9, 10 Will. 3, c. 12, vulgo 
 10 & 11 Will. 3, c. 23, and 12 
 Ann. St. 1, c. 7 ; and 24 & 25 Vict. 
 c. 95, repeals 7 & 8 Geo. 4, c. 29, 
 s. 12, 3 & 4 Will. 4, c. 34, 7 Will. 
 4 & 1 Vict. c. 90, s. 1, and 7 Will, 
 4 & 1 Vict. c. 86, s. 5. 
 
 A. was indicted for breaking and 
 entering a dwelling-house, and steal- 
 ing certain specified goods. At the 
 time of breaking and entering, the 
 goods named in the indictment were 
 not in the house, but there were 
 other goods there belonging to the 
 
 Digitized by Microsoft® 
 
 prosecutor. The jury found that 
 he was not guilty of the felony 
 charged, but that he was guilty of 
 breaking and entering the dwelling- 
 house of the prosecutor, and at- 
 tempting to steal his goods therein : 
 Held, that there was no attempt to 
 commit the felony charged within 
 14 & 15 Vict. c. 100, s. 9, and there- 
 fore the verdict could not be sus- 
 tained. Reg. V. M^Pherson, Dears. 
 & B. C. C. 197 ; 3 Jur., N. S. 523 ; 
 26 L. J., M. C. 134 ; 7 Cox, C. C. 
 281, 
 
 An indictment for feloniously 
 breaking and entering a dwelling- 
 house, with intent feloniously to 
 steal therein, and not for actually 
 stealing, cannot be sustained, the 
 felony created by 7 & 8 Geo. 4, c. 
 29, s. 12, being entering and steal- 
 ing. Reg. V. Wenmouth, 8 Cox, C. 
 C. 348— Keating. 
 
 A prisoner was indicted for break- 
 ing into the house of Elizabeth A. 
 and stealing her goods. There was 
 a second count laying the property 
 of the goods in the Queen. It was 
 shown by proof of the record that 
 the husband of Elizabeth A. had 
 been convicted of felony, and it 
 was also proved that he was in 
 prison under his sentence, and that 
 the articles stolen were his before 
 his conviction, and had remained 
 in the house from the time of his 
 apprehension, and that the wife con- 
 tinued in the possession of the house 
 and goods till they were stolen : — 
 Held, that the prisoner might be 
 properly convicted of larceny on 
 the second count, which laid the 
 property of the goods in the Queen, 
 although there had been no ofiice 
 found, and that he could not be 
 convicted of housebreaking, as that 
 part of the, indictment which laid 
 the goods and the house to be those 
 of Ehzabeth A. could not be sup- 
 ported. Reg. V. Whitehead, 9 C. & 
 P. 429. 
 
 A. was charged with breaking 
 into the house of K., and stealing 
 the goods of M. It was proved by 
 
BURGLARY AND HOUSEBREAKING. 
 
 M. that K., his brother-in-law, had 
 taken the house, and that M. (who 
 lived on his property) carried on 
 the trade of a silversmith for the 
 benefit of K. and his family, having 
 himself neither a share in the profits 
 nor a salary. M. stated that he had 
 authority to sell any part of the 
 stock, and might take money from 
 the till, but that he should tell K. 
 of it; and that he sometimes bought 
 goods for the shop, and sometimes 
 K. did it: — Held, that M. was a 
 bailee, and that the goods lq the 
 shop might properly be laid as his 
 property. Beg. v. Bird, 9 C. & P. 
 44 — Bosanquet. 
 
 14. 'In Schools, Shops, Warehouses 
 or Gounting-Hoibses. 
 
 By 24 & 25 Vict. c. 96, s. 56, 
 " whosoever shall break and enter 
 " any dwelling-house, school-house, 
 " shop, warehouse or counting-house, 
 " and commit any felony therein, or, 
 " being in any dwelling-house,school- 
 " house, shop, warehouse or count- 
 " ing-house, shall commit any felony 
 " therein, and break out of the same, 
 " shall be guilty of felony." {Form- 
 er provisions, 7 & 8 Geo. 4, c. 29, 
 ss. 12, 15.) 
 
 By s. 57, " whosoever shall break 
 "and enter any dwelling-house, 
 " church, chapel, meeting-house, or 
 " other place of divine worship, or 
 " any building within the curtilage, 
 , " school-house, shop, warehouse, or 
 " counting-house, with intent to com- 
 "mit any felony therein, shall be 
 " guilty of felony." 
 
 Shops.'\ — A shop, to be within 
 the 7 & 8 Geo. 4, c. 29, s. 15, and 
 7 Will. 4 & 1 Vict. c. 90, s. 2, 
 must be a shop for the sale of 
 goods, and a mere workshop will 
 not be sufiicient. Reg. v. Sanders, 
 9 C. & P. 79— Alderson. ' 
 
 An opening of a door in a shop 
 under the same roof where the pris- 
 oner lived as a servant, for the pur- 
 pose of committing a felony, was a 
 
 breaking and entering within 7 & 8 
 Geo. 4, c. 29, s. 12. Reg. v. Wen- 
 mouth, 8 Cox, C. • C. 348— Keat- 
 ing. 
 
 On an indictment under 24 & 25 
 Vict. c. '96, s. 57, for feloniously 
 breaking and entering a shop with 
 intent to commit a felony ; a pris- 
 oner may be found guilty of mis- 
 demeanor in attempting to commit 
 that felony. Reg. v. Bain, 9 Cox, 
 C. C. 98. 
 
 But a person who breaks into a 
 blacksmith's shop and steals goods 
 there, might be convicted of break- 
 ing into a shop and stealing goods, 
 under 7 & 8 Geo. 4, c. 29, s. 15. 
 Reg. V. Garter, 1 C. & K. 173— 
 Denman. 
 
 Warehoiises-I — A cellar used mere- 
 ly for the deposit of goods intended 
 for removal and sale is a warehouse. 
 Reg. V. Hill, 2 M. & Rob. 458— 
 Rolfe. 
 
 Counting-houses.^ — A building 
 formed partly of premises employed 
 as chemical works; it was com- 
 monly called the machine-house, a 
 weighing machine being there, 
 where all the goods set out were 
 weighed, and a book being kept 
 there in which entries of the goods 
 so weighed were made. The ac- 
 count of the time of the workmen 
 ernployed in the works was kept in 
 this place, the wages of the men 
 were paid there ; the books in which 
 the entries of time and the payment 
 of wages were entered were brought 
 to the building for the purpose of 
 making entries and paying wages, 
 but at other times they were kept 
 in what was called the office, where 
 the general books and accounts of 
 the concern were kept :— Held, that 
 this building was properly described 
 in an indictment as a counting- 
 house within 7 & 8 Geo. 4, c. 29, s. 
 15. Reg. v. Potter, 2 Den. C. C 
 235; 3C. &K.179; T.&M.561; 
 15 Jur. 498; 20 L. J., M. C. 170- 
 5 Cox, C. C. 187. 
 
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INDICTMENT. 
 
 79 
 
 15. Parties Indictable. 
 
 A room door was latched, and 
 one person lifted the latch and en- 
 tered the room and concealed him- 
 self, for the purpose of committing 
 a robbery there, which he after- 
 wards accomplished. Two other 
 persons were present with him at 
 the time he lifted the latch, for the 
 purpose of assisting him to enter, 
 and screened him from observation 
 by opening an umbrella : — Held, 
 that the two were in law parties to 
 the brealdng and entering, and were 
 answerable for the robbery which 
 took place afterwards, though they 
 were not near the spot at the time 
 when it was perpetrated. Rex v. 
 Jordan, 7 Car. & P. 432 — Gaselee 
 and Gurney. 
 
 Where, on an indictment for 
 privately steahng in a shop, it ap- 
 peared that there were several act- 
 ing together, some in the shop, and 
 some out, for the purpose of assist- 
 ing those in the shop, and the prop- 
 erty was stolen by the hands of one of 
 those who were in the shop : — Held, 
 that those who were on the outside 
 were equally guilty as principals. 
 Rex V. Gogerly, R. & R. C. C. 343. 
 
 Upon an indictment against a 
 party as an accessory after the fact 
 in robbery, proof of the prisoner's 
 Imowledge of the felony, together 
 with proof of his aiding the princi- 
 pal in disposing of the fruits of the 
 robbery, is sufficient evidence of 
 comforting and assisting, to support 
 the indictment. Reg. v. Butterjield, 
 1 Cox, C. C. 39— Maule. 
 
 1 6. Indictment. 
 
 A house may be described as in 
 the possession of the actual occu- 
 pier, though his possession is wrong- 
 ful. Rex v. Wallis, 1 M. C. C. 344. 
 
 A prisoner was indicted for burg- 
 lary in the dwelling-house of B. 
 B. worked for W., who did carpen- 
 ter's work for a public company, 
 and put B. into the house, which 
 belonged to the company, to take 
 care of it, and some mills adjoin- 
 
 ing. B. received no more wages 
 after than before he went to live in 
 the house : — Held, not rightly laid. 
 Rex V. Rawlins, 7 C. & P. 150— 
 Gaselee. 
 
 An indictment for burglary stat- 
 ing in one count that the prisoner 
 " did break to get out," and in an- 
 other that he did break and get 
 out, was sufficient, since the 7 & 8 
 Geo. 4, c. 29, s. 11, which used the 
 words break out. Rex v. Compton, 
 7 C. & P. 139— Vaughan and Pat- 
 teson. 
 
 An indictment on 7 Will. 4 & 1 
 Vict. c. 86, s. 2, for the capital of- 
 fence of burglary and striking, must 
 have charged both the burglary and 
 the strildng, and the proof must cor- 
 respond with the indictment. Reg. 
 V. Parfitt, 8 C. & P. 288— Alder- 
 son. 
 
 A. was indicted for a burglary in 
 the house of S. W., and striking D. 
 James. The burglary was proved 
 as laid, but the person struck was 
 D. Jones : — Held, that the jmsoner 
 must be acquitted of the capital 
 charge, and convicted of burglary 
 only. lb. 
 
 It is sufficient in an indictment 
 for burglary to allege that the of- 
 fence was committed burglariously, 
 without stating the time at which 
 the offence was committed, or even 
 that it was done in the night time. 
 Reg. V. Thompson, 2 Cox, C. C. 
 445 — Patteson. Contrd Rex v. 
 Waddington, 2 East, P. C. 513. 
 
 It must be alleged and proved, 
 either that a felony was committed 
 in the dwelling-house, or that the 
 party broke and entered with intent 
 to commit some felony within the 
 same. Rex v. Dobbs, 2 East, P. C. 
 513. 
 
 And whatever be the felony real- 
 ly intended, the same must be laid 
 in the indictment, and proved agree- 
 ably to the fact. Rex v. Vander- 
 comb, 2 East, P. C. 514, 517; 2 
 Leach, C. C. 708. 
 
 But the same fact may be laid 
 with several intents. Rex v. Thomp- 
 
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80 
 
 BURGLARY AND HOUSEBREAKING. 
 
 son, 2 East, P. C. 515 ; 2 Leacli, 
 C. C. 1105, n. 
 
 An indictment for burglary , charg- 
 ing in one count an intent to steal 
 the goods of the owner, and in an- 
 other an intent to murder him, is 
 good, for it is the same fact and 
 evidence, only laid in different 
 ways. lb. 
 
 The name of the owner of the 
 house is essential in an indictment 
 for burglary, and for stealing in the 
 dwelling-house. Hex v. White, 1 
 Leach, C. C. 252; 2 East, 513,780; 
 /S. JP. Bex V. Woodward, 1 Leach, 
 C. C. 253, n. 
 
 A corporation must prosecute in 
 its corporate name ; and the addi- 
 tion of such a name as a description 
 of the persons of which the corpora- 
 tion is composed is not sufficient in 
 an indictment. Rex v. Patrick, 1 
 Leach, C. C. 253 ; 2 East, P. C. 
 1059. 
 
 An indictment for burglariously 
 breaking and entering the house of 
 A., Avith intent to steal the goods of 
 B., is bad, if no person of that name 
 had any property in the house. 
 Bex V. Jenlcs, 2 Leach, C. C. 774 ; 
 2 East, P. C. 514. 
 
 An indictment alleging that J. 
 P., late of the parish of P., in the 
 county of M., with force and arms, 
 at the parish aforesaid, in the county 
 aforesaid, the dwelling-house of the 
 guardians of the poor of the P. 
 Union, there situate, feloniously did 
 ibreak and enter, is a sufficient de- 
 scription of the situation of the 
 work-house, the word, " there situ- 
 ate," referring not to the union, but 
 to the parish before mentioned. 
 Beg. V. Frowen, 4 Cox, C. C. 266— 
 Piatt. 
 
 It is sufficient to allege that the 
 burglary was committed at a 
 place, naming it, e. g., " at Nor- 
 ton-juxta-Kempsey, in the coun- 
 ty aforesaid," without stating the 
 place to be a parish, vill, chapelry, 
 or the like. Beg. v. Brookes, Car. 
 & M. 544— Patteson. 
 
 An indictment for breaking into 
 
 a warehouse, and stealing goods, 
 stated the offence to have been com- 
 mitted in " the parish of St. Peter 
 the Great, in the county of W." 
 The only part of the parish of St. 
 Peter the Great is in the county of 
 W.: — ^Held, that indictment could 
 not be supported for the breaking 
 into the warehouse, but that it was 
 sufficient for the larceny ; and that, 
 to be good as to the breaking, it 
 should have charged the offence to 
 have been committed " in that part 
 of the parish of St. Peter the Great 
 which lies within the county of W." 
 
 An indictment for burglary charg- 
 ed the prisoner with breaking, in the 
 night-time, into the dwelUng-house 
 of E. B. " with intent the goods and 
 chattels in the same dwelHng-house 
 then and there being feloniously 
 and burglariously to steal, and steal- 
 ing the goods of E. B." It was 
 proved that the house was that of 
 E. B., but that the goods the pris- 
 oner stole were the joint property 
 of E. B. and two others : — Held, 
 that, if it was proved that the pris- 
 oner broke into the house of E. B. 
 with intent to steal the goods there 
 generally, that would be sufficient 
 to sustain the charge of burglary 
 contained in the indictment, without 
 proof of an intent to steal the goods 
 of the particjilar person whose goods 
 the indictment charged that he did 
 steal. Reg. v. Olarke, 1 C. & K. 
 421— Coleridge. 
 
 An indictment for house-break- 
 ing, after charging the breaking 
 and entering in the usual form, 
 charged that the prisoner "forty- 
 two pieces of the current gold coin 
 of this realm, called sovereigns, of 
 the value of 42?., in the same dwell- 
 ing house then and there being found, 
 then and there feloniously did steal 
 and carry away, " is good, and the 
 words " then and there," in the last 
 allegation, are sufficient without the 
 words " in the same dwelHng-house" 
 being added to them. Beg. v. An- 
 drews, Car. & M. 121— Coleridge. 
 
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EVIDENCE AND TRIAL. 
 
 81 
 
 An indictment which charges 
 that the prisoner unlawfully broke 
 and entered the dwelling-house of 
 R. P., " with intent the goods and 
 chattels in the dwelling-house then 
 and there being then and there fel- 
 oniously to steal, take and carry 
 away," is good, although it does 
 not state whose goods the prisoner 
 intended to steal. Reg. v. Lawes, 
 1 C. & K. 62— Erskine. 
 
 The alterations made in the law 
 with respect to burglary, by 7 Will. 
 4 <fe 1 Vict. c. 86, as to the hours, 
 and as to the punishment, did not 
 make it necessary for an indictment 
 to that oifence to conclude contra 
 forman statuti, as. the alteration 
 with respect to the hours did not alter 
 the oifence, and the mere diminu- 
 tion of the punishment did not make 
 that conclusion necessary. Reg. v. 
 PoUy, 1 C. & K. 77— Erskine. 
 
 17. Evidence and Trial. 
 
 On an indictment for burglary 
 by breaking into a house in the 
 night-time, and stealing to the value 
 of ol. or more, the prisoner might 
 be convicted of burglary, or of 
 house-breaking, under 7 & 8 Geo. 
 4, c. 29, s. 12, or of stealing in a 
 dwelling-house to the value of bl. 
 Rex V. Gompton, 3 C. & P. 418— 
 Gaselee. 
 
 On an indictment for burglary, 
 the prisoner may be acquitted of 
 the breaking, and found guilty of 
 stealing in the dwelling-house. Rex 
 V. Withal, 1 Leach, C. C. 88; 2 
 East, P. C. 515, 517. 
 
 If a prisoner is charged with a 
 burglary and stealing the goods, the 
 prosecutor, on failing to prove that 
 these facts were committed on the 
 day laid in the indictment, cannot 
 be admitted to prove that the lar- 
 ceny was committed on a prior day. 
 Rex V. Vandercomb, 2 Leach, C. C. 
 708 ; 2 East, P. C. 519. 
 
 On an indictment for burglar- 
 iously breaking and entering a 
 dwelling-house, (omitting the words 
 " with intent to steal") and then 
 
 Fisu. Dig.— 6 Digitized by Microsoft® 
 
 and there stealing goods therein, the 
 prisoner may be well convicted of 
 the burglary if the larceny be prov- 
 ed : secus if not. Rex v. Furnival, 
 R. &R. C.C. 445. 
 
 Upon an indictment for burglary 
 and larceny against two, one may 
 be found guilty of the burglary and 
 larceny, and the other of the larceny 
 only. Rex v. Butterworth, R. & R. 
 C. C. 520. 
 
 When the felony is laid to con- 
 stitute the burglary, an acquittal 
 of the burglary is an acquittal of 
 stealing in the dwelling-house. Rex 
 V. Corner, 1 Leach, C. C. 36. 
 
 Where a party is indicted both 
 for burglary and feloniously steal- 
 ing in the dwelling-house, and is 
 acquitted of the burglary, but found 
 guilty of the stealing, the verdict 
 should be entered thus : " Jury 
 say not guilty of breaking and en- 
 tering the dwelling-house in the 
 night, but guilty of stealing the 
 (property) in the dwelling-house." 
 Rex V. Hungerford, 2 East, P. C. 
 518 ; 1 Leach, 0. C. 88. 
 
 On a charge of burglary, posses- 
 sion by the prisoners of part of the 
 stolen property very soon after the 
 burglary, with an account given of 
 it not reasonable or credible, is suf- 
 ficient prim& facie evidence, with- 
 out express evidence to falsify it. 
 It is so, however, only if, upon all 
 the circumstances in the case, the 
 account given is not reasonably 
 credible. Reg. v. Exall, 4 F. & F. 
 922— Pollock. 
 
 Upon a trial for breaking into a 
 booking-olEce at a railway station, 
 evidence was admitted that the 
 prisoners had, on the same night, 
 broken into three other booking- 
 offices belonging to three other sta- 
 tions on the same railway, the four 
 cases being all mixed up together. 
 Reg. V. Gobden, 3 P. & F. 833— 
 Bramwell. See Reg. v. Rearden, 4 
 F. &F.76— Willes. 
 
 In an indictment for burglary, 
 the entry was proved to have been 
 efiected by breaking open a window 
 
82 
 
 COINING. 
 
 at the back of a house : — Held, that 
 the correspondence of the prisoner's 
 shoe with an impression in the front 
 garden, not proved to have been 
 made during the night, was not any 
 evidence to go to the jury to show 
 a connexion with such entry. JReg. 
 V. Goots, 2 Cox, C. C. 188— Pol- 
 lock. 
 
 On the night following the com- 
 mission of a burglary, two boys 
 were found concealed in a corn- 
 chest in an open gig-house with 
 which they were not in any way 
 connected, and half a mile from the 
 house of the prosecutor. Outside 
 the corn-chest was found some of 
 the stolen property, and on the loft 
 over the gig-house was found an- 
 other portion of the stolen property : 
 — ^Held, that there was no evidence 
 to go to the jury of possession by 
 the boys of any of the stolen arti- 
 cles. Ih. 
 
 6. 
 
 7. 
 
 8. 
 
 9. 
 
 10. 
 
 11. 
 
 12. 
 
 13. 
 14. 
 
 15. 
 16. 
 ,17. 
 18. 
 19. 
 
 20. 
 21. 
 
 IX. Coining. 
 
 Statutes, 82. 
 
 Interpretation, 82. 
 
 What is Coining, 83. 
 
 Colouring, 8.5. 
 
 Impairing or Lightening Gold or 
 
 Silver Coin, 85. ]86. 
 
 Buying or Selling Counterfeit Coin, 
 Exchanging Coin at higher than its 
 
 Value, 87. 
 Importing or Exporting Counterfeit 
 
 Coin, 87. 
 Difadng Gold, Silver or Copper 
 
 Coin, 87. 
 Testing Genuineness of Gold or 
 
 Silver Coin, 87. 
 Counterfeiting and uttering Copper 
 
 Coin, 88. 
 Counterfeiting and uttering Foreign 
 
 Coin, 89. 
 Implements of Coining, 90. 
 Unlawful Possession of Base Coin, 
 
 Filings or Clippings, 93. 
 Uttering, 94. 
 
 When Offence complete, 97. 
 Euidence, 98. 
 Previous Conviction, 98. 
 Vuliditfi of Convictions and Com- 
 mitments, 99. 
 Conveying Coining Took or Coin 
 
 from the Mint without Authority, 
 
 99. 
 Power to seize Counterfeit Coin and 
 
 Coining Tools, 99. 
 
 22. Apprehension of Offenders, 99. 
 
 23. Prosecution and Trial of Offen- 
 
 ders, 100. 
 
 24. Punishment of Offenders, 100. 
 
 25. Costs of Prosecution, 100. 
 
 26. Actions against Persons acting jn 
 
 pursuance of the Statute, 101. 
 
 1. Statutes. 
 
 2 & 3 Will. 4, c. 34, repealed 8 
 & 9 Will. 3, c. 26, and 15 Geo. 2, 
 c. 28, 11 Geo. 3, c. 40, 37 Geo. 3, 
 c. 126, and 24 & 25 Vict. c. 95, s. 
 1, repeah 2 & 3 Will, 4, c. 34 ; but 
 s. 2 reserves repeal of enactments ex- 
 tending to the colonies. 
 
 The 16 & 17 Vict. c. 48, " ex- 
 " tends the punishment of offences 
 " committed against the coinage of 
 " the realm to the colonies." 
 
 The 24 & 25 Vict. c. 99, " is the 
 "act of 1861, consolidating the 
 " statute law of the United King- 
 " dom against offences relating to 
 " the coin, and which, by s. 43, 
 " commenced and took effect on the 
 " 1st November, 1861." 
 
 2. Interpretation. 
 Current Gold and Silver Coin.] — 
 By s. 1, "in the interpretation of 
 " and for the purposes of the act, 
 " the expression, ' the Queen's cur- 
 " rent gold or silver coin ' shall in- 
 " elude any gold or silver coin coin- 
 " ed in any of her Majesty's mints, 
 " or lawfully current, by virtue of 
 " any proclamation or otherwise, in 
 " any part of her Majesty's domin- 
 " ions, whether within the United 
 " Kingdom or otherwise. 
 
 Copper Coin.] — "And the ex- 
 " pression ' the Queen's copper coin' 
 " shall include any copper coin and 
 " any coin of bronze or mixed metal 
 "coined in any of her Majesty's 
 " mints, or lawfully cuirent by vir- 
 " tue of any proclamation or other- 
 " wise, in any part of her Majesty's 
 " said dominions." 
 
 False or Counterfeit Coin.] — "And 
 " the expression ' false or counter- 
 " feit coin, resembling or apparent- 
 
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WHAT IS COINING. 
 
 83 
 
 " ly intended to resemble or pass 
 " for any of the Queen's current 
 " gold or silver coin,' shall include 
 " any of the current coin which shall 
 " have been gilt, silvered, washed, 
 " coloured, or cased over, or in any 
 " manner altered, so as to resemble 
 " or be apparently intended to re- 
 " semble or pass for any of the 
 " Queen's current coin of a higher 
 " denomination." 
 
 Gurrent Coin.] — "And the ex- 
 " pression ' the Queen's current coin ' 
 " shall include any coin coined in 
 " any of her Majesty's mints, or 
 " lawfully current, by virtue of any 
 " proclamation or otherwise, in any 
 " part of her Majesty's said domin- 
 " ions, and whether made of gold, 
 " silver, copper, bronze, or mixed 
 " metal." 
 
 What Shallhe Possession. 1 — " And 
 " where the having any matter in 
 " the custody or possession of any 
 " person is mentioned in this act, it 
 " shall include, not only the having 
 " of it by himself in his personal 
 " custody or possession, but also the 
 " knowingly and wilfully having it 
 " in the actual custody or posses- 
 " sion of any other person, and also 
 " the knowingly and wilfully hav- 
 " ing it in any dwelling-house or 
 " other building, lodging, apart- 
 " ment, field or other place, open 
 " or inclosed, whether belonging to 
 " or occupied by himself or not, and 
 " whether such matter shall be so 
 " had for his own use or benefit or 
 " for that of any other person." 
 
 The defendant was indicted for 
 obtaining a die impressed as a sov- 
 ereign. 
 
 The 24 & 25 Vict. c. 99, s. 24, 
 makes it a felony to have in custody, 
 or possession (inter alia), a die im- 
 pressed with the apparent resem- 
 blance of both or either of the sides 
 of any of the Queen's current gold 
 or silver coin, without lawful au- 
 thority or excuse, (the proof where- 
 of shall lie on the accused.) 
 
 Held, first, that an indictment 
 under this section should allege pos- 
 session without lawful authority or 
 excuse, but that an indictment 
 which charged possession without 
 lawful excuse was sufficient, as ex- 
 cuse would include authority. 
 
 Secondly, that the words "the 
 proof whereof shall lie on the ac- 
 cused," only shift the burden of 
 proof, and do not alter the char- 
 acter of the offence : 
 
 That the fact that the mint au- 
 thorities, upon information forward, 
 ed to them, gave authority to the 
 die-maker to make the die, and that 
 the police gave permission to him 
 to give the die to the prisoner who 
 ordered him to make, did not con- 
 stitute lawful authority or excuse 
 for prisoner's possession of the die. 
 Reg. V. Harvey, 11 Cox. C. C. 662. 
 
 3. What is Gaining. 
 
 By 24 & 25 Vict. c. 99, s. 2, 
 " whosoever shall falsely make or 
 " counterfeit any coin resembling or 
 " apparently intended to resemble 
 " or pass for any of the Queen's our- 
 " rent gold or silver coin, shall, in 
 " England and Ireland, be guilty 
 "of felony, and in Scotland of a 
 " high crime and offence, and being 
 " convicted thereof, shall be liable, 
 " at the discretion of the court, to 
 " be kept in penal servitude for life, 
 " or for any term nat less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not , 
 " exceeding two years, with or 
 " without hard labour, and with or 
 " or without solitary confinement." 
 [Former provision, 2 & 3 Will. 4, 
 c. 34, s. 3. 
 
 By s. 13, " whosoever shall, with 
 " intent to defraud, tender, utter, or 
 " put off, as or for any of the Queen's 
 " cui-rent gold or silver coin, any 
 " coin not being such current gold 
 " or silver coin, or any medal or 
 " piece of metal or mixed metals 
 " resembling in size, figure, and col- 
 " our the current coin as or for 
 " which the same shall be so ten- 
 
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84 
 
 CODsriNG. 
 
 "dered, uttered, or put off, such 
 " coin, medal, or piece of metal or 
 " mixed metals so tendered, uttered, 
 " or put off being of less value than 
 " the current coin as or for which 
 " the same shall be so tendered, ut- 
 " tered or put off, shall, in England 
 " and Ireland, be guilty of a mis- 
 " demeanor, and in Scotland of a 
 " crime and offence, and being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " imprisoned for any term not ex- 
 " ceeding one year, with or without 
 " hard labour, and with or without 
 " solitary confinement." 
 
 On an indictment under 2 & 3 
 Will. 4, c. 34, s. 7, for uttering a 
 piece of false and counterfeit coin, 
 apparently intended to resemble 
 and pass for a piece of the Queen's 
 good and legal current coin, it is a 
 question for the jury whether the 
 coin produced supported the indict- 
 ment, and if they should be of opin- 
 ion that the coin was not intended 
 by the maker to pass as good coin, 
 they should acquit. lieg. v. Byrne, 
 6 Cox, C. C. 475. (Ir.) C. C. R. 
 
 A person was indicted for utter- 
 ing a counterfeit coin, intended to 
 resemble and pass for a groat. -All 
 the witnesses for the prosecution, 
 except the inspector of coin for the 
 mint, called it a fourpenny piece. 
 The inspector called it a groat, and 
 said he believed that it had that 
 name from the earliest period. He 
 added, that the original groat of 
 Edward the Third's reign was larg- 
 er and heavier than the coin in 
 question ; and that, in the Queen's 
 proclamation, these coins were call- 
 ed both groats and fourpenny- 
 pieees. The proclamation was not 
 produced, and the inscription on the 
 coin itself was fourpence : — Held, 
 that if the jury, from their own 
 knowledge of the EngUsh language 
 without considering any evidence 
 at all, was of opinion that a groat 
 and fourpenny-piece were the same, 
 prisoner was rightly indicted, and 
 might be convicted. Beg. v. Gon- 
 
 neU, 1 C. & K. 190 — Maule and 
 Erskine. 
 
 A person was indicted for utter- 
 ing a medal resembling in size, fig- 
 ure, and colour one of the Queen's 
 current gold coins, called a half 
 sovereign. At the trial the medal 
 was produced by a -ndtness, who 
 stated that it was the same in diam- 
 eter as a half sovereign, and some- 
 what similar in colour ; that on the 
 obverse was the head of the Queen 
 similar to that on a half sovereign, 
 but that the legend was different ; 
 when about to describe the reverse, 
 the coin accidentally dropped and 
 was lost. The medal had not been 
 shewn to the jury, and secondary 
 evidence was not given of what was 
 on the reverse : — Held, that there 
 was evidence to go to the jury that 
 the medal resembled in figure a cur- 
 rent coin. Beg. v. Bohinson, L. & 
 C. 604 ; 10 Cox, C. C. 107 ; 11 Jur., 
 N . S. 452; 34 L. J., M. C, 176 ; 13 
 W. R. 727 ; 12 L. T., N. S. 501. 
 
 It is not necessary, to constitute 
 the offence of coining, that there 
 should be an impression on the 
 counterfeit, if it resembles the com- 
 mon worn coin. Bex v. Welch. 1 
 East, P. C. 87, 164; 1 Leach C. C. 
 364. 
 
 A counterfeit shilling produced 
 in evidence, although it is quite 
 smooth, and there is no impression 
 of any sort discernible on it, will 
 support an indictment for counter- 
 feiting to the similitude of the legal 
 coin. lb. 
 
 To make a roimd blank like the 
 smooth shillings in circulation, the 
 origiaal impression on which has 
 been effaced by wear, is counterfeit- 
 ing to the likeness and similitude of 
 the good legal and current coin of 
 the realm called a shilling. Bex v. 
 Wilson, 1 Leach, C. C. 285. 
 
 It is a question of fact whether or 
 not counterfeit coin was made to re- 
 semble the real coin. Bex v. Welch 
 1 East, P. C. 87, 164 ; 1 Leach, c! 
 C. 364. 
 
 Proof that a man occasionally 
 
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COLOUEING-IMPAIRING. 
 
 85 
 
 visited coiners ; that the rattling of 
 money was occasionally heard with 
 them; that he was seen counting 
 something, as if it was money, when 
 he left them ; that on coming to 
 their lodgings just after the appre- 
 hension he endeavored to escape, 
 and was found to have bad money 
 about him ; is not sufficient evidence 
 to implicate him as counselling, pro- 
 curing, aiding, and abetting the coin- 
 ers. Sex V. Isaacs, 1 Russ. C & M. 
 62— Bayley. 
 
 4. Colouring. 
 By 24 & 25 Vict. c. 99, s. 3, 
 " whosoever shall gild or silver, or 
 " shall, with any wash or materials 
 " capable of producing the colour or 
 " appearance of gold or silver, or by 
 " any means whatsoever, wash, case 
 " over, or colour any coin whatso- 
 " ever, resembling or apparently in- 
 " tended to resemble or pass for any 
 " of the Queen's current gold or sil- 
 " ver coin ; or shall gild or silver, 
 " or shall, with any wash or mate- 
 " rials capable of producing the col- 
 " our or appearance of gold or of 
 " silver, or by any means whatsoev- 
 " er, wash, case over, or colour any 
 " piece of silver or copper, or of 
 " coarse gold or coarse silver, or of 
 " any metal or mixture of metals re- 
 " spectively, being of a fit size and 
 " figure to be coined, and with in- 
 " tent that the same shall be coined 
 " into false and counterfeit coin re- 
 " sembling or apparently intended 
 " to resemble or pass for any of the 
 " Queen's current gold or silver 
 " coin ; or shall gild, or shall, with 
 " any wash or materials capable of 
 " producing the colour or appearance 
 " of gold or by any means whatsoev- 
 " er, wash, case over or colour any of 
 " the Queen's current silver coin, or 
 " file or in any manner alter such 
 •' coin, with intent to make the same 
 " resemble or pass for any of the 
 " Queen's current gold coin ; or 
 " shall gild or silver, or shall with 
 " any wash or materials capable of 
 " producing the colour or appear- 
 
 " ance of gold or silver, or by any 
 " means whatsoever, wash, case 
 " over, or colour any of the Queen's 
 ' ' current copper coin, or file or in any 
 " manner alter such coin, with in- 
 " tent to make the same resemble 
 for any of the Queen's 
 
 Digitized by Microsoft® 
 
 " current gold or silver coin, shall, 
 " in England and Ireland, be guilty 
 " of felony, and in Scotland of a 
 " high crime and ofience, and, being 
 " convicted thereof, shall be liable, 
 " at the discretion of the court, to 
 " be kept in penal servitude for life, 
 " or for any term not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour, and with or with- 
 " out solitary confinement.". (For- 
 mer provision, 2 & 3 Will. 4, c. 34, 
 s. 4.) 
 
 An indictment charging the gild- 
 ing sixpences with materials capa- 
 ble of producing the colour of gold, 
 is good, and supported by proof of 
 colouring sixpences with gold. Reg. 
 V. Turner, 2 M. C. C. 42. 
 
 Preparing blanks with such ma- 
 terials, as when rubbed would make 
 them resemble the real coin, was a 
 colouring within 8 & 9 Will. 3, c. 
 26, before the resemblance has been 
 produced by such friction. Rex v. 
 Case, 1 East, P. C. 165 ; 1 Leach, 
 C. C. 154, n. 
 
 So, bringing to thtf surface the la- 
 tent silver in a blank of mixed met- 
 al, by dipping it in aquafortis 
 which corrodes the base metal, 
 was a colouring within that stat- 
 ute. Rex V. Lavy, 1 East, P. C. 
 166 ; 1 Leach, C. C. 153. And see 
 Rex V. Harris, 1 Leach, C. C. 135. 
 
 5. Impairing or Lightening Gold or 
 Silver Coin. 
 By 24 & 25 Vict. c. 99, s. 4, " who- 
 " soever shall impair, diminish or 
 " lighten any of the Queen's current 
 " gold or silver coin, with intent 
 " that the coin so impaired, dimin- 
 " ished or lightened may pass for the 
 " Queen's current gold or silver coin, 
 
86 
 
 COINING. 
 
 " shall, in England and Ireland, be 
 " guilty of felony, and in Scotland 
 " of a high crime and offence, and 
 " being convicted thereof shall be 
 " liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for any term not exceeding 
 "fourteen years, and not less than 
 "five years (27 & 28 Vict, c 47), 
 " or to be imprisoned for any term 
 " not exceeding two years, with or 
 "without hard labour, and with 
 " or without solitary confinement." 
 (Former provision, 2 & 3 Will. 4, c. 
 34, s. 5.) 
 
 6. Buying or selling Counterfeit 
 Coin. 
 
 By 24 & 25 Vict. c. 99, s." 6, 
 " whosoever, without lawful author- 
 " ity or excuse (the proof whereof 
 "shall lie on the party accused), 
 " shall buy, sell, receive, pay, or put 
 " off, or offer to buy, sell, receive, 
 " pay, or put off, any false or coun- 
 " terfeit coin, resembling or appar- 
 " ently intended to resemble or pass 
 " for any of the Queen's current 
 " gold or silver coin, at or for a low- 
 " er rate or value than the same im- 
 " ports or was apparently intended 
 " to import, shall, in England and 
 " Ireland, be guilty of felony, and 
 " in Scotland of a high crime and 
 " offence, and being convicted there- 
 " of shall be liable, at the discretion 
 " of the court, to be kept in penal 
 " servitude for life, or for any term 
 " not less than five years (27 & 28 
 " Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard la- 
 " hour, and with or without solitary 
 " confinement ; " 
 
 " And in any indictment for any 
 " such offence, it shall be sufficient 
 " to allege that the party accused 
 " did buy, sell, receive, pay, or put 
 " off, or did offer to buy, sell, re- 
 " oeive, pay, or put off, the false or 
 " counterfeit coin at or for a lower 
 " rate or value than the same imports 
 " or was apparently intended to im- 
 
 ' ' port, without alleging at or for what 
 " rate, price or value the same was 
 "bought, sold, received, paid, or 
 " put off, or offered to be bought, 
 " sold, received, paid, or put off." 
 {^Former provisions, 8 & 9 Will. 3, c. 
 26, s. 6, and 2 & ^ Will. 4, c. 34, 
 s. 6.) 
 
 An indictment on 8 & 9 Will. 3, 
 c. 26, s. 6, stated that five counter- 
 feit shillings were paid and put off 
 for two shillings ; the proof was that 
 five bad shillings were sold for half- 
 a-crown : — Held, that the variance 
 was fatal, as it was a contract which 
 must be correctly proved as laid. 
 Rex V. Joyce, Car. C. L. 184 — 
 Thompson and Heath. 
 
 In an indictment for putting off 
 counterfeit money, at a lower rate 
 than its denomination imports, it 
 was alleged that the prisoner put off 
 a counterfeit sovereign and three 
 counterfeit shillings for the sum of 
 five shillings ; the proof was, that 
 the prisoner said he would let the 
 witness have a bad sovereign at 
 four shillings, and three bad shil- 
 lings at one shilling, and the witness 
 paid for them with two good half- 
 cro\^'ns : — Held, that this proof sup- 
 ported the allegation. Rex v. Hed- 
 ges, 3 C. & P. 410 — Vaughan. 
 
 Where, on a bargain for the 
 sale of counterfeit money, the price 
 had been agreed upon and the pris- 
 oner had produced the coin, but the 
 complete transfer was prevented by 
 the appearance of the police officers: 
 — Held, that it did not amount to a 
 putting off vnthin 8 & 9 Will. 3, c. 
 26. Rex V. Wooldridge, 1 Leach, 
 C.C. 307; 1 East, P. C. 169. 
 
 An indictment on 8 & 9 Will. 3, 
 c. 26, s. 6, for putting off bad mon- 
 ey, must have stated that it was 
 " not cut in pieces." Rex v. Palmer, 
 1 Leach, C. C. 102. 
 
 In an indictment for putting off 
 counterfeit money, the names of the 
 persons to whom it was put off 
 ought to be set out. Anon. 1 East 
 P. C. 180— Holt. 
 
 Digitized by Microsoft® 
 
TESTING GENUINENESS. 
 
 87 
 
 7. Exchanging Coin at higher, than 
 
 its Value. 
 The exchanging guineas for bank- 
 notes, taking the guineas in such ex- 
 change at a higher value than they 
 were current for by the king's proc- 
 lamation, was not an offence against 
 5 & 6 Edw. 6, c. 19. {Repealed hy 
 56 Geo. 3, c. 68.) Rex\.J)e Yonge, 
 14 East, 402. 
 
 8. Importing or Exporting Coun- 
 
 terfeit Coin. 
 
 Importing.^ — By 24 & 25 Vict. 
 e. 99, s. 7, "whosoever, without 
 " lawful authority or excuse (the 
 " proof whereof shall lie on the 
 "party accused), shall import or 
 " receive into the United Kingdom, 
 " from beyond the seas, any false or 
 "counterfeit coin resembling or ap- 
 " parently intended to resemble or 
 " pass for any of the Queen's cur- 
 " rent gold or silver coin, knowing 
 " the same to be false or counter- 
 " feit, shall, in England and Ireland 
 " be guilty of felony, and in Scot- 
 " land of a high crime and offence, 
 " and being convicted thereof, shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for life, or for any term not 
 " less than five years (27 & 28 Vict. 
 " c. 47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour, and 
 " with or -without solitary confine- 
 " ment." {Former provision, 2 & 3 
 Will. 4, c. 34, s. 6.) 
 
 Exporting.'] — By s. 8, " whoso- 
 " ever, without lawful authority or 
 " excuse (the proof whereof shall 
 " Ue on the party accused), shall 
 " export, or put on board any ship, 
 " vessel or boat for the purpose of be- 
 " ing exjjorted from the United King- 
 " dom, any false or counterfeit coin, 
 " resembling or apparently intended 
 " to resemble or pass for any of the 
 " Queen's current coin, knowing the 
 " same to be false or counterfeit, 
 " shall, in' England and Ireland, be 
 
 " guilty of a misdemeanor, and be- 
 " ing convicted thereof shall be lia- 
 " ble, at the discretion of the court, 
 " to be imprisoned for any term not 
 " exceeding tWo years, with or 
 " without hard labour, and with or 
 " without solitary confinement." 
 
 9. Defacing Gold, Silver or Copper 
 
 Coin. 
 
 By 24 & 25 Vict. c. !)9, s. 16, 
 " whosoever shall deface any of the 
 " Queen's current gold, silver or 
 '■ copper coin, by stamping thereon 
 " any names or words, whether such 
 " coin shall or shall not be thereby 
 " diminished or lightened, shall, in 
 " England and Ireland be guilty of 
 " a* misdemeanor, and in Scotland 
 " of a crime and offence, and, being 
 " convicted thereof, shall be liable, 
 " at the discretion of the court, to be 
 "imprisoned for any term not ex- 
 " ceeding one year, with or without 
 " hard labour." {Former provision, 
 16 & 17 Vict. c. 102, s. 1.) 
 
 By s. 17, " no tender of payment 
 " in money made in any gold, silver 
 " or copper coin so defaced by 
 " stamping as in the last preceding 
 " section mentioned shall be allow- 
 " ed to be a legal tender ; and who- 
 " soever shall tender, utter or put 
 " off any coin so defaced, shall on 
 " conviction thereof before two jus- 
 " tiees, be liable to forfeit and pay 
 " any sum not exceeding 40s. : pro- 
 " vided that it shall not be lawful 
 " for any person to proceed for any 
 " such last-mentioned penalty with- 
 " out the consent, in England or 
 " Ireland, of her Majesty's attorney- 
 " general for England or Ireland 
 " respectively, or in Scotland of the 
 " lord advocate." {Former, provis- 
 ion, 16 Ss 17 Vict.c. 102, s. 2.) 
 
 10. Testing Genuineness of Gold or 
 
 /Silver Coin. 
 
 By 24 & 25 Vict. c. 99, s. 26, 
 " where any coin shall be tendered 
 " as the Queen's current gold orsil- 
 " ver coin to any person who shall 
 " suspect the same to be diminish- 
 
 Digitized by Microsoft® 
 
COINING. 
 
 " ed otherwise than by reasonable 
 "wearing, or to be counterfeit, it 
 " shall be lawful for such person to 
 " cut, break, bend or deface such 
 •' coin, and if any coin so cut, brok- 
 " en, bent or defaced shall appear 
 " to be diminished otherwise than 
 " by reasonable wearing, or to be 
 " counterfeit, the person tendering 
 " the same shall bear the loss there- 
 " of; but if the same shall be of due 
 " weight, and shall appear to be 
 " lawful coin, the person cutting, 
 " breaking, bending or defacing the 
 " same is hereby required to receive 
 " the same at the rate it was coined 
 " for ; and if any dispute shall arise 
 " whether the coin so cut, broken, 
 "bent or defaced be diminished in 
 " manner aforesaid, or counterfeit, 
 "it shall be heard and finally de- 
 " termined in a summary manner 
 " by any justice of the peace, who 
 " is empowered to examine upon 
 " oath as well the parties as any 
 " other person, in order to the de- 
 " cision of such dispute ; and the 
 " tellers at the receipt of her Maj- 
 " esty's Exchequer, and their dep- 
 " uties and clerks, and the receivers- 
 " general of every branch of her 
 " Majesty's revenue, are hereby re- 
 " quii-ed to cut, break, or deface, or 
 " cause to be cut, broken or defaced, 
 " every piece of counterfeit or un- 
 " lawfully diminished gold or silver 
 " coin which shall be tendered to 
 " them in payment for any part of 
 " her Majesty's revenue." [Former 
 provision, 2 & 3 Will. 4, c. 34, s. 
 13.) 
 
 11. Counterfeiting and vttering 
 Copper Coin. 
 
 Counterfeiting. 'I — By 24 & 25 Vict. 
 c. 99, s. 14, " whosoever shall false- 
 " ly make or counterfeit any coin, 
 " resembling or apparently intended 
 " to resemble or pass for any of the 
 " Queen's current copper coin ; and 
 " whosoever, without lawful author- 
 " ity or excuse (the proof whereof 
 "shalllie on the party accused), 
 " shall knowingly make or mendj 
 
 " or begin or proceed to make or 
 " mend, or buy or sell, or have in 
 " his custody or possession, any in- 
 " strument, tool, or engine adapted 
 " and intended for the counteiieit- 
 " ing any of the Queen's current 
 " copper coin ; or shall buy, sell, 
 " receive, pay, or put oiF, or oifer 
 " to buy, sell, receive, pay, or 
 " put off, any false or counter- 
 " terfeit coin, resembling, or appar- 
 " ently intended to resemble or pass 
 " for any of the Queen's current 
 " copper coin, at or for a lower rate 
 " or value than the same imports, 
 " or was apparently intended to im- 
 " port, shall, in England and Ire- 
 " land, be guilty of felony, and in 
 " Scotland of a high crime and of- 
 " fence, and being convicted thereof, 
 " shall be liable, at the disci:etion 
 " of the coiirt, to be kept in penal 
 " servitude for any term not exceed- 
 " ing seven years, and not less than 
 " five years (27 & 28 Vict. c. 47), 
 " or to be imprisoned for any term 
 " not exceeding two years, with or 
 " without hard labour, and with 
 " or without solitary confinement. 
 Former provision, 2 & 3 Will. 4. c. 
 34, s. 12.) 
 
 Uttering.] — By s. 15, " whoso- 
 
 ■ ever shall tender, utter or put off 
 ' any false or counterfeit coin, re- 
 sembling or apparently intended 
 to resemble or pass for any of 
 the Queen's current copper coin, 
 knowing the same to be false or 
 counterfeit, or shall have in his 
 custody or possession three or 
 more pieces of false or counterfeit 
 coin, resembling, or apparently 
 
 ' intended to resemble or pass for 
 
 ■ any of the Queen's current copper 
 ' coin, knowing the same to be false 
 
 or counterfeit, and with intent to 
 utter or put off the same or any 
 of them, shall, in England and Ire- 
 land, be guilty of a misdemeanor, 
 and in Scotland of a crime and 
 offence, and being convicted there- 
 • of, shall be liable, at the discretion 
 of the court, to be imprisoned for 
 
 Digitized by Microsoft® 
 
FOREIGN COESr. 
 
 89 
 
 " any term not exceeding one yeai", 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment." 
 
 JBefore these Enactments.] — Utter- 
 ing or tendering in payment coun- 
 terfeit copper money was not an in- 
 dictable offence. Mexy. Cirwan, 1 
 East, P. C. 182. 
 
 12. Counterfeiting andvUering For- 
 eign Coin. 
 
 Gold and Silver.]— B^ 24 & 25 
 Vict. c. 99, s. 18, " whosoever shall 
 " make or counterfeit any kind of 
 " coin, not being the Queen's cur- 
 " rent gold or silver coin, but re- 
 " sembling or apparently intended 
 " to resemble or pass for any gold 
 " or silver coin of any foreign prince, 
 " state, or country, shall, in Eng- 
 " land and Ireland, be guilty of fel- 
 " ony, and in Scotland of a high crime 
 " and offence, and being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, tc^ be kept 
 "in penal servitude for any term 
 " not exceeding seven years, and 
 " not less than five years (27 & 28 
 "Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard la- 
 " hour, and with or without soli- 
 " tary confinement." (Former pro- 
 vision, 37 Geo. 3, c. 126, s. 2.) 
 
 By s. 19, " whosoever, without 
 " lawful authority or excuse (the 
 "proof whereof shall lie on the 
 " party accused), shall bring or re- 
 " ceive into the United Kingdom 
 " any such false or counterfeit coin, 
 " resembling or apparently intended 
 " to resemble or pass for any gold 
 " or silver coin of any foreign 
 " prince, state, or country, knowing 
 " the same to be false or counter- 
 " feit, shall, in England and Ireland, 
 " be guilty of felony, and, being 
 " convicted thereof, shall be liable, 
 " at the discretion of the court, to 
 " be kept in penal servitude for any 
 " term not exceeding seven years, 
 " and not less than five years (27 
 
 "& 28 Vict, c.47), or to be im- 
 " prisoned for any term not exceed- 
 " ing two years, with or without 
 " hard labour, and with or without 
 " solitary confinement." (Former 
 provision, 37 Geo. 3, c. 126, s. 3.) 
 
 Uttering.'] — By s. 20, " whoso- 
 " ever shall tender, utter, or put off 
 " any such false or counterfeit coin, 
 " resembling or apparently intended 
 " to resemble or pass for any gold 
 " or silver coin of any foreign 
 " prince, state, or country, knowing 
 " the same to be false or counter- 
 "rfeit, shall, in England and Ire- 
 " land, be guilty of a misdemeanor, 
 " and being convicted thereof shall 
 " be liable, at the discretion of the 
 " court, to be imprisoned for any 
 " term not exceeding six months, 
 " with or without hard labour." 
 [Former provision, Zl Geo. 3, c. 126, 
 S.4.) 
 
 Second and Third Offences.] — 
 By s. 21, " whosoever, having been 
 " so convicted as in the last preced- 
 " ing section mentioned, shall after- 
 " wards commit the like offence of 
 " tendering, uttering, or putting off 
 " any such false or counterfeit coin 
 " as aforesaid, knowing the same to 
 " be false or counterfeit, shall, in 
 " England and Ireland, be guilty 
 " of a misdemeanor, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 '' imprisoned for any term not ex- 
 " ceeding two years, with or with- 
 " out hard labour, and with or 
 " without solitary confinement ; and 
 "whosoever, "having been so con- 
 " victed of a second offence, shall 
 " afterwards commit the Uke offence 
 " of tendering, uttering, or putting 
 " off any such false or counterfeit 
 " coin as aforesaid, knowing the 
 " same to be false or counterfeit, 
 " shall, in England and Ireland, be 
 " guilty of felony, and in Scotland 
 " of a high crime and offence, and, 
 " being convicted thereof, shall be 
 " liable, at the discretion of the 
 
 Digitized by Microsoft® 
 
90 
 
 COININ-G. 
 
 " court, to be kept in penal serv- 
 " itude for life, or for any term not 
 "less than three years; or to be 
 " imprisoned for any tei-m not ex- 
 ' ' ceeding two years, with or with- 
 " out hard labour, and with or 
 " mthout solitary confinement." 
 
 Foreign Copper Coin.] — By s. 22, 
 " whosoever shall falsely make or 
 -" counterfeit any kind of coin, not 
 " being the Queen's current coin, 
 " but resembling or apparently in- 
 " tended to resemble or pass for any 
 " copper coin, or any other coin 
 " made of any metal or mixed me't- 
 " als of less value than the silver 
 "coin of any foreign prince, state, 
 " or country, shall, in England and 
 "Ireland, be guilty of a misde- 
 " meaner, and being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, for the first 
 " ofiTence, to be imprisoned for any 
 " term not exceeding one year, and 
 " for the second ofience, to be kept 
 " in penal servitude for any term 
 " not exceeding seven years, and 
 " not less than five years (27 & 28 
 " Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard la- 
 " bour, and with or without solitary 
 " confinement." (Former provision, 
 43 Geo. 3, c. 139, s. 3.) 
 
 Unlawful Possession.] — By s. 23, 
 " whosoever, without lawful author- 
 " ity or excuse (the proof whereof 
 "shall lie on the party accused), 
 " shall have in his custody or posses- 
 " sion any greater number of pieces 
 " than five pieces of false or coun- 
 " terfeit coin, resembling or appar- 
 " ently intended to resemble or pass 
 " for any gold or silver coin of any 
 " foreign prince, state, or country, 
 " or any such copper or other coin 
 "as in the last preceding section 
 " mentioned, shall, on conviction 
 "thereof before any justice of the 
 " peace, forfeit and lose all such false 
 " and counterfeit coin, which shall 
 " be cut in pieces and destroyed by 
 
 " order of justice, and shall for every 
 " such ofiTence forfeit and pay any 
 " sum of money not exceeding 40s., 
 " nor less than 10s. for every such 
 " piece of false and counterfeit coin 
 " which shall be found in the cus- 
 " tody or possession of such person, 
 " one moietyto the informer, and the 
 " other moiety to the poor of the 
 " parish where such ofifence shall be 
 " committed ; and in case any such 
 " penalty shall not be forthwith 
 " paid, it shall be lawful for any 
 " such justice to commit the person 
 " who shall have been adjudged to 
 " pay the same to the common gaol 
 " or house of correction, there to be 
 " kept to hard labour for the space 
 " of three months, or until such 
 " penalty shall be paid." (Former 
 provisions, 37 Geo. 3, c. 126, s. 6, 
 and 43 Geo. 3, c. 139, s. 6.) 
 
 13. Implements of Coining. 
 By 24 & 25 Vict. c. 99, s. 24, 
 whosoever, without lawful au- 
 thority#)r excuse (the proof where- 
 of shall lie on the party accused), 
 shall knowingly make or mend, or 
 begin or proceed to make or mend, 
 or buy or sell, or have in his cus- 
 tody, or possession, any puncheon, 
 counter puncheon, matrix, stamp, 
 die, pattern, or mould in or upon 
 which there shall be made or im- 
 pressed, or which will make or 
 impress, or which shall be adapt- 
 ed and intended to make or im- 
 press, the figure, stamp, or appar- 
 ent resemblance of both or either 
 of the sides of any of the Queen's 
 current gold or silver coin, or of 
 any coin of any foreign prince, 
 state, or country, or any part or 
 parts of both or either of such 
 sides ; or shall make or mend, or 
 begin or proceed to make or mend, 
 or shall buy or sell, or have in his 
 custody or possession, any edger, 
 edging or other tool, collar, in- 
 strument, or engine adapted and 
 intended for the marking of coin 
 round the edges with letters, grain- 
 ings, or other marks, or figures 
 
 Digitized by Microsoft® 
 
IMPLEMENTS OF COINING. 
 
 91 
 
 " apparently resembling those on 
 " the edges of any such coin as in 
 " this section aforesaid, knowing the 
 " same to be so adapted and intend- 
 " ed as aforesaid ; or shall make or 
 " mend, or begin or proceed to make 
 " or mend, or shall buy or sell, or 
 " have in his custody or possession, 
 " any press for coinage, or any cut- 
 " ting engine for cutting by force 
 " of a screw or of any other contriv- 
 ^' ance, round blanks out of gold, 
 " silver, or other metal or mixture 
 " of metals, or any other machine, 
 " knowing such press to be a press 
 " for coinage, or knowing such en- 
 " gine or machine to have been 
 " used, or to be intended to be used, 
 " for or in order to the false making 
 " or counterfeiting of any such coin 
 " as in this section aforesaid, shall, 
 " in England and Ireland, be guilty 
 " of felony, and, being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for life, or for any 
 " term not less than five years (27 & 
 " 28 Vict. c. 47), or to be impris- 
 " oned for any term not exceeding 
 " two years, with or without hard 
 " labour, and with or without soli- 
 " tarv confinement." {Former pro- 
 visions, 2 & 3 Will. 4, c. 34, s. 10, 
 and 8 &9 Will. 3, c. 26. 
 
 A galvanic battery is a machine 
 within the meaning of the 24 & 25 
 Vict. c. 99, s. 24. Heg. v. Gover, 
 9 Cox, C. C. 282— Chambers, C. S. 
 
 The prisoner employed a die- 
 sinker to make, for a pretended in- 
 nocent purpose, a die calculated to 
 make shillings. The die-sinker, sus- 
 pecting fraud, informed the com- 
 missioners of the mint, and, under 
 their directions, made the die, for 
 the purpose of detecting the pris- 
 oner : — Held, that the die-sinker 
 was an innocent agent, and the pris- 
 oner rightly convicted as a princi- 
 pal under 2 & 8 Will- 4, c. 34, s. 
 10. Meff. V. Bannen, 2 M. C. C. 
 309 ; 1 C. & K. 295. 
 
 A., vnth the intent of coining 
 counterfeit half dollars of Peru, 
 
 procured dies in this country for 
 stamping and imitating such coin. 
 He was apprehended before he had 
 obtained the metal and chemical 
 preparations necessary for making 
 counterfeit coin : — Held, that the 
 procuring the dies was an act in 
 furtherance of the criminal purpose, 
 sufficiently proximate to the ofience 
 intended, and sufficiently evidencing 
 the criminal intent to support an in- 
 dictment founded on it for a misde- 
 meanor, although the same facts 
 would not have supported an in- 
 dictment for attempting to make 
 counterfeit coin. Reg. v. Roberts, 
 Dears. C. C. 539 ; 1 Jur., N. S. 
 1094; 25L. J., M. C. 17; 7 Cox, 
 C. C. 39. 
 
 The jury also found that he in- 
 tended to make only a few counter- 
 feit coins in England, with a view 
 merely of testing the completeness 
 of the apparatus before he sent it 
 out to Peru : — Held, that even to 
 make a few coins in England with 
 that object, would be to commit 
 the oifence of making counterfeit 
 coins within the statute. Ih. 
 
 An indictment that the prisoner 
 feloniously had in his possession a 
 mould, " upon which mould were 
 made and impressed the figure and 
 resemblance " of the obverse side of 
 a sixpence, is bad, as not sufficiently 
 showing that the impression was on 
 the mould at the time when the pris- 
 oner had it in his possession; but a 
 fresh indictment with the words 
 " then and there " before the words 
 " made and impressed," is good. 
 Reg. V. Richmond, 1 C. & K. 240; 
 1 Cox, C. C. 9— Rolfe. 
 
 Where a coining mould is made 
 and impressed to resemble the ob- 
 verse of a coin, which is partly de- 
 faced by wear, the indictment 
 should be in the form above men- 
 tioned, as the words of the 2 & 3 
 Will. 4, c. 34, s. 10, as to. moulds 
 to resemble part of the obverse of a 
 coin, relate to cases where several 
 moulds put together would make 
 the obverse of the coin. lb. 
 
 ■ Digitized by Microsoft® 
 
92 , 
 
 COINING. 
 
 A first count charged the pris- 
 oners with having in their posses- 
 sion a mould intended to impress 
 the stamp of the reverse side of a 
 shilling ; the second stated, that the 
 mould was intended to impress the 
 obverse side ; the third stated, that 
 it was intended to impress part or 
 parts of the reverse side ; and the 
 fourth stated the same as to the ob- 
 verse side. A verdict of guilty hav- 
 ing been recorded, a motion was 
 made in arrest of judgment, on the 
 ground that the two last counts 
 were bad for uncertainty, where- 
 upon the judge directed another in- 
 dictment to be preferred. The sec- 
 ond indictment contained the two 
 first counts of the previous one ; a 
 third and fourth stated, that the 
 mould was intended to impress 
 parts of the obverse and parts of 
 the reverse sides ; a fifth and sixth 
 used the word " part " instead of 
 parts. The prisoner pleaded autre- 
 fois convict. The twelve judges 
 decided that the plea was bad, and 
 confirmed the second conviction. 
 Hex V. Phillips, 1 Jur., 427. 
 
 Where coining implements were 
 found in the house occupied by a 
 man, his wife, and a child ten years 
 of age, the jury was directed to ac- 
 quit the child of a felonious posses- 
 sion. JReg. V. Boober, 4 Cox, C. 
 C. 272. 
 
 If coining implements are found 
 in a house occupied by a man and 
 his wife, the presumption is, that 
 they are in possession of the hus- 
 band alone : unless there are circum- 
 stances to shew that the wife was 
 acting separately and without her 
 husband's sanction, they cannot 
 both be convicted. Ih. 
 
 The fact of a wife attempting 
 to break up coining implements at 
 the time of her husband's appre- 
 hension, if done with the object of 
 screening him, is no evidence of a 
 guilty possession. Ih. 
 
 The prisoner was indicted for 
 knowingly and without lawful ex- 
 cuse having in his custody and pos- 
 
 session a mould on which were im- 
 pressed the figure and apparent re- 
 semblance of the obverse side of a 
 half-crown. The mould was foimd 
 in the house of the prisoner, who 
 had previously passed a bad half- 
 crown ; but there was no evidence 
 to shew that the half-crown had 
 been in the mould: — Held, that 
 there was sufficient evidence to go 
 to the jury. Reg. v. Weeks, L. & 
 C. 18 ; 8 Cox, C. C. 455 ; 7 Jur., 
 N. S. 472; 30 L. J., M. C. 141; 9 
 W. R. 553 ; 4 L. T., N. S. 373. 
 
 On an indictment on 2 & 3 Will. 
 4, c. 34, s. 10, for the felony of mak- 
 ing a mould " intended to make and 
 impress the figure and apparent re- 
 semblance of the obverse side " of 
 a shilling, it was sufficient to prove 
 that the prisoner made the mould 
 and a part of the impression though 
 he had not completed the entire im- 
 pression. Rex V. Foster, 7 C. & P. 
 495 — Patteson. 
 
 To convict a prisoner under the 
 2 & 3 Will. 4, c. 34, s. 10, of the 
 felony of having in his possession a 
 mould, upon which was impressed 
 the resemblance of the obverse side 
 of a shilling, the jury must be satis- 
 fied that, at the time he had it in 
 his possession, the whole of the ob- 
 verse side of the shilling was im- 
 pressed on the mould : a part is not 
 sufficient. Ih. 
 
 On an indictment for having 
 in possession a die made of iron 
 and steel, proof of a die made 
 of other material, or of both, will 
 be sufficient ; for it is immaterial to 
 the ofience of what the die is made. 
 Rex V. Oxford, R. & R. C. C. 382. 
 
 Upon an indictment against a 
 party under 2 & 3 Will. 4, c. 34, s. 
 10, for having in his possession a 
 mould, upon which was made and 
 impressed- the figure, on one of the 
 sides, of a shilling, it was not suffi- 
 cient to shew that the prisoner had 
 in his possession a mould, on one 
 side of which there was a perfect 
 impression, but without a channel 
 through which the metal ran, unless 
 
 Digitized by Microsoft® 
 
UNLAWFUL POSSESSION. 
 
 93 
 
 it could also be shown that coin could 
 be made by it. Reg. v. MacMillan, 
 1 Cox, C. C. 41— Maule. 
 
 A press for coinage was a tool or 
 an instrument within that branch 
 of the 8 & 9 Will. 3, c. 26, which 
 made it treason to have the same 
 knowingly in the party's custody. 
 Rex V. Bell, 1 East, P. C. 169. 
 
 So having knowingly in posses- 
 sion a puncheon for the purpose of 
 coining, though that alone, without 
 the counter puncheon, would not 
 make the figure. Rex v. Ridgelay, 
 1 East, P. C. 171 ; 1 Leach, C. C. 
 189. 
 
 So a collar of iron, for graining 
 the edges of counterfeit money, was 
 an instrument, although it was to 
 be used in a coining press. Rex v. 
 Moore, 2 C. & P. 235 ; 1 M. C. C. 
 122. 
 
 So a mould of lead, having the 
 stamp of one side of a shilUng, was 
 a tool or an instrument. Rex v. 
 Lennard, 2 W. Bl. 807 ; 1 Leach, 
 C. C. 90 ; 1 East, P. C. 170. 
 
 It is a misdemeanor at common 
 law to have tools for coining in pos- 
 session with intent to use them. 
 Rex V. Sutton, 1 East, P.' C. 172. 
 
 14. Unlawful possession of Base 
 Goin, Filings, or Olippings. 
 By 24 & 25 Vict. c. 99, s. 5, 
 " whosoever shall unlawfully have 
 " in his custody or possession any 
 " filings or clippings, or any gold 
 " or silver bullion, or any gold or 
 " silver in dust, solution, or other- 
 " wise, which shall have been pro- 
 " duced or obtained by impairing, 
 " diminishing, or lightening any of 
 " the Queen's current gold or silver 
 " coin, kno'v^ing the same to have 
 " been so produced or obtained, 
 " shall, in England and Ireland, be 
 " guilty of felony, and being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 "kept in penal servitude for any 
 " term not exceeding seven years, 
 " and not less than five years (27 & 
 " 28 Vict. c. 47), or to be impris- 
 
 " oned for any terra, not exceeding 
 " two years, with or without hard 
 " labour, and with or without soli- 
 " tary confinement." 
 
 By s. 11, " whosoever shall have 
 " in his custody or possession three 
 " or more pieces of false or counter- 
 " feit coin, resembling or appar- 
 " ently intended to resemble, or pass 
 " for any of the Queen's current 
 " gold or silver coin, knowing the 
 " same to be false or counterfeit, 
 " and with intent to utter or put off 
 " the same or any of them, shall, in 
 " England and Ireland, be guilty 
 " of a misdemeanor, and, being con- 
 " victed thereof, shall be Uable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for the 
 "term of five years, or to be im- 
 " prisoned for any term not exceed- 
 " ing two years (27 & 28 Vict. c. 
 " 47), with or without hard labour, 
 " and with or without solitary con- 
 " finement." (Former provision, 2 
 & 3 Will. 4, c. 34, s. 8.) 
 
 In order to convict a person 
 charged on 2 & 3 Will. 4, c. 34, s. 
 8, with having in his possession more 
 than three pieces of counterfeit coin, 
 with intent to utter them, it was 
 not necessary that the possession 
 should be an individual possession, 
 but it was enough if the coin was in 
 the possession of the person so 
 charged, or his immediate agent. 
 Reg. V. Williams, Car. & M. 259— 
 Mirehouse, C. S. 
 
 Having a large quantity of coun- 
 terfeit coin in possession, many of 
 each sort being of the same date, 
 and made in the same mould, and 
 each piece being wrapped in a sep- 
 arate piece of paper, and the whole 
 distributed in different pockets of 
 the dress, is some evidence that the 
 possessor knew that the coin was 
 counterfeit, and intended to utter 
 it. Reg. v. Jarvis, Dears. C. 0. 
 552; 1 Jur., N. S. 1114 ; 25 L. J., 
 M. C. 30 ; 7 Cox, C. C. 63. 
 
 Having counterfeit silver in pos- 
 session, with intent to utter it as 
 good, was no offence before 2 & 3 
 
 Digitized by Microsoft® 
 
94 
 
 COINING. 
 
 Will. 4, o. 34, s. 8. Rex v. Heath, 
 R. & R. C. C. 184 ; S. P., Rex v. 
 Stewart, R. & R. C. C. 288. 
 
 Procuring base coin, with intent 
 to utter it as good, is a misdemean- 
 or. Rex r. Fuller, R. & R. C. C. 
 308. 
 
 Having in possession a large 
 quantity of base coin is evidence of 
 having procured it with intent to 
 utter it, unless there are other cir- 
 cumstances to induce a belief that 
 the defendant was the maker. lb. 
 
 Having the possession of counter- 
 feit money, with intention to pay it 
 away as for good money, was an 
 indictable ofience at common law. 
 Rex V. Parker, 1 Leach, C. C. 41. 
 
 Possession of bad money five 
 days after, may be given in evidence 
 to shew guilty knowledge. Har- 
 rison's case, 2 Lewin, C. C. 118 — 
 Taunton. 
 
 When pieces of counterfeit coin 
 are found on one of two persons, 
 acting in guilty concert, and both 
 knowing of the possession, both are 
 guilty. Reg. v. Rogers, 2 M. C. C. 
 85 ; 2 Lewin, C. C. 119, 297. 
 
 15. Uttering. 
 
 Statute.]— Qy 24 & 25 Vict. c. 
 99, s. 9, " whosoever shall tender, 
 " utter or put olF any false or coun- 
 " terfeit coin, resembling or appar- 
 " ently intended to resemble or pass 
 "for any of the Queen's current 
 " gold or silver coin, knowing the 
 " same to be false or counterfeit, 
 " shall, in England and Ireland, be 
 " guilty of a misdemeanor, and 
 " being convicted thereof, shall be 
 " liable, at the discretion of the 
 " court, to be imprisoned for any 
 " term not exceeding one year, with 
 " or without hard labour, and with 
 " or without solitary confinement." 
 [Similar to former provision, 2 & 3 
 Will. 4, c. 34, s. 7.) 
 
 By s. 10, " whosoever shall ten- 
 " der, utter or put ofiT any false or 
 " counterfeit coin, resembling or ap- 
 " parently intended to resemble or 
 " pass for any of the Queen's cur- 
 
 " rent gold or silver coin, knowing 
 " the same to be false or counter- 
 " feit, and shall, at the time of such 
 " tendering, utteiing, or putting off, 
 " have in his custody or possession, 
 " besides the false or counterfeit 
 " coin so tendered, uttered or put 
 " off, any other piece of false or 
 " counterfeit coin, resembling or ap- 
 " parently intended to resemble or 
 " pass for any of the Queen's cur- 
 " rent gold or silver coin, or shall, 
 " either on the day of such tender- 
 " ing, uttering or putting off, or 
 "within the space often days then 
 " next ensuing, tender, utter, or put 
 " off any false or counterfeit coin, 
 " resembling or apparently intended 
 " to resemble or pass for any of the 
 " Queen's current gold or silver 
 " coin, knowing the same to be 
 " false or counterfeit, shall, in Eng- 
 " land and Ireland, be guilty of a 
 " misdemeanor, and, being convict- 
 " ed thereof, shall be liable, at the 
 " discretion of the court, to be im- 
 " prisoned for any term not exceed- 
 " ing two years, with or without 
 " hard labour, and with or without 
 " solitary confinement." (Former 
 provision, 2 & 3 Will. 4, c 34, s. 7.) 
 
 By s. 11, " whosoever shall have 
 " in his custody or possession three 
 " or more pieces of false or counter- 
 " feit coin, resembhng or apparent- 
 " ly intended to resemble or pass 
 " for any of the Queen's current 
 " gold or silver coin, knowing the 
 " same to be false or counterfeit, 
 " and with intent to utter or put off 
 " the same or any of them, shall, in 
 " England and Ireland, be guilty of 
 " a misdemeanor, and being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for the 
 " term of five years (27 & 28 Vict. 
 " c. 47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment." 
 
 By s. 12, " whosoever, having 
 " been convicted, either before or 
 
 Digitized by Microsoft® 
 
UTTERING. 
 
 95 
 
 " after the passing of this act, of 
 " any such misdemeanor or crime 
 " and offence as in any of the last 
 " three preceding sections mention- 
 " ed, or of any felony or high crime 
 " and offence against this or any 
 "former act relating to the coin, 
 " shall afterwards commit any of 
 " the misdemeanors or crimes and 
 " offences in any of the said sections 
 " mentioned, shall, in England and 
 " Ireland, be guilty of felony, and 
 " being convicted thereof, shall be 
 " liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude, for life, or for any term not 
 " less than five years(27 & 28 Vict. 
 " c. 47), or to be imprisoned for 
 " any term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment." 
 
 What amounts to.] — A prisoner 
 went into a shop, asked for some 
 coffee and sugar, and in payment 
 put down on the counter a counter- 
 feit shilling ; the prosecutor said 
 that the shilling was a bad one ; 
 whereupon the prisoner quitted the 
 shop, leaving the shilling and also 
 the coffee and sugar: — Held, that 
 this was an uttering and putting off 
 within the statute. Heg. v. Welch, 
 T. & M. 409 ; 2 Den. C. C. 78 ; 15 
 Jur. 136; 20 L. J., M. C. 101. 
 
 The prisoner and J. were indicted 
 for a misdemeanor in uttering coun- 
 terfeit coin. The uttering was 
 effected by J. in the absence of the 
 prisoner, but the jury found that 
 they were both engaged on the eve- 
 ning on which the uttering took 
 place, in the common purpose of ut- 
 tering counterfeit shillings, and that 
 in pursuance of that common pur- 
 pose J. uttered the coin in question : 
 — ^Held, that the prisoner was right- 
 ly convicted as a principal, there 
 being no accessories in a misde- 
 meanor. Heq. V. Greenwood, 2 
 Den. C. C. 453 ; 5 Cox, C. C. 521 ; 
 16 Jur. 390 ; 21 L. J., M. C. 127. 
 
 Upon an indictment which charg- 
 
 ed an uttering and a putting off 
 counterfeit coin, the evidence was 
 that the prisoner went into a shop 
 and asked to purchase some articles, 
 putting down a counterfeit shilling 
 in payment, the shopkeeper said it 
 was a bad one, an<J the prisoner 
 then left the shop without the shil- 
 ling or goods : — Held, that he was 
 guilty of uttering. JReg. v. Welch, 
 4 Cox, C. C. 430— Jervis. 
 
 The giving of a piece of counter- 
 feit money in charity is not an ut- 
 tering, although the person may 
 know it to be a counterfeit ; as in 
 cases of this kind there must be 
 some intention to defraud. Heg. v. 
 Page, 8 C. & P. 122— Abinger. 
 
 But where a person gave a coun- 
 terfeit coin to a woman with whom 
 he had shortly before had inter- 
 course : — Held, an uttering. Heg. v. 
 , 1 Cox, C. C. 250— Denman 
 
 and Coltman. 
 
 Joint Uttering.] — If two utterers 
 of counterfeit coin, with a general 
 community of purpose, go different 
 ways, and utter coin apart from 
 each other, and not near enough to 
 assist each other, their respective 
 utterings are not joint' utterings by 
 both. Jiex V. Manners, 7 C. & P. 
 801— Bolland. 
 
 If two jointly prepare counterfeit 
 coin, and utter it in different shops, 
 apart from each other, but in con- 
 cert, and intending to share the pro- 
 ceeds, the utterhigs of each are the 
 joint \itterings of both, and they 
 may be convicted jointly. Segi v. 
 Burse, 2 M. & Rob. 360— Maule. 
 
 On an indictment for a joint ut- 
 tering of covmterfeit coin, where 
 both are not present at the time of 
 the uttering, the true question seems 
 to be, whether the one was so near 
 the other as to help the other to get 
 rid of the counterfeit coin. Heg. v. 
 Jmes, 9 C. & P. 761; Heg. v. 
 Bogers, 2 M. C. C. 85 ; 2 Lewin, 
 C.^C. 119, 29T. 
 
 Prisoners together uttered a bad 
 half-crown. Shortly afterwards they 
 
 Digitized by Microsoft® 
 
96 
 
 COESmSTG. 
 
 separated, and one of them went 
 to a shop and uttered another bad 
 half-crown, and then the other 
 went to the same shop and uttered 
 a third bad half-crown; but at these 
 second and third utterings neither 
 was proved to have been near the 
 other : — Held, that the proof of pre- 
 vious concert would not sustain a 
 count for a joint uttering in either 
 of the second or third utterings. 
 Beg. V. West, 2 Cox, C. C. 237— 
 Creswell. 
 
 By Husband and Wife.] — Hus- 
 band and wife were jointly indicted 
 for uttering counterfeit coin : — Held, 
 that the wife was entitled to an ac- 
 quittal, as it appeared that she ut- 
 tered the money in the presence of 
 her husband. Bex v. Price, 8 0. & 
 P. 19 — Park, Bosanquet and Colt- 
 man. 
 
 A wife went from house to house 
 uttering base coin. Her husband 
 accompanied her, but remained out- 
 side : — Held, that the wife acted 
 under her husband's compulsion. 
 GonoUy's case, 2 Lewin, C. C. 229 — 
 Bayley. 
 
 Indictment. ] — An indictment, 
 charging that the prisoner, one 
 piece of counterfeit coin, &c., "did 
 utter and put off to A., knowing 
 the same to be false and counter- 
 feit," is good, whether the objection 
 of uncertainty a^ to the time, &c., 
 and in knowing, is taken before or 
 after verdict. Reg. v. Page, 2 M. 
 C. C. 219 ; 9 C. & P. 756. 
 
 A count charging the prisoner 
 with having counterfeit money in 
 his possession at the time he uttered 
 other counterfeit money, must con- 
 tain a distinct averment of the fact 
 of utteiing. Bex v. Kelly, 3 Esp. 28 
 — BuUer. 
 
 An indictment on 15 Geo. 2, c. 
 28, for uttering bad money by the 
 common trick called " ringing the 
 changes," was good, although it 
 did not state that it was uttered in 
 payment as and for good and law- 
 
 ful money ; for the words of the 
 statute were in the disjunctive utter 
 or tender in payment. Bex v. 
 Franks, 2 Leach, C. C. 644. 
 
 An indictment for knowingly ut- 
 tering counterfeit coin, charged that 
 the prisoner " did utter and put off 
 to one S. A., the wife of W. G., 
 knowing the same to be false and 
 counterfeit " : — Held, that the alle- 
 gation of the scienter was sufficient, 
 and that the word " knowing " must 
 be taken to apply to the prison- 
 er, and not to ".S. A., the wife 
 of W. G.," who was the last an- 
 tecedent ; and that the scienter 
 must be taken to apply to the time 
 of the uttering, although it was not 
 stated to be " then and there." Beg. 
 V. Jones, 9 C. &P. 761— Coleridge. 
 
 Evidence of Guilty Knowledge.'] 
 — On an indictment for uttering 
 counterfeit coin, to prove a guilty 
 knowledge, evidence may be given 
 of a subsequent uttering by the 
 prisoner of counterfeit coin of a dif- 
 ferent denomination to that men- 
 tioned in the indiqtment. The differ- 
 ence in the denomination of the coin 
 goes to the weight of evidence, but 
 not to its admissibilitv. Beg. v. 
 Forster, Dears. C. C. 456 ; 1 Jur., 
 N. S., 407 ; 3 C. L. R. 681 ; 24 L. 
 J., M. C. 134 ; 6 Cox, C. C. 521. 
 
 Twice within Ten Days.] — An 
 indictment for knowingly uttering 
 counterfeit coin twice on the same 
 day, charged an uttering of a coun- 
 terfeit half-crown, and that the de- 
 fendant on the same day, uttered 
 " one other piece of false and coun- 
 terfeit (omitting the word 'coin'), 
 resembling, and apparently intend- 
 ed to resemble, and pass for a piece 
 of the Queen's current silver coin, 
 called a half crown, unlawfully, 
 &c., did utter and put off to one 
 S. A., the wife of W. G., knowing 
 the same to be false and co^mter- 
 feit " : — Held, that the omission of 
 the word " coin " did not render 
 the indictment bad, as the words 
 
 Digitized by Microsoft® 
 
WHEN OFFENCE COMPLETE. 
 
 97 
 
 " false and counterfeit " might be 
 rejected as surplusage, and the in- 
 dictment would then be, " one other 
 piece resembling, and apparently 
 intended to resemble, and pass for 
 a piece of the Queen's current silver 
 coin, called a half-crown." Beg. v. 
 Jones, 9 C. & P. 761— Coleridge. 
 
 On a conviction of two separate 
 offences of uttering counterfeit coin, 
 in two counts, one judgment for 
 two years' imprisonment, under 2 
 & 3 Will. 4, 0. 34, s. 7, was bad. 
 Rex V. Robinson, 1 M. C. C. 413. 
 
 In an indictment on 15 Geo. 2, c. 
 28, s. 3, it was not necessary to aver 
 that the defendant was a common 
 utterer of false money. Rex v. 
 SmUh, 2 B. & P. 127. 
 
 While having other Counterfeit 
 Money.'] — If two prisoners are in- 
 dicted for uttering' a counterfeit 
 shilling, having another counterfeit 
 shilling in their possession, it is not 
 necessary to prove with certainty 
 which of the pieces was the one ut- 
 tered, and which was found on them 
 unuttered, if both the pieces of the 
 money are proved to be counterfeit. 
 And if it appears that two prisoners 
 went to a shop, and that one of 
 them went in and uttered the bad 
 money, having no more in her pos- 
 session, and the other stayed outside 
 the shop, having other bad pieces of 
 money, • both may be convicted ; 
 the uttering and the possession be- 
 ing both joint. Rex v. Skerritt, 2 C. 
 & P. 427— Garrow. 
 
 Where one of two persons in 
 company utters counterfeit coin, 
 and other counterfeit coin is found 
 on the other person, they are joint- 
 ly guilty of the aggravated offence 
 under 2 & 3 Will. 4, c. 34, s. 7, if 
 acting in concert, and both know- 
 ing of the possession. Reg. v. Gev- 
 rish, 2 M. & Kob. 219— Maule. 
 
 Where a man and woman were 
 indicted for uttering a bad shilling 
 to B., and having in their possession 
 another bad shilling at the time, 
 and the uttering was by the woman 
 
 Fish. Dig. — 7 Digitized by Microsoft® 
 
 alone in the absence of the man: 
 — Held, that the man was not 
 liable to be convicted with the act- 
 ual utterer, although proved to be 
 the associate of the woman on the 
 day of uttering, and to have had 
 other bad money about him for the 
 purpose of uttering ; and, secondly, 
 that the woman could not be con- 
 victed of the second offence of hav- 
 ing other bad money in her posses- 
 sion, on the evidence of her associ- 
 ating with a man not present at the 
 uttering, but having large quanti- 
 ties of bad money about him for the 
 purpose of uttering. Rex v. Hke, 
 R. & R. C. C. 142. But see Reg. 
 V. Greenwood, 5 Cox, C. C. 521 ; 2 
 Den. C. C. 453. 
 
 16. When Offence complete. 
 
 By 24 & 25 Vict. c. 99, s. 30, 
 ' every offence of falsely making or 
 ' counterfeiting any coin, or of buy- 
 ' ing, selling, receiving, paying, ten- 
 ' dering, uttering or putting off, or of 
 ' offering to buy, sell, receive, pay, 
 ' utter or put off, any false or coun- 
 ' terfeit coin, against the provisions 
 ' of this act, shall be deemed to be 
 ' complete, although the coin so 
 ' made or counterfeited, or bought, 
 ' sold, received, paid, tendered, ut- 
 ' tered or put off, or.offered to be 
 ' bought, sold, received, paid, utter- 
 ' ed or put off, shall not be in a fit 
 ' state to be uttered, or the coim- 
 ' terfeiting thereof shall not be fin- 
 ' ished or perfected " 
 
 Forging the injpression of money 
 on an u-regular piece of metal, with- 
 out finishwg it, so as to mate it 
 current, waiS an incomplete crime, 
 and not high treason. Rex v. Var- 
 ley, 2 W. Bh 682 ; 1 Leach, 0. C. 76, 
 253 ; 1 East, P. C. 164. 
 
 That it is not necessary tio com- 
 plete the offence that the possession 
 should be with a felonious, intent 
 other than knowledge of possession 
 without lawful authority or excuse., 
 Meg. V ffarve^^ 11 Cox, C C. 662. 
 
98 
 
 COINING. 
 
 17. Evidence. 
 
 By 24 & 25 Vict. c. 99, s. 29, 
 " where upon the trial of any person 
 " charged with any offence against 
 " this act, it shall be necessary to 
 "prove that any coin produced 
 " in evidence against such person is 
 " false or counterfeit, it shall not be 
 " necessary to prove the same to be 
 " false and counterfeit by the evi- 
 " dence of any moneyer, or other 
 " officer of her Majesty's mint, but 
 " it shall be sufficient to prove the 
 " same to be counterfeit by the evi- 
 " dence of any other credible wit- 
 " ness." {Former provision, 2 & 3 
 Will. 4, c. 34, s. 17.) 
 
 The usual practice is to call, as a 
 witness, a silversmith of the town 
 where the trial takes place, who ex- 
 amines the coin in court in the pres- 
 ence of the jury. Davis's C. L. 235. 
 
 18. Previous Gonviction. 
 
 Indictment.']— Bj 24 & 25 Vict, 
 c. 99, s. 37, " where any person 
 " shall have been convicted of any 
 " offence against this act, or any 
 "former act relating to the coin, 
 " and shall afterwards be indicted 
 "for any offence against this act 
 " committed subsequent to such 
 " conviction, it shall be sufficient in 
 " any such indictment, after charg- 
 "ing such subsequent offence, to 
 " state the substance and effect only 
 " (omitting the formal part) of the 
 " indictment and conviction for the 
 " previous offence." 
 
 Before this enactment, an indict- 
 ment for uttering counterfeit coin, 
 knowing it to be counterfeit (after 
 a previous conviction), charged that 
 Ahe prisoner did utter a counterfeit 
 ihalf-crown to E. H., knowing the 
 sajne to be false and counterfeit : — 
 Held, that the allegation of the 
 scienter was sufficient, and that the 
 word " knowing " must be taken to 
 apjiy to the prisoner, and not to E. 
 H-, who was the last antecedent, 
 and that the scienter must be taken 
 to apply to the time of the uttering, 
 although it was not stated to be 
 
 "then and there." Beg. v. Page, 
 9 C. & P. 756 ; 2 M. C. C. 219. 
 
 Certificate and Proof of Convic- 
 tion.'] — " And a certificate contain- 
 " ing the substance and effect only 
 " (omitting the formal part) of tha 
 " indictment and conviction for the 
 " previous offence, purporting to be 
 " signed by the clerk of the court, or 
 " other officer having or purporting 
 " to have the custody of the recordf^ 
 " of the court where the offender was 
 " first convicted, or by the deputy 
 " of such clerk or officer, shall, upon 
 " proof of the identity of the person, 
 " of the offender, be sufficient evi- 
 " dence of the previous conviction, 
 " without proof of the signature or 
 " official character or authority of 
 " the person appearing to have sign- 
 " ed the same, or of his custody or 
 " right to the custody of the rec- 
 " ords of the court ; and for every 
 " such certificate a fee of 6«. 8rf., 
 " and no more shall be demanded 
 " or taken." 
 
 Arraignment and Trial.] — " And 
 " the proceedings upon any indict- 
 " ment for committing any offence 
 " after a previous conviction or con- 
 " victions, shall be as follows ; that 
 " is to say, the offender shall in the 
 " first instance be arraigned upon 
 " so much only of the indictment as 
 " charges the subsequent offence ; 
 " and if he plead not guilty, or if 
 " the cotirt order a plea of not 
 " guilty to be entered on his behalf, 
 " the jury shall be charged in the 
 " first instance to inquire concern- 
 " ing such subsequent offence only ; 
 " and if they find him guilty, or if 
 " on an-aignment he plead guilty, 
 " he shall then, and not before, be 
 " asked whether he had been previ- 
 " ously convicted, as alleged in the 
 " indictment ; and if he answer that 
 " he had been so previously convict- 
 " ed, the court may proceed to sen- 
 " tence him accordingly ; but if he 
 " deny that he had been so previously 
 " convicted, or stand mute of mal- 
 
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APPREHENSION OP OFFENDERS. 
 
 99 
 
 " ice, or will not answer directly to 
 " such question, the jury shall then 
 " be charged to inquire concerning 
 ~" such previous conviction or con- 
 " victions ; and in such case it shall 
 " not be necessary |o swear the jury 
 " again, but the oath already taken 
 " by them shall for all purposes be 
 " deemed to extend to such last- 
 " mentioned inquiry." 
 
 Evidence of Good Character.] — 
 " Provided that if, upon the trial of 
 " any person for any such subse- 
 " quent oifence, such person shall 
 " give evidence of his good charac- 
 " ter, it shall be lawful for the 
 " prosecutor, m answer thereto, to 
 " give evidence of the conviction of 
 " such person for the previous of- 
 " fence or offences before such ver- 
 " diet of guilty shall be returned, 
 " and the jury shall inquire coneem- 
 "ing such previous conviction or 
 " convictions at the same time that 
 " they inquire concerning such sub- 
 " sequent offence." 
 
 On an indictment for uttering a 
 counterfeit coin after a previous 
 conviction, such previous convic- 
 tion for uttering false coin cannot 
 be put in evidence for the purpose 
 of proving guilty knowledge. Heff. 
 V. Goodwin, 10 Cox, C. C. 534 — 
 Mellor. But this decision is over- 
 ruled by the next case. 
 
 On the trial of an indictment 
 for felonious possession of counter- 
 feit coin, with intent to utter the 
 same, after previous conviction, the 
 course of proceeding at the trial is 
 prescribed by 24 & 25 Vict. c. 99, 
 s. 37, viz., first to try that part of 
 the offence which relates to the pos- 
 session, and then if the prisoner is 
 found guilty, to try the prisoner for 
 the previous conviction. Seff. v. 
 Martin, 21 L. T.. N. S. 469 ; 18 W. 
 R. 72 ; 1 L. R., C. 0. 214— C. C. R. 
 
 19. Validity of Convictions and 
 Commitments. 
 By 24 & 25 Vict. c. 99, s. 32, 
 " no conviction for any offence pun- 
 
 " ishable on summary conviction 
 "under this act shall be quashed 
 " for want of form, or be remov- 
 " ed by certiorari into any of her 
 " Majesty's superior courts of rec- 
 " ord ; and no warrant of commit- 
 " ment shall be held void by reason 
 " of any defect therein, provided it 
 " be therein alleged that the party 
 " has been convicted, and there be 
 " a valid conviction to sustain the 
 " same." 
 
 20. Conveying Coining Tools or Coin 
 from the Mint without Authority. 
 
 By24& 25Vict.c.99,s.25, "who- 
 " soever, without lawful authority 
 " or excuse (the proof whereof shall 
 "lie on the party accused), shall 
 " knowingly convey out of any of 
 " her Majesty's mints any puncheon, 
 " counter puncheon, matrix, stamp, 
 " die, pattern, mould,. edger, edging 
 " or other tool, collar, instrument, 
 " press or engine used or employed 
 "in or about the coining of coin, or 
 " any useful part of any of the sever- 
 " al matters aforesaid, or any coin, 
 " bullion, metal or mixture of met- 
 " als, shall, in England and Ireland, 
 " be guilty of felony, and being 
 " convicted thereof, shall be liable, 
 " at the discretion of the court, to 
 " be kept in penal servitude for life, 
 " or for any term not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour, and with or with- 
 " out solitary confinement." 
 
 21. Power to seize Counterfeit Coin 
 
 and Coining Tools. 
 
 (24 ^ 25 Vict. c. 99, s. 27.) 
 
 (Former' provisions, 2 & 3 Will. 
 4, c. 34, s. 14, and 37 Geo. 3, c. 126, 
 s. 7, and 43 Geo. 3, c. 139, s. 7.) 
 
 22. Apprehension of Offenders. 
 By 24 & 25 Vict. c. 99 s.'3i;'"fit 
 
 " shall bfi Inwfnl fnr 9Wl^^»4i'Ay4HTi 
 
 Digitized by Microsoft® 
 
100 
 
 COINING. 
 
 " ting any indictable offence, or any 
 " high crime and oifence, or crime 
 " and offence, against this act, and 
 " to convey or deliver him to some 
 " peace officer, constable or officer 
 " of police, in order to his being 
 " conveyed as soon as reasonably 
 " may be before a justice of the 
 " peace or some other proper officer, 
 " to be dealt with according to 
 " law." 
 
 23. Proseaution and Trwl of Of- 
 fenders. 
 
 Venue.]— Bj 24 & 25 Vict. c. 99, 
 s. 28, " where any person shall tend- 
 " er, utter, or put off any false or 
 " counterfeit coin in one county or 
 " jurisdiction, and shall also tender, 
 " utter, or put off any other false or 
 " counterfeit coin in any other 
 " county or jurisdiction, either on 
 " the day of such first-mentioned 
 " tendering, uttering, or putting off, 
 " or within the space of ten days 
 "next ensuing, or where two or 
 " more persons, acting in concert in 
 " different counties or jurisdictions 
 " shall commit any offence against 
 " this act, every such offender may 
 " be dealt with, indicted, tried, and 
 " punished, and the offence laid 
 " and charged to have been com- 
 " mitted, in any one of the said 
 " counties or jurisdictions, in the 
 " same manner in all respects as if 
 " the offence had been actually and 
 " wholly committed within such 
 " one county or jurisdiction." 
 
 On the High Seas.] — By s. 36, 
 " all indictable offences mentioned 
 " in this act, which shall be com- 
 " mitted within the jurisdiction of 
 " the Admiralty of England or Ire- 
 " land, shall be deemed to be of- 
 " fences of the same nature, and 
 " liable to the same punishments, 
 "as if they had been committed 
 " upon the land in England or Ire- 
 " land, and may be dealt with, in- 
 " q[uired of, tried, and determined 
 " in any county or place in England 
 " or Ireland in which the offender 
 
 shall be apprehended or be in cus- 
 tody, in the same manner in all 
 respects as if the same had been 
 actually committed m that county 
 or place, and in any indictment 
 for any such offence, or for being 
 accessory to any STich offence, the 
 venue in the margin shall be the 
 same as if such offence had been 
 committed in such county or 
 place, and the offence itself shall 
 be averred to have been commit- 
 ted 'on the high seas': jjrovided 
 that nothing herein contained 
 shall alter or affect any of the 
 laws relating to the government 
 of her Majesty's land or naval 
 forces." 
 
 On Summary Convictions.] — By 
 41, " every offence hereby made 
 punishable on summary convic- 
 tion may be prosecuted in En- 
 gland in the manner directed by 
 11 & 12 Vict. c. 43, and may be 
 prosecuted in Ireland before two 
 or more justices of the peace, or 
 one metropolitan or stipendiary 
 magistrate, in the manner direct- 
 ed by 14 & 15 Vict. c. 93, or in 
 such other manner as may be di- 
 rected by any act that may be 
 passed for hke purposes ; and all 
 provisions contained in the said 
 acts shall be applicable to such 
 prosecutions in the same manner 
 as if they were incorporated in 
 this act : provided that nothing 
 ' in this act contained shall in any 
 ' manner alter or affect any enact- 
 ' ment relating to procedure in the 
 
 ■ case of any offence punishable on 
 ' summary conviction within the 
 
 ■ city of London, or the metropoli- 
 • tan police district, or the recovery 
 
 ■ or application of any penalty or 
 
 ■ forfeiture for any such offence." 
 
 24. Punishment. 
 (24 & 25 Vict. c. 99, s. 35.) 
 
 25. Costs of Prosecution. 
 By s. 42, " in all prosecutions for 
 
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ACTIONS AGAINST PERSONS. 
 
 101 
 
 " any oifence against this act in 
 " England, which shall be conduct- 
 " ed tinder the direction of the so- 
 " licitors of her Majesty's Treasury, 
 " the court before which such of- 
 " fence shall be prosecuted or tried 
 " shall allow the expenses of the 
 " prosecution in all respects as in 
 " cases of felony; and in all prose- 
 " cutions for any such offence in 
 " England which shall not be so 
 " conducted, it shall be lawful for 
 " such court, in case a conviction 
 " shall take place, but not other- 
 " wise, to allow the expenses of the 
 " prosecution in like manner ; and 
 " every order for the payment of 
 " such cost's shall be made out, and 
 " the sum of money mentioned there- 
 " in paid and repaid, upon the same 
 " terms and in the same manner in 
 " aU respects as in cases of felony." 
 
 26. Actions against Persons act- 
 ing in pursuance of the Statute. 
 By 24 & 25 Vict. c. 99, s. 33, 
 " all actions and prosecutions to be 
 " commenced against any person 
 " for anything done in pursuance of 
 " this act shall, in England or Ire- 
 " land, be laid and tried in the 
 " county where the fact was com- 
 " mitted, and shall, iu England, 
 " Ireland, or Scotland, be com- 
 " menced within six months after 
 " the fact committed, and not oth- 
 " erwise ; and notice in writing of 
 " such action, and of the cause 
 " thereof, shall be given to the de- 
 " fendant one month at least before 
 " the commencement of the action; 
 " And in any such action brought 
 " in England or Ireland the defend- 
 " ant may plead the general issue, 
 " and give this act and the special 
 " matter in evidence, at any trial 
 " to be had thereupon ; 
 
 " And no plaintiff shall recover 
 " in any such action if tender of 
 " suificient amends shall have been 
 " made before such action brought, 
 " or if a sufficient sum of money 
 " shall have been paid into court 
 " after such action brought, by or 
 
 " on behalf of the defendant, and 
 " if in England or Ireland a verdict 
 " shall pass for the defendant, or 
 " the plaintiff shall become nonsuit, 
 " or discontinue any such action 
 " after issue joined, or if, upon de- 
 " murrer or otherwise, judgment 
 " shall be given against the plaint- 
 " iff, in every such case the defend- 
 " ant shall recover his full costs as 
 " between attorney and client, and 
 " have the like remedy for the same 
 " as any defendant has by law ia 
 " other cases ; and though a verdict 
 " shall be given for the plaintiff in 
 " any sucibi action, such plaintiff 
 " shall not have costs against the 
 " defendant unless the judge before 
 " whom the trial shall be shall cer- 
 " tif y his approbation of the ac- 
 " tion," 
 
 In order to entitle a party to a 
 notice of action for a thing done in 
 pursuance of this statute, it is 
 enough that he honestly and bond 
 iide believes he is acting in pursu- 
 ance of the act, whether there is 
 reasonable ground for such belief 
 or not. Hermann v. Seneschal, 13 
 C. B., N. S. 392 ; 32 L. J., C. P. 
 43; 11 W. R. 184; 6 L. T., N. S. 
 646. 
 
 Digitized by Microsoft® 
 
 X. Concealment of the Bieth 
 OP Children. 
 
 1. The Offence, 101. 
 
 2. Indictment, 104. 
 
 3. Evidence, 105. 
 
 1. The Offence. 
 
 Statute.]— By 24 & 25 Vict. c. 
 100, s. 60, " if any woman shall be 
 ' delivered of a child, every person 
 ' who shall, by any secret disposi- 
 ' tion of the dead body of the said 
 ' child, whether such child died 
 ' before, at, or after its birth, en- 
 ' deavour to conceal the birth there- 
 ' of, shall be guilty of a misde- 
 ' meaner, and, being convicted 
 ' thereof, shall be liable, at the 
 ' discretion of the court, to be im- 
 
102 
 
 CONCEALMENT OF BIRTHS. 
 
 " prisoned for any tei-m not exceed- 
 "ing two years, with or without 
 " hard labour : provided that if 
 " any person tried for the murder 
 " of any child shall be acquitted 
 " thereof, it shall be lawful for the 
 "jury by whose verdict such per- 
 " son shall be acquitted to find, in 
 " case it shall so appear in evi- 
 " dence, that the child had recently 
 " been born, and that such person 
 " did, by some secret disposition of 
 " the dead body of such child, en- 
 " deavour to conceal the birth there- 
 " of, and thereupon the court may 
 " pass such sentence as if such per- 
 " son had been convicted upon an 
 " indictment for the concealment of 
 " the birth." (Former provision, 
 9 Geo. 4, c. 31, ss. 14, 31. The 9 
 Geo. 4, c. 31, repealed 43 Geo. 3, 
 c. 58.) 
 
 Siiice, this JEnactmeoit.'] — On an 
 indictment against the mother for 
 concealment of the birth of her il- 
 legitimate child, it appeared that 
 the body of the child was found, 
 three days after it was born, behind 
 the door of the privy belonging to 
 the house where she lived as a do- 
 mestic servant, in a tub covered 
 over with a small cloth : — Held, 
 that there was no conclusive evi- 
 dence to warrant the jury in find- 
 ing a verdict for concealment of 
 the birth. Reg. v. Oj»«e, 8 Cox, C, 
 C. 332— Martin. 
 
 To endeavor to conceal the birth 
 of a chUd by a secret disposition of 
 the dead body within 24 & 25 Vict, 
 c. 100, s. 60, it must be by putting 
 it into some place where it is not 
 likely to be found. Placing it in 
 an open box in the prisoner's bed- 
 room, and afterwards, on inquiry 
 by the medical man, informing him 
 that the child was in the box, 
 where it was found, is not a secret 
 disposition. Reg. v. Sleep, 9 Cox, 
 C. C. 559— Byles. 
 
 A foetus not bigger than a man's 
 finger, but having the shape of a 
 child, is a child within the statute. 
 
 Reg. V. Goliner, 9 Cox, C. C. 506— 
 Martin. 
 
 Before this Statvte.] — The moth- 
 er of a child, of which she has been 
 recently delivered, with the inten- 
 tion of concealing the dead body of 
 the child from a surgeon, placed it 
 under a bolster on which she laid 
 her head. It was assumed that 
 she meant to remove the body else- 
 where when an opportunity oc- 
 curred : — Held, that she was prop- 
 erly convicted of endeavoring to 
 conceal the birth of the child by 
 secretly disposing of the dead body, 
 as it was not necessary in order to 
 constitute that ofifence, under 9 
 Geo. 4, c. 31, s. 14, that the body 
 should be put in a place which was 
 intended to be the place of its final 
 deposit. Reg. v. Perry, Dears. C. 
 C. 471 ; 1 Jur., N. S. 408 ; 24 L. J., 
 M. C. 137 ; 3 C. L. R. 691 ; 6 Cox, 
 C. C. 531 ; S. P., Reg. v. Gold- 
 thorpe. Car. & M. 335 ; 2 M. C. C. 
 244 ; Reg. v. Farnhan, 1 Cox, C. 
 C. 349. 
 
 The concealment sought to be 
 checked by 9 Geo. 4, c. 31, s. 14, 
 was that which would keep the 
 world at large in ignorance of the 
 birth of a child. Reg. v. Morris, 2 
 Cox, C. C. 489— Coltman. 
 
 While, therefore, the oflTence may 
 on the one hand be committed, even 
 though the pregnancy and delivery 
 be made known to a confidant, so 
 on the other it is not an offence 
 within the act if the endeavour to 
 conceal proceed from a desire to 
 escape individual observation or 
 anger. Where, therefore, it ap- 
 peared that the body of a bastard 
 child would have been buried by 
 the prisoner in the churchyard, but 
 for her fear to provoke her father, 
 under the operation of which she 
 conveyed it secretly to a pond : — 
 Held, that the case did not fall 
 within the act. lb. 
 
 On an indictment against the 
 mother for the mui'der of her ille- 
 gitimate child, it appeared that the 
 
 Digitized by Microsoft® 
 
THE OFFENCE. 
 
 103 
 
 body of the child was found, a few 
 hours after its birth, on the floor of 
 an attic in a house where she lived 
 as domestic servant, the head sev- 
 ered from the body, and both lying 
 in sheets which had been removed 
 from the bedroom beWw, which 
 was occupied by the prisoner and 
 her mistress, and where there was 
 evidence to shew that the birth had 
 taken place, but it was doubtful 
 whether the severance of the head 
 from the body was effected there or 
 in the attic : — Held, that there was 
 no evidence to warrant the jury in 
 finding a verdict for the statutable 
 misdemeanor of endeavouring to 
 conceal the birth. Reg. v. Croode, 
 6 Cox, C. C. 318— Talfourd. 
 
 On a charge of concealment of 
 birth, it must appear that the child 
 had gone such a time in its mother's 
 womb that it would, in the ordi- 
 nary course of things, when born, 
 have had a fair chance of life. Un- 
 der seven months it may be fairly 
 presumed that it would not be born 
 alive. Heg. v. Berriman, 6 Cox, 
 C. C. 388— Erie. 
 
 A woman was delivered of a 
 ifchild, whose dead body was found 
 at her father's house in a bed among 
 the feathers. There was no evidence 
 to Shew who placed it there, but it 
 being proved that the woman had 
 sent for a surgeon at the time of 
 her confinement, and had prepared 
 child's clothes, the judge directed 
 an acquittal on the charge of en- 
 deavoring to conceal the birth. 
 Eeoi V. SigUy, i C. & P. 366— 
 Park. 
 
 In a case of concealment of birth 
 under 9 Geo. 4, c. 31, s. 14, it was 
 essential to the commission of the 
 offence that the prisoner should have 
 dohe some act of disposal of the 
 body after the child was dead ;. 
 therefore, if the prisoner had gone 
 to a privy for another purpose, and 
 the child came from her unawares, 
 and fell into the soil and was suffo- 
 cated, she must be acquitted of this 
 charge, notwithstanding her denial 
 
 of the birth of the child. Heg. v. 
 Turner, 8 C. & P. 755— Patteson. 
 S. P., Reg. V. Coxhead, 1 C. & K. 
 623— Piatt. 
 
 A prisoner found with the body 
 still in her possession, though about 
 to dispose of it, could not be con- 
 victed. Rex V. Snell, 2 M. & Rob. 
 44 — Gurney. 
 
 The act of throwing a bastard 
 child down the privy, by its moth- 
 er, was evidence of an endeavour 
 to conceal the birth, within 43 Geo. 
 3, c. 58, s. 3. Rex v. Cornhaall, R. 
 & R. C. C. 837. 
 
 On an indictment for child mur- 
 der, no one but the mother can be 
 convicted of a concealment of the 
 birth of the child. Reg. v. 'Wright, 
 9 C. & P. 754— Gurney. 
 
 Aiding and Assisting.] — A wo- 
 man was delivered of a child, which 
 died soon after its birth ; concurred 
 with her paramour in endeavouring 
 to conceal the birth, and he, in con- 
 sequence of her persuasion, she re- 
 maining in bed, took the body, and 
 buried it in a field, intending there- 
 by to conceal the birth : — Held, 
 that she could be convicted of en- 
 deavouring to conceal the birth, 
 under 9 Geo. 4, c. 31, s. 14, and he 
 of counselling, aiding and abetting 
 her in the offence. Reg. v. Rird, 
 2 C. & K. 817— Piatt. 
 
 If a woman is delivered of a 
 child which is dead, and a man 
 takes the body and secretly buries 
 it, she is indictable for the conceal- 
 ment by secret burying, under 9 
 Geo. 4, c. 31, s. 14, and he for aid- 
 ing and abetting under sect. 31, if 
 there was a common purpose in 
 both in thus endeavouring to con- 
 ceal the birth of the child ; but the 
 jury must be satisfied not only that 
 she wished to conceal the birth, but 
 was a party to the carrying that 
 wish into effect by the secret burial 
 by the hand of the man, in pursu- 
 ance of a common design between 
 them. Reg. v. /Skelton, 3 C. & K. 
 119— Williams. 
 
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lOJ: 
 
 CONCEALMENT OF BIRTHS. 
 
 If the body of a dead child was 
 secretly buried, or otherwise dis- 
 posed of, by an accomplice of its 
 mother, the accomplice acting as 
 her agent in the matter, the mother 
 of the child was punishable under 
 9 Geo. 4. c. 31, s. 14. Bex v. 
 Douglas, 7 C. & P. 644— Gaselee. 
 
 A woman delivered of a child born 
 alive, endeavored to conceal the 
 birth by depositing the child, while 
 alive, in the corner of a field, leaving 
 the infant to die from exposure, 
 which it did, and the dead body was 
 afterwards found in the comer : — 
 Held, that she could not be convicted 
 of concealing the birth of the child 
 under 24 & 25 Vict. c. 100, s. 60, 
 which relates to the secret disposition 
 of the dead body of a child. Reg. v. 
 May, 10 Cox, C. C. 448 ; 15 W. R. 
 751 ; 16 L. T., N. S. 362. 
 
 On an indictment for secretly dis- 
 posing of the dead body of a bas- 
 tard child, with intent to conceal 
 its birth, it is a question of law for 
 the judge, whether there has been a 
 secret disposing of the body, i. e. a 
 disposing of it in such a place as 
 that the oflFence may have been 
 committed (and a dust-bin is such 
 a place); but it is for the jury to 
 say whether there has been such a 
 disposing of the body by the pris- 
 oner with such an intent, and the 
 jury must be satisfied that the pris- 
 oner so disposed of it, or was a party 
 to such a disposition of it, with in- 
 tent. Beg. V. Clarke, 4 P. & F. 
 1040— Martin. 
 
 On an indictment for concealing 
 the birth of her child, it appeared 
 that the prisoner had been confined 
 of a child which had not attained 
 to seven months from conception, 
 it had never lived, and was slightly 
 malformed, it was left to the jury 
 to say whether the offspring had so 
 far matured as to become a child, 
 or was only a fcetus, or the unform- 
 ed subject of a premature marriage. 
 Reg. V. H&witt, 4F. &F. 1101— 
 Smith. 
 
 Leaving the dead body of a child 
 
 in two boxes, closed, but not locked 
 or fastened, one being placed inside 
 the other in a bedroom, but in such 
 a position as to attract the attention 
 of those who daily resorted to the 
 room, is not a secret disposition of 
 the body .within 24 & 25 Vict. c. 
 100, s. 60. Reg. v. George, 11 Cox, 
 C. C. 41— Bovill. 
 
 In order to convict a woman of 
 attempting to conceal the birth of a 
 child, a dead body must be found, 
 and identified as that of the chUd 
 of which she is alleged to have been 
 delivered. Reg. v. Williams, 11 
 Cox, C. C. 684. 
 
 2. Indictment. 
 
 An indictment for concealing the 
 birth of a child must expressly al- 
 lege that the child is dead. Rex v. 
 Davis, 1 Russ. C. & M. 779. 
 
 An indictment for concealing the 
 birth of a child "by secretly dis- 
 posing of the dead body," under 9 
 Geo. 4, c. 31, s. 14, without shewing 
 the mode of disposing of the dead 
 body, was bad. Reg. v. Hounsett, 
 2 M. & Rob. 292— Maule. 
 
 An indictment on 9 Geo. 4, c. 31, 
 s. 14, for endeavouring to conceal 
 the birth of a dead child, need not 
 have stated whether the child died 
 before, at, or after its birth. Reg. 
 V. Goxhead, 1 C. & K 623— Piatt. 
 
 An indictment for that offence, 
 which charged that the defendant 
 did cast and throw the dead body 
 of the child into soil in a privy, 
 "and did thereby then and there 
 unlawfully dispose of the dead body 
 of the child, and endeavour to con- 
 ceal the birth thereof," sufiiciently 
 charged the endeavour to conceal 
 the birth, as the word " thereby " 
 applied to the endeavour, as well as 
 to the disposing of the dead body. 
 lb. 
 
 Where an indictment for conceal- 
 ing the birth of a child alleged the 
 concealment to have been in and 
 among a certain heap of carrots, 
 and the evidence was that the body 
 was laid upon the heap, but behind 
 
 Digitized by Microsoft® 
 
EVIDENCE. 
 
 105 
 
 it, so that it was hidden from the 
 passers-by by the upper part of the 
 heap. Semble, that the evidence 
 did not support the indictment. 
 
 Iteg. V. , 6 Cox, C. C. 391— 
 
 Crompton. 
 
 Held, that the provision of 14 & 
 15 Vict, c, 100, s. 1, empowering 
 the judge to amend certain varian- 
 ces between the indictment and the 
 evidence, did not extend to such an 
 amendment as this. Ih. 
 
 Where proof that a woman was 
 delivered of a child and allowed 
 others to take away the body, was 
 held insufficient to sustain an indict- 
 ment against her for concealment 
 of birth. Reg. Y. Bate, 11 Cox, C. 
 C. 686. 
 
 3. Evidence. 
 
 Where there is no clear evidence 
 of an offence having been commit- 
 ted, a police officer is not justified, 
 in consequence of mere ruinors in a 
 neighbourhood, in putting search- 
 ing questions to a person for the 
 purpose of eliciting the proof of a 
 crime, as well as of that person's 
 connection with it. After the in- 
 vestigation before a magistrate on 
 a charge of concealment of birth, 
 and after the accused had been cau- 
 tioned in the usual manner, and 
 had stated that she had nothing to 
 say, but before her actual commit- 
 tal, the presiding magistrate asked 
 her what she had done with the 
 body of the child : — ^Held, that her 
 statement in answer was not admis- 
 sible ; nor would the judge allow a 
 witness to be asked whether, in con- 
 sequence of such statement, he did 
 a particular thing. Reg. v. Berri- 
 man, 6 Cox, C. C. 388— Erie. 
 
 The prisoners were sent for trial 
 receiving the usual caution from the 
 magistrate as to anything they 
 might say : — A. made a statement, 
 which was taken down in writing, 
 and attached to the depositions : — 
 Held, that the latter statement of 
 A. might be read at the trial as ev- 
 idence against herself. Ih. 
 
 The defendant was indicted for 
 the concealment of the dead body 
 of her child. The evidence as to 
 identiiication was not sufficient to 
 warrant a conviction: — Held, that 
 evidence must be clear and direct 
 to identify the body found as the 
 child of which the party was said 
 to have been delivered, or convic- 
 tion will not follow. Reg. v. Wil- 
 liams, 11 Cox, C. C. 684. 
 
 A., being questioned by a police 
 officer about the concealment of a 
 birth, gave answer which caused 
 the officer to say that it were better 
 for her to tell the truth and not a 
 lie : — Held, that a further statement 
 to the officer was inadmissible in 
 evidence against her, as not being 
 free and voluntary. Reg. v Bate, 
 11 Cox, C. C. 686. 
 
 A. was taken into custody and 
 placed with B. and C, charged 
 as accomplices with concealment 
 of birth. All three made state- 
 ments : — Held, that their statements 
 were not affected by the previous 
 inducement to A., and were admis- 
 sible against B. and C. respectively, 
 but that made by A. was not so. 
 lb. 
 
 XI. CONSPIEACT. 
 
 1. The Offence, 105. 
 
 2. Trade Combinations, 107. 
 
 3. Parties Indictable, 109. 
 
 4. Indictment, 109. 
 
 5. Particulars of Overt Acts, 113, 
 
 6. Evidence, 113. 
 
 7. Trial and Verdict, in . 
 
 8. New Trial, 118. 
 
 1. TTie Offence. 
 
 An indictment for conspiracy, at 
 common law, will lie for enticing a 
 young woman under age to leave 
 her father's house, and live in for- 
 nication with one of the defendants ; 
 and concerting measures, with her 
 own approbation, to carry her off 
 and conceal her for that purpose. 
 Rex V. Gray, (Lord), 1 East, P. C. 
 460. 
 
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106 
 
 CONSPIRACY. 
 
 Prisoners were found guilty upon 
 an indictment charging them with 
 conspiring to solicit, persuade, and 
 procure an unmarried girl, of the 
 age of seventeen, to become a com- 
 mon prostitute, and with having, in 
 pursuance of that conspiracy, solic- 
 ited, incited and endevoured to pro- 
 cure her to become a common pros- 
 titute : — Held, that although com- 
 mon prostitution was not an indict- 
 able offence, it was unlawful, and 
 the indictment therefore good, with- 
 out averring that the prosecutrix 
 was a chaste woman at the time of 
 the conspiracy. Beg. v. Howell, 4 
 P. & P. 160— Bram well and Re- 
 corder Gurney. 
 
 Two women induced a girl of fif- 
 teen, who had left her place as a 
 servant, to go to their house, one 
 of them pretending that she had 
 known her deceased parents, and 
 saying that she would keep her un- 
 til she got a place, and that they 
 both would assist her in getting one. 
 They were both women of bad 
 character, and the place where they 
 resided was a house of ill-fame. It 
 was false that they or either of them 
 had known the parents of the prose- 
 cutrix, and they took no step what- 
 ever to get her a place, but urged 
 her to have recourse to prostitution. 
 They introduced a man to her, and 
 attempted, by persuasion, and hold- 
 ing out prospects of money, to in- 
 duce her to consent to illicit con- 
 nexion with him. She refused to 
 consent, and declared her intention 
 of quitting the house ; the pris- 
 oners refused to give her up her 
 clothes, and she left without them : 
 — ^Held, that they were rightly con- 
 victed of a conspiracy, and that 
 they might have have been indicted 
 for the offence at common law. 
 Reg. V. Mears, 2 Den. C. C. 79 ; T. 
 & M. 4U ; 15 Jur. 66 ; 20 L. J., 
 M. C. 59 ; 4 Cox, C. C. 423. 
 
 A conspiracy to procure a mar- 
 riage between poor persons of differ- 
 ent parishes, for the purpose of ex- 
 onerating the parish of the woman 
 
 and charging the other parish, is 
 not an indictable offence, unless the 
 parties are unwilling to marry, or 
 some forcible or fraudulent means 
 of bringing about the marriage were 
 resorted to. Hex v. Seward, 3 N. 
 & M. 557 ; 1 A. & E. 706. 
 
 A conspiracy to exonerate from 
 the prospective burthen of main- 
 taining a pauper, not at the time 
 actually chargeable, and to throw 
 the burthen upon another parish, by 
 means not- in themselves unlawful, 
 is not indictable. Ih. 
 
 If a man and woman marry in 
 the name of another, for the pur- 
 pose of raising a specious title to the 
 estate of the person whose name is 
 assumed, it is a conspiracy. Rex v. 
 Robinson, 1 Leach, C. C. 37; 2 
 East, P. C. 1010. 
 
 It is an indictable offence to con- 
 spire on a particular day by false 
 rumors, to raise the price of the pub- 
 lic government funds, with intent 
 to injure the subjects who should 
 purchase on that day. Rex v. De 
 Berenger, 3 M. & S. 68. 
 
 Getting money out of a man by 
 conspiring to charge him with a 
 false fact is indictable as a conspir- 
 acy, whether the fact charged is 
 criminal or not in itself Bex v. 
 Rispal, 1 W. Bl. 368; 3 Burr. 1320. 
 
 If brokers agree together, before 
 a sale by auction, that one only of 
 them should bid for each article 
 sold, and that all articles thus 
 bought by any of them should be 
 sold again among themselves at a 
 fair price, and the difference be- 
 tween the auction price and the fair 
 price divided among them : this is 
 a conspiracy for which they are in- 
 dictable. Levi V. Levi, 6 C. & P. 
 239— Gurney. 
 
 A conspiracy to extort money is 
 per se an offence at common law, 
 and need not be charged to be at- 
 tempted by unlawful means. Rex 
 V. HoUingherry, 6 D. & R. 345 ■ 4 
 B. & C. 329. 
 
 An information will be granted 
 for a conspiracy by a master, an at- 
 
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TRADE COMBINATIONS. 
 
 107 
 
 tomey, and a gentleman, to assign 
 over a female apprentice, by her 
 own consent, for the purpose of 
 prostitution. Rex v. Delaval, 3 
 Burr. 1434 ; 1 W. Bl. 410, 439. 
 
 So, for a combination to fix the 
 price of salt. Rex v. Norris, 2 Ld. 
 Ken. 300. 
 
 An indictment will lie for a con- 
 spiracy to obtain money as a re- 
 ward for an appointment to an office 
 under government. Rex y. Poll- 
 man, 2 Camp. 229 — EUeuborongh. 
 
 On an indictment for conspiracy 
 for the sale and transferring of a 
 railway excursion ticket, not trans- 
 ferrable : — Held, that the prisoners 
 must be acquitted, unless there was 
 a previous concert between them to 
 obtain the ticket, for the purpose of 
 its being fraudulently used. Reg. 
 V. Absolon, 1 F. & F. 498— Wight- 
 man. 
 
 The directors of a joint-stock 
 bank, knowing it to be in a state of 
 insolvency, issued a balance-sheet 
 shewing a profit, and thereupon de- 
 clared a dividend of six per cent. 
 They also issued advertisements in- 
 viting the public to take shares up- 
 on the faith of their representations 
 that the bank was in a flourishing 
 condition. On an ex officio infor- 
 mation filed by the Attorney-Gen- 
 eral, they were found guilty of a 
 conspiracy to defraud. Reg. v. 
 Brown, 7 Cox, C. C. 442 ; Reff. v. 
 Mdaile, 1 F. & F. 213; Cook Ev- 
 ans' Rep. (1858). 
 
 The offence of conspiracy is ren- 
 dered complete by the bare engage- 
 ment and association of two or 
 more persons to break the law, 
 without any act being done in pur- 
 suance thereof by the conspirators. 
 O'Gonnell V. Reg. (in error), 11 C. 
 & F. 155 ; 9 Jur. 25. 
 
 An indictment will lie for con- 
 spiring by false representations of 
 fact to induce a person to forego a 
 claim, although the result of such 
 conspiracy is not to deprive him of 
 his right to enforce payment thereof 
 by action. Reff. v. Carlisle, Dears. 
 
 Digitized by Microsoft® 
 
 C. C. 337 ; 2 C. L. R. 479 ; 18 Jur. 
 386 ; 23 L. J., M. C. 108 ; 6 Cox, 
 C. C. 366. 
 
 A. and B. in concert with each 
 other, falsely pretended to C. that a 
 horse which they had for sale had 
 been the property of a lady deceased, 
 and was then the property of her 
 sister, and was not then the proper- 
 ty of any horse-dealer, and that the 
 horse was quiet to ride and drive, and 
 by these misrepresentations induced 
 C. to purchase the horse: — Held, 
 that they were indictable for con- 
 spiracy, althpugh the money was to 
 be obtained through the medium of 
 a contract. Reg. v. Kenrick, 5 Q. 
 B. 49 ; D. & M. 208 ; 7 Jur. 848 ; 
 12 L. J., M. C. 135. 
 
 Where the evidence in support 
 of a conspiracy shews the object of 
 the conspiracy to be in itself fel- 
 onious, and that a felony was com- 
 mitted in carrying it out, the de- 
 fendants are not entitled to an ac- 
 qviittal on the ground that the mis- 
 demeanor is merged in the felony ; 
 nor is it any ground for arresting 
 the judgment, that on the face of 
 the indictment itself the object of 
 the conspiracy amounts to a felony, 
 the gist of the offence charged being 
 the conspiracy. Reg. v. Button, 11 
 Q. B. 929 ; 12 Jur. 1017; 18 L. J., 
 M. C. 19 ; 3 Cox, C. C. 229. 
 
 An indictment for conspiracy to 
 violate the provisions of a statute 
 will he after the repeal of such stat- 
 ute, for an offence committed be- 
 fore the repeal. Reg. v. Thompson, 
 16 Q. B. 832 ; Dears. C. C. 3 ; 15 
 Jur. 654; 20 L. J., M. C. 183. 
 
 A conspiracy cannot exist without 
 the consent of two or more persons, 
 and their agreement is an act in 
 advancement of the intention which 
 each of them has conceived in his 
 mind. Mukahy v. Reg. (in error), 
 3 L. R., H. L. Cas. 306 : .S*. O., Ir. 
 Q. B., 1 Ir. R., C. L. 13. 
 
 2. Trade Combinations. 
 A combination of workmen, for 
 the purpose of dictating to masters 
 
108 
 
 CONSPIRACY. 
 
 whom they shall employ, is indict- 
 able. Bex V. Bykerdike, 1 M. & 
 Rob. 179— Patteson. 
 
 An indictment for a conspiracy 
 to impoverish a man, by preventing 
 him from working at his trade, need 
 not state the overt acts used to ef- 
 fect the intended mischief. Hex v. 
 Eccles, 1 Leach, C. C. 274. 
 
 A conspiracy to obstruct a manu- 
 facturer in carrying on his business, 
 by inducing and persuading work- 
 men who had been hired by him to 
 leave his service, in order to force 
 him to raise his rate of wages, or to 
 make an alteration in the mode of 
 conducting and carrying on his 
 trade, is an indictable offence ; and 
 an agreement to induce and per- 
 suade worlanen, under contracts of 
 servitude for a time certain, to ab- 
 sent themselves from such service, 
 is an indictable offence, although 
 no threats or intimidation are prov- 
 ed, or any ulterior object averred. 
 Reg. V. Duffield, 5 Cox, C. C. 404 
 —Erie. 
 
 Workmen who agree that none 
 of those who make the agreement 
 will go into employ unless for a 
 certain rate of wages, have no right 
 to agree to molest, or intimidate, or 
 annoy other workmen in the same 
 line of business, who refuse to enter 
 into the agreement, and who choose 
 to work for employers at a lower 
 rate of wages. Ih. 
 
 In these cases the essence of the 
 offence is the combination to carry 
 out an unlawful purpose, and the 
 unlawful combination or conspiracy 
 is to be inferred from the conduct 
 of the parties. Ih. 
 
 If persons conspire together to 
 take away the workmen of a man- 
 ufacturer, that constitutes such an 
 obstruction and molestation of him 
 as to support that part of a count 
 which alleges a conspiracy by mo- 
 lesting and obstructing him. Ih. 
 
 If a handbill says that certain 
 things will be done by certain per- 
 sons, and that handbill is circulated 
 where it is probable those persons 
 
 could see it, and they do the very 
 thing that the handbill indicates they 
 would do, the contents of the hand- 
 bill are admissible against them. 
 
 In order to render the speech of 
 a third person at a meeting admis- 
 sible on an indictment for conspir- 
 ing against third parties, not pres- 
 ent at that meeting, it must be 
 shewn either that such third person 
 was co-operating at that time with 
 the defendants as a co-conspirator, 
 and engaged with them in one com- 
 mon purpose, or that he was acting 
 as the agent of the defendant. Ih. 
 
 An indictment charged the de- 
 fendants with conspiring to force 
 workmen hired and employed by 
 P. in his business of a japanner to 
 depart from their employment, by 
 unlawfully molesting them ; by un- 
 lawfully using threats to them ; by 
 unlawfully intimidating them; by 
 unlawfully molesting P., and by 
 unlawfully obstructing P. so carry- 
 ing on his business, and the work- 
 men so hired : — ^Held, that these 
 counts were sufficiently full and 
 certain, and that the means by 
 which the conspiracy was to be 
 carried on were well stated in the 
 words of the 6 Geo. 4, c. 129, s. 3. 
 Eeg. V. Rowlands, 17 Q. B. 671 ; 
 21 L. J., M. C. 81 ; 5 Cox, C. C. 436. 
 See Hilton v. EchersUy, 1 Jur., N. 
 S. 874 ; 24 L. J., Q. B. 353 ; 6 El. 
 & Bl. 47. 
 
 The Philanthropic Society of 
 Coopers was formed in order to 
 relieve its members when sick, and 
 to provide for their funerals. One 
 of their members was fined by 
 ^them for working in a yard where 
 steam machinery was used, and 
 upon non-payment of the fine they 
 acted in such a way as to prevent 
 him from obtaining work : — Held, 
 an illegal combination and conspir- 
 acy. Reg. V. Hewitt, 5 Cox, C. C. 
 162- Campbell. 
 
 An indictment against journey- 
 men for a conspiracy against their 
 employers, to prevent them from 
 
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INDICTMENT. 
 
 109 
 
 taking any apprentices, is proved by 
 evidence of their having quitted 
 their employment with an intention 
 to compel such employers to dis- 
 miss any person as an apprentice. 
 Hex. V. Ferguson, 2 Stark. 489 — 
 Wood. 
 
 An indictment for conspiring " to 
 prevent the workmen of J. G. from 
 continuing to work, &c.," iS sup- 
 ported by evidence of a conspiracy 
 to prevent any from continuing, 
 &c. Sex V. Byherdike, 1 M. & 
 Rob. 179— Patteson. 
 
 3. Parties Indictable. 
 
 Where two conspire, and one 
 dies, the other may still be indicted 
 for the conspiracy. Bex v. NichoUs, 
 13 East, 412, n. 
 
 Three persons being in a public- 
 house with the prosecutor, one of 
 them in concert with the other two 
 placed a pen case on the table and 
 left the room. Whilst he was ab- 
 sent, one of the two remaining took 
 the pen out of the case, and put a 
 pin in its place, and the two in- 
 duced the prosecutor to bet with 
 the other, when he returned into 
 the room, that there was no pen in 
 the case, and the prosecutor staked 
 50s. On the pencil case being 
 turned up, another pen fell into the 
 prosecutor's hand, and the three 
 took the money : — Held, that the 
 evidence supported a conviction up- 
 on a cotmt charging the three with 
 conspiring by false pretences and 
 fraudulent devices to cheat the 
 prosecutor of his money, although 
 it appeared that he had the inten- 
 tion of cheating one of the three if 
 he could. Reg. v. Hudson, Bell, 
 C. C. 263 ; 8 Cox, C. C. 305 ; 6 
 Jur., N. S. 566 ; 29 L. J., M. C. 
 145 ; 8 W. R. 421 ; 2 L. T., N. S. 
 263. 
 
 4. Indictment. 
 
 In an indictment for a conspiracy 
 to extort money, one count averred 
 that the defendants, in pursuance of 
 a conspiracy to extort money from 
 
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 the prosecutor, falsely exhibited cer- 
 tain indictments against him ; an- 
 other count averred that the de- 
 fendants, in pursuance of the like 
 conspiracy, oifered to suppress an 
 indictment pending against the 
 prosecutor, if he would give them 
 money for so doing. The jury 
 found the defendants guilty, but 
 found specially, that the indict- 
 ments preferred by them against 
 the prosecutor were not false : — 
 Held, that the averment in the 
 former count was immaterial, and 
 that the latter count would support 
 the conviction. Bex v. HolUngher- 
 ry, 6 D. & R. 345 ; 4 B. & C. 329. 
 
 An indictment to conspire to raise 
 the price of funds with intent to 
 injure the persons who should pur- 
 chase is well enough, without speci- 
 fying the particular persons who 
 purchased as the persons intended 
 to be injured. Bex v. De Seren- 
 ger, 3 M. & S. 68. 
 
 An indictment charged that the 
 defendants conspired, by divers false 
 pretences and subtle means and de- 
 vices, to obtain from A. divers large 
 sums of money, and to cheat and 
 defraud him thereof: — Held, that 
 the gist of the offence being the 
 conspiracy, it was quite sufficient 
 only to state that fact and its ob- 
 ject, and not necessary to set out 
 the specific pretences. Bex v. GUI, 
 2 B. & A. 204. 
 
 In an indictment for a conspira- 
 cy, in producing a false certificate 
 in evidence, it is not necessary to 
 set forth that the defendants knew 
 at the time of the conspiracy that 
 the contents of the certificate were 
 false ; it is sufficient that for such 
 purpose they agreed to certify the 
 fact as true, without knowing that 
 it was so. Bex v. Mawbey, 6 T. R. 
 619. 
 
 An indictment to cheat and de- 
 fraud a party of the fruits and ad- 
 vantages of a verdict obtained, is 
 too general, and bad in point of 
 law. Bex v. BicMrdson, 1 M. & 
 Rob. 402 — Denman. 
 
110 
 
 CONSPIRACY. 
 
 . Where the overt acts were charged 
 to have been done with intent to de- 
 fraud L. G., who was entitled to re- 
 ceive the sum of money in question, 
 and the jury found that L. G., was 
 not so entitled : — Held, that a ver- 
 dict of guilty could not be support- 
 ed. Reg. V. Dean, 4 Jur. 364. 
 
 A count for conspiring to deceive 
 and defraud divers of her majesty's 
 subjects who should bargain with 
 the defendants for the sale of goods, 
 of great quantities of such goods, 
 without making payment, remuner- 
 ation or satisfaction for the same, 
 with intent to obtain profit and 
 emolument to the defendants (not 
 stating with particularity what the 
 defendants conspired to do), is bad, 
 as not shewing that the conspiracy 
 was for a purpose necessarily crim- 
 inal. Beg. V. Peck, 9 A. & E. 686; 
 1 P. & D. 508. 
 
 But it is no objection that the 
 count does not name the parties 
 who were to have been defrauded. 
 Ih. 
 
 A count charging that the de- 
 fendants, being indebted to divers 
 persons, conspired to defraud them 
 of the payment of such debts, and 
 in pursuance of such conspiracy ex- 
 ecuted a false and fraudulent deed 
 of bargain and sale and assignment 
 of certain goods from two of them- 
 selves to a third, with intent there- 
 by to obtain emoluments to them- 
 selves, is bad, for omitting to shew 
 in what respect the deed was false 
 and fraudulent. lb. 
 
 A first count of an indictment 
 charged that the prisoners, intend- 
 ing to defraud one J. G., did con- 
 spire to cheat and defraud J. G., of 
 a certain large sum of money, to 
 wit, 20Z. The second charged a 
 conspiracy, by false pretences, to 
 obtain from J. G. a large sum of 
 money, to wit, 20^., and to cheat 
 and defraud him thereof. The third 
 count charged a conspiracy by false 
 pretences feloniously to steal from 
 J. G. a large sum of money, to wit, 
 20?. The fourth count charged an 
 
 attempt, by false pretences, to ob- 
 tain from J. G. the sum of 20^., 
 with intent to defraud. The fifth 
 and last count charged that the 
 prisoners, by false pretences, did 
 attempt to steal from J. G. a large 
 sum of money, to wit, 20Z., of the 
 monies of the said J. G. The pris- 
 oners were found guilty, and judg- 
 ment was passed on each count. 
 They were convicted on all the 
 counts, and were sentenced to a dis- 
 tinct punishment on each : — Held, 
 that the fifth and last was a good 
 count, and that the conviction must 
 therefore be aflSrmed. JReg. v. Jiid- 
 lock. Dears. C. C. 653 ; 25 L. J., 
 M. C. 92. 
 
 An indictment charging that the 
 defendants unlawfully, fraudulently 
 and deceitfully did conspire, com- 
 bine, confederate and agree togeth- 
 er, to cheat and defraud the prose- 
 cutor of his goods and chattels, is 
 good. SydserffY. Reg. (in error), 
 11 Q. B. 245 ; 12 Jur. 418— Exch. 
 
 An indictment charged that the 
 defendants conspired to cheat and 
 defraud certain Uege subjects of the 
 Queen, being tradesmen, of quanti- 
 ties of their goods ; that, in pursu- 
 ance of the conspiracy, the defend- 
 ant B. fraudulently ordered and 
 obtained upon credit from W. W. 
 and C. W., upholsterers, divers 
 goods of W. W. and C. W. (the 
 count stated a like obtaining on 
 credit from other tradesmen named, 
 and from others whose names were 
 unknown); and that, in further pur- 
 suance of their conspiracy, and in 
 order that the goods might be taken 
 in execution and sold, as after men- 
 tioned, the defendants ordered the 
 same to be delivered by W. W. and 
 C. W. at the house of B., and they 
 were so delivered and never paid 
 for ; and in further pursuance, &c., 
 and in order, &c., B. allowed them 
 to continue in his house till they 
 were taken in execution as after 
 mentioned. That the defendants, 
 in further pursuance, &c., did false- 
 ly and fraudulently pretend that 
 
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INDICTMENT. 
 
 Ill 
 
 certain debts were due from B. to 
 K. and P., two others of the de- 
 fendants, and K. and P. did, to 
 obtain payment of such fictitious 
 debts, by collusion with B., com- 
 mence actions against B.; that K. 
 and P. collusively signed judgment 
 against B. in the actions, and issued 
 execution thereon, by virtue of 
 which the goods, before the expira- 
 tion of the times of credit, were 
 taken in execution, and sold to sat- 
 isfy the fictitious debts : and so the 
 jurors found the defendants in man- 
 ner and means aforesaid did cheat 
 and defraud W. W. and C. W. of 
 the goods : — Held, that the indict- 
 ment was good. Heg. v. King, 7 
 Q. B. 782 ; D. & M. 741 ; 8 Jur. 
 662 ; 13 L. J., M. C. 118. 
 
 Error being brought upon the 
 judgment : — Held, that the indict- 
 ment was bad, for that the words 
 alleging conspiracy shewed a design 
 to injure, not tradesmen indefinite- 
 ly, but individuals, and therefore 
 either the persons should have been 
 named, or an excuse stated for not 
 naming them, and that the allega- 
 tion of conspiracy was not aided 
 by the overt acts ; and that the 
 overt acts themselves did not, 
 either in connexion with the allega- 
 tion of conspiracy, or independent- 
 ly, amount to indictable misde- 
 meanors. King v. Reg. (in error), 
 7 Q. B. 782 ; 9 Jur. 833 ; 14 L. J., 
 M. C. 172— Exch. Cham. 
 
 A count stated that the defend- 
 ants conspired to cause goods, wares 
 and merchandise, which had been 
 imported into the port of London, 
 whereof duties of customs were 
 then and there due and payable, to 
 be taken and carried away from the 
 port, and to be delivered to the 
 owners thereof, without payment of 
 a great part of the duties of cus- 
 toms so then and there due and 
 payable thereon : — ^Held, that the 
 gist of the offence being the con- 
 spiracy, it was not necessary to 
 specify the goods, wares and mer- 
 chandises, or the duties payable 
 
 thereon. Reg. v. Blake, 6 Q. B. 
 126 ; 8 Jur. 145 ; 13 L. J., M. C. 
 131. 
 
 An indictment for a conspiracy 
 to obtain goods by false pretences 
 was bad, before 14 & 15 Vict. o. 
 100, s. 8, if it did not state to whom 
 the goods belonged. Reg. v. Park- 
 er, 2 G. & D. 709 ; 3 Q. B. 292 ; 6 
 Jur. 822. 
 
 A count charged the defendants 
 with a conspiracy, by false pre- 
 tences and subtle means and de- 
 vices, to extort from T. E., one 
 sovereign, his monies, and to cheat 
 and defraud him thereof; the evi- 
 dence failed to prove that the de- 
 fendants employed any false pre- 
 tence in the attempt to obtain the 
 money : — Held, that so much of the 
 count might be rejected as surplus- 
 age, and the defendants convicted 
 of the conspiracy to extort and de- 
 fraud. Reg. V. Yates, 6 Cox, C. 
 C. 441. 
 
 In an indictment for conspiracy 
 at common law to effect objects 
 prohibited by a statute, it is enough 
 to follow the words of the act of 
 parliament. Reg. v. Rowlands, 2 
 Den. C. C. 364 ; 16 Jur. 268 ; 21 
 L. J., M. C. 81. 
 
 An indictment that C. died pos- 
 sessed of East India stock, leaving 
 a widow ; that the defendants con- 
 spired, by false pretences and false 
 swearing, to obtain the means and 
 power of obtaining such stock ; that 
 in pursuance of such conspiracy, 
 they caused* to be exhibited in the 
 prerogative Court of Canterbury a 
 false affidavit made by one of them, 
 in which the deponent stated that 
 C.'s widow had died without tak- 
 ing out administration to C, and 
 that deponent was one of her chil- 
 dren ; and that the defendants 
 fraudulently obtained to deponent, 
 as one of the children of C, a 
 grant of administration to his es- 
 tate. On motion to arrest the judg- 
 ment, on the ground that a charge 
 of conspiracy to obtain the means 
 and power of obtaining the stock, 
 
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112 
 
 CONSPIRACY. 
 
 did not describe any offence : — 
 Semble, that the statement of the 
 overt act done in furtherance of the 
 objects of conspiracy was so inter- 
 woven with the charge of conspir- 
 acy itself, as to show an unlawful 
 conspiracy. Wright v. Beg. (in 
 error), 14 Q. B. 148. 
 
 But held, that at all events the 
 overt acts in themselves consti- 
 tuted a misdemeanor, on which the 
 court could legally pronounce judg- 
 ment, lb. 
 
 A count merely charging con- 
 spiracy in the same manner, with- 
 out alleging the overt acts, is bad. 
 lb. 
 
 The defendants were tried at a 
 quarter sessions upon an indict- 
 ment, one of the counts of which 
 charged a conspiracy, " by divers 
 false pretences against the statute 
 in that case made and provided, 
 the said R. B. of his monies to de- 
 fraud, against the form of the stat- 
 ute": — ^Held, that the count suffi- 
 ciently charged a conspiracy to ob- 
 tain money by false pretences, and 
 that it must be taken, after verdict, 
 that the conspiracy was one of which 
 a court of quarter sessions had cog- 
 nizance, under 5 & 6 Vict. c. 38, s. 
 1. Ixttham V. Heff. (in error), 9 
 Cox, C. C. 516 ; 5 B. & S. 635 ; 10 
 Jur., N. S. 1145 ; 33 L. J., M. C. 
 197 ; 12 W. R. 908 ; 10 L. T., N. 
 S. 671. 
 
 A count is good which simply 
 charges that the defendants, unlaw- 
 fully, &c., did conspire, combine, 
 confederate and agree together, by 
 divers false pretences and indirect 
 means, to cheat and defraud R. of 
 his monies. Heff. v. Gompertz, 9 
 Q. B. 824; 11 Jur. 204; 16 L. J., 
 Q. B. 121. 
 
 In an indictment charging a con- 
 spiracy to cheat and den-aud J. D. 
 and others of goods, and laying as 
 an overt act the obtaining goods of 
 J. D. and others, the word " others" 
 must mean " others his partners" 
 throughout, and evidence of con- 
 spiring to defraud other persons 
 
 than J. D. and his partners is ad- 
 missible. Beg. V. Steel, 2 M. C. C. 
 246 ; Car. & M. 337. 
 
 An indictment that certain per- 
 sons " unlawfully, maliciously and 
 seditiously did conspire and agree 
 with each other, and with divers 
 other persons unknown, to raise and 
 create discontent and disaffection 
 amongst the liege subjects of her 
 Majesty, and to excite such subjects 
 to hatred and conteinpt of the gov- 
 ernment and constitution of this 
 realm as by law established, and to 
 unlawful and seditious opposition to 
 the government and constitution ; 
 and also to stir up jealousies, hatred 
 and ill-will between different classes 
 of her Majesty's subjects, and es- 
 pecially amongst her Majesty's sub- 
 jects in Ireland, feelings of ill-will 
 and hostility towards and against 
 her Majesty's subjects in other parts 
 of the United Kingdom called En- 
 gland": — Held, that this state- 
 ment, with or without the addi- 
 tional charge, " and to assume and 
 usurp the prerogative of the crown 
 in the establishment of courts for 
 the administration of law," consti- 
 tuted a definite charge against the 
 several defendants of an agreement 
 between them to do an illegal act. 
 O'CorvneU v. Reg. (in error), 11 C. 
 & F. 155 ; 9 Jur. 25. 
 
 A count setting forth an agree- 
 ment between persons "to cause 
 and procure, and aid and assist in 
 causing and procuring, diverse sub- 
 jects of her Majesty, unlawfully, 
 maliciously and seditiously, to meet 
 and assemble together in large 
 numbers, at various times and at 
 different places within L-eland, for 
 the unlawful and seditious purpose 
 of obtaining, by means of the intimi- 
 dations to be thereby caused, and by 
 means of the exhibition and dem- 
 onstration of great physical force 
 at such assemblies and meetings, 
 changes and alterations in the gov- 
 ernment, laws and constitution of 
 the realm by law established," 
 whether or not comprehending the 
 
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EVroENCE. 
 
 113 
 
 additional words, " and especially, 
 by the means aforesaid, to bring 
 about and accomplish a dissolution 
 of the legislative union now subsist- 
 ing between Great Britain and Ire- 
 land," and whether or not omitting 
 the words " imlawfully, maliciously 
 and seditiously," does not sufficient- 
 ly state the illegal purpose of such 
 agreement, and is, therefore bad 
 for uncertainty. Ih. 
 
 The word " intimidation," not 
 being vocabulum artis, has not, nec- 
 essarily, a meaning in a bad sense ; 
 and iu order to give it legal effica- 
 cy, it should at least appear, from 
 the context of the indictment, what 
 species of fear was intended, and 
 upon whom such fear was meant to 
 operate. Ih. 
 
 5. Particulars of Overt Acts. 
 
 Particulars in an indictment for 
 conspiracy having been ordered of 
 overt acts, the counsel for the 
 Crown were confined within them ; 
 but particulars pending the trial 
 having been ordered, of bad debts 
 incurred to the bank by one of the 
 defendants, the Crown was not re- 
 strained, next day, the particulars 
 not having been delivered, from 
 giving evidence on that head. Beg. 
 V. Esdaik, 1 F. & F. 213 S. G., 
 Beg. V. Brown, 8 Cox, C. C. 69— 
 Campbell. 
 
 If the counts for a conspiracy are 
 framed in a general form, a judge 
 will order that the prosecutor 
 should furnish the defendants with 
 a particular of the , charges ; and 
 that particular should give the 
 same information to the defendants 
 that would be given by a special 
 count. But, the judge will not 
 compel the prosecutor to state in his 
 particular the specific acts with 
 which the defendants are charged, 
 and the times and places at which 
 those acts are alleged to have oc- 
 curred. Bex V. ImmiUon, 7 C. & 
 P. 448— Littledale. 
 
 Whei'e an indictment for con- 
 spiracy charges the offence in gen- 
 Fisii. Dig.— S. 
 
 Digitized by Microsoft® 
 
 eral terms, the defendant is entitled 
 to particulars of the charge, al- 
 though there has been a previous 
 committal by a magistrate. There- 
 fore, where an indictment contain- 
 ed counts charging a conspiracy to 
 cheat tradesmen of goods, without 
 mentioning any specific case, or 
 name, time or place : — Held, that 
 the defendant was entitled to such 
 particulars. Beg. v. Rycroft, 6 Cox, 
 C. C. 76— Williams. 
 
 6. Evidence. 
 
 On an indictment for conspiracy, 
 where there is evidence of sever- 
 al persons having engaged therein, 
 what is said by any of them at an- 
 other time and place respecting the 
 object of the conspiracy is evidence 
 against the others. Bex v. Salter, 
 5 Esp. 125 — Hotham. And see Rex 
 Y. Ihmmond, 2 Esp. 719. 
 
 So, in an indictment for a con- 
 spiracy to cause themselves to be 
 believed persons of large property, 
 for the purpose of defrauding trades- 
 men, the prosecutor may give var- 
 ious instances of their giving a false 
 representation of their circumstau; 
 ces, as overt acts of the conspiracy. 
 Bex V. Boherts, 1 Camp. 399 ; 2 
 Leach, C. C. 987, n.— EUenbor- 
 ough. 
 
 - But the wife of one defendant 
 cannot be called on behalf of a co- 
 defendant, though the parties ap- 
 pear and defend separately. Bex 
 V. Locker, 5 Esp. 107— Ellenbor- 
 ough. 
 
 Sfor one defendant who suffers 
 judgment by default. Bex v. La- 
 fone, 5 Esp. 155 — Ellenborough. 
 
 If, on a charge of conspiracy, it 
 appears that two persons, by their 
 acts, are pursuing the same object 
 often by the same means, one per- 
 forming part of an act, and the oth- 
 er completing it, for the attainment 
 of the object, the jury may draw the 
 conclusion that there is a conspiracy. 
 Beg. V. Murphy, 8 C. & P. 297— 
 Coleridge. 
 
 If a conspiracy is formed, and a 
 
114 
 
 CONSPIRACY. 
 
 person joins it afterwards, he is 
 equally guilty with the original 
 conspirators. Ih. 
 
 On the trial of an indictment for 
 a conspiracy to procure large num- 
 bers of persons to assemble for the 
 purpose of exciting terror in the 
 minds of her Majesty's subjects, ev- 
 idence was given of several meet- 
 ings at which the defendants were 
 present, and it was proposed to a^ 
 a witness, who was superintendent 
 of the police, whether persons com- 
 plained to him of being alarmed by 
 these nleetings: — Held, that the 
 evidence was receivable, and that 
 it was not necessary to call the per- 
 sons who made the complaints. 
 Eeg. V. Vincent, 9 C. & P. 275— 
 Gurney. 
 
 A. was charged with having con- 
 spired with J. and others unlmown 
 to raise insurrections and obstruct 
 the laws. It was proved that A. 
 and J. were members of a chartist 
 lodge, and that A. and J. were at 
 the house of the latter on a certain 
 day, on the evening of which A. 
 directed the people assembled at 
 the house of J. to go to the race- 
 course at P., whither J. and other 
 persons had gone : — ^Held, that, on 
 the trial of A., evidence was receiv- 
 able that J. had at an earlier part 
 of the day, directed other persons 
 to go to the race-course ; and it be- 
 ing proved that J. and an armed 
 party of the persons assembled went 
 from the ■ New Inn : — ^Held, that, 
 evidence might be given of what J. 
 said at the New Inn, it being all 
 one transaction. Heg. v. SheUard, 
 9 C. & P. 277— Patteson.' 
 
 General evidence of the conspir- 
 acy charged may be received in the 
 first instance, although it cannot 
 affect the defendant unless after- 
 wards brought home to him, or to 
 an agent employed by him. And 
 the same rule applies where a de- 
 fendant seeks by such general evi- 
 dence in the first instance to affect 
 the prosecutor with a conspiracy to 
 suborn witnesses for the destruction 
 
 of the defence, provided the pro- 
 posed evidence is previously opened 
 to the court, as in the case of a pros-' 
 ecution to be proved by conspiracy. 
 The Queen's case, 2 B. & B. 302. 
 
 On an indictment for conspiring 
 and unlawfully meeting for the pur- 
 pose of exciting discontent and dis- 
 affection, resolutions passed at a for- 
 mer meeting, in another place, and 
 at which one of the defendants pre- 
 sided, the professed object of which 
 meeting was to fix the meeting 
 mentioned in the indictment, are 
 admissible to shew the intention o 
 such defendant in assembling and 
 attending the meeting in question, 
 at which he also presided. Hex v. 
 Biini, 3 B. & A. 566. 
 
 A copy of these resolutions deliv- 
 ered by such defendant to a witness 
 at the time of the former meeting, 
 as the resolutions then intended to 
 be proposed, and which con-espond- 
 ed with those which the witness had 
 heard read from a written paper, is 
 admissible without producing the 
 original. lb. 
 
 And large bodies of men having 
 come to the latter meeting from a 
 distance, marching in regular order, 
 it was admissible to shew the char- 
 acter and intention of the meeting, 
 that within two days of the same 
 great numbers of men were seen 
 training and drilling before day- 
 break, at a place from which one of 
 these bodies had come to the meet- 
 ing, and on their discovering the 
 persons who saw them, they ill- 
 treated them, . and forced one of 
 them to take an oath never to be a 
 king's man again ; and it was ad- 
 missible, for the same purpose, to 
 shew that another body of men in 
 their progress to the meeting, on 
 passing the house of one of the per- 
 sons who had been so ill-treated, 
 expressed their disapprobation at 
 his conduct by hissing. lb. 
 
 An indictment for a conspiracy 
 contained several counts, alleging 
 several misdemeanors on the same 
 day: — Held, that the prosecutor 
 
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EVIDENCE. 
 
 115 
 
 might give evidence of several mis- 
 demeanors on different days. Hex 
 V. Levy, 2 Stark. 458— Abbott. 
 
 On an indictment for a conspira- 
 cy, the letters of one of the defend- 
 ants to the other are, under certain 
 circumstances, admissible in evi- 
 dence in his favor, to shew that he 
 was the dupe of the other, and was 
 not himself a participator in the 
 fraud. Hex v. Whitehead, 1 C. & P. 
 67— Best. 
 
 A party may be convicted of a 
 conspiracy to cheat and defraud, by 
 means of a false and fraudulent rep- 
 resentation as to the solvency or the 
 trade of another, although the rep- 
 resentation was oral, and one for 
 which per se, he would not be civ- 
 illy liable under 9 Geo. 4, c. 16, s. 
 14 ; but the question will be not 
 merely whether the representation 
 was false and fraudulent, but 
 whether it was made in collusion 
 with the co-defendant, for the pur- 
 pose of cheating the prosecutor. 
 Heff. V. Timothy, 1 P. & P. 39— 
 Channell. 
 
 On an indictment for a conspiracy 
 to defraud by false representations 
 of solvency, the defendants may be 
 convicted who had no knowledge of 
 the transactions which resulted in 
 insolvency, provided they were 
 aware of the result, and concurred 
 in the representations in furtherance 
 of the common design, even al- 
 though .they did so with no motive 
 of particular benefit to themselves. 
 Beg. V. Esdaik, 1 P. & P. 213 ; S. 
 C. nom. Reg. v. Brown, 7 Cox, C. 
 C. 442— Campbell. 
 
 Overt acts in conspiracy, though 
 not necessarily laid, and if laid not 
 proved as against all the defend- 
 ants, may be looked at as shewing 
 the object of the conspiracy. lb. 
 
 Certain wharfingers and their serv- 
 ants were indicted for a conspiracy 
 to defraud by false statements as to 
 goods deposited with them and in- 
 sured by the owners against fire : — 
 
 servants, which would be for the • 
 benefit of the masters, and that af- 
 terwards the servants took fraudu- 
 lent means to conceal the falsehood 
 of the statements, with evidence that 
 the employers had the means of 
 knowing the falsehood, and knew of 
 the devices used to conceal it, was no 
 evidence to sustain the charge of a* 
 fraudulent conspiracy between the 
 employers and servants. Heg. v. 
 Barry, 4 P. & P. 389— Martin. 
 
 A prisoner was indicted in one 
 count for obtaining money from the 
 trustees of a savings bank by pre- 
 tending that a document produced 
 by the wife of T. had been filled up 
 by his authority, and in another 
 count for a conspiracy with the wife 
 of T. to cheat the bank. The wife 
 was not indicted. The evidence of T. 
 having been received in support of 
 the indictment, the prisoner was ac- 
 quitted on the count for conspiracy, 
 and convicted on the other : — ^Held, 
 that T.'s evidence was properly re- 
 ceived, and that there was no incon- 
 sistency in the finding of the jury 
 on the two counts. Beg. v. Hcdli- 
 day, 8 Cox, C. C. 298 ; 6 Jur., K. S. 
 514 ; 29 L. J., M. C. 148 ; 8 W. R. 
 423 ; 2 L. T., N. S. 254. 
 
 Where an indictment charges an 
 ordinary conspiracy, it is not neces- 
 sary to prove a common design be- 
 tween the defendants before proving 
 the acts of each defendant ; for the 
 acts of each defendant are only evi- 
 dence against himself, and may be 
 the only means of establishing the 
 conspiracy. Keg. v. Brittain, 3 Cox, 
 C. C. 77— Coltman. 
 
 Information for a conspiracy to 
 cause and procure goods to be im- 
 ported without payment of part of 
 the duties of customs, by entering 
 the goods as less in quantity and 
 quality than they really were. One 
 of the defendants, B., was a land- 
 ing-waiter ; the other T., who did 
 not appear to take his trial, was a 
 Custom-house agent. According to 
 the course of business at the Cus- 
 
 Held, that evidence that false state 
 ments were knowingly sent in by the tom-house, certain goods consigned 
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116 
 
 CONSPIRACY. 
 
 to T. were placed in the custody of 
 
 B. and, upon the examination of 
 them, entries of the quantity and 
 quality were made by B. and T. 
 respectively in separate books, and 
 the amount of duty was calculated 
 thereupon: — Held, first, that evi- 
 dence of an entry made by T. in 
 
 •his ledger, purporting to be an entry 
 of the same goods, but varying from 
 the preceding entries in respect to 
 the quantity, was admissible for the 
 purpose of proving the conspiracy, as 
 an act tending towards the object 
 of the conspiracy. Reg. v. Blake, 6 
 Q. B. 126 ; 8 Jur. 666 ; 13 L. J., M. 
 
 C. 131. 
 
 Held, secondly, that evidence of 
 a memorandum made by T. on the 
 counterfoil of a cheque drawn by 
 him, that part of the money arising 
 from the fraud was received by B., 
 was inadmissible, it being a declar- 
 ation of T. after the principal trans- 
 action was complete. Ih. 
 
 In the course of proving a conspir- 
 acy to defraud, carried into effect 
 by prevaihng upon the prosecutor 
 to accept bills, a warrant of attor- 
 ney, given to him for the purpose of 
 inducing him to accept, reciting the 
 acceptance, may be given in evi- 
 dence, though unstamped. Meg. v. 
 Gompertz, 9 Q. B. 824 ; 1 1 Jur. 204 ; 
 16 L. J., Q. B. 121. 
 
 An indictment ibr conspiring to 
 defraud the prosecutor may be sup- 
 ported by proof of a conspiracy to 
 obtain his acceptances, though the 
 prosecutor parts with no money, 
 and though he never has intended 
 to take up the acceptances, and 
 though the bills were never in his 
 hands, except for the purpose of his 
 accepting. Ih. 
 
 Where an indictment for conspir- 
 acy contains several counts, if only 
 a single conspiracy is proved, the 
 verdict may nevertheless be taken 
 on so many of. the counts as describe 
 the conspiracy consistently with the 
 proof Tb. 
 
 In support of an indictment charg- 
 ing a conspiracy to defraud and de- 
 
 prive B. of certain lease-hold messu- 
 ages, whereof B. was lawfully pos- 
 sessed, and to cheat and defraud 
 her of the rents and profits of the 
 messuages ; the evidence as to B.'s 
 title was that F., before her death, 
 directed S., her next-of-kin, to con- 
 vey the messuages to B. on account 
 of a supposed equitable claim of B. 
 to money received by F. S., after 
 the death of F., and before adminis- 
 tration, executed an agreement to 
 assign to B., and went with her to 
 the houses, and pointed out the prop- 
 erty, and said B. was landlady, and 
 he hoped the tenants would not 
 shuffle with her as they had with 
 F. B. afterwards received a small 
 sum as rent. There was no proof 
 that F. or S. was ever in possession, 
 and no other evidence of B.'s title : 
 — Held, that there was some evi- 
 dence of a possession by B. to sup- 
 port the averment in the indictment. 
 Reg. V. Whitehouse, 6 Cox, C. C. 
 129— Cresswell. 
 
 An indictment alleging that I. 
 "W., C. W. and J. W., being persons 
 in indigent circumstances, and in- 
 tending to defraud tradesmen who 
 should supply them ^viih goods up- 
 on credit, conspired to cause J. W. 
 to be reputed and believed to be a 
 person of considerable property, and 
 in opulent circumstances, for the 
 purpose and with the intent of cheat- 
 ing and defrauding divers persons 
 being tradesmen, who should bar- 
 gain with them for the sale to the 
 said I. W. of goods, the property 
 of such last-mentioned persons, of 
 great quantities of such goods, with- 
 out paying for the same, with intent 
 to obtain to themselves money and 
 other profits, is not supported by 
 proof that C. W. and J. W., being 
 the wife and daughter of I. W., rep- 
 resented that they were in inde- 
 pendent circum^stances, their income 
 being interest of money received 
 monthly ; at another time, when en- 
 gaging lodgings, that they were not 
 in the habit of living in lodgings, 
 and that they, obtained various 
 
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TRIAL AND VERDICT. 
 
 117 
 
 goods from tradesmen on credit, 
 Tinder circumstances that shewed 
 an intent to defraud, but no proof 
 being adduced that those goods 
 were obtained by reason of any of 
 those general statements. Reg. v. 
 Whitehome, 6 Cox, C. C. 38 — Piatt. 
 
 A count charging the defendants 
 with conspiring, by divers subtle 
 means and false pretences, to obtain 
 goods and chattels from a trades- 
 man, without paying for them, with 
 intent to defraud him thereof, is 
 siipported by proof of overt acts, 
 from which a conspiracy may be in- 
 ferred, without proof of any such 
 false pretence as is required in an 
 indictment for obtaining goods by 
 false pretences. lb. 
 
 On an indictment against A., B., 
 C, D., E., F., G. and H., for conspir- 
 acy to cheat M. by selling a gland- 
 ered horse as a sound horse, the evi- 
 dence was, that A., having pre- 
 viously cheated M. by selHng him a 
 kicking horse, B., C, D. and E. ob- 
 tained that horse from M. in ex- 
 change for a.glandered horse, which 
 he subsequently sold. A., accom- 
 panied by G., afterwards sold M. 
 another horse, in which transaction 
 the latter was again defrauded. 
 Some evidence was given to shew 
 that A. was frequently in company 
 with some of the other defendants, 
 and that he was aware of a previous 
 sale of the glandered horse by them, 
 but there was no other evidence to 
 connect him with its sale to M. : — 
 Held, that, in the absence of any 
 evidence clearly leading to the con- 
 clusion that A. was a party to that 
 sale, there was no evidence of a 
 conspiracy to go to the jury against 
 him. Seff. v. Meade, 6 Cox, C. C. 
 134 — Cresswell. 
 
 A number of persons was charged 
 with murder, committed by an 
 act done in the course of a con- 
 spiracy for the purpose of liber- 
 ating a prisoner, of which conspir- 
 acy he was cognizant : — Held, that 
 acts of that prisoner, within the 
 prison, and articles found upon him, 
 
 were admissible against the person 
 so charged. Reg. v. Desmond, 11 
 Cox, C. C. 146— Cockburn and 
 Bramwell. 
 
 7. Trial and Verdict. 
 
 An indictment for a conspiracy 
 to defraud is triable at quarter ses- 
 sions. Latham v. Reg. (in error) 5, 
 
 B. & S. 635. 
 
 A was indicted for conspiring 
 with Y. and Z., and other persons 
 to the jurors unknown. The evi- 
 dence was confined to A., Y. and 
 Z., and the jury was of opinion that 
 A. conspired with either Y. or Z., 
 but said that they did not know 
 with which. Y. and Z. were there- 
 upon both acquitted: — Held, that 
 A. was entitled to be acquitted also. 
 Reg. V. Thompson, 16 Q. B. 832; 5 
 Cox, C. C. 166. Reg. v. Denton, 
 Dears. C. C. 3 ; 17 Jur. 453; 20 L. 
 J., M. C. 183. 
 
 Upon a count charging one con- 
 spiracy, and one only, against all 
 the defendants therein named, to 
 effect several illegal objects, the 
 jury may find all or some guilty of 
 conspiring to effect one or more of 
 the objects specified. 0' Gonnell v. 
 Reg. (in error), 11 C. & F. 155; 9 
 Jur. 25. 
 
 Where one defendant in conspir- 
 acy dies between the indictment and 
 trial, it is no ground of a venire de 
 novo for a mis-trial, if the trial pro- 
 ceeds against both, no suggestion 
 of the death being entered on the 
 record. Reg. v. Kenrich, 5 Q. B. 
 49; D. &. M. 208; 7 Jur. 848; 12 
 L. J., M. C. 135. 
 
 One of several prisoners indicted 
 for conspiracy may be tried separ- 
 ately, and upon conviction, judg- 
 ment may be passed on him, al- 
 though the others, who have ap- 
 peared and pleaded, have not been 
 tried. Reg. v. Ahearne, 6 Cox, C. 
 
 C. 6. 
 
 Where three prisoners have been 
 jointly indicted for a conspiracy to 
 murder, and severally pleaded not 
 guilty, but have severed in three 
 
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118 
 
 DUELLING— EMBEZZLEMENT. 
 
 challenges, and the Crown has, con- 
 sequently, proceeded to try one of 
 such prisoners: — Held, that, upon 
 conviction of such prisoner, judg- 
 ment must follow, although the 
 others have not been tried, and that 
 the possibility of the other prisoners 
 being found not guilty (although 
 such a verdict would be a ground 
 for reversing the judgment), is not 
 a sufficient reason for holding such 
 judgment, and all the legal conse- 
 quences of such conviction of such 
 prisoner, irregular. lb. 
 
 8. New Trial. 
 
 Where all of several defendants 
 in an indictment for conspiracy are 
 found guilty, if one of them shews 
 himself entitled to a new trial on 
 grounds not affecting the others, 
 the new trial will nevertheless be 
 granted. Reg. v Gompertz,-^ Q. B. 
 824; 11 Jur. 204; 16 L. J., Q. B. 
 121. 
 
 Xn. Duelling. 
 
 An endeavour to provoke another 
 to commit the misdemeanor of send- 
 ing a challenge to fight, is itself a 
 misdemeanor indictable, particular- 
 ly where such provocation was given 
 by a writing containing libellous 
 matter, and alleged in the prefatory 
 part of the indictment to have been 
 done with intent to do the party 
 bodily harm, and to break the 
 king's peace ; the sending such 
 writing being an act done towards 
 procuring the commission of the 
 misdemeanor meant to be accomp- 
 lished. Rex V. Phillips, 6 East, 
 464 ; 2 Smith, 550. 
 
 If one kills another in a deliberate 
 duel, under provocation of charges 
 against his character and conduct, 
 however grievous, it is miirder in 
 him, and his second, and therefore 
 the bare incitement to fight, though 
 undei- such provocation, is in itself 
 a very high misdemeanor, though 
 no consequence ensues thereon 
 
 the peace. Rex v. JRice, 3 
 East, 581. See Rex v. Kirwan, 2 
 B. & A. 462; Reg. v. Young, 8 C. 
 & P. 644. 
 
 If a man writes a letter with in- 
 tent to provoke a challenge, seals it 
 up and puts it into the post-office in 
 Westminster, addressed to a person 
 in the city of London who receives 
 it there, the writer may be indicted 
 for this offence in the county of 
 Middlesex. Rex v. Williams, 2 
 Camp. 505 — Ellenborough. 
 
 Xm. Embezzlement by Cleeks 
 A,ND Servants. 
 
 1. The Offence, 118. 
 
 2. Amounting to Larceny, or Embez- 
 
 zlement, 134. 
 
 3. Indictment, 136. 
 
 4. Particulars of Charges, 137. 
 
 5. Evidence, 138. 
 
 1. The Offence. 
 
 Statute.]— Bj "24. & 25 Vict. c. 
 96, s. 68, " whosoever, being a clerk 
 " or servant, or being employed for 
 " the purpose or in the capacity of 
 " a clerk or servant, shall fraudu- 
 " lently embezzle any chattel, mon- 
 " ey or valuable security, which 
 " shall be delivered to or received, 
 or taken into possession by him 
 for or in the name or on the ac- 
 " count of his master or employer, 
 " or any part thereof, shall be deem- 
 " ed to have feloniously stolen the 
 " same from his master or employer, 
 " although such chattel, money or 
 " security was not received into the 
 " possession of such master or em- 
 " ployer otherwise than by the ac- 
 "tual possession of his clerk, ser- 
 " vant or other person so emiployed, 
 " and, being convicted thereof, shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for any term not exceeding 
 " fourteen years and not less than 
 " five years (27 & 28 Vict. c. 47), 
 "or to be imprisoned for any term 
 
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THE OFFENCE. 
 
 119 
 
 " not exceeding two years, witli or 
 " without hard labour, and with or 
 " without solitary confinement, and 
 " if a male under the age of sixteen 
 " years, with or without whipping." 
 {Former provision, 7 & 8 Geo. 4, c. 
 29, s. 47, and this statute repealed 
 39 Geo. 3, c. 85.) 
 
 What isJ] — Embezzlement neces- 
 sarily involves secrecy and conceal- 
 ment. If, therefore, instead of de- 
 nying the appropriation of property, 
 the prisoner, in rendering his ac- 
 count, adndts the appropriation, al- 
 leging a right in himself, no matter 
 how unfounded, or setting up an 
 excuse, no matter how frivolous, 
 his offence in taking and keeping is 
 no embezzlement. Meg. v. Norman, 
 Car. & M. 501— Cresswell. 
 
 It was the duty of a servant 
 authorized to receive money for his 
 employer to account to his employ- 
 er on the evening of every day for 
 the money received during the day 
 by him for his employer, and to pay 
 over the amount. He received 
 three sums for his employer on three 
 different days, and neither account- 
 ed for those sums nor paid them 
 over. He never denied the receipt 
 of tiaem, or tendered any written 
 account in which they were omit- 
 ted : — ^Held, that, if he wilfully om- 
 itted to account for these sums and 
 pay them over on the respective 
 days on which he received them, 
 these were embezzlements, and that 
 such wilful omissions to account 
 and pay over were equivalent to a 
 denial of the receipt of them. Reg. 
 V. Jackson, 1 C. & K. 384— Col- 
 eridge. 
 
 It was the duty of a clerk to re- 
 ceive money for his employer and 
 pay wages out of it, and to make 
 entries of all monies received and 
 paid in a book, and to enter the 
 weekly totals of receipts and pay- 
 ments in another book, upon which 
 last book he from time to time paid 
 over his balances to his employer. 
 The clerk having entries of weekly 
 
 Digitized by Microsoft® 
 
 payments in his first book amount- 
 ing to 25Z., he entered them in 
 the second book as 35?. and, two 
 months after, in accounting with 
 his employer, by these means made 
 his balance lOZ. too little, and 
 paid it over accordingly: — Held, 
 that he could not be convicted of 
 embezzlement, without it being 
 shewn that he had received some 
 particular sum on account of his 
 employer, and had converted either 
 the whole or part of that sum 
 to his own use. Beg. v. Chapman, 
 1 C. & K. 119— Wilhams. 
 
 If a person whose duty it is to re- 
 ceive money for his employer, re- 
 ceives money and renders a true ac- 
 count of all the money he has re- 
 ceived, he is not guilty of embezzle- 
 ment if he absconds and does not 
 pay over the money ; but, if he had 
 received the money, and had ren- 
 dered an account in which it was 
 omitted, this would be evidence to 
 shew that he had embezzled the 
 amount. Reg. v. Greed, 1 C. & K. 
 63— Erskine. 
 
 The prisoner, having been intrust- 
 ed by his master with a number of 
 articles of soldiers' clothing for the 
 purpose of selhng them, and ten 
 pounds in silver, to enable him to 
 give change, sailed in a ship for the 
 coast of Africa, having, before his 
 departure, written to his master to 
 say that he would send the account 
 together with a remittance, from 
 Madeira : — Held, that he could not 
 be convicted of embezzlement, hav- 
 ing received the goods from his 
 master himself, and not from an- 
 other for and on account of his 
 master ; but that he might have 
 been convicted of larceny. Reg. v. 
 HawUns, 1 Den. C. C. 584 ; T. & 
 M. 328 ; 14 Jur. 513. 
 
 The prisoner had as a servant, in 
 the course of his duty, received from 
 a fellow-servant money paid to that 
 servant for his master by another 
 servant, who had received it from 
 the customers. It was the duty of 
 the prisoner, after such receipt, to 
 
120 
 
 EMBEZZLEMENT BY CLERKS, ETC. 
 
 hand the money to another servant 
 (the cashier) of his master, but in- 
 stead of handing it over, he fraudu- 
 lently retained it :— Held, that this 
 was embezzlement. Eeg. v. Mas- 
 ters, 1 Den. C. C. 332 ; T. &. M. 1 ; 
 2 C. & K. 930 ; 3 New Sess. Cas. 
 326; 12 Jur. 942; 18 L. J., M. C. 
 2; 3Cox, C. C. 178. 
 
 The prisoner was employed to su- 
 perintend the grinding of com at 
 the mill of a county gaol. It 
 was his duty to direct any person 
 bringing grain to be ground at the 
 mill to obtain a ticket at the por- 
 ter's lodge. This ticket was his or- 
 der for grinding the grain so brought 
 to him, and it would have been a 
 breach of his duty to have ground 
 any grain without a ticket. Having 
 ground the com, he was to receive 
 the money, and hand it over to the 
 governor of the gaol. The prisoner 
 had received money from different 
 persons, whose com he had ground 
 without the production of a ticket, 
 and appropriated it to his own use : 
 — Held, that he had not received 
 the money on account of his master, 
 and was not therefore guilty of em- 
 bezzlement. Reg. V. Harris, Dears. 
 C. C. 344; 2 C. L. R. 464; 18 Jur. 
 408; 23L. J., M. C. 110; 6 Cox, 
 C. C. 363. 
 
 The prosecutor gave some mark- 
 ed money to J. W. to expend at his 
 (the prosecutor's) shop, for the pur- 
 pose of detecting a servant, of whom 
 the master had suspicions. The ser- 
 vant was convicted of embezzling a 
 portion of the marked money: — 
 Held, that the conviction was right. 
 Reg. V. GiU, Dears. C. C. 289 ; 18 
 Jur. 70 ; 23 L. J., M. C. 50; 6 Cox, 
 C. C. 295. 
 
 The prosecutor had contracted 
 with a railway company for finding 
 and providing them with necessary 
 horses and carmen for the purpose 
 of conveying and delivering to the 
 customers of the company the coals 
 of the company in their own wag- 
 gons, and that he or his carmen 
 should day by day duly account for 
 
 and deliver to the company's coal 
 manager all monies received in pay- 
 ment for coals so delivered. The 
 delivery notes, as well as receipted 
 invoices of the coals, were handed 
 to the carmen of the prosecutor, 
 and the former were taken to his 
 olfice, but the invoices receipted by 
 the company were left with the 
 customers on payment of the 
 amount. The prisoner was the 
 servant of the prosecutor, em- 
 ployed as his carman in the deliv- 
 ery of coals pursuant to the con- 
 tract, and it was his duty to pay 
 over direct to the clerks of the 
 company such monies as he might 
 receive for coals. He delivered 
 coals to one of the company's cus- 
 tomers, and brought the delivery 
 order to the office to be entered ; he 
 received for the coals 51. 10s., leav- 
 ing the receipted invoice with the 
 customer, which sum he converted 
 to his own use. He was convicted 
 of embezzling the monies of the 
 prosecutor, who had contracted 
 vnth the company : — Held, that 
 there was such privity between the 
 prisoner and the company as to 
 make the prisoner the agent of the 
 company in receiving the money, 
 and that such money was not re- 
 ceived for or on account of the 
 prosecutor, but for and on account 
 of the company, and that he was 
 wrongly convicted of embezzUng 
 the prosecutor's money. Reg. v. 
 Beaumcmt, Dears. C. C. 270 ; 2 C. 
 L. R. 614; 18 Jur. 159; 23 L. J., 
 M. C. 54 ; 6 Cox, C. C. 269. 
 
 A. was a carrier, residing at Som- 
 erton and going from that place to 
 Stoke and back, employed, howev- 
 er, only between the glove sewers 
 at Somerton and the manufacturers 
 at Stoke, in carrying the gloves 
 from and to the one and the other. 
 The manufacturers Icnew nothing of 
 the sewers, but A. gave the name 
 of and took out a number for any 
 woman desiring to be employed, re- 
 ceived unsewn gloves from the man- 
 ufacturers, and conveyed them to 
 
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THE OFFENCE. 
 
 121 
 
 the women at Somerton, taking 
 back the gloves when finished, and 
 receiving the amount due to the 
 women for their work. The man- 
 ufacturers looked to the women for 
 the work ; but if any were missing, 
 and the women not found, they 
 held the prisoner accountable for 
 it. In accordance with this course 
 of proceeding, A. received sewn 
 gloves from two of the women, de- 
 livered them to the manufacturers, 
 and received the amount dtfe for 
 the work, but fraudulently applied 
 the money so received to his own 
 use. He was tried for and con- 
 victed of, embezzling the money of 
 the two women : — Held, that the 
 relation of master and servant did 
 not subsist, but A. was a mere 
 trustee, and was only guilty of a 
 breach of trust, and not of embez- 
 zlement, and therefore the convic- 
 tion was wrong. Reg. v. Gibbs, 
 Dears. C. 0. 445 ; 1 Jur., N. S. 
 118 ; 24 L. J., M. C. 62 ; 6 Cox, C. 
 C. 455. 
 
 An instrument in the following 
 form is a contract for service by a 
 labourer, and not a contract of part- 
 nership : — " S. W. engages to take 
 charge of the glebe land of the 
 Rev. A. B., his wife undertaking 
 the dairy and poultry, at 15s. a 
 ^ week, till Michaelmas, 1850, and 
 afterwards at a salary of 25^. a 
 year, and a third of the clear an- 
 nual profits, after all the expenses 
 of rent, rate, labour and interest on 
 capital, &c., are paid, on a fair val- 
 uation, made from Michaelmas to 
 Michaelmas. Three months' notice 
 on either side to be given, at the ex- 
 piration of which the cottage to be 
 vacated by S. W., who occupies it 
 as bailiif, in addition to his salary. 
 —March 12th, 1850.— (Signed) A. 
 B., S. W." — The prisoner was di- 
 rected to account, and was in the 
 habit of accounting, with the wife 
 of the prosecutor. On the 4th Oc- 
 tober, the prisoner, in accounting 
 with her, denied the receipt of two 
 
 sums of money which he had re- 
 ceived for and on account of his 
 master, and appropriated them to 
 his own use : — Held, that he was 
 properly convicted of embezzle- 
 ment, although Michaelmas was 
 the time agreed upon when a valu- 
 ation was to take place, and the 
 profits were to be ascertained, lleg. 
 V. Wortley, T. & M. 636 ; 2 Den. 
 C. C- 333 ; 5 Cox, C. C. 382 ; 15 
 Jur. 1137; 21 L. J., M. C. 44. 
 
 The prisoner was convicted of 
 embezzlement. It was his duty to 
 receive remittances from the cus- 
 tomers of his masters, to enter them 
 to the credit of such customers in a 
 day or cash-book, and to enter the 
 whole amount received by him on 
 the credit side of a banker's deposit 
 account, and to pay in the amount 
 to the credit of the prosecutors with 
 their bankers ; and it was his duty 
 afterwards to post the amounts in 
 a ledger, which contained the ac- 
 counts of the difierent customers. 
 The prisoner received a remittance, 
 which he appropriated to his own 
 use ; he made an entry of this 
 amount in the ledger to the credit 
 of the customer, but he made no 
 entry of its receipt : — Held, that 
 the conviction was right, as the 
 entry made ia the ledger did not 
 exempt the prisoner from the opera- 
 tion of the 47th section of the 7 & 
 8 Geo. 4, c. 29. Reg. v. Lister, 
 Dears. & B. C. C. 118 ; 2 Jur., N. 
 S. 1124 ; 26 L. J., M. C. 26. 
 
 A. was indicted for embezzling 
 H.'s goods, and for larceny of H.'s 
 goods ; B. for receiving goods, the 
 property of H., knowing them to 
 have been stolen. A. was found 
 guilty of embezzhng only, and B. 
 for feloniously receiving : — Held, 
 that the conviction of B. was right, 
 for 7 & 8 Geo. 4, c. 29, s. 47, en- 
 acts, that every person who has em- 
 bezzled within the meaning of that 
 section "shall be deemed to have 
 feloniously stolen from his master," 
 and that being so, B.'s ofience was 
 
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122 
 
 EMBEZZLEMENT BY CLERKS, ETC. 
 
 properly described in the count for 
 receiving. Bey. v. Frampton, 8 
 Cox, C. C. 16 ; 4 Jur., K S. 566. 
 
 By Clerics and Servants.'\ — A. 
 gave his clerk 51., out of which he 
 was to pay for an advertisement; 
 he paid \l. but told A. he had paid 
 2?. Os., 6c?., and accounted with A. 
 accordingly : — Held, no embezzle- 
 ment. jRex v. Murray, 5 C: & P. 
 145, n.; 1 M. C. C. 276. 
 
 A clerk who received six bank 
 notes on his master's account, in 
 payment of a particular debt, made 
 a false entry in his master's book, 
 with a fraudulent intent to conceal 
 the payment of that sum, but after- 
 wards paid to the master the identi- 
 cal notes which he had received, 
 applying them, in his account, to 
 another debt received by him for 
 his master : — Held, that he was 
 guilty of embezzlement, in respect 
 of these six notes. Hex v. Jlcdl, 3 
 Stark. 67— Bayley. 
 
 It is felony for the confidential 
 clerk of a merchant to take a bill 
 of exchange, unindorsed, from the 
 bill box, and convert it to his own 
 use, although he was in the habit of 
 transacting the cash concerns of the 
 house from week to week ; for, as 
 it had not been delivered to him for 
 such purpose by his employer, it is 
 a tortious taking from the posses- 
 sion of the master. Hex v. Chip- 
 chase, 2 Leach, C. C. 699 ; 2 East, 
 P. C. 567. 
 
 It was the duty of a clerk to re- 
 ceive monies daily at N., to enter 
 all such monies so received in a 
 book, and to rernit the amount 
 weekly to L. His entries were all 
 correct, and admitted the receipt of 
 all the monies ; but he did not re- 
 mit them to L., as was his duty : — 
 Held, no embezzlement. Hex v. 
 Hodgson, 3 C. & P. 422— Vaughan. 
 
 A person employed upon com- 
 mission to travel for orders and col- 
 lect debts, was clerk within 39 Geo. 
 3, o. 85, and might have been in- 
 dicted for embezzlement, although 
 
 he was employed by many different 
 houses on each journey, and paid 
 his own expenses out of his com- 
 mission on each journey, and did 
 not live with any of his employers, 
 nor act in any of their counting- 
 houses. Rex V. Garr, R. & R. C. 
 C. 198. 
 
 A banker's clerk taking money 
 from the 1;ill, intending to embezzle 
 it, is guilty of felony, although the 
 cheque of a customer is left in lieu 
 of it; if that customer has really 
 no cash in the banker's hands, 
 though both he and the banker 
 may suppose he has, and if the 
 cheque is drawn by the customer, 
 not to pledge his own credit with 
 the bank, or draw out money of his 
 own, but to draw out money the 
 prisoner falsely pretends to have in 
 his name. Rex, v. Hammon, R. & 
 R. C. C. 221 ; 2 Leach, C. C. 1083 ; 
 4 Taunt. 304. 
 
 A person received 71. 2s. Qd. in 
 his capacity of clerk to overseers 
 of a parish, and made an entry in 
 a book of the receipt of that sum 
 accordingly, and placed the money 
 with other sums in his possession ; 
 the entry of 71. 2s. &d. was after- 
 wards erased, and 51. 6s. lQ\d. sub- 
 stituted for it, and the prisoner only 
 accounted to the parish officers for 
 51. 6s. la^d. On an indictment for 
 embezzling 11. 15s. 7d., and convic- 
 tion thereon : — Held, that as the 
 prisoner might have paid over the 
 whole of what he received for the 71. 
 12s. 6<?., and have taken the 11. 15s. 
 7d. from other monies he received, 
 he was improperly convicted. Rex 
 V. Tyers, R. & R. C. C. 402. 
 
 If a clerk receives money from 
 his master to pay away on his 
 master's account, and he states in 
 his accounts that one of the pay- 
 ments was to a greater amount than 
 it really was, this will be no em- 
 bezzlement. Rex V. Murray, 5 C. 
 & P. 145 ; 1 M. C. C. 276. 
 
 A person whose duty it is to ob- 
 tain orders when and where he 
 Ukes, and to forward, them to his 
 
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THE OFFENCE. 
 
 123 
 
 principal for execution, and then 
 has three months within which to 
 collect the money for the goods 
 sent, is not a clerk or a servant. 
 Eeff. V. Mayle, 11 Cox, C. C. 150 
 — Russell Gurney. 
 
 If such a person, at the request 
 of his principal, collects a sum of 
 money from a customer, with the 
 obtaining of whose order he has 
 nothing to do, he is a mere volun- 
 teer, and is not liable to be prose- 
 cuted for embezzlement if he does 
 not pay over or account for the 
 money so received. Jb. 
 
 The prisoner was engaged by TJ. 
 at weekly wages to manage a shop. 
 U. assigned all his estate and effects 
 to R., and a notice was served on 
 the prisoner to act as the agent of 
 R. in the management of the shop. 
 For fourteen days afterwards R. 
 received from TJ. the shop monies. 
 Then the shop money was taken by 
 U. as before. The prisoner received 
 his weekly wages from XJ. during 
 the whole time. Some time after a 
 composition deed was executed by 
 R. and U., and TJ.'s creditors, by 
 which R. reconveyed the estate and 
 effects to U.; but this deed was not 
 registered until after the embezzle- 
 ment charged against the prisoner : 
 — Held, that he was the servant of 
 U. at the time of the embezzlement. 
 Beff. V. Dixon, 19 L. T., N. S. 384 ; 
 17 W. R. 189 ; 11 Cox, C. C. 178 
 — C. C. R. 
 
 -By Servants.] — A servant in the 
 employment of two persons, as part- 
 ners, must be considered as the 
 servant of each. Hex v. Leech, 3 
 Stark. 70— Bayley. 
 
 If a servant receives money on 
 his employers' account, and embez- 
 zles it, he is guilty of a felony, al- 
 though they had no right to it, and 
 were wrong-doers in receiving it. 
 Hex r. Beacall, 1 C. & P. 312, and 
 Rex V. Wettings, ib. 454, 457. 
 
 So, if the party embezzling is em- 
 ployed as the servant of a corpora- 
 tion, although not duly appointed 
 
 their servant, even under their com- 
 mon seal. Ih. 
 
 A., being one of several proprie- 
 tors of a Hereford and Birmingham 
 coach, horsed it from Hereford to 
 Worcester, and employed B. to 
 drive it when he did not himself 
 drive it; B. having all the gratui- 
 ties as well when A. drove as when 
 B. himself did so. It was the duty 
 of B., on each day when he drove, 
 to tell the book-keeper at Malvern 
 how much money he had taken; 
 the book-keeper entering that sum 
 in a book and on the way bill, to- 
 gether with what he had taken 
 himself; and he then had to pay 
 over the latter to B., who was to 
 give the two sums to A. B. gave 
 true accounts to the book-keeper, 
 who made true entries ; but B. ac- 
 counted for smaller sums to A., 
 saying that those were all, and paid 
 over to A. these smaller sums. All 
 the proprietors were interested . in 
 the money ; but A. was the person 
 to receive it, and he was accounta- 
 ble to his co-proprietors: — Held, 
 that this was embezzlement; and 
 that B. was rightly described in the 
 indictment as the servant of A., 
 and that the money embezzled was 
 properly laid as the money of A. 
 Beg. V. WhUe, 8 C. & P. 742— 
 Patteson. 
 
 Where the prosecutor gave his 
 servant a five-pound note to get 
 changed, which he did, and made 
 off with the change: — Held, that 
 it was an embezzlement and not a 
 larceny. Rex v. SuMens, Car. C. L. 
 319; 1 M. C. C. 129. 
 
 If a servant, to whom goods have 
 been delivered by his master to car- 
 ry to a customer, sells them and 
 converts the money to his own use, 
 he is guilty of felony ; for the pos- 
 session is not out of the master by 
 such delivery. Rex v. Rass, 1 
 Leach, C. C. 251 ; 2 East, P. C. 
 566, 698. 
 
 Where the owner of a colliery 
 employed the prisoner, as captain of 
 one of his barges, to carry out and 
 
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124 
 
 EMBEZZLEMENT BY CLERKS, ETC. 
 
 sell coal, and paid him for his labour 
 by allowing him two thirds of the 
 price for which he sold the coals 
 above the price charged at the col- 
 liery : — Held, that the prisoner was 
 a servant within the meaning of 39 
 Geo. 3, c. 85 ; and having embez- 
 zled the price, he was guilty of lar- 
 ceny within the meaning of that 
 act. Rex v. Hartley, R. & R. C. 
 C. 139. 
 
 If a servant secretes money which 
 his master has marked and sent by 
 a friend to make a purchase at his 
 shop, with a view to try the honesty 
 of his servant, it is a felonious 
 breach of trust, and an embezzling, 
 and not a larceny at common law. 
 Rex V. Seadge, 2 Leach, C. C. 
 1033; R. & R. C. C. 160: S. P., 
 Rex V. 'WhiUingliam, 2 Leach, C. 
 C. 912. 
 
 A man was sufficiently a servant 
 within 39 Geo. 3, c. 85, although 
 he was only occasionally employed 
 when he has nothing else to do.' 
 RexY. Spencer, R. & R. C. C. 299 : 
 8. P., Reg. v. Tongue, Bell, C. C. 
 289 ; 30 L. J., M. C. 49. 
 
 Ajid it is sufficient, if he was em- 
 ployed to receive the money he 
 embezzled, although receiving mon- 
 ey may not be in his usual employ- 
 ment, and although it was the only 
 instance in which he was so em- 
 ployed, lb. 
 
 K a servant, immediately on re- 
 ceiving a sum for his master, enters 
 a smaller sum in his master's books, 
 and ultimately accounts to his mas- 
 ter for the smaller sum, he may be 
 considered as embezzling the differ- 
 ence at the time he makes the en- 
 try ; and it will make no difference 
 though he received other sums for 
 his master on the same day, and in 
 paying those and the smaller sum 
 to his master together he might 
 give his master every piece of money 
 or note he received at the time he 
 made the false entry. Rex v. JTail, 
 R. &R. C. C. 463; 2 Stark. 67. 
 
 Upon an indictment for embez- 
 zling 6s. it was proved that the 
 
 prisoner was a drayman in the em- 
 ployment of the prosecutors, who 
 were brewers, and that his duty 
 was to sell porter at a certain fixed 
 price only, viz., 9s. M. per dozen. 
 He sold some at 6s., but did not re- 
 ceive the money for some time. In 
 the interval the customer had in- 
 formed the prosecutors of the trans- 
 action, and they told him to pay 
 the money when the prisoner came 
 for it. The prisoner accordingly 
 received it, and did not account for 
 it : — Held, that the evidence was 
 sufficient to support the indictment. 
 Reg. V. Aston, 2 Cox, C. C. 234— 
 Patteson. 
 
 A. was employed to lead a stal- 
 lion, and he was to charge 30s. a 
 mare, and not take less than 20s. 
 He received the sum of 6s. for the 
 covering of a mare : — Held, no em- 
 bezzlement, as the sum was not re- 
 ceived by virtue of his employment. 
 Rex V. Snowley, 4 C. & P. 390— 
 Littledale and Parke. 
 
 A person employed by A. to sell 
 goods for him at certain wages may 
 be convicted of embezzlement as the 
 servant of A., though at the same 
 time employed by other persons 
 and for other purposes. Reg. v. 
 Batty, 2 M. C. C. 257. 
 
 A servant may be found guilty of 
 embezzlement, though he is not a 
 general servant, and is employed to 
 receive in a single instance only. 
 Rex V. Hughes, 1 M. C. C. 370. 
 
 Who are . Clerics or Servants.'] — 
 One who was employed at a yearly 
 salary under the appellation of ac- 
 countant and treasurer to the over- 
 seers of a township, whose duty it 
 was to receive all monies receivable 
 or payable by them, was a clerk 
 and servant within 39 Geo. 3, c. 85. 
 Rex V. Squire, 2 Stark, 349 ; R. & 
 R. C. C. 349. 
 
 Embezzlement by one who is 
 neither clerk nor servant, nor in 
 any respect under the control of the 
 person by whom he is in a single in- 
 stance only requested to receive 
 
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THE OFFENCE. 
 
 125 
 
 monies, was not punisliable under 
 7 & 8 Geo. 4, c. 29, s. 49, as he did 
 not come within the description of 
 clerk, or servant, or a person em- 
 ployed for the purpose of, or in the 
 capacity of a clerk or a servant. 
 Hex V. Nettleton, 1 M. C. C. 259. 
 
 A person employed to collect the 
 sacrament money from the commu- 
 nicants is not the servant of the min- 
 ister, churchwardens or poor, so as to 
 be within 7 & 8 Geo. 4, c. 29, s. 47, 
 if he embezzles the money. Rex v. 
 Burton, 1 M. C. C. 237. 
 
 The prisoner had worked for the 
 prosecutor, sometimes as a regular 
 labourer and sometimes as a rounds- 
 man ; but at the time in question, 
 he not being at all in the prosecu- 
 tor's service, was sent by the prose- 
 cutor to get a cheque cashed at a 
 banker's, for doing which he was to 
 be paid sixpence. He got the cash, 
 and made off: — Held, no embezzle- 
 ment, as the prisoner was not a ser-- 
 vant of the prosecutor within 7 & 8 
 Geo. 4, c. 29, s. 47. Bex v. Free- 
 man, 5 C. & P. 534— Parke. 
 
 A person hired by a market gar- 
 dener to do a day's work, and who 
 is requested by his employer to take 
 some vegetables to market and sell 
 them, and bring back the produce, 
 is a servant to his employer in re- 
 spect of such employment, within 7 
 & 8 Geo. 4, c. 29, s. 47. Reg. v. 
 Winnall, 5 Cox, C. C. 326— Erie. 
 
 Being employed as above men- 
 tioned, he sold four pots of po- 
 tatoes, and received the money. 
 He sold four other pots, but did 
 not receive the money. On his 
 return to his master, he stated cor- 
 rectly the price he sold the potatoes 
 for, but said that he would settle 
 "ft-ith him on a subsequent day, as 
 he had not received the money, and 
 did not offer the sum received, or 
 say he had been paid for a part, and 
 subsequently made the same excuse, 
 and never paid any part of the mon- 
 ey : — Held, that this was not em- 
 bezzlement, unless he, when he said 
 he had not received the money, 
 
 Digitized by Microsoft® 
 
 meant that he had not received any 
 part of it. lb. 
 
 A. was a cashier and collector to 
 commission agents. He was paid 
 partly by salary, and partly by per- 
 centage on the profits, but was not 
 to contribute to the losses, and had 
 no control over the management of 
 the.business : — Held, that he was a 
 servant within the 7 & 8 Geo. 4, c. 
 29, s. 47, not a partner. Reg. v. 
 M'Donald, L. & C. 85 ; 9 Cox, 0. 
 C. 10 ; 31 L. J., M. C. 67 ; 7 Jur., 
 K S. 1127 ; 10 W. R. 21 ; 5 L. T., 
 N. S. 330. 
 
 B., being in diflSculties, assigned 
 all his book debts, estate and effects 
 to trustees for the benefit of credit- 
 ors. He was employed by the 
 trustees at a salary to manage the 
 business and to collect the debts for 
 them. He received the amount of 
 two of the debts, and did not ac- 
 count for it : — Held, first, that he 
 was not a clerk or servant within 
 the meaning of the act. Reg. v. 
 Barnes, 8 Cox, C. C. 129— Byles. 
 
 Held, secondly, that, inasmuch as 
 the debts, being choses in action, 
 could not be legally assigned, he 
 had received only money which 
 was in law, though not in equity, 
 his own ; and, therefore, that he 
 could not be guilty of embezzling 
 it. Ih. 
 
 A bailiff of a county court who 
 has fraudulently appropriated the 
 proceeds of levies made under the 
 process of the county court, cannot 
 for this misconduct be convicted as 
 a servant of the high bailiff with 
 having embezzled the monies of the 
 high bailiff his master. Reg. y. Glo- 
 ver, L. & C. 466 ; 9 Cox, C. C. 600 ; 
 10 Jur., N. S. 710 ; 33 L. J., M. C. 
 169 ; 12 W. R. 885 ; 10 L. T., N. S. 
 682. 
 
 A person who is employed to get 
 orders for goods, and to receive 
 payment for them, but who is at 
 liberty to get the orders and receive 
 the money where and when he 
 thinks proper, being paid by a com- 
 mission on the goods sold, is not 
 
126 
 
 EMBEZZLEMENT BY CLERKS, ETC. 
 
 a clerk or servant within 24 & 25 
 Vict. c. 96, s. 68. -Reff. v. Bowers 
 or Bower, 1 L. R. C. C. 41 ; 12 Jur., 
 N. S. 550 ; 35 L. J., M. C. 206 ; 14 
 W. R. 803 ; 14 L. T., N. S. 671. 
 
 The prosecutor was agent to a rail- 
 way company for delivering goods. 
 He employed his own servants, of 
 whom the prisoner was one, hi^wn 
 drays and horses, and was answer- 
 able to the company for the money 
 received by his servants for the car- 
 riage of goods. It was the prison- 
 er's duty to go out with a dray, to 
 take with him goods, and a deliv- 
 ery-book handed to him by a clerk 
 of the company, to deliver the goods 
 and receive the amount of carriage, 
 and to account for monies received 
 to the clerk of the company. The 
 prisoner embezzled certain sums 
 which he had received as due to 
 the company, and for which he had 
 given receipts in the company's 
 name : — Held, that, although thei 
 money was received in the name of 
 the company, it was received on the 
 account of the prosecutor, his mas- 
 ter, and that a conviction for em- 
 bezzlement was right. Beg/, v. 
 Thorpe, Dears. & B. C. C. 562 ; 4 
 Jur., N. S. 466 ; 27 L. J., M. C. 
 264; 8Cox, C. C. 29. 
 
 The prisoner kept a refreshment 
 house at B., and whilst doing so 
 was engaged by the prosecutors, 
 manure manufacturers, to get or- 
 ders, which they supplied from 
 their stores. He was to collect the 
 money and send it at once to them, 
 and also to furnish weekly accounts. 
 He was paid by commission, and 
 it did not appear that he had under- 
 taken to give any definite time or 
 labour to the business, but he was 
 to act in a particular district, and 
 was called agent for the B. district. 
 He was to go through the country, 
 see the fanners and get orders, and 
 during the season was to be con- 
 tinually among the farmers. Sub- 
 sequently the prosecutors rented 
 stores at B., which were placed un- 
 der the prisoner's control, and from 
 
 them he supplied orders he obtained. 
 The first mode, however, or the 
 mixed mode, might have been re- 
 sorted to, according to the conven- 
 ience of the prosecutors. After 
 some time a proposal was made to 
 a guarantie society to insure the 
 prosecutors in respect to their con- 
 nexion with the prisoner. This pro- 
 posal was signed by the prisoner. 
 It was a printed form, issued by 
 the society, and contained a notice 
 that some salary must be payable, 
 or the society would not insure. It 
 stated that the prisoner's salary was 
 11. a, year besides commission, esti- 
 mated at 65^. a year. At this time 
 the prosequtors had agreed to give 
 the salary of 1?. a year. The prisoner 
 was allowed to get in arrear, and 
 was treated by the prosecutors as a 
 debtor in respect of the arrears. Hav- 
 ing, however, received money from 
 certain customers, he fraudulently 
 returned their names as not having 
 paid, and for this he was tried and 
 convicted of embezzlement : — Held, 
 that the conviction could not be 
 sustained, as it was not established 
 by the evidence that the prisoner 
 was the servant of the prosecutors. 
 Beg. V. Walker, Dears. & B. C. C. 
 600 ; 27 L. J., M. C. 207 ; 8 Cox, C. 
 C. 1. 
 
 A. was employed at a railway 
 station belonging to four diiferent 
 companies, and which was main- 
 tained out of a joint fund. The 
 servants at this station were ap- 
 pointed and paid, and might be dis- 
 missed, by a committee of directors 
 of the several companies. A.'s du- 
 ty was to deliver parcels which ar- 
 rived at the station by the trains of 
 the different companies, and to pay 
 over the money received for them 
 to the chief clerk of the parcels of- 
 fice. The chief clerk then paid over 
 such money to the cashier of the com- 
 mittee, who kept a separate accotmt 
 for each company, and paid the mon- 
 ey over directly to the company to 
 which it belonged, or its bankers. 
 A. having embezzled money receiv- 
 
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THE OFFENCE. 
 
 127 
 
 ed by him in the course of his duty, 
 he was charged in different counts of 
 an indictment as being the servant 
 of the particular company whose 
 money he had embezzled, of the 
 four companies, of the committee, 
 and of the station master : — Held, 
 that, at all events, he was properly 
 charged as being the servant of the 
 four companies. Reg. v. Bayley, 2 
 Jur., K S. 1171 ; 26 L. J.,M. C. 4; 
 7 Cox, C. C. 179 ; Dears. & B. C. C. 
 121. 
 
 B., in an answer to an application, 
 was informed by letter from the 
 prosecutors, " We are not disposed 
 to appoint any agent at N., but for 
 all business you do for us we shall 
 be happy to pay you a commission." 
 He afterwards obtained some orders, 
 and misappropriated some monies 
 received by him. The jury found 
 that it was his duty to account to 
 the prosecutors for any money he 
 might receive for them immediately 
 qn receipt of it : — ^Held, that B. was 
 not a clerk or a servant, and could 
 not be convicted of embezzlement. 
 Seff. V. May, L. & C. 13 ; 8 Cox, C. 
 C. 421 ; 7 Jur., N. S. 147 ; 30 L. J., 
 M. C. 81 ; 3 L. T., N. S. 680. 
 
 A. was indicted for embezzlement. 
 He was engaged by the prosecutor 
 as a commercial traveller, to be 
 paid by commission, and he was at 
 liberty to obtain orders for other 
 persons : — Held, that there was ev- 
 idence of his being a servant to the 
 prosecutor. Regi. v. Tite, L. & C. 
 29 ; 8 Cox, C. C. 458 ; 7 Jur., N. S. 
 556 ; 30 L. J., M. C. 142 ; 9 W. E. 
 554; 4L. T., N. S. 259. 
 
 A btitty collier, who received a 
 certain sum for every ton of coal he 
 raised, was also allowed to sell coal 
 for his employer, the owner of the 
 colliery. It was his duty to pay 
 over the gross money received on 
 such sales, and he was subsequently 
 allowed a poundage thereon. Hav- 
 ing converted money received for 
 coal to his own use, he neglected 
 to account for it: — ^Held, that al- 
 though the sale of the coal was not 
 
 compulsory, he was servant to the 
 owner of the colliery; so as to sup- 
 port an indictment for embezzle- 
 ment. Reff. V. Thomas, 6 Cox, C. 
 C. 403— Crompton. 
 
 Indictment charged a person, who 
 was a solicitor, with embezzlement. 
 It appeared from his appointment 
 as entered in the minute book of the 
 company, that he was a land agent 
 to the company, and that in the 
 course of his duties he collected the 
 rents of houses, refreshment-stalls, 
 book-stalls, &c., and should have 
 paid the sums over to the company, 
 and that he managed the parochial 
 assessments, as to the justness of 
 claim. His salary was 3001. a year, 
 and an extra sum was allowed for 
 travelling expenses : — Held, that he 
 was a clerk or a servant. Reg. v. 
 Gibson, 8 Cox, C. C. 436 — Cham- 
 bers, C. S. 
 
 A., who had been a farm servant 
 of B., but who had ceased to be so, 
 was employed by B. to collect his 
 debts, it being B.'s intention to go 
 to America, and to take A with him 
 and set him up there in business for 
 himself. There was no agreement 
 for any remuneration to be paid by 
 
 B. to A. for collecting the debts : — 
 Held, that A. could not be convicted 
 of embezzling the sums received by 
 him on behalf of B. Reg. v. Hoare, 
 1 F. & F. 647— Wightman. 
 
 Receipt hy Virtue of Umployment.J 
 — Embezzlement of money by a 
 servant not authorized to receive it, 
 was not within 7 & 8 Geo. 4, c. 29, 
 s. 47. Rex V. Thorky, 1 M. C. C. 
 343. 
 
 If a servant generally employed 
 by his master to receive sumsof one 
 description, and at one place only, 
 is employed by him in a particular 
 instance to receive a sum of a dif- 
 ferent description and at a different 
 place, this latter sum was to be con- 
 sidered as received by him by virtue 
 of his employment, within 39 Geo. 
 3, c. 85. Rex v. Smith, R. & U. C. 
 
 C. 516. 
 
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128 
 
 EMBEZZLEMENT BY CLERKS, ETC. 
 
 A clerk, intrusted to receive mon- 
 ey at home from out-door collectors, 
 received it abroad from out-door 
 customers : — Held, that such a re- 
 ceipt of money might be considered, 
 by virtue of his employment, with- 
 in 39 Geo. 3, c. 85, although it was 
 beyond the limits to which he was 
 authorized to receive money for his 
 employers. Bex v. Beechey, R. & R. 
 C. C. 319. 
 
 A. was convicted on an indict- 
 ment charging him with embezzle- 
 ment. He was storekeeper and 
 clerk at a county gaol, and it was 
 no part of his duty (which was de- 
 fined by written instructions) to re- 
 ceive money, but he had from time 
 to time received monies in the ab- 
 sence of the governor of the gaol, 
 and to the knowledge of some of 
 the justices. It was submitted that 
 he had not received the money by 
 virtue of his employment, and that 
 that question ought to be left to the 
 jury ; but the recorder directed the 
 jury that if they believed that A. 
 received the money, he did receive 
 it by virtue of his employment : — 
 Held, that the question whether he 
 received the money by virtue of his 
 employment ought to have been 
 left to the jury, and that the con- 
 viction was wrong. Beg. v. Arman, 
 Dears. C. C. 575; 1 Jur., N. S. 
 1116,1177; 7Cox, C. C. 45. 
 
 The prisoner was indicted for em- 
 bezzling monies received by him by 
 virtue of his employment as clerk 
 to North and others, .his masters. 
 It is for the jury to say if the rela- 
 tion of master and clerk existed be- 
 tween the prosecutor and prisoner. 
 Meg. V. Ohater, 9 Cox, C. C. 1. 
 
 shares were transferrable without the 
 consent of the other shareholders ; 
 and a minute-book, in which resolu- 
 tions were entered, was kept. No 
 certificate of incorporation was put 
 in evidence : — Held, ■ that he was 
 rightly convicted as the servant of 
 
 B. and others, there being no evi- 
 dence which ought to have been 
 left to the jury that the company 
 was incorporated. Meg. v. Frank, 
 land, L. & C. 276 ; 9 Cox, C. C. 
 273 9 Jur., N. S. 388 ; 32 L. J., M. 
 
 C. 69 ; 11 W. R. 346 ; 7 L. T., K 
 S. 799. 
 
 A clerk of a banking company, 
 established under 7 Geo. 4, c. 46, 
 may be convicted of embezzling the 
 money of the company, although 
 he is a shareholder or partner in 
 such company. Meg. v. Atkinson, 
 Car. & M. 525 ; 2 M. C. C. 278. 
 
 By Olerks of Joint Stock Com- 
 panies.'] — A. was indicted for em- 
 bezzlement whilst clerk to B. and 
 others. A. was secretary and cash- 
 ier to a company calling themselves 
 " The R., M. and H. Coal Company 
 (Limited) "; the number of mem- 
 bers exceeded twenty ; the name of 
 the company was over the door ; the 
 
 By Collectors of Mates.] — A. was 
 employed by the overseers of a par- 
 ish to collect poor-rates on their ac- 
 count. , As their agent he demanded 
 the amount of a rate from the land- 
 lord of a house who usually paid his 
 tenant's poor-rates ; he entered the 
 amount in his book as uncollected 
 and as legally excused, and embez- 
 zled the sum : — Held, that although 
 the overseers might not have been 
 able to enforce the payment of the 
 sum so embezzled, he received it in 
 virtue of his employment, and on 
 account of his employers, and that 
 it was not necessary to lay the 
 money as the joint property of the 
 churchwardens and overseers. Beg. 
 V. Adey, 4 New Sess. Cas. 360 ; 1 
 Den. C. C. 571 ; T. & M. 296; 3 C. 
 &K. 339; 14 Jur. 556; 19 L. J., 
 M. C. 149; 4 Cox, C. C. 208. 
 
 A collector of poor's-rates, em- 
 ployed by the overseers, is properly 
 charged with embezzlement, as ser- 
 vant to the overseers, although 
 there are churchwardens for the 
 same parish, who took part in mak- 
 ing the rate. lb. 
 
 In such case it is sufficient to de- 
 scribe the money received by the 
 
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THE OFFENCE. 
 
 129 
 
 collector for the rate as the proper- 
 ty of the overseers only, naming 
 thjem. lb. 
 
 A collector of poor's-rates, as a 
 servant to the overseers, has author- 
 ity to receive the rates from the 
 landlord, if he will pay them to 
 him. lb. 
 
 Under an order of the Poor Law 
 Commissioners, in pursuance of 4 & 
 5 Will. 4, c. 76, s. 46, the board of 
 guardians of a union appointed A. 
 to the office of collector of rates for 
 the S. district, which district formed 
 a part of the union. In the order of 
 the Poor Law Commissioners, the 
 duties of the collector, and the com- 
 pensation he was to receive, were 
 fully set forth, and upon the receipt 
 of the order the guardians appointed 
 him verbally, which appointment 
 was afterwards submitted for ap- 
 proval to the Poor Law Commis- 
 sioners, and ratified by them. The 
 power of dismissal rested with the 
 Poor Law Commissioners alone. 
 The collector, on his appointment, 
 gave a bond for the proper perfor- 
 mance of his duties to the guardians, 
 and to them he was bound to give 
 in a statement of his accounts week- 
 ly. There were separate rates for 
 each parish or district of the union, 
 and the duty of the collector was to 
 collect the rates of the S. district, 
 and pay in the amount to a banker, 
 to the credit of the overseers of that 
 district, they alone having the right 
 of disposing of it. Out of this sum 
 the overseers paid the collector a 
 per centage for his services : — Held, 
 that an indictment for embezzle- 
 ment was not sustainable, there 
 being no such service to any one as 
 the 7 & 8 Geo. 4, c. 29, s. 47, re- 
 quired, the collector beiag, under 
 the circumstances, an independent 
 officer. Heg. v. Truman, 2 Cox, C. 
 C. 306. 
 
 Under an order of the Poor Law 
 
 Commissioners, founded on 4 & 5 
 
 Will. 4, c. 76, s. 46, the board of 
 
 guardians of a union appointed A. 
 
 an assistant overseer of a district 
 
 Fish. Dig. — 9. 
 
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 in the union, of which the township 
 of P. formed a part, and his duty 
 was to assist the overseers of each 
 of the townships of the district. A. 
 was paid a salary by the guardians. 
 A. received sums for poor-rate from 
 ratepayers of the township of P., 
 which he ought to have paid over 
 to the bankers of the overseers of 
 that township, instead of which he 
 embezzled them: — Held, that A. 
 was not indictable for embezzling 
 this money as the money of the 
 overseers, as he was not their serv- 
 ant ; and that he was not indictable 
 for this embezzlement as the servant 
 of the guardians, because, if he was 
 their servant, it was not their mon- 
 ey. Reg. V. Townsend, 2 C. & K. 
 168. 1 Den. C. C. 167; 2 Cox, C. 
 C. 24. 
 
 The treasurer to the guardians of 
 the poor of Birmingham, appointed 
 under a local and personal act, is a 
 servant of the guardians, and as 
 such is indictable for embezzlement. 
 Beg. V. Welch, 2 C. & K. 296 ; 1 
 Den. C. C. 199 ; 2 Cox, C. C. 85. 
 
 The not accounting for a, portion 
 of money received for the guardians 
 was an embezzlement, although no 
 precise time could be fixed at which 
 it was the prisoner's duty to pay 
 over the money alleged to be em- 
 bezzled. Tb. 
 
 G. was convicted upon an indict- 
 ment for embezzlement. It was his 
 duty, as the assistant overseer of a 
 township, to collect the rates ; and 
 the course was, upon receipt, to pay 
 them into a bank to the account of 
 the overseers' receipts for the sums 
 so paid. It was his duty also to 
 enter the rates when received in a 
 book, and at the audit he charged 
 himself by the entries in his book 
 and discharged himself by the re- 
 ceipts of the overseers. Having 
 misappropriated certain monies, 
 which he duly entered in the book 
 when received, he fraudulently ob- 
 tained from the overseers receipts 
 for the several sums stated in the 
 indictment, by falsely telling them 
 
130 
 
 E]MBEZZLEMENT BY CLERKS, ETC. 
 
 that he had paid the money into the 
 bank. These receipts he produced 
 to the auditor, and so deceived him 
 as to his having handed over the 
 monies : — Held, that he was rightly 
 convicted, and that the fact of his 
 entering the sums, when received, 
 ia his book, did not alter the char- 
 acter of his offence. Reg. v. Guel- 
 der, Bell, C. C. 284 ; 8 Cox, C. C. 
 372; 30 L. J., M. C. 34; 6 Jur., K 
 S. 1214; 3L. T., N. S. 337. 
 
 An assistant overseer of a parish, 
 elected by the parishioners in vestry, 
 imder 59 Geo. 3, c. 12, s. 7, who fix 
 his duties and salary, is to be deemed 
 the servant of the iniabitants of the 
 parish, and to receive money col- 
 lected by him for the poor rate lev- 
 ied upon the parish as such servant, 
 ,and may be so described in an in- 
 dictment for embezzling such monies 
 so received. Heg. v. Carpenter, 1 
 L. R., C. C. 29; 12 Jur., N. S. 380; 
 35 L. J., M. C. 169 ; 14 W. R. 773 ; 
 14 L. T., K S, 572. 
 
 By Officers or Members of Bene- 
 jU Ulvhs and Friendly Societies^ — 
 By 31 & 32 Vict. c. 116, s. 1, "if 
 " any person, being a member of 
 " any co-partnership, or being one of 
 " two or more beneficial owners of 
 " any money, goods or effects, biUs, 
 " notes, securities, or other property, 
 " shall steal or embezzle any such 
 "money, goods or efiTecrts, bills, 
 " notes, securities or other property 
 "of or belonging to any such co- 
 " partnership or to such joint bene- 
 "ficial owners, every such person 
 " shall be liable to be dealt with, 
 " tried, convicted and punished for 
 " the same as if such person had not 
 " been or was not a member of such 
 " co-partnership or one of such ben- 
 " eficial owners." 
 
 By Officers or Members of Savings 
 Banks, Benefit Clubs, and Friend- 
 ly Societies.'\ — In an indictment 
 against the clerk of a savings bank 
 for embezzlement, he is properly de- 
 scribed as clerk to the trustees, 
 
 though elected by the managers. 
 Rex V. Jenson, 1 M. C. C. 434. 
 
 A member of and secretary to a 
 society, fraudulently withholding 
 money received from a member to 
 be paid over to the trustees, may 
 be indicted for embezzlement, and 
 may be stated to be the clerk and 
 servant of the trustees ; and the 
 money may be properly stated to be 
 their property, though the society is 
 not enrolled, and though the money 
 ought in the ordinary course to 
 have been received by a steward. 
 Rex V. HaR, 1 M. C. C. 474. 
 
 Wiere, by the rules of certain 
 unenroUed friendly societies, the 
 members of one lodge were at lib- 
 erty to pay their contributions to 
 another lodge, if more convenient 
 for them so to do ; — Held, that in 
 an indictment against the secretary 
 of a lodge for embezzling monies 
 received from a member of another 
 lodge, the monies may be laid as 
 the property of, and the prisoner 
 may be alleged to be clerk and 
 servant to, the trustees of his lodge, 
 to whose account all monies receiv- 
 ed by him ought to be paid, al- 
 though the trustees, in their turn, 
 would, in this instance, have to ac- 
 coimt to the other lodge for the 
 particular smn received on its be- 
 half The secretary of an unenroUed 
 friendly society, who is paid a yearly 
 salary out of its funds, is properly 
 described in the indictment as clerk 
 and servant to the trustees, and it 
 would be incorrect to designate him 
 as employed in the capacity of clerk 
 and servant. The latter description 
 only applies where the prisoner is 
 employed on temporary occasions, 
 and does not usually fiU the situa- 
 tion of clerk or servant. Reg, v. 
 WooOey, 4 Cox, C. C. 255— Pat- 
 teson. 
 
 A member of two unenroUed ben- 
 efit clubs, paid as secretary, and in- 
 trusted with the funds to deposit in 
 the bank in the joint names of him- 
 self and the treasurer, dishonestly 
 appropriating to himself the sums 
 
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THE OFFENCE. 
 
 131 
 
 intrusted to Mm, cannot be found 
 guilty of larceny as a servant, or of 
 embezzlement, or of larceny as a 
 bailee. Reg. v. Marsh, 3 F. & F. 
 523— Keating. 
 
 A. was secretary to a benefit 
 building society. It was no part of 
 his duty, as prescribed by the i-ules, 
 to receive money for the society ; 
 but, according to the course of bus- 
 iness, the subscriptions were fre- 
 quently received by him, and when 
 mortgages were redeemed the mon- 
 ey was paid to him as secretary, 
 but for and upon receipts signed by 
 the trustees. Having embezzled 
 the redemption money upon a mort- 
 gage so paid to him, he was indict- 
 ed under 7 & 8 Geo. 4, c. 29, s. 47 : 
 — ^Held, that there was evidence for 
 the jury that he was employed by 
 the trustees as their servant to re- 
 ceive money on their behalf. Reg. 
 V. Hastie, 9 Cox, C. C. 264 ; L. & 
 C. 269 ; 9 Jur., N. S. 235 ; 32 L. J., 
 M. C. 63; 11 W. R. 293 ; 7 L. T., 
 N. S. 695. 
 
 Two friendly societies appointed 
 a committee, of which the defend- 
 ant was a member, to conduct an 
 excursion ; the committee employed 
 him and several others to sell tick- 
 ets. It was his duty to pay over 
 the money so received, which was 
 to belong to the two societies, to a 
 person appointed by the committee, 
 but he received no remuneration for 
 his services : — Held, that he was a 
 joint owner of the money, and not 
 a clerk or servant within 24 & 25 
 Vict. c. 96, s. 68, liable to be in- 
 dicted for embezzlement. Reg. v. 
 Bren, L. & C. 346; 9 Cox, C. C. 
 398; 33 L. J., M. C. 59; 12 W. R. 
 107; 9 L. T., N. S. 452. 
 
 The secretary of an unenroUed 
 friendly society, whose duty it is to 
 receive the weekly contributions of 
 the members, to enter them in a 
 book, and hand over the amount to 
 the treasurer, who in his turn pays 
 it into a bank in the names of the 
 trustees of the society, may be prop- 
 
 erly described as the servant of the 
 trustees in an indictment charging 
 him with embezzling sums so re- 
 ceived, and he cannot be described 
 as the servant of the treasurer. 
 Reg. V. WooUey, 4 Cox, C. C. 251— 
 Piatt. 
 
 A. who was convicted of embez- 
 zlement, was secretary of a money 
 club. His duties were cognate to 
 that of receiving money, althouglw 
 the receipt of money was not ex- 
 pressly named as one of them in 
 the rules, which were in writing. 
 He was directed by the club to sue 
 upon a joint promissory note, their 
 property, or get better security, and 
 the note was handed to him by the 
 treasurer, not a member of the club, 
 who desired that his name should 
 not be used in legal proceedings. 
 The note was payable to the treas- 
 urer's order, and A. endorsed the 
 treasurer's name on the note, and 
 employed an attorney, who issued a 
 writ at the suit of A. In conse- 
 quence of the action money was 
 paid to him by one of the- makers of 
 the note, the receipt of which he 
 denied, and fraudulently withheld 
 the money from the club, and ap- 
 propriated it: — Held, that he was 
 rightly convicted. Reg. v. Tongue, 
 Bell, C. C. 289; 8 Cox, C. C. 386; 
 30 L. J., M. C. 49 ; 9 W. R. 59 ; 3 
 L. T., N. S. 415. 
 
 A member of and secretary to a 
 benefit society, deriving a percent- 
 age from the funds of the society, 
 received in the course of his duty 
 certain money from the mem- 
 bers of the society, which it was 
 his duty to pay mto an account 
 in the savings bank kept in the 
 names of certain other members 
 of the society. Instead of paying 
 the money into the bank he ap- 
 propriated it : — Held, that he could 
 not be convicted of embezzling the 
 money upon an indictment charging 
 him to be the servant of " A. B. 
 and others," and laying the money 
 to be that of " A. B. and others," 
 
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132 
 
 EMBEZZLEMENT BY CLERKS, ETC. 
 
 A. B. being an ordinary member of 
 the society. Beg. v. Taffs, 4 Cox, 
 C. C. 169— Maule. 
 
 But where the secretary of a 
 friendly society, of which A. B. and 
 others were the trustees, was charg- 
 ed with the embezzlement of money 
 belonging to the society ; and in the 
 indictment the property was laid 
 as "of A. B. and others," without 
 alleging that they were the trustees 
 of the society : — ^Held, that the in- 
 dictment might be amended by the 
 addition of the words " trustees of 
 &c." Eeg. V. Marks, 10 Cox, C. 
 C. 367— Chambers, C. S. 
 
 A member of a friendly society 
 was employed to receive the weekly 
 payments made by the members. 
 He gave correct receipts to the 
 members, but omitted to enter in 
 the contribution and cash books a 
 large number of the sums so receiv- 
 ed. On being called upon for an 
 explanation, he admitted that he 
 had received the sums so omitted : — 
 Held, that he was guilty of embez- 
 zlement. Reg. V. Proud, L. &. C. 
 97 ; 9 Cox, C. C. 22 ; 31 L. J., M. 
 C. 71 ; 8 Jur., N. S. 142. 
 
 Upon the trial, these books were 
 tendered generally in evidence, and 
 received, although it was objected 
 that the evidence ought to be con- 
 fined to the entries foi-ming the sub- 
 ject of the indictment : — Held, that 
 they were rightly admitted. Ih. 
 
 A secretary of a friendly society 
 under 18 & 19 Vict. c. 63, in which 
 no trustee had ever been appointed, 
 was convicted on an indictment for 
 embezzlement, prior to the coming 
 into operation of the above enact- 
 ment, and the indictment described 
 him as the servant of the treasurer, 
 and also as the servant of C. (a 
 member) and others: — Held, that 
 the conviction was wrong. Reg. v. 
 Biprose, 19 L. T., N. B. 292 ; 17 
 W. R. 180; 11 Cox, C. C. 185 ; S. 
 P., Reg. V. Blackburn, 11 Cox, C. C. 
 157— C. C. R. 
 
 A treasurer of a friendly society 
 
 (duly enrolled and the rules ot 
 which had been certified by the bar- 
 rister appointed in that behalf), 
 whose duty it was to receive the 
 monies paid into the society, and 
 hold them to the order of the secre- 
 tary, counter-signed by the chair- 
 man, or a trustee, and to account 
 whenever called upon, to which of- 
 fice no salary was attached, is not a 
 clerk or a servant Uable to be in- 
 dicted for embezzlement under 24 & 
 25 Vict. c. 96, s. 68. Reg. v. Tyrie, 
 38 L. J., M. C. 58 ; 17 W. R. 334; 
 1 L. R., C. C. 177 ; 19 L. T., N". S. 
 657; 11 Cox, C. C. 241. 
 
 The trustees of a benefit building 
 society borrowed money for the pur- 
 poses of their society on their indi- 
 vidual responsibility (there being 
 no rule of the society authorizing 
 them to borrow money). The mon- 
 ey on one occasion was received by 
 the secretary, and embezzled by 
 him : — Held, that he might be charg- 
 ed in an indictment for embezzle- 
 ment as the servant of W. and 
 others, W. being one of the trustees 
 and a member of the society. Reg. 
 V. Bedford, 21 L. T., N. S. 508 ; 17 
 W. R. 262— C. C. R. 
 
 When Society is ilkgaUy or irregu- 
 larly constituted^ — Where a society, 
 in consequence of administering to 
 its members an unlawful oath, is an 
 unlawful combination and confed- 
 eracy under 37 Geo. 3, c. 123 ; 39 
 Geo. 3, c. 79 ; 52 Geo. 3, c. 104 ; and 
 57 Geo. 3, c. 19 ; a person charged 
 with embezzlement, as clerk and serv- 
 ant to such society, cannot be con- 
 victed. Reg. V. Hunt, 8 C. & P. 
 642— Mirehouse, C. S. 
 
 It is embezzlement in the clerk 
 of a friendly society fraudulently to 
 withhold the rents of a house col- 
 lepted in the coursQ of his duty as 
 clerk ; and he may be laid to be 
 the clerk or servant of the trustees 
 to whom the house was conveyed, 
 if appelated either by them or the 
 society. It is no defence that the 
 
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THE OFFENCE. 
 
 133 
 
 business of the society has not been 
 conducted according to the statute. 
 Reg. V. Milhr, 2 M. C. C. 249. 
 
 When Society or Partnership is 
 illegally constituted.^ — An officer of 
 a friendly society, some of whose 
 rules were in restraint of trade, em- 
 bezzled its money : — Held, that rules 
 in restraint of trade are not criminal, 
 although they may be void as being 
 against public policy, and that a 
 society having such rules is entitled 
 to the protection of the criminal 
 law for its funds, and, consequently, 
 that the oificer might legally be 
 convicted of embezzlement. Heg. 
 V. Stainer, 1 L. R., C. C. 230 ; 39 
 L. J., M. C. 54 ; 18 W. R. 439 ; 21 
 L. T., N. S. 758. See 32 & 33 Vict, 
 c. 61. 
 
 Sy Persons in the Queen's Sen- 
 ice or by the Police.'] — By 24 & 25 
 Vict. c. 96, s. 70, "whosoever, be- 
 " ing employed in the public service 
 " of her Majesty, or being a consta- 
 " ble or other person employed in 
 " the police of any county, city, bo- 
 " rough, district or place whatsoev- 
 " er, and intrusted by virtue of such 
 " employment with the receipt, cus- 
 " tody, management or control of 
 " any chattel, money or valuable 
 " security, shall embezzle any chat- 
 " tel, money or valuable security 
 " which shall be intrusted to or re- 
 " ceived or taken into possession by 
 " him by virtue of his employment, 
 " or any part thereof, or in any 
 " manner fraudulently apply or dis- 
 " pose of the same or any part 
 " thereof to his own use or benefit, 
 " or for any purpose whatsoever 
 " except for the public service, shall 
 " be deemed to have feloniously stol- 
 " en the same from her Majesty, 
 " and being convicted thereof shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal sei-vi- 
 " tude for any term not exceeding 
 "fourteen years and not less than 
 "five years (27 & 28 Vict. c. 47), 
 " or to be imprisoned for .any term 
 
 Digitized by Microsoft® 
 
 ' not exceeding two years, with or 
 ' without hard labour ; 
 
 " And every oifender against this 
 ' section may be dealt with, indict- 
 ' ed, tried and punished either in 
 ' the county or place in which he 
 ' shall be apprehended or be in 
 ' custody, or in which he shall have 
 ' committed the oifence ; 
 
 " And in every case of larceny, 
 ' embezzlement or fraudulent appu- 
 ' cation or disposition of any chat- 
 ' tel, money or valuable security in 
 ' this and the last preceding section 
 ' mentioned, it shall, be lawful in 
 ' the warrant of commitment by the 
 'justice of the peace before whom 
 ' the ofiender shall be charged, and 
 ' in the indictment to be preferred 
 ' against such offender, to lay the 
 ' property of any such chattel, mon- 
 ' ey or valuable security in her Ma- 
 ' jesty." (Former provisions, 2 & 
 3 Will. 4, c. 4, ss. 1, 4, 5, and 22 
 & 23 Vict. c. 32, s. 25.) 
 
 It was proved that a post-office 
 letter-carrier was in the daily habit 
 of calhng at the lodge of an infirm- 
 ary, and there receiving letters, with 
 a penny on each, to prepay the post- 
 age of them ; and that he took 
 them, with the penny, to the post- 
 office; and that, during his illness, 
 a person who had performed his 
 duties did the like. There was no 
 evidence of any appointment: — 
 Held, in an indictment imder 2 & 
 3 Will. 4, c. 4, s. 1, for embezzUng 
 some of the pence thus received, 
 that this was evidence to go to the 
 jury, that the pence were received 
 by the prisoner by virtue of his em- 
 ployment as a letter-carrier. Req. 
 V. Tovmsend, Car. & M. 178— Col- 
 eridge. 
 
 An indictment for embezzlement 
 of money received by a clerk, whilst 
 such, was good under 2 & 3 Will. 
 4, c. 4, without alleging the embez- 
 zling to have taken place whilst he 
 was clerk. Rex v. Lovell, 2 M. & 
 Rob. 236— Coleridge. 
 
 Upon the trial of an indictment 
 under 2 .& 3 Will. 4, c. 4 s. 1, 
 
134 
 
 EMBEZZLEMENT BY CLERKS, ETC. 
 
 charging that A., being intrusted 
 by virtue of his employment in the 
 public service with the receipt and 
 custody of certain money, the prop- 
 erty of the crown, did fraudulently 
 and feloniously apply the same to 
 his own use, it was proved that A., 
 being a receiver of taxes, had kept 
 in his own hands a balance very 
 much exceeding that which he was 
 allowed to retain ; and upon being 
 asked whether he was prepared to 
 pay over that balance or any part 
 of it, he replied that he was not. 
 He was then reminded that there 
 was a balance of excise duties alone 
 of about 300^. standing against him 
 from the previous Monday, which 
 was a receipt day at a particular 
 place in his district. He then pro- 
 duced 255^., and said that was all 
 he had in the world ; and that the 
 rest he had spent in an unfortunate 
 speculation : — Held, that there was 
 evidence of the receipt of a partic- 
 ular sum of 300^. by virtue of his 
 employment, and of a misapplica- 
 tion by him of a part of it ; and 
 that, therefore, the conviction was 
 right, even if evidence of a general 
 deficiency on a balance of accounts 
 would not alone have supported 
 such an indictment. JReg. v. Moah, 
 7 Cox, C. C. 60; 2 Jur., K S. 213; 
 25 L. J., M. C. 66; Dears. C. C. 
 626. 
 
 On an indictment for embezzle- 
 ment against a letter-carrier, as a 
 person employed in the public serv- 
 ice of her Majesty, it is not neces- 
 sary to prove his appointment as a 
 letter-carrier, but evidence of his 
 having acted as such is sufficient. 
 Bex V. Borrett, 6 C. & P. 124— 
 Littledale. 
 
 If the wife of a party to whom a 
 letter is directed pays the postage 
 of the letter, she is entitled to de- 
 mand an overcharge made for it; 
 and a refusal on the part of the let- 
 ter-carrier to account for it to her 
 is evidence of an embezzlement by 
 him. Tb. 
 
 By Officers of the Bank of Eng- 
 land or Ireland.] — By 24 & 25 Vict. 
 c. 96, s. 73, "whosoever, being an 
 " officer or servant of the governor 
 " and company of the Bank of Eng- 
 " land or of the Bank of Ireland, 
 " and being intrusted with any bond, 
 " deed, note, bill, dividend warrant, 
 " or warrant for payment of any 
 " annuity or interest, or money, or 
 " with any security, money or other 
 " effects of or belonging to the said 
 " governor and company, or having 
 " any bond, deed, note, bill, divi- 
 " dend warrant, or warrant for pay- 
 " ment of any annuity or interest, 
 " or money, or any security, money 
 " or other effects of any other per- 
 " son, body politic or corporate, 
 " lodged or deposited with the said 
 " governor and company, or with 
 " him as an officer or servant of the 
 " said governor and company, shall 
 " secrete, embezzle, or run away 
 " with any such bond, deed, note, 
 " bill, dividend or other warrant, 
 " security, money, or other effects 
 " as aforesaid, or any part thereof, 
 " shall be guilty of felony, and be- 
 " ing convicted thereof shall be Ua- 
 " ble, atithe discretion of the court, 
 " to be kept in penal servitude for 
 " life or for any term not less than 
 « five years (27 & 28 Vict. c. 47), 
 " or to be imprisoned for any term 
 " not exceeding two years, with or 
 " without hard labour, and with or 
 " without solitary confinement." 
 
 2. Amounting to Barceny or Em- 
 bezzlement. 
 By 24 & 25 Vict. c. 96, s. 72, 
 " if upon the trial of any person 
 " indicted for embezzlement, or 
 " fraudulent application or disposi- 
 " tion as aforesaid, it shall be proved 
 " that he took the property in ques- 
 " tion in any such manner as to 
 " amount in law to larceny, he shall 
 " not by reason thereof be entitled 
 " to be acquitted, but the jury shall 
 " be at liberty to return as their 
 " verdict that such person is not 
 
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AMOUNTING TO LAECENY, ETC, 
 
 135 
 
 " guilty of embezzlement, or fraud- 
 " ulent application or disposition, 
 " but is guilty of simple larceny, or 
 " of larceny as a clerk, servant, or 
 " person employed for the purpose 
 "or in the capacity of a clerk or 
 " servant, or as a person employed 
 " in the public service, or in the po- 
 " lice, as the case may be ; and 
 " thereupon such person shall be 
 " liable to be punished in the same 
 " manner as if he had been con- 
 " victed upon an indictment for 
 " such larceny ; 
 
 " And if upon the trial of any 
 " person indicted for larceny it shall 
 " be proved that he took the prop- 
 " erty in question in any such man- 
 " ner as to amount in law to em- 
 " bezzlement, or fraudulent applica- 
 " tion or disposition as aforesaid, he 
 " shall not by reason thereof be 
 " entitled to be acquitted, but the 
 "jury shall be at liberty to return 
 " as their verdict that such person 
 " is not guilty of larceny, but is 
 " guilty of embezzlement, or fraud- 
 " ulent application or disposition, as 
 "the case may be, and thereupon 
 " such person shall be liable to be 
 " punished in the same manner as 
 " if he had been convicted upon an 
 " indictment for such embezzlement, 
 " fraudulent application or disposi- 
 "tion; and no person so tried for 
 *' embezzlement, fraudulent applica- 
 " tion or disposition, or larceny as 
 " aforesaid, shall be liable to be 
 " afterwards prosecuted for larceny, 
 " fraudulent application or disposi- 
 " tion, or embezzlement, upon the 
 " same facts." (Former provision, 
 14 & 15 Vict. c. 100, s. 13.) 
 
 A. was indicted for larceny as a 
 servant. At the trial there was ev- 
 idence of embezzlement, but none 
 of larceny: — Held, that although 
 by 14 & 15 Yict. c. 100, s. 13, a 
 person indicted for larceny might 
 be convicted of embezzlement, yet 
 he could not be convicted of lar- 
 ceny if there was only evidence of 
 embezzlement. Meg. v. Gorhvtt, 
 Dears. & B. C. C. 166; 3 Jur., N 
 
 S. 371; 26 L. J.,M. C. 47; 7 Cox, 
 C. C. 221. 
 
 On a charge for receiving goods 
 knowing them to have been feloni- 
 ously stolen and carried away, the 
 prisoner may be convicted if the 
 goods have been embezzled, and he 
 received them knowing them to 
 have been embezzled, for by 7 & 8 
 Geo. 4, c. 29, s. 47, embezzlement 
 is deemed stealing. Reg. v. Framp- 
 ton, Dears. & B. C. C. 585; 4 Jur., 
 N. S. 566; 27 L. J., M. C. 229. 
 
 The prisoner, who was clerk to 
 the prosecutor, was indicted for em- 
 bezzling certain monies belonging 
 to his master. The evidence shew- 
 ed that the prisoner had received at 
 different times several sums of mon- 
 ey from the prosecutor, a dealer in 
 skins, for the purpose of purchasing 
 skins. The prisoner obtained the 
 skins on credit, and applied the 
 money to his own use, but debited 
 prosecutor in his day-book with sev- 
 eral sums of money as having been 
 paid for the skins. The jury found 
 the prisoner not guilty of embezzle- 
 ment, but guilty of larceny : — Held, 
 that the conviction was wrong. 
 Heg. V. Goodenough, Dears. C. C. 
 210; 6 Cox, C. C. 206. 
 
 A. was indicted for embezzlement 
 as being a clerk and a servant of 
 B., C. and D. A first count laid 
 the offence, to wit, on the 18th of 
 August, 1861. A second count laid 
 a second act of embezzlement with- 
 in six months, to wit, on the 1st of 
 September. A third count laid a 
 third act of embezzlement also 
 within six months, under the same 
 videlicet. A. was a member of, 
 and secretary to, a properly certi- 
 fied friendly society, of which B., 
 C. and D. were the trustees, and 
 had, from time to time, received, 
 though not in his capacity of secre- 
 tary, funds belonging to the society, 
 some part of which he had appro- 
 priated : — Held, that A. was prop- 
 erly convicted of embezzlement as 
 the clerk and servant of B., C. and 
 D., and that the evidence of the 
 
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136 
 
 EMBEZZLEMENT BY CLERKS, ETC. 
 
 acts of embezzlement needed not to 
 be confined to the days stated under 
 the videlicets. Reg. v. Fraud, 10 
 W. R. 62; 5 L. T., K S. 331 ; L. & 
 C. 97 ; 31 L. J., M. C. 71 ; 9 Cox, 
 C. C. 22. 
 
 3. Indictment. 
 
 Form.]— By 24 & 25 Vict. c. 96, 
 s. 71, "for preventing difficulties in 
 " the prosecution of offenders ia any 
 " case of embezzlement, fraudulent 
 " application or disposition, it shall 
 " be lawful to charge in the indict- 
 " ment and proceed against the of- 
 " fender for any number of distinct 
 " acts of embezzlement, or of fraud- 
 " ulent application or disposition, 
 " not exceeding three, which may 
 " have been committed by him 
 " against her Majesty or against 
 " the same master or employer, 
 " within the space of six months 
 " from the first to the last of Such 
 " acts; 
 
 " And in every such indictment 
 " where the offence shall relate to 
 " any money or any valuable secu- 
 " rity it shall be sufficient to allege 
 " the embezzlement, or fraudulent 
 " application or disposition, to be of 
 " money, without specifying any 
 " particular coin or valuable secu- 
 "rity; 
 
 " And such allegation, so far as 
 " regards the description of the 
 " property, shall be sustained if the 
 " offender shall be proved to have 
 " embezzled or fraudulently applied 
 " or disposed of any amount, al- 
 " though the particular species of 
 " coin or valuable security of which 
 " such amount was composed shall 
 "not be proved; 
 
 " Or if he shall be proved to have 
 " embezzled or fraudulently applied 
 " or disposed of any piece of coin or 
 " any valuable security, or any por- 
 " tion of the value thereof, although 
 " such piece of coin or valuable se- 
 " curity may have been delivered to 
 " him in order that some part of the 
 " value thereof should be returned 
 " to the party delivering the same, 
 
 '• or to some other person, and Ruch 
 " part shall have been returned ac- 
 " cordingly. (Former provision,! 
 & 8 Geo. 4, c. 29, s. 48.) 
 
 An indictment, which charges in 
 one count that within six calendar 
 months the prisoner received three 
 sums, laying a day to the receipt of 
 each, and that, " on the several days 
 aforesaid," he embezzled these sums, 
 is bad, because it does not shew that 
 the sums were embezzled within six 
 months of each other; and this ob- 
 jection ought to be taken on demur- 
 rer. JReg. V. Purchase, Car. & M. 
 617 — Patteson. 
 
 An indictment which contains three 
 charges of embezzlement should not 
 only aver that the monies which are 
 the subject of the charges were re- 
 ceived within six months, but should 
 also aver that they were embezzled 
 within six months. Meg. v. Nbake, 
 2 C. & K. 620— Cresswell. 
 
 A count for embezzling bank 
 notes upon the statute may be 
 joined with a count for larceny. 
 Hex V. Johnson, 3 M. & S. 539. 
 
 Where, in an indictment for em- 
 bezzlement, there is a second count 
 charging another act of embezzle- 
 ment within six months from the 
 first, under 7 & 8 Geo. 4, c. 29, s. 
 48, but alleguig the money to be 
 the property of a different person 
 from that mentioned in the first 
 count, the words connecting the 
 second, count with the first may be 
 rejected as surplusage, and the sec- 
 ond count dealt with as an inde- 
 pendent count. Heg. v. WooUey, 
 4 Cox, C. C. 251— Piatt. 
 
 A prisoner was indicted in the 
 first count for embezzlement, and 
 in the second for larceny, as a 
 bailee. After plea pleaded and the 
 jury was charged, and in the course 
 of the trial, it was objected for the 
 prisoner that the indictment was 
 bad for misjoinder of counts. The 
 court overruled the objection, and 
 directed the prosecutor to elect up- 
 on which count he would proceed, 
 and the prosecutor having elected 
 
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PARTICULARS OF CHARGES. 
 
 137 
 
 to proceed iipon the second count, 
 the prisoner was found guilty there- 
 on : — Held, that the conviction was 
 right. Reg. v. Solman, 9 Cox, C. 
 C. 201 • L. & C. 177; 33 L. J., M. 
 C. 153; 12 W. R. 764; 10 L. T., 
 N. S. 464. 
 
 Where an indictment for embez- 
 zlement could not be supported be- 
 cause the offence was not an embez- 
 zlement but a larceny, and the lar- 
 ceny count stated the larceny to 
 have been committed " in manner 
 and form aforesaid": — Held, that 
 the prisoner could not be convicted. 
 Bex V. Murray, 5 C. & P. 145 ; 1 
 M. C. C. 276. 
 
 In an indictment for embezzling 
 money, it is not necessary to state 
 from whom the money so embez- 
 zled was received. Rex v. Beaoall, 
 1 C. & P. 313, 454— Park. 
 
 The halves of country bank- 
 notes, sent in a letter, are goods 
 and chattels; and a person who 
 embezzles them is indictable for 
 such embezzlement. Rex v. Mead, 
 4 C. & P. 535— Bosanquet. 
 
 If an indictment charges the pris- 
 oner with having embezzled " cer- 
 tain bills, commonly called Ex- 
 chequer bills," and it appears that 
 the person who signed them on the 
 part of government was not legally 
 authorized so to do, the indictment 
 is bad ; for they are not the things 
 which they are averred to be. Rex 
 V. AsleU, 2 Leach, C. C. 954, 958 ; 
 1 N. R. 1 ; R. & R. C. C. 67. 
 
 An indictment for embezzling 
 need not have specified the exact 
 sum embezzled. Rex v. Carson, 
 R. & R. C. C. 303 ; S. P., Rex v. 
 Grove, 1 M. C. C. 447, 
 
 Indictment. 1 — An indictment for 
 embezzling money under 24 & 25 
 Vict. c. 96, s. 68, is not proved by 
 shewing merely that the prisoner 
 embezzled a cheque, without evi- 
 dence that he has converted the 
 cheque into money. Reg. v. Keeixa, 
 17 L. T., N. S. 515 ; 16 W. R. 375 ; 
 
 1 L.R., C.-C. 113; 37L. J., M. C. 
 43 ; 11 Cox, C. C. 123. 
 
 Venue.] — An indictment for em- 
 bezzlement may be either laid in 
 the county in which the money was 
 received, or in the county where 
 the prisoner disowned having re- 
 ceived the money. Rex v. Hbbson, 
 R. & R. C. C. 56 ; 1 East, P. C. 
 Add. xxiv ; 2 Leach, C. C. 975. 
 
 If a servant receives money for 
 his master in the county of A., and, 
 being called upon to account for it 
 in the county of B., there denies 
 the receipt of it, he may be indict- 
 ed for the embezzlement in the lat- 
 ter coimty. Rex v. Taylor, 3 B. 
 & P. 596. 
 
 A prisoner, who was employed 
 as a travelling salesman by a trades- 
 man living at Nottingham, received 
 two sums of money for his master 
 in the county of Derbyshire, and, 
 having appropriated them to his 
 own use, neglected to return and 
 account to his master for the mon- 
 ey, as it was his duty to do ; and 
 having been, about two months 
 after the receipt of the money, met 
 by his master in Nottingham, and 
 on being asked by him respecting 
 the two sums of money, said he 
 was sorry for what he had done — 
 that he had spent the money : — 
 Held, that there was evidence to 
 go to the jury of an embezzlement 
 in Nottingham, and that the pris- 
 oner was rightly tried there. Reg. 
 V. Mwdock, 2 Den. C. C. 298; 16 
 Jur. 19; 21 L. J., M. C. 22 ; 5 
 Cox, C. C. 360. 
 
 4. Particulars of Charges. 
 If a prisoner does not know the 
 specific acts of embezzlement in- 
 tended to be charged against him, 
 he should apply to the prosecutor 
 for a particular of the charges; 
 and if it is refused, the judge will., 
 on motion supported by proper aiS- 
 davits, grant an order for such par- 
 ticular to be given, and postpone 
 
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138 
 
 EMBEZZLEMENT BY CLERKS, ETC. 
 
 the trial, if necessary. Such par- 
 ticular ought at least to state the 
 persons from whom money is al- 
 leged to have been received. Hex 
 Y. Hodgson, 3 C. & P. 422 — 
 Vaughan; S. P., Bex v. Booty- 
 man, 5 C. & P. 300— Littledale. 
 
 But the court of Queen's Bench 
 has no jurisdiction to make an 
 order upon a prosecutor to deliver 
 the particulars. The application 
 should be made to the judge at the 
 assizes. Beg. v. Haslam, 1 Jur., 
 N. S. 1139— B. C— Crompton. 
 
 5. Evidence. 
 
 It was the duty of a banking 
 clerk to receive money, and to pay 
 it either into a box or a till, of each 
 of which he kept the key, and to 
 make entries of his receipts in a 
 book ; the balance of each evening 
 being the first item with which he 
 debited himself in the book the 
 next morning. On the morning of 
 the day in question, he had thus 
 debited himself with 1,762^.; and 
 on being called on in the evening 
 by his employer to produce his 
 money, he threw himself on his em- 
 ployer's mercy, and said he was 
 about 900^. short. Upon an indict- 
 ment for embezzling : — Held, that 
 this was evidence upon which the 
 jury might convict, although no 
 evidence was given of the persons 
 from whom the money was re- 
 ceived, or of the coin of which it 
 consisted. Bex v. Grrove, 7 C. & 
 P. 635 ; 1 M. C. C. 447. 
 
 It is not enough to prove that a 
 clerk has received a sum of money 
 and not entered it in his book, un- 
 less there is also evidence that he 
 has denied the receipt of it, or the 
 Uke. Bex v. Jones, 7 C. & P. 833 
 — Bolland. 
 
 A., a servant of B., was sent to 
 receive rent due to B.; A. received 
 it, and immediately went off with 
 it to Ireland : — ^Held, that A.'s thus 
 leaving her place and going off to 
 Ireland, was evidence from which 
 the jury might infer that A. in- 
 
 tended to embezzle the money. 
 Bex V. Williams, 7 C. & P. 338— 
 Coleridge. 
 
 If a person receives money as 
 steward of another, proof of that cir- 
 cumstance is sufficient evidence of 
 his being a steward, to support an 
 indictment for embezzling such 
 money. Bex v. Beacall, 1 C. & 
 P. 312 ; and Bex v. Wettings, 1 C. 
 & P. 454, 457— Park. 
 
 In a portmanteau not proved to 
 belong to a prisoner on trial was 
 found a paper folded like a letter, 
 and containing in the inside what 
 purported to be an inventory of 
 goods pawned at different times. 
 The inventory was not in his hand- 
 writing ; but on the outside of the 
 paper his name, and the word pri- 
 vate, both in his handwriting, were 
 indorsed : — Held, that the contents 
 of the paper were not admissible 
 against him. Beg. v. Sare, 3 Cox, 
 C. C. 247. 
 
 A., a brewer, sent his drayman 
 B. out with porter, with authority 
 to sell it at fixed prices only. B. 
 sold some of it to C, at an under 
 price, and did not receive the mon- 
 ey at the time ; A. heard of this, 
 and, unknown to B., told C. to J)ay 
 B. the amount, which C. did, and 
 B., when asked for it by A., denied 
 the receipt of the money : — ^Held, 
 to be sufficient evidence of embez- 
 zlement. Beg. V. Aston, 2 C. & 
 K. 413— Patteson. 
 
 A person indicted as servant to 
 guardians of the poor of a parish : 
 — Held, that the admission by him 
 contained in the condition of his 
 bond for the performance of his 
 duties as treasurer, coupled with an 
 act of parliament specifying those 
 duties, was sufficient evidence of 
 the nature of his appointment, viz., 
 that he was to receive money for 
 the guardians, and account to them 
 for his receipts. Beg. v. Welch, 1 
 Den. C. C. 199 ; 2 C. & K. 296. 
 
 Where there has been a written 
 agreement between master and ser- 
 vant, in which the nature of the 
 
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EVroiNCE. 
 
 139 
 
 service is defined, on an indictment 
 for embezzlement against the latter, 
 parol evidence of the service is in- 
 admissible, unless notice has been 
 given to produce the agreement. 
 lieff V. Clapton, 3 Cox, C. C. 126— 
 Patteson. 
 
 O. was indicted for embezzle- 
 ment, and for the purpose of prov- 
 ing his identity as the person re- 
 ceiving certain things from S. & 
 Co. for the prosecutor, an entry in 
 a book of S. & Co. was read in evi- 
 dence. The account vras kept in 
 four columns, in the first of which 
 were entered the dates ; in the sec- 
 ond the name of the person on 
 whose behalf the money was re- 
 ceived ; in the third the signature 
 of the person receiving ; and in the 
 fourth the amount of the particular 
 payment made by S. & Co.: — Held, 
 that the entry, as explained by the 
 evidence, amounted to a receipt; 
 and that even for the purpose of 
 proving identity, the whole entry 
 could not be read without a stamp, 
 and that therefore the conviction 
 was wrong. JSeg. v. Overton, Dears. 
 C. C. 308; 6 Cox, C. C. 277; 18 
 Jur. 134 ; 23 L. J., M. C. 29. 
 
 But by 17 & 18 Vict. c. 83, s. 27, 
 " every instrument Uable to stamp 
 " duty shall be admitted in evi- 
 " dence in any criminal proceeding, 
 " although it may not have the 
 " stamp required by law impressed 
 " thereon, or afiixed thereto." 
 
 An indictment charged the pris- 
 oner with having embezzled three 
 sums of twenty-one pounds, the 
 monies of his employers, he being 
 a clerk or servant. Evidence was 
 given of the embezzlement of these 
 sums, and it was then proposed to 
 give evidence of other sums not 
 charged in the indictment, but 
 which had also been embezzled, to 
 shew that if it should be contended 
 the sums charged in the indictment 
 were subjects of a mistake in keep- 
 ing the accounts, there being many 
 other sums unaccounted for, admit- 
 ting evidence of such sums would 
 
 assist the jury in determining what 
 value was - to be attached to the 
 suggestion: — ^Held, that such evi- 
 dence was admissible. Seg. v. 
 Bichardsm, 8 Cox, C. C. 448 ; 2 
 •f. & F. 343— WilUams. 
 
 A clerk to a savings bank was 
 convicted on an indictment charg- 
 ing him with embezzlement, the 
 property being laid in A. In order 
 to prove that A. was a trustee of 
 the b^nk, he was called, and stated 
 that since the commission of the 
 offence he had been acting as a 
 trustee, but that before that date 
 he had attended only one meeting, 
 having on that occasion been re- 
 quested to do so lest there should 
 be a deficiency of trustees ; but he 
 was also a manager of the bank, 
 and it did not appear that any act 
 was done by him at that meeting 
 which he might not have done as a 
 manager : — ^Held, that this was in- 
 suiBcient evidence of acting to sup- 
 port the inference of the legal ap- 
 pointment of A. as a trustee, and 
 that the conviction was wrong. 
 Meg. V. Essex, Dears. & B. C. C. 
 369 ; 4 Jur., N. S. 15 ; 7 Cox, C. 
 C. 384. 
 
 XIY. EjIBEZZLBMBira AND Fkauds 
 
 BY Agents, Bankbes, Teustbes 
 
 AND OinEES. 
 
 1. Aaents and Bankers, \S9. 
 
 2. Trustees, 142. 
 
 3. Directors, Members and Officers oj 
 
 Companies, 143. 
 
 4. Disclosure of Circumstances, 144. 
 
 5. Jurisdiction of Quarter Sessions, 
 
 144. 
 
 6. By Traders — See Bankruptcy. 
 
 1. Agents and Bankers. 
 By Conversion of Monies or Se- 
 curities.]— Bj 24 & 25 Vict c. 96, 
 s. 75, " whosoever, having been in- 
 " trusted, either solely or jointly 
 " with any other person, as a bank- 
 " er, merchant, broker, attorney or 
 " other agent, with any money or 
 " security for the payment of mon- 
 " ey, with any direction in writing 
 
 Digitized by Microsoft® 
 
140 
 
 EMBEZZLEMENT BT AGENTS, ETC. 
 
 "to apply, pay or deliver sucli 
 "money or security, or any part 
 " thereof respectively, or the pro- 
 " ceeds or any part of the proceeds 
 " of such security, for any purpose, 
 " or to any person specified in such 
 " direction, shall, in violation of 
 " good faith, and contrary to the 
 " terms of such direction, in any- 
 " wise convert to his own use or 
 " benefit, or the use or benefit of 
 " any person other than the person 
 " by whom he shall have been so 
 " intrusted, such money, security 
 "or proceeds, or any part thereof 
 "respectively." (Former provis- 
 ion, 7 & 8 Geo. 4, c. 29, s. 49.) 
 
 £y Selling, Negotiating or Pledg- 
 ing Seffurities.] — " And whosoever, 
 " having been intrusted, either sole- 
 "ly or jointly with any other per- 
 " son, as a banker, merchant, 
 " broker, attorney or other agent, 
 " with any chattel or valuable se- 
 " curity, or any power of attorney 
 " for the sale or transfer of any 
 " share or interest in any public 
 " stock or fund, whether of the 
 " United Kingdom, or any part 
 " thereof, or of any foreign state, 
 " or in any stock or fund of any 
 " body corporate, company or so- 
 " ciety, for safe custody or for any 
 " special purpose, without any au- 
 " thority to sell, negotiate, transfer 
 " or pledge, shall, in violation of 
 " good faith, and contrary to the 
 " object or purpose for which such 
 " chattel, security or power of at- 
 " torney shall "have been intrusted 
 " to him, sell, negotiate, transfer, 
 " pledge or in any manner convert 
 " to his own use or benefit of any 
 " person other than the person by 
 "whom he shall have been so in- 
 " trusted, such chattel or security, 
 " or the proceeds of the same, or 
 " any part thereof, or the share or 
 "interest in the stock or fund to 
 " which such power of attorney 
 " shall relate, or any part thereof, 
 " shall be guilty of a misdemeanor, 
 ". and being convicted thereof shall 
 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for any term not exceeding 
 " seven years and not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour, and with or 
 " without solitary confinement." 
 [Former provision, 7 & 8 Geo. 4, 
 c. 29, ss. 49, 50, and 7 & 8 Geo. 4, 
 c. 27 repealed 52 Geo. 3, c. 63.) 
 
 £y /Selling Property or Securities 
 ini/nmted to their Garel\ — By s. 76, 
 " whosoever, being a banker, mer- 
 " chant, broker, attorney or agent, 
 " and being intrusted, either solely 
 " or jointly with any other person, 
 " with the property of any other 
 " person for safe custody, shall, 
 " with intent to defraud, sell, nego- 
 " tiate, transfer, pledge, or in any 
 " manner convert or appropriate 
 " the same, or any part thereof, to 
 " or for his own use or benefit, or 
 " the use or benefit of any person 
 " other than the person by whom 
 " he was so intrusted, shall be guilty 
 " of a misdemeanor." [Former pro- 
 vision, 20 & 21 Viet. c. 54, s. 2.) 
 
 Acting ymfier Powers of Attor- 
 ney.^ — By s. 77, " whosoever, being 
 " intrusted, either solely or jointly 
 " with any other person, with any 
 " power of attorney for the sale or 
 " transfer of any property, shall 
 " fraudulently sell or transfer or 
 " otherwise convert the same, or 
 " any part thereof, to his own use 
 " or benefit, or the use or benefit of 
 " any person other than the person 
 " by whom he was so iatrusted, 
 " shall be guilty of a misdemeanor." 
 [Former provision, 20 & 21 Vict, 
 c. 54, s. 3.) 
 
 Factors fraudulently obtaining Ad- 
 vances on Property of Principah.'\ 
 — By s. 78, " whosoever, being a 
 " factor or agent intrusted, either 
 " solely or jointly with any other 
 " person, for the purpose of sale or 
 
 Digitized by Microsoft® 
 
AGENTS AND BANKERS. 
 
 141 
 
 otherwise with the possession of 
 any goods, or of any document of 
 title to goods, shall, contrary to or 
 without the authority of his prin- 
 cipal in that behalf, for his own 
 use or benefit, or the use or ben- 
 efit of any person other than the 
 person by whom he was so in- 
 trusted, and in violation of good 
 faith, make any consignment, de- 
 posit, transfer or delivery of any 
 goods or document of title so in- 
 trusted to him as in this section 
 before mentioned, as and by way 
 ' of a pledge, hen or security for 
 ' any money or valuable security 
 borrowed or received by such fac- 
 tor or agent at or before the time 
 of making such consignment, de- 
 posit, transfer or delivery, or in- 
 tended to be thereafter borrowed 
 or received, or shall, contrary to 
 or without such authority, for his 
 own use or benefit, or the use or 
 ' benefit of any person other than 
 the person by whom he was so in- 
 trusted, and in violation of good 
 faith, accept any advance of any 
 money or valuable security on the 
 faith of any contract or agreement 
 to consign, deposit, transfer or de- 
 liver any such goods or document 
 ' of title, shall be guilty of a mis- 
 ' demeanor, and, being convicted 
 ' thereof, shall be liable, at the dis- 
 
 ■ cretion of the court, to any of the 
 
 ■ punishments which the court may 
 
 ■ award as hereinbefore last men- 
 
 ■ tioned " ; 
 
 " And every clerk or other person 
 • who shall knowingly and wilfully 
 ' act and assist in making any such 
 
 ■ consignment, deposit, transfer or 
 delivery, or in accepting or pro- 
 curing such advance as aforesaid, 
 shall be guilty of a misdemeanor, 
 and being convicted thereof, shall 
 be liable, at the discretion of the 
 court, to any of the same punish- 
 ments : provided, that no such 
 factor or agent shall be liable to 
 any prosecution for consigning, 
 depositing, transferring or delivei-- 
 ing any such goods or documents 
 
 " of title, in case the same shall not 
 " be made a security for or subject 
 " to the payment of any greater sum 
 " of money than the amount which 
 " at the time of such consignment, 
 " deposit, transfer or delivery was 
 " justly due and owing to such agent 
 " from his principal, together with 
 " the amount of any bill of exchange 
 " drawn by or on account of such 
 " principal, and accepted by such 
 " factor or agent." {Former pro- 
 vision, 6 &6 Vict. c. 39, s 6.) 
 
 The 52 Geo. 3, c. 63, applied only 
 to persons to whom securities by 
 agents were intrusted in the exer- 
 cise of their function or business. 
 Bex V. Prince, 2 C. & P. 617— Ab- 
 bott. 
 
 Where a party established a sav- 
 ings bank, consisting of 130 mem- 
 bers, each of whom paid a weekly 
 subscription of 2s. Id., the odd pen- 
 ny being paid to him for the trouble 
 of managing the affairs of the bank, 
 the funds of which were to be dis- 
 posed of once a week by a lottery, 
 consisting of 129 blanks, and one 
 prize amounting to 13Z. which was 
 to go to the holder of the fortunate 
 ticket ; and the defendant having 
 absconded, after receiving from one 
 of the subscribers deposits to the 
 amount of 101. 8s. without receiving 
 any benefit therefrom : — Held, that 
 he was not indictable under the 52 
 Geo. 3, C.63, for embezzling the mon- 
 ey as an agent, or as a person hav- 
 ing the possession of money for safe 
 custody. Hex v. Mason, D. & R. 
 N. P. C. 22— Park. ' 
 
 A. placed valuable securities in 
 the hands of B., with a written di- 
 rection to invest the proceeds in the 
 funds, " in case of any unexpected 
 accident happening to A." No ac- 
 cident did happen to A., and the 
 proceeds were by B. converted to 
 his own use : — Held, that B. was 
 not indictable under 52 Geo. 3, c. 
 63 (repealed) ; and it seemed that 
 he would not be so under 7 & 8 Geo. 
 4, c. 29, s. 49. Hex v. White, 4 C. 
 & P. 46— Tenterden. 
 
 Digitized by Microsoft® 
 
142 
 
 EMBEZZLEMENT BY AGENTS, ETC. 
 
 An allegation in an indictment, 
 that A. plaped valuable securities 
 in the hands of B., " with an order 
 in writing, to invest the proceeds in 
 the government funds," is not sup- 
 ported by proof of an order in writ- 
 ing, directing B. to invest the pro- 
 ceeds in the government funds, in 
 case of any unexpected accident 
 happening to A. lb. 
 
 If any chattel or valuable secur- 
 ity is intrusted to any broker or 
 agent originally for the purpose of 
 sale, but the authority to sell is after- 
 wards countermanded, and the brok- 
 er or agent, notwithstanding that 
 countermand, sells the goods in vi- 
 olation of the orders of his principal, 
 such broker or agent might be con- 
 victed of misdemeanor, under 7 & 
 8 Geo. 4, c. 29, s. 49. JReg. v. Gomm, 
 3 Cox, C. C. 64— Maule. 
 
 An indictment on 7 & 8 Geo. 4, 
 c. 29, s. 49, against a broker for em- 
 bezzlement of a security for money, 
 must have alleged a written direc- 
 tion to him as to the application of 
 the proceeds. Reg. v. Golde, 2 M. 
 & Rob. 425 — ^Denman. 
 
 2. Trustees. 
 By 24 & 25 Vict. c. 96, s. 80, 
 " whosoever, being a trustee of any 
 " property for the use or benefit, 
 " either wholly or partially, of some 
 " other person, or for any public or 
 " charitable purpose, shall, with in- 
 " tent to defraud, convert or appro- 
 " priate the same or any part there- 
 " of to or for his own use or benefit, 
 " or the use or benefit of any per- 
 " son other than such person as 
 " aforesaid, or for any purpose oth- 
 " er than such public or charitable 
 " purpose as aforesaid, or otherwise 
 " dispose of or destroy such prop- 
 " erty or any part thereof, shall 
 " be guilty of a misdemeanor : 
 " provided, that no proceeding or 
 " prosecution for any offence in- 
 " eluded in this section shall be 
 "commenced without the sanction 
 "of the Attorney-General, or, in 
 
 " case that oifice be vacant, of the 
 " Solicitor-General : provided also, 
 " that where any civil proceeding 
 " shall have been taken against any 
 " person to whom the proviaons of 
 " this section may apply, no person 
 " who shall have taken such civil 
 " proceeding shall commence any 
 " prosecution under this section 
 " without the sanction of the court 
 " or judge before whom such civil 
 " proceeding shall have been had or 
 " shall be pending." (Former pro- 
 vision, 20 & 21 Viet. c. 54 ss. 1 and 
 13.) 
 
 By B. 1, "the term 'trustee' shall 
 "mean a trustee on some express 
 " trust created by some deed, wiU. • 
 " or instrument in writing, and shall 
 " include the heir, or personal repre- 
 " sentative of any such trustee, and 
 " any other person upon or to whom 
 " the duty of such trust shall have 
 " devolved or come, and also an ex- 
 " ecutor and administrator, and an 
 " official manager, assignee, Hquid- 
 " ator or other like officer, acting 
 " under any present or future act 
 " relating to joint stock companies, 
 " bankruptcy or insolvency." (For- 
 mer provision, 20 & 21 Vict. c. 54, 
 s. 17.) 
 
 A person, who was trustee, treas- 
 urer and secretary of a savings bank, 
 was indicted for misappropriation 
 as a trustee. As secretary, he re- 
 ceived the money deposited, which, 
 by the rules of the savings Ijank, it 
 was his duty to hand over to the 
 treasurer, who was required by the 
 Savings IBank Acts to pay it over, 
 when demanded, to the trustees, 
 whose duty as defined by the rules, 
 was to vest it in the public funds in 
 the names of the Commissioners for 
 the Reduction of the National Debt. 
 He falsified his accounts, and appro- 
 priated to his own purposes part of 
 the money so deposited with him as 
 secretary, with intent to defraud : — 
 Held, first, that he was a trustee for 
 the benefit of other persons. Meg. 
 V. Fktcher, L. & C, C. C. 180 ; 32 
 
 Digitized by Microsoft® 
 
DIRECTORS, ETC., OF COMPANIES. 
 
 143 
 
 L. J., M. C. 206 ; 9 Cox, C. C. 189 ; 
 8 Jur., N. S. 649 ; 10 W. R. 753 ; 6 
 L. T., N. S.645. 
 
 Held, secondly, that the rules of 
 the savings bank were an instru- 
 ment in writing. Ih. 
 
 Held, thirdly, that there was an 
 express trust created by the rules, 
 although they were made before the 
 appointment of the trustee and the 
 existence of the trust fund. Ih. 
 
 A trustee of a friendly society (a 
 lodge of Odd Fellows), -wras appoint- 
 ed, by resolution of the society, to 
 receive money from the treasurer 
 and carry it to the bank. He re- 
 ceived the money, but instead of 
 taking it to the bank, he applied it 
 to his own purposes. He was in- 
 dicted as a bailee of the monies of 
 the treasurer R. C, feloniously con- 
 verting the money to his own use ; 
 and also for a common law larceny 
 of the money of R. C. The 18 & 19 
 Vict. c. 63, s. 18, vests the property 
 of such societies in the trustees, and 
 directs the property to be laid in the 
 names of the trustees in indictments : 
 — Held, that the prisoner could not 
 be convicted of feloniously convert- 
 itig or stealing the monies of R. C 
 as charged in the indictment. Reg. 
 V. Loose, 9, Cox, C. C. 302 ; 1 Bell, 
 C. C. 259 ; 29 L. J., M. C. 132 ; 2 
 L. T., N. S. 254. 
 
 The court of Chancery sanctioned 
 criminal proceedings upon an affida- 
 vit, stating that a trustee had paid 
 1,409Z. into his private bankers, had 
 drawn out the whole, with the ex- 
 ception of 28^., and had paid a pri- 
 vate debt of 150Z. out of the trust 
 funds. Wadham v. Rigg, 1 Drew. 
 & Sm. 216. 
 
 3, Directors, Members, and Officers 
 of Companies. 
 
 Fraudulently Appropriating Prop- 
 erty.]— Bj 24 & 25 Vict. c. 96, s. 81, 
 " whosoever, being a director, mem- 
 " ber or public officer of any body 
 " corporate or public company, shall 
 " fraudulently take or apply for his 
 
 " own use or benefit, or for any use 
 " or purposes other than the use or 
 " purposes of such body corporate 
 "or pubUo company, any of the 
 " property of such body corporate 
 " or pubhc company, shall be guilty 
 " of a misdemeanor. 
 
 Keeping Fraudulent Accounts.] — 
 By s. 82, " whosoever, being a di- 
 " rector, public officer or manager 
 " of any body corporate or pubUo 
 " company, shall, as such, receive 
 " or possess himself of any of the 
 " property of such body corporate 
 " or public company otherwise than 
 " in payment of a just debt or de- ' 
 " mand, and shall, with intent to 
 " defraud, omit to make or to cause 
 " or direct to be made a full and 
 "true entry thereof in the books 
 " and accounts of such body corpor- 
 " ate or public company, shall be 
 " guilty of a misdemeanor." 
 
 Destroying, Altering, Mutilating 
 or Falsifying Dooks.] — By. s. 83, 
 " whosoever being a director, man- 
 " ager, public officer or member of 
 " any body corporate or public com- 
 " pany, shall, with intent to defraud, 
 " destroy, alter, mutilate or falsify 
 " any book, paper, writing or valu- 
 " able security belonging to the 
 " body corporate or public company, 
 " or make or concur in the making 
 " of any false entry, or omit or con- 
 " cur in the omitting any material 
 " particular, in any book of account 
 " or other document, shall be guilty 
 " of a misdemeanor." 
 
 Publishing Fraudulent State- 
 ments.'] — By s. 84, " whosoever, be- 
 " ing a director, manager or public 
 " officer of any body corporate or 
 " public company, shall make, cir- 
 " culate or publish, or concur in 
 " making, circulating or pubUshing, 
 " any written statement or account 
 " which he shall know to be false in 
 "any material particular, with in- 
 "tent to deceive or defraud any 
 " member, shareholder or creditor 
 
 Digitized by Microsoft® 
 
144 
 
 EMBEZZLEMENT BY AGENTS, ETC. 
 
 " of any such body corporate or 
 " public company, or with intent to 
 " induce any person to become a 
 " shareholder or partner therein, or 
 " to intrust or advance any property 
 " to such body corporate or public 
 " company, or to enter into any se- 
 " curity for the benefit thereof, shall 
 " be guilty of a misdemeanor." 
 
 4. Disclosure of Gircwmstances. 
 
 By 24 & 25 Yict. c. 96, s.85,, noth- 
 " ing in any of the last ten preceding 
 " sections of this act contained shall 
 " enable or entitle any person to re- 
 ' ' fuse to make a full and complete 
 " discovery by answer to any bill ia 
 " equity, or to answer any question 
 "or interrogatory in any civil pro- 
 " ceeding in any court, or upon the 
 " hearing of any matter in bank- 
 ' ' ruptcy or insolvency ; and no per- 
 " son shall be liable to be convicted 
 " of any of the misdemeanors in any 
 " of the said sections mentioned by 
 " any evidence whatever in respect 
 " of any act done by him, if he shall 
 " at any 'time previously to his being 
 " charged with such offence have 
 " first disclosed such act on oath, in 
 " consequence of any compulsory 
 " process of any court of law or 
 " equity, in any action, suit or pro- 
 " ceeding which shall have been 
 " bona fide instituted by any party 
 " aggrieved, or if he shall have first 
 " disclosed the same in any com- 
 " pulsory examiaation or deposition 
 " before any court, upon the hearing 
 " of any matter in bankruptcy or in- 
 " solvency." (Former provision, 7 
 & 8 Geo. 4, c. 29, s. 52 ; 6 & 6 Vict, 
 c. 39, s. 6, and 20 & 21 Vict. c. 54, 
 s. 11.) 
 
 Semble, a disclosure of any illegal 
 act to which the statute relates must 
 to be rendered available as a protec- 
 tion, be made bonS. fide, and must 
 not be a mere voluntary statement 
 made for the express purpose of 
 screening the person making it 
 from the consequences of his acts. 
 In re Strahan, Paid and Bates, 7 
 Cox, C. C. 85. 
 
 An agent intrusted with a bill of 
 lading, without authority of his 
 principals, and in violation of good 
 faith, deposited it with bankers for 
 his own benefit, as a security for ad- 
 vances. He was charged with this 
 ofience before a magistrate. The 
 depositions which were taken in 
 support of the charge contained 
 ample evidence to support it. Hav- 
 ing become bankrupt, he was taken 
 by his creditors and examined re- 
 specting the subject-matter of the 
 charge before a commissioner in 
 bankruptcy, and then made a state- 
 ment in every respect in accordance 
 with the evidence in the depositions. 
 He was afterwards indicted on the 
 same charge. On the trial, his ex- 
 amination in bankruptcy was of- 
 fered by him as a defence, as show- 
 ing that he had disclosed the act 
 before a commissioner in bankrupt- 
 cy previously to being indicted for 
 the ofience, and that therefore he 
 was not liable to conviction, by vir- 
 tue of 5 & 6 Vict. c. 39, s. 6. This 
 evidence of disclosure was held to 
 be admissible under not guilty. 
 Beg. V. Skeen, Bell, C. C. 97 ; 5 
 Jur., N. S. 151 ; 28 L. J., M. C. 91 ; 
 8 Cox, C. C. 143 ; 7 W. R. 255. 
 
 The majority of a court was, 
 however, of opinion, that as the 
 agent only stated before the com- 
 missioner matter which had been 
 previously known and previously 
 proved before the magistrate, he had 
 not made any disclosure within the 
 meaning of the statute, and conse- 
 quently was not entitled to protec- 
 tion. The minority held, that as the 
 statement of the agent was obtained 
 on a compulsory examination, insti- 
 tuted bon^ fide by the creditors for 
 their own interest, it was a disclos- 
 ure before a commissioner within the 
 act, notwithstanding the previous 
 publicity of the matter there inquir- 
 ed into. lb. 
 
 5. Jurisdiction of Quarter Sessions. 
 
 By 24 & 25 Vict. c. 96, s. 87, 
 
 "no misdemeanor against any of 
 
 Digitized by Microsoft® 
 
FALSE PRETENCES AND CHEATS -STATUTES. 145 
 
 " the last twelve preceding sections 
 " of this act shall be prosecuted or 
 " tried at any court of general or 
 " quarter sessions of the peace." 
 
 Jurisdiction of Justices to hear and 
 determine.'] — By 31 & 32 Vict. c. 
 116, s. 2, all the provisions of 18 & 
 19 Vict. c. 126, "for the summary 
 "convictions of defendants by jus- 
 " tices, shall extend and be applic- 
 " able to the offence of embezzle- 
 " ment by clerks and servants, or 
 " persons employed for the purpose 
 " or in the capacity of clerks or 
 '■ servants ; and the said act shall be 
 " read as if the offence of embezzle- 
 " ment had been included therein." 
 
 XV. 
 
 False Pketences 
 Cheats. 
 
 1. Statutes, 145. 
 
 2. What are, 146. 
 
 (a) Genei-al Principles, li6, 
 
 (b) By means of False Orders, 
 
 151. 
 
 ( c ) By means of False Accounts, 
 
 152. 
 
 (d) By means of Contracts, 153. 
 
 (e) As to the tluality of Articles 
 
 of Merchandise, 155. 
 
 (f ) As to the Quantity or Weight 
 
 of Articles of Merchandise, 
 156. [158. 
 
 (g) By Promises of Marriage, 
 (h) By means of Cheques, Bills 
 
 of Exchange or Promissory 
 
 Notes, 158. 
 (i) By passing off • Flash or 
 
 Worthless Bank Notes, 
 
 160. 
 ( j ) In respect of what Chattels or 
 
 Securities, 161. 
 
 3. Cheats, 162. 
 
 4. Inducing persons hy Fraud to exe- 
 
 cuteor destroy Valuable Securities, 
 
 5. Amounting to Larceny, 163. [162. 
 
 6. Parties Indictable, 164. 
 
 7. Indictment, 164. 
 
 8. Evidence, 167. 
 
 9. IVial, 169. 
 
 10. Receiving Property obtained by 
 False Pretences, 170. 
 
 1. Statutes. 
 
 By 24 & 25 Vict. c. 96, s. 88, 
 
 " whosoever shall by any false pre- 
 
 " tence obtain from any other per- 
 
 " son any chattel, money or valu- 
 
 Fish. Dig.— 10. Digitized by Microsoft® 
 
 " able security, with intent to de- 
 " fraud, shall be guilty of a misde- 
 " meanor, and being convicted 
 " thereof shall be liable, at the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for the term of 
 " three years, or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard labour, 
 " and with or without solitary con- 
 " finement." (Previous enactment, 7 
 & 8 Geo. 4, c. 29. s. 53, repealed hy, 
 24 & 25 Vict. c. 95.) 
 
 " Provided, that if upon the trial 
 " of any person indicted for such mis- 
 " demeanor, it shall be proved that 
 " he obtained the property in ques- 
 " tion in any such manner as to 
 " amount in law to larceny, he shall 
 " not by reason thereof be entitled 
 " to be acquitted of such misde- 
 " meanor ; and no person tried for 
 " such misdemeanor shall be liable 
 " to be afterwards prosecuted for 
 " larceny upon the same facts." 
 
 7 & 8 Geo. 4, c. 29, wholly re- 
 pealed 33 Hen. 8, c. 1 ; 52 Geo. 3, c. 
 64, aw<^ so much of 30 Geo. 2, c. 24, 
 s. 1, as related to this subject. 
 
 Bank-notes were not money, 
 goods, wares or merchandises, with- 
 in 30 Geo. 2, c. 24, s. 1. Sex v. 
 Bill, R. & R. C. C. 190. But 7 & 
 8 Geo. 4, 0. 29, s. 53, extended 30 
 Geo. 2, c. 24, to persons obtaining, 
 by false pretences, any valuable se- 
 curity. 
 
 By 24 & 25 Vict. c. 96, s. 89, 
 " whosoever shall by any false pre- 
 " tence cause or procure any money 
 " to be paid, or any chattel or val- 
 " uable security to be delivered to 
 " any other person for the use or 
 " benefit or on account of the per- 
 " son making such false pretence, 
 " or of any other person, with in- 
 " tent to defraud, shall be deemed 
 " to have obtained such money, 
 " chattel or valuable security with- 
 " in the mea,ning of the last precede 
 " ing section." 
 
 •To constitute the offence of ob- 
 taining any chattel, money or valu- 
 able security by false pretences, the 
 
146 
 
 FALSE PRETENCES AND CHEATS. 
 
 obtaining must be in accordance 
 with the wish, or for the advantage, 
 or for the purpose of effecting some 
 object, of the party making the 
 false pretence. Reg. v. Garrett, 
 Dears. C. C. 232; 17 Jur. 1060; 
 23 L. J., M. C. 20 ; 2 C. L. R. 106 ; 
 6 Cox, C. C. 260. 
 
 By 22 & 23 Vict. c. 17, s. 1, " no 
 " bill of indictment for obtaining 
 " money or other property by false 
 " pretences shall be found by any 
 " grand jury unless the prosecutor 
 " has been bound by recognizance 
 " to prosecute, or the person accused 
 " has been committed or bound by 
 " recognizance to answer an indict- 
 " ment for such offence, or unless 
 " the indictment is preferred by the 
 " direction, or with the written con- 
 " sent, of a judge or of the attorney- 
 " general." 
 
 2. What are. 
 
 (a) General Principles. 
 
 A pretence that a person would 
 do an act that he did not mean to 
 do (as a pretence to pay for goods 
 on delivery), was not a false pre- 
 tence within 30 Geo. 2, c. 24, s. 1. 
 Sex V. Goodhall, R & R. C. C. 461. 
 
 But pretending to have been in- 
 trusted by one to take his horses 
 from Ireland to London, and to have 
 been detained by contrary winds 
 till all his money was expended, 
 was within 30 Geo. 2, c. 24, s. 1. 
 Bex V. ViUeneuve, 2 East, P. C. 830. 
 
 It was a false pretence within 30 
 Geo. 2, c. 24, s. 1, where the prison- 
 er obtained money from the keeper 
 of a post office, by assuming to be 
 the person mentioned in a money 
 order, which he presented for pay- 
 ment, though he did not make any 
 false declaration or assertion in or- 
 der to obtain the money. Hex v. 
 Story, R. & R. C. C. 8i: 
 
 A prisoner was charged with ob- 
 taining & filly by the false pretence 
 that he was a gentleman's servant, 
 and had lived at Brecon, and had 
 bought twenty horses in Brecon fair. 
 
 It appeared that he bought the filly 
 of the prosecutor for 111., making 
 him this statement, which was false, 
 and also telling him that he would 
 come down to the Cross Keys and 
 pay him. The prosecutor stated 
 that he parted with his filly because 
 he expected the prisoner would 
 come to the Cross Keys and pay 
 him, and not because he believed 
 that the prisoner was a gentleman's 
 servant : — Held, that if the prose- 
 cutor did not part with his filly by 
 reason of the false pretence charged, 
 or any part of it, the prisoner must 
 be acquitted. liex v. I>ale, 7 C. & 
 P. 352— Coleridge. 
 
 A pretence to a parish officer, as 
 an excuse for not working, that the 
 party has not clothes, when he really 
 has, although it induces the officer 
 to give him clothes, was not obtain- 
 ing goods by false pretences within 
 30 Geo. 2, c. 24, s. 1. Hex v. Wake- 
 ling, R. & R. C. C. 504. 
 
 The offence of obtaining money 
 under false pretences, created by 30 
 Geo. 2, c. 24, s, 1, was complete 
 only where the money was obtained. 
 Pearson v. M' Gowran, cited 5 D. & 
 R. 616; 3B. &C. 700. 
 
 To have constituted an offence 
 within 30 Geo. 2, c. 24, s. 1, money 
 or goods must have been obtained 
 by a false pretence with an inten- 
 tion to defraud ; but the pretence 
 might have related to a future trans- 
 action. Mex V. Young, 1 Leach, C. 
 C. 505; 2 East, P. C. 82, 833; 3 T. 
 R. 98. 
 
 It is a false pretence if a carrier 
 obtains the carriage-money by pre- 
 tending to have delivered the goods 
 and lost the bailee's receipt for them. 
 Hex v. Airey, 2 East, P. C. 831 ; 2 
 East, 30 ; S. P., Hex v. Goleman, 2 
 East, P. C. 672. 
 
 Where an indictment charges a 
 false pretence of an existing fact 
 calculated to induce the confidence 
 which led to the prosecutor's part- 
 ing with his property, though mixed 
 up with false pretences as to the 
 prisoner's future conduct, it is suffi- 
 
 Digitized by Microsoft® 
 
WHAT ARE. 
 
 147 
 
 cient. Reg. v. Bates,Z Cox, C. C. 
 201- Piatt. 
 
 Where the false pretence is as to 
 the status of the party at the time, 
 or as to any collateral fact supposed 
 to be then existing, it will equally 
 support an indictment. Ih. 
 
 An indictment for obtaining mon- 
 ey by false pretences cannot be sus- 
 tained, if the prosecutor when he 
 parted with his money knew the re- 
 presentation to be false. Beg. v. 
 Mills, 7 Cox, C. C. 263 ; Dears. & 
 
 B. C. C. 205 ; 26 L. J., M. C. 79. 
 A false pretence must be the false 
 
 pretence of an existing fact, and if 
 the person to whom it is made is 
 defrauded by it, it makes no differ- 
 ence that he might have known 
 that the pretence was false, or that 
 it is not such a pretence as would 
 be likely to defraud a person of or- 
 dinary caution. Reg. v. Woolley, 3 
 
 C. & K. 98; 1 Den. C. C. 659; T. 
 & M. 279 ; 4 New Sess. Cas. 341 ; 
 14 Jur. 465; 19 L. J., M. C. 165; 4 
 Cox, C. C. 193. 
 
 Therefore, where A., the secretary 
 of a lodge of odd fellows, told B., a 
 member of the lodge, that he owed 
 the society 13s. 9rf., when in fact B. 
 only owed 2s. ^d., and A., by this 
 false pretence, obtained the money 
 of B : — Held, that this was an ob- 
 taining of money by false pretences. 
 Ih. 
 
 A fraudulent misrepresentation 
 of an existing matter of fact, accom- 
 panied by an executory promise to 
 do something at a future period, as 
 that the prisoner had bought cer- 
 tain skins, and would sell them to 
 the prosecutor, is a false pretence 
 within the statute, although it ap- 
 pears that the promise, as well as 
 such misrepresentation of fact, in- 
 duced the prosecutor to part with 
 the money. Reg. v. West, Dears. 
 & B. C. C. 575 ; 4 Jur., N. S. 514 ; 
 27 L. J., M. C. 227 ; 8 Cox, C. C. 12. 
 
 Obtaining a gift of money by 
 means of false statements, is ob- 
 taining money by false pretences. 
 Reg. V. Jones, T. & M. 270 ; 4 New 
 
 Digitized by Microsoft® 
 
 Sess. Cas. 353 ; 1 Den. C. C. 551 ; 3 
 C. & K. 346 ; 14 Jur. 633 ; 19 L. 
 J.,M. C. 162; 4Co-x, C. C. 198. 
 
 A begging letter, making false 
 representations as to the condition 
 and character of the writer, by 
 means of which money is obtained, 
 is a fa,lse pretence. lb. 
 
 The crime of obtaining goods 
 by false pretences is complete, al- 
 though at the time when the prison- 
 er made the pretence, and obtained 
 the goods, he intended to pay for 
 them when it should be in his power 
 to do so. Reg. v. Naylor, 10 Cox, 
 C. C. 151 ; 1 L. R., C. C. 4 ; 11 
 Jur., N. S. 910 ; 35 L. J., M. C. 61 ; 
 14 W. R. 58 ; 13 L. T., N. S. 381. 
 
