fb. CHANCErV lANE, UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY i^^t^\^ /M-^c^i^-rl /A^^^^-l-^. A DIGEST OF THE CRIMINAL LAW A DIGEST OF THE CRIMINAL LAW (CEIMES AND PUNISHMENTS). BY THE LATE SIR JAMES FITZJAMES STEPHEN, BART. Ill K.C.8.I., D.C.L. FORMERLY ONE OF THE JUDGES OF THE HIGH COURT, AND AN HONORARY FELLOW OF TRINITY COLLEGE, CAMBRIDGE. FIFTH EDITION BY SIR HERBERT STEPHEN, BART. OF THE INNER TEMPLE, BARRISTER-AT-LAW CLERK OF ASSIZE FOR THE NORTHERN CIRCUIT, AND HARRY LUSHINGTON STEPHEN, OF THE INNER TEMPLE, BARRISTER-AT-LAW ; ESQUIRE. J ***■ ?lontion MACMILLAN AND CO. AND NEW YORK 1894 All livjlds Reserved T St43Cpc Richard Clay axd Sons, Limited, LONDON and BUNGAY First Edition 1S77, Second 1S79, Third 1SS3, Fourth 18S7, Fifth 1S9-1. PEEFACE TO THE FIFTH EDITION Iisr preparing tliis Edition of the Digest of the Criminal Laiv, we have endeavoured to make it as nearly as possible what it would have been if it had been prejDared by the Author. Not many cases of the first importance have been decided since the publication of the Fourth Edition at the beginning of 1887. R. v. Tolson, 1889, 23 Q.B.D. 168, R. V. Broivn, 1889, 24 Q.B.D. 357, Connor v. Kent, 1891, 2 Q.B. 545, and all other cases which seem either to alter, or more fully to expound the law, have been incorporated either in the text or by way of illustration. The principal statutes altering the law as to indict- able offences, or creating new ofi'ences enacted in the same period, are the Merchandise Marks Act 1887 (50 & 51 Vict. c. 28) ; the Newspaper Libel Act 1888 (51 & 52 Vict. c. 64); the Official Secrets Act 1889 (52 & 53 Vict. c. 59)— a marvellous specimen of drafting; the Corruption of Public Bodies Act 1889 (52 & 53 Vict. c. 69) ; the Lunacy Act 1890 (53 Vict. c. 5) ; the Stamp Duties' Manage- ment Act 1891 (54 & 55 Vict. c. 38); the Penal Servitude Act 1891 (54 & 55 Vict. c. 69); the 783175 PREFACE Prevention of Cruelty to Children Act 1894 (57 & 58 Vict. c. 41) ; and the Merchant Shipping Act 1894 (57 & 58 Vict. c. 60). These, with some others of less importance, will be found in the appropriate parts of the work. When the book was originally published in 1877, it contained 398 Articles. In the Second, Third, and Fourth Editions a considerable number of Articles were added, but the numeration was left unaltered, the subsecjuently inserted Articles being distinguished by letters {e.g., " 262 A"). We think the time has now come to renumber the Articles, and have accordingly numbered them consecutively throughout the work. There are not many more than in the Fourth Edition, but they amount in all to 444. We have taken advantage of the provision of the Penal Servitude Act 1891, to the general effect that power to pass any given sentence of penal ser- vitude includes power to pass a sentence of im- prisonment with or without hard labour, and of the consequent repeal by Statute Law Kevision Acts of words thus made redundant, to shorten the Articles by omitting the words "as a maximum punishment," and the statements of alternative punishments of imprisonment. The footnotes have of course undergone some modification, but wherever any statement they contain is made in the first person singular the words are those of the Author. We have added at the end of the book an alpha- betical table of Indictable Ofi'ences, including a PREFACE statement of the offence, whether felony or misde- meanor, whether an offence at common law or created by what statute, the punishment, whether trial)le at Quarter Sessions, and the page at which it may be found. It is not exhaustive, as there are probably from one to two hundred indictable offences omitted, of which most are perjury, forgery, or offences which only a small class of persons can commit. It may be worth while to observe that the table contains four hundred and twelve offences, and that therefore, following the classification there adopted, the total number of indictable offences known to the law is five or six hundred. The arrangement of the table, is substantially that of the similar table in Oke's Magisterial Syno2)sis (14th Edition), and it has been adopted by the permission of Mr. Butterworth, to whom we are grateful for his courtesy. We have rewritten the Index. H. S. H. L. S. 4, Paper Buildings, Temple, 24:th Octobet; 1894. TABLE OF CASES CITED PAGE Abbott, R. I- 302 Abraham's Case 277 Addis, R. r 269 Adey's Case 186,419 Aickle's Case 327 Allen, R. r. (1835, 7 C. & P. 153} 170 , (1839, 9 C. & P. 31) 207 ,(1872, ICC. R. 367) 213 Allen and Others, R. r. . . 184, 189 408, 414 Almond, R. r 229, 230 Anderson, R. r 187, 188 Anderson v. Hamlin .... 224 Antrobus, B,. v. 91 Archer, R. r 23 Ardley, R. r 300 Armory i: Delamirie .... 246 Ashwell, R. r 261, 262 Aspinall, R. v. 306 Atkinson, R. i- 23 Att. -Gen. of Hongkong v. Kwok- a-Sing 78 V. Terry 141 Avery, R. i' 263, 264 B. Badger, R. r 89 Bailey, R. r 292 Barnard, R. r 298 Barnes v. Ward 149 Barratt, R. r 203, 209 Barrett's Case 185 Barrett, R. v 142 Barronet, Ex parte 27 ,R. r 166, 187 Barrow, R. i- 207 Barthelemy, R. /' 187 Bateman, R. r 325 Batty, R. V 273 Bazeley's Case 244, 277 Beatson v. Skene 232 Beaumont, R. v 275 Bembridge, R. v. ... 88, 90, 123 Bennett, R. ?• 170, I77 Berriman, R. v 194 Best, R. (• 122 Billingham, R. r. 166 Bishop, R. r 29 Biswell, R. f 217 Blaby, R. v. 14, 359 Blades v. Higgs 252, 257 Blenkinsop, R. v 325 Boardman, R. r 322 Bod en, R. v 255 Boult, R. r 350 Boulton, R. V 250 Bower, R. r 94 Bowers, R. v 274 Borron, R. r 88 Bradford, R. ?-. 375 Bradlaugh, R. r 133, 134 Bradlaiigh c. Xewdegate . . 112 Brain, R. r 175 Brett, Ex jtarte 382 Broddribb, R.v 55 Bromage v. Prosser 231 Brooks, R. ;• 23 Brown, R. v. (1841, Car. & M. 314) 95 , (1843, 1 C. & K. 144) 213 ,(1870, ICC. R. 244) 194 , (1883, 10 Q. B. D. 381) 194, 195 , (1889, 24 Q. B. D. 357) 41, 197 ^Brown and Webb, R. r. ... 213 r. Mallett 149 Bryan, R. i- 300 Bubb, R. r 172 Buckmaster, R. v 260 TABLE OF CASES CITED PAGE Buckners Case 186 Bullock, R. V 369 Bunce, R. r 260 Buncombe, R. r 23 Bunn, R. r 39 Burdett, R. ;• 71,229,230 Burdon, in re ex parte Wood . 380 Burgess, R. r. (1862, L. & C. 258) 190, 193 , (1863, L. & C. 299) 264 , (1885, 16 Q. B. D. 141) 122 Burgon, R. r 302 Burns V. Nowell 27 Burrell, R. r 215 Burt i;. Burt 211, 213 Burton, R. r 270 Byrne v. Booadle 170 Byron's (Lord) Case 186 Byron (Lord), R. r 187 C. Cabbage, R. ?• 254 Callahan, R. /• 273 Camplin, R. r 208 Capital and Counties Bank r. Henty 227, 229 Carlisle's Case 305 Carlisle, R. r 239 Carr v. Hood 234 Carr, R. i-. (1811, R. & R. 198) 273 , (1832, 8C. &R 163) 177 Cartwright v. Green . . . 244, 257, 262, 265, 425 Cary's Case 190 Case, R. t' 203 Castlehaven's (Loixl) Case . . 208 Castro, R. r 19 Chadwick, R. v. (1844, 2 M. & R. 545) 326 , (1847, 11 Q. B. 205) 212 Chambers, R. r 331 Chandler, R. r 220 Chapman, R. r 278 Chapman's Case 109 Cheafor, R. r 252 Cheeseman's Case 40 Child, R. V. ( 1 830, 4 C. & P. 442) 57 , (1871, 1 C. C. R. 307) 368 Chipchase's Case 277 Christian, R. r 311 Clark V. Molyneux 232 Clark V. Reg 153 Clarke's Case 253 Closs, R. ?; 307 Coggs V. Bernard 247 Collin's Case 41 Collins, R. V. (1839, 9 C. & P. 456) 71 , (1843, 2 M. & R. 4611 . 326 26 31, 166 . 393 I Commonwealth v. Holmes j Coney and Others, R. v. . I Connor v. Kent .... I Cooke, R. V. (1838, 8 C. & P. 582) 322 • , (1871, 1 C. C. R. 295) 245 Cooper, R. v. (1833, 5 C. & P. 535) 33 — , (1846, 8 Q. B. 533) 229 ■ -, (1874, 2 C. C. R. 123) 311 Coslet'sCase 246 Cox V. Lee 229 , R. r 207 Coxhead v. Richards .... 232 Cramp, R. r 198 Crawley, R. r 148 Crawshaw, R. r 146 Cruse, R. v 23, 32 Crutchley, R. r 24 Cuddey, R. c 187 Cullum, R. r 273, 276 Curgerwen, R. ?• 212 Curian r. Treleaven 393 Currv V. Walter 238 Cutler V. Dixon 237 D. Dale, R. r 95 Danger, R. r 297 Dant, R. V 173 Davenport, R. ?■ 259 Davie's Case 257 Davies, R. r 262 Davis, R. ?■ 419 Dawkins v. Lord Paulet . . . 238 r. Lord Rokebv . . 237 Dawson, R. r 78 Day, R. r 203 Deasy, R. r 43 De Banks, R. /• 262 TABLE OF CASES CITED PAGE De Berenger, K. r 80.") Dee, R. r 207 D'Eon, R. r 73 Delaval, R. r 1.S2, 137 Uelegal v. Higliley 239 Desmond and Others, R. r. 184, 418 Dibdin v. Bostock 234 Dicks, R. v. . . .' 23 Dixon V. Bell 168 , R. ;• 148 Dolan, R. r 319 Donellan's Case 177 Downes, R. ?• 220 Dring, R. i' 319 Duckworth, R. r. . 40, 192, 195, 203 Dudley and Stephens, 7'. r. . 25 Duffey's Case 33 Duffiehl, R. r 123 Dugdale, R. v 40, 41 Duncan t\ Thwaites .... 239 Dunn, R. t\ (1765, 1 Leach C. C. 59) 327 ■ ,(1848, 12Q.B. 1041) 18 Dykes, R. e' 23 E. Eagleton, R. r 40, 307 Eastall, R. v 259 Edwards, R. r 257 Eggington, R. r 257 Elliot's case (1777, 2 East P. C. 951) 327 , (1861, L. & C. 103) 132 Emmens r. Pottle 229 Enoch, R. r 175 Ensor, R. r 227 Errington's Case 183 Evans, R. v. (1812, 1 Russ. Cr. 651) 179 , (1859, Bell C. C. 192) 299 , (1862, L. & C. 755) 298 F. Eallon, R. V 37 Ealkingham, R. /■ 222 Fanning, R. v 213 Farrow, R. v 197 Featherstone, R. /■ 263 Fenton, R. ?• 185 PAGE Ferens r. O'Brien 250 Ferrall, R. v 96 Ferrer's (Sir H.) Case . 186, 410, 419 Firth, R. v 250 Fisher, R. r 186 Fitch. R. V. (1857, D. & B. 187) 264 , (1862, L. & C. 159) 331 Flattery, R. v 207 Fletcher, R. v. (1841, 1 Russ. Cr. 676) 179 — — (N.), R. r. (1859, Bell C. C. 63) 208 , (1862, L. & C. 180) 314 , (C), R. r. (1886, 1 C. C. R. 39) 209 Flowers, R. v 261 Foster, R. v 300 Foulkes, R. r 271 French, R. v 331 Fretwell, R. r 34, 190 Friend's Case 220 Fullagar, R. r 311 G. Gale, R. V 276 Gallagher, R. v 43 Gardner, R. r. (1856, D. & D. 205) 302 , (1862, L. & C. 243) 207 Garrett, R. r. (1853, D. & P. 232) 301 , (1860, 8 Cox, C. C. 368) 268 Gathercole, R. r 228, 229 Gaylor, R. r 191 Geach, R. v 322 Gibbon, R. v 108 Gibson r. Lawson 393 Giles, R. V 299 Glover, R. r 275 Clyde, R. V 266 Goodbody, R. v 273 Gordon, R. r. (1787, 22 St. Tr. 213) 73 ,(1889,23Q.B.D. 354) 300 Gotley, R. r 122 Gray, R. ?' 192 Grey (Lord), R. ^ 137 Green, R. r 170 Greenacre, R. r 191 Greenwood, R. r 180 TABLE OF GASES CITED PACiR Gregory, "R. v 3G, 39 Griffiths, R. r 325 Groombridge, R. '• -08 Grove, R. v -78 Guelder, R. r 278 Gurney's Case 107 H. Hadfield, R. v. (1803, 2 Russ. Cr. 640) 32G ,(1870, IC. C. R. 253) 375 Haines, R. v 179 Hale, R. v. (1828, 3 C. & R. 409) 27, 255 , (1871, 1 C. C. R. 282) 133 , (1875, Leeds As- sizes) 212 Hanson, R. r 147 Hardy, R. v 375 Harper, R. i- 331 Harring t'. Walrond .... 134 Harris, R. v. (1791, 4 T. R. 202) 95 , (1834, Moo. C. C. 393) 350 , (1871, 1 C. C. R. 282) 133 , (1893, 17 Cox C. C. 656) 274 Harrison v. Bush 231 Harrison's Case 263 Hart, R. v 325 Harvey v. Farnie 212 Harvey, R. c. (1823, 2 B. & C. 257) 71 , (1840, 9 C. & P. 353) 259 , (1871, 1 C.C.R. 285) 350 Hassell, R. i' 247, 268 Hastings, R. r 81 Haswell, R. r 119 Hawkeswood's Case .... 327 Hawkins, R. v 276 Haynes, R. v. (2 East P. C. 652) 252 ,(1815, 4 M. &.S. 214) 307 Hayward, R. /• 189 Hazleton, R. i' 299 PAGE Henderson ?•. Broomhead . . 237 Hennah, R. i- 198 Henwood v. Harrison .... 234 Hermann, R. i" 354 Hevey, R. v 305 Hibbert, R. v 217 Higgins, R. r 39 Hill, R. r 318 Hillman, R. r 199 Hoare v. Silverlock 238 Hoatson, R. v 322 Hodgkiss, R. r 109 Hodgson, R. v. (1730, 1 Leach 6) 33 , (1828, 3 C. & P. 422) 278 , (1856, D. & B. 3) 323 Hogan, R. t' 220 Hogg, R. r 13 Holbrook, R. V 230 Holland, R. r 179 HoUis, R. ?' 259 Hollowav, R. r 254, 255 Holmes,' R. r 132, 133 Hook, R. i^ 172 Hopkins, R. r 217 Hopley, R. r 162 Hudson, R. r 303 Huggett's Case . . . 186, 417, 419 Hughes, R. r. (1813, 2 Lew. 229) 23 , (1826, 2 C. & P. 420) 369 , (1832, Moo. C.C. 370) 273 , (1857, D. & B. 248) 170, 184 , (1860, Bell C.C. 242) 36 , (1879, 4Q.B.D. 614) . 107 Hughes's Case 258 Hunt, R. V. (1825, 1 Moo. C. C. 93) 199 , (1838, 8 C. & P. 642) 275 Hunter v. Shai-pe 232 I. Ingram's Case 104 Instan, R. r 172, 177 Ion, R. r 329 Isaacs, R. r 198, 199 TABLE OF CASES CITED J. PAGE Jackson, R. v. (1787, 1 T. R. 653) 89 , (1813, 3 Camp. 370) 299 , (1826, 1 Moo. 119) 260 James, R. r. (1831, o C. & P. 153) 56 , (1836, 7 C. & P. 553) 323 , (1850, 2 Den. 1) . 91 Jarvis, R. ii 148 Jefferys v. Boosey 124 Jenkins v. Cook 91 Jenkins v. Jones 112 Jenks V. Turpin 143 Jenner v. A'Beckett .... 234 Jennison, R. v 300 Jenson, R. v 273 Jessop, R. I' 299 Jones's Case (2 East P.C. 952) 327 Jones's Case ( 1 840, 2 Moo. 171) 95 Jones (Lloyd), R. v. .... 278 Jones (Valentine), R. v. . . . 90 Jones, R. v. (1812, 3 Camp. 230) 149 , (1846, 1 Den. 188) 254 , (1858, D. & B. 555) 292, 293 , (1870, 11 Cox C. C. 393) 81 , (1883, 11 Q. B. D. 118) 212 Jordin v. Crump 200 Joyce, R. ?' 332 K. Kay, R. v. (1857, D. & B. 231) 244 , (1870, 1 C. C. R. 29) 335 Kelly, R. r 30, 31 Kennedys. Lyell 112 Kennett, R. v 91 Kenrick, R. r 305 Keyn, R. r 72 Kilham, R. r 250, 302 King, R. 1.' 278 Kipps, R. 7- 217 Kirkham, R. c 189 L. Labouchere,^R. v 227 Lafrier's Case 247 Lake v. Kin^f 235 PAGE Lambert, R. y 278 and Perry, R. v. . . 71 Lancaster, R. i' 97 Latimer, R. v 199 Lawley (Lady), R. v 113 Leddington, R. v 39 Ledger, R. i^ 178 Lee's Case 299 Leggett, R. V 162 Leigh's Case 267 Levet's Case 28 Lewis V. Levy 238, 239 Lewis, R. V. (1840, 9 C. & P. 523) 192 , (1869, 11 Cox, C. C. 404) 305 Lister, R. v 148, 278 Lloyd Jones, R. v . . . . . 278 Lock, R. v 203 LoUey, R. ^ 212 Longbottom, R. y; ..... 178 Longsheitli, R. r 260 Lovell, R. ?; 257 Lows V. Telford 61 Lynch, R. v 1S8 Lynn, R. ?• i.ss M. Mabbett, R. ;■ 173 M'Athey, R. v 319 MacDaniel and Others, R. i\ . 181 Macdonald, R. r 262 McDonald's Case 273 McC4rath, B,. v • . 257 McGregor, R. r 81 ''■ Thwaites .... 239 McGrowther, R. v 24 Mackale, R. « 260 McKeevit, R. r. 393 MacNaghten's Case 28 McPherson, R. r 41 Mahoney, R. v 326 Mankletow, R. r. 217 Manley, R. v 31 Manning, R. v. (1852, D. & P. 345) 255 , (1871, 1 C. C. R. 338) 368 Marcus, R. r 322 Marriott, R. v 172 Martin, R. (1867, v. 1 C. C. R. 56) 298 TABLE OF CASES CITED PAGE Martin, R. (1879, 5 Q. B. D. 34) 327 • , (1881, 8 Q. B. 1). 54) 199 Mason's Case 188 Masters, R. r 245 Mawbev, R. ?• 107 Mawgridge, R. v. . 188,412,417 May, R. r 271 Mazagora, R. i' 322 Meadows, R. r 217 Mears, R. r 137 Merivale v. Carson .... 233, 234 Merry v. Green 244, 262 Mertens, R. r 71 Middleton, R. v. . . . 244,261, 262 Millar r. Taylor 123 Miller, R. >\ 318 Millis, R. r 214, 261 Mills, R. r 302 Mitchell, R. r 350 Moah, R. r. (1856, I). &. P. 626, 629) 278 , (1858, T>: & B. 550) 350 Mogul Steamship Company v. Macgi'egor 390 Monck V. Hilton 152 Monson v. Tussauds (Limited) 228 Moody, R. r 332 Moore, R. r 264 Morbv, R. r 171 Morfit, R. r 89, 255 Morgan, R. v 257 Morley's (Lord) Case .... 186 Morrison, R. v 250, 332 Moss, R. r 303 Most, R. ?■ 71, 194 Mount, R. r 3 Mucklow, R. r 262 Mulcahy r. R 39, 47 Mullany, R. r 108 Munster v. Lamb 237 Murphy, R. r 274 Murphy's Case 327 Murray, R. r 245, 277 Mutters, R. r 149, 263, 264 N. Nash, R. r 325 Naylor, R. r 304 Negus, R. r 271, 273 Nettleton, R. r 273 P.^GE Newman, R. v. (1853, 1 E. & B. 558) 231 , R. r. (1882, 8 Q. B. D. 706) 331 Norval, R. r 277 0. O'Connell r. R 70 Ogden, n. V 281 Okey, R. ?■ 89 Oldham, R. r 285 Omichund r. Barker .... 106 Oneby, R. v 189 Opie, R. r 123 Orchard, R. r 132 Osborne, R. ?• 228 Osmer, R. i-. .... 160, 186,418 Owen, R. r 20 Owens, R. r 369 Oxenham, R. r. 262 Oxford, R. V 22 P. Palmer, R. v 31 Parker, R. r. (1837, 2 Moo. 1) 299 , (1839, 9 C. & P. 45) 364 Parkes, R. ?' 326 Payne, R. v 118 Pease, R. r 141 Peltier, R. r 73 Penson, R. r 213 Perkins, R. ?■ 166 Perry, R. v. (1794, R. & M. 354) 216 , (1855, D. & P. 471) 194 Peters, R. v. (1843, 1 C. & K. 245) 266 , (1886, 16 Q. B. D. 636) 383 Phelps, R.r 96, 418 Phetheon, R. r 268 Phillimore i\ Machon . . . 126, 132 Phillips V. Eyre 157 Phillips, R. V. (1801, 2 East P. C. 662) 269 , (1805, 6 East 464) 64 , (1839, 8 C. & P. 736) 208 Philpott, R. V 220 Philpott's Case 108 Pierson, R. v 142 Pinckney's Case 307 TABLE OF CASES CITED PAGE Pinney, R. w 91, 158 Pitman, R. /• 246 Plummer's Case 32 Pocock, R. V 177 Pointon v. Hill 151 Poole, R. r 255 Pooley, R. v 125 Portugal, R. r 310 Poulton, R. r 1 75 Poynton, R. y 240 Pratt, R. 7- 244, 267 Preston's Case 266, 267 Price, R. v. (1837, 8 C. & P. 19) 23 , (1884, 12 Q. B. D. 247) 138 Prince, R. v. . . .28, 29, 217, 260 Probert, R. t' 147 Procter v. Webster 232 Pym, R. /• 179 R. Ramsey, R. v 126 Randall, R. r 149 Ransford, R. r 40 Rea, R. /• 213 Read, R. r 208 Redford i\ Birley 55 Redman, R. r 280 Reed, R. r. (1842, Car. & M. 306) 27 , (1854, D. & P. 168, 257) 244, 431 Ren wick Williams' Case . . ; 19 Rice and Wilton, R. v. . . . 142 Richards, K. v 254 Rigmaiden's Case 170 Riley, R. r 267 Ring, R. r. (1800, S T. R. 585) 123 , (1892, 61 L. J. M. C. 116) 41, 197 Ritson, R. (• 325 Rivaldi, R. r 342 Roberts, R. r 283 Robertson, R. v. (1864, L. & C. 483) 281 , (1865, L. & C. 604) 359 Roberts's Case 40, 4 1 Robins, R. r. (1844, 1 C. & K. 456) 217 , (1854, Dear. 418) 245 Robinson, B. v 298, 320 PAGE Robinson's Case 259 Robson, R. v. (1861, L. & (!. 93) 247 , (1885, 16 Q. B. 1). 140) 263 Rosinski, R. /• 203 Rouverard, R. r 132 Rowe, R. r 257, 265 Rowlands, R. r 123 Rowley's Case 184 Russell, R. V. (1805, 6 East 427) 149 — , (1827, 6 B. & C. 566) 140 , (1832, 1 Moo. 356) 34, 190 , (1854, 3 E. & B. 942) 149 , (1842, Car. & M. 541) 364 Russett, R. r. 260 Rust, n. V 283 Ryalls V. Leader 238 Ryland, R. v 220 Rymer, R. r 146 S. Sadi, R. V 320 St. George, R. r 192, 203 St. John Long, R. r. . . . 170, 174 Salmon, R. v 33, 174 Sandoval, R. r 74 Santos i\ Illidge 84 Saunders' Case 35, 177 Saunders, R. r 133^ Schlesinger, R. v 108 Schmidt, R. v 319 Scholield, R. 7' 39 Scott, R. V 138 Scroggs, C.J., R. V 88 Seaman i\ Netherclift .... 237 Searing, R. ?' 251 Self, R.V 181 Seller, R. v 175 Sells r. Hoare 107 Sharman, R. v 350 Sharpe, R. v 138 Shepherd, R. /■. (1856, L). & 1'. 606) 288 , (1862, L. & C. 147) 172 , (1868, 1 C. U. R. 118) 293 TABLE OF CASES CITED Sheppard's Case 326 Sherlock, R. r 95 Sherwood, R. t" 186 Shickle, R. r 252 Simon's Case Simpson, R. r Sissinghurst Hoiise Case . . Skeen, R. r Smith (Charlotte), R. v. . . , (John), R. r 244 — , (L.), R- r 195 , (V.), R. I- 318 , (W.), R. r 186 , R. V. (1826, 2 C. & P. 258 247 32 316 172 449) (1855, D. & P. 494) (1858, D. & B. 553) 171 318 23, 328 332 320 31 , (1862, L. & C. 168) , (1870, 1 C. C. R. 266) Soares, R. r Solev, R. r 56 Solomons, R. r 260 Southerton, R. r 122 Spencer, R. f 273 Spier V. Read 109 Squire, R. r 181 Stainer, R. r 274 Stallion, R. r 364 Stannard, R. r 142 Stedman's Case 186 Steele v. Brannan 134 Stephenson, R. v 138 Stevens r. Sampson . . . 235, 238 Stevenson, R. r 186 Stewart, R. r 138 Stockdale r. Hansard .... 235 Stokes, R. r 22 Stratton and Others, R. r. . . 26 Stuart, R. r 273 Swindall, R. v 1T9 Thomas, R. v. (1837, 7 C. & P. 817) 189 , (1863, L. & C. 313) 308 Thompson, R. r 263 , (G.), R. r 244 , (H.), R. f 245 V. Farrer 29 V. Shaken .... 234 Thorpe, R. v 271, 275 Thurborn, R. r 265 Timmins, R. ?• 217 Tite, R. r 271 Todd V. Hawkins 232 , R. r 322 Tolfree, R. r 263 ToUett, R. V 263 Tolson, R. r 28, 211, 213 Tomlinson, R. r 108 Tooley's Case . . 186, 417, 419, 422 Topham, R. v 227 Topping, R. r 211 Torpey, R. r 23 Toshack, R. r 350 Towers, R. i? 180 Townlev, R. t- 252, 256, 258 Train, R. r 140 Trainer, R. r 163 Tranter, R. r 161 Trebilcock, R. r 268 Trilloe, R. r 175 Triquet and Others v. Bath . 72 Tuff^s Case 323 Tyree, R. v 274 Tyson, R. r 108 U. United Kingdom Telegraph Co. , R. '/• 140 Usill V. Hales 238 V. Tabart v. Tipper 234 Tankard, R. v 274 Tatlock, R. r 311 Taylor, R. r. (1859, 1 F. & F.) 41 , (1875, 2 C. C. R. 147) ^^' ^;^I Thallmann's Case 133 Thomas, R. r. (1815, 4 M. & S. 442) 163 Van Butehell, R. r 170 Vann, R. r 138 Yantandillo, R. r 147 Vaughan, R. c 97 ^^illars V. Mousley 229 Vincent, R. v. (1839, 9 C. & P. 91) 55, 71 , (1852, 2 Den. 464) 245 Vint, R. r 73 Vreones, R. r 124 TABLE OF CASES CITED W. PAGE Wager, R. r 179 Waite, R. ('. 209 Wakefield, R. r 21 G W^alker, R. r 274 Walker's Case 271, 27-4 Walsh, R. r 246 Walsh's Case 267 Walters, R. r. (1G88, 12 St. Tr. 114) 186, 187 , (1841, C. & M. 164) 184 Walton, R. r 281 Warbiirtoii, R. /■ 305 Ward, R. y 3.50 Wardroper, R. r 23 Warner, R. v 419 Wason V. Walter 235 Watson, R. v. (1705, 2 Ld. Raym. 856) 147 , (1857, D. & B. 348) 302 Watts, R. r. (1798, 2 Esp. 675) 149 — ■ , V. (1850, 2 Den. 19) 277 , (1854, D. & P. 326) 250 Webb, R. V. (1848, 1 Den. 338) 132 , (1835, 1 Moo. 431) 254, 255, 308 Webster, R. r 137, 264 Welch, R. r 274 Welham, R. r 39, 399 Wellard, R. r 133 West, R. V. (1854, D. & P. 402) 266 , (1858, D. & B. 575) 300 Whitchurch, R. ?- 39, 197 White V. Crisp 149 White, R. V. (1853, D. & P. 203) 247, 250 , (1871, 1 C. C. R. 311) 222 Whiteman, R. r 372 PAGE Wild's Case 162 Wiley, R. v 318 Wilkes's Case 19 Wilkins, R. v ]!J9 W^ilkinson, R. r 264 Willes V. Bridger 397 Williams v. Stott 274 Williams, R. v. (1762, 3 Biur. 1317) 89 , (1838, 8 C. & P. 286) 203 — , (1893, IQ.B. 320) 209 Williams's Case 399 Williamson, R. r 170 Wilson, R. V. (1839, 9 C. & P. 27) 276 , (1847, 1 Den. 284) 322 , (1856, D. & B. 127) 197 Windsor, R. i- 261 Winnall, R. r 278 Withers, R. r 186 Woodward, R. v 319 ^Voolley's Case 299 Wright, R. V. (1758, 1 Burr. 543) 95 , (1841, 9 C. & P. 754) 175 ,(1858, D.&B. 431) 277 Wyat, R. r 88, 90 Wyatt, R. r 191 Wynn's Case 254 Y. Young, R. (• 306 Z. Zuletta, R. c 84 TABLE OF STATUTES CITED Magna Charta . 3 Edw. 1, c. 9 . 3 Edw. 1, c. 25 13 Edw. 1, c. 4 13 Edw. 1, c. 49 , 28 Edw. 1, c. 11 33 Edw. 1 . . 1 Edw. 2, St. 2 1 Edw. 3, St. 2, c, 2 Edw. 3, c. 3 . 4 Edw. 3, c. 11 25 Edw. 3, St. 5, 25 Edw. 3, St. 15 27 Edw. 3, c. 40 I Ric. 2, c. 4 . 5 Ric. 2, St. 1, c. 15 Ric. 2,0. 2 . 5 Hen. 4, c. 5 . 8 Hen. 6, c. 9 . II Hen. 7, c. 1 . 23 Hen. 8, c. 1, s 24 Hen. 8, c. 12 28 Hen. 8, c. 15, 32 Hen. 8, c. 9 ' 33 Hen. 8, c. 9 1 Edw. 6, c. 1 . , s. 2 & 3 Edw. 6, 0. 5 & 6 Edw. 6, c. , c . 3 s. 2 s. 3 1 . 1 . IG 1 Eliz. c. 2, s. 2 . . 1 Eliz. c. 2, s. 3 . . 13 Eliz. c. 2 . . . . 18 Eliz. c. 5, s. 4 (red 31 Eliz. c. 11 1 Ja. 1,0. 12 21 Ja. 1,0. 15 13 Car. 2, c. 1 13 Car. 2, c. 5 Car. 2, c. 4, s. 20 PAGE 10 122 . 112 . 132 112, 401 . 401 . 112 . 119 112, 401 54 . 112 43, 44, 45 44 . 396 112, 401 61 61 . 413 61 44 . 408 . 128 78 112, 401 . 402 91 . 128 . 129 . 103 . 104 . 129 . 128 45, 46 112, 122 122 61 180 61 128 62 128, 129 29 Car. 2, c. 9 . . . . 30 Car. 2, st. 2, c. 1 . 31 Car. 2, c. 2, s. 11 . 1 W. & M. c. 1 ... 1 W. & M. sess. 2, 0. 2 I W. & M. c. 18, s. 15 9 Will. 3, c. 35 . . . 9 & 10 Will. 3, c. 77 . 10 Will. 3, 0. 23 . . . II & 12 Will. 3, c. 7, s. 5 Anne, c. 14, s. 4 7 Anne, c. 12, s. 3 , s. 4 , s. 6 1 Geo. 1, St. 2, c. 5 s. 1 ss. 1, s. 2 s. 3 8 Geo. 1, c. 24, s. 1 , s. 6 12 Geo. 1, c. 29, s. 4 2 Geo. 2, c. 25, s. 2 . 7 & 8 Geo. 2, c. 28, ss, 9 Geo. 2, c. 5, s. 4 . 12 Geo. 2, c. 28 . . 13 Geo. 2, c. 19 . . 16 Geo. 2,0. 21, s. 3 18 Geo. 2, c. 30 . . 18 Geo. 2, c. 34 . . 25 Geo. 2, o. 36 . . , s. 2 , 8. 4 , s. 8 25 Geo. 2, o. 37, ss. 4, , s. 9 12 Geo. 3, c. 11 . . 12 Geo. 3, 0. 24 . . 21 Geo. 3, c. 49, s. 1 PAGE 126 130 89 130 10 preamble 8 130 126 177 403 79 80 33 27 72 72 72 158 56 57 56 56 . 80, 81 81, 158 112 109 337 306 403 403 118 79 403 145 145 145 142 191 117 52 362 145 b 2 TABLE OF STATUTES CITED PAGE 21 (leo. 3, c. 49, s. 2 . . . . 142 28 Geo. 3, c. 55 379 30 Geo. 3, c. 48 46 33 Geo. 3, c. 67 60 36 Geo. 3, c. 7, s. 1 .... 42, 43 , s. 4 . . . . 43 , s. 6 . . . . 42 37 Geo. 3, c. 70, s. 1 . . . . 47 37 Geo. 3, c. 123 275 . , ss. 1, 5 . . 64 , s. 2 . . . . 65 39 Geo. 3, c. 37, s. 1 . . . . 78 39 Geo. 3, c. 79 66 39 Geo. 3, c. 79, preamble, and ss. 1, 2, 3 66 39 Geo. 3, c. 79, s. 5 . . . . 67 , s. 6 . . . . 68 , ss. 8, 9 . . 68 , s. 13 . . . 68 39 Geo. 3, c. 85 278 42 Geo. 3, c. 119, s. 2 . . . . 146 49 Geo. 3, c. 126 103 , s. 1 . . . . 103 , s. 2 . . . . 104 , s. 3 (cond.) , 104 , s. 4 . . . . 104 , s. 5 . . . . 105 52 Geo. 3, c. 104 275 , ss. 1, 6 . . 64 , s. 2 . . . . 65 52 Geo. 3, c. 143, s. 6 . . . . 334 52 Geo. 3, c. 155, s. 12 . . . 130 52 Geo. 3, c. 156 117 , ss. 1, 2, 3 . 117 53 Geo. 3, c. 127, s. 1 . . 126, 132 , s. 2 . . 126, 132 , s. 3 . . . 126, 132 53 Geo. 3, c. 160 127 54 Geo. 3, c. 146 46 56 Geo. 3, c. 138, s. 2 ... 122 57 Geo. 3, c. 6 42 57 (xeo. 3, c. 19, s. 23 . . . 61 , s. 25 . . . 66, 68 , ss. 26, 27 . 67 , s. 28 . . . 68 60 Geo. 3 & 1 Geo. 4, c. 1, s. 1 63 60 Geo. 3 & 1 Geo. 4, c. 8 . . 70 1 Geo. 4, c. 90, s. 1 78 1 & 2 Geo. 4, c. 88, s. 1 . . . 117 3 Geo. 4, c. 114 56, 109 , s. 1 . . . . 141 4 Geo. 4, c. 48 362 , s. 1 13 , s. 2 13 4 Geo. 4, c. 76, s. 21 . . . . 213 5 Geo. 4, c. 83, s. 3 . , se. 3, 4, , s. 4 . . , s. 5 . . 5 Geo. 4, c. 84 . . . . , s. 22 . 5 Geo. 4, c. 113, s. 2 . , s. 9 . , s. 10 , s. 11 6 Geo. 4, c. 50, s. 61 . 6 Geo. 4, e. 78, s. 25 . 6 Geo. 4, c. 92 ... 6 Geo. 4, c. 105, s. 10 7 Geo. 4, c. 16, s. 38 . 7 & 8 Geo. 4, c. 18 . . 7 & 8 Geo. 4, c. 28 . . , s. 7 , s. 8 , s. 9 , s. 10 , s. 11 , s. 12 7 & 8 Geo. 4, c. 29 7 & 8 Geo. 4, c. 30 . 44 s. 19 9 Geo. 4, c. 31, s. 14 9 Geo. 4, c. 55 9 Geo. 4, c. 56 9 Geo. 4, c. 69 s. 18 , s. 9 . . . , s. 12 . . , s. 13 . . 10 Geo. 4, c. 7, ss. 28, 29 , s. 31 . . , s. 33 . . , s. 34 . . , s. 35 . . . , s. 36 . . , s. 37 . . 1 1 Geo. 4 & 1 Will. 4, c. 1 1 Will. 4, c. 66, s. 1 . . 1 & 2 Will. 4, c. 37, s. 9 1 & 2 Will. 4, c. 41, s. 11 2 Will. 4, c. 53, s. 49 . . 2 & 3 Will. 4, c. 59, s. 19 4 & 5 Will. 4, c. 67 . . 5 & 6 Will. 4, c. 62, s. 21 6 & 7 Will. 4, c. 30 . . , s. 40 . . TABLE OF STATUTES CITED & 7 Will. 4, c. 85, s. 7 \ s. 40 , s. 41 7 Will. 4 & 1 Vict. c. 15, 7 Will. 4 & 1 Vict. 0. 22 7 Will. 4 & 1 Vict. c. 23 7 Will. 4 & 1 Vict. c. 36, s. 26 288, 1. 28 1. 29 .. 30 . 31 . 36 ;. 41 288, •• 42 288, 291, 295, s. 43 , s. 47 288, 291, 7 Will. 4 & 1 Vict. c. 85, s. 1 7 Will. 4 & 1 Vict. c. 88, s. 2 , s. 3 . 7 Will. 4 & 1 Vict. c. 91 . .64, 1 Vict. c. 81, s. 1 1 Vict. c. 90, s. 5 1 Vict. c. 91 . . 1 & 2 Vict. c. 38, s. 2 , ss 2,3 1 & 2 Vict. c. 82, s. 12 1 & 2 Vict. c. 105 . . 2 & 3 Vict. c. 93, s. 8 3 & 4 Vict. c. 9, s. 1 . , s. 3 . 3 & 4 Vict. c. 97, s. 13 5 & 6 Vict. c. 29, s. 24 5 & 6 Vict. c. 39, s. 6 . 5 & 6 Vict. 5 & 6 Vict. 5 & 6 Vict. 6 & 7 Vict. & 7 Vict. 7 & 8 Vict. c. 7 & 8 Vict. c. 7 & 8 Vict. c. 8 & 9 Vict. c. 8 & 9 Vict. c. 8 & 9 Vict. c. 45, s. 12 51, ss. 1, 2 55, s. 17 26, s. 22 96, s. 3 . — , s. 4 . s. 6 22, s. 2 29, s. 1 101, s. 8 100, s. 44 106 . . 109 . . Ill, 135, 144. p.^GE 214 214 214 215 192 214 109 291 288 288 291 320 294 296 291 296 294 294 400 79 81 117 57 47 83 13 362 152 120 106 205 235 235 201 120 316 338 51 201 120 239 239 239 231 230 329 60 223 29 112 403 8 & 9 Vict. c. 109, , s. 17 8 & 9 Vict. c. 113 . . 8 & 9 Vict. c. 113, s. 4 9 & 10 Vict. c. 59 45, 46 PAGE 144 303 110 110,329 s. 4 10 cfe 11 Vict. c. 58 10 & 11 Vict. c. 82 11 Vict. c. 12, pi'eamble, &c., s. 3 130 214 286 47 42 s. 4 11 & 12 Vict. c. 42 217 11 & 12 Vict. c. 42, ss. 2, 11, 12, 22 . 415 (Q. 1) . 416 11 & 12 Vict. c. 59 286 11 & 12 Vict. c. 78 . 11 & 12 Vict. c. 78, s. 12 & 13 Vict. c. 103, s 13 & 14 Vict. c. 26 . . . 13 & 14 Vict. c. 101, s. 9 14 & 15 Vict. c. 19, s. 11 . s. 12 . 15 420 329 273 78 205 204 204 14 & 15 Vict. c. 92 286 14 & 15 Vict. c. 99 . . . . 110, 111 14 & 15 Vict. c. 99, s. 15 . . Ill , s. 16 . . 106 14 & 15 Vict. c. ICO, s. 29, 113, 116, 119, 132, 133, 305 15 & 16 Vict. c. 56, s. 15 . . 87 , s. 16 . . 87 16 &: 17 Vict. c. 99 1, 13 , s. 12 . . 14 16 & 17 Vict. c. 119, preamble, and ss. 1, 2 17 & 18 Vict. c. 36 17 & IS Vict. c. 38, s. 2 . . . 17 & 18 Vict. c. 102, s. 2 100 3 17 & 18 Vict. c. 138, s. 4 18 & 19 Vict. c. 63 . . . 18 & 19 Vict. c. 63, s. 18 , s. 22 19 & 20 Vict. c. 119, s. 9 20 & 21 Vict. c. 3 ... s_ 2 20 & 21 Vict. c. 83, s. 1 . 21 & 22 Vict. c. 90, s. 38 21 & 22 Vict. c. 90, s. 40 22 & 23 Vict. c. 35, s. 24 23 & 24 Vict. c. 38, s. 8 . 24 & 25 Vict. c. 94, s. 1 . 114 109 144 101, 102 101, 102 102 143 274 274 274 215 1, 13 14 133 87 323 304 304 282 TABLE OF STATUTES CITED 24 & 25 Vict. c. 94, ss. 3, 24 & 25 Vict. c. 95 . . 24 & 25 Vict. c. 96 . . -. s. 1 s. ^ s. 3 s. 4 s. 7 s. 8 s. 9 s. 10 s. 11 s. 12 s. 13 s. 16 s. 17 s. 18 s. 19 s. 21 s. 23 s. 24 s. 25 s. 26 s. 27 s. 28 s. 29 s. 30 s. 31 s. 32 s. 33 s. 36 s. 38 s. 39 s. 40 s. 42 s. 43 s. 44 s. 45 s. 46 s. 47 s. 48 s. 49 s. 50 s. 51 s. 52 s. 53 s. 54 s. 55 s. 56 s. 57 s. 58 PAGE 37 . 13,14 . 294 282, 287 291, 376 . 376 . 262 . 286 14, 286 286, 294 . 286 . 289 286, 289 . 377 376, 377 . 377 376,378 251,295 . 295 . 251 . 251 376, 377 . 377 293, 294, 295 . . 287 . . 292 . . 288 . . 292 . 292, 294 . 293, 294 . . 286 293, 294 . . 286 293, 294 . . 294 . 255, 308 . 279, 289 . . 279 . . 279 . . 280 . . 281 280 . . 280 . . 280 . . 281 . 280, 283 . . 284 . . 283 . . 282 . . 284 . . 284 . . 284 . . 284 . . 285 24 & 25 Viet. c. 96 24 & 25 Vict. c. 9 s. 59 s. 60 s. 61 s. 62 s. 63 s. 64 s. 67 s. 68 s. 69 s. 70 s. 73 s. 74 s. 75 ss. 75, s. 76 s. 77 s. 78 s. 79 80 81 82 83 84 85 88 89 90 91 95 1. 98 101 117 119 s. 1 s. 2 s. 3 s. 4 s. 5 s. 6 9 10 11 12 13 14 15 16 17 18 PAGE 285 290 290 290 290 290 290 .271,278, 290 . . 291 . . 291 . . 289 . . 291 .267,310, 311 79. 267 311 312 311,312 267,311, 312 314 315 315 315 315 316 297 301 297 320 320 37 320 14, 18 9 364 364 364 365 365 365 367 368 368 365 368 57 58 373 365 370 368 36 37 ir 294 TABLE OF STATUTES CITED •24 & 25 Vict. c. 97, s 24 & 25 Vict. c. 98 19 20 21 22 23 26 27 28 29 30 31 32 33 34 35 36 37 39 40 42 43 44 45 46 47 48 49 50 51 54 3. 56 73 75 1 0, -73 PAGE 369 372 372 374 374 365 368 370 371 366 371 371 366 374 366 375 374 375 369 365, 367 365, 367 368 368 372 367 372 369 80, 369 375 373 37 14, 18 9 334 330 330, 333 24 & 25 Vict. c. 98 3 . 351 4 . 337 6 . 337 7 . 330 8 . 331 9 . 343 10 .3 43, 344 11 . 344 12 .3 22, 331 13 . 340 14 . 340 15 . 340 16 . . 341 17 . 341 18 . . 342 19 . . 342 20 . . 331 21 . . 331 22 . 331 24 & 25 Vict. c. 99 24 & 25 Vict. c. 100 s. 23 s. 24 s. 25 s. 26 s. 27 s. 28 s. 29 s. 30 s. 31 s. 32 s. 33 s. 34 s. 35 s. 36 s. 37 s. 38 s. 45 s. 48 ss. 49- s. 51 s. r s. 2 s. 3 s. 4 51 s. 6 8 9 10 11 12 13 14 15 16 18 19 20 21 22 24 25 30 s. 35 ss. 35 s. 38 s. 3 s. 4 s. 5 s. 11 s. 12 s. 13 PAGE 331 335 .331 . 334 336 336, 337 337 332 334 338 . 334 . 352 . 337 332 333 . 335 . 329 . 333 37 14, 18 354, 361 354 355 355 356 357 355 355 358 358 358 358 359 359 357 359 359 357 357 359 360 358 355 356 355, 357 359 . .361 37 14, 18 191 193, 194 . 192 192, 400 192, 193 192, 193 38 TABLE OF STATUTES CITED •24&2oVict. c. 100, s. 14 . 15 24 & 25 Vict. c. 109, s. 4 25 Vict. c. 18, s. 1 . . , s. 2 25 & 26 Vict. c. 53, ss. 105, 25 & 26 Vict. c. 67, ss. 44, 25 & 26 Vict. c. 89, s. 166 25 & 26 Vict. c. 103, s. 40 26 & 27 Vict. c. 44, s. 1 26 & 27 Vict, c 73, s. 14 26 & 27 Vict. c. 87, s. 9 20 & 27 Vict. c. 89, s. 4 138 45 373 193 37 9 14 372 8 8 304 304 315 338 9,279 351 315 0.7Q 26 & 27 Vict. c. 103, s. 1 27 & 28 Vict. c. 27, s. 12 27 & 28 Vict. c. 47, s. 2 28 & 29 Vict. c. 121, s. 3 28 & 29 Vict. 0. 124, s. 8 28 & 29 Vict. c. 126 . . . • , s. 4 PAGE 307 s. 6 s. 17 s. 19 s. 37 Sch. I. 6 Sch. I. 16 Sch. I. 31 Sch. I. 34 1,3, 14, 338 . 372 351, 352 4 118 4 4 4 118 3 redl■a^^■n — , Sch. I. 35 , Sch. I. 38 , s. 17 . , s. 67 . 29 & 30 Vict. c. 108, s. 15 . 29 & 30 Vict. c. 117 . . . , s. 14 . 30 & 31 Vict. c. 102, s. 49 30 & 31 Vict. c. 131, s. 35 . 31 Vict. c. 24 . . . , ss. 2, 16 31 & 32 Vict. c. 37, 31 & 32 Vict. c. 116 s. 4 , s. 1 31 & 32 Vict. c. 119, s. 5 31 & 32 Vict. c. 121, s. 14 32&33 Vict. c. 62, s. 11 , s. 12 , s. 13 , s. 14 32 & 33 Vict. c. 73, s. 20 33 & 34 Vict. c. 23 . . . s. 8 ss. 9-29 inc. s. 31 33 & 34 Vict. 33 & 34 Vict. 33 & 34 Vict. c. 71 33 & 34 Vict. c. 90 53, s. 4 58, s. 3 — , s. 6 s. 4 s. 6 6 18 315 / 16 101 351 46, 191 46,79 . 329 . 320 263, 264 272 315 87 379 379 304 383 92 3,401 12 11 11 13 12 12 46 351 331, 333 329, 331 331, 333 73 74 74 77 TABLE OF STATUTES CITED 33 & 34 Vict. c. 90, s. 7 s. 8 s. 9 s. 10 s. 11 s. 15 33 & 34 Vict. c. 93 . 34 & 35 Vict. c. 31, .s. 34 & 35 Vict. c. 32 . , s, 34 & 35 Vict. c. 78, s. 34 & 35 Vict. c. 108 1 10 34 & 35 Vict. c. 112, .s. 7 , s. 8 , s. 12 , s. 15 , s. 20 35 & 36 Vict. c. 19, s. 2 , ss. 9, 1 35 & 36 Vict. c. 33, s. 3 , s. 24 3 13 36 & 37 Vict. c. 38, s 36 & 37 Vict. c. 71, s 36 & 37 Vict. c. 91 . . 37 & 38 Vict. c. 35 . . 37 & 38 Vict. c. 36, s. 1 38 Vict. c. 17, s. 81 . 38 Vict. c. 22, s. 10 . 38 & 39 Vict. 0. 24, s. 1 38 & 39 Vict. c. 25, s. 4 , s. 5 38 & 39 Vict. c. 51 . . 38 & 39 Vict. c. 63, ss. 3 38 & 39 Vict. c. 86 . . . — , s. 3 -, s. 4 , s. 5 , s. 6 87, s. 38 & 39 Vict, 38 & 39 Vict. c. 98, 39 & 40 Vict. c. 36 9 101 117 s. 188 . s. 189 . s. 193 . 40 Vict. c. 2, s. 10 . . . 40 & 41 Vict. c. 21, s. 5 . 41 & 42 Vict. c. 33, s. 34 42 & 43 Vict. c. 54, s. 1 . 42 & 43 Vict. c. 55, s. 2 42 & 43 Vict. c. 21, s. 10 PAGE 74 74 77 76 74 73 247 391 205 392 315 152 152 154 15 8, 15 205 154 7, 15 85 85 03, 339 352 153 372 127 214 351 329 295 316 90, 278 51 308 85 147 393 391 392 391, 392 392 392 393 304 147 104 58 58,59 195, 196 331,343 5 87 14 3, 7 58,59 59, 43 & 44 Vict. c. 9 ... 43 & 44 Vict. c. 45, s. 2 . 20 45 & 46 Vict. c. 56, s. 22 , s. 23 44 & 45 Vict. c.'58, s. 1 1 1 , s. 155 45 & 46 Vict. c. 37, s. 12 45 & 46 Vict. c. 50, s. 78 , s. 117 , s. 124 45 & 46 Vict. c. 75 . . , s. 12 , s. 16 46 Vict. c. 3, ss. 2-6, 9 . 46 Vict. c. 3 46 & 47 Vict. c. 45, s. 2 , s. 3 46 &47 Vict. c. 51, s. 1 ■—, s. 2 , s. 6 , Sch. Ill 46 & 47 Vict. c. 52, s. 31 , s. 149 , s. 163 47 & 48 Vict. c. 76, s 3 4 . , s. 11 , s. 19 , s. 20 48 & 49 Vict. c. 69, s. 2 , s. 3 , s. 4 , s. 5 , s. 6 , s. 7 , s. 8 ^, s. 11 , s. 13 48 & 49 Vict. c. 75, s. 2 49 Vict. c. 14, s. 2 . . 50 & 51 Vict. c. 25 . . 50 & 51 Vict. c. 28, s. 2 s. 3 s. 4 s. 6 s. 7 s. 8 s. 11 s. 18 PAGE . 282 ,204,205 . 373 250, 294 92 92 87 . 102 . 312 . 312 23 248, 263 248, 263 . 363 . 198 . 360 . 354 . 102 . 101 102, 352 352 . 383 . 380 379,380, 381, 382 . 150 135, 150 92, 339 . 295 . 295 . 135 . 135 207, 209, 210 209 136 218 218 131 142 205 214 17 346, 347, 348 344, 345 346 346 347 345 345 348 345 50 & 51 Vict. c. 46, ss. 1, 2, 11, 13 394 TABLE OF STATUTES CITED 50 & 51 Vict. 50 & 51 Vict. c. 57 . c. 55, s. 50 & 51 Vict. 50 & 51 Vict. c. 58, s. c. 71, s. , s. 51 & 52 Vict. 51 & 52 Vict. 51 & 52 Vict. c. 43, s. c. 46 . c. 64, s. , s. 52 Vict. c. 10 52 & 53 Vict, 52 & 53 Vict. 52 & 53 Vict. s. 8 . s. 11 . c. 10, s. c. 49, s. c. 52, s. , s. 29 . 39 32 8 10 11 180 3 4 . 8 . 52 & 53 Vict. 52 & 53 Vict. c. 63, s. c. 69, s. , s. , s. 53 Vict. c. 5, s. 7 . , s. 40 , s. 197 , s. 215 , s. 222 , s. 231 , s. 233 , s. 237 , s. 315 , s. 316 , s. 317 , s. 318 , s. 319 , s. 321 , s. 322 , s. 324 , s. 325 53 & 54 Vict. c. 21, s. 53 & 54 Vict. 53 & 54 Vict. 53 & 54 Vict. c. 45, s. c. 59, s. c. 71, s. 7 14 9 28 3 PAGE . 380 93, 116 122 329 93 93 93 337 106 235 236 237 110 10, 338 338 106 106 48 49, 50 lOG 98 98 98 226 226 226 226 226 226 226 226 224 224 224 225 225 225 225 225 224 93 94 11,351 147 380 53 & 54 Vict. c. 71, 54 & 55 Vict. c. 38 54 & 55 Vict. c. 46, , s. 54 & 55 Vict. c. 69, 55 & 56 Vict. c. 19 55 & 56 Vict. c. 65, 56 & 57 Vict. c. 54 57 & 58 Vict. c. 41, 57 & 58 Vict. c. 60, PAGE s. 26 . 382 348 s. 13 . 335 348 s. 14 . 349 s. 15 . 350 s. 18 . 349 s. 10 . 295 12 . 295 s. 1 1,3 338 s. S 8 47 s. 1 114 s. 3 113 s. 4 113 s. 5 114 6 s. 1 220 221 ss. 6, 7 , 8 220 s. 16 384 s. 66 387 s. 67 387 s. 70 384 s. 104 388 s. 121 388 s. 147 389 s. 180 387 s. 187 384 s. 188 385 s. 197 388 s. 241 389 s. 248 389 s. 282 388. s. 398 390 s. 419 384 s. 422 385 s. 457 . 3 85 ,386 s. 535 390 s. 564 388 s. 607 386 s. 667 390- s. 680 . 3 83 -389 s. 695 388 s. 696 384 s. 722 38& LIST OF ABBREVIATIONS (OMITTING REFERENCES TO THE LAW REPORTS A. & E. . B. & A. . B. & Ad. . B. & B. . B. & C. . B. & P. . Bell, C. C. Brooke's Abt. Burr. Cald. Camp. Car. & Mar. C. & K. . CI. & F. . C. L. C. . Co. Cox, C. C. C. & P. . D. & B. . D. & P. . Den. Doiig. Ea. . East, P. C. E. & B. . E. B. & E. Esp. F. & F. . Foster (ien. View Cr. L Hale, P. C. Hawk. P. C. Hist. Cr. Law Adolphus & Ellis. Barnewall & Alderson. Barnewall & Adolphus. Broderip & Bingham. Barnewall & Cresswell. Bosanquet & Puller. Bell's Crown Cases. Brooke's Abridgment. Burrow's Reports. Caldecott's Settlement Cases. Campbell's Reports. Carrington & Marshman. Carrington & Kirwan. Clark & Finnelly. Criminal Law Commission. Coke's Report. Cox's Criminal Cases. Carrington & Payne. Dearsly & Bell. Dearsly & Pearce. Dennison's Crown Cases. Douglas. East's Reports. East's Pleas of the Crown Ellis & Blackburn. Ellis, Blackburn, & Ellis. Espinasse. Foster & Finlason. Foster's Crown Cases. Stephen's General View of the Criminal Law. Hale's Pleas of the Crown. Hawkins's Pleas of the Crown (Curwood's edition) Stephen's History of the Criminal Law. TABLE OF STATUTES CITED 50 & 51 Vict. c. 57 . . . . 50 & 51 Vict. c. 55, s. 29 . c. QO PAGE . 380 93, 116 53 & 54 Vict. c. 54 & 55 Vict. c. 71, s. 26 38 . . . — , s. 13 '. ii PAGE 382 348 i5, 348 50 & 51 Vict. c. 58, s. 32 . 50 & 51 Vict. c. 71, s. 8 . o 1 n . 329 93 93 93 . 337 . 106 . 235 . 236 . 237 . 110 110, 338 . 338 . 106 106 48 . 49, 50 106 98 98 . 98 226 226 226 226 . 226 226 226 . 226 . 224 224 224 225 . 225 225 . 225 . 225 224 '. ^93 94 111,351 . 147 . 380 s 14 349 s 15 350' — , s. 18 349 fi 11 54 & 55 Vict. c. 46, s. 10 295 51 & 52 Vict. c. 43, s. 180 51 & 52 Vict. c. 40 . . . . 51 & 52 Vict. c. 64, s. 3 . s 12 295 54 & 55 Vict. c. 69, s. 1 s 8 ■ 1, 2 7j 8 3, 338 8 55 & 56 Vict. c. 55 & 56 Vict. c. 19 . . 65, s. 1 47 s S 114 52 Vict. c. 10 113 s 4 113 s 5 114 52 & 53 Vict. c. 10, s. 7 . 52 & 53 Vict. c. 49, s. 22 . 52 & 53 Vict. c. 52, s. 1 . . p 2 56 & 57 Vict. c. 57 & 58 Vict. c. 54 . . 41, s. 1 ss. 6 6 20, 221 220 57 & 58 Vict. c. 60, s. 1( s. 66 , 4 . 1 . 7 . . 7 . 8 . 7 . tl . t8 . 52 . )8 . 9 . 22 . )7 . 3 55 . )4 . )7 37 . ^0 . 3 )5 . 36 . 22 384 52 & 53 Vict. c. 63, s. 3 . 52 & 53 Vict. c. 69, s. 1 387 — , s. 67 — , s. 70 387 384 cH n — , s. 10 388 , s. / . . 53 Vict. c. 5, s. 7 . . . . s 12 388 — , s. 14 389 c 1 07 — , s. IS 387 c Q^ !^ , s. IS 384 o ooo , s. IS 385 c OQl — , s. 1£ 388 o Q'i*? — , s. 24 389 o 0^7 , s. 24 389 , s. 315 . . . a 2e 388 — , s. 3C 390 c Ql 7 ■ -, s. 4] 384 , s. 4i 385 o Q1 Q -, s. At 85, 386 -, s. 5J 390 S 3'''^ , s. 5( . 388 o QO4 , s. 6( . 386 s 3'^5 , s. 6( . 390 53 & 54 Vict. c. 21, s. 7 c 1/1 , s. 6S 83-389 , s. 6< . 388 53 & 54 Vict. c. 45, s. 9 53 & 54 Vict. c. 59, s. 28 53 & 54 Vict. c. 71, s. 3 , s. 6< . 384 s. 7 388 LIST OF ABBREVIATIONS (OMITTING REFERENCES TO THE LAW REPORTS A. & E. . . Adolphus & Ellis. B. & A. . . Barnewall & Alderson. B. & Ad. . . Barnewall & Adolphus. B. & B. . . Broderip & Bingham. B. & C. . . Barnewall & Cresswell. B. & P. . . Bosanquet & Puller. Bell, C. C. . Bell's Crown Cases. Brooke's Abt. . Brooke's Abridgment. Burr, . . Burrow's Reports. Cald. . . Caldecott's Settlement Cases. Camp. . . Campbell's Reports. Car. & Mar. . Carrington & Marshman. C. & K. . . Carrington & Kirwan. CI. & F. . . Clark & Finnelly. C. L. C. . . Criminal Law Commission. Co. . . Coke's Report. Cox, C. C. . Cox's Criminal Cases. C. & P. . . Carrington & Payne. D. & B. . . Dearsly & Bell. D. & P. . . Dearsly & Pearce. Den. . . Dennison's Crown Cases. Doug. . . Douglas. <^ Ea. . . . East's Reports. East, P. C. . East's Pleas of the Crown E. & B. . . Ellis & Blackburn. E. B. & E. . Ellis, Blackburn, & Ellis. Esp. . . Espuiasse. F. & F. . . Foster & Finlason. Foster . . Foster's Crown Cases. Gen. View Cr. L. Stephen's General View of the Criminal Law. Hale, P. C. . Hale's Pleas of the Crown. Hawk. P. C. . Hawkins's Pleas of the Crown (Curwood's edition). Hist. Cr. Law . Stephen's History of the Criminal Law. Z/.S7' OF ABBREVIATIONS Inst. Coke's Institutes. Kel. Kelvnge. L. & C. . . Leigh & Cave. Lew. . . Lewin's Crown Cases. L. J. (M.C. ) . Law Journal, Magistrates' Cases. L. J. (Q. B. ) . Law Journal, Queen's Bench. L. R. H. L. . Law Reports, House of Lords. L. R. P. C. . Law Reports, Privy Council. L. T. (N.S. ) . Law Times, New Series. :Moc1. Moo. Moo. & R. M. & S. . jNIodern Reports. Moody's Crown Cases. Moody & Roljinson. Maule & Selwyn. N. R. . . New Reports. Rep. C. L. C. . Report of the Criminal Law Commission. W. Rob. . . ^V. Robinson's Admiralty Reports. R. & M. . . Ryan & Moody. Ro.scoe, Cr. Ev. . Roscoe's Criminal Evidence. R. & R. . . Russell & Ryan. Russ. Cr. . Russell on Crimes, 5th edition. Salk. . . Salkeld's Reports. S. L. C. . . Smith's Leading Cases. Starkie, N. P. . Starkie's Nisi Prius Reports Steph. Com. . Stephen's Commentaries. St. Tr. . . State Trials. Str. . . Strange's Reports. T. R. . . Term Reports Ves. . . Vesej's Rejiorts. Viner's Abt. . Vuaer's Abridgment. W. R. . . Weekly Reporter. Wils. •. . Wilson's Reports. CONTENTS PART PAGE I. Preliminary 1 II. Offences against Public Order — Internal and External . 42 III. Abuses and Obstructions of Public Authority S7 IV. Acts injurious to the Public in General 12.3 V. Offences against the Person, the Conjugal and Parental Rights, and the Reputation of Individuals .... 156 VI. Offences against Rights of Property and Rights arising OUT OF Contracts 241 PART I PRELIMINARY Explanation of Terms CHAPTER I OF PUNISHMENTS ART. 1. Punishments 3 2. Punishment of Death 3 3. Punishment of Penal Servitude 3 4. Punishment of Imprisonment 4 '). Imprisonment to be Separate 4 G. Hard Labour 4 7. Employment of Piisoners not sentenced to Hard Labour ... (i 8. Solitary Confinement (i J). Imprisonment as a Misdemeanant of the First Division ... (> 10. Detention in a Reformatory 7 11. Subjection to Police Supervision 7 12. Punishment of Whipping 8 13. Fine 10 14. Putting under Recognizances Id CONTENTS CHAPTER II CLASSIFICATION OF CRIMES AND GENERAL PROVISIONS AS TO THEIR PUNISHMENT ART. PAGE 15. Treason, Felony, and Misdemeanor 11 16. Consequence of a Conviction of Treason or Felony 11 17. Recording Sentence of Death 13 18. Punishment for Felony if no Express Punishment Provided — Felonies under the Consolidation Acts 13 19. Previous Convictions 14 •20. Special Offences in the Case of Persons Twice Convicted ... 15 21. Punishment of Persons under Sixteen Years of Age 16 22. Probation of First Offenders 17 23. Punishment of Misdemeanors 18 24. Cumulative Punishments 18 CHAPTER III GENERAL EXCEPTIONS 25. Definitions subject to Exceptions 20 26. Children under Seven 20 27. Children between Seven and Fourteen 20 28. Insanity 20 29. Presumption of Sanity .... 22 30. Drunkenness 22 31. Married Women 23 32. Compulsion 24 33. Necessity 24 34. Ignorance of Law 26 35. Ignorance of Fact 27 CHAPTER IV PARTIES TO THE COMMISSION OF CRIMES— PRINCIPAL AND ACCESSORY 36. Pi-incipals in First Degree 30 37. Innocent Agent 30 38. Principals in the Second Degree 31 39. Common Purpose 32 40. Accessories before the Fact 33 41. Where Crime suggested is committed m a Different Way ... 34 42. When Crime committed is probable Consequence of Crime Suggested 34 CONTEXTS ART. PAGE 43. Where Instigation is Countermanded 35 44. Instigation to commit a Crime different from the one committed 36 45. Accessories and Principals in Second Degree treated as Princi- pals in First Degree 36 46. Accessories after the Fact 36 47. Punishment of Accessories after the Fact in General and under the Consolidation Acts 37 CHAPTER V DEGREES IN THE COMMISSION OF CRIME— INCITEMENT- CONSPIRACY— A T TEMPTS 48. Incitement to Commit a Crime 39 49. Conspiracy to Commit a Crime 39 50. Definition of Attempts 39 51. Attempt — Misdemeanor 41 PART II OFFENCES AGAINST PUBLIC ORDER— INTERNAL AND EXTERNAL CHAPTER VI HIGH TREASON, TREASONABLE FELONIES, AND ASSAULTS ON THE QUEEN, DISCLOSING OFFICIAL SECRETS, MIS- APPLYING MARKS OF A PUBLIC DEPARTMENT 52. High Treason by Imagining the Queen's Death 42 53. What Amounts to Imagining the Queen's Death 42 54. High Treason by Levying War 43 55. High Treason by Adhering to the Queen's Enemies 44 56. Adherence to a De Facto King not Treason 44 57. Killing the King's Wife or Son 44 58. When Words are Treason 44 59. Violating the King's Wife, Etc 45 60. Killing the Chancellor, Etc 45 61. Punishment for Treason 46 62. All Principals in Treason 46 63. Treasonal)le Felonies 47 64. Inciting to Mutiny 47 CONTENTS ART. PAGE 1)5. Disclosure of Official Information 48 66. Breach of Official Trust 49 67. Incitement to Disclosure of Official Information and Breach of Official Trust 50 68. Misapplication of the Mark of a Public Department 51 69. Assaults on the Queen 51 70. Contempts against the Queen 52 71. Solemnising or Assisting at Marriage of a Member of the Royal Family 52 CHAPTER VII AFFRA YS, UN LA WFUL ASSEMBLIES, ROUTS, RIOTS, TUMUL- TUOUS PETITIOXIXG AND UN LA WFUL DRILLING 72. Sending Challenges and Provoking to Fight 54 73. Going Armed so as to cause Fear 54 74. Affray 54 75. Unlawful Assembly . o5 76. Routs 56 77. Riots 56 78. Preventing Reading Proclamation and Continuing to Riot after Proclamation 56 79. Riotous Demolition of Houses, Etc 57 80. Riotous Damage of Houses, Etc 58 81. Persons Assembled in order to Smuggle 5S 82. Three Persons Armed in Pursuit of Game by Night 60 83. Riotously Preventing the Sailing of Ship 60 84.' Forcibly Entry and Detainer 61 85. Political Meetings in Westminster 61 86. Procuring Signatures to Petition without Authority and Tumul- tuous Petitioning 62 87. Uidawful Drilling 63 CHAPTER VIII OFFENCES AGAINST INTERNAL TRANQUILLITY BY UN- LAWFUL ENGAGEMENTS AND COMBINATIONS AND CONFEDERA CIES 88. Unlawful Oaths. Oaths to Commit Murder or Treason ... 64 89. Other Unlawful Oaths 64 90. Compulsion, How Far a Defence 65 91. Unlawful Clubs and Societies 66 92. Quakers and Religious and Charitable Societies excepted ... 67 93. Punishment of Members 68 94. Permitting Meetings of Unlawful Clubs 68 CONTENTS ART. PAGE 95. Jesuits and Mouks 68 96. Seditious Words and Libels 70 97. Seditious Conspiracy 70 98. Seditious Intention Defined 70 99. Presumption as to Intention 71 CHAPTER IX OFFENCES AGAINST EXTERNAL PUBLIC TRANQUILLITY —OFFENCES AGAINST FOREIGN NATIONS 100. Violation of Ambassadors' Privileges 72 101. Arrest of Ambassador 72 102. Punishment 72 103. Libels on Foreign Powers 73 104. Interference in Foreign Hostilities 73 105. Ships, Etc., referred to in Article 104 to be forfeited .... 75 106. Increasing Force of Ships for Foreign Belligerents and Pro- curing Enlistment by Misrepresentation 76 107. Presumption of Knowledge of Purpose for which Ship is built 77 CHAPTER X OFFENCES AGAINST PERSONS ON THE HIGH SE AS- PI R A C Y—SLA VE- TRA DING 108. Piracy 78 109. Piracy with Violence 79 110. Committing Acts of Hostility under Foreign Commission . . 79 111. Adhering on the Sea to the Queen's Enemies 79 112. Boarding Ships and Throwing Cargo Overboard 80 113. Masters and Seamen Favouring Pirates 80 114. Trading with Pirates and Conspiring with Them 81 1 1 5. Punishment for Statutory Piracies 81 116. Not Fighting Pirates 81 117. Slave-trading Defined 82 118. Piratical Slave-trading 83 119. Punishment of Slave-trading 84 120. Serving on a Slave-ship, Felony 84 121. Serving on a Slave-ship, Misdemeanor 85 122. Kidnapping Pacific Islanders 85 CONTENTS PART III ABUSES AND OBSTRUCTIONS OF PUBLIC AUTHORITY CHAPTER XI ABUSES OF AUTHORITY, OPPRESSION, EXTORTION, FRAUD, NEGLECT OF DUTY, REFUSAL TO ACT ART. PAGE 123. " Public Officer " Defined 87 124. Extortion and Oppression by Public Officers 88 125. Illegally Imprisoning Subjects Beyond the Seas 89 126. Frauds and Breaches of Trust by Officers 90 127. Neglect of Official Duty 90 128. Offences by Soldiers . . . . ■ 92 129. Offences by Post-office Officials 92 1.30. Offences by a Sheriff, Etc 93 131. Offences by a Coroner 93 132. Offences by Inland Revenue Officers, Etc 93 133. Refusal to serve an Office 94 CHAPTER XII DISOBEDIENCE TO LA WFUL ORDERS 134. Disobedience to a Statute 95 135. Disobedience to Lawful Orders of Court, Etc 95 CHAPTER XIII BRIBERY AND CORRUPTION— SALE OF OFFICES 136. Judicial Corruption 97 137. Corruption of other Public Officers 97 138. Corruption of Public Bodies 98 139. Embracery 99 140. Definition of Bribery of Voters 100 141. Definition of Undue Influence 101 142. Definition of Treatmg 102 143. Punishment of Briber}' at Certain Elections 102 144. Offences at Elections 103 145. Definition of Office 103 146. Selling Offices 104 147. Making Interest for Offices for Reward 104 CONTEXTS CHAPTER XIV MISLEADING JUSTICE— PERJUBY— FALSE SWEARING- SUBORNATION ART. PAGE 148. Perjury Defined 106 149. Subornation of Perjury lOS 150. Punishment of Perjury and Subornation 109 151. False Swearing 109 152. Forging Instruments of Evidence and tendering Them in Proof 110 153. Officers giving False Certificates Ill 1 54. False Entries as to Copyright Ill 155. False Declaration, Personation, Etc., to obtain a Pension under the Police Act Ill 156. Maintenance 112 157. Conspiracy to defeat Justice — Dissuading Witnesses from Testi- fying ll.'J 158. Intimidation of Witnesses before a Roj-al Commission ... 11.'? CHAPTER XV ESC A PE—BESCUE—PBISONBBEA CH— MISPRISIONS— COMPOUNDING OFFENCES 159. Voluntary Permission by Officers of Escapes by Prisoners . . 115 1 60. Negligent Permission by Officers of Escapes by Prisoners . . 115 161. Sheriff Procuring Concealment or Permitting Escape .... 116 162. Rescue Defined 116 163. Quality of Offence of Rescue 116 164. Felonious Rescues 117 165. Rescuing Murderers 117 166. Assisting Escape of Prisoners of War 117 167. Assisting Escape from a Constable or Peace Officer 118 1 68. Helping to Escape from Prison 118 169. Escape by Persons in Custody 119 170. Breakmg Prison . 119 171. Escaping from Certain Prisons 120 172. Poundbreach 121 173. Transports or Persons sentenced to Penal Servitude being at Large 121 174. Misprision of Treason 121 175. Misprision of Felony 122 176. Agreement not to Prosecute 122 177. Compounding Penal Actions 122 CONTENTS PART IV ACTS INJURIOUS TO THE PUBLIC IN GENERAL CHAPTER XVI UNDEFINED MISDEMEANORS ART. PAGF 178. Acts involving Public Mischief 123 CHAPTER XVII OFFENCES AGAINST RELIGION 179. Blasphemy defined — Alternative Definitions 125 180. Heresies 126 181. Denying Truth of Christianity, Etc 127 182. Depraving the Lord's Supper 128 183. Depraving the Book of Common Prayer 128 184. Clergymen refusing to use the Book of Common Prayer ... 129 185. Disturbing Public Worship 130 CHAPTER XVIII OFFENCES AGAINST MORALITY 186. Sodomy 131 187. Attempt to commit Sodomy 131 188. Outrages on Decency 131 189. Ecclesiastical Censures for Immorality 132 190. Public Indecencies 132 191. Obscene Publications 133 191a. Sending Indecent Letters 135 192. Procuring the Marriage of Parent of a Bastard 135 193. Unlawfully Defiling Women 135 194. Householders permitting Defilement of Girls on their Premises 136 195. Conspiracy to Defile 137 196. Preventing the Burial of Dead Bodies and Disinterring them . 138 CONTENTS CHAPTER XIX COMMON NUISANCES— DISORDERLY HOUSES ART. PAGE 197. Common Nuisance 140' 198. Common Nuisance a Misdemeanor 141 199. Punishment for Keeping Disorderly Houses 141 200. Disorderly Houses 142 201. Common Bawdy Houses 142 202. Common Gaming Houses 143^ 203. Common Betting Houses 143 204. Evidence that a House is a Common Gaming House 144 205. Disorderly Places of Entertainment 145 206. Disorderly Inns 146 207. Lotteries 146 208. Nuisances to Health, Life, and Property 147 209. Nuisances by Offensive Ti-ades 148 210. Nuisances to Highways 148 211. Nuisances to Bridges 149 212. Nuisances to Navigable Rivers 149 ■212a. Nuisances in the Post Office 150' CHAPTER XX VAGRANCY 213. Idle and Disorderly Persons 151 214. Rogues and Vagabonds 152 215. Incorrigible Rogues 154 216. Punishment of Rogues, Vagabonds, Etc. 155 PART V OFFENCES AGAINST THE PERSON, THE CONJUGAL AND PARENTAL RIGHTS, AND THE REPUTA- TION OF INDIVIDUALS CHAPTER XXI CASES IN WHICH INFLICTION OF BODILY INJURY IS NOT CRIMINAL 217. Exceptions to Rest of Part V. 156 218. Execution of Lawful Sentences 156 CONTENTS AET. PAGE 219. Suppression of Riots 157 220. Prevention of the Commission of Crimes and Arrest of Criminals 158 221. Private Defence 159 222. Lawful Force 161 223. Superior Orders to employ Force 162 224. Consent to Bodily Injury 164 225. Right to consent to Bodily Injury for Surgical Purposes . . . 164 226. Surgical Operation on Person incapable of Assent 164 227. Right to consent to Bodily Injury short of Maim 165 228. No Right to consent to Infliction of Death 165 229. No Right to consent to Injury constitutmg a Breach of the Peace 166 230. Consent to be put in Danger 166 231. Accidental Infliction of Bodily Injury by Lawful Act — What Acts are Lawful 167 CHAPTER XXII OF CULPABLE NEGLIGENCE AND OF DUTIES TENDING TO THE PBESERVATION OF LIFE 232. Death or Bodily Injury caused by Omission to Discharge a Legal Duty 169 233. Causing Death by Omissions other than those mentioned in Article 232 171 234. Duty to provide Necessaries of Life 171 235. Delegation of Duty defined in Article 234 172 236. When Direct Performance of Duty Impossible 173 237. Duty of Care in doing Dangerous Acts 173 238. Duty of Persons doing Acts requiring Special Skill or Know- ledge 174 CHAPTER XXIII HOMICIDE 239. Homicide defined— When a Cliild becomes a Human Being . . 175 240. Killing Defined 175 241. When an Act is the Remote Cause of Death or one of Several Causes 178 242. Wlien causing Death does not amount to Homicide 180 ■243. When Homicide is Unlawful 181 CONTENTS CHAPTER XXIV MURDER— MANSLAUGHTER— ATTEMPTS TO COMMIT MURDER— CONGEALMEXT OF BIRTH ART. PAGE 244. Manslaughter and Murder defined 182 245. Effect and Definition of Provocation 185 246. Wlien Provocation does not extenuate Homicide 188 247. Provocation to Tliird Person 190 248. Suicide — Abetting Suicide 190 249. Manslaugfiter of Oneself 190 250. Accessories before the Fact in Manslaughter 190 251. Presumption that Killing is ^lurder 191 252. Punishment of Murder 191 253. Punishment of Manslaughter 192 254. Attempts to Commit Murder 192 255. Threats and Conspiracies to Murder 193 256. Concealing the Birth of Children 194 CHAPTER XXV THE MALICIOUS IXFLIGTIOX OF BODILY INJURIES AMOUNTING TO FELONY 257. Woundings and Acts Endangering Life punishable with Penal Servitude for Life 195 258. Blowing up Buildings and Ships with Intent to Injure — Four- teen Years Penal Ser%dtude 198 259. Administering Poison so as to Endanger Life or Cause Harm — Ten Years Penal Servitude 198 CHAPTER XXVI THE INFLICTION OF BODILY INJURIES NOT AMOUNTING TO FELONY 260. Malicious Wounding and Similar Acts punishable with Five Years Penal Servitude 199 261. Negligent Acts pimi-shable with Two Years Imprisonment . . 200 CHAPTER XXVII ASSAULTS AGGRAVATED AND COMMON PUNISHABLE ON INDICTMENT 262. Assault and Battery and Assault defined 202 263. Punishment of Assaults witli Intent to Commit Sodomy . . . 204 xl CONTEXTS PAGK ART. 264. Assaults on Persons Protecting Wreck "-^04 265. Assaults causing Actual Bodily Harm 204 266. Resisting Lawful Arrest 204 267. Assaults punishable with Two Years Imprisonment 205 268. Punishment of Common Assault on Indictment 206 CHAPTER XXVIII BAPE, ETC. 269. Definition of Carnal Knowledge 207 270. Definition of Rape 207 271. Other Provisions as to Rape 208 272. Punishment of Rape and Carnally Knowing Children under Thirteen 209 273. Carnally Knowing Girls between Thirteen and Sixteen . . . 209 CHAPTER XXIX CRIMES AFFECTING COXJUGAL AND PARENTAL RIGHTS- BIGAMY— A BD UCTION 274. Definition and Punishment of Bigamy 211 275. Principals in Second Degree in Bigamy 213 276. Irregular Marriages under the Marriage Act of 1823 .... 213 277. Irregular Marriages under the Marriage Act of 1837 .... 214 278. Abduction with Intent to Marry 215 279. Abduction of Girls under Sixteen 216 280. Abduction of Girls under Eighteen 218 281. Detaining Women m Brothels 218 282. Stealing Children imder Fourteen 219 CHAPTER XXX OFFENCES AGAINST CHILDREN BY PARENTS AND OTHERS 283. Neglecting to provide Food, Etc. , for Children 220 284. Cruelty to Children 220 285. Cruelty to Children by Interested Person 221 286. Abandoning Children under Two 221 COI^TENTS xli ART. CHAPTER XXXI OFFENCES COXCEBXIXG PA UPERS PACB 287. Promoting Marriages --3 •288. Desertion of Paupers "-23 CHAPTER XXXII OFFENCES AS TO LUNATICS AND ASYLUMS 289. Offences Committed in Respect of Lunatics 224 290. Other Breaches of the Lunacy Act 226 CHAPTER XXXIII LIBELS ON PRIVATE PERSONS 291. Definition of Libel 227 292. Things Capable of Being Libels 228 293. Defamatory Matter 228 294. Publication defined 229 295. When a Libel is Malicious 231 296. Publication of the Truth 231 297. Publication of Matter Honestly Believed to be True .... 231 298. Fair Criticism 233 299. Parliamentary Proceedings and Fair Comments Thereon . . 235 300. Reports in Newspapers of Proceedings of Trials and Public Meetings 235 301. Publication in a Court of Justice 237 302. Fair Reports of Proceedings of Courts 238 303. Punishment for Libel 239 xlii CONTENTS PART YI OFFENCES AGAINST RIGHTS OF PROPERTY AND RIGHTS ARISING OUT OF CONTRACTS CHAPTER XXXIV PROPERTY— POSSESSIOX—ASPORTATIOX— BAILMENT ART. PAG li 304. Offences Against Rights of Property and Rights Arising out of Contracts 241 305. Property in Movable Things 242 306. Possession 243 307. Special Owner 245 308. Possessor Special Owner as Against Stranger 245 309. Taking and Carrying Away 246 310. Baihnent defined 247 311. Oflfences Relating to Property Committed by and Against Married Women 248 CHAPTER XXXV THINGS CAPABLE OR NOT OF BEING STOLEN 312. Things Capable of Being Stolen 249 313. Movable Things— Land— Things Fixed to Land 249 314. Title-Deeds and Choses in Action 249 315. Water — Gas— Electricity 250 316. Tame Animals and Wild Animals in Captivity 251 317. Wild Animals Living and Dead 252 318. Dead Bodies 252 319. Things Abandoned 253 320. Things of Value 253 CHAPTER XXXVI THEFT IN GENERAL 321. Definition of Theft 254 322. Theft by Takmg and Carryuig Away 256 323. Theft by a Servant— Embezzlement 258 CONTENTS xliii A.RT. PAGE 824. Theft by a False Pretence 259 325. Theft by Taking Advantage of a Mistake 261 326. Theft by Bailees 262 327. By and from Whom Theft may be Committed 362 328. Finding Goods 264 329. Conversion after a Taking Amounting to Trespass 266 330. Conversion after Innocent Taking 267 331. Obtaining by False Pretences not Theft 268 332. Temporary Taking is not Theft 268 333. Taking Tame Animal Wandering not Theft 269 334. Evidence as to Theft 269 CHAPTER XXXVII EMBEZZLEMENT BY CLERKS AND SERVANTS 335. Embezzlement by Clerks and Servants — Who are Servants . 271 336. The Property Embezzled must be the Master's 275 337. Distinction Between Embezzlement and Other Kinds of Theft 276 338. Evidence as to Embezzlement 278 CHAPTER XXXVIII ROBBERY AND EXTORTION BY THREATS 339. Robbery 279 340. Extortion by Threats 279 CHAPTER XXXIX BURGLARY, HOUSEBREAKING, ETC. 341. Definitions 282 342. Robbing Places of Worship— Burglary 283 343. Housebreaking and Commission of Felony 284 344. Entering Dwelling-House with Intent 284 345. Breaking Out after Committing Felony '. 284 346. Being Found in Possession of Housebreaking Instruments . . 285 CHAPTER XL PUNISHMENTS FOR STEALING PARTICULAR THINGS AND RECEIVING GOODS UNLAWFULLY OBTAINED 347. Punishment for Stealing Things for which no Special Punish- ment is Provided -"" 348. Killing Animals with Intent to Steal Equivalent to Stealing . 286 349. Stealing and Concealing Valuable Securities 287 350. Thefts punishable with Penal Servitude for Life 288 xliv COjYTF^VTS ART. PAGE 351. Thefts punishable with Penal Servitude for Fourteen Years . 289 352. Thefts punishable with Penal Servitude for Seven Years ... 291 353. Thefts punishable with Penal Servitude for Five Years . . . 292 354. Thefts punishable with Imprisonment 294- 355. Opening Letters 295 356. Unlawfully Dredging for Oysters 295 357. Soliciting to Commission of Offences under the Post Office Acts 296 CHAPTER XLI OBTAINING PROPERTY BY FALSE PRETENCES AND OTHER CRIMINAL FRAUDS AND DEALINGS WITH PROPERTY 358. Obtaining Goods, Etc. , by False Pretences 297 359. Definition of ' ' False Pretence " 298 360. Of "Obtaining" 301 361. Intent to Defraud 303 362. Cheating at Play 303 363. Obtaming Credit, Etc., by False Pretences 304 364. Concealing Deeds and Incumbrances 304 365. Conspiracy to Defraud or Extort 305 366. Pretending to exercise Witchcraft 306 367. Cheating 306 368. Servants Feeding Horses, Etc. , against Orders 307 369. Fraudidently Concealing Ore 308 370. Taking Marks from Public Stores 308 371. Concealing Treasure Trove 308 CHAPTER XLII FRAUDS BY AGENTS, TRUSTEES, AND OFFICERS OF PUBLIC COMPANIES— FALSE ACCOUNTING 372. Punishment of Misdemeanors in this Chapter 310 373. " Misappropriate " defined 310 374. Misappropriations by Bankers, Merchants, Etc 310 375. Misappropriation under Power of Attorney 312 376. Misappropriation by Factors or Agents 312 377. Clerks, Etc. , Assisting in Procuring Advances 313 378. Fraudulent Trustees 314 379. Frauds by Directors and Public Ofiicers 314 380. Rule of Evidence . . . • 316 381. Fraudulent False Accounting 316 CONTENTS xlv CHAPTER XLIII RECEIVING ART. PAGE 382. Receiving defined 318 383. Receiving Property Unlawfully Obtained 319 CHAPTER XLIV FORGERY IN GENERAL 384. Definition of Forgery — Intent to Defraud 321 385. Making a False Document defined 323 386. " Document " 328 CHAPTER XLV PUNISHMENT OF PARTICULAR FORGERIES 387. "Utter," "Resemble," "Forge" 329 388. Forgeries punishable with Penal Servitude for Life 330 389. Forgeries punishable with Fourteen Years Penal Servitude . 334 390. Forgeries punishable with Seven Years Penal Servitude . . . 336 391. Forgery punishable with Five Years Penal Servitude .... 338 392. False Entry as to Copyright 338 393. Defacing Rate Books 338 394. Forging Ballot Papers 339 395. Forging Telegrams 339 396. Making or Possession of Paper, Etc. , for Forging Bank Notes punishable with Fourteen Years Penal Servitude .... 339 397. Ofifences relating to Exchequer Bills and Paper used for them, Seven Years Penal Servitude 343 398. The Like ; Three Years Imprisonment 344 399. " Trade Mark " and " Trade Description " defined 344 400. Forging Trade Marks and Misapplying Trade Descriptions . . 346 401. Accessories Abroad 348 402. Off"ences Relating to Stamps 348 403. Forgery at Common Law, Misdemeanor 353 CHAPTER XL VI PERSONA TION 404. Personation to Obtain Property 351 405. Acknowledging Recognizance, Etc., in False Name 352 406. Personation in Fraud of the Admiralty 352 407. Personation at Elections 352 xlvi CONTENTS CHAPTER XLVII OFFENCES KELATING TO THE COIN ART. PAGE 408. Interpretation of Terms 354 409. Coining and Possession of Instruments for Coining — Penal Servitude for Life 355 410. Clipping — Penal Servitude for Fourteen Years 356 411. Coining Copper or Foreign Money — Penal Servitude for Seven Years 357 412. Coining Foreign Copper Money — Penal Servitude for Seven Years 358 413. Uttering and Possessing with Intent to Utter 358 414. Uttering Base Copper or Foreign Coin 359 415. Making or Selling Medals resembling Coin 360 410. Principals and Accessories 361 CHAPTER XLVIII MALICIOUS INJURIES TO PROPERTY 417. Burning Ships of War, Etc.— Felony— Death 362 418. Offences committed by or in Relation to Explosive Substances 363 419. Arson, Etc. — Penal Servitude for Life 364 420. Arson, Injuries to Ships or Cattle, Etc. — Fourteen Years Penal Servitude 367 421. Threats to Burn, Etc. — Ten Years Penal Servitude 369 422. Malicious Mischief — Seven Years Penal Servitude 369 423. Malicious Mischief— Five Years Penal Servitude 372 424. Makmg and Possessing Gunpowder for Certain Purposes . . . 373 425. Sundry Malicious Injuries to Property 373 CHAPTER XLIX OFFENCES RELATING TO GAME, WILD ANIMALS, AND FISH 426. "Night "'and " Game " defined 376 427. Night Poaching and Assaulting Keeper 376 428. Offences relating to Deer, Hares, and Rabbits 377 CONTENTS xlvii CHAPTER L OFFENCES CONNECTED WITH TBADE AND BREACH OF CONTRACT ART. PAGE 429. Absconding with Property in Contemplation of Bankruptcy . 379 430. Punishment of Fraudulent Debtors 379 431. Undischarged Bankrupt Obtaining Credit 383 432. False Claim on Bankrupt's Estate 383 433. Offences by Masters and Owners of Ships 383 434. Offences by the Masters of British Ships 384 435. Neglect of Duty in Case of Collision 385 436. Offences by Pilots 386 437. Sending Unseaworthy Ships to Sea 386 438. Forging False Declarations, Etc. , under the Merchant Shipping Act 387 439. Various Offences under the Merchant Shipping Act, 1894 . 389 440. Conspiracies in Restraint of Trade 390 441. What Acts done in Restraint of Trade are not Unlawful . . 391 442. Conspiracies in Restraint of Trade, Misdemeanors 391 443. Criminal Breaches of Contract of Service — Intunidation and Picketing 391 444. Third Offences against the Truck Acts 394 Appendix of Notes 395 Alphabetical Table of Indictable Offences 433 Index 457 A DIGEST OF THE CRIMINAL LAW PAKT I PRELIMINARY ExPLAXATiox OF Terms. CHAP. IV.— Parties to the Co.m- CHAP. I. — Punishments. i mission of Crimes — Principal CHAP. II. — Classification of | and Accessory. Crimes and General Provisions CHAP. V. — Degrees in the Com- as TO THEIR Punishment. j mission of Crime — Incitement — CHAP. III. — General Exceptions. Conspiracy — Attempts. EXPLANATION OF TERMS. PENAL SERVITUDE. ^ Whenever it is stated that an offender is liable to a specified term of penal servitude, the meaning is that he may be sentenced to that or to any shorter term of penal servitude not being less than three years, or to imprisonment for any term not exceeding two years with or without hard labour. ^ In cases where the punishment appointed for an offence by statute is transportation, penal servitude has been sub- stituted. ^ 54 & 55 Vict. c. 69, s. 1. The effect of this and the repealed 27 & 28 Vict. c. 47, s. 2, seems to be that where the term of five years was the maximum sentence in Acts previous to 5 August, 1891, it still remains so. '^ 16 & 17 Vict. c. 99, 20 & 21 Vict. c. 3. , B A DIGEST OF IMPRISONMENT. If tlie punishment specified is a term of imprisonment with hard labour, or a fine of a sjjecified amount, the mean- ing (unless any qualification is specified) is that the offender may be sentenced to that or to any shorter term of imprison- ment, with or without hard labour, or to pay any fine of less amount. WHIPPING. The letter W at the end of a reference to a statute means that the offender may, if a male under sixteen years of age, be sentenced to whipping. ALTERATIONS IN LANGUAGE OF STATUTES. The future and the past future are uniformly altered to the present tense. Where " shall " is used as an imperative " must " is substituted. Where the language of a statute appeared needlessly verbose for common purposes, the lead- ing word or an equivalent is preserved in the text, and the words omitted are inserted in a foot-note for reference if necessary. The language of the statutes is in most cases rearranged for the sake of clearness ; but the words " redrawn," " con- densed," or others of the same sort, indicate the cases in which the greatest alterations have been made. DRAFT CODE. The expression " Draft Code " means the Draft Code appended to the Report of the Crimmal Code Commission published in 1879, and marked C. 2345. THE CRIMINAL LAW CHAPTER I 1 of punishments Article 1. punishments. The following punishments are inflicted by the law of England for the crimes hereinafter defined : — Death, penal servitude, imprisonment, detention in a reformatory school, subjection to police suiiervision, whipping, fines, putting under recognizance. Article 2. punishment of death. - The punishment of death is inflicted by hanging the offender by the neck till he is dead. Article 3. punishment of penal servitude. "The punishment of penal servitude consists in keeping the offender in confinement and compelling him to labour in the manner and under the discipline appointed by the Acts relating to penal servitude. 1 See 1 Hist. Cr. Law, ch. xiii. p. 457 ; see Draft Code, Pt. II., ss. 7-lS. - As to treatment of prisoners under sentence of death in prison, see 28 & 29 Yict. e. 126, Sch. I, 01. As to the history of the jjunishment of death and lienefit of clergy, see 1 Hist. Cr. Law, 457-80. •" 16 & 17 Vict. c. 99 ; 20 & 21 Vict. c. 3 ; 27 & 28 Vict. c. 47 ; 42 & 43 Vict. c. 55, s. 2 ; 54 & 55 Vict. c. 69 ; and see 5 Geo. 4, c. 84. The subject of the nature of the punishment of penal servitude is discussed at length in li. v. Mount, 1875, L. R. 6 P. C. 283. See, too, I Hist. Cr. Law, 480-483. 15 2 A DIGEST OF Article 4. punishment of imprisonment. ^ The punishment of imprisonment consists in the detention of the offender in prison, and in his subjection to the disci- pline appointed for prisoners during the period expressed in the sentence. Imprisonment is of three kinds : (i.) Imprisonment with hard labour. (ii.) Imprisonment without hard labour. (iii.) Imprisonment as a misdemeanant of the iirst division. Article 5. imprisonment to be separate. ^ All prisoners sentenced to imprisonment with or withtjut hard labour must be prevented from holding any communi- cation with each other, either by every prisoner being kept in a separate cell by day and by night, except when he is at chapel or taking exercise, or by every prisoner being confined by night to his cell and being subjected to such superintend- ence during the day as will, consistently with the provisions of the Prisons Act, 1865, prevent his communication with any other prisoner. Article 6. hard labour. ^ Hard labour is of two classes, consisting — (1.) Of work at the tread-wheel, shot-drill, crank, cap- stan, stone-breaking, or such other like description of hard 1 See 28 & 29 Vict. c. 126. As to the history of the pimishment of im- prisonment, see I Hist. Cr. Law, 483-487. - 28 & 29 Vict. c. 126, s. 17. This has practically superseded sentences of solitary confinement. 3 28 & 29 Vict. c. 126, s. 19. THE CRIMINAL LAW bodily labour as may be appointed b}^^ the Secretaiy of State. (2.) Of such other description of bodily labour as may be apjDointed by the ^ Secretary of State. - Every male prisoner of sixteen years of age and upwards sentenced to hard labour must, during the whole of his sentence, be kept at hard labour of the first class for such number of hours, not more than ten or less than six (exclu- sive of meals), as may be prescribed by the visiting justices^ subject to the following provisions : — (1.) In cases in which the sentence is for more than three months the visiting justices may, after the expiration of the first three months of the sentence, substitute hard labour of the second for hard labour of the first class. (2.) If the surgeon certifies that any prisoner is unfit to be kept at either class of hard labour during the whole or an}- part of the prescribed hours, he shall not be kept to such labour during such time. (3.) If the sentence is for a period not exceeding fourteen days, jM'isoners may, in pursuance of rules made by ^ the Secre- tary of State, be kept in separate confinement at hard laboui- of the second class during the whole jjeriod of their sentences. 2 Every male prisoner under the age of sixteen sentenced to hard labour, and every female prisoner sentenced to hard labour, must be kept at hard labour of the second class during such number of hours — not more than ten or less than six (exclusive of meals) — in each day as may be pre- scribed by the visiting justices, unless the surgeon certifies that he or she is unfit for hard labour. 1 Formerly the justices in Sessions explained in 28 & 29 Vict. c. 126, s. 6 ; but see 40 & 41 Vict. c. 21, s. 5 (2). - Ibid. Sch. I. 34 (redrawai). :' Iljid. Sch. I. 35. A DIGEST OF Article 7. employment of prisoners not sentenced to hard LABOUR. ^ Provision must be made by the visiting justices for the I employment of all prisoners sentenced to imprisonment with- ' out hard labour. The visiting justices must make rules as " to the nature and amount of such employment ; but no prisoner not sentenced to hard labour can be punished for neglect of work, excepting by such alteration in the scale of diet as may be established by the rules of the prison in the case of neglect of work by such prisoners. Article 8. SOLITARY confinement. It was formerly lawful for the Court to order solitary con- finement as an incident of imprisonment. This became obsolete on the passing of 28 & 29 Vict. c. 126, s. 17 (see Art. 5, ante), and has now been abolished by various Statute Law Revision Acts. See in particular 56 & 57 Vict. c. 54 Article 9. imprisonment as a misdemeanant of the first division. ^ Imprisonment as a misdemeanant of the first division is inflicted by confining the offender within the prison. Such a misdemeanant is not to be deemed to be a criminal prisoner. He is permitted to maintain himself, and to procure or receive, at proper hours, food, wine, malt liquor, clothing, 1 28 & 29 Vict. c. 126, Sch. L 38. - 28 & 29 Vict. c. 126, s. 67 and Sch. I. 16, 31. The rules upon which this article is founded, apply in terms to debtors only ; but as a misde- meanant of the first division is not to be regarded as a " criminal prisoner," it would seem to follow that he is to be treated as a debtor. THE CRIMINAL LAW bedding or other necessaries ; but subject to examination and to such rules as may be approved by the visiting justices. He may be permitted to work and follow his trade or profession, provided such employment does not interfere with the regulations of the prison. Article 10. detention in a reformatory. ^ The punishment of detention in a reformatory school is inflicted by detaining the offender in such a school, and subjecting him to the discipline thereof, in the manner provided by the statutes relating to reformatory schools. Article 11. subjection to police supervision. ^The punishment of subjection to police supervision consists in the subjection of every person so punished to the following obligations when at large : — (a.) He must notify the place of his residence, and every change of his residence, within the same ^ police district, to the ^ chief officer of police of the district in which his resi- dence is situate. * He must comply with this requirement by personally presenting himself and declaring his place of residence to the constable, or person who at the time when such notification is made is in charge of the police station or office of which notice has been given to such holder or person as the place for receiving such notification, or if no such notice has been given in charge of the chief office of such chief officer of police. 