 Where a prisoner, being employ- 
 ed at an hospital, wrote to the prose- 
 cutor, as manager, for a small quan- 
 tity of linen, not saying it was for 
 the hospital, and in point of fact he 
 was not manager, and the goods 
 were really ordered for himself, but 
 not sent, on an indictment for an 
 attempt to obtain them, the question 
 left to the jury was, whether he or- 
 dered the goods as for and on behalf 
 of the hospital or in his own name, 
 there being no evidence of an in- 
 tention to pay cash, but evidence of 
 its absence. Reg. v. Franklin, 4 F. 
 & F. 94— Willes. 
 
 If a party obtains money by a 
 false pretence, knowing it to be 
 false at the time, it is no answer to 
 shew that the party from whom he 
 obtained the money laid a plan to 
 entrap him into the commission of 
 the offence. Reg. v. Ady, 7 C. & P. 
 140— Vaughan and Patteson. 
 
 A person who makes a false pre- 
 tence of having a power to do some- 
 thing, whether the power is physic- 
 al, moral or supernatural, for the 
 purpose of obtaining money or 
 goods, is indictable for false pre- 
 tences. Reg. V. Cfiles, L. & C. 602 ; 
 10 Cox, C. C. 44; 11 Jur., N. S. 
 119; 34L. J., M. C. 51; 13 W. R. 
 827; IIL.T., N.S. 643. 
 
 It is not necessary that the false 
 pretence should be made in express 
 
148 
 
 FALSE PRETENCES AND CHEATS. 
 
 ■words, if it can be inferred from all 
 the circumstances attending the ob- 
 taining of the property. lb. 
 
 B. was indicted for having falsely 
 pretended that he was Mr. H., who 
 had cured Mrs. C. at the Oxford 
 Infirmary, and thereby obtainmg 
 5s. with intent to defraud 6. P. B. 
 made the pretence, and thereby in- 
 duced the prosecutor to buy, at the 
 expense of 5s., a bottle containing 
 something which he said would 
 cure the eye of the prosecutor's 
 child. It was proved that B. was 
 not Mr. H : — Held that this was a 
 false pretence. Heg. v. Bloomjield, 
 Car. & M. 537 ; 6 Jur. 224— Cress- 
 well. 
 
 If a person at Oxford, who is not 
 a member of the University, goes to 
 a shop for the purpose of fraud, 
 wearing a commoner's cap and 
 gown, and obtains goods ; this ap- 
 pearing in a caj) and gown is a suf- 
 ficient false pretence to satisfy the 
 statute, although nothing passes in 
 words. Rex v. Barnard, 7 C. & P. 
 784— Bolland. 
 
 A., by falsely representing that a 
 house and some shops had been 
 built upon certain land, obtained 
 from the prosecutor ari advance of 
 money. A. deposited the lease of 
 the land, signed an agreement to 
 execute a mortgage, and executed a 
 bond as security for the money : — 
 Held, that he was rightly convicted 
 of obtaining money by false pre- 
 tences. Meg. V. Burgon, Dears. & 
 B. C. 0.11; -2 Jur., N. S. 596 ; 25 
 L. J., M. C. 105 ; 7 Cox, C. C. 
 131. 
 
 Although to constitute the stat- 
 utable ofienee of obtaining money 
 by means of false pretences, the pre- 
 tence must be false at the time : 
 Semble, it need not necessarily be 
 of some alleged existing fact, ca- 
 pable of being disproved by positive 
 testimony, but may depend on the 
 bona fide intention and willingness 
 of the defendant at the time of en» 
 tering into a contract to perform it, 
 or to do some act at a future period. 
 
 Reg. v. Jones, -^ Cox, C. C. 467 — 
 Crompton. 
 
 A false pretence as to an existing, 
 essential fact will sustain an indict- 
 ment for obtaining money by false 
 pretences, although it is united with 
 false promises, which alone would 
 not have supported the conviction. 
 Reg. V. Jennison, L. & 0. 157 ; 9 
 Cox, C. C. 158 ; 8 Jur. K S. 442 ; 
 31 L. J., M. C. 146 ; 10 W. R. 488 ; 
 6 L. T., N. S. 256. . 
 
 The prosecutor lent lOZ. to the 
 prisoner on the false pretence that 
 he was going to pay his rent, and if 
 the prisoner had not told him that 
 he was going to pay his rent, the 
 prosecutor would not have lent the 
 money : — ^Held, that this was not a 
 false pretence of any existing fact, 
 to warrant a conviction. Reg. v. 
 Lee, 9 Cox, C. C. 304 ; L. & C. 
 309 ; 11 W. R. 761 ; 8 L. T., N. 
 S. 487. 
 
 A. was indicted for obtaining 
 goods by false pretences. He ob- 
 tained the goods from the prosecu- 
 tor by pretending that he wanted 
 them for S., whom he represented 
 as living at N., and being a person 
 to whom he would trust 1,000?., 
 and who went out twice a year to 
 New Orleans to take goods to his 
 sons. The jury found that all these 
 representations were false, and that 
 the prosecutor, believing that A. 
 was connected with S., and em- 
 ployed by him to obtain the goods, 
 contracted with A. and not with the 
 supposed S., and delivered the goods 
 to A. for himself, and not for S.: — 
 Held, that A. was rightly convicted. 
 Req. V. Archer, Dears. C. C. 449 ; 
 1 Jur., N. S. 479 ; 6 Cox, C. C. 
 615 ; 3 C. L. R. 623. 
 
 Money was obtained by the pris- 
 oner from an unmarried woman on 
 the false representations that he 
 was a single man, and that he 
 would furnish a house with the 
 money, and would then marry her : 
 — Held, that the false representa- 
 tion of an existing fact (that he 
 was not a single man) was sufficient 
 
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WHAT ARE. 
 
 149 
 
 to support a conviction for false 
 pretences, although the money was 
 obtained by that representation, 
 united with the promise to furnish 
 a house and then marry her. JReg. 
 V. Jennison, 9 Cox, C. C. 158 ; L. 
 & C. 157 ; 31 L. J., M. C. 146. 
 
 An attorney, who had appeared 
 for a person who was fined 2,1. on a 
 summary conviction, called on a 
 person's wife and told her that he 
 had been with another person, who 
 was fined 21. for a like offence to 
 Mr. B. and Mr. L., and that he had 
 prevailed upon Mr. B. and Mr. L. 
 to take II. instead of 21., and that 
 if she would give him 11. he wouid 
 go and do the same for her. She 
 gave the attorney a sovereign, and 
 afterwards paid him for his trouble. 
 It was proved that the attorney 
 never applied to either Mr. B. or 
 Mr. L. respecting either of the fines, 
 and that both were afterwards paid 
 in full : — Held, that he was guilty 
 of obtaining money by false pre- 
 tences. Rex V. Asterley, 7 C. & 
 P. 191— Park. 
 
 A. owned B. a debt, of which B. 
 could not get payment. C, a serv- 
 ant of B., went to A.'s wife and 
 obtained two sacks of malt from 
 her, saying that B. had bought 
 them of A. C. knew this to be 
 false, but took the malt to B., his 
 master, to enable him to pay him- 
 self the debt :— Held, that if C. did 
 not intend to defraud A., but mere- 
 ly to put it into his master's power 
 to compel A. to pay him a just 
 debt, C. ought not to be convicted 
 of obtaining the malt by false pre- 
 tences. Rex V. Williams, 7 C. & 
 P. 354— Coleridge. 
 
 A defendant was tried upon an 
 indictment for obtaining money by 
 false pretences, in which it was al- 
 leged that she had represented that 
 she kept a shop, and that the prose- 
 cutrix might go and live with her 
 till she got a situation. It was 
 proved that the defendant did not 
 keep a shop, and the prosecutrix 
 stated that she lent the defendant 
 
 the money because the latter had 
 said that she kept the shop, and 
 that she, the prosecutrix, should 
 have the money when she got home 
 with her. The jury returned a 
 special verdict, finding the defend- 
 ant guilty of fraudulently obtain- 
 ing the money, the prosecutrix part- 
 ing with it under the belief that 
 the defendant kept a shop, and that . 
 the prosecutrix should have it when 
 she went home with her : — Held, 
 that the defendant was properly 
 convicted of obtaining money by 
 false pretences. Reg. v. Fry, Dears. 
 & B. C. C. 449 ; 4 Jur., K S. 266; 
 27 L. J., M. C. 68 ; 7 Cox, C. C. 
 394. 
 
 On a trial of an indictment which 
 charged the prisonei; with obtain- 
 ing a horse of the prosecutor by 
 falsely representing himself to be 
 the servant of Hardman, of Stick- 
 ley, the evidence was that the pris- 
 oner at first represented himself as 
 a servant of Hardman, of Stickley 
 Fai-m, but that afterwards, learn- 
 ing that the prosecutor had mis- 
 takingly supposed that he had said 
 he was the servant of Harding, late 
 of Benwell Lodge, he adopted that 
 view, and virtually said that he 
 was the servant of Harding, late of 
 Benwell Lodge, and now of Stick- 
 ley Farm. It was proved that the 
 prosecu-tor parted with his horse in 
 the belief that the prisoner was the 
 servant of Harding : — Held, that 
 the conviction could not be sup- 
 ported, as the real pretence that 
 ojaerated on the prosecutor's mind 
 was not alleged in the indictment. 
 Reg.Y. Bulmer, L. & C. 476; 9 
 Cox, C. C. 492 ; 10 Jur., K S. 684; 
 33 L. J., M. C. 171 ; 12 W. R. 887 ; 
 10 L. T., N. S. 580. 
 
 What amount <o.] — A conviction 
 for obtaining a chattel by false pre- 
 tences is good, although the chattel 
 is not in existence at the time the 
 pretence is made, provided the sub- 
 sequent delivery of the chattel is 
 directly connected with .the false 
 
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150 
 
 FALSE PRETENCES AND CHEATS. 
 
 pretence. Whether or not there 
 is such a direct connexion is a 
 question for a jury. Reg. v. Ma/r- 
 ?m, 1L.R., C. C. 56; 36 L. J., M. 
 C. 20 ; 10 Cox, C. C. 383 ; 15 L. 
 T., N. S. 54; 15 W. R. 358. 
 
 The prisoner, by falsely pretend- 
 ing to Gr. that he was agent to a 
 steam laundry company, of which 
 some of the leading men in B. were 
 at the head, and that he was de- 
 sired by the company (which, he 
 subsequently admitted, was only 
 himself) to procure a van, induced 
 G. to make the van ; but, before it 
 was sent to the laundry premises, 
 countermanded it. G. nevertheless 
 delivered the van, which the pris- 
 oner returned to G., telling him 
 that he ought not to have sent it 
 after the countermand. G. said he 
 should not know what to do with 
 it, and that the prisoner must keep 
 it, upon'which he replied that, if he 
 did, G. must put in some boards for 
 the baskets of linen ; to which G. 
 assented, and the prisoner then 
 drove away' with the van. Upon 
 indictment for obtaining the van by 
 false pretences : — ^Held, that there 
 was evidence to go to the iury. 
 lb. ^ •' ^ 
 
 Hewers and putters in a colliery 
 had tokens differently marked,which 
 they placed on the tubs of coal 
 drawn up the pit, and which were 
 then taken off and put into a box, 
 and their wages calculated accord- 
 ing to the number of tokens sent 
 up by them. The putter fetched 
 the empty tub to the hewer, and 
 took it when full to the station to 
 be drawn up to the bank ; before 
 the tub was iilled he placed his 
 token on it, to denote the sum he 
 was entitled to for his labour in put- 
 ting and removing the tub to the 
 station, and the hewer put his token 
 also to denote the amount he was 
 entitled to for hewing the coal and 
 filling the tub. A hewer removed 
 the putter's token after the tub was 
 brought to him and substituted one 
 of his own, and then put an addi- 
 
 tional token of his own for hewing 
 and filling the tub. The tub was 
 then drawn up, and the two tokens 
 thrown into the box. The contents 
 of the box were then taken away 
 by the tokenraan, and the accounts 
 of the different workmen made up 
 according to the number of tokens 
 found with their initials on. In 
 that way the hewer obtained money 
 for hewing and filling two tubs of 
 coals instead of one only :— Held, 
 that this amounted to an indictable 
 false pretence. JReg. v. Hunter, 17 
 L. T., N. S. 321 ; 10 Cox, C. C. 
 642 ; 16 W. R. 342— C. C. R. 
 
 A postman falsely pretended that 
 the sum of 2s. was payable on a 
 post letter entrusted to him for de- 
 livery, whereas Is. only was pay- 
 able : — Held, that the offence was 
 complete when he made the pre- 
 tence, and therefore the absence of 
 any evidence to show positively 
 that he did not pay over the extra 
 Is. to the superior officer was quite 
 immaterial to his guilt or innocence. 
 Reg. V. Byrne, 10 Cox, C. C. 369. 
 
 A prisoner obtained a sum of 
 money from the prosecutor by pre- 
 tending that he carried on an ex- 
 tensive business as an auctioneer 
 and a house agent, and that he 
 wanted a clerk, and that the money 
 was to be deposited as security for 
 the prosecutor's honesty as such 
 clerk. The jury found that the 
 prisoner was not carrying on any 
 such business at all : — Held, that 
 this was an indictable false pre- 
 tence. Reg. V. Grab, 18 L. T., N. 
 S. -370 ; ] 6 W. R. 732 ; 11 Cox, C. 
 C. 85— C. C. R. 
 
 An indictment charged that the 
 prisoner was living separately from 
 her husband, and receiving an in- 
 come from him for her separate 
 maintenance under a deed of sepa- 
 ration, which stipulated that he 
 should not be liable for her debts ; 
 and that she falsely pretended to 
 U., a servant of W., that she was 
 living under the protection of her 
 husband, and was authorized to 
 
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WHAT ARE. 
 
 151 
 
 apply to W. for goods on the credit 
 of lier husband, and that he was 
 willing to pay for them ; and that 
 she wanted them to furnish a house 
 in his occupation. It was proved 
 that on the 4th of August she called 
 at W.'s shop, and on being served 
 by U., selected certain goods, and, 
 being asked for a deposit, said it 
 was a cash transaction, that her 
 husband would give a cheque as 
 soon as the goods were delivered. 
 The deed was proved, and it was 
 also proved that the annuity cove- 
 nanted to be paid by the husband 
 was duly paid ; that the house 
 which she gave as her address, and 
 which was found shut up after the 
 goods had been sent to it, had been 
 taken by her whilst in company 
 with a man with whom she had 
 been living as his wife from the 
 middle of July till the end of Au- 
 gust : — Held, that there was abund- 
 ant evidence to support a convic- 
 tion. Req. V. Davis^ 17 W. R. 
 127 ; 19 L. T., N. S. 325 ; 11 Cox, 
 C. C. 181— C. C. R. 
 
 On an indictment for obtaining 
 goods in a market by falsely pre- 
 tending that a room had been taken 
 at which to pay the market people 
 for their goods, the jury found that 
 the well-linown practice was for 
 buyers to engage a room at a pub- 
 lic house, and that the prisoner con- 
 veyed to the minds of the market 
 people that she had engaged such a 
 room, and that they parted with 
 their goods on such belief : — ^Held, 
 there being no evidence that the 
 prisoner knew of such a practice, 
 and the case being consistent with 
 a promise only on her part to en- 
 gage such a room and pay for the 
 goods there, a conviction could not 
 be sustained. Reg. v. Burrows, 20 
 L. T., N. S. 499 ; 17 W. R. 682 ; 
 11 Cox, C. C. 258— C. C. R. 
 
 The prosecutor lerft money to the 
 prisoner at interest, on the security 
 of a bill of sale on furniture, a 
 promissory note of the prisoner and 
 another person, and a declaration | 
 
 made by the prisoner that the fur- 
 niture was unencumbered. The 
 declaration was untrue at the time 
 it was handed to the prosecutor, 
 the prisoner having a few hours be- 
 fore given a bill of sale for the fur- 
 niture to another person, but not to 
 its full value : — Held, that there 
 was evidence in support of a charge 
 of obtaining money by false pre- 
 tences. Reg. V. Meahin, 11 Cox, 
 C. C. 270 ; 20 L. T., N. S. 544; 17 
 W. R. 683— C. C. R. 
 
 On an indictment for obtaining 
 money by false pretences, it ap- 
 peared that the prisoner, on engag- 
 ing an assistant from whom he re- 
 ceived a deposit, represented to him 
 that he was doing a good business, 
 and that he had sold a good busi- 
 ness for a certain large sum, where- 
 as the business was worthless, and 
 he had been bankrupt : — Held, that 
 the indictment could not be sus- 
 tained, upon either of the repre- 
 sentations. Reg. V. WiUiainson, 
 21 L. T., N". S. 444— Byles. 
 
 (b) By Means of False Orders. 
 
 B. was one of many persons em- 
 ployed whose wages were paid 
 weekly at a pay-table. On one 
 occasion, when B.'s wages were 
 due, the prisoner said to a little 
 boy, " I will give you a penny if 
 you will go and get B.'s money." 
 The boy innocently went to the 
 pay-table, and said to the treasurer, 
 " I am come for B.'s money ;" and 
 B.'s wages were given to him. He 
 took the money to the prisoner, 
 who was waiting outside, and who 
 gave the boy the promised penny : 
 — Held, that the prisoner could not 
 be convicted on the charge of ob- 
 taining the money from the treas- 
 urer by falsely pretending to the 
 treasurer that he, the prisoner, had 
 authority from B. to receive his 
 money, or of obtaining it from the 
 treasurer and the boy, by falsely 
 pretending to the boy that he had 
 such authority, or of obtaining it 
 from the boy by the like false pre- 
 
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152 
 
 FALSE PRETENCES AND CHEATS. 
 
 tence to the boy ; but that he might 
 have beea convicted on a count 
 charging him with obtaining it 
 from the treasurer, by falsely pre- 
 tending to the treasurer that the 
 boy had the authority from B. to 
 receive the amount. Reg. v. Butch- 
 er, Bell, C. C. 6 ; 4 Jur., N. S. 
 1155 ; 28 L. J., M. C. 14 ; 7 W. R. 
 38 ; 32 L. T. 110 ; 8 Cox, C. C. 77. 
 
 A surveyor of highways, having 
 authority to order gravel for the 
 roads, ordering gravel as usual, 
 and applying it for his own use, is 
 not liable to a charge of obtaining 
 it by false pretences ; nor for lar- 
 ceny, unless it appears that he did 
 not mean to pay for it. Reg. v. 
 Richardson, 1 F. & F. 488— Wight- 
 man. 
 
 An indictment that B. obtained 
 twentj' yards of carpet by falsely 
 pretending that a certain person 
 who lived in a large house down 
 the street, and had had a daughter 
 married some time back, had been 
 at him about some carpet, and had 
 asked him to procure a piece of 
 carpet, whereas no such person had 
 been at him about any carpet, or 
 had any such person asked him to 
 procure any piece of carpet. The 
 evidence was that B. obtained 
 twenty yards of carpet by stating 
 to the prosecutor, who was a shop- 
 keeper in a village, that he wanted 
 some carpeting for a family living 
 in a large house in the village who 
 had had a daughter lately married ; 
 that B. afterwards sold the carpet- 
 ing so obtained to two different 
 persons, and a lady was called, 
 who lived in the village, whose 
 daughter was married about a year 
 previously, and who stated that she 
 had not sent B. to the prosecutor's 
 shop for the carpet : — Held, that 
 there was a sufficient false pretence 
 alleged and proved, and that it was 
 sufficiently negatived by the evi- 
 dence. Reg. V. Riirnsides, Bell, C. 
 C. 282 ; 8 Cox, C. C. 370 ; 30 L. 
 J., M. C. 42; 9 W. R. 37: 3 L. T., 
 N. S. 311. 
 
 (c) By Means of JFah-e Accounts. 
 
 A workman, employed by cloth- 
 iers, was to keep an account of the 
 number of shearman employed, and 
 the amount of their earnings and 
 wages, which he was weekly to de- 
 liver to a clerk, in writing, who 
 paid him the amount ; he delivered 
 in a false account, charging for 
 more work, and of other men, than 
 was actually done, by which he 
 obtained a larger sum than was 
 actually due : — ^Held, an obtaining 
 money under false pretences, with- 
 in 30 Geo. 2, c. 24, because without 
 the false pretence he would not 
 have obtained the credit, and was 
 not like a case of money paid gen- 
 erally on account. Rex v. Mitch- 
 ell, 2 East, P. C. 830. 
 
 A., the servant of B., rendered 
 an account to B. of lAl. Is. 2d., as 
 due from A. to his workmen, and 
 
 B. gave A. a cheque for the amount. 
 All that sum was so due except 7s., 
 which A. kept, when he got the 
 cheque cashed, and paid the work- 
 men the residue. In an indictment 
 it was charged that by this false 
 pretence, A. obtained the cheque 
 from B., with intent to defraud him 
 of the same. It was objected, that 
 the intent was only to defraud B. 
 of a part of the proceeds of the 
 cheque. A. was convicted, and the 
 judges held the conviction right, 
 and that the evidence supported the 
 count. Reg. v. Leonai'd, 2 C. & 
 K. 514; IDen. C. C. 304. 
 
 A servant of A. applied to B. 
 for payment of 17s. due from B. to 
 A. B. refused to pay it without 
 A.'s receipt. The servant went 
 away, and returned with this docu- 
 ment, whereupon B. paid the debt : 
 — Held, a question for the jury, 
 whether the servant tendered the 
 receipt as the handwriting of A., 
 which would make him liable on 
 this indictment, or as his own, 
 which would make his act a false 
 pretence. Reg. v. Inder, 1 Den. 
 
 C. C. 325. 
 
 It was the prisoner's duty, as 
 
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FALSE ACCOUNTS. 
 
 153 
 
 bailiif to the prosecutor, to pay I 
 and receive monies. Upon an ac- 
 count rendered of such payments 
 and receipts, it appeared he had 
 charged his master with five pay- 
 ments of 11. 8s. instead of 11. 4s., 
 the sums he had actually paid. 
 There was also a similar over- 
 charge of two other amounts : — 
 Held, that the prisoner was wrong- 
 ly convicted of larceny, the offence, 
 if any, being that of obtaining mon- 
 ey by false pretences. Meg. v 
 Gheen, Dears. C. C. 323 ; 18 Jur. 
 158. 
 
 It was the duty of the prisoner, 
 who was a servant of the prose- 
 cutors, in the absence of their chief 
 clerk, to purchase and pay for, on 
 behalf of his masters, any kitchen 
 stuff brought to their premises for 
 sale. On one occasion he falsely 
 stated to the chief clerk that he 
 had paid 2s. od. for kitchen stuff, 
 which he had bought for his mas- 
 ters, and demanded to be paid for 
 it. The clerk on this paid him 2s. 
 3d. out of the money which his 
 master had furnished him with to 
 pay for the kitchen stuffi The pris- 
 oner applied the money to his own 
 use :— Held, that as the clerk had 
 delivered the money to the prisoner 
 with the intention of parting with 
 it altogether, the prisoner was not 
 liable to an indictment for stealing 
 the money, but that he might have 
 been indicted for obtaining by false 
 pretences. Seg. v. Barnes, T. & 
 M. 387 ; 2 Den. C. C. 59 ; 14 Jur. 
 1123; 20 L. J., M. C. 34. 
 
 It was the duty of a servant to 
 ascertain daily the amount of dock 
 dues payable by his master, and, 
 having ascertained it, to apply to 
 his master's cashier for the amount, 
 and then to pay it in discharge of 
 the dues. On one occasion, by 
 representing falsely to the cashier 
 that the amount was larger than it 
 really was, as he well knew, he ob- 
 tained from the cashier the sum he 
 stated it to be, and then paid the 
 real amount due, and appropriated 
 
 the difference : — Held, that his of- 
 fence was not larceny, but obtain- 
 ing money by false pretences. Reg. 
 V. Thompsmi, L. & C, C. C, 233 ; 
 9 Cox, C. C. 222; 32 L. J., M. C. 
 57 ; 8 Jur., N. S. 1162 ; 11 W. R. 
 41 ; 7 L. T., ]sr. S. 393. 
 
 By Means of False Accounts.] — 
 An indictment alleged that the pris- 
 oner obtained a coat by falsely 
 pretending that a bill of parcels 
 of a coat, value 14s. &d., of 
 which 4s. Qd. had been paid on 
 account, and that 10s. only was 
 due, was a bill of parcels of an- 
 other coat of the value of 22s. The 
 evidence was that the prisoner's 
 wife had selected the 14s. 6c?. coat 
 for him, subject to its fitting him, 
 and had paid 4s. %d. on account, for 
 which she received a bill of parcels 
 giving credit for that amount. On 
 trying on the coat it was found to 
 be too small, and the prisoner was 
 then measured for one to cost 22s. 
 When that was made it was tried 
 on by the prosecutor, who was not 
 privy to the fonner part of the 
 transaction. The prisoner when the 
 coat was given to him handed the 
 bill of parcels for the 14s. %d. and 
 10s., saying, " There is 10s. to pay." 
 The bill was receipted, and the pris- 
 oner took the 22s. coat away with 
 him. The prosecutor stated that 
 believing the bill of parcels to refer 
 to the 22s. coat, he parted with that 
 coat on payment of 10s., otherwise 
 he should not have done so : — Held, 
 that there was evidence to support 
 a conviction. Reg. v. Steels, 17 L. 
 T., K S. 666; 16 W. R. 341; 11 
 Cox, C. C. 5— C. C. R. 
 
 (d) By Means of Contracts. 
 
 Knowingly exposing to sale and 
 selling wrought gold under the ster- 
 ling alloy, as and for gold of the 
 true standard weight, which is in- 
 dictable in a goldsmith, is a private 
 imposition only in a common per- 
 son. Rex V. Bower, Cowp. 323. 
 
 Delivering less beer in a cask 
 
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154 
 
 FALSE PRETENCES AND CHEATS. 
 
 than contracted for,, as the due 
 quantity is not an indictable of- 
 fence. Rex V. Wheatley, 1 W. Bl. 
 273; 2 Burr. 1129. 
 
 Nor is delivering less oats than 
 the quantity contracted for as the 
 due quantity. Hex v. Dunnage, 2 
 Burr. 1130. 
 
 A false pretence knowingly made 
 to obtain money is indictable, 
 though the money is obtained by 
 means of a contract whioh the 
 prosecutor was induced to make by 
 the false pretence of the prisoner. 
 Heg. V. AbboU, 1 Den. C. C. 273 ; 
 2 C. &. K. 630 ; 2 Cox, C. C. 430 ; 
 S. P., Reg. V. Barh, 1 Den. C. C. 
 276; Reg. v. Kenrick, D. & M. 
 208 ; 5 Q. B. 49. 
 
 A person, who by falsely repre- 
 senting himself to fill a particular 
 character, induces another to enter 
 into a contract with him for board 
 and lodging, and is supplied accord- 
 ingly with various articles of food, 
 cannot be convicted of obtaining 
 goods by false pretences, the ob- 
 taining of the goods being too re- 
 motely connected with the false 
 representation. Reg. v. Gardner, 
 7 Cox, C. C. 136 ; 2 Jur., N. S. 
 598 ; 25 L. J., M. C. 100. 
 
 A carrier, having ordered a cask 
 of ale, said, after he had possession 
 of it, "This is for W.":— Held, 
 that an indictment for obtaining it 
 by falsely pretending that he was 
 sent for it by W. could not be sus- 
 tained. Reg. V. Brooks, 1 F. & F. 
 502 — Wightman. 
 
 The prisoner having pretended to 
 sell goods to A. which he had pre- 
 tended to buy for him from B., and 
 then the goods having been sent by 
 B. to A., having got the money 
 from A. : — Held, not indictable for 
 obtaining goods from B. by false 
 pretences. Reg. v. Martin, 1 F. & 
 F. 501— Wightman. 
 
 If one professes to sell an interest 
 in property, and receives the pur- 
 chase-money, the vendee taking the 
 usual covenant for title ; and it 
 turns out that the vendor has in 
 
 fact previously sold his interest in 
 the property to a third person ; this 
 is not sufficient to support an in- 
 dictment for obtaining money by 
 fake pretences. Rex v. Godring- 
 ton, 1 C. & P. 661— Littledale. 
 
 When a contract has been en- 
 tered into by reason of false repre- 
 sentations, and goods or money ob- 
 tained iander the contract, it is too 
 remote to charge the obtaining of 
 the goods or money by the false 
 pretences. Reg. v. Bryan, 2 P. & 
 F. 567— Hill. 
 
 The prisoner, by false and fraud- 
 ulent representations made to the 
 prosecutor, as to his business, cus- 
 tomers, and profits, induced the 
 prosecutor to enter into a partner- 
 ship with him, and to advance 500^., 
 as part of the capital of the concern ; 
 and the prosecutor, after such ad- 
 vance, recognized and acted upon 
 such partnership: — Held, that this 
 was not an obtaining of money by 
 false pretences. Reg. v. "Watson, 
 Dears. & B. C. C. 348 ; 4 Jur., N. 
 S. 14; 27 L. J., M. C. 18; 7 Cox, 
 C. C. 364. 
 
 The prisoner entered into partner- 
 ship with the prosecutors, and it 
 was subsequently agreed that he 
 should travel about the country to 
 obtain orders, and have a commis- 
 sion upon all orders he might re- 
 ceive, such commission to be paid 
 to him as soon as he received the 
 orders, and to be payable out of the 
 capital funds of the partnership be- 
 fore dividing any profits. He false- 
 ly represented to his partners that 
 he had obtained a certain order, and 
 in consequence was paid his com- 
 mission thereon: — Held, that this 
 was a mere matter of account be- 
 tween the partners, and that the 
 prisoner was, therefore, not guilty 
 of obtaining money by false pre- 
 tences. Reg. V. Evans, 9 Cox, C. 
 C.238; L. & C. 252; 9 Jur., N. 
 S. 184 ; 32 L. J., M. C. 38 ; 11 W. 
 R. 125 ; 7 L. T., N. S. 507. 
 
 A prisoner was indicted for ob- 
 taining by false pretences a spring- 
 
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QUALITY OF ARTICLES. 
 
 155 
 
 van. By false pretences, he induced 
 the prosecutor to enter mto a con- 
 tract to build and deliver a van for 
 a certain sum of money, and the 
 prosecutor on the faith of those 
 pretences built and delivered the 
 van in pursuance of the original 
 order, although the prisoner counter- 
 manded the order after the building 
 and before the delivery : — Held, 
 that, to bring the case within the 
 statute, it is not necessary that 
 the chattel should be in existence 
 when the false pretence is made, 
 but tliat the obtaining is within the 
 statute if the pretence is a continu- 
 ing one, so that the chattel is made 
 and delivered in pursuance of the 
 pretence, that the question whether 
 the pretence is or is not such a con- 
 tinuing one, is one of fact for the 
 jury, and that here there was evi- 
 dence from which the jury might 
 infer that it was such a continuing 
 one. Meg. v. Martin, 36 L. J., M. 
 C. 20; 1 L. R., C. C. 56; 10 Cox, 
 C. C. 383. 
 
 (e) As to the Qvality of Articles of 
 Merchandise. 
 
 A simple misrepresentation of the 
 quality of goods is not a false pre- 
 tence, provided the goods are in 
 specie that which they are represent- 
 ed to be. Meg. v. Sryan, Dears. & 
 B. C. C. 265 ; 3 Jur., N. S. 620 ; 
 26 L. J., M. C. 84 ; 7 Cox, C. C. 
 313. 
 
 For the purpose of procuring 
 advances of money by way of 
 pledge, a party produced spoons to 
 the • prosecutors, who were pawn- 
 brokers, and falsely and fraudulent- 
 ly stated that " they were of the 
 best quality ; that they were equal 
 to Elkington's A ; that the founda- 
 tion was of the best material ; and 
 that they had as much silver on 
 them as Elkington's A" : — Held, 
 that the representations being merely 
 as to the quality of the articles, 
 were not false pretences within the 
 statute, as the articles delivered to 
 the pawnbrokers were the same in ' 
 
 specie as he tad professed them to 
 be, though of inferior quality to 
 what he had stated. Ih. 
 
 A. falsely pretended to a pawn- 
 broker that a chain was silver. 
 The pawnbroker lent A. 10s. on the 
 chain, without placing any reliance 
 upon the statement of A., but re- 
 lying on his own examination and 
 test. The chain was made of a 
 composition worth about one far- 
 tliing an ounce : — Held, that he was 
 properly convicted of attempting to 
 obtain money by false pretences, 
 the statement being a false pretence 
 within the statute. Meg. v. Moe- 
 huck, Dears. & B. C. C. 24 ; 2 Jur., 
 N. S. 597 ; 25 L. J., M. C. 101 ; 7 
 Cox, C. C. 126. 
 
 A wilful misrepresentation of a 
 definite fact with intent to defraud, 
 cognisable by the senses — as where 
 a seller represents the quantity of 
 coals to be fourteen cwt., whereas 
 it is in fact only eight cwt., but so 
 packed as to look more ; or where 
 the seller, by manosuvring, contrives 
 to pass oif tasters of cheese as if ex- 
 tracted from the cheese offered for 
 sale, whereas it is not — is a false 
 pretence. Meg. v. Goss, Bell, C. C. 
 208 ; 8 Cox, C. C. 264 ; 6 Jur., N. 
 S. 178 ; 29 L. J., M. C. 86 ; 8 W. 
 R. 193; 1 L. T., N. S. 337. 
 
 On the trial an indictment for 
 false pretences, it was proved that 
 the prisoner offered a chain in pledge 
 to a pawnbroker, and required mo- 
 ney to be advanced upon it, repre- 
 senting that it was gold. On being 
 tested, it turned out to be a com- 
 pound of brass, silver, and gold, 
 but the gold was very minute in 
 quantity : — Held, not a false pre- 
 tence. Meg. V. Lee, 8 Cox, C. C. 
 233-Chambers, C. S. 
 
 B. was in the habit of selling 
 baking powders, wrapped in printed 
 wrappers, entitled " B.'s JSaking 
 Powders," and having his printed 
 signature at the end. The prisoner 
 got printed a quantity of wrappers 
 in imitation of those of B., only 
 leaving out B.'s signature, and sold 
 
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156 
 
 FALSE PRETENCES AND CHEATS. 
 
 spurious powders wrapped up in 
 these labels as B.'s powders : Held, 
 that the prisoner was not guilty of 
 forging the wrappers, or uttering 
 forged wrappers, though he might 
 be indictable for the fraud, on a 
 charge of obtaining money by false 
 pretences. Reg. v. Smith, Dears. 
 & B. C. C. 566 ; 4 Jur., N. S. 1003 ; 
 27 L. J., M. C. 225. 
 
 An indictment charged that the 
 defendant knowing and falsely pre- 
 tended that a horse was sound, and 
 that he himself was a farmer, at O., 
 negativing both pretences in the 
 usual way. The defendant was 
 convicted, but a case reserved^in 
 which, after stating that the various 
 allegations in the indictment were 
 proved, and that the defence was 
 that this was a case of giving a false 
 warranty, and therefore not indict- 
 able, the question was put, whether 
 the conviction could be sustained. 
 The court having directed an amend- 
 ment, the facts proved were set out 
 more specifically ; but it was not 
 stated as a fact that the defendant 
 knew the horse to be unsound, 
 though evidence was stated fl-om 
 which that inference might be 
 drawn ; nor was it stated what 
 direction had been given to the 
 jury : — ^Held, that, as the case was 
 framed, the conviction must be 
 quashed ; as the court, not know- 
 ing what direction had been given, 
 could not answer the question put 
 in the affirmative ; and as it was 
 consistent with the case that the 
 jury might have been told that 
 even if the defendant did not know 
 that the horse was unsound, he 
 might be convicted upon the other 
 false pretence alone. Reg. v. Keigh- 
 ley, Dears. & B. C. C. 145 ; 7 Cox, 
 C. C. 217. 
 
 A man went into a pawnbroker's 
 shop in the middle of the day, and 
 laid down eleven thimbles on the 
 counter, saying, " I want 5s. on 
 them" ; the pawnbroker's assistant 
 asked the man if they were silver, 
 and he said they were. The assist- 
 
 ant tested them, and found they 
 were not silver, and in consequence 
 did not give the man any money, 
 but sent for a policeman, and gave 
 him into his custody : — ^Held, that 
 the conduct of the man who pre- 
 sented the thimbles amounted to 
 an attempt to commit the statutable 
 misdemeanor of .obtaining money 
 under' false pretences, and by con- 
 sequence that if the money had 
 been obtained that statutable offence 
 would have been complete. Reg. 
 V. Ball, Car & M. 249— Jlirehouse, 
 C. S., after consulting some of the 
 judges. 
 
 As to the Quality of Articles of 
 Merchandise.^ — A false representa- 
 tion that a stamp on a watch was 
 the hall mark of the Goldsmiths' 
 Company, and that the number IS, 
 part thereof, indicated that the 
 watch was made of eighteen-carat 
 gold, is an indictable offence, and 
 is not the less so because accompa- 
 ilied by a representation that the 
 watch was a gold one, and some 
 gold was proved to have been con- 
 tained in its composition. Reg. v. 
 Stiter, 17 L. T., N. S. 177 ; 16 W. 
 R. 141 ; 10 Cox, C. C. 577— C. C. R. 
 
 L. and W. induced the prose- 
 cutor to buy certain plated goods 
 at an auction, at which L. was act- 
 ing as auctioneer, for 11., on the rep- 
 resentation that they were the "best 
 silver plate, lined with gold, and 
 worth 20Z. ; the foundation of the 
 goods was iSritannia metal, instead 
 of nickel, as in the best goods, 
 covered with a transparent film of 
 silver, and they were worth only 
 about 30s. : — Held, that there was 
 no false pretence, and that ari agree- 
 ment between two persons to dis- 
 pose of these goods in the way they 
 were disposed of was not a conspir- 
 acy. Reg. V. Levine, 10 Cox, C. C. 
 374— Chambers, C. S. 
 
 (f) As to the Quantity or Weight 
 of Articles of Merchandise. 
 The defendant had contracted 
 
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QUANTITY OR WEIGHT. 
 
 157 
 
 with the guardians of a poor law 
 union to deliver loaves of a speci- 
 fied weight to any poor persons 
 bringing a ticket from the relieving 
 officer. The tickets were to be 
 returned by the defendant at the 
 end of each week, with a statement 
 of the number of tickets sent back, 
 whereupon he would be credited 
 for the amount, and the money 
 would be paid at the time stipu- 
 lated in the contract. The defend- 
 ant delivered to certain poor people 
 who brought tickets loaves of less 
 than the specified weight, returned 
 the tickets with a note of the num- 
 ber sent, and obtained credit in 
 account for the loaves so delivered, 
 but before t|je time for payment 
 had arrived the fraud was discover- 
 ed : — Held, that the delivery of a 
 less quantity of bread than that 
 contracted for was a mere private 
 fraud, no false weights or tokens 
 having been used, and therefore 
 not an indictable offence : that the 
 defendant was properly convicted 
 of attempting to obtain money, for 
 although he had only obtained 
 credit in account, and could not, 
 therefore, have been convicted of 
 the offence of actually obtaining 
 money by false pretences, yet he 
 had done all that was depending 
 on himself towards the payment of 
 the money, and was therefore guilty 
 of the attempt : and that this was 
 a case within 7 & 8 Geo. 4, c. 29, s. 
 53, because it was an attempt to 
 obtain money by a false and fraud- 
 ulent representation of an ante- 
 cedent fact : it was not a mere sale 
 of goods by a false pretence of their 
 weight. Meg. v. Eagleton, 1 Jur., 
 ]Sr. S. 940; 24 L. J., M. C. 158; 
 Dears. C. C. 515 ; 6 Cox, C. C. 559. 
 The defendant agreed with the 
 prosecutrix to sell and deliver to 
 her a load of coals, at a certain 
 price per cwt. He accordingly de- 
 livered a quantity of coals, to his 
 knowledge weighing 14 cwt. He, 
 however, falsely and fraudulently 
 represented that the quantity -he 
 
 had delivered weighed 18 cwt., and 
 thereby obtained the price of 18 
 cwt. : — Held, that he was properly 
 convicted of the offence of obtaining 
 money by false pretences. Beg. v. 
 Sherwood, Dears. & B. C. C. 251 ; 
 3 Jur., K S. 547 ; 26 L. J., M. G. 
 217. 
 
 The defendant represented to the 
 prosecutor that he had done a cer- 
 tain quantity of work, and claimed 
 a certain sum as due to him in re- 
 spect of such work. The prose- 
 cutor paid him the amount claimed, 
 although he knew that the repre- 
 sentation was untrue : — Held, that 
 this was not an obtaining money by 
 means of false pretences. Reg. v. 
 Mills, Dears. & B. C. C. 205 ; 3 
 Jur., IST. S. 447 ; 26 L. J., M. C. 79. 
 
 A prisoner was convicted on an 
 indictment for obtaining money by 
 false pretences. The prosecutors 
 bought of the jDrisoner and paid him 
 for a quantity of coal, upon a false 
 representation by him that there 
 were 14 cwt., whereas, in fact, there 
 were only 8 cwt., but so packed in 
 the cart in which they were as to 
 have the appearance of a larger 
 quantity : — Held, that the false re- 
 presentation as to the quantity of 
 the coal was an indictable false 
 pretence, and that the conviction 
 was right. Reg. v. Ragg, Bell, C. 
 C. 215; 8 Cox, C. C. 263 ; 6 Jur., 
 K S. 178 ; 29 L. J., M. C. 86 ; 8 
 W. R. 193 ; 1 L. T., JSr. S. 337. 
 
 If a man is selUng an article by 
 weight, and falsely represents the 
 weight to be greater than it is, 
 and thereby obtains payment for a 
 quantity greater than that delivered, 
 he is indictable for obtaining money 
 by false pretences. Secus, if he is 
 selling the article for a lump sum, 
 and merely makes the false repre- 
 sentation as to the weight in order 
 to induce the purchaser to conclude 
 the bargain. Reg. v. Ridgway, 3 
 F. & F. 838— Bramwell. 
 
 A false affirmation of the weight 
 of an article sold by weight, with 
 intent to defraud, is indictable as a 
 
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158 
 
 FALSE PRETENCES AND CHEATS. 
 
 false pretence. Reg. v. Lee, L. & 
 C. 418 ; 9 Cox, C. G. 460 ; 32 L. J., 
 M. C. 129; 12W. R. 750; 10 L. 
 T., N. S. 348. 
 
 An indictment charged, that H. 
 R. having in his possession a certain 
 weight of 28 lbs., did falsely pre- 
 tend to C. that a quantity of coals 
 whicli he delivered to C. weighed 
 16 cwt. (meaning 1792 lbs. weight), 
 and were worth 11., and that the 
 weight was 56 lbs. ; by means of 
 which he obtained a sovereign from 
 C, with intent to defraud him of 
 part thereof, to Avit, 10s. ; whereas 
 the coals did not weigh 1792 lbs., 
 and were not worth 11. ; and where- 
 as the weight was not 56 lbs. ; and 
 whereas the coals were of the weight 
 of 896 lbs. only, and were not worth 
 more than 10s. ; and whereas the 
 weight was of 28 lbs. only. It was 
 objected that all the pretences, ex- 
 cept that respecting the weight, 
 were false affirmations, and that, as 
 to the weight, there was no allega- 
 tion to connect the sale of the coals 
 A^ath the use of the weight. The 
 defendant was convicted, and the 
 conviction was held to be wrong. 
 Eexv. Heed, 7 C. & P. 848. 
 
 (g) Ji}/ Promises of Marriage. 
 
 An indictment will lie for fraud- 
 ulently obtaining goods under, a 
 pretence of a treaty of marriage. 
 Anon. Loift, 146. 
 
 The prisoner paid his addresses 
 to the prosecutrix, and obtained a 
 promise of marriage from her, which 
 promise she afterwards refused to 
 ratify. He then Jhreatened her 
 with an action, and by this means 
 obtained money from her. During 
 the whole of the transactions the 
 prisoner had a wife. On an indict- 
 ment against him for obtaining mo- 
 ney under false pretences, the pre- 
 tences laid were, first, that he was 
 unmarried; and secondly, that he 
 was entitled to bring and maintain 
 his action against her for a breach 
 of promise of marriage : — Held, per 
 Lord Denman, C. J., and Maule, 
 
 J., that the fact of the prisoner 
 paying his addresses was sufficient 
 evidence for the jury on which they 
 might find the first pretence, that 
 he was a single man and in a con- 
 dition to marry ; and, per Maule, 
 J., that there was sufficient evidence 
 on which to find the falseness of the 
 other pretence, that he was entitled 
 to maintain his action for breach of 
 promise of marriage ; and that such 
 latter false pretence was a suffi.cient 
 false pretence within the statute. 
 Reg. v. Oopeland, Car. & M. 516. 
 
 An indictment for obtaining mo- 
 ney from H. under the false pre- 
 tence that the prisoner intended to 
 marry H., and wanted the money 
 to pay for a weddii^-suit he had 
 purchased, is not sufficient to sus- 
 tain a conviction. Reg. v. John- 
 ston, 2 M. C. C. 254. 
 
 A., obtaining money from the 
 prosecutrix by falsely pretending 
 that he was unmarried, that he 
 would furnish a house with the 
 nloney, and would then marry her, 
 is properly convicted of obtaining 
 money by false pretences. Reg. v. 
 Jennison, 9 Cox, C. C. 158 ; 8 Jur., 
 N. S. 442 ; L. & C. 157 ; 31 L. J., 
 M. C. 146; 10 W. R. 488 ; 6 L. T., 
 N. S. 256. 
 
 (h) By means of Cheques, BUls of 
 Exchange or Promissory Notes. 
 A person, who under a mere false 
 pretence of purchasing lottery tickets, 
 bargains with the holder of them, 
 and obtains the delivery of them 
 by giving a draft on a banker, with 
 whom he had no cash, for the 
 amount of them, is not indictable 
 for a fraud at common law ; for, in 
 order to constitute this offence, the 
 property must be obtained either 
 by conspiracy, or by means of a 
 false token as well as a false pre- 
 tence, and not, as in this case, by a 
 mere false assertion, or a bare naked 
 lie. Rex v. Lara, 2 Leach, C. C. 
 652 ; 2 East, P. C. 819, 827 ; 6 T. 
 R. 565. 
 
 Obtaining goods by means of a 
 
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BY MEANS OF CHEQUES, ETC. 
 
 159 
 
 cheque wbich the party knows will 
 not be paid, is an indictable oflEence. 
 Rex V. Jackson, 3 Camp. 370 — 
 Bayley. 
 
 A. was charged with falsely pre- 
 tending that a post-dated cheqvie, 
 drawn by himself, was a good and 
 genuine order for 25Z., and of the 
 value of 2bl., by means of which 
 he obtained a watch and a chain. 
 It was found by the jury that, be- 
 fore the completion of the sale, and 
 the delivery of the watch by the 
 prosecutor to the prisoner, the pris- 
 oner represented to the prosecutor 
 that he had an account with the 
 bankers on whom the cheque was 
 drawn, and that he had a right to 
 draw the cheque, though he post- 
 poned the date for his own conve- 
 nience, all which was false ; and 
 that he represented that the cheque 
 would be paid on or after the day 
 of the date, but that he had no 
 reasonable ground to believe that it 
 would be paid, or that he could 
 provide funds to pay it. The pris- 
 oner was convicted, and the judges 
 held the conviction right. Rex v. 
 Parker, 7 C. & P. 825 ; 2 M. C. 
 C. 1. 
 
 Obtaining credit in account from 
 the party's own banker, by drawing 
 a bill of exchange on a person on 
 whom the partyhas no right to draw, 
 and which has no chance of being 
 paid, is not a false pretence within 
 7 & 8 Geo. 4, c. 29, s. 53, though 
 the banker pays money for him in 
 consequence to an extent that he 
 would not otherwise have done. 
 Bex V. WaveU, 1 M. C. C. 224. 
 
 If a person, by false pretences, ob- 
 tains a check on a banker on un- 
 stamped paper, payable to D. F. J., 
 and not payable to bearer, it is not 
 an obtaining a valuable security by 
 false pretences. Rex v. Totes, Car. 
 C. L. 333 ; 1 M. C. C. 170. But see 
 now 21 & 22 Vict. c. 20 ; 23 & 24 
 Vict. c. lis, s. 18, and 17 & 18 
 Vict. c. 83. s. 27. 
 
 But obtaining, as a loan, from the 
 drawer of a bill accepted by the 
 
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 prisoner and negotiated by the draw- 
 er, part of the amount, for the pur- 
 pose of paying the bill, under the 
 false pretence that the prisoner was 
 prepared with the residue of the 
 amount, is an offence within 7 & 8 
 Geo. 4, c. 29, s. 53, the prisoner be- 
 ing shownnot to be so prepared, and 
 not intending so to apply the money. 
 Rex V. Ckosshy, 2 M. & Rob. 17; 2 
 Lewin, C. C. 164 — Patteson. 
 
 The prisoner was convicted upon 
 an indictment, charging him with 
 stealing a cheque. It was proved 
 that he was clerk to a savings bank, 
 and received the cheque from a man- 
 ager of the bank, upon a false rep- 
 resentation that one of the deposit- 
 ors had given notice of withdrawal, 
 and for the purpose of handing it 
 over to the depositor. It was found 
 that, according to the usual course 
 of business, if a depositor could not 
 attend at a proper time to receive 
 the cheque, it was handed to the 
 prisoner, as the agent of the depos- 
 itor : — Held, that the case was one 
 of false pretence, and not larceny, 
 and that the conviction was wrong. 
 Reg. V. ^ssea;. Dears. & B. C. C.371; 
 4 Jur., N. S. 1 6 ; 27 L. J., M. C. 20 ; 
 7 Cox, C. C. 384. 
 
 If an indictment for attempting 
 to obtain money under false preten- 
 ces, charges it to have been attempt- 
 ed by means of a paper writing pur- 
 porting to be an order for money, 
 and the instrument cannot be con- 
 sidered as stated in the indictment 
 to be such an order, it is bad. Rex 
 V. Gartwright, R. & R. C. C. 106. 
 
 But an indictment that A. unlaw- 
 fully did falsely pretend that a 
 printed paper was a good and valid 
 promissory note, is sufficient, with- 
 out setting out the paper. Reg. v. 
 Goulson, T. &. M. 332 ; 1 Den. C. C. 
 592 ; 14 Jur. 557 ; 19 L. J., M. C. 182. 
 
 Where a prisoner obtained goods 
 on the faith of a false statement 
 that a bill which he gave for the price 
 of them would be paid on the fol- 
 lowing day, he may be convicted 
 of obtaining goods imder false pre- 
 
160 
 
 FLASH OR WORTHLESS BANK NOTES. 
 
 tences, though such bill on the face 
 of it was not due till after that day. 
 Eeg. V. Hughes, 1 F. & F.' 855— 
 Watson. 
 
 An indictment stated that the de- 
 fendant falsely pretended to W. 
 that he was a captain in the East 
 India Company's service, and that 
 a promissory note which he " then 
 and there produced and delivered 
 to W., purporting to be made for 
 the payment of 211., not saying by 
 whom it purported to be drawn, 
 nor otherwise describing it, was a 
 good and valuable security for 111.; 
 by which false pretences he obtain- 
 ed," &c. : whereas the defendant 
 was not a captain in the company's 
 service; and whereas the promissory 
 note which he then and there pro- 
 duced, and delivered to W., " was 
 not a good and valuable security 
 for ill., or for any other sum": — 
 Held, that the indictment did not 
 sufficiently describe the note, or 
 show how it was wanting in value; 
 and that a conviction could not be 
 supported on the representation as 
 to the defendant's character, be- 
 cause the false pretences were so 
 connected on the record, that one 
 could not be separated from the 
 other. Reg. v. WicMiam, 2 P. & D. 
 333 ; 10 A. & E. 34. 
 
 (i) By passing off flash or worth- 
 less Bank Notes. 
 
 The fact of uttering a counterfeit 
 note as a genuine one is tantamount 
 to a representation that it was so; 
 and it is a false pretence, notwith- 
 standing the note upon the face of 
 it would have been good for nothing 
 in point of law, even if true. Rex 
 V. Freeth, R. & R. C. C. 127. 
 
 On an indictment for delivering 
 in payment for a horse certain pro- 
 missory notes, as for good and 
 available promissory notes, which 
 the prisoner knew to be not good, 
 nor of any value ; the notes purport- 
 ed to be the notes of a country bank 
 which was supposed to have failed : 
 — ^Held, that at all events it was 
 
 necessary to prove that the notes 
 were bad and of no value. Rex v. 
 Flint, R. & R. C. C. 460. 
 
 Indictment for false pretences, in 
 passing a note of a bank that had 
 stopped payment as a good note. 
 The prisoner knew that the bank 
 had stopped payment ; but it ap- 
 peared that two only of the part- 
 ners or the bank had become bank- 
 rupt, and that the third had not : — 
 Held, that the prisoner must be ac- 
 quitted. Rex V. Spencer, 3 C. & P. 
 420— Gaselee. 
 
 If a person passes a note of a 
 country bank for 61. payable on de- 
 mand as a good note, and as of the 
 value of 51, knowing that the bank 
 is insolvent, and has stopped pay- 
 ment, and cannot pay the note in 
 full, he may be indicted for obtain- 
 ing money by false pretences. Reg. 
 V. F}Dans, 5 Jur., N. S. 1361; 29 L. 
 J., M. C. 20 ; 1 L. T., N. S. 108 ; 
 Bell, C. C. 187; 8 Cox, C. C. 257. 
 
 But where the evidence shows 
 that the bank has paid a dividend, 
 the direction to the jury that there 
 is evidence that the note is not of 
 any value, will be wrong, lb. 
 
 Passing off a flash note as a Bank 
 of England note on a person unable 
 to read, and obtaining from him in 
 exchange for it five pigs, of the val- 
 ue of -dl. 17s. M., and 11. 2s. 6rf. 
 change, is a false pretence. Reg.\. 
 Goulson. T. & M. 332 ; 1 Den. C. C. 
 592; 14 Jur. 557; 19 L. J., M. C 
 182 ; 4 Cox, C. C. 227. 
 
 The defendant fraudulently offer- 
 ed a 11. Irish bank note as a note 
 for 51., and obtained change as for 
 a 51. note. The person from whom 
 the change was obtained could read, 
 and the note itself upon the face of 
 it clearly afforded the means of de- 
 tecting the fraud :— Held, that this 
 was obtaining money by means of 
 false pretences. Reg. v. Jessop, 
 Dears. & B. C. C. 442 ; 4 Jur., N. 
 S. 123; 27L. J.,M. C. 70; 7 Cox, 
 C. C. 399. 
 
 An indictment charging that the 
 defendant unlawfully did falsely pre- 
 
 Digitized by Microsoft® 
 
"WHAT CHATTELS OR SECURITIES. 
 
 161 
 
 tend to S. that a paper writing which 
 he produced to S. was a good 51. Led- 
 bury Bank note, by means whereof 
 he unlawfully obtained money from 
 S., with intent to cheat and defraud 
 him of the same : whereas, in truth 
 and in fact, the paper writing was 
 not a good 51. note of the Ledbury 
 Bank, is bad, as it does not charge 
 that the defendant knew that it was 
 not a good 51. note of the Ledbury 
 Bank, and is not aided by the alle- 
 gation of the intent to defraud. 
 Beg. V. FMlpotts, 1 C. & K. 112— 
 Wightman. 
 
 On an indictment for obtaining 
 money by falsely pretending that 
 the promissory note of a bank that 
 has stopped payment by reason of 
 bankruptcy, was a good and valu- 
 able security for the payment of the 
 amount mentioned in it, and was of 
 that value, it is not necessary to 
 prove the proceediags in bankrupt- 
 cy. It is sufficient to prove the 
 time when the bank stopped pay- 
 ment, and that cash could not be 
 obtained for the note on its being 
 presented for payment at the place 
 where it was made payable. JRegr. 
 V. Smith, 6 Cox, C. C. 314. 
 
 The prisoner, knowing that some 
 old country bank notes had been 
 taken by his uncle forty years be- 
 fore, and that the bank had stopped 
 payment, gave them to a man to 
 pass, telling him to say, if asked 
 about them, that he had taken them 
 from a man he did not know. The 
 man passed the notes, and the pris- 
 oner obtained value for them. It 
 appeared that the bankers were 
 made bankrupt : — Held, that he was 
 guilty of obtaining money by false 
 pretences. Jieg. v. Dowey, 17 L. 
 T., K S. 481; 16 W. R. 344; 37 
 L. J., M. C. 52 ; 11 Cox, C. C. 115 
 — C. C. R. 
 
 Held, also, that the bankruptcy 
 proceedings need not be proved. Ih. 
 
 (j) -5i respect of what Chattels or 
 
 Securities. 
 Dogs not being tJ 
 Fish. Dig. — 11 
 
 larceny at common law, were not 
 chattels, within 7 & 8 Geo. 4, o. 29, 
 s. 53. Reg. v. Hobinson, Bell, C. 
 C. 34 ; 5 Jur., N. S. 203 ; 28 L. J., 
 M. C. 58 ; 7 W. R. 203 ; 32 L. T. 
 502. 
 
 G., secretary to a burial society, 
 was indicted for falsely pretending 
 that a death had occurred, and so 
 obtaining from the president an or- 
 der on the treasurer in the following 
 form: " Bolton United Burial So- 
 ciety, No. 23, Bolton, September 
 1st, 1853. Mr. A. Entwistle, treas- 
 urer; please to pay the bearer 21. 
 10s., Greenhalgh, and charge the 
 same to the society. Robert Lord, 
 Benjamin Beswick, president": — 
 Held, that this was a valuable secu- 
 rity under 7 & 8 Geo. 4, c. 29, s. 53, 
 as explained by sect. 5. lieg. v. 
 Greenhalgh, 1 Dears. C. C. 267; 6 
 Cox, C. C. 257. 
 
 B. was indicted for obtaining by 
 false pretences from a railway com- 
 pany a printed ticket, with intent to 
 defraud the company of the same ; 
 the ticket enabled the prisoner to 
 travel free from B. to H., and was 
 to be given back to the company at 
 H. : — Held, that the ticket was a 
 chattel within 7 & 8 Geo. 4, c. 29, 
 s. 53, and that the attempt to de- 
 fraud the company of the same was 
 not affected by the fact of the tick- 
 et having to be returned at the end 
 of the journey. Seg. v. BouUon, 1 
 Den. C. C. 508 ; 2 C. & K. 917 ; 13 
 Jur., 1034 ; 19 L. J., M. C. 67 ; 3 
 Cox, C. C. 576. 
 
 A., by means of false pretences, 
 engaged with the prosecutrix for 
 lodging at 10*. a week. He accord- 
 ingly became a lodger in her house, 
 and a few days afterwards expressed 
 a wish to become a boarder. He was 
 then supplied with board as well as 
 lodging at 11. Is. per week. He was 
 afterwards indicted for obtaining 
 goods (the board) by means of false 
 pretences, and convicted : — Held, 
 that the conviction could not be 
 supported, as the goods were sup. 
 '■""Ise^Sremotely from the false 
 
162 
 
 FALSE PRETENCES AND CHEATS. 
 
 pretence. Beq. v. Gardner, Dears. 
 &, B. C. C. 40 ; 2 Jur., N. S. 598 ; 
 25 L. J., M. C. 100. 
 
 A conviction for obtaining a 
 chattel by false pretences is good, 
 although the chattel is not in exist- 
 ence at the time of the pretence be- 
 ing made, provided the subsequent 
 delivery of the , chattel is directly 
 connected with the false pretence. 
 Reg. V. Martin, 1 L. R., C. C. 56 ; 
 36 L. J., M. C. 20 ; 10 Cox, C. C. 
 383. 
 
 Whether or not there is such a 
 direct connexion is a question for 
 the jury. Ih. 
 
 3. Cheats. 
 
 Indictable.] — If there is a plan to 
 cheat a man of his property, under 
 colour of a bet, and he parts with 
 the possession only to deposit it as a 
 stake with one of the confederates ; 
 the taking by such confederate is 
 felonious. Hex v. Rohson, R. & R. 
 C. C. 413. 
 
 To obtain property from another 
 by the practice of ring-dropping is 
 felony, if the jury finds it was ob- 
 tained under a preconceived design 
 to steal it. — Rex v. Patch, 1 Leach, 
 C. C. 238 ; 2 East, P. C. 678 ; S. P. 
 Rex V. Marsh, 1 Leach, C. C. 345. 
 
 A person who induces another to 
 deliver bank notes to him, by the 
 practice of ring-dropping, on a con- 
 dition that if he does not restore 
 them in such a time, the entire val- 
 ue of the ring will belong to the 
 person delivering the notes, is guil- 
 ty of felony ; for, although the pos- 
 session of the notes is parted with, 
 the property still remains in the 
 owner. Rex v. Watson, 2 Leach, 
 C. C. 640 ; 2 East, P. C. 680. 
 
 To aid and assist a person to the 
 jurors unknown, to obtain money by 
 the practice of ring-dropping, is fel- 
 ony, if the jury finds that the prisoner 
 was confederating with the person 
 unknown to obtain the money by 
 means of this practice. Rex v. 
 Mowe, 1 Leach, C. C. 314; 2 East, 
 P. C. 679. 
 
 Digitized by 
 
 It is an indictable offence if two 
 effect a cheat by means of one pre- 
 tending to be a merchant, and the 
 other a broker, and as such barter- 
 ing pretended wines for hats. Rex 
 V. MacaHy, 2 East, P. C. 823. 
 
 If a man in the course of his 
 trade, openly carried on, puts a 
 false mark or token upon a spurious 
 article, so as to pass it off as a gen- 
 uine one, and the article is sold and 
 money obtained by means of the 
 false mark or token, he is guilty of 
 a cheat at common law. Reg. v. 
 aoss, Dears. & B. C. C. 460 ; 3 Jur., 
 N. S. 1309 ; 27 L. Jf., M. C. 54. 
 
 If a person knowingly sells as an 
 original, a copy of a picture, with 
 the painter's name imitated upon 
 it, and by means of the irtiitated 
 name, knowingly and fraudulently 
 induces another to buy and pay for 
 the picture as a genuine worlc of 
 the artist, he may be indicted for a 
 cheat at common law, by means of 
 a false token ; but he cannot be in- 
 dicted for forging, or uttering the 
 forged name of the painter ; for the 
 crime of forgery must be commit- 
 ted with some document in writing, 
 and does not extend to the fraudu- 
 lent imitation of a name put on a 
 picture merely as a mark to identi- 
 fy it as the painter's work. lb. 
 
 Indictment.'] — Ad indictment for 
 such an offence must contain an 
 averment that it was by means of 
 such false mark or token that he 
 was enabled to pass off the article 
 and obtain the money. lb. 
 
 In an indictment under 8 & 9 
 Vict. c. 109, s. 17, for winning mon- 
 ey at cards by fraud, unlawful de- 
 vice and ill practice, it is not neces- 
 sary to state to whom the money 
 belonged. Reg. v. Moss, Dears: & 
 B. C.'C. 104; 2 Jur., N. S.,1196: 
 26 L. J., M. C. 9 ; 7 Cox, C. C. 200. 
 
 4. Inducing Persons by Fraud to ex- 
 
 ecute or destroy Valuable Secu. 
 
 rities. 
 
 By 24 & 25 Vict. c. 96, s. 90, 
 
 , " whosoever, with intent to defraud 
 
 Ivlicrosoft® 
 
AMOUNTING TO LARCENY. 
 
 163 
 
 " or injure any other person, shall hy 
 " any false pretence fraudulently 
 " cause or uiduce any other person 
 " to execute, make, accept, indorse 
 " or destroy the whole or any part 
 " of any valuable security, or to 
 " write, impress or affix his name, 
 " or the name of any other person, 
 "or of any company, firm or co- 
 " partnership, or the seal of any 
 " body corporate, company or so- 
 " ciety, upon any paper or parch- 
 " ment, in order that the same may 
 " be afterwards made or converted 
 " into or used or dealt with as a 
 " valuable security, shall be guilty 
 " of a misdemeanor." {Previous en- 
 actment, 21 & 22 Vict. c. 47.) 
 
 Inducing a person by a false pre- 
 tence to accept a bill of exchange, 
 was not an obtaining a valuable se- 
 curity by a false pretence within 7 
 & 8 Geo. 4, c. 29, s. 53. Reg. v. 
 Danger, Dears. & B. C. C. 307 ; 3 
 Jur., N. S. 1011; 26 L. J., M. C. 
 185 ; 7 Cox, C. C. 303. 
 
 5. Amounting to Larceny. 
 
 By 24 & 25 Vict. c. 96, s. 88, "if 
 " upon the trial of any person in- 
 " -dieted for the misdemeanor of 
 " obtaining by any false pretence 
 " from any other person any chat- 
 " tel, money or valuable security, 
 " with intent to defraud, it shall be 
 " proved that he obtained the prop- 
 " erty in question in any such man- 
 " ner as to amount in law to larceny, 
 " he shall, not by reason thereof be 
 " entitled to be acquitted of such 
 " misdemeanor, and no person tried 
 " for such misdemeanor shall be 
 " liable to be afterwards prosecuted 
 " for larceny upon the same facts." 
 
 To prevent a person indicted for 
 false pretences from being acquit- 
 ted on the ground that the of- 
 fence is that of felony, the false pre- 
 tences laid must be proved, for un- 
 der the 24 & 25 Vict. c. 96, s. 88, 
 he is to be found guilty of the mis- 
 demeanor, lieg. V. Buhner, L. & 
 C. 476; 9 Cox, C. C. 492; 10 Jur., 
 
 N. S. 684 ; 33 L. J., M. C. 171 ; 10 
 L. T., N. S. 580. 
 
 If a banker's clerk tells a custom- 
 er of the house that he has paid in 
 money on his account, and thereby 
 induces the customer to give him a 
 cheque for the amount, which he 
 receives the money for, and after- 
 wards makes fictitious entries in the 
 books, to prevent a discovery of the 
 transaction, it is a felonious taking 
 of the money from the banker, with- 
 out his consent, and not an obtaining 
 of it under false pretences. Rex v. 
 Hammon, 2 Leach, C. C. 1083 ; 4 
 Taunt. 304; R. & R. C. C. 221. 
 
 To obtain goods by false pretences 
 from the servant of the owner, to 
 whom they were delivered for the 
 purpose of being carried to a cus- 
 tomer, who had purchased them, is 
 a taking from the possession of the 
 master ; and if so taken, with a pre- 
 concerted design to steal them, 
 amounts to felony. Rex v. Wilkins, 
 1 Leach, C. C. 620 ; 2 East, P. C. 
 673. 
 
 Where a man pretending to be 
 the servant of a person who had 
 bought a chest of tea deposited at 
 the company's warehouse, got a re- 
 quest paper and permit for the 
 chest, and took it away with the 
 assent of a person in the East India 
 Company's service, who had the 
 charge of it: — ^Held, to be felony. 
 Rex V. Hench, R. & R. C. C. 163. 
 
 A., employed in a tannery, clan- 
 destinely removed certain sldns of 
 leather from the warehouse to an- 
 other part of the tannery, for the 
 purpose of delivering them to the 
 foreman and getting paid for them 
 as if they had been his own work : 
 — Held, that this did not amount to 
 larceny, but an attempt to commit 
 the misdemeanor of obtaining mon- 
 ey by false pretences. Reg.w. Hol- 
 loway, 1 Den. C. C. 370 ; T. & M. 
 48 ; 3 New Sess. Cas. 410 ; 2 C. & 
 K. 942; 13 Jur. 86; 18 L. J., M, 
 C. 60. 
 
 When one servant obtains from 
 another, by means of a false pre- 
 
 Digitized by Microsoft® 
 
164 
 
 FALSE PRETENCES AKD CHEATS. 
 
 tence, the goods of the master, 
 which the latter had no authority 
 to deliver to him, the oflfence is lar- 
 ceny and not false pretences. Meff. 
 V. Sobins, 6 Cox, C. C. 420 ; 18 
 Jur. 1058. 
 
 A., having bought a watch in 
 London, returned it to the seller to 
 be regulated. B. fraudulently wrote 
 in the name of A. to the seller, re- 
 questing him to send it in a letter 
 to the post-office at C, and on its 
 arrival at C. personated A. and re- 
 ceived the watch: — Held, that B. 
 was guilty, not of obtaining by 
 false pretences but of larceny, in 
 taking the watch by fraud from the 
 postmaster, as the postmaster was 
 the mere servant of the true owner, 
 and if the seller had any special 
 property in the watch, it, ceased 
 when he sent it through the post. 
 Beg. V. Kay, 7 Cox, C. C. 289 ; 3 
 Jur., N. S. 546. 
 
 6. Parties Indictable. 
 
 Where the pretence is conveyed 
 by words spoken by one defendant 
 in the presence of others who are 
 acting in concert together, they may 
 be all indicted jointly. Young v. 
 Bex (in error), 3 T. R. 98 ; 2 East, 
 P. C. 82, 833 ; 1 Leach, C. C. 505. 
 
 On an indictment for obtaining 
 money under false pretences, a party 
 who has concurred and assisted in 
 the fraud may be convicted as prin- 
 cipal, though not present at the 
 time of making the pretence and 
 obtaining the money. Reg. v. Mol- 
 and, 2 M. C. C. 276. 
 
 7. Indictment. 
 
 Form of Averments.^ — By 24 & 
 25 Vict. c. 96, s. 88, " it shall be 
 " sufficient in any indictment for 
 " obtaining or attempting to obtain 
 " any such property — (i. e., any 
 " chattel, money or valuable secur- 
 " ity, see sect. 87 and sect. 1) — by 
 " false pretences to allege that the 
 " party accused did the act with in- 
 " tent to defraud, without alleging 
 " an intent to defraud any particu- 
 
 " lar person, and without alleging 
 " any ownership of the chattel, 
 " money, or valuable security ; and 
 " on the trial of any such indictment 
 " it shall not be necessary to prove 
 " an intent to defraud any particu- 
 " lar person, but it shall be sufficient 
 " to prove that the jDarty accused 
 " did the act charged with an intent 
 " to drfraud." [Former provision, 
 14 & 15 Vict; c. 100, s. 8.) 
 
 By 14 & 15 Vict. c. 100, s. 5 [un- 
 repealed), "in any indictment for 
 " obtaining by false pretences any 
 " instrument, it shall be sufficient 
 " to describe such instrument by 
 " any name or designation by which 
 " the same may be usually known, 
 " or by the purport thereof, without 
 " setting out any copy or fac-simile 
 " thereof, or otherwise describing- 
 " the same or the value thereof." 
 
 Allegation of False Pretence.^ — 
 An indictment for a fraud at com- 
 mon law, charging the false pre- 
 tence to have been made to one 
 person, and the deceit to have been 
 practised on a diiferent person is 
 bad. Rex v. Lara, 2 Leach, C. C. 
 647 ; 2 East, P. C. 819, 824 ; 6 T. 
 R.565. 
 
 An indictment on a charge of ob- 
 taining goods under false pretences, 
 is bad, if it states that the prisoner 
 " unlawfully, knowingly, and de- 
 signedly, did feloniously pretend," 
 <fcc. Rexy. Walker, 6 C. & P. 657. 
 See Rex v. Howarth, 3 Stark. 26. 
 
 An indictment for obtaining mon- 
 ey under false pretences must allege 
 that the defendant knew the false- 
 hood : " falsely and fraudulently " 
 is not enough. Reg. v. Henderson, 
 2 M. C. C. 192 ; Car. & M. 328. 
 
 In an indictment for obtaining 
 money by false pretences under 7 
 & 8 Geo. 4, c. 29, it was alleged 
 that th^ defendant " did unlawfully 
 falsely pretend," &c. : — Held, that 
 the omission of the word " know- 
 ingly " was no ground for arresting 
 the judgment. Reg. v. Bowen, 4 
 New Sess. Cas. 62 ; 13 Q. B. 790 ; 
 
 Digitized by Microsoft®' 
 
INDICTMENT. 
 
 165 
 
 1045 ; 19 L. J., 
 
 M, C. 65 ; 
 
 13 Jur 
 
 3 Cox, C. C. 483 
 
 An indictment charging the de- 
 fendant with obtaining money by 
 false pretences, is insufficient, if it 
 does not shew what the false pre- 
 tences were. Rex v. Mason, 1 
 Leach, C. C. 487 ; 2 East, P. C. 
 837 ; 2 T. R. 581. 
 
 Indictment for falsely pretending 
 to the prosecutor, whose mare and 
 gelding had strayed, that he, prison- 
 er, would tell him where they were, 
 if he would give him a sovereign 
 down. The prosecutor gave the 
 sovereign, but the prisoner refused 
 to tell : — Conviction held bad ; the 
 indictment should have stated that 
 he pretended he knew where they 
 were. Rex v. Douglas, 1 M. C. C. 
 462. 
 
 A first count charged that the de- 
 fendant unlawfully did falsely pre- 
 tend to J. L. that he, the defendant, 
 was sent by W. P. for an order to go 
 to J. B. for a pair of shoes, by means 
 of which false pretence he did ob- 
 tain from J. B. a pair of shoes, of 
 the goods and chattels of J. B., with 
 intent to defraud J. L. of the price 
 of the said shoes, to wit, nine shil- 
 lings, of the monies of J. L. The 
 second count charged that he falsely 
 pretended to J. L., that W. P. had 
 said that J. L. was to give him, the 
 defendant, an order to go to J. B. 
 for a pair of shoes, by means of 
 which false pretence he did obtain 
 from J. B., in the name of J. L., a 
 pair of shoes of the goods of J. B., 
 with intent to defraud J. L. of the 
 same ; — Held, that both of these 
 counts were bad in arrest of judg- 
 ment, as neither of them charged a 
 sufficient false pretence. Reg. v. 
 TuUy, 9 C. & P. 227— Gurney. Sed 
 quaere, see Reg. v. Brown, 2 Cox, 
 C. C. 348— per Patteson. 
 
 An indictment is bad charging 
 that the defendant, contriving and 
 intending to cheat W., on a day 
 named, did falsely pretend to him 
 that he, the defendant, then was a 
 captain in her Majesty's fifth regi 
 
 ment of dragoons ; by means of 
 which false pretence he did obtain 
 of W. a valuable security, to wit, 
 an order for the payment of 500Z., of 
 the value of 500Z., the property of 
 W., with intent to cheat W. of the 
 same ; whereas, in truth, he was not, 
 at the time of making such false 
 pretence, a captain in her majesty's 
 regiment ; and the defendant, at 
 the time of making such false pre- 
 tence, well knew that he was not a 
 captain is a good indictment after 
 conviction and judgment ; for it 
 was not necessary to allege more 
 precisely that the defendant made 
 the particular pretence with the in- 
 tent of obtaining the security ; nor 
 how the particular pretence was 
 calculated to effect, or had effected, 
 the obtaining : and the truth of the 
 pretence was well negatived, it ap- 
 pearing sufficiently that the pre- 
 tence was, that the defendant was a 
 captain at the time of his making 
 such pretence, which was the fact 
 denied ; and it was unnecessary to 
 aver expressly that the security was 
 unsatisfied, at any rate since 7 Geo. 
 4, c. 64, s. 21, the objection being 
 taken after verdict, and the indict- 
 ment following the words of the 
 statute creating the offence. Ham- 
 ilton V. Reg. (in error), 9 Q. B. 271 ; 
 10 Jur. 1028 ; 16 L. J., M. C. 9 ; 2 
 Cox, C. C. 11. 
 
 Intent to defraud.^ — An indict- 
 ment stated that A. did unlawfully 
 attempt and endeavour fraudulent- 
 ly, falsely and unlawfully to obtain 
 from the Agricultural Cattle Insur- 
 ance Company a large sum of mon- 
 ey, to wit, 22/. \0s., with intent to 
 cheat and defraud the company : — 
 Held, first, that the nature of the 
 attempt was not sufficiently set 
 forth. Reg. v. Marsh, 1 Den. C. C. 
 505 ; T. & M. 192 ; 3 New Sess. 
 Cas. 699 ; 13 Jur. 1010 ; 19 L. J., 
 M. C. 12. 
 
 A., the servant of B., rendered 
 an account to B. of 14^. Is. 2d. as 
 due from A. to his workmen, and 
 
 Digitized by Microsoft® 
 
166 
 
 FALSE PRETENCES AND CHEATS. 
 
 B. gave A. a cheque for the amount. 
 All that sum was so due except Is., 
 which A. kept when he got the 
 cheque cashed, and paid the work- 
 men the residue. In one count of 
 an indictment for false pretences it 
 was charged that, by this false pre- 
 tence, A. obtained the check of B. 
 with intent to defraud him of the 
 same. It was objected that the in- 
 
 r tent was only to defraud B. of a 
 part of the proceeds of the cheque. 
 A. was convicted ; and the judges 
 held the conviction right, and that 
 the evidence supported the count. 
 Reg. V. Leonard, 3 Cox, C. C. 284 ; 
 1 Den. C. C. 304. 
 
 An indictment alleging that the 
 defendant falsely pretended a sum 
 of money, a parcel of a certain larg- 
 er sum, was due and owing to him 
 for work which he had executed for 
 the prosecutors, is not an allegation 
 of a false pretence of an existing 
 fact, as the allegation might be sat- 
 isfied by evidence of a mere matter 
 of opinion, either as regarded fact 
 or law; and therefore the indict- 
 ment is bad. Reg. v. Oates, Dears. 
 
 C. C. 459; 1 Jur., N. S. 429; 24 L. 
 J., M. C. 123; 6 Cox, C. C. 540. 
 
 An indictment for obtaining goods 
 by false pretences must state the 
 false pretences with certainty, so 
 that it may clearly appear that 
 there was a false pretence of an ex- 
 isting fact. Reg. v. Henshaw, L. 
 & C. 444 ; 9 Cox, C. C. 472 ; 10 
 Jur., N. S. 595 ; 33 L. J., M. C. 
 132 ; 12 W. R. 751 ; 10 L. T., N. 
 S. 428. 
 
 In an indictment alleging that 
 the prisoner pretended to A.'s re- 
 presentative that she was to give 
 him 20«. for B., and that A was go- 
 ing to allow B. 16«. per week, it 
 does not sufficiently appear that 
 there was any false pretence of an 
 existing fact. lb. ■ 
 
 An indictment alleging that the 
 prisoners falsely pretended to A. 
 that some soot which they then de- 
 livered to A. weighed one ton and 
 seventeen owt., whereas it did not 
 
 weigh one ton seventeen cwt., but 
 only weighed one ton and thirteen 
 cwt., they well knowing the pre- 
 tence to be false, by means of which 
 false pretence they obtained from 
 A. 8«. with intent to defraud, is 
 good, and sufficiently describes an 
 indictable false pretence. Reg. v. 
 Lee, L. & C. 418 ; 9 Cox, C. C. 460 ; 
 32 L. J., M. C. 129 ; 12 W. R. 750 ; 
 10 L. T., N. S. 348. 
 
 Upon a charge of obtaining mon- 
 ey by false pretences, it is sufficient 
 if the actual substantial pretence, 
 which is the main inducement to 
 part with the money, is alleged in 
 the indictment, and proved ; al- 
 though it may be shewn hj evidence 
 that other matters not laid in the 
 indictment in some measure oper- 
 ated upon the mind of the prosecut- 
 or as an inducement for him to part 
 with his money. Reg. v. HewgiU, 
 Dears. C. C. 351 ; 2 C. L. R. 600; 
 18 Jur. 158. 
 
 An indictment stating that, by 
 the rules of a benefit society, every 
 free member was entitled to bl. on 
 the death of his wife ; and that the 
 defendant falsely pretended that a 
 paper which he produced was gen- 
 uine, and contained a true account 
 of his wife's death and burial, and 
 that he further falsely pretended 
 that he was entitled to bl. from the 
 society, by virtue of their rules, in 
 consequence of the death' of his wife, 
 by means of which last-mentioned 
 false pretence he obtained money, is 
 good. Reg. v. Dent, 1 C. & K. 249 
 — Rolfe. 
 
 In an indictment, the pretence 
 averred in some of the counts was 
 that the prisoner falsely pretended 
 that he having executed work, there 
 was a sum of money due and owing 
 to him for and on account of the 
 work, being parcel of a larger sum 
 claimed by him, whereas there was 
 not then due and owing to him such 
 money, being parcel of a larger sum. 
 The false pretence averred in other 
 counts was that the prisoner falsely 
 pretended that there was due and 
 
 Digitized by Microsoft® . 
 
EVroENGE. 
 
 167 
 
 owing to him the whole amount of 
 a sum of money for and on account 
 of work executed by Mm, whereas 
 there was not then due and owing 
 to him the whole amount of such 
 sum of money, but only a smaller 
 sum : — ^Held, that the indictment 
 was bad, inasmuch as a false pre- 
 tence of an existing fact was not 
 sufficiently alleged, and the aver- 
 ments would be proved by evidence 
 of a mere wrongful overcharge. 
 Reg. V. Oates, Dears. C. C. 459 ; 3 
 C. L. R. 661 ; 1 Jur., N. S. 429 ; 24 
 L. J., M. C. 123. 
 
 Allegation of Ownership of Prop- 
 erty.'] — An indictii\ent for obtaining 
 goods by means of false pretences, 
 with intent to defraud a specified 
 person, was bad, unless it stated 
 whose property the goods were, and 
 the defect was not aided after ver- 
 dict, under 7 Geo. 4, c. 64, s. 21. 
 Reg. V. Martin, 3 N". & P. 472 ; 8 
 A. & E. 481 ; 1 W. W. & H. 380 ; 
 2 Jur. 515 ; S. P. Reg. v. Norton, 8 
 C. & P. 196. 
 
 By 14 & 15 Vict. c. 100, s. 8, it 
 shall be sufficient, in an indictment 
 for obtaining property by false pre- 
 tences, to allege that the defendant 
 did the act with intent to defraud, 
 without alleging the intent of the 
 defendant to be to defraud any par- 
 ticular person. By s. 25, every ob- 
 jection to an indictment for any 
 formal defect apparent on the face 
 thereof shall be taken before the 
 jury shall be sworn : — Held, that 
 sect. 8 did not render it unneces- 
 sary, in an indictment for obtaining 
 money by false pretenses, to state 
 whose property the money was, and 
 that the omission was not a formal 
 defect within sect. 25. Sill v. Reg. 
 (in error), Dears. C. C. 132 ; 1 El. 
 & Bl. 553 ; 17 Jur. 207 ; 22 L. J., 
 M. C. 41. See 24 & 25 Vict. c. 96, 
 s. 88, suprk, which renders an alle- 
 gation of ownership unnecessary. 
 
 An indictment for false pretences, 
 alleging that the prisoner obtained 
 " from A. a cheque for the sum of 
 
 Digitized by 
 
 2il. 14«. 6rf. of the monies of B." is a 
 sufficient allegation that the cheque 
 was the property of B. Reg. v. 
 Godfrey, Dears. & B. C. C. 426 ; 4 
 Jur., N. S. 146 ; 27 L. J., M. C. 151 ; 
 7 Cox, C. C. 392. 
 
 In an indictment framed upon 8 
 & 9 Vict, c 109, s. 17, charging 
 that the prisoner, by fraud in play- 
 ing at cards, did win from A. to B. 
 a sum of money with intent to ^^ 
 cheat A., it is not necessary to al- 
 lege that the money won was the 
 property of A. Reg. v. Moss, 
 Dears. & B. C. C. 104 ; 2 Jur., N. 
 S. 1196 ; 26 L. J., M. C. 9. 
 
 But an indictment for a conspir- 
 acy to obtain goods by false pre- 
 tences, not stating whose property 
 the goods were which it was the 
 object of the conspiracy to obtain, 
 is bad, in arrest of judgment. Reg. 
 V. Parker, 2 G. & D. 709 ; 3 Q. B. 
 292. 
 
 8. Evidence. 
 
 When a false pretence is contain- 
 ed in a letter which is lost, the pris- 
 oner may be convicted, if parol ev- 
 idence is given of the contents of 
 the letter. Rex v. Ghadwick, 6 C. 
 & P. 181— Tindal. 
 
 It is not necessary to prove the 
 whole of the pretence charged ; 
 proof of part of the pretence, and 
 that the money was obtained by 
 such part, is sufficient. Rex v. 
 BiU, R. & R. C. C. 190. 
 
 A. was indicted for obtaining a 
 specific sum of money from B. by 
 false pretences. He was employed 
 by his master to take orders, but 
 not to receive monies, and he was 
 proved to have obtained the specific 
 sum from B. by representing that he 
 was authorised by his master to re- 
 ceive it. Evidence of his having, 
 within a week afterwards, obtained 
 another sum from another person 
 by a similar false pretence, such ob- 
 taining not being mentioned in the 
 indictment in any way, is not ad- 
 missible for the purpose of proving 
 the intent when he committed the 
 
 Microsoft® 
 
168 
 
 FALSE PRETENCES AND CHEATS. 
 
 acts charged in the indictment. 
 Reg. V. Holt, 8 Cox, C. C. 411 ; Bell, 
 C. C.280;30L. J.,M.C.ll; 6 Jur., 
 N. S. 1121; 9 W.R. 74; 3 L. T., 
 N. S. 310. 
 
 On an indictment for obtaining 
 money by false pretences, if it is 
 consistent with the evidence for the 
 prosecution that the object of the 
 false pretence was something else 
 i than the obtaining of the money, 
 the charge will not be sustainable. 
 Reg T. Stone, IF. & F. 311— Wil- 
 les. 
 
 On an indictment against a de- 
 fenda;nt for obtaining goods by 
 falsely pretending that he was of 
 full age, a plea of infancy in an 
 action brought against him is not 
 admissible for the purpose of prov- 
 ing that he was a minor. Reg. v. 
 Simmonds, 4 Cox, C. C. 277. 
 
 A prisoner was indicted for ob- 
 taining money from A. by false pre- 
 tences. A.'s wife, by her husband's 
 direction, delivered the money to 
 the prisoner in the absence of her 
 husband : — Held, that the money 
 was obtained from A. Reg. v. 
 Moseley, L. & C. 92 ; 9 Cox, C. C. 
 16; 7 Jur., K S. 1108; 31 L. J., 
 M.C.24; 10 W.R. 61;5L.T.,]Sr. 
 S. 328. 
 
 The money of a benefit society, 
 whose rules were not inroUed, was 
 kept in a box, of which E., one of 
 the stewards, and two others had' 
 keys. The prisoner, on the false 
 pretence that his wife was dead, 
 which pretence he made to the 
 clerk of the society in the hearing 
 of E., obtained from the hands of E. 
 out of the box 5Z. : — Held, that, in 
 an indictment, the pretence might 
 be laid as made to E., and the 
 money, the property of " E. and 
 others," obtained from E. Reg. v. 
 Dent, 1 C. & K. 249— Rolfe and 
 Recorder Law. 
 
 Upon an indictment for obtaining 
 money by false pretences, where it 
 appears that statements were made 
 on different occasions, it is a ques- 
 tion for the jury whether they are so 
 
 connected as to form one continuing 
 representation. Reg. v. Welman, 
 Dears. C. C. 188 ; 17 Jur. 421 ; 22 
 L. J., M. C. 118; 6 Cox, C. C. 
 153. 
 
 A. was indicted for obtaining 200Z. 
 by falsely pretending that he had 
 obtained from Lord S. the appoint- 
 ment of emigration agent, which 
 was worth 600?. a year, and that, 
 for 200Z., he would give the prose- 
 cutor one-third of the agentship. 
 The prosecutor proved, that he 
 gave the money on this pretence, 
 which was false ; but that, before 
 he parted with his money, the pris- 
 oner prevailed on him to execute a 
 deed of copartnership with him, in 
 which the consideration was stated 
 to be 200/f., and in which nothing 
 was said of the agentship, or how 
 it was obtained : — Held, that the 
 putting in of this deed on the 
 part of the prosecution did not 
 exclude the parol evidence of the 
 false pretences; and that, if the 
 deed was a part of the scheme to 
 effect the fraud, the prisoner should 
 be found guilty. Reg v. Adamson, 
 1 C. & K. 192 ; 2 M. C . 0. 286. 
 
 A. was charged with an attempt, 
 by false pretences made to " John 
 Baggally and others," fraudulently 
 to obtain goods the property of the 
 same parties. The evidence was, 
 that the representation was made to 
 John Baggally alone : — ^Held, that 
 there was no variance, as the words 
 "and others" might be rejected as 
 surplusage. Reg. v. Keaky, T. & M. 
 405 ; 2 Den. C. C. 69 ; 15 Jur. 230 ; 
 aO L. J., M. C. 57 ; 5 Cox, C. C. 
 193. 
 
 On an indictment for obtaining 
 money by a false pretence that a 
 parcel contained all letters written 
 by th^ prosecutrix to the prisoner, 
 and which he had promised, in con- 
 sideration of the money, to give up, 
 the counsel for the prosecution is 
 not bound to have the letters read, 
 although the counsel for the prison- 
 er may cross-examine as to the con- 
 tents of any of them, and have any 
 
 Digitized by Microsoft® 
 
TRIAL. 
 
 169 
 
 read for that purpose. Eeg. v. 
 Coined, 3 P. & F. 104. 
 
 An indictment alleged that the 
 prisoner obtained goods by falsely 
 pretending that a person who lived 
 in a large house down the street, 
 and had had a daughter married 
 some time back, had asked him to 
 procure the goods. The prisoner 
 made the statement alleged to a 
 shopkeeper in a village, and there- 
 by obtained the goods ; but the only 
 evidence to disprove the truth of the 
 statement was that of a lady who 
 lived in the village, whose daughter 
 had been married a year previously, 
 who stated that she had not sent 
 the prisoner to the prosecutor's shop 
 for the goods. The jury having 
 found him guilty : — Held, that the 
 conviction might be sustained. Reg. 
 V. Burnsides, 6 Jur., N. S. 1310 ; 30 
 L. J., M. C. 42 ; 9 W. R. 37 ; 3 L. 
 T., K S. 311; Bell, C. C. 282 ; 8 
 Cox, C. C. 370. 
 
 B. was charged in a first count 
 with obtaining money from the 
 trustees of a savings bank by false- 
 ly pretending that a document pre- 
 sented to the bank by the wife of 
 D. had been filled up by the au- 
 thority of D.; and in a second 
 count, he was charged with con- 
 spiring with the wife of D. to 
 cheat- the bank. The evidence of 
 D. was received, in proof of the 
 first count, to show that he had 
 given no authority to fill up the 
 document or to withdraw the de- 
 posit. The jury found him guilty 
 on the first count, and not guilty 
 on the second count : — Held, first, 
 that the evidence of D. was proper- 
 ly, received in proof of the first 
 count, his wife not being indicted, 
 although she was alleged to be one 
 of the parties to the conspiracy 
 in the second count. Reg. v. H(Mi- 
 day, Bell, C. C. 257 ; 29 L. J., M. C. 
 148;8Cox,C. C. 298. 
 
 Held, secondly, that finding him 
 guilty on the first count was con- 
 sistent with finding him not guilty 
 on the second count. lb. 
 
 Fish. Dig. 12. Digitized by Microsoft® 
 
 , 9. Trial. 
 
 Where a prisoner, in a begging 
 letter, which contained false pre- 
 tences, and was addressed to the 
 prosecutor, who resided in Middle- 
 sex, requesting him to put a letter, 
 containing a post-office oi'der for 
 money, in a post-ofiice in Middle- 
 sex, to be forwarded to the prison- 
 er's address in Kent : — Held, that 
 the venue was rightly laid in Mid- 
 dlesex, as the prisoner, by directing 
 the money order to be sent by post, 
 constituted the post-master in Mid- 
 dlesex his agent to receive it there 
 for him ; and that, consequently, 
 there was a receipt of the money 
 order by the prisoner within the 
 coimty of Middlesex. Reg. v. Jones, 
 1 Den. C. C. 551 ; 4 New Sess. Cas. 
 363 ; 14 Jur. 633 ; 19 L. J., M. C. 
 162. 
 
 The prisoner wrote and posted in 
 a county a letter containing a false 
 pretence to the prosecutor, who re- 
 ceived it in a borough. The pros- 
 ecutor in the borough posted to the 
 piisoner in the county a letter con- 
 taining the money obtained by the 
 false pretence, and which the pris- 
 oner received in the county : — ^Held, 
 that under 7 Geo. 4, c. 64, s. 
 12, which authorises the trial in 
 any jurisdiction where the offence 
 is begun or completed, the prisoner 
 might be tried for the offence of ob- 
 taining the money by false pretence 
 at the borough quarter sessions; 
 part of the offence being the mak- 
 ing the false pretence, and the false 
 pretence being made to the prose- 
 cutor in the borough, where the 
 letter containing the false pretence 
 was delivered to him by the post- 
 ofiice authorities, whom the prison- 
 er made his agents for that purpose. 
 Reg. V. Leech, Dears. C. C. 642 ; 2 
 Jur., N. S. 428 ; 25 L. J., M. C. 77 ; 
 7 Cox, C. C. 100. 
 
 One who obtains goods by false 
 pretences in one county, and after- ' 
 wards brings them into another 
 county, where he is apprehended 
 with them, cannot be indicted for 
 
170 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 the oifence in the county, but must 
 be indicted in the couuty where the 
 goods were obtained. Reg. v. Stan- 
 hury, 9 Cox, C. C. 94 ; L. & C. 128 ■ 
 8 Jur., N. S. 84 ; 31 L. J., M. C. 88 ; 
 10 W. R. 236 ; 5 L. T., N. S. 686. 
 
 On an indictment for obtaining 
 money by a false pretence which 
 was alleged to have been by send- 
 ing a certain false return of fees to 
 the commissioners of the Treasury, 
 it appearing that the return was re- 
 ceived by them in Westminster, 
 with a letter dated Northampton, 
 and an affidavit sworn there ; and 
 that they, on the faith of it, drew 
 up a minute, which operated as an 
 authority to the paymaster-general 
 to pay a certain amount to the pris- 
 oner (as compensation under 7 & 8 
 Vict. c. 96) at Westminster, the 
 venue laid being Northamptonshire: 
 — Held, that there was reasonable 
 evidence that the false representa- 
 tion was forwarded from North- 
 ampton ; that it was, if false and 
 fraudulent, a false pretence within 
 the statute ; that in effect the mon- 
 ey was obtained by means of the 
 minute, being a mere matter of 
 regulation, and not a judicial pro- 
 ceeding ; and that, therefore, the 
 venue was right, and the indict- 
 ment was supported. Reg. v. Goolce, 
 1 P. & P. 64— Coleridge. 
 
 Where a misdemeanor consists 
 of different parts, so much of the 
 charge as amounts to a misdemean- 
 or in law must be proved in the 
 county in which the venue is laid. 
 Pearson v. M^ Gowran, 3 B. & C. 
 700; 5D. &R. 616. 
 
 10. Receiving Property obtained 
 hy False Pretences. 
 
 On the trial of an indictment for 
 receiving goods, knowing them to 
 have been obtained by false preten- 
 ces, if the jury is not satisfied that 
 ^the prisoner knew that the goods 
 were obtained by false pretences, 
 the receiver is entitled to be acquit- 
 ted. Reg. V. Rymes, 3 C. & K. 327 
 — Williams. 
 
 XVI. POBCIBLE EnTBT and De- 
 TAINBE. 
 
 5 R. 2, St. l,c. 8; \b R. 2, c. 2 ; 8 
 Hen. 6, c. 9 ; 31 Eliz. c. 11 ; 21 
 Jac. 1, c. 15. 
 
 Indictment.^ — An indictment at 
 common law, charging the defend- 
 ants with having unlawfully, and 
 with a' strong hand, entered the 
 prosecutor's mill, and expelled him 
 from the possession, is good. Rex 
 V. Wilson, 8 T. R. 357. 
 
 To constitute a forcible entry, or a 
 forcible detainer, it is not necessary 
 that any one should be assaulted, 
 but only that the entry or the de- 
 tainer should be with such numbers 
 of persons, and show of force, as is 
 calculated to deter the rightful own- 
 er from sending the persons away, 
 and resuming his own possession. 
 Milner v. Maclean, 2 C. & P. 17— 
 Abbott. 
 
 Upon the trial of an indictment 
 for a forcible entry or a detainer, 
 the party dispossessed was not a 
 competent witness for the prosecu- 
 tion, before 6 & 7 Vict. c. 85, and 
 14 & 15 Vict. c. 99. Rex v. Wil 
 liams, 4 M. & R. 471; 9 B. & C. 
 549 ; S. P., Rex v. Beavan, 242. 
 
 On the trial of such an indict- 
 ment, the defendant cannot im- 
 peach the title of the party dispos- 
 sessed, lb. 
 
 A person having no possession or 
 title to premises, but fraudulently 
 pretending to have such title, and 
 so allowed by the servant of the 
 true owner to enter, does not there- 
 by acquire possession, but may be 
 forcibly expelled by him on discov- 
 ery of the fraud ; and if in such- a 
 case assaults are committed in con- 
 sequence, the question for the jury 
 will be, whether there has been an 
 excess of violence. A subsequent 
 attempt by force to re-enter, and so 
 causing an affray : - Held, an indict- 
 able offence, for which the party 
 might be given in charge. Collins' 
 V. Thomas, 1 F. & P. 416— Camp- 
 bell. 
 
 Digitized by Microsoft® 
 
INDICTMENT. 
 
 171 
 
 Senible, in an indictment for for- 
 cible entry, it is not necessary to al- 
 lege the pi-osecutor's title to the 
 property, it is sufficient to state the 
 possession ; but if the title is stated 
 it need not be proved. Reg. v. 
 Child, 2 Cox, C. C. 102— Rolfe. 
 
 An indictment for a forcible en- 
 try cannot be supported by evi- 
 dence of a mere trespass ; but there 
 must be proof of such force, or at 
 least such shew of force, as is calcu- 
 lated to prevent any resistance. 
 Rex. V. Smyth, 5 C. & P. 201 ; 1 M. 
 & Rob. 156— Tenterden. 
 
 A wife separated from her hus- 
 band took a house, of which the 
 husband, with the landlord's con- 
 sent, obtained possession. Semble, 
 that if the wife came with others, 
 and made a forcible entry into this 
 house, she might be convicted on 
 an indictment for forcible entry, 
 stating it to be the house of the hus- 
 band, lb. 
 
 A constable entered a house with 
 a warrant in his hand, and searched 
 the house ; and for such entering 
 and searching was indicted for for- 
 cible entry : — Held, that his counsel 
 might ask the witnesses- for the 
 prosecution what the constable said, 
 at the time, as to whom he was 
 searching for. Ih. 
 
 If a tenant of a house, after reg- 
 ular notice to quit, abandons it, and 
 locks it up, leaving some articles of 
 furniture in it, and the landlord 
 breaks it open and takes possession, 
 the tenant cannot maintain trespass ; 
 his remedy, if any, is by indictment 
 for forcible entry. Turner v. Mey- 
 ?MO«,7Moore,574; IBing.loS. See 
 Hillary v. Gay, 6 C. &. P. 284; 
 Newton v. Harland, 1 Scott, N. R. 
 474 ; 1 M. & G. 644 ; Burling v. 
 Read, 11 Q. B. 904 ; Pollen-Y. Brew- 
 er, 7 C. B., N. S. 371. 
 
 A person using land as a garden 
 for more than twenty years, under 
 permission from the owner to do so, 
 in order to keep it from trespassers, 
 the owner from time to time com- 
 ing on the land and giving direc 
 
 Digitized by Microsoft® 
 
 tions as to cutting the trees : — Held, 
 that he had not got a title so as to 
 enable him to sue a claimant under 
 the owner for a forcible entry. Allen 
 V. England, 3 F. & F. 49— Erie. 
 
 The court refused to grant a man- 
 damus to compel magistrates to 
 hear a complaint and act summari- 
 ly under the statutes relating to 
 forcible entry and detainer. Davy, 
 Ex parte, 2 D., N. S. 24— B. C— 
 Wightman. 
 
 Conviction hy Justices. \ — The 8 
 Hen. 6, c. 9, was intended to give a 
 summary jurisdiction in case of 
 forcible detainer, after an unlawful 
 entry ; and a conviction by justices 
 on that statute, merely gtating an 
 entry and a forcible detainer, is in- 
 sufficient. Rex V. Oakley, 4 B. & 
 Ad. 307 ; 1 N. & M. 58. 
 
 The 15 R. 2, c. 2, gave justices a 
 summary j urisdiction to convict, on 
 their own view, for a forcible detain- 
 er after a forcible entry, lb. 
 
 In a conviction under 8 Hen. 6, c. 
 9, for a forcible detainer, it miist 
 appear on the face of the conviction 
 that there was an unlawful entry. 
 Rex V. Wilson, 5 N. & M. 164; 3 
 A. & E. 817 ; 1 H. & W. 387. 
 
 A conviction under a forcible de- 
 tainer, on the view merely of the 
 justices, without any evidence of an 
 unlawful entry, is bad, even though 
 information and complaint of an un- 
 lawful expulsion are stated. lb. 
 
 In a conviction for a forcible de- 
 tainer, under 8 Hen. 6, c. 9, where 
 the magistrates proceed upon view, 
 it is not necessary to set out the 
 particular facts presented to their 
 view. Rex v. Wilson, 3 N. & M. 
 753 ; 1 A. & E. 627. 
 
 At the time of the conviction, 
 the defendant tendered to the jus- 
 tices a traverse of the force com- 
 plained of; and a few days after 
 an inquisition was held before the 
 magistrates, for the purpose of try- 
 ing the alleged force by a jury, 
 who, after hearing evidence ad- 
 duced by both parties, found the 
 
172 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 defendant guilty ; and the magis- 
 trates then gave restitution. A re- 
 turn was made to the court, on cer- 
 tiorari, of the conviction and inqui- 
 sition. The latter was then enti- 
 tled an inquisition, by the oaths of 
 twelve &c., before &c., who say 
 upon their oaths that &c. ; stating 
 an unlawful entry and detainer, but 
 not reciting any complaints made 
 by the prosecutor : — ^Held, that the 
 inquisition was founded on the con- 
 viction, and could not be sustaiijed, 
 the conviction being void ; and that 
 the inquisition, even if looked at 
 alone, was bad, as it did not state 
 any complaint, nor by what author- 
 ity the j ury was summoned. lb. 
 
 In order to justify a conviction by 
 justices, under 15 Rich. 2, c. 2, and 
 8 Hen. G, c. 9, it must be proved 
 before them that there was, as well 
 an unlawful entry on the premises 
 as a forcible detainer. Attwood v. 
 Joliffe, 3 New Sess. Cas. 116— Q. B. 
 
 Where a conviction stated that 
 justices had convicted A. of forci- 
 ble detainer upon their own view, and 
 that afterwards a complaint was 
 made to the justices that A. forci- 
 bly entered the premises, and that 
 notice of such complaint was given 
 to A., who received the notice, but 
 said nothing, and then went on 
 to allege that the justices received' 
 evidence on oath of the unlawful 
 entry : — Held, that the conviction 
 was bad, for not shewing that A. 
 had been summoned to answer the 
 charge of the unlawful entry, or that 
 he had any opportunity afforded 
 him of defending himself against 
 such charge. lb. 
 
 V. having been in possession of 
 a house from May to October, the 
 defendants called there, and, insist- 
 ing that V. had no title, proceed- 
 ed to take the keys out of the room 
 doors. Upon their doing so, V. 
 gave them into custody for stealing 
 the keys'; but the magistrate refus- 
 ed to detain them. They then re- 
 turned to the house, and having 
 procured a sledge-hammer, forced 
 
 the inner door of the hall, and 
 some having entered that way, and 
 some by a staircase window, over- 
 powering the prosecutor's opposi- 
 tion, and furnished with a hatchet 
 and other weapons, after a strug- 
 gle which caused a disorderly crowd 
 to assemble, they ejected the prose- 
 cutor and his servants. From the 
 commencement of the proceedings 
 till the conclusion, a female servant 
 of the prosecutors was in the kitch- 
 en : — Held, assuming the title of 
 the prosecutor to have been bad, 
 and that the defendants had acted 
 by the orders of those who had a 
 good title to the premises, that the 
 evidence was sufficient to support a 
 conviction of the defendants for a 
 forcible entry and riot. Reg. v. 
 Studd, 14 W. R. 806 ; 14 L. T., N. 
 S. 633— C. C. R. 
 
 Restitution.l — An averment in an 
 indictment for a forcible entry that 
 the prosecutor was seised, is suffi- 
 cient to found an application for a 
 writ of restitution ; and it needs not 
 be shewn by the prosecutor that he 
 still continued to be seised. Rex v. 
 Dillon, 2 Chit. 314. 
 
 A judge at the assizes may, in 
 his discretion, refuse to award res- 
 titution, after an indictment for for- 
 cible entry and detainer has been 
 found by the grand jury, and the 
 court has no power to review his 
 decision. Reg. v. Harland, 1 P. & 
 D. 93 ; 8 A. & E. 826 ; 2 Lewin, C. 
 C.171; 2M.&Rob.l41. 
 
 In order to authorise a justice to 
 award restitution pursuant to an in- ( 
 quisition taken under 8 Hen. 6, c. 9, 
 for a forcible entry, the inquisition 
 should set forth the estate possessed 
 by the party in the property disput- 
 ed. Reg. V. Bowser, 8 D. P. C. 1 28 • 
 1 W. W. & H. 345. 
 
 Where the indictment is brought 
 before the Queen's Bench by certio- 
 rari, that court is bound, upon con- 
 viction, to award restitution. Rex 
 V. Wittiams, 4 M. & R. 471 ; 9 B. & 
 C. 549. 
 
 Digitized by Microsoft® 
 
FORGERY— STATUTES. 
 
 173 
 
 So the court is bound to award a 
 restitution, as a consequence of 
 quashing a conviction for an unlaw- 
 ful detainer under 8 Hen. 6, c. 9, 
 which is bad, without inquiring in- 
 to the legal or equitable claim of 
 the respective parties. Hex v. Wil- 
 son, 6 N. & M. 625 ; 3 A. & E. 817 ; 
 2 H. & W. 225. 
 
 For the mode of proceeding to 
 obtain restitution on application to 
 a judge, after indictment found, 
 but before trial, see Bex v. Hake, i 
 M. & R. 483. 
 
 An indictment charged that the 
 defendants into one messuage, then 
 and there being in the possession of 
 W. P., he W. P. then and there be- 
 ing also seised thereof, with force of 
 of arms, did enter, and W. P., from 
 the peaceable possession with force 
 and arms, did put out. After a con- 
 viction of the defendants : — Held, 
 that this was a sufficient averment 
 of the present seisin of W. P. to 
 warrant the court in awarding a 
 writ of restitution. Hex v. Hoare, 
 6 M. & S. 266. 
 
 XVn. FOKGERT. 
 
 1. Statutes, 173. 
 
 2. What is Forgerij, 174. 
 
 3. The Instrument, 176. 
 
 (a.) Bank Notes, 176. 
 
 (h) Bills of Exchange and Pro- 
 missory Notes, 182. 
 
 (c) Cheques, 188. 
 
 (i) Documents purporting to he 
 made Abroad, 189. 
 
 (e) Court Rolls, 190. 
 
 (t) Debentures, 190. 
 
 fg) Deeds or Bonds, 190. 
 
 (h) Evidential Instruments, \9\, 
 
 (i) Exchequer Bills or Bonds, 
 191. 
 
 (j) India Bonds, Stock or Cer- 
 tificates, 193. 
 
 (]i.j Marriage Licenses and Cer- 
 tificates, 193. 
 
 (\) Orders and Proceedings of 
 
 Magistrates, 193. 
 
 (m) Records, Judicial and Cu- 
 
 rial Process, 1 94. 
 
 fn) Registers of Births, Mar- 
 riages and Deaths, 196. 
 
 fo^ Registries of Deeds, \'il. 
 
 (p) Seals of thj^h^jhm^lgl. 
 
 
 (uj 
 
 Stamps, 198. 
 Trade Marks, 199. 
 Transfer of Stock or Shares, 
 
 199. 
 Warrants, Orders, Under- 
 takings, Requests and Re- 
 ceipts for Goods or for 
 Money, 201. 
 PFffls, 212. 
 (v) Instruments otherwise desig- 
 nated, 2\ 3. 
 Obtaining Property upon Forged 
 Instruments, 214. 
 Parlies Indictable, 214. 
 Indictment, 21.5. 
 
 Allegation and Proof of Intent to 
 defraud, 220. 
 
 8. Jurisdiction to try, 222. 
 
 9. Election of Forgeries, 223. 
 10. Uttering, 223. 
 
 Evidence, 225. 
 
 Witnesses, 229. 
 
 Power to seize Forged Instruments 
 
 or Implements, 229. 
 Punishment, 229. 
 Costs of Prosecution, 229. 
 
 4. 
 
 5. 
 6. 
 
 7. 
 
 11. 
 12. 
 13. 
 
 14. 
 15 
 
 /wl 
 
 1 Statutes. 
 By 24 & 25 Vict. c. 95, and 11 
 Geo. 4 & 1 Will. 4, c. 66, the foL 
 lowing statutes as to forgery are eith- 
 er wholly or partially repealed, as un- 
 der mentioned, viz. : — 
 
 Statutes wholly repealed.^ — 5 Eliz. 
 c. 14 ; 21 Jac. 1, c. 26 ; 7" Geo. 2, c. 
 22 ; 13 Geo. 3, c. 79 ; 18 Geo. 3, c. 
 18 ; 33 Geo. 3, c. 30 ; 37 Geo. 3, c. 
 
 122 ; 41 Geo. 3 (U. K), c. 39 ; 41 
 Geo. 3, c. 57 ; 45 Geo. 3, c. 89 ; 52 
 Geo. 3, c. 138 ; 2 & 3 Will. 4, c. 
 
 1 23 ; 3 & 4 Will. 4, c. 44 ; 1 Will. 4 
 & 1 Vict. c. 84. 
 
 Statutes partially repealed.^ — 25 
 Edw. 3, stat. 5, c. 2; [the statute 
 of treasons only repealed as to the 
 seals) ; 1 Mar. stat. 2, c. 6 ; {this 
 statute is wholly repealed hy . 2 Will. 
 4, c. 34) ; 4 Will. & M. c. 4 ; 8 & 9 
 Will. 3, c. 20 ; 7 Ann. c. 21 ; 8 Geo. 
 1, c. 22 ; 12 Geo. 1, c. 31 ; 2 Geo. 2, 
 c. 25 ; 15 Geo. 2, c. 13 ; 31 Geo. 2, 
 c. 22 ; 4 Geo. 3, c. 25 ; 27 Geo. 3, c. 
 43 ; 43 Geo. 3, c. 139 ; 48 Geo. 3, 
 e. 1 ; 52 Geo. 3, c. 146 ; 4 Geo. 4, c. 
 76. 
 
 11 Geo. 4 & 1 Will. 4, c. 66, is 
 wholly^ repealed, except sect. 21, by 
 24 & 25 Vict. c. 95. 
 icrosoft® 
 
174 
 
 FORGERY. 
 
 /w/orce.]— 24 & 25 Vict. c. 98, 
 " is the consolidating statute of the 
 " law of England and Ireland, re- 
 "lating to indictable offences by 
 "forgery, in force, which, by s. 
 " 56, commenced and took effect 
 "on the 1st of November, 1861, 
 " and, by s. 55, nothing in the statute 
 " contained extends to Scotland ex- 
 " cept expressly therein provided." 
 
 2. What is forgery. 
 
 Forgery is the false making of 
 an instrument, which purports on 
 the face of it to be good and valid 
 for the purposes for which it was 
 created, with a design to defraud 
 any person or persons. Hex v. 
 Jones, 2 East, P. C. 991— Eyre. 
 
 In forgery there need not be an 
 exact resemblance ; it is suiBcient if 
 the instrument is prima facie fitted 
 to pass for a true instrument. Hex 
 V. Mliot, 1 Leach, C. C. 175, 179 ; 2 
 East, P. C. 951 ; S. P., Reg. v. Ma- 
 honey, 6 Cox, C. C. 487. 
 
 To make a mark in the name of 
 another person, with intent to de- 
 fraud the person whose name is as- 
 sumed, is forgery. Hex v. Dunn, 1 
 Leach, C. C. 57 ; 2 East, P. C. 962. 
 
 If a person authorises another to 
 sign a note in his name, dated at a 
 particular place, and made payable 
 at a banker's; and the person in 
 whose name it is drawn represents 
 it to be the name of another person, 
 with intent to defraud, and no such 
 person as the note and the repre- 
 sentation import exists, this is forg- 
 ery, for it is a false making of an 
 instrument in the name of a non- 
 existing person. Hex v. Parhes, 2 
 Leach, C. C. 775 ; 2 East, P. C. 963, 
 992. 
 
 It is forgery to alter a document 
 which a party has previously forg- 
 ed himself ; and he may be convict- 
 ed of forging and uttering it in the 
 state to which it was so altered. 
 Hex V. Kinder, 2 East, P. C. 856. 
 
 Where a party receives a blank 
 cheque,, signed with directions to 
 fill in a certain amount, and he 
 
 fraudulently fills in a larger 
 amount, and devotes the proceeds 
 of the check to other purposes, he 
 is guilty of forgery. Heg. v. Wil- 
 son, 2 Cox, C. C. 426 ; 1 Den. C. 
 C. 284; 17 L. J., M. C. 82. 
 
 So filhng in a form of cheque al- 
 ready signed, with blanks left in it 
 for the sum, without authority, is 
 forgery. Flower v. Shaw, 2 C. & 
 K. 703— Wilde. 
 
 A person may be convicted of 
 forging with intent to defraud, al- 
 though the note was found in his 
 custody when apprehended, and 
 never, in fact, uttered by him. Hex 
 V. Crocher, 2 Leach, C. C. 987 ; 2 
 K R. 87 ; R. & R. C. C. 97. 
 
 Forging an order from one to 
 charge certain goods contained in a 
 schedule to his account, and to ap- 
 propriate part of the proceeds to 
 the forger's own use, done with in- 
 tent to defraud the principal, is forg- 
 ery at common law, though the 
 fraud is not effected. Hex v. Ward, 
 2 East, P. C.'861. 
 
 A person who has for many years 
 been known by a name which was 
 not his own, and afterwards as- 
 sumes his real name, and in that 
 name draws a bill of exchange, is 
 not guilty of forgery, though the 
 bill was drawn for the purposes of 
 fraud. Hex v. Aichles, 1 Leach, C. 
 C. 438 ; 2 East, P. C. 968. 
 
 Assuming and using a fictitious 
 name, though for the purposes of 
 concealment and fraud, will not 
 amount to forgery, if it was not for 
 that very fraud, or system of fraud, 
 of which the forgery forms a part. 
 Hex V. Bontien, R. & R. G. C. 260. 
 
 It is not forgery fraudulently to 
 procure a party's signature to a doc- 
 ument, the contents of which have 
 been altered without his knowledge. 
 Heg. V. Ghadwick, 2 M. & Rob. 545 
 — Rolfe. 
 
 Or forgery fraudulently to induce 
 a person to execute an instrument 
 on a misrepresentation of its con- 
 tents. Heg. V. Collins, 2 M. & Rob 
 461. 
 
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WHAT IS FORGERY. 
 
 175 
 
 The forgery of a railway pass to 
 allow the bearer to pass free on a 
 railway, is a forgery at common 
 law ; but the uttering of it per se is 
 not a misdemeanor. Reg. v. Boult, 
 2 0. & K. 604— Cresswell. 
 
 Uttering a forged instrument, 
 the forgery of which is only a forg- 
 ery at common law, is no offence, 
 unless some fraud is actually perpe- 
 trated by it; and where in such a 
 case the indictment contained some 
 counts for forging the instrument 
 and others for uttering it, and the 
 defendant was acquitted on the 
 counts for the forgery and convict- 
 ed on tha counts for the uttering, 
 judgment was arrested. Ih. 
 
 To forge a certificate of service, 
 sobriety and good conduct at sea, 
 with intent to deceive and defraud, 
 is an offence indictable at common 
 law. Reg. v. Toshack, T. & M. 207 ; 
 1 Den. C. C. 592 ; 13 Jur. 1011 ; 4 
 Cox, C. C. 38. 
 
 A forgery must be of some docu- 
 ment or writing ; therefore the paint- 
 ing an artist's name in the corner 
 of a picture, in order to pass it off 
 as an original picture by that art- 
 ist is not a forgery. Reg. v. Gloss, 
 Dears. & B. 0. G. 460 ; 3 Jur., N. 
 S. 1309 ; 27 L. J., M. 0. 54 ; 7 Cox, 
 C. C. 494. 
 
 Forging testimonials as to his 
 character, whereby he obtained a 
 situation as a police constable, is a 
 forgery at common law. Req. v. 
 Moah, Dears. & B. C. C. 550 ; 4 
 Jur., N. S. 464 ; 27 L. J., M. C. 206 ; 
 7 Cox, C. C. 503. 
 
 B. was in the habit of selling cer- 
 tain powders, wrapped in printed 
 papers, describing their use, and 
 having a printed signature at the 
 end. The prisoner had a number 
 of wrappers printed in imitation of 
 B.'s, so as to deceive persons of or- 
 dinary observation, and to make 
 them believe them tobe B.'s ; hcthen 
 sold spurious powders, wrapped up 
 in these papers, as B.'s powders ; and 
 all this was done with intent to de- 
 fraud:— Held, that there was no 
 Digitized by 
 
 forgery. Reg. v. Smith, Dears. & B. 
 C. C. 666 ; 4 Jur., N. S. 1003 ; 27 
 L. J., M. C. 225. 
 
 The 11 & 12 Vict. c. 63, directs 
 that the votes for the election of 
 members of local boards of health 
 shall be given by means of voting 
 papers, and by s. 25, " if any voter 
 cannot write, he shall affix his 
 mark at the foot of a voting paper 
 in the presence of a witness, who 
 shall attest and write the name of 
 the voter against the same, as well 
 as the initials of such voter against 
 the name of every candidate for 
 whom the voter intends to vote." 
 The defendants, who took an act- 
 ive part on behalf of some of the 
 candidates, went to the houses of 
 voters who were marksmen, to as- 
 sist in filling up the voting papers, 
 and having obtained the express or 
 implied consent of voters or mem- 
 bers of their families, filled up the 
 papers with the proper names and 
 marks of the voters, and jjut their 
 own names as attesting witnesses 
 without obtaining the actual signa- 
 tures or marks of the parties them- 
 selves : — Held, that this did not con- 
 stitute the offence of forgery at com- 
 mon law. Reg. v. Hartshorn, 6 
 Cox, C. C. 395— Crompton. 
 
 A man may be convicted of forg- 
 ing and uttering an instrument, 
 with intent to defraud, though there 
 is no person in a situation to be de. 
 frauded by his act. Reg. v. Nash, 
 2 Den. C. C.'493 ; 16 Jur. 553 ; 21 
 L. J., M. C. 147— Maule. 
 
 Making a false entry in what pur- 
 ports to be a banker's pass-book, 
 with intent to defraud, is a forgery. 
 Reg. V. Smith, L. & C. 168. 
 
 But where a paying teller of a bank 
 falsely and with intent to defraud, 
 enters in the proof book of the bank, 
 kept by him, a certain sum of mon- 
 ey, as assets of the bank, whereas 
 the assets do not amount to that 
 sum, he is not guilty of forgery by 
 the law of England. Windsor, In 
 re, 6 B. & S. 622 ; 10 Cox, C. C. 118 ; 
 34 L. J., M. C. 163 ; 11 Jur., K S. 
 Microsoft® 
 
176 
 
 FORGERY. 
 
 807 ; 13 W. R. 653 ; 12 L. T., K. S. 
 307. 
 
 A person was indicted for forging 
 a testimonial to his character as a 
 schoolmaster, and the indictment 
 also charged him with having utter- 
 ed the forged document. The jury 
 acquitted him of the forgery, but 
 found him guilty of the uttering 
 with intent to obtain the emolu- 
 ments of the place of schoolmaster, 
 and to deceive the prosecutor : — 
 Held, that this finding of the jury 
 amounted to an ofience at common 
 law, of which the prisoner was 
 properly convicted. Meg. v. Shar- 
 man. Dears. C. C. 285 ; 18 Jur. 157 ; 
 23 L. J., M. C. 51 ; 6 Cox, C. C. 312. 
 
 Where a person had made alter- 
 ations in a diploma of the College of 
 Surgeons', to make it appear to be a 
 document issued by the college to 
 him, and had hung it up in his 
 house, and showed it to certain per- 
 sons, it was found, by the case re- 
 served for the court, that he had no 
 intent, in forging, or in the uttering 
 and publishing, to commit any par- 
 ticular fraud or specific wrong to 
 any individual : — Held, that he could 
 not be convicted of forgery or of ut- 
 tering. Reg. V. Hodgson, Dears. & 
 
 B. C. C. 3 ; 2 Jur., N. S. 453 ; 25 L. 
 J., M. C. 78 ; 7 Cox, C. C. 122. 
 
 A master of a ship having made 
 and signed a report of a seaman's 
 character upon his discharge, in the 
 form sanctioned by the Board of 
 Trade, the shipping-master gave 
 the seaman a copy. The seaman 
 went to the prisoner, who, for 2s. M., 
 made and delivered to him a fac- 
 simile of the genuine copy of the re- 
 port, except that the letter " G.," 
 which signified " good," was sub- 
 stituted for the letter " M., which 
 signified " middling" :— Held, that 
 the prisoner was guilty of an oifence 
 within 17 & 18 Vict. c. 104, s. 176. 
 Reg. V. Wilson, Dealrs. & B. C. C. 
 558 ; 4 Jur., N. S. 670 ; 27 L. J.,M. 
 
 C. 230. 
 
 A man was indicted for forging a 
 banker's pass book, with intent to 
 
 defraud. He was treasurer to a 
 trades union, which was an illegal 
 society. It was contended that such 
 a society, having no legal existence, 
 could possess no funds, and, there- 
 fore, could not be defrauded : — Held, 
 that the objection of illegality was 
 applicable only to the summary pro- 
 ceedings before magistrates provid- 
 ed by the Friendly Societies Act ; 
 but did not extend to deprive the 
 society of its remedy by indictment. 
 Reg. V. Dodd, 18 L. T., K S. 89— 
 Lush. See Reg. v. Stainer, 1 L. R., 
 C. C. 230 ; 39 L. J., M. C. 54, and 
 32 & 33 Vict. c. 61. 
 
 3. The Instrument. 
 
 The invalidity of an instrument 
 must appear upon the face of it, in 
 order to found an objection to an 
 indictment for forgery. Rex v. 
 Macintosh, 2 East, P. C. 942 ; 2 
 Leach, C. C. 883. 
 
 Where the instrument forged is 
 legal on the face of it, the prisoner 
 may be legally convicted, although 
 it appears from extraneous evidence 
 that the forged instrument would 
 not have been valid in law. Reg. 
 V. Pike, 2 M. C. C. 70 ; 3 Jur. 27. 
 
 (a) Bank Notes. 
 Forging, altering or uttering.^ — 
 By\24 & 25 Yict. c. 98, s. 12, " who- 
 " soever shall forge or alter, or 
 " shall ofier, utter, dispose of or put 
 " off, knowing the same to be forged 
 " or altered, any note or bill of 
 " exchange of the Bank or England 
 "or of the Bank of Ireland, or of 
 " any other body corporate, compa- 
 " ny or person carrying on the busi- 
 " ness of bankers, commonly called a 
 "bank-note, a bank bill of ex- 
 " change or a bank post bill, or 
 " any indorsement on or assignment 
 " of any bank-note, bank bill of ex- 
 " change or bank post bill, with 
 " intent to defraud, shall be guilty 
 "of felony, and, being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for life, or for any 
 
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BANK NOTES. 
 
 177 
 
 " term not less than five years (27 & 
 " 28 Vict. c. 47), or to be imprison- 
 " ed for any term not exceeding 
 "two years, with or without hard 
 " labour, and with or without soli- 
 " tary confinement." 
 
 By s. 13, " whosoever, without 
 "lawful authority or excuse (the 
 " proof whereof shall lie on the par- 
 " ty accused), shall purchase or re- 
 " ceive from any other person, or 
 " have in his custody or possession, 
 " any forged banls-note, bank bill 
 " of exchange or bank post bill, or 
 " blank bank-note, blank bank bill 
 " of exchange or blank bank post 
 " bill, knowing the same to be for- 
 " ged, shall be guilty of felony, 
 " and, being convicted thereof, 
 " shall be liable, at the discretion 
 " of the court, to be kept in penal 
 " servitude for any term not exceed- 
 " ing fourteen years, and not less 
 " than five years (27 & 28 Vict. c. 
 " 47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour." 
 
 Giving to a confederate a forged 
 bank-note, that he may utter it, is 
 a disposing and putting away there- 
 of. Bex V. Palmer, R. & R. C. C. 
 72 : 1 N. R. 96 ; 2 Leach, C. C. 978 ; 
 And see Brooks v. Warwick, 2 Stark, 
 389. 
 
 The changing the figure 2 into 
 the figure 5, in a bank-note (220Z. 
 to 2b0l.), is forging and counter- 
 feiting a bank-note. Hex v. Daw- 
 son, 1 Stra. 19 ; 2 East, P. C. 978. 
 
 A forged bank-note, although 
 the word "pounds" is omitted in 
 the body of it, and there is no water- 
 mark in the paper, is a counter- 
 feit note for the payment of money. 
 Hex V. Miot, 2 East, P. C. 951. 
 See Sanderson v. Piper, 7 Scott, 
 408; 5 Bing. N. C. 425; 2 Am. 58; 
 3 Jur. 773. 
 
 So, the altering a banker's one 
 pound note, by substituting the 
 word " ten" for the word " one," 
 is a forgery, although it thereby 
 purports to be a note for ten 
 Fish. Dig.— 13. 
 
 " pound," and not pounds. Jiex v. 
 Post, R. & R. C. C. 101. 
 
 Expunging, by a certain liquor, 
 a notification of payment of part 
 of the contents of a bank bill, writ- 
 ten on the face of it, would sustain 
 an indictment on 8 & 9 Will. 3, c. 
 20, s. 36,' for rasing out an indorse- 
 ment on such bill. Sex v. Bigg, 2 
 East, P. C. 882 ; 3 P. Wms. 419. 
 
 The counterfeit making of any 
 part of a genuine note, which may 
 give it a greater currency, is forg- 
 ery ; therefore, if a note is made 
 payable at a country banker's, or 
 at his banker's in London, who 
 fails, it is forgery to alter the name 
 of that London banker to the name 
 of another London banker, with 
 whom the maker makes his other 
 notes payable after the failure of the 
 first. Hex V. Treble, 2 Taunt. 328; 
 2 Leach, C. C. 1040; R. & R. C. C. 
 164. 
 
 Engraving Plates for Notes of the 
 Bank of England or of Ireland."] — 
 By 24 & 25 Vict. c. 98, s. 14, " who- 
 " soever, without lawful authority 
 " or excuse (the proof whereof shall 
 "he on the party accused), shall 
 " make or use, or knowingly have in 
 " his custody or possession, any 
 " frame, mould or instrument for 
 " the making of paper with the 
 " words ' Bank of England' or 
 " ' Bank of Ireland,' or any part 
 " of such words intended to resem- 
 " ble and pass for the same, visible 
 " in the substance of the paper, or 
 " for the making of paper with 
 " curved or waving bar lines, or 
 " -ndth the laying wire lines thereof 
 " in a waving or curved shape, or 
 " with any number, sum or amount 
 " expressed in a word or words in 
 " roman letters, visible in the sub- 
 " stance of t]ie paper, or with any 
 " device or distinction peculiar to, 
 " and appearing in the substance of 
 " the paper used by, the Banks of 
 " England and Ireland respectively 
 " for any notes, bills of exchange or 
 
 Digitized by Microsoft® 
 
178 
 
 FORGERY. 
 
 " bank post bills of such banks re- 
 " spectively, or shall make, use, 
 " sell, expose to sale, utter or dis- 
 " pose of, or linowingly have in his 
 " custody or possession, any paper 
 " whatsoever with the words ' Bank 
 " of England' or ' Bank of Ireland,' 
 " or any part of such words intend- 
 " ed to resemble and pass for the 
 " same, visible in the substance of 
 "the paper, or any paper with 
 " curved or waving bar lines, or 
 " with the laying wire lines thereof 
 " in a waving or curved shape, or 
 " with any number, sum or amount 
 " expressed in a word or word's in 
 " roman letters, appearing visible 
 " in the substance of the paper, or 
 " with any device or distinction pe- 
 " cuHar to, and appearing in the 
 " substance of the paper used by, 
 " the Banks of England and Ireland 
 " respectively, for any notes, bills 
 " of exchange or bank post bills of 
 " such banks respectively, or shall by 
 " any art or contrivance cause the 
 " words ' Bank of England' or ' Bank 
 " of Ireland," or any part of such 
 " words intended to resemble and 
 " pass for the same, or any device 
 " or distinction peculiar to, and ap- 
 " pearing in the substance of the pa- 
 " per used by, the Banks of Eng- 
 " land and Ireland respectively for 
 " any notes, bills of exchange or 
 " bank post bills of such banks re- 
 " spectively, to appear visible in 
 "the substance of any paper, or 
 " shall cause the numerical sum or 
 " amount of any bank-note, bank 
 " bill of exchange or bank post bill, 
 " blank bank-note, blank bank bill 
 "of exchange or blank bank post 
 " bill, in a word or words in roman 
 "letters, to appear visible in the 
 " substance of the paper whereon 
 "the same shall be written 
 " or printed, shall be guilty of fel- 
 " ony, and, being convicted thereof, 
 " shall be liable, at the discretion 
 " of the court, to be kept in penal 
 " servitude for any term not exceed- 
 "ing fourteen years, and not less 
 " than five years (27 & 28 Vict. c. 
 
 " 47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour." 
 
 By s. 15, " nothing in the last 
 " preceding section contained shall 
 " prevent any person from issuing 
 " any bill of exchange or promisso- 
 " ry note having the amount 
 " thereof expressed in guineas, or in 
 " a numerical figure or figures de- 
 " noting the amount thereof in 
 " pounds sterling, appearing visible 
 " in the substance of the paper upon 
 " which the same shall be written 
 " or printed, nor shall prevent any 
 " person from making, using or sell- 
 " ing any paper having waving or 
 " curved lines or any other devices in 
 " the nature of water-marks visible 
 " in the substance of the paper, not 
 " being bar lines or laying wire 
 " lines, provided the same are not 
 " so contrived as to form the 
 " groundwork or texture of the pa- 
 " per, or to resemble the waving or 
 " curved laying wire lines or bar 
 " lines of the water-marks of the 
 " paper used by the banks of Eng- 
 " land and Ireland respectively." 
 
 Engraving Sank Notes or Bills 
 on P^oies.]— By 24 & 25 Vict. c. 
 98, s. 16, " whosoever, without law- 
 " ful authority or excuse (the proof 
 " whereof shall lie on the party ac- 
 " cused), shall engrave or in any- 
 " wise make upon any plate what- 
 " soever, or upon any wood, stone 
 " or other material, any promissory 
 " note, bill of exchange, or bank 
 " post bill, or part of a promissory 
 " note, bill of exchange, or bank 
 " post bill, purporting to be a bank- 
 " note, bank biU of exchange or 
 " bank post bill of the Bank of Eng- 
 " land or of the Bank of Ireland, 
 " or of any other body corporate, 
 " company or person carrying on the 
 " business of bankers, or to be a 
 " blank bank-note, blank promissory 
 " note, blank bill of exchange, or 
 " blank bank postbillof the Bank of 
 " England or of the Bank of Ireland, 
 " or of any such other body corpor- 
 
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BANK NOTES. 
 
 179 
 
 "ate, company or person as afore- 
 " said, or to be a part of a. bank-note, 
 " promissory note, -bank bill of ex- 
 " change or bank post bill of tbe 
 " Bank of England or of the Bank 
 " of Ireland, or of any such other 
 " body corporate, company or per- 
 " son as aforesaid, or any name, 
 "word or character resembling or 
 " apparently intended to resemble 
 " any subscription to any bill of ex- 
 " change or promissory note issued 
 " by the Bank of England or the 
 " Bank of Ireland, or by any such 
 " other body corporate, company or 
 '^person aforesaid, or shall use any 
 " such plate, wood, stone or other 
 " material, or any other instrument 
 " or device, for the making or print- 
 " ing any bank-note, bank bill of 
 " exchange or bank post bill, or 
 " blank bank-note, blank bank bill 
 " of exchange, or blank bank post 
 " bill, or part of a bank-note, bank 
 " bill of exchange or bank post bill, 
 " or knowingly have in his custody 
 " or possession any such plate, wood, 
 " stone or other material, or any 
 " such instrument or device, or shall 
 " knowingly oflfer, utter, dispose of 
 " or put oif, or have in his custody 
 " or possession, any paper upon 
 " which any blank bank-note, blank 
 " bank bill of exchange or blank 
 " bank post bill of the Bank of Eng- 
 "land or of the Bank of Ireland, or 
 " of any such other body corpor- 
 " ate, company or person as afore- 
 " said, or part of a bank-note, bank 
 " bill of exchange or bank post bill, 
 " or any name, word or character 
 " resembling or apparently intended 
 " to resemble any such subscription, 
 " shall be made or printed, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall be liable, af 
 " the discretion of the court, to be 
 " kept in penal servitude for any 
 " term not exceeding fourteen years, 
 " and not less than five years (27 & 
 " 28 Vict. c. 47), or to be impris- 
 " oned for any term not exceeding 
 " two years, with or without hard 
 " labour, arid with or without soli- 
 
 Digitized by Microsoft® 
 
 " tary confinement." (Former stat- 
 ute, 11 Geo. 4 & 1 Will. 4, c. 66, s. 
 18.) 
 
 A. cut out the centre part of a one- 
 pound note of a banking company, 
 and took the ornamental border to 
 an engraver, representing that he 
 \^anted to have a plate made to this 
 border, intending to fill up the cen- 
 tre with the title of some oil or cos- 
 metic, of which the firm in whose 
 employ he represented himself to be 
 were the vendors. A plate was ac- 
 cordingly made and delivered to 
 him, when he was immediately ap- 
 prehended with the plate in his pos- 
 session, and was tried and convicted 
 upon an indictment framed upon 
 the 11 Geo. 4 & 1 Will. 4, c. 66, s. 
 1 8 :— Held, that by the word " note " 
 is not meant merely the obligation 
 or writing, but the whole paper or 
 thing which circulates as a note ; 
 and therefore the border or orna- 
 mental margin is part of a note with- 
 in the meaning of the statute. JReff. 
 V. Keith, Dears. C. C. 486 ; 1 Jur., 
 N.S. 454; 24 L. J., M. C. 110; 3 
 C. L. R. 692 ; 6 Cox, C. C. 533. 
 
 In order to ascertain whether 
 that which was engraved on the 
 plate purported to be part of the 
 note, extrinsic evidence is admis- 
 sible, and for that purpose the jury 
 may compare the plate with a gen- 
 uine note of the company. lb. 
 
 By 24 & 25 Vict. c. 98, s. 17, 
 " whosoever, without lawful author- 
 " ity or excuse (the proof whereof 
 " shall Ue on the party accused), 
 " shall engrave or in anywise make 
 " upon any plate whatsoever, or upon 
 " any wood, stone or other material, 
 " any word, number, figure, device', 
 " character or ornament, the im- 
 " pression taken from which shall 
 " resemble or apparently be intend- 
 " ed to resemble any part of a bank- 
 " note, bank bill of exchange or 
 " bank post bill of the Bank of Eng- 
 " land or of the Bank of Ireland, or 
 " of any other body corporate, com- 
 " pany or person carrying on the 
 ' business of bankers, or shall use, or 
 
180 
 
 FORGERY. 
 
 ' knowingly have in his custody or 
 ' possession, any such plate, wood, 
 ' stone or other material, or any 
 ' other instrument or device for the 
 ' impressing, or -making upon any 
 ' paper or other material any word, 
 ' number, figure, character or orna- 
 ' ment which shall resemble or ap- 
 ' parently be intended to resemble 
 ' any part of a bank-note, bank bill 
 ' of exchange or bank post bill of 
 ' the Bank of England or of the 
 ' Bank of Ireland, or of any such 
 ' other body corporate, company or 
 ' person as afpresaid, or shall know- 
 ' ingly ofier, utter, dispose of or put 
 ' off, or have in his custody or pos- 
 ' session, any paper or other ma- 
 ' terial upon which there shall be 
 ' an impression of any such matter 
 ' as aforesaid, shall be guilty of fel- 
 ' ouy, and, being convicted thereof, 
 ' shall be liable, at the discretion of 
 ' the court, to be kept in penal ser- 
 ' vitude for any term not exceeding 
 ' fourteen years, and not less than 
 'five years (27 & 28 Vict. c. 47), 
 ' or to be imprisoned for any term 
 ' not exceeding two years, with or 
 ' without hard labour, and with or 
 ' without solitary confinement. 
 
 Making or Imitating Banh Paper J\ 
 —By s. 18, " whosoever, without 
 ' lawful authority or excuse (the 
 ' proof whereof shall lie on the party 
 ' accused), shall make or use any 
 ' frame, mould or instrument for 
 ' the manufacture of paper, with 
 ' the name or firm of any body cor- 
 ' porate, company or person carry- 
 'ing on the business of bankers 
 ' (other than and except the Banks 
 ' of England and Ireland respect- 
 ' ively), appearing visible in the 
 ' substance of the paper, or know- 
 ' ingly have in his custody or pos- 
 ' session any such frame, mould or 
 ' instrument, or make, use, sell, ex- 
 ' pose to sale, utter or dispose of, or 
 ' knowingly have in his custody or 
 ' possession, any paper in the sub- 
 ' stance in which the name or firm 
 ' of any such body corporate, com- 
 
 " pany or person shall appear visi- 
 " ble, or by any art or contrivance 
 " cause the name or firm of any 
 " such body corporate, company or 
 " person to appear visible, in the 
 " substance of the paper upon which 
 " the same shall be written or print- 
 " ed, shall be guilty of felony, and, 
 " being convicted thereof, shall be 
 " liable, at the discretion 5f thecourt, 
 "to be kept in penal servitude for 
 " any term not exceeding fourteen 
 " years, and not less than five years 
 " (27 & 28 Vict. c. 47), or to be 
 " imprisoned for any term not ex- 
 " ceeding two years, with or with- 
 " out hard labour, and with or with- 
 " out solitary confinement." 
 
 Engraving Plates for Foreign 
 Bills or Notes.'\ — By s. 19, " whoso- 
 " ever, without lawful authority or 
 " excuse (the proof whereof shall 
 "lie on the party accused), shall 
 " engrave or in anywise make upon 
 " any plate whatsoever, or upon any 
 " wood, stone, or other material, 
 " any bill of exchange, promissory 
 " note, undertaking or order for 
 " payment of money, or any part of 
 " any bill of exchange, promissory 
 " note, undertaking or order for 
 " payment of money, in whatsoever 
 " language the same may be ex- 
 " pressed, and whether the same 
 " shall or shall not be or be in- 
 " tended to be under seal, purport- 
 " ing to be the bill, note, uridertak- 
 " ing or order, or part of the bill, note, 
 " undertaking or order, of any for- 
 " eign prince, or state, or of any 
 " minister or officer ■ in the ser- 
 " vice of any foreign prince or 
 " state, or of any body corporate 
 " or body of the like nature con- 
 " stituted or recognized by any 
 " foreign prince or state, or of any 
 " person or company of persons res- 
 "ident in any country not under 
 " the dominion of her Majesty, or 
 " shall use, or knowingly have in 
 " his custody or possession, any 
 " plate, stone, wood or other ma- 
 " terial upon which any such for- 
 
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BANK NOTES. 
 
 181 
 
 " eign bill," note, undertaking or or- 
 " der, or any part thereof, shall be 
 " engraved or made, or shall know- 
 " ingly oifer, ntter, dispose of or 
 " put off, or have iii his custody or 
 " possession, any paper upon which 
 " any part of any such foreign bill, 
 " note, undertaking or order shall be 
 " made or printed, shall be guilty 
 " of felony, and, being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for any term not 
 " exceeding fourteen years, and not 
 " less than five years (27 & 28 Vict. 
 ^ c. 47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " raent." (Previous enactments, 43 
 Geo. 3, c. 119, ss. 1, 2, and 11 Geo. 
 4 & 1 Will. 4, c. 66, s. 19.) 
 
 Making on a glass plate a posi- 
 tive impression of an undertaking of 
 a foreign state for the payment of 
 money by means of photography, 
 without lawful aiithority or excuse, 
 is a felony within this statute. Seff. 
 V. Rinaldi, L. & C. 330 ; 33 L. J., 
 M. C. 28 ; 12 W. R. 87 ; 9 L. T., 
 N., S. 395. 
 
 Three foreigners were indicted for 
 feloniously engraving and making 
 two parts of a promissory note of the 
 Emperor of Russia. The plates 
 were engraved by an Englishman, 
 who was an innocent agent in the 
 transaction. Two of the prisoners 
 only were present at the time when 
 the order was given for the engrav- 
 ing of the plates ; but they said 
 they were employed to get it done 
 by a third person, and there was 
 some evidence to connect -the third 
 prisoner with the other two in sub- 
 sequent parts of the transaction. 
 The questions left to the jury were 
 — first, whether the other two, who 
 gave the order for the engraving, 
 knew the nature of the instrument ; 
 and secondly, whether all three con- 
 curred in the order given. The 
 judge told the jury that, in order 
 
 to find all three 
 
 guilty, 
 
 be satisfied that they jointly em- 
 ployed the engraver, but that it 
 was not necessary that they should 
 all be present when the order was 
 given, as it would be sufficient if 
 one first communicated with the 
 other two, and that all three con- 
 curred in the emplojmient of the en- 
 graver. The jury found the two 
 guilty who gave the order. The 
 third prisoner was acquitted. Reg. 
 V. Mazeau, 9 C. & P. 676— Patte- , 
 son. 
 
 The 11 Geo. 4 & 1 Will. 4, c. 66 
 s. 18, applied to plates of promis- 
 sory notes of persons carrying on 
 the business of bankers in the prov- 
 ince of Upper Canada. Reg. v. 
 Hannon, 9 C. & P. 11 ; 2 M. C. C. 
 77. 
 
 The 24 & 25 Vict, c, 98, s. 16, 
 extends to the engraving in Eng- 
 land without authority of notes 
 purporting to be notes of a banking 
 company carrying on business in 
 Scotland only, notwithstanding that 
 s. 55 enacts that nothing in the act 
 contained shall extend to Scotland. 
 Reg. V. Brackenridge, 1 L. R., C. 
 C. 133 ; 37 L. J., N. C. 86 ; 16 W. 
 R. 816; 18 L. T., N. S. 369 ; 11 
 Cox, C. C. 96. But see 37 L. J., 
 M. C. 88, n., which throws con- 
 siderable doubts upon the soundness, 
 ■consistency and tenability of this 
 decision. 
 
 Z. was indicted for feloniously 
 having in his possession a litho- 
 graphic stone, on which was en- 
 graved a portion of a Dutch coup- 
 on. In the presence of an agent of 
 the Dutch consulate, and of the 
 person who signed the coupons, and 
 after Z. had been told that if he 
 had had anything to do with litho- 
 graphing it would be better for him 
 to tell it, he made a statement : — 
 Held, that it was admissible against 
 him. Reg. v. Zeigeri, 10 Cox, C. C. 
 555— Willes. 
 
 A second lithograiDhic stone was 
 
 found in his lodgings, in respect of 
 
 which another indictment had been 
 
 they must preferred against him : — Held, that 
 
 igitized by Microsoft® 
 
182 
 
 FORGERY. 
 
 it was competent for the prosecu 
 tion to give evidence on the trial of 
 the first indictment of what was on 
 the second stone. lb. 
 
 (b) Bills of Exchange and Promis- 
 sory Notes. 
 Statute.]— Bj 24 &. 25 Yict. c. 
 98, s. 22, " whosoever shall forge or 
 " alter, or shall oifer, utter, dispose 
 " of or put off, knowing the same to 
 '' be forged or altered, any bill of 
 " exchange, or any acceptance, in- 
 " dorsement or assignment of any 
 " bill of exchange, or any promis- 
 " sory note for the payment of mon- 
 " ey, or any indorsement or assign- 
 " ment of any such promissory note, 
 " with intent to defravid, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for life, 
 " or for any term not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not ex- 
 " ceeding two years, with or with- 
 " out hard labour, and with or with- 
 " out soUtary confinement." 
 
 What.] — To constitute the forg- 
 ery of a bill of exchange, the instru- 
 ment must be a complete forging ; 
 an acceptance to an instrument in 
 the form of a bill, but without the 
 drawer's name, is not within the 
 statute. JReg. v. Butterwick, 2 M. 
 & Rob. 196— Parke. 
 
 Putting an address to the name 
 of a drawer of a bill of exchange 
 while the bill is in the course of 
 completion, with intent to make the 
 acceptance appear to be that of a 
 different existing person, is forgery. 
 Reg. V. Blenkinsop, 1 Den. C. C. 
 276; 2 C. &K. 531; 17 L. J., M. 
 C. 62 ; 2 Cox, C. C. 420. 
 
 A document in the ordinary form 
 of a bill pf exchange, but requiring 
 the drawee to pay to his own order, 
 and purporting to be indorsed by 
 the drawer, and accepted by the 
 drawee, cannot, in an indictment 
 for forgery and uttering, be ti'eated 
 
 as a bill of exchange. JReg. v. Bart- 
 lett, 2 M. & Rob. 362— Erskine. 
 
 An instrument drawn by A. upon 
 B., requiring him to pay the order 
 of C. a certain sum, at a certain 
 time, " without acceptance," is a 
 bill, and may be so described in an 
 indictment for forgery. Reg. v. 
 Kinnear, 2 M. & Rob. 117— Patte- 
 son. 
 
 A forged bill of exchange, given in 
 payment to one of two known part- 
 ners, may be laid to be forged with 
 intent to defraud that one, the part- 
 nership dealing having been con- 
 ducted by him only. Reg. v. Han- 
 son, 2 M. C. C. 245 ; Car. & M. 334. 
 
 A bill of exchange made, payable 
 to A., B., C, D. or order, execu- 
 trixes. The indictment charged, 
 that the prisoner forged on the back 
 of a bill a certain forged- indorse- 
 ment, which indorsement was as 
 follows (naming one of the execu- 
 trixes): — Held, a forged indorse- 
 ment. Reg. V. Winterhottom, 2 C 
 & K 37 ; 1 Den. C. C. 41. 
 
 An indictment for uttering a forg- 
 ed bill of exchange is supported by 
 proof of uttering an instrument in 
 form of a bill with a forged accept- 
 ance on it, though there is no per- 
 son named as drawee in the bill, 
 Reg. V. Hawkes, 2 M. C. C. 60. See 
 Peto V. Reynolds, 9 Exch. 410 ; S. 
 O. (in error), 11 Exch. 418; and 
 Fielder v. Marshall, 9 C. B., N. S. 
 606. 
 
 An instrument payable to the 
 order of A., and directed " at 
 Messrs. P. & Co., bankers," may 
 be described as a bill of exchange 
 in an indictment for forgery. Reg. 
 V. Smith, 2 M. C. C. 295. 
 
 A writing directed to A. & Co., 
 requiring them to pay the bearer 
 on demand a sum of money, is not, 
 on an indictment for forgery, a bill 
 of exchange or an order for the 
 payment of money. Reg. v. Gw- 
 ry, 2 M. C. C. 218. 
 
 Where a prisoner fraudulently 
 used the name of another person 
 for the purposes of his trade, and 
 
 Digitized by Microsoft® 
 
BILLS OF EXCHANGE. 
 
 183 
 
 afterwards accepted a bill in that 
 name : — Held, that he could not be 
 convicted of forgery, unless when 
 he first assumed the fictitious name 
 he contemplated the making of 
 that specific bill. Reg. v. Whyte, 
 5 Cox, C. C. 290— Alderson and 
 Talfourd. 
 
 The acceptance to what purported 
 to be a bill of exchange was forged. 
 At the time, however, this was so 
 forged, the document had not been 
 signed by the drawer : — Held, that 
 the document, not having the sig- 
 nature of the drawer attached to 
 it at the time of the acceptor's 
 name was forged, was not a bill of 
 exchange. Meg. v. Mopsey, 11 
 Cox, C. C. 143— Chambers, C. S. 
 
 Foreign.^ — The forging and ut- 
 tering a Prussian treasury note for 
 the payment of one dollar was 
 within 43 Geo. 3, c. 139, s. 1. Rex 
 V. Goldstein, 7 Moore, 1; 3 B. & 
 
 B. 201 ; 10 Price, 88 ; R. & R. C. 
 
 C. 473. 
 
 The 43 Geo. 3, c. 139, made to 
 prevent forgery in Great Britain of 
 foreign securities, was not to be un- 
 derstood to require that such secu- 
 rities should possess the technical 
 properties required by the law of 
 England, it being sufficient if they 
 imported on the face of the whole 
 instrument an undertaldn^or order 
 for payment of money. lb. 
 
 The forging of an indorsement 
 in this country, o;i a bill drawn 
 abroad on a person in this country, 
 and payable in this country, was 
 an offence within 39 Geo. 3, c. 63. 
 Reg. V. Roberts, 7 Cox, C. C. 422; 
 7 Ir. C. L. R. 325— C. C. R. 
 
 Specific acts of Forgery.^ — The 
 forging a note which, for want of a 
 signature, was incomplete, was not 
 within the statute which made 
 forging notes capital. Rex v. Pate- 
 man, R. & R. C. C. 455. 
 
 A bill drawn in fictitious names, 
 where there are no such persons ex- 
 isting as the bill imports, may be a 
 
 forgery. Rex v. WUkes, 2 East, 
 P. C. 957. 
 
 Forging a bill or a note, purport- 
 iDg to be payable to A. B. or order, 
 is a complete offence, though. there 
 is no indorsement upon it in A. B.'s 
 name. Rex v. Rirket, Byl. Bills, 
 441. 
 
 Forging a bill or a note for less 
 than 20s. or 51., which does not 
 comply with the requisites of 17 
 Geo. 3, c. 30, or any other bill or 
 note the legislature has declared 
 void, is not within the statutes 
 against forgery. Rex v. Moffatt, 1 
 Leach, C. C. 431 ; 2 East, P. C. 
 954. 
 
 On an indictment for forging a 
 note, it appeared that it was not 
 payable to the bearer on demand, 
 or payable in money ; that the 
 maker only promised to take it in 
 payment, and that the requisitions 
 of the 17 Geo. 3, c. 30, were not 
 complied with : — Held, that the 
 forgery of such an instrument was 
 not the subject of an indictment at 
 common law. Rex v. Burke, R. 
 & R. C. C. 496. 
 
 Where a prisoner was indicted 
 for forging a bill, and the bill was 
 
 payable to or order : — :Held, 
 
 that there must be a payee ; forg- 
 ing an instrument payable to 
 
 or order is not sufficient. Rex v. 
 R. & R. C. C. 195. 
 
 And forging on unstamped papei 
 a bill or a note which requires a 
 stamp, is as much an offence as if 
 it was on stamped paper. Rex'^. 
 Sawkemood, 2 T. R. 606, n. ; S. P. 
 Rex V. Mortwh, 2 East, P. C. 955 
 Rex V. Recidist, 2 Leach, C. C. 703 
 2 East, P. C. 956. 
 
 It was not necessary that a note 
 should be negotiable, in order to be 
 a note within 2 Geo. 2, c. 25, so as 
 to be the subject of an indictment 
 for forging or uttering it. Rex v. 
 Box, R. & R. C C. 300 ; 6 Taunt. 
 325. 
 
 An indictment stating the tenor 
 or a note is sustained by proof that 
 the attestation of the witness, and 
 
 Digitized by Microsoft® 
 
184 
 
 FORGERY. 
 
 the words " M. W., her mark," 
 were added after the prisoner's sig- 
 nature, though on the same occa- 
 sion. Jiex V. Dunn, 2 East, P. C. 
 976. ■ 
 
 A promissory note for the pay- 
 ment of one guinea in cash, or 
 Bank (X England note, was not a 
 note for the payment of money 
 within 2 Geo. 2, c. 25. Hex v. 
 WUcocks, 2 Russ. G & M. 457. 
 
 Discharging a genuine indorse- 
 ment, and inserting another, is 
 altering the indorsement, and forg- 
 ery, liex r. JBirkett, R. & R. C. 
 C. 251. 
 
 Altering a hill from a lower to a 
 higher sum is forging it ; and a 
 person might have been indicted 
 on 7 Geo. 2, c. 22, for forging such 
 an instrument, although the statute 
 had the word " alter " as well as 
 " forge." Rex v. Teaque, R. & R. 
 C. C. 33 ; 2 East, P. C. 979. 
 
 If a person, having the blank 
 acceptance of another, is authorized 
 to write on it a bill of exchange for 
 a limited amount, and he writes a 
 bill of exchange for a larger 
 amount, with intent to defraud 
 either the acceptor or any other 
 person; this is forgery. Rex v. 
 SaH, 7 C. & P. 652 ; 1 M. C. C. 
 486. 
 
 What is or is not a false making 
 of a bill of exchange, is a question 
 of law. Ih. 
 
 A., being in want of 1,000?., ap- 
 plied to B., who drew a bill for that 
 amount, which A. accepted, pay- 
 able at three months after date. 
 In a few days B. came to A., and 
 said that he could not get the 
 1,000?. bill discounted, as it was 
 too large, and proposed that two 
 bills for 500?. each should be sub- 
 stituted; one for 500?. was drawn 
 by B., and accepted by A. : B., up- 
 on this, pretended to destroy the 
 1,000?. bill in A.'s presence, but did 
 not in fact destroy it ; on the con- 
 trary, he altered it from a bill at 
 three, to a bill at twelve months : 
 — Held, that this was forgery in B., 
 
 with intent to defraud A. Rex v. 
 AtJcinson, 7 C. & P. 669— Park. 
 
 Ry Adoption of Fcdse or Ficti- 
 tious Names or Firms.'] — It is fel- 
 ony to forge the name of a person, 
 although such person never existed. 
 Rex V. Rolland, 1 Leach, C. C. 83 ; 
 2 East, P. C. 958. 
 
 Writing the acceptance of an ex- 
 isting person to a bill of exchange 
 without authority, or the name of 
 a firm or person non-existing, in ac- 
 ceptance of a bill, with intent to 
 defraud, is forgery ; and if a person 
 Writes an acceptance in his own 
 name to represent a fictitious firm, 
 with intent to defraud, it is a forged 
 acceptance ; for if an acceptance 
 represents a fictitious firm, it is the 
 same as if it represented a fictitious 
 person. Ref/. v. Rogers, 8 C. & P. 
 629 — Bosanquet, Coleridge, and 
 Coltman. 
 
 If a person gets another to ac- 
 cept a bill in his true name, intend- 
 ing at the time to represent such 
 name to be the name of another 
 person, for the purposes of fraud, it 
 is a "forgery. Reg. v. Mitchell, 1 
 Den. C. C. 282. 
 
 ; A receipt indorsed on a bill of 
 exchange in a fictitious name is a 
 forgery, although it does not pur- 
 port to be the name of any particu- 
 lar person. Rex v. Taylor, 1 Leach, 
 C. C. 215; 2 East, P. C. 690. 
 
 In order to complete the offence 
 of a forgery, the signature need not 
 be an exact fac-simile of that of 
 the person represented, and a slight 
 variance, if not such as would un- 
 der the circumstances put a person 
 on inquiry, will not sufiice to take 
 such a forgery out of the definition 
 of the ofience, when applied to the 
 falsely putting the name of an ex- 
 isting person to an instrument, 
 without authority, for the purpose 
 of fraud. P. M. promised to get 
 his mother-in-law, " C. W.'s " name 
 to two notes. He brought the two 
 notes which in the meantime he 
 had got his wife to sign by her 
 
 Digitized by Microsoft® 
 
FALSE OR FICTITIOUS NAMES. 
 
 185 
 
 maiden name, " A. W.," and hand- 
 ed them over, saying, " Here are 
 the notes." On his trial for forg- 
 ing and littering these notes, the 
 jury found him guilty, being of 
 opinion that, when he got his wife's 
 signature to them, he intended to 
 pass them as the notes of his mother- 
 in-law : — Held, that the conviction 
 was right, and the question which 
 had been thus put to the jury was 
 the correct way of leaving it to 
 them. Reg. v. Mahony, 6 Cox, C. 
 C. 487. 
 
 Signing a money order in an as- 
 sumed name is forgery, if the name 
 was assumed to defraud the person 
 to whom such order was given, 
 though the prisoner had borne other 
 names unknown to the prosecutor, 
 who knew him only by the assumed 
 name. Rex v. Francis, R. & R. 
 C. C. 209. 
 
 If, on an indictment for forging 
 a bill of exchange it is proved that 
 the prisoner assumed a false name 
 for the purpose of pecuniary fraud, 
 connected with the forgery, the 
 drawing, accepting, or indorsing of 
 such bill of exchange, in such false 
 or assumed name, is forgerv. Rex 
 V. Peacock, R. & R. C. C. 278. 
 
 Where a name made use of by a 
 prisoner in a forged instrument is 
 assumed by him with the intention 
 of defrauding the prosecutor, it is 
 forgery, though the prisoner's real 
 name would have carried with it as 
 much credit as the assumed name. 
 Rex V. WMey, R. & R. C. C. 90. 
 
 Indorsing a bill in a fictitious 
 name is a forgery, though the bill 
 would have then been equally ne- 
 gotiable if indorsed by the prisoner 
 in his own name, if the fictitious 
 name was used in order to defraud. 
 Rex V. Marshall, R. & R. C. C. 75 ; 
 S. P. Rex V. Taft, 1 Leach, C. C. 
 172 ; 2 East, P. 'C. 959. 
 
 If there are two persons of the 
 same name, but of difierent descrip- 
 tions or additions, and one signs his 
 name with the description or addi- 
 tion of the other for the purpose of 
 Fish. Dig. — 14, 
 
 Rex V. Webb, 
 
 fraud, it is forgery. 
 Bayl. Bills, 432. 
 
 If a bill of exchange, payable to 
 
 A. or order, gets into the hands of 
 another person of the same name as 
 the payee, and such person, know- 
 ing that he was not the real person 
 in whose favour it was drawn, in- 
 dorses it, he is guilty of a forgery. 
 Mead v. Young, 4 T. R. 28. 
 
 A nurseryman and seedsman got 
 his foreman to accept two bills, the 
 acceptances having no addition, de- 
 scription, or address, and after- 
 wards, without the acceptor's 
 knowledge, he added to the direc- 
 tion a false address, but no descrip- 
 tion, and represented in one case 
 that the acceptance was that of a 
 customer, and in the other case that 
 it was tliat of a seedsman, there 
 being in fact no suph person at the 
 supposed false address : — Held, that 
 in the one case (the former) he was 
 not guilty of forgery of the accept- 
 ance; but that in tlie other case he 
 was. Reg. v. JE^jos, 4 P. & P. 81 
 — Willes. 
 
 Where a bill was drawn by the 
 prisoner, and addressed to " Mr. T. 
 B., Baize Manufacturer, Romford," 
 and purported to have been ac- 
 cepted by him, payable when due 
 at No. 40, Castle-street, Holborn, 
 and it was proved that no such per- 
 son resided at Romford, and that 
 there was no baize manufactory 
 there, and that he did not live at 
 Castle-street ; and the prisoner pro- 
 duced witnesses to prove that the 
 acceptance was of the handwriting 
 of T. B., but that he had never car- 
 ried on the business of a baize man- 
 ufacturer at Rojnford, nor resided 
 at Castle-street: — Held, that, al- 
 though this was a case of gross 
 fraud, it did not amount to forgery, 
 as the acceptance was written by a 
 person of the name of T. B. Rex 
 V. Webb, 6 Moore, 447, n. ; 3 B. & 
 
 B. 228 ; R. &"R. C. C. 405. 
 A prisoner named T. Story went 
 
 to the post-office at N., and inquired 
 for a letter directed to " T. Story, 
 
 Digitized by Microsoft® 
 
186 
 
 FORGERY. 
 
 post-office, Nottingham, to be left 
 till called for"; and a letter di- 
 rected to T. Storer, post-ofSce, was 
 given him, the post -master sup- 
 posing that the prisoner was the 
 person to whom it was directed, 
 not noticing the difference of names ; 
 the letter contained a money order, 
 of which the prisoner obtained pay- 
 ment on signing his own name on 
 the hack of it : — Held, that this 
 was not forgery. Hex v. Story, R. 
 & R. C. C. 81. 
 
 If the prisoner writes another's 
 name across a blank stamp, on 
 which, after he jls gone, a third per- 
 son, who is in league with him, 
 writes a bill of exchange : — Semble, 
 that this is not a forgery of the ac- 
 ceptance of a bill of exchange by 
 the prisoner. Heg. v. Cooke, 8 C. 
 & P. 582— Patteson. 
 
 Putting oif a bill of exchange of 
 A., an existing person, as the bill 
 of exchange of A., a fictitious per- 
 son, is a felonious uttering of the 
 bill of a fictitious drawer. Reg. v. 
 NisUtt, 6 Cox, C. C. 320— Will- 
 iams. 
 
 Under Presumption or Assump- 
 tion of Authority.'] — If A. puts the 
 name of B. on a bill of exchange 
 as acceptor, without B.'s authority, 
 expecting to be able to meet it 
 when due, or expecting that B. will 
 overlook it ; this is forgery. But 
 if A. either had authority from B., 
 or, from the course of their deal- 
 ings, bona fide considered that he 
 had such authority, it is not for- 
 gery. Rex V. Forbes, 7 C. & P. 
 224 — Coleridge: S. P. Beg. v. 
 Parish, 8 C. & P. 94— Albinger. 
 
 The fact, that, on three or four 
 previous occasions, when he had 
 drawn bills in that way, the party 
 whose name was used had paid 
 them, even without remark or re- 
 monstrance, would- afford fair 
 ground for the belief that he had 
 such authority. Req. v. Beard, 8 
 C. & P. 143— Coleridge. 
 
 If a person, wishing to raise 
 
 money, puts the name of another 
 on a bill without his authority, in- 
 tending to pay the bill when due, 
 and believing that he should be 
 able to do so ; this is forgery. Tb. 
 
 So, if a person, relying on the 
 kindness of another (a near rela- 
 tion for instance), uses his name on 
 a bill without authority, trusting 
 that the person will pay it, rather 
 than there should be a criminal 
 prosecution on the subject; this 
 also is a forgery. lb. 
 
 If a person knows the acceptance 
 of a bill of exchange to be forged, 
 and uttered it as true, and believed 
 that his bankers, to whom he ut- 
 tered it, would advance money on 
 it, which they would not otherwise, 
 that is ample evidence of an intent 
 to defraud, and evidence upon 
 which a jury ought to act : and a 
 person is not the less guilty of a 
 forgery because he may intend 
 ultimately to take up the forged 
 bill, and may suppose that the 
 party whose name is forged will be 
 no loser ; and the fact that the bill 
 has been since paid by the forger 
 will make no difference, if the of- 
 fence was complete at the time of 
 the uttering. Reg. v. Geaxh, 9 C. 
 & P. 499— Parke'. 
 
 A letter which had passed through 
 the post-oflSce before an alleged forg- 
 ery, is admissible for the prisoner, 
 in order to shew that he supposed 
 he had a right to cause a name to 
 be signed. Reg. v. Clifford, 2 C. 
 & K. 202. 
 
 A letter from the prisoner to the 
 prosecutor left unanswered is sufiic- 
 ient to warrant the jury in presum- 
 ing a bona fide belief in an implied 
 authority. Reg. v. Beardsall, 1 F. 
 & F. 529— Campbell. 
 
 On an indictment for forging and 
 uttering a bill, knowing it to be 
 forged, it appearing that the person 
 whose name was used was informed 
 of it at the time, and did not repu- 
 diate it; the jury was directed to 
 acquit, though he was called as a 
 witness, and denied any previous 
 
 Digitized by Microsoft® 
 
FALSE OK FICTITIOUS NAMES. 
 
 187 
 
 authority. Reg. v. Smith, 3 P. & 
 F. 504— Byles. 
 
 Evidence to negative Authority.'] 
 If a bill purporting to be accepted 
 by J. K. is shewn to him, and he 
 declares it to be a good bill, that is 
 a suificient proof that he wrote the 
 acceptance. Rex v. Hevey, 1 Leach, 
 C. C. 232. 
 
 Proof that a prisoner on uttering 
 a note represented the maker as 
 living at a particular place, and in 
 a particular line of business, the 
 evidence that it is not that person's 
 note is sufficient to prove it a forg- 
 ery, especially if the prisoner is the 
 payee of the note ; and proof that 
 there is another person of the name 
 in a different line of business will 
 not make it necessary for the prose- 
 cutor to shew that it was not that 
 person's note. Rex v. Hampton, 1 
 M. C. C. 255. 
 
 Where a bill purported to be ac- 
 cepted by " Samuel , Knight, Mar- 
 ket-place, Birmingham " : — Held, on 
 an indictment for the forgery of the 
 acceptance, that the result of inqui- 
 ries made at Birmingham by the 
 prosecutor, who was not acquainted 
 with the place, was evidence for the 
 jury, though neither the best nor 
 the usual evidence given to prove 
 the non-existence of a party whose 
 name is used. Rex v. King, 5 C. 
 &r P. 123— Park and Parke. 
 
 The prisoners were indicted for 
 forging a bill of exchange. The 
 bill purported to be accepted by 
 one George Smith, and was direct- 
 ed to George Smith, draper, Birm- 
 ingham. The direction was in the 
 handwriting of the prisoner, White, 
 but the acceptance was not. George 
 Smith, a draper, at Birmingham, 
 proved that the acceptance was not 
 his ; that he had made personal in- 
 quiries, and consulted a directory, 
 and could not discover that there 
 was any other George Smith, a dra- 
 per, at Birmingham. Letters were 
 produced from White to Davis, in 
 
 which'the former requested the lat- 
 ter to get him blank bills, signed 
 by men of straw : — Held, first, that 
 there was evidence to go to the jury 
 that the George Smith who was 
 called was the only draper of that 
 name in Birmingham ; and, second- 
 ly, that there was evidence for the 
 jury that the name, George Smith, 
 in the acceptance was fictitious, and' 
 that the acceptance was not the 
 genuine acceptance of a man of 
 straw signing his real name. Reg. 
 V. White, 2 F. & P. 554— Cock- 
 burn, 
 
 On an indictment for uttering a 
 forged cheque, it is sufficient to dis- 
 prove the handwriting of the sup- 
 posed maker; and he need not be 
 called to disprove an authority to 
 others to use his name; circum- 
 stances shewing guilty knowledge 
 are enough. Reg. v. Hurley, 2 M. 
 &Rob. 473-Cresswell. 
 
 By Procuration.] — By 24 & 25 
 Vict. 0. 98, s. 24, "whosoever, 
 " with intent to defraud, shall draw, 
 " make, sign, accept, or indorse any 
 " bill of exchange or promissory 
 " note, by procuration or otherwise, 
 " for, in the name, or on the account 
 " of any other person, without law- 
 " ful authority, or excuse, or shall 
 " offer, utter, dispose of, or put off, 
 " any such bill or note so drawn, 
 " made, signed, accepted, or in- 
 " dorsed by procuration, or other- 
 " wise, without lawful authority or 
 " excuse as aforesaid, knowing the 
 " same to have been so drawn, 
 " made, signed, accepted, or in- 
 " dorsed as aforesaid, shall be guil- 
 " ty of felony." 
 
 Refore this Enactment.] — A pris- 
 oner falsely averring an authority 
 to indorse a bill of exchange for T. 
 Tomlinson, wrote on the back of 
 the bill, " Per procuration Thomas 
 Tomlinson, Emanuel White." The 
 bill was thereupon discounted, and 
 the prisoner went off with the mo- 
 
 Digitized by Microsoft® 
 
188 
 
 FORGERY. 
 
 ney :— Held, no forgery. Reg. v. 
 White, 1 Den. C. C. 208 ; 2 C. & 
 K. 404; 2Cox, C. C. 210. 
 
 (c) Cheques. 
 
 By 24 & 25 Vict, c 98, s. 25, 
 " whenever any cheque or draft on 
 " any banker shall be crossed with 
 " the name of a banker, or with 
 " two transverse lines with the words 
 " ' and company,' or any abbrevia- 
 "tion thereof, whosoever shall ob- 
 " literate, add to, or alter any such 
 " crossing, or shall offer, utter, dis- 
 " pose of, or put off any cheque or 
 " draft whereon any such oblitera- 
 "tion, addition, or alteration has 
 " been made, knowing the same to 
 " have been made, with intent, iii 
 " any of the cases aforesaid, to de- 
 " fraud, shall be guilty of felony, 
 " and, being convicted thereof, shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for life or for any term not 
 " less than five years (27 & 28 
 " Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard labour, 
 " and with or without solitary con- 
 " finement." {Previous enactment, 
 21 & 22 Vict. c. 79, s. 3.) 
 
 A forged cheque on the W. bank 
 was presented for payment at the 
 S. bank, where the supposed draw- 
 er never kept cash : — Held, that 
 this was sufficient evidence of an 
 intent to defraud the partners of 
 the bank, although there was no 
 probability of their paying the 
 cheque, even if it had been genuine. 
 Hex V. Crowther, 5 C. & P. 316— 
 Bosanquet. 
 
 A forged draft on a banker was 
 an order for the payment of money 
 within 7 Geo. 2, c. 22, although the 
 person whose name was forged 
 never kept cash with, or was known 
 to, the banker. Rex v. LockeU, 1 
 Leach, C. 0. 94 ; 2 East, P. C. 940. 
 
 On an indictment for forging a 
 cheque purporting to be drawn by 
 G. A. upon Messrs. J. L. & Co., 
 proof that no person named G. A. 
 
 keeps an account with or has any 
 right to draw on Messrs. J. L. & 
 Co., is prima facie evidence that G. 
 A. is a iictitious person. Rex v. 
 Backler, 5 C. & P. 118— Gaselee 
 and Parke. 
 
 A. gave to B., his clerk, a blank 
 cheque, and directed him to fill it 
 up with the amount of a bill of 
 exchange, and expenses, (for which 
 A. had to provide, and which 
 amount B. was to ascertain,) and 
 get the cheque cashed, and pay the 
 amount to Mr. W., and take up the 
 bill. The bill was for 156^. 9«. 9d, 
 the expenses about 10s. B. filled 
 up the cheque with the sum of 250^., 
 got it cashed, and kept the whole 
 amount, alleging that it was due 
 to him for salary : — Held, that this 
 was forgery, and that this was so 
 even if B. bona fide believed that 
 the sum of 250L was due to him 
 from A., or even if it was really due 
 to him. Reg. v. "Wilson, 2 C. & 
 K. 527; 1 Den. C. C. 284 ; 17 L. 
 J., M. G. 82 ; 2 Cox, C. C. 426. 
 
 The drawer of a cheque on a 
 bank which was duly honoured, 
 and returned to him by the bank, 
 afterwards altered his signature in 
 order to give it the appearance of 
 forgery, and to defraud the bank 
 and cause the payee of the cheque 
 to be charged with forgery : — Held, 
 that this alteration did not consti- 
 tute a forgery. Brittain v. Rank 
 of London, 3 F. & F. 465 ; 11 W. 
 R. 569 ; 8 L. T., N. S. 382— Q. B. 
 But see 2 Russ. C. & M. 719. 
 
 In an action by payee against 
 makers of a cheque, in which they 
 pleaded that they did not make the 
 cheque, their signatures were ad- 
 mitted, but it was open for the 
 defendants, that the defendants, 
 who were directors of a company 
 of which the plaintiff was secretary, 
 kept blank cheques, with their sig- 
 natures to them, in a book, and 
 that this cheque was one of those 
 filled up by the plaintiff without 
 authority. The judge intimated 
 that this would be a forgery, even 
 
 Digitized by Microsoft® 
 
DOCUMENTS MADE ABROAD. 
 
 189 
 
 though the whole sum the cheque 
 was drawn for was due to the 
 plaintifF. The plaintiff's counsel 
 elected to be nonsuited, and the 
 judge ordered the cheque to be 
 impounded in the hands of the 
 associate, but would not order the 
 plaintiff to be taken into custody, 
 as no evidence of any forgery had 
 been given, and the wliole matter 
 rested upon the statement of counsel 
 only. Flower v. Shaw, 2 C. & K. 
 703— Wilde, C. J. : S. P. Wright's 
 case, 1 Lewin, C. C. 135 — Bayley. 
 
 Upon an indictment for the forg- 
 ery of a cheque, dated Knighton, 
 and purporting to be drawn by 
 John Hust, it was proved that no 
 John Hust lived at Knighton who 
 would be likely to keep an account 
 with a banker .---Held, evidence to 
 go to the jury that John Hust was 
 a fictitious person. lieg. v. Ashhy, 
 2 F. & F. 560— Bramwell. 
 
 The practice was for a majority 
 of the officers of a parish to draw 
 cheques on the treasurer of a union ; 
 and one of their blank cheques, 
 filled up for 1^. 3s. 6c?., had a note 
 at the bottom — " Unless this cheque 
 is signed by a majority of the parish 
 oflicers, it will not be cashed." 
 This cheque was signed by one of 
 the ofiicers while it was for \l. 3s. 
 6c?. ; it was altered to 3?. 3s. 6c?., 
 and when cashed by the treasurer 
 had the signatures of a majority of 
 the ofiicers to it : — Held, that if the 
 cheque was fraudulently altered 
 when it had only one signature to 
 it, this was no forgery, as it 
 was then an incomplete instrument. 
 Reg. V. Turpin, 2 C. & K. 820— 
 Piatt. 
 
 Forging and uttering an indorse- 
 ment on a cheque, with a view to 
 get it cashed by the credit of the 
 name, will support a conviction for 
 forgery, although the cheque is 
 valid. Reg. v. Wardell, 3 F. & F. 
 82— Willes. 
 
 A cheque in which the order of 
 the words is ti-ansposed (e. g. to 
 " pay A. B. seventeen or bearer 
 
 pounds"), is still a cheque, and an 
 order for the payment of money, 
 for the forgery of which, an indict- 
 ment will lie. Reg. v. Boreham, 2 
 Cox, C. C. 189— Pollock. 
 
 (d) 
 
 to be 
 
 Digitized by Microsoft® 
 
 Documents purpoi-ting 
 iimde Airoad. 
 By 24 & 25 Vict. c. 98, s. 40, 
 " where the forging or altering any 
 " writing or matter whatsoever, or 
 " the offering, uttering, disposing 
 " of, or putting off any writing or 
 " matter whatsoever, knowing the 
 " same to be forged or altered, is in 
 " this act expressed to be an offence, 
 " if any person shall, in England or 
 " Ireland, forge or alter, or offer, 
 " utter, dispose of, or put off, know- 
 " ing the same to be forged or al- 
 " tered, any such writing or matter, 
 " in whatsoever place or country 
 " out of England and Ireland, 
 " whether under the dominion of 
 " her Majesty or not, such writing 
 " or matter may purport to be made 
 " or may have been made, and in 
 " whatever language the same or 
 " any part thereof may be expressed, 
 " every such person, and every per- 
 " son aiding, abetting, or counsell- 
 " ing such person, shall be deemed 
 " to be an offender within the mean- 
 " ing of this act, and shall be punish- 
 " able thereby in the same manner 
 " as if the writing or matter had 
 " purported to be made or had been 
 " in England or Ireland ; and if 
 " any person shall in England or 
 " Ireland forge or alter, or offer, 
 " utter, dispose of, or put off, know- 
 " ing the same to be forged or al- 
 " tered, any bill of exchange, or any 
 " promissory note for the payment 
 " of money, or any indorsement on 
 " or assignment of any bill of ex- 
 " change or promissory note for the 
 " payment of money, or any accept- 
 " ance of any bill of exchange, or 
 " any undertaking, warrant, order, 
 " authority, or request for the pay- 
 " ment of money, or for the delivery 
 " or transfer of any goods or se- 
 " curity, or any deed, bond, or writ- 
 
190 
 
 FOKGERY. 
 
 " ing obligatory for the payment of 
 " money (wliether such deed, bond, 
 " or writing obligatory .shall be 
 " made only for the payment of 
 " money, or for the payment of mo- 
 " ney together with some other pur- 
 " pose), or any indorsement on or 
 " assignment of any such undertak- 
 " ing, warrant, order, authority, re- 
 " quest, deed, bond, or writing ob- 
 " ligatory, in whatsoever place or 
 " country out of England and Ire- 
 " land, whether under the dominion 
 " of her Majesty or not, the money 
 " payable or secured by such bill, 
 " note, undertaking, warrant, order, 
 " authority, request, deed, bond, 
 " or writing obligatory may be or 
 " may purport to be payable, and 
 " in whatever language the same, 
 " or any part thereof, may be ex- 
 " pressed, and whether such bill, 
 " note, undertaking, warrant, order, 
 " authority, or request be or be not 
 " under seal, every such person, and 
 "■every person aiding, abetting, or 
 " counselling such person, shall be 
 " deemed to be an oifender within 
 " the meaning of this act, and shall 
 " be punishable thereby in the same 
 " manner as if the money had been 
 " payable, or had purported to be 
 " payable, in England or Ireland." 
 {Similar to W Geo. 4 & 1 Will. 4, 
 c. 66, s. 80.) 
 
 On an indictment for forging and 
 uttering a cheque or an order for 
 the payment of money, it appearing 
 that the cheque was dated as if 
 drawn abroad ; but there being 
 evidence, by comparison of hand- 
 writing, that it was drawn abroad, 
 and also evidence that he caused it 
 to be presented to a banker abroad, 
 through whom it was presented in 
 this country without a stamp : — 
 Held, that the prisoner might be 
 convicted of uttering it in this coun- 
 try, if he set it in circulation abroad. 
 Reg. V. Taylor, 4 F. & F. 511— 
 Pigott. 
 
 By 
 
 (e) Court Rolls. 
 24 & 25 Vict. c. 98, 
 
 s. 30, 
 
 " whosoever shall forge or alter, or 
 " shall offer, utter, dispose of, or 
 " put off, knowing the same to be 
 " forged or altered, any court roll, 
 " or copy of any court roll, relating 
 " to any copyhold or customary 
 " estate, with intent to defraud, shall 
 " be guilty 'of felony." 
 
 (f) Debentures. 
 By 24 & 25 Vict. c. 98, s. 26, 
 
 ■ whosoever shall fraudulently forge 
 
 ■ or alter, or shall offer, utter, dis- 
 
 ■ pose of, or put off, knowing the 
 
 • the same to be forged or fraud- 
 
 ■ ulently altered, any debenture is- 
 
 ■ sued under any lawful authority 
 
 • whatsoever, either within her Maj- 
 
 • esty's dominions or elsewhere, shall 
 
 ■ be guilty of feloiAy, and, being 
 
 ■ convicted thereof, shall be liable, 
 
 ■ at the discretion of the court, to 
 
 ■ be kept in penal servitude for any 
 
 • term not exceeding fourteen years, 
 
 ■ and not less than Bve years (27 & 
 
 ■ 28 Vict. c. 47), or to beimprison- 
 
 ■ ed for any term not exceeding two 
 ' years, with or without hard la- 
 bour, and with or without solita- 
 ry coniijiement." 
 
 (g) Deeds or Bonds. 
 By 24 & 25 Vict. c. 98, s. 20, 
 whosoever, with intent to defraud, 
 shall forge or alter, or shall offer, 
 utter, dispose of, or put off, know- 
 ing the same to be forged or al- 
 tered, any deed, or any bond or 
 writing obligatory, or any assign- 
 ment at law or in equity of any 
 sucli bond or writing obligatory, 
 or shall forge any name handwrit- 
 ing, or signature purporting to be 
 the name, handwriting, or signa- 
 ture of a witness attesting the 
 execution of any deed, bond, or 
 writing obligatory, or shall offer, 
 utter, dispose of, or put off any 
 deed, bond or writing obligatory 
 having thereon any such foro-ed 
 name, handwriting, or signature, 
 knowing the same to be forged 
 shall be guilty of felony, and be- 
 ing convicted thereof, shall be lia- 
 
 Digitized by Microsoft® 
 
EXCHEQUER BILLS OR BONDS. 
 
 191 
 
 " ble, at the discretion of the court, 
 " to be kept in penal servitude for 
 " life, or for any term not less than 
 " five years (27 & 28 Vict. c. 47), or 
 " to be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour, and with or with- 
 " out solitary confinement." {For- 
 mer provision, 11 Geo. 4 & 1 Will. 
 4, c. 66, s. 10.) 
 
 On an indictment for forgery of 
 an administration bond on adminis- 
 tration granted of the effects of S., 
 it was objected, that 22 & 23 Car. 
 2, c. 10, requiring the bond to be 
 given by the party to whom admin- 
 istration was granted, and not by 
 the party that was entitled to ad- 
 ministration, no forgery was made 
 out ; but the bond was a good bond 
 within the statute, having been giv- 
 en by the party to whom, in fact, 
 administration was granted: — Held, 
 that this was not a good objection. 
 Eeff. V. Barber, 1 C. & K. 434— 
 Gurney, Williams and Maule. 
 
 Forging a deed was within 2 Geo. 
 2, c. 25, s. 1 , although there may have 
 been subsequent directory provisions 
 by other statutes, that instruments 
 for the same purpose as such forged 
 deed shall be in a particular form, or 
 shall comply with certain requisites, 
 and the forged deed was not in that 
 form, and did not comply with those 
 requisites ; for the directory provis- 
 ions do not make the deed (although 
 out of the form prescribed, and with- 
 out the requisites) wholly void. Hex 
 V. Lyon, R. & R. C. C. 255. 
 
 A deed really executed by the 
 parties between whom it purports 
 to be made, but ante-dated with in- 
 tent fraudulently to defeat a prior 
 deed, is a forgery. Jieff. v. Ritson, 
 18 W. R. 73 ; 21 L. T.. N. S. 437 ; 
 39 L. J., M. CIO; 1 L. R., C. C. 
 200. 
 
 A. by deed, bearing date on the 
 7th of May, 1868, conveyed on that 
 day certain lands to B. in fee. Sub- 
 sequently, on the 26th of April, 
 1869, 0. produced a deed, bearing 
 date the 12th of March, 1868, pur- 
 
 porting to be a demise of the same 
 land for a long term of years, as 
 from the 25 of March, 1868, from 
 A. to C. The alleged lease was ex- 
 ecuted after A.'s conveyance to B., 
 and ante-dated for the purpose of 
 defrauding B. :— -Held, that A. and 
 C. were guilty of forgery. lb. 
 
 (h) Evidential Instruments. 
 
 By 24 & 25 Yict. o. 98, s. 29, 
 " whosoever shall forge or fraudu- 
 " lently alter, or shall offer, utter, 
 " dispose of, or put off, knowing the 
 " same to be forged or fraudulently 
 " altered, any instrument, whether 
 " written or printed, or partly writ- 
 " ten and partly printed, which is or 
 " shall be made evidence by any 
 " act passed or to be passed, and 
 " for which offence no punishment 
 " is herein provided, shall be guilty 
 " of felony, and, being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for any term not 
 " exceeding seven years, and not 
 " less than five years (27 & 28 Vict. 
 " c. 47), or to be imprisoned for any 
 "term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment." 
 
 An, indictment stating that the 
 prisoner forged a certain paper in- 
 strument, partly printed and partly 
 written, in the words and figures 
 following, that is to say, &c., was 
 bad in form, as it did not state what 
 the instrument was in respect of 
 which the forgery was committed, 
 nor how the party signing it had au- 
 thority to sign it. Rex v. Wilcox, R. 
 & R. C. C. 50. 
 
 (i) Exchequer Bills or Bonds. 
 By 24 & 25 Vict. c. 98, s. 8, " who- 
 " soever shall forge or alter, or shall 
 " offer, utter, dispose of, or put off, 
 " knowing the same to be forged or 
 " altered, any Exchequer bill or Ex- 
 " chequer bond or Exchequer de- 
 " benture, or any indorsement on or 
 " assignment of any Exchequer bill 
 
 Digitized by Microsoft® 
 
192 
 
 FORGERY. 
 
 ' or Exchequer bond or Exchequer 
 '• debenture, or any receipt or cer- 
 ' tificate for interest accruing there- 
 ' on, with intent to defraud, shall 
 ' be guilty of felony, and, being 
 ' convicted thereof, shall be liable, 
 ' at the discretion of the court, to 
 ' be kept in penal servitude for life, 
 ' or for any term not less than five 
 ' years (27 & 28 Vict. c. 47), or to 
 ' be imprisoned for any term not ex- 
 
 • ceeding two years, with or with- 
 
 ■ out hard labour, and with or with- 
 
 • out solitary confinement." 
 
 By s. 9, " whosoever, without law- 
 ' ful authority or excuse (the proof 
 ' whereof shall lie on the party ac- 
 ' cused), shall make, or cause or pro- 
 ' cure to be made, orshall aid or as- 
 ' sist in making, or shall knowingly 
 ' have in his custody or possession, 
 ' any frame, mould, or instrument 
 
 ■ having therein any words, letters, 
 
 ■ figures, marks, lines, or devices pe- 
 
 ■ cuUar to and appearing in the sub- 
 
 ■ stance of any paper provided or to 
 ' be provided or used for Exchequer 
 ' bills or Exchequer bonds or Ex- 
 ' chequer debentures, or any ma- 
 ' chinery for working any threads 
 ' into the substance of any paper, 
 ' or any such thread, and intended 
 ' to imitate such words, letters, fig- 
 ' ures, marks, lines, threads, or de- 
 ' vices, or any plate peculiarly 
 ' employed for printing such Ex- 
 ' chequer bills, bonds, or deben- 
 ' tures, or any die or any seal pe- 
 ' cuUarly used for preparing any 
 ' such plate, or for sealing such Ex- 
 ' chequer bills, bonds, or debentures, 
 ' or any plate, die, or seal intended 
 ' to imitate any such plate, die, or 
 ' seal as aforesaid, shall be guilty 
 ' of felony, and, being convicted 
 ' thereof, shall be liable, at the dis- 
 ' cretion of the court, to be kept 
 ' in penal servitude for any term 
 ' not exceeding seven years and not 
 ' less than five years (27 & 28 Vict. 
 ' c. 47), or to be imprisoned for any 
 ' term not exceeding two years, 
 ' with or without hard labour, and 
 
 ' with or without solitary confine- 
 ' ment." 
 
 By s. 10, " whosoever, without 
 ' lawful authority or excuse (the 
 ' proof whereof shall lie on the 
 'party accused), shall make, or 
 ' cause or procure to be made, or 
 ' aid or assist in making, any paper 
 ' in the substance of which shall ap- 
 ' pear any words, letters, figures, 
 ' marks, lines, threads or other de- 
 ' vices peculiar to and appearing in 
 ' the substance of any paper provid- 
 ' ed or to be provided or used for 
 ' such Exchequer bills, bonds, or 
 ' debentures, or any part of such 
 ' words, letters, figures, marks, 
 ' lines, threads, or other devices, 
 ' and intended to imitate the same, 
 
 ■ or shall knowingly have in his cus- 
 
 • tody or possession any paper what- 
 
 • soever in the substance whereof 
 
 • shall appear any such words, let- 
 
 ■ ters, figures, marks, lines, threads, 
 
 • or devices, as aforesaid, or any 
 
 ■ parts of such words, letters, fig- 
 ' ures, marks, lines, threads, or 
 
 ■ other devices, and intended to im- 
 
 ■ itate the same, or shall cause or as- 
 
 • sist in causing any such words, let- 
 
 • ters, figures, marks, lines, threads, 
 
 ■ or devices as aforesaid, or any 
 •part of such words, letters, fig- 
 
 ■ ures, marks, lines, threads, or other 
 
 • devices, and intended to imitate 
 
 • the same, to appear in the sub- 
 
 • stance of any paper whatever, or 
 ' shall take or assist in taking any 
 
 • impression of any such plate, die, 
 ' or seal as in the last preceding 
 ' section mentioned, shall be guilty 
 'of felony, and, being convicted 
 ' thereof, shall be liable, at the dis- 
 ' cretion of the court, to be kept in 
 ' penal servitude for any term not 
 'exceeding seven years, and not 
 'less than five years (27 & 28 
 'Vict. c. 47), or to be imprisoned 
 ' for any term not exceeding two 
 ' years, with or without hard la- 
 ' bpur, and with or without solitary 
 ' confinement." 
 
 By s. 11 , "whosoever without law- 
 
 Digitized by Microsoft® 
 
ORDERS OP MAGISTRATES. 
 
 193 
 
 " ful authority or excuse (the proof I By 26 & 27 Vict. c. 73, s. 13 
 
 • whereof shall lie on the party ac- 
 " cused), shall purchase or receive, 
 " or knowingly have in his custody 
 " or possession, any paper manufac- 
 " tured and provided by or under 
 " the directions of the Commission- 
 " ers of Inland Revenue or Com- 
 " missioners of her Majesty's Treas- 
 " ury, for the purpose of being used 
 " as Exchequer bills or Exchequer 
 " bonds or Exchequer debentures, 
 " before such paper shall have been 
 " duly stamped, signed, and issued 
 " for public use, or any such plate, 
 " die, or seal as in the last two pre- 
 " ceding sections mentioned, shall 
 " be guilty of a misdemeanor, and, 
 " being convicted thereof, shall be 
 " liable, at the discretion of the 
 " court, to be imprisoned for any 
 " term not exceeding three years, 
 " with or without hard labour." 
 
 (J) 
 
 Oertifi- 
 
 India Bonds, Stock, or 
 cates. 
 
 By 24 & 25 Vict. c. 98, s. 7, " who- 
 " soever shall forge or alter, or shall 
 " oifer, utter, disjDose of, or put off, 
 " knowing the same to be forged 
 " or altered, any bond, commonly 
 " called an East India bond, or any 
 " bond, debenture, or security issued 
 " or made under the authority of 
 " any act passed or to be passed re- 
 " lating to the East Indies, or any 
 "indorsement on or assignment of 
 " any such bond, or debenture, or 
 " security, with intent to defraud, 
 " shall be guilty of felony, and, be- 
 " ing convicted thereof, shall be lia- 
 " ble, at the discretion of the court, 
 " to be kept in penal servitude for 
 " life, or for any term not less than 
 " live years (27 & 28 Vict. c. 47), 
 " or to be imprisoned for any term 
 " not exceeding two years, with or 
 " without hard labour, and with or 
 " without solitary confinement." 
 . 25 & 26 Vict, c, 7, s. 14, " makes 
 " it felony to forge or utter certifi- 
 " cates of India stock, transferable 
 " at the Bank of England or of Ire- 
 " land." 
 
 Digitized by Microsoft® 
 
 forging India stock certificates or 
 " coupons is a felony." 
 
 By s. 14, " the personation of own- 
 " ers of India stock certificates or 
 " coupons is a felony." 
 
 By s. 15, " engraving upon plates 
 " of India stock certificates or cou- 
 " pons is a felony." 
 
 (k) Marriage Licences or Certificates. 
 
 By 24 & 25 Vict. c. 98, s. 35, 
 " whosoever shall forge or fraudu- 
 " ently alter any licence of or cer- 
 " tificate for marriage, or shall oifer, 
 " utter, dispose of, or put ofi" any 
 " such licence or certificate, know- 
 " ing the same to be forged or fraud- 
 " ulently altered, shall be guilty of 
 " felony, and, being convicted there- 
 " of, shall be liable, at the discretion 
 " of thfe court, to be .kept in penal 
 " servitude for any term not exceed- 
 " ing seven years, and not less than 
 "five years (27 & 28 Vict. c. 47), 
 " or to be imprisoned for any term 
 " not exceeding two years, with or 
 " without hard labour, and with or 
 " without solitary confinement." 
 (Former provision, 11 Geo. 4 & 1 
 Will. 4, c. 66, s. 20.) 
 
 If A. gives to B. a forged certifi- 
 cate of a pretended marriage be- 
 tv/een himself and B., in order that 
 B. may give it to a third party, A. 
 is not guilty of an uttering. Reg. 
 V. Heywood, 2 C. & K. 352— Alder- 
 son. 
 
 (1) Orders and Proceedings of Mag- 
 istrates. 
 By 24 & 25 Vict. c. 98, s. 32, 
 " whosoever, with intent to defraud, 
 " shall forge or alter, or shall ofier, 
 " utter, dispose of, or put off, know- 
 " ing the same to be forged or al- 
 " tered, any summons, conviction, 
 "order, or warrant of any justice 
 " of the peace, or any recognizance 
 " purporting to have been entered 
 " into before any justice of the 
 " peace, or other ofiicer authorized 
 " to take the same, or any examin- 
 " ation, deposition, affidavit, affirm- 
 
194 
 
 FORGERY. 
 
 ' ' ation, or solemn declaration, tak- 
 " en or made before any justice of 
 '■ the peace, shall be guilty of fel- 
 " ony, and, being convicted thereof, 
 " shall be liable, at the discretion of 
 " the court, to be kept in penal serv- 
 " itude for the term of five years 
 " (27 & 28 Vict. c. 47), or to be im- 
 " prisoned for any term not exceed- 
 " ing two years, with or without 
 " hard labour, and with or without 
 " solitary confinement." 
 
 Forging a magistrate's order to 
 pay money under hand only was 
 not a.capital offence, as the 17 Geo. 
 "2, c. 5, under which the magistrate 
 had jjower to make it, required it 
 to be under hand and seal. Rex v. 
 Rushworth, R. & R. C. C. 317 ; 1 
 Stark. 396. 
 
 And so, if it was addressed to 
 the treasurer of the county ,.instead 
 of the high constable, the magis- 
 trate having no power by the act 
 to make it upon the former. Ih. 
 
 The 7 Geo. 2, c. 22, was not con- 
 fined to commercial transactions, 
 but would have applied to an order 
 made by a justice to a high consta- 
 ble or treasurer to pay a reward. 
 Rex V. Graham, 2 East, P. C. 945. 
 
 An order was made under 48 Geo. 
 3, c. 75, s. 6, purporting on the face 
 of it to be an order of a magistrate 
 on the treasurer of a county, to al- 
 low one J. 0. the expenses of bury- 
 ing a dead body cast on shore : — 
 Held, that this was a forgery, al- 
 though there was no such magis- 
 trate in the county of the name of 
 the person who signed the order, 
 and although J. C. was not therein 
 stated to be a parish officer, or that 
 the expenses incurred were necessa- 
 ry. Rex V. Froude, 3 Moore, 645'; 
 7 Price, 609 ; 1 B. & B. 800 ; R. & 
 R. C. C. 389. 
 
 . Forging an order from a magis- 
 trate to a gaoler to discharge a 
 prisoner as upon bail having been 
 given, is forgery at common law. 
 Rex V. Harris, 1 M. C. C. 393 ; 6 
 C. & P. 129. 
 
 (m) Records, Judicial and Gurial 
 
 jPfOCGSS 
 
 By 24 & 25 Vict.' c. 98, s. 27, 
 whosoever shall forge or fraudu- 
 lently alter, or shall offer, utter, 
 dispose of, or put off, knowing 
 the same to be forged or fraudu- 
 lently altered, any record, writ, 
 return, panel, process, rule, or- 
 der, warrant, interrogatory, de- 
 position, affidavit, affirmation, re- 
 cognizance, cognovit actionem, or 
 warrant of attorney, or any orig- 
 inal document whatsoever, of or 
 belonging to any court of record, 
 or any bill, petition, process, no- 
 tice, rule, answer, pleading, inter- 
 rogatory, deposition, affidavit, af- 
 firmation, report, order, or decree, 
 or any original document whatso- 
 ever, of or belonging to any court 
 of equity or court of admiralty in 
 England or Ireland, or any docu- 
 ment or writing, or any copy of 
 any document or writing, used or 
 intended to be used as evidence 
 in any court in this section men- 
 tioned, shall be guilty of felony, 
 and being convicted thereof shall 
 be liable, at the discretion of the 
 court, to be kept in penal servi- 
 tude for any term not exceeding 
 seven years, and not less than five 
 years (27 & 28 Vict. c. 47), or to 
 to be imprisoned for any term not 
 exceeding two years, with or with- 
 out hard labour, and with or with- 
 solitary confinement." 
 By s. 28, " whosoever, being the 
 clerk of any court, or other officer 
 having the custody of the records 
 of any court, or being the deputy 
 of any such clerk or officer, shall 
 utter any false copy or certificate 
 of any record, knowing the same 
 to be false ; and whosoever, other 
 than such clerk, officer, or deputy, 
 shall certify any copy or certifi- 
 cate of any record of such clerk, 
 officer, or deputy ; and whosoever 
 shall forge or fraudulently alter, 
 or offer, utter, dispose of, or put 
 off, knowing the same to be forged 
 
 Digitized by Microsoft® 
 
RECORDS, ETC. 
 
 195 
 
 ' or fraudulently altered, any copy 
 ' or certificate of any record, or 
 ' shall offer, utter, dispose of, or 
 ' put off any copy or certificate of 
 ' any record having thereon any 
 ' false or forged name, handwriting, 
 ' or signature, knowing the same 
 ' to be false or forged ; and who- 
 ' soever shall forge the seal of any 
 ' court of record, or shall forge or 
 ' fraudulently alter any process of 
 ' any court other than such courts 
 ' as in the last preceding section 
 ' mentioned, or shall serve or en- 
 ' force any forged process of any 
 ' court whatsoever, knowing the 
 ' same to be forged, or shall deliver 
 ' or cause to be delivered to any 
 ' person any paper falsely purport- 
 ' ing to be any such process, or a 
 ' copy thereof, or to be any judg- 
 ' ment, decree, or order of any 
 ' court of law or equity, or a copy 
 ' thereof, knowing the same to be 
 ' false, or shall act or profess to 
 ' act under any such false process, 
 ' knowing the same to be false, 
 ' shall be guilty of felony." (Pun- 
 ishment as in preceding section.) 
 
 The practice of issuing (ancient 
 common law) county court proces- 
 ses in blank, for the attorneys to fill 
 up after they had been issued by the 
 county clerk, was highly irregular. 
 And semble, tliat the filling up of a 
 county court summons, or altering 
 a distringas into a summons, after 
 it had been so issued in blank, was 
 a forgery at common law. Jiex v. 
 GoUier, 5 C. & P. 160— Patteson. 
 One who was committed to gaol 
 under an attachment for a contempt 
 in a civil cause, counterfeited a pre- 
 tended discharge, as from his 'cred- 
 itor to the sheriff and gaoler, under 
 which he obtained his discharge : — 
 Held, a misdemeanor at common 
 law, although the attachment not 
 being for non-payment of money, 
 the order was in itself a mere nul- 
 ity, and no warrant to the sheriff 
 for his discharge. Hex v. Fawcett, 
 2 East, P. 0. 862. 
 
 To constitute the offence of act- 
 
 ing, or professing to act, under false 
 colour or pretence of the process of 
 the county court, it is not necessary 
 that there should be any actual pro- 
 cess in existence, or anything on the 
 face of it purporting to be such. 
 Seff. V. Evans, Dears. & B. 0. C. 
 236 ; 3 Jur., K S. 594 ; 26 L. J., 
 M. C. 92 ; 7 Cox, C. C. 293. 
 
 A notice to produce, given in a 
 pretended cause in a county court, 
 is not process of the court with- 
 in 9 & 10 Vict. c. 95, s. 57. Reg. 
 V. Gastle, Dears. & B. C. C. 363 ; 
 3 Jur., N. S. 1308 ; 27 L. J., M. 
 C. 70 ; 7 Cox, C. C. 875. 
 
 The prisoner had obtained a blank 
 form used in a county court for the 
 plaintiff to fill in particulars as in- 
 structions for issuing summonses ; 
 this he filled up and signed it, with- 
 out any authority, " W. G., regis- 
 trar of the Taunton Court." On 
 the back of the form he wrote, 
 " Unless the whole amount claimed 
 by A. R., draper of T., is paid on 
 Saturday, an execution warrant will 
 be immediately issued against you. 
 Witness my signature, W. G." The 
 prisoner sent the form thus filled up 
 to a person who was indebted to 
 him : — Held, that this was acting, 
 or professing to act, under the false 
 colour or pretence of the process of 
 the coupty court, within 9 & 10 
 Vict. c. 95, s. 57. Reg. v. Rich- 
 mond, Bell, C. C. 142 ; 5 Jur., K 
 S. 521 ; 28 L. J., M. C. 188 ; 7 W. 
 R. 417 ; 32 L. T. 139 ; 8 Cox, C. 
 C. 200. 
 
 But the 9 & 10 Vict. c. 95, s. 57, 
 does not apply to mere false repre- 
 sentations or assertion of authority 
 to receive a debt. Reg. v. Myott, 6 
 Cox, C. C. 406— Crompton. I 
 
 Accountant- General and other Of. 
 ficers' Namesl\ — By 24 & 25 Vict, 
 c. 98, s. 33, " whosoever, with in- 
 " tent to defraud, shall forge or al- 
 " ter any certificate, report, entry, 
 " indorsement, declaration of trust, 
 " note, direction, authority, instru- 
 " strument, or writing made or pur- 
 
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196 
 
 FORGERY. 
 
 " porting or appearing to be made 
 " by the accountant-general, or any 
 " other officer of the Court of Chan- 
 " eery in England or Ireland, or by 
 " any judge or officer of the Landed 
 " Estates Court in Ireland, or by 
 " any officer of any court in Eng- 
 " land or Ireland, or by any cashier 
 " or other officer or clerk of the 
 " Bank of England or Ireland, or 
 " the name, handwriting, or signa- 
 "tureofany such acoountant-gen- 
 " eral, judge, cashier, officer, or 
 " clerk as aforesaid, or shall offer, 
 " utter, dispose of, or put off any 
 " such certificate, report, entry, in- 
 " dorsement, declaration of trust, 
 " note, direction, authority, instru- 
 " ment, or writing, knowing the 
 " same to be forged or altered, shall 
 " be guilty of felony, and, being 
 " convicted thereof, shall be liable, 
 " at the discretion of the court, to be 
 " kept in penal servitude for any 
 " term not exceeding fourteen years, 
 " and not less than five years (27 & 
 " 28 Vict. c. 47), or to be impris- 
 " oned for any term not exceeding 
 " two years, with or without hard 
 " labour, and with or without sol- 
 " itary confinement." {Former pro- 
 vision, 12 Geo. 1, c. 32, s. 9.) 
 
 Forging a paper writing, purport- 
 ing to be an office copy of a report 
 of the accountant-general's, of mon- 
 ey being paid into the bank, and al- 
 so an office copy of a certificate of 
 one of the cashiers of the bank, was 
 within 12 Geo. 1, c. 32, s. 9. Rex 
 V. Gibson, 1 Leach, C. C. 61 ; 2 
 East, P. C. 899. 
 
 (n) Registers of Births, Marriages 
 and Deaihs. 
 
 By 24 & 25 Vict. c. 98, s. 36, 
 " whosoever shall unlawfully de- 
 " stroy, deface or injure, or cause or 
 " permit to be destroyed, defaced 
 " or injured, any register of births, 
 " baptisms, marriages, deaths or 
 " burials which now is or hereafter 
 " shall be by law authorized or re- 
 " quired to be kept in England or 
 " Ireland, or any part of any such 
 
 " register, or any certificate copy 
 " of any such register, or any part 
 " thereof, or shall forge or fraudu- 
 " lently alter in any such register 
 " any entry relating to any birth, 
 " baptism, marriage, death or bur- 
 " ial, or any part of any such regis- 
 " ter, or any certified copy of such 
 " register, or of any part thereof, or 
 " shall knowingly and unlawfully 
 " insert or cause or permit to be in- 
 " serted in any such register, or in 
 " any certified copy thereof, any 
 " false entry of any matter relating 
 " to any birth, baptism, marriage, 
 " death or burial, or shall knowing- 
 " ly and unlawfully give any false 
 " certificate relating to any birth, 
 " baptism, marriage, death or burial, 
 " or shall certify any writing to be 
 " a copy or extract from any such 
 " register, knowing such writing, or 
 " the part of such register whereof 
 " such copy or extract shall be so 
 " given, to be false in any material 
 " particular, or shall forge or coun- 
 " terfeit the seal of or belonging to 
 " any register office or burial board, 
 " or shall offer* utter, dispose of or 
 " put off any such register, entry, 
 " certified copy, certificate or seal, 
 " knowing the same to be false, 
 " forged or altered, or shall offer, 
 " utter, dispose of or put off any 
 " copy of any entry in any such 
 " register, knowing such entry to 
 " be false, forged or altered, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for life, or 
 " for any term not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not ex- 
 " ceeding two years, with or with- 
 " out hard labour, and with or with- 
 " solitary confinement." Pr&oious 
 •provision, 11 Geo. 4 & 1 Will. 4, c. 
 66, s. 20.) 
 
 By s. 37, " whosoever shall know- 
 " ingly and wilfully insert, or cause 
 " or permit to be inserted, in any 
 " copy of any register directed or 
 " required by law to be transmitted 
 
 Digitized by Microsoft® 
 
SEALS OF THE KINGDOM. 
 
 197 
 
 " to any registrar or other officer, 
 " any false entry of any matter re- 
 " lating to any baptism, marriage 
 '■ or burial, or shall forge or alter, 
 " or shall offer, utter, dispose of or 
 " put off, knowing the same to be 
 " tbrged or altered, any copy of any 
 " register so directed or required to 
 " be transmitted as aforesaid, or 
 " shall knowingly and wilfully sign 
 " or verify any copy of any register 
 " so directed or required to be trans- 
 " mltted as aforesaid, which copy 
 " shall be false in any part thereof, 
 " knowing the same to be false, or 
 " shall unlawfully destroy, deface 
 " or injure, or shall for any fraudu- 
 " lent purpose take from its place of 
 " deposit, or conceal, any such copy 
 " of any register, shall be guilty 
 " of felony." (Punishment as in 
 preceding section.) (Previous provi- 
 sion, 11 Geo. 4 & 1 Will. 4, c. 66, 
 s. 22.) 
 
 The latter act made it an offence 
 to utter any writing as and for a 
 copy of an entry in any register of 
 marriage made or kept by the vicar 
 of any parish in England : — Held, 
 first, that the indictment for that 
 offence need not set out the instru- 
 ment, as the words of 2 & 3 Will. 
 4, c. 123, s. 3, stating it to be suffi- 
 cient in forgery to describe the in- 
 strument as in an indictment for 
 stealing it, were applicable to such 
 a case, although the instrument it- 
 self could not be the subject of an 
 indictment for larceny ; and, sec- 
 ondly, that the judges could take ju- 
 dicial notice that the parish of Seigh- 
 ford, in the county of Stafford, is a 
 parish in England, and that the in- 
 dictment need not aver that fact. 
 Heg. V. Sharpe, 8 0. & P. 436— 
 Parke and Patteson. 
 
 (o) Hegistries of Deeds. 
 By 24 & 25 Vict. c. 98, s. 31, 
 " whosoever shall forge or fraudu- 
 " lently alter, or shall offer, utter, 
 " dispose of or put off, knowing the 
 " same to be foi-ged or fraudulently 
 " altered, any memorial, affidavit 
 
 " affirmation, entry, certificate, in- 
 " dorsement, document or writing 
 " made or issued under the provis- 
 " ions of any act passed or hereafter 
 " to be passed for or relating to the 
 " registry of deeds ; or shall forge 
 " or counterfeit the seal of or belong- 
 " ing to any office for the registry 
 " of deeds, or any stamp or impres- 
 " sion of any such seal ; or shall 
 " forge any name, handwriting or 
 " signature purporting to be the 
 " name, handwriting or signature of 
 " any person to any such memorial, 
 " affidavit, affirmation, entry, cer- 
 " tificate, indorsement, document or 
 " writing which shall be required or 
 " directed to be signed by or by vir- 
 " tue of any act passed or to be pass- 
 " ed., or shall offer, utter, dispose 
 " of or put off any such memo- 
 " rial or other writing as in this 
 " section before mentiqned, having 
 " thereon any such forged stamp or 
 " impression of any such seal, or 
 " any such forged name, handwrit- 
 " ing or signature, knowing the 
 " same to be forged, shall be guilty 
 " of felony, and, being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for any term not 
 " exceeding fourteen years, and not 
 "less than five years (27 & 28 
 "Vict. c. 47), or to be imprison- 
 " ed for any term not exceeding 
 " two years, with or without hard 
 " labour, and with or without soh- 
 " tary confinement." 
 
 (p) Seals of the Kingdom. 
 By 24 & 25 Vict. c. 98, s. 1, 
 " whosoever shall forge or counter- 
 " feit, or shall utter, knowing the 
 " same to be forged or counterfeited, 
 " the great seal of the United King- 
 " dom, her Majesty's privy seal, 
 " any privy signet of her Majesty, 
 "her Majesty's royal sign-manual, 
 " any of her Majesty's seals appoint- 
 " ed by the twenty-fourth article of 
 " the union between England and 
 " Scotland to be kept, used and con- 
 " tinned in Scotland, the great seal 
 
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198 
 
 FORGERY. 
 
 " of Ireland, or the privy seal of Ire- 
 " land, or shall forge or counterfeit 
 " the stamp or impression of any of 
 " the seals aforesaid, or shall utter 
 " any document or instrument what- 
 " soever having thereon or affixed 
 " thereto the stamp or impression 
 " of any such forged or counterfeit- 
 " ed seal, knowing the same to be 
 " the stamp or impression of such 
 " forged or counterfeited seal, or 
 " any forged or counterfeited stamp 
 " or impression made or apparently 
 " intended to resemble the stamp 
 " or impression of any of the seals 
 " aforesaid, knowing the same to be 
 " forged or counterfeited, or shall 
 " forge or alter, or utter, knowing 
 " the same to be forged or altered, 
 " any document or instrument kav- 
 " ing any of the said stamps or im- 
 ." pressions thereon or affixed there- 
 " to, shall be guilty of felony, and 
 " being convicted thereof, shall be 
 " liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for life, or for any term not 
 " less than five ye3,rs (27 & 28 Vict. 
 " c. 47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment." {Previous provision, 11 
 Geo. 4 & 1 Will. 4, c. 66, s. 2. 
 
 (q) Stamps. 
 
 Forging and Diterinff.] — Deliver- 
 ing a box, containing forged stamps, 
 to the party's own servant, that he 
 may carry them to an inn, to be for- 
 warded by the carrier to a custom- 
 er in the country is an uttering. 
 Hex V. OoUicott, R. & R. C. C. 212 ; 
 2 Leach, C. C. 1048 ; 4 Taunt. 300. 
 
 If a person engraves a counter- 
 feit stamp, similar in some parts, 
 dissimilar in others, to the legal 
 stamp, and, cutting out the dissimi- 
 lar parts, utters the similar parts 
 as genuine, concealing the space 
 whence the dissimilar part is cut 
 out ; this amounts to a forgery and 
 uttering. lb. 
 
 In describing the offence of forg- 
 
 ing a stamp, it is enough to de- 
 scribe it as a stamp provided and 
 used in pursuance of an act of par- 
 liament, without setting out the im- 
 pression or inscription, or naming 
 ing the amount of duty denoted 
 thereby. lb. 
 
 QuEere, whether a person who 
 took some of the stamps from a 
 writ, and then fixed them to anoth- 
 er writ of the same kind, and then 
 sold it for the purpose of its being 
 used by such persons as might buy 
 it from his vendee, was within 12 
 Geo. 3, c. 48? Bex v. Field, 1 
 Leach, C. C. 383. 
 
 Knowingly selling plate with the 
 king's mark forged on it, was not . 
 capital, but only subject to trans- 
 portation. Sex V. Hope, 1 M. C. C. 
 396. 
 
 Saving fake stamped Paper.] — 
 Where on indictment for having in 
 possession certain reams paper, with 
 counterfeit marks, and impressions 
 of certain stamps used to denote 
 the duty imposed in respect of pa- 
 per, on the covers or wrappers, it 
 was proved that the paper came 
 from the prisoner at Exeter, and 
 was brought thence by his servant 
 to Topsham, in the county of Devon, 
 and seized by the custom officer on 
 board a vessel at Topsham : — Held, 
 that this was in law a custody and 
 possession in the prisoner in the 
 county of Devon sufiicient to main- 
 tain the indictment in that county. 
 Hexv. Pim,n. & R. C. C. 425. 
 
 Transposing Stamps. 55 Geo. 3, 
 c. 184, s. 7, ararf 4 4- 5 Vict. c. 56.] 
 — It was the duty of a clerk in the 
 stamp ofBce to cut off the corners 
 of parchments which bore tho, blue 
 paper stamps allowed for as^^oiled 
 by the commissioners ofj^gtmps, and 
 to put the blue papei'^amps and 
 the small pieces of parchment so 
 cut off, and which were glued to 
 them, into the fire, without separat- 
 ing them. Instead of doing this he 
 separated a blue paper stamp from 
 
 Digitized by Microsoft® 
 
TRADE MARKS. 
 
 199 
 
 the small piece of parchment to 
 which it had b^en glued, and glued 
 it to a new skin of parchment, on 
 which the words " This indenture" 
 had been written. The jury found 
 that he had no fraudulent intent 
 when he cut the stamp from the 
 skin of parchment, but that he had 
 when he separated the blue paper 
 stamp from the small piece of parch- 
 ment ; and that he then intended to 
 apply the stamp to a parchment in- 
 tended to be used as an indenture : 
 — ^Held, that this was a capital of- 
 fence. Sex V. Smith, 5 C & P. 107 ; 
 1 M. C. C. 314. 
 
 It being uncertain whether the 
 stamp so separated was impressed 
 before or after 55 Geo. 3, c. 184 : — 
 Held, that the party might be prop- 
 erly convicted on a coimt stating 
 the stamp to be the impression of a 
 die made and used " in pursuance 
 of the statute made and provided 
 for denoting a certain duty, being 
 one of those under the management 
 of the commissioners of stamps." 
 lb. 
 
 A person might be found guilty 
 under 13 Geo. 3, c. 52, s. 14, and 
 38 Geo. 3, c. 69, s. 7, if proved to 
 have transposed the mark of the 
 Goldsmith's Company from one 
 gold ring to another, although both 
 rings were genuine, and although 
 the jury might be of the opinion 
 that he did so without any fraudu- 
 lent intention. Rex v. Ogden, 6 G. 
 & P. 631. 
 
 Using the same Stamp more than 
 once.l — To constitute a felony under 
 12 Geo. 3, c. 48, s. 1, of writing 
 some matter or thing liable to 
 stamp-duty on paper on which had 
 been before written some other mat- 
 ter liable to stamp-duty, before the 
 paper had been again stamped, it 
 was essential that the party writing 
 should do it with some fraudulent 
 intent. Reg. v. Allday, 8 C. & P. 
 136— Abinger. 
 
 (r) Trade Maries. 
 
 {See 25 & 26 Vict. c. 88.) 
 
 The prosecutor, Borwick, sold 
 powders called "Berwick's baking 
 powders," and " Borwick's egg pow- 
 ders," wrapped up in printed pa- 
 pers. The prisoner procured 10,000 
 wrappers to be printed similar to 
 Borwick's, except thai the name 
 of Borwick was omitted on the bak- 
 ing powders. In these wrappers 
 the prisoner inclosed powders of 
 his own, which he sold for Bor- 
 wick's powders. The jury found 
 that the wrappers so far resembled 
 Borwick's as to deceive persons of 
 ordinary observation, and that they 
 were procured and used by the 
 prisoner with an intent to defraud : 
 — Held, that he could not be con- 
 victed of forgery, though he was li- 
 able to be indicted for false preten- 
 ces. Req. V. Smith, 8 Cox, C. C. 
 32 ; 4 Jur., N. S. 1003 ; Dears. & 
 B. C. C. 566 ; 27 L. J., M. C. 225. 
 
 (s) Transfer of Stock or Shares. 
 By 24 & 25 Vict. c. 98, s. 2, 
 whosoever shall forge or alter, or 
 shall offer, utter, dispose of or put 
 oif, knowing the same to be forg- 
 ed or altered, any transfer of 
 any share or interest of or in any 
 .stock, annuity or other public 
 fund which now is or hereafter 
 may be transferable at the Bank 
 of England or at the Bank of Ire- 
 land, or of or in the capital stock 
 of any body corporate, company 
 or society which now is or here- 
 after may be established by char- 
 ter, or by, under or by virtue of 
 any act of parliament, or shall 
 forge or alter, or shall offer, utter 
 dispose of or put off, knowing the 
 same to be forged or altered, any 
 power of attorney or oth§r author- 
 ity to transfer any share or inter- 
 est of or in any such stock, annui- 
 ty, public fund or capital stock, 
 or to receive any dividend or 
 
 Digitized by Microsoft® 
 
200 
 
 FORGERY. 
 
 ' money payable in respect of any 
 ' suoli sliare or interast, or shall de- 
 • mand or cntleavor to have any 
 ' such share or interest transferred, 
 ' or to receive any dividend or 
 ' money payable in respect thereof, 
 ' by vn-tue of any such forged or 
 ' altered power of attorney or oth- 
 ' er authority, knowing the same to 
 ' be forged or altered, with intent 
 ' in any of the cases aforesaid to de- 
 ' fraud, shall be guilty of felony, 
 ' and, being convicted thereof, 
 ' shall be liable, at the discretion of 
 ' the cou.rt, to be kept in penal serv- 
 ' itude for life, or for any term not 
 ' less than five years (27 & 28 
 ' Vict. c. 47), or to be imprisoned 
 ' for any term not exceeding two 
 ' years, with or without hard la- 
 ' bour, and with or without solita- 
 ' ry confinement." {Former enact- 
 ment, 11 Geo. 4 & 1 Will. 4, c. 66, 
 6.) 
 
 By s. 4, " whosoever shall forge 
 any name, handwriting or signa- 
 ture purporting to be the name, 
 handwriting or signature of a wit- 
 ness attesting the execution of 
 any power of attorney or other 
 authority to transfer any share or 
 interest of or in any such stock, 
 annuity, public fund or capital 
 stock as is in either of the last 
 two preceding sections mentioned, 
 or to receive any dividend or 
 money payable in respect of any 
 such share or interest, or shall of- 
 fer, utter, dispose of or put oiT 
 any such power of attorney or 
 other' authority, with any such 
 forged name, handwriting or sig- 
 nature thereon, knowing the same 
 to be forged, shall be guilty of 
 felony, and, being convicted 
 thereof, shall be liable, at the dis- 
 cretion of the court, to be kept in 
 penal servitude for any term not 
 exceeding seven years, and not 
 less than five years (27 & 28 
 Vict. c. 47) , or to be imprisoned 
 for any term not exceeding two 
 years., with or without hard la- 
 bour, and with or without solita- 
 
 " ry confinement." {Previous pro- 
 vision, 11 Geo. 4 & 1 Will. 4, c. 66, 
 s. 8.) 
 
 An indictment for forging a trans- 
 fer of stock is good, although the 
 stock has never been accepted by 
 the person in whose name it stood, 
 and although the transfer was not 
 witnessed according to the rules 
 and directions of the bank. Mex v. 
 Gade, 2 Leach, C. C. 732 ; "2 East, 
 P. G. 874. 
 
 A., a share-broker, had bought 
 twenty shares in a railway compa- 
 ny of L., a broker, which stood in 
 the name of P. ; but L. did not send 
 A. the deed of transfer, as A. was 
 in embarrassed circumstances, and 
 owed L.. money. A. procured a 
 boy to execute a deed of transfer of 
 the shares in the name of P. ; all 
 the calls in the shares had been paid 
 up : — Held, a forgery, and that A. 
 could be convicted on counts laying 
 an intent to defraud P. and the rail- 
 way company. Beg. v. Hoatson, 2 
 C. & K. 777— Rolfe. 
 
 A power of attorney to transfer 
 government stock, signed, sealed 
 and delivered, was a deed within 2 
 Geo. 2, c. 25, s. 1. Hex v. Fauntk- 
 roy, 1 M. C. C. 52 ; 2 Bing. 413 ; 
 10 Moore, 1 ; 1 C. & P. 421 ; ,5'. P. 
 Rex. V. Pringle, 1 M. C. C. 68. 
 
 Forging a power of attorney to 
 receive a seaman's wages, in the 
 name of a supposed child as admin- 
 istratrix of such seaman, who, in 
 fact, died childless, is a forgery. 
 Rex V. Lewis, 2 East, P. C. 957. 
 
 Making false Entries in public 
 Transfer Books.l — By 24 & 25 Vict, 
 c. 98, s. 5, " whosoever shall wilfully 
 " make any false entry in, or wilfully 
 " alter any word or figure in, any of 
 " the books of account kept by the 
 " Bank of England or the Bank of 
 " Ireland, in which books the ac- 
 " counts of the owners of any stock, 
 " annuities or other public funds 
 " which now are or hereafter may 
 " be transferable at the Bank of 
 " England or at the Bank of Ireland 
 
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WAKRANTS, ORDERS, ETC. 
 
 201 
 
 '' shall be entered and kept, or shall 
 
 " in any manner wilfully falsify any 
 
 " of the accounts of any such own- 
 
 " ers in any of the said books, with 
 
 " intent in any of the cases aforesaid 
 
 " to defraud, or shall wilfully make 
 
 " any transfer of any share or -inter- 
 
 " est of or in any stock, annuity or 
 
 " other public fund which now is or 
 
 " hereafter may be transferable at 
 
 "the Bank of England or at the 
 
 " Bank of Ireland, in the name of 
 
 " any person not being the true and 
 
 " lawful owner of such share or in- 
 
 " terest, with intent to defraud, 
 
 " shall be guilty of felony, and, be- 
 
 " ing convicted thereof, shall be li- 
 
 " able, at the discretion of the court, 
 
 " to be kept in penal -servitude for 
 
 " life, or for any term not less than 
 
 " five years (27 & 28 Vict. c. 47), 
 
 " or to be impi-isoned for any term 
 
 " not exceeding two years, with or 
 
 " without hard labour, and with 
 
 " or without solitary confinement. 
 
 {FoAner enactment, 11 Geo. 4' & 1 
 
 Will. 4,. c. 66, s. 5.) 
 
 In Companies.] — On an indict- 
 ment for forging and uttering a 
 transfer of shares in a railway com- 
 pany, the register of shareholders 
 bearing the seal of the company, 
 and kept according to 8 & 9 Vict, 
 c. 16, s. 9, is evidence to shew that 
 an individual is a shareholder, with- 
 out further authentication ; and in 
 order to prove that su.ch individual is 
 liable to be defrauded by the forg- 
 ing and uttering of a transfer of 
 the shares, it is not necessary to 
 give further proof of his title to the 
 shares. Heff. v. JVash, 2 Den. C. C. 
 4«3 ; 16 Jur. 553 ; 21 L. J., M. C. 
 147. 
 
 Bank Dividend Warrants.] — ^By s. 
 6, " whosoever, being a clerk, ofii- 
 " cer or servant of, or other person 
 " employed or intrusted by, the 
 " Bank of England or the Bank of 
 " Ireland, shall knowingly make 
 " out or deliver any dividend 
 " warrant, or warrant for payment 
 
 " of any annuity, interest or money 
 " payable at the Bank of England 
 " or Ireland, for a greater or less 
 " amount than the person on whose 
 " behalf such warrant shall be made 
 " out is entitled to, with intent to 
 " defraud, shall be guilty of felony, 
 " and, being convicted thereof, 
 " shall be liable, at the discretion of 
 " the court, to be kept in penal serv- 
 " itude for any term not exceed- 
 " ing seven years, and not less 
 " than five years (27 & 28 Vict. c. 
 " 47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary conflne- 
 " ment." (^Former provision, 11 
 " Geo. 4 & 1 Will. 4, c. 66, s. 9.) 
 
 (t) Warrants, Orders, Undertakings, 
 Requests and Receipts for Goods 
 or for Money. 
 Statute.]— By 24 & 25 Vict. c. 98, 
 s. 23, " whosoever shall forge or al- 
 " ter, or shall offer, utter,, dispose 
 " of or put ofi", knowing the same 
 " to be forged or altered, any under- 
 " taking, warrant, order, authority 
 " or request for the payment of 
 " money, or for the delivery or trans- 
 " fer of any goods or chattels, or of 
 " any note, bill or other security for 
 " the payment of money, or for pro- 
 " curing or giving credit, or any in- 
 " dorsement on or assignment of 
 " any such undertaking, warrant, 
 " order, authority or request, or any 
 " accountable receipt, acquittance 
 " or receipt for money or for goods, 
 " or for any note, bill or other secu- 
 " rity for the payment of money, or 
 " any indorsement on or assignment 
 "of any such accountable receipt, 
 " with intent, in any of the cases 
 " aforesaid, to defraud, shall be 
 " guilty of felony, and, being coh- 
 " victed thereof, shall be liable, at 
 " thfe discretion of the court, to be 
 " kept in penal servitude for life, or 
 " for any term not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 
 FisH. Dig.— 15. Digitized by Microsoft® 
 
202 
 
 FORGERY. 
 
 " out hard labour, and with or with- 
 " out solitary confinement." {For- 
 mer provision, 11 Geo. 4 & 1 Will. 
 4, c. 66, ss. 3, 10.) 
 
 By s. 24, " whosever, with intent 
 " to defraud, shall draw, make, sign, 
 " accept or indorse any bill of ex- 
 " change or promissory note, or any 
 " undertaldng, warrant, order, au- 
 " thority or request, for the pay- 
 " ment of money, or for the deliv- 
 " ery or transfer of goods or chat- 
 " tels, or of any bill, note or other 
 " security for money, by procura- 
 " tion or otherwise, for, in the name 
 " or on the account of any other 
 " person, without lawful authority 
 " or excuse, or shall offer, utter, dis- 
 " pose of or put off any such bill, 
 " note, undertaking, warrant, order, 
 " authority or request so drawn, 
 " made, signed, accepted or in- 
 " dorsed by procuration or other- 
 " wise, without lawful authority or 
 " excuse, as aforesaid, knowing the 
 " same to have been so drawn, made, 
 " signed, accepted or indorsed as 
 " aforesaid, shall be guilty of fel- 
 " ony, and being convicted thereof 
 " shall be liable, at the discretion 
 " of the court, to be kept in penal 
 " servitude for any term not exceed- 
 " ing fourteen years and not less 
 " than five years (27 & 28 Vict. c. 
 1 " 47) , or to be imprisoned for any 
 "" term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 -" ment." 
 
 Orders for the Delivery of Goods.^ 
 r — ^A forged order for the delivery of 
 igoods was not within 7 Geo. 2, c. 
 22, unless directed to the person 
 who had the goods. Rex v. Ulinch, 
 1 Leach, C. C. 540 ; 2 East, P. C. 
 938. 
 
 In a case of forging an order, the 
 order charged as forged must im- 
 port that the person making it has 
 a disposing power over the subject 
 of the order, or there ought to be 
 proof that the person in whose 
 
 
 name it was made had such power. 
 Eex V. Baker, 1 M. C. C. 231. 
 
 A note, in a name of an overseer 
 of the poor, to a shopkeeper, desir- 
 ing him to let the prisoner have 
 certain goods, which he would see 
 himipaid for, was not a warrant or 
 an order for the delivery of goods 
 within 7 Geo. 2, c. 22. Bex Y.Mitch- 
 ell, 2 East, P. C. 936. 
 
 A forged order on a tradesman, 
 in the name of a customer, request- 
 ing that the goods mentioned in it 
 might be delivered to the bearer, 
 was not within 7 Geo. 2, c. 22, if 
 the customer had no interest in the 
 goods mentioned. Rex v. Will- 
 iams, 1 Leach', C. C. 114 ; 2 East, 
 P. C. 937. 
 
 A prisoner convicted on or con- 
 fessing to an indictment for utter- 
 ing a forged order, ought not to 
 have judgment passed, if it appears 
 that the person whose name is 
 forged had no authority to order, 
 and the writing merely purports to 
 be a request. • lieg. v. Newton, 2 
 M. C. C. 59. 
 
 Forging an order in the name of 
 a silversmith for the re-delivery of 
 plate from Goldsmiths' Hall, viz. 
 " Please to deliver my work to the 
 bearer," was within 7 Geo. 2, c. 22, 
 and 13 Geo. 3, c. 26. Rex v. Jones,- 
 
 1 Leach, C. C. 53 ; 2 East, C. C. 
 941. 
 
 An order to taste wine in the 
 London Docks, is an order for the 
 delivery of goods, the forgery of 
 which is a felony. Heg. v. Illidqe, 
 
 2 0. &K. 871; T. & M. 127; 13 
 Jur. 543 ; 18 L. J., M. C. 179 ; 3 
 Cox, G. C. 552. 
 
 At the London Docks, a person 
 bringing a tasting order from a 
 merchant having <vine there is not 
 allowed to taste till the order has 
 the signature of a clerk of the 
 company across it. A. uttered a 
 tasting-order, with the merchant's 
 name forged to it, by presenting it 
 to the company's clerk for his sig- 
 nature across it. The clerk refused 
 
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WARRANTS, ORDERS, ETC. 
 
 203 
 
 to sign it : — Held, that in this state 
 the order was a forged order for 
 the delivery of goods. lb. 
 
 A document in the following 
 form,, " W. Trim, 2s.," is neither a 
 warrant for the payment of money, 
 nor a request for the delivery of 
 goods within 11 Geo. 4 & 1 Will. 
 4, c. 66, ss. 3, 10, and cannot be 
 shewn to be so by parol evidence. 
 Reg. v. miis, 4 Cox, C. C. 268. 
 
 On an indictment for forging and 
 uttering an accountable receipt for 
 goods, the following document was 
 held to be an accountable receipt : 
 " By order of R.F. Pries, we have this 
 day transferred into the name of 
 Messrs. ■ Collman and Stolterfoht, 
 759 quarters and 4 bushels of 
 wheat, ex- August Ferdinand, Cap- 
 tain Richards, a Neustadt. En- 
 tered by R. F. Pries, and now 
 lying at our granaries, Bermondsey- 
 wall. The wheat is insured against 
 risk of fire by us. —Brown and 
 Toung, Com Exchange, Oct. 23, 
 1852." Reg. v. Pries, 6 Cox, C. 
 C. 165. 
 
 If the course of dealing between 
 A. and B. is, that A. shall write 
 persons' names in a list with a sum 
 against each name, on sight of 
 which B. is to furnish goods on the 
 credit of A. to each person whose 
 name is on the list to the amount 
 set against his name, such Ust is a 
 request for the delivery of goods, 
 and the fraudulent alteration of one 
 of the sums in it is indictable as a 
 forgery. Reg. v. Walters, Car. & 
 M. 588— Ludlow, Serjt. 
 
 An indictment charged the pris- 
 oner with uttering, knowing the 
 same to be forged, a warrant order 
 and request for the delivery of 
 goods in the wcfrds and figures fol- 
 lowing : " Mr. B., — Please send by 
 bearer a quantity of basket nails, a 
 clasp — E. L." It was j)roved that 
 E. L. was a customer of B.'s, and 
 had employed the prisoner in his 
 service, and that the prisoner had 
 delivered to B. a paper, as set forth 
 in the indictment, which was a forg- 
 
 ery of E. L.'s handwriting. The 
 prisoner was convicted. On a case 
 reserved, it was objected that the 
 paper, being only a request, did not 
 support the indictment, which de- 
 scribed it as a warrant order and 
 request : — Held, that there was no 
 variance, as the document being 
 set out in hsec verba in the indict- 
 ment, the description of it therein 
 became immaterial. Reg. v. Will- 
 iams, T. & M. 382 ; 2 Den. C. C. 
 61 ; 14 Jur. 1052 ; 20 L. J., M. C. 
 106. 
 
 Requests for the Delivery of 
 Goods.'] — A forged paper in the 
 following form : — " Per bearer, two 
 11-4 superior counterpanes. T. 
 Davis, E. Twell." It was not ad- 
 dressed to any person, is neither an 
 order nor a request within 1 1 Geo. 
 4 & 1 Will. 4, c. 66, s. 10. Rex v. 
 Cullen, 5 C. & P. 116 ; 1 M. C. C. 
 300. 
 
 But a request for the delivery of 
 goods need not be addressed to any 
 one. Rex v. Carney, 1 M. C. C. 
 351. 
 
 A paper in the following form is 
 a request for the delivery of goods, 
 though not addressed to any one : 
 — "August 3, 1839— one 16-in. 
 helmet scoop, one 4-qt. kettle — Jas. 
 Hayward." Reg. v. Pvlbrooh, 9 
 C. & P. 37— Denman. 
 
 A person who obtained goods on 
 delivering a forged letter — " Please " 
 to let the bearer, W. T., have for 
 J. R. four yards of linen," signed 
 J. R., was not indictable for obtain- 
 ing goods by false pretence, as this 
 was uttering a forged request for 
 the delivery of goods, w^hich was a 
 felony under 11 Geo. 4 & 1 Will, 
 4, c. 66, s. 10. Rex v. Mvatis, 5 C. 
 & P. 553— Taunton. 
 
 The prisoner represented that M. 
 C. was dead, and had left him 60^. 
 or 60?., and it was in the hands of 
 A. D., and that he wanted mouro- 
 ing. He brought a forged paper, 
 purportirig to be signed by A. D., 
 as follows :— " Please to let W. T. 
 
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204 
 
 FORGERY, 
 
 have such things as he wants for 
 the purpose. Sir, I have got the 
 amount of 'ill. for M. C. iu my 
 keeping these many years ": — Held, 
 that this was a forged request for 
 the delivery of goods. Rex v. 
 Thomas, 7 C. & P. 851 ; 2'M. C. 
 C. 16. 
 
 A forged paper addressed to a 
 tradesman, and purporting to be 
 signed by one of his customers, in 
 the following form : — " Please to 
 let bearer, William Goff, have spill- 
 shovel and grafting tool for me," 
 is a forged request for the delivery 
 of goods. Reg. v. James, 8 C. & 
 P. 292— Gurney. 
 
 A forged paper in the following 
 form : — " Please to let the lad have 
 a hat, and I will answer for the 
 money — E. B.," is a forged request 
 for the delivery of goods, and is not 
 the less so because it may also be a 
 forged undertaking for the payment 
 of money. Reg. v. White, 9 C. & 
 P. 282— Gurney. 
 
 Where the prisoner signed a doc- 
 ument which entitled him to re- 
 ceive a delivery note, which, in the ' 
 course of business of a canal com- 
 pany, would enable him to demand 
 and have the goods described there- 
 in delivered to him on payment of 
 the charges for carriage : — Held, a 
 forgery of a receipt for goods. 
 Reg. V. Meigh, 7 Cox, C. 0. 401— 
 Wightman. 
 
 Evidence of Uttering.^ — On a 
 charge of uttering an order or a 
 request for the deliveiy of goods, 
 proof of the receipt of goods by 
 the prisoner is no evidence of the 
 utterance. Reg. v. Johnson, 6 
 Cox, C. C. 18— Wightman. 
 
 Orders and Warrants for the 
 Payment of Money.] — The words 
 " warrant " or " order," in 7 Geo. 
 2, c. 22, were synonymous. Rex v. 
 Mitchell, 2 East, P. 0. 936. 
 
 A bill of exchange or a banker's 
 draft might have been charged in 
 an indictment on 7 Geo. 2, c. 22, as 
 
 an order for payment of money. 
 Rex V. WUlaughby, 2 East, P. ,C. 
 944; S. P. Rex v. Shepherd, 2 
 East, P. C. 944; 1 Leach, 226. 
 
 A note — " Please to send 10^. by 
 bearer, as I am so ill I cannot wait 
 on you," — was not an order for the 
 payment of money within 7 Geo. 2, 
 c. 22. Rex V. Ellor, 1 Leach, C. 
 C. 323 ; 2 East, P. C. 937. 
 
 The prisoner drew a bill, — 
 " Please to pay the bearer on de- 
 mand 15^., — and signed it with his 
 own name, but it was not addressed 
 to any one ; ther^ were forged upon 
 this instrument, when uttered, the 
 words and signature, "Payable at 
 Messrs. Masterman & Co., White 
 Hart Coujt. Wm. M'Inerheney." 
 M'Inerheney kept cash at Master- 
 man <fe Co.'s : — Held, that this was 
 not an order for payment of money. 
 Rex V. Ravenscroft, R. & R. C. C. 
 161. 
 
 Indictment for forging an order 
 for payment of money. The in- 
 strument was an order to pay pris- 
 oner or order the sum of four 
 pounds five shillings, being a 
 month's advance on an intended 
 voyage to Quebec, in the ship Mary 
 Ann, as per agreement with G. M., 
 master. The prisoner had in the 
 margin of the order written, " on 
 receiving this cheque I agree to 
 sail, and to be on board within six- 
 teen hours from the date of this 
 cheque ": — Held, a good order for 
 payment of money within the 11 
 Geo. 4 & 1 Will. 4, c. 66, s. 3. 
 Rex y. Bamfield, 1 M. C. C. 416. 
 
 It is no defence on an indictment 
 for forging and uttering an order of 
 a board of guardians of a Poor-law 
 Union, to shew that the person who 
 signed the order a's presiding chair- 
 man was not, in fact, chaii-man on 
 the day he signed, the forgery 
 charged being of another name in 
 the order. Reg. v. Pike, 2 M. C. 
 C. 70; 3 Jur. 27. 
 
 An order for the payment of 
 prize-money, signed in the name of 
 a seaman, was an order for pay- 
 
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WARRANTS, ORDERS, ETC. 
 
 205 
 
 ment of money, or bill of exchange 
 within 7 Geo. 2, c. 22, the forgery 
 of which was felony, although the 
 requisites of 32 Geo. 3, c. 34, s. 2, 
 had not been complied with. Rex 
 V. Macintosh, 2 East, P. C. 942, 
 956; 2 Leach, C. C. 883. 
 
 The prisoner drew a bill upon 
 the treasurer of the navy payable 
 
 to or order, and signed it in 
 
 the name of a navy surgeon :' — Held, 
 that to constitute an order for pay- 
 ment of money there must be some 
 
 payee ; a direction to pay or 
 
 order is not suiBoient. Mex v. Rich- 
 ards, R. & R. C. C. 193. 
 
 A prisoner was indicted for forg- 
 ing an order for the payment of 
 money, with intent to defraud " H. 
 D., as one of the public officers of 
 the Y. district bank." The instru- 
 ment was as follows : — " Thornton- 
 le-Moor, July 20, 1844. Mr. J., 
 Sir, Please to pay James Jackson 
 I3Z., by order of Christopher Sad- 
 ler, Thornton-le-Moor, brewer. The 
 District Bank. I shall see you on 
 Monday. Yours, obliged, Charles 
 Sadler ": — Held, to be an order 
 within 11 Geo. 4 & 1 Will. 4, c. 
 66, s. 3. Reg. v. Carter, 1 Den. C. 
 C. 65; 1 C. &K.-741. 
 
 A person who knowingly utters 
 a forged pass of a discharged pris- 
 oner, purporting to have been given 
 under 5 Geo. 4, c. 85, may be con- 
 victed of uttering a forged warrant 
 and order for the payment of mon- 
 ey, although the forged pass be not 
 precisely in the form given by that 
 statute, and although it does not 
 purport to be sealed with the coun- 
 ty seal, or any seal provided for 
 the purpose, the only seal to it be- 
 ing two small pieces of paper af- 
 fixed to it by wafers. Reg. v. 
 M'Connell, l.C. & K. 371; 2 M. 
 C. C. 298. 
 
 A woman who applies to a re- 
 lieving officer for money on such a 
 false pass, and produces it to him, 
 may be convicted of uttering a 
 forged warrant and order for the 
 payment of money, although the 
 
 forged pass direct the money men- 
 tioned in it to be paid to " William 
 Henry," on his giving a receipt. 
 lb. 
 
 A writing, purporting to author- 
 ize the bearer to receive money de- 
 posited in a bank by a friendly 
 society on accountable receipts, 
 and purporting to be signed by the 
 principal officers of the society, 
 may, in an indictment for forgery, 
 be alleged to be a warrant for the 
 payment of money. Reg. v. Har- 
 ris, 2 M. C. C. 267 ; 1 C. & K 179. 
 
 An indictment for forging an 
 order for the payment of money is 
 not sustained by a forged letter re- 
 questing a person, with whom the 
 supposed writer had dealings, to 
 pay money, the balance being at 
 the time against the writer. Reg. 
 V. Roberts, 2 M. C. C. 258; Car. & 
 M. 652. 
 
 " Three days after the ship Selah 
 has sailed from the port of Sunder- 
 land, please to pay to John Wilson, 
 or bearer, the sum of four pounds 
 shillings and pence (provided 
 the said John Wilson has actually 
 sailed in the said ship), being part 
 of his wages in advance, on her in- 
 tended voyage to Alexandria. — 
 John Robson, Master. To Mr. 
 John Stobart, owner of ship," is 
 an order for payment of money. 
 Reg. V. Lonsdale, 2 Cox, C. C. 222 
 — Alderson and Rolfe. 
 
 A forged paper was in the fol- 
 lowing form: — "To M. & Co. 
 Pay to my order, two months after 
 date, to Mr. J. S., 80?,, and deduct 
 the same out of my account." It 
 was not signed, but across it was 
 written, " Accepted, Luke Lade "; 
 and at the back the name and ad- 
 dress of J. S. . M. & Co. were 
 bankers, and Luke Lade kept cash 
 with them : — Held, that this paper 
 was a warrant for the payment of 
 money, as, if genuine, it would 
 have been a warrant from Luke 
 Lade to the bankers to pay the 
 money to J. S. Reg. v. Smith, 1 
 C. & K. 700 ; 1 Den. C. C. 79. 
 
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206 
 
 FORGERY. 
 
 " Mr. M. will be pleased to send 
 by the bearer 101. on Mr. H.'s ac- 
 count, as Mr. H. is very bad in bed, 
 and cannot come himself," and the 
 paper purported to be signed, "Mr. 
 R., foreman, St. A. Foundry," a»d 
 Mr. M. was clerk to Messrs. C, 
 bankers, with whom Mr. H. kept 
 an account, and R. was foreman to 
 Mr. H., but had no authority to 
 draw on Mr. H.'s banker, is a war- 
 rant for the payment of money. 
 Heff. V. Vivian, 1 C. & K. 719 ; 1 
 Den. C. C. 35. 
 
 Any instrument for payment, un- 
 der which, if genuine, the payer 
 may recover the amount against 
 the party signing it, may be prop- 
 erly considered a warrant for the 
 payment of money ; and it is equally 
 this, whatever be the state of the 
 account between the parties, and 
 whether the party signing it has, at 
 the time, funds in the hands of the 
 party to whom it is addressed. lb. 
 
 An instrument in the following 
 form : " Please to pay T. E. Turber- 
 ville 31. 12s. Gd. for sick-pay to 
 Brother Isaac Jones," and signed 
 by the officers of a friendly society, 
 and directed to the treasurer, is, on 
 the face of it, an order within 11 
 Geo. 4 & 1 Will. 4, c. 64, s. 3 ; and 
 may be shewn by evidence to be a 
 warrant for the payment of money. 
 Where a prisoner was charged with 
 forging the above instrument, and 
 some counts of the indictment laid 
 the intent to be to defraud " J. C. 
 and others," by virtue of 11 Geo. 4 
 & 1 Will. 4, c. 66, s. 28, and it ap- 
 peared that the prisoner and J. C. 
 and others were members of this so- 
 ciety : — Held, that the word " oth- 
 ers" might be held to include or ex- 
 clude the prisoner, according as it 
 was necessary, for the support of 
 the indictment, that his name should 
 be considered as included or excluded. 
 Other counts of the indictment laid 
 the intent to be to defraud W. R. : — 
 Held, that this intent was supported 
 by proof that W. R. was the treasurer 
 of the society, and that it was the 
 
 course of business and his duty to 
 pay money, on having genuine or- 
 ders or warrants for that purpose in 
 the above form. Seff. v. Turher- 
 ville, 4 Cox, 0. C. 13— Erie. 
 
 A. kept a deposit account, but 
 not a drawing account, with B., a 
 banker, and was not entitled to 
 draw cheques on B. C. presented a 
 forged cheque of A. on B., which 
 
 B. paid : — Held, that this was a 
 forged warrant for the payment of 
 money, but not a forged order ; as 
 A. had, by the course of dealing be- 
 tween him and B., no right to draw 
 cheques on B. Reg. v. Williams, 2 
 
 C. & K. 51— Wightman. 
 
 A post-dated cheque is an order 
 for the payment of money. Meg. v. 
 Taylor, 1 0. & K. 213— Cresswell. 
 
 A Sailor's shipping note for 21. 15s., 
 payable to A. or bearer, five days 
 after the ship shall sail, is not a void 
 instrument under 17 Geo. 3, c. 30, 
 but is an undertaking, warrant or 
 order for the payment of money 
 within 11 Geo. 4 & 1 Will. 4, c. 66, 
 s. 3. Reg. v. Anderson, 2 M. & 
 Rob. 469— Parke. 
 
 But a warrant for wages, signed 
 by a foreman and paid by a cashier, 
 is not a warrant for the payment of 
 money within 11 Geo. 4 & 1 Will. 
 4, c. 66, s. 10. Reg. v. Filling, 1 
 P. & P. 324— Bramwell. 
 
 A certificate in the following 
 form : " I hereby certify that the 
 within-named William Michell is 
 gaining his living by hawking," the 
 production of which was necessary, 
 in order that the prisoner might ob- 
 tain payment of a sum of money to 
 which he was entitled, is not an un- 
 dertaking, warrant or order for the 
 payment of money within 1 1 Geo. 
 4 & 1 Will. 4, c. 66. Reg. v. Mitch- 
 ell, 2 P. & P. 44— Williams. 
 
 For forging such a certificate the 
 prisoner must be indicted for a forg- 
 ery' at common law. Ih. 
 
 D. was indicted for having forged 
 and uttered the following instru- 
 ment : — " Mr. Lowe. — Bought of 
 C. Dawson, English and foreign 
 
 Digitized by Microsoft® 
 
WARRANTS, ORDERS, ETC. 
 
 fruit-merchant and potato salesman. 
 Nov. 9th, two bushels of apples, 9s. 
 Sir, — I hope you will excuse me 
 sending for such a trifle, but I have 
 received a lawyer's letter this morn- 
 ing, and unless I can make up a 
 certain amount by one o'clock, 
 •there will be an action commenced 
 against me, and I am obliged to 
 hunt after every shilling. Yours, 
 &c., F. Dawson" :— Held, that this 
 was properly described as a warrant 
 for the payment of money. Heff. v. 
 Dawson, T. & M. 428 ; 2 Den. C. C. 
 75 ; 15 Jur. 159 ; 20 L. J., M. C. 
 102 ; 5 Cox, C. C. 220. 
 
 A forged order for the payment 
 of money needs not disclose on the 
 face of it the name of the party to 
 whom it is addressed, but the direc- 
 tion may be shewn by extrinsic evi- 
 dence. Beg. v; SneUing, Dears. C. 
 C. 219 ; 17 Jut. 1012 ; 2 C. L. R. 
 114; 23L. j;, M. C. 8; 6 Cox, C. 
 C. 230. 
 
 An instrument professing to be a 
 scrip certificate of a railway compa- 
 ny, was not an undertaking for the 
 payment of money within 11 Geo. 
 4 & 1 Will. 4, c. 66. Reg. v. West, 
 1 Den. C. C. 258 ; 2 C. & K 496 ; 
 S. P., Clark V. Newsam, 5 Railw. 
 Cas. 69 ; 1 Exch. 131 ; 16 L. J., 
 Exch. 296. 
 
 A dividend warrant of a railway 
 company, signed by the secretary, 
 and addressed to a banker, required 
 the latter to pay the amount to L. 
 (a shareholder) or order, and to 
 charge the same to the company's 
 revenue account. It further requir- 
 ed the shareholder's name to be in- 
 dorsed, and the banker would not 
 pay the money without such in- 
 dorsement. The prisoner uttered 
 this dividend warrant, knowing 
 that the indorsement of the share- 
 holder's name was a forgery, and 
 he was convicted upon an indict- 
 ment which charged him in one 
 count with uttering a warrant for 
 the paymejit of money, and in anoth- 
 er with uttering an order for the 
 
 payment of money : — Held, that the 
 document was properly described. 
 Req. V. Autey, Dears. & B. C. C. 
 294 ; 3 Jur., K. S. 697 ; 26 L. J., 
 M. C. 190 ; 7 Cox, C. C. 329. 
 
 Receipts.^ — After a receipt was 
 signed by the person giving it, the 
 person to whom it was given added 
 words above the signature : — Held, 
 that it was for the jury to say 
 whether the addition of those words 
 altered the effect of the receipt. 
 Reg. V. MiUon, 10 Cox, C. C. 364— 
 Chambers, C. S. 
 
 Held, also, that it was doubtful 
 whether such addition amounted to 
 a forgery. lb. 
 
 Post-Office Money Orders.'] — A 
 post-oifice money order purporting 
 to be signed by a local postmaster, 
 and addressed to the Post-office, 
 London, in the following form, 
 " Credit the person named in my 
 letter of advice the sum of 51., and 
 debit the same to this office," is 
 both a warrant, and an order for the 
 payment of money. Reg. v. Gil- 
 christ, Car. & M. 224 ; 2 M. C. C. 
 233. 
 
 y. was indicted for uttering for- 
 ged orders for the payment of mon- 
 ey, and convicted. He had fi:audu- 
 lently obtained certain forms of 
 post-office orders from the office at 
 A., and also some with the N. stamp 
 affixed. These orders being filled 
 up, and signed " G. J., pro postmas- 
 ter," there being no one of the 
 name of G. J. at N., were uttered 
 by V. in payment for goods at D. 
 No letters of advice were forwarded 
 to D. : — Held, that V. was rightly 
 convicted. Reg. v. Vanderstein, 16 
 Ir. C. L. R. 574 ; 10 Cox, C. C. 
 177— Ir. C. C. R. 
 
 Letters of Credit.] — A letter of 
 credit, on which the correspondents 
 of the writer of it, having funds of 
 his in their possession, apply them 
 to the use of the party in whose fa- 
 
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208 
 
 FORGERY. 
 
 vour it is given, is a warrant for the 
 payment of money. Reg. v. Eaalce, 
 8 C. & P. 626 ; 2 M. C. C. 66. 
 
 An indorsement on a letter of 
 credit is not an order, as not being 
 within the original mandate. Reg. 
 V. WiUon, 1 F. & F. 391— Bram- 
 well. 
 
 Undertakings for the Payment of 
 Money.'] — A guarantie is the sub- 
 ject of forgery, though no consider- 
 ation appears, and 19 & 20 Vict. c. 
 97, s. 3, gives validity to such an 
 undertaking. Reg. v. Ooelho, 9 
 Cox, C. C. 8. 
 
 Indictment under 11 Geo. 4 & 1 
 Will. 4, 0. 66, s. 3, for uttering a 
 forged undertaking for the payment 
 of money : — Held, that the statute 
 applied as well to a written promise 
 for the payment of money by a 
 third person as to a like promise of 
 payment by the supposed party to 
 the instrument. Reg. v. Stone, 1 
 Den. C. C. 181 ; 2 C. &. K. 364. 
 
 A forged instrument, by which 
 the supposed maker of it, in consid- 
 eration of goods to be sold to P., 
 undertakes to guarantee to the vend- 
 or the due payment for all such 
 goods so to be sold to P., but so that 
 the supposed maker should not be 
 liable beyond \Ql., is a forged un- 
 dertaking for the payment of money. 
 lb. 
 
 Forging a document purporting 
 to guarantee a master to a certain 
 amount in money against the dis- 
 honesty of a clerk, is forging an un- 
 dertaking for the payment of money 
 within 24 & 25 Vict. c. 98, s. 23. 
 Reg.Y. Joyce, 10 Cox, C. C. 100; 
 L.&C. 576; 11 Jur., IST. S. 472; 
 34 L. J., M. C. 168 ; 13 W. R. 662 ; 
 12 L. T., K S. 351. 
 
 The forging of a paper, by which 
 the supposed writer promises to pay 
 B., or order, lOOZ., or such other 
 sum, not exceeding the same, as he 
 may incur by reason of his becom- 
 ing one of the sureties to the sheriff 
 of Y., for J. R., a sheriff's oflScer, is 
 a forgery of an undertaking for the 
 
 payment of money. Reg. v. Reed, 
 8 C. & P. 623 ; 2 Lewin, C. C. 185. 
 
 Requests for the Payment of Mon- 
 ey.}— Beiore the 24 & 25 Vict. c. 
 98, s. 24, a forged request to pay a 
 third person money on account of 
 the supposed writer would not sus- 
 tain an indictment for forgery, de- 
 scribing it either as an undertaking, 
 warrant or order for the payment of 
 money. Reg. v. Thorn, 2 M. C. C. 
 210 ; Car. & M. 206. 
 
 A customer in the country had 
 an account open with a wholesale 
 house in London ; a letter purport- 
 ing to come from him was delivered 
 at their place of business ; it was in 
 the following form : — " I shall feel 
 obliged by your paying Mr. B. 2?. • 
 7s. 8c?., and debiting me with the 
 same. You will please have a re- 
 ceipt, and add the amount to in- 
 voice of order on hand." It appear- 
 ed to be the practice of the house in 
 London to pay country customers 
 on requests of a similar description. 
 The party who sent it by an inno- 
 cent agent, and obtained the money 
 on it, was indicted for forging and 
 uttering it. The instrument was de- 
 scribed in the indictment as an un- 
 dertaking, a warrant and an order, 
 each for the payment of 21. Is. ■ 8rf. 
 The prisoner having been convicted 
 of uttering, the judges held the con- 
 viction wrong, as the instrument 
 was neither an undertaking, a war- 
 rant, nor an order, lb. 
 
 It was not an offence, under 11 
 Geo. 4 & 1 Will. 4, c. 66, to forge 
 an indorsement upon a warrant or 
 order for the payment of money ; nor 
 if a party wrote on the back of a 
 bill of exchange payable to R. A., 
 " Received for R. A.," and signed 
 his own name to it, was he guilty 
 of forging a receipt. Rex v. Arscott, 
 6 C. & P. 408— Littledale, Vaughan 
 and Bolland. But see 24 & 25 
 Vict. c. 98, s. 24. 
 
 Receipts or Acquittances for Mon- 
 ey.] — A person makes a copy of a 
 
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WARRANTS, ORDERS, ETC. 
 
 209 
 
 receipt, and adds to it other words, 
 as, for example, " in full of all de- 
 mands," whicli were not in the orig- 
 inal ; it is a forgery, if the copy is 
 offered in evidence on the supposed 
 loss of the original. Upfold v. Leit, 
 5 Esp. 100— Ellenborough. 
 
 A stamped memorandum, import- 
 ing that A. B. had paid a sum of 
 money to C. D., but not importing 
 any acknowledgement from C. D. 
 of his having received it, was not 
 such a receipt as 2 Geo. 2, c. 25, s. 
 1 , made it capital to forge or utter. 
 Bex V. Harvey, R. & R. C. C. 227. 
 
 An entry of the receipt of money 
 or notes made by a cashier of the 
 Bank of England in the bank book 
 of a creditor was an accountable 
 receipt for the payment of money 
 within 7 Geo. 2, c. 22. Rex v. Har. 
 rison, 1 Leach, C. 0. 180 ; 2 East, 
 P. C. 927, 988. 
 
 Forging an indenture of appren- 
 ticeship and a receipt for the appren- 
 ticeship fee, with intent to defraud 
 the stewards of the Feast of the Sons 
 of the Clergy, was forgery. Hex v. 
 Jones, 1 Leach, C. C. 366 ; 2 East, 
 P. C. 991. 
 
 The name of the holder of a navy 
 bill, signed on a proper receipt 
 stamp, and affixed to the navy bill, 
 did not on the face of it purport to 
 be a receipt for money withia 2 
 Geo. 2, c. 25, and 7 Geo. 2, c. 22 ; 
 but as the money was paid on such 
 signature,, and it always had been 
 considered as a receipt at the Navy 
 Office, it might, by proper aver- 
 ments in the indictment, be brought 
 within the protection of the statutes 
 as a receipt for money. Hex v. 
 Biinter, 2 Leach, C. C. 624 ; 2 East, 
 P. C. 928, 977. 
 
 If a person, employed by the ex- 
 ecutors of a public accountant to 
 settle the account of the testator 
 with government, procure fabrica- 
 ted vouchers, and deliver them to 
 the Navy Board, in order to exon- 
 erate the estate of the testator from 
 an extent, it was a forging and ut- 
 tering within 2 Geo. 2, c. 25. Mex 
 
 V. Thomas, 2 Leach, C. C. 877 ; 2 
 East, P. C. 934. 
 
 A scrip receipt not filled up with 
 the name of the subscriber is not a 
 receipt for money within the stat- 
 utes against forgery. Hex v. Lyon, 
 2 Leach, C. C. 597 ; 2 East, P. C. 
 933. 
 
 A servant employed by her mis- 
 tress to pay tradesmen's bills, re- 
 ceived from her a bill of a trades- 
 man named Sadler, together with 
 the money to pay that and other 
 bills. She brought the bill again to 
 her mistress, with the words " paid 
 Sadler" on it, the word Sadler be- 
 ing written with a small s, and 
 there being no initial of the chris- 
 tian name of the tradesman. The 
 mistress stated that she believed 
 the words to be a receipt and that 
 no application was made for the 
 money afterwards : — Held, on an 
 indictment for forgery, that the 
 words " paid Sadler," under the 
 circumstances, imported a receipt 
 or an acquittance for the money, and 
 was not merely a memorandum by 
 the servant of her having paid the 
 bill. Heg. v. Houseman, 8 C. & P. 
 180 — Denman. 
 
 If a high constable issues his re- 
 ceipt for the payment of a county 
 rate amounting to 3Z. 5s. 9d., and 
 having received the money, writes 
 a receipt at the bottom of the paper, 
 " Received the above rate, J. P.," 
 and after that, the sum 3?. 5s. 9d. 
 in the receipt is fraudulently altered 
 to 3Z. 15s. 9^. ; this is a forgery of 
 a receipt within 11 Geo. 4 & 1 
 Will. 4, c. 66, s. 10, and may be 
 laid with intent to defraud any 
 rated inhabitant (by name) of the 
 parish on which the rate is imposed 
 (and others). Reg. v. Vaughan, 8 
 C. & P. 276— Gurney. 
 
 The words " Settled, Samuel 
 Hughes," at the foot of a bill of 
 parcels, import a receipt and an ac- 
 quittance. Rex V. Martin, 7 C. & 
 P. 549 ; 1 M. C. C. 483. 
 
 The prisoner, a pay-serjeant of 
 the artillery, obtained from the 
 
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210 
 
 FORGERY . 
 
 paymaster a receipt for a sum of 
 money as part of subsistence of a 
 company for the month of May. 
 He afterwards erased May and in- 
 serted June, and gave the receipt 
 to a tradesman, who, according to 
 the usual practice, advanced the 
 sum to the prisoner, and sent the 
 receipt to the agent of the regiment, 
 who paid the amount. The indict- 
 ment for forgery, describing the in- 
 strument as a receipt, was good. 
 Rex V. Hope, 1 M. C. C. 414. 
 
 The provisions of the 7 Geo. 4, c. 
 16, s. 38, extend to the forging and 
 uttering a receipt, or other docu- 
 ment, relating to a Chelsea pension, 
 supposed to be payable, and are not 
 confined to cases of forging and ut- 
 tering receipts and other documents 
 relating to pensions in actual exist- 
 ence. Reg. V. Pringle, 9 C. & P. 
 408 ; 2 M. C. 0. 127. 
 
 An instrument purporting to be 
 an agreement, and stamped as such, 
 and reciting that an arrangement 
 had been made between the parties 
 thereto in consideration of a certain 
 sum, the receipt of which was there- 
 by acknowledged, and then pro- 
 ceeding to release the party pay- 
 ing it from all further claim in the 
 matter in respect of which it was 
 paid, is a receipt or an acquittance 
 under 11 Geo. 4 & 1 Will. 4, c. 66, 
 s. 10, and may be so described in 
 an indictment for forgery. Reg. v. 
 mu, 2 Cox, C. C. 246. 
 
 Where it was shewn to be the 
 custom of bankers to give receipts 
 on the deposit of money in the fol- 
 lowing form : — " Received of A. 
 eighty-five pounds to his credit. 
 This receipt not transferable " ; and 
 to repay the money with interest on 
 the return of this receipt, with A.'s 
 name written on it : — Held, that 
 forging the name of A., and receiv- 
 ing the money due on its return, 
 was a forging and uttering an ac- 
 quittance for 85Z. Reg. v. Atkinson, 
 2 M. C. C. 215 ; Car. & M. 325. 
 
 It was the practice of the treasur- 
 er of a county, when an order had 
 
 been made on him for the payment 
 of expenses of a prosecution, to pay 
 the whole amount to the attorney 
 for the prosecution, or his clerk, and 
 to require the signature of every 
 person named in the order to be 
 written on the back of it, and op- 
 posite to each name the sum order- 
 ed to be paid to each person : — Held, 
 that such a signature is not a receipt, 
 the forging of which is an oflence 
 against 11 Geo. 4 & 1 Will. 4, c. 66, 
 s. 10, and that it is merely an au- 
 thority to the treasurer to pay the 
 amount. Reg. v. Cooper, 2 C. & K. 
 586— Erie. 
 
 A scrip certificate in a railway 
 company is not an accountable re- 
 ceipt, or an acquittance or a receipt 
 within 11 Geo. 4 <fc 1 Will. 4, c. 66, 
 s. 10 ; therefore the forgery of such 
 a document is not a felony, but a 
 misdemeanor only. Olark v. New- 
 sam, 1 Exch. 131 ; 5 Railw. Cas. 
 69 ; 16 L. J., Exch. 296 ; aS^. P. Reg. 
 V. West. 1 Den. C. C. 258 ; 2 0. & 
 K. 496; 2Cox, C. C. 437. 
 
 A turnpike toll-gate ticket is a re- 
 ceipt for money within 24 & 25 
 Vict. c. 98, s. 23. Reg. v. Fitch, 
 L. & C. 159 ; 9 Cox, C. C. 160 ; 8 
 Jur., N". S. 624 ; 10 W. R. 489 ; 6 
 L. T., K S.256. 
 
 The prisoner was a collector of 
 rates for a corporation. While in 
 the service he received cash from 
 the prosecutor on account of a rate, 
 for which he gave a receipt. After 
 he had left the service, he called on 
 the prosecutor for the balance, which 
 was paid, and for a receipt. The 
 prisoner altered the figures in the 
 former receipt, which then appeared 
 as a receipt for the entire rate due : 
 — Held, not to be a forgery. Reg. 
 V. Sargent, 10 Cox, C. C. 161— 
 Pigott. 
 
 Uttering Receipts.'] — A. applied to 
 B. to lend him money, and gave 
 him the name of the defendant as a 
 surety. B. went to him, and, to sat- 
 isfy himself of his respectability, 
 asked to see his receipts for rent 
 
 Digitized by Microsoft® 
 
WARRANTS, ORDERS, ETC. 
 
 211 
 
 and taxes. The defendant placed 
 in the hands of B., for his inspec- 
 tion, three documents purporting to 
 be receipts for poor rates, with the 
 intent to induce B. to advance mon- 
 ey to A. One of these receipts was 
 forged. B. inspected the docu- 
 ments, and then returned them to 
 the defendant : — Held, that the de- 
 fendant might be convicted of ut- 
 tering a forged, receipt, and that, 
 for the purpose of rendering him li- 
 able, it was not necessary that the 
 receipt should be used to get credit 
 upon it by its operating as a receipt, 
 but that it was sufficient if he used 
 it fraudulently to obtain money by 
 means of it. Reg. v. Ion, 6 Cox, C. 
 C. 1 ; 2 Den. C. C. 475. 
 
 Held, also, that it was immaterial 
 whether the money to be obtained 
 by means of it was for himself or for 
 any other person. Ih: 
 
 The prisoner, servant of A., ap- 
 plied to B. for payment of 17s. due 
 from B. to A. B. refused to pay it 
 without A.'s receipt. The prisoner 
 went away and returned with a doc- 
 ument, asfollows : — " Received from 
 Mr. Bendon, due to Mr. Warman, 
 17s. Settled." Whereupon B. paid 
 the debt : — Held, a question for the 
 jury whether the prisoner tendered 
 the receipt as the handwriting of A., 
 which would make him liable on 
 this indictment ; or as his own, 
 which would make his act a false 
 pretence. Reg. v. Inder, 1 Den. C. 
 C. 325 ; 2 C. & K. 635. 
 
 A. was treasurer of an unenrolled 
 friendly society, and it was his duty 
 to receive contributions from the 
 members, and pay them into a bank 
 in his own name for the benefit of 
 the society. At meetings of the so- 
 ciety he produced to the members a 
 fictitious pass-book, purporting to 
 vouch for the payment of monies by 
 him into the bank. This book did 
 not truly represent the state of 
 the account between himself and 
 the bank. He also ai various 
 times drew out monies which he 
 had paid in, and appropriated them 
 
 to his own use. He was con- 
 victed upon an indictment which 
 charged him with uttering a receipt 
 for money, the jury finding that he 
 presented a false account, with in- 
 tent thereby to obtain credit for 
 having duly paid into the bank the 
 various sums which he had received, 
 and to be continued in his office of 
 treasurer with a view to obtain other 
 monies from the society, which he 
 might fraudulently appropriate to 
 his own use : — Held, that the con- 
 viction was right. Reg. v. Smith, 
 
 9 Cox, C. C. 162; L. & C. 168; 8 
 Jur.,N. S. 572; 31 L. J., M. 0.154; 
 
 10 W. R. 583; 6 L. T., N. S. 300. 
 A paid secretary of an unenrolled 
 
 friendly society, of which his wife 
 was a member, was directed by the 
 society to pay into a savings bank 
 40/., given him for that purpose. 
 At the next meeting he handed in a 
 book, indorsed" Savings Bank, New- 
 street, Huddersfield," and on which 
 was written, " 1865, Oct. 30', receiv- 
 ed 40Z." The indorsement on and 
 entry in the book were forgeries, 
 and the money had not been paid 
 into the bank. He was convicted 
 of uttering this document, knowing 
 it to be forged : — Held, that the con- 
 viction was right. Reg. v. Moody, 
 L. & C. 173; 9 Cox, C. C. 166; 8 
 Jur., N. S., 574; 31 L. J., M. C. 
 166 ; 10 W. R. 585 ; 6 L. T., N. S. 
 301. 
 
 It being the duty of a railway- 
 station-master to pay B. for deliver- 
 ing and collecting parcels, he false- 
 ly told B. that the company had de- 
 termined to pay him only for col- 
 lecting, and not for delivering, and 
 accordingly then continued to pay 
 him only for collecting, but he con- 
 tinued to charge the company with 
 payments purporting to be made to 
 B.for delivering. In ordei- to fur- 
 nish a voucher to the company for 
 these pretended payments, the sta- 
 tion-master, after paying B.'s serv- 
 ant the sum entered under the head 
 " collecting," in the printed form 
 suppUed by the company, and ob- 
 
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212 
 
 FORGERY. 
 
 taining his receipt in writing for that 
 amount, without his or B.'s knowl- 
 edge, put a receipt stamp under the 
 servant's name, and wrote thereon 
 in figures a sum, beuig the aggre- 
 gate for collecting and delivering : 
 — Held, that he was properly con- 
 victed of forgery. Reg. v. Griffiths, 
 Dears. & B. C. 0. 548 ; 4 Jur., N. 
 S. 442 ; 27 L. J., M. C. 205 ; 7 Cox, 
 C. C. 501. 
 
 Receipts for Goods.] — A pawn- 
 broker's duplicate of goods pledged 
 with him is an accountable receipt 
 for goods. Reg. v. Fitchie, Dears. 
 & B. C. C. 175 ; 3 Jur., N. S. 419 ; 
 26 L. J., M. C. 90 ; 7 Cox, C. C. 
 257. 
 
 (u) Wilk. 
 
 By 24 & 25 Vict c. 98, s. 21, 
 " whosoever, with intent to defraud, 
 " shall forge or alter, or shall offer, 
 " utter, dispose of, or put off, know- 
 " ing the same to be forged or alter- 
 " ed, any will, testament, codicil or 
 " testamentary instrument, shall be 
 " guilty of felony, and being con- 
 " victed thereof, shall be liable,, at 
 " the discretion of the court, to be 
 " kept in penal servitude for life, or 
 " for any term not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding twO years, with or with- 
 " out hard labour, and with or with- 
 " out solitary confinement." {Sim- 
 ilar to 11 Geo. 4 & 1 Will. 4, c. 66, 
 s. 3.) 
 
 Before 7 Will. 4 & 1 Vict. c. 26, 
 s. 9, there could be no forgery of a 
 will of lands, attested only by two 
 witnesses. Rex v. WaM, 2 East, P. 
 C. 953. 
 
 To forge a will was a capital of- 
 fence, although the supposed testa- 
 tor was living. Rex v. Sterling, 1 
 Leach, C. C. 99 ; 2 East, P. C. 950 ; 
 S. P. Rex V. Ooogan, 1 Leach, C. C. 
 449 ; 2 East, P. C. 1001. 
 
 The forgery of the will of a non- 
 existing person is an offence within 
 
 the statute. Reg. v. Avery, 8 C. & 
 P. 596— Patteson. 
 
 A., an attorney, was employed 
 by B., as his solicitor, to put out 
 money upon mortgage. C. applied 
 to A. to procure him the advance of 
 money on mortgage, and to act as 
 his solicitor in procuring it. C. stat- 
 ed to A. that he was the owner of 
 certam freehold lands, and produced 
 a forged will in proof of his title, 
 which he placed in the hands of A. 
 
 B. advanced the money, A. acting 
 as his solicitor, by preparing the 
 mortgage-deeds : — Held, that, on 
 the trial of C. for uttering the fbrg- 
 ed will, A. was bound to .produce 
 the will, and also to give evidence 
 of what C. said to him as to the ad- 
 vance of the money. Ih. 
 
 On an indictment for forging a 
 will, the probate of that will unre- 
 pealed is not conclusive evidence of 
 its validity, so as to be a bar to the 
 prosecution. R,ex v. Battery, R. & 
 R. C. C. 342 ; S. P. Rex v. Gibson, 
 R. &, R. C. C. 343, n.— Ellenbo- 
 rough. 
 
 In an indictment for forging a 
 will, an intent to defraud the heir- 
 at-law was charged in one count, 
 and in another an intent to defraud 
 persons to the j urors unknown. The 
 only one found guilty was the son 
 of the testator, whose will was al- 
 leged to be forged. N"o evidence 
 was given that the testator had been 
 previously married, or left any other 
 children, but one of the witnesses 
 stated that he had heard a report 
 that the deceased had left another 
 son by a former wife :— Held, that 
 there was no evidence of an inten- 
 tion to defraud any one, to justify a 
 conviction. Reg. v. Tylney, 1 Den. 
 
 C. C. 319 ; 18 L. J., M. C. 36 ; .S-. 
 0. nom. Reg. v. Tufts, 3 Cox, C. 
 C. 160. 
 
 A forged will had been sent to 
 an attorney with some title-deeds 
 ostensibly for the purpose of asking 
 his advice upon them, but really 
 that he might see the will and act 
 
 Digitized by Microsoft® 
 
INSTEUMENTS OTHERWISE DESIGNATED. 
 
 213 
 
 upon it. The will being produced 
 at the trial by the attorney, the pris- 
 oner's counsel objected to the read- 
 ing of it on the ground that it was 
 a privileged communication, and 
 the objection was overruled at the 
 time, and afterwards on a case re- 
 served. Meg. V. Hayward, 2 Cox, 
 C, C. 23. 
 
 Signing a wrong christian name 
 to the person whose Avill a false in- 
 strument purports to be, is a forgery. 
 Rex V. Fitzgerald, 1 Leach, C. C. 
 20 ; 2 East, P. C. 953. 
 
 On an indictment for forging a 
 seaman's mil, the muster-book of 
 the Navy-Office is good evidence to 
 prove the identity of the supposed 
 testator. Rex v. Rhodes, 1 Leach, 
 C. C. 24 ; S. P. Rex v. Fitzgerald, 
 1 Leach. C. C. 20; 2 East, P. C. 
 953. 
 
 Three were jointly charged with 
 procuring other persons to titter a 
 forged will. The only evidence for 
 the prosecution was of separate acts, 
 at separate times and places, done 
 by each of the persons charged as 
 accessories. At the end of that ev- 
 idence one of them pleaded guilty : 
 — Held, that the other two might, 
 notwithstanding, be convicted. Jteg. 
 V. Barher, 1 C. & K. 442 — Gurney, 
 Williams and Maule. 
 
 Upon the trial of an indictment 
 for forging the will of one W., it 
 was proved that the prisoner's wife, 
 by his desire, took another will pur- 
 porting to be the will of W., also 
 forged, to a solicitor, and asked him 
 to advance money on mortgage of 
 the property which passed under 
 the will of her father W. ; that the 
 will being left with the solicitor and 
 discovered by him to be a forgery, 
 he made an exact copy of it and 
 then returned it to the prisoner. 
 What the wife stated to the solicit- 
 or was afterwards communicated 
 to the prisoner. The solicitor stated 
 that he was not then acting as the 
 prisoner's attorney, that he made no 
 charge for the interview, but that 
 
 if he had found the security suffi- 
 cient he should have advanced the 
 money. Notice was given to the 
 prisoner to produce that will, and 
 upon its non-production the copy 
 taken by the solicitor was tendered 
 "and received :— Held, that the in- 
 terview between the solicitor and 
 the prisoner's wife was not privileg- 
 ed as a confidential communication, 
 and that the conversation which 
 then took place, and the copy of the 
 will, were both admissible. Reg. v. 
 Farley, 2 Cox, C. C. 82 ; 2 C. & K. 
 313 ; 1 Den. C. C. 197. 
 
 (v) Instruments otherwise Designated. 
 By 24 & 25 Vict c. 98 s. 39, 
 " where by this or by any other act 
 " any person is or shall hereafter be 
 " made liable to punishment for 
 " forging or altering, or for oifering, 
 " uttering, disposing of, or putting 
 " off, knowing the same to be forged 
 " or altered, any instrument or writ- 
 " ing designated in such act by any 
 " special name or description, and 
 " such instrument or writing, how- 
 " ever designated, shall be in law a 
 " will, testament, codicil, or testa- 
 " mentary writing, or a deed, bond, 
 " or writing obligatofy, or a bill of 
 " exchange, or a promissory note 
 " for the payment of money, or an 
 " indorsement on or assignment of a 
 " bill of exchange or promissory 
 " note for the payment of money. Or 
 " an acceptanceof a bill of exchange, 
 " or an undertaking, warrant, order, 
 " authority, or request for the pay- 
 " ment of money, or an indorsement 
 " on or assignment of an undertak- 
 " ing, warrant, order, authority, or 
 " request for the payment of money, 
 " within the true intent and mean- 
 " ing of this act, in every such case 
 " the person forging or altering such 
 " instrument or writing, or offering, 
 " uttering, disposing of, or putting 
 " off such instrument or writing, 
 " knowing the same to be forged or 
 " altered, may be indicted as an of- 
 " fender against this act, and pun- 
 
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214 
 
 FORGERY. 
 
 " ished accordingly." {Former pro- 
 vision, 11 Geo. 4 & 1 Will. 4, c. 66, 
 s. 4.) 
 
 4. Obtaining Property upon Forged 
 Instruments. 
 By 24 & 25 Vict. c. 98, s. 38, 
 " whosoever, with intent to defraud, 
 " shall demand, receive, or obtain, 
 "•or cause or procure to be deliver- 
 " ed or paid to any person, or en- 
 " deavor to receive or obtain, or to 
 " cause or procure to be delivered or 
 " paid to any person, any chattel, 
 " money, security for money, or other 
 " property whatsoever, under, upon, 
 " or by virtue of any forged or altered 
 " instrument whatsoever, knowing 
 " the same to be forged or altered, 
 " or under, upon, or by virtue of 
 " any probate or letters of adminis- 
 " tration, knowing the will, testa- 
 " ment, codicil, or testamentary 
 " writing on which such probate or 
 " letters of administration shall 
 " have been obtained to have been 
 " forged or altered, or knowing 
 " such probate or letters of adminis- 
 " tration to have been obtained by 
 " any false oath, affirmation, or 
 " affidavit, shall be guilty of felony, 
 " and being (jonvicted thereof shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for any term not exceeding 
 " fourteen years, and not less than 
 " five years (27 & 28 Vict. c. 47), 
 " or to be imprisoned for any term 
 " not exceeding two years, with or 
 " without hard labour, and with or 
 " without solitary confinement." 
 See Meg. v. Adams, 1 Den. C. C. 38. 
 
 5. Parties Indictable. 
 Principals and Accessories.^ — By 
 24 & 25 Vict. c. 98, s. 49, " in the 
 " case of every felony punishable 
 " under this act, every principal in 
 " the second degree, and every ac- 
 " cessory before the fact, shall be 
 " punishable in the same manner as 
 " the principal in the first degree is 
 " by this act punishable ; and every 
 " accessory after the fact to any 
 
 ' felony punishable under this act 
 ' shall on conviction be liable, at 
 ' the discretion of the court, to be 
 ' imprisoned for any term not ex- 
 ' ceeding two years, with or with- 
 ' out hard labour, and with or 
 ' without solitary confinement ; and 
 ' every person who shall aid, abet, 
 ' counsel, or procure the commis- 
 ' sion of .any misdemeanor punisha- 
 ' ble under this act shall be liable 
 ' to 'be proceeded against, indicted, 
 ' and punished as a principal ofiend- 
 • er." 
 
 It is not sufficient to make a per- 
 son a principal in uttering a forged 
 note, that he came with the utterer 
 to the town where it was uttered, 
 went out with him from the inn 
 at which they put up a little before 
 he uttered it, and joined him again 
 in the street, a short time after the 
 uttering, and at some little distance 
 from the place of uttering, and ran 
 away when the utterer was appre- 
 hended. Rex Y. Davis, R. & R. C. 
 C. 113. 
 
 If a wife, by the incitement of 
 her husband, knowingly uttered in 
 his absence a forged order and cer- 
 tificate for the reception of prize- 
 money, under 43 Geo. 3, c. 123, 
 they might be indicted together, 
 she as a principal on the statute, and 
 he as an accessory, before the fact, 
 at common law. Rex v. Morris, 
 2 Leach, C. C. 1096. 
 
 Persons privy to the uttering of 
 a forged note by previous concert 
 with the utterer, but who were not 
 present at the time of uttering, or 
 so near as to be able to afford any 
 aid or assistance, are not principals, 
 but accessories before the fact. 
 Rex V. Soares, R. & R. C. C. 25 ; 2 
 East, P. G. 974. 
 
 If several plan the uttering of a 
 forged order for payment of money, 
 and it is uttered accordingly by one 
 in the absence of the others, the 
 actual utterer is alone the principal. 
 Rex V. Badcock, R. & R. C. C. 249. 
 If several combine to forge Bank 
 of England notes, and each executes 
 
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INDICTMENT. 
 
 215 
 
 by himself a distinct part of the forg- 
 ery, but they are not together when 
 the notes are completed, they are nev- 
 ertheless all guilty as principals. Rex 
 V. Bingley, K. & R. C. C. 446. 
 
 If several make distinct parts of 
 a forged instrument, each is a prin- 
 cipal, though he does not know by 
 whom the other parts are executed, 
 and though it is finished by one 
 alone in the absence of the others. 
 Rex V. Kirkwood, 1 M. C. C. 304. 
 
 The makers of the paper and 
 plate respectively, for the purpose 
 of forging a note afterwards filled 
 up by a third person, are principals 
 in the forgery with that person, 
 though each executed his part in 
 the absence of the others, and with- 
 out knowing by whom the other 
 parts are executed. Rex v. Dade, 
 1 M. C. C. 307. 
 
 Persons not present, nor suflicient- 
 ly near to give assistance at the 
 time of uttering forged notes, are 
 not principals, although they may be 
 accessories before the fact. Rex v. 
 Stewart, R. & R. C. C. 363. 
 
 Other Parties.^ — The prisoner was 
 the paid secretary of an unen- 
 roUed friendly society, of which his 
 wife was a member. He deUvered 
 to the society a book on which was 
 endorsed " Savings Bank, New- 
 street, Huddersfield," and in which 
 was an entry, " 1855, Oct. 30, re- 
 ceived 40Z." It was proved that 
 the entry was a forgery, and that 
 the money had not been paid into 
 the savings-bank. The jury having 
 found that the prisoner was guilty 
 of knowingly uttering with intent 
 to deceive the society, and that he 
 had, in fact, defrauded it, it was 
 objected for the prisoner that being 
 the husband of a member he was a 
 part-owner, and could not be made 
 cruninally liable for defrauding his 
 co-owners, and also that the docu- 
 ment was not the subject of forgery: 
 —Held, that both objections were 
 untenable, and that the conviction 
 was right. Reg. v. Moody, 9 Cox, 
 
 C. C. 166; L. & C. 173; 31 L. J., 
 M. C. 156 ; 8 Jur., N. S. 574 ; 10 
 W. R. 585; 6 L. T., N. S. 301. 
 
 The prisoner was the treasurer, 
 and also a member of an unenroUed 
 friendly society, and it was his du- 
 ty to pay monies received into the 
 society's bankers. The prisoner 
 produced to the society a fictitious 
 book, purporting to be the bank 
 pass-book, containing entries pur- 
 porting to vouch that he had paid 
 certain monies into the bank, and 
 that the bank acknowledged the re- 
 ceipt of them, which book did not 
 truly represent the state of account. 
 The prisoner having at various 
 times drawn out monies which he 
 had appropriated for his own pur- 
 pose, the jury found the prisoner 
 guilty of presenting a false account 
 with intent to obtain credit f©r hav- 
 ing paid the monies into the bank,, 
 with a view to obtain other monies 
 from the society which he might 
 fraudulently appropriate to his own 
 use : — Held, that the prisoner, 
 though a member of the society, 
 might properly be convicted of ut- 
 tering a forged receipt, with intent, 
 &c. Reg. V. Smith, 9 Cox, C. C 
 162; L. '& C. 168; 8 Jur., N. S. 
 572; 31 L. J., M. C. 154; 10 W. 
 R. 583 ; 6 L. T., N. S. 300. 
 
 6. Indictment. 
 
 Describing Instrument.^ — By 24 
 & 25 Vict. c. 98, s. 42, " in any in- 
 " dictment for forging, altering, of- 
 " fering, uttering, disposing or put- 
 " ting off any instrument, it shall be 
 " sufficient to describe such instru- 
 " ment by any name or designation 
 " by which the same may be usually 
 " known, or by the purport thereof, 
 " without setting out • any copy or 
 " fac-simile thereof, or otherwise 
 " describing the same, or the value 
 " thereof" (14 & 16 Vict. c. 100, 
 s. 5, and 2 & 3 Will. 4, c. 123, s. 3, 
 former enactments.) 
 
 And by s. 43, " in any indictment 
 " for engraving or making the whole 
 " or any part of any instrument, mat- 
 
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216 
 
 FORGERY. 
 
 " ter or thing wh atpoever, or for using 
 " or having the unlawful custody 
 " or possession of any plate or oth- 
 " er matei-ial upon which the whole 
 " or any part of any instrument, 
 " matter or thing whatsoever shall 
 " have been engraved or made, or 
 " for having the unlawful custody 
 " or possession of, any paper upon 
 " which the whole or any part of 
 " any instrument, matter or thing 
 " whatsoever shall have been made 
 " or printed, it shall be sufficient to 
 " describe such instrument, matter 
 " or thing by any name or designa- 
 " tion by which the same may be 
 " usually known, without setting 
 " out any copy or fac-simile of the 
 " whole or any part of such instru- 
 " ment, matter or thing." {^Similar 
 to 14 & 15 Vict. c. lOO; s. 6.) 
 
 General Points.^ — In an indict- 
 ment, the words, " in manner and 
 form following, that is to say," do 
 not bind the party to recite the in- 
 strument verbatim, nor render a 
 mere formal omission or mistake 
 fatal. Rex v. May, 1 Dougl. 193. 
 
 If any part of a true instrument 
 is altered, the indictment may lay 
 it to be a forgery of the whole in- 
 strument. Rex V. Dawson, 2 East, 
 P. C. 978 ; 1 Str. 19. 
 
 For every alteration of a true in- 
 strument makes it a forgery of the 
 whole. lb. 
 
 In an indictment for forgery, a 
 description to a common intent of 
 the person intended to be defraud- 
 ed is sufficient. Rex v. Lovell,. 1 
 Leach, 0. 0. 248 ; 2 East, P. C. 
 990. 
 
 In an indictment for forging, the 
 words, " purporting to be a bank- 
 note," mean that the instrument 
 upon the face of it appears to be a 
 bank-note ; and the want of such 
 appearance cannot be supplied by 
 the representation of the party ut- 
 tering it. Rex V. Jones, 1 Leach, 
 C. C. 204 ; 2 East, P. ' C. 883 ; 1 
 Dougl. 302. 
 
 An indictment for forging a bill 
 
 of exchange directed to RanFom, 
 Moreland and Hammersley, stating 
 that it purported to be directed to 
 George Lord Kinnaird, William 
 Moreland and Thomas Hammers- 
 ley, by the names and description 
 of Ransom , Moreland and Hammers- 
 ley, is bad ; for the purport and 
 tenor are repugnant. Rex v. Gil- 
 christ, 2 Leach, C. C. 657 ; 2 East, 
 P. C. 982. 
 
 Upon Bank Notes.] — Where an 
 indictment on 41 Geo. 3, c. 57, s. 2, 
 stated that the prisoner knowingly 
 and without any authority from a 
 certain corporate company called, 
 &c., had in his custody a certain 
 plate on which was engraved part 
 of a promissory note, purporting to 
 be the promissory note of the com- 
 pany ; and it appeared that this 
 company carried on the business of 
 bankers, although incorporated for 
 a totally different purpose : — Held, 
 that the indictment was bad, hav- 
 ing omitted to aver that the com- 
 pany " carried on the business of 
 bankers." Rex v. Oatapodi, R. & 
 R. C. C. 65. 
 
 A bank post-bill cannot, in an 
 indictment for forging and uttering, 
 be described as a bill of exchange ; 
 but it may be described as a bank 
 bill of exehange. Rex v. Birkett, 
 R. & R. C. C. 251. 
 
 Upon Bills and Notes.] — A count 
 charging a prisoner with uttering a 
 forged bill, with intent to defraud 
 A., and setting out the bill with 
 the acceptance upon it, is not sup- 
 ported by proving that the prisoner 
 uttered the bill, and that the accept- 
 ance on it was a forgery. Rex v. 
 Horwell, 6 C. & P. 148 : 1 M. C. 
 C. 405. 
 
 An indictment, charging that 
 the defendant, having in his posses- 
 sion a bill of exchange, purporting 
 to be directed to one J. King, by 
 the name and description of J. 
 Ring, forged the acceptance of the 
 said J. King, is bad, because the 
 
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INDICTMENT. 
 
 217- 
 
 word " purport" means what ap- 
 pears on the face of the instrument, 
 and the bill did not purport to be 
 drawn on J. King. Rex v. Bead- 
 ing, 1 East, 180, n. 
 
 In an indictment for forgery, a 
 count which, since 11 Geo. 4 & 1 
 Will. 4. c. 66, charged, that the 
 prisoner '' did falsely make, forge 
 and counterfeit, and did cause and 
 procure to be falsely made, forged 
 and counterfeited, and did willingly 
 act and assist in the false making, 
 forging and counterfeiting" a bill 
 of exchange, was good ; as were 
 .counts charging that he did utter 
 and piiblish as true, and did after 
 dispose of and put away the bill. 
 Rex Y. Brewer, 6 C & P. 363 — 
 Park. 
 
 An indictment for forging a bill 
 of exchange, stating it to be signed 
 by H. H. instead of purporting only 
 to be so signed, the signature itself 
 being a forgery, is bad. Rex v. Car- 
 ter, 2 East, P. C. 985. 
 
 An indictment on 2 Geo. 2, c. 25, 
 charging that the prisoner felonious- 
 ly altered a bill by making, forg- 
 ing and adding a cipher, was good, 
 though the words of the statute 
 were, " if any person shall falsely 
 make or forge, counterfeit, &c." 
 Rex V. Elsworth, 2 East. P. C. 986. 
 
 In an indictment for forging a 
 promissory note, the forged note 
 might, under 2 & 3 Will. 4, c. 123, 
 s. 3, be described as " a certain 
 forged promissory note, for the pay- 
 ment of 29Z.," without stating the 
 date. Rex v. Burgiss, 7 C. & P. 
 490— Littledale. 
 
 On Foreign Notes or Bills. '\ — An 
 indictment for uttering a forged 
 bill of exchange set out as follows : 
 — " a 4 mois de date par cette let- 
 tre de change, k I'ordre de nous- 
 mfime la somme de 500 livres ster- 
 ling," — and translated, — " at four 
 months' datft by this bill of ex- 
 change, to the order of ourselves, 
 the sum of five hundred pounds 
 sterling," is good. Bex v. Szudur- 
 skie, 1 M. C. C. 429. 
 Fish. Dig.— 16. 
 
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 Where a prisoner was convicted 
 of forging an instrument (purport- 
 ing to be a Prussian note) in a for- 
 eign language, but no count in the 
 indictment contained an English' 
 translation of the note : judgment 
 was ordered to be arrested. Rex 
 V. Goldstein, 7 Moore, 1 ; 10 Price, 
 88 ; 3 B. & B. 201 ; R. & R. C. G. 
 473. 
 
 Sewing to the parchment on 
 which the indictment is written im- 
 pressions of forged notes taken from 
 engraved plates, is not a legal 
 mode of setting out the notes in the 
 indictment. Bex v. Harris, 7 C. 
 & P. 429. 
 
 Foreign notes were set out in an 
 indictment in the original language, 
 but the translation omitted some 
 words which were in the margin or 
 a border round the body of the 
 note, and denoted the year in which 
 the notes were issued, and it ap- 
 peared that, without these words 
 the notes would not be capable of 
 being circulated in the country to 
 which they belonged : — Held, that 
 the translation was imperfect. Ih. 
 
 Describing a foreign note wholly 
 in the English language is not suffi- 
 cient in an indictment for forgery, 
 notwithstanding the 2 & 3 Will. 4, 
 c. 123, s. 3; but this objection, pro- 
 vided the description was in the 
 words of the statute creating the 
 offence, could only be taken advan- 
 tage of by demurrer, and is cured 
 after verdict by 7 Geo. 4, c. 64, s. 
 21. lb. 
 
 An indictment imder 11 Geo. 4 & 
 1 Will. 4, c. 66, s. 19, for felonious- 
 ly having in possession plates upon 
 which were engraved a promissory 
 note for payment of money of a for- 
 eign prince, inaccurately setting out 
 the note in the foreign language 
 and the translation, and with fac- 
 similes of the note not engrossed in 
 the indictment, but attached there- 
 to on paper, was bad. Bex v. War- 
 shaner, 1 M. C. C. 466. 
 
 Counts under 2 & 3 Will. 4, c. 
 123, s. 3, stating the plates to have 
 
218 
 
 FORGERY. 
 
 engraved on them, in the Polish lan- 
 guage, a promissory note for pay- 
 ment of money, to wit, for the pay- 
 ment of five florins, purporting to 
 be a promissory note for payment 
 of money of a certain foreign prince, 
 without stating the value, were good 
 after verdict. lb. 
 
 An indictment under 1 1 Geo. 4 
 & 1 Will. 4, c. 66, for uttering a 
 forged foreign promissory note, 
 needs not allege it to be payable in 
 England. Reg. v. Lee, 2 M. & Rob. 
 281— Coleridge. 
 
 Upon Bonds?^ — A superfluous de- 
 scription of the instrument forged is 
 not material. Therefore an indict- 
 ment for forging a bond, laying it 
 to be " a bond and writing obliga- 
 tory," was good upon 2 Geo. 2, c. 
 25, though both terms were used in 
 the statute ; and a bond is a writing 
 obligatory, though the converse 
 does not hold generally. Rex v. 
 Dunnett, 2 East, P. C. 985 : 2 Leach, 
 C. C. 581. 
 
 Since 14 & 15 Vict. c. 100, s. 8, it 
 is suiBcient, upon an injiictment for 
 forgery and ut^i.isg * sefta^'^^^y 
 the intent genei\\V *° co^^'^'^^nd 
 the prisoner m\S " ^WLSPTCted, 
 though it does not *%ear that he 
 had any intention Jsmmately to de- 
 fraud the party 'whose signature he 
 had forged, he having defrauded 
 the party to whom he uttered the 
 instrument. 'Reg. v. Trenjield, 1 F. 
 & F. 43— Channell. 
 
 Upon Deeds.] — A count for utter- 
 ing a forged deed described it as 
 " a certain deed purporting to be 
 made on the first day of March, 
 1837, between R. W. of the one 
 part, and D. G. of the other part, 
 purporting to be an under lease by 
 the said R. W. to the said D. G. of 
 certain lands, tenements and premis- 
 es therein mentioned, subject to the 
 payment of the yearly rent of 8?., 
 payable on the first day of March 
 in every year,, and purporting to 
 contain a covenant by the said D. 
 G. with the said R. W. for the pay- 
 
 ment by the said D. G. to the said 
 R. W. of the yearly rent of 8Z.," is 
 good, under 2 & 3 Will. 4, o. 123, 
 s. 3. Beg. v. Davies, 9 C. & P. 
 427 ; 2 M. C. C. 177. 
 
 A count for forging or uttering a 
 deed, purporting to be a lease of 
 certain premises, described shortly, 
 is good, without setting it out ver- 
 batim, lb. 
 
 The instrument forged may be 
 described as a deed, without setting 
 it out, or averring facts to shew 
 that it was such a deed as might be 
 the subject of larceny. Meg. v. 
 Gollim, 2 M. & Rob. 461— Rolfe. 
 
 Upon Receipts.'] — " As follows " 
 is a sufiicient averment of the tenor 
 of a forged receipt: Rex v. Powell, 
 2 W. BI. 787 ; 1 Leach, C. C. 77 ; 
 2 East, P. C. 976. 
 
 A receipt, signed by the captain 
 of a detachment, on the authority 
 of which money is received from an 
 army agent, on account of the 
 monthly subsistence of such detach- 
 ment, might be properly described 
 as a receipt for money, under 2 & 3 
 Will. 4, c. 123, s. 3, although it ap- 
 peared that such instruments were 
 frequently cashed, upon indorsement , 
 by tradesmen in the neighbourhood 
 of the place where the regiment was 
 stationed, and the amount after- 
 wards received by them of the army 
 agent. Rex v. Rice, 6 C. & P. 634 ; 
 S. P., Rex V. Hope, 1 M. C. C. 414. 
 
 An indictment for forging a re- 
 ceipt in the following form : — " 6th 
 January, 1830. 16Z. \5s. M. For 
 the high constable James Hughes," 
 does not require explanatory aver- 
 ments. Reg. V. Boardman, 2 M. & 
 Rob. 147 ; 2 Lewin, G. C. 181— Al- 
 derson. 
 
 A count charging the uttering a 
 forged receipt simply is good. Itex 
 V. Martin, 1 M. C. C. 483 ; 7 C. & 
 P. 549. • 
 
 An indictment charging that a 
 precept had been issued to Christo- 
 pher Hindle, high constable of B., 
 to collect 21^. lis. 4rf., and that a 
 
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INDICTMENT. 
 
 219 
 
 receipt for 211. lis. 4tZ.- had been 
 forged, by falsely cementing to the 
 precept, at the foot, a receipt in the 
 handwriting of Henry Hargreaves, 
 of the tenor following : — " 1825, re- 
 ceived H. H.,"— which had before 
 then been written by Hargreaves for 
 other money, and that the prisoner 
 uttered it with intent to defraud 
 Hargreaves, is bad, because there 
 is nothing to shew what the initials 
 H. H. meant, and nothing to shew 
 what connexion Hargreaves had 
 with Hindle, or with the receipt. 
 Hex V. Barton, 1 M. C. C. 141. 
 
 An indictment for uttering a forg- 
 ed receipt for money, which sets 
 out the receipt in terms, need not 
 set forth the bill of items to which 
 the receipt refers, as that is matter 
 of evidence. Hex v. Testick, 2 East, 
 P. C. 925 ; ,S'. P., Bex v. Thompson, 
 2 Leach, C. C. 632, n. ; 1 East, 181, 
 n. 
 
 An indictment on 7 Geo. 4, c. 16, 
 s. 38, charging the prisoner with 
 haying forged and uttered " a cer- 
 tain receipt relating to and concern- 
 ing the payment of a certain pen- 
 sion, to wit, Al. lis. Q\d., supposed 
 to be payable to one N. M., as an 
 outpensioner of the Royal Hospital 
 for Soldiers at Chelsea, in the county 
 of Middlesex : " is good. Reg. v. 
 Pringle, 9 C. & P. 409 ; 2 M. C. C. 
 127. 
 
 Upon Requests, Orders or Warrants 
 for Delivery of Goods.'\ — A count in 
 an indictment for forging a request 
 for the delivery of goods, which de- 
 scribed the forged instrument as 
 " a certain forged request for the 
 delivery of goods to one J. R.," 
 was good under 2 & 3 Will 4, e. 
 128, s. 3, and was not too general. 
 Seg. V. Hobson, 9 C. & P. 423. 
 
 A forged request, to be within 11 
 Geo. 4 & 1 Will. 4, c. 66, s. 10, 
 must import on the face of it to be 
 a itequest; and if the words have 
 not necessarily that effect, but are 
 so understood in the trade, there 
 must be an innuendo to explain 
 
 Digitized by Microsoft® 
 
 them. RexY. Oullen, 1 M. C. C 
 300; 5 C. &P.116. 
 
 A request for the delivery of 
 goods may be so described in an in- 
 dictment for forgery, without set- 
 ting it out verbatim, lieg. v. Roh- 
 son, 2M. C. C. 182. 
 
 If an indictment for forgery sets 
 out a forged instrument in hsec ver- 
 ba, describing it as a warrant, or- 
 der and request for the delivery of 
 goods, it is not necessary, in order 
 to sustain the indictment, that, the 
 instrument should answer all the 
 terms of that description. Reg.\. 
 WiUiams, 4 Cox, C. C. 356 ; 2 Den. 
 C. C. 61 ; 14 Jur. 1052 ; 20 L. J., 
 M. C. 106. 
 
 A count in an indictment for 
 forgery alleging the forgery gener- 
 ally to be of a certain warrant and 
 order for the delivery of goods with- 
 out more particularity, is sufficient. 
 Reg. V. Smith, 2 Cox, C. C. 358. 
 
 Upon Warrants or Orders for 
 Payment of Money. '[ — A prisoner 
 was indicted on 2 & 3 Will. 4 , c. 
 123, s. 3, for forging a warrant for 
 the payment of money. The forged 
 paper was as follows : — " This is to 
 satisfy that R. R. as swept the flues 
 and cleaned the bilges, and repaired 
 four bridges of the Princess Victoria, 
 (signed) J. N., U. 10s. Od." Itwas 
 proved that, by the course of deal- 
 ing between the parties, this vouch- 
 er, if genuine, would have author- 
 ized L. & Co. to pay 41. 10s. Od. : — 
 Held, that it is not necessary that a 
 warrant for the payment of money 
 should be addressed to any particu- 
 lar person ; and that, as it appeared 
 that this document, if genuine, 
 would have been a voucher for the 
 payment of the money mentioned in 
 it, that was a sufficient proof of the 
 allegation that it was a warrant for 
 the payment of money. Reg. v. 
 Rogers, 9 C. & P. 41. 
 
 A forged authority to draw mon- 
 ey, which is well described as a 
 warrant, is not an order for the pay- 
 ment of the money, and an indict- 
 
220 
 
 FORGERY. 
 
 ment describing such a forged au- 
 thority for the payment of money 
 as a warrant and order, is bad. 
 Reg. V. Dixon, 3 Cox, 0. C. 289— 
 Alderson. 
 
 An indictment which charges a 
 forged cheque to be " a warrant and 
 order for the payment of money, 
 which warrant and order are in the 
 words and figures following," is 
 good. TR,ex v. Orowiher, 5 C. & P. 
 316 — Bosanquet. 
 
 Iijdictment for forging an order 
 for relief to a discharged prisoner, 
 under 3 Geo. 4, c. 85, being in 
 many instances ungrammatical and 
 at variance from the act : — Held, 
 bad. Hex v. Donnelly, 1 M. C. 0. 
 438. 
 
 An indictment for presenting a 
 forged order to W. L., treasurer, 
 &c., pretending it was genuine, and 
 obtaining from him under it 41. 10s. 
 6d., after charging that the prisoner, 
 with intent to cheat the treasurer, 
 presented the order, and that he 
 knowingly, &c., pretended it was a 
 genuine order, proceeded — " and so 
 the jurors, &c., say that the prison- 
 er, on the day and year, &c., did ob- 
 tain the said sum of il. 10s. 6d."; 
 but the intent to cheat and defraud 
 W. L. was not stated in that part 
 of the indictment, nor was the ob- 
 taining charged to have been effect- 
 ed knowingly and designedly : — 
 Held, bad. Hex v. Rushworth, R. & 
 R. C. C. 317 ; 1 Stark, 396. 
 
 Upon Wills.'] — An indictment for 
 forging a paper writing purporting 
 to be the will of A. is good. Rex 
 V. Birch, 2 W. Bl. 790; 1 Leach, 
 C. C. 79 ; 2 East, P.O. 980. 
 
 Other Instruments.] — A count 
 which, without an inducement, 
 charging that the prisoner " did 
 forge a writing, .as a certificate of 
 W. N., with intent to deceive and 
 defraud W. P. and others," is good. 
 Reg. V. Toshack, 13 Jur. 1011 ; 1 
 Den. C. C. 492. 
 
 7. Allegation and Proof of Intent to 
 defraud. 
 
 By 24 & 25 Vict. c. 98, s. 44, 
 " it shall be sufficient in any indict- 
 " ment for forging, altering, utter- 
 " ing, offering, disposing of, or put- 
 " ting off any instrument whatso- 
 '' ever, where it shall be necessary 
 " to allege an intent to defraud, to 
 " allege that the party accused did 
 " the act with intent to defraud, 
 " without alleging an intent to de- 
 " fraud any particular person; and 
 " on the trial of any such offence it 
 " shall not be necessary to prove an 
 " intent to defraud any particular 
 " person, but it shall be sufficient to 
 " prove that the party accused did 
 " the act charged with an intent to 
 '■ defraud." [Similar former enact- 
 ment, 14 & 16 Vict. c. 100, s. 8.) 
 
 Since 14 & 15 Vict. c. 100, s. 8, 
 there must be proof of an intent to 
 defraud some person, in order to 
 support the indictment for forgery, 
 though it need not be alleged that it 
 was done with intent to defraud a 
 particular person. Reg. v. Hodgson, 
 Dears. & B. C. C. 3 ; 2 Jur., N. S. 
 453; 25L. J.,M. C. 78. 
 
 It is only necessary to aver a gen- 
 eral intent to defraud A. B., with- 
 out setting out the manner in which 
 that fraud was to be effected. Rex 
 V. Powell, 2 W. Bl. 787 ; 1 Leach, 
 C.C.77; 2 East, P.O. 976. 
 
 It is sufficient, upon an indictment 
 for forgery and uttering a bond, to 
 lay the intent generally to defraud ; 
 and the prisoner may be convicted, 
 although it does not appear that he 
 had any intention ultimately to de- 
 fraud the party whose signature he 
 had forged, he having defrauded 
 the party to whom he uttered the 
 instrument. Reg. v. Trenfield, 1 P. 
 & F. 43— Channell. 
 
 The words " with intent," in an 
 indictment for forgery, apply to the 
 verb to which the prisoner's name 
 is the nominative ; therefore, a count 
 which states that the prisoner did 
 forge a promissory note for bOl. " on 
 
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ALLEGATION AISID PROOF, ETC. 
 
 221 
 
 which note is an indorsement as fol- 
 lows : — C. J., with intent to defraud 
 W. R. S.," sufficiently charges that 
 the forged note, and not the indorse- 
 ment, was the thing by which the 
 prisoner intended to defraud W. R. 
 S. Rex V. James, 7 C. & P. 553 — 
 Patteson. 
 
 The fact that the prisoner has 
 given guaranties to his bankers, to 
 whom he paid a forged note to a 
 larger amount than the note, does 
 not so completely negative an at- 
 tempt to defraud them as to with- 
 draw the case from the considera- 
 tion of the j ury. Ih. 
 
 On the trial of an indictment for 
 uttering a forged bill of exchange, 
 if the jury is satisfied that the pris- 
 oner uttered the bill as a true bill, 
 meaning it to be taken as such, and 
 at that time knew it to be forged, 
 they ought to find, as a necessary 
 consequence of law, that the prison- 
 er intended to defraud, and the jury 
 ought to infer the intent to defraud, 
 if they are satisfied on the two other 
 points. Beg. v. Hill, 8 C. & P. 
 274. 
 
 If a person, at the time he uttered 
 a bill of exchange with a forged ac- 
 ceptance on it, knew that accept- 
 ance to be forged, and meant the 
 bill to be taken as a bill with a gen- 
 uine acceptance upon it, the inevit- 
 able conclusion is, that he intended 
 to defraud. Reg. v. Cooke, 8 C. & 
 P. 582— Patteson. 
 
 So, it is a consequence, and al- 
 most a consequence of law, that he 
 must intend to defraud the person 
 to whom he pays the bill, and also 
 the person whose name is used ; as 
 everything which is the natural 
 consequence of the act must be 
 taken to be the intention of the 
 prisoner. Ih. 
 
 A jury ought to infer an intent 
 to defraud the person who would 
 have to pay a forged instrument if 
 it was genuine, although from the 
 manner of executing a forgery, or 
 from that person's ordinary caution, 
 it would not be likely to impose on 
 
 him, and although the object was 
 generally to defraud whoever might 
 take the instrument, and the inten- 
 tion of defrauding in particular the 
 person who would have to pay the 
 instrument if genuine did not enter 
 into the prisoner's contemplation. 
 Rex V. Mazagora, R. & R. C. C. R. 
 291. 
 
 In forgery it is not required, in 
 order to constitute in point of law 
 an intent to defraud, that the party 
 committing the offense should have 
 had present in his mind an intention 
 to defraud a particular person, if 
 the consequences of his act would 
 necessarily or possibly be to defraud 
 any person; but there must at all 
 events be a possibility of some per- 
 son being defrauded by the forgery. 
 Reg. V. ^Marcus, 2 C. & K. 356— 
 Cresswell. 
 
 A prisoner asked his employer to 
 give him Al. to buy " settledated 
 striking acid," to be used in the 
 employer's tanning business, which 
 the prisoner superintended ; the em- 
 ployer gave him the money, and 
 about four days after the prisoner 
 delivered to his employer a forged 
 receipt for the U., which purported 
 to come from a firm of whom the 
 acid had been bought : — Held, that 
 proof of these facts was sufficient 
 evidence of uttering the forged re- 
 ceipt with intent to defraud the 
 employer. Rex v. Martin, 7 C. & 
 P. 549 ; 1 M. C. C. 483. 
 
 On a charge of uttering a receipt 
 with intent to defraud, the uttering 
 being to the employer, and he ap- 
 pearing to have been indebted to 
 the prisoner at the time, negatives 
 the intent to defraud. Reg. v. 
 Bradford, 2 F. & F. 859— Erie. 
 
 Where, on the trial of a prisoner 
 for forging a note, it appeared that 
 he had kept the note in his posses- 
 sion, and never uttered or attempt- 
 ed to make any use of it : — Held, 
 whether the note was made in- 
 nocently, or with intent to defraud, 
 was for the consideration of the 
 jury, and to be collected from the 
 
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222 
 
 FORGERY. 
 
 facts proved. Hex v. Crocker, R. 
 & R. C. 0. 97 ; 2 N. R. 87 ; 2 
 Leach, C. C. 987. 
 
 Uttering a forged stock receipt to 
 a person who employed the prisoner 
 to buy stock to that amount, and 
 advanced the money, is sufficient 
 evidence of an intent to defraud 
 that person; and the oath of the 
 person to whom the receipt was 
 uttered, that he believed the pris- 
 oner had no such intent, will not 
 repel the presumption of an intention 
 to defraud. Hex v. Sheppard, 1 
 Leach, 0. 0. 226; 2 East, P. C. 
 967 ; R. & R. C. C. 169. 
 
 The intent to defraud the bank 
 constitutes the offence of feloniously 
 disposing of and putting away 
 counterfeit bank-notes, and it is not 
 done away by the circumstance 
 that the notes were furnished by 
 the prisoner in consequence of an 
 application made by an agent em- 
 ployed thereto by the bank, and 
 that they were delivered to him as 
 forged notes, rfpr the purpose of 
 being disposed of by that agent. 
 Beo! V. Ilolden, 2 Taunt. 334. 
 
 Where a forged request for the 
 delivery of goods was addressed in 
 her maiden name to a female, who 
 prior to the date of it had married : 
 — Held, that the party uttering it 
 might properly be convicted, on an 
 indictment charging the intent to 
 be to defraud the husband. Hex v. 
 Carter, 7 0. & P. 134. 
 
 If a banker authorized to pay a 
 sum of money to three persons in 
 particular, and to them only, pays 
 it to one of them and two strangers, 
 who personate the other two, his 
 liability continues, and the false 
 instrument upon which the money 
 was obtained may be charged to 
 have been made with intent to de- 
 fraud them. Dixon's case, 2 Lewin, 
 C. C. 178— Patteson. 
 
 8. Jurisdiction to try. 
 By 24 & 25 Vict. c. 98, s. 41, 
 " if any person shall commit any 
 " offence against this act, or shall 
 
 " commit any offence of forging or 
 " altering any matter whatsoever, or 
 " of offering, uttering, disposing of, 
 " or putting off any matter whatso- 
 " ever, knowing the same to be 
 " forged or altered, whether the 
 " offence in any such case shall be 
 " indictable at common law, or by 
 " virtue of any act, passed or to be 
 " passed, every such offender may 
 " be dealt with, indicted, tried, and 
 " punished, in any county or place 
 " in which he shall be apprehended 
 " or be in custody, in the same 
 " manner in all respects as if his 
 " offence had been actually com- 
 " mitted in that county or place ; 
 " and every accessory before or 
 " after the fact to any such offence, 
 " if the same be a felony, and every 
 " person aiding, abetting, or coun- 
 " selling the commission of any 
 " such offence, if the same be a mis- 
 " demeanor, may be dealt with, 
 " indicted, tried, and punished, in 
 " any county or place in which he 
 " shall be apprehended or be in 
 " custody, in the same manner in 
 "all respects as if his offence, and 
 " the offence of his principal, had 
 " been actually committed in such 
 " county or place." (Similar to 11 
 Geo. 4 & 1 Will. 4, c. 66, s. 24, 
 repealed.) 
 
 By s. 50, " all indictable offences 
 •" mentioned in this act which shall 
 " be committed within the jurisdic- 
 " tion of the Admiralty of England 
 " or Ireland shall be deemed to be 
 " offences of the same nature and 
 " liable to the same punishments as 
 " if they had been committed upon 
 "the land in England or Ireland, 
 " and may be dealt with, inquired 
 " of, tried, and determined in any 
 " county or place in England or 
 " Ireland in which the offender 
 " shall be apprehended or be in 
 " custody, in the same manner in all 
 " respects asif they had been actually 
 " committed in that county or place ; 
 " and in any indictment for any 
 " such offence, or for being an ac- 
 " cessory to such an offence, the 
 
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UTTERESTG. 
 
 223 
 
 " venue in the margin shall he the 
 " same as if the offence had been 
 " committed in such county or 
 "place, and the offence shall be 
 " averred to have been committed 
 " on ' the high seas' : provided that 
 "nothing herein contained shall 
 " alter or affect any of the laws re- 
 " lating to the government of her 
 " Majesty's land or naval forces." 
 
 By 5 & 6 Vict. c. 38, " the offence 
 " of forgery cannot be tried at quar- 
 " ter sessions." 
 
 On an indictment for forgery at 
 common law, it is not necessary to 
 prove that the party charged was 
 in custody before the time of the 
 trial, in order to give jurisdiction 
 under 11 Geo. 4 & 1 Will. 4, c. 66, 
 s. 24. Beg. v. Smythies, T. & M. 
 190 ; 1 Den. C. C. 498 ; 19 L. J., 
 M. C. 31 ; 4 Cox, C. C. 94 ; 13 Jur. 
 1034. 
 
 A verdict, in such case, of guilty 
 of forging, but there is no evidence 
 of its having been done within the 
 jurisdiction of the court, amounts 
 to a conviction. Ih. 
 
 Where a prisoner was tried for 
 forgery in the county where he was 
 in custody, under 11 Geo. 4 & 1 
 Will. 4, c. 66, s. 24, the forgery 
 might be alleged to have been com- 
 mitted in that county, and there 
 need not be any averment that the 
 prisoner was in custody there. Rex 
 V. James, 7 C. & P. 553 — Patteson. 
 
 9. Election of Forgeries. 
 
 The bank of England having pre- 
 ferred several indictments for utter- 
 ing and having in possession, in re- 
 spect of the same note, and having 
 elected to proceed on the indictment 
 for having in possession : — Held, 
 that although facts sufficient to 
 support the capital charge were 
 made out in proof, an acquittal for 
 the minor offence ought not to be 
 directed, because the whole of the 
 minor offence was proved, and it 
 did not merge in the larger. Anon. , 
 K & E. C. C. 378. 
 
 The bank might elect to proceed 
 
 Digitized by Microsoft's. 
 
 on an indictment for a lesser of- 
 fence, although an indictment had 
 been found for a capital charge in 
 respect of forging the same note. 
 lb. 
 
 On a count for uttering several 
 forged receipts, the court will not 
 put the prosecutor to his election on 
 which receipt to proceed, if they be 
 all uttered at the same time. JRex 
 V. Thomas, 2 East, P. C. 934, 
 
 10. Uttering. 
 
 What M.] — Putting a letter into 
 the Manchester post-office, contain- 
 ing a forged instrument, is an utter- 
 ing in the county of Lancaster, and 
 the post-mark is evidence of such an 
 uttering. PerMn's case, 2 Lewin, 
 C. C. 150— Park. 
 
 Tittering in England a forged 
 note, payable in Ireland only, was 
 within the forgery acts prior to 11 
 Geo. 4 & 1 Will. 4, c. 66. Rex v. 
 Kirhwood, 1 M. C. C. 311. 
 
 The uttering a bill with a genuine 
 indorsement, under pretence of be- 
 ing the indorser, will not subject 
 the party to an indictment as for 
 uttering a forged instrument, as it 
 is only a misdemeanor. Rex v. 
 Hevey,^. & R. C. G. 407, n.; 2 
 East, P.O. 556,856; 1 Leach, C. 
 C. 229. 
 
 Forging a bill payable to the 
 prisoner's own oj-der, and uttering, 
 it without an indorsement as a se- 
 curity for a debt, is a complete 
 offence, if done with a fraudulent 
 intent, the bill having been issued 
 to obtain credit, though as a pledge 
 only. Rex v. Birhett, R. & R. G. 
 C. 86. 
 
 On an indictment for forging a 
 scrip receipt, it must appear that 
 the receipt was signed subsequently 
 to the passing of the statute on 
 which the indictment is founded; 
 but though signed before, yet, if it 
 was uttered after the passing of the 
 act, the prisoner may be convicted 
 on the count for uttering it, know- 
 ing it to be forged. Rex v. Beeves, 
 2 Leach, C. C. 808, 814. 
 
224 
 
 FORGERY. 
 
 Shewing a man an instrument, 
 the uttering of which would be 
 criminal, though with an intent of 
 raising a false idea in him of the 
 party's substance, is not an uttering. 
 Rex V. ShKkard, R. & R. C. C. 200. 
 
 Nor will the leaving it after- 
 wards, sealed up, with the person 
 to whom it was shewn under cover, 
 that he may take charge of it, as 
 being too valuable to be carried 
 about", be an uttering. lb. 
 
 The offence of disposing and put- 
 ting away forged bank-notes is com- 
 plete, although the person to whom 
 they are disposed was an agent for 
 the bank to detect utterers, and ap- 
 plied to the prisoner to purchase 
 forged notes, and had them deliver- 
 ed to him as forged notes, for the 
 purpose of disposing of them. Rex 
 V. Solden, R. & R. C. C. 154; 2 
 Leach, C. C. 1019; 2 Taunt. 334. 
 
 A bill was addressed to Messrs. 
 Williams & Co., bankers, Birchin 
 Lane, London, and there might, at 
 that time, have been a 3 on the 
 lower left-hand corner of the bill ; 
 the prisoner was asked at the time 
 whether the acceptors were Will- 
 iams, Birch & Co., and his answer 
 imported that they were. Wiliams, 
 Birch & Co. lived at No. 20, 
 Birchin Lane, and it was not their 
 acceptance. There were no other 
 known bankers in London using 
 the style of Williams & Co. : but 
 at No. 3, 5ii"chin Lane, the name of 
 " WilUams & Co." was on the door; 
 and some bills addressed to Messrs. 
 Williams & Co., bankers, Swansea, 
 had been accepted, payable at No. 
 3, and had been paid there. There 
 was no evidence who lived at No. 
 3, but another bill of the same tenor 
 as that in question, drawn by the 
 prisoner, had been accepted there : 
 — Held, that on these facts he was 
 improperly convicted of uttering a 
 forged acceptance, knowing it to 
 be forged. Rex v. Watts, R. & R. 
 C. C. 436 ; 3 B. & B. 197 ; 6 Moore, 
 442. 
 
 If a person knowingly deUvers a 
 
 forged bank-note to another, who 
 knowingly utters it accordingly, the 
 prisoner, who delivered such note to 
 be put off, might have been con- 
 victed of having disposed and put 
 away the same, on 15 Geo. 2, c. 13, 
 s. 11. Rex V. Ralmer, R. & R. C. 
 C. 72 ; 1 N. R. 96 ; 2 Leach, C. C. 
 978. 
 
 Uttering a forged bill of ex- 
 change, purporting to be payable 
 to the drawer's order, with intent 
 to defraud, is a comj)lete offence, 
 although there is no indorsement 
 upon it importing to be the draw- 
 er's. Rex V. Wicks, R. & R. C. 
 C. 149. 
 
 If a person presents a bill of ex- 
 change for payment, with a forged 
 indorsement upon it of a receipt by 
 the payee, and the clerk to whom 
 he presents it objects to a variance 
 between the spelling of the payee's 
 name in the bill and the indorse- 
 ment, upon which the person alters 
 the indorsement into a receipt by 
 himself for the payee : semble, that 
 the act of presenting the bill to the 
 clerk previously to his objection is 
 sufficient to constitute the offence 
 of uttering the forged indorsement. 
 Rex V. Arscott, 6 C. & P. 408. 
 
 If an engraving of a forged note 
 is given to a party as a pattern or 
 as a specimen of skill, the party 
 giving it not intending that the 
 particular note should be put in 
 circulation, it is not an uttering. 
 Rex V. Harris, 7 C. & P. 428 — 
 Littledale. 
 
 Where a prisoner, charged with 
 uttering a forged note to A., know- 
 ing it to be forged, gave forged 
 notes to a boy who was ignorant of 
 that fact, and directed him to pay 
 away the note mentioned in the in- 
 dictment at A.'s for the purchase 
 of goods, and the boy did so, and 
 brought back the goods and the 
 change to the prisoner : — Held, that 
 it was an uttering by the prisoner 
 to A. Rex V. OUes, Car. C. L. 191 • 
 1 M. C. C. 166. 
 
 If A. exhibits a, forged receipt to 
 
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EVIDENCE. 
 
 amO 
 
 B., a person with whom he is claim- 
 ing credit for it, this is an uttering, 
 although A. refuses to part with 
 the possession of the paper out of 
 his hand. Meg. v. Radford, 1 C. 
 & K. 707 ; 1 Den. C. C. 59. 
 
 On a trial for uttering a forged 
 note scienter, the admissibility of 
 evidence of other utterings is not 
 affected by Reg. v. Oddy, 2 Den. 
 C. C. 264. Reg. v. Green, 3 C. & 
 K. 209— Cresswell. 
 
 The prisoner placed a forged 
 receipt for poor-rates in the hands of 
 the prosecutor for inspection only, 
 in order, by representing himself as 
 a person who had paid his rates, 
 fraudulently to induce the prose- 
 cutor to advance money to a third 
 person : — Held, that this was an 
 uttering. Req. v. Ion, 2 Den. C. 
 C. 475 ; 16 Jur., 746 ; 6 Cox, C. C. 
 1. 
 
 Upon proceedings before justices 
 against a pawnbroker, under 39 & 
 40 Geo. 3, c. 99, s. 14, he deliver- 
 ing to them, through the hands of 
 his attorney, a false and fabricated 
 duplicate of goods that had been 
 pledged with him, is an uttering by 
 the pawnbroker. Reg. v. Fitchie, 
 Dears. & B. C. C. 175 ; 3 Jur., N. S. 
 419 ; 26 L. J., M. C. 90 ; 7 Cox, 
 C. C. 257. 
 
 Conditional.'] — A conditional ut- 
 tering of a forged instrument is as 
 much a crime as any other uttering. 
 Where a person gave a forged ac- 
 ceptance, knowing it to be so, to 
 the manager of a banking company 
 where he kept an account, saying, 
 that he hoped this bill would satis- 
 fy the bank as a security for the debt 
 he owed, and the manager replied 
 that that would depend on the result 
 of inquiries respecting the acceptance : 
 —Held, a sufScient uttering. Reg. 
 V, Cooke, 8 C. & P. 582— Patteson. 
 
 jury must select some one particu- 
 lar time after all three had become 
 connected, and must be satisfied, 
 in order to convict them, that at 
 such time they were all either pres- 
 ent together at one act of using, or 
 assisted in such one act, as by two 
 using, and one watching at the 
 door to prevent the others being 
 disturbed, or the like ; and that it 
 was not sufficient to shew that the 
 parties were general dealers in forg- 
 ed notes, and that at different times 
 they had singly used the plates, 
 and were individually in possession 
 of forged notes taken from them. 
 Rex V. Harris, 7 C. & P. 416. 
 
 y. was indicted for uttering forg- 
 ed post-office money orders. H. 
 and S. were joined in the indictment, 
 and convicted. They had gone to 
 the shop where V. uttered the or- 
 ders, remaining outside in a cab so 
 situated that they could not see or 
 be seen by the people in the shop. 
 They had previously accompanied 
 V. to another shop, where he failed to 
 get change for the orders, and they 
 assisted him in taking away the 
 goods obtained at the second shop : 
 — Held, that though they were not 
 in the cab for the purpose of taking 
 part in aiding or assisting in the act- 
 ual act of uttering, they were right- 
 ly convicted. Reg. v. Vanderstein, 
 16 Ir. C. L. R. 574 ; 10 Cox, C. C. 
 177 (Ir. C. C. R.). 
 
 Mvidence. . 
 
 of Instrument.] — If, 
 
 Joint Uttering.]— Wh^eie. three 
 were jointly indicted for feloniously 
 using plates, containing impressions ^ , . 
 
 11. 
 
 Production 
 on an indictment for forgery being 
 presented to the grand jury, it ap- 
 pears that the forged instrument can- 
 not be produced, either from its being 
 in the hands of the prisoner, or from 
 any other sufficient cause, the grand 
 j ury may receive secondary evidence 
 of its contents. Rex v. Hunter, 3 
 0. & P. 591— Park. 
 
 On an indictment for forgery be- 
 ing presented to the grand jury, a 
 witness declined to produce certain 
 deeds before them : — Held, that, if 
 
226 
 
 FORGERY. 
 
 dence of the witness's title to his 
 own estate, he was not compellable 
 to produce them, but that, if they 
 did not, the grand jury might com- 
 pel their production. Ih. 
 
 On an indictment for uttering a 
 forged deed, it appeared that the 
 deed alleged to have been forged 
 was produced in evidence by the 
 prisoner's attorney on the trial of 
 an ejectment, in which the prisoner 
 was lessor of the plaintiff; and 
 that, after the trial, it was returned 
 to the prisoner's attorney : — ^Held, 
 that, if the prisoner did not produce 
 the deed, he having had notice to 
 produce it, secondary evidence 
 might be given of its contents, with- 
 out calling his attorney to prove 
 what he had done with the deed. 
 If, as secondary evidence of the con- 
 tents of the deed, the draft is given 
 in evidence, and in the draft words 
 are abbreviated, which, in the set- 
 ting out of the deed in the indict- 
 ment, are put in words at length, 
 it will be for the jury to say wheth- 
 er they think that the words abbrevi- 
 ated in the draft were inserted at 
 length in the deed itself. Rex v. 
 Hunter,'^ C. & P. 128— Vaughan. 
 
 If a forged deed is in the posses- 
 sion of a prisoner, who is indicted 
 for forging it, the prosecutor is not 
 entitled to give secondary evidence 
 of its contents, unless he has, a reas- 
 onable time before the commence- 
 ment of the assizes, given the prison- 
 er notice to produce it ; and a no- 
 tice given to the prisoner during 
 the assizes is too late ; but if the 
 prisoner has said that he has de- 
 stroyed the deed, no notice to pro- 
 duce it will be necessary. Rex v. 
 Haworth, 4 C. &. P. 254— Parke. 
 
 Quaere, whether a forged docu- 
 ment intrusted by the prisoner to 
 an attorney, as an attorney, can be 
 produced on the trial for the forg- 
 ery ? Reg. V. Tylney, 1 Den. C. C. 
 319 ; 18 L. J., M. C. 36. 
 
 Stamping .^ — On an indictment 
 for forging a bill of exchange the 
 
 bill may be given in evidence, al- 
 though it is not stamped. Rex v. 
 Hawkeswood, 1 Leach, C C 257 ; 2 
 East, P. C. 955 ; 2 T. R. 606, n. ; .S". 
 P., Rex V. Morton, 2 East, P. C. 955 ; 
 1 Leach, C. C. 259, n. ; S. P., 17 & 
 18 Vict. c. 83, s. 27. 
 
 To implicate or connect.^ — In case 
 of forging and uttering a forged 
 bill, a letter written by the prisoner 
 to a third person, saying that such 
 person's name is on another bill, 
 and desiring him not to say that 
 that bill is a forgery, is receivable 
 in evidence to shew guilty knowl- 
 edge ; but the jury ought not to con- 
 sider it as evidence that the other 
 bill is forged, unless such bill is pro- 
 duced, and the forgery of it proved 
 in the usual way. Rex v. Forbes, 7 
 C. & P. 224. 
 
 A. was charged with a forgery, 
 and B. was examined on oath be- 
 fore the magistrate as a witness 
 against A ; after this B. was him- 
 self charged with a different forgery : 
 — Held, that the deposition of B. 
 was evidence against him on his 
 trial for the forgery, notwithstand- 
 ing it was taken on oath. Rex v. 
 Haworth, 4 C. & P. 254— Parke. 
 
 On an indictment for uttering a 
 forged bill of exchange, the judge 
 will hear evidence of all the facts 
 which form parts of one continued 
 transaction relating to the uttering 
 of the bill, and will not press the 
 prosecutor to elect what particular 
 fact he means to rely upon as the 
 uttering, till the case for the prose- 
 cution is closed. Rex v. Hart, 7 C. 
 & P. 652— Littledale. 
 
 On the trial of a indictment for 
 forgery of the acceptance of a bill 
 of exchange, evidence of what the 
 prisoner said respecting other bills 
 of exchange which are not in evi- 
 dence, is not admissible. Reg. v. 
 Cooke, 8 C. & P. 586— Patteson. 
 But see Reg. v. Brown, 2 F. & F. 
 559 — Crompton. 
 
 The examination of a person tak- 
 en on oath as a witness before Com- 
 
 Digitized by Microsoft® 
 
EVIDENCE. 
 
 227 
 
 missioners of Bankruptcy, is admis- 
 sible against him on a charge of 
 forgery, he having been cautioned 
 and allowed to elect what questions 
 he would answer. Reg. v. Wheater, 
 2 Lewin, C. C. 157 ; 2 M. C. C. 45. 
 
 On an indictment for forging a 
 bank-note, a letter purporting to 
 come from the prisoner's brother, 
 and left by the postman pursuant 
 to its direction, . at the prisoner's 
 lodgings, after he was apprehended 
 and during his confinement, but 
 never actually in his custody, can- 
 not be read in evidence against him 
 on his trial. Rex v. Huet, 2 Leach, 
 C. C. 820. 
 
 Where a prisoner utters an instru- 
 ment with a forged indorsement or 
 other writing, and a short time pre- 
 viously the instrument is shewn to 
 have been in his possession without 
 such indorsement, there is some 
 evidence of forgery, although there 
 is no proof of the indorsement be- 
 ing in the prisoner's handwriting, 
 or if it is even shewn that he is un- 
 able to write. Reg. v. James, 4 
 Cox, C. C. 90— Erie. 
 
 On an indictment for forgery, it 
 appeared that the prisoner, on the 
 discovery of the forgery, being sus- 
 pected, was asked to write his 
 name, for the purpose of compari- 
 son, and did so : — Held, that this 
 signature was not admissible on 
 the part of the prosecution for that 
 purpose. Reg. v. Aldridge, 3 F. & 
 F. 781— Wightman. 
 
 Uttering a forged order for the 
 payment of money under a false 
 representation is evidence of know- 
 ing it to be forged. Rex v. Skep- 
 pard, 1 Leach, C. C. 226 ; 2 East, 
 P. C. 967 ; R. & R. C. C. 169. 
 
 Of Guilty Knowledge.] — Upon an 
 indictment for disposing of and put- 
 ting away a forged bank-note know- 
 ing it to be forged, the prosecutor 
 may give evidence of other forged 
 notes having been uttered by the 
 prisoner, in order to prove his 
 knowledge of the forgery. Rex v. 
 Digitized by 
 
 ^Wylie, 1 N. R. 92; S. O. nom. 
 Rex v. Whiley, 2 Leach, C. C. 983 ; 
 S. P., Rex V. Tattersall, 1 N. R. 93, 
 n. 
 
 So proof that the prisoner had 
 in his possession other bills or notes 
 of the same kind is admissible. 
 Rex V. Bough, R. & R. C. C. 120. 
 
 So proof that he pointed out 
 where such others were hidden. 
 Rex V. Rowley, Bayl. Bills, 448. 
 
 If the possession of other forged , 
 instruments is offered in evidence 
 to prove a guilty knowledge, there 
 must be regular evidence that such 
 instruments were forged ; proof 
 that the prisoner returned the mon- 
 ey on such an instrument, and re- 
 ceived the instrument back, is not 
 sufficient without joroducing the in- 
 strument or duly accounting for its 
 non-production. Rex v. Millard, 
 R. & R. C. C. 245. 
 
 Upon an indictment for uttering 
 a forged note, evidence is admissi- 
 ble of the prisoner's having, at a 
 prior time, uttered another forged 
 note of the same manufacture ; and 
 also that other notes of the same fab- 
 rication had been found on the files 
 of the bank, with his handwriting on 
 the back of them, in order to shew 
 his knowledge of the note mention- 
 ed in the indictment being a forg- 
 ery. Rex V. BaU, R. & R. C. C. 
 132 ; 1 Camp. 324 ;, 2 Leach, C. C. 
 987, n. 
 
 In order to shew a guilty knowl- 
 edge, on an indictment for uttering 
 forged bank-notes, evidence of an- 
 other uttering, subsequently to the 
 one charged, is not admissible, un- 
 less the latter uttering was in some 
 way connected with the principal 
 case, or it can be shewn that the 
 notes were of the same manufac- 
 ture ; for only previous or contem- 
 poraneous acts can shew quo ani- 
 mo a thing is done. Rex v. Tavern- 
 er. Car. L. 195. 
 
 If a second uttering is made the 
 
 subject of a distinct indictment, it 
 
 cannot be given in evidence to shew 
 
 a guilty knowledge in a former ut- 
 
 IVIicrosoft® 
 
228 
 
 FORGERY. 
 
 t'ering. Eex v. Smith, 2 C. & Py 
 633 — Vaughan. 
 
 On an indictment for uttering 
 forged Polish notes, conversations 
 with the prisoners respecting the 
 forgery and circulation of forged 
 Austrian notes are admissible to 
 prove the scienter. JRex v. Harris, 
 7 C. & P. 429— Williams. 
 
 On an indictment for engraving 
 or uttering notes of a foreign prince, 
 , evidence of a recent engraving or 
 uttering notes of another foreign 
 prince is admissible, in proof of a 
 guilty knowledge. Hex v. Balls, 1 
 M. C. C. 470. 
 
 In a prosecution for forging and 
 uttering a receipt, knowing it to be 
 forged, it was proposed to give in 
 evidence other acts of forgery by 
 the prisoner, against the same pros- 
 ecutor, as evidence of guilty knowl- 
 edge, on the count for uttering. 
 It was objected that they could 
 only be given in evidence if they 
 were forgeries, and there was no 
 evidence of that without first ask- 
 ing the jury to find them so, which 
 was not the issue they had to try : 
 — Held, that the whole evidence 
 must be confined to the document 
 they were proceeding upon, with- 
 out at all trenching upon the rules 
 as to uttering in other cases. Reg. 
 V. Moore, 1 F. & F. 73— Byles and 
 Martin. 
 
 Upon an indictment for uttering 
 a forged bill, the previous uttering 
 of other bills forged in other names 
 may be given in evidence in proof 
 
 guilty knowledge. Keg. v. Salt, 
 3 V. & P. 834— Williams. 
 
 It is impracticable to lay down 
 any general rule as to the time 
 within which such previous utter- 
 ing must have taken place, in order 
 to be admissible. lb. 
 
 What is Possession.'^ — By 24 & 
 25 Vict. c. 98, s. 45, " where the 
 " having any matter in the custody 
 " or possession of any person is in 
 " this act expressed to be an offence, 
 " if any person shall have any 
 " such matter in his personal cus- 
 
 " tody or possession, or shall know- 
 " ingly and wilfully have any such 
 " matter in the actual custody or 
 " possession of any other person, or 
 " shall knowingly and wilfully 
 " have any such matter in any 
 " dwelling-house or other building, 
 " lodging, apartment, field or other 
 " place, open or inclosed, whether 
 " belonging to or occupied by him- 
 " self or not, and whether such 
 " matter shall be so had for his 
 •' own use or for the use or benefit 
 " of another, every such person 
 " shall be deemed and taken to 
 " have such matter in his custody 
 " or possession within the meaning 
 " of this act." 
 
 Where, on an indictment on 45 
 Geo. 3, c. 89, s. 6, for knowingly 
 and wittingly having in his posses- 
 sion forged Bank of England notes, 
 it appeared that the prisoner, being 
 suspected of having such in his pos- 
 session, was requested by A. to sell 
 him some, which he said he would 
 do, and A. accordingly paid him 
 for them ; the prisoner then went 
 out as he said to fetch the notes, 
 but on his return said, " he had put 
 them in an old shoe in a particular 
 place," which he described ; A. 
 then went to look for the notes, and 
 the prisoner followed him, but 
 whilst A. was looking for them, 
 the prisoner threw a stone into the 
 place, and said there they are ; A., 
 on looking there, found the notes 
 in an old shoe : — Held, that the 
 prisoner had a sufiicient possession 
 within the meaning of the statute. 
 EexY.Eowley, R. & R. C. C. 110. 
 
 A. took a bank-note in the course 
 of his business, which he paid to B. ; 
 the note was afterwards stopped at 
 the bank as a forged note, and was 
 brought by an inspector to A., who 
 immediately paid to B. the amount 
 of the note, and refused to give it 
 up to the inspector, insisting on his 
 right to retain it, in order to recov- 
 er the amount from the person 
 from whom he had received it. 
 The inspector, in the absence of 
 
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WITNESSES. 
 
 229 
 
 all circumstances of suspicion, is 
 not justified in charging A. before 
 a magistrate with feloniously hav- 
 ing the note in his possession, know- 
 ing it to be forged, for the purpose 
 of compelling him to give up the 
 note. By possession under the 45 
 Geo. 3, c. 89, was meant the original 
 possession of a note acquired in an 
 illegal mode, and not a subsequent 
 possession, like the above, where 
 the original possession was legal. 
 Brooks V. Warwich, 2 Stark. 389 — 
 Ellenborough. 
 
 12. Witnesses. 
 
 By 9 Geo. 4, c. 32, s. 11, "on 
 " any prosecution by indictment or 
 " information, either at common 
 " law or by virtue of any statute, 
 " against any person for forging 
 " any deed, writing, instrument or 
 " other matter whatsoever, or for 
 " uttering or disposing of any deed, 
 " writing, instrument, or other mat- 
 " ter whatsoever, knowing the same 
 " to be forged, or for being ao- 
 " cessory before or after the fact 
 " to any such offence, if the same 
 " be a felony, or for aiding, abet- 
 " ting or counselling the commis- 
 " sion of any such offence, if the 
 " same be a misdemeanor, no person 
 " shall be deemed to be an incompe- 
 " tent witness in support of any such 
 " prosecution, by reason of any inter- 
 " est which such person may have or 
 " be supposed to have in respect of 
 " any such deed, writing, instru- 
 " ment or other matter." 
 
 To prove the forging of a bank- 
 note, it is not necessary that the 
 signing clerk at the bank should be 
 produced, if witnesses acquainted 
 with his handwriting state that the 
 signature to the note is not in his 
 handwriting. Anon., R. & R. C. C. 
 378. ^ 
 
 On an indictment for uttering a 
 forged will, which, together with 
 writings in support of it, was sug- 
 gested to have been written over 
 pencil marks which had been rub- 
 bed out, the evidence of an engrav- 
 
 er, who has examined the paper 
 with a mirror, and traced the pen- 
 cil marks, is admissible on the part 
 of the prosecution. Reg. v. Wil- 
 liams, 8 C. & P. 434— Parke. 
 
 On an indictment for uttering a 
 forged cheque in the name of J. W., 
 on Messrs. C. G. & Co., who were 
 array agents and bankers, evidence 
 by a clerk in the former department 
 that he did not know any customer 
 named J. W., and that he had been 
 told by the other clerks that there 
 was not any such customer in the 
 banking department, is sufficient on 
 the part of the prosecution to call 
 upon the prisoner to shew that there 
 was in fact such a person as J. W. 
 having an account with Messrs. C. 
 G. & Co., and in the absence of 
 such proof, is sufficient by itself for 
 the jury. Rex v. Brannan, 6 C. & 
 P. 326 — Park, Patteson and Gur- 
 ney. 
 
 13. Power to seize Forged Instru- 
 ments and Implements. 
 (24: Sf 25 Vict. c. 98, s. 46.J 
 
 14. Punishment. 
 ('24 Sf 25 Vict. c. 98, ss. 47, 48.J 
 
 15. Costs of Prosecviion. 
 By 24 & 25 Vict. c. 98, s. 54, 
 " the court before which any indict- 
 " able misdemeanor against this act 
 " shall be prosecuted or tried may 
 " allow the cost of the prosecution 
 " in the same manner as in cases of 
 " felony; and every order for the 
 " payment of such costs shall be 
 " made out, and the sum of money 
 " mentioned therein paid and repaid, 
 " upon the same terms and in the 
 " same manner in all respects as in 
 " casf3s of felony." 
 
 XVm. Government Stores. 
 
 See the Naval and Victualling 
 Stores Act, 1862, 25 & 26 Vict. c. 
 64, which repeals sections 1, 2, 4, & 
 
 Digitized by Microsoft® 
 
230 
 
 GOVERNMENT STORES. 
 
 5 of 9 & 10 Will. 3, 0. 41 ; 9 Geo. 
 1, c. 8, ss. 3, 4 & 5 ; 17 Geo. 2, c. 
 40, s. 10 ; 39 & 40 Geo. 3, c. 89 ; 
 54 Geo. 3, o. 60 ; and bb Geo. 3, c. 
 127, ore which the following cases were 
 decided. 
 
 One became possessed, on the 
 death of her husband, of can- 
 vass stores, which had been pur- 
 chased by him in his lifetime, at a 
 public sale, and had been many 
 years made up into household furni- 
 ture, but no evidence was given of 
 any certificate of such sale being 
 lawful, &h i-equired by 9 & 10 Will. 
 3, c. 41, or of any excuse allowed 
 by the act ; yet the possession being, 
 by act of law, without fraud : — Held, 
 not within the penalty of the stat- 
 ute. Aiion., 2 East, P. C. 765. 
 
 An indictment under 39 & 40 
 Geo. 3, o. 89, alleged that A., on 
 the 19th day of May, 1842, not 
 being a contractor, had in his pos- 
 session naval stores: — Held, that 
 the date given applied to the alle- 
 gation that A. was not a contractor, 
 as well as to the allegation that he 
 had possession of the stores, and 
 therefore that it was sufficiently 
 averred that he was not a contract- 
 or at the time of such possession. 
 Silversides v. Heg. (in error), 2 G. c% 
 
 D. 617; 3 Q. B. 406; 6 Jur. 805. 
 Bags marked M. were forVarded 
 
 from Portsmouth to London by rail- 
 way, and were deposited in the goods 
 department of the railway company 
 in London. The prisoner, a marine 
 store dealer in Portsmouth,' wrote 
 and telegraphed to G., an officer of 
 the company, to deliver the bags to 
 
 E. The bags, on b^eing opened, 
 were found to contain naval stores 
 marked with the broad arrow. The 
 bags had been delivered at the 
 Portsmouth station by two women, 
 but there was no evidence to con- 
 nect them with the prisoner. Bags 
 marked E. had previously been for- 
 warded by the company to their 
 goods department in London, and 
 deUvered to E. in accordance with 
 directions received from the prison- 
 
 er. He was indicted under 9 & 10 
 Will. 3, c. 41, s. 2, for having naval 
 stores in his custody, possession and 
 keeping, and convicted : — Held, that 
 the evidence was sufficient to sup- 
 port the conviction. lieg. v. Sun- 
 ley, Bell, C. C. 145 ; 5 Jur., N. S. 
 551 ; 7 W. R. 418 ; 33 L. T. 154 ; 
 8 Cox, C. C. 179. 
 
 A. was indicted, under 9 & 10 
 Will. 3, o. 41, s. 2, for having been 
 found in possession of naval stores 
 marked with the broad arrow. It 
 was proved that lie delivered to the 
 captain of a coasting vessel a cask 
 containing copper bolts, a portion 
 of which was marked with the 
 broad arrow. The cask was seized 
 by the police before the vessel sailed. 
 In answer to questions put to the 
 jury, they found that A. was in the 
 possession of the copper bolts ; that 
 they had not sufficient evidence be- 
 fore them to shew that he knew, 
 that the copper, or any part of it, 
 was marked with the broad arrow ; 
 and that he had reasonable means 
 of knowing that it was so marked : 
 — Held, that upon this finding of 
 the jury he was entitled to an ac- 
 quittal, as it must be taken that he 
 did not know that the copper was 
 marked. Meg. v. Sleep, L. & C. 
 44 ; 8 Cox, C. C. 472 ; 7 Jur., N. 
 S. 979 ; 30 L. J., M. C. 170 ; 9 W. 
 R. 709 ; 4 L. T., N. S. 525. 
 
 Held, that the conviction was al- 
 so wrong, upon the ground that the 
 copper was not found in his posses- 
 sion, lb. 
 
 An indictment framed under 9 & 
 10 Will. 3, c. 41, and 55 Geo. 3, c. 
 127, and charging that the prisoners 
 received, and had in their posses- 
 sion, certain government stores, will 
 not be supported by evidence which 
 merely shews that they were deal- 
 ing with jthe cases in which the 
 stores were placed — in the absence 
 of evidence to shew that they knew 
 the government mark was on the 
 stores. Seg. v. O'Brien, 15 L. T., 
 N. S. 419— Smith. 
 
 The bare possession of marked 
 
 Digitized by Microsoft® 
 
GUNPOWDER — ILLEGAL MAKING, ETC. 
 
 231 
 
 naval stores does not render a per- 
 son liable to be convicted under 9 
 & 10 Will. 3, c. 41, if he was igno- 
 rant that the stores are so marked. 
 Reg. V. Willmett, 3 Cox, C. C. 281 
 — Coltman. 
 
 A defendant charged with the 
 possession of two lots of marked 
 naval stores produced at his trial 
 two certificates in respect \ of the 
 different lots, signed respectively by 
 the commodore superintendent of 
 the Woolwich Dockyard, and the 
 secretary of the board of ordnance, 
 the former having been granted to 
 the person of whom the defendant 
 purchased, the latter to the defend- 
 ant himself: — Held, that these cer- 
 tificates, though not strictly in ac- 
 cordance with 9 & 10 Will. 3, c. 
 41, ss. 2, 4, were nevertheless an 
 answer to the charge. lb. 
 
 On an indictment charging the 
 defendant with being in possession of 
 naval stores marked with the broad 
 arrow, it is necessary to shew not 
 only that he was possessed of the 
 articles, but also that he knew they 
 were marked with the broad arrow. 
 Seg. V. Cohen, 8 Cox, C. C. 41— 
 Watson and Hill. 
 
 The fraudulently charging, by a 
 purser, of stores which were never 
 issued, and the making of false en- 
 tries in the ship's books to cover 
 such charges, is an offence punish- 
 able " according to the laws and 
 customs in such cases used at sea," 
 as amounting under 22 Geo. 2, c. 
 33, s. 36, to "a crime not capital, 
 committed by a person in the fleet 
 not before mentioned in this act, 
 and for which no punishment is 
 thereby directed to be inflicted." 
 Mann v. Owen, 4 M. & R. 449 ; 9 B. 
 &C.595. 
 
 XIX. Gttnpowdbe. 
 
 1 . Illegal Making, Use and Employ- 
 
 ment, 231. 
 
 2. Intent to murder by — See Mur- 
 
 der, AND Offenses against 
 THE Person. 
 \ 3. Inflicting Injuries by — See Mde- 
 
 DER. 
 
 Digitized by Microsoft® 
 
 1. Illegal making, iise and employ- 
 
 vyipvif 
 
 By 24 & 25 Vict. o. 97, s. 54, 
 " whosoever shall make or raanu- 
 " facture, or knowingly have in his 
 " possession, any gunpowder, or 
 " other explosive substance, or any 
 " dangerous or noxious thing, or any 
 " machine, engine, instrument or 
 " thing, with intent thereby or by 
 " means thereof to commit, or for 
 " the purpose of enabling any other 
 " person to commit, any of the fel- 
 " onies in this act mentioned, shall 
 " be guilty of a misdemeanor, and, 
 " being convicted thereof, shall be 
 "liable, at the discretion of the 
 " court, to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary oonfine- 
 " ment, and, if a male under the age 
 " of sixteen years, with or without 
 " whipping." {Former provision, 9 
 & 10 Vict. c. 25, s. 8.) 
 
 By s. 55, " any justice of the 
 " peace of any county or place in 
 " which any machine, engine, im- 
 " plement or thing, or any gunpow- 
 " der or other explosive, dangerous 
 " or noxfous substance, is suspected 
 "to be made, kept or carried for 
 " the purpose of being used iu com- 
 " mitting any of the felonies in this 
 " act mentioned, upon reasonable 
 " cause assigned upon oath by any 
 " person, may issue a warrant under 
 " his hand and seal for searching in 
 " the daytime any house, mill, mag- 
 " azine, storehouse, warehouse, shop, 
 " cellar, yard, wharf, or other place, 
 ' ' or any carriage, waggon, cart, ship, 
 " boat or vessel, in which the same 
 " is suspected to be made, kept or 
 " carried for such purpose as herein- 
 " before mentioned; and every per- 
 " son acting in the execution of any 
 " such warrant shall have, for seiz- 
 " ing, removing to proper places, 
 " and detaining every such machine, 
 " engine, implement and thing, and 
 " all such gunpowder, explosive, 
 " dangerous or noxious substances 
 " found upon such search, which 
 
232 
 
 LARCENY AND RECEIVERS. 
 
 " he shall have good cause to sus- 
 " pect to be intended to be used in 
 " committing any such offence, and 
 " the barrels, packages, cases and' 
 " other receptacles in which the 
 " same shall be, the same powers 
 " and protections which are given 
 " to persons searching for unlawful 
 " quantities of gwipowder under 
 " the warrant of a justice by 23 & 
 " 24 Vict. c. 139." 
 
 "As to keeping combustible 
 " matters on board vessels in the 
 " Thames, see 2 & 3 Vict. c-. 47, s. 
 "37." 
 
 It would seem that if persons put 
 on board a ship an unlcnown article 
 of a combustible and a dangerous 
 nature, without giving due notice 
 of its contents, so as to enable the 
 master to use proper precautions in 
 the stowing of it, they are guilty of 
 a misdemeanor. Williams v. East 
 India Company, 3 East, 192, 201. 
 
 XX. Laecbnt and Receitees. 
 
 1. What amounts to a Talcing, 232. 
 
 (&) General Principles, 232. 
 fb) On Sale or Purchase of 
 Goods, 238. 
 
 (c) By a Trick or a Fraud, 240. 
 
 (d) On Breach of Contract to 
 
 sell, 243. 
 
 (e) By Hirers of Property, m. 
 ("f) From Bailees at Common 
 
 Law, 244. [245. 
 
 (s) ^H Bailees at Common Law, 
 
 (h) By Fawning Property, 2i6. 
 
 (i) Means of facilitating or de- 
 tecting Larceny, 247. 
 
 Q) In Case of Lost Property, 
 247. 
 
 fkj Recency of Possession of 
 Stolen Property, 250. 
 
 fl^ Servants taking Master's 
 Corn for feeding Horses, 
 251. 
 
 (m) By Husband and Wife, 251. 
 
 (n) By Wife's Paramour, 252. 
 
 (o) By Clerks or Servants, 253. 
 
 (p) ]3y Fraudulent Bailees, 258. 
 
 (q) By Parties in concert, 260. 
 
 2. By Persons in the Queen's Service, 
 
 or by the Police, 260. 
 
 3. By Post Office Servants and Others 
 
 4. In a Daelling-house, 26i. [261. 
 
 5. From the Person, 266. 
 
 6. By Tenants or Lodgers, 267. 
 
 7. In Manufactories, 267. 
 
 8. From Mines, 268. 
 
 9. In Ships in Ports or on Navigable 
 
 Rivers and Wharves, 269. 
 
 10. Abroad or on the High Seas, 269. 
 
 1 1 . Stealing or destroying Written In- 
 
 struments, 270. 
 
 12. Stealing or destroying Trees, Shrubs, 
 
 Vegetables and Fences, 271. 
 
 13. Attempts to commit Larceny, 274. 
 
 14. Subject-matter of Larceny, 274. 
 
 15. Lettersand Government Documents, 
 
 16. Fixtures. 278. [277. 
 
 17. Cuttle and other Animals, 279. 
 
 (a) Statute, 279. 
 
 (b) Horse Stealing, 279. 
 
 (c) Cattle, 281 . 
 
 (d) Sheep Stealing, 281. 
 
 (e) Deer, 282. 
 
 ({) Doves or Pigeons, 284. 
 (g) Fish, 284. 
 
 (h) Dogs, 286. [287. 
 
 (i) Birds and other Animals, 
 Q) Carcases or Skins, 288. 
 
 18. The Ownership, 289. 
 
 1 9. Receivers of Stolen Property, 294. 
 
 (a.) Statutory Provisions, 294. 
 
 (b) Who are Receivers, 295. 
 
 (c) Joint Receivers, 296. 
 
 (A) Husband and Wife, 297. 
 
 20. Indictment for Stealing and Re- 
 ceiving, 298. 
 
 (a) Stealing, 298. 
 
 (b) Stealing and Receiving, 301 . 
 
 21. Jurisdiction to try, 303. 
 
 22. Evidence, 304. 
 
 23. Punishment, 307. 
 
 24. Restitution and Recovery of Stolen 
 Property, 307. 
 
 1. What amounts to a Taking. ' 
 
 (a) General Principles. 
 
 Statute. y-By 24 & 25 Vict. c. 
 69, s. 2, " every larceny, whatever 
 " be the value of the property stol- 
 " en, shall be deemed to be of the 
 " same nature, and shall be subject ' 
 " to the same incidents in all respects 
 " as grand larceny was before the 
 " 21st of June, 1827 ; and every 
 " court whose power as to the trial 
 " of larceny was before that time 
 " limited to petty larceny, shall 
 " have power to try every case of 
 " larceny, the punishment of which 
 " cannot exceed the punishment pre- 
 " scribed for simple larceny, and 
 " also to try all accessories to such 
 " larceny." 
 
 The original distinction of grand 
 and petty larceny made it necessary, 
 
 Digitized by Microsoft® 
 
GENERAL PRINCIPLES. 
 
 233 
 
 in indictments for larceny, to allege 
 the value of the chattel stolen, in 
 order to allot the punishment. .- Reg. 
 V. Gaw.ble, 16 M. & W. 384. 
 
 What amounts to a taking.^ — 
 To constitute larceny, there must 
 he a taking of the property against 
 the will of the owner. But the 
 cashier of a hank has authority, 
 arising from the nature of his em- 
 ployment, to pay the money of the 
 iDank to persons presenting genuine 
 orders, and to judge of their genu- 
 ineness. Meg. V. Prince, 38 L. J., 
 M. C. 8; 4L. R., C. C. 150; 19 L. 
 T., N. S. 364; 17 W. R. 179; 11 
 Cox, C. C. 193. 
 
 Therefore, a cashier who, deceiv- 
 ed by a forged order, purporting to 
 • be drawn by a customer, pays mo- 
 ney to the payee, who present's it 
 knowing it to be forged, thereby 
 parts with the property in the mo- 
 ney of the -bank to the payee so as 
 to bind his employer; and the 
 payee is therefore not guilty of 
 larceny, but of obtaining money by 
 false pretences. Tb. 
 
 The prisoner vy'ith another man 
 went into the shop of the prosecu- 
 trix and asked for a pennyworth of 
 sweetmeats, for which he put down 
 a florin. The prosecutrix put it into 
 a money-drawer, and put down six- 
 pence in silver and five pence in 
 copper in change, which the pris- 
 oner took up. The other man said, 
 "you need not have changed," and 
 threw down a penny, which the 
 prisoner took up ; and the latter 
 then put down a sixpence in silver 
 and sixpence in copper on the counter, 
 saying, " here, mistress, give me 
 a shilling for this." The prosecu- 
 trix took a shilling out of the mo- 
 ney-drawer and put it on the coun- 
 ter, when the prisoner said to her, 
 " you may as well give me the two- 
 shilling-piece and take it all." The 
 prosecutrix toolt from the money- 
 drawer the florin she had received 
 from the prisoner, and put that on 
 the counter, expecting she was to 
 
 Fish. Dig.--18. Digitized by Microsoft® 
 
 receive two shillings of the pris- 
 oner's money in exchange for it. 
 The prisoner took up the florin ; 
 and the prosecutrix took up the silver 
 sixpence and the sixpence in copper 
 put down by the prisoner, and also 
 the shilling put down by herself, 
 and was putting them into the 
 money-drawer, when she saw she 
 had only got one shilling's worth 
 of the prisoner's money ; but at 
 that moment the jmsoner's com- 
 panion drew away her attention, 
 and, before she could speak, the 
 prisoner pushed his companion by 
 the shoulder, and both went out of 
 the shop :— Held, that the property 
 in the florin had not passed to the 
 prisoner, and that he was rightly 
 convicted of larceny. Reg. v. Mo- 
 Kale, 1 L. R., C. C. 125 ; 16 W. R. 
 800; 18 L. T., N. S. 335; 11 Cox, 
 C. C. 32. 
 
 A carman having orders to de- 
 liver goods to a certain person, in 
 mistake delivered them to another 
 person, who appropriated them to 
 his own use: — Held, that he did 
 not part with the property in the 
 goods by delivering them to a 
 wrong party ; and that the latter, 
 appropriating them to his own use, 
 was guilty of larceny. Reg. v. 
 LitUe, 10 Cox, C. C. 559— Russell 
 Gurney. 
 
 The prisoner was the bailor, and 
 the prosecutor the bailee of a horse. 
 The jirisoner had intrusted the horse 
 to the prosecutor as security for a 
 bill drawn by the former and ac- 
 cepted by the latter, to accommo- 
 date him. The prisoner took the 
 horse out of the prosecutor's posses- 
 sion. The bill had been paid by 
 the prosecutor, who had never been 
 .repaid by the prisoner, but was not 
 produced at the trial : — Held, that 
 in the absence of the bill there was 
 no evidence to shew that the pris- 
 oner had ever parted with his pro- 
 perty in the horse, so as to consti- 
 tute his taking of it a larceny. Reg. 
 V. Wadsworth, 10 Cox, C. C. 557 
 — Russell Gurney. 
 
234 
 
 LARCEKY AND RECEIVERS. 
 
 A person stole gas for the use of 
 a manufactory by means of a pipe, 
 which drew off the gas from the 
 main without allowing it to pass 
 through the meter. 'Die gas from 
 this pipe was burnt every day, and 
 turned off at night. The pipe was 
 never closed at its junction with 
 the main, and consequently always 
 remained full of gas : — Held, that 
 as the pipe always remained full, 
 there was, in fact, a continuous 
 taking of the gas, and not a series 
 of separate takings. Reg. v. Firth, 
 1 L. R., C. C. 172 ; 38 L. J., M. C. 
 54 ; 17 W. R. 327 ; 19 L. T., IST. S. 
 746 ; 11 Cox, C. C. 234. 
 
 Held, also, that, even if the pipe 
 had not been thus kept full, the 
 taking would have been continuous, 
 as it was substantially all one trans- 
 action. Tb. 
 
 The defendant was foreman of a 
 currier establishment; he obtained 
 from the cashier, by fraudulent mis- 
 representation, a certain sum of 
 money to be used in paying off the 
 workmen. On the pay-roll made 
 out by the defendant, the sum of \l. 
 10s. 4c?. was set down as due one of 
 the workmen ; whereas, only 11. 8«. 
 was due : the 2s. id. was fraudulent- 
 ly appropriated by him, he intend- 
 ing so to appropriate it at the time 
 he received it : — Held, that he was 
 guilty of larceny. Reg. v. Oooke, 
 12 C. C. 10. 
 
 Necessary Possession.^ — To con- 
 stitute larceny it is necessary that 
 the party should have had an inten- 
 tion to deprive the owner of his 
 property permanentlv. Reg. v. Hol- 
 loway, 2 0. & K. 942; 1 Den. C. C. 
 370 ; T. & M. 48 ; 3 NewSess. Cas. 
 410; 13 Jur. 86; 18 L. J., M. C. 
 60 ; 3 Cox, C. C. 241. 
 
 The correct definition of larceny 
 is the wrongful or fraudulent taking 
 and carrying away by any person 
 of the mere personal goods of an- 
 other, with a felonious intent to con- 
 vert them to his (the taker's) own 
 use, and make them his own prop- 
 
 erty. The fraudulent taking being 
 explained to be a talcing without 
 any colour of right, and the felon- 
 ious intent, an intent to deprive the 
 owner permanently of his property. 
 
 A watchmaker, to whom a watch 
 was given by the owner for the pur- 
 pose of having it regulated, disposed 
 of the watch, and applied the pro- 
 ceeds to his own purposes : — Held, 
 that this was no larceny, as the 
 watchmaker had in the first instance 
 obtained the possession of the watch 
 rightfully, and as, unless there was 
 a taking in the first instance animo 
 furandi, no subsequent dishonest 
 dealing with the chattel could 
 amount to larceny. Reg. v. ThristU, 
 3 New Sess. Cas. 702 ; 2 C. & K. 
 842; T. & M. 204; 1 Den. C. C. 
 502 ; 13 Jur. 1035 ; 19 L. J., M. C. 
 66 ; S. P. Rex V. Levy, 4 C. &. P. 
 241. 
 
 A., servant of B., a tallow-chand- 
 ler, clandestinely removed a quan- 
 tity of fat, the property of B., from 
 an upper room in B.'s warehouse to 
 a lower room in the same place, and 
 placed it in a pair of scales, and af- 
 terwards represented to B. that a 
 butcher named D. had sent the fat 
 to be purchased and paid for by B. : 
 — Held, that A. was rightly convict- 
 ed of larceny. Reg. v. Hall, 2 C. 
 & K. 947 ; T. & M. 47 ; 1 Den. C. 
 C. 381 ; 3 New Sess. Cas. 407 ; 13 
 Jur. 87 ; 18 L. J., M. C. 62 ; 3 Cox, 
 C. 0. 245. 
 
 In order to constitute larceny, 
 the taking must be with intention 
 to vest the property in the thief; 
 and therefore, where servants em- 
 ployed by a glove-maker in finish- 
 ing gloves, removed a quantity of 
 finished gloves from one part of the 
 master's premises to another, with 
 intent fraudulently to obtain pay- 
 ment for them as for so many gloves 
 finished by them : — Held, that they 
 were not guilty of larceny. Reg: 
 V. Poole, 7 Cox, C. C. 373 ; Dears. 
 &B. C.C.345; 27L.J.,M.C.53; 
 3 Jur., N. S. 1268. 
 
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GENERAL PRINCIPLES. 
 
 235 
 
 A. owed 41. lis. \^d. to tlie pro- 
 secutor ; and the latter having de- 
 manded payment, the prisoner said 
 he would settle :with him on behalf 
 of A. He took out of his pocket a 
 piece of Wank paper, stamped with 
 a sixpenny stamp, and put it upon 
 the table, and then took out some 
 silver in his hand. The prosecutor 
 wrote a receipt for the sum men- 
 tioned on the stamped paper, and 
 the prisoner took it up and went 
 out of the room. On being asked 
 for the money, he said, " It is all 
 right," but never paid it :— Held, 
 that this was not a case of larceny,, 
 the prosecutor never having had 
 such a possession of the stamped 
 paper as would enable him to main- 
 tain trespass. lieg. v. Smith, 2 Den. 
 C. C. 449; 5 Cox, C. C. 533; 16 
 Jur. 41,4 ; 21 L. J., M. C. 1 1 1 ; S. 
 P. Reg. V. Frampton, 2 C. & K. 47. 
 
 J. and W., acting in concert, and 
 intending to defraud S., entered his 
 shop, and by means of an artifice 
 induced him to draw a cheque on 
 his bankers for 42^., payable in the 
 name of J., and then to accompany 
 J. to the bank to see it paid, on the 
 understanding that they were to. 
 return to finish the transaction by 
 the payinent to S. of forty-two sover- 
 eigns, and that W. was to remain 
 at the shop till J. and S. went and 
 returned from the bank. At the 
 bank, by the desire of S., the bank- 
 er handed four ten pounds notes and 
 two sovereigns to J. in the presence 
 of S. S. and J. left the bank toge- 
 ther, and while on their way back 
 to S.'s shop, J. went into an inn 
 yard, and, promising to return 
 immediately, absconded with the 
 four ten pound notes and the two 
 sovereigns, which he and W. (who 
 in the meantime had gone off from 
 the shop with the forty-two_ sover- 
 eigns) appropriated to their own 
 use :— Held, that the misappropria- 
 tion of the notes and two sovereigns 
 was larceny, S. never having parted 
 with the property and possession in 
 them, and J. having no more than 
 
 the bare custody of the money 
 which he had carried off. lieq. v. 
 Johnson, 2 Den. C. C. 310; T. & 
 M. 612; 15 Jur. 1113; 21L. J.,M. 
 C. 32 J 5 Cox, C. C. 372. 
 
 M. had the charge of the prose- 
 cutor's warehouse, in which bags 
 were kept ; S. for some years had 
 been in the habit of supplying 
 the prosecutor with bags, which 
 were usually placed outside the 
 warehouse, and shortly after so 
 leaving them either S. or his wife 
 called and received payment for 
 them. M. went into his master's 
 warehouse, and clandestinely re- 
 moved twenty-four bags which had 
 been marked by his master, and 
 placed them outside the warehouse, 
 in the place where S. used to deposit 
 the bags before payment for them. 
 Soon afterwards the wife of S. came 
 and claimed payment for these bags. 
 The prosecutor then sent for S., 
 who, upon being asked respecting 
 the twenty-four bags, said they had 
 been placed there an hour previous- 
 ly by him, and demanded payment 
 for them. The jury found that the 
 bags had been so removed in pur- , 
 suance of a previous arrangement 
 between the prisoners : — Held, that 
 M. was rightly convicted of larceny, 
 and that S. was an accessory before 
 the fact to the larceny. JReg. v. 
 Manning, Dears. C. C. 21 ; 17 Jur 
 28 ; 22 L. J., M. C. 21 ; 6 Cox, C. 
 C. 86. 
 
 The prisoner assigned his goods 
 to trustees for the benefit of his 
 creditors ; but before the trustees 
 had taken possession, and while the 
 prisoner remained in possession of 
 them, he removed the goods, intend- 
 ing to deprive his creditors of them. 
 The jury found that the goods were 
 not in his custody as agent of the 
 trustees : — Held, that he was not 
 guilty of larceny. Beg. v. Pratt, 
 Dears. C. C. 360 ; 2 C. L. R. 774 ; 
 18 Jur. 539; 6 Cox, C. C. 373. 
 
 Animus Fwandi.l — To constitute 
 larceny, the felonious intention must 
 
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236 
 
 LARCENY AND RECEIVERS. 
 
 exist in the mind at the tinie the 
 property is obtained; for if it is ob- 
 tained by fair contract, and after- 
 wards fraudulently converted, it is 
 no felony. Eex v. Gharlewood, 1 
 Leach, C. C. 409 ; 2 East, P. C. 689. 
 
 If, however, a fraudulent convers- 
 ion takes place after the privity of 
 contract is determined, it is felony. 
 lb. 
 
 To make a taking felonious it is 
 not necessary that it should be done 
 lucri causa ; taking with an intent 
 to destroy will be sufficient to con- 
 stitute the offence of larceny, if done 
 to serve the prisoner, or another 
 person, though not in a pecuniary 
 way. Mex v. Gabhage, R. & R. C. 
 C. 292. 
 
 If a bureau is delivered to a car- 
 penter to repair, and he discovers 
 money in a secret drawer of it, 
 which he unnecessarily as to its re- 
 pairs breaks open, and converts the 
 money to his own use, it is a feloni- 
 ous taking of the property, unless it 
 appears that he did it with intention 
 to restore it to its right owner. 
 Gartwright v. Green, 2 Leach, C. C. 
 952 ; 8 Ves. 405. 
 
 A person purchased, at a public 
 auction, a bureau in which he after- 
 wards discovered, in a secret draw- 
 er, a purse containing money, which 
 he appropriated to his own use. 
 At the time of the sale no person 
 knew that -the bureau contained any- 
 thing whatever : — Held, that if the 
 buyer had express notice that the 
 bureau alone, and not its contents, 
 if any, was sold to him ; or if he 
 had no reason to believe that any- 
 thing more than the bureau itself 
 was sold, the abstraction of the mo- 
 ney was a felonious taking, and he 
 was guilty of larceny in appropriat- 
 ing it to his own use. But that if 
 he had reasonable ground for believ- 
 ing that he bought the bureau with 
 its contents, if any, he had a colour- 
 able property, and it was no larceny. 
 Merry v. Green, 7 M. & W. 623. 
 
 A servant, intrusted with the care 
 of his master's property, and who 
 
 subsequently appropriates it to his 
 own use, is guilty of larceny at the 
 time he so disposes of it, and not at 
 any previous time he may have 
 intended to steal it,'the principle of 
 animus furandi not applying to the 
 relation of master and servant. JReg. 
 V. Roberts, 3 Cox, C. C. 74— Pat- 
 teson. 
 
 A lady wishing to get a railway 
 ticket (the price of which was 10s.) 
 finding a crowd at the pay-place at 
 the station, asked the prisoner, who 
 was nearer in to the pay-place, to 
 get a ticket for her, and handed 
 him a sovereign to pay for it. He 
 took the sovereign intending to steal 
 it, and instead of getting the ticket, 
 ran away : — Held, that he was 
 guilty of larceny at common law. 
 Jieg. V. Thompson, 9 Cox, C. C. 
 244; L. & C. C. C. 225 ; 32 L. J., 
 M. C. 53; 8 Jur., K S. 11^4; H 
 W. R. 40 ; 7 L. T., N". S. 432. 
 
 Asportation and Appropriation.] 
 — Where goods in a shop were tied 
 to a string, which was fastened by 
 one end to the bottom of the count- 
 er, and a thief took up the goods 
 and carried them away towards the 
 door as far as the string would per- 
 mit: — Held, that being no sever- 
 ance, there was no asportation, and 
 consequently that it was not a felony. 
 Anon., 2 East, P. C. 556 ; 1 Leach, 
 C. C, 321, n. 
 
 Where a prisoner set up a long 
 bale upon end in a waggon, and 
 cut the wrapper all the way down 
 with intent to remove the contents, 
 but was apprehended before he had 
 taken anything out ofit:— Held, that 
 there was not a sufficient asporta- 
 tion },o constitute a larceny. Bex 
 V. Gherry, 1 Leach, C. C. 236, n. ; 
 2 East, P. C. 556. 
 
 So where a prisoner stopped the 
 prosecutor, who was carrying a bed 
 on his shoulders, and told him to 
 lay it down, or he would shoot him ; 
 and he laid it down on the ground, 
 but before the prisoner could take it 
 up was apprehended: — ^Held, that 
 
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GENERAL PJEHNCIPLES. 
 
 237 
 
 the offence was not completed. Rex 
 V. Farrell, 1 Leach, C. C. 322, n. 
 
 To remove a package from the 
 head to a tail of a waggon, with a 
 felonious intent to take it away, is 
 a sufficient asportation to constitute 
 a larceny ; but merely to alter the 
 position of a package on the spot 
 where it lies is not. Rex v. Goslet, 
 1 Leach, C. C. 236 ; 2 East, P. C. 
 556. See Rex v. Cherry, 1 Leach,' 
 C. C. 236, n. 
 
 A prisoner, having lifted up a bag 
 from the boot of a coach, was 
 detected before he had got it out ; 
 and it did not appear that it was 
 entirely removed from the space it 
 at first occupied in the boot, but the 
 raising it from the bottom had com- 
 pletely removed each part of it from 
 the space that specific part occupied : 
 — Held, that it was a complete as- 
 portation. Rex v. Walsh, 1 Isl. C. 
 C. 14. 
 
 A banker's clerk entered a ficti- 
 tious sum in the ledger to the credit 
 of a customer, and told him he had 
 paid that sum to his account ; and 
 on the faith of it obtained from the 
 customer his cheque on the bankers, 
 which the prisoner paid to himself 
 by bank-notes from the till, and 
 entered in the waste-book a true 
 account of the cheque, drawer, and 
 notes, as paid " to a man." This 
 was held a felonious taking of the 
 notes from the till. Rex v. Ham- 
 mon, 4 Taunt. 304 ; 2 Leach, C. C. 
 1083. 
 
 Where the jury found that one 
 who assisted in taking _ another's 
 goods from a fire in his presence, 
 but without his desire, and who 
 afterwards concealed and denied hav- 
 ing them, yet took them honestly at 
 first, and that the evil intention to 
 convert them came on the taker 
 afterwards, held no larceny. Rex 
 V. Leigh, 2 East, P. C. 694; 1 Leach, 
 C. C. 411, n. 
 
 If a person is induced to play at 
 hiding under the hat, and stakes 
 down his money voluntarily on the 
 event, meaning to lec^^j' ' 
 
 m§itk^a^^iw^l^dl^ 
 
 if he wins, and to pay it if he loses, 
 the taking up the stake so deposited 
 by him on the table is not a feloni- 
 ous taking, although the taker was 
 made to appear to win the money by 
 fraudulent conspiracy and collusion. 
 Rex V. Nicholson, 2 Leach, C. C. 
 610 ; 2 East, P. C. 669. 
 
 Clandestinely taking away arti- 
 cles to induce the owner (a girl) to 
 fetch them, and thereby to give the 
 prisoner an opportunity to solicit 
 her to commit fornication with him, 
 is not felonious. Rex v. Dickinson, 
 R. & R. C. C. 420. 
 
 Where a party removed a valu- 
 able article, part of a wreck, from a 
 wharf on which it had been placed, 
 and had taken it into his own house, 
 and had afterwards denied the pos- 
 session of it : — Held, that the ques- 
 tion for the jury on an indictment 
 for larceny was, whether, at the 
 time he originally took it he meant 
 to steal it. Reg. v. Sore, 3 F. <fc 
 F. 315— Martin. 
 
 Where a man drove away a flock 
 of lambs from a field, and in doing 
 so inadvertently drove away along 
 with them a lamb, the property of ' 
 another person, and, as soon as he 
 discovered that he had done so sold 
 the lamb for his own use, and then 
 denied all knowledge of it : — Held, 
 that as the act of driving the lamb 
 from the field in the first instance was 
 a trespass, as soon as he resolved to 
 appropriate the lamb to his own use 
 the trespass became a felony. Reg. 
 V. Riley, Dears. C. C. 149 ; 6 Cox, 
 C. C. 88 ; 17 Jur. 189 ; 22 L. J., M. 
 C. 48. 
 
 Non-delivery upon request is evi- 
 dence of a tortious conversion. Rex 
 V. Semple, 1 Leach, C. C. 424 ; 2 
 East, P. C. 691. 
 
 Li an indictment for stealing five 
 pints of porter, it appeared that the 
 prisoner was discovered standing by 
 a barrel of porter, out of a hole in 
 which the porter was running into 
 a can on the ground, and that about 
 five pints had run into the can ; — 
 there was a sufficient as- 
 
238 
 
 LARCENY AND RECEIVERS. 
 
 portavit proved of the porter in the 
 can. Beg. v. Wallis, 3 Cox, C. C. 
 67. 
 
 If at the time of the taking of a 
 chattel there is no animus furandi, 
 a subsequent fraudulent appropria- 
 tion of it will not make the entire 
 transaction larceny. The prisoner 
 being a watchmaker received a 
 watch from the prosecutor to be re- 
 paired, not then intending to steal it. 
 But in a few days he went away, 
 taking the watch with him ; and 
 when taken into custody he said, " I 
 have disposed of the property and 
 it is impossible to get it back" : — 
 Held, that there was no evidence of 
 a larcehy. Heg. v. l^hristle, 3 Cox, 
 C. C. 573; 19 L. J.,M. C. 66 ; 1 
 Den. C. C. 502. 
 
 A. sends his servant with a horse 
 and cart to B. to purchase coals for 
 him, and to bring them back. The 
 bare delivery of the coals into the 
 servant's hands, as between him and 
 his master, gives him the exclusive 
 possession of them ; but that exclu- 
 sive possession is determined by his 
 depositing them in his master's cart. 
 From that time the possession of 
 them is in A. ; and a subsequent tor- 
 tious conversion of a portion of them 
 by the servant, before they reach 
 their ultimate destination, is larceny. 
 Beg. V. Reed, 2 C. L. R. 607. 
 
 A. was indicted for larceny. The 
 jury found him guilty, but Recom- 
 mended him to mercy, " believing 
 that he intended ultimately to re- 
 turn the property" : — Held, that the 
 conviction was right. Reg. v. Tre- 
 bilcock. Dears. & B. C. C. 453 ; 4 
 Jur., N. S. 123; 27 L. J., M. C. 103. 
 
 A drover employed to drive pigs, 
 and paid the expenses of driving 
 them, being paid wages by the day 
 but having the liberty to drive the 
 cattle of any other person ; at the 
 end of his journey sold the pigs, and 
 converted the proceeds to his own 
 use : — Held, not to be larceny, as, 
 at the time he received the pigs into 
 his custody, he had no intention of 
 appropriating them to his own use, 
 
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 and that he was merely a bailee, and 
 not a servant. Reg. v. Hey, T. & 
 M. 209 ; 1 Den. C. C. 602 ; 2 C. & 
 K. 983 ; 14 Jur. 154; 3 Cox, C. C. 
 582. 
 
 If a person is allowed to have 
 possession of a chattel, and he con- 
 verts it to his own use, it is not 
 larceny, upless he had an intention 
 of stealing when he obtained pos- 
 session of it, but if he has merely 
 the custody of a chattel, he is guilty 
 of a larceny if lie disposes of it, 
 although he did not intend to do so 
 at the time when he received it into 
 his custody. Reg. v. Jones, Car. 
 & M. 611— Cresswell. S. P. Reg. 
 V. Evans, Car. & M. 633. 
 
 A. was supplied with a quantity 
 of pig-iron by B. & Co., his em- 
 ployers, which he was to put into a 
 furnace to be melted, and* he was 
 paid according to the weight of the 
 metal which ran out of the furnace 
 and became puddle-bars. A. put 
 the pig-iron into the furnace, and 
 also put in with it an iron axle of 
 B. & Co., which was not pig-iron. 
 The value of the axle to B. & Co. 
 was 7s., but the gain to the prisoner 
 by melting it, and thus increasing 
 the quantity of metal which ran 
 from the furnace, was Id.: — Held, 
 that, if the pi-isoner put the axle 
 into the furnace with a felonious 
 intent to convert it to a purpose for 
 his own profit, it was larceny. Reg. 
 V. Riclmrds, 1 C. & K. 532 — Tin- 
 dal. 
 
 (b) On Sale or Purchase of Goods. 
 If a tradesman sells a stranger 
 goods, enters them to his debit, and 
 makes out a bill of parcels for them 
 as goods sold, and the goods are 
 delivered to the purchaser by the 
 servant of the seller, who receives 
 bills for them, it is not felony, al- 
 though the tradesman sold them for 
 ready money, never intending to 
 give the stranger credit, and it ap- 
 pears that he had taken the apart- 
 ments to which he ordered them to 
 be sent for the purpose of obtain- 
 
SALE OK PURCHASE OF GOODS. 
 
 239 
 
 ing them fraudulently. Hex v. 
 Parhes, 2 Leach, C. C. 614: 2 
 East, P.O. 671. 
 
 Where the prisoner obtained pos- 
 session of a hat from the maker, 
 which had been ordered by a third 
 person, by sending a boy for it in 
 the name of such thii-d person : — 
 Held, it did not amount to larceny. 
 Rex V. Adains, R. & R. C. C. 225. 
 
 The prisoner went into a shop in 
 London, and purchased jewelry, 
 and said that he would pay in cash, 
 and the seller agreed to deliver the 
 goods at a coach-office belonging 
 to an inn, where the prisoner stated 
 that he lodged. The seller made 
 out an invoice and took the goods 
 there, when the prisoner said he 
 had l3een disappointed in receiving 
 some money he expected by letter. 
 Just afterwards a twopenny post 
 letter was put into his hands, which 
 he opened in the presence of the 
 seller, and said he had to meet a 
 friend at Tom's Coffee-house at 
 seven, who would supply the 
 money. The goods were left at 
 the coach-office, and the seller went 
 home. The prisoner had taken a 
 place in the mail, but he counter- 
 manded that, and absconded with 
 the goods. The seller swore that 
 he considered the goods sold if he 
 got his cash, but not before. It 
 was left to the jury to say whether 
 the prisoner had any intention of 
 buying and paying for the goods, 
 or whether he gave the order mere- 
 ly to get possession of them to con- 
 vert them to his own use. The 
 jury found the latter, and the pris- 
 oner was convicted, and the con- 
 viction was held right by the 
 judges. JRex v. Campbell, Car. C. 
 L. 280 ; 1 M. C. C. 179. 
 
 Where a person went into a shop 
 for the purpose of purchasing a 
 ruby pin, and, after selecting one, 
 which was put into a box, while 
 the young man who was serving 
 him was absent for about a minute, 
 took it out of the box, and put it 
 into his stock, and afterwards went 
 
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 into the shawl department of the 
 shop to purchase other articles, say- 
 ing that he would return and pay 
 for both together, but was allowed 
 to go away without inquiry being 
 made as to whether he had paid in 
 the shawl department, and a bill, 
 including the price of the pin, was 
 sent the next day to the house 
 where he was residing : — Held, on 
 the trial of the prisoner for stealing 
 the pin, that, under these cii-cum- 
 stances, it was for the jury to say 
 whether there was any intention to 
 steal the pin, and whether there 
 was or was not credit given for it. 
 Reg. V. Box, 9 0. & P. 126— Pat- 
 teson and Rolfe. 
 
 A., bargaining with B. about 
 some waistcoats, said, " You must 
 go to the lowest price, as it will be 
 ready money." B. said, " Then 
 you shall have them for 12s.," to 
 which A. assented. A. then said 
 he should put the waistcoats into 
 his gig, which was then standing 
 at the door ; B. replied, " Very 
 well." A. drove off with the 
 waistcoats without paying for them, 
 and absconded for two years. The 
 jury returned the following verdict: 
 — " In our opinion the waistcoats 
 were parted with conditionally, that 
 the money was to be paid at the 
 time, and that A. took them with 
 a felonious intent": — Held, a lar- 
 ceny in A. Reg v. Cohen, 2 Den. 
 C. C. 249. 
 
 A. and B., pretending that one of 
 them was a sea captain and a 
 Frenchman unable to speak En- 
 glish, offered to the prosecutrix a 
 dress for sale at 25s., saying that if 
 she would give that price for it, she 
 should have another dress, which 
 was produced, worth 12s., into the 
 bargain. She agreed to this, and 
 took a sovereign and a shilling 
 from her pocket. Whilst she was 
 holding the money, A. or B. opened 
 her hand and took it out, though 
 not forcibly. He then declined to 
 take the other 4s., but laid down 
 the dress first produced, and re- 
 
240 
 
 LARCENY AND RECEIVERS. 
 
 fused to, let her have the other. 
 The dress proved to be of little 
 value : — Held, that they were prop- 
 erly convicted of larceny. Eeg. v. 
 Morgan, Dears. C. C. 395 ; 18 Jur. 
 1085 ; 6 Cox, C. C. 408. 
 
 (c) By a Trick or a Fravd. 
 
 Getting goods delivered into a 
 hired cart, on the express condition 
 that the price will be paid for them 
 before they are taken from the cart, 
 and then getting them from the 
 cart without paying the price, will 
 be larceny, if the prisoner never 
 had any intention of paying, but 
 had, ab initio, the intention to de- 
 fraud. Bex V. Pratt, 1 M. C. C. 
 250. 
 
 Taking goods, though the pris- 
 oner has bargained to buy, is feloni- 
 ous, if by the usage the price ought 
 to be paid before they are taken, 
 and the owner did not consent to 
 their being taken, and the prisoner 
 when he bargained for them did 
 not intend to pay for them, but 
 meant to get them into his posses- 
 sion, and dispose of them for his 
 own benefit without paying for 
 them. Bex v. Gilbert, 1 M. C. C. 
 185. 
 
 If a person, having ordered a 
 tradesman to bring goods to his 
 house, look out a certain quantity, 
 asks the price of them, separates 
 them from the rest, and then, by 
 sending the tradesman home on 
 pretence of wanting other articles, 
 takes the opportunity of running 
 away with the goods so looked out, 
 with intent to steal them, it is lar- 
 ceny ; for, as the sale was not com- 
 pleted, the possession of the prop- 
 erty still remained in the trades- 
 man. Bex v. Sharpless, 1 Leach, 
 C. C. 92 ; 2 East, P. C. 675. 
 
 Where property, which the pros- 
 ecutor had bought, was weighed 
 out in the presence of his clerk, 
 and deUvered to his carman's serv- 
 ant to cart, who let other persons 
 take away the cart and dispose of 
 the property for his benefit jointly 
 
 with that of the others, the car- 
 man's servant, as well as the others, 
 are guilty of larceny at common 
 law. Bex v. Harding, R. & R. 
 C. C. 125. 
 
 Where an owner sends goods by 
 his servant to be delivered to A., 
 but B. fraudulently procures the 
 delivery to himself by pretending 
 to be A., he is guilty of felony. 
 Bex V. Wilkins, 2 East, P. C. 673 ; 
 1 Leach, C. C. 520. 
 
 Getting a parcel from a carrier's 
 servant, by falsely pretending to be 
 the person to whom it is directed, 
 if it is taken animo furandi it is a 
 larceny ; for the servant has no au- 
 thority to part with it but to the 
 right person. Bex v. Longstreeth, 
 1 M. C. C. 137. 
 
 To obtain property by fraud, and 
 under a preconcerted plan to rob, 
 is felony, but the animus furandi 
 must be found by the jury. Bex 
 V. Homer, 1 Leach, C. C. 270. 
 
 Where a prisoner having oflered 
 to accommodate the prosecutor with 
 gold for notes, the latter put down 
 a number of bank-notes for the 
 purpose of their being exchanged, 
 which the prisoner took up and ran 
 away with : — Held, a larceny, if 
 the jury believed that he intended 
 to run away with them at the time, 
 and not to return the gold. Bex v. 
 Oliver, 2 Russ. C. & M. 122— 
 Wood. 
 
 To obtain a bill of exchange 
 from an indorsee, under a pretence 
 of getting it discounted, is felony, 
 if the jury finds that the indorsee 
 did not intend to leave the bill in 
 the prisoner's possession without 
 the money, and that he undertook 
 to discount it with a preconcerted 
 design to convert its produce to his 
 own use. Bex v. Aickles, 1 Leach, 
 C. C. 294 ; 2 East, P. C. 675. 
 
 Where, in a case of ring-drop- 
 ping, the prisoners prevailed on the 
 prosecutor to buy the share of the 
 other party, and the prosecutor was 
 prevailed on to part with his mon- 
 ey, — intending to part with it for 
 
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BY A TRICK OR A FRAUD. 
 
 241 
 
 ever, and not with the possession of 
 it only : — Held, that this was not a 
 larceny. Meg. v. Willsm, 8 C. & 
 P. m— Coleridge. 
 
 A. was treating B. at a beer- 
 house, and A. wishing to pay, put 
 down a sovereign desiring the land- 
 lady to give him change ; she could 
 not do so ; and B. said that he 
 would go out and get change. A. 
 said, " You won't come back with 
 the change." B. replied, " Never 
 fear." A. allowed B. to take up 
 the sovereign, and B. never re- 
 turned either with it or the change : 
 — Held, no larceny, as A. having 
 permitted the sovereign to be taken 
 away for the purpose of being 
 changed, he could never have ex- 
 pected to receive back the specific 
 coin, and had therefore divested 
 himself of the entire possession of 
 it. Reg. v. Thomas, 9 C. & P. 
 741 — Coleridge. 
 
 A. went to a shop, and asked a 
 boy there to give him change for 
 a half-crown; the boy gave him 
 two shillings and sixpenny worth 
 of copper. The prisoner held out a 
 half-crown, which the boy touched, 
 but never got hold of it, and the 
 prisoner ran away with the two 
 shillings and the copper : — Held, a 
 larceny of the two shillings and the 
 copper. Rex v. Williams, 6 C. & 
 P. 390— Park. 
 
 A landlord went to his tenant 
 (who had removed all his goods) 
 to demand rent amounting to 12^. 
 ICs., taking with him a receipt 
 ready written and signed ; the ten- 
 ant gave him 21., and asked to look 
 at the receipt. It was given to 
 him, and he refused to return it or 
 to pay the remainder of the rent. 
 It was proved by the landlord, that, 
 at the time he gave the tenant the 
 receipt, he thought the tenant was 
 going to pay him the rent; and 
 that he should not have parted 
 with the receipt unless he had been 
 paid all the rent ; but that when 
 he put the receipt into the tenant's 
 
 hand he never expected to have the 
 receipt again ; and that he did not 
 want the receipt again, but wanted 
 his rent to be paid : — Held, a lar- 
 ceny ; and that the fact of the 
 tenant giving the 2Z. .made no dif- 
 ference. Reg. V. Rodrmay, 9 C. & 
 P. 784- Coleridge. 
 
 Where a prisoner took a packet 
 of diamonds to a pawnbroker, with 
 whom he had previously pledged a 
 brooch ; and having agreed with 
 the shopman for the amount of the 
 loan on the diamonds, sealed them 
 up and received the amount, de- 
 ducting the amount for which the 
 brooch was pledged; but, instead 
 of giving the packet of diamonds 
 to the shopman, gave him a packet 
 of similar appearance, containing 
 only glass : — Held, that it was not 
 larceny, but only a fraud. Rex v. 
 Meilheim, Car. C. L. 281. 
 
 If a pawnbroker's servant, who 
 has a general authority from his 
 master to act in his business, de- 
 livers up a pledge to the pawner, 
 on receiving a parcel from the 
 pawner, which he supposes contains 
 valuables he has just seen in the 
 pawner's possession in a similar 
 parcel, the receipt of the pledges 
 by the pawner is not a larceny. 
 Rex V. Jackson, 1 M. C. C. 119. 
 
 A. went to B.'s shop, and said 
 that he had come from C. for some 
 hams, and at the same time pro- 
 duced a note in the following' 
 terms : " Have the goodness to give 
 the bearer ten good thick sides of 
 bacon, and four good showy hams, 
 at the lowest price. I shall be in 
 town on Thursday next, and will 
 call and pay you. Yours, &c., 
 C." B. thereupon delivered the 
 hams to A. The note was forged, 
 and A. had no such authority from 
 C: — Held, that A. was not guilty 
 of larceny. Reg. v. Adams, 1 
 Den. C. C. 38. 
 
 A gipsey, obtaining money and 
 goods under pl-etence of j)ractising 
 witchcraft, without an intention to 
 
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242 
 
 LARCENY A¥D RECEIVERS. 
 
 return them, is properly indicted 
 for larceny. Reg. v. Bunce, 1 F. 
 &, F. 523— Channell. 
 
 Wheat, not the property of the 
 prosecutor, but which had been 
 consigned tp him, was placed in 
 one of his storehouses, under the 
 care of a servant, E., who was to 
 deliver it only to the orders of the 
 prosecutor, or his managing clerk. 
 A., who was in the employ of the 
 prosecutor, obtained the key of the 
 storehouse from E., and was al- 
 lowed to remove a quantity of the 
 wheat, upon his representation to 
 E. that he had been sent by the 
 clerk, and was to take .the wheat 
 to a railway station. This repre- 
 sentation was false, and he subse- 
 quently disposed of the wheat : — 
 Held, that he was guilty of a lar- 
 ceny of tlie wheat. Recj. v. Rob- 
 ins, Dears. C. C. 418 ; 18 Jur. 
 1058. >.^.-'' ^ ^ 
 
 The fi'audulent takinal® >--a rail- 
 way ticket for the purptj^'bf using 
 it to travel, and so defjMiding the 
 railway companyr'is larceny, al- 
 though the ticlcet would, if used, 
 be I'fflbHvaed- to the company at the 
 end pi the journey. Reg. v. Beech- 
 a«6,"5 Cox, C. C. 181. 
 
 On the trial of an indictment for 
 larceny it appeared that the prisoner 
 having given tlie prosecutor an or- 
 der for certain goods, they were 
 sent by a servant with directions 
 not to part with them without the 
 money; on the way the servant was 
 met by the prisoner, who said the 
 goods were for him and took them, 
 giving two cqunterfeit half-crowns 
 in payment : — Held, that he was 
 properly indicted for larceny. Reg. 
 Y. Webb, 5 Cox, C. C. 154. 
 
 A., in the hearing of B. told his 
 servant to go to H. and pay him 
 some money, upon which B. offered 
 to take the money for A., falsely 
 stating that he lived only six doors 
 from H. Induced by the offer of 
 B., A. delivei'ed the* money to him 
 to carry to H. B. appropriated the 
 
 money to his own use. He was in- 
 dicted for larceny of the money, 
 and found guilty, the jury stating 
 that their verdict was grounded on 
 their belief that he had obtained the 
 money by a trick, intending at the 
 time to appropriate it to his own 
 use : — Held, that the conviction was 
 right. Reg. v. Brown, Dears. C. C. 
 616; 2 Jui-., ]Sr. S. 192. 
 
 J., owner of a watch, placed it 
 with the seller to be regulated. The 
 seller had no authority to deliver it 
 to any one but J'., or some one com- 
 missioned by him to receive it. By 
 the fraud of the prisoner, the seller 
 was induced to believe that J. had 
 desired the watch to be sent by 
 post, inclosed in a letter to J., to 
 the care of the postmaster at B. 
 The postmaster through the fraud 
 of the prisoner, was induced to de- 
 liver the letter containing the watch 
 to him, believing him to be J. or 
 his agent : — Held, that the prisoner, 
 having appropriated the watch to 
 his own use, was guilty of larceny 
 of it from the owner. Reg. v. Kay, 
 Dears. & B. C. C. 231 ; 3 Jur., N. S. 
 546; 26L. J., M. C. 119. 
 
 At a colliery, whei-e coal was sold 
 by retail, it was the practice for the 
 carts, when loaded, to be taken to 
 a weighing machine in the colliery 
 yardj where they were weighed, 
 and the price of the coal paid. B. 
 went to the yard and asked for a 
 load of soft coal ; his cart was ac- 
 cordingly loaded by a servant of 
 the prosecutor with that description 
 of coal, and he was then left to take 
 it to be weighed, and pay for it. 
 He, however, covered over the top 
 of the coal in the cart with slack 
 (an inferior description of coal), 
 and then went to the weighing ma- 
 chine, and told the clerk he had got 
 slack ; the clerk accordingly weigh- 
 ed the cart, and charged for its con- 
 tents as slack. B. paid for the coal 
 as slack, and went away with it : — 
 Held, that he was guilty of larceny 
 of the soft coal. Reg. v. Bramky, 
 
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ON BREACH OF CONTRACT TO SELL. 
 
 243 
 
 L. & C. 21; 8 Cox, C. C. 468; 7 
 Jur., N. S. 473 ; 9 W. R. 555 ; 4 L. 
 T.,N. 8.309. 
 
 B., a broker, having large deal- 
 ings with the prosecutors, Russian 
 merchants, in October entered into 
 a contract for the purchase of 343 
 casks of tallow which were expect- 
 ed to arrive by the Hesper, in the or- 
 dinary course of trade. The tallow 
 arrived accordingly on the 5th of 
 December, and in due course the 
 transaction should have been com- 
 pleted within fourteen days, and 
 notice was given to B. of the ar- 
 rival of the tallow, and he was 
 called upon to complete the bar- 
 gain. He requested that the tallow 
 might be allowed to remain in the 
 docks for a short time. This was 
 granted. On January 28th the 
 manager for the prosecutors called 
 on him, and insisted on the com- 
 pletion of the contract, and B. said 
 he would pay for the tallow on the 
 following day. On the next day 
 B. sent his clerk to the prosecutors' 
 counting-house, and obtained deliv- 
 ery orders for the tallow, and ten- 
 dered to the prosecutors a crossed 
 cheque on a bank of London for the 
 price of the tallow. Immediately 
 on obtaining possession of the deliv- 
 ery orders, he sent them to the 
 docks, and transferred the pi-operty 
 into fresh warrants, and when the 
 cheque was presented there were no 
 assets : — Held, not to be a larceny 
 of the delivery orders by a trick, 
 but a lawful possession of them ob- 
 tained by reason of the prosecutors 
 giving to B. credit in respect of the 
 crossed cheque. Reg. v. North, 8 
 Cox, C. C. 433— Pollock. 
 
 By a Trick or a Threat.]— A. 
 acted as auctioneer at a mock auc- 
 tion. He knocked down some cloth 
 for 26s. to B., who had not bid for 
 it, as A. kiiew. B. refused to take 
 the cloth or to pay for it ; A. refus- 
 ed to allow her to leave the room 
 unless she paid. Ultimately she paid 
 the 2 6«. to A. and took the cloth. She 
 
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 paid the 26«. because she was afraid. 
 A. was indicted for, and convicted 
 of, feloniously stealing these 26«. : — 
 Held, that the conviction was right, 
 because, if the force used to B. 
 made the taking a robbery, larceny 
 was included in that crime ; if the 
 force was not sufficient to constitute 
 a robbery, the taking of the money 
 nevertheless amounted to larceny, 
 as B. paid the money to A. against 
 her will, and because she was afraid. 
 Reg. V. McGrath, 1 L. R., C. C. 
 205; 21 L. T., N. S. 543 ; 18 W. 
 R. 119; 37 L. J., M. C. 7. 
 
 Held, also, that, imder the cir- 
 cumstances, it was not necessary 
 that the jury should be asked whe- 
 ther Jl paid the money against her 
 will, as from the evidence it was 
 clear that there could have been 
 no doubt in the minds of the jury 
 that the money was so paid. lb. 
 
 (d) On Breach of Contract to sell. 
 
 'A drover of cattle was employed 
 by a grazier in the country to drive 
 eight oxen to London ; his instruc- 
 tions were, that, if he could sell 
 them on the road, he might ; and 
 those he did not so sell he was to 
 take to a particular salesman in 
 Smithfield market, wlio was to sell 
 them for the grazier. The drover 
 sold two on the road, and instead of 
 taking the remaining six to the sales- 
 man, drove them himself to Smith- 
 field market, and sold them there, 
 and received the money, which he 
 applied to his own use : — Held, 
 that he could not be convicted eith- 
 er of larceny or embezzlement. Reg, 
 V. Ooodbody, 8 C. & P. 665— Little- 
 dale and Parke. 
 
 On an indictment against a farm- 
 er for stealing sheep entrusted to 
 him for agistment, and which he 
 had sold, concealing for upwards of 
 a month the fact of the sale, there 
 being some evidence that he had, 
 or might have supposed that he 
 had, some impfied authority to sell, 
 or that the prosecutor would not 
 object to it if he realised a good 
 
244 
 
 LAKCENY AND RECEIVERS. 
 
 price, the jury was directed that 
 the question was, whether , at the 
 time of the sale the prisoner had 
 any reason to suppose he might sell. 
 Beg. V. Leppard, 4 P. & F. 51— 
 Erie. 
 
 A., carrying on business on his 
 own account, entered into an en- 
 gagement with B. to sell goods for 
 him, and for certain purposes to be 
 his servant. B. entrusted A. with 
 certain goods to dispose of in a par- 
 ticular way. A. converted them 
 to his own use : — Held, that it was a 
 question for the jury to say whether, 
 when A. received the goods, he had 
 the intention of misappropriating 
 them. Meg. v. Waller, 10 Cox, C. 
 C. 360 — Russell Gurney, Recorder. 
 
 (e) By Hirers of Property. 
 
 Obtaining a post-chaise by hiring, 
 with a felonious intent to convert it 
 to the use of the hirer, is felony, al- 
 though the contract for hiring was 
 not for any definite time. Hex v. 
 Semple, 1 Leach, C. C. 420 ; 2 East, 
 P. C. 691. 
 
 If a man who is hired to drive 
 cattle sells them, it is larceny ; for 
 he has the custody only, and not 
 the right to the possession ; his pos- 
 session is the owner's possession, 
 though he is a general drover, at 
 least if he is paid by the day. Hex 
 V. M'Namee, 1 M. C. C. 368. See 
 Reg. V. Hey, 3 Cox, C. C. 582. 
 
 A person hired to drive cattle to 
 a particular place, who sells the 
 same and absconds with the mon- 
 ey, is guilty of stealing, though the 
 intention to sell is not conceived till 
 after taking possession of the cattle. 
 Reg. V. Jackson, 2 M. 0. C. 32. 
 
 If goods are delivered to a person 
 on hire, and he takes them away, 
 animo furandi, he is guilty of lar- 
 ceny, although no actual conversion 
 of them by sale or otherwise is 
 proved. Reg. v. Janson, 4 Cox, C. 
 C. 82— Coleridge. 
 
 A. hired a horse and gig with 
 the felonious intention of converting 
 them to his own use, and afterwards 
 
 offered them for sale, but no sale 
 took place : — Held, nevertheless, 
 that he was guilty of larceny. Ih. 
 
 To constitute a larceny by a party 
 to whom goods have been delivered 
 on hire, there must not only be an 
 original intention to convert them 
 to his own use, but a subsequent 
 actual conversion ; and a mere 
 agreement by the hirer to accept a 
 sum offered for the goods is not such 
 a conversion, if the party who makes 
 the offer does not intend to purchase 
 unless his suspicions, as to the hon- 
 esty and right of the vendor to sell, 
 are removed. Reg. v. Brooks, 8 C. 
 & P. 295— Tindal. 
 
 A., the owner of a boat, was^em- 
 ployed by B., the captain of a ship, 
 to carry a number of wooden staves 
 ashore in his boat ; B.'s men were 
 put into the boat, but were under 
 the control of A., who did not deliv- 
 er all the staves, but took one of 
 them away to the house of his 
 mother : — Held, that this was a 
 bailment of the staves to A., and 
 not a charge only ; and that a mere 
 non-delivery of the staves would 
 not have been a larceny in A.; but 
 that if A. separated one of the 
 staves from the rest, and carried it 
 to a place different from that of its 
 destination, with intent to appro- 
 priate it to his own use, that was 
 equivalent to a breaking of bulk, 
 and therefore would be sufficient to 
 constitute a larceny. Rex v. How- 
 ell, 1 C. & P. 325— Patteson. 
 
 A. hiring a horse and riding it 
 away from a livery-stable, and af- 
 terwards selling it, cannot be con- 
 victed of larceny unless he had the 
 intention of stealing the horse when 
 he originally hired it, and that is a 
 question for the jury. Reg. v. Cole, 
 2 Cox, C. C. 340— Patteson and 
 Coleridge. 
 
 (f ) From Bailees at Common Law. 
 If a man steals his own goods 
 from his own bailee, though he has 
 no intent to charge the bailee, but 
 his intent is to defraud the Idns, 
 
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BY BAILEES AT COMMON LAW. 
 
 245 
 
 yet if the bailee had an interest in 
 the possession, and could have with- 
 liela it from the owner, the taking- 
 is a larceny. Mex v. Wilkinson, E. 
 & R. C. C. 470. 
 
 _ If a part-owner of property steals 
 it from A., in whose sole custody it 
 is, and who is solely responsible for 
 its safety, he is guilty of larceny, 
 and the property is well laid in A. 
 alone, although he is also a part- 
 owner of the property stolen. Reg. 
 V. Webster, L. & C. 77 ; 9 Cox, 0. 
 C. 13 ; S. P., Rex V. Bramley, R. 
 & R. C. C. 478. 
 
 The prosecutor's horse had been 
 impounded. The prisoner pretended 
 that he had been sent by the prose- 
 cutor, paid the pound-keeper's de- 
 mand, received the horse, and made 
 off with it. He was indicted for 
 larceny. The indictment had two 
 counts, one laying the property in 
 the prosecutor and the other in 
 the pound-keeper : — Held, that the 
 pound-keeper was a servant of the 
 owner, and, therefore, that the of- 
 fence was larceny. Reg. v. Simpson, 
 2 Cox, C. C. 235— WilUams. 
 
 (g) By Bailees at Common Law. 
 
 If the master or owner of a ship 
 steals some of the goods delivered 
 to him to carry, it is not larceny in 
 him unless he takes the goods out 
 of their packages. Rex v. Madox, 
 R. & R. C. C. 92. 
 
 If one employed to carry goods 
 for hire appropriates them to his 
 own use, but does not break bulk, 
 this is no larceny, although the per- 
 'son so employed was not a common 
 carrier, bu.t was only employed in 
 this particular instance. Rex v. 
 Fletcher, 4 C. & P. 557— Patteson. 
 
 But if a person not being a serv- 
 ant of the party who intrusts him, 
 receives a parcel containing notes to 
 take to a coach-office, and abstracts 
 the notes on his way there, and ap- 
 pUes them to his own use, he is guilty 
 of larceny. Reg. v. Jenkins, 9 C. 
 & P. 38 — Bosanquet and Gurney. 
 
 A. consigned three trusses of hay 
 
 to B., and sent them by the prison- 
 er's cart ; the prisoner took away 
 one of the trusses, which was found 
 in his stable, but not broken up : — 
 Held, no larceny, as the prisoner did 
 not break up the truss. Rex v. 
 Pratley, 5 C. & P. 533— Parke. 
 
 If a parcel is accidentally left in a 
 hackney-coach, and the coachman, 
 instead of restoring it to the owner, 
 detains it, opens it, destroys part of 
 its contents, and borrows money on 
 the rest, he is guilty of felony. Rex 
 V. Wynne, 1 Leach, C. C. 413 ; 2 
 East, P. C. 664, 697 ; S. P., Rex v. 
 Sears, 1 Leach, C. C. 415, n. 
 
 A. was convicted of larceny under 
 the following circumstances : he was 
 a common carrier, and employed by 
 the prosecutor to carry a cargo of 
 coals from a ship to a coal-yard be- 
 longing to the prosecutor. He cart- 
 ed the coals to the first-mentioned 
 coal-yard, and was engaged for sev- 
 eral days in carting them thence to 
 the prosecutor's other yard. He 
 left the first-mentioned coal-yard on 
 one of those days with two carts and 
 a waggon, all laden with coals ; be- 
 fore he arrived at the other yard, he 
 delivered the two cart loads to a 
 third person on his own account, but 
 he duly delivered the waggon-load 
 at the prosecutor's yard : — Held, that 
 the conviction was wrong, the coals 
 having been delivered to A. as a car- 
 rier, and there having been no break- 
 ing of bulk or other determination 
 of the bailment. Reg. v. Garnish, 
 Dears. C. C. 425 ; 6 Cox, C. C. 432. 
 
 If the owner j)arts with the pos- 
 session of goods for a special pur- 
 pose, and the bailee, when that pur- 
 pose is executed, neglects to return 
 them, and afterwards disposes of 
 them ; if he had not a felonious in- 
 tention when he originally took 
 them, his subsequent withholding 
 and disposing of them will not con- 
 stitute a new felonious taking, or 
 make him guilty of felony. Rex v. 
 Banks, 'R. &. R. C. C. 441. 
 
 If a warehouseman has several 
 bags of wheat delivered to him for 
 
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246 
 
 LARCENY AND RECEIVERS. 
 
 safe custody, ^nd he takes the whole 
 of the wheat out of one bag, it is no 
 less a larceny than if he had severed 
 a part from the residue of the wheat 
 in the same bag, and had taken only 
 that part, leaving the remainder of 
 the wheat in the bag. Mex v. Bra- 
 zier, R. &.R. C. C. 337. 
 
 Prisoner was indicted for stealhig 
 a pair of boots, the property of A., 
 and acquitted. She was then in- 
 dicted again for stealing the same 
 boots, laid as the jiroperty of B., and 
 pleaded autrefois acquit. A. was a 
 boy fourteen years of age, living 
 with and assisting B., who was his 
 father ; the boots were the property 
 of B., but at the time they were 
 stolen by the prisoner, A. had tem- 
 poraiily, in his father's absence, the 
 charge of the stall from which they 
 were stolen : — Held, first, that A. 
 was not a bailee, and that the own- 
 ership of the boots could not be 
 properly laid in him. Reg. v. Green, 
 Dears. & B. C. C. 113 ; 2 Jur., N. 
 S. 1146;26L. J.,M. C. 17:7 Cox, 
 C. C. 187. 
 
 Held, secondly, that the plea of 
 autrefois acquit could not be sus- 
 tained, notwithstanding the power 
 of amendment given by 14 & 15 
 Vict. c. 100. lb. 
 
 S., bailee of P.'s mare, took her 
 to certain livery-stables, and paid 
 P. a balance due to him, after de- 
 ducting money due for the keep of 
 the mare, and told P. that she was 
 at the livery-stables. P. sent word 
 to the stable-keeper not to let S. 
 have the mare again, and twice re- 
 fused S. permission tQ ride the mare. 
 S., after P. had left town, obtained 
 the mare from the ostler at the 
 livery-stables by a false statement, 
 and never returned her : — Held, 
 that S. was rightly convicted of 
 larceny. Reg. v. Stear, 2 C. & K. 
 988 ; 1 Den: C. C. 349 ; T. & M. 
 11; 13 Jur. 41; 18L. J.,M. C.30. 
 
 (h) By Pawning Property. 
 The defence to a charge of steal- 
 ing, that the prisoner pledged the 
 
 property, intending to redeem and 
 then restore it, is a defence not^ to 
 be generally encouraged, though, 
 if clearly made out in proof, it may 
 be allowed to prevail. The rule 
 for the jury's guidance in such a 
 case seems to be, that, if it clearly 
 appears that the prisoner only in- 
 tended to raise money upon the 
 property for a temporary purpose, 
 and at the time of pledging the ar- 
 ticle had a reasonable and a fair ex- 
 pectation of being enabled shortly, 
 by the receipt of money, to take it 
 out and restore it, he might be ac- 
 quitted ; but otherwise, not. Reg. 
 V. Phetheon, 9 C. & P. 553— Gur- 
 ney. 
 
 On a charge of larceny it was 
 pi-oved that the prisoner had taken 
 property from ready -furnished lodg- 
 ings that were let to her, and pawn- 
 ed it : — Held, that the fact that 
 she had frequently pawned and aft- 
 wards redeemed portions of the 
 same property, was no answer to 
 the charge. There must not only 
 be the intent, but also the ability 
 to redeem, to render such defence 
 available. Reg. v. Medland, 5 Cox, 
 C. C. 292. 
 
 Upon an indictment for larceny, 
 it was proved that a box of plate 
 having been deposited with the pris- 
 oner for safe custody, he broke it 
 open, and took out a part of the 
 plate, which he oiFered to a pawn- 
 broker as a security for bOl. His 
 offer was declined, but he after- 
 wards pledged the whole box of 
 plate with another person as securi- 
 ty for 200;. When he was called ' 
 upon to restore the plate to the 
 owner, he had not the means of re- 
 deeming it, and was taken into cus- 
 tody. The jury found him guilty, 
 but recommended him to mercy, 
 believing that he intended ultimate- 
 ly to return the property :— Held, 
 that he was rightly convicted of 
 larceny at common law; because 
 the jury had found a verdict of 
 guilty which was well warranted 
 by the evidence ; and though they 
 
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MEANS OF FACILITATING, ETC. 
 
 247 
 
 had recommended him to mercy on 
 th^ ground that he intended ulti- 
 mately to restore the property, 
 that expression was not necessarily 
 inconsistent with the verdict, and 
 ought not- to be considei-ed equiva- 
 lent to a finding, that at the time 
 when he took the plate wrongfully 
 he took it for the purpose of merely 
 making a temporary use of it. 
 Reg. V. TreUlcock, 7 Cox, C. C. 
 408 ; Dears. & B. C. C. 453 ; 4 
 Jm-., N. S. 123 ; 27 L. J., M. C. 
 103. 
 
 The prisoner was employed by a 
 tailor to sell clothes for him about 
 a particular county ; the price of 
 each article was fixed, and the 
 clothes were entrusted to the pris- 
 oner on the arrangement that he 
 was to sell them at the price fixed, 
 he receiving 3s. in the pound on 
 the amount received for them, and 
 being bound to bring back the re- 
 mainder of the clothes which were 
 unsold. The prisoner received 
 from the prosecutor a parcel of 
 clothes on these terms, but, instead 
 of selling them, he fraudulently 
 pawiied a portion of them for his 
 own benefit, and afterwards fraudu- 
 lently misappropriated the residue to 
 his own use : — Held, that the original 
 bailment of the goods to the prosecut- 
 or was determined by the unlawful 
 act of pawning part of them, and 
 that the subsequent fraudulent mis- 
 appropriation of the remainder 
 amounted to larceny. Reg. v. Poy- 
 ser, 2 Den. C. C. 233 ; T. & M. 559 ; 
 15 Jur. 386 ; 20 L. J., M. C. 191 ; 6 
 Cox, C.^C. 241. 
 
 (i) Means of facilitating or detecting 
 Larceny. 
 The assent of a prosecutor to 
 give facility to the commission of 
 a larceny, for the purpose of detect- 
 ing the offenders, does not do away 
 with the felony, although the prop- 
 erty was not taken agamst his will. 
 Rex V. Egginton, 2 Leach, C. C. 
 913 ; 2 East, P. C. 494, 6G6 ; 2 B. 
 & P. 508. 
 
 Digitized by Microsoft® 
 
 Overtures were made by a per- 
 son to the servant of a publican, to 
 induce him to join him in robbing 
 his master's till. The servant com- 
 municated the inatter to the master, 
 and, some weeks afterwards, the 
 servant, by the direction of his mas- 
 ter, opened a coramunication with 
 the person who had made the over- 
 tures, in consequence of which he 
 came to the master's premises. 
 The master having previously 
 marked some money, it was, by his 
 direction, placed upon the counter 
 by the servant, in order that it 
 might be taken up by the party 
 who had come for that purpose. 
 It was so taken up by him : — Held, 
 larceny in such party. Reg. v. 
 Williams, 1 C. & K. 195. 
 
 {]) In case of Lost Property. 
 
 If a man finds goods that have 
 been actually lost, or are reasona- 
 bly supposed by him to have been 
 lost, and appropriates them with 
 intent to take the entire dominion 
 over them, really believing, when 
 he takes them, that the owner can- 
 not be found, it is not larceny. 
 Reg. V. Thurhorn, 1 Den. C. C. 
 387 ; T. & M. 67 ; 2 C. & K. 831 ; 
 13 Jur. 499; 18 L. J., M. C. 140; 
 S. O. Rec). V. Wood, 3 New Sess. 
 Cas. 58l'; 3 Cox, C. C. 453. 
 
 But if he takes them with a like 
 intent, though lost, or reasonably 
 supposed to be lost, but reasonably 
 believing that the owner can be 
 found, it is larceny. lb. 
 
 A. picked up the purse of B., 
 which contained money, on a turn- 
 pike road, along which B. had pre- 
 viously traveled by coach. A. con- 
 verted the purse and its contents to 
 his own use : — Held, no larceny ; 
 and that A. was liable civilly, but 
 not criminally. Reg. v. Mole, 1 C. 
 & K. 417— Parke. 
 
 If there had been any mark on 
 the purse by which the owner 
 could have been known, it would 
 have been otherwise. lb. 
 
 If a person drops any chattel, 
 
248 
 
 LARCENY AWD RECEIVERS. 
 
 and another finds it, and takes it 
 away with the intention of appro- 
 priating it to his own use, and only 
 restores it because a reward is of- 
 fered, he is guilty of larceny. Sec/. 
 V. Peters, 1 C. & K. 245— Rolfe. 
 S. P. Beg. V. Heed, Car. & M. 306. 
 
 The only cases jn which a party 
 finding a chattel of another can be 
 justified in appropriating it to his 
 own use, is where the owner can- 
 not be found, or where it may be 
 fairly said that the owner has aban- 
 doned it. lb. 
 
 Where a bank-note is lost, and 
 is found by a person who appropri- 
 ated it to his own use : — Held, that 
 the j ury is not to be directed to consid- 
 er at what time the prisoner, after tak- 
 ing it into his possession, resolved 
 to appropriate it to his own use, 
 but whether at the time he took 
 possession of it he knew, or had the 
 means of knowing, who the owner 
 was, and took possession of it with 
 intent to steal it ; for if his original 
 possession of it was an innocent 
 one, no subsequent change of his 
 mind, or resolution to appropriate 
 it to his own use, would amount to 
 larceny. Peg. v. Preston, 2 Den. 
 C. C. 353 ; T. & M. 641 ; 16 Jur. 
 109 ; 21 L. J., M. C. 41 ; 5 Cox, 
 C. C. 390. 
 
 A. found a watch, and subsequent- 
 ly converted it to his own use ; the 
 jury found him " not guilty of steal- 
 ing the watch, but guilty of keeping 
 jjossession of it in the hope of re- 
 ward, from the time he first had the 
 watch." A verdict of guilty was 
 entered at the trial : — Held, wrong, 
 and that on these facts and this 
 finding it was no larceny. Peg. v. 
 York, 2 C. & K. 841 ; 1 Den. C. 
 C. 335 ; T. & M. 20 ; 12' Jur. 1078 ; 
 18 L. J., M. C. 38 ; 3 Cox, C. C. 
 181. 
 
 A purse, containing money, was 
 left by a purchaser on the prisoner's 
 stall. A third person aftei-wards 
 pointed out the purse to the prisoner, 
 supposing it to be hers. She put it 
 in her pocket and afterwards con- 
 
 cealed it, and on the return of the 
 owner denied all knowledge of it. 
 The jury found that ,the prisoner 
 took up the purse knowing it was 
 not her own, and intending at the 
 time to appropriate it to her own 
 use, but that she did not know who 
 the owner was at the time she took 
 it: — -Held, that as the purse was not 
 lost property, the prisoner was prop- 
 erly convicted of larceny. Peg. v. 
 West, Dears. C. C. 402 ; 3 C. L. R. 
 86 ; 18 Jur. 1031 ; 24 L. J., M. C. 
 4; 6Cox, C. C. 415. 
 
 If a man finds lost proiserty and 
 keeps it, and at the time of finding 
 it has no means of discovering the 
 owner, he is not guilty of larceny, 
 because he afterwards has means 
 of finding him, and nevertheless re- 
 tains the property to his own use. 
 Peg. V. Pixon, Dears. C. C. 580 ; 
 25 L. J., M. C. 39 ; 7 Cox, C. C. 
 35. 
 
 Semble, if a man finds property 
 which has been lost, and appropri- 
 ates it to himself, he is not guilty 
 of larceny for failing to take steps 
 to discover the owner, unless he saw 
 the article drop from the owner, or 
 unless" it has the owner's name upon 
 it, or some cii'cumstances of the 
 sort occurred which afforded the 
 finder an immediate means of know- 
 ing who the owner was at the mo- 
 ment when he picked it up and ex- 
 amined it. lb. 
 
 A finder of lost property is not 
 guilty of larceny in appropriating it 
 to his own use, unless he has a fel- 
 onious intent at the time of the find- 
 ing. Peg. V. Christopher, Bell, C. 
 C. 27 ; 5 Jur., I^f. S. 24 ; 28 L. J., 
 M. C. 35 ; 7 W. R. 60 ; 32 L. T. 
 150 ; 8 Cox, C. C. 91. 
 
 A. was indicted for stealing a 
 banlc-note. The prosecutor had 
 paid for an article purchased at A.'s 
 shop, out of a purse in which were 
 two bank-notes. Next morning he 
 discovered the loss of one of the 
 notes, and applied to A., who told 
 him he knew nothing of the note. 
 He, however, aftei-wards stated he 
 
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LOST PKOPERTY. 
 
 249 
 
 had given gold for it on the day 
 of the loss. The jury, in answer to 
 questions put to them, found — first, 
 that the note was dropped by the 
 prosecutor in the shop, and that A. 
 found it there ; secondly, that he at 
 the time he picked up the note did 
 not know, nor had he reasonable 
 means of knowing, who the owner 
 was ; thirdly, that he afterwards ac- 
 quired knowledge of who the owner 
 was, and after that he converted the 
 note to his own use ; fourthly, 
 that he intended, when he picked 
 up the note in the shop, to take it 
 to his own use, and deprive the own- 
 er of it, whoever that owner might 
 be; and, fifthly, that he believed, 
 at the time he picked up the note, 
 that the owner could be found. A 
 verdict of guilty was thereupon en- 
 tered : — ^Held, that he was properly 
 convicted. Iteg. v. Moore, L. & C. 
 1 : 8 Cox, C. C. 416 ; 7 Jur., N. S. 
 172 ; 30 L. J., M. C. 77 ; 9 W. R. 
 276. 
 
 A prosecutor found a cheque, 
 and, being unable to read, shewed 
 it to the prisoner. The prisoner 
 told him that it was only an old 
 cheque of the Royal British Bank, 
 and kept it. He aftei-wards made 
 excuses for not giving it up to the 
 prosecutor, witholding it from him 
 in the hopes of getting the reward 
 that might be offered for it : — Held, 
 that these facts did not shew such a 
 taking as was necessary to consti- 
 tute larceny. Reg. v. Gardner, L. 
 & C. 243 ; 9 Cox, C. C. 253 ; 8 
 Jur., N. S. 1217 ; 32 L. J., M. C. 
 35 ; 11 W. R. 96 ; 7 L. T., N. S. 
 471. 
 
 The law with regard to the find- 
 er of lost property does not apply to 
 the case of property of a passenger 
 accidentally left in a. railway car- 
 riage, and found there by a servant 
 of the company ; and such servant 
 is guilty of larceny if, instead of tak- 
 ing it to the station or superior offi- 
 cer, he appropriates it to his own 
 use. Reg, v. Pierce, 6 Cox, C. C. 
 117. Digitized by mi 
 
 Fish. Dig.— 19. 
 
 A. was indicted, for stealing iron 
 which he had taken from a canal 
 while the canal was being cleaned. 
 Property found on such occasions in 
 the canal, if identified, was returned 
 by the company to the owner ; other- 
 wiseitwaskeptbyttiecompany. A. 
 was not in the employ of the compa- 
 ny : — Held, that, the property in the 
 iron was rightly laid in the compa- 
 ny. Reg. V. Rowe, Bell, C. C. 93 ; 
 5 Jur., N. S. 274 ; 28 L. J., M. C. 
 28 ; 7 W. R. 236 ; 32 L. T. 339. 
 
 The finder of a lost sovereign in 
 the high road, who, at the time of 
 the finding, had no reasonable means 
 of knowing who the owner was, but 
 who at that time intended to appro- 
 priate it even if the owner should 
 afterwards become known, and to 
 whom the next day the owner was 
 made known, when he refused to 
 give it up, is not guilty of larceny. 
 Reg. V. Glyde, 37 L. J., M. C. 107 ; 
 1 L. R., C. C. 139 ; 16 W. R. 1174; 
 18 L. T., N. S. 613 ; 11 Cox, C. C. 
 103. 
 
 The prisoner's child found six sov- 
 ereigns in the street, which she 
 brought to the prisoner. The lat- 
 ter counted it, and told some by- 
 standers that the child had found a 
 sovereign, and offered to treat them. 
 The prisoner and the child then 
 went down the street to the place 
 where the child had found the mon- 
 ey, and found a half-sovereign and 
 a bag. Two hours afterwards the 
 owner made hue-and-cry in the vi- 
 cinity. On the same evening the 
 prisoner was told that a woman had 
 lost money ; the prisoner told her 
 informant to mind her own business, 
 and gave her half-a-sovereign for 
 herself. The prisoner admitted, on 
 arrest, that she had got the money 
 from the child:— Held, that these 
 facts did not warrant a conviction 
 for larceny, as there was nothing to 
 shew that at the time of the finding 
 the prisoner had reason to think 
 that the owner could be found. 
 Reg. V. Deaves, 11 Cox, C. C. 227 ; 
 ikh&m^- ^- 306. 
 
250 
 
 LARCENY AND RECEIVERS. 
 
 (k) Becency of Possession of Stokn 
 Property. 
 
 The question of what is or is not 
 a recent jDossession of stolen proper- 
 ty, is to be considered with refer- 
 ence to the nature of the article 
 stolen. Therefore, where two ends 
 of woolen cloth jp an unfinished 
 state, consisting of about 20 yards 
 each, are lost, and TWsre in the pos- 
 session of the prisoner two months 
 after their being stolen, and still in 
 the same state, it was held that this 
 was a possession sufficiently recent 
 to call on the prisoner to shew how 
 he came by the property. Rex v. 
 Partridge, 7 C. & P. 551 — Patteson. 
 
 Where a person on whom stolen 
 property is found gives to those who 
 find him in possession of it a reason- 
 able account of how he came by it, 
 it is incumbent on the prosecutor to 
 shew that that account is untrue. 
 Reg. V. Orowhurst, 1 C. & K. 370 
 — Alderson. S. P., Reg. v. Smith, 
 
 2 C. & K. 207— Demnan. 
 AUter, if that account is unreason- 
 able or improbable on the face of it. 
 lb. 
 
 Where a stolen horse was found in 
 the possession of the prisoner six 
 months after it was stolen, and there 
 was no other evidence against him, the 
 judge would not call on him. for his 
 defence, as the possession was not 
 sufficiently recent. Reg. v. Oooper, 
 
 3 C. & K. 318 ; 16 Jur. 750— 
 Maule. S. P., Rex v. Adams, 3 C. 
 & P. 600; Reg. v. Crittenden, 6 
 Jur. 267. 
 
 The prisoner was found coming 
 out of a warehouse, where a large 
 quantity of pepper was kept, with 
 pepper of a similar quality in his 
 possession. He had no right to be 
 in the warehouse, and on being dis- 
 covered said, " I hope you will not 
 be hard with me," and took some 
 pepper out of his pocket and threw 
 it upon the ground. There was no 
 evidence of any pepper having been 
 missed from the bulk : — Held, that 
 there was sufficient evidence to go to 
 the jury of the corpus delicti. Reg. 
 
 V. Burton, Dears. C. C. 282; 18 
 Jur. 157 ; 23 L. J., M. C. 52. 
 
 A. was indicted for stealing and 
 receiving articles of dress. It was 
 proved that the prosecutor's house 
 was broken open, and the articles 
 stolen, on the 2nd November. On 
 the night of the dth November, A. 
 sold them openly at a public-house. 
 He was subsequently apprehended, 
 and then told the constable that C. 
 and D. brought the goods to his 
 house, and that the woman who 
 kept it (Mrs. W.) would say so, and 
 that being on the spree, he sold them 
 and spent the money. C. and D. 
 were thereupon apprehended. C. 
 was convicted of stealing articles 
 taken at the same time from the 
 prosecutor's house, and D. was dis- 
 charged. The constable went to 
 the woman W., and made inquiries 
 as to A.'s statement. No evidence 
 of the result of such inquiry was 
 received. Neither C, D. nor W. 
 was called by the prosecution to 
 contradict A.'s statement, and he 
 was convicted of stealing: — Held, 
 that as there was some evidence upon 
 which the jury might convict, the 
 conviction must be affirmed. Reg. 
 V. Wilson, Dears. & B. C. C. 157 ; '3 
 Jur. N. S. 167; 26 L. J., M. C. 45. 
 
 Where stolen property is traced 
 to the possession of a prisoner, and 
 he at the time gives an account of 
 how he became possessed of it, it is 
 not the duty of the prosecution to dis- 
 prove that account where circum- 
 stances exist in the case which ren- 
 der that account unreasonable, or its 
 truth improbable. In such a case 
 the burthen of calling the parties 
 vouched is cast on the prisoner. 
 Reg. V. Harmer, 2 Cox, C. C. 487 
 —Pollock. 
 
 Recent possession of stolen prop- 
 erty is evidence, either that the per- 
 son in possession stole the property, 
 or that he received it knoisfing it to 
 have been stolen, according to the 
 other circumstances of the case. 
 Reg. V. Langmead, L. & C. 427 ; 9 
 Cox, C. C. 464; 10 L. T., N. S. 350. 
 
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BY HUSBAND AND WIFE. 
 
 251 
 
 Where property of insiguifioant 
 value is traced to the possession of 
 the prisoner fifteen months after the 
 loss, and he gives an account of his 
 possession of it which is not inconsist- 
 ent with the right of the prosecutor 
 to it, he ought not to be called on 
 to account for that possession in a 
 court of justice. Where, however, 
 the prisoner, when lost property is 
 found in his possession, and identi- 
 fied by the prosecutor after so long 
 an interval, claims it as his own 
 property by right of purchase made 
 before the alleged theft, and a contin- 
 uous possession up to the time of dis- 
 covery, he may be called on to ac- 
 count for that possession, notwith- 
 standing the interval which has 
 elapsed between the loss and discov- 
 ery, for then he disputes the identity 
 of the thing found with that loss. 
 Reg. V. Mvans, 2 Cox, C. C 270— 
 Alderson. 
 
 A man was found with dead fowls 
 in his possession, of which he could 
 give no account, and was tracked to 
 a fowl-house where a number of 
 fowls was kept, and on the floor of 
 which were some feathers corres- 
 ponding to the feathers of one of the 
 fowls found on the prisoner, from 
 the neck of which feathers had been 
 removed. The fowl-house, which 
 was closed over night, was fovmd 
 open in the morning. The spot 
 where he was found was 1,200 yards 
 from the fowl-house, and the prose- 
 cutor, not knowing the number of 
 fowls kept, could not swear that he 
 had lost any : — Held, that there was 
 evidence to support a conviction for 
 larceny. Reg. v. Mochford, 17 L. T., 
 N. S. 582; 16 W. R. 375 ; 11 Cox, 
 C. C. 16. See 32 & 33 Vict. c. 99, 
 s. 11. 
 
 (1) Servants taking Masters' Gom 
 
 for feeding Horses. 
 
 By 26 & 27 Vict. c. 103, s. 1, 
 
 " servants taking their masters' corn, 
 
 " pulse, roots, or 'other food contrary 
 
 " to their orders, for the purpose of 
 
 " giving the same to their msajers' 
 
 DigitizeWby 
 
 " horses or other animals, shall not 
 " by reasoii thereof be deemed guilty 
 " of felony, but shall be liable to im- 
 " prisonment, or to pay a pecuniary 
 " penalty." 
 
 Before this Enactment.] — Servants 
 who clandestinely took their masters' 
 oats, with intent to give them to 
 their masters' horses, and without 
 any intent to apply them to their 
 own private benefit, were guilty of 
 larceny, even though they were not 
 answerable at all for the condition 
 of the horses. Reg. v. Privett, 2 C. 
 & K. 114 ; 1 Den. C. C. 193 ; S. P., 
 Reg. V. Handley, Car. & M. 647; 
 Reg. V. Morfit, R. & R. C. C. 307. 
 
 (m) By Husband and Wife. 
 
 Where, on the trial of a man and 
 a woman for larceny, it appears that 
 they addressed each other as husband 
 and wife, and passed and appeared 
 as such, and were so spoken of by 
 the witnesses for the prosecution, it 
 will be for the jury to say whether 
 they are satisfied that they are in 
 fact husband and wife, even though 
 the woman pleaded to the indict- 
 ment, which described her as a single 
 woman. Reg. v. Woodward, 8 C. & 
 P. 561— Patteson. 
 
 In such a case, a female ought 
 not to be indicted as a single woman. 
 lb. 
 
 Stealing, by the wife of a member 
 of a friendly society, money of the 
 society deposited in a box in the hus- 
 band's custody, kept locked by the 
 stewards, is no't larceny. Rex v. 
 WiUis, 1 M. C. C. 375. 
 
 A woman and her husband and 
 P. were indicted jointly for burglary 
 and receiving. The jury found P. 
 guilty of housebreakiog, and the 
 woman and her husband of receiv- 
 ing. Part of the stolen property 
 was found in the house where she 
 and her husband lived together ; and 
 she, in . the absence of her husband, 
 some time after the housebreaking, 
 was seen dealing with part of the 
 stolen things, when she made a state- 
 Microsoft® 
 
252 
 
 LARCENT AND RECEIVERS. 
 
 ment importing a knowledge that 
 they had been stolen. The judge 
 declined to leave it to the jury to 
 find whether she received the stolen 
 property from her husband or in his 
 absence : — Held, that the conviction 
 could not be supported. Reg. v. 
 Wardroper, Bell, C. C. 249 ; 8 Cox, 
 C. C. 284 ; 6 Jur., N. S. 232 ; 29 L. 
 J., M. C. 116 ; 8 W. R. 217 ; 1 L. 
 T., N. S. 416. 
 
 Husband and wife were jointly in- 
 dicted for stealing. The husband was 
 in the employ of the prosecutors, and 
 was seen near the spot when the prop- 
 erty stolen arrived at the prosecutors'. 
 The next day the wife was seen near 
 the spot where her husband was en- 
 gaged on his work. She was at a 
 spot where there was no road, with 
 a bundle concealed, and was follow- 
 ed home. On the following day she 
 pledged the stolen property at two 
 different places. At one of the 
 places where she was not known she 
 pledged in a false name : — Held, that 
 upon this evidence the wife might 
 be convicted of stealing the property. 
 Reg. V. Cohen, 18 L. T., N. S. 489 ; 
 16 W. R. 941; 11 Cox, C. C. 99— 
 C. C. R. 
 
 The prisoner's wife hired a bed- 
 stead at Is. per week, and within a 
 fortnight afterwards the prisoner 
 sold it to a broker, his wife being 
 present at the. sale. Two days after 
 the sale the wife paid Is. for a week's 
 hire, being all that was paid. There 
 was no evidence that the prisoner 
 knew that the bedstead had only 
 been hired : — Held, that a conviction 
 for larceny could not be sustained. 
 Reg. V. Halford, 18 L. T., N. S. 334 ; 
 16 W. R. 731 ; 11 Cox, C. C. 88— 
 C. C. R. 
 
 (n) By Wife's Paramour. 
 
 There is such a imity of interest 
 between husband and wife, that or- 
 dinarily the wife cannot steal the 
 goods of the husband, nor can an in- 
 different person steal the goods of 
 the husband by the delivery of the 
 
 Avife; and if the wife delivers the 
 goods of the husband to an indiffer- 
 ent person, for that person to con-i 
 vert them to his own use, this is no 
 larceny ; but if the person to whom 
 ' the goods are delivered by the wife 
 is an adulterer, it is othei-wise, and 
 an adulterer can be properly con- 
 victed of stealing the husband's 
 goods, though they are delivered to 
 him by the wife. Reg. v. ToUett, 
 Car. & M. 112— Coleridge. 
 
 If no adultery has actually been 
 committed by the parties, but the 
 goods of the husband are removed 
 from the house by the wife and the 
 intended adulterer, with an intent 
 that the wife should elope with him, 
 and live in adultery ■wdth him, this 
 taldngofthe goods is, in point of 
 law, larceny. lb. 
 
 If a wife elopes with an adulterer 
 who takes her clothes with them, 
 the taking is a larceny ; and it is as 
 much a larceny to steal her clothes, 
 which are her husband's property, 
 as it would be to steal anything else 
 that is his property. Ih. 
 
 If a man and the owner's wife 
 jointly take away the husband's 
 goods, it may be larceny in the man, 
 though he was acting jointly with 
 the wife. Rex v. Tolfree, 1 "M. C. 
 C. 243. 
 
 A prisoner cannot be found guilty 
 of stealing goods, if it appears that 
 he could not otherwise get them 
 than by the delivery of the prosecu* 
 tor's wife, in which case it may be 
 presumed that he received them from 
 her. Rex v. Harrison^ 1 Leach, C. 
 C. 47; 2 East, P. C. 659. 
 
 An adulterer cannot be convict- 
 ed of stealing the goods of the 
 husband brought by the wife alone 
 to his lodgings, and placed by 
 her in the room in which the adul- 
 tery was afterwards committed, 
 merely upon evidence of their being 
 found there; but it would be other- 
 wise if the goods could be traced in 
 any way to his personal possession. 
 Reg. V. Rosenberg, 1 C. & K. 233 
 — ^Denman and Parke. 
 
 Digitized by Microsoft® 
 
BY CLERKS OR SERVANTS. 
 
 253 
 
 A. assisting the wife of B. to take 
 B.'s goods, which are afterwards 
 used by them in common, without 
 the consent of B., is evidence to 
 warrant a con\'iction against A. of 
 larceny. Reg. v. Thompson, 1 Den. 
 C. C. 549 ; T. &. M. 294; 14 Jur. 
 488. 
 
 DeUveiy by the wife of her hus- 
 band's goods to her adulterer, he 
 having knowledge that she had tak- 
 en them without her husband's au- 
 thority, is sufficient to support an 
 indictment for larceny against the 
 adulterer. Reg. v. Feather stone, 
 Dears. C. C. 369; 2 C. L. R. 774; 
 18 Jur. 538 ; 23 L. J., M. C. 127 ; 
 6 Cox, C. C. 376. 
 
 If a person merely assists a mar- 
 ried woman, who has not committed, 
 or intended to commit, adultery, in 
 carrying away the goods of her hus- 
 band without the knowledge and 
 consent of the latter, though With 
 intent to deprive the latter of his 
 property, he cannot be convicted of 
 stealing the goods. Reg. v. Avery,' 
 Bell, C. C. 150; 5 Jur., K S. 577; 
 28 L. J., M. C. 185 ; 7 W. R. 431 ; 
 32L. T. 138; 8 Cox, C. C. 184. 
 
 B. watching his opportunity when 
 the prosecutor was absent, took 
 away the prosecutor's wife, and 
 with her several boxes filled with 
 the prosecutor's property. B. and 
 the wife were found living together 
 in adultery. The property was all 
 in their lodgings: — Held, that he 
 was indictable for stealing the prop- 
 erty of the prosecutor, as he took 
 the property under such circum- 
 stances that the assent of the hus- 
 band to the taking could not be 
 presumed. Reg. v. Berry, Bell, C. 
 C. 95; 5 Jur., N. S. 228; 28 L. J., 
 M. C. 70 ; 7 W. R. 240 ; 32 L. T. 
 329. 
 
 The prisoner, who lodged in the 
 house of the prosecutor, agreed with 
 his wife that they should go away, 
 and hve together in adultery. The 
 prisoner left the house, and was fol- 
 lowed by the wife of the prosecutor. 
 
 Digitized by Ivlicrosoft® 
 
 They were afterwards overtaken on 
 the road in company together, the 
 prisoner carrying a bandbox con- 
 taining the wife's wearing apparel. 
 He was convicted upon an indict- 
 ment for stealing the property so 
 found upon him, the property being 
 laid as that of the husband : — Held, 
 that the conviction could not be sus- 
 tained. Reg. V. Fitch, Dears. & B. 
 C. C. 187 ; 3 Jur., N". S. 524; 26 L. 
 J., M. C. 169 ; 7 Cox, C. C. 269. 
 
 Where a man assists a wife in 
 carrying oif what he knows to be 
 her husband's property, and goes 
 away with her with the intention 
 of committing adultery, he is guilty 
 of larceny; and the facts that he 
 was in the husband's service, and 
 acted under the wife's directions in 
 removing the property, afford no 
 answer to the charge. Reg. v. 
 Mutters, L. &. C. 511 : 10 Cox, C. 
 C. 50; 34 L. J., M. C.54; 13 W. 
 R.326; IIL.T., N". S. 642. 
 
 A wife took her husband's goods 
 from Netting Hill , and she was found 
 committing adultery with the prison- 
 er at Liverpool, the husband's goods 
 being then in the prisoner's posses- 
 sion. There was no evidence that 
 they were under his control at any 
 place within the jurisdiction of the 
 Central Criminal Court : — Held, 
 that that court had no jurisdiction 
 to try the prisoner for the offence. 
 Reg. V. Prince, 11 Cox, C. C. 14$ 
 — Russell Gurney. 
 
 (o) By Clerics or Servants. 
 By 24 & 25 Vict. c. 96, s. 67, 
 whosever, being a clerk or serv- 
 ant, or being employed for the 
 purpose or in the capacity of a 
 clerk or servant, shall steal any 
 chattel, money, or valuable secur- 
 ity belonging to or in the posses- 
 sion or power of his master or em- 
 ployer, shall be guilty of felony, 
 and being convicted thereof, shall 
 be liable, at the discretion of the 
 court, to be kept in penal servi- 
 tude for any term not exceeding 
 
254 
 
 LARCENY AND RECEIVERS. 
 
 " fourteen years and not less than 
 " five years (27 & 28 Vict. c. 47), 
 " or to he imprisoned for any term 
 " not exceeding two years, with or 
 " without hard labour, and with or 
 " without solitary confinement, and, 
 " if a male under the age of sixteen 
 " years, with or without whipping." 
 (Former provision, 7 & 8 Geo. 4, c. 
 29, s. 46.) 
 
 The prisoner was occasionally 
 employed as a clerk to the prosecut- 
 ors, and having received from them 
 a cheque on their bankers, payable 
 to a creditor, for the purpose of 
 giving it to the creditor, appro- 
 priated it to his own use : — Held, 
 a larceny of the cheque. Hex v. 
 Metcalf, 1 M. C. C. 433. 
 
 It is larceny in the servant of 
 the drawer of a cheque on bankers 
 to whom it is given to deliver to a 
 third person, to appropriate the val- 
 ue to his own use. Heff. v. Heath, 
 2 M. C. C. 33. 
 
 Where a servant by a false pre- 
 tence induces his master to give him 
 a cheque as agent of a creditor of 
 his master with a view of its being 
 handed over to that creditor, and 
 the servant appropriates the cheque 
 to his own use, he cannot be indict- 
 ed for stealing it. Heg. v. Essex, 
 Dears. & B. C. C. 371 ; 4 Jur., N. 
 S. 16; 27 L. J., M. C. 20; 7 Cox, 
 C. C. 384. 
 
 If a servant takes his master's 
 property, and hands it over to an- 
 other as a gift, it is as much a fel- 
 ony as if he takes it to a pawnbrok- 
 er and pledges it. Reg. v. White, 
 9 C. & P. 344^Gurney and Ers- 
 Idne. 
 
 It is larceny for a person hired 
 for the special purpose of driving 
 sheep to a fair to convert them to 
 his own use, he having the inten- 
 tion so to do at the time of receiv- 
 ing them from the owner. Eex v. 
 Stoch, 1 M. C. C. 87. 
 
 If the owner of goods employs a 
 person, not in his service, to take 
 them to a particular place, shews 
 
 them to a customer, and brings 
 them back, without authorizing him 
 to sell them to or leave them with 
 the customer, and he, instead of 
 taking the goods to the specific 
 place, sells them for his own advan- 
 tage, he will be guilty of larceny, 
 inasmuch as the felonious intent 
 came upon him at a time when he 
 had the custody only, and not the 
 possession, of the goods. Reg. v. 
 Harvey, 9 C. & P. 353— Alderson. 
 
 The driver of a glass-coach hired 
 for the day is not the servant of the 
 party hiring it, so as to bring him 
 within 7 & 8 Geo. 4, c. 29, s. 46. 
 Rex V. Haydon, 7 C. & P. 445— 
 Patteson and Gumey. 
 
 If a servant receives from his 
 master goods to sell, and appro- 
 priates them to his own use, he is 
 not guilty of embezzlement but lar- 
 ceny. Reg. V. Hawhins, 4 Cox, C. 
 C. 224. 
 
 The prisoner was employed by 
 the prosecutor to make up canvas 
 bags at his (the prisoner's) own house. 
 The canvas was cut out at the shop 
 of the prosecutor and taken away 
 by the prisoner. A portion of it 
 was duly worked up and returned, 
 the remainder was converted by 
 him to his own use : — Held, that 
 he could not be convicted of lar- 
 ceny. — Reg. V. Saward, 5 Cox, C. 
 C. 295. 
 
 A. had agreed to buy straw of 
 B., and sent his servant C. to fetch 
 it ; C. did so, and put down the 
 whole quantity of straw at the door 
 of A.'s stable, which was in a court- 
 yard of A., and then went to A. 
 and asked him to send some one 
 with the key of the hay-loft, which 
 was over the stable, which A. did, 
 and C. put part of the straw into 
 the hay-loft, and carried the rest 
 away to a public-house, and sold it : 
 — Held, that this carrying away of 
 the straw by C, if done with a 
 felonious intent, was a larceny, and 
 not an embezzlement, as the deliv- 
 ery of the straw to A. was complete 
 
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 255 
 
 ■when it was put down at the stable- 
 door. Meg. V. Sayward, 1 C. & 
 K. 518— Tindal. 
 
 Where a servant received money 
 from his master in order to pay the 
 wages of work-people therewith, 
 and in the book in which the ac- 
 count of the monies so paid was 
 kept by the master entries were 
 found charging the master with 
 more money than the servant had 
 actually disbursed; but there was 
 no proof that he had ever deliv- 
 ered this account to his master: 
 — Held, that this did not amount 
 to larceny in the servant. Reg. v. 
 Butler, 2 C. & K. 340— Wightman. 
 
 On the trial of an indictment for 
 larceny as servant, it appeared that 
 the prisoner lived, in the house of 
 the prosecutor, and acted as nurse 
 to his sick daughter, the prisoner 
 having board and lodging and occa- 
 sional presents for her services, but 
 no wages. While the prisoner was 
 so residing, the prosecutor's wife 
 gave the prisoner money to pay a 
 coal bill, which money the prisoner 
 kept, and brought back a forged 
 receipt to the coal bill : — ^Held, that 
 the prisoner was not the servant of 
 the jirosecutor, but that this was a 
 larceny of the money. Reg. v. 
 Smith, 1 C. & K. 423— Coleridge. 
 
 A. employed B. to take his barge 
 from S. to E., and paid him his 
 wages in advance, and gave him a 
 separate sum of three sovereigns to 
 pay the tonnage dues. B. took the 
 barge sixteen miles, and paid ton- 
 nage dues to an amount rather un- 
 der 21., and appropriated the re- 
 maining sovereign to his own use : 
 — Held, a larceny. Reg. v. Goode, 
 Car. & M. 582 ; S. P., Reg. v. Bea- 
 man, Car. & M. 595— Patteson. 
 
 The prisoner, who was not other- 
 wise in the prosecutor's service, was 
 employed by the prosecutor to drive 
 six pigs from C. to U. On the way 
 he left one at Mr. M.'s stating that 
 it was tired, and he told the prose- 
 cutor that he had done so. The 
 prosecutor told the prisoner to go 
 
 and ask Mr. M. to keep the pig for 
 him. The prisoner went to Mr. 
 M.'s and sold the pig to Mr. M.:— 
 Held, no larceny. Reg. v. Jones, 
 Car. & M. 611— Cresswell. 
 
 The prisoner was a servant in the 
 employment of grocers who were in 
 the habit of purchasing kitchen- 
 stuff. It was his duty to receive 
 and weigh it, and, if the chief clerk 
 was in the counting-house, to give 
 the seller a ticket specifying the 
 weight and price of the article, and 
 the name of the seller, which ticket 
 was signed with the initials of the 
 prisoner. The seller, on taking this 
 ticket to the chief clerk, received 
 the price of the kitchen-stuff. In 
 the absence of the chief clerk the 
 prisoner had himself authority to 
 .pay the seller, and afterwards, on 
 producing the ticket to the chief 
 clerk, was repaid. The prisoner had, 
 on the day mentioned in the indict- 
 ment, presented a ticket to the chief 
 clerk, purporting to contain all the 
 usual specifications, and marked 
 with the prisoner's initials, and de- 
 manded the sum of 2«. 3d, which 
 he alleged that he had paid for 
 kitchen-stuff. He received the mon- 
 ey and appropriated it to his own 
 use, and it was afterwards discov- 
 ered that no such persqn as was 
 described in the ticket had ever 
 sold any such article to the prose- 
 cutors, but that the ticket was 
 fraudulently made out and pre- 
 sented by the prisoner : — Held, a 
 case of false pretences, and that an 
 indictment for larceny could not be 
 sustained. Reg. v. Barnes, 2 Den. 
 C. C. 59 ; T. & M. 387 ; 14 Jur. 
 1123; 20 L. J., M. C. 34. 
 
 The prisoner was sent with his 
 master's cart for some coals. The 
 coals were delivered to the prisoner 
 and deposited in the cart, their price 
 being entered to the master's ac- 
 count. On the road home the pris- 
 oner disposed of a portion of the 
 coals : — Held, that this was larceny 
 of the coals and not embezzlement, 
 the prisoner having determined his 
 
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256 
 
 LARCENY AND RECEIVERS. 
 
 exclusive possession of tKe coals 
 ■when they were deposited in the 
 cart, and the possession from that 
 time being in the master. Reg. v. 
 Reed, Dears. C. C. 257 ; 2 C. L. R. 
 607 ; 18 Jur. 67 ; 23 L. J., M. C. 
 25. 
 
 G. was indicted for larceny. The 
 evidence shewed that he was the 
 prosecutor's servant ; that it was 
 his duty to receive and pay monies 
 for the prosecutor, and make entries 
 of such receipts and payments in a 
 book which was examined by the 
 prosecutor from time to time ; that 
 the prisoner on one occasion shewed 
 a balance in his favour of 11., by 
 taking credit for payments falsely 
 entered in' the book as having been 
 made by him, when in fact they 
 had not been made by him, and 
 that the prisoner received from his 
 master the sum of 11., as a balance 
 due to him. He was convicted : — 
 Held, that the conviction was 
 wrong. Reg. v. Green, Dears. C. 
 C. 323 ; 2 C. L. R. 603 ; 18 Jur. 
 158 ; 6 Cox, C. C. 296. 
 
 Where a person gave his servant 
 a 51. note to get changed, and he 
 got the note changed, and made off 
 with the change: — Held, to be no 
 larceny, but an embezzlement. Rex 
 V. SvUens, Car. C. L. 319 ; 1 M. C. 
 C. 129. 
 
 A shopman was authorized to sell 
 his master's goods at the price 
 marked upon them, but at nothing 
 less. He sold a pair of trousers at 
 a lower price than that marked, and 
 embezzled the money : — Held, not 
 to be a larceny of the trousers. 
 Reg. V. JBrackett, 4 Cox, C. C. 274 
 — Wightman. 
 
 A miller's foreman, employed to 
 sell goods and receive the money, 
 sold some to a customer, who paid 
 him for them. He did not enter 
 the sale in his books, or account for 
 the price, according to the usual 
 course of business, bi:S concealed 
 the whole transaction, and appropri- 
 ated the money :— Held, that there 
 being an actual binding sale as be- 
 
 tween the buyer and the employer, 
 he could not be convicted of steal- 
 ing the goods, although he was 
 guilty of embezzling the j)rice. Meg. 
 V. Betts, Bell, C. C. 90 ; 5 Jur., N. 
 S. 274 ; 28 L. J., M. C. 69 ; 7 W. 
 R. 239 ; 32 L. T. 339 ; 8 Cox, C. 
 C. 140. 
 
 The prisoner was tried upon an in- 
 dictment which charged, that whilst 
 the servant of A. he stole money 
 belonging to A. The evidence was, 
 that the prisoner was the servant 
 of B., and that the money belonged 
 to B., but was in the possession of 
 A. as the agent of B. He was ac- 
 cordingly convicted of simple lar- 
 ceny : — Held, that the conviction 
 was right. Reg. v. Jennings, Dears. 
 
 6 B. C. C. 447 ; 4 Jur., N. S. 146 : 
 
 7 Cox, C. C. 397. 
 
 The prisoner was employed to 
 conduct an office in connection with 
 a branch bank. His salary included 
 his services and the providing an 
 office, which was in his own house, 
 where he carried on another busi- 
 ness. The office was fitted up at 
 the expense of the bank, and in it 
 there was an iron safe, the property 
 of the bank, into which it was his 
 duty, when night came, to put any 
 money received during the day 
 which had not been required. The 
 manager of the branch bank kept a 
 duplicate key of this safe. It was 
 the prisoner's duty to receive money 
 from customers, to be put to their 
 accounts with the branch bank, and 
 to pay cheques. He furnished ac- 
 counts to the manager, and it was 
 his duty to pay over weekly to the 
 manager the excess not required at 
 the office. He also received monies 
 from the branch as required, which 
 were entered in his weekly accounts. 
 In September, 1855, his accounts 
 were audited, and his cash found 
 con-ect ; and from that time up to 
 September, 1857, he continued to 
 furnish weekly accounts which were 
 correct in their statements of re- 
 ceipts and payments, but no exam- 
 ination of the balances appearing 
 
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BY CLERKS OR SERVANTS. 
 
 257 
 
 from those accotmts to be in his 
 hands took place. At the latter 
 date, however, he was about 3,000^. 
 short in his accounts, and admitted 
 that he had taken t*hat amount. 
 The jury foimd the prisoner guilty 
 of larceny as a clerk, in having 
 stolen some money received from 
 customers, which before such steal- 
 ing had been placed in the safe, and 
 made the subject of a weekly ac- 
 count : — Held, that it was not nec- 
 essary that the jm-y should find any 
 specific amovmt to have been stolen 
 on any particular day, and that 
 there was evidence to go to the 
 j ury of larceny. Reg. v. Wright, 
 Dears. & B. C. C. 431 ; 4 Jur., N. 
 S. 313 ; 27 L. J., M. C. 65 ; 7 Cox, 
 C. C. 413. 
 
 It was the duty of a clerk to the 
 prosecutors to ascertain daily the 
 amount of dock and town dues pay- 
 able by the prosecutors on the ex- 
 portation of their goods, and, hav- 
 ing received the money from the 
 prosecutors' cash-keeper, to pay it 
 over to those who were entitled to 
 it; the clerk falsely represented 
 that a sum of 3Z. 10«. Ad. was due 
 on a certain day, whereas, in truth, 
 a sum of \l. 3s. only was due, and, 
 having obtained the larger sum 
 from the cash-keeper, converted the 
 difference to his own use : — Held, 
 that he was not guUty of larceny, 
 but might have been convicted of 
 obtaining money by false pretences. 
 JReg. V. Thompson, L. & C. 233 ; 
 9 Cox, C. C. 222 ; 32 L. J., M. C. 
 57; 8 Jur., N. S. 1162; 11 W. R. 
 41 ; 7 L. T., N". S. 393. 
 
 A servant's duty was to give out 
 materials to be wrought up, and 
 pay the workmen when the work 
 was finished, and for this pvtrpose 
 he received cash from his masters, 
 and at the end of each week he ac- 
 counted with them for sums so re- 
 ceived and paid. The cash was 
 kept by him, but he was not author- 
 ized to apply the money in any 
 other way. He paid C. 13s., and 
 
 fraudulently charged his employers 
 as having paid 14s. 8c?.,' and appro- 
 priated the Is. %d. to his own use : 
 — Held, to amount to larceny. Reg. 
 V. Low, 10 Cox, C. C. 168 ; 14 W. 
 R. 286; 13 L. T., N". S. 642— C. 
 C. R. 
 
 A person employed as a distraining 
 broker, if engaged in the service of 
 the prosecutor only, and paid a salary 
 by him, is a servant within 24 & 25 
 Vict. c. 96, s. 67. Reg. v. Flana- 
 gan, 10 Cox, C. C. 561— Russell 
 Gurney. 
 
 A man was indicted for larceny 
 as a servant. He was groom in the 
 service of the prosecutor, and was 
 supplied by his master with money 
 to pay for the keep of the stallion 
 of which he had the charge. In 
 the course of his employment he 
 stated that he had paid three sums 
 of 7s. 2d., 7s. id. and 7s. 6d, to 
 one Thomas Payne, which was un- 
 true, and appropriated these sums 
 to his own use : — Held, that it was 
 not larceny. Reg. v. Dartnell, 20 
 L. T., K S. 1020— Byles. 
 
 Money was given to the jprisoner 
 for the purpose of paying turnpike 
 tolls at two gates on his journey. 
 Twelve days afterwards, on being 
 asked if he had paid the toll at one 
 of the gates, the prisoner said he 
 had not — that he had gone by a 
 parish road which only crossed the 
 road at the gate, and so no toll was 
 payable there, and that he had spent 
 the money on beer for himself and 
 his mates. The prisoner having 
 been convicted of larceny of the 
 money, but it not appearing on a 
 case reserved as to whether the 
 facts proved a larceny, that the 
 question of felonious intention had 
 been distinctly left to the jury, the 
 court quashed the conviction. Reg. 
 V. Deering, 20 L. T., N. S. 680; 
 17 W. R. 807 ; 11 Cox, C. C. 298 
 — C. C. R. 
 
 The prisoner lived with the pros- 
 ecutor as his wife, and was author- 
 ized by him to draw and sign 
 
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258 
 
 LARCENY AND RECEIVERS. 
 
 cheques and bills in Ms name, lie 
 being blind and unable to do this 
 himSlf. He entrusted her with a 
 large sum of money to pay into the 
 bank, which she did not do, but 
 appropriated it to her own use: — 
 Held, that the question, whether 
 she was a servant to the prosecutor, 
 was one for the jury. Reg. v. 
 Warren, 10 Cox, C. C. 359— Cham- 
 bers, C. S. 
 
 A., carrying on business on his 
 own account, entered into an en- 
 gagement with B. to sell goods for 
 him, and for certain purposes to be 
 his servant. B. entrusted A. with 
 certain goods to dispose of in a par- 
 ticular way. A. converted them to 
 Ms own use : — ^Held, that it was a 
 question for the jury to say wheth- 
 er, when A. received the goods, he 
 had the intention of misappropri- 
 ating them. Meg. v. WaUer, 10 
 Cox, C. C. 360— Russell Gumey, 
 Recorder. 
 
 . (p) By Fraudulent Bailees. 
 
 Who are.]—Bj 24 & 25 Yict. c. 
 96, s. 3, " whosover, being a bailee 
 " of any chattel, money, or valua- 
 "ble security, shall fraudulently 
 " take or convert the same to his 
 " own use, or the use of any person 
 " other than the owner thereof, al- 
 " though he shall not break bulk or 
 " otherwise determine the bailment, 
 " shall be guilty of larceny, and 
 " may be convicted thereof upon 
 " an indictment for larceny ; but 
 "this section shall not extend to 
 " any offence punishable on sum- 
 " mary conviction." {Former pro- 
 vision, 20 & 21 Vict. c. 54, s. 4.) 
 
 A bailee charged with fraudu- 
 lently converting bailed property 
 under 20 & 21 Vict. c. 54, s. 4, was 
 indicted in the ordinary form as for 
 larceny, with a conclusion contra 
 forman : — Held, good. Beg. v. 
 Miigh, 7 Cox, C. C. 403— Wight- 
 man. 
 
 A bailment under this section 
 has reference to something depos- 
 
 ited with another to be returned in 
 specie, and does not apply to the 
 case of a treasurer of a money club, 
 who is un(ier no obligation to re- 
 turn to the members the specific 
 coins intrusted to him. Beg. v. 
 Bassall, L. & C. 58 ; 8 Cox, C. C. 
 491 ; 7 Jur., N. S. 1064; 30 L. J., 
 M. C. 175 ; 9 W. R. 708; 4 L. T., 
 N. S. 561 ; jS. p., Beg. v. GarreU, 
 8 Cox, C. C. 368 ; 2 F. & F. 14— 
 Willes. 
 
 A person who receives money on 
 behalf of another, does not thereby 
 become a • bailee of the money. 
 Beg. V. Soare, IF. & F. 647— 
 Wightman. 
 
 B. was charged in a first count 
 with larceny as a bailee. In a sec- 
 ond count with larceny : B. was a 
 married woman, living with her 
 husband, and at the request of a 
 lodger in her husband's house took 
 charge of his box, containing mon- 
 ey. She afterwards fraudulently 
 stole the money, and converted it 
 to her own use. The husband 
 knew notMng whatever of the 
 transaction : — ^Held, that either she 
 was a bailee, and guilty under the 
 first count ; or, if not a bailee, she 
 was guilty of larceny under the 
 second count. Beg. v. Bobson, L. 
 & C. 93 ; 9 Cox, C. C. 29 ; 8 Jur., 
 N. S. 64; 31 L. J., M. C. 22; 10 
 W. R. 61 ; 5 L. T., N. S. 402. 
 
 A bailment under the 21 & 22 
 Vict. c. 54, s. 4, does not neces- 
 sarily mean a bailment by contract, 
 but a bailment by licence is suffi- 
 cient, lb. — Martin. 
 
 A., being somewhat tipsy, lay on 
 the ground, partly asleep, and 
 wMle in that state saw the prisoner 
 take his watch out of his pocket, 
 which he took no steps to prevent, 
 believing that the prisoner, with 
 whom he had been acquainted for 
 some time, was acting solely from 
 friendly motives: — Held, that this 
 evidence would not support a 
 charge of larceny at common law, 
 but disclosed a sufficient bailment 
 
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BY FRAUDULENT BAILEES. 
 
 259 
 
 to bring the case within the above 
 enactment. Reg. v. Reeves, 5 Jur., 
 N. S. 716— Crowder. 
 
 A., who was a trustee of a friend- 
 ly society, was appointed by a reso- 
 lution of the society to receive 
 money from the treasurer, and 
 carry it to the bank. He received 
 the money from the treasurer's clerk, 
 but instead of taking it to the bank, 
 he applied it to his own purposes. 
 He was indicted . for stealing, as 
 bailee of the money of the treas- 
 urer, and also for a common law 
 larceny, the money being laid as 
 that of the treasurer. The 18 & 
 19 Vict. c. 63, s. 18, vests the prop- 
 erty of friendly societies in the 
 trustees, and directs that in all 
 indictments the property shall be 
 laid in their names : — Held, that A. 
 could not be convicted either as a 
 bailee or of a common law larceny. 
 Reg. V. Loose, Bell, C. C. 259 ; 29 
 L. J., M. C. 132; 8 Cox, C. C. 
 302 ; 6 Jur., K S. 513 ; 8 W. R. 
 422 ; 2 L. T., N. S. 254. 
 
 Indictment charged the prisoner 
 with obtaining 2U. 5s., the monies 
 of H., by false pretences. Accord- 
 ing to the prosecutor's evidence, he 
 was induced to part with the mon- 
 ey on the prisoner's statement that 
 he was to pay 135?. for a pair of 
 carriage horses. No such averment 
 was contained in the indictment. 
 It was urged that the prisoner 
 might be convicted of larceny as a 
 bailee ; but the money having been 
 obtained by fraud, and the prose- 
 cutor having parted with all con- 
 trol as well over it as with the pos- 
 session :— Held, that there was no 
 bailment, and that he could not be 
 convicted. Reg. v. ITunt, 8 Cox, 
 C. C. 495 — Russell Gurney, Re- 
 corder. 
 
 The prosecutor gave the prisoner 
 money to buy half a ton of coals for 
 him . He bought the coals, and took 
 a receipt in his own name, and used 
 his own horse and cart to fetch them, 
 but on the way home he appropriated 
 a portion of the coals to his own use 
 
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 and afterwards pretended to the pro- 
 secutor that he had delivered to him 
 the full quantity : — ^Held, that even 
 if it was necessary to shew a specific 
 appropriation of the coals to the 
 prosecutor, there was sufficient evi- 
 dence of such appropriation, and 
 that the prisoner was rightly con- 
 victed of larceny as a bailee. Reg. 
 V. Bunlcall, L. & C. 371 ; 9 Cox, C. 
 C. 419 ; 10 Jur.,N. S. 216 ; 33 L. 
 J., M.C. 75; 12 W. R. 414; 9 L. 
 T., N. S. 778. 
 
 To sustain a charge of larceny by 
 a bailee it is necessary to prove some 
 act of conversion inconsistent with 
 the purposes of the bailment. Reg. 
 V. Jackson, 9 Cox, C. C. 505— Mar- 
 tin. 
 
 A carrier who, receiving money 
 to procure goods, obtained and duly 
 delivered the goods, but fraudulent- 
 ly retained the money, may be con- 
 victed of larceny as a bailee. Reg. 
 V. Wells, 1 F. & F. 109— Erie. . 
 
 A carrier employed by the prose- 
 cutor to deliver in his (the prisoner's) 
 cart a boat's cargo of coals to per- 
 sons named in a list, to whom only 
 he was authorized to deliver them, 
 and, having fraudulently sold some 
 of the coals, and appropriated the 
 proceeds, is properly convicted of 
 larceny as a bailee. Reg. v. Davies, 
 14 W. R. 679 ; 14 L. T., N. S. 491 
 — C. C. R. 
 
 Husband and TF?/%.]— A married 
 woman, at the request of A., took 
 charge of his box containing money, 
 and afterwards fraudulently stole 
 the money. The husband had no- 
 thing to do with any part of the 
 matter :— Held, that she was guilty 
 either of fraud as a bailee or of a lar- 
 ceny. Reg. V. Robson, 31 L. J., 
 M. C. 22 ; L. & C. 93 ; 9 Cox, C. 
 C. 29; 8 Jur., K S. 64; 10 W. R. 
 61 ; 5 L. T., N. S. 402. 
 
 Where husband and wife were 
 jointlymdiated for larceny,as bailees, 
 and it was proved that they took 
 charge of the property, but the wife 
 alone disposed of it aftei-wards: — 
 
260 
 
 LARCENY AND RECEIVERS. 
 
 Held, that neither could be convict- 
 ed ; the wife, because she could not 
 be a bailee ; the husband, because 
 he was not proved to have taken 
 part in the conversion. Reg. v. 
 Denmour, 8 Cox, C. C. 440— Mar- 
 tin. 
 
 (q) JBy parties in concert. 
 
 Where two planned to rob the 
 prosecutrix of some coats, and one 
 got her to go with him that he 
 might get some money to buy them 
 of her, and she left the coats with 
 the other, who immediately ab- 
 sconded with them: — Held, that 
 the receipt of the one amounted to 
 a felonious taking of the coats by 
 both. Hex V. County, 2 Russ. C. 
 & M. 230, 329— Bayley. 
 
 Where the evidence against two, 
 indicted for stealing oats, was that 
 one of them took the oats from the 
 prosecutor's sacks, and placed them 
 under a cart, and the other came up 
 a few minutes after, and said, " It is 
 all right," and put the oats in a 
 cart, and took them to his house ; 
 on an objection that there was no 
 evidence to connect the latter with 
 the original taking : — Held, that the 
 evidence shewed one transaction in 
 which both concurred. Heg. v. JffeZ- 
 ly, 2 Cox, C. C. 171— Maule. 
 
 J. had employed M. to load sacks 
 of oats, the property of J., from a 
 vessel in the trams of K., who was 
 to carry them on the trams to the 
 warehouse of K. By previous con- 
 cert between M. and K., oats were 
 • taken by M. from two of the sacks 
 and put into a nose-bag in the ab- 
 sence of K., and hidden under a tram. 
 K. returned in a few minutes, and 
 took the nose-bag, and its contents, 
 from under the tram, and took them 
 away, M. being then within three 
 or four yards of him : — Held, that 
 both were principals in the larceny, 
 and that K. was not a receiver ; 
 and that, as it was all t)ne transac- 
 tion, and both had concurred in it, 
 and both had been present at some 
 part of the transaction, both could 
 
 be convicted as principals in the 
 larceny. Meg. v. WCarthy, 2 C. 
 & K. 379— Maule. 
 
 2. By Persons in the Queen's Serv- 
 ice, or by the Police. 
 
 By 24 & 25 Vict. c. 96, s. 69, 
 " whosoever being employed in the 
 " public service of her Majesty, or 
 " being a constable or other per- 
 " son employed in the police of any 
 " county, city, -borough, district or 
 " place whatsoever, shall steal any 
 " chattel, money or valuable secur- 
 " ity belonging to or in the posses- 
 " sion or power of her Majesty, or 
 " intrusted to or received or taken 
 " into possession by him by virtue 
 " of his employment, shall be guilty 
 " of felony, and, being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for any teim not 
 " exceeding fourteen years, and not 
 " less than five years (27 & 28 Vict. 
 " c. 47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment." 
 
 An indictment, framed upon 2 & 
 3 Will. 4, c. 4, s. 1, alleged that A., 
 being employed in the public service, 
 and intrusted, by virtue of such em- 
 ployment with the receipt of money 
 the property of the Queen, fraudu- 
 lently applied to his own use 5,000?. 
 so received, and feloniously stole the 
 same. It was proved that he was 
 an officer of inland revenue, and re- 
 ceived certain taxes ; that it was 
 his duty to make returns to inspect- 
 ors, and that these returns, when 
 rendered, shewed a much larger 
 balance in his hands than he was 
 allowed to retain. At last his ac- 
 counts were examined, and a state- 
 ment extracted from them was pro- 
 duced to Mm, shewing a balance in 
 his hands of 5,214/!. and a fraction, 
 which he admitted to be correct. 
 He was then asked if he was pre- 
 pared to hand over that balance, or 
 any part of it, and he said he was 
 
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BY POST-OFFICE SEEVANTS. 
 
 261 
 
 not. He was then reminded that 
 there was a balance of 3001. against 
 him from the previous Monday, 
 which was a receipt day at T. A. 
 then took out a sum of money less 
 than the 300Z., and, on being asked 
 what lie had done with the rest, said 
 he had spent it in an unfortunate 
 speculation : — Held, that the evi- 
 dence in respect of the 300?. was 
 sufficient to sustain a conviction. 
 Heff. v. Moah, Dear^. 0. C. 626 ; 2 
 Jur., N. S. 213 ; 25 L./., M. C. 66. 
 
 -Sy 
 
 Post -Office 
 others. 
 
 Servants and 
 
 (7 Will 4 cfe 1 Vidt. c. 36, s. 26.) 
 
 What amounts to a Stealing.] — 
 Fraudulently obtaining the mail 
 bags by deUvery from one in the 
 post-office to the prisoner, is a steal- 
 ing out of the post-office. Mex v. 
 Pearce, 2 East, P. C. 603. 
 
 The horse mail bags, being left 
 by the mail lider after he had tak- 
 en possession of them for a tempo- 
 rary purpose for two minutes, were 
 stolen during his absence : — Held, 
 within the 52 Geo. 3, c. 143, s. 3. 
 Mex V. MoMnson, 2 Stark, 485. 
 
 Servants.] — S. delivered two 51. 
 notes to D., the wife of the post- 
 master of C, at which post-office 
 money orders were not granted, 
 and asked her to send them by G., 
 the letter-carrier, from C. to W., in 
 order that he might get two bl. 
 money orders for them at the W. 
 post-office. D. gave these instruc- 
 tions to G., and put the notes, by 
 his desire, into his bag. G. after- 
 wards took the notes out of the 
 bag, and pretended, when he got to 
 the W. post-office, that he had lost 
 them. It was found by the jury 
 that G. had no intention to steal 
 the notes when they were given to 
 him by D.:— Held, that this taking 
 of the notes by G. was not a lar- 
 ceny, the notes not being in his 
 possession in the course of his duty 
 as a post-office servant. i?e^. v. 
 
 Digitized by Microsoft® 
 
 2 C. & K. 395 ; 1 Den. C. 
 C. 215. 
 
 S., post-mistress of G., received 
 from a letter unsealed, but ad- 
 dressed to B., and with it 11. for a 
 post-office order, 3d. for the pound- 
 age on the order. Id. for the post- 
 age, and \d. for the person who 
 got the order. S. gave the letter, 
 unsealed, and the money, to the 
 prisoner, who was the letter-carrier 
 from G. to L., telling him to get 
 the order at L. and enclose it in 
 the letter, and post the letter at L. 
 The prisoner destroyed the letter, 
 never procured the order, and kept 
 the money : — Held, that he was in- 
 dictable for stealing, embezzling and 
 destroying a post letter, he being at 
 the time in the employ of the post- 
 office. Reg. V. Bickerstaff, 2 C. & 
 K. 761— Cresswell. 
 
 A person employed in the post- 
 office committed a mistake in the 
 sorting of two letters containing 
 money, and he threw the letters 
 unopened, and the money, down a 
 water-closet, in order to avoid a 
 penalty attached to such mistakes : 
 — ^Held, that there was a larceny of 
 the letters and money, and also a 
 secreting of the letters. Reg. v. 
 Wynn, 2 C. & K. 859 ; 1 Den. C. 
 C. 365 ; T. & M. 32 ; 3 New Sess. 
 Cas. 414; 13 Jur. 107; 18 L. J., 
 M. C. 51 ; 3 Cox, C. C. 271. 
 
 If a person, while engaged in 
 gratuitously assisting a postmaster, 
 at his request, in sorting the letters, 
 steals one of them, he is liable to 
 the severer penalties imposed by 7 
 Will. 4 & I Vict. c. 36, s. 26, as a 
 person employed under the post- 
 office. Reg. V. Reason, 2 C. L. R. 
 120; 23L. J.,M. C. 11; 6 Cox, C. 
 C. C. 227; Dears. C. C. 226; 17 
 Jur. 1014. 
 
 A. was indicted for stealing a 
 post letter containing money, he 
 being a sub-sorter at the general 
 post-office, j^n inspector of the 
 post-office had put some marked 
 money into a letter, which was 
 then sealed, and stamped with the 
 
262 
 
 LARCENY AND RECEIVERS. 
 
 tisual postage stamp. It was ad- 
 dressed to Mr. H., and delivered in 
 at the window of the post-office to 
 another inspector, who handed it 
 to a third. This last locked it up 
 for the night, and on the following 
 morning gave it to a sorter, who, 
 according to his instructions, secret- 
 ly placed it among other letters, 
 which A. in due course would have 
 to sort. He .opened and secreted 
 the letter, abstracting the money, 
 which was found upon him. It 
 was no part of the ordinary duty 
 of the inspector to receive letters 
 at the window, but the whole 
 scheme was arranged for the de- 
 tection of A.: — Held, that he could 
 not be convicted of stealing a post- 
 letter. Re(j. V. Shepherd, Dears. 
 C. C. 606 ; '2 Jur., N. S. 96 ; 25 L. 
 J., M. C. 62. 
 
 A letter carrier, whose duty it 
 was, in case lie was unable to de- 
 liver any letter, to bring it to the 
 post-office on his return from de- 
 livery, not having delivered a letter 
 containing money, gave no account 
 of it, and being asked why he had 
 not delivered it, produced it un- 
 opened, and the coin safe within, 
 from his trousers pocket, stating, 
 untruly, that the house where it 
 ought to have been delivered was 
 closed. Upon an indictment for 
 stealing the letter, the jury found 
 him guilty, and that he detai|^ed it 
 with the intention of stealing it : — 
 Held, that so dealing with the let- 
 ter amounted to larceny. Req. v. 
 Poynton, 9 Cox, C. C. 249 ; L. & 
 C. 247 ; 8 Jur., N. S. 1218 ; 32 L. 
 J., M. C. 29 ; 11 W. R. 73 ; 7 L. 
 T., N. S. 434. 
 
 A person employed at a receiv- 
 ing house of the general post-office 
 to clean boots, and to assist in 
 tying up the letter bag, was not a 
 servant of the post-office within 52 
 Geo. 3, c. 143, s. 2. R^x v. Pear- 
 son, 4 C. & P. 572— Littledale and 
 Bosanquet. 
 
 S. was employed by a post-mis- 
 
 tress to carry letters from Dursley 
 to Berkeley, at a weekly salary 
 paid him by the post-mistress, but 
 which was repaid to her by the 
 post-office : — Held, that S! was a 
 person employed by the post-office 
 within 52 Geo. 3, c. 143, s. 2. Rex 
 V. Salisbury, 5 C. & P. 155 — ^Pat- 
 teson. 
 
 RecewinffSbuses.]—A receiving- 
 house was not a post-office within 
 52 Geo. 3, c. 143, "s. 2, but it was a 
 place for the receipt of letters, and 
 the whole shop was to be consid- 
 ered as the place for the receipt of 
 letters, and not the mere • letter- 
 box ; and therefore if a person took 
 a letter and put it on the shop- 
 counter of the receiving-house or 
 gave it to one of the persons be- 
 longing to the shop there, that was 
 a putting the letter into the post.- 
 Rex V. Pearson, 4 C. & P. 572— 
 Littledale and Bosanquet. 
 
 To constitute the offence of steal- 
 ing a letter from a place for the 
 receipt of letters, under 52 Geo. 3, 
 c. 143, s. 2, it was essential that 
 the letter should be carried out of 
 the shop which was the place for 
 the receipt of letters ; and, there- 
 fore, if a person took a letter and 
 stole its contents, without taking 
 the letter out of the shop, that was 
 not an offence, within that statute. 
 
 m 
 
 Letters and Post-Office Orders.l— 
 The president of a department ia 
 the post-office put a half-sovereign 
 into a letter, on which he wrote a 
 fictitious address, and dropped the 
 letter, with the money in it, into 
 the letter box of a post-office re- 
 ceiving-house, where the prisoner 
 was employed in the service of the 
 post-office. The prisoner stole the 
 letter and money : — Held, that this 
 was a stealing of a post letter, con- 
 taining money, and that this was 
 not the less a post letter within 7 
 Will. 4 & 1 Vict. c. 36, s. 26, be- 
 
 Digitized by Microsoft® 
 
BY POST-OFFICE SERVANTS. 
 
 263 
 
 had 
 
 a fictitious address. 
 2 C. &K. 466; 1 
 
 cause it 
 
 Reg. V. 
 
 Den. C. C. 194. 
 
 E,., an officer in the post-office in 
 London, intending to try the hon- 
 esty of G., the post-mistress of En- 
 stone, went to Oxford, and having 
 put marked money into a letter, 
 directed "Thomas Hicks, Radford 
 Lane, Exeter," placed this letter in 
 a bundle of letters in the Oxford 
 post-office, which was to go to the 
 Enstone post-office. This letter go- 
 ing in the bundle of letters to the 
 Enstone post-office, 6. took out the 
 marked money, and denied any 
 knowledge of the letter. R. neither 
 knew any person named Thomas 
 Hicks, nor that there was any such 
 place as Radford Lane in Exeter : 
 — Held, that this was not a steal- 
 ing of a post letter, but that the 
 taking of the money by G. was a 
 larceny. Rey. v. Gardener, 1 C. 
 
 6 K. 628— Pollock. 
 
 A post-office being at an inn, a 
 person was sent to put a letter, con- 
 taining promissory notes, inLo the 
 the post. He took it to the inn, 
 with money to pre-pay the post- 
 age ; he did not put it into the letter- 
 box, but laid the letter, and the 
 money upon it, upon a table in the 
 passage of the inn, in which passage 
 the letter box was, and he pointed 
 out the letter to the prisoner, who 
 was a female servant at the inn, who 
 said she would " give it to them." 
 The prisoner, who was not author- 
 ized by the inn-keeper, her master, 
 to receive letters for him, stole the 
 the letter and its contents: — Held, 
 that this was not a post-letter within 
 
 7 Will. 4 & 1 Vict. c. 36, ss. 27, 28 ; 
 and that the stealing of the letter 
 and its contents by the prisoner was 
 not an offence within either of those 
 sections. Reg. v. Harley, 1 C. & K. 
 89 — Patteson. 
 
 An inspector secretly put a letter, 
 prepared for the purpose, containing 
 a sovereign, amongst some letters, 
 which a letter carrier, suspected of 
 dishonesty, was about to sort. The 
 
 Digitized by Microsoft® 
 
 letter-carrier stole the letter and the 
 sovereign : — Held, not rightly con- 
 victed of stealing a post-letter, such 
 letter not having been put in the 
 post in the ordinary way ; but right- 
 ly convicted of larceny of the sov- 
 ereign, laid as the property of the 
 Postmaster-General. Reg. v. Rath- 
 hone, 2 M. C. C. 242 ; Car. & M. 220. 
 
 A servant, being sent with a letter, 
 and a penny to pre-pay the postage 
 of it at a receiving-house, found the 
 door shvit, and in consequence put 
 the penny inside the letter, and fas- 
 tened it in by means of a pin, and 
 then put the letter into an unpaid 
 letter-box. A messenger in the Gen- 
 eral Post-office stole this letter, mth 
 the penny in it : — ^Held, that he 
 might be convicted of stealincp a 
 post -letter containing money, al- 
 though the money was not put into 
 the letter for the purpose of being 
 conveyed, by means of it, to the 
 person to whom it was addressed. 
 Reg. V. Mence, Car & M. 234— 
 Denman. 
 
 A post-office order, for the pay- 
 ment of 5Z. in the ordinary form, is 
 a warrant and order for the payment 
 of money, and may be so described 
 in an indictment for larceny. Reg. 
 V. Gilchrist, 2 M. C. C. 233 ; Car. & 
 M. 224. 
 
 A. Brought a letter, enclosing a 
 10?. note, to a district receiving- 
 house, and desu-ed that it might be 
 registered. The post-mistress took 
 the money for the registration, and, 
 being busy at the time, requested A. 
 to call again. Li the meantime she 
 put the letter under a glass case, to 
 which the prisoner had access. When 
 the letter was taken up, for the pur- 
 pose of being despatclied, it was 
 found that the note had been ex- 
 tracted : — Held, that the letter was 
 a post-letter. Reg. v. Rogers, 5 Cox, 
 C. C. 293— Cresswell. 
 
 A letter containing a post-office 
 order, directed to John Davies, was 
 misdelivered to John Davis, one of 
 the prisoners. Not being able to 
 read, he took it to W. D., the other 
 
264 
 
 LARCENY AND RECEIVERS. 
 
 prisoner who read it to him. He then 
 said the letter and order were not for 
 him, hut was advised by W. D. to 
 keep them and get the money. Both 
 prisoners then went to the post-of- 
 fice, obtained the money and appro- 
 priated it to their own use : — Held, 
 that a conviction for larceny of the 
 order could not be supported. Reg. 
 V. Davies, Dears. C. C. 640 ; 2 Jur., 
 N. S. 478 ; 25 L. J., M. C. 91 ; 7 Cox, 
 C. C. 104. 
 
 Where a prisoner had obtained 
 letters from the post-ofSee by falsely 
 representing that he was sent for 
 them by the person to whom they 
 were addressed : — Held that if he 
 then meant to steal them he might 
 be convicted of larceny. Reg. v. 
 Gillings, 1 F. & F. 36— ChanneU. 
 
 Indictment] — In an indictment on 
 7 Will. 4 & 1 Vict. c. 36, s. 26, for 
 secreting a post letter, it is not nec- 
 essary to state the purpose for which 
 the letter was secreted. Reg. v. 
 Wynn, 2 C. & K. 859 ; 1 Den. C. 
 C. 365 ; T. & M. 32 ; 18 L. J., M. C. 
 51. 
 
 Svidence.] — Possession by a letter 
 carrier of a bank note some months 
 after it has been sent by post and 
 lost, is not sufficient evidence of a 
 felonious stealing by him, although 
 not accounted for otherwise than by 
 his mere assertion that he found it. 
 Reg. V. Smith, 3 F. & F. 123— 
 Bramwell. 
 
 At the trial of a person on 52 Geo. 
 3, c. 143, s. 2, for embezzling a let- 
 ter containing a bill of exchange, he 
 being at the time employed under 
 the post-office, it was sufficient to 
 prove that such person acted in the 
 service of the post-office, and it was 
 not necessary to go into proof of his 
 appointment. Rex v. Rees, 6 C. & 
 P. 606— Parke. 
 
 i. In a DweUing-hoitse. 
 To the value o/£5.]— By 24 & 25 
 Vict. c. 96, s. 60, "whosoever shall 
 " steal in any dwelling-house any 
 
 " chattel, money, or valuable socur- 
 " ity (as to the interpretation of this 
 " word, see sect. 1) to the value in 
 " the whole of 51. or more, shall be 
 " guilty of felony, and being con- 
 " victed thereof, shall be Kable, at 
 " the discretion of the court, to be 
 "kept in penal servitude for any 
 " term not exceeding fourteen years, 
 " and not less than five years (27 
 " & 28 Vict. c. 47), or to be im- 
 " prisoned for any teim not exceed- 
 " ing two years, with or without 
 " hard labour, and with or without 
 " solitary confinement." (Former 
 provisions, 7 & 8 Geo. 4, c. 29, s. 
 12, and Anne, st. 1, c. 7, respectively 
 repealed^ 
 
 If a prisoner, who was in the ser- 
 vice of the prosecutor, stole a quan- 
 tity of lace in several pieces, the 
 pieces together being above 5Z. in 
 value, and brought them all out of 
 his master's house at the same time, 
 this was a capital offence, although 
 it was shewn that the prisoner had 
 the opportunity of stealing the lace 
 by a piece at a time, and that no 
 one of the pieces was worth bl. 
 Rex V. Jones, 4 C. & P. 217— Bol- 
 land. 
 
 A servant indicted for stealing 
 bank-notes, the property of her mas- 
 ter, in his dwelling-house, set up, as 
 her defence, that she found them in 
 in the passage, and not knowing to 
 whom they belonged, kept them to 
 see if they were advertised : — ^Held, 
 she ought to have inquired of her 
 master whether they were his or not ; 
 and that not having done so, but 
 having taken them away from the 
 house, she was guilty of stealing 
 them. Reg. v. Kerr, 8 C. & P. 176 
 —Park. 
 
 Stealing in a bed-room over a 
 stable in a yard, not under the same 
 roof, nor having any direct commu- 
 nication with the house in which the 
 prosecutor resides, cannot be proper- 
 ly charged as a steaUng in his dwel- 
 ling-house. Rex V. Turner, 6 C. & 
 P. 407— Vaughan. 
 
 If one, on going to bed, puts his 
 
 Digitized by Microsoft® 
 
IN A DWELLING-HOUSE. 
 
 265 
 
 clothes and money by the bed-side, 
 they are under the protection of the 
 dwelling-house, and not of the .per- 
 son; and, therefore, a party steal- 
 ing them may be convicted of steal- 
 ing in a dwelling-house. Rex v. 
 Thomas, Car. C. L. 295. 
 
 A man went to bed with a pros- 
 titute, having put his watch in his 
 hat on the table ; the woman stole 
 the watch whilst he was asleep : — 
 Held, that the offence was that of 
 stealing in a dwelling-house, and not 
 a stealing from the person. Reg. v. 
 Hamilton, 8 C. & P. 49— Parke and 
 Patteson. 
 
 Under 12 Anne, st. 1, c. 7, the 
 larceny must have been of things un- 
 der the protection of the house, and 
 not of any person within it, there- 
 fore not of money in the pocket. 
 Rex v. Owen, 2 East, P. C. 645 ; 2 
 Leach, C. C. 572. 
 
 Property left by mistake at a 
 house, and deli^jered to the occupier, 
 under the supposition that it was 
 for one of the persons in the house, 
 is entitled to the protection of the 
 house. Rex v. Carroll, 1 M. C. C. 
 89. 
 
 The goods of a lodger's guest are 
 under the protection of the dwel- 
 ling-house ; therefore a lodger who 
 invites a man to his room, and then 
 steals his goods to the value of 40s. 
 (now 51.) when not about his person, 
 is liable to be found guilty of steal- 
 ing in a dwelling-house. Rex v. 
 Taylor, R. & R. C. C. 418. 
 
 Stealing in a dwelling-house to the 
 value of bl. or more by the owner of 
 the house was within 7 & 8 Geo. 4, 
 c 29, s. 12. Reg. v. Bowden, 2 M. 
 C. C. 285 ; 1 C. & K. 147. 
 
 A servant let a person into his 
 master's house on a Saturday after- 
 noon, and concealed him there all 
 night, in order that he might rob 
 the house, and on Sunday morning 
 left the premises. In pursuance of 
 the previous arrangement, the man, 
 in the servant's absence, broke into 
 th'e bed-room of the master,- and 
 
 Held, that the man who took the 
 property from the cash -box was 
 rightly charged as a thief. Reg. v. 
 fuckweU, Car. & M. 215— Cole- 
 ridge. 
 
 A member of a club was indicted 
 for stealing some of the plate used 
 at the club-house. The house-stew- 
 ard slept in the house, and stated, 
 that he had the charge of all the 
 plate, and was responsible for it ; 
 but the plate was delivered every 
 night to the under-butler, who was 
 appointed by the club, and by him 
 placed in a chest in the pantry. 
 The indictment described the goods 
 as the 'property of the house-stew- 
 ard, and alleged it to have been 
 stolen in his dwelUng-house : — Held, 
 that, upon the evidence, it was 
 wrong in both respects, inasmuch as 
 his sleeping in the house was only 
 as a servant of the club, and his al- 
 leged responsibility was not coupled 
 with any custody of the property, 
 either by himself or his own serv- 
 ants. Reg. V. Ashley, 1 C. & K. 198 
 — Law and Bullock. 
 
 Indictment.] — A. and B. were 
 found guilty on an indictment con- 
 taining two counts — one for steal- 
 ing' in a dwelling-house above the 
 value of 5Z., and the other for sim- 
 ple larceny, and the judgment was, 
 that they should be transported for 
 ten years for the felony aforesaid : — 
 Held, that the judgment was bad ; 
 as either the indictment alleged one 
 felony in two counts, in which case 
 the judgment was bad for uncertain- 
 ty, the court not having the power 
 to apply it to the particular count in 
 the indictment which would support 
 it ; or it alleged a separate felony on 
 each count, in which case, the jury 
 having found but one offence, the 
 judgment is bad, because the word 
 felony cannot be treated as nomen 
 collectionis. Campbell v. Reg. (in 
 error), 2 New Sess. Cas. 297 ; 11 Q. 
 B. 799 ; 10 Jur. 329 ; 15 L. J., M. C. 
 76. 
 
 stole the contents of h©/g3i^^!^/C^(Jj?^dictment for attempting 
 Fish. Dig.— 20. 
 
266 
 
 LARCENY AND RECEIVERS. 
 
 to steal goods in a dwelling-house, 
 it is not necessary to specify any 
 particular article or articles. A 
 general allegation of an attempt to 
 steal "goods and chattels" is suf- 
 ficient. Reg. V. Johnson, 10 Jur., 
 N. S. 1160 ; 34 L. J., M. C. 24 ; 13 
 W. R. 101 ; L. & C. 489. 
 
 With Menaces.] — Bj 24 & 25 
 Vict. c. 96, s. 61, " whosoever shall 
 " steal any chattel, money or valu- 
 " ahle security in any dwelling- 
 " house, and shall by any menace or 
 " threat put any one being therein 
 "in bodily fear, shall be guilty of 
 " felony, and, being convicted there- 
 " of, shall be liable, at the discretion 
 " of the court, to be kept in penal 
 " servitude for any term not exceed- 
 "ing fourteen years, and not less 
 " than five years (27 & 28 Vict. c. 
 " 47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment. " ( Former provision, 7 
 Will. 4 & 1 Vict. c. 86, s. 6.) 
 
 An indictment for stealing in the 
 dwelling-house, persons being there- 
 in and put in fear, must state that 
 the persons were put in fear by the 
 prisoners, ttex v. Etherington, 2 
 Leach, C. C. 671 ; 2 East, P. C. 635. 
 
 Li order to constitute the ofience 
 of stealing in a dwelling-house, and 
 by menaces and threats putting per- 
 sons being therein in bodily fear, it is 
 not necessary that all the persons 
 engaged in the crime should be act- 
 ually in the house ; and if one re- 
 mains outside, he may be equally 
 guilty of using menaces and threats, 
 if there was a common purpose to 
 inspire terror. Reg. v. Murphy, 6 
 Cox, C. C. 340— Williams. 
 
 A threat to a person outside the 
 house is not within the words of the 
 statute, but it is a circumstance from 
 which the jury may infer the fine of 
 conduct inside the house. Ih. 
 
 The act of placing persons with 
 their faces against a wall, and desir- 
 ing them not to look round, with- 
 
 out the use of any actual violence, 
 is evidence of an intention to ' ob- 
 tain, money by threats, and the bod- 
 ily fear may be inferred, although 
 the persons so treated may deny 
 that such acts created alarm or fear. 
 lb. 
 
 5. From the Person. 
 
 If a person with menaces demand- 
 ed a sum of money of another, and 
 that the other did not give it to 
 him because he had it not with him, 
 this was a felony within 7 & 8 Geo. 
 4, c. "29, s. 6 ; but if the person de- 
 manding the money knew that the 
 money was not then in the posses- 
 sion of the party, and only intended 
 to obtain an order for the payment 
 of it, it was otherwise. Rex v. Fd- 
 wards, 6 C. & P. 515 — Patteson. 
 
 To constitute a stealing from the 
 person, the thing must be complete- 
 ly removed from the person ; remov- 
 al from the place where it was, if it 
 remains throughout with the person, 
 is not sufiicient. Rex v. Thompson, 
 1 M. C. C. 78. 
 
 But such removal would be suf- 
 ficient to constitute a simple lar- 
 ceny. Tb. 
 
 A watch was carried in a waist- 
 coat pocket, with a chain attached 
 passing through a button-hole of 
 the waistcoat, being there secured 
 by a watch-key. The prisoner took 
 the watch out of the pocket and by 
 force drew the chain out of the but- 
 ton-hole, but the watch-key having 
 been caught by a button of the 
 waistcoat, the watch and chain re- 
 mained suspended : — Held, a suf- 
 ficient severance to maintain a con- 
 viction for stealing from the person. 
 Reg. V. Simpson, DesiTS. C. C. 421 ; 
 3 C. L. R. 80 ; 18 Jur. 1030 ; 24 L. 
 J.,M.C.7; 6 Cox, C. C. 422. . 
 
 On a trial for robbery and steal- 
 ing from the person, it was proved 
 that the prosecutor, who was para- 
 lysed, received, whilst sitting on a 
 sofa in his room, a violent blow on 
 the bead from one of the prisoners, 
 whilst the other went to a cupboard 
 
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IN MANUFACTORIES. 
 
 267 
 
 in the same room and stole there- 
 from a cash-box : — Held, that it 
 was a question fpr the jury wheth- 
 er the cash-box was at the time un- 
 der the protection of the prosecutor. 
 If so, the charge of stealinac from 
 the person would be sustamed. 
 Beg. V. Selway, 8 Cox, C. C. 235 
 — Chambers, C. S. 
 
 6. By Tenants or Lodgers. 
 
 By 24 & 25 Vict. c. 96, s. 
 74, " whosoever shall steal any chat- 
 " tel or fixture let to be used by 
 " him or her in or with any house 
 " or lodging, whether the contract 
 " shall have been entered into by 
 " him or her or by her husband, orby 
 " any person on behalf of him or 
 " her or her husband, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " be imprisoned for any term not 
 " exceeding t\jo years, with or with- 
 " out hard labour, and with or with- 
 " out solitary confinement, and, if 
 " a male under the age of sixteen 
 " years, with or without whipping ; 
 " and in case the value of such chat- 
 " tel or fixture shall exceed the sum 
 " of five pounds, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for any 
 " term not exceeding seven years, 
 " and not less than five years (27 
 " & 28 Vict. c. 47), or to be im- 
 " prisoned for any term not exceed- 
 " ing two years, with or without 
 " hard labour, and with or without 
 " solitary confinement, and, if a 
 "male under the age of sixteen 
 " years, with or without whipping ; 
 " And in every case of stealing 
 " any chattel in this section men- 
 " tioned it shall be lawful to prefer 
 " an indictment in the common 
 " form as for larceny, and in every 
 " case of stealing any fixture in 
 "this section mentioned to prefer 
 " an indictment in the same foi-m 
 " as if the ofiender were not a ten 
 
 " ant or lodger, and in either case _ _ 
 
 "to lay the FopertyJf^t^l^^Y^tesofe"" ''^ 
 
 " or person letting to hire." {For- 
 mer provision, 7 & 8 Geo. 4, c. 29, 
 s. 45. By 7 & 8 Geo. 4, o. 27, 3 
 Will. & M. c. 9, was repealed.) 
 
 The prisoners were tenants and 
 occupiers ot a house in which were 
 certain gas-fittings belong to a pub- 
 lic company. It became necessary 
 that a gas-meter should be changed, 
 and the old one was taken down 
 and left in the custody of the prison- 
 ers till called for by the company's 
 servant. In the meantime they con- 
 verted it to their use : — Held, that 
 they could not be convicted of lar- 
 ceny. Reg. V. Mattheson, 5 Cox, 
 C. C. 276— Gurney. 
 
 The case of Rex v. Palmer, 2 
 Leach, C. C. 680 ; 2 East, P. C. 
 586, deqided that a tenant stealing 
 goods from a ready-furnished house 
 was not guilty of felony, within 3 
 Will. & M. c. 9, s. 5. 
 
 7. In Manufactories. 
 
 By 24 & 25 Vict. c. 96, s. 62, 
 " whosoever shall steal, to the val- 
 " ue of 10«., any woollen, linen, 
 " hempen or cotton yarn, or any 
 " goods or article of silk, woollen, 
 " linen, cotton, alpaca or mohair, 
 " or of any one or more of those 
 " materials mixed with each other, 
 " or mixed with any other material, 
 " whilst laid, placed or exposed, dur- 
 " ing any stage, process or progress 
 " of manufacture, in any building, 
 " field or other place, shall be guilty 
 " of felony, and being convicted 
 " shall be liable, at the discretion 
 " of the court, to be kept in penal 
 " servitude for any tei-m not exceed- 
 " ing fourteen years, andnot less than 
 " five years (27 & 28 Vict. c. 47), or 
 "be imprisoned for any tenn not 
 " exceeding two years, with or with- 
 " out hard labour, and with or with- 
 " out solitary confinement." {For- 
 mer provision, 7 & 8 Geo. 4, c. 29, 
 s. 16.) 
 
 Where, on an indictment on 18 
 Geo. 2, c. 27, for stealing yarn out 
 of a bleaching-ground, it appeared 
 been spread on 
 
268 
 
 LARCENY AHiTD RECEIVERS. 
 
 the ground, but at the time of the 
 theft was in heaps,' in order to be 
 carried into the house : — Held, that 
 as there was no occasion to leave it 
 in that state, it was not within the 
 statute, which uses the words, 
 " laid, placed or exposed, during 
 any stage, process or progress of 
 manufacture, in any building, field 
 or other place." liex v. HugiU, 2 
 Russ. C. & M. 245. 
 
 On an indictment on 18 Geo. 2, 
 c. 27, for stealing caliqo placed to 
 be printed, &c., in a building made 
 use of by a calico printer, for print- 
 ing, drying, &c. : — Held, that in or- 
 der to support the capital charge, 
 it was necessary to have proved 
 that the building, from which the 
 calico was stolen, was made use of 
 either for printing or drying calico. 
 Hex V. Dixon, R. & R. C. C. 53 ; 1 
 East, P. C. 512. 
 
 By 17 Geo. 3, c. 56, s. 10, it 
 shall be lawful for any two justices, 
 upon complaint made to them up- 
 on oath that there is cause to sus- 
 pect that purloined or embezzled 
 materials, used in certain manufac- 
 tures, are concealed in any dwelling- 
 house, outhouse, yard, garden or 
 other place or places, to issue a 
 search warrant for the search, in 
 the daytime, of every such dwelling- 
 house, &c. ; and if any such mate- 
 rials, suspected to be purloined or 
 embezzled, are found therein, to 
 cause the same, and the person in 
 whose house, outhouse, yard, gar- 
 den or other place they are found, 
 to be brought before two justices; 
 and if the person shall not give an ac- 
 count to their satisfaction of how he 
 came by the same, he shall be ad- 
 judged guilty of a misdemeanor : 
 — Held, that a warehouse occupied 
 for business purposes only, and not 
 within the curtilage of or connected 
 with any dwelUng-house, was a 
 place within the section. Heg. v. 
 Edmundson, 2 El. & El. 77 ; 5 Jur., 
 N. S. 1351 ; 28 L. J., M. C. 213 ; 8 
 Cox, C. C. 212. 
 
 8. From Mines. 
 
 By 24 & 25 Vict. c. 96, s. 38, 
 " whosoever shall steal, or sever 
 " -with intent to steal, the ore of 
 " any metal, or any lapis calamina- 
 " ris, manganese or mundick, or 
 " any wad, black cawke or black 
 " lead, or any coal or cannel coal, 
 " from any mine, bed, or vein there- 
 " of respectively, shall be guilty of 
 " felony, and, being convicted there- 
 " of, shall be liable, at the discretion 
 " of the court, to be imprisoned for 
 " any term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment." (Previous enactment, 7 & 
 8 Geo. 4, c. 29, s. 37.) 
 
 By s. 39, " whosoever, being em- 
 " ployed in or about any mine, shall 
 " take, remove or conceal any ore 
 " of any metal, or any lapis calami- 
 " naris, manganese, mundick or oth- 
 " er mineral found or being in such 
 " mine, with intent tg defraud any 
 " proprietor of or any adventurer in 
 " such mine, or any workman or 
 " miner employed therein, shall be 
 " guilty of felony." (2 & 3 Vict. c. 
 58, s. 10, Previous enactment. Pun- 
 ishment as in last section.) 
 
 It is not larceny for miners em- 
 ployed to bring ore to the surface, 
 and paid by the owners according 
 to the quantity produced, to remove 
 from the heaps of other miners ore 
 produced by them, and add it to 
 their own, in order to increase their 
 wages, the ore still remaining in the 
 possession of the owners. Hex v. 
 Webb, 1 M. C. C. 431. 
 
 An indictment alleging, that A. 
 B., C. D., and persons employed in 
 a mine, in the parish of &c., in the 
 county of Cornwall, did steal ore, 
 the property of the adventurers in 
 the said mine, then and there being 
 found, does not sufficiently shew 
 the ore to have been in the mine 
 when stolen. Heg. v. Trevenner, 2 
 M. & Rob. 476— Cresswell. 
 
 Where a prisoner was indicted in 
 one Qount for stealing from the 
 
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ABROAD OR 0^ THE HIGH SEAS. 
 
 269 
 
 mine of A J. G. coal, the property 
 of H. J. G., and in the same count 
 for stealing from the mines of thirty 
 other proprietors coal, the property 
 of each of such other proprietors, 
 and it appeared that all the coal so 
 alleged to have been stolen, had 
 been raised at one shaft : — Held, 
 first, that the prosecutor could not 
 be called upon to elect on which 
 charge he would go to the jury. 
 Beg. V. Bleasdale, 2 C. & K. 765 
 —Erie. 
 
 Held, secondly, that although, 
 for the sake of convenience, in try- 
 ing the prisoner the judge might di- 
 rect the jury to confine their atten- 
 tion to one particular charge, yet 
 that the prosecutor was entitled to 
 give evidence in support of all the 
 charges in the indictment. Ih. 
 
 Held, thirdly, that proof of such 
 charges might Ise relied on, in order 
 to shew a felonious intent, lb. 
 
 9. In Ships in Ports or on Naviga- 
 ble Itivers and Wharves. 
 In Ports or Canals.'] — By 24 & 
 
 25 Vict. c. 96, s. 63, " whosoever 
 shall steal any goods or merchan- 
 dise in any vessel, barge, or boat 
 of any &escription whatsoever in 
 any haven, or in any port of entry 
 or discharge, or upon any naviga- 
 ble river, or canal, or in any creek 
 or basin belonging to or com- 
 municating with any such haVen, 
 port, river or canal, or shall steal 
 any goods or merchandise from 
 any dock, wharf, or quay adja- 
 cent to any such haven, port, riv- 
 er, canal, creek, or basin, shall be 
 guilty of felonj', and being con- 
 victed thereof, shall be Kable, at 
 the discretion of the court, to be 
 kept in penal servitude for any 
 term not exceeding fourteen years, 
 and not less than five years (27 
 & 28 Vict. c. 47) , or to be im- 
 prisoned for any term not exceed- 
 ing two years, with or without 
 hard labour, and with or without 
 solitary confinement." [Former 
 
 provision, 7 & 8 Geo. f^^^y^f^Bj ^^)^ 
 
 {See 24-3 Vict. c. Al , s. 30, for 
 Stealing from wharfs within the 
 metropolis.) 
 
 The luggage of a passenger going 
 by a steamboat, was within the 
 words " goods or merchandise" in 
 7 & 8 Geo. 4, c. 29, s. 17. Rex v. 
 Wright, 7 C. & P. 159— Park and 
 Alderson. 
 
 An indictment for stealing goods 
 on a navigable river was not satis- 
 fied by evidence of a stealing on 
 one of its «reeks. Rex v. Pike, 1 
 Leach, C. C. 317 ; 2 East, P. C. 
 647. 
 
 From Ships in Distress.] — By s. 
 .64, " whosoever shall plunder or 
 " steal any part of any ship or ves- 
 " sel which shall be in distress, or 
 " wrecked, stranded or cast on 
 " shore, or any goods, merchandise, 
 " or articles of any kind belonging 
 " to such ship or vessel, shall be 
 " guilty of felony ; 
 
 " And the offender may be iij- 
 " dieted and tried either in the coun- 
 " ty or place in which the offence shall 
 " have been committed, or in any 
 " county or place next adjoining." 
 [Former provision, 7 Will. 4 & 1 
 Vict. 0. 87, s. 8. Punishment as in 
 preceding section.) 
 
 10. Abroad or on the High Seas. 
 
 If a person is apprehended in a 
 borough for a larceny committed on 
 the high seas, he may be tried for 
 that larceny before the court of 
 quarter sessions of the borough. 
 Reg. V. Peel, L. & C. 231 ; 9 Cox, 
 C. C. 220 ; 32 L. J., M. C. 65 ; 8 
 Jur., N. S. 1185; 11 W. R. 40; 7 
 L. T., N. S. 336. 
 
 Piratically stealing a ship's an- 
 chor and cable was a capital offence 
 by the marine laws, and triable un- 
 der 28 Hen. 8, c. 15 ; 39 Geo. 3, c. 
 37, not extending to this case. 
 Rex V. Curling, R. & R. C. C. 123. 
 
 If a larceny is committed out of 
 
 the kingdom, though within the 
 
 king's dominions (e. g. in Jersey), 
 
 I. .bringing the things stolen into this 
 
270 
 
 LARCENY AND RECEIVERS. 
 
 kingdom will not make it larceny 
 here. Hex v. Frowes, 1 M. C. C. 
 349 ; S. P., Eeg. v. Madge, 9 C. & 
 P. 29. 
 
 11. Stealing or destroying Written In- 
 struments. 
 Valuable Securities.^ — By 24 & 
 25 Vict. c. 96, s. 27, " whosoever 
 ' shall steal, or shall for any fraud- 
 ' ulent purpose destroy, cancel, or 
 ' ohUterate the whole or any part 
 ' of any valuable security, other 
 ' than a document of title to lands, 
 ' shall be guilty of felony, of the 
 ' same nature and in the same de- 
 ' gree, and punishable in the same 
 ' manner as if he had stolen any* 
 ' chattel of like value with the 
 ' share, interest, or deposit to which 
 ' the security so stolen may relate, 
 ' or with the money due on the se- 
 ' curity so stolen, or secured there- 
 ' by and remaining unsatisfied, or 
 ' with the value of the goods or 
 ' other valuable thing represented, 
 ' mentioned or referred to in or by 
 ' the security." (Former provision, 
 7 & 8 Geo. 4, c. 29, s. 5.) 
 
 An indictment- under this section 
 for stealing a valuable security, 
 must particularise the kind of valu- 
 able security stolen ; and any mate- 
 rial variance between the descrip- 
 tion in the indictment and the evi- 
 dence, if not amended, will be fatal. 
 jReg. v. Lowrie, 1 L. R., C. C. 61 ; 
 36 L. J., M. C. 24 ; 15 W. R. 360 ; 
 15 L. T., N. S. 632. 
 
 Deeds relating to Real Property.^ 
 —By 24 & 25 Vict. c. 96, s. 28, 
 " whosoever shall steal, or shall for 
 " any fraudulent purpose destroy, 
 " cancel, obliterate, or conceal the 
 " whole or any part of any docu- 
 " ment of title to lands shall be 
 " guilty of felony, and being con- 
 " victed thereof shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for the 
 " term of five years (27 & 28 Vict. 
 " c. 47), or to be imprisoned for 
 " any term not exceeding two years, 
 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment ; 
 
 Form of Indictment.l — " And in 
 " any in(£ctment for any such of- 
 " fence relating to any document 
 " of title to lands, it shall be suffi- 
 " cient to allege, such document to 
 " be or to contain evidence of the 
 " title or of part of the title of the 
 " person or of some one of the per- 
 " sons having an interest, whether 
 " vested or contingent, legal or 
 " equitable, m the real estate to 
 " which the same relates, and to 
 " mention such real estate or some 
 " part thereof." [Former provision, 
 7 & 8 Geo. 4, c. 29, s. 23.) 
 
 By s. 1, "the term 'document 
 " of title to lands' shall include 
 " any deed, map, paper, or parch- 
 " ment, written or printed, or part- 
 " ly written or partly printed, be- 
 " ing or containing evidence of the 
 " title, or any part of the title, to 
 " any real estate, or to any interest 
 " in or out of any real estate." 
 
 Wiils or Codicils.] — By s. 29, 
 " whosoever shall, either during the 
 " life of the testator or after his 
 " death, steal, or for any fraudulent 
 " purpose destroy, cancel, obliterate, 
 " or conceal, the whole or any part 
 " of any will, codicil, or other testa- 
 " mentary instrument, whether the 
 " the same shall relate to real or per- 
 " sonal estate, or to both, shall be 
 " guilty of felony, and being con- 
 " victed thereof, shall be' liable, 
 " at the discretion of the court, to 
 " be kept in penal servitude for life, 
 " or for any term not less than five 
 " years, or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment ; 
 
 " And it shall not in any indict- 
 " ment for such olFence be necessa- 
 " ry to allege that such will, codi- 
 " cil, or other instrument is the 
 " property of any person." (Fanner 
 
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TREES, SHRUBS, ETC. 
 
 271 
 
 provision, 7 & 8 Geo. 4, c. 29, s. 23.) 
 If a defendant concealed a will, 
 and the money which ought, by the 
 will, to have gone to A. & B., and 
 with that money paid the debts of 
 the husband of the next of kin, to 
 whom he was a creditor, this was a 
 fraudulent purpose, within 7 & 8 
 Geo. 4, c. 29, s. 23. Heff. v. Mor- 
 ris, 9 G. & P. 89— Alderson. 
 
 On an indictment on 7 & 8 Geo. 
 4, c. 29, s. 23, for stealing writings 
 relating to real estate, the jury 
 must be satisfied that the defendant 
 took them under such circumstan- 
 ces as would have amounted to lar- 
 ceny, if the writings had been the 
 subject of larceny. Sex v. John, 
 7 C. & P. 324— Patteson. 
 
 Hecords or Legal Documents.^ — 
 By s. 30, " whosoever shall steal, 
 or shall for any fraudulent pur- 
 pose take from its place of depos- 
 it for the time being, or from any 
 person having the lawful custody 
 thereof, or shall unlawfully and 
 maliciously cancel, obliterate, in- 
 jure, or destroy the whole or any 
 part of any record, writ, return, 
 panel, process, interrogatory, de- 
 position, affidavit, rule, order or 
 warrant of attorney, or of any 
 original document whatsoever of 
 or belonging to any court of rec- 
 ord, or relating to any matter, 
 civil or criminal, begun, depend- 
 ing, or terminated in any such 
 court, or of any bill, petition, an- 
 swer, interrogatory, deposition, 
 affidavit, order, or decree, or of 
 any original document whatsoev- 
 er of or belonging to any court of 
 equity, or relating to any cause or 
 matter begun, depending, or ter- 
 minated in any such court, or of 
 any original document in any- 
 wise relating to the business of 
 any office or employment under 
 her Majesty, and being or remain- 
 ing in any office appertaining to 
 any court of justice, or in any of 
 her Majesty's castles, palaces, or 
 houses, or in any government or 
 
 " public office, shall be guilty of 
 " felony, and being convicted there- 
 " of shall be liable, at the discretion 
 " of the court, to be kept in penal 
 " servitude for five years (27 & 28 
 " Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard la- 
 " hour, and with or without solita- 
 " ry confinement ; and it shall not 
 " in any indictment for such oifence 
 " be necessary to allege that the 
 " article in respect of which the of- 
 " fence is committed is the property 
 " of any person." {Former provi- 
 sion, 7 & 8 Geo. 4, c. 29, s. 21.) 
 
 Before 7 & 8 Geo. 4, c. 29, steal- 
 ing rolls of parchment was a larce- 
 ny, although such rolls were the 
 record of a court of justice, unless 
 they concerned the realty. Rex v. 
 Walker, 1 M. C. C. 155 ; but it was 
 not so if they concerned the realty. 
 Rex V. Westbeer, 2 Str. 1133. 
 
 A commission to settle the bound- 
 aries of a manor is an instrument 
 concerning the realty, and not the 
 subject of larceny at common law. 
 Rex V. Westbeer, 1 Leach, C. C. 13. 
 
 Parish Registers!] — Indictment 
 under 11 Geo. 4 & 1 Will. 4, c. 66, 
 s. 20, for destroying, defacing and 
 injuring a register of baptisms, mar- 
 riages and burials. Objections : 1. 
 That there was neither a destroy- 
 ing, defacing nor injuring, because 
 the register, when produced, had 
 the torn piece pasted in, and was 
 as legible as before. 2. That the 
 indictment was bad for uncertainty, 
 for alleging three distinct and dif- 
 ferent offences. 3. For not con- 
 taining an express averment of a 
 scienter : — Held, indictment good 
 on all points. Reg. v. Bowen, 1 
 Den. G. C. 22 ; 1 C. & K. 501. 
 
 12. Stealing or destroying Trees, 
 Shrubs, Vegetables and Fences. 
 In Parks, Pleasure Grounds, or 
 Orchards.]— By 24 & 25 Vict. c. 
 96, s. 32, " whosoever shall steal, 
 " or shall cut, break, root up, or 
 
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272 
 
 LARCENY AND RECEIVERS. 
 
 " otherwise destroy or damage with 
 " intent to steal, the whole or any 
 " part of any tree, sapling, or shrub, 
 " or any underwood, respectively 
 " growing in any park, pleasure 
 " ground, garden, orchard, or ave- 
 " nue, or in any ground adjoining 
 " or belonging to any dwelling- 
 " house, shall (in case the value of 
 " the article or articles stolen, or 
 " the amount of the injury done, 
 " shall exceed the sum of 1^.) be 
 " guilty of felony, and being con- 
 " victed thereof shall be liable to 
 " be punished as in the case of sim- 
 " pie larceny ; 
 
 " And whosoever shall steal, or 
 " shall cut, break, root up, or oth- 
 " erwise cjestroy or damage, with 
 " intent to steal, the whole or any 
 " pai't of any tree, sapling, or shrub, 
 " or any underwood, respectively 
 " growing elsewhere than in any of 
 " the situations in this section be- 
 " fore mentioned, shall (in case the 
 " value of the article or articles stol- 
 " en, or the amount of the injury 
 " done, shall exceed the sum of 51.) 
 " be guilty of felony, and being con- 
 " victed thereof shall be liable to be 
 " punished as in the case of simple 
 " larceny." (Similar to former pro- 
 vision, 7 & 8 Geo. 4, c. 29, s. 38.) 
 
 In 7 & 8 Geo. 4, c. 29, s. 38, the 
 words " adjoining any dwelling- 
 house" imported actual contact, and 
 therefore ground separated from a 
 house by a narrow walk and paling 
 with a gate in it, was not within 
 their meaning. Hex v. Hodges, M. 
 & M, 341— Park and Parke. 
 
 Whether ground is properly de- 
 scribed as a garden within that sec- 
 tion, is a question for the jury. lb. 
 
 The 24 & 25 Vict. c. 96, s. 32, 
 enacts, that whosever shall steal 
 or cut, destroy or damage with 
 intent to steal the whole or any 
 part of any tree, &., shall (m 
 case the value of the article or 
 articles stolen, or the amount of 
 the injury done, shall exceed the 
 sum of ol.) be guilty of felony. In 
 estimating the injury, the amount 
 
 of the injury done to two or more 
 trees may be added together, pro- 
 vided the trees are damaged at one 
 and the same time, or so nearly 
 at the same time, as to form one 
 continuous transaction. Reg. v. 
 Shepherd, 1 L. R., C. C. 118; 37 
 L. J., M. C. 45; 16 W. R. 373; 
 17L. T., N. S. 482; 11 Cox, C. C. 
 119. 
 
 Elsewhere.'] — By s. 33, " whosoev- 
 " er shall steal, or shall cut, break, 
 " root up, or otherwise destroy or 
 " damage with intent to steal, the 
 " whole or any part of any tree, sap-. 
 " ling, or shrub, or any underwood, 
 " wheresoever the same may be re- 
 " spectively growing, the stealing 
 " of such article or articles, or the 
 " injury done, being to the amount 
 " of Is. at the least, shall, on convic- 
 " tion thereof before a justice of the 
 " peace, forfeit and pay, over and 
 " above the value of the article or 
 " articles stolen, or the amount of 
 " the injury done, such sum of mon- 
 " ey not exceeding bl. as to the jus- 
 " tice shall seem meet." {Similar 
 to7 &8 Geo. 4, c. 29, s. 39.) 
 
 A conviction under the 7 & 8 
 Geo. 4, c. 29, s. 39, for stealing an 
 ash tree, the property of M., order- 
 ed the offender " to forfeit and pay, 
 over and above the value of the 
 tree stolen, 5s., and for the value 
 of the tree Is. ; and also to pay 11. 
 4s. 6d. for costs, to be paid on or 
 before March 19th, and, in default 
 of payment of the sums, to be im- 
 prisoned for one month, unless the 
 sums should be sooner paid." It was 
 then ordered, that the 5s. should be 
 paid to the overseer, and the 1 s. to 
 the person aggrieved, and the 11. 4s. 
 Gd. should be immediately paid to 
 R., the complainant. The informa- 
 tion had been laid by R. before one 
 magistrate, who had granted a sum- 
 mons, and Jhe case heard, and the 
 conviction made by another. On 
 an action for false imprisonment 
 being brought against the convict- 
 ing magistrate: — Held, that the 
 
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TREES, SHRUBS, ETC. 
 
 273 
 
 conviction was not invalidated, 
 first, by reason of its not having 
 taken place upon the information of 
 the person aggrieved. Secondly, 
 nor from its having taken place be- 
 fore a magistrate, who did not re- 
 ceive the original information. 
 Thirdly, nor by the mode of adjud- 
 icating as to the costs. Tarry v. 
 Newman^ 2 New. Sess. Cas. 449; 
 15 M. & W. 645 ; 15 L. J., M. C. 
 160. 
 
 Fences.\ — By s. 34, " whosoever 
 " shall steal, or shall cut, break, or 
 " throw down with intent to steal, 
 " any part of any live or dead fence, 
 " or any wooden post, pale, wire, or 
 " rail set up or used as a fence, or 
 " any stile or gate, or any part 
 " thereof respectively, shall, on con- 
 " viction thereof before a justice of 
 " the peace, forfeit and pay, over 
 " and above the value of the arti- 
 " cle or articles so stolen, or the 
 • " amount of the injury done, such 
 " sum of money not exceeding bl. 
 " as to the justice shall seem meet." 
 {Former enactmerU, 7 & 8 Geo. 4, c. 
 29, s. 40.) 
 
 Suspicious Possession. 1 — By s. 35, 
 " if the whole or any part of any 
 " tree, sapling, or shrub, or any un- 
 " derw'ood, or any part of any live 
 " or dead fence, or any post, pale, 
 " wire, rail, stile, or gate, or any 
 " part thereof, being of the value 
 " of ]«. at the least, shairbe found 
 " in the possession of any person, or 
 " on the premises of any person, 
 " with his knowledge, and such per- 
 " son, being taken or summoned be- 
 " fore a justice of the peace, shall 
 " not satisfy the justice that he 
 " came lawfully by the same, he 
 " shall on conviction by the justice 
 " forfeit and pay, over and above 
 " the value of the article or articles 
 " so found, any sum not exceeding 
 " iV (Former provision, 7 & 8 
 Geo. 4, c. 29, s. 41.) 
 
 Vegetables.] — By s. 36, " whoso- 
 
 " ever shall steal, or shall destroy 
 " or damage with intent to steal, 
 " any plant, root, fruit, or vegeta- 
 " ble production growing in any 
 " garden, orchard, pleasure ground, 
 " nursery ground, hothouse, green- 
 " house, or conservatory, shall, on 
 " conviction thereof before a jus- 
 " tice of the peace, at the discretion 
 " of the justice, either be commit- 
 " ted to the common gaol or house of 
 " correction, there to be imprisoned 
 " only, or to be imprisoned and 
 " kept to hard labour, for any term 
 " not exceeding six months, or else 
 " shall forfeit and pay, over and 
 " above the value of the article or 
 " articles so stolen, or the amount 
 " of the injury done, such sum of 
 " money not exceeding 201. as to 
 " the justice shall seem meet." 
 (Former enactment, 7 & 8 Geo. 4, c. 
 29, s. 42.) 
 
 The words " plant" and " vege- 
 table production," in that statute, 
 did not apply to young fruit trees. 
 Eex V. Bbdcfes, M. & M. 341— 
 Park and Parke. 
 
 Vegetables not growing in Gar- 
 dens.] — By s. 37, " whosoever shall 
 " steal, or shall destroy or damage 
 " with intent to steal, any cultivat- 
 " ed root orplant used forthe food of 
 " man or beast, or for medicine, or 
 " for distilling, or for dyeing, or for 
 " or in the course of any manufacture, 
 " and growing in any land, open or 
 " inclosed, not being a garden, or- 
 " chard, pleasure ground, or nurse- 
 " '■y ground, shall, on conviction 
 " thereof before a justice of the 
 " peace, at the discretion of the jus- 
 " tice, either be committed to the 
 " common gaol or house of correc- 
 " tion, there to be imprisoned only, 
 " or to be imprisoned and kept to 
 " hard labour, for any term not ex- 
 " ceeding one month, or else shall 
 " forfeit and pay over and above 
 "(the value of the article or articles 
 " so stolen, or the amount of the in- 
 " jury done, such sum of money not 
 " exceeding 20s, as to the justice 
 
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274 
 
 LARCENY AND RECEIVERS. 
 
 " shall seem meet, and in default of 
 " payment thereof, together with 
 "the costs (if ordered), shall be 
 " committed for any term not ex- 
 " ceeding one month, unless pay- 
 " ment be sooner made." (Former 
 provision, 7 & 8 Geo. 4, c. 29, s. 43.) 
 Clover was a plant used for the 
 food of beasts within this enactment. 
 Beg. V. Brumhy, 3 C. & K. 315— 
 Williams. 
 
 13. Attempts to commit Larceny. 
 
 If a person puts his hand into tjie 
 pocket of another, with intent to 
 steal what he can find there, and 
 the pocket is empty, he cannot be 
 convicted of an attempt to steal. 
 Beg. V. Collins, L. & C. 471 - 9 
 Cox, C. C. 497 ; 10 Jur., N. S. 686 ; 
 33 L. J., M. C. 177 ; 12 W. R. 886 ; 
 10 L. T., N. S. 581. 
 
 C. was in the employ of a con- 
 tractor for the supply of meat to a 
 camp, and the course of business 
 was for the meat to be sent down 
 to the camp, there weighed out to 
 the different messes, and the sur- 
 plus, if any, returned to the con- 
 tractor. C, whilst employed upon 
 this duty by the contractor, during 
 the weighing out, substituted a 
 false weight for the true one, his in- 
 tention being to carry away and 
 steal the difference between the 
 just surplus, for which he would 
 have to account to his master, and 
 the apparent surplus actually re- 
 maining after the first weighing. 
 Nothing remained upon his part to 
 complete his scheme except to car- 
 ry away and dispose of the meat, 
 which he would have done had the 
 fraud not been detected : — Held, 
 properly convicted of attempting to 
 steal the meat. Beg. v. Oheeseman, 
 
 9 Cox, C. C. 100 ; L. & C. 140 ; 8 
 Jur., N. S. 143 ; 31 L. J., M. C. 89 ; 
 
 10 W.R. 255; 5 L. T., N. S. 717. 
 An indictment for an attempt to 
 
 commit larceny which charges the 
 prisoner with attempting to steal 
 " the goods and chattels of A.," 
 without further specifying the goods 
 
 intended to be stolen, is sufficiently 
 certain. Beg. v. Johnson, L. & C. 
 489 ; 10 Cox, C. C. 13 : 34 L. J., 
 M. C. 24. 
 
 14. Subject-matter of Larceny. 
 Documents of Title to Goods.^ — 
 By 24 & 25 Vict. c. 96, " relating 
 " to larceny and other similar ot- 
 " fences, s. 1, in the interpretation 
 " of this act, the term ' document of 
 " title to goods' shall include any 
 " bill of lading, India warrant, 
 " dock warrant, warehouse keep- 
 " er's certificate, warrant or order 
 " for the delivery or transfer of any 
 " goods or valuable thing, bought 
 " and sold note, or any other docu- 
 " ment used in the ordinary course 
 " of business as proof of the posses- 
 " sion or control of goods, or author- 
 " ising or purporting to authorise, 
 " either by indorsement or by deliv- 
 " ery, the possessor of such docu- 
 " ment to transfer or receive any 
 " goods thereby represented or» 
 " therein mentioned or referred to. 
 
 Document of Title to Lands.] — 
 " The term ' document of title to 
 " lands ' shall include any deed, 
 "map, paper, or parchment, writ- 
 " ten or printed, or partly written 
 " and partly printed, being or con- 
 " taining evidence of the title, or 
 " any part of the title, to any real 
 " estate, or to any interest in or 
 " out of any real estate." 
 
 Property.] — " This term shall in- 
 " elude every description of real and 
 " personal property, money, debts, 
 " and legacies, and all deeds and in- 
 " struments relating to or evidenc- 
 " ing the title or right to any prop- 
 " erty, or giving a right to recover 
 " or receive any money or goods, 
 " and shall also include, not only 
 " such property as shall have been 
 " originally in the possession or un- 
 " der the control of any party, but 
 " also any property into for which 
 " the same may have been convert- 
 " ed or exchanged, and anything 
 
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subject-matter op larceny. 
 
 275 
 
 " acquired by such conversion or 
 "exchange, whether immediately 
 " or otherwise." 
 
 Mortgage deeds, being substitut- 
 ed securities for the payment of 
 money, are choses of action, and 
 not goods and chattels. Where, 
 therefore, a prisoner was indicted 
 for a burglary, in breaking into a 
 house at night, with intent to steal 
 the goods and chattels therein, and 
 the jury found that he broke into 
 the house with intent to steal mort- 
 gage deeds only, the conviction was 
 quashed. Reg. v. Powell, 2 Den. 
 C. C. 403; 5 Cox, C. C. 396; 16 
 Jur. 177; 21 L. J., M. C. 78. 
 
 Valuable SecuritiesJ\ — " The term 
 "'valuable security' shall include 
 " any order, exchequer acquittance, 
 " or other security whatsoever, en- 
 " titling or evidencing the title of 
 " any jjerson or body corporate to 
 " any share or interest in any pub- 
 •" lie stock or fund, whether of the 
 "United Kingdom, or of Great 
 " Britain or of Ireland, or of any 
 " foreign state, or in any fund of 
 " 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 shall also include any 
 " debenture, deed, bond, bill, note, 
 " warrant, order, or other security 
 " whatsoever for money or for pay- 
 " ment of money, whether of the 
 "United Kingdom, or of Great 
 " Britain, or of Ireland, or of any 
 " foreign state, and any document 
 " of title to lands or goods as here- 
 "inbefore defined." {^Former pro- 
 vision, 7 & 8 Geo. 4, c. 29, s. 5.) 
 
 A mortgage deed, and title deeds 
 accompanying it, constituted a se- 
 curity for money within the latter 
 statute. JReg. v. Williams, 6 Cox, 
 C. C. 49— Pktt. 
 
 An indictment charging in one 
 count the larceny of " three deeds 
 being a security for money, to wit, 
 for 20Z., of and belonging to H. 
 
 W." : and in another count the lar- 
 ceny of " three deeds, being a secur- 
 ity for the payment of money, to 
 wit, for 20/., of and belonging to H. 
 W.", is supported by proof of th^ 
 larceny of deeds of lease and release 
 from A. to B. of real estate, and of 
 a mortgage by demise of the Fame 
 property from B. to C, and held by 
 the prosecutor as executor of C. 
 Ih. 
 
 A prisoner was convicted on an 
 indictment under 24 & 25 Vict. c. 
 96, s. 27, for stealing a valuable se- 
 curity, to wit, an agreement be- 
 tween L. and C, whereby C. was en- 
 titled to receive payment of certain 
 sums of money, and which sums 
 were then due and unsatisfied to C. 
 The sums were not due till some 
 time after the stealing : — ^Held, that 
 since this section limits the terms 
 valuable security to securities other 
 than a document of title to lands, it 
 is material in an indictment under 
 this section to describe the valuable 
 security, so as to shew that it is 
 within the section that the descrip- 
 tion given ought to have been prov- 
 ed, and that, since it had not been 
 proved, the conviction could not be 
 supported. Reg. v. Lowrie, 3G L. 
 J.,M. C. 24; 1 L. R., C. C. 61. 
 
 An agreement, although unstamp- 
 ed, is a chose in action, and there- 
 fore not the subject of larceny. 
 Reg. V. Watts, Dears. C. C. 326 ; 2 
 C. L.R. 604; 18 Jur. 192; 23 L. 
 J., M. C. 56 ; 6 Cox, C. C. 304. 
 
 But by 17 & 18 Vict. c. 83, s. 
 27, " every instrument liable to 
 " stamp duty shall be admitted in 
 " evidence in any criminal proceed- 
 " ing, although it may not have the 
 " stamp required by law impressed 
 " thereon or aflixed thereto." 
 
 Value.'] — Though, tomake a thing 
 the subject of an indictment for a 
 larceny, it must be of some value, 
 and stated to be so in the indict- 
 ment, yet it need not be of the value 
 of some coin known to the law, 
 
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276 
 
 LARCENY AND RECEIVERS. 
 
 that is to say, of a farthing at the 
 least. Reg. v. Morris, 9 C. & P. 
 349— Parke. 
 
 Bills, Notes, Cheques and other 
 Securities. ] — Stealing re-issuable 
 notes after they have been paid, 
 and before they have been re-issued, 
 did not subject the party to an in- 
 dictment on 2 Geo. 2, c. 25, for 
 stealing notes ; but he might be in- 
 dicted for stealing paper with valu- 
 able stamps upon it. Hex v. Clark, 
 R. & R. C. C. 181 ; 2 Leach. C. C. 
 1036. 
 
 To obtain from a person his note 
 of hand by threatening with a knife 
 held to his throat to take away his 
 life, was not a felonious stealing of 
 the note within 2 Geo. 2, c. 25, s. 3, 
 for it never was of value to, or in 
 the peaceable possession of, such per- 
 son. Rex v. Phipoe, 2 Leach, C. 
 C. G73; 2East, P. C.599. 
 
 Country bankers' notes, which 
 had been paid by the bankers in 
 London, at whose house they were 
 made payable, and by them sent 
 down to the country bankers to be 
 re-ifsued, en the way there were 
 stolen, and the prisoner was indicted 
 forreceivingthem. The indictment 
 in some counts charged the notes to 
 be valuable securities, and in others, 
 as pieces of paper of the goods and 
 chattels of the country bankers. 
 The prisoner was convicted, and the 
 conviction held right. Some of the 
 judges doubted whether these notes 
 were to be considered as valuable se- 
 curities, but, if not, they all thought 
 they were goods and chattels. Rex 
 V. Vyse, 1 M. C. C. 218. 
 
 Exchequer bills, although signed 
 by a person not authorized to do so, 
 were securities and effects within 
 15 Geo. 2, c. 13, s. 12. Rex v. As- 
 lett, 1 N. R. 1 ; 2 Leach, C. C. 958 : 
 R. & R. C. C. 67. 
 
 The halves of country bank-notes, 
 sent in a letter, are goods and chat- 
 tels, and a person who steals them 
 is indictable for larceny. Rex v. 
 Mead, 4 C. & P. 535— Bosanquet. 
 
 A., in consequence of seeing an 
 advertisement applied to B. to raise 
 money for him, B. said he would 
 procure him 5,000Z., and produced 
 from his pocket-book ten blank 6«. 
 bill stamps, across each of which 
 A. wrote, " Accepted, payable at 
 Messrs. P. & Co., 189, P. Street, 
 London," and signed his name. B., 
 who was present, took up the stamps, 
 and nothing was said as to what 
 was to be done with them. After- 
 wards bills of exchange for oOOZ. 
 each were drawn on these stamps, 
 and B. put them into circulation : — 
 Held, that these stamps, with the 
 acceptances thus written upon them, 
 were neither bills of exchange, or- 
 ders for the payment of money, nor 
 securities for money. Rex v. Hart, 
 6 C. & P. 106— Littledale, Bolland 
 and Bosanquet. 
 
 Held, also, that a charge of lar- 
 ceny against B. for stealing the 
 stamps, and for stealing the paper 
 on which the stamps were, would- 
 not "be sustained, as this was no lar- 
 ceny, lb. 
 
 A. charged in one count with 
 stealing a cheque for 13Z. 9s. Id., 
 and in another count with stealing a 
 piece of paper value Id: — Held, 
 that, supposing the cheque to have 
 been a void cheque (as being con- 
 trary to 55 Geo. 3, c. 184), it would 
 still sustain the charge laid in the 
 second count. Reg. v. Perry, 1 
 Den. C. C. 69 ; 1 C. & K. 725. 
 
 A person might be convicted, un- 
 der 7 & 8 Geo. 4, c. 29, s. 5, if he 
 stole scrip certificates of a foreign 
 railway company, as the statute 
 extended to valuable securities for 
 the shares in the funds of a foreign as 
 well as of a British company. Reg. 
 V. Smith, Dears. C. C. 561 ; 7 Cox, 
 C. C. 93; 1 Jur., N. S. 1212; 25 
 L. J., M. C. 31. 
 
 A. was indicted for stealing 95?. 
 in money. The evidence was, that 
 he stole certain notes of a country 
 bank which were not then in circu- 
 lation, for value, but which had 
 been paid in at one branch of the 
 
 Digitized by Microsoft® 
 
LETTERS, ETC. 
 
 277 
 
 same bank, and were in course of 
 transmission to another branch, 
 where they had been originally is- 
 sued, in order that they might be 
 there re-issued or otherwise disposed 
 of: — Held, that A. was guilty of 
 larceny; and that, since 14 & 15 
 Vict. c. IOC, s. 18, the offence was 
 correctly 'described in the indict- 
 ment. Beff. V. West, 7 ,Cox, C. C. 
 183 ; Dears. & B. C. C. 109. 
 
 A servant a day or two before 
 her mistress's death got cashed a 
 cheque drawn to her mistress's or- 
 der, and which had come to her 
 mistress's house in a letter, and 
 when cashed purported to bear her 
 mistress's indorsement; and after 
 cashing it she applied the greater 
 part of it to a purpose which prob- 
 ably was directed by her mistress, 
 but had retained a small surplus, 
 and when taxed with it, just after 
 her mistress's death, she debied the 
 receipt of the cheque, the indorse- 
 ment on which was believed not to 
 be that of her mistress. The jury 
 was directed that there was no evi- 
 dence on which they could properly 
 convict her for stealing the cheque, 
 even if there was any on which 
 they could have convicted for em- 
 bezzling the surplus. lieff. v. Slings- 
 %, 4 F. & P. 61— Pollock. 
 
 Stealing a pawnbroker's dupli- 
 cate is larceny. Heff. v. Morrison, 
 Bell, C. C. 158 ; 28 L. J., M. C. 
 210; 7 W. R. 554; 33 L. T. 220; 
 8Cox, C.C. 194. 
 
 Gas.] — The prisoner had con- 
 tracted with a gas company for a 
 supply of gas. The quantity con- 
 sumed was to be measured by a 
 meter rented by the prisoner of the 
 company, and was to be paid for 
 according to such measurement. 
 The gas was conveyed from the 
 company's main through an en- 
 trance pipe (the property of the 
 prisoner) to the meter, and from 
 thence, by another pipe, called the 
 exit pipe, to the burners. The pris- 
 oner, by inserting a connecting pipe 
 
 Digitized by Microsoft® 
 
 into the entrance and exit pipes, 
 diverted the gas from the meter, 
 and thereby avoided paying for the 
 full quantity of gas consumed : — 
 Held, that this was larceny of the 
 gas ; that there was a suifioient 
 severance of the gas, at the point of 
 junction of the connecting pipe with 
 the entrance pipe, to constitute an 
 asportation ; that the property and 
 possession of the gas were in the 
 company ; and that it was immater- 
 ial whether the service pipe was the 
 property of the prisoner or the com- 
 pany. Reg. V. White, 3 & K. 
 363 ; Dears. C. C. 203 ; 6 Cox, C. 
 C. 213 ; 17 Jur. 536 ; 22 L. J., M. 
 C. 123. 
 
 15. Letters and Government Docu- 
 ments. 
 
 If A. asks B., who is not his serv- 
 ant, to put a letter in the post, tell- 
 ing him it contains money, and B. 
 breaks the seal, and abstracts the 
 money before he puts the letter in 
 the post, he is guilty of larceny. 
 Eex V. Jones, 7 C. & P. 151. 
 
 But if a person, from idle curios- 
 ity, either personal or political, 
 opens a letter addressed to another 
 person, and keeps the letter, this is 
 no larceny, even though a part of 
 his object may be to prevent the 
 letter from reaching its destination. 
 Seg. V. Godfrey, 8 C. & P. 563— 
 Abinger. 
 
 A servant of B. applied for at the 
 post-office and received all the let- 
 ters addressed to B. She delivered 
 them all to B., except one, which 
 she burned. Her motive for de- 
 stroying it was the hope of suppress- 
 ing inquiries respecting her charac- 
 ter: — Held, a larceny, and that, 
 supposing lucri caus^ to be a neces- 
 sary ingredient therein (which the 
 court did not admit), there was a 
 sufficient lucrum proved. Reg. v. 
 Jones, 1 Den. C. C. 188; 2 C & K. 
 236. 
 
 Where a letter enclosing a cheque 
 was directed to James Mucklow, 
 St. Martin's Lane, Birmingham, and 
 
278 
 
 LARCENY AND RECEIVERS. 
 
 no person of that name lived there, 
 but the prisoner lived about ten 
 yards from St. Martin's Lane, and 
 another James Mucklow lived in 
 New Hall Street ; and the prisoner, 
 in consequence of a message left by 
 the postman, got the letter from 
 the post-oftice, and appropriated the 
 cheque to his own use : — Held, that 
 it was not a felonious taking. Rex 
 V. Mucklow, Car. C. L. 280 ; 1 M. 
 C. C. 160. 
 
 A letter, containing a post-office 
 order, directed to John Uavies, was 
 misdelivered to John Davis, one of 
 the prisoners. Not being able to read, 
 he took it to W. D., the other pris- 
 oner, who read it to him. He then 
 said the letter and order were not 
 for him, but was advised by W. D. 
 to keep them and get the money. 
 Both prisoners then went to the 
 post-office, obtained the money, and 
 appropriated it to their own use : — 
 Held, that a conviction for larceny 
 of the order could not be supported. 
 Reg. V. Davis, 2 Jur., N. S. 478 ; 
 25 L. J., M. C. 91 ; Dears. C. C. 
 640. 
 
 A person who had surreptitiously 
 taken a printed document from a 
 government office, and sent it to a 
 newspaper office to be published, 
 being indicted for larceny : — Held, 
 that the question for the jiiry was 
 whether he had the object and in- 
 tention of depriving the government 
 permanently of the property in the 
 paper. Reg. v. Guernsey, 1 F. & 
 F. 394— Martin. 
 
 16. Fixtures. 
 By 24 & 25 Vict. c. 96, s. 31, 
 " whosoever shall steal, or shall rip, 
 " cut, sever or break with intent to 
 " steal, any glass or wood work be- 
 " longing to any building whatso- 
 " ever, or any lead, iron, copper, 
 " brass or other metal, or any utensil 
 " or fixture, whether made of metal 
 " or other material or of both, re- 
 " spectively fixed in or to any build- 
 " ing whatsoever, or anything made 
 " of metal fixed in any land being 
 
 " private property, or for a fence to 
 " any dwelling-house, garden or 
 " area, or in any square or street, 
 " or in any place dedicated to public 
 " use or ornament, or in any burial 
 " ground, shall be guilty of felony, 
 " and, being convicted thereof, shall 
 " be liable to be punished as in the 
 " case of simple larceny ; and in the 
 " case of any such thing fixed in 
 " any such fquare, street or place as 
 " aforesaid, it shall not be necessary 
 " to allege the same to be the prop- 
 " erty of any person." {Former pro- 
 vision, 7 & 8 Geo. 4, c. 29, s. 44.) 
 
 By 7 & 8 Geo. 4, c. 27, 4 Geo. 2, 
 c. 32, and 21 Geo. 3, c. 68, were re- 
 pealed. 
 
 The prisoners were convicted up- 
 on an indictment which charged 
 them with stealing lead fixed to a 
 certain wharf. It was proved that 
 the lead stolen formed the gutters 
 of two brick, timber and tile built 
 sheds erected upon the pi-osecutor's 
 wharf: — Held, that the conviction 
 was good, the lead being fixed to 
 a building within 7 & 8 Geo. 4, c. 
 29, s. 44. Reg. v. Rice, Bell, C. C. 
 87 ; 5 Jur., N. S. 273 ; 28 L. J., M. 
 C. 64 ; 7 W. R. 232 ; 32 L. T. 323 ; 
 8 Cox, C. C. 119. 
 
 The prisoners were convicted up- 
 on an indictment framed under 7 
 & 8 Geo. 4, c. 29, s. 44, of stealing 
 metal fixed in land. It was proved 
 that they had stolen a copper sun- 
 dial fixed upon a wooden post in a 
 churchyard : — Held, that the convic- 
 tion was right. Reg. v. Jones, Dears. 
 & B. C. C. 555 ; 4 Jur., N. S. 394 : 
 27 L. J., M. C. 171. 
 
 A person, on a count (in the usu- 
 al form) for stealing lead affixed to 
 a building, cannot be convicted of 
 lafceny ; and in order to warrant a 
 conviction on such count, the jury 
 must be satisfied that he unfixed 
 the lead from the building, or was 
 present aiding and assisting. Reg. 
 V. Gooch, 8 C & P. 293— Tindal. 
 
 An unfinished building, intended 
 as a cart-shed, which is boarded up 
 on all its sides, and has a door with a 
 
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CATn.E AND OTHER ANIM7U.S. 
 
 279 
 
 lock to it, and the frame of a roof 
 with loose gorse thrown upon it, be- 
 cause it is not yet thatched, is a 
 building within 7 & 8 Geo. 4, c. 29, 
 6. 44. Rex V. Worrall, 7 C. & P. 516 
 ' — Littledale. 
 
 Leaden images, on pedestals, fix- 
 ed in the ground near a summer- 
 house, the summer-house being in 
 an inclosed field (but not within the 
 same inclosure as the house), were 
 not within 4 Geo. 2, c. 32. Rex v. 
 Richards, R. & R. C. C. 28. 
 
 A larceny may be committed of 
 window sashes which are neither 
 hung nor beaded into the frames, 
 but merely fastened by laths nailed 
 across the frames to prevent their 
 shaking out ; as they are not fixed 
 to the freehold. Rex v. Hedges, 1 
 Leach, C. C. 201 ; 2 East, P. C. 
 590, n. 
 
 A church was a building within 
 4 Geo. 2, c. 32. Rex v. Hickman, 
 1 Leach, C. C. 318 ; 2 East, P. C. 
 593 ; S. P., Rex v. Parker, 2 East, 
 P. C. 592 ; 1 Leach, C. C. 320, n. 
 
 Stealing iron rails from a tomb 
 in a churchyard, not connected by 
 any building to the church, was not 
 within 4 Geo. 2, c. 32, and 21 Geo. 
 
 3, c. 68. Rex V. Davis, 2 East, P. 
 C. 593 ; 1 Leach, C. C. 496, n. 
 
 Semble, that the stealing of brass 
 fixed to tomb-stones in a church- 
 yard was a felony under 7 & 8 Geo. 
 
 4, c. 29, s. 44. Rex v. Blick, 4 C. 
 & P. 377— Bosanquet. 
 
 But a copper sun-dial, fixed on 
 the top of a wooden post standing 
 in a churchyard, was metal fixed in 
 land in a place dedicated to public 
 use, and the subject of larceny with- 
 in 7 & 8 Geo. 4, c. 29, s. 44. Reg. 
 V. Jones, 7 Cox, C. C. 498— C. C. R. 
 
 A person who procured possession 
 qf a house, under a written agree- 
 ment between him and the land- 
 lord, for a lease of twenty-one years, 
 . with a fraudulent intention to steal 
 the fixtures thereto belonging, was, 
 by stealing the lead affixed to the 
 house, guilty of larceny on 4 Geo. 
 
 2, c. 32. Rex v. Munday, 2 Leach, 
 C. C. 850 ; 2 East, P. C. 594. 
 
 An indictment for stealing a cop- 
 per pipe fixed to the dwelling-house 
 of A. and B., is not supported by 
 proof of stealing a pipe fixed to two 
 rooms of which A. and B. are sep- 
 arate tenants in the same house. 
 Rex V. Finch, 1 M. 0. C. 418. 
 
 In support of an indictment for 
 stealing lead 'fixed to a dwelling- 
 house, proof that the prosecutor re- 
 ceived the rent is suificient primS. 
 facie evidence of his ownership. 
 Reg. V. Brummitt, L. & C. 9 ; 8 
 Cox, C. C. 413; 9 W. R. 357; 3 
 L. T., N. S. 679. 
 
 Where a yearly tenant of a house 
 had at his own expense, during his 
 term, hung bells, but quitted the 
 premises, without removing them : 
 — Held, that by remaining fixed to 
 the freehold after the expiration of 
 the term, they became the property 
 of the landlord, and that the tenant 
 could not maintain trover for them 
 after the landlord had severed them 
 from the freehold. Lyde v. Russell, 
 1 B. & Ad. 394. 
 
 17. Cattle and other Animals. 
 
 (a) Statute. 
 
 By 24 & 25 Vict. c. 96, s. 10, 
 " whosoever shall steal any horse, 
 " mare, gelding, colt or filly, or any 
 " bull, cow, ox, heifer or calf, or any 
 " ram, ewe, sheep or lamb, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for any 
 " term not exceeding fourteen years, 
 " and not less than five years (27 & 
 " 28 Vict. c. 47), or to be imprison- 
 " ed for any term not exceeding 
 " two years, with or without hard 
 " labour, and with or without sol- 
 " itary confinement." Previous pro- 
 vision, 7 & 8 Geo. 4, c. 29, s. 25.) 
 
 . (b) Horse-Stealing. 
 What is.] — If a horse is purchas- 
 
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280 
 
 LARCENY AND RECEIVERS. 
 
 ed by and delivered to the buyer, it 
 is not felony though he immediately 
 rides away with it without paying 
 the purchase-money. Bex v. Har- 
 vey, 1 Leach, C. C. 467 ; 2 East, P. 
 C. 669. 
 
 But obtaining a horse under the 
 pretext of hiring it for a day, and 
 immediately selling it, is felony, if 
 the jury finds the hiring was animo 
 furandi. Rex v. Pear, 1 Leach, C. 
 C. 212; 2 East, P. C. 685, 697. 
 And see Rex v. Tunnard, 2 East, P. 
 C. 687 ; 1 Leach, C. C. 214, n. 
 
 If a thief goes to an inn, and, in- 
 tending to steal a horse, directs the 
 ostler to bring out his horse, point- 
 ing to that of the prosecutor, and 
 the ostler, at his desire, leads out 
 the horse for the prisoner to mount : 
 this is a sufficient taking by the pris- 
 oner to support an indictment for 
 horse-stealing. Rex v. Pitman, 2 
 C. & P. 423-Garrow. 
 
 Where the prisoners having en- 
 tered a stable at night, and taking 
 out horses, rode them thirty-two 
 miles, and then left them at an inn, 
 and were afterwards found pursu- 
 ing their journey on foot ; and the 
 jury found that they took the horses 
 merely with intent to ride and 
 afterwards to leave them and not to 
 return or make any further use of 
 them : — Held, that this was a tres- 
 pass and not a larceny. Rex v. 
 PhiUips, 2 East, P. C. 662. 
 
 A prisoner received the prosecut- 
 or's horse to be agisted, and after a 
 short time sold it : — Held not larce- 
 ny. Rex V. Smith, 1 M. C. C. 473. 
 
 A., who intended to sell his mare, 
 sent his servant to M. fair, his serv- 
 ant having no authority either to sell 
 the mare, or deal with her in any way. 
 The prisoner asked the servant the 
 price, and desired the servant to trot 
 her out ; and the prisoner then went 
 to two men, and, having talked to 
 them walked away. These two 
 men then came up and persuaded 
 the servant to exchange tlie mare 
 for a horse they had, and they 
 would give 2U. for the chop. They 
 
 changed the saddles, and, without 
 giving any money, rode away with 
 the mare, leaving the servant with 
 a horse of little value. Four days 
 after the prisoner sold the mare at 
 B., stating that he had got her in a 
 chop at M. fair : — Held, that, as the 
 servant had the mere charge of the 
 mare, and had no right to deal with 
 the property in her, the prisoner 
 ought to be convicted of stealing 
 her, providing that the jury was 
 satisfied that the prisoner was in 
 league with the two other men, and 
 that the three, by a fraud in which 
 each of them was to take his part 
 and did take his part, induced the 
 servant to part with possession of 
 the mare under colour of exchange, 
 but they intended all the while to 
 steal the mare. Reg. v. Sheppard, 
 9 C. & P. 121— Coleridge. 
 
 If a person stealing other property 
 takes a horse, not with the intent to 
 steal it, but only to get off more 
 conveniently with the other prop- 
 erty which he has stolen, such tak- 
 ing of the horse is not a felony. 
 Rex V. Crump, 1 C. & P. 658 — 
 Garrow. 
 
 Indictment. ^ — In an indictment for 
 horse-stealing, the animal, whether 
 a horse, mare, gelding, colt or filly, 
 may be desci-ibed as a horse. Reg. 
 V. Aldridge, 4 Cox, C. C. 143 — 
 Erie. 
 
 Foals and fillies were within 2 & 
 3 Edw. 6, c. 33, and were included 
 in the words horse, gelding or mave, 
 and evidence of stealing a mare fil- 
 ly supported an indictment for steal- 
 ing a mare. Rex v. Welland, R. <fc 
 R. C. C. 494. 
 
 By 7 & 8 Geo. 4, c. 29, s. 25, if 
 any person shall steal any horse, 
 mare, &c., or shall wilfully kill any 
 of such cattle with intent to steal the 
 carcase, every such offender shall 
 be guilty of felony, and on convic- 
 tion suffer death. The 2 & 3 Will. 
 4, c. 62, s. 1 , reduced the punish- 
 ment to transportation for life ; and 
 7 Wm. 4 & 1 Vict. c. 90, s. 1, to 
 
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SHEEP STEALING. 
 
 281 
 
 transportation for not less than fif- 
 teen years. An indictment charg- 
 ed a person with feloniously stealing 
 a mare, saddle and bridle, and did 
 not conclude contra formam statuti. 
 A verdict of guilty was found : — 
 Held, that, as stealing the mare, as 
 well as stealing the saddle and bri- 
 dle, was a felony at common law, 
 and not created or altered in its na- 
 ture by statute, the offence was cor- 
 rectly described in the indictment, 
 and the statutable punishment of 
 fifteen years' transportation would 
 attach to the stealing the mare. 
 Williams v. Reg. (in error), 7 Q. B. 
 251. 
 
 Evidence. J — Two, indicted for 
 horse-stealing in county A., were 
 found in joint possession of two 
 horses in that county, which they 
 had jointly taken at different times 
 and places in county B. : — Held, 
 that evidence could be given of one 
 only of the takings in county B., 
 each taking being a separate felony. 
 Bex V. Smith, R. & M. 295— Little- 
 dale. 
 
 Indictment for stealing two horses 
 in Kent ; the only evidence of steal- 
 ing in Kent was that the constable 
 having taken the prisoner in Surrey, 
 and the prisoner having offered on 
 some pretence to go to a place in 
 Kent, the constable and the prisoner 
 rode the horses there, and the pris- 
 oner escaped, leaving the horses 
 with the constable : — Held, not suf- 
 ficient. Rex V. Simmonds, 1 M. C. 
 C. 408. 
 
 A. had agisted his horse with B., 
 and in consequence of hearing of 
 the loss of it, A. went to the field 
 of B., where it was not : — Held, to 
 be not sufiScient proof of loss to sup- 
 port an indictment for horse-steal- 
 ing. Rex V. Tend, 6 C. & P. 176— 
 Gurney. 
 
 (c) - Cattle. 
 
 Leach, C. C. 105 ; 2 East, P. C. 616. 
 
 The beast, however old, is a heif- 
 er until she has had a calf. lb. 
 
 The phrase bullock-stealing, in 7 
 Geo. 4, c. 64, s. 28, relating to the 
 allowance of rewards in certain 
 cases for the discovery of offenders, 
 includes all cases of cattle-stealing 
 of that particular description, e. g. 
 ox, cow, heifer, &c. Rex v. Gul- 
 7 C. & P. 445. 
 
 An indictment for stealing a cow 
 cannot be supported by evidence of _ . . 
 
 (d) Sheep-Stealing. 
 
 An indictment for stealing a 
 sheep is supported by proof of steal- 
 ing a ewe or a ram, though the 
 statute specifies " ram, ewe, sheep 
 or lamb." Reg. v. M'Culley, 2 M. 
 C. C. 34 ; 2 Lewin, C. C. 272. 
 
 A sheep was called in the indict- 
 ment a ewe, and; by the witnesses, 
 the proper name was said to be a 
 ewe teg : — Held, that the description 
 was bad. Reg. v. Jewett, 2 Cox, C. 
 C. 227— Pollock. 
 
 On the trial of an indictment un- 
 der 7 & 8 Geo. 4, c. 29, s. 25, for 
 stealing " one sheep," some of the 
 witnesses stated the animal to be a 
 sheep, others a lamb. It was be- 
 tween nine and twelve months old ; 
 and the jury who convicted the 
 prisoner found, that, in common 
 parlance, according to the usual 
 mode of describing such animals, it 
 would be called a lamb. Convic- 
 tion held right, the word " sheep" 
 being general. Reg. v. Spicer, 1 C. 
 & K. 699 ; 1 Den. C. C. 82. 
 
 On an indictment for sheep-steal- 
 ing, a rig sheep is properly described 
 as " one sheep." Rex v. Stroud, 6 
 C. & P. 535— Alderson. 
 
 A prisoner was indicted for sheep, 
 stealing. The prosecutor lost a 
 sheep in September; it was found 
 in the prisoner's possession in the 
 March following. There was no 
 other evidence of larceny than the 
 possession : — Held, that the period 
 between the loss and the finding 
 was too long to permit the case to 
 go to the jury. Reg. v. Harris, 8 
 
282 
 
 LARCENY AND RECEIVERS. 
 
 Wlere a prisoner was found in 
 the recent possession of some stolen 
 sheep, of which he could give no 
 satisfactory account, and it might 
 reasonably be inferred from the cir- 
 cumstances that he did not steal 
 them himself : — Held, that there 
 was evidence for the jury that he 
 received them knowing them to 
 have been stolen. Req. v. Lang- 
 mead, L. & C. 427 ; 9' Cox, C. C. 
 464; 10 L. T., N. S. 350. 
 
 A. being tried for sheep-stealing, 
 it was proposed to call the wife of 
 B. to prove that A. and B. had 
 jointly stolen the sheep, B. having 
 been convicted of it at the previous 
 quarter sessions : — Held, that she 
 was a competent witness. Reg. v. 
 Williams, 8 C. & P. 284 — Alderson. 
 
 If a man kills a sheep in county 
 A., and carries the carcase into 
 county B., he may be convicted up- 
 on an indictment for stealing, tak- 
 ing and driving away sheep into 
 county B. If a man kills a sheep 
 in county A., and carries the carcase 
 into county B., he cannot be con- 
 victed of killing the sheep with in- 
 tent to kill the carcase in county B. 
 Reg. V. Neioland, 2 Cox, C. C. 283. 
 
 (e) Deer. 
 
 Stealing Deer in unindosed For- 
 esfe.]— By 24 & 25 Vict. c. 96, s. 
 12, " whosoever shall unlawfully 
 " and wilfully course, hunt, snare 
 " or carry away, or kill or wound, 
 " or attempt to kill or wound, any 
 " deer kept or being in the unin- 
 " closed part of any forest, chase 
 " or purlieu, shall for every such 
 " offence, on conviction thereof be- 
 " fore a justice of the peace, forfeit 
 " and pay such sum, not exceeding 
 " 50?., as to the justice shall seem 
 "meet; and whosoever having been 
 '' previously convicted of any offence 
 " relating to deer, for which a pecu- 
 " niary penalty shall have been im- 
 " posed by this or by any former 
 " act of Parliament, shall after- 
 *' wards commit any of the offences 
 " hereinbefore enumerated, whether 
 
 " such second offence be of the 
 " same description as the first or 
 " not, shall be guilty of felony, and 
 " being convicted thereof shall be 
 " liable, at the discretion of the 
 " court, to be imprisoned for any 
 " teiTU not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment, and, if a male under the 
 " age of sixteen years, with or 
 " without whipping." {Former pro- 
 vision, 7 & 8 Geo. 4, c. 29, s. 26.) 
 
 In inclosed Cfrounds.] — ^By s. 13, 
 " whosoever shall unlawfully and 
 " wilfully course, hunt, snare or 
 " carry away, "or kill or wound, or 
 " attempt to kill or wound, any 
 " deer kept or being in the inclosed 
 " part of any forest, chase or pur- 
 " lieu, or in any inclosed land where 
 " deer shall be usually kept, shall 
 " be guilty of felony," and, being 
 " convicted thereof, shall be liable, 
 " at the discretion of the court, to 
 " be imprisoned for any term not 
 " exceeding two years, with or 
 " without hard labour, and with or 
 " without solitary confinement, and 
 " if a male under the age of sixteen 
 " years, with or without whipping." 
 {Former provision, 7 & 8 Geo. 4, 
 c. 29, 6. 26.) 
 
 Unlawful Possession of Veni- 
 son.2 — " As to what is a suspicious 
 " possession of venison," see s. 14. 
 
 Setting Engines for Taking or 
 KUling.~\ — By s. 15, " whosoever 
 " shall unlawfully and wilfully set 
 " or use any snare or engine what- 
 " soever, for the purpose of taking 
 " or killing deer, in any part of any 
 "forest, chase or purUeu, whether 
 " such part be inclosed or not, or in 
 " any fence or -bank dividing the 
 " same from any land adjoining, or 
 "in any inclosed land where deer 
 " shall be usually kept, or shall un- 
 " lawfully and wilfully destroy any 
 " part of the fence of any land 
 " where any deer shall be then 
 
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DEER. 
 
 283 
 
 " kept, shall, on conviction thereof 
 " before a justice of the peace, for- 
 " feit and pay such sum of money, 
 "not exceeding 20/., as to the just- 
 " ice shall seem meet." {Former 
 provision, 7 & 8 Geo. 4, c. 29, s. 
 28.) 
 
 The 7 & 8 Geo. 4, c. 27, repealed 
 21 Edw. 1, Stat. 2; 16 Geo. 3, c. 
 30 ; 42 Geo. 3, c. 107 ; 51 Geo. 
 
 3, c. 120 ; and so much of the 
 Carta de Foresta, and of 3 Edw. 
 1, c. 20; 1 Edw. 3, stat.l, as re- 
 lated to this subject ; and 24 & 
 25 Vict. c. 95, repeals 7 & 8 Geo. 
 
 4, c. 29. 
 
 What is Deer.] — The term deer 
 includes all kinds of deer, all ages 
 and both sexes. JReg. v. Strange, 
 1 Cox, C. C. 58— Maule. 
 
 Ihclosicres.] — An inclosure in the 
 Forest of Dean, made under a stat- 
 ute, for the protection of timber, 
 and surrounded by a ditch and a 
 bank, which were sufficient to pre- 
 vent cattle from getting into it, but 
 over which the deer could pass in 
 or out at their free will, was an in- 
 closed part of a forest, witliin 7 & 
 8 Geo. 4, c. 29, s. 26. Beg. v. 
 Money, 2 Russ. C. & M. 371— Erie. 
 
 The words " wherein deer shall 
 be usually kept " refer to inclosed 
 land only. lb. 
 
 Convictions.] — On an indictment 
 under 7 & 8 Geo. 4, c. 29, s. 26, 
 for killing a deer after a previous 
 summary conviction, .a conviction 
 by two justices of the previous of- 
 fence was put in : — Held, that such 
 a conviction was good. Hex v. 
 Weale, 5 C. & P. 135— Park. 
 
 Upon an indictment for a second 
 oifence against 42 Geo. 3, c. 107, 
 by killing deer, objections might 
 have been taken to the conviction 
 for the first offence, that it was not 
 in the proper county, and that it 
 was not correctly stated in the in- 
 dictment for the second offence. 
 Hex V. AUen, R. & R^C.-.C 51?. 
 
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 A commitment under 7 & 8 Geo. 
 4, c. 29, s. 26, reciting a conviction 
 that the defendant " did unlawfully 
 kill and carry away one fallow 
 deer, the property of her Majesty 
 Queen Victoria, against the form 
 of the statute," was bad for omit- 
 ting to state that the deer was in 
 the uninclosed part of some forest, 
 chase or purlieu. Heg. v. King, 1 
 D. & L. 721 ; 8 Jur. 271 ; 13 L. J., 
 M. C. 43— B. C— Patteson. 
 
 Deer Keepers.] — By 24 & 25 
 Vict. c. 96, s. 16, "if any person 
 " shall enter into any forest, chase 
 " or purUeu, whether inclosed or 
 " not, or into any inclosed land 
 " where deer shall be usually kept, 
 " with intent unlawfully to hunt, 
 " course, wound, kill, snare or car- 
 " ry away any deer, every person 
 " intrusted with the care of such 
 " deer, and any of his assistants, 
 " whether in his presence or not, 
 " may demand from every such of- 
 " fender any gun, firearms, snare or 
 " engine in his possession, and any 
 " dog there brought for hunting, 
 " coursing or killing deer, and in 
 " case such offender shall not im- 
 " mediately deliver up the same, 
 " may seize and take the same from 
 " him in any of those respective 
 " places, or, upon pursuit made, in 
 " any other place to which he may 
 " have escaped therefrom, for the 
 " use of the owner of the deer ; 
 " and if any such offender shall 
 " unlawfully beat or wound any 
 " person intrusted with the care of 
 " the deer, or any of his assistants, 
 " in the execution of any of the 
 " powers given by this act, every 
 " such offender shall be guilty of 
 " felony, and being convicted there- 
 " of shall be liable, at the discretion 
 " of the court, to be imprisoned for 
 " any term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment, and, if a male under the 
 " age of sixteen years, with or 
 
 without whipping." {Former en- 
 
•284 
 
 LARCENY AND RECEIVERS. 
 
 actment, 7 & 8 Geo. 4, c. 29, s. 29.) 
 
 The 16 Geo. 3, c. 30, s. 9, author- 
 ized the seizing the guns of persons 
 carrying them into grounds where 
 deer are usually kept, with intent 
 to destroy them, and made the 
 beating or wounding the keepers, 
 in the due execution of their oiKces, 
 felony : — Held, that an assistant- 
 keeper had no right to seize the 
 person of one so armed in order to 
 get his gun, without having first 
 demanded his gun ; and, conse- 
 quently, if such person beat the 
 keeper it was not within the statute, 
 the keeper not being in the due ex- 
 ecution of his office. Hex v. Amey, 
 R. & R. C. C. 500. 
 
 Pulling a deer -keeper to the 
 ground and holding him there while 
 another person escapes, is not a heat- 
 ing of the deer-keeper within 7 & 
 8 Geo. 4, c. 29, s. 29. Meg. v 
 Sale, 2 C. & K. 326— Maule. 
 
 A mere battery is not sufficient to 
 come within this enactment. lb. 
 
 There must be a beating in the 
 popular sense of the word. Tb. 
 
 (f ) Doves or Pigeons. 
 
 By 24 & 25 Vict. c. 96, s. 23, 
 "whosoever shall unlawfully and 
 " wilfully kill, wound or take any 
 " house-dove or pigeon under such 
 " circumstances as shall not amount 
 " to larceny at common law, shall 
 " on conviction before a justice of 
 " the peace, forfeit and pay, over 
 " and abofve the value of tlie bird, 
 " any sum not exceeding IV [For- 
 mer provision, 7 & 8 Geo. 4, c. 29, 
 s. 33.) 
 
 This enactment does not apply 
 where the killing, though unlaw- 
 ful, is done by the party for the 
 protection of his own property, and 
 under the bonS. fide belief that he 
 is acting in the exercise of a legal 
 right. Taylor v. Nevyman, 4 B. & 
 S. 69 ; 9 Cox, C. C. 314 ; 32 L. J., 
 M. C. 186 ; 11 W. R. 752 ; 8 L. 
 T., N. S. 424. 
 
 Pigeons kept in Sn ordinary dove- 
 cote, having liberty of ingress and 
 
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 egress at all times by means of 
 holes at the top, may be the sub- 
 jects of larceny. Beg. v. Cheafor, 
 2 Den. C. C. 361 ; 5 Cox, C. C. 
 367; 21L. J., M. C. 43. 
 
 (g) Fish. 
 