1 29 & .soviet, c. 117. - .34 & 3.5 Vict. c. 112, s. 8 (language slightly altered). ^ For definitions of "police district," and "chief officer of police,"' see 34 &3.J Vict. c. 112, s. 20. ■* 42 & 43 Vict. c. 5o, s. 2. The section contains some other very slight additions to the earlier Act. A DIGEST OF (b.) ^ Whenever he is about to leave a police district he must notify such his intention to the chief officer of police of that district stating the place to which he is going, and also if required, and, so far as is practicable, his address at that place, and Avhenever he arrives in any police district he must forthwith notify his place of residence to the chief officer of police of such last-mentioned district. Notification is made as stated above. He is excused from making the notifications required to be made in (a) and (b) if he can prove that being on a journey he tarried no longer in the place in respect of which he is charged with failing to notify his place of residence than was reasonably necessary, or that otherwise he did his best to act in conformity with the law. (c.) - Once in each month he must — if a male — report himself at such time, and personally, or by letter, as may be prescribed by the chief officer of police of the district, either to such chief officer himself, or to such person as he may direct. (d.) If he fails to do any one of these things within the proper time he is liable to be imprisoned, with hard labour, for any period not exceeding one year. Article 12. punishment of whipping. (ft.) ^ When no sjiecial jjrovisions are made as to the punishment of whipping, the number of strokes and the instrument to be used are left to the discretion of the person by whom the whipping is inflicted. (b) * When the punishment of Avhipping is awarded by 1 54 & 55 Vict. c. 69, s. 8, which is enacted in substitution of a part of 34 & 35 Vict. c. 112, s. 8. - 34 & 35 Vict. c. 112, s. 8. ^ Such was the practice when whipping was inflicted as a common law punishment, and such must still be the practice where no statutory direc- tions are given as to the mode of inflicting it. The onlj' limitation is con- tained in the declaration of the Bill of- Rights against " illegal and cruel punishments" (1 W. & M. sess. 2, c. 2, preamble). 4 25 Vict. c. 18, ss. 1, 2. THE CRIMINAL LAW order of one or more justices, in exercise of their power of summary conviction, the order awarding such punishment must specify the number of strokes to be inflicted, and the instrument to be used in the infliction of them. In the case of an offender whose age does not exceed fourteen ^"ears the number of strokes inflicted must not exceed twelve, and the instrument used must be a birch rod. No such offender may be whipped more than once for the same offence. (c.) ^ When the punishment of whipping is awarded by order of a Court for an indictable offence, under the Larceny Act, 18G1, the Malicious Injuries to Property Act, 1861, oi- the Offences against the Person Act, 1861, the Court may sentence the offender to be once privately whipped, and the number of strokes and the instrument with which they are to be inflicted must be specified by the Court in the sentence (d.) -When the punishment of whipping is awarded under the Act for the further security of Her Majesty's subjects from personal violence (26 & 27 Vict. c. 44), the Court may direct that the offender — if a male — in addition to the other punishment awarded to him, be once, twice, or thrice privately whipped, subject to the following provisions : — (i.) In the case of an offender whose age does not exceed sixteen years, the number of strokes at each such whipping must not exceed twenty-five, and the instrument used must l^e a birch rod. (ii.) In the case of any other male offender, the number of strokes must not exceed fifty at each such whipping. (iii.) In each case the Court in its sentence must specify the number of strokes to be inflicted and the instrument to be used. (iv.) Such whipping must in no case take place after the expiration of six months from the passing of the sentence. (v.) Every such whipping to bo inflicted on a person sentenced to penal servitude must be inflicted on him before he is removed to a convict prison, with a view to undergoing his sentence of penal servitude. > 24 & 25 Vict. c. 96, s. 1 19 ; c. 97, s. 75 ; c. 100, s. 70. ^ 26 & 27 Vict. c. 44, s. 1. 10 A DIGEST OF Article 13. FINE. ^ The punishment of fining consists in ordering the offender to pay to Her Majesty a sum of money expressed in the sentence. When no particular sum is limited as the maximum amount of a tine, the fine imposed must not bo excessive. Article 14. PUTTING under RECOGNIZANCES. The punishment of putting under recognizances consists in«ordering the offender to promise to pay to Her Majesty a sum of money expressed in the recognizance if he breaks the condition thereof, and to find other persons to make a similar promise on his behalf and as his sureties. In cases in which the Court or magistrate is authorized to require such securities, they may direct the offender to be imprisoned till he enters into the recognizance and finds the sureties. 1 1 W. & M. sess. 2, c. 2. See also Magna Charta, ' Salvo conteneineiito SITO. ' THE CRIMINAL LAW 11 CHAPTER II ^classification of crimes and general provisions as to their punishment Article 15. treason, felony, and misdemeanor. Every crime is either treason, felony, or misdemeanor. Every crime which amounts to treason or felony is so denominated in the definitions of crimes hereinafter con- tained. All crimes not so denominated are misdemeanors. Article 16. consequences of a conviction of treason or felony. The consequences of a conviction of treason or felony are as follows : — (a.) ^ Every person convicted of treason or felony may be condemned to the payment of the whole or any part of the costs and expenses incun-ed in and about his prosecution and conviction. (h.) ^ Immediately upon the conviction of any person for felony, the Court before which he is convicted may award any sum of money not exceeding £100, by way of satisfac- tion or compensation for any loss of property suffered by any person through or by means of such felony, upon the application of such person. Such sum is to be deemed to be a judgment debt due to the person entitled to receive the same from the person so convicted. 1 2 Hist. Cr. Law, ch. xx. pp. 192-6. 2 33 & 34 Vict. c. 23, s. 3. The section contains various subsidiaiy pro- visions as to costs, which do not bear on the punishment of the offence. See 1 Hist. Cr. Law, 487-9. 3 33 & 34 Vict. c. 23, s. 4. 12 A DIGEST OF (c.) ^ Every person sentenced to death, to penal servitude. or to any term of imprisonment with hard labonr, or exceeding twelve months : (i.) Becomes incapable of holding any military or naval office, or any civil office under the Crown, or other public employment, or any ecclesiastical benefice, or of being elected, or sitting- or votino- as a member of either House of Parliament, or of exercising any right of suffrage or other parliamentary or municipal franchise Avhatever in England, Wales, or Ireland. Such incapacity continues until such person has suffered the punishment to which he has been sentenced, or such other punishment as by competent authority may be substi- tuted for the same, or until he receives a free pardon from Her Majesty. (ii.) If any such person holds, at the time of his convic- tion, any military or naval office, or any civil office under the Crown, or other public employment, or any ecclesiastical benefice, or any place, office, or emolument in any university, college, or other corporation, or is entitled to any pension or superannuation allowance, payable by the ijublic or out of any public fund ; such office, benefice, employment, or place, forthwith becomes vacant, and such pension or super- annuation alloAvance, or emolument, forthwith determines and ceases to be payable, unless such person receives a free j)ardon from Her Majest}' within two months after such conviction, or - before the filling up of such office, benefice, employment, or place, if given at a later period. {(I.) ^ Every person sentenced to death, or to penal ser- vitude, or against whom sentence of death is recorded, is disabled from suing any person, from alienating or charging any property, and from making any contract. (e.) '^ The custody and management of the property of any such person may be committed to an administrator, 1 33 & 34 Vict. c. 23, s. 2. ^ I suppose this means if the parilou is given more than two months aftei' the conviction. 3 33 & 34 Vict. e. 23, s. 8. ^ See ss. 9-29 inclusive. THE CRIMINAL LAW 13 or interim curator, appointed in the manner and in- vested with the powers described in the statute, 08 & 34 Vict. c. 23. (/.) 1 Any person subject to the provisions of clauses {d.) or (('.) ceases to be affected by them when he dies, or is made bankrupt, or has suffered any punishment to which sentence of death has been commuted, or has undergone the full term of penal servitude to which he was sentenced, or such other punishment as may have been substituted for it by lawful authority, or receives Her Majesty's pardon. Article 17. recording sentence of death. - When any person is convicted of any felony, except murder, punishable with death, the Court may, if it thinks lit, instead of pronouncing judgment of death on such offender, order the same to be entered of record, and a record of every judgment so entered has the same effect as if the judgment had been duly pronounced and the offender reprieved by the Court. Article 18. punishment for felony if no express punishment pro- vided — felonies under the consolidation acts. ^ Every person convicted of any felony for which no punishment is specially provided by the law in force for the time being, is liable upon conviction thereof to be sentenced to penal servitude for any period not exceeding seven years. ' .33 & 34 Vict. c. 23, s. 7. - 4 Geo. 4, c. 48, ss. 1,2 (very much aLridgeJ). Bj- (i & 7 Will. 4, c. 30, the same power was given to the Court in cases of murder (A', v. JIof/e used for food. This is quite difl'erent from any of the following- cases — (1) The two men on a plank. Here the successful man does no * direct Ixjdily harm to the other. He leaves him the chance of getting another plank. (2) Several men are roped together on the Alps. They slip, and the weight of the whole part}' is thrown on one, who cuts the rope in order to save himself. Here the question is not whether some shall die, but whether one shall live. (.S) The choice of evils. The captain of a ship runs down a boat, as the only means of avoiding ship- wreck. A surgeon kills a child in the act of l)irth, as the only way to save the mother. A Ijoat being too full of passengers to float, some ai'e thrown overboard. Such cases are best decided as they arise. .See on 26 A DIGEST OF Ulnstrations. (1.) ^ A, the Governor of Madras, acts towards his council in an arbitrary and illegal manner. The council depose and put Iiina under arrest, and assume the powers of government them- selves. This is not an offence if the acts done by the council were the only means by which irreparable mischief to the establishment at Madras could be avoided. (2.) - A and B, swimming in the sea after a shipwreck, get hold of a plank not large enough to support both ; A pushes off B, who is drowned. This is not a crime. Article 34. ignorance of law. ^ The fact that an offender is ignorant of the law is in no case an excuse for his offence, but it may be relevant to the question whether an act which would be a crime if accom- panied by a certain intention or other state of mind, and not otherwise, was in fact accompanied by that intention or state of mind or not. * In intei-preting a statute wdiich makes unlawful a con- tinuous act which till the statute passed Avas not unlawful, it is to be presumed that the legislature intended to allow a reasonable time for the discontinuance of the act so made unlawful, and the ignorance of the agent that the statute the whole subject mj History of Criminal Law, ii. 108-15. In the United States {Commonicealth v. Holm-!!, 1 Wall. Jr. 1, quoted at length in Wharton on Criminal Law, s. 511 (n.)) shipwrecked sailors and passengers escaping in a boat wliich could not hold all, the sailors threw some of the passengers overboaid. The Court held that the passengers ought to have been preferred to the sailors, unless the presence of all the sailors was required for the common safety, but " iinder any circumstances it was held the proper method of determining who was to be the first victim out of the particular class was by ballot." I doubt whether an English Court would take this view. It would he odd to say that the two men on the raft were bound to toss up as to which should go. 1 i?. V. Sfratton d; Others, 1780, 21 St. Tr. 10+5; see Lord Mansfield's jiidgment, pp. 1222-6. - Bacon's Maxims, Xo. 5. 3 Draft Code, 24. * See Illustration (3). THE CRIMIXAL LAW 27 had been passed, is a fact relevant to the question whether his discontinuance of it was within such reasonable time or not. Illustrations. (1.) ^ A, a foreigner unacquainted with the law of England, kills B in a duel in England. A's act is murder although he may have supposed it to be lawful. (2.) " A, a poacher, sets wires for game, which are taken by B, a gamekeeper, under the authority of an Act of Parliament (5 Anne, c. 14, s. 4), of the existence of which A is ignorant. A forcibly takes the wires from B, and is tried for robbery. His ignorance of the Act is relevant to the question whether he took the wires under a claim of right. (3.) ^ A is in command of a ship on a voyage, which during its continuance is rendered unlawful by the passing of the kid- napping Act, 1872 (35 it 36 Yict. c. 19), but A was not aware that the Act had been passed till a considerable time afterwards, and he continued his voyage in ignorance of the Act. The fact of A's ignorance is relevant to the question whether the par- ticular voyage in which A was engaged was one to which the Act was intended by the legislature to apply. Article 35. ignorance of fact. An alleged offender is in general deemed to have acted under that state of facts which he in good faith and on reasonable grounds believed to exist when he did the act alleged to be an offence. When an offence is so defined by statute that the act of the offender is not a crime unless some independent fact co-exists with it, the Court must decide whether it was 1 Exj}(irtt Barrontt, 1852, 1 E. & B. I. 2 R. V. Bale, 1828, .3 C. & P. 409. In B. v. Beed, 1842, Car. & Mar. 306, Coleridge, J., said : "Ignorance of the law cannot exciise any person, but at the same time when tlie question is witli wliat intent a person takes, we cannot help looking into their state of mind, as if a person takes what he believes to be his own it is impossible to say he is guilty of felon J'." 3 Bnrm v. Xoivell, 1880, 5 Q. B. D. 444. 28 A DIGEST OF the intention of the legislature that the person doing the forbidden act should do it at his peril, or that his ignorance as to the existence of the independent fact, or his mistaken belief in good faith and on reasonable grounds that it did not exist, should excuse him. Voluntary or negligent ignorance of any such fact is no excuse for any such offence. In cases of the infliction of bodily harm or restraint for the purpose of arresting or retaking a person honestly and reasonably but erroneously supposed to be liable to be arrested or retaken, the person inflicting such harm or restraint is not justified by such belief unless the state of facts in the existence of which he erroneously believed would, if it had really existed, have made it his legal duty to act as he did, or would have been such as to make his conduct an act of defence of his person or habitation. Ilhistrations. (1.) ^ A being deserted by her husband is informed, and in good faith and on reasonable grounds believes, that he is dead. She marries again within seven years after the desertion. She is not guilty of bigamy. (2.) ■' A, under an insane delusion, kills B. If the delusion is such that its truth would justify him in doing so, his act is not a crime. The delusion would also be evidence that A did not know he was doing wrong even if its truth would not justify the act. (3.) ^ A, making a thrust with a sword at a place where, upon reasonable grounds, he supposes a burglar to be, kills a person who is not a burglar. A is in the same situation as if he had killed a burglar. (4.) ■^ A abducts B, a girl under fifteen years of age, from her father's house, believing in good faith and on reasonable grounds that B is eighteen years of age. A commits the ofience of abduction, although if B had lieen eighteen years of age she would not have been within the statute. 1 R. V. Tolson, 1889, 23 Q. B. D. 168. - MacNaghten's Case, 1843, 10 C. & F. 200. 3 Levet'.^ Case, 1640, 1 Hale, 474. ■» n. V. Prinre, 1875, 2 C. C. R. 154. THE CRIMINAL LAW 29 (5.) ^ A, in the last illustration, abducts B, in ignorance of her age, and without making any inquiry about it. A commits the offence of abduction. (6.) - A received into her house, not being a registered lunatic asylum, several persons to be medically treated, being persons who were in fact lunatics though A honestly believed on reason- able grounds that they were not lunatics but sufferers under other disorders. Notwithstanding such belief A committed an offence against 8 & 9 Vict. c. 100, s. 44. (7.) ^ A, a constable, honestly and on reasonable grounds, but wrongly, believing B to have committed murder and not being able otherwise to arrest him shoots at him and kills him. A is justified. If A had been a private person his act would have been manslaughter at least. (8.) (Submitted.) B, pretending by way of a practical joke to be a robber, presents an empty pistol at A and demands his money. A, believing that B really is a robber, kills B. A is justified. . (9.) (Submitted.) A breaks into B';i house in Dundalk, at 5.45 A.M., local mean time, supposing that it is past six, but forgetting that A's watch is set to London time. A commits burglary. ^ R. V. Prince, Ibid. See judgment of Brett, J., p. 169, and see p. 174. li. V. Tolson, sup. seems to be distinguishable fi'om i?. v. Prince only on the ground that abducting a girl is morally wrong and marrying a woman is not. - P. X. Bishop, 1880, 5 Q. B. D. 259. ■^ 2 Hale, P. C. 82, 85, see also Thompson v. Farrtr, 1882, 9 Q. B. D. 372. 30 A DIGEST OF CHAPTER IV. . 1 pah ties to the commission of crimes— pbincipal and accessory. Article 3G. principals ix first degree. ^ Whoever actually commits, or takes part in the actual commission of a crime, is a jDrincipal in the first degree, whether he is on the sjoot when the crime is committed or not ; and if a crime is committed partly in one place and partly in another, every one who commits any part of it at any place is a principal in the first degree. Ilhostrations. (1.) ^ A lays poison for B, which B takes in A's absence. A is a principal in the first degree. (2.) * A steals goods from a ship, and lays them in a place at some distance, whence B, by previous concert, carries them away for sale. A and B are both principals in the first degree. Article 37. innocent agent. Whoever commits a crime by an innocent agent is a principal in the first degree. 1 2 Hist. Cr. Law, cli. xxii. pp. 221-241 ; Draft Code, ss. 71-74. 2 Foster, 347-50, gives the history of the distinction between principals in the first and second degree. See also Hale, ch. xxii. 1 P. C. 233 ; Ibid. ch. xxxiv. 435, and ch. Ibid. 612. 3 Foster, 349, saj's simply that A is " a principal" without mentioning the degree, but as no one has " aided" or " abetted," it would seem that he must be a principal in the first degree. * R. V. KeUi/, 1S47, 2 C. & K. 37'J. THE CRIMINAL LAW ' 31 Illustrations. (1) ^ A tells B, a child under seven, to bring- him money l^elonging to C. B does so. A is a principal in the first degree. (2.) - A, knowing a note to be forged, asks B, who does not know it to be forged, to get it changed for him. B does so, and gives A the money. A is a principal in the first degree. (3.) ^ B, in the last illustration, knows that the note is forged. A is an accessory before the fact. Article 38. principals in the second degree. * Whoever aids or abets the actual commission of a crime, either at the place where it is committed, or elsewhere, is a principal in the second degree in that crime. ^ Mere presence on the occasion when a crime is com- mitted does not make a person a principal in the second degree, even if he neither makes any effort to jjrevent the offence or to cause the offender to be apprehended, but such presence may be evidence for the consideration of the jury of an active participation in the offence. When the existence of a particular intent forms part of the definition of an offence, a person charged with aiding or abetting the commission of the offence must be shewn to have kno\\Ti of the existence of the intent on the part of the person so aided. Ulustrations. (1.) ^ A, B, and C go out with a common design to rob. A commits the robbery ; B stands by ready to help ; C is stationed 1 Deduced from i?. v. Manhy, 1844, 1 Cox, C. C. 104. 2 R. V. Palmer, 1804, 1 Russ. Cr. 160, 1 Xew Rep. 96. 3 B. V. Soared, 1802, R. & R. 25. * See cases in 1 Russ. Cr. 1.56-157. i?. v. Kelh/, 1820, R. & R. 421, perhaps marks the limit Ijetween a principal in the second degree and an accessory. In that case B stole horses and brought them to A, who was waiting half a mile off; A and B then rode away on them. It was held that A was an accessory before the fact. The distinction is now of no importance. ■' It. V. Co)ie!/ ami Others, 1882, 8 Q. B. D. 534. See especially the judgment of Cave, .J., 536-43. fi Foster, 350. JU JA:i/'>< Case, 1830, I Lew. 194. 3 R. V. Salmon, 1880", 6 Q. B. D. 79. ■* I Hale, P. C. 615 ; 2 Hawk. P. C. 442 ; 1 Russ. Cr. 16.5-171. As to principals and accessories in forgery, see 2 Riiss. Cr. 689-694. In the following Articles I use the word "instigate" as equivalent to "counsel, ])rocure, or command." Draft Code, s. 71. ' //. V. Cooper, 1833, o C. & P. 535. •i 11 & 12 Win. c. 7, s. 9. D 34 A DIGEST OF Illustrations. (1.) ^ A supplies B with corrosive suljlimate, knowing that B means to use it to procure her own abortion, but being unwilhng that she should take the poison, and giving it to her because she threatened to kill herself if he did not. B does so use it and dies. Even if B is guilty of murdering herself, A is not an accessory before the fact to such murder. (2.) ^ B and C agree to fight a prize fight for a sum of money ; A, knowing of their intention, acts as stakeholder. B and C fight, and C is killed. A is not present at the fight and has no concern with it except being stakeholder. Even if in such a case there can be an accessory before the fact, A is not accessory before the fact to the manslaughter ofC. Article 41. where crime suggested is committed ix a different way. ^ When a person instigates another to commit a crime, and the person so instigated commits the crime which he was instigated to commit, but in a different way from that in which he was instigated to commit it, the instigator is an accessory before the fact to the crime. Ilhistration. A advises B to murder C by shooting, B murders C by stabbing, A is accessory before the fact to the murder of C. Article 42. where crime* committed is probable consequence of crime suggested. ^ If a person instigates another to commit a crime, and the person so instigated commits a crime different from the one 1 B. v. Fretwell, 1862, L. & C. 161. Contrast with this B. v. Bus-sell, 1832, 1 Moody, 356. 2 B. V. Taylor, 1875, 2 C. C. R. 147. 3 Foster, 369-70 ; Draft Code, s. 72. 4 Ibid. 370 ; Ibid. s. 72. THE CRIMINAL LAW 35 which he was instigated to commit, but likely to be caused by such instigation, the instigator is an accessory before the fact. Illustrations. (1.) ^ A describes C to B, tand instigates B to murder C. B murders D, whom he believes to be C, because D corresponds with A's description of C. A is accessory before the fact to the murder of D. (2.) ^ A instigates B to rol) C, B does so, C resists and B kiUs C. A is accessory before the fact to the murder of C. (3.) ^ A advises B to murder C (B's wife) by poison. B gives C a poisoned apple, which C gives to D (B's child). B pei-mits D to eat the apple, which it does, and dies of it. A is not accessory to the murder of D. Article 43. where instigation is countermanded. ^ If an accessory before the fact countermands the execution of the crime before it is executed, he ceases to be an acces- sory before the fact, if the principal had notice of the countermand before the execution of the crime, but not otherwise. Illustration. 3 A advises B to mui'der C, and afterwards, by letter, with- draws his advice. B does murder C. A is not an accessory before the fact if his letter reaches B before he murders C ; but he is if it arrives afterwards. 1 Foster, 370. 2 Saunders Ca-se, 1576, Plowd. 475; 1 Hale, P. C. 431, This decision is of higher autliority than Foster's dicta ; and marks the limit to which they extend, if it does not throw some doubt on tliem. 2 1 Hale, P. C. 618. In the case supposed the instigator would prob- ably have committed the offence of inciting to the commission of a crime (Art. 48), though he would not be an accessory before the fact. It may also be doubted whether this doctrine would extend to the case of a man who did liis best to countermand his advice, but foiled, as by an accident in the course of post, &c. D 2 36 A DIGEST OF Article 4-4-. instigation to co.almit a crime different from the one committed. ^ When a person instigates another to commit a crime, and the person so instigated commits a different crime, the instigator is not accessory before the fact to the crime so committed. lUustration. - A instigates B to murder C, B murders D, A is not acces- sory before the fact to the murder of D. Article 45. accessories and principals in second degree treated as principals in first degree. "^Accessories before the fact, principals in the second degree, and principals in the first degree in any felon}-, are each considered as having connnitted that felony, and each may be indicted, tried, convicted and punished as if he alone and independently had committed the felony ; although any other party to the crime may have been acquitted. Article 4(3. accessories after the fact. ■* Every one is an accessory after the fact to felony Avho knowing a felony to have been committed by another, 1 Cf. Draft Code, s. 72. 2 Foster, .369. 3 24 & 25 Vict. c. 94, s. 2, as explained by B. v. Hiujhe.-:, I860, Bell, C. C. 242. The section referred to applies only to cases in which a felony has been committed, and does not affect the common law offence of inciting to connnit a felony (Art. 4S). F. v. Gregory, 1867, 1 C. C. R. 77. 4 1 Russ. Cr. 171-174 ; 1 Hale, P. C. 018-20 ; 2 Hawk. P. C. Bk. II. c. 29 ; Draft Code, s. 73. THE CRIMINAL LAW 37 receives, comforts or assists him,^ in order to enable him to escape from punishment ; or rescues him from an arrest for the felony ; or having him in custody for the felony, intentionally and voluntarily suffers him to escape ; or opposes his apprehension, Provided that a married ^\'(Jman who receives, comforts, or relieves her husband knowing him to have committed a felony, does not thereby become an accessory after the feet. Article 47. punishment of accessories after the fact in general and under the consolidation acts. ^ Every accessory after the fact to any felony is guilty of a substantive felony for which he may be convicted, whether the principal felon has or has not been previously convicted, or is or is not amenable to justice, and for which he may be indicted either together with the principal felon or alone (except where it is otherwise specially enacted). Every such offender is liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, wath hard labour, and the Court may require the offender to enter into his own recognizance, and to find sureties (both or either) for keeping the peace, in addition to such imprisonment ; but no such person can be im- prisoned for not finding sureties for any period exceeding one year. ^ Every accessory after the fact to any felony punishable ^ As to the addition of these words, see 2 Hawk. P. C. Bk. II. c. 29, ss. 28-9. 2 24 & 25 Vict. c. 94, ss. 3, 4, as interpreted by R. v. Fallon, 1862, L. & C. 217. Each of the Consolidation Acts contains a section providing specificalh' that accessories before the fact, and principals in the second degree to felonies ])unisha])le thereby, sliall be liable to the same punish- ment as the principals. Tliese provisions would seem to be co-extensive in tlieir ojieration witli those of 24 & 2o Vict. c. 94, ss. 3, 4. .See the next note. ''• 24 & 25 Vict. c. 96, ss. 98-117 ; Ibid. c. 97, ss. 56-73 ; Ihid. c. 98, ss. 49-51 ; Ibid. c. 99, ss. 35-38 ; Ibid. c. 100, ss. 67-71. 38 A DIGEST OF under the Larceny Act, 1861 ; the Malicious Injuries to Property Act, 1861 ; the Forgery Act, 1861 ; the Coinage Offences Act, 1861 ; or the Offences against the Person Act, 1861 (except murder), is liable upon conviction to the punishments above mentioned. THE CRIMINAL LAW 39 CHAPTER V 1 DEGREES IX THE COMMISSION OF CRIME— IXCITEMEXT— COXSPIRA CY—A r TEMPTS Article 48. inxitement to commit a crime. 2 Every one who incites any person to commit any crime commits a misdemeanor, whether the crime is or is not committed. Article 49. conspiracy to com.aiit a crlme. ^ When two or more persons agree to commit any crime, they are guilty of the misdemeanor called conspiracy whether the crime is committed or not,^ and though in the circum- stances of the case it would be impossible to commit it. Article 50. definitiox of attempts. '" An attempt to commit a crime is an act done with intent j^ fly i/L, to commit that crime, and forming part of a series of acts ^/<^/*.> 2 ^^-^ which would constitute its actual commission if it were n(jt interrupted. 1 2 Hist. Cr. Law, cli. xxii. pp. 22 1-24: 1. ^ R. V. Higyim, 1801, 2 Ea. 5r22 ; R. v. Schqfield, 1784, Cald. 397 ; A'. V. Gregory, 1867, 1 C. C. 77. In R. v. Leddhujfon, 1839, 9 C. & P. 79, a man was charged with inciting a man to commit suicide, and Alderson, B., directed an acquittal, saying, " This is a case which by law we cannot try." The reasons for this direction are not given, and a note to the case does not make them clear. As to the case of R. v. Welliam, see Note II. 3 Mulrahy V. R., 1868, L. R. 3 H. L. at p. 317 ; R. v. Bnnn, 1872, 12 Cox, C. C. 316, and see cases collected in Roscoe, Cr. Ev. 401-404. * R. V. Whifrhnrrh, 1890, 24 Q. B. D. 420. ^ See cases referred to in Illustrations, and Draft Code, s. 74. 40 A DIGEST OF The point at which such a series of acts begins cannot be defined ; but dejiends upon tlie circumstances of each par- ticular case. An act done with intent to commit a crime, the commission of which in the manner proposed was, in fact, impossible, is an attempt to commit that crime. The offence of attempting to commit a crime ma}' be com- mitted in cases in which the offender vokuitarily desists from the actual commission of the crime itself HI list rat urns. (1.) ^ A writes and sends to B a letter, inciting B to commit a felony. B does not read the letter. A has attempted to incite B to commit a felony. (2.) ^ A procures dies fur the pm-pose of coining l)ad mone}'. A has attempted to coin bad money. (3.) ^ B is a contractor for the suppl}^ of meat to a regiment. A is B's servant, and his duty is to return the surplus meat to B, after weighing out a certain allowance to each mess. By using a short weight, A sets aside, as surplus, sixty pounds instead of fifteen pounds, intending to steal the forty-five pounds, and return the fifteen pounds to B. A's fraud is discovered before he carries the meat away. A attempts to steal the forty- five pounds as soon as he sets aside the sixty pounds. (4.) ^ A, by false pretences as to the number of loaves he had delivered under a contract, obtains cx'edit in account for the loaves, and would have been paid for them but for the discovery of the fraud. This is an attempt to obtain money Ijy false pretences, as it was the last step deiDending on the defendant towards obtaining it. (5.) ^ A, after threatening to shoot B, points a pistol at her, his hands are seized before he can fire, but his finger and thuml:) are seen fumbling with the trigger. A has attempted to shoot B. (6.) ^ A procures indecent prints with intent to publish them. A has attempted to publish indecent prints. (Semhle.) 1 F. v. Ransford, 1874, 31 L. T. (N.S.) 488. 2 Bohert-ss Ca-se, 1855, D. & P., 539. •^ CAee.se7Ma?i'-s Case, 1862, L. & C. , 140. 4 R. V. Eaglet on, 1855, D. & P., 515. s R. v. Dnchrorth, 1892, 2 Q. B. 83. 6 Dvqdate v. R., 1853, 1 E. & B. 435 ; R. v. Dvqdah, D. & P. G4. THE CHIMIN AL LAW 41 (7.) ^ A goes to Birmingham to bu}^ dies to make l)ad money. A has not attempted to make bad money. (8.) ^ A having in his possession indecent prints, forms an intent to publish them. A has not attempted to publish indecent prints. (9.) '^ A mistaking a log of wood for B, and intending to murder B, strikes the log of wood with an axe. A has not attempted to murder B. (10.) * A puts his hand into B's pocket with intent to steal whatever he finds there ; the pocket is empty. A has attempted to steal from B's person. (11.) ^ A kneels down in front of a stack of corn, and lights a lucifer match, intending to set the stack on fire ; but olisei'ving that he is watched IjIows it out. A has attempted to set fire to the stack. Article 51. attempt — misdemeanor. Every attempt to commit an offence, whether treason, felony, or misdemeanor,*' is a misdeameanor, unless it is otherwise specially provided for. 1 Per Jervis, C.J., in Rohert.y a few persons, using for treasonable purposes explosives calculated to do great damage. I held the same at Liverpool in the summer of 1883, in It. v. fMasy, 18S3, 15 Cox, .S34. 44 A DIGEST OF Article 55. high treason by adherixg to the queex's enemies. ^ Every one commits high treason who, either in the reahn or without it, actively assists a public enemy at war with the Queen. Rebels may be ^Jublic enemies within the meaning of this Article. Article 56. adherence to a de facto king not treason. " Xo person who attends upon the king and sovereign lord of this land for the time being, in his person, and does him true and faithful service of allegiance in the same, or is in other places by his commandment in his wars within this land or without, is for any such act guilty of treason [even if the king dc facto should not be king dc jure]. Article 57. KILLING the king's WIFE OR SON. ^ Every one commits high treason who forms and displays by any overt act an intention (a.) to kill the wife of a king regnant ; or, (b.) to kill that son of a king or queen regnant who is for the time being heir-apparent to the king or queen. Article 58. when words are treason. ■* The speaking of words expressive of the intentions above mentioned is not an overt act within the meaning of Articles 52, 53, and 57. 1 25 Edw. 3, St. 5, c. 2, as explained by Hale, 1 P. C. 159-69. An officer betraying his post is a traitor at common law, though such offences are usually dealt with under martial law ; see 1 Hale, 168. I suppose a deserter in the field who joins tlie enemy commits high treason as well as a militarj" oifence. Draft Code, s. 75. 2 II Hen. 7, c. I ; and see 6th Rep. C. L. C. p. 23. 3 25 Edw. 3, St. 15, c. 2, as explained in I Hale, P. C. 124-129. Draft Code, s. 75. ^ Foster, 200-207. THE CRIMINAL LAW 45 The writing of such Avords is such an overt act. The speaking or writing of words accompanied by or explanatory of conduct connected Avith the execution of such intentions is such an act. The speaking of words of advice, consultation, or command, or otherwise connected with the execution of such intentions, is such an act. Article 59. violating the kings wife, etc. ^ Every one commits high treason who violates (whether by her own consent or not) the wufe of a king regnant ; or that daughter of the king or queen regnant Avho at the time is his or her eldest daughter, if she never has been married, and (perhaps) if she is a Avidow, and (probably) if her father or mother is alive ; or the Avife of that son of a king or queen regnant Avho for the time being is heir-apparent of such king or queen. Article 60. killing the chancellor, etc. - Every one commits high treason Avho slays the chancellor, or the treasurer, or the king's justices of the one bench or 1 25 Echv. .3, St. 5, c. 2, as explained by Hale, I P. C. 128. Draft Code, s. 75. - It may l)e permissible to suggest (as mere matter of curiosit}') a doubt whether this would now apply to all the jutlges of the .Supreme Court or only to those who are not members of the Cliancery Division (25 Edw. 3, St. 5, c. 2). It is enacted by 1.3 Eliz. c. 2, that every one commits high treason Avho uses, or puts in use, in any place within this realm, or in any of the Queen's dominion, any bull, Avriting, instrument of absolution or reconciliation oljtained from tlie Bisliop of Rome to those wlio will be con- tented to forsake the due obedience to the Queen and to yield antl subject themselves to the authority of the Bishop of Rome, or who willingly re- ceiA'e absolution or reconciliation under any such insti'ument This enact- ment is printed in the Revised Statutes, but by 9 & 10 Vict. c. 59 it is repealed so far only as the same imposes the penalties or punishments therein mentioned. Whether the effect of this is to make the using of such l)ulls a treason which cannot be punished, I do not know, nor does it 46 A DIGEST OF the other, justices in eyre or justice of assize, and all other justices assigned to hear and determine being in their places doing their offices. Article 61. punishment for treason. ^ Every one who is convicted of high treason must be sentenced to be hanged by the neck until he is dead ; but Her Majesty may (if the offender is a man) direct, by a warrant signed by one of her principal Secretaries of State, that instead thereof such offender's head shall be severed from his body whilst alive. Article 62. ALL principals IN TREASON. ^ Every person who in the case of felony would be an accessory before or after the fact is in the case of high treason a principal traitor, ^but a person "who knowingly comforts or receives a traitor so far partakes of the nature of an accessory that he cannot be tried till the principal is convicted. much matter. As the 9 & 10 Vict. c. 59 further provides that the repeal of the penalt}- is not to make the forbidden acts lawful, it is impossible to be quite sure that doing them would not be a statutory misdemeanor. As to which see the 6th Rep. C. L. C. pp. 35-41. I know not why 13 Eliz. c. 2, was not repealed simply. ^ For common law judgments see Chitty, Crim. Law, 702. It was modified bj' 30 Geo. 3, c. 48, as to women (who before that Act were liable to be burnt alive for treason), as to men bj- 54 Geo. 3, c. 146, and 33 & 34 Vict. c. 23, s. 31. The odd exception made in the parenthesis arises thus : the Act 30 Geo. 3, c. 48, applies onl}' to women, and the 54 Geo. 3, c. 146, only to men. The proviso as to beheading occurs in the second only. The Act of 1870 repeals parts of the Acts of 1790 and 1814. It would seem, however, that the power exists at common law. See Foster, 269-70. The Act (31 Vict. c. 24) for executing sentence of death within gaols does not apply to cases of treason. Indeed ss. 2 and 16 together appear to exclude its operation in such cases. An execution for treason would, therefore, it would seem, have to be public. Sir E. Coke's Scriptural reasons for the punishment of treason may be seen in 3 Inst. 211. Cf. Draft Code, s. 75. 2 Foster, 343, and see 341-6. 3 1 Hale, P. C. 238 ; Foster, 345-6 ; and see 2 Hist. Cr. Law. THE CRIMINAL LAW 47 Article G'i TREASONABLE FELONIES. ^ Every one is guilty of felony,, and is liable upon conviction thereof to penal servitude for life who ^ forms any of the intentions hereinafter mentioned, and expresses such inten- tion either by any overt act or by publishing an}' printing or writing ; ^ that is to say, (a.) an intention to depose the Queen, her heirs or suc- cessors, from the style, honour, and ro}'al name of the Imperial CroAvn of the United Kingdom or of any other of her Majesty's dominions or countries ; or (b.) an intention to levy war against Her Majesty, Her heirs or successors, within any part of the United Kingdom in order by force or constraint to compel her to change her measures or counsels, or in order to put any force or con- straint upon, or in order to intimidate or overawe, both houses or either house of Parliament ; or (c.) an intention to move or stir any foreigner with force to invade the United Kingdom or any other of Her Majesty's dominions or countries under the obeisance of Her Majesty, her heirs and successors. ^A conspiracy to effect any of the said intentions is an overt act within the meaning of this Article. Article 64. inciting to mutiny. ^ Ever}' one commits felony, and is liable upon conviction thereof to penal servitude for life who maliciously and advisedly endeavours 1 11 Vict. c. 12, preamble and s. 3 (ledrawii) ; Draft Code, s. 79. Ac- cessories after the fact are liable to imprisonment with hard labour for two years, s. 8. ^ " Shall . . . compass, imagine, invent, devise, or intend." ■^ The words "or by open advised speaking" occurred in the Act as originally passed, but by s. 4 their effect was to last for two years only ; they and s. 4 were both repealed by the Statute Law Revision Act, 1891. * MuUahy v. R., 1868, L. R. 3 H. L. 306. ^ 37 Geo. 3, c. 70, s. 1. As to the punishment, see 7 Will. 4 & I Vict. c. 91, s. 2, and 55 & 56 Vict. c. 19 ; Draft Code, s. 82. 48 A DIGEST OF («.) to seduce any person serving in Her Majesty's forces by sea or land from his duty and allegiance to her Majesty ; or (b.) to incite or stir up any such person to commit any act of mutiny, or to make or endeavour to make any mutinous assembly, or to commit any traitorous or mutinous practice Avhatever. Article 65. disclosure of official information. ^ Every one is guilty of a misdemeanor and is liable to imprisonment for a year with hard labour or to a fine or to both imprisonment and a fine, who does any of the acts hereinafter specified, that is to say : (1.) (a.) who for the purpose of wrongfully obtaining information — (i.) enters or is in any part of a place belonging to Her Majesty being a fortress, arsenal, factory, dockyard, camp, ship, office, or other like place in which part he is not entitled to be ; or (ii.) when lawfully or unlawfully in any such place as aforesaid either obtains any document, sketch, plan, model, or knowledge of any thing which he is not entitled to obtain, or - takes without lawful authority any sketch or plan ; or (iii.) when outside any fortress, arsenal, factory, dockyard or camp, belonging to Her Majesty,^ takes or attempts to take without authority given by or on behalf of Her Majesty any sketch or plan of that fortress, etc. : or (b.) who knowingly having possession of, or control over, any such document, sketch, plan, model, or knowledge, as has been obtained or taken by means of any act which con- stitutes an offence under this Article or the two following- Articles, at any time wilfully and without lawful authority communicates or attempts to communicate the same to any person to whom the same ought not, in the interests of the State, to be communicated at that time ; or 1 52 & 53 Vict. c. 52, s. 1. 2 This appears to be synonymous with "makes." THE CRIMINAL LAW 49 (c.) who after having been intrusted in confidence by some officer under Her Majesty with any document, sketch, plan, model or information relating to any such place as afore- said, or to the naval or military affairs of Her Majesty, wilfully and in breach of such confidence communicates the same when in the interest of the State it ought not to be communicated ; or (2.) who having possession of any document, sketch, plan, model, or information relating to any fortress, arsenal, factory, dockyard, camp, ship, office, or other like place belonging to Her Majesty, or to the naval or military affairs of Her Majesty, in whatever manner the same has been obtained or taken, at any time wilfully communicates the same to any person to whom he knows the same ought not, in the interest of the State, to be communicated at that time. (8.) Every one is guilty of a felony and is liable to penal servitude for life who commits any offence previously mentioned in this Article ; ^ if he intended to communicate to a foreign state any information, document, sketch, plan, model, or knowledge obtained or taken by him, or intrusted to him as aforesaid ; or if he communicates the same to any agent of a foreign state. Article 66. breach of official trust." ^ Any person guilty of a breach of official trust as herein • after defined 1 " Any act declared bj' this section to be a misdemeanor " are the Avords of the Act ; but qua.ere whether this applies to (2) which is only made an offence by reference to (1). - The Official Secrets Act 1889, by which the offences mentioned in Articles 65, 66, 67 are constituted is so drafted as to be very difficult to understand. Section 1 subs. (1) creates about eighty different offences, all of which in almost evei'y conceivable case are made offences over again with the same penalties attached to them by subs. (2). Subs. 3 makes all of them felonies if a certain condition is proved which is almost certain never to be really absent. Section 2 makes nearly all the same offences, and hardly any others separate substantive offences if committed by certain persons, and attaches to them the same penalties as are provided by section 1 when they are committed l)y anybody else. '■' 52 & 53 Yict. c. 52, s. 2. E 50 A DIGEST OF (a.) if the communication is made or attempted to be made to a foreign state, is gnilty of felony and liable to penal servitude for life ; (b.) in other cases is guilty of misdemeanor and is liable to imprisonment with or without hard labour for not exceeding one year, or to a fine or both. A person is guilty of a breach of official trust who, by means of his holding or having held an office under Her Majesty, has lawfully or unlawfully either obtained jaossession of or control over, any document, sketch, plan, or model, or acquired any information, and at any time corruptly or contrary to his official duty communicates or attempts to communicate that document, sketch, plan, model, or in- formation to any person to whom the same ought not in the interest of the State, or otherwise in the public interest to be communicated at that time. This article applies to a person holding a contract wdtli any department of the Government or with the holder of any office under Her Majesty as such holder, where such contract involves an obligation of secrecy, and to any person employed by any person or body of persons holding such a contract, w^ho is under a like obligation of secrecy, as if the person holding the contract and the person so employed were respectively holders of an office under Her Majesty. Article 67. incitement to disclosure of official information and breach of official trust. ^ Any person who incites or counsels, or attempts to procure, another person to commit an offence under Acts 65, 66, is guilty of a misdemeanor, and liable to the same punishment as if he had committed the offence. 1 52 & 53 Vict. c. 52, s. .3. THE CRIMINAL LAW 51 Article G8. misapplication of the mark of a public department. ^ Every person is guilty of a misdemeanor and is liable to imprisonment with hard labour for two years, who without lawful authority, proof of which lies on the party accused, applies any of the marks described in the first Schedule to the Public Stores Act, 1875, in or on any stores therein described. Article 69. assaults on the queen. ' Every one who does any of the acts hereinafter specified is guilty of a high misdemeanor, and is liable upon conviction thereof to be sentenced to seven years penal servitude, and during the period of such imprisonment to be jjublicly or privately whipped as often (not exceeding thrice) and in such manner as tlie Court directs ; that is to say, (a.) Whoever wilfully and with intent to injure the person of the Queen or to alarm Her Majesty, or to break the public peace, or so as to endanger the public peace, — (i.) points, aims, or presents at or near the person of the Queen any ^firearm, loaded or not, or any other kind of arm ; or (ii.) discharges at or near the person of the Queen any loaded arms ; or (iii.) discharges or causes to be discharged any explosive material near the person of the Queen ; or (iv.) strikes, or strikes at, the person of the Queen in •* any manner whatever ; or 1 38 & .39 Vict. c. 25, s. 4. - 5 & 6 Vict. c. 51, ss. 1, 2 (redrawn). I have omitted a few manifestly superfluous words. Draft Code s. 80. •* " Any gun, pistol, or any other description of firearms, or of other arms whatsoever." * " With any oflensive weapon or in any other — ." E 2 52 A DIGEST OF (v.) throws anything at or upon the person of the Queen ; or (vi.) attempts to do any of the things specified in (ii.) (iii.), (iv.), or (v.): — (&.) Whoever produces or has near the person of the Queen any ^arm or destructive or dangerous thing with intent to use the same to injure the person of the Queen or to alarm Her Majesty. Article 70. contempts against the queen. - Every one commits a misdemeanor who is guilty of any contempt against the person of Her Majesty, or her royal dignity, by means of any contumelious, insulting, or dis- paraging words, acts, or gestures. Article 71. solemnising or assisting at marriage of a member of the royal family. ^ Every person commits a misdemeanor who knowingly or wilfully presumes to solemnize, or to assist, or to be present at the celebration of any marriage of any descendant of the body of King George the Second, male or female (other than the issue of princesses married into foreign 1 " Any gun, pistol, or anj' other description of firearms, or of other arms whatsoever." 2 I have taken the words of the 7th Rep. C. L. C. p. 12'2, founded on Hawkins, P. C. bk. i. ch. xxiii. , wliich contains mucli olisolete and even more indefinite ami undefinable matter. See, too, 6th Rep. C. L. C. p. 32, and note. Hawkins treats contempts against the judges of the King's Courts under this head. Contempt of Court seems to me hardly to be a branch of the criminal law. ^ 12 Geo. 3, c. 11. The punishment is pra?munire, as explained by Coke, 1 Inst. 130 a ; see 7th Rep. C. L. C, p. 37. THE CRIMINAL LAW 53 families), or at his or her making any matrimonial contract without the consent specified in 12 Geo. 3, c. 11. ^ Every person committing such a misdemeanor is put out of the Queen's protection. His lands, tenements, goods, and chattels are forfeited to the Queen, and he is to be im- prisoned for life (perhaps, at the Queen's pleasure). 1 .3 Inst. 126 ; 1 Russ. Cr. 900. 54 A DIGEST OF CHAPTER VII AFFBAYS, UXLAWFUL ASSEMBLIES;, BOUTS, BIOTS, TUMUL- TUOUS PETITIOXIXG AXD UXLA WFUL DBILLIXG Article 72. sexding challenges axd provokixg to fight. Every one commits a misdemeanor who (f/.) ^ challenges any other person to fight a duel : or, (&.) - endeavours by words, or by writings, to provoke an}- other person to challenge the offender or to commit a breach of the peace. Article 73. going armed so as to cause fear. ^ Every one commits a misdemeanor who goes armed in public, without lawful occasion, in such a manner as to alarm the public. Article 74. AFFRAY. *An affray is the fighting of two or more persons in a public place to the terror of Her Majesty's subjects. Every affray is a misdemeanor. 1 3 Inst. 158 ; 1 Russ. Cr. 396 ; Draft Code, s. 97. 2 B. V. PhiUips, 1805, 6 East, 464. It appears from the judgment in this case (pp. 470-5) that the otience defined in clause (6.) is only a special illusti-ation of the general law as to incitement. 2 2 Edw. 3, c. 3, parapln-ased with reference to the explanations given in I Hawk. P. C. 488-9. * 3 Inst. 158 ; 1 Russ. Cr. 390 ; Draft Code, s. 96. THE CRIMINAL LAW 55 Article 75. UNLAWFUL ASSEilBLY. ^ An unlawful assembly is an assembly of three or more persons : — {a.) with intent to commit a crime by open force ; or (/^) with intent to carry out any common purpose, laAvful or unlawful, in such a manner as to give firm and courageous persons in the neighbourhood of such assembly reasonable grounds to apprehend a breach of the peace in consequence of it. Every unlawful assembly is a misdemeanor. Illustrations. (a.) - Sixteen persons meet for the i:)urpose of going out to commit the offence of being by night, unlawfully, upon land, armed in pursuit of game. This is an unlawful assembly. (h.) ^ A, B, and C meet for the purpose of concerting an indictable fraud. This, though a conspiracy, is not an unlawful assembly. (c.) '^ A, B, and C having met for a lawful pur^^ose, quarrel and fight. This (though an affray) is not an unlawful asseml^ly. (d.) ^ A large number of persons hold a meeting to consider a petition to parliament lawful in itself ; but they assemble in such numbers, with such a show of force and organization, and when assembled make use of such language as to lead pei'sons of oi'dinary firmness and courage in the neighbourhood to apjjre- hend a Iji'each of the peace. This is an unlawful assemlily. ' Brook's Abt. "Riot"; Viiier's Abt. "Riot"; Lambarde, cli. v. 17-2-184; Dalton, pp. 310-14 ; 1 Hawk. P. C. 513-16. See also Report of Criminal Code Commission of 1S79, p. 20, and Draft Code, ss. 84, 86. - R. V. Brodrihh, 1816, 6 C. & P. 571. The meeting in this case was in a private house. ^ (Submitted.) Compare 1 Hawk. P. C. 515. * 1 Hawk. P. C. p. 515. 5 Rtdford V. Birlty, 1822, 3 Starkie, N. P. 106-8 ; 1 St. Tr. N. S. 1217, 1218 ; R. V. Vincent, 1839, 9 C. & P. 91. 2 St. Tr. N. S. 1081, 1082. 56 A DIGEST OF Article 76. ROUTS. ^ A rout is an unlawful assembly which has made a motion towards the execution of the common purpose of the persons assembled. Article 77. RIOTS. ^ A riot is an unlawful assembly Avhich has actually begun to execute the purpose for which it assembled, by a breach of the peace, and to the terror of the public ; or 2 a lawful assembly may become a riot if the persons assembled form and proceed to execute an unlawful pui-pose to the terror of the people, although they had not that purpose when they assembled. ^ Every person convicted of riot is liable to be sentenced to hard labour. Illustration. A, B, and C met at A's house for the purpose of beating D, who lives a mile off. They then go together to D and there beat him. At A's house the meeting is an unlawful assembly, on the road it is a rout, and when the attack is made upon D, it is a riot. Article 78. preventing reading proclamation and continuing to riot after proclamation. ^ Whenever twelve persons or more are unlawfully, riotously and tumultuously assembled together, to the disturbance of the public peace,^ it is the duty of the justices of the peace, 1 See note to Article 75. Draft Code, ss. 85, 87. - Founded on the language of Holt, C. J., in B. v. Sohy, 1707, II Mod. 116. 3 3 Geo. 4, c. 114. 4 I Geo. 1, St. 2, c. 5, ss. 1, 2, 3 (redrawn). Draft Code, ss. 88, 89. " Actual riot is not necessary. E. v. Jamtf;, 1 831, o C. & P. 153. THE CRIMINAL LAW 57 and the sheriff and under-sheriff of the county, or of the mayor, bailiffs, or other head officers, or justices of the peace of a city or town corporate, to resort to the place where such assembly is, and among the rioters, or as near to them as the person making the proclamation can safely come, with a loud voice command or cause to be commanded silence to be, and then openly and with loud voice make or cause to be made a proclamation ^ in these words or like in effect : " Our Sovereign Lady the Queen chargeth and com- " mandeth all persons being assembled immediately to dis- " perse themselves, and peaceably to depart to their habita- " tions, or to their lawful business, upon the pains contained " in the Act made in the first year of King George for "preventing tumultuous and riotous assemblies. God save " the Queen." . All persons commit felony, and are liable to - penal servi- tude for life, who (a.) ^ wilfully and knowingly oppose, obstruct, let, hinder or hurt, any person who begins to make, or goes to make the said proclamation, whereby such proclamation is not made, or (&.) ^ who remain, or continue together unlawfully, riotously and tumultuously, for one hour, after the proclamation afore- said was made ; or if they know that its making was hindered, for one hour after it would have been made if it had not been hindered as aforesaid. Article 79. riotous demolition of houses, etc. ^ All persons are guilty of felony, and are liable to penal servitude for life, who, being riotously and tumultuously 1 The omission of " God save the Queen " defeats the effect of the pro- clamation, li. V. Child, 1830, 4 C. & P. 442. - Suljstituted for death by 7 Will. 4 & 1 Vict. c. 91, s. 1, and the I'enal Servitude Acts. See too 5 & 6 Vict. c. 19 (S. L. R.). •' 1 Geo. 1, St. 2, c. 5, s*. 5. ■* Ibid., ss. 1 and 5 (redi-awn). '" 24 & 25 Vict. c. 97, s. 11 (redrawn). Draft Code, s. 90. 58 A DIGEST OF assembled together to the disturbance of the public peace, unlawfully and with force demolish, or pull down, or destroy, any ^ building, public building, machinery, or mining j)lant, as defined in the note hereto, or begin to do so. Article 80. riotous damage of houses, etc. - All i^ersons are guilty of a misdemeanor, and liable to seven years jjenal servitude, who being so assembled as aforesaid unlawfully and with force injure or damage any of the things aforesaid : and any person indicted for the felony in Article 79 may be convicted for the misdemeanor in this Article. Article 81. persons assembled in order to smuggle. ^ Every one commits a misdemeanor and is liable to a fine of not more than £500, and not less than £100, who with any 1 "Building" means any church, chapel, meeting-house, or other place of divine worship, or any house, stable, coach-house, out-house, warehouse, office, shop, mill, malt-house, hop-oast, barn, granary, shed, hovel or fold, or any building or erection used in farming land, or in carrying on an}' trade or manufactui-e, or any branch thereof. "Public building" means any building other than such as are in this section before mentioned, belonging to the Queen, or to any count}', riding, division, city, borough, poor-law union, parish or place, or belonging to any university 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 contiibution. " Machineiy " means "any machinery, whether fixed or movalile, pre- pared for, or employed in, any maniifacture, or in any branch thereof." " Mining plant " means " any steam-engine, or other engine for sinking, working, ventilating, or draining any mine, or any staith, building, or erection used in conducting the business of any mine, oi- any bridge, waggon- way, or trunk for conveying minerals from any mine." '^ 24 & 25 Vict. c. 97, s. 12 (redrawn). Draft Code, s. 91. ^ 42 & 43 Vict. c. 21, s. 10 and 39 & 40 Vict. c. 36, s. 189. The former section replaces s. 188 of the latter Act, by force of s. 14 of the former Act. As the sections stand they are still obscure in some points. I believe them to mean what is stated in the text. The first part of the article gives the effect of 42 & 43 Vict. c. 21, s. 10, with only a slight change in the order of the words. The second part is what I suppose to be the meaning of 39 & 40 Vict. c. 36, s. 1 89. That section begins by providing that every THE CRIMIXAL LAW 59 two or more jDersons assembles for the puq^ose of unshipping, landing, running, carrying or concealing any spirits, tobacco or any prohibited, restricted or uncustomed goods, or who having so assembled unships, etc., such spirits, etc. If any person engaged in any of the said offences is armed with firearms or other oftensive weapons, or, whether so armed or not, is disguised in any way, or being so armed or disguised is found within five miles of the sea coast or of any tidal river with any goods liable to forfeiture under the 39 & 40 Yict. c. 36, or any other Act relating to the Customs, he must be imprisoned with or without hard labour for a term not exceeding three years. Every one must be imprisoned for a term not exceeding twelve months who procures, or hires, or dej)utes, or authorizes any other person to procure or hire any jDerson or jDersons to assemble for the pui'j^ose of being concerned in the landing one who procures or hires any person to assemble for the purposes specified in the Srd paragraph of the Article in the text, is to be imprisoned for the term mentioned. It then proceeds to enact that if any person " eni/aned in the commi-s-'.S!) ; Otli Rep. C." L. C. ait. 50, p. 34. Draft Code, s. 104. - 33 & 34 Vict. c. 90 (rediawn). As to the lifstory of this offence, see 3 Hist. Cr. Law, 257-62. ■■' Sect. 15. 74 A DIGEST OF (a.) ^ who, within the limits of Her Majesty's dominions, prepares or fits out any naval or military expedition to proceed against the dominions of any ^ friendly state, or is engaged in such preparation or fitting-ont, or assists therein, or is employed in any capacity in such expedition ; or (b.) ^ who, being a British subject, within or without Her Majesty's dominions, accepts or agrees to accept any com- mission or engagement in the military or naval service of any foreign state at war Avith any friendly state, or, whether a British subject or not, within Her Majesty's dominions induces any other person to accept or agree to accept any commission or engagement in the military or naval service of any such foreign state as aforesaid ; or (c.) ^ who, being a British subject quits or goes on board any ship with a view of quitting Her Majesty's dominions, with intent to accept any commission or engagement in the military or naval service of any foreign state at war with a friendly state, or, whether a British subject or not, within Her Majesty's dominions, induces any other person to quit or to go on board any ship with a view of quitting Her Majesty's dominions with the like intent : or (d.) ^ who, being the master or owner of any ship, know- ingly either takes on board, or engages to take on board, or has on board such ship within Her Majesty's dominions any illegally enlisted person ; as defined in Article 105 ; or (e.) "^ who, within Her Majesty's dominions, with intent or knowledge, or having reasonable cause to believe, that the same will be employed in the military or naval service of any foreign state at war with any friendly state, builds, agrees to build, causes to be built, equips, de- spatches, or causes or allows to be despatched, any ship, or issues or delivers any commission for any ship. Provided that a person building, causing to be built, or 1 33 & 34 Vict. c. 90, s. 1 1 ; see B. v. Sandoval, 1887, 56 L. T. 526. ^ "Friendly state" means "any foreign state at peace with Her Majesty " (sect 4). 2 Sect. 4. * Sect. 5. 5 Sect. 7. " Sect 8 (redrawn). THE CRIMINAL LAW 75 equipping a shi^) in any of the cases aforesaid, in pursuance of a contract made before the commencement of such war as aforesaid, is not liable to any of the penalties specified in this Article in respect of such building or equipping — (i.) if forthwith upon a proclamation of neutrality being- issued by Her Majest}' he gives notice to the Secretary of State that he is so building, causing to be built, or equip- ping such ship, and furnishes such particulars of the contract and of any matters relating to, or done, or to be done under the contract as may be required by the Secretary of State ; and (ii) if he gives such security, and takes and permits to be taken such other measures, if am', as the Secretary of State may prescribe for ensuring that such ship shall not be despatched, delivered, or removed without the licence of Her Majesty until the termination of such war as aforesaid. AirncLE 105. SHIPS, ETC., REFERRED TO IX ARTICLE 104 TO BE FORFEITED. ^ All ships and their equipments used in or forming part of any such expedition as is mentioned in Article 104 (a.), or in respect of which is committed any of the offences defined in Article 104 (c), and all arms and munitions of war used in forming part of any such expedition as is mentioned in Article 104 {a.), are forfeited to Her Majesty. The expression " illegally enlisted persons " in Article 104 («.) means — (i.) any person who, being a British subject, within or without the dominions of Her Majesty, has, without the licence of Her Majesty, accepted or agreed to accept any commission or engagement in the military or naval service of any foreign state at war with any friendly state ; (ii.) any person being a British subject, who, without the licence of Her Majesty, is about to (put Her Majesty's domi- nions with intent to accept any commission or engagement in 1 .See section referred to in the Articles ineutiouetl. 76 A DIGEST OF the Diilitaiy or naval service of any foreign state at war with a friendly state ; (iii.) any person who has been induced to embark under a misrepresentation or false representation of the service in which such person is to be engaged, with the intent or in order that such person may accept or agree to accept any commission or engagement in the military or naval service of any foreign state at war with a friendly state. Every ship referred to in Article 104 {d.) is to be detained until the trial and conviction or acquittal of the master or owner, and until all penalties inflicted on the master or owner have been paid, or the master or owner has given security for the payment of such penalties to the satisfaction of two justices of the peace, or other magistrate or magi- strates having the authority of two justices of the peace ; and All illegally enlisted persons must, immediately on the discovery of the offence, be taken on shore, and must not be allowed to return to the shijD. Article 106. increasing force of ships for foreign belligerents and procuring enlistment by misrepresentation. Every person is guilty of a misdemeanor, and is liable upon conviction thereof to the punishment specified in Article 104, who {a) ^ within the dominions of Her Majesty, and without such licence as is mentioned in Article 104, by adding to the number of the guns, (jr by changing those on board for other guns, or by the addition of any equipment for war increases or augments, or procures to be increased or aug- mented, or is knowingly concerned in increasing or augment- ing, the warlike force of any ship which at the time of her being within the dominions of Her Majesty was a ship in the military or naval service of any foreign state at war with any friendly state ; or 1 3.3 & :U Vict. e. 90, s. 1 0. THE CRIMIXAL LAW (b.) ^ who induces any other person to quit Her Majesty's flominions, or to embark on any ship within Her Majesty's dominions, under a misrepresentation or false rej)resentation of the service in which such person is to be engaged, with the intent or in order that such person may accept or agree to accept any commission or engagement in the mihtary or naval service of any foreign state at war with a friendl}' state. Article 107. presumption of knowledge of purpose for which ship IS BUILT. ■^ Where any ship is built by order of or on behalf of any foreign state when at war with a friendly state, or is de- livered to or to the order of such foreign state, or any person who to the knowledge of the person building is an agent of such foreign state, or is paid for by such foreign state or such agent, and is employed in the militar}^ or naval service of such foreign state, such ship must, until the contrary is proved, be deemed to have been built with a view to being so employed, and the burden of proving that he did not know that the ship was intended to be so employed in the military or naval service of such foreign state lies on the builder of such ship. 1 33 & 24 Vict. c. 90, .s. 6. 2 Sect. 9. 78 A DIGEST OF CHAPTER X OFFENCES AGAINST PERSONS ON THE HIGH SEAS- PI R A CY—SLA VE- TRA DING Article 108. PIRACY. ^ Piracy by the laAv of nations is — Taking a ship on the high seas or within the jurisdic- tion of the Lord High Admiral from the possession or control of those who are lawfully entitled to it, and carrying away the ship itself, or any of its goods, tackle, apparel, or furni- ture, under circumstances Avhich would have amounted to robbery if the act had been done within the body of an English county. Whoever commits piracy by the law of nations is liable ^ The definition is founileil on one given by Sir Cliarles Hedges, in R. v. Dawson, 1696, 13 St. Tr. 4o4, and recognised by the Judicial Committee of the Privy Council in ^4. G. of Hoikj Komj v. KvjoJc-a-sin(j, 1873, L. R. o P. C. 179, 199 ; see, too, 7th Rep. C. L. C. p. 70. As to the pnnisli- ment, the text gives what I suppose is the result of 28 Hen. 8, c. lo, ss. 2 & 3 ; 39 Geo. 3, c. 37, s. 1 ; 1 Geo. 4, c. 90, s. 1 ; 7 & 8 Geo. 4, c. 28, s. 12. Tlie doubt expressed at the end of the Article is founded on the absence of any express autliority for the atlirmative of the proposition, and on the absurdity of the negative. If a Queen's ship were to fall in with an armed vessel belonging to no state, and obviouslj- cruising for piratical purposes, would the commanding officer hesitate to seize tliat vessel because it had not actually taken a prize ? It seems equally difficult to suppose that the vessel would be permitted to escape, or that it coiild lawfully be arrested if the crew were not pirates. The language of several of the statutes given in Articles 112, 113, and 114, seems to imply that a pirate is the name of a known class of persons, like a soldier or sailor, and that a man may be a j^irate though lie has never actually robbed, as he may h& a soldier though he lias not actually fought. By 13 & 14 Vict. c. 26 the Admiialty Courts are empowered when any of Her Majesty's ships attack or ai-e engaged with any persons alleged to be pirates afloat or ashoi-e, to "take cognizance of and determine wliether the persons or anj' of them so attacked or engaged were pirates." Tlie object of the Act was to determine the amount of certain rewards to be paid to the captors ; no definition of pirates is given. See 2 Hist. Cr. Law, pp. 27-8, and Draft Code, s. 105. THE C RIM UAL LAW 79 (it seems) to the same punishment as if the act constituting piracy had been committed within the body of an English county. It is doubtful whether persons cruising in armed vessels with inte-nt to commit piracies, are pirates or not. Article 109. piracy with violence. ^ Every one commits felony and must upon conviction thereof be sentenced to ^ death who, with intent to commit or at the time of or immediately before or immediately after committing the crime of piracy in respect of any ship or vessel, assaults with intent to murder any person on board of or belonging to such ship or vessel, or stabs, cuts, or wounds any such person, or unlaw^fuUy does any act by which the life of such person may be endangered. Article 110. committing acts of hostility under foreign commission. ^ Every one is deemed to be a pirate who, being a natural- born subject of Her Majesty, or denizen of this kingdom, commits any piracy, robbery, or act of hostility against others Her Majesty's subjects on the sea under colour of any commission from any foreign prince or state, or pretence of authority from any person whatever. Article 111. ADHERING ON THE SEA TO THE QUEEN's ENEMIES. * Every one is deemed to be a pirate who, being a natural- born subject or denizen of Her Majesty, during any war 1 7 Will. 4 & 1 Vict. c. 88, s. 2. Draft Code, s. 106. ^ The Act 31 Vict. c. 24, as to executions taking place within the walls of a prison, does not apply to this offence ; see ss. 2 and 16. 3 II & 12 Will. 3, c. 7, s. 7. For this and the four following Articles, see Draft Code, ss. 107-109. * 18 Geo. 2, c. 30. 80 A DIGEST OF commits any hostility against Her Majesty's subjects upon the sea, or in any haven, river, creek, or place where the admiral has power or jurisdiction, by virtue or under colour of any commission from any of Her Majesty's enemies, or is any way adherent or gives aid or comfort to Her Majesty's enemies upon the sea or in any other such place as aforesaid. Article 112. boarding ships axd thhowixg cargo overboard. ^ Every one is deemed to be a pirate who, belonging to any ship or vessel whatever, upon meeting any merchant ship or vessel on the high seas, or in any port, haven, or creek, forcibly boards and enters into such ship or vessel, and though he does not seize or carry off such ship or vessel, throws overboard or destroys any part of the goods or mer- chandises belonging to such ship or vessel. Article 113. masters and seamen favouring pirates. 2 Every one is deemed to be a pirate who, being the com- mander or master of any ship, or a seaman or mariner in any place where the admiral has jurisdiction, betrays his trust, and turns pirate, enemy, or rebel, and piratically and felo- niously runs away with his ship, or any barge, boat, ordnance, ammunition, goods, or merchandise : or yields them up voluntarily to any pirate ; or brings any seducing message from any pirate, enemj^, oi- I'ebel ; or consults, combines, or confederates with or attemj^ts to corrupt an}^ commander, master, officer, or mariner to yield up or run away with an}' ship, goods, or merchandise or turn pirate or go over to pirates ; or 1 8 Geo. 1, c. 24, s. 1 (last part). - II & 12 Will. 3, c. 7, s. 8. Section 9 enacts in substance that accessories to piracj- shall he punished as pirates. THE CRIMINAL LAW 81 lays violent hands on his commander Avhereby to hinder him from fighting in defence of his ship and goods committed to his trust ; or confines his master, or makes or endeavours to make a revolt in the ship \} even if the object of such revolt is to redress real grievances]. Article 114. trading with pirates and conspiring with them. ^ Every one is deemed to be a pirate who in any wise trades with any pirate by truck, barter, exchange, or in any other manner, or furnishes any pirate, felon, or robber upon the seas with any ammunition, provision, or stores of any kind ; or fits out any ship or vessel knowingly and with a design to trade with, or supply, or correspond with any pirate, felon, or robber on the seas ; or in any way consults, combines, confederates, or corresponds with any pirate, felon, or robber on the seas knowing him to be guilty of any such piracy, felony, or robbery. Article 115. punishment for statutory piracies. ^ Every one who commits any of the offences defined in Articles 110-114, both inclusive, is liable upon conviction of such act to penal servitude for life. Article 116. not fighting pirates. ■* Every one commits a misdemeanor, and must, on con- viction thereof, be imprisoned for six months, who being a 1 The words bracketed give the effect of R. v. Hastiwix, 182o, 1 Moody, 82 ; R. V. M'Grer/or, 1844, 1 C. & K. 429. As to "confines,^' see B. v. ./o«es 1870, II Cox, C. C. 393. - 8 Geo. I, c. 24, s. I (first part). 