 By 24 & 25 Vict. c. 96, s. 24, 
 " whosoever shall unlawfully and 
 " wilfully take or destroy any fish 
 " in any water which shall run 
 " through or be in any land ad- 
 " joining or belonging to the dwell- 
 " ing-house of any person being the 
 " owner of such water, or having 
 " a right of fishery therein, shall 
 " be guilty of a misdemeanor ; 
 
 " And whosoever shall unlaw- 
 " fully and wilfully take or destroy, 
 " or attempt to take or destroy, 
 " any fish in any water not being 
 " such as hereinbefore mentioned, 
 " but which shall be private pi-op- 
 " erty, or in which there shall be 
 " any private right of fishery, shall, 
 " on conviction thereof before a 
 "justice of the peace, forfeit and 
 " pay, over and above the value of 
 " the fish taken or destroyed (if 
 " any), such sum of money, not ex- 
 "ceeding 5^., as to the justice shall 
 " seem meet : provided, that noth- 
 " ing hereinbefore contained shall 
 " extend to any person angling be- 
 " tween the beginning of the last 
 " hour before sunrise and the ex- 
 " piration of the first hour after 
 " sunset ; but whosoever shall by 
 " angling between the beginning of 
 "the last hour before sunrise and 
 "the expiration of the first hour 
 " after sunset unlawfully and wil- 
 " fully take or destroy, or attempt 
 " to take or destroy, any fish in any 
 " such water as first mentioned, 
 " shall, on conviction before a jus- 
 " tice of the peace, forfeit and pay 
 " any sum not exceeding 5^., and if 
 " in any such water as last men- 
 "tioned he shall, on the like con- 
 " viction, forfeit and pay any sum, 
 " not exceeding 11., as to the justice 
 " shall seem meet ; and if the 
 boundary of any parish, town- 
 
FISH. 
 
 285 
 
 " ship or vill shall happen to be in 
 " or by the side of any such water 
 "as is in this section before raen- 
 "tioned, it shall be sulfioient to 
 "prove that the oifence was com- 
 " mitted either in the parish, town- 
 " ship, or vill named in the indict- 
 " raent or information, or in any 
 " parish, township, or vill adjoin- 
 " ing thereto." (jForiner provision, 
 
 7 & 8 Geo. i, c. 29, s. 36.) 
 By s. 25, " if any person shall at 
 
 " any time be found fishing against 
 " the provisions of this act, the 
 " owner of the ground, water, or 
 " fishery where such offender shall 
 " be so found, his servant, or any 
 " person authorised by him, may 
 " demand from such offender any 
 " rod, line, hook, net, or other im- 
 " plement for taking or destroying 
 " tish which shall then be in his 
 " possession ; and in case such of- 
 " fender shall not immediately de- 
 " liver up the same, may seize and 
 " take the same from him for the 
 " use of such owner : provided, 
 " that any person angling against 
 " the provisions of this act, be- 
 " tween the beginning of the last 
 " hour before sunrise and the ex- 
 " piration of the first hour after 
 " sunset, from whom any imple- 
 " ment used by anglers shall be 
 " taken, or by whom the same 
 " shall be so delivered up, shall by 
 " the taking or delivering thereof 
 " be exempted from the payment 
 " of any damages or penalty for 
 " such angling." (Simtlar to 7 & 
 
 8 Geo. 4, c. 29, s. 35.) 
 By s. 26, " whosoever shall steal 
 
 " any oysters or oyster brood from 
 " any oyster bed, laying, or fishery, 
 " being the property of any other 
 " person, and sufficiently marked 
 " out or known as such, shall be 
 " guilty of felony, and being con- 
 " victed thereof "shall be liable to 
 " be punished as in the case of 
 " simple larceny ; 
 
 " And whosoever shall unlaw- 
 " fully and wilfully use any dredge. 
 
 " whatsoever, within the limits of 
 " any oyster bed, laying or fishery, 
 " being the property of any other 
 " person, and sufficiently marked 
 " out or known as such, for the 
 " purpose of taking oysters or oys- 
 " ter brood, although none shall be 
 " actually taken, or shall unlaw- 
 " fully and wilfully, with any net, 
 " instrument, or engine, drag upon 
 " the ground or soil of any such 
 " fishery, shall be guilty of a mis- 
 " demeanor, and being convicted 
 " thereof shall be liable, at the dis- 
 " cretion of the court, to be impris- 
 " oned for any term not exceeding 
 " three months, with or without 
 " hard labour, and with or without 
 " solitary confinement ; 
 
 " And it shall be sufficient in 
 " any indictment to describe either 
 " by name or otherwise the bed, 
 " laying, or fishery in which any of 
 " the said offences shall have been 
 " committed, without stating the 
 " same to be in any particular par- 
 " ish, township or vill : provided, 
 " that nothing in this section con- 
 " tained shall prevent any person 
 " from catching or fishing for any 
 " floating fish within the limits of 
 " any oyster fishery with any net, 
 " instrument, or engine adapted for 
 " taking floating fish only." 
 
 The 7 & 8 Geo. 4, c. 27, repealed 
 the 31 Hen. 8, c. 2 ; 5 Eliz. c. 21 ; 
 5 Geo. 3, c. 14 ; and 24 & 25 Vict, 
 c. 95, repeals 7 & 8 Geo. 4, c. 29 ; 
 and 7 Will. 4 & 1 Vict. c. 90, s. 5. 
 
 Semble, an indictment on 5 Geo. 
 3, c. 14, s. 1, for stealing fish out 
 of a river running through an in- 
 closed park, need not have stated 
 the ways, means, or devices by 
 which the fish were taken. Hex v. 
 Carradice, K. & R. C. C. 205. 
 
 On an indictment on 5 Geo. 3, c. 
 14, s. 1, for entering an inclosed 
 park, and taking fish bred, kept, 
 and preserved there, in the river 
 Kent, running through the park, it 
 appeared that the park was walled 
 round, except where the river en- 
 . tered and passed out, and that 
 Microsoft® 
 
286 
 
 LARCENY AND RECEIVERS. 
 
 there were fences to keep in the 
 deer, thiat there was nothing to 
 keep in the fish, that they were not 
 known to breed there, that nothing 
 was done to stock the river, but 
 that persons were never suifered to 
 angle in the park without leave : 
 — Held, that this was not a place 
 where fish were to be considered as 
 " bred, kept, or preserved " within 
 the meaning of the act. Ih. 
 
 A defendant formed an oyster- 
 bed in a part of the Menai Straits 
 where persons had been accustomed 
 to dredge for oysters. The plaintiff 
 bought of a dredger a quantity of 
 oysters, when the defendant, having 
 been informed that the oysters were 
 taken from his bed, gave the plaint- 
 iff into custody on a charge of hav- 
 ing in his possession stolen oysters. 
 The plaintiff having been discharg- 
 ed, brought an action for false im- 
 prisonment, when the defendant re- 
 lied on 7 & 8 Geo. 4, c. 29, s. 36: 
 and, in order to shew that he acted 
 bona fide and under the belief that 
 the oysters were stolen, he tendered 
 in evidence the record of the con- 
 viction of a person who had shortly 
 before been tried for taking oysters 
 from the same bed of the defend- 
 ant : — Held, that the record, mere- 
 ly 3,s Fuch, was inadmissible. Thom- 
 as V. Bussell, 9 Exch. 764 ; 2 C. L. 
 R. "542 ; 23 L. J., Exch. 233. 
 
 Objection to a conviction for un- 
 lawfully taking and killing fish, in 
 that it did not allege that the de- 
 fendant had not the license or con- 
 sent of the owner ; but that it mere- 
 . . ly alleged that he took and killed 
 the fish unlawfully and against the 
 form of the statute, is good, and 
 therefore it was quashed. liex v. 
 Mallinson, 2 Burr. 679 ; 2 Ld. Ken- 
 yon, 384. 
 
 A stream of water running by 
 the side of a piece of ground, which 
 is inclosed on every side except that 
 on which it is bounded by the water, 
 was not a stream in inclosed ground, 
 " within 5 Geo. 3, c. 14, s. 3, so as to 
 subject a person fishing therein to 
 
 the penalty inflicted by that act. 
 Lisk V. Brown, 1 Marsh. 127 ; 5 
 Taunt. 440. 
 
 A person who fished in a fishery 
 belonging to another, but to which 
 he had a claim, for the purpose of 
 giving occasion to an action in or- 
 der to try the right, was not liable 
 to a penalty under 5 Geo. 3, c. 14. 
 Kinnersley v. Or-pe, 2 Dougl. 517. 
 
 A conviction under 5 Geo. 3, c. 
 14, for killing fish in a private river, 
 without the consent of the owner, 
 should state the offence to have 
 been committed in an inclosed 
 ground. Wickes v. Glutterhuck, 10 
 Moore, 63; 2 Ring. 483; ,S'. P., 
 Rex V. Sadler, 2 Chit. 519. 
 
 And that it was without the con- 
 sent of such owner. Rex v. Daman, 
 2 B. & A. 378 ; 1 Chit. 147 : S. P., 
 Rex V. Garden, 4 Burr. 2279. 
 
 So, a conviction on the same stat- 
 ute, for fishing without consent of 
 the owner, " in part of a certain 
 stream, which runs between B. in 
 the parish of A., in the county of 
 W., and C, in the same parish and 
 county," qua.shed, because it did 
 not appear that the intermediate 
 course of the stream betwen the two 
 termini in which the offence was al- 
 leged to be committed was in the 
 county of W., and within the juris- 
 diction of the convicting magistrate. 
 Rex V. Edwards, \ East, 278. 
 
 (h) Bogs. 
 By 24 & 25 Vict. c. 96, s. 18, 
 whosoever shall steal any dog 
 shall, on conviction thereof before 
 two justices of the peace, either 
 be committed to the common gaol 
 or house of correction, there to be 
 imprisoned, or to be imprisoned 
 and kept to hard labour, for any 
 term not exceeding six months, or 
 shall forfeit and pay, over and 
 above the value of the said dog, 
 such sum of money, not exceed- 
 ing 20/., as to the said justices 
 shall seem meet; and wiiosoever, 
 having been convicted of any such 
 offence, either against this or any 
 
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BIRDS AND OTHER ANIMALS. 
 
 287 
 
 "former act of Parliament, shall 
 " afterwards steal any dog, shall be 
 " guilty of a misdemeanor, and 
 " being convicted thereof shall be 
 " liable, at the discretion of the 
 " court, to be imprisoned for any 
 "term not exceeding eighteen 
 " months, with or without hard la- 
 " bour." [Former provision, % & 9 
 Vict. c. 47, s. 2.) 
 
 By s. 19, "whosoever shall un- 
 " lawfully have in his possession or 
 " on his premises any stolen dog, or 
 " the skin of any stolen dog, know- 
 " ing such dog to have been stolen 
 " or such skin to be the skin of a 
 " stolen dog, shall, on conviction 
 " thereof before two justices of the 
 " peace, be liable to pay such 
 " sum of money, not exceeding 20/., 
 " as to such justices shall seem 
 " meet ; and whosoever, having 
 " been convicted of any such offence, 
 " either against this or any former 
 " act of Parliament, shall after- 
 " wards be guilty of any such of- 
 " fence as in this section before 
 " mentioned, shall be guilty of a 
 " misdemeanor, and being convicted 
 " thereof shall be liable, at the dis- 
 " cretion of the court, to be impris- 
 " oned for any term not exceeding 
 " eighteen months, with or without 
 " hard laboui'." (Former provision, 
 8 & 9 Vict. c. 47, s. 3.) 
 
 By s. 20, " whosoever shall cor- 
 " ruptly take any money or reward, 
 " directly or indirectly, under pre- 
 " tence or upon account of aiding 
 " any person to recover any dog 
 " which shall have been stolen, or 
 " which shall be in possession of any 
 " person not being the owner there- 
 " of, shall be guilty of a misdemean- 
 " or, and being convicted thereof 
 " shall be liable, at the discretion of 
 " the court, to be imprisoned for 
 " any term not exceeding eighteen 
 " months, with or without hard la- 
 " bour." [Former provision, 7 & 8 
 Vict. c. 47, s. 4.) 
 
 Dogs are not the subject-matter of 
 larceny at common law. Meg. v. 
 
 RoKnson, Bell, C. C. 34 ; 5 Jur., N. 
 S. 203 ; 28 L. J., M. C. 08. 
 
 (i) Birds and other Animals. 
 
 By s. 21, " whosoever shall steal 
 " any bird, beast, or other animal 
 " ordinarily kept in a state of con- 
 " finement or for any domestic pur- 
 " pose, not being the subject of lar- 
 " ceny at common law, or shall wil- 
 " fully kill any such bird, beast or' 
 "animal, with intent to steal the 
 " same or any part thereof, shall, 
 " on conviction thereof before a jus- 
 " tice of the peace, at the discretion 
 " of the justice, either be committed 
 " to the common gaol or house of 
 " correction, there to be imprisoned 
 "only, or to be imprisoned and 
 " kept to hard labour for any term 
 " not exceeding six months, or else 
 " shall forfeit and pay, over and 
 " above the value of the bird, beast, 
 " or other animal, such sum of mon- 
 " ey not exceeding 20/. as to the just- 
 " ice shall seem meet ; and whoso- 
 " ever, having been convicted of 
 " any such offence, either against 
 " this or any former act of Parlia- 
 " ment, shall afterwards commit 
 " any offence in this section before 
 " mentioned, and shall be convicted 
 " thereof in like manner, shall be 
 " committed to the common gaol 
 " or house of correction, there to be 
 " kept to hard labour for such term 
 " not exceeding twelve months as 
 " the convicting justice shall think 
 " fit." 
 
 By s. 22, " if any such bird, or any 
 " of the plumage thereof, or any dog, 
 " or any such beast, or the skin there- 
 " of, or any such animal, or any 
 " part thereof, shall be found in the 
 " possession or on the premises of 
 " any person, any justice may re- 
 " store the same respectively to the 
 " owner thereof; and any person 
 " in whose possession or on whose 
 " premises such bird or the plumage 
 " thereof, or such beast or the skin 
 " thereof, or such animal or any 
 " part thereof, shall be so found 
 
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288 
 
 LARCENY AND RECEIVERS. 
 
 " (such person knowing that the 
 "bird, beast, or animal has been 
 " stolen, or that the plumage is the 
 " plumage of a stolen bird, or that 
 " the skin is the skin of a stolen 
 " beast, or that the part is a part 
 " of a stolen animal), shall, on con- 
 " viction before a justice of the 
 " peace, be liable for the first of- 
 " fence to such forfeiture, and for 
 " every subsequent offence to such 
 " punishment, as any person con- 
 " victed of stealing any beast or 
 " bird is made liable to by the last 
 " preceding section." 
 
 If pigeons are so far tame that 
 they come home every night to 
 roost in wooden boxes, hung on the 
 outside of the house of their owner, 
 and a party comes in the night and 
 steals them out of these boxes, this 
 is a larceny. Rex v. Brooks, 4 C 
 & P. 131— Taddy, Serjt. 
 
 Ferrets, though tame and sale- 
 able, cannot be the subject of lar- 
 ceny. Rex V. Searing, R. & R. C. 
 C. 350. 
 
 PheaFants that have been reared 
 under hens, and have never become 
 wild, may be the subject of larceny. 
 Reg. V. Head, 1 F. & F. 350— 
 Campbell. 
 
 So young pheasants hatched by a 
 hen, and under the care of the hen, 
 in a coop, in a field at a distance 
 from a dwelling-house, are the sub- 
 jeH of larceny. Reg.\. Corey, 10 
 Cox, C. C. 23— Channell. S. P., 
 Reg. V. Garnham, 8 Cox, C. C. 451 ; 
 2 F. &. F. 347— Pollock. 
 
 Partridges about three weeks old 
 and able to fly a little, which 
 had been hatched and reared by 
 a cominon hen, placed under a 
 hen-coop, and after the removal of 
 the coop remained about the place 
 with the hen as her brood, sleeping 
 under her wings at night, may be 
 the subject of larceny. Reg. v. 
 ShicMe, 38 L. J., M. C. 21 ; 1 L. R., 
 C. C. 158; 17 W. R. 144; 19 L. 
 T., N. S. 327; 11 Cox, C. C. 
 189. 
 
 ( j) Carcases or Skins. 
 
 By 24 & 25 Vict. c. 96, s. 11, 
 " whosoever shall wilfully kill any 
 " animal, with intent to steal the 
 " carcase, skin or any part of the 
 " animal so killed, shall be guilty of 
 " felony, and being convicted there- 
 " of shall be liable to the same pun- 
 " ishment as if he had been convict- 
 " ed of feloniously stealing the same, 
 " provided the offence of stealing 
 " the animal so killed would have 
 " amounted to felony." (Former 
 provision, 7 & 8 Geo. 4, c. 29, s. 
 25.) 
 
 An indictment for stealing lambs 
 is sustained by proof that the car- 
 cases were found in the owner's 
 ground, and only the skins taken 
 away. Rex v. Rawlins, 2 East, P. 
 C. 617. 
 
 In Rex V. Williams, 1 M. C. C. 
 107, where a man was indicted un- 
 der 14 Geo. 2, c. 6, for killing sheep 
 with intent to steal the whole car- 
 case, proof of killing with intent to 
 steal part of the carcase was sufia- 
 cient to support the charge. 
 
 Cutting off part of a sheep whilst 
 it is alive, with intent to steal such 
 part, will support an indictment for 
 killing with intent to steal part of 
 the carcase, if the cutting off must 
 occasion its death. Rex v. Clay, R. 
 & R. C. C. 387. 
 
 On the trial of an indictment for 
 killing a ewe with intent to steal 
 the carcase, it appeared that the 
 prisoner wounded the ewe by cut- 
 ting her throat, and was then inter- 
 rupted by the prosecutor, and the 
 ewe died of the wound two days af- 
 terwards. It was found by the 
 jury who convicted the prisoner, 
 that he intended to steal the carcase 
 of the ewe ; and the judges held 
 the conviction right. Reg. v. Sut- 
 ton, 8 C. & P. 291 ; Reg. v. M'CuL 
 ly, 2 Lewin, C. C. 272 ; 2 M. C. C. 
 34. 
 
 An indictment charged in the 
 first count, that A. and B. killed a 
 sheep, with intent to steal one of its 
 
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THE OWNERSHIP. 
 
 289 
 
 hind legs ; and in the second coimt, 
 that C. received nine pounds weight 
 of mutton so stolen as aforesaid ; and 
 in the third count, that C. received 
 the mutton " of a certain evil-dis- 
 posed person," scienter, &c. : — 
 Held, that on this form of indict- 
 ment, all the three prisoners might 
 be properly convicted. Hex v. 
 Wheeler,! G. & P. 170— Coleridge. 
 
 Pulling wool from the bodies of 
 live sheep and lambs, animo furan- 
 di, is larceny. Hex v. Martin, 1 
 Leach, C. C.171 ; 2 East, P. C. 618. 
 
 So it is larceny to take the milk 
 from a cow. Jb. 
 
 18. The Ownership. 
 
 General Instances of Allegation 
 and Proof. '\ — Property cannot be 
 laid in a person who has never had 
 either actual or constructive posses- 
 sion. JRex V. Adams, R. & R. C. 
 C. 225. 
 
 The property stolen may be describ- 
 ed as the real owner's, although it 
 never was actually in his possession, 
 but in the possession of his agent 
 only. Rex v. Remnant, R. <fc. R. 
 C. C. 136. 
 
 Goods belonging to a guest, stolen 
 at an inn, may be laid to be the 
 property either of the inn-keeper or 
 of the guest. Rex v. Todd, 1 Leach, 
 C. C. 357, n. 
 
 So goods stolen from a washer- 
 woman may be laid to be her prop- 
 erty. Hex V. Parker, 1 Leach, C. 
 C. 357, n. 
 
 So in case of an agister, who 
 takes in sheep to agist for another, 
 they may be laid to be his property. 
 Rex V. Woodward, 1 Leach, C. C. 
 357 n ; 2 East, P. C. 653. 
 
 The coach-glass of a gentleman's 
 coach, standing in a coachmaster's 
 yard, may be laid to be the prop- 
 erty of the coach-master. Rex v. 
 Taylor, 1 Leach, C. C. 356 ; 2 East, 
 P, C. 653. 
 
 The property in goods stolen, is 
 properly alleged to be in the driver 
 of a coach, from the boot of which 
 they were taken. Rex v. Deakin, 
 
 2 East, P. C. 653 ; 2 Leach, C. C. 
 862. 
 
 The goods of a furnished lodging 
 must be described as the lodger's 
 goods, not as the goods 'of the orig- 
 inal owner. Rex v. Belstead, R. & 
 R. C. C. 411 ; Rex v. Brunswick, 1 
 M. C. C. 26. 
 
 If a corn factor purchases a ship 
 laden with corn, and sends his light- 
 er to fetch it from the ship to his 
 wharf, a delivery of the corn on 
 board the lighter puts it into the 
 possession of the corn-factor, al- 
 though the lighterman never deliv- 
 ers it at the factor's wharf. Rex v. 
 Spears, 2 Leach, C. C. 825 ; 2 East, 
 P. C. 568. 
 
 If a corn-factor purchases the car- 
 go of a vessel laden with corn, and 
 sends his servant with a lighter to 
 fetch it from the ship in loose bulk, 
 and the servant contrives to have a 
 certain portion of it put into sacks 
 by the meters on board the ship, 
 and takes th€ corn so sacked fel- 
 oniously away in the lighter imme- 
 diately from the ship, he may be in- 
 dicted for stealing the property of 
 the corn-factor, although it was 
 never put into his lighter, or other- 
 wise reduced into the corn-factor's 
 possession. Rex v. Abrahat, 2 Leach, 
 C. C. 824; 2 East, P.O. 569. 
 
 The prisoner was sent by his, fel- 
 low workmen to their common em- 
 ployer, to get the wages due to all 
 of them. He received the money 
 in a lump sum, wrapped up in pa- 
 per, with the names of the workmen 
 and the sum due to each written in- 
 side : — Held, that he received the 
 money as the agent of his fellow 
 workmen, and not as the servant of 
 the employer, and that, in an indict- 
 ment against him for stealing it, the 
 money was wrongly described as 
 the property of the employer. Reg. 
 V. Barnes, 1 L. R., 0. 0. 45; 12 
 Jur., N. S. 549 ; 35 L. J., M. 0. 
 204; 14 W. R. 805 ; 14 L. T., N. 
 S. 601. 
 
 The wife of A. was employed by 
 her father to sell sheep, and receive 
 
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290 
 
 LARCENY AND RECEIVERS. 
 
 the amount at K. She did so ; but 
 before she left K. a bl. note, which 
 she received in payment for the 
 sheep, was stolen from her : — Held, 
 that the note was properly describ- 
 ed as the property of the husband. 
 Bex V. Roberts, 7 C. & P. 485— 
 Littledale. 
 
 B. was charged with stealing 
 money, alleged to be the money of 
 A. A. had received the money as 
 the servant of an industrial co-oper- 
 ative society, for goods sold to mem- 
 bers of the society, and he was ac- 
 countable to the treasurer for the 
 monies he received. B. was a mem- 
 ber of the society, and had abstract- 
 ed some money from a till under 
 A.'s charge : — Held, that there was 
 a sufficient possession of the money 
 in A. to sustain a conviction for lar- 
 ceny against B. JReg. v. Burgess, 
 L. & C. 299 ; 9 Cox, C. C. 302 ; 9 
 Jur., N. S. 582 ; 32 L. J., M. C. 
 185 ; 11 W. R. 602 ; 8 L. T., N. S. 
 255. 
 
 An indictment for larceny, and 
 receiving goods knowing them to 
 have been stolen, is bad, if it does 
 not state to whom the goods be- 
 longed ; and the defect cannot be 
 amended, nor was it cured by 14 
 & 15 Vict. c. 100, s. 8. Beg. v. 
 Ward, 7 Cox, C. C. 421. 
 
 Ijon found in the bed of a canal 
 during the course of cleansing was 
 returned by the canal company to 
 the true owners, if capable of 
 being identified, otherwise it Vi^as 
 kept by the canal company : 
 — Held, that in an indictment 
 against a stranger for larceny of 
 such iron, the property was properly 
 laid in the canal company. Beg. v. 
 Bowe, 8 Cox, C. C. 139 ; 5 Jur., N. 
 S. 274. 
 
 Churchwardens and Overseers.^ — 
 Money was stolen from an ancient 
 poor's box fixed up in a church : — 
 Held, that, in an indictment for 
 stealing it, the property would be 
 properly laid in the vicar and 
 churchwardens ; and that an in- 
 
 dictment in which the property was 
 stated to be that of " J. N. and oth- 
 ers," J. N. being the vicar, was 
 correct, without alleging J. N. to 
 be the vicar, or the " others " to be 
 the churchwardens. Beq. v. Wort- 
 ley, 2 C. & K. 283— C. C". R. 
 
 An indictment for stealing goods 
 may, under 55 Geo. 3, c. 137, state 
 them to bethegoodsof the overseers 
 of the poor, for the time being, of 
 the parish of A. ; for this will im- 
 port that they bslonged, at the 
 time of the theft, to the persons 
 who were the then overseers. Bex 
 V. Went, R. & R. C. C. 359. 
 
 Inhahitants of a County. \ — A room 
 attached to a shire-hall, and built 
 and used for the purpose of a ball 
 and concert room, is within 7 Geo. 
 4, c. 64, s. 5, which provides, that 
 in any indictment for any felony or 
 misdemeanor, committed in, upon, 
 or with respect to any court or oth- 
 er building erected or maintained 
 at the expense of any county, in, on, 
 or with respect to any goods or 
 chattels provided for or at the ex- 
 pense of the county, to be used in 
 or with any such court, it shall be 
 sufficient to state any such property, 
 real or personal, to belong to the 
 inhabitants of such county. Beg. v. 
 Winhow, 5 Cox, C. C. 346. 
 
 A chandelier, which had been 
 used as a .fixture in the ball-room, 
 and subsequently removed to an- 
 other part of the building, but not 
 used for any purpose, is also within 
 the same statute, and is properly 
 described as the property of the in- 
 habitants of the county. Ih. 
 
 A hall-keeper, appointed by the 
 justices, is not bailee of any of the 
 contents of the shire-hall, but is the 
 servant of the inhabitants, and, if 
 he converts to his own use any of 
 the property committed to his care, 
 he may be indicted for larceny. Ih. 
 
 Joint Stock Companies.] — A. was 
 convicted on a count which charged 
 him with stealing a piece of paper. 
 
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THE OWNERSHIP. 
 
 291 
 
 the property of G. and others, his 
 masters. G-. and others were di- 
 rectors of an unincorporated insur- 
 ance company, managed its affairs, 
 appointed, paid, controlled and dis- 
 missed the clerks and other serv- 
 ants, and had the charge and cus- 
 tody of all the books and papers 
 of the company. The company 
 had a drawing account with G. & 
 Co., and used to send their pass- 
 books in every week to be written 
 up, and their messenger went on 
 the following morning to bring it 
 back, when it was returned, togeth- 
 er with the cheques, &c., of the pre- 
 ceding week. A. was a salaried 
 clerk in the office of the company, 
 and also a shareholder ; it was his 
 duty to receive the pass-book and 
 vouchers from the messenger, and 
 to preserve tlie vouchers for the use 
 of the company. G. & Co. de- 
 livered the pass-book, containing 
 among other things a cashed cheque 
 for 1 ,400/. to the messenger of the 
 company, who delivered the book 
 and cheque to A. in the usual way, 
 and he thereupon fraudulently de- 
 stroyed it : — Held, that the cheque 
 was the property of the directors, 
 and that A., though a shareholder 
 in the company, had not a joint 
 property in it, and was properly 
 convicted of larceny. -Reg. v. 
 Watts, 2 Den. C. C. 14; T. & M. 
 342 ; 14 Jur. 870 ; 19 L. J., M. C. 
 193 ; 4 Cox, C. C. 336. ' 
 
 The London Dock Company by 
 mistake delivered two hogsheads of 
 sugar to a carrier, who produced 
 two delivery notes authorizing 
 them to deliver two other hogsheads 
 of sugar, the property of B. The 
 carrier broke bulk, and was indict- 
 ed for larceny : — Held, that the 
 property was well described as the 
 property of the London Dock Com- 
 pany, they having still a special 
 property in the chattels, notwith- 
 standing that they parted with the 
 possession by mistake. Hecf.. v. 
 Vincent, 3 C. & K. 246 ; 2 Den. 
 
 C. C. 464; 16 Jur. 457; 21 L. J., 
 M. 0. 109 ; 5 Cox, C. C. 537. 
 
 If in an indictment for larceny 
 the property of the goods is laid in 
 A., and the property is proved to 
 be in the London Dock Company, 
 this was amendable under 14 & 15 
 Vict.c. 100, s. 1. lb. 
 
 In an indictment against a serv- 
 ant of the West India Dock Com- 
 pany, for stealing a quantity of 
 canvas and hessen belonging to the 
 company from their warehouses, it 
 was sufficient to state the proper- 
 ty to be " the goods and chattels of 
 the West India Dock Company," 
 and not necessary, notwithstanding 
 the words of the 1 & 2 Will. 4, c. 
 lii, s. 133, to allege, in addition, 
 that it was feloniously taken from 
 the company. Heg. v. 8toke, 8 C. 
 & P. 151— Mirehouse, C. S. 
 
 In an indictment for larceny, the 
 property was laid to be in G., man- 
 ager of the Dudley and West Brom- 
 wich Bank. The property belong- 
 ed to the banking company, a com- 
 pany consisting of more than twen- 
 ty partners, but no registration of 
 it, or appointment of any manager 
 or public officer, was proved. The 
 indictment was amended by laying 
 the property in W. and others, W. 
 being one of the partners : — Held, 
 that the ownership, as amended, 
 was rightly laid under 7 Geo. 4, c. 
 64, s. 14, and that it need not have 
 bean laid in the public officer (pre- 
 suming there was one), under 7 Geo. 
 4, c. 46, s. 9. Seff. v. Pritchard, 8 
 Cox, C. C. 461 ; L. & C. 34 ; 7 
 Jur., N". S. 557 ; 30 L. J., M. C. 
 1 69 ; 9 W. R. 579 ; 4 L. T., N. S. 
 340. 
 
 The 1 & 2 Vict. c. 85, was con- 
 tinued by 3 & 4 Vict. c. Ill ; and 
 a shareholder in a joint stock bank- 
 ing company may be indicted for 
 embezzling or stealing the money 
 of the company, it being laid as the 
 property of a public officer of the 
 company correctly appointed and 
 registered. JReg. v. Athinson, 2 
 M. C. C. 278 ; Car. & M. 525. 
 
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292 
 
 LARCENY AND RECEIVERS. 
 
 Father or Soni\ — An indictment 
 for stealing the wearing apparel of 
 a son, who is an apprentice to his 
 father, and furnished with his 
 clothes in pursuance of his indent- 
 ures, should lay them to be the 
 property of the son, and not of the 
 father. Rex v. Forsgate, 1 Leach, 
 C. C. 463. 
 
 If a father buys and pays for 
 cloth which is made into trousers 
 for his son, who is seventeen years 
 of age, these trousers may, on an 
 indictment for larceny, be laid as 
 the property of the father. Reg v. 
 Hughes, Car. & M. 593 — Patteson. 
 
 In such cases the property may 
 be laid either in the father or in the 
 son, but the better course is to lay 
 it in the latter. Tb. 
 
 Goods under Execution.^ — If goods 
 seized under a fi. fa. are stolen, they 
 may be described as the goods of 
 the party against whom the writ 
 issued ; for though they are in cus- 
 todiS, legis, the original owner con- 
 tinues to have a property in ' them 
 untU they are sold. Rex v. Eastall, 
 2 Russ. C. & M. 291, 382. 
 
 Peers and Peeresses!] — In an in- 
 dictment for larceny of goods, the 
 property of a peer who is a baron, 
 the goods may be laid as the goods 
 and chattels of " G., T. R., Lord 
 D.," without styling him Baron 
 D., although the more proper way 
 to describe the peer is by his christ- 
 ian name, and his degree in the 
 peerage, as duke, earl, baron, or 
 the like. Reg. v. PiUs, 8 C. & P. 
 771 ; Erskine ; S. P., Reg.Y. Oaky, 
 5 Jur. 709— Taddy, Serjt. 
 
 An indictment for larceny, laying 
 the goods stolen to be the property 
 of Victory Baroness Turkheim, is 
 good, although her name is Selinda 
 Victoire. Rex v. Sulls, 2 Leach, 
 C. C. 861. 
 
 Trustees of Benefit and Friendly 
 Societies.'] — An indictment for the 
 larceny of property belonging to 
 
 trustees who are not incorporated, 
 must lay the property to be in them 
 by name as individuals, subjoining 
 a description of the character in 
 which they are authorized to act. 
 Rex V. Sherrington, 1 Leach, C. C. 
 513. 
 
 Where a friendly society had ap- 
 pointed a treasurer and two trus- 
 tees, one of the trustees was held 
 guilty of larceny in stealing the 
 money of the society, the m.oney be- 
 ing alleged in the indictment to be 
 the property of the treasurer, and 
 having been taken from his hands 
 with the intention of stealing. Reg. 
 V. Cain, 2 M. C. C. 204 ; Car. & 
 M. 309. 
 
 The goods in a dissenting chapel, 
 vested in trustees, cannot be de- 
 scribed in an indictment as the 
 goods of a servant who has merely 
 the custody of the chapel and things 
 in it, to clean and keep in order, 
 although he has the key of the 
 chapel, and no other person but the 
 minister has another key. Rex\. 
 Hutchinson, R. & R. C. C. 412. 
 
 A bible had been given to a so- 
 ciety of Wesleyans ; and it had 
 been bound at the expense of the 
 society. B. stated that he was one 
 of the trustees of the chapel, and 
 also a member of the society. No 
 trust deed was produced : — Held, 
 that, in an indictment for stealing 
 the Bible, the property was rightly 
 laid in B. and others. Rex v. BovL 
 ton, 5 C. & P. 637— Parke. 
 
 A box belonging to a benefit so- 
 ciety was stolen from a room in a 
 public-house. Two of the stewards 
 had keys of this box ; and, by the 
 rules of the society, the landlord 
 ought to have had a key, but in 
 fact he had .not : — Held, that the 
 prisoner might be convicted on a 
 count laying the property in the 
 landlord alone. Rex v. Wymer, 4 
 C. & P. 391— Parke. 
 
 A. was indicted for stealing 
 money, the property of " F. and 
 others." " F. and others " were 
 trustees of a friendly society ; and 
 
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THE OWNERSpiP. 
 
 293 
 
 A. and H. were members of the so- 
 ciety. H. was in possession of a 
 shop where goods were sold for the 
 society, and had the sole manage- 
 ment, and was answerable for prop- 
 erty and money coming into his 
 possession. A., while assisting in 
 the shop, without salary, took the 
 money from the till. The prosecu- 
 tion failing to prove the society was 
 duly inrolled, the indictment was 
 amended by inserting H.'s name, 
 instead of " F. and others." It was 
 then proved, on behalf of A., that 
 the society was inrolled : — Held, 
 that a conviction upon the amend- 
 ed indictment might be sustained. 
 Reg. V. Webster, 7 Jur., N. S. 1208 ; 
 31 L. J., M. C. 17 ; 10 W. R. 20 ; 
 5 L. T., N. S. 327— C. C. R. 
 
 On Death of Parties.^ — In an in- 
 dictment for stealing property 
 which has belonged to a deceased 
 person, who appointed executors, 
 who would not prove the will, the 
 property must be laid in the ordina- 
 ry, and not in a person who, after 
 the commission of the ofl'ence, but 
 before the indictment, has taken 
 out letters of administration with 
 the will annexed ; because the 
 rights of an administrator only com- 
 mence from the date of the letters, 
 as distinguished from those of an 
 executor, which commence, not 
 from the granting of the probate, 
 but from the death of the testator. 
 Rex V. Smith, 7 C. & P. 147— Bol- 
 land and Coleridge. 
 
 Where two had jointly stock 
 upon a farm, and one died, leaving 
 several children : — Held, that the 
 property in sheep stolen was proper- 
 ly alleged to be in the survivor and 
 the children ; the former swearing 
 that he considered himself to hold 
 one moiety for the benefit of the 
 latter. Rex v. Scott, 2 East, P. C. 
 655 ; R. & R. C. C. 13. 
 
 D. & C. were partners ; C died 
 intestate, leaving a widow and 
 children; from the time of his 
 death the widow acted as partner 
 
 Digitized by Microsoft® 
 
 with D., and attended the business 
 of the shop ; three weeks after C.'s 
 death part of the goods was stolen ; 
 they were described in the indict- 
 ment as the goods of D. and the 
 widow : — Held, that the description 
 was right. Rex v. Gabu, R. & R. 
 C. C. 178. 
 
 On an indictment for stealing 
 sheep, which had been stolen after 
 the death of the late owner, there 
 being no formal proof of a will or 
 an administration, but it appear- 
 ing that the sheep were in chai-ge 
 of the shepherd, under the orders of 
 a steward, who was under the or- 
 der of the prosecutors, and took di- 
 rections from and rendered ac- 
 counts to them : — Held, that there 
 was sufficient evidence of a pos- 
 session in them, which would sus- 
 tain the indictment. Reg. v. King, 
 4 P. & F. 493— Crompton. 
 
 A knife was stolen from the 
 pocket of A., as his dead body lay 
 in a road at S., in the diocese of W. 
 Tlie last place of abode of A. was 
 at T., in the diocese of G. ; but A.'s 
 father stated that he believed his 
 son had left T. to come to live with 
 him, but did not know whether his 
 son had given up his lodgings at 
 T. : — Held, that this was sufficient 
 proof to support a count for larce- 
 ny, laying the property in the Lord 
 Bishop of W. Reg. v. Tippin, Car. 
 & M. 545 — Patteson. 
 
 A. was convicted upon an indict- 
 ment charging her with stealing 
 numerous articles, laid as the prop- 
 erty of the ordinary. The evidence 
 was, that the articles, which belong- 
 ed to a deceased person, were after 
 her death found in A.'s possession ; 
 that search had been made for a 
 will, and none found ; and that a 
 small portion only of the articles 
 had been seen in the house of the 
 deceased after her death : — Held, 
 that the property was rightly laid in 
 the ordinary, and that the sessions 
 had done right in leaving the case, 
 as to the whole of the articles, to 
 the jury, and in refusing to put the 
 
294 
 
 LARCENY AND RECEIVERS. 
 
 prosecutor to an election to proceed 
 only in respect of the taking any 
 particular articles. Reg. v. John- 
 son, Dears. & B. C. C.340; 4Jur., 
 N. S. 55 ; 27 L. J., M. C. 52 ; 7 Cox, 
 C. C. 379. 
 
 On Conviction of Felons.] — Goods 
 of an adjudged felon, stolen from 
 his house, in the possession and oc- 
 cupation of his wife, may be describ- 
 ed in an indictment for larceny as 
 the goods of the Queen. But the 
 house cannot be so described with- 
 out oifice found. lieg. v. White- 
 head, 2 M. C. C. 181 ; S. P., Coombes 
 V. Queen'' s Proctor, 16 Jur. 820 — 
 Pre. C. 
 
 19. Receivers of Stolen Property. 
 
 (a) Statutory Provisions. 
 
 By 24 & 25 Vict. c. 96, s. 91, 
 " whosoever shall receive any chat- 
 " tel, money, valuable security, or 
 " other pi-operty whatsoever, the 
 " stealing, taking, extorting, obtain- 
 " ing, embezzling, or otherwise dis- 
 " posing whereof shall amount to a 
 " felony either at common law or 
 " by virtue of this act, knowing the 
 " same to have been feloniously 
 " stolen, taken, extorted, obtained, 
 " embezzled, or disposed of, shall be 
 " guilty of felony, and may be in- 
 " dieted and convicted either as an 
 " accessory after the fact or for a 
 " substantive felony, and in the lat- 
 " ter case, whether the principal 
 " felon shall or shall not have been 
 " previously convicted, or shall or 
 " shall not be amenable to justice; 
 " and every such receiver, howsoev- 
 " er convicted, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for any 
 "term not exceeding fourteen and 
 " not less than five years (27 & 28 
 " Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two, 
 " with or without hard labour, and 
 "with or without solitary contine- 
 "ment, and, if a male under the 
 
 "age of sixteen, with or without 
 " whipping : provided, that no per- 
 " son, howsoever tried for receiving 
 " as aforesaid, shall be liable to be 
 " prosecuted a second time fdr the 
 " same offence." {Former provision, 
 7 & 8 Geo. 4, c. 29, s. 54.) 
 
 By s. 95, " whosoever shall re- 
 " ceive any chattel, money, valuable 
 " security, or other property what- 
 " soever, the stealing, taking, ob- 
 " taining, converting, or disposing 
 " whereof is made a misdemeanor 
 " by this act, knowing the same to 
 " have been unlawfully stolen, tak- 
 " en, obtained, converted, or dispos- 
 " ed of, shall be guilty of a misde- 
 " meaner, and may be indicted and 
 " convicted thereof, whether the 
 " person guilty of the principal mis- 
 " demeanor shall or shall not have 
 " been previously convicted thereof, 
 " or shall or shall not be amenable 
 " to justice ; and every such receiv- 
 " er, being convicted thereof, shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for any term not exceeding 
 " seven years and not less than five 
 "years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour, and with or with- 
 " out solitary confinement, and, if a 
 " male under the age of sixteen 
 " years, with or without whipping." 
 
 By s. 97, " where the stealing or 
 " taking of any property whatsoever 
 " is by this act punishable on simi- 
 " mary conviction, either for every 
 " offence, or for the first and second 
 " offence only, or for the first offence 
 " only, any person who shall receive 
 "any such property, knowing the 
 " same to be unlawfully come by, 
 " shall, on conviction thereof before 
 "a justice of the peace, be liable, 
 " for every first, second, or subse- 
 " quent offence of receiving, to the 
 " same forfeiture and punishment to 
 " which a person guilty of a first, 
 "second or subsequent offence of 
 " stealing or taking such property is 
 " by this act made liable." 
 
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WHO ARE RECEIVEKS. 
 
 295 
 
 (b) Who are Receivers. 
 
 If a receivfer of stolen goods re- 
 ceives them for the mere purpose of 
 concealment, without deriving any 
 profit at all, he is just as much a re- 
 ceiver as if he had purchased them. 
 Bex V. Michardson, 6 C. & P. 335 
 — Gaselee, Vaughan and Taunton. 
 
 Without proof of an actual taking 
 into possession, an indictment for 
 receiving goods knowing them to 
 have been stolen cannot be sustain- 
 ed. Heg. V. Hill, 3 New Sess. Cas. 
 648 ; 1 Den. C. C. 453 ; T. & M. 
 150 ; 2 C. & K. 978 ; 13 Jur. 545 ; 
 18 L. J., M. C. 199. 
 
 W. stole a watch from A.; and 
 while W. and L. were in custody 
 together, W. told L. that he had 
 "planted" the watch imder a flag 
 in a soot-cellar of L.'s house. After 
 this L. was discharged, and went to 
 the flag and took up the watch, and 
 sent his wife to pawn it : — Held, 
 that, if L. thus took the watch in 
 consequence of W.'s information, 
 W. telling L. in order that he might 
 use the information by taking the 
 watch, L. was indictable for this as 
 a receiver of stolen goods; but that 
 if this was an act done by L. in op- 
 position to W., or against his will, 
 it might be a question whether it 
 would be a receiving. Heg. v. 
 Wade, 1 C. & K. 739— Pollock. 
 
 A prisoner admits having bought 
 an article, which is subsequently 
 found in his house; that is suflicient 
 evidence for a jury to convict of re- 
 ceiving without proof of an actual 
 receipt, or that he had ever been at 
 the house from before the purchase 
 to the time of the charge. Heg. v. 
 Matthews, T. & M; 337 ; 1 Den. C. 
 C. 596 ; 14 Jur. 513. 
 
 Two men, having stolen some 
 fowls, put them into a sack and 
 carried them into the house of the 
 prisoner's father at about half-past 
 four o'clock in the morning. After 
 remaining in the house about ten 
 minutes, the two men were seen to 
 come out at a back door, one of 
 them canying the sack, and the 
 
 prisoner going before them with a 
 light. The stable-door was closed 
 by one of the party, and when the 
 policeman entered he found the two 
 thieves and the prisoner standing 
 round the sack, which lay on the 
 floor untied', as if bargaining for the 
 fowls : — Held, that this was not a 
 receiving within the statute, the 
 prisoner never having had the goods 
 under his control, and the whole 
 transaction being only inchoate. 
 Heff. V. Wilei/, 2 Den. C. C. 37 ; 4 
 Cox, C. C. 412 ; T. & M. 367 ; 15 
 Jur. 134; 20L. J., x\r. C. 4. 
 
 It is not necessary to prove an actual 
 manual possession of stolen goods, 
 in order to sustain an indictment for 
 receiving the goods, but it is suffi- 
 cient if the goods are shewn to have 
 been under the control of the person 
 charged with receiving. Heff. v. 
 Smith, Dears. C. C. 494; 1 Jur., N. 
 S. 575 ; 24 L. J., M. C. 135 ; 6 Cox, 
 C. C. 554. 
 
 Stolen goods were found by the 
 owner in the pockets of the thief; 
 a policeman was sent for, who took 
 the goods and subsequently returned 
 them to the thief, and the owner 
 then sent the latter to sell them 
 where he had sold others ; he ac- 
 cordingly sold them at the shop 
 of D. D. was tried and con- 
 victed of receiving the goods know- 
 ing them to have been stolen : — 
 Held, that the conviction was wrong, 
 as the facts did not constitute a re- 
 ceiving of stolen goods within 7 & 8 
 Geo. 4, c. 29, s. 54. Heg. v. Bolan, 
 Dears. C. C. 436 ; 3 C. L. R. 295 ; 
 1 Jur., N. S. 72 ; 24 L. J., M. C. 
 59 ; 6 Cox, C. C. 449. 
 
 A. was indicted for feloniously re- 
 ceiving a watch and a hat. It was 
 proved that a policeman, in conse- 
 quence of information received from 
 B. (the thief ), went to a room in a 
 lodging-house where A. slept, and 
 in a box in that room found the hat. 
 A. admitted that the hat had been 
 brought there by B., but denied aU 
 knowledge of the watch. On the 
 following day A. was taken into 
 
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 LARCENY AND RECEIVERS. 
 
 custody, and he then told the police- 
 man that he knew where the watch 
 was, but did not like to say any- 
 thin <»• about it before the people of 
 the house. A. then took the police- 
 man to a place where he said the 
 watch was, but it was not found 
 there, but he aftei-wards sent a boy 
 for the watch, and on the boy bring- 
 ing the watch to A., he gave it to 
 the policeman: — Held, that there 
 was sufficient evidence to go to the 
 jury. Reg. v. Hohson, Dears. C. C. 
 400. 
 
 It is not necessary, to constitute 
 a receiving of stolen goods, that the 
 person indicted should have had 
 manual possession of the goods ; but 
 dii-ecting a servant to dispose of 
 them, as by pawning or otherwise, 
 will be sufficient to support the 
 charge. Stolen property was brought 
 by the thief into A.'s shop; A., with 
 guilty knowledge, called a servant 
 and directed her to take the stolen 
 goods to the pawn office and " pawn 
 them for the girl " (the thief). A.'s 
 servant did so accordingly, and 
 brought back the money, which she 
 handed to the thief in her mistress's 
 presence. A. never had manual 
 possession of either the goods or the 
 money : — Held, that this amounted 
 to a receiving by A. of the stolen 
 property. Reg. v. Miller, 6 Cox, C. 
 C. 353. 
 
 W., T. and the prisoner were in- 
 dicted, W. and T. in one count for 
 embezzling goods, and in another 
 for stealing them; the prisoner for 
 receiving the goods knowing them 
 to have been stolen. The jury 
 found W. guilty of embezzlement, 
 acquitted T., and found the prisoner 
 guilty of receiving : — Held, that the 
 conviction of the prisoner was right. 
 Reg. V. Frampton, Dears. & B. C. 
 C. 585; 4 Jur., N. S. 666; 27 L. J., 
 M. C. 229; 8Cox, C. C. 16. 
 
 Stolen goods were delivered by a 
 thief to the wife of the prisoner in 
 his absence ; she paid 6rf. on account, 
 but the amount to be paid was not 
 then fixed. The prisoner and the 
 
 principal felon afterwards met, when 
 the prisoner, with the knowledge 
 that the goods had been stolen, 
 agreed upon the price and paid the 
 balance : — Held, that he was prop- 
 erly convicted of receiving the 
 goods knowing them to be stolen. 
 Reg. V. Woodward, L. & C. 122; 9 
 Cox, C. C. 95; 8 Jur., N. S. 104; 
 31 L. J., M. C. 91 ; 10 W. R. 298; 
 5 L. T., N. S. 686. 
 
 A prisoner was convicted of fel- 
 oniously receiving Stolen goods un- 
 der the following circumstances : — 
 The goods were stolen, and sent by 
 the thief in a parcel by railway, ad- 
 dressed to the prisoner. A police- 
 man belonging to the railway com- 
 pany, from information he had re- 
 ceived, examined the parcel at the 
 railway station at the place of its 
 destination, and stopped it. It was 
 called for by one of the thieves on 
 the day of its arrival, and refused 
 to him. A porter of the company, 
 the next day, by the direction of 
 the policeman, took it to a house 
 which the thief who had called for 
 it designated, and it was there re- 
 ceived by the prisoner : — Held, ^that 
 the conviction was wi'ong, as the 
 goods had ceased to be stolen goods, 
 within the statute, at the time of the 
 receipt by the prisoner. Reg. v. 
 Schmidt, 10 Cox, C. C. 172; 1 L. 
 R., C. C. 15; 12 Jur., N. S. 149; 
 35 L. J., M. C. 94 ; 14 W. R. 286 ; 
 13 L. T., N. S. 679. 
 
 (c) Joirvt Receivers. 
 By 24 & 25 Vict. c. 96, s. 94, 
 " if upon the trial of any two or 
 " more persons indicted for jointly 
 " receiving any property it shall be 
 " proved that one or more of such 
 " persons separately received any 
 " part or parts of such property, it 
 " shall be lawful for the jury to con- 
 " viet, npon such indictment, such 
 " of the said persons as shall be 
 " proved to have received any part 
 " or parts of such property." (^For- 
 mer provision, 14 & 16 Vict. c. 100, 
 s. 14.) 
 
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HUSBAND AND WIFE. 
 
 297 
 
 Two or more persons may be in- 
 dicted jointly for receiving stolen 
 property, knowing it to have been 
 stolen, though each successively re- 
 ceived the whole of the same at dif- 
 ferent times, and it makes no diifer- 
 ence whether the receipt was direct 
 from the felon or from an interme- 
 diate person. Reg. v. Rear don or 
 Rearden, 1 L. R., C. C. 31 ; 12 Jur., 
 N. S. 476 ; 36 L. J.. M. C. 171 ; 14 
 W. R 668 ; 14 L. T., N. S. 449. 
 
 If two are charged jointly with 
 receiving stolen goods, a joint act of 
 receiving must be proved. Proof 
 that one received in the absence of 
 the other, and afterwards delivered 
 to him, will not suffice. Rex v. 
 Messingham, 1 M. C. C. 257. 
 
 A. received goods from B. (who 
 was the servant of C.) under col- 
 our of a pretended sale: — Held, 
 that the fact of his having received 
 such goods with knowledge that B. 
 had no authority to sell, and that 
 he was in fact defrauding his master, 
 was sufficient evidence to support 
 an indictment for larceny against A. 
 jointly with B. Reg. v. Hornby, 1 
 C. & K. 305— Coltman. 
 
 D. and G. were charged with 
 jointly receiving stolen goods. The 
 evidence was, that D. first received 
 the goods on the road between B. 
 and S. ; and that subsequently G. 
 received a portion of them at S. : — 
 Held, that the evidence as to the 
 separate act of receiving by G. was 
 improperly admitted, and that the 
 indictment was satisfied by the proof 
 of the receiving by D. Reg. v. Dov- 
 ey. 15 Jur. 230 ; 20 L. J., M. C. 
 105 ; 4 Cox, G. C. 428— C. C. R. 
 
 Plea by one prisoner, indicted 
 singly for receiving stolen goods, of 
 autrefois acquit, under an indictment 
 against him and four others, on 
 which one was convicted, and the 
 prisoner and the three others were 
 acquitted, is good. Rex v. Dann, 1 
 M. C. C. 424. 
 
 Where A., knowing that goods 
 have been stolen, directs B., his serv- 
 ant, to receive them into his prem- 
 
 Fish. Dig.— 22. 
 
 ises, and B., in pursuance of that 
 direction, afterwards receives them 
 in A.'s absence, B. knowing that 
 they liave been stolen, they may be 
 jointly indicted for receiving them. 
 Reg. V. Parr. 2 M. & Rob. 346— 
 Maule. 
 
 Two Avere convicted under a 
 count charging them with receiv- 
 ing goods knowing them to have 
 been stolen, upon proof that they 
 were present, aiding and abetting 
 a third receiver, who was found 
 in actual possession of the box con- 
 taining the goods, but the two former 
 never had actual possession of the 
 box : — Held, that the conviction 
 was right. Recj. v. Rogers, 37 L. J., 
 M. C. 83— C. C. R. 
 
 (d) Husband and wife. 
 
 A wife cannot be convicted of 
 feloniously receiving goods stolen 
 by her husband. Reg. v. Brooks, 
 Dears. C. C. 184; 17 Jur. 400 ; 22 
 L. J., M. C. 121 ; 6 Cox, C. C. 148. 
 
 A wife, jointly with her husband, 
 cannot be convicted of receiving 
 stolen goods. Reg. v. Mathews, T. 
 & M. 337 ; 1 Den. C. C. 596 ; 14 
 Jur. 513. 
 
 Where both were found guilty on 
 a joint indictment, the conviction 
 of the husbaud affirmed, of the wife 
 quashed. lb. 
 
 Husband and wife were jointly 
 indicted for receiving goods, know- 
 ing them to have been stolen. 
 The jury found both guilty, and 
 that the wife received the goods 
 without the control or knowledge 
 of, and apart from her husband, 
 and that he afterwards adopted his 
 wife's receipt : — Held, that the con- 
 viction against the husband could 
 not be sustained. Reg. v. Dring, 
 Dears. & B. C. C. 329 ; 3 Jur., N. 
 S. 1132 ; 7 Cox, C. C. 382. 
 
 But a husband may be convicted 
 of feloniously receiving property 
 which his wife has stolen volunta- 
 rily and without afay constraint on 
 his part, if he receives it, knowing 
 that she has stolen it. Reg. v. 
 
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298 
 
 'LARCENY AND RECEIVERS. 
 
 M'Athey, L. & C. 250 ; 9 Cox C. 
 C. 251; 8 Jur., N. S. 1218; 32 L. 
 J., M. C. 35 ; 11 W. R. 73 ; 7 L. 
 T., N. S. 433. 
 
 20. Indictment for Stealing and He- 
 ceiving. 
 
 (a) Stealing. 
 
 Several Counts.]— Bj 24 & 25 
 Vict. c. 96, s. 5, " it shall be lawful 
 " to insert several counts in the 
 " same indictment against the same 
 " person for any number of distinct 
 " acts of stealing not exceeding 
 " three, which may have been com- 
 " mitted by him against the same 
 " person within the space of six 
 " months from the iirst to the last 
 " of such acts, and to proceed there- 
 " on for all or any of them." {Sim- 
 ilar to 14 & 15 Vict. c. 100, s. 16.) 
 
 Election of Larcenies charged.] — 
 By s. 6, " if upon the trial of any 
 " indictment for larceny it shall ap- 
 " pear that the property alleged in 
 " such indictment to have been Btol- 
 " en at one time was taken at 
 " diiferent times, the prosecutor 
 " shall not by reason thereof be re- 
 " quired to elect upon which tak- 
 " ing he will proceed, unless it shall 
 " appear that there were more th^n 
 " three takings, or that more than 
 " the space of six months elapsed 
 " between the first and the last of 
 " such takings ; and in either of such 
 " last-mentioned cases the prosecut- 
 " or shall be required to elect to 
 " proceed for such number of tak- 
 " ings, not exceeding three, as ap- 
 " pear to have taken place within 
 " the period of six months from the 
 " first to the last of such takings." 
 (Similar to former provision, 14 & 
 15 Vict. c. 100, s. 17.) 
 
 On an indictment for stealing 
 fowls, in a first count laid on 
 the 15th of February, for stealing 
 ten fowls, and in the third count 
 laid on the 13th of February in the 
 same year, for stealing three fowls, 
 the prosecutor was put to elect be- 
 
 tween the two occasions. • Reg. v. 
 Lonsdale, 4 F. & F. 56— Pollock. 
 A. was tried upon an indictment 
 which contained two counts, the 
 first for embezzlement, and the sec- 
 ond for larceny as a bailee. At the 
 close of the case for the prosecution, 
 it was objected that the indictment 
 was bad for misjoinder of counts, 
 and that the counsel for the prose- 
 cution could not be allowed to elect 
 upon which count he would pro- 
 ceed. The objection was overruled. 
 The counsel for the prosecution 
 elected to proceed upon the second 
 count, and A. was convicted : — 
 Held, the conviction was right. 
 Reg. V. Holman, 9 Cox, C. C. 201 ; 
 L. &C.C. C. 177; 8 Jur., N. S. 
 1082 ; 10 W. R. 718 ; 6 L. T., N. 
 S. 474. 
 
 Before this Enactment. J — Two 
 persons indicted for horse-stealing 
 in county A., were found in joint 
 possession of two horses in that 
 county, which they had jointly 
 taken at diiferent times and places 
 in county B. : — Held, that as each 
 taking in county B. was a separate 
 felony, the prosecutor's counsel 
 must elect on which to proceed. 
 Rex V. Smith, R. & M. 295— Little- 
 dale. 
 
 Form of Allegations.] — An indict- 
 ment charged that A. on &c., being 
 the servant of K., on the same day, 
 &c., one gold ring, &c., then and 
 there being his goods and chattels, 
 feloniously did steal: — Held, that 
 the fair import of the charge was, 
 that A. was the servant of K. at the 
 time when the theft was committed. 
 Rex V. Somerton, 7 B. & C. 463. 
 
 An indictment charged that the 
 prisoner, whilst a servant of A., stole 
 the money of A. The prisoner was 
 not the servant of A., but the serv- 
 ant of B., and the money which he 
 stole was the money of B., but in 
 the possession of A. as the agent of 
 B. : — Held, that the allegation as to 
 the prisoner being servant might be 
 
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STEALING. 
 
 299 
 
 rejected as surplusage, and the pris- 
 oner convicted of simple larceny, 
 the money being properly alleged 
 to belong to A., who had a special 
 property therein. Reg. v. Jennings^ 
 Dears. & B. C. C. 447 ; 4 Jur., N! 
 S. 146; 7 Cox, C. C.397. 
 
 If goods are laid in an indictment 
 as " the property of A. W. G. esq.," 
 the addition is not material, and if 
 he is not an esquire, it is no ground 
 for an acquittal. liex v. Ogilvie, 2 
 C. & P. 230— Burrough. 
 
 Description of Instrument i\ — By 
 
 14 & 15 Vict. c. 100, s. 5, "in any 
 " indictment for stealing, destroying, 
 " or concealing any instrument, it 
 " shall be sufficient to describe such 
 " instrument by any name or desig- 
 " nation by which the same may be 
 " usually known, or by the purport 
 " thereof, without setting out any 
 " copy, or fac simile thereof, or 
 " otherwise describing the same or 
 " the value thereof. 
 
 Coin and Bank Notes. '\ — By 14 & 
 
 15 Vict. c. 100, s. 18, " in every in- 
 " dictment in which it shall be nec- 
 " essary to make any avennent as to 
 " any money, or any note to the 
 " Bank of England, or any other 
 " bank, it shall be sufficient to de- 
 " scribe such money or bank-note 
 " simply as money, without specify- 
 " ing any particular coin or bank- 
 " note ; and such allegation, so far 
 " as regards the description of the 
 " property, shall be sustained by 
 " proof of any amount of coin, or of 
 " any bank-note, although the par- 
 " tieular species of coin of which 
 " such amount was composed, or 
 " the particular nature of the bank- 
 " note, shall not be proved." 
 
 Bank notes are properly described 
 in an indictment for larceny within 
 this enactment as money, although 
 at the time when they were stolen 
 they were not in circulation, but 
 were in the hands of the bankers 
 themselves. Beg. v. West, Dears. 
 & B. C. O. 109 ; 2 Jur.,N. S. 1123 ; 
 26 L. J., M. C. 6 ; 7 Cox, C. C. 183. 
 
 An indictment, charging a steal- 
 ing of one or more specific thing or 
 things, is not supported, except by 
 proof of some one or more of the 
 specific things so charged. Reg. v. 
 Bond, 1 Den. C. C. 517 ; T. & M. 
 242; 4NewSess. Cas. 143; 14 Jur. 
 399 ; 19 L. J., M. C. 138. 
 
 Therfore, an indictment charging 
 a stealing of 70 pieces of the cur- 
 rent coin of the realm, called sov- 
 ereigns, of the value of 70Z., 140 
 pieces, called half-sovereigns, 500 
 pieces, &c., called crowns, &c., is 
 not supported by proof of a stealing 
 of a sum of money consisting of 
 some or other of the coins mention- 
 ed in the indictment, without proof 
 of some or one or more of the spe- 
 cific coins there charged to have been 
 stolen. Ih. 
 
 In an indictment for larceny, two 
 shillings stolen were described as 
 " two pieces of the current silver 
 coin of the realm, called shillings, 
 of the value of two shillings, of the 
 goods and chattels of S. F." : the 
 words " goods and chattels" may 
 be rejected as surplusage, and the 
 indictment is good. Reg. v. Rad- 
 ley, 3 New Sess. Cas. 651 ; T. & M. 
 144; 1 Den. C. C. 450 ; 2 C. & K. 
 974; 13 Jur. 544; 18 L. J., M. C. 
 184 ; 3 Cox, C. C. 460. 
 
 Before this Enactment. 1 — An in- 
 dictment for stealing lOZ. in monies 
 numbered was not sufficient ; some 
 of the pieces of which that money 
 consisted should be specified. Rex 
 V. Fry, R. & R. C. C. 482. 
 
 If the thing stolen was described 
 as a bank post-bill, and was not set 
 out, the coiirt could not take judi- 
 cial notice that it was a promissory 
 note, or that it w%s such an instru- 
 ment as under 2 Geo. 2, c. 25, might 
 be the subject of larceny, although 
 it was described as made for the 
 payment of money. Rex v. Ghard, 
 R. & R. C. C. 488. 
 
 Where an indictment described a 
 bank-note as signed by A. H. for 
 the Governor and Company of the 
 
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 LARCENY AND RECEIVERS. 
 
 Bank of England, and a prisoner 
 was convicted ; such conviction was 
 bad, there being no evidence of A. 
 H 's signature. Rex v. Graven, R. 
 & R. C. C. 14; 2 East, P. C. 601. 
 Dollars or Portugal money, not 
 current by proclamation, were not 
 goods within 24 Geo. 2, c. 45. Rex 
 V. Leigh, 1 Leach, C. C. 52 ; .S". P., 
 RexY. Grimes, 2 East, P. C. 646. 
 
 Cheques.'] — The servant of a 
 drawer of a cheque on bankers, to 
 whom it is given to deliver to a 
 third person, appropriating the value 
 to his own use, may be charged in 
 an indictment for stealing a valu- 
 able security, to wit, a cheque of 
 the value specified, without stating 
 the drawees to be bankers, lieg. v. 
 Heath, 2 AI. C. C. 33. 
 
 Artlclesof Trade or Merchandise.] 
 — A set of new handkerchiefs in a 
 piece may be described as so many 
 handkerchiefs, though they are not 
 separated one from another, if the 
 pattern designates each, and they 
 are described in the trade as so 
 many handkerchiefs. Rex v. Nihhs, 
 1 M. C. C. 25. 
 
 In an indictment for receiving 
 stolen tin, ingots of tin are properl}' 
 described as so many pounds weight 
 of tin. Reg. v. Mansfield, Car. & 
 M. 140 ; 5 Jur. 661— Coleridge. 
 
 So it would be proper to describe 
 a bar of iron as so many pounds of 
 iron. Ih. 
 
 An indictment for stealing " three 
 eggs of the value of twopence, of 
 the goods and chattels of S. H.," is 
 bad, for not stating the species of 
 eggs, because it does not shew that 
 the eggs stolen might not be such 
 as are not the subject of larceny. 
 Reg. V. Cox, 1 C. & K. 494— Tin- 
 dal. 
 
 An indictment describing the 
 property stolen as " one ham, of the 
 value of 10«., of the goods and chat- 
 tels of T. H.", is sufficient, as the 
 word " ham " has acquired a mean- 
 ing which is universally understood ; 
 
 and it is no objection, that it may 
 be taken to mean the ham of an an- 
 imal fera3 naturae or of a base na- 
 ture, inasmuch as the flesh of a dead 
 animal ferae naturae is the subject of 
 larceny, and the expenditure of la- 
 bour on the flesh or the skin of an- 
 imals of a base nature, at common 
 law, imparts to its value, and makes 
 it also the subject of larceny. Reg. v. 
 Gallears, 3 New Sess. Gas. 704 ; 1 
 Den. C. C. 601 ; 2 C. & K. 981 ; T. 
 & M. 196 ; 13 Jur. 1010 ; 19 L. J., 
 M. C. 13, 
 
 Animals.] — In cases of larceny of 
 animals terae naturae, the indictment 
 must shew that they were either 
 dead, tame, or confined, otherwise 
 they must be presiuned to be in 
 their original state. Rex v. Rough, 
 2 East, P. C. 607. And see Rk^ v. 
 Hudson, 2 East, P. C. 611. 
 
 And it is not suflicient to add, 
 " of the goods and chattels " of such 
 an one. Rex v. Rough, 2 East, P. 
 C. 607. 
 
 An indictment for stealing a dead 
 animal should state that it was 
 dead ; for upon a general statement 
 that a party stole the animal, it is 
 to be intended that he stole it alive. 
 Rex V. Edmiards, R. & R. C. C. 
 497— Holroyd. 
 
 Upon an indictment for stealing 
 a live animal, evidence cannot be 
 given of stealing a dead one. Ih. 
 
 But in Rex v. Puckering, 1 M. C. 
 C. 242, A. was indicted for receiv- 
 ing a lamb ; when he received the 
 lamb it was dead, and it was held 
 that the indictment was sufficient, 
 it being immaterial, as to the pris- 
 oner's offence, whether the lamb 
 was alive or dead, his offence, and 
 the punishment for it, being in both 
 cases the same. This case appears 
 to overrule Rex v. Edwards, R. & 
 R. C. C. 497. 
 
 An indictment for stealing four 
 live tame turkeys was laid in the 
 county of H. ; it appeared that the 
 prisoner stole them alive in the 
 comaty of C. and killed them there, 
 
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STEALING AND RECEIVING. 
 
 301 
 
 and tlieu brought them into the 
 county of H. :— Held, that as the 
 prisoner had not the turkeys m a 
 live state in the county of H., the 
 charge as laid was not proA-ed, and 
 that the word " live " in the de- 
 scription could not be rejected as 
 surplusage, and therefore that the 
 indictment was bad. Hex v. HaUo- 
 way, 1 C. & P. 128— Hullock. 
 
 An indictment charged the pris- 
 oner with having feloniously stolen 
 four tame pigeons : — Held, that the 
 word " tame " sufficiently shewed 
 that they were reclaimed, and that 
 such tame and reclaimed pigeons 
 are the subjects of larceny, notwith- 
 standing that they have the means 
 of ingress and egress at pleasure. 
 Beg.Y. Cheafor, 2 Den. C. C. 361 ; 
 T. & M. 621"; 15 Jur. 1065 ; 21 L. 
 J., M. C. 43 ; 5 Cox, C. C. 367. 
 
 (b) SteaUng and Receiving. 
 
 ■ By 24 & 25 Vict. c. 96, s. 92, " in 
 " any indictment containing a charge 
 " of feloniously stealing any prop- 
 " erty, it shall be lawful to add a 
 " count or several counts for felon- 
 " iously receiving the same or any 
 " part or parts thereof, knowing the 
 " same to have been stolen, and in 
 " any indictment for feloniously re- 
 " ceiving any property knowing it 
 " to have been stolen, it shall be 
 " lawful to add a count for felon- 
 " iously stealing the same ;" 
 
 " And where any such indictment 
 " shall have been preferred and 
 " found against any person, the 
 " prosecutor shall not be put to his 
 " election, but it shall be lawful for 
 " the jury who shall try the same to 
 " find a verdict of guilty, either of 
 " stealing the property, or of receiv- 
 " ing the same, or any part or parts 
 "•thereof, knowing the same to have 
 " been stolen ; 
 
 " And if such indictment shall 
 "have been preferred and found 
 " against two or more persons, it 
 " shall be lawful for the jury who 
 " shall try the same to find all or 
 
 " er of stealing the property or of 
 " receiving the same, or any part 
 " or parts thereof, knowing the 
 " same to have been stolen, or to 
 " find one or more of the said per- 
 " sons guilty of stealing the proper- 
 " ty, and the other or others of them 
 " guilty of receiving the same or any 
 " part or parts thereof knowing the 
 " same to have been stolen." {For- 
 mer provisions, 1 1 & 1 2 Vict. c. 46, 
 s. 3 ; 14 & 15 Vict. c. 100, s. 14.) 
 
 By s. 93, " whenever any proper- 
 " ty whatsoever shall have been 
 " stolen, taken, extorted, obtained, 
 " embezzled or otherwise disposed 
 " of in such a manner as to amount 
 " to a felony, either at common law 
 " or by virtue of this act, any num- 
 " ber of receivers at difi'erent times 
 " of such property, or of any part 
 " or parts thereof, may be charged 
 " with substantive felonies in the 
 " same indictment, and may be 
 " tried together, notwithstanding 
 '' that the principal felon shall not 
 " be included in the same indict- 
 " ment, or shall not be in custody 
 " or amenable to justice." [Former 
 provision, 14 & 15 Vict., c. 100 s. 
 15.) 
 
 Where a count for feloniously re- 
 ceiving property knowing it to be 
 stolen is joined with a count for fel- 
 oniously stealing, it must' appear 
 with sufficient certainty that the 
 property is the same in each count. 
 Reg. V. Sarsjield, 6 Cox, C. 0. 12. 
 
 In indictments under 11 & 12 
 Vict. c. 46, s. 3, there may be as 
 many counts charging a felonious 
 receiving as there are counts charg- 
 ing stealing ; and the prosecutor can- 
 not be put to his election on what 
 count or counts lie will proceed. 
 Reg. V. Beeton, 1 D#n. G; C. 414 ; T. 
 & 'xM. 87 ; 2 C. & K. 960 ; 4 New 
 Sess. Gas. 60 ; 13 Jur. 394 ; 18 L. J., 
 M. C. 117; 3 Cox, C. C. 451._ 
 
 Where a person is charged in two 
 counts with stealing and receiving, 
 the jury may return a verdict of 
 guilty on the latter count, if war- 
 yanted^.by the evidence, although 
 
302 
 
 LA41CENY AND RECEIVERS^ 
 
 the evidence is also consistent with 
 the prisoner having been a principal 
 in the second degree in the stealing. 
 Reg. V. Hilton, Bell, C. C. 20 ; 5 Jur., 
 N. S. 47 ; 28 L. J., M. C. 28 ; 7 W. 
 R. ."59 ; 32 L. T. 151. 
 
 A count for stealing articles may 
 not be joined with a count for re- 
 ceiving those and other articles, 
 knowing them to have been stolen. 
 Beg. y.^Ward,2F. & F. 19— Willes. 
 
 A first count charged the prison- 
 er with stealing certain goods and 
 chattels, and a second count charg- 
 ed him with receiving " the goods 
 and chattels aforesaid, of the value 
 aforesaid, so as aforesaid stolen." 
 After objection that he could not 
 be found to have feloniously receiv- 
 ed goods stolen by himself the case 
 went to the jury, and he was ac- 
 quitted upon the first count and 
 convicted upon the second : — Held, 
 that the conviction was good. Meg. 
 V. Huntley, Bell, C. C. 238 ; 8 Cox, 
 C. C. 260 ; 6 Jur., N. S. 80 ; 29 L. 
 J., M. C. 170 ; 8 W. R. 183 ; 1 L. 
 T., N. S. 384. 
 
 A count for receiving stolen 
 goods in a different county from 
 that in which the trial takes place, 
 coupled with other counts for the 
 larceny, under the 11 & 12 Vict. c. 
 46, must, by distinct and express 
 averments, shew upon the face of 
 it jurisdiction within the 7 & 8 Geo. 
 4, c. 29, s. 56. Reg. v. Martin, 3 
 New Sess. Cas. 575 ; T. & M. 78 ; 
 
 1 Den. C. C. 398 ; 2 C. & K. 950 ; 
 13 Jur. 368; 18L. J.,M. C. 137. 
 
 A receiver may be indicted for 
 receiving goods stolen by persons 
 unknown. Rex v. Thoiruxs, 2 East, 
 P. C. 781 ; 8. P., Rex v. BmUr.. 
 
 2 East, P. C. 781 ; 5 T. R. 83 ; 2 
 Leach, G. 0. 578. 
 
 A receiver, in the case of a sKeep 
 feloniously stolen alive and killed, 
 should be stated to have received 
 inutton. Rex v. Gowell, 2 East, P. 
 0. 617. 
 
 An indictment against a receiver 
 of stolen goods must aver the guilty 
 knowledge, which is the gist of the 
 
 offence, correctly. Rex v. Kernon, 
 2 Russ. C. & M. 562— Bay ley. 
 
 A count for a substantive felony 
 in receiving stolen goods, which 
 charged that the goods were stolen 
 by "a certain evil-disposed person," 
 is good. Rex v. Jervis, 6 C. & ]?. 
 156— Tindal. 
 
 To bring a case of receiving with- 
 in 7 & 8 Gio. 4, c. 29, s. 55, the in- 
 dictment must allege the goods to 
 have been obtained by false pre- 
 tences and known to have been so. 
 It is not enough to allege them to 
 have been " unlawfully obtained, 
 taken and carried away." Reg. v. 
 Wilson, 2 M. C. C. 52. 
 
 An indictment for receiving stolen 
 goods alleged that the prifoner re- 
 ceived the goods of A., " he, the 
 said A., then knowing them to have 
 been stolen." After a verdict of 
 guilty, the counsel moved an arrest 
 of judgment, on the ground that 
 the scienter was omitted ; but the 
 quarter sessions amended the indict- 
 ment by striking out " A.," and 
 substituting the name of the pris- 
 oner : — Held, first, that it was bad 
 as originally framed. Reg. v. Lar- 
 Mn, Dears. C. C. 365 ; 2 C. L. R. 
 775 ; 18 Jur. 539 ; 23 L. J., M. C. 
 125. 
 
 Held, secondly, that the objection 
 was taken at the proper time. lb. 
 
 Held, thirdly, that the indictment 
 was not amendable after verdict. 
 lb. 
 
 On an indictment for stealing and 
 receiving a mixture, it appeared 
 that the thief had stolen two sorts 
 of grain, and mixed them and sold 
 them to the prisoner : — Held, that 
 the latter could not be convicted on 
 such indictment. Reg. v. Robinson, 
 4 F. & P. 43— Pollock. 
 
 Where a prisoner was indicted for 
 stealing goods, and in a subsequent 
 count for receiving the goods, " so 
 as aforesaid feloniously stolen," and 
 the jury acquitted of the stealing 
 and convicted of the receiving, the 
 conviction was affirmed upon a case 
 reserved upon a motion in arrest of 
 
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JURISDICTION TO TRY. 
 
 303 
 
 judgment. Reg. v. Craddoch, T. & 
 M. 361; 2 Den. C. C. 31; 14 Jur. 
 1031; 20L.J.,M. C.31;4Cox,C. 
 C. 409. 
 
 "Where the receiving is so laid, the 
 judge should direct the jury to ac- 
 quit upon the count for receiving, if 
 they should not find the prisoner 
 guilty of stealing. Ih. 
 
 21. Jurisdiction to try. 
 Stealing.']— Bj 24 <fe 25 Vict. c. 96, 
 s. 1 1 4, " if any person shall have in 
 " his possession in any one part of the 
 " United Kingdom any chattel, mon- 
 " ey, valuable security or other prop- 
 " erty whatsoever, wliich he shall 
 " have stolen or otherwise felonious- 
 " ly taken in any other part of the 
 " United Kingdom, he may be dealt 
 " with, indicted, tried and punished 
 " for larceny or theft in that part of 
 " the United Kingdom where he 
 " shall so have such property, in the 
 " same manner as if he had actually 
 " stolen or taken it in that part ; and 
 " if any person in any one part of the 
 " United Kingdom shall receive or 
 " have any chattel, money, valuable 
 " security or other property whatso- 
 " ever which shall have been stolen or 
 " otherwise feloniously taken in any 
 " other part of the United Kingdom, 
 " such person knowing such proper- 
 " ty to have been stolen or otherwise 
 " feloniously taken, he may be dealt 
 " with, indicted, tried and punished 
 " for such offence in that part of the 
 " United Kingdom where he shall 
 " so receive or have such property, 
 " in the same manner as if it had 
 " been originally stolen or taken in 
 " that part." (Former provision, 1 
 & 8 Geo. 4, c. 29, s. 76.) 
 
 By 18 & 19 Vict. c. 126, " just- 
 " ices at petty sessions may try and 
 " convict in a summary way per- 
 " sons charged with having com- 
 " mitted simple larceny, where the 
 "value of the whole of the property 
 " alleged to have been stolen does 
 " not, in the judgment of the just- 
 " ices, exceed 5s., or with having 
 
 " attempted to commit larceny from 
 " the person, or simple larceny." 
 
 Larceny must be tried in the 
 county where committed ; but the 
 offence is considered as committed 
 in every county into which the 
 thief carries the goods. Rex v. 
 Thompson, 2 Russ. C. & M. 328. 
 
 If a man steals goods in one 
 county, and carries them into an- 
 other, it will be larceny in the. lat- 
 ter, though the goods are not car- 
 ried into the latter county until 
 long after the original theft. Rex 
 V. Parkin, 1 M. C. C. 45. 
 
 If a parish is partly situate in the 
 county of W., and partly in the 
 county of S., it is sufficient, in an 
 indictment for larceny, to state the 
 offence to have been committed at 
 the parish of H., in the county of 
 W. Rex V. Perkins, 4 C. & P. 363 . 
 —Park. 
 
 The court of quarter sessions has ' 
 jurisdiction to try cases of larceny 
 committed on the high seas where 
 the offender is apprehended within 
 the jurisdiction of such court. Reg. 
 V. Peel, L. & C. C. C. 231 ; 9 Cox, 
 C. C. 220 ; 32 L. J., M. C. 65 ; 8 
 Jur., N. S. 1185; 11 W. R. 40 ; 7 
 L. T., N. S. 336. 
 
 The prisoner stole a watch at 
 Liverpool, and sent it by railway 
 to a confederate in London : — Held, 
 that the constructive possession still 
 remained in the prisoner, and that 
 he was triable at the Middlesex 
 sessions. Reg. v. Rogers, 1 L. R. 
 C. C. 136; 18L. T., N. S. 414; 16 
 W. R. 733 ; 37 L. J., M. C. 83 ; 11 
 Cox, C. C. 38. 
 
 A person had stolen goods in 
 Guernsey and brought them to 
 England, where he was taken and 
 committed for trial : — Held, that, 
 Guernsey not being a part of the 
 United Kingdom, he could not be 
 convicted of larceny, for having 
 them in his possession here, nor of 
 receiving in England the goods so 
 stolen in Guernsey. Reg. v. De- 
 bruiel, 11 Cox, C. C. 207--ByleB. 
 
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304 
 
 LARCENY AKD RECEIVERS. 
 
 Heceivingt.] — By 24 & 25 Vict. c. 
 96, s. 96, " whosoever shall receive 
 " any chattel, money, valuable se- 
 " curity or other property whatso- 
 " ever, knowing the same to have 
 "been feloniously or unlawfully 
 " stolen, taken, obtained, converted 
 " or disposed of, may, whether 
 " .charged as an accessory after the 
 " fact to the felony, or with a sub- 
 " stantive felony, or with a misde- 
 " meaner only, be dealt with, in- 
 " dieted, tried and punished in any 
 " county or place, in which he shall 
 " have or shall have had any such 
 " property in his possession, or in 
 " any county or place in which the 
 " party guilty of the principal fel- 
 " ony or misdemeanor may by law 
 " be tried, in the same manner as 
 " such receiver may be dealt with, 
 " indicted, tried and punished in the 
 " county or place where he actually 
 " received such property." {Former 
 enactment, 7 & 8 Geo. 4, c. 29, s. 
 56.) 
 
 The half of a bank note, which 
 had been stolen during its transit 
 through the post-oifice from S. in 
 Wiltshire to Bristol, was afterwards 
 inclosed by the prisoner in a letter 
 addressed to the bankers at S., re- 
 questing payment of it. This letter 
 was posted by the prisoner at Bath, 
 and arrived with its contents in due 
 course at S. There was no other 
 evidence of any receipt or posses- 
 sion by the prisoner iii Wiltshire : — 
 Held, upon an indictment for receiv- 
 ing the stolen half note, that he was 
 rightly tried in Wiltshire, as the 
 possession of the post-office servants, 
 or of the bankers in Wiltshire, was 
 his possession, and the case therefore 
 was within 7 & 8 Geo. 4, c. 29, s. 
 56. Reg. v. Gryer, Dears. & B. C. 
 C. 324 ; 3 Jur., N. S. 698 : 26 L. J., 
 M. C. 192. 
 
 Within Admiralty Jurisdiction.'] 
 —By 24 & 25 Vict. c. 96, s. 115, 
 " all indictable oifences mentioned 
 "in the act which shall be com- 
 " mitted within the jurisdiction of 
 
 ' the Admiralty of England or Ire- 
 ' land shall be deemed to be oifences 
 ' of the same nature, and liable to 
 ' the same punishments, as if they 
 ' had been committed upon the land 
 ' in England or Ireland, and may 
 ' be dealt with, inquired of, tried 
 ' and determined in any county or 
 ' place in which the offender shall 
 ' be apprehended or be in custody ; 
 ' and in any indictment for any such 
 
 ■ offence, or for being an accessory 
 
 ■ to any such offence, the venue in 
 
 ' the margin shall be the same as if 
 • the offence had been committed in 
 " such county or place, and the of- 
 " fence itself shall be averred to have 
 " been committed ' on the high seas ': 
 " provided, that nothing herein con- 
 " tained shall alter or affect any of 
 " the laws relating to the govern- 
 " ment of her Majesty's land or na- 
 " val forces." 
 
 22. Evidence. 
 
 Stealing.] — A statement made by 
 a prisoner before suspicion attaches 
 to him, and before search made, in 
 order to account for his possession 
 of property, which he is afterwards 
 charged with having stolen, is ad- 
 missible as evidence for him. Beg. 
 V. Abraham, 2 C. & K. 550— Al- 
 derson. 
 
 Where a prisoner charged with 
 larceny has given, two different ac- 
 counts of the way in which he be- 
 came possessed of the stolen proper- 
 ty, it is not incumbent on the pros- 
 ecutor to call as witnesses persons 
 whom, in one of the statements, he 
 says could prove his innocence, with 
 a view of disproving that statement, 
 but it may be prudent in the prose- 
 cutor to have these persons in at- 
 tendance at the trial, though he 
 does not call them, to avoid the ef- 
 fect of the observations by the pris- 
 oner or his counsel that these persons 
 could prove the prisoner's innocence, 
 but that he has not the means of 
 procuring their attendance. Meg. 
 V. Sibley, 2 C. & K. 818— Piatt. 
 
 Neither upon an indictment for 
 
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EVIDENCE. 
 
 305 
 
 stealing nor receiving can evidence 
 be given that the prisoner had at 
 the time, or previously, other stolen 
 goods in liis possession. Rcfj. v. 
 Oddy, T. & M. 593 ; 2 Den.'C. C. 
 264 ; 20 L. J.,M. C. 108; 5 Cox, C. 
 C. 210. 
 
 Where a person stole two pigs 
 belonging to the same person at 
 the same time, and after being con- 
 victed and punished for stealing one 
 of the pigs, was indicted at a subse- 
 quent assize for stealing the other : 
 — Held, \h^\, this might legally be 
 done ; but semble, that, in such a 
 case, the second prosecution ought 
 not to be proceeded with. B,6g. v. 
 Brettell, Car. & M. 609— Cresswell. 
 A prisoner was indicted for steal- 
 ing three articles. Having taken 
 the first article, he returned in about 
 two ininutes, and took the second, 
 and then returned in half an hour 
 and took the third : — Held, that the 
 last taking was a distinct felony, 
 and could not be given in evidence 
 with the other two ; but, that the 
 interval of time between the first 
 and second taking was so short, 
 that they must be considered as 
 parts of the same transaction. Rex 
 v. Birdseye, 4 C. & P. 386— Little- 
 dale. 
 
 A. went to the shop of B., and 
 asked for shawls for Mrs. D. to look 
 at ; B. gave her five, she pawned 
 two, and three were found at her 
 lodgings. Mrs. D. was nor called 
 as a witness : — Held, that A. could 
 not be convicted of a larceny in 
 stealing the goods of B. Rex v. 
 Savage, 5 C. & P. 143— Patteson. 
 
 W. was indicted for larceny for 
 stealing six pounds of brass from a 
 foundry. The only suggested evi- 
 dence ofifered at the trial was, that 
 the prisoner, who was employed 
 upon the premises, had been seen 
 to come into the place where the 
 brass was kept :— Held, that there 
 was not a scintilla of evidence to 
 go to the jury. Reg. v. Walker, 
 Dears. C. C. 280. 
 
 Two prisoners were charged with 
 
 stealing four sacks of barley and 
 three sack bags from their master. 
 The prisoners and B. were employ- 
 ed by the prosecutor to winnow bar- 
 ley, which he had mixed with cana- 
 ry seed. One of the prisoners 
 fetched several sacks from the pros- 
 ecutor's house, which he and B. 
 filled with barley. The two prison- 
 ers then sent B. home before the usu- 
 al time. At twelve o'clock on the 
 night of the same day, the carter 
 went into the stable with a lantern, 
 and shortly afterwards the prison- 
 ers entered the stable. In a few 
 minutes after this the prosecutor 
 saw the carter in the loft above 
 with a lantern, and found the pris- 
 oners concealed under straw in the 
 loft, and then in a dust-bin in a sta- 
 ble beneath he found three sacks 
 full of barley mixed with canary 
 seed, which he swore was of the 
 same kind which he had mixed. It 
 was no part of the duty of the pris- 
 oners to place the barley in sacks 
 or to put the sacks of barley into 
 the dust-bin. The jury found both 
 the prisoners guilty : — Held,thatthe 
 evidence was sufficient to support 
 the conviction. Reg. v. Samways, 
 Dears. C. C. 371. 
 
 Though no portion of the prose- 
 cutor's goods has been missed, it is 
 a question for the jury, under all 
 the circumstances of the case, wheth- 
 er the goods, which are the subject 
 of the indictment, are his property. 
 Reg. V. Hooper, 1 F. & F. 85— 
 Willes. 
 
 Upon the trial of an indictment 
 for larceny, if the circumstantial 
 evidence satisfies the jury of the 
 guilt of the prisoner, he may be con- 
 victed, though the prosecutor is un- 
 able to swear that he has lost the 
 thing charged to have been stolen. 
 Reg. V. Burton, 6 Cox, C. C, 293 ; 
 23 L. J., M. C. 52. 
 
 Production of Article Stolen.\ — 
 On an indictment against A. and 
 B., for burglary, one of the articles 
 stolen (the only one directly proved 
 
 Fish. Dig.— 23.£)/g/f/zecf by Microsoft® 
 
306 
 
 LAECENT AND RECEIVERS. 
 
 to have been in the possession of 
 either of them) being a ring, which 
 was described particularly by the 
 prosecutor, and proved to have had 
 an inscription upon it, and to have 
 been just like one he produced ; 
 and one of the prisoners being 
 proved to have shewn, soon after 
 the burglary, a ring which was 
 proved to have been just like that 
 produced, and to have had an in- 
 scription upon it, but no notice to 
 produce which had been given : — 
 Held, that the contents of the in- 
 scription on the prosecutor's ring 
 could not be proved, and that, as 
 there had been no notice given to 
 the prisoner to produce the ring 
 shewn by him to the witness, the 
 contents of the inscription upon it 
 could not be proved. Reg. v. Farr. 
 4 P. & F. 336— Channell. 
 
 On an indictment for the larceny 
 of a bill of exchange obtained from 
 the prosecutor, under a pretence of 
 discounting it, parol evidence of the 
 bill may be given after proof of a 
 subpoena duces tecum given to the 
 person in whose possession it was 
 shewn to be previously to the trial, 
 but who did not attend. Rex, v. 
 Aickles, 1 Leach, C. C. 294 ; 2 East, 
 P. C. 675. 
 
 Of Receiving.] — If the prisoner 
 at different times receives property 
 stolen from the prosecutor, although 
 the substantive charge must be con- 
 fined to some one receiving, yet the 
 other receivings may be given in 
 evidence to shew a guilty knowl- 
 edge that the goods were stolen. 
 Rex V. Dunn, Car. C. L. 132 ; 1 M. 
 C. C. 146. 
 
 A prisoner was indicted for re- 
 ceiving stolen goods, knowing them 
 to have been stolen ; to prove the 
 scienter, evidence was given, that 
 on a previous occasion other stolen 
 goods, the property of different own- 
 ers, had been found in the posses- 
 sion of the prisoner : — Held, that 
 the evidence was improperly ad- 
 mitted, as it is a general principle 
 
 of the law of England, that proof 
 that a man had committed one of- 
 fence is no proof that he has com- 
 mitted another, and as- the posses- 
 sion of stolen goods on a previous 
 occasion could not shew any knowl- 
 edge on the part of the prisoner 
 that the particular goods mentioned 
 in the indictment, were stolen. 
 Reg. V. Oddy, 2 Den. C. C. 264 ; 15 
 Jur. 517; ^ L. J., M. C. 108; 5 
 Cox, C. C. 210. 
 
 If an indictment against a receiv- 
 er states the principal felony to have 
 been committed by A., whatever 
 would have been evidence of the" 
 principal felony to convict A., is re- 
 ceivable to prove this allegation on 
 the trial of the receiver, but is not 
 conclusive. Rex v. Blick, 4 0. & 
 P. 377 — Bosanquet. 
 
 In an indictment for receiving 
 stolen goods, knowing them to have 
 been stolen by a person named, the 
 stealing by the person must be prov- 
 ed, or the receiver must be acquit- 
 ted. Rex V. Woolford, 1 M. & Kob. 
 384 — Patteson. 
 
 Stolen property being found con- 
 cealed in an old engine-house, and it 
 being watched, the prisoners were 
 taking it away : — Held, that, to war- 
 rant the conviction of the prisoners on 
 an indictment charging them as re- 
 ceivers, the jury must be satisfied that 
 the property had been stolen by 
 ■some other person to the knowledge 
 of the prisoners, and that there 
 should be some evidence to shew 
 that such was the case. Rex v. 
 Densley, 6 C. & P. 399— Patteson. 
 
 A prisoner was to be tried on 
 three indictments : for receiving stol- 
 en tin, for stealing iron, and for 
 receiving stolen brass. A Nonstable 
 went with a search-warrant to search 
 the prisoner's premises for stolen 
 iron, and, Tiaving read the warrant 
 to the prisoner, the latter made a 
 statement : — Held, on the trial of 
 the first indictment, that the whole 
 of the statement was receivable, al- 
 though part of it related to the 
 charge respecting the iron ; and al- 
 
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RESTITUTION AND RECOVERY. 
 
 307 
 
 so, that evidence might be o-iven, 
 that, at the time of the search, the 
 prisoner endeavored to conceal some 
 brass, and also, that almost imme- 
 diately after he T\as taken away 
 from the premises, at the conclusion 
 of the search, his wife carried some 
 tin under her cloak from a ware- 
 house on the premises. Reg. v. 
 Mansfield, Car. & M. 140— Coler- 
 idge. 
 
 On an indictment against A. for 
 stealing, and B. for receiving goods, 
 evidence that on various fprmer oc- 
 casions portions of the commodity 
 stolen have been missed, and that 
 the prisoners have, after such occa- 
 sions, been found selling such a com- 
 modity ; and that on the last occa- 
 sion it was part of what was stolen, 
 is sufficient to fix the receiver with 
 a guilty knowledge, lieg. v. Nich- 
 olls, 1 F. & F. 51— Cockburn. 
 
 To justify a conviction for receiv- 
 ing stolen property in the case of 
 goods found, it is not suflicient to 
 shew that the prisoner had a gener- 
 al knowledge of the circumstances 
 under which the goods were taken, 
 unless the jury is also satisfied that 
 he knew that the circumstances 
 were such as constituted a lai'ceny. 
 Reg. V. Adams, 1 F. & F. 86— 
 Crowder. 
 
 An admission of his guilt, made 
 by the thief while in custody, in the 
 presence of the receiver, is evidence 
 against the receiver. Reg. v. Oox, 
 1 F. & F. 90— Crowder. 
 
 In an indictment for receiving 
 goods, knowing them to have been 
 stolen, belief without actual knowl- 
 edge is suflicient to sustain it. 
 Reg. V. Wliite, 1 F. & F. 605- 
 Bramwell. 
 
 In an indictment for' receiving 
 goods knowing them to be stolen, 
 evidence that the thief had at one 
 time been lawfully employed to 
 sell such articles to the prisoner, 
 will warrant an acquittal in the ab- 
 sence of any evidence that the pris- 
 oner knew that the authority had 
 
 been withdrawn. Reg. v. Wood, 1 
 F. & F. 497— Martin. 
 
 The prisoner had been a lodger 
 in the prosecutor's house, and left 
 under circumstances not disclosed. 
 On the following day the prosecu- 
 tor's wife also left the house, taking 
 with her a small bundle. Two days 
 after the prisoner was found in com- 
 pany with the prosecutor's wife 
 (who was passing by the prisoner's 
 name) on board a ship bound for 
 Quebec. Property belonging to 
 the prosecutor, of a bulk greater 
 than could have been comprised in 
 the bundle taken by the wife, was 
 found in the prisoner's cabin and 
 upon his person : — Held, that there 
 was some evideilce to support a con- 
 viction for receiving the property, 
 knowing it to have been stolen. 
 Reg. V. Deer, L. & C. 240 ; 9 Cox, 
 C. C. 225; 8 Jur., N. S. 1216; 32 
 L. J., M. C. 33; 11 W. R. 43; 7 
 L. T., N. S. 366. 
 
 On an indictment for feloniously 
 receiving goods, knowing them to 
 have been stolen, it is unsafe to con- 
 vict a party as receiver on the evi- 
 dence of the thief, unless it is con- 
 firmed. Reg. V. Robinson, 4 F. & 
 F. 43— Pollock. 
 
 On an indictment for receiving 
 goods, knowing them to have been 
 stolen,, the mere fact that they were 
 found on the prisoner's premises is 
 not sufficient to confirm the evidence 
 of the thief, so far as to make it 
 proper to convict. Reg. v. Pratt, 
 4 F. & F. 315— Pollock. 
 
 \ 
 
 23. Punishment. 
 
 (24 & 25 Vict. c. 96, M. 7, 8, 9, 98, 
 99.) 
 
 24. Restitution and Recovery of Stol- 
 en Property. 
 
 Restitution.] — By 24 & 25 Vict, 
 c. 96, s. 100, " if any person guilty 
 " of any such felony or misdemean- 
 " or as is mentioned in the act, in 
 " stealing, taking, obtaining, ex- 
 
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308 
 
 LARCENY AND RECEIVERS. 
 
 " tovting, embezzling, converting 
 ' ' or disposing of, or in knowingly 
 " receiving, any chattel, money, 
 " valuable security, or other prop- 
 " erty whatsoever, shall be indicted 
 " for such offence, by or on the be- 
 " half of the owner of the property, 
 " or his executor or administrator, 
 " and convicted thereof, in such 
 " case the property shall be restored 
 " to the owner or his representative ; 
 " and in every case in this section 
 " aforesaid, the court before whom 
 " any person shall be tried for any 
 " such felony or misdemeanor, shall 
 " have power to award, from time 
 " to time, writs of restitution for 
 " the said property, or to order the 
 " the restitution thereof in a sum- 
 " mary manner : provided that if it 
 " shall appear, before any award or 
 " order made, that any valuable se- 
 " curity shall have been bona fide 
 " paid or discharged by some per- 
 " son or body corporate liable to 
 " the payment thereof, or being a 
 " negotiable instrument, shall have 
 " been bona fide taken or received 
 " by transfer or delivery, by some 
 " person or body corpoi-ate for a 
 "just and valuable consideration, 
 " without any notice, or without 
 " any reasonable cause to suspect 
 " that the same had by any felony 
 " or misdemeanor been stolen, taken, 
 " obtained, extorted, embezzled, con- 
 " verted or disposed of, in such 
 " case the court shall not award or 
 " order the restitution of such secu- 
 " rity ; provided also, that nothing 
 " in this section contained shall ap- 
 " ply to the case of any prosecution 
 " of any trustee, banker, merchant, 
 " attorney, factor, broker, or other 
 " agent intrusted with the posses- 
 " sion of goods, or documents of ti- 
 " tie to goods, for any misdemean- 
 " or against this act." (^Former 
 provision, 7 & 8 Geo. 4, c. 29, s. 
 57.) 
 
 By 30 & 31 Vict. c. 35, s. 9, 
 " where any prisoner shall be con- 
 " victed, either summarily or other- 
 " wise, of larceny or other ofience 
 
 '■ which includes the stealing of any 
 " property, and it shall appear to 
 " tlie court by the evidence that the 
 " prisoner has sold the stolen prop- 
 " erty to any person, and that such 
 " person has had no knowledge that 
 " the same was stolen, and that any 
 " monies have been taken from the 
 " prisoner on his apprehension, it 
 " ijhall be lawful for the court, on 
 " the application of such purchaser, 
 " and on"tlie restoration of the stol- 
 " en property to the prosecutor, to 
 " order that out of such monies a 
 " sum not exceeding the amount of 
 ■' the proceeds of such sale be de- 
 " livered to the purchaser." 
 
 7 & 8 Geo. 4, c. 29, repealed 4 
 Geo. 4, c. 11, except as to piracy, 
 and 9 Geo. 4, c. 31, wholly repeals 1 
 Geo. 4, c. 115. 
 
 The 21 Hen. 8, c. 11, which re- 
 stored goods to a prosecutor on con- 
 viction of the person who took them 
 away, extended only to a felonious 
 and not to a fraudulent taking. 
 JRex V. De Veaux, 2 Leach, C. C- 
 585 ; 2 East, P. C. 789, 839. 
 
 Where a pjasoner pleaded guilty 
 to several indictments charging him 
 with larceny, and an application 
 was made on the part of the prose- 
 cutor for an order for restitution, 
 the court consented to hear counsel 
 on behalf of those who were in pos-, 
 session of the goods, and against 
 whom the order, if made, would op- 
 erate. Beg. V. Macklin, 5 Cox, C. 
 C. 216 — Alderson and Martin. 
 
 Where, under such circumstan- 
 ces, the depositions taken before the 
 magistrate disclosed a clear case of 
 felony, the court declined to order 
 a writ of restitution to issue on the 
 suggestion of the holders of the 
 goods that the prisoner was an 
 agent, and therefore that the fraud- 
 ulent dealing with the goods on his 
 part did not constitute a felony, but 
 the court made the common order 
 foi- restitution. Ih. 
 
 The court cannot, under the 7 & 
 8 Geo. 4, c. 29, s. 57, order a Bank 
 of England note which has been 
 
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RESTITUTION AND RECOVERY. 
 
 309 
 
 paid and cancelled, to be delivered 
 up to the prosecutor of an indict- 
 ment against the party who stole 
 it. HexY. Stanton, 7 C. & P. 431. 
 
 By 7 & 8 Geo. 4, c. 29, s. 57, the 
 property in a stolen chattel revests 
 in the owner on the conviction of 
 the thief, and the owner may maiu- 
 taiji trover for it, though there has 
 been no order for restitution. Scatter- 
 good v. Sylvester, 15 Q. B. 506. 
 
 A. & B. were convicted of steal- 
 ing the goods of C. ; D., before they 
 were convicted, acquired a title to 
 the goods by making an advance 
 of money bona fide, to A., who was 
 the servant and agent of C, and 
 had established liis title to the goods 
 in trover brought against him for 
 their recovery by C. : — Held, that, 
 notwithstanding the title had been 
 acquired under 5 & 6 Vict. c. 39, 
 by D., the goods on the conviction 
 of A. and B. revested in C, and the 
 court ordered them to be restored. 
 Heg. V. Wollez, in re Hart, 8 Cox, 
 C. C. 337— Kerr, Com., C. C. C. 
 
 The order not being obeyed, a 
 rule was obtained calling upon D. to 
 shew cause why he should not be 
 attached for contempt, and a cross 
 rule was obtained calling upon the 
 prosecutor to shew cause why the 
 order of restitution should not be re- 
 scinded ; the court made the rule 
 absolute for an attachment. Ih. 
 
 The court of Queen's Bench has 
 at common law no jurisdiction to 
 issue a writ of restitution except as 
 part of the judgment on an appeal 
 of larceny ; and 21 Hen. 8, c. 11, 
 and 24 &'25 Vict. c. 96, s. 100, 
 only confer this jurisdiction on the 
 court before whom the felon has 
 been convicted. Where, therefore, 
 a person has been convicted of 
 housebreaking and larceny before 
 the Central Criminal Court, the 
 court of Queen's Bench has no pow- 
 er to award a writ of restitution of 
 the proceeds of the larceny. Recj. 
 y.. London {Mayor, ^c)), 4 L. R., Q. 
 B. 371 ; 17 W. R. 722 ; S. G. nom. 
 Walker v. London {Mayor, S^c.), 11 
 
 Cox, C. C. 280 ; 20 L. T., N. S. 
 C04; 38L. J., M. C. 107. 
 
 Taking or advertising Rewards 
 for return of Stolen Property. '\ — By 
 s. 101, "whosoever shall corruptly 
 " take any money or reward, direct- 
 " ly or indirectly, mider pretence or 
 " upon account of helping any per- 
 " son to any chattel, money, valua- 
 " ble security, or otlier property 
 " whatsoever, which shall, by any 
 " felony or misdemeanor, have been 
 " stolen, taken, obtained, extorted, 
 " embezzled, converted or disposed 
 " of, as in this act before mentioned, 
 " shall (unless he shall have used all 
 " due diligence to cause the oifender 
 " to be brought to trial for the 
 " same) be guilty of felony, and be- 
 •' ing convicted thereof shall be 
 " liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for any term not exceeding 
 " seven years and not less than five 
 " years (27 & 28 Viet. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labor, and with or with- 
 " out solitary confinement ; and, if a 
 " male under the age of eighteen 
 " years, with or without whipping." 
 [Former provision, 7 & 8 Geo. 4, c. 
 29, s. 58. J3y 1 &9, Geo. 4, o. 27, 
 the 21 Hen. 8, c. 11, was loholly re- 
 pealed. 
 
 It was an ofience within 4 Geo. 1, 
 c. 1 1, 's. 4, to take money under pre- 
 tence of helping a man to goods 
 stolen from him, thovigh the jsris- 
 oner had no acquaintance with the 
 felon, and did not j^i'etend that he 
 had, and though he had no power to 
 apprehend the felon, and though the 
 goods were never restored, and the 
 prisoner had not power to restore 
 them. Rex v. Ledbitter, 1 M. C. C. 
 76. 
 
 By s. 102, " whosoever shall pub- 
 " licly advertise a reward for the re- 
 " turn of any property whatsoever, 
 " which shall have been stolen or 
 " lost, and shall in such advertise- 
 " ment use any words purporting 
 
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310 
 
 MALICIOtrS INJURY. 
 
 " that no questions will be asked, or 
 " shall make use of any words in 
 " any public advertisement purport- 
 " ing that a reward will be given or 
 " paid for any property which shall 
 " have been stolen or lost, without 
 " seizing or making any inquiry after 
 " the i^erson producing such prop- 
 " erty, or shall promise or offer in 
 " any such public advertisement to 
 " return to any pawnbroker or other 
 " person who may have bought, or 
 " advanced money by way of loan 
 " upon, any property stolen or lost, 
 " the money so paid or advanced, or 
 " any other sum of money or reward 
 " for the return of such property, or 
 " shall print or publish any such 
 " advertisement, shall forfeit the sum 
 " of 50^. for every such offence, to 
 " any person who will sue for the 
 " same by action of debt, to be re- 
 " covered, with full costs of suit." 
 [Similar to former provision, 7 & 8 
 Geo. 4, c. 29, s. 59.) ' 
 
 On an indictment against A., for 
 corruptly and feloniously receiving 
 from B. money under pretence of 
 helping B. to recoA'er goods before 
 then stolen from B., and for not 
 causing the thieves to be apprehend- 
 ed, three questions were left to the 
 j ury : First, did A. mean to screen 
 the guilty parties, or to share the 
 money with them ? Second, did A. 
 know the thieves, and intend to as- 
 sist them in getting rid of the prop- 
 erty, by promising B. to buy it ? 
 Third, did A. know the thieves, and 
 assist B., as her agent, and at her re- 
 quest, in endeavouring to purchase 
 the stolen property from them, not 
 meaning to bring the thieves to jus- 
 tice ? The jury answered the first 
 question in the negative, and the 
 third in the affirmative: — Held, that 
 the receipt of the money under the 
 circumstances was a corrupt receiv- 
 ing of the money by A. Seff. v. 
 I'ascoe, 4 New Sess. Gas. 66 ; 2 C, 
 & K. 927 ; 1 Den. C. C. 456 ; T. & 
 M. 141 ; 13 Jur. 544 ; 18 L. J., M. 
 C. 186. 
 
 XXI. Malicious lN,jtTRY to Prop- 
 EETY, Cattle and other An- 
 imals. 
 
 1. Hovses or Buildings, by Tenants, 
 
 310. 
 
 2. Maivifaclures and Materials, 310. 
 
 3. Miicliinery, 312. 
 
 4. Mines, 3 is. 
 
 5. Sea and River Banlcs, 315. 
 
 6. Ships and Sea Signals, 315. 
 
 7. FisiPonds, 317. 
 
 8. Trees, Shrubs, Fences and Vege- 
 
 laltl.s, 318. 
 
 9. Bopbinds, 320. 
 
 10. Works of Art, 320. 
 
 11. Indictment, 321. 
 
 12. Amount of Injurg, 321. 
 
 13. Witnesses, 321 . ' 
 
 14. Killing or Maiming Cattle or other 
 
 Animals. 322. 
 
 15. Bdilwat/s and Telegraphs — See 
 
 XXX. Railways. 
 
 1. Houses or Buildings, hy Ten- 
 ants. 
 By 24 & 25 Vict. c. 97, s. 13, 
 " whosoever, being possessed of any 
 "dwelling-house or other, building, 
 " or part of any dwelling-house 
 " or other building, held for any 
 " term of years or other less term, 
 " or at will, or held over after 
 " the tei-mination of any tenancy, 
 "shall unlawfully and maliciously 
 " pull down or demolish, or begin 
 " to pull down or demolish, the same 
 " or any pa»t thereof, or shall un- 
 " lawfully and maliciously pull down 
 " or sever from the freehold any fix- 
 " ture beipg fixed in or to such 
 " dwelling-house or building, or part 
 " of such dwelling-house or build- 
 " ing, shall be guilty of a misde- 
 " meaner." 
 
 2. Manufactures and Materials. 
 By 24 & 25 Vict. c. 97, s. 14, 
 " whosoever shall unlawfully and 
 " maliciously cut, break, or destroy, 
 " or damage with intent to destroy 
 " or to render useless, any goods or 
 " article of silk, woolen, linen, cot- 
 " ton, hair, mohair, or alpaca, or of 
 " any one or more of those materi- 
 " als mixed with each other or 
 " mixed with any other/ material, 
 
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MANUFACTURES AND MATERIALS. 
 
 311 
 
 or any frame work- knitted piece, 
 stocking, liose, or lace, being in 
 the loom or frame, or on any ma- 
 chine or engine, or on the rack or 
 tenters, or in any stage, process, 
 or progress of manufactm-e, or 
 shall milawfully and maliciously 
 cut, break, or destroy, or damage 
 with intent to destroy or to render 
 useless, any warp or shute of silk, 
 woolen, linen, cotton, hair, mo- 
 hair, or alpaca, or of any one or 
 more of those materials mixed 
 with each other or mixed with any 
 other material, or shall unlawfully 
 and maliciously cut, break, or de- 
 stroy, or damage with intent to 
 destroy or render useless, any 
 loom, frame, machine, engine, 
 rack, tackle, tool, or implement, 
 whether fixed or moveable, pre- 
 pared for or employed in carding, 
 spinning, throwing, weaving, full- 
 ing, shearing, or otherwise manu- 
 facturing or preparing any such 
 goods or articles, or shall by force 
 enter into any house, shop, build- 
 ing, or place, with intent to com- 
 mit any of the oifences in this sec- 
 tion merrtioned, shall be guilty of 
 felony, and being convicted there- 
 of shall be liable, at the discretion 
 of the court, to be kept in penal 
 servitude for life, or for any tenn 
 not less than five years (27 & 28 
 Vict. c. 47), or to ba imprisoned 
 for any term not exceeding two 
 yeai-s, with or without hard labour, 
 and with or without solitary con- 
 finement, and, if a male under the 
 age of sixteen years, with or with- 
 out whipping." (JPreviou^ enact- 
 ment, 7 & 8 Geo. 4, c. 30, s. 3.) 
 
 Bi/ 4 Geo. 4, c. 46, and 7 & 8 
 Geo. 4, c. 27, so much of 22 Geo. 3, 
 c. 40, 28 Geo. 3, c. 55, and 4 Geo. 
 4, c. id, r elating i.0 this subject, were 
 repealed ; and 24c & 25 Vict. c. 95, 
 s. ] , repeals 7 & 8 Geo. 4, c. 30. 
 
 Goods remain in " a stage, pro- 
 cess, or progress of manufacture," 
 within 7 & 8 Geo. 4, c. 30, s. 3, 
 though the texture is complete, if 
 they are not yet brought into a con- 
 
 dition fit for sale. Rex v. Wood- 
 head, 1 M. & Rob. 549— Coleridge. 
 
 An indictment on 7 & 8 Geo. 4, 
 c. 30, s. 3, for feloniously damaging 
 warps of linen yarn, with intent to 
 destroy or render them useless, need 
 not allege that the warps at the time 
 of the damage done were prepared 
 for or employed in carding, spin- 
 ning, weaving, &c., or otherwise 
 manufacturing or preparing any 
 goods or articles of silk, woolen, 
 linen, &c. Rex v. Ashton, 2 B. & 
 Ad. 750. 
 
 A warp not sized, but on its way 
 to the sizers to be sized to fit it for 
 being used in manufacturing goods, 
 is not a " warp in any stage, process 
 or progress of manufacture," or pre- 
 pared for or employed in carding, 
 spinning, &c., within 7 & 8 Geo. 4, 
 c. 30, s. 3, though the indictment is 
 not bad for not' averring it to be so. 
 Reg. V. Glegg, 3 Cox, C. C. 295 — 
 Alderson. 
 
 The cords employed to raise the 
 harness or the working tools of a 
 loom, in order to move the shuttle 
 to and fro, constitute tackle em- 
 ployed in weaving, and, therefore, 
 cutting them was an oifence within 
 7 & 8 Geo. 4, c. 30, s. 3. Reg. v. 
 Smith, 6 Cox, C. C. 198— Williams. 
 
 Under this statute, the malicious- 
 ly cutting such tackle is a complete 
 offence, and it is imnecessary to aver 
 or prove an intent to destroy or ren- 
 der it useless. lb. 
 
 Qusere, whether cutting the thrum, 
 i. e., the ends of the woolen threads 
 generally left in the machine when 
 a piece of cloth is finished, for the 
 purpose of more readily adjusting 
 the succeeding work, is an ofience 
 within the statute ? At all events, 
 it does not support a count for ma- 
 liciously cutting woolen warp ; but 
 the fact of cutting the thrum may 
 be given in evidence in support of a 
 count for cutting tackle, in order to 
 shew the animus of the latter act, 
 and that it was done maliciously. 
 lb. 
 
 The taking out and carrying away 
 
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312 
 
 MALICIOUS INJURY. 
 
 the piece of iron called the half-jack, 
 from a frame used for the making of 
 frame-work knitted stockings, was 
 a damaging the fi-ame, within 28 
 Geo. 3, c. 55, s. 4, as it made the 
 frame imperfect and inoperative, al- 
 though the part taken out was not 
 injured, and the replacing it would 
 again make the frame pejiect. Rex 
 V. Tacey, R. & R. C. C. 452. 
 
 The cutting or destroying part of 
 a loom was not within 22 Geo. 3, c. 
 40, R. 1, although the charge in the 
 indictment was of an intent to cut 
 and destroy certain tools employed 
 in the woolen trade. Rex v. Hill, 
 R. & R. C. C. 483. 
 
 3. Machinery. ' 
 By 24 & 2o Vict. c. 97, s. 15, 
 " whos(4Bver shall unlawfully and 
 " maliciously cut, break, or destroy, 
 " or damage with intent to destroy 
 " or to render useless, any machine 
 " or engine, whether fixed or move- 
 " able, used or intended to be used 
 " for sowing, reaping, mowing, 
 " threshing, plowing, or draining, or 
 " for performing any other agricul- 
 " tural operation, or any machine or 
 " engine, or any tool or implement, 
 " whether fixed or moveable, pre- 
 " pared for or employed in any man- 
 " ufacture whatsoever (except the 
 " manufacture of silk, woolen, linen, 
 " cotton, hair, mohair, or alpaca 
 " goods, or goods of any one or 
 " more of those materials mixed 
 " with each other or mixed with any 
 " other material, or any framework- 
 " knitted piece, stockingj hose, or 
 "lace), shall be guilty of felony, 
 " and, being convicted thereof, shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for any term not exceeding 
 " seven years, and not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour, and with or with- 
 " out solitary confinement, and, if a 
 " male under the age cf sixteen 
 " years, with or without whipping." 
 
 {Former enactments, 7 & 8 Geo. 4, 
 c. 30, P. 4, and 7 Will. 4 & 1 Vict, 
 c. 90, s. 5.) 
 
 A person plugging up the feed- 
 pipe of a steam-engine, and dis- 
 placing other parts of the engine in 
 such a way as rendered it tempora- 
 rily useless, and would have caused 
 an explosion if the obstruction had 
 not been diseovered, and with some 
 labour removed, is guily of damag- 
 ing the engine, with intent to ren- 
 der it useless within 24 & 25 Vict, 
 c. 97, s. 15. Reg. v. Fisher, 10 
 Cox, C. C. 146; 1 L. R., C. C. 7; 
 1 1 Jur., N. S. 983 ; 35 L. J., M. C. 
 57 ; 14 W. R. 58 ; 13 L. T., N. S. 
 380. 
 
 An indictment under 24 & 25 
 Vict. c. 97, s. 15, for damaging a 
 machine, with intent to destroy the 
 same, chai'ging the offence to have 
 been committed " unlawfully and 
 maliciously," in the language of the 
 statute, but omitting the word felon- 
 iously, is bad, as the woi-d feloni- 
 ously is a term of art and necessary 
 in all indictments for felony, whether 
 at common law or created by stat- 
 ute. Reg. V. Gray, 9 Cox, C. C. 
 417; L. & G. 365; 10 Jur., N. S. 
 1 60 ; 33 L. J., M. C. 78 ; 12 W. R. 
 350 ; 9 L. T., N. S; 733. 
 
 Ploughs of the description com- 
 monly used in agriculture are ma- 
 chines within the statute. lb. 
 
 If a person has had a threshing- 
 machine taken to pieces, he expect- 
 ing a mob to come and destroy it, 
 and the mob comes and destroys the 
 different jjarts of the machine when 
 thus separated, this was a felony 
 within 7 & 8 Geo. 4, c. 30, s. 4. 
 Rex V. Mackerel, 4(C. & P. 448— 
 Park, BoUand and Patteson. 
 
 A. liad a threshing-machine work- 
 ed by water, the water-wheel hav- 
 ing been put up for the sole purpose 
 of working this machine, and never 
 having been used for anything else ; 
 A., fearing the destruction of the 
 machine by a mob, took it down, 
 leaving the water-wheel standing. 
 The prisoners broke the water- 
 
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MINES. 
 
 313 
 
 wheel :— Held, to be a felony, under 
 7 & 8 Geo. 4, c. 30, s. 4 ; and the 
 fact that A. sometimes worked the 
 threshing-machine by horses made 
 no difference. Rex v. Fidler, 4 C. 
 & P. 449— Park, Bolland and Pat- 
 teson. 
 
 On an indictment for breaking a 
 threshing-machine, the judge al- 
 lowed a witness to be asked whether 
 the mob by whom the machine was 
 broken did not compel persons to go 
 with them, and then compel each 
 person to give one blow to the ma- 
 chine ; and also whether, at the 
 time when the prisoner and himself 
 were forced to join the mob, they 
 did not agree together to run away 
 from the mob the first opportunity. 
 Rex V. CrutcMey, 5 C. & P. 133 -^ 
 Patteson. 
 
 Where the prisoner was indicted 
 for destroying a threshing-machine, 
 and it appeared that it had been 
 previously taken to pieces by the 
 owner, by separating the ai-ms and 
 "other parts of it, for the purpose of 
 placing it in safety, but with a view 
 to put it together again, and it was 
 destroyed whilst in this disjointed 
 state; it was decided that the of- 
 fence was within 7 & 8 Geo. 4, c. 
 30, s. 4. Rex v. Hutchins, Deac. 
 C. L. 1517— Park, Bolland and Pat- 
 teson. 
 
 Where certain side boards were 
 wanting to the machine at the time 
 it was destroyed, but which did not 
 render it so defective as to prevent 
 it altogether from working, though 
 it would not work so effectually as 
 if those boards had been made good : 
 — Held, that it was still a threshing- 
 machine within the meaning of the 
 statute. Hex v. Bartlett, Deac. C. 
 L. 1517 — Yaughan, Parke and Al- 
 derson. 
 
 Where the owner removed a 
 wooden stage belonging to the 
 machine on which the man who fed 
 the machine was accustomed to 
 stand, and had also taken away the 
 legs, and it appeared in evidence 
 that though the machine could not 
 
 be conveniently worked without 
 some stage for the man to stand on, 
 yet that a chair or table, or a num- 
 ber of sheaves of corn, would do 
 nearly as well, and that it could 
 also be worked without the legs ; it 
 was held, that the machine was an 
 entire one within the act, notwith- 
 standing the stage and legs were 
 wanting. Rex v. Chubb, Deac. C. 
 L. 1518— Vaughan and Parke. 
 
 But where the prosecutor had not 
 only taken the machine to pieces, 
 but had broken the wheel of it, be- 
 fore the mob came to destroy it, for 
 fear of having it set on fire and en- 
 dangering his premises, and it was 
 proved that without the wheel the 
 engine could not be worked ; in 
 this case it was held, that the re- 
 maining parts of the machine, which 
 were destroyed by the mob, did not 
 constitute a threshing-machine with- 
 in the meaning of the statute. Rex 
 V. West, Deac. C. L. 1518— Alder- 
 
 . Setting Fire to.]— By 24 & 25 
 Vict. e. 97, s. 26, "whosoever shall 
 " unlawfully and maliciously set fire 
 "to any mine of* coal, cannel coal, 
 " anthracite, or other mineral fuel, 
 " shall be guilty of felony, and be- 
 " ing convicted thereof shall be 
 " liable, at the discretion of the 
 " court, to bp kept in penal servi- 
 " tude for life, or for any term not 
 " less than five years (27 & 28 Vict. 
 " c. 47), or to be imprisoned for any 
 ''' term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment, and, if a male under the 
 " age of sixteen years, with or with- 
 " out whipping." (Former provis- 
 ion, 7 Will. 4 & 1 Vict. c. 89, s. 9.) 
 
 By s. 27, " whosoever shall un- 
 " lawfully and maliciously, by any 
 " overt act, attempt to set fire to 
 " any mine, under such circum- 
 " stances that if the mine were 
 " thereby set fire to, the offender 
 "would be guilty of felony, shall 
 
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314 
 
 MALICIOUS INJURY. 
 
 " be guilty of felony." {Former 
 provision, 9 & 10 Vict. c. 25, s. 7.) 
 
 Attempting Drowning. \ — By s. 
 28, " whosoever shall unlawfully and 
 " maliciously cause any water to be 
 " conveyed or run into any mine, or 
 " into any subterraneous passage 
 " communicating therewith, with in- 
 " tent thereby to destroy or damage 
 " such mine, or to hinder or delay 
 " the working thereof, or shall with 
 " the like intent unlawfully and 
 " maliciously pull down, fill up, or 
 " obstruct, or damage with intent 
 " to destroy, obstruct, or render 
 " useless, any air-way, water-way, 
 " drain, pit, level, or shaft of or be- 
 " longing to any mine, shall be 
 " guilty of felony : provided that 
 " this provision shall not extend to 
 " any damage committed under- 
 " ground by any owner of any ad- 
 "joiningminein working the same, 
 " or by any person duly employed 
 " in such working." {Former pro- 
 visioti, 7 & 8 Geo. 4, c. 30, s. 6.) 
 
 If A. and B. were the owners of 
 adjoining mines, and A., asserting 
 that a certain airway belonged to 
 him, directed his workmen to stop 
 it up, and they, acting bon^ fide, 
 and' believing that A. had a right 
 to give such an order, do so, they 
 were not guilty of felony within the 
 7 & 8 Geo. 4, c. 30, s. 6, for stop- 
 ping up the air-way of a mine, even 
 though A. knew that he had no 
 right to the air-way ; but if either 
 of the workmen knew that the stop- 
 ping up of the air- way was a mali- 
 cious act of his master, such work- 
 men would be guilty of the felony, 
 lieg. V. James, 8 C. & P. 131— 
 Abinger. 
 
 In an indictment under 7 & 8 
 Geo. 4, c. 30, s. 6, the mine might 
 be laid as the property of the per- 
 son in possession and working it, 
 though only an agent for others. 
 Heg. V. Jones, 2 M. C. C. 293 : 1 
 C. & K. 181. 
 
 Damaging Engines for working.^ 
 — By s. 29, " whosoever shall un- 
 
 lawfully and maliciously pull down 
 or destroy, or damage with intent 
 to destroy or render useless, any 
 steam-engine or other engine for 
 sinking, draining, ventilating, or 
 working, or for in anywise assist- 
 ing in sinking, draining, ventilat- 
 ing, or working any mine, or any 
 appliance or apparatus in connex- 
 ion with any such steam or other 
 engine, or any staitli, building, or 
 erection used in conducting the 
 business of any mine, or any 
 bridge, waggon-way, or trunk for 
 conveying minerals from any mine, 
 whether such engine, staith, build- 
 ing, erection, bridge, waggon- way, 
 or trunk be completed or in an un- 
 finished state, or shall unlawfully 
 and maliciously stop, obstruct, or 
 hinder the working of any such 
 steam or other engine, or of any 
 such appliance or apparatus as 
 aforesaid, with intent thereby to 
 destroy or damage any mine, or 
 to hinder, obstruct, or delay the 
 woi-king thereof, or shall unlaw- 
 fully and maliciously wholly or 
 partially cut through, sever, break, 
 or unfasten, or damage with in- 
 tent to destroy or render useless, 
 any rope, chain, or tackle, of what- 
 soever material the same shall be 
 made, used in any mine, or in or 
 upon any inclined plane, railway, 
 or other way, or other work what- 
 soever, in anywise belonging or 
 appertaining to, or connected with, 
 or employed in any mine, or the 
 working or business thereof, shall 
 be guilty of felony." {Former 
 enactments, 7 & 8 Geo. 4, c. 30, s. 
 7, and 23 & 24 Vict. c. 29, s. 1.) 
 
 The bottom of the shaft of a mine 
 had water in it, and the owner of 
 the mine had caused a scafibld to be 
 erected at some distance above the 
 bottom of the mine, for the purpose 
 of working a vein of coal which was 
 on a level with the scaffold : — Held, 
 that this scaffold was an " erection 
 used in the conducting the business 
 of a mine," within 7 & 8 Geo. 4, c. 
 30, s. 7, and that the damaging it, 
 
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SEA AND RIVER BANKS. 
 
 315 
 
 with intent to destroy it, or to ren- 
 der it useless, was felony. Beff. v. 
 Whittingham, 9 C. & P. 234— 
 Patteson. 
 
 A coal-mine was worked by a 
 steam-engine, which caused a cylin- 
 der, called a drum, to revolve and 
 take up the rope as the coal was 
 drawn up from the mine : — Held, 
 that proof of damaging the drum 
 would not support an indictment 
 which charged the damaging a 
 steam-engine used in working a 
 mine. lb. 
 
 A steam-engine used in draining 
 and working a mine had been stop- 
 ped and looked up for the night. 
 The prisoner got into the engine 
 house, and set it going, and there 
 being no machinery attached, the 
 engine went with great velocity, 
 and received damage: — Held, that 
 this was a damaging of the engine, 
 within 7 & 8 Geo. 4, c. 30, s. 7. 
 Reg. V. Norris, 9 C. & P. 241— 
 Gurney. 
 
 5. Sea and River Ranks. 
 
 By 24 & 25 Vict. c. 97, s. 30, 
 " whosoever shall unlawfully and 
 " maliciously break down, or cut 
 " down, or otherwise damage or 
 " destroy any sea bank or sea wall, 
 " or the bank, dam, or wall of or be- 
 " longing to any river, canal, drain, 
 " reservoir, pool, or marsh, where- 
 " by any land or building shall be, 
 " or shall be in danger of being, 
 " overflowed or damaged, or shall 
 " unlawfully and maliciously throw, 
 " break, or cut down, level, under- 
 " mine, or otherwise destroy any 
 " quay, wharf, jetty, lock, sluice, 
 "floodgate, weir, tunnel, towing- 
 " path, drain, watercourse, or other 
 " woi-k belonging to any port, har- 
 " hour, dock, or reservoir, or on or 
 " belonging to any navigable river 
 " or canal, shall be guilty of felony." 
 {Former provision, 7 & 8 Geo. 4, 
 c. 30, s. 12.) 
 
 By s. 31, "whosoever shall im- 
 " lawfully and maliciously cut off, 
 "draw up, or remove any piles, 
 
 " chalk, or other materials fixed in 
 " the ground, and used for securing 
 " any sea bank, or sea wall, or the 
 " bank, dam, or wall of any river, 
 " canal, drain, aqueduct, marsh, re- 
 " servoir, pool, port, harbour, dock, 
 " quay, wharf, jetty, or look, or 
 " shall unlawfully and maliciously 
 " open or draw up any floodgate or 
 " sluice, or do any other injury or 
 " miscliief to any navigable river or 
 "canal, with intent and so as there«i 
 " by to obstruct or prevent the 
 " carrying on, completing, or main- 
 " taining the navigation thereof, 
 " shall be guilty of felony." {For- 
 mer provision, 7 & 8 Geo. 4, c. 30, 
 s. 12.) 
 
 By a haven improvement act, 
 any person who shall place on any 
 space of ground immediately adjoin- 
 ing to the haven, and within the 
 space of ten feet from high -water 
 mark, any goods, materials, or ar- 
 ticles whatsoever, so as to obstruct 
 the free and commodious passage 
 through and over the same, shall 
 forfeit and pay any sum not exceed- 
 ing 5Z. B. placed three boats on 
 the space of ground immediately 
 adjoining the haven, and within the 
 space of 10. feet from high-water 
 mark, so as to obstruct the free and 
 commodious pasfage to and over 
 the same. There was no public 
 right of passage over the s]-ace of 
 ground, and it was occupied by B. : 
 — Held, by Cockburn, 0. J., Cromp- 
 ton, J., and Blackburn, J., that B. 
 could not be convicted, as the pro- 
 vision could only apply to cases 
 where a public right of passage ex- 
 isted ; but by Wightman, J., that 
 by the express teiTus of the act, and 
 the apparent intention, the provis- 
 ion extended to such a case, and 
 that B. was liable to be convicted. 
 Harrod v. Worship, 30 L. J., M. 
 C.1C5— Q. B. 
 
 6. Ships and Sea Signals. 
 Setting fire to, casting away, or 
 destroying Ships.] — By 24 & 25 
 Vict. c. 97, s. 42, " whosoever shall 
 
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316 
 
 MALICIOUS INJURY. 
 
 " unlawfully and maliciously set fire 
 " to, cast away, or in anywise de- 
 " stroy any ship or vessel, whether 
 " the fame be complete or in an un- 
 " finished state, shall be guilty of 
 " felony." {Former provision, 7 
 Will. 4 & 1 Vict. c. 89, s. 6.) 
 
 By R. 43, " whosoever shall un- 
 " lawfully and maliciously set fire 
 " to, or cast away, or in anywise 
 " destroy any ship or vessel, with 
 " intent thereby to prejudice any 
 " owner or part owner of such ship 
 " or vessel, orof any goods on board 
 " the same, or any person that has 
 " underwritten or shall underwrite 
 " any policy of insurance upon such 
 " ship or vessel, or on the freight 
 " thereof, or upon any goods on 
 " board the same, shall be guilty of 
 " felony." {Former provision, 7 
 Will. 4 & 1 Vict. c. 89, s. 6.) 
 By s. 44, " whosoever shall un- 
 lawfully and maliciously, by any 
 ' overt act, attempt to set fire to, 
 ' cast away, or destroy any ship or 
 ' vessel, under such circumstances 
 ' that, if the ship or vessel, were 
 ' thereby set fire to, cast away, or 
 ' destroyed, the offender would be 
 ' guilty of felony, shall be guilty of 
 ' felony." , 
 
 By s. 45, " whosoever shall un- 
 ' lawfully and maliciously place or 
 ' throw in, into, upon, against, or 
 ' near any ship or vessel any gun- 
 ' powder or other explosive sub- 
 ' stance, with intent to destroyer 
 ' damage any ship or vessel, or any 
 ' machinery, working tools, goods, 
 ' or chattels, shall, whether or not 
 ' any explosion take place, and 
 ' whether or not any injury be ef- 
 ' fected, be guilty of felony." 
 
 By 12 Geo. 3, c. 24, " it is a cap- 
 ' ital ofiTence to burn the queen's 
 ' ships of war." 
 
 It was an offence within 11 & 1 2 
 Will. 3, c. 7, s. 9, to make a revolt' 
 in a ship, or to endeavour to make 
 one, though the object is not to run 
 away with the ship, or to commit 
 any act of piracy, but to force the 
 captain to redress supposed griev- 
 
 ances. Hex V. Hastings, 1 M. 0. C. 
 82. 
 
 If the crew, or part of the crew, 
 of a ship combines together to resist 
 the captain, especially if the ob- 
 ject is to deprive him of his com- 
 mand, it will amount to making a 
 revolt, within 11 & 12 Will. 3, c. 7, 
 s. 9 ; and it will be no answer to 
 shew that there were grievances, 
 which, by their resistance,, the men 
 sought to redress. Meg. v. M'Gre- 
 gor, 1 C. & K. 429— Abinger. 
 
 The destruction of a vessel by a 
 part-owner shews an intent to pre- 
 judice the other part-owner, though 
 he has insured the whole ship, and 
 promised that the other part-owner 
 should have the benefit thereof. 
 Rex V. Philip, 1 M. C. C. 264. 
 
 On an indictment against a for- 
 eigner, who was ship's carpenter on 
 board a foreign merchant ship, for 
 conspiring in this country, with the 
 foreign owner and master, to de- 
 stroy or cast away the vessel, with 
 intent to prejudice the owners of 
 goods on board, or the insurers of 
 the ship or cargo, it being admitted 
 that the prisoner was party to the 
 scuttling of the ship on the high 
 seas, the jury was directed to con- 
 sider whether the prisoner was a 
 party in this country to a previous 
 plan or conspiracy to destroy the 
 ship, not limited to its destination 
 on the high seas, the principal of- 
 fence not being triable in this coun- 
 try. Reg. V. Kohn, 4 F. & F. 68 
 — Willes. 
 
 If a ship was stranded, and after- 
 wards got off" in such a state' as to 
 be easily refitted, she could not be 
 said to have been cast away or de- 
 stroyed, under 4 Geo. l,c. 12, and 
 11 Geo. 1, c. 29. Rex v. Delondo, 
 2 East, P.O. 1098. 
 
 A person might be tried mider 7 
 Will. 4 & 1 Vict. c. 89, ss. 6, 11, as 
 an accessory before the fact to the 
 offence of setting fire to a vessel of 
 which he was a part-owner. Reg. 
 V. Wallace, Car. & M. 200— Tindal, 
 Bosanquet and Williams. 
 
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FISH POIS[DS. 
 
 317 
 
 An indictment' was properly fram- 
 ed, which stated that the principal 
 felon cast away and destroyed a 
 vessel, and that the accessory incit-' 
 ed, movedj aided, counselled, hired 
 and commanded him to do it ; and 
 the accessory might be convicted on 
 an indictment so framed, although 
 the principal had not been tried, 
 and did not appear to be amenable 
 to justice. lb. 
 
 The underwriters on a policy on 
 goods fraudulently made were with- 
 in 7 Will. 4 & 1 Vict. c. 89, s. 6, 
 though no goods were put on board. 
 Hec/. V. WaUaoe, 2 M. C. C. 200. 
 
 Exhibiting False Signals, <&o.] 
 — By s. 47, "whosoever shall un- 
 " lawfully mask, alter, or remove 
 " any light or signal, or unlawfully 
 ", exhibit any false light or signal, 
 " with intent to bring any ship, 
 " vessel, or boat into danger, or 
 " shall unlawfully and maliciously 
 " do anything tending to the im- 
 " mediate loss or destruction of any 
 " ship, vessel, or boat, and for 
 " which no punishment is herein- 
 " before provided, shall be guilty 
 " of felony." {Former provision, 
 7 Will. 4 & 1 Vict. c. 89, s. 5.) 
 
 Removing or concealing Huoya 
 and other Sea Marks.'] — By s. 48, 
 " whosoever shall unlawfully and 
 " maliciously cut away, cast adrift, 
 " remove, alter, deface, sink, or 
 " destroy, or shall unlawfully and 
 " maliciously do any act with in- 
 " tent to cut away, cast adrift, 
 " remove, alter, deface, sink, or 
 " destroy, or shall in any manner 
 " unlawfully and maliciously injure 
 " or conceal any boat, buoy, buoy 
 " rope, perch, or mark used or in- 
 " tended for the guidance of sea- 
 " men or the purpose of naviga- 
 " tion, shall be guilty of felony." 
 
 Destroying Wrechs, or Articles 
 of Ships in Distress.]— Bj s. 49, 
 "whosoever shall unlawfully and 
 "maliciously destroy any part of 
 
 " any ship or vessel which shall be 
 " in distress, or wrecked, stranded, 
 " or cast on shore, or any goods, 
 " merchandise, or articles of any 
 " kind belonging to such ship or 
 " vessel, shall be guilty of felony." 
 {Former provision, 7 Will. 4 & 1 
 Vict. c. 89, s. 8.) 
 
 Damaging otherwise than by 
 Fire.] — By s. 46, " whosoever 
 " shall unlawfully and maliciously 
 " damage, otherwise than by fire, 
 " gunpowder, or other explosive 
 " substance, any ship or vessel, 
 •' whether complete or in an un- 
 " finished state, with intent to de- 
 " stroy the same, or render the 
 " same useless, shall be guilty of 
 " felony." {Former provision, 7 
 & 8 Geo. 4, c. 30, s. 10.) 
 
 An indictment on the latter stat- 
 ute for damaging a vessel need not 
 have stated that the damage was 
 done " otherwise than by iire," if 
 it stated how it was done. Hex v. 
 Boioyer, 4 C. & P. 659 — Patteson. 
 
 7. Fish Ponds. 
 By 24 & 25 Vict. c. 97, s. 32, 
 " whosoever shall unlawfully and 
 " maliciously cut through, break 
 " down, or otherwise destroy the 
 " dam, floodgate, or sluice of any 
 " fish pond, or of any 'water which 
 " shall be private property, or in 
 " which there shall be any private 
 " right of fishery, with intent there- 
 " by to take or destroy any of the 
 " fish in such pond or water, or so 
 " as thereby to cause the loss or 
 " destruction of any of the fish, or 
 " shall unlawfully and maliciously 
 " put any lime or other noxious 
 " material in any such pond or 
 " water, with intent thereby to 
 " destroy any of the fish that may 
 " then be or that may thereafter be 
 " put therein, or shall unlawfully 
 " and maliciously cut through, 
 " break down, or otherwise destroy 
 " the dam or floodgate of any mill 
 " pond, reservoir or pool, shall be 
 " guilty of a misdemeanor." {For- 
 
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318 
 
 MALICIOUS INJURY. 
 
 mer provision, 7 & 8 Geo. 4, c. 30, 
 s. 15.) 
 The 7 & 8 Geo. 4, c. 27, repealed 
 
 5 Eliz. c. 29, and 4 Geo. 4, c. .'54; 
 and 24 & 25 Vict. c. 95, repeals 7 
 
 6 8 Geo. 4, c. 30, s. 15. 
 
 The breaking down the head or 
 mound of a ttsh-pond was not a 
 felony within 9 Geo. 1, c. 22, if it 
 appeared to have been the object 
 of the offendei-s to steal the tish, 
 and not to let them escape through 
 the breach in the mound. Hex v. 
 Hoss, R. & R. C. C. 10 ; 2 East, 
 P. C. 10G7. 
 
 8. Trees, /Shrubs, Fences and Yeg- 
 etahles. 
 
 Statutes.]— 7 & 8 Geo. 4, c. 27, 
 repealed 37 Hen. 8, c. 6 ; 43 Eliz. 
 c. 7 ; 16 Car. 2, c. 2 ; 22 & 23 
 Car. 2, c. 7; 1 Geo. 1, c. 48 ; 6 
 Geo. 1, c. 16; 4 Geo. 3, c. 31 ; 6 
 Geo. 3, c. 48 ; -9 Geo. 3, c. 41, and 
 46 Geo. 3, c. G7 ; and 24 & 25 
 Vict. c. 95, repeals 7 & 8 Geo. 4, 
 0. 30, and 7 Will. 4 & 1 Vict. c. 
 90, s. 5, and 7 Geo. 4, c. 27, re- 
 pealed 9 Geo. 1, c. 22. 
 
 By 18 & 19 Vict. c. 126, s. 22, 
 " the party aggrieved is a compe- 
 " tent witness notwithstanding his 
 " receipt of the money ordered to 
 " be paid for compensation." 
 
 Trees and Shrubs.] — By 24 & 
 25 Vict. c. 97, s. 20, " whosoever 
 " shall unlawfully and maliciously 
 " cut, break, bark, root up or other- 
 " wise destroy or damage the whole 
 " or any part of any tree, sapling 
 " or shrub, or any underwood, 
 " growing in any park, pleasure- 
 " ground, garden, orchard or ave- 
 " nue, or in any ground adjoining 
 " or belonging to any dwelling- 
 " house (in case the amount of in- 
 " jury done shall exceed the sum 
 " of 11.) shall be guilty of felony." 
 {Former provision, 7 & 8 Geo. 4, 
 c. 30, s. 19.) 
 
 By s. 21, "whosoever shall un- 
 " lawfully and maliciously cut, 
 " break, bark, root up, or other- 
 
 " wise destroy or damage the 
 " whole or any part of any tree, 
 " sapling or shrub, or any under- 
 " wood, growing elsewhere than in 
 " any pai-k, pleasure-ground, gar- 
 " den, orchard or avenue, or in any 
 " ground, adjoining to or belong- 
 " ing to any dwelling-house (in 
 " case the amount of injury done 
 " shall exceed the sum of 51.), 
 " shall be guilty of felony." (Pre- 
 vious ena^ment, 7 & 8 Geo. 4, c. 
 30, s. 19.) 
 
 Cutting down a tree was suffi- 
 cient to bring a case within 9 Gpo. 
 1, c. 22, although the tree was not 
 thereby totally destroyed. Hex v. 
 Taylor, R. & R. C. C. 373. 
 
 Where shrubs are cut upon an 
 unproved allegation that they were 
 likely to be injurious to an adjoin- 
 ing wall, it is a malicious trespass, 
 though the title to the spot on 
 which the shrubs grew is in dispute 
 between the parties. Hex v. Wjhate- 
 %, 4M. &R. 431. 
 
 Apple and pear trees grafted in 
 a wild stock, and producing fruit, 
 were trees within 9 Geo. 1, c. 22. 
 Hex V. Tai/lor, R. & R. C. C. 373. 
 
 A party might be convicted un- 
 der the 7 & 8 Geo. 4, c. 30, s. 24, 
 of having wilfully and maliciously 
 dam'aged growing wood, to the 
 value of sixpence, though section 
 20 expressly imposed a penalty for 
 unlawfully and maliciously damag- 
 ing such wood, " the injury done 
 being to the amount of one shilling 
 at least." Heg. v. Dodson, 9 A. & 
 E. 704. 
 
 Jndictment.] — In an indictment 
 on 6 Geo. 3, c. 36, for destroying 
 trees, the name of the owner of the 
 trees must have been truly stated, 
 otherwise it was fatal. Hex v. Pat- 
 rick, 2 East, P. C. 1059. And see 
 Hex V. Howe, 1 Leach, C. C. 481 ; 
 2 East, P. C. 588. 
 
 The prisoner was indicted for 
 damaging apple trees growing in a 
 garden, and the indictment alleged 
 that the damage was done feloni- 
 
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TREES, SHRUBS, ETC. 
 
 319 
 
 Qusly and not unlawfully or ma- 
 liciously :— Held, bad. Rexw. Lewis, 
 2 Russ. C. & M. 10G6— Bosanquet. 
 Evidence of damage committed 
 at several times in the aggregate, 
 but not at any one .time exceeding 
 0^., will not sustain an indictment. 
 Reg. V. Williams, 9 Cox, C. C. 
 338. 
 
 Amount of Damage.]— Hy s. 22, 
 " vt^hosoever shall unlawfully and 
 " maliciously cut, break, bark, root 
 " lip, or otherwise destroy or dam- 
 " age the whole or any part of any 
 " tree, sapling or shrub, or any un- 
 " derwood, wheresoever the su,me 
 " may be growing, the injury done 
 " being to the amount of Is. at the 
 " least, shall, on conviction thereof 
 "before a justice of the peace, at 
 " the discretion of the justice, either 
 " be committed to the common 
 " gaol or house of correction, there 
 " to be imprisoned only, or to be 
 " imprisoned and kept to hard la- 
 " bour for any term not exceeding 
 " three months, or else shall forfeit 
 " and pay, over and above the 
 " amount of injury done, such sum 
 " of money, not exceeding 51., as 
 " to the justice shall seem meet ; 
 " and whosoever, having been con- 
 " victed of any such oftence, either 
 " against this or any former act of 
 " parliament, shall afterwards com- 
 " mit any of the said offences in 
 " this section before mentioned, and 
 " shall be convicted thereof in like 
 " manner, shall for such second of- 
 " fence be committed to the com- 
 " mon gaol or house of correction, 
 " there to be kept to hard labour 
 " for such term, not exceeding 
 " twelve months, as the convicting 
 "justice shall think fit; and who- 
 " soever, having been twice con- 
 " victed of any such offence (wheth- 
 " er both or either of such convic- 
 " tions shall have taken place be- 
 " fore or after the passing of this 
 " act), shall afterwards commit any 
 " of the said offences in this section 
 " before mentioned, shall be guilty 
 
 " of a misdemeanor." {Previous 
 enactment, 7 & 8 Geo. 4, c. 30, 
 s. 20.) 
 
 A person was indicted under 7 
 & 8 Geo. 4, c. 30, s. 19, for having 
 feloniously, unlawfully and mali- 
 ciously done damage to trees in a 
 hedge, thereby doing injury to the 
 owner to an amount exceeding 51. 
 The evidence shewed that the act- 
 ual injury done to the trees was 
 to the amount of 11. only, but that 
 it would be necessary to stub up 
 the old hedge and replace it, the 
 expense of which would be 4.1. 14s. 
 The jury found him guilty : — Held, 
 that the conviction was wrong, in- 
 asmuch as the injury exceeding 51. 
 must be actual injury to the trees, 
 and that proof of consequential in- 
 jury was insuificient. Heg. v. White- 
 man, Dears. C. C. 353 ; 18 Jur. 
 434 ; 23 L. J., M. C. 120 ; 6 Cox, 
 C. C. 370. 
 
 Vegetables in Gardens.] — By s. 
 23, " whosoever shall uhlawfuUy 
 " and maliciously destroy or dam- 
 " age with intent to destroy, any 
 " plant, root, fruit, or vegetable 
 " production, growing in any gar- 
 " den, orchard, nursery ground, 
 " hothouse, greenhouse or conserva- 
 " tory, shall, on conviction thereof 
 " before a justice of the peace, at 
 " the discretion of the justice, either 
 " be committed to the common gaol 
 " or house of correction, there to 
 " be imprisoned only or to be im- 
 " prisoned and kept to hard labour 
 " for any term not exceeding six 
 " months, or else shall forfeit and 
 " pay over and above the amount 
 " of injury done, such sum of mon- 
 " ey, not exceeding 20^., as to the 
 " justice shall seem meet ; and who- 
 " soever, having been convicted of 
 " any such offence, either against 
 " this or any former act of parlia- 
 " ment, shall afterwards commit 
 " any of the said offences in this 
 " section before mentioned, shall be 
 " guilty of felony." {Previous en- 
 actment, 7 & 8 Geo. 4, c. 30, s. 21.) 
 
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320 
 
 MALICIOUS INJURY. 
 
 Elsewhere.'] — By s. 24, " whoso- 
 " ever shall unlawfully and ma- 
 " liciously destroy, or damage with 
 " intent to destroy, any cultivated 
 " root or plant used for the food of 
 " man or beast, or for medicine, or 
 " for distilling, or for dyeing, or 
 " for or in the course of any manu- 
 " facture, and growing in any land, 
 " open or inclosed, not being a gar- 
 " den, orchard or nursery ground, 
 " shall, on conviction thereof be- 
 " fore a justice of the peace, at the 
 " discretion of the justice, either be 
 " committed to the common gaol 
 " or house of correction, there to 
 " be imprisoned only, or to be im- 
 " prisoned and kept to hard labour 
 " for any term not exceeding one 
 " month, or else shall forfeit and 
 " pay, over and above the amount 
 !' of the injury done, such sum of 
 " money, not exceeding 20s., as to 
 " the justice shall seem meet, and 
 " in default of payment thereof, to- 
 " gether with the costs, if ordered, 
 " shall be committed as aforesaid 
 " for any term not exceeding one 
 " month, unless payment be sooner 
 " made." {Previous enactment, 7 
 " & 8 Geo. 4, c. 30, s. 22.) 
 
 Hy s. 58, " malice against the 
 " owners of the property injured is 
 " unnecessary." 
 
 Fences.]— Bj 24 & 25 Vict. c. 
 97, s. 25, " whosoever shall unlaw- 
 ' fully and maliciously cut, break, 
 ' throw down or in anywise destroy 
 ' any fence of any description what- 
 ' soever, or any wall, stile or gate, 
 ' or any part thereof respectively, 
 ' shall, on conviction thereof be- 
 ' fore a justice of the peace, for 
 ' the first otFence, forfeit and pay, 
 ' over and above the amount of 
 ' the injury done, such sum of mon- 
 ' ey, not exceeding 5^., as to the 
 ' justice shall seem meet." {For- 
 ' mer provision, 7 & 8 Geo. 4, c. 
 ' 30, s. 23.) 
 
 9. Hop-binds. 
 By 24 & 25 Vict. c. 97, s. 19, 
 
 " whosoever shall unlawfully and 
 " maliciously cut or otherwise de- 
 " stroy any hop-binds growing on 
 " poles in any plantation of hops 
 " shall be guilty of felony." {For- 
 mer provision, 7 & 8 Geo. 4, c. 30, 
 s. 18.) 
 
 In order to support an indict- 
 ment under 7 & 8 Geo. 4, c. 30, s. 
 18, for destroying hop-binds, it 
 must be shewn that the plant died 
 in consequence of the injury re- 
 ceived. Proof of the infliction of 
 injury by cutting, bruising, &c., is 
 insufficient. Reg. v. JBoucher, 5 
 Jur. 709— Taddy, Serjt. 
 
 10. Works of Art. 
 
 By 24 & 25 Vict. c. 97, s. 39, 
 " whosoever shall unlawfully and 
 " maliciously destroy or damage 
 " any book, manuscript, picture, 
 " print, statue, bust or vase, or any 
 " other article or thing kept for the 
 " purposes of art, science or litera- 
 " ture, or as an object of curiosity, 
 " in any museum, gallery, cabinet, 
 " library or other repository, which 
 " museum, gallery, cabinet, library 
 " or other repository is either at all 
 " times or from time to time opeh 
 " for the admission of the public, 
 " or of any considerable number of 
 " persons, to view the same, either 
 " by the permission of the proprie- 
 " tor thereof or by the payment of 
 " money before entering the same, 
 " or any picture, statue, monument 
 " or other memorial of the dead, 
 " painted glass or other ornament 
 " or work of art, in any church, 
 " chapel, meeting - hou.se or other 
 " place of divine worship, or in 
 " any building belonging to the 
 " Queen, or to any county, riding, 
 " division, city, borough, poor-law 
 " union, parish or place, or to any 
 " university, or college or hall of 
 " any universit}', or to any inn of 
 " court, or in any street, square, 
 " chjirch-yard, burial-ground, pub- 
 " lie garden or ground, or any 
 " statue or monument exposed to 
 " public view, or *any ornament, 
 
 Digitized by Microsoft® 
 
AMOUNT OF INJURY. 
 
 321 
 
 " railing or fence, surrounding such 
 " statue or monument, shall be 
 
 " guilty of a misdemeanor." 
 vious enactment, 8 & 9 Vict. 
 4, and 17 & 18 Vict. 
 
 ss. 1, 
 s. 6.) 
 
 [Pre- 
 c. 44, 
 c. 33, 
 
 11, 
 By 24 & 
 
 Indictment. 
 
 25 Vict. c. 97, s. 58, 
 "every punishment and forfeiture 
 " imposed by the act on any person 
 " maliciously committing any of- 
 " fence, whether the same be.pun- 
 " ishable upon indictment or upon 
 " summary conviction, shall equally 
 " apply and be enforced, wheth- 
 " er the oifence shall be committed 
 " from malice conceived against the 
 " owner of the property in respect 
 " of which it shall be committed, or 
 " otherwise." 
 
 By s. 59, " eveiy provision of this 
 " act not hereinbefore so applied 
 " shall apply to every person who, 
 " with intent to injure or defraud 
 " any other person, shall do any of 
 " the acts hereinbefore made penal, 
 " although the offender shall be in 
 " possession of the property against 
 "or in respect of wMch such act 
 " shall be done." 
 
 By s. 60, " it shall be suiHcient, 
 " in any indictment for any offence 
 " against this act, where it shall be 
 " necessary to allege an intent to in- 
 " jure or defraud, to allege that the 
 " party accused did the act with in- 
 " ^nt to injure or defraud, as the 
 " case may be, without alleging, an 
 " intent to injure or defraud any 
 " particular person ; and on the trial 
 " of any such offence it shall not be 
 " necessary to prove an intent to in- 
 " jure or defraud any particular per- 
 " son, but it shall be sufficient to 
 " prove that the party accused did 
 " the act charged with an intent to 
 " injure or defraud, as the case may 
 " be." 
 
 12. Amount of Injury. 
 • By 24 & 25 Vict. c. 97, s. 51, 
 " whosoever sjjall unlawfully and 
 " maliciously commit any damage, 
 
 " injury or spoil to or upon any 
 " real or personal property whatso- 
 " ever, either of a public or private 
 " nature, for which no punishment 
 " is provided, the damage, injury or 
 " spoil being to an amount exceed- 
 " ing bl., shall be guilty of a misde- 
 " meaner, and, being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be impris- 
 " oned for any term not exceeding 
 "two years, with or without hard 
 " labour ; and in case any such of- 
 " fence shall be committed between 
 " the hours of nine of the clock in 
 " the evening and six of the clock in 
 " the morning, shall be liable, at the 
 " discretion of the court, to be kept 
 " in penal servitude for any term 
 " not exceeding five years and not 
 " less than three ; or to be imprison- 
 " ed for any term not exceeding two 
 " years, with or without hard la- 
 " bour." 
 
 Under this provision, evidence of 
 damage committed at several times, 
 in the aggregate, but not at any one 
 time exceeding 5Z., will not sustain 
 an indictment. Reg. v. WiUiams, 
 9 Cox, C. 0. 338. 
 
 Upon an indictment for damag- 
 ing trees and shrubs in a hedge to 
 an amount exceeding 51, a valuer 
 proved that he estimated the in- 
 jury to the trees at 11., but that it 
 would be necessary to stub up 
 the old hedge, and that it would 
 cost 51. 14s. GtZ. to replace it : — Held, 
 that upon this evidence the indict- 
 ment could. not be sustained. JReg. 
 V. Whiteman, 6 Cox, C. C. 370; 
 23 L. J., M. C. 120 ; Dears. C. C. 
 353 ; 23 L. J., M. C. 120. 
 
 Damage done to a field by a 
 poacher's dog in pursuit of game, 
 was not a malicious injury within 7 
 & 8 Geo. 4, c. 30, b. 23. Beg. v. 
 Prestney, 3 Cox, C. C. 505— Parke. 
 
 13. Witnesses. 
 
 By 18 & 19 Vict. c. 126, s. 22, 
 
 " in all cases of wilful or malicious 
 
 " injuries to propei'ty, where justices 
 
 " have the power of awarding com- 
 
 FisH. Dig.— 24. Digitized by Microsoft® 
 
322 
 
 MALICIOUS INJURY. 
 
 " pensation to the party injured, his 
 " right thereto is not to be aiFected 
 " by reason of his being a witness 
 " in proof of the offence." 
 
 14. Killing or Maiming Cattle or 
 other Aniinals. 
 
 Statute.]— 'Bj 24 & 25 Vict. c. 
 97, s. 40, " whosoever shall unlaw- 
 " fully and maliciously kill, maim 
 " or wound any cattle shall be guilty 
 " of felony." {Former provision, 7 
 & 8 Geo. 4, c. 30, s. 16.) 
 
 By s. 41, "whosoever shall un- 
 " lawfully and maliciously kill, 
 " maim or wound any dog, bird, 
 " beast or other animal, not being 
 " cattle, but being either the subject 
 " of larceny at common law, or 
 " being ordinarily kept in a state of 
 " confinement, or for any domestic 
 " purpose, shall, on conviction theVe- 
 " of before a j ustice of the peace, at 
 " the discretion of the justice, either 
 " be committed to the common gaol 
 " or house of correction, there to be 
 " imprisoned only, or to be impris- 
 " oned and kept to hard labour for 
 " any term not exceeding six months, 
 " or else shall forfeit and pay, over 
 " and above the amount of injury 
 " done, such sum of money, not ex- 
 " ceeding 20Z., as to the justice shall 
 " seem meet ; and whosoever, hav- 
 " ing been convicted of any such of- 
 " fence, shall afterwards commit 
 " any of the said offences in this sec- 
 " tion before mentioned, and shall 
 " be convicted thereof in like man- 
 "ner, shall be committed to the 
 " common gaol or house of correc- 
 " tion, there to be kept to hard la- 
 " hour for such term not exceeding 
 " twelve months, as the convicting 
 " justice shall think fit." {Former 
 Provision, 7 & 8 Geo. 4, c. 30, s. 
 17.) 
 
 By s. 58, " malice against the 
 " owner of the cattle or other ani- 
 " mal injured is unnecessary to be 
 " shewn." 
 
 2'he 7 Geo. 4, c. 27, repealed 37 
 Hen. 8, c. 6 ; 22 & 23 Car. 2, c. 7 ; 
 9 Geo. 1, c. 22 {the Black Act) ; and 
 
 4 Geo. 4, c. 54 ; and 24 & 25 Vict, 
 c. 95, repeals 7 & 8 Geo. 4, c. 16 
 and 7 Will. 4 & 1 Vict. c. 90, s. 2. 
 
 Horses, mares and colts were in- 
 cluded in the word " cattle " in 9 
 Geo. 1, c. 22. Hex v. Paty, 2 
 East, P. C. 1074 • 1 Leach, C. C. 
 72 ; 2 W. Bl. 721 ; S. P., Rex v. 
 Magle, 2 East, P. C. 1076. 
 
 So were geldings. Rex v. Mott, 
 2 East, P. C. 1075 ; 1 Leach, C. 
 C. 73, n. 
 
 WoundiHg a horse out of malice 
 to the owner, by driving a nail into 
 the frog of his hoof, w^as within 9 
 Geo. 1, c. 22, though the injury was 
 only temporary. Rex v. Haywood, 
 '2 East, P. C. 1076 ; R. & R. C. C. 
 16. 
 
 Pigs were cattle within 9 Geo. 1, 
 c. 22. Bex V. Ghapple, R. & R. C. 
 C. 77. 
 
 So were asses. Rex v. Whitney, 1 
 M. C. C. 3. 
 
 Pouring acid into the eye of a 
 mare, and thereby blinding her, 
 was a maiming. Rex v. Owens, 1 
 M. C. C. 205. 
 
 Injuring a sheep by setting a dog 
 at it was not such a maiming or 
 wounding as was within 4 Geo. 4, c. 
 64, s. 2. Rex v. Hughes, 2C. & 
 P. 420— Park. But see Elmsley's 
 case, 2 Lewin, C. C. 126. 
 
 If A. set fire to a cow-house and 
 burnt to death a cow which was 
 in it, A. was indictable under 7 & 
 8 Geo. 4, c. 30, s. 16, for killing the 
 cow. Rex V. Haiighton, 5 C. & P. 
 559 — Taunton. 
 
 In order to constitute a maiming 
 of a horse within 7 & 8 Geo. 4, c. 
 30, s. 16, it was essential that a per- 
 manent injury should have been in- 
 flicted on the animal. Reg. v. 
 Jeans, 1 C. & K. 539— Wightman. 
 
 On an indictment on 7 Will. 4 & 
 1 Vict. c. 90, s. 2, for maliciously 
 wounding cattle, it was not neces- 
 sary to prove that the prisoner was 
 actuated by malice against the 
 owner of the cattle. Reg. v. Tivew, 
 1 C. & K. 704 ; 1 Den. C. C. 63. 
 
 A conviction under 7 & 8 Geo. 4, 
 
 Digitized by Microsoft® 
 
MISDEMEANORS— WHAT INDICTABLE. 
 
 323 
 
 c. 30, s. 16, of unlawfully, mali- 
 ciously and feloniously wounding a 
 mare, held right. Ih. 
 
 Upon an indictment under 24 & 
 25 Vict. c. 97, s. 40, for malicious- 
 ly wounding a horse, it is not nec- 
 essary to prove that any instru- 
 ment was used to iniiict the wound. 
 Reg. V. Bullock, 1 L. R., C. C. 115 ; 
 37 L. J., M. C. 47 ; 17 L. T., N. S. 
 516; 16 W.R. 405; 11 Cox, C. C. 
 125. 
 
 Indictment.'] — On an indictment 
 for maliciously killing two sheep, 
 the property in them may be laid to 
 he in the aajister. Rex v. Woodward, 
 2 East, P. C. 653. 
 
 An indictment on 9 Geo. 1, c. 22, 
 must have stated the species and 
 sex of cattle wounded or injured ; to 
 state that the prisoner maimed cer- 
 tain cattle was not sufficient. Rex 
 V. ChalUey, R. & R. C. C. 258. 
 {Form now 24 ^ 25 Vict. c. 97, s. 60.) 
 
 JE}cidence.] — lt a prisoner mixed 
 poison with the corn intended for 
 the feed of eight horses, and then 
 gave each horse his feed from this 
 mixture, an indictment charging 
 that he did administer the poison to 
 the eight horses, is correct. Rex v. 
 Mogg, 4 C. & P. 364— Park. 
 
 On an indictment for administer- 
 ing sulphuric acid to eight horses, 
 with ifitent to kill them, the prose- 
 cutor may give evidence of adminis- 
 tering, at diiferent times, to shew 
 the intent; hut if the jury is satis- 
 fied that the offender administered 
 the poison imder an idea that it 
 would improve the appearance of 
 the horses, he ought to be acquitted. 
 Ih. 
 
 XXII. MlSDEMEAKOKS. 
 
 1 . Whnt Indictable in general, 323. 
 
 2. Attempt to commit, 324. 
 
 1 . What Indictable in general. 
 By 14 & 15 Vict. c. 100, s. 12, 
 " if, upon the trial of any person for 
 
 " any misdemeanor, it shall appear 
 " that the facts given in evidence 
 " amount, in law, to a felony, such 
 " person shall not by reason thereof 
 " be entitled to be acquitted of such 
 " misdemeanor, and no person tried 
 " for such misdemeanor shall be li- 
 " able to be afterwards prosecuted 
 " for felony on the same facts, un- 
 " less the court, before which such 
 " trial may be had, shall think fit, 
 " in its discretion, to discharge the 
 "jury from giving any verdict 
 " upon such trial, and to direct such 
 " person to be indicted for felony, 
 " in which case such person may be 
 " dealt with in all respects as if he 
 "had not been put upon his trial 
 " for such misdemeanor." 
 
 Upon an indictment for a misde- 
 meanor, it is no ground for an ac- 
 quittal that the evidence necessary 
 to prove the misdemeanor also shews 
 it is part of a felony, and that the 
 felony has been completed. Reg. v. 
 BiMon, 3 Cox, C. C. 229. 
 
 It is not indictable if an overseer, 
 without fraud or menace, remove a 
 pauper under an order, after it has 
 been confirmed, on appeal, by the 
 sessions, subject to the opinion of 
 the Queen's Bench and before its 
 final determination by that, court. 
 Reg. V. Cooper, 3 New Sess. Cas. 
 346; 18L. J., M. C. 16— Q. B. 
 
 A parent, who has not the means 
 of providing burial for the body of 
 his deceased child, is not liable to 
 be indicted for a misdemeanor in 
 not providing for its burial, even 
 though a nuisance is occasioned by 
 allowing the body to remain un- 
 buried, and although the poor-law 
 authorities of the union have offer- 
 ed him money to defray the expen- 
 ses of burial, by way of loan, as he 
 is not bound under such circum- 
 stances to contract a debt. Reg. v. 
 Vann, 2 Den. C. C. 325 ; T. & M. 
 632 ; 15 Jur. 1090 ; 21 L. J., M. C. 
 39. 
 
 A conspiracy to procure by false 
 pretences, false representations, and 
 other fraudulent means, a young 
 
 Digitized by Microsoft® 
 
324 
 
 MISDEMEANORS. 
 
 girl to have illicit carnal connexion 
 with a man, is a misdemeanor at 
 common law. Reg. v. Mears, T. & 
 M. 414; 2 Den. C. C. 79 ; 15 Jur. 
 66 ; 20 L. J., M. C. 59. See 24 & 
 25 Vict. c. 95. 
 
 It is a misdemeanor to procure 
 indecent prints with intent to pub- 
 lish them. Dugdcde v. Meg. (in ei'- 
 ror), 1 El. & Bl. 435 ; Dears. C. 
 C. 64 ; 17 Jur. 546 ; 22 L. J., M. 
 C. 50. 
 
 But to preserve and keep them in 
 possession with such intent is not. 
 lb. 
 
 Therefore, where some counts 
 charged that the defendant obtain- 
 ed and procured indecent prints, in 
 order and for the purpose of unlaw- 
 fully publishing and selling them, 
 and thereby corrupting the public 
 morals, and other counts charged 
 that the defendant unlawfully and 
 knowingly preserved and kept in 
 possession indecent prints, with the 
 same intent : — Held, that the for- 
 mer counts were good, inasmuch 
 as they charged an act done to- 
 wards the commission of a misde- 
 meanor ; but that the latter counts 
 were bad, inasmuch as they did not 
 charge such an act. lb. 
 
 Uttering a false testimonial to 
 character, knowing it to be forged, 
 with intent to deceive, and thereby 
 obtaining a situation of emolument, 
 is a misdemeanor at common law. 
 Reg. V. Sharman, Dears. C. C. 285 : 
 18 Jur. 157 ; 23 L. J., M. 0. 51. 
 
 2. Attempt to commit. 
 By 14 & 15 Vict. c. 100, s. 9, 
 " whereas offenders often escape 
 " conviction by reason that such 
 " persons ought to have been charg- 
 " ed with attempting to commit of- 
 " fences, and not with the actual 
 " commission thereofj for remedy 
 " thereof be it enacted, that if, on 
 " the trial of any person charged 
 " with any felony or misdemeanor, 
 " it shall appear to the jury, upon 
 " the evidence, that the defendant 
 " did not complete the offence 
 
 " charged, but that he was guilty 
 " only of an attempt to commit the 
 " same, such person shall not by 
 " reason thereof be entitled to be 
 " acquitted, but the jury shall be 
 " at liberty to return as their ver- 
 " diet that the defendant is not 
 " guilty of the felony or misdemean- 
 '' or charged, but is guilty of an at- 
 " tempt to commit the same, and 
 " thereupon such person shall be 11- 
 " able to be punished in the same 
 " manner as if he had been con- 
 " victed upon an indictment for at- 
 " tempting to commit the particular 
 " felony or misdemeanor charged in 
 " the indictment ; and no person so 
 " tried as herein lastly mentioned 
 " shall be liable to be afterwards 
 " prosecuted for an attempt to com- 
 " mit the felony or misdemeanor 
 " for which he was so tried." 
 
 A. was indicted for breaking and 
 entering a dwelling-house, and steal- 
 ing certain specified goods. It ap- 
 peared that, at the time of the 
 brealdng and entering, the goods 
 named in the indictment were not 
 in the house, but there were other 
 goods there belonging to the pros- 
 ecutor. The jury found that he 
 was not guilty of the felony charged, 
 but that he was guilty of breaking 
 and entering the dwelling-house of 
 the prosecutor, and attempting to 
 steal his goods therein : — Held, 
 that there was no attempt t<5 com- 
 mit the felony charged within the 
 meaning of the above section, and 
 therefore the verdict could not be 
 sustained. Reg.y.lPPherson^Deskrs. 
 & B. C. C. 197 ; 3 Jur., N. S. 523 ; 
 26 L. J., M. C. 134. 
 
 The moment a man takes one 
 necessary step towards the comple- 
 tion of a misdemeanor, he commits 
 a misdemeanor. Reg. v. Chapman, 
 2 C. & K. 846 ; 1 lien. C. C. 432 ; 
 T. & M. 90 ; 13 Jur. 885 ; 18 L. J., 
 M. 0. 152. 
 
 Every step towards a misdemean- 
 or, by an act done, is punishable as 
 a misdemeanor. lb. 
 
 Any one act of fraud upon a pub- 
 
 Digitized by Microsoft® 
 
MURDER, MANSLAUGHTER, ETC. — MURDER. 325 
 
 lie officer, with intent to deceive, 
 whereby a matter required by law 
 for the accomplishment of an act of 
 a public nature is illegally obtained, 
 amounts to an indictable misde- 
 meanor ; and it need not be alleged 
 or proved either that the act was in 
 fact accomplished, or that the pariy, 
 at the time of committing the fraud, 
 intended that it should be. lb. 
 
 A false oath taken before a surro- 
 gate, with intent to deceive such 
 surrogate, and to obtain from him a 
 license for a marriage, is punishable 
 as a misdemeanor, although it is not 
 alleged in the indictment, nor prov- 
 ed in evidence, that the marriage 
 was in fact celebrated, and although 
 the party found guilty was not the 
 person about to be married. lb. 
 
 Every attempt (not every inten- 
 tion, but every attempt) to com- 
 mit a misdemeanor is a misdemean- 
 or. Beg. v. Martin, 9 C. & P. 
 215— Patteson ; S. P., Reg. v. Mar- 
 tin, e C. & P. 213 ; 2 M. C. C. 123. 
 
 An attempt to commit a misde- 
 meanor is a misdemeanor, whether 
 the oifence was created by statute, 
 or was an oifence at common law. 
 Rex V. Roderick, 7 C. & P. 795. 
 — Parke ; JRex v. Gartwright, R. 
 & R. C. C. 107— Le Blanc; 
 Rex V. Butler, 6 C. & P. 368— Pat- 
 teson. 
 
 An indictment which merely 
 charges that the defendant did un- 
 lawfully attempt and endeavor 
 fraudulently, falsely and unlawfully 
 to obtain from A. a large sum of 
 money with intent to cheat and de- 
 fraud him, is bad in arrest of judg- 
 ment. Reg. V. Marsh, 3 Cox, C. 
 C. 571 ; 19 L. X, M. C. 12. 
 
 B. was indicted under 24 & 25 
 Vict. c. 96, s. 57, for having feloni- 
 ously broken into and entered a shop, 
 with the intent to commit a felony 
 therein. It was proved that he 
 made a hole in the roof, with intent 
 to enter and steal, but was disturb- 
 ed. There was no evidence of his 
 having in any way entered the build- 
 ing :— Held, that he was properly 
 
 convicted of a misdemeanor of at- 
 tempting to commit a felony. Reg. 
 V. Bain, L. & C. 129 ; 9 Cox, 0. 
 C. 98 ; 8 Jur., N. S. 418 ; 31 L. J., 
 M. C. 88; 10W.R.-236. 
 
 An attempt to commit a felony 
 can only be made out where, if no 
 interruption had taken place, the 
 felony itself could have been eifect- 
 ed. Reg. v. Collins, L. & C. 471 ; 
 9 Cox, C. C. 497 ; 10 Jur., N. S. 
 686 ; 33 L. J., M. C. 177 ; 12 W. 
 R. 886 ; 10 L. T., N. S. 581. 
 
 XXni. MuKDEE, Manslaughtee, 
 AND Offences against the 
 Pbeson. 
 
 1 Murder, 326. 
 
 2. jManslauffhter. 334. 
 
 3. Abroad and at Sea, 346. 
 
 4. Principles, Accessories and Abet- 
 
 tors, 349. 
 
 5. Conspiring, or Soliciting to commit 
 
 Murder, 350. 
 
 6. Attempts to Murder and Inflicting 
 
 grievous Bodily Harm, 350. 
 
 (a) Bjj Administering Poison, 
 350. 
 
 Qi) With Intent to procure Mis- 
 carriage or Abortion, 353. 
 
 fc^ By Shooting, Wounding, 
 ' Drowning, Suffocating or 
 
 Strangling, 354. 
 
 (d) Inflicting Grievous Bodily 
 
 Harm, 358. 
 
 (e) By Resisting or Preventing 
 
 the Apprehension or De- 
 tainer of Persons, 363. 
 
 (f) By Means of Gunpowder or 
 
 other Explosive Substan- 
 ces, 364. 
 
 (S) ^y netting Fire to or casting 
 away Ships, 365. 
 
 (h) Preventing Rescue from 
 Shipwreck, 365. 
 
 (\) By other Means, 365. 
 
 7. Spring Guns, 366. 
 
 8. Illlreating Children, Apprentices, 
 
 Servants, Idiots, and Helpless 
 Persons, 366. 
 
 (a) The Offence, 366. 
 
 (b) Indictment, 370. 
 
 (c) Evidence, S7 1. 
 
 9. Injuring Persons by Wanton or 
 
 Furious Driving, 371. 
 
 10. Indictment for Murder and Man- 
 
 slaughter, 371. 
 
 11. Declarations in Articulo Mortis, 
 
 375. 
 
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326 
 
 MURDER, jIANSLAUGHTER, ETC. 
 
 12. En'dence and Witnesses, 380. 
 
 13. Trial, Judgment, and Execution 
 
 in Murder, 382. 
 
 14. Funishment for Manslaughter, 383. 
 
 1. Murder. 
 
 Statute.]— By 24 & 25 Vict. c. 
 100, s. 1, " whosoever shall be con- 
 " victed of murder shall sufler death^ 
 " as a felon." 
 
 By s. 8, " every offence which, be- 
 " fore the commencement of 9 Geo. 
 " 4, c. 31, would have amounted to 
 " petit treason, shall be deemed to 
 " be murder only, and no greater 
 " offence ; and all persons guilty in 
 " respect thereof, whether as princi- 
 " pals or as accessories, shall be 
 " dealt with, indicted, tried and 
 " punished as principals and acces- 
 " scries in murder." 
 
 General Principles.'] — Accident- 
 al homicide may be murder, if it 
 happens in the prosecution of any 
 illegal act ; as in carrying away fur- 
 niture to avoid distress for rent. 
 Eex V. Hodgson, 1 Leach, 0. C. 6 ; 
 S. G. nom. Rex v. Hubson, 1 East, 
 P. C. 258. 
 
 The killing a man on the high- 
 way is not justifiable homiciie, un- 
 less there was an intention on the 
 part of the person killed to rob or 
 murder, or do some dreadful bodily 
 injury to the person killing ; or in 
 other words, the conduct of the 
 party must be such as to render it 
 necessary on the part of the party 
 killing to do the act in self-defence. 
 Reg. V. Bull, 9 C. & P. 22— Vaugh- 
 an and WiUiams. 
 
 In a case of death by stabbing, 
 if the jury is of opinion that the 
 wound was inflicted by the prisoner' 
 while smarting under a provocation, 
 so recent and so gtrong that he may 
 be considered as not being at the 
 moment master of his own under- 
 standing, the offence will be man- 
 slaughter ; but if there has been, after 
 provocation, sufficient time for the 
 blood to cool, for reason to resume 
 its seat, before the mortal wound 
 
 was given, the offence will amount 
 to murder ; and if the prisoner dis- 
 plays thought, contrivance and de- 
 sign in the mode of possessing him- 
 self of the weapon, and in again re- 
 placing it immediately after the blow 
 was struck, such exercise of contriv- 
 ance and design denotes rather the 
 presence of j udgment and reason than 
 of violent and ungovernable passion. 
 Rex V. Hayward, 6 G. & P. 157 — 
 Tindal. 
 
 It is no excuse for killing a man 
 who was out at night dressed in 
 white as a ghost, for the purpose of 
 frightening the neighbourhood, that 
 he could not otheiTvise be taken. 
 Rex V. Smith, 1 Russ. C. & M. 749. 
 
 Where a wound is willfully, and 
 without justifiable cause, inflicted, 
 and ultimately becomes the cause 
 of death, the party who inflicted it 
 is guilty of murder, though fife 
 might have been preserved if the 
 deceased had not refused to submit 
 to a surgical operation. Re^. v. 
 Holland, 2 M. & Rob. 351— Maule. 
 
 The circumstance of a person hav- 
 ing acted under an irresistible in- 
 fluence to the commission of homi- 
 cide, is no defence, if at the time he 
 committed the act he knew he was 
 doing what was wrong. Reg. v. 
 Haynes, 1 F. & F. 666— Bramwell. 
 
 An indictment stated that the 
 prisoners gave, administered and 
 delivered to A. large and excessive 
 quantities of spirits and water, wine 
 and porter, and induced, procured 
 and persuaded him to drink them, 
 being likely to cause death, whidh 
 they well knew. The deceased was 
 a man in possession under the sher- 
 iff, and one of the prisoners, of 
 whose goods he was in possession, 
 assisted by his brother and a friend, 
 plied the man with liquor, them- 
 selves drinking freely also, and when 
 he was very drunk put him into a 
 cabriolet and caused him to be driv- 
 en" about the streets ; and about 
 two hours after he had been put in- 
 to the cabriolet he was found dead : 
 — Held, that, if it was essential to 
 
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MURDER. 
 
 327 
 
 prove that the prisoners knew that 
 the liquors were likely to cause death, 
 the case would be one of murder and 
 not of manslaughter ; but that such al- 
 legation was not a material part of 
 the indictment, but might bedismiss- 
 , ed from the jury's consideration. 
 Reg. V. Packard, Car. & M. 236— 
 Parke. , 
 
 Held, also, that if the prisoners, 
 when the deceased was drunk, put 
 him into a cabriolet and drove him 
 about in order to keep him out of 
 possession, and by so doing accele- 
 rated his death, it would be man- 
 slaughter. Ih. 
 
 If a father sees a person in the 
 act of committing an unnatural of- 
 fence with his son, and instantly 
 kills him, it seems that it would 
 only be manslaughter, and that of 
 the lowest degree ; but if he only 
 ihears of it, and goes in search of the 
 person, and meeting him, strikes 
 him with a stick, and afterwards 
 stabs him with a knife and kills 
 him, in point of law it will be mur- 
 der. Reg. V. Fisher, 8 C. & P. 
 182 — Park, Parke and Recorder 
 Law. 
 
 In a case of killing, whether the 
 blood has had time to cool or not 
 is a question for the court, and not 
 for the jury ; but it is for the jury 
 to find what length of time elapsed 
 between the provocation received 
 and the act done. lb. 
 
 Where it appears that one per- 
 son's death is occasioned by the 
 hand of another, it is for that other 
 to shew, either by evidence or by 
 inference from the circumstance of 
 the case, that his offence is of a 
 mitigated character, and does not 
 amount to the crime of murder. 
 Rex V. Greenacre, 8 C. & P. 35 — 
 Tindal, Coleridge, Coltman and Re- 
 corder Law. 
 
 Forcing a person to do an act 
 which is likely to produce his death, 
 and which does produce it, is mur- 
 der. Rex V. Evans 1 Russ. C. & 
 M. 676. 
 
 And threats may constitute such 
 force. lb. 
 
 If two persons fight, and one over- 
 powers the other, and knocks him 
 down, and puts a rope around his 
 neck and strangles him, this will 
 be murder. Bex v. Shaw, 6 C. & 
 P. 372— Patteson. 
 • If a person, being in possession of 
 a deadly weapon, enters into a con- 
 test with another, intending at the 
 same time to avail himself of it, and 
 in the course of the contest actually 
 uses it, and kills the other, it will be 
 murder ; but if he did not intend to 
 use it when he began the contest, 
 but used it in the heat of passion, 
 in consequence of an attack made 
 upon him, it will be manslaughter. 
 If he uses it to protect his own 
 life, or to protect himself from 
 such serious bodily harm as would 
 give him a reasonable apprehension 
 that his life was in immediate dan- 
 ger, having no other means of de- 
 fence, and no means of escape, and 
 retreating as far as he can, it will be 
 justifiable homicide. Reg. v. Smith, 
 8 C. &P. 160— Bosanquet, BoUand 
 and Coltman. 
 
 A person cannot be indicted for 
 murder in procuring another to be 
 executed by falsely charging him 
 with a crime of which he was inno- 
 cent. Rex V. Macdaniel, 1 Leach, 
 C. C. 44; 1 East, P. C. 333. 
 
 Even blows previously received 
 will not extenuate homicide upon 
 deliberate malice and revenge; es- 
 pecially where it is to be collected 
 from the circumstances that the 
 provocation was sought for the pur- 
 pose of colouring the revenge. 
 Rex V. Mason, 1 East, P. C. 239. 
 
 If a blow without provocation is 
 wilfully inflicted, the law infers 
 that it was done with malice afore- 
 thought, and if death ensues, the 
 offender is guilty of murder, al- 
 though the blow may have been 
 given in a moment of passion. 
 Reg. V. Noon, 6 Cox, C. C. 137— 
 Cresswell. 
 
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328 
 
 MUBDER, MANSLAUGHTER, ETC. 
 
 As an assault, though illegal, will 
 not reduce the crime of the party 
 killing the person assaulting him to 
 manslaughter, when the revenge is 
 disproportionate and barbarous, 
 much less will such personal re- 
 straint and coercion as one man may 
 lawfully use towards another form 
 any ground of extenuation. Hex v. 
 WiUoughby, 1 East, P. C. 288. 
 
 If A. stands with an offensive 
 weapon in the doorway of a room, 
 wrongfully to prevent J. S. from 
 leaving it, and' others from entering, 
 and C, who has a right in the room, 
 struggles with him to get his weap- 
 on from him, upon which D., a com- 
 rade of A., stabs C, it will be mur- 
 der in D. if C. dies. Rex v. Long- 
 den, R. & R. C. 0. 228. 
 
 A father struck a fatal blow at 
 the husband under the imimlse of a 
 strong resentment, caused by seeing 
 his daughter violently assaulted by 
 her husband, although not in a man- 
 ner to endanger her life : — Held, 
 that this might be a ground upon 
 which the oifence of murder might 
 be reduced to that of manslaughter. 
 Heg. V. Harrington, 10 Cox, C. C. 
 370— Cockburn. 
 
 An assault, too slight in itself to 
 be a sufficient provocation to reduce 
 murder to manslaughter, may be- 
 come sufficient for that purpose 
 when coupled with words of great 
 insult. Meg. v. Smith, 4 F. & F. 
 1066— Byles. 
 
 j% Parties acting together, and 
 with a common Design.'] — On an in- 
 dictment of A. & B. for murder, it 
 appeared that both followed the de- 
 ceased out at night, and that A., 
 who was the first to overtake him, 
 threw him down a steep bank into a 
 wet ditch, and then tried to rob him, 
 and not being able, owing to his re- 
 sistance, called to B., who then was 
 on the top of the bank, to come and 
 help, which he did, and they both 
 forcibly committed the robbery. It 
 did not appear that there was any 
 serious injury, except that caused by 
 
 the fall, and the deceased died three 
 weeks afterwards of pneumonia, or 
 inflammation of the lungs, which 
 might either be caused by cold or 
 violence : — Held, that though there 
 was evidence against both for mur- 
 der, there was not sufficient to con- 
 vict, unless the jury was satisfied 
 that there was a joint design to com- 
 mit the violence, nor to convict 
 either, unless satisfied that it caused 
 the death. Beg. v. Lee, 4 F. & F. 
 63— Pollock. 
 
 Where two persons go out with 
 the common object of robbing a 
 third person, and one of them, in 
 pursuit of that common object, does 
 an act which causes the death of 
 that third person, under such cir- 
 cumstances as to be murder in him 
 who does the act, it is murder in 
 the other also. Reg. v. Jackson, 7 
 Cox, C. C. 357— Martin. 
 
 The doctrine of constructive hom- 
 icide, as regards offenders not act- 
 ually present at, or parties to, an 
 act of homicide, but sought to 
 be made liable for it, by reason of 
 tteir being engaged in a common 
 purpose, in the course of carrying 
 out which the act of homicide oc- 
 curs, only applies (there being no 
 evidence of a common intent to car- 
 ry out the purpose at all hazards, 
 and by all means) , where the com- 
 mon purpose is felonious ; not where 
 it is merely unlawful, as in the case 
 of a misdemeanor, such as night- 
 poaching. Reg. V. Skeet, 4 F. & F. 
 931— Pollock. 
 
 Therefore, where several men 
 were engaged at night-poaching, 
 and in a scuffle with a gamekeeper 
 he was killed by a shot from the 
 gun of one of them : — Held, that 
 whether or not the gun was fired, 
 there being no evidence to shew 
 that the other prisoners were par- 
 ties to the act of firing it, they were 
 not guilty even of manslaughter; 
 merely by reason of the act of hom- 
 icide occurring in the course of 
 poaching. Ih. 
 
 Held, that even although the gun 
 
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MURDER. 
 
 329 
 
 went off accidentally in the course 
 of a scuffle with the keeper, he hav- 
 ing a right to take the gun, it was 
 manslaughter in the man who caus- 
 ed it. lb. 
 
 In Self-defence.'] — If a person is 
 impressed who is not a proper ob- 
 ject of impressment, or if the im- 
 pressment is made withoiit any legal 
 warrant, it is lawful for the party 
 to make resistance ; 'and if the death 
 of any of the parties concerned en- 
 sues, it is murder. Rex v. Dixon, 1 
 East, P. C. 313 ; R. & R. C. C. 53 ; 
 S. P., Hex V. JRokeby, 1 East, P. C. 
 312. 
 
 If a person being attacked should, 
 from an apprehension of immediate 
 violence — an apprehension which 
 must be well grounded and justified 
 by the circumstances — throw him- 
 self for escape into a river, and be 
 drowned, the person attacking him 
 is guilty of murder. Seff. v. Pitts, 
 Car. & M. 284— Erskine. 
 
 A person set to watch a yard or a 
 garden is not justified in shooting 
 any one who comes into it in the 
 night, even if he should see the par- 
 ty go into his master's hen-roost ; 
 but if, from the conduct of the par- 
 ty, he has fair grounds for believing 
 his own life in actual and immediate 
 danger, he is justified in shooting 
 him. Hex v. Scidli/, 1 C. & P. 319 
 — Garrow. 
 
 By firing Buildings or Stacksi\ — 
 Where a person indicted for mur- 
 der had wilfully set fire to a stack 
 of straw, close to an out-house or a 
 barn, in an inclosure not adjoining 
 to a dwelling-house, and the deceas- 
 ed burned to death, either in the 
 out-house or on or by the side of 
 the stack : — ^Held, that he was not 
 guilty of murder, unless the deceas- 
 ed was ttiere when he set fire to the 
 stack. Reg. v. Horsey, 3 F. & F. 
 287 — Bramwell. 
 
 QhiU Murder.]— 1o justify a con- 
 viction on an mdictment charging a 
 
 Fish. Dig.— 25. Qjgjfj^ed by Microsoft® 
 
 woman with the wilful murder of a , 
 child of which she was dehvered, 
 and which was born alive, the jury 
 must be satisfied affirmatively that 
 the whole body was brought alive 
 into the world ; and it is not suffi- 
 cient that the child has breathed in 
 the progress of the birth. Rex v. 
 Poulton, 5 C. & P. 329— Littledale; 
 S. P., Rex V. Rnoch, 5 C. & P. 539 
 — Parke. 
 
 If a child has been wholly pro- 
 duced from the body of its moth- 
 er, and she wilfully and of malice 
 aforethought, strangles it while it is 
 alive and has an independent' circu- 
 lation, this is murder, although the 
 child is still attached to its mother 
 by the umbilical cord. Reg. v. 
 TriUoe, Car. & M. 650 ; 2 M. C. C. 
 260. 
 
 A girl was indicted for the mur- 
 der of her child, aged sixteen days. 
 She was proceeding from Bristol to 
 Llandogo, and was seen near Tin- 
 tern, with the child in her arms, at 
 6 p.m. ; she arrived at Llandogo 
 between 8 and 9 p.m., without the 
 child. The body of a child was af- 
 terwards found in the river Wye, 
 near Tinterfl, which appeared not 
 to be the child of the prisoner : — 
 Held, that she must be acquitted, 
 and that she could not by law either 
 be called upon to account for her 
 child, or to say where it was, unless 
 there was evidence to shew that her 
 child was actually dead. Reg. v. 
 Hopkins, 8 C. & P. 591— Abinger. 
 
 A prisoner was charged with the 
 murder of her new-born child, by 
 cutting off its head : — Held, that in 
 order to justify a conviction for 
 murder, the jury must be satisfied 
 that the entire child was actually 
 born into the world in a living 
 state ; and that the fact of its hav- 
 ing breathed is not a decisive proof 
 that it was born alive, as it may 
 have breathed, and yet died before 
 birth. Rex v. Seliis, 7 C. & P. 850 
 — Coltman. 
 
 On a charge of child-murder, it 
 appeared that the child must have 
 
330 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 died before it had an independent 
 circulation : — Held, that as the child 
 had never had an independent cir- 
 culation, the charge of murder could 
 not be sustained. Reg. v. Wright, 
 9 C. & P. 754— Gurney. 
 
 An unskilful practitioner of mid- 
 wifery wounded the head of a child 
 before the child was perfectly born. 
 The child was afterwards born alive, 
 but subsequently died of this injury : 
 — Held, manslaughter, although the 
 child was in ventre sa mere at the 
 time when the wound was given. 
 Bex V. Senior, 1 M. G. C. 346 : 1 
 Lewin, C. C. 183, n. 
 
 On the trial of an indictment 
 against a woman for the man- 
 slaughter of her new-born child, 
 the evidence went to prove that the 
 child had dropped from her whilst 
 she was on the privy, and that it 
 had been smothered in the soil : — 
 Held, that if the jury was of opinion 
 that after it had been born the moth- 
 er had the power of procuring such 
 assistance as might have saved the 
 child's life, and she neglected to 
 procure it, she was guilty of man- 
 slaughter, Reg. v. MiddUsMp, 5 
 Cox, C. C. 275— Erie. 
 
 Killing Wife caught in Adulterg.^ 
 — If a man finds his wife in the act 
 of committing adultery, and kills 
 her, this will be but manslaughter 
 only ; but if a man takes away the 
 life of a woman, even his own wife, 
 because he suspects, however strong- 
 ly, that she has been engaged in some 
 illicit intrigue, this will be murder. 
 Reg. v. Kelh, 2 C. & K. 814 — 
 Rolfe. 
 
 If a man kills his wife, or the 
 adulterer, in the act of adultery, 
 it is manslaughter and not murder. 
 Pearson''s case, 2 Lewin, C. C. 216 — 
 Parke. 
 
 j^ Poisoning.] — On a trial for 
 murder by poisoning, statements 
 made by the deceased in a conver- 
 sation diortly before the time at 
 which, the poison is supposed to 
 
 have been administered, are evi- 
 dence to prove the state of his 
 health at that time. Reg. v. John- 
 son, 2 C. & K. 354 — ^Alderson. 
 
 On an indictment against a wo- 
 man for the murder of her hus- 
 band by arsenic, in September, evi- 
 dence was tendered on behalf of the 
 prosecution of arsenic having been 
 taken by her two sons, one of whom 
 died in December and the other in 
 March subsequently, and also by a 
 third son, who took arsenic in April 
 following, but did not die. Proof 
 was given of a similarity of symp- 
 toms in the four cases. Evidence 
 was also tendered that she lived in 
 the same house with her husband 
 and sons, and that she prepared 
 their tea, cooked their victuals, and 
 distributed them to the four parties : 
 — Held, that this evidence was ad- 
 missible for the purpose of proving, 
 first,' that the deceased husband act- 
 ually died of arsenic ; secondly, that 
 his death was not accidental ; and 
 that it was not inadmissible by rea- 
 son of its tendency to prove or cre- 
 ate a suspicion of a subsequent fel- 
 ony. Reqr. v. Geering, 18 L. J., M. 
 C. 215— Pollock. 
 
 On an indictment for the murder 
 of A., evidence is not admissible 
 that three others in the same family 
 died of a similar poison, and that 
 the prisoner was at all the deaths, 
 and administered something to two 
 of these patients. Reg. v. Winslow, 
 8 Cox, C. C. 397— Martin. 
 
 Upon the trial of a husband and 
 wife for the murder of the mother 
 of the former by administering ar- 
 senic to her, for the purpose of re- 
 butting the inference that the ar- 
 senic had been taken by accident, 
 evidence was admitted that the 
 male prisoner's first wife had been 
 poisoned nine months previously ; 
 that the woman who waitpd upon 
 her, and occasionally tasted her 
 food, shewed symptcjms of having 
 taken poison ; that the food was al- 
 ways prepared by the female prison- 
 er ; and that the two prisoners, the 
 
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MURDER. 
 
 331 
 
 only otl^er persons in the house, were 
 not affected with any symptoms of 
 poison. Reg. v. Garner, 4 F. & F. 
 346— Willes. 
 
 A., at the instigation of a woman 
 who was pregnant by him, and in- 
 fluenced by her threats of self-de- 
 struction if the means of procuring 
 abortion were not supplied to her, 
 procured some corrosive sublimate, 
 and handed it to the woman, who 
 took it, and died from its effects. 
 He was not present when the poison 
 was taken by the woman. He was 
 indicted for murder. The jury neg- 
 atived the fact of his having admin- 
 istered the poison, or caused it to 
 be taken by the woman, but said 
 that he delivered it to her with the 
 full knowledge of the purpose to 
 which she intended to apply it : — 
 Held, that he was not guilty of 
 murder. Heg. v. FretweU, 9 Cox, 
 C. C. 152 ; 8 Jur., N. S. 466 ; 31 L. 
 J., M. C. 145 ; 10 W. R. 545 ; 6 L. 
 T., N. S. 333. But see rio^ 24 & 25 
 Vict. o. 100, ss. 58, 59. 
 
 A prisoner was indicted for the 
 murder of her infant child by poi- 
 son. She purchased a bottle of 
 laudanum, and directed the person 
 who had the care of the child to 
 give it a teaspoonful every night. 
 That person did not do so, but 
 put the bottle on the mantle-piece, 
 where another little child found it,' 
 and gave part of the contents to 
 the prisoner's child, who soon after 
 died : — Held, that the administer- 
 ing of the laudanum by the child 
 was as much, in point of law, an 
 •administering by the prisoner, as if 
 she herself had actually adminis- 
 tered it with her own hand. Reg. 
 V. Michael, 9 C. & P. 356 ; 2 M. C. 
 C. 120. 
 
 Killing Gamekeepers and Others.'] 
 — If gamekeepers attempt to appre- 
 hend a gang of night poachers, and 
 one of the gamekeepers is shot by 
 one of the poachers, this will be 
 murder in all the poachers, unless 
 it can be proved that either of them 
 
 separated himself from the rest, so 
 as to shew that he did not join in 
 the act. Rex v. Edmeads, 3 C. & 
 P. 390— Vaughan. 
 
 Where gamekeepers had secured 
 two poachers, and they, having sur- 
 rendered, called to a third, who came 
 up and killed one of the gamekeep- 
 ers, this is murder in all, though the 
 two struck no blow, and though the 
 gamekeepers had not announced in 
 what capacity they had apprehended 
 them. Rex v. Whithorne, 3 C. & P. 
 394 — Vaughan., 
 
 Under 9 Geo. 4, c. 69, s. 2, a 
 gamekeeper may apprehend poach- 
 ers, though there are three or more, 
 and found armed; for though s. 2 only 
 authorises apprehending for what are 
 oifences under s. 1 , and when there 
 are three or more armed, they are 
 punishable under s. 9 ; yet what is 
 punishable under s. 9 is nevertheless 
 an offence under s. 1, though the 
 circumstances of aggravation make 
 it liable to a greater punishment ; 
 and if the gamekeeper is killed in 
 the attempt to apprehend, the of- 
 fender will be guilty of murder, 
 though the gamekeeper had previ- 
 ously struck the offender, or any of 
 his party, if he struck in aelf-defence 
 only, and to diminish the violence 
 illegally used against him, and not 
 vindictively to punish. Rex v. Ball, 
 1 M. C. C. 330. 
 
 If a gamekeeper attenipting law- 
 fully to apprehend a poacher, is met 
 with violence, and in opposition to 
 such violence and in self-defence 
 strikes the poacher, and then is lull- 
 ed by the poacher, it will be mur- 
 der. Rex V. BaU, 1 M. C. C. 333. 
 
 A servant of C. attempted to ap- 
 prehend A., who was out night- 
 poaching in a wood, and the serv- 
 ant was killed by A. C. was neith- 
 er the owner nor the occupier of the 
 wood, nor the lord of the manor, 0. 
 having only the permission of the 
 owner of the wood to preserve game 
 there : — Held, that this was man- 
 slaughter only in A. Rex v. Addis, 
 6 C. & P. 388— Patteson. 
 
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332 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 More than nine men, of whom 
 seven were armed with guns, being 
 out at night in pursuit of game, 
 were met, as they passed through a 
 field from one wood to another, by a 
 party of gamekeepers without fire- 
 arms, but who at once assaulted 
 them with sticks ; and one of them 
 with a dangerous weapon, a flail, 
 likely to inflict a deadly injury, 
 with which he struck one of the 
 poachers, upon which another of 
 them fired and killed him. The 
 grand jury was directed to throw 
 out bills for murder against two of 
 the men, one of whom was supposed 
 to have fired the fatal shot, and the 
 whole nine were indicted for man- 
 slaughter. There was evidence that 
 they all stood in a row and cried 
 "shoot" :— Held, that whether or 
 not the man who fired the shot 
 could be identified, none of the pris- 
 oners would be guilty unless parties 
 to the act of firing ; and that though 
 their being in a row and crying out 
 "shoot" was evidence that they 
 were parties to the act, it was only 
 evidence, and its effect would de- 
 pend upon how far all the circum- 
 stances shewed that the firing was 
 in pursuance of a common design to 
 shoot, or only in consequence of a 
 particular personal encounter. Meg. 
 V. Luck, 3 F. & F. ,483— Byles. 
 
 If the servant of the owner of 
 property found a party actually 
 committing an offence against 7 & 
 8 Geo. 4, c. 29, and apprehended 
 him under s. 63, and, while taking 
 the party to a magistrate, such par- 
 ty killed him, this will be murder ; 
 but if the servant either did not see 
 him in the actual commission of the 
 ofience, or is taking him to any other 
 place than before a magistrate, it 
 will not be murder. Rex v. Gurran, 
 3 C. & P. 397— Vaughan. 
 
 Killing Officers of Justice.'\ — In 
 order to render the killing of an of- 
 ficer of justice, whether he is au- 
 thorized in the right of his office, or 
 by warrant, amount to murder upon 
 
 his interference in an affray, it is nec- 
 essary that he should have given 
 some notification of his being an 
 officer, and of the intent with which 
 he interfel"ed. Hex v. Gordon, 1 
 East, P. C. 315, 352. '' 
 
 Killing an officer will amount to 
 murder, though he had no warrant, 
 and was not present when any fel- 
 ony was oomrttitted, but takes the 
 party upon a charge only ; and 
 though such charge does not in 
 terms specify all the particulars nec- 
 essary to constitute the felony. JRex 
 V. Ford, R. & R. C. C. 329. 
 
 Killing an officer who attempts 
 to arrest a man will be murder, 
 though the officer had no warrant, 
 and though the man has done no- 
 thing for which he is liable to be 
 arrested, if the officer has a charge 
 against him for felony, and the man 
 knows the individual to be an of- 
 ficer, though the officer does not 
 notify him that he has such a charge. 
 Bex V. Woolmer, 1 M. C. C. 334. 
 
 If a person is playing music in a 
 public thoroughfare, and thereby 
 collects together a crowd of people, 
 a policema;n is justified in desiring 
 him to go on, and in laying his hand 
 on him and slightly pushing him, if 
 it is only done to give effect to his 
 remonstrance ; and if the person on 
 so small a provocation strikes the 
 policeman with a dangerous weapon 
 and kills him, it will be murder; 
 but otherwise, if the policeman gives 
 him a blow and knocks him down. 
 Heg. V. Sagan, 8 C. & P. 176— Bol- 
 land and Coltman. 
 
 If a police constable, on being' 
 sent for at a late hour of the night 
 to clear a beer-house, does so, and 
 one of the persons, on leaving the 
 house, and being told to go away, 
 refuses to do so,, and uses threaten- 
 ing language, the constable is justi- 
 fied in laying hands on liim to re- 
 move him ; and if he cuts the con- 
 stable with a knife, with intent to 
 do grievous bodily harm, this is a ' 
 capital offence, and the fact of the 
 constable having laid hands on the 
 
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MURDER. 
 
 333 
 
 party -would not have reduced the 
 crime to manslaughter, if death had 
 ensued. Rex v. Hems, 7 C. & P. 312 
 — Williams. 
 
 If a ship's sentinel shoots a man 
 becanse he persists in approaching 
 the ship when he has been ordered 
 not to do BO, it will be murder un- 
 less such an act was necessary for 
 the ship's safety. Rex \. Thomas, 
 1 Russ. C. & M. 823. 
 
 A police officer found N. with po- 
 tatoes under his shirt, which had been 
 recently dug from the ground, and 
 apprehended him. The policeman 
 called O. to assist him ; O. did so, 
 and a rescue being attempted, O. 
 was struck by A., who went away, 
 and O. was afterwards killed by 
 other persons, who attempted the 
 rescue : — Held, that the police of- 
 ficer had no right to apprehend N., 
 and that the killing of O., therefore, 
 did not amount to murder, and that, 
 on an indictment for murder, A. 
 could not be convicted of an as- 
 sault. Reg. V. Phelps, Car. & M. 
 180 ; 2 M. C. C. 240. 
 
 K. and D. were arrested in Eng- 
 land upon Iiish warrants which 
 were not backed in England, and 
 which did not specify with what 
 particular felony they were charged. 
 They were brought before a magis- 
 trate and remanded. When being 
 conveyed Jin a police-van through 
 the streets of Manchester in the 
 daytime, the now prisoners, armed 
 with revolvers, attacked the van, 
 the police-sergeant in charge of it 
 was shot by one of the prisoners, 
 and K. and D. escaped. Upon the 
 trial of the prisoners for wilful mur- 
 der, it was contended that the ar- 
 rest of K. and D. being illegal by 
 reason of the informality of the 
 warrants, the offence committed 
 amounted only to manslaughter : — 
 Held, that in view of the facts that 
 K. and D. had been for some time 
 in custody, that the infoi-mality of 
 the warrants was unknown to the 
 prisoners, and that they deliberate- 
 ly, and with premedilsi?pfei^jf^j 
 
 and carried out the attack which 
 resulted in the death of the police- 
 sergeant, the offence was murder 
 and not manslaughter. Reg. v. 
 Allen, 17 L. T., N. S. 222— Black- 
 bum and Mellor. 
 
 A police-officer is protected if he 
 acts upon a warrant, even though 
 that warrant is informal ; and if he 
 is killed when so acting by a pre- 
 meditated attack, with a view to a 
 rescue, the crime will be murder; 
 the proper course being to apply to 
 a court of law for a habeas corpus 
 to have the prisoner discharged from 
 custody. Ih. 
 
 The defendant was arrested for 
 misdemeanor ; he resisted the appre- 
 hension .and killed the officer : — 
 Held, that it was not murder, the 
 officer not having the warrant for 
 his arrest at the time the arrest was 
 made. Reg. v. Ghapman, 12 Cox, 
 C. C. 4. 
 
 An attempt to arrest for misde- 
 meanor under a warrant is not law- 
 ful, when the officer at the time of 
 the arrest cannot produce the war- 
 rant, lb. 
 
 Suicides.] — He who kills another 
 upon his desire or command, is, in 
 the judgment of the law, as much a 
 murderer as if he had done it mere- 
 ly of his own head. Rex v. Sawyer, 
 1 Russ. C. & M. 670. 
 
 If a man encourages another to 
 murder himself, and is present abet- 
 ting him while he does so, such per- 
 son is guilty of murder as principal. 
 Rex V. Btjson, R. & R. C. C. 523. 
 
 If two encourage each other to 
 murder themselves together, and 
 one does so, but the other fails in 
 the attempt upon himself, he is a 
 principal in the murder of the other. 
 lb. 
 
 But if it is uncertain whether the 
 deceased really killed himself, or 
 whether he came to his death by ac- 
 cident before the moment when he 
 meant to destroy himself, it will not 
 be murder in either. lb. 
 JjcrSs&Ft&^ cannot be tried for in- 
 
334 
 
 MUHDER, MANSLAUGHTER, ETC. 
 
 citing another to commit suicide, 
 although that other commits suicide. 
 JReg. V. Leddington, 9 C. & P. 79 — 
 Alderson. 
 
 If two persons mutually agi-ee to 
 commit suicide together, and the 
 means employed to produce death 
 only take effect on one, the survivor 
 will, in .point of law, be guilty of 
 the murder of the one who died. 
 Reg. V. Alison,?, C. & P. 418— Pat- 
 teson. 
 
 If a woman takes poison -with in- 
 tent to procure a miscarriage, and 
 dies of it, she is guilty of self-mur- 
 der, whether she was quick with 
 child or not ; and a person who fur- 
 nished her with the poison for that 
 purpose, will, if absent when she 
 took it, be an accessory before the 
 fact only. Rex v. JRusseU, 1 M. C. 
 C. 356. 
 
 An attempt to commit suicide is 
 not an attempt to commit murder 
 within 24 & 25 Vict. c. 100, and is 
 not merged in any of the felonious 
 attempts to commit murder made 
 punishable by that act, but remains 
 a misdemeanor at common law tri- 
 able by the court of quarter ses- 
 sions. Reg. V. Burgess, L. & C. 258; 
 9 Cox, C. C. 247 ; 32 L. J., M. C. 
 55; 11 W. R. 96; 7 L. T., N". S. 
 472. 
 
 In Duelling.^ — When, upon a pre- 
 vious agreement, and after there has 
 been time for the blood to cool, two 
 persons meet with deadly weapons, 
 and one of them is killed, the party 
 who occasions the death is guilty of 
 murder, and the seconds also are 
 equally guilty ; and with respect to 
 others shewn to be present, the 
 question is, did they give their aid 
 and assistance by their countenance 
 and encouragement of the principals 
 in the contest ? Mere presence will 
 not be sufficient ; but if they sustain 
 the principals, either by advice or 
 assistance, or go to the ground for 
 the purpose of encouraging and for- 
 warding the unlawful conflict, al- 
 though they do not say or do any- 
 
 thing, yet, if they are present assist- 
 ing and encouraging by their pres- 
 ence at the moment when the fatal 
 shot is fired, they are, in law, guilty 
 of the crime of murder. lieg. v. 
 Young, 8 C. & P. 644— Vaughan 
 and Alderson. 
 
 If A. has formed a deliberate de- 
 sign to kill B., and after this tbey 
 meet and have a quarrel, and many 
 blows pass, and A. kills 13., this will 
 be murder, if the jury is of opinion 
 that the death was in consequence 
 of previous malice, and not of the 
 sudden provocation. Reg. v. Kirh- 
 ham, 8 C. & P. 115— Coleridge. 
 
 The defendant was indicted for 
 murder. The evidence was, the 
 deceased struck the defendant, a 
 reconciliation took place ; the de- 
 fendant going to his home, sudden- 
 ly stops, and by his remarks seems 
 to invite a renewal of the aggres- 
 sion ; the deceased, accepting it as 
 a challenge, went after the prisoner, 
 who stabbed him. If the reconcil- 
 iation was feigned, and the renew- 
 al was for the purpose of using a 
 deadly weapon, there is evidence of 
 implied malice to sustain the charge 
 of murder. Reg. v. Selten, 11 Cox, 
 C. C. 674. 
 
 Where two persons go out to 
 fight a deliberate duel, and death 
 ensues, all persons who are present, 
 encouraging and promoting that 
 death, will be guilty of murder. 
 And the, person who acted as the 
 second of the deceased person in 
 such a duel may be convicted of 
 murder, on an indictment charging 
 him with being present, aiding and 
 abetting the person by whose act 
 the dea;th of his principal was occa- 
 sioned. Reg. V. Cuddy, 1 C. & K. 
 210— Williams and Rolfe. 
 
 2. Manslaughter. 
 
 Statute.]— 'By 24 & 25 Vict. c. 
 100, s. 7, " no punishment or for- 
 " feiture shall be incurred by any 
 " person who shall kill another by 
 " misfortune, or in his own defence, 
 
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MANSLAUGHTER. 
 
 335 
 
 " or in any other manner without 
 " felony." 
 
 By 9 Geo. 4, c. 31, the 1 Jac. 1, c. 
 8, and 3 Geo. 4, c. 38, were repealed, 
 and 24 & 25 Vict. c. 95, s. 1, re- 
 peals 9 Geo. 4, c. 31. 
 
 What is Manslaughttr.] — See L. 
 C. J. Tindal's charge, 5 C. & P. 
 261, n. 
 
 Manslaughter is homicide, not un- 
 der the influence of malice. Rex v. 
 Taylor, 2 Lewin, C. C. 217--Tauii- 
 ton. 
 
 If persons cover another with 
 straw and set fire to it, intending to 
 do him a serious injury, and he dies, 
 it is murder, though they did not 
 intend to kill him. But if they in- 
 tended the act in sport, and merely 
 to frighten him, it is manslaughter. 
 Errington's case, 2 Lewin, C. C. 217 
 — Patteson. 
 
 By the Commission of Negligent or 
 unlawful Acts.l — That which con- 
 stitutes murder when by design, 
 and of malice prepense, constitutes 
 manslaughter, when arising from 
 culpable negligence. Re g.sr. Hughes, 
 Dears. & B. C. G. 248 ; 7 Cox, C. 
 C. 301 ; 3 Jur., N. S. 696 ; 26 L. J., 
 M. C. 202. 
 
 The deceased was with others 
 employed in walling the inside of a 
 shaft. It was the duty of the pris- 
 oner to place a stage over the mouth 
 of the shaft, and the death of the 
 deceased was occasioned by the 
 negligent omission on his part to 
 perform suCh duty. He was con- 
 victed of manslaughter: — Held, that 
 the conviction was right. Ih. 
 
 Although it is manslaughter 
 where the death was the result of 
 the joint negligence of the prisoner 
 and othei's ; yet it must have been 
 the direct result, w-holly or in part, 
 of the prisoner's negligence, and his 
 neglect must have been wholly or 
 in part the proximate and eificient 
 cause of the death, and it is not so 
 where the negligence of some other 
 person has intervened between his 
 
 Reg. V. Ledger, 2 F. & F. 857— 
 Erie. 
 
 A party causing the death of a 
 child, by giving it spirituous liquors 
 in a quantity quite unfit for its ten- 
 der age, is guilty of manslaughter. 
 Rex V. Martin, 3 0. & P. 211— 
 Vaughan. 
 
 A husband seized his wife, a 
 heavy, corpulent woman, and dash- 
 ed her violently on the brick floor 
 of a kitchen, and then struck her 
 with the tongs on her thigh, inflict- 
 ing a severe bruise, but no injury in 
 itself fatal. She languished ten 
 days, during which she, at his de- 
 sire, and in effect driven away by 
 him, sought shelter at a friend's, 
 where, at the end of that time, she 
 died ; he providing no medical aid, 
 and no doctor visiting her until the 
 day before her death, when it was 
 too late. The medical evidence 
 shewed that she was diseased, but 
 that she might have lived for an in- 
 definite period ; and that the effect 
 of the whole of the violence was to 
 hasten her death, by a shock to the 
 nervous system calculated to ag- 
 gravate the disease : — Held, that if 
 this was so he was guilty of man- 
 slaughter. Reg. V. Murton, 3 F. & 
 F. 492— Byles. 
 
 If two or more persons go out 
 together with a purpose to commit 
 a breach of the peace, and, in the 
 course of the accomplishment of that 
 common design, one of them kills a 
 man, the other also is guilty of 
 manslaughter. Reg. v. Harrington, 
 5 Cox, C. C. 231. 
 
 Wherever death ensues from in- 
 juries inflicted by parties engaged 
 in any illegal act, an indictment for 
 manslaughter will lie, even though 
 it appears that the deceased had 
 materially contributed to his death 
 by his own negligence. Reg. v. 
 Longbottom, 3 Cox, C. C. 439 — 
 Rolfe. 
 
 The prisoner was convicted of 
 manslaughter. It appeared that he 
 procured sulphate of potash, and 
 
 act or omission and ^^Mf^^^^^-f^^^^^f^^"^^ '^^®' intending her to 
 
336 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 take it for the purpose of procuring 
 abortion, and that she, believing 
 herself to be pregnant, although in 
 reality she was not, took the sul- 
 phate of potash, in his absence, and 
 died from its effects : — Held, that 
 the conviction was right.. Reg. v. 
 Gaylor, Dears. &, B. C. C. 288 ; 7 
 Cox, C. C. 253. 
 
 If it is the duty of a person, as a 
 ground bailiff of a mine, to cause 
 the mine to be properly ventilated 
 by causing air-headings to be put up 
 where necessary, and by reason of 
 his omission in this respect another 
 is killed by an explosion of fire- 
 damp, such person is guilty of man- 
 slaughter, if by such his omission he 
 was guilty of a want of ordinary 
 and reasonable precaution; and if it 
 was his plain and ordinary duty to 
 have caused an air-heading to have 
 been made, and a man iising reason- 
 able diligence would have done it. 
 Reg. V. Haines, 2 C. & K. 368 — 
 Maule. 
 
 It is no defence in a case of man- 
 slaughter that the death of the de- 
 ceased was caused by the negligence 
 of others as well as by that of the 
 prisoner ; for if the death of the de- 
 ceased is caused partly by the neg- 
 ligence of the prisoner and partly 
 by the negligence of others, the pris- 
 oner and all those others are guilty 
 of manslaughter. li. 
 
 Trustees appointed under a local 
 act for the purpose of repairing 
 roads in a district, with power to 
 contract for executing such repairs, 
 are not chargeable with manslaugh- 
 ter if a person using one of such 
 roads is accidentally killed in conse- 
 quence of the roads being out of re- 
 pair through neglect of the trustees 
 to contract for repairing it. Reg.^. 
 Poeock, 17 Q. B. 34 ; 5 Cox, C. C. 
 172. 
 
 A woman who knows she is to be 
 confined, and who wilfully abstains 
 from taldng the necessary precau- 
 tions to preserve the life of the child 
 after its birth, in consequence of 
 
 which the child dies, is not guilty of 
 manslaughter. Reg. v. Knights, 2 
 F. &^E. 46— Cockburn. 
 
 Generally, it may be laid down, 
 that, where one by his negligence 
 has contributed to the death of an- 
 other, he i^ guilty of manslaughter. 
 Reg. V. SwindaU, 2 C. & K. 230 — 
 Pollock. 
 
 Where a man and his wife are 
 living apart by mutual consent, he 
 granting her a fixed allowance, 
 which is regularly paid, he is not 
 prima facie bound to supply her 
 with shelter ; but if he is made ac- 
 quainted with the fact that she is 
 without shelter, and refuses to pro- 
 vide her with it, in consequence of 
 which her death ensues, semble, 
 that he is guilty of manslaughter. 
 Reg. V. Plummer, 1 C. & K. 600 ; 
 8 Jur. 921— Gurney. 
 
 An iron-founder being employed 
 by an oilman, and a dealer in ma- 
 rine stores to make some cannon, to 
 be used on a day of rejoicing, and 
 afterwards to be put into a sailing- 
 boat ; after one of them had burst, 
 and been returned to him in conse- 
 quence, senj; it back in so indperfect 
 a state, that on being fired it burst 
 again, and lulled a third person : — 
 Held, that the maker was guilty of 
 manslaughter. Rex v. Gairr, 8 C. 
 & P. 163, n. — Bayley, Patteson and 
 Gurney. 
 
 B. was a person who made fire- 
 works, contrary to 9 & 10 Will. 3, c. 
 7. He kept a quantity of combust- 
 ibles at his house, for tBe purpose of 
 his business, as a maker of fireworks; 
 and during his absence, through the 
 negligence of his servants, a fire 
 broke out amongst such combust- 
 ibles, and a rocket becoming thereby 
 ignited flew across a street, setting 
 fire to a house opposite, caused ■ the 
 death of a person therein : — Held, 
 that a conviction of manslaughter 
 was wrong, as the death was not 
 occasioned by the unlawful act of 
 B., but by the negligence of his 
 servants. Reg. v. Bennett, Bell, C. 
 
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MANSLAUGHTER. 
 
 337 
 
 28 L. J., 
 32 L. T. 
 
 C. 1 ; 4 Jur., N. S. 1088 
 M. C. 27 ; 7 W. R. 40 
 110 ; 8 Cox, C. C. 74. 
 
 On an indictment for manslaugh- 
 ter by causing a fire, it is necessary, 
 in order to sustain the case by an 
 exhaustive process of proof, to shew 
 that the fire could not have arisen 
 from any other cause than that 
 charged ; it is necessary to leave no 
 considerable interval of time in 
 which some other cause might have 
 acted. JReg. v. Gardner, 1 F. & 
 F. 669— Bramwell. 
 
 Where A., having a right to the 
 possession of a gun which was in 
 the hands of the deceased, and 
 which he knew to be loaded, at- 
 tempted to take it away by force, 
 and in the struggle which ensued 
 the gun went oiF accidentally and 
 caused the death of the deceased : — 
 Held, that as the death was caused 
 by the discharge of the gun, which 
 was the result of the unlawful act of 
 A., he was guilty of manslaughter. 
 Reg. V. Archer, 1 F. & F. 351 — 
 Campbell. 
 
 Whei-e a butcher employed the 
 deceased, a shepherd boy, to tend 
 some sheep which were penned, and 
 he negligently suffered some of 
 them to escape through the hurdles; 
 and the butcher, upon seeing it, ran 
 towards the boy, and, taking up a 
 stake, which was lying on the 
 ground, threw it at him, and inflict- 
 ed an injury of which he died : — 
 Held, that under the circumstances 
 it was a question for the jury 
 whether it was murder or man- 
 slaughter ; they found the latter. 
 Hex V. Wiggs, 1 Leach, C. C. 379, 
 n. 
 
 A kick "is not a justifiable mode 
 of turning a man out of your house, 
 though he is a trespasser ; there- 
 fore, if it causes death it is man- 
 slaughter. Wild 's case, 2 Lewin, C. 
 C. 214— Alderson.- 
 
 A man is not criminally respons- 
 ible for the death of another party 
 caused by his negligence, where he 
 would not have been civilly liable 
 
 Digitized by Microsoft® 
 
 in an action at the suit of the 
 party injured, if the injuries sus- 
 tained had fallen short of causing 
 his death. Meg. v. BirchaU, 4 F. & 
 F. 1087— Wiirles. 
 
 The private servant of the owner 
 of a tramway crossing a public road 
 was entrusted to watch it: while 4ie 
 was absent from his duty an acci- 
 dent happened, and a person was 
 killed. The private act did not re- 
 quire the owner to watch the tram- 
 way : — Held, that there was no duty 
 between the owner and the public, 
 and, therefore, his servant was not 
 guilty of negligence, so as to make 
 him guilty of manslaughter. Reg. 
 V. Smith, 11 Cox, C. C. 210— Lush. 
 
 A person was indicted for man- 
 slaughter. The evidence was that 
 he struck the deceased twice with a 
 heavy stick, that he afterwards left 
 him asleep by the side of a small 
 fire in a country lane during the 
 whole of a frosty night in the month 
 of January, and the next morning, 
 finding him just alive, put him un- 
 der some straw in a barn,' where his 
 body was found some months after- 
 wards. The jury was directed that 
 if death resulted from the beating 
 or from the exposure during the 
 night in question, such exposure be- 
 ing the result of criminal negligence, 
 or from the prisoner leaving the 
 boy under the straw ill, but not 
 dead, the prisoner was guilty of 
 manslaughter. Reg: v. Martin, 11 
 Cox, C. C. 136— Byles. 
 
 If after a reconciliation, the ag- 
 gressor renews the contest, or at- 
 tempts to do so, and the other hav- 
 ing a deadly weapon about him, on 
 such sudden renewal of the provo- 
 cation, uses it without previous in- 
 tent to do so, there is evidence 
 which may reduce the crime to 
 manslaughter. Reg. v. Selten, 11 
 Cox, C. C. 674. 
 
 Unintentional Acts.~\ — Where a 
 mother, being angry with one of her 
 children, took up a small piece of 
 iron used as a poker, and on his 
 
338 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 running to the door of the room, 
 which was open, threw it after him, 
 and hit another child who hap- 
 pened to be entering the room at 
 themoment, in consequence of which 
 he died : — Held, to be manslaughter, 
 although it appeared the mother 
 had no intention of hitting the child 
 with whom she was angry, and only 
 intended to frighten Ijim. 'Rex v. 
 Conner, 7 C. & P. 438— Parke & 
 Gaselee. 
 
 A lad, as a frolic, without any 
 intention to do any harm to any 
 one, took the trap-stick out of the 
 front part of a cart, in consequence 
 of which it was upset, and the oar- 
 man who was in it, putting in a 
 sack of potatoes, was pitched back- 
 wards on the stones and killed : — 
 Held, that the lad was guilty of 
 manslaughter. M&x v. Sullivan, 7 
 C. & P. 641 — Gurney and Wil- 
 liams. 
 
 A drunken man went into a shop, 
 and in a joke seized a boy round 
 the neck, and began spinning him 
 round imtil ' they got together into 
 the street. The boy having at 
 length broken away, the prisoner, 
 in consequence, staggered into the 
 road and fell against a woman who 
 was passing, knocked her down : 
 she shortly after died of the in- 
 juries which she had received. The 
 boy made no resistance to the pris- 
 oner's treatment of him, believipg 
 that it was merely done in play : — 
 Held, that there was no evidence of 
 manslaughter. lieg. v. Bruce, 2 
 Cox, C. C. 262. 
 
 In course of Scuffles and Alter- 
 'cations.'\ — The killing a person in 
 an aifray, by another who was in a 
 violent heat and passion at the time, 
 will not amount to murder, but 
 manslaughter. Rex v. Rankin, R. 
 & R. C. C. 43. 
 
 If, on a sudden quarrel between 
 two parties of keelmen and soldiers, 
 a blow intended for an individual 
 of one party would, if death en- 
 sued, have amounted only to man- 
 
 slaughter; it will be manslaughter 
 though by accident it kills another. 
 Rex V. Brown, 1 Leach, C. C. 148 ; 
 1 East, P. C. 231, 245, 274. 
 
 If, on any sudden quarrel, blows 
 pass without any intention to kill 
 or injure any one materially, and in 
 the course of the scuffle, after the 
 parties are heated by the contest, 
 one kills the other with a deadly 
 weapon, it is only manslaughter. 
 Rex v. Snmo, 1 Leach, C. C. 151 ; 
 
 1 East, 244. And see Rex v. Tay- 
 lor, Burr. 2793. 
 
 If a person receives a blow, and 
 immediately avenges it with any 
 instrument he may happen to have 
 in his hand, and death ensues, this 
 will be only manslaughter, provided 
 the fatal blow is to be attributed to 
 the passion of anger arising from 
 the previous provocation. Rex v. 
 Thonms, 7 C. & P. 817— Parke. 
 
 It is not every slight provoca- 
 tion, even by a blow, which will, 
 when the party receiving it strikes 
 with a deadly weapon and death 
 ensues, reduce the crime from mur- 
 der to manslaughter. Rex v. Lynch, 
 5 C. & P. 324. 
 
 The prisoner having, after a tri- 
 fling and casual altercation^ sus- 
 tained several blows from the de- 
 ceased (a stranger to him) , instantly 
 stabbed him with a clasp knife he 
 had about him : — Held, that it was 
 for the jury, whether or not the 
 blow was struck in the heat of 
 sudden passion, without previous 
 malice, so as to reduce the ofience 
 to manslaughter. Reg. v. Ea-gle, 
 
 2 P. & F. 827— Erie. 
 
 Where one having had his pocket 
 picked, seized the offender, and, 
 being encouraged by a cencourse of 
 people, threw him into an adjoining 
 pond by way of avenging the theft 
 by duelling him, but without any 
 apparent intention of taking away 
 his life, and the pickpocket was 
 drowned : — Held, that it only 
 amounted to manslaughter. Rex 
 V. Fray, 1 East, P. C. 236. 
 
 When two or more, one of 
 
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MANSLAUGHTER. 
 
 339 
 
 whom has received the provoca- 
 tion of a blow, are charged with 
 murder, and one of them has re- 
 ceived a provocation, (as a blow) 
 which would reduce homicide to 
 manslaughter, and it cannot be 
 proved which of them inilicted the 
 fatal blow, neither of them can be 
 convicted of murder, without a 
 proof of a common design to in- 
 llict the homicidal act ; nor of man- 
 slaughter, without proof of a com- 
 mon design to inflict unlawful vio- 
 lence. Meg. V. Turner, 4 F. & F. 
 339— Channell. 
 
 In course of ^ghtinff.] — All 
 persons who even by their presence 
 encourage a fight, from which death 
 ensues to one of the combatants, 
 although they neither say ndr do 
 anything, are guilty of manslaugh- 
 ter. But if the death is caused, 
 not by blows given in the fight 
 itself, but by other parties breaking 
 the ring and striking the deceased 
 with bludgeons, the persons who 
 merely encouraged the fight by 
 their presence are not answerable. 
 Bex V. Murphy, 6 C. & P. 103 
 — Littledale and Bolland. 
 
 A. was fighting with his brother; 
 and, to prevent this, B. laid hold of 
 A., and held him down upon a 
 locker on board the barge in which 
 they were, but struck no blow. A. 
 stabbed B.:— Held, that if B. did 
 nothing more than was suflicient 
 to prevent A. from beating his 
 brother, and had died of this stab, 
 the offence of A. would have been 
 murder ; but that if B. did more 
 than was necessary to prevent the 
 beating of A.'s brother, it would 
 have been manslaughter only. Hex 
 V. Bourne, 5 C. & P. 120 — Gaselee 
 and Parke. 
 
 If, after an interchange of blows 
 on equal temis, one of the parties, 
 on a sudden and without any such 
 intention at the commencement of 
 the aifray, snatches up a deadly 
 weapon and kills the other party 
 with it, such killing will only 
 
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 amount to manslaughter. Bex v. 
 Anderson, 1 Russ. C. & M. 731— 
 Bayley. 
 
 But if a party, under colour of 
 fighting upon equal terms, uses 
 from the beginning of the contest a 
 deadly weapon without the knowl- 
 edge of the other party, whom he 
 kills with such weapon ; or if at 
 the beginning of the contest he pre- 
 pares a deadly weapon, so as to 
 have the power of using it in some 
 part of the contest, and accordingly 
 does so and kills the other party; 
 the killing in both these cases will 
 be murder. Bex v. Whiteley, 1 
 Lewin, C. C. 173— Bayley. 
 
 Where there had been mutual 
 blows, and then, upon one of the 
 parties being pushed down on the 
 ground, the other stamped upon his 
 stomach and belly with great force, 
 and thereby killed him, it was con- 
 sidered only to be manslaughter. 
 Bex V. Ayes, R. &, R. C. C. 166. 
 But in Bex v. Thorpe, 1 Lewin, C. 
 C, 171, Bayley, J., intimated that 
 death caused by up-and-down-fight- 
 ing would be murder. 
 
 If two persons quarrel and be- 
 gin to fight on equal terms, where 
 one, finding himself not equal to 
 his adversary, runs away, and be- 
 ing pursued, draws his knife, and, 
 when overtaken by his adversary, 
 stabs him ; if death ensues, this 
 would be only manslaughter ; but 
 if, before the conflict began, the 
 party had drawn his knife in cool 
 blood, in case death had ensued, 
 the offence would have been mur- 
 der. Bex V. Kessal, 1 G. & P. 437 
 —Park. 
 
 By Soldiers in the Exercim of 
 their Profession.'] — A gun dis- 
 charged in the ordinary and regu- 
 lar course of ball practice by an 
 artilleryman in a garrison town, 
 missed the mark, and killed a man 
 who was lawfully passing near the 
 spot in a boat, the place being a 
 public one, and open to all her 
 Majesty's subjects. The artillery- 
 
340 
 
 MURDER, MANSLAUGHTDR, ETC. 
 
 man who fired the gun was acting 
 und.e(- the command of a superior 
 officer, who was acting in obedi- 
 ence to the general orders of the 
 major-genei;al : — Held, that the 
 major -general was not guilty of 
 manslaughter. Reg. v. Hutchin- 
 son, 9 Cox, C. C. 555 — Byles. But 
 see 3 Russ. C. & M. 660. 
 
 In Arrestinff wider Process of 
 Lawi] — Attempting illegally to ar- 
 rest a man is sufficient to reduce 
 killing the person making the at- 
 tempt to manslaughter, though the 
 arrest was not actually made, and 
 though the j)i"isoner had armed 
 himself with a deadly weapon to 
 resist such attempt, if the prisoner 
 was in such a situation that he 
 could not have escaped from the 
 arrest ; and it is not necessary that 
 he should have given warning to 
 the person attempting to arrest him 
 before he struck the blow. JRex v. 
 Thompson, 1 M. C. C. 80. 
 
 If a constable takes a man with- 
 out warrant upon a charge which 
 gives him no authority to do so, 
 and the prisoner runs away and is 
 pui-sued by J. S., who was with 
 the constable all the time, and 
 charged by him to assist, and the 
 man kills J. S. to prevent his re- 
 taking him, it will not be murder, 
 but manslaughter only ; because, if 
 the original arrest was illegal, the 
 recaption would have been so like- 
 wise. Hex V. Gurvan, 1 M. C. C. 
 132. 
 
 Where a common soldier stabbed 
 a Serjeant in the same regiment 
 who had arrested him for some 
 alleged misdemeanor : — Held, that 
 as the articles of war were not pro- 
 duced, by which the arrest might 
 have been justified, it was only 
 manslaughter, as no authority ap- 
 peared for the arrest. Hex v. 
 Whithers, 1 East, P. C. 295, 360. 
 
 Two private watchmen, seeing 
 the prisoner and another person 
 with two carts laden with apples, 
 went up to them, intending, as soon 
 
 as they could get assistance, to se- 
 cure them ; one of the watchmen 
 walked beside the prisoner, and the 
 other watchman beside the other 
 person, at some distance from the 
 prisoner. The other person wound- 
 ed the watchman who was near 
 him : — Held, that the prisoner could 
 not be convicted of this wounding, 
 unless the jury should be satisfied 
 that the prisoner and the other 
 person had not only gone out with 
 a common purpose of stealing ap- 
 ples, but also had the common pur- 
 pose of resisting, with extreme 
 violence, any person who might 
 attempt to apprehend them. Hex 
 V. Gollism, 4 C. & P. 565— Gar- 
 row. 
 
 A warrant leaving a blank for 
 the christian name of the person to 
 be apprehended, and giving no rea- 
 son for omitting it, but describing 
 him only as the son of J. S. L., (it 
 appeared that J. S. L. had four 
 sons, all living in his house), and 
 stating the charge to be for assault- 
 ing A., without particularizing the 
 time, place, or any other circum- 
 stances of the assault, is too gen- 
 eral and unspecific. A resistance 
 to an arrest thereon, and killing the 
 person attempting to execute it, 
 will not be murder. Rex v. Hood, 
 1 M. C. C. 281 ; 8. P. Hoye v. 
 Bush, 2 Scott, N. R. 85 ; 1 M. & 
 G. 775 ; 1 Drink. 15. 
 
 If a servant of A. (who is not 
 lord of the manor) finds a night 
 poacher on the lands of B., and 
 pursues him with intent to take 
 him, this is such an attempt at an 
 illegal arrest, that if the poacher 
 shoots the servant with the gun 
 which he has in his hand, and kills 
 him, this will be manslaughter only. 
 Rex V. Davis, 7 C. & P. 785— 
 Parke. 
 
 A constable, having a warrant 
 to apprehend A., gave it to his son, 
 who, in attempting to arrest A., 
 was stabbed by him with a knife 
 which A. happened to have in his 
 hand at the time, the constable 
 
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MANSLAUGHTER. 
 
 341 
 
 then being in sight, hut a quarter 
 of a mile off :— Held, that his arrest 
 was illegal; and that, if death had 
 ensued, this would have been man- 
 slaughter only, unless it was shewn 
 that A. had prepared the knife be- 
 forehand to resist the illegal vio- 
 lence. Eex V. Patience, 7 t). & P. 
 775 -Parke. 
 
 In Driving Carriages or Horses.'] 
 — If a person is driving a cart at 
 an unusually rapid pace, and drives 
 over another and kills him, he , is 
 guilty of manslaughter, though, he 
 called to the deceased to get out of 
 the way, and he might have done 
 so, if he had not been in a state of 
 intoxication. Hex v. Walker, 1 C. 
 & P. 320— Garrow. 
 
 A foot passenger walking at 
 lamplight in the carriage road 
 along a public highway, when the 
 owner of a cart, who was proved 
 to be near-sighted, drove along at 
 the rate of eight or nine miles an 
 hour, sitting at the time on a few 
 sacks laid on the bottom of the 
 cart, and ran over the foot passen- 
 ger and killed him : — Held, that he 
 was guilty of such carelessness as 
 amounted to the crime of man- 
 slaughter. Rex V. Gfrout, 6 C. & 
 P. &-29. 
 
 If the driver of a carriage is 
 racing with another carriage, and, 
 from being unable to pull up his 
 horses in time, the first-inentioned 
 carriage is upset, and a person 
 thrown off it and killed, this is 
 manslaughter in the driver of the 
 can-iage. Hex v. Timmins, 7 G. 
 & P. 499— Patteson. 
 
 If A. and B. are riding fast along 
 a highway, as if racing, and A. 
 rides by without doing any mis- 
 chief, but B. rides against the horse 
 of C, whereby C. is thrown and 
 killed ; this is not manslaughter in 
 A. Jiex V. Mastin, 6 C. & P. 896 
 — ^Patteson. 
 
 If each of two persons is driving 
 a cart at a dangerous and a furious 
 rate, and they are inviting each 
 
 other to drive at a dangerous and 
 a furious rate along a turnpike 
 road, and one of the carts runs 
 over a man and kills him, each of 
 the two persons is guilty of man- 
 slaughter ; and it is no ground of 
 defence that the death was partly 
 caused by the negligence of the 
 deceased himself, or that he was 
 either deaf or dumb at the time. 
 Heg. V. Swindall, 2 C. & K. 230 : 
 2 Cox, C. C. 141— Pollock. 
 
 A driver of a spring-cart, stand- 
 ing in the cart and driving along a 
 public road without reins, but not 
 driving furiously, when a child runs 
 across the road before the cart, and 
 is lulled by the wheel passing over 
 it, is not guilty of manslaughter, 
 unless he could have saved the life 
 of the child if he had been driving 
 with the reins in his hand. Reg. v. 
 Dalloway, 2 Cox, C. C. 273. 
 
 If the driver of a conveyance 
 uses all reasonable care and dili- 
 gence, and an accident happens 
 through some chance which he 
 could not foresee or avoid, he is 
 not to be held liable for the results 
 of such accident. Reg. v. Murray, 
 5 Cox, C. C. 509. 
 
 The fact that streets are usually 
 crowded from any public proces- 
 sion, or other cause, instead of ex- 
 cusing a driver wlien proceeding at 
 his ordinary pace, and with ordi- 
 nary care, requires him to be par- 
 ticularly cautious, and may tend to 
 render him criminally answerable 
 for any accidents ensuing from driv- 
 ing at a rate, and with those pre- 
 cautions, which he might have ordi- 
 narily observed. lb. 
 
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 By letting loose Vicious 
 mais.] — A man who having a horse, 
 which he knows to be vicious and 
 dangerous, turns it out upon a com- 
 mon through which, to his knowl- 
 edge, pass much-frequented public 
 footpaths, which are not fenced off, 
 is guilty of culpable negligence, 
 and if the horse kills any one pass- 
 ing over the common, he may be 
 
342 
 
 MUKDER, MAliirSLAFGHTER, ETC. 
 
 convicted of manslaughter ; nor is 
 it any defence that the deceased 
 had strayed from the way, where 
 he is still so near it that the jury 
 cannot say whether he is on or off 
 the path. Req. v. Dant, L. & C. 
 567 ; 10 Cox,'C. C. 102 ; 11 Jur., 
 N. S. 549 ; 34 L. J., M. C. 119 ; 13 
 W. R. 6G3 ; 12 L. T., N. S. 396. 
 
 In Navigating Vesselsi\ — Those 
 who navigate the river Thames im- 
 properly, either by too much speed 
 or by negligent conduct, are as 
 much liable, if death ensues, as 
 those who cause it on a public high- 
 way on land, either by furious driv- 
 ing or by neghgent conduct. Req. 
 V. Taylor^ 9 C. & P. 672— Parke.' 
 
 To make the captain of a steam 
 vessel guilty of manslaughter, in 
 causing a person to be drowned by 
 running down a boat, the prosecu- 
 tor must show some act done by the 
 captain ; and a mere omission on 
 his part, in not doing the whole of 
 his duty, is insufficient. Rex v. 
 Green, 7 C. & P. 156— Park and 
 Alderson. 
 
 But if there is sufficient light, and 
 the captain of a steamer is either at 
 the helm or in a situation to be giv- 
 ing the command, and does that 
 wMch causes the injury, he is guilty 
 of manslaughter. Ih. 
 
 The captain and pilot of a steam 
 boat were both indicted for the 
 manslaughter of a person who was 
 on board of a smack, by running 
 the smack down. The running 
 down was attributed on the part of 
 the prosecution, to improper steer- 
 age of the steam boat, arising from 
 there not being a man at the bow 
 to keep a look-out at the time of 
 the accident. It was proved that 
 there was a man on the look-out 
 when the vessel started, about an 
 hour previously. According to one 
 witness, the captain and pilot were 
 both on the bridge between the 
 paddle-boxes ; according to another, 
 the pilot was alone on the paddle- 
 box : — Held, that there was not 
 
 such personal misconduct on the 
 part of either as to make them guil- 
 ty of felony. Rex v. Mien, 1 Qi. & 
 P. 153 — Park and Alderson. 
 
 Persons on board a ship are nec- 
 essarily subject to something like 
 a despotic government, and it is ex- 
 tremely important that the law 
 should regulate the conduct of those 
 who exercise . dominion over them. 
 Reg. V. Leggett, 8 C. & P. 191— 
 Alderson, Williams, and Coltman. 
 
 Therefore, in a case of manslaugh- 
 ter against the captain and the 
 mate of a vessel for accelera!ting the 
 death of a seaman, really in ill 
 health, but who, they alleged, they 
 believed to be a skulker, the ques- 
 tion will be in determining whether 
 it is a slight or an aggravated case, 
 whether the phenomena of the death 
 were such as would excite the at- 
 tention of reasonable and humane 
 men ; and in such a case, if the de- 
 ceased is taken on board after he 
 was discharged from an hospital, it 
 is important to inquire whether he 
 was sent on board by the sui^eon 
 of the hospital, as a person in a fit 
 state of health to perform the duties 
 of a seaman. Ih. 
 
 A. being on board a ship, and B. 
 in a boat alongside, they had a dis- 
 pute about the payment for some 
 goods, both being intoxicated. A., 
 to get rid of B., pushed away the 
 boat with his foot ; B. reaching out, 
 to lay hold of a barge, to prevent 
 his boat from drifting away, over- 
 balanced himself, and fell into the 
 water and was drowned. A. was 
 charged with manslaughter : — Held, 
 that these facts did not constitute 
 that offence. Rex v. Waters, 6 C. 
 & P. 328— Park and Patteson. 
 
 JBy Railway Policemen.] — In an 
 indictment for manslaughter by 
 neglect to give a pi'oper signal to 
 denote the obstruction of a line of 
 railway, whereby a collision took 
 place and a passenger was killed : 
 it was charged that the prisoner's 
 duty was to attend to the proper 
 
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MANSLAUGHTER, 
 
 343 
 
 working of the signals according to 
 the rules : — Held, that it was not 
 necessary to set out the rules. Reg. 
 V. Pargeter, 3 Cox, C. C. 191. 
 
 An averment that it was the pris- 
 oner's duty to signal an obstruction, 
 and that there was an obstruction 
 which the prisoner neglected to sig- 
 nal, was a sufficient description of 
 the offence. Ih. 
 
 A coTint chai'ging both a neglect 
 to give the night signal' and the giv- 
 ing of a wrong signal, is not bad for 
 duplicity. lb. 
 
 It is sufficient to charge that the 
 1 prisoner neglected and omitted to 
 alter the signal, without statingmore 
 particularly which was the specific 
 alteration which he neglected to 
 make. Ih. 
 
 In Conduct and Management of 
 Steam Engines and Railway Trains^ 
 — An act of omission, as well as of 
 commission, may be so. criminal as 
 to be the subject of an indictment 
 for manslaughter. Reg. v. Lowe., 3 
 C. & K. 123 ; 4 Cox, C. C. 449 — 
 Campbell. 
 
 Where a man, appointed to su- 
 perintend a steam-engine employed 
 in a colliery for the purpose of rais- 
 ing colliers from the pits, left the 
 engine in the charge of an ignorant 
 boy, who told him that he was un- 
 able to manage it, and in the ab- 
 sence of the engineer a man was 
 drawn up, who was killed from the 
 want of skill in the boy to manage 
 the engine : — Held, that this was 
 manslaughter in the engineer. Ih. 
 
 Where an engineer who had 
 charge of an engine which was 
 worked for the purpose of keeping 
 up a supply of pure air in a mine 
 neglected his duty, so that the en- 
 gine stopped, and the mine there- 
 by became charged with foul air, 
 which afterwards exploded and 
 caused the death of one of the min- 
 ers : — Held, that the engineer 
 could not . be convicted of man- 
 slaughter on an indictment which 
 did not allege a duty in him which 
 
 he had neglected to perforai. Reg. 
 V. Barrett, 2 C. & K. 343— Wight- 
 man. 
 
 An explosion having occurred on 
 board a steamer, whereby one of 
 three persons in charge of her was 
 killed, the circumstance that the 
 valves were out of order is not suf- 
 ficient to make out, against either 
 or both of them (one being the mas- 
 ter and the other engineer), a case 
 of such culpable negligence as would 
 sustain a charge of manslaughter. 
 Reg. V. Gregory, 2 F. & F. 153 — 
 Hill. 
 
 A party having the charge of a 
 steam-engine, stopped it and went 
 away ; another party came and set 
 it in motion, whereby a person was 
 killed : — Held, that the party who 
 went away was not the party by 
 whose negligence the death was 
 caused, and therefore- he was not 
 guilty of manslaughter. Hilton's 
 case, 2 Lewin, C. C. 214 — Alderson. 
 
 On an indictment against an en- 
 gine-driver and a fireman of a rail- 
 way train, for the manslaughter of 
 persons killed while traveling in a 
 preceding train, by the prisoners' 
 train running into it, it appeared 
 that on the day in question special 
 instructions had been issued to them, 
 which in some respects differed 
 from the general rules and regula- 
 tions, and altered the signal for 
 danger, so as to make it mean not 
 " stop," but "proceed with caution;" 
 that the trains were started by the 
 superior officers of the company ir- 
 regularly, at intervals of about five 
 minutes ; that the preceding train 
 had stopped for three minutes, with- 
 out any notice to the prisoners ex- 
 cept the signal for caution ; and 
 that their train was being driven at 
 an excessive rate of speed j and 
 that then they did not slacken im- 
 mediately on perceiving the signal, 
 but almost immediately, and that 
 as soon as they saw the preceding 
 train they did their best to stop, but 
 without effect : — Held, first, that 
 the special rules, so far as not con. 
 
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344 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 sistent with the general rules, super- 
 seded them. Reg. v. Trainer, 4 F. 
 & F. 105— Willes. 
 
 Held, secondly, that if the pris- 
 oners honestly believed they were 
 observing them, and they were not 
 obviously illegal, they were not 
 criminally responsible. Ih. 
 
 Held, thirdly, that the fireman, 
 being bound to obey the directions 
 of the engine-driver, and, so far as 
 appeared, having done so, there was 
 no case against him. Ih. 
 
 Where a fatal railway accident 
 had been caused by the train run- 
 ning off the line, at a spot where 
 rails had been taken up, without al- 
 lowing sufficient time to replace 
 them, and also without giving suf- 
 ficient or, at all events, effective 
 warning to the engine-driver ; and 
 it was the duty of the foreman of 
 plate-layers to direct when the work 
 should be done, and also to direct 
 effective signals to be given : — 
 Held, that though he was under the 
 general control of an inspector of 
 the district, the inspector was not 
 Uable, but that the foreman was, 
 assuming his negligence to have 
 been a material and a substantial 
 cause of the accident, even al- 
 though there had also been negli- 
 gence on the part of the engine- 
 driver in not keeping a sufiicient 
 look-out. Reg. v. Benge, 4 F. & 
 F. 504— Pigott. 
 
 Upon a trial for manslaughter, 
 it appeared that the prisoner was 
 the driver and the deceased was 
 the fireman of a steam-engine on 
 a railway, and that the death of 
 the latter was caused by the en- 
 gine coming into collision with a 
 train standing on the same line of 
 rails, owing to a neglect on the 
 part of the person in charge of the 
 engine to keep a sufiicient look-out. 
 There was evidence that it was the 
 duty of the prisoner, or of the de- 
 ceased, to keep the look-out, but 
 there was no evidence as to whom 
 of the two was charged with the 
 duty at the time of the collision :— 
 
 Held, that the prisoner was entitled 
 to an acquittal. Reg. v. Gray, 4 
 P. & F. 1098— Willes. 
 
 When a collision occurs on a rail- 
 way, and death is caused, the per- 
 son responsible is the man actually 
 in charge of the engine, and whose 
 negligence caused the accident at 
 the time of the collision. Req. v. 
 Birchall, 4 F. & F. 1087— Willes. 
 
 By Medical Practitioners and 
 Quacks.'] — If a person, bona fide 
 and honestly exercising his best skill 
 to . cure a patient, performs an op- 
 eration which causes the patient's 
 death, he is not guilty of man- 
 slaughter; and it makes no differ- 
 ence whether such person is a reg- 
 ular surgeon or not, nor whether he 
 has had a regular medical education 
 or not. Rex v. Van Butchell, 3 C 
 & P. 629— HuUock and Littledale. 
 
 A person in the habit of acting as 
 a man midwife, tearing away part 
 of the prolapsed uterus of one of his 
 patients, supposing it to be a part of 
 the placenta, by means of which the 
 patient dies, he is not indictable for 
 manslaughter, unless he is guilty of 
 criminal misconduct arising either 
 from the grossest ignorance or from 
 the most criminal inattention. Rex 
 V. Williamson, 3 C. & P. 635— El- 
 lenborough. 
 
 A person acting as a medical 
 man, whether licensed or unlicensed, 
 is not criminally responsible for the 
 death of a patient, occasioned by 
 his treatment, unless his" conduct is 
 characterized either by gross ignor- 
 ance of his art, or by gross inatten- 
 tion to his patient's safety. Rex v. 
 St. John Long, 4 C. & P. 398 — 
 Park and Garrow. 
 
 Where a person, undertaking the 
 cure of a disease (whether he has 
 received a medical education or 
 not), is guilty of gross negligence in 
 attending his patient after he has 
 applied a remedy, or of gross rash- 
 ness in the application of it, and 
 death ensues in consequence of 
 either, he is liable to be convicted 
 
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MANSLAUGHTER. 
 
 345 
 
 of manslaughter. Hex v. St. John 
 Long, 4 C. & P. 423— Bayley, Bol- 
 land and Bosanquet. • 
 
 Where a person, grossly ignorant 
 of medicine, administers a danger- 
 ous remedy to one labouring under 
 a disease, proper medical assistance 
 being at the time procurable, and 
 that dangerous remedy causes death, 
 the person so administering it is 
 guilty of manslaughter. Sex v. 
 Webb, 1 M. & Rob. 405 ; 2 Lewin, 
 C. C. 196— Lyndhurst. 
 
 If a medical man, though lawful- 
 ly qualified to practise as such, 
 causes the death of a person by the 
 grossly unskillful, or the grossly in- 
 cautious use of a dangerous instru- 
 ment, he is guilty of manslaughter. 
 Seff. r. Spilling, 2 M. & Rob. 107 
 — Coleridge. 
 
 Any person, whether a licensed 
 medical practitioner or not, who 
 deals with the life or health of any 
 of his Majesty's subjects, is bound 
 to have competent skill ; and is 
 bound to treat his or her patients 
 with care, attention and assiduity ; 
 and if a patient dies for want of 
 either, the person is guilty of man- 
 slaughter. Hex V. SpiUer, 5 C. & 
 P. 333 — BoUand and Bosanquet. 
 See Rex v. Simpson, 1 Lewin, C. C. 
 172 ; Rex V. Ferguson, 1 Lewin, C. 
 C. 181. 
 
 The application by an ignorant 
 person of a corrosive sublimate 
 which caused death, is evidence for 
 the jury on an indictment for man- 
 slaughter, the question being, under 
 all the circumstances, whether he 
 acted with criminal inattention and 
 carelessness. Reg. v. Crook, 1 F. 
 & F. 521— Watson. 
 
 Where a person, not a regular 
 practitioner, administers lobelia, a 
 dangerous medicine, which produces 
 death, the question for the jury is, 
 under all the circumstances, wheth- 
 er he has acted so rashly and care- 
 lessly as to cause the death. Reg. 
 V. Crick, 1 F. & F. 519— Pollock. 
 
 On an indictment for manslaugh- 
 
 ter' by reason of gross Qegligence I ter against a medical man 
 
 and ignorance in surgical treatment, 
 neither on the one side nor the other 
 can evidence be gone into of former 
 cases treated by the prisoner, but 
 witnesses may be asked causa scien- 
 tise their opinion as to his skill. 
 Reg. V. Whitehead, 3 C. & K. 202 
 — Maule. 
 
 An indictment against a medical 
 practitioner charged that he made 
 divers assaults on the deceased, a 
 patient, and applied wet cloths to 
 his body, and caused him to be put 
 in baths : — Held, that this was a 
 proper mode of laying the ofi'ence, 
 although all that was done was by 
 the consent of the deceased ; and 
 that the indictment need not charge 
 an undertaking to perform a cure, 
 and a felonious breach of duty. 
 Reg. V. Ellis, 2 C. & K. 470— Tin- 
 dal and Rolfe. 
 
 A mistake on the part of a chem- 
 ist in putting a poisonous liniment 
 into a medicine bottle, instead of a 
 liniment bottle, in consequence of 
 which the liniment was taken by 
 his customer internally, with fatal 
 results, the mistake being made un- 
 der the circumstances which rather 
 threw the prisoner off his guard, 
 does not amount to such criminal 
 negligence as will warrant a convic- 
 tion for manslaughter. Reg- v. 
 Noakes, 4 F. & F. 920— Erie. 
 
 A medical man, who administer- 
 ed to his mother, for some disease, 
 prussic acid, of which she almost 
 immediately died, is not guilty of 
 manslaughter, it not appearing dis- 
 tinctly what the quantity was which 
 he had administered, or what quan- 
 tity would be too great to be ad- 
 ministered with safety to life. Reg. 
 V. Bidl, 2 F. & F. 201— Cockburn. 
 
 An unskilled practitioner who 
 ventures to prescribe dangerous 
 medicines, of the use of which he 
 is ignorant, that is culpable rash- 
 ness, for which he will be responsi- 
 ble. Reg. V. Markuss, 4 F. & F. 
 356— Willes. 
 
 On an indictment for manslaugh- 
 for ad- 
 
346 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 ministering poison by mistake for 
 some other drug, the prosecution 
 is bound to shew that the poison 
 got into the mixture in consequence 
 of his gross negligence, and it is 
 not sufficient to shew merely 
 that the prisoner, who dispensed 
 his own drugs, supplied a mixture 
 which contained a large quantity of 
 poison. The jury must be satisfied 
 that there was gross and culpable 
 negligence as would shew an evil 
 mind. Reg. v. Spencer, 10 Cox, C. 
 C. 525— Willes. 
 
 There must be a competent knowl- 
 edge and care in dealing with a 
 dangerous drug. If a person is ig- 
 norant of the nature of the drug he 
 uses, or is guilty of gross want of 
 care in the use of it, he will be crim- 
 inally responsible for the conse- 
 quences. Reg. V. Ohamherlain, 10 
 Cox, C. C. 486— Blackburn. 
 
 A person, professing himself to be 
 a herbalist, administered ar.senical 
 ointment to a woman having a 
 tumour, of which she died. He 
 gave her no caution or directions as 
 to the use of it. The judge directed 
 the jury, that if he administered the 
 arsenic without knowing or taking 
 the pains to find out what its efiects 
 would be ; or if, knowing this, he 
 gave it to the deceased to be used 
 by her without giving her adequate 
 directions as to its use, he would be 
 guilty of culpable negligence, and 
 therefore of manslaughter. lb. 
 
 In the Course of Authoritative 
 Ghastisement. ] — A schoolmaster 
 who, on the second day of a boy's 
 return to school, wrote to his parent, 
 proposing to beat him severely, in 
 order to subdue his alleged obstin- 
 acy, and on receiving the father's 
 reply, assenting thereto, beat the 
 boy for two hours and a half secret- 
 ly in the night, and with a thick 
 stick, until he died, is guilty of 
 manslaughter. Reg. v. Bbphy, 2 
 P. & F. 202— Cockbum. 
 
 If a father beats his son for theft 
 so severely with a rope that he dies, 
 
 it is only manslaughter. Anon., 1 
 East P. C. 261. 
 
 Where a person in loco parentis 
 inflicts corporal punishment on a 
 child, and compels it to work for 
 an unreasonable number of hours, 
 and beyond its strength, and the 
 child dies, the death being of con- 
 sumption, but hastened by the ill- 
 treatment, it will not be murder, 
 but only manslaughter in the per- 
 son inflicting the punishment, al- 
 though it was cruel and excessive, 
 and accompanied by violent and 
 threatening language ; if such per- 
 son believed that the child was 
 shamming illness, and was really 
 able to do the quantity of work re- 
 quired. Rex V. Gheeseman, 7 C. 
 & p. 455— Vaughan. 
 
 3. Abroad and at Sea. 
 
 By 24 & 25 Vict. c. 100 s. 9, 
 " where any murder or manslaugh- 
 " ter shall be committed on land 
 " out of the United Kingdom, 
 " whether within the Queen's do- 
 " minions or without, and whether 
 " the person killed were a subject 
 " of her Majesty or not, every of- 
 " fence committed by any subject 
 "of her Majesty in respect of any 
 " such case, whether the same shall 
 " amount to the ofience of murder 
 " or of manslaughter, or of being ac- 
 " cessory to murder or mauslaugh- 
 " ter, may be dealt with, inquired 
 " of, tried, determined and pun- 
 " ished in any county or place 
 "in England or Ireland in which 
 " such person shall be appre- 
 " hended or be in custody, in the 
 " same manner in all respects as if 
 " such ofience had been actually 
 " committed in that county or place : 
 " provided that nothing herein con- 
 " tained shall prevent any person 
 " from being tried in any place out 
 " of England or Ireland for any 
 " murder or manslaughter commit- 
 " ted out of England or Ireland, in 
 " the same manner as such person 
 " might have been tried before the 
 " passing of this act." {Former 
 
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ABROAD OR AT SEA. 
 
 347 
 
 provision, 9 Geo. 4, c. 31, s.7,wAicA 
 repealed 33 Hen. 8, c. 23, and 43 
 Geo. 3, c. 113, on this subject.) 
 
 By s. 10, " where any person, 
 " being feloniously stricken, poison- 
 " ed or otherwise hurt upon the sea 
 " or at any place out of England or 
 " Ireland, shall die of such stroke, 
 " poisoning or hurt in England or 
 " Ireland, or, being feloniously 
 " stricken, poisoned or otherwise 
 " hurt at any place in England or 
 " Ireland, shall die of such stroke, 
 " poisoning or hurt upon the seay or 
 " at any place out of England or 
 " Ireland, every offence committed 
 " in respect of any such case, wheth- 
 " er the same shall amount to the 
 " oifence of murder or of man- 
 " slaughter, or of being accessory to 
 " murder' or manslaughter, may be 
 " dealt with, inquired of, tried, de- 
 " termined and punished in the 
 " county or place in England or 
 " Ireland in which such death stroke, 
 " poisoning or hurt shall happen, in 
 " the same manner in all respects 
 " as if such offence had been wholly 
 " committed in that county or 
 " place." [Former provision, 9 Geo. 
 4, c. 31, s. 8.) 
 
 By 23 & 24 Vict. c. 122, " power 
 " is conferred on colonial legisla- 
 " tures to pass coiTesponding enact- 
 " ments." 
 
 Semble, that where guns are fired 
 by one vessel at another vessel, and 
 those on board her generally, those 
 guns are to be considered as shot at 
 each individual on board her. Jtex 
 V. Bailey ^U. & R. C. C. 1. 
 
 A manslaughter committed in 
 China by an alien enemy who had 
 been a prisoner of war, and was 
 then acting as a mariner on board 
 an English merchant ship, could 
 not be tried here under a commis- 
 sion issued in pursuance of 33 Hen. 
 8,c. 23, and 43 Geo. 3, c. 113,8.36. 
 Rex V. Depardo, 1 Taunt. 26 ; R. & 
 R. C. C. 134. 
 
 A British subject was indictable 
 under 33 Hen. 8, c. 23, for the mur- 
 der of another British subject. 
 
 Digitizeaby Microsoft® 
 
 though the murder was committed 
 within the dominion of a foreign in- 
 dependent state. Hex v. Sawyer, 
 R. & R. C. C. 294 ; 2 C. & K. 101 ; 
 -S". P., Rex V. Ealing, Car. C. L. 105. 
 An indictment on 33 Hen. 8, c. 23, 
 for the murder of one British sub- 
 ject by another in a foreign state, 
 stating that the person murdered 
 was at the time in the king's peace, 
 was sufficient to shew that he was 
 a British subject, lb. 
 
 In an indictment on 9 Geo. 4, c. 
 31, s. 7, for murder committed by a 
 British subject abroad, it must be 
 averred that the prisoner and the 
 deceased were subjects of his Maj- 
 esty. To prove the allegation that 
 the prisoner was a subject of his 
 Majesty, his own declaration is evi- 
 dence to go to the jury, and it will 
 be for them to say, whether they 
 are satisfied that he is in fact a 
 British-born subject. Rex v. HeL 
 sham, 4 C. & P. 394— Bayley and 
 Bosanquet. 
 
 A Spaniard, being in England, 
 signed articles to serve in a ship 
 " bound on a voyage to the Indian 
 seas and elsewhei'e, on a seeking 
 and trading voyage (not exceeding 
 three years' duration), and back to 
 the United Kingdom." On the 
 ship's arrival at Zanzibar, an 
 island in the Indian seas, which was 
 under the dominion of an Arab 
 king, the captain left the vessel (in 
 pursuance of an understanding in 
 England), and set up in trade, and 
 without the consent of the rest 
 of the crew, engaged the Span- 
 iard as an interpreter, the new 
 captain of the ship not requir- 
 ing him to serve on board. The 
 ship went two or three short voy- 
 ages without him, and returned to 
 anchor a few hundred yards from 
 the shore, in a roadstead of seven 
 fathoms water, between Zanzibar 
 and several other islands. The 
 crew being on shore, a quarrel arose 
 between the Spaniard and one of 
 them, which led to blows by the 
 Spaniard, which killed the other 
 
348 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 The death took place on board ship. 
 The Spaniard was brought to Eng- 
 land, and indicted and tried in Lon- 
 don under a special commission, is- 
 sued in pursuance of 9 Geo. 4, c. 
 31, s. 7 : — Held, that he could not 
 be convicted — first, as he was not a 
 subject of his Majesty within the 
 meaning of that section ; and sec- 
 ondly,, that as the death was on 
 shipboard, though the blows were 
 given on shore, the offence could 
 not be said to have been committed 
 according to the words of the stat- 
 ute, " on land out of the United 
 Kingdom." Rex v. Mattos, 7 C. & 
 P. 458 — Vaughan and Bosanquet. 
 
 A British subject, who commit- 
 ted a murder in a foreign country 
 upon a person who was not a Brit- 
 ish subject, was triable in England 
 under 9 Geo. 4, c. 31, s. 7. Reg. v. 
 Azzopardi, 1 C. & Z. 203 ; 2 M. C. 
 C. 289. 
 
 On the trial of Brazilians for the 
 murder of P., it appeared, that a 
 British cruiser, engaged in the pre- 
 vention of the slave-trade, manned 
 two boats, and sent them, com- 
 manded by a lieutenant, to board 
 the Brazilian ship F. : he did so, and 
 finding her fitted up for slaves, but 
 with no slaves on board, took her. 
 After this, the lieutenant in the 
 ship P. chased the ship E., also 
 Brazilian, and sent a boat with P., 
 who was a midshipman, to board 
 her. She had slaves on board and 
 was captured, and part of her crew 
 put on board the P., and left there, 
 with the captain and cook of the F., 
 as prisoners in charge of P. and 
 British seamen. Neither the boats 
 nor the F., after she was taken, had 
 any instructions on board, but the 
 cruiser had. Such of the crew of 
 the E. as were thus put on board 
 the F., and the cook of the F., all 
 Brazilians, rose on P. and the Brit- 
 ish seamen and killed them all ; but 
 the captain of the F. would not join 
 in the transaction. It was contended 
 for the prosecution, that the F. and 
 E. were legally taken under 5 Geo. 
 
 3, c. 113, and 7 & 8 Geo. 4, c. 74, 
 and the Portuguese and Brazilian 
 treaties as to slave-trading ; and 
 that the prisoners were in lawful 
 custody, and the ship F. in the law- 
 ful custody of the Queen's officers. 
 The prisoners were convicted of T;he 
 murder, but the majority of the 
 jadges held the conviction wrong, 
 on the ground of want of jurisdic- 
 tion in an English court to try an 
 offence committed on board the F. : 
 and that, if the lawful possession of 
 that vessel by the British Crown 
 through its officers would be suffi- 
 cient to give jurisdiction, there was 
 no evidence brought before the 
 court at the trial to shew that the 
 possession was lawful. Reg. v Ser- 
 va, 2 C. & K. 53 ; 1 Den. C. C. 104. 
 
 Upon an indictment for murder, 
 it was proved that the oifence was 
 committed upon the high seas, in a 
 ship sailing under the British flag, 
 which was foreign built, and all the 
 crew of which, both officers and 
 men, including the prisoner and the 
 deceased,were foreigners. Acertified 
 copy of the register was put in evi- 
 dence, in which one Rehder was de- 
 scribed as the sole owner, and as 
 being of London, and a merchant. 
 Rehder was not a born Englishman, 
 and there was no evidence of his 
 having letters of denization, or that 
 he had been naturalized: — Held, 
 that the ship was not a British ship 
 so as to give jurisdiction in this 
 country to try the oifence. Reg. v. 
 Bjornsen, 10 Cox, C. C. 74 ; L. & 
 C. 545 ; 11 Jur., N. S. 589; 34 L. 
 J., M. C. 180 ; 13 W. R. 664 : 12 
 L. T., N. S. 473. 
 
 On a charge of murder on the 
 high seas, on board a British ship, 
 afloat. The deceased having been 
 thrown out of a foreign ship in a 
 foreign port, the question whether 
 all these facts must not be averred 
 in each count of the indictment, in 
 order to give a judge sitting under 
 an ordinary commission of oyer and 
 terminer and general gaol delivery 
 jurisdiction to try the offence, as it 
 
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PRINCIPALS AND ACCESSORIES. 
 
 349 
 
 arises on the record, is a point which 
 ■will not be reserved for the Court 
 of Criminal Appeal. Reg. v. Men- 
 ham, 1 P. & F. 3 G9— Pollock. 
 
 If one foreigner inilicts a blow on 
 another foreigner in a foreign ves- 
 sel on the high seas, and the person 
 so struck in a few days aftei-wards 
 lands in England and dies there, the 
 homicide is not cognisable by the 
 courts of this country by virtue of 
 9 Geo. 4, c. 31, s. 8, or of 2 Geo. 2, 
 c. 21, s. 1. JReg. v. Zewis, Dears. & 
 B. C. C. 182 ; 3 Jur., N. S. 523 ; 
 26 L. J., M. C. 104 ; 7 Cox, C. C. 
 277. 
 
 A foreigner on board a British 
 ship on the high seas owes allegiance 
 tothelawof England, and if he com- 
 mits an offence against that law, 
 he is triable under 1 8 & 1 9 Vict. c. 
 91, s. 21, by any court of justice in 
 her Majesty's dominions, within the 
 jurisdiction of which he may, at the 
 time of the indictment, happen to 
 be, provided that such court would 
 have had cognizance of the crime if 
 committed within the limits of its 
 ordinarv jurisdiction. Reg. v. Sat- 
 tler, 7 Cox, C. C. 431 ; 4 Jur., N. 
 S. 98; Dears. & B. C. C. 525; 27 
 L. J., M. C. 48. 
 
 Where a foreigner, having com- 
 mitted larceny in England, was fol- 
 lowed to Hamburgh by an Eng- 
 lish police-officer, who ai-rested him 
 without a warrant, and brought 
 him against his will on board an 
 English steamer trading between 
 Hamburgh and London, and there 
 kept him in custody in order that 
 he might be tried for the larceny in 
 England : the foreigner having 
 shot the officer during the voyage, 
 and whilst the steamer was on the 
 high seas, under such circumstances 
 that if the killing had been by an 
 Englishman in an English county, the 
 offence would have been murder : — 
 Held, that the Central Criminal 
 Court had jurisdiction under 18 
 & 19 Vict. c. 91, s. 21, to try the 
 foreigner for the murder of the pol- 
 ice-officer, lb. 
 
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 4. Principals, Accessories and Abet- 
 tors. 
 (24 & 25 Vict. c. 100, s. 67.) 
 
 Where persons combine to stand 
 by one another in a breach of the 
 peace, with a general resolution to 
 resist all opposers, and in execution 
 of their design a murder is commit- 
 ted, all of the company are equally 
 principals in the murder, though at 
 the time of the fact some of them 
 were at such a distance as to be out 
 of view. Reg. v. Howell, 9 C. & 
 P. 437— Littiedale. 
 
 The doctrine of constructive hom- 
 icide, as regards offenders not ac- 
 tually present at, or parties to, an 
 act of homicide, but sought to be 
 made liable for it, by reason of 
 being engaged in a common pur- 
 pose, in the course of carrying 
 out which the act of homicide 
 occurs, only applies (there being no 
 evidence of a common intent to 
 carry* out the purpose at all hazards, 
 and by all means), where the com- 
 mon purpose is felonious ; not where 
 it is merely unlawful, as in the case 
 of a misdemeanor, such as night- 
 poaching. Reg. V. Skeet, 4 F. & 
 F. 931— Pollock. 
 
 A statement by a prisoner that 
 
 A. had proposed to him to murder 
 
 B. on the following night, and that 
 he (the prisoner) agreed to go, but 
 did not do so, is not of itself evi- 
 dence that the prisoner was acces- 
 sory before the fact to the murder 
 of B. by A. on that night. Reg. v. 
 Blackburn, 6 Cox, C. C. 333— Tal- 
 fourd. 
 
 If husband and wife jointly com- 
 mit a murder, both are equally 
 amenable to the law, as the doc- 
 trine of presumed coercion of the 
 wife does not apply in murder. 
 Reg. V. Manning, 2 C. & K. 903. 
 
 So also a wife is amenable as an 
 accessory before the fact to a mur- 
 der committed by her husband ; but 
 if the only part she took in the 
 transaction was in harbouring and 
 comforting her husband after the 
 
350 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 crime was committed, she is not li- 
 able as an accessory after the fact. 
 Ih. 
 
 A count in an indictment charg- 
 ed A. with the murder of B., and 
 also charged C. and D. with being 
 present, aiding and abetting A. in 
 the commission of the murder. A. 
 was an insane person : — Held, there- 
 fore, that C. and D. could not be 
 convicted on this count. Heff. v. 
 Tyler, 8 C. & P. 616— Denman. 
 
 If a person knowingly invites an- 
 other to a certain place, in order 
 that he may be murdered, and he 
 is murdered accordingly, that would 
 constitute such person an accessory 
 before the fact to the murder. Heff. 
 V. Manning, 2 G. & K. 903. 
 
 5. Conspirinff or Soliciting to com- 
 mit Murder. 
 
 By 24 & 25 Vict. c. 100, s. 4, 
 " all persons who shall conspire, con- 
 " federate and agree to murde!- any 
 " person, whether he be a subject 
 " of her Majesty or not, and wheth- 
 " er he be within the Queen's domin- 
 " ions or not, and whosoever shall 
 " solicit, encourage, persuade, or en- 
 " deavor to persuade, or shall pro- 
 " pose to any person to murder any 
 " other person, whether he be a 
 " subject of her Majesty or not, and 
 " whether he be within the Queen's 
 " dominions or not, shall be guilty 
 " of a misdemeanor, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for any 
 " term not more than ten and not 
 " less than five years (27 & 28 
 "Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard la- 
 " hour." 
 
 Evidence that A. was privy to a 
 plot to murder B. by explosive ma- 
 chines, is sufficient to go to the jury 
 on counts charging A. with the mur- 
 der of C. (accidentally killed by the 
 explosion) — with conspiring to mur- 
 der him, and as an accessory to the 
 
 murder. Reg. v. Bminard, 1 F. & 
 F. 240— Campbell. 
 
 At a period of the trial when it 
 had been proved that the grenades 
 by which the death in question had 
 been caused had been ordered by 
 A. ; but when there was no evidence 
 to connect A. with the prisoner, it 
 was proved that a letter in A.'s 
 handwriting,' bearing a memoran- 
 dum in the hand of the prisoner, 
 was found at his residence after his 
 arrest upon the present charge : — 
 Held, that such letter was admissi- 
 ble against him, not upon the ground 
 that A. was a co-conspirator, but 
 upon the ground that it was found 
 in the possession of the prisoner, and 
 was relevant to this inquiry. Ih. 
 
 6. Attempts to Murder and inflict- 
 ing Grievous Bodily Harm. 
 
 (a) By administering Poison. 
 
 With Intent to Murder.] — By 
 24 & 25 Vict. c. 100, s. 11, " who- 
 " soever shall administer to, or cause 
 " to be administered to, ortobe taken 
 " by any person, any ijoison or other 
 " destructive thing, or shall by any 
 " means whatsoever wound or cause 
 " any grievous bodily harm to any 
 " person, with intent in any of the 
 " cases aforesaid to commit murder, 
 " shall be guilty of felony, and, be- 
 " ing convicted thereof, shall be li- 
 " able, at the discretion of the court, 
 " to be kept in penal servitude for 
 " life, or for any term not less than 
 " five years (27 & 28 Vict. c. 47), 
 " or to be imprisoned for any term 
 " not exceeding two years, with or 
 " without hard labour, and with or 
 " without solitary confinement." 
 {Former enactment, 7 Will. 4 & 1 
 Vict. c. 85, s. 2.) 
 
 And by s. 14, "whosoever shall 
 " attempt to administer to, or shall 
 " attempt to cause to be admiuis- 
 " tered to, or to be taken by any 
 " person, any poison or other de- 
 " structive thing, with intent to 
 " commit murder, shall, whether 
 " any bodily injury be efiected or 
 
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BY POlSON. 
 
 351 
 
 " not, be guilty of felony." {Pun- 
 ishment as in last section. Former 
 enactments, 9 Geo. 4, c. 31, s. 11, 
 and 7 Will. 4 & 1 Vict. c. 85, s. 3.) 
 
 It is not an administering of poison 
 unless the poison is taken into the 
 stomach. Therefore, where A.' was 
 indicted for administering poison to a 
 woman, with intent to murder her ; 
 and the proof was that he gave her 
 a bit of cake which contained arsen- 
 ic and sulphate of copper, which 
 she put into her mouth, but which 
 she spit out agaia without having 
 swallowed any part of it : — Held, 
 that it was not sufficient to con- 
 vict. Sex V. Cadinan, Car. C. L. 
 237 ; 1 M. C. C. 114. 
 
 If a servant put poison into a 
 coffise-pot which contained coffee, 
 and when her mistress came down 
 to breakfast, the servant told the 
 mistress that she had put the coffee- 
 pot there for her (the mistress's) 
 breakfast, and the mistress drank 
 the poisoned coffee — this was a caus- 
 ing the poison to be taken, within 9 
 Geo. 4, c. 31, s. 11. Hex v. ITarley, 
 4 C. & P. 369— Park. 
 
 If A. sent poison intending it for B., 
 and with intent to kill B., and it came 
 into the possession of C, who took 
 it, A. might be indicted on 9 Geo. 4, 
 c. 31, s. 11, for administering it to 
 C. Hex V. Lewis, 6 C. & P. 161— 
 Gurney. 
 
 The delivery of poison to an a^ent, 
 with directions to him to cause it to 
 be administered to another under 
 such circumstances that, if adminis- 
 tered, the agent would be the sole 
 principal felon, was not an attempt 
 to administer poison within the 7 
 Will. 4 & 1 Vict. c. 85, s. 3. Be;/. 
 V. WiUiams, 1 C. & K. 589 ; 1 Den. 
 C. C. 39. 
 
 Administering unbroken cocculus 
 indicus berries to an infant was ad- 
 ministering poison -within 7 Will. 4 
 & 1 Vict. c. 85, s. 2, although it was 
 proved that the berries were not poi- 
 sonous until the exterior or pod was 
 broken, and that by reason of the 
 weakness of the infant's digestive or- 
 
 gans, the berries were innocuous. 
 Reg. V. Gluderay, 1 Den. 0. 0. 515 ; 
 2 C. & K. 907 ; T. & M. 219 ; 14 
 Jur. 71 ; 19 L. J., M. C. 119 ; 4 Cox, 
 C. C. 84. 
 
 A person who at the same time ad- 
 ministers a poison and its antidote 
 does not administer poison. — Alder- 
 son. Ih. 
 
 Putting poison in a place where it 
 is lUiely to be found and taken, if 
 done with an intent to murder, was 
 an attempt to administer poison with- 
 in 7 Will. 4 & 1 Vict. c. 85, s. 3. 
 Reg. V. Dale, 6 Cox, C. C. 14— 
 Wightman. 
 
 Upon an indictment under 7 Will. 
 4 & 1 Vict c. 85, ss. 3, 4, for admin- 
 istering poison withintent to murder, 
 a previous acquittal on an indict- 
 ment for murder founded on the 
 same facts could not be pleaded in 
 bar. Reg. v. Connell, 6 Cox, C. C. 
 178 — Williams and Talfourd. 
 
 Under 24 & 25 Vict. c. 100, ss. 
 23, 54, if a noxious thing is unlaw- 
 fully administered with intent only 
 to injure or annoy, and does, in fact, 
 inflict grievous bodily harm, a felony 
 is committed. Tulley v. Corrie, 17 
 L. T., N. S. 140 ; 10 Cox, C. C. 640 
 — Q. B. ; S. 0. 10 Cox, C. C. 584, 
 at Nisi Prius. 
 
 Withintent to inflict Grievous Bod- 
 ily Harm.y-Bj 24 & 25 Vict. c. 
 100, s. 28, " whosoever shall unlaw- 
 " fully and maliciously administer to, 
 " or cause to be administered to or 
 " taken by, any other person, any 
 " poison or other destructive or nox- 
 " ious thing, so as thereby to endan- 
 " ger the life of such person, or so as 
 " thereby to inflict upon such person 
 " any grievous bodily harm, shall be 
 " guilty of felony, and being convict- 
 " ed thereof, shall be liable, at the 
 " discretion of the court, to be kept 
 " in penal servitude for any tei-m not 
 " exceeding ten years, and not less 
 "than five years (27 & 28 Vict. c. 
 " 47), or to be imprisoned for any 
 " term not exceeding two years, with 
 " or without hard labour," {Simi- 
 
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352 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 lar to former provision, '23 'Vict. c. 8, 
 
 8.1.) 
 
 With Intent to Injure, Aggrieve, or 
 Annoy.'] — By s. 24, " whosoever 
 " shall unlawfully and maliciously 
 " administer to, or cause to be ad- 
 " ministered to or taken by, any oth- 
 " er person, any poison or other de- 
 " structive or noxious thing, with in- 
 " tent to injure, aggrieve or annoy 
 " such person, shall be guilty of a 
 " misdemeanor, and, being convict- 
 " ed thereof, shall be liable, at the 
 " discretion of the court, to be kept 
 " in penal servitude for the term of 
 " five years (27 & 28 Vict. c. 47), 
 " or to be imprisoned for any term 
 " not exceeding two years, with or 
 " without hard labour." {Similar 
 to 23 Vict. c. 8, s. 2.) 
 
 By s. 25, " if, upon the trial of any 
 " person for any felony in the last 
 " but one preceding section mention- 
 " ed, the jury shall not be satisfied 
 " that such person is guilty thej-eof, 
 " but shall be satisfied that he is 
 " guilty of any misdemeanor in the 
 " last preceding section mentioned, 
 " then and in every such case the 
 "jury may acquit the accused of 
 " such felony, and find him guilty 
 " of such misdemeanor, and there- 
 " upon he shall be liable to be pun- 
 " ished in the same manner as if con- 
 " victed upon an indictment for such 
 " misdemeanor." {Similar to 23 
 Vict. c. 8, s. 3.) 
 
 Administering cantharides to a 
 woman, with intent to excite her sex- 
 ual passion, in order to obtain con- 
 nexion with her, was an administer- 
 ing with intent to injure, aggrieve or 
 annoy, within 23 Vict. c. 8, s. 2. 
 Beg. V. Wilkins, L. &. C. 89 ; 9 
 Cox, C. C. 20 ; 31 L. J., M. C. 72 ; 
 ,7 Jur.,]Sr. S. 1128; 10 W. R. 62; 
 5 L. T., N. S. 330. 
 
 But administering cantharides to 
 a woman, with intent to injure her 
 health, was not a misdemeanor at 
 common law, neither was it an as- 
 sault, nor within 7 Will. 4 & 1 Vict. 
 
 c. 85. Reg. v. Hanson, 4 Cox, C. 
 C. 138 ; 2 C. & K. 912.— Williams. 
 
 Administering Chloroform or Stu- 
 pefying Drugs.] — By 24 & 25 Vict, 
 c. 100, s. 22, "whosoever shall un- 
 " lawfully apply or administer to, or 
 " cause to be taken by, or attempt 
 " to apply or administer to, or at- 
 " tempt to cause to be administered 
 " to or taken by, any person, any 
 " chloroform, laudanum or other stu- 
 " pefying or overpowering drug, mat- 
 " ter or thing, with intent in any of 
 " such cases thereby to enable him- 
 " self or any other person to com- 
 " mit, or with intent in any of such 
 " cases thereby to assist any other 
 " person in committing, any indict- 
 " able offence, shall be guilty of fel- 
 " ony, and, being convicted thereof, 
 " shall be liable, at the discretion of 
 " the court, to be kept in penal serv- 
 " itude for life, or for any other term 
 " not less than five years (27 & 28 
 "Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard la- 
 " bour." [Former provision, 14 & 
 15 Vict. c. 19, s. 3.) 
 
 Indictment.] — A prisoner was in- 
 dicted for mixing sponge with milk, 
 and administering it with intent to 
 poison. The indictment was insufli- 
 cient, because it did not aver that 
 the sponge was of a deleterious or a 
 poisonous nature. Hex v. Powles, 4 
 C. &. P. 571— Alderson. 
 
 Evidence.]— An indictment for 
 causing poison to be taken by A. 
 with intent to marder A, is not sus- 
 tained by evidence shewing that the 
 poison, although taken by A., was 
 intended for another person. Reg. 
 V. Ryan, 2 M. & Rob. 213— Parke. 
 
 On an indictment for administer- 
 ing poison with intent to murder, 
 the police having, in consequence of 
 certain information, found the bot- 
 tle containing the poison in a place 
 used by the prisoner, are bound to 
 
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MISCARRIAGE OR ABORTION. 
 
 353 
 
 disclose from whom they had the in- 1 
 foi-mation. Reg. v. Richardson, 3 
 F. & P. 693— Cockbum. 
 
 (b) With Intent to procure Miscar- 
 riage or Abortion. 
 , Statute.]— By 24 & 25 Vict. c. 
 100, s. 58, " every woman, being 
 " with child, who, with intent to pro- 
 " cure her own miscarriage, shall 
 " unlawfully administer to herself 
 " any poison or other noxious thing, 
 " or shall unlawfully use any instrli- 
 " ment or other means whatsoever 
 " with the like intent, and whosoev- 
 " er, with intent to procure the mis- 
 " carriage of any woman, whether 
 " she be or be not with child, shall 
 " unlawfully administer to her, or 
 " cause to be taken by her, any poi- 
 " son or other noxious thing, or shall 
 " unlawfully use any instrument 
 " or other means whatsoever, with 
 " the like intent, shall be guilty of 
 " felony, and, being convicted there- 
 " of, shall be liable, at the discretion 
 " of the court, to be kept in penal 
 " servitude for life or for any teim 
 " not less than five years (27 & 28 
 " Vict. c. 47) , or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard labour, 
 " and with or without solitary con- 
 " finement." (Former provisions, 
 7 Will. 4 & 1 Vict. c. 85, s. 6 ; 9 
 Geo. 4, c. 31, s. 13. By 9 Geo. 4, 
 c. 31, the 43 Geo. 3, c. 68, LordEl- 
 lenhorougKs Act, was repealed!) 
 
 By s. 59, " whosoever shall unlaw- 
 " fully supply or procure any poison 
 " or other noxious thing, or any in- 
 " strument or thing whatsoever, 
 " knowing that the same is intended 
 " to be unlawfully used or employed, 
 " with intent to procure the miscar- 
 " riage of any woman, whether she 
 " be or be not with child, shall be 
 " guilty of a misdemeanor, and, be- 
 " ing convicted thereof, shall be li- 
 " able, at the discretion of the court, 
 " to be kept in penal servitude for 
 " the term of five years (27 & 28 
 " Vict. c. 47), or to be imprisoned 
 
 " for any term not exceeding two 
 " years, with or without hard labour." 
 
 What within.] — A small quantity 
 of savin, not sufficient to do more 
 than produce a little disturbance in 
 the stomach, was not a noxious thing 
 within 7 Will. 4 & 1 Vict. c. 85, s. 
 6. Reg. v. Perry, 2 Cox, C. C. 223 
 —Wilde. 
 
 Upon an indictment, under 24 & 
 25 Vict. c. 100, s. 59, for supplying 
 a certain noxious thing, knowing 
 that the same is intended to be used 
 with intent to procure miscarriage, 
 it is necessary to prove that the thing 
 supplied is noxious. The supplying 
 an innoxious drug, whatever may be 
 the intent of the person supplying it, 
 is not an ofience against that enact- 
 ment. Reg. V. Isaacs, L. & C. 220 ; 
 9 Cox, C. C. 228 ; 9 Jur., N. S. 212 ; 
 32 L. J., M. C. 52; 11 W. R. 95; 
 7 L. T., K S. 3G5. 
 
 In order to constitute the offence 
 of supplying a noxious thing, with 
 the intention that it shall be em- 
 ployed in procuring abortion within 
 24 & 25 Vict. c. 100, s. 59, it is not 
 necessary that the intention of em- 
 ploying it should exist in the mind 
 of any other person than the person 
 supplying it. Reg. v. Hillman, L. 
 & C. 343 ; 9 Cox, C. C. 386 ; 33 
 L. J., M. C. 60; 12 W. R. Ill; 9 
 L. T., N. S. 518. 
 
 If A. procures poison and delivers 
 it to B.,both intending thatB..should 
 take it for the purpose of procuring 
 abortion, and B. afterwards takes it 
 with that intent in the absence of 
 A., A. might be convicted under 7 
 Will. 4 <fe 1 Vict. c. 85, s. 6, of caus- 
 ing it to be taken. Reg. v. Wilson, 
 Dears. & B. C. C. 127 ; 7 Cox, C. 
 C. 190 ; 2 Jur., N. S. 1146 ; 26 L. 
 J., M. C. 18. 
 
 The prisoner, in a conversation 
 with a woman who was pregnant, 
 told her that he knew of something 
 that would get rid of her child. On 
 being asked what it was, he said it 
 was savin. He afterwards brought 
 
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354 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 t!)0 woman some savin, and gave 
 her directions how to take it. She 
 took the savin accordingly, and the 
 prisoner called from time to time to 
 inquire the effect. The prisoner also 
 made up into pills a drug which the 
 woman had obtained at his request. 
 After taking the savin and the pills 
 the woman became and continued 
 very ill till she was confined : — 
 Held, a causing to be taken within 
 
 7 Will. 4 & 1 Viet. c. 85, s. 6. Reg. 
 v. Farrow, Dears. & B. C. C 164; 
 3 Jur., N. S. 167. 
 
 Who Indictable.] — The deceased 
 woman became pregnant by the 
 prisoner, and died from the effects 
 of corrosive sublimate taken by her 
 for the purpose of producing abor- 
 tion. The prisoner knowingly pro- 
 cured it for the deceased, at her in- 
 stigation, and under the influence of 
 threats of self-destruction, if the 
 means of producing abortion were 
 not supplied to her. The jury neg- 
 atived the fact of his having ad- 
 ministered it, or caused it to be 
 taken by her : — Held, that he was 
 not guilty of murder as an acces- 
 sory before the fact. Reg. v. Fret- 
 well, 9 Cox, C. C. 153 ; L. & C. 1 61 ; 
 
 8 Jur., N". S. 466. But see 24 & 25 
 Vict. c. 100, ss. 68, 59. 
 
 If a person intending to procure 
 abortion does an act which causes 
 a child to be born so much earlier 
 than the natural time, that it is born 
 in a state much less capable of liv- 
 ing, and afterwards dies in conse- 
 quence of its exposure to the ex- 
 ternal world, the person who by 
 this misconduct so brings the child 
 into the world, and puts it thereby 
 in a situation in which it cannot 
 live, is guilty of murder, and the 
 mere existence of a possibility that 
 something might have been done to 
 prevent the death would not render 
 it less murder. Reg. v. West, 2 C. 
 & K. 784; 2 Cox, C. C. 500— 
 Maule. 
 
 An indictment under 7 Will. 4 
 
 & 1 Vict. c. 85, s. 6, for using 
 an instrument with intent to pro- 
 cure miscarriage : — ^Held, immate- 
 rial whether or not the woman was 
 pregnant at the time of the instru- 
 ment being used. Reg. v. Goodhall, 
 or GaodchUd, 1 Den. C. C. 187 ; 2 
 C. & K. 293. 
 
 Under Repealed Statute of 43 
 Geo. 3, c. 58, s. 1.] — The expression 
 " quick with child," in this statute 
 meant when the woman felt the 
 child move within her. GoldsmvtKs 
 case, 3 Camp. 76 — Lawrence. 
 
 Or, having conceived. Iie(/. v. 
 Wycherley, 8 C. & P. 262— Gur- 
 ney. 
 
 Or, feeling the child alive and 
 quick within, at whatever time the 
 fcBtus might have a separate exist- 
 ence. Rex V. Phillips, 3 Camp. 77. 
 
 To constitute the offence of ad- 
 ministering poison or other noxious 
 substance, under the same statute, 
 some of the poison or noxious sub- 
 stance must have been taken by or 
 api^lied to the woman. Rex v. Gad- 
 man, 1 M. C. C. 114. 
 
 On an indictment for administer- 
 ing a drug to a woman to procure 
 abortion, she not being quick with 
 child ; it^ it appeared she was not 
 quick with child at all, the prisoner 
 was acquitted, although it appeared 
 that he thought she was with child, 
 and gave her the drug with an in- 
 tent to destroy the child. Rex v. 
 Scudder, 3 C. & P. 605 ; 1 M. C. C. 
 216. 
 
 (c) By Shooting, Wounding, Drown- 
 ing, Suffocating or Strangling. 
 
 With Intent to Murder.] — By 24 
 & 25 Vict. c. 100, s. 14, "whoso- 
 " ever shall shoot at any person, or 
 " shall, by drawing a trigger or in 
 " any other manner attempt to dis- 
 " charge any kind of loaded arms at 
 " any person, or shall attempt to 
 " drown, suffocate or strangle any 
 " person, with intent, in any of the 
 
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SHOOTING, WOUNDING, ETC. 
 
 355 
 
 " cases aforesaid, to commit mur- 
 " der, shall whether any bodily in- 
 " jury be effected or not, be guilty 
 " of felony, and, being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for life, or for any 
 " term not less than five years (27 
 " & 28 Vict. c. 47), or to be im- 
 " prisoned for any term not exceed- 
 " ing two years, with or without 
 "hard labour, and with or without 
 " solitary confinement." {Former 
 enactment, 7 Will. 4 & 1 Vict. c. 85, 
 s. 3.) 
 
 And by s. 11, " whosoever shall, 
 " by any means whatsoever, wound 
 " or cause any grievous bodily harm 
 " to any person, with intent to com- 
 " mit murder, shall be guilty of fel- 
 ony." {Punishment as in last section. 
 Former provision, 9 Geo. 4, c. 31 , ss. 
 n,U,and 7 Will. 4 & 1 Vict. c. 
 85, s. 2.) 
 
 The 7 Will. 4 & 1 Viet. c. 85, s. 
 1, repealed 9 Geo. 4, c. 31, ss. 11, 12. 
 
 If a person intending to shoot an- 
 other, put his finger on the trigger 
 of a loaded pistol, but was prevent- 
 ed from pulling the trigger, this was 
 not an attempt to discharge loaded 
 arms by drawing a trigger, or in 
 any other manner, within* 7 Will. 
 4 & 1 Vict. c. 85, ss. 3, 4, as the 
 words, " in any other manner," in 
 that statue, meant something anal- 
 ogously to drawing the trigger, 
 which was the proximate cause of 
 the loaded arms going ofi'. Heg. v. 
 St. George, 9 C. & P. 483— Parke. 
 
 The applying a lighted match to 
 a loaded match-lock gun, or the 
 striking of the percussion cap of a 
 percussion gun, was a sufficient at- 
 tempt within these enactments. lb. 
 
 If intending to mvirder A., and 
 supposing B. to be A., a person 
 shoots at and woimds B., he may 
 be convicted of wounding B., with 
 intent to murder him. Reg. v. 
 Smith, Dears. C. C. 559 ; 1 Jur., N. 
 S. in6;25L. J., M. C. 29. 
 
 On an indictment on 7 Will. 4 & 1 
 Vict. c. 85, s. 2, for the offence of in- 
 
 flicting an injury dangerous to life, 
 with mtent to murder, the jury 
 ought not to convict unless satisfied 
 that the prisoner had in his mind a 
 positive intention to murder ; and it 
 is not sufficient that it would have 
 been a case of murder if death had 
 ensued. Beg. v. Cruse, 8 C. & P. 
 541 — Patteson. 
 
 What are loaded Arms. ^ — By 24 
 c% 25 Vict. c. 100, s. 19, " any gun, 
 " pistol or other arms which shall 
 " be loaded in the barrel with gun- 
 " powder or any other explosive 
 " substance, and ball, shot, slug or 
 " other destructive material, shall 
 " be deemed to be loaded arms 
 " within the meaning of this act, 
 " although the attempt to discharge 
 " the same may fail from want of 
 " proper priming, or from any other 
 " cause." 
 
 A rifle which was loaded, but 
 which for want of proper priming 
 would not go off, was not a loaded 
 arm within the 7 Will. 4 & 1 Vict, 
 c. 85, s. 3 ; and the pointing of a 
 rifle thus circumstanced at a per- 
 son, and pulling the trigger of it, 
 whereby the cock and hammer 
 were thrown, and the pan opened, 
 did not warrant a conviction either 
 of felony under sect. 3. Reg. v. 
 James, 1 C. & K. 530— Tindal. 
 
 In order to constitute the offence 
 of attempting to discharge loaded 
 fire-arms, within 43 Geo. 3, c. 58, 
 they must liave been so loaded as 
 to be capable of doing the mischief 
 intended. Rex v. Carr, K. & R. C. 
 C. 377 ; S. P., Rex v. Whitley, 1 
 Lewin, 0. C. 123. 
 
 If a pistol was loaded with gun- 
 powder and balls, but its touch-hole 
 was plugged, so that it could not 
 by possibility be fired, this was not 
 loaded arms, within 9 Geo. 4, c. 31, 
 ss. 1 1 , 1 2. Rex. V. Harris, 5 C. & P. 
 159 — Patteson. 
 
 Where on an indictment on 43 
 Geo. 3, c. 58, for maliciously shoot- 
 ing at a person, it appeared that the 
 instrument was fired so near, and in 
 
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356 
 
 MURDER, ]\1ANSLAUGHTER, ETC. 
 
 such a direction, as to be likely to 
 kill or to do other grievous bodily 
 harm to such person ; and with an 
 intent that it should do so, the case 
 was within that act, although it was 
 loaded with powder and paper only. 
 Hex V. Kitchen, R. & R. C. C. 95. 
 
 A. sent a tin box to B., contain- 
 ing three pounds of gunpowder, and 
 two detonators, whifch were intend- 
 ed to ignite the gunpowder when 
 any person opened the box, and so 
 destroy the person who opened it : 
 — Held, that this was not an at- 
 tempt to discharge loaded arms at 
 B. within 9 Geo. 4, c. 31, ss. 11, 12. 
 Eex V. Mountford, 7 C. & P. 242 ; 1 
 M. C. C. 441. 
 
 Shooting.'] — The fact of firing a 
 gun into a room of A.'s house, with 
 intent to shoot A., the prisoner sup- 
 posing him to be in the room, will 
 not support a charge of shooting at 
 A., if he is not shewn to be in the 
 room, or within reach of the shot. 
 Rex V. Lovel, 2 M. & Rob. 39— 
 Gurney. 
 
 A. was indicted for feloniously 
 shooting at the prosecutor, with in- 
 tent to do grievous bodily harm to 
 him. The jury found that he did 
 not aim at the prosecutor, or at any 
 one else in particular, but that he 
 fired into a group of persons, in- 
 tending generally to do grievous 
 bodily harm, and so unlawfully 
 wounded : — Held, that he was 
 guilty of the felony charged, and 
 not merely of the misdemeanor of 
 unlawfully wounding. Reg. v. Fret- 
 well, L. & C. 443 ; 9 Cox, C. C. 471 ; 
 10 Jur., N. S. 595 ; 33 L. J., M. C. 
 128 ; 12 W. R. 751 ; 10 L. T., N. S. 
 428. 
 
 A person intending to shoot at 
 and kill L., shot at H., mistaking 
 him for L., but did not kill H. On 
 an indictment for shooting at H., 
 with intent to murder H., the judge 
 left it to the jury to say whether 
 there was an intent to murder H. ; 
 but he laid it down that the law in- 
 fers that a party intends to do that 
 
 which is the immediate and necessa- 
 ry effect of the act which he com- 
 mits. The jury found that the pris- 
 oner did not intend to do any harm 
 to H., and the judge directed an ac- 
 quittal to be recorded. Rex v. Hoh, 
 7 C. & P. 519— Littledale. 
 
 A., a constable employed to watch 
 a copse, seeing B. wrongfully carry 
 away wood therefrom, calls to him 
 to stop, and on B.'s running away, 
 fires at and wounds him. B. had 
 been frequently convicted summa- 
 rily of the like offence, and by 7 
 & 8 Geo. 4, c. 29, s. 39, such steal- 
 ing after two simimary convictions 
 is a felony. The fact of these con- 
 victions, as well as their legal con- 
 sequences, was wholly unknown to 
 A. : — Held, that A. was rightly con- 
 victed of wounding with intent to do 
 grievous bodily harm. Reg. v. Dad- 
 son, 2 Den. C. C. 35 ; 3 C. & K. 148 ; 
 T. & M. 385 ; 14 Jur. 1051 ; 20 L. 
 J., M. C. 57 ; 4 Cox, C. C. 385. 
 
 An indictment under 9 Geo. 4, c. 
 31, s. 12, for maliciously shooting at 
 A., was supported if he was struck 
 with the shot, though the gun was 
 aimed at a different person. Rex v. 
 Jarvis, 2 M. & Rob. 40— Gurney. 
 
 A. had the barrels of a double- 
 barrelled percussion gun detached 
 from the stock and lock, and by 
 striking the percussion cap which 
 was on the nipple of one of the bar- 
 rels, he fired it and shot B. : — Held, 
 to be within 9 Geo. 4, c. 31, ss. 11, 
 12. Rex V. Ooates, 6 C. & P. 394 
 — Patteson. 
 
 Gamekeepers being in a preserve 
 between twelve and one at nio-ht 
 heard the firing of two guns, and 
 proceeding in the direction of the 
 sound, met with two persons who 
 neither had guns nor game upon 
 them, nor were either found near 
 them. The gamekeepers immedi- 
 ately seized them without calling oil 
 them to surrender, or in any way 
 notifying to them who they were. 
 The keepers were wounded, one of 
 them seriously: — Held, that the 
 prisoner who wounded them might, 
 
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SHOOTING, WOUNDING, ETC. 
 
 357 
 
 Tinder the circumstances, and tak- 
 ing into consideration the situation 
 and the time of the night, be prop- 
 erly convicted under 9 Geo. 4, c. 31, 
 ss. 11, 12. Rex V. Taylor, 7 C. & 
 P. 266— Vaughan. 
 
 G. was charged with a felonious 
 attempt to shoot. He was proved 
 to have presented a pistol at a man 
 and to have pulled the trigger, but 
 the pistol did not go off. On exam- 
 ining the pistol, it was found that, 
 if it ever had been primed, it would 
 have been impossible for the prim- 
 ing to have fallen out, and the pis- 
 tol must have gone off: — Held, 
 that there was no case to go to the 
 jury. Reg. v. Gamble, 10 Cox, C. 
 C. 545 — Russell Gurney. 
 
 Indictnient.^ — Upon the trial of 
 an indictment for shooting, with in- 
 tent to murder a person unknown, 
 it must be proved that there was an 
 intent on the part of the prisoner 
 to murder some piarticular person. 
 Reg. V. LaMament, 6 Cox, C. C. 204 
 — Jervis and Alderson. 
 
 In an indictment for maliciously 
 shooting, under 7 Will. 4 & 1 Vict, 
 c. 85, s. 4, it was sufficient to say, 
 with a certain loaded gun, without 
 going on to state with -w^hat it was 
 loaded. Reg. v. Cox, 3 Cox, C. C. 
 58— Piatt. 
 
 If an indictment for shooting an- 
 other, with intent to murder, in all 
 the counts avers that the pistol was 
 loaded with powder and a leaden 
 bullet, it must appear that the pis- 
 tol was loaded with a bullet, or the 
 prisoner will be entitled to an ac- 
 quittal. Rex V. Hughes, 5 C. & P. 
 126 — Park, Parke and BoUand. 
 See Reg. v. Oxford, 9 C. & P. 525. 
 
 On an indictment for maliciously 
 shooting, one act of shooting may 
 be laid in one set of counts, as being 
 with intent to murder H. ; and in 
 another set of counts as with intent 
 to murder L. Rex v. Holt, 7 C. & 
 P. 519— Littledale. 
 
 An indictment which charges that 
 the prisoner feloniously assaulted J 
 
 Digitized by Microsoft® 
 
 H., and, by feloniously " drawing 
 the trigger of a pistol, loaded with 
 gunpowder and a leaden bullet, 
 then and there feloniously and ma- 
 liciously did attempt to discharge 
 the said pistol at J. H.," with in- 
 tent to murder him, is good, with- 
 out stating that "the said pistol" 
 was " so loaded as aforesaid." Reg. 
 V. Baker, 1 C. & K. 254— Rolfe. 
 
 Evidence.} — An indictment on 7 
 Will. 4 & 1 Yict. c. 85, ss. 3. and 4, 
 charged the prisoner with attempt- 
 ing to discharge at the prosecutor 
 a certain blunderbuss, loaded with 
 gunpowder and divers leaden shots. 
 The prisoner, on a refusal by the 
 prosecutor to give up some title- 
 deeds, addressed'him in these words : 
 — " Then you are dead man," and 
 immediately unfolded a great coat 
 which he had on his arm, and took 
 out a blunderbuss, but was not 
 able to raise it to his shoulder, or 
 point it directly at the prosecutor, 
 before he was seized. The blunder- 
 buss was found to be very heavily 
 loaded, but the flint had dropped 
 out, and was discovered between 
 the lining of the great coat : — Held, 
 that the evidence was not sufficient 
 to sustain the charge in the indict- 
 ment. Reg. V. Lewis, 9 C. & P. 
 523 — Arabin, Serjt. 
 
 Upon an indictment for mali- 
 ciously shooting, it appeared that 
 there were two shootings ; but it be- 
 ing questionable whether the first 
 shooting was by accident or design: 
 — Held, that proof of the prisoner 
 having intentionally shot at the per- 
 son the second time, was evidence 
 to shew that the first was wilful. 
 Rex V. Voke, R. & R. C. C. 531. 
 
 Evidence of a wound having been 
 made by the contents of a pistol, 
 although no ball was found, and of 
 its having made a loud report, with 
 reference to its size, is sufficient to 
 go to a jury of its having been 
 loaded with ball. Rex v.' Weston, 
 1 Leach, C. C. 247. 
 
 An indictment charged the pris- 
 
358 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 oner in a first count with unlaw- 
 fully' and maliciously wounding, 
 and in the second cjount with un- 
 lawfully and maliciously inflicting 
 grievous bodily harm. The jury 
 found the prisoner guilty of an 
 assault : — Held, that he could be 
 properly convicted of an assault on 
 the indictment under 24 & 25 Vict, 
 c. 100, 's. 20, as the offences charged 
 were misdemeanors, and each of 
 them necessarily included the lesser 
 misdemeanor of an assault. Heff. v. 
 Taylor, 1 L. R., C. C. 194 ; 11 Cox, 
 C. C. 261. 
 
 (dj Iniflicting Grievous Bodily 
 Harm. 
 
 Statute.]— By 24 & 26 Vict. c. 
 100, s. 18, " whosoever shall unlaw- 
 " fully and maliciously, by any 
 " means whatsoever, wound or cause 
 " any grievous bodily harm to any 
 " person, or shoot at any person, or, 
 " by drawing a trigger or in any 
 " other manner, attempt to dis- 
 " charge any kind of loaded arms 
 " at any person, with intent, in any 
 " of the cases aforesaid, to maim, 
 " disfigure or disable any person, or 
 " to do some grievous bodily harm 
 " to any person, or with intent to 
 " resist or prevent the lawful ap- 
 " prehension or detainer of any per- 
 " son, shall be guilty of felony, and, 
 " being convicted thereof, shall be 
 " liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for life, or for any term not 
 " less than five years (27 & 28 Vict. 
 " c. 47), or to be imprispned for any 
 " term not exceeding two years, 
 " with or without hard labour, and 
 " with or without solitary confine- 
 " ment." {Previous provision, 7 
 Will.' 4 & 1 Vict. c. 85, s. 4.) 
 
 As to what are loaded arms, see 
 sect. 19. 
 
 By s. 20, " whosoever shall un- 
 " lawfully and maliciously wound 
 " or inflict any grievous bodily 
 " harm upon any other person, 
 " either with or -without any weap- 
 " on or instrument, shall be guilty 
 
 " of a misdemeanor, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for the 
 " term of five years (27 & 28 Vict. 
 " c. 47), or to be imprisoned for 
 " any term not exceeding two years, 
 " with or without hard labour." 
 (Former provision, 14 & 15 Vict. c. 
 19, s. 4.) 
 
 Ouiting.'\ — On an indictment for 
 maliciously cutting, malice against 
 the individual cut is not essential, 
 general malice is sufficient. Rex v. 
 "Hunt, 1 M. C. C. 93. 
 
 The question is not what the 
 wound is, but what wound was in- 
 tended. Ih. 
 
 Where a party having a deadly 
 weapon lawfully in his possession in 
 his own defence, but without hav- 
 ing previously retreated as far as 
 possible, cut a person who was as- 
 saulting, he was guilty of felony, 
 under 7 Will. 4 & 1 Vict. c. 85, s. 
 4, if he intended grievous bodily 
 harm. Reg. v. Odgers, 2 M. & Rob. 
 479— Cresswell. 
 
 Cutting a female child's private 
 parts, so as to enlarge them for the 
 time, was considered as doing her 
 grievous bodily harm, within 43 
 Geo. 3, c. 58, and done with that 
 intent, although the hymen was not 
 injured, the incision was not deep, 
 and the wound eventually was not 
 dangerous. Rex v. Cox, R. & R. 
 C.C. 362-, 1 Leach, C. C. 71. 
 
 A striking over the face and head 
 with the sharp or the claw part of 
 a hammer was a sufiioient cutting, 
 within 43 Geo. 3, c. 58. Rex v. 
 Atkinson, R. & R. C. C. 104. 
 
 On an indictment for cutting, it 
 appeared that the prisoner was seen 
 in the night entering an outhouse 
 with intent to commit a felony, by 
 a persoh who went and informed 
 the prosecutor of it. The latter in 
 about a quarter of an hour went in 
 search of the prisoner to apprehend 
 him. The prisoner had left the 
 prosecutor's premises, and was found 
 
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GRIEVOUS BODILY HARM. 
 
 359 
 
 in a neighbouring garden, crouched 
 down under a tree, with a drawn 
 sword in his hand. The prosecutor 
 apprehended the prisoner, who cut 
 and wounded him. It was objected 
 that the prosecutor had no right to 
 apprehend the prisoner, and that if 
 death had ensued, it would have 
 been manslaughter only. The pris- 
 oner was convicted, and the judges 
 held the conviction right. Itex v. 
 Howorth, Car. Supp. 231 ; 1 M. C. 
 C. 207. 
 
 On a charge of feloniously cut- 
 ting, with intent to do grievous 
 bodily liarm, it was immaterial 
 whether, if death had ensued, the 
 crime would have been murder or 
 manslaughter. Req. v. Mcholls, 9 
 C. & P. 267— Gurney. 
 
 Wounding. ] — To constitute a 
 wound it is necessary that there 
 should be a separation of the whole 
 skin ; and a separation of the cuticle 
 or upper skin only is not sufficient. 
 Meg. V. M'Loughlin, 8 C. & P. 635 
 — Coleridge. 
 
 In criminal cases, the definition 
 of a wound is, an injury to the per- 
 son by which the sldn is broken. 
 Moriarty v. Brooks, 6 C. & P. 684 
 — Lyndhurst ; S. P., JRex v. Beck- 
 ett, 1 M. & Rob. 526— Parke. 
 
 A blow given with a hammer on 
 the face, which broke the lower jaw 
 in two places ; the skin was broken 
 internally, but not externally, and 
 there was not much blood, was a 
 wounding within 7 Will. 4 & 1 
 Vict. c. 85, s. 4. JReg. v. Smith, 8 
 C. & P. 173— Parke. 
 
 A. asked pei-mission at the house 
 of B. to go and take some ashes, 
 which he was allowed to do ; but 
 as he was coming out B.'s appren- 
 tice saw a copper tea-kettle among 
 the ashes in A.'s basket, and told B. 
 B. laid hold of A. to secure him, on 
 the charge of stealing the tea-kettle, 
 and in a scuffle A. and B. fell, and 
 A. cut B. with a knife : — Held, to 
 be a wounding within 7 Will. 4 & 
 1 Vict. c. 85, s. 4, provided that 
 
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 the jury was satisfied that A. had 
 stolen the kettle, as B. had then a 
 right to apprehend him. Heg. v. 
 Price, 8 C. & P. 282— Alderson. 
 
 Evidence of a violent kick on the 
 private parts of a woman, which 
 caused a flow of blood mingled 
 with urine, for some time after- 
 wards, was not a wounding within 
 7 Will. 4 & 1 Vict. c. 85, s. 4, no 
 proof being given as to the precise 
 point whence the blood originally 
 came. Meg. v. Jones, 3 Cox, C. C. 
 441. 
 
 A rupture of the lining mem- 
 brane of the urethra, followed by a 
 small flow, such rapture being 
 caused by a kick on the private 
 parts of the prosecutor, is a wound- 
 ing within 7 Will. 4 & 1 Vict. c. 
 85, s. 4. Meg. v. Wakham, 8 Cox, 
 C. C. 442. 
 
 To constitute the offence of 
 wounding with intent to do grievous 
 bodily harm, under 7 Will. 4 & 1 
 Vict. c. 85, s. 4, the wound mui5t be 
 direct, and therefore an injury occa- 
 sioned by the prosecutor falling on 
 some iron trams in consequence of 
 a blow from the prisoner, was not 
 within that statute. Meg. v. Spooner, 
 6 Cox, C. C. 392.— Talfourd. 
 
 In a case of wounding with in- 
 tent to do grievous bodily harm, it 
 is not essential that, if death had 
 ensued, the offence of the j)risoner 
 should be murder ; therefore, if it 
 appears that, had death ensued, the 
 oifence would be manslaughter only, 
 this is no ground of acquittal of the 
 felony. Meg. v. Griffiths, 8 C. &. P. 
 248 ;■ 2 M. C. C. 40. 
 
 A broker and his man having 
 levied a distress for rent, the man 
 left in possession was ejected. The 
 owner of the goods was not in the 
 room at the time of the levy, and it 
 was not proved that he was a party 
 to the turning out of tlie man, or 
 that he knew of the distress being 
 levied, but on the broker and his 
 assistants breaking open the outer 
 door to re-enter, the prisoner struck 
 one of the assistants with an axe on 
 
360 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 the forehead: — Held, that, under 
 these circumstances, the prisoner 
 must at least be found guilty of an 
 assault ; and also, that, although he 
 miglit be found guilty of wounding, 
 with intent to do grievous bodily 
 harm, yet he could not be found 
 guilty of wounding, with intent to 
 maim and disable. Reg. v. Sullivan, 
 Car. & M. 209— Parke. 
 
 Where three persons were indict- 
 ed jointly for cutting and wounding, 
 and the third of them did not come 
 up to the spot until after one of the 
 first two had got away, and then 
 kicked the prosecutor while he was 
 on the gi-ound struggling with the 
 other : — Held, that the two who 
 jointly assaulted the prosecutor, and 
 wounded him at first, might be 
 found guilty either of the felony, or 
 of the assault only, but that the 
 third must, under the circumstan- 
 ces, be acquitted altogether. Reg. 
 V. M'Phane, Car. & M. 212— Tin- 
 dal. 
 
 On an indictment for wounding, 
 with intent to do some giievous 
 bodily harm, it appeared that two 
 persons, one of whom was the pris- 
 oner, attacked and wounded the 
 prosecutor, and robbed him ; it was 
 not proved which of the persons in- 
 flicted the wound : — Held, that if 
 the prisoner inflicted the wound on 
 the prosecutor, with intent to rob 
 him, he having at the same time an 
 intent to do him some grievous bod- 
 ily harm to effectuate such his in- 
 tention of robbing, he ought to be 
 convicted on this indictment. Reg. 
 V. Bowen, Car. & M. 149— Cole- 
 ridge. 
 
 Held, also, that even if the pris- 
 oner's was not the hand that inflict- 
 ed the wound, he ought to be con- 
 victed, if the jury was satisfied that 
 the two persons were engaged in 
 the common purpose of robbing the 
 prosecutor, and that the other per- 
 son's was the hand which inflicted 
 the wound. Ih. 
 
 On an indictment for wounding, 
 the jury, upon the question wheth- 
 
 er, if death had ensued, the offence 
 would have been murder, should 
 consider whether the instrument 
 employed was, in its ordinary use, 
 likely to cause death ; or if it is an 
 instrument not likely, under ordin- 
 ary circumstances, to cause death, 
 whether it was used in such an ex- 
 traordinary manner as to make it 
 likely to cause death, either by con- 
 tinual blows or otherwise. jRex v. 
 Howlett, 7 C. & P. 274— Alderson. 
 
 Cases under the Repealed Statute 
 of 9 Geo. 4, c. 31, ss. 11, 12.]— 
 Breaking a person's collar bone, 
 and bruising him, was not a wound- 
 ing within 9 Geo. 4, c. 31, s. 12. 
 Rex V. Wood, 4 C. & P. 381. 
 
 If a person, for the purpose of 
 accomplishing a robbery, wounded 
 by means of lucking the shins of the 
 party whom he was endeavoring to 
 rob, he was punishable under 9 Geo. 
 4, c. 31, s. 12, if the jury found that 
 his intent was either to disable or 
 do grievous bodily harm. Rex v. 
 ShadboU, 5 C. & P. 504— Denman 
 and Vaughan. 
 
 Biting off the end of a person's 
 nose was not a wounding within 9 
 Geo. 4, c. 31, s. 12 ; nor was biting 
 off a joint from a person's finger, as 
 the statute was intended only to 
 apply to wounding produced by 
 some instrument, and not by the 
 hands or teeth, ^ea; v. Harris, 7 
 C. & P. 446— Patteson ; S. P., Jen- 
 ning''s case, 2 Lewin, C. C. 130 — Al- 
 derson. 
 
 But a wound from a kick with a 
 shoe was within 9 Geo. 4, c. 31. s. 
 12. Rex V. Briggs, 1 M. C. C. 318 ; 
 1 Lewin,-C. C. 61. 
 
 The prisoner struck the prosecii- 
 tor on the side of his hat with an 
 air-gun, with great force, by which 
 the prosecutor was wounded, but 
 the wound was made by the vio- 
 lence with which the hat was struck, 
 the weapon used by the prisoner 
 never coming in contact with the 
 head of the prosecutor : — Held, a 
 wounding within 9 Geo. 4, c. 31, ss. 
 
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GRIEVOUS BODILY HARM. 
 
 361 
 
 11 & 12. Bexy. Sheard, 7 C. & 
 P. 846. 
 _ Maliciously throwing oil of vit- 
 riol ovev the prosecutor's face, with 
 intent to disfigure, and so wounding 
 his face, was not a wounding with- 
 in 9 Geo. 4, c. 31, s. 12. Rex v. 
 Murrow, 1 M. C. C. 456 ; S. P., 
 HenshaWs case, 2 Lewin, C. 0. 135. 
 
 Inflicting a wound on a person by 
 throwing a sledge-hammer at him, 
 was a wounding within 9 Geo. 4, c. 
 31, ss. 11, 12, although the sledge- 
 hammer, from being blunt, was not 
 an instrument calculated to inflict a 
 wound. Hex v. Withers, 4 C. & 
 P. 446 ; 1 M. C. C. 294. 
 
 If a person struck another with a 
 bludgeon, and broke the skin and 
 drew blood, this was a sufficient 
 wounding within 9 Geo. 4, c. 31, ss. 
 11, 12. Bex V. Payne, 4 C. & P. 
 558 — Patteson. 
 
 Indictment.^ — On an indictment 
 for wounding with intent, the ac- 
 tual intent must be proved. Beg. 
 V. Cod:, 1 F. & F. 664— Bramwell. 
 
 A party may be guilty of unlaw- 
 fully wounding, though there is no 
 intent to wound, if the weapon used 
 is calculated to wound, and known 
 to be such. lb. 
 
 In an indictment for wounding 
 with intent to murder, the instru- 
 ment or means by which the mur- 
 der was inflicted need not be stated, 
 and, if stated, do not confine the 
 prosecutor to prove a wound by 
 such means. Bex v. Briggs, 1 M. C. 
 C. 318; 1 Lewin, C.C. 61. 
 
 An indictment for cutting and 
 wounding, which charged the of- 
 fence to have been committed " fel- 
 oniously, wilfully and maliciously," 
 was bad, the words of 9 Geo. 4, c. 
 31, ss. 11 & 12, being " unlawfully 
 and maliciously." Bex v. Byan, 7 
 C. &P. 854; 2M. C. C. 15. 
 
 Grievous Bodily Harm.']— Where 
 a woman jumps out of a window 
 for the purpose of avoiding the vio- 
 lence of her husband, and sustains 
 Fish. Dig.— 27 
 
 dangerous bodily injury, the hus- 
 band cannot be convicted of an at- 
 tempt to murder, unless he intended 
 by his conduct to make her jump 
 out of the window. Beg. v. Bono- 
 van, 4 Cox, C. C. 399— Alderson. 
 
 A woman left her infant child, on 
 a cold wet day, exposed in an open 
 field, intending that it should die. 
 It was found there after some hours, 
 nearly dead from congestion of the 
 lungs and heart, the effects of the 
 exposure. By care, however, the 
 child was restored in a few h ours, and 
 there then remained no bodily injury 
 either to the lungs or heart, or other- 
 wise : — Held, that a conviction un- 
 der 7 Will. 4 & 1 Vict. c. 85, s. 2, 
 for causing a bodily injury danger- 
 ous to life, could not be supported, 
 as there was no lesion of any part of 
 the organs of the child. Beg. v. 
 Gray, Dears. & B. C. C. 303 ; 7 
 Cox, 0. C. 326 ; 3 Jur., N. S. 989 ; 
 26 L. J., M. C. 203. 
 
 To constitute grievous bodily 
 harm it is not necessary that the 
 injury should be either permanent 
 or daiigerous ; if it is such as seri- 
 ously to interfere with comfort or 
 health, it is sufficient. Beg. v. 
 Ashinan, 1 F. & F. 88— Willes. 
 
 Where a party strikes at A., and 
 B., interposing, receives the blow, 
 he cannot be convicted of wound- 
 ing with intent to do grievous bodi- 
 ly harm to B. The use of a deadly 
 weapon is not justifiable in repel- 
 ling a common assault ; there must 
 be the apprehension of serious bodi- 
 ly danger or of robbery, or some 
 similar offence of violence. Beg. 
 V. Hewlett, 1 F. & F. 91— Crowder. 
 
 Verdict.']— Bj 14 & 15 Vict. c. 
 19, s. 5, (unrepealed), " if upon the 
 " trial of any indictment for any 
 " felony, except murder or man- 
 " slaughter, where the indictment 
 " alleges that the defendant did 
 " cut, stab or wound any person, 
 " the jury shall be satisfied that 
 " the defendant is guilty of the 
 " cutting, stabbing or wounding 
 
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362 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 "charged -in the indictment, but 
 " are not satisfied that the defend- 
 " ant is guilty of the felony charged, 
 " the jury may acquit the defend- 
 " ant of- such felony, and find him 
 " guilty of unlawfully cutting, stab- 
 " bing or wounding, and the de- 
 " fendant shall be liable to be pun- 
 "ished in the same manner as if 
 " convicted upon an indictment for 
 " the misdemeanor of cutting, stab- 
 " bing or wounding. 
 
 Where a prisoner is indicted for 
 feloniously cutting and wounding, 
 he will not be permitted to plead 
 guilty to a common assault merely. 
 He must plead to the felony, and if 
 no evidence of the felony is offered 
 he may be acquitted of the felony 
 ■and found guilty of the assault on 
 his own confession. lieg. v. Gai- 
 ■vert, 3 0. & K. 201— Maule. 
 
 A., an under servant, who had 
 lost his right arm, was beaten by 
 B., -an upper servant, for miscon- 
 duct. A. took out a knife and 
 wounded B, : — Held, on a trial for 
 feloniously wounding, that if A. 
 did this in self-defence only he 
 ought to be acquitted ; but if A. 
 used more violence than was neces- 
 sary for that purpose he ought to 
 be convicted of the misdemeanor 
 of wounding only, under 14 & 15 
 Vict. c. 12, s. 5. Reg. v. Huntley, 
 .3C.,&K. 142— Piatt. 
 
 To an indictment for stabbing, 
 was added a count for a common 
 assault. The trial had considera- 
 bly advanced before this was dis- 
 covered, and the judge allowed the 
 case to proceed, and left it to the 
 jury without noticing the count for 
 the common assault. The jury re- 
 turned a verdict of guilty, which 
 was entered on the count for stab- 
 bing with intent to do grievous 
 bodily harm. The judges held the 
 conviction right. Reg. v. Jones, 
 8 C. & P. 776 ; 2 M. C. 0. 94. 
 
 An indictment contained counts 
 charging an assault, and unlaw- 
 
 fully and maliciously inflicting 
 grievous bodily harm, and also a 
 count for a common assault. At 
 the trial evidence was given that 
 the prisoner inflicted serious bodily 
 injuries upon the prosecutor. The 
 jury found the piisoner guilty of 
 an aggravated assault without pre- 
 meditation, and that it was done 
 under the iinfluence of passion : — 
 Held, that the verdict was rightly 
 entered on the record on the counts 
 charging an assault and unlawfully 
 and maliciously inflicting grievous 
 bodily harm. Req. v. Sparrow, 8 
 Cox, C. C. 393 ; Bell, C. C. 298 ; 
 30 L. J., M. C. 43. 
 
 Upon a count for assaulting, 
 beating, wounding, and occasion- 
 ing actual bodily harm against the 
 statute, the prisoner may be con- 
 victed of a common assault. Reg. 
 V. Oliver, 8 Cox, C. C. 384; Bell, 
 C. C. 287; SOL. J., M. C. 12. 
 
 Upon an indictment charging the 
 defendants in the first count with 
 inflicting grievous bodily harm ; in 
 the second count with unlawfully 
 and maliciously cutting, stabbing 
 and wounding ; and in the third 
 count with assaulting and occasion- 
 ing actual bodily harm ; the jury 
 returned a verdict of guilty of a 
 common assault. The chairman 
 declined to take that verdict, on 
 the ground that a common assault 
 was not included in the indictment, 
 and told the jury to reconsider 
 their verdict. The jury then found 
 the defendants guilty, and a verdict 
 was entered of guilty of an assault 
 occasioning bodily harm, where- 
 upon the chairman sentenced the 
 prisoners : — Held, that the first 
 verdict ought to have been taken, 
 and that the second ought not, and 
 that the prisoners ought not to un- 
 dergo the sentence ; that there had 
 been a mis-trial, and that a venire 
 de novo should issue. Reg. v. Yea- 
 don, 9 Cox, C. C. 91 ; 31 L. J.. 
 M. C. 10. 
 
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RESISTING APPREHENSION. 
 
 363 
 
 (e) JBy Resisting or Preventing Ap- 
 prehension or Detainer of Per- 
 sons. 
 
 On an indictment for stabbing, 
 with intent to re.-ist lawful appre- 
 hension, it must be shewn that the 
 officer was either present or came 
 armed with a warrant. Rex v. Dy- 
 son, 1 Stark. 24C — Le Blanc. 
 
 The offence of maliciously cut- 
 ting, with intent to resist lawful ap- 
 prehension, is not committed where 
 the party has no notice of the pur- 
 pose of the officers. Rex v. Rick- 
 etts, 3 Camp. 68. 
 
 A prisoner was indicted for cut- 
 ting and maiming with intent to 
 prevent his apprehensiop for an 
 offijnce for which he was liable to 
 be apprehended, to wit, for that he 
 did violently assault and beat A. 
 He was taken before the magis- 
 trates by the prosecutor, on a war- 
 rant directed to him for an assault 
 on A., and ordered to find bail, 
 which he refused to do, and whilst 
 the commitment was being made 
 out escaped. The prosecutor, by 
 verbal directions of the magis- 
 trates, pursued the prisoner, and, 
 in attempting to apprehend him, he 
 was cut by him : — Held, well con- 
 victed, and that the offence was 
 rightly described. Rex v. Wil- 
 liams', 1 M. C. G. 387. 
 
 A constable who had verbal di- 
 rections from the magistrates to 
 apprehend all persons playing at 
 thimblerig, attempted to appre- 
 hend the prisoner and his compan- 
 ions playing at thimblerig in a pub- 
 lic fair. The constable, with assist- 
 ance, took one of the party ; but 
 the prisoner and the rest rescued 
 him and got off. In the evening 
 of the same day the constable 
 found the prisoner in a public- 
 house, not having been able to find 
 him before, and endeavoured to 
 apprehend him, stating it was for 
 what he had been doing at the fair. 
 He escaped into a privy, and the 
 constable called the prosecutor to 
 his assistance, and toarethfer .the 
 
 B^fe*^ 
 
 broke open the privy-door, and en- 
 deavoured to take him, who there- 
 upon stabbed the prosecutor. A 
 conviction for feloniously cutting 
 and maiming was held wrong. Rex 
 V. Gardener, 1 M. C. C. 390. 
 
 A conviction on an indictment 
 for maliciously cutthig a police 
 officer, with intent to resist and 
 prevent the arrest and detainer of 
 a prisoner for a certain offence, for 
 which he was liable by law to be 
 apprehended and detained, viz., for 
 committing damage and injury up- 
 on certain plants and roots in a 
 garden, is good. Rex v. J^raser, 
 1 M. C. C. 419. 
 
 A gamekeeper, accompanied by 
 his assistant, met four poachers on 
 the highway, one carrying a gun, 
 another a gun barrel, and the other 
 two bludgeons. There had been 
 previously two shots fired. The 
 gamekeeper said to his assistant, 
 " Mind the gun," and the assist- 
 ant laid hold of it, and then the 
 gamekeeper called to another per- 
 son ; upon this three of the poach- 
 ers knocked him down and stunned 
 him, and when he came to himself 
 he saw all of them near, and one 
 said as they passed him, " D — n 
 them, we have done them both," 
 and one turned back and cut him 
 on the left leg, and all then ran 
 away. It was objected, first, that 
 the wounding of the leg was the 
 act of one alone, and there was no . 
 evidence to shew which of them it 
 was ; — secondly, that, from the ex- 
 pressions used, it was evident that 
 both were thought to be dead, and 
 there could be no intent to murder ; 
 — and thirdly, that the prisoner be- 
 ing on the highway, the gamekeep- 
 er and his assistant had no right to 
 interfere with them. The prisoners 
 were convicted, and the judges held 
 the conviction right. Rex v. War- 
 ner, 5 C. & P. 525 ; 1 M. C. C. 
 380. 
 
 On an indictment for cutting and 
 maiming with intent to do grievous 
 bodily ,5^nn, a prisoner nlay be 
 
 MicrosbM 
 
364 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 convicted whose main and princi- 
 pal intent was to prevent his lawful 
 appreliension, or, in order to effect 
 the latter intent, he also intended 
 to murder, or do grievous bodily 
 harm. Rex v. Gillow, 1 M. C. C. 
 85 ; 1 Lewin, C. C. 67. See Rex 
 V. Thompson, 1 M. C. C. 80 ; Rex 
 V. Davis, 1 C. & P. 306. 
 
 A police-officer, having been as- 
 saulted by W., attempted, two 
 hours afterwards, to take him into 
 custody. W. resisted and wounded 
 the officer : — Held, that the appre- 
 hension would not have been law- 
 ful, and that W. could not be con- 
 victed of wounding with intent to 
 prevent his lawful apprehension. 
 Reg. V. Walker, 2 C. L. R. 48.5 ; 
 Dears. C. C. 358 ; 23 L. J., M. C. 
 123; 6 Cox, C. C. 371. 
 
 An indictment under 43 Geo. 3, 
 c. 58, for cutting and maiming 
 with intent to murder and disable, 
 was not supported by evidence of 
 a cutting with intent to produce a 
 temporary disability in a person 
 lawfully apprehending the prisoner 
 until he could effect his own escape. 
 Rex V. Boyce, 1 M. C. C. 29. 
 
 In an indictment on 43 Geo. 3, c. 
 58, the intent laid in several counts 
 was to murder, to disable, or to do 
 some grievous bodily harm ; the 
 intent found by the jury was to 
 prevent being apprehended : — Held, 
 that the conviction was bad, for 
 that, if the intent was to prevent 
 the lawful apprehension of the pris- 
 oner, it should be laid so. Rex v. 
 Duffin, R. & R. C. C. 365 ; 1 East, 
 P. O. 437. 
 
 (f ) Ry means of Gunpowder, Ex- 
 plosive Substances, or other Dan- 
 gerous Things. 
 
 With Intent to Murder.]— By 24 
 & 25 Vict. c. 100, s. 12, "whoso- 
 " ever, by the explosion of gun- 
 " powder or other explosive sub- 
 " stance, shall destroy or damage 
 " any building with intent to com- 
 " mit murder, shall be guilty of 
 " felony, and, being convicted there- 
 
 " of shall be liable, at the discre- 
 " tion of the court, to be kept in 
 " penal servitude for life, or for any 
 " term not less than five years (27 
 " & 28 Vict. c. 47), or to be impris- 
 " oned for any term not exceeding 
 " two years, with or without hard 
 " labour, and with or without soli- 
 " tary confinement." (Jformer en- 
 actment, 9 & 10 Vict.-c. 25, s. 2.) 
 
 Upon a charge of murdering a 
 person named by means of explo- 
 sive grenades, evidence of the death 
 and wounds suffered by others at 
 the same time, is admissible for the 
 purpose of proving the character 
 of the grenades. Reg. v. Remard, 
 1 F. & F. 240— Campbell. 
 
 A witness being called to prove 
 that he manufactured certain gren- 
 ades, by which the death in ques- 
 tion had been caused : — Held, that 
 the name of the person who gave 
 the order for them might be asked 
 as a fact in the ti-ansaction, even 
 though he had not then been shewn 
 to be connected with the prisoner. 
 lb. 
 
 With Intent to Inflict Grievous 
 Bodily Harm.l—Bj 24 & 25 Vict. 
 c. 100, s. 28, " wliosoever shall un- 
 " lawfully and maliciously, by the 
 " explosion of gunpowder or other 
 " explosive substance, burn, maim, 
 " disfigure, disable, or do any griev- 
 " ous bodily .harm to any person, 
 " shall be guilty of felony, and, 
 " being convicted thereof, shall be 
 " liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for life, or for any term not 
 " less than five years (27 & 28 
 " Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard la- 
 " bour, and with or without soli- 
 " tary confinement, and, if a male 
 " under the age of sixteen years, 
 " with orwitliout whipping." {Fw- 
 mer provision, 9 & 10 Vict. c. 2'5, 
 s. 3.) 
 
 By s. 29, " whosoever shall un- 
 " lawfully and maliciously cause 
 
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SETTING FIRE TO SHIPS. 
 
 365 
 
 " any gunpowder or other explo- 
 " five substance to explode, or send 
 " or deliver to or caufe to be taken 
 " or received by any person any 
 " explosive substance or any other 
 " dangerous or noxious thing, or 
 " put or lay at any place, or cast 
 " or throw at or upon or otherwise 
 " apply to any person, any corro- 
 " sive fluid or any destructive or 
 " explosive substance, with intent 
 " in any of the cases aforesaid to 
 " burn, maim, disfigure, or disable 
 " any person, or to do some griev- 
 " ous bodily harm to any person, 
 "shall, whether any bodily injm-y 
 " be effected or not, be guilty of 
 " felony." {Punishment the same 
 as in the last section. Former pro- 
 visions, 9 & 10 Vict. c. 25, s. 1 ; 7 
 Will. 4 & 1 Vict. c. 85, s. 5.) 
 
 Boilins water was a dangerous 
 thing within the latter act. Meg. v. 
 Crawford, 2 C. & K. 129-Rolfe. 
 
 A woman pouring boiling water 
 over the face and into the ear of 
 her husband while he was asleep, 
 whereby he was temporarily blind, 
 and permanently deaf on one side : 
 — Held, that she might be convict- 
 ed of felony under 7 Will. 4 & 1 
 Vict. c. 85, s. 5. lb. 
 
 By s. 30, " whosoever shall un- 
 " lawfully and maliciously place or 
 " throw in, into, upon, against, or 
 " near any building, ship, or vessel, 
 " any gunpowder or other explosive 
 " substance, with intent to do any 
 " bodily injury to any person, shall, 
 " whether or not any explosion take 
 " place, and whether or not any 
 " bodily injury be effected, be guilty 
 " of felony, and, being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be kept 
 " in penal servitude for any term 
 " not exceeding fourteen years, and 
 " not less than five years (27 & 28 
 "Vict. c. 47), or to be imprisoned 
 '.' for any term not exceeding two 
 " years, with or without hard la- 
 " bour, and with or without soli- 
 " tary confinement, and if a male 
 " under the age of sixteen yearr 
 
 Digitized by Microsoft® 
 
 " with or without whipping." {i^or- 
 mer provision, 9 & 10 Vict. c. 25, 
 s. 6.) 
 
 (g) £y setting Fire to or casting 
 away Ships. 
 By 24 & 25 Vict. c. 100, s. 13, 
 " whosoever shall set fire to any 
 " ship or vessel, or any part thereof, 
 " or any part of the tackle, apparel, 
 " or furniture thereof, or any goods 
 " or chattels being therein, or shall 
 " cast away or destroy any ship or 
 " vessel, with intent in any such 
 " cases to commit murder, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for life, or 
 " for any term not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any tei-m not 
 " exceeding two years, with or with- 
 " out hard labour, and with or 
 " without solitary confinement." 
 (Former enactment, 7 Will. 4 & 1 
 Vict. c. 89, s. 4.) 
 
 (h) Preventing Rescue from Ship- 
 wreck. 
 By 24 & 25 Vict. c. 100, s. 17, 
 " whosoever shall unlawfully and 
 " maliciously prevent or impede any 
 " person, being on board of or hav- 
 "ing quitted any ship or vessel 
 " which shall be in distress or wreck- 
 " ed, stranded, or cast on shore, in 
 " his endeavour to save his life, or 
 " shall unlawfully and maliciously 
 " prevent or impede any person in 
 " his eudeavpur to fave the life 
 " of any such person as in this 
 " section first aforesaid, shall be 
 "guilty of felony." {Punishment 
 same as in last section. Former 
 provision, 7 Will. 4 & 1 Vict. c. 
 89, s. 7.) 
 
 (i) By other Means. 
 
 By 24 & 25 Vict. c. 100, s. 15, 
 " whosoever shall, by any means 
 " other than those specified in any 
 " of the preceding sections of this 
 " act, attempt to commit murder, 
 
366 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 " shall be guilty of felony." {Pun- 
 ishment same as in the last hut one 
 preceding section.) 
 
 7. By Spring Guns. 
 
 By 24 & 25 Vict. c. 100, s. 31, 
 " whosoever shall set or place, or 
 " cause to be set or placed, any 
 " spring gun, man trap, or other en- 
 " gine calculated to destroy human 
 " life or inflict grievous bodily hann, 
 " with the intent that the fame or 
 " whereby the fame may destroy or 
 " inflict grievous bodily harm upon 
 " a trespasser or other person com- 
 "ing in contact therewith, shall be 
 " guilty of a misdemeanor, and, 
 " being convicted thereof, shall be 
 " liable, at the discretion of the 
 " court, to be kept iu penal servi- 
 " tude for the term of five years (27 
 " & 28 Vict. c. 47), or to be impris- 
 " oned for any term not exceeding 
 " two years, with or without hard 
 " labour. 
 
 " And whosoever shall knowingly 
 " and wilfully permit any such 
 " spring gun, man trap, or other en- 
 " gine, which may have been set or 
 " placed in any place then being in, 
 " or afterwards coming into, his 
 " possession or occupation, by some 
 " other person, to continue so set or 
 " placed, shall be deemed to have 
 " set and placed such gun, trap, or 
 " engine with such intent as afore- 
 " said. 
 
 " Provided, that nothing in this 
 " section contained shall extend to 
 " make it illegal to set or place any 
 " gin or trap, such as may have 
 " been or may be usually set or 
 " placed with, the intent of destroy- 
 " ing vermin." 
 
 " Provided also, that nothing in 
 " this section shall be deemed to 
 " make it unlawful to set or place, 
 " or cause to be set or placed, or 
 " to be continued set or placed, 
 " from sunset to sunrise, any spring 
 " gun, man trap or other engine 
 " which shall be set or placed, or 
 " caused or continued to be set or 
 " placed, in a dwelling-house for the 
 
 " protection thereof." {Former pro- 
 vision, 7 & 8 Geo. 4, c. 18, ss. 1, 2, 
 3,4.) 
 
 Tlie plaintiff entered tlie defend- 
 ant's garden at night, and without 
 his permission, to search for a stray 
 fowl, and, whilst looking closely 
 into some bushes, he came in con- 
 tact with a wire, which caused 
 something to explode with a loud 
 noise, knocking him down and 
 slightly injuring his face and eyes : 
 — Held, in an action, that the de- 
 fendant was not liable for this in- 
 jury at common law, or in the ab- 
 sence of evidence that it was caused 
 by a spring gun or other engine 
 calculated to inflict grievous bodily 
 harm, under 7 & 8 Geo. 4, c. 18, s. 
 1. Wootton V. Bawkins, 2 C. B., N". 
 S. 412. 
 
 (8) Illtreating Ghildren, Appren- 
 tices, Servants, Idiots and Help- 
 less Persons. 
 
 (a) The Offence. 
 
 Statute.}— 'Qy 24 & 25 Vict. c. 
 100, s. 26, " whosoever, being le- 
 " gaily liable, either as a master or 
 " mistress, to provide for any ap- 
 " prentice or servant necessary food, 
 " clothing, or lodging, shall wilfully 
 " and without lawful excuse refuse 
 " or neglect to provide the same, or 
 " shall unlawfully and maliciously 
 " do or cause to be done any bodily 
 " harm to any such apprentice or 
 " servant, so "that the life of such 
 " apprentice or servant shall be en- 
 " dangered, or the health of such ap- 
 " prentice or servant shall have been 
 " or shall be likely to be, permanent- 
 " ly injured, shall be guilty of a 
 " misdemeanor, and,being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for the term of five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour. {Former provis- 
 ion, 14 & 15 Vict. c. 11, s. 1.) 
 
 By s. 27, " whosoever shall un- 
 
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ILL-TREATING CHILDREN, ETC. 
 
 367 
 
 " lawfully abandon or expose any 
 " child, being under the age of two 
 *' years, whereby the life of such 
 ■" child shall be endangered, or the 
 " health of such child shall have 
 " been or shall be likely to be per- 
 " manently injured, shall be guilty 
 " of a misdemeanor, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for the 
 " term of iive years (27 & 28 Vict. 
 " c. 47), or to be imprisoned for 
 " any term not exceeding two years, 
 " with or without hard labour." 
 
 Children and Helpless Persons.] — 
 It is a misdemeanor to refuse or 
 neglect to provide sufficient food or 
 other necessaries for any infant of 
 tender years, unable to provide for 
 and take care of itself (whether such 
 infant is a child, an apprentice, or a 
 servant whom the party is obliged 
 by duty or contract to provide for), 
 so as thereby to injure his healtih. 
 Hex. V. Frietid, R. & R. C. C. 20— 
 Bayley. And see Hex v. Squire, 1 
 Russ. C. & M. 80, 078. 
 
 A single woman, the mother of 
 an infant child, was indicted for ne- 
 glecting to provide it with sufficient 
 food, the indictment alleging that 
 she was able, and had the means so 
 to do. There was no evidence of 
 the actual possession of means by 
 the mother ; but it was proved that 
 she could have applied to the re- 
 lieving officer of the union, and that 
 if she had so applied, she would 
 have been entitled to and would have 
 received relief adequate to the due 
 support and maintenance of herself 
 and child : — Held, that the allega- 
 tion in the indictment was not sup- 
 ported by this evidence. Heff. v. 
 Chandler, Dears. C. C. 453 ; 1 Jur., 
 N. S. 429 ; 24 L. J., M. C. 109 ; 3 
 C. L. R. 680. 
 
 If parents have not the means of 
 providing proper food and nourish- 
 ment for their infant children who 
 are incapable of taking care of 
 themselves, it is their duty to apply 
 
 for the assistance provided by means 
 of the poor laws. Heg. v. Mabbett, 
 5 Cox, C. C. 339. 
 
 A married woman who, having 
 a child under such circumstances, 
 wilfully neglects for several days 
 going to the union for the purpose 
 of getting support for it, she know- 
 ing that such neglect is likely to 
 cause the child's death, is guilty of 
 manslaughter. Ih. 
 
 Where any person undertaking 
 the duty of supplying an infant 
 with proper food and clothing, and 
 furnished with the means of dis- 
 charging that duty properly, wilful- 
 ly neglects to do so, with an inten- 
 tion to cause the death of the child, 
 or to do it some grievous injury, 
 and the child dies in consequence of 
 such neglect, such person is guilty 
 of murder. Where the neglect is 
 culpable only, and not malicious, 
 such person is guilty of manslaugh- 
 ter. Where a parent supplies suffi- 
 cient food and clothing to another 
 for the purpose of administering to 
 his child, and that other person wil- 
 fully withholds it from the child, 
 and the parent is conscious that it 
 is so withheld, and does not inter- 
 fere, and the child dies for want of 
 proper food and clothing, the parent 
 is guilty of manslaughter. Heg, v. 
 Bubb, 4 Cox, C. C. 455. 
 
 A married woman cannot be con- 
 victed of the murder of her illegiti- 
 mate child three years old, by omit- 
 ting to supply it with proper food, 
 unless it is shewn that her husband 
 supplied her with food to give to 
 the child, and that she wilfully ne- 
 glected to give it. Rex v. Saun- 
 ders, 7 C. & P. 277— Alderson. 
 
 A count charged a married wo- 
 man with the murder of her illegit- 
 imate child of three years old, by 
 omitting to supply it with sufficient 
 food, and also by beating ; it was 
 not shewn that her husband had 
 supplied her with food to give to 
 the child : — Held, that this count 
 could not bs supported. lb. 
 
 An unmarried woman, eighteen 
 
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368 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 years of age, who usually supported 
 herself by her own labour, being 
 about to be confined, returned to 
 the house of her stepfather and 
 her mother. She was taken in la- 
 bour (the stepfather being absent at 
 his work), and in consequence of 
 the mother's neglect to use ordinary 
 diligence in pi'ocuring the assistance 
 of a midwife, the daughter died in 
 her confinement. There was no 
 proof that the mother had any 
 means of paying for the services of 
 a midwife : — Held, that no legal 
 duty was cast upon the mother to 
 procure a midwife, and therefore 
 that she could not bs convicted of 
 the manslaughter of her daughter. 
 Reg. V. Shepherd., 9 Cox, C. C. 1 23 ; 
 L. & C. 147 ; 8 Jur., N. S. 418 ; 31 
 L. J., M. C. 102 ; 10 W. R. 297 ; 5 
 L. T., N. S. G87. 
 
 On an indictment for the murder 
 of an aged and infirm woman, by 
 confining her against her will, and 
 not providing her with meat, drink, 
 clothing, firing, medicines and other 
 necessaries, and not allowing her 
 the enjoyment of the open air, in 
 breach of an alleged duty ; if the 
 jury thinks that the prisoner was 
 guilty of wilful neglect, so gross 
 and wilful that they are satisfied he 
 must have contemplated her death, 
 he will be guilty of murder ; but if 
 they only think that he was so care- 
 less that her death was occasioned 
 by his negligence, though he did not 
 contemplate it, he will be guilty of 
 manslaughter. Reg. v. Marriott, 8 
 C. & P. 425— Patteson. 
 
 If a person does an act towards 
 another who is helpless, which must 
 necesFarily lead to the death of that 
 other, the crime amounts to murder ; 
 but if the circumstances are such 
 that the person could not have been 
 aware that the result would be 
 death, that wouM reduce the crime 
 to manslaughter, provided that the 
 death was occasioned by an unlaw- 
 ful act, but not such an act as 
 shewed a malicious mind. Reg. v. 
 Walters, Car. & M. 1 64— Coltinan. 
 
 Ill-treating O/iildren.] — When 
 from a conscientious religious con- 
 viction that God would heal the 
 sick, and not from any intention to 
 avoid the performance of their duty, 
 the parents of a sick child refuse to 
 call in medical assistance, though 
 well able to do so, and the child 
 consequently dies, it is not culpable 
 homicide. Reg. v. Wagstaffe, 10 
 Cox, C. C. 530— WiUes. 
 
 A parent who wilfully withholds 
 necessary food from his child, with 
 the wilful determination by such 
 withholding to cause the death of 
 the child, is guilty of inurder if the 
 child dies. Reg. v. Gonde, 10 Cox, 
 C. C. 547— Channell. 
 
 A parent who has the means to 
 supply necessaries, but who negli- 
 gently though not wilfully, with- 
 holds from a child food, which, if 
 administered, would sustain its life, 
 and the child consequently dies, is 
 guilty of manslaughter. lb. 
 
 In an indictment against a parent 
 for neglecting to provide sufficient 
 food and clothing for a child of ten- 
 der years, for whom he is bound by 
 law to provide, it is not necessary 
 to aver that the parent was, at the 
 time of the alleged oifence, of suffi- 
 cient ability to perform the duty so 
 imposed upon him. Reg. v. Ry- 
 land, 17 L. T., N. S. 219 ; 1 L. R., 
 C. C. 99; 37 L. J., M. C. 10; 10 
 Cox, C. C. 569 ; 16 W. R. 280. 
 
 Deserting Children.'] — It is an in- 
 dictable oifence to expose a person 
 to the inclemency of the weather. 
 Rex V. Ridley, 2 Camp, 640, 653 — 
 Lawrence. 
 
 A. was convicted of the man- 
 slaughter of an infant female child, 
 on an indictment which stated the 
 death to have been caused by ex- 
 posure, whereby the child became 
 mortally chilled, frozen and be- 
 numbed : — Held, that as the death 
 was attributable to an act of mis- 
 feasance, it was necessarily implied 
 that the child was of such tender 
 age and feebleness as to be incom- 
 
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APPRENTICES AND SERVANTS. 
 
 369 
 
 petent to take care of herself. Reg. 
 V. Waters, T. & M. 57 ; 1 Den. C. 
 C. 356; 2C. & K. 86-t; 13 Jur. 
 130 ; 18 L. J., M. C. 53. 
 
 An indictment charging a party 
 with abandoning a child with the 
 intent to burden a particular parish 
 with its maintenance, is not support- 
 ed by proof that the child was de- 
 posited by the accused in a parish 
 in a secret place where it was not 
 likely to be found. Req. v. Ren- 
 shato, 1 1 Jur., 615 ; 2 Cox, C. C. 
 385— Parke. 
 
 A female abandoned her infant 
 child, having first deposited it in 
 the bottom of a dry ditch among 
 some nettles, by which it was not 
 hurt ; and, in consequence of being 
 shortly afterwards found by other 
 persons, h.ad not experienced any in- 
 convenience from the exposure : — 
 Held, that she could not be convict- 
 ed either of an assault with intent 
 to murder the child, or of a com- 
 mon asFaiilt. lb. 
 
 Indictment charging A. with un- 
 lawfully leaving a child of a month 
 old, of which she had the care, in a 
 highway in a parish, with intent 
 to burden the parish with the main- 
 tenance of the child, is bad, for not 
 negativing the settlement of the 
 child in the parish, and for not al- 
 leging any injury done to the child 
 by the act of A. Rec/. v. Cooper, 
 1 Den. C. C. 459 ; 2 C. & K. 876 ; 
 T. & M. 125; 13 Jur. 502; 18 L. 
 J., M. C. 168; 3 Cox, C. C. 559. 
 
 An indictment charging that a 
 woman deserted her bastard child 
 with intent to throw the burden of 
 its maintenance on the parish, is 
 bad, without an averment that the 
 child had sustained any injury by 
 the abandonment, or that the wo- 
 man had the means of supporting 
 the child. Reg. v. Hogan, 2 Den. 
 C. C. 277; T. & M. 610; 15 Jur. 
 805; 20L. J., M. C. 219; 5 Cox, 
 C. C. 255. 
 
 If a woman, in breach of her ma- 
 ternal duty, wilfully abandons her 
 child of too tender years to provide 
 
 for itself, she is not indictable at 
 common law, unless her abandon- 
 ment causes an injury to the health 
 of the child. Reg. v. Phillpot, 
 Dears. C. C. 179 ; 17 Jur. 399 ; 22 
 L. J., M. C. 113; 6Cox, C.C. 140. 
 
 Evidence " that the child had suf- 
 fered injury, but not to any serious 
 extent," does not sufficiently sup- 
 port an averment in the indictment 
 that the health of the child hadbeen 
 gi-eatly and materially injured. lb. 
 
 If a woman leaves her child, a 
 young infant, at a gentleman's door, 
 or other place where it is likely to 
 be found and taken care of, and the 
 child dies, it will be manslaughter 
 only ; but if the child is left in a re- 
 mote place, where it is not likely to 
 be found, e. g. on a barren heath, 
 and the death of the child ensues, it 
 will be murder. Reg. v. Walters, 
 Car. & M. 164— Coltman. 
 
 Apprentices and Servants.] — If a 
 master, by premeditated negligence, 
 or harsh usage, causes the death of 
 his apprentice, it is murder. Rex v. 
 Self, 1 Leach, C. C. 137 ; 1 East, P. 
 C. 226. 
 
 An indictment lies against a mas- 
 ter for not providing sufficient food 
 and sustenance for a servant, where- 
 by she became sick and emaciated. 
 Rex V. Ridley, 2 Camp. 650 — Law- 
 rence. 
 
 A master is not by law bound to 
 provide medical advice for his serv- 
 ant ; but with respect to an appren- 
 tice, a master is bound, during the 
 illness of his apprentice, to provide 
 him with proper medicines. Reg. v. 
 Smith, 8 C. & P. 153-Vaiighan 
 and Patteson. 
 
 A girl of sixteen is not an infant 
 of tender years, and therefore her 
 master and mistress, who have not 
 kept her under duress, are not guilty 
 of a misdemeanor in not supplying 
 her with sufficient food and nour- 
 ishment, whilst in their service. 
 Anon., 5 Cox, C. C. 279— Coleridge 
 and Cresswell. 
 
 Where a master culpably neg- 
 
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370 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 lects to supply proper and sufficient 
 food and lodging to a servant dur- 
 ing a time when the servant is re- 
 duced to and in such an enfeebled 
 state of body and mind as to be help- 
 less, and unable to take care of him- 
 self, or is under the dominion and re- 
 straint of the master, and unable to 
 ■withdravr himself from his control, 
 and the servant's death is caused or 
 accelerated by such neglect, the 
 master is guilty of manslaughter. 
 Reg. v. Srkith, L. & C. C07 ; 10 
 Cox, C. C. 82 ; 11 Jur., N". S. 69o ; 
 34L. J.. M. C. 153; 13W. R.81G; 
 12 L. T.', N. S. 608. 
 
 Idiots.] — If one has his idiot broth- 
 er, who is helpless, as an inmate in 
 his house, and omits to supply him 
 with proper food, wannth, &c., he 
 is not indictable for the omission. 
 Bex V. Smith, 2 C. & P. 449— Bur- 
 rough. 
 
 A coimt stating that the defend- 
 ant did, whilst S., being a person of 
 unsound intellect and incapable of 
 taking care of himself, was under 
 the care, custody and control of the 
 defendant, keep, confine and impris- 
 on S., is bad, for want of a positive 
 averment that S. was under the 
 care, custody and control of the de- 
 fendant. Reg. V. Pelham, 8 Q. B. 
 959 ; 10 Jur. 659 ; 15 L. J., M. C. 
 105. 
 
 A. was convicted on an indict- 
 ment under 16 & 17 Vict. c. 96, s. 
 9, which charged that he, liaving 
 the care and charge of his wife, a lun- 
 atic, did abuse and ill-treat her : — 
 Held, that he was not a person hav- 
 ing the care or charge of a lunatic 
 within the meaning of the statute, 
 inasmuch as its provisions were not 
 inteiided to apply to persons whose 
 care or charge aiises from natural 
 duty. Req. v. Rundle, Dears. C. C. 
 482 ; 1 Jm-., ISr. S. 430 ; 24 L. J., 
 M. C. 129; 6 Cox, C. C. 549; 3 
 C. L. R. 659. 
 
 But a man who has voluntarily 
 taken upon himself the care of a lun- 
 atic brother in his own private house 
 
 is a person having the care and 
 charge of a lunatic within 16 & 17 
 Vict. c. 96, s, 9, and is liable to be 
 indicted for ill-treating him. Reg. v. 
 Porter, L. & C. 394 ; 9 Cox, C. C. 
 449 ; 10 Jur., K S. 547 ; 33 L. J., 
 M. C. 126; 12 W. R. 718; 10 L. 
 T., N. S. 306. 
 
 Prisoners, of War.] — It is an in- 
 dictable oifence wilfully and mali- 
 ciously to supply prisoners of war 
 with unwholesome fcod not fit to be 
 eaten by man. Rex v. Treeve, 2 
 East, P. C. 821. 
 
 Duty of Overseers.] — It is an in- 
 dictable offence in an overseer to 
 neglect to sujjply medical assistance, 
 when required, to a pauper labour- 
 ing under dangei'ous illness, although 
 he was not in the workhouse, nor 
 had, previously to his illness, re- 
 ceived or stood in need of parochial 
 relief. Rex v. Warren, R. & R. C. 
 C. 48, n. And see Hays v. Bryant, 
 1 H. Bl. 253 ; Rex v. Saunders, 7 
 C. & P. 277. 
 
 But an overseer is not indictable 
 for not relieving a pauper, unless 
 there is an order for his relief ; ex- 
 cept in case of immediate emergen- 
 cy, when there is not time to get an 
 order. Rex v. Meredith, R. & R. 
 C. C. 46. But see contrk. Rex v. 
 Booth, R. & R. C. C. 47, n. ; and 4 
 & 5 Will. 4, c. 76, ss. 52, 54. 
 
 (b) Indictment. 
 
 An indictment charging a feme 
 covert, living separately and apart 
 from her husband, with neglecting 
 and refusing to provide necessary 
 meat and drink for her servant, 
 and keeping her without suflicient 
 warmth, whereby she became sick 
 and emaciated, is insuiScient, in not 
 alleging that the servant was of ten- 
 der years, and under the dominion 
 and control of the defendant. Rex 
 v. Ridley, 2 Camp. 650 — Lawrence. 
 
 So an indictment against a mas- 
 ter for not providing necessaries for 
 his apprentice, ought to state that 
 
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INDICTMENT. 
 
 371 
 
 the appventice was of tender years, 
 and unable to provide for himself. 
 Rex V. Friend, R. & R. C. C. 20. 
 
 An indictment against a woman 
 for manslaughter, in neglecting to 
 supply an inlant of tender age with 
 sufficient food, is bad, if it does not 
 state a duty to supply the child with 
 food ; but, if the indictment charg- 
 es that the person not supplied with 
 food was imprisoned by the party 
 accused, that sufficiently shews the 
 duty to supply food. lieg v. Ed- 
 wards, 8 C. &'P. 611— Patteson. 
 
 A count charged that a lunatic 
 was the illegitimate child of the de- 
 fendant, a lemale, who had means 
 for the comfortable support and 
 maintenance of both, whereupon it 
 became her duty to take proper care 
 of him, but tliat she did not take 
 proper care of him, but kept and 
 confined him in a dark, cold and un- 
 wholesome room ; neglected to pro- 
 vide him with proper clothing ; per- 
 mitted him to become dirty ; allow- 
 ed the room to become foul, so as to 
 cause unwholesome smells ; and kept 
 him without proper air, warmth and 
 exercise necessary for his health, to 
 his damage and peril. Judgment 
 arrested : first, because no duty was 
 shewn, and secondly, because it was 
 not shewn that the conduct of the de- 
 fendant had, or must have occasion- 
 ed actual injury. Reg. v. Pelham, 
 8 Q. B. 9o9 ; 10 Jur. 659 ; 15 L. J., 
 M. C. 105. 
 
 (c) Evidence. 
 An indictment for manslaughter 
 stated in a first count, that the de- 
 ceased was the apprentice of the pris- 
 oner, and that it was the duty of 
 the prisoner to provide the deceased 
 with proper nourishment and medi- 
 cine, and charged the death to be 
 from ueglect. A second count charg- 
 ed that the deceased, " so being such 
 apprentice as aforesaid," was killed 
 by the prisoner by over-work and 
 beating. No evidence was given of 
 any indenture, but a witness proved 
 that the prisoner told him that the 
 
 deceased was his apprentice : — Held, 
 that this was sufficient proof of the 
 allegation of the apprenticeship in 
 the second count, but not of that in 
 the first count. Reg. v. Crumpton, 
 Car. & M. 597— Patteson. 
 
 Semble, that where the charge is, 
 that the prisoner received a child as 
 an apprentice, an indictment, import- 
 ing that a former master, with the 
 child's consent, bound the child to 
 the pi'isoner, will be sufficient evi- 
 dence of the receiving as an appren- 
 tice, though such indenture is execut- 
 ed by a stranger as trustee for the 
 former master, and not in the former 
 master's name. Rex v. Friend, R. 
 &. R. C. C. 20. 
 
 9. Injuring Persons hy Wanton or 
 
 Furious Driving. 
 By 24 & 25 Vict. c. 100, s. 35, 
 " whosoever, having the charge of 
 " any carnage or vehicle, shall, by 
 " wanton or furious driving or racing, 
 " or other wilful misconduct, or by 
 " wilful neglect, do or cause to be 
 " done any bodily harm to any per- 
 " son whatsoever, shall be guilty of 
 " a misdemeanor, and, being convict- 
 " ed thereof, shall be liable, at the 
 " discretion of the court, to bo im- 
 " prisoned for any term not exceed- 
 " ing two years, with or without 
 " hard labour." {Former provision, 
 1 Geo. 4, c. 4.) 
 
 10. Indictment for Murder and Man- 
 
 slaughter. 
 Form.]—BY 24 & 25 Vict. c. 100, 
 s. 0," in any indictment for murderor 
 " manslaugliter, or for being an ac- 
 " cessory to any murder or man- 
 " slaughter, it shall not bs necessary 
 " to set forth the manner in which 
 " or the means by which the death 
 " of the deceased was caused, but it 
 " shall be sufficient in any indictment 
 " for murder to charge that the de- 
 " fendant did feloniously, wilfully 
 " and of liis malice aforethought 
 " kill and murder the deceased ; and 
 " it shall be sufficient in any indict- 
 " ment for manslaughter to charge 
 
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372 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 " that the defendant did feloniously 
 " kill and slay the deceased ; 
 
 " And it shall be sufficient in any 
 " indictment against any accessory 
 " to any murder or manslaughter to 
 " charge the principal with the mur- 
 " der or manslaughter (as the casfe 
 " may be) in the manner hereinbe- 
 " fore specified, and then to charge 
 " the defendant as an accessory in 
 " the manner heretofore used and ac- 
 " customed." {Similar to former 
 provision, 14 & 15 Vict. c. lOO, s. 4.) 
 
 A coroner's inquisition is an in- 
 dictment, within the above section, 
 and it is, therefoi-e, unnecesfary to 
 set forth therein the manner in which, 
 or the means by which, the death 
 of the deceased was caused. Reff. v. 
 Ingham, 5 B. & S. 2.i7 ; 10 jur., 
 N. S. 968; 33 L. J., Q. B. 183; 12 
 W. R. 793 ; lO L. T., N. S. 45G ; 9 
 Cox, C. C. 508. 
 
 By 9 & 10 Vict. c. 62, " it shall 
 " not b3 necessary in any indictment 
 " or inquisition for homicide to al- 
 " lege the value of the insti-ument 
 " which caused the death of the de- 
 " ceased, or to allege that the same 
 " was of no value." 
 
 On an indictment for murder 
 against several, one cannot be con- 
 victed of an asfault committed on 
 the deceased in a previous scuffle, 
 such asrault not being in any way 
 connected with the cause of death. 
 Meg. V. Phelps, 2 M. C. C. 240; 
 Car. &M. 180. 
 
 The indictment must state, that 
 the act by whicli death ensued was 
 done of malice aforethought. Ilex 
 V. Nicholson, 1 East, P. C. 340. 
 
 In an indictment for manslaugh- 
 ter it is not necessary that it should 
 specifically charge that it was by an 
 act of omission. Reg. v. Smith, 11 
 Cox, C. C. 210~Lush. 
 
 Manner and Means of Death. 
 Before these Enactments.] — An in- 
 dictment for murder must have set 
 forth particularly the manner of the 
 death, and the means by which it 
 
 was efiected. Rex v. Sharwin, 1 
 East, P. C. 341, 421. 
 
 An indictment for murder, which 
 stated wounds as contributing to the 
 death, need not have stated their 
 length, depth, or breadth. Rex v. 
 Mo^sley, 1 M. C. C. 97 ; 1 Lewin, C. 
 C. 189 ; S. P., Bex v. Tomlinson, 6 
 C. & P. 370. 
 
 An indictment for murder must 
 state that the prisoner gave the de- 
 ceased a mortal wound. Hex v. 
 Lad, 1 Leach, C. C. 96. 
 
 Where death proceeded from suf- 
 focation, by the swelling up of the 
 passage of the throat, and such 
 swelling proceeded frcm wounds oc- 
 casioned by forcing things into the 
 throat, the statement might be, that 
 the things were forced into the 
 throat, and the deceased thei-eby 
 sufibcated ; and it was not necessa- 
 ry tOi mention the immediate cause 
 of sulibcation, namely, the swellirig 
 of the thi-cat. Rex v. Tye, R. & R. 
 C. C. 345. 
 
 A. was charged with suffocating 
 B. by placing both her hands about 
 the neck of B: — Held, that she 
 might be convicted, if B. was suffo- 
 cated in any manner, either by A. 
 or by any other person in her pres- 
 ence, she being privy to the com- 
 mission of the offence. Pex v. GuL 
 kin, 5 C. & P. 121— Park, Parke, 
 and Boll and. 
 
 If the death of a deceased was 
 charged to be 'by suffocation, by 
 placing the hand on the mouth of 
 the deceased, this allegation was 
 made out, if the jury was satisfied 
 that any violent means were used 
 to stop the respiration of the deceas- 
 ed. Bex V. Waters, 7 C. & P. 250 
 — -Denman. 
 
 In an indictment for murder, an 
 allegation that it was committed 
 " with a certain sharp instrument, 
 to the jurors aforesaid unknown," 
 was sufficiently certain. Rex v. 
 Grounsell, 7 C. & P. 788— Parke. 
 
 An indictment, which stated the 
 death to be by striking and beating 
 
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INDICTMENT. 
 
 373 
 
 the deceased with a piece of brick, 
 was not supported by proof tliat the 
 prisoner knocked him down with 
 his fist, and that the death was caus- 
 ed by the deceased striking his head 
 by falling on a piece of brick, in 
 consequence of the blow. Rex v. 
 Kelly, Car. C. L. 75 ; 1 M. C. C. 
 113 ; 1 Lewin, C. C. 193 ; Rex v. 
 Wrigley, 1 Lewin, C. C. 127. 
 
 Or by proof that he knocked him 
 down by a blow upon the head, and 
 that he was killed by a mortal 
 wound received by falling on the 
 ground. Rex v. Thomp&on, Car. 
 C. L. 7o ; 1 M. C. C. 139 ; 1 Lewin, 
 CO. 194. 
 
 An indictment charging that the 
 prisoner a musket loaded with gun- 
 powder and a leaden bullet to, 
 against, and upon M. G., felonious- 
 ly, i%c., " did shoot, discharge, and 
 send forth ; and that he, with the 
 leaden bullet aforesaid, out of the 
 musket aforesaid, then and there 
 by the force of the gunpowder 
 so shot, discharged, and sent forth 
 as aforesaid, G. M. did strike," &c., 
 was good, and the words " send 
 forth," and the other added words 
 which did not occur in the usual 
 fonn, might be rejected as surplus- 
 age. Req. V. Stokes, 2 0. & K. 
 536 ; 17 L. J., M. O.llG— C. O.R. 
 
 In an indictment for murder by 
 poisoning, it is sufficient, after al- 
 leging tlie administering the deadly 
 poison, and the mortal sickness occa- 
 sioned thereby, to aver " of which 
 said mortal sickness and distemper 
 the said E. S. died." Reg. v. San- 
 dys, 2 M. 0. 0. 227 ; Oar. & M. 345. 
 
 An indictment for manslaughter 
 that J. E. caused R. D. to become 
 mortally sick, -of which mortal sick- 
 ness, especially of a mortal congestion 
 of the lungs and heart, occasioned by 
 the means aforesaid, he died, ])rop- 
 erly charged a death from a mortal 
 congestion caused by those means. 
 Reff. v. HlHs, 2 0. & K. 470— Tin- 
 dal and Rolfe. 
 
 In a count for murder, the death 
 was stated to be by a blow of a 
 
 stick, and, in another count, by the 
 throwing of a stone. The jury 
 found the prisoner.? guilty of man- 
 slaughter, generally, on both counts, 
 and the judges held the conviction 
 right. Reff. v. 0' Brian, 2 0. & K. 
 115; 1 Den. CO. !). 
 
 A. and B. were indicted for the 
 murder of C, by shooting him with 
 a gun. In the first count A. was 
 charged as principal in the fir.'it de- 
 gree, B. as present, aiding and abet- 
 ting him. In the second count, B. 
 as principal in the first degree, A. 
 as aiding and abetting. The jury 
 convicted both, but said that they 
 were not satisfied as to which fired 
 the gun : — Held, first, that the jury 
 was not bound to find the prisoners 
 guilty of one or other of the counts 
 only. Reff. v. Downinff, 1 Den. 0. 
 0. 52 ; 2 0. & K. ^82. 
 
 Held, secondly, that, notwith- 
 standing the word " afterwards " in 
 the second count, both tjie counts 
 related substantially to the same 
 person killed and to one killing, and 
 might have been transposed without 
 any alteration of time or meaning. 
 Jb. 
 
 An indictment charged A. with 
 giving a mortal wound to G. on the 
 27th of May, of which wound he 
 died on the 29th of May ; and that 
 Y. and Z., on the day and year first 
 aforesaid, were present, aiding and 
 abetting A. the felony aforesaid to 
 do and commit. The jury found all 
 the prisoners guilty of manslaugh- 
 ter ; and it was objected for Y. and 
 Z., that the felony of A. was not 
 complete till the death of G.; but 
 the judges held the conviction right. 
 Reg. V.' 'Brian, 2 0. & K. 115 ; 1 
 Den. 0. 0. 9. 
 
 A. was indicted for the man- 
 slaughter of B. by a blow of a ham- 
 mer. No proof was given of the 
 striking of any blow, only of a scuf- 
 fle between ,the parties. The ap- 
 pearance of the injury was consist- 
 ent with the supposition, either of a 
 blow with a hammer, or of a push 
 against the lock or the key of a 
 
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374 
 
 MCTRDER, MANSLAUGHTER, ETC. 
 
 door : — Held, that if it was occa- 
 sioned by a blow with a hammer, 
 or any other hard substance held in 
 the hand, it was sufficient to sup- 
 port an indictment ; but otherwise, 
 if it was the result of a push against 
 the door. Rex v. Martin, 5 C. & 
 P. 128— Park and Parke. 
 
 In an indictment for manslaugh- 
 ter, it was not necessary to allege 
 the causes merely natural which 
 conduced to the death of the party ; 
 it was sufficient to allege truly the 
 act with which the prisoner was 
 charged, if that act accelerated the 
 death. Rex v. Wehh, 1 M. & Rob. 
 405 ; 2 Lewin, C. C. 196— Lynd- 
 hurst. 
 
 Name of Deceased.^ — If the name 
 of the party killed is not known, it 
 may be alleged to be a certain per- 
 son to the jurors unknown. JRex v. 
 Glark, R. & R. C. C. 358. 
 
 A bastard must not be described 
 by his mother's name, till he has 
 gained that name bv reputation. 
 lb. 
 
 Where a deceased illegitimate 
 child had not been baptized, but the 
 mother had, on two occasions, called 
 it Mary Anne, a witness stating that 
 the putative father had faid he was 
 a Baptist : — -Held, that it was right- 
 ly described as a female child whose 
 name was unknown. Rex v. Smith, 
 6 C. & P. 151 ; 1 M. C. C. 402 ; S. 
 P., Rex V. Poulton, 5 C. & P. 329. 
 
 In an indictment for the murder 
 of a bastard child, the absence of a 
 name is sufficiently accounted for 
 by the child being described as 
 " lately before born of the body of 
 J. H." Meg.r.Hogg,2M.&'Rob. 
 380 — Denman. 
 
 An indictment for child murder 
 is had for not stating the name of 
 the child or accounting for the omis- 
 sion : no conviction for concealing 
 the birth can take place. lieg. v. 
 Hicks, 2 M. & Rob. 302— Coleridge 
 and Maule. 
 
 An illegitimate child, six weeks 
 old, baptized on a Sunday, and 
 
 from that day to the following 
 Tuesday called by its name of bap- 
 tism and its mother's surname, is 
 sufficient evidence to warrant the 
 jury in finding that the deceased 
 was properly described by those 
 names. Reg. v. Euans, 8 C. & P. 
 765 — Erskine. 
 
 An indictment charged the mur- 
 der of Eliz^' Waters. The deceased 
 was the illegitimate child of the 
 prisoner, whose name was Ellen 
 Waters ; and a witness said, on the 
 trial : " The child was called Eliza ; 
 I took it to be baptized, and said it 
 was Eleanor Waters's child " : — 
 Held, that it was not suificient 
 proof that the surname of the de- 
 ceased was Waters. JRex. v. Waters, 
 1 M. C. C. 457. 
 
 C. was indicted for manslaugh- 
 ter, in killing " a woman, whose 
 name to the jurors is unknown." 
 C. cohabited wi'th the woman, and 
 sometimes said that she was his 
 wife, and sometimes that she was 
 not ; and none of the witnesses 
 had heard her called by any name : 
 — Held, that if the jury was satis- 
 fied that the deceased was not the 
 wife of the prisoner, and that the 
 name of the deceased could not be 
 ascertained by any reasonable dili- 
 gence, the description of the de- 
 ceased was proper ; but that, if the 
 jury should think that the deceased 
 was the wife of the prisoner, the de- 
 scription was bad; for, although there 
 was no evidence of her christian 
 name, she was entitled to the sur- 
 name of C, as being that of her hus- 
 band. Reg. V. Oompbell, 1 C. & K. 
 82— Erskine. 
 
 Indictment stated, that the pris- 
 oner, a single woman, on the 27th 
 of August, 1844, brought forth a 
 male child alive ; that she after- 
 wards, to wit, on the day and year 
 aforesaid, killed this child. Objec- 
 tion, that the indictment ought to 
 have stated the name of the child, 
 or that its name was unknown to 
 the jurors, overruled at the trial on 
 ttie ground that there was no pre- 
 
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DECLARATIONS IN ARTICULO MORTIS. 
 
 375 
 
 sumption, from the mere fact of 
 birth, that the child had a name, it 
 being a bastard ; that the indict- 
 ment afforded no presumption of its 
 having acquired a name by reputa- 
 tion or baptism ; that an averment 
 that the name was unknown im- 
 plied the acquisition of some name : 
 — Conviction held ris;ht. Reg. v. 
 WiUis, 1 Den. C. C. 80 ; 1 C. & K. 
 722. 
 
 An indictment for murder of a 
 bastai-d child, described as Harriet 
 Stroud, is not sustained by proof of 
 a child christened Harriet, and only 
 called by that name, though the 
 mother's name was Stroud. The 
 proper description is Harriet. A 
 child " whose name is to the jurors 
 unknown," is not good, because the 
 name of Harriet was known. Reg. 
 v. Stroud, 2 M. C. C. 270 ; 1 C. & 
 K. 187. 
 
 " Not named," is a good descrip- 
 tion of an unbaptized infant child in 
 an indictment for its murder. Reg. v. 
 Waters, 2 C. & K. 864 ; 1 Den. C. C. 
 356 ; T. & M. 57 ; 13 Jur. 130 ; 18 
 L. J., M. C. 50. 
 
 But " not baptized " would be in- 
 sufficient, lb. S. P., Reg. v. Biss, 
 8 C. & P. 773. 
 
 Amendment.'] — A woman, charg- 
 ed with the murder of her husband, 
 was described as A., the wife of J. 
 O., late of the parish of S., in the 
 county of W., labourer. The judge 
 ordered this to be amended, by 
 striking out the word wife, and in- 
 serting the word widow. Reg. v. 
 Orchard, 8 C. & P. 565— Abinger. 
 
 11. Declarations in Articulo Mortis. 
 
 When admissible.] — Nothing can 
 be evidence in a declaration in ar- 
 ticulo mortis which would not be so 
 if the party was examined. Rex v. 
 Sellers, Car. C.L. 233. 
 
 It is a general rule in cmninal 
 cases, that dying declarations are 
 admissible only where the death of 
 the deceased is the subject of the 
 
 charge, and the circumstances of the 
 death are the subject of the dying 
 declaration ; therefore, where a de- 
 fendant had been convicted of per- 
 jury, and obtained a rule nisi for a 
 new trial, pending which he shot 
 the prosecutor, and on shewing 
 cause against the rule for a new 
 trial, an affidavit of the dying dec- 
 larations of the prosecutor, relating 
 to the transaction out of which the 
 prosecution for peijury arose, was 
 produced : — Held, that it was inad- 
 missible. Rex V. Mead, 4 D. & R. 
 120; 2B. & C. 605. 
 
 Dying declarations are admissible 
 only where the death of the de- 
 ceased is the subject of the charge, 
 and the circumstances of the death 
 the subject of the dying declaration. 
 Reg. V. Hind, Bell, C. C. 253 ; 8 
 Cox, C. C. 300 ; 6 Jur., N. S. 514 ; 
 29 L. J., M. C. 147 ; 8 W. R. 421 ; 
 2 L. T., N. S. 253. 
 
 Therefore, on an indictment for 
 feloniously using certain instruments 
 upon the person of a woman with 
 intent to procure a miscarriage, her 
 dying declaration is inadmissible. 
 lb. 
 
 The declarations of a deceased 
 made on the day he was wounded, 
 and when he believed he should not 
 recover, are admissible, though he 
 did not die until eleven days after- 
 wards ; and though the surgeon did 
 not think his case hopeless, and con- 
 tinued to tell him so until the day 
 of his death. Rex v. Mosley, 1 M. 
 C. C. 97 ; 1 Lewin, C. C. 79. 
 
 To render the declaration of the 
 deceased admissible on a trial for 
 manslaughter, it must have been 
 made by him under an impression of 
 almost immediate dissolution ; and 
 it is not enough that the deceased 
 should have thought that he should 
 ultimately never recover. Rex v. 
 Van Butchell, 3 C. & P. 629 -Hul- 
 lock and Littledale. 
 
 A dying declaration is equal, in 
 point of sanction, to an examination 
 on oath, but the opportunity of in- 
 
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376 
 
 MURDER, MAI7SLAUGHTER, ETC. 
 
 vestigating the truth is very differ- 
 ent. A ■htoii's case, 2 Lewin, C. 0. 
 147 — Aldei-son. 
 
 Wliether or not dying declara- 
 tions were made under an apprehen- 
 sion of danger, must be determined 
 by the judge, in order to receive or 
 reject the evidence ; and not by the 
 jury after the evidence is received. 
 Rex V. John, 1 East, P. C. 357 ; S. 
 P., Bex V. Wellhourn, 1 East, P. C. 
 358 ; Rex v. Huchs, 1 Stark, 523 ; 1 
 Leach, 503, n. 
 
 The apprehension of danger may 
 appear either from the express dec- 
 laration of the deceased at the time, 
 or may be inferred from the state of 
 the wound, or illness, or other cir- 
 cumstances indicating the same. Ih. 
 
 The declarations of a deceased 
 person are evidence, though at the 
 time they were made the deceased 
 thought herself better, where she 
 had uniformly said, both before and 
 after they were made, and up to the 
 time of her death, that she knew 
 she should die. Rex v. Tinkler, 1 
 East, P. C. 354. 
 
 Any hope of recovery, however 
 slight, existing in the mind of a de- 
 ceased at the time of his making a 
 declaration, will render it inadmis- 
 sible as a declaration in articulo 
 mortis; but where a person knew 
 that he must die, and the magis- 
 trate, previously to his making the 
 declaration, desired him, as a dying 
 man, to tell the truth, and he re- 
 plied that he would : — Held, that 
 his declaration was admissible. 
 Rex V. Hayward, 6 C. & P. 157 — 
 Tindal. 
 
 A boy between ten and eleven 
 years of age was mortally wounded, 
 and died the next diy. On the 
 evening of the day on which he was 
 wounded, he was told by a surgeon 
 that he could not recover. The boy 
 made no reply, but appeared de- 
 jected. It appeared from his an- 
 swers to questions put to him, that 
 he was aware that he would be 
 punished hereafter if he said what 
 was untrue : — Held, that a declara- 
 
 tion made by him at this time was 
 receivable in evidence on the trial of 
 a person for killing him, as being a 
 declaration in articulo mortis. Reg. 
 V. Perkins, 9 C. & P. 395. 
 
 In order to render a declaration 
 in articulo mortis admissible in a 
 case of manslaughter, it is not nec- 
 essary to prove expressions of the 
 deceased, that he ^^'as in apprehen- 
 sion of almost immediate death ; but 
 the judge will consider, from all the 
 circumstances, whether the deceased 
 had or had not any hope of recov- 
 ery. Rex Y. Bonner, 6 C. & P. 38G. 
 On the question whether a declara- 
 tion of a deceased person is admissi- 
 ble as a declaration in articulo mor^ 
 tis, the judge will consider whether 
 the conduct of the deceased was 
 that of a dying person, such as 
 whether he gave directions respect- 
 ing his funeral, his will, &c., and 
 not merely the expressions he used, 
 as to whether he thought he should 
 or should not recover. Rex v. Spils- 
 hury, 7 C. & P. 187— Coleridge. 
 
 It is no objection against a de- 
 claration in articulo mortis that it 
 was made in answer to questions put 
 to the deceased by the surgeon, and 
 not a continuous statement made by 
 the deceased. Rex v. Fagent, 7 C. 
 & P. 238— Gaselee. 
 
 The deceased asked, " Shall I re- 
 cover"; the surgeon said, "No." 
 The patient grew better, but re- 
 lapsed, and then repeated the ques- 
 tion. The surgeon said, " I think 
 you will not recover." The de- 
 ceased said, " I think so, too." It 
 was after this converfatiou, but not 
 immediately, that the declaration 
 which was proposed to be given in 
 evidence was made : — Held, admis- 
 sible. Ashtori's case, 2 Lewin, C. C. 
 147 — Alderson. 
 
 Statements by a deceased person 
 who at the time thought he was 
 dying, and had no hope of recover- 
 ing, are admissible as dying declara- 
 tions. Reg. V. Howell, 1 jjen. C C 
 1; 1 C. & K. G89. 
 It is not sufficient that the person 
 
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DECLARATIONS EST AETICULO MORTIS. 
 
 377 
 
 making declarations was dying, to 
 constitute those declarations evi- 
 dence, unless the deceased was clear-, 
 ly and expressly warned that he 
 could not live, or unless he had ex- 
 pressed his knowledge that he was 
 dying. Req. v. Mooney, 5 Cox, C. 
 C. 318. 
 
 Upon a trial for manslaughter, it 
 was proved that the deceased, then 
 being in such a state from the in- 
 juries he had received that it was 
 impossible he could recover, and in 
 fact death ensued eleven days after- 
 wards, made a declaration, conclud- 
 ing with these words : — " I have 
 made this statement, believing I 
 shall not recover." On the same 
 day, and shortly before making the 
 declaration, he had stated: — "I 
 have seen the surgeon, and he has 
 given me some little hope that I 
 am better ; but I do not myself 
 think I shall ultimately recov- 
 er." It was also prove', that on 
 the occasion of this conversation he 
 had said that he could not recover : 
 — Held, that the statement being 
 made under a belief of impending 
 death, was properly received as a 
 dying declaration. Reg. v. JReaney, 
 Dears. & B. C. C. 151 ; 3 Jur., K 
 S. 191 ; 26 L. J., M. C. 43 ; 7 Cox, 
 C. C. 209. 
 
 A statement made by a deceased 
 person, inculpating one who was on 
 his trial for the murder of the de- 
 ceased, if made under circumstances 
 and after expressions which radicat- 
 ed a sense of impending danger of 
 death, is admissible as a dying de- 
 claration. Meg. V. Whitworth, 1 F. 
 & F. 382— Watson. 
 
 A dying declaration is admissible, 
 if the declarant conceives himself to 
 be past recovery, although the sur- 
 geon attending him may believe 
 him to be progressing favourably. 
 Reg. V. Peel, 2 F. & F. 21— Willes. 
 
 A dying declaration of a deceased 
 cannot be admitted by the judge 
 merely from his own notion of the 
 nature of the wound as described 
 (without any evidence that the de- 
 
 FisH. Dig.— 28. Digitized by Microsoft® 
 
 ceased,'at the time, believed himself 
 about to die), unless, at all events, 
 it is shown to have been such as 
 must necessarily have caused death 
 in a short time, and such as all 
 men reasonably would suppose to 
 be so. Reg. v. Oleary, 2 F. & F. 
 850— Erie. 
 
 To render a statement admissible 
 as a dying declaration it is not 
 enough that it appears that the per- 
 son making it was under the impres- 
 sion that death must ultimately en- 
 sue, but it is necessary that it should 
 appear that the person was conscious 
 at the time that death was actually 
 imminent. Reg. v. Forester, 4 F. & 
 F. 857— Byles. 
 
 It is no objection to the admissi- 
 bility of a dying 'declaration that 
 it was made in answer to leading 
 questions. Reg. v. Smith, L. & C. 
 607. 
 
 An examination of a man touch- 
 ing injuries which he had received 
 from the prisoner, if subsequently, 
 on t)ie death of the injured man 
 from the injuries he has received, 
 appended to a caption charging the 
 prisoner with his murder, is inadmis- 
 sible in evidence on that charge, al- 
 though it may be admissible as a 
 dying declaration. Reg. v. Clarke, 
 2 F. & F. 2— Wightman. 
 
 In order that a dying declaration 
 may be admissible against a prison- 
 er, it is not sufficient that the de- 
 ceased had no hope of recovery, 
 but he must be aware of the im- 
 mediate approach of death, so that 
 no terrestrial considerations may 
 have any weight with the deceased 
 in maldng such statement. Reg. v. 
 Forester, 10 Cox, C. C. 368 ; 4 F. & 
 F. 857— Byles. 
 
 A magistrate's clerk administered 
 an oath to a dying person, and she 
 made a statement. He asked her if 
 she felt she was likely to die ? She 
 said, "I thmk so." He said, "Why ?" 
 She replied, " From the shortness of 
 my breath." He said, "Is it with 
 the fear of death before you that 
 you make these statements ? " and 
 
378 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 added ; " Have you any present 
 hope of your recovery?" She raid, 
 "None." He then proceeded to 
 write out the deposition, and when 
 finished read it to her, and asked 
 her to correct any mistake that he 
 might h.ave made. She said, " No 
 hope, at present, of my recovery," 
 and he then inserted those words : 
 — Held, that the declaration was 
 inadmissible, as the words " at pres- 
 ent," introduced by the deceased, 
 were a qualification cf her previous 
 statement that she had no hope of 
 recovery, lieg. v. Jenkins, 20 L. T., 
 N. S. 372 ; 17 W. R. 621 ; 38 L. J., 
 M. 0. 82; 1 L. R. C. C. 187; 11 
 Cox, C. C. 250. 
 
 In order to render a statement of 
 a deceased person, not on cath, evi- 
 dence, the prosecution must shew 
 that such person at the time of 
 making the statement was distinct- 
 ly aware of the approach of death, 
 and had no hope of possible recov- 
 ery. Jieg. V. Mackay, 11 Cox, C. C. 
 148— Lush. 
 
 When not AdmissibleJ\ — l{ the de- 
 ceased thought she should recover 
 at the time the declarations were 
 made, they ought not to be receiv- 
 ed, liexv. Welboum, 1 East, P. C. 
 ■358 ; 1 Leach, C. C. 503, n. 
 
 Ill murder, the declarations of the 
 'deceased, after the mortal wound 
 is given, may be received, though 
 the yartj did not express any ap- 
 prehension of approaching dissolu- 
 tion, but the examination of such a 
 person taken by a magistrate, ex- 
 trajudicially, cannot be received. 
 Hex V. Woodcock, 1 Leach, C. C. 
 Mi) ■ 1 East, P. C. 354 ; S. JR., Rex 
 V. Bingler, 1 Leach, C. C. 504, n. ; 
 a East, P. C. 357. 
 
 Where the deceased asked his 
 surgeon if the wound was necessa- 
 rily mortal, and on being told that 
 recovery was just possible, and that 
 there had been an instance where a 
 person had recovered after such a 
 wound, he said, " I am satisfied," 
 and after this he made a statement : 
 
 — Held, that it was not admissible 
 as a declaration in articulo mortis, 
 as it did not appear that the de- 
 ceased thought himself at the point 
 of death, for, being told tliat the 
 wound was not necessarily mortal, 
 he might still have a hope of recov- 
 ery. Itex V. Christie, Car. C. L. 232 
 — Abbott and Park. 
 
 A person who was told by the 
 surgeon that she would never re- 
 cover raid, that she " hoped he 
 would do what he could for her, 
 for the sake of her family." He 
 again told her that there was no 
 chance of her recovery: — Held, 
 that this shewed such a degree of 
 hope in her mind, as to render a 
 statement she then made inadmissi- 
 ble as a declaration in articulo mor- 
 tis. JRex V. Crockett, 4 C. & P. 544 
 — Bosanquet. 
 
 In trials for robbery, the dying 
 declarations of the party robbed 
 have been held to be inadmissible. 
 Hex V.Lloyd, 4 C. & P. '233. 
 
 Declarations in articulo mortis 
 are not admissible on an indictment 
 for administering medicine to pro- 
 cure abortion. Hex v. Hutchinson. 
 2 B. & C. 608, n. 
 
 Nor on an indictment for perjury. 
 Hex V. Mead, 4 D. & R. 120 ; 2 B. 
 & C. 605. 
 
 Upon an indictment for felon- 
 iously using certain instruments up- 
 on the person of a woman, who 
 afterwards died, with intent to pro- 
 cure a miscarriage, the dying de- 
 claration of the woman is inadmis- 
 sible. Heg. V. Hind, Bell, C. C. 
 253 ; 8 Cox, C. C. 300 ; 2 L. T., N. 
 S. 253; 6 Jur., N.S. 514;29L. J., 
 M. C. 147 ; 8 W. R. 421. 
 
 The declaration of a convict at 
 the moment of execution could 
 not be given in evidence as the dec- 
 laration of a dying man, for, be- 
 ing attainted, his testimony could 
 not have been received on oath. 
 Hex v. Drummond, 1 Leach, C. C. 
 337 ; 1 East, P. C. 353, n. But see 
 6 & 7 Vict. c. 85. 
 
 A declaration in articulo mortis. 
 
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DECLARATIONS IN ARTICULO MORTIS. 
 
 379 
 
 made by a child only fom- years 
 old, is not admissible on the trial of 
 an indictment for the murder of 
 such child ; because a child of such 
 tender years cannot have that idea 
 of a future state which is necessary 
 to make such a declaration admis- 
 sible. Rex V. Pike, 3 C. & P. 5^8 
 — Park. See Reg. v. Perkins, 9 C. 
 & P. 895— Coltman and Rolfe. 
 
 If a person whose death is the 
 subject of a charge of manslaugh- 
 ter expresses an opinion that she will 
 not recover, and makes a declara- 
 tion, and at a subsequent part of 
 the same day asks a person whether 
 he thinks fhe will " rist again " : — 
 Held, that this shewed such a hope 
 of recovery as rendered the previous 
 declaration inadmissible. Rex v. 
 Fapent, 7 C. & P. 238— Gaselee. 
 
 The deceased said, " I think my- 
 self in groat danger : " — Held, that 
 these Words did not, necesfarily, ex- 
 clude all hope, and therefore that 
 they were not admissible as a dying 
 declaration. Errinc/ton's case; 2 
 Lewin, C. C. 148 — Patteson. 
 
 In a case of murder, it appeared 
 that two days before the death of 
 the deceased the surgeon told her 
 that she was in a very precarious 
 state, and that en the day before 
 her death, when she had become 
 much worse, she faid to the sur- 
 geon that she found herself grow- 
 ing worse, and that she had been in 
 hopes she would have got better, 
 but as she was getting worse, she 
 thought it her duty to mention 
 what had taken place. Immediate- 
 ly after this she made a statement : 
 — Held, that this statement was not 
 receivable in evidence as a declara- 
 tion in articulo mortis, as it did not 
 sufficiently appear that at the time 
 of the making of it the deceased 
 was without hope of recovery. Reg. 
 V. Megson, 9 C. & P. 418— Rolfe. 
 
 Where the deceased, having said 
 that he thought he should die, made 
 a statement, and two or three days 
 afterwards expressed his belief that 
 
 he should recover and he lived viomo 
 days after that : — Held, that the 
 statement was inadmissible. Reg. 
 V. Taylor, 3 Cox, C. C. 84— Patte- 
 son. 
 
 On a trial for murder, it was 
 proved that the deceased, who liv- 
 ed a few hours after the wound 
 was inflicted, made a statement, at 
 the conclusion of which he exclaim- 
 ed, "Oh, God ! I am going fast ; I 
 am too far gone to say any more " ; 
 but he did not appear to have pre- 
 viously said anything about his con- 
 dition, and there was no evidence, 
 one way or the other, to shew that 
 he was aware of it : — Held, that the 
 statement was inadmissible as a dy- 
 ing declaration. Req. v. Nicolas, G 
 Cox, C. C. 120— Creswell. 
 
 In order to render dying declar- 
 ations admissible in evidence, the 
 facts to shew that the decrased was 
 conscious of his state must point to 
 the time of the statement, and there- 
 fore declarations some days prior to 
 an expression that the deceased 
 " had given up all in this world," 
 are inadmissible. Reg. v. Qualter, 
 6 Cox, C. C. 357— Wightman. 
 
 Where the deceased faid he was 
 " a murdered man, and it would 
 have been better if they had killed 
 him on the spot than left him to 
 linger, and that he thought he 
 should never get over it," but he 
 lived several weeks afterwards : — ■ 
 Held, that there was a prima facie 
 case for the admissibility of declar- 
 ations made at the tnne of those 
 statements. But where the person 
 to whom the declarations were made 
 stated til at he believed the words 
 "murdered man" were not used in 
 their literal sense, and that the de- 
 ceased did not appeal- to have any 
 immediate fear of death on his 
 mind : — Held, that the case was 
 taken out of the princi[ile on which 
 such declarations are receivable. lb. 
 
 In Favor of the Accused^ — Dy- 
 ing declarations may be given in 
 
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380 
 
 MURDER, MANSLAUGHTER, ETC. 
 
 evidence in favor of the accused. 
 Bex V. Scaife, 1 M. & Rob. 551 ; 
 2 Lewin, C. C. 1 60— Coleridge. 
 
 Form of Taking.] — A deposition 
 made before a magistrate by a dy- 
 ing man, as to the cause of his death, 
 need not, on the face of it, shew that 
 it was made under circumstances 
 which would render it admissible in 
 evidence as a dying declaration ; but 
 that is a fact dehors the statement, 
 and may be jjroved by parol testi- 
 mony. Reg. V. Hunt, 2 Cox, C. C. 
 239. 
 
 If a declaration in articulo mor- 
 tis is taken down in writing, and 
 signed by the party making it, the 
 judge will neither receive a copy of 
 the paper in' evidence, nor will he 
 receive parol evidence of the declar- 
 ation. Bex V. Gay, 7 C. & P. 230 
 — Coleridge. 
 
 Parol evidence of dying declara- 
 tions which have been reduced into 
 writing cannot be received. Jiex v. 
 Trowter, 1 East, P. C. 356. 
 
 12. Evidence and Witnesses. 
 
 On an indictment for the murder 
 of a constable in the execution of 
 his ofSce, it is not necessary to pro- 
 duce his appointment : it is sufficient 
 if it is proved that he was known to 
 act as a constable. Hex v. Gordon, 
 1 Leach, C. C. 515 ; 1 East, P. C. 
 312. 
 
 On a trial for murder, every pei'son 
 who was present at the time of the 
 transaction which gives rise to the 
 charge, ought to be called as a wit- 
 ness on the part of the prosecution ; 
 for, even if they give different ac- 
 counts, the jury should hear the ev- 
 idence, and draw their own conclu- 
 sion as to the truth. Heg. v. Holden, 
 8 C. & P. 606— Patteson. 
 
 On the trial of an indictment for 
 murder, the death of the person 
 charged to have been killed may be 
 collected from the circumstances, if 
 incapable of being proved by other 
 evidence. Rex v. Hindmarsh, 2 
 Leach, C. C. 5G9. 
 
 As where the deceased was th ro wn 
 overboard into the sea, and never 
 heard of afterwards. Ih. 
 
 Although it is necessary, in a 
 case of murder, that there should 
 be evidence that the body found is 
 the body of the murdered person, 
 the circumstances may be sufficient 
 evidence of identity. Reg. v. Ghev- 
 erton, 2 F. & F. 833 -Erie. 
 
 Where a charge of murder de- 
 pends upon circumstantial evidence, 
 it ought not only to be consistent 
 with the prisoner's guilt, but incon- 
 sistent with any other rational con- 
 clusion. Hodge's case, 2 Lewin, C. 
 C. 227— Alderson. 
 
 On a charge of murder, the de- 
 ceased having been found tied hand 
 and foot, and with something forced 
 into the throat, apparently to pre- 
 vent any outcry, but which had 
 caused suffocation, and the state of 
 the premises shewing that a burglary 
 had been' committed ; and the evi- 
 dence against the prisoner being a 
 chain of circumstances tending to 
 identify him as one of two per- 
 sons employed in the burglary, the 
 jury was directed, that, if satisfied 
 that the prisoner was engaged in 
 the burglary, and a party to the 
 violence on the person of the de- 
 ceased, they should find him guilty 
 of the murder. Reg. v. Franz, 2 F. 
 & F. 580— Blackburn. 
 
 A. was indicted for the murder 
 of H. It was opened, that A., hav- 
 ing malice against P., had hired H. 
 to murder him, and that H. did so ; 
 but that H. being detected, A. had 
 murdered H. to prevent a discovery 
 of his (A.'s) guilt respecting the 
 murder of P. Evidence was given 
 of expressions of malice used by A. 
 towards P.:— Held, that the prose-- 
 cutor might also give evidence to 
 shew that H. was in fact the person 
 by whom P. had been murdered. 
 Rex V. Clewes, 4 C. & P. 221— 
 Littledale. 
 
 Although, where it is clearly j^rov- 
 ed that tie prisoner wilfully gave 
 the fatal blow, it is not necessary to 
 
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EVIDENCE AND WITNESSES. 
 
 381 
 
 shew motive or personal malice, or 
 a particular intent to kill the de- 
 ceased ; and if he killed A., mean- 
 ing to kill B., it is clearly murder ; 
 yet, where it is a main part of the 
 proof that he killed the deceased, 
 that he meant to kill some one else, 
 it is essential to prove that he had 
 an intent to kill such other person, 
 and that such person was or might 
 be supposed to be at or near the 
 spot, at or about the time of the, 
 fatal blow. lieg. v. Gleary, 2 F. & 
 F. 850— Erie. 
 
 On an indictment for manslaugh- 
 ter, where the death is occasioned by 
 the application of a lotion to the 
 skin, evidence may be given of the 
 eifect of the lotion when applied to 
 other patients. JEtex v. St. John 
 Long, 4 C. & P. 398— Park and 
 Garrow. 
 
 An allegation in an indictment, 
 charging that the death of a person 
 was caused by a plaister made and 
 applied by the prisoner, is sufficient- 
 ly proved by shewing that three 
 plaisters were applied, and that two 
 of them were applied by the prison- 
 er, and the third made from mater- 
 ials furnished by the prisoner. Mex 
 V. Spiller, 5 C. & P. 333— Bolland 
 and Bosanqiiet. 
 
 An indictment charged that the 
 death of the deceased was caused 
 by a mortal wound of the head, in- 
 flicted with a swingle. It was 
 proved that the death was caused 
 by a blow on the head by a piece of 
 wood, and that the external skin 
 was not broken, but that there was 
 extravasation of blood, pressing on 
 the brain, and a collection of blood 
 between the scalp and the brain. 
 The surgeon stated this' to be a con- 
 tused wound, with effusion of blood : 
 — Held, that the evidence supported 
 the indictment. Heg. v. Warnuxn, 
 2 C. & K. 195 ; 1 Den. C. C. 183. 
 
 An indictment charged, that the 
 deceased was on horseback, and that 
 the prisoner struck him with a stick, 
 and that the deceased, from a well- 
 grounded apprehension of a further 
 
 attack, which would have endan- 
 gered his life, spurred his horse, 
 which became frightened, and threw 
 him, giving him a mortal fracture. 
 The evidence was, that the prisoner 
 struck the deceased with a small 
 stick, and that the latter rode away, 
 and the foitner rode after him; 
 whereupon the deceased spurred his 
 horse, which then winced and threw 
 him, whereby he was killed : — Held, 
 that this evidence sufficiently sup- 
 ported the indictment. Hex v. 
 Hickman, 5 C. & P. 151 — Park. 
 
 In a case of manslaughter, it was 
 proved that the deceased was at an 
 inn for three days, and that the inn- 
 keeper asked him what his name 
 was, and that while there letters 
 arrived at the inn directed in that 
 name, which letters were delivered 
 to the deceased, and received by 
 him : — Held, that the innkeeper 
 might be asked what name the de- 
 ceased gave. Rex v. Timmins, 7 
 C. & P. 499— Patteson. 
 
 A. was charged with manslaugh- 
 ter, in killing B., by driving a cab- 
 riolet over him. C. saw the cabrio- 
 let drive by, but did not see the 
 accident. Immediately afterwards, 
 on hearing B. groan, C. went up to 
 him, when B. made a statement as 
 to how the accident had happened : 
 — Held, that this statement, being 
 made at the moment of the accident 
 occurring, was receivable on the 
 trial of A. for the manslaughter of 
 B. Bex V. Mster, 6 C. & P. 325— 
 Park, Patteson, and Gurney. 
 
 Statements made by the deceased 
 to the first person who comes up 
 after he has been wounded, are ad- 
 missible as part of the res gestae. 
 The deceased died from the effects 
 of a wound on his head, inflicted by 
 a stick. A girl in the neighbour- 
 hood heard a cry, and coming out 
 found the deceased standing with 
 his cap in his hand, and apparently 
 weak and injured. The deceased 
 did not survive more than a few 
 hours : — Held, the statement made 
 by the deceased to the witness im.- 
 
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882 
 
 MUJ^DER, MANSLAUGHTER, ETC. 
 
 mediately on her coming up, com- 
 plaining cf the injury, was admis- 
 sible in evidence, being part of the 
 res gei^ta?. JRei/. v. Lwvny, G Cox, 
 C. C. 477— Ir. C. C. R. 
 
 The evidence against a prisoner 
 charged witli manslaughter was an 
 admission on his part, that, unfor- 
 tunately, he was the man who shot 
 the deceased ; and the fact that, on 
 their coming together, apparently 
 not in ill-humour, from the South 
 Metropolitan Cemetery, where the 
 prisoner was a watchman, but with 
 which the deceased Jiad no connex- 
 ion, the prisoner faid to the deceas- 
 ed, " Now, you mind, don't let me 
 see you on my premises any more." 
 At the time this was said, the wound 
 had been given of which the deceas- 
 ed eventually died : — Held, that, in 
 point of law, the evidence was suf- 
 iicient to sustain the charge. Eex 
 V. Morrison, 8 C. & P. 22— Park. 
 
 13. Juried, Judgment and Mceaution 
 in Murder. 
 
 4 & .5 Will, i, c. 26, s. 'i.]—By 
 2 te 3 Will. 4, c. 75, fl. 16, 25 Geo. 
 3, c. 37, was repealed, so far as re- 
 lated to this subject. 
 
 By 24 & 25 Vict. c. 100, s. 2, 
 " upon every conviction for murder 
 " the court shall pronounce sentence 
 " of death, and the fame may 
 " be carried into execution, and 
 " all other proceedings upon such 
 " sentence and in respect thereof 
 " may be had and taken, in the 
 " same manner in all respects as 
 " sentence of death might liave been 
 " pronounced and carried into exe- 
 " cution, and all other proceedings 
 " thereupon and in respect tliereof 
 " might have been had and taken, 
 " before the passing of this act, 
 " upon a conviction for any other 
 " felony ji^r which the prisoner 
 " might have bsen sentenced to 
 " sutter death a^ a felon." 
 
 By s. 3, " the body of every per- 
 " son executed for murder shall be 
 " buried witiiin the precincts of the 
 " prison in which he shall have been 
 
 " last confined after conviction, and 
 " the sentence of the court shall so 
 " direct." 
 
 25 & 26 Vict. c. 65, " provides 
 " for the speedier trial of offenders, 
 " subject to martial law, commiting 
 " murder or manslaughter on parties 
 " also subject to martial law." 
 
 By 31 & 32 Vict. c. 24, " capital 
 " punishment for murder is to be 
 " carried out within the prison 
 " walls." 
 
 Where two persons charged with 
 murder by the same indictment had 
 made statements implicating one 
 another, and those statements were 
 evidence for the prosecution, the 
 court, upon the application of the 
 counsel appearing for one prisoner, 
 allowed them to have separate trials. 
 lieg. V. Jackson, 7 Cjx, C. C. 357 
 —Martin. 
 
 A man upon whom sentence of 
 death has passed ought not, while 
 under that sentence, to be brought 
 up to receive judgment for another 
 felony, although he was under that 
 sentence when he was tried for the 
 other felony, and did not plead his 
 prior attainder. Hex v. Brady, R. 
 & R. C. C. 268. 
 
 The time and place of the execu- 
 tion of a convicted felon foi-m no 
 part of the sentence. Hex v. Boyle, 
 1 Leach, C. C. 67. 
 
 A judge might, if he saw fit, have 
 ordered a person convicted of mur- 
 der to be executed immediately, or 
 at any time within 48 hours after 
 the conviction, as he might have 
 done in any other capital felony. 
 Hex V. Wyatt, R. & R. C. C. 230. 
 
 It was not essential to award the 
 day of execution in the sentence, 
 the 25 Geo. 2, c. 37, being in that 
 respect only directory; and if a 
 wrong day was awarded, it would 
 not vitiate the sentence, if the mis- 
 take was discovered and set right 
 during the assizes. lb. 
 
 The bodies of executed murderers 
 were by the common law at the 
 king's dispofal, and therefore the 
 court could not direct them to be 
 
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TRIAL, JUDGMENT, AND EXECUTION. 
 
 383 
 
 hung in chains. Bex v. Hall, 1 
 Leach, G.C. 21. 
 
 Where a woman who had been 
 condemned to death did not, when 
 called upon to say why execution 
 should not be done upon her, plead 
 her pregnancy, the court would not 
 permit that question to be formally 
 inquired into, at the suggestion of 
 her counsel that she was in fact preg- 
 nant. JReg. V. Hunt, 2 Cox, C. C. 
 261. 
 
 Sentence of death might under 6 
 & 7 Will. 4, c. 30, be recorded 
 against a person convicted of mur- 
 der, lieij. V. Hogg, 2 M. & Rob. 
 381 — Denman. 
 
 Quaere, whether on passing sen- 
 tence of death on a conviction for 
 murder, the award of dissection and 
 anatomizing, in pursuance of 25 Geo. 
 3, c. 37, was an essential part of the 
 sentence to be pronounced by the 
 judge? Bex v. Fletcher, R. & R. 
 C. b. 58. 
 
 The omission of it might be rem- 
 edied by the judge goiug again 
 into court after adjournment, from 
 his lodgings, and ordering the pris- 
 oner to be again brought up, and 
 then passing the proper judgment, 
 as the sentence might be corrected 
 or altered at any time during the 
 assizes. Ih. 
 
 On a conviction for murder, in 
 which the prisoners were brought 
 up by ha,beas corpus, and the record 
 by certiorari, the court gave the 
 prisoners three days' time to exam- 
 ine the record and instruct coun- 
 sel to shew cause why execution 
 should not be awarded against them. 
 Rex V. Garside, 4 N. & M. 33 ; 2 
 A. & E. 2G6. 
 
 Semble, that a pardon after judg- 
 ment may be pleaded ore tenus, and 
 in bar of execution ; and there may 
 be a demurrer to such a plea ore 
 tenus. lb. 
 
 The court of King's Bench has 
 authority to order the sheriff of any 
 county, or the marshal of the court,_ 
 to carry into execution a sentence of 
 death, pronounced by a judge under 
 
 a commission of oyer and terminer 
 and genera! gaol delivery. lb. 
 
 A proclamation promising a par- 
 don cannot be pleaded as a pardon. 
 lb. 
 
 But where such proclamation had 
 been made, the court, in their dis- 
 cretion, deferred the awarding of 
 execution upon the sentence, until 
 the prisoner should have had time 
 to apply to the secretary of state 
 for a pardon, according to the terms 
 of the proclamation. lb. 
 
 The attorney-general is entitled, 
 as of course, to a habeas corpus and 
 certiorari, to bring up a prisoner 
 and the record of his conviction in 
 case of felony. lb. 
 
 A sheriff is not bound, upon serv- 
 ice of a coJDy of the calendar of pris- 
 oners signed by a justice of gaol 
 delivery at the assizes, to execute 
 prisoners against whom sentence of 
 death has been passed, unless such 
 prisoners are in his legal custody. 
 Bex V. Antrobus, 4 N. & M. 5 Go ; 2 
 A. & E. 798 ; 1 H. & W. 9G ; 6 C. 
 & P. 784. 
 
 Where the sheriff has the custody 
 of a prisoner, the judgment of the 
 court passing sentence of death up- 
 on him is, without any warrant or 
 copy of the calendar, sufficient to 
 authorize and require the sheriff to 
 do execution ; the copy of the calen- 
 dar signed by the judge is a mere 
 memorial. lb. 
 
 14. Punishment for Manslaughter. 
 By 24 & 25 Vict. c. 100, s. 5, 
 " whosoever shall be convicted of 
 " manslaughter shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for life, or 
 " for any term not less than three 
 " years (now by 27 & 28 Vict. c. 
 " 47, not less than five years), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour, or to pay such 
 " fine as the court shall award, in 
 " addition to or without any such 
 " other discretionary punishment as 
 " aforesaid." 
 
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384 
 
 NIGHT POACHTSTG. 
 
 XXIV. Night Poaching and 
 
 Offences eelating to Game, 
 
 Haees and Rabbits. 
 
 1. The Offence, 384. 
 
 2. Limitation of Time for Prosecu- 
 
 tion, 389. 
 
 3. Indictment, 391 
 
 4. Evidence, 392. 
 
 5. Convictions and Commitments, S9S. 
 
 6. Hares or Rabbits, 393. 
 
 1. The Offence. 
 
 iStatvtes.]-d Geo. 4, c. 69, 7 S8 
 Vict. c. 39, and 25 tfc 26 F«c*. c. 
 114. TAe 9 Geo. 4, c. 69, repealed 
 57 (?eo. 3, c. 90. 
 
 The 9 Geo. 4, c. 69, s. 9, creates 
 two distinct offences. First, the en- 
 tering in the night on land to the 
 number of three, some one of them 
 being armed ; and second, the being 
 in the night on land to the number 
 of three, some one of them being 
 armed. Rex v. ICendrick, 7 C. & 
 P. 184— Coleridge. 
 
 In a case of night poaching by 
 three or more armed, if one has a 
 gun, all are armed within 9 Geo. 4, 
 c. 69, s. 9. Reg. v. Goodfellow, 1 
 C. & K. 724 ; 1 Den. 0. C. 81 ; S. 
 P., Reg. V. Andrews, 1 Cox, C. C. 
 144 ; Reg. v. May, 6 Cox, C. C. 
 176— Patteson. 
 
 Entry.] — If nets are hung on the 
 twigs of a hedge within the close, it 
 is an entry, though the parties are 
 in a lane outside the hedge. Athea's 
 case, 2 Lewin, C. C. 191 — Alderson. 
 See Pickering v. Rudd, 1 Stark. 56 ; 
 4 Camp. 219. 
 
 If three persons go out together 
 night poaching, one being armed, 
 and two of them stand in a road, 
 and set nets in the hedge of a field 
 of A., and send their dog into the 
 field to drive hares into the net, and 
 after this the third leaves them in 
 the road and goes to poach by him- 
 self in another field of A. ; this will 
 not support an indictment for night- 
 poaching on lapd of A. ; for the 
 sending in of a dog is not an enter- 
 ing of land within 9 Geo. 4, c. 69, s. 
 9; and the entering of the second 
 
 field was not a joint act of the three. 
 Reg. V. Mckless, 8 C. & P. 757 — 
 Patteson. 
 
 Six were indicted under 9 Geo. 4, 
 c. 69, s. 9, for having'been in a field 
 at night, armed for the purpose of 
 taking game. Three of the six had 
 been in the field, and three had re- 
 mained outside of it, aiding and as- 
 sisting the others : — Held, that the 
 actual entry of some of the party, 
 armed, was suificient to support the 
 conviction of all, though it could 
 not be proved which of them had 
 actually entered the field. Reg. v. 
 Whittaker, 1 Den. C. C. 310 ; 3 
 Cox, C. C. 50. 
 
 In order to bring a case of night- 
 poaching within 9 Geo. 4, c. 69, s. 
 9, it is not necessary to prove that 
 three persons were all within the 
 same close or inclosure, on the same 
 piece of open land, if all were of 
 one party, or being armed, with the 
 same common purpose, in the place 
 described in the indictment. Reg. 
 V. Uezzell, 2 Den. C. C. 274 ; T. & 
 M. 598. 
 
 A count stated that the prisoners 
 were in a field called A., for the 
 purpose of then and there taking 
 game : — Held, that they could not 
 be convicted on that count, unless 
 the jury was satisfied that the pris- 
 oners had an intention of taking 
 game in that particular field. Rex 
 V. Oapewell, 5 C. & P. 549— Parke. 
 
 A defendant was convicted under 
 1 & 2 Will. 4, c. 32, s. 30, of tres- 
 passing on land in the possession 
 and occupation of B. in pursuit of 
 game : — Held, that the entry upon 
 the land under that section must be 
 a personal entry, but it having been 
 proved that the defendant was on 
 the highway in pursuit of game, 
 and not as a traveller, and that B. 
 was the owner of the land on both 
 sides of the highway : — Held also, 
 that, as the soil and freehold of the 
 highway were in B. as owner of the 
 adjoining land, there was a personal 
 entry on the land by the defendant. 
 Reg. V. Pratt, Dears. C. C. 502 ; 3 
 
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THE OFFENCE. 
 
 385 
 
 1 Jur., N. S. 681 ; 
 113: 4 El. & Bl. 
 
 C. L. R. 686; 
 24 L. J., M.C. 
 
 860. 
 
 On an indictment on 57 Geo. 3, 
 0. 90, he ha^ng entered a given 
 close with intent there to kill game, 
 and being there found armed, it 
 was necessary to prove an entry 
 with that intent into the close speci- 
 fied. Hex V. JSarham, 1 M. C. G. 
 R. 151. 
 
 On an indictment under 57 Geo. 
 3, c. 90, a man might have been 
 convicted of having entered a wood, 
 and of being found armed there, 
 though he was not seen in such 
 wood. It was sufficient if there 
 was evidence to shew that he had 
 been there armed. Hex v. Worker, 
 1 M. C. C. R. 165. In this case 
 the prisoner was not seen in the 
 wood, but a gamekeeper saw flashes 
 in the wood and heard reports of 
 guns, and saw the prisoner after- 
 wards in the close adjoining the 
 wood. 
 
 Two were charged with being 
 by night, and armed, in a close 
 for the purpose therein of de- 
 stroying game. It was proved 
 that they passed through the close 
 without doing anything in it, and 
 that after being lost sight of for 
 two hours, they were found three 
 miles off with game in their posses- 
 sion : — Held, that there was evi- 
 dence that they were in the partic- 
 ular close for the purpose of taking 
 game, and that if persons went out 
 with a general intention of taking 
 game, that was sufficient evidence 
 of an intent to take game in every 
 field through which they passed, in 
 which game might be expected to 
 be found. Bee/, v. Siggs, 10 Cox, 
 C. C. 527— Willes. 
 
 Information.] — In an indictment, 
 peijury was alleged to have been 
 committed on the hearing of a com- 
 plaint for entering land for the pur- 
 pose of taking game, contrary to 9 
 Geo. 4, c. 69 :— Held, that it need 
 not appear on the face of the in- 
 
 FisH. Dig.— 29. Digitized by Microsoft® 
 
 formation or complaint in writing 
 that the offence was " entering land 
 for the purpose of taking game 
 there," in order to prove the jus- 
 tice's jurisdiction before whom per- 
 jury is alleged to have been com- 
 mitted. Reg. V. Western, 11 Cox, 
 C. C. 98; IL. R.,C. C. 122; 18 L. 
 T., ]Sr. S. 299 ; 16 W. R. 730. 
 
 An information under 9. Geo. 4, 
 c. 69, s. 1, for entering land for the 
 purpose of taking game, is sufficient 
 to give the justices before whom it is 
 laid jurisdiction to hear the charge, 
 although it does not allege that the 
 entry was for the purpose of taking 
 game there. Reg. v. Western, 1 L. 
 R., C. C. 122 ; 18 L. T., N. S. 299 ; 
 16 W. R. 730 ; 37 L. J., M. C. 81. 
 
 In Concert and Co-operation.] — 
 To support an indictment for night 
 poaching by three or more being 
 armed, it is not sufficient to prove 
 that one of the prisoners was in the 
 place laid in the indictment, and 
 that the rest of the party was in 
 another wood which was separated 
 from the place mentioned in the in- 
 dictment by a turnpike road. Rex 
 V. Doicsdl, 6 C. & P. 398— Patte- 
 son. 
 
 To sustain an indictment for 
 night poaching, the parties must 
 have been in the place charged in 
 the indictment, with intent to de- 
 stroy game there, and it is incum- 
 bent on the prosecutor to convince 
 the jury that the defendants had 
 an intent to destroy game in the 
 particular place mentioned in the 
 indictment. Rex v. Gainer, 7 C. 
 & P. 231— Coleridge. 
 
 If one of a party of poachers is 
 found in the land specified, the rest 
 co-operating in the jjursuit in ad- 
 joining land, all may be alleged to 
 be found in the land specified. Rex 
 V. Andrews, 2 M. & Rob. 37 — Gur- 
 ney ; S. P., Rex v. ZocJcett, 7 C. & 
 P. 300— Alderson. 
 
 Those who are watching at the 
 outside of a preserve, for the pur- 
 pose of giving the alarm, on the 
 
386 
 
 NIGHT POACHING. 
 
 approach of the gamekeeper, to 
 others who are in the preserve, and 
 who afterwards go into the preserve 
 for that purpose, are equally guilty 
 with those who enter the preserve at 
 first. Bex v. Passey, 7 C. & P. 
 282— Alderson. 
 
 Two of the prisoners were seen 
 together running out of a coppice, 
 one of them with a gun. The 
 third immediately afterwards came 
 out of it alone with a gun and a 
 pheasant : — Held, insufficient evi- 
 dence of concert. Reg. v. Jones, 
 2 Cox, C. C. 185— Maule. 
 
 It is not essential that all the 
 prisoners charged should actually 
 enter the inclosed places; hut, if 
 they are associated together for the 
 common purpose of taking game 
 contrary to the statute, and some 
 oi the "party actually enter such 
 jplace to effect that purpose, while 
 the others remain near enough to 
 ■aid and assist, they may all be con- 
 victed under an indictment charg- 
 ing them with being in such place 
 for such purpose. Meg. v. Whit- 
 taker, 2 C. & K 636 ; 17 L. J., M. 
 C. 127 ; 1 Den. C. C. 310 ; 3 Cox, 
 C. C. 50. 
 
 It is not necessary to constitute 
 the offence of three or more per- 
 sons armed entering land in the 
 night to take game, that all the 
 three persons should be in one close, 
 or that the land should be in the 
 occupation of one person. Reg. v. 
 TIezzell, 3 C. & K. 150 ; 2 Den. C. 
 C. 274 ; 5 Cox, C. C. 188 ; 15 Jur. 
 434; 20L. J., M. C. 192. 
 
 One of the prisoners may be m 
 Whiteacre, another in Blackacre, 
 and another in Greenacre, and the 
 land may be in the occupation of 
 different persons. The offence is 
 complete if three persons are in one 
 common party unlawfully upon any 
 land, whether open or inclosed land, 
 for the common purpose of illegally 
 destroying game ; and it is sufficient 
 to describe the close of land as in- 
 closed or open land, in the occupa- 
 
 tion of a certain person or of cer- 
 tain persons. lb. 
 
 Decisions under Repealed Snact- 
 ment.l — It was nc^answer to a 
 charge on 57 Geo. 3, c. 90, for be- 
 ing found armed in the night in a 
 wood, with intent to kill game, that 
 the prisoners put down their arms 
 and left them before they were seen, 
 if it was perceived that some one 
 was there armed before they were 
 seen. Rex v. Nash, R. & R. C. C. 
 386. 
 
 On an indictment on 57 Geo. 3, 
 c. 90, for being out armed, with in- 
 tent to kill game, it appeared that 
 several persons were out with such 
 intent, but only one of them was 
 armed with a gun : — ^Held, that the 
 rest, who were unarmed, were lia- 
 ble to be convicted under that act. 
 Rex V. Smith, R. & R. C. C. 368. 
 
 For if any one of the party was 
 armed, it was sufficient to bring the 
 whole party within the statute. lb. 
 
 On an indictment on 57 Geo. 3, 
 c. 90, against a person for being 
 found armed in the night, with in- 
 tent to kill game : — Held, that if 
 several went into a close in the 
 night to kill game, and one had 
 arms without the knowledge of the 
 others, the other persons who were 
 unarmed were not liable to be con- 
 victed. Rex V. Southern, R. & R. 
 C. C. 444. 
 
 Weapons.'] — ^Large stones are of- 
 fensive weapons, within 9 Geo. 4, 
 c. 69, B. 9, if the jury is satisfied 
 that the stones are of a description 
 capable of infficting serious injury 
 if used offensively, and were brought 
 and used for that purpose. Rex v. 
 Grice, 7 C. & P. 803 — Ludlow, 
 Serjt., Parke and Bolland. 
 
 The mere use of a small stick, as 
 a weapon, by a poacher, in a sud- 
 den affray with gamekeepers, is not 
 enough to prove such stick an of- 
 fensive weapon, under 9 Geo. 4, c. 
 69, B. 9. The jury must be pon- 
 
 Digitized by Microsoft®, 
 
THE OFFENCE. 
 
 387 
 
 vinced that the party took it with 
 him for the purpose of oifenoe. 
 Bex V. Fry, 2 M. & Roh. 42— 
 Gurney. 
 
 A party out at night, in pursuit 
 of game, carried a thick stick large 
 enough to be called a bludgeon, 
 but which he used at other times 
 as a crutch, he being lame : — Held, 
 that it was a question for the jury 
 whether the prisoner had taken out 
 this stick to use as an offensive 
 weapon, or merely for the purpose 
 to which he usually applied it ; and 
 that, although it was a weapon 
 within the statute, and might be 
 used offensively, yet that, unless 
 the defendant took it out with an 
 intention of so using it, the indict- 
 ment could not be sustained. Rex 
 V. Palmer, 1 M. & Rob. 70— Taun- 
 ton. 
 
 An indictment alleged that the 
 defendant and others were armed 
 with bludgeons and other offensive 
 weapons, and the evidence was that 
 they had sticks : — Held, that a 
 stick was not necessarily an offen- 
 sive weapon, in the absence of evi- 
 dence of its size, &c., even although 
 it had been used offensively. Reg. 
 V. Merry, 2 Cox, C. C. 240— Maule. 
 
 What Game.'\ — ^A person cannot 
 be convicted under 9 Gfeo. 4, c. 69, 
 s. 9, for entering land by night, 
 armed for the purpose of taking 
 game, whose object is to steal 
 young pheasants which had been 
 hatched by a hen, and which had 
 not yet become wild. Eeg. v. 
 Garnham, 2 F. & F. 347 ; 8 Cox, 
 C. C. 451— Pollock. 
 
 Apprehension of Offenders.] — 
 When gamekeepers find poachers 
 in a wood, they need not give any 
 intimation by words that they in- 
 tend to apprehend — the oircuna- 
 stances are sufficient notice ; and if 
 a person out poaching sees a man 
 running after him, he may fairly 
 presume that the person means to 
 
 apprehend him. Rex v. Davis, 7 
 C. & P. 785— Parke. 
 
 The 14 & 15 Vict. c. 19, s. 11, 
 which gives any person a right to 
 apprehend persons committing in- 
 dictable offences in the night, ap- 
 plies to persons night poaching 
 within 9 Geo. 4, c. 69, s. 9, al- 
 though the night is defined to be- 
 gin and end at different times in 
 the two statutes. Reg. v. Sander- 
 son, 1 F. & F. 698— Willes. 
 
 Prisoners indicted for night poach- 
 ing, and for assaulting a gamekeeper 
 with intent, evidence of the com- 
 mon intent to poach does not sus- 
 tain the allegation of a common 
 intent to wound. Reg. v. Dodd- 
 ridge, 8 Cox, C. C. 335— Martin 
 and Channell. 
 
 The prisoners were seen upon the 
 land of the prosecutor a# night in 
 pursuit of game. They escaped in- 
 to a highway and there assaulted 
 the keepers. But the keepers stated 
 that they had not followed them 
 into the highway with an intention 
 to arrest them there : — Held, that 
 there being no intention on the part 
 of the keepers to arrest them at the 
 time when the attack was made 
 upon them, it was not an assault 
 within 9 Geo. 4, c. 69. lb. 
 
 Gamekeepers, who were out 
 watching in the night, heard firing 
 of guns in the preserves of their 
 employer, and they waited in a 
 turnpike road, expecting the poach- 
 ers to come there, which they did, 
 and an affray ensued between the 
 gamekeepers and the poachers : — 
 Held, that, if the gamekeepers 
 were then endeavouring to appre- 
 hend the poachers, they were not 
 justified in so doing. Reg. v. Mead- 
 ham, 2 C. & K. 633— Wightman. 
 
 A policeman has no power under 
 25 & 26 Vict. c. 114, to apprehend 
 persons whom he may suspect of 
 coming from land where they have 
 been unlawfully in pursuit of game, 
 and such persons may lawfully re- 
 sist and use such violence as is nec- 
 
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388 
 
 NIGHT POACHING. 
 
 essary to prevent their apprehen- 
 sion. Reg. V. Spencer, 3 F. & F. 
 854— Martin. 
 
 Where, under such circumstan- 
 ces, several persons resist with in- 
 tent only to prevent their appre- 
 hension, and one of them is guilty 
 of excess, the others are not respon- 
 sible for the act- of their companion 
 exceeding the common intent. Il>. 
 
 A policeman can only justify 
 stopping and searching a cart upon 
 a highway under 25 <fc 26 Vict. c. 
 114, where he has good cause to 
 suspect that the cart is carrying 
 game which has been unlawfully 
 obtained ; and upon an indictment 
 for assaulting the policeman in the 
 execution of his duty under such 
 circumstances, it is necessary to 
 prove the existence of reasonable 
 grounds • of suspicion ; where no 
 reasonable grounds of suspicion can 
 be shewn, persons are justified in 
 resisting the search. Reg. v. Spen- 
 cer, 3 F. & F. 857— Martin. 
 
 A gamekeeper, or other person 
 lawfully authorized under 9 Geo. 4, 
 c. 69, s. 2, may apprehend persons 
 found offending under that act, 
 without calling on them to surren- 
 der, if the circumstances are such 
 as to constitute notice of his pur- 
 pose. Rex V. Payne, 1 M. C. C. 
 378. 
 
 A person who is employed by a 
 lord of a manor, as a watcher of 
 his game preserves, is a person hav- 
 ing authority to apprehend night 
 . poachers, and he need not have any 
 authority from the lord of the ma- 
 nor. Rex V. Price, 7 C. & P. 178 
 —Park. 
 
 Where a person is found night 
 poaching on the" manor of A. by 
 one of his watchers, and was pur- 
 sued off the manor, and then on to 
 it again, and there snapped his gun 
 at the watcher, he was- guilty of a 
 capital offence under 9 Geo. 4, c. 
 81, ss. 11, 12. lb. 
 
 The servant of the owner of a 
 
 wood attempted to apprehend a 
 poacher whom he found there at 
 eight o'clock on the morning of the 
 17th December, and the poacher 
 shot at him : — Held, that this was 
 not a capital offence within 9 Geo. 
 4, c. 31, ss. 11, 12, as there was no 
 proof that the poacher was in pur- 
 suit of the game an hour before 
 sunrise. Rex v. Torrdinson, 7 C. & 
 P. 183— Coleridge. 
 
 The gamekeeper of a person who 
 has merely the right of shooting 
 over land is not justified in appre- 
 hending a person unlawfully being 
 upon such land by night, for the 
 purpose of taking game. Reg\ v. 
 Price, 5 Cox, C. C. 277 — ^Patteson 
 and Talfourd. 
 
 A gamekeeper appointed by a 
 person having only a permission to 
 shoot, trying to take a gun from a 
 poacher, and in the scuffle causing 
 a loaded gun to go off, which killed 
 the poacher, is guilty of manslaugh- 
 ter. Reg. V. Wesley, 1 P. & F. 
 528— Campbell. 
 
 A person having only a right of 
 shooting over land has no right to 
 empower keepers to apprehend par- 
 ties trespassing in search of game ; 
 and on their resisting with no great- 
 er violence than is used by the 
 keepers, they wiU not be liable for 
 an assault ; but if the trespass is in 
 the night, they may be indicted for 
 night poaching. Reg. v. Wood, 1 
 F. & F. 470— Martin. 
 
 To justify the apprehension of an 
 offender, under 1 & 2 WiU. 4, c. 
 32, s. 31, it is only necessary that 
 he should have been made to un- 
 derstand, by the person authorized 
 under that section, that he is re- 
 quired to tell his christian name, 
 surname and place of abode, and 
 that he should have refused to com- 
 ply with such requisition. It is not 
 necessary that he should have been 
 required both to quit the land and 
 also to tell his name. Reg. v. Prest- 
 ney, 3 Cox, C. C. 505— Parke. 
 
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LIMITATION OF TIME. 
 
 389 
 
 2. Limitation of Time for Prose- 
 cution. 
 B. and G. were convicted of night 
 poaching. The indictment was up- 
 on 9 Geo. 4, c. 69 ; by s. 4 of which 
 it is enacted, that the prosecution 
 for every offence " pu.nishable by 
 indictment by virtue of that act 
 shall be commenced within twelve 
 calendar months after the commis- 
 sion of the offence." The offence 
 was committed on the 4th of De- 
 cember, 1845. The information be- 
 fore the justices, and warrant, were 
 on the 19th of December, 1845. 
 
 B. was apprehended and commit- 
 ted on the 5th of September, 1846, 
 and G. on the 21st of October, 
 1846. The indictment was pre- 
 fen-ed on the 5th of April, 1847 :— 
 Held, that the prosecution was com- 
 menced in time, and the conviction 
 right. Reg. v. Brooks, 1 Den. C. 
 
 C. 217; 2C. & K. 402; 2 Cox, C. 
 C. 436. 
 
 Where it appeared that the offence 
 was committed on the 12th of Jan- 
 uary, 1844, and the indictment was 
 preferred on the 1st of March, 1845, 
 and the warrant of commitment by 
 which the defendant was committed 
 to take his trial was given in evi- 
 dence, and it was dated on the 11th 
 December, 1844 : — Held, that it 
 was sufficiently shewn that the 
 prosecution was commenced within 
 twelve calendar months after the 
 commission of the offence, within s. 
 4. Eeg. v. Austin, 1 C. & K. 621 
 —Pollock. 
 
 In case of night poaching by per- 
 sons armed, the offence was com- 
 mitted on the 4th December, 1845. 
 On the 19th December, 1845, in- 
 formation of the offence was made 
 before a magistrate, who on that 
 day granted waiTants to apprehend 
 
 A. and B., two of the offenders. 
 On one of these warrants A. was 
 apprehended, and committed for 
 trial on the l6th September, 1846 ; 
 
 B. being apprehended on the other 
 warrant, and committed for trial on 
 the 21st October, 1846. The in- 
 
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 dictment was preferred and found 
 on the 5th April, 1847 :— Held, that 
 the prosecution was commenced 
 within twelve calendar months after 
 the commission of the offence, and 
 that it was commenced by the in- 
 formation and warrants to appre- 
 hend, or at all events by the appre- 
 hension of the prisoners. Jieg. v. 
 Gibson, 2 C. & K. 402. 
 
 QuEere, whether the preferring of 
 an indictment against a party for 
 night poaching, which is ignored, is 
 a commencement of the prosecu- 
 tion within 9 Geo. 4, c. 69, s. 4, so 
 as to warrant the conviction of the 
 party on another indictment prefer- 
 red four years after the offence? 
 Hex V. Killminster, 7 C. & P. 228 
 — Coleridge. 
 
 The issuing of a warrant of ap- 
 prehension is not a commencement 
 of proceedings, within 9 Geo. 4, c. 
 69, s. 4. Reg. v. Hull, 2 F. & F. 
 16— Pollock. 
 
 Upon the trial of an indictment, 
 in order to prove that the proceed- 
 ings were commenced within twelve 
 months after the commission of the 
 offence a wan-ant for the party's ap- 
 prehension issued within the twelve 
 months was produced ; but the in- 
 formation on which the warrant 
 was founded was not put in evi- 
 dence : — Held, that, in the absence 
 of the information, the warrant was 
 not legal evidence that the proceed- 
 ings had been commenced within 
 the time limited. Reg. v. Parher, 
 9 Cox, C. C. 475 ; L. & C. 459 ; 10 
 Jur., K S. 596 ; 33 L. J., M. C. 135 ; 
 12 W. R. 765 ; 10 L. T., N. S. 463. 
 
 C. was indicted for night poach- 
 ing on the 6th February, 1863. 
 He pleaded guilty, but subsequent- 
 ly applied by his counsel for 
 leave to withdraw the plea, and to 
 move in arrest of judgment, upon 
 the ground that the proceedings 
 against him had not been commenc- 
 ed within twelve calendar months, 
 as directed by 9 Geo. 4, c. 69, s. 4 : 
 — Held, that the application to 
 Avithdraw the plea was one which 
 
390 
 
 NIGHT POACHING. 
 
 ought to be granted, and that, as no 
 warrant or information was 2)ro- 
 duced shewing that proceedings had 
 been commenced- within twelve 
 months, that the objection was fatal. 
 Beg. V. Gasholt, 21 L. T., N. S. 263 
 — Byles. 
 
 3. Indictment. 
 
 An indictment on 57 Geo. 3, c. 
 90, charging a party with having 
 entered into a forest, chase, &c., 
 with intent to destroy game, and 
 being found armed in the night, 
 must, in some way or other, have 
 particularized the place. RexY. Jiid- 
 ley, R. & R. C. C. 515. 
 
 In an indictment for night poach- 
 ing, it is advisable to insert a dis- 
 tinct avennent that the defendants 
 were armed when they entered and 
 were On the land, in addition to the 
 usual allegation, " being then and 
 there by night as aforesaid, armed." 
 Rex V. WUkes, 7 C. & P. 811— 
 Parke. 
 
 In an indictment under 9 Geo. 4, 
 c. 69, s. 9, it is sufficient to charge 
 entering, &c., certain land in the 
 occupation of A., without specifying 
 whether it was inclosed or not. 
 Rex V. Andrews, 2 M. & Rob. 37 — 
 Gurney ; S. P., Reg. v. Morris, 5 
 Cox, C. C. 205. 
 
 Where an indictment alleged that 
 A., B., C, D., to the number of 
 three and more together, did by 
 night unlawfully enter divers closes 
 there situate, and being in the occu- 
 pation of E., and were there and 
 then in the said closes, armed with 
 guns for the purpose of destroying 
 game : — Held, that it did not con- 
 tain a sufficient averment that the 
 defendants were by night in the 
 closes for the purpose of destroying 
 game. Davies v. Rex (in error), 10 
 B. & C. 89 ; 5 M. & R. 78. 
 
 An indictment for night poaching 
 stated the offiance to have been com- 
 mitted in a wood, called " the Old 
 Walk of, and belonging to, and then 
 in the occupation of James, Earl of 
 W." ; and it was proved that the 
 
 occupation was correctly stated, but 
 that the name of the wood was Long 
 Walk, and that it had never been 
 called Old Walk :— Held, a var- 
 iance. Rex V. Owen, Car. C. L. 
 309 ; 1 M. C. C. 118. 
 
 An indictment for assaulting a 
 gamekeeper with a weapon, stated 
 that the defendants were in certain 
 land of J. R., Earl of B., by night, 
 armed with guns, for the purpose of 
 destroying game, and that they 
 were " then and there in the said 
 land by night, as aforesaid, by one 
 W. R., the servant of the said J. 
 R., Earl of B., then and there hav- 
 ing lawful authority to seize and 
 apprehend the said [defendants] 
 found," and that the defendants 
 with the guns assaulted and offered 
 violence to W. R. : — Held, that the 
 indictment was bad, as it did not 
 sufficiently shew that the defend- 
 ants, when found by W. R., were 
 committing any offence against the 
 9 Geo. 4, c. 64. Reg. v. Ournock, 
 9 C. & P. 730— Gurney. 
 
 A count for night poaching may 
 be joined with a count for assault- 
 ing a gamekeeper authorized to ap- 
 prehend, and with counts for assault- 
 ing a gamekeeper in the execution 
 of his duty, and for a common as- 
 sault. Rex V. Finacane, 5 C. & P. 
 551— Parke. 
 
 It is sufficient to allege that the 
 land is land " of and belonging to 
 J. W. D.," without stating it to be 
 in the occupation of J. W.D. Reg. 
 V. RUey, 3 C. & K. 116— Patteson. 
 
 Or to name any particular close, 
 it is sufficient to say, " land in the 
 occupation of B. or C." as the fact 
 may be. Reg. v. Uezzell, T. & M. 
 598 ; 2 Den. C. C. 274 ; 5 Cox, C. 
 C. 188 ; 3 C. & K. 150 ; 15 Jur. 
 434 ; 20 L. J., M. C. 192. 
 
 But " a certain cover in the parish 
 of A." is too general a description 
 to sustain an indictment for poach- 
 ing. Rex V. Grick, 5 C. & P. 508 
 — Vaughan. 
 
 A count for assaulting a game- 
 keeper alleged that the defendants, 
 
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EVIDENCE. 
 
 391 
 
 with other persons, to the number 
 of three or more, entered by night a 
 certain close with guns and other 
 oifensive weapons, for the purpose 
 of taking and destroying game, and 
 then proceeded to allege that the 
 defendants being then and there in 
 the said land, were found by one H. 
 S., the servant of B. W. W., and 
 there with the said guns assaulted 
 and beat the said H. S. : — Held, 
 that the count was defective for not 
 alleging that the defendants were in 
 the close armed with guns, &c., ac- 
 cording to the language of sect. 9 
 of 9 Geo. 4, c. 69. Reg. v. May, 5 
 Cox, C. C. 176 — Patteson. 
 
 An indictment charged A., B. and 
 six others, " that they, being re- 
 spectively armed with guns and 
 other oifensive weapons, entered." 
 A. and B. were each proved to have 
 been ai-med with a gun, the other 
 six with bludgeons. Objection, 
 that the averment, " other offensive 
 weapons," (not specifying what) 
 made the arming of the other six 
 only constructive, which was not 
 sufficient to bring them within the 
 statute : — Held, good. Reg. v. Good- 
 felhw, 1 Den. C. C. 81 ; 1 C. & K. 
 724. 
 
 An indictment under 9 Geo. 4. c. 
 69, s. 1, that on the 20th of Decem- 
 ber, 1854, C. was convicted for that 
 he, within the space of six calendar 
 months last past, by night, after the 
 expiration of the first hour after 
 sunset ; and before the beginning of 
 the first hour before sunrise, did, by 
 night, then and there unlawfully 
 enter a close with a gun, for the 
 purpose of then and there taking 
 and destroying game, and that he 
 was then sentenced to be imprisoned 
 for the period of three calendar 
 months ; that afterwards, to wit, on 
 the 27th of November, a. d. 1858, 
 he was duly convicted, for that he, 
 within six calendar months next be- 
 fote, &c., to wit, on the 24th of 
 November, 1860, in the night of the 
 same day, by night, unlawfully did 
 enter and be in and upon certain 
 
 inclosed land, with certain instru- 
 ments, for the purpose of kilUng, 
 taking and destroying game there- 
 oil, this being his second ofience, 
 and was then adjudged to be im- 
 prisoned for six calendar months, is 
 good, as it sufficiently shews upon 
 the face of it, that two previous 
 convictions of ofienoes within the 
 terms of the act had taken place, 
 Gureton v. Reg. (in error), 1 B. & 
 S. 208 ; 8 Cox, C. C. 481 ; 30 L. J., 
 M. C. 149 ; 9 W. R. 665. 
 
 4. Evidence. 
 
 On an indictment for wounding 
 with intent to prevent law;ful appre- 
 hension, it was proved that the 
 prisoners were found poaching in 
 the night, armed, in a preserve 
 which had belonged to the Earl of 
 L., and then was in the possession 
 of the earl's trustees. The person 
 trying to apprehend was a watcher 
 employed by the head keeper, the 
 latter having been appointed by the 
 earl some twenty years before, and 
 paid by his agent down to the time 
 of the trial ; but the head keeper 
 had never had any direct commu- 
 nication with the trustees : — Held, 
 sufficient proof of an authority to 
 apprehend. Reg. v. Fielding, 2 C. 
 & K. 621— Cresswell. 
 
 Where A. was indicted for night 
 poaching on the land of the prosecu- 
 tor, which, land was in the occupa- 
 tion of a tenant : — ^Held, that it was 
 not necessary, in order to support 
 the indictment, to shew by evidence 
 that A. was there without the per- 
 mission of the tenant, or of the 
 prosecutdV, if the right to take game 
 upon the land had been reserved to 
 him. Rea. v. Wood, Dears. & B. 
 C. C. 1 ; 2 Jur., N. S. 478 ; 25 L. 
 J., M. C. 96. 
 
 An indictment under 9 Geo. 4, c. 
 69, charged, that the prisoners, 
 " were in the Great Ground on the 
 11th February, armed, with intent, 
 then and there to take game." The 
 evidence shewed that the prisoners 
 were all seen, for the first time, in 
 
 Digitized by Microsoft® 
 
392 
 
 NIGHT POACHING. 
 
 the Great Gromid, employed in tak- 
 ing down two nets ; after this was 
 done they picked up some dead 
 hares, which were lying on the 
 ground near the nets, and hanging 
 them on long sticks over their 
 shoulders, walked homewards with 
 them. It also appeared that they 
 had dogs with them in the Great 
 Ground : — Held, that the questions 
 for the jury were, first, whether 
 they were in the Great Ground 
 with the intent to take game at that 
 time, and that such intent might be 
 inferred from the presence of the 
 nets and dogs, though they might 
 have taken the hares elsewhere. 
 Reg. V. Turner, 3 Cox, C. C. 304— 
 Rolfe. 
 
 Held, also, that the allegation 
 that they were armed could not he 
 sustained, unless the jury should be 
 of opinion that they took the sticks 
 for the double purpose of carrying 
 away the game, and of attack or 
 defence in the event of their being 
 interrupted by keepers while in the 
 pursuit of game. Ih. 
 
 5. Oonviclions and Gommitments. 
 
 A conviction under 9 Geo. 4, c. 
 69, s. 1, must allege that the de- 
 fendants, by night, were in certain 
 land for the purpose of talcing game 
 in such land. Fletcher v. GaMiorp, 
 1 New Sess. Cas. 529 ; 9 Jur. 205 ; 
 14 L. J., Q. B. 49. 
 
 A warrant of commitment, re- 
 citing an order of sessions confirm- 
 ing a conviction under 9 Geo. 4, c. 
 69, s. 1, ordering the prisoners, at 
 the expiration of their time of im- 
 prisonment, to find sureties not to 
 offend again, instead of not so to 
 offend again, is ill. Reynolds Ex 
 parte, 8 Jur. 192 ; 13 L. J., M. C. 65 
 — B. C— Wightman. 
 
 The court will 4)resume that the 
 commitment contains a true recital 
 of the conviction ; therefore, where 
 the certiorari is taken away, and 
 the prosecutor seeks, under sect. 7, 
 to avail himself of the conviction to 
 cure a defect in the commitment. 
 
 the prisoner is not bound, nor is it 
 his duty, to bring the conviction be- 
 fore the court. lb. 
 
 On an indictment for night poach- 
 ing, having been twice summarily 
 convicted, the convictions produced 
 contained no allegation that the de- 
 fendant had entered at night : — 
 Held, insufficient evidence of a pre- 
 vious conviction. Reg. v. Merry, 
 2 Cox, C. C. 240— Maule. 
 
 6. Hares or Rabbits. 
 
 By 24 & 25 Vict. c. 96, s. 17, 
 " whosoever shall unlawfully and 
 " wilfully, between the expiration 
 " of the first hour after sunset, and 
 " the beginning of the last hour be- 
 " fore sunrise, take or kill any hare 
 " or rabbit in any warren or ground 
 " lawfully used for the breeding or 
 " keeping of hares or rabbits, wheth- 
 " er the same be inclosed or not, 
 " shall be guilty of a misdemeanor. 
 
 " And whosoever shall unlawful- 
 " ly and wilfully, between the be- 
 " ginning of the last hour before 
 " sunrise and the expiration of the 
 " first hour after sunset, take or kill 
 " any hare or rabbit in any such 
 " warren or ground, or shall at any 
 " time set or use therein any snare 
 " or engine for the taking of hares 
 " or rabbits, shall, on conviction 
 " thereof before a justice of the 
 " peace, forfeit and pay such sum 
 " of money, not exceeding 51., as to 
 "the justice shall seem rheet ; pro- 
 " vided that nothing in this section 
 " contained shall affect any person 
 " taking or killing in the daytime 
 " any rabbits on any sea bank or 
 " river bank in the county of Lin- 
 " coin, so far as the tide shall ex- 
 " tend, or within one furlong of such 
 " bank." ( With the exception of the 
 substitution of defined hours for 
 " night time " and " day time,''' sim- 
 ilar to former provision, 7 & 8 Geo. 
 4, c. 29, s. 30.) 
 
 7 & 8 Geo. 4, c. 27, repealed 3 
 Jac. 1, c. 13 ; 7 Jac. 1, c. 13 ; 5 
 Geo. 3, c. 14 ; and so much of 22 & 
 23 Car. 2, c. 25, as related to this 
 
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OBSCENITY AISID INDECENCY. 
 
 393 
 
 sulyect; and 24 & 25 Vict. c. 95, 
 repeak 7 & 8 Geo. 4, c. 29, s. 30, 
 and 7 Will. 4 & 1 Vict c. 90, s. 5. 
 
 Taking a rabbit in a wire was 
 sufficient to constitute an offence 
 within 5 Geo. 3, c. 14, s. 6, 
 though the rabbit was not Idlled, 
 and though the party never took it 
 away. Rex v. Glover, R. & R. C. 
 C.269. 
 
 Destrojdng rabbits in the night 
 time, in a rick-yard in which they 
 were kept, was not within 7 & 8 
 Geo. 4, c. 29, s. 30. Eex v. Qar- 
 rati, 6 C. & P. 369— Patteson. 
 
 XXV. Obscenity and Indecency. 
 
 1. Obscene Prints and Pictures, 593. 
 
 2. Indecent Exposure, 393. 
 
 1. Obscene Prints and Pictures. 
 
 20 & 21 Vict. c. 83, " provides 
 " additional powers for the suppres- 
 " sion of the trade in obscene books, 
 " prints and pictures." 
 
 It is a misdemeanor to procure 
 indecent prints with intent to pub- 
 lish them. Diigdale v. Meg. (in 
 error), 1 El. & Bl. 435; Dears. C. 
 C. 64 ; 17 Jur. 546 ; 22 L. J., M. C. 
 50. 
 
 But to preserve and keep them in 
 possession with such intent, is not. 
 lb. 
 
 The sale of an obscene print to a 
 person in private, he having in the 
 first instance requested that such 
 prints should be shewn to him, his 
 object being to prosecute the seller, 
 is a sufficient publication to sustain 
 the charge. Reg. v. Oarlih, 1 Cox, 
 C. C. 229. 
 
 Obscene Books and Publications.] 
 Copies of a pamphlet of an obscene 
 nature were seized under 20 & 21 
 Vict. c. 83. The publisher did not 
 keep or sell the pamphlet for the 
 sake of gain, nor to prejudice good 
 morals, but for a purpose which he 
 
 considered to, be good :— Held, that 
 the object of the publisher did not 
 alter the character of his act, the 
 natural consequence of whicli he 
 must be taken to have intended, and 
 the natural consequence being one 
 which would make the publication 
 of the pamphlet a misdemeanor, and 
 in the opinion of the justices who 
 ordered the seizure proper to be 
 prosecuted as such, the seizure was 
 right. Reg. v. Hichlin, 16 W. R. 
 801 ; 37 L. J., M. C. 89 ; 3 L. R., 
 Q. B. 360 ; 11 Cox, 0. C. 19 ; ,S'. G. 
 nom. Reg. v. Wolverhampton [Re- 
 corder), 18 L. T., N. S. 395. 
 
 2. Indecent Exposure. 
 (2Sf3 Vict. c. 47, s. 58. j 
 
 Bathing in the sea on the beach 
 near inhabited houses, from which 
 the person may be distinctly seen, is 
 an indictable offence, although the 
 houses may have been recently 
 erected, and till then it may have 
 been usual for men to bathe in great 
 numbers at the place in question. 
 Rex V. Grunden, 2 Camp. 89 — Mac- 
 donald. 
 
 An indecent exposure in a place 
 of public resort, if actually seen 
 only by one person, no other person 
 being in a position to see it, is not a 
 common nuisance. Reg. v. Webb, 
 1 Den. C. C. 338 ; 3 Cox, C. C. 183; 
 T. & M. 23; 2 C. & K 933; 13 Jur. 
 42 ; 18 L. J., M. C. 39. S. P., Reg. 
 V. Watson, 2 Cox, C. C. 376. 
 
 An averment in an indictment, 
 " in the sight and view of B.," does 
 not mean that B. actually saw it, 
 but only that he might have seen it 
 had he chanced to look. Jb. 
 
 A party was indicted for an inde- 
 cent exposure in an omnibus, sever- 
 al passengers being therein. The in- 
 dictment contained two counts ; one 
 laid the offence as having been com- 
 mitted in an omnibus, and the other 
 in a public highway : — Held, that 
 an omnibus was sufficiently a public 
 place to sustain this indictment. 
 Reg. V. Holmes, Dears. C. C. 207 ; 3 
 
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394 
 
 OBSCEisrrrY and indecency. 
 
 C. & K. 360 ; 17 Jur. 562 ; 22 L. 
 J., M. C. 122 ; 6 Cox, C. C. 216. 
 
 An indiotment for this offence, 
 which does not conclude ad com- 
 mune nocumentum, is aided by 14 
 & 15 Vict. c. 100, s. 25. Ih. 
 
 4^n indictment charged two de- 
 fendants with indecent exposure of 
 their persons in an open and public 
 place : — Held, that an urinal with 
 boxes or divisions for the conveni- 
 ence of the public, and situated in 
 an oiDen market, was not a public 
 place within the meaning of the al- 
 legation. Reg. V. Orchard, 3 Cox, 
 C. C. 248. 
 
 An indictment alleging that A. 
 " in a certain open and public place 
 did lay his hands on the person and 
 private parts of B. with intent to 
 stir up in his own and B.'s mind un- 
 natural and sodomitical desires and 
 incUnations, and to incite B. to the 
 committing and perpetrating with 
 A. divers unnatural and sodomitical 
 acts, and that B. in the said open 
 and public place, did permit and 
 suffer A. to lay his hands, &c., with 
 the like intent," is bad, as not stat- 
 ing any offence with legal certainty. 
 lb. 
 
 In order to render a person liable 
 to an indictment for indecently ex- 
 posing his person in a public place, 
 it is not necessary that the exposure 
 should be made in a place open to 
 the public. If the act is done where 
 a great number of persons may be 
 offended by it, and several see it, it 
 is sufficient. Heg. v. ThaMman, 9 
 Cox, C. C. 388 ; L. & C. 326 ; 12 
 W. R. 88; 9 L. T., N. S. 425; 33 L. 
 J., M, C. 58. 
 
 Where a man exposed himself in- 
 decently on a roof at the back of a 
 house in London, so as to be visible 
 to persons in the back jDremises of 
 many other houses, but not so as to 
 be capable of being seen from any 
 place open to the public, and seven 
 persons in one house saw the ex- 
 posure, the conviction was held 
 good. lb. 
 
 An indictment for indecent ex- 
 
 posure, charging the offence to have 
 been committed on a highway, is 
 not sustained by evidence that the 
 offence was- committed in a place 
 near the highway, though in full 
 view of it. Beg. v. Farrell, 9 Cox, 
 C. C. 446. 
 
 An indecent exposure seen by one 
 person only, and capable of being 
 seen by one person only, is not an 
 offence at common law. Secus, if 
 there are other persons in such a 
 situation as that they may be wit- 
 nesses of the exposure. lb. 
 
 The prisoners committed fornica- 
 tion in open day, on a common, in 
 the sight of one witness only, but so 
 that any one passing over the com- 
 mon, or along a public footway ad- 
 jacent, could have seen them. There 
 was no proof that any persons were 
 passing over the common or along 
 the footway at the time. Quaere, 
 whether this was an indictable of- 
 fence? Beg. V. EUiott, L. & C. 103. 
 
 An indictment for an indecent ex- 
 posure of the person before one J. 
 S., with the intent to provoke him 
 to commit an unnatural crime, 
 which had been removed by the de- 
 fendant by certiorari, is not within 
 s. 23 of 7 Geo. 4, c. 64, so as to en- 
 able the court before whom it is 
 tried to grant the costs of the pros- 
 ecution. Beg. V. , 3 N. & P. 
 
 627 ; 8 A. & E. 589. 
 
 A person is indictable for a com- 
 mon nuisance by indecently expos- 
 ing his person in a public place, 
 though the exposure is made in a 
 place not open to the public, if the 
 act is done where a great number of 
 persons may be offended by it, and 
 several see it. Beg. v. Mallam, 33 
 L. J., M. C. 58. 
 
 A herbalist, who publicly exposes 
 and exhibits in his shop, on a high- 
 way, a J)icture of a man naked to 
 the waist and covered with eruptive 
 sores, so as to constitute an exhibi- 
 tion offensive and disgusting, is guil- 
 ty of a nuisance, although there is 
 nothing immoral or indecent in the 
 picture, and his motive was inno- 
 
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PERJUEY— FALSE OATHS. 
 
 395 
 
 cent. Reg. v. Grey, 4 F. & F. 73 
 — Willes. 
 
 Bathing near a public footway, 
 frequented by females, is unlawful, 
 and renders the party so bathing 
 liable to be indicted for indecency. 
 Nor is it any defence that the place 
 has been always used as a resort for 
 bathers ; or that the exposure has 
 not been beyond what is necessarily 
 incident to such bathing. H^g. v. 
 Reed, 12 Cox, C. C. 1. 
 
 An indictment charged two de- 
 fendants with indecent exposure of 
 their persons in a public place, the 
 same being a public urinal : — Held, 
 that the urinal was a public place, 
 and that the conmiission of the in- 
 decency thereiu was indictable. Reg. 
 V. Harris, 11 Cox, C. C. 659. 
 
 XXVI. Peejuet, False Oaths 
 AND False Declarations. 
 
 10. 
 
 11. 
 
 12. 
 13. 
 
 u. 
 
 15. 
 
 False Oaths, 395. 
 On Affidavits, 398, 
 Before Justices, 400. 
 Before Surrogates, 402. 
 Before Arbitrators, 402. 
 Indictment and Information, 403. 
 Amendment of Variances, 410. 
 Evidence, 411. 
 
 Proof by Judges' Notesof Evidence 
 414. 
 
 Proof of Particular Averments, 
 Proof of Indictm£nt, 416. [414. 
 Witnesses and Corroborative Evi- 
 dence, 416. 
 Trial, 418. 
 
 False Declarations, 419. 
 (a.) Customs, 419. 
 
 On Registration of Voters 
 and at Parliamentary Elec- 
 tions, 419. 
 Corporate, 420. 
 Before Magistrates, 420. 
 On Registration of Births, 
 Deaths or Marriages, 421 . 
 Seditious Practices and Unlawful 
 Oaths, 422. 
 
 fb; 
 
 (0) 
 
 1. Mtlse Oaths. 
 
 The offence.]— Bj 22 & 23 Vict. 
 c. 17, s. 1, " a bill of indictment for 
 " perjury or subornation of perjury 
 " cannot be presented to or found 
 
 " by a grand jury unless preferred 
 " without previous authorisation." 
 
 By 14 & 15 Vict. c. 99, s. 16, 
 " every court, judge, justice, officer, 
 " commissioner, arbitrator or other 
 " person now (1851) or hereafter 
 " having by law or by consent of 
 " parties, authority to hear, receive 
 " and examine evidence, is empow- 
 " ered to administer an oath to all 
 " such witnesses as are legally called 
 " before them respectively." 
 
 5 Eliz. c. 9, made perpetual by 22 
 Eliz. c. 5, s. 2, and 21 Jac. 1, c. 28, 
 s. 8 ; 2 Geo. 2, c. lb, made perpetual 
 by 9 Geo. 2, c. 8 ; 7 Will. 4 & 1 
 Vict. c. 23. — " There is a great num- 
 " ber of perjury clauses in various 
 " acts of Parliament, each relating 
 " to the oaths respecting the subject 
 " matter of those acts respectively." 
 
 To found an indictment for per- 
 jury, the requisite circumstances are 
 these : the oath must be taken in a 
 judicial proceeding before a compe- 
 tent jurisdiction; and it must be ma- 
 terial to the question depending and 
 false. Rex v. Aylett, 1 T. R. 63. 
 
 With respect to the falsity of an 
 oath, it has been considered to be 
 immaterial whether the fact which 
 is sworn to be in itself true or false. 
 Rex V. Edwards, 3 Russ. C. & M. 1. 
 
 A man may be indicted for swear- 
 ing that he believes a fact to be 
 true which he must know to be 
 false, although he does not swear 
 positively. Rex v. Pedley, 1 Leach, 
 C. C. 325. 
 
 Falsehood, not strictly amounting 
 to perjury, is an indictable offence 
 as a misdemeanor. Eix, parte Over^ 
 ton, 2 Rose, 257. 
 
 Inciting a witness to give partic- 
 ular evidence when the inciter does 
 not know whether it is true or false, 
 is a high misdemeanor, especially if 
 he being an attorney on one side, 
 gets himself employed for that pur- 
 pose on the other side : at least, if 
 the evidence is given accordingly. 
 lb. 
 
 Semble, that taking a false oath 
 before a court-martial is perjury at 
 
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396 
 
 PERJURY. 
 
 common law. Reg. v. Heane, 4 B. 
 & S. 947 ; 9 Cox, C. C. 433 ; 10 
 Jur., N. S. 724; 9 L. T., K S. 719 ; 
 12 W. R. 417. 
 
 " But by the Annual Mutiny Act 
 " (1866), 29 & 30 Vict. c. 9, s. 13, 
 " all general and other courts-mar- 
 " tial shall administer an oath to 
 " every witness or other person who 
 " shall be examined before any such 
 " court, in any manner relating to 
 " any proceeding before the same." 
 
 Wilful and corrupt false swearing 
 before a local marine board, duly 
 and lawfully appointed and consti- 
 tuted, upon a matter material to an 
 inquiry then being lawfu.lly invest- 
 igated by them, in pursuance of the 
 17 & 18 Vict. c. 104, and 25 & 26 
 Vict. c. 63, is perjury. JReg. v. 
 Tondinson, 1 L. R., C. C. 49 ; 12 
 Jur., N. S. 945 ; 36 L. J., M. C. 41; 
 15 W. R. 46 ; 15 L. T., N. S. 188. 
 
 Perjury cannot be committed in 
 evidence given before commissioners 
 of bankrupt, when there was no 
 good petitioning creditor's debt to 
 support the flat. Reg. v. Ewington, 
 2 M. 0. C. 223 ; Car. & M. 319. 
 
 A. was indicted for perjury, al- 
 leged to have been committed on the 
 trial of B. for perjury. The indict- 
 ment against A. averred, that the 
 evidence he gave on the trial of B. 
 was material, and that B. was con- 
 victed. B. was ctinvicted and sen- 
 tenced, but the judgment against B. 
 was afterwards reversed on writ of 
 error : — Held, that the reversal of 
 the judgment against B. was no 
 ground of defence for A., as shewing 
 that his evidence could not have 
 been material, and that it did not 
 negative the allegation that B. had 
 been convicted. Reg. v. Meek, 9 
 C. & P. 513— Williams. 
 
 In an answer in chancery to a bill 
 in equity against the defendant for 
 specific performance of an agree- 
 ment relating to the purchase of 
 land, he relied on the Statute of 
 Frauds (the agreement not being in 
 writing), and also denied having en- 
 tered into any such agreement. Up- 
 
 on this denial in his answer he was 
 indicted for perjury: — Held, that 
 the denial of an agreement, Which, 
 by the Statute of Frauds, was not 
 binding on the parties, was imma- 
 terial and irrelevant, and that the 
 defendant was entitled to an ac- 
 quittal. Rex V. Dunston, R. & M. 
 109— Abbott. 
 
 Peijury cannot be assigned on an 
 answer in chancery, denying a prom- 
 ise absolutely void by the Statute of 
 Frauds. Rex v. BenesecJi, Peake's 
 Add. Cas. 93 — Kenyon. 
 
 Or form the subject of an indict- 
 ment where the supposed perjury 
 depends upon the construction of a 
 deed. Rex v. Grespigny, 1 Esp. 280 
 — Kenyon. And see Rex v. Pepys, 
 Peake, 138. 
 
 If the record of a cause is errone- 
 ous, no perjury can be assigned for 
 false testimony given in the course 
 of the trial. JRex v. Cohen, 1 Stark, 
 5 1 1 — Ellenborough. 
 
 Perjury may be assigned as to 
 what a man has sworn that he 
 thought or believed ; the difficulty, 
 if any, being in the proof of the as- 
 signment. Reg. V. ScMesinger, 10 
 Q. B. 670 ; 2 Cox, C. C. 200 ; 12 
 Jur. 283 ; 17 L. J., M. C. 29. 
 
 A witness, having sworn at a trial 
 of a cause, that he did not write 
 certain words in the presence of D., 
 it is a good assignment of perjury, 
 that he did write them in the pres- 
 ence of D. Ih. 
 
 The presence of D. may be a fao' 
 as materiafl as the writing of th' 
 words. lb. 
 
 A. brought an action against B, 
 and his partners for the price oi 
 wheat, and recovered a verdict on 
 the bought and sold notes. B. and 
 his partners filed a bill in equity 
 against A., which stated that the 
 bought and sold notes did not con- 
 tain all the terms of the contract, as 
 it had been also agreed by parol 
 between A. and B. that the wheat 
 should be paid for by a draft at 
 three months; and the prayer of the 
 bill was, that A. should be restrain- 
 
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FALSE OATHS. 
 
 397 
 
 ed from suing out execution. A., 
 by his answer, denied the statement 
 in the bill ; and the ,bill was dis- 
 missed: — Held, that if this denial 
 by A. was wilfully false, it amount- 
 ed to perjury. Reg. v. Yates, Car. 
 & M. 132 ; 5 Jur. 636— Coleridge. 
 
 Every question on cross-examina- 
 tion of a witness, which goes to his 
 credit, is material. Reg. v. Overton, 
 Car. & M. 655 ; 2 M. C. C. 263. 
 
 A question having no general 
 bearing on the matters in issue may 
 be made material by its relation to 
 the witness's credit, and false swear- 
 ing thereon will be perjury. Ih. 
 
 On a trial where it was material to 
 prove whether J. had died before 
 JVI., the defendant produced a docu- 
 ment purporting to be a copy of 
 J.'s will, and falsely swore that he 
 had examined it with the original 
 will in the registry ; and also, that 
 he had examined a memorandum at 
 the foot of the copy of the will, 
 with the entry in a book called the 
 Act Book in the same registry. 
 The judge offered to admit the evi- 
 dence, but it was withdrawn ; it 
 was, in point of law, inadmissible : 
 — Held, that the circumstances that 
 the evidence was inadmissible, and 
 was withdrawn, did not affect the 
 question of perjury, as it could not 
 purge the false swearing ; and that, 
 as it was not material whether pro- 
 bate of J.'s will was granted in the 
 Ufetime of M., if the evidence of the 
 prisoner had been received it would 
 have been material to the issue, 
 and, consequently, that the false 
 oath of the prisoner amounted to 
 perjury. Reg. v. Phillpotts, 2 Den. 
 C. C. 302 ; 3 C. & K. 135 ; T. & 
 M. 607 ; 16 Jur. 67 ; 21 L. J., M. C. 
 18 ; 5 Cox, C. C. 363. 
 
 In an action in a county court by 
 an executrix for goods sold, she 
 falsely swore on cross-examination 
 that she had never been tried at the 
 Old Bailey, and had never been in 
 custody at the Thames Police Sta- 
 tion : — Held, on the trial of an in- 
 dictment for perjury, that this evi- 
 
 dence was material. Reg. v. Lavey, 
 3 C. & K. 26— Campbell. 
 
 Semble, that whether the evidence 
 is material or not is a question to be 
 left to the jury. Ih. See Reg. v. 
 Courtney, 7 Cox, C. C. HI. 
 
 To convict a person of perjury in 
 swearing falsely before a grand jury, 
 it is not sufficient to shew that the 
 person swore to the contrary before 
 the examining magistrate, as non 
 constat which of the contradictory 
 statements was the true one. Reg. 
 V. Hughes, 1 C. & K. 519— Tindal. 
 
 Perjury may be assigned upon ev- 
 idence going to the credit of a mate- 
 rial witness in a cause, although 
 such evidence, being legally inad- 
 missible, ought not to have been re- 
 ceived. Reg. V. Gibbon, L. & C. 
 109 ; 9 Cox, C. C. 105 ; 8 Jur., IST. 
 S. 159 ; 31 L. J., M. C. 98 ; 10 W. 
 R. 350 ; 5 L. T., N. S. 805. 
 
 G. was indicted for perjury, in 
 having falsely sworn that in Septem- 
 ber, 1860, he had carnal knowledge 
 of A. A. had obtained an affihation 
 summons against H., and in her 
 cross-examination denied having had 
 connexion with the defendant in 
 September, 1860 (a time which 
 could not have made him the fath- 
 er of the child). The defendant was 
 called as a witness on behalf of H., 
 and swore that he had connexion 
 with A. in the month named : — Held, 
 that although his evidence was le- 
 gally inadmissible, yet, being admit- 
 ted, it became material, and perju- 
 ry might be assigned upon it. lb, 
 
 A defendant was sued in a county 
 court by the name of Bernard Ed- 
 ward M. The judge decided that 
 the plaintiff was entitled to recover, 
 and whilst determining how the de- 
 fendant should pay the debt, asked 
 him his name ; when he swore that 
 it was Edward, not Bernard, only 
 Edward ; and thereupon the judge 
 refused to amend, and struck out 
 the cause. The defendant was in- 
 dicted for perjury; and at the trial 
 it was proved that he had wilfully 
 and corruptly sworn falsely in the 
 
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398 
 
 PERJURY. 
 
 above answers, and the jury con- 
 victed him : — Held, that the con- 
 viction was right ; the answers be- 
 ing sufficiently material to the mat- 
 ter under inquiry. Reg. v. MvMany, 
 10 Cox, C. C. 97 ; L. & C. 593 ; 11 
 Jur., N. S. 492 ; 34 L. J., M. C. 
 Ill ; 13 W. R. 726 ; 12 L. T., K 
 S. 549. 
 
 An unniarried woman having re- 
 covered judgment in a county court 
 against A., obtained a judgment 
 summons against him from the Sher- 
 iffs' Court, London. At the hear- 
 ing, it having been ascertained that 
 the plaintiff had married in the 
 meantime, the judge amended the 
 title of the cause by inserting the 
 husband's name : — Held, that he 
 had no power to do so, and conse- 
 quently, that an indictment for per- 
 jury could not be maintained against 
 the defendant for false evidence giv- 
 en at that hearing. Reg. v. Pearce, 
 3 B. & S. 531 ; 9 Cox, C. C. 258 ; 9 
 Jur., N. S. 647 ; 11 W. R. 235; 7 L. 
 T., N. S. 597. 
 
 H. was indicted for perjury in an 
 affidavit made under the Bills of 
 Sale Act, 1854(17 & 18 Vict. c. 
 36), for the purpose of getting a bill 
 of sale filed. The affidavit was 
 sworn before a commissioner for 
 taking affidavits in the court of 
 Queen's Bench : — Held, that his of- 
 fence did not constitute perjury, but 
 that he was guilty of taking a false 
 oath, which offence was under the 
 circumstances a common law misde- 
 meanor. Reg. V. Hodgkiss, 1 L. 
 R., C. C. 212 ; 18 W. R. 150 ; 39 
 L. J., M. C. 14 ; 21 L. T., N. S. 564. 
 
 C. was indicted for perjury com- 
 mitted on the hearing of a summons 
 which had been taken out against 
 himself, for permitting gamblmg in 
 his house contrary to the tenor of 
 his licence, under 9 Geo. 4, c. 61. 
 The defendant had tendered him- 
 self as a witness, representing him- 
 self as the son of C, and had there- 
 upon been sworn and given evidence 
 on behalf of C, who was really him- 
 self, and that evidence formed the 
 
 subject of the indictment : — ^Held, 
 that as he was not a competent wit- 
 ness and could not give evidence in 
 his own behalf, the magistrates had 
 no power to swear him or receive 
 his evidence, and that he could not 
 therefore be guilty of perjury. Reg. 
 V. Clegg, 19 L. T., N. S. 47— Han- 
 nen. 
 
 2. On Affidavits. 
 
 No perjury can be assigned upon 
 a foreign affidavit. Musgrave v. Me- 
 dex, 19 Ves. 652. 
 
 But any person making, or know- 
 ingly using a false affidavit made 
 abroad, is guilty of a misdemeanor 
 in attempting to pervert public jus- 
 tice, andis punishable by indictment. 
 Omealy v. NeweU, 8 East, 364. 
 
 Peijury may be assigned upon an 
 affidavit of an attorney of the court, 
 made in answer to a chaj'ge exhibit- 
 ed against him in a summary way. 
 Rex V. Crossley, 7 T. R. 315. 
 
 An indictment for perjury, assign- 
 ed on an affidavit sworn before the 
 court, need not state, nor is it nec- 
 essary to prove, that the affidav- 
 it was filed of record, or exhibited' 
 to the court, or in any manner used 
 by the party, lb. 
 
 An indictment may be supported 
 against a marksman, for swearing 
 falsely in an affidavit, though it 
 would not be receivable in the court 
 it was sworn in, because the jurat 
 did not state that it had been read 
 over to the party swearing it ; but 
 the person administering the oath 
 must prove that the party swearing 
 it in fact understood its contents, 
 and the perjury is complete at the 
 time of the swearing of the affidavit ; 
 and whether it is receivable in the 
 court or not is immaterial, if the 
 reason why it is not receivable is, 
 that some formal regulation is not 
 complied with. Rex v. HaUey, 1 
 C. & P. 258 ; R. & M. 94— Little- 
 dale. 
 
 A person cannot be convicted of 
 perjury on an affidavit, if it refers 
 to a former affidavit, which the pros- 
 
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ON" AFFIDAVITS. 
 
 399 
 
 ecutor is not in a conditioji to prove. 
 Ih. 
 
 Semble, that a person may be con- 
 victed of perjury contained in an af- 
 fidavit intitled, in a cause, " A. B. 
 against C. D. and others," although, 
 by the rules of the courts, all affi- 
 davits should in their title name all 
 the plaintiffs and all the defendants. 
 Beg V. Christian, Car. & M. 388 
 ■'— Denman. 
 
 Quaere, whether, in an affidavit, 
 the description of the deponent at 
 the commencement of it is a part of 
 what he swears. Reg. v. Chapman, 
 1 Den. C. C. 432 ; 2 C. & K. 846 ; 
 T. & M. 90 ; 13 Jur. 885 ; 18 L. J., 
 M. C. 152. 
 
 But if in an indictment for swear- 
 ing falsely before a surrogate to ob- 
 tain a marriage licence, this and oth- 
 er things material are alleged to be 
 falsely sworn (but not alleging the 
 false swearing to be in an affidavit), 
 proof of the false swearing as to any 
 one of the other things will sustain 
 the count. lb. 
 
 A party filing a bill for an injunc- 
 tion, and making an affidavit of 
 matters material to it, is indictable 
 for perjury committed in that affi- 
 davit, though no motion was ever 
 made for the injunction. Hex v. 
 White, M. & M. 271— Tenterden. 
 
 Where perjury was charged to 
 have been committed in that which 
 was ia effect the affidavit on an in- 
 tei-pleader rule, and the indictment 
 set out the circumstances of the pre- 
 vious trial, the verdict, the judg- 
 ment, the fieri facias, the levy, the 
 notice by the prisoner to the sheriff 
 not to sell, and the prisoner's affi- 
 davit that the goods were his prop- 
 erty, but omitted to state that any 
 rule was obtained according to the 
 Interpleader Act (1 & 2 Will. 4, c, 
 58) : — Held, that the indictment 
 was bad, as the affidavit did not ap- 
 pear to have been made in a judicial 
 proceeding. Jieg. v. Bishop, Car. 
 & M. 302— Coleridge. 
 
 In an indictment for making a false 
 affidavit, it is sufficient to state that 
 
 the defendant came before A., and 
 took his corporal oath (A. having 
 power to administer an oath) , with- 
 out setting out the nature of A.'s au- 
 thority. Rex V. Callanan, 6 B. & 
 C. 102 ; 9 D. & R. 97. 
 
 Where perjury is assigned upon 
 several parts of an affidavit, those 
 parts may be set out in the indict- 
 ment as if continuous, although 
 they are in fact separated by the in- 
 troduction of other matter. lb. 
 
 Before 17 & 18 Vict. c. 78, a mas- 
 ter extraordinary in Chancery had 
 no authority to administer oaths in 
 matters before the Court of Admi- 
 ralty ; and a conviction for perjury 
 in an affidavit used in the Court of 
 Admiralty,' but sworn before a mas- 
 ter extraordinary in Chancery, could 
 not be supported. Reg. v. ^ne, 
 Dears. C. C. 251 ; 17 Jur. 1106 ; 23 
 L. J., M. C. 14. 
 
 The 1 & 2 Vict. c. 110, s. 8, con- 
 tained provisions for filing affidavits 
 of debt against a trader, and his be- 
 ing deemed to have committed an 
 act of bankruptcy on not doing cer- 
 tain things. The 5 & 6 Vict. c. 
 122, contained other provisions re- 
 lating to the same matter ; and sect. 
 67 enacts, that affidavits to be made 
 in matters of bankruptcy, or under 
 any statute relating to bankrupts or 
 this act, shall be sworn before a reg- 
 istrar of the Court of Bankruptcy. 
 On an indictment for perjury, upon 
 an affidavit made imder 1 & 2 Vict, 
 c. 110, s. 8, and sworn before the 
 registrar of the Court of Bankrupt- 
 cy :— Held, that 1 & 2 Vict. c. 110, 
 so far as regarded sect. 8, was a 
 statute relating to bankrupts within 
 5 & 6 Vict. c. 122, s. 67, and that 
 the affidavit related to matters of 
 bankmptcy, and, therefore, was 
 sworn before competent authority. 
 Reg. V. Dunn, 11 Jur. 908 ; 16 L. 
 J., Q. B. 382; 12 Q. B. 1026. 
 
 An affidavit to hold bail may be 
 sworn before the issuing of the writ 
 ofsummonsinthe action ; and, there- 
 fore, an indictment for perjury com- 
 mitted in such an affidavit need 
 
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400 
 
 PERJURY. 
 
 not state that any action was pend- 
 ing. King v. Beg. (in error), 3 
 Cox, C. C. 561 ; 14 Q. B. 31 ; 18 
 L. J., Q. B. 258— Exch. Cham. 
 
 An indictment for perjury in an 
 affidavit stated the affidavit to have 
 been sworn " before R. G. W., then 
 and there being a commissioner, du- 
 ly authorized and empowered to 
 take affidavits in the county of Glou- 
 cester, in or concerning any cause 
 depending in the Court of Excheq- 
 uer at Westminster." It was prov- 
 ed by R. G. "W. that he had acted as 
 a commissioner for taking affidavits 
 in the Exchequer for ten years, but 
 had never seen his commission ; and 
 that, ten years ago, he applied to 
 his agent to procure for him a com- 
 mission to take affidavits in the Ex- 
 cheguer, and that his agent had 
 told him that he had done so : — Held, 
 that the proof of R. G. W.'s acting 
 as a commissioner was primS, facie 
 evidence that he was so. Reg. v. 
 Newton, 1 C. & K. 469— Atcherley, 
 Seijt. 
 
 F. was indicted for perjury, com- 
 mitted by deposing to an affidavit 
 in a cause wherein he was the plaint- 
 iif, and E. the defendant, that he 
 owed him bOl. : — Held, that, in sup- 
 port of this indictment, evidence 
 was not admissible, that the cause 
 of F. against E. was, after the mak- 
 ing of the affidavit, referred by con- 
 sent, and an award made that E. 
 owed nothing to F. Meg. v Moreau, 
 11 Q. B. 1028 ; 12 Jur. 626 ; 17 
 L. J., Q. B. 187. 
 
 In perjury, the affidavit of serv- 
 ice of notice or application for leave 
 to issue execution against a share- 
 holder in a joint stock company is 
 insufficient evidence not having the 
 notice annexed to it. JReg. v. Hud- 
 son, 1 F. & F. 56— Cockburn. 
 
 3. Before Justices. 
 An information founded on 1 & 
 2 Will. 4, c. 32, after stating an ap- 
 pearance and information by O. M. 
 against R. R., proceeded thus : — 
 " And the information having been 
 
 also verified upon the oath of W. 
 A., of &c., another credible witness, 
 before me the said justice, hereupon 
 O. M. prays that R. R. may be 
 forthwith summoned, &c. 
 " Exhibited by O. M., ] 
 
 and sworn before me f O. M. 
 
 the day and year first | W. A. 
 
 above written j 
 
 "W. F. C." 
 The party informed against having 
 appeared before two justices, evi- 
 dence was given by a witness for 
 him. An indictment for perjury 
 having been preferred against this 
 witness, upon which he was found 
 guilty : — Held, that the proceeding 
 before the two justices was informal 
 for want of a deposition on oath of 
 the charge contained in the infor- 
 mation, in pursuance of 6 & 7 Will. 
 4, c. 65 ; and that, therefore, the 
 indictment could not be sustained. 
 Beg. V. Scotton, 5 Q. B. 493 ; D. & 
 M. 501 ; 8 Jur. 400. 
 
 But where an information, not 
 upon oath, was laid before a justice 
 of the peace under the Malicious 
 Trespass Act, 7 & 8 Geo. 4, c. 30, 
 8. 24, who thereupon issued a sum- 
 mons to the party charged. And 
 at the hearing the prisoners were 
 examined as witnesses, and upon 
 the evidence which they gave per- 
 jury was subsequently assigned : — 
 Held, that the hearing before the 
 magistrates was a judicial proceed- 
 ing, and that jurisdiction was giv- 
 en by the 24th section, although the 
 information was not upon oath. 
 Reg. V. Millard, 17 Jur. 400 ; Dears. 
 C. C. 166; 22 L. J., M. C. 108; 6 
 Cox, C. C. 150. 
 
 In a case of perjury committed ' 
 before magistrates, ihe indictment 
 merely stated that .the defendant, 
 intending to subject W. M. to the 
 penalties for felony, went before 
 two magistrates, and " did depose 
 and swear," &c., setting out a de- 
 position, which stated, that W. B. 
 had put his hand into the defend- 
 ant's pocket and taken out a 51. 
 note, and assigning perjury upon it : 
 
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BEFORE JUSTICES. 
 
 401 
 
 — Held, that this was bad, as it did 
 not shew that any charge of felony 
 had been previously made, or that 
 the defendant then made any charge 
 of felony, or that any judicial pro- 
 ceeding was pending before the 
 magistrate. Reg. v. Pearson, 8 C. 
 & P. 119— Coleridge. 
 
 In anilidictmentforperjury,alleg- 
 ed to have been committed on the 
 hearing of an inforinjtion under the 
 Beer Act, 11 Geo. 4, & 1 Will. 4, c. 
 64, s. 15, it is necessary to aver that 
 the justices were acting in and for 
 the division or place in which the 
 house IS situated ; but it is not nec- 
 essary to aver that they were acting 
 in petty sessions, as every meeting 
 of two justices in one place for bus- 
 iness is itself a petty sessions. Reg. 
 V. Rawlins, 8 C. & P. 439— Park 
 and Patteson. 
 
 An indictment alleged that after 
 18 & 19 Vict. c. 118, K. was duly 
 summoned to appear before certain 
 justices, being and acting as two 
 justices of the peace in and for a 
 county, to answer before such jus- 
 tices a certain information and com- 
 plaint against him, of having open- 
 ed his house (a beer-house) on a 
 Sunday, for the sale of beer, after 
 three and before five in the after- 
 noon ; that K. duly appeared before 
 the justices at the petty sessions of 
 a petty sessional division in the 
 county, and that at the hearing, the 
 defendant being called as a witness 
 for K. falsely swore that he had 
 not been in the house of K. at all 
 that day ; that he had never seen a 
 certain policeman, and had not been 
 in B. that day, or for a fortnight be- 
 fore. At the trial it appeared that 
 no information had been laid in sup- 
 port of the summons, but that a su- 
 perintendent of police had stated 
 certain facts to the magistrate's 
 clerk, who had filled up a blank 
 summons against K., which a mag- 
 istrate had signed without making 
 any inquiiy. The summons was 
 not produced. A policeman swore 
 to the fact of the defendant having 
 
 been in K.'s house between the pro- 
 hibited hours, and to confirm him 
 one witness swore he had seen the 
 defendant in B. at two o'clock in 
 the afternoon of the same day ; and 
 another swore that she had seen him 
 there between three and four on the 
 same day, on the road leading and 
 close to K.'s beer-house : — Held, 
 that it was sufficiently alleged in 
 the indictment that the offence was 
 one over which the justices had ju- 
 risdiction, and that it was commit- 
 ted in a place where they had jm-is- 
 diction ; that the production of an 
 information at the trial was not nec- 
 essary, and that the corroborative 
 evidence was sufficient. Reg. v. 
 Shaw, L. & C. 579 ; 10 Cox, C. C. 
 66 ; 11 Jur., N. S. 415 ; 34 L. J., 
 M. C. 169 ; 13 W. R. 692 ; 12 L. 
 T., N. S. 470. 
 
 Perjury was committed before 
 magistrates, upon the second appli- 
 cation for a bastardy order, a for- 
 mer application having been dis- 
 missed on the merits: — Held, that 
 the magistrates had jurisdiction, and 
 that the prisoners were properly 
 convicted. Reg. v. Cooke, 2 Den. 
 C. C. 462 ; 16 Jur. 434 ; 21 L. J., 
 M. C. 136. 
 
 A summons, after the birth of a 
 child, under 7 & 8 Vict. c. 101, 
 s. 2, against the putative father, 
 was issued on the personal applica- 
 tion of the mother of the bastard 
 child, not upon oath. The putative 
 father appeared to the summons, 
 and defended the case on the merits, 
 without objecting that the sum- 
 mons had issued on the statement 
 of the woman, not on oath : — Held, 
 that the putative father could not 
 afterwards raise the objection ; and 
 that he was hable to be indicted for 
 perjury committed by him on the 
 hearing of the summons. Reg. v. 
 Berry, 8 Cox, C. C. 121 ; 5 Jur., 
 N. S. 320 ; Bell, C. C. 46 ; S. P., 
 Reg. V. Simmons, Bell, C. C. 168 ; 
 8 Cox, C. C. 190; 5 Jur., N. S. 
 578. 
 
 Held, also, that evidence of pay- 
 
 FisH. Dig.— 30. Digitized by Microsoft® 
 
402 
 
 PERJUKY. 
 
 ment of money by the putative fa- 
 ther within twelve months of the 
 hirth of the child, being evidence 
 of the paternity, was a material 
 fact on the hearing of the sum- 
 mons, lb. 
 
 The mother of a bastard, having 
 been resident with her parents in 
 one petty sessional division, went 
 to lodge at D. in another division 
 fox the purpose of affiliating her 
 child, D. being nearer and more 
 convenient for her than the place 
 where the magistrates acting for 
 the other division met. She lodged 
 at D. three weeks before she ob- 
 tained the summons, having in the 
 interval made one unsuccessful ap- 
 pUcation ; and after obtaining the 
 order went into service in the divis- 
 ion in which her parents resided, 
 but without returning to them ; and 
 she stated that she could not go 
 back to them as they had nothing 
 for her to do. Whilst at D. she 
 had no other home : — ^Held, that 
 •the jury was warranted in finding 
 that at the time of her application 
 -to the magistrates at D. she was re- 
 siding within that petty sessional 
 division ; that consequently the 
 magistrates had jurisdiction, and a 
 conviction for perjury committed 
 by her on that occasion was right. 
 Reg.. V. Hughes, 7 Cox, C. C. 286 ; 
 Dears. & B. C. C. 188. 
 
 After the expiration of his term 
 of apprenticeship, an apprentice sum- 
 moned his master before a magis- 
 trate for neglecting to pay his wages, 
 and upon the hearing of the com- 
 plaint under 4 Geo. 4, c. 34, s. 2, the 
 apprentice gave false evidence: — 
 Held, that whether the 4 Geo. 4, c. 
 34, s. 2, required or not the com- 
 plaint to be made before the expir- 
 ation of the apprenticeship, the mag- 
 istrate having general jurisdiction 
 over the subject of complaint, per- 
 jury could be assigned on the false 
 evidence given before him. Beg. v. 
 Froud, 16 L. T., N. S. 364 ; 10 Cox, 
 C. C. 455 ; 1 L. R., C. C. 71 ; 36 
 L. J.,M. C. 62; 15W. R. 796. 
 
 4. JBefore Surrogates. 
 
 The taking of a false oath before 
 a surrogate, to procure a marriage 
 hcence, will not support a prosecu- 
 tion for peijury. Rex v. Foster, 
 R. & R. C. C. 459. 
 
 If an indictment for taking a 
 false oath before a surrogate,' to 
 procure a marriage licence, only 
 charges the taking of false oath, 
 without stating it was for the pm-- 
 pose of procuring a licence, or that 
 a licence was procured thereby, the 
 party cannot be punished thereon 
 as for a misdemeanor. lb. 
 
 A. was indicted for making a 
 false oath before a surrogate, for 
 the purpose of obtaining a marriage 
 licence : — ^Held, first, that a surro- 
 gate has a general power to ad- 
 minister an oath in that behalf, so 
 as to make a false oath a misde- 
 meanor. Meg. V. Chapman, 1 Den. 
 C. C. 432 ; T. & M. 90 ; 2 C. & K. 
 846 ; 13 Jur. 885; 18 L. J., M. C. 
 152. 
 
 Held, secondly, that such false 
 oath is a misdemeanor, as being 
 made with a fraudulent intention, 
 in a matter of pubhc concern. lb. 
 
 Held, thirdly, that it was imma- 
 terial whether the marriage actu- 
 ally took place or not. Tb. 
 
 An illegitimate child being fihus 
 nulUus, an indictment charging a 
 defendant with taking a false oath 
 before a surrogate, and that E. was 
 the natural and lawful father of E. 
 E., and that his consent was neces- 
 sary as such father, under 4 Geo. 4, 
 c. 76, cannot be sustained. Reg. v. 
 Fairlie, 9 Cox, C. C. 209— Gurney, 
 Recorder. 
 
 5. Before Arbitrators. 
 
 Where peijury is assigned upon 
 evidence given before an arbitrator, 
 upon a reference at Nisi Prius, of a 
 cause and all matters in difference 
 between the parties, it must be dis- 
 tinctly shewn whether the evidence 
 was material in respect of the mat- 
 ters in issue in the cause, or of the 
 other matters in difference between 
 
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INDICTMENT AND INFORMATION. 
 
 403 
 
 the parties. Meg. v. JBall, 6 Cox, 
 C. C. 360. 
 
 A., a defendant in a suit tried 
 before a county court judge, gave 
 false evidence before an arbitrator, 
 to whom the suit was referred, and 
 by whom A. was sworn: — Held, 
 before 14 & 16 Vict. c. 99, s. 16, 
 that under 9 & 10 Vict. c. 95, s. 77, 
 the arbitrator had no authority to 
 administer an oath, and therefore 
 A. was not liable to be indicted for 
 perjury. Req. v. Hallett, 2 Den. 
 C. C. 237 ; T. & M. 563 ; 15 Jur. 
 433 ; 20 L. J., M. C. 197 ; 5 Cox, 
 C. C. 238. 
 
 A cause was referred by a judge's 
 order to C. D. ; and by the order it 
 was directed that the witnesses 
 should be' sworn before a judge, 
 " or before a commissioner duly 
 authorized." A witness was sworn 
 before a commissioner for taking 
 affidavits, and examined viva voce 
 by the arbitrator : — Held, that a 
 witness so sworn was not indictable 
 for perjury. Hex v. ITanJcs, 3 C. 
 & P. 419— Gaselee. 
 
 6,. Indictment and Information. 
 
 Form.]— The 23 Geo. 2, c. 11, 
 ' provides for the more easy fram- 
 ' ing of indictments for perjury ; 
 'and by 14 & 15 Vict. c. 100, s. 
 '20, in every indictment for per- 
 ' jury, or for unlawfully, wilfully, 
 ' falsely, fraudulently, deceitfully, 
 ' maliciously, or corruptly taking, 
 ' making, signing, or subscribing 
 ' any oath, affirmation, declaration, 
 ' affidavit, deposition, bill, answer, 
 ' notice, certificate, or other writ- 
 ' ing, it shall be sufficient to set 
 ' forth the substance of the offence 
 ' charged upon the defendant, and 
 ' by what court, or before whom 
 ' the oath, affirmation, declaration, 
 ' affidavit, deposition, bill, answer, 
 ' notice, certificate, or other writ- 
 ' ing was taken, made, signed, or 
 ' subscribed, without setting forth 
 'the bill, answer, information, in- 
 ' dictment, declaration, or any part 
 ' of any proceeding, either in law 
 
 Digitized by Microsoft® 
 
 " or in equity, and without setting 
 " forth the commission or authority 
 " of the court, or person before 
 " whom such ofience was commit- 
 " ted." 
 
 By s. 21, "in every indictment 
 " for subornation of peijury, or for 
 " corrupt bargaining or contracting 
 " with any person to commit wilful 
 " and corrupt perjury, or for incit- 
 " ing, causing, or procuring any 
 " person unlawfully, wilfully, false- 
 " ly, fraudulently, deceitfully, ma- 
 " liciously or corruptly to take, 
 " make, sign, or subscribe any oath, 
 " affirmation, declaration, affidavit, 
 " deposition, bill, answer, notice, 
 " certificate or other writing, it 
 " shall be sufficient whenever such 
 " perjury, or other ofience afore- 
 " said, shall have been actually 
 " committed, to allege the ofience 
 " of the person who actually com- 
 " mitted such perjury or other of- 
 " fence in the manner hereinbefore 
 " mentioned, and then to allege that 
 " the defendant unlawfully, wilful- 
 " ly, and corruptly did cause and 
 " procure the said person the said 
 " ofience, in manner and foiTQ afore- 
 " said, to do • and commit ; and 
 " whenever such perjury, or other 
 " ofience aforesaid, shall not have 
 " been actually committed, it shall 
 " be sufficient to set forth the sub- 
 " stance of the ofience charged upon 
 " the defendant, without setting 
 " forth or averring any, of the mat- 
 " ters or things rendered unneces- 
 " sary to be set forth or averred in 
 " the case of wilful and corrupt 
 "perjury." 
 
 By s. 30, " indictment includes 
 " information." 
 
 AIle(/atio7is.]-^ln an indictment 
 for perjury committed at an ad- 
 miralty session, where the commis- 
 sion was directed to A., B. and C, 
 and others not named, of whom A., 
 B. and C were amongst others to 
 be one ; the court will take it to 
 mean, that, if either of the persons 
 named of the quorum was present, 
 
404 
 
 PERJURY. 
 
 it would be suiEcient. Rex v. Dow- 
 lin, 5 T. R. 311 ; 8. C. (at Nisi 
 Prius), Peake, 170. 
 
 Stating that at such a court (a 
 court of admiralty session), K. was 
 in due form of law tried upon a 
 certain indictment then and there 
 depending against him for murder, 
 and that at and upon the trial it 
 then and there became and was 
 made a material question, whether, 
 &c., are sufficient averments that 
 the perjury was committed on the 
 trial of K. for the murder, and that 
 the question on which the perjury 
 was assigned was material on that 
 trial. lb. 
 
 It is not necessary to set forth so 
 much of the proceedings of the 
 former trial as will show the ma- 
 teriality of the question on which 
 the perjury is assigned ; it is suffi- 
 cient to allege generally that the 
 particular question became mate- 
 rial, n. 
 
 In an indictment for perjury, the 
 necessity for shewing distinctly that 
 the false oath is in a judicial pro- 
 ceeding is not dispensed with by 23 
 Geo. 2, c. 11, s. 1. Overton v. Reg. 
 (in error), 4 Q. B. 83 ; 3 G. & D. 
 133; 7 Jur. 196; 12 L. J., M. C. 
 61. 
 
 An indictment averring that " in 
 the White-chapel County Court of 
 Middlesex, holden before J. M., 
 judge of the court, an action, then 
 pending in the court, came on to be 
 tried, that the defendant was sworn 
 as a witness before J. M., being 
 judge of the said county court, 
 and, having sufficient and compe- 
 tent authority to administer the 
 said oath "; and then perjury was 
 assigned, sufficiently shews on the 
 face of the indictment that the 
 court was properly constituted un- 
 der 9 & 10 Vict. c. 95, and that 
 the judge had jurisdiction over the 
 cause in which the perjury was al- 
 leged to have been committed. La- 
 vey V. Reg. (in error), 17 Q. B. 
 496; 2 Den. C. C. 604; 16 Jur. 
 36; 21 L. J.,M. C. 10; 5 Cox, C. 
 
 C. 259— Exch. Cham.; S. P., Reg. 
 V. Lawlor, 6 Cox, C. C. 187. 
 
 Where, to give magistrates juris- 
 diction to hear a case punishable on 
 summary conviction, it is essential 
 that they should havfe an informa- 
 tion on oath made before them, it 
 is not sufficient in an indictment 
 for perjury, alleged to have been 
 committed on the hearing of such 
 information, to allege that before 
 M. G., esq., and T. H. H. clerk, two 
 of the justices, &c., the magistrates 
 who heard the case, J. O. came and 
 exhibited a certain information up- 
 on oath, because it does not suffi- 
 ciently show that J. O. was sworn 
 before M. G. and T. H. H. Reg. 
 V. Good/dlow, Car. & M. 569— 
 Patteson. 
 
 An averment, that it became and 
 was material to ascertain the truth 
 of the matter hereinafter alleged 
 to have been sworn to, and stated 
 by J. G. upon his oath, is not a, 
 good averment of materiality. lb. 
 
 An indictment contained four 
 counts, each of which stated, that 
 for the defendant on his retainer V. 
 had done business as attorney ; that 
 y. delivered his bill, and after the 
 expiration of one month from such 
 delivery took out a summons before 
 a judge, under 6 & 7 Vict. c. 73, 
 to shew cause why the bill should 
 not be referred for taxation; that 
 it then and there became and was 
 material in shewing cause to ascer- 
 tain whether the defendant did re- 
 tain v.; and that he, before shew- 
 ing cause, made an affidavit, deny- 
 ing that he had retained V., and 
 assigned perjury on such affidavit. 
 Each of the counts concluded, 
 " and so the jurors aforesaid did 
 say, that the defendant did commit 
 perjury." The record stated the 
 writ of venire to try whether the 
 defendant "be guilty of the perjury 
 and misdemeanor aforesaid," and 
 the verdict, that " he is guilty of 
 the peijury and misdemeanor afore- 
 said," and a general judgment 
 thereon: — Held, first, that as the 
 
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INDICTMENT AND INFORMATION. 
 
 405 
 
 counts all referred to the statute, 
 the word " month " was to be con- 
 strued according to the mterpreta- 
 tion clause, and meant calendar 
 month. Hyalls v. Reg. (in error), 
 11 Q. B. 781 ; 13 Jur. 259 ; 18 L. 
 J., M. C. 69 ; 3 Cox, C. C. 254— 
 Exch. Cham., affirming the judg- 
 ment of the Q. B.: S. C, 12 Jur. 
 458 ; 17 L. J., M. C. 93. 
 
 Held, secondly, that the jmisdic- 
 tion was sufficiently shewn on the 
 indictment, without negativing a 
 prior application to have the costs 
 taxed by the party chargeable, in 
 which case only the act authorizes 
 an application to the judge by the 
 attorney. Tb. 
 
 Held, thirdly, that the fact of the 
 retainer by the defendant was a 
 material ingredient in the inquiry, 
 and was sufficiently averred. Tb. 
 
 Held, fourthly, that the aver- 
 ment at the conclusion of each 
 count was immaterial, and might 
 be struck out as surplusage. Jb. 
 
 Held, fifthly, that the word 
 " misdemeanor " was nomen col- 
 lectivum ; and that, therefore, the 
 venire and verdict applied to all 
 the counts; and the judgment, be- 
 ing for imprisonment only, was di- 
 visible, lb. 
 
 An indictment which charges that 
 the prisoner " feloniously, corrupt- 
 ly, knowingly, wilfully, and mali- 
 ciously swore," omitting the word 
 " falsely," but concluding, " and so 
 the defendant in manner and form 
 aforesaid did commit wilful and 
 corrupt perjury," is bad. Heg. v. 
 Oxley, 3 C. & K. 317— Cresswell. 
 
 An indictment alleged that a pe- 
 tition was presented to the House 
 of Commons against the return of 
 B., on the ground of bribery ; that, 
 shortly before his election, to wit, 
 on the 6th July, B. and C. went to 
 the house of the defendant to solicit 
 his vote ; that, at the time of the 
 petition, it was a material question 
 whether at the time when B. and 
 C. went to the defendant's house, a 
 certain act of bribery took place ; 
 
 that the defendant was a witness 
 sworn to speak the truth of and 
 concerning the premises, and he 
 deposed touching the election and 
 the matter of the petition, that 
 shortly before B.'s election, B. and 
 C. came on a canvassing visit to 
 the defendant's house, and that the 
 act of bribery then took place (in- 
 nuendo), thereby meaning that at 
 the time when B. and C. went to 
 the defendant's house as aforesaid, 
 the act of bribery was committed : 
 — Held, on motion in arrest of 
 judgment: first, that the allegation 
 that the defendant deposed " touch- 
 ing the election," &c., sufficiently 
 pointed to the matter whereupon 
 the defendant was sworn as a wit- 
 ness ; secondly, that the innuendo 
 did not introduce new matter, as 
 from the introductory aveiment it 
 appeared there was a canvassing 
 visit on the 6th July, and the depo- 
 sition of the defendant was shewn 
 to refer to that particular time and 
 no other. Hegi. v. Verrier or Vir- 
 rier, 4 P. & D. 161 ; 12 A. & E. 
 317. 
 
 If an indictment undertakes to 
 set out continuously the substance 
 and effect of what the defendant 
 swore when examined as a witness, 
 it is necessary to prove that in sub- 
 stance and effect he swore the whole 
 of that which is thus set out, though 
 the indictment contains several dis- 
 tinct assignments of perjury. Hex 
 Y. Leefe, 2 Camp. 134 — EUenbor- 
 ough. 
 
 In an indictment there must be 
 an allegation of time and place, 
 which are sometimes material, and 
 necessary to be laid with precision, 
 and sometimes not. Hex v. Aylett, 
 1 T. K 63. 
 
 It is sufficiently certain if it is 
 stated that the defendant was in 
 due manner sworn. Rex v. M Gar- 
 ther, Peake, 155 — Kenyon. 
 
 An indictment for perjury com- 
 mitted before a magistrate, stating 
 that the defendant went before the 
 magistrate and was sworn, and that 
 
 Digitized by Microsoft® 
 
406 
 
 PERJURY. 
 
 he did falsely, &c. " say, depose, 
 swear, charge and give the justice 
 to be informed," that he saw the 
 prosecutor commit bestiality, suifi- 
 ciently shews that the oath was 
 taken in a judicial proceeding ; and 
 it being also stated in the indictment 
 that it was material " to know the 
 state of the said A. B.'s dress at the 
 time the offence was so charged to 
 be committed as aforesaid," is a 
 sufficient averment of materiality to 
 allow the prosecutor to shew that 
 the flap of his trousers was not un- 
 buttoned (as sworn by the defend- 
 ant), and that his trousers had no 
 flap. Req. v. Gardiner, 8 C. & P. 
 737 ; 2 M. C. C. 95. 
 
 An indictment charging that the 
 defendant falsely and maliciously 
 gave false testimony, without aver- 
 ring that the ofience was wilfully or 
 that it was corruptly committed, is 
 bad in arrest of judgment. Rex v. 
 Richards, 7 D. & R. 665; S. G., 
 nom. Rex v. Stevens, 5 B. & C. 246. 
 
 Another count alleging that at 
 the trial of the prosecutor he was 
 found guilty by means of the false 
 and malicious testimony of the de- 
 fendant in the first count men- 
 tioned ; that, on a rule nisi for a 
 new trial, the defendant knowingly, 
 falsely, wilfully and corruptly made 
 an aifidavit that the evidence given 
 by him at the trial was true, "where- 
 as it was false ui the particulars in 
 the first count assigned and set 
 forth," is also bad, for it should 
 have averred distinctly that the de- 
 fendant was sworn as a witness, and 
 deposed to certain facts at the trial, 
 instead of leaving it to be taken by 
 intendment. lb. 
 
 An information for perjury, 
 charging that the defendant, before 
 a committee of the House of Com- 
 mons, being duly sworn, " knowing- 
 ingly and deliberately, and of his 
 own act and consent, did depose 
 and swear " to certain facts set forth 
 in the information ; and that he 
 afterwards, at the bar of the House 
 of Lords, being duly sworn, " know- 
 
 ingly, &c., did swear" to certain 
 facts contradicting what he had pre- 
 viously sworn before the committee 
 of the House of Commons ; with a 
 conclusion, " and so the defendant, 
 in manner and form aforesaid, did 
 commit wilful and corrupt perjury"; 
 cannot be sustained, and is bad in 
 arrest of judgment. Rex v. Harris, 
 1 D. & R. 578 ; 5 B. & A. 926. 
 
 Where, upon an indictment for 
 perjury, on a trial for felony, it 
 neither appeared that the matter 
 sworn was material, nor was it al- 
 leged to be so : — Held, that if the 
 origmal indictment had been set 
 out, and the materiality could plain- 
 ly have been collected, it would 
 have been suflicient without any 
 special averment, but that one or 
 the other was absolutely necessary. 
 Rex V. Dunn, 1 D. & R. 10. 
 
 The word " wilful " is not neces- 
 sary in an indictment for perjury at 
 common law. Rex v. Cox, 1 Leach, 
 C. C. 71. 
 
 But it is otheiTvise in an indict- 
 ment for perjury on 5 Eliz. c. 9. lb. 
 
 An indictment stating that the 
 defendant swore that a particular 
 fact occurred on the day on which a 
 certain memorandum bore date, and 
 at the time of making a certain bill 
 of exchange, without averring that 
 they were the same days ; and the 
 assignment of peijury alleged that 
 the fact did not occur on the day on 
 which the memorandum bore date, 
 is 'uncertain, and therefore bad. 
 Reg. V. Burraston, 4 Jur. 697 — Q. 
 
 An indictment, in which it is in- 
 tended to assign perjury upon sev- 
 eral statements in the defendant's 
 evidence relating to several different 
 matters, should allege that there 
 were several material questions, and 
 certain distinct and separate assign- 
 ments of falsehood upon each. lb. 
 
 When an indictment alleged that 
 R. W. falsely swore that " he was 
 in the bar of the House of J. B. on 
 the 15th of February last, from 
 between the hours of six o'clock and 
 
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INDICTMENT AND INFORMATION. 
 
 407 
 
 seven o'clock in the evening of the 
 said last-mentioned day, until nine 
 o'clock in the evening of the said 
 last-mentioned day, and that he, R. 
 W., did not then and there play at 
 any game of cards at all ":— Held, 
 that perjury was not sufficiently as- 
 signed by an aveiment that " the 
 said R. W. did then and there (to 
 wit) in the said bar of the said 
 house and premises of the said J. B. 
 on the said 15th day of February 
 last, and between the hours of six 
 o'clock in the evening of the said 
 last - mentioned day, and eight 
 o'clock in the evening of the said 
 last-mentioned day, play at a cer- 
 tain game of cards." Meg.y. White- 
 house, 3 Cox, C. C. 86— RoLfe. 
 
 An indictment alleged that a 
 cause was pending in a county court, 
 and that at the hearing it became a 
 material question whether the plaint- 
 iff in the cause had, in the presence 
 of the prisoner, signed at the foot of 
 a bill of account, purporting to be a 
 bill of account between a firm called 
 B. & Co. and W., a receipt for pay- 
 ment of the amount of the bill ; and 
 that the prisoner falsely swore that 
 the plaintiff did, on a certain day, 
 in the presence of the prisoner, sign 
 the receipt (meaning a receipt at the 
 foot of the first-mentioned bill of 
 account) for the payment of the 
 amount of the bill. The plaintiff in 
 the county court had on other occa- 
 sions signed similar receipts in the 
 presence of the prisoner : — Held, 
 that the bill of account was stated 
 and set forth in the indictment with 
 sufficient certainty. Reg. v. Web- 
 ster, Bell, C. C. 154 ; 5 Jur., N. S. 
 604 ; 28 L. J., M. C. 200 ; 7 W. R. 
 445 ; 8 Cox, C. C. 187. 
 
 It is not a sufficiently precise al- 
 legation upon which to found an in- 
 dictment for perjury that the pris- 
 oner swore that a certain event did 
 not happen within two fixed dates, 
 his attention not having been called 
 to the particular day upon which 
 the transaction was alleged to have 
 
 taken place. Reg. v. Stolady, 1 P. 
 & F. 518— Pollock. 
 
 An indictment charged that a 
 petition for protection from process 
 was under 5 & 6 Vict. c. 116, 7 & 
 8 Vict. c. 96, and 10 & 11 Vict. c. 
 102 (Insolvent Debtors' Acts), filed 
 and presented at the county court 
 of S., at W., by the defendant ; that 
 he afterwards obtained an order of 
 protection; but afterwards, while 
 the proceedings were pending in the 
 county court, to wit, at the time of 
 the filing the petition and schedule, 
 he came before K., a commissioner 
 to administer oaths in chancery, 
 duly appointed and empowered to 
 act in the matter of the insolvent, 
 and take the defendant's oath then 
 and there at the county court, and 
 within the jurisdiction aforesaid, for 
 the purpose of making an affidavit, 
 and verifying his petition on oath, 
 and was duly sworn before K., and 
 swore and took his oath that the 
 affidavit then made was true, K. 
 having competent power and au- 
 thority to administer the oath. The 
 indictment then alleged that certain 
 matter was material in the matter 
 of the insolvency, and that the affi- 
 davit was false in respect thereof, 
 the defendant was convicted, and 
 judgment passed :-^Held, that the 
 jurisdiction of the court sufficiently 
 appeared, though there was no ex- 
 press allegation that the defendant 
 had resided for six calendar months 
 before the filing of the petition 
 within the district of the county 
 court, as required by 11 & 12 Vict, 
 c. 102, s. 6. ifalker v. Reg. (in 
 error), 8 El. & Bl. 439 ; 3 Jur., N. 
 S. 1259 ; 27 L. J., M. C. 43. 
 
 A person was indicted for wilful 
 and corrupt perjury in making a 
 false affidavit before a commissioner 
 for taking oaths in the court of 
 Queen's Bench, for the purpose of 
 getting a bill of sale filed under the 
 Bills of Sale Act, 1854:— Held, a 
 misdemeanor, though not wilful and 
 
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408 
 
 PERJURY. 
 
 corrupt perjury, and that the con- 
 clusion of an indictment for perjury, 
 " that so the defendant did commit 
 wilful and corrupt perjury " might 
 be rejected as surplusage,^ and a 
 conviction for the misdemeanor was 
 right upon such an indictment. Beg. 
 V. Hodgkiss, 3 9 L. J., M. C. 14 ; 1 
 L. R., C. C. 21 2 ; 18 W. R. 150 ; 21 
 L. T., N. S. 564. 
 
 Materiality of Assignments.] — It 
 is not necessary expressly to aver 
 materiality in any indictment for 
 peijury. It will be sufficient if ma- 
 teriality is clearly disclosed by the 
 facts as stated on the face of the in- 
 dictment. If materiality is not suf- 
 ficiently averred, or apparent, the 
 defect is not cured by 14 & 15 
 Vict. c. 100, s. 20. Nor is it such a 
 defect as the judge will amend un- 
 der sec. 25. jReg. v. Harvey, 8 Cox, 
 C. C. 99— Byles. 
 
 A variance between the form of 
 oath proved and that stated in the 
 indictment is immaterial. The cir- 
 cumstance that the statement may 
 probably influence the person to de- 
 cide will not make it material, if 
 not legally material, to the matter 
 under consideration. The question 
 of materiality is for ' the judge. 
 Reg. T. Sonthwood, 1 F. & F. 356 
 — Watson. 
 
 An indictment for perjury al- 
 leged as committed on the trial of 
 an issue in a cause, with averments 
 of materiality to such issue, is sus- 
 tained, although it appears that 
 there were several issues in the 
 cause. Reg. v. Smith, 1 P. & F. 
 98— Erie. ' 
 
 On an assignment of perjury by 
 a defendant in a bastardy case, that 
 he had never kissed the prosecutrix, 
 the question of materiality is for the 
 jury. Reg. v. Goddard, 2 F. & F. 
 361— Wightman. 
 
 An indictment stated that it be- 
 came a material question, whether, 
 on the occasion of a certain alleged 
 arrest, L. touched K.; and the de- 
 fendant's evidence as set out was: — 
 
 L. put his ajms round him and em- 
 braced him ; innuendo that L. had, 
 on the occasion to which the said 
 evidence applied, touched the per- 
 son of K.: — Held, that the mater- 
 iality of the evidence did not suffi- 
 ciently appear. Rex v. Nicholl, 1 
 B. & Ad. 21. 
 
 It is not a sufficiently precise al- 
 legation upon which to found an in- 
 dictment for perjury that the pris- 
 oner swore that a certain event did 
 not happen within two fixed dates, 
 his attention not having been called 
 to the particular day upon which 
 the transaction was alleged to have 
 taken place. Reg. v. Stolady, 1 F. 
 & F. 518— Pollock. 
 
 An indictment alleging that one 
 E. S. had filed a bill in chancery 
 against the defendant J. C. and 
 others, wherein he prayed that the 
 defendant J. C might answer the 
 premises ; that a purchase by J. C. 
 of certain property belonging to the 
 other defendants might be declared 
 fraudulent and void; and that it 
 then and there became a material 
 question whether the said J. C. did 
 advise the said other defendants 
 that the said property should be 
 sold ; and that the said J. C. falsely 
 and corruptly swore, and in and by 
 his answer denied, that he had so 
 advised, is bad in arrest of judg- 
 ment, for want of a sufficient aver- 
 ment of materiality. Reg. V. GuMs, 
 4 Cox, C. C. 435— Q. B. 
 
 A., in an affidavit, stated that he 
 had paid all the debts proved under 
 his bankruptcy, except two, as to 
 which he explained. On an indict- 
 ment for perjury on this affidavit, 
 one of the assignments of peij^ry 
 was, that A. had not paid all the 
 debts proved under his bankruptcy, 
 except two ; and another, that cer- 
 tain creditors, naming them., besides 
 the excepted two, were not paid in 
 full : — Held, that if the first assign- 
 ment was too general, the defend- 
 ant should have demurred to it ; 
 and that, although by the generality 
 of its form the prosecutor was not 
 
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INDICTMENT AND INFORMATION. 
 
 409 
 
 precluded from proYing tte non- 
 payment of other creditors besides 
 those named, yet, as names were 
 stated in the other assignment, it 
 was reasonable to presume that the 
 defendant would suppose that they 
 were the persons, the non-payment 
 of whose debts was to be relied on ; 
 and that in fairness the prosecutor 
 ought not to go into evidence of the 
 non-payment of any other creditors 
 than those named. Reg. v. Parker, 
 Car. & M. 639— "Hndal. 
 
 An indictment stated that L. 
 stood charged by P. W., before T. 
 S., clerk, a justice of the peace, 
 with having committed a trespass, 
 by entering and being in the day- 
 time on land in pursuit of game, on 
 the 12th August, 1843 ; and that 
 T. S. proceeded to the hearing of 
 the charge ; and that, upon the 
 hearing of the charge, the defend- 
 ant falsely swore that he did not see 
 L. during the whole of the 12th 
 August, meaning that he did not 
 see L. at all on the 12th day of Aug- 
 ust, in the year aforesaid ; and that, 
 at the time he swore as aforesaid, it 
 was material or necessary for T. S., 
 so being such justice, to inquire of, 
 and be informed by the defendant, 
 whether he did see L. at all during 
 the 12th day of August, in the year 
 aforesaid : — Held, that this aver- 
 ment of materiality was insufficient, 
 because, consistently with this aver- 
 ment, it might have been material 
 for T. S. in some other matter, and 
 not in the matter stated to have 
 been in issue before him, to have 
 put this question and received this 
 answer. Meg. v. Bartholomew, 1 C. 
 &K.366. 
 
 Li an indictment it was alleged 
 to be a material question whether 
 or not the prisoner ever got one 
 Milo Williams to write a letter fori 
 her ; and in the averments, negativ- 
 ing the truth of what was sworn, 
 the indictment alleged that, in truth 
 and fact, the said Mary Ann Bennett 
 did get the said Milo Williams, and 
 that when, on her cross-examination 
 
 at the trial, when the alleged per- 
 jury was committed, she was asked 
 whether she had ever got a Mr. 
 Milo Wilhams (who was then point- 
 ed out to her in court) to write a 
 letter for her : — Held, that the aver- 
 ments were sufficient, without any 
 allegation connecting the "one Milo 
 Williams " named in the allegations 
 of materiality, and the averments 
 negativing the truth of what was 
 sworn, with the "Mr. Milo Wil- 
 liams " named in the subsequent 
 part of the indictment. Reg. v. 
 Bennett, 3 C. & K. 124 ; 2 Den. C. 
 C. 241 ; T. & M. 567 ; 15 Jur. 497 ; 
 20 L. J., M. C. 217 ; 5 Cox, C. 0. 
 207. 
 
 In an indictment for perjury, an 
 exj)ress averment that a question 
 was material lets in evidence to 
 prove that it was so. lb. 
 
 In an indictment, the assignment 
 was that the defendant upon his oath 
 did swear " that he then thought 
 that the words written in red ink 
 were not his writing, and that he 
 had not in the presence of W. D. 
 written the words so written in red 
 ink, whereas in truth and in fact 
 the words so written in red ink 
 were the defendant's writing, and 
 whereas also, in truth and in fact, 
 he then and there, v/hen he so de- 
 posed as aforesaid, thought that the 
 words so written in red ink as afore- 
 said were his writing" : — Held, that 
 perjury might be,assigned upon the 
 deposition of the defendant. Reg. 
 V. ScUesinger, 10 Q. B. 670; 12 
 Jur. 283 ; 17 L. J., M. C. 29 ; 2 
 Cox, C. C. 200. 
 
 Held, also, that the materiality of 
 the allegation that the defendant 
 wrote the words in the presence of 
 W. D. being averred, the court 
 would not inquire into it. Ih. 
 
 On an indictment for perjury al- 
 leged to have been committed in 
 answer to a certain interrogatory 
 exhibited in a suit in the Ecclesias- 
 tical Court, it appeared that a suit 
 for divorce, on the ground of adul- 
 tery, had been instituted against the 
 
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410 
 
 PERJURY. 
 
 prosecutor by his wife ; that the de- 
 fendant was a witness examined on 
 behalf of the wife to prove her case ; 
 that cross interrogatories were ex- 
 hibited to him by the prosecutor by 
 way of cross-examination, one of 
 which, put for the purpose of im- 
 peaching his character, was the fol- 
 lowing : — " Have you not passed by 
 the name of Abbott, and also of 
 Johnson ? " His answer was, " I 
 have never passed by the assumed 
 name of Abbott or Johnson." It 
 was clearly proved that he had : — 
 Held, that the question and answer 
 were not sufficiently material to the 
 issue to warrant the ease going to 
 the jury. Beg. v. Worhy, 3 Cox, 
 C. C. 535— Denman. 
 
 At the trial of an action of trover 
 by P. against the prisoner for some 
 steel, the defence was that P., while 
 the steel was lying at a railway sta- 
 tion, sent for it, and signed a deliv- 
 ery note on receiving it, and then 
 sold it to the prisoner. The prison- 
 er, a witness, swore that the name, 
 P., on the delivery note, was P.'s 
 writing, and that he saw him write 
 it. The prisoner was indicted for per- 
 jury upon this evidence and found 
 guilty : — ^Held, that the signature to 
 the delivery note was material evi- 
 dence in the action, upon which perj u- 
 ry could be assigned. Meg. v. Nayhr, 
 17 L. T., K S. 582 ; 16 W. R. 374 ; 
 11 Cox, C. C. 13— C. C. R. 
 
 Upon the trial of C. for perjury, 
 committed in an affidavit, proof was 
 given that the signature to the affi- 
 davit was in his handwriting, and 
 there was no other proof that he 
 was the person who made the affi- 
 davit. The prisoner was then call- 
 ed, and swore that the affidavit was 
 used before the taxing master, that 
 C. was then present, and that it was 
 publicly mentioned, so that every-, 
 body present must have heard it, 
 that the affidavit was C.'s : — Held, 
 that the matters sworn were mate- 
 rial upon the trial of C. Reg. v. 
 Alsop, 17 W. R. 621 ; 11 Cox, C. 
 
 C. 264 ; 20 L. T., N. S. 403— C. C. 
 R. 
 
 S. was indicted for robbery on 
 April 13, at 8.45 p.m., and the pris- 
 oner swore that S. was in a house 
 at a distant place at that time, and 
 that S. had lodged at that house 
 nearly two years, and had never 
 been away for more than two or 
 three nights at a time during that 
 period. The prisoner was indicted 
 for perjury on that evidence, and 
 convicted on the assignments of per- 
 jury, as to S. having lodged at the 
 house for two years, and never hav- 
 ing been away more than two or 
 three nights at a time : — Held, that 
 the evidence on these points was 
 material, as tending to induce the 
 jury to give greater credit to the 
 substantial fact of his being there 
 on the 13th of April at the time in 
 question. Reg. v. Tyson, 17 L. T., 
 N. S. 292 ; 1 L. R., C. C; 107 ; 37 
 L. J., M. C. 7; 16 W. R. 317; 11 
 Cox, C. C. 1. 
 
 An indictment for perjury was 
 held to be bad for immateriality. 
 The* charge being for assault, the 
 assignment of perjury not being rel- 
 evant to the charge and affi^rding 
 no grounds of legal justification, 
 was therefore not legally material. 
 Reg. V. Tate, 12 Cox, C. C. 7. 
 
 7. Amendment of Variances. 
 
 If materiality is not sufficiently 
 averred, or apparent, the defect is 
 not cured by 14 & 15 Vict. c. 100, 
 s. 20. Nor is it such a defect as 
 the judge will amend under s. 25. 
 Reg. V. Harvey, 8 Cox, C. C. 99— 
 Byles. 
 
 The judge at the trial of an in- 
 dictment for peijury has power to 
 amend an inaccurate description of 
 the time of passing a statute refer- 
 ^red to in the indictment. Reg. v. 
 Westley, 5 Jur., N. S. 1362 ; Bell, 
 C. C. 193 ; 29 L. J., M. C. 35. 
 
 Where the title of an act of parlia- 
 ment is not accurately stated, but 
 still so stated as to enable the judg- 
 
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EVrDENCE. 
 
 411 
 
 es to know that there can be but 
 one act referred to, such misstate- 
 ment is immaterial. Ih. 
 
 On a charge of perjury alleged to 
 have been committed before com- 
 missioners to examine witnesses in 
 a Chancery suit, the indictment 
 stated that the four commissioners 
 were commanded to examine the 
 witnesses. Their commission was 
 put in, and by it the commission- 
 ers, or any three or two of them, 
 were commanded to examine the 
 witnesses : — Held, a fatal variance, 
 and the judge would not allow it 
 to be amended under 9 Geo. 4, c. 
 15. Reg. V. Hewins, 9 C. & P. 
 786— Coleridge. 
 
 An indictment for perjury, alleg- 
 ed to have been committed on the 
 trial of S. S., averred that the trial 
 took place at the Assizes and Gen- 
 eral Sessions of the Delivery of the 
 Gaol of our Lady the Queen for the 
 coimty of S., before John Lord 
 Campbell, C. J., of our Lady the 
 Queen, assigned to hold pleas be- 
 fore the Queen herself, and Sir E. 
 V. Williams, Knt., one of the jus- 
 tices of our Lady the Queen, of her 
 Court of Common Pleas, assigned 
 to deliver the gaol of the prisoners 
 therein being. It being objected 
 that this was a defective description, 
 as alleging a court with an impos- 
 sible combination of civil and crim- 
 inal jurisdiction : — Held, that the 
 word " assizes" might be struck out 
 as surplusage. Heff. v. Child, 5 
 Cox, C. C. 197. 
 
 It being also objected that the 
 words " assigned to deliver the gaol 
 of the prisoners therein being," re- 
 ferred only to the last-named judge : 
 — Held , that the indictment might be 
 amended by the record of the con- 
 viction of S. S., by insertmg after 
 the words " Common Pleas, and 
 others their fellows, justices," as- 
 signed to deliver the gaol. lb. 
 
 The record of the conviction of 
 S. S. described the court as a gen- 
 eral session of oyer and terminer 
 
 and gaol delivery. It also describ- 
 ed the charge against S. S. as for 
 cutting and wounding ; the indict- 
 ment describing it as for wounding : 
 — ^Held, that these variances might 
 also be amended. lb. 
 
 In an indictment for perjury, the 
 perjury was alleged to have been 
 committed on the trial of an indict- 
 ment against B., for setting fire to 
 a certain barn of P. In support of 
 the averment, a certificate of the 
 trial and conviction of B. was pro- 
 duced, but the offence there men- 
 tioned was setting fire to " one stack 
 of barley." The oifence was, in 
 fact, the same, the barn and the 
 stack having be^n destroyed by one 
 fire : — Held, that the indictment 
 might be amended under 14 & 15 
 Vict. c. 100, s. 1. Beg. v. Neville, 
 6 Cox, C. C. 69— Wilhams. 
 
 8. Evidence. 
 
 In perjury committed in an an- 
 swer in Chancery, it is sufficient 
 proof of the fact of swearing and the 
 identity of the defendant, to prove 
 the handwriting subscribed to the 
 answer, and that the jurat was sub- 
 scribed by the master as being 
 sworn before him. Rex v. Morris, 
 1 Leach, C: C. 50 ; ,S^. P., Rex v. 
 Benson, 2 Camp. 508 ; Rex v. Mor- 
 ris, 2 Burr. 1189. 
 
 On an indictment for perjury, in 
 an answer to a bill in Chancery, the 
 proving the handwriting of the sig- 
 nature of the person who adminis- 
 tered the oath, is sufficient proof 
 that it was sworn ; and if the place 
 at which such answer purported to 
 have been sworn is in the jurat, it 
 is sufficient evidence that the oath 
 was administered at that place. 
 Rex V. Spencer, 1 C. & P. 260 ; R. 
 & M. 97— Abbott. 
 
 If the perjury is committed at the 
 trial of a cause, the prosecutor must 
 prove the whole of the defendant's 
 testimony. Rex v. Jones, Peake, 
 37 — Kenyon. 
 
 Unless the poiat upon which the 
 
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412 
 
 PERJURY. 
 
 perjury is assigned arose upon the 
 defendant's cross-examination. Hex 
 V. Dowlin, Peake, 170. 
 
 In an indictment for perjury com- 
 mitted on the trial of a cause, it is 
 sufficient for the prosecutor to prove 
 all the evidence given by the de- 
 fendant, referable to the fact on 
 which perjury is assigned. Rex v. 
 Eowhy, R. & M. 299— Littledale. 
 
 An affidavit purporting to be 
 sworn before a public commissioner 
 is admissible on the trial of an in- 
 dictment for perjury without proof 
 of the commission ; proof of the 
 commissioner's acting as such is 
 sufficient. Rex v. Hoioard, 1 M. & 
 Rob. 187 ; S.F., Rex v. Verelst, 3 
 Camp. 432. 
 
 To shew that perjury was wilful 
 and corrupt, evidence may be given 
 of expressions of malice used by the 
 party towards the person against 
 whom he gave the false evidence. 
 Rex V. Munton, 3 C. & P. 498— 
 Tenterden. 
 
 If A. is indicted for perjury, in 
 swearing that he did not enter into 
 a verbal agreement with B. and C. 
 for them to become joint dealers and 
 co-partners in the trade or business 
 of druggists ; and it appears that, 
 in fact, B. was a druggist, keeping 
 a shop with which A. had nothing 
 to do ; but that A. and C, being 
 sworn brokers, could not trade, and 
 therefore made speculations in drugs 
 in B.'s name with his consent, he 
 agreeing to divide profits and loss- 
 es with A. & C. ; this will not sup- 
 port the indictment, as this is not 
 the sort of partnership denied by A. 
 upon oath. Rex v. Tucker, 2 C. & 
 P. 500— Abbott. 
 
 Where perjury is assigned upon a 
 written instrument, subsequently 
 lost, secondary evidence is admissi- 
 ble. Reff. V. Milnes, 2 F. & F. 10 
 —Hill. 
 
 On the trial of an indictment for 
 peijury, alleged to have been com- 
 mitted on the trial of an indictment 
 for an assault, all the evidence that 
 was admissible on the trial of the in- 
 
 dictment for the assault is admissible 
 on the trial of the indictment for per- 
 jury. Regi. v. Jlarrison, 9 Cox, C. 
 C. 503— Bramwell. 
 
 Proof that the defendant was 
 " sworn and examined as a witness," 
 supports an averment that he was 
 sworn on the Holy Gospel, that be- 
 ing the ordinary mode of swearing. 
 Rex V. Rowley, R. & M. 299— Lit- 
 tledale. But see Rex v. if' Garther, 
 Peake, 155. 
 
 If an indictment contains several 
 assignments of peijury, on one of 
 which no evidence is given on the 
 part of the prosecution, the defend- 
 ant cannot go into proof to shew 
 that the evidence charged by that 
 assignment of perjury to be false, 
 was in reality true. Rex v. Hemp, 
 5 C. & P. 468— Denman. 
 
 On the trial of an indictment for 
 peijury the witnesses to character 
 were asked, " What is the charac- 
 ter of the defendant for veracity and 
 honour?" — and " Do you consider 
 him a man likely to commit perju- 
 ry?" lb. 
 
 A person in his deposition before 
 a magistrate deposel to several ma- 
 terial facts in a case of larceny. 
 When called as a witness at the 
 quarter sessions on the trial of the 
 larceny, he contradicted every state- 
 ment he had made before the magis- 
 trate. In an indictment for perjury, 
 his evidence on the trial at the quarter 
 sessions was charged to be false : — 
 Held, that the deposition before the 
 magistrate was not, by itself, suffi- 
 cient proof that the evidence on the 
 trial at the quarter sessions was 
 false, but that other confirmatory 
 evidence must be given, to satisfy 
 the jury that the statements made 
 by the party at the quarter sessions 
 were, in point of fact, false, or that 
 the statements in the deposition 
 were, in point of fact, true. Reg. v. 
 Wheatland, 8 C. & P. 238— Guruey. 
 
 In an indictment, the supposed 
 perjury arose upon evidence given 
 in reply to the testimony of one of 
 the defendants on the former trial. 
 
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EVIDENCE. 
 
 413 
 
 who was acquitted and examined 
 as a witness. The indictment did 
 not state his acquittal, nor did the 
 minute of the verdict shew it : — 
 Held, that this was immaterial, pa- 
 rol evidence being given that he 
 was in fact examined. Rex v. 
 Browne, 3 C. & P. 572 ; M. & M. 
 816. 
 
 Declarations in articulo mortis 
 are not admissible in evidence on 
 the trial of an indictment for perju- 
 ry. Rex V. Mead, 4 D. & R. 120 ; 
 2 B. & C. 605. 
 
 In a case of peijury, on a charge 
 of bestiality, the defendant swore 
 that he saw the prosecutor commit- 
 ting the offence, and saw the ilap 
 of his trowsers unbuttoned. To 
 disprove this, the prosecutor depos- 
 ed that he did not commit the of- 
 fence, and that his trousers had no 
 flap ; and, to confirm him, his broth- 
 er proved, that, at the time in ques- 
 tion, the prosecutor was not out of 
 his presence for more than three 
 minutes, and his trousers had no 
 flap : — Held, to be suflBcient corrob- 
 orative evidence to go to the jury. 
 Reg. V. Gardiner, 8 C. & P. 737— 
 Patteson. 
 
 An assignment of perjury, that 
 the prosecutor did not, at the time 
 and place sworn to, or at any other 
 time or place, commit bestiality 
 with a donkey (as sworn to) or with 
 any other animal whatsoever, is suf- 
 ficiently proved by the evidence 
 of two witnesses falsifying the depo- 
 sition which had been sworn to by 
 the defendant. Ih. 
 
 On the trial of an indictment for 
 peijury on the crown side of the as- 
 sizes, where it appeared that the at- 
 tomies on both sides had agreed 
 that the formal proofs should be 
 dispensed with, and that part of the 
 prosecutor's case should be admit- 
 ted, the judge would not allow this 
 admission. Beg. v. Thomhitt, 8 C. 
 & P. 575— Abinger. 
 
 A judge will not allow a crimi- 
 nal case upon the crown side of the 
 assizes to be tried on admissions, un- 
 
 less they are made at the trial by 
 the defendant or his counsel. lb. 
 
 On the trial of an indictment for 
 perjury, committed on the hearing 
 of an affiliation summons, under 7 
 & 8 Vict. c.lOl, s. 2, it was proved 
 that an information was duly made, 
 which was put in evidence and read, 
 and that the putative father appear- 
 at the petty sessions, and that upon 
 the hearing of the information the 
 perjury assigned was committed. 
 The summons was not produced, 
 nor service of it proved, but in all 
 other respects the proceedings on 
 the hearing of the information were 
 proved and appeared to have been 
 regular : — Held, that it was not nec- 
 essary that the summons should 
 have been produced to sustain a 
 conviction for perjury on the above 
 evidence. Reg. v. Smith, Yl L. T., 
 N. S. 263; 1 L. R., C. C. 110; 37 
 L. J., M. C. 6; 16 W. R. 140; 11 
 Cox, C. C. 10. 
 
 On the trial of an indictment for 
 perjury, it should be proved distinct- 
 ly what the charge was on the hear- 
 ing of which the false evidence was 
 given. Reg. v. Oarr, 10 Cox, C. C. 
 564 ; 16 W. R. 137 ; 17 L. T., N. 
 S. 217— C. C. R. 
 
 B. was indicted for perjury com- 
 mitted in an affidavit, alleged to 
 have been made by him in order to 
 obtain a marriage licence. The ev- 
 idence shewed that some person 
 went to the vicar-general's office, 
 and gave certain instructions, in ac- 
 cordance with which an affidavit 
 was filled up by one of the clerks, 
 which, after having been read over 
 to the applicant, was signed by him. 
 B.'s father proved that the signature 
 to the affidavit was in his son's 
 handwriting. The custom of the 
 vicar-general's office was for the 
 clerk who filled up the affidavit to 
 go with the applicant, and get him 
 to swear to it before a surrogate. 
 Neither the clerk in the vicar-gen- 
 eral's office, nor the surrogate, could 
 identify B. as having sworn to the 
 affidavit, and, although the clergy- 
 
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414 
 
 PERJURY. 
 
 man who married B. recognized 
 him as being the person who was 
 married under the licence granted 
 on the strength of the affidavit 
 signed by him, yet he did not re- 
 ceive it from him on the day of the 
 marriage, but he received it on the 
 previous day from the verger of his 
 church : — Held, that further proof 
 of the identity of the person who 
 swore to the affidavit with the per- 
 son who signed it was necessary be- 
 fore B. could be convicted of perju- 
 ry assigned on a false statement 
 contained in it. Beg. v. Barnes, 
 10 Cox, C. C. 539— Russell Gumey. 
 A solicitor was indicted for perju- 
 ry in having sworn that there was 
 no draft of a certain statutory dec- 
 laration made by a client. No no- 
 tice to produce the draft had been 
 given to the solicitor, and upon his 
 trial it was proved to have been 
 last seen in his possession. Second- 
 ary evidence having been given of 
 its contents : — Held, that, in the 
 absence of such notice, secondary 
 evidence was inadmissible. Reg. v. 
 Elworthy, 1 L. R., C. C. 103 ; 37 L. 
 J., M. C. 3 ; 17 L. T., N. S. 293 ; 
 16 W. R. 207 ; 10 Cox, C. C. 579. 
 
 9. Proof hy Judge's Notes of Evidence. 
 
 In support of an indictment for 
 perjury, committed on the trial of 
 a plaint in a county court, it is not 
 necessary to produce the judge's 
 notes, if proof of the perjury can "be 
 established by witnesses who were 
 present at the trial. Meg. v. Mor- 
 gan, 6 Cox, C. C. 107— Martin. 
 
 The notes of evidence taken by a 
 judge on a trial are not admissible 
 in evidence to prove what was said 
 on that trial. When, therefore, on 
 a trial for perjury, alleged to have 
 been committed by the defendant 
 as a witness on a trial for felony be- 
 fore a Queen's counsel assisting the 
 judges, and his notes of the evi- 
 dence given on that occasion were 
 tendered (on proof of his handwrit- 
 ing) : — ^Held, that such notes were 
 
 not admissible. Reg. v. Child, 5 
 Cox, C. C. 197— Talfourd. 
 
 10. Proof of Particular Averments. 
 
 An allegation in an indictment 
 for perjury, that the defendant 
 made his warrant of attorney directed 
 to R. W. and F. B., " then and still 
 being attornies" of K. B., is proved 
 by putting in the warrant of attor- 
 ney. Rex V. Cooke, 7 C. & P. 559 
 — Patteson. 
 
 If, in an indictment for perjury 
 against C. D., it is averred that a 
 cause was depending between A. 
 
 B. and C. D., a notice of set-oflF in- 
 titled in a cause A. B. v. C. D., 
 and signed by the attorney of C. D., 
 is not sufficient evidence to support 
 the allegation. Rex v. Stoveld, 6 
 
 C. & P. 489— Denman. 
 
 In an indictment for perjury com- 
 mitted on the trial of a former cause, 
 the postea alone is sufficient evi- 
 dence to prove that there was a 
 trial, without shewing a copy of 
 the final judgment. Anon., Bull. N. 
 P. 243. 
 
 An allegation in an indictment 
 for perjury, that judgment was en- 
 tered up in an action, is proved by 
 the production of the book from 
 the judgment office in which the 
 incipitur is entered. Reg. v. Gor- 
 don, Car & M. 410 — Denman. 
 
 An indictment, tried before the 
 Lord Chief Justice at Westminster, 
 charged the perjury to have been 
 committed on a trial at nisi prius, 
 although at the King's Bench sit- 
 tings at Westminster. The prose- 
 cutor, to prove the trial at nisi prius, 
 put in the nisi prius record with the 
 minvite of the verdict indorsed on it 
 by the associate. There was no postea 
 drawn up, and the associate stated 
 that none would be drawn up, as a 
 rule for a new trial was pending : — 
 Held, to be sufficient proof of the 
 trial at nisi prius. Rex v. Browne, 
 3 C.&P. 572; M. &M. 315. 
 
 A defendant was indicted for per- 
 jury alleged to have been commit- 
 
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PROOF OF PARTICULAR AVERMENTS. 
 
 415 
 
 ted by him on the hearing before 
 justices of a summons charging him 
 ■with being the father of an illegit- 
 imate child : — Held, that, to support 
 the indictment, it was necessary to 
 give evidence of the charge made 
 by the mother, either by production 
 of the original order made thereon, 
 or by giving secondary evidence of 
 the summons after notice to the de- 
 fendant to produce it ; and that, in 
 the absence of such notice, it was not 
 sufficient to produce the minutes of 
 the proceedings by the clerk to the 
 j unices, those minutes being of no 
 greater authority than the notes of 
 a short-hand writer. Reg. v. Newall, 
 6 Cox, C. C. 21— Wightman. 
 
 On the trial of an indictment for 
 perjury, alleged to have been com- 
 mitted before magistrates, on the 
 hearing of a case punishable on 
 summary conviction, the conviction 
 by the magistrates is not receivable 
 in evidence, because it is irrelevant. 
 Beg. V. QoodfeUow, Car. & M. 569 
 — Patteson. 
 
 In an indictment for perjury be- 
 fore justices of the peace, there must 
 be formal proof of the commence- 
 ment of the proceedings by produc- 
 tion of the summons, information or 
 the like. Reg. v. Hurrell, 3 F. & P. 
 271— Martm. 
 
 A. was indicted for wilful and 
 corrupt perjury committed at the 
 Westminster police court. A sum- 
 mons was granted upon an informa- 
 tion, and upon the hearing of the 
 summons the perjury assigned was 
 committed. At the trial the in- 
 formation was produced, but not 
 the summons : — Held, not sufficient ; 
 the summons should have been pro- 
 duced. Reg. V. Whybrow, 8 Cox, C. 
 C. 438 — Russell Gurney, Recorder. 
 
 An office copy of a bill in Chan- 
 cery, which a witness examined 
 with the original but which office 
 copy contained abbreviations, such 
 as " pnl. este." for the words " per- 
 sonal estate" in the original bill, is 
 not such an examined copy as will 
 be evidence to support an allegation 
 
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 of a bill in Chancery on an indict- 
 ment for perjury, committed in an 
 affidavit in that suit in Chancery. 
 Reg. V. Christian, Car. & M. 388 — 
 Denman. 
 
 On an indictment for perjury, set- 
 ting forth, with proper innuendoes, 
 a copy of a deposition before a mag- 
 istrate, written in the English lan- 
 guage, and signed by the defendant, 
 he may be convicted on proof of a 
 verbal deposition in the Welsh lan- 
 guage, of which the written deposi- 
 tion, signed by him, is the sub- 
 stance. Reg. V. Thomas, 2 C. & K. 
 806— WilUams. 
 
 In an indictment for perjury, it 
 was alleged that A. made his will, 
 and thereby appointed B. his execu- 
 tor : the production of the probate 
 is the proper proof of this allega- 
 tion ; but if it had been necessary 
 to prove that A. had devised real 
 estates, the original will must have 
 been produced, and one of the at- 
 testing witnesses called. Reg. v.- 
 Turner, 2 C. & K. 732— Erie. 
 
 In an indictment for perjury, it 
 was averred that a suit was insti- 
 tuted in the Prerogative Covirt by C. 
 against B., to dispute the validity of 
 a codicil to a will : — Held, that the 
 production of the original allegations 
 of both parties in the suit, signed by 
 their advocates, and proof of their 
 advocates' signatures, and that they 
 acted as advocates in that court, 
 such allegations being produced 
 from the registrar of the court, 
 was sufficient proof of the aver- 
 ment, and that the caveat need 
 not be produced. Ih. 
 
 In an indictment for perjury, on 
 the trial of a cause under a writ of 
 trial directed to the sheriffs of Lon- 
 don, the oath is properly alleged to 
 have been taken before the sheriffs, 
 though, in fact, the cause was tried 
 before the secondary. Reg. v. Schles- 
 inger, 10 Q. B. 670 ; 12 Jur. 283 ; 17 
 L. J., M. C. 29. 
 
 An indictment for perjury alleged 
 the trial of an issue before E. S., 
 esq., sheriff of D., by virtue of' a 
 
416 
 
 PERJURY. 
 
 writ directed to the sheriff; the writ 
 of trial put in evidence was directed 
 to the sheriff, and the return was of 
 a trial before him ; but it was prov- 
 ed, that, in fact, the trial took place 
 before a deputy, not the under-sher- 
 iff: — Held, no variance. Meg. v. 
 Dunn, 2 M. C. C. 297 ; 1 C. & K. 
 730. 
 
 11. Proof of Indictment. 
 
 By 14 & 15 Vict. c. 100, s. 22, " a 
 " certificate containing the substance 
 " and effect only (omitting the form- 
 " al part) of the indictment and tri- 
 " al for any felony or misdemeanor, 
 " purporting to be signed by the 
 " clerk of the court or other officer 
 " having the custody of the records 
 " of the court where such indictment 
 " was tried, or by the deputy of such 
 " clerk or other officer (for which 
 " certificate a fee of 6s. 8c?. and no 
 " more shall be demanded or taken), 
 " shall upon the trial of any indict- 
 "ment for perjuiy, or subornation 
 " of peijury, be sufficient evidence 
 " of the trial of such indictment for 
 "felony or misdemeanor, without 
 " proof of the signature or official 
 " character of the person appearing 
 " to have signed the same." 
 
 On an indictment for perjury 
 committed on the hearing of a par- 
 ish appeal at the quarter sessions, 
 the production of the sessions book 
 is not sufficient proof that the ap- 
 peal came on to be heard ; and a 
 regular record ought to b*e made 
 upon parchment, the same as on a 
 return to a certiorari, and that re- 
 cord, or an examined copy, must be 
 produced. Rex v. Ward, 6 C. &. P. 
 366— Park. 
 
 An allegation, that " on &c., at 
 &c., a certain indictment was pre- 
 ferred at the quarter sessions of the 
 peace then and there holden in and 
 for the county of W., against the 
 defendant and one T. E., which in- 
 dictment was then and there found 
 a true bill," is not supported by the 
 production of the original indict- 
 
 ment with the words " true bill " 
 indorsed on it, it being necessary 
 that a regular record should be 
 drawn up and proved, either by 
 its production or by an examined 
 copy of it. Porter v. Cooper, 6 C. 
 & P. 354— Patteson. 
 
 On the trial of an indictment for 
 perjury at the Central Criminal 
 Court, to prove the fact of a former 
 trial in the same court : — Held, that 
 the production, by the officers of the 
 court, of the caption, the indictment, 
 with the indorsement of the prison- 
 er's plea, the verdict, and the sen- 
 tence of the court upon it, together 
 with the minutes of the trial made 
 l)y the officer in court, was sufficient 
 evidence of it ; and that the produc- 
 tion of neither the record nor a cer- 
 tificate, under 14 & 15 Vict. c. 99, 
 s. 13, and 14 Sc 15 Vict. c. 100, s. 
 22, was necessary. Reg. v. New- 
 man, 3 C. & K. 240 ; 2 Den. C. C. 
 390 ; 16 Jur. Ill ; 21 L. J., M. C. 
 75 ; 5 Cox, C. C. 547. 
 
 12. 
 
 Witnesses and Corroborative Ev- 
 idence. 
 
 The evidence of one witness is 
 not sufficient to convict of perjury, 
 as there would be only one oath 
 against another. Rex v. Lee, 3 
 Russ. C. & M. 78 ; S. P., Champ- 
 neyh case, 2 Lewin, C. C. 258. 
 
 But two witnesses are not essen- 
 tially necessary to disprove the fact 
 sworn to ; for, if any material cir- 
 cumstance is proved by other wit- 
 nesses in confirmation of the witness 
 who gives the direct testimony of 
 peijury, it may turn' the scale and 
 warrant a conviction. Ih. 
 
 And the rule does not apply where 
 the evidence consists of the contra- 
 dictory oath of the party accused. 
 Rex v. Knill, 5 B. & A. 929, n. 
 
 To prove peijury, it is sufficient 
 if the matter alleged to be falsely 
 sworn is disproved by one witness, 
 if, in addition to the evidence of 
 that witness, there is proof of an 
 account, or a letter written by the 
 
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WITNESSES, ETC. 
 
 417 
 
 defendant contradicting Ms state- 
 ment on oath. Rex v. Mayhew, 6 
 C. & P. 315— Denman. 
 
 On an indictment for perjm-y, al- 
 leged to have been committed at 
 the quarter sessions, the chairman 
 at the quarter sessions ought not to 
 be called upon to give evidence as 
 to what the defendant swore at the 
 quarter sessions. Reg. v. Gazard, 8 
 C. & P. 595— Patteson. 
 
 A., in an affidavit stated that he 
 had paid all the debts proved under 
 his bankruptcy, except two, as to 
 which he explained; in support 'of 
 an indictment for perjury upon that 
 affidavit several creditors were call- 
 ed, who each proved the uon-pay- 
 ment of his own debt : — Held, that 
 this was not sufficient to warrant a 
 conviction, and that as to the non- 
 payment of each debt, it was neces- 
 sary to have the evidence of two wit- 
 nesses, or of one witness, and such 
 corroborative testimony as is equal 
 to the testimony of a second wit- 
 ness. Req. V. Parker, Car. & M. 639 
 — Tindal. 
 
 The rule, that the testimony of a 
 single witness is not sufficient to 
 sustain an indictment for peijury, is 
 not a mere technical rule, but a rule 
 founded on substantial justice ; and 
 evidence, confirmatoi'y of that one 
 witness in some slight particulars 
 only, is not sufficient to warrant a 
 conviction. Reg. v. Yates, Car. & 
 M. 132 ; 5 Jur. 636— Coleridge. 
 
 Although an assignment of per- 
 jury must be proved by two wit- 
 nesses, it is not necessary to prove 
 by two witnesses every fact which 
 goes to make out the assignment of 
 perjury. Reg. v. Roberts, 2 C. & K. 
 607 — Patteson. 
 
 A., to prove an alibi for B., had 
 sworn that B. was not out of his 
 sight between the hours of 8 a.m. 
 and 9 a.m. on a certain day, and 
 on this perjury was assigned. Proof 
 by one witness, that between those 
 hours A. was at one place on foot, 
 and by another witness, that be- 
 tween those hours B. was walking 
 
 at another place six miles off: — 
 Held, to be sufficient proof of the 
 assignment of perjury. lb. 
 
 Where perjury was assigned up- 
 on a statement made by the prison- 
 er on oath, upon a trial at Nisi Prius, 
 that in June, 1851, he owed no more 
 than one quarter's rent to his land- 
 lord, and the prosecutor swore that 
 the prisoner owed five quarters' 
 rent at that date ; and to corrobor- 
 ate the prosecutor's evidence, a wit- 
 ness vi'as called, who proved that in 
 August, 1850, the prisoner had ad- 
 mitted to him that he then owed his 
 landlord three or four quarters' rent : 
 — ^Held, first, that this was not such 
 corroboration as is necessary to sus- 
 tain an indictment for perjury. Reg. 
 V. Bouher, 3 C. & K. 236 ; 2 Den. 
 C. C. 396; 16 Jur. 135; 21 L. J., 
 M. C. 57 ; 5 Cox, C. C. 543. 
 
 Held, secondly, that two wit- 
 nesses are not essentially necessary 
 to contradict the oath on which the 
 perjury is assigned, but that there 
 must be something more than the 
 oath of one, to shew that one party 
 is more to be believed than the oth- 
 er, lb. 
 
 To support an indictment for per- 
 jury there must be something prov- 
 ed in the case for the prosecution, 
 making the oath of the prosecutor 
 preferable to that of the defendant; 
 there need not be tvKO distinct oaths, 
 as one oath and circumstances may 
 be sufficient. lb. 
 
 A peiBon may be indicted for per- 
 jury who gives false evidence before 
 a grand jury when examined as a 
 witness before them upon a bill of 
 indictment ; and another witness on 
 the same indictment, who is in the 
 grand jury-room while such person 
 is under examination, is competent 
 to prove that such witneSte swore be- 
 fore the grand jury, and so is a po- 
 lice officer, who was stationed with- 
 in the grand jury-room door, to 
 receive the different bills at the 
 door, and take them to tlie fore- 
 man of the grand jury ; these per- 
 sons not being sworn to secrecy, al- 
 
 FisH. Dig.— 31. Digitized by Microsoft® 
 
418 
 
 PERJURY. 
 
 though the grand jury is so. Meg. 
 V. Aghes, 1 C. & K. 519— Tindal. 
 
 The prisoner was charged with 
 perjury, for having falsely sworn 
 before magistrates at petty sessions, 
 that D. R. was the father of her 
 illegitimate child. At the trial of 
 the prisoner the imputed father, D. 
 R., swore that he never had inter- 
 course with her. In corroboration 
 of D. R., a witness was called who 
 swore that the prisoner had told 
 witness, at a time when she gen- 
 erally denied being with child, that 
 "D. R. had never touched her 
 clothes " : — Held, that, as the nega- 
 tion was made by the prisoner at a 
 time when she generally denied be- 
 ing with child, it was so far a part 
 of such general denial that, al- 
 though it could not be altogether 
 withdrawn from the jury, it was 
 not a corroboration of D. R.'s tes- 
 timony, on which alone they could 
 convict her. Another assignment 
 of perjury was, that on the same 
 occasion the prisoner had falsely 
 sworn that her master, who was 
 uncle of D. R., had promised her 
 that he would raise her wages, and 
 allow her to lie in at his house, if 
 she would swear the child to a per- 
 son other than his nephew, D. R. : 
 — Held, that such statement was 
 not material to the issue so as to 
 constitute the- crime of perjury. 
 Reg. V. Owen, 6 Cox, C. C. 105— 
 Martin. 
 
 Although it is not necesfary that 
 the alleged perjury should be prov- 
 ed by two witnesses in contradic- 
 tion of the prisoner, it is requisite 
 that the perjury should be proved 
 by something more than the mere 
 contradictory oath of the prosecu- 
 tor. He must be corroborated by 
 some independent testimony. Meg. 
 V. Braithwaite, 8 Cox, C. C. 254 ; 1 
 F. & F. 638— Watson. 
 
 A party was charged with hav- 
 ing falsely sworn that certain in- 
 voices bearing certain dates were 
 produced by her to C. The only 
 witness called was C, who swore 
 
 that she had not produced those in- 
 voices, but that she had produced 
 others of the dates of which he 
 made a memorandum at the time : 
 — ^Held, that the memorandum was 
 a sufficient corroboration upon which 
 to convict. Meg. v. Webster, 1 F. & 
 F. 515— Cockbum. 
 
 The prisoner was convicted of 
 perjury. He was a policeman, hav- 
 ing laid an information against a 
 publican for keeping open his house 
 after lawful hours, and swore, on 
 the hearing, that he knew nothing 
 of the matter except what he had 
 been told, and that " he did not 
 see any person leave the defendant's 
 house after eleven " on the night in 
 question. The perjury was assigned 
 on this last allegation, and the evi- 
 dence to prove its falsehood was, 
 that the prisoner when laying the 
 information, said that " he had seen 
 four men leave the house after 
 eleven," and that he could swear to 
 one as W. On two other occasions 
 the prisoner made a similar state- 
 ment to two other witnesses ; and 
 W. and others did, in fact, leave 
 the house after eleven o'clock on 
 the night in question; that on the 
 hearing the prisoner acknowledged 
 that he had offered to smash the 
 case for 30s. ; that he had talked, in 
 the presence of another witness, of 
 making the publican give him mon- 
 ey to settle it ; and he had, in fact, 
 offered to the publican to settle it 
 for 1^., and had said that he had re- 
 ceived 10s. to smash the case, and 
 was to have 10s. more : — Held, that 
 the evidence was sufficient to prove 
 the perjury assigned, and that the 
 conviction was right. Meg. v. Hook, 
 Dears. & B. C. C. 606 ; 4 Jur., N. 
 S. 1026 ; 27 L. J., M. C. 222 ; 8 
 Cox, C. C. 5. 
 
 18. Trial. 
 It is the practice of the Central 
 Criminal Court not to try an indict- 
 ment for peijury arising out of a 
 civil suit, while that suit is in any 
 way undetermined, except in cases 
 
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ON REGISTRATION OF VOTERS, ETC. 
 
 419 
 
 where the court in which it is pend- 
 ing postpones the decision of it in 
 order that the criminal charge may 
 be first disposed of. Rex v. Ash- 
 hum, 8 C. & P. 50— Parke. See 
 Peddell v. Rutter, 8 C. & P. 340. 
 
 14. False Declarations. 
 
 (a) Customs. 
 
 Making false declarations in mat- 
 ters relating to the customs, see 16 
 «& 17 Vict. c. 107, s. 198, and 18 & 
 19 Vict. c. 96, s. 38. 
 
 (h) On Registration of Voters and 
 at Parliamentary Elections. 
 
 By 28 & 29 Vict. c. 36, s. 10, 
 " persons changing their abodes be- 
 " fore the last day of July in any 
 " year, and objected to, may make 
 " declarations as to the true place 
 " of their abodes and qualification, 
 " for the purpose of being registered 
 " as voters, and, by s. .11, persons 
 " falsely signing such d'eclarations, 
 " will be guilty of a misdemeanor, 
 " punishable by fine or imprison- 
 " ment for a term not exceeding one 
 " year." 
 
 An indictment for wilfully mak- 
 ing a false answer to the third ques- 
 tion put to a party tendering his 
 vote at an election of members of 
 parliament, in pursuance of 2 & 3 
 Will. 4, c. 45, s. 58, had been re- 
 moved by certiorari. At the trial, 
 several objections were taken, 
 grounded on the omission of proper 
 allegations in the indictment : — 
 Held, that, being on the record, 
 they should be left to the decision 
 of the court. Reg. v. Bowler, Car. 
 & M. 559 ; 6 Jur. 287— Patteson. 
 
 Where an averment states the 
 words of the afllrmative answer, 
 they must be proved as alleged. 
 Ih. 
 
 On an indictment under 2 & 3 
 Will. 4, c. 45, s. 58, for giving a 
 false answer at the poll at an elec- 
 tion of members of parliament for a 
 borough, it is not essential that the 
 returning officer should himself put 
 
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 the three questions to the voters 
 under sect. 53, it is sufficient if the 
 town clerk does it in his presence, 
 and by his direction; neither is it 
 necessary to shew that the agent 
 who required the questions ft) be 
 put was expressly appointed by the 
 candidate ; it is sufficient to shew 
 that he has acted as agent for the 
 candidate. Reg. -t.' Spalding, Car. 
 & M. 568— Patteson. 
 
 The word wilfully, in an indict- 
 ment on the 2 & 3 Will. 4, c. 45, s. 
 58, for giving a false answer at the 
 poll, should be construed in the 
 same way as in an indictment for 
 perjury, and be supported by the 
 same sort of evidence. Reg. v. 
 EUis, Car. & M. 564 ; 6 Jur. 287 
 — ^Patteson. 
 
 A voter having changed his resi- 
 dence since the last registration, 
 cannot be indicted u.nder 2 & 3 
 Will. 4, c. 45, for swearing that he 
 has still the same qualification, if 
 the sheriff's deputy should omit, at 
 the time the voter tenders his vote, 
 to read over to him the specific 
 qualification from the register. 
 Reg. V. Lucy, Car. & M. 511 — 
 Wightman. 
 
 On an indictment against a voter 
 for making a false declaration as to 
 his possession of the same qualifica- 
 tion, under 2 & 3 Will. 4, c. 45, s. 
 58, a copy of the original register, 
 made according to s. 65, may be re- 
 ceived in evidence ; and it is suffi- 
 cient if it resembles the original in 
 respect of the voter's name and de- 
 scription. Reg. V. Dodsworih, 8 C. 
 & P. 218 ; 2 jur. 131— Denman. 
 
 The words, " the same qualifica- 
 tion," mean that the voter must, at 
 the time of the election, be in pos- 
 session of the identical qualification 
 in respect of which he was register- 
 ed. It is not enough if he possesses 
 premises of a similar description. 
 Ih. 
 
 If a person knew that at the time 
 of polling he gave a false answer as 
 to his having the same qualification 
 as at the time of registration, it 
 
420 
 
 PERJURY. 
 
 would be no defence to au indict- 
 ment for that oifence that he acted 
 under the advice of an electioneer- 
 ing committee ; but if, possessing 
 property of equal value with that for 
 whiah he was registered, he acted 
 boni. fide, and under an impression 
 that he was entitled to vote, he 
 ought to be aicquitted. lb. 
 
 IJpon an indictment, in falsely 
 taking the free-holder's oath at an 
 election of a knight of the shire in 
 the name of J. W. ; it appearing by 
 competent evidence that the free- 
 holder's oath was administered to a 
 person who polled on the second 
 day of the election by the name of 
 J. W., who swore to his freehold 
 and place of abode, and that there 
 was no such jjerson ; and that the 
 defendant voted on the second day, 
 and was no freeholder, and some- 
 time after boasted that he had done 
 the trick, and was not paid enough 
 for the job, and was afraid he 
 should be pulled up for his bad vote ; 
 and it not appearing that more than 
 one false vote was given on the sec- 
 ond day's poll, or that the defend- 
 ant voted in his own name, or in 
 any other than the name of J. W. : 
 — Held^ that there was sufficient ev- 
 idence for the jury to presume that 
 the defendant voted in the name of 
 J. W., and consequently to find 
 him guilty of the charge as alleged 
 in the indictment. Mex v. Price, 
 6 East, 323 ; 2 Smith, 525. And 
 see Rex v. Zee/e, 2 Camp. 139 ; and 
 PurceU V. M^Namara, 9 East, 157. 
 
 (c) Corporate. 
 
 By 5 & 6 Will. 4, c. 76, s. 34, 
 " if any person shall wilfully make 
 " a false answer to any of the ques- 
 " tions req^red by this section he 
 " shall be guilty of a misdemeanor, 
 " and may be indicted and punished 
 " accordingly." 
 
 An indictment upon the above 
 section for giving a false answer on 
 voting for a town councillor, is bad, 
 if it does not allege that the defend- 
 ant wilfully gave the false answer. 
 
 Reg. V. Bent, 2 C. & K. 179 ; 1 
 Den. C. C. 157. 
 
 Where a count alleged that the 
 prisoner falsely, fraudulently and 
 deceitfully jjersonated a burgess at 
 an election of councillors for a 
 borough : — Held, no oifence under 
 this section or at common law. Ih. 
 
 The son of a burgess, of the same 
 name as his father, living in the 
 house in respect of which the father 
 had been qualified, but the father 
 having for some time been absent, 
 and the son paying the rates, is not 
 indictable for untruly answering the 
 questions put to voters upon his vot- 
 ing. Reg. V. Goodman, 1 F. & F. 
 502— Wightman. 
 
 (d) Before Magistrates. 
 
 An indictment on 5 & 6 Will. 4, 
 0. 62, s. 13, for making a false de- 
 claration before a magistrate, stated, 
 that, by the rules of a benefit society, 
 any full free member of it who sus- 
 tained a loss by an accidental fire 
 was to be indemnified to the extent 
 of \bl., on making a declaration be- 
 fore a magistrate verifying his loss ; 
 and that the defendant was a full 
 free member of the society, and had 
 made a false declaration before a 
 magistrate, that he had sustained a 
 loss by fire. On the trial, the rules 
 of the society could not be proved ; 
 but held, that the allegations in the 
 indictment respecting the rules 
 might be rejected as surplusage, as 
 the ofience of the defendant, in mak- 
 ing the false declaration as to the 
 fire, would be an ofience within the 
 statvite, if no such benefit society 
 had ever existed. Reg. v. Boiines, 
 1 C. & K. 65— Erskine. 
 
 The 5 & 6 Will. 4, c. 62, s. 18, 
 which enables magistrates to receive 
 voluntary declarations instead of 
 oatlis, extends to declarations gen- 
 erally, and is not confined to declar- 
 ations with respect to the confirma- 
 tion of written instruments or alle- 
 gations, or proofs of debts, or of the 
 execution of deeds, or other matters 
 ejusdem generis, lb. 
 
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FALSE DECLAEATIONS. 
 
 421 
 
 Where a person is indicted for 
 having made a false declaration as 
 to a iire having taken place at his 
 house, evidence may be given, that, 
 with the declaration, he sent a cer- 
 tificate, which stated the fire to have 
 occurred, and that the signatures to 
 that certificate were all forgeries, as 
 this evidence may go, to shew that 
 the declaration was wilfully false. 
 
 n. 
 
 An indictment for perjury in, 
 making a false declaration under 5 
 & 6 Will. 4, c. 62, s. 18, cannot be 
 sustained when the deed or written 
 instrument of which the declaration 
 is confirmatorv is not duly proved. 
 Reg. V. Cox, 4 P. & F. 42— Byles. 
 
 An indictment under 5 & 6 Will. 
 4, c. 62, s. 13, for administering an 
 extra-judicial oath, is bad, if it does 
 not so far set out the deposition, 
 that the court may judge whether 
 or not it is of the nature contem- 
 plated by the statute. B,eq. v. Nott., 
 4 Q. B. 768 ; 9 Oox, C. C. 301 ; D. 
 & M. 1 ; 7 Jur. 621 ; 12 L. J., M. 
 C. 143. 
 
 To prove the making of a false 
 declaration under the Pawnbroker's 
 Act (39 & 40 Geo. 3, c. 99), it is 
 not absolutely necessary to call the 
 magistrate before whom it was 
 made or some one present at the 
 time. Reg. v. Browning, 3 Cox, C. 
 C. 437. 
 
 To prove that such a declaration 
 is false in fact, it is necessary to neg- 
 ative the defendant's statement by 
 the oath of two witnesses in the 
 same manner, and to the same ex- 
 tent as on the proof of an assign- 
 ment for perjury. Ih. 
 
 A county magistrate complained 
 to the bishop of the diocese of the 
 conduct of two of his clergy ; and 
 to substantiate his charge he swore 
 witnesses before himself,- as magis- 
 trate, to the the truth of the facts : 
 — ^Held, that the matter before the 
 bishop was not a judicial proceed- 
 ing, and therefore that the magis- 
 trate had brought himself within 
 the 5 & 6 Will. 4, c. 62, s. 13 ; and 
 
 that he hqd unlawfully administered 
 voluntary oaths, contrary to the en- 
 actment of the statute. Reg. v. 
 Nott, Car. & M. 288 ; D. & M. 1 ; 
 4Q. B. 768; 12L. J.,M. C. 148. 
 
 (e) On Registration of Births, 
 Deaths or Marriages. 
 
 An indictment, under 6 & 7 
 Will. 4, c. 86, s. 41, charged, that a 
 clergyman solemnized a marriage 
 and was about to register in dupli- 
 cate the particulars relating to the 
 marriage, and that the prisoner did 
 wilfully make to the clergyman, for 
 the purpose of being inserted in the 
 register of marriage, certain false 
 statements. The proof was, that the 
 particulars were entered by the 
 clerk of the church before the mar- 
 riage ; that, after the marriage, the 
 clergyman asked thcipvisoner if they 
 were correct, and that he answered 
 in the affirmative, and the clergy- 
 man signed the register : — Held, 
 that the prisoner was rightly con- 
 victed. Reg. V. Broivn, 2 C. & K. 
 504 ; 1 Den. C. C. 291 ; 3 Cox, C. 
 C. 127; 17L. J., M. C. 145. 
 
 Held, also, that it was not neces- 
 sary, upon the indictment, to prove 
 that the register books used by the 
 clergyman were furnished to him by 
 the r,egistrar-genera]. lb. 
 
 The 6 & 7 Will. 4, c. 86, s. 41, 
 makes it a misdemeanor to make a 
 false statement of one or more of the 
 particulars required to be registered 
 for the purpose of being inserted in 
 any register of births, deaths or 
 marriages; and to constitute this 
 offence, the purpose need not be 
 efiected. Reg. v. Mason, 2 C. & 
 K. 622— Cresswell. 
 
 But it is a felony, under sect. 43, 
 to cause the registrar to make an 
 entire false entry of a birth, mar- 
 riage or death. Ih. 
 
 A woman went to a registrar, 
 and asked him to register the birth 
 of a child ; she stated to him the 
 particulars necessary for the entry, 
 and he made the entry accordingly, 
 and she signed it as the person giv- 
 
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422 
 
 PERJURY. 
 
 ing the infoi-mation. Every partic- 
 ular which she stated was false : — 
 Held, that this amounted to the 
 felony of causing a false entry to be 
 made" within 6 & 7 Will. 4, c. 86, 
 s. 43, and was not merely the mis- 
 demeanor of making a false state- 
 ment under s. 4] . Reg. v. Dewitt, 
 2 C. & K. 905 ; 4 Cox, C. C. 49— 
 Cresswell. 
 
 To support an indictment on 6 
 & 7 Will. 4, o. 86, s. 41, for making 
 a false statement touching the par- 
 ticulars required to be registered for 
 the purpose of their being inserted 
 in a register of marriages, it is es- 
 sential that the false statement 
 should have been made wilfully and 
 intentionally, and not by mistake 
 only. Reg. v. Dunhoyne {Lord), 3 
 C. & K. 1— Campbell. 
 
 A man may change his surname 
 by use and reputation, and if by 
 use and reputation he has acquired 
 a new name, he is not indictable 
 imder 19 & 20 Vict. c. 19, s. 2, for 
 using a new name in signing a notice 
 for the purpose of procuring his mar- 
 riage under 6 & 7 Will. 4, c. 85. 
 Reg. V. Smith, 4 F. & F. 1099— 
 Willes. 
 
 15. Seditious Practices and Unlaw- 
 ful Oaths. 
 
 Statutes.]— Zl Geo. 3, c. 123; 39 
 Geo. 3, c. 79; 2 & 3 Vict. c. 12; 
 52 Geo. 3, c. 104 ; 57 Geo. 3, c. 19, 
 s. 25. 
 
 The provisions of 37 Geo. 3, c. 
 123, which make it a felony to ad- 
 minister an unlawful oath, are not 
 confined to oaths administered with 
 either a mutinous or a seditious ob- 
 ject. Rex V. Brodribb, 6 C. & P. 
 571— Holroyd. 
 
 A party of sixteen persons was 
 ■going out armed for the purpose of 
 night poaching. Before they went 
 out the prisoner swore them all to 
 secrecy : — Held, a felony within 
 that statute. lb. 
 
 Where sixteen persons took the 
 same unlawful oaths, two or three 
 at a time, all being present : — Held, 
 
 that the person who administered 
 the oath might be convicted on an 
 indictment for administering a cer- 
 tain oath to A., B., C, D., &c. 
 (naming the whole sixteen persons.) 
 lb. 
 
 If the indictment states the oaths 
 to have been, not to inform or give 
 evidence against any person belong- 
 ing to a confederacy of persons as- 
 sociated together to do a certain 
 illegal act, this is sufficient, without 
 stating what the illegal act was. 
 lb. 
 
 If the oath administered was in- 
 tended to make the parties to whom 
 it was administered believe them- 
 selves under an engagement, it is 
 equally within the statute whether 
 the book on which they were sworn 
 was a Testament or not. Tb. 
 
 Where an oath was administered, 
 that the party taking it should not 
 make buttons under certain stated 
 prices, and should keep all the 
 secrets of the lodge : — Held, to be 
 an administering of an unlawful 
 oath within the statutes. Rex v. 
 Ban,<o C. & P. 563— Williams. 
 
 The administering an oath or 
 any agreement to any person not 
 to reveal the secrets of any associa- 
 tion, is an oiFence within those stat- 
 utes, lb. 
 
 An association, the members of 
 which are bound by oath not to 
 disclose its secrets, is an unlawful 
 combination and confederacy (un- 
 less expressly declared by some act 
 of parliament to be legal), for what- 
 ever purpose or object it may be 
 formed ; and the administering of 
 an oath not to reveal anything 
 done in such association is an o£ 
 fence within 37 Geo. 3, c. 123, s. 1. 
 Rex V. Lovelass, 6 C. & P. 596 ; 1 
 M. & Rob. 349— WilUams. 
 
 The precise form in which the 
 oath is administered is not material ; 
 it is an oath within the meaning of 
 the act, if it was understood by the 
 party tendering, and the party tak- 
 ing it, as having the force and obli- 
 gation of an oath. lb. 
 
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PERSONATION. 
 
 423 
 
 Every person who engages in an 
 association, the members of which, 
 in consequence of being so, take 
 an oath not required by law, is 
 guilty of an offence within 57 Geo. 
 3, c. 19, s. 25. Rex v. Bimn, 6 C. 
 & P. 601— Bosanquet. 
 
 The unlawful administering, by 
 any associated body of men, of an 
 oath to any person, purporting to 
 bind him not to reveal or discover 
 such unlawful combination or con- 
 spiracy, nor any illegal act done by 
 them, is felony within the 37 Geo. 
 3, c. 123, though the object of such 
 association was a conspiracy to raise 
 wages and make regulations in a 
 certain trade, and not to stir up 
 mutiny or sedition. Rex v. Marks, 
 3 East, 157. 
 