3 7 Will. 4 & I Vict. c. 88, s. 3, S. 4 8 Geo. 1, c. 24, s. 6. Draft Code, s. 110. G 82 A DIGEST OF commander, master, or any officer or seaman, or mariner of any merchant ship which carries guns and aiins, does not when attacked by any pirate, or by any ship on which any j^irate is on board, fight and endeavour to defend himself and his vessel from being taken by such pirate, or who utters any words to discourage the other mariners from defending the ship, so that the ship falls into the hands of such pirate. Article 117. slave-tradixg defined. ^ Each of the following acts and ever}" contract to do any one of them is an act of slave-trading : — (a.) To deal or trade in, purchase, sell, barter, or transfer slaves or persons intended to be dealt with as slaves. (&.) To carry away or remove slaves or other persons as or in order to their being dealt with as slaves. (c.) To import or bring into an}' place whatsoever slaves or other persons as or in order to their being dealt with as slaves. (d.) To ship, tranship, embark, receive, detain, or confine on board any ^ vessel slaves or other persons — for the purpose of their being carried away or removed as or in order to their being dealt with as slaves ; or for the purpose of their being imported into any place whatever as or in order to their being dealt with as slaves. (Singh are described in Mill's British India, iv. 321, &c., in Lord Macaulay's Essays, p. 620 (ed. of 1850), and in Marshman's Historj-, i. 424. 1 R. V. WiUiaim, 1762, 3 Burr. 1317. 2 R. V. Okty, 1722, 8 Mod. 46. According to ff. v. Morfit, 1816, R. & R. 307, decided long afterwards, A might have committed his servant for theft. ^ >See precedent of indictment, 2 Chit. Crim. Law, 236. * Precedent of indictment, 2 Chit. Crim. Law, 292. '■' R. v. Jarkmn, 1787, 1 T. R. 653. '' R. V. Badger, 1843, 4 Q. B. 468. " 31 Car. 2, c. 2, s. 11, the Habeas Corpus Act. The jienalty is prte- munire, as explained by Coke, 1 Inst. 130 a. 7th Rep. C. L. C. p. 37. 90 A DIGEST OF realm resident in England. Wales, or Berwick, as a prisoner in or to Scotland, Ireland, Jersey, Guernsey, or any other place beyond the sea, with or without the Queen's dominions or who so commits, detains, imprisons, or transports any person. Whoever commits any such misdemeanor is put out of the Queen's protection. His lands, tenements, goods, and chattels are forfeited to the Queen, and he is to be imprisoned for life (or perhaps at the Queen's pleasure). Article 126. frauds and breaches of trust by officers. ^ Every public officer commits a misdemeanor who, in the discharge of the duties of his office commits any fraud or breach of trust affecting the public, whether such fraud or breach of trust would have been criminal or not if committed against a private person. Illustrations. (1.) ^ A, an accountant in the office of the Paymaster-General, fraudulently omits to make certain entries in his accounts, whereby he enables the cashier to retain large sums of money m his own possession, and to appropriate the interest on such sums to him- self after the time when they ought to have been paid to the Crown. A commits a misdemeanor. (2.) "^ A, a commissary-general of stores in the West Indies, makes contracts with B to supply stores, on the condition that B should divide the profits with A. A commits a misdemeanor. Article 127. neglect of official duty. ^ Every public officer commits a misdemeanor who wilfully neglects to perform any duty which he is bound either by 1 See cases in Illustrations. ^ R. V. Bemhridge, 178.3, 3 Doug. 327 ; 22 St. Tr. 1-160. This would now be an offence in the case of a private person undei' 38 & 39 Vict. c. 24, s. 12. ^&epost, Art. 381. 3 R. V. Valentine Jones, 1809, 31 St. Tr. 2.51. * R. V. Wyat, 1702, I Salk. 381 ; R. v. Bemhridge, ante ; Comyn's Digest, tit. Indictment, D. ; 4 Steph. Com. 272. ^/ TJIE CRIMINAL LAW 91 common law or by statute to perform, provided that the discharge of such duty is not attended with greater danger than a man of ordinary firmness and activity may be expected to encounter. Illustrations. (1.) ^ A, the mayor of B, neglects to perform various acts which it was in his power to do, and which a man of ordinary prudence, firmness, and activity, might have been expected to do, in order to suppress riots in B. A is guilty of a misde- meanor. (2.) ^ A, the Lord Mayor of London, refrains from making the proclamation in the Riot Act, and from ordering soldiers to disperse a mob, because he is afraid to do so, in circumstances in which a man of ordinary coui'age would not have been afraid. A commits a misdemeanor. (3.) -^ A, a sheriff, refuses to execute a criminal condemned to death. A conunits a misdemeanor. (4.) ^ A, a coroner, refuses to take an inquest on a body, after notice that it is lying dead in his jurisdiction. A commits a misdemeanor. (5.) ° A, a constable, wilfully refuses to arrest a person who commits a felony in liis presence. A commits a misdemeanor. (6.) ® A, a clergyman of the Church of England, refuses to solemnise marriage between persons who might lawfully be married and who tender themselves for that purpose. He commits a misdemeanor. 1 R. V. Pinney, 1832, 5 C. & P. 2o-4, and 3 B. & Ad. 947, 3 St. Tr. N. S. 1. This is the case of the Bristol riots. Mr. Pinney was, in fact, acqiiitted ; but the case involves the principle of the illustration. ^ R. V. Kennet, 1781 (Lord Mayor in 1780), printed in .5 C. & P. 282, as a note to R. v. Pinnty. 3 R. v. Antrohm, 1835, 2 A. & E. 788. * 2 Hale, P. C. 57 ; and see preceilent of indictment, 2 Chit. Crini. Law, 255. s Hawk, P. C. p. 129 ; cf. p. 115. '' R. V. James, 1850, 2 Den. 1. The conviction in this case was quashed on the narrow ground that tlie parties did not sufficiently tender themselves for marriage. The objection that the offence was only an ecclesiastical one was taken, but no judgment was delivered on it. A refusal to bury would proljably stand on the same footing. By 1 Edw. 6, c. 1, it is enacted that a minister " shall not without lawful cause deny" (the Sacrament) " to any person that will devoutl}' and humbly desire it." An indictment for such a denial would be incongruous and indecent, but it is difficult to find any definite legal ground for saying that it would not lie. See Jenkins v. Cook, 1876, L. R. 1 P. D. 80. 92 A DIGEST OF Article 128. offences by soldiers. ^ Every officer who quarters or causes to be billeted any officer, soldier or horse upon any jDcrson otherwise than is allowed by this Act is guilty of a misdemeanor. ^ Every person who negotiates, acts as agent for or other- wise aids or connives at, the sale of a commission, pa^iTient for promotion, retirement, or employment or an unlawful ex- change, is liable on conviction on indictment to a fine of £100, or imprisonment for six months. Article 129. offences by post-office officials. '•^ Every person having official duties comiected with the Post Office or acting on behalf of the Postmaster-General is guilty of a misdemeanor, who contrary to his duty discloses, or in any way makes knoAvn, or intercepts, the contents, or any part of the contents, of an}^ telegraphic messages or any message intrusted to the Postmaster-General for the purposes of transmission. * Ever}' person in the employment of a ^ telegraph compan}' is guilty of a misdemeanor and is liable to imprisonment with hard labour or to a fine of £200 who improperly divulges to any person the purport of any ^telegram. 1 44 & 45 Vict. c. 58, s. 111. - Ibid. s. lo.i. •' 32 & 33 Vict. c. 73, s. 20. * 47 & 48 Vict. c. 76, s. II. This offence is also pimisliable summarily ; see Oke's Synopsis, p. 632. ^ " Any company, corporation, or persons carrying on the business of sending telegrams for the public under whatever authority or in whatever manner, such company, corporation, or persons may act or be constituted." '' "A written or printed message or communication, sent to or delivered at, a post-office, or the office of a telegraph company, for transmission by telegraph, or delivered bj- the Post Office or a telegraph company as a message or communication transmitted b}' telegraph." THE CRIMINAL LAW 93 Article 130. offences by a sheriff, (sfc. ^ Any person being a sheriff, under-sheriff, bailiff or officer of a sheriff, whether within a franchise or without is guilty of a misdemeanor and liable to imprisonment not exceeding one year, and to pay a fine or if he has not wherewith to pay, to imprisonment for not exceeding three years, who (a.) refuses to arrest any felon in his bailiwick ; or (6.) is guilty of an offence against or breach of, the provisions of the Sheriffs' Act, 1887. Article 131. offences by a coroner. - A coroner is guilty of misdemeanor, and in addition to any other punishment may be removed from his office, unless it is annexed to any other office, who is guilty of extortion, or of corruption, or of wilful neglect, or ^misbehaviour in the discharge of his duty. Article 132. offences by inland revenue officers, &c. * Any person is guilty of a misdemeanor and on conviction forfeits his office or employment, and is incapable of ever holding any office or employment in or relating to the Excise, who being a collector, or any person appointed to be an officer and employed in relation to duties of excise deals or 1 50 & 51 Vict. c. 55, s. 29, (1) and see Art. Escape, po^it. 2 50 & 51 Vict. c. 71, s. 8. 3 A coroner who by himself or his partner acts for or against any person tried on inquisition or indictment for an offence for Avhich tlie person is charged on an inquisition taken before liim, or a coroner who does not comply with a written requisition of his jui'y to summon a medical practitioner as a witness or to direct a post-mortem examination to be taken, is guilty of misbehaviour in discharge of his duty ; Ibid. ss. 10, 21 (;^). * 53 & 54 Vict. c. 21, s. 7. 94 A DIGEST OF trades in any goods subject to any such duty, or carries on or is concerned in any trade or business subject to any law of excise. ^ Any person is guilty of a misdemeanor and on con- viction is incapable of ever holding any office under the Crown who being a collector or other person intrusted with the collection, receipt, or custody of inland revenue, neglects or omits to keep and render accounts in the prescribed manner and form of all sums of money collected or received by him or intrusted to his care. Article 133. refusal to serve an office. 2 Every one commits a misdemeanor who unlawfully refuses or omits to take upon himself and serve any public office which he is by law required to accept if duly appointed ; but this Article does not extend to cases in which any other penalty is imposed by law for such refusal or neglect, or to any case in which by law or by custom any person is permitted to make any composition in place of serving any office. Illustration. A person may be indicted for refusing to exercise the office of overseer of the poor or jjarish constal^le. 1 53 &54 Vict. c. 21, s. 14. 2 R. V. Bower, 1823, 1 B. & C. 585 ; and see 5th Report, C. L. C. 41, where many authorities are cited. Also 1 Russ. Cr. 307 — 308. THE CRIMINAL LAW 95 CHAPTER XII disobedience to lawful orders Article 134. disobediekce to a statute. ^ Every one commits a misdemeanor who wilfully disobeys any statute of the realm by doing any act which it forbids, or by omitting to do any act which it requires to be done, and which concerns the public or any part of the public, unless it appears from the statute that it was the intention of the Legislature to provide some other penalty for such disobedience. Article 135. disobedience to lawful orders of court, &c. - Every one commits a misdemeanor who disobeys any order warrant, or command duly made, issued, or given by any, court, officer, or person acting in any public capacity and duly authorized in that behalf, unless any other penalty or mode of proceeding is expressly jirescribed' in respect of such dis- obedience. Illustrations. (1.) ^ A refuses to assist a constable in the execution of his duty when lawfully called upon by the constable to do so. A commits a misdemeanor. 1 7?. V. Wright, 1758, 1 Burr. 543; R. v. Harris, 1791, 4 T. R. 202 ; 5th Report, C. L. C. 43.; 2 Hawk. P. C. 289. Draft Code, s. 114. 2 5th Report, C. L C. 43 ; Jones's Case, 1840, 2 Moo. 171 ; R. v. Dale, 1852, D. & P. 37, Draft Code, s. 115. •^ R. V. Sherlock, 1866, 1 C. C. R. 20, and R. v. Lrowii, 1841, Car. and M. 314. In the latter case it was laid down that in order to 9G A DIGEST OF (2.) ^ A refuses to pay money for the support of his bastard child which he has been oi-dered to pay by the Quarter Sessions. A commits a misdemeanor. constitute this offence it is necessai-y that the constable should see a breach of the peace committed, that there should be a reasonable necessity for his calling upon other persons for assistance, and that the person called on should be suffering from no pliysical impossibility to obej', and .should have no lawful excuse for disobedience : see too /'. v. PheJj^ii, 1841, Car. & M. 180. - R. V. Ferrall, 18.50, 2 Den. 51. In this case Pollock, C.B. , asked how it would be if the man could not pay ? and whether a I'efusal to pay a fine is indictable. The answer would seem to be that it is. Imprison- ment on such an indictment would only be a roundabout way of doing what is commonly done in cases of fine, viz. inflicting an alternative term of imprisonment. Whether a man is sentenced to be fined £100 and to be imprisoned in default of payment, or to be imprisoned because he has not obej-ed the order of the Court to pay a fine of £100, is rather a matter of form than anything else. THE CRIMINAL LAW 97 CHAPTER XIII BRIBERY AND CORRUPTION— SALE OF OFFICES Article 136. judicial corruption. ^ Every one who gives or offers to any person holding any judicial office, and every person holding any judicial office who accepts any bribe, commits a misdemeanor. Every gift or payment made in respect of or in relation to any business having been, being, or about to be transacted before any such person in his office is a bribe, whether it is given in order to influence the judicial officer in something to be done, or to reward him for something already done, and whether the thing done or to be done is itself proper or improper. Article 137. corruption of other public officers. 2 Every one commits a misdemeanor who by any means endeavours to force, persuade, or induce any public officer not being a judicial officer to do or omit to do any act which the offender knows to be a violation of such officer's official duty. 1 3 Inst. 144-8 ; 1 Hawk. P. C. 414-1.-) ; oth Rep. C. L. C. p. 20-1. See, too, Spedding's Life of Bacon, vii. 209-78. The crime is so rare that the definition is very imperfect and more or less conjectural. See 3 Hist. Cr. Law, 250-5 ; Ui-aft Code, s. 111. 2 5th Report, C. L. C. " oifences against the Executive Power " art. 35, p. 47. Many authorities are cited, and in particular the chapters of tlie 3id Inst, and Hawkins referred to in the last note ; also R. v. Vaui/hau, 1769, Burr. 2494, see especially 2501, and see R. v. Lanrasttr, 1890, 10 Cox, 737. H 98 A DIGEST OF Article 138. corruption of public bodies. ^ Every one is guilty of a misdemeanor and is liable to the penalties mentioned below, who, by himself, or in conjunction with another person — (a.) corruptly solicits or receives, or agrees to receive, for himself or for any other person, any ^ reward as an induce- ment to, or reward for, or otherwise on account of, any member, officer, or servant of a ^ public body, doing or forbearing to do anything in respect of any matter or transaction actual or proposed in which the ^ public body is concerned ; or (b.) corruptly gives, promises, or offers any ^ reward to any person, whether for the benefit of that person or another person, as an inducement to, or reward for, or otherwise on account of, any member, officer, or servant of any ^public body, doing or forbearing to do anything in respect of any matter or transaction, actual or proposed in which the ^ public body is concerned. ^ Such person is liable {a.) to imprisonment with hard labour for two years, or a fine not exceeding £500, or to both fine and imprisonment ; and, (&.) to be ordered to pay to such body and in such manner as the Court directs the amount or value of any ^reward received by him or any part thereof; and, (c.) to be adjudged incapable of being elected or appointed to any ^ public office for seven years from, and to forfeit any such office held by him at, the date of the conviction ; and (d.) on a second conviction for a like offence, in addition to the foregoing penalties to be adjudged to be for ever incapable of holding any ^ public office and to be incapable for seven 1 52 & 53 Vict. c. 69, s. 1. 2 "gift, loan, fee, reward, or advantage." 2 See note ^ on p. 99. * Ibid. s. 2. 5 As in Note 2 excluduig advantage. THE CRIMINAL LAW 99 years of being registered as an elector, or voting at an election either of members to serve in Parliament or of members of any ^ j)ublic body ; and {e.) if he is an officer or servant in the employ of any ^ public body, at the discretion of the Court to forfeit his right and claim to any compensation or pension to which he would otherwise have been entitled. A person is not exempt from punishment under this Act by reason of the invalidity of the appointment or election of a person to a public office. Article 139. embracery. ■ 2 Every one commits the misdemeanor called embracery who by any means whatever except the production of evidence and argument in open court attempts to influence or instruct any juryman, or to incline him to be more favourable to the one side than to the other in any judicial proceeding whether any verdict is given or not, and whether such verdict, if given, is true or false. ^ " The expression ' public body ' means any council of a county or county of a city or town, any council of a municipal borough, also any board, commissioners, select vestrj-, or other body which has power to act under, and for the pui-poses of, any Act relating to local government, or the public health, or to poor law or otherwise to administer money raised by rates in pursuance of anj- public general Act, but does not include any public bod}- as above defined existing elsewhere than in the United Kingdom." " The expression ' public office ' means any office or emplojTuent of a person as a member, oiBcer, or servant of such public body." See the Act as to the meaning of "advantage." Ibid. s. 7. 2 1 Hawk. P. C. 466 ; 1 Russ. Cr. 360. It is provided by the Jury Act of 1825, 6 Geo. 4, c. 50, s. 61, that "notwithstanding anything herein contained every person who shall be guilt}' of the offence of embracery, and every juror who shall wilfully or corruptly consent thereto," shall be liable to be proceeded against, and pimished as before the Act. I do not know what, was the reason for tliis section. See Draft Code, s. 129. H 2 100 A DIGEST OF Article 140. definition of bribery of voters. ^ Every one is guilty of bribery (a.) Who directly or indirectly by himself or by any other person on his behalf, ^ in order to induce any voter to vote or refrain from voting at any election ; ^ or corruptly on account of such voter's having voted or refrained from voting at any election ; * or in order to induce any person to procure or endeavour to procure the return of any person at any election, or the vote of any voter at any election, (i.) ^ Gives, lends, or agrees to give or lend, or offers or pro- mises, or promises to procure or to endeavour to procure any money or valuable consideration to or for '^ any person what- ever : (ii.) "^ Gives or procures, or agrees to give or procure, or offers or promises, or promises to procure or to endeavour to procure any office, place, or employment to or for any person what- ever; or (6.) ® Who in consequence of any such gift, loan, offer, promise, procurement, or engagement, procures or engages, promises or endeavours to procure the return of any person in any election or the vote of any voter at any election ; or (c.) ^ Who advances or pays or causes to be paid any money to, or to the use of any other person, with the intent that such money or any part thereof shall be expended in bribery at any election, or who knowingly pays or causes to be paid any money to any person in discharge or repay- 1 17 & 18 Vict. c. 102, s. 2. 2 Ibid. 2 (1), (2). ^ Ibid. (1), (2). 4 Ibid. (3). 5 Ibid. (1), (2). " Any person = "any voter, or to or for any person on behalf of any voter, or to or for anv other person." 7 17 & 18 Vict. c. 'l02, s. 2 (1), (2), 8 Sect. 2 (4). 9 Sect. 2 (5). THE CRIMINAL LAW 101 ment of any money wholly or in part expended in bribery at any election ; ^ or (cZ.) " Who being a voter before or during any election directly or indirectly by himself or by any other person on his behalf receives, agrees, or contracts for any money, gift, loan, or valuable consideration, office, place, or employ- ment for himself or for any other person for voting or agreeing to vote, or for refraining or agreeing to refrain from voting at any election ; or (<'.) ^ Who after any election directly or indirectly by himself or by any other person on his behalf receives any money or valuable consideration on account of any person having voted or refrained from voting, or having induced any other person to vote or to refrain from voting ; or (/.) * W^ho, either directly or indirectly, corruptly pays any rate on behalf of any ratepayer for the pui-pose of enabling him to be registered as a voter, thereby to influence his vote at any future election ; or (^.) Any candidate or other person who, either directly or indirectly, pays any rate on behalf of any voter for the purpose of inducing him to vote or refrain from voting ; or (A.) Any person on whose behalf and with whose privity any such payment as in clauses (/.) and (^.) is mentioned is made Article 141. definitiox of undue ixfluence. ^ Every one commits the offence of undue influence (a.) who directly or indirectly by himself or by any other person on his behalf makes use of or threatens to make use 1 This clause does not " extend to.anj' monej' paid or agreed to be paid for or on account of any legal expenses hand fidt incurred in, at, or con- cerning any election." - 17 & 18 Vict. c. 102, s. 3 (1). •' Ibid. s. 3 (2). * 30 & 31 Vict. c. 102, s. 49. The words of the proviso at the end of 17 & 18 Vict. c. 102, s. 2 (see Note 1) seem to be applicable only to s. 2 (5). ■' 46 & 47 Vict. c. 51, s. 2. 102 A DIGEST OF of any force, violence, or restraint, or inflicts or threatens to inflict by himself or by any other person any temporal or spiritual injury, damage, harm, or loss, upon or against any person in order to induce or compel him to vote or refrain from voting, or on account of his having voted or refrained from voting at any election ; or (b.) who by abduction, duress, or any fraudulent device or contrivance impedes, or prevents the free exercise of the franchise of any elector, or thereby compels, induces, or prevails upon any voter either to give or refrain from giving his vote at any election. Article 142. definition of treating. ^ Every person is guilty of treating (a.) who corruptly by himself or by any other person, either before, during, or after an election, directly or indirectly gives or provides, or pays wholly or in part the expense of giving or providing, any meat drink entertainment or provision to or for any jjerson, for the purpose of corruptly influencing that person or any other person to give or refrain from giving his vote at the election, or on account of such person or any other person having voted or refrained from voting, or being about to vote or refrain from voting at such election; or (&.) who being an elector corruptly accepts or takes any such meat drink entertainment or provision. Article 143. punishment of bribery at certain elections. ■^ Every person is guilty of a misdemeanor, and is liable upon conviction thereof to one year's imprisonment and 1 46 & 47 Vict. c. 51, s. I. 2 17 & 18 Vict. c. 102, ss. 2, S, 5; 45 & 46 Vict. c. 50, s. 78 ; 46 & 47 Vict. c. 51, s. 6. Personation is also a corrupt practice, and is punishable as felony ; see Ai't. 407. THE CRIMINAL LAW 103 hard labour, or to be fined any sum not exceeding £200. who commits bribery, undue influence, or treating at or in respect of any election of any member to serve in Parliament, or any municipal election. Article 144. offences at elections. ^ Every one is guilty of a misdemeanor, and is liable to imprisonment with hard labour for two years, if he is a returning officer or an officer or clerk in attendance at a poll- ing station, or for six months if he is any other person, ^\\o (a.) without due authority supplies any ballot paper to any person ; or ■ (6.) fraudulently puts into any ballot box any paper other than the ballot paper which he is authorized by law to put in ; or (c.) fraudulently takes out of the polling station any ballot paper ; or {d.) without due authority destroys, takes, opens, or other- wise interferes with any ballot box or packet of ballot papers then in use for the purposes of the election. Article 145. definition of office. The word " office " in Articles 146 and 147 includes ■^ Every office in the gift of the Crown or of any officer appointed by the Crown, and all commissions, civil, naval, and military, and all places or employments in any public department or office whatever in any part of her Majesty's dominions whatever, and all deputations to any such office and every participation in the profits of any such office or deputation. 1 35 & 36 Vict. c. 33, s. 3 ; as to forging ballot papers, &e., see po.sf, Art. 394. - 5 & 6 Edw. 6, c. 16 ; 49 Ueo. 3, c. 126, s. 1. 104 A DIGEST OF Article 146. selling offices. ^ Every one commits a misdemeanor who does any of the following things in respect of any office, or any appointment to or resignation of any office, or any consent to any such appointment or resignation, that is to say, every one who directly or indirectly {a.) sells the same, or receives any reward or profit from the sale thereof, or agrees to do so : (h.) purchases, or gives any reward or profit for the pur- chase thereof, or agrees or promises to do so. " Whoever commits either of these misdemeanors upon its commission forfeits to the Queen any right which he may have in the office, and is disabled to hold it for life, and it is not lawful for the Queen to disj^ense him from such disability. Article 147. makixg interest for offices for reward. ^ Every one commits a misdemeanor who does any of the following things directly or indirectly : {a.) Receives or agrees to receive any reward or profit for any interest, request, or negotiation about any office, or under pretence of using any such interest, making any such request, or being concerned in any such negotiation : (h.) Gives or procures to be given any profit or reward, or makes or procures to be made any agreement for the giving of any profit or reward for any such request or negotiation as aforesaid : 1 49 Geo. 3, c. 126, s. 3, greatly condensed. 2 5 & 6 Edw. 6, c. 16, s. 1 ; 49 Geo. 3, c. 126, a. 2 ; Ingram'.'i Case, 1604, 3 Inst. 154. The 5 & 6 Edw. 6, c. 16, s. 1, is repealed as to offices iu the Customs, by 6 Geo. 4, c. 105, s. 10. It was, however, extended to offices in the Customs as well as to many others, by 49 Geo. 3, c. 126. I do not quite imderstand the result of this. The present Customs Act, 39 & 40 Vict. c. 36, throws no light on the subject. 3 49 Geo. 3, c. 126, s. 4. THE CRIMINAL LAW 105 (c.) Solicits, recommends, or negotiates in any manner as to any appointment to or resignation of any office in expec- tation of any reward or profit : {d.) ^ Keeps any office or place for transacting or negotiating any business relating to vacancies in or the sale or purchase of or appointment to or resignation of offices. 1 49 Geo. 3, c. 12G, s. 5. 106 A DIGEST OF CHAPTER XIV 1 misleading justice— febjuby— false swearing— subornation Article 148 -perjury defined. ^ Perjury is an assertion upon an oath duly administered in a judicial proceeding, before a competent Court, of the truth of some matter of fact, material to the question depending in that proceeding, which assertion the assertor does not believe to be true when he makes it, or on which he knows himself to be ignorant. * In this definition, the word " oath " includes every affirma- tion which any class of persons are by law permitted to make in place of an oath. ^ The expression " duly administered " means administered 1 Many cases of offences i-esembling, or punishable as, perjury, are to be found in the statutes which are not mentioned in this chapter. An Act not otherwise connected with criminal law may make some form of false declaration, &c. an offence, and though such offences are numerous they are not important, and are therefore omitted fi'om the text. A great many of them would have been merged into the Perjury Bill of 1804 had that measure become law. Its effect in that direction would no doubt have been useful. It may be added that the repealing Schedule of the Bill referred to nearly 140 enactments, and was not then quite exhaustive. It is probable that a similar Bill will soon be passed, when some of the above chapter will become obsolete. 2 See 3 Hist. Cr. Law, pp. 240-50. 3 3rd Inst. 164-167 ; 1 Hawk. P. C. 429-433 ; 3 Russ. Cr. 1, &c., and see note, 5th Report, C. L. C. p. 23. Draft Code, s. 119. * Many statutes to this effect have been passed. See in particular 5 & 6 Will. 4 c. 62, s. 21 ; 51 & 52 Vict. c. 46 and 52 & 53 Vict. c. 63, s. 3, and see statutes as to particular religious bodies collected in 3 Russ. Cr. 26-9. ^ 14 & 15 Vict. c. 99, s. 16, passed to remove doubts in the question by whom an oath might be administered, 3 Russ. Cr. 3. As to Commissioners see 52 Vict. c. 10, s. 7, as to arbitrators, 52 & 53 Vict. c. 49, s. 22. As to using a form binding on the witness's conscience see 1 & 2 Vict. c. 105 ; Omichund v. Barker, 1744, I Atk. 21. THE CRIMINAL LAW 107 in a form binding on his conscience, to a witness legally called before them, by any Court, judge, justice, officer, commissioner, arbitrator, or other person, who by the law for the time being in force, or by consent of the parties, has authority to hear, receive, and examine evidence. ^ The fact that a person takes an oath in any particular form is a binding admission that he regards it as binding on his conscience. ^ The expression "judicial proceeding " means a proceed- ing which takes place in or under the authority of any Court of justice, or which relates in any way to the adminis- tration of justice, or which legally ascertains any right or liability. ^ A proceeding may be judicial although the person accused in it was brought before the Court by which the proceeding is held by an irregular warrant. * The word " fact " includes the fact that the witness holds any opinion or belief ^ The word " material " means of such a nature as to affect in any way, directly or indirectly, the probability of any- thing to be determined by the proceeding, or the credit .) ^in order to obstruct the due course of justice, dissuades, hinders, or prevents any person lawfully bound to appear and give evidence as a witness from so appearing and giving evidence, or endeavours to do so ; or (c.) ^ obstructs or in any way interferes with, or know- ingly prevents the execution of any legal process, civil or criminal. Article 158. intimidation of witnesses before a royal commission. ^ Every one is guilty of a misdemeanor and is liable to a penalty not exceeding £100 or impris(jnment for three months who threatens or in any way punishes, damnifies or injures any person for having given evidence, or on account of the evidence which he has given, upon any inquiry, unless the evidence was given in bad faith ; or attempts to do so. ^ The Court may order a person convicted of this offence 1 Every person convicted of an oifence against clause (o.) is liable to be sentenceil to hard lal)onr. Wright on Conspiracies, 30 ; 14 & l;j Vict, c. 100, s. 29 ; cf. Draft Code, ss. 1-26, 7, 8. 2 1 Hawk. P. C. 64; R. v. Lady Lavhif, 1721, Strange, 904; and see .")tli Rep. C. L. C. p. 50, Art. .57. ■* Cases collected in 1 Russ. Cr. .joS-oGl. ' .>.■) & ilG Vict. c. ().■), s. 3. •' Ibid. s. 4. 1 114 A DIGEST OF to pay the whole or any part of the costs of the jDrosecution and conviction ; and on the application of the complainant award compensation for loss of situation, wages, status, or other damnification or injury, through or by means of the offence ; of which the amount is to be determined by the jury;^ and which maybe recovered b}' the person entitled from the person convicted. ^ In this Article " inquiry " means any inquir}' held under the authority of any Royal Commission or by any Com- mittee of either House of Parliament, or pursuant to any statutory authority whether the evidence , at such inquir}- is or is not given on oath, but does not include any inquiry bv any Court of Justice. 1 55 & 56 Vict. c. 65, s. 5. - Ibid. s. 1. THE CRIMINAL LAW 115 CHAPTER XV. ESCAPE— RESCUE— PRISOX-BEEACH— MISPFJSIOXS— COMPOUNDING OFFENCES Article 159. voluxtary permission by officers of escapes by prisoners. ^ Every one who knowingly, and with an intent to save him from trial or execution, permits any person in his lawful custody to regain his liberty, otherwise than in due course of law, commits the offence of voluntary escape ; and is guilty of high treason if the escaped prisoner Avas in his custody for and was guilty of high treason ; becomes an accessory after the fact to the felony of which the escaped prisoner was guilty, if he was in his custody for and was guilty of felon}' ; and is guilty of a misdemeanor if the escaped prisoner was in his custody for and was guilty of a misdemeanor. Article 160. negligent permission by officers of escapes by prisoners. ■^ Every one is guilty of the misdemeanor called negligent escape who, b}' the neglect of any duty, or by ignorance of the law, permits a person in his lawful custody to I'egain his liberty otherwise than in (hie course of law. 1 -2 Hawk. P. C. 192, 19G, 197 ; 1 Russ. Cr. .569. It does not appear what is the effect of voluntarily permitting the escape of a man lawfviUy charged, Ijiit innocent in fact. Draft Code, s. 138. - 1 Hale, P. C. 600-(;02 ; 2 Hawk. P. C. 194 (speaks doul.tfidly as to tlie second paragraph). Cf. Draft Code, s. 14(1. 1 2 116 A DIGEST OF The person escaping is deemed to have regained his liberty as soon as he gets out of sight of the person from whom he escapes, and not before. Article 161. sheriff procuring concealment or permitting escape. ^Any person being a sheriff, under-sheriff, bailiff, or officer of a sheriff, whether within a franchise or without, is guilty of a' misdemeanor and liable to imprisonment for not exceeding one year and to pay a tine, and if he has not wherewith to pay a fine, to imprisonment for three years, who — («) conceals or procures the concealment of any felon ; (&) lets go at large a prisoner who is not bailable. Article 162. RESCUE defined. ^ Rescue is the act of forcibly freeing a person from custody against the will of those who have him in custody. If the person rescued is in the custody of a private person, the offender must have notice of the ffxct that the person rescued is in such custody. Article 168. quality of offence of rescue. ^ Every (me commits high treason, felony, or misdemeanor who rescues a prisoner imprisoned on a charge of, or under sentence for, high treason, felony, or misdemeanor respec- tively. ■* Any offender convicted of such a misdemeanor is liable to be sentenced to hard labour. 1 50 & 51 Vict. c. 55, s. 29. •^ 1 Russ. Cr. 582 ; 2 Hawk. P. C. 201. 3 Hale, P. C. 606 ; I Russ. Cr. 582-584. Draft Code, s. 136. •1 14 & 15 Vict. c. 100, s. 29. THE CRIMINAL LAW 11' Article 164. felonious rescues. ^ Whoever feloniously rescues any prisoner is liable to seven years penal servitude, or to imprisonment with hard labour for three years. Article 165. rescuing murderers. - Every one commits felony and is liable, upon conviction thereof, to penal servitude for life, who by force sets at liberty, rescues, or attempts to rescue, or set at liberty any person out of prison, committed for or found guilty of murder, or ' rescues or attempts to rescue any person convicted of murder, going to execution or during execution. Article 166. assisting escape of prisoners of war. ^ Every one commits felony and is liable, upon conviction thereof, to penal servitude for life, who («) * assists any alien enemy of Her Majesty, being a prisoner of war in Her Majesty's dominions, whether such prisoner is confined as a prisoner of war in any prison or other place of confinement, or is suffered to be at large on his parole in Her Majesty's dominions or in any part thereof, to escape from such prison or place of confinement, or from Her Majesty's dominions, if at large on his ^parole ; or (h) ^ who (owing allegiance to Her Majesty) after any 1 1 & 2 Geo. 4, c. 88, s. 1. The offence was formerly a clergyal)le felony, so that this enactment mcreased the punishment. 2 25 Geo. 2, c. 37, s. 9. As to punishment, 7 Will. 4 & I Vict. c. 91. Cf. Draft Code, s. 135. 3 52 Geo. 3, c. 156. Draft Code, s. 131. * Ihid., s. 1. '' Ihid., s. 2. « Ihid., s. 3. 118 A DIGEST OF such prisoner as aforesaid has quitted the coast of any part of Her Majesty's dominions in such his escape, knowingly and wilfully upon the high seas aids or assists such prisoner in his escape towards any other di^niinions or place. Article 1(J7. assistixci escape from a constable or peace officer. 1 Every person who aids or assists any prisoner to attempt to make his escape from the custody of any constable or other officer or person who then has the lawful charge of him in order to carry him to gaol by virtue of a warrant of com- mitment for treason or any felony (except petty larceny) expressed in such warrant is guilty of felony and liable to seven years penal servitude. Article 1G8. HELPING TO ESCAPE FROM PRISON. ■2 Every one commits felony and is liable upon conviction to be sentenced to imprisonment with hard labour for two years, who aids any prisoner in escaping or attempting to escape from any ^ prison, or who, with intent to facilitate the escape of any prisoner, conveys or causes to be conveyed into any prison, any mask, dress, or other disguise, or any letter, or any other article or thing. ^ 16 Geo. 2, c. 31, s. 3. This section also contains the punishment for the rescuing of piisoners from transport vessels, now obsolete. 2 28 & 29 Vict. c. 126, s. 37. The word " thing" at the end of the section is not confined to things ejii-sde))i. (jentrls. It includes a crowbar : R. V. Pmjne, IS66, 1 C. C. R. 27. Draft Code, s. 137. ^ "Prison" means "gaol, house of correction, Inidewell, or peni- tentiarJ^" It also includes "the airing-grounds or other grounds or buildings occupied by prison officers for the use of the jjrison, or con- tiguous thereto," 28 & 29 Vict. c. 176, s. 4. THE CRIMINAL LAW 119 Article 1G9. ESCAPE BY PERSONS IN CUSTODY. ^ Every one commits a misdemeanor/ and is liable upon conviction thereof, to imprisonment witli hard labour, who, being lawfully in custody for any criminal offence, escapes frijm that custody. Article 170. breaking prison. 2 Every one commits felony who, being lawfully detained on a charge of, or under sentence for, treason or felony, breaks out of the place in which he is so detained, against the will . of the person by wh(jm he is detained. If the oftender is detained under a charge of misdemeanor the offence of breaking out of the place of confinement is a misdemeanor,"-^ and is liable on conviction to be sentenced to hard labour. The expression " breaks out " means an actual breaking of the place in which the party is confined, whether intentional or not. Illustrations. (1.) ^ A, lawfully confined in prison under a charge o£ felony, climbs over the prison wall and escapes. A has not committed an offence within this Article (though he has within Article 169). (2.) ■^ On the top o£ the prison wall loose bricks are arranged so as to fall if disturbed. In climbing over the wall A acci- dentally disturbs and throws down one of them. A has committed an offence within this Article. 1 2 Hawk. P. C. 183. Draft Code, ss. 133, 4. - 14 & 15 Vict. 0. 100, s. 29. 3 2 Hawk. P. C. 183-189 ; 1 Russ. Cr. ,577-581. There is a good deal of learning on the subject founded on 1 Edw. 2, st. 2, " De frangentibus prisonani," but it is mostly practically obsolete. Tliis statute is not mentioned in the Revised Statutes or in tlie Chronological Table of Statutes. Draft Code, s. 132. * R. V. HaMi-dl, 1821, R. & R. 458. 120 A DIGEST OF Article 171. escaping from certain prisons. ^ Every convict confined in Pentonville and every offender ordered to be confined in Parkhnrst Prison is liable to the consequences hereinafter mentioned who at any time during the term of his imprisonment breaks prison ; or who, while being conveyed to such prison, escapes from any person having the lawful custody of him ; or who (being ordered to be confined in Parkhurst Prison) escapes from the place of his confinement, or from any lands belonging to the prison. Every such offender may for his first offence be punished by an addition to the term of his imprisonment, not exceeding three years in the case of prisoners confined in Pentonville Prison, and two years in the case of prisoners under sentence of imprisonment in Parkhurst Prison. Offenders under sen- tence of penal servitude in Parkhurst Prison are liable to be punished in the same manner as other persons under sentence of jjenal servitude escaping from their place of confine- ment. If any offender punished by such addition as aforesaid to his term of imprisonment is afterwards convicted of a second escape or breach of prison he is guilty of felony. Every person confined in either of the said prisons is liable to be punished by an addition not exceeding twelve months to the term of his imprisonment who attempts to break prison (or in the case of Parkhurst Prison to escape from the place of his confinement), or forcibly breaks out of his cell, or makes an}' breach therein with intent to escape therefrom. 1 As to Parkhurst Prison, I & 2 Vict. c. 82, s. 12 ; Pentonville, 5 & 6 Vict. c. 29, s. 24. This Article formerly applied to Millbank Prison now- pulled down ; see 6 & 7 Vict. 626 now repealed. THE CRIMINAL LAW 121 Article 172. poundbreach. 1 Every one is guilty of a misdemeanor who forcibly rescues goods distrained, or rescues cattle by breach of the pound whei'e tliey liave been placed. Article 173. transports ()]{ i'ep^sons sentenced to penal servitude being at large. ^ Every one connnits felony and is liable, upon conviction thereof, to be kept in penal servitude for life {a.) who, having been sentenced to be kept in jDenal servi- tude, either for life or for any number of years, is afterwards at large within any part of Her Majesty's dominions, without some lawful cause, before the expiration of the term for which he was ordered to be kept in penal servitude ; or {h.) ^ who aids, abets, covnisels, or procures the commission of the offence defined in clause («.). Article 174. MISPRISION OF treason. ^ Every one who knows that any other ^jerson has com- mitted high treason, and does not within a reasonable time give information thereof to a judge of assize, or a justice of the peace, is guilty of misprision of treason, and must upon 1 See 1 Russell Cr. 560, 2 Chitty's Ciim. Law, p. 203, and the authorities quoted in Note (a.) p. 205. It is doubtful whether pound- breach is an offence when it is unaccompanied by a breach of the peace. - 5 tieo. 4, c. 84, s. 22. Punishment altered by 4 & 5 ^ViIl. 4, c. 67- Draft Code, s. 130. 3 4 & 5 Will. 4, c. 67. ■* 1 Hawkins, P. C. 60. As to punishment, ii. 630 ; I Hale, I'. C. 371-4. See Note IV. Cf. Draft Code, s. 18. 122 A DIGEST OF conviction thereof be sentenced to imprisonment for life, and to forfeit to the Queen all his goods and the profits of his lands during his life. Article 175. f MISPRISION OF FELONY. ^ Every one who knows that any other person has com- mitted felony and conceals or procures the concealment thereof, is guilty of misprision of felony, which, though formerly a felony is now a misdemeanor. As to the punishment see aoite. Art. 18.^ Article 176. agreement not to prosecute. ^ Every one commits a misdemeanor who, in respect of any valuable consideration, enters into an agreement not to prosecute any person for felony, or to show favour to any person in any such prosecution. Article 177. compounding penal actions. ■^ Every one commits a misdemeanor, who, having brought, or under colour of bringing, an action against any person under any penal statute in order to obtain from him any penalty, compounds the said action without order or consent of the Court p whether any offence has in fact been com- mitted or not]. 1 I Hawkins, P. C. 73. See Note IV. - The punishment was fonnerlj' provided by 3 Edw. I, c. 9 ; but this fStatute was repealed by oO & 51 Vict. c. oo, s. 39. 3 1 Hale, P. C. G19. Precedents of indictment, 2 Chitt. Crim. Law, 219. It is not necessary to allege that the defendant did actuallj' desist from prosecuting, i?. v. Buriitxx, 1885, 16 Q. B. D. 141. ■• IS Eliz. c. 5, ss. 4, o (very much compressed). The punishment was the pillory, but see 56 Geo. 3, c. 138, s. 2 now repealed. ,See also li. v. Southerton, 1805, 6 Ea. 126 ; R. v. it, 184U, 2 Moo. C. C. 124. THE CRULINAL LAW 123 PART TV ACTS INJURIOUS TO THE PUBLIC IX GENERAL. CHAP. XVI.— Undefined MisDE- j CHAP. XVIII. —Offences against MEANORs. I Morality. CHAP. XVII. — Offences a(!ainst 1 CHAP. XIX. — Common Nulsances Religion. I — Disorderly Houses. ' CHAP. XX.— Vagrancy. CHAPTER XVI UN DEFINED MIS DEM E A XOBS Article 178. acts involving public mischief. ^ACTS deemed to be injurious to the public have in some instances been held to be misdemeanors, because it appeared to the Court before which they were tried that there was an analogy between such acts and other acts which had been ^ See 3 Hist. Cr. Law. 3.31-00, and 2 Hist. Cr. Law, 197-9; seethe whole of chapter i. of Sir W. Erie's work on Trade Unions, pp. 1-54, particularly pp. 48-.53 ; also liis account of B. v. Rowlands and R. v. DujHdd, Ibid. 81-7. Wright on the Laws of Conspiracy should be studied, and contrasted with this. As to offences relating to the adminis- tration of justice, see -Ith Rep. C. L. C. ^va-s's/m, but particularly p. 29, &c. , p. r)0, &c., and H. v. Opif, 1670, 1 Saund. .301 ; R. v. ^/hi 1891, 1 Q. B. 360 ; where an attempt to mislead a judicial tribunal which might lie called into existence, by the manufacture of false evidence, was held to be a misdemeanor. THE CRIMINAL LAW 125 CHAPTER XVII 1 OFFENCES AGAINST RELIGION Article 179. blasphemy defined — alterxative definitions. - Every publication is said to bo blasphonious which con tains Matter relating to God, («.) A denial of the truth Jesus Christ, the Bible, or yf Christianity in general, or the Book of Common Prayer, of the existence of God. whe- intendod to wound the feel- ther the terms of such publi- ings of mankind, or to ex- cation are decent or other- cite contempt and hatred wise. against the church by law (/>.) Any contemptuous re- established, or to promote viling or ludicrous matter immorality. relating to God, Jesus Christ, Publications intended in or the Bible, or the formu- g(jod faith to propagate laries of the Church of Eng- opinions on religious sub- land as by law established, jocts, which the perscm who whatever may be the occasion publishes them regards as of the publication thereof, 1 See 2 Hist. Cr. Law, ch. xxiv. 298-396, and Draft Code, Part XII. - There is autliority for each of these views, as may be seen from a collection of all the cases on the subject in Folkard's Edition of Htarkie on Libel, 613-62.5. Most of the cases are old, and I do not think that, in fact, any one has Ijeen convicted of blaspiiemy in modern times for a mere decent expression of disbelief in Christianty. Mr. Starkie many years ago wrote, " A wilfnl intention to pervert, insult, and mislead others by means of licentious and contumelious abuse applied to sacred su)>jects, oi' by wilful misrepresentations or artful sophistiy calculated to mislead the ignorant and unwary, is the criterion and test of guilt." I'his is the language of a man who means, but is reluctant to say plainly, "You may deny Christianity to be true, ))ut you must do it in a decent way, and with regard to the feelings of others." Lord Coleridge allows me to say that the left-hand side of tlic page correctly states the law laid down in the last trial which took place for Ijlaspliemy, R. v. PooUy, tried 126 A DIGEST OF true, are not blayphemoiis and whether the matter pub- (within the meaning of this lished is, or is not, intended definition) merely because in good faith as an arguuicnt their publication is likely to against any doctrine or wound the feelings of those ojiinion, unless the publica- who believe such oj)inions to tion is made under circum- be false, or because their stances constituting a lawful general adoption might tend excuse. by lawful means to altera- tions in the constitution of the church by law esta- blished. Everyone who pul^lishes any blasphemous document is guilty of the misdemean(jr of publishing a blasphemous libel. Every one who speaks blasphemous words is guilt}' of the misdemeanor of blasphemy. Airi'K LE 180. HERESIES. ^ Every person who is guilty of atheism, blasjjhemy, heresy, schism, or any other damnable doctrine or opinion (^ not punishable at connnon law), may, upon conviction thereof before competent ecclesiastical Court, be directed at the Bodmin Suimiier Assizes, in 1857, before Coleridge, J. Lord Coleridge was counsel in that ca.se. For the reasons given in the chapter on offences against religion in my History of the Criminal La-w, Vol. II. p. 474, I am now unable to agiee with the milder view of the la\v. See Draft Code, s. 141. In A', v. Bamsey and ors, 1883 ; 1 Cab. & Ell. 126, a case of bla.sphemoiis libel tried before Lord Coleridge, he directed the jury according to the doctrine stated in the left-hand column. His sum- ming-up was published by Stevens and Sons in 1888. I wrote an article on the subject maintaining my own view in the Fortiihjhtly Ker'K-ir for March, 1884, and Mr. Aspland afterwards published an able pamplilet on the other side of the question. It did not convince me. It has Ijeen often suggested, and woidd, I think, be highly desirable, that the cpiestion should be settled by Parliament. 1 29 Car. 2, c. 9 ; 53 Geo. 3, c. 127, ss. 1, 2, 3 ; and see Phillimore, Eccl. Law, 1075-7- The excommunication and term of imprisonment is signified to the Queen in Chancery, wliereupon a writ issues " de excom- municato capiendo." 2 Phillimore v. Machov, 187G, 1 P. D. 481 ; Co. Litt. 9G )>. THE CRIMINAL LAW 127 to recant the same and to do penance therefor, and to be ex- communicated and imprisoned for such term, not exceeding six months, as the Court pronouncing the sentence of ex- communication mav direct. Article 181. dexyixg truth of christianity, &c. ^ Every one commits a misdemeanor and upon conviction thereof is liable to the punishments hereinafter mentioned, who having been educated in, or at any time having made profession of, the Christian religion within this realm, by writing, printing, teaching, or advised speaking, denies the Christian religion to bo true, or the holy scriptures of the (31d and New Testament to be of Divine authority. " For the first offence the offender must be adjudged in- capable and disabled in law, to all intents and purposes whatsoever, to have or enjoy any office or employment, I'cclesiastical, civil or military, or any ]3art in them, or any profit or advantage appertaining to them, and if at the time of his conviction the person convicted enjoys or j)os- sesses any office, place, or emplopnent, such office, jjlace, or employment becomes - void. Upon a second conviction for all or any of the said crimes the offender is from thenceforth disabled to sue, prosecute, plearl, or use any action or information in any Court of law or equity, or to be guardian of any child, or executor or administrator of any person, or capable of any legacy or deed of gift, or to bear any office, civil or military, or benefice ecclesiastical, for ever within this realm, and must also suffer im])risonment for the space of three years from the time of sucli conviction. Provided that any person convicted of any of the aforesaid crimes for the first time shall be discharged from all jienal 1 iJ Will. ;^, c. 35, as altered in favoui- of persons denying the doctrine of tlie Holy Trinity l)y 53 (ieo. 3, c. 160, which was afterwards repealed, liut its effect remains, see 36 & 37 Vict. c. 91. - " Shall be and is hereby declared void."' 128 A DIGEST OF ties and disabilities incurred by such conviction, upon his acknowledgment or renunciation of such oifence or erroneous opinions in the same court where he was convicted within foin- months aftei" his ci:)nviction. Article J 82. DEPRAVING THE LORD's SUPPER. ^ Every one commits a misdemeanor who depraves, despises, or contemns the sacrament of the supper and table of the Lord, in contempt thereof by any contemptuous words, or by any words of depraving, despising, or reviling, or by advisedly in any other wise contemning, despising or reviling the said sacrament. Article 188. depraving the book of common prayer. ■' Every one commits a misdemeanor and is liable upon con- viction thereof to the punishments hereinafter mentioned, who does any of the following things : that is to say, (a.) who, in any interlude, play, song, rhymes, or other open words, declares or speaks anything in derogation, depraving, or despising of the Book of Common Prayer, or of anything therein contained, or any part thereof: or (b.) who by open fact, deed, or open threatenings, compels, causes, or otherwise procures or maintains any parson, vicar, 1 1 Edw. 6, c. 1 , s. 1 , applied to the present Book of Common Prayer by 14 Car. 2, c. 4, s. '20. I have i-etained these and the following provi- sions because, though they are practically obsolete, they relate to acts which might still be done. But I have not thought it worth while to en- cumber the Ijook with the statutes of pntmunire, wliich, with hardlj^ an exception, are only historical monuments of bygone political and religious conflicts, imposing penalties on acts which it is barely conceivable that any one should do in the present state of society. The subject is treated fully in the 7th Report of the Criminal Law Commissioners, pp. 37-45. The offences are appealing to Rome from any of the Queen's Courts (24 Hen. 8, c. 12) ; asserting that Parliament has a legislative authority without the Crown (13 Car. 2, c. 1) ; and some others. - 1 Eliz. c. 2, s. 3, applied to the joresent Book of Common Prayer by 14 Car. 2, c. 4, s. 20. THE CRUflXAL LAW 129 or other minister, in any cathedral or parish church or chapel, or in any other place, to sing or say any common or open prayer, or to minister any sacrament otherwise or in any other manner or form than is mentioned in the said book ; (c.) who by any of the said means unlawfully interrupts and lets any parson, vicar, or other minister in any cathedral or parish church, or chapel, in singing or saying common or open prayer, or ministering the sacraments, or any of them, in the manner mentioned in the said book. For the first offence the offender must be fined one hun- dred marks, and in default of payment within six weeks after his conviction must be imprisoned for six months. For the second offence the offender must be fined four hundred marks, and in default of payment as aforesaid must be imprisoned for twelve months. For the third offence the offender must forfeit to the Queen all his goods and chattels and be imjjrisoned for life. Article 184. clergy:mex refusing to use the book of commox prayer. ^ Every one commits a misdemeanor and is liable upon conviction thereof to the punishments hereinafter mentioned, who, being a parson, vicar, or other minister whatsoever, that ought or should sing or say common prayer according to the Book of Common Prayer, {a.) refuses to use the said common prayer, or to minister the sacrament, in such cathedral or parish church, or other place, as he should use or minister the same ; or (&.) uses, wilfully and obstinately standing in the same, any other rite, ceremony, order, or form of mass, openly or privily, or matins, evensong, administration of the sacrament, i or other - open prayer than is mentioned and set forth in the \ said book ; or 1 2 & .3 E(hv. G, c. 1 ; 14 Car. 2, c. 4, s. 20, and see I Eliz. c. 2, .s. 2, which sliglitly vaiies the penaltj' on one point. 2 By open ])rayer " is meant that prayer wliich is for otlners to come nnto or liear, either in common churches, or private chapels, or oratories, commonly called the Service of the Church." 2 & 3 Edw. G, c. 1. K 130 A DIGEST OF (c.) preaches, declares, or speaks anything in derogation or depraving of the said book, or anything therein contained, or of any part thereof. For the first offence the offender must forfeit to the Queen one year's profit of such of his benefices as Her Majesty appoints, and be imprisoned for six months, whether he has any benefice or not. For the second offence the offender must be deprived i2)so facto of all his spiritual promotions, and be imprisoned for a year, and if he has no promotion he must be imprisoned for life. For the third offence the offender must be imprisoned for life. Article 185. disturbing public worship. (a.) ^ Every one commits a misdemeanor and is liable, upon conviction thereof, to a fine of forty pounds, who wilfully and maliciously or contemptuously disquiets or disturbs any meeting, assembly, or congregation of persons, - lawfully assembled for religious worship, or in any way disturbs, molests, or misuses any preacher, teacher, or person officiating at such meeting, assembly, or congregation, or any person or persons there assembled. (b.) ^ Every one who willingly and of purpose maliciously or contemptuously comes into any cathedral or 23arish church or other congregation * permitted by this Act and disquiets or disturbs the same or misuses any preacher or teacher may be required by one justice to find two sureties for fifty pounds, and in default may be committed to Quarter Sessions, and on conviction of the offence there may be fined twenty pounds. 1 52 Geo. 3, c. 155, s. 12. Draft Code, s. 143. - This Act was oiiginallj' coiifiiied to all Protestant Dissenters othei- than Quakers, but was extended to all persons lawfully assembled foi' reli- gious worship bv 9 & 10 Vict. c. 59, s. 4. 3 1 Will. & Mary, c. 18, s. 15. * This Act originally exempted persons taking oaths under 1 Will. & Mary, c. 1, and 30 Car. 2, stat. 2, c. I, from penalties for holding services, &c. ; this part is now repealed. THE CRIMIXAL LAW 131 CHAPTER XVIII ^OFFENCES AGAINST MORALITY Article 186. SODOMY. - Every one commits the felony called sodomy, and is liable upon conviction thereof to penal servitude for life, who (a.) carnally knows any animal ; or, (h.) being a male, carnally knows any man or any woman (per anum). Any person above the age of fourteen years who permits •himself or herself to be so carnally known as aforesaid is a principal in the first degree in the said felony. Article 187. attempt to commit sodomy. ^ Every one who attempts to commit sodomy is guilty of a misdemeanor, and is liable upon conviction thereof to ten years penal servitude. Article 188. OUTRAGES ox DECENCY. * Any male person is guilty of a misdemeanor and is liable on conviction thereof to two years imprisonment and hard labour, who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person. 1 As to rape and other offences of the same kind, see Chap. XXVIII., l>ost, p. 207. 2 24 & 2,5 Vict. c. 100, s. 61 ; see cases in I Russ. Cr. 879-82. See 2 Hist. Cr. Law, 429-30. As to carnal knowledge see Article 2(59, jto^t. Draft Code, s. 144. ■- 24 & 2,j Vict. c. 100, s. 62. Draft Code, s. 14,5. * 48 & 49 Vict. c. C9, s. 11. K 2 132 A DIGEST OF Article 189. ecclesiastical censures for immorality. ^ Every person who commits incest, adultery, fornication, or any other deadly sin (not punishable at common law), is liable upon conviction thereof in an ecclesiastical Court to be directed to do penance, and to be excommunicated, and to be imprisoned for such term not exceeding six months as the Court pronouncing the sentence of excommunication may direct. Article 190. public indecencies. - Every one commits a misdemeanor who does any grossly indecent act in any open and public place in the presence of more persons than one ; ^ but it is uncertain whether such conduct in a public place amounts to a misdemeanor if it is done when no one is present, or in the presence of one person only. ^ A place is j)ublic within the meaning of this Article if it is so situated that what passes there can be seen by any considerable number of persons if they happen to look. 1 13 Eihv. 1, " Circiimspecte agatis " ; 53 Geo. 3, c. 127, ss. 1-3 ; and see PhiIlimore"s Eccl. Law, 1081, 1442 ; also PhilUmore v. Machon, 1876, 1 P. D. 481 ; Co. Litt. 96 b. Incest, though not mentioned in the statute " Circumspecte agatis," is the only offence which in these days is ever pro- secuted under the law here stated. Such a prosecution occurred in modern times in the Bishop of Chichester's Court. See 2 Hist. Cr. Law, 396-429. 2 1 Hawk, P. C. 358. The acts referred to are principally acts of open indecenc}-, but an act scandalousl}- profligate, though not in this sense openly indecent, might in some cases be a misdemeanour, as e.g., selling a wife. .See^;er Lord Mansfield in JR. v. Delaval, 1762, 3 Burr. 1438. If the act done is a public and indecent exposure of the person the offender maj^ on conviction he sentenced to hard labour. 14 & 15 Vict. c. 100, s. 29, and see Article 214 (d.), (e.). Draft Code, s. 146. 3 ElUofs Ca-se, 1861, L. & C. 103. 4 Wehb\s Case, 1848, 1 Den. 338 ; B. v. Holmes, 1853, D. & P. 207 ; /.'. V. Orchard, 1848, 3 Cox, C. C. 248 ; i?. v. Bouverard, stated by Parke, B., in JR. V. Webb, supra at p. 344. THE CRIMINAL LAW Illustrations. The following are instances of public places : ^ The inside of an omnibus. " The roof of a house visible from the back windows of several houses. ^ The inside of a urinal open to the public, and by the side of a footpath in Hyde Park. * The inside of a booth on Epsom racecourse, which the public were invited to enter. ^ A place out of sight of the public footway where people had no legal right to go, but did habitually go without interference. Article 191. obscene publications. ° Every one commits a misdemeanor who without justifica- tion, {a.) publicly sells, or exposes for public sale or to public view, any obscene book, print, picture, or other indecent exhibition ; '' or any publication recommending sexual im- morality, even if the recommendation is made in good faith and for what the publisher considers to be the public good ; or {h.) publicly exhibits any disgusting object. Any person convicted of the offence defined in clause {a.) may be sentenced to hard labour. i R. V. Holmes, 1853, D. & P., 207. 2 ThaUman's Case, 1863, L. & C. 326. 3 R. V. Harris, 1871, 1 C. C. R. 282. ■» R. V. Saunders, 1875, 1 Q. B. 1). 15. 5 R. V. Wellard, 1884, 14 Q. B. D. 63. « Note V. ; Strange, 790 ; and see 20 & 21 Vict. c. 83, s. 1 ; 14 & 15 Vict. 0. 100, s. 29 ; Starkie (by Folkard), 630-637. Draft Code, s. 147. ^ These words are added in reference to the case of R. v. Bradlawjh, tried before Cockburn, C.J. , 18 Jnne, 1877. I have not seen any report of the trial itself. Proceedings in error on the gronnd that the indictment was defective were taken in 1878 and are reported in BradtaiKjh v. R., 1878, 3 Q. B. D. 607. The jury found that the -work prosecuted called the " Fruits of Philosophy " wa« published in good faith for the public good, and that it recommended immoral practices. It appeared in evidence that it was not obscene in tlie sense of being calculated or intended to excite passion. 134 A DIGEST OF (Submitted.) — A person is justified in exhibiting disgust- ing objects, or publishing obscene books, papers, writings, prints, pictures, drawings, or other representations, if their exhibition or publication is for the public good, as being necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature, or art, or other objects of general interest ; but the justification ceases if the publication is made in such a manner, to such an extent, or under such circumstances, as to exceed what the public good requires in regard to the particular matter published. Illustrations. (1.) ^ A exhibits for money, to all comers, an unnatural and monstrous birth. A commits a misdemeanor. B exhibits a similar object to students of medicine only. B does not commit a misdemeanor. (2.) ^ A, a bookseller, publishes the work of a casuist, which contains amongst other things obscene matter. The work is 1 Harrim/v. Walrond, 1681, 1 Russ. Cr. 436. - The second paragiaph of this illustration is based ujion 7?. v. HicMin, 1868, L. R. 3 Q. B. 360 ; and see Steele v. Brannan, 1872, L. R. 7 C. P. 261. The first part is merely my suggestion as to what ought to be held to be the law if the question should arise, but the jioint cannot be called clear. Keating, J. , referred in passing to the question in Steele v. Brannan, at pp. 269, 270, but expressed no opinion upon it. I confine this article to obscenity because I have found no authority for the proposition that the publication of a work immoral in the wider sense of the word is an offence. A man might with perfect decencj' of expression, and in complete good faith, maintain doctrines as to marriage, the relation of the sexes, the obligation of truthfulness, the nature and limits of the rights of pro- perty, &c. , which would l)e regarded as highlj' immoral by most people, and yet (I think) commit no crime. 0))scenity and immorality in this wide sense are entirely distinct from each other. The language used in reference to some of the cases might throw doubt on this, but I do not think an}' instance can be given of the punishment of a decent and hond fide expression of opinions commonly regarded as immoral. I leave this note unaltered, but since it was written the case cited above of B. v. Bradlauijh may be considered to have gone some way towards establishing a different principle, and to have invested juries to a certain extent with the powers of ex jtont facto censors of the press so far as such publications on the relations of the sexes are concerned. I think that juries ought to exercise such a power with the greatest caution when a man writes in good faith on a subject of great interest and open to much difference of opinion, and when no indecency of language is used, except such as is necessary to make the matter treated of intelligible. . TEE CRIMINAL LAW 135 published in Latin, and appears from the circumstances of its pubhcation to be intended for bond fide students of casuistry onl}'. A has not committed a misdemeanor. B extracts the obscene matter from the work so pubHshed, translates it into English, and sells it as a pamphlet about the streets for the purpose of throwing odium upon casuists. B has committed a misdemeanor. Article 191a. sexdixg indecent letters. ^ Every one is guilty of a misdemeanor and is liable to im- prisonment with hard labour for twelve months who sends or attempts to send a postal packet which («.) incloses am' indecent or obscene print, painting, photograph, lithograph, engraving, book or card, or an}- obscene article similar to the above or not ; or (&.) has on such packet or on the cover thereof any words, marks, or designs of an indecent, obscene or grossly offensive character. Article 192. procuring the marriage of parent of a bastard. - Every officer of a union, parish or place is guilty of a misdemeanor who endeavours to induce any person to contract a marriage by a threat or promise respecting any application to be made or any order to be enforced with respect to the maintenance of an}' bastard child. Article 193. 2 unlawfully defiling women. * Every one commits a misdemeanor and is liable upon con- viction thereof to two years imprisonment with hard labour wh(j, 1 47 & 48 Vict. c. 76, s. 4. - 7 & 8 Vict. c. 101, s. 8. :' 48 & 49 Vict. c. 69. (a.), (6.), (r.), {d.) represent s. 2; (e.), (/.) and (r/.) «. 3. Draft Code, s. 148. 136 A DIGEST OF (a.) procures or attempts to procure any girl or woman under twenty-one years of age, not being a common prostitute, or of known immoral character, to have unlawful carnal connexion, either within or without the Queen's dominions, with any other person or persons ; or (6.) procures or attempts to procure any woman or girl to become, either within or without the Queen's dominions, a common prostitute ; or (c.) procures or attempts to procure any woman or girl to leave the United Kingdom, with intent that she may become an inmate of a brothel elsewhere ; or (d.) procures or attempts to procure any woman or girl to leave her usual place of abode in the United Kingdom (such place not being a brothel), with intent that she may, for the purposes of prostitution, become an inmate of a brothel within or without the Queen's dominions j or (c.) by threats or intimidation procures or attempts to procure any woman or girl to have any unlawful carnal connexion, either within or without the Queen's dominions ; or (/.) by false pretences or false representations procures any woman or girl, not being a common prostitute or of known immoral character, to have any unlawful carnal con- nexion, either within or without the Queen's dominions ; or (g.) applies, administers to, or causes to be taken by any woman or girl any drug, matter, or thing, with intent to stupefy or overpower so as thereby to enable any person to have unlawful carnal connexion with such woman or girl. Article 194. householders permitting defilement of girls on their premises. ^ Every person, being the owner or occupier of any premises, or having, or acting or assisting in, the management or control 1 48 & 49 Vict. c. 69, s. 6. THE CRIMINAL LAW 137 thereof, is guilty of felony, and is liable to penal servitude for life, who induces or knowingly suffers any girl under the age of thirteen years to resort to or be in or upon such premises for the purpose of being unlawfully and carnally kno^^^l by any man, whether such carnal knowledge is intended to be with any particular man or generally.^ "^ Every such person as aforesaid who commits any such offence as aforesaid with respect to any girl of or above the age of thirteen and under the age of sixteen years, is guilty of a misdemeanor, and being convicted thereof is liable to be imprisoned for two years with hard labour. It is a sufficient defence to any charge under this article if it is made to appear to the court or jury before whom the charge is brought that the person so charged had reasonable cause to believe that the girl was of or above the age of sixteen years. Article 195. conspiracy to defile. ^ Every one commits the misdemeanor of conspiracy who agrees with any other person to induce any woman to commit adultery or fornication, or to take any woman from the lawful custody of her parents, in order to many her to any person without their consent ; (Submitted.) Provided, that an agreement between a man and a woman to commit fornication or adultery, or that the woman shall leave the lawful custody of her parents without their consent, in order to marry the man, is not a conspiracy. ^ A father who allows his daughter living with him to act as a prosti- tute in his house is within this provision. R. v. Webster, 1885, Ki Q. B. D. 134. ■2 B. V. Lord Grey of Werk, 1682, 9 St. Tr. 127 ; 1 East, P. C. 460 ; R. V. Mear.^, 1851, 2 Den. 79 ; R. v. Delaval, 1762, .3 Burr. 434. Draft Code, s. 149. 3 Ibid. 13eS A DIGEST OF Article 196. pr eventing the burial of dead bodies and disinterring THEM.l '' Every one commits a misdemeanor who prevents the burial of any dead body, or who, without authority, disinters a dead body, even from laudable motives ; or who, having the means, neglects to bury a dead body which lie is legally bound to bury, provided that no one is legally bound to incur a debt for such a purpose : or ^ who buries or otherwise disposes of any dead body on which an inquest ought to be taken, without giving notice to a coroner ; or who, being under a legal duty to do so, fails to give notice to a coroner that a body on which an inquest ought to be held is lying unburied, before such body has putrefied. Illustratio7is. (1.) '^ A digs up a dead body and sells it for purposes of dissection. This is a misdemeanor. (2.) ^ A, without the consent of a dissenting congregation, to which a burial-ground belonged, or of trustees having the legal 1 In li. V. Price, 1884, 12 Q. B. D. 247, 1 held that to burn a dead body instead of burying it was not in itself a misdemeanor, if it was so done as not to amount to a public nuisance. This decision is to a certain extent recognized in B. v. Stephenson, 1884, 13 Q. B. D. 331. There were no means of questioning it. '^ R. V. Vann, 1851, 2 Den. 325. Inquests ought to be held when the coroner on reasonable grounds and in good faith believes that the deceased person's death was of such a nature as woiikl, if true, justif}' tlie holding of an inquest ; R. v. Stejjhennon, supra. A man is bound to burj" his child's body, and, I suppose, his wife's. In R. v. Vann, Lord Campbell said, " A man is liound, if he has the means, to give his child Christian burial." This can hardly be a duty in the case of persons who are not Christians, but probably "Christian" means only decent. It appears from R. V. Stewart, 1840, 812 A. & E. 773, 778, that the person under \^-hose roof anotlier person dies is under a legal duty to carry the corpse, decently covered, to the place of burial if there is no one else who is bound to burj' it. Di-aft Code, s. 158. ^ 1 Riiss. Cr. 620, 7th Rep. C. L. C. pp. 50, 51 ; and see R. v. Stejihenson, su])i'a. 4 R. v. Lynn, 1788, 1 Lea, 497. ^ R. V. Sharjx, 1857, D. & B. 160. TILE CRIMINAL LAW 139 estate therein, but with the leave of tlie j^erson in charge, digs up his mother's coffin in order to bury it in his father's grave in a churchyard some miles off. This is a misdemeanor. (3.) ^ A, a gaoler, refuses to deliver up for burial the dead body of a prisoner who had died in gaol to the executors, on the ground that the deceased person owed him money. This is a misdemeanor. 1 R. V. Scott, 1842, 2 Q. B. 248 (in a note to /.'