 Indictment^ — By 37 Geo. 3, c. 
 123, s. 4, it shall not be necessary, 
 in an indictment for any oifence 
 under this statute, to set forth the 
 words of the oath, but it shall be 
 sufficient to set forth the purport of 
 it, or some material part thereof, an 
 uidictment charging that the de- 
 fendants administered to J. H. an 
 oath, intended to bind him not to 
 inform or give evidence against 
 any member of a certain society 
 formed to disturb the public peace, 
 for any act or expression of his or 
 theirs, is good, without alleging 
 the tenor or purport of the oath to 
 be set forth, and without shewing 
 in what manner the public peace 
 was meant to be disturbed by such 
 society. Rex v. Moore, 6 East, 
 419. 
 
 Evidenced] — Where the witness, 
 swearing to the words spoken by 
 way of oath by the prisoner when 
 he administered the same, said that 
 he held a paper in his hand at the 
 same time when he administered 
 the oath, from which it was sup- 
 posed that he read the words; yet 
 held, that parol evidence of what 
 he in fact said, was sufficient wilh- 
 out giving him notice to produce 
 such paper. lb. 
 
 XXVn. Peesonation. 
 
 1. Stockholders, 423_. 
 
 2. Seamen and Soldiers, 423. 
 
 3. Voters, 424. 
 
 1. Stockholders. 
 
 By 24 & 25 Vict. c. 98, s. 3, 
 " whosoever shall falsely and de- 
 " ceitfully personate any owner of 
 " any share or interest of or in any 
 " stock, annuity, or other public 
 " fund which now is or hereafter 
 " may be transferable at the Bank 
 " of England or at the Bank of Ire- 
 " land, or any owner of any share 
 " or interest of or in the capital 
 " stock of any body corporate, com- 
 " pany or society which now is or 
 " hereafter may be established by 
 " charter, or by, under or by virtue 
 " of any act of parliament, or any 
 " owner of any dividend or money 
 " payable in respect of any such 
 " share or interest as aforesaid, and 
 " shall thereby transfer or endeav- 
 " our to transfer any share or in- 
 " terest belonging to any such 
 " owner, or thereby receive or en- 
 " deavour to receive any money 
 " due to any such owner, as if such 
 " offender were the true and lawful 
 " owner, shall be guilty of felony." 
 (Former provision, 11 Geo. 4 & 1 
 Will. 4, c. 66, s. 6.) 
 
 Obtaining and indorsing a divi- 
 dend warrant at the bank in the 
 name of a stockholder is " person- 
 ating a proprietor, and thereby en- 
 deavouring to receive the divi- 
 dend," although no attempt what- 
 ever is made to receive the money 
 at the pay-office. Rex v. Rarr, 1 
 Leach, C. C. 434; 2 East, P. C. 
 1005. 
 
 2. Seamen and Soldiers. 
 
 11 Geo. 4 & 1 Will. 4, c. 20, s. 
 84 ; 2 & 3 Will. 4, c. 53, s. 49 ; 28 
 & 29 Vict. c. 124, s. 8. 
 
 Under 31 Geo. 2, c. 10, the per- 
 sonating must be of some existing 
 person entitled, or who prima facie 
 might be entitled, to receive the 
 
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424 
 
 POISONING. 
 
 wages. Rex v. JBrown, 2 East, P. 
 C. 1007. 
 
 Where a prisoner personated one 
 S. Cuff, who was dead, and whose 
 prize-money had been paid to his 
 mother : — Held, that it did not 
 vary the prisoner's guilt ; and that 
 he might be convicted on 54 Geo. 
 3,0. 93, s. 89. Rex v. Cramp, R. 
 & R. C. C. 327 ; S. P., Reg. v. 
 Pringle, 9 G. & P. 408 ; 2 M. C. 
 C. 127. 
 
 The prisoner applied at Green- 
 wich Hospital for prize-money in 
 the name of J. B.; J. B. was dead, 
 and was supposed to be so at the 
 hospital, and the prisoner did not 
 obtain the money. On an indict- 
 ment for personating : — Held, that 
 the .54 Geo. 3, c. 93, s. 89, applied, 
 although the seaman was dead. 
 Rex v. Martin, R. & R. C. C. 324. 
 
 To constitute the offence of per- 
 sonating the name of a seaman un- 
 der 57 Geo. 3, c. 127, s. 4, the 
 person entitled, or really supposed 
 to be entitled to prize-money, must 
 be personated ; personating a man 
 who never had any connection with 
 the ship is not an offence within the 
 act. Rex v. Tannet, R. & R. C. C. 
 351. 
 
 All persons aiding and abetting 
 the personating a seaman entitled 
 to allowance money are principals, 
 and the offence is not confined to 
 the person only who personates the 
 seaman. Rex v. Potts, R. & R. C. 
 C. 353. 
 
 3. Yoters. 
 
 Parliamentary.]— {Q & 7 Vict, 
 c. 18, s. 83.) _^ 
 
 On an indictment for fraudulent- 
 ly personating a voter at an elec- 
 tion of a member of parliament for 
 a city being a county of itself, the 
 writ to the sheriff must be pro- 
 duced in order to prove that the 
 election was duly made. Reg. v. 
 Vaile, 6 Cox, C. C. 470— Cromp- 
 ton. 
 
 Municipal.'] — The offence of in- 
 
 ducing another to personate a voter 
 at a municipal election under 22 & 
 23 Vict. c. 35, s. 9, is complete 
 upon the personator tendering the 
 voting paper, although, on being 
 asked if he is the person whose 
 name is signed to the voting paper, 
 he answers " No," and the vote is 
 accordingly rejected. Reg. v. Hague, 
 9 Cox, C. C. 412; 4 B. & S. 715; 
 33 L. J., M. C. 81. 
 
 Municipal Voters.] — ^By 14 & 15 
 Vict. c. 105, s. 3, if any person, 
 pending, or after the election of 
 any guardian, shall wilfully, fraud- 
 ulently, and with intent to affect 
 the result of such election, person- 
 ate any person entitled to vote at 
 such election, he shall be liable on 
 conviction by two justices to three 
 months' imprisonment : — Held, that 
 the section makes no provision 
 against the offence of personating a 
 voter who is dead at the time of 
 the election, as the offender cannot 
 in such case be convicted of per- 
 sonating any one "entitled to vote" 
 at the election. Whiteley v. Chap- 
 pell, 38 L. J., M. C. 51 ; 17 W. R. 
 172; 4L. R., Q.B. 147; 19 L. T., 
 N. S. 355. 
 
 XXVIH. Poisoning. 
 
 1 . Placing Poison in Plantations, 424. 
 
 2. Murder by — See Muedkr. 
 
 3. Administering with Intent to Mur- 
 
 der — See McRDER. 
 
 4. To procure Abortion — See Mur- 
 
 der. 
 
 1. Placwig Poison in Plantations. 
 27 & 28 Vict. c. 115, amends the 
 
 26 & 27 Vict. c. 113, " and prohibits 
 " the placing of poisoned iiesh and 
 "poisonous matters in plantations, 
 " fields and open places." 
 
 2. Murder by, see page 330. 
 
 3. Administering Poison with In- 
 tent to Murder, see page 350. 
 
 4. To procure Abortion, see page 
 352. 
 
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PRIZE FIGHTS. 
 
 425 
 
 XXIX. Peize-Figi-its. 
 
 Persons who are present at a 
 prize-fight and who have gone thi- 
 ther with the purpose of seeing the 
 persons strike each other, are all 
 principals in the breach of the 
 peace, and indictable for an assault, 
 as well as the actual combatants, 
 and it is not at all material which 
 of the combatants struck tlie first 
 blow. Rex V. Perkins, 4 0. & P. 
 637— Patteson. 
 
 Where a prize-fight is expected, 
 the magistrates ought to cause the 
 intended combatants to be brought 
 before them, and compel them to 
 enter into securities to keep the 
 peace till the assizes or sessions ; 
 and if they refuse to enter into 
 such securities, to commit them. 
 Bex V. Billingham, 2 C. & P. 234 
 — Burrough. 
 
 All prize-fights are illegal, and 
 all persons engaged in them are 
 punishable by law. Reg. v. Brown, 
 Car. & M. 314— Alderson. 
 
 The spectatorsof a sparring match 
 are not participes criminis, so that 
 their evidence, touching what oc- 
 curred at the match, requires cor- 
 roboration. Reg. V. Young, 10 Cox, 
 C. C. 371— Bramwell. 
 
 There is nothing unlawful in 
 sparring, unless, perhaps, the men 
 fight on until they are so weak that 
 a dangerous fall is like to be the 
 result of the continuance of the 
 game. Therefore, except in the 
 latter case, death caused by an in- 
 jury received during a sparring 
 match does not amount to man- 
 slaughter, lb. 
 
 XXX. Railways and Tele- 
 
 GEAPHS. 
 
 1. Endangering Safety of Persons on 
 
 Railways, 425. 
 
 2. Obstructing Engines or Carriages 
 
 on, 42'7. 
 
 3. Injuring Telegraphs, 427 
 
 Digitized by Microsoft® 
 
 1. Endangering Safety of Persons 
 on Railways. 
 By 24 & 25 Vict. c. 100, s. 32, 
 " whosoever shall unlawfully and 
 " maliciously put or throw upon or 
 "across any railway any wood, 
 " stone or other matter or thing, or 
 " shall unlawfully and malicioTlsly 
 "take up, remove or displace' any 
 " rail, sleeper or other matter or 
 " thing belonging to any railway, 
 " or shall unlawfully and mali- 
 " ciously turn, move or divert any 
 " pomts or other machinery beloug- 
 " ing to any railway, or shall un- 
 " lawfully and maliciously make or 
 " shew, hide or remove any signal 
 " or light upon or near to any rail- 
 " way, or shall unlawfully and ma- 
 " liciously do or cause to be done 
 " any other matter or thing, with 
 " intent, in any of the cases afore- 
 " said, to endanger the safety of 
 " any person travelling or being 
 ■' upon such railway, shall be guilty 
 " of felony, and being convicted 
 ^' thereof shall be liable, at the dis- 
 " cretion of the couri, to be kept 
 " in penal servitude for life, or for 
 " any term not less than five years 
 " (27 & 28 Vict. c. 47), or to be 
 " imprisoned for any term not ex- 
 " ceeding two years, with or with- 
 " out hard labour, and, if a male 
 " under the age of sixteen years, 
 " with or without whipping." {For- 
 mer provision, 14 & 15 Vict. c. 19, 
 s. 6.) 
 
 By s. 33, " whosoever shall un- 
 " lawfully and maliciously throw or 
 " cause to fall or strike at, against, 
 " into or upon any engine, tender, 
 " carriage or truck used upon any 
 " railway, any wood, stone or other 
 " matter or thing, with intent to 
 " injure or endanger the safety of 
 " any person being in or upon such 
 " engine, tender, carriage or truck, 
 " or in or upon any other engine, 
 " tender, carriage or truck of any 
 " train of which such tirst-men- 
 " tioned engine, tender, carriage or 
 "truck shall form part, shall be 
 
 guilty of felony, and being con- 
 
426 
 
 RAILWAYS AND TELEGRAPHS. 
 
 " victed thereof shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for life, or 
 "for any term, not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, -with or with- 
 " out hard labour." {Former pro- 
 vision, 14 & 15 Vict. c. 19, s. 7.) 
 
 By s. 34, " whosoever, by any 
 " unlawful act, or by any wilful 
 " omission or neglect, shall endan- 
 " ger or cause to be endangered the 
 " safety of any person conveyed or 
 " being in or upon a railway, or 
 " shall aid or assist therein, shall 
 " be guilty of a misdemeanor, and 
 " being convicted thereof shall be 
 " liable, at the discretion of the 
 " court, to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour." 
 {Former provision, 3 & 4 Vict. c. 
 97, s. 15.) 
 
 A party was liable to be indicted 
 under 3 & 4 Vict. c. 97, s. 15, if 
 he designedly placed on a railway 
 substances having a tendency to 
 produce obstruction to the car- 
 riages, though he might not have 
 done the act expressly with that 
 object. Meg. v. Holroyd, 2 M. & 
 Rob. 339— Maule. 
 
 On an indictment under 3 & 4 
 Vict. c. 97, s. 15, for unlawfully 
 and wilfully doing anything to en- 
 danger the safety of persons con- 
 veyed in or upon any railway, it 
 was unnecessary to allege or prove 
 that the railway was constructed 
 or worked under the powers of an 
 act of parliament. Heg. v. Sow- 
 ray, 10 Jur. 211 — Alderson. 
 
 A person throwing a stone at 
 engines or carriages using a rail- 
 way, might be indicted under 3 & 
 4 Vict. c. 97, s. 15, for doing an 
 act to endanger the safety of per- 
 sons conveyed on the railway ; and 
 the indictment might contain a 
 count at common law for throwing 
 the stone at the carriages. Ih. 
 
 The neglect of the driver and 
 stoker of a railway engine to keep 
 
 a good look out for signals, accord- 
 ing to the rules and regulations of 
 the railway company, the conse- 
 quence of which neglect is, that a 
 collision occurs, and the safety of 
 passengers is endangered, was not 
 an offence within 3 & 4 Vict. c. 97, 
 s. 15. Reg. v. Pardentmi, 6 Cox, 
 C. C. 247— Cresswell and Williams. 
 
 To constiteute a felony under 14 
 & 15 Vict. c. 19, s. 7, it was neces- 
 sary tliat the stone or other thing 
 used should be thrown against and 
 strike an engine, tender, carriage or 
 truck, having a person or persons 
 in or upon it ; and, therefore, al- 
 though a stone may be thrown at a 
 train with intent to injure persons 
 being therein, yet, if it strikes a 
 carriage or tender not having any 
 person in or upon it at the time, 
 the felony is not proved. Reg. v. 
 Cm/rt, 6 Cox, C. C. 202— Cromp- 
 ton. 
 
 On an indictment under 14 & 15 
 Vict. c. 19, s. 7, for maliciously 
 throwing stones into a railway car- 
 riage, with intent to endanger the 
 safety of any person in it, there 
 must be evidence of an intent to do 
 some grievous bodily haim, such as 
 would support an indictment for 
 wounding a particular person with 
 that intent ; and, if it appears that 
 the prisoner's intention was only to 
 commit a common assault on some 
 person in the carriage, he must be 
 acquitted. Reg. v. Rooke, 1 F. & 
 F. 107— Erie. 
 
 On an indictment for wilfully and 
 maliciously casting anything upon 
 a railway carriage or truck, either 
 with intent to injure it or to endan- 
 ger the safety of persons in the 
 train ; there may be a case for the 
 jury, although the train is a goods 
 train, and there was no person on 
 the particular truck, but there must 
 be proof of the intent to endanger 
 the safetjf of persons in it. Reg. v. 
 Sanderson, 1 F. & F. 37— Channell. 
 
 B. placed a truck across a railway 
 line in such a manner that if a car- 
 riage or an engine had come along 
 
 Digitized by Microsoft® 
 
INJURESTG TELEGRAPHS. 
 
 427 
 
 the line it would have been ob- 
 structed, and the safety of pas- 
 sengers, who might have been in 
 any such carriage, would have been 
 endangered. The railway had not 
 opened for passenger traflSo, and no 
 carriage or engine was in fact ob- 
 structed : — Held, that he was guilty 
 of a misdemeanor, under 3 & 4 Vict. 
 c. 97, s. 15. Reg. v. Bradford, 8 
 Cox, C. C. 309 ; 6 Jur., N". S. 1102 ; 
 
 2 L. T., N. S. 392 ; Bell, C. C. 
 268 ; 29 L. J., M. C. 171 ; 8 W. R. 
 531. 
 
 2. Obstructing Engines or Carriages 
 on. 
 By 24 & 25 Vict. c. 97, ^. 35, 
 '^ whosoever shall unlawfully and 
 " maliciously put, place, oast or 
 " throw upon or across any railway 
 " any wood, stone, or other matter 
 " or thing, or shall unlawfully and 
 " maliciouslj' take up, remove or 
 " displace any rail, sleeper, or other 
 " matter or thing belonging to any 
 " railway, or shall unlawfully and 
 " maliciously turn, move or divftrt 
 " any points or other machinery be- 
 " longing to any railway, or shall- 
 " unlawfully and maliciously make 
 " or shew, hide or remove, any sig- 
 " nal or light upon or near to any 
 " railway, or shall unlawfully and 
 " maliciously do or cause to be done 
 " any other matter or thing, with 
 " intent, in any of the cases afore- 
 " said, to obstruct, upset, over- 
 " thro w, inj ure or destroy any engine, 
 " tender, carriage or truck using such 
 " railway, shall be guilty of felony, 
 " and, being convicted thereof, shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for life, or for any term not 
 " less than five years (27 & 28 
 " Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard la- 
 " bour, and, if a male under the age 
 " of sixteen years, with or without 
 " whipping." [Former provisions, 
 
 3 & 4 Vict. c. 97, s. 15, and 14 & 
 15 Vict. c. 19, s., 6.) 
 
 By s. 36, "whosoever, by any 
 " unlawful act, or by any wilful 
 " omission or neglect, shall obstruct 
 " or cause to be obstructed any en- 
 " gine or carriage using any rail- 
 " way, or shall aid or assist therein, 
 " shall be guilty of a misdemeanor, 
 " and, being convicted thereof, shall 
 " be liable, at the discretion of the 
 " court, to be imprisoned for any 
 " term'not exceeding two years, with 
 " or without hard labour." [For- 
 mer provision, 3 & 4 Vict. c. 97, s. 
 16.) 
 
 The prisoners placed a stone upon 
 a line of railway, so as to cause an 
 obstruction to any carriages that 
 might be traveling thereon : — Held, 
 that if this was done mischievously, 
 and with an intention to obstruct 
 the carriages of the company, the 
 jury would be justified in finding 
 that it was done maliciously. Meg. 
 V. Upton, 5 Cox, C. C. 298— Wight- 
 man. 
 
 Upon an information before jvist- 
 ices on behalf of a railway com- 
 pany, for an ofience against its act 
 of incorporation, in placing stones 
 and rubbish on the railway, and 
 thereby obstructing the free passage 
 of the same, evidence that the act 
 was done by certain persons em- 
 ployed by the defendant to repair a 
 wall between the railway and his 
 premises adjoining ; and that on one 
 occasion the defendant himself, who 
 was standing by, nodded his head, 
 and directed the workman to go on, 
 is sufficient to warrant the justices 
 in convicting the defendant. Rob- 
 erts V. PreUon, 9 C. B., N. S. 208. 
 
 3. Injuring Telegraphs. 
 By 24 & 25 Vict. c. 97, s. 37, 
 " whosoever shall unlawfully and 
 " maliciously cut, break, throw 
 " down, destroy, injure or remove 
 " any battery, machinery, wire, ca- 
 " ble, post, or other matter or thing 
 " whatsoever, being part of or being 
 " used or employed in or about any 
 " electric or magnetic telegraph, or 
 "in the working thereof, or shall 
 
 Digitized by Microsoft® 
 
428 
 
 EAPE, ABUSE AND DEFILEMENT. 
 
 ' unlawfully and maliciously pre- 
 ' vfent or obstruct in any manner 
 ' whatsoever the sending, convey- 
 ' ance or delivery of any communi- 
 ' cation by any such telegraph, 
 ' shall be guilty of a misdemeanor, 
 ' and, being convicted thereof, shall 
 ' be liable, at the discretion of the 
 ' court, to be imprisoned for any 
 ' term not exceeding two years, 
 ' with or without hard labour; pro- 
 ' vided, that if it shall appear to 
 ' any justice, on the examination of 
 ' any person charged with any of- 
 ' fence against this section, that it 
 ' is not expedient to the ends of 
 'justice that the same should be 
 ' prosecuted by indictment, the just- 
 ' ice may proceed summarily to 
 ' hear and determine the same, and 
 ' the offender shall, on conviction 
 ' thereof, at the discretion of the 
 'justice, either be committed to the 
 ' common gaol or house of correc- 
 ' tion, there to be imprisoned only, 
 ' or to be imprisoned and kept to 
 ' hard labour for any term not ex- 
 ' ceeding three months, or else shall 
 ' forfeit and pay such sum of money, 
 ' not exceeding lOZ., as to the just- 
 ' ice shall seem meet." 
 
 By s. 38, " whosoever shall im- 
 ' lawfully and maliciously, by any 
 ' overt act, attempt to commit any 
 ' of the offences in the last preced- 
 ' ing section mentioned, shall, on 
 ' conviction thereof before a justice 
 ' of the peace, at the discretion of 
 ' the justice, either be committed 
 ' to the common gaol or house of 
 ' correction, there to be imprisoned 
 ' only, or to be imprisoned and 
 ' kept to hard labour for any term 
 ' not exceeding three months, or 
 ' else shall forfeit and pay such sum 
 ' of money, not exceeding 101., as 
 ' to the justice shall seem meet." 
 
 XXXI. Rape, Abuse axd De- 
 filement OF Women and 
 Children. 
 
 1. Rape, 428. [430. 
 
 (a.) Who capable of Committing, 
 
 (b) Upon whom Committed, 430. 
 
 (c) AcconiplishTnent or Comple- 
 
 tion, 431. 
 
 (d) Indictment, 431. 
 
 (e) Evidence, 432. 
 
 (() Where Triable, 435. 
 
 2. Abuse of Children, 435. 
 
 3. Defilement, 438. 
 
 1. Rape. 
 
 By 24 Ss 25 Vict. c. 100, s. 48, 
 " whosoever shall be convicted of 
 " the crime of rape shall be guilty 
 " of felony, and, being convicted 
 " thereof shall be liable, at the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for life, or for any 
 " term not less than five years (27 
 " & 28 Vict. c. 47), or to be impris- 
 " oned for any term not exceeding 
 '■ two years, with or without hard 
 " labour." 
 
 By s. 63, " whenever, upon the 
 " trial for any offence punishable 
 " under this act, it may be neces- 
 " sary to prove carnal knowledge, 
 " it shall not be necessary to prove 
 " the actual emission of seed in or- 
 " der to constitute a carnal kiiowl- 
 " edge, but the carnal knowledge 
 " shall be deemed complete upon 
 " proof of penetration only." {For- 
 mer provision, 9 Geo. 4, c. 31, s. 18.) 
 
 By 9 Geo. 4, c. 31, 3 Edw. 1, c. 
 13, 13 Edw. 1, c. 34, 6 Rich. 2, c. 
 6, and 18 Eliz. c. 7, were repealed; 
 and2i & 25 Vict.c. 95, repeals 9 Geo. 
 4, c. 31, ss. 16, 17, 18, and i & 5 
 Vict. c. 56, s. 3. 
 
 To constitute rape it is not neces- 
 sary that the connexion with the 
 woman should be had against her 
 will ; it is sufficient if it is without 
 her consent. Reff. v. Fletcher, Bell, 
 C. C. 63 ; 5 Jur., N. S. 179 ; 28 L. 
 J., M. C. 85 ; 7 W. R. 204 : 8 Cox, 
 C. C. 131. 
 
 Upon an indictment for rape, 
 there must be some evidence that 
 the act was without the consent of 
 the woman, even where she is an 
 idiot. In such a case, where there 
 were no appearances of force having 
 been used to the woman, and the 
 only evidence of the connexion was 
 
 Digitized by Microsoft® 
 
RAPE. 
 
 429 
 
 the prisoner's own admission, coup- 
 led with the statement that it was 
 done with her consent : — Held, that 
 there was no evidence for the jury. 
 Reg. V. Fletcher, 1 L. R., C. C". 39 ; 
 12 Jur., N. S. 505 ; 35 L. J., M. C. 
 172; 14 L. T., N. S. 573; 14 W. 
 R. 774. 
 
 Having carnal knowledge of a 
 married woman, under circumstan- 
 ces which induced her to suppose it 
 is her husband, does not amount to 
 a rape. Hex v. Jackson, R. & R. 
 C. C. 487. 
 
 If a man has connexion with a 
 woman, she consenting under the 
 belief that it is her husband, this is 
 not a rape, though it is a fraud on the 
 part of the man ; but it is an as- 
 sault ; and the fact that there was 
 no resistance on her part makes no 
 difference, as the fraud is sufficient 
 to make it an assault. Reg. v. 
 .WiUiams, 8 C. & P. 286— Alderson 
 and Gurney ; S. P., Reg. v. Saun- 
 ders, 8 C. & P. 265— .Gumey. 
 
 A. got into the bed of a married 
 woman, intending if he could to 
 have connection with her by pass- 
 ing for her husband, but not by 
 force. She supposing him to be her 
 husband allowed him to have con- 
 nexion -with her : — Held, that he 
 was not guilty of rape. Reg. v. 
 Clarke, Dears. G. C. 397 ; 24 L. J., 
 M. C. 25 ; 18 Jur. 1059 ; 3 C. L. 
 R. 86 ; 6 Cox, C. C. 412 ; S. P., 
 Reg. V. Sweenie, 8 Cox, C. C. 223. 
 
 If in a case of rape the jury is 
 satisfied that non-resistance on the 
 part of the prosecutrix proceeded 
 merely from her being overpowered 
 by actual force, or from her not be- 
 ing able, from want of strength, to 
 resist any longer, or that, from the 
 number of persons attacking her, 
 she considered resistance dangerous 
 and absolutely useless, the jury 
 ought to convict the prisoner of the 
 capital charge ; but if they think, 
 from the whole of the circumstances, 
 that although, when the prosecu- 
 trix was first laid hold of, it was 
 against her will, yet that she did not 
 
 resist afterwards, because she in 
 some degree consented to what was 
 afterwards done to her, they ought 
 to acquit the prisoners of tlie caji- 
 ital charg'e, and convict them of an 
 assault only. Reg. v. Hallett, 9 C. 
 & p. 748— Coleridge. 
 
 On an indictment for an assault 
 with intent to commit a rape, the 
 prosecutrix stated, that the defend- 
 ant, her medical man, being in her 
 bed-room, directed her to lean for- 
 ward on a bed, that he might apply 
 an injection ; she did so, and the 
 injection having been applied, she 
 found the defendant was proceed- 
 ing to have a connexion witli her, 
 upon which she instantly raised her- 
 self, and ran out of the room. She 
 stated that the defendant had pen- 
 etrated her person a little : — Held, 
 that, if it had appeared that the de- 
 fendant had intended to have had a 
 connexion with the prosecutrix by 
 force, the complete offence of rape 
 would, upon this evidence, have 
 been proved, but that the thus get- 
 ting possession of the person of the 
 woman by surprise, was not an as- 
 sault with intent to commit a rape, 
 but was an assault. Reg. v. Stan- 
 ton, 1 C. & K. 415— Coleridge. 
 
 On a trial fora rape, it was proved 
 that the prisoner made the prosecu- 
 trix drunk, and that when she was 
 in a state of insensibility he took ad- 
 vantage of it and violated her. The 
 jury convicted the prisoner, and 
 found that he gave her liquor for 
 the purpose of exciting her, and not 
 with the intention of rendering her 
 insensible, and then having sexual 
 intercourse with her : — Held, that 
 he was properly convicted of rape. 
 Reg. V. Oamplin, 1 C. & K. 746 ; 1 
 Den. C. C. 89. 
 
 The jury should be satisfied, not 
 merely that the act was in some de- 
 gree against the will of the woman, 
 but that she was, by physical vio- 
 lence or terror, fairly overcome, and 
 forced against her will, she resisting 
 as much as she could, and so as to 
 make the prisoner see and know 
 
 Digitized by Microsoft® 
 
430 
 
 RAPE, ABUSE AND DEFILEMENT. 
 
 that she was really resisting to the 
 utmost. Reg. v. Rudland, 4 F. & 
 F. 495 — Crompton. 
 
 The i-ule is, that the connexion 
 must be without the consent of the 
 person alleged to have been ravish- 
 ed. Reg. V. Jones, 4 L. T., N. S. 
 154 — Channell. 
 
 But where a father has establish- 
 ed a kind of reign of terror in his 
 family, and his daughter, under the 
 influence of dread and terror, re- 
 mains passive while he has connex- 
 ion with her, he may be found guil- 
 ty of rape. Ih. 
 
 If a surgeon, professing to take 
 steps to cure a girl of a complaint, 
 has carnal connexion with her, and 
 she is ignorant of the nature of his 
 act, and makes no resistance, solely 
 from a bona fide belief that he is, as 
 he represents, treating her medical- 
 ly, with a view to her cure, his con- 
 duct in point of law amounts to an 
 assault. Reg. v. Case, 19 L. J., M. 
 C. 174; 1 Den. C. C. 580 ; 4 Cox, 
 C. C. 220. 
 
 To constitute a rape on a woman 
 conscious and capable of giving con- 
 sent at the time of connexion, there 
 must be an actual resistance of the 
 will. Non-resistance to connexion, 
 permitted under a misapprehension 
 induced by the conduct of the man, 
 by a woman conscious and capable 
 of consenting, amounts to consent, 
 though unintentional, and prevents 
 the offence amounting to a rape. 
 Reg. V. Barrow, 38 L. J., M. C. 20; 
 1 L. R., C. 0. 156 ; 17 W. R. 102 ; 
 19 L. T., N. S. 293 ; 11 Cox, C. C. 
 191. 
 
 A woman, with her baby in her 
 arms, was lying in bed between 
 sleeping- and waking, and her hus- 
 band was asleep beside her. She 
 was completely awakened by a man 
 Iiaving connexion with her, and 
 pushing the baby aside. Almost 
 directly she was completely awak- 
 ened she found that the man was 
 not her husband, and awoke her 
 husband : — ^Held, that a conviction 
 
 for a rape upon these facts could 
 not be sustained. lb. 
 
 The prisoner was convicted of a 
 rape upon the prosecutrix, who was 
 an apparent idiot. She proved the 
 act done, and said that it was 
 wrong, but that she said nothing to 
 the prisoner, and that she did not do 
 anything to him, and that she did 
 not like to hurt nobody. The con- 
 stable told the prisoner that he was 
 charged with committing a rape 
 upon the prosecutrix and against 
 her will. The prisoner, in answer 
 to that, said, " Yes, I did ; and I'm 
 very sorry for it " : — Held, that 
 there was evidence to sustain the 
 conviction. Reg. v. Pressy, 17 L. 
 T., N. S. 295; 16 W. R. 142; 10 
 Cox, C.C.635— C. C. R. 
 
 On a charge of rape, there having 
 been to some extent assent, and it 
 being doubtful whether the act had 
 been completed, it is necessary that 
 the jury should be satisfied, before 
 convicting either of a rape or of an 
 assault, with intent to commit a rape, 
 that the prisoner intended, notwith- 
 standing any resistance, on the part 
 of the woman. Reg. v. Wright, 4 
 F. & F. 967— Channell. 
 
 On her cross-examination she can- 
 not be contradicted from the de- 
 positions unless they are put in. Ih. 
 
 (a) TFAo Capable of Committing. 
 
 A boy under fourteen cannot be 
 convicted of an assault with intent 
 to commit a rape. Rex v. Elder- 
 shaw, 3 C. & P. 396 — ^Vaughan. 
 
 And if he is under that age, no 
 evidence is admissible to shew that, 
 in point of fact, he could commit 
 the ofience of rape. Reg. v. Phil- 
 lips, 8 C. & P. 736— Patteson ; S. 
 P., Reg. V. Jordan, 9 C. & P. 118— 
 Williams. 
 
 (b) Upon whom Committed. 
 The prisoner had carnal knowl- 
 edge of a girl of thirteen by force. 
 She was incapable of giving consent 
 from defect of understanding, and 
 
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RAPE. 
 
 431 
 
 it was not shewn that the act was 
 done against her will : — Held, that 
 he was properly convicted of rape. 
 Reg. V. Fletcher, Bell, C. C. 63 ; 28 
 L. J., M. C. 85 ; 8 Cox, C. C. 131. 
 
 But the mere fact of connexion 
 with an idiot girl capable of recog- 
 nizing and describing the prisoner, 
 but incapable, so far as her idiotcy 
 rendered her so, of expressing dis- 
 sent or consent, and therefore with- 
 out her consent, is not sufficient evi- 
 dence of the commission of a rape 
 upon her to be left to a jury. Reg. 
 V. Fletcher, 35 L. J., M. 0. 172 ; 1 
 L. R. C. C. 39 ; 12 Jur.,N. S. 505 ; 
 14 L. T., N. S. 573; 14 W. R. 774. 
 
 Though a child under ten years of 
 cannot legally consent to a rape upon 
 her, yet she may consent to the at- 
 tempt to commit it ; and such an 
 attempt, with her consent, would 
 not be an assault. Where, there- 
 fore, a child is too young to know 
 the nature of an oath, her evidence 
 as to a rape upon her cannot be tak- 
 en, and marks of violence on her 
 private parts cannot be presumed 
 to have been done against her con- 
 sent. Reg. V. Gockbum, 3 Cox, C. 
 C. 543— Patteson. 
 
 (c) Accomplishment or Completion. 
 
 Any the slightest penetration is 
 sufficient, even though it does not 
 break the hymen. Rex v. Russen, 
 1 East, P. C. 438. 
 
 Penetration, short of rupturing 
 the hymen, is sufficient to constitute 
 the crime of rape. Reg. v. Hughes, 
 2M. C. C. 190; 9C. &P. 752. 
 
 Though it is not necessary, in or- 
 der to complete the oifence of rape, 
 that the hymen should be ruptured, 
 provided that it is clearly proved 
 that there was penetration; yet 
 where that which is so very near to 
 the entrance has not been ruptured, 
 it is very difficult to come to the 
 conclusion that there has been pen- 
 etration so as to sustain the charge. 
 Reg. V. M'Rue, 8 C. & P. 641— 
 Bosanquet. 
 
 Since 9 Geo. 4,c. 31, the offenBe of 
 
 rape is made out by proof of penetra- 
 tion only and in such case a prisoner 
 must be found guilty, although there 
 was no emission, and although he did 
 not withdraw himself merely be- 
 cause he was satisfied. Rex v. Jen- 
 nings, 4 C. & P. 249 ; 1 Lewin, C. 
 C. 93— Hullock ; 8.P.,RexY. Reek- 
 spear, 1 M. C. C. 342. 
 
 To constitute penetration on a 
 charge of this offence, the parts of 
 the male must be inserted in those 
 of the female ; but, as matter of law, 
 it is not essential that the hymen 
 should be ruptured. Reg. v. Jordan, 
 9 C. & P. 118— WiUiams. 
 
 Since 9 Geo. 4, c. 31, s. 18, the 
 only question for the jury is, wheth- 
 er the private parts of the man did 
 or not enter into the person of the 
 woman. Therefore, though it ap- 
 pears from the evidence, beyond all 
 possibility of doubt, that the party 
 was disturbed immediately after 
 penetration, and before the comple- 
 tion of his purpose, yet he must be 
 found guilty of having committed 
 the complete offence of rape. Reg. 
 V. Allen, 9 C. & P. 31— Tindal. 
 
 In order to convict on a charge 
 of assault with intent to commit, 
 a rape, the jury must be satisfied not 
 only that the prisoner intended to 
 gratify his passions on the person of 
 the prosecutrix, but that he intend- 
 ed to do so at all events, and not- 
 withstanding any resistance on her 
 part. Rex v. Lloyd, 7 C. & P. 318 
 — Patteson. 
 
 Proof of injectio seminis, as well 
 as penetration, was essential in an 
 indictment for rape, before 9 Geo. 
 4, c. 31. Rex V. Hill, 1 East, P. C. 
 439 ; S, P., Rex v. Gave, 1 East, 
 P. C. 438 ; Rex v. Burrows, R. & 
 R. C. C. 619 ; Rex v. Oozins, 6 C. 
 & P. 351— Park. 
 
 (d) Indictment. 
 
 By 14 & 15 Vict. c. 100, s. 9, 
 " upon an indictment for a rape a 
 " prisoner may be convicted of an 
 " attempt to commit the same, and 
 " will be liable to the same conse- 
 
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432 
 
 RAPE, ABUSE AND DEFILElilENT. 
 
 " quenoes as if charged and convict- 
 " ed of the attempt." 
 
 An indictment need not contain 
 an express allegation of an assault. 
 Reg. V. Alkn, 2 M. C. C. 179 ; 9 C. 
 & P. 521. 
 
 A. was convicted on an indict- 
 ment, which charged that he " in 
 and upon E. P.," " feloniously and 
 violently did make (omitting the 
 words ' an assault,')" and her, then 
 and there, and against her will, vi- 
 olently and feloniously did ravish 
 and carnally know: — ^Held, that 
 the omission of the words, " an as- 
 sault," was no ground for arresting 
 the judgment. lb. 
 
 An indictment is good which 
 charges that A. committed a rape, 
 and that B. was present, aiding and 
 assisting him in the commission of 
 the felony. Reg. v. Orisham, Car. 
 & M. 187— Rolfe. 
 
 In such a case the party aiding 
 may be charged either, as he was 
 in law, a principal in the first de- 
 gree, or as he was in fact, a princi- 
 pal in the second degree. Ih. 
 
 On an indictment charging a 
 misdemeanor for an assault in at- 
 tempting to commit a rape on A. 
 B., with a count for an assault of 
 the same nature on a different day 
 on C. D., it is competent to the pros- 
 ecutor, not only in law, but by or- 
 dinary practice, to give evidence of 
 both assaults. Reg. v. Davies, 5 
 Cox, C. C. 328. 
 
 After an acquittal upon an in- 
 dictment for rape, and for an as- 
 sault with intent to commit a rape, 
 the prisoner may be indicted for a 
 common assault, upon which the 
 prosecutrix can only in chief be ask- 
 ed so much as to elicit what would 
 amount to a common assavilt ; but 
 the prisoner's counsel may, on cross- 
 examination, enter into the original 
 charge. Reg. v. Dungey, 4 F. & F. 
 99_Willes. 
 
 A count charging A. with a rape 
 as a principal in the first degi-ee, 
 and B. as a principal in the second 
 degree, may be joined with another 
 
 count, charging B. as principal in 
 the first degree, and A. as principal 
 in the second degree. Rex v. Gray, 
 7 C. & P. 164— Coleridge. 
 
 A general conviction of a prison- 
 er charged both as principal in the 
 first degree, and as an aider and 
 abettor of other men in rape, is val- 
 id on the count charging him as 
 principal. Rex v. Folkes, 1 M. C. 
 C. 354. 
 
 On an indictment for rape charg- 
 ing the prisoner both as principal 
 in the first degree, and as an aider 
 and an abettor of other men in the 
 rape, evidence may be given of sev- 
 eral rapes on the same woman, at 
 the same time, by the prisoner and 
 other men, each assisting the other 
 in turn, without putting the prose- 
 cutrix to elect on which count to 
 proceed. Ih. 
 
 A first count charged an assault 
 with intent to ravish ; the second, a 
 common assault. The record went 
 on to state, that the jury found 
 the defendant guilty of the misde- 
 meanor and offence in the indict- 
 ment specified, in manner and form 
 as by the indictment is alleged 
 against him, and the judgment was, 
 imprisonment and hard labour : — 
 Held, that the word" misdemeanor" 
 was nomen collectivum, and that 
 the finding of the jury was in effect, 
 that the defendant was guilty of the 
 whole matter charged, and that the 
 judgment was therefore warranted 
 by the verdict. Rex v. Powell, 2 B. 
 & Ad. 75. 
 
 Before 14 & 15 Vict. c. 100, s. 
 12, a defendant would be acquitted 
 on an indictment for an assault with 
 intent to ravish, if the evidence 
 amounted to proof of an actual rape. 
 Rex V. Harmwood, 1 East, P. C. 411. 
 
 (e) Evidence. 
 Of JProsecutrix.] — -A prisoner may 
 be convicted of rape upon the un- 
 supported evidence of an infant un- 
 der years of discretion, if the jury 
 is satisfied that the evidence is such 
 as to leave no reasonable doubt of 
 
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RAPE. 
 
 433 
 
 his guilt. Anon.. 
 932— Rooke. 
 
 1 Russ. C. & M. 
 
 Of Complaints.] — ^The particulars 
 of the complaint made by a female 
 on whom a rape has been commit- 
 ted are not receivable in evidence, 
 nor even her statement as to the 
 place of the commission of the crime ; 
 all that can be asked on examina- 
 tion in chief being the fact of her 
 having made such complaint, and 
 the nature of it. Meg. v. Mercer, 6 
 Jur. 243 — Gurney. 
 
 On the trial of an indictment for a 
 rape, it appeared that the person al- 
 leged to have been ravished but 
 who was since dead, had come home 
 evidently suffering from recent vio- 
 lence ; it was proved, that on her 
 return home she made a statement 
 as to the injury she had received, 
 and named the persons who had 
 committed it : — Held, that the par- 
 ticulars of this statement could not 
 be given in evidence as independent 
 evidence, to shew who were the per- 
 sons who committed the offence ; 
 and that statements of this kind 
 were only admissible to confirm the 
 evidence of the prosecutrix, by shew- 
 ing that she made a recent com- 
 plaint of the injury she had received. 
 Beff. V. Meffson, 9 C. & P. 420— 
 Rolfe. 
 
 Where the deposition of the pros- 
 ecutrix taken before the magistrate 
 was not proved, and she was not at 
 the trial, evidence of complaints 
 made by her recently after the out- 
 rage was rejected ; no such evidence 
 is receivable as confirmatory evi- 
 dence only. Heg. v. GhUtridges, 9 
 C. & P. 471— Parke. 
 
 A person to whom the prosecu- 
 trix made a complaint very recent- 
 ly after the offence, as she was on 
 her way home, may be asked wheth- 
 er she named a person as having 
 committed the offence, but not 
 whose name she mentioned. Reg. 
 V. Osborne, Car. & M. 622— Cress- 
 well. 
 
 Fish. Dig.— 32. 
 
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 The fact of the prosecutrix mak- 
 ing complaint of the outrage, and 
 the state in which she was at the 
 time of making the complaint, are 
 evidence. Rex v. Clarke, 2 Stark. 
 241— Holroyd. 
 
 On a trial for a rape, or for an at- 
 tempt to commit a rape, the female 
 assaulted may be confirmed by proof 
 that she recently, after the alleged 
 outrage, made a complaint, but the 
 particulars of what she said cannot 
 be asked in chief of the confirming 
 witness, but may in cross-examina- 
 tion. Reg. V. Walker, 2 M. & Rob.. 
 212— Parke. 
 
 Not Only ■(vhat the prosecutrix 
 said immediately after the occasion, 
 but what was said in answer to her, 
 is evidence. Reg. v. Eyre, 2 F. & 
 F. 579— Byles. 
 
 On a trial for a rape, the prosecu- 
 trix, a servant, stated that she made 
 almost immediate complaint to her 
 mistress, and that on the next day a 
 washerwoman washed her clothes, 
 on which was blood. Neither the 
 mistress nor the washerwoman was 
 under recognizances to give evidence, 
 nor were their names on the back 
 of the indictment, but they were at the 
 assizes attending as witnesses for the 
 prisoner. The judge directed that 
 both the mistress and the washer- 
 woman should be called by the 
 counsel for the prosecution, but al- 
 lowed the counsel for the prosecu- 
 tion every latitude in their examina- 
 tion. Reg. V. Stroner, 1' C. & K. 
 650— Pollock. 
 
 To Impeach Character of Prose- 
 cutrix.] — On the trial of an indict- 
 ment for rape, the prosecutrix may 
 be asked whether, previously to the 
 commission of the alleged offence, 
 the prisoner had not had intercourse 
 with her by her- own consent. Rex 
 V. Martin, 6 C. & P. 562— Wil- 
 liams. 
 
 Under an indictment for an as- 
 sault to commit a rape, the defend- 
 ant may impeach the prosecutrix's 
 
434 
 
 RAPE, ABUSE AND DEFILEMENT. 
 
 character for chastity by general, 
 but not by particular evidence. Reg. 
 V. GUrhe, 2 Stark. 241— Holroyd. 
 
 But the character of the prosecu- 
 trix as to general chastity may be 
 impeached by general evidence. Ih. 
 
 The prisoner may give evidence 
 that the woman bore a notoriously 
 bad character for want of chastity 
 and common decency, or that she 
 had before been criminally connect- 
 ed with the prisoner ; but he can- 
 not shew that she had a criminal 
 connexion with other persons. Rex 
 V. Hodgson, R. & R. C. C. 211— 
 Gurney. 
 
 Nor is the woman . obliged to an- 
 swer as to the latter fact. Ih. 
 
 On the trial of an indictment for 
 a rape, held, that the prisoner's 
 counsel might ask the prosecutrix 
 the following questions, with a view 
 to contradict her : " Were you not 
 on , (since the time of the al- 
 leged offence), walking in the High- 
 street at Oxford to look out for 
 
 men ?" " Were you not, on , 
 
 (since the time of the alleged of- 
 fence), walldng in the High-street 
 with a woman reported to be a com- 
 mon prostitute ? " Rex v. Barker, 
 3 C. & P. 589— Park and Parke. 
 
 Held, also, that evidence might 
 be adduced by the prisoner to shew 
 the general light character of the 
 prosecutrix, and that general evi- 
 dence might be given of her being 
 a street- walker. lb. 
 
 The prosecutrix may be asked, 
 on cross-examination, whether she 
 had not allowed another man than 
 the prisoner to take liberties with 
 her, in the interval between the com- 
 mission of the alleged offence and 
 the first complaint of it. Reg. v 
 Mercer, 6 Jur. 243 — Gurney. 
 
 A prosecutrix, on a charge of 
 rape, having, on cross-examination, 
 said that she had herself been charg- 
 ed with stealing money, and on 
 that occasion had accounted to a 
 police constable for the possession 
 of the money by stating that it was 
 given her for not complaining of a 
 
 person who had insulted her by so- 
 licitations against her chastity, but 
 denied that she had said the mon- 
 ey was given her for having con- 
 nexion with him : — Held, that the 
 prisoner could not call the consta- 
 ble as a witness to contradict the 
 prosecutrix, by proving that she had 
 said that the money was given her 
 for that purpose. Reg. v. Dean, 6 
 Cox, C. C. 23— Piatt. 
 
 But the prosecutrix having, on 
 cross-examination, denied that she 
 had connexion with other men 
 than the prisoner, those men may 
 be called to contradict her. Reg. 
 V. RoUns, 2 M. & Rob. 512— Col- 
 eridge. 
 
 It appeared that the prisoner had 
 been taken before the mayor of N., 
 charged with rape ; and that the 
 prosecutrix was sworn, and her 
 statement taken down by the may- 
 or, who asked her some further ques- 
 tions, the answers to which were 
 taken down, and the prisoner was 
 discharged. That which was taken 
 down by the mayor was not read 
 over to the prosecutrix, neither was 
 it signed by her or by the mayor. 
 The prisoner was afterwards com- 
 mitted for trial by other magistrates : 
 — Held, that at the trial the prison- 
 er's counsel might cross-examine 
 the prosecutrix as to what she said 
 before the mayor of N., without the 
 production of that which was taken 
 down on that examination. Reg. 
 v. Griffiths, 9 C. & P. 746— Coler- 
 idge. 
 
 On a trial for rape, evidence of 
 the general character of the prose- 
 cutrix, as that she had- been a re- 
 puted prostitute, is admissible. 
 Reg: V. Clay, 5 Cox, C. C. 146. 
 
 Proof of Subsequent Acts.] — On 
 an indictment for rape on a child 
 under ten, Evidence was admitted 
 of subsequent perpetrations of the 
 same offence on different days pre- 
 viously to complaint to the mother, 
 it appearing that the prisoner had 
 threatened the child on the first 
 
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ABUSE OF CHILDRElsr. 
 
 435 
 
 occasion :— Held, that, virtually, it 
 was in such a case all one continu- 
 ous offence. Meg. v. Bearden, 4 F. 
 & F. 76— Willes. 
 
 On an indictment for. an assault 
 with an intent to commit a rape, 
 evidence that the prisoner on a prior 
 occasion had taken liberties with the 
 prosecutrix, is not receivable to 
 shew the prisoner's intent. Rex v. 
 Lhyd, 7 C. & P. 318— Patteson. 
 
 Proof of Age.] — Family discus- 
 sion as to birth-day, and acts done 
 on the reputed day, are evidence 
 for the jury as to the age of an in- 
 fant prosecutrix, on whom a rape is 
 charged to have been committed. 
 Beg. V. miyes, 2 Cox, C. C. 226— 
 Coltman. 
 
 Identity of Accused.'] — In a case of 
 rape against five, the prosecutrix, 
 when before the grand jury, did not 
 know the names of the different 
 prisoners, but could identify the 
 persons : — Held, that the grand jury 
 might call in another witness, who 
 was before the examining magistrate, 
 and there saw the prisoners, and let 
 the prosecutrix describe the differ- 
 ent prisoners, and the other witness- 
 es give their names ; and that, if the 
 prisoners could not be identified by 
 this mode, they might be brought 
 before the grand jury. Beg. v. 
 Jenkins, 1 C. & K. 536— Tindal. 
 
 Depositions.] — If it is proved on 
 the part of the prosecutrix that the 
 party alleged to have been ravished 
 has been kept out of the way by the 
 prisoners, the judge will allow her 
 deposition before the magistrate to 
 be given in evidence. Beg. v. Gut- 
 tridges, 9 C. & P. 471— Parke. 
 
 In an indictment for a rape, the 
 deposition of a girl taken before the 
 committing magistrate, and signed 
 by him, may, after her death, be 
 read in evidence at the trial of 
 the prisoner, although it was not 
 signed by her, and she was under 
 twelve years of age, proyided she 
 
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 was sworn, and appeared competent 
 to take an oath ; and all the facts 
 necessary to complete the crime may 
 be collected from her testimony so 
 given in evidence. Bex v. Flem- 
 ming, 2 Leach, C. C. 854 : 1 East, 
 P. C. 440. 
 
 (f ) Where Triable. 
 By 4 & 5 Vict. c. 56, s. 6, " the 
 " crime of rape shall not be tried, or 
 " triable, before any justice of the 
 " peace at any general quarter ses- 
 " sions of the peace." 
 
 2. Abuse of Children. 
 
 The Offence.']— By 24 & 25 Vict, 
 c. 100, s. 50, " whosoever shall un- 
 " lawfully and carnally know and 
 " abuse any girl under the age of 
 " ten years shall be guilty of felony, 
 " and, being convicted thereof, shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for Ufe, or for any term not 
 " less than five years (27 & 28 Vict. 
 " c. 47), or to be imprisoned for 
 " any term not exceeding two years, 
 " with or without hard labour." 
 {Previous provision, 9 Geo. 4, c. 31, 
 s. 17.) 
 
 By s. 51, "whosoever shall un- 
 " lawfully and carnally know and 
 " abuse any girl being above the 
 " age of ten years and under the 
 " age of twelve years shall be guilty 
 " of a misdemeanor, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for the 
 " term of five years (27 & 28 Vict. 
 " c. 47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour." 
 (Previous provision, 9 Geo. 4, c. 31, 
 s. 17.) 
 
 By s. 52, " whosoever shall be 
 " convicted of any indecent assault 
 " upon any female, or of any at- 
 " tempt to have carnal knowledge 
 " of any girl under twelve years ot 
 " age, shall be hable, at the discre- 
 " tion of the court, to be imprisoned 
 "for anj^term not exceeding two 
 
436 
 
 RAPE, ABUSE AND DEFILEMENT. 
 
 "years, with or without hard la- 
 " hour." 
 
 If, on the trial of an indictment 
 for carnally knowing and abusing a 
 female child under ten, the jury is 
 satisfied that, at any time, any part 
 of the virile member of the prisoner 
 was within the labia of the pudenda, 
 no matter how little, this is suffi- 
 cient to constitute a penetration, 
 and the jury oug])t to convict. Reg. 
 V. Lines, 1 C. & K. 393— Parke. 
 
 Attempting to carnally know and 
 abuse a girl between the ages of ten 
 and twelve is not an assault, if the 
 girl consents to all that is done, but 
 is a misdemeanor. Jieff. v. Martin, 
 9 C. &P. 213; 2M. C. C. 123. 
 
 The person making such attempt, 
 with the consent of the girl, is not 
 indictable for an assault, but is in- 
 dictable for the misdemeanor of at- 
 tempting to commit the misdemean- 
 or of carnally knowing and abusing 
 her. lb. 
 
 An indecent assault committed 
 upon a girl between the age of ten 
 and twelve, with her consent is not 
 indictable. Heg. v. Johnson, L. & 
 C. 632; 10 Cox, C. C. 114; 11 
 Jur., N. S. 532 ; 34 L. J., M. C. 
 192; 13 W. R.815 ; 12 L. T., N. 
 ^S. 503. 
 
 But on an indictment for attempt- 
 ing to have carnal knowledge of a 
 girl under ten years, being a misde- 
 meanor, consent by the girl is no de- 
 fence and is immaterial, lieg. v. 
 Beale, 35 L. J., M. C. 60 ; 14 W. 
 R. 67 : 13 L. T., N. S. 335 ; 10 
 Cox, C. C. 157 ; 1 L. R., C. C. 10 ; 
 12 Jur., N. S. 12. 
 
 On an indictment for attempting 
 to carnally know and abuse a girl 
 under ten, with a count for a com- 
 mon assault. The attempt was 
 proved, but it could not be shewn 
 that the child was under ten years 
 of age, and it also appeared that no 
 violence was used by the prisoner, 
 and no actual resistance made by 
 the girl :-^Held, that although con- 
 sent on the part of the girl would 
 
 put an end to the charge of assault, 
 yet that there was a great difference 
 between consent and submission, 
 and that, although, in the case of 
 an adult, submitting quietly to an 
 outrage of this kind would go far 
 to shew consent, yet that, in the 
 case of a child, the jury should con- 
 sider whether the submission of the 
 child was voluntary on her part, or 
 was the result of fear under the cir- 
 cumstances in which she was placed. 
 Reg. V. Day, 9 C. & P. 722— Col- 
 eridge. 
 
 If, on the trial of an indictment 
 for a misdemeanor in carnally know- 
 ing and abusing a girl between the 
 age of ten and twelve, it appears 
 that the prisoner effected his pur- 
 pose by force, and against the girl's 
 will, this is no ground of acquittal. 
 Reg. V. Male, 1 C. & K. 691 ; 1 
 Den. C. C. 36. 
 
 On an indictment for carnally 
 knowing and abusing a girl under 
 ten, the prisoner may be acquitted 
 of the felony, and convicted of an 
 assault. Reg. v. Folhes, 2 M. & Rob. 
 460— Rolfe. 
 
 An assault is within the rule that 
 fraud vitiates consent, and therefore 
 when a man, knowing that he had 
 a foul disease, induced a girl of thir- 
 teen, who was ignorant of his con- 
 dition, to consent to sleep with him, 
 and he infected her : — Held, that he 
 might be convicted of an indecent 
 assault. Reg. v. Bennet, 4 P. & F. 
 1105— Willes. 
 
 Under an indictment for unlaw- 
 fully assaulting and having carnal 
 knowledge of a girl between ten 
 and twelve years of age, the prison- 
 er may be convicted of the attempt 
 to commit that offence. Reg. v. 
 Ryland, 18 L. T., N". S. 538 ; 16 W. 
 R. 941 ; 11 Cox, C. C. 101— 0. C. 
 R. 
 
 Who capabh of Gommitting.] — A 
 boy under fourteen cannot, by law, 
 be convicted of feloniously carnally 
 knowing and abusing a girl under 
 ten, even though it was proved that 
 
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ABUSE OF CHILDREN. 
 
 437 
 
 he had arrived at the full state of 
 puherty. Beg. v. Jordan, 9 C. & 
 P. 118— Williams. 
 
 Three boys, under fourteen years 
 of age, were indicted for assaulting 
 a girl nine years of age. It was 
 proved that each of the boys had 
 connexion with her. The jury re- 
 turned as their verdict, " that the 
 prisoners were guilty, the child 
 being an assenting party ; but that 
 from her tender years she did not 
 know what she was about ": — Held, 
 upon this finding, a verdict of ac- 
 quittal must be entered. Iteg. v. 
 Mead, 19 L. J., M. C. 88 ; 2 C. & 
 K. 957 ; 1 Den. C. C. 377 ; 3 Cox, 
 C. C. 266. 
 
 A schoolmaster, who places his 
 hands indecently on the person of a 
 female pupil, is guilty of an inde- 
 cent assault, although the pupil is 
 thirteen years of age, and does not 
 make any actual resistance. Meg. 
 v. M'Gavaran, 6 Cox, C. C. 64— 
 Williams. 
 
 Letters relating to the charge 
 , written by one of the scholars who 
 is examined as a witness for the 
 prosecution, may, on her denial of 
 the handwriting, be proved and 
 given in evidence on the part of the 
 defendant for the purpose of alfect- 
 ing the witness's credit, and shewing 
 the capacity of the scholars to con- 
 spire to make a false charge against 
 him, although the prosecutrix is not 
 proved to have received the letters, 
 or had any knowledge of their con- 
 tents. Ih. 
 
 Indictment. 1 — An indictment in 
 the first count charged the defend- 
 ant with having assaulted " E. R., 
 an infant above the age of ten and 
 under the age of twelve," with in- 
 tent to carnally know and abuse 
 her ; and in the second count charg- 
 ed that the defendant " unlawfully 
 did put and place the private parts 
 of him, the said T. M., against the 
 private parts of her, the said E. R., 
 and did thereby then and there un- 
 lawfully attempt ^-^ Sll^^eTb}'^PAft® 
 
 carnally know and abuse the saidE. 
 R." : — Held, that the second count 
 was bad, as it did not allege that E. 
 R. was between the ages of ten and 
 twelve. Meg. v. Martin, 9 C. & P. 
 215— Patteson. 
 
 Held, also, that the words " the 
 said E. R." merely meant that she 
 was the same person as was men- 
 tioned in the first count, but that 
 those words did not import into the 
 second count the description of E. 
 R. with respect to her age. Tb. 
 
 A prisoner was indicted for the 
 misdemeanor of carnally knowing a 
 girl between the age of ten and 
 twelve. . The case was proved, but 
 the girl was under ten : — Held, that 
 he must be acquitted, and the 1 4 & 
 15 Vict. c. 100, s. 12, did not apply. 
 Meg. V. Shott, 3 C. & K. 206— 
 Maule. 
 
 A count in an indictment charge 
 ing that a defendant did attempt to 
 assault a girl by soliciting and in- 
 ducing her to place herself in an in- 
 decent attitude, he doing the like, is 
 bad. Mex v. Butler, 6 C. & P. 368 
 — Patteson. 
 
 Where an indictment charged 
 the defendant with an assault and 
 an intent to abuse and carnally know 
 a female child : — Held, that he 
 might be convicted of an assault to 
 abuse her simply, as the averment of 
 such intention is divisible. Mex v. 
 Dawson, 3 Stark. 62 — Holroyd. 
 
 On an indictment for an assault, 
 &o., if penetration is proved, the 
 prisoner cannot be convicted of the 
 attempt. Meg. v. NichoUs, 2 Cox, 
 C. C. 182— Rolfe. 
 
 An indictment (whether for 
 the felony or for an attempt 
 to commit it), founded on 24 &, 
 25 Vict. c. 100, s. 50, which 
 makes it a felony to " carnally know 
 and abuse any girl under the age of 
 ten years," is sufiicient if it uses the 
 words " carnally know " only, and 
 omits the word " abuse. " Meg. v. 
 Holland,!^!,. T., N. S. 536; 15 
 W. R. 879 ; 10 Cox, C. C. 478— C. 
 C.R. 
 
438 
 
 RIOTS. 
 
 Evidence.] — In cases of carnal 
 knowledge of children, the infant 
 witness, though under seven years 
 of age, if apprised of the nature of an 
 oath, must be sworn. Rex v. Bra- 
 sier, 1 Leach, C. C. 199 ; 1 East, P. 
 C. 443. 
 
 In a case of carnally knowing 
 and abusing a girl under ten years 
 old, it appeared, on an application 
 on the part of the prosecution to 
 postpone the trial, that the girl was 
 only six years old, and, by reason 
 of her age, quite incompetent to 
 take an oath ; — Held, that the trial 
 ought not to be postponed in order 
 that the child might be instructed 
 as to the nature of an oath ; but 
 that there might be cases of chil- 
 dren of more matured intellect, e. g. 
 of ten or twelve years old who 
 might be from neglected education 
 incapable of being sworn, in which 
 such a postponement might be prop- 
 er. Reg. V. Nioholas, 2 C. & K. 
 246— Pollock ; S. P., Rex v. Wil- 
 liams, 7 C. & P. 320. 
 
 Where in such a case the child, 
 from her tender age, was incompe- 
 tent to be sworn, the judge would 
 not receive evidence of what the 
 child stated to her mother shortly 
 after the alleged offence took place, 
 nor allow the mother to prove that 
 the child mentioned to her the name 
 of any particular person. lb. 
 
 A prisoner was charged with car- 
 nally abusing a child under ten, on 
 February 5, 1832. To prove the 
 child under ten years, an examined 
 copy of the register of her baptism 
 on February 9, 1822, was put in, 
 and her father stated, that he left 
 his house about a week before the 
 9th of February, 1822, his wife not 
 being then confined ; and that on 
 his return on that day he found this 
 child, and was told by his wife's 
 mother that it had been born on the 
 day before : — Held, that this was 
 not sufficient evidence of the child's 
 being under ten years. Rex v. 
 Wedge, 5 C. & P. 298— Littledale 
 and Taunton. 
 
 A mother stated that a child 
 was ten years old last March, 
 but on cross-examination her evi- 
 dence as to the knowledge of her 
 children's ages seemed by no means 
 clear. The evidence, though ob- 
 jected to as too unsatisfactory to 
 leave to the jury on a charge of 
 carnally knowing and abusing a 
 girl under the age of twelve, was 
 submitted to the jury, who found 
 that the girl was under twelve, and 
 convicted the prisoner of the charge : 
 — Held, that the conviction must 
 be affirmed. Reg. v. Nicholls, 10 
 Cox, C. C. 476; 16 L. T., N. S. 
 466; 15 W. R. 795— C. C. R. 
 
 3. Defilement. 
 
 By 24 & 25 Vict. c. 100, s. 49, 
 " whosoever shall, by false pre- 
 " tences, false representations or 
 " other fraudulent means, procure 
 " any woman or girl under the age 
 " of twenty-one years to have illicit 
 " carnal connexion with any man, 
 " shall be guilty of a misdemeanor, 
 " and, being convicted thereof, shaU 
 " be liable, at the discretion of the 
 " court, to be imprisoned for any 
 " term not exceeding two years, with 
 " or without hard labour." (Simi- 
 lar to 12 & 13 Vict. c. 76, Rishop 
 of Oxford's Act (S. Wilberforce), 
 repealed by 24 & 25 Vict. c. 95.) 
 
 A conspiracy to procure by false 
 pretences, false representations and 
 other fraudulent means, a young 
 girl to have illicit carnal connexion 
 mth a man, is a misdemeanor at 
 common law. Reff. v. Mears, 2 
 Den. C. C. 79 ; 20 L. J., M. C. 59. 
 
 SXXII. Riots and UNLAWi'trL 
 Assemblies. 
 
 1. Nature and Character, 439. 
 
 2. Illegal Training and Drilling, HO. 
 
 3. Duties of the Magistraci/, 440. 
 
 4. Aiding and Assisting the Consta- 
 
 bulary, 441. 
 
 5. Indictment, 441. 
 
 6. Eoidence, 442. . [442. 
 
 7. Injuries to Property by Rioters, 
 
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NATURE AND CHARACTER. 
 
 439 
 
 1. Nature and Character . 
 
 (1 Geo. 1, Stat. 2, c. 5 ; 7 Will 4^1 
 Vict.c. 91; 3 Geo.4:,c. lU.) 
 
 If, in reading the proclamation 
 from the Riot Act, the magistrate 
 omits to read the words " God save 
 the King " at the end of it, persons 
 remaining together for an hour af- 
 ter such reading of the proclama- 
 tion could not he capitally convict- 
 ed under 1 Geo. 1, stat. 2, c. 5, s. 1. 
 Hex V. Child, 4 C. & P. 442— 
 Vaughan and Alderson. 
 
 If the proclamation is read sev- 
 eral times, the hour is to be com- 
 puted from the first reading. Hex 
 V. Woolcock, 5 C. & P. 516— Patte- 
 son. 
 
 If there is .such an assembly that 
 there would have been a riot if the 
 parties had carried their purpose in- 
 to effect, this is within the statute ; 
 and whether there was a cessation 
 or not, is a question for the jury. 
 
 All those who assemble them- 
 selves together with an intent even 
 to commit a trespass, the execvition 
 whereof causes a felony to be com- 
 mitted, and continue together abet- 
 ting one another till they have act- 
 ually put their design into execution, 
 and also all those who are present 
 when a felony is committed, and 
 abet the doing of it, are principals 
 in the felony. Heff. v. Howell, 9 C. 
 &, P. 437— Littledale. 
 
 Any meeting assembled under 
 such circumstances as, according to 
 the opinion of rational and firm 
 men, are likely to produce danger 
 to the tranquillity and peace of the 
 neighborhood, is an unlawful as- 
 sembly ; and, in viewing this ques- 
 tion, the jury should take into their 
 consideration the hour at which the 
 parties meet, and the language used 
 by the persons assembled, and by 
 those who addressed them, and then 
 consider whether firm and rational 
 men, having their families and prop- 
 erty there, would have reasonable, 
 ground to fear a breach of the 
 
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 peace ; as the alarm must not be 
 merely such as would frighten any 
 foolish or timid person, but must be 
 such as would alarm persons of rea- 
 sonable firmness and courage. Reg. 
 V. Vincent,dG.&F. 91— Alderson. 
 
 An assembly of great numbers of 
 persons, which from its general ap- 
 pearance and accompanying circum- 
 stances, is calculated to excite ter- 
 ror, alarm and consternation, is 
 generally criminal and unlawful. 
 Jiex V. Hunt, 1 Russ. C. & M. 388 
 — Bayley and Holroyd. See Hex 
 V. Hunt, 3 B. & A. 566. 
 
 And all persons who join an as- 
 sembly of this kind, disregarding 
 its probable effect, and the alarm 
 and consternation that are likely to 
 ensue, and all who give countenance 
 and support to it, are criminal par- 
 ties, lb. 
 
 Any assembly of persons attended 
 with circumstances calculated to ex- 
 cite alarm, is an unlawful assembly. 
 Heff. V. Male, 9 C. & P. 431.— Lit- 
 tledale. 
 
 If parties assemble together for a 
 purpose, which, if executed, would 
 make them riotous ; but, having as- 
 sembled, they do nothing, and sep- 
 arate without carrying their purpose 
 into effect, this is an unlawful as- 
 sembly. Hex V. Mrt, 5 C. & P. 154 
 — Patteson. 
 
 A riot is not the less a riot, nor is 
 an illegal meeting the less an illegal 
 meeting, because the proclamation 
 from the riot act has not been read, 
 the efiect of that proclamation be- 
 ing to make the parties guilty of a 
 transportable ofience if they do not 
 disperse within an hour ; but if that 
 proclamation is not read, the com- 
 mon law offence remains, which is a 
 misdemeanor, and all magistrates, 
 constables, and even private indi- 
 viduals, are justified in dispersing 
 the offenders ; and if they cannot 
 otherwise succeed in doing so, they 
 may use force. Hex v. Fursey, 6 
 C. & P. 81— Gaselee and Parke. 
 
 Without any proclamation at all, 
 if a meeting is illegal, a party who 
 
440 
 
 RIOTS. 
 
 attends it, knowing it to be so, is 
 guilty of an offence. Ih. 
 
 A meeting called to adopt pre- 
 paratory measures for holding a na- 
 tional convention, is an illegal meet- 
 ing, lb. 
 
 Although a man may arm him- 
 self and his friends for the defence 
 of the possession of his house against 
 such as threaten to make an unlaw- 
 ful entry, he cannot lawfully do the 
 same in defence of his close. Jiex 
 V. Sangor {Bishop), 1 Russ. C. & 
 M. 388— Heath. 
 
 If persons are assembled together 
 to the number of three or more, and 
 speeches are made to those persons 
 to excite and inflame them, with a 
 view to incite them to acts of vi- 
 olence, and if that same meeting is 
 so connected in point of circum- 
 stances with a subsequent riot, that 
 you cannot reasonably sever the 
 latter from the incitement that was 
 used, those who incited are guilty of 
 the riot, although they are not pre- 
 sent when it occurs. Reg. v. Sharpe, 
 3 Cox, C. C. 288— Wilde, C. J. 
 
 If four are indicted for a riot, 
 and two die before trial, and two 
 are found guilty, judgment will not 
 he arrested. Rex v. Scott, 3 Bun-. 
 1262 ; 1 W. Bl. 350. 
 
 2. lUegal Training and Drilling. 
 
 A count in an indictment, under 
 60 Geo. 3 & 1 Geo. 4, c. 1, the 1st 
 section of which prohibits assembUes 
 of persons for the purpose of unlaw- 
 fully practising military exercise, 
 and then goes on to impose a pen- 
 alty on all persons who shall train 
 or drill any other persons, or who 
 shall be trained or drilled, is not 
 bad for duplicity, though it charges 
 the offence which is prohibited, and 
 the offence for which a penalty is 
 imposed. Reg. v. Hunt, 3 Cox, C. 
 C. 215 — Maule. See Gogarty v. 
 Reg., 3 Cox, C. C. 306. 
 
 3. Duties of the Magistracy. 
 A magistrate called upon to sup- 
 press a riot is required by law to do 
 
 all he knows to be in his power 
 that can reasonably be expected 
 from a man of honesty and of or- 
 dinary prudence, firmness and activ- 
 ity, under the circumstances. Mere 
 honesty of intention is no defence, if 
 he fails in his duty. Rex v. Pinney, 
 3 B. & Ad. 947 ; 5 C. & P. 254. 
 
 N"or will it be a defence that he 
 acted up6n the best professional 
 advice that could be obtained, on 
 legal and military points, if his 
 conduct has been faulty in point of 
 law. Tb. 
 
 in suppressing a riot, he is not 
 bound to head the special consta- 
 bles, or to arrange and marshal 
 them ; this is the duty of the chief 
 constables. lb. 
 
 Magistrates are not criminally 
 answerable for not having called 
 out special constables, and compel- 
 led them to act pursuant to 1 & 2 
 Will. 4, c. 41, unless it is proved 
 that information was laid before 
 them, on oath, of a riot having oc- 
 curred or being expected. lb. 
 
 A magistrate is not chargeable 
 with neglect of duty for not hav- 
 ing called out the posse comitatus 
 in case of a riot, if he has given 
 the king's subjects reasonable and 
 timely warning to come to his as- 
 sistance, lb. 
 
 A magistrate who calls upon 
 soldiers to attack a mob and sup- 
 press a riot is not bound to go with 
 them ; it is enough if he gives them 
 his authority. Jb. 
 
 A magistrate may assemble all 
 the king's subjects to quell a riot, 
 and may call in the soldiers, who 
 are subjects, and may act as such ; 
 but this should be done with great 
 caution. Rex v. Kennet, 5 C. & P. 
 282, n. 
 
 At the time of a riot, a magis- 
 trate may repel force by force, be- 
 fore the reading of the proclamation 
 from the riot act. lb. 
 
 If, on a riot taking place, a mag- 
 istrate neither reads the proclama- 
 tion from the riot act, nor restrains 
 nor apprehends the rioters, nor gives 
 
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mDICTMENT. 
 
 441 
 
 any order to fire om them, nor makes 
 any use of a military force under his 
 command, this is primi, facie evi- 
 dence of a criminal neglect of duty 
 in him ; and it is no answer to the 
 charge for him to say that he was 
 afraid, unless his fear arose from 
 such danger as would affect a firm 
 man ; and if, rather than apprehend 
 the rioters, his sole care was for 
 himself, this is also neglect. 76. 
 
 It is not only lawful for a magis- 
 trate to disperse an unlawful assem- 
 bly, even when no riot has occur- 
 red ; but if they do not do so, and 
 are guilty of criminal negligence in 
 not putting down any unlawful as- 
 sembly, they are liable to be prose- 
 cuted for a breach of their duty. 
 Reg. V. Neale, 9 C. & P. 431— Lit- 
 tledale. 
 
 The mode of dispersing an unlaw- 
 ful assembly may be very different 
 according to the circumstances at- 
 tending it in each particular case ; 
 and an unlawful assembly may be 
 so far verging towards a riot, that 
 it may be the bounden duty of the 
 magistrates to take immediate steps 
 to disperse the assembly ; and there 
 may be cases where the magistrates 
 will be bound to use force to dis- 
 perse an unlawful assembly. lb. 
 
 4. Aiding and assisting the Con- 
 stabulary. 
 
 To support an indictment against 
 a person for refusing to aid and assist 
 a constable in the execution of his 
 duty in quelling a riot, it is neces- 
 sary to prove — first, that the con- 
 stable saw a breach of the peace 
 committed ; secondly, that there 
 was a reasonable necessity for call- 
 ing on the defendant for his assist- 
 ance ; and thirdly, that when duly 
 called upon to assist the constable, 
 the defendant, without any physical 
 impossibility or lawfuh excuse, re- 
 fused to do so ; and in such a case 
 it is no ground of defence that from 
 the number of rioters the single aid 
 of the defendant would not have 
 
 been of any use. R&g. v. Brown, 
 Car. & M. 314— Alderson. 
 
 A person charged to aid a con- 
 stable, and who does so, is pro- 
 tected eundo, morando et redeundo, 
 Reg. V. Phelps, Car. & M. 180— 
 Coltman. 
 
 5. Indictment. 
 
 If an indictment on 1 Geo. 1, 
 Stat. 2, c. 5, s. 1, for remaining as- 
 sembled one hour after proclama- 
 tion, in setting out the proclamation 
 omits the words " of the reign of," 
 which were contained in the proc- 
 lamation read by the magistrate — 
 this is a variance (but amendable 
 under 14 & 15 Vict. c. 100, s. 24). 
 Rex V. Woolcock, 5 0. & P. 516 — 
 Patteson. 
 
 Twelve persons were indicted for 
 a riot and assaulting J. W. The 
 indictment did not conclude in ter- 
 rorem populi. Several of the de- 
 fendants had been convicted, and, 
 at the ensuing assize, at which the 
 remaining defendants were tried, 
 there was evidence that they had 
 joined in the riot, but there was no 
 proof of any assault, except in the 
 words " po. se," and " guilty," writ- 
 ten on the indictment, over the 
 names of the convicted defendants : 
 — Held, that this was no proof of 
 an assault as against the present de- 
 fendants, and that they could not 
 be convicted of the riot only, as the 
 indictnient did not conclude in ter- 
 rorem populi. Bex v. Hughes, 4 C. 
 & P. 373. But see 14 & 15 Vict. c. 
 100, s. 24. 
 
 If persons are charged with a riot, 
 and cutting down fences, and the 
 indictment does not conclude in 
 terrorem popuU, they cannot on 
 that indictment be convicted of a 
 riot, but may be convicted of an 
 unlawful assembly. Rex v. Cox, 4 
 C. & P. 538— Patteson. 
 
 An indictment on 1 Geo. 1, stat. 
 2, c. 5, s. 1, for remaining assembled 
 one hour after proclamation made, 
 need not charge the original riot to 
 
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442 
 
 RIOTS. 
 
 have been in terrorem populi. Bex 
 V. James, 5 C. & P. 153 — Patteson. 
 An indictment containing two 
 counts, one for a riot, and the other 
 for an assault, found by the grand 
 jury, a true bill as to the assault 
 and ignoramus as to the riot, is 
 good. Mex V. ^ieldhouse, Cowp. 
 325. 
 
 6. Evidence. 
 
 On an indictment for a riot, the 
 parties charged must be proved to 
 have been present before the fact of 
 the riot can be given in evidence. 
 Nichohori's case, 1 Lewin, C. C. 300 
 — Alderson. 
 
 But it has since been held that 
 the prosecutor is entitled to prove 
 the acts of any of the rioters before 
 he connects the others with the riot. 
 Meg. V. Cooper, X Russ. C. & M. 
 405— WilUams. 
 
 7. Injuries to Property hy Rioters. 
 The Offence.] By 7 & 8 Geo. 4, 
 c. 27, the 9 Geo. 3, c. 29, 52 Geo. 3, 
 c. 130, and 56 Geo. 3, c. 125, were 
 whoUy repealed; and the 1 Geo. 1, 
 St. 2, c. 5, was partially repealed. 
 The 7 & 8 Geo. 4, c. 27, repealed so 
 much of 22 & 23 Car. 2, c. 11, and 
 33 Geo. 3, c. 67, as related to this sub- 
 ject; and 9 Geo. 4, c. 31, wholly re- 
 pealed 43 Geo. 3, c. 113. The 24 
 & 25 Vict. c. 95, repeals 7 & 8 Geo. 
 4, c. 30, s. 8 ; 4 & 5 Vict. c. 56, s. 2 ; 
 and G &7 Vict. c. 10. 
 
 See L. C. J. TindcWs Charge on 
 the Bristol Special Commission in 
 1832, 5 C. & P. 265, n. 
 
 By 24 & 25 Vict. c. 97, s. 11, " if 
 " any persons, riotously and tumult- 
 " uously assembled together to the 
 " disturbance of the public peace, 
 " shall unlawfully and with force 
 " demolish or pull down or destroy, 
 " or begin to demolish, pull down 
 " or destroy, any church, chapel, 
 " meeting-house or other place of 
 " divine worship, or any house, sta- 
 " ble, coachhouse, outhouse, ware- 
 " house, office, shop, mill, malt- 
 
 " house, hop-oa§t, barn, granary, 
 " shed, hovel or fold, or any build- 
 "ing or erection used in farming 
 " land, or in carrying on any trade 
 " or manufacture or any branch 
 " thereof, or any building, other 
 " than such as are in this section 
 " before mentioned, belonging to 
 " the Queen, or to any county, rid- 
 " ing, division, city, borough, poor- 
 " law union, parish or place, or be- 
 " longing to any university, or col- 
 " lege or hall of any university, or 
 " to any inn of court, or devoted 
 " or dedicated to public use or or- 
 " nament, or erected or maintained 
 " by public subscription or contribu- 
 " tion, or any machinery, whether 
 " fixed or movable, prepared for or 
 " employed in any manufacture, or 
 " in any branch thereof, or any 
 " steam-engine or other engine for 
 " sinking, working, ventilating or 
 " draining any mine, or any staith, 
 " building or erection used in con- 
 " ducting the business of any mine, 
 " or any bridge, waggon- way or 
 " trunk for conveying minerals 
 " from any mine, every such of- 
 " fender shall be guilty of felony, 
 " and, being convicted thereof, shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servitude 
 " for life, or for any term not less 
 " than five years (27 & 28 Vict. c. 
 "47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour and 
 " with or without solitary confine- 
 "ment." {Former enactment, 7 & 
 8 Geo. 4, c. 30, s. 8.) 
 
 By s. 12, "if any persons, riot- 
 " ously and tumultuously assembled 
 " together to the disturbance of 
 " the pubhc peace, shall unlawfully 
 " and with force injure or damage 
 " any such church, chapel, meeting- 
 " house, place of divine worship, 
 " house, stable, coachhouse, out- 
 " house, warehouse, office, shop, 
 "mill, malthouse, hop-oast, barn, 
 " granary, shed, hovel, fold, build- 
 " ing, erection, machinery, engine, 
 " staith, bridge, waggon-way or 
 
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EVroENCE. 
 
 443 
 
 "trunk, as in the last preceding 
 " section mentioned, every such of- 
 " fender shall be guilty of a mis- 
 " demeanor, and, being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be kept 
 " in penal servitude for any term 
 " not exceeding seven and not less 
 " than five years (27 & 28 Vict. c. 
 " 47), or to be imprisoned for any 
 " term not exceeding two years, with 
 " or without hard labour : provided, 
 " that if, upon the trial of any per- 
 " son for any felony in the last pre- 
 " ceding section mentioned, the jury 
 " shall not be satisfied that such 
 " person is guilty thereof, but shall 
 " be satisfied that he is guilty of 
 " any ofience in this section men- 
 " tioned, then the jury may find 
 " him guilty thereof, and he may be 
 " punished accordingly." 
 
 It is not a beginning to demolish 
 a house within 7 & 8 Geo. 4, c. 30, 
 s. 8, unless the jury is satisfied that 
 the ultimate object of the rioters 
 was to demolish the house, and 
 that, if they had carried their inten- 
 tion into full effect, they would, in 
 point of fact, have demolished it. 
 Hex V. Thomas, 4 C. & P. 237— 
 Littledale. 
 
 An indictment for feloniously be- 
 ginning to demolish a house cannot 
 be supported unless the persons 
 committing the outrage had an in- 
 tention of destroying the house ; 
 and, therefore, where considerable 
 damage was done to a house by a 
 mob, who did this with an intention 
 of seizing a person who had taken 
 refuge in the house : — Held, to be 
 not within the statute. liex v. 
 Price, 5 C. & P. 510— Tindal. 
 
 Every man has a right to work 
 for the best price he can get, but if 
 others choose to work for less than 
 the usual prices, the law will not 
 permit that violence should be com- 
 mitted towards them, or towards 
 those by whom they are employed, 
 or those with whom they are con- 
 nected. Where a party of coal- 
 whippers, having a feeling of ill- 
 
 will towards a coal-lumper, who 
 paid less than the usual wages, cre- 
 ated a mob, and riotously went to 
 the house where he kept his pay- 
 table, and cried out that they would 
 murder him, and began to throw 
 stones, and broke windows, and 
 partitions, and part of a wall, and 
 continued, after his escape, throw- 
 ing stones at the house till they 
 were compelled to desist by the 
 threats of the police: — Held, that 
 they might be convicted of begin- 
 ning to demolish under 7 & 8 Geo. 
 4, c. 30, s. 8, though their principal 
 object was to injure the lumper; 
 provided it was also their object to 
 demolish the house, either on ac- 
 count of its being used by him, or 
 by his men, and though they had 
 not any ill-will against the owner of 
 the house personally. Heg. v. Batt, 
 6 C. & P. 329— Gm-ney. 
 
 A. and others were indicted for 
 feloniously demolishing the house of 
 B. It was proved that A. and a 
 mob of persons assembled at H. ; A. 
 there addressed the mob in violent 
 language, and led them in a direc- 
 tion towards a police-oifice about a 
 mile from H., some of the mob from 
 time to time leaving, and others 
 joining. At the police-office the 
 mob broke the windows, and then 
 went and attacked the house of B., 
 and set it on fire, A. not being 
 present at the attack on the house 
 or at the fire : — Held, that on this 
 state of facts A. ought not to be 
 convicted of the demolition, as it 
 did not sufficiently appear what the 
 original design of the mob at H. 
 was, nor whether any of the mob 
 who were at H. were the persons 
 who demolished B.'s house. Heff. 
 V. Howell, 9 C. & P. 437— Little- 
 dale. 
 
 If rioters attack a house, and 
 have begun to demolish it, but 
 leave off of their own accord, after 
 having gone a certain length, and 
 before the act of demolition is com- 
 pleted, this is evidence from which 
 a jury might infer that they did not 
 
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444 
 
 RIOTS. 
 
 intend to demolish the house ; hut 
 if the mob was prevented from go- 
 ing on hy the interference of the 
 police, or any other force, that 
 would be evidence to shew that 
 they were compelled to desist from 
 that which they had designed, and 
 it would be for the jury to infer 
 that they had begun to demohsh 
 within 7 & 8 Geo. 4, c. 80, s. 8. 
 lb. 
 
 Destroying movable shop-shut- 
 ters is not a beginning to demolish 
 within that statute, as they are not 
 part of the freehold. lb. 
 
 If rioters destroy a house by fire, 
 that is as much a demolition as if 
 any other mode of destruction were 
 used. lb. 
 
 If a part of the object of rioters 
 is to demolish a house, it makes no 
 difference that they also acted with 
 another object, such as to injure a 
 person who had taken refuge there. 
 lb. 
 
 On an indictment under 7 & 8 
 Geo. 4, c. 30, s. 8, for riotously be- 
 ginning to demolish, and demolish- 
 ing a dwelling-house, total demoli- 
 tion is not necessary, though the 
 parties were not interrupted. If the 
 house is destroyed as a dwelling- 
 house, it is enough. Reg. v. Phil- 
 lips, 2 M. C. C. 252 ; S. a nom. 
 Beg. V. Langford, Car. & M. 602. 
 
 Four men, members of, and con- 
 nected with the family of, the own- 
 er of the cottage, with great vio- 
 lence, and to his great terror, drove 
 him from it, and pulled it down all 
 but the chimney : — Held, sufficient 
 to satisfy the statute, though no 
 other persons were within reach of 
 the alarm ; they having no bona 
 fide claim of right, but intending to 
 injure the owner. lb. 
 
 The 7 & 8 Geo. 4, c. 30, s. 8, not 
 having given any definition of what 
 shall be a riot within the meaning 
 of that enactment, the common- 
 law definition of a riot must be re- 
 sorted to, and in such a case, if any one 
 of her Majesty's subjects is terrified, 
 this is a sufficient terror and alarm 
 
 to substantiate that part of the 
 charge of riot. lb. 
 
 If persons riotously assemble and 
 demolish a house, really believing 
 that it is the property of one of 
 them, and act bonS, fide in the as- 
 sertion of a supposed right, this will 
 not be a felonious demolition of the 
 house vathin 7 & 8 Geo. 4, c. 30, s. 
 8, even though there was a riot. 
 lb. 
 
 If rioters destroy a house by fire, 
 this is a felonious demolition of it 
 within 7 & 8 Geo. 4, c. 30, s. 8, and 
 the person guilty of such an offence 
 may be convicted of an indictment 
 founded on that enactment, and 
 need not be indicted for arson. Reg. 
 V. Harris, Car. & M. 661— Tindal, 
 Parke and Rolfe. S. P., Reg. v. 
 Christian, 12 L. J., M. C. 26— 
 Wightman. 
 
 If, in a case of feloniously de- 
 molishing a house by rioters, it ap- 
 pears that some of the prisoners set 
 fire to the house itself, and that 
 others carried furnitui-e out of the 
 house and burnt it in a fire made 
 on the gravel- walk on the outside 
 of the house, it will be for the jury 
 to say whether the latter were not 
 encouraging and taking part in a 
 general design of destroying the 
 house and furniture ; and if so, the 
 jury ought to convict them. lb. 
 
 A prisoner had been committed 
 on a charge of high treason, and af- 
 terwards the grand jury returned a 
 true bill against him, with others, 
 for feloniously demolishing a house, 
 under 7 & 8 Geo. 4, c. 30, s. 8. 
 He pleaded to that indictment, and 
 wished to be tried after the other 
 prisoners, who were indicted with 
 him for feloniously demolishing the 
 house, on the ground that he had 
 had no copy of any depositions as to 
 that charge. But this was not al- 
 lowed, as the prosecution might 
 have been commenced without go- 
 ing before any magistrate, and then 
 there would have been no deposi- 
 tions at all. Reg. v. Simpson, Car. 
 & M. 669— Tindal, Parke and Rolfe. 
 
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KOBBERY— THE OFFENCE. 
 
 445 
 
 If a house is demolished by riot- 
 ers by means of fire, one of the riot- 
 ers, who is present while the fire is 
 burning, may be convicted for the 
 felonious demolition under 7 & 8 
 Geo. 4, c. 30, s. 8, although he is 
 not proved to have been present 
 when the house was originally set 
 on fire. lb. 
 
 XXXin. ROBBEET. 
 
 1. The Offence, 445. 
 
 2. Garotting, 448. 
 
 3. Indictment, 449. 
 
 4. Evidence, 449. 
 
 5. Assault witji Intent to Eob, 450. 
 
 6. Punishment of Whipping, 452. 
 
 1. The Ofence. 
 
 By 24 & 25 Vict. c. 96, s. 40, 
 ' whosoever shall rob any person, 
 ' or shall steal any chattel, money, 
 ' or valuable security from the per- 
 ' son of another, shall be guilty of 
 ' felony, and, being convicted there- 
 ' of, shall be liable, at the discre- 
 ' tion of the court, to be kept in 
 ' penal servitude for any term not 
 ' exceeding fourteen years, and not 
 ' less than five years (27 & 28 Vict. 
 ' c. 47), or to be imprisoned for 
 ' any term not exceeding two years, 
 ' with or without hard labour, and 
 ' with or without solitary confine- 
 ' ment." {Fm~mer provision,! ~WiW.. 
 1 & 1 Vict. c. 87, s. 5.) 
 
 By s. 41, " if, upon the trial of 
 ' any person upon any indictment 
 ' for robbery, it shall appear to the 
 ' jury upon the evidence that the 
 'defendant did not commit the 
 ' crime of robbery, but that he did 
 ' commit an assault with intent to 
 ' rob, the defendant shall not, by 
 ' reason thereof, be entitled to be 
 ' acquitted, but the jury shall be at 
 ' liberty to return as their verdict 
 ' Aat the defendant is guilty of an 
 ' assault with intent to rob ; and 
 ' thereupon such defendant shall be 
 ' liable to be punished in the same 
 
 " manner as if he had been convict- 
 " edupon an indictment for felonious, 
 " ly assaulting with intent to rob; 
 " and no person so tried as is herein 
 " lastly mentioned shall be liable to 
 " be afterwards prosecuted for an 
 " assualt with intent to commit the 
 " robbery for which he was so 
 "tried." {Former provision, 14: & 
 15 Vict. c. 100, s. 11.) 
 
 Before the JEhaetment.~\ — The fol- 
 lowing decisions took place under 7 
 Will. 4 & 1 Vict. c. 85, s. 11, which 
 was repealed by 14 & 15 Vict. c. 
 100, s. 10 ; and by that section it 
 was enacted, " that on the trial of 
 " an indictment for robbery, the 
 "jury may convict of an assault 
 " with intent to rob, and, on con- 
 " viction, the prisoner is liable to 
 " the same punishment as upon an 
 " indictment for feloniously assault- 
 " ing with intent to rob." 
 
 A. being indicted for a robbery, 
 the jury acquitted him of the rob- 
 bery, and found him guilty of a 
 common assault only: — Held, such 
 conviction right. Heg. v. Birch, 1 
 Den. C. C. 185 ; 2 C. & K. 193. 
 
 The prisoners were indicted for 
 robbery; the jury acquitted them 
 of the robbery, but found that the 
 prisoners were guilty of assaulting 
 and beating the prosecutor with in- 
 tent to rob him : — Held, that the 
 jury was not justified in finding this 
 verdict, and that the judgment 
 must be arrested, as the assaults 
 contemplated by 7 Will. 4 & 1 
 Vict. c. 85, s. 11, were misdemean- 
 ors, and as the jury had found the 
 prisoners guilty of a felony, which 
 was not in the indictment. Beg. v. 
 Beid, T. & M. 431 ; 2 Den. C. C. 
 89 ; 15 Jur. 181 ; 20 L. J.,M. C.67. 
 
 Burglariously breaking and en- 
 tering a dwelling-house, with intent 
 to commit a rape, was not a crime 
 which included an assault ; and 
 therefore, in an indictment for such 
 a burglary, the prisoner could not 
 be convicted of an assault. Beg. v. 
 ,Car. &M. 264;2M.C.C. 
 
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446 
 
 ROBBERY. 
 
 217 ; S. P., Reg v. Gr-umpton, Car. 
 & M. 597— Patteson. 
 
 If, on an indictment for a rob- 
 bery with violence, the robbery was 
 not proved, the prisoner could not 
 b^ found guilty of the assault only, 
 under 7 Will. 4 & 1 Vict. c. 85, s. 
 1 1 , unless it appeared that such as- 
 sault was committed in the progress 
 of somethingj which, when com- 
 pleted, would be, and with intent 
 to commit, a felony. Reg. v. Green- 
 wood, 2 C. & K. 339— Wightman. 
 
 By 1 & 9> Geo. 4, c. 27, the 23 
 Hen. 8, c. 1 , and 3 Will. & M. c. 9, 
 and 1 Edw. 6, c. 12, so far as re- 
 lated to this subject were repealed, 
 and 24 & 25 Vict. c. 9 5, repeals 7 & 
 8 Geo. 4, c. 29, ss. 6, 7, and 7 Will. 
 4 & 1 Vict. c. 87. 
 
 See G. J. Tindal 's Gharge, 5 C. 
 & P. 267, n. 
 
 If a robber takes a purse of mon- 
 ey from a person and restores it to 
 him immediately, saying, " If you 
 value your purse take it back and 
 give me the contents," but is appre- 
 hended before the money is deliv- 
 ered to him, yet the crime is com- 
 pleted. Rex V. Peai, 1 Leach, C. C. 
 228 ; 2 East P. 0. 557. 
 
 Taking money from a woman at 
 the time of an attempt to commit a 
 rape amounts to robbery, although 
 there was no demand of money 
 made by the prisoner, and it was 
 clearly his original intent only to 
 commit a rape. Rex v. Blachham, 
 2 East, P. C. 711. 
 
 Where money was given to one 
 of the mob during the riots in Lon- 
 don, in 1780, upon knocking at the 
 prosecutor's door in a menacing 
 manner : — Held, that it was rob- 
 bery. ReK V. Taplin, 2 East, P. C. 
 712. 
 
 Where the prisoners threatened 
 to bring a mob from Birmingham 
 (then in a state of riot and disturb- 
 ance), and burn the prosecutor's 
 house if he did not give them mon- 
 ey, and he did so under fear of that 
 threat : — Held, a robbery. Rex v. 
 
 Astley, 2 East, P. C. 729 ; Rex v. 
 Brown, 2 East, P. C. 731. 
 
 So it was held in the case of a 
 threat to tear down corn, and level 
 the house. Rex v. Simons, 2 East, 
 P. C. 731. 
 
 If a person by force or threats 
 compels another to give him goods, 
 and by way of colour obliges him 
 to take, or if he offers less than the 
 value, it is robbery. Rex v. Simons, 
 2 East, P. C. 712 ; S. P., Rex v. 
 Spencer, 2 East, P. C. 712. 
 
 ' Where persons under pretence of 
 an auction got a woman into a 
 house, and compelled her, by 
 threats of . can-ying her before a 
 magistrate and to prison for not 
 paying for a lot pretended to have 
 been bid for by her, to pay them 
 one shilling through fear of prison, 
 and for the purpose of obtaining 
 her liberation, but without any fear 
 of any other personal violence : — 
 Held, not robbery, but only duress. 
 Rex V. Wood, 2 East, P. C. 732. 
 
 To obtain money by a threat to 
 send for a constable, and take the 
 party before a magistrate, and 
 thence to prison, is not robbery ; 
 for the threat of legal imprison- 
 ment ought not so to alarm any 
 mind as to induce the person to 
 part with his property. Rex v. 
 Knewland, 2 Leach, C. C. 721 ; 2 
 East, P. C. 732. 
 
 If the property is not taken by 
 violence, nor parted with through 
 fear, it is no robbery ; though 
 there was sufficient legal and rea- 
 sonable ground for fear, as upon a 
 threat to charge one with an un- 
 natural crime. Rex v. Reane, 2 
 East, P. C. 734 ; 2 Leach, C. C. 
 616. 
 
 Suddenly snatching a bundle from 
 the hands of a boy as the prisoner 
 ran past him, is only larceny, as 
 there was not a sufficient degree of 
 force and terror to constitute rob- 
 bery. Rex V. 'Macavlay, 1 Leach, 
 C. C. 287 ; S. P., Rex v. Robins, 1 
 Leach, C. C. 290, n. 
 
 But snatching an article from a 
 
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THE OFFENCE. 
 
 447 
 
 man will constitute robbery, if it 
 is so attached to his person or 
 clothes as to aflford resistance. Rex 
 V,. Mason, R. & R. C. C. 419. 
 
 To force an ear-ring from the ear 
 of a lady, with a felonious intent 
 to steal it, is a sufficient degree of 
 violence to constitute robbery ; and 
 to remove it from the ear to the 
 _^ curls of her hair, where it acci- 
 dentally remained, is a sufficient 
 carrying away. Rex v. Lapier, 1 
 Leach, C. C. 320 ; 2 East, P. C. 
 557, 708. 
 
 To snatch a diamond pin from 
 the head-dress of a lady, with such 
 force as to remove it with part of 
 the hair from the place in which it 
 was fixed, is a sufficient violence to 
 constitute robbery. Rex v. Moore, 
 1 Leach, C. C. 335. 
 
 Snatching property from the hand 
 of another is not sufficient force to 
 constitute highway robberv. Rex 
 V. Baker, 1 Leach, C. C."290; 2 
 East, P. C. 702. 
 
 To constitute the crime of higli- 
 way robbery, the force used must 
 be force with intent to overpower 
 the party, and prevent his resist- 
 ance ; and if the force used is not 
 with that intent, but only to get 
 possession of the property of the 
 party attacked, it is not highway 
 robbery. Rex v. GnosU, 1 C. & P. 
 304— Garrow. 
 
 The crime of robbery may be 
 committed by obtaining money 
 from a man, by threatening to 
 charge him with having been guilty 
 of sodomitical practices. Rex v. 
 Jones, 1 Leach, C. C. 139. 
 
 To obtain money from a person 
 against his will, by threatening to 
 carry him before a magistrate, and 
 to accuse him of unnatural prac- 
 tices, amounts to robbery, though 
 no actual or personal violence is 
 used. Rex v. Bannally, 1 Leach, 
 C. 0. 193 ; 2 East, P. C. 713, 783. 
 
 It is equally a robbery to extort 
 money from a person, by threaten- 
 ing to accuse him of an unnatural 
 crime, whether the party so threat- 
 
 ened has been guilty of such crime 
 or not. Rex v. Gardner, 1 C. & P. 
 479— Littledale. 
 
 If a man obtains property from 
 another by accusing him of having 
 been guilty of an unnatural crime, 
 it will amount to robbery, although 
 the party was under no apprehen- 
 sion of personal danger, and felt 
 no other fear than that of losing 
 his character. Rex v. Hickman, 1 
 Leach, C. C. 278; 2 East, P. C. 
 728. 
 
 Semble, it is still robbery to ex- 
 tort money by threatening a charge 
 of sodomy. Reg. v. Stringer, 2 M. 
 0. C. 261. 
 
 To constitute robbery by taking 
 money from another upon a threat 
 of charging him with an unnatural 
 crime, the money must be taken 
 immediately upon the threat made, 
 and not after the parties have sep- 
 arated, and there has been time for 
 the prosecutor to deliberate and 
 procure assistance. Rex v. Jack- 
 son, 1 East, P. C. Add. xxi; 1 
 Leach, C. C. 193, n. ; 2 Leach, C. 
 C. 618, n. 
 
 Parting with property upon the 
 charge of an unnatural crime will 
 not make the taking a robbery, if 
 it is parted with, not from the fear 
 of loss of character, but for the 
 purpose .of prosecuting. Rex v. 
 Fuller, R. & R. C. C. 4C8. 
 
 Where money was obtained by 
 calling a man a sodomite and threat- 
 ening him, but the money was part- 
 ed with by the prosecutor, not so 
 much from fear of losing his char- 
 acter as from fear of losing his 
 place : — Held, that it was sufficient 
 to constitute a robbery. Rex v. 
 Hlmstead, 2 Russ. C. & M. 128. 
 
 Obtaining money by threatening 
 to charge a man with an unnatural 
 crime, and carry him before a mag- 
 istrate, is robbery, if there is any 
 constraint upon his person. Rex v. 
 Gannon, R. & R. C. C. 146. 
 
 The parting with money or goods, 
 through fear of loss of character 
 and service, upon a charge of so- 
 
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448 
 
 KOBBERY. 
 
 domitical practices, is sufficient to 
 constitute robbery, although the 
 party has no fear of being taken 
 into custody, nor any dread of pun- 
 ishment, liex V. Egerton, R. & R. 
 C. C. 375. 
 
 Obtaining money from a woman 
 by threatening to accuse her hus- 
 band of an indecent assault is not 
 robbery. Rex v. Edwards, 5 C. & 
 P. 518; S. 0. nom. Bex v. Ed- 
 ward, 1 M. & Rob. 257— Little- 
 dale. 
 
 If a bailiff handcuffs a prisoner, 
 under pretence of carrying him to 
 prison with greater safety, and by 
 means of this violence extorts mon- 
 ey, he is guilty of robbery. Hex v. 
 Gascoigne, 1 Leach, C. C. 280; 2 
 East, P. C. 709. 
 
 If a gang of poachers attacks a 
 gamekeeper and leaves him sense- 
 less on the ground, and one of them 
 returns and steals his money : — 
 Held, that one only can be con- 
 victed of the robbery, as it was not 
 in pursuance of any common in- 
 tent. Hex V. Hawkiiis, 3 C & P. 
 392— Park. 
 
 A. had set wires in which game 
 was caught; B., a gamekeeper, 
 found them and took ' them, with 
 the game caught in them, for the 
 use of the lord of the manor : A. 
 demanded them with menaces, and 
 
 B. gave them up. The jury found 
 that A. acted under a bona fide im- 
 pression that the wires and game 
 were his property: — Held, that it 
 was no robbery. Rex v. BMl, 3 
 
 C. & P. 409— Vaughan. 
 
 A. and B. were walking together, 
 B. carrying A.'s bundle, when C. 
 and D. came up and assaulted A.: 
 
 B. threw down the bundle, and ran 
 to the assistance of A., when C. 
 took it; up and made off with it. 
 
 C. and D. were indicted for rob- 
 bery, A. being the prosecutor: — 
 Held, that they could not be con- 
 victed of the robbery, but only of 
 simple larceny, as the thing stolen 
 was not in the personal custody of 
 
 A. Rex V. Fallows, 5 C. & P. 508 
 Vaughan. 
 
 A. was attacked by robbers, who, 
 after using very great violence 
 towards him, took from him a piece 
 of paper, on which was written a 
 memorandum respecting some mon- 
 ey that a person owed him : — Held, 
 robbery. Rex v. JBingley, 6 C. & 
 P. 602— Gurney. 
 
 A. asked B. what o'clock it was, 
 and B. took out his watch to tell 
 him, holding his watch loosely in 
 both his hands. A. caught hold of 
 the ribbon and key attached to the 
 watch and snatched it from B., and 
 made off with it: — Held, no rob- 
 bery, but a stealing from the per- 
 son. Reg. V. Hughes, 2 C. & K. 
 214— Patteson. 
 
 In order to constitute the offence 
 of robbery, not only force must be 
 employed by the party charged 
 therewith, but it is necessary to 
 shew that that force was used with 
 the intent to accomplish the rob- 
 bery. Reg. V. Edwards, 1 Cox, C. 
 C. 32— Alderson. 
 
 When it appeared that a wound 
 had been accidentally inflicted on 
 the hand of the prosecutrix : — Held, 
 that an indictment for robbery was 
 not sustainable. Ih. 
 
 A creditor having violently as- 
 saulted his debtor, and so forced 
 him to give him a cheque in part 
 payment, and having then again 
 assaulted him, in order to force him 
 to give him money in payment of 
 the debt :— Held, that as there was 
 no felonious intent, he could not 
 properly be convicted of robbery. 
 Reg. V. Hemmings, 4 F. & F. 50 
 —Erie. ■ 
 
 2. Garotting. 
 By 24 & 25 Vict. c. 100, s. 21, 
 " whosoever shall, by any means 
 " whatsoever, attempt to choke, 
 " suffocate or strangle any other 
 " person, or shall, by any means 
 '.' calculated to choke, suffocate or 
 " strangle, attempt to render any 
 
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INDICTMENT. 
 
 449 
 
 " other person insensible, unoon- 
 " scions or incapable of resistance, 
 " with intent in any of such cases 
 " thereby to enable himself or any 
 " other person to commit, or with 
 " intent in any of such cases there- 
 " by to assist any other person in 
 " committing, any indictable of- 
 " fence, shall be guilty of felony, 
 " and, being convicted thereof, shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servitude 
 " for life, or for any term not less 
 " than five years (27 & 28 Vict. c. 
 " 47), or to be imprisoned for any 
 " term not exceeding two years, 
 '' with or without hard labour." 
 
 3. Indictment. 
 An indictment for 
 
 a highway 
 robbery must state that the assault 
 was feloniously made with an of- 
 fensive weapon. Bex v. Pelfry- 
 man, 2 Leach, C. C. 563 ; 2 East, 
 P. C. 783. 
 
 An indictment for robbery need 
 not have the word "violently;" 
 but it must appear upon the whole 
 statement that violence was used. 
 Rex V. Smith, 2 East, P. C. 784. 
 
 A servant was%et out by his mas- 
 ter to receive money from his mas- 
 ter's customers, and having received 
 the money, he was robbed of it on 
 his way home. Semble, that an in- 
 dictment for this robbery, in which 
 the money was laid to be the prop- 
 erty of his master, could not be 
 supported, as the money had never 
 been in the possession of the mas- 
 ter. Beg. V. Rudick, 8 C. & P. 
 237 — Alderson. 
 
 And when, in such a case, the 
 objection was taken during the 
 trial, the judge directed the jury 
 to be discharged, and a new indict- 
 ment to be sent to the grand jury, 
 containing a count laying the prop- 
 erty in the servant. lb. 
 
 A. and B. were indicted for the 
 offence of robbery. The j ury found 
 that A. took the property of the 
 prosecutor from him by violence, 
 and that B. was present during part 
 
 Fish. Dig.— 33. Digitized by Microsoft® 
 
 of the time, and that he was a 
 party, with A., to a design to bring 
 the prosecutor to the place where 
 he was robbed by A., and to obtain 
 property from him on a false charge 
 of an unnatural crime, but that he 
 was not aiding or assisting in, or 
 privy to the taking of, the property 
 from the prosecutor by violence : — 
 Held, that, in order to convict B., 
 the indictment should have been 
 framed on 7 Will. 4 & 1 Vict. c. 
 87, s. 4; and that he could not, 
 since the passing of the statute, 
 under the circumstances of the 
 case, be convicted on an indictment 
 charging the oifence of robbery. 
 Reg. V. Taunton, 9 C. & P. 309 ; 2 
 M. C. C. 118. 
 
 An indictment for a robbery on 
 an unmarried woman in her maiden 
 name is good, although she mar- 
 ries before the indictment is found. 
 Rex V. Turner, 1 Leach, C. C. 536. 
 
 Where several are indicted for 
 robbery, it is not necessary to aver 
 that they were together, but where 
 one only of the party is indicted, it 
 ought to be averred that he com- 
 mitted the offence " together with 
 others." Raffety's case, 2 Lewin, 
 C. C. 271 — Patteson. See Reg. v. 
 Ramsden, 1 Cox, C. C. 37— per 
 Maule, contrk. 
 
 An indictment for robbery, which 
 charges the prisoners with having 
 assaulted G. P. and H. P., and 
 stolen 2s. from G. P. and Is. from_ 
 H. P., is correct, if the robbing of 
 G. P. and H. P. was all one act ; 
 and, if it were so, the counsel for 
 the prosecution will not be put to 
 elect. Reg. v. Giddins, Car. «fc M. 
 634— Tindal. 
 
 4. Evidence. 
 
 On an indictment for robbery, 
 the declaration in articulo mortis of 
 the party robbed, is not admissible 
 in evidence. Rex v. Iloyd, 4 C. & 
 P. 233— Bolland. 
 
 A. and B., when riding in a gig 
 together, were robbed at the same 
 time, A. of his money, B. of his 
 
450 
 
 ROBBERY. 
 
 watch, and violence used towards 
 both. There was an indictment 
 for the robbing of A., and another 
 indictment for the robbing of B.: 
 — Held, that, on the trial of the 
 first indictment, evidence might be 
 given of the fact of the loss of the 
 watch by B., and that it was found 
 on one of the prisoners, but that 
 no evidence ought to be given of 
 any violence offered to B. by the 
 robbers. Rex v. Rooney, 7 C. & 
 P. 517— Littledale. 
 
 If persons who had formed part 
 of a mob obtain money from a 
 party by advising him to give mon- 
 ey to the mob, and are indicted for 
 this as a robbery, the prosecutor, to 
 shew that this was not bona fide 
 advice, may give evidence of de- 
 mands of money made by the same 
 mob at other places, before or after- 
 wards in the course of the same 
 day, if any of the prisoners were 
 present on those occasions. Rex v. 
 WinJcworth, 4 C. & P. 444— Parke. 
 
 An indictment for robbery charg- 
 ed that A. and B. together assaulted 
 C, and robbed him of his watch. 
 At the trial C. did not appear, and 
 tthere was no evidence of the felony, 
 but a witness saw C. on the ground 
 on the night in question, and sever- 
 al persons around him abusing him, 
 and this witness saw A. strike C. 
 The jury convicted A. of an assault, 
 but said that they were not satisfied 
 that A. had any intent to rob C. : — 
 Held, that the conviction was right. 
 Reg. V. Birch, 2 C. & K. 193 ; 1 
 Den. C. C. 185. 
 
 Evidence of footmarks is, per se, 
 insufficient evidence on which to 
 convict of a robbery. Reg. v. Brit- 
 ton, 1 F. & F. 354— Watson. 
 
 A., B. and C. were indicted for 
 having robbed and beaten D. A. 
 knocked D. down, and it was im- 
 puted that B. and C. stole the prop- 
 erty from his pockets : — ^Held, that 
 if B. and C. stole the property, and 
 A. did not participate in the rob- 
 bery, A. could not be convicted of 
 an assault, as the assault committed 
 
 by him was an independent assault 
 unconnected with the robbery ; but 
 that, if the jury thought that D. 
 was not robbed by any of the pris- 
 oners, but had been assaulted by all 
 of them, they might find all guilty 
 of the assault. Rei^. v. Barnett, 2 
 C. & K. 594 ; 3 Cox, C. C. 432— 
 Cresswell. 
 
 In a case of robbery from the 
 person, where the property alleg- 
 ed to have been stolen has not 
 been seen or known to be safe im- 
 mediately before the robbery, if 
 there is any evidence on the subject, 
 it is for the jury to say whether the 
 property was really in a position to 
 be stolen as alleged. Reg. v. Wil- 
 Jcins, 10 Cox, C. C. 363 — Chambers, 
 C. S. 
 
 5. Assault with Intent to Rob. 
 
 By 24 & 25 Vict. c. 96, s. 42, 
 " whosoever shall assault any per- 
 " son, with intent to rob, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall (save and ex- 
 " cept in the. cases where a greater 
 " punishment is provided by this 
 " act) be liable, at the discretion of 
 " the court, to be ifept in penal serv- 
 " itude for the term of five years 
 " (27 & 28 Vict. c. 47), or to be 
 " imprisoned for any term not ex- 
 " ceeding two years, with or with- 
 " out hard labour, and with or 
 " without solitary confinement." 
 Former provisions, 7 & 8 Geo. 4, c. 
 29, s. 6 ; 7 Will. 4 & 1 Vict. c. 87, 
 s. 6.) 
 
 By s. 43, " whosoever shall, being 
 " ai-med with any ofiensive weapon 
 " or instrument, rob, or assault 
 " with intent to rob, any person, or 
 " shall, together with one or more 
 "other person or persons, rob, or 
 " assault with intent to rob, any 
 " person, or shall rob anyperson,and 
 " at the time of or immediately be- 
 " fore or immediately after such 
 " robbery, shall wound, beat, strike, 
 " or use any other personal violence 
 " to any person, shall be guilty of 
 " felony, and, being convicted there- 
 
 Digitized by Microsoft® 
 
ASSAULT WITH INTENT TO ROB. 
 
 451 
 
 " of, shall be liable, at the discretion 
 " of the court, to be kept in penal 
 " servitude for life, or for any term 
 " not less than five years (27 & 28 
 " Vict. c. 47), or to be imprisoned 
 " for any term not exceedmg two 
 " years, with or without hard la- 
 " bour, and with or without solitary 
 " confinement." (^Former provision, 
 7 Will. 4 & 1 Vict. c. 87, s. 3.) 
 
 A. was decoyed into a house and 
 chained down to a seat, and com- 
 pelled to wiite an order for the pay- 
 ment of money and an order for the 
 delivery of deeds. The paper on 
 which he wrote remained in his 
 hand half an hour, but he was chain- 
 ed all the time : — Held, that this 
 was not an assault with intent to 
 rob within 7 & 8 Geo. 4, c. 29, s. 
 6. Rex V. Edwards, 6 0. & P. 521 
 — PatteSon. 
 
 It must be proved that the as- 
 sault was made on the person in- 
 tended to be robbed. Mex v. Thom- 
 as, 1 Leach, C. 0. 330; 1 East, P. 
 C. 417. And see Rex v. Trusty, 1 
 East. P. C. 418. 
 
 Therefore an assault on a post- 
 boy, with intent to rob the travel- 
 ler, is not sufficient. Ih. 
 
 There must be a demand of mon- 
 ey or other property, as well as an 
 assault, to constitute the oifence. 
 Rex V. Parfait, 1 Leach, C. C. 19 ; 
 1 East, P. C. 416. 
 
 A. and B., on a concerted plan to 
 obtain money from C, 'threatened to 
 accvise him of an indecent exposure 
 of his person, and A. (B. being 
 present) seized C. by the collar, and 
 A. and C. went to a station-house, 
 and there A. made the threatened 
 charge : — Held, that, on these facts, 
 A. and B. might be convicted of an 
 assault with intent to rob C, al- 
 though the threats used did not 
 come within the terms of 7 & 8 
 Geo. 4, c. 29, ss. 7, 9, or of 7 Will. 
 4 & 1 Vict. c. 87, s. 4. Reg. v. 
 Stringer, 1 C. & K. 188. 
 
 A., at C. fair, came up to B., the 
 
 sovereigns to buy him a horse, and 
 
 B. put them into his pocket. B. re- 
 fused to give the eleven sovereigns 
 back, and A. and the prisoner, who 
 was in his company, assaulted him, 
 but could not get the money from 
 him. On the next day the prisoner 
 asked B. for the eleven sovereigns ; 
 and, at L. fair on a subsequent day, 
 the prisoner, having seen the prose- 
 cutor receive seven sovereigns, de- 
 manded the eleven sovereigns of 
 him, and then knocked him down, 
 and tried to get the seven sovereigns 
 out of his pocket : — Held, that there 
 was such a semblance of a claim of 
 right, that this was not an assault 
 with intent to rob. Reg. v. Boden, 
 1 0. & K. 395— Parke. 
 
 Assaulting and threatening to 
 charge with an infamous crime 
 with intent to extort money, was 
 an assault with intent to rob under 
 7 Will. 4 & 1 Vict. c. 87, s. 3. 
 Reg. V. Stringer, 2 M. C. C. 261. 
 
 Where prisoners were indicted 
 for robbery under aggravated cir- 
 cumstances, it is competent for the 
 jury, under 14 & 15 Vict. c. 100, s. 
 11, to find the prisoners guilty of an 
 aggravated assault with intent to 
 rob, the assault following the nature 
 of the robbery chai-ged ; and pris- 
 oners found guilty of such aggrava- 
 ted assaults were liable to transport- 
 ation, under 7 Will. 4 & 1 Vict. c. 
 87, ss. 3, 10. Reg. v. Mitchell, 3 
 
 C. & K 181 ; 16 Jur. 506 ; 21 L. 
 J., M. C. 135 ; 2 Den. C. C. 468 ; 5 
 Cox, C. C. 541. 
 
 Indictment.'] — An indictment for 
 an assault with intent to rob, which 
 charges that the prisoner in and up- 
 on R. B. feloniously did make an 
 assault, " with intent the monies, 
 goods and chattels of R. B., from 
 the person and against the will of 
 R. B., then and there feloniously 
 and violently to rob, steal, take 
 and carry away, against the form 
 of the statute," is good. Reg. v. 
 
 prosecutor's father (being a stran- Huxley, Car. & M. 596— Patteson, 
 ger to him), and gave him eleven] A. was indicted in one count for 
 Digitized by Microsoft® 
 
452 
 
 SANITARY LAWS. 
 
 felonioiL-ly assaulting the prosecutor 
 with intent to steal his monies and 
 goods, and in another count for the 
 misdemeanor of attempting to steal 
 the same monies and goods. He 
 was found guilty on the first count ; 
 whereupon his counsel moved in ar- 
 rest of judgment, on the ground 
 that the indictment was bad, by 
 reason of a misjoinder of counts : — 
 Held, that the objection was un- 
 founded, and that A. was properly 
 convicted. Reg. v. Furguson, Dears. 
 
 C. C. 427; IJur., K S. 73 ; 24 L. 
 J., M. C. 61. 
 
 An indictment charged that A. 
 B., in and upon C. D., feloniously 
 did make an assault, and him the 
 said 0. D. in bodily fear and dan- 
 ger of his life did put, and two 
 pieces of current silver coin, from 
 the person and against the will of 
 the said C. D. feloniously and vio- 
 lently did rob, steal, take and carry 
 away ; and that A. B. immediately 
 before, at the time of and immediate- 
 ly after such robbery as aforesaid, did 
 feloniously beat and strike and use 
 other personal violence to said C. 
 
 D. contra formam statuti. The 
 jury found A. B. guilty of assault- 
 ing and beating C. D., with intent 
 to rob him : — Held, that, as the of- 
 fence of assaulting with intent to 
 rob was not expressly stated in the 
 indictment, the prisoner, at common 
 law, could not be convicted ; and 
 secondly, as an assault with intent 
 to rob was made felony by statute, 
 the jury was not at liberty, under 7 
 Will. 4 & 1 Vict. c. 85, s. 11, to 
 find the prisoner guilty of that fel- 
 onious assault. Reg. v. Reid, 5 
 Cox, C.C. 104; 2 Den. C. C. 89. 
 
 6. Punishment of Whipping. 
 
 By 26 & 27 Vict. c. 44, s. 1, 
 " where any person is convicted of 
 " a crime under s. 43 of 24 & 25 
 " Vict. c. 96, or under s. 21 of 24 & 
 " 25 Vict. c. 100, the court before 
 " whom he is convicted may, in ad- 
 " dition to the punishment awarded 
 " by the said sections, or any part 
 
 ' thereof, direct that the offender, 
 ' if a male, be once or twice^ or 
 ' thrice privately whipped, subject 
 ' to the following provisions ; (1), 
 ' that in the case of an offender 
 ' whose age does not exceed sixteen 
 ' years, the number of strokes at 
 ' each such whipping do not exceed 
 'twenty-five, and the instrument 
 ' used shall be a birch rod ; (2), 
 ' that in the case of any other male 
 ' offender, the number of strokes do 
 ' not exceed fifty at each such 
 ' whijDping ; (3) , that in each case 
 ' the court in its sentence shall spec- 
 ' ify the number of strokes to be in- 
 ' flicted and the instrument to be 
 ' used : provided, that in no case 
 ' shall such whipping take place af- 
 ' ter the expiration of six months 
 ' from the passing of the sentence ; 
 ' provided also, that every such 
 ' whipping, to be inflicted on any 
 ' person sentenced to penal servi- 
 ' tude, shall be inflicted on him be- 
 ' fore he shall be removed to a con- 
 ' vict prison, with a view to his un- 
 ' dergoing his sentence of penal 
 ' servitude." 
 
 XXXIV. Sanitary Laws. 
 
 Quarantine.!^ — ^Disobeying the or- 
 ders of the Privy Council with re- 
 spect to the performance of quaran- 
 tine is an offence at common law. 
 Rex V. Harris, 2 Leach, C. C. 549 ; 
 4 T. R. 202. 
 
 Infection.] — A person may be in- 
 dicted for unlawfully and injurious- 
 ly carrying a child infected with the 
 small-pox along a public highway, 
 in which persons are passing, and 
 near to the habitations of the king's 
 subjects. Rex v. VantandJMo, 4 M. 
 & S. 73. 
 
 It is an indictable offence in an 
 apothecary unlawfully and injur- 
 iously to inoculate children with 
 the small-pox, and, while they are 
 sick of it, unlawfully and injurious- 
 
 Digitized by Microsoft® 
 
SEA, OFFENCES AT. 
 
 453 
 
 ly to cause them to be carried along 
 a public street. Rex v. Burnett, 
 4 M. & S. 272. 
 
 To bring a horse infected with the 
 glanders into a public place, to the 
 danger of infecting the Queen's sub- 
 jects, is a misdemeanor at common 
 law, and after verdict an indictment 
 for that offence is good without an 
 averment that the defendant knew 
 that the disease was communicable 
 to men. Meg. v. Henson, Dears. C. 
 C.24. 
 
 XXXV. Sea, Offences at. 
 
 7 Geo. 4. c. 38 ; 7 & 8 Geo. 4, c. 
 28, s. 12 ; 17 & 18 Vict. c. 104, ss. 
 267-270, and 18 & 19 Vict. c. 91, 
 s. 21, " provide for the prosecution 
 " of offences committed on the high 
 " seas and abroad." 
 
 An English ship upon the high 
 seas is to be considered as part of the 
 territory of England ; and therefore 
 a foreigner, who whilst on board 
 such ship commits an offence against 
 the English laws, is amenable to 
 those laws ; and it makes no differ- 
 ence whether he has gone on board 
 voluntarily, or has been taken and 
 detained there against his will. 
 Reg. V. Lopez ; Reg. v. Sattler, 
 Dekrs. & B. C. C. 525 ; 4 Jur., N. 
 S. 98 : 27 L. J., M. C. 48 ; 7 Cox, 
 C. C.'431. 
 
 A person is found within the ju- 
 risdiction of a court of justice, with- 
 in the meaning of the 18 & 19 Vict. 
 c. 91, s. 21, when he is actually 
 present there, whether he has come 
 within such jurisdiction voluntarily,^ 
 or has been brought there against 
 his will. Ih. 
 
 The defendant was convicted on 
 an indictment charging him with 
 assaulting the prosecutors on the 
 high seas, and imprisoning and de- 
 taining them. They were Chilian 
 subjects, and had been ordered by 
 the government of Chili to be ban- 
 ished from that country to England. 
 The defendant being master of an 
 -English merchant vessel lying in 
 
 the territorial waters of Chili, 
 near Valparaiso, contracted with 
 the Chilian government to take 
 the prosecutors from Valparaiso 
 to Liverpool ; and they were ac- 
 cordingly brought on board his 
 vessel by the officers of the gov- 
 ernment, and were carried by the 
 defendant to Liverpool under his 
 contract : — Held, that although the 
 conviction could not be supported 
 for the assault and imprisonment in 
 the Chilian waters, it must be sus- 
 tained for that which was done out 
 of the Chilian territory, and that al- 
 though the defendant was justified 
 in receiving the prosecutors on 
 board his vessel in Chili, yet that 
 justification ceased when he passed 
 the line of Chilian jurisdiction, and 
 the detention of the prisoners and 
 conveying them to Liverjjool was a 
 wrong intentionally planned and 
 executed in pursuance of the con- 
 tract, amounting to a false impris- 
 onment, and triable by English law. 
 Reg. V. Lesley, Bell, C. C. 220 ; 8 
 Cox, C. C. 269 ; 6 Jur., N. S. 202 ; 
 29 L. J., M. C. 97 ; 8 W. R. 220 ; 1 
 L. T., N. S. 452. 
 
 In an indictment preferred at the 
 assizes for a felony committed on 
 the high seas, it is sufiicient to al- 
 lege that the offence was committed 
 on the high seas, without also aver- 
 ring that the offence was committed 
 within the jurisdiction of the Ad- 
 miralty. Reg. V. Jones, 2 C. & K. 
 165; 1 Den. C. C. 191. 
 
 Admiralty Jurisdiction. ] — The 
 criminal jurisdiction of the Ad- 
 miralty of England extends over 
 British ships, not only on the high 
 seas but also in rivers, below the 
 bridges, where the tide ebbs and 
 flows, and where great ships go, 
 though at a spot where the munici- 
 pal authorities of a foreign country 
 might exercise concurrent jurisdic- 
 tion, if invoked. Reg. v. Anderson, 
 38 L. J., M. C. 12; 1 L. K., C. C. 
 161; 19 L. T., N.S. 400; 17 W. 
 R. 208; 11 Cox, C. C. 198. 
 
 Digitized by Microsoft® 
 
454 
 
 SEDITION.— SEPULTURE. 
 
 A foreigner was convicted of 
 manslaughter at the Central Crim- 
 inal Court, committed on board 
 a British vessel, in the river Ga- 
 ronne, within the boundaries of the 
 French Empire, about thirty-five 
 miles from the sea, and at a spot 
 about 300 yards from the nearest 
 shore, vt^ithin the ebb and flow of 
 the tide : — Held, right, inasmuch as 
 it was a place within the jurisdic- 
 tion of the Admiralty of England, 
 which that court had jurisdiction to 
 try under 4 & 5 Will. 4, c. 36, s. 22. 
 lb. 
 
 Offences hy British Subjects on 
 Board Ships.']— Bj 30 & 31 Vict. 
 c. 124, the Merchant Shipping Act, 
 1867, s. 11, " if any British subject 
 '• commits any crime or oifence on 
 " board any British ship or on board 
 " any foreign ship to which he does 
 " not belong, any court of justice 
 " in her Majesty's dominions which 
 " would have cognizance of such 
 " crime or offence, if committed on 
 " board a British ship within the 
 " limits of the ordinary jurisdiction 
 "of such court, shall have jurisdic- 
 " tion to hear and determine the 
 " case, as if the said crime or offence 
 " had been committed as last afore- 
 " said." 
 
 To prove that a ship is a British 
 ship, it is not necessary to produce 
 the register or a copy thereof; it is 
 suiEcient to show orally that she 
 belongs to British owners, and car- 
 ries the British flag. Meg. v. Allen, 
 10 Cox, C. C. 405— Russell Gur- 
 ney. Recorder. 
 
 Oral testimony as to the position 
 of a ship at a given time is better 
 evidence than the production of the 
 log-book. lb. 
 
 XXXVI. Sedition. 
 
 An indictment for sedition alleg- 
 ed " that the defendant, amongst 
 other words and matter, uttered 
 the words and matter following," 
 
 and then set out several sentences, 
 as though they bad been uttered 
 continuously. The evidence shewed 
 that they had not been so uttered, 
 but that the sentences had been se- 
 lected from different parts of the 
 speech, other matter intervening 
 between them : — Held, that there 
 was no variance, and that if any 
 portions of the Speech omitted va- 
 ried or controlled the sense of those 
 set out, the onus was upon the de- 
 fendant to show it. Reg. v. Crowe, 
 3 Cox, C. C. 123— Piatt. 
 
 A prisoner indicted under 1 1 & 
 12 Vict. c. 12, may, after demur- 
 ring to the indictment, if his demur- 
 rer is overruled, plead over to the 
 felony. Reg. v. Duffy, 4 Cox, O. 
 C. 24. But see Reg. v. Hendy, 4 
 Cox, C. C. 243, and Reg. v. Fader, 
 man, 4 Cox, C. C. 385. 
 
 Where an indictment containing 
 counts for sedition, attending a se- 
 ditious meeting and a riot, the court 
 refused to quash the indictment, or 
 compel the counsel for the prosecu- 
 tion to elect, although the judgment 
 on the last count might be different 
 from that upon the others. Reg. v. 
 Fussell, 3 Cox, C. C. 291— Wilde, 
 Parke and Maule. 
 
 The words set out in an indict- 
 ment for sedition were these, " If 
 the Queen neglects to recognize the 
 people, then the people must neg- 
 lect to recognize the Queen. " It 
 was proved that the word " forget" 
 was used in both instances, and not 
 " neglect " :— Held, to be a fatal va- 
 riance as far as that sentence was 
 concerned, and that the passage 
 must be struck out. lb. 
 
 XXXVII. Sepulture. 
 
 1 . Desecration. 
 {See the Anatomy Act, 24-8 
 c. 75.) 
 
 Removing Dead Bodies.] — Taking 
 up dead bodies, even though for 
 the purpose of dissection, is an in- 
 
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SODOMY AND BESTIALITY. 
 
 455 
 
 dictable offence. Reg. v. Lynn, 2 T. 
 R. 733 ; 1 Leach, C. C. 497. 
 
 Selling the dead body of a person 
 capitally convicted for dissection, 
 where dissection was no part of the 
 sentence, was a misdemeanor at 
 common law ; and in order to sup- 
 port an indictment for such offence, 
 it was not necessary that there 
 should be direct evidence that the 
 defendant sold the body for lucre 
 and gain, and for the purpose of be- 
 ing dissected. Rex v. Gundick, D. 
 & R.N. P. C. 13— Graham. 
 
 It is an indictable offence against 
 decency to take a person's dead 
 body with intent to sell or dispose 
 of it for gain and profit. Rex v. 
 Gilks, R. & R. C. C. 336, n. I.— 
 Bayley. And see Rex v. Duffin, 
 R. & R. C. C. 365. 
 
 A master of a workhouse, after 
 shewing the bodies of deceased pau- 
 pers in coffins to their relatives, 
 caused the relatives to follow other 
 coffins to the graves, and the ap- 
 pearance of a funeral to be gone 
 through. The relatives had not re- 
 quired that the bodies should be in- 
 terred without anatomical examina- 
 tion, according to 2 & 3 Will. 4, c. 
 75, s. 7. The master of the work- 
 house then sent the bodies to Guy's 
 Hospital for dissection, and received 
 therefor sums of money in propor- 
 tion to the number of bodies sent. 
 After dissection the bodies were 
 buried. The jury found that the 
 master of the workhouse had caused 
 the appearance of funerals to be 
 gone through, with a view to pre- 
 vent the relatives requiring the bod- 
 ies to be interred without anatomical 
 examination : — Held, that an indict- 
 ment charging the master of the 
 workhouse, in one count, with selling 
 the bodies, in another with taking 
 away the bodies for gain to delay the 
 burial with intent to have them dis- 
 sected, and in a third with intent 
 to sell and dispose of them, could 
 not be sustained, as the master of 
 the workhouse had lawful posses- 
 sion of the bodies within 2 & 3 Will. 
 
 4, c. 75, s. 7, and the relatives had 
 made no request that the bodies 
 should be interred without anatom- 
 ical examination. Reg. v. Feist, 8 
 Cox, C. C. 18 ; Dears. & B. C. C. 
 690 ; 4 Jur., N. S. 541 ; 27 L. J., 
 M. C. 64. 
 
 It is a misdemeanor at common 
 law to remove, without lawful au- 
 thority, a corpse from a grave in a 
 burying-ground belonging to a con- 
 gregation of Protestant dissenters, 
 and it is no defence to such a charge 
 that the motive' of the person re- 
 moving the body was pious and 
 laudable. Reg. v. Sharpe, Dears. 
 & B. C. C. 160 ; 3 Jur., N. S. 192 ; 
 26 L. J., M. C. 47 ; 7 Cox, C. C. 
 214. 
 
 XXXVni. SoDosiY AND Bestial- 
 ity. 
 
 By 24 & 25 Vict. c. 100, s. 61, 
 " whosoever shall be convicted of 
 " the abominable crime of buggery, 
 " committed either with mankind 
 " or with any animal, shall be ha- 
 " able, at the discretion of the court, 
 " to be kept in penal servitude for 
 " life, or for any term not less than 
 " ten years." {Former provision, 9 
 Geo. 4, c. 15, s. 15.) 
 
 By s. 62, " whosoever shall at- 
 " tempt to comnait the said abomi- 
 " nable crime, or shall be guilty of 
 " any assault with intent to commit 
 " the same, or of any indecent as- 
 " sault upon any male person, shall 
 "be guilty of a misdemeanor, and, 
 " being convicted thereof, shall be 
 " liable, at the discretion of the 
 " court, to be kept in penal servi- 
 " tude for any term not exceeding 
 " ten years, and not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour." 
 
 By s. 63, " whenever, upon the 
 " trial, it may be necessary tp prove 
 " carnal knowledge, it shall not be 
 " necessary to prove the actual emis- 
 
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456 
 
 SODOMY AND BESTIALITY. 
 
 " sion of seed in order to constitute 
 " a carnal knowledge, but the car- 
 " nal knowledge shall be deemed 
 " complete upon proof of penetration 
 " only." {Previous provision, 9 Geo. 
 4, c. 31, s. 18.) 
 
 By 9 Geo. 4, c. 31, 25 Hen. 8, c. 
 6, and 5 Eliz. c. 17, were repealed, 
 and hj 21 &25 Vict. c. 95, 9 Geo. 
 4, c. 31, ss. 15, 18, andl Will. 4 & 
 1 Vict. c. 85, s. 1, are repealed. 
 
 Proof of inj actio seminis, as well 
 as penetration, was essential on an 
 indictment for s'odomy. Rex v. 
 Duffin, 1 East, P. 0. 437 ; R. & R. 
 C. C. 365. 
 
 But since 9 Geo. 4, c. 31, s. 18, 
 the crime is comftlete, if the jury 
 is satisfied that penetration took 
 place. Bex v. Reekspear, 1 M. C. C. 
 342 ; Hex V. Oozins, 6 C. &P. 351. 
 It is not allowable to shew that 
 the prisoner has a general disposi- 
 tion, or a natural inclination to com- 
 mit the same kind of offence as that 
 charged against him. Rex v. Cole, 
 1 RusR. C. & M. 939. 
 
 A married woman who consents 
 to her husband's committing an un- 
 natural offence with her, is an ac- 
 complice in the felony, and, as such, 
 her evidence requires confirmation, 
 although consent or non-consent is 
 quite immaterial to the offence. 
 Reg. V. Jellyman, 8 C. & P. 604 — 
 Patteson. 
 
 An indictment for bestiality, 
 which describes the animal as a cer- 
 tain animal called a bitch, is sufS- 
 ciently certain, although the females 
 of foxes and some other animals are 
 called bitches, as well as the female 
 of the dog. Rex v. AUen, 1 C. & 
 K. 495-.Tindal. 
 
 To constitute the offence of sodo- 
 my, the act must be in that part 
 where sodomy is usually committed ; 
 for, the act in a child's mouth does 
 not .constitute the offence. Rex v 
 Jacols, R. & R. C. C. 331. 
 
 An unnatural connexion with an 
 animal of the fowl kind was not sod- 
 omy, before 9 Geo. 4, c. 31, s. 15, a 
 
 fowl not coming under the term , 
 " beast " : [the words of the 9 Geo. 
 4, 0. 31, s. 15, were " any animal "] : 
 and it was agreed clearly not to be 
 sodomy when the fowl was so small 
 that its private parts would not ad- 
 mit those of a man, and were torn 
 in the attempt. Rex v. Mulreaty, 1 
 Russ. O. & M. 938. 
 
 On an indictment against a pris- 
 oner charging him with the capital 
 offence of bestiality, the jury could 
 not find him guilty of an assault 
 under 7 Will. 4 & 1 Vict. c. 85, s. 
 11 ; but if they acquitted him of 
 the capital charge he might be de- 
 tained in custody, and indicted for 
 a misdemeanor, in attempting to 
 commit a felony. Reg. v. Eaton, 8 
 C. & P. 417— Vaughan, Bolland, 
 and Patteson. 
 
 Indictment against two, charging 
 that they, being persons of wicked 
 and unnatural dispositions, did, in 
 an open and a public place, unlaw- 
 fully meet together, with the intent 
 of committing with each other, 
 openly, lewdly, and indecently in 
 that public place, divei's nasty, 
 wicked, filthy, lewd, beastly, unnat- 
 ural, and sodomitical practices, and 
 then and there unlawfully, wicked- 
 ly, openly, lewdly, and indecently 
 did commit with other, in the sight 
 and view of divers of the liege sub- 
 jects, in the said public place there 
 passing, divers such practices as 
 aforesaid, is bad, in arrest of judg- 
 ment, for want of a real certainty. 
 Reg. V. Rowed, 2 G. & D. 518 ; 3 
 Q. B. 180 ; 6 Jur. 396. 
 
 Where an adult and a boy of twelve 
 years of age commit an unnatural 
 offence, the adult being the pathic 
 may be convicted. Beg. v. AUen, 
 1 Den. C. C. 364 ; T. & M. 55 ; 2 
 C. & K. 869 ; 13 Jur. 108 ; 18 L. 
 J., M. C. 72 ; 3 Cox, C. C. 270. 
 
 Where a long period of time, 
 nearly two years, have elapsed from 
 the time of committing the offence 
 of bestiality before complaint is 
 made to the justices, the case will 
 
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SUICIDES. — THREATENING LETTERS. 
 
 457 
 
 not be permitted to go to the jury. 
 Reg. V. Bohins, 1 Cox, C. C. 114— 
 Alderson. 
 
 XXXIX. SuiCIDBS AND SbLF- 
 
 Majming. 
 
 An attempt to commit suicide is 
 a misdemeanor at common law. 
 Beg. V. Doodij, 6 Cox, C. C. 463— 
 Wightman. 
 
 The question for tlie jury is, wheth- 
 er the prisoner had a mind capable 
 of contemplating the act chaijged, 
 and whether he did, in fact, intend 
 to take away his life. lb. 
 
 The mere fact of drunkenness is 
 no excuse for the crime ; but it is a 
 material fact for the jury to consid- 
 er, before coming to the conclusion 
 that the prisoner really intended to 
 destroy his hfe. lb. 
 
 Suicide is not murder within 24 
 
 6 25 Vict. c. 100, ss. 11—15, and 
 therefore attempting to commit su- 
 icide is a misdemeanor triable at 
 quarter sessions. Reg. v. Burgess, 
 L. & C. 258 ; 9 Cox, C. C. 247 ; 
 32 L. J., M. C. 55 ; 11 W. R. 96 ; 
 
 7 L. T., N. S. 472. 
 
 Indictment for murder. Defence, 
 that the deceased committed suicide. 
 Verdict guilty, the jury adding 
 that they beUeved the act was com- 
 mitted without premeditation. The 
 judge refused to receive such a ver- 
 dict, and directed the jury to say 
 guilty or not guilty. Beg. v. Molo- 
 ney, 9 Cox, C. C. 6 — Byles. 
 
 A party who maims himself, or 
 procures another to do it for him, 
 so that he may be bettej- enabled 
 to beg, or to prevent himself from 
 being pressed for a soldier, is liable 
 to fine or imprisonraent at common 
 law. Rex v. Wright, 1 East, P. C. 
 396. ■ 
 
 So is the party by whom it is ef- 
 fected at the other's desire. lb. 
 
 XL. TlTOEATBOTNG LeTTEES AND 
 
 Menaces. 
 
 1. Statutes, 457. 
 
 2. Demanding Money or Valuables 
 
 with Menaces, 457. 
 
 3. Threatening to accuse of Crime, or 
 
 with Intent to Extort, 460. 
 
 4. Letters threatening to Burn or De- 
 
 stroy, 463. 
 
 5. Letters threatening to Murder, 464. 
 
 6. Threatening to sue for Penalties, 
 
 464. 
 
 7. Threatenini/ to Publish Defamatory 
 
 Matter, 464. 
 
 8. Persons Indictable, 465. 
 
 9. Indictment, 465. 
 10. Evidence, 466. 
 
 1. Statutes. 
 4 Geo. 4, c. 64, repealed so much 
 of the Black Act, 9 Geo. 1, c. 22, 
 and so muchof 27 Geo. 2, c. 15, and 
 of 30 Geo. 2, c. 24, as related to this 
 subject ; and by 7 & 8 Geo. 4, c. 27, 
 4 Geo. 4, c. 64, was repealed so far 
 as it related to letters threatening to 
 kill, murder, burn, and destroy, and 
 to accessories to such offences, and 
 rescue of such offenders ; 24 & 25 
 Vict. c. 95 repeals 4 Geo. 4, c. 64 ; 
 7 & 8 Geo. 4, c. 29 ; 7 Will. 4 & 1 
 Vict. c. 87, and 10 & 11 Vict. c. 66 ; 
 24 & 25 Vict. c. 96, is the statute in 
 force on the subject. 
 
 2. Demanding Money or Valuables, 
 with 
 
 By 24 & 26 Vict. c. 96, s. 44, 
 ' whosoever shall send, deliver, or 
 ' utter, or directly or indirectly 
 ' cause to be received, knowing the 
 ' contents thereof, any letter or 
 ' writing, demanding of any person, 
 ' with menaces, and without any 
 ' reasonable or probable cause, any 
 ' property, chattel, money, valuable 
 
 ■ security, or other valuable thing, 
 
 ■ shall be guilty of felony, and, being 
 
 • convicted thereof, shall be liable, , 
 ' at the discretion of the court, to 
 
 • be kept in penal servitude for life, 
 
 ■ or for any term not less than five 
 
 • years (27 & 28 Vict. c. 47), or to 
 
 ■ be imprisoned for any term not 
 
 ■ exceeding two years, with or with- 
 ' out hard labour, and with or 
 
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458 
 
 THREATENING LETTERS. 
 
 " without solitary confinement, and, 
 " if a male under the age of sixteen 
 " years, with or without whipping." 
 {^Former provision, 7 & 8 Geo. 4, c. 
 29, s. 8.) 
 
 By s. 45, " whosoever shall, with 
 " menace or by force, demand any 
 " property, chattel, money, valuable 
 " security, or other valuable thing 
 " of any person, with intent to steal 
 " the same, shall be guilty of felony, 
 " and, being convicted thereof shall 
 " be liable, at the discretion of the 
 " court, to be kept in penal servi- 
 "tude. for the term of five years 
 " (27 & 28 Vict. c. 47), or to beim- 
 " prisoned for any term not exceed- 
 " ing two years, with or without 
 " hard labour, and with or without 
 " solitary confinement." {Previous 
 provisiori, 7 Will. 4 & 1 Vict. c. 87, 
 6S. 7, 12.) 
 
 By s. 49, "it shall be immaterial 
 " whether the menaces or threats^be 
 " of violence, injury, or accusation, 
 " to be caused or made by the of- 
 " fender, or by any other person." 
 
 A letter written to the prosecut- 
 ors in the following terms : " Gen- 
 tlemen, You say that B. O. N. will 
 accede to the terms proposed, and 
 send part of the money to any place 
 that may be named. I must have 
 suflicient means at my disposal, or 
 all will be lost. I am fully assured 
 that 20,000Z. will not cover the hor- 
 rid catastrophe, which would not 
 only stop your bank for a time, but 
 perhaps forever, as the books would 
 be all destroyed. The match, the 
 most dreadful and last resource, has 
 been contemplated by the cracks- 
 man or captain of this most horrid 
 gang, which I fervently pray to be 
 relieved from." The letter then, 
 after pointing out a certain jjipe, be- 
 , hind which the money was to be 
 deposited, proceeded, " If, therefore, 
 you will send a man you can con- 
 fide in, and lodge under that pipe 
 250 sovereigns unseen by mortal 
 eye, I swear by Almighty God, 
 most solemnly, that the evil to 
 which I have alluded shall be avert- 
 
 ed. Let the money be lodged to- 
 morrow, Saturday morning, by half- 
 past eleven, but not one moment 
 sooner, and all shall be well with 
 you ; but if I am at all deceived, in 
 any possible way, all must fall upon 
 yourselves " : was a letter demand- 
 ing money, with menaces, within 7 
 & 8 Geo. 4, c. 29, s. 8, although the 
 writer did not hold out any threat 
 that he himself would do any mis- 
 chief. Beg. V. Smith, T. & M. 214 ; 
 1 Den. C. C. 510 ; 2 C. & K 882 ; 
 14 Jur. 92 ; 19 L. J., M. C. 80 ; 4 
 Cox, C, C. 42. 
 
 The doctrine that the threat held 
 out must be such as would be like- 
 ly to intimidate a firm man, and 
 not merely a person of a timid dis- 
 position, must be taken to refer to 
 the nature of the threat, and not to 
 the nerves of the party to whom it 
 is addressed. Ih. 
 
 The words, without any reason- 
 able or probable cause, in 7 & 8 
 Geo. 4, c. 29, s. 8, concerning send- 
 ing threatening letters, apply to the 
 money demanded, and not to the 
 accusation threatened to be made. 
 Reg. V. Hamilton, 1 C. & K. 212 — 
 Rolfe and WilUams. 
 
 In a threatening letter, the threat 
 must be direct and plain. Hex v. 
 Girdwood, 1 Leach, C. C. 142; 2 
 East, P. G. 1120. 
 
 An anonymous letter stated, that 
 the writer had overheard certain 
 persons agree together to do an in- 
 jury to the person or property of 
 the prosecutor, to whom the letter 
 was sent ; and that if thirty sover- 
 eigns were laid in a particular place, 
 the writer would give such infor- 
 mation as would frustrate the at- 
 tempt :— Held, that this was not a 
 threatening letter within 7 & 8 
 Geo. 4, c. 29, s. 8, although it ap- 
 peared that the letter was a mere 
 device to defraud the prosecutor of 
 thirty sovereigns. Rex v. Pickford, 
 4 C. & P. 227-Bolland. 
 
 It is no answer to a charge of 
 sending threatening letters, that the 
 contents would lead the party to 
 
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DEMANDING MONEY. 
 
 459 
 
 suspect who wrote the letter, unless 
 it is shewn that the prisoner did not 
 mean to conceal himself. Hex v. 
 Wagstaff, li. & R. C. C. 398. 
 
 A threatening letter referring, in 
 the terms of it, to such circumstan- 
 ces as were plainly intended to de- 
 note who the writer was, and mak- 
 ing a demand of a sum of money in 
 controversy between him and the 
 prosecutor, which the latter had re- 
 ceived, and which the former had 
 before insisted should be accounted 
 for to him, was not a threatening 
 letter within 9 Geo. 1, c. 22, or 27 
 Geo. 2, c. 15, although the writer 
 did not subscribe his name. Hex v. 
 Heming, 2 East, R C. 1116; 1 
 Leach, C. C. 445, n. 
 
 It is for the jury and not for the 
 court to determine whether or not 
 the letter is a threatening one with- 
 in the statute, and the judge will 
 not withdraw it from their consid- 
 eration, unless by no possible con- 
 struction can it be held to involve a 
 threat. Meg. v. Garnithers, 1 Cox, 
 C. C. 138— Maule. 
 
 The words, without any reason- 
 able and probable cause, in 7 & 8 
 Geo. 4, c. 29, s. 8, must be taken to 
 apply to the state of the prisoner's 
 mind at the time of making the de- 
 mand; and the jury must look at 
 all the circumstances for the pur- 
 pose of deciding whether at "that 
 time the prisoner bona fide believed 
 that she or he had reasonable cause. 
 Beg: V. Miard, 1 Cox, C. C. 22— 
 Tindal. 
 
 Threatening to expose a clergy- 
 man who had had criminal inter- 
 course with a woman in a house of 
 ill-fame, in his own church and vil- 
 lage, to his own bishop, to all the 
 other bishops, and to the Arch- 
 bishop of Canterbury ; and also to 
 publish his shame in the newspa- 
 pers, is such a threat as a man of or- 
 dinary firmness cannot be expected 
 to resist, and therefore falls within 
 the word menaces used in the stat- 
 ute, lb. 
 
 Where a person demanded a shil- 
 ling from the prosecutor, and, on 
 being refused, became very abusive, 
 and threatened to burn up the pros- 
 ecutor, and then proceeded to make 
 an attempt to set fire to a stack of 
 his : — Held, that he was liable to be 
 indicted for demanding money by 
 menaces, under 7 Will. 4 & 1 Vict, 
 c. 87, s. 7. Reg. v. Taylor, 1 F. & 
 P. 511- Pollock. 
 
 To constitute the ofience of de- 
 manding money with menaces, un- 
 der 24 "& 25 Vict. c. 96, s. 45, the 
 menace or threat must be of a char- 
 acter to produce in a reasonable 
 man some degree of alarm or bod- 
 ily fear, and such alarm must be of 
 a nature and extent to unsettle the 
 mind upon which it operates, and 
 take away that free voluntary ac- 
 tion which constitutes consent. Reg. 
 V. Walton, 9 Cox, C. C. 268 ; L. & 
 C. 288 ; 9 Jur., N. S. 259 ; 32 L. ' 
 J., M. C. 79 ; 11 W. R. 348 ; 7 L. 
 T., N. S. 754. 
 
 A threat to imprison a man upon 
 a fictitious charge is a menace with- 
 in 24 & 25 Vict. c. 96, s. 45. Reg. 
 V. Robertson, L. & C. 483 ; 10 Cox, 
 C. C. 9; 11 Jur.,N.S. 96; 34 L. 
 J., M. C. 35 ; 13 W. R. 101 ; 11 L. 
 T.,N. S. 386. 
 
 A conviction under that section 
 is good, although the money has 
 been actually obtained. lb. 
 
 A prisoner was convicted for de 
 manding money with menaces, with 
 ii^tent to steal the same. The pros- 
 ecutor, having spoken to a female 
 in the street, at night, the prisoner, 
 a policeman, came up, and told 
 him he had been talldng to a pros- 
 titute, and that he must go with 
 him to Bridewell, and that he, the 
 prosecutor, was under a penalty of . 
 \l. and costs, for talking to a pros- 
 titute in the streets ; but if he would 
 give him 5s. he might go about 
 his business. The prosecutor there- 
 upon gave him 4s. M. : — Held, that 
 the conviction was right. lb. 
 
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460 
 
 THREATENING LETTERS. 
 
 3. Threatening to accuse of Crime, 
 or with Intent to Extort. 
 By 24 & 25 Vict. c. 96, s. 46, 
 " whosoever shall send, deliver or 
 " utter, or directly or indirectly 
 " cause to he received, knowing the 
 " contents thereof, any letter or 
 " writing accusing or threatening to 
 " accuse any other person of any 
 " crime punishable by law with 
 " death or penal servitude for not 
 " less than seven years, or of any 
 " assault with intent to commit any 
 " rape, or of any attempt or en- 
 " deavour to commit any rape, or 
 " of any infamous crime as herein- 
 " after defined, with a view or in- 
 " tent, in any of such cases, to ex- 
 " tort or gain by means of such let- 
 " ter or writing any property, ohat- 
 " tel, money, valuable security or 
 " other valuable thing from any 
 " person, shall be guilty of felony, 
 " and, being convicted thereof, 
 " shall be liable, at the discretion 
 " of the court, to be kept in penal 
 " servitude for life, or for any term 
 " not less than five years (27 & 28 
 " Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard la- 
 " bour, and with or without solitary 
 " confinement, and, if a male under 
 " the age of sixteen years, with or 
 " without whipping ; 
 
 " And the abominable crime of 
 " buggery, committed either with 
 " mankind or with beast, and every 
 " assault with intent to commit the 
 " said abominable crime, and every 
 " attempt or endeavour to commit 
 " the said abominable crime, and 
 " every solicitation, persuasion, pro- 
 " mise or threat offered or made to 
 " any person whereby to move or 
 " induce such person to commit or 
 " permit the said abominable crime, 
 " shall be deemed to be an infamous 
 " crime within the meaning of this 
 " act." {Former provisions, 7 & 8 
 Geo. 4, c. 29, s. 8, and 10 & 11 
 Vict. c. 66, s. 1.) 
 
 By s. 57, " whosoever shall ac- 
 " cuse, or threaten to accuse, either 
 
 " the person to whom such accusa- 
 " tion or threat shall be made, or 
 " any other person, of any of the in- 
 " famous or other crimes lastly 
 " hereinbefore mentioned, with the 
 " view or intent, in any of the cases 
 " last aforesaid, to extort or gain 
 " from such person so accused or 
 " threatened to be accused, or from 
 •' any other person, any property, 
 " chattel, money, valuable security 
 " or other valuable thing, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for life, or 
 " for any term not less than five 
 " years (27 &• 28 Vict. c. 47), or to 
 " be imprisoned for any term not 
 " exceeding two years, with or with- 
 " out hard labour, and, if a male un- 
 " der the age of sixteen years, with 
 " or without whipping." {JPrevious 
 provision, 10 & 11 Vict. c. 66, s. 2.) 
 By s. 48, " whosoever, with in- 
 " tent to defraud or injure any 
 " other person, shall, by any unlaw- 
 " ful violence to or restraint of, or 
 " threat of violence to or restraint 
 " of, the person of another, or by ac- 
 " cusing or threatening to accuse 
 " any person of any treason, felony, 
 " or infamous crime as hereinbefore 
 " defined, compel or induce any 
 " person to execute, make, accept, 
 " indorse, alter or destroy the whole 
 " or any part of any valuable secu- 
 " rity, or 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 or to any paper or 
 " parchment, in order that the same 
 " may be afterwards made or con- 
 " verted into, or used or dealt with 
 " as a valuable security, shall be 
 " guilty of felony, and, being con- 
 " victed thereof, shall be liable, at 
 " the discretion of the court, to be 
 " kept in penal servitude for life, or 
 " for any term not less than five 
 " years (27 & 28 Vict. c. 47), or to 
 "be imprisoned for any term no^ 
 
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THREATENING TO ACCUSE OF CRIME. 
 
 461 
 
 " exceeding two years, witli or 
 " without hard labour, and with or 
 " without solitary confinement. 
 
 By p. 49, " it shall be immaterial 
 " whether the menaces or threats 
 " hereinbefore mentioned be of vio- 
 " lence, injury or accusation, to be 
 " caused or made by the offender or 
 " by any other person." 
 
 On the trial of an indictment for 
 threatening to accuse of an infamous 
 crime in order to extort money, the 
 guilt or innocence of the party 
 threatened is quite immaterial. Reg. 
 V. Graekndl, 10 Cox, C. C. 408— 
 Willes. 
 
 Therefore, although the prosecu- 
 tor may be cross-examined with a 
 view to shew that he is really guilty 
 of the offence imputed to him, yet 
 no evidence will be allowed to be 
 given, even in cross-examination, 
 by another witness, to prove that 
 the prosecutor is really guilty. Ih. 
 
 On an indictment for threatening 
 to publish certain matter with in- 
 tent to extort money, it is not nec- 
 essary that the matter should be 
 libellous. Keg. v. Coghlan, 4 F. & 
 F. 316— Bram well. 
 
 An intent to extort money may 
 be implied from the circumstances, 
 and does not require an express de- 
 mand of money. lb. 
 
 But, if it appears that the object 
 is to compel the delivery of ac- 
 counts of monies honestly believed 
 to be due and owing, there is no ev- 
 idence of the intent. lb. 
 
 A person threatening A.'s father 
 that he would accuse A. of having 
 committed an abominable offence 
 upon a mare, for the purpose of put- 
 ting off the mare, and forcing the 
 father, under terror of the threat- 
 ened charge, to buy and pay for 
 her at the prisoner's price, is guilty 
 of threatening to accuse with intent 
 to extort money, within 24 & 25 
 Vict. c. 96, s. 47. Reg. v. Redman, 
 10 Cox, C. C. 159 ; 1 L. R., C. C. 
 12 ; 35 L. J., M. C. 83 ; 14 W. R. 
 56; 11 Jur., N. S. 960 ; 13 L. T., 
 N. S. 303. 
 
 Where a prisoner is indicted for 
 feloniously sending a letter, threat- 
 ening to accuse , of an infamous 
 crime, with intent to extort money, 
 both the threat and the intent may 
 be inferred, even against the declar- 
 ation of the prisoner at the time, 
 and in the absence of express proof, 
 from the letter itself, from his pre- 
 vious and contemporaneous, and 
 even from his subsequent conduct 
 and expressions to third parties. 
 Reg. V. Menage, 3 F. & F. 310— 
 Martin. 
 
 The threatening to accuse, under 
 7 & 8 Geo. 4, c. 29, s. 8, need not 
 be a threat to accuse before a judic- 
 ial tribunal ; a threat to charge be- 
 fore any third person is enough. 
 Rex V. Robinson, 2 M. & Rob. 14 ; 
 2 Lewin, C. C. 273— Patteson. 
 
 On the trial of an indictment for 
 threatening to accuse a perspn of an 
 abominable crime, with intent to 
 extort money, and, by intimidating 
 the party by the threat, in fact ob- 
 taining the money, the jury need 
 not confine themselves to the con- 
 sideration of the expressions used 
 before the money was given, but 
 may, if those expressions are equiv- 
 ocal, connect with them what was 
 afterwards said by the prisoner 
 when he was taken into custody. 
 Reg. V. Katn, 8 C. & P. 187— Park 
 and Parke. 
 
 Where it was proved that a pris- 
 oner, to obtain monies, said to the 
 prosecutor, " If you do not assist 
 me, I will say you took indecent 
 liberties with me some time ago " : 
 — Held, not sufficient to sustain a 
 count which charged that he threat- 
 ened to accuse the prosecutor of 
 having attempted and endeavoured 
 to commit with him the abominable 
 crime. Reg. v. Norton, 8 C. & P. 
 671 — Recorder Law. 
 
 A prisoner was indicted under 7 
 & 8 Geo. 4, c. 29, s. 8, in a first 
 count, for feloniously accusing A. of 
 a certain infamous Crime, that is to 
 say, of having made to the prisoner 
 a certain solicitation, whereby to 
 
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462 
 
 THREATENING LETTERS. 
 
 move and induce the prisoner to 
 commit with him, the crime of sod- 
 omy, with a view to extort and 
 gain money from him ; second 
 count, charging the same offence 
 somewhat differently : — Held, that 
 the evidence was not sufficient to 
 prove the intent laid. Reg. v. Mid- 
 dleditch, 1 Den. C. C. 92. 
 
 An indictment on 30 Geo. 2, c. 
 24, for sending a threatening letter, 
 intending to extort and gain money, 
 could not be supported by shewing 
 a letter threatening to accuse the 
 prosecutor of an unnatural crime, if 
 he did not give up a certain bill 
 drawn by the prisoner, of which the 
 prosecutor was the holder. JRex v. 
 Major, 2 East, P. C. 1118; 2 Leach, 
 C. C. 772. 
 
 Sending a letter threatening to 
 accuse the prosecutor of having 
 made overtures to the prisoner to 
 commit sodomy with him, did not 
 threaten to charge such an infamous 
 crime as to be within 4 Geo. 4, c. 
 54, s. 3. Rex v. JETichnan, 1 M. C. 
 C. 34. 
 
 On a charge of threatening to ac- 
 cuse of an infamous crime, it ap- 
 peared that the prisoner had made 
 a charge before a magistrate against 
 the prosecutor of endeavouring to 
 excite one of them to the commis- 
 sion of an unnatural offence : — Held, 
 that the depositions of the prisoners 
 upon that occasion were admissible 
 against them. Reg. v. Braynell, 4 
 Cox, C. C. 402— Williams. 
 
 When before the magistrate the 
 prisoners were separately cross-ex- 
 amined as to their being together on 
 the day when the offence was al- 
 leged to have been committed, how 
 they had been occupied, <fcc., and 
 their answers were so contradictory 
 in themselves and so inconsistent 
 with each other, that the magistrate 
 dismissed the charge against the 
 then defendant, and bound him 
 over to prosecute the prisoner for 
 endeavouring to extort money by 
 threats : — Held, that the answers 
 
 elicited on such cross-examination 
 were not admissible. Ih. 
 
 Where the charge made by the 
 prisoners was one specifically of an 
 indecent assault : — Held, that it was 
 for the jury to take into their con- 
 sideration not only the charge itself, 
 but the conduct of the prisoners gen- 
 erally, for the purpose of deciding 
 what was the nature of the accusa- 
 tion they intended to prefer. lb. 
 
 Whether the crime of which the 
 prisoner was accused by the prose- 
 cutor was actually committed is not 
 material in this, that the prisoner 
 is equally guilty if he intended by 
 such accusation to extort money. 
 Reg. V. Richards, 1 1 Cox, C. C. 43 
 — Blackburn. 
 
 But it is material in considering 
 the question whether, under the cir- 
 cumstances of the case, the inten- 
 tion of the prisoner was to extort 
 money, or merely to compound a 
 felony. lb. 
 
 Upon an indictment for sending 
 a letter demanding money, with 
 menaces, and without reasonable or 
 probable cause, it appeared that the 
 prisoner, who had been in the pros- 
 ecutor's employ as traveller, had af- 
 terwards set up in business for him- 
 self, married, and became the father 
 of children. There was no evidence 
 of the prosecutor having indulged 
 in the slightest familiarity with the 
 prisoner's wife, or of the prisoner 
 having at any time any ground to 
 suspect that such had been the case, 
 and the prosecutor denied it; but 
 the prisoner sent to him letters im- 
 puting to the prosecutor adultery 
 with his wife, that he was the father 
 of one of his children, stating that 
 many a man would have sent a 
 bullet through him, that he was to 
 refund 44Z. The judge left to the 
 jury whether the meaning of the 
 letters ,was to demand a sum of 
 money, and to menace him with 
 adultery, or to send the child to the 
 prosecutor's house; and whether 
 there was any reasonable or prob- 
 
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THREATENING TO BURN OR DESTROY. 
 
 463 
 
 able cause for the demand of the 
 money, or for any of the charges, 
 on all of which questions they 
 foilnd against the prisoner, and 
 found him guilty : — Held, that the 
 letters implied a threat either of 
 bodily violence, or to charge the 
 prosecutor with adultery, or to send 
 the child to his house, and that the 
 conviction was right. Reg. v. Chal- 
 mers, 16 L. T., N. S. 363 ; 15 W. R. 
 773 ; C. C. R. 
 
 4. Letters Threatening to Bum or 
 X Destroy. 
 
 By 24 & 25 Vict. c. 97, s. 50, 
 '' whosoever shall send, deliver or 
 " utter, or directly or indirectly cause 
 " to be received, knowing the con- 
 " tents thereof, any letter or writing 
 " threatening to burn or destroy any 
 " house, barn or other building, or 
 " any rick or stack of grain, hay or 
 " straw, or other agricultural pro- 
 " duce, or any grain, hay or straw, 
 " or other agricultural produce, in 
 " or under any building, or any ship 
 " or vessel, or to kill, maim or 
 " wound any cattle, shall be guilty 
 " of felony, and, being convicted 
 " thereof, shall be liable, at the dis- 
 " cretion of the court, to be kept in 
 " penal servitude for any term not 
 " exceeding ten years and not less 
 " than five years (27 & 28 Vict. c. 
 " 47), or to be imprisoned for any 
 " term not exceeding two years, 
 " with or without hard labour, and 
 " with or without soUtary confine- 
 " ment, and, if a male under the 
 " age of sixteen years, with or with- 
 " out whipping." {Former pro- 
 visions, 4 Geo. 4, c. 54, s. 3, and 10 
 & 11 Vict. c. 66, s. 1.) 
 
 Sending a letter to A. threatening 
 to burn a house of which he was 
 owner, but let by him to, and occu- 
 pied by a tenant, was not an of- 
 fence within 4 Geo. 4, c. 54, s. 3. 
 Beg. V. Burridge, 2 M. & Rob. 296 
 — Maule. 
 
 Indictment for sending a threat- 
 
 ening letter under 4 Geo. 4, c. 54, 
 s. 3. First count charged G. with 
 sending to R., and threatening to 
 burn R.'s houses. It was proved 
 that R. had only a reversionary in- 
 terest in these houses, Quaere, 
 whether G. could be convicted on 
 that count. Reg. v. Ch'imwade, 1 
 Den. C. C. 30 ; 1 C. & K. 592 ; 1 
 Cox, C. C. 85. 
 
 A count cliarged G. with sending 
 to R. and threatening to burn the 
 said houses, laying them as the 
 property of B., the tenant. It was 
 proved that G. dropped the letter in 
 a public road near R.'s house ; that 
 A. found it and gave it to H., who 
 opened and read it, and gave it to 
 E., who shewed it to both B. and 
 R. : — Held, that this was a sending 
 within 4 Geo. 4, c. 54, 's. 3. Ih. 
 
 Sending a letter threatening to 
 burn standing corn was not an of- 
 fence within 4 Geo. 4, c. 54, s. 3. 
 Reg. V. HiU, 5 Cox, C. C. 233— 
 Pollock. 
 
 An indictment on 4 Geo. 4, c. 54, 
 s. 3, charging that the prisoner sent 
 a letter to T. L., threatening to 
 burn the house of J. R., was bad — 
 as the threat must be to the owner 
 of the property ; and if the letter 
 was sent to T. L., with intent that 
 it should reach J. R., and did reach' 
 him, it should have been charged in 
 the indictment as sent to J. R. 
 Reg. V. Jones, 2 C. & K. 398 ; 1 
 Den. C. C. 218 ; Reg. v. Grimwade, 
 1 Cox, C. C. 67. 
 
 A conviction on 27 Geo. 2, c. 15, 
 for sending a letter to the prose- 
 cutor, threatening " to set iire to 
 his mill, and likewise to do all the 
 pubhc injury they were able to 
 him, in all his farms and seteres," 
 was wrong, when the prosecutor 
 had not then any mill to which the 
 threat of burning would apply ; 
 (having parted with it three .years 
 before) ; and the threat as to the 
 farm, &c., not necessarily implying 
 a burning. Reg. v. Jepsoti. 2 East, 
 P. C. 1115. 
 
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464 
 
 THREATENnsTG LETTERS. 
 
 5. Letters threatening to Mivrder. 
 
 By 24 & 25 Vict. c. 100, s. 16, 
 " whosoever shall maliciously send, 
 " deliver or utter, or directly or in- 
 " directly cause to be received, 
 " knowing the contents thereof, any 
 " letter or writing threatening to 
 " Hll or murder any person, shall 
 " be guilty of felony, and, being 
 " convicted thereof, shall be liable, 
 •' at the discretion of the court, to 
 " be kept in penal servitude for any 
 " term not exceeding ten years, and 
 " not less than five years (27 & 28 
 " Vict. c. 47), or to be imprisoned 
 " for any term not exceeding two 
 " years, with or without hard la- 
 " bour, and with or without solitary 
 " confinement, and, if a male un- 
 " der the age of sixteen years, with 
 " or without whipping." {Former 
 provisions, 4 Geo. 4, c. 54, s. 3, and 
 10 & 11 Vict. c. 66, s. 1.) 
 
 A letter signed, " I am your Cut- 
 throat," and stating, that if the 
 person to whom it was sent had his 
 deserts, he would not live the week 
 out ; and that the writer would be 
 with him shortly, and if he made 
 light of it the writer would make 
 light of him and his, so plainly con- 
 veys a threat to kill and murder, as 
 to render it unnecessary to insert 
 either innuendos or prefatory allega- 
 tions in the indictment to explain 
 its meaning. Rex v. Boucher, 4 
 C. & P. 562— Patteson. 
 
 The intentionally putting a threat- 
 ening letter in a place where it is 
 likely to be seen and read by the 
 party to whom it is directed, or to 
 be found by some other person, and 
 which is in fact so found and con- 
 veyed to the party, was an uttering 
 of the letter within 10 & 11 Vict. 
 c. 66, s. 1. Meg. v. Jones, 5 Cox, 
 C. C. 226— Patteson. 
 
 6. Threatening to Sue for Penalties. 
 
 Threatening by letter, or other- 
 wise, to put in motion a prosecution 
 by a public officer, to recover pen- 
 alties for selling Fryer's Balsam | 
 
 without a stamp (which by 42 Geo. 
 3, c. 36, was prohibited to be vend- 
 ed without a stamped label), for 
 the purpose of obtaining money to 
 stay the prosecution, is not such a 
 threat as a firm and a prudent man 
 may not be expected to resist, and 
 therefore is not in itself an indict- 
 able ofience at common law, al- 
 though it is alleged that the money 
 was obtained ; no reference being 
 made to any statute which prohibits 
 such attempt. Rex v. Soiitherton, 
 6 East, 126 ; 2 Smith, 305. 
 
 But it seems that such an offence 
 is indictable upon 18 EUz. c. 5, s. 4, 
 for regulating common informers, 
 which prohibits the taking.of mon- 
 ey, wilJiout consent of court, under 
 colour of process, or without pro- 
 cess, from any person upon pretence 
 of any ofience against a penal law. 
 Ih. 
 
 But no indictment for any at- 
 tempt to commit such a statutable 
 misdemeanor can be sustained as a 
 misdemeanor at common law, with- 
 out at least bringing the oflTence in- 
 tended within, and laying it to be 
 against, the statute. lb. 
 
 Though if the party so threatened 
 had been alleged to be guilty of the 
 ofience imputed within the statute 
 imposing the duty and creating the 
 penalty, such an attempt to com- 
 pound and stifle a public prosecu- 
 tion for the sake of private lucre, in 
 fraud of the revenue, and against 
 the policy of the statute, which 
 gives the penalty as auxiliary to the 
 revenue, and in furtherance of pub- 
 lic justice for example's sake, might 
 also, upon general principles, have 
 been deemed a sufiicient ground to 
 sustain the indictment at common 
 law. Ih. 
 
 7. Threatening to publish Defam- 
 atory Matter. 
 
 By 6 & 7 Vict. c. 96, s. 3, « if 
 " anyperson shall publish, or threat- 
 " en to publish, any libel upon any 
 " other person, or shall, directly or 
 
 Digitized by Microsoft® 
 
INDICTMENT. 
 
 465 
 
 An 
 
 "indirectly threaten to print or 
 " publish, or shall directly or indi- 
 " rectly propose to abstain from 
 " printing or publishing, or shall di- 
 " rectly or indirectly oii'er to pre- 
 " vent the printing or publishing of 
 " any matter or thing touching any 
 " other person, with intent to extort 
 " any money or security for money, 
 " or any valuable thing from such 
 " or any other person, or with in- 
 " tent to induce any person to 
 " confer or procure for any per- 
 " son any appointment or office 
 " of profit or trust, every such of- 
 " fender, on being convicted there- 
 " of, shall be li^le to be impris- 
 " oned, with or without hard la- 
 " bour, in the common gaol or 
 " house of correction for any term 
 " not exceeding three years : pro- 
 " vided always, that nothing here- 
 " in contained shall in any manner 
 " alter or affect any law now (1843) 
 " in force in respect of the sending 
 " or delivery of threatening letters 
 " or writings." 
 
 Counts under this section, charg- 
 ing the defendants with unlawfully 
 offering to prevent the publishing, 
 and with threatening to publish 
 certain matters touching the prose- 
 cutor, with intent to extort money, 
 are not supported by evidence, that 
 they attempted to obtain the money 
 by leading the prosecutor to be- 
 lieve that an information would be 
 laid against him by one G., for an 
 oifence relating to the post-horse 
 duties, and that they had the means 
 of preventing the proceedings, and 
 would prevent it on being paid a 
 sum of money. Reg. v. Totes, 6 
 Cox, C. C. 441. 
 
 8. Persons Indictable. 
 Where a wife wi'ote a threaten- 
 ing letter, and the husband carried 
 it to the party threatened : — Held, 
 that the husband, though privy to 
 the writing, was not within 9 Geo. 
 1, c. 22, and 27 Geo. 2, c. 15, nor 
 could the wife alone be convicted 
 unless she wrote and sent it without 
 
 Fish. Dig.— 34. qj^hj^^^ ^y Microsoft® 
 
 the husband who delivered it being 
 privy to the contents. Hex v. Ham- 
 mond, 2 East, P. C. 1119 ; 1 Leach, 
 C. C. 444. 
 
 9. Indictment. 
 
 indictment on 4 Geo. 4, c. 
 54, s. 5, for demanding money, 
 must have distinctly shewn by whom 
 it was demanded. Hex v. DunMei/,' 
 1 M. C. C. 90. 
 
 And an indictment on the same 
 statute by threatening to accuse, 
 &c., must have positively shewn 
 who was threatened. lb. 
 
 On an indictment for threatening 
 to accuse of an infamous crime, 
 with intent to extort a certain se- 
 curity for money, it is not necessary 
 to aver to whom the security be- 
 longed. Seff. V. Tiddeman, 4 Cox, 
 C. C. 387. 
 
 An indictment for sending a 
 threatening letter must set out the 
 letter. Bex v. Lloyd, 2 East, P. C. 
 1122; S. P., Reg. v. Hunter, 2 
 Leach, C. C. 624. 
 
 The offence of sending a threaten- 
 ing letter may be laid in the county 
 where it is delivered by the post to 
 the prosecutor. Rex v. Esser, 2 
 East, P. C. 1125 ; S. P., Rex v. 
 Girdwood, 2 East, P. C. 1120; 1 
 Leach, C. C. 142. 
 
 An indictment, charging • that a 
 prisoner " did feloniously and ma- 
 liciously, with intent to extort mon- 
 ey, charge and accuse A. with hav- 
 ing committed the horrible and de- 
 testable crime, and feloniously, &c., 
 menace and threaten to prosecute 
 the said A.," was not good under 4 
 Geo. 4, c. 54, s. 3. Rex v. Abgood, 
 2 C. & P. 436— Garrow. 
 
 An indictment for sending a 
 threatening letter stated that one R. 
 had lately built and completed a 
 house; and then charged that the 
 prisoner feloniously sent to one L. a 
 certain letter, threatening to' burn 
 the house so built by the said R. 
 Upon objection taken that the in- 
 dictment ought to have charged a 
 sending to R. : — Held, that the in- 
 
466 
 
 THREATENING LETTERS. 
 
 dictment was bad on that ground. 
 Beg. V. Jones, 2 Cox, 0. C. 434— 
 C. C. R. 
 
 10. Evidence. 
 
 Inspection of Letter. 1 — If a party 
 is indicted for sending a threatening 
 letter, the court will, on motion of 
 the prisoner's counsel, as soon as 
 the bill is found, order that the let- 
 ter be deposited with the officer of 
 the court, that the prisoner's wit- 
 nesses may inspect it. Rex v. Har- 
 rie, 6 C. & P. 105— Littledale and 
 BoUand. 
 
 Of Sending.] — A letter, signed 
 by two initials, as R. R., was a let- 
 ter without a name subscribed 
 thereto within 9 Geo. 1, c. 22. Rex 
 V. Robinson, 2 Leach, C. C. 749 ; 2 
 East, P. C.UIO. 
 
 The bare delivery of a letter con- 
 taining threats, though sealed, is 
 evidence of a knowledge of its con- 
 ■tents. Rex v. Girkwood, 1 Leach, 
 C. C. 142; 2 East, P. C. 1120. 
 
 Indictment, with three counts for 
 three separate letters. It was pro- 
 posed to prove the sending of all 
 three : — Held, that evidence of one 
 onlv was admissible. Reg. v. Ward, 
 10 Cox, C. C. 42— Byles. 
 
 To bring the offence of sending a 
 threatening letter within 27 Geo. 2, 
 .c. 15, the letter must have been 
 sent to the person threatened, and 
 it must have been so stated in the 
 indictment Rex v. Paddle, R. & 
 R. C. C. 484. 
 
 But it seems, that sending the 
 letter to A., in order that he may 
 deliver it to B., is a sending to B., 
 if the letter was delivered by A. to 
 B. Ih. 
 
 If a letter threatening to burn 
 the premises of A., but directed to 
 B., is left at the gate on a public 
 highway, with the intention that it 
 should reach as well A. as B., that 
 was a sending to A. within 4 Geo. 
 4, c. 54, s. 3. Reg. v. Orimwade, 
 1 Cox, C. C. 85 ; 1 Den. C. C. 30. 
 
 On an indictment on 27 Geo. 2, 
 
 c. 15, for sending a threatening let- 
 ter, the dropping a letter in a man^s 
 way, in order that he might pick it 
 up, was a sending of it. Jiex v. 
 Wagstaff, R. & R. C C. 398. 
 
 The sending was within this stat- 
 ute, although the party saw the 
 prisoner drop the letter, if the pris- 
 oner did not suppose the party knew 
 him, and intended he should not. 
 Ih. 
 
 Affixing a threatening letter on a 
 gate in a public highway, is some 
 evidence to go to the jury of a send- 
 ing thereof Reg. v. Williams, 1 
 Cox, C. C. 16— Cresswell. 
 
 When there is no person in exist- 
 ence of the precise name which the 
 letter bears as its address, it is a 
 question for the jury whether the 
 party into whose hands it. falls was 
 really the one for whom it was in- 
 tended. Reg. V. Garouthers, 1 Cox, 
 C. C. 138— Maule. 
 
 A prisoner was indicted for send- 
 ing a threatening letter. The only 
 evidence against him was his own 
 statement that he should never have 
 written it but for W. G. : — Held, 
 not sufficient. Rex v. Howe, 7 C. & 
 P. 268— Abinger. 
 
 Of Intent.] — On the trial of an 
 indictment for threatening to accuse 
 the prosecutor of an infamous crime 
 with intent to extort money, it was 
 proved that the prisoner had gone 
 up to the prosecutor and said to 
 him, " Kyou do not give me a sov- 
 ereign I will charge you with an in- 
 decent assault " : — Held, that inas- 
 much as, if the jury believed that 
 suc^i language had been used by the 
 prisoner, the intent was manifest, 
 evidence for the prosecution tend- 
 ing to shew that the prisoner had 
 made a similar charge two years 
 before ought not to be admitted. 
 Reg. V. McDonnell, 5 Cox, C. C. 153 
 —Erie. 
 
 On the trial of an indictment 
 for accusing a person of an unnatu- 
 ral crime with intent to extort mon- 
 ey — the prisoner being a soldier. 
 
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TREASON— THE OFFENCE. 
 
 467 
 
 and the accusation having been 
 made while he was on duty as sen- 
 try — evidence of declarations made 
 by him on a former occasion, on 
 qoming off guard, that he had ob- 
 tained money from a gentleman by 
 threatening to take him to the 
 guard-house and accuse him of an 
 unnatural crime, is admissible. Reg. 
 V. Cooper, 3 Cox, C. C. 547 — Cres- 
 well. 
 
 The prisoner was proved to have 
 made the accusation in these words, 
 " I charge this man with indecently 
 assaulting me " : — Held, that it was 
 a question for the jury — taking into 
 consideration the prisoner's conduct 
 throughout the transaction — wheth- 
 er by those words he did not mean 
 to allege that the prosecutor had so- 
 licited him to the commission of an 
 unnatural offence. Ih. 
 
 Of Meaning of Letter.] — If the 
 terms of a threatening letter are 
 doubtful as to the exact accusations 
 the prisoner meant to threaten, his 
 declarations subsequently made, on 
 being asked what he meant to im- 
 pute, are evidence to explain the 
 meaning of the letter. Hex v. Tuck-, 
 er, Car. C. L. 288 ; 1 M. C. C. 134. 
 
 The prisoner sent to the prosecut- 
 or a letter, the language of which 
 was ambiguous : — Held, that the 
 prosecutor might be asked what ap- 
 peared to him to be the meaning of 
 the letter. Heg. v. Hendy, 4 Cox, 
 C. C. 243— Erie. 
 
 Evidence is admissible to shew 
 that, under the particular circum- 
 stances, the words in such a letter 
 have not their ordinary meaning, 
 but the meaning imputed to them 
 upon the record, and therefore the 
 witness may be asked whether he 
 understood the meaning to be that 
 which the record imputed. Ih. 
 
 In case of Accessories.] — Where 
 an accessory after the fact to a 
 charge of sending threatening let- 
 ters, is tried in the absence of the 
 principal, the letters so written and 
 
 sent by the principal are evidence 
 on the trial. Eeg. v. Hansill, 3 Cox, 
 C. C. 597. 
 
 XLI. Treason. 
 
 The Offence, 467. 
 
 Indictment, Lists of Witnesses, 
 Jm-y, Eindence, Trial and Judg- 
 ment, 468. 
 
 1. The Offence. 
 
 25 Edw. 3, St. 5, c. 2 {the Statute 
 of Treasons) ; 1 M. sess. 1, c. 1 ; 36 
 Geo. 3, c. 7 {made perpetual by 57 
 Geo. 3, c. 6) ; 5 tfe 6 Vict. c. 51 ; 11 
 d> 12 Vict. c. 12. 
 
 25 £dw.3,st.5,c.2,was extendedto 
 Ireland by Poyning''s .Act, 10 Heti. 
 7,c. 10, but 36 Geo. 3,c. 7, or 57 
 Geo. 3, c. 6, didnot extend to Ireland. 
 See O'Brien v. 'Heg., 3 Cox, C. C. 
 360 ; 2 H. L. Cas. 465 ; but now ex- 
 tend to Ireland by 11 4" 12 Vict. c. 
 12, s. 2. 
 
 If in an indictment for treason it 
 is stated as an overt act, that the 
 prisoner discharged at the sovereign 
 a pistol, loaded with powder and a 
 certain bullet, and thereby made a 
 direct attempt upon the life of the 
 sovereign ; the jury must be satis- 
 fied that the pistol was a loaded pis- 
 tol, — that is, there was something 
 in it beyond the powder and wad- 
 ding ; but it seems it is not necessa- 
 ry for them to be satisfied that it 
 was actually loaded with that which 
 is generally known by the name of 
 a bullet. Reg. v. Oxford, 9 C. & 
 P. 625 — ^Denman, Alderson and 
 Patteson. See 6 & 6 Vict. c. 51, s. 
 2. 
 
 To constitute the treason of levy- 
 ing war against her majesty within 
 the realm, there must be an insur- 
 rection, there must be force accom- 
 panying that insurrection, and it 
 must be foi- an object of a general 
 nature ; and if a person acts as the 
 leader of an armed body, who en- 
 ters a town, and their object is 
 neither to take the town, nor at- 
 tack the military, but merely to 
 
 Digitized by Microsoft® 
 
468 
 
 TREASON. 
 
 make a demonstration to the magis- 
 tracy of the strength of their party, 
 either to procure the liberation of 
 certain prisoners convicted of some 
 political offences, or to procure for 
 those prisoners some mitigation of 
 their punishment, this, though an 
 aggravated misdemeanor, is not 
 high treason. Reg. v. Frost, 9 C. 
 & P. 129— Tindal, Park and Wil- 
 liams. 
 
 The prisoner is not bound of ne- 
 cessity to shew what was the object 
 or meaning of the acts done. The 
 offence must be made out by those 
 who make the charge. Ih. 
 
 It will be treason in a foreigner 
 resident here, or who is himself 
 abroad, if his family resides here, to 
 aid even his own countrymen in 
 acts or purposes of hostility, wheth- 
 er his own sovereign is at enmity or 
 peace with ours, for it is a breach 
 of the local allegiance due from 
 him. Hex v. Delamotte, 1 East, 
 P. C. 53. 
 
 An apprehension, though ever so 
 well grounded, of having property 
 wasted or destroyed, or of suffering 
 any other mischief not endangering 
 the person, will afford no excuse for 
 joining or continuing with rebels. 
 Rex V. M'Growther, 1 East, P. C. 
 71. 
 
 But it is otherwise if the party 
 joins from fear of death or by com- 
 pulsion. Rex V. Gordon, 1 East, 
 P. C. 71. 
 
 An overt act of piracy only may 
 shew a traitorous intent against the 
 king, in treason for adhering to the 
 king's enemies, if the indictment al- 
 leges the intent to be to seize the 
 ships of the king as well as his sub- 
 jects. Rex V. Evans, 1 East, P. 0. 
 80 ; 2 East, P. C. 798. 
 
 Indictment for high treason in 
 compassing the king's death, and 
 adhering to his enemies. Overt act, 
 conspiring with others to send intel- 
 ligence to the enemy concerning the 
 disposition of the king's subjects in 
 case of an invasion. Rex v. Stone, 
 6 T. R. 527 ; 1 East, P. 0. 79, 99. 
 
 Any intelligence sent to the ene- 
 my in order to serve them in shap- 
 ing their attack or defence, though 
 the purport of it may be to dissuade 
 them from an invasion, is high 
 treason. Ih. 
 
 Though the intelligence is inter- 
 cepted. Rex V. Hensey, 2 Ld. Ken. 
 366 ; 1 Burr. 642. 
 
 It is higfe treason to attempt, by 
 intimidation and violence, to compel 
 the repeal of a law. Rex v. I^ord 
 George Gordon, 2 Dougl. 590. . 
 
 In high treason, the overt act of 
 one is the overt act of all ; and 
 therefore a common design must, in 
 such cases, precede the proof of in- 
 dividual acts. Reg. v. Brittain, 3 
 Cox, C. C. 77— Coltman. 
 
 2. Indictment, List of Witnesses, 
 Jury, Evidence, Trial and Judgment. 
 
 35 Een. 8, c. 2 ; 1 Edw. 6, c. 12, 
 s. 22 ; 54-6 Edw. 6, c. 11, s. 12 ; 1 
 ^ 2 P. 4- M. c. 10, ss. 7 and 8; 7 Sf 
 8 Will. 3, c. 3 ; 7 Anne, c. 21, s. 5 ; 
 6 Geo. 3, c. 53, s. 3 ; 30 Geo. 3, c. 
 48; 39 ^ 40 Geo. 3, c. 93 ; 54 Geo. 
 
 3, c. 146 ; 6 Geo. 4, c. 50, «. 21 ; 5 
 Sf 6 Vict. 0. 51, s. 1. 
 
 Indictment.'] — Semble, that counts 
 charging a party with high treason 
 in " compassing, &c., the maim and 
 wounding" of ms majesty, and with 
 " compassing, &c., the wounding" 
 of his majesty, are bad. Rex v. 
 Collins, 5 C. & P. 305— Bosanquet 
 and Gurney. 
 
 An allegation that the prisoner 
 indicted for high treason has not 
 had a true copy of the indictment is 
 not matter for a plea, but only a 
 ground for an application for a post- 
 ponement of the trial. Reg. v. 
 Burhe, 10 Cox, C. C. 519. 
 
 The copy of the indictment fur- 
 nished to the prisoner need not con- 
 tain a copy of the indorsement of 
 the finding of the grand jury in or- 
 der to satisfy the statute. lb. 
 
 List of Witnesses.] A person in- 
 dicted for high treason is entitled. 
 
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INDICTMENT. 
 
 469 
 
 under 7 Anne, o. 21, s. 14, to a 
 copy of the indictment, and a list 
 of the witnesses for the crown, and 
 of the jurymen who are to be re- 
 turned on the panel, ten days be- 
 fore his arraignment. Hex v. Lord 
 George Gordon, 2 Dougl. 590. 
 
 On a trial for liigh treason, it was 
 objected, after the jury had been 
 charged with the prisoner, but be- 
 fore the first witness was examined, 
 that the prisoner had no list of wit- 
 nesses delivered to him. The in- 
 dictment was found on the 11th of 
 December, on the 12th of Decem- 
 ber a copy of it and of the panel of 
 the jurors intended to be returned 
 by the sheriif, were delivered to the 
 prisoner ; and on the 17th of De- 
 cember the list of witnesses was de- 
 livered to him. The prisoner was 
 arraigned on the 31st of December. 
 The objection to the delivery of the 
 list of witnesses was, that the copy of 
 the indictment and the list of jurors 
 and witnesses should have been all de- 
 livered at the same time simul et 
 semel : — Held, that the delivery of 
 the list of witnesses was not a good 
 delivery in point of law, but that 
 the objection to the delivery of the 
 list of witnesses was not made in 
 due time ; and that, if the objection 
 had been made in due time, the 
 effect of it would have been a post- 
 ponement of the trial, in order to 
 give time for a proper delivery of 
 the list. Reg. v. Frosl, 9 C. & P. 
 163; 2M. CO. 140; 4 Jur. 53. 
 
 Description of Witnesses in Lists. 1^ 
 — Any objection to the description 
 of the witness in the hst of witness- 
 es must be taken on the voir dire, 
 and comes too late after the wit- 
 ness is sworn in chief. Reg. v. 
 Frost, 9 C. & P. 183 ; 2 M. C. C. 
 140 ; 4 Jur. 53. 
 
 The list may properly describe a 
 party as lately of such a place. Reos 
 V. Watson, 2 Stark. 1 1 6— Ellenbor- 
 ough. 
 
 But if, upon the examination of 
 the witness upon the voir dire, it ap 
 
 Digitized by Microsoft® 
 
 pears that he has had a different 
 and later place of residence, the de- 
 scription will not be sufficient. lb. 
 
 A witness was desciibed in the 
 list of witnesses as " S. S., of the 
 parish of S. W., in the borough of 
 N., in the county of M., labourer." 
 N. was a place with 6,000 inhabi- 
 tants, and formed only a part of the 
 parish of S. W., which was a large 
 parish, extending beyond the bor- 
 ough of N. : — Held, sufficient, and 
 that it was neither a misdescription, 
 nor too general. Reg. v. Frost, 9 
 C. & P. 147— Tindal, Parke and 
 Williams. 
 
 A witness was described in the 
 list of witnesses as " of Cross-y-Cy- 
 loy, in the parish of L." The wit- 
 ness stated, that he hved near 
 Cross-y-Clog (which means Cross of 
 the Cock), and that there were two 
 public houses, each so called ; and 
 that his house was between them, 
 and sixty yards from each. It was 
 also proved, that there was a cluster 
 of houses at this place, and that a 
 witness had directed invoices to 
 one of them, as Cross-y-Clog : — 
 Held, that the witness was not 
 properly described. Ih. 150. 
 
 A witness was described in the 
 list of witnesses as " M. J., of P., in 
 the parish of St. W., in the county 
 of M., sometimes abiding at the 
 house of his son, J. J., in the parish 
 of B., in the said county. The wit- 
 ness occupied a house at P., in the 
 parish of St. W., in which his wife 
 resided, he going to work with his 
 son, and returning to his house at 
 P., about three days in every two 
 months. The son's house was in 
 the parish of M., and not in the par- 
 ish of B. : — Held, that if the witness 
 had been described as of P., in the 
 parish of St. W., that would have 
 been sufficient ; but that, as the 
 latter part of the description was 
 incorrect, it vitiated the whole. Ih. 
 152. 
 
 Juries and Challenges.] — If a true 
 bill is found against a person for 
 
470 
 
 TREASON. 
 
 high treason, the judge will, on the 
 application of the counsel for the 
 crown, order the sheriff to furnish 
 the solicitor to the treasury with a 
 list of the persons to be summoned 
 on the jury, that a copy of it may 
 be delivered to the prisoner. Hex 
 V. GolKns, 5 C. & P. 305— Bosan- 
 quet and Gurney. 
 
 Where the prisoner's counsel 
 asked that the names of the jurors 
 should be taken from a ballot-box, 
 instead of being called over in the 
 order in which they stood in the 
 panel, whch was alphabetical, and 
 this proposition was acquiesced in 
 by the Attorney-General, the court 
 allowed the names of the jurors to 
 be taken from a Ijallot-box ; but if 
 the Attorney-General had objected, 
 the court would not have granted 
 the application. Hegi. v. Frost, 9 
 C. & P. 136— Tindal, Parke, and 
 Williams. 
 
 Amendment of Panek.^ — The jury 
 panel, in cases of treason, may be 
 amended by correcting mistakes 
 and inserting a description of the 
 professions of the jurors. Rex v. 
 Hardy, 1 East, P. G. 113. 
 
 Evidence.'l — A letter sent by one 
 of the conspirators, in pursuance of 
 the common design, with a view of 
 reaching the enemy, is evidence 
 against all engaged in the same 
 conspiracy. Rex v. Stone, 6 T. R. 
 527; 1 East, P. C. 79, 99. 
 
 A paper found in the possession 
 of one of the conspirators, contain- 
 ing intelligence proved to have been 
 collected by the prisoner, which pa- 
 per was in the handwriting of the 
 prisoner's clerk, is evidence against 
 the prisoner. Aliter, of a paper in 
 the same handwriting not appear- 
 ing to have any connexion with the 
 prisoner. Ih. 
 
 If one overt act is proved by one 
 witness in the county in which the 
 trial is had, which gives the grand 
 jury jurisdiction to inquire, another 
 overt act of the same species of 
 treason, proved by another witness 
 
 in a different county, ^vill make two 
 witnesses within 7 & 8 Will. 3, c. 
 3. Rex V. JeUias, 1 East, P. C. 130. 
 
 A conviction of high treason may 
 be upon the evidence of one witness 
 only, in all cases where there is no 
 corruption of blood. Rexy. Gaha- 
 gan, 1 Leach, C. C. 42 ; 1 East, P. 
 C. 129. 
 
 As to evidence of treason, see 
 Rex V. Home Tooke, 1 East, P. C. 
 60, 69 ; 2 Leach, C. C. 823. 
 
 In a case of high treason or con- 
 spiracy, the prosecutor may either 
 prove the conspiracy which renders 
 the acts of the co-conspirators ad- 
 missible in evidence, or he may 
 prove the acts of the different per- 
 sons, and thvis prove the conspiracy ; 
 therefore, in a case of high treason, 
 where it appeared that a party had 
 met, which was joined by the jjris- 
 oner on the next day, the counsel 
 for the prosecution was allowed to 
 ask what directions one of the party 
 gave on the day of their meeting, as 
 to where they were to go, and for 
 what purpose. Req. v. Frost, 9 C. 
 & P. 149— Tindal, Parke, and Wil- 
 liams. 
 
 Evidence had been given for the 
 prosecution, that an armed party 
 had attacked the W. hotel, in which 
 the magistrates and troops were 
 stationed. To shew that the inten- 
 tion of the party was not treason- 
 able, but was merely to procure the 
 release of certain prisoners, a wit- 
 ness was called to prove, that, on 
 the party arriving at the hotel gate, 
 they were asked by a special con- 
 stable what they wanted, when one 
 of them answered, " Surrender up 
 your prisoners." It was proposed 
 to call evidence in' reply, that that 
 was not said at the hotel gate : — 
 Held, that this was properly evi- 
 dence in reply. Ih. 159. 
 
 An alien was indicted for high 
 treason, in compassing to depose the 
 Queen, and in levying war against 
 the Queen. The material overt acts 
 of compassing to depose the Queen 
 were — 1st, conspiring at Dublin, to 
 
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Practice at trial. 
 
 471 
 
 raise rebellion and levy war within 
 the realm, and 2ndly, levying war 
 withia the realm at various places. 
 There was evidence that he was a 
 member of the directing body of a 
 treasonable conspiracy, having for 
 its object the overthrow of the 
 Queen's government, and the estab- 
 lishment of a republic in Ireland. 
 There was also evidence that he had 
 planned an attack upon the castle 
 of Chester, in England, for the pur- 
 pose of seizing arms there, and con- 
 veying them to Ireland, with the 
 view of raising an insurrection there. 
 Evidence was also given that the 
 directing body had, iu February, 
 1867, given orders for a rising in 
 Ireland. On the 23rd February, 
 1867, he was an'ested while at- 
 tempting to land in Dublin. On 
 the 5th March, 1867, he being in 
 custody, an insurrectionary move- 
 ment, the result of the commands 
 of the directing body of the con- 
 spiracy, broke out in several places 
 ia Ireland, and various acts of war 
 were committed : — Held, that those 
 acts of war were receivable against 
 him on the indictment in England. 
 Reg. V. Jf' Oafferty, 1 Ir. R., C. L. 
 363 ; 15 W. R. 1022 ; 10 Cox, C. 
 C. 603. 
 
 The rule as to the necessity of 
 having two witnesses in cases of 
 high treason considered and discuss- 
 ed, lb. 
 
 Practice at Tried.'] — The prisoner 
 has a right to address the jury, in 
 addition to the speeches of his coun- 
 sel. Bex V. OoUins, 5 C. & P. 305 
 — Bosanquet and Gurney. 
 
 Where the crown gave evidence 
 in reply, the witness in reply was 
 called before the second counsel 
 for the prisoner addressed the jury, 
 and the leading counsel for, the pris- 
 oner commented on the evidence in 
 reply, also before the second coun- 
 sel for the prisoner addressed the 
 jury. Beg. v. Frost, 9 C. & P. 160. 
 
 The court will not order that 
 
 money taken from a prisoner charg- 
 ed with high treason be restored to 
 him, unless it is made to appear to 
 the court that the money forms no 
 part of the proof against him. lb. 
 132. 
 
 Counsel may be assigned for a 
 prisoner charged with high treason, 
 upon an application made to the 
 clerk of the crown, during an ad- 
 journment of the commissioners, 
 between the finding of the indict- 
 ment and the arraignment, or the 
 prisoner will be allowed, if he wish- 
 es it, to delay naming his counsel 
 till he is brought u^p to be tried. Tb. 
 
 Prisoners will be allowed copies 
 of the depositions against them, on 
 the terms prescribed by 6 & 7 Will. 
 4, c. 114, s. 3. lb. 
 
 A person-charged with high trea- 
 son cannot be allowed by the court 
 before which he is tried to have two 
 attornies, unless they are partners. 
 lb. 
 
 The court will not order that pa- 
 pers taken from his house should be 
 restored to him ; neither will they 
 order that he shall be furnished 
 with copies of them. lb. 133. 
 
 The only counsel who are recog- 
 nized by the court, are the two 
 counsel who are assigned by the 
 court, and the court will not take 
 notice of any assistant counsel, lb. 
 135. 
 
 In charging a jury with a prison- 
 er, it is not necessary to read the 
 whole of the indictment at length to 
 the jury, unless the prisoner or his 
 counsel wish it ; it is sufficient for 
 the clerk of the crown to state the 
 subject of it. lb. 138. 
 
 During a trial for high treason, 
 which was expected to last several 
 days, the court ordered that the 
 prisoner's attorney should have ac- 
 cess to him every day, after the 
 rising of the court, till 10 p.m., and 
 before the sitting of the court, from 
 7 A.M., although it was stated by 
 the governor of the prison that the 
 prison was not open for any other 
 
 Digitized by Microsoft® 
 
472 
 
 TREASURE TROVE.* 
 
 pui-pof.e till half-past 7 a.m., and 
 was shut for the night at 9 p.m. 
 lb. 
 
 Treason Felony.]— The 11 & 12 
 Vict. c. 12, declares it to be felony 
 to " compass, imagine, invent, de- 
 vise, and intend to deprive and de- 
 pose our lady the Queen," <fcc., &c. 
 In support of the charge of this of- 
 fence under the statute, it is suffi- 
 cient to allege as overt acts that 
 the defendants conspired, combined, 
 confederated and agreed to commit 
 the oifence. Mulcahy v. Reg. (in 
 error), 3 L. R., H. L. Cas. 306. 
 
 Where there are several overt 
 acts charged in a count, and judg- 
 ment is given on a general verdict 
 of guilty on that count, such judg- 
 ment will be sustained, though 
 some of the matters alleged as overt 
 acts may be improperly so alleged, 
 provided that the count contains 
 allegations of overt acts that are 
 sufficiently alleged. lb. 
 
 The allegation, in one count, of 
 several diiferent overt acts of felony 
 is not objectionable under 11 & 12 
 Vict. c. 12. Ih. 
 
 Under 11 & 12 Vict. c. 12, s. 3, 
 it is sufficient evidence to support a 
 conviction to shew that the prisoner 
 was a member of a foreign society 
 having for its object the several 
 treasonable objects set out in the 
 several counts of the indictment, 
 and also the existence of a domestic 
 association of similar denomination, 
 and connected with that abroad; 
 and then to prove overt acts done 
 within the venue, in promotion of 
 those objects, by members of the 
 association, and it is not necessary 
 to prove any act of the prisoner 
 himself done in Ireland, or even 
 that he was in Ireland during any 
 part of the period that the associa- 
 tions were shewn to exist either at 
 home or abroad. Reg. v. Meaney, 
 15 W. R. 1082 ; 1 Ir. R., C. L. §00; 
 10 Cox, C. C. 606. 
 
 The defendants were indicted un- 
 
 der the Treason Felony Act, 1 ! <fc 
 15 Vict. c. 12, in causing to be con- 
 veyed arms and ammunition into 
 Ireland for the purpose of over- 
 throwing the established govern- 
 ment : — Held, that the party selling 
 arms, knovping they are to be used 
 for purposes of insurrection, is guilty 
 of an overt act of conspiracy. Se- 
 cret storing of arms, and sending 
 them, under feigned addresses, into 
 districts where the confederacy ex- 
 ists, and with the sanction and 
 knowledge of the confederacy, is 
 evidence of the offence. Reg. v. 
 Davitt, 11 Cox, C. C. 676. 
 
 XLII. Tebasube Teove. 
 
 Concealing and Appropriating.] 
 -In an indictment for concealmg 
 treasure trove from the crown, it is 
 not necessary to aver that the per- 
 son concealed it fraudulently. The 
 words " unlavrfully, wilfully and 
 knowingly," are sufficient. Reg. v. 
 Thomas,!,. &. C. 313; 33 L. J., 
 M. C. 22 ; 12 W. R. 108 ; 9 L. T., 
 K S. 488. 
 
 A., in ploughing, found large 
 rings of old gold of considerable 
 value, and sold them for brass to B. 
 for 5s. M., saying where he found 
 it. B. afterwards found out that 
 they were gold, and offered them to 
 a jeweller for sale as gold. Then 
 B. said he had sold them to C. for 
 brass. Then B. and C. were at a 
 bank together, depositing part of 
 the proceeds for which C. had sold 
 the gold rings :— Held, that there 
 was evidence to support a convic- 
 tion of both B. and C. for knowing- 
 ly concealing treasure trove from 
 the crown. lb. 
 
 An indictment for concealing 
 treasure trove, averring that the 
 Queen is entitled to the treasure, is 
 good without any averment of any 
 inquisition before the coroner, or 
 office found as to the title of the 
 
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PROCEDURE AND PRACTICE. 
 
 473 
 
 Queen ; and a conviction upon sucli 
 an indictment is good without any 
 evidence as to such matters. Reg. 
 V. Toole, 2 Ir. R., C. L. 36 : 10 Cox, 
 C. C. 75 ; 16 W. R. 439. 
 
 XLln. PEOCBDUpE AND PbACTIOE. 
 
 1. Indictment, 473. 
 
 (a) For what it lies, 473. 
 
 (b} Disobeying Orders of Justices 
 and Others, 474. 
 
 (c) Quashing, 475. 
 
 (i) Trial when Indictment is not 
 ffood, 477. 
 
 (e) Finding, 477. 
 
 ({) Ignoring, 477. 
 
 (g) Previous binding of Prose- 
 cutor, 477. , 
 
 (h) Copy of Indictment, 480. 
 
 (i) Venue, 481. 
 
 Q) Caption, 486. 
 
 (k.) Several Counts, 487. 
 
 (\) As to the Allegations, 487. 
 
 (m) Description of the party ac- 
 cused, 489. 
 
 (n) Allegations of Time and 
 Place, 489. 
 
 (o) Name of Party Injured, 
 490. 
 
 fpj Description of Property or 
 Instrument, 492. 
 
 fq) Value, 493. 
 
 (r) Contra Pacem and Contra 
 Formam Statuti, 494. 
 
 (s) Of joining Offences and 
 Electing, 495. 
 
 ( t) Time and Mode of raising 
 Formal Objections, 497. 
 
 fu^ Amendment, 498. 
 
 (v) Nolle Prosequi, 502. 
 
 2. Central Criminal Court, 502. 
 
 fa) Jurisdiction, 502. 
 
 3. Trial, 503. 
 
 (a,) Jurisdiction, 503. 
 
 (b) Arraignment and Plea, 504. 
 
 (c) Withdrawing Plea of Not 
 
 Guilty, 505. 
 
 (i) Standing in the Dock, 505. 
 
 (e) Reading Indictment, 505. 
 
 (() Separate Trial, 506. 
 
 (s) ^ig^t of Acquittal on Indict- 
 ment of Several, 506. 
 
 (b) Postponing or Adjourning, 
 506. 
 
 fi) Illness of Prisoner during. 
 Trial, 508. 
 
 (j) Trial on a Verdict in a Civil 
 Case, 508. 
 
 (k.) Tendering Bill of Excep- 
 tions — See Bill of Ex- 
 ceptions. 
 
 Pish. Dig. ^^^y^y^ed by Microsoft® 
 
 4. Pleas in Abatement, 509. 
 
 5. Pleas of Autrefois Convict and 
 
 Acquit, 509. 
 
 6. Demurrers, 514. 
 
 7. Recognizances, 515. 
 
 8. Commissions and Gaol Delivery, 
 
 517. 
 
 9. Restoring Money found on Prison- 
 
 ers, 518. 
 
 10. Contempt of Court, 519. 
 
 11. Affidavits, 519. 
 
 , 1. Indictment. 
 
 (a) For what it lies in general. 
 
 An indictment will not lie for a 
 mere civil injury. Rex v. Storr, 3 
 Burr. 1698. 
 
 As for pulling off the thatch of a 
 man's dwelling-house. Rex v. At. 
 kins, 3 Burr. 1706. 
 
 Or for selling, as two chaldrons 
 of coals, a less quantity. Rex v. Os- 
 born, 3 Burr. 1697. 
 
 That which is declared by statute 
 to be a misdemeanor cannot be a 
 felony. Rex v. Walford, 5 Esp. 62 
 — ^Hotham. 
 
 An indictment lies not upon an 
 act of Parliament which creates a 
 new offence, and prescribes a par- 
 ticular remedy. Rex v. Wright, 1 
 Bun-. 543. 
 
 A person charged with an offence 
 under an act of Parliament which 
 is repealed before the time of trial 
 comes, must not be put upon trial. 
 Anon., 2 Lewin, C. C. 22— Park. 
 
 Where a prohibition and a pen- 
 alty are contained in the same sec- 
 tion of a statute, the remedy must 
 be by proceeding for the penalty ; 
 but where the prohibition is in one 
 section, and the penalties are in a 
 subsequent section, an indictment 
 will lie. Reg. v. Buchanan, 8 Q. B. 
 883 ;. 10 Jur. 736 ; 15 L. J., Q. B. 
 227. 
 
 Acting as an attorney without 
 having been admitted is a misde- 
 meanor indictable under 6 & 7 
 Ytct. c. 73, s: 2, although a person 
 so acting is incapable of maintais- 
 ing an action for fees, and the so 
 acting is a contempt of court. lb. 
 
474 
 
 PROCEDURE AND PRACTICE. 
 
 To sustain an indictment against 
 a clergyman for refusing to marry 
 persons who have obtained a reg- 
 istrar's certificate for that purpose, 
 they must have presented themselves 
 to him to be married at some time 
 when he could legally have married 
 them. JReg. v. James, 3 C. & K. 
 167 ; T. & M. 300 ; 2 Den. C. C. 1 ; 
 14 Jur. 940. 
 
 (b) Disobeying Orders of Justices 
 and Others. 
 
 An indictment lies for disobeying 
 an order of sessions. Rex v. RoUn- 
 son, 2 Burr. 799 ; 2 Ld. Ken. 513. 
 
 The 6 & 7 Will. 4, c. 86, s. 20, 
 which enacts, that the father or 
 mother of a child, or, in case of 
 ;their illness or absence, the occupier 
 .of the house in which the child 
 should have been born, shall, with- 
 in forty-two days after the birth, 
 give information of the particulars 
 thereof to the registrar, upon re- 
 quest, is imperative, and the party 
 disobeying it is liable to an indict- 
 .ment. Reg. v. Price, 3 P. & D. 
 421 ; 11 A. & E. 727 ; 4 Jur. 291. 
 
 The quarter sessions of a county 
 made regulations as to the expenses 
 'to be allowed in cases of felony, and 
 .by one of them directed that the 
 I taxed bill of costs should be annex- 
 ed to the order for their payment. 
 These regulations were confirmed 
 ■by a judge, under 7 Geo. 4, c. 64, 
 s. 26. In a case of felony, the clerk 
 of assize made out the items of the 
 costs allowed, and on the other half 
 of the same sheet of paper wrote the 
 order for the payment of their 
 amount. The attorney for the pros- 
 ecution tore off the first half of the 
 paper which contained the items, 
 and presented the other half to the 
 county treasurer for payment. The 
 treasurer refused to pay: — Held, 
 that on account of the mutilation 
 of the order the treasurer was not 
 indictable for this refusal. Regt v. 
 Jones, 9 C. & P. 401 ; 2 M. C. C. 
 171. 
 
 If, on an indictment for disobey- 
 
 ing an order of justices, in not 
 abating a nuisance nnder the build- 
 ing act, it appears to have been 
 founded on an order made in a case 
 in which the justices had no juris- 
 diction, the judge at nisi prius will 
 direct an acquittal, although the de- 
 fect appears on the record. Rex v. 
 ffoUis, 2 Stark. 536— Abbott, i 
 
 If there is a positive averment of 
 disobedience of an order of a court 
 of competent jurisdiction, an indict- 
 ment is good, without a direct allega- 
 tion of that which is the foundation 
 of such jurisdiction ; nor can a de- 
 fendant otherwise avail himself, 
 either at the trial or elsewhere, but 
 by shewing a want of jurisdiction in 
 the court. Rex v. Mytton, Cald. 
 536 ; 1 Bott's P. L. 428, n. ; 4 Dougl, 
 333 ; 3 Esp. 200, n. 
 
 Upon the trial of an indictment 
 for disobeying an order of justices, 
 the recital upon the face of the or- 
 der of the facts giving the magis- 
 trates jurisdiction is not evidence of 
 the existence of such facts ; nor is 
 the setting out of the order in haec 
 verba in the indictment a suflicient 
 allegation of the truth of the facts 
 recited therein. Rex v. Gilkes, 2 
 M. & R. 454 ; 8 B. & G. 439 ; 3 
 G. & P. 52. 
 
 An indictment lies against the 
 president and stewards of a friendly 
 society for disobeying an order of 
 justices addressed to them to re-ad- 
 mit a member, though it is sworn 
 that the power of doing so is not in 
 the president and stewards, but in a 
 committee. Rex v. Wade, 1 B. & 
 Ad. 861. 
 
 An indictment against overseers, 
 on 4 & 5 Will. 4, c. 76, s. 47, for 
 not accounting to the auditors of a 
 union upon request, on a day ap- 
 pointed by him, is bad, unless it 
 appears that there was some rale, 
 order or regulation of the commis- 
 sioners, that the overseers should 
 account upon such request. Reg y 
 GrossUy, 2 P. & D. 319 : 10 A. & E 
 132; 3 Jur. 675. 
 
 On dismissing an appeal against 
 
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INDICTMENT. 
 
 475 
 
 a poor-rate, it was orderel by the 
 sessions, that the appellants, " upon 
 service of the order, or a true copy 
 thereof, should pay to the respond- 
 ents 91^. for their costs and charges 
 by reason of the appeal." An in- 
 dictment for disobedience of the or- 
 der stating that a true copy of it 
 was served on the defendants, who 
 then and there had notice of the or- 
 der, is sufficient. Reg. v. Mortlock, 
 7 Q. B. 459 ; 2 New Sess. Cas. 108 ; 
 9 Jur. 621 ; 14 L. J., M. C. 153. 
 
 In order to prove the service of 
 the copy a witness was called, who 
 stated, that the order, having been 
 drawn up from the minutes of the 
 sessions on paper, and signed by 
 the clerk of the peace, was read 
 over by him to each of the defend- 
 ants, whom he at the same time 
 served with a true copy of it : — 
 Held, suificient; and that it was not 
 necessary to give notice to produce 
 the copy served in order to let in 
 such evidence. Ih. 
 
 Held, also, that it was no objec- 
 tion to the order, that the amount of 
 costs, having in the meantime been 
 taxed by the clerk of the peace, was 
 inserted in the order at an adjourn- 
 ed sessions, as the circumstances of 
 the case warranted the conclusion 
 that the parties assented to such a 
 course. Ih. 
 
 The general rule that an indict- 
 ment, and not a mandamus, is the 
 proper mode of enforcing obedience 
 by a ministerial officer to an order 
 of sessions, does not prevail where 
 the court sees that the ministerial 
 officer is put forward merely as a 
 nominal party, and that other per- 
 sons are there who are to be com- 
 pelled to perform the duty. Re<i. 
 V. Wood Ditton, 18 L. J., M. C. 218 
 — Q.B. 
 
 Under the 7 & 8 Vict. c. 101, an 
 order in bastardy, invalid on the 
 face of it, was made, and afterwards 
 superseded, by the same magis- 
 trates ; and, upon a fresh applica- 
 tion, a second order was made, 
 against which there was no appeal : 
 
 — Held, that the second order was 
 valid ; and an indictment for dis- 
 obedience to such order was upheld. 
 Reg. V. Brisby, 3 New Sess. Gas. 
 591 ; T. & M. 109 ; 1 Den. C. C. 
 416; 13 Jur. 520; 18 L. J., M. C. 
 157.. 
 
 (e) Quashing. 
 
 When.]— By 14 & 16 Vict. c. 
 100, s. 25, " every objection to any 
 " indictment for any formal defect 
 " apparent on the face thereof shall 
 " be taken, by demurrer or motion, 
 " to quash such indictment, before 
 " the jury shall be sworn, and not 
 " afterwards." 
 
 The Queen's Bench will not quash 
 or stay proceedings on an indict- 
 ment, if there is no obvious defect 
 upon the face of the indictment. 
 Reg. V. Bumby, 5 Q. B. 348 ; D. & 
 M. 362 ; 8 Jur. 240 ; 13 L. J., M. C. 
 29. 
 
 An indictment for perjury com- 
 mitted upon an examination before 
 a surveyor-general of the customs 
 did not aver that it was preferred 
 under the direction of the commis- 
 sioners, under 3 & 4 "Will. 4, c. 53, 
 s. 112, and a motion was made to 
 quash the indictment or to stay pro- 
 ceedings, upon an affidavit that 
 such direction had not been given. 
 The court refused to interfere sum- 
 marily. Ih. 
 
 Two indictments, the one for mis- 
 demeanor, the other for felony, had 
 been repioved into the Queen's 
 Bench. The court refused to quash 
 them upon an affidavit stating that 
 they both related to the same trans- 
 action. Reg. V. Stochley, 2 G. & D. 
 728 ; 3 Q. B. 238. 
 
 Where a clear defect of jurisdic- 
 tion appears on the face of an in- 
 dictment, or is shewn by affidavit, 
 the court will, on the application of 
 a defendant, quash the indictment 
 after he has pleaded. In a doubtful 
 case the court will exercise its dis- 
 cretion, and leave him to his rem- 
 edy by writ of error. Reg. Y.Heane, 
 4 B. & S. 947 ; 9 Cox, C. C. 433 ; 
 
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476 
 
 PROCEDURE AND PRACTICE. 
 
 10 Jur., N. S. 724 ; 33 L. J., M. C. 
 115 ; 9 L. T., K S. 719. 
 
 A rule to quash an indictment 
 for informality at the instance of 
 the prosecutor, is absolute in the 
 first instance, although the defend- 
 ant has removed it by certiorari, 
 and has not yet appeared and plead- 
 ed. Reg. V. 'StoweU, 1 D., K S. 320 ; 
 5 Jur. 1010— B. C. 
 
 An order of quarter sessions, 
 brought up by certiorari, appeared 
 to be an order quashing an indict- 
 ment containing counts for forcible 
 entries, assaults and a riot : — Held, 
 first,"that the sessions, having juris- 
 diction over the subject-matter of 
 the indictment, had jurisdiction to 
 quash it. Reg. v. Wilson, 6 Q. B. 
 620 ; 1 New Sess. Cas. 427 ; 8 Jur. 
 1069. 
 
 Held, secondly, that the coijrt 
 would not inquire, on this proceed- 
 ing, whether the indictment was 
 properly quashed ; but that the 
 proper way of raising such a ques- 
 tion was by a writ of error. Ih. 
 
 But an indictment for forgery 
 found at the quarter sessions is a 
 nullity, and therefore, where indict- 
 ments for forging requests for the 
 deUvery of goods had been found at 
 the qtiarter sessions, and transmitted 
 to the assizes, the judge ordered that 
 they should be quashed and new 
 indictments prepared at the assizes. 
 Reg. V. RigMi, 8 C. & P. 770— Ers- 
 kine. 
 
 The court refused _to quash upon 
 motion an indictment for selling by 
 false weights. Rex v. Crookes, 3 
 Burr. 1841. 
 
 Or an indictment against several 
 for entering a lead mine and carry- 
 ing away lead, on the ground that 
 it was a mere trespass. Rex v. 
 Johnston, 1 Wils. 325. 
 
 But an indictment for converting 
 a house into an hospital for taking 
 in. and delivering lewd, idle and 
 disorderly .unmarried women, was 
 quashed. Rex v. Maedonald, 3 
 Burr. 1645. 
 
 The court will not on the appli- 
 
 cation of the defendant, quash an 
 indictment for perjury. An indict- 
 ment cannot be quashed in part. 
 Reg. V. Withers, 4 Cox, C. C. 17. 
 
 Where an indictment at common 
 law for disobeying an order of 
 sessions for the maintenance of a 
 bastard child, was defective, but 
 only on points which rendered it 
 bad on d^jnurrer, the court refused 
 to interfere by quashing it. Reg. 
 V. Taylor, 9 D. P. C. 600 ; 5 Jur. 
 679. 
 
 Terms.] — Terms may be imposed 
 on a prosecutor before he is allowed 
 to quash his own indictment. Rex 
 V. Webb, 3 Burr. 1468 ; 1 W. Bl. 
 460. 
 
 After judgment on demurrer, an 
 indictment cannot be quashed at 
 the instance of the prosecutor. Reg. 
 V. Smith, 2 M. & Rob. 109— Cole- 
 ridge. 
 
 An indictment against a defend- 
 ant, standing first in order in the 
 paper, was moved to be quashed 
 on the usual tenms ; but the court 
 only allowed it to be quashed on 
 disclosing the name of the prose- 
 cutor, and that the substituted in- 
 dictment should stand in the same 
 situation as the first would have 
 done. Rex v. Glenn, 3 B. & A. 
 373. 
 
 The court will not quash a de- 
 fective indictment on motion of the 
 prosecutor, after plea pleaded, be- 
 fore another good indictment is 
 found. Rex v. Wynn, 2 East, 226. 
 
 A person who has pleaded to an 
 indictment which is invalid, on ac- 
 count of its having been found 
 upon the testimony of witnesses 
 not duly sworn to give evidence, 
 may be required to plead to another 
 indictment for the same offence, 
 without the first indictment being 
 quashed by the court, ^ea; v. 
 Chamberlain, 6 C. & P. 93— Little- 
 dale. 
 
 A., being indicted for perjury at 
 the spring assizes, 1843, at those 
 assizes entered into recognizances 
 
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INDICTMENT. 
 
 477 
 
 to try at the summer assizes, 1844; 
 but it being discovered before that 
 time that the indictment was de- 
 fective, another indictment was pre- 
 ferred and found at those assizes, 
 on which the prosecutor wished the 
 defendant to be tried : — ^Held, that 
 the defendant was entitled to have 
 the first indictment disposed of be- 
 fore he could be tried on the sec- 
 ond ; but the judge quashed the 
 first indictment upon the terms of 
 the prosecutor paying the defend- 
 ant his costs of the traverse and re- 
 cognizance, and the defendant pro- 
 ceeding to trial on the second in- 
 dictment without traversing. Reg. 
 V. Dunn, 1 C. & K. 730— Wight- 
 man. 
 
 (d) Trial when Indictment is not 
 good. 
 
 A judge may refuse to try an in- 
 dictment clearly bad in point of law. 
 An indictment for perjury, not aver- 
 ring the matters falsely sworn to be 
 material, nor shewing them to be so, 
 is within this authority. Sex v. Tre- 
 main, 5 D. & R. 413 ; Rex v. Tre- 
 meame, 5 B. <Sr C. 7.61 ; R. &. M. 
 147 ; S. P., Rex v. Bepper, R. & M. 
 210. 
 
 Counsel are not allowed to ar- 
 gue at length the invalidity of an 
 indictment for the purpose of induc- 
 ing the court to refuse to try it. 
 But it is sometimes convenient for 
 counsel to suggest a point on which 
 an indictment is clearly bad, to save 
 the time of the court. Rex v. Abra- 
 ham, 1 M. & Rob. 7 — Tenterden. 
 
 A judge at Nisi Prius has no ju- 
 risdiction to try an indictment for 
 peijury at common law found at the 
 quarter sessions, and removed by 
 certiorari into the Queen's Bench; 
 an indictment so found being void. 
 Rex V. jBaynes, R. & M. 298— 
 Gaselee. 
 
 (e) Finding. 
 
 An indictment consisting of two 
 counts, one for a liot, indorsed by 
 the jury ignoramus, the other for 
 
 an assault, returned billa vera, is 
 good. Rex V. Fieldhouse, Cowp. 
 325. 
 
 An allegation in an indictment, 
 " that at the general quarter ses- 
 sions of the peace holden at U., in 
 and for the county of M., on Mon- 
 day, the 10th of July, 1826, before 
 certain of his majesty's justices of 
 the peace assigned &c., a certain bill 
 of indictment against S. H. 6. was 
 duly preferred and found," is only 
 proved by a regular record of the 
 indictment and caption ; and an ex- 
 amined copy of the mere indict- 
 ment without any Caption, together 
 with the minute book of the ses- 
 sions, produced by the deputy clerk 
 of the peace, and from which he 
 reads entries in his own handwrit- 
 ing shewing the time and place of 
 holding the sessions, is not sufficient, 
 although no record in fact has been 
 drawn up. Rex v. Smith, 8 B. & C. 
 341. 
 
 (f) Ignoring. 
 
 If the grand jury at the assizes or 
 sessions has ignored a bill, they can- 
 not find another bill against the 
 same person for the same ofience at 
 the same assizes or sessions ; and if 
 such other bill is sent before them 
 they should take no notice of it. 
 Beg. V. Humphreys, Car. & M. 601 
 — Patteson ; S. P., Reg. v. Austin, 4 
 Cox, C. C. 385 ; see contrk, Reg. v. 
 Newton, 2 M. & Rob. 503— Wight- 
 man. 
 
 But a prisoner, who had been ar- 
 rested in Canada under the Colonial 
 Arrest Act, 6 & 7 Vict. c. 34, s. 5, 
 upon a charge of burglary, for which 
 the bill was ignored, was allowed 
 to be arraigned upon another charge. 
 Reg. V. Phillips, 1 F. & F. 105— 
 Erie. 
 
 (g) Previous hinding of Prosecutor. 
 
 By 22 &, 23 Vict. c. 17, s. 1, " no 
 " bill of indictment for perjury, sub- 
 " omation of perjury, conspiracy, 
 " obtaining money or other proper- 
 " ty by false pretences, keeping a 
 
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478 
 
 PEOOEDUKE AND PRACTICE. 
 
 " gambling house, keeping a disor- 
 " derly house, and any indecent as- 
 " sault, shall be presented toorfound 
 " by any grand jury, unless the pros- 
 " ecutor or other person presenting 
 " such indictment has been bound 
 " by recognizances to prosecute or 
 "give evidence against the person 
 " accused of such offence, or unless 
 " the person accused has been com- 
 " mitted to or "detained in custody, 
 " or has been bound by recogniz- 
 " ance to appear to answer to an 
 " indictment to be preferred against 
 " him for such offence, or unless 
 " such indictmeht for such offence, 
 " if charged to have been commit- 
 " ted in England, be preferred by 
 " the direction or with the consent 
 "in writing of a judge of one of 
 " the superior courts of law at 
 " Westminster, or of the attomey- 
 " general or solicitor - general for 
 " England, or unless such indict- 
 " ment for such offence, if charged 
 " to have been committed in Ire- 
 " land, be preferred by the direc- 
 " tion or with the consent in writing 
 " of a judge of one of the superior 
 " courts of law in Dublin, or of the 
 " attorney-general or solicitor-gen- 
 " eral for Ireland, or (in case of an 
 " indictment for perjury) by the di- 
 " rection of any court, judge or pub- 
 " lie functionary authorized by 14 & 
 " 15 Vict. c. 100, to direct a prose- 
 " cution for perjury." 
 
 By s. 2, " where any charge or 
 " complaint shall be made before any 
 " one or more justices of the peace 
 " that any person has committed 
 " any of the offences aforesaid with- 
 "in the jurisdiction of such justice, 
 "and such justice shall refuse to 
 " commit or to bail the person 
 " charged with such offence to be 
 " tried for the same, then in case 
 " the prosecutor shall desire to pre- 
 " fer an indictment respecting the 
 " offence, it shall be lawful for the 
 "justice, and he is required to 
 " take recognizance of such pros- 
 " ecutor to prosecute the charge or 
 " complaint, and to transmit such 
 
 " recognizance, information and de- 
 " positions, if any, to the court in 
 " which such indictment ought to 
 " be preferred, in the same manner 
 " as such justice would have done 
 " in case he had committed the per- 
 " son charged to be tried for such 
 " offence." 
 
 Vexatious indictments.] — The 30 
 & 31 Vict. c. 35, ss. 1, 2, "limit 
 " the operation of the 22 & 23 Vict. 
 " c. 17, as to the presentment of 
 " bills of indictment mentioned in 
 " this act, containing different 
 " counts." 
 
 It is sufficient if the consent of 
 the judge to the prosecution is giv- 
 en in writing; and no previous 
 summons of or notice to the party, 
 or even an affidavit of the facts, is 
 necessary. Heff. v. Bray, 3 B. & S. 
 255 ; 9 Cox, C. C. 215 ; 32 L. J., M. 
 C. 11; 11 W. R. 7; 7L. T., 2sr. S. 
 248. 
 
 The court will not interfere with 
 the exercise of the discretion of the 
 judge under this act. lb. 
 
 It is not necessary that the indict- 
 ment should aver thS,t the conditions 
 imposed by 22 & 23 Vict. c. 17, s. 
 1, had been performed ; e.g., that 
 it had been preferred by the direc- 
 tion or with the consent of a judge, 
 or of the attorney or solicitor-gener- 
 al. Knowlden v. lieff. (in error), 5 
 B. & S. 532 ; 9 Cox, C. C. 483 ; 10 
 Jur., N. S. 1177 ; 33 L. J., M. C. 
 219 ; 12 W. R. 957 ; 10 L. T., N. 
 S. 691. 
 
 Three persons were severally 
 bound by recognizances to appear 
 at the next session of the Central 
 Criminal Court, and there surren- 
 der themselves, and plead tb such in- 
 dictment as might be found against 
 them for or in respect of a charge 
 of conspiracy to cheat and defraud. 
 The prosecutors, were also bovmd 
 over to appear at such next session, 
 and to prefer, or cause to be prefer- 
 red, a bill of indictment against the 
 persons accused of the offence of 
 conspiracy, and duly to prosecute 
 
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INDICTMENT. 
 
 479 
 
 such indictment and give evidence 
 thereon. At the next session an in- 
 dictment was preferred and found, 
 and the defendants surrendered; 
 but in consequence of the absence 
 of a material witness for the prose- 
 cution the trial was put off, and the 
 recognizances duly respected until 
 the next session. Before the next 
 session the solicitor-general directed 
 an indictment for a conspiracy to be 
 preferred against the three defend- 
 ants and a fourth person, and a sec- 
 ond indictment was preferred and 
 found against them all, upon which 
 the original defendants appeared, 
 but refused to plead. A plea of 
 not guilty was entered for them, 
 and they were found guUty and 
 sentenced : — Held, that the indict- 
 ment was preferred with proper au- 
 thority, and the recognizances du- 
 ly entered into, as the charge on 
 which the defendants were tried was 
 the same as that to which the rec- 
 ognizances related, and those recog- 
 nizances were not exhausted by the 
 first indictment being preferred and 
 the defendants surrendering. Ih. 
 
 The provisions of the above stat- 
 ute must be compUed with in re- 
 spect to every count of an indict- 
 ment to which they are applicable, 
 and any count in which they have 
 not been complied with must be 
 quashed. Meg. v. Fiddge, L. & C. 
 390 ; 9 Cox, C. C. 430 ; 10 Jur., 
 N. 8*160 ; 33 L. J., M. C. 74 ; 12 
 W. R. 351 ; 9 L. T., N. S. 777. 
 
 An indictment contained two 
 counts for obtaining money by false 
 pretences on two several occasions, 
 the requirements of the above stat- 
 ute having been complied with in re- 
 spect of one of the cases only. The 
 prisoner refused to plead, and a plea 
 of not guilty was entered by the di- 
 rection of the court. Evidence 
 was given upon each cormt, and 
 the prisoner was convicted upon 
 each : — Held, first, that the second 
 count ought to have been quashed, 
 and that therefore the conviction 
 
 upon that count could not stand. 
 Ih. 
 
 Held, secondly, that, as evidence 
 was received which would have 
 been inadmissible upon the trial of 
 the first count alone, the conviction 
 upon that count also was bad. Ih. 
 
 A prosecutor who has required 
 the magistrates to take his recogniz- 
 ances to prosecute, on a charge 
 within the 22 & 23 Vict. c. 17, s. 2, 
 when the magistrates have refused 
 to commit the person charged, must 
 either go on with the prosecution 
 or have his recognizances forfeited, 
 as it would defeat the object of the 
 statute if he was allowed to move to 
 have his recognizances discharged. 
 Beg. V. Hargreaves, 2 F. & F. 790 
 — Keating. 
 
 A vestry was empowered, by act 
 of parliament, to indict any person 
 who should stop or impede rights 
 of way in the parish, and to take 
 such other proceedings for opening 
 thereof as should appear expedient : 
 — Held, that the vestry must indict 
 in the name of the Queen, and sue 
 in equity in name of the Attorney- 
 general, and that they could not 
 proceed in their own name. Ber- 
 mondsey Vestry v. Brown, 35 Beav. 
 226. 
 
 A magistrate, if he refuses to 
 commit or bail the person charged, 
 is bound, under 22 & 23 Vict. c. 
 17, s. 2, to take the recognizances 
 of the prosecutor, if the information 
 discloses any of the ofiences men- 
 , tioned in the statute ; but he has a 
 discretion to refuse if no indictable 
 offence is disclosed. Wason, Ex 
 parte, 4 L. R., Q. B. 573 ; 38 L. J., 
 Q. B.302; 17 W. R. 881. 
 
 Where, therefore, the offence 
 charged is that of conspiracy, by 
 three persons, two of whom are 
 members of the House of Lords, to 
 deceive the House, and so to pre- 
 vent the due course of justice and 
 injure and prejudice a third person, 
 by maldng statements in the House 
 which they knew to be false, the 
 
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480 
 
 PROCEDURE AND PRACTICE. 
 
 magistrate is right in refusing to 
 take any proceedings : as members 
 of either House of Parliament are 
 not civilly or criminally liable for 
 any statements made in the House, 
 nor for a conspiracy to make such 
 statements. Ih. 
 
 (h) Copy of Indictment. 
 
 A prisoner upon his acquittal is 
 not entitled ex debito justitise to a 
 copy of his indictment. Rex v. 
 Srangan, 1 Leach, C. C. 27. 
 
 Without an order of the court. 
 Morrison v. Kdly, 1 W. Bl. 385. 
 
 A prisoner indicted for felony is 
 not entitled to a copy of the indict- 
 ment found against him, or to a 
 copy of the jury panel, or to copies 
 of the panels returned at former ses- 
 sions of the court. Meg. v. Mitch- 
 ell, 3 Cox, C. C. 1. 
 
 Where the application is opposed 
 by the attorney-general, the court 
 will not order a party indicted for 
 embezzlement to be furnished with 
 a copy of the indictments found 
 against him, though they are very 
 voluminous and contain a - great 
 many counts ; but in such case the 
 court will order the accused to be 
 furnished with a full bill of particu- 
 lars. Meg. V. Hughes, 4 Cox, C. C. 
 445. 
 
 A prisoner charged under 11 & 
 12 Vict. c. 12, is not of right enti- 
 tled to a copy of the indictment, 
 nor will the court exercise its discre- 
 tion in his favour by awarding him 
 a copy ex gratia. Ih. 
 
 But he is so entitled in cases of 
 misdemeanor as a matter of right, 
 without a previous application to 
 the court. Evans v. Philips, 2 
 Selw. N. P. 952 ; 1 Phil. Evid. 407. 
 
 A prisoner is entitled to a copy 
 of his indictment to enable Mm to 
 plead autrefois acquit. Mex v. 
 Vandercomh, 2 Leach, C. C. 711 • 2 
 East, P. C. 519. 
 
 A. copy of an indictment is neces- 
 sary on the trial of an action for 
 malicious prosecution ; and the 
 court will not entertain the question 
 
 whether it was obtained by fraud. 
 Caddy v. Barlow, 1 M. & 11- 27.'). 
 
 If a plaintiff, in an action for a 
 malicious prosecution, offers to prove 
 at the trial the original record of 
 the indictment and acquittal, or a 
 true copy thereof, such evidence 
 must be received, though there was 
 no order of the court, or fiat of tl^e 
 attorney-general, allowing the plaint- 
 iff a copy of such record ; but the 
 officer, who without such authority 
 produces the record, or gives a copy 
 of it to the party, is answerable for 
 the contempt of court in so doing : 
 and the judge at nisi prius will not 
 compel him to produce the record 
 in evidence, without such authority. 
 Legatt v. ToUervey, 14 East, 302. 
 
 Where a party suing for a mali- 
 cious prosecution had obtained a 
 copy of the indictment by virtue of 
 the attorney-general's fiat, granted 
 under a misstatement as to the view 
 entertained by the judge before 
 whom the indictment was tried, the 
 court refused to stay the proceed- 
 ings, or to prevent the plaintiff from 
 using on the trial the copy so ob- 
 tained. Browne v. Cumming, 5 M. 
 &R. 118; 10 B. &C. 70. 
 
 On an indictment on the prosecu- 
 tion of a private individual for keep- 
 ing a common gaming-house, the 
 solicitor of the treasury was allow- 
 ed to have a new record of nisi pri- 
 us engrossed, and the postea and 
 verdict indorsed from the jtdge's 
 notes, on an affidavit that the pos- 
 tea could not be found, and that 
 the solicitor of the treasury was in- 
 structed by the secretary of state to 
 ask for the judgment of the court. 
 Mex V. Oldjield, 3 B. & Ad. 659, n. 
 
 Where a party has been tried at 
 a court of quarter sessions, which 
 has previously lapsed for want of 
 due adjournment, he has a right to 
 have a record of the proceedings 
 made up by the clerk of the peace, 
 although the object of the applica- 
 tion is to enable him to support a 
 plea of autrefois convict. Mex v. 
 Middlesex (Justice^, 3 N". & M. 110. 
 
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INDICTMENT. 
 
 481 
 
 A prosecutor of an indictment for 
 misdemeanor may obtain tlie usual 
 crown office certificate of his bill 
 having been found, for the purpose 
 of taking out a judge's warrant 
 against the defendant, without ob- 
 taining an office copy of the indict- 
 ment. Rex V. Redfem, 2 A. & E. 
 387 ; 4 N. & M. 198. 
 
 (i) Venue. 
 
 Statutes.]— B-^ 14 & 15 Vict. c. 
 100, s. 23, " it shall not be necessa- 
 " ry to state any venue in the body 
 " of any indictment, but the coun- 
 " ty, city or other jurisdiction nam- 
 " ed in the margin thereof shall be 
 " taken to be the venue for all the 
 " facts stated in the body of such 
 " indictment : provided, that in cas- 
 " es where local description is or 
 " shall be required, such local de- 
 " scription shall be given in the 
 " body of the indictment ; 
 
 " Provided also, that where an 
 " indictment for an offence, com- 
 " mitted in the county of any city 
 " or town corporate, shall be pre- 
 " ferred at the assizes of the adjoin- 
 " ing county, such county of the 
 " city or town shall be deemed 
 " the venue, and may either be 
 " stated in the margin of the in- 
 " dictment, with or without the 
 " name of the county in which the 
 " offender is to be tried, or be stat- 
 " ed in the body of the indictment 
 " ^3J^^?&Y of venue. 
 
 And by s. 24, " no indictment 
 " for any offence shall be held in- 
 " sufficient for want of a proper or 
 " perfect venue." 
 
 As to jurisdiction of the Central 
 Oriminal Court, see i & 5 Will. 4, 
 c. 36 ; 9 & 10 Vict. c. 24, s. 4 ; o/ 
 Borough Courts, see 6 & 7 Will. 4, 
 c. 105. 
 
 Generally/.] — It was sufficient to 
 allege a county as a venue in an in- 
 dictment, without the addition of 
 the parish, vill or other place. Beg. 
 V. Gompertz, 9 Jur. 401 ; 14 L. J., 
 M. C. 118— B. C— Williams. • 
 
 Fish. Kg.— 36. Digitized by Microsoft® 
 
 In an indictment for a misde- 
 meanor, a count containing no state- 
 ment of venue, either by reference 
 or otherwise, was bad at common 
 law after verdict, though a' venue 
 was stated in the margin of the in- 
 dictment. Beg. V. C Connor, 5 Q. 
 B. 16; D. & M. 761; 7 Jur. 719 ; 
 13 L. J., M. C. 33. 
 
 The statement of venue in the 
 margin implies only that the indict- 
 ment is found by a grand jury of 
 the county named, not (as in civil 
 cases) that the complaint is laid as 
 arising within the county. Ih. 
 
 Where, in an indictment, after 
 describing the defendant as " of the 
 parish of A. in the county of B.," 
 the offence is laid to have been 
 committed " at the parish aforesaid," 
 omitting any statement of county, 
 this statement of the venue, if de- 
 fective, was cured by 7 Geo. 4, c. 
 60, s. 20, after verdict, the case 
 having been tried by a jury of the 
 county first named. Beg. v. Al- 
 bif-t, D. & M. 89 ; 5 Q. B. 37 ; 7 
 Jur. 741; 12 L. J., M. C. 117. 
 
 A prisoner was a travelling sales- 
 man, whose dirty it was to go into 
 the county of D. every Monday to 
 sell goods and receive money for 
 them there, and return with it to 
 his master in N. every Saturday. 
 He received two sums of money 
 for his master in D., but never re- 
 turned to render any account. Two 
 months afterwards he was met by 
 his master in N., who asked him 
 what he had done with the money. 
 The prisoner said he was sorry 
 for what he had done ; he had 
 spent it : — Held, that he was rightly 
 indicted in N., there having been 
 evidence to go to the jury of an 
 embezzlement in N. Beg. v. Mur- 
 dock, 2 Den. C. C. 298 ; T. & M. 
 604. 
 
 An indictment charged a defend- 
 ant with obtaining, by false preten- 
 ces, a post-office order. It was 
 proved that the prosecutor, at the 
 request of the prisoner, transmitted 
 through the post a letter containing 
 
482 
 
 PROCEDURE AND PRACTICE. 
 
 a post-office order : — Held, that the 
 defendant was properly tried in' the 
 county in which that letter was 
 posted, though it was received by 
 the prisoner in a different county. 
 Beg. V. Jones, 4 Cox, C. C. 198 ; 1 
 Den. C. C. 551. 
 
 An information at common law 
 for a conspiracy between the cap- 
 tain and purser of a man-of-war, 
 for planning and fabricating false 
 vouchers to cheat the crown (which 
 planning and fabrication were done 
 upon the high seas), it is well tria- 
 ble in Middlesex, upon proof there 
 of the receipt by the commissioners 
 of the navy of the false vouchers 
 transmitted thither by one of the 
 conspirators through the medium of 
 the post, and the application there 
 of a third person, a holder of one of 
 such vouchers (a bill of exchange), 
 for payment, which he there receiv- 
 ed. JRexY. Brisac, 4 East, 164. 
 
 In Boroughs. ] — Where an offence 
 is committed in a borough whichis 
 situate partly in one county and 
 partly ia another, the offence is tri- 
 able in either county, under 14 & 
 16 Yict. c. 55, s. 19. Beg. v. Gal 
 lant, 1 P. & F. 617— Pollock. 
 
 Since the 5 & 6 Will. 4, c. 76, 
 all offences committed in Bristol, 
 and the cities and towns named in 
 schedule C, are triable at the assi- 
 zes for Gloucestershire, and the 
 other counties named in that sched- 
 ule ; and the jurisdiction of the as- 
 sizes is not affected by the gi-ant of 
 a recorder and a quarter sessions in 
 such cities or towns. Beg. v. JIol- 
 den, 8 C. & P. 606— Patteson. 
 
 If a felony is committed in that 
 part of the county of a town which 
 has been added to it by the Bound- 
 ary Act, 2 <fe 3 Will. 4, c. 64, and 
 the Municipal Corporations Act, 5 
 & 6 Will. 4, c. 76, it is triable in 
 the county of the town. Bex v. 
 Piaer, 7 C. & P. 337— Coleridge. 
 
 In Counties.] — Three were in- 
 dicted for feloniously cutting and 
 
 wounding. The venue was laid in 
 Glamorganshire, and the indictment 
 was preferred and tried at the as- 
 sizes for that county. The offence 
 was committed on board an Amer- 
 ican ship anchored in the Penarth 
 Roads, in the Bristol Channel, three 
 quarters of a mile from the coast of 
 Glamorganshire, at a spot never 
 left dry by the tide, but within a 
 quarter of a mile from the land 
 which is left dry. The place in 
 question is situated between the 
 shore of the county of Glamorgan 
 and two islands, which islands have 
 always been treated as part of the 
 county of Glamorgan. It was also 
 about ten miles from the opposite 
 shore of Somersetshire. The Penarth 
 Roads are ninety miles from the 
 mouth of the Channel : — Held, that 
 the part of the sea where the vessel 
 was when the offence was commit- 
 ted formed part of the body of the 
 county of Glamorgan. Beg. v. 
 Ounningham, Bell, C. C. 72 ; 5 Jur., 
 N. S. 202 ; 28 L. J., M. C. 66 ; 7 
 W. R. 179 ; 82 L. T. 287 ; 8 Cox, 
 C. C. 104. 
 
 A., by means of false pretences 
 contained in a letter written and 
 posted by him in the county of C, 
 received in the same county the 
 money obtained by it, which was 
 sent to him by the prosecutor in a 
 letter. The letter containing the 
 false pretences was received by the 
 prosecutor in the county of thl bor- 
 ough of C, and the letter enclosing 
 the money was posted in that coun- 
 ty. A. was indicted for obtaining 
 the money by means of the iPalse pre- 
 tences contained in his letter : — Held, 
 that the venue was well laid in the 
 county of the borough of C. Beg. 
 V. Leech, Dears. C. C. 642 : 2 Jur., 
 N. S. 428 ; 25 L. J., M. C. 77. 
 
 Mar Boundaries of adjoining 
 Counties.]— Bj 7 Geo. 4, c. 64, s. 
 12, " for the more effectual prosecu- 
 " tion of offences committed near 
 " the boundaries of counties, or part- 
 " ly in one county and partly in an- 
 
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INDICTMENT. 
 
 483 
 
 " other, it is enacted, that where 
 " any felony or misdemeanor shall 
 " be committed on the boundary or 
 " boundaries of two or more coun- 
 " ties, or within the distance of 500 
 " yards of any such boundary or 
 " boundaries, or shall be begun in 
 " one county and completed in an- 
 " other, every such felony or misde- 
 " meanor may be dealt with, in- 
 " quired of, tried, determined and 
 " punished in any of the said coun- 
 " ties, in the same manner as if it 
 " had been actually and wholly 
 " committed therein. " 
 
 This means a distance of 500 
 yards measured in a direct line 
 from the border, and not 500 yards 
 by the nearest road. Reg. v. Wood, 
 5 Jur. 225— Parke. 
 
 An indictment at quarter sessions 
 for the borough of S., stated that 
 A., late of the parish of M., in the 
 county of N., and in the borough 
 of S., at the parish aforesaid, in the 
 borough aforesaid, committed an 
 assault. The marginal venue was 
 " borough of S. " The parish is en- 
 tirely in the county of N., the rest 
 of the borough in the county of L. 
 The defendant removed the indict- 
 ment by certiorari, and a venire was 
 awarded into the county of L., 
 where he was tried and convicted. 
 The oifence was committed in a 
 part of the parish which is in the 
 borough, and within 500 yards 
 from the boundary of L. : — Held, 
 that the venue, as laid, was in N. ; 
 and, notwithstanding the proceed- 
 ings under the certiorari, that the 
 trial was without jurisdiction, and 
 judgment was arrested.. Reg. v. 
 Mtchell, 2 Q. B. 636 ; 2 G. & D. 
 274 ; 6 Jur. 505. 
 
 Held, also, that for the trial to 
 be good in either county, under 7 
 Geo. 4, c. 64, s. ]2, the offence 
 must have been laid and tried in 
 one and the same county. lb. 
 
 A felony committed in a county 
 of a town, the style of which is 
 " town of Kingston-upon-HuU and 
 county of the same town " : — Held, 
 
 to be sufficiently laid in the venue 
 of an indictment tried in the next 
 adjoining county, as " Yorkshire be- 
 ing the next adjoining county to 
 the town and county of Kingston- 
 upon-HuU, to wit," the venue being 
 imperfect, there being no " county 
 of Kingston-upon-HuU." Reg. v. 
 Grundy, 2 Cox, C. C. 367 — Patteson. 
 
 Newcastle-upon-Tyne is a county 
 corporate within 7 Geo. 4, c. 64, s. 
 12. Errington's case, 2 Lewin, C. 
 C. 278— Patteson. 
 
 The 38 Geo. 3, c. 52, s. 2, which re- 
 lates to the trial of offences in an 
 adjoining county, only applies to 
 cities, and towns corporate which 
 are counties of themselves, and not 
 to towns corporate which are not 
 counties of themselves. Reg. v. 
 Milner, 2 C. & K. 310— Maule. 
 
 Where an offence, committed 
 within a limitedjurisdiction, is tried 
 in the adjoining county, under 38 
 Geo. 3, c. 52,^. 2, the venue in the 
 margin of the indictment is proper- 
 ly laid in the county where the of- 
 fence is tried, and there is no neces- 
 sity for an averment in the body of 
 the indictment to connect"the coun- 
 ty of the city or town within which 
 the offence is alleged to have been 
 committed with the venue of the 
 county from which the jury comes. 
 Reg. V. Stokes, 4 Cox, C. C. 451— 
 Williams. 
 
 During Journeys or Yoyages^ 
 —By 7 Geo. 4, c. 64, s. 13, " for 
 " the more effectual prosecution of 
 " offences committed during jour- 
 " neys from place to place, it is en- 
 " acted, that where any felony or 
 " misdemeanor shall be committed 
 " on any person, or on or in respect 
 " of any property in or upon any 
 " coach, waggon, cart or other car- 
 " riage whatever employed in any 
 "journey, or shall be committed 
 " on any person, or on or in respect 
 " of any property on board any ves- 
 " sel whatever employed on any 
 " voyage or jouj-ney upon any nav- 
 " igable river, canal or inland navi- 
 
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484 
 
 PROCEDURE AND PRACTICE. 
 
 " gation, such felony or misdemean- 
 " or may be dealt with, mquired of, 
 " tried, determined and punished in 
 " any county, through any part 
 " whereof such coach, waggon, cart, 
 " carriage or vessel shall have pass- 
 " ed in the course of the journey or 
 " voyage during which such fel- 
 " ony or misdemeanor shall have 
 " been committed, in the same man- 
 " ner as if it had been actually 
 " committed in such county ; 
 
 " In all cases where the side, cen- 
 " tre or other part of any highway, 
 " or the side, bank, centre or other 
 " part of any such river, canal or 
 " navigation shall constitute the 
 " boundary of any two counties, 
 " such felony or misdemeanor ma^ 
 " be dealt with, inquired of, tried, 
 " determined and punished in either 
 " of the said counties, through or 
 " adjoining to or by the boundary 
 " of any part whereof such coach, 
 " waggon, cart, carijage or vessel 
 " shall have passed, in the coutse 
 " of the journey or voyage during 
 " which such felony or misdemeanor 
 " shall have been committed, in the 
 " same m*,nner as if it had been ac- 
 " tually committed in such county." 
 
 This enactment is not confined in 
 its operation to the carriages of 
 common carriers, or to public con- 
 veyances, but if property is stolen 
 from any carriage employed on any 
 journey, the oiFender may, by vir- 
 tue of the above section, be tried 
 in any county through any part 
 whereof such carriage shall have 
 passed in the course of the journey 
 during which such offence shall 
 have been committed. -Re<?. v. 
 SJiarpe, Dears. C. C. 416 ; 24 L. 
 J., M. C. 40 ; 6 Cox, C. C. 418. 
 
 Where the evidence is consistent 
 with the fact of an article having 
 been abstracted from a railway 
 carriage, either in the course of the 
 journey through the comity of A., 
 or after its arrival at its ultimate 
 destination in the county of B., and 
 the prisoner is indicted in A. under 
 7 Geo. 4, c. 64, s. 13, the case must 
 
 go to the jury, who is to say whe- 
 ther they-are satisfied that the lar- 
 ceny was committed in the course 
 of the journey or afterwards. Meg. 
 V. Pietce, 6 Cox, C. C. 117. 
 
 The act of stealing must be com- 
 mitted " in or upon the coach," to 
 bring it within 7 Geo. 4, c. 64, s. 
 13. Sharpe's case, 2 Lewin, C. C. 
 233— Parke. 
 
 On an indictment for assault, it 
 was proved that the assault was 
 committed in one of the carriages 
 of a train running from Brighton 
 to New Cross, and before the train 
 had arrived at the Three Bridges 
 Station, in Sussex. At that station 
 the prosecutrix left the carriage ih 
 which she had been riding with the 
 defendant and rode in another car- 
 riage of the same train to New 
 Cross, which is within the jurisdic- 
 tion of the Central Criminal Court : 
 — Held, that by the joint operation 
 of the 7 Geo. 4, c. 64, s. 13, and 4 & 
 
 5 Will. 4, c. 36, s. 2, the indictment 
 was properly preferred and tried at 
 the Central Criminal Court. Heg. 
 v. Menc/i, 8 Cox, C. C. 252— Gur- 
 ney, Recorder. 
 
 Central Criminal Court. 1 — By 9 
 
 6 10 Vict. c. 24, s. 3, " every writ 
 " of certiorari for removing an in- 
 " dictment- from the Central Crim- 
 " inal Court into the Court of 
 " Queen's Bench shall specify the 
 " county or jurisdiction in which 
 " the same shall be tried ; and a 
 "jury shall be summoned, and the 
 " trial proceed in the same manner 
 " in all respects as if the indict- 
 "ment had been originally pre- 
 " ferred in that county or iurisdic- 
 " tion." 
 
 An indictment for libel was pre- 
 ferred in the Central Criminal Court, 
 the publication being laid as hav- 
 ing taken place " at the parish of 
 St. M., in the county of Middlesex, 
 within the jurisdiction of the Cen- 
 tral Criminal Court." The defend- 
 ant having removed it by certio- 
 rari, it came on to be tried at nisi 
 
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INDICTMENT. 
 
 485 
 
 prius, in Middlesex, when lie with- 
 drew his plea of not guilty : — Held, 
 that there was a sufficient venue 
 assigned to the material fact. Reg. 
 V. Gregory, 9 Jur. 593 ; 14 L. J., 
 M. C. 82 ; 7 Q. B. 274. 
 
 At the Central Criminal Court, a 
 person was indicted for a burglary 
 in a house, which was stated in the 
 indictment to be in the " parish of 
 W." The prosecutor stated that 
 the correct name of the parish was 
 St. Mary W. In 4 & 5 Will. 4, c. 
 36, s. 2, this parish is called " the 
 parish of W. ": — Held, sufficient. 
 Beg. Y. St. John, 9 C. & P. 40— 
 — Bosanquet and Parke. 
 
 Larceny committed on board an 
 English ship lying in a river in Chi- 
 na is within the jurisdiction of the 
 Central Criminal Court. Hex v. 
 JMen, 7 C. & P. 664 ; 1 M. C. C. 
 494. 
 
 A. was indicted at common law 
 for simple larceny, in stealing in 
 Middlesex a quantity of lead. The 
 lead was stolen from the roof of 
 the church of Iver in Buckingham- 
 shire. The prisoner was indicted 
 at the Central Criminal Court, 
 which has jurisdiction in Middlesex 
 (under 4 & 5 Will. 4, c. 36), but 
 not in Buckinghamshire : — Held, 
 that he could not be convicted 
 there, on the ground that the orig- 
 inal taking, not being a larceny, 
 but created by statute a felony, th^ 
 subsequent possession could not be 
 considered a larceny. Hex v. Mil- 
 lar, 7 C. & P. 665— Alderson, Pat- 
 teson. Park. » 
 
 An accessory before the fact to a 
 felony committed on the high seas, 
 within the jurisdiction of the Ad- 
 miralty of England, may be indict- 
 ed and tried at the Central Criminal 
 Court, by virtue of 7 Geo. 4, c. 64, 
 s. 9, and 4 & 5 Will. 4, c. 36, s. 22, 
 although the person charged as the 
 principal offender has not been com- 
 mitted to or detained in the gaol of 
 Newgate for his offence. lieg. v 
 Wallace, Car. & M. 200 ; 2 M. C 
 C. 200. 
 
 Before 9 & 10 Vict. c. 24, s. 3, 
 an indictment alleging the offence 
 to have been committed at the 
 parish of M., in the county of Mid- 
 dlesex, and within the juiisdiction 
 of the Central Criminal Court, was 
 found at the Central Criminal 
 Court, and removed by certiorari : 
 — Held, that the case was properly 
 tried by a Middlesex jury. Heg. 
 V. Hunt, 10 Q. B. 925; 11 Jur. 
 822; 17L. J., M. C. 14. 
 
 Change of Venue.] -^ The court 
 removed an indictment from the Cen- 
 tral Criminal Court, and changed 
 the-venvie from London to West- 
 minster, where it was a prosecution 
 instituted by the corporation of 
 London, for a conspiracy in procur- 
 ing false votes to be given at an 
 election to the office of bridgemas- 
 ter. Reg. v. Simpson, 5 Jur. 462 
 — B. C. 
 
 I^ is no ground for removing the 
 trial of an indictment from a lai-ge 
 county, that a strong prejudice ex- 
 ists against the defendant in the 
 county town where the tr;al is to 
 take place. Reg. v. Stephenson, 5 
 Jur. 341— B. C' 
 
 Where the court grants a rule to 
 change the venue in an indictment, 
 on the ground that the defendant 
 is unlikely to have a fair trial where 
 it is laid, the court will change it 
 to some other county on the same 
 circuit. Anon., 6 Jur. 131 — 
 B.C. 
 
 The court will permit a sugges- 
 tion to be entered on the record, 
 for the purpose of the trial of a 
 misdemeanor into an adjoining 
 county on the application of one of 
 several defendants, although it does 
 not appear that the others have as- 
 sented to the application, if there is 
 no reason for believing that they 
 dissent. Req. v. Rrovme, 6 Jur. 
 168— Q. B. 
 
 Where there was a prospect of 
 a fair trial, the court refused to 
 change the venue, though the wit- 
 nesses resided in another county. 
 
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486 
 
 PROCEDURE AND PRACTICE. 
 
 Reg. V. Dunn, 11 Jur. 287— B. C. 
 — Patteson. 
 
 The court will not perniit the 
 venue in an indictment to be 
 changed for any other cause than 
 the inability to obtain a fair trial 
 in the original jurisdiction. Heg. 
 Y. Patent JEurika and Sanitary/ 
 Manure Company, 13 L. T., N. S. 
 365— Q. B. 
 
 The court has no power to change 
 the venue in a criminal case, nor 
 will they order a suggestion to be 
 entered on the roll to change the 
 place of trial in an information for 
 libel, on the ground of inconveni- 
 ence and diificulty, in securing the 
 attendance of the defendant's wit- 
 nesses. Meg. V. Cavendish, 2 Cox, 
 C. C. 176. 
 
 The court will remove an indict- 
 ment for a misdemeanor from one 
 . county to another, if there is rea- 
 sonable cause to apprehend or sus- 
 pect that justice will not be im- 
 partially admiuistered in the former 
 county. Rex v. Hunt, 3 B. & A. 
 444 ; 2 Chit. 130. 
 
 It is no reason for changing the 
 venue in an indictment for a con- 
 spiracy in destroying foxes and oth- 
 er noxious animals, that the gentry 
 of the coiinty in which the indict- 
 ment was found is addicted to fox- 
 hunting. Rex V. King, 2 Chit. 
 217. 
 
 Evidence of partiality must be 
 extremely strong to induce the 
 court to change the venue in a 
 criminal information. Rex v. Har- 
 ris, 3 Burr. 1330 ; 1 W. Bl. 378. 
 
 In felony, the court refused to 
 allow the defendant to enter a sug- 
 gestion for changing the venue, on 
 the ground of prejudice pervading 
 the county. Rex v. Penpraze, 1 N. 
 &M. 312; 4 B. & Ad. 573. 
 
 The court has a discretionary 
 power of ordering a suggestion to 
 be entered on the record of an in- 
 dictment for felony, removed thith- 
 er by certiorari, for the purpose of 
 awarding the jury process into a 
 foreign county ; but this power will 
 
 not be exercised unless it is abso- 
 lutely necessary for the pm-pose' of 
 securing an impartial trial. Rex v. 
 Holden, 2 N. & M. 167 ; 5 B. & 
 Ad. 347. 
 
 Where a defendant is in custody 
 in the county of A., upon an at- 
 tachment issuing out of the Court 
 of Exchequer, he may be removed 
 to the county of B., to take his trial 
 upon an indictment found in the 
 latter county. In re Wetton, 1 C. 
 & J. 459. 
 
 (j) Caption. 
 
 The caption of an indictment 
 must shew that the court where it 
 was found had jurisdiction. Rex 
 V. Fearnley, 1 Leach, C. C. 425. 
 
 An indictment beginning " The 
 jurors of our lady the Queen," is 
 not bad in arrest of judgment. 
 The words, " of our lady the 
 Queen," may be rejected as sur- 
 plusage, the jurors intended being 
 those mentioned in the caption. 
 Reg. V. Twner, 2 M. & Rob. 214 
 — Parke. See Broome v. Reg. (in 
 error), 12 Q. B. 834; 12 Jur. 538; 
 17 L. J., M. C. 152. 
 
 In a nisi prius record of an in- 
 dictment removed by certiorari, the 
 names of the- grand jurors who 
 found the indictment need not be 
 inserted in the caption. Re/x v. 
 Davis, 1 C. & P. 470— Park. 
 • It is not necessary to specify the 
 names of the grand jury in the 
 record of the caption of an indict- 
 ment ; it is enough to aver that the 
 indictment, was found by twelve 
 good and lawful men, for the party 
 indicted has an opportunity of re- 
 sorting to the original caption, 
 where the names of the jurors ap- 
 pear. Aylett V. Rex (in error), 3 
 Bro. P. C. 529 ; 6 A. & E. 247, n. 
 
 The caption of an indictment on 
 which a defendant had been con- 
 victed was drawn up by the clerk 
 of the peace from the minutes of 
 sessions, and returned with the in- 
 dictment to the crown officer. It 
 stated the presentment to be made 
 
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INDICTMENT. 
 
 487 
 
 by the oaths of A., B., C, D. (nam- 
 ing twelve grand jurors), and oth- 
 ers, good and lawful men. A rule 
 was obtained (with a view to a 
 court of error), calling on the clerk 
 of the peace to shew cause why the 
 caption should not be amended by 
 inserting the true names and num- 
 ber of the grand jury sworn. Proof 
 was given by affidavit, that the real 
 number exceeded twenty-five. The 
 clerk did not deny this, but stated 
 that he had no minute or recollec- 
 tion of the names or number : — 
 Held, that the caption was not in- 
 con'ect in omitting to state the num- 
 ber and all the names of the grand 
 jui-y ; and that, under these circum- 
 stances, no alteration could be made 
 in it, and the defendant received 
 judgment. Hex v. Marsh, 6 A. & 
 E. 236 ; 1 N. & P. 187 ; 2 H. & 
 W. 366. 
 
 Semble, per Patteson, J., that an 
 indictment which omits to describe 
 the jurors as jurors of the covin ty 
 is bad. Whitehead v. JReg. (in er- 
 ror), 7 Q. B. 582 ; 9 Jur. 594 ; 14 
 L. J., M. C. 165. 
 
 A caption stating that an indict- 
 ment was found at the sessions hold- 
 en at Warwick, in and for the coun- 
 ty of Warwick, and by adjourn- 
 ment thence at Coventiy, in and 
 for the same county, upon the oath 
 of A. B., &c., good and lawful 
 men of the county then and there 
 sworn to inquire for the body of 
 the county, is a sufficient caption 
 under the 5 & 6 Vict. c. 110, an- 
 nexing the county of the city of 
 Coventry to Warwickshire. JTol- 
 loway V. Meg. (in error), 17 Q. B. 
 319; 2 Den. C. C. 287; 15 Jur. 
 825. 
 
 (k) Several Counts. 
 Validity.'] — Each count in an in- 
 dictment is, to all intents and pur- 
 poses, a separate indictment in it- 
 self. Latham v. Beg. (in error), 
 9 Cox, C. C. 516; 10 Jur., N. S. 
 1145 ; 33 L. J., M. C. 197 ; 5 B. & 
 
 S. 635 ; 12 W. R. 908; 10 L. T., 
 N. S. 571. 
 
 Where, therefore, it appeared by 
 the record, that the defendants 
 pleaded not guilty generally to an 
 indictment containing two counts, 
 and that the jury found a verdict 
 of guilty upon the one count, but it 
 did not appear that they found any 
 verdict upon the other : — Held, that 
 the conviction and judgment upon 
 the one were, nevertheless, good. 
 lb. 
 
 A prisoner was arraigned upon« 
 an indictment, containing one count 
 for felony and one for misdemeanor ; 
 and, having pleaded not guilty, was 
 duly tried and convicted of felony : 
 — Held, that the misjoinder was no 
 objection to the conviction. Reg. 
 V. Ferguson, 6 Cox, C. C. 454 ; 24 
 L. J., M. C. 61. 
 
 Adding.] — Where the counsel 
 for the prosecution has obtained 
 leave to add a count, on the ground 
 that the indictment, as framed, will 
 not enable him to disclose all the 
 facts of the transaction, the defend- 
 ant cannot claim to be tried at 
 once upon the indictment already 
 preferred, and the trial must be 
 postponed. Reg. v. Stone, 1 F. & 
 F. 310— Bram well. 
 
 (1) Ajs to the Allegations. 
 
 By 14 & 15 Vict. c. 100, s. 24, 
 " no indictment for any offence shall 
 " be held insufficient for want of the 
 " averment of any matter unneces- 
 " sary to be proved, nor for the 
 " omission of the words 'as appears 
 " by the record,' or of the words 
 " ' with force ' and arms,' nor for 
 " want of a proper or formal con- 
 " elusion, nor for want of or imper- 
 " fection in the addition of any de- 
 " fendant." 
 
 If an indictment is in itself good, 
 tautologous words will be rejected 
 as surplusage. Rex v. Morris, 1 
 Leach, C. C. 109. 
 
 A bad indictment may be made 
 
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488 
 
 PROCEDURE AND PRACTICE. 
 
 good by rejecting as insensible and 
 useless such words as obstruct the 
 the sense of it. Rex v. Redman, 1 
 Leach, C. C. 477. 
 
 A statement in an indictment 
 may be either according to the fact 
 or the legal operation. Reg. v. 
 Hecdey, 1 M. C. C. 1. 
 
 The words " as follow, that is to 
 say," when introductory to a recital 
 in an indictment, do not bind the 
 party to an exact and a verbatim 
 recital. Rex v. Hart, L Leach, C. 
 ,C. 145 ; 2 East, P. C. 978 ; 1 Dougl. 
 193 ; Cowp.- 229 ; S. P., Rex v. 
 May, 1 Leach, C. C. 192. 
 
 Where an evil intent, accompany- 
 ing an act, is necessary to constitute 
 such act a crime, the intent must be 
 alleged in the indictment, and prov- 
 ed ; though it is insufficient to al- 
 lege it in the prefatory part of the 
 indictment. But where the act is 
 in itself unlawful, the law infers an 
 evil intent, and the allegation of 
 such intent is merely matter of form, 
 and need not be proved by ex- 
 trinsic evidence on the part of the 
 prosecutor. Rex v. Phillips, 6 East, 
 464 ; 2 Smith, 550. 
 
 An indictment, which may apply 
 to either of two different definite of- 
 fences, is bad. Rex v Marshall, 1 
 M. C. C. 158. 
 
 If an indictment has an interline- 
 ation, and has a caret at the proper 
 place, where the interlined words 
 are to come in, the court will take 
 notice of the caret, and read the in- 
 dictment correctly. Rex v. Davis, 
 7 C. & P. 319— Patteson. 
 
 Every indictment must contain a 
 complete description of such facts 
 and circumstances as constitute the 
 crime, without inconsistency or re- 
 pugnancy. But, except in certain 
 cases, where technical expressions 
 havinggro wn by long use into law are 
 required to be used, the same sense 
 is to be put on the words of an in- 
 dictment which they bear in ordin- 
 ary acceptation ; and if the sense of 
 any word is in ordinary acceptation 
 ambiguous, it will be construed ac- 
 
 cording as the context and subject- 
 matter require it to be, in order to 
 make the whole consistent and 
 sensible. The word "until" may 
 therefore be construed either ex- 
 clusive or inclusive of the day to 
 which it is applied, according to 
 the context and subject-matter. 
 Rex V. Stevens, 5 East, 244 ; 1 Smith, 
 437. 
 
 After verdict dtefective averments 
 in a second count of an indictment 
 may be cured by reference to suffi- 
 cient averments in the first count. 
 Reg. V. Waverton, 2 Den. C. C. 340 ; 
 17 Q. B. 562 ; 16 Jur. 16 ; 21 L. J., 
 M. C. 7. 
 
 An indictment, ungrammatical, 
 is not bad if the real meaning is suf- 
 ficiently expressed. Reg. v. Stokes. 
 1 Den. C. C. 307. 
 
 An indictment charging that de- 
 fendant made an assault on Henry 
 B., " and him the said William B. 
 did beat, and other wrongs to the 
 said William B. did the damage of 
 the said William B.," is insufficient. 
 Reg. V. Grespin, 11 Q. B. 913 ; 12 
 Jur. 433 ; 17 L. J., M. C. 128. 
 
 Since 14 & 15 Vict. c. 100, s. 24, 
 an indictment for a public nuisance 
 needs not conclude ad commune 
 nocumentum. Reg. v. Holmes, 
 Dears. C. C. 207 ; 17 Jur. 562 ; 22 
 L. J., M. C. 122. 
 
 Semble, when the title of an act 
 is not correctly set out in an indict- 
 ment, but the variation from the 
 true title is so small that the court 
 can have no doubt what statute is 
 referred to by the title indicated, 
 no objection can be sustained to the 
 sufficiency of the indictment on ac- 
 count of the variance. Reg. v. 
 Westley, Bell, C. C. 193 ; 29 L. J., 
 M. C. 35 ; 5 Jur., K S. 1362. 
 
 In felonies the indictment must 
 allege them to have been done fel- 
 oniously ; and, therefore, where a 
 statute creates a felony, it is not 
 sufficient to charge the ofiender 
 merely in the terms of the statute. 
 Reg. V. Ctray, L. & C. 365 ; 9 Cox, 
 C. C. 417 ; 10 Jur., N. S. 160 ; 33 
 
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INDICTMENT. 
 
 489 
 
 L. J., M. C. 78; 12W. R. 350: 9 
 L. T., N. S. 733. 
 
 A prisoner was indicted under 
 24 & 25 Vict. c. 97, s. 15, with hav- 
 ing unlawfully and maliciously 
 damaged, with intent to destroy, 
 certain machines ; the word " felon- 
 iously " being omitted, the indict- 
 ment is bad. lb. 
 
 An indictment alleging that a 
 cause " came on to be heard and 
 was duly tried by a jury," is suffi- 
 cient, although no verdict was giv- 
 en, the trial ending in a nonsuit. 
 Reg. V. Bray, 9 Cox, C. G. 218— 
 Guruey, E^corder. 
 
 An indictment, alleging that the 
 defendant " did unlawfully obtain 
 from the said C. C. a cheque for 
 the sum of 8^. 14«. 6rf. of the monies 
 of the said W. W.," is a sufficient 
 allegation of the ownership of the 
 cheque. Reg. v. Godfrey, Dears. & 
 
 B. C. C. 426 ; 4 Jur., N. S. 146 ; 
 27 L. J., M. C. 151. 
 
 An indictment charging D. L. as 
 a receiver of stolen goods, "he, the 
 said A. B., well knowing them to 
 have been feloniously stolen,'' is, in 
 arrest of judgment, a bad indict- 
 ment, and is not capable of being 
 amended. Reg. v. Larkin, 2 C. L. 
 R. 775 ; Dears. C. C. 365 ; 6 Cox, 
 
 C. C. 377 ; 18 Jur. 539 ; 23 L. J., 
 M. C. 125. 
 
 A. was charged in one count with 
 stealing goods, and in a second 
 count with receiving the same 
 goods "so as aforesaid feloniously 
 stolen." He was convicted on the 
 second count : — ^Held, that the con- 
 viction was good. Reg. v. Huniley, 
 Bell, C. C. 238; 8 Cox, C. C. 260 ; 
 6 Jur., N. S. 80 ; 29 L. J., M. C. 
 170 ; 8 W. R. 183 ; 1 L. T., N. S. 
 384. 
 
 Duplicity in an indictment is no 
 ground of error. Nash v. Reg. (in 
 error), 9 Cox, C. C. 424 ; 10 Jur., 
 N.S.819; 33 L. J., M. C. 94; 4 
 B. & S. 935 ; 12 W. R. 421 ; 9 L. 
 T., N. S. 716. 
 
 Fish. Dig.— 37. 
 
 (m) Description of the Party ac 
 cus&d 
 
 By 14 & 15 Vict." c. 100, s. 24, 
 " no indictment for any offence shall 
 " be held insufficient for want of or 
 " imperfection in the addition of any 
 " defendant." 
 
 If the name of a prisoner is un- 
 known, and he refuses to disclose 
 it, an indictment against him as a 
 person whose name is to the jurors 
 unknown, but who is personally 
 brought before the jurors by the 
 keeper of the prison, will be suffi- 
 cient. Rex V. , R. & R. C. C. 
 
 489. 
 
 But an indictment against him as 
 a person to the jurors unknown, 
 without something to ascertain 
 whom the grand jury meant to des- 
 ignate, is insufficient. lb. 
 
 An indictment against A. by the 
 addition of " servant " was ill. Rex 
 V. Ohecketts, 6 M. & S. 88. 
 
 A woman charged with the mur- 
 der of her husband was described 
 as " A., the wife of J. O., late pf 
 the parish of S., in the county of 
 W., labourer." The judge ordered 
 this to be amended by striking out 
 the word " wife " and inserting the 
 word " widow." Reg. v. Orchard, 
 8 C. & P. 565— Abinger. 
 
 The prosecutor lyas termed in the 
 indictment J. N. B. esquire : it was 
 proved that his name was J. N. B., 
 but no evidence was given that 
 he was an esquire : — Held, that the 
 court would take notice that esquire 
 was an addition, and not part of 
 the name, and that it was immater- 
 ial that such addition should be 
 proved as laid. Reg. v. Keys, 2 
 Cox, C. C. 225— Wilde. 
 
 (n) Allegations of Time and Place. 
 By 14 & 15 Vict. c. 100, s. 24, 
 " no indictment for any oifence shall 
 "be held insufficient for omitting 
 " to state the time at which the of- 
 " fence was committed in any case 
 " where time is not of the essence 
 
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490 
 
 PROCEDURE AND PRACTICE. 
 
 " of the offence, nor for stating the 
 " time imperfectly, nor for stating 
 " the offence to have been commit- 
 " ted on a day subsequent to the 
 " finding of the indictment, or on 
 " an impossible day, or on a day 
 " that never happened." 
 
 Where dates in an indictment 
 are laid under a videlicet, the vide- 
 licet may be rejected after verdict in 
 order to support the indictment. 
 HyaMs V. JReg. (in error), 11 Q. B. 
 781 ; 13 Jur. 259 ; 18 L. J., M. C. 
 69— Exch. Cham. 
 
 After verdict, to support an in- 
 dictment, and to shew that the pro- 
 visions of a statute have been com- 
 plied with, dates laid under a vide- 
 licet will be taken to be true. Heff. 
 V. Scott, 25 L. J., M. C. 128 ; Dears. 
 & B. C. C. 47 ; 2 Jur., N. S. 1096. 
 
 In an indictment for assault and 
 battery, the only allegation of the 
 year in which the offence was com- 
 mitted was " in the tenth year of 
 our Sovereign Lady Queen Vic- 
 toria " : — Held, that by 7 Geo. 4, o. 
 64, s. 20, this was no ground of er- 
 ror. Broome v. Heff. (in error), 12 
 Q. B. 834 ; 12 Jur. 538 ; 17 L. J., 
 M. C. 152— Exch. Cham. 
 
 The objection that an offence 
 was laid in an indictment to have 
 been committed on a day which 
 had not yet arrived, could only be 
 taken advantage of on demurrer, 
 and could not be taken after a plea 
 of not guilty. Heg. v. Fenwick, 2 
 C. & K. 915 ; 4 Cox, C. C. 139— 
 Cresswell. 
 
 In an indictment for burglary, it 
 is sufiicient to allege that the burg- 
 lary was committed at a place, 
 naming it, e. g. " at Norton-juxta- 
 Kempsey, in the county aforesaid," 
 without stating, the place to be the 
 parish, vill, chapelry, or the Uke. 
 Meg. V. Brookes, Car. & M. 543 — 
 Patteson. 
 
 It was no objection on the plea 
 of not guilty that there was no such 
 place in the county as that in which 
 the offence was stated to have been 
 committed, and the fact that there 
 
 was no such place in the county 
 could only be taken advantage of 
 by plea in abatement. Hex v. 
 Woodward, 1 M. C. C. 323. 
 
 In an indictment, alleging a 
 dwelling-house to be " situate at the 
 parish aforesaid," the parish last 
 mentioned must be intended. Jiex 
 V. Richards, 1 M. & Rob. 177— 
 Park. 
 
 A house is properly described as 
 in the parish of Birmingham, al- 
 though for certain ecclesiastical 
 purposes that parish is divided into 
 three divisions, each called a parish. 
 Reg. V. Howdl, 9 C. <^ P. 437— 
 Littledale. 
 
 Where time and place are mate- 
 rial, the time and place stated will 
 be taken to be the true time and 
 place. Rex v. Napper, 1 M. C. C. 
 44 ; S. P., Rex v. Brown, M. & M. 
 163. 
 
 Where a statute makes an offence 
 committed after a given day triable 
 in the county where the party is ap- 
 prehended, and authorizes laying it 
 as if committed in that county, and 
 does not vary the nature and char- 
 acter of the offence, it is no objec- 
 tion that the day laid in the indict- 
 ment is before the day the statute 
 mentions, if the offence was in fact 
 committed after that day. Rex v. 
 Treharne, 1 M. C. C. 298. 
 
 Words of reference, as " there " 
 and " said," in an indictment, will 
 not be referred to the last anteced- 
 ent, where the sense requires that 
 they should be referred to some 
 prior antecedent. Wright v. Rex 
 (in error), 3 K &M. 892. 
 
 (o) Name of Party injured. 
 
 In General.'] — By 14 & 15 Vict. 
 0. 100, s. 24, " no indictment for 
 " any offence shall be held insuffi- 
 " cient for that any person mea- 
 " tioned in the indictment is desig- 
 " nated by a name of office, or other 
 " descriptive appellation instead of 
 " his proper name." 
 
 A prosecutor may be described 
 by a name he has assumed, although 
 
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INDICTMENT. 
 
 491 
 
 it is not his right name, if he has 
 been known by that name for sev- 
 eral previous years. Hex v. Norton, 
 R. & R. C. C. 510. 
 
 It is sutficient to describe a prose- 
 cutor by the name by which he is 
 commonly and best known. Heff. 
 V. Gregory, 2 New Sess. Cas. 229 ; 
 8 Q. B. 508 ; 10 Jur. 387 ; 15 L. J., 
 M. C. 38. 
 
 A foreigner residing in this 
 country, whose name was Charles 
 Frederick Augustus William D'- 
 Este, and who was commonly call- 
 ed theDuke of Brunswick andLune- 
 berg, though not de facto the reign- 
 ing duke, was sufficiently described 
 as Charles Frsderick Augustus Wil- 
 liam, Duke of Brunswick and Lune- 
 berg. lb. 
 
 The question, whether the name 
 of a prosecutor, as set forth in an in- 
 dictment, and the name as it ap- 
 pears in evidence, are idem sonans, 
 is a matter of fact which is for the 
 jury ; and where it is reserved as a 
 question of law, the court cannot 
 say that words spelt differently are 
 the same in sound. Reg. v. Davies, 
 2 Den. C. C. 231 ; T. & M. 557 ; 
 15 Jur. 546 ; 20 L. J., M. C. 207. 
 The prisoners were indicted for 
 steaUng certain articles from Rich- 
 ard Henry John Beaumont Mc- 
 Cumming; there was evidence of 
 the prosecutor's surname being Mc- 
 Cumming, but there was no evi- 
 dence what his christian names 
 were: — Held, that the indictment 
 was not sustainable. Beg. v. Dent, 
 2 Cox, C. C. 354. 
 
 The only evidence of the chris- 
 tian name of the prosecutor was 
 that of a witness who had seen him 
 sign an information, not in the pres- 
 ence of the prisoners, and also the 
 depositions when before the magis- 
 trates, in the presence of the prison- 
 ers. The witness knew nothing of 
 the prosecutor's christian name ex- 
 cept from having seen him sign his 
 name on those two occasions:— 
 Held, that the witness's evidence 
 was admissible to prove the fact of 
 
 the prosecutor's name. Heg. v. 
 Took, Dears. & B. C. C. 194 ; 3 
 Jur., N. S. 420 ; 26 L. J.,M. C. 79. 
 
 Property stolen described in an 
 indictment as belonging to J. H. S., 
 whereas, in fact, the name was H. 
 J. S., is improperly described. Seg. 
 v. James, 2 Cox, C. C. 227. 
 
 A count in an indictment charged 
 that defendant made an assault up- 
 on one " Hem-y B.," " and him, the 
 said William B., did beat, and other 
 wrongs to the said William B.," 
 did, to the " damage of the said 
 William B." On motion in arrest 
 of judgment, held sufficient. JReg. 
 v. Orespin, 11 Q. B. 913. 
 
 If the name of the party killed is 
 not known, he may be stated to be 
 " a certain person to the jurors un- 
 known." Bex V. Clark, R. & R. C. 
 C. 358. 
 
 The name of John M'NicoU, 
 signed to a forged instrument, was 
 in the setting out of the forged in- 
 strument in the indictment written 
 John M'Nicole : — Held, no variance. 
 Seg. V. Wilson, 2 C. & K 527 ; 1 
 Den. C. C. 284 ; 17 L. J., M. C. 82; 
 2 Cox, C. C.426. 
 
 A child " not named " is a proper 
 description in an indictment for ill- 
 treatment of a child that has not 
 acquired one by baptism or usage. 
 Heg. V. Waters, 2 C. & K. 864 ; T. 
 & M. 57 ; 1 Den. C. C. 356 ; 13 
 Jur. 130 ; 18 L. J., M. C. 50. 
 
 But " not baptized " would be in- 
 sufficient, lb. 
 
 Bastards.] — A bastard must not 
 be described by his mother's name 
 till he has acquired that name by 
 reputation. Bex v. Glark, R. & R. 
 C. C. 358. 
 
 The deceased was an illegitimate 
 child twelve days old, and it was 
 not even suggested that it had 
 been baptized, but the prisoner, its 
 mother, had said that she should 
 like to have the child named Mary 
 Anne, and on two occasions after- 
 wards called the child Mary Anne, 
 and on another occasion, Little 
 
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492 
 
 PROCEDURE AND PRACTICE. 
 
 Mary. The prisoner's master, who 
 was tlie father of the child, had 
 stated to one of the witnesses for the 
 prosecution that he was a Baptist. 
 The indictment alleged the child to 
 be " a certain female child, whose 
 name to the jurors was unknown." 
 The prisoner was convicted, and the 
 judges held the conviction to be 
 right. Rex V. Smith, 6 C. & P. 151; 
 1 M. C. C. 402. 
 
 An indictment charged the mur- 
 der of Eliza Waters. The deceased 
 was the illegitimate child of the 
 prisoner, whose name was Ellen 
 Waters ; and a witness said on the 
 trial — " The child was called Eliza; 
 I took it to be baptized, and said it 
 was Eleanor Waters' child : — Held, 
 that it was not sufficient proof that 
 the surname of the deceased, was 
 Waters. Rex v. Waters, 7 C. & P. 
 250 ; 1 M. C. C. 457. 
 
 Peers.] — ^A peer of Ireland can- 
 not sue or prosecute by his name of 
 dignity, but must be described by 
 his proper name, with the addition 
 of his degree and title. Rex v. Otcl- 
 ham, 2 Leach, C. C. 547. 
 
 An indictment for manslaughter 
 described the deceased, who was a 
 peer of Ireland, as " H. S., Baron 
 M. of C, in the county of R., in 
 that part of the united kingdom 
 called Ireland." It was proved that 
 H. was his christian name, S. his 
 family surname, and Baron M., &c., 
 his title : — Held, no variance, and 
 that the court was not bound to 
 construe H. S. to be one christian 
 name. Rex v. Brinklett, 3 C. & P. 
 416. 
 
 In an indictment for larceny of 
 goods, the property of a peer who 
 is a baron, the goods may be laid as 
 the goods of G. T. R., Lord D., 
 without styling him Baron D., al- 
 though the more proper way to de- 
 scribe a peer is by his christian 
 name, and his degree in the peerage, 
 as duke, earl, baron, or the like. 
 Reg. V. P«Ws,,8 C. & P. 771— Er- 
 skine. 
 
 In an indictment for stealing the 
 goods of a peer, it is necessary to 
 describe him by his christian name 
 and title : — describing him by the 
 latter only, as the Earl Cornwallis, 
 is insufficient. Reg. v. Caley, 5 Jur. 
 709— Taddy, Serjt. 
 
 A. and B. were tried on an in- 
 dictment charging them with hav- 
 ing assaulted the gamekeeper of 
 George William Frederick Charles, 
 Duke of Cambridge. At the trial, 
 none of the' witnesses could prove 
 the christian names of the duke, but 
 there was evidence that George 
 William were two of his names, 
 and that it was believed there were 
 others : — Held, that the court was 
 not bound, and was perfectly right 
 in refusing to amend the indictment, 
 by striking out the names of Fred- 
 erick Charles ; and that as there 
 was no amendment, and no evidence 
 of the duke's christian names, A. 
 and B. were entitled to an acquit- 
 tal. Reg. V. Frost, Dears. C. C. 
 474; 3C. L. R. 665 ; IJur., N. S. 
 406; 24 L. J., M. C. 116. 
 
 Held, also, that the indictment 
 might have been amended before 
 verdict, by striking out all the 
 christian names, and leaving the de- 
 scriptive appellation, Duke of Cam- 
 bridge, which would have been a 
 sufficient description. lb. 
 
 Gorporations. J — A corporation 
 must prosecute in its corporate 
 name. Rex v. Patrick, 1 Leach, C. 
 C. 253. 
 
 (p) Description of Property or In- 
 strument. 
 
 By 14 & 15 Vict. c. 100, s. 7, 
 " whenever it shall be necessary to 
 " make any averment in any in- 
 " dictment as to any instrument, 
 "-whether the same consists wholly 
 "or in part of writing, print, fig- 
 " ures, it shall be sufficient to de- 
 " scribe such instrument by any 
 " name or designation by which the 
 " same may be usually known, or 
 
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INDICTMENT. 
 
 493 
 
 by the purport thereof, without 
 setting out any copy or fac simile 
 of the whole or any part there- 
 of." 
 
 By s. 5, " in any indictment for 
 stealing, embezzling, destroying 
 or concealing, or for obtaining by 
 false pretences any inslrument, it 
 shall be sufficient to describe such 
 instrument by any name or desig- 
 nation by which the same may be 
 usually known, or by the purport 
 thereof, without setting out any 
 copy or fac simile thereof, or oth- 
 erwise describing the same or the 
 value thereof." 
 
 By s. 18, " in every indictment in 
 which it shall be necessary to 
 make any averment as to any 
 money, or any pote of the Bank 
 of England, or any other bank, it 
 shall be sufficient to describe such 
 money, or bank note, simply as 
 money, without specifying any 
 particular coin or bank note ; and 
 such allegation, so far as regards 
 the description of the property, 
 shall be sustained by proof of any 
 amount of coin or of any bank 
 note, although the particular spe- 
 cies of coin of which such amount 
 was composed, or of the particu- 
 lar nature of the bank note, shall 
 not be proved ; and in cases of 
 embezzlement and obtaining mon- 
 ey or bank notes by false preten- 
 ces, by proof that the offender 
 embezzled or obtained any piece 
 of coin, or any bank note, or any 
 portion of the value thereof, al- 
 though such piece of coin or bank 
 note may have been delivered to 
 him in order that some part of the 
 value thereof should be returned 
 to the party deUvering the same, 
 or to any other person, and such 
 part shall have been returned ac- 
 cordingly." 
 
 In an indictment for receiving 
 stolen tin, ingots of tin are properly 
 described as so many pounds weight 
 of tin. Meg. v. Mansfield, Car. & 
 M. 140 — Coleridge. 
 
 So it would be proper to describe 
 
 a bar of iron as so many pounds 
 weight of iron. lb. 
 
 But if an article has obtained, in 
 common parlance, a particular name 
 of its own, it would be wrong to 
 describe it by the name of the ma- 
 terial of which it is composed ; thus, 
 it would be a misdescription to de- 
 scribe cloth as so many pounds 
 weight of wool, or sovereigns as so 
 many ounces of gold. Tb. 
 
 Substances mechanically mixed 
 should not be described as " a cer- 
 tain mixture consisting of, &c.," but 
 by the names applicable to them 
 before such mixture. Secus, with 
 regard to substances chemically 
 mixed. Reg. v. JBond, 1 Den. C. C. 
 517— Aldei-son. 
 
 Bank notes are properly described 
 in an indictment for larceny as mon- 
 ey, although at the time they were 
 stolen they were not in circulation, 
 but were in tlie hands of the bank- 
 ers themselves. Reg. v. West, 2 
 Jur., N. S. 1123 ; 26 L. J., M. C. 6; 
 Dears. & B. C. C. 109. 
 
 Instruments need not be set out 
 in an indictment, except where it is 
 material for the court to see that 
 they fall within a particular descrip- 
 tion. That is not the case where a 
 false pretence is charged. Reg. v. 
 Cmlson, T. & M. 332 ; 1 Deri. C. 
 C. 592 ; 14 Jur. 557 ; 19 L. J., M. 
 C. 182. 
 
 An indictment for burglary charg- 
 ed an intent to steal goods and 
 chattels. The jury found that the 
 prisoner broke into the house with 
 intent to steal certain mortgage 
 deeds. The mortgage deeds were 
 valid subsisting securities for money 
 which the prosecutor had advanced 
 to the prisoner : — ^Held, that they 
 could not properly be described as 
 goods and chattels, and that the in- 
 dictment was not proved. Reg. v. 
 Powell, 5 Cox, C. C. 396 ; 2 Den. 
 C. C. 403; 21 L. J., M. C. 78. 
 
 (q) Value. 
 
 By 14 & 15 Vict. c. 100, s. 24, 
 " no indictment for any offence shall 
 
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494 
 
 PROCEDURE AND PRACTICE. 
 
 " be held insufficient for want of the 
 " statement of the value or price of 
 " any matter or thing, or the amount 
 " of damage, injury or spoil, in any 
 " case where the value or price, or 
 " the amount of damage, injury or 
 " spoil, is not of the essence of the 
 " offence." 
 
 By s. 5, "in any indictment for 
 '* stealing, embezzling, destroying 
 " or concealing, or for obtaining, by 
 " false pretences, any instrument, it 
 " is unnecessary to describe the val- 
 " ue thereof" 
 
 By 9 & 10 Vict. c. 62, " it shall 
 " not be necessary in any indict- 
 " ment or inquisition for homicide 
 " to allege the value of the instru- 
 " ment which caused the death of 
 " the deceased, or to allege that the 
 " same was of no value." 
 
 The word " guilder ", is sufficient- 
 ly an English word to justify its 
 use in an indictment as a transla- 
 tion of the Polish word " zlotych," 
 which is also called a guilder and 
 a florin. Hex v. Harris, 7 C. & P. 
 416. 
 
 Where a count stated that the 
 defendant made an assault upon a 
 person who was in lawful possession 
 of goods, under a levy for a speci- 
 fied sum of money for arrears of 
 assessed taxes, with intent unlaw- 
 fully to force him out of possession : 
 — Held, that it was necessary to 
 prove that the sj)ecific sum was due, 
 although no sum need have been 
 stated. Hex v. I^ord, 4 N. & M. 
 451. 
 
 Although to make a thing the 
 subject of an indictment for lar- 
 ceny, it must be of some value, and 
 stated to be 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. 
 Heg. V. Morris, 9 C. & P. 349 — 
 Parke. See 14 & 15 Vict. c. 100, 
 8. 5. 
 
 Where value is essential to con- 
 stitute an offence, and the value is 
 ascribed to many articles collective- 
 ly, the offence must be made out as 
 
 to every one of those articles, the 
 grand jury having ascribed the val- 
 ue only to all those articles collect- 
 ively. Hex V. Forsyth, R. & R. C. 
 C. 274. 
 
 (r) Contra Pacem and contra For- 
 mam Statvti. 
 
 By 14 &} 15 Vict. c. 100, s. 24, 
 " no indictment for any ofience 
 " shall be held insufficient for want 
 " of the averment of any matter 
 " unnecessary to be proved, nor for 
 " the omission of the words ' against 
 " the peace,' nor for the insertion of 
 " the words ' against the form of 
 " the statute,' instead of ' against 
 " the form of the statutes,' or vice 
 " versft." 
 
 Where an act of parliament does 
 not create an offence, but alters the 
 punishment for an offence at com- 
 mon law, it is not necessary that 
 the indictment should conclude con- 
 tra formam statuti. Williams v. 
 Hegi. (in error), 10 Jur. 155 ; 14L. 
 J.,'M. C. 164; 7 Q. B. 250. 
 
 An indictment preferred at the 
 assizes under the 7 & 8 Vict. c. 2, 
 for a crime committed on the high 
 seas, need not conclude contra for- 
 mam statuti. Heff. v. Serva, 2 C. 
 & K. 63 ; 1 Den. C. C. 104. 
 
 Where a statute declares an of- 
 fence and awards a punishment, and 
 by a subsequent act the punishment 
 is altered, the indictment for such 
 offence should conclude against the 
 form of the statutes. Ee^. v. Adams, 
 Car. & M. 299— Coleridge. 
 
 The omission of contra formam 
 statuti in an indictment for a stat- 
 utable offence, was good ground for 
 an arrest of judgment, and was not 
 cured by 7 & 8 Geo. 4, c. 64, ss. 
 20, 21. £eg. v. Raddiffe, 2 M. C. 
 C. 68 ; 2 Lewin, C. C. 57. 
 
 It was an objection to a convic- 
 tion of manslaughter on an indict- 
 ment for murder that the indict- 
 ment does not conclude contra for- 
 mam statuti. Rex v. Ghathum, 1 
 M. C. C. 403. 
 
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INDICTMENT. 
 
 496 
 
 In an indictment for an offence at 
 common law, a conclusion of contra 
 formam statuti might be rejected as 
 surplusage. Rex v. Mathews, 5 T. 
 K. 162 ; Nolan, 202. 
 
 It is an offence at common law to 
 obstruct the execution of powers 
 granted by statute, and an indict- 
 ment for such offence need not, and 
 ought not, to conclude contra for- 
 mam statuti. Rex v. Smith, 2 Dougl. 
 441. ^ 
 
 Where an indictment set out the 
 title of an old statute agreeably to 
 Ruffhead, which differed from a 
 copy of the act printed by the 
 king's printer, the court refused to 
 direct a nonsuit without proof of an 
 examination of the parliament rolls. 
 Rex V. Bamett, 3 Camp. 344 — El- 
 lenborough. 
 
 If one statute subjects an offence 
 to a pecuniary penalty, and a sub- 
 sequent statute makes it felony, an 
 indictment for the felony conclud- 
 ing against the form of the statute 
 (in the singular number only) is 
 right. Rex V. Pirn, R. & R. C. C. 
 425. 
 
 (s) Of joining Offences and Elect- 
 ing. 
 
 When Offences inay be joined.'] 
 — A person may be charged with 
 several offences of the same nature 
 in the same indictment, and the 
 judge will not, in cases of misde- 
 meanor, require the prosescutor to 
 confine himself to one offence. Rex 
 V. Jones, 2 Camp. 131 — Ellenbor- 
 ough. 
 
 It is no objection in arrest of 
 judgment that the indictment con- 
 tains several charges of the same 
 nature in the different counts. 
 Toung v. Rex (in eiTor), 3 T. R, 
 98. And see Rex v. Towh, 2 Marsh, 
 466. 
 
 If one pndeavours to commit two 
 separate offences, a count in an in- 
 dictment charging that endeavour 
 may contain those two offences. 
 Eex V. Fuller, 1 B. & P. 181. 
 
 Where several felonies are so con- 
 
 nected together as to form part of 
 one entire transaction, evidence of 
 them all may be given, in order to 
 prove a party indicted guilty of one. 
 Rex V. Ellis, 6 B. & C. 145 ; 9 D. 
 & R. 174. 
 
 If several felonies are charged in 
 the same indictment, it is not objec- 
 tionable, either upon demurrer or 
 in arrest of judgment, for on the 
 face of the indictment every count 
 imports to be for a different offence. 
 Anon., 2 Leach, C. C. 1105, n. 
 
 But if it appea'rs before plea, or 
 the jury is charged, that they are 
 separate offences, it is usual to quash 
 the indictment, lest it should con- 
 found the prisoner in his defence, or 
 prejudice him in his right of chal- 
 lenge. Ih. 
 
 Two indictments for the same of- 
 fence, one for the felony under a 
 statute, and the other for the mis- 
 demeanor at common law, ought 
 not to be preferred or found at the 
 same time. Rex v. Doran, 1 Leach, 
 C. C. 538. 
 
 The application for a prosecutor 
 to elect is an application to the dis- 
 cretion of the judge, founded on the 
 supposition that the case extends to 
 more than one charge, and may 
 therefore be likely to embarrass the 
 prisoner in his defence. Reg. v. 
 Trueman, 8 C. & P. 727— Erskine. 
 
 In a case of arson, the indictment 
 contained five counts, each of which 
 charged a tiring of a house of a dif- 
 ferent owner. It was opened, that 
 the five houses wer^ in a row, and 
 that one fire burnt them all. Upon 
 this opening, the judge would not 
 put the prosecutor to elect, as it was 
 all one transaction. lb. 
 
 A prosecutor will not be permit- 
 ted to give in evidence several dis- 
 tinct offences, involving different 
 transactions, under one indictment. 
 Rex V. Young, R. & R. C. C. 280, 
 n. — Le Blanc. 
 
 But several offences connected 
 with each other may. lb. And 
 see Rex v. Thomas, 2 East, P. C. 
 934. 
 
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496 
 
 PROCEDURE AND PRACTICE. 
 
 On an indictment against two, 
 charging them with a joint offence, 
 either may be found guilty; but 
 they cannot be found guilty separ- 
 ately of separate parts of the charge. 
 Hex V. Sampstead, R. & R. C. C. 
 344. 
 
 And if they are found guilty sep- 
 arately, upon a pardon or nolle 
 prosequi as to the one who stands 
 second upon the verdict, the judg- 
 ment may be given against the 
 other. Ih. 
 
 If two men a'l-e indicted, and 
 one of them appears to be innocent 
 and the other guilty, but the prose- 
 cutor cannot identify them respect- 
 ively, both must be acquitted. Rex 
 V. Richardson, 1 Leach, C. C. 387. 
 
 It is in the discretion of the judge 
 whether he will allow several felon- 
 ies to be given in evidence under 
 one indictment ; where they are, in 
 fact, so mixed as not to be separ- 
 ated without inconvenience, it will 
 be allowed. Reg. v. Hinhy, 2 M. 
 & Rob. 524— Maule. 
 
 Although evidence offered in sup- 
 port of an indictment for felony may 
 be proof of another felony, that cir- 
 cumstance does not render it inad- 
 missible, if the evidence is otherwise 
 receivable. Reg. v. Dossett, 2 C. & 
 K. 306— Maule. 
 
 It is no ground in arrest of judg- 
 ment, after a conviction for a felony, 
 that the indictment also contains a 
 count for a misdemeanor. Reg. v. 
 Ferguson, Dears. C. C. 427 ; 6 Cox, 
 C. C. 454 ; 1 Jur., N. S. 73 ; 28 L. 
 J.,M. C. 61. 
 
 It is no ground of objection to an 
 indictment in arrest of judgment 
 that it contains several counts for 
 distinct felonies. Reg. v. Heywood, 
 L. & C. 451 ; 9 Cox, C. C. 479 ; 33 
 L. J., M. C. 133; 12 W. R. 764; 
 lOL. T.,N. S.464. 
 
 The proper courseto pursue, when 
 such joinder has a tendency to em- 
 barrass a prisoner in his defence, is to 
 apply to the judge either to quash 
 the indictment or to compel the 
 
 prosecutor to elect on which count 
 he will proceed. Ih. 
 
 When the prosecutor must electj\ — 
 If two bills of indictment are prefer- 
 red for the same offence, the one 
 charging it capitally, the other as a 
 misdemeanor, and both are found, 
 the judge will put the party upon 
 his election which to go upon, and 
 direct an acquittal on the other. 
 Rex V. Smith, 3 C. & P. 412— 
 Vaughan. 
 
 If an indictment contains a count 
 for robbery, and a count for an as- 
 sault with intent to rob, the judge 
 will put the prosecutor to his elec- 
 tion. Rex V. Gough, I'M.. & Rob. 
 71— Park. 
 
 Where there are counts in an in- 
 dictment for forging a bill, accept- 
 ance, and indorsement, the prosecut- 
 or is not driven to elect on which he 
 will proceed. Rex v. Toung, Peake's 
 Add. Cas. 228— Le Blanc. 
 
 A prosecutor cannot maintain 
 two indictments for misdemeanor 
 for the same transaction : he must 
 elect to proceed with one and aban- 
 don the other. Rex v. Britten, 1 
 M. & Rob. 297— Patteson. 
 
 On an indictment for forgery, if a 
 second uttering is made the subject 
 of a distinct indictment, it cannot 
 be given in evidence to shew a guilty 
 knowledge in a former uttering. 
 Rex V. Smith, 2 C. & P. 633— 
 Vaughan. 
 
 A prisoner was indicted for night- 
 poaching, and it was proposed to 
 shew that on the occasion in ques- 
 tion one of the prosecutor's game- 
 keepers had lost his coat, and that 
 it was found in the prisoner's house. 
 There was another indictment 
 against the prisoner for stealing the 
 coat : — Held, that this evidence was 
 inadmissible, unless the prosecutor 
 consented to an acquittal (jn the in- 
 dictment for the larceny. Rex v. 
 Westwood, 4 C. & P. 547— Patteson. 
 
 A. was indicted for shooting at 
 B., a gamekeeper ; there being an- 
 
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INDICTMENT. 
 
 497 
 
 other indictment against A. for 
 night-poaching : — Held, that al- 
 though both indictments related to 
 the same transactions, yet these 
 "were offences quite distinct from 
 each other, and that the prosecutor 
 ought not to be put to his election 
 to go upon one indictment and to 
 abandon the other. Hex v. Handky, 
 5 C. & P. 565— Parke. 
 
 If two were indicted for a con- 
 spiracy and for a libel, and at the 
 close of the case for the prosecution, 
 there is evidence against both as to 
 the conspii-acy, but no evidence 
 against one of them as to the libel, 
 the judge will put the prosecutor 
 to elect which charge he will go 
 upon before the defendant's counsel 
 enters on the defence. Meg. v. 
 Murphy, 8 C. & P. 297— Coler- 
 idge. 
 
 An indictment contained counts 
 charging various misdemeanors, 
 amongst them counts for conspir- 
 acy. There being no evidence to go 
 to the jury upon the conspiracy only, 
 the prosecution was made to elect 
 upon which count the case should 
 be left to the jury. Reg. v. Braun, 
 9 Cox, C. C. 284— Martin. 
 
 A party was tiied upon an in- 
 dictment which contained two 
 counts, one for embezzlement, and 
 the other for larceny as a bailee. 
 At the close of the case for the prose- 
 cution, it was objected that the in- 
 dictment was bad for misjoinder 
 of counts, and the court thereupon 
 directed the counsel for the crown 
 to elect upon which count he would 
 proceed, the counsel for the prisoner 
 contending that such a course was 
 inadmissible. The counsel for the 
 crown elected to proceed upon the 
 second count, and on that count the 
 prisoner was convicted : — Held, that 
 the conviction was right. Reg. v. 
 Holman, L. & C. 177 ; 9 Cox, C. C. 
 201 ; 8 Jur., N. S. 1082 ; 10 W. R. 
 718 ; 6 L. T., K S. 474. 
 
 Certain wharfingers and their 
 servants being indicted in various 
 counts for conspiracy to defraud, by 
 
 false statements as to goods depos- 
 ited with them, and insured by the 
 owners against fire; one set of 
 counts being laid with reference to 
 a fire occurring on the 7th of June, 
 1864, and another, with reference 
 to a fire occurring on the 25th of 
 November, 1864:— Held, that the 
 prosecution must elect on which of 
 the two transactions, in the first in- 
 stance, to rely. Reg. v. Barry, 4 P. 
 & F. 389— Martin. 
 
 A prisoner being charged on sev- 
 eral counts with setting fire to a 
 buildmg described as in the occupa- 
 tion of different persons, also with 
 settmg fire to goods in a building 
 so described, the prosecutor was not 
 put to elect, as it might be all one 
 act. Reg. v. Davis, 3 P. & P. 19— 
 Wightman. 
 
 As to Larcenies. — See ante, 
 Laecent. 
 
 (t) Time and Mode of raising For- 
 mal Objections. 
 
 By 14 & 15 Vict. c. 100, s. 25, 
 " every objection to any indictment 
 " for any formal defect apparent on 
 " the face thereof shall be taken by 
 " demurrer on motion to quash such 
 " indictment before the jury shall be 
 " sworn, and not afterwards ; and 
 " every court before whom any such 
 " objection shall be taken for any 
 " formal defect may, if it be thought 
 " necessary, cause the indictment to 
 " be forthwith amended in such par- 
 " ticular by some officer of the court 
 " or other person, and thereupon 
 " the trial shall proceed as if no 
 " such defect had appeared." 
 
 By 7 Geo. 4, c. 64, s. 20, " in or- 
 " der that the punishment of ofiend- 
 " ers may be less frequently inter- 
 " cepted in consequence of technical 
 " niceties, no judgment upon any 
 " indictment or infoimation for any 
 " felony or misdemeanor, whether' 
 " after verdict or outlawry, or by 
 " confession, default or otherwise, 
 " shall be stayed or reversed for 
 
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498 
 
 PROCEDURE AND PRACTICE. 
 
 " want of the averment of any mat- 
 " ter unnecessary to be proved, nor 
 " for the omission of the words as 
 " appear by the record, or of the 
 " words with force and arms, or of 
 " the words against the peace, nor 
 " for the insertion of the words 
 " against the form of the statute, 
 " instead of the words against the 
 " form of the statutes, or vice versa, 
 " nor for that any person or persons 
 " mentioned in the indictment of in- 
 " formation is or are designated by a 
 " name of office or other descriptive 
 " appellation, instead of his, her, or 
 " their proper name or names, nor 
 " for omitting to state the time at 
 " which the offence was committed, 
 " in any case where time is not of 
 " the essence of the offence, nor for 
 " stating the time imperfectly, nor 
 " for stating the offence to have 
 " been committed on a day subse- 
 " quent to the finding of the indict- 
 " ment or exhibiting the informa- 
 " tion, or on an impossible day, or 
 " on a day never happened, nor for 
 " want of a proper or perfect venue, 
 " where the court shall appear by 
 " the indictment or information to 
 " have had jurisdiction over the of- 
 " fence." 
 
 A defendant in an indictment 
 cannot, after- plea, take advantage 
 of any defect which is aided after 
 verdict by 7 Geo. 4, c. 64, s. 20 ; 
 the only mode of taking advantage 
 of such defects being by demurrer. 
 Reg. V. FAlis, Car. & M. 564 ; S. P., 
 Reg. V. Law, 2 M. & Rob. 197. 
 
 An indictment charged the com- 
 mission of the offence " in the 10th 
 year of our Sovereign Lady Vic- 
 toria," not saying " of the reign " : 
 — Held, that the objection, if other- 
 wise valid, was cured by 7 Geo. 4, 
 c. 64. s. 20. Brown v. Reg. 3 Cox, 
 C. C. 49; 17 L. J., M. C. 152; 12 
 Q. B. 834. 
 
 (u) Amendment. 
 
 Statutory Power. 1 — ^By 14 & 15 
 Vict. c. 100, s. 1, " whenever on the 
 " trial of any indictment for any 
 
 felony or misdemeanor there shall 
 appear to be any variance between 
 the statement in such indictment, 
 and the evidence offered in proof 
 thereof, in the name of any county, 
 riding, division, city, borough, 
 town corporate, parish, township, 
 or place mentioned or described 
 in any such indictment, or in the 
 name or description of any person 
 or persons, or a body politic or cor- 
 porate, 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 in the 
 name or description of any person 
 or persons, body politic or corpor- 
 ate, therein stated or alleged to be 
 injured or damaged, or intended 
 to be injured or damaged, by the 
 commission of such offence, or in 
 the christian name or surname, or 
 both christian name and surname, 
 or other description whatsoever 
 of any person or persons whomso- 
 ever therein named or described, 
 or in the name or description of 
 any matter or thing whatsoever 
 therein named or described, or in 
 the ownership of any property 
 named or described therein, it " 
 shall and may be lawful for the 
 court before which the trial shall 
 be had, if it shall consider such 
 variance not material to the merits 
 of the case, and that the defend- 
 ant cannot be prejudiced thereby 
 in his defence on such merits, to 
 order such indictment to be 
 amended, according to the proof, by 
 some officer of the court or other 
 person, both in that part of the in- 
 dictment where such variance oc- 
 curs and in every other part of 
 the indictment which it may be- 
 come necessary to amend, on such 
 terms as to postponing the trial to 
 be had before the same or another 
 jury, as such court shall think 
 reasonable. 
 
 " And after any such amendment 
 the trial shall proceed, whenever 
 the same shall be proceeded with, 
 
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INDICTMENT. 
 
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 in the same manner in all respects, 
 and with the same consequences, 
 both with respect to the liability 
 of witnesses to be indicted for per- 
 jury and otherwise, as if no such 
 variance had occurred; and in 
 case such trial shall be had at Nisi 
 Prius, the order for the amend- 
 ment shall be indorsed on the 
 postea, and returned together with 
 the record, and thereupon such 
 papers, rolls, or other records of 
 the court from which such record 
 issued as it may be necessary to 
 amend, shall be amended accord- 
 ingly by the-proper officer; and in 
 all other cases the order for the 
 amendment shall either be indorsed 
 on the indictment or shall be en- 
 grossed on parchment, and filed, 
 together with the indictment, 
 among the records of the court. 
 " Provided, that in all such cases 
 where the trial shall be so post- 
 poned as aforesaid it shall be law- 
 ful for such court to respite the 
 recognizances of the prosecutor and 
 witnesses, and of the defendant, 
 and his surety or sureties, if any, 
 accordingly, in which case the 
 prosecutor and witnesses shall be 
 bound to attend to prosecute and 
 give evidence respectively, and 
 the defendant shall be bound to 
 attend to be tried at the time and 
 place to which such trial shall be 
 postponed, without entering into 
 any fresh recognizances for that 
 purpose, in such and the same 
 manner as if they were originally 
 bound by their recognizances to 
 appear or prosecute or give evi- 
 dence at the time and place to 
 which such trial shall have been 
 postponed : 
 
 " Provided always, that where 
 any such trial shall be to be had 
 before another jury, the crown 
 and the defendant shall respect- 
 ively be entitled to the same chal- 
 lenges as they were respectively 
 entitled to before the first jury 
 was sworn." 
 
 Validity of Verdicts and Judg- 
 ments after Amendment.^ — By s. 
 2, " every verdict and judgment 
 " which shall be given after the 
 " making of any amendment under 
 " the provisions of the act shall be 
 " of the same force and effect in 
 " all respects as if the indictment 
 " had originally been in the same 
 " form in which it was after such 
 " amendment was made." 
 
 Form of Records after Amend- 
 ment.}— Bj s. 3, " if it shall be- 
 " come necessary at any time for 
 " any purpose whatsoever to draw 
 " up a formal record in any case 
 " where any amendment shall have 
 " been made under the provisions 
 " of the act, such record shall be 
 " drawn up in the form in which 
 " the indictment was after such 
 " amendment was made, without 
 " taking any notice of the fact of 
 " such amendment having been 
 " made." 
 
 On Demurrer or Motion to quash 
 Indictment.] — By s. 25, " every ob- 
 " jection to any indictment for any 
 " formal defect apparent on the 
 " face thereof shall be taken, by 
 " demurrer or motion to quash such 
 " indictment, before the jury shall 
 " be sworn, and not afterwards; 
 " and every court before which any 
 " such objection shall be taken for 
 " any formal defect may, if it be 
 " thought necessary, cause the in- 
 " dictment to be forthwith amend- 
 " ed in such particular by some 
 " officer of the court or other per- 
 " son, and thereupon the trial shall 
 " proceed as if no such defect had 
 " appeared." 
 
 Meaning of Indictment.] — By s. 
 30, " the word indictment includes 
 " information, inquisition, and pre- 
 " sentment as well as indictment, 
 " and also any plea, replication, or 
 " other pleading, and any Nisi Pri- 
 " us record." 
 
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500 
 
 PROCEDURE AND PRACTICE. 
 
 Amendment.']—" Whereas a fail- 
 "ure of justice frequently takes 
 " place in criminal trials by reason 
 "of variances between writings 
 " produced in evidence and the re- 
 "cital or setting forth thereof in 
 " the indictment or information, 
 " and the same cannot now be 
 " amended at the trial except in 
 " cases of misdemeanor, for remedy 
 " thereof, be it enacted, that it shall 
 " and may be lawful for any court 
 " of oyer and terminer and general 
 " gaol delivery, if such court shall 
 " see fit so to do, to cause the in- 
 " dictment or infoiination for any 
 " offence whatever, when any vari- 
 " ance or variances shall appear 
 " between any matter in writing or 
 " in print produced in evidence and 
 " the recital or setting forth thereof 
 "in the indictment or information 
 " whereon the trial is pending, to 
 " be forthwith amended in such 
 " particular or particulars by some 
 " officer of the court, and after such 
 " amendment the trial shall proceed 
 " in the same manner in all re- 
 " spects, both with regard to the 
 " liability of witnesses to be in- 
 " dieted for perjury and otherwise, 
 " as if no such variance or vari- 
 "ances had appeared" (11 & 12 
 Vict. c. 46, B. 4.) 
 
 By 12 & 13 Vict. c. 45, s. 10, 
 " every court of general or quarter 
 " sessions of the peace, on the trial 
 " of any offence within its juris- 
 " diction, whenever any variance 
 " or variances shall appear between 
 " any matter in writing or in print, 
 " produced in evidence, and the re- 
 " cital or setting forth thereof in 
 " the indictment, shall have the 
 " same power in all respects to 
 " cause the indictment to be amend- 
 " ed, which is given to courts of 
 " oyer and terminer and general 
 " gaol delivery, with regard to of- 
 " fences tried before such last-men- 
 " tioned courts by virtue of the 1 1 
 " & 12 Vict. c. 46, s. 4, and after 
 " such amendment the trial shall 
 " proceed in the same manner in 
 
 "all respects both with regard to 
 " the liability of witnesses to be in- 
 " dieted for perjury and otherwise, 
 " as if no variance or variances had 
 " appeared." 
 
 Eaxrcising.^ — As a general rule, 
 a judge on thelrial of an indict- 
 ment will not allow an amendment 
 to be made after the counsel for 
 the defence has addressed the jury. 
 Eeff. V. Hymes, 3 C. & K. 326— 
 Williams. But see Hegi. v. Fvllar- 
 ton, 6 Cox, C. C. 194— Ir. C. C. R. 
 
 The proper course is for the pros- 
 ecutor's counsel to adduce all his 
 evidence and ask for the amend- 
 ment before he closes his case, and 
 if the amendment is made the pris- 
 oner's counsel addresses the jury 
 on the indictment as amended. Tb. 
 
 An amendment in the name of 
 the owner of stolen property may 
 be made at the trial. Reg. v. Yin- 
 cent, 2 Den. C. C. 464. 
 
 Where stolen property has been 
 laid in a wrong person, the indict- 
 ment may be amended, even after 
 the counsel for the prisoner has ad- 
 dressed the jury and closed his 
 case. Reg. v. Fullarton, 6 Cox, C. 
 C. 194— Ir. C. C. R. 
 
 A judge has power to amend the 
 description of an act of parliament 
 in an indictment. Reg. v. Westley, 
 Bell, C. C. 193 ; 29 L. J., M. C. 35 ; 
 5 Jur., N. S. 1362. 
 
 The court will not amend an in- 
 dictment by striking out the word 
 " feloniously," and thereby convert 
 the charge into a misdemeanor, 
 where the document given in evi- 
 dence to sustain a charge of forgery 
 will not sustain the charge of fel- 
 ony, although evidence of a com- 
 mon law misdemeanor. Reg. v. 
 Wright, 2 F. & P. 320— Hill. 
 
 A. and B. were indicted for as- 
 saulting a gamekeeper, they being 
 unlawfully upon land in the occu- 
 pation of one " George William 
 Frederick Charles Duke of Cam- 
 bridge." A witness proved that 
 " George William " were two of 
 
 Digitized by Microsoft® 
 
INDICTMENT. 
 
 501 
 
 the duke's christian names, and 
 that he had other christian names, 
 which, however, were unknown to 
 the witness. The court of quarter 
 session refused to amend by strik- 
 ing out the words " Frederick 
 Charles," and left it to the jury to 
 say whether they were satisfied, 
 upon the evidence, of the identity of 
 the Duke of Cambridge as occupier 
 of the land in question : — Held, 
 first, that the power of amendment 
 was in the discretion of the sessions, 
 and that such power should be ex- 
 ercised before a case goes to the 
 jury ; and that the court, therefore, 
 could not say that the sessions were 
 bound to amend. Reg. v. Frost, 
 Dears. C. C. 474; 6 Cox, C. C. 
 526; iJur., N. S. 406; 24 L. J., 
 M. C. 116. 
 
 Held, secondly, that the sessions 
 were right in refusing to make the 
 amendment asked, but that they 
 might have amended by striking 
 out all the christian names ; the in- 
 dictment could then have been sus- 
 tained, as containing a sufficient 
 descriptive appellation of the prose- 
 cutor, lb. 
 
 Held, thirdly, that as the indict- 
 ment stood, it contained matter of 
 description which ougj;it to have 
 been proved ; and as it was not, the 
 sessions ought to have directed an 
 acquittal. lb. 
 
 In an indictment for larceny of 
 property belonging to a barJdng 
 company, the property was laid to 
 be in the manager of the bank. 
 The banking business was carried 
 on by a joint-stock banldng com- 
 pany, and there were more than 
 twenty partners or shareholders; 
 but no registration, or appointment 
 of a public officer, under 7 Geo. 4, 
 c. 46, was proved. The judge 
 amended the indictment by stating 
 the property to be in " W." (one of 
 the pai-tners) " and others ":— Held, 
 that under 7 Geo. 4, c. 64, s. 14, 
 the amendment was right. Beg. 
 V. Fritohard, 8 Cox, C. C. 461 ; L. 
 & C s^ ■ 7 -Tnr.. N. S. 557 : 30 L 
 
 34;.7 Jur., N.S. 557; 
 
 J.,M. C. 169; 9 W.R. 579; 4 L. 
 T., N. S. 340. 
 
 When an indictment is amended 
 at the trial, the court of appeal 
 cannot consider it as it originally 
 stood, but only in its amended 
 form. Feg. v. Webster, L. & C. 
 77. 
 
 An indictment charged with the 
 intent to kill and murder Annie 
 Welton. The prosecution failed to 
 prove the child had ever borne such 
 a name : — Held, that the indictment 
 might be amended. Reg. v. Wel- 
 ton, 9 Cox, C. C. 297— Byles. 
 
 A feme sole, having recovered 
 judgment in a county court, after- 
 wards married, and subsequently to 
 her marriage issued a judgment 
 summons out of the London Small 
 Debts Court, within the jurisdiction 
 of which the defendant was resid- 
 ing. The judgment summons was 
 headed as in the plaint in the coun- 
 ty court, and objections being there- 
 unto taken, on behalf of the de- 
 fendant, the judge amended, by 
 striking out the name of the origi- 
 nal plaintiff, and substituting the 
 , names of her husband and herself 
 as plaintiffs. The defendant was 
 then examined, and at the conclu- 
 sion of his evidence the judge di- 
 rected him to be prosecuted for per- 
 jury, on which charge he was after- 
 wards tried and found guilty : — 
 Held, that the amendment was not 
 within the jm-isdiction of the judge, 
 and that there being no cause in 
 the altered name in existence, the 
 conviction could not be supported. 
 Reg. V. Fea/rce, 9 Cox, C. C. 258 ; 
 3 B. & S. 531 ; 9 Jur., N. S. 647 ; 
 11 W. R. 235 ; 7 L. T., N. S. 597. 
 An erroneous entry of the verdict 
 in criminal cases may be amended 
 from the judge's notes, but not 
 from the recollection of the judge. 
 Reg. V. Virrier, 12 A. & E. 317 ; 
 4P. &D. 161. 
 
 An indictment for receiving, al- 
 leged by mistake that the prosecu- 
 tor, instead of the prisoner, knew 
 that the goods were stolen. The 
 
 Digitized by Microsoft® 
 
502 
 
 PROCEDURE AND PRACTICE. 
 
 defect was not noticed till after 
 verdict, when a motion was made 
 in arrest of judgment; but the 
 court then amended the indict- 
 ment : — Held, that the amendment 
 could not be made after verdict; 
 and that the indictment was bad in 
 arrest of judgment. JReg. v. Lark- 
 in, 6 Cox, C. C. 377 ; 23 L. J., M. 
 C. 125 ; Dears. C. C. 365 ; 2 C. L. 
 R. 775. 
 
 Indictment for obstructing a foot- 
 way leading from A. to G. The 
 footway was for half a mile from 
 its commencement, as described in 
 the indictment, a carriage-way ; the 
 obstruction was in the part beyond : 
 — Held, that this was a misdescrip- 
 tion, which ought to be amended 
 under 14 & 15 Vict. c. 100, s. 1. 
 Beg. V. Sturge, 3 El. & Bl. 734; 
 18 Jur. 1052 ; 23 L. J., M. C. 172. 
 
 The judge has power, under 14 
 & 15 Vict. c. 100, s. 1, to amend 
 an indictment for perjury, describ- 
 ing the justices before whom the 
 perjury was committed as justices 
 for a county, where they are proved 
 to be justices for a borough only. 
 Beg. V. Western, 1 L. R., C. C. 
 122 ; 37 L. J., M. C. 81 ; 18 L. T., 
 N. S. 299 ; 16 W. R. 730 ; 11 Cox, 
 C. C. 93. 
 
 The secretary of a friendly so- 
 ciety, of which A. B. and others 
 were the trustees, was charged with 
 embezzling money belonging to the 
 society. In the indictment the 
 property was laid as " of A. B. and 
 others," without alleging that they 
 were trustees of the society : — Held, 
 that the indictment might be amend- 
 ed by adding the words " trustees 
 of," &c. Beg. v. Marks, 10 Cox, 
 C. C. 367— Chambers, C. S. 
 
 (v) NoUe prosequi. 
 
 A nolle prosequi can only be en- 
 tered by the authority of the attor- 
 ney-general. Beg. V. Dunn, 1 C. 
 & K. 730— Wightman ; S. P., M- 
 worthy V. Bird, 9 Moore, 430 ; 2 
 Bing. 258. 
 
 Where, in an indictment for per- 
 
 jury, the attorney-general enters a 
 nolle prosequi on the part of the 
 crown, he does so on bis own re- 
 sponsibility, and the Queen's Bench 
 will not interfere. Beg. v. Allen, 
 9 Cox, C. C. 120. 
 
 An attorney-general is at liberty, 
 after having entered a nolle prose- 
 qui on an indictment, to file an ex- 
 officio information for the same of- 
 fence ; and the pendency of an in- 
 dictment or an information is not a 
 good plea to an information subse- 
 quently filed against the same party 
 for the same ofience. Beg. v. Mitch- 
 el, 3 Cox, C. C. 93. 
 
 2. Gervtral Criminal Court. 
 
 (a) Jurisdiction. 
 
 (4 tfe 5 WUl. 4, c. 36 ; 9 £& 10 
 
 Vict. c. 24.) 
 
 19 & 20 Vict. c. 16, "enables 
 " the Court of Queen's Bench to 
 " order indictments against persons 
 " charged with indictable ofiences 
 " committed out of the jurisdiction 
 " of the Central Criminal Court, to 
 " be removed by certiorari, and to 
 " be tried thereat." 
 
 When, after the defendant is 
 ordered to be tried under the above 
 act at the^entral Criminal Court, 
 the Court of Queen's Bench will 
 not make it a condition under sect. 
 24 that the prosecutor shall furnish 
 the defendant with evidence which, 
 it is suggested, has been obtained 
 by the prosecutor since the tafcbg 
 of the depositions. Beg. v. Palmer, 
 5 El. & Bl. 1024. 
 
 It is not a sufficient ground for 
 the removal of an indictment, un- 
 der 19 & 20 Vict. c. 16, s. 3, for 
 trial at the Central Criminal Court, 
 that, on the occasion of the first 
 apprehension of the prisoner, some 
 months before the time for trial, 
 articles and paragraphs had ap- 
 peared in some papers of the par- 
 ticular town in which the trial 
 would take place, of a nature likely 
 to create prejudice against him, and 
 that the ease had become matter of 
 
 Digitized by Microsoft® 
 
TRIAL. 
 
 503 
 
 conversation amongst certain class- 
 es in that town, it not appearing 
 eithei- that those papers had a gen- 
 eral circulation in the county, or 
 that the case had become matter of 
 general conversation in the county, 
 as the jurors would he taken from 
 the county as well as the town. 
 Meg. V. Rvxton, 11 W. R. 209— 
 Q. B. 
 
 In a prosecution at the Central 
 Criminal Court for publishing a 
 libel, it is not necessary, for the pur- 
 pose of giving jurisdiction, that the 
 prosecutor should have entered into 
 recognizance, or that the defendant 
 should have been in custody, or be 
 bound to appear according to 4 & 
 5 Will. 4, c. 36, s. 13. Reg. v. 
 Gregory., 7 Q. B. 27-1 ; 9 Jur. 593 ; 
 14 ii. J., M. C. 82. 
 
 A. was indicted at the Central 
 Criminal Court for forgery. He 
 was not shewn either to have com- 
 mitted the forgery, or to have been 
 in custody within the jurisdiction of 
 the court till the moment before his 
 trial, when he surrendered in dis- 
 charge of his bail : — Held, that he 
 was triable in that court under 11 
 Geo. 4 & 1 Will. 4, c. 66, s. 21, as 
 being in custody within its jurisdic- 
 tion. Reg. V. Smythies, 1 Den. C. C. 
 498 ; 2 C. & K. 878 ; T. & M. 195; 
 19 L. J., M. C. 81. 
 
 The Central Criminal Court has 
 jurisdiction to try accessories before 
 the fact to the felony of casting 
 away and destroying a ship on the 
 high seas, on an indictment against 
 principal and accessory, though the 
 principal felon is not amenable to 
 justice. Reg. v. Wallace, 2 M. C. 
 C. R. 200 ; Car. & M. 200. 
 
 A British subject might be in- 
 dicted at the Central Criminal 
 Court under 9 Geo. 4, o. 31, s. 7, 
 for the murder of a foreigner out 
 of the queen's dominions. Reg. v. 
 Azzopardi, 1 C. & K. 208. 
 
 A foreigner, one of the crew 
 of a British ship, committed man- 
 slaughter on board a British ship 
 while it was in a tidal river in 
 
 France. The ship was in a part of 
 the river where the tide ebbs and 
 flows, and where great ships go : — 
 Held, that the Central Criminal 
 Court had jurisdiction to try the 
 oifender. Reg. v. Anderson, 11 
 Cox, C. C. 198 ; 17 W. R. 208 ; 19 
 L. T., N. S. 400; 38 L. J., M. C. 
 12; IL. R., C. C. 161. 
 
 3. Trial. 
 (a) Jurisdiction. 
 
 Trial.]— &Y 30 & 31 Vict. c. 35, 
 s. 10, " the governor of a prison is 
 " to bring up the body of any per- 
 " son indicted without writ of ha- 
 " beas corpus upon the order of a 
 " court of criminal jurisdiction for 
 " trial." 
 
 The jurisdiction of a recorder of 
 a borough is not determined or sus- 
 pended by the arrival of the judges 
 of assize in the same county, and 
 the rule applies equally to the juris- 
 diction of county justices of the 
 peace ; therefore general quarter 
 sessions of the peace for a borough 
 or county may be held concurrent, 
 ly with assizes in the same county, 
 though it would be highly incon- 
 venient to do so. Smith v. Reg. 
 (in error), 3 New Sess. Cas. 564; 
 13 Jur. 860 ; 18 L. J., M. C. 207— 
 Q.B. 
 
 Where the quarter sessions of a 
 county occur while the judge of as- 
 size is proceeding with the tiial of 
 prisoners in that county, after the 
 grand jury at the assizes has been 
 discharged, the better course is for 
 the quarter sessions not to proceed 
 with the trial of any prisoners, but 
 to dispose of all their other busi- 
 ness, and then to adjourn to a future 
 day. Anon., 9 C. & P. 790— Cole- 
 ridge. 
 
 One of the two defendants in an 
 indictment for conspiracy died after 
 the venire facias juratores was re- 
 turnable, and before trial ; the other 
 defendant was tried and found guilty: 
 — Held, no mistrial, although no sug- 
 gestion of the co-defendant's death 
 
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504 
 
 PROCEDURE AND PRACTICE. 
 
 had been entered on the record before 
 trial. Beg. v. Kenrick, D. & M. 
 208 ; 5 Q. B. 49 ; 7 Jur. 848; 12 
 L. J., M. C. 135. 
 
 (b) Arraignment and Plea. 
 (7 4-8 Geo. 4, c. 28, s. 1.) 
 
 Arraignments may be without 
 holding up the hand. Bex v. Bat- 
 cliffe, 1 W. Bl. 3. 
 
 Where a prisoner, on being ar- 
 raigned, stated that he was deaf, on 
 which the indictment was read over 
 to him, and he apparently did not 
 hear it : the judge directed a jury 
 to be empannelled to try whether 
 he stood mute by the act of God or 
 out of malice. Bex v. Halton, R. & 
 M. 78— Gifford. 
 
 And his counsel has a right to ad- 
 dress the jury and call witnesses for 
 him. Bex v. Boberts, Car. C. L. 57 
 — Park and Abbott. 
 
 If a person stands mute upon his 
 arraignment, the com-t may direct 
 the sheriif to return a jury instanter, 
 to try whether he stands mute ob- 
 stinately or by the visitation of God; 
 and if they find that he stands ob- 
 stinately mute, sentence may be 
 passed without further inquiry. Bex 
 V. Mercier; 1 Leach, C. C. 183 ; *S'. 
 P., Bex V. Steel, 1 Leach, C. C. 451. 
 
 Semble, that where a prisoner, 
 being called on to plead, remains 
 mute, the court cannot hear evi- 
 dence to prove that he does so 
 through malice, and th€n enter a 
 plea of not guilty under 7 & 8 Geo. 
 4, c. 28, s. 2 ; but a jury must be 
 empannelled to try the question of 
 malice, and it is upon their finding 
 that the court is authorized to enter 
 the plea. Beg. v. Israel, 2 Cox, C. 
 0. 263. 
 
 The 7 & 8 Geo. 4, e. 28, s. 2, 
 authorizing the court to direct a 
 plea of not guilty to be entered for 
 a party who stands mute of malice, 
 or will not answer directly to an in- 
 dictment, applies to the case of a 
 party who refuses to plead on the 
 ground that he had previously plead- 
 
 ed to another indictment- for the 
 same offence, but which indictment 
 was not valid in consequence of its 
 having been found upon the testi- 
 mony of witnesses not duly sworn 
 to give evidence before the grand 
 jury. Bex v. Bitton, 6 C. & P. 92 
 — Littledale. 
 
 A prisoner declining to plead to 
 an indictment, the comt directed a 
 plea of not guilty to be entered. 
 Beg. V. Bernard, 1 F. & F. 240. 
 
 A prisoner being arraigned on 
 two indictments for murder, and 
 having, with apparent intelligence, 
 pleaded to one and declined to plead 
 to the other, the plea of not guilty 
 was entered for him by statute with 
 the assent of his counsel. The case 
 being then opened, and the first 
 witness examined, and it being then 
 set up by his counsel that he was 
 insane, or not in a fit state to be 
 tried : — Held, that the proper time 
 for making that suggestion was be- 
 fore the prisoner pleaded ; and, had 
 it been so made, a jury should have 
 been empannelled to try the ques- 
 tion whether he was sane and in, a 
 fit state to be tried ; but as the trial 
 had been begun, and it would be 
 manifestly inconvenient to recom- 
 mence the trial of the collateral 
 issue, and as, moreover, the evidence 
 as to the prisoner's present sanity 
 was very much mixed up with the 
 general question of his sanity, it 
 was open to the court under 39 & 
 40 Geo. 3, c. 94, to take the whole 
 of the evidence, and then leave to 
 the jury both questions as to his 
 state of mind at the time of the act 
 and at the time of the trial. Beg. 
 V. Sovthey, 4 F. & F. 864— Mellor. 
 
 In criminal cases a defendant 
 cannot plead a special plea in addi- 
 tion to not guilty. Beg. v. Stra. 
 han, Paul and Bates, 7 Cox, C. C. 
 85; S. P., Beg. v. Skeen, 8 Cox, C. 
 C. 143 ; Bell, C. C. 97 ; 5 Jur., K 
 S. 151 ; 28 L. J., M. C. 91 : 7 W. 
 R. 255. 
 
 A prisoner, when called upon to 
 plead to an indictment, stood mute. 
 
 Digitized by Microsoft® 
 
TRIAL. 
 
 505 
 
 A jury was empannelled and sworn 
 to try whether he was mute of 
 malice or by the visitation of God. 
 A verdict of mute of malice having 
 been returned, the court ordered a 
 plea of not guilty to be entered on 
 the record. Jteg. v. Schleter, 10 
 Cox, C. C. 409 — Malcolm, Ker. 
 Com. 
 
 (c) 
 
 Withdrawing Plea of Not 
 CkiMy. 
 
 It is purely for the discretion of 
 the judge at the trial, whether a 
 plea of not guilty may be with- 
 drawn or not ; and the exercise of 
 such discretion cannot be reviewed 
 upon a case reserved. Beg.Y. Brown, 
 17 L. J., M. C. 135. 
 
 Where an indictment has been 
 removed and sent down to trial as a 
 Queen's Bench record, the defend- 
 ant cannot withdraw his plea of not 
 guilty and plead guilty. ,Rex. v. 
 Barrett, 2 Lewin, C. C. 264^-Al- 
 derson. 
 
 A prisoner who has pleaded guilty 
 to a charge of larceny, and upon 
 whom sentence has been passed, 
 cannot be allowed to retract his 
 plea and plead not guilty. Beg. v. 
 Sell, 9 C. & P. 346— Mirehouse, 
 C. S. 
 
 On the trial of an indictment for 
 forgery against two, one of them, 
 after the opening speech for the 
 prosecution, asked to be allowed to 
 withdraw his plea of not guilty and 
 to plead guilty. This was done, and 
 the plea of guilty was recorded. He 
 was then examined as a witness for 
 the prosecution against the other, 
 and swore that he had no knowledge 
 of the instrument being forced. 
 Upon this he was allowed to with- 
 draw his plea of guilty and to plead 
 not guilty, the jury withdrawing 
 their verdict. The trial of the other 
 party was then proceeded with, and, 
 on his acquittal, the one who had 
 withdrawn his plea was put upon 
 his trial. Reg. v. Glouter, 8 Cox, 
 C. C. 237— Bramwell. 
 
 Fish. Dig.-38. ^.^.^^^^ ^^ Microsoft® 
 
 (d) Standing in the Dock. 
 
 A person who surrenders to take 
 his trial, on a charge of felony at 
 the assizes, must be tried at the bar 
 of the court, and cannot take his 
 trial at any other part of the court, 
 even with the consent of the prose- 
 cutor. Reg. V. St. George, 9 C. & 
 P. 483— Parke. 
 
 A merchant was indicted for an 
 offence against the act of parliament 
 prohibiting slave-trading. His coun- 
 sel applied to the court to allow 
 him to sit by him, not on the ground 
 of his position in society, but be- 
 cause he was a foreigner, and sev- 
 eral of the documents in the case 
 were in a foreign language, and it 
 would, therefore, be convenient for 
 his counsel to have him by his side, 
 that he might consult him during 
 his trial : — Held, that the applica- 
 tion was one which ought not to be 
 granted. Reg. v. Zulueta, 1 0. & 
 K. 215 — Mau'le and Wightman. 
 
 Where a captain in the army 
 surrendered in discharge of his bail 
 to take his trial, for feloniously 
 shooting at another (in a duel), with 
 intent to kill him : — Held, that he 
 must take his place within the dock 
 like all other prisoners charged with 
 felony; but on his expressing a wish 
 to that effect, he was allowed to 
 have three friends to stand beside 
 him there. Reg. v. Douglas, Car. & 
 M. 193— Williams. 
 
 But a defendant who surrenders 
 to take his trial on a charge- of mis- 
 demeanor need not stand at the bar 
 to be tried, but may be allowed a 
 place at the table of the court. 
 Reg. V. Lovett, 9 C. & P. 462— Lit- 
 tledale. 
 
 (e) Reading Indictment. 
 
 On a trial for felony the prisoner 
 is entitled to have the indictment 
 read slowly over once, and once 
 only. Reg. v. Bowling, 3 Cox, C. 
 C. 509. 
 
 An indictment for perjury, re- 
 moved by certiorari, came on to be 
 
506 
 
 PROCEDURE AND PRACTICE. 
 
 tried as a Nisi Prius record. As 
 soon as the jury was sworn, the de- 
 fendant asked to have the indict- 
 ment read at length to the court 
 and jury. The judge directed it to 
 be done. Reg. v. Newton, 1 C. & 
 K. 469 — Atcherley, Serjeant. 
 
 (f) Separate Trial. 
 
 Where several prisoners are joint- 
 ly indicted, the judge will not allow 
 a separate trial on the ground that 
 the depositions disclose statements 
 and confessions made by one pris- 
 oner implicating another, which are 
 calculated to prejudice the jury, and 
 that there is no legal evidence dis- 
 closed against the other prisoner. 
 Beg. V. Blackburn, 6 Cox, C. C. 333 
 — Talfourd. 
 
 is) J^ight of Acquittal on Budict- 
 ment of Several. 
 
 If several are charged with the 
 same offence, and no evidence is 
 given against one of them, he is en- 
 titled to an acquittal before the 
 others are called upon for their de- 
 fence, to enable them to call him as 
 a witness. Bounty case, 1 East, 
 313, n. And see Bex v. Bowland, 
 R. & M. 401. 
 
 On an indictment against several 
 persons, the counsel for the prosecu- 
 tion has a right, before opening his 
 case, to the acquittal of any defend- 
 ant he intends to call as a witness. 
 Bex V. Bowland, R. & M. 401— 
 Abbott. And see Rex v. Kroehl, 2 
 Stark. 343 ; 11 East, 313, n. ; Beg. 
 V. Owen, 9 C. & P. 83. 
 
 If two persons are jointly indicted 
 for obstructing a highway, and on 
 the evidence no joint act of obstruc- 
 tion appears, the j udge will, as soon as 
 the case for the prosecution is closed, 
 put the prosecutor's counsel to elect 
 which of them they wiU proceed 
 against, and then take an acquittal 
 for the other. Rex v. Lynn, 1 C. & 
 P. 528— Littledale. 
 
 (h) B^ost'poning or adjourning 
 Trial. 
 
 By 14 & 15 Vict. c. 100, s. 26, 
 part of 60 Geo. 3 & 1 Geo. 4, c. 4, 
 "as to the traverse of indictments 
 " in misdemeanors is repealed." 
 
 By s. 27, " no person prosecuted 
 " shall be entitled to traverse or 
 " postpone the trial of any indict- 
 " ment against him at any session of 
 " the peace, session of oyer and ter- 
 " miner or session of gaol delivery : 
 " provided always, that if the court, 
 " upon the application of the person 
 " so indicted or otherwise, shall be 
 " of opinion that he ought to be al- 
 '' lowed a further time, either to 
 " prepare for his defence or other- 
 " wise, such court may adjourn the 
 " trial of such person to the next 
 " subsequent session, on such terms 
 " as to bail or otherwise as to such 
 " court shall seem meet, and may 
 " respite the recognizances of the 
 " prosecutor and witnesses accord- 
 " ingly, in which case the prosecu- 
 " tor and witnesses shall be bound 
 " to attend to prosecute and give 
 " evidence at such subsequent ses- 
 " sion without entering into any 
 " fresh recognizance for that pur- 
 " pose." 
 
 Postponing.'\ — A prisoner's coun- 
 sel moved tp postpone a trial for 
 murder, on an affidavit which stated 
 that one of the witnesses for the 
 prosecution, who had been bound 
 over to appear at the assizes, was 
 absent, and that on cross-examina- 
 tion that witness could give mate- 
 rial evidence for the prisoner : — 
 Held, that this was sufficient ground 
 for postponing the trial, without 
 shewing that any endeavour had been 
 made on the part of the prisoner to 
 procure the witness's attendance, as 
 the prisoner might necessarily ex- 
 pect, from his having been bound 
 over, that he would appear. Beg. 
 V. MaOarihy, Car. & M. 625 — 
 Cresswell. , 
 
 A defendant in an indictment for 
 
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TRIAL. 
 
 50T 
 
 perjury, tried at the sittings in the 
 Queen's Bench, was arrested on the 
 Wednesday before the trial, as he 
 was going to the chambers of his 
 counsel to deliver his brief The 
 case was called on for trial on the 
 Saturday, and the judge would not 
 postpone it unless it could be shewn 
 that the arrest was by collusion 
 with the prosecutor ; and the fact 
 that a witness for the prosecution 
 stood by while the arrest took 
 place is not sufficient to raise that 
 inference. Reg. v. Gordon, Car. i& 
 M. 410— Denman. 
 
 An application to postpone the 
 trial of a prisoner charged with mur- 
 der, in order to afford an oppor- 
 tunity of investigating the evidence 
 and characters of certain witnesses, 
 who had not been examined before 
 the committing magistrate, but who 
 were to be called for the prosecu- 
 tion to prove previous attempts by 
 the accused on the life of the de- 
 ceased, was refused, lieg. v. John- 
 son, 2 C. & K. 354— Alderson. 
 
 If it is moved, on the part of the 
 prosecution in a felony, to put off 
 the trial, on the ground of the ab- 
 sence of a material witness, who has 
 not made a deposition before the 
 committing magistrate, the judge 
 will require an affidavit stating what 
 points the witness is expected to 
 prove, in order that he may form a 
 judgment as to the witness being 
 material or not. Reg. v. Savage, 
 1 C. & K. 75— Erskine. 
 
 An affidavit of a surgeon, that a 
 witness is the mother of an un- 
 weaned child, which is afflicted 
 with inflammation of the lungs, and 
 that the child could neither be 
 brought to the assize town nor sep- 
 arated from its mother without 
 danger to its life, is sufficient ground 
 for the absence of the witness, in or- 
 der to found a motion to postpone 
 the trial. Ih. 
 
 A trial for murder was put off un- 
 til the next assizes, upon an applica- 
 tion on the part of the prosecution, 
 on the ground of the inability of a 
 
 material witness to attend, although 
 the witness was not examined be- 
 fore the magistrates, there being an 
 affidavit of a medical. man as to an 
 injury to the witness, rendering it, 
 in his opinion, unsafe that he should 
 travel, and this even after the trial 
 had been appointed for a particular 
 day. Reg. v. Lawrence, 4 F. & P. 
 901— Channell. 
 
 Before the spring assizes, 1840, 
 A. was committed to take his trial 
 at those assizes for shooting B. The 
 trial was postponed to the summer 
 assizes, on the ground that B. was 
 too ill from his wounds to be able 
 to attend to give evidence. Be- 
 fore the summer assizes B. died, and 
 at those assizes a true bill for the 
 murder of B. was found against A., 
 and application was made, on the 
 part of the prosecution, to postpone 
 the trial to the next spring assizes, on 
 the ground of the illness of a material 
 witness. The judge granted the ap- 
 plication, and held, that A. was not 
 entitled to his discharge under the 
 7th section of the Habeas Corpus 
 Act. Reg. V. Bowen, 9 C. & P. 509 
 — WilUams. 
 
 Where it was stated by the grand 
 jury on their returning a true bill 
 for murder, that an important wit- 
 ness was too ill to give evidence in 
 court, the jury directed two sur- 
 geons to see the witness ; and on 
 their stating on the voir dire that 
 the witness was too ill to give evi- 
 dence in court, the judge ordered 
 the trial to be postponed to the next 
 assizes, and the prisoner to be de- 
 tained in custody. Reg. v. Chap- 
 man, 8 C. & P. 558 — Abinger. 
 
 An issue upon the identity of a 
 person is to be tried instanter. Rex 
 V. Rogers, 3 Burr. 1809. 
 
 A j udge at the assizes may post- 
 pone a trial until the next assizes, if 
 he finds the principal witness wholly 
 incompetent to take an oath from 
 ignorance ; and may order the wit- 
 ness to be instructed in the mean 
 time by a clergyman in the princi- 
 ples of his duty, and the nature and 
 
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508 
 
 PROCEDURE Am) PRACTICE. 
 
 obligation of an oath. Rex v. White, 
 1 Leach, C. C. 430. 
 
 A motion to put oif a trial, on an 
 indictment for felony, cannot be en- 
 tertained until after plea pleaded. 
 It is a good ground for putting off 
 a trial, that the jury panels at the 
 assizes have been taken from a 
 neighbourhood where an excite- 
 ment has been raised against the 
 prisoner likely to prevent a fair tri- 
 al. Reg. V. Bolam, 2 M. & Rob. 
 192 — Alderson and Parke. 
 
 If it is moved on the part of the 
 prosecution in a case of felony to 
 postpone the trial on the ground of 
 the absence of a material witness, 
 the practice, where the absence of 
 the witness can be traced to the acts 
 of the prisoner or his friends, is not to 
 discharge tho prisoner from custody, 
 except on very sufficient bail ; but 
 where no collusion appears between 
 the absent witness and the prisoner, 
 or his friends, the practice is to dis- 
 charge the prisoner on his own re- 
 cognizance. Rex V. Beardmore, 7 
 C. & P. 497— Patteson. 
 
 A defendant indicted for misde- 
 meanors, committed by him in the 
 West Indies in a public capacity, 
 under 42 Geo. 3, c. 85, is not en- 
 titled, upon an affidavit in the com- 
 mon form of putting off a trial upon 
 the absence of a material witness, 
 to put off his trial until return made 
 to writs of mandamus to the courts 
 abroad, to examine witnesses, which 
 are directed to be issued in such 
 cases at the discretion of the court ; 
 but he must lay before the court 
 such special grounds by affidavit, 
 as may reasonably induce them to 
 think that the witnesses sought to 
 be examined are material to his de- 
 fence. But the prosecutor in such 
 case is of course entitled to writs of 
 mandamus for the like purpose. Rex 
 V. Jones, 8 East, 31. 
 
 The court will postpone until the 
 next assizes the trial of a prisoner 
 charged with murder, on an affidavit 
 by his mother that she would be en- 
 abled to prove by several witnesses 
 
 that he was of unsound mind, and 
 that she and her family were in ex- 
 treme poverty, and had been unable 
 to procure the means to produce 
 such witnesses, and that she had 
 reason to believe that if time were 
 given to her the requisite funds 
 would be provided. Reg v. Lang, 
 hurst, 10 Cox, C. C. 353 ; 4 F. & F. 
 969— Channeil. 
 
 The affidavit of the prisoner's at- 
 torney, setting forth the information 
 he had received from the mother, 
 was held to be insufficient. lb. 
 
 Adjourning.] — The judge in a 
 case of felony has no authority to 
 order an adjournment (i. e. to an- 
 other day) on account of the mere 
 absence of the prosecutor and his 
 witnesses. Reg. v. Parr, 2 F. & F. 
 861— Wightman. 
 
 Or to adjovim a criminal trial 
 when once the jury is sworn. Reg. 
 V. Tempest, 1 F. & F. 381— Wat- 
 son. 
 
 But a prisoner's trial may be ad- 
 journed if the case has only been 
 opened by counsel for the prosecu- 
 tion, but not after evidence has 
 been called. Reg. v. Robson, 4 F. 
 & F. 360— Willes. 
 
 (i) Illness of Prisoner during Trial. 
 If a prisoner indicted for a felony, 
 with whom the jury is charged, is 
 by sudden illness during the trial 
 rendered incapable of remaining at 
 the bar, the jury may be discharged 
 from the trial of that indictment, 
 and the prisoner, on bis recovery, 
 tried by another jury. Rex v. Ste- 
 venson, 2 Leach, C C 546. 
 
 (j) Trial on a Verdict in a Civil 
 Case. 
 
 If a verdict is found for a defend- 
 ant in an action of slander ; on a 
 justification of words of felony, the 
 plaintiff may be arraigned without 
 a grand jury. Cooh v. Field, 3 Esp. 
 133— Kenyon. 
 
 In an action for money received, 
 if it appears that the defendant re- 
 
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PLEAS IN ABATEMENT. 
 
 509 
 
 ceived the money from the plamtiff 
 to carry to a bank, and that instead 
 of so doing he kept it, the judge will 
 leave it to the jm-y to say, whether 
 he received it with an intent to steal 
 it, and then feloniously converted it ; 
 and if the jury finds this in the af- 
 firmative, the judge will direct a 
 verdict to be entered for the defend- 
 ant, and that the defendant shall be 
 tried for the felony on this finding. 
 I'rosser v. Eowe, 2 C. & P. 421— 
 Parke. 
 
 4. Pleas in Abatement. 
 
 The 7 Geo. 4, c. 64, s. 19, "for 
 " preventing abuses from dilatory 
 " pleas, enacts, that no indictment 
 " or infoi-mation shall be abated by 
 " reason of any dilatory plea of mis- 
 " nomer, or of want of addition, or 
 " of wrong addition of the party of- 
 " fering such plea, if the court shall 
 " be satisfied by afiidavit or other- 
 " wise of the truth of such plea ; 
 "but in such case the court shall 
 " forthwith cause the indictment or 
 " information to be amended ac- 
 " cording to the truth, and shall 
 " call upon such party to plead 
 "thereto, and shall proceed as if 
 " no such dilatory plea had been 
 " pleaded." 
 
 The court will not allow a defect- 
 ive plea in abatement, to an indict- 
 ment for a misdemeanor, to be 
 amended. Hex v. Cooke, 4 D. & 
 R. 592; 2B. & C. 871. 
 
 Before this enactment, one indict- 
 ed for a misdemeanor might plead 
 in abatement a misnomer of his sur- 
 name— Shakepeare for Shakespeare, 
 which need not be taken for idem 
 * sonans ; and the plea concluding 
 with praying judgment of the in- 
 dictment, that he might not be com- 
 pelled to answer the same, was good. 
 fiex V. Shahpeare, 10 East, 83. 
 
 Where a defendant was indicted 
 with an alias dictus, and pleaded in 
 abatement that he was not known 
 by such name, the plea must have 
 been demurred to, or issue taken 
 thereon ; and it could not be quash- 
 
 ed on motion. Hex v. Olark, alias 
 Jones, 1 D. & R. 43 ; S. P., Rex v. 
 Cooke, 4 D. & R. 114 ; 2 B. & C. 
 618. 
 
 Where a defendant pleaded in 
 abatement to an indictment for a 
 misdemeanor, that he was a peer, 
 such plea was bad on demurrer, for 
 not stating that he was a peer of 
 the united kingdom, and shewing 
 in what manner he derived his title. 
 Rex V. Cooke, 4 D. & R. 592 ; 2 B. 
 & C. 871. 
 
 A dilatory plea to an indictment 
 was set aside for want of an affidavit 
 to verify it. Rex v. Grainger, 3 Burr. 
 1617 ; ^S". P., Reg. v. Duffy, 9 Ir. L. 
 R. 163. 
 
 A defendant in an indictment for 
 a misdemeanor cannot plead over to 
 the charge, after a plea in abate- 
 ment for a misnomer, on which is- 
 sue was taken and found against 
 him. Rex v. Gibson, 8 East, 107. 
 See Reg. v. Phelps, Car. & M. 180. 
 
 A plea in abatement is a dilatory 
 plea, and must be pleaded with 
 strict exactness. 0' Oonnell v. Reg. 
 (in error), 11 C. & F. 155 ; 9 Jur. 
 25. 
 
 Although the prosecutor having 
 demurred to a plea in abatement 
 concluded in bar, praying final 
 judgment :— Held, that the • court 
 was not precluded thereby, but was 
 bound to give that judgment which 
 was right on the whole record. 
 Reg. V. Mitchell, 3 Cox, C. C. 94. 
 
 Where a replication to a plea in 
 abatement introduces new matter, 
 upon which issue may be taken, the 
 prosecutor is entitled to pray final 
 judgment. lb. 
 
 5. Pleas of Autrefois Convict and 
 Acquit. 
 Statute.]— Bj 14 & 15 Vict. c. 
 100, s. 28, " on any plea of autre- 
 " fois convict or autrefois acquit, it 
 " shall be sufficient for any defend- 
 " ant to state that he has been law- 
 " fully convicted or acquitted, as 
 " the case may be, of the said of- 
 " fence charged in the indictment." 
 
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510 
 
 PROCEDURE AND PRACTICE. 
 
 VaUditi/.]—A plea of autrefois 
 convict or acqiiit, which shews that 
 the j iidgment on the former indict- 
 ment has been reversed for error in 
 the judgment, is not a good bar to 
 a subsequent indictment for the 
 same offence. liecf. v. Drury, 3 C. 
 & K. 193 ; 18 L. J., M. C. 189— C. 
 C. R. 
 
 Where, by reason of some defect 
 in the record, either in the indict- 
 ment, place of trial, process or the 
 like, a prisoner has not been lawful- 
 ly liable to suffer judgment for the 
 offence charged, he has liot been in 
 jeopardy in the same, which entitles 
 him to plead the former proceeding, 
 in bar to a subsequent indictment. 
 lb. 
 
 A prisoner is lawfully liable to suf- 
 fer punishment on an erroneous re- 
 cord, until it is reversed in a court 
 of error. lb. 
 
 A judgment reversed is the same 
 as no judgment ; and upon a record 
 without any judgment no punish- 
 ment can be inilicted. lb. 
 
 A plea of autrefois convict of an 
 assault before justices, under 9 Geo. 
 4, c. 31, s. 27, is a bar to an indict- 
 ment for feloniously stabbing in the 
 same transaction. Req. v. Walker, 
 2 M. & Rob, 446— Coltman. 
 
 But a previous summary convic- 
 tion for an assault under 24 & 25 
 Vict. c. 100, s. 45, is not a bar to 
 an indictment for manslaughter of 
 the party assaulted, founded upon 
 the same facts, lieg. v. Morris, 10 
 Cox, C. C. 480; 36 L. J., M. C. 84; 
 1 L. R. C. C. 90. 
 
 Two were indicted for having, on 
 the 10th November, 1849, assaulted 
 P. They pleaded autrefois acquit, 
 and in their plea set out an indict- 
 ment for murder, the third count of 
 which alleged that they had mur- 
 dered the deceased, by beatings on 
 the 5th November and 1st Decem- 
 ber, 1849, and 1st January, 1850, 
 and on divers other days between 
 the 5th November and 1st January; 
 and the plea averred that the as- 
 saults charged jn the second indict- 
 
 ment were identically the same as 
 those of which they had been ac- 
 quitted on the trial of the first. 
 The replication ^v'as, that the pris- 
 oners were not acquitted of the fel- 
 ony and murder, including the same 
 identical assaults charged in the in- 
 dictment. On the first trial the 
 counsel for the crown had stated the 
 assaults as conducing to the death, 
 and had given them in evidence to 
 sustain the charge of murder. It was 
 proved, however, that the cause of 
 death was a blow inflicted shortly 
 before the death of the deceased, 
 which occurred on the 4th January, 
 but there was no evidence to shew 
 by whom the blow was struck ; and 
 the prisoners were acquitted. The 
 judge, on the second trial, told the 
 jury, that if they were satisfied that 
 there were several distinct and in- 
 dependent assaults, some or any 
 one of which did not in any way 
 conduce to the death of the de- 
 ceased, it would be their duty to 
 find the prisoners guilty. The jury 
 found the prisoners guilty : — Held, 
 that the conviction was right, as 
 the prisoners could not, on the trial 
 for murder, have been convicted, 
 under 7 Will. 4 & 1 Vict. c. 85, s. 
 11, of the assaults for which they 
 were indicted on the second trial. 
 Reg. V. Bird, T. & M. 437 ; 2 Den. 
 C. C. 94 ; 15 Jur. 193 ; 20 L. J., M. 
 C. 70; 5 Cox, C. C. 11. 
 . An acquittal on an indictment 
 for rape could not be successfully 
 pleaded to a subsequent indictment 
 for an assault with intent to com- 
 mit a rape, nor could an acquittal 
 on an indictment for feloniously 
 stabbing, with intent to do griev- 
 ous bodily harm, be successfully 
 pleaded to an indictment for an as- 
 sault, though, in each case, the 
 transaction was the same, and the 
 accused might have been convicted 
 of an assault under 7 Will. 4 & 1 ' 
 Vict. c. 85, s. 11. Reg. v. Gisson, 
 2 C. & K. 781— C. C. R. 
 
 On the trial of an information for 
 a misdemeanor the judge discharged 
 
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PLEAS OP AUTREFOIS 
 
 CONVICT, ETC, 
 
 511 
 
 the juiy. The defendant then put 
 a plea on the record, setting out the 
 facts under which the jury was dis- 
 charged, in the nature of a plea au- 
 trefois acquit : — Held, that this 
 matter could not be raised by way 
 of plea, but must be raised by way 
 of error on the record after convic- 
 tion. Reg. V. Gharlesworih, 9 W. 
 R. 805 ; 5 L. T., N. S. 150 ; 4 L. T., 
 N. S. 638— Q. B. 
 
 The prisoner stole the goods of J. 
 
 B. from his stall, which at the time 
 was in charge of R. B. his son, a 
 child of fourteen, who lived with 
 his father, and worked for him. 
 The first ipdictment against him 
 for stealing the goods described 
 them as the property of R. B. The 
 sessions tliinking this a wrong de- 
 scription directed an acquittal, and 
 caused a new bill to be sent up lay- 
 ing the property in J. B. To this in- 
 dictment he pleaded autrefois acquit: 
 — Held, that the plea could not be 
 sustained, for the prisoner could not, 
 on the evidence, have been convict- 
 ed on the first indictment, charg- 
 ing the property as that of R. B., 
 and that the court could only look 
 at the first indictment as it stood, 
 without considering whether the al- 
 legation as to the ownership of the 
 goods might not have been amend- 
 ed so as to have warranted a con- 
 viction. Reg. V. Green, Dears. & B. 
 
 C. C. 113; 2 Jur., K S. 1146; 26 
 L. J., M. C. 17 ; 7 Cox, C. C. 186. 
 
 A plea of autrefois acquit cannot 
 be pleaded unless the facts charged 
 in the second indictment would, if 
 true, have sustained the first. Rex 
 V. Vandercomh, 2 East, P. C. 519 ; 
 2 Leach, C. C. 708. 
 
 A plea autrefois acquit of a burg- 
 lary, where the felony is laid as act- 
 ually committed, cannot be j^lead- 
 ed to an indictment for the same 
 burglary laid with intent to com- 
 mit the felony, for they are two dis- 
 tinct and difi'erent ofiences. lb. 
 
 If a party charg-ed with the crime 
 of murder, committed in the perpe- 
 tration of a burglary, is generally 
 
 acquitted on that indictment, he 
 cannot aftei-wards be convicted of 
 the burglary with violence, as the 
 general acquittal on the charge of 
 murder would be an answer to that 
 part of the indictment containing 
 the allegation of violence. Reg. v. 
 Gould, 9 C. & P. 364— Tindal and 
 Parke. 
 
 If, in a plea of autrefois acquit, 
 the prisoner was to insist on two 
 distinct records of acquittal, his plea 
 would be bad for duplicity. Rex v. 
 Sheen,. 2 C. & P. 635— Burrough 
 and Littledale. 
 
 If the prisoner could have been 
 legally convicted on the first indict- 
 ment upon any evidence that might 
 have been adduced, his acquittal on 
 that indictment may be successfully 
 pleaded to a second indictment ; 
 and it is immaterial whether the 
 proper evidence was adduced at the 
 trial of the first indictment or not. 
 lb. 
 
 A person was acquitted of an as- 
 sault with intent to murder, but 
 was convicted of an assault with in- 
 tent to do grievous bodily harm, 
 and the prosecutor having subse- 
 quently died, he was indicted for 
 murder : — Held, that he was prop- 
 erly indicted. Reg. v. Salvi,lQ Cox, 
 C. C. 481, n. 
 
 A first count for murdering a 
 male bastard child, stated that the 
 prisoner gave and administered a 
 large quantity of oil of vitriol, and 
 forced the child to take into his 
 mouth and throat a large quantity 
 of the said oil of vitriol, the prison- 
 er knowing that the said oil of vit- 
 riol would occasion the death of the 
 child, whereby he became disor- 
 dered in his mouth and throat, and 
 by the disorder, choking, suffocat- 
 ing, and strangling occasioned there- 
 by, languished and died. The sec- 
 ond count was for murdering the 
 child, by administering a certain 
 acid called oil of vitriol, and forcing 
 the child to take a large quantity of 
 the said acid into his mouth and 
 throat, by means whereof he be- 
 
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512 
 
 PROCEDURE AND PRACTICE. 
 
 came injured and disordered in his 
 mouth and throat, and incapable of 
 swallowing his food, and died of the 
 inflammation, injury and disorder 
 occasioned thereby. A plea, that 
 the prisoner had been acquitted for 
 murdering a base infant male child, 
 by giving and administering a cer- 
 tain deadly poison, to wit, oil of vit- 
 riol, and by forcing the child to 
 take, drink, and swallow down a 
 large quantity of the said oil of 
 vitriol, the prisoner knowing it to 
 be a deadly poison, whereby the 
 child became sick and distempered 
 in his body, and, by the sickness and 
 distemper occasioned thereby, lan- 
 guished and died, is a good bar to 
 the indictment. Rex v. Clark, 1 B. 
 & B. 473. 
 
 One was indicted in Middlesex 
 for perjury committed in an affi- 
 davit, which indictment, after set- 
 ting out so much of the aflBdavit as 
 contained the false oath, and on 
 this he was acquitted ; after which 
 he was indicted again in Middlesex 
 for the same perjury, with this dif- 
 ference only, that the second indict- 
 ment set out the jurat of the affi- 
 davit, in which it was stated to have 
 been sworn in London ; which was 
 traversed by an averment that in 
 fact the defendant was so sworn in 
 Middlesex, and not in London : — 
 Held, that he was entitled to plead 
 autrefois acquit, for the jurat was 
 not conclusive as to the place of 
 swearing ; and the same evidence as 
 to the real place of swearing the 
 affidavit might have been given un- 
 der the first as under the second in- 
 dictment, and therefore the defend- 
 ant had been once before put in 
 jeopardy for the same offence. Rex 
 V. Emden, 9 East, 437. 
 
 Lidictment that the defendant, in 
 the reign of the present king, kept 
 a common gaming-house; plea, that 
 the defendant, in the reign of the 
 present king, was acquitted upon 
 an indictment for keeping a com- 
 mon gaming-Iiouse in the reign of 
 the late king, against the peace of 
 
 our said lord the king ; and aver- 
 ring the identity of the offences : 
 demurrer, concluding with a prayer 
 of judgment of respondeat ouster : 
 — Held, first, that the plea was bad, 
 because the indictment on which the 
 acquittal was founded charged an 
 offence committed in the reign of 
 the late king, and the defendant 
 could not by avennent shew that 
 the offence charged in both indict- 
 ments was the same ; and secondly, 
 that the judgment on demurrer was 
 final, although the demurrer con- 
 cluded with a prayer of judgment 
 of respondeat ouster. Sex v. Tay. 
 lor, 5 D. & R. 422 ; 3 ]^. & C. 502. 
 
 Trial.'] — A prisoner may plead 
 not guilty, after his special plea of 
 autrefois acquit is found against 
 him. Rex v. Welch, Car. C. L. 56. 
 
 The court will not reject a plea 
 of autrefois convict on account of 
 the informal manner in which it is 
 handed in by the prisoner, but will 
 assign counsel to put it into a for- 
 mal shape, and postpone the trial, 
 to give time for its preparation. 
 Rex V. Chamberlain, 6 C. & P. 93 — 
 Littledale. 
 
 The jury cannot be charged at 
 the same time to try the two issues 
 of autrefois acquit and not guilty. 
 Rex V. Roche, \ Leach, C. C. 134. 
 
 Four persons were tried for a 
 rape, upon an indictment containing 
 counts charging each as principal, 
 and the others as aiders and abet-' 
 tors. They were acquitted ; and it 
 being proposed on the following day 
 to try three of them for another 
 rape upon the same person (the sec- 
 ond indictment being exactly the 
 same as the first, with the omission 
 only of the fourth prisoner), they 
 pleaded autrefois acquit to the sec- 
 ond indictment, averring the iden- 
 tity of the offences. To this plea 
 there was a replication that the of- 
 fences were different :— Held, that 
 on this issue the prisoners' counsel 
 must begin. Rex v. Parry, 7 C. & 
 P. 836. 
 
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PLEAS OF AUTREFOIS CONVICT, ETC. 
 
 513 
 
 The prisoners' counsel put in the 
 commitment and the former indict- 
 ment, and also the minutes of the 
 former acquittal written on the in- 
 dictment. On this evidence the jury 
 found that the offences were the 
 same ; and it being referred for the 
 opinion of judges, whether there 
 was any evidence to justify and 
 support the verdict, and if not, 
 whether such verdict was final, and 
 operated as a bar to any further pro- 
 ceedings by the crown upon the 
 second indictment : — Held, that the 
 verdict of the jury was final, and 
 the prisoners were discharged. lb. 
 
 During the sitting under the same 
 commission, the original indictment, 
 and minutes of the verdict upon it, 
 are receivable in evidence in sup- 
 port of a plea of autrefois acquit, 
 without a record being drawn up. 
 In order to his pleading autrefois ac- 
 quit in a case of felony, the prisoner 
 has not a right to a copy of the 
 second indictment, but he has a 
 right to have the indictment read 
 slowly. Tb. 
 
 A person who is tried for felony 
 as a principal, and acquitted, can- 
 not plead that acquittal in bar of 
 another indictment, which charges 
 him with being an accessory before 
 the fact to the same felony. Rex v. 
 Plant, 7 C. & P. 575. 
 
 A verdict for a prisoner, on an 
 issue of autrefois convict, cannot be 
 set aside, and a new trial had, 
 though without evidence, and against 
 the opinion of the judge. Rex v. 
 Lea, 2 M. C. C. 9. 
 
 A prisoner was tried, on the 6th 
 of April, 1863, upon an indictment 
 charging him with having, on the 
 22nd of January, 1863, stolen 25 
 lbs of copper, the property of A., 
 and was acquitted. He was again 
 tried on the 29th of June, 1863, 
 upon an indictment which charged 
 him, in a first count, with having, 
 on the 20th of September, 1862, 
 stolen a riddle, the property of A., 
 and in the second count, with hav- 
 ing, on the 16th of January, 1863, 
 
 stolen five shovels, also the property 
 of A. The prisoner had been in 
 A.'s employ several years, and the 
 riddle and shovels were found in 
 his possession on the 21st of Jan- 
 uary, 1863, but there was no evi- 
 dence to shew when they were 
 stolen : — Held, first, that he was 
 not entitled to be acquitted upon 
 the second trial on the ground that 
 the charge of stealing the riddle and 
 shovels ought to have been included 
 in the first indictni^ent, and that on 
 these facts a verdict was rightly 
 found against him upon a plea of 
 autrefois acquit. Reg. v. Knight, Jj. 
 & C. 378 ; 9 Cox, C. C. 437 ; 9 L. 
 T., K S. 808. 
 
 Held, secondly, that he was not 
 entitled to be acquitted on the 
 ground that the stolen property was 
 not proved to have been in his pos- 
 session recently after it was stolen. 
 Ih. 
 
 Proofs — A plea of autrefois con- 
 vict can only be i3roved by the rec- 
 ord ; and the indictment, with the 
 finding of the jury, indorsed by the 
 proper officer, is not sufficient, al- 
 though it appears that no record 
 has been made up. But the court, 
 before whom the prisoner is brought 
 to be tried the second time, will 
 postpone the trial at the request of 
 the prisoner, on an affidavit of the 
 fact, to give time for an applica- 
 tion for a mandamus to compel the 
 making up of the record. Rex v. 
 Bowman, 6 C. & P. 101. 
 
 A plea of autrefois convict stated 
 that the prisoner was indicted, con- 
 victed, and sentenced, at a session 
 of the peace, duly holden by ad- 
 journment on the 5th of July ; rep- 
 lication, nul tiel record. The rec- 
 ord, produced in support of the plea, 
 stated that the indictment was found 
 at a session commenced and holden 
 on Monday, the 1st of July, and 
 that the court was adjourned until 
 Tuesday the 2nd ; that the court, 
 having re-assembled on Thursday 
 the 4:tb, was adjourned to Friday 
 
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514 
 
 PROCEDURE AND PRACTICE. 
 
 the 5th, when the prisoner was tried 
 and convicted : — Held, that the 
 plea of autrefois convict was not 
 proved by the record, inasmuch as 
 for want of an adjournment from 
 the Tuesday to the Thursday, the 
 proceedings on the Friday were cor- 
 am nonjudice, and a nullity. Rex 
 V. Bowman, 6 C. & P. 337— Gase- 
 lee, Vaughan, and Taunton. 
 
 6. Demurrers. 
 Statute.'\—Bj 14 & 15 Vict. c. 
 100, s. 25, " every objection to any 
 " indictment for any formal defect 
 " apparent on the face thereof shall 
 " be taken by demurrer or motion 
 " to quash such indictment, before 
 " the jury shall be sworn, and not 
 "afterwards; and every court be- 
 " fore which any such objection 
 " shall be taken for any formal de- 
 " feet may, if it be thought neces- 
 " sary, cause the indictment to be 
 " forthwith amended in such partic- 
 " ular by some oiEcer of the court 
 " or other person, and thereupon the 
 " trial shall proceed as if no such de- 
 " feet had appeared." 
 
 Upon a demurrer to an indict- 
 ment found in an inferior court, ob- 
 jections may be taken as well to 
 the jurisdiction of such court, as to 
 the subject-matter of the indict- 
 ment. Mex V. Fearnley, 1 T. R. 
 316. 
 
 It is no objection on demurrer, 
 that several different defendants are 
 charged, in different counts of an 
 indictment, for offences of the same 
 nature ; though it may be a ground 
 for application to the discretion of 
 the court to quash the indictment. 
 Rex V. Kingston, 8 East, 41. 
 
 On demurrer to an indictment, 
 the superior court will look into the 
 whole record. Rex v. Fearnley, 1 
 Leach, C. C. 425. 
 
 In Felonies.] — A prisoner cannot 
 of right demur and plead over to 
 an indictment for felony. Reg. v. 
 Odgers, 2 M. & Rob. 479— Cress- 
 well. 
 
 A prisoner on an indictment -for 
 murder may demur, and if the de- 
 murrer is overruled, he may plead 
 not guilty ; and, semble, that he 
 may demur and plead over to the 
 felony at the same time. Reg. v. 
 Phelps, Car. & M. 180— Coltman; 
 S. P., Reg. v. Adams, Car. & M. 
 299 — Coleridge. But see Reg. v. 
 Mitchell, 3 Cox, C. C. 31. ' 
 
 Where a prisoner, in felony, has, 
 in the absence of his counsel, plead- 
 ed to an indictment which is objec- 
 tionable on demurrer, the judge 
 will, on the application of his coun- 
 sel, allow him to demur before the 
 evidence is gone into. Reg. v. Pur- 
 chase, Car. & M. 617 — Patteson. 
 
 In embezzlement, if the prisoner 
 demurs to the indictment, and the 
 demurrer is decided against him, he 
 may still plead over to the felony, 
 and take his trial. Tb. 
 
 Where a defendant had pleaded 
 inadvertently to an indictment un- 
 der circumstances which might shew 
 it to have been a mistake on his 
 part, the court refused to allow him 
 to withdraw his plea for the pur- 
 pose of demurring, where the objec- 
 tion was one of a technical char- 
 acter, not in any way affecting the 
 merits of the case. Reg. v. Brown, 
 3 Cox, C. C. 127— Pollock and 
 Coltman ; S. P., Reg. v. Odgers, 2 
 M. & Rob. 479— Cresswell. 
 
 A mistake in the year of the 
 Queen's reign in which the offence 
 is stated to have occurred is cor- 
 rected by pleading over, and can 
 only be taken advantage of on de- 
 murrer. Reg. V. Fenwick, 4 Cox, 
 C. C. 139 ; 2 C. & K. 915— Cress- 
 well. 
 
 In Misdemeanors.'] — The court 
 has a discretion to allow a defend- 
 ant to demur and plead over to an 
 indictment for a misdemeanor. Reg. 
 V. Birmingham and Glouaester Rail, 
 way Company, 3 Q. B. 223 ; 2 G. 
 & D. 236 ; 6 Jur. 804. 
 
 An indictment for a nuisance is 
 not to be quashed, but is to be de- 
 
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RECOGNIZANCES. 
 
 515 
 
 murred to. Bex v. Suttm, 4 Burr. 
 2116. 
 
 An indictment against a town- 
 ship for non-repair of a highway, 
 alleged that the inhabitants, " the 
 common highway being in decay, 
 from the time whereof the memory 
 of man is not to the contrary ought 
 to repair, and still ought to repair 
 when and so often as it shall be- 
 come necessary." The indictment 
 contained no allegation that the de- 
 fendant had ever repaired the road. 
 The court granted leave to demur, 
 with liberty to plead over in case of 
 'judgment against them on the de- 
 murrer. Meg. V. Tryddyn, 1 B. C. 
 C. 19 ; 21 L. J., M. C. 108— Erie. 
 
 Besides the common four-day rule 
 on a defendant in misdemeanor, to 
 join in demurrer to his plea, there 
 must be a peremptory rule, giving 
 him a certain day in the discretion 
 of the court, without which judg- 
 ment cannot be signed against him. 
 Rex V. Johnson, 6 East, 583. 
 
 Judgment.'] — If a defendant de- 
 murs to an indictment, whether in 
 abatement or otherwise, the court 
 will not give judgment against him 
 to answer over, but final judgment. 
 Eex V. Gibson, 8 East, 107, 111. 
 
 If an indictment for felony is de- 
 murred to, and judgment is given 
 against the prisoner on demurrer, 
 such judgment is final, ajid sentence 
 will be passed upon it ; and it is not a 
 judgment quod respondeat ouster. 
 Reg. V. Faderman, 3 C. & K. 359 ; 
 T. & M. 286 ; 4 Cox, C. C. 359— 
 Alderson, Cresswell and Williams. 
 
 A judgment on demurrer in fel- 
 ony, on the ground that the indict- 
 ment does not sufficiently charge a 
 felony, is no bar to a subsequent 
 good indictment for the same felony. 
 Reg. V. Richmond, 1 0. & K. 240— 
 Rolfe. 
 
 7. Recognizances. 
 
 (114-12 Vict. c. 42, s. 20.) 
 To 'prosecute or appear.] — When- 
 ever a prosecutor shall have prefer- 
 
 red a bill of indictment against a 
 defendant, and shall move the court 
 for process to issue upon the indict- 
 ment against the defendant, the 
 prosecutor so applying shall, before 
 such process shall issue, himself en- 
 ter into such recognizances as the 
 court shall direct, to prosecute the 
 law with eifect against the defend- 
 ant. Reg. Gen., Central Criminal 
 Court, Jan. Sess. 1842 ; Car. & M. 
 254. 
 
 Where an indictment for felony 
 was found at the Central Criminal 
 Court against a peer of the realm 
 and several commoners, at a time 
 while the houses of parliament were 
 not sitting, the recognizances of the 
 commoners were respited from ses- 
 sion to session, until after the case of 
 the 23eer had been disposed of in the 
 House of Lords. Reg. v. Douglas, 
 Car. & M. 193. 
 
 Where the trial of prisoners had 
 been successively postponed for two 
 assizes, in consequence of the absence 
 of a material witness, and the affi- 
 davit on which application was made 
 for further postponement, stated, 
 that the witness in question was be- 
 Ueved to have gone to India as a 
 soldier, so that there was not any 
 prospect of his soon return, the judge 
 ordered the recognizances of the 
 prosecutor to be discharged, and 
 discharged the prisoners without 
 compelling them to enter into any 
 recognizances for their future ap- 
 pearance. Reg. V. Bridgman, Car. 
 & M. 271— Maule. 
 
 Whel-e a' defendant is under re- 
 cognizances to appear and take his 
 trial at a particular session of the 
 Central Criminal Court, no notice 
 of trial to the prosecutor is requisite, 
 and he is bound to be prepared to 
 try at that session. Reg. v. Parker, 
 3 Cox, C. C. 299. 
 
 Indictment for misdemeanor at 
 the quarter sessions. The defend- 
 ant pleaded guilty, and was bound 
 by recognizances to appear for judg- 
 ment at the next quarter sessions, 
 and j udgment was respited. At the 
 
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516 
 
 PROCEDURE AKD PRACTICE. 
 
 next April sessions judgment was 
 further respited until the June ses- 
 sions, when judgment was given, 
 and the defendant sentenced to be 
 fined and imprisoned. On error 
 brought : — Held, that a court of 
 quarter sessions has power to respite 
 cases from one sessions to another. 
 Keen v. Meg. (in error), 3 New 
 Sess.Cas. 25 ; ll' Jur. 1060; 10 Q. 
 
 B. 928 ; 16 L. J., M. C. 180 ; 2 Cox, 
 
 C. C. 341. 
 
 The record stated, that at the first 
 session " it was considered and ad- 
 judged that the defendant should 
 enter into recognizances to appear": 
 — Held, that these words did not 
 give the order the effect of a judg- 
 ment, so as to oust the sessions of 
 their jurisdiction to give judgment 
 at the subsequent sessions. Ih. 
 
 The 5 Geo. 2, c. 19, s. 3, requir- 
 ing the party removing a convic- 
 tion by a magistrate to enter into a 
 recognizance, with two sureties in 
 50^., conditioned to prosecute the 
 wiit with effect, was not complied 
 with by the party and his two sure- 
 ties entering into a recognizance in 
 25?. each, but it must be in the en- 
 tire sum of 50Z. Rex v. Dunn, 8 
 T. R. 217. 
 
 A sheriff has no authority to take 
 a bond for the appearance of persons 
 arrested by him, under process issu- 
 ing upon an indictment at the quar- 
 ter sessions for a misdemeanor ; he 
 can only take a recognizance for 
 their appearance. Bengough v. Ros- 
 siter, 4 T. R. 505 ; 2 H. Bl. 418, 
 426. 
 
 Enlarging. '\ — Where a prisoner 
 has made default, the recognizance 
 of the prosecutor may be enlarged 
 till the apprehension of the prisoner. 
 In re Young, 2 Cox, C. C. 280— Pat- 
 teson. 
 
 Discharging.^ —Where a prisoner 
 has been committed for trial at the 
 assizes, and parties bound over by a 
 magistrate to prosecute and give 
 evidence, the judge will not dis- 
 
 charge the recognizances on an in- 
 timation that the attorney-general 
 does not think it a proper case for 
 prosecution. Reg. v. FreaJdey,, 6 
 Cox, C. C. 75— Williams. 
 
 The court refused to discharge, 
 without preferring a bill of indict- 
 ment, the recognizances of prosecut- 
 ors, being members of a society 
 for promoting religious knowledge 
 among the poor, who had caused a 
 servant to be committed for embez- 
 zlement ; the application being 
 made not on the ground of any de- 
 fect in the evidence, but on the 
 ground that the prosecutors thought 
 that the reformation of the offender 
 would be best promoted by such a 
 course. Rex v. Paul, 6 C. & P. 
 323 — Park, Patteson, and Gurney. 
 
 But where, at the assizes, parish 
 ofiicers were vinder recognizances to 
 prosecute a pauper for obtaiuing 
 money by false pretences, the judge 
 permitted the recognizances to be 
 discharged, tlie party having been 
 in prison several weeks, and the 
 parish being unwilling to indict. 
 Rex V. Adams, 6 C. & P. 324, n. — 
 Vaughan. 
 
 Where a defendant, on being taken 
 into custody on the 8th June, under 
 a judge's warrant issued against him 
 on an indictment for a blasphemous 
 libel, entered into a recognizance to 
 appear and plead within the first 
 eight days, of the ensuing Trinity 
 term, and to try the cause at the 
 Middlesex sittings after that term, 
 and pleaded not guilty, but did not 
 give notice of trial or make, up the 
 record, either for the sittings after 
 Trinity or Michaelmas term, nor 
 was any rule obtained for respiting 
 the estreating of the recognizance ; 
 and the prosecutors gave notice of 
 trial after Trinity and Michael- 
 mas terms, but the causes were not 
 tried in either ; but made remanets 
 to the sittings after Hilary, and the 
 defendant was ready to take his 
 trial on both these occasions ; and 
 the recognizance was estreated in 
 Hilary term, without any notice 
 
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COMMISSIONS AND GAOL DELIVERY. 
 
 517 
 
 having been given to the defendant, 
 or any inotion made by the prose- 
 cutors : — Held, that the estreat was 
 regular, and conformable to the or- 
 dinary practice. Bex v. Clark, 5 B. 
 & A. 728. 
 
 Where a trial for felony is post- 
 poned, on the application of the 
 counsel for the prosecution, on the 
 ground of the absence of a material 
 witness, it is in the discretion of the 
 judge, whether, on consideration of 
 the circumstances of each particular 
 case, he will order the prisoner to 
 be detained till the next assizes, or 
 admit him to bail, or discharge him 
 on his own recognizance. Rex v. 
 Oshorn, 7 C. & P. 799— Bolland. 
 
 Falsely entering intoJ\ — By 24 & 
 25 Vict. c. 98, s. 34, " whosoever, 
 " without lawful authority or ex- 
 " cuse (the proof whereof shall he 
 " on the party accused), shall, in 
 " the name of any other person, ac- 
 " knowledge any recognizance or 
 " bail, or any cognovit actionem or 
 "judgment, or any deed or other 
 ' ' instrument, before any court, 
 "judge or other person lawfully au- 
 " thorized in that behalf, shall be 
 " guilty of felony." 
 
 8. Commissions and Gaol Delivery. 
 An offence was committed within 
 a locality which had a separate body 
 of justices exercising j-urisdiction 
 within the liberty, by virtue of three 
 separate commissions : first, the or- 
 dinary commission of the peace ; 
 secondly, a commission to try all 
 treasons, misprisions of treasons, in- 
 surrections, murders, felonies, man- 
 slaughters, &c. ; thirdly, a general 
 commission of gaol delivery. Neith- 
 er of the commissions contained any 
 non-intromittant clause ; but the 
 general county magistrates, in fact, 
 exercised no jurisdiction within the 
 liberty, which had a gaol and sep- 
 arate custos rotulorum and clerk of 
 the peace : — Held, that these com- 
 missions did not oust the jurisdiction 
 of her Majesty's justices of gaol de- 
 
 livery for the whole county; and 
 that the prisoner having been re- 
 moved from the liberty by writs of 
 habeas ad deliberandum and re- 
 cipias corpus, was properly tried by 
 such justices. Meg. v. Crane, 3 
 Cox, C. C. 53— Wilde. 
 
 The power of justices of the peace 
 of a county, or of a recorder of a 
 borough, to try prisoners at quarter 
 sessions, is not suspended or affected 
 by the fact of the judges sitting un- 
 der the usual commission of assize, 
 oyer and terminer, and general 
 gaol delivery. Smith v. Reg. (in er- 
 ror), 13 Q. B. 738 ; 18 L. J., M. C. 
 207. 
 
 An allegation upon a record that 
 three judges executed a commission 
 in relation to the trial of prisoners, 
 to try before whom that commission 
 was issued, is an affirmative allega- 
 tion of the authority to perform 
 that duty, and is not rendered uncer- 
 tain by a subsequent statement that 
 the commission was directed to them 
 and others. O'Brien v. Reg. (in 
 error), 2 H. L. Cas. 465. 
 
 Prisoners triable under special 
 commissions may be discharged by 
 gaol delivery. Rex v. Piatt, 1 
 Leach, C. 157, 170. 
 
 A prisoner in custody under a 
 defective commitment may be dis- 
 charged under a gaol delivery. lb. 
 
 It is not imperative on a comis- 
 sioner of gaol delivery to dis- 
 charge all the prisoners in the gaol 
 who were not indicted ; it being dis- 
 cretionary in him to continue on 
 their commitments such prisoners as 
 appear to him committed for trial, 
 but against whom the witnesses did 
 not appear, having been bound over 
 to the sessions. Anon., R. & R. C. 
 C. 173. 
 
 The judges' commission of gaol 
 delivery applies only to untried pris- 
 oners in the gaol, and not to untried 
 prisoners in houses -of correction. 
 Reg. V. Arlett, 2 C. & K. 596— Pat- 
 teson. 
 
 A special commission for the trial 
 of a prisoner having been read in 
 
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518 
 
 PROCEDURE AND PRACTICE. 
 
 open court at the opening of the 
 commission, immediately before the 
 delivery of the charge to the grand 
 jm-y, an application made at the ar- 
 raignment by his counsel for the 
 commission to be then read a second 
 time, upon the ground that it had 
 not been read in the presence of the 
 prisoner, was refused. Reg. v. 
 Bernard, 1 P. & F. 240. 
 
 Under a commission of oyer and 
 terminer, the general court may be 
 divided into as many courts as con- 
 venience requires ; and each sejDar- 
 ate court is to be considered as held, 
 not only before the judge actually 
 sitting, but also constructively be- 
 fore all the members of the commis- 
 sion then acting under it. Leverson 
 V. Reg. (in error), 38 L. J., M. C. 
 97 ; 4 L. R., Q. B. 394 ; 20 L. T., 
 N. S. 485. 
 
 9. Restoring Money found on Pris- 
 oners. 
 
 Restitution and Recovery of Stohn 
 Property.']— By 30 & 31 Vict. c. 35, 
 s. 9, " Where any prisoner shall be 
 " convicted, either summarily or 
 " otherwise, of larceny or other of- 
 " fence, which includes the stealing 
 " of any property and it shall ap- 
 " pear to the court by the evidence 
 " that the prisoner has sold the 
 " stolen property to any person, and 
 " that such person has had no knowl- 
 " edge that the same was stolen, 
 " and that any monies have been 
 " taken from the prisoner on his ap- 
 " prehension, it shall be lawful for 
 " the court, on the application of 
 " such purchaser, and on the restor- 
 " ation of the stolen property to the 
 " prosecutor, to order that, out of 
 " such monies a sum not exceeding 
 " the amount of the proceeds of the 
 " sale be delivered to the purchaser." 
 
 The court will direct money found 
 upon a prisoner to be restored to 
 him before trial, if it appears by the 
 depositions that it is in no way ma- 
 terial to the charge upon which he 
 is to be tried. Rex v. Barnett, 3 C. 
 «& P. 600— Park. 
 
 The judge will not grant an or- 
 der for the delivery to a prisoner of 
 money found on his j)erson : for, 
 semble, neither ajudge nor a justice 
 of the peace has power to make such 
 an order. Reg. v. Pierce, 6 Cox, 
 C. C. 117. 
 
 A constable who apprehends a 
 prisoner has no right to take away 
 from him any money which he has 
 about him, unless it is in some way 
 connected with the offence with 
 which he is charged ; as he thereby 
 deprives him of the means of mak- 
 ing his defence. Reg. v. 0''DonneU, 
 7 C. & P. 138 : S. P., Rex v. Kinsey, 
 7 C. & P. 447 ; Rex v. Jones, 6 C. 
 & P. 343 ; Rex v. Burgiss, 7 C. & 
 P. 488— Littledale. 
 
 Where a prisoner, a week after 
 the commission of the offence, was 
 apprehended on a charge of robbing 
 A. of 25^. in notes, and 9^. in gold ; 
 and on the prisoner was found the 
 sum of 12^. in gold, but none of it 
 identified: the judge ordered 5^. to 
 be restored to the prisoner, in order 
 to enable him to make his defence. 
 Rex V. Rooney, 7 C. & P. 515 — 
 Littledale. 
 
 There is no objection to a prison- 
 er who is under a charge of felony, 
 executing, before his trial, a power 
 of attorney, to obtain money from a 
 savings' bank, for the purpose of 
 paying his attorney for conducting 
 his defence, or paying any other 
 bona fide debt. Rex v. Goxon 7 
 C. & P. 651— Vaughan. 
 
 A defendant, committed to take 
 his trial at the assizes for assaulting 
 a constable, had 21. 3s. 8d. taken 
 from him by the constable who con- 
 veyed him to prison, to pay for (as 
 was alleged) the expenses of con- 
 veying him to the prison, and his 
 maintenance in prison till the tiial, 
 this being the ordinary practice in 
 the county of Stafford : — Held, that 
 the practice was quite wrong, and 
 the judge directed the money to be . 
 restored to the defendant. Reg. v 
 Bass, 2 C. & K. 822— Piatt. 
 
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AFFIDAVITS. 
 
 519 
 
 A judge has no power, either by 
 statute or at common law, to direct 
 the disposal of chattels in the posses- 
 sion of a convicted felon, not be- 
 longing to the prosecutor. Reg. v. 
 London {Corporation), El. Bl. & 
 El. 509 ; 4 Jur., N. S. 1078 ; 27 L. 
 J., M. C. 231. S. O., nom. lieg. v. 
 Pierce, Bell, C. C. 235 ; 8 Cox, C. 
 C. 344. 
 
 10. Contempt of Court. 
 
 Service of an order of a court of 
 general gaol delivery, calling on the 
 editor of a newspaper " to answer 
 for contemptuously publishing the 
 proceedings of a trial there," at the 
 office where the newspaper was pub- 
 lished, was good service within the 
 38 Geo. 3, c. 78, s. 12, and the edit- 
 or not having appeared, the fine 
 was held to be properly imposed 
 upon him in his absence, liex v. 
 Clement, 4 B. & A. 218. 
 
 Exhibiting in an assize town an 
 inflammatory publication, respect- 
 ing a crime about to be tried at the 
 assizes, is not a contempt which the 
 judge can interfere to stop, by com- 
 mitting the party exhibiting. -Rea; 
 V. Oilham, M. & M. 165— Littledale 
 and Gaselee. 
 
 11. Affidavits. 
 
 The court will direct an affidavit 
 in a case of misdemeanor, which 
 contains matter both scandalous and 
 irrelevant, to be removed from the 
 files of the court ; and the party 
 who filed it is liable to be visited as 
 for a contempt of court. Reg. v. 
 Gregory, 1 0. & K. 228— Parke 
 and Coltman. 
 
 If an affidavit contains matter 
 that is irrelevant and scandalous, 
 the court, though it cannot direct 
 its removal from the files, will give 
 the party attacked an opportunity 
 of denying the defamatory matter, 
 upon oath, by a counter affidavit. 
 lb. 
 
 XLIV. Of Juries and Chal- 
 lenges. 
 
 1. Grand, 529. 
 
 2. Jurymen, 521. 
 
 3. Challenges, 523. 
 
 4. View, 527. 
 
 5. Locking-up, 527. 
 
 6. Discharge of, 527. 
 
 7. Jury Process, 528. 
 
 6 Geo. 4, c. 50 ; 7 c6 8 Geo. 4, c. 
 28, S.2; 15 c6 16 Vict. c. 76, s. 105. 
 
 In High Treason. See Teea- 
 
 SON. 
 
 " As to the qualification' and lia- 
 " bility of burgesses to be jurors," 
 see 5 & 6 Will. 4, c. 76, ss. 121, 
 122, 123. 
 
 By 6 & 7 Vict. o. 85, s. 2, "wher- 
 " ever in any legal proceedings any 
 " legal proceedings Vhatever may 
 " be set out, it shall not be neces- 
 " sary to specify that any particu- 
 " lar persons who acted as jurors 
 " had made affirmation instead of 
 " oath, but it may be stated that 
 " they served as jurymen, in the 
 " same manner as if no act had 
 " passed for enabling persons to 
 " serve as jurymen without oath." 
 
 1. Grand. 
 
 Constitution and Duties.] — If the 
 grand jury, at the assizes or ses- 
 sions, has ignored a bill, they can- 
 not find another bill against the 
 same person for the same ofience at 
 the same assizes or sessions, and if 
 such other bill is sent before them 
 they should take no notice of it. 
 Reg. V. Humphreys, Car. & M. 
 601 — Patteson. See contra, Reg. 
 V. Neioton,'2 M. & Rob. 503— 
 Wightman. 
 
 An Irish peer ought not to serve 
 on a grand jury, unless he is a 
 member of the House of Commons, 
 he then being to all intents and 
 purposes a commoner. In re Head- 
 ley {Lord), R. & R. C. C. 117. 
 
 A person may serve on the grand 
 jury although he is not a freehold- 
 er. Anon., R. & R. C C. 177. 
 
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520 
 
 OF JURIES AND CHALLENGES. 
 
 A grand jury ought not to con- 
 sist of more than twenty-three per- 
 sons. Hex V. Harsh, 1 N. & P. 
 187 ; 6 A. & E. 236 ; 2 H. & W. 
 366 ; 1 Jur. 38. 
 
 Where more than twenty-three 
 persons are sworn upon a grand 
 jury, and a bill of indictment is 
 found by them, to which a defend- 
 ant pleads, and is tried and found 
 guilty, the court will not quash the 
 indictment. Jb. 
 
 The court will not receive an af- 
 fidavit of a grand juror as to what 
 passed in the grand jury-room, up- 
 on the subject of a bill of indict- 
 ment, lb. 
 
 The grand jury returned a bill of 
 indictment which contained ten 
 counts, for forging and uttering the 
 acceptance of* a bill of exchange, 
 with an indorsement — " a true bill 
 on both counts," and the prisoner 
 pleaded to the whole ten counts. 
 After the case for the prosecution 
 had concluded, the prisoner's coun- 
 sel pointed this out. The grand 
 jury was discharged, and the judge 
 would not allow one of the grand 
 jurors to be called as a witness to 
 explain their finding. Heg. v. 
 Cooke, 8 C. & P. 582— Patteson. 
 
 The grand jury had come into 
 court and had been discharged and 
 had left the court, but had neither 
 left the building nor separated. 
 The judges directed them to be 
 sent for back into court, and di- 
 rected another bill of indictment 
 (the witnesses on which were going 
 abroad) to be sent before them. 
 Beg. V. Holloway, 9 C. & P. 43— 
 Parke. 
 
 A grand jury has no authority 
 by law to ignore a bill for murder 
 on the ground of insanity, though 
 it appears clearly from the testi- 
 mony of the witnesses, as examined 
 by them on the part of the prose- 
 cution, that the accused was in fact 
 insane; but if they believe that 
 the acts, if they had been done by 
 a person of sound mind, would 
 have amounted to murder, it is 
 
 their duty to find the bill ; other- 
 wise the court cannot order the 
 detention of the party duiing the 
 pleasure of the crown, as it can 
 either on arraignment or trial un- 
 der the 39 & 40 Geo. 3, c. 94, ss. 1 
 & 2. Beg. v. Hodges, 8 C. & P. 
 195 — Alderson. 
 
 Semble, that no objection to 
 the caption of an indictment 
 for an allegation that the grand 
 jurors were sworn and affirmed, 
 can be sustained without shew- 
 ing that those who were sworn 
 were persons who ought to have 
 affirmed, or that those who were 
 affiiTned were persons who ought 
 to have been sworn. Midcahy v. 
 Beg. (in error), 3 L. R., H. L. Gas. 
 806. 
 
 A material witness refused to 
 give any evidence whatever to the 
 grand jury : — ^Held, that the grand 
 jury could not read the deposition 
 of such witness as evidence, to en- 
 able them to find a bill. Beg. v. 
 Bendle, 11 Cox, C. C. 209— Chan- 
 nell. 
 
 Swearing Witnesses.^ — Bj^ 19 & 
 20 Vict. c. 54, s. 2, " it shall not be 
 " necessary for any person to take 
 " an oath in open court in order to 
 " qualify himself to give evidence 
 " before a grand jury." 
 
 By s. 1 , " the foreman of a grand 
 " jury empannelled in England and 
 " Wales is empowered to examine, 
 " on oath or affirmation, all persons 
 " who shall appear before a grand 
 " jury to give evidence in support 
 " of any bill of indictment. The 
 " name of every witness examined, 
 " or intended so to be, shall be in- 
 " dorsed on the bill of indictment, 
 " and the foreman shall write his 
 " initials against the name of each 
 " witness so sworn and examined." 
 
 By s. 3, "the word ' foreman' is 
 " to include any member of the 
 " grand jury who may for the time 
 " being act on behalf of the fore- 
 " man in the examination of wit- 
 " nesses." 
 
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JURYMEN. 
 
 521 
 
 Where the grand jury has found 
 a bill, the judges before whom the 
 case comes to be tried, ought not to 
 inquire whether the witnesses were 
 properly sworn previously to their 
 going before the jury ; and it seems 
 that an improper mode of swearing 
 them will not vitiate an indictment, 
 as the grand jury is at liberty to 
 find a bill upon their own knowl- 
 edge only. Reg. v. Hussell, Car. 
 & M. 247— Wightman. 
 
 If witnesses go before the grand 
 jury without being sworn, and the 
 bill is found, and the prisoner tried 
 and convicted, it is proper to recom- 
 mend him for a free pardon. Hex 
 V. Dickinson, R. & R. C. C. 401. 
 
 A grand jury cannot, on a sus- 
 picion that the witness has been 
 tampered with by the prisoner, re- 
 ceive in evidence his written expla- 
 nation in lieu of his parol testimony, 
 for the purpose of finding a bill. 
 Denby's case, 1 Leach, C. C. 514. 
 
 2. Jurymen. 
 
 tTwrors.J-In criminal cases, twelve 
 jurors must appear on the record. 
 Eex V. St. Micfiael, 2 W. Bl. 718. 
 
 A new panel of seventy-two jur- 
 ors may be ordered by the judge 
 to be summoned during the assizes, 
 and a conviction for felony by a 
 jury selected therefrom, after chal- 
 lenging, though more than forty- 
 eight, is valid. Meg. y. Cropper, 
 2 M. C. C. 18. 
 
 Upon the trial of an indictment 
 for a misdemeanor, which continued 
 more than one day, the jury, with- 
 out the knowledge or consent of the 
 defendants, separated at night : — 
 Held, that the verdict was not 
 therefore void. Hex v. Kinnear, 
 2 B. & A. 462. 
 
 In general, the assent of all the 
 jury to the verdict pronounced by 
 the foreman in their presence and 
 hearing is to be conclusively in- 
 ferred ; and no affidavit can in any 
 case be admitted to the contrary. 
 Bex V. Wooler, 2 Stark. 111. 
 
 If during the trial of a felony it 
 Fisn. Dig.— 39. 
 
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 is discovered that the prisoner has a 
 relation on the jury, this is no 
 ground for discharging the jury. 
 Reg. V. Wardle, Car. & M. 647— 
 Erskine. 
 
 The exemption from serving as 
 jurymen, claimed by the members 
 of the Barbers' Company, under 
 the charters of 1 Edw. 4, and 5 
 Car. 1, and the 18 Geo. 2, c. 15 
 does not extend to the Central 
 Criminal Court, but is confined to 
 the local courts of the city, viz. 
 those holden before the mayor, the 
 sheriff or the coroner. White, In re. 
 Car. & M. 189. 
 
 The jury should take the law 
 from the judge ; and therefore, 
 when cases had been cited to the 
 jury in a legal argument, and he 
 had given an opinion on them, they 
 were not allowed to be read to the 
 jury in the address of the prisoner's 
 counsel to them. Reg. v. Parish, 
 8 C, & P. 94— Abinger. 
 
 In a case of felony, the judge 
 will not direct the jury to find 
 special facts, and the jury may, if 
 they think proper, find a general 
 verdict, instead of finding special 
 facts with a view to raise a ques- 
 tion of law. Reg. v. Allday^ 8 C. 
 & P. 136— Abinger. 
 
 If a jury of matrons wishes to 
 have the evidence of a surgeon be- 
 fore they give their verdict, they 
 should return into court, and the 
 surgeon should be examined as a 
 witness in open court. Reg. v. 
 Wycherley, 8 C. & P. 262— Gur- 
 ney. 
 
 Where, in a criminal prosecu- 
 tion, it is essential to prove the par- 
 ticular value of an article, the jury 
 may use that gener3,l knowledge 
 which any man can bring to the 
 subject ; but if any of the jurors 
 has a particular knowledge on the 
 subject, arising from his being in 
 the trade, he ought to be sworn 
 and examined as a witness. Rex 
 V. Rosser, 7 C. & P. 648— Vaughan. 
 
 Jurors, Swearing.'] — ^By 30 & 31 
 
522 
 
 OF JURIES AND CHALLENGES. 
 
 Vict. c. 35, s. 8, " a juror in any 
 " criminal' proceeding refusing or 
 " being unwilling, from alleged con- 
 " soientious motives, to be sworn, 
 " may be permitted, on the court 
 " being satisiied of the sincerity of 
 " tlie objection, to make a solemn 
 " affirmation or declaration." 
 
 Swearing Jurors.] — A Scotch cov- 
 enanter may be sworn in as a jury- 
 man in a court of criminal law by 
 the ceremony of holding up his 
 hand, without kissing the book. 
 Wcdker^s case, 1 Leach, C. C. 498. 
 
 Upon trial of a prisoner for mur- 
 der, the name of • Joseph Henry 
 Thorne was called from the jury 
 panel as a juror to try him, when 
 William Thorniley, who was also 
 upon the jury panel, by mistake 
 answered to the name, went into 
 the jury-box, and, not being chal- 
 lenged, was duly sworn; the trial 
 proceeded, and the prisoner was 
 convicted and sentenced. The mis- 
 take was not discovered till the fol- 
 lowing day : — Held, that this was 
 not a question of law arising at the 
 trial over which the Court of Crim- 
 inal Appeal had jurisdiction. Hegi. 
 V. Mellor, Dears. & B. C. C. 468 : 
 4 Jur., N. S. 214; 27 L. J., M. C. 
 121 ; 7 Cox, C. C. 454. 
 
 Held, also, that there had been a 
 mistrial, and that the court had 
 jurisdiction to set aside the verdict 
 and judgment ; and that the prop- 
 er course was to order a venire de 
 novo. lb. 
 
 A juror was summoned in error, 
 but not returned in the panel, and 
 in mistake was sworn to try, durino- 
 the progress of the trial these facts 
 were discovei-«d. The jury was dis- 
 charged, and a fresh jury consti- 
 tuted, by taking another juryman 
 in the place of the. one who had 
 served in error. Heff. v. Phillips, 
 11 Cox, C. C. 142— Russell Gurney. 
 
 De Medietate.]—By 6 Geo. 4, 
 50, s. 47, "nothing therein 
 "tained shall extend or be 
 
 " strued to extend to deprive any 
 " alien indicted or impeached of 
 " any felony or misdemeanor of the 
 " right of being tried by a jury de 
 " medietate lingua3 ; but on the 
 " prayer of every alien so indicted 
 " or impeached, the sheriff or other 
 " proper minister shall, by com- 
 " mand of the court, return for one 
 " half of the jur.y a competent 
 " number of aliens, if so many 
 " there be in the town or place 
 " where the trial is had, and if not, 
 " then so many aliens as shall be 
 " found in the same town or place, 
 " if any ; and no such alien juror 
 " shall be liable to be challenged 
 " for want of freehold or for any 
 " other qualification required by 
 " that act, but every such alien 
 " may be challenged for any other 
 " cause, in like manner as if he 
 " were qualified by the act." 
 
 None but aliens are entitled to 
 be tried by a jury de medietate 
 linguse. Heg. v. Manning, 1 Den. 
 C. C. 467 ; T. & M. 155'; 2 C. & 
 K 887 ; 13 Jur. 962 ; 19 L. J., M. 
 C. 1 ; 4 Cox, C. C. 31. 
 
 By 7 & 8 Vict. c. 66, s. 16, any 
 foreign woman married, or who 
 shall be married, to a natural-born 
 subject, or person naturalized, shall 
 be deemed and taken to be herself 
 naturalized, and to have all the 
 rights and privileges of a natural- 
 born -subject : — ^Held, that a wo- 
 man, who was a native of Lausan- 
 ne, in Switzerland, and was mar- 
 ried to a British subject, was not 
 entitled to a jury de medietate lin- 
 gua;, as by her marriage her civil 
 and political status was changed, 
 she having ceased to be an g,lien, 
 and having to all intents and pur- 
 poses become a British subject. lb. 
 
 Semble, that when an alien is in- 
 dicted jointly with a British sub- 
 ject, he is ousted of his privilege, 
 and caimot have a jury de medie- 
 tate linguse. Jb. 
 
 Where a jury de medietate is 
 claimed by a foreigner, on a trial 
 for murder, the crown is compelled 
 
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 c. 
 
 con- 
 con- 
 
CHALLENGES. 
 
 523 
 
 to shew cause of challenge to a 
 foreign juror after the panel has 
 been called over, notwithstanding 
 that the panel has not been ex- 
 hausted by giving formal challen- 
 ges. The challenge must 'be made 
 before the book is given into the 
 hands of the jury, and before the 
 officer has recited the oath, and it 
 is too late, though made before the 
 ju^ror kisses the book. Meg. v. Oi- 
 orgetti, 4 P. & F. 546 — Channell. 
 
 Taken ill during Trial.'] — If a 
 juryman is taken so ill as to be in- 
 capable of attending through the 
 trial, another juryman returned in 
 the panel may be added to the 
 eleven jurymen, but the prisoner 
 should be offered his challenges 
 over again as to the eleven, the 
 eleven should be sworn de novo, 
 and the trial begin 'again. Rex v. 
 Edwards, R. & R. C. C. 224; 2 
 Leach, C. C. 621, n.; 3 Camp. 207, 
 n-. ; 4 Taunt. 309. 
 
 Where a juryman is taken so ill 
 as to be unable to continue, anoth- 
 er juryman may be sworn with the 
 eleven jurymen already on the trial, 
 and the witnesses already heard be- 
 ing recalled. Reg. v. Beere, 2 M. 
 & Rob. 472— Cresswell; S.P.,Rex 
 V. Soalbert, 2 Leach, C. C. 620. 
 
 Copy of Panels.] — A prisoner in- 
 dicted for felony is not entitled to a 
 copy of the jury panel. Reg. v. 
 Bowling, 3 Cox, C. C. 509. 
 
 3. Challenges. 
 
 By 6 Geo. 4, c. 50, s. 29, " in all 
 " inquests to be taken before the 
 " court of .King's Bench, and all 
 " coiirts of oyer and terminer and 
 " gaol delivery, wherein the king is 
 " a party, howsoever it be, notwith- 
 " standing it be alleged by them 
 " that sue for the king, that the 
 " jurors of those inquests, or some 
 " of them, be not indifferent for the 
 " king, yet such inquests shall not 
 " remain imtaken for that cause ; 
 " but if they that sue for the king 
 
 " will challenge any of those jurors, 
 "they shall assign of their chal- 
 " lenge a cause certain, and the 
 " tnith of the same challenge shall 
 " be inquired of according to the 
 " custom of the court; and it shall 
 " be proceeded to the taking of the 
 " same inquisitions as it shall be 
 " found, if the challenges be true 
 " or not, after the discretion of the 
 " court, and no person arraigned for 
 " murder or felony shall be admit- 
 " ted to any peremptory challenge 
 " above the number of twenty." 
 
 By 7 & 8 Geo. 4, c. 28, s. 3, " if 
 " any person indicted for any trea- 
 " son, felony, or piracy, shall chal- 
 " lenge peremptorily a greater num- 
 " ber of the men returned to be of 
 " the jury than such person is en- 
 " titled by law so to challenge, in 
 " any of the said cases, every per- 
 " emptor y challenge beyond the 
 " number allowed by law in any of 
 " the said cases shall be entirely 
 " void, and the trial of such person 
 " shall proceed as if no such chal- 
 " lenge had been made." 
 
 The challenge of a juror, either 
 by the crown or by the prisoner, 
 must be before the oath is com- 
 menced. The moment the oath has 
 begun it is too late. The oath is 
 begun by the juror taking the book, 
 having been directed by the officer 
 of the court to do so ; but if the 
 juror takes the book without au- 
 thority, neither party wishing to 
 challenge is to be prejudiced there- 
 by. Reg. V. Frost, 9 C. & P. 136— 
 Tindal, Parke and Williams. 
 
 After issue joined between the 
 crown and the prisoner when the 
 jury is called, and before they are 
 sworn, is the only time when the 
 prisoner has the right of challenge. 
 Reg. V. Key, 3 C. & K. 371 ; T. & 
 M. 62, 63 ; 2 Den. C. C. 351 ; 15 
 Jur. 1065. 
 
 Upon a challenge for cause, the 
 person making the challenge must 
 be prepared to prove the cause. 
 Rex V. Savage, 1 M. C. C. 51. 
 
 It is no objection in arrest of 
 
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524 
 
 OF JURIES AND CHALLENGES. 
 
 judgment that the sheriff, who was 
 the prosecutor, returned the jury; it 
 ought to have been taken by way 
 of challenge. JRex v. Sheppard, 1 
 Leach, C. C. 101. 
 
 It is not a ground of challenge 
 that a juror on other trials has not 
 found a verdict for the crown. Saw- 
 don's case, 2 Lewin, C C. 117 — 
 Coleridge. 
 
 If, on the trial of a case of fel- 
 ony, the prisoner peremptorily chal- 
 lenges some of the jurors, and the 
 counsel for the prosecution also 
 challenges so many that a full jury 
 cannot be had, the proper course is 
 to call over the whole of the panel 
 in the same order as before, only 
 omitting those who have been per- 
 emptorily challenged by the prison- 
 er, and as each juror then appears, 
 for the counsel for the prosecution 
 to state their cause of challenge; 
 and if they have sufficient cause, 
 and the prisoner does not challenge, 
 for such juror to be sworn. Meg, 
 v., GeaA, 9 C. & P. 499— Parke. 
 
 It is no cause of challenge of a 
 juror by the counsel for the prose- 
 cution in case of felony, that the 
 juror is a client of the prisoner, who 
 is an attorney. Ih. 
 
 Nor that the juror has visited the 
 prisoner as a friend since he has 
 been in prison. lb. 
 
 In a case of felony, after a pris- 
 oner has challenged twenty of the 
 jurors peremptorily, he may still ex- 
 amine any other of the jurors who 
 are subse(juently called, as to their 
 qualification. Ih. 
 
 There can be no peremptoiy 
 challenges in collateral issues. Rex 
 V. Eadcliffe, 1 W. Bl. 3. 
 
 No challenge, either to the array 
 or to the polls, can be taken until a 
 full jury has appeared; therefore, 
 where the challenges are taken pre- 
 viously, they are irregularly made, 
 and out of season. Rex v. Ed- 
 monds, 4 B. & A. 471. 
 
 No jury can be challenged until 
 a full jury appears in the box. Reg. 
 V. Lacey, 3 Cox, C. C. 517. 
 
 .^Henage is a ground of challenge 
 to a juror ; but if the party has an 
 opportunity of making his chal- 
 lenge, and neglects, he cannot after- 
 wards make the objection. Rex v. 
 Sutton, 8 B. & C. 417 ; S. G. nom. 
 Rex V. Despard, 2 M. & R. 406. 
 
 A prisoner, in a case of felony, 
 having challenged twenty jurors 
 peremptorily, cannot withdraw one 
 of those challenges to challenge an- 
 other jury, instead of one that he 
 had previously challenged. Rex v. 
 Parry, 7 C. & P. 836 ; 1 Jur. 674 
 — BoUand. 
 
 On the trial of an indictment for 
 a riot, it is ground for the prosecu- 
 tor's challenging a juror, that he is 
 an inhabitant of the town where 
 the riot occurred, and that he has 
 taken an active part in the matter 
 which led to ij. Reg. v. Swain, 2 
 M. & Rob. 112 ; 2 Lewin, C. C. 116 
 — Coleridge. 
 
 The right of a prisoner to a per- 
 emptory challenge of jurors to tlie 
 number of twenty exists in all cases 
 of felony, and is not confined to 
 those which are punislfable capital- 
 ly. Gray v. Reg. (in error), 11 C. 
 & F. 427 ; 8 Jur. 879. 
 
 A challenge of the array, stating 
 that the sheriif " has not chosen the 
 panel indifierently and impartially, 
 as he ought to have done, and that 
 the panel is not an indifferent pan- 
 el," is bad, as being too general. 
 Reg. V. Hughes, 1 C. & K. 235— 
 Gurney and Cresswell. 
 
 On the trial of a misdemeanor on 
 the crown side of the assizes, it is a 
 fair mode of practice to allow the 
 defendants to object to the jurors, 
 as they are called, without shewing 
 any cause, till the panel is exhaust- 
 ed, and then to recall the jurors in 
 the same order in which they were 
 called at first, and then not to allow 
 any challenge except for cause, and 
 this is the constant practice on the 
 Welsh circuit, where challenges of 
 jurors very frequently occur. Reg. 
 V. Blakeman, 3 C. & K. 97 — Wil- 
 liams. 
 
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CHALLENGES. 
 
 525 
 
 Where a prisoner was found 
 guilty on an indictment for larceny, 
 ■which contained a count for a pre- 
 vious conviction, and after convic- 
 tion for the larceny, the court 
 thought fit to swear the jury afresh 
 to try the question of whether the 
 prisoner had been previously con- 
 victed : — Held, that he was not en- 
 titled to challenge the jury afresh. 
 Beg. V. Key, T. & M. 623 ; 2 Den. 
 C. C. 347 ; 3 C. & K. 371 ; 15 Jur. 
 1065 ; 21 L. J., M. C. 35. 
 
 The right of ordering jurors to 
 stand by, in cases of misdemeanor, 
 may be exercised by a private pros- 
 ecutor equally with the crown. Reg. 
 V. M' Gartie, 11 Ir. C. L. R. 207. 
 
 On a writ of error upon an in- 
 dictment for murder, the record 
 stated, that in forming the jury, 
 after challenges by the crown with- 
 out cause assigned, and by the pris- 
 oner, nine only of those called were 
 elected to be sworn. Twelve of the 
 jurors returned upon the panel were 
 during that time deliberating upon 
 their verdict in another case. There- 
 upon the naitie of I., who had been 
 before ordered to stand by upon a 
 challenge by the crown without 
 cause being assigned, was again 
 called, and being again challenged 
 by the crown, the counsel for the 
 prisoner prayed that the crown 
 might be put to assign cause. Be- 
 fore any judgment was given by the 
 court the twelve jurors who sat as 
 the jury in the other case came into 
 court and gave their verdict. There- 
 upon the counsel for the crown 
 prayed that L should be ordered to 
 stand by until those twelve should 
 be called. The counsel for the pris- 
 oner objected that I. should be 
 sworn, unless good cause of chal- 
 lenge was assigned by the crown. 
 The court adjudged that I. should 
 stand by, and that the names of the 
 jurors who so came into court 
 should then be called instead of the 
 name of P., who stood next after I. 
 The three required to complete the 
 panel were taken from those jurors : 
 
 — Held, that, it being conceded that 
 the 33 Edw. 1, st. 4, and 6 Geo. 4, 
 c. 50, s. 29, did not take away the 
 power of the crown to challenge 
 without assigning cause till the 
 panel had been gone through or 
 perused; the panel had not been 
 gone through or perused, so as to 
 require the crown to assign cause of 
 challenge, when the twelve jurors 
 came into court, nor until their 
 names had been called, and there- 
 upon the judge was right in order- 
 ing I. to stand by the second time. 
 Mamell v. Reg. (in error), 8 El. & 
 Bl. 54 ; Dears. & B. 0. 0. 375 ; 27 
 L. J., M. C. 4— Exch. Cham. 
 
 The record stated that P., named 
 on the panel, was called, and elect- 
 ed, and tried, to the intent that he 
 should be sworn ; without being 
 sworn, he said that he had consci- 
 entious scruples against capital pun- 
 ishments. The counsel for the 
 crown prayed that he should be or- 
 dered to stand by. The counsel for 
 the prisoner prayed that the crown 
 should assign cause of challenge. The 
 judge told him that if he felt that 
 he could not do his duty he had bet- 
 ter witl'draw ; and thereupon it was 
 ordered by the court that he should 
 stand by : — Held, that this was a 
 challenge by the crown without as- 
 signing cause, and therefore the 
 judge was right in ordering P. to 
 stand by. Ih. 
 
 Held, that the statement that the 
 court ordered jurymen to stand by 
 was unobjectionable, as it meant, 
 that, being challenged bythecrown, 
 they were to stand aside until the 
 proper time for deciding upon the 
 challenge arrived. Ih. 
 
 The names of the jurors who had 
 served in the other case, standing in 
 different parts of the panel, were 
 called over consecutively before any 
 one who had beeh already called 
 once were called again : ~ Held, 
 that this was a ]proper course ; that 
 there was no fixed rule of practice 
 as to the order in which the names 
 of the jurors on the panel should be 
 
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526 
 
 OF JURIES AND CHALLENGES. 
 
 called ; and that if the usual course 
 was departed from it was not ground 
 of eri'or. lb. 
 
 The fact that a juror is over sixty- 
 years of age is not a ground of 
 challenge. Mulcahy v. Beg. (in er- 
 ror), 3 H. L. Gas. 306; and 1 Ir.R., 
 C.L. 13. 
 
 Challenge to the array is only 
 where the sheriff has been guilty of 
 wilful default, and the summoning 
 of the jury is a duty purely minis- 
 terial. Reg. V. Burke, 10 Cox, C. 
 
 C. 519. 
 
 On Trials at Nisi Priiis.'] — Where 
 the sheriff's officer had neglected to 
 summon one of the special jurymen 
 returned on the panel : — Held, that 
 this was no ground of challenge to 
 the array for unindifferency on the 
 part of the sheriff. Hex v. Edmonds, 
 4 B. & A. 471. 
 
 On the trial at Nisi Prius of an 
 indictment for libel, on which only 
 three special jurors appeared, the 
 counsel for the prosecution prayed a 
 tales, and the defendant challenged 
 the array of the tales, on the 
 ground that the sheriff was a sub- 
 scriber to a society who were the 
 prosecutors ; and on issue taken on 
 this challenge, two triers were ap- 
 pointed by the court, who found in 
 favour of the challenge, and the 
 cause was made a remanet. Rex v. 
 Dolhj, 1 C. & K. 238— Abbott. 
 
 The court will not compel the 
 prosecutors to give a list of their 
 names to the defendant previously 
 to striking a special jury, but will 
 give such directions, by consent of 
 the prosecutors, as shall prevent 
 prejudice accruing to the defendant 
 in consequence of such list not be- 
 ing furnished. Reg. v. Mchohon, 8 
 
 D. P. C. 422 ; 4 Jur. 558. 
 
 3^a?es>»e?i.]— Where,' on an indict- 
 ment for the publication of a libel, 
 (appointed to be tried by a special 
 jury), a tales panel was quashed for 
 unindifferency in the sheriff: — Held, 
 
 that a writ of venire facias juratores 
 might be awarded to the coroner of 
 the county, although two of the 
 special jurors summoned attended 
 on a former occasion ; and upon a 
 prayer for an award of a tales de 
 circumstantibus at nisi prius, it is 
 not compulsory on the coroner or 
 sheriff to select the talesmen from 
 among the bystanders accidentally 
 in court ; but they may be chosen 
 from among persons previously ap- 
 pointed by the coroner or sheriff to 
 be in attendance, in expectation that 
 a tales would be necessary. Rex v. 
 Dolby, 3 D. & R. 311 ; 2 B. & C. 
 104. 
 
 On the trial of an information 
 for a libel, only ten special jurymen 
 aj)peared, and two talesmen were 
 accordingly sworn to fill up the 
 jury : — Held, to be no ground for a 
 new trial that two of the non-at- 
 tending special jurymen named in 
 the panel had not been summoned 
 to attend, although it appeared that 
 this fact was unknown to the de- 
 fendant until after the trial was 
 over. Rex v. Hunt, 4 B. & A. 430. 
 
 Since 7 & 8 Will. 3, c. 32, tales- 
 men can only be taken from the 
 panel of the jury summoned to try 
 the other causes, and not from the 
 bystanders. Rex v. Hill, 1 C. & P. 
 667 — Garrow. 
 
 On the trial of a quo warranto, 
 which has been made a special jury 
 cause, jurors who have been sum- 
 moned to try prisoners on the crown 
 side of the assize are not thereby 
 qualified to act as talesmen. Rex 
 V. Tipping, 1 C. & P. 668— Gurney. 
 
 The warrant for a tales on a trial 
 in a county palatine must come 
 from the king's attorney-general. 
 Rex V. Larnbe, 4 Burr. 2171. 
 
 Semble, that, in an information at 
 the suit of the attorney-general, a 
 tales may be prayed for the crown 
 without his warrant, though he is 
 not present ; but not for the defend- 
 ant. Att.- Gen. V. Parsons, 2 M. & 
 W. 23 ; 2 Gale, 227. 
 
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DISCHARGE OF. 
 
 527 
 
 4. View. 
 Where, on the trial of a rape, it 
 was wished on the part of the pris- 
 oner that the jury should see the 
 place at which the oifence was said 
 to have been committed, and the 
 place was so near to the court that 
 the jury could have a view without 
 inconvenience, the judge allowed a 
 view, although the prosecutor did 
 not consent to it. lieg. v. Whal- 
 ley, 2 C. & K. 376— Gaselee, Serjt. 
 
 The court will only under pecu- 
 liar circumstances grant a view in 
 an indictment for perjury ; but a 
 view wdll be refused if there is any 
 risk of its misleading the j ury. Anon. , 
 2 Chit. 422. 
 
 An inspection by the jury of the 
 locus in quo may be directed by the 
 court in a criminal case. Meg. v. 
 Whalley, 2 Cox, C. C. 231— Maule. 
 
 5. Locking up. 
 
 If after a jury is locked up to 
 consider their verdict in a capital 
 case one of them is ill, the judge 
 will allow a medical man to see 
 him, and anything which the med- 
 ical man in his discretion will give 
 him bona fide as medicine he may 
 have, but not sustenance. Reg. v. 
 Newton, 3 C. & K. 85 ; 13 Q. B. 
 716 ; 13 Jur. 606 ; 18 L. J., M. C. 
 201 ; 3 Cox, C. C. 489. 
 
 After a trial for murder had com- 
 menced, it was ascertained that a 
 witness had not arrived, but was 
 expected by a train. The judge 
 ordered the jury to be locked up 
 until the arrival of the witness, had 
 another jury called, and proceeded 
 with another cause. Reg. v. Fos- 
 ter, 3 C. & K. 201— Maule. 
 
 6. Discharge of. 
 After the jury has retired to con- 
 sider their verdict in a criminal case, 
 whether felony or misdemeanor, and 
 has remained in deliberation a full 
 and sufacient time without being 
 able to agi-ee upon a verdict, it is 
 in the discretion of the judge to dis- 
 
 Digitized by Microsoft® 
 
 charge them if there is no reason- 
 able prospect of their agreeing upon 
 a verdict. Winsor v. Reg. (in er- 
 ror), 6 B. & S. 143 ; 1 L. R., Q. B. 
 289 ; 12 Jur., N. S. 91 ; 35 L. J.,M. 
 C. 121 ; 14 W. R. 423 ; 14 L. T.,N'. 
 S. 195. Affirmed on appeal, 1 L. 
 R., Q. B. 390 ; 12 Jur., N. S. 561 ; 
 35 L. J., M. C. 161 ; 14 W. R. 695; 
 14 L. T., N. S. 567— Exch. Cham. 
 
 The exercise of such discretion by 
 a judge cannot be reviewed by a 
 court of error. lb. 
 
 The maxim, that a man cannot 
 be put in peril twice for the same 
 oifence, means that a man cannot 
 be tried again for an offence upon 
 which a verdict of acquittal or con- 
 viction has been given, and not that 
 a man cannot be tried again for the 
 same offence where the first trial 
 has proved abortive, and no verdict 
 was given. lb. 
 
 Where a man was indicted, plead- 
 ed not guilty, and was given in 
 charge to the jury, who retired to 
 deliberate, and had not agreed upon 
 a verdict by the time all the rest of 
 the business before the court was 
 finished, when they were discharged 
 by the judge and the prisoner re- 
 manded : — Held, that the dismissal 
 of the jury was equivalent to an ac- 
 quittal, and that he might lawfully 
 be put upon his trial the second 
 time. Recf. v. Davison, 2 F. & F. 
 250; 8 Cox, C. C. 360— Pollock, 
 Martin and Hill. 
 
 A jury may be discharged by 
 consent, after having been charged. 
 Reg. V. Dearie, 5 Cox, C. C. 501. 
 
 Where, in case of misdemeanor, 
 the jury is improperly and against 
 the will of the defendant, discharg- 
 ed by the judge from giving a ver- 
 dict after the trial has begun, this is 
 not equivalent to an acquittal, nor 
 does it entitle the defendant quod 
 eat sine die. Reg. v. Oharlesworth, 
 1 B. & S. 460 ; 9 Cox, C. C. 44 ; 8 
 Jur., N. S. 1091 ; 31 L. J., M. C. 
 25 ; 9 W. R. 842 ; 5 L. T., N. S. 
 150 ; S. 0. at Nisi Prius, 2 F. & F. 
 326. 
 
528 
 
 OF JURIES AND CHALLENGES. 
 
 In the course of the trial aud dur- 
 ing the examination of witnesses one 
 of the jurors had, without leave, 
 and without it being noticed by 
 any one, left the jury-box and also 
 the court house, whereupon the 
 court discharged the jury without 
 giving a verdict, and a fresh jury 
 was empanneled. The prisoner was 
 afterwards tried and convicted be- 
 fore a fresh jury : — Held, that the 
 course pursued was right. Reg. v. 
 Ward, 17 L. T., N. S. 220 ; 10 Cox, 
 C. C. 573 ; 16 "W. R. 281— C. C. R. 
 
 In, a case of felony, capital or 
 otherwise, the judge has a discre- 
 tionary power, in case of evident 
 necessity, to discharge the jury 
 without giving a verdict, and such 
 discharge is no bar to a fresh trial 
 of the accused on the same indict- 
 ment. Winsor v. Reg. (in error), 
 7 B. & S. 490— Exch. Cham. 
 
 The discretion of the judge in ex- 
 ercising this power cannot be re- 
 viewed by any legal tribunal. Ih. 
 
 7. Jury Process. 
 (15 4- 16 Viot. c. 76, ss. 104, 105.) 
 
 The jury process in an indictment 
 for a conspiracy made returnable on 
 one of the three days before full 
 term ; and on the same day a con- 
 tinuance by a new venire was 
 awarded, is not erroneous ; inas- 
 much as the return day was con- 
 formable to 1 Will. 4, c. 3, s. 2, 
 and the court, though not sitting 
 for the dispatch of business before 
 full term, might award the continu- 
 ances on the return days. Wright 
 V. Reg. (in error), 14 Q. B. 148 ; 
 14 Jur. 305— Exch. Cham. 
 
 Held, also, that, even if there had 
 been a discontinuance in the jury 
 process, the defendant waived the 
 objection by afterwards pleading 
 guilty to the indictment. lb. 
 
 Two defendants being indicted 
 for conspiracy, one of them cannot, 
 on a writ of error, object to a dis- 
 continuance in the process against 
 the other. Ih. 
 
 An indictment at quarter sessions 
 contained two counts : one charg- 
 ing a stealing of monies above the 
 value of bl. in a dwelling-house ; 
 the other charging simply a steal- 
 ing of monies of the same descrip- 
 tion as those contained in the first. 
 The jury process directed the jury 
 to be summoned to inquire if the 
 prisoners were guilty of the felony 
 in the indictment specified ; and the 
 verdict found them guilty of the 
 felony aforesaid. Upon that ver- 
 dict they were adjudged to be trans- 
 ported for fourteen years. The judg- 
 ment was reversed in the Queen's 
 Bench, with a direction that a- ven- 
 ire de novo should be awarded by 
 the sessions : — Held, first, that the 
 jury process had been mis^iwarded 
 in the first instance, and therefore a 
 venire de novo had been properly 
 awarded by the Queen's Bench ; 
 and that it was no objection that 
 judgment had been given upon the 
 13risoners by the sessions. Gamphell 
 V. Reg. (in error), 11 Q. B. 799 ; 12 
 Jur. 117 ; 17 L. J., M. C. 89— Exch. 
 Cham. 
 
 Held, secondly, that the direction 
 to award a venire de novo was 
 void, inasmuch as the sessions, be- 
 ing a court of oyer and terminer, is 
 not an inferior court, and is a con- 
 tinuing court of oyer and terminer. 
 
 The record in an indictment set 
 out an award of the venire to the 
 sheriif, which required him to re- 
 turn " good and lawful men of the 
 county," and stated that the sher- 
 iff returned the persons following 
 (naming them), but the return did 
 not state that the persons named 
 were " good and lawful men of the 
 county ":— Held, that the jurors 
 must be taken to have been good 
 and lawful men of the county. 
 Mansell v. Reg. (in error), 8 El. & 
 Bl. 54 ; Dears. & B. C. C. 375 ; 27 
 L.J.,M. C. 4. 
 
 The 16 & 17 Vict. c. 113 (Ir.), s. 
 109, which prescribes the summon- 
 ing of jurors to try civil as well 
 
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COUNSEL— APPEARANCE BY. 
 
 529 
 
 as criminal issues, according to the 
 precept of the judge of assize, does 
 not interfere with the common law 
 authority of justices of gaol delivery 
 to order a jury to be returned in- 
 stanter, when, from the panel hav- 
 ing been quashed, or for any other 
 reason, a sufficient jury cannot oth- 
 erwise be had. O'Neill \. Beg., 6 
 Cox, C. C. 495 ; 4 Ir. C. L. R. 221. 
 
 XLY. CouisrsEL. 
 
 1 . Appearance and Defence by, 529. 
 
 2. Addressing the Jury, 530. 
 
 3. Hight of Reply, 532. 
 
 4. Summing up Emdence, 533. 
 
 1. Appearance and Defence hy. 
 
 By 6 & 7 Will. 4, c. 114, s. 1, 
 " persons tried for felonies, after the 
 " close of the case for the prosecu- 
 " tion, may make full answer and 
 " defence thereto by counsel." 
 
 By s. 2, " in all cases of summary 
 " convictions, persons accused shall 
 " be admitted to make their full an- 
 " swer and defence, and to have all 
 " witnesses examined and cross-ex- 
 " amined by counsel." 
 
 Several defendants charged in an 
 indictment with different illegal acts 
 severed in their defence, and being 
 convicted and sentenced to different 
 punishments, brought separate writs 
 of error : — Held, that they were en- 
 titled to appear by separate counsel, 
 and that such counsel were several- 
 ly entitled to reply. 0' OonneU v. 
 Reg. (in eiTor), 11 C. & F. 155 ; 9 
 Jur. 25. 
 
 On a trial for murder, the pris- 
 oner objecting to be defended by 
 counsel, but, in the result, allowing 
 counsel to act for him, he was not 
 afterwards allowed to raise any ob- 
 jection to the proceeding, and a fiat 
 for a writ of error was refused. 
 Reg. V. Southey, 4 P. & F. 864— 
 Mellor. 
 
 Where a party bad pleaded guilty 
 at the Central Criminal Court to an 
 Fish. Dig.— 40. 
 
 indictment for libel, and affidavits 
 were filed both in mitigation and 
 aggravation, the judges refused to 
 hear counsel on either side, but 
 formed their judgment of the case 
 by reading the affidavits. Reg. v. 
 Gregory, 1 C. & K. 228. 
 
 Queen's Oounsel.'\ — On the trial' 
 of a criminal information a Queen's 
 counsel ought not to be counsel 
 for the defendant without a licence 
 from the Queen, or at least a letter 
 from the secretary of state ; and it is 
 not enough that an application for a 
 licence has been sent to the secretary 
 of state from an assize town in the 
 country, to which no answer has 
 been received at the time of the' 
 cause being tried. Reg. v. Bartlett, 
 2 C. & K. 321— Wilde, C. J. 
 
 Where a Queen's counsel was in- 
 structed to argue a criminal case 
 for a defendant, on a point reserv- 
 ed, but at the time fixed for the ar- 
 gument, had not obtained a licence 
 from her Majesty to argue against 
 the crown, but only a certificate 
 from the secretary of state's office, 
 the court directed the argument to 
 stand over for such license to be 
 obtained. Reg. v. Jones, 9 C. & P. 
 401 ; 2 M. C. C. 171. 
 
 Assignment hy the Court. 1 — The 
 court may properly request counsel 
 to give his honorary services to a 
 prisoner. AUter with an attorney. 
 But the court will recommend that, 
 in such cases, the crown should pay 
 the fees both of counsel and attor- 
 ney, as assigned. Reg. v. Fogarty, 
 5 Cox, C. C. 161. 
 
 On a trial for murder, the court 
 refused to allow counsel to appear 
 for a prisoner without his express- 
 ed assent. Reg. v. Tscuado, 6 Cox, 
 C. C. 386— Erie. 
 
 The fiction of law in criminal 
 cases is, that the judge is counsel 
 for the prisoner. It is a violation 
 of this principle, and indecent, to 
 constitute the judge counsel for the 
 prosecution, and leave him to make 
 
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530 
 
 COUNSEL. 
 
 out from the depositions a case 
 against the prisoner. Therefore, all 
 prosecutions ought to be conducted 
 by counsel, and the court will in all 
 cases direct the depositions to be 
 handed to counsel for that purpose. 
 Reg. V. Page, 2 Cox, C. C. 221— 
 Maule. 
 
 Order of Defending several Pris- 
 oners.'] — Where the counsel for sev- 
 eral prisoners cannot agree as to 
 the order in which they are to ad- 
 dress the jury, the court will call 
 upon them, not in the order of their 
 seniority, but in the order in which 
 the names of the prisoners stand in 
 the indictment. But where the 
 counsel for one prisoner has wit- 
 nesses to fact to examine, the coun- 
 sel for another cannot be allowed 
 to postpone his address to the jury 
 until those witnesses have been ex- 
 amined. Reg. V. Barber, 1 C. & 
 K. 434 — Gurney, Williams and 
 Maule. 
 
 Where two prisorlers are jointly 
 indicted, and the second in the in- 
 dictment only is defended by coun- 
 sel, the latter will be permitted to 
 address the jury before the other 
 makes his statement, notwithstand- 
 ing the rule established in Reg. v. 
 Richards, 1 Cox, C. C. 62. Reg. 
 v. HazeU, 2 Cox, C. C. 220— Wil- 
 liams. 
 
 Where one prisoner was indicted 
 for stealing and the other for receiv- 
 ing, and the receiver was defended 
 by counsel, but the principal felon 
 was undefended, the court called 
 upon the principal to make his 
 statement to the jury before the 
 counsel for the receiver was permit- 
 ted to address them. Reg. v. Mar- 
 tin, 3 Cox, C. C. 56— Coleridge. " 
 
 When several prisoners are de- 
 fended by different counsel, the or- 
 der of their defences is not to' be de- 
 termined by the seniority of their 
 counsel at the bar, but on the pre- 
 cise offence charged against each ; 
 and in a well-drawn indictment, 
 the order in which the prisoners 
 
 should be called on for their de- 
 fence usually coincides with the or- 
 der of their names in the indict- 
 ment. Reg. V. Meadows, 2 Jur., N. 
 S. 718— Erie. 
 
 Where several persons are indict- 
 ed for the same offence, the order in 
 which they should be called on to 
 make their defence is not determin- 
 ed by the order in which their 
 names stand in the indictment. 
 Reg. V. Holman, 3 Jur., K S. 722 
 —Pollock. 
 
 Where two were indicted for the 
 same offence, with a second count 
 charging one of them as accessory 
 after the fact, the one named first 
 in the indictment, though he had 
 no counsel, was heard in his de- 
 fence before the other, who was de- 
 fended by counsel. Reg. v. Thom- 
 as, 3 Jur., N. S. 272— Channell. 
 
 Where two were indicted, one 
 for larceny and the other as a re- 
 ceiver of the stolen property, the 
 latter of whom is defended by coun- 
 sel, and the former not, the counsel 
 for the receiver shoald make his de- 
 fence first. Reg. v. Pelton, 5 Jur., 
 N. S. 276— Martin. 
 
 2. Addressing the Jury. 
 
 In opening the case for the pros- 
 ecution in felony, counsel ought to 
 state declarations proposed t6 be 
 proved, as well as facts. Rex v. 
 Orrell, 1 M. & Rob. 467 ; S. P., 
 Rex V. Davis, 7 C. & P. 785 ; Rex 
 V. Bartel, 7 C. & P. 773— Parke. 
 
 Unless the declarations amount to 
 a confession, and then they should 
 not be opened. Rex v. Davis, 7 C. 
 & P. 785 ; S. P., Rex v. ITarteL 7 C. 
 & P. 773— Parke. 
 
 Where there is counsel for the pris- 
 oner, the counsel for the prosecution 
 ought always to open the case ; but 
 he should not open if the prisoner 
 has no counsel, unless there is some 
 peculiarity in the facts of the case 
 to require it. Rex v. Gascoigne, 7 
 C. & P. 772— Parke. 
 
 The counsel for the prosecution, 
 in opening a case of murder, has a 
 
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ADDRESSING THE JURY. 
 
 531 
 
 right to put hypotlietically the case 
 of an attack upon the character of 
 any particular witness for the crown, 
 and to state that, if such attack 
 should be made, he should be pre- 
 pared to rebut it; he has also a 
 right to read to the jury the gen- 
 eral observations of a judge, made 
 in a ease tried some years before, 
 on the nature and effect of circum- 
 stantial evidence, if he adopts them 
 as his own opinions, and makes 
 them part of his own address to the 
 jury. Req. v. Oourvoisier, 9 C. & 
 P. 362— Tindal and Parke. 
 
 If additional evidence is discover- 
 ed during the progress of a case, the 
 counsel for the prosecuiion is not at 
 liberty to open the nature of such 
 evidence in an additional address to 
 the jury. lb. 
 
 A prisoner's counsel, in address- 
 ing the jury, will not be allowed to 
 state anything which he is not in a 
 situation to prove, or which is not 
 already in proof; nor will he be al- 
 lowed to state the prisoner's story. 
 Reg. V. Beard, 8 C. & P. 142 ; S. 
 P., Reg. V. Butcher, 2 M. & Rob. 
 228— Coleridge. 
 
 Counsel for the prosecution open- 
 ing a case against one prisoner, state- 
 ments made by that prisoner are not 
 to be used except in a regular way 
 of evidence. Reg. v. Gardner, 9 
 Cox, C. C. 332— Pollock. 
 
 Two were indicted for manslaugh- 
 ter, the counsel for one of them 
 having addressed the jury on his be- 
 half, the counsel for the second pris- 
 oner did the same, and called wit- 
 nesses, whose evidence tended to 
 shew negligence on the part of the 
 first : — Held, that the counsel for 
 the prisoner had a right to cross-ex- 
 amine the witnesses for the second, 
 and then to address the jury again, 
 confining himself to comments on 
 the testimony the second prisoner 
 had adduced. Reg. v. Woods, 6 Cox, 
 C. C. 224. 
 
 If the prisoner's counsel has ad- 
 dressed the jury, the prisoner him- 
 
 self will not be allowed to- address 
 the jury also. Reg. v. Boucher, 8 
 C. & P. 141— Coleridge. 8. P., 
 Reg. V. Burrows, 2 M. & Rob. 124 
 — Bosanquet. 
 
 But on the trial of a case of shoot- 
 ing, with intent to do grievous bod- 
 ily harm, there having been no per- 
 son present at the time of the of- 
 fence but the prosecutor and prison- 
 er, the latter was, under these spec- 
 ial circumstances, allowed to make 
 a statement before his counsel ^d-, 
 dressed the jury. Reg. v. Malings, 
 8 C. & P. 242— Alderson. 
 
 But the privilege is not to be con- 
 sidered as a precedent with respect 
 to the general practice in such cases. 
 Reg. V. Walking, 8 C. & P. 243— 
 Gurney. 
 
 A prisoner charged with felony, 
 ,who is defended by counsel, ought 
 not to be allowed to make a state- 
 ment in addition to the defence of 
 counsel, unless under very particu- 
 lar circumstances ; and the general 
 rule ought to be, that a prisoner de- 
 fended by counsel should be entirely 
 in the hands of his counsel ; and that 
 rule should not be infringed on, ex- 
 cept <in very special cases. Reg. v. 
 Rider, 8 C. & P. 539— Patteson. 
 
 It is the duty of the counsel for 
 the prosecution to be assistant to the 
 court in the furtherance of justice, 
 and not act as counsel for any par- 
 ticular person or party. Reg. v. 
 Thursfield, 8 C. & P. 269— Gurney. 
 
 Where no counsel is engaged for 
 the prosecution, and the depositions 
 are handed in by direction of the 
 court, to a gentleman at the bar, he 
 should consider himself as counsel 
 for the crown, and act in all respects 
 as he would if he had been instruct- 
 ed by the prosecutor; and should 
 not consider himself merely as act- 
 ing in assistance of the judge, by 
 examining the witnesses. Reg. v. 
 Littleton, 9 C. & P. 671— Parke. 
 
 A prosecutor conducting his case 
 in person, and who is to be examin- 
 ed as a witness in support of the in- 
 
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532 
 
 COUNSEL. 
 
 dictment, has no right to address 
 tho jury as counsel. Eex v. JBrice, 
 2 B. & A. 606 ; 1 Chit. 352. 
 
 But on the trial of an indictment 
 for perjury, the judge will allow the 
 defendant to address the jury and 
 cross-examine the witnesses, and his 
 counsel to argue points of law, and 
 suggest questions to him for the 
 cross-examination of the witnesses. 
 Rex V. Parkins, 1 C. & P. 548 ; R. 
 & M. 166— Abbott. 
 
 Where, on an information for a 
 misdemeanor, the defendant con- 
 ducts his own defence, counsel may 
 be heard on any point of law which 
 arises. Bex v. White, 3 Camp. 98 
 — Ellenborough . 
 
 But he cannot have the assistance 
 of counsel in examining and cross- 
 examining witnesses, and reserve to 
 himself the right of addressing the 
 jury. lb. 
 
 Not more than two counsel are 
 entitled to address the court for a 
 prisoner during the trial upon a point 
 of law. JReg. v. Bernard, 1 F. & F. 
 240. 
 
 A foreigner, indicted for felony, 
 being unable to speak English, the 
 proceedings were explained tcf him 
 by an interpreter. He was defend- 
 ed by counsel, who cross-examined 
 the witnesses for the prosecution ; at 
 the close of which the judge, through 
 the interpreter, acquainted the pris- 
 oner that he might choose whether 
 he would make his defence himself 
 or allow his counsel to make it for 
 him, but that both could not be 
 heard. Beg. v. Teste, 4 Jur., N. 
 S. 244— Williams. 
 
 3. Bight of Beply. 
 
 In General Oases. ]— Where coun- 
 sel for the prosecution, intending to 
 put in evidence in reply, begins his 
 reply to the jury before doing so 
 per incuriam, he ought not, there- 
 fore, to be debarred from the right 
 to put in his evidence in the usual 
 course. Beg. v. White, 2 Cox, C. 
 C. 192. 
 
 Two being indicted for night 
 
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 poaching, the defence being on the 
 question of identity, one of them 
 calling witnesses to prove an alibi, 
 the other calling no witnesses, the 
 counsel for the prosecution was al- 
 lowed a general reply on the whole 
 case as against both. Beg. v. Briggs, 
 1 F. •& F. 106— Williams. 
 
 Where there are several prisoners, 
 and they sever in their defences, if 
 one should call witnesses and the 
 others not, the right of reply is in 
 practice confined to the case against 
 the prisoner who has called witness- 
 es. Beg. V. Burton, 2 F. & F. 788 
 — Wightman. 
 
 The counsel for the crown, where 
 the crown is the defendant in a 
 writ of error, is not necessarily en- 
 titled to the final reply, though the 
 crown is the real litigant party. 
 O' Gonnell v. Beg. (in error), 11 C. 
 & F. 155 ; 9 Jur. 25. 
 
 Three were indicted for murder, 
 and witnesses were called for the 
 defence of one only : — Held, that 
 the counsel for the prosecution was 
 entitled to reply generally, and was 
 not to be limited in his reply as 
 against the prisoner for whom the 
 witnesses were called, although the 
 evidence adduced for the one did 
 not afifeot the case as it respected 
 the other two, but if the evidence 
 against two aflfect them with difier- 
 ent ofiences, such as larceny and 
 receiving, and one calls witnesses, 
 there is no right of reply against 
 both. Beg. v. Blackburn, 3 C. & 
 K. 330 ; 6 Cox, C. C. 333— Talfourd. 
 
 The prosecuting counsel ought 
 not to reply where witnesses are 
 called to character only. Patteson's 
 case, 2 Lewin, C. C. 262 — ^Patteson. 
 
 A prosecutor's counsel has, in 
 strictness, the right of reply, though 
 the counsel for the prisoner only 
 calls witnesses to character. Rex 
 V. Stannard, 7 C. & P. 673— Patte- 
 son and Williams. 
 
 A. was charged with feloniously 
 carnally knowing and abusing a 
 girl under ten. B. was charged 
 with being present, aiding and abet- 
 
SUMMING UP EVIDENCE. 
 
 533 
 
 ting. A.'s counsel called no wit- 
 nesses ; B., who had no counsel, 
 called a witness to prove an alibi 
 for A. :— Held, that the evidence 
 was in effect evidence for A., and 
 that, in sti-ictness, the counsel for 
 the prosecution had a right to reply 
 on the whole case, but that it was 
 summum jus, and ought to be ex- 
 ercised with great forbearance. Meg. 
 Y.Jordan, 9 C. & P. 118— Wil- 
 Uams. 
 
 A statement of facts not intend- 
 ed to be proved gives a reply to the 
 counsel "for the prosecution. JReg. 
 V. Butcher, 2 M. & Rob. 228— Col- 
 eridge. 
 
 It is entirely at the discretion of 
 the prosecutor's counsel, whether he 
 will exercise his right of reply or 
 not. Eex v. Whiting, 7 C. & P. 
 771— Bolland. 
 
 By the Attorney or Solicitor- Gener- 
 cd.l — The attorney-general may re- 
 ply with new matter in collateral 
 issues, though no evidence is given 
 for the prisoner. Bex v. Badcliffe, 
 1 W. Bl. 3. 
 
 Where the attorney-general or a 
 king's counsel states that he ap- 
 pears officially to conduct a prose- 
 cution on an indictment for misde- 
 meanor, he is entitled to reply, 
 though the defendant calls no wit- 
 ness. Rex V. Marsden, M. & M. 
 439— Tenterden. 
 
 Martin, B., iatimated that he 
 thought the right of reply on behalf 
 of the crown a bad practice, and 
 that he should confine the right to 
 the attorney-general of England in 
 person. Beg. v. Christie, 1 F. & F. 
 75. 
 
 The right of reply, where no evi- 
 dence is called for the defence on 
 behalf of the crown, in Mint cases 
 was not admitted. Beg. v. Taylor, 
 1 F. &' F. 535— Byles. 
 
 In a prosecution by the post-of- 
 fice for a felony, it being stated by 
 the counsel for the prosecution that 
 he appeared as representative of the 
 attorney-general. On the ground 
 
 of his representing the !ittorney-gen- 
 eral, he was entitled to reply with- 
 out reference to the prisoner's hav- 
 ing called witnesses or not. Beg. 
 V. Gardner, 1 C. & K. 628— Pol- 
 lock. 
 
 In conducting prosecutions for 
 the post-office, where the solicitor- 
 general appears on behalf of the at- 
 torney-general, he has, on the part 
 of the crown, the right to reply on 
 the whole case, although the prison- 
 er calls no witnesses. Reg. v. Toak- 
 ley, 10 Cox, C. C. 406— Mellor ; S. 
 P., Beg. V. Barrow, 10 Cox, C. C. 
 407 — Gurney, Recorder. 
 
 The attorney-general for the coun- 
 ty palatine, though prosecuting in 
 person, has no right to reply. Beg. 
 V. Christie, 7 Cox, C. C. 506. 
 
 In a prosecution directed by the 
 poor law board, counsel for the 
 crown cannot claim the right to re- 
 ply where the prisoner calls no wit- 
 nesses. Beg. V. Bechwith, 7 Cox, 
 C. C. 505— Byles. 
 
 4. Summing up JSvidence. 
 
 By 28 & 29 Vict. c. 18, s. 2, " if 
 " any prisoner or prisoners, defend- 
 " ant or defendants, shall be defend- 
 " ed by counsel (and by s. 9, the 
 " word counsel includes attorneys 
 " where attorneys are allowed by 
 " law, or by the practice of any 
 "court, to appear as advocates), 
 " but not otherwise, it shall be the 
 " duty of the presiding judge, at 
 " the close of the case for the prose- 
 " cution, to ask the counsel for each 
 " prisoner or defendant so defended 
 " by counsel whether he or they in- 
 " tend to adduce evidence ; and in 
 " the event of none of them there- 
 " upon announcing his intention to 
 " adduce evidence, the counsel for 
 " the prosecution shall be allowed 
 " to address the jury a second time 
 " in support of his case, for the pur- 
 " pose of summing up the evidence 
 " against such prisoner or prisoners, 
 " or defendant or defendants ; 
 
 " And upon every trial for felony 
 ■' or misdemeanor, whether the pris- 
 
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534 
 
 EVroENCE. 
 
 " oners or defendants, or any of 
 " them, shall be defended by coun- 
 " sel or not, each and every such 
 " prisoner or defendant, or his or 
 " their counsel respectively, shall 
 " be allowed, if he or they shall 
 " think fit, to open his or their case 
 " or cases respectively ; 
 
 " And after the conclusion of 
 " such opening, or of all such open- 
 " ings, if more than one, such pris- 
 " oner or prisoners, or defendant or 
 " defendants, or their counsel, shall 
 " be entitled to examine such wit- 
 " nesses as he or they may think 
 " fit, and when all the evidence is 
 " concluded, to sum up the evidence 
 " respectively ; and the right of re- 
 " ply, and practice and course of 
 " proceedings, save as hereby alter- 
 " ed, shall be as at present." 
 
 The counsel for the prosecution 
 ought not, in summing up the evi- 
 dence, to make observations on the 
 prisoner's not calling witnesses, un- 
 less at all events it has appeared 
 that he might be fairly expected to 
 be in a position to do so. Neither 
 ought counsel to press it upon the 
 jury, that, if they acquit the prison- 
 er, they may be considered to convict 
 the prosecutor or prosecutrix of 
 perjury. Reg. v. Puddich, 4 F. & 
 F. 497— Crompton. 
 
 Witnesses merely called as to 
 character do not give the counsel 
 for the prosecution a reply. Reg. 
 V. Bowse, 4 F. & F. 492— Pigott. 
 
 It being a general principle of 
 criminal procedure, that counsel 
 for the prosecution should consider 
 themselves not merely as advocates 
 for a party, but as ministers of jus- 
 tice, and not as straggling for a ver- 
 dict, but as assistants in the ascer- 
 tainment of truth according to law. 
 Reg. V. Berens, 4 P. & F. 842— 
 Blackburn. 
 
 Therefore, counsel for the prose- 
 cution ought not to exercise their 
 right of summing up the evidence 
 where the prisoner calls no witness- 
 es, unless counsel really, in their 
 discretion, deem it to be necessary 
 
 for the purposes of justice. lb. : S. 
 P., Reg. V. Webb, 4 P. & F. 862— 
 Mellor. 
 
 A. & B. were indicted for man- 
 slaughter ; the counsel of A. called 
 a witness, who gave evidence which 
 brought home the crime to B., 
 whereupon his counsel was allowed 
 to examine the witness and address 
 the jury after A.'s counsel had clos- 
 ed his case and had summed up his 
 evidence ; the counsel for the prose- 
 cution being entitled to a general 
 reply. Rec/. v. Copley, 4 P. & F. 
 1097— Smith. 
 
 It being a general principle of 
 criminal procedure, that counsel for 
 the prosecution should consider 
 themselves not merely as advocates 
 for a party, but as ministers of jus- 
 tice, and not as struggling for a ver- 
 dict, but as assistants in the ascer- 
 tainment of truth according to law ; 
 therefore, counsel for the prosecu- 
 tion ought not to exercise their right 
 of summing up the evidence where 
 the prisoner calls no witnesses, un- 
 less counsel really, in their discre- 
 tion, deem it to be necessary for the 
 purposes of justiae. Reg. v Berens, 
 4 P. & F. 842— Blackburn. 
 
 Under 28 & 29 Vict. c. 18, s. 2, 
 the counsel for the prosecution 
 ought not, when the prisoner calls 
 no witnesses, to sum up the evidence. 
 Reg. V. Webb, 4 F. & F. 862— Mel- 
 lor. 
 
 XL VI. Evidence. 
 
 1. Confessions and Admissions, 535. 
 
 2. Depositions, 550. 
 
 fa^ Mode o^taking, 550. 
 (h) Returning, 555. 
 fc) Illness, Death, Insanity <yr 
 Absence of Witnesses! 55T. 
 
 (d) Examination on, 559. 
 
 (e) Copies, 561. 
 
 3. Presumptions or Frohahilites of 
 
 Guilt, 562. 
 
 4. Accomplices, 562. 
 
 5. Government Spies, 564. 
 
 6. Competency of Witnesses, 565. 
 
 7. Compelling Attendance, 568. 
 
 8. Swearing, 568. 
 
 9. Ordering to leave Court, 570. 
 
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CONFESSIONS AND ADMISSIONS. 
 
 535 
 
 10. Nameson Backof Indietm«nt,510. 
 
 11. Declarations in Articulo Mortis, 
 
 571. 
 
 12. Examining and Cross-examining 
 
 Witnesses, 571. 
 
 13. Declining to answer, 572. 
 
 14. Evidence of Character, 573. 
 
 15. Evidence of Identity, 574. 
 
 16. Privileged Communications, 574. 
 
 17. Evidence of other similar Offences, 
 
 18. Previous Conviction, 576. [576. 
 
 19. Maps or Plans, 578. 
 
 20. Letters, 578. 
 
 21. Proof of Handwriting, 579. 
 
 22. Proof of Documents by attesting 
 
 Witnesses, 579. 
 
 23. Notice to produce, 579. 
 
 24. Production and Inspection of Doe- 
 
 uments, 580. 
 
 25. On other Points, 580. 
 
 1. Confessions and A.dmissions. 
 Free and Voluntary/.'] — A prison- 
 er's confession is suflScient ground 
 for a conviction, although there is 
 no other proof of his having com- 
 mitted the offence, or of the offence 
 having heen committed, if that con- 
 fession was in consequence of a 
 charge against the prisoner. Hex v. 
 EUridge, R. & R. C. C. 440. 
 
 A confession obtained without 
 threat or promise from a boy four- 
 teen years old, by questions put by 
 a police officer in whose custody the 
 boy was on a charge of felony, and 
 when he had no food for nearly a 
 whole day, is rightly received. Rex 
 V. Thornton, 1 M. C. C. 27. 
 
 A voluntary confession of felony 
 made by a prisoner on his examina- 
 tion before a magistrate, and re- 
 duced by the magistrate into writ- 
 ing, may be given in evidence on 
 the trial, though the magistrate has 
 neglected, and the prisoner has re- 
 fused, to sign it. JRex v. Lambe, 2 
 Leach, C. C. 552. 
 
 The confession of a prisoner be- 
 fore a piagistrate is a sufficient 
 ground to warrant a conviction, al- 
 though there is no positive proof al- 
 iunde that the offence was commit- 
 ted. Bex v. White, R. & R. C. C. 
 508 ; S. P., Rex v. Tippet, R. & R. 
 C. C. 509. 
 
 Where a knowledge of any fact 
 is obtained by means of a confes- 
 
 sion which cannot be received, the 
 party should be acquitted ; unless 
 the fact would be sufficient to war- 
 rant a conviction without any con- 
 fession leading to it. Rex v. Har. 
 vey, 2 East, P. C. 658— Eldon. 
 
 If a confession is improperly ob- 
 tained, it is a ground for excluding 
 evidence of the confession, and of 
 any act done by the prisoner in con- 
 sequence towards discovering the 
 property, unless the property is act- 
 ually discovered thereby. Rex v. 
 Jenkins, R. & R. 0. C. 492. 
 
 The confession of a girl fifteen 
 years old, occasioned by many ap- 
 plications by the prosecutor's rela- 
 tions and neighbors, amounting to 
 threats and promises, is not receiv- 
 able. Rex V. Simpson, 1 M. C. C. 
 410. 
 
 So a confession obtained from a 
 servant through hopes and threats 
 held out by the wife of the master 
 and prosecutor, is inadmissible. Rex 
 V. TJpchwch, 1 M. C. C. 465. 
 
 A second confession made under 
 the same influence as the first is not 
 receivable. MeyneWs case, 2 Lew- 
 in, C. C. 122 — Taunton; S. P., 
 Sherrington's case, Ih. 123 — Patte- 
 8on. 
 
 A prisoner charged with murder, 
 being a few days short of fourteen, 
 was told by a man who was pres- 
 ent when he was taken up, but not- 
 by a constable, " Now kneel you 
 down, I am going to ask you a 
 very serious question, and I hope 
 you will tell me the truth, in the 
 presence of the Almighty" ; the 
 prisoner, in consequence, made cer- 
 tain statements : — Held, strictly ad- 
 missible. Rex y. Wild, 1 M. C. 0. 
 452. 
 
 A statement of a prisoner is ad- 
 missible, although he was previ- 
 ously told that^ whatever he said 
 " would be used against him." 
 Reg. V. Chambers, 3 Cox, C. C. 92 
 — Rolfe. 
 
 A voluntary confession which en- 
 ters into minute details of a crime, 
 and states that the prisoner was 
 
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536 
 
 EVIDENCE. 
 
 one of the party concerned in its 
 commission, is evidence to go to a 
 jury when the corpus delicti is 
 proved by evidence aliunde, al- 
 though "the witness proving such 
 corpus delicti swears that the pris- 
 oner was not of the party engaged 
 in the commission of the crime. 
 Beg. V. Sutcliffe, 4 Cox, C. C. 270. 
 
 The prosecutor and a policeman 
 went into a room in the house of 
 one of the prisoners, in which were 
 assembled the two prisoners and 
 W. The policeman then charged 
 one of the prisoners and W. with 
 stealing the prosecutor's hops, and 
 the other prisoner with feloniously 
 receiving them. W. then said, 
 " "Well, John, you had better tell 
 Mr. "Walker" (the prosecutor) "the 
 truth." Neither the prosecutor nor 
 the policeman dissented from or re- 
 marked upon this advice, but the 
 prisoner John thereupon made a 
 statement amounting to a confes- 
 sion; and subsequently, whilst be- 
 ing conveyed to prison, of his own 
 accord, made a further statement : 
 — Held, that the statements were 
 admissible. JReg. v. Parker, L. & 
 C. 42 ; 8 Cox, C. C. 465 ; 7 Jur., 
 N. S. 586 ; 30 L. J., M. C. 144; 9 
 W. R. 699 ; 4 L. T., N. S. 451. 
 
 A prisoner charged with felony, 
 being in custody, handcuifed, in the 
 house of the prosecutor, after a con- 
 versation with the prosecutor and 
 another person, in which he was 
 told that they would do all they 
 could for him, said — " If the hand- 
 cuifs are taken off, I will tell you 
 where I put the property ": — Sem- 
 ble, that this statement was receiv- 
 able, and could not be objected to, 
 either as a confession made under a 
 promise, or a statement obtained 
 by duress. Rex v. Green, 6 C. & 
 P. 655 — Bosanquet and Taunton. 
 
 A witness stated, that a prisoner 
 charged with felony asked him if 
 he had better confess ; and the wit- 
 ness replied, that he had better not 
 confess, but that the prisoner might 
 say what he had to say to him, for 
 
 it should go no further. The pris- 
 oner made a statement : — Held, 
 that it was receivable on the trial. 
 Rex V. Thomas, 7 C. & P. 345— 
 Coleridge. 
 
 The prosecutor called the prison- 
 er to his room and said, " Jarvis, I 
 think it is right I should tell you 
 that, besides being in the presence 
 of my brother and myself, you are 
 in the presence of two officers of 
 the police, and I should advise you 
 that, to any question that may be 
 put to you, you will answer truth- 
 fully, so that if you ,have commit- 
 ted a fault you may not add to it 
 by stating what is untrue." A let- 
 ter was then produced, which Jar- 
 vis said he had not written, and the 
 prosecutor then added, " Take care, 
 Jarvis ; we know more than you 
 think we know": — Held, that the 
 answer of the prisoner in the nature 
 of a confession was admissible. 
 Reg. V. Jarvis, 17 L. T., N. S. 178; 
 16 "W. R. Ill ; 1 L. R., C. C. 96 ; 
 37 L. J., M. G. 1 ; 10 Cox, C. C. 
 574. 
 
 The court will not exclude a 
 statement made in the prisoner's 
 presence by another party to a third 
 person, merely because some in- 
 ducement has been held out to that 
 party to make it ; but very little 
 weight ought to be attached to the 
 fact of no answer being given to 
 such statement by the prisoner, as 
 he would not know whether it 
 would be better for him to be 
 silent or not. Reg. v. JankowsM, 
 10 Cox, C. C. 365— Smith. 
 
 A person being in custody, and 
 having been charged with setting 
 fire to some bobbins of cotton in a 
 mill, was shewn a piece of paper 
 (partially burnt) with writing on 
 it, which had been found among 
 the burnt property. "Without re- 
 ceiving any caution whatever, he 
 was then asked by the policeman 
 whose writing it was, and what he 
 had done with the remainder of it : 
 — Held, that what he said in ans- 
 wer to the questions was receiva- 
 
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CONFESSIONS AND ADMISSIONS. 
 
 537 
 
 We, as the questions did not amount ' 
 to a tlireat. Beg. v. Regan. 17 L. 
 T., N. S. 325— Shee. 
 
 A policeman asked a prisoner, 
 who was suspected of having made 
 away with her illegitimate child, 
 to tell him where it was. She re- 
 fused to do so, upon which he said 
 that if she did not tell she might 
 get herself into trouble, and it 
 would be the worse for her. Then 
 she made a statement : — Held, that 
 the statement was inadmissible. 
 Beg. V. Coley, 10 Cox, C. C. 536 
 — Mellor. 
 
 If a prisoner is told, " You had 
 better split, and not suffer for all of 
 them " ; this is such an inducement 
 to confess as will exclude what the 
 prisoner said in consequence of it. 
 Bex V. Thomas, 6 C. & P. 353— 
 Patteson. 
 
 So, where the witness said to the 
 prisoner, " It would have been bet- 
 ter if you had told at first." Bex 
 V. Walkley, 6 C. & P. 175 — Gur- 
 ney. 
 
 Under the Influence of Admo- 
 nitions.'\ — Where a prisoner was 
 charged with stealing a guinea and 
 two promissory notes, and the prose- 
 cutor told him that it would be bet- 
 ter for him to confess : — Held, that 
 after this admonition, the prosecu- 
 tor might prove that the prisoner 
 brought him a guinea and a bl. 
 note, which he gave up to the pros- 
 ecutor as the guinea and one of the 
 notes, that had been stolen from 
 him. Bex v. Griffin, R. & R. 0. 
 C. 152. 
 
 Where, on the apprehension of a 
 prisoner for larceny, persons having 
 nothing to do with the apprehen- 
 sion, prosecution or examination of 
 the prisoner advised him to tell the 
 truth and consider his family: — 
 Held, that such admonition was no 
 ground for excluding a confession 
 made an hour afterwards to the 
 constable in prison. Bex v. Bow, 
 R. & R. C. C. 153. 
 
 A. and his wife were separately 
 in custody on a charge of receiving 
 stolen property. A person who was 
 in the room with A. said — " I hope 
 you will tell because Mrs. G. (the 
 prosecutrix) can ill afford to lose 
 the money"; and the constable 
 then said—" If you tell where the 
 property is, you shall see your 
 ■^ife " : — Held, that a statement 
 made by A. afterwards was ad- 
 missible. Bex V. J2oyd, 6 C. & P. 
 393— Patteson. 
 
 Fjsn. Dig.— 41. 
 
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 Under the Influence of Drinlc] 
 — A statement, made by a prisoner 
 when he is drunk, is receivable in 
 evidence; and semble, that if a 
 constable gave him liquor to make 
 him so, in the hope of his saying 
 something, that will not render his 
 statement inadmissible, but it will 
 be matter of observation for the 
 judge in his summing up. Bex v. 
 Spilsbury, 7 C. & P. 187. 
 
 Under the Influent of Prom- 
 ises.l — Confessions, obtained in con- 
 sequence of promises or threats, can- 
 not be given In evidence ; but evi- 
 dence of fkcts resulting from such 
 inadmissible confessions may be re- 
 ceived. Bex V. Warwickshall, 1 
 Leach, C. C. 263 ; 2 East, P. C. 
 658 ; S. P., Bex v. Mosey, 1 Leach, 
 C. C. 265, n. 
 
 A confession, induced by saying, 
 " Unless you give me a more satis- 
 factory account, I will take you be- 
 fore a magistrate," or by saying, 
 " Tell me where the things are, and 
 I will be favourable to you," can- 
 not be given in evidence. Bex v. 
 Thompsm, 1 Leach, C. C. 291 ; S. 
 P., Bex V. Cass, 1 Leach, C. C. 
 293, n. 
 
 Where the prosecutor asked the 
 prisoner, on finding him, for the 
 money which the prisoner had tak- 
 en out of the prosecutor's pack, 
 but before the money was pro- 
 duced said, " he only wanted liis 
 money, and if the prisoner gave 
 him that he might go to the devil 
 if he pleased"; upon which the 
 
538 
 
 EVIDENCE. 
 
 prisoner took 11«. 6^d. out of his 
 pocket, and said, "it was all he 
 had left of it " : — Held, that the 
 confession could not be received. 
 Hex V. Jones, R. & R. C. C. 152 ; 
 S. I'., Hex V. Clarke, Car. C. L. 
 59. 
 
 A prosecutor said to the prisoner 
 — "I should be obliged to you if 
 you would tell vis what you know 
 about it ; if you will not, we, of 
 course, can do nothing " : — Held, 
 that this was such an inducement 
 to confess, as would exclude what 
 the prisoner said. Hex v. Hart- 
 ridge, 7 C. & P. 551— Eatteson. 
 
 Where a prisoner in a gaol on a 
 charge of felony asked the turnkey 
 of the gaol to put a letter in the 
 post for him, and after his promis- 
 ing to do so the prisoner gave him 
 a letter addressed to his father, and 
 iithe turnkey, instead of putting it 
 ifinto the post, transmitted it to the 
 iprosecutor: — Held, that the letter 
 was admissible against the prison- 
 er, notwithstanding the manner in 
 which it was obtained. Hex v. Der- 
 rington, 2 C. & P. 4r8 — Garrow. 
 
 A. was in custody on a charge of 
 murder. B., a fellow prisoner, said 
 to him — " I wish you would tell me 
 haw .you murdered the boy — pray 
 sj^t." A replied — " Will you be 
 upon your oath not to mention 
 what I tell you," B. went upon 
 his oath that he would not tell. 
 A. then made a statement : — Held, 
 that this was not such an induce- 
 ment to confess as would render 
 the statement inadmissible. Hex v. 
 Shxiw, 6 C. & P. 372— Patteson. 
 
 A servant was charged with at- 
 temptmg to set fire to her master's 
 house. It was proved that the fur- 
 niture in two of the bed-rooms was 
 on tire, and a spoon and other 
 articles were found in the sucker 
 of the pump. The master told the 
 prisoner that if she did not tell the 
 truth about the things found in the 
 pump, he would send for the con- 
 stable to take her, but he said 
 nothing to her respecting the fire : 
 
 — Held, that this was such an in- 
 ducement to confess as would ren- 
 der inadmissible any statement that 
 the prisoner made respecting the 
 fire, as the whole was to be con- 
 sidered as one transaction. Heg. v. 
 Seam, Car. & M. 109 — Coltman. 
 
 Where a prisoner said to the of- 
 ficer in whose custody he was, " If 
 you will give me a glass of gin, I 
 will tell you all about it " : — Held, 
 that a confession made in conse- 
 quence of his having received some 
 gin was inadmissible. Hex v. Sex- 
 ton, 3 Russ. C. & M. 368. 
 
 A girl, accused of poisoning, was 
 told by her mistress that if she did 
 not tell all^ about it that night, a 
 constable would be sent for in the 
 morning to take her before a mag- 
 istrate ; she then made a statement, 
 which was held to be not admissi- 
 ble. Next day a constable was 
 sent for, and as he was taking her 
 to the magistrate, she said some- 
 thing to him, he having held out 
 no inducement to her to do so : — 
 Held, that this was receivable, as 
 the former inducement ceased on 
 her being put into the hands of the 
 constable. Rex v. Richards, 5 C. 
 & P. 318— Bosanquet. 
 
 A female servant being suspect- 
 ed of stealing money, her mistress, 
 on a Monday, told her that she 
 would forgive her if she told the 
 truth. On the Tuesday she was 
 taken before a magistrate, and was 
 discharged, no one appearing against 
 her. On the Wednesday the super- 
 intendent of police went with her 
 mistress to the Bridewell, and told 
 her in the presence of her mistress 
 that she " was not bound to say 
 anything unless she liked, and that 
 if she had anything to say her mis- 
 tress would hear her" ; but the 
 superintendent, not knowing that 
 her mistress had promised to for- 
 give her, did not tell her that if 
 she made a statement it might be 
 given in evidence against her. The 
 prisoner made a statement : — Held, 
 that this statement was not receiv- 
 
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CONFESSIONS AND ADMISSIONS. 
 
 539 
 
 aMe, as the promise of the mistress 
 must be considered as still operat- 
 ing on the prisoner's mind at the 
 time of the statement ; but that, if 
 the mistress had not been then 
 present, it might have been other- 
 wise. Reg. V. Hewett, Car. & M. 
 534 — ^Patteson. 
 
 Tinder the Influence of a Reward 
 or a Pardon.'] — The mere knowl- 
 edge by a prisoner of a handbill, 
 by which a government reward and 
 a promise of a pardon are offered 
 in a case of murder, are not suffi- 
 cient ground for rejecting a confes- 
 sion of such prisoner, unless it ap- 
 pears that the inducements there 
 held out were those which led the 
 prisoner to confess. Reg. v. Bos- 
 well, Car. & M. 584— Cresswell. 
 
 Where a prisoner desired that 
 any handbill that might appear 
 concerning a murder, with which 
 he stood charged, might be shewn 
 to him, and a handbill was shewn 
 to him by a constable, by which a 
 reward and a free pardon were of- 
 fered to any but the person who 
 struck the blow, and the prisoner 
 three days afterwards made a state- 
 ment, this statement was held to 
 be receivable in evidence. Ih. 
 
 But where it was afterwards 
 proved by another constable that 
 the prisoner, on the night before he 
 made the statement, said to hitn, 
 that he saw no reason why he 
 should suffer for the crime of an- 
 other, and that as the government 
 had offered a free pardon to any 
 one concerned who had not struck 
 the blow, he would tell all he knew 
 about the matter: — The judge 
 held, that the statement that had 
 already been given in evidence was 
 not properly receivable, and struck 
 it out of bis notes. lb. 
 
 Several prisoners being in cus- 
 tody on a charge of murder, A., 
 who was one of them, said to the 
 chaplain of the prison, that he 
 Avished to see a magistrate, and 
 
 asked if any proclamation had 
 been made, and any offer of par- 
 don. The chaplain said that there 
 had ; but he hoped that A. would 
 understand that he could offer him 
 no inducement to make any state- 
 ment, as it must be his own free 
 and voluntary act. When A. saw 
 the magistrate, he said that no 
 person had held out any induce- 
 ment to him to confess anything, 
 and that what he was about to say 
 was his own free and voluntary act 
 and desire. A. then made a state- 
 ment to the magistrate : — Held, 
 that this statement was receivable 
 against A. on his trial for the mur- 
 der. Reg. V. Dingley, 1 C. & K. 
 637— Pollock. 
 
 A., a prisoner charged with mur- 
 der, was visited by B., who was 
 both a magistrate and a clergy- 
 man ; B. told him, that if he was 
 not the person who struck the fatal 
 blow, and he would tell all he 
 knew, he (B.) would use his en- 
 deavours and influence to prevent 
 anything from happening to him ; 
 and that if he (A.) did not make a 
 disclosure, some one else would 
 probably do so. After this, B. 
 wrote to the secretary of state, 
 who returned an answer that mer- 
 cy could not be extended to A.; 
 which answer was communicated 
 by B. to A. After this A. sent for 
 the coroner and wished to make a 
 statement. The coroner told him 
 that if he did so it would be used 
 in evidence agailRt him. The pris- 
 oner made a confession : — Held, 
 that this confession was admissible. 
 Rex V. Glewes, 4 C. & P. 221— 
 Littledale. 
 
 Statements made by a prisoner 
 with the knowledge of a reward 
 and a pardon to any but the actual' 
 perpetrator of the offence, and un- 
 der circumstances which led to the 
 belief that such statements were 
 made with the hope of receiving 
 the reward, and being allowed to 
 give evidence as a witness on the 
 
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540 
 
 EVTOENCE. 
 
 part of the crown, are inadmissi- 
 ble. Reg. V. Blaokbwn, 6 Cox, 
 0. C. 333— Talfourd. 
 
 A printed copy of a reward of- 
 fered for such private information 
 and evidence as would lead to the 
 detection and conviction of a mur- 
 derer or the murderers, and a state- 
 ment that the secretary of state 
 would recommend the grant of a 
 pardon to any accomplice, not hav- 
 ing been the actual perpetrator of 
 the murder, who should give such 
 evidence, was hung up in the mag- 
 istrate's room in a county gaol. A 
 prisoner, who could read, made a 
 statement to the governor of the 
 gaol in this room, and before that 
 statement inquired whether he could 
 give evidence, but did not say that 
 he made the statement in that ex- 
 pectation, or in the hope of getting 
 the reward, and before making the 
 statement he was told it would be 
 used against him : — Held, that such 
 statement was inadmissible. Ih. 
 
 But statements made, and anony- 
 mous letters written by a prisoner 
 before his apprehension, are not in- 
 admissible merely on the ground of 
 the prisoner's knowledge of the of- 
 fer of the reward and pardon, or by 
 reason of his having been employed 
 by the police authorities and paid 
 money for his support, under the be- 
 lief that he was an important wit- 
 ness for the crown, lb. 
 
 Under the Influence of Threats.] 
 — The captain of a vessel said to 
 one of his sailors, suspected of hav- 
 ing stolen a -v^ratch, " That unfor- 
 tunate watch has been found, and if 
 you do not tell me who your part- 
 ner was, I will commit you to pris- 
 on as soon as we get to Newcastle ; 
 you are a damned villain, and the 
 gallows is painted in your face " : — 
 Held, that a confession made by a 
 sailor after this threat was not re- 
 ceivable on the trial for his felony. 
 Rex V. Parratt, 4 C. & P. 570— Al- 
 derson. 
 
 A daughter of the prosecutor (the 
 
 prisoner's master), but who did not 
 live with her father, and was not 
 the prisoner's mistress, whilst she 
 had temporary charge of the pris- 
 oner, who had been previously taken 
 into custody, said to her, "I am 
 very sorry for you ; you ought to 
 have known better. Tell me the 
 truth whether you did or no. Do 
 not run your soul into more sin, but 
 tell the truth " ; when the pris- 
 oner made a full confession : — Held, 
 that there was no threat or induce- 
 ment held out to the prisoner. Reg. 
 V. Sleeman, 6 Cox, C. C. 245 ; 2 C. 
 L. R. 29 ; 17 Jur. 1082 ; Dears. C. 
 C. 249 ; 23 L. J., M. C. 19. 
 
 Upon the trial of an indictment 
 for an unnatural crime with a mare, 
 one of the witnesses, in the presence 
 of T., the owner of the mare, 
 threatened to give the prisoner in 
 charge of the police if he did not 
 tell what business he had in T.'s 
 stable, where the mare was. At 
 that moment the charge had not 
 been made known to the prisoner, 
 but was immediately afterwards, 
 and then he confessed : — Held, that 
 this confession was inadmissible, 
 having been made under the influ- 
 ence of a threat held out to him in 
 the presence of one, who, being the 
 owner of the mare, was likely to 
 prosecute for the offence. Heg. v. 
 Imckhurst, 6 Cox, C. C. 243 ; 23 
 L: J., M. C. 19 ; -Dears. C. C. 245 ; 
 17 Jur. 1082 ; 2 C. L. R. 129. 
 
 A girl was charged with admin- 
 istering poison with intent to mur- 
 der. The surgeon said to her, " You 
 are under suspicion of this, and you 
 had better tell all you know." Af- 
 ter this, she made a statement to 
 the surgeon : — Held, that that state- 
 ment was not admissible. Rex v. 
 JEngston, 4 C. & P. 387— Little- 
 dale and Parke. 
 
 A constable said to a person 
 charged with felony, "It is of no 
 use for you to deny it, for there is 
 the man and boy who will swear 
 they saw you do it": — Held, that 
 this was such an inducement as 
 
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CONFESSIONS AND ADMISSIONS. 
 
 541 
 
 ■would exclude evidence of what the 
 prisoner said. Bex v. MUls, 6 C. 
 & P. 146— Gurney. 
 
 The prosecutor, in the presence of 
 the constable, said to the prisoner, 
 " It will be better for you to tell the 
 truth, as it will save the shame of a 
 search-warrant in your house." The 
 statement was rejected. The con- 
 stable then took the prisoner into a 
 loft, and, in the absence of the pros- 
 ecutor, the prisoner made a state- 
 ment. The evidence was rejected. 
 Half an hour after, the constable 
 took the prisoner to the station- 
 house, and on the way cautioned 
 him not to say anything, after 
 which he made a statement : — 
 Held, to be inadmissible, as the in- 
 ducement was still operating. Reg. 
 V. Collier, 3 Cox, C. C. 57— Wil- 
 liams. 
 
 An inducement or a threat of- 
 fered by a master to one of two ap- 
 prentices jointly accused of larceny 
 will not, though offered in the pres- 
 ence of the other, preclude the re- 
 ception in evidence of a confession 
 immediately made by the other. 
 Reg. V. Jacobs, 4 Cox, C. C. 54— 
 Erie. 
 
 Obtained by Persons in Authority.'] 
 — It is the opinion of the judges 
 that evidence of any confession is 
 receivable, unless there has been 
 some inducement- held out by some 
 person in authority. Reg. v. Tay- 
 lor, 8 C. & P. 733— Patteson. 
 
 If a person, not in office or in au- 
 thority, holds out to an accused 
 party an inducement to confess, this 
 will not exclude a confession made 
 to that person. lb. 
 
 Where the house of Mr. L. had 
 been on fire, and the prisoner, a 
 female servant there, was sent for 
 into the parlour, where Mr. W., a 
 person not in authority, in the pres- 
 ence of Mrs. L., held out an induce- 
 ment to the prisoner to confess re- 
 specting the fire, Mrs. L. expressing 
 no dissent :— Held, that a confes- 
 sion made after this was not re- 
 
 ceivable, as the inducement must 
 be taken as if it' had been held out 
 by Mrs. L., who was a person in au- 
 thority over the prisoner. lb. 
 
 The wife of a person in whose 
 house an offence is committed, such 
 person not being prosecutor, nor 
 engaged in the apprehension, prose- 
 cution or examination of the offend- 
 er, and the ofience not being in any 
 way connected with the manage- 
 ment of the house, is not a person 
 in authority within the rule which 
 excludes confessions. Reg. v. Moore, 
 2 Den. C. C. 622 ; 3 C. & K. 163 ; 
 16 Jur. 621 ; 21 L. J., M. C. 199 ; 5 
 Cox, C. C. 555. 
 
 Upon a trial for child murder the 
 prisoner's confession to a surgeon, 
 who was attending her, was ofl'ered. 
 Before the surgeon came in, her 
 mistress had told her that she had 
 better speak the truth ; and she had 
 said, in answer, that she would tell 
 it to the surgeon ; but the husband 
 of the mistress was not the prosecu- 
 tor : — Held, that as the offence 
 was not an offence against the mis- 
 tress, she was not a person in such 
 authority that the inducement which 
 she had held out would exclude the 
 confession, which was consequently 
 admissible. lb. 
 
 A daughter of the prosecutor (the 
 prisoner's master), but who did not 
 live with her father, and was not 
 the prisoner's mistress, whilst she 
 had temporary charge of the pris- 
 oner, who had been previously taken 
 into custody, said to her, "I am . 
 sorry for you; you ought to have 
 known better. Tell me the truth, 
 whether you did it or no. Do not 
 run your soul into more sin, but tell 
 the truth"; when the prisoner made 
 a full confession :— Held, that the 
 confession was not made to a person 
 in authority, and was therefore ad- 
 missible. Reg. V. Sleeman, Dears. 
 C. C.249 ; 17 Jur. 1082 ; 23 L. J., 
 M. C. 19 ; 6 Cox, C. C. 245 ; 2 C. 
 L. R. 129. 
 
 On an indictment for stealing the 
 goods of two persons in partner- 
 
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542 
 
 EVroENCE. 
 
 ship, a confession made after an in- 
 ducement to confess has been held 
 out in their absence by the wife of 
 one of them, who assisted in the 
 management of their business, is 
 inadmissible. Reg. v. Warring - 
 ham, 2 Den. C. C. 447, n. ; 15 Jur. 
 318— Parke. 
 
 A man and a woman being ap- 
 prehended on a charge of murder, 
 another woman, who had the fe- 
 male prisoner in custody, told her 
 that she " had better tell the truth, 
 or it would lie upon her, and the 
 man would go free ": — Held, that a 
 declaration of the female prisoner 
 made to, this woman afterwards was 
 not receivable. Rex v. Enoch, 5 
 C. & P. 539— Parke. 
 
 A married woman was appre- 
 hended on a charge of felony, and 
 her husband, in the presence of the 
 constable, held out an inducement 
 to her to confess. She then made 
 a statement : — Held, that it was not 
 receivable ; as an inducement held 
 out in the presence of the consta- 
 ble, was the same in effect as if it 
 had been held out by him. Reg. 
 V. Laugher, 2 C. & K. 225— Pol- 
 lock. 
 
 A constable who apprehended a 
 prisoner, asked him what he had 
 done with the tap he had stolen 
 from the prosecutor's premises, and 
 said—" You had better not add a 
 lie to the crime of theft ".-—Held, 
 that a confession made to the con- 
 stable was not receivable. Rex v. 
 ■ Shepherd, 7 C. & P. 579— Gaselee. 
 A woman in custody, on a charge 
 of murder, was, on arriving at the 
 gaol, placed in a room alone with 
 E., in order to be searched. E. 
 was employed as searcher of female 
 prisoners; but, except in that ca- 
 pacity, had no other duties or au- 
 thority in the gaol. Whilst the 
 usual search was being made, the 
 prisoner said, " I shall be hung ; I 
 shall be sure to be hung" ; and, 
 shortly afterwards, " If I tell the 
 truth, shall I be hung?" E. 
 order to soothe the 
 
 m 
 prisoner, re- 
 
 plied, " TSo, nonsense, you will not 
 be hung ; who told you so ? " — 
 Held, that a statement of the pris- 
 oner made to E. immediately after- 
 wards was not receivable. Reg. v. 
 Windsor, 4 F. & F. 360— Channell. 
 
 By Persons withovt Authority.] 
 — There is a difference of opinion 
 among the ^'udges, whether a con- 
 fession made to a person who has 
 no authority, after an inducement 
 held out by that person, is receiva- 
 ble. Rex V. Spencer, 7 C. & P. 776 
 — Parke. 
 
 The confession of a prisoner is 
 evidence, although previously to it 
 an inducement to confess had been 
 held out by another person, if that 
 person had no authority to do so. 
 Rex V. Gibbons, 1 C. & P. 97 — 
 Park. 
 
 So a confession by a prisoner to a 
 constable, who had held out no in- 
 ducement, is evidence, although an 
 inducement had been previously 
 held out by a person in no oifice or 
 authority. Rex v. Tyler, 1 C. & P. 
 129— Hullock. 
 
 Any person's telling a prisoner 
 that it will be better for him to 
 confess, will exclude a confession 
 made to that person, although that 
 person was not in any authority, as 
 prosecutor, constable, or the like. 
 Rex V. Dunn, 4 C. & P. 543 ; S. 
 P., Rex Y. Slaughter, 4 C. & P. 544. 
 
 To Chaplains.] — Where a pris- 
 oner committed on a charge of mur- 
 der sent for the chaplain to pray 
 with him, who told him that, as the 
 ininister of God, he ought to warn 
 him not to add sin to sin by at- 
 tempting to dissemble with God, 
 and that it would be important for 
 him to confess his sins before God, 
 and to repair as far as he could any 
 injury he had done. The chaplain 
 had two interviews with the pris- 
 oner, and considered he had made 
 a great impression on him, but dis- 
 tinctly told him he did not wish 
 him to confess. After this the pris- 
 
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CONPESSIONS AND ADMISSIONS. 
 
 543 
 
 oner made two confessions to the 
 gaoler and the mayor, after having 
 been warned of the consequences 
 by both those persons : — Held, that 
 these confessions were good evi- 
 dence, and rightly received. JHex 
 V. Gilham, Car. C. L. 51 ; 1 M. C. 
 C. 186. 
 
 A chaplain to a workhouse had, 
 in his spiritual capacity, frequent 
 conversations there with the pris- 
 oner, who was charged with the 
 murder of her child, but who was 
 too ill to be removed from the work- 
 house. Semble, that these conver- 
 sations ought not to be adduced in 
 evidence at the trial. Hec/. v. Grif- 
 jtn, 6 Cox, C. C. 219— Alderson. 
 
 On Interrogations by the Police^ 
 — The practice of questioning pris- 
 oners by policemen, and thus ex- 
 tracting confessions from them, 
 though it does not render the evi- 
 dence so obtained inadmissible, is 
 one which is strongly reprehensible, 
 and which ought not to be permit- 
 ted. Reg. V. Mick, 3 F. & F. 822 
 — Mellor. 
 
 An answer by a prisoner after his 
 arrest, to a question asked by a po- 
 liceman, is inadmissible. Meg. v. 
 Bodkin, 9 Cox, C. C. 403. 
 
 A policeman ought not, in gen- 
 eral, to question prisoners who are 
 in his custody ; but if he does, the 
 interrogation ought not to be con- 
 fined to questions calculated to com- 
 promise the party. Reg. v. Stokes, 
 17 Jur. 192— Alderson. 
 
 J., suspected of having committed 
 felony, was followed and stopped by 
 a constable in plain clothes. The 
 constable having told J. what he 
 was, and that she (J.) was charged 
 with felony, proceeded to put sev- 
 eral questions to her relative to a 
 parcel in her hand, which contained 
 the goods supposed to have been 
 stolen. At the time he asked the 
 questions the constable had not told 
 J. that she was under arrest, but he 
 would not let her go. He did not 
 expressly hold out any threat or in- 
 
 ducement to J., nor did he, before 
 she answered him, give her any cau- 
 tion. J. having answered the ques- 
 tions, the constable then told her she 
 was not bound to say anything that 
 would criminate herself, and said he 
 should bring her to the police office: 
 — Held, that the conversation be- 
 tween J. and the constable was re- 
 ceivable in evidence., JReg. v. John- 
 ston, 15 Ir. C. L. R. 60— C. C. R. 
 
 A policeman asked the prisoner, a 
 boy between eight and nine years 
 old, various questions as to his go- 
 ing to .school, knowing the Lord's 
 Prayer, where he would go to if he 
 told a lie, whether God knew every- 
 thing ; and then asked, whether he 
 thought God knew who set fire to 
 the hay-stack. The boy not an- 
 swering, and beginning to cry, the 
 policeman asked him if he could 
 give any information about the fire, 
 and receiving no answer, he said he 
 should apprehend him upon charge 
 of setting fire to the hay-stack. The 
 boy then made a statement : — Held, 
 that it was not admissible. Beg. v. 
 Day, 2 Cox, C. C. 209— Cresswell 
 and "Williams. 
 
 Admissions by a prisoner, elicited 
 by questions of a police oflicer, with 
 an admonition to tell all she knew, 
 are inadmissible. But a subsequent 
 statement by the prisoner to another 
 officer is not necessarily so far under 
 the same influence as to exclude it. 
 Reg. V. Gheverton, 2 P. & F. 833— 
 Erie. 
 
 A. was indicted for stealing a 
 shilling which had been previously 
 marked and put into a till. A con- 
 stable found the shilling in his pos- 
 session, and asked him if he had 
 any more money about him. The 
 prisoner produced some half-crowns, 
 and then made a statement : — Held, 
 that this' statement was not receiv- 
 able, on the ground that it related 
 to another and distinct felony. Reg. 
 V. Butler, 2 C. & K. 221— Piatt. 
 
 Previous Warning by Police.] — 
 Though there may be cases in which 
 
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544 
 
 EVIDENCE. 
 
 it will be proper, yet, as a general 
 rule, it is better that a policeman 
 should not question a prisoner in his 
 custody, without cautioning him 
 that his answers will be evidence 
 against him. Beg. v. Kerr, 8 C. & 
 P. 177— Park. 
 
 Where a police constable, who 
 apprehended the prisoner, having 
 told him the nature of the charge, 
 said " he need not say anything to 
 criminate himself; what he did say 
 would be taken down and used 
 as evidence against him " ; and the 
 prisoner thereupon made a confes- 
 sion : — Held, receivable. Reg. v. 
 Baldry, 2 Den. C. C. 430 ; 16 Jur. 
 599 ; 21 L. J., M. C. 130 ; 19 L. T. 
 146. 
 
 A constable ought not to caution 
 a prisoner not to say anything. A 
 constable is not to lead a prisoner to 
 to say anything ; but if a prisoner 
 chooses to say something, it is the 
 duty of the constable to hear what 
 it is he has to say. Reg. v. Priest, 
 2 Cox, C. C. 378— Patteson. 
 
 A statement made by one of two 
 prisoners to the other after an in- 
 ducement suggested by that other 
 in the presence of the constable in 
 whose custody they are, and uncon- 
 tradicted by the constable, is inad- 
 missible. Reg V. Millen, 3 Cox, C. 
 C. 507. 
 
 In Private Conversations.] — What 
 a prisoner is overheard to say to his 
 wife, or even what he is overheard 
 to say to himself, is receivable 
 against him on a charge of felony ; 
 it is, however, a species of evidence 
 to be acted on with caution, as it is 
 very liable to be unintentionally 
 misrepresented by the witnesses. 
 Rex V. Simons, 6 C. & P. 540— Al- 
 derson. 
 
 A conversation between the pris- 
 oner and his mother, in which she 
 made a statement to his prejudice, 
 which he denied, is not admissible 
 against him. Reg. v. Welsh, 3 F. & 
 F. 275— Martin. 
 
 But a conversation between two 
 
 persons in relation to the charge un- 
 der investigation made in the presence 
 of the prosecutrix, but in the ab- 
 sence of the prisoner, was admitted. 
 Reg. V. Amall, 8 Cox, C. C. 439— 
 Maule. 
 
 If a witness gives evidence of a 
 conversation with a prisoner, in 
 which that prisoner says something 
 implicating another prisoner, the 
 witness, in giving his evidence, must 
 not omit the name of such other 
 prisoner, and say "another person," 
 but must give the conversation ex- 
 actly as it occurred, and the judge 
 will tell the jm-y that is not evi- 
 dence against such other prisoner. 
 Rex V. Searne, 4 C. & P. 215— 
 Littledale ; S. P., Reg. v. WalMy, 6 
 C. & P. 175— Gurney. 
 
 By Wife, in 'presence and hearing 
 of Prisoner.] — What the wife of a 
 person charged with felony says in 
 his presence and hearing is admis- 
 sible on the trial. Rex v. Rartlett, 
 7 C. & P. 832— Bolland. 
 
 On Examination before Magis- 
 trates.] — An examination of a pris- 
 oner charged with a felony taken 
 without threat or promise, by ques- 
 tions put by the magistrate, is not- 
 withstanding admissible. Rex v. 
 EUis, R. & M. 432— Littledale ; .S'. 
 P., Rex V. Barilett, 7 C. & P. 832— 
 Bolland. 
 
 Where A. and B. were charged 
 with the joint commission of a fel- 
 ony, and A., on his examination be- 
 fore a magistrate, stated, in the 
 hearing ofB., that he and B. jointly 
 committed such felony, which B. 
 did not deny: — Held, that these 
 circumstances were not admissible 
 as evidence against B. Rex v. Ap- 
 plehy, 3 Stark. 33— Holroyd. 
 
 Previous Oaution or Warning hy 
 Magistrates.]— The 11 & 12 Vict. c. 
 42, s. 18, which requires a caution 
 to be given by the magistrate to the 
 prisoner applies only to the conclud- 
 ing proceedings of the examination ; 
 
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CONFESSIONS AND ADMISSIONS. 
 
 545 
 
 and, therefore, a voluntaiy state- 
 ment made by a prisoner in the 
 course of an examination before a 
 magistrate, and before all the wit- 
 nesses have been examined, is ad- 
 missible at the trial, although no 
 caution has been given by the mag- 
 istrate. Reg. V. Stripps, Dears. C. 
 C. 648 ; 2 Jur., N. S. 452; 23 L. J., 
 M. C. 109. 
 
 When a prisoner is willing to 
 make a statement, it is the duty of 
 magistrates to receive it ; but ma- 
 gistrates, before tMfey do so, ought 
 entirely to get rid of any impression 
 that may have before been on the 
 prisoner's mind, that the statem^nt 
 may be used for his own benefit; 
 and the prisoner ought also to be 
 told, that what he thinks fit to say 
 will be taken down, and may be 
 used against him on the trial. Heff. 
 V. Arnold, 8 C. & P. 621— Den- 
 man. 
 
 The committing magistrate told 
 a prisoner that he would do all that 
 he could for him if he would make 
 a disclosure ; after this, the prisoner 
 made a statement to the turnkey of 
 the prison, who held out no induce- 
 ment to the prisoner to confess : — 
 Held, that what the prisoner said to 
 the turnkey could not be received, 
 more especially as the turnkey had 
 not given the prisoner any caution. 
 Hex V. Cooper, 5 C. & P. 535— 
 Parke. 
 
 A prisoner ought to be told by 
 the magistrate that if he makes any 
 statement it may be used as evi- 
 dence against him, and that he must 
 not expect any favour if he confess- 
 es ; but the magistrate ought not to 
 dissuade him from confessing. Jiex 
 V. Green, 5 C. & P. 312— Gumey. 
 
 A prisoner was before a magis- 
 trate on a charge of felony, and, af- 
 ter the examination of the witnesses 
 against him, the magistrate said to 
 him, " Be sure you say nothing but 
 the truth, or it will be taken against 
 you, and may be given in evidence 
 against you at your trial " : — Held, 
 that this did not exclude the prison- 
 
 er's statement from being given in 
 evidence. Heg. v. Holmes, 1 C. & 
 K. 248— Eolfe. 
 
 On a prisoner being brought be- 
 fore a magistrate on a charge of 
 forgery, the prosecutor said, in the 
 hearing of the prisoner, that he con- 
 sidered the prisoner as a tool of G. ; 
 and the magistrate then told the 
 prisoner to be sure to tell the truth; 
 upon this the prisoner made a state- 
 ment: — Held, that the statement 
 was receivable. Rex v. Court, 7 
 C. & P. 486— Littledale. 
 
 Where a person, who made a con- 
 fession to a constable in consequence 
 of a promise held out, was taken 
 before a magistrate, who, knowing 
 what had taken place, cautioned 
 the prisoner against making any 
 confession before him, but the pris- 
 oner, notwithstanding, did make a 
 confession to the magistrate : — Held, 
 that this second confession was re- 
 ceivable on the trial of the prisoner, 
 though it did not appear that the 
 magistrate told the prisoner that his 
 first confession would have no effect, 
 and he therefore might have acted 
 under an impression that, having 
 once acknowledged his guilt, it was 
 too late to retract. Rex v. Howes, 
 6 C. & P. 404— Denman. 
 
 Where Prisoner is 8worn.'\ — 
 Several persons, one of whom was 
 the prisoner, were summoned before 
 the committing magistrate touching 
 the poisoning of A. No person was 
 then specifically charged with the 
 offence. The prisoner was sworn, 
 and made a statement : — Held, that 
 this statement was not receivable. 
 Rex V. Lewis, 6 C. & P. 161— Gur- 
 ney. 
 
 When before the committing ma- 
 gistrate one of the prisoners was ex- 
 examined as a witness against the 
 other : — Held, that what that prison- 
 er said before the magistrate could 
 not be given in evidence on the 
 trial. Rex v. Davis, 6 C. &. P. 177 
 — Gumey. 
 
 A statement relating to an of- 
 
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546 
 
 EVIDENCE. 
 
 fence, made upon oath by a person 
 not. at the time under suspicion, is 
 admissible against him, if he is af- 
 terwards charged with the commis- 
 sion of it. J&x V. Tubby, 5 C. & 
 P. 530— "Vaughan. 
 
 Mode of Tahinff.] — A prisoner be- 
 fore the committing magistrate made 
 a statement, which by mistake was 
 written in the information book, 
 and headed " The information and 
 complaint of R. B." : — Held, that 
 it was not receivable, although the 
 mistake could not have been ex- 
 plained by the magistrate's clerk. 
 Bex V. Bentley, 6 C. &. P. 148— 
 Gurney. 
 
 After the, examination of a pris- 
 oner before a magistrate on a charge 
 of felony had been taken down and 
 read over to him, and he was 
 told that he might sign it or not, 
 but he declined to do so : — Held, 
 that it could not be read in evidence 
 against him. Bex v. Telicote, 2 
 Stark. 483— Wood. 
 
 A prisoner, when before the com- 
 mitting magistrate, was sworn by 
 mistake, he being supposed to be a 
 witness ; as soon as the mistake was 
 discovered, the deposition which 
 was begun was destroyed, and the 
 prisoner cautioned. After this he 
 made a statement : — Held, that such 
 statement was receivable. Bex v. 
 Webb, 4 C. & P. 564— Garrow. 
 
 Mode of Proving. \ — Where, on 
 the examination before the magis- 
 trate of persons charged with felony, 
 the magistrate's clerk, in taking 
 down the prisoner's statements, had 
 left a blank where either of the pris- 
 oners had mentioned the name of 
 another of the prisoners, the judge 
 at the trial would not allow these 
 blanks to be supplied by j)arol evi- 
 dence. Beg. V. Morse, 8 0. & P. 
 605 — Patteson. 
 
 If a prisoner, during the examin- 
 ation of witnesses against him be- 
 fore the magistrate, makes an ob- 
 servation, parol evidence may be 
 given of such observations if the ma- 
 
 gistrate's clerk proves that he only 
 took down the evidence of the 
 witnesses and the statement of the 
 prisoner, after the evidence against 
 him was concluded. Bex v. SpUs- 
 bury, 7 C. & P. 187. 
 
 Where the examination of a pris- 
 oner by a coroner was inadmissible 
 on account of an irregularity in the 
 mode of taking it, the coroner was 
 allowed to give parol evidence of 
 what the prisoner said on the occa- 
 sion of his examination. Bex v. 
 Beed, M. & M. 403— Tindal. 
 
 Parol evidence may be given to 
 add to the written examination of a 
 prisoner taken by a magistrate. 
 Bex V. Harris, 1 M. C. C. 338. 
 
 On the tiial of a prisoner who 
 has made before a magistrate a 
 voluntary confession of his guilt, 
 previously to the conclusion of the 
 evidence against him, which confes- 
 sion is taken down in writing, and 
 signed by the prisoner, and attested 
 by the magistrate's clerk, the prop- 
 er course is for the clerk to give 
 evidence ot the prisoner's statements, 
 refreshing his memory by the writ- 
 ten paper. Bex v. BeU, 5 C. & P. 
 162 — Tenterden and Gaselee. 
 
 A prisoner charged with felony 
 made a statement before the com- 
 mitting magistrate, which was tak- 
 en down in writing, but not signed 
 by the prisoner : — Held, that the 
 magistrate's clerk might give evi- 
 dence of what the prisoner said, 
 using that which was taken down 
 to refresh his memory. Bex v. 
 Pressly, 6 G. & P. 183— Patteson. 
 
 A prisoner charged with felony 
 made a statement before the com- 
 mitting magistrate, which was tak- 
 en down and signed by the prisoner, 
 but there was nothing on the face 
 of the paper to shew that at the 
 time the prisoner made the state- 
 ment he was under examination on 
 a charge of felony: — Held, that this 
 examination could not be used as 
 such but that the clerk to the ma- 
 gistrate might state what the pris- 
 oner said, using the paper to refresh 
 
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CONFESSIONS AND ADMISSIONS. 
 
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 his memory. Rex v. .Tarrant, 6 C. 
 & P. 182— Patteson. 
 
 A magistrate may give evidence 
 of what a prisoner said at examina- 
 tions before him, although much of 
 what he said was in answer to ques- 
 tions put by the magistrate, no 
 threat or promise being used, and 
 the prisoner had refused to sign the 
 magistrate's notes of the examina- 
 tion, on the ground that they were 
 an incorrect ac<iount of the transac- 
 tion. Rex V. Jmies, Car. C. L. 13 
 — Bayley, Gaselee and Vaughan. 
 
 And the magistrate may refresh 
 his memory from the notes. lb. 
 
 Minutes taken by the solicitor for 
 a prosecution, on the examination of 
 a prisoner before a magistrate, and 
 by his direction may be read in evi- 
 dence at the trial, though not sign- 
 ed either by the prisoner or the ma- 
 gistrate. Rex V. Thomas, 2 Leach, 
 C. C. 637 ; -S". P., Rex V. Bradbury, 
 2 Leach, C. C. 639, n. 
 
 A prisoner being under examina- 
 tion before a magistrate on a charge 
 of felony, a statement was made in 
 his presence by the solicitor for the 
 prosecution, which the witness call- 
 ed to prove it said he believed had 
 been taken down in writing : — Held, 
 that parol evidence of the statement 
 was not admissible on the trial of 
 such pi-isoner. Rex v. HoUingshead 
 4 C. & P. 242— Vaughan. 
 
 It is to be presumed that what is 
 stated on oath before a magistrate 
 is taken down in writing, and there- 
 fore parol evidence of such a state- 
 ment is not receivable, unless it is 
 first shewn that it was not so taken 
 down. Phillips v. Wimhurn, 4 C. 
 & P. 273— Tindal. 
 
 If a prisoner's examination before 
 a magistrate concludes " taken and 
 sworn before me," and under that 
 is the magistrate's signature, it is 
 not receivable ; and the judge will 
 neither allow the magistrate's clerk 
 to prove that, in fact, it was not 
 sworn, nor will he receive parol ev- 
 idence of what the prisoner said. 
 
 Rex V. Rivm-s, 7 C. «fe P. 177— 
 Park. 
 
 A party, who was charged with 
 a murder, made a statement before 
 the coroner at the inquest, which 
 was taken down. The paper pur- 
 ported that the statement was made 
 on oath : — rtleld, that, on the tri- 
 al of the party for murder, this 
 statement was not receivable ; and 
 that parol evidence, was not admis- 
 sible to shew that no oath in fact 
 had been administered to the pris- 
 oner. Reg. V. Wheeley, 8 C. & P. 
 250 — Alderson. 
 
 The magistrate returned at the 
 end of the depositions against a 
 prisoner in a case of felony — " The 
 prisoner being advised by his attor- 
 ney, declines to say anything. " It 
 appeared at the trial, that the de- 
 positions had been taken and signed 
 by the witnesses on the 14th of No- 
 vember ; but that, on the 10th of 
 November, minutes had been taken 
 of the evidence, and the prisoner 
 had made a statement, which was 
 taken down in writing by the mag- 
 istrate's clerk: — ^Held, that this 
 statement might be proved on the 
 part of the prosecution by the clerk 
 who took it down ; as, whatever a 
 prisoner has said is evidence, though 
 the magistrate may have neglected 
 his duty in not returning it with the 
 depositions. Reg. v Wilkinson, 8 
 C. & P. 662— Littledale and Parke. 
 
 A magistrate returned with the 
 depositions taken before him, that 
 the prisoner said — " I decline to say 
 anything " : — Held, that a witness 
 for the prosecution could not be al- 
 lowed to give evidence of the terms 
 of a confession, which he stated the 
 prisoner made m the presence of 
 the magistrate, and while under ex- 
 amination. Rex V. Walter, 7 C. & 
 P. 267— Abinger. 
 
 It is not necessary to call either 
 the magistrate or his clerk to prove 
 the due taking in writing of a pris- 
 oner's confession. Rex v. Hopes, 7 
 C. & P. 136. 
 
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548 
 
 EVroENCE. 
 
 A prisoner's statement, on his ex- 
 amination before a magistrate, may 
 be given in evidence (if neither the 
 magistrate nor his clerk is in court), 
 on proof by a witness who was at 
 the examination of the handwriting 
 of the magistrate to the depositions 
 returned to the court, and also that 
 it was taken down in writing, and 
 read over to the prisoner. liex v. 
 Beading, 7 C. & P. 649— Parke ; 
 S. P., JRex V. Rees, 7 C. & P. 568 ; 
 ,S'. P., Rex V. Chappel, 1 M. & Rob. 
 395 — ^Denman. 
 
 If a prisoner, when examined be- 
 fore a magistrate, says that the de- 
 position of F. T. is true, the deposi- 
 tion of F. T. may be read at the 
 trial as a part of the prisoner's state- 
 ment, although P. T. has been ex- 
 amined at the trial as a witness for 
 the prosecution. Rex v. John, 1 C. 
 &P. 324— Patteson. 
 
 Where a magistrate has signed 
 the examination of a prisoner under 
 7 Geo. 4, c. 64, in order to allow it 
 to be read on the trial, it is suffi- 
 cient to prove the handwriting of 
 the magistrate, and to shew that the 
 examination is that of the particu- 
 lar prisoner. Rex v. Foster, 7 C. 
 & P. 148— Alderson. 
 
 A. gave a mortal blow to B., his 
 master, who took out a warrant 
 against A. for an assault. The 
 charge of assault was heard un- 
 der this warrant before Mr. D. 
 and another magistrate, who sum- 
 marily convicted A. of the assault. 
 What was said by A. and B. be- 
 fore the magistrates was not taken 
 down in writing. B. died : — Held, 
 that on the trial of A. for the mur- 
 der of B., Mr. D. might give evi- 
 dence of what B. said in the pres- 
 ence of A. at the hearing before the 
 magistrates of the charge of assault, 
 and of what A. said in answer to it. 
 Rex V. Edmunds, 6 0. & P. 164— 
 Tindal. 
 
 Proof of Oircumstances before Re- 
 ception.'] — A person charged with 
 murder made a confession before 
 
 the coroner. It appeared that, be- 
 fore he made this confession, B., 
 who was both a clergyman and a mag- 
 istrate, had had an interview with 
 him : — Held, that the prosecutors 
 were not bound to call B. before 
 they pvit in the confession, but that 
 it would be fair for them to do so ; 
 and that if the prosecutors did not 
 call B., the 'prisoner might call him 
 before the confession was read to 
 prove that some inducement was 
 held out. Rex v. Olewes, 4 C. & 
 P. 221— Littledale. 
 
 A prisoner was in the custody of 
 A., a constable ; B., another consta- 
 ble, coming into the room, A. left 
 it, and the prisoner immediately 
 made a confession to B. : — Held, 
 that, if the prisoner was in custody 
 as an accused party, A. must be 
 called to prove that he had held out 
 no inducement to the prisoner to 
 confess, before the confession made 
 toB. is receivable ; but if it appears 
 that the prisoner was not then in 
 custody on any charge, but merely 
 detained as an unwilling witness, it 
 will not be necessary to call A. 
 Rex V. SwatUns, 4 C. & P. 548 — 
 Patteson. 
 
 If a prisoner makes a confession 
 to a constable, who takes down 
 what he says, and the prisoner 
 signs it, this paper will be read by 
 the officer of the court. Ih. 
 
 In order to render a confession by 
 a jDrisoner admissible, the prosecution 
 must shew affirmatively, to the sat- 
 isfaction of the judge, that it has 
 not been made under the iniluence 
 of an improper inducement ; if this 
 appears doubtful on the evidence ■ 
 the confession ought to be rejected. 
 Reg. V. Warringham, 2 Den. C. C. 
 447, n. ; 15 Jur. 318— Parke. 
 
 At the trial of a servant for at- 
 tempting to poison her mistress, a 
 medical man having denied that he 
 had held out any inducement to the 
 prisoner to confess, gave evidence of 
 a confession, without which the pris- 
 oner could not have been convicted. 
 Evidence was then given that before 
 
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CONFESSIONS AND ADMISSIONS. 
 
 549 
 
 she made her confession he had said 
 to her, in the presence of her mis- 
 tress, " It will be better for you to 
 tell the truth. " The medical man 
 was recalled, but did not admit 
 this, and the judge left the ev- 
 idence, including the confession, to 
 the jury, but reported, that if the 
 evidence had been given in the first 
 instance he should have excluded 
 the confession : — ^Held, that the con- 
 fession ought to have been struck out, 
 and that the conviction was wrong. 
 Reg. V. Gamer, 3 New Sess. Cas. 
 329 ; 1 Den. C. C. 329 ; T. & M. 7 ; 
 2 C. & K. 920 ; 12 Jur. 944 ; 14 L. 
 J., M. C. 1 ; 3 Cox, C. C. 175. 
 
 Admissibility for and against Pris- 
 oner.^ — If the declaration of the pris- 
 oner, in which she asserts her inno- 
 cence, is given in evidence on the 
 part of the prosecution, and there is 
 evidence of other statements con- 
 fessing guilt, the judge will leave 
 the whole of the contiicting state- 
 ments to the jury for their consider- 
 ation ; but if there is in the whole 
 case no evidence but what is com- 
 patible with the assertion of inno- 
 cence so given iu evidence for the 
 prosecution, the judge will direct 
 an acquittal. Hex v. Jones, 2 C. & 
 P. 629— Bosanquet. 
 
 If a prosecutor proves in evidence 
 a declaration made by a prisoner, it 
 becomes evidence for the prisoner as 
 well as against him, but lUie all oth- 
 er evidence, the. jury may give cred- 
 it to one part of it and not to anoth- 
 er. Sex V. Higgins, 3 C. & P. 603 
 — ^Parke. 
 
 If a prosecutor gives in evidence 
 a declaration made by a prisoner ex- 
 culpatory of himself, the jury is not 
 bound to take this to be true mere- 
 ly because the prosecutor gives it in 
 evidence; but they ought to con- 
 sider how far it is consistent with 
 the rest of the evidence, and wheth- 
 er they believe it to be really true. 
 Bex V. Steptoe, 4 C. & P. 397- 
 Paik and Garrow. 
 
 In an indictment for highway 
 robbery, accompanied by violence, 
 witnesses were called for the prison- 
 er, to shew that he had received 
 certain marks of blood on his coat, 
 before the robbery : — Held, that it 
 was competent to the prosecution to 
 put in the prisoner's statement be- 
 fore the magistrate, wherein he gave 
 a different account of the same mat- 
 ter. Reg. V. White, 2 Cox, C. C. 
 192. 
 
 An incidental observation made 
 by a prisoner in the course of his 
 examination before a magistrate, 
 which is not taken down as part of 
 the prisoner's statement, is not ad- 
 missible in evidence against him at 
 the trial if it relates to any matter 
 which formed part of the judicial in- 
 quiry then being conducted before 
 the magistrate. Reg. v. Carpenter, 
 2 Cox, C. C. 228— Wilde. 
 
 Prisoner's Statement^ — A prison- 
 er, indicted for stealing two heifers, 
 said, " I drove away two heifers 
 from ' the World's End Dolver ' " 
 (i. e. Fen). The prosecutor's farm 
 was called by that name, but he 
 could not swear that there was not 
 any other of the same name in the 
 neighbourhood : — ^Held, insufficient 
 to warrant a conviction. Rex v. 
 Tuffs, 5 C. & P. 167— Lyndhurst. 
 
 On a trial for felony, a prisoner, 
 if defended by counsel, ought not to 
 be allowed to make a statement to 
 the jury in his defence. Reg. v. 
 Manzano, 2 F. & F. 64 ; 6 Jur., N. 
 S. 406— Martin. 
 
 A prisoner will be allowed to 
 make his own statement to the jury, 
 but his counsel cannot be permitted 
 afterwards to address the jury for 
 him. Reg. v. Taylor, 1 F. & F. 
 535— Byles. 
 
 A statement made by a prisoner 
 before suspicion attaches to him, 
 and before search made, in order to 
 accoujit for his possession of proper- 
 ty, which he is afterwards charged 
 with having stolen, is admissible a^ 
 
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550 
 
 EVIDEFCE. 
 
 evidence for him. Seg. v. Abra- 
 ham, 3 Cox, C. C. 430 ; 2 C. & K. 
 550 — Alderson. 
 
 Written notes made by the coro- 
 ner of a statement made in his pres- 
 ence during an inquest by the pris- 
 oner may be used by him at the tri- 
 al, in order to refresh his memory 
 as to what that statement was. Reg. 
 V. Wiggins, 10 Cox, C. C. 562— 
 Bush. 
 
 The reading of such notes does 
 not entitle the prisoner to have the 
 depositions of other witnesses taken 
 in the course of the same inquest 
 read. lb. 
 
 The court refused, on the applica- 
 tion of the prisoner's counsel, to call 
 a witness who had been examined 
 before the coroner, but had not been 
 called by the prosecution. lb. 
 
 2. Depositions. 
 By 30 & 31 Vict. c. 35, s. 6, " de- 
 " positions of persons dangerously 
 " ill or unable to travel, may be 
 " taken, and their testimony per- 
 " petuated and given in evidence, 
 " in event of death ; and by s. 7, 
 " an accused party may be present 
 " at the examination. " 
 
 (a) Mode of Taking. 
 
 (11 4- 12 Vict. c. 42, M. 17, 18, 19.) 
 
 Before Magistrates.] — On a charge 
 of felony, the witnesses who make 
 the depositions on which the prison- 
 er is committed should be examined 
 in the prisoner's presence, and he 
 should hear all the questions put 
 and answered; and if the magis- 
 trate's clerk, before the arrival of 
 the magistrates and of the prisoner, 
 examines the witnesses and takes 
 down what they state, and when 
 the magistrates and prisoner arrive 
 the depositions so taken are read 
 Over to the witnesses in the presence 
 of the magistrates and the prisoner, 
 and the latter is asked whether he 
 has any question to put to any of 
 them, this is wrong. Heg. v. John- 
 son, 2 C. & K. 394— Piatt. 
 
 Where witnesses were sworn and 
 examined before a magistrate, in the 
 presence of the prisoner, and min- 
 utes of the evidence were written 
 down by the clerk to the magis- 
 trates, and afterwards the deposi- 
 tions were written out from the 
 minutes and the statements of the 
 witnesses, by a clerk in the magis- 
 trates' clerk's office, after which 
 the depositions so written out were 
 read over, and signed in the j)res- 
 ence of the magistrate and the pris- 
 oner : — Held, that an answer given 
 by a witness to the clerk in the magis- 
 trates' clerk's office, in the course of 
 writing out the depositions, was 
 properly receivable in evidence, 
 without the production of the depo- 
 sitions. Heg. V. Christopher, 4 New 
 Sess. Cas. 139 ; 2 C. & K. 994; 1 
 Den. C. C. 536 ; T. & M. 225 ; 14 
 Jur. 203 ; 19 L. J., M. C. 103. 
 
 If the confession of a prisoner 
 taken before a magistrate is by him 
 transmitted to the judge, and it has 
 on the face of it a statement that 
 the first caution required by the 11 
 & 12 Vict. c. 42, s. 18, has been 
 given, it is receivable in evidence ; 
 but semble, that if it appeared that 
 an inducement to confess had been 
 previously held out to the prisoner, 
 it would be necessary to shew 
 that the second caution prescribed 
 by that statute had been given. The , 
 prudent course is for the magistrate 
 to give both the cautions, as some 
 inducement to confess may have 
 been held out to the prisoner of 
 which the magistrate is not aware. 
 Reg. V. Sansome, 3 C. & K. 332 ; 1 
 C. C. 545 ; 4 New Sess. Cas. 
 T. & M. 260 ; 4 Cox, C. C. 
 14 Jur. 466 ; 19 L. J., M. C. 
 
 Den. 
 152 
 
 203 
 143, 
 
 It would be always desirable 
 when a person of weak intellect is 
 examined before a magistrate in a 
 felony, that the magistrate's clerk 
 should take down in the depositions 
 the questions put by the magistrate, 
 and the answers given by the wit- 
 ness as to the witness's capacity to 
 
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DEPOSITIONS. 
 
 551 
 
 take an oath. Reg. v. Painter, 2 
 G. & K. 319 ; 2 Cox, 0. C. 244— 
 Wilde. 
 
 In a case of felony the commit- 
 ting magistrate is not hound to hind 
 over all the witnesses who have 
 been examined before him in sup- 
 port of the charge, but only those 
 whose evidence is material to the 
 charge; but it is very desirable 
 that all that has been given in evi- 
 dence before the magistrate should 
 be transmitted to the judge. Meg. 
 V. Smith, 2 C. '& K. 207— Denman. 
 Everything that occurs before a 
 magistrate on the examination of a 
 person on a charge of felony, should 
 be taken down in the depositions, 
 if it is material. Heg. v. WeUer, 
 2 C. & K. 223— Piatt. 
 
 Where, during the examination 
 of a witness before a magistrate in 
 support of a charge of felony, the 
 prisoner interposes an observation 
 which is material, such observation 
 should be taken down in the deposi- 
 tions ; and if it is not, the judge at 
 the trial will not allow any evidence 
 of it to be given. lb. 
 
 Where a prisoner sent for a mag- 
 istrate to make a statement to him, 
 and the magistrate took down the 
 conversation which passed between 
 him and the prisoner, and wrote it 
 immediately under the usual head- 
 ing of a prisoner's statement, and 
 read this over to the prisoner before 
 the prisoner signed his statement 
 which followed it, the judge direct- 
 ed this memorandum of the conver- 
 sation to be read before he decided 
 on the admissibility of the state- 
 
 ment, instead of the magistrate 
 stating orally what passed between 
 him and the prisoner. Beg. v. Ding- 
 ley, 1 C. & K. 637— Pollock. 
 
 The prosecutor proved that when 
 the prisoner was before the magis- 
 trate, she was duly cautioned, a,nd 
 that she made a statement, which 
 was taken down and read over to 
 her, and to which she made her 
 mark, the magistrate also signing it. 
 The prosecutor identified the paper 
 
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 by his own signature to his own de- 
 position, being on the same sheet of 
 paper: — Held, that the prisoner's 
 statement mi^t be given in evi- 
 dence without examining either the 
 magistrate or his clerk. Reg. v. 
 Hearn, Car. & M. 109— Ooltman. 
 
 The depositions of a deceased 
 witness, though not taken wholly in 
 the prisoner's presence, are admissi- 
 ble, if the party was re-sworn, and 
 the depositions read and signed in 
 his presence. Rex v. Smith, 2 Stark. 
 208; Holt, 614; R. & R. C. 0. 
 339 ; see Reg. v. Walsh, 5 Cox, C. 
 C. 115. 
 
 If a prSoner is brought before a 
 magistrate, his statement ought not 
 to be taken till the evidence against 
 him is gone through, and he should 
 then be asked if he has anything to 
 say in answer to the charge. Rex 
 V. Fagg, 4 C. & P. 566— Garrow. 
 A deposition taken by virtue of 11 
 & 12 Vict. c. 42, s. 17, may be read 
 in evidence against a prisoner, al- 
 though taken before two magis- 
 trates who acted only upon that oc- 
 casion, and the prisoner was after- 
 wards committed for trial by an- 
 other magistrate. Reg. v. De Vi- 
 dil, 9 Cox, C. C. 4— Blackburn. 
 
 In order to render depositions 
 taken before a magistrate admissible 
 in evidence upon the trial of a pris- 
 oner, they must be taken in his 
 presence and in that of the magis- 
 trate, and the prisoner must have an 
 opportunity of cross-examining the 
 witnesses in the presence of the mag- 
 istrate. Reg. V. Watts, L. & C. 
 339;12W.R. 112; 9 L. T., N. S. 
 453 ; 33 L. J., M. C. 63 ; 9 Cox, C. 
 C. 395. 
 
 A deposition of a deceased wit- 
 ness, partly taken from the examin- 
 ation of the witness in the presence 
 of the party accused on a previous 
 day, and not then read over, but 
 read over on a subsequent examina- 
 tion of the witness in the presence 
 of the party accused, the witness 
 then being further examined, and 
 cross-examined on behalf of the 
 
552 
 
 EVIDENCE. 
 
 party accused, and the notes of the 
 magistrates' clerk of the whole be- 
 ing subsequently fairly copied in an 
 adjoining room, and then read over 
 to the witness in the presence of the 
 party accused, and signed by the 
 witness and the magistrate, is ad- 
 missible. Beg. V. Sates, 2 F. & P. 
 317— Hill. 
 
 Deposition of a witness taken 
 before magistrates allowed to be 
 read at the trial as evidence against 
 him, although after his evidence 
 was taken the magistrates commit- 
 ted him for trial, his evidence crim- 
 inating himself. Meg. v. Ohidley, 8 
 Cox, C. C. 365— Cookburti. 
 
 Upon a trial for manslaughter 
 the prisoner's deposition on oath, 
 taken by the coroner upon the in- 
 quest, is admissible against him. 
 Beg. V. Bateman, 4 F. & F. 1064— 
 Martin. 
 
 But a deposition not taken in his 
 OTesence will be rejected. Beg. v. 
 Bigg, 4 F. & F. 1085— Smith. 
 
 Q. was charged on an indictment 
 with the wilful murder of his wife. 
 The injuries which resulted in her 
 death were inflicted by the prisoner 
 on the 18th December, 1867 ; she 
 died on the 23d December ; but the 
 prisoner was not taken into custody 
 till the 3rd January, 1868. On the 
 22nd December, 1867 (the day be- 
 fore she died), she being then in the 
 hospital, and having been told by 
 the medical attendant that " he 
 thought there were little hopes of 
 her hving, and that he thought she 
 was going to die," and she herself 
 saying, " I know I shall never get 
 better ; what will become of my 
 poor children?" made a statement 
 which was taken down in writing in 
 the presence of the magistrate. At 
 the trial, it was proposed on behalf 
 of the prosecution to give this state- 
 ment in evidence under 30 & 31 
 Vict. c. 35, s. 6 :— Held, that the 
 statement could not be read in evi- 
 dence without proof of notice hav- 
 ing been given to the accused be- 
 fore it was taken; and that the 
 
 statute could have no operation in 
 the case of a deposition taken while 
 the accused person was keeping out 
 of the way, as the notice was re- 
 quired to be given to the accused 
 before the taking of the statement, 
 and not simply before the reading of 
 it. Beg. v. Quigley, 18- L. T., N. S. 
 211— Mellor and Lush. 
 
 Of Witnesses for Prisoner. J — 
 Where a prisoner charged with fel- 
 ony has witnesses in attendance at 
 the time of the examination before 
 the magistrate, Lord Demnan, C. 
 J,, recommended that they should 
 be then examined, if the prisoner 
 wishes it, and if their evidence is 
 believed, and answers the charge, 
 no further proceedings need be 
 taken. Anon., 2 C. & K. 845. 
 , But if these witnesses contradict 
 those for the prosecution in material 
 points, the case should be sent to 
 a jury, and the depositions of the 
 prisoner's witnesses should be taken, 
 and signed by them, and transmit- 
 ted to the judge, together with the 
 depositions in support of the charge. 
 
 Befqre Coroners.] — A deposition 
 taken before a coroner on an in- 
 quest is admissible where the wit- 
 ness is so ill as to be unable to at- 
 tend at the trial, in the same man- 
 ner as a deposition taken before a 
 magistrate. Beg. v. Hazell, 8 Cox, 
 C. C. 443— Wightman. 
 
 Depositions taken before the cor- 
 oner on an inquisition of murder, 
 cannot be read in evidence on the 
 trial of the indictment, though the 
 deponents are dead, if they are not 
 signed by the coroner, or if signed, 
 and his handwriting cannot be prov- 
 ed. Bex V. England, 2 Leach, C. 
 C. 770. 
 
 On a trial for murder, the deposi- 
 tion on oath of the prisoner, taken 
 before the coroner on the inquest 
 held on the body of the deceased, 
 is not receivable in evidence. Beg 
 V. Owen, 9 C. & P. 238— Gurney. 
 
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DEPOSITIONS. 
 
 553 
 
 The deposition of a prisoner at a 
 coroner's inquest, after a caution 
 from the' coroner, may be read. 
 Eeg. V. Golmer, 9 Cox, C. C. 506— 
 Martin. 
 
 Before Consuls,] — Semble, that 
 depositions taken by a consul abroad 
 under 7 & 8 Vict. c. 112, ss. 58, 
 59, and returned to this country, 
 and certified under the consular seal 
 to have been duly taken, are admis- 
 sible under the Mercantile Marine 
 Act, 1850 (13 & 14 Vict. c. 93, s. 
 115), without further proof, although 
 it appears from extrinsic evidence 
 that the witnesses gave their evi- 
 dence in a foreign language, which 
 was translated into English to the 
 prisoner, and inserted in the deposi- 
 tions by the consul. Reg. v. Rus- 
 sell, 6 Cox, C. C. 60. 
 
 Taken Abroad — Absence of Wit- 
 ness.] — A witness, whose evidence 
 had been taken abroad by the Brit- 
 ish consul, under 17 & 18 Vict. c. 
 104, s. 270, was the captain of a 
 British sailing vessel, which was 
 stated, after examination of the of- 
 ficial records by an officer of the 
 Board of Trade, never to have been 
 in this country. ' When some of the 
 witnesses left the captain, he was in 
 charge of the vessel at Bordeaux, 
 but it was not known where she 
 was then bound for, or whether she 
 had since sailed :— Held, that it was 
 sufficiently proved that the witness 
 was not in the United Kingdom, 
 and his deposition was accordingly 
 'admitted. Reg. v. Anderson, 11 
 Cox, C. C. 154— Byles : S.P.,Reg. 
 V. Gonming, 11 Cox, C. C. 134 — 
 Willes. 
 
 Signing.] — A magistrate must 
 sign a deposition of a witness at the 
 foot of such deposition. Reg. v. 
 Richards, 4. F. & F. 860— Cock- 
 burn. 
 
 To the deposition of a marksman, 
 the magistrates' clerk attached the 
 prisoner's name, so that it appeared 
 
 Fish. Dig.— 42. cygy^y^ed by Microsoft® 
 
 to have been signed by the prison- 
 er's mark : — Held, that the deposi- 
 tion was properly received in evi- 
 dence against him. Reg. v. Midlen, 
 9 Cox, C. C. 339. 
 
 Caption.] — The title or caption 
 of the written deposition of a wit- 
 ness, taken before a committing 
 magistrate, need state no more than 
 that it is the deposition of the wit- 
 ness, and that the examination had 
 reference, to the particular charge 
 upon which the prisoner is being 
 tried. Reg. v. Langridge or Lang- 
 bridge, T. & M. 146 ; 1 Den. C. C. 
 448 '; 3 New Sess. Cas. 645 ; 2 C. 
 & K. 975 ; 13 Jur. 545 ; 18 L. J., 
 M. C. 198 ; 3 Cox, C. C. 466. 
 
 In order to make the deposition 
 of a deceased witness admissible 
 against a prisoner charged with fel- 
 ony, such deposition need not have 
 a separate caption. If there is a 
 caption at the head of the body of 
 depositions taken in the case, that is 
 sufficient. Reg. v. Johnson, 2 C. & 
 K. 355— Alderson. 
 
 In felony the depositions had one 
 caption which mentioned the names 
 of all the witnesses, and at the end 
 had one jurat which also contained 
 the names of all the witnesses, and 
 to which was the signature of the 
 magistrate, and each witness signed 
 his own deposition : — Held, to be 
 correct. Reg. v. Young, 3 C. & 
 K. 106— Williams. 
 
 An examination of a man touch- 
 ing injuries which he has received 
 from the prisoner, if, subsequently 
 on the death of the injured man 
 from the injuries he has received, 
 appended to a caption, charging the 
 prisoner with his murder, is inad- 
 missible on that charge, although it 
 may be admissible as a dying dec- 
 laration. Reg. V. Clarke, 2 F. & F. 
 2 — Wightman. 
 
 A woman having had a rape 
 committed upon her by two, the 
 next day, in distress of mind, cut 
 her throat, and being likely to die, 
 a magistrate was sent for, and in 
 
554 
 
 EVIDEKrCE. 
 
 the presence of the prisoners, her 
 deposition was properly taken. She 
 was told she was likely to die, and 
 she died a few days afterwards. Sub- 
 sequently other witnesses gavB evi- 
 dence against the prisoners before a 
 different magistrate, and to these 
 latter depositions the deposition of 
 the deceased was attached, without 
 any separate caption : — Held, that 
 the deposition of the deceased, hav- 
 ing no caption shewing on what 
 charge it was taken, was inadmissi- 
 ble ; nor was it admissible as a 
 dying declaration, as it did not re- 
 late to the offence which caused the 
 death. Eeg. v. Newton, 1 F. & F. 
 641— Hill and Watson. 
 
 General Aclmissibility.] — A state- 
 ment made by a prisoner before a 
 committing magistrate, and signed 
 by the prisoner and the magistrate, 
 if taken in the fonn prescribed in 
 the schedule to 11 & 12 Vict. c. 42, 
 is admissible in evidence against him 
 at his trial at common law. Reg. 
 V. Sansome, 1 Den. C. C. 545 ; 4 
 New Sess. Cas. 152 ; T. & M. 260 ; 
 2 C. & K. 332 ; 14 Jur. 466 ; 19 L. 
 J., M. C. 143 ; 4 Cox, C. C. 203. 
 
 It will be prudent for justices al- 
 ways to give the prisoner the second 
 caution as well as the first. lb. 
 
 After taking the examination of 
 the witnesses on a charge of felony 
 against the prisoner, the magistrate 
 cautioned the prisoner in the lan- 
 guage prescribed by 11 & 12 Vict. 
 0. 42, s. 18, but did not, as the pro- 
 viso to that section requires, tell the 
 prisoner he had nothing to hope 
 from any promise of favour, or to 
 fear from any threat. The prisoner 
 then made a statement, which was 
 taken down, but was not signed by 
 him or the magistrate. The pris- 
 oner, after a remand, being brought 
 again before the magistrate, some 
 questions were put to the witnesses 
 by the prisoner's attorney, who then 
 objected to the statement being 
 treated as the prisoner's statement, 
 as an addition had been made to the 
 
 evidence, and the prisoner being 
 then asked if he wished to make 
 any statement, declined doing so : — 
 Held, that the prisoner's statement 
 was admissible as evidence against 
 him at his trial. JReq. v. Bond, 4 
 New Sess. Cas. 143 ; T. & M. 242 
 1 Den. C. C. 517 ; 3 C. & K. 337 
 14 Jur. 399 ; 19 L. J., M. C. 138 
 4 Cox, C. C. 231. 
 
 A statement made by a prisoner 
 before a magistrate, not signed 
 either by the magistrate or the pris- 
 oner, is not excluded as evidence 
 because the magistrate omits to in- 
 form him that he has nothing to 
 hope or to fear from either promise 
 or threat. lb. 
 
 Semble, that before a statement 
 made by a prisoner in the presence 
 of, and duly signed by the commit- 
 ting magistrate, can be received in 
 evidence against him, proof must 
 be given that he was cautioned in 
 the manner provided by 11 & 12 
 Vict. c. 42, 8. 18, dehors any dec- 
 laration to that effect contained in 
 the caption of the statement itself. 
 Reg. V. Higson, 2 C. & K. 769 — 
 Alderson. 
 
 Material evidence may be given 
 against a prisoner on his trial, in ad- 
 dition to what appears from the de- 
 positions to have been given against 
 him before the magistrates. Reg. 
 V. Ward, 2 C. & K. 759 — Cress- 
 well. 
 
 If two are taken before a magis- 
 trate on a charge of felony, what 
 the first says in his statement before 
 the magistrate cannot be given in 
 evidence against the second, be- 
 cause when before the magistrate 
 the second is only called upon to 
 answer the statement in the deposi- 
 tions on oath, and not what any 
 other prisoner may have said on his 
 examination. Reg. v. Swinnerton, 
 Car. & M. 593— Patteson. 
 
 A deposition properly taken un- 
 der 11 & 12 Vict. c. 42, before a 
 magistrate, against a prisoner on a 
 charge of assault, is not receivable 
 in evidence against him on a trial 
 
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DEPOSITIONS. 
 
 555 
 
 for feloniously wounding, although 
 on both charges the transaction is 
 the same, and the witness is too ill 
 to attend the trial for the felony. 
 Reg. V. Ledbetter,'3 C.& K. 1 OS- 
 Campbell and Williams. 
 
 Such a deposition is only receiv- 
 able in evidence whei-e the indict- 
 ment is for the same identical of- 
 fence as that charged before the 
 the justice, and upon which such de- 
 position was taken. lb. 
 
 A. was charged before a magis- 
 trate with wounding B., with intent 
 to do him grievous bodily harm, 
 and B.'s deposition was taken. B. 
 afterwards died of the wound, and 
 A. was indicted for his murder : — 
 Held, that on the trial for murder 
 the deposition might be read in evi- 
 dence ; as, though it was not on the 
 same technical charge, it was taken 
 in the same case, and A. had full 
 opportunity for cross-examination. 
 JReg. V. Beeston, Dears. C. C. 405 ; 
 24 L. J., M. C. 5 ; 18 Jur. 1058 ; 3 
 C. L. R. 82. 
 
 On an examination on a charge of 
 felony before a magistrate, the pris- 
 oner was asked if he wished to put 
 any question to a witness against 
 him. Instead of asking anything 
 he made a statement, which was 
 written down on the depositions, 
 but not signed by the prisoner, who 
 had received no caution :— -Held, 
 that this statement was not evidence 
 per se, but that any one who heard 
 the prisoner make it might give 
 evidence of it, refreshing his mem- 
 ory from what was thus written 
 down, but in such a case a prisoner 
 ought to be told that that was not 
 the proper time for him to make a 
 statement. Beg. v. Watson, 3 C. & 
 K. Ill — Patteson. 
 
 If upon the trial of a prisoner a 
 witness gives evidence of facts of 
 which no mention is made in his 
 deposition as taken before the com- 
 mitting magistrate, the clerk to the 
 magistrate majr be called for the 
 purpose of stating that such facts 
 
 were stated by the witness when he 
 made his deposition, but were not 
 taken down by him, the clerk. 
 Reg. V. Moore, 20 L. T., N. S. 987 
 — Lush. 
 
 (b) Returning. 
 
 (11 4- 12 Ffci. c. 42, s. 20. For. 
 mer provisions, 7 Geo. 4, c. 64, ss. 3, 
 4; and 6^7 WiU. 4, c. 114, s. 3. 
 By sect. 4 of the latter act, " all per- 
 " sons under trial shall be entitled, 
 " at the tune of their trial, to in- 
 " spect, without fee or reward, all 
 " depositions (or copies thereof) 
 " which have been taken against 
 " them, and returned into the court 
 " before which such trial shall be 
 " had.") 
 
 It is the duty of a magistrate to 
 return to the judge, not only the 
 depositions of witnesses, but also 
 any confession taken down as made 
 by the prisoner ; and it is no excuse 
 for not doing so, that the confession 
 was wanted to be sent before the 
 grand jury. Rex v Fallows, 5 C. 
 
 6 P. 508 ; S.R., Rex v. JMler, 7 
 C. & P. 269. 
 
 The rule, that the written deposi- 
 tion taken under 7 Geo. 4, c. 64, s. 
 3, was the evidence of what had 
 been stated by a witness before a 
 magistrate on a charge of misde- 
 meanor was not limited to the in- 
 dividual case, with the view to 
 which the evidence was taken down, 
 but extended to all subsequent pro- 
 ceedings, civil as well as criminal. 
 Leach v. Simpson, 5 M. & W. 309 ; 
 
 7 D. P. 0. 513 ; 3 Jur. 654. 
 
 The reading, on the part of the 
 prosecution, of the prisoner's state- 
 ment, returned by the magistrate 
 at the end of the depositions, does 
 not give the prisoner the right to 
 consider the depositions as in evi- 
 dence on the part of the prosecu- 
 tion, though it appears that they 
 were all taken before the statement 
 was made; but if the prisoner 
 wishes to have the whole or any 
 particular part of the depositions 
 
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556 
 
 EVIDENCE. 
 
 read, he must read it as his evi- 
 dence. Bex \. Pearson, 7 C. & P. 
 671 — Patteson and Williams. 
 
 A magistrate is not bound by 
 law to return all that is stated by 
 the witnesses on a charge of felony, 
 but only all that is material to the 
 case ; and though, since the act 
 allowing a prisoner a copy of the 
 depositions, they ought to contain 
 what was stated, that he may know 
 what he has to answer, there is a 
 difference between a witness at the 
 trial adding to his deposition, and 
 his contradicting it. Rex v. Gove- 
 ney, 7 C. & P. 667— Alderson ; S. 
 P., Rex V. Thwnas, 7 C. & P. 817 
 — Parke. 
 
 The magistrate ought to return 
 all that was said by the witnesses 
 with respect to the charge, as the 
 object of the legislature was to en- 
 able prisoners to know what they 
 have to answer on their trial. Rex 
 V. Grady, 7 C. & P. 650 — Den- 
 man. 
 
 It was proved by the magis- 
 trate's clerk, that the deposition of 
 a prosecutor was taken before the 
 magistrate, in the presence of the 
 prisoner, who had a full opportu- 
 nity of cross-examining. The de- 
 position was taken on the same 
 sheet of paper with those of the 
 other witnesses, and at the end of 
 that last deposition were the words, 
 " sworn before me," and the mag- 
 istrate's signature. The prosecutor 
 had died before the trial : — Held, 
 that, on the above facts being 
 proved, the deposition was receiv- 
 able on the trial, although the mag- 
 istrate had not put his signature to 
 this particular deposition. Reg. v. 
 Osborne, 8 C. & P. 113— Coleridge. 
 
 A., who was a witness for the 
 prosecution against B. on a charge 
 of arson, had first been examined 
 by the magistrate before any spe- 
 cific charge was made against any 
 person, and his deposition taken in 
 writing. A. was next accused of 
 the ofience, and his statement as a 
 prisoner was also taken down by 
 
 the magistrate. After this, B. was 
 charged with the offence, and A. 
 examined as a witness, when A.'s 
 statement made at that time was 
 taken down, B. being then com- 
 mitted for trial: — Held, that all 
 these statements of A. ought to be 
 returned to the judge, and not 
 merely the statement made when 
 
 B. was committed. Rex v. Simons, 
 6 C. & P. 540— Alderson. 
 
 Nothing should be returned as a 
 deposition unless the prisoner had 
 an opportunity of knowing what 
 was said, and an opportunity of 
 cross-examining the person making 
 the deposition. Reg. v. Arnold, 8 
 
 C. & P. 621— Deninan. 
 
 The depositions taken before the 
 magistrate against a jmsoner can- 
 not be read against him, where the 
 witness has died since the examina- 
 tion, unless the depositions in cross- 
 examination have been correctly 
 taken and returned to the court. 
 Depositions taken in cross-examin- 
 ation, at a subsequent time to those 
 in chief, and not signed by the 
 committing magistrates, are so ir- 
 regular as to prevent the whole 
 depositions from being read against 
 the prisoner; and this, although 
 both are proved by one of the com- 
 mitting magistrates to have been 
 accurately taken. Reg. v. France, 
 2 M. & Rob. 207— Alderson. 
 
 In a case affecting the life of a 
 party, it is very desirable that a 
 magistrate who took the deposi- 
 tions against the prisoner with his 
 own hand should be called as a 
 witness, before the depositions are 
 read, to prove the correctness of 
 what he took down ; but it is not 
 absolutely necessary, in point of 
 law, that he should be called, and 
 the depqsitions may be read on. 
 proof of his handwriting. Reg. v. 
 Pikedey, 9 C. & P. 124— Parke 
 and Bosanquet. 
 
 Where a magistrate returns with 
 
 the depositions, that a prisoner was 
 
 sworn and made a statement, the 
 
 [ statement cannot be received in 
 
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DEPOSITIONS. 
 
 557 
 
 evidence against him, although a 
 witness states that he was not in 
 fact sworn. Ih. 
 
 Where anything is found in con- 
 sequence of a statement made by a 
 prisoner, under circumstances which 
 preclude its being given generally 
 in evidence, such part of it as re- 
 lates to the thing found in conse- 
 quence is receivable, and ought to 
 be proved. Reg. v. Gould, 9 C. & 
 P. 364— Tindal and Parke. 
 
 It is not necessary to be clearly 
 shewn that statements, made by a 
 prisoner on his examination before 
 a magistrate, were reduced to writ- 
 ing, in order to exclude parol evi- 
 dence of such statements. Reg. v. 
 McGovern, 5 Cox, C. C. 506. 
 
 (c) Illness, Death, Insanity, or Ab- 
 sence of Witness. 
 
 (11 & 12 Vict. c. 42, s. 17.) 
 
 Where a witness is ill, and is at- 
 tended by a surgeon, the judge at 
 the trial will not receive the wit- 
 ness's depositions in evidence unless 
 the surgeon attends at the trial to 
 prove that the -witness is unable to 
 travel ; but where a witness is per- 
 manently disabled, and is not at- 
 tended by a surgeon, other evi- 
 dence that the witness is unable to 
 travel may be sufficient ; but where 
 the witness is attended by a sur- 
 geon, and a person proves at the 
 trial that he on the 18th March 
 saw the witness in bed, and that he 
 appeared ill, the commission day 
 being the 21st, and the trial the 
 23rd, this is not sufficient proof of 
 the illness of the witness to render 
 his deposition admissible. Reg. v. 
 RUey, 3 C. & K. 116— Patteson. 
 
 Depositions of a witness so ill as 
 to be unable to travel are admissi- 
 ble in evidence before the grand 
 jury as well as before the petty 
 iury Reg. v. Clements, 2 Den. C. 
 C. 251 : T. &. M. 579 ; 15 Jur. 
 407 ; 20 L. J., M. C. 193 ; 5 Cox, 
 C. C. 191. 
 
 On the trial of a felony, where 
 
 the prosecutor is bed ridden, and 
 not likely to be able to attend the 
 assizes, his deposition, taken by the 
 committing magistrate in the pres- 
 ence of the prisoner, may be given 
 in evidence ; and the deposition 
 may be proved by a person who 
 was present, without calling the 
 magistrate or his clerk. Reg. v. 
 Wilshaw, Car. & M. 145 — Colt- 
 man. 
 
 If a witness is actually insane at 
 the time of the trial of an indict- 
 ment for a misdemeanor, his depo- 
 sition taken before the committing 
 magistrate is receivable the same 
 as if the witness was dead, al- 
 though the insanity of the witness 
 may be only temporary ; but if it 
 appears that the witness is not in- 
 sane, but that the witness has been 
 suffering from delirium and de- 
 pression of spirits in consequence of 
 a blow on the head, and that his 
 intellects are affected by the in- 
 juries he has received, and it is the 
 opinion of his physicians that he 
 will recover, then the deposition is 
 not receivable. Reg. v. MarshaM, 
 Car. & M. 147— Coltman. 
 
 If the deposition of a witness on 
 charge of an indictable offence has 
 been regularly taken before a mag- 
 istrate, and at the time of the trial 
 such witness is dead or so ill as not 
 to be able to travel, the deposition 
 may be read as evidence against 
 the prisoner. So also, if it is 
 proved that the witness is kept 
 away by the prisoner's procure- 
 ment. Reg. V. Scaife, 17 Q. B. 
 238 ; 5 Cox, C. C. 243 ; 2 Den. C. 
 C. 281 ; 15 Jur. 607 ; 20 L. J., M. 
 C. 229. 
 
 But such deposition is not admis- 
 sible on the ground merely that the 
 prosecutor, after using every possi- 
 ble endeavour, cannot find the wit- 
 ness, lb. 
 
 If procurement of the absence is 
 shewn, and there are several pris- 
 oners, the deposition is evidence 
 against those only who are proved 
 to have procured the absence. lb. 
 
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558 
 
 EVIDENCE. 
 
 Before a deposition of a person 
 who is dead, or so ill as not to be 
 able to travel, can be read, it must 
 be proved affirmatively on the part 
 of the prosecution that the deposi- 
 tion was taken in the presence of 
 the accused person, and that he or 
 his counsel or attorney had a full 
 opportunity of cross-examining the 
 witness. Reg. v. Day, 6 Cox, C. 
 C. 55— Piatt. 
 
 To give the accused a full oppor- 
 tunity within the meaning of the 
 statute, the examination must be 
 taken, question by' question, in his 
 presence, and in the presence of the 
 magistrate, and it is not suiScient 
 to read over the statement of the 
 ■witness, previously taken and com- 
 mitted to writing, in the absence of 
 the magistrate. Ih. 
 
 The accused must also be asked 
 whether he has any question to put 
 with reference to the statement of 
 the individual witness. Ih. 
 
 To render the deposition of an 
 absent person admissible, it is not 
 necessary that he should be abso- 
 lutely unable to travel ; it is suffi- 
 cient if his attendance would place 
 his life in jeopardy. Ih. 
 
 The deposition of a witness ab- 
 sent from illness, to be admissible 
 must be regular, and appear to 
 have been regularly taken upon 
 the face thereof, and cannot be 
 proved by extraneous evidence to 
 have been properly taken in fact. 
 Reg. V. MUUr, 4 Cox, C. C. 166— 
 Maule. 
 
 A witness, who had been ex- 
 amined before the committing mao-. 
 istrate, came to the assize town 
 where the trial of the accused was 
 to take place, and into the build- 
 ing where the court was sitting, 
 but before the trial came on re- 
 turned to his home by the advice 
 of a medical man, who deposed 
 that in his judgment it would have 
 been highly dangerous for the wit- 
 ness to remain. While the trial 
 was going on, the witness was on 
 his way home: — Held, that the 
 
 witness was unable to ti-avel, with- 
 in 11 & 12 Vict. c. 42, s. 17, and 
 consequently that his deposition be- 
 fore the committing magistrate 
 might be read in evidence. Reg. 
 V. Wicker, 18 Jur. 252 — Parke 
 and Channell. 
 
 A witness, who had been exam- 
 ined before the magistrate, came 
 up five miles from the country and 
 gave her evidence before the grand 
 juiy. She went back at night and 
 returned in the morning for two 
 days, during which she was wait- 
 ing for the trial to come on. At 
 the trial, on the third day, it was 
 proved that she had been attacked 
 that morning with a bowel com- 
 plaint, and that when the police- 
 man left her residence early on that 
 day she was unable to travel : — 
 Held, that her deposition was not 
 admissible. Reg. v. Harris, 4 Cox, 
 C. C. 440. 
 
 It is a question for the judge to 
 determine whether the proof of a 
 witness being so ill as not to be 
 able to travel, within the 11 &, 12 
 Vict. c. 42, s. 17, is sufficient for 
 the purpose of admitting his depo- 
 sition before the committing magis- 
 trate. Reg. V. Stephenson, L. & 
 C. 165; 8 Jur., K S. 522; 31 L. 
 J., M. C. 147; 9 Cox, C. C. 156; 
 6 L. T., K S. 334; S. P., Reg. 
 V. Groucher, 3 F. & F. 285. 
 
 Therefore, when a deposition was 
 admitted upon evidence that the 
 prosecutrix was daily expecting her 
 confinement and otherwise poorly, 
 and therefore too ill to travel, the 
 court declined to interfere with the 
 exercise of the discretion of the 
 judge. Ih. 
 
 Where a witness for the prosecu- 
 tion is so ill as not to be able to 
 travel, the judge may, at his dis- 
 cretion, permit the deposition to be 
 read, or postpone the trial. Reg. 
 V. TaU, 2 F. & F. 563— Crompton. 
 
 In the absence of medical evi- 
 dence, a deposition will not be al- 
 lowed to be read. Reg. v. Wdton 
 9 Cox, C. C. 296— Byles. 
 
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DEPOSITIONS. 
 
 559 
 
 A witness who had been exam- 
 ined before the magistrate, and 
 whose deposition ,was returned, 
 was, at the trial, said to be too 
 ill to give evidence, though not too 
 ill to be able to travel. The depo- 
 sition was read, the court being of 
 opinion that the words of the stat- 
 ute, " so ill as not to be able to 
 travel," were applicable to a case 
 where the witness is so ill as not to 
 be able to travel for the pm-pose 
 of giving evidence. Reg. v. WU- 
 son, 8 Cox, C. C. 453 — Russell 
 Gurney, Recorder. 
 
 A superintendent of police, hav- 
 ing seen a policeman, a material 
 witness, in bed two days before the 
 trial, and stating that he appeared 
 ill and so weak that he could not 
 get out of bed : — Held, that this, 
 without medical evidence as to the 
 nature of the illness, was not suffi- 
 cient to admit the policeman's de- 
 positions. - Heg. V. Williams, 4 P. 
 & P. 515— Pigott. 
 
 If a witness has had an attack of 
 paralysis, and is unable to hear or 
 speak, or give evidence, and his 
 physician does not permit him to 
 go about, his depositions may be 
 read, though it would not endan- 
 ger his life to travel, or to be 
 brought into court. Hec/. v. Cock- 
 burn, Dears. & B. C. C. 203; 3 
 Jur., N. S. 447 ; 26 L. J., M. C. 
 136 ; 7 Cox, C. C. 265. 
 
 Delivery of a dead child is prima 
 facie evidence of illness, and the 
 deposition of the party is admissi- 
 ble. Heg. V. Wilton, 1 P. & P. 
 309— Willes. 
 
 But depositions of an absent wit- 
 ness are not admissible before the 
 grand jury without medical evi- 
 dence of his illness. Heff. v. I'hil- 
 ips, 1 P. & P. 105— Erie. 
 
 Absent Abroad.] — The fact that 
 a witness, whose deposition has been 
 taken before the committing ma.g- 
 istrate, is at the time of the trial 
 residing abroad, does not render 
 such deposition admissible in evi- 
 
 dence against the prisoner at the 
 trial, under the 11 & 12 Vict. c. 42, 
 s. 17. Heg. v. Austin, Dears. C. C 
 612; 2 Jur., N. S. 95 ; 25 L. J., M. 
 C. 48; 7 Cox, C. C.55. 
 
 A witness, whose evidence had 
 been taken abroad by the British 
 consul, under 17 & 18 Vict. c. 104, 
 s. 270, was the captain of a British 
 sailing vessel, which was stated, af- 
 ter examination of the official rec- 
 ords by an officer of the Board of 
 Trade, never to have been in this 
 country. When some of the wit- 
 nesses left the captain, he was in 
 charge of the vessel at Bordeaux, 
 but it was not known where she was 
 then bound for, or whether she had 
 since sailed : — Held, that it was suf- 
 ficiently proved that the witness 
 was not in the United Kingdom, 
 and his deposition was accordingly 
 admitted. Heg. v. Anderson, 11 
 Cox, C. C. 154— Byles ; S. P., Meg. 
 V. Gonming, 11 Cox, C. C. 134 — 
 Willes. 
 
 (d) Examination on. 
 
 The practice of putting the depo- 
 sitions into the hands of a witness 
 on cross-examination, telling him to 
 read over the evidence which he 
 had given before the magistrates, 
 and then asking him whether he 
 adhered to his present statement, 
 without putting the depositions in 
 evidence, or giving the jury an op- 
 portunity of knowing their contents, 
 is inexpedient and contrary to prin- 
 ciple. Reg. V. Ford, 2 Den. C. C. 
 245 ; 3 C. & K. 113 ; T. & M. 573 ; 
 15 Jur. 406 ; 20 L. J., M. C. 171. 
 
 The proper course is, to read the 
 deposition to him at the time, and 
 to cross-examine upon it, or to put 
 it in afterwards as evidence for the 
 prisoner. lb. 
 
 On the trial of a prisoner, his 
 counsel may ask a witness for the 
 prosecution whether he did not 
 make a certain statement whilst 
 under cross-examination before the 
 magistrates, although the deposi- 
 tions contain no note of such cross- 
 
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560 
 
 EVIDENCE. 
 
 examination. Reg. v. Curtis, 2 C. 
 & K. 763— Erie. 
 
 A witness cannot be cross-exam- 
 ined as to his statements made be- 
 fore the committing magistrate un- 
 til his depositions have been read 
 over to him; such questions may, 
 however, be put by the court per- 
 sonally, and by the prisoner's coun- 
 sel, as the mouthpiece of the court, 
 by its permission. Heg. v. Peel, 2 
 F. & F. 21— Willes. 
 
 A witness may be asked by pris- 
 oner's counsel as to what he said 
 before the coroner, without putting 
 in the depositions. JReg. v. Moloney, 
 9 Cox, C. C. 26— Byles. 
 
 A prosecution cannot use or refer 
 to the depositions without putting 
 them in. Reg. v. MuUer, 10 Cox, 
 C. C. 43— Pollock and Martin. 
 
 The deposition made by a witness 
 was allowed to be put into his hands 
 to refresh his memory, and he was 
 then asked what he said about a 
 fact which he had answered before 
 in the negative, and answered the 
 question affirmatively. Reg. v. 
 Quin, 3 F. & F. 818— Wightman. 
 
 There is no distinction between 
 depositions before a coroner and be- 
 fore a magistrate with reference to 
 the modes of cross-examination up- 
 on them. A witness cannot there- 
 fore be asked on cross-examination 
 as to what he said before the cor- 
 oner. But the deposition may be 
 put into the witness's hands, to 
 read over to himself and refresh his 
 memory. Reg. v. Barnet, 4 Cox, 
 C. C. 269— Piatt. 
 
 A witness cannot be asked on 
 cross-examination whether, when he 
 was examined before the magistrate, 
 he recollected such and such a par- 
 ticular fact. Reg v. Newton, 4 Cox, 
 C. C. 262— Patteson. 
 
 Where an accomplice who could 
 not read had made a statement be- 
 fore the committing magistrate, and 
 at the trial gave evidence falling 
 very short of what Jie said before 
 the magistrate, the judge allowed 
 his deposition to be shewn to him. 
 
 but would not allow the deposition 
 to be read to him by the officer of 
 the court, that the counsel for the 
 f)rosecution might examine upon it. 
 Reg. V. Beardmore, 8 C. & P. 260 
 — Grumey. 
 
 Where, on cross-examination, a 
 witness is asked, with permission 
 of the judge, to look at his deposi- 
 tion before the committing magis- 
 trate, and say whether he still ad- 
 heres to his present statement, and 
 it appears the witness is unable to 
 read, the deposition cannot be read 
 to the witness for the same purpose 
 without being put in as evidence. 
 Reg. v. MaUhews, 4 Cox, C. C. 93 
 —Erie. 
 
 If upon a trial a witness makes a 
 statement which does not appear in 
 his deposition, he may be asked, on 
 cross-examination, without his de- 
 position being put in, whether he 
 ever made such a statement before. 
 Reg. V. Moir, 4 Cox, C. C. 279. 
 
 In a case of felony, in order to 
 prove that a witness did not state a 
 particular fact before the magis- 
 trate, his deposition must be put in, 
 and a witness cannot be questioned 
 as to what he either did or did not 
 state before the magistrate, without 
 first allowing him to read or to have 
 read to him, his deposition taken 
 before the magistrate. Reg. v. Tay- 
 lor, 8 C. & P. 726— Erskine. 
 
 Where a witness for the prosecu- 
 tion gives a different answer on ex- 
 amination in chief to that which 
 was expected, his deposition may 
 be put in his hands for the purpose 
 of refreshing his memory, and the 
 question then put to him. If the 
 witness persists in giving the same 
 answer after his memory has been 
 so refreshed, the question may be 
 repeated to him from the deposition 
 in a leading form. Reg. v. Wil- 
 liams, 6 Cox, C. C. 343-^ Williams. 
 
 Upon the trial of an indictment 
 for felony, a witness for the prosecu- 
 tion was asked by the prisoner's 
 counsel whether he did not make a 
 certain statement to the magistrate's 
 
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DEPOSITIONS. 
 
 561 
 
 clerk in answer to a question put by 
 him in the absence of the magistrate 
 and of the prisoner, wliilst he (the 
 clerk) was writing out the deposi- 
 tions from the nunutes of the ex- 
 amination and cross - examination 
 which had been previously taken 
 before the magistrate, and put for 
 the purpose of making the deposi- 
 tions more complete. The deposi- 
 tions, when written, were afterwards 
 read over to the witnesses and in 
 the presence of the magistrate and 
 the prisoner, to whom opportunity 
 of cross-examining them was again 
 afforded, the witnesses swore that 
 they were true and signed them : — 
 Held, that even if the depositions so 
 taken had, when re-sworn, the legal 
 character of the depositions, the pris- 
 oner's counsel was entitled to ask 
 the above question without putting 
 them in, and the witness was bound 
 to answer it. Reg. v. Christopher, 
 4 Cox, C. C. 76 ; 19 L. J., M. C. 
 103 ; 1 Den. C. C. 536. 
 
 In cross-examining a witness who 
 has been examined before the mag- 
 istrate, although it is admissible to 
 ask him, referring to the depositions, 
 whether he has not said so-and-so, 
 his answer must be taken, unless the 
 depositions are put in to contradict 
 him, and it is not admissible to state 
 that the depositions do contradict 
 the witness without thus putting 
 them in. JReg. v. Riley, 4 F. & F. 
 964— Channell. 
 
 (e) Copies. 
 
 By 11 & 12 Vict. c. 42, s. 27, ^' at 
 " any time after all the examina- 
 " tions shall have been completed, 
 " and before the first day of the as- 
 " sizes or sessions, or other first sit- 
 " ting of the court, at which any per- 
 " son admitted to bail is to be tried, 
 " such person may require, and shall 
 " be entitled to have of and from the 
 " ofiicer or person having the custo- 
 " dy of the same, copies of the de- 
 " positions on which he shall have 
 " been committed or bailed, on pay- 
 " ment of a reasonable sum for the 
 
 " same, not exceeding at the rate of 
 "three halfpence for each folio of 
 " 90 words." {Substituted for pro- 
 vision contained in 6 & 7 Will. 4, c. 
 114, s. 3, repealed by s. 3i of 11 & 
 12 Vict. c. 42.) 
 
 Under 6 & 7 Will. 4, c. 114, s. 3, 
 persons committed to prison for re- 
 examination on charges of felony, 
 were not entitled to demand copies 
 of the deposition. Fletcher [Hx 
 parte), 1 New Sess. Cas. 40 ; ID. 
 & L. 896 ; 8 Jur. 269 ; 13 L. J., M. 
 C. 67 ; S. G. nom. Reg. v. London 
 (•Lord Mayor), D. & M. 486; 5 Q. 
 B. 555. 
 
 The right to copies does not at- 
 tach until the prisoner is held to 
 bail, or committed to prison for tri- 
 al, lb. 
 
 It is the duty of the magistrate 
 to complete and sign the deposi- 
 tions as soon as they are taken. lb. 
 
 A party applying to the Queen's 
 Bench for a rule, calling upon the 
 justices to furnish copies of the de- 
 positions taken against him, must 
 shew a right existing at the time of 
 his application to the court, as well 
 as at the time of the refusal by the 
 justices to grant the copies. Reg. 
 V. Herefordshire (Justices), 1 L. M. 
 & P. 323 ; S. O. nom. Humphrys 
 [Ex parte), 4 New Sess. Cas. 179 ; 
 15 Jur. 608 ; 17 L. J., M. C. 189 ; 
 — B. C. — Coleridge. 
 
 The U & 12 Vict. c. 42, s. 27, 
 applies only to the case of a person 
 committed to prison or admitted to 
 bail for the purpose of being tried. 
 lb. 
 
 Depositions taken before a cor- 
 oner were within 6 & 7 Will. 4, c. 
 114, s. 3, which required copies of 
 depositions to be furnished on ap- 
 plication to prisoners at the rate of 
 charge therein provided ; and a cor- 
 oner who demands more is guilty of 
 extortion in his office. Reg. v. White, 
 5 Cox, C. C. 562. 
 
 A prisoner was not entitled, un- 
 der 6 & 7 Will. 4, c. 114, s. 3, to a 
 copy of his own statement returned 
 by the magistrate, as made before 
 
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o62 
 
 EVIDENCE. 
 
 him, but only to a copy of the depo- 
 sitions of the witnesses against him. 
 Beg. V. Ayhtt, 8 C. & P. 669— Lit- 
 tledale and Parke. 
 
 If it is shewn, that depositions 
 were regularly returned by the 
 magistrates to the proper officer, 
 and it is proved by the latter that 
 they cannot be found after diligent 
 search, the prisoner's counsel may 
 cross-examine from copies of them, 
 those copies being proved to be cor- 
 rect by the magistrate's clerk. Reg. 
 V. SheUard, 9 C. & P. 277— Patte- 
 son. 
 
 A. was committed for having re- 
 ceived stolen iron. B. was admitted 
 as a witness for the crown against 
 A. The counsel of A. applied to the 
 judge for a sight of the depositions 
 which had been returned against B., 
 which was granted. Reg. v. Wal- 
 ford, 8 C. & P. 767— Patteson. 
 
 A coroner's jury, on the investi- 
 gation of a case of homicide, re- 
 turned a verdict of wilful murder 
 against some person or persons un- 
 known. The coroner returned the 
 deposition he had taken to the Cen- 
 tral Criminal Court : — Held, on ap- 
 plication by the counsel for the pris- 
 oner indicted for the murder of the 
 same person, for a copy of such de- 
 positions, that, although the coroner 
 could not in such a case have been 
 compelled to return them, under 7 
 Geo. 4, c. 64, s. 4, yet that having 
 done so, the judges had power, by 
 their general authority as a court of 
 justice, to order a copy to be given 
 if they thought it material to the 
 interests of justice. Reg. v. Green- 
 acre, 8 C. & P. 32— Littledale and 
 Coleridge. 
 
 3. Presumptions or Probabilities of 
 GniU. 
 In a criminal case, the jury, in 
 order to convict, ought to be satis- 
 fied that by the evidence, affirma- 
 tively, as a conviction created in 
 their minds beyond all reasonable 
 doubt, that the guilt of the prisoner 
 is established ; and if there is only 
 
 an impression of probability, tbey 
 ought to acquit him. Reg. v. White, 
 4 P. & F. 383— Martin. 
 
 So far as the case rests on direct 
 testimony, the jury should, if there 
 are any circmnstances to impeach 
 the credibility of the witnesses, look 
 carefully to those circumstances as 
 elements of doubt in the case. Tb. 
 
 A mere scintilla of evidence not 
 sufficient to justify a verdict ought 
 not to be left to the jury. Reg. v. 
 Smith, L. & C. 607. 
 
 4. Accomplices. 
 
 It is not a rule of law, but of 
 practice onlj', that a jury should 
 not convict on the unsupported tes- 
 timony of an accomplice. Reg. v. 
 Stubbs, Dears. C. C. 555 ; 1 Jur., N. 
 S. 1115; 25L. J., M.C. 16. 
 
 Therefore, if a jury chose to act 
 on such evidence only, the convic- 
 tion cannot be quashed as bad in 
 law. lb. 
 
 The better practice is for the 
 judge to advise the jury to acquit, 
 unless the testimony of the accom- 
 plice be corroborated, not only as to 
 the circumstances of the oifence, but 
 also to the participation of the ac- 
 cused in the transaction ; and when 
 several parties are charged, that it is 
 not sufficient that the accomplice 
 should be confirmed as to one or 
 more of the prisoners to justify a 
 conviction of those prisoners with 
 respect to whom there is no con- 
 firmation, lb. 
 
 The rule that the evidence of an 
 accomplice requires corroboration is 
 not a rule of law, but a rale of gen- 
 eral and usual practice ; the appli- 
 cation of which is for the discretion 
 of the judge by whom the case is 
 tried ; and in the application of the 
 rule much depends on the nature of 
 the offence, and the extent of the 
 complicity of the witness in it. Reg. 
 V. Boyes, 1 B. & S. 311 ; 30 L. J., 
 Q. B. 301. 
 
 One prisoner who has pleaded 
 guilty will not be allowed to be 
 called as a witness against another, 
 
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ACCOMPLICES. 
 
 663 
 
 until the judge has heard the evi- 
 dence necessary to corroborate that 
 of an accomplice. Meq. v. &oarks, 
 1 F. & F. 388-Hill. ' 
 
 An indictment charged K. and 
 W. with falsely pretending to B. 
 that they had a quantity of tobacco, 
 which they proposed to sell, and 
 did sell to him, and thereby obtain- 
 ed money from him. The evidence 
 was, that K. and P., acting to- 
 gether, were the chief parties by 
 whom the false pretences had been 
 made : — Held, that the acts of P. 
 were the acts of K., and admissible 
 against him upon the indictment. 
 Heg. V. Kerrigan, L. & C. 383 ; 9 
 Cox, C. C. 441 ; 33 L. J., M. C. 71 ; 
 12 W. R. 416 ; 9 L. T., N. S. 843. 
 
 Before admitting a person as an 
 approver, it is the duty of the mag- 
 istrate to inquire into the case and 
 see how far such approver is mixed 
 up with the transaction, or to what 
 extent he would be criminally liable 
 for his acts. Though an accomplice, 
 who had been admitted as an ap- 
 prover, may give evidence, no mat- 
 ter how great his own criminality, 
 it is a wise observation that, with- 
 out corroboration, a jury should be 
 slow to convict on such evidence. 
 Heg. V. Dunne, 5 Cox, C. C. 507. 
 
 A prisoner ought not to be con- 
 victed upon the evidence of any 
 number of accomplices, unconfirm- 
 ed by other testimony. Hex v. 
 Makes, 5 C. & P. 326— Littledale, 
 Bolland, and Alderson. 
 
 Although all persons pVesent at 
 and sanctioning a prize fight, where 
 one of the combatants is killed, are 
 guilty of manslaughter, as principals 
 in the second degree ; yet they are 
 not such accomplices as to require 
 their evidence to be confirmed, if 
 they are called as witnesses against 
 other parties charged with the man- 
 slaughter. Bex V. Hargrave, 5 C. 
 & P. 170— Patteson. 
 
 An accomplice may give evi- 
 dence before a grand jury to sup- 
 port an indictment against a parti- 
 
 ceps criminis. Rex v. Dodd, 1 Leach, 
 C. C. 155. 
 
 An accomplice does not require a 
 confirmation as to the person he 
 charges, if he is confirmed as to the 
 particulars of his story. Hex v. 
 Mrkett, R. & R. C. C. 251. 
 