. v. Fox). UO A DIGEST OF CHAPTER XIX COMMON NUISANCES— DISORDERLY HOUSES Article 197. common nuisance. ^ A COMMON nuisance is an act not warranted by law or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects. It is immaterial whether the act complained of is convenient to a larger number of the public than it inconveniences, but the fact that the act complained of facilitates the lawful exercise of their rights by part of the public may show that it is not a nuisance to any of the public. Illustrations. (1.) " An electric telegraph company without legal authority erects a telegraphic pole in a j^ermanent manner on the waste at the side of and forming part of a highway, leaving room enough for the use of the highway, and not affecting either the metalled road or the footpath, by the side of it. This is a public nuisance, because a small portion of space which the public had a legal right to use is obstructed. (2.) ^ A tramway laid down on a high road in such a manner as to obstruct to some extent the use of the road by common carriages is a public nuisance, although it ma}" be convenient to a large majority of those who use the road. (3.) ^ The public have a right to use the Tyne as a highway 1 1 Hawk. P. C. 692. The qviestion as to tlie public benefit of the act coniplauied of may arise mdirectly. Draft Code, s. 150. 2 R. V. United Kingdom Tehrjrajjh Co., 1862, 3 F. & F. 73. 3 R. V. Train, 1862, 2 B. & S. 640. * R. V. Russell, 1827, 6 B. & C. 566. I thmk this is the effect of the case, which deserves careful study. It is referred to in R. v. Train, but I doubt whether it is not misunderstood there. Lord Tenterden differed THE CRIMINAL LAW 141 and to anchor ships therein for a reasonable time to take in cargoes of coal. A erects staiths and spouts at which ships moored for the purpose can take in coal, but which prevent ships not lying at them from sailing over part of the waterway where they would otherwise be able to sail. The fact that the arrange- ment is on the whole convenient with regard to the public use of the river may be considered by the jury in deciding whether the staiths are a nuisance or not. (4.) The non-repair of a public highway is a public nuisance. (5.) ^ A railway company makes a railway within five yards of an ancient public highway in such a manner that the locomo- tives frighten the horses of persons using the highway as a car- riage road. The railway is made and the locomotives vised under Acts of Parliament, which do not require the railroad company to screen the line from the road. This is not a public nuisance because the act done is warranted by law. Article 198. common nuisance a misdemeanor. ^ Every one who commits any common nuisance is guilty of a misdemeanor. Article 199. punishment for keeping disorderly houses. ^ Every one who keeps a disorderly house commits a com- mon nuisance, and is liable upon conviction thereof to be in it from Bayley and Holroyd, JJ. Of the eight coiinsel engaged seven became judges. In A. G. v. Terry, 1874, L. R. 9 Ch. App. at p. 425, .Jessel, M.R. , disapproved of R. v. Russell, though he approved of the doctrine which I understand to be laid down in it. The tiirning point of the case, as I understand it, is that the ships anchored under the spouts had a right to anchor there for a reasonable time to receive cargo, and that the spouts being recognized by statute could not he regarded as in them- selves illegal. The question on which the judges differed was whether Bayley, J., had influenced the jury Ijy leferring to the collateral advantage of cheapenuig coal in the London market. The effect of time in legalizing a nuisance is somewhat similar. It has not in itself that effect, but the fact that a given state of things is of very long standing may be evidence that it is not in fact a nuisance : see cases in I Russ. Cr. 418-444. The view taken by the Criminal Law Commissioners is rather different, see 7th Rep. p. 59. 1 R. V. Pea.se, 1832, 4 B. & Ad. 30. 2 Cf. Draft Code, ss. 151, 2. ^ 3 Geo. 4, c. 114, s. 1. Diaft Code, s. 154. U2 ^1 DIGEST OF sentenced to imprisonment with (and not without) hard labour. ^Any person who appears, acts, or behaves as master or mistress, or as the person having the care, government, or management of any disorderly house, is to be deemed and taken to be the keeper thereof, and is liable to be prosecuted and punished as such, although, in fact, he is not the real owner or keeper thereof. ^ But the owner of a house, conducted as a disorderly house by a person to whom he lets it as a weekly tenant, is not the keeper of the house merely because he knows the use to which it is put, and does not give his tenant notice to quit. Article 200, disorderly houses. The following houses are disorderly houses, that is to say, common bawdy houses, common gaming houses, common betting houses, disorderly j^laces of entertainment. Article 201. common bawdy houses. ^A common bawdy house is a house or room, or set of rooms, in any house kept for purposes of prostitution. And it is immaterial whether indecent or disorderly conduct is or is not perceptible from the ^ outside. 1 25 Geo. 2, c. 36, s. 8 ; 21 Geo. 3, c. 49, s. 2. 2 R. V. Barrett, 1 862, L. & C. 263, and see R. v. Stannard, 1862, L. & C. 340, where the whole house was let hi parts to different women as weekly tenants. ■^ I Russ. Cr. 427, see cases ; 7?. v. Piersou, 1705, 2 Lord Raym. 1197 : see also 2 Chitty's Criin. Law, 38. Draft Code, s. 155. Keeping a brothel is now an offence which may he pimished snmmarilj' under 48 & 49 Viet. c. 69, s. 13, see Oke's Synopsis, p. 178. ■t R. V. Rice e as a lia])it of life. Persons who go- al>out collecting alms for a specific purpose, and not as a way of life, are not within the statute. Pohifon v. Hill, 1884, 12 Q. B. D. 306. 152 A DIGEST OF (/.) ^ who, being a pauper, (i.) absconds or escapes from, or leaves any casual ward before he is entitled to discharge himself therefrom ; or (ii.) refuses to be removed to any workhouse or asylum under the provisions of the " Pauper Inmates Discharge and Regulation Act 1871 " (34 & 35 Vict. c. 108) ; or (iii.) absconds or escapes from, or leaves any workhouse or asylum during the period for which he may be detained therein : oi' (iv.) refuses or neglects, whilst an inmate of any casual wai'd, workhouse, or asylum, to do the work or observe the regulations prescribed ; or (v.) wilfully gives a false name, or makes a false state- ment, for the purpose of obtaining relief Article 214. ikjgues and vagabonds. A rogue and vagabond is a person who {a) commits any of the offences in the last Article men- tioned, after having been convicted as an idle and disorderly person; or (b.) pretends or professes to tell fortunes, or uses any subtle craft, means, or device, ^ by palmistry or otherwise, to deceive and impose on any of Her Majesty's subjects ; or ((?.) wanders abroad and lodges in any barn or outhouse, or in any deserted or unoccupied building, or in the open air, or under a tent, or in any cart or waggon, not having any visible means of subsistence, and not giving a good account of himself; or {d.) ^ wilfully exposes to view in any street, road, highway, or public place, or in the window or other part of any shop, 1 34 & 35 Vict. c. 108, s. 7. - 5 Geo. 4, c. 83, s. 4. "^ i.e., " by palmistry, or by contrivances to deceive other than palmistry, provided they are of the same general character as is indicated by the earlier words of the statute," per Pollock, B. , in Monrk \. Hilton, 1877, 2 Ex. Div. 268. In this case the person contacted called himself a *' .Spiritualist," and had a fixed residence. ^ 1 & 2 Vict. c. 38, s. 2. THE CRIMINAL LAW 153 or other building' situate therein, any obscene print, picture, ■or other indecent exhibition ; or (c.) wilfully, openly, lewdly, and obscenely exposes his person in any street, road, or public highway, or in the view thereof ; •or in any place of public resort, with intent to insult any female ; or (/.) wanders abroad and endeavours, by the exposure of wounds or deformities, to obtain or gather alms ; or {g.) goes about as a gatherer or collector of alms, or en- deavours to procure charitable contributions of any nature or kind under any false or fraudulent pretence ; or (A.) runs away and leaves his wife and his or her child or children chargeable, or whereby she or they or. any of them become chargeable to any parish, township, or place ; or (z.) ^ plays or bets * in any street, road, highway, or other ■ open and public place,f at or with any table or instrument of gaming,;|: at any game or pretended game of chance ; or (/) has in his custody or possession any picklock, key, crow, jack, bit, or other implement, with intent feloniously to break into any dwelling-house, warehouse, coachhouse, stable, or outbuilding ; or {h.) is armed with any gun, pistol, hanger, cutlass, bludgeon, or other offensive weajion, or has upon him any instrument with intent to commit any felonious act ; or (/.) is found in or upon any dwelling-house, warehouse, coachhouse, stable, or outhouse, or in any inclosed yard, garden, or ai'ea, for any unlawful purpose ; or (m.) is a suspected person or reputed thief - frequenting 1 36 & 37 Vict. c. 38, s. 3, re-enacts this provision, adding at * "'by way of wagering or gaming," at "j" "or in any open place to whicli the public have or are permitted to have access," and at J •' or any coin, cash, token, or other article used as an instrument of si;ch wageiing oi' gaming. See cases collected in Oke's Synopsis, 6o9. - " A single visit to a place, or once passing through a street, can in no sense be said to be a ' frequenting that ' place or street," Grove, J. , in Clark V. Rug., 1884, 14 Q. B. D. at p. 98. " The mere finding upon one occasion of a man in a puljlic street under circumstances leading to the conclusion that he intended to connnit a felony is not sufficient to satisfy the statute. What amounts to a ' fierpienting ' a street must depend iipon the circum- stances of each particular case; I only say one visit to it does not." Hawkins, J., in ibid. p. 102. .See, too, cases in Oke's Synopsis, 6(51. 154 A DIGEST OF any river, canal, or navigable stream, dock or basin, or any quay, wharf, or warehouse, or any avenue leading thereto, or any street [^ or any highway, or any place adjacent to a street or highway] with intent to commit felony : ^ in proving which it is not necessary to show that the person suspected was guilty of any particular act tending to show his purpose or intent, and he may be convicted if, from the circumstances of the case, and from his known character as proved to the Court or justice before whom or which he is brought, it ap- pears to such Court or justice that his intent was to commit a felony : or - («.) being apprehended as an idle and disorderly person, violently resists any constable or other peace officer, so appre- hending him, and is subsequently convicted of the offence for which he was so apprehended : or (o.) '^ who, being a pauper, wilfully destroys or injures his own clothes, or damages any of the property of the guardians. Article 215. incorrigible rogt'es. ^ An incorrigible rogue is a person who (a.) breaks or escapes out of any place of legal confine- ment before the expiration of the term for Avhich he is conunitted under Article 214 : or (b.) is convicted as a rogue and vagabond after being previously so convicted ; or (c.) being apprehended as a rogue and vagabond, violently resists any constable or peace officer so apprehending him, and is subsequently convicted of the offence for Avhich he was apprehended. 1 34 & 35 Vict. c. 112, s. 15. '- 5 Geo. 4, c. 83, s. 4. 3 34 & 35 Vict. c. 108, ss. 7, 10. 4 5 Geo. 4, c. 83, s. 5. THE CRIMINAL LAW 155 Article 216. punishment of rogues, vagabonds, etc. ^ Every one convicted before a justice of the peace of being an idle and disorderly person may be imprisoned with hard labour for any term not exceeding one month ; of being a rogue and vagabond may be imprisoned with hard labour for any term not exceeding three months ; of being an incorrigible rogue must be committed to prison and kept to hard labour till the next general or quarter sessions of the peace ; at the said sessions the justices may order such offender to be further committed to prison and to be there kept to hard labour for any term not exceeding one year, and if a "male to be whipped. yJ 1 5 f4eo. 4, c. 83, ss. 3, 4, 5. 156 A DIGEST OF *'PART V OFFENCES AGAINST THE PERSON, THE CONJUGAL AND PARENTAL RIGHTS, AND THE REPUTA- TION OF INDIVIDUALS CHAP. XXI. — Cases ix which In- fliction OF Bodily Injury is NOT Criminal. CHAP. XXII.— Of Culpable Neg- ligence AND OF Duties tending to the Preservation of Life. CHAP. XXIII. —Homicide. CHAP. XXIV. — Murder — Man- slaughter — Attempts to Com- mit Murder — Concealment of Birth. CHAP. XXV.— The Malicious In- fliction OF Bodily Injuries amounting to Felony. CHAP. XXVI.— The Infliction (JF Bodily Injuries not amount- iNt; to Felony. CHAP. XXVII. — Assaults, Ag- gravated and Common, punish- able ON Indictment. CHAP. XXVIII.— Rape, etc. CHAP. XXIX.— Crimes Affect- ing Conjugal and Parental Rights — Bigamy — Abduction. CHAP. XXX. — Offences against Children by Parents and Others. CHAP. XXXI. — Offencf:s aiiainst Paupers. CHxiP. XXXII.— Offences as to Lunatics. CHAP. XXXIIL— Libels on Pri- vate Persons. CHAPTER XXI. GASES IN WHICH INFLICTION OF BODILY IN.JUBY IS NOT CRIMINAL Article 217. exceptions ']"0 rest of part v. The contents of Part V. are to be taken to be subject to the provisions contained in this chapter. Article 218. execution of laavful sentences. ^ The intentional infliction of death or bodily harm is not a crime when it is done in the execution, in the manner pre- * Note VII. See also 3 Hist. Cr. Law, cli. xxvi. aiul xxvii. pp. 1-120. 1 1 Hale, P. C. 497 ; Foster, 267 ; 1 Hawk. P. C. 80 ; 1 East, P. C. 332-4. These authorities contain [inter alia) discussions as to varying the THE CRIMJXAL LAW Ifj' scribed by law by a person whose duty it is to execute it, of a lawful sentence duly passed by a competent Court. A Court which, but for some fomial defect in its authority or in its proceedings, would have had jurisdiction to pass a sentence, is deemed for the purposes of this Article to be a competent Court ; but a Court which has by law no jurisdiction at all over the case in which sentence is passed is not deemed to be a competent Court, and a mistaken belief on the part of the judge, or of the officer who executes the sentence, that it is competent, does not justify or excuse his act. Iliufitrations. (1.) ^ A sits under a commission of gaol delivery. The officer forgets to adjourn the Court at the end of the first day's sitting. This determines the commission. On the following day A sits again, and sentences a felon to death, who is duly executed by B. Neither A nor B is guilty of murder or manslaughter, though the proceedings are irregular. (2.) ^ A, lieutenant or other having commission of martial authority in time of peace, causes B to be hanged by C by colour of martial law. • This is mui'der in both A and C. Article 219. suppressiox of riots. ^ The intentional infliction of death or bodily harm is not a crime when it is done either by justices of the peace, peace form of pimislinient (as by substituting beheading for hanging) little likely to be of pi'actical value. Draft Code, ss. 25 and 28. 1 Per Lord Hale, 1 Hale, P. C. 498. - Coke, 3rd Inst. 52 ; I Hale, P. C. 499, 500. The whole subject of martial law underwent full discussion in connection with the execution of Mr. Gordon by a court-martial in Jamaica in 1865. An elaborate history of the case has lieen published by Mr. Finlason, and the charge to the grand jury, deliveied at the Central Criminal Court by the Lord Chief •Justice of England, has been published in a separate form. I know not whether the charge to the grand jury of Middlesex, delivered b}^ Lord (then Mr. Justice) Blackljurn, has Vjeen published or not. Much informa- tion on the subject will l)e found in Forsj'th's Cases and opinions on Con- stitutional Law, pp. 484-563. Mr. Forsyth prints, inter alia, an opinion given by the late Mr. Edward James, Q.C. , and mj^self, in 1866, see ])p. 551-563 ; and see Fh!/iip.s v. Eyre, 1870, L. R. 6 Q. B. 1. ■"' See the charge of Tindal, C.J. , to the grand jury of Bristol in 1832, 158 A DIGEST OF •officers, or private persons, whether such persons are, and whether they act as, soldiers under military discipline or not for the pui-pose of suppressing a general and dangerous riot which cannot otherwise be suppressed. Article 220. prevention of the commission of crimes and arrest of criminals. The intentional infliction of death or bodily harm is not a ci-ime when it is done by any person 1 in order to prevent the commission of treason, murder, burglary, rape, robbery, arson, piracy, or any other felony in which the traitor, felon, or pirate so acts as to give the person who kills or wounds him reasonable ground to believe that he intends to accomplish his purpose by open force ; * or, in order to arrest a traitor, felon, or pirate, or retake or keep in lawful custody a traitor, felon, or pirate who has escaped, or is about to escape, from such custody, although such traitor, felon, or pirate offers no violence to any person ; ^ or, when it is done by a constable, or other officer of piinted in a note to Jf. v. Pinney, 1832, o C. & P. 254, and quoted and approved in Phillips v. Eyre, sup. (Court of Exchequer Chamber). The proper course in such cases is for the civil magistrate to direct and control what is done, but this is not absolutely necessary. The Riot Act (1 Geo. 1, st. 2, c. 5, see Article 79) authorizes in express terms the dispersion of rioters who continue riotously assembled together for more than an hour after the proclamation made, and indemnifies the persoiis concerned if any of the rioters shoiild be killed ; but this Act appears to be nairower than the common law as laid down by Tindal, C.J. See Draft Code, ss. 49, 50. 1 1 Coke, 3rd Inst. 55 ; 1 Hale, P. C. 486-7 ; Foster, 273 (more fully and satisfactorily) ; I Hawk. P. C. 82 (rather confusedly) ; 1 East, P. C. 271-4 (best and most fully stated) ; I Russ. Cr. 843-52 (taken substan- tially from East). Piracy is not mentioned Ijy the authorities, but see S Geo. 1, c. 24, s. 6. Article 116. Draft Code, s. 54. ' Coke, 3rd Inst. 56 ; I Hale, P. C. 489 ; I Hawk. P. C. 81 ; Foster, 270-1 ; I East, P. C. 298-302. Draft Code, ss. 32-46. 3 Coke, 3rd Inst. 55 ; 1 Hale, P. C. 490 ; I Hawk. P. C. 81 ; 1 East, P. C. 298-302. It must be observed that this Article is confined to the intentional infliction of death or bodily injury. If the death or injury is not an intended or probable consequence of the act, the case is provided for under Articles 23 1 , 243. THE CRIMINAL LAW 159 justice, in order to execute a warrant of aiTest for treason or felony, which cannot otherwise be executed, although the person named in the waiTant offers no violence to any person ; provided, in each of the said cases, that the object for which death or harm is inflicted cannot be otherwise accom- plished. Article 221. ^ private defexce. The intentional infliction of death or bodily harm is not a crime when it is inflicted by any person in order to defend himself or any other person from unlawful violence, provided that the person inflicting it observes the following rules as to avoiding its infliction, and inflicts no greater injury in any case than he in good faith, and on reasonable grounds, believes to be necessary when he inflicts it : — («.) - If a person is assaulted in such a manner as to put him in immediate and obvious danger of instant death or grievous bodily harm, he may defend himself on the spot, and may kill or w(jund the person by whom he is assaulted. (&.) ^ If a person is unlawfully assaulted, (i.) in his own house ; (ii.) * in the execution of a duty imposed upon him by law : (iii.) ^ by way of resistance to the exercise of force which he has by law a right to employ against the person of another ; he may defend himself on the spot, and may use a degree of ^ See Draft Code, ss. .55-65. - Code, .3rd Inst. 55 ; 1 Hale, P. C. 487 ; 1 Hawk. P. C. 82 ; Foster, 273-5 ; 1 Russ. Cr. 844. This case is so nearly coextensive with the first case mentioned in the last Article that East does not notice them separately. Cases, however, may be imagined in which a sudden and violent assault would be no crime, and j'et might be resisted by killing tlie assailant : see Illustration (1). 3 .Staimdforde, 14a; Coke, 3rd Inst. 56; 1 Hale, P. C. 486, &c. ; 1 Hawk. P. C. 87 ; Foster, 275-6 ; 1 East, P. C. 287, 288. ^ In addition to the authorities in the last note, see 1 East, P. C. 294-298, &c. ; 1 Hale, P. C. 489. 160 A DIGEST OF force for that purpose proportioned to the violence of the assault, and sufficient (in case iii.) to enable him not only to repel the attack made upon him, but to effect his original purpose ; but a person using force in the execution of a duty imposed upon him by law, or in order to effect a purpose which he may by law effect in that manner, and not being assaulted, is not entitled to strike or hurt the person against whom he emi^loys such force, merely because he is unable otherwise to execute such duty or fulfil such purpose, except in the cases provided for in Article 220. (c.) ^ If a person is unlawfully assaulted by another with- out any fault of his own, and otherwise than in the cases provided for in clauses (a.) and (h.), but with a deadl}' weapon, it is his duty to abstain from the intentional infliction of death or grievous bodily harm on the person assaulting, until he (the person assaulted) has retreated as far as he can with safety to himself But any person unlawfully assaulted may defend himself on the spot by any force short of the intentional infliction of death or grievous bodily harm ; and if the assault upon him is notwithstanding continued, he is in the position of ^ vSee the authorities quoted fur clauses (a.) aiul (Ik), and esjjecially 1 Hale, P. C. 479-481. The qualification at the end of this rule is founded on the doctrine that any one may lawfully preyent or suppress by force a breach of the peace or affray (1 Hawk. P. C. 489 ; i?. y. O-vner, 1804, 5 East, 304), from which it would seem to follow that a man who is him- self assaulted may resist his assailant, and on the doctrine that -son asxaiiff demesne is a good defence to an indictment for assault (1 Hawk. P. C. 110). If this were not the law it would follow that any ruffian who chose to assault a quiet person in the street might impose ixpon him the legal duty of riinning away, eyen if he were the stronger man of the two. The passage of Hale appears to me to be applicable oiilj' to cases where deadly weapons are produced liy way of brayado or intimidation, a cause which no doubt often occurred when people hal)itually carried arms and used them on yery slight proyocation. In siich a case it might leasonably l)e regarded as the duty of the person assaulted to retreat leather than draw his own sword, but I cannot think that Hale meant to saj^ that a man who in such a case closed with his assailant and took his SMord frona him would be acting illegally, or that if in doing so the assailant were thrown down and accidentally killed by the fall the person causing his death would be guilty of felony. The minuteness of the law contained in the authorities on which this Article is founded is a curious relic of a time when police was lax and brawls frequent, and when eyery gentleman wore arms and was supposed to be familiar with the use of them. It might, I think, be simplified in the present day with advantage. THE CRIMINAL LAW 161 a person assaulted in the employment of lawful force against the person of another. (f?.) 1 If two persons quarrel and fight neither is regarded as defending himself against the other until he has in good faith fled from the fight as far as he can ; but if either party does in good ftiith flee from the fight as far as he can, and if, when he is prevented either by a natural obstacle or any other cause of the same nature, from flying further, the other party to the fight follows and again assaults him, the person who has so fled may defend himself, and may use a degree of violence for that purpose proportioned to the violence em- ployed against him. Illustrations. (1.) ^ A, a madman, violently attacks B in such a manner as to cause instant danger to B's life. B may kill A, though A is not committing any ci'ime. (2.) ^ A, an officer, has a warrant to arrest B on civil jDrocess. B flies. A overtakes him, and B assaults A. A may use any degree of violence to B necessary to repel his assault and to arrest him. (3.) ^ A, a trespasser, enters B's house and refuses to leave it. B has a right to remove A by force, but not to strike him even if he cannot otherwise get him out of the house. If on the application of such force A assaults B, B may use any degree of force necessary to defend himself and to remove A from the house. Article 222 lawful force ^ It is not a crime to inflict bodily harm by way of lawful correction, or by any lawful application of force (other than ^ See the authorities for clause (/>. ). 2 This seems to follow directly from the authorities cited. So, if A were under a mistake of fact which B had no time to explain. » 1 P:ast, P. C. 307. 4 1 Hale, P. C. 486. *> It would be inconsistent with the plan of this work to try to enumer- ate all the cases in which force may be lawfully applied to the person of another. In 1 Russ. 767-770 cases will l)e found as to excessiv^e violence in executing legal process ; and see 7?. v. Tranter, 1721 ; Str. 499 ; I Russ. 822 : as to pressing for sea service see 1 Russ, 768 ; as to the powers of M 162 A DIGEST OF those hereinbefore mentioned) to the person of another ; but if the harm inflicted on such an occasion is excessive the act which inflicts it is unlawful, and, even if there is no excess, it is the duty of every person applying the force to take reasonable precautions against the infliction of other or greater harm than the occasion requires. Illustrations. (1.) 1 A, a schoolmaster, beats B, a scholar, for two hours with a thick stick. Such a beating is unlawful. (2.) ^ A kicks B, a trespasser, out of his house, in order to force him to leave it. B is killed. The kick is an unlawful act. (3.) (Submitted.) A, the governor of a gaol, flogs B, a criminal, under the sentence of a court. It is A's duty to cause the surgeon of the gaol to be in attendance to see that no unin- tended injury is inflicted on B. Article 223. superior orders to employ force. In all cases in which force is used against the person of another, both the person who orders such force to be used and the person using that force are responsible for its use, and neither of them is justified by the circumstance that he acts in obedience to orders given him by a civil or military supe- rior, but the fact that he did so act, and the fact that the order was apparently lawful, are in all cases relevant to the question whether he believed, in good faith and on reasonable grounds, in the existence of a state of facts which would have justified what he did apart from such orders,^ or which might justify his superior officer in giving such orders. captains in the merchant service see R. v. Lecjgett, 1838 ; 8 C. & P. 191 ; I Russ. 773 ; as to the correction of children and servants see I Russ. 773- 778. See Draft Code, s. 66. 1 R. V. Ilophij, 1860, I Russ. Cr. 776 ; 2 F. & F. 202. •^ Wild's Case, 1837, 1 Russ. Cr. 686 ; 2 Lewin, 214. 3 As to this see 1 Hist. Cr. Law, 205. THE CRIMINAL LAW 163 Illustrations. (1.) 1 A, a marine, is ordered by his superior officer on board a man-of-war to prevent boats from approaching the ship, and has ammunition given him for that purpose. Boats persisting after repeated warnings in approaching the ship A fires at one and kills B. This is murder in A, although he fired under the impression that it was his duty to do so, as the act was not necessary for the preservation of the ship [though desirable for the maintenance of discipline]. (2.) "^ A, the driver of an engine, orders B, the stoker (whose duty it is to obey his orders), not to stop the engine. The train runs into another in consequence, and C is killed. B is justified by A's order. (3.) ^ (Submitted.) A, a civil magistrate, directs B, a military officer, to order his men to fire into a mob. B gives the order. It is obeyed, and C, a common soldier, shoots D dead. The question whether A, B, and C respectively committed any offence depends on the question whether each of them respectively had reasonable grounds to believe and did in fact believe in good faith either that what they did was necessary to suppress a dan- gerous riot, or in the case of B, that A, or in the case of C, that B, had reasonable grounds to believe and did believe that the order given was necessary to suppress a dangerous riot. A's direction to B, and B's order to C, would not necessarily justify B or C in what they did, but would be facts relevant to the question whether they believed upon reasonable grounds as aforesaid. 1 R. v. Thomas, 1815, 1 Russ. Cr. 732 ; 4 M. & S. 442. 3 R. V. Trainer, 1864, 4 F. & F. 105 ; 1 Russ. Cr. 837, 838. The language of Willes, .J., in this case seems to be a little too wide, unless it is taken in connection with the particular facts. 3 Whether C would commit a military offence if he refused to obey B's order because he rightly thought it unreasonable, is a question which would have to be decided by a court-martial. I should siippose that cases might be imagined in which even a court-martial would hold that a military inferior might and ought to disobey orders on the ground of their illegality. An officer, e.ject. See Draft Code, s. 162. 3 Cases collected in Wharton on Homicide, §§ 87-93, 99, 125, 107-24 ; and see 1 Russ. Cr. 822-840. ^ B. V. Bant, 1865, L. & C. 567. 174 A DIGEST OF which people are likely to pass. It is his duty to take proper precautions against its injuring passers-by. (5.) ^ A, B, and C went to practise with a rifle which carried a mile. A handed a board to B, who in C's presence fixed it in a tree, and they all fired at it at a distance of 100 yards, taking no precautions to prevent mischief to persons in the neighbour- hood. One of the shots killed a boy in a tree aljout 200 yards behind the target. All were held guilty of manslaughter. Article 238. duty of persons doing acts requiring special skill or knowledge. " It is the legal duty of every person who undertakes (ex- cept in case of necessity) to administer surgical or medical treatment, or to do any other lawful act of a dangerous character, which requires special knowledge, skill, atten- tion, or caution, to employ in doing it a common amount of such knowledge, skill, attention and caution. 1 B. V. Salmon d: others, 1880, 6 Q. B. D. 79. My judgment was nearly in the terms of Article 237, and the other judgments were to the same effect. 2 R. V. St. John Long, 1830, 4 C. & P. at 404. {Per Garrow, B.) As to caution, see i?. v. ,SV., John Long, 2nd case, 4 C. & P. at 440 ; see other cases collected in I Russ. Cr. 672-6. Draft Code, s. 162. THE CRIMINAL LAW 175 CHAPTER XXIII HOMICIDE Article 239. homicide defined- — whex a child becomes a human BEING. ^ Homicide is the killing of a human being by a human being. 2 A child becomes a human being within the meaning of this definition, when it has completely proceeded in a living s-tate from the body of its mother, ^whether it has or has not breathed, * and whether the navel string has or has not been divided, ^ and the killing of such a child is homicide, whether it is killed by injuries inflicted before, during, or after birth. ^ A living child in its mother's womb, or a child in the act of birth, even though such child may have breathed, is not a human being within the meaning of this definition, and the killing of such a child is not homicide. Article 240. KILLING defined. '' Killing is causing the death of a person by an act or omission but for which the person killed Vv-ould not have 1 Draft Code, ss. 165, 166. 2 B. V. Poidton, 1832, o C. & P. 329. 3 R. V. Brain, 1834, 6 C. & P. 349. * R. V. Trilloe, 1842, Car. & Mar. 650. ^ Authorities collected, 1 Riiss. Cr. 646. « R. V. Enoch, 1833, 5 C. & P. 539, and see note to the case ; R. v. Wri. ) or (f.) ; or {c.) - who with intent to enable himself or any other person to commit, or with intent to assist any other person in com- mitting, any indictable offence, ^attempts by any means whatsoever to choke, suffocate, or strangle any other person, or attempts by any means cal- culated to choke, suffocate, or strangle, to render any other person insensible, unconscious, or incapable of resistance ; ■^or ^'administers to any person any chloroform, laudanum, or other stupefying or overpowering '■' matter "^ or attempts to do so ; (/.) '' or who burns, maims, disfigures, disables, or does any grievous bodily harm to any joerson by the explosion of gun- powder or other explosive substance ; (^.) ^or who, with intent to burn, maim, disfigure, or dis- able any person, or to do some grievous bodily hann to any person, causes any gunpowder or other explosive substance to explode, or sends or delivers, or causes to be taken or received by an\" person, any explosive substance or other dangerous or noxious thing, or puts or lays at any place or casts or throws at or upon or otherwise applies to any person any corrosive fluid or destructive or explosive substance ; 1 39 & 40 Vict. c. 36, s. 193. 2 24 & 25 Vict. c. 100, ss. 21 & 22. 3 Ibid. s. 21. An oflfender against tliis section is lial)le, if a male of whatever age, to be thi-ice privately whipped in addition to the othei' pmiishments specified above : 26 & 27 Vict. c. 44, s. 1, and see Article 12 (c?. ), as to the manner of inflicting the punishment. The words "unlaw- fully and maliciously "' do not appl}^ to this section. ■* Ibid. s. 22. The word " maliciously" does not apply to this .section. ^ " Applies or administers to, or causes to be taken by, or attempts to apply or administer to or attempts to cause to be administered to or taken by.-" ^ " Drug, matter, or tiling. 7 24 & 25 Vict. c. 100, s. 2S, W. 8 Ibid. s. 29, W. THE CRIMINAL LAW 197 {h.) 1 or who, with intent t(j endanger the safety of any person travelling or being upon any railway, puts or throws - anything upon or across any railway, or takes up, removes, or displaces any rail, sleeper, or (jther matter or thing belonging to any railway, or turns, moves, or diverts any points or other machinery belonging to any railway, or makes or shows, hides or removes, any signal or light upon or near any railway, or does or causes to be done any other matter or thing : {i.) 3 or who * throws ^ anything at any ^ carriage used ujDon any railway with intent to injure or endanger the safety of any person therein or thereon, or in or upon any other *' carriage forming part of the same train ; (/) *" or who prevents or impedes any person being on board of or having quitted any ship or vessel in distress, wrecked, stranded, or cast on shore, in his endeavour to save his life, or prevents and impedes any person in his endeavour to save the life of any person so situated ; (^^) ^ or who, being a woman with child, unlaAvfully ad- ministers to herself any poison or other noxious thing or unlawfully uses any instrument or other means whatsoever with intent to procure her own miscarriage ; {I.) ^or who, with intent to procure the miscarriage of any woman, whether she be or be not with child, unlawfully ad- ministers to or causes t(j be taken by her any poison or other 1 24 & 25 Vict. c. 100, s. 32, W. - " Anv wood, stone, or other matter or thing."' ■^ 24 & 2o Vict. c. 100, s. 33. ^ Throws, or causes to fall, or strikes at, against, into, or ui)on. •' Any wood, stone, or other matter or thing. " Engine, tender, cariiage, or trnck. 7 24 &25 Vict. CflOO, s. 17. ® Ibid. s. 58. A person who gives another a drug to l)e taken in the absence of the giver "causes it to be taken,'" and, it would seem, "ad- ministers" it, though absen-t when it is taken : R. v. Wilson, 1856, D. & B. 127, and cases refei-red to in the argument ; also U. v. Farrov, 1857, D. & B. 164. '•* Ibid. s. 58. A conspiracy to procm-e abortion may be an offence Ijoth bj- the woman on whom an aboition is to be piocured and In' men with wliom slie consj)ires to procure it, although the woman is not pregnant ; /A v. Whitchurch, 1890, 24 Q. B. D. 420 : 16 Cox, C. C. 743 ; ef. /.'. v. Riii;/, a,nd Ji. v. Broicii, ante, p. 41, n. 4. 198 A DIGEST OF ^ noxious thing, or unlawfully uses am' instrument or other means whatsoever with the like intent. Article 258. blowing up buildings and ships with intent to injure — fourteen years penal servitl'de. - Every one is guilty of felony, and is liable on conviction to fourteen years penal servitude, who, with intent to do any bodily injury to any person, unlawfidly and maliciously places or throws any gunpowder or other explosive substance in, into, upon, against, or near any building, ship or vessel, whether or not any explosion takes place, and whether or not any bodily injury is effected. Article 259. administering poison so as to endanger life or cause harm — ten years penal servitude. ^" Every one is guilty of felon}', and is liable upon convic- tion to ten years penal servitude, who unlawfully and maliciously administers to, or causes to be administered to, or taken by any other person any poison or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm. 1 A thing not otherwise noxious may be noxious if administered in ex- cess, bnt some things are so commonly noxious (arsenic, e.//. ) that perhaps the administration even of a quantity too small to do harm might be held to constitute the offence punished by this section if there were an intent to procure miscarriage. See R. v. Cram-p, 1880, 5 Q. B. D. 307 ; also R. V. Isaacs, 1862, L. & C. 220, and A', v. fle,nia/i, 1877, 13 Cox, C. C. 5-17. 2 24 & 2o Vict. c. 100, s. 30, \V. ; and see 4() Vict c. 3, Art. 418, jwsf. 3 Ibid. s. 23. THE CRIMINAL LAW 199 CHAPTER XXVI ' THE INFLICTION OF BODILY INJURIES NOT AMOUNTING TO FELONY Article 260. maliceous wounding and similar acts punishable with five years penal servitude. Every one commits a misdemeanor, and is liable to five years penal servitude, who («.) ^ unlawfully and maliciously wounds or inflicts any grievous bodily harm upon any other person either with or without any weapon or instrument ; (h.) ^ or Avho unlawfully and maliciously administers, or causes to be administered to or taken b}^ any other person,, any poison or other destructive or noxious thing with intent to injure, aggrieve, or annoy such person ; {c.) ^ or who unlawfully supplies or procures any poison or other noxious thing, or any instrument or thing whatsoever,, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child (^ even if the intention so to use the same exists only in his own mind,, 1 Draft Code, Part xviii. ss. 188-202. '■^ 24 & 25 Vict. c. 100, s. 20. " Maliciously " in this section covers all cases in which a person wilfully and without lawful excuse does that which he knows to be likeh" to injure another : li. v. Martin, 1881, 8 Q. B. D. 54. It applies to cases in which a man strikes at one person maliciously and wounds another accidentally : R. v. Latimer, 1886^ 17 Q. B. D. 359 ; R. v. Hunt, 1825, I Moo. C. C. 93. •^ lljid. s. 24. An intent to excite sexual passion is within this jirovision : It. V. Wilkius, 1861, L. & C. 89. This case was not ai-gued, nor were I'easons given for the judgment. The facts were that the thing adminis- tered was likely to cause and did cause injury and annoyance. ■* I1)id. s. 59. To supply a thing which is not noxious with the intent mentioned is not within the section : R. v. Ixaacn, 1862, L. & ('. 220. ■' R. V. HiUmaii, 1863, L. & C. 343. 200 A DIGEST OF and is not entertained by the woman whose miscarriage he intends to procure). (d.) ^ or who, being legally liable either as a master or a mistress, to provide for any apprentice (w servant necessary food, clothing, or lodging, wilfully and without lawful excuse refuses or neglects to provide the same, or unlawfully and maliciously does, or causes to be done, any bodily harm to such apprentice or servant, so that the life of such appren- tice or servant is endangered, or that his health has been or is likely to be permanently injured ; (c.) - or who ^ sets any spring-gun, man-trap, or other engine calculated to destroy human life or inflict grievous bodily harm, with the intent that the same ^ or whereby the same may destroy or inflict grievous bodily harm upon a trespasser or other person coming in contact therewith. Every person is deemed to have set any of the above- mentioned engines who, when it has been set by any other person in any place then in or afterwards coming into the possession or occupation of the person first mentioned, permits it to continue so set with the intent aforesaid. Provided that this clause does not extend to any gin or trap usually set with the intent of destroying vermin, or to any .spring-gun, man-trap, or engine, set from sunset or sunrise in a dwelling-house for the protection thereof. Article 261. negligent acts punishable with tavo years impris(j\ment. Every one is guilty of a misdemeanor, and liable to two years imprisonment with hard labour, (a.) ^ who by any unlawful act, Avilful omission, or neglect, 1 24 & 25 Vict. c. 100, s. 26. - Ibid. s. ,31. •" " Sets or places or causes to be set or placed." ■* The words " or whereby the same " in the corresponding section of the preceding statute 7 & 8 Geo. 4, c. 18 were lield, upon demurrer in an action for the value of a dog, not to create an oflf'ence wliei'e theie Avas no intent. Jordinx. Crump, 1841, 8 M. & W. 782. It seems unlikely that this ruling would now be followed in a criminal prosecution. ^ 24 & 25 Vict, c 100, s. 34. THE t'RIMIXAL LAW I'Ol endangers, or causes to be endangered, the safety- of any person conveyed or being in or upon a railway, or aids or assists therein, (6.) ^ or who, having the charge of any carriage or vehich/, by wanton or furious driving or racing, or other wilful mis- conduct, or by wilful neglect, does or causes to be done any bodily harm to any person whats(jever. (c.) - or who, being an engine-driver, guard, porter, or y o & ti Vict. c. oo, s. 17. 202 A DIGEST OF ' CHAPTER XXVII 1 assa ults aggba va ted and common punishable on indictment Article 262. assault and battery and assault defined. An assault is {a.) ^ an attempt unlawfully to apply any the least actual ■" force to the person of another directly or indirectly, (h.) the act of using a gesture towards another giving him reasonable grounds to believe that the person using that gesture meant to apply such actual force to his person as aforesaid, (c.) the act of depriving another of his liberty, in either case without the consent of the person assaulted, or with such consent if it is obtained by fraud. * It is no defence to a charge or an indictment for an indecent assault on a young person under the age of thirteen to prove that he or she consented to the act of indecency. A battery is an assault whereby any the least actual force is actually applied to the person of another, or to the dress worn by him, directly or indirectly. 1 Draft Code, Part xix. ss. 203-6. 2 See Article 43 for a definition of an attempt. "• 1 Russ. Cr. 956 ; I Hawk. P. C. 100. A most ela)jorate definition of " force" is given in the Indian Penal Code, s. 350, as the fonndation for a definition of assault, s. 351. The definition is almost more mathematical than legal. It begins thus : "A pei'son is said to use force to another if he causes motion, change of motion, or cessation of motion to that other," &c. , &c. It is impossible not to ask why, if force is to be defined, motion should be left undefined. It is, I think, hard!}' too great a demand on the candour of a reader to suppose that he will see that a man who withdraws a chair on which a person is about to sit down, causing him thereby to fall to tlie ground ; or who whips a horse on which he is sitting, and so makes him run away with his rider ; or who- breaks a hole in ice in front of a skater, and so causes him to fall into the water — "applies actual force to his person indirectly." 4 43 & 44 Vict. c. 45, s. 2. THE CRIMINAL LAW 203 Provided that .such acts as are reasonably necessary for the common intercourse of life, are not assaults or batteries if they are done for the pui-pose of such intercourse only and with no greater force than the occasion requires. No mere words can in any case amount to an assault. IllMHtrations. The following are cases of assault and batteiy : — (1.) ^A cuts B's dress whilst B is wearing it, but without touching or intending to touch any part of B's person. (2.) "^ A sets a dog at B, which bites B. (3.) ^ A man professing to act as a medical adviser fraudulently induces a girl to allow him to undress her, by falsely alleging that it is necessaiy for medical reasons to do so. (4.) *A touches B, a boy of eight, in a grossly indecent manner, B acquiescing in ignorance of the nature of the act. (5.) ^ A induces B to permit him to have connection with her by pretending to be her husband. (This is now also rape, by statute 48 & 49 Vict. c. 69, s. 4.) The following are cases of assault without battery : — (6.) '^ A strikes at B with a stick without hitting him. (7.) '^ A aims a pistol at B which A knows is not loaded, but which B believes to be loaded. In the following cases no assault or battery is committed : — (8.) A lays his hand on B to attract his attention. (9.) A, falling down, catches hold of B to save himself. (10.) A crowd of people, going into a theatre, push and are pushed against each other. 1 R. V. Day, 1845, 1 Cox, C. C. 207. 2 1 Russ. Cr. 9,)8, gives several cases of this sort. - R. V. i?o.s//t.s7.;, 1 Russ. Cr. 959 ; and see R. v. Ca-sr, 1850, 1 Den. C. C. 580. 4 R. V. Lork, 1872, 2 C. C. R. 10, and see /.'. v. Barraft, 1873, 2 C. C. R. 81. ^ R. V. Williams, 1838, 8 C. & P. 286. The prisoner was sentenced to thi'ee years imprisonment with hard labour, no doul)t on the ground that the assault was indecent. The maximum punishment would now be two years hard labour. See Article 267 [d)- « 1 Hawk. R C. 110. " R. V. >S7. Geor[ielongs." These offences are also punishable summarily. THE CRIMINAL LAW 221 having the custody, charge, or care of any child under the age of sixteen years, wilfully assaults, ill-treats, neglects, abandons, or exposes such child, or causes such child to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause such child unnecessary suffering or injiny to its ^ health. Article 285. cruelty to children by interested person. -If it is proved that a person indicted under the 1st section of the Prevention of Cruelty to Children Act, 1894, (Art. 284) was " interested in any sum of money accruable or payable in the event of the death of the child, and knew that such sum of mone}^ was accruing oi' becoming payable, such person is liable, upon conviction, to penal servitude for any term not exceeding five 3-ears in lieu of any other penalty, or to a fine of two hundred pounds. Article 286. abandoning children under two. Every one commits a misdemeanor, and is liable upon conviction thereof to five 3'ears penal servitude, ^ who unlawfully abandons or exposes any child being under the age of two years, whereby the life of such child is endangered or its health has been or is likely to be permanently injured. 1 It is enacted (s. I, subs. [1]) that "injury to or loss of sight, or hearing, or limb, or organ of the body " is injury to a child's health. It is probable that injury to or loss of one of the other senses would be hehl to be so. Neitlier " limb " nor " organ " is defined. 2 57 & 58 Vict. c. 41, s. 1, subs. (3). ^ A person is interested in such money " if he has any share in or any benefit from the payment of that money, thougli lie is not a person to wliom it is legally payable." S. 1, subs. (4). 4 24 & '2.5 Vict. c. 100, s. 27. Part of sect. 2G refers to the same subject. See Art. 260 {d. ). 222 A DIGEST OF The words " abandoned " and " expose " include a wilful omission to take charge of the child on the part of a person legally bound to do so, and any mode of dealing with it calculated to leave it exposed to risk without protection. Ilbisfration^. (1.) 1 B, A's wife, living upart from A, leaves C their child, nine months old, lying in the road outside A's door. A, know- ing its position, lets it lie there from 7 p.m. till 1 a.m. A's mother, D, knowing the child is there, and being in her house, acts in the same way as A. A has abandoned and exposed C, but D has not, as she was under no legal obligation to take chai'ge of C. (2.) ^ A sends B, her child five weeks of age, packed up in a hamper as a parcel, by railway, to C, B's putative father, giving directions to the clerk to be very careful of the hamper, and send it by the next train. The child reaches C safely. A has aban- doned and exposed B. R. V. Whife, 1871, 1 C. C. R. 311. /.'. V. Falkingham, 1870, 1 C. C. R. 2-22. THE CRIMINAL LAW 223 CHAPTER XXXI OFFEXCES COXCERXIXG PAUPERS Article 287. promoting marriages ^ Every officer of any parish, union, or place is guilty of a misdemeanor who endeavours to induce any person to con- tract a marriage by threat or promise respecting any application to be made or any order to be enforced mth respect to the maintenance of any bastard child. Article 288. desertiox of paupers. ^ Every one is guilty of a misdemeanor and liable to a fine not exceeding ten pounds, and in default of pa}T.nent to imprisonment for three months, who being employed in the execution of a warrant duly issued under the authority of 24 and 25 Vict. c. 76 or 8 and 9 Vict. c. 117. (relating to the removal of paupers out of England) wilfully deserts any person mentioned therein before he or she is conveyed to the place of destination. ^ 7 & 8 Vict. c. 101, s. 8. 2 26 & 27 Vict. c. 89. s. 4. 224 A DIGEST OF CHAPTER XXXII "^ OF FENCES AS TO LUNATICS AND ASYLUMS Article 289. offences committed in respect of lunatics. Every person is guilty of a misdenieanor who ^ («.) except under the provisions of this Act receives or lUnMrations. The following are instances of defamatory matter : — ^ A question suggesting that illegitimate children were born and murdered in a nunnery ; "^ " A adds to his other vices ingratitude " ; ^ " A will not play the fool or the hypocrite " (meaning that he would) ; ^ "A has the itch, and smells of l>rimstone." '^ An imputation that A (a clergyman) poisoned foxes in a hunting country and hung them by the neck, and was himself hung in efSgy for so doing. Article 294. publication defixed. . ^ To publish a libel is to deliver it, read it, or communi- cate its purport in any other manner, or to exhibit it to the person libelled, or any other person, "^ j)rovided that if the person making the publication shows that he did not know, and had no opportunity of knowing, the contents of the libel, or that the newspaper or other publication of which it fonns part was likely to contain libellous matter, his act is not deemed to amount to a publication. ^ A libel published in the ordinary course of the business of any person whose trade it is to deal in articles of the kind to which the libel belongs, is deemed to be published, not 1 R. V. Czathercole, 1838, 2 Lew. C. C. at p. 2oo. ■^ Cox V. Lee, 1869, L. R. 4 Ex. 284. ■' 1 Hawk. P. C. 543. ^ Villar-s V. MouMeij, 1796, 2 Wils. 403. ■'' R. V. Coojyer, 1846, 8 Q. B. 533. I think it might, under special circumstances, be a libel to saj^ of a person a tiling apparent!}" quite inoffensive. Suppose, for instance, a man wrote of another "his name is A," meaning that his real name was A, and that the name of B, by which he passed, was falsely assumed, would not this he a libel? but cf. Cajjitaf and Counties Bank v. Henty, 1882, 7 App. Cas. 741. « R. V. Burdeff, 1820, 4 B. & Aid. 95. A liljel puljlished to the person libelled is a misdemeanor, Ijecause it tends to a Ijreach of the peace, but it is not actionable, as it cannot injure the reputation of tlie person libelled. 7 Einmens v. Pott/e, 1885, 16 Q. B. D. 354. * Cases in Folkard's .Starkie, 451-454; and especially A*, v. Ahnorr- 1770, 5 Burr. 2686. •230 A DIGEST OF only by the person who actually sells or exhibits it, but also by his master if his master has given him general authority to sell or exhibit for his master's profit articles of that kind. ^ Provided that whenever, upon the trial of any person for the publication of a libel, evidence has been given which establishes a presumptive case of publication against the defendant by the act of any other person by his authority, the defendant may prove that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part. ^ If the proprietor of a newspaper or other periodical work gives general authority to an editor to manage the paper, it is a question of fact whether the proprietor authorized the editor to publish the libel which is the subject of the indict- ment or information. Authorization is not to be presumed from the mere fact that the general control of the paper was left to the editor, but may be inferred from circumstances showing that the proprietor permitted the editor to publish libels, or was indifferent as to whether libels were published by him or not. Illustrations. (1.) ^ A delivers to B an open letter, of which A is the author, containing matter defamatoiy of C. A has published a lil^el. (2.) ^ A posts to B a sealed letter, of which A is the author, and which contains a libel on C. It seems that the posting of the letter is in itself a publication {qucere). (3.) ^ The postman delivers to B the letter mentioned in the last illustration. The postman has not published the letter, but A has. (4.) A bookseller's shopman sells a libellous book over the counter in the ordinary course of business ; both the shopman and the bookseller have published the libel. 1 6 & 7 Vict. c. 96, s. 7. Probably the effect of such pi'oof would be to excuse the master, though the Act does not say so. See R. v. Almon supra as to the rule before the statute. ^ R. V. Holhrook, 1878, 4 Q. B. D. 42. ^ All these Illustrations are founded on R. v. Burdttt, 1820, 4 B. & Aid. 95. (1) is assumed by all the judges ; (2) is doubted by Bayley, J., p. 153 ; (3) is given by Best, J., p. 126. THE CRIMINAL LAW 231 Article 295. when a libel is malici(7us. ^ The publication of a libel is malicious in every case which does not fall within the provisions of some one or more of the seven articles next following. Article 29G. PUBLICATION OF 'J'HE TRUTH. - The publication of a libel is not a misdemeanor if the defamatory matter is true, and if the publisher can show that it was for the public benefit that such matter should be published. Illustration. ^ A writes of B, " Many years ago B committed immoral acts." The imputation is true. This is not a libel if the publisher can show that it was for the public beuefit that it should be published. Article 297. publication of ^matter honestly believed to be true. ■* The publication (jf a libel is not a misdemeanor if the defamatory matter published is honestly believed to be true, 1 In BromcKjey. Frosxer, 1825, 4 B. & C. 247, which is a leading case on tlie subject, Bay ley, J., says, "Malice ... in its legal sense means a wrongful act done intentionally and without just cause or excuse." From the nature of the case tlie publication of a libel must be an intentional act. The next seven Articles sum up the different states of fact which have l)een held to constitute " just cause or excuse " for publishing libels. In Bromage v. Pronmr and many other cases, much is said of malice in law and malice in fact, of privileged publications, &c. , &c. ; but a sufficiently simple and intelligible result has at last been reached by very <-ircuitous roads. See Note X. '^ Effect of 6 & 7 Vict. c. 96, s. 6. ■' R. V. Newman, 1853, IE. & B. 558 ; and see D. & P. 85. •* See Folkard's Starkie, ch. xi. 283-329. I have gone carefully through these forty-six pages twice or more, and I cannot see that they contain anything V)eyond this j)rinciple and rather obvious illustrations of it expressed in a very complicated way. The leading case on the subject is HarrUon v. Bmh, 1855, 5 E. & B. 344. 232 A DIGEST OF b}' the person publishing it, and if the relation between the parties by and tt) whom the pnblication is made is such that the person publishing is under any legal, moral, or social duty to publish such matter to the person to whom the publication is made, or has a legitimate personal interest in so publishing it, provided that the publication does not exceed either in extent or in maimer what is reasonably sufficient i'ov the occasion, ^and provided that the person who publishes is not in fact actuated in so doing by any indirect motive. When the existence of the relation establishing the duty has been proved, the burden of proving that the statement was not honestl}' believed to be true, and that the defendant was in fact actuated by some indirect motive (both or either) is upon the prosecutor. Ill II sf rational. (1.) " A being asked the character of B, who had been in his service, by C, who is about to engage B as a servant, writes of B in a letter to C, the words " B is a drunkard and a thief." If A honestly and on i-easonable grounds believes that B is -a drunkard and a thief, though in fact he is neither, this is not a libel. If A published this letter in a newspaper it would he a libel. As soon as the circumstances under which the letter was written are proved or appear the burden of proving that A did not honestly and on re-isonable grounds believe B to be a drunkard and a thief is upon B in a prosecution or action by B. (2.) '^ A, the i^rivate secretary of a general, being directed by the general to g\\e an inspecting officer information as to th(" discipline of a body of troops, writes a letter to the inspector, in which he says that B, who had formei'ly commanded the troops, attempted to excite a mutiny when he was remo^ ed from his command. This is not a libel, though false, if A honestly l)e- lieved it to be true, and if it was relevant to the sulijeet ack to the cart, puts them into the cart, and drives it back to B. The cart is throughout in B's possession, Vjut in A's custody. The coals are in A's possession whilst he is carry- ing them on his back to the cart, but as soon as they are de- posited in the cart they are in the possession of B, though both coals and cart continue to be in the custody of A. (9.) ^ A, B's servant, obtains by false pretences B's money from C, another of B's servants. The money after such obtain- ing is still in B's possession. (10.) 2 A, B's servant, obtains by false pretences from C, B's cashier, the property in coins which belonged to B till C gave them to A. The possession of the coins is in A. (11.) ^ A, B, and C are all servants to D. D's customers pay money to C, who pays it to A, who pays it to B. B, A, and C each keep separate accounts of their receipts and payments, so as to be checks on each other. Money of D's paid by C to A is in A's possession, and not merely in his custody. Article 807. special owner. "* Every person to whom the general owner of a movable thing has given a right to the possession as against the general owner is said to be the special owner thereof, or to have a special property therein, and such special property is not divested if the special owner parts with the possession under a mistake. Article 308. possessor special owner as against stranger. Every person who has obtained by any means the posses- •sion of any movable thing is deemed to be the special owner 1 R. V. Coo]ct, 1S71, I C. C. R. 295 ; and see R. v. Robins, 1854, Dear. 418. ^ R. V. //. Thovipmu, 1862, L. & C. 233. 3 R. V. JIaxfer.s, 1848, 1 Uen. C. C. 332. Mr. Greaves disapproves of this decision, and thinks that in such a case the money would be in the master's possession as soon as the first servant received it on his account. R. V. Murray, 1830, Moo. C C. 276, perhaps favours this view, but the whole doctrine of possession is so arbitrary and unreal that it is hard to •say that one view is better or worse tlian anothei-. ■» R. V. VhicfMt, 1852, 2 Den. 464. 246 A DIGEST OF thereof, as against any person who cannot show a better title thereto. IUHsfr((fi(»is. (1.) ^ A finds a bezoar stone in the street and shows it to B, a jeweller, to ascertain its value. B keeps it. A has a right to the stone as against B. (2.) " A steals B's watch. C picks A's pocket of the watch. C steals from A. Article 809. taking and carrying away. A thing is said to be taken and carried away when every part of it is moved from that specific portion of space which it occupied before it was moved (although the whole of it may not be moved from the whole of the space which it occupied), and when it is severed from any person or thing to which it was attached in such a manner that the taker has, for however short a time, complete control of it. An animal is said to be taken and driven or led away when it is caused to move from the place where it was before. / // • , , J 1 lust rations. (1.) ^ A removes a parcel from one end of a waggon to another. This is a taking and carrying away. (2.) * A lifts a swoi'd partly out of its scabbard. A has taken and carried away the sword. (3.) ^ A causes a horse to be led out of a stable for liim to mount. A has led away the horse. (4.) *" A, a postman, instead of delivering a letter in due course, or bringing it back in his pouch, which would be his duty if he could not deliver it, puts it in his pocket intending to steal it. This is a taking and carrying away. 1 Armory v. Ddamirie, 1722, 1 S. L. C. 385. - Founded on 1 Hale, P. C. 507- ■■'- Coslefs Case, 1782, 1 Lea. 236. ■» R. V. Walsh, 1824, 2 Russ. Cr. 126 (from MS. of Bayley, J.), and 1 Moo. C. C. 14. Aia odd point would arise if the sword and scabbard were merely twisted round in the jilace which they occupied before thej- were touclied. I suppose this would not be an asportation. ^' R. V. Pitman, 1826, 2 C. & P. 423. « R. V. Poynton, 1862, L. & C. 247. THE CRIMINAL LAW 247 (^5.) ^ A snatches a diamond earring from a lady's ear, tearing it out of the ear ; it drops from his hand into her hair, and is found there ))y her afterwards. A lias taken and carried away the earring. (6.) - Goods are tied to a string, one end of which is fastened to the bottom of a counter. A takes and carries them as far as the string will permit. A has not cai-ried away the goods. (7.) ^ A has gas-pipes in his house running through a meter, such pipes being his property. In order to prevent the gas from passing through the meter he puts a connecting pipe between the pipe leading to, and the pipe leading from, the meter, and so -diverts the gas from its proper course. This is a taking and carrying away of the gas. Article 310. bailment defined. ■ When one person delivers, or causes to be delivered, to another any movable thing in order that it may be kept for the person making the delivery, or that it may be used, gra- tuitously or otherwise, by the person to whom the delivery is made, or that it may be kept as a pledge by the person to whom delivery is made, or that it may be carried, or that work may be done upon it by the person to whom delivery is made gratuitously or not, and when it is the intention of the parties that the specific thing so delivered, or the article into which it is to be made shall be delivered either to the person making the delivery or to some other person ap- pointed by him to receive it, the person making the delivery is said to bail the thing delivered, the act of delivery is called a bailment ; the person making the delivery is called the bailor ; the person to whom it is made is called the bailee.^ 1 Lafriers Cane, 1784, 1 Lea. 320 ; R. v. Simpson, 1854, D. & P. 42]. In this case a watch and chain snatched out of one buttondiole caught in another. - 2 Kast, P. C. ").JG. - A'. V. While., 18r)3, D. & P. 203. * Co(](jn V. Btraanl, 1702, 2 S. L. C. 201, for baihnent in general. For the application of the doctrine to criminal law, R. v. Hassefl, 18GI, L. & C. 58. It seems that a married woman may be a l)ailee : R. v. Jiohaon, 1861, L. & C. 93. Since the Married Woman's Property Act (33 & 34 Vict. c. 93) it would seem clear that in many cases she can.' 248 A BIG EST OF Article 311. offences relating to property co^niltted bv and against married avomen. ^ Every married woman, whetlier uiarricil before, on, or after 1st January, 1883, has in her own name, against all persons whomsoever, including her husband, the same remedies and redress by way of criminal proceedings for the protection and security of her own separate property as if such property belonged to her as a feme sole, provided that no criminal proceeding can be taken by any wife against her husband by virtue of the Married Woman's Property Act 1882, while they are living together as to or concerning any property claimed by her, nor while they are living apart as to or concerning any act done by the husband while they were living together concerning property claimed by the wife, unless such property has been wrongfully taken by the husband when leaving or deserting, or about to leave or desert his wife. - A wife doing an}' act with respect to the projierty of her husband which, if done by the husband with respect to pro- perty of the wife, would make the husband liable to criminal proceedings by the wife, under this article is in like manner liable to criminal proceedings by her husband. 1 45 & 46 Vict. c. 75, s 12. 2 I1)id. s. 16 (see Article 327 below). THE CRIMINAL LAW 249 CHAPTER XXXV ^THINGS CAPABLE OR XOT OF BE IXC STOLEN. Article 812. things capable ov being stolen. Things are or not capable of being stolen acc(jr(ling to the provisions contained in this chapter. Article 818. MOVABLE things — LAND — THINGS FIXED TO LAND. ■' All movable things are capable of being stolen, whetiier they are naturally movable or whether they were, before being severed therefrom, a part of, or built upon, or growing out of, or fixed in a permanent manner to, the soil of the earth. The soil of the earth itself cannot be stolen, by removing landmarks, building so as to make permanent encroachments, or other means of the same kind. Things growing out of, built upon, permanently "attached to, or forming part of the soil, cannot be stolen whilst they continue to be so attached to it or to form part of it, or by the act of severance, ^ except in the cases provided for in Articles 352 and 858 (c) to (//). Article 814. title-deeds and choses in action. •* Documents which in any way relate to the title to real property, and dfjcuments which constitute evidence of any 1 3 Hist. Cr. Law, cli. xxix. pp. 121-17(J. 2 2 Rus.s. Cr. 209-210. •* See also Article 822, para. ('.\). 4 2 Russ. Cr. 217-219. 250 A DIGEST OF right of action against any person, are not capable of being stolen, unless they fall within the terms of Article 349 or the first paragraph of Article 354 : but documents of title to chattels and tokens which represent them are capable of being stolen. lUustrations. {\.)^ An unstamped written agreement for building cottages under which work has been and is being carried on is not capable of being stolen. (2.) - A pawnbroker's ticket is capable of being stolen. Article 315. water — gas — electricity. ^' Running or standing water is not capable of being stolen ■* unless [it seems] it is stored in pipes or reservoirs for the pui-pose of sale or use, in which case it is capable of being stolen, although money penalties are provided for an improper use of it. ^ Gas is capable of being stolen. '' Electricity is capable of being stolen. 1 i?. V. Watt><, 1854, D. & P. 326. ^ a. V. MorrtHon, 1859, Bell, C. C. 158. It has been held that a rail- way ticket is capable of being stolen : R. v. Boidton, 1849, 1 Den. 508. In R. V. Kilham, 1870, 1 C. C. R. "261, it is said that "the reasons for this decision do not verj- clearly appear."' It is, indeed, very liaid to reconcile the decision with the established principle as to " choses in action,'" for what is a railway ticket except evidence of a contract by the railway to carry the holder ? •* " Water is a movable wandering thing, and must of necessity con- tinue common by the law of nature, so that I can only have a temporary transient usufructuary property therein " (Blackstone, 1 Steph. Com. 170-171, llth ed.) As to water in standpipes, see Ferens v. O'Brien, 1883, 11 Q. B. D. 21. * \Vould a man who diew a pail of water out of a reservoii- covering many acres be guilty of theft ? Hardly, I should think. 5 i?. V. Firth, 1869, L. R. 1 C. C. R. 172 ; R. v. White, 1853, D. & P. 203. " 45 & 46 Vict. c. 56, s. 23, and see Art. 353 (/«). THE CRIMINAL LAW 251 Article 316. tame animals and wild animals in captivity. (a.) ^ The following animals are capable of being stolen at common law ; tame animals, whether original]}' wild or not, birds, bees, and silkworms kept respectively for food, labour, or ])rofit, their young and their produce ; hawks kept for sport ; wild animals in a state of captivity kept for food or profit, - but not wild animals kept in a state of captivity for curiosity. (&.) The fVillowing animals are the subject of larceny by statute : ^ dogs, birds, beasts, and other animals ordinaril}' kept in a state of confinement, or for any domestic purpose. (c.) ^ Animals of a base nature are not capable of being stolen either at common law or by statute unless they are ordinarily kept in a state of confinement, or for any domestic purpose, in which case they are the subjects of larceny by statute. ^ An animal capable of being stolen, whatever may be its nature, does not cease to be capable of being stolen because it is permitted at certain times to wander abroad. lUustrations. (1.) ^ The milk of a cow, the wool on a sheep's back, hoiiev in a hive, are the sul^jects of larceny at common law. 1 2 Russ. Cr. 233-239. 2 2 Russ. Cr. 238. =' 24 & 25 Vict. c. 96, ss. 18 and 21. See Article 354. ^ Coke, 3rd Inst. 108, 9 ; 2 Russ. Cr. 234-239. Ferrets, so far as I know, are the only animals to which {<■) has been applied in modern times. In K. V. Seariny, 1818, R. & R. 350, " It appeared in evidence that ferrets ai-e valuable animals, and those in question were sold Ijy the prisoner for 9s. The judges were of opinion (in 1818) that ferrets though tame and saleable could not be the sul)ject of hircenj-." I know not whether a ferret would fall within (/*) or not. It is necessary to mark the distinction between animals which are the subject of larceny at common law and those which are tlie subject of larceny by statute, because it is recognised in several statutes. See 24 & 25 Vict. c. 96, ss. 21, 23, Oke's Synopsis, p. 4(M). 5 2 Russ. Cr. 233-4. 252 A DIGEST OF (2.) ^ Young partridges or pheasants reared under a domestic fowl are regarded as tame, and as such are the subjects of larceny at common law till they become wild. (3.) " Deer in a paddock, rabbits in a hutch, are the subjects of larceny at common law. Bears or monkeys kept in dens are the subjects of larceny by statute. (4.) ^ Young partridges reai'ed under a common hen do not cease, so long as they are practically under tlie dominion of their owner, to he the subjects of larceny at common law ]:)ecause the}' are allowed to wander al:)road. (5.) * Pigeons in a dovecot are the subjects of larceny at common law although they are allowed to tly about. Article 317. wild animals living and dead. ■' Living- wild animals in the enjoyment of their natural liberty, w'hether they have escaped from confinement or not, are not capable of being stolen although they may be game, and although it may be an offence to pursue or kill them ; ^ but the dead body of such an animal is capable of being- stolen, and it becomes the property of the person on Avhoso ground the animal dies.'^ Article 3 is. DEAD bodies. ^The dead body of a human being is not capable of being stolen. 1 R. ShicUe, 1868, I C. C. R. 1 J8 ; K. v. Cory, 1864, 10 Cox, C. C. 23. -' 2 Russ. Cr. 234-238. ■'- R. V. ShkUe, 1868, 1 C. C. R. 158. ^ R. V. Cheafor, 1851, 2 Den. 361. It has not, however, been Jecided that pigeons can be stolen whilst actually fljing about apparently at liberty. I suppose the question would turn on tlie knowledge of the offender that the pigeons were tame. •5 2 Russ. Cr. 236. ^ See Chapter XLIX. Oysters are the subject of larceny by statute ; see Art. 353 (j/), but thev can hardly be called "living wild animals."' 7 Blades v. Higcj-^, 1865, II H. L. C. 621 ; 34 L. J. (CR) 286. But see R. V. Tonmhy, 1870, 1 C. C. R. 315, and Article 322, 3rd paragrapli. * R. V. Hayntfi, 2 East, P. C. 652. Can skeletons and anatomical preparations of parts of dead bodies, or which formerly formed parts of bodies when living, be stolen ? — teeth, for instance, intended to be used as false teeth. THE CRIMINAL LAW Article 319. things abandoned. ^ Things of which the ownership has been abandoned are not capable of being stolen. IlluHtration><. ( 1 . ) - To convert treasure trove before office found is not theft. (2.) ' To convert wi-eck of the sea is not theft [if the owner is unknown]. (3.) * To convert goods absolutely lost to the owner, and as to which there is no reasonable ground for believing that the owner can be found, is not theft. Article 320. things of no value. '' Things of no value to any one are not capable of being stolen, but things valuable to no one but the owner are capable of being stolen. Illustration. ^ The paper and stamps of the notes of a firm of countiy liankers which have been paid by the London correspondent and which are capable of being reissued by the country bankers may be stolen, because they are valuable to the country bankers (as saving the expense of printing new notes), though to no one else. 1 2 East, P. C. 606-7. - .3 Inst. 108. It is however a misdemeanor. See Article 371. ^ I Hawk. P. C. 149, s. 38. This must be understood of wreck of the sea unclaimed, and not of wreck not forming part of or belonging to a vessel in distress, as to stealing which see Article 351 ((/) and Oke's Sj'nopsis, p. 682. Penalties for various offences as to wreck are con- tained in the Merchant Shipping Act, 1894, for the contents of which previous to consolidation see I Oke, p. .614. •* The law as to finding property is more fully stateil in Article 328. = Clarke's Ca.se, 1809, 2 Lea. 1036. 