 On an indictment against princi- 
 pal and accessories, the case against 
 the principal was proved by the' 
 testimony of an accomplice, who 
 was confirmed as to the accessories, 
 but not as to the principal. The 
 jury was directed to acquit the 
 prisoners. Rex v. Wells, M. & M. 
 326— Littledale. 
 
 The information of a dead ac- 
 complice may be read in evidence 
 against a prisoner. Rex v. Westbeer, 
 1 Leach, C. C. 12. 
 
 An accomplice, who is a witness 
 for the crown, is not entitled as a 
 matter of right to be exempt from 
 being prosecuted for other of- 
 fences at the same assizes, at which 
 he had been such witness. Rex v. 
 Lee, R. & R. C. C. 361 ; S. JP., 
 Rex V. Bnmton, R. & R. C. C. 454. 
 
 If the testimony of an accom- 
 plice is confirmed so far as it relates 
 to one prisoner, but not. as to an- 
 other, the one may be convicted on 
 the testimony of the accomplice, if 
 the jury deems him worthy of credit. 
 Rex V. Bawber, 3 Stark. 34, 35, n. 
 — Bayley. 
 
 And the corroboration of the evi- 
 dence of an accomplice need not be 
 on every material point, but must 
 be so confirmed as to convince the 
 jury that his statement was correct 
 and true. Rex v. Barnard, 1 C. & 
 P. 88— Hullock. 
 
 A person indicted for a misde- 
 meanor may be legally convicted 
 upon the uncorroboi'ated evidence 
 of an accomplice. Rex v. Jones, 2 
 Camp, 132— EUenborough ; S. P., 
 Rex V. Hastings, 7 C. & P. 152— 
 Denman, Park, and Alderson. 
 
 There is a great difierence be- 
 tween confirmation of an accom- 
 plice as to the circumstances of the 
 
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564 
 
 EVIDENCE. 
 
 felony, and those which apply to 
 the individual charged. The for- 
 mer only shew that the accomplice 
 was present at the commission of 
 the oifence, but the others shew 
 that the prisoner was connected 
 with it. Confirmation of an accom- 
 plice as to the commission of the 
 felony, is really no confirmation at 
 all ; and though a jury may legally 
 convict on the evidence of an ac- 
 complice only, the judges advise 
 them not to act on the evidence of 
 an accomplice, unless he is con- 
 firmed as to the particular person 
 who is charged with the offence. 
 Bex V. WUkes, 7 C. & P. 272 -Al- 
 derson. 
 
 In a case of felony the testimony 
 of the wife of an accomplice is not 
 such evidence as a jury ought to 
 rely upon as confirmation of the 
 statement of the accomplice. Rex 
 V. Need, 7 C. & P. 168— Park. 
 
 On a charge of stealing two 
 sheep, an accomplice stating that 
 the prisoner himself stole them ; 
 and, to confirm him, evidence was 
 given that a quantity of mutton 
 was found in the house in which the 
 prisoner resided, which correspond- 
 ed with parts of the stolen sheep, is 
 sufficient confirmation of the ac- 
 comphce to be left to the jury ; but, 
 if the confirmation had merely gone 
 to the extent of confirming the ac- 
 complice as to a matter connected 
 with himself only, it would not have 
 been suflicient. Beg. v. BirkeU, 8 
 C. & P. 732— Patteson. 
 
 The confirmation of an accom- 
 plice ought to be as to some matter 
 which goes to connect the prisoner 
 with the transaction, and it would 
 be highly dangerous to act on the 
 evidence of an accomplice uncon- 
 firmed with respect to the party ac- 
 cused. Beg. V. Dyke, 8 C. & P. 
 261— Gurney ; S. P., Beg. v. Far- 
 ler, 8 C. & P. 106— Abinger. 
 
 The confirmation of an accom- 
 plice should be as to some circum- 
 stance affecting the party accused, 
 as by shewing the party and accom- 
 
 plice together under such circum- 
 stances as were not likely to have 
 occuiTed, unless there was concert 
 between them. Beg. \. Fa/rler, 8 
 C. & P. 106— Abinger. 
 
 In a case of night-poaching, the 
 only confirmation was, that, on the 
 evening of the offence, the accom- 
 plice and the prisoner were drink- 
 ing together at a public-house, com- 
 monly frequented by the prisoner, 
 and that they both left the house 
 together, when it was shut up for 
 the night. This was considered no 
 sufficient confirmation. Ih. 
 
 A married woman who consents 
 to her husband's committing an un- 
 natural offence with her, is an ac- 
 complice in the felony, and, as such, 
 her evidence requires confirmation, 
 although consent or not consent is 
 quite immaterial to the offence. 
 Beg. v. Jellyinan, 8 C. & P. 604—' 
 Patteson. 
 
 An accomplice, who, in a case 
 out of the statutes, is, ^nder the 
 practice allowed, admitted by the 
 justices of peace as a witness, and 
 is a,fterwards prosecuted, has only a 
 claim to the mercy of the crown, 
 founded on an express or implied 
 promise of the magistrate on a con- 
 dition performed; and it depends 
 on his conduct fully and fairly dis- 
 closing the joint guilt of himself 
 and his companions, whether the 
 court will admit him to bail, that 
 he may apply for a pardon. Bex 
 V. Budd, Cowp. 331 ; 1 Leach, C. 
 C. 115. ^ 
 
 5. Government Spies. 
 Upon an indictment for murder, 
 a Serjeant in the police, after stating 
 in cross-examination that he attend- 
 ed a debating society where polit- 
 ical subjects were discussed, by the 
 direction of the commissioners of 
 poUce, for the purpose of noticing 
 and reporting, and that he went in 
 private clothes, was asked if he 
 went as a spy : — Held, that the 
 question could not be put, as it re- 
 quired the witness to draw an infer- 
 
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COMPETENCY OP WITNESSES. 
 
 565 
 
 ence from facts ; but tliat be might 
 be asked under what directions, and 
 for what purpose he went, and 
 what he did when there. Reg. v. 
 Bernard, 1 F. & P. 240 — Camp- 
 bell. ^ 
 A person employed by govern- 
 ment to mix with conspirators, and 
 pretending to aid their designs for 
 the purpose of betraying them, does 
 not reqnire corroboration as an ac- 
 complice. JReg. V. Mullins, 3 Cox, 
 C. C. 526. 
 
 6. Competency of Witnesses. 
 Generally.']— Ey 6 & 7 Vict. c. 
 85, s. 1, "no person offered as a 
 " witness shall be excluded by rea- 
 son of incapacity from crime, or 
 interest, from giving evidence in 
 any criminal proceeding in any 
 court, but every person so offered 
 may and shall be admitted to 
 give evidence on oath or solemn 
 affirmation, where affirmation is 
 by law receivable, notwithstand- 
 ing such person may or shall be 
 interested, and notwithstanding 
 such person offered as a witness 
 may have been previously con- 
 victed of crime." 
 By 14 & 15 Vict. c. 99, s. 3, 
 nothing therein contained shall 
 render any person, who in any 
 criminal proceeding is charged 
 with the commission of any in- 
 dictable offence, or any offence 
 punishable on summary convic- 
 tion, competent or compellable to 
 give evidence for or against him- 
 self or herself, or shall render any 
 person compellable to answer any 
 question tending to criminate him- 
 self or. herself, or shall in any 
 criminal proceeding render any 
 husband competent or compel- 
 lable to give evidence for or 
 against his wife, or any wife com- 
 petent or compellable to give evi- 
 dence for or against her husband." 
 By 18 & 19 Vict. c. 126, s. 22, 
 reciting that it is expedient to 
 amend the law as to witnesses in 
 cases of wilful or malicious in- 
 
 " juries to property, it is enacted, 
 " that in all cases where any justice 
 " or justices of the peace have pow- 
 " er to order a sum of money to be 
 " forfeited and paid to the party 
 " aggrieved, as amends or compen- 
 " sation for any injury to property, 
 " real or personal, the right of such 
 '' party to receive the money so or- 
 " dered to be paid shall not be af- 
 " fected by such party having been 
 " examined as a witness in proof of 
 " the offence." 
 
 Witnesses for Prisoner.] — By 30 
 & 31 Vict. c. 35, ss. 1, 2, 3, " de- 
 " positions of witnesses for prisoner 
 " are to be taken, and witnesses 
 " bound by recognizances for pris- 
 " oner are to be allowed their ex- 
 " penses." 
 
 An information against a party, 
 under 1 & 2 Will. 4, c. 32, s. 23, 
 for unlawfully using snares for tak- 
 ing game, he not being authorized 
 so to do for want of a game certifi- 
 cate, is a criminal proceeding for 
 an offence punishable on summary 
 conviction within sect. 3 of the 14 
 & 15 Vict. c. 99, and therefore the 
 party charged is not rendered a 
 competent witness by that statute. 
 Gattdl V. Ireson, 4 Jur., N. S. 560 
 — Q. B. 
 
 Upon a proceeding under 9 Geo. 
 4, c. 61, s. 21, against an alehouse 
 keeper, for unlawfully and know- 
 ingly permitting divers persons of 
 notoriously bad character to assem- 
 ble and meet together in his house 
 and premises against the tenure of 
 his licence, such alehouse-keeper is 
 not a competent witness, and can- 
 not give evidence in his own behalf. 
 Parker y. Green, 2 B. & S. 299; 9 
 Cox, C. C. 169 ; 31 L. J., M. C. 
 133 ; 6 L. T., N. S. 46. 
 
 If two are guilty of a murder, 
 and one is indicted and the other 
 not, the party not indicted is a good 
 witness for the crown. Rex v. Tinck- 
 ler, 1 East, P. C. 354. 
 
 The persons who are supposed to 
 have been the seconds at a duel 
 
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566 
 
 EVIDENCE. 
 
 may refuse to give evidence on the 
 trial of tlie princifials. Rex v. Eng- 
 land, 2 Leach, C. C. 767. 
 
 But their testimony may be re- 
 ceived as the testimony of persons 
 admitted witnesses for the crown. 
 lb. 
 
 And if once sworn, they must dis- 
 close the whole truth, although they 
 may involve themselves in the guilt 
 of the transaction. lb. 
 
 The competency of a witness may 
 be tried by examining him on the 
 voir dire or by evidence aliunde. 
 Wakefield's case, 2 Lewin, C. C. 279 
 — HuUock. 
 
 A lunatic patient, who had been 
 in confinement in a lunatic asyluln, 
 and who laboured under the de- 
 lusion, both at the time of the trans- 
 action and of the trial, that he was 
 possessed by 20,000 spirits, but 
 whom the medical witness believed 
 to be capable of giving an account 
 of any transaction that happened 
 before his eyes, and who appeared 
 to understand the obligation of an 
 oath, and to believe in future re- 
 wards and punishments, was called 
 as a witness on a trial for man- 
 slaughter : — Held, that his testi- 
 mony was properly received in evi- 
 dence ; and that where a person un- 
 der an insane delusion is called as a 
 witness, it is for the judge, at the 
 time, to say whether he is compe- 
 tent to be a witness, and it is for the 
 jury to judge of the credit that is 
 to be given to his testimony. Reg. 
 V. SiM, 2 Den. C. C. 254 ; T. & 
 M. 582 ; 15 Jur. 470 ; 5 Cox, C. C. 
 259. 
 
 If upon his examination upon the 
 voir dire, he exhibits a knowledge 
 of the religious nature of an oath, 
 it is a ground of his admission. lb. 
 It is the duty of the judge pre- 
 siding at a trial to decide as to the 
 competency of a witness ; and if he 
 has admitted a witness to give evi- 
 dence, but upon proof of subsequent 
 facts affecting the capacity of the 
 witness and of observations of his 
 subsequent demeanour, the judge 
 
 changes his opinion as to his com- 
 petency, the judge may stop the 
 examination of the witness, strike 
 his evidence out of the notes, and 
 direct the jury to consider the case 
 exclusively with reference to the 
 evidence of -the other witnesses. 
 Reg. V. Whitehead, 1 L. R., C. C. 
 33 ; 35 L. J., M. C. 186 ; 14 W. R. 
 677 ; 14 L. T., N. S. 489. 
 
 A. and B. being indicted for 
 stealing, and C. for receiving, B. 
 pleaded guilty, and was tendered as 
 witness against A. and C. He was 
 objected to by the counsel for the 
 prisoners, as inadmissible: — Held, 
 an admissible witness at common 
 law. Reg. v. Hinks, 1 Den. C. C. 
 84 ; 2 C. & K. 462. 
 
 A., B., C. and D. were indicted 
 together. After plea, and before 
 they were given in charge to the 
 jury, the court allowed D. to be re- 
 moved from the dock, and exam- 
 ined as a witness against his asso- 
 ciates. Reg. V. Gerber, T. & M. 
 647 — Williams. 
 
 On an indictment for perjury al- 
 leged to have been committed at 
 the quarter sessions, the chairman 
 of the quarter sessions ought not to 
 be called upon to give evidence as 
 to what the defendant swore at the 
 quarter sessions. Reg. v. Oazard, 8 
 C. & P. 595— Patteson. 
 
 Where two prisoners are jointly 
 indicted for a felony and plead not 
 guilty, but only one is given in 
 charge to the jury, the other is an 
 admissible witness, although his plea 
 of not guilty remains on the record 
 undisposed of. Winsor v. Reg. (in 
 error), 1 L. R., Q. B. 390 ; 12 Jur., 
 N. S. 561; 35L.J.,M. C. 161; l4 
 W. R. 695 ; 14 L. T., K S. 567 — 
 Exch. Cham. 
 
 A. and B. were jointly charged 
 m the same indictment with break- 
 ing into a house and stealing goods. 
 A. pleaded guilty, and B. pleaded 
 not guilty, and was tried. A. 's plea 
 of guilty was recorded, but no sen- 
 tence had been passed on him, B. 
 wished to call A* as a witness for 
 
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COMPETENCY OP WITNESSES. 
 
 567 
 
 him :— Held, that he might do so. 
 Reg. V. George, Car. & M. Ill — 
 Coltman. 
 
 A prisoner who pleads guilty to 
 an indictment, and who has been 
 previously convicted of felony, is a 
 competent witness «.gainst other 
 prisoners charged in the same in- 
 dictment. Reg. V. Drury, 3 C. & 
 K. 190— Rolfe ; S. P., Reg. v. Arun- 
 del, 4 Cox, C. C. 260— Patteson. 
 
 A convict under sentence of death 
 is incapable of being called as a 
 witness. Reg. v. WM,11 Cox, C. 
 C. 133— Lush. 
 
 Two females being jointly indict- 
 ed at the assizes for felony, the jury, 
 not agreeing, was discharged by the 
 judge from giving a verdict. At a 
 subsequent assize, one was again put 
 on her trial, and the other admitted 
 to give evidence, without having 
 withdrawn her plea of not guilty, 
 and a nolle prosequi not having 
 been entered : — Held, that she was 
 a competent witness. Winsor v. 
 Reg. (in error), 7 B. & S. 490— 
 Exch. Cham. 
 
 Susband and Wife.] — By 14 & 
 15 Vict. c. 99, s. 3, " nothing there- 
 " in contained shall in any criminal 
 "proceeding render any husband 
 " competent or compellable to give 
 " evidence for or against his wife, 
 " or any wife competent or com- 
 " pellable to give evidence for or 
 " against her husband." 
 
 By 16 & 17 Vict. c. 83, s. 2, 
 " nothing therein contained shall 
 " render any husband competent or 
 " compellable to give evidence for 
 " or against his wife, or any wife 
 " competent or compellable to give 
 " evidence for or against her hus- 
 " band, in any criminal proceeding, 
 " or in any proceeding instituted in 
 " consequence of adultery." 
 
 By s. 3, "no husband shall be 
 " compellable to disclose any com- 
 " munication made to him by his 
 " wife during the marriage, and no 
 " wife shall be compellable to dis- 
 " close any communication made to 
 
 " her by her husband during the 
 " marriage." 
 
 In all cases of personal injuries 
 conimitted by the husband or wife 
 against each other, the injured party 
 is an admissible witness against the 
 other. Rex v. Jagger, 1 East, P. 
 C. 455— Buller; S. P., Reg. v. 
 Pearce, 9 C. & P. 667. 
 
 On an indictment for larceny the 
 wife of a receiver who is not indict- 
 ed caimot be compelled to give her 
 evidence against the prisoner. Bex 
 V. Ait, Car. C. L. 66— Macdonald 
 and I^awrence. 
 
 On an indictment against the 
 wife of W. S. and others, for a con- 
 spiracy in procuring W. S. to marry, 
 W. S. is not a competent witness 
 for the prosecution. Rex v. Serjeant, 
 R. & M. 352— Abbott. 
 
 The wife of one of several prison- 
 ers is inadmissible as a witness. 
 Rex V. Hbod, 1 M. C. C. 281 ; S. P., 
 Rex V. Smith, lb. 289. 
 
 Even to prove an alibi by the 
 other. Reg. v. Denslow, 2 Cox, C. 
 C. 230— Cresswell & Williams. 
 
 A. and B. were indicted for burg- 
 lary and stealing. A part of the 
 stolen property was found in the 
 house of each of them : — Held, that 
 the wife of A. was a competent wit- 
 ness to prove that she took to B.'s 
 house the stolen property that was 
 found there. Reg. v. Silk, 1 0. & 
 K. 494— Tindal. 
 
 A wife is not a competent witness 
 against her husband, charged under 
 the Vagrant Act (5 Geo. 4, c. 83, 
 s. 3), with neglecting to maintain 
 her, whereby she became chargeable 
 to the parish. Reeve v. Wood, 5 B. 
 & S. 364 ; 11 Jur., N. S. 201 ; 34 
 L. J., M. C. 15. 
 
 A reputed first wife cannot give 
 evidence in favour of her supposed 
 first husband. P«a<'«ca«e, 2Lewin, 
 C. C. Ill— Alderson. 
 
 One of two prisoners had married 
 his deceased wife's sister :— Held, 
 that she was a competent witness 
 against him upon his trial. Reg. v. 
 Toung, 5 Cox, C. C. 296— Erie. 
 
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568 
 
 EVIDENCE. 
 
 A witness for the prosecution 
 was examined on the part of the 
 prisoners on the voir dire, and de- 
 posed that she was married to one 
 of them : — ^Held, that she might be 
 further examined on the voir dire, 
 on the part of the prosecution, to 
 prove that the same prisoner had 
 been previously married to her sis- 
 ter. The vdtness stated, on such 
 farther examination, that she and 
 her sister, who was seven years old- 
 er than herself, had always lived to- 
 gether with their parents, and that 
 she always believed her to be her 
 sister: — Held, sufficient proof of the 
 relationship. Ih. 
 
 The prisoner was indicted for ob- 
 taining money from the trustees of 
 a savings bank, by falsely pretend- 
 ing that a document produced by 
 the wife of D. had been filled up by 
 D.'s authority ; and in another count 
 for conspiring with the wife of D. to 
 cheat the bank. D.'s wife presented 
 the document, which had been 
 fraudulently filled up at the instance 
 of the prisoner, and obtained the 
 money, and afterwards eloped with 
 the prisoner. D.'s evidence was 
 necessary to shew that he had given 
 no authority, but it was objected to 
 on the ground that it implicated his 
 wife : — Held, that D.'s evidence 
 was admissible, as the wife was not 
 charged upon the indictment. Reg. 
 V. Halliday, 8 Cox, C. C. 298. 
 
 7. Compelling Attendance. 
 
 Where a witness was subpoenaed 
 by a defendant indicted for a con- 
 spiracy, and before he was examined 
 requested to have his expenses paid, 
 and stated that no money was paid 
 to him at the time he was served, 
 he was obliged to give evidence, al- 
 though the defendant refused to 
 pay such expenses, and although 
 the indictment was removed by cer- 
 tiorari, and came down for trial at 
 the assizes as a civil record. Rex 
 V. Oooke, 1 C. & P. 322— Park. 
 
 A subpoena may be issued from 
 the crown office, requiring a witness 
 
 to attend at the assizes in the 
 country, to give evidence in support 
 of an intended prosecution for a fel- 
 ony; and the court will grant an 
 attachment against him for not at- 
 tending in obedience to the sub- 
 poena. Rex T. Ring, 8 T. R. 585. 
 In a criminal case, a person, who 
 is present in court, when called as a 
 witness, is bound to be sworn and 
 to give, his evidence, although he 
 has not been subpoenaed. Rex v. 
 Sadler, 4 C. & P. 218— Littledale : 
 S. R, Blackburn v. Hargreave, 2 
 Lewin, G. C. 259— HuUock. 
 
 8. Swearing. 
 By 24 & 25 Vict. c. 66, " reciting 
 " that it is expedient to grant relief 
 " to persons who may refuse or be 
 " unwilling, from alleged conscien- 
 " tious motives to be sworn in crim- 
 " inal proceedings, it is enacted, if 
 " any person called as a witness in 
 " any court of criminal jurisdiction 
 " in England or Ireland, or required 
 " or desiring to make an affidavit 
 " or deposition in the course of any 
 " criminal proceeding, shall refuse 
 " or be unwilling, from alleged con- 
 " scientious motives, to be swom, it 
 " shall be lawful for the court or 
 "judge, or other presiding officer 
 " or person qualified, to take affi- 
 " davits or depositions, upon being 
 " satisfied of the sincerity of such 
 " objections, to permit such person, 
 " instead of being sworn, to make 
 " his or her solemn affirmation or 
 " declaration in the words folio w- 
 " ing, that is to say : " I, A. B., do 
 " solemnly, sincerely, and truly af- 
 " fii-m and declare, that the taking 
 "of any oath is according to my 
 " religious belief unlawful, and I do 
 " also solemnly, sincerely, and truly 
 "affirm and declare," &c., which 
 " solemn affirmation and declaration 
 " shall be of the same force and ef- 
 " feet as if such person had taken 
 " an oath in the usual form." 
 
 And by s. 2, " if the declaration 
 " or affirmation is false, the party 
 " making same is liable to the pen- 
 
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SWEAEING. 
 
 569 
 
 " alties and punishment of peinurv " 
 
 By 32 & 33 Vict. c. 68, s. 4, "'if 
 " any person called t6 give evidence 
 ^1 m any court of justice, whether in 
 " a civil or criminal proceeding, 
 "shall object to take an oath, or 
 " shall be objected to as incompe- 
 " tent to take an oath, such person 
 " shall, if the presiding judge is sat- 
 " isfied that the taking of an oath 
 " would have no binding effect on 
 " his conscience, making the follow- 
 " ing promise and declaration : 
 
 " ' I solemnly promise and declare 
 " ' that the evidence given by me to 
 " ' the court shall be the truth, the 
 " ' whole truth, and nothing but the 
 "'truth': 
 
 " And any person who, having 
 " made such promise and declara- 
 " tion, shall wilfully and corruptly 
 " give false evidence, shall be liable 
 " to be indicted, tried and convicted 
 " for peijury as if he had taken an 
 " oath." 
 
 A witness cannot be sworn to 
 give evidence unless he has a reli- 
 gious belief. Maden v. Gatanach, 
 7 H. & isr. 360 ; 31 L. J., Exch. 
 118 ; 7 Jur,, N. S. 1107; 10 W. R. 
 112; 5L. T., N. S. 288. 
 
 No one can give evidence in a 
 Qourt of justice without being sworn, 
 unless he belongs to one of the 
 classes for whom special provision 
 has been made by the legislature. 
 Ih. 
 
 A Scotch covenanter may give 
 evidence in a criminal prosecution, 
 on being sworn accor(£ng to the 
 custom of his sect, without kissing 
 the book. Mildr one's case, 1 Leach, 
 C. C. 412. 
 
 So a Mahometan may be sworn 
 on the Alcoran in a prosecution for 
 a capital offence. Rex v. Morgan, 
 1 Leach, C. C. 54. 
 
 A person who has no notion of 
 eternity, or of a future state of re- 
 wards and punishments, cannot be 
 examined as a witness, but the trial 
 may be postponed until the witness 
 is instructed in the nature of this 
 Fjsn. Dig.— 43, 
 
 obligation. Reoc, v. White, 1 Leach, 
 C. C. 430. 
 
 An infant cannot, under any cir- 
 cumstances, be admitted to give ev- 
 idence, except upon oath. Rex, v. 
 Powell, 1 Leach, C. C. 110. 
 
 A witness, though deaf and dumb, 
 may be sworn and give evidence on 
 an indictment for felony, if intelli- 
 gence can be conveyed to, and re- 
 ceived by him, by means of signs 
 and tokens. RvMon's case, 1 Leach, 
 C. C. 408 ; S. P., Rex v. Jones, 1 
 Leach, C. C. 452, n. 
 
 "Where a bill for rape on a child 
 under the age of ten has been ig- 
 nored by the grand jury, in conse- 
 quence of the judge refusing to al- 
 low the child to be sworn as a wit- 
 ness, on the ground of her want of 
 knowledge of the obligation of an 
 oath, the prisoner was ordered to be 
 detained in custody until the child 
 could be properly instructed. Reg. 
 V. Baylis, 4 Cox, C. C. 23— Erie. 
 
 If on an indictment for felony, 
 after the jury has delivered a ver- 
 dict of guilty, it is discovered that 
 one of the witnesses for the prosecu- 
 tion has given his evidence without 
 having been previously sworn ; the 
 proper course to pursue is to direct 
 the jury to reconsider the case, dis- 
 missing from their minds the evi- 
 dence of that particular witness. 
 Reg. V. James, 6 Cox, C. C. 5. 
 
 Witnesses are sworn by the court 
 through the instrumentality of some 
 of its officers, and it is not material 
 whether the oath is administered by 
 the crier or clerk of the peace, so 
 that it is done in open court. Reg. 
 V. Tew, Dears. C. C. 429 ; 24 L. J., 
 M. C. 62. 
 
 Mode of swearing Chinese wit- 
 nesses. Reg. V. Enirehman, Car. & 
 M. 248— Gurney. 
 
 A Chinese, who is sworn accord- 
 ing to a form which is obligatory 
 upon his conscience, is a good wit- 
 ness in a court of law. lb. 
 
 A negro, who was called as a 
 witness, stated, before he was sworn, 
 
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570 
 
 EVIDENCE. 
 
 that he was a Christian, and had 
 heen baptized :— Held, that he 
 ought to be sworn, and that no fur- 
 ther question could be asked him 
 before he was so. Beg. v. Serva, 2 
 C. & K. 53— Piatt. 
 
 9. Ordering to leave Gourt. 
 
 Where a witness for a prosecution 
 remains in court after an order for 
 the witnesses to withdraw, the judge 
 may still allow him to be examined, 
 subject to observations on his con- 
 duct for disobeying the order. • Bex 
 V. Golley, M. & M. 329— Littledale 
 and Gaselee. 
 
 It is almost a matter of right for 
 a party to have a witness go out of 
 court while a legal argument is go- 
 ing on as to his evidence. Beg. v. 
 Murphy, 8 C. & P. 297— Coleridge. 
 
 The witnesses had been ordered 
 out of court,' but the attorney re- 
 mained in court : — Held, that he 
 could not be examined as a witness. 
 Rex V. Wehb, 3 Stark. L. of Ev. 
 1733— Best. 
 
 On a trial for arson, a witness for 
 the prisoner had left the court, on 
 an order being given for the witness- 
 es to go out of court : but he had 
 afterwards come into court again, 
 and heard a part of the evidence : 
 he was allowed to be examined. 
 Bex V. Brown, 4 C. & P. 588, n.— 
 Patteson. 
 
 But on the trial of an indictment 
 for perjury, all the witnesses were or- 
 dered out of court. After this or- 
 der a witness for the prosecution re- 
 mained in court : the judge would 
 not allow him to be examined.' Rex 
 V. Wylde, 6 C. & P. 380— Park. 
 
 10. Names on hack of Indictment. 
 
 Counsel for the prosecution is 
 bound to call all the witnesses on 
 the back of an indictment. He may 
 use his own discretion, but must 
 have the witnesses in attendance. 
 If the prisoner wishes to have a 
 witness called, when not called for 
 the prosecution, the witness becomes 
 his witness, and the counsel for the 
 
 prosecution will have the right to 
 reply. Beg. v. Oassidy, 1 F. & F. 
 79— Parke ;>^. P., Reg. v. Wood- 
 head, 2 C. & K. 520— Alderson. 
 
 Where there are witnesses on the 
 back of the indictment who have 
 not been called, the prisoner may 
 insist on their being put into the box 
 as the witnesses for the crown, in 
 order that they may be cross-exam- 
 ined in his behalf. Beg. v. Barky, 
 2 Cox, C. C. 191— Pollock. 
 
 The court has no power to oblige 
 a prosecutor to give to a defendant 
 the additions and places of residence 
 of witnesses named on the back of 
 an indictment. Beg. v. Gordon, 2 
 D., N. S. 417 ; 6 Jur. 996 ; 12 L. J., 
 M. C. 84— B. C— Patteson. 
 
 A prisoner indicted for felony is 
 not fentitled to a list of the names 
 and addresses of the witnesses on 
 the back of the indictment, but he 
 will be allowed to inspect the in- 
 dictment for the purpose of seeing 
 the names of such witnesses. Beg. 
 V. Lacey, 3 Cox, C. C. 517. 
 
 It is, in general, a matter entirely 
 within the discretion of counsel for 
 the prosecution, whether all the wit- 
 nesses at the back of the bill should 
 be called on behalf of the crown or 
 not; and although the judge has 
 the power to interfere, he will only 
 exercise it in extreme cases. Beg. 
 V. Edwards, 3 Cox, C. C. 82— Erie. 
 Although the counsel in a prose- 
 cution for felony is not bound to call 
 every witness whose name is on the 
 back of the indictment ; yet the 
 judge may do so, to allow the pris- 
 oner's counsel an opportunity of 
 cross-examining them. Rex v. 
 Simmonds, 1 C. & P. 84 — ^Hullock. 
 If counsel for the prosecution 
 calls a witness whose name is on 
 the back of the indictment, but does 
 not examine him, and such witness 
 is examined by the prisoner's coun- 
 sel, any question put by the prose- 
 cutor's counsel after this must be 
 considered as a re-examination, and 
 therefore the prosecutor's counsel 
 cannot ask anything that does not 
 
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EXAMINING WITNESSES. 
 
 571 
 
 arise ovxt of the previous examina- 
 tion by the prisoner's counsel. Rex 
 V. Beezdy, 4 C. & P. 220— Little- 
 dale. 
 
 Though the counsel for the prose- 
 cution may content himself with 
 putting into the box a witness whose 
 name is on the back of the bill, with- 
 out asking him any questions on the 
 part of the prosecution ; yet it is 
 better that he should be examined, 
 whether his evidence is favourable 
 to the prosecution or not, as the 
 only object to the investigation is 
 to discover the truth. Meg. v Bull, 
 9 C. & P. 22— Vaughan and WiL 
 liams. 
 
 . If the counsel for the prosecution 
 declines calling a witness whose 
 name is on the back of the indict- 
 ment, it is in the discretion of the 
 judge who tries the case, whether 
 the witness shall or shall not be call- 
 ed, for the prisoner's counsel to ex- 
 amine him before the prisoner is 
 called on for his defence. Rex v. 
 Bodle, 6 C, & P. 186— Gaselee. 
 
 If the witness is so called, the 
 judge will allow the examination of 
 the witness to assume the shape of 
 a cross-examination, but will not al- 
 low the prisoner's counsel to call 
 any witnesses to contradict him. Ih. 
 
 The calling of a witness, whose 
 name is on the back of the indict- 
 ment for the -other side, to cross-ex- 
 amine him, is by no means of course. 
 It is discretionary, even in felony, 
 but it is a discretion always exercis- 
 ed. Beg. V. Vincent, 9 C. & P. 91 
 — Alderson. 
 
 Where an indictment is tried at 
 nisi prius, the nisi prius record does 
 not shew what names were on the 
 back of the indictment. Bex v. 
 Smyth, 5 C. & P. 201— Tenterden. 
 
 11. Declarations in Articulo Mortis. 
 
 See page 375. 
 
 12. Examining and Oross-examining 
 
 Examining.] — A witness for the 
 crown cannot, in cross-examination, 
 
 be compelled to state through what 
 channel he made a disclosure to 
 government, either immediately or 
 mediately. Watson's ease, 2 Stark. 
 116. 
 
 A witness for the prosecution in 
 felony may be asked in cross-exam- 
 ination whether he has not stated 
 certain facts before the grand jury, 
 and the witness is bound to answer 
 that question. Reg. v. Gibson, Car. 
 & M. 672— Parke. 
 
 If a prisoner's counsel elicits, by 
 his cross-examination of the witness- 
 es for the prosecution, a statement 
 that the prisoner has borne a good 
 character, evidence may be given 
 of a previous conviction, just the 
 same as if witnesses to character 
 had been called on his behalf. Reg, 
 V. Gadhury, 8 C. & P. 676— Parke. 
 
 Where one prisoner calls a wit- 
 ness who gives evidence tending to 
 criminate another prisoner, the coun- 
 sel of the latter has a right to 
 cross-examine the witness, and ad- 
 dress the jury on his evidence. Reg. 
 V. Luch or Burdett, Dears. C. C. 
 431 ; 3 C. L. R. 440 ; 1 Jur., N. S. 
 119 ; 24 L. J., M. C. 63. 
 
 L., B. & C. were indicted for lar- 
 ceny, and were defended by sepa- 
 rate counsel. At the close of the 
 case for the prosecution C. was ac- 
 quitted by direction of the court, 
 and was afterwards called by L. as 
 his witness. C.'s evidence tended 
 to criminate B. : — Held, that B.'s 
 counsel was entitled to cross-exam- 
 ine the witness C, and reply upon 
 his evidence. lb. 
 
 Contradicting. ] — The sole witness 
 to the commission of an offence hav- 
 ing sworn that she did not know 
 the prisoner at the time, evidence 
 was admitted for the defence that 
 she had in fact known him for years. 
 Reg. V. Dennis, 3 F. & F. 502— 
 Byles. 
 
 Discrediting Oharacter of Adverse 
 Witness.]— By 28 & 29 Vict. c. 18, 
 8. 3, " in all criminal cases a party 
 
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572 
 
 EVIDENCE. 
 
 " producing a witness shall not be 
 " allowed to impeach his credit by 
 " general evidence of bad character ; 
 " but he may, in case the witness 
 " shall, in the opinion of the judge, 
 " prove adverse, contradict him by 
 " other evidence, or, by leave of the 
 "judge, prove that he has made at 
 " other times a statement inconsist- 
 " ent with his present testimony ; 
 " but before such last-mentioned 
 " proof can be given, the circum- 
 " stances of the supposed statement, 
 " sufficient to designate the particu- 
 " lar occasion, must be mentioned 
 "to the witness, and he must be 
 " asked whether or not he has made 
 " such statement. " 
 
 Gross-examining as to previous 
 Contradictory Statements of Adverse 
 Witness.] —Bj 28 & 29 Vict. c. 
 18, s. 4, " if a witness, upon cross- 
 " examination as to a former state- 
 " ment made by him relative to the 
 " subject-matter of the indictment 
 " or proceeding, and inconsistent 
 " with his present testimony, does 
 " not distinctly admit that he has 
 " made such statement, proof may 
 " be given that he did in fact make 
 " it ; but before such proof can be 
 " given, the circumstances of the 
 " supposed statement, sufficient to 
 " designate the particular occasion, 
 " must be mentioned to the witness, 
 " and he must be asked whether or 
 " not he has made such statement." 
 
 And by s. 5, " a witness may be 
 " cross-examined as to previous 
 " statements made by him in writ- 
 " ing, or reduced into writing, rela- 
 " tive to the subject-matter of the 
 " indictment or proceeding, without 
 " such writing being shewn to him ; 
 " but if it is intended to contradict 
 " such witness by the writing, his 
 " attention must, before such con- 
 " tradictory, proof can be given, be 
 " called to those parts of the writ- 
 " ing which are to be used for the 
 "purpose of so contradicting him : 
 " provided always, that it shall be 
 " competent for the judge, at any 
 
 time during the trial, to require 
 " the production of the writing for 
 " his inspection, and he may there- 
 " upon make such use of it for the 
 " purposes of the trial as he may 
 " think fit. " 
 
 GdUing Witnesses after Close of 
 Case.] — ^After the cases for the pros- 
 ecution and prisoner are closed, the 
 judge will not, at the suggestion of 
 the counsel for the prosecution, ex- 
 amine a witness not before called. 
 Beg. V. Haynes, 1 P. & F. 666— 
 Bramwell. 
 
 Impeachment of Credit of Witness- 
 es.] — In order to impeach the cred- 
 it of witnesses for the prosecution, 
 the prisoner may call witnesses to 
 prove that, from their knowledge 
 of the general reputation of the wit- 
 nesses for the prosecution, they 
 would not beUeve them upon their 
 oaths. Eeg. v. Brown, 36 L. J., M. 
 0.59; 1 L. R.,C. 0.70; 16 L. T., 
 N. S. 364 ; 15 W. R. 795 ; 10 Cox, 
 0. C. 453. 
 
 13. Declining to answer. 
 
 If a witness claims the protection 
 of the court, on the ground that his 
 answer would tend to criminate him- 
 self, and there appears reasonable 
 ground to believe that it would do 
 so, he is not compellable to answer ; 
 and if obliged- to answer notwith- 
 standing, what he says must be con- 
 sidered to have been obtained by 
 compulsion, and cannot be given af- 
 terwards in evidence against him. 
 Reg V. Garhett, 2 C. & K. 474 ; 1 
 Den. 0. 0. 236 ; 2 Cox, 0. C. 448. 
 
 It makes no difference in the 
 right of the witness to protection, 
 that he had before answered in part, 
 as he is entitled to claim the privi- 
 lege at any stage of the inquiry ; 
 and no answer forced from him by 
 the presiding judge (after such a 
 claim) can be afterwards given in 
 evidence against him. Ih. 
 
 A witness is not only not bound 
 to answer that which will criminate 
 
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EVIDENCE OF CHARACTER. 
 
 573 
 
 him, but he is not bound to answer 
 anything that tends to criminate 
 him. In a prosecution for libel, a 
 witness is not bound to answer 
 ■whether he has wi-itten a particular 
 paragraph in a newspaper, but he 
 must answer whether he knew 
 whose writing it was, but he is not 
 bound to name the person whose 
 writing he knew it to be. JRex v. 
 Slaney, 5 C. & P. 213— Tenterden. 
 
 A Roman Catholic priest, called 
 as a witness, is bound to answer 
 the question from whom he receiv^ed 
 the property (a watch), alleged to 
 be stolen, although delivered to him 
 by a party in connexion with the con- 
 fessional. Meg. V. Hay, 2 F. & F. 
 4^Hill. 
 
 If a witness objects to answer 
 questions on the ground that they 
 tend to criminate him, the counsel 
 on the opposite side cannot argue 
 in support of the witness's objection. 
 Bex V. Adey, 1 M. & Rob. 94. 
 
 On the trial of an information 
 for bribery at a parUamentary elec- 
 tion, filed by the attorney-general, 
 in pursuance of a resolution of the 
 House of Commons, a person, alleg- 
 ed in the indictment to have been 
 bribed, was called as a witness ; he 
 refused to answer any question, on 
 the ground that the answer would 
 tend to eliminate him. A pardon 
 under the great seal was then hand- 
 ed to the witness, but he still refus- 
 ed to answer, upon which the judge 
 compelled him to answer, and on 
 his evidence the defendant was con- 
 victed: — Held, that the pardon 
 took away the privilege of the wit- 
 ness so far as any risk of prosecu- 
 tion at the suit of the crown was 
 concerned; and that, though the 
 witness might still be liable to an 
 impeachment by the House of Com- 
 mons, notwithstanding the pardon, 
 by reason of the 12 & 13 Will. 3, c. 
 2, yet that was so unlikely to hap- 
 pen that the witness could not be 
 said to be in any real danger, and 
 he was therefore rightly compelled 
 to answer. Meg. v. Boyes, 1 B. & S. 
 
 311 ; 9 Cox, C. C. 32 ; 30 L. J., 
 Q. B. 301; 7 Jur., N. S. 1158; 2 
 F. & F. 157 ; 9 W. R. 690 ; 5 L. 
 
 T.,N. S. 147. 
 
 To entitle a witness to the privi- 
 lege of not answering a question as 
 tending to ci-iminate him, the court 
 must see, from the circumstances of 
 the case and the nature of the evi- 
 dence which the witness is called to 
 give, that there is reasonable gi-ound 
 to apprehend danger to the witness 
 from his being compelled to answer. 
 If the fact of the witness being in 
 danger i* once made to appear, 
 great latitude should be allowed to 
 him in judging of the effect of any 
 particular question. The danger to 
 be apprehended must be real and ap- 
 preciable, with reference to the or- 
 dinary operation of law, in the ordi- 
 nary course of things, and not a dan- 
 ger of an imaginary character, hav- 
 ing reference to some barely possi- 
 ble contingency. Ih. 
 
 14. Evidence of Character. 
 
 If evidence of good character is 
 given on behalf of a prisoner, evi- 
 dence of bad character may be giv- 
 en in reply. Meg. v. Mowton, L. & 
 C. 520 ; 10 Cox, C. C. 25 ; H Jur., 
 N". S. 325 ; 34 L. J., M. C. 57 ; 13 
 W. R. 436 ; 11 L. T., K S. 745. 
 
 In either case the evidence must 
 be confined to the prisoner's general 
 reputation ; and the individual opin- 
 ion of the witness as to his disposi- 
 tion founded upon his own experi- 
 ence and observation, is inadmissi- 
 ble. Ih. 
 
 Evidence of particular facts can- 
 not be given upon the question of 
 character. lb. 
 
 Evidence of character must be 
 evidence of general reputation only, 
 and a witness's individual opinion 
 respecting the character and dispo- 
 sition of the prisoner, with reference 
 to the charge, is inadmissible. Ih. 
 
 A man was indicted for an inde- 
 cent assault, and upon the trial call- 
 ed witnesses, who gave him a good 
 character as a moral and well-con- 
 
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574 
 
 EVTDElSrCE. 
 
 ducted man. A witness was then 
 called by the prosecution, who was 
 asked " What is the prisoner's gen- 
 eral character for decency and mo- 
 rality ? " and in answer said, " I 
 know nothing of the neighbourhood's 
 opinion, because I was only a boy at 
 school when I knew him ; but my 
 opinion, and the opinion of my 
 brothers, who were also pupils of 
 his, is, that his character is that of a 
 man capable of the grossest inde- 
 cency and the most flagrant immo- 
 rality " : — Held, that the answer 
 was not admissible in evidence. Ih. 
 
 Upon an indictment for assault- 
 ing a peace officer in the execution 
 of his duty, where the assault was 
 committed by the prisoner in resist- 
 ing his arrest by the officer on a 
 charge of felony, the officer cannot, 
 upon his examination in chief, be 
 questioned as to Ms knowledge of 
 the prisoner's character for the pur- 
 pose of shewing that he had reason- 
 able cause to suspect the prisoner of 
 having committed felony for which 
 he was arrested. Reg. v. Tuherfield, 
 L. & C. 495 ; 10 Cox, C. C. 1 ; 34 
 L. J., M.C.20; 10Jur.,N.S.llll; 
 13 W. R. 102 ; 11 L. T., N. S. 385. 
 
 The proper course under such cir- 
 cumstances is, to ask the officer gen- 
 erally whether he had reason to sus- 
 pect the prisoner, leaving the prison- 
 er's counsel to inquire into the 
 grounds of suspicion, if he thinks 
 fit to do so. lb. 
 
 In order to impeach the charac- 
 ter of a witness for veracity, wit- 
 nesses may be called to prove that 
 his general reputation is such that 
 they would not believe him upon 
 oath. Reg. v. Brown, 1 L. R., C. 
 C. 70 ; 36 L. J., M. C. 5 ; 10 Cox, 
 C. C. 453. 
 
 It is not essential that witnesses, 
 who state that they would not be- 
 lieve another person on his oath, 
 should have ever heard such person 
 give evidence upon oath; as the 
 real question is, whether the witness- 
 es have such a knowledge of the 
 person's character and conduct as 
 
 enables them conscientiously to say 
 that it is imposfible to place any re- 
 liance on any statement that such 
 person may make. Rex v. Bispham, 
 
 4 C. & P. 392— Garrow and Parke. 
 It is not usual to cross-examine 
 
 witnesses to character except the 
 counsel cross-examining has some 
 distinct charge on which to cross- 
 examine them. Rex v. HbdgMss, 7 
 C. & P. 298— Alderson. 
 
 In general, witnesses to character 
 cannot be examined after verdict 
 and before sentence, where the de- 
 fendant' might have examined them 
 upon the trial. Reff. v. Mullins, 3 
 Cox, C. C. 526. 
 
 15. Evidence of Identity. 
 
 A witness, called to prove that 
 he had seen a prisoner at a particu- 
 lar spot at a certain time, added 
 that he had since seen a number of 
 men in gaol, and had pointed out 
 one : — Held, that the following was 
 a proper form of question to put to 
 the witness — " Who did you point 
 him out as being ? " Reff. v. Black- 
 bum, 6 Cox, C. C. 333— Talfourd. 
 
 A person indicted with others 
 for an offence, but against whom 
 the bill has been thrown out, may, 
 if he is in custody at the time of the 
 trial of the others, be placed at the 
 bar to be identified as one who was 
 in their company. Rex v. Deering, 
 
 5 C. & P. 165— Garrow. 
 
 It becoming necessary, on the 
 part of the crown, to identify three 
 other prisoners, charged in the same 
 indictment with the party tried, 
 held, that the counsel for the pros- 
 ecution might ask in the most di- 
 rect terms whether any of the pris- 
 oners was the person meant by the 
 witness. WaUon^ case, 2 Stark. 
 116. 
 
 16. Privileged Communiecttions. 
 
 A prisoner was in custody on a 
 charge of forgery, and was not al- 
 lowed even to see his wife ; he 
 wrote to a friend " to ask Mr. G., 
 or some other solicitor, whether the 
 
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PRIVILEGED COMMUNICATIONS. 
 
 575 
 
 punishment was the same whether 
 the names forged were those of real 
 or fictitious persons. " Mr. G. was 
 not the prisoner's attorney, though 
 he was an attorney : — Held, that 
 this was not a privileged communi- 
 cation. Eex V. Brewer, 6 C. & P. 
 363— Park. 
 
 H., who was tried for forging the 
 will of S. J., had sent the forged 
 will to his attorney, Mr. M., with 
 some deeds of S. J., ostensibly for 
 the purpose of asking his advice, 
 but really that he might find the 
 will and act on it. It was after- 
 wards produced by Mr. M. before 
 the magistrates, when H. was 
 charged before them of forging 
 it. At the trial of H. for the forg- 
 ery Mr. M. was called to produce 
 the will, which he did, without any 
 objection being taken. The officer 
 of the court was proceeding to read 
 it, when the prisoner's counsel ob- 
 jected to the reading of it, as being 
 privileged in the hands of Mr. M. 
 The judge directed it to be read in 
 evidence : — Held, that it was prop- 
 erly so read,- it not having been put 
 into the hands of Mr. M. in pro- 
 fessional confidence, even if that 
 would have made a diflerence. 
 Beq. v. Hayward, 2 C. & K. 234 ; 
 2 Cox, C. C. 23— C. C. R. 
 
 The wife of A. went to B., an 
 attorney, and produced a forged 
 will to him, and asked him to ad- 
 vance money to A. on the property 
 mentioned in it. B. was not then 
 the attorney of A., or in any way 
 acting as his solicitor. A.'s wife 
 left the forged will with B., who 
 made a copy of it. A. afterwards 
 called on B., who told all that had 
 occurred and returned him the 
 forged will, declining to advance 
 any money: — Held, that the con- 
 versation between A.'s wife and B. 
 was not a privileged communica- 
 tion; and that on the trial of A. 
 for forgery, evidence might be giv- 
 en of it ; and also, that the copy of 
 the forged will made by B. might 
 
 be given in evidence, notice having 
 been given to A. to produce the 
 original. JReg, v. Farley, 2 C. & 
 K. 313 ; 1 Den. C. C. 197 ; 2 Cox, 
 C. C. 82. 
 
 Indictment for forging the will 
 of W. T., first, with intent to de- 
 fraud the heir-at-law of the said 
 W. T. ; second, with intent to de- 
 fraud some person or persons un- 
 known. QuoBre, whether (under 
 the circumstances) a valid objec- 
 tion could be taken to the will 
 being produced in evidence by an 
 attorney, at the trial, on the ground 
 of its being privileged communica- 
 tion ? Reg. V. Tylney, 1 Den. C. 
 C. 319 ; 18 L. J., M. C. 38. 
 
 A prisoner was indicted for forg- 
 ing a will. The forged instrument 
 had been given by the prisoner to 
 his attorney, ostensibly for profes- 
 sional purposes, but, in the opinion 
 of the judge, with some very dif- 
 ferent object. On objection that 
 it was a privileged communication, 
 and therefore could not be read : — 
 Held, invalid. Reg. v. Jones, 1 
 Den. C. C. 166. 
 
 The real prosecutor had commu- 
 nications with her attorney in refer- 
 ence to certain dealings with the 
 prisoner. The attorney was called 
 as a witness for the prosecution : — 
 Held, that letters written by the 
 client to her attorney coiild not be 
 put in by the prisoner's counsel. 
 Reg. V. Leverson, 11 Cox, C. C. 
 152. 
 
 Held, that the prosecutrix and 
 her attorney might be cross-exam- 
 ined in reference to any privileged 
 communications as to which they 
 had given answers to questions ad- 
 dressed to them by the counsel for 
 the prosecution, but not in respect 
 to such matters about which the 
 attorney had volunteered informa- 
 tion unasked. lb. 
 
 Held, also, that matters which 
 transpired during interviews at 
 which the prisoner was present 
 were not privileged. lb. 
 
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576 
 
 EVIDElSrCE. 
 
 Mode of taking Evidence of Wit- 
 nesses at Trial] — A prisoner for 
 felony was tried, but the jury was 
 discharged, owing to being unable 
 to agree. On being put on trial be- 
 fore a second jury, the judge, at 
 the prisoner's request, instead of 
 having the witnesses examined, 
 simply called and swore them, and 
 read over his notes, allowing liberty 
 to examine and cross-examine each 
 witness thereafter : — Held, that this 
 was an irregular practice, whether 
 the prisoner assented to it or not. 
 Beg. V. Bertramd, 16 L. T., N. S. 
 752 ; 1 L. R., P. C. 520 ; 36 L. J., 
 P. C. 51 ; 16 W. R. 9 ; 10 Cox, C. 
 C. 618. 
 
 17. Evidence of other similar Of- 
 fences. 
 
 It cannot be shewn on the trial 
 of an indictment that the prisoner 
 has a general disposition to commit 
 the same kind of offence as that 
 charged against him ; therefore an 
 admission by the prisoner, charged 
 with an infamous crime, that he 
 had committed the same offence at 
 another time, and with another 
 person, and that he had a tendency 
 to such practices, was rejected. 
 Rex V. Cole, Phil. Evid. 170. 
 
 But it is no objection to evidence 
 on an indictment for felony, that it 
 also goes to shew the prisoner 
 guilty of another felony. Bex v. 
 Mo&re, 2 C. & P. 235 — Burrough. 
 
 In answer to an alibi set up on a 
 trial for felony, the prosecutor may 
 shew the circumstances under which 
 the prisoner was seen near the spot 
 in question; though those circum- 
 stances involve the commission of 
 another felony by him. Beg. v. 
 Briggs, 2 M. & Rob. 199 —Alder- 
 son. 
 
 Where several felonies are so 
 connected together as to form part 
 of one entire transaction, evidence 
 of them all may be given in order 
 to prove a party indicted guilty of 
 one. Bex v. Ellis, 6 B. & C. 145 ; 
 9 D. & R. 174. 
 
 Upon a trial for felony, other 
 felonies, which have a tendency to 
 establish the scienter, may be given 
 in evidence for that purpose. Beg. 
 V. Weeks, L. & C. 18. 
 
 On an indictment for arson in 
 setting fire to a rick, the property 
 of A., evidence may be given of 
 the prisoner's presence and demean- 
 our at fires of other ricks, the prop- 
 erty respectively of B. and C, oc- 
 curring the same night, although 
 those fires are the subject of other 
 indictments against the piisoner, 
 such evidence being important to 
 explain his movements and general 
 conduct before and after the fire of 
 A.'s rick ; but evidence is not ad- 
 missible of threats, statements or 
 particular acts pointing alone to 
 the other indictments, and not 
 tending to implicate or explain the 
 conduct of the prisoner in refer- 
 ence to that fire. Beg. v. Taylor, 
 5 Cox, C. C. 138— Patteson. 
 
 Evidence of another felony is ad- 
 missible to shew the animus of the 
 prisoner, or if the act done was 
 wilful or accidental. A. was in- 
 dicted for setting fire to a rick on 
 the 29th of March by discharging 
 a gun close to it. Evidence was 
 admitted of his having been seen 
 near the same rick with a gun on 
 the 28th, when it had been also set 
 on fire. Beg. v. Dosset, 2 Cox, C. 
 C. 243-Maule. 
 
 Upon a trial for breaking into a 
 booking-office of a railway station, 
 evidence was admitted that the 
 prisoners had, on the same night, 
 broken into three other booking- 
 offices belonging to three other sta- 
 tions on the same railway, the four 
 cases being all mixed up together. 
 Beg. V. Golden, 3 F. & P. 833— 
 Bramwell. See Beg. v. Bearden, 
 4 P. & F. 76— Willes. 
 
 18. Brevioits Conviction. 
 
 (24 t6 25 Vict. c. 96, s. 116 ; 24 <& 
 25 Vict. c. 99, s. 37.) 
 
 Before these /Statutes. — C, with 
 
 Digitized by Microsoft® 
 
PREVIOUS CONVICTION. 
 
 577 
 
 others, was charged in the first 
 count of an indictment with lar- 
 ceny from the person. The indict- 
 ment contained tw^o other counts, 
 each charging a previous convic- 
 tion against C.: — Held, that any 
 number of previous convictions may 
 be alleged in the same indictment, 
 and, if necessary, proved against 
 the prisoner. Reg. v. Clark, Dears. 
 C. C. 198 ; 3 C. & K. 367 ; 17 Jur. 
 582 ; 22 L. J., M. C. 135 ; 6 Cox, 
 C. C. 210. 
 
 On a trial for felony after a pre- 
 vious conviction the prisoner is to 
 be arraigned on the wliole indict- 
 ment, and the jury is to have the 
 new charge only stated to them, 
 and if no evidence to character is 
 given, nothing is to be said to the 
 jury of the previous conviction till 
 they have given their verdict on 
 the new charge, and then, without 
 being re-sworn, the jury is to hear 
 the statement of the previous con- 
 viction, and the proof of it. Reg. 
 V. ShvUlewwth, 3 C. & K. 375 ; T. 
 & M. 626 ; 2 Den. C. C. 351 ; 15 
 Jur. 1066 ; 21 L. J., M. C. 36 ; 5 
 Cox, C. C. 369. 
 
 On a trial for a felony after a 
 previous conviction if the prisoner's 
 counsel obtains evidence of good 
 character on cross-examination, this 
 entitles the prosecutor to go into 
 evidence of the previous conviction 
 before the jury finds a verdict on 
 the new charge, the same as if the 
 prisoner had obtained evidence of 
 good character by calling a witness. 
 Req. V. Shrimpton, 3 C. & K. 373 ; 
 T.& M. 628; 2 Den. C. C. 319; 
 21 L. J., M. C. 37 ; 5 Cox, C. C. 
 387. 
 
 It is no objection to an indict- 
 ment that a previous conviction is 
 stated at the beginning of it, by 
 way of introductory averment, in- 
 stead of at the end, in the form of 
 a separate count. Reg. v. Hilton, 
 Beli:C.C.20; 5 Jur., N S ^7 
 28 L. J., M. C. 28 ; 7 W. R. 59 ; 8 
 Cox, C. C. 87. 
 
 If, to prevent prejudice, the pn& 
 
 oner, at the request of his counsel, 
 has not been arraigned on the 
 charge of the previous conviction 
 before the verdict has been given 
 on the subsequent charge, he may 
 afterwards be arraigned thereon, 
 and the jury may afterwards in- 
 quire respecting it. lb. 
 
 15 Vict. c. 
 in any pro- 
 
 Proof.y-By 14 & 
 99, s. 13, "whenever 
 " ceeding whatever it may be neo- 
 " essary to prove the trial and con- 
 " viction or acquittal of any person 
 " charged with any indictable of- 
 " fence, it shall not be necessary to 
 " produce the record of the oon- 
 " viction or acquittal of such per- 
 " son, or a copy thereof, but it shall 
 " be sufficient that it be certified or 
 " purport to be certified under the 
 " hand of the clerk of the court or 
 " other 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 other officer, that the 
 " paper produced is a copy of the 
 " record of the indictment, trial, 
 " conviction and judgment or ac- 
 " quittal, as the case may be, omit- 
 " ting formal parts thereof" 
 
 A previous summary conviction, 
 which, under the above statute, is 
 required to be proved by a certified 
 copy, also requires proof of the 
 prisoner's identity as under 7 & 8 
 Geo. 4, c. 28, s. 11, which remains 
 in this respect as it stood before. 
 The identity may be proved by 
 evidence from which a jury may 
 draw the conclusions that he is the 
 same person named in the cei-tif- 
 icate, although no witness saw him 
 convicted at his trial. Reg. v. 
 Leng, 1 F. & F. 77— Byles. 
 
 In order to prove the identity ot 
 a prisoner who is named in a certif- 
 icate of a previous conviction, it 
 is not necessary to call a witness 
 who was present at the trial to 
 which the certificate relates, it is 
 sufficient to prove that the prisoner 
 is the person who underwent the 
 
 Fish. Dig.— 44. Digitized by Microsoft® 
 
578 
 
 EVIDENCE. 
 
 sentence mentioned in the oertiii- 
 cate. Beg. v. Grafts, 9 C. & P. 
 219— Gurney. 
 
 It is sufficient evidence of a pre- 
 vious summary conviction, to shew 
 that the certificate of conviction 
 and the warrant agree, and that 
 the prisoner was received into cus- 
 tody under the warrant, without 
 further proving identity. Meg. v. 
 Levy, 8 Cox, C. C. 73— Byles. 
 
 By 28 & 29 Vict. c. 18, s. 8, " in 
 " any criminal proceeding a witness 
 " may be questioned as to whether 
 " he has been convicted of any 
 " felony or misdemeanor, and, up- 
 " on being so questioned, if he 
 " either denies or does not admit 
 " the fact, or refuses to answer, it 
 " shall be lawful for the cross-ex- 
 " amining party to prove such con- 
 " viction ; and a certificate con- 
 ■" taining the substance and efiect 
 " only (omitting the formal part) of 
 " the indictment and conviction for 
 " such offence, purporting to be 
 " signed by the clerk of the court 
 •" or other officer having the cus- 
 " tody of the records of the court 
 " where the offender was convict- 
 " ed, or by the deputy of such clerk 
 " or officer (for which certificate a 
 " fee of 5s. and no more shall be 
 "demanded or taken), shall, upon 
 " proof of identity of the person, 
 " be sufficient evidence of the said 
 " conviction, without proof of the 
 " signature or official character of 
 " the person a,ppearing to have 
 " signed the same." 
 
 The proper proof that a prisoner 
 was in lawful custody, under a sen- 
 tence of imprisonment passed at the 
 assizes, is, by the proof of the rec- 
 ord of his conviction ; and neither 
 the production of the calendar of 
 •the sentences signed by the clerk 
 of the assize, and by him delivered 
 to the governor of the prison, nor 
 the evidence of a person who heard 
 sentence passed, is sufficient for this 
 purpose. Reg. v. Bourdon, 2 C. & 
 K. 366— Maule. 
 
 A certificate of a conviction, 
 
 made at the quarter sessions for a 
 borough, purporting to be signed 
 by a person described therein as 
 deputy clerk of the peace of the 
 borough, and having the custody 
 of the records of the quarter ses- 
 sions, is admissible in evidence, as 
 purporting to be made by an officer 
 having the custody of the records of 
 the court where the conviction was 
 made, within 5 Geo 4, c. 84, s. 24, 
 although the 5 & 6 Will. 4, c. 76, 
 gave no power to appoint a deputy 
 clerk of the peace for a borough 
 within that act. Reg. v. Parsons, 
 1 L. R., C. C. 24; 12 Jur., N". S.. 
 436 ; 35 L. J., M. C. 167 ; 14 W. 
 R. 662 ; 14 L. T., K S. 450. 
 
 A person de facto filling an office, 
 carrying with it the custody of the 
 records of the court, may lawfully 
 give such a certificate, although he 
 may not hold such office de jure. 
 lb. — Bramwell. 
 
 19. Maps or Plans. 
 
 A map or a plan prepared for 
 the purpose of a trial ought not to 
 contain any reference to transac- 
 tions and occurrences which are the 
 subject-matter of the investigation 
 before the court, and not existing 
 when the survey was made ; and if 
 it does, and the objection is taken, 
 the court will not allow the jury to 
 look at it. Reg. v. Mitchell, 6 
 Cox, C. C. 82— WiUiams. 
 
 20. Letters. 
 
 The post-office marks, in town or 
 country, proved to be such, are 
 evidence that the letters on which 
 they are were in the office to which 
 those marks belong at the time 
 those marks specify. Rex v. Plum- 
 er, R. & R. C. C. 264. 
 
 Though a letter found upon a 
 prisoner may be read, it is no evi- 
 dence of the facts it states, they 
 must be proved by other evidence. 
 lb. 
 
 Letters which have never been 
 in the custody of a prisoner, or 
 any way adopted by him (being in- 
 
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NOTICE TO PRODUCE. 
 
 579 
 
 tercepted at the post-office), al- 
 though directed to him, cannot be 
 read m evidence against him. Bex 
 v. Hevey, I Leach, C. C. 232, 235. 
 
 A letter of instruction from the 
 lords of the Treasury, signed by 
 three lords of the Treasury, is ad- 
 missible upon proof of the band- 
 writing of the three persons whose 
 names were subscribed to it, with- 
 out producing the commission. Hex 
 v. Jones, 2 Camp. 131 — EUenbor- 
 ough. 
 
 If a letter, written by one of sev- 
 eral prisoners, is read in evidence, 
 and in this letter the names of the 
 other prisoners are mentioned, these 
 names must not be omitted in the 
 reading of the letter, but the judge 
 will tell the jury to pay no atten- 
 tion to the letter, except so far as 
 it affects the writer. Rex v. Fletch- 
 er, 4 C. & P. 250— Littledale. 
 
 21. Proof of Handwriting. 
 
 A prisoner's handwriting may be 
 proved by witnesses who have seen 
 him write. Rex v. JSensey, 2 Ld. 
 Ken. 366 ; 1 Burr. 642. 
 
 A person who has received let- 
 ters purporting to come from a par- 
 ty, and has acted on those letters, 
 may prove the handwriting of such 
 party. Rex v. Slaney, 5 C. & P. 
 213— Tenterden. 
 
 A policeman who has only once 
 seen a prisoner write, and that since 
 suspicion has been excited against 
 him with reference to the charge 
 upon which he is tried, and upon an 
 opportunity taken by the policeman 
 vrith the view of being able to speak 
 to his handwriting, is not an admis- 
 sible witness to prove that a docu- 
 ment, the foundation of the charge 
 against the prisoner, is in his hand- 
 writing. Reg. V. Crouch, 4 Cox, 
 C. C. 163— Maule. 
 
 By 28 & 29 Vict. c. 18, s. 8, " in 
 " all criminal cases comparison of a 
 " disputed writing with any writing, 
 " proved to the satisfaction of the 
 "judge to be genuine, shall be per- 
 " mitted to be made by witnesses ; 
 
 " and such wi-itings, and the evi- 
 " dence of witnesses respecting the 
 " same, may be submitted to the 
 " court and jury as evidence of the 
 " genuineness or otherwise of the 
 " writing in dispute." 
 
 22. Proof of Bomments hy Attest- 
 ing Witnesses. 
 By 28 & 29 Vict. c. 18, s. 7, " in 
 " all criminal cases it shall not be 
 " necessary to prove by the attest- 
 " ing witness any instrument to the 
 "validity of which attestation is 
 " not requisite, and such instrument 
 " may be proved as if there had 
 " been no attesting witness thereto." 
 
 23. Notice to Produce. 
 
 Where notice to produce a poUcy 
 of insurance was given to the pris- 
 oner in the middle of the day preced- 
 ing the trial, the prisoner's residence 
 being thirty miles from the assize 
 town : — Held, that secondary evi- 
 dence of the policy could not be 
 given. Reg. v. Kitson, Dears. C. C. 
 187 ; 17 Jur. 422 ; 22 L. J., M. C. 
 118; 6Cox, C. C. 159. 
 
 Upon an indictment for arson, 
 with intent to defraud an insurance 
 society, the nature of the proceed- 
 ings does not give notice to the 
 prisoner to produce the policy, so 
 as to dispense jvith actual notice to 
 produce. lb. 
 
 Service of notice to produce on 
 an attorney who had served a notice 
 on behalf of the prisoner, as to an 
 application to bail him upon the 
 charge, is sufficent. Reg. v. Boucher, 
 1 F. & F. 486— Martin. 
 
 A notice to produce a document 
 delivered to an attorney, suggested 
 to be the prisoner's attorney, is (in 
 the absence of evidence that he was 
 so) not a valid notice, so as to ena- 
 ble secondary evidence to be given ; 
 and the attorney was not allowed to 
 be asked whether he had shewn the 
 notice to his client. Reg. v. Down- 
 ham, 1 F. & F. 386— Pollock. 
 
 An indictment alleged that the 
 prisoner, being in the employ of the 
 
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580 
 
 VERDICT. 
 
 Post-ofBce, stole a post -letter, to 
 wit, a post-letter directed and ad- 
 dressed as I'ullows, that is to say 
 (setting out the address), which 
 contained property. At the trial, 
 a witness having deposed that he 
 empfoyed a man to post a letter 
 containing the property in question : 
 — Held, that he might be asked 
 how that letter was addressed, al- 
 though no notice to produce the let- 
 ter had been given. Rey. v. Glube, 
 3 Jur., N. S. 698— Pollock. 
 
 Where a trial has been postponed 
 from one session to another, a notice 
 to produce served on the prisoner in 
 time for the first session is available 
 for the subsequent one without any 
 fresh service, and service on the 
 prisoner in gaol is sufficient. Bey. 
 V. JRohinson, 5 Cox, C. C. 183. 
 
 24. Prodv/Aion and Inspection of 
 Documents. 
 
 On an indictment in the Central 
 Criminal Court, for obtaining mon- 
 ey by false pretence, that a parcel 
 contained certain letters of the pros- 
 ecutrix to the prisoner, which he 
 promised, for a valuable considera- 
 tion, to give up, and which had 
 been seized under a search warrant, 
 a judge on the rota for the session, 
 after the session had opened, made 
 an order in favor of the prisoner for 
 an inspection of the letters. Reg. v. 
 Golucci, 3 F. & F. 103. 
 
 A solicitor for a prisoner is bound 
 to produce a document, when the 
 prisoner is charged with an ofience 
 in respect of such document. Reg. 
 V. Brown, 9 Cox, C. C. 281 — ' 
 Willis. 
 
 If on the trial of an indictment 
 for publishing an obscene snufi"-box, 
 a witness proves that the defendant 
 exhibited to him the box produced 
 on the trial, or a box exactly sim- 
 ilar, this is not sufficient, if the wit- 
 ness cannot identify the very box 
 exhibited to him. Rex v. Rosenstein, 
 2 C. & P. 414— Parke. 
 
 In an indictment for peijury com- 
 mitted on the trial of a person for 
 
 making a false statutory declaration, 
 the perjury assigned was that the 
 defendant swore that there was no 
 draft of that statutory declaration. 
 The indictment did not shew that 
 the draft was, or had been, in his 
 possession. The draft was sup- 
 posed to have been made by a firm 
 of solicitors, of which the defendant 
 was a member, on the occasion of a 
 loan of money. At the trial, sec- 
 ondary evidence of the draft was al- 
 lowed to be given without a notice 
 to produce having been served on 
 the prisoner, it being proved to 
 have been in his possession :^-Held, 
 that a notice to produce was neces- 
 sary, and that secondary evidence 
 was inadmissible without it. Reg. 
 V. Elworthy, 17 L. T., N. S. 293 ; 1 
 L. R., C. C. 103 ; 37 L. J., M. C. 3 ; 
 16 W. R. 207 ; 10 Cox, C. C. 579. 
 
 25. On other Points. 
 Where an indictment charged 
 that a person shot at one Harvey 
 Garnett Phipps Tuckett : — Held, 
 that Tuckett's card, though given 
 to one of the witnesses in the pres- 
 ence of the party charged, could 
 not be given in evidence against 
 him on the trial to prove the name, 
 as its contents were not shewn to 
 have been communicated to him. 
 Reg. V. Douglas, Car. & M. 193 — 
 Williams. 
 
 XLVn. Veedict. 
 
 Though a verdict is recorded, 
 yet if it appears promptly, that it 
 is not according to the intention of 
 the jury, it may be vacated and set 
 right. Rex V. Parkin, 1 M. C. C. 45. 
 
 If two are indicted for jointly 
 making a corrupt contract with a 
 third person for the procuring an 
 East India cadetship, one may be 
 convicted, though the other is ac- 
 quitted. Rex V. Taggart, 1 C. & P 
 201— Abbott. 
 
 A good finding on a bad count 
 
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NEW TRIAL. 
 
 581 
 
 m an indictment, and a bad finding 
 on a good count, stand on the same 
 footmg ; both being nullities. 0' Oon- 
 nell V. Reg. (in error), 11 C. & P. 
 155 ; 9 Jur. 25. 
 
 Where a count contains only one 
 charge against several defendants, 
 the jury cannot find any one of the 
 defendants guilty of more than one 
 charge. Ih. 
 
 At sessions the jury gave a special 
 verdict of not guilty, and it was en- 
 tered in the book of the clerk of the 
 peace. Afterwards, the chairman 
 told the jury they must reconsider 
 their verdict ; and they gave a ver- 
 dict of guilty generally, but recom- 
 mended the defendant to mercy on 
 account of his not doing the act 
 with a malicious intent ; and the 
 verdict was then altered in the 
 book of the clerk of the peace. 
 The court refused to interefere by 
 mandamus to cancel the alterations. 
 Rex V. Suffolk {Justices), 5 N. & M. 
 139 ; Rex V. Sughes, 1 H. & W. 
 313. 
 
 One of the jury pronounced a 
 verdict of not guilty, which was en- 
 tered by the clerk of the peace in 
 his minute book, and the prisoner 
 was discharged. The other jury- 
 men then interfered, and said their 
 verdict was guilty ; whereupon the 
 prisoner was brought back, and the 
 jury was again asked for their ver- 
 dict, when they all said it was 
 guilty, and that they had been 
 unanimous. A verdict of guilty 
 was then recorded : — Held, that the 
 verdict was properly amended ; and 
 the conviction must stand. Reg. v. 
 Vodden, Dears. C. C. 229 ; 17 Jur. 
 1014; 23 L. J., M. C. 7; 6 Cox, C. 
 C. 226. 
 
 A verdict of not guilty can be en- 
 tered on one count, and of guilty on 
 another. Reg.Y. Craddock,14,3viX. 
 1031— C. C. R. 
 
 Where a jury returns what the 
 judge considers to be an improper 
 verdict, he may direct them to re- 
 consider it, and is not bound to re- 
 cord it unless they insist upon his 
 
 doing so. Where the jury recon- 
 siders their verdict and alters it, 
 the second is the real verdict of the 
 jury. Reg. v. Meany, L. & C. 213 ; 
 9 Cox, C. C. 231 ; 8 Jur.,N. S. 1161 ; 
 32 L. J., M. C. 24 : 11 W. R. 41 ; 7 
 L. T., N. S. 393. 
 
 Upon an indictment for stealing 
 a watch the jury returned the fol- 
 lowing verdict: — "We find the 
 prisoner not guilty of stealing the 
 watch, but guilty of keeping it in 
 the hope of reward from the time 
 he first had the watch." The court 
 of quarter sessions directed a ver- 
 dict of guilty to be entered : — ^Held, 
 that upon this finding a verdict of 
 not guilty should have been entered. 
 Reg. V. Yorh, 1 Den. 0. C. 335 ; T. 
 & M. 20; 2C. &K. 841; 12 Jur. 
 1078;_18L. J., M. C. 38. 
 
 A jury returned a verdict of 
 guilty on an indictment, but rec- 
 ommended the defendant to mer- 
 cy on the ground that perhaps he 
 did not know that he was acting 
 contrary to law : — Held, that the 
 conviction was not invalidated by 
 this addition to the verdict. Reg. 
 V. Craws/utw, Bell, C. C. 303 ; '& 
 Cox, C. C. 375 ; 9 W. R. 38. 
 
 Indictment for murder. Defence 
 that deceased committed suicide. 
 Yerdict guilty, the jury adding that 
 they believed the act was commit- 
 ted without premeditation. The 
 judge refused to receive such a ver- 
 dict, and di]-ected the jury to say 
 guilty or not guilty. Reg. v. Mcd- 
 oney, 9 Cox, C. C. 6. 
 
 XLVm. New Teial. 
 
 In what Cases.'] — No new trial 
 can be granted in cases of felony. 
 Rex V. Mawbey, 6 T. R. 638. 
 
 But with respect to misdemean- 
 ors, it is entirely discretionary in 
 the court whether it will grant or 
 refuse a new trial, lb. 
 
 A new trial was gi-anted on the • 
 ground of the improper reception of 
 
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582 
 
 NEW TRIAL. 
 
 depositions in a case of felony re- 
 moved by certiorari. Reg. v. Soaife, 
 17 Q. B.'238. 
 
 But this case has been overruled. 
 Reg. V. Bertmnd, 16 L. T., K S. 
 752— P. 0. 
 
 No new trial can be granted on 
 •an indictment for perjury, where 
 the defendant is acquitted. Rex v. 
 Brice, 2 B. & A. 606 ; 1 Chit. 352. 
 After a verdict for a defendant, 
 upon an indictment for the non-re- 
 pair of a highway, the court refus- 
 ed an application for a new trial, on 
 the ground of the improper rejection 
 of evidence ; but suspended the judg- 
 ment in order that another indict- 
 ment might be preferred. Rex v. 
 Sutton, 5 B. & Ad. 52 ; 2 N. & M. 
 57 ; ,tS'. p., Rex V. Wandsworth, 1 
 B. & A. 63 ; 2 Chit. 282 ; Reg. v. 
 GhaMicombe, 6 Jur. 481. 
 
 A new trial was refused after a 
 verdict of not guilty, upon an indict- 
 ment for not repairing a road, when 
 the verdict did not bind the right. 
 Rex V. Burhon, 5 M. & S. 392. 
 
 Where, upon trial of an indict- 
 ment for a misdemeanor, a witness 
 examined before the grand jury was 
 not examined at the trial, and a wit- 
 ness not examined before the grand 
 jury was: — Held, that it was not 
 such a surprise upon the defendants 
 as entitled them to a new trial. 
 Rex V. HoUinglerry, 6 D. & R. 345 : 
 4 B. & C. 329. 
 
 Upon the trial of an indictment 
 for a misdemeanor, which continued 
 more than one day, the jury, without 
 the knowledge or consent of the de- 
 fendants, separated at night : — Held, 
 that the verdict was not therefore 
 void ; and that it formed no ground 
 for granting a new trial, it not ap- 
 pearing that there was any suspicion 
 of any improper communications 
 having taken place. Rex v. Kin- 
 near, 2 B. & A. 462. 
 
 The court refused to gi-ant a rule 
 
 nisi for a new trial after a verdict 
 
 for the defendant upon an indict- 
 
 'ment for non-'rejpair of a church- 
 
 yard fence, which was moved, on the 
 ground of the verdict being against 
 evidence. Rex v. Reyndl, 6 East, 
 315 ; 2 Smith, 406. 
 
 Not granted even for a misdirec- 
 tion, after an acquittal on an indict- 
 ment for a misdemeanor. Rex v. 
 Cohen, 1 Stark, 516 — Ellenborough. 
 
 According to the common law 
 there is no power to grant a new 
 trial in a case of felony. Reg. v. 
 Bertrand, 1 L. R., P. C. 520 ; 31 L. 
 J., P. C. 51 ; 16 W. R. 9 ; 16 L. T., 
 N. S. 752 ; S. P., Reg. v. Murphy, 
 38 L. J., P. C. 53 ; 2 L. R., P. C. 
 535 ; 17 W. R. 1047 : 21 L. T., N. 
 S. 598. 
 
 The 17 & 18 Vict. c. 125, s. 35, 
 C. L. P. Act, 1854, which gives an 
 appeal on motions for new trials 
 does not apply to indictments. Reg. 
 V. Stephens, 7 B. & S. 710. 
 
 Venire de Novo.] — In a charge of 
 felony where the indictment is good 
 and the prisoner has been given in 
 charge to a jury in due form of law 
 impanneled, chosen and sworn, and 
 a verdict has been returned and 
 judgment given, the proceedings 
 are final, and a venire de novo will 
 not lie. Reg. v. Murphy, 38 L. J., 
 P. C. 53; 17W.R. 1047; 2L.R., 
 P. C. 535 ; 21 L. T., N. S. 598. 
 
 i.J — If all the jury was 
 not present when the verdict of 
 guilty was delivered against a de- 
 fendant for the publication of a li- 
 bel, and it is uncertain whether they 
 all heard such verdict pronounced 
 by the foreman, the court will, with 
 the consent of the defendant, grant 
 a new trial. Rex v. Wooller, 2 
 Stark, 111— Abbott. 
 
 Upon the trial of an information 
 for & libel by a special jury, only 
 ten jurymen appeared, and two 
 talesmen were sworn to make up 
 the jury : it is no ground for a new 
 trial, that two of the non-attending 
 special jurymen named in the panel 
 had not been summoned, though it 
 
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NEW TRIAL. 
 
 583 
 
 appeared that this fact was unknown 
 to the defendant until after the trial. 
 Bex V. Sunt, 4 B. & A. 430. 
 
 After a special jury had been 
 sworn on the trial of an indict- 
 ment for a misdemeanor, it was 
 discovered that one of them had 
 sat on the grand jury who found 
 the bill. It was proposed that he 
 should leave the box, but the de- 
 fendants objected to this course : the 
 trial proceeded, and they were found 
 guilty. Under these circumstances, 
 the court refused to grant a rule for 
 a new trial on the ground of mistri- 
 al. Reg. V. Sidlivan, 1 P. & D. 96 ; 
 8 A. & El. 831. 
 
 Where, on the trial of an indict- 
 ment for perjury, it was necessary 
 to swear talesmen from the common 
 jury panel, and one J. Williams be- 
 ing called, his son R. H. Williams 
 (at the request of his father, and 
 without collusion), appeared for 
 him, and was sworn and served on 
 the jury, he not being of age, neith- 
 er having a qualification, not being 
 on the panel : — Held, that there was 
 a mistrial, and a rule obtained for 
 a new trial was made absolute. 
 Hex V. Tremaine, 7 D. & R. 684 ; 
 5 B. & C. 254. 
 
 Where, in an indictment not 
 charging an otfence for which the 
 defendant, if guilty, might suffer 
 fine and imprisonment, a civil right 
 comes in question, and the right 
 would be bound by the verdict, a 
 new trial may be granted after a 
 verdict for defendant. By Lord 
 Campbell, C. J., and Crompton, J. 
 Reg. V. RuMdl, 3 El. & Bl. 942 ; 18 
 Jur. 1022 ; 23 L. J., H. C. 173. See 
 Reg. V. Botfield, 1 Jur., N. S. 594, 
 n.— Q. B. 
 
 But by Coleridge, J., wherever 
 the substance of a criminal pro- 
 ceeding is civil, a new trial may be 
 granted after a verdict for the de- 
 fendant, on the ground either of 
 misdirection, or of the verdict be- 
 ing against the evidence. Ih. 
 
 Held, accordingly, by Lord Camp- 
 
 bell, C. J., and Crompton, J. (Cole- 
 ridge, J., dissenting), that where an 
 indictment charged the defendant 
 with erecting an obstruction to the 
 navigation of the Menai Straits, and 
 the right to an oyster fishery waS'in 
 question, the court ought not to grant 
 a new trial after verdict for the de- 
 fendant. Ih. 
 
 A new trial will not be granted, 
 after an acquittal upon an indict- 
 ment for obstru-cting a highway, on 
 the ground that the verdict is 
 against the evidence. Reg. v. John- 
 son, 6 Jur., N. S. 553 ; 29 L. J., M. 
 C. 133 ; 8 W. R. 236— Q. B. 
 
 But a new trial will be granted 
 on an indictment for a misdemean- 
 or on the ground of surprise, as in 
 civil cases. Reg. v. Whitehouse, 
 Dears. C.C.I. 
 
 Defendants entitled io.] — Where 
 several defendants are tried at the 
 same time for a misdemeanor, and 
 some are acquitted and some con- 
 victed, the court may grant a new 
 trial as to those convicted, if they 
 think the conviction improper. Rex 
 V. Mawbey, 6 T. R. 619. 
 
 Where all of several defendants 
 in an indictment for conspiracy are 
 found guilty, if one of them shews 
 himself entitled to a new trial, on 
 grounds not affecting the Others, 
 the new trial will nevertheless be 
 granted. Reg. v. Gompertz, 9 Q. 
 B. 824; 16L. J., Q. B. 121. 
 
 Practice on — Thne to move.] — 
 A defendant, convicted on a crini- 
 iual prosecution, cannot move for a 
 new trial after the first four days of 
 the next term ; though, if it appears 
 to the court at any time before 
 judgment, that injustice has been 
 done by the verdict, they will inter- 
 pose and grant a new trial. Rex v. 
 Holt, T. R. 436. 
 
 A motion for a new trial on be- 
 half of a defendant in an indict- 
 ment, must be made within the first 
 four days of term, .though the ar- 
 
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584 
 
 JUDGMENT AND SENTENCE. 
 
 gument will be postponed till he is 
 brouglit u.]) for judgment. Reg. v. 
 Hetherington, 5 Jur. 529 — Q. B. 
 
 Where a new trial is to.be moved 
 for by a defendant in a ciiminal 
 case, intimation must be given to 
 the court during the first four days 
 of term that the party is prepared 
 to move. Reg. v. Newman, 1 El. 
 & Bl. 268 ; Dears. C. C. 85 ; 17 
 Jur. 617 ; 22 L. J., Q. B. 156. 
 
 Affidavits.] — Affidavits of new 
 facts are not in general admissible 
 in criminal cases, on a motion for a 
 new trial, unless there was some 
 surprise on the defendant at the 
 trial ; but affidavits of the death of 
 a person may be received to account 
 for his not having been examined as 
 a witness. Rex v. jBoioditch, 2 Chit. 
 278. 
 
 Personal Attendance.] — All the 
 defendants convicted upon an in- 
 dictment for a conspiracy must be 
 present in court when a motion for 
 a new trial is made on behalf of 
 any of them. Rex v. Teai, 11 East, 
 307 ; S. P., Rex v. Askeio, 3 M. & 
 S. 9 ; Rex v. Cochrane {Lord) , 3 
 M. & S. 10, n. 
 
 Where a defendant convicted of 
 a ' misdemeanor at the assizes was 
 committed to the county gaol to 
 abide the judgment of the court, 
 and was detained for no other cause; 
 on a suggestion of his inability to 
 pay the expense of bringing himself 
 up, the court allowed a motion for 
 a new trial to be made without his 
 personal attendance. Rex v. Boltz, 
 8 D. & R. 65. 
 
 It seems that the consent of the 
 counsel for the prosecution cannot 
 dispense with the rule which re- 
 quires the presence of defendants 
 convicted upon a criminal proceed- 
 ing, during a motion for a new trial. 
 Rex V. Fielder, 2 D. & R. 46. 
 
 A defendant in the actual cus- 
 tody of the marshal upon criminal 
 process, in consequence of an indict- 
 ment in the King's Bench, need not 
 
 be present when a motion for a new 
 trial is made on his behalf Rex v. 
 milingberry, 6 D & R. 345 ; 4 B. 
 & C. 329. 
 
 A defendant sentenced to trans- 
 portation cannot move for a new 
 trial without appearing in court, 
 though the sentence has been passed 
 at the assizes under 1 1 Geo. 4 & 1 
 Will. 4, c. 7jO, s. 9. Reg. v. Gaid- 
 well, 17 Q. B. 503 ; 2 Den. C. C. 
 372, n. ; 15 Jur. 1011 ; 21 L. J., M. 
 C. 48. 
 
 Semble, that where there are sev- 
 eral defendants, all need not be pres- 
 ent in court in order to entitle one 
 or more of such defendants to move 
 for a new trial. lb. 
 
 In moving for a new trial where 
 the defendant has been found guilty 
 of a nuisance in obstructing a pub- 
 lic sewer, and where he is liable not 
 to personal punishment but to a 
 fine, it is not necessary that he 
 should be present in court. Reg. v. 
 Parkinson, 2 Den. C. C. 459 ; 15 
 Jur. 1011. 
 
 Costs.] — The rule as to payment 
 of costs on a motion for a new trial 
 is the same in principle in civil and 
 criminal cases. Rex v. Ford, 1 N. 
 & M.776. 
 
 Where a new trial, on an indict- 
 ment removed into the Queen's 
 Bench by certiorari at the instance 
 of the defendant, is ordered on the 
 ground of surprise, the court may, 
 in its discretion, order the costs to 
 await the event of the new trial. 
 Reg. V. WhitehoKse, Dears. C. C. 1. 
 
 XLIX. Judgment and Sentence. 
 
 1. Form and Entry generally, 585. 
 
 2. At Nisi Prius,' 588. 
 
 3. Bringing upbefore Court of Queen's 
 
 Bench, 589. 
 
 4. Arrest of, 590. 
 
 5. Meversai, 590. 
 
 As to MuEDBE, see page 382. 
 
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FOEM AND ENTRY GENERALLY. 
 
 585 
 
 1. Form and Entry generally. 
 _ The record at the quarter ses- 
 sions, after stating that the defend- 
 ants were indicted for stealing oats, 
 to which they pleaded not guilty, 
 and a verdict of guilty thereon, 
 added, " that because it appeared 
 to the justices, that, after the jury 
 had retired, one of them had sep- 
 arated from the other jurors, and 
 conversed respecting his verdict 
 with a stranger, it was considered 
 that the verdict was bad," and it 
 was therefore quashed, and a venire 
 de novo awarded to the next ses- 
 sions ; and it then proceeded to set 
 out the afipearance of the parties at 
 such sessions, and the trial and con- 
 viction by the second jury, " where- 
 upon all and singular the premises 
 being seen and considered, judg- 
 ment was given ": — Held, on a writ 
 of error, that such judgment was 
 right. Rex v. Fowler, 4 B. & A. 
 273. 
 
 A witness being indicted for per- 
 jury is not a reason for postponing 
 judgment aga^st the person con- 
 victed. Rex V. Haydon, 1 W. Bl. 
 404 ; 3 Burr. 1387. 
 
 Indictment against A., B., C. and 
 D. for a conspiracy, charging that 
 they conspired together, with divers 
 other persons unknown. A. and B. 
 were tried. A. was found not guil- 
 ty, and B. was found guilty of con- 
 spiring with C. C. had pleaded 
 before the trial of A. and B., but 
 neither he nor D. appeared to take 
 their trials. On motion to arrest 
 the judgment against B., or sus- 
 pend it till C. be tried :— Held, that 
 the verdict was conclusive against 
 ]B. as a general verdict of guilty, 
 and that judgment might be given 
 against him without reference to 
 what the verdict might be on the 
 trial of C. Rex v. Cooke, 7 D. & 
 R. 673 ; 5 B. & C. 538. 
 
 A judgment of imprisonment 
 against a defendant to commence in 
 futuro, i. e. from and after the de- 
 termination of an imprisonment to 
 which he was before sentenced for 
 
 another offence, is good in law. 
 Willies V. Rex (in error), 4 Bro. P. 
 C. 367. 
 
 It is not the practice of any court 
 of criminal jurisdiction to make the 
 day upon which execution of any 
 corporal punishment is to be done a 
 part of the original sentence. The 
 time of inflicting such punishment 
 is usually left either to the discre- 
 tion of the officer to whom the exe- 
 cution of the sentence belongs, or 
 is appointed by a particular rule of 
 the court (or statute 27 & 28 Vict, 
 c. 44), which awards the punish- 
 ment. Atkinson v. Rex (in error), 
 3 Bro. P. 0. 517. 
 
 Where a fixed fine by statute for 
 a misdemeanor is miscalculated in 
 the verdict and the judgment, the 
 court, upon a rule served on all par- 
 ties interested, will alter the rule 
 for judgment against the prisoner, 
 and the entry roll as to so much of 
 the punishment, but they will not 
 alter the judgment and verdict. 
 Rex V. Stevens, 3 Smith, 366. 
 
 A sentence of corporal punish- 
 ment cannot be pronounced upon a 
 person in his absence. Rea; v. Hann, 
 3 Burr. 1786 ; S. P., Anon., Lofft, 
 400. 
 
 Ageneral judgmentforthecrown, 
 on an indictment containing several 
 coimts, one of which is bad, and 
 where the punishment is not fixed by 
 law, cannot be supported. ' Gon- 
 nell V. Reg. (in error), 11 C. <fc F. 
 155 ; 9 Jur. 25. 
 
 An indictment contained four 
 counts for extortion, and three counts 
 for uttering forged licences. The 
 jury having returned a verdict of 
 guilty upon all the counts, the court 
 passed sentence of the same iden- 
 tical term of imprisonment iipon 
 each count separately. Reg. v. Car- 
 ter, 9 Jur. 178— Q. JB. 
 
 Two persons charged on indict- 
 ment with a joint felony, ought not 
 to be sentenced thereon on proof of 
 two distinct felonies. If a verdict 
 of guilty is given against both, 
 judgment may be given against the 
 
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586 
 
 JUDGMENT Am) SENTENCE. 
 
 party who is proved to have com- 
 mitted the first felony in order of 
 time. Reg. v. Oray, 2 Den. C. C. 
 87;T. &M. 411. 
 
 Il is not necessary, in recording 
 sentence, to refer to the statute 
 which gives the punishment. Mur- 
 ray v. Reg. (in error), 7 Q. B. 700; 
 9 Jur. 596; 14 L. J., Q. B. 357. 
 
 An indictment at quarter sessions 
 charged prisoners, in a first count, 
 with stealing in the dwelling-house 
 of A. the goods of A. above the 
 value of SI. ; in the second count, 
 with simple larceny of monies and 
 goods (not " other " goods, &c.,) of 
 A., describing them precisely as in 
 the first count, and not using the 
 word " afterwards." Not guilty. 
 Jury process to try whether the 
 prisoners are guilty of the felony 
 aforesaid. Verdict, that the prison- 
 ers are guilty of the felony afore- 
 said. Judgment, that they respect- 
 ively be transported for ten years : 
 — Held, that an indictment for fel- 
 ony containing several counts is 
 bad in arrest of judgment, and on 
 error, for duplicity, if it necessarily 
 appears that two or more of the 
 counts are for the same offence ; 
 but that this did not necessarily ap- 
 pear on the present indictment. 
 Campbell v. Reg. (in error), 11 Q. 
 B. 799 ; 2 New Sess. Cas. 297 ; 10 
 Jur. 329 ; 15 L. J., M. C. 76 ; 2 
 QiQ\, C. C. 463. 
 
 Held, secondly, that the word 
 " felony " was not nomen collect- 
 ivum, meaning felony generally, 
 but pointed to one particular charge 
 of felony. Ih. See Ryalls v. Reg. (in 
 error), 11 Q. B. 781. 
 
 Held, thirdly, that the verdict 
 was bad for uncertainty, in not 
 specifying the offence of which it 
 found the prisoners guilty. Ih. 
 
 Held, fourthly, that the judgment 
 was erroneous, the court not being 
 at liberty to apply it to the first 
 count only. lb. 
 
 On error in the Exchequer Cham- 
 ber : — ^Held, that whether or not 
 the word " felony " was to be taken 
 
 as nomen coUectivum in the judg- 
 ment at sessions, it could m.ean in 
 the jury process one offence only, 
 and therefore the process was here 
 misawarded, and the judgment 
 could not be sustained. Ih. 
 
 Under 7 Will. 4 & 1 Vict. c. 90, 
 s. 1, by which any person convicted 
 of the offence of breaking and en- 
 tering a dwelling-house, and steal- 
 ing therein, shall be liable to be 
 transported beyond the seas for any 
 term not exceeding fifteen years, 
 nor less than ten years, there was 
 no power to pass sentence of trans- 
 portation for less than ten years. 
 Whitehead v. Reg. (in error) , 7 Q. 
 B. 582 ; 9 Jur. 594 ; 14 L. J., M. C. 
 165. 
 
 On an indictment for libel, the 
 defendant suffered judgment by re- 
 traxit. The record of the judgment 
 stated that the prosecutor and the 
 defendant came, &c., and the de- 
 fendant " withdrew his plea by him 
 pleaded, whereby our lady the 
 Queen remaineth against him with- 
 out defence in his behalf, whereup- 
 on "it was adjudged that he be 
 convicted : — Held, sufiicient ground 
 for a judgment, though it was not 
 expressly alleged that the defendant 
 confessed the indictment. Gregory 
 V. Reg. (in error), 15 Q. B. 957 ; 15 
 Jur. 79 ; 19 L. J., Q. B. 367— Exch. 
 Cham. 
 
 The judgment, as entered on the 
 record, being that, for the offences 
 charged in each and every count of 
 the indictment, the defendant be 
 imprisoned in the Queen's prison for 
 six months now next ensuing : — 
 Semble, that the judgment was, in 
 form, a sentence of one term of six 
 months' imprisonment upon the 
 whole indictment, and would, there- 
 fore, be erroneous if any count was 
 bad. Ih. 
 
 To the judgment of imprison- 
 ment was added, " and that he " 
 (defendant) " be placed in the first 
 division of the fourth class of pris- 
 oners in the Queen's prison " : — 
 Semble, that, if this direction was 
 
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FOEM AND ENTRY GENERALLY. 
 
 587 
 
 not warranted by an order of the 
 secretary of state, under 5 & 6 Vict. 
 c. 22, it did not vitiate the judg- 
 ment. Ih. 
 
 Held, by the Queen's Bench, that 
 such direction, when warranted, is 
 no part of the judgment of the court, 
 but a mere order. lb. 
 
 On an objection to the entry of a 
 judgment, on the ground that it 
 was a general judgment upon all 
 the counts, and one of them was 
 bad, the court ordered the case to 
 stand over to allow the progecutor 
 to apply to the court below to 
 amend. Ih. 
 
 If one count in an indictment re- 
 moved from the quarter sessions to 
 the Queen's Bench by writ of error 
 is good, the court may, under 11 & 
 12 Vict. c. 78, s. 5, pronounce judg- 
 ment, or direct the sessions to pro- 
 nounce it, on the good count. Hol- 
 hwayv. Reg. (in error), 17 Q. B. 
 319; 2 Den. C. C. 287; 15 Jur. 
 825. 
 
 The record of the proceedings in 
 the Queen's Bench upon an indict- 
 ment, containing several counts for 
 perjury, after regularly setting forth 
 all the proceedings, down to the 
 finding of a verdict of guilty and 
 the prayer of judgment, went on to 
 state that " because it appears to 
 the court here, that the verdict so 
 given against O. W. K. was unduly 
 given ; therefore, the verdict is by 
 the court here vacated and made 
 void ; and all other process ceasing 
 against the jury before impanneled, 
 the sherifi" is commanded so that he 
 cause a jury anew thereupon to 
 come, &c., by whom the truth of 
 the matter may be better known." 
 And then, after regularly carrying 
 down the further proceedings to the 
 finding of a second verdict of guilty, 
 and a second prayer of judgment, it 
 concluded thus : " It is considered 
 and adjudged and ordered that O. 
 W. K., for the offence charged upon 
 him in and by each and every count 
 of the indictment, be imprisoned in 
 the Queen's prison for the space of 
 
 eight calendar months " : — Held, 
 that the record in terms contained a 
 sufficient entry of the award of a 
 new trial, it appearing that the form 
 adopted was the same as the prece- 
 dents used and approved of, and 
 that the entry of the final judgment 
 and sentence was sufficiently cer- 
 tain. King v. lieg. (in error), 13 
 Jur. 742 ; 18 L. J., Q .B. 253— Exch. 
 Cham. 
 
 The written list of sentences pass- 
 ed upon the prisoners given to the 
 gaoler by the clerk of the assize, 
 and which is his only authority for 
 their detention, is not evidence that 
 they are in legal custody on an 
 indictment for assaulting the turn- 
 key in the execution of his duty. 
 Beg. V. Bourdon, 2 Cox, C. C. 169 
 — Maule. 
 
 An indictment contained three 
 counts ; first, a count stating a pre- 
 vious conviction, and a subsequent 
 larceny ; secondly, a count for lar- 
 ceny ; thirdly, a count for receiving 
 stolen goods. "When the prisoner 
 was arraigned, so much only of the 
 first count as charged the subsequent 
 felony was read to him, and he 
 pleaded guilty thereto. He also 
 pleaded guilty to the second count. 
 Then so much of the first count was 
 read as stated the previous convic- 
 tion, and the prisoner ])leaded guilty 
 thereto. He was then sentenced to 
 five years' penal servitude on the 
 second count : a nolle prosequi was 
 entered on the third, and nothing 
 was done on the first. These facts 
 appeared on the record. The crowu 
 having brought the record upon 
 writ of error for the purpose of hav- 
 ing the sentence increased to seven 
 years' penal servitude, under 27 & 
 28 Vict. c. 47, s. 2 .-—Held, that the 
 first count was bad, and no sentence 
 could be entered upon it ; that, the 
 second count being good, the sen- 
 tence properly entered upon it was 
 not affected by the first count ; and, 
 the crown entering a nolle prosequi 
 on the first count, the judgment and 
 sentence were affirmed; but- the 
 
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588 
 
 JUDGMENT AKD SENTENCE. 
 
 court recommended that, under the 
 circumstances, the executive should 
 discharge the prisoner after two 
 years' imprisonment. Meg. v 0'- 
 &ien, 1 Ir. R., C. L. 166— Q. B. 
 
 A prisoner had been convicted 
 on an indictment charging a pre- 
 vious conviction and subsequent 
 felony under 24 & 25 Vict. c. 96, 
 s. 116, and sentenced by mistake to 
 five years' penal servitude, seven 
 years bemg the minimum under the 
 statute. Upon a writ of error, by 
 the crown, for the purpose of re- 
 versing the judgment and passing 
 the proper sentence, it appeared 
 from the record that the provisions 
 of the statute, as to arraigning the 
 prisoner, had been neglected : — 
 Held, that these provisions were 
 material, and the conviction was 
 quashed. Meg. v. Fox, 10 Cox, C. 
 C. 502 ; 15 W. R. 106— Ir. Q. B. 
 
 A. was convicted of the misde- 
 meanor of having done grievous 
 bodily harm to B. The indictment 
 did not charge a previous conviction 
 of felony; but after the jury had 
 found him guilty, it was proved on 
 oath that he had been previously 
 convicted of felony, but no record 
 or certificate of such conviction 
 was produced. He was sentenced 
 to penal servitude for five years, as 
 for a misdemeanor only, without any 
 previous conviction of felony : — 
 Held, that the sentence was correct 
 under 27 & 28 Vict. c. 47, s. 2. 
 Meg. V. Summers, 1 L. R., C. C. 
 182 ; 38 L. J., M. C. 62 ; 17 W. R. 
 384 ; 11 Cox, C. C. 248. See Meg. 
 V. Garland, 11 Cox, C. C. 224. 
 
 2. At Nisi Prius. 
 By 11 Geo. 4 & 1 Will. 4, c. 70, 
 s. 9, upon trials for felony or misde- 
 meanor on a K. B. Record, judg- 
 ment may be pronounced at the as- 
 sizes, and shall have the effect of 
 a judgment in the court above, un- 
 less the court in the first six days of 
 term grant a rule nisi for a new 
 trial or for amending the judgment. 
 A defendant on such record having 
 
 been sentenced at the assizes, cannot 
 apply to the court to amend the 
 judgment by diminishing the pun- 
 ishment upon ordinary affidavits in 
 mitigation, or without shewing some 
 specific defect in the sentence, or 
 some matter which could not have 
 been adduced at the assizes. Mex 
 r. Lloyd, 4: B. & Ad. 135. 
 
 Where judgment on a record of 
 the Queen's Bench is pronounced 
 at the assizes under 11 Geo. 4 & 1 
 Will. 4 c. 70, s. 9, the court may, 
 if they see fit, amend the judgment 
 by ordering it to be arrested. Reg. 
 V. Nott, 4 Q. B. 768 ; D. & M. 1 ; 
 7 Jur. 621 ; 12 L. J., M. C. 143. 
 
 Where a verdict has been given 
 for the crown in such trial, and the 
 defendant desires to have judgment 
 pronounced at the assizes, it is the 
 proper course for his counsel to state 
 at the same time,'that he intends to 
 avail himself of the provision of sec- 
 tion 9, by moving the court for a 
 new trial on the ground of misdirec- 
 tion, or in arrest of judgment. lb. 
 
 A sentence of imprisonment pass- 
 ed at Nisi Prius, the defendant not 
 being present, may declare that the 
 imprisonment shall commence on 
 the day on which he shall be taken 
 to and confined in prison. King v. 
 Meg. (in error), 7 Q. B. 782 ; 9 Jur. 
 833 ; 14 L. J., M. C. 172— Exch. 
 Cham. 
 
 Upon the trial of an indictment 
 at Nisi Prius, judgment was pro- 
 nounced by the judge, under 11 
 Geo. 4 & 1 Will. 4, c. 70, s. 9 ; but 
 a rule nisi, to arrest the judgment, 
 was afterwards granted by the 
 court of Queen's Bench, within the 
 first six days of tei-m, and subse- 
 quently discharged. Upon writ of 
 error brought, the record was 
 made up without any notice of such 
 rule : — ^Held, that the judgment 
 could not be impeached upon the 
 ground of such rule having been 
 granted, Dunn v. Meg. (in error), 
 12 Q. B. 1026 ; 13 Jur. 233 ; 18 L. 
 J., M. C. 41 ; 3 Cox, C. C. 205— 
 Exch. Cham. 
 
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BRINGING UP FOR JUDGMENT, ETC. 
 
 589 
 
 An indictment for felony had 
 been removed from the quarter 
 sessions, and tried at Nisi Prius. 
 The prisoners were convicted, and 
 the court of Queen's Bench ordered 
 a new trial. Neither side brought 
 down the record, but the prisoners 
 applied to be tried there ; this could 
 not be done, as the record had not 
 been brought down. A procedendo 
 issued, and the prisoners were tried 
 at the quarter sessions, and convict- 
 ed. Beg. V. Scaife, 3 G. & K 211 
 — Alderson. 
 
 3. Bringing up for Judgment before 
 Court of Queen's Bench. 
 
 The court cannot compel a prose- 
 cutor to be at the expense of bring- 
 ing a defendant in custody up to re- 
 ceive judgment for a misdemeanor ; 
 but if the defendant is too poor to 
 come up at his own expense, they 
 will pass judgment ia his absence. 
 Bex V. Boltz, 8 D. & R. 65 ; 5 B. 
 & C. 334. 
 
 Where a defendant, convicted 
 upon an indictment for a libel, was 
 committed to prison at the instance 
 of the prosecutor, who would not 
 aftei-wards bring him up for judg- 
 ment, the cou.rt, at the prayer of 
 the defendant, passed judgment in 
 his absence. lb. 
 
 When a defendant is brought 
 up for judgment, after verdict, the 
 defendant's affidavits will be first 
 read, and then those for the prose- 
 cution ; after which the defendant's 
 counsel will be heard, and lastly, 
 the counsel for the prosecution. Bex 
 V. Bunts, 2 T. R. 683. 
 
 But where a defendant is brought 
 up for sentence, after judgment by 
 default, the prosecutor's affidavits 
 will be first read, then the defend- 
 ant's ; after which the counsel for 
 the prosecution will be heard, and 
 lastly, the counsel for the defend- 
 ant. Jb. ~ . -■■ 
 
 Where, upon a tnal of an mdict- 
 ment for libel, one of the defendants 
 pleaded guilty, and entered into re- 
 cognizances to appear and receive 
 
 judgment, with a condition that if 
 he ceased to publish libels he should 
 not be called up ; the court will not 
 pass judgment unless the prosecutor 
 produces an affidavit that he has 
 pubUshed a libel since the trial. 
 Beg. V. Biohardson, 4 Jur. 104 ; 8 
 D. P. C. 511. 
 
 Where several defendants are 
 brought up for sentence, some after 
 judgment by default and others af- 
 ter verdict, the counsel for all must 
 first be heard in mitigation, and 
 then the counsel for the crown in 
 aggravation. Bex v. Bespard, 2 • 
 M. & R. 406. 
 
 Where a defendant, having plead- 
 ed guilty to an indictment, is 
 brought up for judgment, the coun- 
 sel for the crown is to be heard be- 
 fore the counsel for the defendant ; 
 and the affidavits in aggravation 
 are to be read before the affidavits 
 in mitigation. Beg. v. Dignam, 7 
 A. & E. 593. 
 
 Contra, where a verdict of guilty 
 has been taken, though by consent, 
 and without evidence, lb. 
 
 Semble, that the rule is not to be 
 varied where several defendants are 
 jointly indicted, and some suffer 
 judgment by default and others are 
 convicted on verdict ; and in such 
 case where there was no affidavit in 
 aggravation, but affidavits were of- 
 fered in mitigation, the court heard 
 the counsel for the defendants first. 
 lb. See Bex v. Sutton, 7 A. & E. 
 592, n. 
 
 When a defendant is brought up 
 for judgment his acts subsequent to 
 the trial may be considered either 
 by way of aggravating or mitigating 
 the punishment, even though they 
 are separate and distinct ofiences, 
 for which he may be afterwards 
 punished. But in such cases the 
 court will take care not to inflict a 
 greater punishment than the princi- 
 pal charge itself will warrant. Bex 
 V. Withers, 3 T. R. 428. 
 
 Affidavits are not admissible in 
 aggravation in a case of felony, al- 
 though the record has been removed 
 
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590 
 
 ERROR AND APPEAL. 
 
 by certiorari. Hex v. Mlis, 9 D. & 
 R. 174; 6B. &C. 145. 
 
 A justice convicted of a misde- 
 meanor in his office must attend in 
 person to receive the judgment of 
 the court ; but upon an affidavit of 
 age and infirmity the court will dis- 
 pense with his personal attendance. 
 Bex V. Gonsiabh, 7 D. & R. 663 ; 3 
 B. & Ad. 659, n. 
 
 A defendant being brought up for 
 judgment for an assault, and it ap- 
 pearing that the prosecutor had 
 commenced an action, which was 
 still depending for the same assault ; 
 the court refused to pass any judg- 
 ment, except that the defendant 
 should give security for his good be- 
 haviour, he having used violent lan- 
 guage towards the prosecutor in ad- 
 dressing the court; and this, al- 
 though, at the time of the defendant 
 being brought up, the prosecutor 
 offered to discontinue the action. 
 Jiex V. 0' Gorman Mahon, 4 A. & E. 
 575. 
 
 4. Arrest of. 
 
 If a defendant would move in ar- 
 rest of judgment after conviction 
 for a misdemeanor, he must be 
 present in court. Rex v. Spragg, 2 
 
 Burr. 928. 
 
 5. Reversal. 
 
 By 11 & 12 Vict. c. 78, s. 5, 
 " whenever any wi-it of error shall 
 " be brought on any judgment in 
 " any indictment, information, pre- 
 " sentment or inquisition in any 
 " criminal case, and the court of er- 
 " ror shall reverse the judgment, it 
 " shall be competent for such court 
 " of error either to pronounce the 
 "proper judgment or to remit the 
 " record to the court below, in or- 
 " der that such court may pronounce 
 " the proper judgment upon such 
 "indictment, information, present- 
 " ment or inquisition." 
 
 Where a person has been erron- 
 eously sentenced at quarter sessions 
 to imprisonment and hard labour, 
 the court, after reversing the judg- 
 
 ment in error, has no alternative 
 but to discharge the prisoner. Sil- 
 versides v. Beg., 2 G-. & D. 617 ; 3 
 Q. B. 406 ; 6 Jur. 805. 
 
 Upon a reversal of the judgment, 
 the court has no power to order 
 that the plaintiff in error should be 
 discharged. King v. Reg. (in er- 
 ror), 7 Q. B. 782 ; 9 Jur. 833 ; 14 
 L. J.,M. C. 172— Exch. Cham. 
 
 Where a judgment of imprison- 
 ment was reversed upon error, the 
 court granted a rule, directing that 
 the plaintiff in error should be dis- 
 charged out of the custody of the 
 keeper of the Queen's prison, where 
 he had been kept by virtue of his 
 commitment. Halt v. Reg. (in er- 
 ror), 2D. & L. 774 ; 9 Jur. 538; 
 14 L. J., Q. B. 98— B. C— Wight- 
 man. 
 
 By 8 & 9 Vict. c. 68, " execution 
 " of judgment upon prosecutions 
 " for misdemeanors, while a writ of 
 " error is pending to reverse the 
 "judgment, may be stayed upon 
 " giving bail." 
 
 L. Ereoe and Appeai. 
 
 1. 
 
 2. 
 
 3. 
 
 Error, 590. 
 
 When an Appeal lies, 594. 
 Court of Cnminal Appeal, 594. 
 4. Rules and Practice, 595. 
 
 1. Error. 
 Grounds^] — After judgment the 
 record can only be removed by a 
 wi-it of error. Rex v. Seton, 7 T. 
 R. 373 ; S. P., Rex v. W. R. Torh- 
 shire {Justices), 7 T. R. 467. 
 
 A return to a writ of error, di- 
 rected to the commissioners of oyer 
 and terminer of the city of London, 
 set out the record of an indictment 
 found against the defendant before 
 the lord mayor and others, and 
 stated that he was tried upon the 
 indictment by a jury of the country 
 at the next session holden before 
 the lord mayor and several of the 
 judges, aldermen, recorder and 
 others, assigned by certain letters 
 
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ERROR. 
 
 591 
 
 patent under the great seal directed 
 to them, or any two or more of 
 them, to inqxiii-e of certain offences ; 
 and that he was, by the verdict of 
 such jury, found guilty ; and that 
 thereunto judgment was given by 
 the court against him. Upon this 
 return the defendant assigned, as 
 eiTors in law, that the judgment 
 was insufficient, and should have 
 been for the defendant : and, as er- 
 rors in fact, first, that, when the 
 jury gave then- verdict there was 
 but one of the justices named in the 
 commission present in court : and, 
 secondly, that the verdict was not 
 at the time it was so given entered 
 of record. The lung's coroner and 
 attorney answered, in nuUo est er- 
 ratsm, and prayed that the judg- 
 ment might be affirmed : — Held, as 
 to the first error in fact, that, as it 
 appeared by the record that the 
 verdict was given at a session hold- 
 en before several of the commission- 
 ers and justices, the plaintiff in er- 
 ror could not be allowed to aver, in 
 contradiction of the record, that 
 only one of the justices was present 
 when the jury gave their verdict, 
 and the answer in nullo est erratum 
 is no admission of the fact assigned 
 for error, unless it could lawfully be 
 assigned, and is well assigned in 
 point of form : — Held, also, that 
 the second error in fact assigned 
 was no error, inasmuch as it was 
 impossible that a verdict should be 
 recorded at the time when it was 
 given, the recording of it being nec- 
 essarily an act subsequent to the 
 delivery of the verdict by a jury. 
 Rex V. Oarlile, 2 B. & Ad. 362 ; 4 
 C. & P. 415. 
 
 Error was brought upon a judg- 
 ment at the Old Bailey, and one 
 ground assigned was that a material 
 fact stated on the record was not 
 true. The court held such an aver- 
 ment inadmissible, and affirmed the 
 judgment. The fact being as al- 
 leged by the defendant below, the 
 court of oyer and terminer after- 
 wards ordered the record to be 
 
 amended, and their clerk, by a rule 
 of the court of K. B., came into 
 the latter court and made the 
 amendment there. Upon motion 
 afterwards that the case might 
 be again set down for argument : — 
 Held, that the court of K. B. could 
 not re-hear it, after the expiration 
 of the term in which judgment was 
 given, though the attorney -general . 
 consented, alid that the only remedy 
 was by writ of error to the House 
 of Lords. Rex v. Oarlile, 2 B. & 
 Ad. 971. 
 
 Upon a writ of error on an in- 
 dictment for felony, the judgment 
 must be reversed, if an erroneous 
 punishment is awarded. Bourne v. 
 Rex (in error), 2 K & P. 248; 7 
 A. & E. 58 ; 1 Jur. 542. 
 
 Where the court appears by the 
 indictment to have had jurisdiction 
 over the offence, it cannot be as- 
 signed as ground of error that the 
 offence was committed out of the 
 jurisdiction of the court. Reg. v. 
 Newton, 1 Jur., N. S. 591 ; 24 L. 
 J., Q. B. 246 ; 4 El. & Bl. 869 ; ;S'. 
 P. and S. O., 16 0. B. 97. 
 
 When an indictment contains sev- 
 eral counts, it is not ground of er- 
 ror that no verdict has been given 
 on some of them, provided a verdict 
 has been found on one good count, 
 and judgment given accordingly. 
 Latham v. Reg. (in error), 5 B. & 
 S. 635. 
 
 A writ of error was sued out by 
 a person convicted of a misdemean- 
 or in the Queen's Bench, and judg- 
 ment of reversal for non-joinder 
 in error was entered up in the Ex- 
 chequer Chamber. Subsequently the 
 Queen's Bench, by rule, quashed the 
 writ as having been improperly 
 issued for the purpose of effecting a 
 compromise. The wiit, assignment 
 of errors, and judgment of reversal 
 remained upon the judgment roll 
 and transcript, and below them an 
 entry was made of the rule of 
 the court, quashing the writ of er- 
 ror. The prisoner sued out a fresh 
 writ of error, and assigned ^errors 
 
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592 
 
 ERROR AND APPEAL. 
 
 both in the indictment and in the 
 rule of the Queen's Bench. The 
 prosecutor obtained a rule nisi in 
 the Exchequer Chamber to exijunge 
 the entry of the judgment : — Held, 
 that the court of Queen's Bench 
 having, in the exercise of its equi- 
 table jurisdiction, quashed the first 
 writ of error for matter dehors the 
 record, that the writ and the judg- 
 ment imder it were both void and 
 gone, aud ought not to remain on 
 the record ; that the rule of the 
 Queen's Bench being for matter de- 
 hors the writ was not examinable 
 in error, and ought not to appear 
 on the record ; and that the rule to 
 expunge the judgment might be 
 made absolute in its terms, as the 
 writ of eiTor, on which it was found- 
 ed, w%s absolutely avoided : ahter if 
 the writ of error had been merely 
 voidable, in which case the rule 
 would have been misconceived as 
 not embracing it. Alhyne v. Reg. 
 (in error), 5 El. & Bl. 399 ; Dears. 
 C. C. 505 ; 1 Jur., N. S. 869 ; 24 
 L. J., Q. B. 282— Exch. Cham. 
 
 The granting of a writ of error 
 is part of the prerogatives of the 
 crown. If, therefore, the attorney- 
 general of England, or the lord lieu- 
 tenant of Ireland, refuses to grant 
 it, the lord chancellor has no juris- 
 diction to review that decision. 
 Pigott, In re, 19 L. T., N. S. 114— 
 Ir. Ch. 
 
 Previous Mat of Attorney- General.'] 
 — It is in the discretion of the at- 
 torney-general to grant his fiat for 
 a writ of error for a misdemeanor, 
 and therefore, if he has exercised 
 his discretion by refusing to grant 
 his fiat, the court will not order him 
 to grant it. Reg. v. Newton, 4 El. 
 & Bl. 869 ; 1 Jur., N. S. 591 ; 24 
 L. J., Q. B. 246 ; S. P. and S. C, 
 nom. Newton, In re, 16 C. B. 97. 
 
 Where, in a colony, a person has 
 been convicted of a criminal oifence, 
 and is in execution of a sentence 
 passed for that ofienoe, no writ of 
 error will be granted to bring up 
 
 the record of conviction, unless the 
 attorney -general has first issued his 
 fiat for a writ of error. Nor will a 
 certiorari be granted in general to 
 remove a record under such circum- 
 stances in order that a writ of error 
 may afterwards be brought. Nor 
 will a habeas corpus be granted 
 under such circumstances to bring 
 up the prisoner. Reg. v. Lees, 27 L. 
 J., Q. B. 403 ; EL, Bl. & El. 828. 
 16 & 17 Vict. c. 32, "imposes 
 " terms and conditions for bringing 
 " writs of error upon judgments for 
 " misdemeanors. " 
 
 Practice ow.J — The court dispens- 
 ed with the attendance of a plaintiff 
 in error, to crave oyer of the record 
 of an indictment for bigamy, for 
 the purpose of assigning errors, 
 where it appeared that he was a 
 resident in Australia, where he had 
 been for the last thirty years ; that 
 be was sixty-six years of age, and 
 subject to paralytic attacks, and 
 that he could not make the journey 
 to this country without injury to 
 his health, and without considerable 
 pecuniary loss. Murray v. Reg. (in 
 error), 3 D. & L. 100 ; 7 Q. B.700 ; 
 9 Jur. 410 ; 14 L. J., Q. B. 357. 
 
 Where the prosecutor and his at- 
 torney were both dead, the court 
 directed service of the rule to join 
 in error to be made, by sticking it 
 up in the crown-office, and serving 
 a copy on the solicitor to the Treas- 
 ury, lb. — ^B. C. — Coleridge. 
 
 Qusere, whether a writ of error in 
 felony can be sued out in fonnS. pau- 
 peris? Reg. V. Stokes, 3 C. & K. 
 189. 
 
 Upon a motion by a plaintiff in 
 error under 16 & 17 Vict. c. 32, s. 
 3, for reversal of judgment upon an 
 indictment for a misdemeanor, he 
 must be jsersonally present in court. 
 Howards. Reg. (in error), 10 Cox, 
 C. C. 54 ; 13 W. R. 316 ; 11 L. T., 
 N. S. 629— Q. B. 
 
 The rule is nisi only, and should 
 be served on the officer of the court 
 from which error is brought, and 
 
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ERROR., 
 
 593 
 
 not on the prosecutor or his attorney. 
 
 Form of the praecipe and petition 
 with tlie secretary of state's tiat nec- 
 essary when a writ of error in a 
 criminal case to the House of Lords 
 is sued out. Meg. v. Lavey, 2 Den. 
 C. C. 512, n. 
 
 One of two persons convicted of 
 conspiracy may bring error on the 
 judgment of conviction without the 
 other. Wright v. Heg. (in error), 
 14 Q. B. 148 ; 11 Jur. 103 ; 16 L. 
 J., Q. B. 10. 
 
 Upon a motion to quash a writ of 
 error, under s. 5 of 8 & 9 Vict. c. 
 68, it is not necessary that the de- 
 fendants should have been previous- 
 ly ruled to assign errors. Heg. v. 
 Broome, 2 B. C. Rep. 259 ; 5 D. & 
 L. 607 ; 12 Jur. 838; 17 L. J., Q. 
 B. 208— Coleridge. 
 
 Where judgment of non pros, 
 has been signed by the defendant in 
 error, in an indictment for a misde- 
 meanor, because the plaintiff in er- 
 ror has not assigned errors in prop- 
 er time, the defendant in error has 
 a right to enter the proceedings and 
 judgment of non pros, upon the 
 judgment roll in the court below. 
 Heg. V. -King, 9 Jur. 551 ; 14 L. J., 
 Q. B. 86. 
 
 Writ of error to reverse a judg- 
 ment of outlawry of the plaintiff for 
 not appearing to receive judgment 
 upon an indictment on which he 
 had been convicted by his own con- 
 fession, and which had been remov- 
 ed into the Queen's Bench by certio- 
 rari. Errors were assigned in the 
 process of outlawry, and that the 
 outlawry was founded on the judg- 
 ment of conviction of the matters in 
 the indictment, whereas certain of 
 the counts were bad. Joinder in er- 
 ror, that neither in the outlawry 
 nor in the pronouncing of the judg- 
 ment of conviction is there error. 
 Upon application on behalf of the 
 prosecutor, that the outlawry, which 
 was admitted to be bad, should be 
 reversed, and that the plaintiff in 
 error should be brought up for judg- 
 
 ment : — Held, that the court could 
 only reverse the outlawry, and 
 could not entertain the question of 
 error in the record of conviction. 
 Wright V. Reg. (in error), 14 Q. B. 
 148 ; 11 Jur. 103 ; 16 L. J., Q. B. 
 10. 
 
 Where a writ of error issued on 
 the application of a defendant to 
 bring up a transcript of the record 
 and proceedings on an indictment 
 for perjury, with all things touching 
 the same, and the writ was returned, 
 and the plaintiff in error assigned 
 errors, he could not afterwards ob- 
 ject that the proceedings on a rule 
 to arrest judgment, which had been 
 discussed in the court below, were 
 not mentioned in the return. Jieg. 
 V. JDunn, (in error), 12 Q. B. 1026 ; 
 18 L. J., M. C. 41— Exch. Cham. 
 
 Where a writ of error is sued out 
 upon a judgment of the Queen's 
 Bench in a criminal prosecution, for 
 the purpose of enabhng the parties 
 to effect a compromise of such pros- 
 ecution, that court has the power, 
 under the 12 & 13 Vict. o. 109, s. 
 39, to set aside such writ of error, 
 and will exercise that power. Heg. 
 V. AUeyne, Dears. C. C. 505 ; 4 El. 
 & Bl. 186 ; 1 Jur., N. S. 373. 
 
 After the writ of error has been 
 so set aside by the Queen's Bench, 
 the court of Exchequer Chamber 
 will set aside a judgment, signed 
 thereon by order of a judge, for 
 want of a joinder in error. AUeyne 
 V. Heg. (in error), Dears. C. C. 505 ; 
 1 Jur., ISr. S. 869 ; 24 L. J., Q. B. 
 282— Exch. Cham. 
 
 When error is brought on a judg- 
 ment for felony, and the crown does 
 not join in error, the defendant will 
 be discharged. Hex v. Howes, 7 A. 
 & E. 60, n. ; 3 K & M. 462. 
 
 So in error upon a conviction for 
 a misdemeanor. lb. 
 
 Where error is brought by a per- 
 son convicted of felony, from the 
 Queen's Bench to the Exchequer 
 Chamber, the general rules for gov- 
 erning the proceedings in error, in 
 civil cases, do not apply ; but the 
 
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594 
 
 ERROR AOT) APPEAL. 
 
 prisoner must be brought up to the 
 court, to pray oyer of the record, 
 and to assign errors by delivering 
 them in writing to the officer of the 
 court, and must be present during 
 the argument and the giving judg- 
 ment. The counsel representing 
 the attorney-general for the crown 
 may, if he pleases, orally join in er- 
 ror, immediately on the assignment 
 of errors being delivered in. Man- 
 sell V. Reg. (in error), 8 El. & Bl. 
 54; Dears. &. B. C. C. 375 ; 4 Jur., 
 N. S. 432 ; 27 L. J.,M. C. 4— Exch. 
 Cham. 
 
 Recognizances to Prosecute. '[ — It 
 is ordered that there be laid before the 
 court of Queen's Bench, on the first 
 crown paper day in every term, a 
 list of the several cases in which 
 recognizances have been filed to 
 prosecute writs of error in misde- 
 meanor returnable in that court, to- 
 gether with the names of the several 
 cases in which default has been 
 made in prosecuting such writs of 
 error, according to the course and 
 practice of that court. Reg. Gen., 
 Q. B., E. T. 1 6 Vict., 1 6 April., 1853 ; 
 lEl. & Bl. 693. 
 
 A prisoner in custody, under a 
 sentence of imprisonment for two 
 years on a conviction for a misde- 
 meanor, was discharged on bringing 
 a writ of error and entering into a 
 recognizance to prosecute the writ 
 with effect. No notice was given 
 to the prosecutor, nor was the rec- 
 ognizance duly filed in the crown 
 office. He was therefore ordered to 
 be recommitted. The judge's war- 
 rant, under which he was" retaken, 
 directed his apprehension and re- 
 committal, stating it to be " in ex- 
 ecution of the judgment in the pros- 
 ecution " : — Held, that the warrant 
 was good, and that it was not nec- 
 essary to state on the face of it how 
 long the renewed imprisomnent was 
 to continue. Dugdale v. Reg. (in 
 error), 3 C. L.R. 74; 24 L. J., M. 
 C. 55 — ^B. C. — Crompton. 
 
 A defendant, being convicted and 
 
 sentenced to imprisonment, at the 
 sessions, for misdemeanor, brought 
 error in the Queen's Bench, and af- 
 terwards in the Exchequer Cham- 
 ber. In the latter court he entered 
 into a recognizance, conditioned, in 
 case of the affirmance of the judg- 
 ment, to surrender himself personal- 
 ly, to be. dealt with " as our Court 
 of Exchequer Chamber may order." 
 This recognizance was filed in the 
 Queen's Bench. The defendant was 
 discharged out of custody by a j udge 
 at chambers. On motion in the 
 Queen's Bench to apprehend and 
 recommit him : — ^Held, that the rec- 
 ognizance was before the court, al- 
 though not appearing in the aflida- 
 vits ; and that the recognizance was 
 not in conformity with 8 & 9 Vict, 
 c. 68, s. 1, and that the rule must 
 be made absolute.' Dugdale v. Reg. 
 (in error). Dears. C. C. 254 ; 2 El. 
 & Bl. 129 ; 17 Jut. 1097. 
 
 Paper RooJcs.] — A defendant in 
 error not having delivered paper 
 books to two of the judges, in pursu- 
 ance of rule 23 of the regulations in 
 the crown-office, and which rule 
 concludes by saying that "judg- 
 ment shall be given by the court 
 against the party neglecting to de- 
 liver paper books to the judges, if 
 the court shall so please." The 
 court nevertheless directed the ar- 
 gument to proceed. SiU v. Reg. 
 (in error), 17 Jur. 208, n. : S. P. 16 
 L. T., N. S. 494. 
 
 2. When an Appeal lies. 
 
 It is contrary to the policy of the 
 English law that there should be an 
 appeal in cases of felony. Edvljee 
 JByramjee, Ex parte, 5 Moore, P. 
 C.C. 276; llJur. 855. 
 
 3. Court of Criminal Appeal. 
 
 Reservation of Points ofZaw.l 
 —The 11 & 12 Vict. c. 78, gives 
 no jurisdiction to the Court for 
 Crown Cases Reserved, to hear a 
 case stated from a criminal court on 
 
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RULES AISTD PRACTICE. 
 
 595 
 
 the sufficiency of an indictment, af- 
 ter judgment on demurrer to the in- 
 djctment. Reg. v. Faderman, 4 
 New Sess. Cas. 161 ; T. & M. 286 • 
 2 C. & K. 353 ; 14 Jur. 377 ; 19 
 L. J., M. C. 147. 
 
 The court has only jurisdiction 
 after a conviction over what takes 
 place dui-ing the trial. Ih. 
 
 A question raised in the court be- 
 low, in arrest of judgment, is a ques- 
 tion arising on the trial, and prop- 
 erly reserved. Reg. v. Martin, 3 
 New Sess. Cas. 575 ; 1 Den. C. C 
 398; T. &M. 78; 13 Jur. 368 ; 18 
 L. J., M. C. 137. 
 
 The recorder of a borough has 
 power to reserve questions of law 
 for the consideration of the judges. 
 Reg. V. Masters, 3 New Sess. Cas. 
 326 ; 2 C. & K. 930 ; T. & M. 1 ; 
 1 Den. C. C. 332 ; 12 Jur. 942. 
 
 The court is bound to examine 
 the validity of an indictment, though 
 no question is reserved upon it. 
 Reg. V. Webb, T. & M. 23 ; 1 Den. 
 C. C. 338 ; 2 C. & K. 933 ; 13 Jur. 
 42; 18L. J.,M. C.39. 
 
 The court will only consider 
 questions of law which shall havg 
 arisen on the trial of a prisoner. 
 Req. V. Clark, 1 L. R., C. C. 54 ; 
 12 Jur., N. S. 946 ; 36 L. J., M. C. 
 16 ; 15 W. R. 48 ; 15 L. T., N. S. 
 190. 
 
 Where a man was indicted for a 
 misdemeanor and pleaded guilty, 
 the court declined to consider wheth- 
 er he ought to have been indicted 
 for felony on the same facts. Ih. 
 
 The 11 & 12 Vict. c. 78, applies 
 to points of law arising upon trials, 
 under special commissions, and au- 
 thorizes the court to reserve points 
 of law arising at the trial. Reg. v. 
 Bernard, 1 F. & F. 240. 
 
 On a charge of murder on the 
 high seas, on board a British ship 
 afloat, the deceased having been 
 thrown out of a foreign sliip in a 
 foreign port, the question whether 
 all the facts must not be averred in 
 each count of the indictment, in 
 order to give a judge sitting under 
 
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 an ordinary commission of oyer and 
 terminer and general gaol delivery 
 jurisdiction to try the offence as it 
 arose on the record, is a point not 
 to be reserved. Reg. v. Menham, 1 
 F. & F. 369— Pollock. 
 
 What a jury says in recommend- 
 ing a prisoner to mercy ought not 
 to be made the subject of a case re- 
 served. Reg. V. TrebUcoch, Dears. 
 &B. C. C. 453; 4Jur., N. S. 123; 
 27 L. J., M. C. 103. 
 
 On a trial for murder, the name 
 of A., a juror on the panel, was 
 called; B., another juror on the 
 same panel, appeared by mistake, 
 answered to the name of A., and was 
 sworn as a juror. The prisoner 
 was convicted. The circumstance 
 that B. had answered for A. was 
 not discovered till the next day, 
 when the judge, being informed of 
 it, reserved the question as to the 
 effect of the mistake on the trial : 
 — Held, that the conviction ought 
 not to be set aside, on the ground 
 that there had been no mistrial, and 
 that the court had no jurisdiction 
 over the case. Reg. v. Mellor, 27 
 L. J., M. C. 121. 
 
 The court cannot entertain ques- 
 tions of mere practice. Reg. v. 
 Stubbs, 1 Jur., N". S. 1115. 
 
 Rail o?i.] — Where a case has 
 been reserved upon a conviction for 
 an assault with intent to commit a 
 felony, the court will not deem it- 
 self bound to admit the prisoner to 
 bail until the decision of the point 
 reserved, even although the offence 
 is only a misdemeanor, and the pris- 
 oner was admitted to bail of right 
 previously to the trial. Reg. v. Bird, 
 5 Cox, C. C. 11. 
 
 4. Rules and Practice. 
 
 Case.\ — Where any case shall be 
 transmitted by a court of oyer and 
 terminer, or gaol delivery, or court 
 of quarter sessions, for the consid- 
 eration of the court, the original 
 case, signed by the judge or com- 
 missioner, or chairman of sessions, 
 
596 
 
 ERROR AND APPEAL. 
 
 reserving the question of law, and 
 seventeen copies of such case, one 
 for each judge and one for each 
 party, shall be delivered to the clerk 
 of the court at the Exchequer 
 Chamber, Westminster, at least four 
 days before the day appointed for 
 the sitting of the court. Reg. Gen. 
 T. T. 13 Vict. 1st June, 1850, Exch. 
 Cham. ; 1 Den.,C. C, App. ix.-xi. ; 
 T. & M., App. vii. 
 
 Every case transmitted for the 
 consideration of the court is brieily 
 to state the question or questions of 
 law reserved, and such facts only 
 as raise the question or questions 
 submitted ; if the question turns 
 upon the indictment, or upon any 
 count thereof, then the case must 
 set forth the indictment, or the par- 
 ticular count. lb. 
 
 No case to be heard u^on any de- 
 murrer to the pleadings. lb. 
 
 Every case to state whether judg- 
 ment on the conviction was passed 
 or postponed, or the execution of 
 the judgment respited, and whether 
 the person convicted is in prison, or 
 has been discharged on recogniz- 
 ance of bail, to appear and receive 
 judgment, or to render himself in 
 execution. lb. 
 
 When any case is intended to be 
 argued by counsel or by the par- 
 ties, notice thereof to be given to 
 the clerk of the court, at least two 
 days previously to the sitting of the 
 court. lb. 
 
 With every case delivered to the 
 judges of the court (except such 
 cases as shall be reserved by such 
 judges), the fee payable to the clerks 
 of the judges shall not exceed the 
 fee payable on demurrer and other 
 paper books, as contained in the 
 table of fees allowed and sanctioned 
 by the judges, pursuant to 1 Vict. 
 C.30. lb. 
 
 The court expects cases reserved 
 to be submitted in a complete form, 
 and will ordinarily refuse to send 
 back a case for amendment. Meg. 
 V. HoUoway, 1 Den. C. C. 370 ; 3 
 New Sess. Cas. 410 ; T. «fc M. 40 ; 
 
 13 Jur. 86 ; 18 L. J., M. C. 60. 
 
 Cases are not to be lengthy nar- 
 ratives of the facts. Heg. v. Stear, 
 13 Jur. 41 ; 18 L. J., M. C. 30— C. 
 C. R. 
 
 The court, for the purpose of as- 
 sisting its judgment, will look at 
 the indictment, although not set out 
 in the case. Meg. v. Williams, T. 
 & M. 382 ; 2 Den. C. C. 61 ; 20 L. 
 J., M. C. 106. 
 
 The judges will hear the argu- 
 ment of points reserved, although 
 they appear on the record, and were 
 taken in arrest of judgment. Meg. 
 V. Martin, 2 G. &' K. 950 ; 3 Cox, 
 C. C. 447 ; 1 Den. C. C. 398. 
 
 If a counsel should think that 
 any material point raised at the 
 trial has been omitted in the state- 
 ment of the case, it would be prop- 
 er for him to communicate with the 
 judge who reserved the case, and 
 suggest any amendment that in his 
 judgment may be necessary. Meg. 
 V. Smith, T. & M. 214 ; 14 Jur. 92. 
 
 The court will not consider an 
 objection which has not been re- 
 served, even though it is fairly de- 
 ducible from the case itself. Jb. 
 
 The court will not go into any 
 matter of evidence which occurred 
 at the trial, if it is not stated in the 
 case. lb. 
 
 Where a case reserved has been 
 restated by oi'der of the court, an 
 application, supported by affidavit, 
 to have it again restated will be re- 
 fused. Meg. V. Studd, 14 W. R. 
 806 ; 14 L. T.,K S. 633— C. C.R. 
 
 Signing.'] — Where the assizes are 
 held before two judges, and the one 
 of them who tries a criminal case, 
 after reserving a point for the con- 
 sideration of the Court of Criminal 
 Appeal, dies before the case is stat- 
 ed, the other judge may state and 
 sign the case. Meg. v. Feather- 
 stone, Dears. C. C. 369 ; 18 Jur. 538; 
 23 L. J., M. C. 127. 
 
 Digitized by Microsoft® 
 
 — ^'.] — Where a case re- 
 served does not, in the opinion of 
 
PUNISHMENT— PENAL SERVITUDE. 
 
 597 
 
 the counsel who were in it, fairly 
 raise all the points that were in 
 issue, the proper course is to apply- 
 to the judge reserving to amend it. 
 Keg. V. Smith, 4 Cox, C. C. 42. 
 
 The court will not send a case 
 back for amendment on the mere 
 application of counsel ; but will do 
 so if on the argument it appears that 
 it is imperfectly stated. Req. v. 
 HUtmi, Bell, C. C. 20. 
 
 But the court will not send back 
 a case to be restated upon an objec- 
 tion which is beside the merits. 
 Reg. V. Brummitt, 8 Cox, C. C. 413: 
 L. & C. 9 ; 3 L. T., N. S. 679. 
 
 Semble, per Cresswell, J., that 
 after verdict the court has no power 
 to amend a count so as to make a 
 jury party to the finding. Meg. v. 
 Harris, Dears. C. C. 344. 
 
 Argument and Judgment. J — 
 Where there is a difference of opin- 
 ion amongst the judges upon a 
 question of law, the case reserved will 
 be argued before the fifteen judges; 
 but where the court differs upon a 
 question of fact only, judgment 
 will be given according to the opin- 
 ion of the majority that a convic- 
 tion should be quashed. B,eg. v. 
 BurreU, L. & C. 354 ; 12 W. R. 
 149 ; 9 L. T., N. S. 426. 
 
 On the argument of a case re- 
 served before the Court of Criminal 
 Appeal, the counsel for the defend- 
 ant must begin. Reg. v. QateFvl- 
 ford. Dears. & B. C. C. 74. 
 
 Counsel will be heard in support 
 of a conviction on a case reserved, 
 though no one appears on behalf of 
 the prisoner. Reg. v. Martin, 1 
 Den. C. C. 398 ; 3 New Sess. Cas. 
 575 ; T. & M. 78 ; 13 Jur. 368; 18 
 L. J., M. C. 137. 
 
 A counsel who has appeared for 
 a prisoner at the trial, but has not 
 been instructed to appear for him in 
 the Court of Appeal, may as am- 
 icus curiae cite authorities for the 
 information of the court, but will 
 not be allowed to argue. Reg. v. 
 
 Thomas, 12 W. R. 108 ; 33 L. J., 
 M. C. 22 ; 9 L. T., N. S. 488. 
 
 Costs on.] — The judge who tries 
 a prisoner has power under 7 Geo. 
 
 4, c. 64, s. 22, to allow the costs of 
 the prosecution on the hearing of a 
 case reserved for the court for con- 
 sideration of crown cases ; and the 
 officer of that court will tax and 
 ascertain such costs, and certify the 
 amount to the officer of the court 
 below. Reg. v. Lewis, Dears. & 
 
 B. C. C. 326 ; 7 Cox, C. C. 406 ; 
 
 5. P., Reg. V. Gluderoy, 3 C. & K. 
 205. 
 
 The court which has been direct- 
 ed to pass sentence on a pi-isoner, 
 after a point reserved for the decis- 
 ion of the Court of Criminal Ap- 
 peal, has power to allow the costs 
 incurred in the latter court, and up- 
 on taxation, under an order to that 
 effect, the briefs and fees of two 
 counsel will be allowed. Reg. v. 
 Woolley, 4 Cox, C. C. 452 —Wil- 
 liams. 
 
 The court having no taxing offi- 
 cer, the costs of proceedings in that 
 court must be taxed in the court 
 below. Reg. v. Dolan, Dears. C. 
 
 C. 436 ; 1 Jur., N. S. 72 ; 24 L. J., 
 M. C. 59. 
 
 The court will not entertain a 
 question of costs which is not with- 
 in their jurisdiction, although it is 
 expressly agreed by a case reserved 
 that the court should have the same 
 power, with respect to such costs, 
 as the judge could legally have ex- 
 ercised at the trial. Reg. v. Horn- 
 sea, Dears. C. C. 291. 
 
 LI. Punishment. 
 
 1. Fenal Servitude, 597. 
 
 2. Returning therefrom, 598. 
 
 1. Penal Servitude. 
 20 & 21 Vict. c. 3, amends the 
 16 & 17 Vict. c. ^^, and abolishing 
 
 Digitized by Microsoft® 
 
598 
 
 PUNISHMENT. 
 
 transportation, substitutes penal pun- 
 ishment. 
 
 27 & 28 Vict. 0. 47, amends the 
 Penal Servitude Acts, 16 & 17 
 Vict. c. 99, and 20 & 21 Vict. c. 3. 
 By 32 & 33 Vict. c. 99, the Hab- 
 itual Criminals Act, 1869, s. 8, 
 " where any person is convicted on 
 " indictment of any felony not pun- 
 " ishable with death also, or the of- 
 " fence of uttering false or counter- 
 " feit coin, or of possessing counter- 
 " feit gold or silver coin, or the of- 
 " fence of obtaining goods or money 
 " by false pretences, or the offence 
 " of conspiracy to defraud, or mis- 
 " demeanor under 24 & 25 Vict. c. 
 " 96, s. 58, and he be proved to 
 " have been previously convicted of 
 " robbery, theft, assault with intent 
 " to rob, or obtaining goods or 
 " money by false pretences, uttering 
 " false or counterfeit coin, either 
 " before or after the passing of the 
 " act, then, in addition to any other 
 " punishment which may be award- 
 " ed to him, it shall be deemed to 
 " be part of the sentence passed on 
 " him, unless otherwise declared by 
 " the court, that he is to be subject 
 " to the supervision of the police as 
 " after mentioned for a period of 
 " seven years, or such less period as 
 " the court shall direct, commenc- 
 " ing from the time at which he is 
 " convicted, and exclusive of the 
 " time during which he is undergo- 
 " ing his punishment. 
 
 " Where any person is subject to 
 
 " the supervision of the police, he 
 
 " shall be guilty of an offence pun- 
 
 " ishable (on summary conviction 
 
 " before two or more justices or a 
 
 " stipendiary magistrate) with im- 
 
 " prisonment, with or without hard 
 
 " labour, for a term not exceeding 
 
 " one year, under the following cir- 
 
 " cumstances, or any of them : 
 
 " First. If, on his being charged 
 
 " by a constable or police offi- 
 
 " cer with getting his liveli- 
 
 " hood by dishonest means, he 
 
 " fails to make it appear to the 
 
 "justices or magistrate before 
 
 Digitized by Microsoft® 
 
 " whom he is brought that he 
 "is not getting his livelihood 
 " by dishonest means : 
 
 " Secondly. If he is found by any 
 " constable or police officer in 
 " any place, whether public or 
 " private, under such circum- 
 " stances as to satisfy the jus- 
 " tices or magistrate before 
 " whom he is brought that he 
 " was about, to commit or to 
 " aid in the commission of any 
 " crime punishable on sum- 
 " mary conviction or indict- 
 
 ■ " ment, or was waiting for an 
 " opportunity to commit or aid 
 " in the commission of any such 
 " crime : 
 
 " Thirdly. If he is found by any 
 " person in or upon any dwell- 
 " ing -house, or any building, 
 " yard or premises, being par- 
 " eel of or attached to such 
 " dwelling-house, or in or upon 
 " any shop, warehouse, count- 
 " ing-house, or other place of 
 " business, or in any garden, 
 " orchard, pleasure-ground or 
 " nursery-ground, without be- 
 " ing able to account to the 
 " satisfaction of the justices or 
 " magistrate before whom he 
 " is brought for his being found 
 " on such premises." 
 
 2. Beturrdng therefrom. 
 5 Geo. 4, c. 84; 11 Geo. 4^1 
 WiU. 4, c. 39 ; 4 cfc 5 Will. 4, c. 67 ; 
 
 1 Vict. c. 90 ; 44-5 Vict. c. 56 ; 16 
 ^ 17 Vict. c. 99. 
 
 By the word transportation in 8 
 Geo. 3, c. 15, was meant not mere- 
 ly the conveying of the felon to the 
 place of transportation, but his be- 
 ing so conveyed and remaining 
 there during the term for which he 
 was ordered to be transported ; and, 
 therefore, a felon attainted was not 
 by that statute restored to his civil 
 rights till after the expiration of the 
 term for which he was ordered to be 
 so transported. BuUock v. Dodds, 
 
 2 B. & A. 258. 
 Where a prisoner was convicted 
 
RETUKNING THEREFROM. 
 
 599 
 
 of pei;)ury alf the assizes at Chester, 
 and the sentence of transportation 
 was entered on the record as fol- 
 lows : — « Wherefore, all and sin- 
 gular the premises being seen by 
 the justices here, and fully under- 
 stood, it is therefore ordered that he, 
 the said L. K., be transported to the 
 coast of New South Wales, or some 
 one or other of the islands adjacent, 
 for and during the term of seven 
 years": — Held, on error, that this 
 was no judgment, but merely an or- 
 der, liex V. Kenworthy, 3 D. & R. 
 173 ; 1 B. & C. 711. 
 
 A judgment entered upon the 
 record, that J. M. " be transported 
 beyond the seas for the term of ten 
 years, from the 8th day of August 
 instant," without specifpng some 
 place of transportation, " not in 
 Europe," is coiTect and valid, not- 
 withstanding. Martin v. Reg. 3 
 Cox, C. C. 319. 
 
 The king's sign manual may be 
 given in evidence by the prisoner, 
 on an indictment for returning from 
 transportation ; and if not revoked, 
 and the condition is literally, though 
 not substantially, compUed with, it 
 will discharge the prisoner from that 
 indictment. Rex v. Miller, 2 W. 
 Bl. 797 ; 1 Leach, C. C. 74. 
 
 A judgment of transportation for 
 fourteen years, if bad for excess, is 
 bad in toto, and cannot operate as 
 a good judgment of transportation 
 for seven years. Rex v. JSllis, 8 D. 
 & R. 173. 
 
 Where, a court of quarter ses- 
 sions pa*ed an erroneous judgment 
 of transportation, the court would 
 not send it back to be amended, 
 but would reverse it on writ of er- 
 ror, before 11 & 12 Vict. c. 78, s. 5. 
 lb. 
 
 An indictment for being at large 
 after an order of transportation, 
 stated that the prisoner was cap- 
 itally convicted at the assizes of 
 1818; and that mercy was extend- 
 ed to him on condition of his being 
 transported for life to some parts 
 beyond the seas ; and that he was 
 
 thereupon ordered to be transported 
 to New South Wales, or to some of 
 the islands adjacent; and it ap- 
 peared that the condition on which 
 mercy was granted was not gen- 
 eral, but specific, that he should be 
 transported to New South Wales, 
 or some of the islands adjacent : — 
 Held, a fatal variance. Rex v. J^itz- 
 patrick, R. & R. C. C. 512. 
 
 An indictment on 56 Geo. 3, c. 
 27, s. 8, for being at large after 
 sentence of transportation, should 
 set forth the effect and substance of 
 the former conviction ; so likewise 
 should the certificate of the former 
 conviction. Rex v. Watson, R. & 
 R. C. C. 468 ; S. P., Rex v. Svt- 
 cliffe, R. & R. C. C. 469, n. 
 
 A prisoner convicted of a capital 
 crime, whose sentence is respited 
 during the king's pleasure, and who, 
 on having received pardon on con- 
 dition of transportation for Ufe, is 
 afterwards found at large in Great 
 Britain, without lawful cause, will 
 be referred back to his original sen- 
 tence. Rex V. Madan, 1 Leach, C. 
 C. 223. 
 
 A return to a habeas corpus to 
 bring up two prisoners detained in 
 Millbank prison, set out an act of 
 the Royal Court of Jersey, where- 
 by they were convicted of burglary 
 by that court (which was alleged 
 to be a competent court to try and 
 punish that crime), and sentenced 
 to be transported to such place as 
 her Majesty in council should order. 
 It also set out an order in council 
 directing the place of their trans- 
 portation, and a warrant of the sec- 
 retary of state for their removal to 
 Millbank prison, in order to carry 
 the sentence into efifect, and as au- 
 thority to the keeper of that prison 
 to receive them : — Held, that the 
 court was bound to presume that 
 the sentence being passed by a 
 court of competent jurisdiction, and 
 unreversed, was warranted by law 
 and vaUd. Reg. v. Brenan, 10 Q. 
 B. 492; 11 Jur. 775; 16 L. J., Q. 
 B. 289. 
 
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600 
 
 ESCAPE, RESCUE, AND PRISON BREACH. 
 
 The judge, beiore whom a pris- 
 oner is tried for returning from 
 transportation, has power to order 
 the county, treasurer to pay the 
 prosecutor the reward under 5 Geo. 
 4, c. 84, s. 22. Reg. v. Emmons, 
 2 M. & Rob. 279 — Coleridge. S. 
 P., Reg. V. Ambury, 6 Cox, C. C. 
 79— Williams. 
 
 On the trial of an indictment 
 against a person for being at large 
 without lawful cause before the ex- 
 piration of his term of transporta- 
 tion, a certiiicate of his former con- 
 viction and sentence was put in : it 
 purported to be that of J. G., dep- 
 uty clerk of the peace for the 
 county of L., and clerk of the 
 courts of general quarter sessions 
 of the peace holden in and for the 
 said county, and having the cus- 
 tody of the records of the courts 
 of general quarter sessions of the 
 peace holden in and for the said 
 county. It was proved that Mr. 
 H. was clerk of the peace of L., 
 and that he had three deputies, 
 partners, of whom J. G., who had 
 signed the certificate, was one ; and 
 that each of them acted as clerk of 
 the peace ; and that for forty years 
 they had kept the sessions records 
 at their office: — Held, sufficient 
 proof of the conviction and sen- 
 tence under 5 Geo. 4, c. 84, s. 24. 
 Reg. V. Jones, 2 C. & K. 524— 
 Coltman. 
 
 Where a prisoner was indicted 
 imder 5 Geo. 4, c. 84, s. 22, for 
 being found at large in England 
 before the expiration of a term for 
 which he had been sentenced to be 
 transported: — Held, that the fact 
 of such sentence being in force at 
 the time he was so found at large, 
 was sufficiently proved by the cer- 
 tificate of his conviction and sen- 
 tence, the judgment remaining un- 
 reversed ; although, on the face of 
 such certificate, it appeared that 
 the sentence was one which could 
 not have been inflicted on him for 
 the ofience of which, according to 
 such certificate, he had been com- 
 
 mitted. Reg. V. Finney, 2 C. & 
 K. 774— Alderson. 
 
 Under 9 Vict. c. 24, s. 1, the 
 judge had the power of reducing 
 the punishment of transportation 
 for life under 4 & 5 Will. 4, c. 67, 
 for the ofience of being at large 
 before the expiration of the term 
 for which the prisoner had been 
 ordered to be transported, and might 
 under the latter statute sentence 
 the prisoner to be transported for 
 any term less than seven years after 
 the imprisonment, directed by the 
 earlier statute. Reg. v. Lamb, 3 
 C. & K. 96— WilUams. 
 
 A certificate of previous convic- 
 tion for felony, prepared under 7 
 & 8 Geo. 4, c. 28, s. 11, is good 
 evidence of his conviction and sen- 
 tence, on an indictment for return- 
 ing from transportation before the 
 expiration of a sentence under 5 
 Geo. 4, c. 84. Req. v. Ambury, 6 
 Cox, C. C. 79— WiUiams. 
 
 In an indictment under 5 Geo. 4, 
 c. 84, s. 22, it is necessary to aver 
 that the prisoner was feloniously at 
 large before the expiration of his 
 sentence, and an indictment omit- 
 ting the word "feloniously" is bad. 
 Reg. V. Home, 4 Cox, C. C. 263. 
 
 LH. Escape, Rescue, and Peison 
 Bebach. 
 
 4 Geo. 4, c. 64 ; 7 <f 8 Geo. 4, 
 c. 28 ; 1 <* 2 Geo. 4, c. 88 ; 7 WiU. 
 4 cfe 1 Vict. c. 91 ; 7 WiU. 4 <& 1 
 Tict. c. 90 ; 28 f6 29 Vict. c. 126. 
 
 A prison-breach, or rescue, is a 
 common-law felony, if the person 
 breaking out of prison, or rescued, 
 is a convicted felon ; and it is pun- 
 ishable as a common law felony by 
 imprisonment. Rex v. Hcmoell, R. 
 & R. C. C. 458. 
 
 The offence of aiding a prisonBr 
 at v/ar to escape is not complete, if 
 such prisoner is acting in concert 
 with those under whose charge he 
 is, merely to detect the defendant, 
 
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PARDON. 
 
 601 
 
 and has no intention to escape. Hex 
 V. Martin, R. & R. C. C. 196. 
 
 An indictment at common law, 
 for aiding a prisoner's escape, should 
 state that the party knew of his of- 
 fence. Rex V. Yovng, 1 Russ. C. 
 ifcM. 291. 
 
 A delivery of instruments to a 
 prisoner to facilitate his escape from 
 gaol was within 16 Geo. 2, c. 31, 
 although he had been pardoned of 
 the offence of which he was con- 
 victed on condition of transporta- 
 tion. Bex V. SJmw, R. & R. C. C. 
 526. 
 
 Throwing down, in attempting 
 to escape, loose bricks at the top of 
 a prison wall, placed there to im- 
 pede escape and give alarm, is a 
 prison - breach, though they are 
 thrown down by accident. Rex v. 
 Mamiea, R. & R. C. C. 458. 
 
 A warrant of a justice of the 
 peace to apprehend a party, found- 
 ed on a certificate of the clerk of 
 the peace, that an indictment for a 
 misdemeanor had been found against 
 such party, is good, and therefore if 
 upon such a warrant the party is 
 arrested and afterwards rescued, 
 those who are guilty of the rescue 
 may be convicted of a misdemean- 
 or. Rex V. Stokes, 5 C. & P. 148 
 —Park. 
 
 It is a misdemeanor, indictable 
 at common law, to aid a person to 
 escape from custody, though he 
 was confined under the remand of 
 the commissioners for the reUef of 
 insolvent debtors, and not on any 
 criminal charge. Reg. v. Allan, 
 Car. & M. 295; 5 Jur. 296— Ers- 
 kine and Wightman. 
 
 By 4 Geo. 4, c. 64, s. 43, if any 
 person shall deliver to a prisoner in 
 any prison any instrument proper 
 to facilitate his escape, such person 
 shall be deemed to have delivered 
 it with intent to aid and assist such 
 prisoner to escape ; and if any per- 
 son shall by any means whatever 
 aid and assist any prisoner to es- 
 cape from any prison, every person 
 so offending, whether an escape be 
 
 actually made or not, shall be 
 guilty of felony : — Held, that, in 
 an indictment under this section, it 
 was not necessary to set out the 
 means which bad been used by the 
 defendant to assist the prisoner to 
 escape. Reg. v. HoUoway, 15 Jur. 
 825 ; S. G. nom. HoUoway v. Reg. 
 (in error), 2 Den. C. C. 287 ; 17 Q. 
 
 B. 319. 
 
 The act of aiding and assisting 
 being a felony by 4 Geo. 4, c. 64, s. 
 43, the defendant might be indicted 
 before the principal had been tried ; 
 and the prosecution need not be in- 
 stituted within one year after the 
 offence committed, as required by 
 16 Geo. 2, c. 31, s. 4. lb. 
 
 The 28 & 29 Vict. o. 126, s. 37, 
 enacts that any person who, with 
 intent to facilitate the escape of 
 any prisoner, conveys into any pris- 
 on any mask, dress, or other dis- 
 guise, or any letter, or any other 
 article or thing, shall be guilty of 
 felony: — ^Held, that a crowbar came 
 within the words " any other ar- 
 ticle or thing " as used in this sec- 
 tion. Reg. V. Payne, 1 L. R., C. 
 
 C. 27 ; 12 Jur., K S. 476 ; 35 L. 
 J., M. C. 170 ; 14 W. R. 661 ; 14 
 L. T., N.S. 416. 
 
 The forcible rescue of a person 
 from unlawful custody is illegal. 
 Reg. V. Almey, 3 Jur., N. S. 750— 
 Erie. 
 
 Lni. Pabdon. 
 
 A. was, at the Spring Assizes of 
 1846, indicted for stealing a horse 
 on the 26th day of February, 1841. 
 He had, in 1842, been convicted of 
 felony, and sent to the hulks, from 
 which he was discharged in 1846. 
 He produced a certificate of his dis- 
 charge, which stated, that " J. H., 
 who was convicted at Worcester, 
 on the 22nd June, 1842, is this day 
 discharged in consequence of hav- 
 ing received a free pardon " : — 
 Held, that, if this pardon had been 
 regularly proved, it would have 
 
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602 
 
 APPREHENSION AND ARREST. 
 
 been no bar to the charge of horse- 
 stealing, as the pardon was express- 
 ly confined to another felony. Reg. 
 V. JBarrod, 2 C. & K. 294; 2 Cox, 
 C. C. 242— C. C. R. 
 
 A convict sentenced to death for 
 felony, which sentence was com- 
 muted to transportation for life, re- 
 ceived a conditional free pardon in 
 the penal colony : — Held, that such 
 pardon did not alter the effect of 
 the attainder in vesting his prop- 
 erty in the crown. Church, In re, 
 16 Jur. 517. 
 
 The 6 Geo. 4, c. 84, s. 26, pro- 
 tects felons who have received a 
 remission of their sentences in the 
 enjoyment of all property acquired 
 by them since their conviction, and 
 not merely such property as has 
 been acquired by their own indus- 
 try. Gough V. Davies, 2 Kay & 
 J. 623 ; 25 L. J., Chanc. 677. 
 
 LIV. Appeehension and Areest 
 OF Oppbndees. 
 
 1. Statutes, 602. 
 
 2. By Ccmstables and Private Indi- 
 
 viduals, 602. 
 
 3. Warrant of Justices, 605. 
 
 4. Bench Warrants, 606. 
 
 1. Statutes. 
 
 10 Geo. 4, c. 44, s. 7 ; 2 c6 3 
 Vict. c. 47, ss. 63, 64, 65, 66 ; 6 cfe 
 7 Vict. c. 34 ; 11 eg 12 Vict. c. 42 ; 
 16 & 17 Vict. 0. 118. 
 
 Under the Larceny Act, 24 & 25 
 Vict. c. 96, s. 104 ; for ma;licious 
 injuries to property, 24 & 25 Vict. 
 c. 97, s. 57 ; for offences against 
 the coinage, 24 & 25 Vict. c. 99, s. 
 31 ; for offences against the person, 
 24 & 25 Vict. c. 100, s. 66. 
 
 By 14 & 15 Vict. c. 19, s. 11, 
 " after reciting that doubts have 
 " been entertained as to the author- 
 " ity to apprehend persons found 
 " committing indictable offences in 
 " the night, it is enacted, that it 
 " shall be . lawful for any person 
 
 " whatsoever to apprehend any per- 
 " son who shall be found commit- 
 " ting any indictable offence in the 
 " night, and to convey him or de- 
 " liver him to some constable or 
 " other peace officer, in order to his 
 " being conveyed, as soon as con- 
 " veniently may be, before a justice 
 " of the peace, to be dealt with ac- 
 " cording to few." 
 
 2. By Constables and Private Indi- 
 viduals. 
 
 A constable is not justified in 
 taking a person into custody for a 
 mere assault, unless he is present at 
 the time. Coupey v. SevHey, 2 
 Esp. 540— Eyre. 
 
 Using loud words in the street, 
 though disorderly, is not an offence 
 for which a party should be taken 
 into custody. Hardy v. Murphy, 
 1 Esp. 294— Eyre. 
 
 If a party is turning towards the 
 wall in a street on a particular oc- 
 casion, a watchman is not justified 
 in collaring him to prevent him so 
 doing. Booth v. Haniey, 2 C. & 
 P. 288— Abbott. 
 
 If a constable is preventing a 
 breach of the peace, and any per- 
 son stands in his way to hinder 
 him from so doing, the constable is 
 justified in taking such person into 
 custody, but not in giving him a 
 blow. Levy v. Edwards, 1 C. & 
 P. 40 — Burrough. 
 
 A peace-officer may justify an 
 arrest on a reasonable charge of 
 felony without a warrant, although 
 it should afterwards appear that no 
 felony had been committed ; but a 
 private individual cannot. Samuel 
 V. Payrhe, 1 Doug. 359. 
 
 A constable having reasonable 
 cause to suspect a person of felony 
 may arrest him, though it appeai-s 
 no felony was committed. Beck- 
 with V. PhUly, 6 B. & C. 635 ; 9 
 D. & R. 487; Hobbs v. Brands- 
 comb, 3 Camp. 420 — Ellenborough. 
 
 A constable is justified in appre- 
 hending a person charged on sus- 
 picion of felony, if he has reasoua- 
 
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BY CONSTABLES, ETC. 
 
 603 
 
 ble or probable cause to believe 
 that the party charged is the felon. 
 JJams V. Russell, 2 M. & P. 590 ; 
 
 5 Bing. 354. 
 
 When a private person appre- 
 hends another on suspicion of fel- 
 ony, he does it at his peril, and is 
 liable to an action unless he can 
 establish in proof that the party 
 has actually been guilty of felony. 
 Adams v. Moore, 2 SeW. N. P. 
 910 ; S. P., AMm V. Wright, 8 C. 
 
 6 P. 522. 
 
 If a reasonable charge of felony 
 is made against a person who is 
 given in charge to a constable, the 
 constable is bound to take him, and 
 he will be justified in so doing, al- 
 though the charge may turn out to 
 be unfounded. Cowles v. Dunbar, 
 2 C. & P. 565 ; M. & M. 37— Ab- 
 bott. 
 
 A constable arresting one on sus- 
 picion of felony, is bound to take 
 him before a magistrate as soon as 
 he reasonably can, and he cannot 
 justify detaining him three days 
 without going before a magistrate 
 in order that evidence may be col- 
 lected in support of the prosecu- 
 tion. Wrigkt V. Court, 6 D. & R. 
 623 ; 4 B. & C. 596. 
 
 A constable, having J;aken a pris- 
 oner on suspicion of felony, has no 
 right to handcuff him, except he 
 has attempted to escape, or except 
 it is necessary in order to prevent 
 his escaping. lb. 
 
 Watchmen and beadles have au- 
 thority at common law to arrest 
 and detain in prison, for examina- 
 tion, persons walking the streets at 
 night whom there is reasonable 
 ground to suspect of felony, al- 
 though there is no proof of a fel- 
 ony having been committed. Law- 
 rence V. Hedger, 3 Taunt. 14. 
 
 Watchmen may imprison any 
 person who encourages prisoners in 
 their custody to resist. White v. 
 Edmunds, Peake, 89— Kenyon. 
 
 Suspicion that a party has on a 
 former occasion committed a mis- 
 
 demeanor, is no justification for 
 giving him in charge to a consta- 
 ble without a justice's warrant ; 
 and there is no distinction in this 
 respect between one kind of misde- 
 meanor and another, as breach of 
 the peace and fraud. Fox v. 
 Gaunt, 3 B. & Ad. 798. 
 
 A woman died after a very short 
 illness ; rvimours were generally in 
 circulation in the neighborhood 
 where she had lived that her hus- 
 band had poisoned her, and a great 
 crowd was collected in front of his 
 house ; upon which the constable of 
 the parish, without any warrant, 
 took him into custody, and con- 
 veyed him before a magistrate, who 
 detained him till medical men had 
 reported the cause of death, and 
 then discharged him :• — ^Held, that, 
 if the jury was of opinion that the 
 constable had reasonable ground of 
 suspicion to justify the apprehen- 
 sion, an action could not be main- 
 tained for the arijest. Nioholson v. 
 Ilardwick, 5 C. & P. 495 — Gurney. 
 
 Where the crew of a Dutch 
 ship had mastered the vessel and 
 ran away with her, and brought her 
 into Deal, it was held that they 
 might be seized and sent back to 
 Holland. Mure v. Kay, 4 Taunt. 
 43. 
 
 If a man is found attempting to 
 commit a felony in the night, any 
 one may apprehend and detain him 
 until he can be carried before a mag- 
 istrate. Rex V. Hunt, 1 M. 0. C. 
 93. 
 
 A charge to a constable, on tak- 
 ing & person into custody, that he 
 has a forged note in his possession, 
 without anything more, is defective, 
 though the defect is immaterial, it 
 not being necessary that the charge 
 should contain the same accurate 
 description of the offence as an in- 
 dictment. Bex V. Ford, R. & R. 
 G. C. 329. 
 
 A constable is not justified in 
 apprehending a person as a receiver 
 of stolen goods on the mere asser- 
 
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604 
 
 APPREHENSION^ AND ARREST. 
 
 tion of the principal felon. Isaacs 
 V. Brand, 2 Stark. 167— Ellenbo- 
 rough. 
 
 A wilful trespass. on another per- 
 son's property, without doing any 
 real damage, is not sufficient to jus- 
 tify the apprehension of the parties 
 under 1 Geo. 4, c. 56, s. 3 (since re- 
 pealed, but re-enacted by 7 & 8 
 Geo. 4, c. 30). BiUler v. Turhy, 2 
 C. & P. 585 ; M. & M. 54— Best. 
 
 A., a hawker, went to the house 
 of B. to sell goods, and a dog of B. 
 comiDg out of the house, A. knock- 
 ed out one of his eyes, for which 
 B.'s wife caused A. to be appre- 
 hended : — ^Held, that it was for the 
 'jury to say whether A. had struck 
 the dog for his own preservation, 
 and fairly to protect himself; or 
 whether it was a wilful and mali- 
 cious trespass on his part. To jus- 
 tify the apprehension of an offender 
 under the Malicious Injuries Act, 
 
 7 & 8 Geo. 4, c. 30, the offender 
 must be taken in the fact, or on 
 a quick pursuit. Hanway v. BouU- 
 bee, 4 C. & P. 350 ; 1 M. & Rob. 
 15— Tindal. 
 
 A person justified, under the 7 & 
 
 8 Geo. 4, c. 30, in causing the arrest 
 of another, must do it immediately, 
 and he must send him by the direct 
 road to the lock-up ; for if he sent 
 him extra viam, he would be a tres- 
 passer against the person so an-est- 
 ed. Morris v. Wise, 2 F. & P. 51 
 — Byles. 
 
 A. went to a house at night, de- 
 manding to see the sei-vant. He 
 was told to depart, and would not. 
 A constable was sent for, and A. 
 went from^ the house to the garden. 
 When the constable arrived, A. 
 said that if a light appeared at the 
 windows he would break them ; 
 upon which the constable took him 
 into custody : — ^Held, that the con- 
 stable was not justified in so doing. 
 B&x V. Bright, 4 C. & P. 387— 
 Parke. 
 
 A private person is not justified 
 in arresting or giving in charge of a 
 policeman, without a warrant, a 
 
 party who has been engaged in an 
 affray, unless the affray is still con- 
 tinuing, or there is reasonable 
 ground for apprehending that he in- 
 tends to renew it. Price v. Seeley, 
 10 C. & F. 28. 
 
 In an action by A. against B. for 
 false imprisonment, B. justified on 
 the ground of A. having wilfully 
 and without excuse, within view of 
 the constable who apprehended her, 
 annoyed and disturbed the defend- 
 ant and his family by knocking and 
 ringing at his door : — ^Held, that to 
 support this plea, under sections 54 
 and 63 of 2 & 3 Vict. c. 47 (Metro- 
 politan Police Act), it was neces- 
 sary to prove the offence to have 
 been committed within view of the 
 constable. Simmons v. MzUengen, 2 
 C. B. 524 ; 10 Jur. 224 ; 15 L. J., 
 C. P. 102. 
 
 A police constable of the city of 
 London has no power, under 2 & 3 
 Vict. c. xciv., to take a person into 
 custody without a warrant, merely 
 on suspicion that he has committed 
 a misdemeanor. Bowditch v. Bal- 
 chin, 5 Exch. 378. 
 
 A constable is not justified in 
 scooting at a man whom he had 
 seen stealing wood growing in a 
 copse (which, if a first offence, is 
 only a misdemeanor), although the 
 constable has no means of arresting 
 the man without firing, and al- 
 though the stealing the wood in the 
 particular instance amounted to fel- 
 ony, by reason of the man having 
 been previously convicted several 
 times for similar offences under 7 & 
 8 Geo. 4, c. 29, s. 39, these convic- 
 tions being unknown to the con- 
 stable at the time. Meg. v. Dadson, 
 T. & M. 385 ; 2 Den. C. C. 35 ; 20 
 L. J., M. C. 57. 
 
 If a constable sees an assault com- 
 mitted, he may recently after that 
 assault, and before all danger of 
 further violence has ceased, appre- 
 hend the offender ; and if in so do- 
 ing he is resisted and assaulted, the 
 person assaulting is liable to be con- 
 victed of assaulting a constable in 
 
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WARRANT OF JUSTICES. 
 
 605 
 
 the execution of his duty. Reg. t. 
 Light, 7 Cox, C. C. 389 ; Dears. & 
 B. C. C.S32; 27 L. J., M. C. 1. 
 
 If a person is guilty of an assault 
 and battery, a policeman who is 
 present and sees the offence com- 
 mitted, is justified in taking the of- 
 fender at once into custody without 
 warrant, in order to take him be- 
 fore a magistrate to answer for the 
 offence ; and if such a person is so 
 taken into custody, he cannot main- 
 tain an action against a bystander 
 for directing the policeman so to 
 take him into custody. Derecourt 
 V. CorUshley, 1 Jur., K S. 870 ; 24 
 L. J., Q. B. 313 ; 5 El. & Bl. 188. 
 
 3. Warrant of Justices. 
 
 General warrants are illegal and 
 void. Money v. Leach, 1 W. Bl. 
 555. 
 
 A warrant to arrest the party 
 " to the end that he may become 
 bound, &c., at the next sessions," 
 means the next session after the ar- 
 rest ; therefore the officer may jus- 
 tify an arrest after the sessions next 
 ensuing the date of the warrant. 
 Mayhew v. Parker, 8 T. R. 110 ; 2 
 Esp. 683. 
 
 A warrant issued by a magistrate 
 for the apprehension of a party to 
 answer a charge, should state the 
 specific offence with which the party 
 is charged, and that information 
 thereof was duly made on oath be- 
 fore the magistrate. Gaudh v. Sey- 
 mour, 1 G. & D. 454 ; 1 Q. B. 889 ; 
 5 Jur. 1196. 
 
 Semble, that a magistrate has the 
 power of apprehending and of re- 
 quiring bail of a libeller, and for 
 want of it, of committing him. 
 Butt V. Gonant, Gow, 84. See Hay- 
 locke V. Sparke, 1 El. & Bl. 471 ; 
 17 Jur. 731 ; 22 L. J., M. C. 67. 
 
 A warrant directing poUce offi- 
 cers to apprehend a party, and in 
 safe custody to keep, so as to have 
 his body before her Majesty's jus- 
 tices of the peace at the next ses- 
 sions, is ill, and such custody is ille- 
 
 gal. Nishett, Ex parte, 8 Jur. 1 07 1 
 — B. C. — Patteson. 
 
 A British subject arrested abroad 
 under a warrant upon an indict-' 
 ment for a misdemeanor, brought 
 in custody to England, and there 
 committed to prison, is not entitled 
 to be discharged. Ex parte Scott, 
 4 M. & R. 361 ; 9 B. & C. 446. 
 
 A warrant was issued by a jus- 
 tice of a county, directed to the con- 
 stable of the township, and general- 
 ly to all her Majesty's officers of the 
 peace in and for the county, com- 
 manding them, or some of them, 
 forthwith to apprehend G. and con- 
 vey him before two justices to an- 
 swer for not obeying a bastardy or- 
 der for payment of money. The 
 warrant was delivered to the super- 
 intendent of police, and had subse- 
 quently been in the possession of D., 
 one of the police constables. After- 
 wards D. and S., police constables, 
 while on duty in uniform, arrested 
 G. imder the warrant, but they had 
 it not in their possession at the time 
 of the arrest, it being at the station- 
 house. G. was rescued by sev- 
 eral persons, who assaulted the con- 
 stables, whereupon informations for 
 the rescue and assault were laid 
 against the parties by the con- 
 stables, and at the hearing before 
 justices the complaint as to the res- 
 cue was withdrawn, and that for 
 the assault proceeded with, and the 
 parties were convicted : — Held, that 
 the conviction was bad, as the ar- 
 rest by the constables was illegal, 
 they not having the warrant in their 
 possession at the time. GaUiard v. 
 Loieton, 9 Cox, C. 0. 127 ; 2 B. & 
 S. 363 ; 31 L. J., M. C. 123. 
 
 Held, also, that the withdrawal 
 of the information as to the rescue 
 was no bar to proceeding with the 
 complaint as to the assault. Ih. 
 
 On a Sunday.^ — The exception, 
 in 29 Car. 2, c. 7, s. 6, that process 
 may be executed on the Lord's day, 
 in case of treason, felony or breach 
 
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606 
 
 SEARCH WARRAIfTS. 
 
 of the peace, extends to all indict- 
 able offences, and is not restricted 
 to treason and felony, and such 
 misdemeanors as involve an actual 
 breach of the peace. Rawlins v. 
 Ellis, 10 Jur. 1039; 16 M. & W. 
 172; 16 L. J., Exch. 5. 
 
 4. Bench Warrants. 
 
 Bench warrants should not be 
 granted unless it is necessary that 
 the party charged should be at once 
 taken into custody. Re.g. v. Whit- 
 taker, 2 F. & F. 1— Hill. 
 
 The court will not issue a bench 
 warrant to bring up a witness, al- 
 though it is sworn that he is keep- 
 ing out of the way coUusrvely, and 
 that his evidence is so material to 
 the prosecution that the case can- 
 not go on without him, but will 
 postpone the trial to allow the wit- 
 ness's recognizances to be estreated 
 on his non-appearance when called. 
 Reg. v. Crawford, 6 Cox, C. C. 
 481. 
 
 A warrant of a judge of the 
 Queen's Bench issued, directed to 
 the governor of a gaol, constables, 
 &c., directing them to apprehend 
 and take a party against whom a 
 bill for a misdemeanor had been 
 found at quarter sessions, and him 
 safely keep, to the end that he may 
 become bound and find sufficient 
 sureties to answer the indictment, 
 and be further dealt with according 
 to law, is a bad warrant, for not 
 directing that the party should be 
 brought before some judge or jus- 
 tice to be bound. Reg. v. Downey, 
 7 Q. B. 281 ; 9 Jur. 1073 ; 15 L. J., 
 M. C. 29. 
 
 LV. Sbaeoii Wabeants. 
 
 By 11 & 12 Vict. c. 42, s. 4, " it 
 " shall be lawful for any justice or 
 "justices of the peace to grant or 
 "issue any search warrant on a 
 " Sunday as well as on any other 
 " day." 
 
 By 24 & 25 Vict. c. 96, (Larceny 
 
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 Consolidation Act,) s. 103, "if any 
 " credible witness shall prove upon 
 " oath before a justice of the peace 
 "a reasonable cause to suspect that 
 " any person has in his possession, 
 " or on his premises, any property 
 " whatsoever, on or with respect to 
 "which any oifence, punishable 
 " either upon indictment, or upon 
 " summary cotfviction by viitue of 
 " that act, shall have beeii commit- 
 " ted, the justice may grant a war- 
 " rant to search for such property 
 " as in the case of stolen goods." 
 
 For forged instruments, see 24 & 
 
 25 Vict. c. 98, s. 46 ■,for counterfeU 
 coin, and coining implements, 24 & 
 
 26 Vict. c. 99, s. 27 ; and for gun- 
 powder and explosive substances, 24 
 & 25 Vict. c. 97, s. 55. 
 
 A positive oath that a felony is 
 actually committed is not necessary 
 to justify a magistrate in granting 
 his warrant to search the premises 
 and apprehend the person of a party 
 suspected of felony. Elsee v. Smith, 
 1 D. & R. 97 ; 2 Chit. 304. 
 
 Where a constable, having a war- 
 rant to search for certain specific 
 goods alleged to have been stolen, 
 found and took away those goods, 
 and certain others also supposed to 
 have been stolen, but which were 
 not mentioned in the warrant, and 
 were not likely to be of use in sub- 
 stantiating the charge of stealing 
 the goods mentioned.in the warrant : 
 — Held, that the constable was liable 
 to an action of trespass. Orozier y. 
 Gundy, 6 B. & C. 232 ; 9 D. & R. 
 224. 
 
 Excise ofiicers went with a search 
 warrant, and, at the desire of the 
 party, gave it him to peruse, when 
 he refused to return it : — Held, that 
 they had a right to take it from him, 
 and even to coerce his person to ob- 
 tain the possession of it, provided 
 they used no more violence than 
 was necessary. Rex v. Mitton, 3 C. 
 &P. 31— Tenterden: S. O. nom. 
 Bex V. Milton, M. & M. 107. 
 
 As to the proper mode of execu- 
 
ARTICLES OF THE PEACE — WHEN EXHIBITED. 607 
 
 ting search warrants, see Entich v. 
 Uarrmgton, 19 St. Tr. 1030. 
 
 LVI. Articles of the Peace. 
 
 1. When exhibited generally, 607. 
 
 2. Justices, 608. 
 
 3. On passing Sentence, 609. 
 
 4. Practice, 609. 
 
 1. When exhibited generally. 
 
 Articles of the peace ought to be 
 exhibited in the neighbourhood, that 
 the security may be given there. 
 Hex V. Waite, 2 Burr. 780 ; 2 'Ld 
 Ken. 511. 
 
 Where a person exhibits articles 
 of the peace, and swears that her 
 life is in danger, the truth of the 
 facts cannot be controverted. Lord 
 Vane^s case, 13 East, 172, n. 
 
 There ought to be a reasonable 
 foundation on the face of the articles, 
 to induce a fear of personal danger, 
 before the court will require sureties 
 of the peace. Jb. 
 
 The facts stated in the articles 
 are to be considered as true till the 
 contrary appears upon a proper 
 prosecution. Tb. 
 
 One, against whom articles of 
 tlie peace are exhibited, is not en- 
 titled to read affidavits on his be- 
 half, in contradiction of the facts 
 sworn to against him in such arti- 
 cles. Hex V. Doherty, 13 East, 171. 
 
 Upon articles of the peace exhib- 
 ited, the court has power of requir- 
 ing bail for such a length of time as 
 they think necessary for the preserv- 
 ation of the peace, and are not con- 
 lined to a twelvemonth. Mex v. 
 Bowes, I T. R. 696. 
 
 When articles of the peace ap- 
 peared malicious and untrue, the 
 court stayed process on them, and 
 committed the exhibitant for per- 
 jury. Bex V. Parnell, 2 Burr. 806. 
 
 The court cannot interfere to re- 
 duce the amount of security which 
 the magistrates require a party to 
 give for the preservation of the 
 
 peace. Rex v. HoUoway, 2 D. P. C. 
 525. 
 
 A party gave information on oath 
 before a magistrate, that, from cer- 
 tain language used towards him, he 
 was in bodily fear from another, 
 and the magistrate, upon hearing 
 the complaint, required the latter to 
 enter into recognizances to keep the 
 peace. On motion to discharge the 
 recognizances, on the ground that 
 the language was used in a meta- 
 phorical sense only, the court refus- 
 ed to interfere, because it was for 
 the magistrates to judge in what 
 sense the language was used. Rex 
 V. Tregarthen, 5 B. & Ad. 678 ; 2 
 N. & M. 379. 
 
 The power of justices to require 
 sureties to keep the peace is derived 
 from the commission of the peace, 
 and it is confined to cases where a 
 party makes it appear to the justices, • 
 that he goes in fear and in dan- 
 ger of personal violence from anoth- 
 er, by reason of threats employed 
 by him, or by reason of looks, ges- 
 tures and conduct ; but the party ap- 
 plying for protection must himself 
 draw the inference that he is in fear 
 of personal violence. Reg. v. Dunn, 
 1 Arn. & H. 21 ; 5 Jur. 721 ; 12 A. 
 & E. 599. 
 
 H. had written a letter to a young 
 lady, a relative of T. ; T. afterwards, 
 in consequence of his writing the 
 letters, violently assaulted H., and 
 said, " If you write again, I will 
 flog you within an inch of your 
 life." On a subsequent occasion, 
 T. meeting H., said to him, " Re- 
 member what I said to you ; I am 
 detei-mined to put a. stop to your 
 proceedings. " The court permit- 
 ted H. to exhibit articles of the 
 peace against T. Hulse, Ex parte, 
 21 L. J., M. C. 21— B. C— Wight- 
 man. 
 
 It is sufficient ground for articles 
 of the peace that the complainant 
 has been accustomed to go to a par- 
 ticular place, rightfully, as he al- 
 leges, for the transaction of business, 
 and has been threatened with vio- 
 
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608 
 
 ARTICLES OF THE PEACE. 
 
 lence if he goes there again. Reg. 
 V. Mallinson, 16 Q. B. 367. 
 
 The court will, if it sees gi-ound, 
 require sureties of the peace, al- 
 though justices have refused to do 
 so on the same complaint. lb. 
 
 2. Justices. 
 
 A justice of the peace is not au- 
 thorized to require a party to find 
 sureties to keep the peace for an 
 unlimited time. Prickett v. Gratrex, 
 2 New Sess. Cas. 429 ; 8 Q. B. 1021 ; 
 10 Jur. 566 ; 15 L. J., M. C. 145. 
 
 It is not necessary that a commit- 
 ment for want of sureties should 
 mention the sum in which the party 
 and his sureties are to be bound. lb. 
 
 A warrant of commitment, in 
 substance stated, that wjiereas the 
 plaintiif had been brought before 
 the defendant (who was a justice), 
 charged on the oath of T. P. with 
 having written on the pavement in 
 a lane the offensive words reflect- 
 ing on the character of R. T. W., 
 " Donkey Watt, the railway jack- 
 ass" ; and it having been stated to 
 the defendant on the oath of T. P. 
 that the continued writing for some 
 time past of the offensive words was 
 calculated to produce a breach of 
 the peace, and T. P. prayed that 
 the plaintiff might be required to 
 find sureties to keep the peace, he, 
 the defendant, ordered and adjudg- 
 ed that the plaintiff should enter in- 
 to his own recognizances in 20Z., 
 with two sufficient sureties in 15Z. 
 each, to keep the peace for three 
 calendar months. The warrant 
 stated that the plaintiff had refused 
 to enter into such recognizance and 
 find such sureties, and comnianded 
 that the plaintiff should be convey- 
 ed to prison and there kept for the 
 space of three months, unless the 
 plaintiff in the meantime entered in- 
 to such recognizance with such sure- 
 ties. This warrant was afterwards 
 quashed on motion, and an action 
 of trespass brought against the de- 
 fendant who granted it: — Held, 
 first, that the warrant put in by the 
 
 plaintiff was information of the ev- 
 idence recited in it. Haylock v. 
 Sparke, 1 El. & Bl. 471 ; 17 Jur. 
 731 ; 22 L. J., M. C. 67. 
 
 Held, secondly, that it must be 
 taken that the defendant intended 
 to require, sureties for good behav- 
 iour, notwithstanding the words 
 " sureties of the peace " in the war- 
 rant, lb. 
 
 Held, thirdly, that a justice of 
 the peace has jurisdiction to require 
 sureties for good behaviour in some 
 cases of libels against private indi- 
 viduals, and that therefore the de- 
 fendant had jurisdiction in the mat- 
 ter out of which the cause of action 
 arose, and within 11 & 12 Vict. c. 
 44, s. 1, and consequently was not 
 liable to an action of trespass. lb. 
 
 Articles of the peace were exhib- 
 ited against A. at the quarter ses- 
 sions of the county of H., and he 
 was by that court ordered to enter 
 into recognizance before one or more 
 justices of H. to keep the peace for 
 six calender months thence ensuing. 
 
 Under the warrant of two jus- 
 tices of H., A. was brought before 
 two justices of the same county, to 
 shew cause why he should not en- 
 ter into the recognizance, and he 
 then refused to do so, whereupon 
 the justices last mentioned commit- 
 ted him to the county gaol for the 
 then residue of six calendar months 
 from the date of the order of quar- 
 ter sessions, unless he should in the 
 meantime enter into the recogni- 
 zance : — Held, that the justices had 
 no power to commit, and that the 
 prisoner was entitled to be discharg- 
 ed on habeas corpus. Ashton or As- 
 ton, In re, 1 New Sess. Cas. 581 ; 7 
 Q. B. 169; 9 Jur. 727; 14 L. J., 
 M. C. 99. 
 
 A justice of the peace may com- 
 mit to the house of correction, un- 
 der 6 Geo. 1, c. 19, s. 2, for want of 
 sureties to keep the peace. Aston, 
 Inre,l New Sess. Cas. 73; 12 M. 
 W. 456 ; 8 Jur. 293. 
 
 In a warrant of commitment for 
 want of sureties to keep the peace, 
 
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PRACTICE. 
 
 609 
 
 m consequence of having used Ian- 
 guage threatening bodily harm to 
 an mdividual, it is not necessary 
 that the warrant should shew the 
 nature of the bodily harm threaten- 
 ed, or when the language was used. 
 H. 
 
 3. On Passing Sentence. 
 
 In all cases of misdemeanor pun- 
 ishable by imprisonment, the Queen's 
 Bench, and, therefore the judge at 
 the trial, has power to adjudge that 
 the defendant give security to keep, 
 the peace for a certain time, and 
 that he be kept in prison until such 
 security be given. Bunn Y.Reg. 
 (in error), 12 Q. B. 1026 ; 13 Jur. 
 233; 18 L. J., M. C. 41— Exch. 
 Cham. 
 
 Quaere, whether a judgment which 
 directs that each of several defend- 
 ants shall enter into recognizances 
 to keep the peace for the space of 
 seven years next ensuing the ac- 
 knowledgment thereof, is good, as 
 no period is fixed for entering into 
 the recognizances ? 0' GonneU v. 
 Meg. (in en-or), 11 C. & F. 165 ; 9 
 Jur. 25. 
 
 If, after the grand jury is discharg- 
 ed, a prisoner charged with mali- 
 ciously shooting is acquitted, the 
 judge will not order him to be de- 
 tained while articles of the peace 
 against him are prepared. Hex v. 
 Holt, 7 C. & P. 518— Littledale. 
 
 4. Practice. 
 
 The court granted an attachment 
 upon articles of the peace where the 
 threat of further violence was con- 
 ditional on the exhibitant writing 
 Higain to a member of the defend- 
 ant's family, although it did not 
 appear that the exhibitant had writ- 
 ten again, or was under any neces- 
 sity of doing so. Meg. v. Tollemache, 
 2 L., M. & P. 401— B. C— Wight- 
 man. 
 
 Where a peer had been arrested 
 by a warrant of two justices, and 
 bound by recognizances with two 
 Fish. Dig. — 46. 
 
 sureties to keep the peace, the court 
 refused an application for a certio- 
 rari to bring up the recognizances 
 (on the ground of the justices hav- 
 ing no jurisdiction), as the appli- 
 cant was not in custody ; and, in 
 the event of its being necessary to 
 enforce the recognizances, their va- 
 lidity could be tried in another way. 
 Gifford (Lord), Ex parte, 1 New 
 Sess. Cas. 490. 
 
 Where articles of the peace have 
 been filed, and an attachment issued 
 for the purpose of bringing in the 
 defendant to find sureties, the court 
 will not entertain an application to 
 discharge the articles and to award 
 costs under 21 Jac. 1, c. 8, s. 2, on 
 the ground of alleged insufficiency 
 of the articles, though notice of such 
 application has been given to the 
 prosecutor. Meg. v. Mallinson, 16 
 Q. B. 367 ; 15 Jur. 746. 
 
 A party, against whom articles 
 of the peace have been exhibited in 
 the court, cannot call upon the pros- 
 ecutor to shew cause why the arti- 
 cles should not be discharged. Ih. 
 Affidavits are not admissible for 
 the purpose of supplying facts said 
 to have been suppressed by the com- 
 plainant, as the contents of a corre- 
 spondence alluded to in the articles. 
 Kor is it an objection to the articles 
 that such correspondence is not set 
 out, if it does not contain any part 
 of the menace relied upon. lb. 
 
 Where articles of the peace were 
 returned by certiorari, and affidavits 
 made by others than the exhibitant 
 were subjoined on the same parch- 
 ment, and the whole ended with the 
 following jurat — " sworn by the 
 several deponents, " &c. : — Held, 
 that it sufficiently appeared that the 
 articles had been exhibited on oath.. 
 Meg. V. Dunn, 12 A. & E. 599 ; 4 
 P. & D. 415 ; 1 Arn. & H. 21 ; 5. 
 Jur. 721. 
 
 On habeas corpus bringing up a 
 party committed by justices for not 
 finding sureties of the peace, the- 
 court will not hear affidavits contro- 
 
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610 
 
 BAIL. 
 
 verting facts alleged in the articles 
 of the peace. lb. ; S. P., Beg. v. 
 Stanhope, 12 A. & E. 620, n. 
 
 The court of Queen's Bench has 
 authority to examine the allegations 
 contained in articles of the peace 
 when they are brought up by cer- 
 tiorari, and to quash the articles, if 
 no sufficient oifence is alleged to 
 justify the justices in ordering the 
 defendant to give sureties of the 
 peace. lb. 
 
 LVn. Bail. 
 
 1. Fdony, 610. 
 
 2. In misdemeanors and other Cases, 
 
 611. 
 
 1. In Felony. 
 
 By 7 Geo. 4, c. 64, the 3 Edw. 1, 
 c. 15 ; 23 Hen. 6, c. 9 ; 3 Hen. 7, c. 3, 
 were partially, and 1 & 2 P. & M. c. 
 13, was wholly repealed ; and 7 Geo. 
 4, c. 64, ss. 1, 2, 3, aret^ 5 & 6 Will. 
 4, c. 33, s. 3, are repealed by \1 & 
 12 Vict. c. 42, s. 34. 
 
 By 11 & 12 Vict. c. 42, ss. 23, 
 24, 25, "the law and practice of 
 " taking bail by justices in cases of 
 " felony and of misdemeanor are reg- 
 " ulated. " 
 
 The court, in exercising its dis- 
 cretion of admitting a prisoner to 
 bail, will consider the seriousness 
 of the charge, the evidence in sup- 
 port of it, and the punishment 
 which the law awards for the of- 
 fence. Barronet, In re, 1 El. & Bl. 
 1 ; Dears. C. C. 51 ; 17 Jur. 184 ; 
 22 L. J., M. Q. 25. 
 
 Upon an application to be ad- 
 mitted to bail by two Frenchmen, 
 who had been committed on a cor- 
 oner's inquest, and by a warrant of 
 justices, for wilful murder in a duel, 
 their affidavits stated that they had 
 acted as seconds of the deceased, 
 that the duel was fair, that they 
 were ignorant of the law of Eng- 
 land, and that the part which they 
 took in the duel was not considered 
 in France any legal offence :— Held, 
 
 that there being a confession of 
 guilt, the court was not justified in 
 admitting them to bail. lb. 
 
 A similar application was made 
 on behalf of two other Frenchmen, 
 under the same circumstances, upon 
 the production of verified copies of 
 the depositions before the coroner 
 and before the magistrates ; the pris- 
 oners made no affidavit. The court 
 refused the application, on the 
 ground that the depositions con- 
 tained evidence to support the find- 
 ing of the coroner's inquest. Bartheh- 
 my. In re. Dears. C. C. 60 ; 1 El. & 
 Bl. 1 ; 17 Jur. 184 ; 22 L. J., M. C. 
 25. 
 
 The court refused to bail a prison- 
 er, who was charged on a coroner's 
 inquest with murder, and against 
 whom a bill for the same crime had 
 been found by the grand jury ; al- 
 though his trial had been postponed 
 in consequence of the absence of 
 witnesses for the prosecution ; and 
 it was alleged, that, on the face of 
 the depositions, as taken before the 
 coroner, the charge of murder could 
 not be sustained. Reg. v. Andrews, 
 2 D. & L. 10; 1 NewSess. Gas. 
 199 ; 8 Jur. 799 ; 13 L. J., M. C. 
 113— B. C.— Wightman. 
 
 On an application to bail a pris- 
 oner charged with a criminal of- 
 fence, the test to govern the discre- 
 tion of the court is the probability 
 of the prisoner's appearing to take 
 his trial ; but, in applying that test, 
 the court will not look to the char- 
 acter or behaviour of the prisoner 
 at any particular time, but will be 
 guided by the nature of the crime 
 charged, the severity of the punish- 
 ment that may be imposed, and the 
 probability of a conviction. Robin- 
 son, In re, 23 L. J., Q. B. 286— B. 
 C. — Coleridge. 
 
 The principle on which a party 
 committed to take his trial for an 
 offence may be bailed, is founded 
 on the probability of his appearing 
 to take his trial, and not on his sup- 
 posed guilt or innocence ; but the 
 fact of a bill having been found 
 
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IN FELONY. 
 
 611 
 
 against him is material in estimat- 
 ing that probability. Beq. v. Scaife, 
 9 D. P. C. 553 ; 5 Jur. 700-B. c! 
 
 A judge will not admit a prison- 
 er to bail after the grand jury has 
 returned a true bill against him for 
 murder. Beg. v. Chapman, 8 C. & 
 P. 558— Abinger. 
 
 Where neither the husband of a 
 feme covert, nor her next of kin, 
 can be discovered, service of a rule 
 nisi for bailing a prisoner on a 
 charge of manslaughter, may be 
 made on the coroner. Meg. v. Wil- 
 liams, 8 D. P. C. 301 ; 4 Jur. 654— 
 B.C. 
 
 Where, after conviction by a jury 
 at the assizes, questions of law have 
 been reserved for the Court of Crim- 
 inal Appeal, the prisoner will not 
 be admitted to bail without the as- 
 sent of the judge before whom he 
 was tried. Reg. v. Harris, 4 Cox, 
 C. C. 21— Erie. 
 
 After defendants have been ad- 
 mitted to bail on a criminal charge, 
 the court will not, on affidavit of 
 aggravating facts, increase the bail. 
 Bex V. Salter, 2 Chit. 109. 
 
 Now it is an invariable rule to 
 require four bail in cases of felony. 
 Bex V. Shaw, 6 D. &. R. 154. 
 
 In the Country. '\ — Where the 
 court thinks that a prisoner ought 
 to be bailed for felony, if he is un- 
 able to defray the expense of being 
 brought to Westminster for that 
 purpose, they will grant a rule to 
 shew cause why he should not be 
 bailed by a magistrate in the coun- 
 try. Bex V. Jones, 1 B. & A. 209. 
 
 The court will not allow a defend- 
 ant who is out of custody, to be 
 bailed before a magistrate in the 
 country ; he must surrender in 
 court, in order to be bailed. Bex 
 V. Wren, 5 D. P. C. 222. 
 
 In order to entitle a defendant on 
 a charge of felony to be bailed be- 
 fore a magistrate in the country, 
 it is not necessary to produce an af- 
 fidavit of poverty, if it appears from 
 the other affidavits in the case that 
 
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 he is in an humble situation of life. 
 Rex V. Booker, 2 D. P. C. 446. 
 
 The court will grant a rule nisi 
 for bailing in the country a party 
 charged with a felony, without the 
 production of an affidavit of his pov- 
 erty. Beg. V. Gregory 9 D. P. C. 
 129. 
 
 In order to a party being bailed 
 in London for an offence commit- 
 ted in the country, the depositions 
 should be removed by certiorari, 
 and notice served on the commit- 
 ting magistrates and on the prose- 
 cution. Rex V. Braithwaite, 2 Lew- 
 in, C. C. 55— Littledale. 
 
 2. In Misdemeanors and other Gases. 
 (114-12 Vict. c. 42, ss. 23, 24, 25.) 
 
 By 16 & 17 Vict., " provisions are 
 " enacted for staying execution of 
 "judgment for misdemeanors in 
 " giving bail in error." 
 
 It is a clear principle of law, that 
 a person charged with a misdemean- 
 or is entitled to be bailed on pro- 
 ducing sufficient sureties. Reg. v. 
 Badger, 4 Q. B. 468 ; D. & M. 375 ; 
 7 Jur. 216; 12 L. J., M. C.-66. 
 
 A magistrate has no right to re- 
 ject bail, on account of the charac- 
 ter or political opinions of bail, if he 
 is satistied-of tlieir pecuniary suffi- 
 ciency. Ih. 
 
 Where an indictment for conspir- 
 acy had been removed by certiorari, 
 and the ordinary bail had been given, 
 but after trial and the conviction of 
 the defendant, and before judgment, 
 a motion was made to quash the in- 
 dictment for insuthciency, and pend- 
 ing such motion one of the bail be- 
 came insolvent, and offered a com- 
 position to his creditors ; the court 
 refused to require the defendant to 
 give fresh bail. Reg. v. Johnson, 1 
 D. &, L. 132 ; 7 Jur. 1038— B. C— 
 Wightman. 
 
 A motion for fresh bail ought to 
 be made at chambers, and not in 
 court. Ih. 
 
 The power of a magistrate to ac- 
 cept or refuse bail in cases of misde- 
 
612 
 
 BAIL. 
 
 meanor is a judicial duty, and an 
 action will not lie against him for 
 refusing to take bail in such cases 
 without proof of express malice, 
 even though the sureties tendered 
 are found by tlie jury to have been 
 sufficient. Linford v. Fitzroy, 3 
 New Sess. Cas. 438 ; 13 Q. B. 240 ; 
 13 Jur. 303 ; 18 L. J., M. C. 108. 
 
 Where a certiorari had issued to 
 bring up a conviction under 4 Geo. 
 4, c. 34, for the purpose of being 
 quashed for defects on the face of 
 of it, the court admitted the defend- 
 ant, who was in prison under the 
 conviction, to bail. Lord, Ex parte, 
 4 D. & L. 405 ; 1 B. C. Rep. 222 ; 
 16 L. J., M. C. 15— Patteson. 
 
 It is the duty of magistrates, in all 
 cases, to commit an accomplice, 
 and not to admit him to bail, not- 
 withstanding it may be intended to- 
 call the accomplice as a witness on 
 the trial. Rex v. Beardmore, 7 C. & 
 P. 497— Patteson. 
 
 It is the duty of a magistrate to 
 ascertain the sufficiency of the bail 
 who tender themselves on behalf of 
 an accused party, but he ought not 
 to interfere in any way to dissuade 
 them from becoming bound as bail. 
 Reg. V. Saunders, 2 Cox, C. C. 249. 
 
 A defendant, brought up for 
 judgment after conviction, stands 
 committed, unless the prosecutor 
 consents to bail. Rex v. Wadding- 
 ton, 1 East, 159. 
 
 Where bills for misdemeanors are 
 found under the commission of oyer 
 and terminer at the Central Crim- 
 inal Court, the defendant must give 
 48 hours' notice of bail, unless the 
 application for process is made on a 
 Priday, in any case in which there 
 is reason to think that there is a de- 
 sire to keep the party in custody 
 over Sunday. Rex v. Garlile, 6 C. 
 & P. 628. 
 
 It is in the discretion of the judge 
 to bail the prisoner or not, when his 
 trial is postponed on account of the 
 absence of the prosecutor. Anon. 
 2 Lewin, C. C. 260— Parke. 
 
 Where on error brought it was 
 
 held that an entry by an inferior 
 jurisdiction did not amount to a 
 judgment, but was merely an or- 
 der, the court awarded a proceden- 
 do to the court below commanding 
 them to proceed to give the proper 
 judgment, but in the mean time al- 
 allowed the prisoner to be bailed. 
 Rex V. Kenworthy, 3 D. & R. 173 ; 1 
 
 B. & C. 711. 
 
 The bail of one acquitted of per- 
 jury will be discharged, although 
 the acquittal is not entered of rec- 
 ord. Rex V. Spencer, 1 Wils. 315. 
 
 When the House of Lords voted 
 the defendant guilty of a breach of 
 privilege, and committed him to 
 prison, the court refused to dis- 
 charge him out of custody. Rex v. 
 Flower, 8 T. R. 314. 
 
 A commitment by a justice of the 
 peace for a time certain, as for four- 
 teen days, under the vagrant act, is 
 a commitment in execution, and 
 the party is not entitled to be bail- 
 ed. 'Rex V. Brooke, 2 T. R. 190. 
 
 In the Country. \ — An attachment 
 upon articles of the peace is bailable 
 before justices of the county. Rex 
 V. Bomaster, 1 W. Bl. 233. 
 
 A party indicted for a misde- 
 meanor at York, may put in bail 
 in London. Swaile's case, 1 Lewin, 
 
 C. C. 19— Holroyd. 
 
 Recognizances. ] — The word forth- 
 with in a notice to a party charged 
 criminally, and out on bail, to ap- 
 pear, on pain of forfeiting his recog- 
 nizance, means, " within a reason- 
 able time from the service," and 
 not from the date of the notice. 
 Reg. V. Price, 8 Moore, P. C. C. 
 203. 
 
 Indemnification of Bail.'\ — On the 
 removal into the Queen's Bench of 
 an, indictment for a conspiracy 
 against the defendant, the plaintiff 
 became one of his bail in 40^., the 
 condition of the recognizance being, 
 that the defendant should plead, 
 and at his own costs cause the in- 
 
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COSTS — EXPENSES OF PROSECUTION. 
 
 613 
 
 dictment to be tried, and appear 
 personally, and not depart till dis- 
 charged by the court. The defend- 
 ant appeared, and was tried and 
 convicted ; and the costs of the 
 prosecution not having been paid, 
 pursuant to 5 Will. & M. c. 11, the 
 recognizances were escheated, and 
 the plaintiflf was compelled to pay 
 the 407. The plaintitf having 
 brought an action for money paid 
 against the defendant to recover 
 the 401. : — Held, that as an express 
 promise by a defendant in a misde- 
 meanor to indemnify his bail against 
 the consequences of not paying the 
 cost of the prosecution would not 
 be illegal, the law would imply a 
 promise to that extent, and the 
 plaintiff could therefore recover. 
 Jones y. Orchard, 16 C. B. 614; 1 
 Jur., N. S. 936 ; 24 L. J., C. P. 229. 
 Where B. promised verbally to 
 indemnify A. against all liability if 
 he would become bail for the ap- 
 pearance of C. to answer a charge 
 of misdemeanor, and A., in conse- 
 quence, became bail for C, the 
 agreement need not be in writing, 
 as the promise is a mere promise to 
 indemnify, and not a promise to an- 
 swer for the debt or default of an- 
 other, since no debt or legal duty 
 was owing from C. to A. in conse- 
 quence of his having become bail. 
 Gripps V. Hartnoll, 32 L. J., Q. B. 
 381 ; 11 W. R. 953 ; 10 Jur., N. S. 
 200 ; 8 L. T., N. S. 765— Exch. 
 Cham. 
 
 LVm. Costs. 
 
 1. Expenses of Prosecution, 6\3. 
 
 2. Rewards for extraordinary Exer- 
 
 tions and Diligence, 61.'). 
 
 3. In other Cases, 615. 
 
 4. After Removal by Certiorari, 615. 
 
 5. Practice, 619. 
 
 6. Taxation, 621. 
 
 7. Enforcing Payment, 621. 
 
 1. Expenses of Prosecution. 
 
 7 Geo. 4, 0. 64, s. 22, and 14 & 15 
 Vict. c. 55, " regulate the allowance 
 
 " of prosecution in felonies and mis- 
 " demeanors." 
 
 TTie 7 Geo. 4, c. 64, repeals 25 
 Geo. 2, c. 36 ; 27 Geo. 2, c. 3 ; 18 
 Geo. 3, c. 19 ; and 58 Geo. 3, c. 70, 
 so far as related to this sulyect. The 
 costs of prosecution are allowable and 
 enforceable under the Larceny Con- 
 solidation Statute, see 24 & 25 Vict, 
 c. 96, s. 121 ; under the Malicious 
 Injuries to Property Act, 24 & 25 
 Vict. c. 97, s. 77 ; under the Forgery 
 Consolidation Statute, 24 & 25 Vict, 
 c. 98, s. 64 ; under the Coinage Con- 
 solidation Statute, 24 & 25 Vict. c. 
 99, s. 42 ; and under the Statute re- 
 lating to Offences against the Person, 
 24 & 25 Vict. c. I'OO, s. 77. 
 
 By 29 & 30 Vict. c. 52, " the law 
 " relating to the expenses of prose- 
 " tions is extended to the payment 
 " of expenses incurred in attending 
 " before magistrates, but this enact- 
 " ment is only for three years." 
 
 In frivolous cases of felony a 
 judge will not allow the prosecut- 
 or's expenses, although he may be 
 bound over to prosecute by a mag- 
 istrate. Hex V. Powell, 1 C. & P. 
 96— Park. 
 
 On an application for costs under 
 14 & 15 Vict. c. 55, s. 3, in a case 
 of assault the judge must be satis- 
 fied that the defendant was taken 
 before magistrates for their sum- 
 mary decision of the case, and by 
 them sent for trial at the assizes ; 
 but the prosecution of the summons 
 granted by one of the magistrates 
 for the defendant to appear before 
 such magistrates as should then be 
 there, to answer the complaint, and 
 be further dealt with according to 
 law, is suificient for this purpose. 
 Reg. V. M' Gavaron, 3 C. & K. 320 ; 
 6 Cox, C. C. 64— Williams. 
 
 An indictment under 8 & 9 Vict, 
 c. 109, which enacts that every per- 
 son who by fraud or unlawful de- 
 vice or ill practice in playing cards, 
 shall win from any other person any 
 sum of money or valuable thing 
 from such other person by a false 
 pretence, with intent to cheat or de- 
 
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614 
 
 COSTS. 
 
 fraud such person of the same, and 
 being convicted thereof, shall be 
 punished accordingly, is within 7 
 Geo. 4, c. 64, s. 23, which empowers 
 the court to, order the costs of pros- 
 ecution in indictments, for knowing- 
 ly and designedly obtaining any 
 property by false pretences. Reg. 
 V. Gardner, 5 Cox, C. C. 140— Tal- 
 fourd. 
 
 On a conviction of forgery, the tri- 
 al taking place in the county of S. , but 
 the material acts appearing to have 
 been done partly in the county of 
 D., and partly in the borough of O., 
 in the county of S., which borough 
 had its own rate in the nature of a 
 county rate, the judge of assize 
 made an order upon the borough 
 treasurer, under 7 Geo. 4, c. 64, s. 
 25, for payment of the prosecutor's 
 costs. The order was not disputed 
 during the assizes. The borough 
 afterwards contesting it, and a man- 
 damus being moved for : — Held, 
 that the judge's order was conclu- 
 sive, and that a mandamus might 
 issue to enforce the payment. Reg, 
 V. Oswestry (Treasurer) or Reg. v. 
 Sayward, 12 Q. B. 239 : 12 Jur. 
 744; 17 L. J., Q. B. 223. 
 
 A prosecutrix and witnesses were 
 bound by recognizance to appear 
 against a prisoner at the assizes on 
 a charge of felony. By the ad- 
 vice of counsel, instead of an in- 
 dictment for felony, an indictment 
 was preferred for a misdemeanor at 
 common law, on which no costs 
 could be allowed. The judge made 
 an order for the expenses of the at- 
 tendance of the prosecutrix and wit- 
 nesses. Reg. V. Hanson, 2 C. & K. 
 912— Williams. 
 
 A prosecutor and his witnesses 
 were bound by recognizances to 
 prosecute and give evidence at the 
 assizes. They attended there, and 
 preferred an indictment, which, was 
 found. The prisoner had been by 
 mistake discharged by proclama- 
 tion at an adjourned sessions which 
 precede the assizes, and had abscond- 
 ed. The judge allowed the expenses. 
 
 Rex V. Robey, 5 C. & P. 552— 
 Taunton. 
 
 A party who is bound over to 
 prosecute at a superior court by a 
 court of quarter sessions, is entitled 
 to his expenses. Rex v. Paine, 7 
 C. & P. 135. 
 
 Under 7 Geo. 4, c. 64, s. 22, the 
 court may, in case of felony, allow 
 the costs of the prosecutor and wit- 
 nesses, though they are not under 
 recognizances. Recr. v. Hutterwick, 
 2 M. & Rob. 196— Parke. 
 
 Where an indictment on 7 & 8 
 Geo. 4, c. 30, s. 16, was removed by 
 certiorari into the King's Bench, 
 and is tried on a record issuing 
 out of that court, the expenses of 
 prosecution cannot be allowed un- 
 der 7 Geo. 4, c. 64, s. 22. Rex v. 
 Kelsey, 1 D. P. C. 481. 
 
 Where the clerk of the peace, au- 
 thorized to prosecute at the expense 
 of the county, had not prosecuted, 
 the expenses of prosecution were 
 not allowed. Reg. v. Cook, 1 F. & 
 F. 389— Bramwell. 
 
 The court has no power to make 
 an order on the treasurer for the in- 
 terlocutory costs of a prosecution, 
 and will not make any till the trial 
 has actually taken place. In re 
 Young, 2 Cox, C. 0. 280— Patteson. 
 
 The court has no power to order 
 payment, as part of the expenses of 
 a prosecution, of the costs incurred 
 by the warders of.Millbank prison, 
 in bringing down to Wells a pris- 
 oner in custody at Millbank, as an 
 escaped convict, to be tried at 
 Wells, on a charge of larceny from 
 the person. Beg. v. Waters, 8 Cox, 
 C. C. 350— Channell. 
 
 Under the words " in othei-wise 
 carrying on such prosecution," in 7 
 Geo. 4, c. 64, s. 22, extra expenses 
 which had been incurred in getting 
 up a prosecution, ordered to be re- 
 imbursed. Lewen^s case, 2 Lewin, 
 C. C. 161— Denman. 
 
 Where the prosecutor of an indict- 
 ment for a misdemeanor found at 
 sessions removes it into the Queen's 
 Bench by certiorari, he is not entit- 
 
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REWARDS. 
 
 615 
 
 ted to costs Tinder 7 Geo. 4, c. 64, 
 s. 23. Bex V. Richards, 2 M. & R. 
 405 ; 8 B. & C. 420 ; 8. P., Rex v. 
 Johnson, 1 M. C. C. 173. 
 
 The prosecutor, in a case of per- 
 jury, who has included his name in 
 a subpoena, is entitled to his costs 
 as a prosecutor, though he is not 
 bound over to prosecute by a mag- 
 istrate, and he is not limited to his 
 expenses incurred as a witness only. 
 Rex V. Sheering, 7 C. & P. 440— 
 Parke and Coleridge. 
 
 Justices of the peace at the quar- 
 ter sessions have no authority, by 
 an act of parliament, to order the 
 costs of a prosecution for a misde- 
 meanor, carried on under the direc- 
 tion of magistrates, to be allowed 
 out of the county rates. Rex v. 
 W. R. Yorkshire, 7 T. R. 377. 
 
 Where to an indictment at the 
 assizes for a misdemeanor the de- 
 fendants consented to plead guilty, 
 upon an understanding that they 
 were not to be brought up for judg- 
 ment, and no stipulation or agree- 
 ment having been then expressly 
 made by the prosecutor for the pay- 
 ment of his costs : — Held, that he 
 was not afterwards entitled to a 
 rule on the crown side to have his 
 costs taxed. Rex v. Rawson, 4 D. 
 
 6 R. 124; 2 B. & C. 598. 
 
 2. Rewards for extraordinary Ex- 
 ertions or DUigence. 
 
 On an indictment for an attempt 
 to murder by suffocating, the allow- 
 ance of extra expenses for appre- 
 hending the prisoner is within the 
 spirit and intention of the 7 Geo. 4, 
 c. 64, s. 28, though not within the 
 words. JDurhinHs case, 2 Lewin, C. 
 C. 16.3— Patteson. * 
 
 Under the word " exertions," in 
 
 7 Geo. 4, c. 64, s. 28, a gratuity 
 awarded to a prosecutor for his 
 courage in aiDprehending the prison- 
 er. Womer shy's case, 2 Lewin, C. 
 C. 162— Parke. 
 
 A person residing in a house 
 broken into by burglars, and who, 
 
 by fastening them in a room, de- 
 tains them there until assistance is 
 obtained, and the capture of the of- 
 fenders effected, is within 7 Geo. 4, 
 c. 64, 8. 28. iReq. v. Dunning, 5 
 Cox, C. C. 142— talfourd. 
 
 An application under 7 Geo. 4, c. 
 64, s. 28, must be founded on an 
 affidavit of the amount actually ex- 
 pended. Reg. V. Haines, 5 Cox, C. 
 C. 114— Campbell. 
 
 A judge has no power to order 
 payment of the expenses incurred 
 in the apprehension of a prisoner 
 who has left England. Reg. v. 
 Barrett, 6 Cox, C. C. 78 — Wil- 
 liams. 
 
 Rewards, under 7 Geo. 4, c. 64, 
 s. 28, are not confined to cases 
 where the person apprehending has 
 had a loss of time or has been at 
 any expense. Reg. v. Barnes, 7 C. 
 & P. 166— Coleridge. 
 
 Where a reward is applied for 
 under 7 Geo. 4, c. 64, s. 28, and the 
 facts on which the application is 
 grounded are not in evidence, the 
 judge requires an affidavit of them. 
 Rex V. Jones, 7 C. & P. 167 — 
 Parke. 
 
 3. Costs in other Cases. 
 
 Costs for not going to trial shall 
 be paid to a defendant, by the 
 course of the court, on informations 
 for misdemeanors, where the prose- 
 cutor does not countermand his no- 
 tice of trial in time. Rex v. JSey- 
 don, 3 Burr. 1304. 
 
 But a prosecutor is not to pay 
 costs for not going to trial ac- 
 cording to his notice, if it is not oc- 
 casioned by his own default. Rex 
 V. Righton, 3 Burr. 1694. 
 
 A rule for the costs of the day 
 for not proceeding to trial on an in- 
 dictment for perjury pursuant to 
 notice, is absolute in the first in- 
 stance. Reg. V. Hazard, 1 W., W. 
 & H. 417 ; 2 Jur. 1067— B. C. 
 
 4. After Removal hy Certiorari. 
 In the case of an indictment re- 
 moved by certiorari, the court has 
 
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616 
 
 COSTS, 
 
 no power to order the payment of 
 costs incurred before the removal. 
 Rex V. Pasman, 3 N. & M. 730 ; 1 
 A. & E. 603. 
 
 Rated inhabitants of a parish, 
 who were prevented by rioters from 
 entering the vestry-room to attend 
 a meeting called for the purpose of 
 imposing a church-rate, and who 
 after\vards prosecuted the offenders, 
 are parties grieved within 5 & 6 
 Will. & M. c. 11, s. 3 ; and there- 
 fore entitled to costs on conviction 
 of the defendants after removal of 
 the indictment by certiorari. Rex v. 
 Thrnnpkins, 2 B. & Ad. 287. 
 
 Where a defendant who removes 
 an indictment by certiorari is con- 
 victed, he shall not pay costs under 
 5 & 6 Will. & M. c. 11, to the 
 prosecutors. Rex v. Ingletcm, 1 
 Wils. 139. 
 
 Where a defendant removes an 
 indictment by certiorari, and enters 
 into recognizances with two sure- 
 ties, under 5 & 6 Will. & M. c. 11, 
 ss. 2 & 3, and 8 & 9 Will. 3, c. 33, 
 and is convicted, the sureties are 
 liable to pay the prosecutor his 
 costs. Reg. v. Bezant, 7 D. P. C. 
 680 ; 2 W., W. & H. 113 ; 3 Jur. 
 279. 
 
 Where an indictment was remov- 
 ed by certiorari at the instance of a 
 defendant, and he was found guilty, 
 the costs of conveying him to gaol, 
 on his receiving sentence of impris- 
 onment, are reasonable costs within 
 5 & 6 Will. & M. c. 11, s. 3, to be 
 allowed to the prosecutor on taxa- 
 tion. Rex V. GUbie, 5 M. & S. 520; 
 2 Chit. 159. 
 
 A public body at its own ex- 
 pense preferred an indictment for a 
 libel upon A., one of its officers, in 
 the name of A. as prosecutor. The 
 defendant removed the indictment 
 by certiorari, and was convicted :— 
 Held, that no costs could be award- 
 ed under 5 & 6 Will. & M. c. 11, s. 
 3. Rex v. Dewhurst, 2 N. & M. 253; 
 
 5 B. & Ad. 405. 
 
 The provisions of the 5 & 6 Will. 
 
 6 M. c. 11, ss. 2 & 3, attach only 
 
 upon a defendant being convicted 
 by judgment ; and therefore if, after 
 a verdict of guilty, the judgment is 
 aiTested, no costs can be taxed for 
 the prosecutor. Rex v. Turner, 15 
 East, 570. 
 
 The prosecutor of an indictment 
 removed by certiorari is only en- 
 titled under 5 & 6 Will. & M. c. 
 11, s. 3, to the costs of the counts 
 on which the defendant is convict- 
 ed. Rex V. Hawdon, 3 P. & D. 44 ; 
 11 A. & E. 143. 
 
 Persons dwelling near a steam- 
 engine, which emitted volumes of 
 smoke, affecting their breath, eyes, 
 clothes, furniture, and dwelling- 
 houses, and prosecuting an indict- 
 ment for it, are parties grieved, and 
 entitled to have their costs taxed 
 under 5 & 6 Will. & M. c. 11, s. 3, 
 upon removal of the indictment by 
 certiorari from the sessions into the 
 court by the defendants, and their 
 subsequent conviction. Rex v. Dew- 
 snap, 16 East, 194. 
 
 A defendant was convicted of 
 pel jury on an indictment removed 
 at his instance, by certiorari : — 
 Held, that the pi-osecutors, who 
 were executors of a deceased person, 
 were entitled to costs under 5 & 6 
 Will. & M. c. 11, as persons grieved 
 or injured, although the perjury oc- 
 casioned them no actual damage, it 
 being sufficient to bring the case 
 within the statute that the peijury 
 might have caused them damage, 
 and the false oath of the defendant 
 having put a difficulty in their way, 
 which they were compelled to re- 
 move. Reg. V. Major, Dears. C. C. 
 13 ; 1 B. C. C. 68 ; 21 L. J., M. C. 
 21 — Wightman. 
 
 If the metrc^olitan police com- 
 missioners appointed under 10 Geo. 
 4, c. 44, s. 1, direct an indictment 
 for assaulting one of the police con- 
 stables in the execution of his duty, 
 and the defendant removes such in- 
 dictment by certiorari and is con- 
 victed, the commissioners are en- 
 titled to costs under 5 & 6 Will. & 
 M. c. 11, s. 3, as justices of the 
 
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AFTER REMOVAL BY CERTIORARI. 
 
 617 
 
 peace and civil officers whom it con- 
 cerned to prosecute. Reg. v. Wal- 
 degmve (Uarl), 2 Q. B. 341 ; 1 G. 
 & D. 615 ; 6 Jur. 502. 
 
 Where an indictment has been 
 removed by certiorari, and a con. 
 viction obtained, the person who, 
 being a party grieved, retained and 
 is liable to the attorney for the pros- 
 ecution, is entitled, under 5 & 6 
 Will. & M. c. 11, s. 3, to the costs 
 of such prosecution, though other ag- 
 grieved parties, after the attorney 
 was retained and the indictment* re- 
 moved, agreed to contribute part of 
 the costs, and they are not joined 
 in the application. Heg. v. WU- 
 liams, 6 Q. B. 273 ; 8 Jur. 559 ; 15 
 L. J., Q. B. 98. 
 
 A side-bar rule for costs having 
 been obtained by the prosecutors of 
 an indictment for an obstruction to 
 a highway as parties grieved, within 
 5 & 6 Will. & M. c. 11, s. S, the 
 court refused to discharge it on the 
 ground that the expenses of the 
 prosecution had been paid out of 
 the funds of a society, of which 
 some of the prosecutors were mem- 
 bers, and that money had been 
 raised by public subscription to- 
 wards paying those expenses ; or on 
 the ground that all the prosecutors 
 were not parties aggrieved ; or on 
 the ground that the certiorari for 
 removing the indictment had been 
 obtained at the instance of one only 
 of the defendants. Meg. v. Dohson, 
 9 Q. B. 302 ; 10 Jur. 283 ; 15 L. J., 
 Q. B. 97. 
 
 An indictment for a libel on a 
 political dinner, alleged to have a 
 tendency to produce a riot, was, at 
 the instance of the defendants, re- 
 moved by certiorari.: — Held, that a 
 person injured at a riot which took 
 place at that dinner was not a per- 
 son grieved within 5 & 6 Will. & 
 M. c. 11, s. 3, and therefore, al- 
 though the defendants were con- 
 victed on the indictment, he was not 
 entitled to costs. Beg. v. Calde- 
 oo«, 1 D., N. S. 556 ; 6 Jur. 344— 
 B.C. 
 
 Where a defendant removes an 
 indictment by certiorari, and recog- 
 nizances are entered into under 5 & 
 6 Will. & M. c. ll,s. 2; 8 & 9 
 Will. 3, c. 33, s. 1 ; and 5 & 6 
 Will. 4, c. 33, s. 2, conditioned only 
 for the defendant's Eippearing, plead- 
 ing and trying at his expense, and 
 the defendant is convicted, .such 
 recognizances will be estreated for 
 non-payment of the costs of the 
 prosecution, under 5 & 6 Will. & 
 M. c. 11, s. 3, though the condition 
 expressed in the recognizances is 
 performed. Reg. v. Hawdon, 1 Q. 
 B. 464 ; 1 G. & D. 135 ; 9 D. P. C. 
 1007 ; 5 Jur. 1008. 
 
 Where the defendants remove an 
 indictment by certiorari, a merely 
 nominal prosecutor is not entitled to 
 costs under the 5 & 6 Will. & M. 
 c. 11 , s. 3, as a party grieved or in- 
 jured. Reg. V. Barnard Castle, 1 
 Q. B. 246 ; 5 Jur. 799. 
 
 A child, six years old, was found 
 wandering in a parish, within a 
 union in London. It appeared to 
 be destitute, and to have been as- 
 saulted and very ill-used. It was 
 received into the union work-house, 
 and there maintained. On its be- 
 ing taken before two aldermen, 
 they urged the guardians of the 
 union to undertake the prosecution 
 of the person who appeared to have 
 ill-used the child. The guardians 
 did so. The defendant removed the 
 case by certiorari, and was convict- 
 ed : — Held, that the guardians were 
 entitled to the costs of the prosecu- 
 tion, under 5 & 6 Will. & M. c. 11, 
 s. 3, having prosecuted as oiEcers, 
 on account of a fact that concerned 
 them as officers to prosecute. Reg. 
 
 V. , 15 Q.B. 1060 ; 15 Jur. 55 ; 
 
 20 L. J., M. C. 53 ; 4 Cox, C. C. 
 345. 
 
 Where an indictment has been 
 removed by certiorari, under 5 & 6 
 Will. & M. c. 11, s. 3, if the party 
 grieved or injured is, in point of 
 fact, the prosecutor, he will be en- 
 titled to costs, although not bound 
 I over to prosecute, and although an- 
 
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618 
 
 COSTS. 
 
 other person, not a party grieved or 
 injured, was bound over to prose- 
 cute, and was at the trial in pur- 
 suance of his recognizance. Heff. V. 
 Bishop, 6 D. & L. 499 ; 13 Jur. 
 538 ; 18 L. J.,M. C. 63 — B. C— 
 Wightman. 
 
 A society of attornies of a county 
 had prosecuted an indictment against 
 a defendant for practising as attor- 
 ney at the quarter sessions of the 
 city and borough, in the county, 
 without being qualified. The de- 
 fendant removed the indictment by 
 certiorari, and was convicted : — 
 Held, that the society was entitled 
 to costs, under 5 & 6 Will. & M. 
 0. 11, s. 3, as parties grieved. Ih. 
 
 A defendant was committed by 
 the lord mayor of London for trial 
 for an indecent assault. An indict- 
 ment found at the Central Criminal 
 Court was removed into the Queen's 
 Bench by certiorari at the instance 
 of the defendant. The defendant 
 was convicted. The prosecution 
 was conducted by the city solicitor, 
 in obedience to the directions of the 
 lord mayor given at the time he 
 committed the defendant ; and the 
 expenses were defrayed out of the 
 city funds : — Held, that the case 
 was not within 5 & 6 Will. & M. 
 0. 11, s. 3, inasmuch as the lord 
 mayor was not personally liable for 
 the expenses, and could not be con- 
 sidered as a prosecutor. And a side- 
 bar rule, taken out to tax the costs, 
 was set aside. Reg. v. Wilson, 1 
 El. & Bl. 597 ; Dears. C. C. 79 ; 17 
 Jur. 460 ; 22 L. J., M. C. 53 ; 6 
 Cox, C. C. 176. 
 
 The sureties of a defendant, on 
 the removal of an indictment for a 
 misdemeanor by certiorari from the 
 quarter sessions, where the defend- 
 ant has been convicted, are liable to 
 pay the prosecutor's costs, although 
 there is no such undertaking in the 
 condition of the recognizance, or 
 direct provision to that effect in 5 
 & 6 Will. & M. c. 11, s. 3. Reg. 
 v. Hodgson, 7 Exch. 915 ; 21 L. J., 
 M. C. 181 ; S. P., Reg. v. Hawdon, 
 
 1 G. & D. 135 ; 9 D. P. C. 1007 ; 
 5 Jur. 1008. 
 
 Two defendants being indicted 
 jointly in the Central Criminal 
 Court for conspiracy, one of them 
 applied to a judge for a certiorari, 
 who granted it on his entering into 
 a recognizance for the payment of 
 the prosecutor's costs, in case either 
 defendant should be convicted : — 
 Held, that such terms were reason- 
 able, and within the discretion of 
 the judge; and that the 16 & 17 
 Vict. c. 30, s. 5, made no difference 
 in this respect. Reg. Y.Jeioell, 7 
 El. & Bl. 140 ; 3 Jur., N. S. 689 ; 
 26 L. J., Q. B. 177. 
 
 Where an indictment against a 
 corporation, for non-repair of a high- 
 way, is removed by certiorari, at 
 the instance of the prosecutor, the 
 prosecutor is not required by 1 6 & 
 17 Vict. c. 30, s. 5, to enter into 
 recognizances to paythedefendant's 
 costs, in case of acquittal ; indict- 
 ments against corporations being ex- 
 cepted from the operation of the 
 act. Reg. v. Manchester {Mayor, 
 &c.), 7 El. & Bl. 453 ; 3 Jur.,KS. 
 839 ; 26 L. J., M. C. 65. 
 
 An indictment was removed into 
 the Queen's Bench by certiorari ob- 
 tained at the instance of the prose- 
 cutor, who entered into a recogni- 
 zance, with two sureties, conditioned 
 that he should tliere prosecute with 
 effect, and perform all such orders 
 and things as the court should di- 
 rect. The defendants having been 
 acquitted : — Held, that, as the rec- 
 ognizance was not in the form pre- 
 scribed by 16 & 17 Vict. c. 30, s. 5, 
 i. e., conditioned to pay the defend- 
 ants' costs on acquittal, they were 
 not entitled to costs. Reg. v. East 
 Stoke, 6 B. & S. 536; 34 L. J., M. 
 C. 190. 
 
 The 38 Geo. 3, c. 52, s. 12, pro- 
 viding that no indictment shall be 
 removed into the next adjoining 
 county, except the person applying 
 for such removal shall enter into a 
 recognizance in 40?. for the extra 
 costs, does not relate to indictments 
 
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PEACTICE. 
 
 619 
 
 sent by K. B. to be tried in the next 
 adjoining county, after a removal 
 thither by certiorari. Bex v. Not- 
 tingham, 4 East, 208 ; 1 Smith, 51. 
 
 5. Practice. 
 
 Where the order of a town 
 council, being brought up by cer- 
 tiorai-i, is quashed, on motion, with 
 costs, the court should decide who is 
 to be charged with costs as prose- 
 cutor of the order, and the party 
 should be named in the rule. Req. 
 v.Ihmn, 5 Q.B. 959 ; D. & M. 737; 
 8 Jur. 773 ; 13 L. J., Q. B. 237. 
 
 Where an indictment has been 
 removed by certiorari, and judgment 
 given upon it, the court will notice 
 the contents of such indictment on a 
 motion respecting costs of the pros- 
 ecution, without having the record 
 brought before them by affidavit. 
 JReg. V. Wcddegrave {Sari), 2 Q. 
 B. 341 ; 1 G. & D. 615 ; 6 Jur. 502. 
 
 Where an application was made 
 to remove an indictment by certio- 
 rari by one of several defendants, the 
 court granted it upon his entering 
 into recognizances to pay the costs, 
 not only if he was, but if either of 
 the other defendants was, convict- 
 ed. Seff. V. Fcnikes, 1 L. M. & P. 
 720; 20 L. J., M. C. 196— B. C— 
 Patteson. 
 
 Where one of several defendants 
 obtained a certiorari for the remov- 
 al of an indictment into the Queen's 
 Bench, and a procedendo was moved 
 for on the ground that the certiorari 
 improvide emanavit, inasmuch as 
 tlie other defendants had not joined 
 in the application for the writ, and 
 had not, under 5 & 6 Will. & M. 
 c. 11. s. 3, entered into recogni- 
 zances to pay the costs of the prose- 
 cution in case of their conviction : — 
 Held, that the defendant, on whose 
 application the certiorari was grant- 
 ed (being a person to whose respon- 
 sibility there appeared no objection), 
 mio-ht enter into recognizances to 
 pay costs in case of the conviction 
 of himself or of the other defend- 
 ants, or either of them, and that 
 
 under these circumstances the pro- 
 cedendo would not be ordered. 
 Reg. V. Prdbert, Dears. C. C 30. 
 
 A recognizance, in the niargin of 
 which there was the name of the 
 county of W., w^s stated to have 
 been taken before "J. T., esq., one 
 of the justices for the county of 
 W.": — Held, that it sufBciently ap- 
 peared, that the recognizance had 
 been taken in the county for which 
 J. T. was a justice. JReg. v. Hodg- 
 son, Dears. C. C. 14 ; 7 Exch. 915; 
 21 L. J., M. C. 181. 
 
 One of three defendants, jointly 
 indicted for misdemeanor at the 
 Central Criminal Court, obtained a 
 certiorari from a judge at cham- 
 bers, to remove the indictment into 
 the Queen's Bench, and entered in- 
 to recognizance, conditioned to pay 
 the costs of the prosecution if he 
 was convicted, to appear, plead, and 
 try. The other defendants concur- 
 red, but entered into recognizance 
 only to appear, plead, and try. On 
 motion for a procedendo, it was 
 suggested that this course created 
 hardship on the prosecutor, as, if 
 the party removing were acquitted, 
 but the other convicted, the prose- 
 cutor would have no security for 
 costs : — Held, nevertheless, that the 
 judge had a discretion, the exercise 
 of which the court would not re- 
 view, and the procedendo was re- 
 fused. Reg. V. WUks, 5 El. & BI. 
 690 ; 25 L. J., Q. B. 47. 
 
 A defendant had removed an in- 
 dictment by certiorari, and had en- 
 tered into the usual recognizances 
 with two sureties. After a verdict 
 of guilty at the assizes he obtained a 
 rule for a new trial on payment of 
 costs. Without paying the costs he 
 gave notice of trial for the next as- ' 
 sizes to the prosecutor, whp ob- 
 tained a judge's order, by which, if 
 the costs were paid by a certain 
 day, the notice of trial was to stand 
 good, but otherwise to be set aside. 
 The defendant did not pay the costs, 
 did not try the indictment, and died 
 within a few weeks. The prosecu- 
 
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 COSTS. 
 
 tor obtained a side-bar rule to tax 
 his costs, to be paid by the defend- 
 ant or his bail : — Held, that the bail 
 were not liable to pay the prosecu- 
 tor's costs, because they are only lia- 
 ble when the principal has been con- 
 victed ; and that after the granting 
 the rule for a new trial it could not 
 be said that there had been a con- 
 viction within the true meaning of 
 the recognizance, and that neither 
 the defendant's default in paying 
 the costs, nor the judge's order set- 
 ting aside the notice of the trial, did 
 away with the rule for the new 
 trial, or restored the original ver- 
 dict. Reg. V. JSmoen, 7 D. & L. 
 312; 19 L. J., Q. B. 63— B. C— 
 Patteson. 
 
 Held, also, that whether liable or 
 not, the bail ought not to have been 
 mentioned in the side-bar rule for 
 the taxation of costs. Jb. 
 
 If an indictment against several 
 defendants is removed by certiorari 
 without the consent of one, he can- 
 not be compelled to pay the costs of 
 the trial, although he may have ap- 
 peared and pleaded to the indict- 
 ment, and been tried on it. Hex 
 Y. Hassell, 5 D. P. C. 531 ; 2 H. & 
 W. 321. 
 
 Under 5 & 6 Will. & M. c. 11, s. 
 3, the representatives of the prose- 
 cutor are entitled to the costs taxed 
 during his life, though no personal 
 demand was ever made by him. 
 Sex V. Chamberlayne, 1 T. R. 103. 
 
 Where a defendant had removed 
 an indictment from the sessions by 
 certiorari, and was convicted, but 
 died before he could be brought up 
 for judgment : — Held, that his bail 
 was liable to pay the taxed costs of 
 the prosecution, under 5 & 6 Will. 
 & M. c. 1 1 , s. 3. Hex v. Turner, 4 
 D. & R. 816 ; 3 B. & C. 160; S. P., 
 Rex V. Finmore, 8 T. R. 409. 
 
 Where a defendant had removed 
 an indictment, entered into a recog- 
 nizance, been convicted and fined, 
 and the prosecutor received one- 
 third thereof, so much was deducted 
 
 out of the sum for costs. Rex v. 
 Osborne, 4 Burr. 2125. 
 
 On a defendant's acquittal on an 
 information, he is not entitled un- 
 der 4 & 5 Will. & M. c. 18, s. 2, to 
 costs, beyond the extent of the re- 
 cognizance entered into by the pros- 
 ecutor in 201. under that act. Rex 
 V. Filewood, 2 T. R. 145. 
 
 The court, on granting an inform- 
 ation, will not require the prose- 
 cutor to give security for the. costs, 
 in case the defendant should be ac- 
 quitted, beyond the extent of the 
 recognizance in 20?. required by 4 
 & 5 Will. & M. c. 18, s. 2. Rex v. 
 Brooke, 2 T. R. 190. 
 
 An indictment removed by the 
 defendant, and made a special jury 
 cause by the prosecutor, came on to 
 be tried, and was immediately re- 
 ferred. The order of reference 
 stated, that if the arbitrator should 
 be of opinion that the defendant was 
 guilty, and ;the prosecutor entitled 
 to costs, the defendant agreed to 
 pay the costs. The arbitrator did 
 so find : — Held, that the prosecutor 
 could not recover the costs of the 
 special jury, since the judge had 
 not certified for those costs pursuant 
 to 6 Geo. 4, c. 50, s. 34 ; and the 
 order of reference did not expressly 
 give a power of doing so to the ar- 
 bitrator. Rex V. Moate, 3 B. & Ad. 
 237. 
 
 Where a j udge at the assizes re- 
 fused to try an indictment for a 
 misdemeanor (perjury), manifestly 
 bad on the face of it, but did not 
 order it to be quashed, and the pros- 
 ecutor preferred another indictment 
 for the same offence, and removed 
 it into K. B., the court would not 
 call upon the prosecutor to pay the 
 costs of the first prosecution, before 
 he proceeded with, the second. Rex 
 V. Tremaine, 5 D. & R. 413 ; Rex 
 V. Tremeame, 5 B. & C. 761 ; R. 
 & M. 147. 
 
 When a prosecutor has removed 
 the record by certiorari, if the trial 
 is put ofi" by reason of the act of 
 
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PARTICULAR OFFENCES. 
 
 621 
 
 God, the defendant is not liaMe to 
 the costs of the day. Bex v. JBarrett, 
 2 Lewin, C. C. 263— Patteson. 
 
 Where on removing an indict- 
 ment from the sessions, by certio- 
 rari, a recognizance is given by two 
 in 201. each, under 5 & 6 Will. & 
 M. c. 11, ss. 2, 3, to seciu-e the 
 costs, such recognizance will not be 
 discharged till all the costs are paid, 
 though they exceed AQl. Rex v. 
 Teal, 13 East, 4. 
 
 Upon an indictment for perjury, 
 removed by certiorari, if the prose- 
 cutor gives notice of trial to the de- 
 fendant, and withdraws his record 
 countermanding his notice in time, 
 he shall pay costs to the defendant. 
 Bex V. Bartrum, 8 East, 269. 
 
 If a prosecutor, having removed 
 an indictment by certiorari, gives 
 notice of trial for the assizes, and 
 brings down the record, and with- 
 draws it after it has been entered 
 for trial, the judge at the assizes 
 cannot order the prosecutor to pay 
 the defendant the costs of the day ; 
 but a motion must be made in the 
 court of King's Bench. Rex v. 
 Watton, 4 C. & P. 229— BoUand. 
 
 6. Taxation. 
 
 The court of Queen's Bench has 
 no jurisdiction to review the taxa- 
 tion, by the clerk of assize, of the 
 costs of an indictment for libel on 
 the crown side of the assizes. Reg. 
 V. Newhmise, 1 B. C. C. 129 ; 22 L. 
 J., Q. B. 127— Erie. 
 
 7. Enforcing Payment. 
 
 Where a side-bar rule is issued 
 under 5 & 6 Will. & M. c. 11, s. 3, 
 and an attachment is moved for by 
 the prosecutor for non-payment of 
 the costs, it is not necessary to have 
 an affidavit that the prosecutors are 
 the parties grieved. Reg. v. Hills, 
 2 El. & Bl. 176 ; 17 Jur. 714 ; 22 
 L. J., Q. B. 322. 
 
 Where costs of the prosecution of 
 an indictment removed by certio- 
 rari have been proved as a debt un- 
 
 der the defendant's bankruptcy, the 
 court will not issue an attachment 
 against him, or estreat his recogni- 
 zance for non-payment, although 
 they were not taxed in the regular 
 course until after the bankruptcy ; 
 but such proof is no discharge of 
 the bail. Reg. v. HUh, 2 El. & Bl. 
 176 ; 22 L. J., Q. B. 322 ; 6 Cox, 
 C. C. 174; 1 C. L.R.575. 
 
 On the removal by certiorari of 
 an indictment for disobedience of an 
 order of sessions, the defendant and 
 two sureties entered into the usual 
 recognizance under 5 & 6 Will. & 
 M. c. 11, s. 2, which made no men- 
 tion of costs. The defendant was 
 convicted and attached for non-pay- 
 ment of the costs, and the recog- 
 nizance was estreated into the Ex- 
 chequer. On the petition of the 
 defendant and his sureties, the court 
 stayed the proceedings on the re- 
 cognizance as regarded the defend- 
 ant, on account of his poverty, but 
 without prejudice to the liability of 
 the sureties. Reg. v. Thornton', 4 
 Exch. 820 ; 19 L. J., M. C. 113. 
 
 Several defendants were found 
 guilty of a nuisance. The. prosecu- 
 tor being entitled to costs, as a 
 party grieved, under 5 & 6 Will. & 
 M. c. 11, s. 3, obtained a rule for 
 taxing the costs as against all : — 
 Held, that, upon non-payment of the 
 costs, an attachment against one 
 was regular. Reg. v. Dobson, 9 Q. 
 B. 302 ; 10 Jur. 905 ; 15 L. J., Q. 
 B. 376. 
 
 LIX. PAETICUIiAE OfFENOES. 
 
 1 . Compounding Felonies and In- 
 formations. 
 
 Felonies.] — The law does not au- 
 thorize a private person to forego a 
 prosecution upon any terms ; and 
 even if a promise is given and brok- 
 en in such a manner as a jury would 
 consider scandalous, yet, in point of 
 law, that will not make any differ- 
 
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622 
 
 EXTRADITION TREATIES. 
 
 ence. Iteg v. Daly, 9 C.& P. 342— 
 Gurney and Ersldne. 
 
 If, in an indictment for com- 
 pounding felony, it is averred that 
 the defendant did desist, and from 
 that time hitherto had desisted, 
 from all further prosecution ; and it 
 appears, that, after the alleged com- 
 pounding, he prosecuted the offend- 
 er to conviction, the judge will 
 direct an acquittal. Rex v. Stone, 
 4 C. & P. 379— Bosanquet. 
 
 Infonnations.] — The 18 Eliz. c. 
 5, whicli.prohibits the compounding 
 of any offence upon colour or pre- 
 tence of process, or without process 
 upon colour of any offence, against 
 any penal law, does not apply to of- 
 fences cognizable only before mag- 
 istrates; and an indictment for com- 
 pounding such an offence will be 
 bad in arrest of judgment. Hex v. 
 Orisp, 1 B. & A. 282. 
 
 A popular indictment must not 
 be compounded after conviction. 
 Brery q, t. v. Levy, 1 W. Bl. 443. 
 
 On an indictment on 51 Eliz. c. 
 5, s. 4, for compounding an offence 
 against 13 Geo. 3, c. 84, s. 13, 
 and taking money witlv)ut pro- 
 cess to prevent an action being 
 brought : — Held, that the party so 
 doing was liable to the punishment 
 prescribed by the former act for 
 taking such penalty without leave 
 of a court at Westminster, or with- 
 out judgment or conviction. Hexy. 
 Gotley, R. & R. C. C. 84. 
 
 A. threatened B. that he would 
 inform against him for selling spirits 
 without a licence, unless B. would 
 give him a sum of money. B. had 
 not, in fact, sold any spirits, but he 
 gave A. the money to prevent an 
 information :■ — Held, that A. was 
 indictable under 18 Eliz. c. 5, s. 4, 
 although B. had not committed any 
 offence, and although no informa- 
 tion was ever preferred, nor any 
 process sued out. Beg. v. £esL 9 
 C. & P. 368 ; 2 M. C. C. 125. 
 
 LIX. Extradition Treaties. 
 
 In general, 622. 
 With America, 623. 
 
 1. In General. 
 
 By 29 & 30 Vict. c. 121, s. 1, 
 " warrants of arrest and copies of 
 " depositions, signed or taken by or 
 " before a judge or competent mag- 
 "istrate in any foreign state with 
 " which her Majesty may have en- 
 " tered into, or may hereafter enter 
 '• into, any treaty for the extradition 
 " of fugitive offenders, or persons 
 " accused of crime, shall henceforth 
 " be received in evidence if authen- 
 " ticated in the manner following, 
 " that is to say, if the warrant of 
 " arrest purports to be signed by a 
 "judge or other competent magis- 
 " trate of the country in which the 
 " same shall have been issued, and 
 " if the copies of depositions pur- 
 " port to be certified under the 
 " hand of such judge or magistrate 
 " to be true copies of the original 
 " depositions, and if the signature 
 " of the judge or magistrate in each 
 " case shall be authenticated in the 
 " manner usual in the respective 
 " states or countries by the proper 
 " officer of the department of the 
 " minister of justice, and sealed with 
 " the official seal of such minister ; 
 " and all courts of justice and mag- 
 " istrates in her Majesty's dominions 
 " shall take judicial notice of such 
 " official seal, and shall admit the 
 " documents so authenticated by it 
 " to be received in evidence without 
 " of." 
 
 By s. 2, " the act shall be con- 
 " strued with the 8 & 9 Vict. e. 
 "jllS, for facilitating the admission 
 " in evidence of official and other 
 " documents, and also with the 14 
 " & 15 Vict. c. 99, amending the 
 " law of evidence." 
 
 By 30 & 31 Vict, e.^ 143, " the 
 " duration of the act is limited to 
 " the 1st September, 1868." 
 
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WITH AMERICA. 
 
 623 
 
 These provisions, authorising the 
 admission in evidence of copies of 
 depositions certified in the manner 
 therein speciiied, are inapplicable 
 ■where the original depositions are 
 produced, and such original deposi- 
 tions may be received in evidence 
 without being so certified. Dubois, 
 In re, alias Goppin, 12 Jur., N". S. 
 867 ; 36 L. J., M. C. 10 ; 14 W. R. 
 24; 15 L. T., K S. 165; 2 L. R., 
 Ch. App. 47— C. 
 
 " As to the forms of the warrant 
 " of apprehension and of commit- 
 " ment," see 8 & 9 Vict. c. 120. 
 
 2. With America. 
 
 By 6 & 7 Vict. c. 76, s. 1, in case 
 requisition should be made at any 
 time by the authority of the United 
 States, in accordance with a treaty 
 between them and this country of 
 the 9th of August, 1842, for the de- 
 livery of any person charged with 
 piracy committed within the juris- 
 diction of the United States, who 
 shall be found within the territories 
 of her Majesty, it shall be lawful 
 for one of the secretaries of state, 
 by warrant under his hand and seal, 
 to signify that such requisition has 
 been made, and to require all jus- 
 tices of. the peace to govern them- 
 selves accordingly, and to aid in ap- 
 prehending the person so accused, 
 and committing such person to gaol 
 for the purpose of being delivered 
 up to justice : — Held, that the stat- 
 ute has reference, not to acts of 
 piracy jure gentium, which are 
 equally cognisable by all nations, 
 but only to such acts as are consti- 
 tuted piracy by the municipal law 
 of the United States, and which 
 are, therefore, not punishable else- 
 where than in their jurisdiction. 
 Tivnan, or Ternan, In -re, 5 B. & 
 S. 645 ; 11 Jur., N. S. 34; 9 Cox, 
 C. C. 522 ; 33 L. J., M. C. 201 ; 12 
 W. R. 858 ; 10 L. T., K S. 499. 
 
 It is sufiicient if a warrant of a 
 justice, ordering the apprehension 
 of a person, in compliance with this 
 
 statute, is made in the form given 
 by 8 & 9 Vict. c. 120. Ih. 
 
 In order to enable a justice of the 
 peace to issue his warrant under the 
 statute for the apprehension and 
 committal for trial of an accused 
 person, it need n6t appear that there 
 was an original warrant for his ap- 
 prehension in the United States, or 
 depositions taken against him there. 
 Ih. 
 
 The warrant need not allege that 
 the" evidence before him was taken 
 upon oath. Ih. 
 
 In time of peace any acj^ of dep- 
 redation on a ship is prima facie an 
 act of piracy : but in time of war 
 between two countries, the pre- 
 sumption is that depi'edation by one 
 of them on a ship of the other is an 
 act of legitimate warfare. It is im- 
 material whether the act was done 
 by soldiers or volunteers, and wheth- 
 er it was commanded by the bellig- 
 erent state, or when done ratified by 
 it. Ih. 
 
 The 6 & 7 Vict. c. 76, following 
 the language of a treaty between 
 this country and the United States 
 of America, enacts, that all persons 
 charged with the crime of murder, 
 or assault with intent to commit 
 murder, or with the crime of piracy, 
 or arson, or robbery, or forgery, or 
 the utterance of forged paper, may 
 be delivered up to justice, means 
 such acts as amount to any of those 
 ofiences according to the law of 
 England, and the general law of the 
 United States, and does not com- 
 prise offences which are only such 
 by the local legislation of some par- 
 ticular state of the American union. 
 Windsor, In're, 6 B. & S. 522 ; 10 
 Cox, C. C. 118 ; 11 Jur.,N. S. 807 ; 
 34 L. J., M. C. 163 ; 13 W. R. 653 ; 
 12 L. T., N. S. 307. 
 
 A paying teller of a bank at 
 New York, and as such was ac- 
 countable fol- the. cash at the bank, 
 kept the paying teller's book, called 
 the proof book, and proved his cash 
 by it every day. From this book 
 
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624 
 
 EXTRADITION TREATIES, 
 
 the general bookkeeper took his fig- 
 ures to shew the condition of the 
 bank on the general ledger from 
 day to day. The book in question 
 ■was one of the books of account at 
 the bank, and the property of the 
 bank. In it he entered by the pay- 
 ing teller from the receiving teller's 
 books, or from the lists of the de- 
 posits, the money received each day, 
 and also the amounts paid out by the 
 paying teller, or amounts for which 
 the bank was responsible each day. 
 
 The proof book also contained, a 
 statement of the assets of the bank 
 in coin and cash, so that the proof 
 books should each shew each day 
 the exact amount of money in the 
 bank. He falsely and with intent 
 to defraud entered a certain sum in 
 the book as assets of the bank : — 
 Held, that this was not a forgery 
 by the law of England or the gen- 
 eral law of the United States, and, 
 therefore, that he could not be giv- 
 en up under 6 & 7 Vict. c. 76. lb. 
 
 Digitized by Microsoft® 
 
INDEX. 
 
 Abduction of Womek and Chil- 
 dren. 
 
 Wi'men, 31. 
 Children, 34. 
 Jndictinmt, 35. 
 JEvi'dence, 35. 
 
 Aboetion. 
 
 See McEDEK, 353. 
 
 ACCESSOEIES. 
 
 See Pkixcipai.9, 26. 
 
 Adulteeation of 
 Deink. 
 
 Food and 
 
 1 . Se'Uiig Unu-holesome Provisions, 35 
 
 2, Enyrussing or Eegrating, 36. 
 
 Agents. /S^ 
 
 See BlIBEZZLEMENT, 
 
 129. 
 
 Appeehension and Aeeest oe Oe- 
 
 EENDEES. 
 
 Statutes, 602. ' 
 Bi/ Constables and Private Indi- 
 ridwils, 602. 
 
 M'arraiit of Justices, 605. 
 Bench Warrants, 606. . /Z^ 
 See CoiNisG, 93 ; MuKDro7363. 
 
 Aeson and Buening. 
 
 1. Statutes, 36. 
 
 2. The Offence, 36. 
 
 3. Places of Dioine Worship, 37, 
 
 4. JJa-elli)ig-houses with Persons there- 
 
 in, 38. --~ 
 
 5. W/'flt Houses or Buildi^pS,' M. 
 
 6. Riiilway Stations and Buildings, 
 
 7. Pu'i/iC 'Buildings, 40. [40. 
 
 8. 0(A6r Buildings, 40. 
 
 Fish. Dig.— 47. 
 
 Digitized by Microsoft® 
 
 Arson and Burning, (conclucled.) 
 
 9. Properti/ in BuildingP, 41. 
 
 1 0. B_i/ Gun/jowder and Explosive Sub- 
 
 stances, 41. 
 
 1 1 . Crops, Stacks or Woods, 42. 
 
 12. CoiU and oilier Mines, 43. 
 
 13. Parties Indictable, 44. 
 
 14. Indictment, 44. 
 
 15. Evidence, 45. 
 
 Aeticles of Peace. 
 
 1. When exhibitid generally, 607. 
 
 2. Justices, 608. 
 
 3. On passing Sentence, COO. 
 
 4. Piactice, 609. 
 
 Assault and Battery. 
 
 1. Common, 47. 
 
 2. On Clergi/men or Ministers of iJ«' 
 
 ligion, 49. 
 
 3. Oft Magistrates or other Persons 
 
 preserumg Wrecks, 49. 
 
 4. On Peace and other Officers in Ex- 
 
 ecution of Until, 49. [52. 
 
 5. On Seamen, Keelmen or Casters, 
 
 6. On obstiuctiig Sale of Grain or its 
 free Passage, 52. [52. 
 
 7. Arising from Trade Combinations 
 or Conspiracies, 52. 
 
 8. Occasioning actual Bodily harm, 
 
 9. Indictment and Evidence, 53. 
 
 10. Punishment, 54. 
 
 1 1 . Costs of Prosecution, 54. 
 
 12. Summary Conrictions, 54. 
 (a) <S/a«K/e, 54. ^ [56. 
 (h) Complainant or Informant, 
 
 (c) Hearing and Certificate, 56. 
 
 (d) Aggravated uprni Women and 
 Children, 57. 
 
 (e) Amounting to Felony, 58. 
 
 (f ) i^'i'ms, 58. 
 
 13. Indecent and with Intent to ravish 
 — See Kape, Abuse and De- 
 filement OF Women and 
 Childrkn, 428. 
 
 14. With Intent to rob — See BoB- 
 
 BESY. j»-is 
 
 > 
 
626 
 
 INDEX. 
 
 Bail. 
 
 1. Felony, 610. 
 
 2. In Misdemeanors and other Cases, 
 
 611. 
 
 Bigamy. ^ 
 
 , 1. The Offence, 59. [62. 
 
 2. On Absence or Death of Parties, 
 
 3. Whi-re Triatde, 64. 
 
 4. IndictMPnt, 64. 
 
 5. Euidence and Witnesses, 65. 
 
 BUKGLAEY AND HotTSEBKEAKING. 
 
 1. Statutes, 66. 
 
 2. Breaking and Entering, 67. 
 
 3. Brenking out, 68. 
 
 4. Jk/ Lodqers, 69. 
 
 5. VK/i"« is Night-time, 69. 
 
 6. l^/ifi< is a Dwelling-house, 69. 
 
 7. W/ia( /s no* a Dwelling-house, 71. 
 
 8. Breaking into Churches and Places 
 
 of Divine Worship, 72. 
 
 9. J'Ae Curtilage, 73. 
 
 10. On-nership, 74. 
 
 11. 7nte//<, 75. [76. 
 
 12. Armed with Intent to break or enter, 
 
 13. iiiealint; in a Dwelling-house, 77. 
 
 14. In Schouls, Shops, Warehouses or 
 
 Counting-houses, 78. 
 
 15. Parties Indictable,*79. 
 
 16. Indictment, 79. 
 
 A n.f. Evidence and Tiicd, SI. 
 
 Childeen. 
 
 See Abduction, 34 ; MueDeh, 366; 
 Peksons capable of ^Crimes, 
 
 C-v^-i 
 
 24; ],lAPE 435. .. /i^,vtf-v.d 
 J 
 
 Coining. 
 
 1. Statutes, 82. 
 
 2. Interpretation, 82. 
 
 3. irAii( is Coining, 83. 
 
 4. Colouring, 85. 
 
 5. Impiiring or Lightening Gold or 
 
 Siliter Coin, 85. [86. 
 
 6. Bmjing or Selling Counterfeit Coin, 
 
 7. Exchanging Coin at higher than its 
 
 Value, 87. 
 
 8. Importing or Exporting Counterfeit 
 
 Coin, 87. 
 
 9. Di facing Cold, Silver or Copper 
 
 Coin, 87. 
 
 10. Testing Genuineness of Gold or 
 
 Silver Coin, 87. 
 
 1 1. Counterfeiting and uttering Copper 
 
 Coin, 88. 
 
 12. Counterfeiting and uttering Foreign 
 
 Coin, 89. 
 
 13. Implements of Coining, 90. 
 
 14. Unlawful Possession of Base Coin, 
 
 Filings or Clippings, 93. 
 
 15. Uttering, 94. 
 
 Coining, (concludad.) ■ 
 
 16. When Offence complete, 97. 
 
 17. Eridenci-, 98. 
 
 18. Previous Conviction, 98. 
 
 19. Validitij of Convictions and Com- 
 
 mitments, 99. 
 ' 20. Conveying Coining Tools or Coin 
 from the Mint without Authority, 
 99. 
 
 21. Power to seize Counterfeit Coin and 
 
 Coining Tools, 99. 
 
 22. Apprehension of Offenders, 99. 
 
 23. Prosecution and Trial of Offen- 
 
 ders, 100. 
 
 24. Punishment of Offenders, 100. 
 
 25. Costs of Prosecution, IW. 
 
 26. Actions against Persons acting in 
 ] pursuance of the Statute, 101. 
 
 COXCBALMENT OF THE BlETII Of 
 
 Childeen. 
 
 1. The Offence, 101. 
 
 2. Indictment, 104. 
 « 3. Evidence, 105. 
 
 CONSPIEACY. / 
 
 1. The Offence, 105. 
 
 2. Trade Combinaiions, 107. 
 
 3. Parties Indictable, 109. 
 
 4. Indictment, 109. 
 
 5. Particulars of Overt Acts, 113. 
 
 6. Evidence, 113. 
 
 7. Trial and Verdict, 117 . 
 
 „ , 8. New Trial, 118. i, 
 
 1. Expenses of Prosecution, 613. 
 
 2. Rewards for ertmordinary Exer- 
 
 tions and Diligence, 615. 
 
 3. 7n o(Ae?' Cases, 615. 
 
 4. 4/"'^'" Hemon.il by Certiorari, 615. 
 
 5. Practice, 619. 
 
 6. Taxation, 621. 
 
 7. Enforcing Payment, &11. 
 
 See Coining, 100: Fobgekt, 
 229. 
 
 Counsel. 
 
 1. Appearance and Defence by, 529. ' 
 
 2. Addressing the .lury, 530. 
 
 3. Right of 'R-ply, 532. 
 
 4. Summing up Evidence, 533. 
 
 Ceiminal Information - 
 
 GEANTED. 
 
 ■ When 
 
 1 . General Principles, 1 . 
 
 2. Ex-offii:io by the Attorney- Gen- 
 
 eral, 2. 
 3' For Libellous Publications, 2. 
 
 (a) Whaiare,2. 
 
 (b) Who entitled to, 3. 
 
 Digitized by Microsoft® 
 
INDEX. 
 
 627 
 
 ^^^^^ 
 
 0^-^r^'- 
 
 
 >: 
 
 At 
 
 Criminal Information, (concluded.) 
 
 ( '• ) Necessary Affidavits, 4. 
 (ri) Proof of Publication, i. 
 
 (e) Form and Validity of In- 
 formation, 5. 
 
 (f ) Justifying Publication, 6. 
 (c) Cos^s, 7. 
 
 Affiiinst Magistrates, 7. 
 (h) Grounds, 7. 
 
 (b) Time of Application, 9, 
 
 (c) Notice of Application, 9. 
 
 5. Sending a Challenge, 10. 
 
 6. -Aqainst Parish Officers, 11. 
 
 7. 7n OMct- Cases, 11. 
 
 8. Application for Information, 13. 
 
 9. rime, 13. 
 
 10. Affidavits, 13. 
 
 1 1. OMc-r Points of Practice, 15. 
 a-5*s, 16. 
 Conviction, 16. 
 
 "Em^zlembnt and Feauds by 
 U^AJC^-^- Agents, Bankers, Teus- 
 
 la'i TEES AND OtIIEES. 
 
 ■■<^2-^ 1. Agents and Bankers, 139, 
 : 2. Trustees, 142. 
 
 3. Directors, Mi mbers and Officers of 
 
 Companies, 143. 
 
 4. Disclosure of Circumstances, 144. 
 
 5. Jurisdiction of Quarter Sessions, 
 
 144. 
 
 6. By Traders. 
 
 CukL 
 
 12. 
 13. 
 
 Embezzlement by 
 Seevants. 
 
 Cleeks and 
 
 1. The Offence, 118. 
 
 2. Amountinij to Larceny, or Embez- 
 
 zlement, 134. 
 
 3. Indictment, 136. 
 
 4. Particulars of Charges, 137. 
 
 5. Ecidence, 138. 
 
 Eeeoe and Appeal. 
 
 1. £'rior, 590. 
 
 2. WAm an ^ppeaZ &s, 594. 
 
 3. Court o/' Criminal Appeal, 594. 
 
 4. iiu/es and Practice, 595. 
 
 Escape, Rescue and Peison 
 Beeacu, 600. 
 
 Evidence. 
 
 1. Confessions and Admissions, 535. 
 
 2. Depiisitions, 550. 
 
 ("hJ Jl/ot/e of taking, 550. 
 ("Ii^ Returning, 555. 
 fcj Illness, Death, Insanity or 
 Absence of Witnesses, 557. 
 
 Evidence, (concluded.) 
 
 (d) Examination on, 559. 
 (ej Copies, 561. 
 
 3. Presumptions or Probabilites of 
 
 Guilt, 562. 
 
 4. Accomplices, 562. 
 
 5. Government Spies, 564. 
 
 6. Competency of Witnesses, 565. 
 
 7. Compelling Attendance, 568.* 
 
 8. Swearing, 568. 
 
 9. Ordering to leave Court, 570. 
 
 10. Names on Back of Indictment, 570. 
 
 11. Dedarations in Articulo Mortis, 
 
 571. 
 
 12. Examining and Cross-examining 
 
 Witnesses, 571. 
 
 13. Declining to answer, 572. 
 
 14. Evidence of Character, 573. 
 
 15. Evidence of Identity, 574. 
 
 16. Privileged Cummunic itions, |/4. 
 
 17. Ecidence of oilier similir Offences, 
 
 18. Previous Conviction, 576. [576. 
 3 19. Maps or Pltms, ^7S. 
 
 20. Letters, 578. 
 
 21. Proof of Handwriting, 579. 
 
 22. Proof of Doniiuents by attesting 
 
 Witnisses, 579. 
 20. Notice t'l produce, 579. 
 
 24. Production and Inspection of Doc- 
 
 uments, 580. 
 
 25. On o(Ae)- Pom's, 580. 
 
 &c Abduction-, 35 ; Absos, 45 ; 
 Bigamy, 65; Burglary, 81; 
 Coining, 98 ; Conckalment 
 OF Births, IU5; Cunspiract, 
 113; Kmbhzzlement, 138; 
 False Pretknces, 167 ; Fokg- 
 ERY, 225 ; Laecenv, 304 ; 
 Murder, 371 ; Pkk.tury, 411; 
 Kight Poa. hisg, 391 ; Prin- 
 cipals, 30; Kapk, 432; Riots, 
 442 ; KoBBEitY, 449 ; Threat- 
 ening Letters, 466. 
 
 EXTEADITION TeEATIES. 
 
 1. In general, 622. 
 ^. 2. With America, 623. 
 
 False Peetenci^ and Cheats. 
 
 1. Statutes, 145. 
 
 2. What are, 146. 
 
 (a) Geneial Principles, 146. 
 (bj By means of False Orders, 
 151. 
 
 (c) By means of False Accounts, 
 
 152. 
 
 (d) By means of Contracts, 153. 
 
 (e) As to the Quality of Articles 
 
 of Merchandise, 155. 
 
 (f ) As to tliK Quantity or Weight 
 
 of Articles of Merchandise, 
 156. [158. 
 
 (g) By Promises of Marriage, 
 
 DigitizetJ by Microsoft® 
 
628 
 
 INDEX. 
 
 FcAse Pretences, (concluded.) 
 
 3. 
 
 4. 
 
 5. 
 6. 
 
 7. 
 
 8. 
 
 9. 
 
 10. 
 
 &I.M. 
 
 By mnms of CJifques, Bills 
 of Exchancje or Promissory 
 Notes, 158. 
 (i) By jiassing off Flash or 
 Worthless Bank Notes, 
 160. 
 ( j ) In respect of whit Chattels or 
 Securities, 161. 
 CheMts, 162. 
 
 Inducing persons hi/ Fraud to exe- 
 cute or destroy Val'tahle Securities. 
 Amounting luLnrceni/, 163. [162. 
 Parties Indictable, 164. 
 Jnd'C'meid, 164. 
 Evidence, 167. 
 'J'rial, 169. 
 
 R<cnvitig Property obtained by 
 :lse Pretences, 170. 
 
 Detaini 
 
 FOECIBLB EntET and 
 
 Fqegeet. 
 
 iX.' 
 
 Slntn'es, 17*3. 
 
 Whut is Forgery, 1 74. 
 The Jristriilueni, 176. 
 
 (tt) Bunk Nutes, 1 76. 
 
 (\i) Bills of Exchange and Pro- 
 missory Notes, 182. 
 
 (c) Cheques, 188. 
 
 (d} Do uments purporting to be 
 m ide Ahrond, 189. 
 
 (c) Gnirt Rolls, 190. 
 
 (f) Debeutii.es, 190. 
 
 (/) Dtedsor Binds, 190. 
 
 (h) Eviden'ial Instruments, \^\. 
 
 (\) Exrhequer Bills or Bonds, 
 191. 
 
 Q) India Bonds, Stock or Cer- 
 tificates, 193. 
 
 (\j Marriage Licenses and Cer- 
 titiraies, 193. 
 
 Q) Orders and Proceedings of 
 Migistrates, 193. 
 
 ('m_) Records, Judicial and Cu- 
 rial Process, 1 94. 
 
 fn) Registers of Births, Mar- 
 riages and Deaths, 196. 
 
 (o) Registries of Deeds, 197 . 
 
 (p) Seals of the Kingdom, 197. 
 
 Indictment, 47a. ' 
 
 4. 
 
 Slam/is, 198. 
 Trade Marks, 199. 
 Transfer of Stock or Shares, 
 
 199. 
 Warrants, Orders, Under- 
 takings, Requests and Re- 
 ceijits for Goods or for 
 Money, aoi. 
 Tra/s,212. 
 fv) Instruments o'henoise desig- 
 
 ■nated,2]3. 
 Obtaining Pioperty upon Forged 
 Instruments, 214. 
 
 CO 
 
 (n) 
 
 Forgery, (concluded.) 
 
 5. Parties Indicta'tle, 214. 
 
 6. Indictment, 2\^. 
 
 7. Allegation and Proof of Intent to 
 
 defraud, 220. 
 8.- Jurisdiction- lEo fry, 222. 
 9. Election of Forgeries, 223. 
 
 10. Uttering, '223. 
 
 11. Evidence, 225. 
 
 12. Witnesses, 229. 
 
 13. Power to seize Forqed Instruments 
 
 or Implements, 229. 
 
 14. Pnnishnent, 229. 
 
 15. Costs of Prosecution, 22^. 
 
 GoVeenmejstt Stores, ^29. 
 
 GfepOWDEE. 
 
 ■1(^.T.351 
 
 1 . Illegal Making, Use and Employ- 
 
 ment, 231. 
 
 2. Intent to murder hy — .See Mur- 
 
 der, AND OfFE.NSKS against 
 THE PKK'SnX. 
 
 3. Inflicting Injuries by — See Mdk- 
 
 DER. 
 
 See Arson, 41 ; Murder, 364. 
 
 See Abductiov 35 ; Arson, 44; 
 Assault, 53; Higamy, '64; 
 BuRGi-ABV. 79; CovspiRAcr, 
 
 109; CovCEAI.MKNTOr UlRTHS, 
 
 104; Malicious K.tl'rt, 321; 
 Emekzzli'.mkvt, i36; False 
 Pretexci-.s, 11)4; Korgert, 
 215; L\rcknt, 298; Murder, 
 370; NiGiiT PoiciiiNG, 390; 
 PkiscppaL", 29; Pkocedure, 
 473; PKHjintv, 403; Rape, 
 431; Riots, 441; Thea»on,000 
 lioEnt'RV, 4 19; Threaten- 
 Ikg Letters, 465. 
 
 JifrfiGSiisN* AND Sentence 
 
 1 . Form and Entry qenerally, 585. 
 
 2. At Nisi Pr iis.'^iS. 
 
 3. Brinqingvp lief are Court of Queen's 
 
 Bench', ^-i^. 
 . 4. Arre<it of 590. 
 5. Recersai, 590. 
 
 Oe Juries and Challenges. 
 
 1. Grand, 529. 
 
 2. Jurt/men, 521. 
 
 3. Ch'dlenge-i, 523. 
 
 4. View, 527. 
 
 5. Lorking-up, 537. 
 
 6. Discharge of, 527. 
 
 7. Jury Process, 528. 
 
 Digitized by Microsoft® 
 
INDEX. 
 
 629 
 
 ahng, 232. 
 
 of 
 
 16. 
 17. 
 
 
 CO 
 0) 
 
 0) 
 
 2. 
 
 General Principles, 232 
 On Sale or Purchase 
 
 Goods, 238. 
 Bi/ a Trick or a Fraud, 240. 
 On Breach of Contract to 
 sell, 243. 
 (e) By Hirers of Property, 244. 
 (Q From Bailees at Common 
 Law, 244. [245. 
 
 fg} Bfi Bailees at Common Law, 
 f lij Bfi Pawning Property, 246. 
 Means of facilitating or de- 
 tecting Larceny, 247. 
 In Case of Lost Property, 
 
 247. 
 Pecenry of Possession of 
 
 Stolen Property, -250. 
 Servants taking Master's 
 Com for feeding Horses, 
 251. 
 (m) By Husband and Wife, 251. 
 (n) By Wife's Paramour, 252. 
 (o) By' Clerks or Servants, 253. 
 (\>) By Fraudulent Bailees, 25i. 
 (<\) By Parties in concert, 260. 
 By Persms in the Queen's Service, 
 or hy the Police, 260. 
 
 3. By Post Office Servants and Others 
 
 4. In a Duelling-house, 2&i. [261. 
 
 5. From the Person, 266. 
 
 6. By Tenants or Lodgers, 267. 
 
 7. In Manufartorits, 267. 
 ?. From Mines, 268. 
 
 9. In Ships in Ports or on Navigable 
 Rives and Wharves, 269. 
 
 10. Abroad or on the High Seas, 269. 
 
 1 1 . Stealing or destroying Written In- 
 
 struments, 270. 
 
 1 2 . Stealing or destroying Trees, Shrubs, 
 
 Vegelabli s and Fences, 271. 
 
 13. Attempts to commit Larceny, 274. 
 
 14. Subject-matter of Larceny, 274. 
 
 15. Leltersaiid Government Documents, 
 Fixtures. 278. [277. 
 Cuttle and otlur Animals, 279. 
 
 fa) Statute, 279. 
 
 (b) Horte Stealing, 279. 
 
 (c) Cattle, 281. 
 (i\) She^ep Stealing, 281. 
 
 (e) Deer, 282. 
 
 (f) Dfves or Pigeons, 284. 
 (jr) Fishf 2Si. 
 
 (ii) Dogs, 286. [287. 
 
 (\) Birds and other Animals, 
 (i) Carcasses or Skins, 288. 
 
 The Ownership, 289. 
 
 Bereivers of Stolen Property, 294. 
 (a,) Statutory Provisions, 294. 
 (h) Who are Receivers, 295. 
 ("cj Joint Receivers, 296. 
 ("(1) Husband and Wife, 2^1. 
 Inaictuunt for Stealing and Re- 
 ceiving, 298. 
 
 (a) Stealing, 298. 
 
 (b) Stealing and Receiving, 301 . 
 
 18. 
 19. 
 
 20. 
 
 Larceny, etc., (concluded.) 
 
 21. Jurisdiction to try, 303. 
 
 22. Eoidence,.30i. 
 
 23. Punishment, 307. 
 
 , 24. Restitution and Recovery of Stolen 
 
 Malicious Injubt to Propeett, 
 Cattle and . other An- 
 imals. 
 
 1 . Houses or Buildings, by Tenants, 
 310. 
 
 Manufactures and Materials, 310. 
 
 Machinery, 312. 
 
 Mines, 313. 
 
 Sea and River Banks, 31 5. 
 
 Ships and Sea Signals, 315. 
 
 Fish Ponds, 317. 
 
 Trees, Shrubs, Fences efnd Vege- 
 tables, 318. 
 
 Hopbinds, 320. 
 
 Worts of Art, 320. 
 
 Indictment, 321. 
 
 Amount of Injury, 321. 
 Witnesses, 321. ' 
 
 Killing or Maiming CceHh or other 
 Animals, 322. 
 
 Railways and Telegraphs — See 
 XXX. Railways, 425. 
 
 9. 
 10. 
 11. 
 12. 
 13. 
 14. 
 
 15. 
 
 * XXX. liAIMVAYS, 425. J 
 
 Mines. ^ 
 
 Sec Arson, 43 ; Latjcent, 268 ; 
 Malicious Injcut, 313. 
 
 MiSDEMEANOES. 
 
 1 . What Indictable in general, 323. 
 
 2. Attempt to commit, 324. 
 
 MuEDEE, Manslaughtee, and Of- 
 fenses AGAINST THE JPeE- 
 SON. 51<.'- V ''■'-•>-•■ ^ ''•'''■< k 
 
 1. Murder, 32^. J 
 
 2. Manslaughter. 3.34- 
 
 3. Abroad and at Sea, 346. 
 
 4. Principals, Accessories and Abet- 
 
 tors, 349. 
 
 5. Conspiring, or Soliciting to commit 
 
 Murder', 350. 
 
 6. Attempts to Murdfr and Inflicting 
 
 grievous Bodily Harm, 350. 
 (&) By Administering Poison, 
 350. 
 
 (b) With Intent to procure Mis- 
 
 carriage or Abortion, 353; 
 
 (c) By Shooting, Wounding, 
 
 Drowning, Suffocating or 
 ' Strangling, 354. 
 
 (i) Inflicting Grievous Bodily 
 Harm, 358. 
 
 (e) By Resisting or Preventing 
 the Apprehension or De- 
 tainer of Persons, 363. 
 
 Digitized by Microsoft® 
 
630 
 
 INDEX. 
 
 10. 
 
 11. 
 
 12. 
 13. 
 
 
 14. 
 
 t/hu^Syj^x,^'^! 
 
 etc., (concluded.) 
 
 ff) By Means of Gunpowder or 
 other Explosive Substan- 
 ces, 364. 
 
 (g) Bi] setting Fire to or casting 
 away Ships, 365. 
 
 (h) Prermtinq Rescue from 
 Shipwreck, 365. 
 
 (i) Bii other Means, 365. 
 Spring Guns, 366. 
 IlJlrfating Children, Apprentices, 
 
 Servants,' Idiots, and Helpless 
 
 Persons, 366. 
 
 («) The Off'ence,366. 
 
 (h) Indictment, 370. 
 
 (cj Evidence, 37\. 
 Injuring Persons by Wanton or 
 
 Furious Driving, 371. 
 Indictment for Murder and Man- 
 
 sliivghter, 371. 
 Declarations in Articulo Mortis, 
 
 375. 
 E'idence and Witnesses, 380. 
 Trial, Judgment, and Execution 
 
 in Murder', .S82. 
 Punishment for Manslaughter, 383. 
 
 New 
 
 581. 
 
 Night PoACinisrG and Offenses 
 
 RELATING TO GaME, 
 
 Haees and Rabbits. 
 
 1. The Offence, 384. 
 
 2. Limitation of Time for Prosecu- 
 
 tion, 389. 
 
 3. Indictment, 390. 
 
 4. Eridence, 391. 
 
 5. Convii-t'onsand Commitments, 392. 
 
 6. Hares or Rabbits, 392. 
 
 d 
 
 Obscenity and Indecbnct, 
 
 i/n^ 
 
 1. Obscene Prints and Pictures, 393. 
 
 2. Indecent Exposure, 393. 
 
 Opficebs. 
 
 See Embezzlement, 143. 
 
 Paedon, 601. 
 Parties Indictable. 
 
 See RuEGLART, 99; Conspikact, 
 169; False Pketenoes, 164; 
 
 FOKGEKY, 214. 
 
 Pbejuey, False Oaths and False 
 Declaeations. 
 
 1. Fake Oaths, 395. 
 
 2. On Affidavits, 398. 
 
 3. Before Justices, 400. 
 
 4. Before Surrogates, 402. 
 
 Perjury, etc, (concluded.) 
 
 5. Before Arbitrators, 402. 
 
 6. Ini/ictment and' fnformation, 403. 
 
 7. Amendment of Variances, 410 
 
 8. Evidence, 411. 
 
 9. Proof by Judges' Notes of Evidence 
 
 414. [414. 
 
 10. Proof of Particular Averments, 
 
 11. Proof of Indictment, 416. 
 
 12. Witnesses and Corroborative Evi- 
 
 dence, 416. 
 
 13. Trial, 418. 
 
 14. False Declarations, 419. 
 
 (a.) Customs, 419. 
 
 fb} On Rtgistraiion of Voters 
 andat Parliamentary Elec- 
 tions, 419. 
 
 Xc) Corpora'e, 420. 
 
 ((\) BeJ'ore Magistrates, 420. 
 
 (ej On Reqistration of Births, 
 Deaths or Marriages, 421 . 
 
 15. Seditious Practices and tjnlawful 
 
 Oaths, 422. 
 
 Personation. 
 
 1. Stockholders, 423. 
 
 2. Seamen and Saddlers, 423. 
 
 Persons capable of committing 
 Crimes and Misdemean- 
 ors. 
 
 1. Agents, 17. 
 
 2. Insane Persons, 1 7. 
 
 3. Deaf and Dumb, 21. 
 
 4. Presumed Coercion of Wife, 22. 
 
 5. Drunkards, 23. 
 
 6. Foreigners, 23. 
 
 7. Cvrporaliuns, 24. 
 
 8. Infants, 24. 
 
 9. Peers, 24. 
 /\. ip. Per^otfs lyider Compulsion, 24. 
 
 Poisoning. 
 
 r imder 
 
 Xs: 
 
 1 . Placing Poison in Plantations, i2i, 
 
 2. Murder by — 6Ve Murder. 
 
 3. Admini^tei ing with Intent to Mur- 
 
 der — See M II R riE K. 
 
 4. To procure Abortion — See Mur- 
 der.' 
 
 , DER. - . 
 
 Prize FiSft^s, 425. 
 
 Principals, Accessories and 
 Abettors. 
 
 1. Principals, 25. 
 
 2. Accessories, 26. 
 
 3. Abettors, 28. 
 
 4. rna/, 28. 
 
 5. Indictment, 29. 
 
 Digitized by Microsoft® 
 
 6. Evidence, 30. 
 
INDEX. 
 
 631 
 
 Peocedube and Pkactice. 
 
 I. Indictment, 473. 
 
 (a) For what it lies, 47.3. 
 
 (h) Disohpyinq Orders of Justices 
 
 and Others, 474. 
 (o) Quashim}, 475. 
 (cl_) Trial when Indictment is not 
 
 flood, 477. 
 fa) Finding, ill. 
 
 (f) Ignoring, 477. 
 
 (g) Previous binding of Prose- 
 
 cutor, 477. 
 (h) Co/ii/ of Indictment, 480. 
 (i) Veriue, 481. 
 f}) Caption, 486. 
 (k) Sei'eral Counts, 487. 
 (\) As to the Allegations, 487. 
 (m) Description of the party ac- 
 cused, 489. ' 
 (n) Alleqntions of Time and 
 
 Place, 489. 
 (o) Name of Party Injured, 
 
 490. 
 (p) Description of Property or 
 
 Instrument, 492. 
 (q) Value, 493. 
 (r) Contra Pacem and Contra 
 
 Forniam Statnti, 494. 
 (s) Of joining Offences and 
 
 Electing, 495. 
 ( t^ Time tirid Mode of raimig 
 
 Formal £)bject!6nsii97. 
 (a) .Amendment 498. 
 (\y Nolle Prosequi, 502. 
 
 2. Central Criminal Court, 502. 
 
 fa) Jurisdiction, 502. 
 
 3. Trtal, 503. 
 
 (a) Jnrisdiction, 503. 
 
 (h) Arraignment and Plea, 504. 
 
 (c) Withdrawing Plea of Not 
 Guilty, 505. 
 
 ((\) Standing in the Dock, 505. 
 
 (e) Rcadinq Indictment, 505. 
 
 (t) Separate Trial, 506. 
 
 (g) Riqlit (f Acquittal on Indict- 
 ment of Several, 506. 
 
 (h) Poxtpiming or Adjourning, 
 506. 
 
 (\) Illmss of Prisoner during 
 Trial, 508. 
 
 Q) Trial un a Verdict in a CM 
 Case, 508. 
 
 Qa) Tendering Bill of Excep- 
 tions. 
 
 4. Pleas in Abatement, 509. 
 
 5. Pleas of Autrejois Convict and 
 
 Acquit, 509. 
 
 6. Demurrers, 514,. 
 
 7. Berognizances, 5\^. 
 
 8. Commissions and Gaol Delivery, 
 
 517. 
 
 9. Restoring Money found on Prison- 
 
 ers, 518. 
 10. Contempt of Court, Std. 
 
 II. Affidavits^ 519. 
 
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 Punishment. 
 
 ■ 1. Penal Servitude, 507. ' 
 2. Returning therefrom, 598. 
 
 Railways and Tblegeaphs. 
 
 1 . Endangering Safety of Persons on 
 
 Railways, 425. 
 
 2. Obstructing Engines or Carriages 
 
 on, 427. 
 
 3. Injuring Telegraphs, 427. 
 
 See Arson, 40; Malicious In- 
 jury, 425. 
 
 Rape, Abuse and Deeilbsient 
 OF Women and Child- 
 
 EEN. 
 
 1. Rape, 428. [430. 
 
 (&) Who capable nf Committing, 
 
 (b) Upon wliom Committed, 430. 
 
 (c) Accomplishment or Comple- 
 
 tion, 431. 
 (A) Indictment, 431. 
 (e) Evidence, 432. 
 OJ Where Triable, 435. 
 
 2. Abuse of Children, 435. 
 
 3. Defilement, 438. 
 
 Riots and Unlaavful Assem- 
 blies. 
 
 1 . Nature and Character, 439. 
 
 2. Illegal Traininq and Drilling, iW. 
 
 3. Duties of the ilagistraci/, 440. 
 
 4. Aiding and Assisting the Consta- 
 
 bulary, 44 1 . 
 
 5. Indictment, 441. 
 
 6. Eridence, 442. [442. 
 
 7. Injuries to Property by Rioters, 
 
 ROBBEBT. 
 
 1. The Offence, 445. 
 
 2. Garottivg, 448. 
 
 3. Indictment, 449. 
 
 4. Evidence, 449. 
 
 5. Assault with Intent to Rob, 450.- 
 
 6. Punishment of Whipping, 452. 
 
 Sanitary Laws, 452. 
 Sea, Offences at, 453. 
 
 Seakch Waekants, 606. 
 Sedition, 454. 
 Sepulture. 
 
 1. Desecration, 454. 
 
632 
 
 INDEX. 
 
 Sodomy and Bestiality, 455. 
 
 Suicides and Self Maiming, 457. 
 
 Threatening Lettebs and Men- 
 aces. 
 
 1. Statutes, 457. 
 
 2. Demanding Money or Valuables 
 
 viith Menaces, 457. 
 
 3. Threatening to accuse of Crime, or 
 
 with Intent to Extort, 460. 
 
 4. Letters threatening to Burn or De- 
 
 stroy, 463. 
 
 5. Letters threatening to Murder, 464 
 
 6. Threatening to sue for Penalties 
 
 464. 
 
 7. T/ireatenini/ to Publish Defamatory 
 
 Matter, 464. 
 
 8. Persons Indictable, 465. 
 
 9. Indictment, 465. 
 10. Eoidence, 466. 
 
 Teeason. 
 
 1. The Offence, 467. 
 
 2. Indictment, Lists of Witnesses, 
 
 Jury, Eoidence, Trial and Judg- 
 ment, 468. 
 
 Tebasure Teotb, 472. 
 
 Tkial, 503. 
 
 See Coining, 100; Conspikact, 
 117, 118; False PbetenceS, 
 169; Mdedeb, 382; Pjsejdet, 
 418; Principals, 28: Pkoce- 
 DUEE, 477. 
 
 Teustjies. 
 . See Embezzlement, 142. , 
 
 Veedict, 580, 
 
 1 
 
 Witnesses. 
 
 See Abduction, 31 ; Bigamy, 65 ; 
 FOBGBKT, 229; Mahcious In- 
 JDET, 331 ; Peejuet, 416. 
 
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 See Etidbnce, 535; Laecent, 251, 
 297. ' 
 
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