254 A DIGEHT OF CHAPTER XXXVI. * theft in general. Article 821. definition of thef'j\ ^ Theft is the act of dealing, from any motive whatever, unlawfully and without claim of right with anything capable of being stolen, in any of the ways in which theft can be committed, with the intention of permanently converting that thing to the use of any person other than the general or special owner thereof. Provided that the offences defined in Articles 368 and 369 do not amount to theft. The ways in which theft can be committed are specified in Articles 322 to 326, both inclusive. In those articles the word " convert " means such a conversion as is herein- before specified. A claim of right may be founded on a mistake of law. Illustrations. ( 1 . ) - A takes B's horse from his stable and backs him down a coal-pit a mile off, in order to prevent the horse from being identified in the trial of C for stealing it. A steals B's horse. (2.) "^ A, a post-office clerk, drops two letters down a water- closet in order that a mistake which he had made in sorting them might not be discovered. A steals the letters. (3.) ■* A, a servant, gets B's letters from the post-office, and destroys one of them written to B by C, A's mistress, making inquiries of B as to A's character, delivering the rest. A steals the letter. (4.) ^ A, a puddler, throws an iron axle into his furnace in order to increase the apparent amount of iron puddled therein, * 3 Hist. Cr. Law, cli. xxviii. pp. 121-176. 1 n. V. HoUou-ay, 1848, 1 Den. 370. - B. V. Cabbage, 1815, R. & B. 292 ; 2 Russ. Cr. 205. 3 Wynn's Case, 1848, 1 Den. 365. * R. V. Jones, 1846, 1 Den. 188. 5 R. V. Richards, 1844, 2 Russ. Cr. 207 ; 1 C. & K. 532. This case is not altogether easy to reconcile -with R. v. Webb ; see Illustration (9). THE CRIMIXAL LAW 255 on which A's wages depend. The axle, worth bs., is destroyed, though the iron of which it is composed, and which is much less valuable, remains for the owner. A has stolen the axle. (5.) ^ A, without his master's leave, takes his master's corn to feed his master's horses. This was theft till the passing of 26 & 27 Vict. c. 103. (6.) - A gleans corn, not having, but believing himself to have, a legal right to do so. This is not theft. (7.) ^ B, a gamekeeper, takes snares set by A, a j^oacher, and a dead pheasant caught therein. A, honestly believing that the snares and pheasant were his property, and that he had a legal right to them, forces B by threats to return them. This is not robbery, and if no violence were used would not be theft. (8.) * A, believing that B owes him £11, and seeing B receive £1, knocks down B and tries to get the <£7 out of his pocket, saying, " Pay me the eleven sov^ereigns you owe me." This is not robbery, and if no violence were used would not be theft. (9.) " The ore in a mine belongs to adventurers, and is to be excavated by tributers. One set of tributers are to be paid a larger sum in the pound than the other set for the ore excavated b}' them. The ore excavated by each set is placed in a heap Ijy itself. A, one of the triljuters, moves a quantity of ore from tlie heap to be paid for at the lower to the heap to be paid for at the higher rate. A has not stolen the ore. (10.) ^ Workmen in the glove trade are paid accoi'ding to the number of gloves finished by them. A (a workman) takes gloves from his master's warehouse and puts them in the place where the newly finished gloves are put to be counted, so as to increase the apparent number of newly finished gloves, and with intent fraudulently to obtain payment for the gloves so removed from the warehouse. This is not theft. (11.) ^ B uses many bags in his trade, and is supplied with them by C. A, B's servant, takes old bags supplied by C to B from B's house and puts them in a place outside B's house, 1 A'. V. Morjif, 1816, R. & R. 307. ^ 2 Russ. Cr. 203 ; commenting on Woodfall, Landlord and Tenant. - /?. V. Hale, 1828, 3 C. & P. 409. * R. V. Boden, 1844, 1 C. & K. 39.5. 5 R. V. Wehh, 1835 ; 1 Moo. 431. By 24 & -27) Vict. c. 90, s. 39, which re-enacts an earlier Act jjassed in consequence of this decision, this is now felony ; see Article 369. ^ R. V. Poole, 1857, D. & B. 345 ; /.'. v. llolloiray, 1848, 1 Den. 370, is similar in principle. 7 R. V. Manniwj, 1852, 1). & P. 21 ; R v. J fate, 184S, 1 Den. 381, is very like this case. 256 A DIGEST OF whei'e new bags were habitually put by C. C, by concert with A, claims payment for the bags from B as for bags newly supplied. A is guilty of theft, and C is an accessory before the fact. Article 322. theft by taking and carrying a^vay. ^ Theft may be committed by taking and carrying away without the consent of the owTier (even if he expects and affords facilities for the commission of the offence) anything which is not in the possession of the thief at the time when the offence is committed,- whether it is in the possession of any other person or not. If the thing taken and carried away is on the body or in the immediate j)resence of the person from whom it is taken, and if the taking is by actual violence intentionally used to overcome or to prevent his resistance, or by threats of injury to his person, property, or reputation, the offence is robbery. •^ If the thing taken and carried away is for the first time rendered capable of being stolen by the act of taking and carrying away, and if the taking and carrying away is one continuous act, such taking and carrying away is not theft (except in the cases provided for in Articles 852, 353 (c), {(l), {c), (/), {g), (h) ). It seems that the taking and carrying away are deemed to be continuous if the intention to carry away after a reasonable time exists at the time of the taking. Illustrations. (1.) ■* A finds lost property, knowing who the owner is, and converts it. This is theft. 1 Cases in Illustrations. - Property in no one's possession is said to be constructively in the possession of its owner : the object of this fiction is to satisfy a supposed necessity for showing that the taking in theft must be a taking out of some one's possession. ■5 H. V. Tomiley, 1870, 1 C. C. R. 315. •* See Article 32S on "Finding." THE CRIMINAL LAW 257 (2.) ^ A, a trespasser, finds a dead rabbit lying in a wood, of which he is not the owner, and converts it. This is theft. (3.) - A carpenter finds nine hundred guineas in a bureau lent to him to repair, and converts them. This is theft. (4.) ^ A finds iron dropped from some canal boat or other, at the bottom of a canal, from which the water has been let off, and converts it. This is theft. (5.) '^A instigates B, C's servant, to help A to steal money in C's desk. B tells his master, C. C, in order to detect A, tells B to go on with the business, and so arranges matters as to give A and B opportunities to break open the desk and take the money. This is theft in A. (6.) ^ A snatches a bundle from B's hand, and runs away with it. This is theft, and not robbery, as the violence used was only to get possession of the bundle. (7.) "^ A, at a mock auction, knocks down goods to B, who has not bid for them, pretending that she has. On B's offering to go, A says she shall not be allowed to go unless she pays for the goods knocked down to her, which she does. This is theft at least, and perhaps robbery. (8.) " A snatches a sword worn by B. A and B struggle for the sword, and A gets it. This is robbery. (9.) ^ A, in cutting the string by which a basket is tied, with intent to steal it, accidentally cuts the wrist of the owner, who 1 Blades v. Higgs, 1865, 11 H. L. C. 621. 2 Carfwriyht v. Gree7i, 1803, 8 Ves. 405. 3 B. V. Boice, 1859, Bell, C. C. 93. In this case, Pollock, C.B., said the company had ' ' sufficient possession to maintain an indictment foi' larceny." The "possession" in question could scarcely be called actual. * B. v. Egginton, 1801, 2 East, P. C. 666. This was similarly decided by the Romans, " illud qutesitum est cum Titius servum ]Ma?vii sollici- taverit, ut quasdam res domino subriperet et ad eum perferret, et serviis eas ad Mtevium pertulerit. Mavius autem dum vult Titium in ipso delicto deprehendere permiserit servo quasdam res ad eum perferre, utrum furti an ser\i con-upti Judicio teneatur Titius an neutro? Et cum nobis super hac dubitatione suggestum est et antiquoi'um prudentium super hoc altercationes perspeximus quibiTsdam neque furti, neque servi corrupti actionem pitestantibus, quibusdam furti tantummodo : nos hujusmodi calliditati obviam euntes per nostram decisionem sancimus non solum furti actionem sed et sers'i coiTupti contra eum dari." — Institutes, iv. i. 8. •^ Six cases all to this effect are collected in 2 Russ. Cr. 90. 6 R. V. McGralh, 1869, 1 C. C. R. 205. The case of B. v. Morgan, 1854, D. & P. 395, is somewhat similar ; see, too, B. v. Lovell, 1881, 8 Q. B. D. 185, which is to the same effect. 7 Dacies' Case, 1712, 2 East, P. C. 709. 8 B. v. Edwards, 1843, 4 Cox, C. C. 32 ; 2 Russ. Cr. 91. S 258 A DIGEST OF at the same moment tries to seize and keep it. The cut causes the owner to withdraw her hand, and A gets the basket. This is theft, but not robbery, because the actual violence was not intentional. (10.) ^ A, B, and C surround D in such a way as to make resistance by D practically useless, and take his watch, without actual force or threat. This is robbery. (11.) "A mob of seventy persons demands money of a person, threatening, if he refuses, to tear his mow of corn and level his house ; he gives it. This is robbery. (12.)^ A compels B to give him money, by threatening to accuse A of an infamous crime. This is robbery. (13.) * A rips lead oif a church, to the roof of which it is fixed, and carries it away. This is not theft at common law, though it is by statute. (14.) ^ A cuts down timber or growing crops and carries them away immediately. This is not theft at common law, though it is by statute. (15.) ^ A, a poacher, kills a number of rabbits, hides them in a ditch on the ground of the owner of the soil on which they Avere killed, and returns several hours afterwaixls and carries them away, having all along intended to do so at his convenience. This is not theft. Article 323. theft by a servant. e^nibezzlement. Theft may be committed by converting, without the con- sent of the owner, anything of which the offender has received the custody as the servant of the owner, or in order that the thing may be used by the offender for some special tem- porary purpose in the presence or under the immediate control of the owner or his servant. ^ When a clerk, or servant, or person employed in the capacity of a clerk or servant, converts anything received by 1 Hughes's Case, 1825, 1 Lewin, 301. 2 Simo7i's Ca.se, 1773, 2 East, P. C. 731. ^ See cases collected in 2 Russ. Cr. 99-110. Some distinctions arise upon this which I do not notice, because this most odious crime is now dealt with specially by statute. See post. Article 340. •» See authorities collected 2 Russ. Cr. 209-10. 5 Ibid. 6 R. V. Toicnhy, 1870, 1 C. C. R. 315. ^ See Chapter XXXVII. THE CRIMINAL LAW 259 him from another jDerson for his master or employer, he is deemed to have stolen it, but his offence is commonly called embezzlement, and is distinguished from theft for the purposes and in the manner mentioned in Chapter XXXVII. Illustrations. (1.) ^ A carter converts to his own use a cart which he is driving for his master. He commits theft. (2.) '' A is employed by B to take pigs to C to be looked at, and to bring them back to B, whether C wishes to buy them or not. A sells the pigs to some one else, and keeps the money. This is theft. (3.) ^ A sheriff's officer, in possession of goods under a writ of fi. fa., sells part of them. This is theft, as such a person is in the position of a servant. (4.) ■* A guest at a tavern carries off a piece of plate set before him to drink from. This is theft, because A had only a per- mission to use the plate for a special limited purpose. Article 32-i. THEFT BY A FALSE PRETENCE. Theft may be committed by fraudulently obtaining from the owner a transfer of the possession of a thing, the owner intending to reserve to himself his property therein, and the offender intending, at the time when the possession is obtained, to convert the thing without the owner's consent to such conversion.^ Illustrcdions. (1.) ^ A fraudulently persuades B to allow A to take two silver ewers to show to A's master, to choose one if he pleased. A sells the ewers and keeps the money. This is theft. 1 Jiohin,son''.s Casn, 1755, 2 East, P. C. 565. 2 R. V. JIarity, 1840, 9 C. & P. 353. 3 R. V. Emtall, 1822, 2 Russ. Cr. 250. * 1 Hale, P. C. 506. ^ R. V. lloUis, 1883, 12 Q. B. 1). 25, a case of "ringing the changes." ^ R. V. Davenport, 1826, 2 Rnss. Cr. 147. S 2 260 A DIGEST OF (2.) ^ A, by pretending to be B, fraudulently obtains B's goods from C, a carrier, to whom they were intrusted by B. This is theft, as the carrier transferred the possession only. (3.) "^ A fraudulently bargains Avith B for the purchase by A of goods for ready money, and fraudulently induces B to let A have the goods, pretending that he is then about to pay B the price. A then takes away the goods, and does not pay the price. This is theft, as in such cases the purchaser does not mean to transfer the property till the mone}' is paid. (4.) "^ A fraudulently agi'ees to sell a horse at a fair to B for <£8 down and £15 on delivery; B pays A the £8, which A keeps though he never delivers the horse to B. This is theft in A, as B did not mean to part with his property in the c£8 till the horse was delivered to him. (5.) * A fraudulently obtains goods and mone}" from a shop- keeper by pretending to give him diamonds for them. This is not theft, as the shopkeeper means to transfer the property in the goods. (6.) ^ A fraudulently induces B to give her ten sovereigns to conjure with, promising to bring back the ten sovereigns and 170/., to Avhich A says B is entitled. A carries ofif the ten sovereigns. If the ten sovereigns were to be returned, this is theft. If not, it is not theft, but is obtaining money by false pretences. (7.) ^ B paj's five shillings to A on a fraudulent assurance that A will pay forty shillings to B if a certain horse wins a race ; while the race is being run A takes the money away. This is theft whether the horse wins or not. (8.) '' A pi'etends to put three shillings in a purse, and then sells the purse and its contents for one shilling. This is not theft. (9.) ^ A, B's wife, by a forged order gets money standing to 1 E. V. Lowjsheith, 1826, "2 Kuss. Cr. 150 ; 1 Moo. C. C. 137. There are a great number of other cases to the same effect ; e.g. 7?. v. Mr Kale, 1868, 1 C. C. R. 125. 2 Four cases to this effect are stated m 2 Riiss. Cr. 157-159. 3 i?. V. Riisseff, 1892, 2 Q. B. 312. * B. V. Jackson, 1826, 1 Moo. 119. The offence would be obtaming goods by false ^iretences. 5 B. Y. Bunct, 1859, 1 F. & F. 523. 6 B. V. Buchna.-iter, 1887, 20 Q. B. D. 182. 7 B. v. Solomom, 1890, 62 L. T. X. S. 672 ; 17 Cox, C. C. 93. The judges said that if any offence was committed it was obtaining money by false pretences, because the prosecutor intended to part with both the pro- perty in and the possession of his shilling. It seems doubtful whether A's trick amounts to a false pretence, as it also partakes of the nature of a wager that he can deceive B bv his sleight of hand. 8 B. V. Priiife, 1868, 1 C. C. R. 150. THE CRIMINAL LAW 261 B's credit at B's Imnkers. This is not theft frolia the hankers, as the cashier had a general authority to part with the hanker's money, and meant to do so. Article 325. theft by taking advantage of a mistake. ■ ^ Theft may be committed by ^ converting property which the general or special owner has given to the offender under a. mistake which the offender has not caused, but which he knows to be such at the time when it is made, and of which he fraudulently takes advantage. - But it is doubtful whether it is theft fraudulently to convert property given to the person converting it under a mistake of which that person was not aware when he .received it. Illustrations. (1.) ^A having to receive ten shillings from a post-office savings bank, produces to the clerk a warrant for that amount. The clerk referring by mistake to another letter of advice, puts on the counter 8/. 16^. lOd., which A takes away. This is theft. 1 B. V. Middhton, 1873, 2 C. C. R. 38. Perhaps "by knowingly accei^ting with intent to convert " would be a more accurate Avay of expressing the effect of this case. ^ R. V. A.shtrell, 188.J, IG Q. B. D. 190, was reserved in consequence of tlie expression of doubt in the text. Keogh, meaning to lend Ashwell a shilling, put into his hand a coin which at the time each believed to be a shilling. It was a sovereign, and Ashwell found this out an hour •afterwards and kept it. The (question whether this was larceny or not was twice argued, the last time before fourteen judges, of whom I was •one. Seven thought that it was, and seven that it was not larceny, and the result was that the conviction stood. In Ii. v. F/oirer-f, 1886, 16 Q. B. 1). 643, the facts of wliicli appear to me not distinguishable from those in Ii. V. Ashirdl, several of the jiulges who affirmed the conviction of Ashwell explained that they did not mean l>y that decision to throw doubt on tiie rule that an innocent, taking succeeded by a fraudulent misappro- priation is not larceny. R. v. AahircJl must therefore be regai'ded as at most an authority for a case precisely similar in all its circumstances, but even this is not clear. No doubt in R. v. W'nuhor, 1860, 8 H. L. Ca. 369, Lord Campbell treated R. v. JMillin as an authority landing on the House, thougli it was decided in a case of equality of votes l)y the help of the maxim " pnusumitur pro neganti " ; but I doubt wliether this would apply to /'. V. A-shti-f^l/. The (Jourt being c(|ually di\'iiled no judgment 262 A DIGEST OF (2.) ^ A gives a cabman a sovereign for a shilling. The cab- man, seeing that it is a sovereign, keeps it. This is theft of the sovereign. If he does not discover the mistake at once, but subsequently, it is doubtful whether he commits theft or not. (3.) ^ A receives a letter containing a cheque. The letter is addressed, and the cheque is payable, to another person of the same name as A. A receives the letter innocently, but on dis- covering the mistake made converts the cheque to his own use. This is not theft. (4.) ^A buys a bui-eau at a public auction, and finds in it property not intended to be sold, which he converts to his own use. This is theft. Article 326. theft by bailees. ^ Theft may be committed by the conversion by a bailee of the thing- bailed, but this does not extend to any offence punishable on summary conviction. ^ This article applies to bailments to infants incapable of entering into a contract of bailment by reason of infancy was given, and therefore the conviction was not quashed, but I do not see what more can be said. The maxim " prjesumitur pro neganti," it might surely be argued, would apply, if at all, to the view which negatived Ashwell's guilt. For myself I doubt its application to the case. On the whole there is strong evidence of the correctness of ni}- opinion that the matter is doubtful, and I have accordingly left my statement as it was. 1 Per eight Judges, in R. v. Middlefon, 1827, C. C. R. at p. 45. 2 R. V. MucUoir, 1841, 1 Moo. C. C. 160 ; R. v. Darie^, 1856, D. & P. 640. ^ Merry v. Green, 1841, 7 M. & W. 623. There was a question in this case whether the bureau was not sold with its contents. Carfwrighf v. Green, 1803, 8 Ves. 405, is also precisely similar. I am unable to distin- guish these cases from those on which Illustration (3) is founded. It is remarkable that in the judgments, and apparently in the argument (which is not reported), in R. v. Middlefon, no notice is taken of any of these cases, nor are the cases about the bureaus referied to in R. y. Dairies, which was decided, without argument, solely on the authority of R. v. MuclJoiv. Cartwrif/ht v. Green is not referred to in R. v. MurJcIoir, which was decided before Merry v. Green. Merry v. Green does not refer to R. v. MucMow. The result is that the cases appear to contradict each other. This is also the view of Mr. Justice Cave in his judgment in R. v. Ashicell. ■* 24 & 25 Vict. c. 96, s. 3. For an instance of this oiience, see R. v. Oxenham, 1876, 46 L. J. (M. C.) 125. For a case in w^hich it was doubtful whether or not there was evidence of a bailment, see R. v. De Bants, 1884, 13 Q. B. D. 29. See also R. v. A-s-hu-eU supra. 5 R. v. MacDonald, 1885, 15 Q. B. D. 323. THE CRIMINAL LAW 263 [and it is submitted to bailments upon a void, and perhaps upon an illegal, consideration]. Article 327. by and from whom theft may be committed. Theft may be committed by a general owner to the pre- judice of a special owner upon a chattel in which both general and special ownerships exist. ^ Theft may be committed by a member of a ^ co-partner- ship, or by one of two or more beneficial owners of any money, goods, effects, bills, notes, securities, or other property, to the prejudice of the other co-partners or beneficial owners. ^ Theft may be committed by a member of a corporation to the prejudice of that corporation upon a thing which is the property of the coii^oration. ^ A married woman cannot (^ so long as she lives with her husband) commit theft upon things belonging to her husband. If any other person assists a married woman (^ living with her husband) in dealing with things belonging to her husband in a manner which would amount to theft in the case of other persons, ^ such dealing is not theft '' unless the person so assisting commits or intends to commit adultery with the woman, ** in which case he, but not she (^ unless she 1 31 & 32 Vict. c. 116, s. 1. 2 A co-partnership means an association for profit. A Christian Young Men's Society is not a co-partnership, tliough its members may ])e joint beneficial owners. B. v. Bohson, 1885, IG Q. B. D. 140. ^ Roscoe's Ciim. Ev. lltli ed. 639. This is Mr. Koscoe's inference from Hale, P. C. 513, and appears to l)e correct. 4 1 Hale, P. C. 514. ^ These parentheses seem to be required since 45 & 46 Vict. c. 75, s. 12 (Tlie Married Woman's Property Act 1882). 8ee Article 311. « Harrison\s Case, 1756, 2 East. P. C. 539. 7 B. V. Avery, 1859, Bell, 150. 8 B. V. Tolfree, 1829, Mood. 243 ; B. v. Thomp.^on, 1850, 1 Den. 549; B. V. Tollett, \%'i\, Car. and Mar. 112 ; /?. v. Feat her. stone, 1854, D. & P. 369 ; B. V. H. Mutter.'^, 1865, L. & C. 511. A note to this case, 516-19, collects and reviews all the authorities on the subject. These cases were all decided V)efore the Married Woman's Property Act 45 and 46 Vict.[c. 75, ss. 12, 16. 264 A DIGEST OF intends to desert her husband), commits theft. ^ But this exception does not apply to the case of an adulterer or person intending to commit adultery, who assists a married woman to carry away her own wearing apparel only from her husband. ^ It is doubtful whether the mere presence and consent of a married woman' on an occasion when some person deals with her husband's goods in a way which would otherwise amount to theft excuses such person if he acts as a principal in the matter, and not as her assistant. Illustrations. (1.) ^ A bails goods to B for exportation, upon which A would become entitled to an exemption from a duty on the goods of 2s. 6r?. a pound. B gives a bond to the Crown for exportation, and sends the goods in his barge to a ship to be exported. A, to get the goods duty free, takes them from B's bai'ge. A has stolen the goods from B, and it seems it would have been larceny if no bond had been given by B. (2.) *A gives his servant goods to carry to a certain place. A then disguises himself and robs his servant in order to charge the hundred with the robber}-. This is robbery. Article 328. ■' fixdixg goods. A finder of lost goods who converts them commits theft if at the time when he takes possession of them he intends 1 B. V. Fitxli, 18o7, D. & B. 187. - R. V. Avery, 1859, Bell, 153. I submit that the wife's pi-eseiice and consent in such a case would be no excuse. .See the history of the growth of the doctrine in the note to R. v. Mutttrx. 3 R. V. WilkinMjii, 1821, 2 Russ. Cr. 243, R. k R. 470. ^ Foster", 123-4. I have not met with B.n\ case in wliich a man has been convicted of tlieft for stealing a pledge (his own property) from a pawiil)roker ; but no doubt such an act would be theft. Before 31 & 32 Vict. c. 116, s. 1, a case occurred in wliich a part owner was convicted of stealing money from another part owner, in whose special ciistod}- it was, and who was solely responsible for its safety, the money beuig the property of a co-operative store : R. v. Wehsfer, 1861, L. & C. 77. The same point was decided, as to the propertv of a friendly societv, in R. v. Burqesx, 1863, L. & C. 299. ■"' 3 Hist. Cr. LaAV, 170. THE CRIMINAL LAW 265 to convert them, knowing who the ow^ner is, or having reasonable grounds to believe that he can be found ; Such a conversion is not theft («.) if at the time when the finder takes possession of the goods he has not such knowledge or grounds of belie as aforesaid, although he acquires them after taking posses- sion of the goods, and before resolving to convert them ; or (&.) if he does not intend to convert the goods at the time when he takes possession of them, Avhether he has such knowledge or grounds of belief or not at any time. If the circumstances are such as to lead the finder reason- ably to believe that the owner intended to abandon his property in the goods, the finder is not guilty of theft in converting them. Illustrations. ( 1 . ) ^ A finds a ])ank-note, accidentally dropped on the floor of his shop. He picks it up, intending to keep it for himself, who- ever the owner may be, believing at the time that the owner could be found. This is theft. (2.)''^ A, a carpenter to whom a bureau was intrusted to mend, finds money in it, the existence of which was obviously unknown to the owner of the bureau. A appropriates the money. This is theft, as A knew to whom the bureau be- longed. (3.) ^ A finds iron in the bottom of a canal, from which the water has been let off, and appropriates it. This is theft, as the fact that the iron was in the canal raised a presumption that it had fallen from a canal boat and that therefore the canal company had a special property in it. (4.) * A finds a sovereign in the road, and picks it up, intend- ing to keep it, whoever the owner may be, but not knowing who he is, and having no reason to believe he could be found. This is not theft. (5.) ''A finds a bank-note in the road, with no mark upon it, and no circumstance to indicate who is the owner, or that he 1 R. V. Moore, 1861, L. & C. 1. '- Cartii-riiihf v. Green, 1803, 8 Ves. 40.3 ; see, too, Merry v. Green, 1841, 7 M. & W. 623. ^ R. V. Ro)i:e, 1859, Bell, C. C. 1)3. This case was decided on the question of the possession of the canal company, but it illustrates the principle of finding also. * R. V. Glyde, 1868, I C. C. R. 130. ■' R. V. Tliurhorn, 1841), 1 Den. 387. 266 A DIGEST OF might be found. Next day he hears who the owner is, and after that changes the note and keeps the money. This is not theft. (6.) ^ A finds a bank-note in the road with the owner's name upon it, and takes it, intending at the time to return it to the owner, but afterwards changes his mind and keeps it for himself. This is not theft. (7.) "A finds an apple, which appears to have been thrown away in a road, and eats it. If A reasonably believes that the apple had been abandoned by its owner, this is not theft. Article 329. coxversiok after a taking amounting to trespass. If a person takes into his cvistody any chattel belonging to any other person in a way which constitutes an actionable wrong to that person and afterwards converts it, he commits theft, although he may not have intended to convert it when he took it into his custody. Illustrations. (1.) 2 A, having a flock of lambs in a field, drives them out, and negligently drives away with them a lamb belonging to B which happens to be there. At the time of driving away the lamb A does not intend to convert it, but afterwards, on dis- covering what has happened, he sells the lamb and keeps the money. This is theft. 1 Preston ■■< Case, 1851, 2 Den. 353. The ilhxstration does not represent the actual facts m Preston's Case, but a state of facts which the Court said might have existed and iipon which the jury might have convicted him under the terms in wliich the very able judge who tried the case (the late M. 1). Hill, Recorder of Birmingham) directed them. - Per Rolfe, B., in P. v. Peters, 1843, I C. & K. 245; and see the summing up of Cockburn, C.J., in P. v. Glijde, 1868, I C. C. R. 140-1. In some of the cases on this subject a distinction is taken between property absolutely lost and property only mislaid ; see P. v. West, 1854, D. & P. 402. It would appear, however, that the onl}- real difference is that in the latter case the finder must know that the owner maj' 'oe found. Tlie distinction was useful as a step towards modifying the generality of the rule laid down hy the old text writers : see e.g. I Hawkins, P. C. 142. " One who finds such goods as I have lost, and converts them to his o■^\^l use, OMiino furandi, is no felon." 3 P. V. Piley, 1853, D. & P. 149. THE CRIMINAL LAM' 267 (2.) ^ A takes home B's umbrella from a club by mistake, and having afterwards found out that it is B's, converts it. A commits theft. Article 330. coxversiox after inxocext taking. If a person innocentlv in any way not refeiTed to in any of the preceding Ai'ticles has the possession of any chattel, and converts such chattel, he does not commit theft, although such chattel may have been intrusted to him by the o\vner, or may be the proceeds of something which was intrusted to him by the o^vner for the owner's benefit, or for the benefit of some person other than the person so intrusted, unless such conversion falls within the provisions of Chapter XLII. or Article 335. Illustrations. (1.) -^ A assigns his goods by deed to ti'ustees for the benefit of his creditors. The trustees do not take possession, but leave A's possession undisturbed. A makes away with the goods, intend- ing to deprive his creditors of them. This is not theft. (2.) ^ B's house being on fire, A takes B's goods to A's house for protection, B acquiescing as to some of them. A's intention at the time is to keep them for B, but A afterwards changes his mind and converts them. This is not theft. (3.) ■* B gives his broker A a cheque to buy Exchequer bills. A buys Exchequer bills for B with part of the proceeds of the cheque and absconds with the rest. This is not theft. (4.) " B, a boy unable to read, finds a cheque and gives it to A, asking A to tell him what it is. A, on various false pretences, 1 Per Pollock, C.B. , and Parke, B., in Riley's Case, p. 156; see the question of Martin, B., in Presfon'-s Case, 1851, 2 Den. 359. 2 R. V. Pratt, 1854, Dear. 360. ■^ Leigh's Case, 1800, 2 East. P. C. 694-5. This case seems to show that if A were to find a bank-note for £1000, which he knew to be B's, and were to take it up intending to give it to B, and were afterwards to be tempted to go to a gaming house, and were there to stake and lose it, lie would not conmiit theft, and I believe that such is the law. ^ Walsh's Case, 1812, 2 Lea. 1054. Walsh's Case was the occasion of the first of a series of statutes now represented by 24 & 25 Vict. c. 96, ss. 75-79. See 2^ost, Chapter XLII. 5 R. V. Gardner, 1862, L. & C. 243. 268 A DIGEST OF withliolds it fi'om B in hopes of getting a reward from the owner. A has not stolen the cheque. (5.) ^ A, the acting treasurer of a local Church Missionary Society, whose duty it is to deposit or invest tlie moneys received by him on account of the society, converts them. This is not theft. (6.) '^ A is the ti-easurer of a moiiey clulj, the nature of which is that certain persons deposit a weekly sum and are liable to fines in default. Loans may be made on interest to the members at A's discretion. The total amount, including interest on the loans, but subject to small deductions, to be divided amongst the members at the end of the year. A converts the balance in his hands at the end of the year. This is not theft. Article 331. olitaining by false pretences not theft. It is not theft to persuade any person by fraud to tiunsfer the property of any chattel to any person, though such an act may be an offence under Chapter XLI. Article 332. temporary taking is not theft. ^ It is not theft to deal with anything in any of the ways in which theft can be committed with the intention only to obtain the temporary use thereof, and not with the inten- tion to convert it permanently to the use of some person other than the owner; but if a thing is so dealt Avith with the intention of totally depriving the (jwner of his property in it, the returning of the goods after a tempor- 1 R. V. Garrett, I860, 8 Cox, C. C. 368, and 2 Russ. Cr. 136-7. This would not even now he. an offence. As the offender had not to pay over or return tlie specific coins intrusted to him, he was not a bailee ; and as thei'e was no express trust of the money created by an instrument in writing he was not withiji the fraudulent trustee clauses of the Larceny Act. - Nor is it any offence at all. B. v. HasscU, 1861, 1 L. & C. .58. ^ See Illustrations, and for the latter part of the Article note to R. v. Phethf-on, 1840, 9 C. & P. 'yU, and R. v. TrehUrorl; 18,58, D. & B. -4.53. THE CRIMINAL LAW 269 ary use of them will not prevent the act from amounting to larceny. Illustrations. (1.) ^ A takes B's horse without B's leave, rides about on it to find some cattle, and then turns it loose on the common. This is not theft. (2.) "A rides B's horse, without B's leave, to a place thirty miles off, and leaves him at an inn, saying he will call for him. A does not call for the horse, but pursues his journey on foot. The jury must consider whether A meant permanently to deprive B of his horse, or only to make that particular journey on him. In the fii'st case A's act is theft, in the second, not. Article 333. taking tame animal wandering not theft. ^ It seems that it is not theft to take and carry away an animal which, though really tame, is wandering at a dis- tance from its habitation as if it were wild, and when it is not known to be tame by the person who takes and carries it away. Article 334. evidence as to theft. The inference that, property alleged to have been stolen has in fact been stolen may be drawn from other facts than the fact that it is identified by a Avitness. The inference that an accused person has stolen property, or has received it knowing it to be stolen, may be drawn from the fact that it is found in his possession after being stolen, and that he gives no satisfactory account of the way in which it came into his j)ossession. 1 1 Hale, P. C. 509. 2 R. V. Phillips, 1801, 2 East, P. C. G62 ; B. v. Addis, 1844, 1 Cox, C. C. 78, is to tlie same effect. •" 1 Hawkins, P. C. p. 149, cli. 19, s. 40. 270 A DIGEST OF Ilhistration. 1 A is seen coming out of a lower room in a warehouse in the London Docks, in the floor above which a quantity of pepper is deposited, some being loose on the floor. A's pockets are full of pepper. On being stopped he throws down the pepper, and says, " I hope you will not be hard upon me." A may be con- victed of stealing the pepper, although no pepper was missed from the warehouse, and the pepper on A was not otherwise identified than by being shown to be similar to that in the warehouse. 1 B. V. Burfon, 1853, D. & P. 282. In this case Maule, J., character- istically remaiked, " If a man go into the London Docks sober, without means of getting drixnk, and comes out of one of the cellars very drunk, wherem ai'e a million gallons of wine, I think that would be reasonable evidence that he had stolen some of the wme in that cellar, though you could not prove that any wine was stolen, or any wine was missed." As to the rule as to recent possession of stolen goods, many cases have been decided on the subject (see 2 Russ. Cr. 275-283), but they seem to me to come to nothing but this, that every case depends on its own circumstances, and that tlie nature of the thing stolen, the length of the inteival between the theft and the possession, and the behaviour of the accused may all vary the force of the evidence indefinitely. The unex- plamed possession of a single stolen coin by a shopkeeper doing a laige business in whose till it was found ten minutes after the theft, would prove nothing. The finding of a lost will ten years after its loss, locked up in the strong box of a careful person deeply interested in its temporary concealment, and peculiarly jealous of his strong box, would prove a great deal. Between these extremes there may be infinite degrees in the weight of such evidence. THE CRIMINAL LAW 271 CHAPTER XXXVII ^EMBEZZLEMENT BY CLERKS AND SERVANTS Article 335. embezzlement by clerks and servants — who are servants. ^ When a clerk or servant, or person employed in the capacity of a clerk or servant, commits theft by converting any chattel, money, or valuable security delivered to or received, or taken into possession by him for or in the name or on account ^ of his master or employer, his offence is called embezzlement. Such a conversion is not a criminal offence (except in the cases hereinafter specially provided for) unless the person who converts stands to the owner of the property converted in the relation of a clerk or servant, or person emploj-ed in the cajDacity of a clerk or servant. * It is a question for a jury whether a person accused of embezzlement is a clerk or servant or not. ^ A clerk or servant is a person bound either by an ex- press contract of service or by conduct *" implying such a contract to obey the orders and submit to the control of his master in the transaction of the business Avhich it is his duty as such clerk or servant to transact. A man may be a clerk or servant " although he was appointed or elected to the employ- 1 .3 Hist. Cr. Law, 151-6. Cf. Draft Code, ss. 249, 250, 258. ^ Founded on 24 & 25 Vict. c. 96, s. 68. See Art. 351 (h). 3 For an instance in wliich money was received in the name of one person and on the account of another, see R. v. Thorpe, 1858, D. & B. 562. •* Bramwell, B., doubted as to this in Walker's Case, 1858, D. & B. at p. 602; but see R. v. Negus, 1873, 2 C. C. R. 34; R. v. Tite, 1861, L. & C. 29 ; R. v. May, 1861, L. & C. 1.3. ^ R. V. Negiis, sup. at p. 37 (judgment of Blackburn, J.) ; R. v. Titt, sup. at p. 33. 8 R. V. Foulkes, 1875, 2 C. C. R. 152. 7 Illustration (1). 272 A DIGEST OF ment in respect of which he is a clerk or servant by some other person than the master whose orders he is bound to obey; ^ although he is paid for his services by a commission or in the profits of a business ; - although he is a member of any co-partnership, or is one of two or more beneficial owners of the ^property embezzled ; * although he is a director of a company which he serves ; ^ although he is the clerk or servant of more masters than one ; •^although he acts as clerk or servant only occasionally, or only on the particular occasion on which his offence is committed. "' But an agent or other person who undertakes to transact business for another, without undertaking to obey his orders, is not necessarily a servant because he receives a salary, or because he has undertaken not to accept employment of a similar kind from any one else, or because he is under a duty (statutory or otherwise) to account for money or other property received by him. ® It seems that in order that a clerk or servant may be within the meaning of this Article it is necessary that the objects of his service should not be criminal, but a man may be such a clerk or servant although the objects of his service are in part illegal as being contrary to public policy. 1 Illustrations (2) and (3). 2 31 & 32 Vict. c. 116, s. 1. s " Monej', goods, or effects, bills, notes, or securities, oi- other pro- pert j'." * Illustration (4). '•> Illustration (3). " Illustration (5). ' Illustrations (7), (11), (12), (14), (15). 8 Illustrations (15), (16). THE CRIMINAL LAW 273 Illuatrations. (1.) ^ A, elected collector of rates by the vestry of a parish, and having to obey a committee of management, is the servant of the committee of management. (2.) - A was cashier and collector to B at a salary of £150 a year, besides 12^ per cent, on the pi'ofits of the business. A was not to be responsible for losses and had no control over the management of the business. A was servant to B. (3.) ^ A took orders for B and collected money for him according to a journey book given to him by B, showing the sums to be received and the persons from whom they were due. A was paid by a commission. A was clerk to B, though he was principally employed by C, D, and others. (4.) ■* A, a director of S. & Co. (Limited) canvassed, super- intended bill-posting for the company, collected money due to them and paid it over to the cashier. A was the servant of S. «fe Co. (Limited). (5.) ^ A was employed by B to go on messages when A had nothing else to do, and B was to give A whatever B chose. A was B"s servant. (6.) *^ A, a drover, was employed by B, a farmer, on one single occasion to drive a cow and calf to a person to whom they were sold, and to bring back the money. A was B's servant. (7.) '^ A, the master of a charity school, on one particular occasion consents to get a subscription to the funds of the school, at the request of B, the treasurer of the committee of management by which A was appointed, and which managed the school. It was no part of A's duty as master to collect any subscriptions. In getting the subscription A was not the servant of B. (8.) ^ A, a drover, is employed by B, a grazier, to drive oxen 1 R. V. Callahan, 1837, 8 C. & P. 154. See now 12 & 13 Vict. c. 103, s. 15, which applies also to assistant overseers ; B. v. Cnlliim, 1873, 2 C. C. R. 29 ; and see B. v. Jtnson, 1835, 1 Moo. C. C. 434. 2 ]\P Donald's Case, 1861, L. & C. 85. 3 R. V. Carr, 1811, R. & R. 198. A doubt was expressed as to the last point referred to in this illustration in R. v. Goodbody, 1838, 8 C. & P. 665 ; but R. v. Batty, 1842, 2 Moo. C. C. 257, and R. v. Tite, 1861, L. & C. 29, uphold R. v. Carr and recognise the principle tliat a man may be servant to several persons at once. •* R. V. Stuart, 1894, 1 Q. B. 310. ■' R. V. Hjmictr, 1815, R. & R. 299. c R. V. Hiufhts, 1832, Moo. C. C. 370. 7 /.'. V. Nettleton, 1830, 1 Moo. C. C. 259. 8 /.'. V. Goodhody, 1838, 8 C. & P. 665. 'riie difference between this case and R. v. Jliii/ht-i in Illustration (6) lies in the power of sale. T 274 A DIGEST OF to London, to sell them on the road, if possible, and to take those remaining unsold to a salesman in Smithfield. A is not B's servant. (9.) ^ B engaged A, who kept a refreshment house at Birken- head, to get orders for manure manufactured by B. A was not Ijound to give any definite amount of time or labour to the purpose. The manure was sent to stores under A's control, of which he was tenant, though B paid the rent, and was forwarded by A to the customers. A was paid £1 a year salary and a commission. A was B's agent, not his servant. (10.) - A is employed b}^ B to get orders and collect money when and where he thinks proj^er ; A is not B's servant. (11.) ^ A was engaged by B to solicit orders. He was to be paid by commission. He was at lil^erty to apply for orders whenever he thought most convenient, but was not to employ himself for any other jDei'son than B. A was not B's servant. (12.) ■* The treasurer of a friendly society under 18 »fc 19 Vict. c. 63, is not the servant of the trustees of the society, though by sect. 22 he is bound before seven days after being- required by the trustees (in whom the money is vested by sect. 18) to account to the trustees. (13.) ^ A parish clerk is not a servant, because he is not under the orders of any particular person. (14.) '^ The chamberlain of the commons of a corporation chosen and sworn in at a court, but whose duty it is to super- intend the commons and to receive certain duties which he kept till the end of the year, when his accounts were audited and the balance paid over to his successor, is not a servant, because he holds a distinct office, and is not bound to pay at any time. (15.) '' The servant of a trade union may be convicted of the 1 7?. v. Wall-er, 1858, D. & B. 600. - i?. V. Bower.s, 1866, 1 C. C. R. 41, and B. v. Harris, 189.3, 17 Cox C. C. 656. 3 B. V. yeg^ls, 1873, 2 C. C. R. 34. * H. V. Tyree, 1869, 1 C. C. R. 177. A treasurer would appear, as a rule, to be rather a banker than a servant, but every case depends on its special cii-cunistances. In R. v. Jlurphi/, 1850, 4 Cox, C. C. 101, the prisoner was both clerk and treasurer (see the explanation of this case given in R. v. Ti/ree). In B. v. Welch, 1846, 1 Den. 199, the circum- stances were verj- similar to those of B. v. Ti/rte, and Coleridge, J., appears to have been satisfied that the jirisoner was a servant, and did not reserve the point. It is singular that this case is not referred to in B. v. Tyree. ° B. V. Burton, 1829, 1 Moo. 237, explained in WilUams v. Sfott, 1833, 3 Tyrw. 688. « Williams v. Sfotf, 1833, 3 Tyrw. 688. 7 B. V. Stainer, 1870, 1 C. C. R. 230, and see B. v. Tankard (1894), 1 Q. B. 548. In the argument on the former case both sides assumed THE CRIMINAL LAW 27 o embezzlement of its funds, although some of its rules are void as being in restraint of trade. (16.) ^ The servant of a society, the members of which took an unlawful oath under 37 Geo. 3, c. 123, and 52 Geo. 3, c. 10-1, cannot be convicted of embezzlement for misappropriating the funds of the society. Article 830. THE PROPERTY EMBEZZLED MUST BE THE MASTER'.S. The offence of embezzlement cannot be committed by the appropriation of joroperty which does not belong to the master of the alleged offender, although such property may have been obtained by such alleged offender b}" the improper use of the property intrusted to him by his master, but pro- perty which does belong to the master of the offender may be embezzled, although the offender received it in an irre- gular way. lUustrations. (l.)^B, the high bailiff of a county court, appointed A a bailiff. By rules of practice it was A's duty to pay over moneys levied by him to the registrar. A received certain money and appropriated it, the money being the money of the registrar and not B's whose servant (if any one's) A was. This was not embezzlement. (2.) ^ A railway company contracted with B to deliver the railway's coals in the railway's carts, B finding horses and carmen, but the terms of the contract were such as to make the carmen, after receiving the money, answerable to the railwa}-. that if tlie society was criminal the conviction conld not be sustained. Cockburn, C.J., said, "It is lumeces&ary to consider how far the criminal purposes of a society might affect its title to property." As stolen property may be stolen from the thief who stole it (1 Hale, P. C. 507), the question might deserve consideration if it ever arose. R. v. Hunt, in the next illusti-ation, is in point, but it is only a nisi 2'rius decision, 1 R. V. Hunt, 1838, 8 C. & P. G42, by Mirehouse (Com. Serj.), after con- sulting Bosanquet and Coleridge, J J. - R. V. Glover, 1864, L. & C. 400. ■* R. V. Btaiimont , 1854, O. & I'. 270. The circumstances of this case are at first sight identical with those of R. v. Thorpe, 1858, D. & B. 502, in which the conviction was affirmed ; but the special terms of the con- tract, I suppose, make the difference. It is singular that R. v. BMimnont is not referred to in /'. v. Thorpe, otlierwise than in a note l)3'the reporter at the end of the case. t 2 276 A DIGEST OF A, a carman, received money for coals and appropriated it. This was not embezzlement, as the money was not the money of B, but of the railway company. (3.) ^ A, a bargeman, was forbidden by B, his master, to take a cargo on his barge on part of a particular voyage. A took the cargo, appropriated the freight to himself, and denied the receipt of it when questioned by his mastei-. The person from whom he took the cargo and freight knew of no one in the transaction except A. This was not embezzlement, as the freight did not belong to B. (4.) '^ A, intrusted with a cheque for B, gets it cashed by a friend, and not, as was the regular course, at a bank, and appropriates the proceeds. This is embezzlement. Article 337. distixction between embezzlement and other kinds of THEFT. The distinction between embezzlement by a clerk or servant and other kinds of theft is, that in other kinds of theft the property stolen is taken out of the possession of the owner, whereas, in embezzlement by a clerk or servant the property embezzled is converted by the offender whilst it is in the offender's possession on account of his master and before that possession has been changed into a mere custody. Illush-ations. (1.) ^ A, B's servant, has authority to take orders, but none to send out goods from B's shop. A takes an order for pickles and treacle, enters in his master's book an order for pickles only, takes from the shop and delivers to the customer both pickles and treacle, and keeps the price of the treacle. This is a theft of the treacle, as A had no authority to deliver it, but it is not an embezzlement of the price, as it was not received on B's account, but in fraud. (2.) '^ A, a clerk to a navy tailor goes on board a man-of-war 1 F. V. Cnllnm, 1873, 2 C. C. R. 28. 2 R. V. €Jah, 1876, 46 L. J. (M. C.) 134. 3 R. v. Wilson, 1839, 9 C. & P. 27. The prisoner having been indicted for embezzlement escaped. 4 7.'. V. Hawkins, 1850, 1 Den. C. C. 584. THE CRIMINAL LAW 277 with clothes deHvered to him by his mastei' to sell to the marine artiller^-men on board. He afterwards enters as a seaman on another ship, carrying off the clothes. A commits theft, and not embezzlement. (3.) ^ A, the manager of a branch bank, has in his office a safe, the property of the bank, and of which the bank manager keeps the key at the head office. A's duty is to put money received during the day into this safe. He takes part of it out of the safe and applies it to his own purposes. This is theft, and not embezzlement. (4.) ^ A's duty is to get bills accepted and discounted for his master. A ha\ing got a bill accepted for his master, lays it with other bills on his master's desk. He then takes it from his master's desk, gets it cashed, and appropriates the money. This is theft. (5.) ^ A receives from his master B, dock warrants enabling him to get jDroperty from the docks, and is induced by B to carry the property to London. A on the road appropriates part of the property. This is theft. (6.) ■* A, B's servant, is sent by B to fetch 2-tO quarters of oats, which B has purchased, and which are lying on a vessel in the Thames. Whilst the oats are being measured into B's barge, A causes iive quarters to be put up in sacks and set aside, the rest Ijeing loose. A then sells the sacks of oats for his own benefit from the vessel, and before they were put into the barge. This is theft. (7.) '^ A, B's servant, gets plate for his master from a silver- smith, puts it in B's plate-chest, and then takes it out and appropriates it. This is theft. [° If he appropriates it before he puts it into the plate-chest, he commits embezzlement.] (8.) ' A, B's servant, receives from C, a fellow-servant, £3 of B's money, and appropriates 10*-. to his own use. This is not embezzlement [but is theft.] (9.) ^ A, a banker's clerk, whose business it is to receive notes 1 n. v. Wrhjhi, 1858, D. & B. 431. - Chipcha-st's Ca.se, 1795, 2 Lea. 699. 3 R. V. Xorral, 1844, 1 Cox, C. C. 95. * Abraham's: Ca-^e, 1798, 2 East, P. C. 569 ; 2 Russ. Cr. 313. ■' Per Coleridge, J., in /-'. v. Waffs, 1850, 2 Den. at p. 19. " A dictum of Wilde, C.J., in /.'. v. Watfs seems to say the opposite, Init if this were so, the whole distinction between embezzlement and theft would be taken away (as no donbt it ought to be as a matter of common sen.se). See Mr. Greaves' remarks on Wilde, C.J.'s dictum and on the whole case of /'. v. Waffs, 2 Russ. Cr. 323, notes (s) and (t). ' li. v. Murray, 1830, 2 Russ. Cr. 314 ; 5 C. & P. 145 ; 1 ]Moody, 276. s Baztlty\ Cast, 1799, 2 Lea. 835; 2 East, P. C. 571. I'his case 78 A DIGEST OF over the counter and put them in a drawer, receives a note for .£100 from the servant of a customer, and appropi-iates it to himself without putting it into the drawer. This is not theft at common law, Ijut is embezzlement. AirncLE 338. EVIDENCE AS TO EMBEZZLEMENT. ^ The inference that a prisoner has embezzled property by fraudulently converting it to his own use, may be drawn from the fact that he has not paid the money or delivered the property in due course to the owner, or from the fact that he has not accounted for the money or other property which he has received, or from the fact that he has falsely accounted for it, or from the fact that he has absconded, or - from the fact that upon the examination of his accounts there appeared a general deficiency unaccounted for ; ^ but none of these facts constitutes in itself the offence of embezzlement, nor is the fact that the alleged offender rendered a correct account of the money or other projDerty intrusted to him inconsistent Avith his having ^ embezzled it. occasioned the passing of the 39 Geo. 3, c. So, now re-enacted in snb- stance by 24 & 25 Vict. c. 96, s. 68. 1 These facts ai'e the common evidence of embezzlement given in every instance, and require no iUustration. That tlie non-payment is only by way of delay, the false accounting a mistake, &c. , are common tojiics of defence. 2 /?. v. Grore, lS3.j, 1 :\Ioody 447 ; 2 Russ. Cr. 377-380. Tlie authority of this case, decided by eight judges to seven, has Iteen douljted. See R. V. Moah, 185G, D. & P. 626, 639 : see, too, /,'. v. Lambtrf, 1847, 2 Cox. C. C. 309 ; /.'. V. Lloijd Jones, 1838, S C. & P. 288 ; /.'. v. Cluqmiait, 1843, 1 C. & K. 119 ; R. V. Kimi, 1871, 12 Cox, C. C. 73. 3 B. V. Hodi/so7i, 1S28, 3 C. & P. 422 ; i?. v. WiiinaU, 18-51, o Cox, C. C. 326. Mr. Greaves' note, 2 Russ. Cr. p. 371, on this case disapproves of the sumnung-u]j of Erie, J., on what appears to me to be a misconcep- tion of its puiport. Mr. Greaves' view that the fiaudnlent conversion constitutes tlie offence, and tliat everything else is only evidence of it is obviously correct ; but I tliink tliat Erie, J., did not mean to say anything inconsistent with this. Wilful false accounting is now a substantive offence. See 38 & 39 Vict. c. 24, s. 2, and Article 381, post. * R. V. Guddtr, 1860, Bell, C. C. 284 ; /.'. v. Lider, 18o6, D. & B. 118. THE CRIMINAL LAW 279 CHAPTER XXXVIII ^robbery and extortion by threats - Article 339. ROBBERY. Every one is guilty of felony and is liable upon convic- tion thereof, to be kept in penal servitude in the case of the offences defined in clauses («.) and (&.) for life, in the case of the offence defined in clause (c.) for fourteen years, and in the case of the offence defined in clause {d.) for five years, who does any of the following things (that is to say), («.) ^ who, being armed with any offensive weapon or instru- ment, robs any person, ur being together with any person or persons, robs or assaults with intent to rob any person, or (&.) ^ who robs any person, and at the time of, or imme- diately before, or immediately after such robbery, wounds, beats, strikes, or uses any other personal violence to any person, or (c.) ^ who robs any person, or {(l.) ^ who assaults any person with intent to rob. Article 340. extortion by threats. Every one commits felony and is liable upon conviction 1 .3 Hist. Cr. Law, 149-150. Draft Code, Part XXVIL, ss. 288-296. 2 For definition of robberj^ and illustrations as to tlie nature of the fear and violence involved, see Article 322. ^ 24 & 25 Vict. c. 96, s. 43. Oftenders against this section are liable, if males, to be thrice privately wliipped in addition to the other punish- ments above specified. 26 & 27 Vict. c. 44, s. 1. As to the manner of inflicting this punishment, see Article 12 (rf.), ante. * 24 & 25 Vict. c. 96, s. 40. " Ibid. s. 42. 280 A DIGEST OF thereof to penal servitude for life in cases a. \., a ii., h and c, for ten years in case a. iii., and five years in case d, who {a.) sends, delivers, utters, or directly or indirectly causes to be received, knowing the contents thereof, any letter or writing (i.) ^ demanding any valuable thing of any person with menaces, and without any reasonable and probable cause ; (ii.) ^ 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 endeavour to com- mit any rape, or of any * infamous crime, with a view or intent to extort or gain any valuable thing from any person by means of such letter or writing ; (iii.) ^ threatening to burn or destroy any house, barn, or other building, or any grain, hay, or straw, or other agricul- tural produce in a rick or stack, or in or under any building, or any ship, or vessel, or to kill, maim, or wound any cattle ; or (&.) ^ who accuses, or threatens to accuse, an}^ person what- ever of an}' of the crimes siDeciiied in a. ii., with the view or intent to extort or gain any valuable thing from any person whatever, or (c.) "^ who, with intent to defraud or injure any other person, compels or induces any person to deal with any valuable security in any of the manners mentioned in note 8,^ 1 24 & 25 Vict. c. 90, s. 44, W. See ante, p. 256, Article 322, Illustration (7). 2 Ibid. s. 46, W. 3 This must mean penal servitude for seven years or more. There is no crime for which penal servitude for seven j'ears is a minimiiin punish- ment. ■* i.e. buggery, committed either with mankind or beast, every assault with intent to commit the same, every attempt or endeavour to commit the same, every solicitation, persuasion, promise, or threat offered or made to any person whereby to move or induce sixch person to commit or permit the same (Ibid. c. 96, s. 46). •■' 24 & 25 Vict. c. 97, s. 50, W. •' 24 & 25 Vict. c. 96, s. 47, W. An intent to compel a person by threats to buy a mare is within this section. R. v. Bedmaii, 1865, 1 C. C. R. 12. ' Ibid. s. 48, S. ^ " Execute, make, accept, indorse, alter, or destroy the whole or any THE CRIMINAL LAW 281 by any unlawful violence to, or restraint of the person of another, or by any threat of such violence or restraint, or by accusing, or threatening to accuse, any person of treason or felony, or any such crime as is mentioned in clause a. ii. ; or (fi?.) ^ who, with menaces or force, demands any valuable thing of any person with intent to steal the same (- whether the thing demanded is received or not). ^ It is immaterial whether the menaces or threats mentioned in clauses a. i., a. ii., &., c, and d. be of violence, injury, or accusation to be caused or made by the offender or by any other person. The expression " valuable thing " in this article means any property, chattel, money, valuable security, or other valuable thing. part of any valuable security, or to write, impress, or afl&x his name, or the name of an}- other person, or of any companj', firm, or co-partneiship, or the seal of any body corporate, company or society, iipon or to any paper or parchment, in order that the same may be afterwards made or converted into, oi- used, or dealt with as a valualile securitv." 1 24 & 25 Vict. c. 96, s. 45, C. R. v. 0 East, P. C. 487. ^ 24 & 25 Vict. c. 96, s. 50. ^ Ibid. s. 52, for punisliment ; 2 Russ. Cr. 2, for definition. 284 A DIGEST OF Article 34:^. housebreaking and commission of felony. ^ Every one commits felony and is liable, upon conviction thereof, to fourteen years penal servitude, who breaks and enters and commits any felony in any dwelling-house, or any building being within the curtilage of a dwelling-house and occupied therewith (but not being part thereof within Ai"ticle 341), or any schoolhouse, shop, warehouse, or count- ing-house. Article 344. entering dwelling-house with intent. - Every one commits felony, and is liable upon conviction thereof to seven years penal servitude who breaks and enters any of the buildings menti(jned in Articles 342 or 343, or who by night enters any dwelling-house with intent in either case to commit felony therein. Article 345. breaking out after committing felony. ^ Every one who, being in any of the buildings mentioned in Articles 342 or 343, commits a felony therein, and breaks out of the same, commits felony, and is liable to the same punishment as if he had broken in and committed felony therein. If such building is a dwelling-house, and the offence is committed at night, the offender commits burglary. Every one who enters any dwelling-house with intent to commit a felony therein, and breaks out of the same by night, is guilty of burglary. 1 24 & 25 Vict. c. 96, ss. 55 and 56. - Ibid. ss. 54 and 57. 3 Ibid. ss. 50, 51, 55, 56. These sections are re-arranged. THE CRIMINAL LAW 285 Article 346. being found in possession of housebreaking instruments. ^ Every one commits a misdemeanor, and is liable for the first ofifence to a punishment of five, or if he has been previously convicted of felony or of such misdemeanor, of ten years penal servitude ; - who is found by night armed with any dangerous or offensive weapon or instrument whatever with intent to break or enter into any dwelling-house or other building whatsoever, and to commit any felony therein ; or is found by night having in his possession, without lawful excuse (the proof of which excuse lies upon him), any picklock key,- crow, jack, bit, or other instrument of huuse- ■ breaking ; or is found by night having his face blackened or other- wise disguised with intent to commit any felony ; or is found by night in an}' dwelling-house or other building whatsoever, with intent to commit any felony therein. 1 2-i & 25 Vict. 96, c. ss. 58 and 59. - A common key may be such an instrument. B. v. Oldham, 1852, 2 Den. 472. Maule and Ciesswell, JJ., A^ere both of opinion that there shouUl be a comma between "picklock"' and "key." B. v. Oldham, lioM'ever, makes this unimportant A DIGEST OF CHAPTER XL '^PUNISHMENTS FOR STEALING PARTICULAR THINGS AND RECEIVING GOODS UNLAWFULLY OBTAINED Article 347. punishment for stealing things for which no special punishment is provided. - Every one commits felony and is liable upon conviction thereof to five years penal servitude who steals anything capable of being stolen, and for the stealing of which no specific punishment is hereinafter provided. ^ If the conviction takes place after a previous conviction for felony, either upon an indictment or under 8 & 9 Vict, c. 126, the maximum punishment is increased to ten years penal servitude. If the conviction takes place after a previous conviction for any misdemeanor indictable vnider 24 & 25 Vict. c. 96, or if the conviction takes place after two summary convic- tions under 24 & 25 Vict. c. 96, or 24 & 25 Vict. c. 97, or any Act mentioned in the footnote hereto, the maximum punishment is increased to seven yeara penal servitude. Article 34(S. killing animals with intent to steal equivalent to stealing. ■* Every one who wilfully kills any animal with intent to ^ 3 Hist. Cr. Law, 146-60. Draft Code, Part XXV. 2 24 & 25 Vict. c. 96, s. 4, W. Thefts falling under this Article appear to be the " simple larceny " referred to in 24 & 2.5 Vict. c. 96, ss. 33 and 36 (Article 353 (e. ) and (/. ) ). Hale means by "simple larceny" larceny withont violence. 3 24 & 25 Vict. c. 96, ss. 7, 8, 9, W. The statutes are 7 & 8 Geo. 4, cc. 29, 30 ; 9 Geo. 4, cc. 55, 56 ; 10 & 11 Vict. c. 82 ; 11 & 12 Vict. c. 59 ; 14 & 15 Vict. c. 92. These are earlier Acts on the same subjects as the two Consolidation Acts. •» 24 & 25 Vict. c. 96, .s. II. THE CRIMINAL LAW 287 steal the carcase, skin, or any part of the animal so killed, commits felony, and is liable upon conviction thereof to the same punishment as if he had been convicted of feloniously stealing the same, provided the offence of stealing the animal so killed is felony. Article 349. stealing and concealing valuable securities. ^ Every one who steals, or for any fraudulent purpose destroys, cancels, or obliterates the whole or any part of any ^valuable security, other than a document of title to land, commits felony of the same nature and in the same degree, and punishable in the same manner as if he had stolen any chattel of the like value with the share, interest, or deposit to which the security so stolen may relate, or with the nione}" due on the security so stolen or secured thereby and remain- ing unsatisfied, or with the value of the goods or other valuable thing represented, mentioned, or referred to in or by the security. Provided that no person who commits any (iffence against this Article or clause («.) of the next succeeding Article, is liable to be convicted of any such offence by any evidence whatever in respect of any act done by him, if previously to being charged with such offence, he first discloses such act on oath in consequence of any compulsory process of any Court which, on the 6th of May, 1861, was a Court of law or equity, in any action, suit, or proceeding hond fide instituted by any party aggrieved, or if he first discloses the 1 24 & 25 Vict. c. 96, s. 27. 2 Sect. 1. Valuable security includes, " any order, Exchequer acquit- tance, or other security whatsoever entitling or evidencing the title of any person or body corporate to any share or interest in any public stock or fund, whether of the United Kingdom, or of Great Britain, or of Ireland, or of any foreign state, or in any fund of any body corporate, company, oi- 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 deben- ture, deed, bond, l)ill, note, warrant, order, or other security whatsoever for money, or for payment of mone}', whether of the United Kingdom, or of Great Biitain, or of Ireland, or of any foreign state, and any document of title to lands or goods " as defined in Article 353, note 3. 288 A DIGEST OF same in any compulsory examination or deposition before any Court upon the hearing of any matter in bankruptcy or insolvencv. Article 350. thefts punishable with penal servitude for life. Every one commits felony and is liable upon conviction thereof to jDenal servitude for life, and in respect of the offences defined in clause (b.) or (c), to an alternative term of imprisonment with hard labour for four years, who does any of the following things (that is to say) : (a.) ^ who, either during the life of the testator, or after his death, steals, or for any fraudulent purpose destroys, cancels, obliterates, or conceals the whole or any part of any will, codicil, or other testamentary instrument, whether it relates to real or personal estate, or to both ; ([).) - or who being employed under the Post Office steals or destroys a post-letter containing any chattel or money whatsoever or any valuable security ; (c) 3 or who steals a post letter-bag, or a ^ post letter from a post letter-bag, or from a post office, or from an office of the post office, or from a mail ; 1 24 & 25 Vict. c. 96, s. 29. - 7 Will. 4 & 1 Vict, c. 36, s. 26, as to punislmient see ss. 41, 42, aud for definitions s. 47. ^ Ibid. ss. 27, 28, for punishments, ss. 41, 42, and for definitions, s. 47. •* "Post letter" means any letter or packet transmitted by the post under the authority of the Postmaster-General from the time of its being delivered to a post office letter-carrier, or other person authorised to receive letters, to the time of its being delivered to the person to whom it is addressed, or to his house or office, or to his sei-vant or agent, or other person considei^ed to be authorised to receive the letter, according to the usual manner of delivering that peison's lettei's. A letter not posted in the proper course, but put amongst the letters so posted for a sorter to sort is not a post letter. B. v. Shepherd, 1856, D. & P. 606. " Post letter-bag " includes a mail bag, or box, or package or parcel or other envelope or covering in which post letters are conveyed, whether it contains post letters or not. " Mail " includes every conveyance by which post letters are carried, every person or horse employed in conveying or delivering post letters, every vessel employed by or under the Post Office or the Admiralty for the transmission of post letters, or not regularly so employed but under con- THE CRIMINAL LAW 289 or any chattel, money, or valuable security, from or out of a post-letter ; or who stops a mail with intent to rob or search the same ; ((^.) ^ or who secretes, embezzles, or runs away with any of the things mentioned below,^ or any part of any such thing, being an officer or servant of the Governor and Company of the Bank of England, or of the Bank of Ireland, and being intrusted with any such thing lodged or deposited with the said governor and company ,3 or with him as an officer or servant of the said governor and comjDany. Article 351. thefts punishable with penal servitude for fourteen YEARS. Every one commits felon}-, and is liable, upon conviction thereof to fourteen years j)enal servitude, and in respect of offence (/) to an alternative term of imprisonment with hard labour for three years who does any of the following things (that is to say): {a.) ^ who steals any horse, mare, gelding, colt, filly, bull, cow, ox, heifer, calf, ram, ewe, sheep, or lamb, or wilfully kills any such animal with intent to steal the carcase, skin, or any part thereof; or (5.) ^who steals any chattel, money, or valuable security from the person of another ; or tract for the conveyauce of post letters, and every ship of war or vessel in the service of Her Majesty so employed. " Valuable security" is defined in sect. 47 in nearly the same terms as in sect. 1 of the Larceny Act : see above. The only difference of much importance is that the definition in the Post Office Act includes any warrant or order for the delivery or transfer of any goods or valuable thing (s. 47). 1 24 & 2.5 Vict. c. 96, s. 73. - " Any bond, deed, note, bill, dividend warrant, or warrant for pay- ment of any annuitj", or interest, or money, or any security, money, or other effects of any other person, or Ijody politic or corporate." ■* This must mean "either of the said governors and companies." '^ 24 & 25 Vict. c. 9G, ss. 10, 11. ■' Ibid. s. 40. U 290 A DIGEST OF (c.) ^ who steals in any dwelling-house any chattel, money, or valuable security, if the value of the property stolen is in the whole £5 or more, or if the offender puts any one, being in such dwelling-house, in bodily fear by an}* menace or threat ; or {d.) ^who steals to the value of ten shillings any of the ^ goods mentioned below, whilst laid, placed, or exposed, during any stage, process, or progress of manufacture, in any building, field, or other place ; or (e.) *who steals any goods or merchandise in any vessel, barge, or boat of any description whatsoever, in any haven or in any port of entry or discharge, or upon an}^ navigable river or canal, or in any creek or basin belonging to or com- municating with any such haven, port, river, or canal ; or (/.) * who steals any goods or merchandise from any dock, wharf, or quay, adjacent to any such haven, port, river, canal, creek, or basin, as is mentioned in the last clause ; or (ff.) ^ who ^ plunders or steals any part of any ship or vessel in distress, or wrecked, stranded, or cast on shore, or any goods, merchandise, or articles of any kind belonging to any such ship or vessel ; or (h.) ''who being a clerk or servant, or being employed for the pui^pose or in the capacity of a clerk or servant, steals any chattel, monej", or valuable security belonging to or in the possession or power of his master or employer, or fraudu- lently embezzles any chattel, money, or valuable security delivered to or received and taken into possession by the offender, for or in the name or on the account of his master or employer ; or 1 24 & 25 Vict. c. 96, ss. 60, 61. 24lbid. s. 62. 2 " Any woollen, linen, hempen, or cotton yarn, or anj- 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. " * 24 & 25 Vict. c. 96, s. 63. •' Ibid. s. 64. •* I do not know that this word has any special legal signification. " 24 & 25 Vict. c. 96, ss. 67, 68, W. THE CRIMINAL LAW 291 (i.) ^ who, being employed in the public service of Her Majesty, or being a constable or other person employed in the police of any county, city, borough, district, or place whatsoever, steals, embezzles, or in any manner fraudulently applies for his own benefit, or for any purpose except the public service, the whole or any part of any chattel, money, or valuable security belonging to or in the possession or power of Her Majesty, or intrusted to the offender or received or taken into possession by him in virtue of his employment ; or (/•) ^who steals a post letter bag sent by a post office packet, or takes a letter out of such bag, or unlawfully opens such bag. Article 352. thefts punishable with penal servitude for seven YEARS. 3 Every one commits felony, and is liable upon conviction thereof to seven years penal servitude, who steals any chattel or fixture of the value of more than £5, let to be used by him or her in or with any house or lodging, whether the contract was entered into by the offender or his wife, or her husband, or by any person on his or her, or on her husband's, behalf. If the value of the thing stolen do not exceed £5, the .offender is liable to two years imprisonment and hard labour. * Every one commits a felony and is liable on conviction thereof to penal servitude for seven years or imprisonment for three years who being employed under the Post Office -steals or destroys a j^ost-letter. 1 24 & 25 Vict. c. 96, ss. 69, 70. 2 7 Will. 4 & 1 Vict. c. 36, s. 29 ; for punisluaent see ss. 41, 42, and for definitions s. 47. 3 24 & 25 Vict. c. 96, s. 74, W. 4 7 Will. 4 & 1 Vict. c. 36, s. 26. 292 A DIGEST OF Article 353. thefts punishable with penal servitude for five YEARS. Every one commits felony, and is liable upon conviction thereof to five years penal servitude, who does any of the following things (that is to say) : (a.) ^ who steals or for any fraudulent purpose destroys, cancels, obliterates, or conceals the whole or any part of any - document of title to lands ; or (&.) ^ who steals or for any fraudulent purpose takes from its place of deposit for the time being, or from any person having the lawful custody thereof,^ or unlawfully and mali- ciously cancels, obliterates, injures, or destroys the whole or any part of any of the judicial or official documents mentioned below ; ^ or (c.) ^ who steals, rips, cuts, • severs, or breaks, with intent to steal, any glass or woodwork belonging to any building 1 24 & 25 Vict. c. 96, s. 28. ^ The term "document of title to lands" includes "any deed, map, paper, or parchment written or printed, or partly written and partly printed, being or containing evidence of the title, or anj^ part of the title, to any real estate, or to any interest in or out of anj' real estate " (Ibid. s. 1). ^ Ibid. s. 30. ■* Taking a warrant of execution from a county court bailiff, under the impression that his authority depends on its possession, is ''a taking for a fraudulent purpose," but is not stealing under this section : It. v. Bailey, 1872, 1 C. C. R. 347. ■^ Any record, writ, return, panel, process, interrogatoiy, deposition, affidavit, rule, order, or warrant of attorney. Any original document whatsoever belonging to any Court of record, or relatmg to any matter civil or criminal begun, depending, or terminated in any such Court. Any l)ill, petition, answer, interrogatory, deposition, affidavit, order or decree, or any original document whatsoever of or belonging to any Court of Equity, or relating to any cause or matter begun, depending, or terminated in any siich Coiirt. Any original document in anywise relating to the business of any office or employment under Her Majesty, and being or remaining in anj' office appertaining to any Court of Justice, or in any of Her AIajest3"s castles, palaces or houses, or in any government or puljlic office. •j 24 & 25 Vict. c. 96. s. 31, S., as in case of simple larceny. The words " burial ground " were added to do away with a doubt expressed by Baron Bramwell m R. v. Jone-v, 1858, D. & B. 555, as to whether a churchyard was a "public place" witliin 7 & 8 Geo. 4, c. 29, s. 44. The other THE CRUnXAL LAW 293 whatsoever, or any ^ metal, or any utensil or fixture of what- ever material, fixed in or to any building 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 jjublic use or ornament, or in any burial ground ; or {cl.) '^ who steals, or cuts, breaks, roots up, or otherwise destroys or damages with intent to steal the whole or any part of any tree, sapling, or shrub, or any underwood, if the value of the article or articles stolen, or the amount of the injury done exceeds £5, or exceeds the value of £1, if the article or articles stolen or damaged grow in any park, pleasure gi-ound, garden, orchard, or avenue, or in ground adjoining or belonging to any dwelling-house ; or (e.) 3 who steals, or cuts, breaks, roots up, or otherwise destroys, or damages, with intent to steal the whole or any part of any tree, sapling, or shrub, or any underwood, the value of the thing stolen, or the amount of the damage done, being a shilling at the least after being twice sum- marily convicted of such offence ; or (/•) * '^^'1'^'^ steals, or destroys, or damages with intent to steal any plant, root, fruit, or vegetable production, growing in any garden, orchard, pleasure ground, nursery ground, hothouse, greenhouse, or conservatory after having been summarily convicted of such offence ; or (ff.) '" who steals any oysters or oyster brood from any oyster bed, laying, or fishery, being the property of any judges did not share this doubt. The present enactment does not absohitely remove it, as there are many churchyards which are not burial grounds. However, the case of R. v. Jonts distinctly decided the point. ^ " Lead, iron, copper, brass, or other metal." - 24 & 2.5 Vict. c. 96, s. .32, W. The section is rearranged for the sake of brevity, and the word " grow " substituted for "grows " to meet the grannnar. The change also represents the sense, for it has been held that in estimating the damage done the value of several trees injured at the same time may be put together : R. v. Sh-phcrd, 1808, 1 C. C. R. 118. 2 Ibid. s. .33. " Ibid. s. 36. '" Ibid. s. 26. 294 A DIGEST OF other person and sufficiently marked out and knoA\'n as such ; or (h.) ^ who maliciously or fraudulently abstracts, causes to be wasted or diverted, consumes or uses any electricity. 2 Every one who commits any of the offences specified in clauses (c), (d.), (/), or (g.), after being previously convicted of any misdemeanor indictable under 24 & 25 Vict. c. 96, or after two previous summary convictions under 24 & 25 Vict, c. 96, or c. 97, or any Act mentioned in note (2) to Article 347, is liable to seven years penal servitude. Article 354. thefts punishable with imprisonment." * Every one is guilty of felony and is liable to two years imprisonment with hard labour, who steals or severs with intent to steal the ore of any metal or any lapis calaminaris, manganese, or mundick, or any wad, black cawke, or black lead, or an}' coal or cannel coal from an}' mine, bed, or vein thereof respectively. ^ Every one is guilty of misdemeanor and is liable to fine and imprisonment with hard labour who fraudulently retains, 1 45 & 46 Vict. c. 56, s. 23, declares that every such person shall be " giiilt}- of simple larceny and punishable accordingly." " Electricity' " is defined in s. 32 as meaning " Electricity, electric current or any like agency." ProbaT)ly the latter applies only to electricity used com- mercially. It would hardly ajiply to a person who in oriler to spoil a philosophical experiment malicious!}' caused electricity to be wasted. - 24 & 25 Vict. c. 96, s. 8, W. , makes this provision as to all offences punishable under the Act as simple larceny. It can hardl}' have been intended to make (e) punishable with seven or five j'ears penal servitude, though this seems to be its effect if it is to be taken literall}'. The offences in question are created b}' ss. 26, 31, 32, 33, 36. The case of a conviction of one of these oifences after a previous conviction for felony is provided for, I suppose, bj' 7 & 8 Geo. 4, c. 28, s. 11. See Ai'ticle 19, ante. ^ Other similar offences punishable summarily will Ije found in Oke's Synopsis under the title Larceny in Vol. I. In the last edition of this work thev were set out in Art. 328. * 24 &'^25 Vict. c. 96, s. 38. ■'• 7 Will. 4 & 1 Vict. c. 36, s. 31. Sees. 43 as to hard labour, and s. 47 for definitions. THE CRIMINAL LAW 295 or wilfully secretes, keeps or detains, or being required to deliver up by an officer of the Post Office, neglects or refuses to deliver up, a post letter which ought to have been delivered to any other person, or a post letter bag, or a post letter which has been sent whether found by him or another person. ^ Every one commits a misdemeanor and is liable to eighteen months imprisonment and hard labour who steals any dog, or unlawfully has in his possession or on his premises any stolen dog, or the skin of any stolen dog, knowing such dog to have been stolen, or such skin to be the skin of a stolen dog, after having been convicted sum- maril}- of any such offences respectively. Article 355. opening letters. ^ Every one is guilty of a misdemeanor and is liable to a fine of £50 or imi^risonment with ^ hard labour for six months who, not being in the employment of the Postmaster- General wilfully and maliciously with intent to injure any other person opens, or causes to be opened, any "* letter which ought to have been delivered to the other person ; or does any act or thing whereby the due delivery of such letter to such other person is prevented or impeded ; provided that this Article does not apply to an}' parent or person in the position of a parent or guardian of the person to whom the letter is addressed. Article 350. unlawfln.ly dredging for oysters. ^ Every one is guilty of a misdemeanor and is liable to 1 24 & 25 Vict. c. 96, ss. 18, 19. - 54 & 55 Vict. c. 46, s. 10 ; the prosecution of this offence must be by the direction of the Postmaster-General. ^ As to hard labour, see Ibid. s. 12 (2) and 7 Will. 4 & 1 Vict. c. 36, s. 42. 4 For a definition, see 54 & 55 Vict. c. 46, s. 10 ; 38 Vict. c. 22, s. 10 ; 47 &48 Vict. c. 76, ss. 19, 20. 5 24 & 25 Vict. c. 90, s. 26. 296 A DIGEST OF imprisonment with hard labour for three months who unlawfully and wilfully uses any dredge or any net, instru- ment, or engine 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 oyster brood, although none shall be actually taken ; or unlawfully and wilfully drags upon the ground or soil of any such fishery, with any net, instrument, or engine. Article 357. soliciting to commission of offences under the post office acts. ^ Every one commits a misdemeanor and is liable to imprisonment with hard ^ labour for two years, who solicits or endeavours to procure any other person to commit a felony or misdemeanor punishable by the Post Office Acts. 1 7 Will. 4 & I Vict. c. 36, s. .36. -' Ibid. s. 42. THE CRIMINAL LAW 297 CHAPTER XLI 1 OBTAINING PROPERTY BY FALSE PRETENCES AND OTHER CRIMINAL FRAUDS AND DEALINGS WITH property Article 358. obtaixing goods, etc., by false pretences. Every one commits a misdemeanor, and is liable upon conviction thereof to five years penal servitude, who (rt.) ■' by any false pretence obtains from any other person any chattel, money, or valuable security with intent to defraud, or who, (h.) ^ with intent to defraud or injure any other person by any false pretence, fraudulently causes or induces any other person to * execute any valuable security, or to write, im- press, or affix his name, or the name of any other person,^ upon any paper or parchment, in order that the same may afterwards be made or converted into, or used or dealt with as, a valuable security. It is not an offence to obtain by false pretences any chattel which is not the subject of larceny at common law, but it is immaterial whether such a chattel so obtained is or is not in existence at the time when the false pretence is made if the thing when made is obtained by the false pretence. It is not an offence to obtain credit in a jDartnership ac- count by false pretences as to the amount which a partner is entitled to charge against the partnership funds. 1 3 Hist. Cr. Law, 160-2. - 24 & 25 Vict. c. 96, s. 88, as explained by the cases. ■" Ibid. s. 90. This section was meant to cover such cases as R. v. Danger, 1857, 7 Cox, C. C. 303 ; D. & B. 307, and greatly extends the old law on the subject. See Mr. Greaves's note to the section in his edition of the Acts. * "Make, accept, endorse, or destroy the whole or any part of." ^ "or of any company, firm, or co-partnersliip, or tlic seal of any body corporate, company, or society." 298 A DIGEST OF Illustrations. (1.) ^ A obtains two pointers worth £5 each by a false pretence. This is not an offence within this Article. (2.) " A orders a van from B, and gets it made and delivered by falsely pretending to be agent to a company. This is an offence, although the van was not in existence when the pre- tence was made. (3.) 2 A travels as agent for his partners, and obtains commis- sion from them by falsely pretending he has received orders. His commission would form a charge on the partnership funds. This is not an offence within this Article. Article 359. definition of " false pretence." The expression " false pretence," in Article 358, means a false representation made either by words, by writing, or by conduct, that some fact exists or existed, and such a repre- sentation may amount to a false jDretence, although a person of common prudence might easily have detected its falsehood b}' inquiry, and although the existence of the alleged fact was in itself impossible. But the expression " false joretence " does not include (a.) a 25i"omise as to future conduct not intended to be kept, unless such promise is based upon or implies an exist- ing fact falsely alleged to exist ; or, (b.) such untrue commendation or untrue depreciation of an article which is to be sold as is usual between sellers and buyers, unless such untrue commendation or untrue depreciation is made by means of a definite false asser- tion as to some matter of fact capable of being positively determined. Illustrations. (1.) *A, not being a member of the University of Oxford, 1 B. V. Rohimon, 1859, Bell, 34. 2 R. v. Alartin, 1867, I C. C. R. 56. 3 R. V. Evana, 1862, L. & C. 755. lam unable to follow the reasoning of this judgment. * R. V. Barnard, 1837, 7 C. & P. 784. The defendant said he was a THE CRIMINAL LAW 299 represents himself to be such by wearing a student's cap and gown, and thereb}' obtaining a pair of straps from a tradesman in Oxford. This is a false pretence by conduct. (2.) ^ A presents a note for ^5 as a good note for that amount, knowing that the bank by which it was issued had stopped. This is a false pretence by conduct. (3.) " A gives a cheque in discharge of a debt. This is a representation that A has authorit}' to draw upon the bank for the amount of the cheque, and that the cheque is a good and valid order for the payment of money. If these representations are untrue to the knowledge of A, and if he intends to defraud and obtain goods by making them, he commits the offence of obtaining goods by false pretences, but the mere giving of a cheque is not necessarily a representation that the drawer has funds at the bank to meet it. (4.) ^ The secretary of an Odd Fellows' lodge tells a member that he owes the lodge 13s. %d. and thereby obtains that sum from him, whereas in fact he owed only '2s. '2d. This is a false pretence, though an inquiry might easily have been made. (5.) * A represents to B that A has power to bring back B's husband (who has run away) over hedges and ditches, and that a certain stuff which A has is sufficient and effectual for that purpose, and thereljy obtains from B a dress and two sixpences. This is a false pretence, although the alleged fact is impossible. (6.) ^ A tells B that A is going to pay his rent on the 1st of March, and wants £10 to make up his rent, whereby he obtains £10 from B. This statement though false is not a false l^retence, as it relates to something intended to be done at a future time. member of Magdalen College, but Bolland, B. , said he would have left the case to the jury on the mere wearing of the dress if nothing had been said. 1 Per Compton, J., in R. v. Evam, 1859, Bell, C. C. 192. The rest of the Court seemed to be of the .same opinion. ^ B. V. Hazhton, 1874, 2 C. C. R. 134. See, too, 7?. v. Jackson, 1813, 3 Camp, 370 ; B. v. Parler, 1837, 2 Moo. 1. There was some slight difference of opinion (or rather of expression) amongst the judges in this case. The judges were anxious to point out that to give a cheque on a bank whei'e the drawer has no balance is not necessarily an offence, as he may have a right to overdraw or a reasonable expectation that if he does his diafts will be honoured. These considerations would seem to affect not the falseness of the pretence, but the defendant's knowledge of its falsehood and his intent to defraud. 3 Woolley'n Case, 1850, 4 Cox, C. C. 251 ; 1 Den. 559. .See, too, L'. v. Jessop, 1858, D. & B. 442. 4 B. V. Gile.'<, 1865, L. & C. 502. ■> Zee's Case, 1863, L. & C. 309. 300 A DIGEST OF (7.) ^ A falsely tells B that A has bought skins, and wants £4: 10s. to fetch them by the railway, and that he will sell them to B if B will let A have the £4 10s. on account, which B does, partly because B believes that A has bought the skins, and partly because B believes that A will sell the skins to B. This is a false pretence, as part of it alleges falsely an existing fact. (8.) '^ A obtains money from B by promising to marry her, and to furnish a house with the money, representing himself to be an unmarried man. A in fact is married. The representa- tion that A was unmarried is a false pretence, though the promises based upon it would not have been false pretences without it. (9.) ^ A tells B that A is prepared to give him £100 on his signing a document ; on his doing so A refuses to give him more than £60. A's statement is a false pretence, because it is equivalent to a statement that the money was ready for B on his signing the paper. (10.) * A induces B to lend him money by saying that certain spoons are of the best quality, that they are equal to Elkington's A (a description known in the trade), that the foundation is of the best material, and that they have as much silver in them as Elkington's A. These words being construed as mere exaggeration of the quality of the spoons, and not as containing a statement of a definite fact as to the quality of silver in the spoons, are not a false pretence. (11.) ^ A induces B to buy a chain by saying, " It is 15-carat gold, and you will see it stamped fine on every link. It was made for me, and I paid nine guineas for it. The maker told me it was worth £5 to sell as old gold." The chain had on every 1 B. v. West, 1858, D. & B. 575. 2 B. V. Jennison, 1862. L. & C. 157. ^ B. V. Gordon, 1889, 23 Q. B. D. 354. * B. V. Bryan, 1857, D. & B. 265. This, I think, is the true view of the case. Willes, J., and Bramwell, B. , thought the conviction should be sustained on the ground that the representation that the spoons had as much silver on them as Elkington's A was a specific false pretence as to an existing fact. Ten other judges (Campbell, C.J., Cockburn, C.J., Pollock, C.B. , Coleridge, Cresswell, Erie, Crompton, Crowder, JJ., and Watson and Channel, BB. ) all said in different words that the language used was mere puffery. The principle does not appear to have been doubted. The case is often, but I think wrongly, supposed to decide that a misrepresentation as to quality cannot be a false pretence. This depends on the further qiiestion whether the representation is made by means of alleging the existence of a fact which does not exist. B. v. Foster, 1877, 2 Q. B. D. 301, is a later illustration of the principle of B. V. Bryan. 5 B. V. Ardley, 1871, 1 C. C. K. 301. THE CRIMINAL LAW 301 link the mark 15-ct. The chain in fact was 6-carat gold, worth in all £3 Os. Zd. This is a false pretence. Article 360. of " obtaining." ^ The word " obtains," in Article 358, means an obtaining by the offender ft-om the owner, with an intent on the part of the offender to dejDrive the owner permanently and en- tirely of the thing obtained, and it includes cases in which things are obtained by a contract which is obtained by a false pretence, unless the obtaining under the contract is remotely connected with the false pretence. ^ Whoever, by any false pretence, causes or procures any money to be paid, or any chattel or valuable security to be delivered to any other jjerson for the use or benefit, or on account of the person making such false pretence, or of any other person, with intent to defraud, is deemed to have ob- tained such money, chattel, or valuable security within the meaning of Article 358. ^ If the person from whom anything is'obtained by a person making a false pretence is not deceived by such false pre- tence, but delivers the thing intended to be obtained by it, knowing the pretence to be false, such thing is not deemed to have been obtained by such pretence. ^ If a thing is obtained by the joint effect of several false pretences, any one of which is a false pretence within the meaning of the last Article, and if the thing would not have been obtained without that false pretence, it is deemed to have been obtained by such false pretence. Illustrations. (1.) ""A draws a ])ill upon B in London and gets it discounted 1 Illustrations (l)-(6). 2 24 & 25 Vict. c. 96, .s. 89. •^ Illustration (7). •* Illustration (8). 5 R. V. Garrttt, 1853, D. & P. 232. 302 A DIGEST OF by C in Russia by falsely pretending, by means of a forged authority, that he is authorised to draw upon B for the amount of the bill. A does not attempt to oljtain money by false pretences fi'om B, though he meant that C should forward the draft to B, and should obtain payment of the amount, and though his act if done in England would have been an ol:)tain- ing by false pretences from C. (2.) 1 A by a false pretence obtains from B, a livery stable keeper, the use of a horse for the day, for which he would have been charged 7s. This is not obtaining goods by false pretences, as the horse was returned. (3.) ^ A, by false pretences, induces B to enter into partner- ship with him, and to advance £500 as part of the capital of the concern. B treats the partnership as an existing one, and endeavours to dispose of his interest in it. A has not obtained £500 by false pretences, as B, as partner, retained his interest in it. (4.) '^ A induces B to buy a cheese at a higher price than it is worth, by inserting in it a taster of superior quality to the rest of the cheese, and so making B believe that the whole cheese was of the same quality as the taster. This is obtaining money by a false pretence. (5.) "* A induces B to lend him £100 on a deposit of title- deeds to land, by falsely pretending that a house has been built upon it worth £300. This is obtaining £100 by a false pretence. (6.) ^ A, by falsely pretending to be a naval officer, induces B to enter into a contract to board and lodge him at a guinea a week, and under this contract is supplied with food for a week. This is not obtaining food by false pretences, as the supply of food in consequence of the contract is too remotely the result of the false pretence to become the subject of an indictment. (7.) '^ A makes a false pretence to B to obtain money, which pretence is false to B's knowledge. B pays A the money and prosecutes him for obtaining it by a false pretence. This is not obtaining money by a false pretence. ( ?i., r ^ ^pf .i r-L \ 1 R. v. Kliham, 1870, 1 C. C. R. 261. - B. V. Waf.^on, 1857, D. & B. 348. The judges guarded in their judgment against the notion that fraudulently inducing a man to enter into a partnership could in no case be within the statute, as, for instance, in the case of the alleged existence of any trade which was a false pretence. 3 B. v. Ahboff, 1847, 1 Den. 273. 4 i?. v. Buryon, 1856, D. & B. 11. ■' B. V. Gardner, 1856, D. & B. 40. " B. V. Mills, 1857, D. & B. 205. It was, however, an attempt to obtain money by a false pretence. THE CRIMINAL LAW 303 (8.) A falsely pretends to B, 1, that he is an unmarried man ; 2, that he will marry B ; 3, that if B will give him £8 he will furnish a house for himself and her to live in after marriage. By these false pi-etences he obtains the £8. He is deemed to have obtained the £8 by the false pretence that he is an unmarried man, which is a false representation as to an existing fact. Article 361. intent to defraud. An intent to defraud, in the case of offences against Article 358, is consistent with an intent to undo the effect of the fraud if the offender should be able to do so. Illustration. ^ A by false pretences induces B to let him have some carpets, intending to pay for them if he should be able to do so. This is an intent to defraud. Article 362. CHEATING at PLAY. ■^ Every one is deemed guilty of obtaining money or a valuable thing by a false pretence with intent to cheat or defraud, and is liable to be punished accordingly, who wins from any other person to himself or any other or others, any sum of money or valuable thing by any fraud or unlawful device, or ill practice in j^laying at or with cards, dice tables, or other game, or in bearing a part in the stakes, wagers, or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, pastime, or exercise. 1 R. V. Naylor, 1865, I C. C. R. 4. 2 8 & 9 Vict. c. 109, s. 17. See R. v. Hudson, 1860, Bell, C. C. 263, for an illustration of what does not amount to a " game. " As to "winning," it has been doubted whether the money, &c. , must be actually obtained, or whether winning the game by a false pretence would be within the section if the loser refused to pav the money : R. v. Mos.<<, 1856, D. & B. 104. 304 A DIGEST OF Article 363. obtaining credit, etc., by false pretences. ^ Every one commits a misdemeanor, and is liable upon conviction thereof to twelve months imprisonment and hard labour, who, (a.) in incurring any debt or liability, obtains credit under false pretences, or by means of any other fraud ; or, (&.) with intent to defraud his creditors or any of them makes or causes to be made any gift, delivery, or transfer of or any charge on his property ; or, (c.) with intent to defraud his creditors, conceals or re- moves any part of his property since or within two months before the date of any unsatisfied judgment or order for payment of money obtained against him. Article 364. concealing deeds and incumbrances. ^ Every one commits a misdemeanor and is liable, ujDon conviction thereof, to two years imprisonment and hard labour, who, being a seller or mortgagor of land, or of any chattels, real or personal, or choses in action conveyed or assigned to a purchaser, ^ or mortgagee, or, being the solicitor or agent of any such seller or mortgagor, conceals from the purchaser any settlement, deed, will, or other instrument material to the title, or any incum- brance, or, 1 32 & 33 Vict. c. 62, s. 13 : The Debtors Act, 1869. This section applies to all debtors and not merely to bankrupts and liquidating debtors. B. V. Rowlands, 1882, 8 Q. B. D. 530. 2 22 & 23 Vict. c. 35, s. 24. The Attorney-General's consent is necessarj' to a prosecution for this offence. Wilfully making an affidavit under the Land Transfer Act 1875, containing a statement false in anj' material particular, is a misdemeanor punislialile with two years imprison- ■ ment witli hard labour, 38 & 39 Vict. c. 87, s. 101. As to certain frauds on the registration of titles, see 25 & 26 Vict. c. 53, ss. 105, 138 ; and 25 & 26 Vict. c. 67, ss. 44, 45. 3 The words " or mortgagee" were added by 23 & 24 Vict. c. 38, s. 8. THE CRIMINAL LAW 305 falsifies any pedigree on which the title does or may depend, in order to induce him to accept the title offered or produced to him. and with intent to defraud. Article 365. conspiracy to defraud or extort. Every one commits the misdemeanor of conspiracy who agrees with any other person or persons to do any act with intent to defraud the public, or any particular person, or class of persons, or to extort from any person any money or goods. Such a conspiracy may be criminal although the act agreed upon is not in itself a crime. ^ An offender convicted of this offence may be sentenced to hard labour. Ilhistrations. The following are instances of conspiracies with intent to defraud. - A conspiracy to defraud the public by a mock auction. ^ A conspiracy to raise the price of the funds by false ruiBours. ^ A conspiracy to defraud the public by issuing bills in the name of a fictitious bank. ^ A conspiracy to induce a person to buy horses b}^ falsely alleging that they were the property of a private person and not of a horse dealer. ^ A conspiracy to induce a man to take a lower price than that for which lie had sold a horse, by representing that it had been discovered to be unsound and re-sold for less than had been given for it. '^ A conspiracy to defraud a partnei' by false accounts, the fravxd not being in itself criminal when it was committed. 1 14 & 15 Vict. c. 100, s. 29. 2 R. V. Lewis, 1869, 11 Cox, C. C. 404. •■' R. V. Dt Beremjer, 1814, 3 M. & S. 67- ■J R. V. Herey, 1782, 2 East, P. C. 858. ■' R. V. Ktvrick, 1843, 5 Q. B. 49. « Carlisle's Cme, 1854, D. & P. 337. 7 R. V. Warburton, 1870, 1 C. C. R. 274 306 A DIGEST OF ^ A conspiracy to defraud t^enerally by getting a settling day for shares of a new company. Article MQ. pretending to exercise witchcraft. "^ Every one commits a misdemeanor and must upon con- viction thereof, be imprisoned for a year, and may be obliged to give sureties for his good behaviour in such sum and for such time as the Court thinks fit, who pretends to exercise or use any kind of witchcraft, sorcery, enchantment, or con- juration, or undertakes to tell fortunes, or pretends from his j^kill or knowledge in any occult or crafty science to discover where or in what manner any goods or chattels supposed to have been stolen or lost may be found. Article 8(37. cheating. Every one commits the misdemeanor called cheating, who fraudulently obtains the property of another by any deceitful practice not amounting to felony, which practice is of such <. (1.) The following are instances of cheating: — "^ Selling by a false weight or measure even to a single person. ■* Selling clothing with the alnager's seal forged upon it. 1 /.'. V. Aspiiiall, 1876, I Q. B. D. 730. 2 9 Geo. 2, c. o, s. 4. Would it be a good defence to an indictment for this offence to prove that the defendant not only " pretended," but actually practised witchcraft? As to witchcraft, see 2 Hist. Cr. Law, 430-6. 3 R. V. Young, 1789, 3 T. R. 104. * 2 Russ. Cr. 516. TILE CRIMINAL LAW 307 ^ Selling a picture by means of au imitation of the name of a well-known artist inscribed upon it. - ]\Jaiming oneself in order to have a pretext for begging. ■^ .Selling unwholesome bread as if it were wholesome. (2.) The following cases are instances of frauds not amounting to cheating : — ^ Delivering short weight of bread, ncj false weights or tokens being used. ■''Receiving barley to grind and delivering a mixture of oat and Ijarley meal. '' Selling as a Winchester Ijushel a sack of corn which is not a Winchester bushel, but gi'eatly deficient. Ar'I'icle 368. servants feeding horses, etc., against orders, '' Every servant who, contrary to the orders of his master takes from his possession any corn, pulse, roots or other food for the pur])()se of giving the same, or of having the same given, to any horse or other animal belonging to or in the possession of his master is guilty of misdemeanor, and the commission of such offence does not amount to larceny. If upon the trial of any servant for feloniously taking from his master any corn, pulse, roots or other food consumable by horses or other animals he alleges that he took the same tinder such circumstances as would constitute the said misdemeanor and satisfies the jury thereof, they may return a verdict accordingly, and thereupon the Court may award imprisonment with hard labour for three months (jr may inflict a penalty not exceeding five pounds, in case of non- payment of wdiich imprisonment with hard labour for three months may be imposed unless the penalty be sooner paid. 1 E. V. C/os-s 1858, D. & B. 460. ■'- 1 Hawk. P. C. 108 ; 2 Russ. Cr. .51.5. ■5 2 East P. C. 822 ; R. v. Dixon, 1814, 3 M. & S. 11. * R. V. Earihton, 1854, D. & P. 376, 515. 5 R. V. Hayne-s, 1815, 4 M. & S. 214. « Phirhiefs Case, 1733, 2 East, P. C. 818. 7 26 & 27 Vict. c. 103, s. 1. Tliis offence is also punishable siimniaiily, see Oke's Synopsis, p. 444. X 2 308 A DIGEST OF Article 369. fraudulently concealixg ore. 1 Every one commits felony and i.s liable upon conviction thereof to two years imprisonment and hard labour, who, being employed in or about any mine, takes, removes, or conceals any ore of any metal, or any lapis calaminaris, manganese, mundick, or other mineral found, or being in such mine with intent to defraud any proprietor of, or any adventurer in, any such mine, or anj- ^^'orkman or miner employed therein. Article 370. taking marks from public stores. ^ Every one commits felony, and is liable upon conviction thereof to seven years penal servitude, who, with intent to conceal Her Majesty's property in any stores under the care, superintendence, or control of a Secretary of State, or the Admiralty, or any public depart- ment or office, or of any person in the service of Her Majesty, takes out, destroys or obliterates wholl}^ or in part any mark described in the first schedule to the Public Stores Act, 1875 (38 & 39 Vict. c. 25), or any mark whatsoever denoting the property of Her Majesty in any stores. Article 371. concealing treasure trove. ^ Every one commits a misdemeanor who conceals from the knowledge of our Lady the Queen the finding of any treasure, 1 24 & 25 Vict. c. 96, s. 39. Re-enacting earlier provisions. Passed in consequence of decision in li. v. Wthh, 1835, 1 Moo. 431. 2 38 & 39 Vict. c. 25, s. 5. See, too, anfe, Art. 68 ; this Act constitutes man}- offences triable summarily, as to which see Oke's Sj'uopsis, p. 568. 3 3rd Inst. 132. And see R. v. Thomas, 1863, L. & C. 313. THE CRIMINAL LAW 309 that is to say, of any gold or silver in coin, plate, or bullion, hidden in ancient times, and in which no person can show any property. It is immaterial whether the offender found such treasure himself or received it from a person who found it, but was ignorant of its nature. 310 A DIGEST OF CHAPTER XLII ^FRAUDS BY AGEXTS, TRUSTEES, AND OFFICERS OF PUBLIC COMPANIES— FALSE ACCOUNTING AirncLE 372. PUNISHMENT OF MISDEMEANORS IN THIS CHAPTER. Every one who commits any of the misdemeanors defined in this chapter is liable, upon conviction thereof, to seven years penal servitude. Article 378. " misappropriate " DEFINED. - In this chapter the word " misappropriate " means con- verting any of the things in respect of which the offences defined in it are committed to the use or benefit of the offender, or to the use or benefit of any person other than the person by or for whom the offender w^as intrusted there- with. In rey-ard to each of the offences defined in Articles 874, 875, and 876, it is immaterial whether the offender was intrusted with the thing in respect of which the offence was committed solely, or jointly with any other person. Article 874. misappropriations p.v hankers, merchants, etc. 2 Ever}' banker, merchant, broker, solicitor, or^ f)ther agent commits a misdemeanor, 1 3 Hist. Cr. Law, 150-160. 2 This Ai'ticle is simply a diafting abridgment from the sections referred to in the following Articles. 3 24 & 25 Vict. c. 96, s. 75. * i.e. other agent like a banker, merchant, broker, or solicitor. The section is aimed at those classes who cairy on the occupations or similar occupations to those mentioned in the section, and not at those who carry on no snch occupation, but who may happen from time to time to under- take some fiduciary position whether for monev or otherwise : R. v. Portiujal, 1885, 16 Q. B. D. 487, 491. THE CRIMINAL LAW 311 («,) who, having been intrusted as such with any money or security for the payment of money, with any direction in ^ writing to apply, pay, or deHver such money or security or any part thereof respective!}', or the proceeds, or any part of the proceeds of such security, for any pui-pose or to any person specified in such direction, misappropriates the same in violation of good faith and contrary to the terms of such direction ; or (&.) -who, being intrusted as such with any chattel or valuable security, or any power of attorney for the sale or transfer of any ^ stock, for safe custody or for any special pur- pose, and without any authority to sell, negotiate, transfer, or pledge the same, sells, negotiates, transfers, pledges, or mis- appropriates the same, or the proceeds of the same, or any part thereof, or the share or interest to which such power of attorney relates or any part thereof, in violation of good faith and contrary to the object or purpose for which it was intrusted to him ; or (c.) * who, being intrusted as such with the property' of any other person for safe custod}', with intent to defraud, sells, negotiates, transfers, pledges or misappropriates the same or any part thereof ^ Clause (6.) does not extend to an agent who disposes of a chattel, valuable security, or power of attorney according to unwritten instructions given to him, and subsequently misappropriates the proceeds thereof, unless (possibly) he is proved to have had an intention to misappropriate the jiroceeds at the time when he disposed of the chattel, valuable security, or power of attorney ; nor ^ to a solicitor who being intrusted with money to lay out 1 As to what amounts to a direction in writing, see B. v. Chrhtian^ 1873, 2 C. C. R. 94. 2 24 & 25 Vict. c. 96, s. 75. ^ Stock means " 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 bodj' coi-porate, company, or society." ^ 24 & 25 Vict. c. 96, s. 76. 5 This seems to be the effect of R. \. Tatlorh, 1876, 2 Q. B. D. 157, and R. \. Cooper, 1874, 2 C. C. R. 123. In is", y. Tatlorkthe judges were not altogether unanimous. « R. V. Xewman, 1882, 8Q.B.D. 706; R.\: Fullayar, 1879; 14Cox,370. 312 A DIGEST OF on mortgage for his client misappropriates it, unless it appears specifically that he was to keep it with him for safe custody until it could be so invested, ^ Clause (b.) extends to every one who, being authorised to receive money to arise from the sale of any annuities or securities purchased or transferred under the provisions of Part V. of the Municipal Corporation Act 1882 or under any Act repealed by that Act, or any dividends thereon, or any other such money, appropriates the same otherwise than as directed by that Act or by the Treasury in pursuance thereof Article 375. misappropriation under power of attorney, 2 Every one commits a misdemeanor who, being intrusted with any power of attorney for the sale oi- transfer of any property, fraudulently sells or transfers, or misappropriates the same, or any part thereof Article 876. misappropriation by factors or agents. 3 Every factor or agent intrusted, for the purpose of sale or otherwise, with the possession of any ^ goods, or of any docu- 1 45 & 46 Vict. c. 50, s. 117 ; aiithorisiiig the application of securities conti-ary to sect. 124 of the same Act is a misdemeanor punishable as thp Court awards. Ibid. s. 124. 2 24 & 25 Vict. c. 96, s. 77. 3 Ibid. s. 78. ■* Any factor or agent intrusted as mentioned above, " and possessed of any such document of title, whether derived immediately from the owner of such goods, or olitained by reason of such factor or agent having been intrusted with the possession of the goods, or of any other document of title thereto, shall be deemed to have been intrusted with the possession of the goods represented by such document of title ; " a factor or agent is deemed to be in possession of goods whether the same are in his actual custody or held by any other person subject to his control, or for him or on his behalf ; a factor or agent in possession of sucli goods or dociiments is taken to have been intrusted therewitli by the owner thereof unless the contrary is shown. Ibid. s. 79. THE CRIMIXAL LAW 313 ment of title to goods, commits a misdemeanor who, contrary to or without the authority of his principal and for the use or benefit of himself or any person other than the person by whom the goods were intrusted to him, and in violation of good faith, («.) ^ makes any consignment, deposit, transfer, or delivery of any goods or document of title so intrusted to him as and by way of a pledge, lien, or security for any money or valuable security thereon borrowed or received, or intended to be thereafter borrowed and received by him ; or (&.) '^ accepts any advance of any money or valuable security on the faith of any ^ contract or agreement to consign, deposit, transfer or deliver any such goods or document of title. 3 Provided, in each case, that the amount for which such goods or documents are made security in any of the ways aforesaid exceeds the amount justly due to such agent from his principal at the time when the security is given, together with the amount of any bill of exchange drawn by or on account of such principal and accepted by such factor or agent. Article 877. clerks, etc., assisting ix procuring advances. * Every clerk, or other person, who knowingly and wilfully 1 " Every contract, pledging, or giving a lien upon such document of title as aforesaid is deemed to be a pledge of and lien upon tlie goods to which the same relates." 24 & 25 Vict. c. 96, s. 79. - Where anj' loan or advance is hoiiit fide made to any such factor oi- agent on the faith of any contract or agreement in writing to consign, deposit, transfer, or deliver such goods or documents of title, and such goods or documents of title are actually received by the person making the loan or advance without notice of the factor's or agent's want of authority, the loan or advance is deemed to be made on the security of the goods, though tlie goods or documents of title are not actually received by the person making the advance till " the period subsequent thereto," Ibid. s. 79. The necessity for this explanation, which is taken from part of s. 79, is not very obvious, nor do I understand what particular period is referred to by the concluding words. ■* Any contract or agreement, whether made direct with such factor or agent, or with any clerk or other person on his behalf, is deemed to be a contract or agreement with such factor or agent, Iliid., s. 79. Of course it is. 4 Ibid., s. 78. 314 A DIGEST OF acts and assists in making any ^ security, or accepting or procuring any advance mentioned in Article 376, commits a misdemeanor. Article 878. fraudt^lext trustees. - Every ^ trustee of" any property for the use or benefit, either wholly or partial!}-, of some other person, or for any public or charitable purpose, who with intent to defraud mis- appropriates the same, or otherwise disposes of or destroys such property or any part thereof, commits a misdemeanor. A public purpose is such a purpose as would be recognized as p\d>lic in a court of law, and not a purpose the execution of which is a matter of public importance. Illustrations. * The trustees of a savings Ijank, which has printed rules, one of which directs the manner in which the funds are to be invested, are trustees on an express trust created b}^ an instrument in writing, but not for a public purpose. •''The purposes of an institution exempted from lialality to the poor-rate would be public. Article 379. frauds by directors and public officers.'' Every director or public officer of any body corporate or public company commits a misdemeanor who 1 " Any such consignment, deposit, transfer, or delivery." '■^ 24 & 25 Vict c. 96, s. 80. '•'■ "Trustee"' means a "trustee on some express trust created by some deed, will, or instrument in writing, and shall include the heir or personal representative of any siich trustee and any other person upon or to whom the duty of such trust shall have devolved or come, and also an executor and administrator, and an official manager, assignee, liquidator, or other like officer acting under any present (6 Aug. 1861) or future Act i-elating to joint stock companies, bankruptcv, or insolvency" : Ibid. s. 1. 4 R. V. Fletcher, 1862, L. & C. 180. ^ Ibid. L. & C. at p. 203. '' The following frauds similar to, but more special than, those men- tioned in the text are punished as follows : — A director, officer, or THE CHIMIXAL LAW 315 («.) ^ fraudulently takes, or applies for his own use or benefit, or for any use or purposes other than the use or purposes of such body corporate or public company, any of the property of si;ch body corporate or public company : or (?v.)2as such receives or possesses himself of any of the property of such body corporate or public company, other- wise than in payment of a just debt and demand, and, with intent to defraud, omits to make, or to cause and direct to be made, a full and true entry thereof in the books and accounts of such body corporate (tr public company ; or (c.)^with intent to defraud, destroys, alters, mutilates or falsifies any l)ook, paper, writing, or valuable security belonging to the body corporate or public company : or makes or concurs in the making of any false entry : or omits or concurs in omitting any material particular in any book of account or other document : or (f?.) ■* makes, circulates or publishes, or concurs in making, circulating or publishing, any written statement or account which he knows to be false in any material particular with intent to deceive or defraud any member, shai-eholder, or creditor of such body corporate or public company : 24 & 25 Vict. c. 98, s. 48. This section is exceedingly verbose, and is not likely to be put in force. I have therefore greatly abridged it. To judge from the Index to the Revised Statutes, it can apply only to 334 A DIGEST OF pimishable under the 24 & 25 Vict. c. 98, and which consists in forging or uttering any document, or acting under a forged document or personation, or making or being in possession of instruments for making any kind of paper, or other offence of the same nature. Article 389. forgeries punishable with fourteen years pexal servitude. Every one commits felony, and is liable upon conviction thereof to fourteen years j^enal servitude, Avho with intent to defraud ^ forges or utters : (a.) ^ any debenture issued under any lawful authority either within Her Majesty's dominions or elsewhere ; (&.) ^ any ^ document made under any Act in force for the time being relating to the registry of deeds, or the seal or any impression of the seal of any office for the registry of deeds, or anything purporting to be the name, handwriting, or signature of any person to any such document required to be signed by the law for the time being ; or any document mentioned in {h) having thereon any such forged stamp, impression, name, handwriting, or signature ; (c.) ^any ^instrument made, or purporting or appearing to be made, by ' any of the officers mentioned in the note 52 Geo. 3, c. 143, s. 6, referring to forging certificates, &c.,of redemption of the land tax where the punishment was originally death, and was reduced to transportation for life bj' I Will. 4, c. 66, s. 1. 1 24 & 25 Vict. c. 98, s. 26, " shall fraudulently forge or alter or shall " utter; s. 31, "shall forge or fraudulently alter or shall" utter; s. 33, " whoever with intent to defraud shall forge or alter," &c. I see no difference in the meaning of these phrases, nor do I understand why they are varied. The word " forge " in itself implies an intent to defraud. 2 24 & 25 Vict. c. 98, s. 26. 3 Ibid. s. 31. 4 any memorial, affidavit, affirmation, entr}', certificate, endorsement, document or writing. '• 24 & 25 Vict. c. 98, s. 33. *< "certificate, repoi't, entry, endorsement, declaration of trust, note, direction, authority, instriunent, or writing." "t The Accountant-General, or any other the officers of the Court of Chancery in England and Ireland, any judge or officer of the Landed THE CRIMINAL LAW 335 hereto, or the name, handwriting, or signature of any such officer ; or ((/.) ^ who " draws any bill of exchange or order for the delivery or transfer of ^ goods by procuration or otherwise for, in the name, or on the account of any other person without lawful authority or excuse, or utters any such bill or order knowing it to be so drawn ; or (e.) * who ^ demands oi' obtains an}- ^ property whatso- ever, under, upon, or by virtue of any forged instrument whatsoever, knowing it to be forged, or under, upon, or by virtue of any probate or letters of administration, knowing the " will on which such probate or such letters of administra- tion were obtained to have been forged, or knowing the pro- bate of letters of administration to have been obtained by an}- false oath, affirmation, or affidavit. ^ (/.) or who forges a die or stamp ; or • ^ (^.) kno\^dngly sells or exposes for sale, or utters, or uses any forged stamp, or any stamp which has been fraudulently printed or impressed from a genuine die ^ ; or (A.) causes or procures to be done, or knowingly aids, abets, or assists in doing any of the acts mentioned in (/) and {g). Estates Court in Ireland, every officer of every Court in England or Ire- land, every cashier or other otficer or clerk of the Governor and Companj' of the Bank of England or Ireland. 1 24 & 25 Vict. 0. 98, s. 24. - "draw, make, sign, accept, or indorse." '■'■ " any bill of exchange or promissory note, or ai\y undertaking, warrant, order, authority, or request for the pajanent of money, or for the delivery or transfer of goods or chattels, or of any bill, note, or other security for money." A document which is in form a receipt may be in substance a warrant, &c. K. v. Kay, 1870, 1 C. C. R. 29. * 24 & 25 Vict. c. 98, s. 38. •'' "demand, receive, or obtain, or cause or procure to be delivered or paid to any person, or endeavour "' to do any such thing. •5 " chattel, money, security for money, or other property whatsoever." " "testament, codicil, or testamentary writing." s 54 & 55 Vict. c. 38, s. 13 (1) and (8) ; see note 2 ^jcsC p. 348 for definition of " forge " " stamp " &c. '-• Any person appointed to sell and distribute stamps, or lieing or having been licensed to deal in stamps, found in possession of forgeil stamps, is deemed, until the contrary is proved, to be guilty of this offence. Ibid. s. 18. 336 A DIGEST OF Article 890. forgeries punishable avith seven years penal servitude. Eveiy one commits felony, and is liable upon conviction thereof to seven years penal servitude, who {a) ^ forges the seal of any Court of record ; or (h.) - forges or utters any process of any Court of justice whatever, or serves or enforces any such forged process knowing it to be forged, or delivers, or causes to be delivered, to any person any paper falsely pui-porting to be any such process, or a copy thereof, or to be any judgment, decree, or order of any Court of law or equity, or a copy thereof, or acts, or professes to act, under any such false process knowing (in any such case) such process to be false ; or (c.) ^ forges or utters any copy or certificate of any record, or utters any such copy or certificate having thereon any forged name, handwriting, or signature ; or {d.) * forges or utters ^ any original document whatever of any Court which, on the 6th of August, 1861, Avas a Court of record, of equity, or of Admiralty in England or Ireland, or any document, or copy of a document, used, or intended to be used, as evidence in any such Court ; or 1 Clause (a.) represents part of 24 & 25 Vict c. 98, s. 28, which occurs in the middle of the section. The statute says nothing in this case of forging the stamp or impression of such seals. - Clause (h.) represents the effect of that part of sect. 27, which makes it an offence, inter alia, to forge the process of certain Courts named, combined with that part of sect. 28 which makes it an offence to forge the process of any other Coiirt than those mentioned in sect. 27, and to serve the forged process of any Court whatevei'. These sections are singularly cumbrous and ill-arranged, besides being intolerably wordy. •^ 24 & 25 Vict. c. 98, s. 28. 4 Ibid. s. 27. ^ " recoi'd, writ, return, panel, process, ride, order, warrant, inter- rogatory, deposition, affidavit, affirmation, recognizance, cognovit ac- tionem, or warrant of attorney, or any original document whatsoever of or belonging to any Coitrt of lecord, or any bill, petition, process, notice, rule, answer, pleading, interrogatory, deposition, affidavit, affirmation, report, order, or decree, or any original document whatsoever " of tlie other Courts named. As the Courts of Equity and Admiralty in England now form divisions of tlie High Court, the distinction between the different classes ,of documents would seem to liave ceased to exist. THE CRIMINAL LAW 337 (c.) 1 who, being the clerk of any Court or other officer, or deputy of the clerk or officer having custody of the records of any Court, utters a false copy or certificate of any record ; or (/.) 2 who, not being such officer or deputy, signs or cer- tifies any copy of any record or certificate as such officer or deputy ; o)- (r/.) ^ who forges or utters any instrument, whether written or printed in whole or in part, made evidence by any Act of Parliament in force for the time being, and not mentioned specifically in any other Article of this chapter : or ^ any license of or certificate for marriage ; or ^ the ^ signature of a witness attesting the execution of any power of attorney or other authority to transfer any interest in any stock mentioned in the first paragraph of Article 388 (b.) or (/.), or to receive any dividend or money payable in respect thereof; (A.) "^ who, being a clerk, officer, or servant or other person employed by the Bank of England or Ireland, knowingly and with intent to defraud makes out or delivers any divi- dend warrant or warrant for the payment of any annuity, interest, or money payable at either of the said banks for an amount greater or less than that to which the person on whose behalf such warrant is made out is entitled ; (i.) ^ who forges the seal or any process of a County Court, or who serves or enforces such forged process, knowing the same to be forged, or delivers or causes to be delivered to any person any paper falsely purporting to be a copy of any summons or other process of the said Court knowing the same to be false, or acts or professes to act under any false 1 24 & 25 Vict. c. 98, s. 28. 2 Ibid. s. 28. 3 Ibid. s. 29. 4 Ibid. s. 35. 5 Ibid. s. 4. ^ "any name, handwriting, or signature purporting to be t lie name, &c., of." 7 24 & 25 Vict. c. 98, s. 6. 8 51 & 52 Vict. c. 43, s. ISO. 338 A DIGEST OF colour or pretence of the process or authority of the said Court ; ^ (k.) who forges, counterfeits, or fraudulently alters the seal or signature of any person authorized by or under the Com- missioners for Oaths Act 1889 (52 Vict. c. 10) to administer an oath, ^ affirmation, or declaration. Article 891 forgery punishable with five years pexal servitude. ^ Every one commits felony, and is liable upon conviction thereof to ^ five years penal servitude, who forges or utters any summons, conviction, order, or warrant, of any justice of the peace, or any recognizance purporting to have been entered into before any person authorized to take it, or any examination, deposition, affidavit, affirmation, or solemn declaration taken or made before any justice of the peace. Article 392. false entry as to copyright. ^ Every one is guilty of a misdemeanor who wilfully makes or causes to be made any false entry in the registry book of the Stationers' Company. Article 893. DEFACING rate BOOKS. ^ Every jDcrson is guilty of a misdemeanor who wilfully injures, defaces, conceals, or destroys a rate book, assessment, 1 52 Vict. c. 10, s. S. 2 Ibid. s. II. 3 24 & 25 Vict. c. 98, s. 32. * This was originallj^ three years, but was raised to five years by 27 & 28 Vict. c. 47, s. 2 ; but three years is now the minimum, see 54 & 55 Vict. c. 69, s. I. 5 5 & 6 Vict. c. 45, s. 12. « 25 & 26 Vict. c. 103, s. 40. THE CRIMINAL LAW 339 or valuation required to be produced before an assessment committee. Article 394. forging ballot papers. ^ Every person is guilty of a misdemeanor, and is liable to imprisonment with hard labour for two years, if he is a returning officer or an officer or clerk in attendance at a polling station, or for six months if he is any one else, who {a.) forges or fraudulently defaces or fraudulently destroys any nomination paper, or delivers to the returning officer any nomination paper knowing the same to be forged ; or (&.) forges or counterfeits or fraudulently defaces or frau- dulently destroys any ballot paper, or the official mark on • any ballot paper. Article 395. forging telegrams. "' Every one commits a misdemeanor, and is liable to imprisonment with hard labour for twelve months, who forges or wilfully and without due authority utters a ^ tele- gram, or transmits by telegraph as a telegram, or utters as a telegram, any message or communication which he knows not to be a telegram, whether he had or had not an intent to defraud. Article 396. making or possession of paper, etc., for forging bank notes punishable with fourteen years penal servitude. Every one commits felony, and is liable on conviction thereof to fourteen years penal servitude, who does any of 1 35 & 36 Vict. c. 33, s. 3. - 47 & 48 Vict. c. 76, s. 1 1 ; lliis offence is also punishable summarily, see Oke's Synopsis, p. 632. •^ For the definition of a telegram, see Note (6), p. 92. z 2 340 A DIGEST OF the following things without lawful authority or excuse, the proof whereof lies upon him (that is to say) : (a.) ^ who purchases or receives from any person, or has in his custody or i^ossession any forged - or blank bank-note, knowing it to be forged ; or (b.) ^who makes, uses, sells, exposes to sale, utters, or knowingly has in his custody or possession any "^ bank-note paper, or any frame, mould, or instrument for making such paper, or who by any art or contrivance causes the numerical sum or amount of any bank-note ^ or blank bank-note in a word or words in Roman letters to appear visible in the substance of the paper whereon the same is written or printed, or who causes any of the words or marks mentioned in the definition of bank-note paper given in the footnote to appear in the substance of any paper ; *^ provided that nothing in this Article is to prevent any person from issuing any bill of exchange or promissory note having the amount thereof expressed in guineas, or in numerical figures denoting the amount thereof in pounds sterling, aj)pearing visible in the substance of the paper upon which the same is written or printed ; " 1 24 & 25 Vict. c. 98, s. 13. ■^ " Any forged bank-note, bank bill of exchange, or bank post bill, or blank bank-note, blank bank bill of exchange, or Ijlank bank post bill." 3 24 & 25 Vict. c. 98, s. 14. '' Bank-note paper means " anj' paper whatsoever with the words ' Bank of England,' or ' Bank of Ireland,' or any part of such words intended to resemble and pass for the same, visible in the substance of the paper, or any paper with curved or waAing bar lines, or with the laying wire lines thereof, in a waving or curved shape, or with any number, sum, or amount expressed in a word or words in Roman letters, appearing visible in the substance of the paper, or with any device or distinction peculiar to, and appearing in, the substance of the paper used by the Governor and Company of the Banks of England and Ireland I'espectively for any notes, bills of exchange, or bank post bills of such banks respectivel3^" ° " Bank-note, bank bill of exchange, or bank post bill, blank bank- note," &c. (as before, inserting " blank " before " bank "). 6 24 & 25 Vict. c. 98, s. 15. '' This probably means " any note in the substance of the paper of which there visiljly appear either words or figures expressing the amount in guineas, or figures denoting the amount thereof in pounds sterling." THE CRIMINAL LAW ?A\ or from making, using, or selling 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 that they are not so contrived as to form the groundwork or texture of the paper, or to resemble the waving or curved laying wire lines or bar lines or the water-marks of the paper used by the Bank of England or the Bank of Ireland respectively ; or (f.) ^ who engraves or makes in any manner, upon any plate or other thing, any note purporting to be a -bank-note, or blank bank-note, or any part thereof, or any name, word, or character resembling any subscription to any bill of ex- change or promissory note issued by any company or person mentioned in the note ; or uses any such plate or thing, or any other instrument or device for making or printing any such ^note, or part thereof, or knowingly has in his possession any such plate, thing, or instrument, or device ; or knowingly utters or has in his possession any paper on which is made or printed any ^ blank bank-note, or part of a bank-note, or any word, name, or character resembling any subscription thereto ; or (rf.) ^who engraves or makes upon any material what- It may possibly mean ' ' nothing in this section prevents any person from issuing any note having the amount expressed in guineas, whatever kind of paper he may use for the piirijose, or any note having the amount thereof expressed in numerical figures, denoting its value in pounds sterling, and appearing visible," &c. 1 -24 & 25 Vict. c. 98, s. 16. •I "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 bill of exchange, or bank post bill of the Governor and Company of the Bank of England, oi- of the Governor and Company of the Bank of Ireland, or of any other body corporate, company, or persons carrying on the business of bankers, or to be a blank bank-note,"' &c. (as before, inserting " blank " before " bank "). It is almost impossiljle to be sure whether these sections ai-e quite correctly stated or not, the phrase- ology is quite bewildering. •' " Bank-note, bank bill of exchange, or bank post bill, or blank bank- note," &c. (as before, inserting " blank " before " bank "). ■• Blank bank-note, blank bank bill of exchange, or blank post bill of tlie (jiovernoi' and Company, &c. , repeating the persons named in Note 2, above. •' 24 & 25 Vict. c. 9S, s. 17. 342 A DIGEST OF ever ^ any word, number, figure, device, character, or orna- ment, the impression taken from which resembles any part of a ^ bank-note ; or uses or knowingly has in his custody or possession ^ any material or instrument or device for impressing or making any such impression as aforesaid upon any paper or other material ; or knowingly utters or has in his custody or possession ^ any paper or other material upon which there is any such impression ; or (('.) ^who makes or uses any frame, mould, or instrument for the manufacture of paper with the name or firm of any ^ bank (other than the Bank of England and the Bank of Ireland) appearing visible in the substance of the paper : or knowingly has in his custody or possession any such frame, mould, or instrument ; or makes, uses, sells, exposes to sale, utters, or knowingly has in his custody or possession any such paper ; or by any art or contrivance causes any such name to appear visible in the substance of the paj^er upon which it is printed or written ; or (/) ^who engraves or makes upon any plate or upon any ^ material any bill of exchange, promissory note, under- taking, or order for pajanent of money, or any j^art of any such document in any language, and, whether under seal or not, purporting to be a document of any foreign prince or state, or of any minister or ofiicer in the service of any such prince or state, or of any coi"poration recog- nised by any such prince or state or of any person or com- pany of persons resident out of Her Majesty's dominions ; or uses or has in his possession any plate or material upon ^ "Any plate whatsoever, or any wood, stone, or other material."" 2 See note (3), ante, p. 341. 3 24 & 25 Vict. c. 98, s. 18. ■• "body corporate, companj-, or person carrying on the business of bankers. " '^ 24 & 25 Vict. c. 98, s. 19. Taking a positive impression of an Austrian note on glass by photography is a "making" within this section : B. v. Rivaldi, 1863, L. & C. 330. ^ "Upon any wood, stone, or other material." THE CRIMINAL LAW 343 which any such document, or am' part thereof, is en- graved ; or knowingly utters or has in his custody or possession any paper upon which any part of any such document is made or jDrinted. Article 397. offences relating to exchequer bills and paper used for them, seven years penal servitude, Every one commits felony, and is liable upon conviction thereof to seven years penal servitude, (a.) ^ who, without lawful authority or excuse (the proof whereof lies upon the party accused), makes, causes, or pro- cures to be made, or aids or assists in making, or knowingly has in his possession, (i.) any paper in the substance of which appears any thread or ^ device, or any jDart of any thread or device, peculiar to and appearing in the substance of paper ^ used for * exchequer bills, and intended to imitate the same : (ii.) ^ any frame, mould, or instrument having therein any such ^ device ; (iii.) "any machinery for working any thread into the substance of any paper, or any such thread, such instrument, machinery, or thread being intended to imitate any such device ; (iv.) ^ any plate peculiarly employed for printing exchequer 1 24 & 25 Vict. c. 98, s. 10. 2 " words, letters, figures, marks, lines, threads, or other devices." ^ " Provided, or to be provided or used.' •* " Exchequer bills, bonds, or debentures." •'' 24 & 25 Vict. c. 98, s. 9. "Exchequer Bill" includes "Treasury Bill": 40 Vict. c. 2, s. 10. •> " Device" here has the same meaning as in note (2), except the word " thread." <■ 24 & 25 Vict. c. 98, part of s. 9. The language thus paraphrased is exceedingly clumsj' : " an}- . . . instrument having therein any words, &c., or any machinery for working any threads, &c. , or any such thread, and intendtd fo imitate such words," &c. The words in italics are hardly grammatical, but I suppose they mean what is stated in the text. ** 24 & 25 Vict. c. 98, s. 9. Exchequer bill includes Treasury IjIII throughout this Article, 40 Vict. c. 2, s. 10. :U4 A DIGEST OF bills, or any die or seal peculiarly used for preparing any such plate or for sealing exchequer bills, or any plate, die, or seal intended to imitate any such plate, die, or seal ; or (b.) ^ who causes, or assists in causing, any such device, or any part of any such device as aforesaid, and intended to imitate the same, to appear in the substance of any paper whatever ; or (c.) -who takes, or assists in taking, any impression of any such plate, die, or seal as is mentioned in clause (a.) (IV.) Article 398. the like : three years imprisonment. ^ Every one commits a misdemeanor, and is liable upon con- viction thereof to imprisonment for three years with hard labour, who {a.) purchases or receives or knowingly has in his custody or possession any such plate, die, or seal as is mentioned in clause (a.) (iv.) of the last Article ; or (h.) who purchases or receives or knowingly has in his possession or custody any paper provided by or under the direction of the Commissioners of Inland Revenue or of the Treasury for the purpose of being used as exchequer bills before such paper is duly stamped, signed, and issued for public use. Article 399. " trade mark " and " trade description " defined. ■* " Trade mark means a trade mark registered in the register of trade marks kept under the Patents, Designs, 1 24 & 25 Vict. c. 98, s. 10. ^ Ibid. 3 Ibid. ■* 50 & ol Vict. c. 28, s. 3 (1), and see the same place for definitions of "goods," " person," &c. The provisions of the Merchandise 'Marks Act 1887, as to the application of a false trade description to goods, extend to the application to goods of marks, &c. , reasonably calculated to mislead as to who are the manufacturers or merchants thereof. The same pro- visions, and similar provisions as to the goods themselves, apply to the THE CRIMIXAL LAW 345 and Trade Marks Act 1883, and includes any trade mark which, either with or without registration, is protected by law in any British possession or foreign state to which the provisions of section 103 of the said Act are, under order in Council for the time being, applicable ; " Trade description " means any description, statement, or other indication, direct or indirect, (a) as to the number, quantity, measure, gauge, or weight of any goods, or (h) as to the place or country in which any goods were made or produced, or {(■) as to the mode of manufacturing or pro- ducing any goods, or {d) as to the material of which an}^ goods are composed, or (e) as to any goods being the subject of an existing patent, privilege, or copyright ;' and the use of any figure, word, or mark which, according to the custom of the trade, is commonly taken to be an indication of any of • the above matters, is a trade description within the meaning of this Act. " False trade description " means a trade description which is false in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description, w^hether by way of addition, effacement, or otherwise, where that alteration makes the description false in a material respect, and the fact that a trade description is a trade mark, or part of a trade mark, does not prevent such trade description being a false trade description within the meaning of this Act. application of a false name or initials, as to -which see the Act ; Iliid. s. 3, (2) and (.3), considerably abbreviated. As to when tlie name of a country on a watch-case amoimts to a trade description, see Ibid. s. 7, and as to false declarations in connection therewith, see Iljid. s. 8. If a trade description on 23rd August 1887 was lawfully and generally applied to goods of a particular class, or manufactured bj* a particular method, to indicate the particular class or method of manufacture of such goods, the provisions of the Merchandise Marks Act 1887 with respect to false trade descriptions, as to which see Art. 400, do not apply to such trade description when so applied : but exceptions exist where the trade description includes the name of a place or country ; Iliid. s. 18. 346 A DIGEST OF Article 400. 1 forging trade marks and misapplying trade descrip- TIONS. ^ Every one commits a misdemeanor, and is liable on con- viction thereof on indictment to imprisonment with hard labour for two years, or to a fine, or both, who, ^ (a.) forges ^ any trade mark ; or (b.) falsely applies ^ to goods any trade mark or any mark so nearly resembling a trade mark as to be calculated to deceive ; ^ or ^ These offences are also punishable summarily, as to which see Oke"s .Synopsis, pp. 446-450. 2 50 & 51 Vict. c. 28, s. 2 (3). 3 Ibid. s. 2 (1). * A person forges a trade mark who either («) without the assent of the proprietor of the trade mark makes that trade mark or a mark so nearly i-esembling that trade mark as to be calculated to deceive ; or (b) falsifies any genuine trade mark, whether by alteration, addition, effacement, or otherwise ; and any trade mark or mark so made or falsified is in this Act referred to as a forgetl trade mark. Provided that in any prosecution for forging a trade mark the burden of proving the assent of the proprietor lies on the defendant, 50 & 51 Vict. c. 28, s. 4. It seems that this definition would be unnecessary were it not that it makes it a crime to use a mark without being aware that it is a trade mark. •'' (1) A person is deemed to apply a trade mark or trade description to goods who {a) applies it to the goods themselves ; or (b) applies it to any covering, label, reel, or other thing in or with which the goods are sold or exposed, or had in possession for any purpose of sale, trade, or manu- facture ; or ((■) places, incloses, or annexes any goods which are sold or exposed or had in possession for any purpose of sale, trade, or manufacture in, with, or to any covering, label, reel, or other thing to which a trade mark or trade description has Ijeen applied ; or (d) uses a trade mark or mark or trade description in any manner calculated to. lead to the belief that the goods in connection with wliich it is used are designated or described by that trade mark, or mark, or traile description. (2) See the Act as to the meaning of "covering" and "label." A trade mark, or mark, or trade description is deemed to be applied whether it is woven, impressed, or otherwise worked into or annexed or affixed to the goods, or to any covering, label, reel, or other thing. (3) A person is deemed falsely to applj' to goods a trade mark or mark who without the assent of the proprietor of a trade mai'k applies such trade mark or a mark so nearly resembling it as to be calculated to deceive, but in any prosecution for falsely applying a trade mark or mark to goods the burden of proving the assent of the proprietor lies on the defendant ; Ibid. s. 5. •^ A person charged with committing this offence, or causing it to be committed, miist be discharged if he («) proves that in the ordinary' course of his business he is employed to make instruments for making trade marks, or applying marks or descriptions to goods, that he was THE CRIMINAL LAW 347 (c.) makes any ^ instrument for the purpose of forging, or of being used for forging, a trade mark - ; or {(l.) applies any false trade description to goods ^ ; or (e.) disposes of or has in his possession any ^ instrument for the purpose of forging a trade mark ; or (/.) causes any of the things above in this section mentioned to be done ; unless in any of the above cases he proves that he acted without intent to defraud ; or (2) ^ who sells, or exposes or has in his possession for sale or any purpose of trade or manufacture, any goods or things to which any forged ^ trade mark or false trade description is ''applied, or to which any trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely ^ applied, unless he prove {a.) that, having taken all reasonable precautions against committing an offence against the Merchandise Marks Act 1887, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the trade mark, mark, or trade description, and (b.) that on demand made by or on behalf of the prosecutor he gave all the infoi'mation in his power with respect to the persons from whom he obtained such goods or things ; or {c.) that otherwise he ^ acted innocently. " The person convicted also forfeits to Her Majesty every chattel, article, instrument, or thing by means of, or in relation to, which the offence has been committed. employed by a person in the United Kingdom and was not interested in the sale of the goods ; and [b) took reasonable precautions against com- mitting the offence charged ; and (r) had no reason to suspect the genuineness of the ti'ade mark, &c. ; and (r/) gave to the prosec^itor all the information in his power with respect to the persons on whose behalf the trade mark, &c., was aj^jj^lied ; but he is liable to paj' the prosecutor's costs unless he gave due notice of the above defence ; Ibid. s. 6 (shortened in parts). ^ "die, block, machine, or other instriiment." - See note 6, p. 346. ■'- 50 & 51 Vict. c. 28, s. 2 (2). * See note 4, p. 346. •' See note 5, p. 346. ^ The Act saj's " had acted "' ; it must mean " acted." ' 50 & 51 Vict. c. 28, s. 2 (3). :US A DIGEST OF '^ The Court before whom any person is convicted under this Article may order any forfeited articles to be destroyed or otherwise disposed of as the Court thinks fit. Article 401. accessories abroad. - Every one who, being Avithin the United Kingdom, procures, counsels, aids, abets, or is accessory to the com- mission without the United Kingdom of any act mentioned in Article 400 is guilty as a principal, and may be indicted in the i^lace where he may happen to be. Article 402. •H)FFEXCES relating TO STAMPS. ■* Every one is guilty of felony, and is liable to fourteen years penal servitude, who (a.) prints or makes an impression upon any material with a forged die ; or {h.) fraudulently prints or makes an impression upon any material from a genuine die ; or (c.) fraudulently cuts, tears, or in any way removes from any material any stamp, with intent that any use should be made of such stamp or of any part thereof : or (d.) fraudulentl}' mutilates any stamp, Avith intent that any use should be made of any part of such stamp ; or - (e.) fraudulently fixes or places upon any material or upon any stamp, any stamp or part of a stamp which, whether 1 50 & 51 Vict. c. 28, s. 2 (4). 2 Ibid. s. II. 2 Section 27 of the Stamp Duties Management Act 1891 (54 & 55 Vict. c. 38) enacts that " 'stamp' means as well a stamp impressed by means of a die as an adhesive stamp for denoting any duty or fee " : this must probably be read as confined to stamps issued by the authority of the Commissioners of Inland Revenue : also that ' ' ' forge ' and ' forged ' include counterfeit and counterfeited." See the section for definitions of "material," "die," &c. 4 54 & 55 Vict. c. 38, s. 13 (2)-(7), (9). THE VRIMIXAL LAW 349 fraudulently or not, has been cut, torn, or in any wav removed from any other material, or out of or from any other stamp ; or (/.) fraudulently erases or otherwise either really or apparently removes from any stamped material any name, sum, date, or other matter or thing whatsoever thereon written, with the intent that an}' use should be made of the stamp upon such material ; or (^.) knowingly and without lawful excuse (the proof whereof lies on the j^erson accused) has in his possession any forged die or stamp, or any stamp which has been fraudulently printed or impressed from a genuine die, or anv stamp or part of a stamp which has been fraudulently cut, torn, or otherwise removed from any material, or an}- stamp which has been fraudulently mutilated, or any stamped . material out of which any name, sum, date, or other matter or thing has been fraudulently erased, or otherwise either really or apparently removed ^ ; or (A.) causes, or procures to be done, or knowingly aids, abets, or assists in doing any of such acts. ^Everyone commits felon}-, and is liable to penal servitude for seven years, who (a.) makes or causes or procures to be made, or aids, or assists in making, or knowingly has in his custody or jDosses- sion, any paper in the substance of which appears any 2 devices j)eculiar to, and appearing in the substance of, any paper provided or used by, or under the direction of, the Commissioners, for receiving the impression of any die, or any part of such devices, and intended to imitate and pass for the same ; or (6.) causes or assists in causing any such ^ devices, or an}- part thereof intended to j^ass for the same, to appear in the substance of any paper whatever. ^ Any person appointed to sell and distribute stamps, or l^eing or having been licensed to deal in stamps, found in possession of forged stamps is deemed until the contrary is proved to be guilty of this offence; 54 & 55 Vict. c. 38, s. 18. 2 Ibid. s. 14. 2 "any words, letters, figures, marks, lines, threads, or other devices." 350 A DIGEST OF 1 Every person is guilty of a misdemeanor, and is liable to imprisonment for two years with hard labour, who without lawful authority or excuse (the proof of which lies on the accused) purchases, or receives, or knowingly has in his custody or possession : («.) Any paper manufactured by, or under the direction of, the Commissioners, for the purpose of being used for receiving the impression of any die, before the paper has been duly stamped and issued for public use ; or (6.) any plate, die, dandy-roller, mould, or other implement peculiarly used in the manufacture of any such paper. Article 403. forgery at common law, misdemeanor. - Every one commits a misdemeanor who forges any document by which any other person may be injured, or utters any such document knowing it to be forged with intent to defraud, whether he effects his purpose or not. Illustrations. The forgery or uttering of any of the following documents is a misdemeanor : — "^ An order from a magistrate to a gaoler to discharge a prisoner as upon bail being given. ■^A certificate of character to induce the Trinity House to enable a seaman to act as master. ^ Testimonials whereby the offender olitained an appointment as a police constable. ^ The like with intent to obtain the office of a parish school- master. '^ A certificate that a liberated convict was gaining his living honestly to obtain an allowance. 1 54 & 55 Vict. c. 38, s. 15. 2 R. V. Ward, 1726, East, P. C. 861 ; /'. v. Sharman, 1854, D. & P. 285 (overruling R. v. Boult, 1848, 2 C. & K. 604). 3 R. V. Harris, 1834, Moo. C. C. 393. 4 R. V. Toshacl; 1849, 1 Den. C. C. 492. 5 R. V. Moah, 1858, D. & B. 550. « S. V. Sharman, 1854, D. & P. 285. 7 R. V. Mitchell, 1860, 2 F. & F. 44. THE CRIMINAL LAW 351 CHAPTER XLVI PEESOXA TIOX Article 404. personation to obtain property. Every one commits felony, and is liable upon conviction thereof to penal servitude for life, who falsely and deceit- fully personates (a.) ^ any person, or the heir, executor, or administrator, wife, widow, next of kin, or relation of any person, with intent fraudulently to obtain any land, estate, chattel, money, valu- able security, or property ; (&.) ^ any owner of any share or interest of or in any stock, annuity, or other public fund transferable at the Bank of England or the Bank of Ireland ; (c.) any owner of any share or interest of or in the capital stock of any body corporate, company, or society established by charter or by virtue of an Act of Parliament ; {d?) any owner of any dividend or money payable in respect of any such share or interest as aforesaid ; and who thereby (in the case of clauses (5.), (c), and (f/.)) transfers or endeavours to transfer any share or interest belonging to such owner, or thereby receives or endeavours to receive any money due to any such owner as if such offender were the true and lawful owner. 1 37 & 38 Vict. c. 36, s. I. 2 24 & 25 Vict. c. 98, s. 3. Besides these general enactments there are various special Acts punishing personation in particular cases. See 7 Geo. 4, c. 16, s. 38 and 2 Will. 4, c. 53, s. 49 as to the personation of soldiers, and 28 & 29 Vict. c. 124, s. 8 as to the personation of sailors entitled to pay, &c. ; 26 & 27 Vict. c. 73, s. 14 as to the personation of persons entitled to India stock ; 30 & 31 Vict. c. 131, s. 35 as to the personation of persons interested in joint stock companies ; 33 & 34 Vict. c. 53, s. 4 as to the personation of stock-holders ; 53 & 54 Vict. «. 45, s. 9, ante, Art. 155, as to frauds on the police fund by personation. 352 A DIGEST OF Article 405. acknowledging recognizance, etc., in false name. ^ Every one commits felon}-, and is liable upon conviction thereof to seven 3'ears penal servitude, who without lawful authority or excuse (the proof of which is on the party accused) acknowledges any recognizance or bail, or any cognovit actionem, or judgment, or any deed or other instru- ment before any Court, judge, or other person lawfully authorized in that behalf Article 406. personation in fraud of the admiralty. - Every one commits a misdemeanor, and is liable on con- viction thereof to live years penal servitude, who in order to receive any pay, wages, allotment, prize-money, bounty-money, grant, or other allowance in the nature thereof, half-pay pension, or allowance from' the compassionate fund of the Navy, payable or supposed to be payable by the Admiralty, or any other money so payable or supposed to be payable, or any effects or money in charge or supposed to be in charge of the Admiralty, falsely and deceitfully personates any person entitled or supposed to be entitled to receive the same. Article 407. personation at elections. ^ Every one commits felony, and is liable upon conviction thereof to two years imprisonment and hard labour, who commits the offence of personation or aiding, abetting, 1 24 & 25 Vict. c. 98, s. 3-t. 2 28 & 29 Vict. c. 124 s. 8. This offence is also punishable on sum- mary conviction, see Oke's Magisterial Synopsis, p. 152. ■- 46 & 47 Vict. c. 51, s. 6 ; 35 & 36 Vict. c. 33, s. 24 ; and Schedule 3 of 46 & 47 Vict. c. 51. It seems that hard labour must be inflicted, as. the Act says imprisonment " together with " hard labour. THE CRIMINAL LAW 353 counselling, or procuring that offence at any parliamentary or municipal election. A person is for all purposes of the laws relating to parlia- mentary and municipal elections deemed to be guilty of the offence of personation who, at an election for a county or borough, or at a municipal election, applies for a ballot paper in the name of some other person, whether that name be that of a person living or dead, or of a fictitious person, or who, having voted once at any such election, applies at the same election for a ballot paper in his own name. A A 354 A DIGEST OF CHAPTER XLVII. 1 offences re la ting to the coin 2 Article 408. interpretation of terms. In this chapter the following words and expressions are used in the following senses : — ^ " Current," applied to coin, means 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 dominions, whether within the United Kingdom or without. " Copper," applied to coin, includes bronze or mixed metal and every other kind of coin inferior in value to silver. " Counterfeit coin" means coin not genuine, but resembling, or apparently intended to resemble, or pass for genuine coin ; and includes genuine coin prepared or altered so as to re- semble or pass for coin of a higher denomination. ^ A coin fraudulently filed at the edges so as to remove the milling, and on which a new milling has been added to restore the appearance of the coin, is a counterfeit coin. ^ " Gild " and " silver," as applied to coin, include casing with gold or silver respectively, and washing and colouring by any means whatsoever with any wash or materials capable of producing the appearance of gold or silver respectively. " Utter " includes " tender " and " put off." " Having in possession " includes knowingly and wilfully having («.) in the possession or custody of any other person ; or 1 3 Hist. Cr. Law, 177-180. 2 24 & 25 Vict. c. 99 ; and see 46 & 47 Vict. c. 45, s. 2 (Counterfeit Medals Act) in Article 415. ^ 24 & 25 c. 99, s. 1. The interpretation clause is rather clumsy, but the text will be found to represent it correctly, though as to the word " possession " in an abridged shape. 4 R. V. Hermann, 1879, 4 Q. B. D. 284. THE CRIMINAL LAW 355 (Z>.) in any place for the use or benefit of the possessor or any other person. Article 409. coining and possession of instruments for coining — penal servitude for life. Every one commits felony, and is liable upon conviction thereof to penal servitude for life, (a.) ^ who makes any counterfeit gold or silver current coin ; or (&.) - who gilds or silvers any counterfeit current coin ; or (c.) 2 who gilds or silvers any piece of metal or mixture of metals whatever of a fit size and figure to be coined, with intent that it shall be coined into counterfeit current gold or silver coin ; or (f?.) - who gilds, files, or alters any current silver or copper coin with intent to make it resemble or pass for current gold or silver coin ; or (f.) ^ who buys, sells, receives, pays, or puts off any counterfeit gold or silver cu2Tent coin at a lower rate than it imports or was apparently intended to import, or offers to do any such thing, ^ whether or not such coin was in a fit state to be uttered, and whether or not the counterfeitinsr thereof was finished ; or (/•) ^who imports or receives into the United Kingdom from beyond the seas any counterfeit current coin knowing it to be counterfeit ; or (^.) 6 who makes, mends, begins, or proceeds to make or mend, buys, sells, or has in his custody or possession, (i.) any puncheon, counter-puncheon, matrix, stamp, die, pattern, or mould, in or upon which is made or impressed or which is adapted and intended to make or impress the figure, stamp, or apparent resemblance of both or either of the sides of any current gold or silver coin, or of any coin of any foreign 1 24 & 25 Vict. c. 99, s. 2. 2 ibia. s. 3. 3 Ibid. s. 6. 4 Ibid. s. 30. 5 Ibid. s. 7. G Ibid. s. 24. A A 2 356 A DIGEST OF state, prince, or country, or any part of either side thereof, knowingly ; or (ii.) any edger, edging or other tool, collar, instrument, or engine adapted and intended for the marking of coin round the edges with letters, grainings, or other marks or figures apparently resembling the marks on the edge of such coin as aforesaid, knowing the same to be so adapted and intended ; or (iii.) any press for coinage, or any cutting engine for cut- ting, by force of a screw or any other contrivance, 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 engine or machine to have been, or to be intended to be, used for or in order to counterfeiting any such coin as aforesaid ; or (h.) ^ who knowingly conveys out of any of Her Majesty's mints any puncheon, counter-puncheon, matrix, stamp, die, pattern, mould, edger, edging or other tool, collar, instru- ment, press, or engine used or employed in coining, or any useful part of any of the said things, or any coin, bullion, metal, or mixture of metals. - None of the acts specified in (e.), (/.), {g.), and (A.) is an offence, unless it is done without lawful authority or excuse, to be proved by the party accused. Article 410. clipping penal servitude for fourteen years. 3 Every one commits a felony, and is liable on conviction to fourteen years j^enal servitude, who impairs, diminishes, or lightens any current gold or silver coin with intent that when so dealt with it may pass as current gold or silver coin. 1 24 & 25 Vict. c. 99, s. 25. 2 A orders a die for coining counterfeit half-crowns (see clause (g. ) (i. ) ) from B. B communicates with the Mint, and is permitted by them to finish and deliver the die to A. A receives it. A has the die in his possession without lawful excuse : R. v. Harvey, 1871, 1 C. C. R. 285. 3 24 & 25 Vict. c. 99, s. 4. THE CRIMINAL LAW 357 Article 411. coining copper or foreign money — penal servitude for seven years. Every one commits felony, and is liable to seven years penal servitude, {a.) ^ who counterfeits the Queen's current copper coin ; or {!).) ^ who (without lawful authority or excuse (the proof whereof lies upon him)) knowingly makes or mends, or begins or proceeds to make or mend, or buy or sell, or have in his custody or possession, any instrument, tool, or engine adapted and intended for counterfeiting any of the Queen's current copper coin ; or (c.) 2 who buys, sells, receives, pays, or puts off any coun- .terfeit copper coin at a lower rate or value than the same imports or was apparently intended to import ; or {d.) ^who makes counterfeit gold or silver coin of any foreign prince, state, or country ; * whether or not, as regards (a.), (c), and {d.), such coin was in a fit state to be uttered, and whether or not the counterfeiting was finished ; or (e.) ^who brings or receives into the United Kingdom counterfeit gold or silver coin of any foreign prince, state, or country, knowing the same to be counterfeit, without lawful authority or excuse, to be proved by the party accused ; or (/•) ''who has in his custody or possession any filings or clippings, gold or silver bullion, or gold or silver in dust or solution, obtained by impairing current gold or silver coin, knowing it to have been so obtained. 1 24 & Vict. c. 99, s. 14. 2 ibi^. g. 14. 3 Ibid. s. 18. 4 Ibid. s. 30. 5 Ibid. s. 19. 6 Ibid. s. 5. 358 A DIGEST OF Article 412. coining foreign copper money — penal servitude for seven years. ^ Every one commits a misdemeanor who makes any counterfeit copper coin of any foreign state ; the punishment is, for the first offence, one year's imprisonment without hard labour ; for the second offence, after conviction of the first, seven years penal servitude. Article 413. uttering and possessing with intent to utter. Every one commits a misdemeanor, or in case {d.) a felony, and is liable to a punishment of one year's imprisonment and hard labour in cases {a.) and (&.), two years imprisonment and hard labour in case (c), five years penal servitude in case {d.), and penal servitude for life in case {e.), (a.) " who without lawful authority or excuse, to be proved by him, exports or puts on board any vessel for the purpose of being exported from the United Kingdom any counter- feit current coin whatever, knowing the same to be counter- feit ; or (h.) ^ who utters counterfeit current gold or silver coin, knowing it to be counterfeit ; or (c.) ^ who at the time of such uttering as is specified in clause (6.) has in his custody or possession any other piece of such counterfeit coin, or who on the same day, or on any of the ten days next ensuing, utters any such coun- terfeit coin, knowing the same to be counterfeit ; or (d.) ^ who has in his possession three or more pieces of counterfeit current gold or silver coin, with intent to utter them or any of them ; or 1 24 & 2.-) Vict. s. 99, s. 22. '- Ibid. s. 99, s. 8. 3 Ibid. s. 9. i Ibid. s. 10. •■' Ibid. s. II. THE CRIMINAL LAW 359 (c.) ^who commits any of the above-mentioned offences, after having been previously convicted ^ at any time of any one of them, or of any felony relating to the coin. ^ The offence defined in clause (6.) is complete whether or not the coin was in a fit state to be uttered, and whether or not the counterfeiting thereof was finished. Article 414. uttering base copper or foreign coin. Every one commits a misdemeanor (a.) *who utters any counterfeit current copper coin, knowing it to be counterfeit ; or (/>.) *who has in his possession three or more pieces of such counterfeit coin, knowing the same to be false and with intent to utter any of them ; or (c.) ^ who, with intent to defraud, utters as current gold or silver coin any coin which is not such coin, or any medal or piece of metal or mixed metal resembling in size, figure, and colour the current coin as which it is uttered, but being of less value ; or (^.) ^ who defaces any current coin whatever by stamping thereon any names or words, whether such coin is or is not thereby diminished or lightened ; or (e.) "' who utters any counterfeit gold or silver coin of any foreign prince, state, or country, knowing it to be counter- feit. '^ The offences defined in clauses (a.), (c), and (c.) are 1 24 & 2.5 Vict. c. 99, s. 12. ■^ Such a conviction means the finding of a verdict of guilty, that no judgment follows the verdict is immaterial j R. v. Blahy, 1894, 2 Q. B. 170. 3 24 & 25 Vict. c. 99, s. 30. * Ibid. s. 15. 5 Ibid. s. 13. As to the degree of resemblance necessary to bring a medal within this section, see R. v. Rohert/iou, 1865, L. & C. 604. ^ Ibid. s. 16. Ibid. s. 20. Ibid. s. 30. 360 A DIGEST OF complete, whether or not the coin was in a fit state to be uttered, and whether or not the counterfeiting thereof was finished. The punishment for each of the offences in clauses («.), (h.), (c), and (d.) is one year's imprisonment with hard labour. The punishment for the offence in clause (c.) is, for the first offence, six months imprisonment with hard labour ; ^for a second offence, after a previous conviction therefor, two 3^ears imprisonment and hard labour ; ^ and after two previous convictions the offence is felony, and the offender is liable to penal servitude for life. Article 415. making or selling medals resembling coin. ^ Every one commits a misdemeanor, and is liable on conviction thereof to be imprisoned with hard labour for one year, who without due authority or excuse (the proof whereof lies on the person accused) — makes or has in his possession for sale, or offers for sale, or sells, any medal, cast, coin, or other like thing made wholly or partially of metal or any metallic combination and resembling in size, figure, and colour any of the Queen's current gold or silver coin, or having thereon a device resembling any device on any of the Queen's current gold or silver coin, or being so formed that it can by gilding, silvering, colouring, washing, or other like process, be so dealt with as to resemble any of the Queen's cuiTent gold or silver coin. 1 24& 25 Vict. c. 99, s. 21. ^ 46 & 47 Vict. c. 45, s. 2. As to " current coin," see Art. 408. THE CRIMINAL LAW 361 Article 416. principals and accessories. ^ Every principal in the second degree in and every ac- cessory before the fact to any felony under the Coining Act 1861 (24 & 25 Vict. c. 99) is punishable in the same manner as a jjrincipal in the first clegTee is by the Act punishable. 1 24 & 25 Vict. c. 99, s. 35. 362 A DIGEST OF CHAPTER XLVIII ^MALICIOUS INJURIES TO PBOPERTY Article 417. -burning ships of war, etc. — felony — death. Every one is guilty of felonj^, and must upon conviction thereof be sentenced to death, who either within this realm or in any of the islands, countries, ports, or places thereto belonging, wilfully and maliciously sets on fire, burns, or otherwise destroys; or causes to be set on fire or burnt or otherwise destroyed ; or aids, procures, abets, or assists in the setting on fire or burning or otherwise destroying («.) any of Her Majesty's ships or vessels of war, whether afloat or building or begun to be built in any of Her Majesty's dockyards, or building or repairing by contract in any private yards for the use of Her Majesty ; or (&.) any of Her Majesty's arsenals, magazines, dockyards, rope-yards, victualling offices, or any of the buildings erected therein or belonging thereto ; or (c.) any timber or materials there placed for building, repairing, or fitting out of ships or vessels ; or (d.) any of Her Majesty's military, naval, or victualling 5tores or other ammunition of war ; or (f.) any place or places where any such military, naval, or victualling stores or other ammunition of war is, are, or shall be kept, placed, or deposited. 1 3 Hist. Cr. Law, 188-190. 2 12 Geo. 3, c. 24. The punishment is not altered either by 7 & 8 Geo. 4, c. 28, or 1 Vict. c. 91. The Court, howevei', ma}' order the judgment of death to be recorded : 4 Geo. 4, c. 48. THE CRIMINAL LAW 363 Article 418. offences committed by or in relation to explosive substances. ^ Every one is guilty of felony, and is liable on conviction thereof in case («.) to penal servitude for life, in case (&.) to penal servitude for twenty years, and in case (c.) to penal servitude for fourteen years — (a.) who unlawfully and maliciously causes by any ex- plosive substance an explosion of a nature likely to endanger life or to cause serious injury to property, whether any injury to person or property has been actually caused or not ; (&.) who within or (being a subject of Her Majesty) without Her Majesty's dominions unlawfully and ma- liciously — (i.) does any act with intent to cause by an explosive substance, or conspires to cause by an explosive substance, an explosion in the United Kingdom of a nature likely to endanger life or to cause serious injury to property ; or (ii.) makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in the United Kingdom, or to enable any other person by means thereof to endanger life or cause serious injury to property in the United Kingdom, whether any explosion does or not take place, and whether any injury to person or property has been actually caused or not ; (c.) (i.) who makes or knowingly has in his possession or under his control any explosive substance, under such cir- cumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, unless he can show that he made it or had it in his possession or under his control for a lawful object. In this case the explosive substance is forfeited. 1 4G Vict. c. .3, ss. 2, 3, 4, 5, 6, and 9. 364 A DIGEST OF (ii.) In any proceeding against any person for a crime under this clause, such j)erson and his wife, or husband, as the case may be, may, if such person thinks fit, be called, sworn, examined, and cross-examined as an ordinary witness in the case. Every one is guilty of felony, and is upon conviction thereof liable to the same punishment as if he had been guilty as a principal, who within or (being a subject of Her Majesty) without Her Majesty's dominions, by the supply of or solicitation for money, the providing of premises, the supply of materials, or in any manner whatsoever, procures, counsels, aids, abets, or is accessory to, the commission of any crime under this Article. In this Article the expression " explosive substance " includes any materials for making any explosive substance ; also any apparatus, machine, implement, or materials used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance ; also any part of any such apparatus, machine, or implement. ^ Article 419. arson, etc. — pexal servitude for life. Every one commits felony, and is liable on conviction thereof to penal servitude for life, who unlawfully and maliciously does any of the following acts (that is to say) : — (a.) 2 who ^ sets fire to any * place of divine worship ; ^or to any dwelling-house, any person being therein; 1 24 & 25 Vict. c. 97. 2 Ibid. s. 1, W. 3 As to what constitutes "setting fire," it is not necessary that flame should be seen : i?. v. Stallion, 1834, 1 Moo. 398 ; but it is not sufficient that wood should be scorched black : i?. v. Rimell, 1842, Car. & M. 541. It is sufficient if the wood has been at a red heat : B. v. Parker, 1839, 9 C. & P. 45. I suppose the question is whether the thing burnt has or has not begun to be decomposed by the action of fire. 4 "Church, chapel, meeting-house, or other place of divine worship." 6 24 & 25 Vict. c. 97, s. 2, W. THE CRIMINAL LAW 365 ^ or to any '^ private building, whether in the possession of the offender or of any other person, with intent to injure or defraud any person ; ^ or to any station, engine-house, warehouse, or other building belonging or appertaining to any railway, port, dock, harbour, or canal, or other navigation ; * or to any ^ public building : ^ or to any stack of corn, grain, pulse, tares, hay, straw, haulm, stubble, any cultivated vegetable produce, furze, gorse, heath, fem, turf, peat, coals, charcoal, wood, or bark, or to any steer of wood or bark ; '' or to any mine of coal, cannel coal, anthracite, or other mineral fuel ; ^ or to any ship, whether in a complete or unfinished state ; or (b.) ^ who by the explosion of gunpowder or other ex- plosive substance throws down or damages the whole or any " part of any dwelling-house, any person being therein, or of any building so as to endanger the life of any person ; or (c.) I*' who cuts, breaks, destroys, or damages with in- tent to destroy or render useless any of the ^^ goods or articles mentioned below being in any stage of manufacture, or 1 24 & 25 Vict. 97, s. 3, W. 2 Private building means "house, stable, coach-house, ont-house, ware- house, otHce, shop, mill, malt-house, hop-oast, barn, store-house, granary, hovel, shed," fold, faim building, " building or erection used in farming land, or in carrying on any trade or manufacture, or any branch thereof." Many cases are collected in Fisher"s Digest, 1634-1637, as to the buildings which fall under one or the other of these terms. But they are all nisi prius rulings, and the matter is too minute to be referred to in detail here. 3 24 & 25 Vict. c. 97, s. 4, W. * Ibid. s. 5. ° Public Ijuilding means building other than such as are before men- tioned, " belonging to the Queen or to any county, riding, division, city, borough, poor law union, parish or place, or to any university or college, or hall of any university, or to any inn of court, or devoted or dedicated, to public use or ornament, or erected or maintained by public subscription or contriVjution. " 6 24 & 25 Vict. c. 97, s. 17, W. 7 Ibid. s. 26, W. " Ibid. s. 42, W., and see s. 43 and Xote 2, p. 367, />o.s^ 9 Ibid. s. 9, W. 1' Ibid. s. 14, W. 11 " Any goods or article of silk, woollen, linen, cotton, hair, mohair, or alpaca, or of any or more of those materials mixed with each other or mixed with any other material, or any framewoi'k knitted piece, stocking, 366 A DIGEST OF any ^ tool or machinery employed in manufacturing or prepar- ing such goods, or who by force enters any house, shop, build- ing, or place with intent to commit any such offence ; or (f/.) -who breaks down, cuts down, or otherwise damages or destroys any sea bank, or sea wall, or the bank, dam, or wall of or belonging to any water ^ whereby any land or building shall be, or shall be in danger of being, overflowed or damaged ; or (e.) ^ who ^destroys any ^ work belonging to any port, harbour, dock, or reservoir, or on or belonging to any navi- gable river or canal ; or (/.) "^ who pulls or throws down, or in an}^se destroys any bridge (whether over any stream of water or not) or any viaduct or aqueduct over or under which any highw^ay, railway, or canal passes ; or (^.)^who does any injury with intent and so as thereby to render dangerous or impassable any such bridge, viaduct, or aqueduct, or any highway, railway, or canal passing over or under the same or any part thereof ; or (h.) ^who with intent to obstruct, upset, overthrow, injure, or destroy any engine, tender, carriage, or truck using any railway ; puts, places, casts, or throws ^"^ anything whatever upon or across any railway ; or hose, or lace, being in the loom or frame, or on any machine or engine, or on the rack or tenters, or in any stage, process, or progress of manu- facture . . . " or any warp or shute of any such article, or any framework knitted piece, stocking, hose, or lace. 1 Any "loom, frame, machine, engine, rack, tackle, tool, or implement, wliether fixed or movable, prepared for or employed in carding, spinning, throwuig, weaving, fulling, sliearing, or otherwise manufacturing or pre- paring an}' such goods or articles."' - 24 & 25 Vict. c. 97, s. 30, W. ^ Water means " river, canal, dram, reservoir, pool, or marsh." 4 24 & 25 Vict. c. 97, s. 30, W. ^ Throws, breaks, or cuts down, levels, undermines, or otherwise destroys. ^ Work = " quay, wharf, jetty, lock, sluice, floodgate, weir, tunnel, towing path, drain, watercourse, or other work." " 24 & 25 Vict. c. 97, s. 33, W. 8 Ibid. s. 33, W. ^ Ibid. s. 35, W. The whole section might be expressed thus : " who attempts to obstruct," &c. "^^ " Any wood, stone, or other matter or thing." THE CRIMINAL LAW 367 takes up, removes, or displaces any rail, sleeper, or other thing belonging to any railway ; or turns, moves, or diverts any points or other machinery belonging to any railway ; or makes, shows, hides, or removes any signal or light upon or near to any railway ; or does, or causes to be done, any other matter or thing ; or {i.) ^ who casts away or in anywise destroys any ship or vessel whether complete or in an unfinished state ; or {j.) ^ who casts away or in anywise destroj^s any ship or vessel with intent thereby to prejudice the o\\Tier or part owner of such shijD or vessel or of any goods on board the same, or any insurer of the ship, freight, or goods ; or {h.) ^ who with intent ^ to bring any ship, vessel, or boat into danger, masks, alters, or removes any light or signal, or exhibits any false light or signal ; or " (/.) ^ does anything tending to the immediate loss or de- struction of any ship, vessel, or boat for which no punish- ment is otherwise provided by the 24 &l 25 Vict. c. 97. Article 420. arsox, injuries to ships or cattle, etc. — fourteen years penal servitude. Every one commits felony, and is liable upon conviction thereof to fourteen years penal servitude, who unlawfully and maliciously does any of the following things (that is to say) — (a.) ^ who sets fire to any building other than those men- 1 24 & 25 Vict. c. 97, s. 42, W. - Ibid. s. 43, W. This section and s. 42 are like dividing theft into two offences — theft, and theft with intent to injure the owner of the stolen goods, each offence being punished in the same way. 3 24 & 25 Vict. c. 97, s. 47, W. "* The word " maliciously " is here omitted, though " unlawfuU}- " is retained. The reason, no doubt, is that one particular form of malice, viz., an intent to bring a sliip into danger, is specified. 6 24 & 25 Vict. c. 97, s. 47, W. « Ibid. s. 6, W. 368 A DIGEST OF tioned in ^ Article 419 (a.) (whether finished or unfinished) : ^ or (&.) ^ who sets fire to anything in, against, or under any building under such circumstances that if the building were thereby set fire to the offence would amount to felony ; or (c.) * who sets fire to any crop of hay, grass, corn, grain, pulse, or cultivated vegetable produce, whether standing or cut do^vn, 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 ; or (d.) ^ who attempts by any overt act to set fire to any building or to anything mentioned in clause (b.) of this Article, or to any mine mentioned in Article 419, clause («.); or to set fire to, cast away, or destroy any ship or vessel under such circumstances that if such building, mine, or ship were thereby set fire to, cast away, or destroyed, the offender would be guilty of felony ; or (c.) ^ who places or throws in, into, upon, '' under, against, or near any building, ship, or vessel any gunpowder or other 1 If it wei-e not for the arbitrary and practically unimportant distinction between the punishment for this offence and for the offences defined in Art. 419, clause («. )> the following enactment would include them all : — " Whoever sets fire to any building whatever shall be liable to penal servi- tude for life." This would reduce six ciimbrous sections, filling a page of Chitty's Statutes, to two lines. 2 B. V. Manning, 1871, ICC. R. 338. It is a question for a jury wliat constitutes a building. 3 24 & 25 Vict. c. 97, s. 7. In B. v. Child, 1871, 1 C. C. R. 307, it was said that the legislature probably meant to enact that, if any person sets fire to anything in a house likely to set fire to the house itself, he should be guilty of felony, but that they had failed to say so. In that case A set fire to goods in a house to spite the owner, but with no intention to burn the house, and (as the jury were considered by the Court to have found) not thmking it probable that what he was doing would have that effect, and not being reckless on the subject. My impression is tliat the legislature said what it meant, but that the judge who reserved the case (Blackburn, J.) was not followed by the jury in the directions which he gave. 4 24 & 25 Vict. c. 97, s. 16, W. 5 Ibid. S.S. 8, W., 27, 44, W. 6 Ibid, ss. 10, W., 45, W. 7 The word " under " does not occur in s. 45, which applies to ships and vessels and which repeats s. 10 verbatim, with the exception of the omission of that word and the substitution of " injury is effected " for " damage is caused." The omission of "under" as to vessels dates fi-om before the invention of torpedoes. THE CRIMINAL LAW 369 explosive substance with intent to destroy or damage any such building, ship, or vessel, or any engine, machinery, working tools, fixtures, goods, or chattels, whether or not explosion takes place, and whether or not any damage is caused ; or (/•) ^ who destroys any part of any ship or vessel in dis- tress, wrecked, stranded, or cast on shore, or any goods merchandise, or articles of any kind belonging to such ship or vessel ; or (/7.) ^ who kills, maims, or wounds any cattle ; or (A.) '^ who cuts or otherwise destroys any hopbinds growing on poles in any plantation of hops. Article 421. .threats to burn, etc. — ten years penal servitude. ^ Every one commits felony, and is liable upon conviction thereof to ten years penal servitude, who, knowing the con- tents thereof, sends, delivers, utters, or directly or indirectly causes to be received 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 produce whether in or under any building or not, or any shij) or vessel, or to kill, maim, or wound any cattle. Article 422. malicious mischief — seven years penal servitude. Every one commits felony, and is liable upon conviction to 1 24 & 25 Vict. c. 97, s. 49. - Ibid. s. 40. An injui'y inflicted l>y the hand may be a wound : i?. v. Bullock, 1868, 1 C. C. R. 115. On repealed statutes to the same effect, see R. V. Owens, 1828, 1 Moo. 205, and R. v. ITughes, 1826, 2 C. & P. 420, in which Parke, B. , said setting a dog at an animal whereby it was l)itten was not a maiming or wounding. 3 24 & 25 Vict. c. 97, s. 19, W. * Ibid. s. 50, W. B B 370 A DIGEST OF seven years penal servitude, who does any of the following acts unlawfully and maliciously (that is to say), (a.) ^ who cuts, breaks, destroys, or damages with intent to destroy or render useless any machine or engine, whether fixed or movable, used or intended to be used for ^any agricultural operation, or prepared fur or employed in any manufacture other than those enumerated in note 11 to Article 419 (c), or any tool or implement, whether fixed or movable, prepared for or em23lo3'ed in any such manu- facture ; (&.) ^ or who by any overt act attempts to set fire to any of the stacks or produce mentioned in Article 419, clause (a.), or to anything mentioned in Article 420, clause (c), undei- such circumstances that if the same were set on fire the offender would be guilty of felony ; (c.) ^ or who, with intent thereby to destroy or damage any mine or to hinder ^ [obstruct] or delay the working thereof, causes any water to be conveyed or run into any mine, or into any subterranean passage communicating therewith ; or ^ pulls down, fills up, obstructs, or damages with intent to destroy, obstruct, or render useless any airway, waterway, drain, pit level, or shaft of or belonging to any mine ; or * '^ pulls down or destroys, or damages with intent to de- stroy or render useless, any steam or other engine for sinking, draining, ventilating, or working any mine, or in any^vise assisting ^therein, or any appliance or apparatus in con- nection with any such engine, or any staith, building, or ^ 24 & 25 Vict. c. 97, s. 15, W. Some cases on the application of this section to imperfect machines are collected in Fisher's Digest, pp. 1992-1994. 2 " Sowing, reaping, mowing, thi-eshing, ploughing, or draining, or for performing anj' otlier agricultural operation." 3 24 & 25 Vict. c. 97, s. 18, W. 4 Ibid. s. 28, W. •'' Tliis word refers only to the paragraph marked with a *. " This accumulation of intents is clumsy, but not unmeaning. The expression ' ' Damage with intent to destroy any airway with intent to obstruct a mine" has a meaning slightly narrower than "damaging an airway with intent to obstruct a mine," but not very different from it. ' 24 & 25 Vict. c. 97, s. 29, W. ^ The words "sinking — mine" are here repeated. THE CRIMINAL LAW 371 erection used in conducting the business of any mine, or any bridge, waggon-way, or trunk for conveying minerals from any mine, whether any such ^ thing is completed or un- finished ; or ^ stops, obstructs, or hinders the working of any such engine, apparatus, or appliance ; or (rf.) ^ who wholly or partially cuts through, severs, breaks, unfastens, or damages with intent to destroy or render use- less, any rope, chain, or tackle of whatever material used in any mine, or upon * any way or work connected therewith or employed in working it ; (e.) ^ who cuts off, draws up, or removes 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 other ^ water ; or (/.) '' who, with intent and so as thereby to obstruct and prevent the caiTying on or completing or maintaining the navigation of any navigable river or canal, opens or draws up any flood-gate or sluice, or does any injury or mischief to such river or canal ; or (^.) ^ who cuts through, breaks down, or otherwise destroys the dam, flood-gate, or sluice of any fish-pond, or of any water being private property, or in which there is any private right of fishery, with intent thereby to take or destroy any of the fish therein, or so as thereby to cause the loss or destruc- tion of any of them ; or (7t.) ^ who puts lime or any other noxious material in any ^ The words " bridge — trunk " are here repeated. - The words relating to the intent with which these acts are not to be done follow these words. I think, however, that they are meant to apply to all the words which precede them. If not, the words as to intent at the beginning of the clause do not apply to the paragraph beginning " or pulls down." The sections are very clumsy. 3 24 & 25 Vict. c. 97, s. 29, W. ^ ' ' Any inclined plane, railway, or other way or other work whatsoever in anywise belonging or appertaining to or connected with or employed in any mine, or the working or business thereof." " 24 & 25 Vict. c. 97, s. 31, W. *' " river, canal, drain, aqueduct, marsh, reservoir, pool, port, harbour, dock, quay, wharf, jetty, or lock." 7 24 & 25 Vict. c. 97, .s. 31, W. « Ibid. 3. 32, W. B B 2 372 A DIGEST OF such water [^ or in any salmon river] with intent to destroy any fish then being or afterwards to be put therein ; or (z.) who cuts through, breaks doAVTi, or otherwise destroys the dam or flood-gate of any mill-pond, reservoir, or pool ; or (y.) 2 who damages with intent to destroy or render it useless, any ship or vessel, whether complete or incomplete, by any means other than fire, gunpowder, or other explosive substance ; or {h.) ^who cuts away, casts adrift, removes, alters, defaces, sinks, or destroys any boat, buoy, buoy rope, perch, or mark used or intended for the guidance of seamen for the purpose of navigation, or who does any act with intent to do any of the things aforesaid, or who in any other manner injures or conceals any of the things aforesaid. Article 423. malicious mischief— five years penal servitude. * Every one commits felony, and is liable upon conviction thereof to five years penal servitude, Avho unlawfully and maliciously (a.) cuts, breaks, barks, roots up, or otherwise destroys or damages the whole or any part of any tree, sapling, shrub, or any underwood, if the injury done exceeds the sum of £5, ^ or the sum of £1 if the thing injured grows in any j)ark, pleasure ground, garden, orchard, or avenue, or in any ground adjoining or belonging to any dwelling-house; or 1 These words are added by 36 & 37 Vict. c. 71, s. 13. For definition of " salmon river," see 28 & 29 Vict. c. 121, s. 3, and 24 & 25 Vict. c. 109, s. 4. 2 24 & 25 Vict. c. 97, s. 46, W. 3 Ibid. s. 48, W. 4 24 & 25 Vict. c. 97, ss. 21, W., 20, W. These sections are thus arranged in the Act (20.) : Whoever cuts . . . trees ... in any park, &c. , if tlie damage exceeds £1, is guilty of felony, &c. (21.) Whoever cuts . . . trees . . . not growing in any park, &c., if the damage done exceeds £5, is guilty of felony, &c. The text is only half as long, and has precisely the same meaning. ^ These sums are exclusive of consequential damage. A did injury to the amount of £1 to a hedge which it would cost £4 I4.s. Qd. to replace. This is injury to the amount of £1, not to the amount of £5 14.s". Qd. : R. V. Whiteman, 1854, D. & P. 353 (upon 7 & 8 Geo. 4, c. 30, s. 19). THE CRIMINAL LAW 373 (&) ^ cuts or injures any electric line or work with intent to cut off any supply of electricity. Article 424. making and possessing gunpowder for certain purposes. - Every one commits a misdemeanor, and is liable upon conviction thereof to two years imprisonment and hard labour, who knowingly has in his possession, or makes or manufactures any gunpowder, explosive substance, dangerous or noxious thing, 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 felony mentioned in the 24 & 25 Vict. c. 100, or the 24 & 25 Vict. c. 97. Article 425. SUNDRY malicious INJURIES TO PROPERTY. ^ Every one who unlawfully and maliciously does any of the following acts is liable to the following punishments respectively, that is to say, («.) * who being possessed of any ^ building or part of any building as tenant for a term, at will, or on sufferance, or 1 45 & 46 Vict. c. 56, s. 22. " Electric line" is defined by sect. 32 to mean " a wire or wires conductoi- or other means used for the purpose of conveying, transmitting, or distributing electricity with any casing, coat- ing, covering, tube, pipe, or insulator inclosing, surrounding, or support- ing the same or any part thereof, or any apparatus connected therewith for tlie purpose of conveying, transmitting, or distributing electricity or electric currents." " Works means and includes electric lines, also any buildings, machinery, engines, works, matters, or things of whatever description required to supply electricity and to carry into effect the object of the undertakers under this Act." 2 24 & 25 Vict. c. 100, s. 64, W. ; 24 & 25 Vict. c. 97, s. 54, W. The felonies in question are those specified in this chapter, and in chapters xxiv\-xxix. , both inclusive, and in Articles 79 and 186. "' For the punisliment of similar offences summarily, see Oke's Synopsis, pp. 420-424. Where offences in this Article are punishable after a previous conviction or previous convictions, the first, or the first and second offences are punishaljle summarily. ■* 24 & 25 Vict. c. 97, s. 13. ■'"' "any dwelling-house or other building or part of any dwelling-house or other building." 374 A DIGEST OF held over after the termination of any tenancy, pulls down or demolishes, or begins to pnll down or demolish the same or any part thereof, or pulls down or severs from the freehold any fixture being fixed in or to, or being part of such building, is punishable as for a misdemeanor at common law ; (b.) ^ who cuts, breaks, barks, roots up, or otherwise destroys or damages the whole or part of any tree, sapling, or shrub, or any underwood wheresoever growing, to the amount of one shilling at the least ; after two convictions of any such offence is guilty of misdemeanor and liable to two years imprisonment with hard labour ; (('.) ^ who destroys or damages with intent to destroy any plant, root, fruit, or vegetable production gi'owing in any garden, orchard, nursery ground, hothouse, greenhouse, or conservatory after one conviction of any such offence is guilty of felony and liable to five years penal servitude ; (d.) ^ who throws dowTi, levels, or otherwise destroys in whole or in part any turnpike gate or toll-bar, or ^ fence belonging to any turnpike or toll-bar, so set up or erected to prevent passengers from passing by without payment of any toll directed to be paid by any Act of Parliament, or any house, building, or weighing engine erected for the better collection, ascertainment, or security of any such toll ; is guilty of a misdemeanor ; (c.) ^who cuts, breaks, throws down, destroys, injures, or removes anything whatever^ being part of or used in or about any electric or magnetic telegraph, or in the working thereof, or prevents or obstructs in any manner whatever the sending, conveyance, or delivery of any communication by any such telegraph is guilty of a misdemeanor and liable to imprisonment with hard labour for two years ; 1 24 & 25 Vict. c. 97, s. 22, W. 2 Ibid. s. 23, W. 3 Ibid. s. 34. "any wall, chain, rail, post, bar, or other fence." ^ 24 & 25 Vict. c. 97, s. 37. The committing magistrate may deal summarily with this offence ; see Oke's Synopsis, jj. 422. •^ "any battery, machinery, wire, cable, post, or other matter or thing whatsoever." THE CRIMIXAL LAW 375 (/.) ^ who destroys or damages any book, manuscript, - work of art, or thing kept for the purposes of art, science or literature, or as an object of curiosity in any ^repository open at all times or from time to time for the admission of the public, or to any considerable number of persons, whether by the permission of the proprietor, or by the pay- ment of money ; or any picture, statue, monument, or other memorial of the dead, painted glass, or other ornament or work of art in any ^ place of divine worship or ^ public building, or *" public place, churchyard, or burial ground ; or any statue or monument exposed to public view, or any ornament, railing, or fence surrounding such statue or monu- ment, is guilty of misdemeanor and is liable to imprisonment with hard labour for six months ; {g.) '^ who by any unlawful act, or by any wilful omission or neglect, obstructs or causes to be obstructed any engine or carriage using any railway or aids therein is guilty of a misdemeanor and liable to imprisonment with hard labour for two years ; Qi.) ^ who unlawfully and maliciously commits any damage, injury, or spoil to an amount exceeding £5, to, or upon any real or personal property whatsoever, either of a public or private nature, for which no punishment is otherwise pro- vided in this chapter is guilty of a misdemeanor and liable to imprisonment and hard labour for two years, and if the offence is committed between 9 p.m and 5 A.M. five years penal servitude. 1 24 & 25 Vict. c. 97, s. 39, W. - Work of art = "picture, print, statue, bust, vase, or anj- other article or thing kept for the purposes of art." •' "Museum, gallery, cabinet, library, or other depository." * See the definition of these words in Note IV., p. 364. ■' See the definition of these words in Note V., p. 365, from " Ijelong- ing to the Queen " to " Inn of Court." " Public place = street, square, public garden, or ground. •^ 24 & 25 Vict. c. 97, s. 36. Changing a signal so as to cause a train to go slower than it otherwise would is an obstructing : B. v. Hadjield. 1870, 1 C. C. R. 253 ; so is stretching out the arms as a signal: R. v. Hardy, 1871, 1 C. C. R. 278. A railway not opened for public traffic may be obstructed: R. v. Bradford, 1860, Bell, C. C. 269. Ibid. s. 51. 376 A DIGEST OF CHAPTER XLIX ^OFFEXCES RELATING TO GAME, WILD ANIMALS, AND FISH Article 426. " night " and " game " defined. In this chapter the following words are used in the follow- ing senses : — - " Night " means the interval between the end of the first hour after sunset and the beginning of the last hour before sunrise. ^ " Game " means hares, pheasants, j^artridges, grouse, heath or moor game, black game, and bustards. Article 427. night poaching and assaulting keeper. Every one commits a misdemeanor who does either of the following things and is liable to the following punishments respectively, that is to say, {a.) ^ who by night unlawfully takes or destro3's any game or rabbits in any land, whether open or inclosed, or by night unlawfully enters or is in any land, whether open or inclosed, with any gun, net, engine, or other instrument for the purpose of taking or destroying game after twice so offending is guilty of a misdemeanor and liable to serve seven years penal servitude ; (&.) ^ who assaults or offers any violence with any gun, 1 3 Hist. Cr. Law, 275-282. ^ 9 Geo. 4, c. 09, s. 12 ; 24 & 25 Vict. c. 96, ss. 17, 24. 3 Ibid. s. 13. * Ibid. s. 1 ; see Oke's Sj'iiopsis, p. 322, foi- the summary punishment foi' the first two offences. ^' Ibid. s. 2. THE CRIMINAL LAW 377 cross-bow, fire-arms, bludgeon, stick, club, or any other offensive weapon whatever, towards any ^person authorized to seize and apprehend him for the offence specified in clause (a.) is guilty of a misdemeanor and is liable to seven years penal servitude. Article 428. offences relating to deer, hares, and rabbits. " Every one is guilty of an offence who does any of the following things, and is liable to the following punishments respectively, that is to say, (o.) ^ who unlawfully and wilfully courses, hunts, snares, or carries away, kills, wounds, or attempts to kill or wound any deer kept or being ■ (i.) in the uninclosed part of any forest, chase, or purlieu, after a ^ previous conviction of any offence relating to deer for which a pecuniary penalty is imposed by any Act of Parlia- ment, is guilty of a felony and liable to imprisonment with hard labour for two years ; (ii.) ^in the inclosed part of any forest, chase, or purlieu, or in any inclosed land where deer are usually kept, is guilty of felony and liable to imprisonment with hard labour for two }'ears ; (&.)''who having entered into any forest, chase, or pur- lieu, inclosed or not, or into any inclosed land where deer are usually kej^t, with intent unlawfully to hunt, course, wound, kill, snare, or carry away any deer, unlawfully beats or wounds any j)erson intrusted with the care of the deer, or 1 i.e. "the owner or occupier of such land [i.e. land mentioned in (a) ) or . . . any person having a light or reputed right of free warren or free chase thereon, or . . . the loid of the manor or reputed manor wlierein such land may be situate, and also . . . any gamekeeper or servant of any of the persons herein mentioned, or any persons assisting such gamekeeper or servant," sect. 2. ^ For othei' offences connected with stealing deer and i^unishaljle sum- marily, see Oke's Synopsis, pp. 404-406. •■ 24 & 25 Vict. c. 96, s. 12, W. ■' The first offence is punishal)le sununarily, see Oke's Synopsis, p. 404. ■' 24 & 25 Vict. c. 96, s. 13, \V. •■' Ibid. s. 16, W. 378 A DIGEST OF any of his assistants, in the execution of the powers here- under mentioned ^ is guilty of felony and liable to imprison- ment with hard labour for two years ; (c.) - who by night unlawfully and wilfully takes or kills any hare or rabbit in any warren or ground lawfully used for the breeding or keeping of hares or rabbits, whether the same be inclosed or not, is guilty of a misdemeanor ; (f?.) 2 who unlawfully and wilfully takes or destroys, or attempts to take or destroy any fish, otherwise than by angling in the day-time, in any water running through or being in any land adjoining or belonging to the dwelling- house of any person being the owner of such water, or having a right of fishery therein, is guilty of a misdemeanor. ^ If any person is found committing any ofi^ence under (^.), the owner of the ground, water, or fishery where such offender is found, his servant, or any person authorized by him, may demand from such offender any rod, line, hook, net, or other implement, for taking or destroying fish then in such offender's possession, and, if such offender does not immedi- ately deliver up the same, may seize and take it from him for the use of such owner. Any person angling by day is by such taking or delivery exempted from any further damage or penalty. ^ " Every person intrusted with the care of such deer, and any of his assistants, whether in his presence or not, may demand from every siich offender any gun, fire-arms, snare, or engine in liis jDOSsession, and any dog there brought for hunting, coursing, or killing deer, and in case such offender shall not immediately 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." 2 24 & 25 Vict. c. 96, s. 17 ; this offence when committed by day, and setting snares, &c. , in a warren are punishable siimmarily : see Oke's Synopsis, p. 316. ^ Ibid. s. 24 ; other offences consisting of unlawfully taking fish are punishable summarily ; see Oke"s Synopsis, p. 408. J Ibid. s. 25. THE CRIMINAL LAW 379 CHAPTER L 1 offences connected with trade and breach of contract Article 429. absconding with property in contemplation of bank- RUPTCY. - Every one commits felony, and is liable upon conviction thereof to two years imprisonment and hard labour, who quits England and takes with him, or attempts or makes preparation for quitting England and for taking with him, any part of his property to the amount of £20 or upwards, which ought by law to be divided amongst his creditors,^ having been adjudged a bankrupt, or having had his affairs ■liquidated by arrangement after the presentation of a bank- ruptcy petition [■* by or] against him, or the commencement of his liquidation, or within four months before such presen- tation or commencement, unless the jury is satisfied that he had no intent to defraud. ^Article 430. punishment of fraudulent debtors. Every person adjudged bankrupt, and every person whose affairs are liquidated by arrangement in pursuance of the 1 3 Hist. Cr. Law, 228-233. A few obsolete Statutes such as 28 Geo. 3, c. 55, as to unlawful dealings with stocking-frames are omitted from this chapter. 2 32 & 33 Vict. c. 62, s. 12. ^ In the case of an infant adjudged a bankrupt for trading debts who was convicted under this section, it was held that the conviction must be set aside, as since 37 & 3S Vict. c. 62 the infant could have no creditors capable of being defrauded ; R. v. Wilson, 1879, 5 Q. B. D. 28. ■* 46 & 47 Vict. c. 163 (I). " 32 & 33 Vict. c. 62, s. II. These provisions apply "to any person whether a trader or not in respect to whose estate a receiving order has been made, as if the term ' bankrupt ' in that Act {i.e. 32 & 33 Vict. c. 62) included a person in respect of whose estate a receiving order has been made" ; 46 & 47 Vict. c. 52, s. 163 (2). 380 A DIGEST OF Bankruptcy Act 1869/ commits a misdemeanor, and is liable upon conviction thereof to a punishment of two years im- prisonment and hard labour, (1.) If he does not, to the best of his knowledge and belief, fully and truly discover to the trustee administering his estate for the benefit of his creditors all his property, real and personal, and how, and to whom, and for what considera- tion, and when he disposed of any part thereof, except such jDart as has been disposed of in the ordinary way of his trade (if any), or laid out in the ordinary expense of his family, unless the jury is satisfied that he had no intent to defraud : (2.) If he does not deliver up to such trustee, or as he directs, all such part of his real and jjersonal property as is in his custody or under his control, and which he is required by law to deliver up, unless the jury is satisfied that he had no intent to defraud : (3.) If he does not deliver up to such trustee, or as he directs, all books, documents, papers, and writings in his custody or under his control, relating to his property or affairs, unless the jury is satisfied that he had no intent to defraud : (4.) If after the presentation of a bankruptcy petition [- by or] against him, or the commencement of the ^ liquida- tion, or within four months next before such presentation or commencement, he conceals any part of his ^^roperty to the value of £10 or upwards, or conceals any debt due to or from him, unless the jury is satisfied that he had no intent to defraud : (5.) If after the presentation of a bankiiiptcy petition [^ by or] against him, or the commencement of the ^ liquidation, 1 The Baiikrujatcy Act of 1869 being repealed, the above is to be con- strued " as if leference were made therein to the corresponding provisions" of the Act of 1883, 46 & 47 Vict. c. 52, s. 149 (2). What are the pro- visions of tlie latter Act whicli correspond to liquidation by arrangement under the Act of 1869? It might be argued that they are those referring to compositions and schemes of arrangement (see 53 & 54 Vict. c. 71, s. 3 ; 50 & si Vict. c. 57, &c. ); biit the decision in In Be Burdon, Ex2Mrte Wood, 1888, 57 L. J. Q. B. 570, seems to decide to the contrary effect. 2 46 & 47 Vict. c. 52, s. 163 (i.) See Note 1., siqira. THE CRIMINAL LAW 381 or within four months next before such presentation or commencement, he fraudulently removes any part of his property of the value of £10 or upwards : (6.) If he makes any material omission in any statement relating to his affairs, unless the jury is satisfied that he had no intent to defraud : (7.) If, knowing or believing that a false debt has been proved by any person under the bankruptcy or ^ liquidation, he fail for the period of a month to inform such trustee as aforesaid thereof: (8.) If after the presentation of a bankruptcy petition [- by or] against him, or the commencement of the ^ liqui- dation, he prevents the production of any book, document, paper, or writing affecting or relating to his property or affairs, unless the jury is satisfied that he had no intent to . conceal the state of his affaii's or to defeat the law : (9.) If after the presentation of a bankruptcy petition [^ by or] against him, or the commencement of the ^ liqui- dation, or within four months next before such presentation or commencement, he conceals, destroj^s, mutilates, or falsifies, or is privy to the concealment, destruction, mutilation, or falsification of any book or document affecting or relating to his property or affliirs, unless the jury is satisfied that he had no intention to conceal the state of his affairs or to defeat the law : (10.) If after the presentation of a bankruptcy jDctition [■- by or] against him or commencement of the ^ liquidation, or within four months next before such presentation or commencement, he makes or is privy to the making of any false entry in any book or document affecting or relating to his property or affairs, unless the jury is satisfied that he had no intent to conceal the state of his affairs or to defeat the law. (11.) If after the presentation of a bankruptcy petition [- by or] against him or the commencement of the ^ liqui- dation, or within four months next before such presentation ' See note I. , anlt, p. 380. 2 46 & 47 Vict. c. 52, s. 163 (i.) 382 A DIGEST OF or commencement, he fraudulently parts with, alters, or makes any omission, or is privy to the fraudulently parting with, altering, or making any omission in any document affecting or relating to his property or affairs : (12.) 1 If after the presentation of a bankruptcy petition \j' by or] against him or the commencement of the ^ liqui- dation, or at any meeting of his creditors within four months next before such presentation or commencement, he attempts to account for any part of his property by fictitious losses or exj^enses : (13.) [* If within four months next before the presentation of a bankruptcy petition by or against him, or in case of a receiving order made under section 103 of the Bankruptcy Act 1883, before the date of the order] or the commencement of the 2 liquidation, he, by any false representation or other fraud, has obtained any property on credit, and has not paid for the same : (14.) [^ If within four months next before the presentation of a bankruptcy petition by or against him, or in case of a receiving order made under section 103 of the Bankruptcy Act 1883, before the date of the order] or the commencement of the ^ liquidation, he, being a trader, obtains, under the false pretence of carrying on business and dealing in the ordinary way in his trade, any property on credit, and has not paid for the same, unless the jury is satisfied that he had no intent to defraud : (15.) P If within four months next before the presentation of a bankruptcy petition by or against him, or in case of a receiving order made under section 103 of the Bankruptcy Act 1883, before the date of the order] or the commencement of the ^ liquidation, he, being a trader, pawns, pledges, or dis-' poses of otherwise than in the ordinary way of his trade, any property which he has obtained on credit and has not paid 1 See Ex parte Brett, 1875, 1 Ch. D. 151. 2 46 & 47 Vict. c. 52, s. 163, (i.) 3 See Note I., ante, p. 380. 4 53 & 54 Vict. c. 71, s. 26. •'' 53 & 54 Vict. c. 71, s. 26, and see Ex parte Brett, supra. THE CRIMINAL LAW 383 fur, unless the jury is satisfied that he had no intent to defraud : (16.) If he is guilty of any false representation or other fraud for the purpose of obtaining the consent of his credi- tors or any of them to any agreement with reference to his affairs, or his bankruptcy or ^ liquidation. Article 431. undischarged bankrupt obtaining credit. Where an undischarged bankrupt who has been adjudged bankrupt under the Bankruptcy Act 1883 obtains credit to the extent of £20 or upwards from any person without informing such person that he is an undischarged bankrupt, he commits a misdemeanor to which all the provisions of the last Article apply.^ Article 432. false claim on bankrupt's estate. ^ Every one commits a misdemeanor and is liable upon conviction thereof to one year's imprisonment and hard labour, Who being a creditor in any bankruptcy or ^ liquidation by arrangement or composition with creditors in pursuance of the Bankruptcy Acts 1883 and 1890 wilfully and with intent to defraud makes any false claim, or any proof, declaration, or statement of account which is untrue in any material particular. Article 433. offences by masters and owners of ships. ■* Every master or owner of a ship is guilty of a mis- 1 See Note L, p. 380. " 46 & Vict. c. 52, s. 31. This section applies to cases where credit is in fact obtained though no definite stipulation is made for it : R. v. Petem, 16 Q. B. D. 636. 3 32 & 33 Vict. c. 62, s. 14. "» 57 & 58 Vict. c. 60 s. 680. 384 A DIGEST OF demeanor, and is liable to fine or imprisonment with hard labour for two years, and in (l)the ship is liable to forfeiture vvdio (1) ^ uses or attempts to use for her navigation a cer- tificate of registry not legally granted in respect of the ship ; or (2) ^ is guilty of a wilful defeult which causes an infringe- ment of the collision regulations of the Merchant Shipping Act 1894 ; or (3) ^ is party or privy to the obstruction of the service on the master of any ship of any document under the provisions of the Merchant Shipping Act 1894 relating to the detention of the ship as unsea worthy. Article 434. offences by the masters of british ships. ^ Every master of and in (2) every person belonging to a British ship is guilty of a misdemeanor, and is liable to fine or imprisonment with hard labour for two years, Avho (1) ^ does anything, or permits anything to be done, or carries or permits to be carried any papers or documents, with intent to conceal the British character of the ship from any person entitled by British law to inquire into the same or with intent to assume a foreign character, or with intent to deceive any person so entitled as aforesaid, or is privy to the commission of such an offence ; or (2) ^ wrongfully forces on shore and leaves behind, or otherwise wilfully and wrongfully leaves behind in any place on shore or at sea in or out of Her Majesty's dominions, a seaman or apprentice to the sea service before the comple- tion of the voyage for which he was engaged or before the return of the ship to the United Kingdom ; or 1 57 & 58 Vict. c. 60, s. 16. ■'- Ibid. s. 419. 3 Ibid. s. 696 (2). ^ Ibid. s. 680. 5 Ibid. s. 70. G Ibid. s. 187 THE CRIMINAL LAW 385 (3) ^ discharges a seaman or apprentice to the sea service abroad, or leaves him behind abroad, ashore, or at sea, unless he previously obtains indorsed on the agreement with the crew the sanction, or in the case of leaving behind the certificate, of a superintendent in a British possession, or of a consular officer elsewhere ; or (4) ^ knowingly takes the ship to sea in such an un- seaworthy state that the life of any person is likely to be thereby endangered, unless he j)roves that her going to sea in such an unseaworthy state was under the circumstances reasonable and justifiable. Article 435. neglect of duty ix case of collision. ^ Every master of or j)erson in charge of a vessel is guilty of a misdemeanor, and is liable to fine or imprisonment with hard labour for two years, who in case of collision with another vessel fails, without reasonable cause, (a.) to render to the other vessel, her master, crew, and passengers (if any), such assistance as may be practicable, and may be necessary, to save them from any danger caused by the collision, and to stay by the other vessel until he has ascertained that she has no further need of assistance, and also (&.) to give the master or person in charge of the other vessel the name of his own vessel and of the port to which she belongs, and also the names of the ports from which she comes and to which she is bound, if and in so far as he can do so without danger to his own vessel, crew, and passengers (if any). If he fails to comply with this Article, and no reasonable cause for such failure is shown, the collision, in the absence of proof to the contrary, is deemed to have been caused by his wrongful, act, neglect, or default. 1 57 & 58 Vict. c. 60, s. 188. 2 Ibid. 457 (2). ^ Ibid. ss. 422, 680. C C 386 A DIGEST OF Article 436. offences by pilots. 1 Ever}^ pilot is guilty of a misdemeanor, and is liable to fine or imj)risonment with hard labour for two ^^ears, who when in charge of a shijj by wilful breach of duty, or by neglect of duty, or by reason of drunkenness, (a.) does any act tending to the immediate loss, destruction, or serious damage of the ship, or tending immediately to endanger the life or limb of any person on board the ship ; or (h.) refuses or omits to do any lawful act proper and requisite to be done by him for preserving the ship from loss, destruc- tion, or serious damage, or for preserving any person belong- ing to or on board the ship from danger to life and limb. Article 437. sending unseaworthy ships to sea. ^ Every person is guilt}' of a misdemeanor, and is liable to fine or imprisonment with hard labour for two years, who (1.) '^ sends, or attemjDts to send, or is party to sending, or attempting to send a British ship to sea in such an unsea- worthy state that the life of any person is likely to be thereby endangered, unless he proves either that he used all reasonable means to insure her being sent to sea in a seaworthy state, or that her going to sea in such an unseaworthy state was under the circumstances reasonable and justifiable. 1 57 & 58 Vict. c. 60, ss. 607, 680. 2 Ibid. s. 680. 3 Ibid. s. 457 (1). THE CRIMINAL LAW 387 Article 438.^ forging false declarations, etc., under the merchant shipping act. The following persons are guilty of felony, and in (2) liable to penal servitude for seven years, that is to say — (1.) - every one who forges or fraudulently alters, or assists in forging or fraudulently altering, or procures to be forged or fraudulently altered, any register book, builder's or sur- veyor's certificate, certificate of registry, declaration, bill of sale, instrument of mortgage or certificate of mortgage or sale under Part I. of the Merchant Shipping Act 1894, or any entry or indorsement required by the said Part to be made in or on any of those documents ; or . (2.) ^forges the seal, stamp, or signature of any docu- ment declared by the Merchant Shipping Act 1894 to be admissible in evidence, or knowingly tenders in evidence any such document with a false or counterfeit seal, stamp, or signature thereto. ^ Any person is liable to five years penal servitude who for the purpose of obtaining for himself or another any property of a deceased seaman or apprentice to the sea service, forges, or makes use of when forged, any document purporting to show a right thereto, or knowingly gives any false evidence, or makes any false representation or assists in so giving or making such evidence or representation. ■* The following persons are guilty of a misdemeanor, and are liable to fine or imprisonment with hard labour (except as to hard labour in (6)) for two years, that is to say, any person who, (1.) ^ in the case of any declaration made in the presence of, or produced to a registrar under. Part I. of the Merchant 1 The contents of this Article are set out in a very much abbreviated form. The sections constituting the various offences are unfortunate!}' ahnost all in a different form. 2 57 & 58 Vict. c. 60 s. 66. 3 Ibid. s. 180. 4 Ibid. s. 680. « Ibid. s. 67. C C 2 388 A DIGEST OF Shipping Act 1894, wilfully makes any false statement con- cerning the title to or ownership of or the interest existing in any shij) or share thereof; or knowingly makes use of any declaration or document containing any such false statement, or '^ wilfully makes a false declaration as to the qualification of himself or any other person or corporation to own any British ship or share therein ; or (2.) 2 forges, or makes a false representation to procure, or fraudulently uses a forged or suspended, or fraudulently lends any, certificate of competency ; or (3.) ^ fraudulently alters, makes any false entry in, or delivers a false copy of any agreement Avith a ship's crew, or assists in so doing ; or (4) * forges or procures to be forged or presents when forged any document, or knowingly gives any false evidence or makes any false representation, in support of an application made for the wages of a seaman received into Her Majesty's service ; or (5.) ^ knowingly and wilfully makes a false or fraudulent declaration of survey or jDassenger steamer's certificate ; or forges any such declaration or certificate ; or (6.) ^ forges, or j^uts off when forged, any document, or knowingly gives or makes any false evidence or representation, under Part IX. of the Merchant Shipping Act 1894 relating to salvage ; or (7.) ^ forges the seal or distinguishing mark of the Board of Trade on, or fraudulently alters, any form issued by the Board of Trade under the said Act. ^ Any officer to whose custody an original document ^ In this case the ship or share is liable to foifeitiire to the extent of the declarant's interest, unless it is proved that the declaration was made without the authoiity of the person or corporation on whose behalf it was made. 2 57 & 58 Vict. c. 60, s. 104. 3 Ibid. s. 121. 4 Ibid. s. 197. 5 Ibid. s. 282. " Ibid. 564. This offence is not like the others made punishable by reference to sect. 680, but the punishment is the same. "! Ibid. s. 722. 8 Ibid. s. 695 (3). THE CRIMINAL LAW 389 declared to be admissible in evidence by the Merchant Shipping Act 1894 is committed is guilty of a misdemeanor, and is liable to eighteen months imprisonment, who -vnlfully and falsely certifies any document to be a true coj^y thereof or extract therefrom. Article 439. various offences under the merchant shipping act 1894. ^ Every superintendent or officer granting or issuing a seaman's order with a fraudulent intent is guilty of felony, and liable to five years penal servitude. "" Every person appointed to any office or service by or under a local marine board is a clerk or servant within the meaning of sect. 68 of the Larceny Act (see Art. 385, ante), and is guilty of embezzlement within the meaning of the said section, who («.) fraudulently applies or disposes of any chattel, money, or valuable security received by him (whilst employed in such office or service) for or on account of any local marine board, or for or on account of any other public board or department for his o^\ti use, or any use or purpose other than that for which the same was paid, intrusted to, or received by him, or (5.) fraudulently withholds, retains, or keeps back the same or any part thereof, contrary to any lawful directions or instructions which he is required to obey in relation to his office or service as aforesaid. ^ Every person is guilty of a misdemeanor, and to fine or imprisonment with hard labour for two years, who (1.) ^ wilfully destroys or mutilates or renders illegible any entry in an official log book, or wilfully makes or procures to be made or assists in making a false or fraudulent entry in or omission from an official log book ; or 1 57 & 58 Vict. c. 60, s. 147. 2 Ibid. s. 248. 3 Ibid. s. 680. ■1 Ibid. s. 241 (3). 390 A DIGEST OF ^receives any money or valuable consideration from the person to whom an apprentice in the sea-fishing service is bound, or to whom a sea-fishing boy is bound by any agree- ment, or from any one on that person's behalf, or from the apprentice or boy or any one on the apprentice or boy's behalf, in consideration of the boy being so bound ; or makes or causes any such payment to be made. 2 Every one is guilty of felony, and is liable to penal servi- tude for five years, who takes into any foreign port any vessel, stranded, derelict or otherwise in distress, found on or near the coasts of the United Kingdom, or any tidal water within the limits of the United Kingdom, or any part of the cargo or apparel thereof, or anything belonging thereto, or any wreck within those limits, and there sells the same. ^ Every person is guilty of a common nuisance (see ante, Art. 197) on whom a notice under section 667 of the Merchant Shipping Act 1894 as to the exhibition of false lights is served, and who does not comply with the directions contained therein. Article 440. conspiracies in restraint of trade. * A conspiracy in restraint of trade is an agreement between two or more persons to do or procure to be done any unlaw- ful act in restraint of trade. Illustration. ^ The defendants, a body of shipowners, agreed that if persons in a certain trade would deal exclusively with them, such persons should have certain advantages at their hands ; and that if they dealt with any other shipowner, to however small an extent, they should lose all the advantages which otherwise they would derive from dealing with the defendants. This was not a 1 57 & 58 Vict. c. 60, s. 398. 2 Ibid. s. 535. 3 Ibid. s. 667. This offence is also punishable summarily. * 3 Hist. Cr. Law, 202-227. ° Mogul Steamshiji. Comjmny v. McGregor, 21 Q. B. D. 544 ; 23 Q. B. D. 598 ; 1892, App. Cas. 25. The law of conspiracy was much discussed in this case. THE CRIMINAL LAW 391 conspiracy in restraint of trade, because the defendants used no violence, threats, fraud, or coercion, and had no intention of injuring the plaintiff's trade except in so far as such injury was incidental to the improvement of their own. Article 441. what acts done in restraint of trade are not unlawful. ^ The i^urposes of a trade union are not, by reason merely that they are in restraint of trade, unlawful within the meaning of Article 440. ^ No act in contemplation or furtherance of a trade dispute between employers and workmen is unlawful within the meaning of Article 440, unless a person doing it would be punishable for it on indictment, or liable to be imprisoned .(either absolutely or at the discretion of the Court as an alternative for some other jDunishment) on summary con- viction. Article 442. conspiracies in restraint of trade, misdemeanors. ^ Every conspiracy in restraint of trade is a misdemeanor, but no person convicted of a conspiracy to do, or procure to be done, in restraint of trade an act j^unishable only on summary conviction can be sentenced to imprisonment for more than three months, or such longer time, if any, as may have been prescribed by the statute for the punishment of the said act when committed by one person. Article 443. CRIMINAL breaches OF CONTRACT OF SERVICE — INTIMIDATION AND PICKETING. * Every person commits a misdemeanor, and is liable upon 1 34 & 35 Vict. c. 31, s. 2. ^ 38 & 39 Vict. c. 86, s. 3. The words of tlie earlier part of the section are "punishable as a crime." "Crime" is defined at the end of the section as in the text. ■^ Ibid, last paragraph. •* Ibid. s. o. 392 A DIGEtiT OF conviction thereof to be fined £20 or to imprisonment for three months with hard labour, {a.) ^ who wilfully and maliciously breaks a contract of service or of hiring, knowing or having reasonable cause to believe that the probable consequence of his so doing, either alone or in combination with others, will be to endanger human life, or cause serious bodily injury, or to expose valuable propert}', whether real or personal, to destruction or serious injury; or (h.) - who being employed by a munici23al authority, or by any company or contractor upon whom is imposed by Act of Parliament the duty, or who have otherwise assumed the duty of supplying any city, borough, to%vn, or place, or any part thereof, with gas or Avater, wilfully and maliciously breaks a contract of service with that authority or comjDany or contractor, knowing, or having reasonable cause to believe, that the probable consequences of his so doing, alone or in combination with others, will be to deprive the inhabitants of that city, borough, town, place or part, wholly or to a great extent of their supply of gas or water ; or (c.) ^ who being a master legally liable to provide for his servant or apprentice necessary food, clothing, medical aid, or lodging, wilfully and without lawful excuse neglects to provide the same, whereby the health of the servant or apprentice is or is likely to be seriously or permanently injured; or {d.) ^ who with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing wrongfull}* and without legal authority, (i.) uses violence to or ^ intimidates such other person or his wife or children, or injures his property ; or 1 38 & 39 Vict. c. 86, s. 5. 2 Ibid. s. 4. 3 Ibid. s. 6. 4 Ibid. s. 7. ■^ The meaning of the word intimidates in this section has been much discussed, but not authoritatively defined. 34 & 35 Vict. c. 32, s. 1, subs. (2) limited the intimidation contemplated by that sub-section to '• sucli intimidation as would justify a magistrate in binding over the THE CRIMINAL LAW 393 (ii.) persistently follows such other person about from place to place ; or (iii.) hides any tools, clothes, or other property owned or used by such other person, or deprives him of or hinders him in the use thereof; or (iv.) watches or besets the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place ; or (v.) follows such other person with two or more other persons in a disorderly manner in or through any street or road. Attending at or near the house or place where a j)erson resides, or works, or carries on business, or happens to be, or the approach to such house or place in order merel}^ to obtain or communicate information is not a watching or •besetting within (iv.) ^ Cases under this Article may be determined by a Court of summary jurisdiction, or if the accused objects to being tried for such offence by such a Court, the Court of summar}- jurisdiction [must^] deal with the case in all respects as if the offender were charged Avith an indictable offence, and the offence may be prosecuted on indictment accordingly. intiinidator to keep the peace — in other words, to such intimidation as implies a threat of personal violence" {Gib-son v. Lawsou, 1891, 2 Q. B. at p. 559), but this Act is repealed by 38 & 39 Vict. c. 86, which contains no such express limitation. It was held by Mr. Justice Cave in the unreported case of B. v. McKeevit, tried at the Liverpool Assizes, December 1891, though it has never been more authoritatively decided, that such a limitation of the meaning of the word must be the implicit intention of the later Act. In Curraii v. Trehaven (1891, 2 Q. B., at p. 560), and the cases decided at the same time, it was held in substance that a declaration bj' officials of a trade-union that if their wishes were not complied with they would call out the union workmen, followed hy such calling out, was not intimidation of the persons whose action it was intended to influence. See R. v. Driiitf, 1867, 10 Cox, C. C. 592, and Connor v. Kbut (with which are reported Gihsonx. Laicson, and Curran v. Trehaven), 1891, 2 Q. B. 545. 1 38 & 39 Vict. c. 86, s. 9. ^ " may," but apparently it means " must." 394 A DIGEST OF Article 444. third offences against the truck acts. ^ Any j)erson is guilty of a misdemeanor, and is liable to a fine not exceeding £100, who being an employer of any 2 workman, by himself or by the agency of any other person or persons, directly or indirectly enters into any contract, or makes any payment declared illegal by the Truck Acts, after having been twice convicted of the same offence. 1 1 & 2 Will. 4, c. 37, s. 9. A complete account of the offences referred to in this Article will be found in Oke's Magisterial Synopsis at pp. 424-429 ; as third offences are very rare, it has not been thought worth while to set them out further above. The Truck Amendment Act 1887, 50 & 51 Vict. c. 46, is by sect. 1 to be read as one with the Truck Act 1831. Third offences are now punishable summarily as well as on indictment, 50 & 51 Vict. c. 46, ss. 11, 13. 2 The Act of 1831 originally applied only to certain artificers as therein defined ; it extends to all workmen as defined in tlie Employers and Workmen's Act 1875 ; see Oke's Synopsis, p. 971 ; 50 & 51 Vict. c. 46, ss. 2 and 1. THE CRIMINAL LAW 395 APPENDIX OF NOTES NOTE I. (to Article 31.) Hardly any legal doctrine is less satisfactory than the one embodied in this Article. The rule has been too long settled to be disputed ; but on examining the authorities in their historical order, it appears to me to have originated, like some other doctrines, in the anxiety of judges to devise means by which the excessive severity of the old criminal law might be evaded. The doctrine as it now stands is uncertain in its extent and irrational as far as it goes. It is, besides, rendered nearly un- meaning by the rule that the presumption is liable to be rebutted Ijy circumstances. The first authority on the subject is Bracton, in whose time the more recent doctrine appears to have been unknown. He says : — " Uxor vero furi desponsata, non tenebitur ex furto viri, quia virum accusare non debet nee detegere furtum suum nee feloniam, cum ipsa sui potestatem non habeat, sed vir. Consentire tamen non debet felonise viri sui nee coadjutrix esse, sed nequitiam et feloniam viri impedire debet quantum potest. In certis vero casibus de furto tenebitur, si furtum inveniatur sub clavibus uxoris, quas quidem claves habere debet uxor sub custodia et cura sua. Claves videlicet dispensse sufe, archse suse, et scrinii sui : et si aliquando furtum sub clavibus istis inveniatur, uxor cum viro culpabilis erit. Sed quid si res furtiva in manu uxoris inveniatur, numquid tenebitur vir 1 Non ut videtur, nisi ei expresse consenserit, vel cum rem ei warrantizaverit cum ipsum vocaverit ad warrantum, et tunc consensisse prtesumitur nisi expresse dissentiat, vel nisi de eo prpesumatur quod fidelis sit eo quod societatem talis uxoris devitavit in quantum potuit. Item quid erit si uxor cum viro conjuncta fuerit, vel confessaquod viro 396 A DIGEST OF suo consilium preestiterit et auxilium, numquid tenebuntui* ambo ? Imo ut videtur, quia vir potest teneri pei' se cum sit malus, et uxor poterit esse bona et fidelis et liberari. Item uxor mala per se et vir fidelis. Cum ergo uterque possit esse malus per se et alter eorum bonus, ita poterit uterque eorum, simul et conjunctim, esse malus sicut bonus. Solutio. Non igitur erit in omni casu uxor deliberanda propter consilium, auxilium, et consensum, desicut sunt participes in crimine, ita erunt participes in poena. Et licet obedire debeat viro, in atrocioribus tamen suis latrociniis ei non erit obediendum. Poterit quidem vir ligare et tenere, et uxor sponte et non coacta occidere, et ita ut videtur tenetur de- maleficio uterque. De concubina vero, vel familia domus, non erit sicut de uxore. Ipse vero accusare tenentur, vel a servitio recedere alioquin videntur consentire." Bracton, Lib. 3, Tract 2, cap. 32, sect. 10, Rolls series, vol. ii. p. 518. The effect of this passage is that the wife is not bound ta accuse her husband, nor is she to be regarded as accessory after the fact to a theft committed by him merely because she receives the stolen goods, though she may be so regarded if she so conducts herself as to show actual consent to the theft. The passage does not contain a word about her right to steal with impunity in his presence. The next authority is Assise 27 Edw. 3, cap. 40, vol. iv. p. 137 of Brooks' edition, 1679, which is in these words : — " Un feme fuit arraine de c q el aver felon emble ii s de pain ; q disq. elle fist per commandeiTit de celuy qui fuit son baron a eel temps. Et les justices ne voilent prendre pur pite a sa conis, mes- pristeront I'enquest ; per q fut trove que el' le fit per cohersion de son baron maugre le soe per que el' ala quite, et dit fui q p command de baron sans auter cohersion, ne serra nul manner de felori," &c. In this case the jury seem to have found actual coercion by the husband. The dictum that the husband's command, he being absent, relieves the wife from guilt is clearly wrong ac- cording to more modern authorities. In Fitzherbert's Abridg- ment (a.d. 1565), Corone, 199, the case in the Book of Assizes is. quoted in an abridged form : and Staundforde (a.d. 1583), c. 19, quotes Fitzherbert, but adds a qucere to the dictum appended to the case, on which Fitzherbert relies. He does not, however, quote the case itself. Coke, 3rd Inst. ch. xlvii. p. 108, says: — "A feme covert TJIE CRIMINAL LAW 397 committeth not larceny if she does it by the coertion of her husband ; but a feme covert may commit larceny if she doth it without the coertion of her husband." He quotes 27 Ass. 40, and Staundforde, but does not say that the bare presence of the husband is to be regarded as coercion, and does not notice the dictum as to the husband's command. Bacon (Law Tracts, p. 57, ed. 1737), upon the maxim " Necessitas inducit privilegium quoad jura privata," observes, " the second necessity is of obedience, and therefore when l:)aron and feme commit a felony, the feme can neither be principal nor accessory, because the law intends her to have no will in regard of the subjection and obedience she owes to her husljand." For this he quotes the passage in Staundforde already referred to, and Fitzherbert (Corone, 160), which states, as the effect of a case, in 2 Edw. 3, that eight men and a woman l)eing convicted of felony, and the woman declaring that she was the wife of one of the men, and the jury saying they knew nothing of it, the judge inquired of the bishop. Lord Bacon's proposition thus goes infinitely beyond his authorities. Dalton (Justice, ch. clvii.) says: — "A feme covert doth steal goods by the compulsion or constraint of her husband. This is no felony in her." And he quotes Fitzherbert and the case quoted by Fitzherbert. He also quotes Bracton in a very unin- telligent and fragmental way, and says that in murder and treason the husband's compulsion does not excuse the wife. As to murder, his authority is Marrow,^ an author of the time of Henry VII. As to treason, he quotes Fitzherbert (Cor. 130). This passage refers to the case of a woman sentenced to be burnt for coining, respited on the ground of pregnancy, delivered of her child, and becoming pregnant again before she was burnt. The case does not say that she was married at all, and rather implies that she was not. Hale (1 P. C. 45) says : — " If she (the wife) commit larceny by the coercion of the husband, she is not guilty (27 Ass. 40), and according to some, if it be by the command of her husband, which seems to be law if the husband be present, but not if her husband be absent at the time and place of the felony committed. 1 Lambard's "Preface" begins, " To write of the office and duties of a justice of the peace, after H. Marrow," is like "bringing owls to Athens." In Wilks v. Bridyer, 1819, 2 B. & Aid. 282, Marrow is said to have been a Master in Chancery. 398 A DIGEST OF " But this command or coercion of the husband doth not excuse in case of treason nor of murdex% in regard of the heinous- ness of those crimes." He quotes for this the passage in Dalton given above and the cases of Arden and Somerville as to treason, and Lady Somerset as to murder. He goes on : "If the husband and wife together commit larceny or burglary, by the opinion of Bracton (lib. iii. ch. xxxii. s. 10) both are guilty " (Bracton says nothing of the sort), " and so it hath been practised by some judges. Vide Dalt., uhi supra, ch. civ." (Dalton does not say so). " And possibly, in strictness of law, unless the actual coercion of the husband appear, she may be guilt}^ in such a case ; for it may many times fall out that the husband doth commit larceny by the instigation, though he cannot in law do it by the coercion, of his wife ; but the latter practice hath obtained, that if the husband and wife commit burglary and larceny together, the wife shall be acquitted, and the husband only convicted ; and with this agrees the old book (2 E. 3, Corone, 160). And this being the modern practice, and in favorem vitce, is fittest to be followed : and the rather because otherwise for the same felony the husband may be saved by the benefit of his clergy, and the wife hanged, where the case is within clergy, though I confess this reason is but of small value ; for in manslaughter committed jointly by husband and wife the husband may have his clergy, and yet the wife is not on that account to be privileged by her coverture. " And accordingly in the modern practice where the husband and wife, by the name of his wife, have been indicted for a larceny or burglary jointly, and have pleaded to the indictment, and the wife convicted, and the husband acquitted, merciful judges have used to reprieve the wife before judgment, because they have thought, or at least doubted, that the indictment was void against the wife, she appearing by the indictment to be a wife, and yet charged with felony jointly with her husband. " But this is not agreeable to law, for the indictment stands good against the wife, inasmuch as every indictment is as well several as joint." This extract probably gives the key to the confusion of the law upon this subject. It was thought hard that a woman should be hanged for a theft for which her husband had his clergy, and accordingly a loophole was devised for married THE CRIMINAL LAW 399 women, similar, as far as theft was concerned, to clergy for men. Hale's remark as to manslaughter shows how incomplete and unsystematic the arrangement was. Hawkins (1 — 4) says : — " If she ... be guilty of treason, murder, or robbery, in company with, or by the coercion of, her husband, she is punishable as much as if she were sole." And Blackstone excepts " treason and mala in se, as murder and the like." The recent cases on the subject are referred to in the Illus- trations to the Article and in the footnote. Surely, as matters now stand, and have stood for a great length of time, married women ought, as regards the commission of crimes, to be on exactly the same footing as other people. But owing partly to the harshness of the law in ancient times, and partly to its uncertain and fragmentary condition, it is disfigured by a rule which is tolerable only because it is practically evaded on almost every occasion where it ought to be applied. NOTE 11. (to Article 48.) In R. V. Welham, 1845, 1 Cox, C. C. 192, Mr. Justice Patteson, after consulting Baron Parke, said, " We are both clearly of opinion that there can be no inciting to commit a felony unless the party incited knows that the act in which he is to engage is a felony." Upon this Mr. Greaves (1 Russ. Cr. 189, note (/ ) ) asks, " How can the guilt of the inciter depend upon the state of mind of the incited 1 The inciting and the intention of the inciter constitute the offence." As I understand the facts of R. v. Welham, Welham incited Hood to carry off corn which Hood supposed Welham to have a right to carry off. If this were so, Welham's offence, if any, was an attempt to commit a felony by an innocent agent, and not an incitement to commit a felony, which view would justify the language of the two eminent judges. A. tells B. to put into C.'s tea something which B. supposed to be powdered sugar, but which is really arsenic. This is an attempt by A. to murder C, but it is not an inciting B. to commit murder. This view is strengthened by Williams^ Case, 1844, 1 Den. C. C. 39, in which it was held that to instigate a person to poison another under such circumstances that the insti<>-ator would 400 A DIGEST OF have been an accessory before the fact if the poison had been given, was not an attempt to administer poison under 7 Will. 4 and 5 Vict. c. 85, s. 1, with which cf. 24 and 25 Vict. c. 100, s. 11. NOTE III. (to Article 156 ; Maintenance.) It is not Avithout hesitation that I have inserted these vague and practically obsolete definitions in this book. As, however, maintenance and champerty hold a place in all the text books, I have not thought it proper to omit all notice of them. A full account of the crimes themselves, of the vagueness of the manner in which they are defined, and of the reasons why they have so long since become obsolete, may be seen in the Fifth Report of the Criminal Law Commissioners, pp. 34-9. The Com- missioners observe in conclusion : — " Prosecutions for oifences comprehended under the general head of maintenance are so rare that their very rarity has been a protection against the disapproval of judges, and those alterations which a frequent recurrence of doubt and vexation would probably have occa- sioned. . . . But although no cases have occurred Avhere the doctrine of maintenance has been discussed in the Courts, it is by no means true that this law has not been used as the means of great vexation. Instances of this have fallen within our own professional observation in the case of prosecutions commenced, although not persevered in." The Commissioners recommend that all these ofiences should be abolished. The definition of barratry in particular is so vague as to be quite absurd ; and the statutory provision as to attorneys practising after a conviction would be utterly intolerable if it had not been long forgotten. I should suppose that there is no other enact- ment in the whole statute book which authorises any judge to sentence a man to seven years' penal servitude after a summary inquiry conducted by himself in his own way. These offences, as sufficiently appears from the preambles of the various statutes relating to them, are relics of an age when courts of justice were liable to intimidation by the rich and powerful and their dependants. As long as the verdict of a jury was, more or less, in the nature of a sworn report of local opinion, made by witnesses officially appointed to make such THE CRIMINAL LAW 401 reports, intimidation must have been possible, and, in many cases, easy. Many statutes on this subject ■■■ are still in force, and the law relating to it is to be found in 1 Hawkins, 454. The exceptions to the general rule, that a man is not to assist another in a quarrel in which the maintainer has no interest, are so numerous, and, in some cases, so vague {e.g. a man may assist his neighbour from charity), that no less vague pro- position than the one in the text would faithfully represent the law. NOTE IV. (to Articles 174, 175.) These offences have, at least in modern times, been made the subject of few, if of any, prosecutions. The excessive severity of the judgment for misprision of treason no doubt escaped notice when for-feitures for felony were abolished. The 33 & 34 Vict. c. 23 takes no notice of misprisions. The definition of misprision of felony is extremely vague. I have found no authority as to what amounts to a concealment. The obligation to discover treason to a judge or magistrate is mentioned by Hale. In early times, when the offence was com- moner and more important, the obligation was very clearly set forth. " Si sit aliquis qui alium noverit inde " {i.e. of treason) " esse culpabilem, vel in aliquo criminosum, statim et sine intervallo aliquo accedere debet ad ipsum regem si possit, vel mittere si venire non possit ad aliquem regi familiarem et omnia ei manifestare per ordinem. Nee enim debet morari in uno loco per duas noctes vel per duos dies antequam personam regis videat, nee debet ad aliqua negotia quamvis urgentissima se convertere, quia vix permittitur ei quod retro aspiciat." Bracton, Lib. iii., fo. 118 h. NOTE V. (to Article 191.) The latter part of this Ai'ticle is grounded partly upon general considerations and partly upon the case referred to in the Illustrations. Further illustrations of the same principle 1 3 Edw. 1, c. 25 ; 13 Edw. 1, c. 49 ; 28 Edw. 1, c. 11 ; 1 Edw. 3, st. 2, c. 14 ; 1 Ric. 2, c. 4 ; 32 Hen. 8, c. 9. D D 402 A DIGEST OF might easily be given. For instance, the publication of an edition of Juvenal, Aristophanes, Swift, Defoe, Bayle's Dic- tionary, Rabelais, Brantome, Boccaccio, Chaucer, kc, cannot be regarded as a crime ; yet each of these books contains more or less obscenity for which it is impossible to offer any excuse whatever. I know not how the publication of them could be justified except by the consideration that upon the whole it is for the public good that the works of remarkable men should be published as they are, so that we may be able to form as complete an estimate as possible of their characters and of the times in which they lived. On the other hand, a collection of indecencies might be formed from any one of the authors I have mentioned the separate publication of which would deserve severe punishment. In scientific matters the line between obscenity and purity may be said to trace itself, as is also the case in reference to the administration of justice. It may be more difficult to draw the line in reference to works of art, because it undoubtedly is part of the aim of art to appeal to emotions connected with sexual passion. Practically I do not think any difficulty could ever arise, or has ever arisen. The difference between naked figures which pure-minded men and women could criticise without the slightest sense of impropriety, and figures for the exhibition of which ignominious punishment would be the only appropriate consequence, makes itself felt at once, though it would be difficult to define it. NOTE VI. (to Articles 199-204.) There is a good deal of difficulty in bringing into a clear and systematic form the provisions of the various statutes relating to the suppression of disorderly houses, and especially gaming- houses. I think, however, that the text represents their efiect with substantial accuracy. The matter stands thus. The earliest Act upon the subject now in force is 33 Hen. 8, c. 9, "An Act for Maintenance of Artillery and Debarring of Unlawful Games." This Act was intended to compel people to pi^actise archery by making all other amusements unlawful, and it accordingly forbids by name THE CRIMINAL LAW 403 bowls, quoits, tennis, and various other games, cards and dice, and all other unlawful games prohibited by any of the statutes which it repealed, as well as all other unlawful games to be subsequently invented. The expression " unlawful games " is no- where defined, unless it means every amusement except archery. By the 10 Will. 3, c. 23, lotteries were forbidden. By the 12 Geo. 2, c. 28, " the games of ace of hearts, pharaoh, basset, and hazard"' were declared to be lotteries, and, as well as what we now call raffles, were forbidden under penalties. By the 1 3 Geo. 2, c. 19, the same course was taken as to a game called passage, " and all other games invented or to be invented with one or more die or dice," backgammon only excepted. By 18 Geo. 2, c. 34, these enactments were extended to " a certain pernicious game called roulet or roly poly," and that game and " any game at cards or dice, already prohibited by law," were prohibited afresh. The 8 & 9 Vict. c. 109 repeals so much of the Act of Henry VIII. as relates to games of mere skill, and provides that upon any information or indictment for keeping a common gaming- house " it shall be sufficient to prove " the matter stated in Article 204. This enactment was passed in order to dispose of doubts that apart from its provisions it would have been necessary to prove that the parties played at one of the games specifically prohibited by the Acts of Geo. II., or at one of the games of chance prohibited by the Act of Henry VIII. NOTE VII. (General Note to Part V.) The arrangement of this part, and in particular the composition of Chapters XXI. and XXII., has been the most difficult portion of the task of preparing this Digest. No one who has not made a special study of the subject can have any adequate notion of the extreme confusion of the authorities, or of the difficulty of extracting anything systematic and definite from a number of scattered hints and isolated decisions upon particular cases — mostly relating to the law of homicide. Upon a full examina- tion of the authorities on this subject it appeared to me that the law contained in them ought to be divided into four parts — namely : — -1. Cases in which it is not criminal to inflict death D I) 2 404 A DIGEST OF or bodily harm intentionally. These are the execution of legal sentences, keeping the peace, prevention of crime, self-defence, the use of lawful force, consent and accident. The expression " lawful force " is unavoidably vague. To enumerate every case in which the use of personal violence may be justified would be inconsistent with the scheme of this work. It would, for instance, be going beyond the limits of criminal law to inquire into the extent of the right of correction vested in parents, masters, captains of merchant ships, &c., or of the right of the owner of a personal chattel to take it away from a trespasser, or to try to enumerate all the cases in which civil and criminal process may be executed by the use of force, and the conditions necessary to make it legal. I have accordingly confined myself to the general principles stated in Articles 220, 221. 2. Cases in which the infliction of death or bodily harm by omissions is or is not criminal. Injuries caused by the omission to do an act which the negligent person is under a legal duty to do stand on the same footing as injuries caused by unlawful acts. It is, therefore, necessary to define the commoner and more important of the legal duties which tend to the preservation of life. I have, therefore, deduced them in Chapter XXII. from the different decisions in which a violation of them has been held to occur. Of course the chapter does not contain an exhaustive list of all the duties which might tend to the preservation of life under particular circumstances, though I hope it notices the most important of them. 3. Cases relating to homicide generally and a23art from the distinction between murder and manslaughter. 8uch are the point of time at which a child becomes a human being, the degree of connection between an act and the death caused by it necessary in order to enable us to say that the agent has killed the deceased, and the case in which the act done is not the sole cause of death. Thus, if an unborn child receives an injury of which it dies before it is fully born, the infliction of the injury cannot be either murder or manslaughter. If it dies after it is fully born, the infliction of the injury may be either justifi- able homicide, accidental homicide, manslaughter, or murder, according to circumstances. This makes it possilile to enumerate the cases in which homicide is unlawful, and so to give a specific meaning to the expression " unlawful homicide."' THE CRIMINAL LAW 405 4. The definition of malice aforethought. Unlawful homicide must be manslaughter at least, and may be murder if it is accompanied Iw malice aforethought ; and, after dealing with this, the transition to the less serious bodily injuries, felonious or otherwise, is easy. When this division of the subject is carried out it looks simple ; at least I hope so ; but any one who will try the experiment of referring to the authorities will iDelieve me when I assert that it cost me weeks of thought and labour to put the matter in this shape. T believe, however, that it is now not ver}' incomplete. The table on p. 406 shows, I think, that every imaginable kind of homicide has been considered, and has been classified as lawful or unlawful in some parts or other of Chapters XXL, XXII., and XXIIL, and if this be so the definitions of murder and manslaughter must also be complete. This table gives seven distinct kinds of homicide, as follows : — " 1. Homicide by an act accompanied by a lawful intention to kill or hurt (Chapter XXI.) 2. Homicide by an act accompanied by an unlawful intention to kill or hurt (Article 243 (a) ). 3. Homicide by an act in itself lawful, and not accompanied by an intention to kill or hurt (Article 231). 4. Homicide by an act in itself unlawful, but not accompanied by an intention to kill or hurt (Article 243 (c) ). 5. Homicide by an omission to discharge a legal duty amounting to culpable negligence (Chapter XXII., Article 243 6. Homicide by an omission to discharge a legal duty not amounting to culpable negligence (Article 232). 7. Homicide by an omission to do an act not amounting to a legal duty (Article 233). Of these Xos. 1, 3, 6, and 7 are not unlawful in the sense of being criminal. Nos. 2, 4, and 5 are unlawful. Every act falling within these definitions must be manslaughter at least, and may l^e murder if it is accompanied by malice aforethought, as defined in the next chapter, and is not provoked. Unless some kind of homicide can be suggested which is not comprehended in one or other of these classes, the subject is exhausted in these chapters. 406 A DIGEST OF ^j -ti >j iC -to F-H (1) c rQ o j3 Cfi C O P- > r£2 -to 0) c3 -^■2 ZJ ::: 2 hur r^ S f^ ij o o 5 o O J- ^ '^ o =° iS cc "" bJOTS ^ CJ •- '^ >> 1 fi '^ « bO<*H ^ •s ^ >>o "^ ID C3 t£ 43 . ^ r-* g -ij "^ ^ n a ii .2 o ri X ^ |, S c s S C f— • ^ c •'- n: o 8 fl^ ■^ ri "S 4> -to 5P^' '.-H 'aj ^ THE CRIMINAL LAW 407 NOTE VIII. (Article 244.) Definition of Murder and Manslaughter. This definition represents the solution at which I have arrived after much consideration of one of the most difficult problems presented by the criminal law — the problem of giving in a short compass the result of a great number of decisions and statements by authoritative writers upon the subject of murder. I do not propose in this note to examine the history of the law on this subject, or to enter into any inquiry as to its merits and demerits. I propose simply to show that it is stated correctly in the text.^ It will be sufficient for this purpose to show that the definition which I have given coincides with the theory laid down by the authorities on the subject, which I shall try to establish by showing that my definition of murder and man- slaughter respectively will be found upon examination to be equivalent to what is stated in Coke's 3rd Institute, Chapters VII. and VIII., 1 Hale's Pleas of the Crown, pp. 411—502 (Chapters XXXI. — XLII. both inclusive), and Foster's Dis- course on Homicide (Crown Law, 255 — 337). The existing law on the subject is founded mainly upon these works, and the almost innumerable decisions bearing upon the subject are all applications of the theory which is there laid down. The decisions have been collected more or less fully, and arranged in a more or less satisfactory way, by various writers, but for every practical purpose the collection contained in Russell on Crimes is sufficient, though in point of arrangement it is, I think, inferior to the older work of East.- Itfills 212 pages (640 — 852) of the first volume of the 5th edition. 1 In fonner editions this note also showed in the words of the author " that all the points decided by the various cases relating to any form of homicide are comprehended in what I have said on the subject in the different Articles contained in Chapters XXI. — XXIV. both inclusive, for the various decisions in question range over all the subjects treated of in those chapters indiscriminately." This was done by a table j^roving that the text included the effect of all the cases, bearing on the subject men- tioned in Russell on crimes, which is now omitted ; bxit if any doubt is felt as to the fact of such inclusion, reference may be made to pp. 385- 390 of the edition of 18S7. 2 Two modem decisions on the subject of the law of murder of 408 A DIG ESI' OF The intricacy, confusion, and uncertainty of this branch of the law may he traced to the statute 23 Hen. 8, c. 1, s. 3, which took away benefit of clergy in cases of " Avilful murder of maHce j^repensed," and which thus created the necessity of preserving the expression " mahce prepense," and at the same time explaining it away. Coke endeavoured to effect this by the doctrine of constructive or fictitious malice, of which, if not the author, he was the most conspicuous expounder, and he showed in his exposition of it that utter incapacity for anything like correct language or consecutive thought which was one of his great characteristics. Hale amplifies Coke, Foster rational- izes Hale, and the judges have, in an unsystematic occasional way, worked out, bit by bit, the result recorded in the text. Accoi'ding to Coke, malice aforethought is the criterion by which murder is distinguished from manslaughter. Malice may be either expressed or implied. ^ " Malice prepensed is where one compasseth to kill, wound, or beat another and doth it sedato animo." ^ " Malice implied is in three cases : — " First, in respect of the manner of the deed, as if one killeth another without any pi-ovocation of the part of him that is slain, the law implieth malice. " Second, in respect of the person slain. As if a magistrate or known officer, or any other that hath lawful warrant, and in doing or offering to do his ofiice or to execute his warrant, is slain, this is murder by malice implied in law, as the " ^ person killed is " the minister of the kins:." importance were given before 1876, when the 5th edition of Russell was published, but not having Ijeen reported in the ordinary law reports have not been noticed in that edition. They are the cases of R. v. Allen and Others, the Fenians, tried at Manchester for the murder of the policeman Brett, in 1867, and the case of i?. v. Desmond arid Others, for killing people by blowing up the wall of Clerkenwell Prison, in 1868. Neither of these cases is reported in the common reports. I have cjuoted what was said by Lord Chief Justice Cockljurn in Desmond's Cam in Art. 244, lUust. (8), and I have reprinted in the note next following from the Times, the correspondence which passed between the counsel for the prisoner and Lord (then Mr. Justice) Blackburn, in R. v. Allen and Others. Though not in form it constitutes in fact an argument and a written judgment on a very important point. 1 3rd Inst. 51. 2 Ibid. 52. 2 The sentence here is not even grammatical. THE CPdMIKAL LAW 409 " Third, in respect of the person kilKng. If A. assaults B. to rob him, and in resisting A. killeth B. {i.e. if B. resists and A. kills him) this is murder Ijy malice implied, albeit he " (A.) " never saw or knew him " (B.) " before." These passages, overloaded, as Coke's manner is, with a quantity of loose ramljling gossip, form the essence of his account of murder. Hale, who arranges his matter more systematically (though he also is exceedingly confused), ^ adopts Coke's theory in slightly different language. " Such a malice, therefore, that makes the killing of a man to be murder is of two kinds : 1. Malice, in fact, or 2, malice in law, ov ex iwoisumptione legis.'" " Malice in fact is a deliberate intention of doing some corporal harm to the person of another." "Malice in law, or presumed malice, is of several ' kinds, viz., 1. In respect of the manner of the homicide, when without provocation. 2. In respect of the person killed, viz., a minister of justice in the execution of his office. 3. In respect of the person killing." (As to which he - afterwards repeats Coke in an abridged form.) Manslaughter, Coke ^ tells us (in the middle of a bewildering chapter about homicide in general), is homicide, " not of malice forethought" [but] "upon some sudden falling out." Manslaughter is treated by Hale in a manner so meagre and yet so confused that no notion of it can be obtained except by reading through Chapters XXXYIII. — XL., and trying to make sense of them. Hale's whole definition of the offence is in these words, " Manslaughter, or simple homicide, is the voluntary killing of another without malice express or implied.'' These definitions are open to the remark that the definition of express malice includes all the three cases of implied malice. Express malice means the deliberate intentional infliction of Ijodily harm. Malice is implied if the act is done without provocation, or in resisting an officer of justice, or in committing a crime. But in each of these cases the infliction of bodily harm must be intentional, and there is no reason why in each of them it should nut Ije deliberate. 1 1 Hale, P. C. 451. ^ Page 465. ■' 3rd Inst. 55. 410 A DIGEST OF Thus the distinction between express and implied malice is a distinction without a difference. It has involved the whole subject in an obscurity from which it can never be rescued except by legislation, though I think the way in which it is stated in the text is correct, and may contribute to dispelling the confusion. Coke's theory, however, and that of Hale may be exhibited in the following propositions : — 1. Unlawful killing by any sort of premeditated intentional personal violence is murder. 2. Premeditation is to be presumed if the violence is inten- tional and unprovoked. 3. Unlawful killing b}^ unpremeditated intentional personal violence is murder if the violence is employed in the commission of a crime or in resistance to lawful authority. 4. Unlawful killing by vmpremeditated intentional violence provoked is manslaughter. These four propositions may be also stated thus — so as to show their connection : Unlawful killing by any sort of intentional personal violence is murder, unless such violence is used " upon a sudden falling out," constituting provocation to the offender, but neither the exercise of force by an officer of justice against an offender, nor resistance to the offender by a person against whom a crime is attempted, constitutes such a provocation, and killing in such cases is murder. That this proposition is the equivalent of the four propo- sitions given above is thus proved : ^ All intentional violence must be either provoked or unpro- voked. All intentional violence must be either premeditated or un- premeditated. 1 This may be expressed thus in a tal)ulai' form : — Intentional { Violence must be Premeditated. or Unpremeditated. Provoked or Murder by proposition 1 . Not murder by proposi- tion 4, except in cases under proposition ,3. Unprovoked ... Murder by proposition 1. Murder by proposition 2. THE CRIMINAL LAW 411 Killing by premeditated intentional personal violence is murder by (1). Killing by unpremeditated, unprovoked intentional personal violence is, by (2), equivalent to killing by premeditated inten- tional personal violence, and is therefore murder. Therefore all killing l)y intentional personal violence is murder, unless such violence is both provoked and unpremeditated. By (3) killing by intentional personal violence unpremedi- tated, and provoked only by the exercise of lawful force in the ways mentioned, is murder. Therefore the four propositions are equivalent to the one last stated. The legal character of unintentional killing was held by Coke and Hale to depend on the character of the act by which death was caused. If the act was unlawful the offence was murder. If lawful the death was killing by misadventure, which, in Hale's time, seems to have covered, at all events in part, the ground now occupied by manslaughter by negligence. As to this Hale says : — ^ " Though the killing of another per infortunium, be not in truth felony, nor subjects the party to a capital punishment, though it was not his crime, but his misfortune, yet, because the King hath lost his subject, and that men may he more careful, he forfeits his goods, and is not presently absolutely discharged of his imprisonment, but bailed," &c. Upon the whole, the law as to unlawful homicide, as under- stood by Coke and Hale (the effect of what they say on justifiable homicide is given in Chapter XXI.), may be summed up as follows : — Murder is unlawful killing («) by any intentional personal violence not inflicted upon a sudden falling out ; (6) by any unintentional personal violence inflicted in an unlawful act. Manslaughter is killing by any intentional personal violence inflicted upon a sudden falling out, provided that if a man attempting to commit a crime upon another is resisted, and kills the person resisting, or if a man resists an officer of justice in the exercise of his duty, and kills him, the offence is murder, and not manslaughter, although there is something which may be described as a sudden falling out between the parties. 1 1 Hale, P. C. 477. 412 A DIGEST OF The following theory was collateral to this definition, and was supposed to be its basis : — In all murder there is malice aforethought. In murder as- defined in (a.) there is express malice aforethought if the circumstances show premeditation. There is implied malice aforethought if the act was done suddenly, and without provo- cation. In murder as defined in (b) and in the proviso to the definition of manslaughter, the malice is always implied. In manslaughter there is no express malice afoi^e thought, and it is not thought proper to imply it. These explanations show the true nature and real use of the expression " malice aforethought " — a mere popular phrase un- luckily introduced into an Act of Parliament, and half explained away by the judges. It throws no light whatever on the nature of the crime of murder, and never was used in its natural sense of premeditation. On the other hand, it served as a sort of standing hint at the kind of definition which was wanted, for it was equivalent to saying that there were two degrees of homicide — homicide with premeditation, or other circumstances indicating the same sort of malignity ; and homicide provoked by a sudden quarrel, or accompanied with other circumstances indicative of a less degree of malignity. Foster's discourse on Homicide is little more than an amplifi- cation of this thesis. He goes through all the principal cases which have been decided in his time, and compares them with the theories of Hale and Coke, drawing the conclusion that malice means " that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved, and malignant spirit ; a heart regardless of a social duty, and fatally bent upon mischief ; " ^ a principle more shortly expressed by Holt, L.C.J., in the words, " He that doth a cruel act voluntarily doth it of malice prepensed." '^ This principle gives its due prominence to a distinction which appears to have been quite unknown to Coke, though it had attracted the attention of Hale, and is, one would think, obvious enough in itself — the distinction, namely, between causing death ' 1 Foster, 256. - B. V. Mawgridge, 1706, Kelyng (3rd ed.), IT-t. This judgment con- tains an admirable summary of the law of murder and manslaughter as it was understood in the beginnmg of tlie eighteenth century. THE CRIMINAL LAW 413 unintentionally by an act likely to cause death, and causing death unintentionally by an act unlikely to cause death. According to Coke ^ and Hale " a settled design to beat a man makes killing him by such beating murder. Hale, however, seems to doubt whether, if the beating was moderate, the killing might not be manslaughter, and mentions ^ one case in which a soldier having killed a woman who abused him by throwing a broomstick at her, the judges were divided on the question whether the act was murder or not, and recommended a pardon. This view of the matter is developed at length by Foster, who discusses many cases in connection with it, and may be regarded as having laid the foundation of the modern doctrine on the subject, which has since his time been recognised in a vast number of cases, that the general presumption of malice which arises fi'om the fact of killing is rebutted if it appear that the means used were not likely to cause death. Foster to some extent mitigates the barbarous rule laid down by Coke as to unintentional personal violence, by confining it to cases in which the unintentional violence is offered in the commission of a felony. This rule has in modern times had a singular and unexpected effect. When Coke and Hale wrote, the iirfliction of hardly any bodily injury* short of a maim was a felony. Cutting with intent to disfigure was made felony by the Coventry Act ; shooting was made felony by what w'as called the Black Act ; and by later statutes it has been provided that the intentional infliction of grievous bodily hai'm in any way whatever shall be felony (see Article 257 (a) ). The result is that Foster's rule as to the intent to do grievous, as distinguished from the minor, bodily harm being essential to malice aforethought now rests on statutory authority, for no one can intentionally inflict on another grievous bodily harm without committing a felony, and to cause death by a felonious act is murder. The law as to homicide by omission is more modern, but closely follows the lines of the older part of the law. The authorities on it will be found in the Illustrations. 1 ,3r(l Inst. 50. ^ 1 Hale, P. C. 472. 3 1 Hale, P. C. 4.56. •* Cutting out the tongue, or putting out the eyes, was felony l)y 5 Hen. 4, c. 5. 414 A DIGEST OF NOTE IX. (to Articles 246 (c), 247.) The following correspondence was published in the Times of Nov. 21, 1867. It refers to the case of R. v. Allen and Others, convicted at the Manchester Special Commission of the murder of Brett, a i:)olice officer, whom they shot in an attempt to rescue a Fenian prisoner from a police van in Manchester. There is no legal report of the case so far as I know, but, as will be seen, the letter of the prisoners' counsel, and the reply of Lord (then Mr. Justice) Blackburn are substantially an argument and a judgment on a matter of very great importance. I have, therefore, rej^ublished them from the Times, with Lord Black- burn's permission. Statement submitted to Mr. Justice Blackburn and Mr. Justice Mellor. " Regina v. Allen and Others. " Upon the trial of Allen and Others for the murder of Sergeant Brett, two points of law arose, under the following circumstances : — "On the morning of the 11th of September last, two men, who turned out afterwards to be Kelly and Deasy, were arrested by a Manchester policeman, as he alleged, under section 216 of the Manchester Police Act (7 & 8 Yict. c. 40), which enacts that it shall be lawful for any constable belonging to the police force of the borough to take into custody, without a warrant, all loose, idle, or disorderly persons whom he may find disturbing the public peace, or in his own view committing an ofience against this Act, or whom he shall have good cause to suspect of having committed, or being about to commit, any felony, misdemeanor, or breach of the peace, or to instigate or abet any such breach. " The two men, who gave the names of White and Williams, were taken before a magistrate on the 1 1 th, and remanded until the 1 8th by a warrant, which stated the charges against them to be, not for suspicion of felony, on wdiich charge they were arrested, but for ' felony,' and omitted to specify wdiat felony or other offence they were charged with. They wei^e brought up again on the 18th, when no evidence w^hatever was given THE CRIMINAL LAW 415 upon the charge on which they were alleged to have been arrested, but an inspector of detectives from London, who stated he had a warrant against Kelly for treasonable practices, alleged to have been committed in Ireland, and a constable from Ireland, who was stated to have a similar warrant against Deasy, appeared, and on their application, without the produc- tion of either of the warrants, which, in fact, were not then backed as the statute required, the prisoners were again remanded for a week. "No warrant for such second remand was produced upon the trial, but it was stated that a warrant had been signed, a copy of that signed on the 11th inst., and had been destroyed by the police after the escape of the prisoners. " Kelly and Deasy were then placed in the prison van, for the purpose of being taken to prison, and on the way the van was attacked, the prisoners rescued, and Brett killed. " The two questions were : 1st, whether or not Kelly and Deasy were in legal custody ; and 2nd, if they were not in legal custody, whether the crime of killing Brett, in the act of rescuing them, amounted to murder or manslaughter. "As to the first point, it would seem (1st) that the magistrate had no jurisdiction to commit for felony, no charge of felony having been made ; and (2nd) that the magistrate had no jurisdiction to entertain the charge of treasonable practices committed in Ireland, or to remand the prisoners upon such a charge. B}^ the 11 & 12 Vict. c. 42, s. 22, justices are em- powered to take the examination of witnesses against persons who are brought before them charged with an offence alleged to have been committed in any county or place within England and Wales wherein they have not jurisdiction. By sect. 2 of the same Act they are empowered to issue their warrant to apprehend any one within their jurisdiction charged with having committed any crime or offence on the high seas, or in any creek, harbour, Arc, or any ' crimes or offences committed on lands beyond the seas for which an indictment may legally be preferred in any place within England or Wales.' By sect. 11, where an English warrant is backed in England, the offender, when apprehended, may be taken before the justice who issues the warrant, or, if so directed by the justice backing the warrant, before such last-mentioned justice, or any other justice of the same county or place : l:)ut by sect. 1 2, where an 416 A DIGEST OF Irish warrant is backed in England, the offender must be taken before the justice who granted the warrant, and there is no power to take him before the magistrate who has backed it. It would seem, therefore, that in this case the proper course would have been, in the case of Deasy at least, for the magis- trate to have backed the Irish warrant, and for the prisoner to have been taken, under the authority of the warrant so backed, to Ireland, and that the magistrate had no jurisdiction to examine anj?- witnesses against Deasy, or to remand him upon the charge of felony. " Thirdly. — It is laid down in Coke's Second Institute, p. 591, when speaking of prison breaking, that a mittimus must ' contain the cause, but not so certainly as an indictment ought, and yet with such convenient certainty as it may appear judicially that the offence (prison breaking), tale judicium requirit as j^ro altd proditione, viz. in personam domini regis, &c., or j)'*'o felonid, viz., 2^t'o morte talis, ifec.,' and he lays it down that a mittimus pro felonid generally is bad. So again. Hale (P. C. vol. ii. p. 122) says that a mittimus 'must contain the certainty of the cause, and therefore if it be for felony it ought not to be generally j^^'o felonid, but it must contain the especial nature of the felony briefly, as for felony for the death of J. S., or for burglary in breaking the house of J. S., etc., and the i^eason is because it may appear to the Judges of the King's Bench upon an habeas corpus whether it be a felony or not.' Hale, however, adds, that he does not think the absence of such particularity would make the warrant void. It is worthy of notice that in the forms of remand given by Chitty in his Criminal Law, vol. iv. pp. 33, 116, and in the form given in the 11 & 12 Vict. c. 42 (Q. 1), the felony is specifically described. " The second point, which appears to be of the greater import- ance, looking at the actual direction to the jury, and to the fact that they were not asked to find the existence, contents, or form of the warrant, is whether, assuming the detention of one or both of the prisoners to have been illegal, the killing of Brett amounted to murder. " The first case on the subject is that of Sir H. Ferrers (Cro. Car. 371), who was arrested for debt, and thei'eupon Nightingale, his servant, in seeking to rescue him, as was pretended, killed the bailiff, ' but because the warrant to arrest him was by the name of Heniy Fen-ers, Knight, and he never was a knight, it THE CRIMINAL LAW 417 was held by all the Court that it was a variance in an essential part of the name, and they had no authority by that warrant to arrest Sir Henry Ferrers, Baronet, so it is an ill warrant, and the killing of an officer in executing that warrant cannot be murder.' This case is also reported by Sir W. Jones (p. 346), where it is said to have been held not to be murder either in the servant or in the prisoner, because the warrant was not good. " The next case is that of Ilophin Hv(j(/ef, which was tried in 1666, and is best reported in Kelyng (p. 59). In that case, Hugget and three others pursued three constables who had impressed a man, and demanded to see their warrant. The constables showed a paper which the prisoner said was no warrant, and thei'eupon they drew their swords, and Hugget killed one of the constables. Of the twelve judges eight delivered their opinion that this was no murder, but only manslaughter, and they said that if a man be unduly arrested or restrained of his liberty by three men, although he be quiet himself, and do not endeavour any rescue, yet this is a provocation to all other men of England, not only his friends, but strangers also, for common humanity's sake, as my Loi"d Bridgman said, to endeavour his rescue ; and if in such endeavour of rescue they kill any one, that is no murder, but only manslaughtei*. The four other judges held it murder, and thought the case in question to be much the stronger, because the party himself who was impressed was quiet and made no resistance, and they who meddled were no friends of his or acquaintances, but mere strangers, and did not so much as desire them which had him in custody to let him go. Although all the Judges of the King's Bench thought murder, they conformed to the opinion of the other eight, and gave judgment of imprisonment for eleven months. "In Reg. v. Mawgridge, which was tried in 1707 (Kelyng, 136), the Chief Justice alludes to Ihigget's Case a,H having settled the law upon the point. "In Tooley's Case (2 Lord Raymond, 1296), which was tried in 1710, Ann Dakin was in custody of one Bray, when the prisoners, who were strangers to Dakin, assaulted Bray, but withdrew. They afterwards assaulted Bray again, after the woman had been locked up, and killed one Dent, whom Bray liad called to his assistance. One of the prisoners gave the stroke, the two others were aiding and abetting. Seven of the E E 418 A DIGEST OF twelve judges held this to be manslaughter, and five held it to be murder, one of the five thinking that the constable had authority. Those judges who held the oflfence to be man- slaughter only so held on the opinion that the prisoners had sufficient provocation, for if, say they, one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people out of compassion, much more where it is done under a colour of justice, and where the liberty of the subject is invaded it is a provocation to all the subjects of England. "In Beff. V. Adei/ (1 Leach, 206), which was tried in 1779, a somewhat similar point arose, and the presiding judge, on the authority of Tooley's Case, reserved the point for the consideration of the twelve judges. The prisoner escaped in the riots of 1780, and no judgment was given, but Leach says that it was understood the judges held it to be manslaughter only. "Again, in Eeg. v. Osmer (5 East, 304), argued in 1804, Lord Ellenborough, C. J., says, that ' if a man without authority attempt to arrest another illegally, it is a breach of the peace, and any other person may lawfully interfere to prevent it, doing no more than is necessary for that purpose.' "In Eeff. V. Phelps (Car. & M. 180), tried in 1841, a policeman attempted to apprehend a man on suspicion of having stolen growing potatoes. He resisted, and some pei'sons came to his aid and killed one Southwood, whom the policeman had called to his assistance. Upon proof of these facts, Coltman, J., directed the jury that as the policeman had no right to apprehend the man the ofience of those who killed Southwood was man- slaughter only, and not murder. " These appear to he the cases bearing most closely on the subject, but turning to the authority of text writers, and the dicta of judges, we find Hawkins, in his Pleas of the Crown (Book I. chap. xxxi. sec. 60), stating the law as it was laid down in llurjget's and Tooleijs Cases, and adding that ' since in the event it appears that the persons slain were trespassers, covering their violence with a show of justice, he who kills them is indulged by the law, which in these cases judges by the event, which those who engage in such unlawful actions must abide at their peril.' "Hale (P.C. vol. i. p. 465) also cites Hugget's Case, and appa- rently with approval. " On the other hand, Foster, J., in his Discourse upon Crown TEE CRIMIXAL LAW 419 Law (p. 312), while he appears to approve of the law as laid down in Huggefs Case, combats the doctrine of the majority of the judges in Tooley's Case, and appears to doubt the propriety of that decision, partly upon general principles, and partly because the second assault on the constable seemed to him rather to have been grounded upon resentment or a principle of revenge for what had before passed, than upon any hope or endeavour to assist the woman. " It is these observations of Foster, J., which Alderson, B., appears to have had in his mind when he is reported to have said in Reg. v. Warner (1 Moo. C. C. 385) that Toolei/s Case had been overruled. Tooley's Case had, in fact, no bearing upon Warner's Case, in which no attempt was made to arrest the prisoners at all, and Alderson, B., does not refer to any authority for his statement. A similar remark was made by Pollock, C.B., in Reg. v. Davis (Leigh & Cave, C. C. 71), but there again no authority is given. "East, in his Pleas of the Crown, vol. i. p. 325, states the question with the arguments on either side, without showing much leaning either way ; and so does Russell (Criminal Law, vol. i. p. 632), although his editor, Mr. Greaves, from his note (p. 848 of the 4th edition), appears to have been convinced by the arguments adduced by Foster. " It would thus seem that the doctrine laid down by the majority of the judges in the cases of Ferrers, Hugget, and Tooley has been acted upon, not only in those cases, but also in R. V. Adey and Reg. v. Phelps, and recognised in R. v. Maw- gridge and R. v. Osmer, and by Hawkins and Hale. '• The opposite doctrine is supported by a minority of the Judges in Hugget and Tooley's Cases, and by Foster, J., and receives some sort of sanction from the observations of Alderson, B., and Pollock, C.B., if they can be considered to display a sufficiently accurate knowledge of the subject to entitle them to any weight. This view of the law, however, has never once l)een acted upon, and it follows that if the prisoners convicted at Manchester be executed without any discussion of the law, they will be put to death in opposition to the decided cases on the subject, upon the authority solely of extra-judicial argu- ments and dicta. " In some of these arguments a distinction has been taken between the interference of a friend or a relative and that of a E E 2 420 A DIGEST OF mere stranger ; but this distinction does not appear to rest on any authority. Hawkins, in his Pleas of the Crown (Book I. ch. xxxi. ss. 56 and 57), says that 'if a man's servant, or friend, or even a stranger, coming suddenly and, seeing him fighting with another, side with him and kill the other — or, seeing his sword broken, send him another wherewith he kills the other — he is guilty of manslaughter only.' Yet in this very case, if the person killed wei'e a bailiff, or other officer of justice, resisted by the master, itc, in the due execution of his duty, such friend, or servant, etc., are guilty of murder, whether they knew that the person slain were an officer or not. " For these and other reasons, we are of opinion that the points raised in this case are of such a grave and serious character as to demand further discussion and consideration, and that they ought only to be decided after full and deliberate argument before the Court of Criminal Appeal. " W. DiGBY SeYiMOUR, Q.C. " Michael O'Brien, S.L. " Ernest Jones. " James Cottingham. " Lewis W. Cave." Reply of Mr. Justice Blackburn. ''Xovemher 20, 1867. " Dear Mr. Seymour, " Mr. Justice Mellor and I have received and carefully perused the paper signed by you, my brother O'Brien, and Mr. Cave. " It contains nothing that is new to us, but it puts all the authorities in the light most favourable for your clients, and I need not say that it is a great satisfaction to us to think that nothing has been ovei'looked which could bear on so gi'ave a question. "The Legislature have by the 11th and 12th of Victoria, cap. 78, cast upon the presiding Judges the very disagreeable and invidious duty of determining whether their own view of the law at the trial is or is not so questionable as to justify an appeal. If they refuse to reserve any point made, it is still open to the prisoners to appeal to the equitable consideration of the Sovereign, but no appeal lies to any Court of law. " In the present case my brother Mellor and I considered the THE CRIMINAL LAW 421 points raised before us on the trial, and entertained no doubt that the direction which we then gave was strictly according to law. We, therefore, x'eserved no question for the Court of Appeal at the time, but simply postponed our final determina- tion on the sul)ject until we had the means of referring to the authorities and considering the case more at leisure. We have now considered the authorities, and have consulted the other Judges, not with a view of dividing our responsibility, nor in order to olitain a judicial opinion from them which they could not give on a point not regularly before them, but because, in a case so serious, we were very anxious to have the best advice and assistance that we could obtain for our guidance. I do not say, that if the result of such consultation and research had l)een to lead to the conclusion that there was doubt enough to justify a further appeal, it would have relieved us from a most painful responsibility. I regret to say that the result has Ijeen to satisfy us that the law is too clear to justify us in reserving any point for the considei'ation of the Court of Criminal Appeal. " Entertaining that opinion, we have officially informed the Secretary of State for the Home Department that there will be no further appeal to a Court of law, and that it is now for Her Majesty's Government alone to determine what shall l^e done with the convicts. " This decision of ours is final ; but, as a satisfaction to you and the other Counsel for the prisoners, I will briefly state the reasons which have induced us to think the law too clear for argument. " When a constable, or other person properly authorised, acts in the execution of his duty, the law casts a peculiar protection around him, and consequently, if he is killed in the execution of his duty, it is in general murder, even though there be such circumstances of hot blood and want of premeditation as would in an ordinary case reduce the crime to manslaughter. But where the warrant under which the officer is acting is not sufficient to justify him in arresting or detaining prisoners, or there is no warrant at all. he is not entitled to this peculiar protection, and consequently the crime may be reduced to manslaughter when the offence is committed on the sudden, and is attended by cii'cumstances affording reasonable provocation. '' The cases which j^ou have cited are authorities that where the. affray is sudden, and not premeditated, when, as Lord Holt 422 A DIGEST OF says in Ji. v. Tooley (2 Lord Raymond, 1300), 'it is acting without any precedent malice or apparent design of doing hurt,' the mere fact that the arrest was not warranted may be a sufficient provocation. " But in every one of these cases the affray was sudden and unpremeditated. '' In the present case the form of warrants adopted may he open to objection, and probably might, on application to the Court for a writ of habeas, have entitled the prisoners to be discharged from custody ; but we entirely agree with the opinion of Lord Hale (2 Pleas of the Crown) that, though defective in form, the gaoler or officer is bound to obey a warrant in this general form, and consequently is protected by it. This is a point which, had the affray been sudden and unpremeditated, we probably should have thought it right to reserve. " In the present case, however, it was clearly proved that there was on the pai^t of the convicts a deliberate, prearranged conspiracy to attack the police with firearms, and shoot them, if necessary, for the purpose of rescuing the two prisoners in their custody, and that they were all well aware that the police were acting in obedience to the cormnands of a justice of the peace, who had full power to remand the prisoners to gaol if he made a proper warrant for the purpose. It was further manifest that they attempted the rescue in perfect ignorance of any defect in the warrant, and that they knew well that if there was any defect in the wan-ant, or illegality in the custody, the courts of law were open to an application for their release from custody. We think it would be monstrous to suppose that under such circumstances, even if the justice did make an informal warrant, it could justify the slaughter of an officer in charge of the prisoners, or reduce such slaughter to the crime of manslaughter. " To cast any doubt upon this subject would, we think, be productive of the most serious mischief, by discouraging the police in the performance of their duties, and by encouraging the lawless in a disregai'd of the authority of the law. " We feel bound, under these circumstances, to decline to take a course which might lead to the belief that we considered the matter as open to doubt. "Colin Blackburn." THE CRIMINAL LAW 423 NOTE X. (to Chapter XXXIII.) Libel. The statement of the law of libel contained in this chapter is, I believe, complete, though it is very short in comparison to the standard works on the subject. Folkard's edition of Starkie on Slander and Libel consists of 870 large 8vo pages, besides an appendix of statutes. It contains much other matter besides a definition of the crime of libel ; but that definition, and the explanation of the offence itself, fill more than 190 pages The greater part of this mass of matter consists of illustrations, but something is also due to the singularly complicated manner in which the law has grown up. . The word "malicious" in reference to the offence of libel has been elaborated by the judges into a whole body of doctrine on the subject in the same sort of way as the words " malice afore- thought " in the definition of murdei*. The process was of this sort. Malice was first divided into malice in fact and malice in law — malice in fact being personal spite, and malice in law being defined to be "a wrongful act done intentionally, and without just cause or excuse." Inasmuch as the publication of a libel must always be inten- tional, and inasmuch as the Courts held that to publish defama- tory matter of another was, generally speaking, a wrongfvil act, the result of this was that every publication of defamatory matter was a crime, unless there was some just cause or excuse for it. What amounts to a "just cause or excuse" was decided by a multitude of cases. The phraseology employed in their decision has been as follows. Defamatoiy matter which it was considered lawful to jjublish has been described as a " privileged communication." This "privilege" has been regarded as re- butting the presumption of malice ai'ising from the fact of pub- lication ; and it has further been divided into absolute privilege and qualified privilege — absolute if it justifies the publication, whatever may be the state of mind of the publisher ; qualified if it justifies such publication only under particular circumstances, as, for instance, when the publisher in good faith l^elieves the 424 A DIGEST OF defamatory matter to be true, when the defamatory matter actually is true, and its publication is for the public good, ikc. The law thus falls into the singular condition of a see-saw l^etween two legal fictions, Implied Malice on the one hand, and privilege absolute or qualified on the other. I will give a single instance of the intricacy to which this leads. A. writes of B. to C, " B. is a thief." Here the law implies malice from the words used. It ajDpears that B. was a servant, who had been employed by A., and was trying to get into C.'s employment, and that A.'s letter was in answer to an inquiry from C. Here the occasion of jiublication raises a qualified privilege in A. — viz., the privilege of saying to C. that B. is a thief qualified by the condition that A. really thinks that he is one, and the qualified pi'ivilege rebuts the implied malice presumed from the fact of publishing the defamatory matter. B., however, proves not only that he was not a thief, but that A. must have known it when he said that he was. This raises a presumption of express malice, or malice in fact in A., and proof of the existence of exjDress malice overturns the presumption against implied malice raised by the proof of the qualified privilege. This machinery of exjDress and implied malice and qualified and absolute privilege is only a roundabout and intricate way of saying that as a general rule it is a ci'ime to publish de- famatory matter ; that there are, however, certain exceptions to that rule by virtue of which it is not a crime to defame a man — (a) If the defamatory matter is true, and its publication is for the public good. (h) Although the defamatory matter is false, (i.) if the libeller in good faith believes it to be true, and publishes it for certain specified reasons, (ii.) Although he knows it to be false, if he publishes it in a particular character. By working out this scheme, and stating in general terms that the publication of a libel is always malicious unless it falls within one or more of the specified exceptions, the intricate fictions about malice in law and in fact, and absolute and qualified privilege, may be dispensed with. They are merely the scafiblding behind which the house was built, and now that the house is convenient and proximately complete, the scafibld may he taken down. THE CRIMINAL LAW 425 NOTE XI. (to Article 306, ox Possession ix relation to the Law of Larceny.) I do not think it would be possible to assign to the expressions " possession," " actual possession," " constructive possession," " legal possession," senses which would explain and reconcile all the passages in w^hich these phrases occur in works of authority- Some of them indeed are absolutely contradictor}^ Thus is it said that the taking in larceny must be a taking out of the pos- session of the owner. It is also said that the owner retains the legal possession notwithstanding the larceny. If both of these propositions were true, it would follow that larceny could never be committed at all. Again, we are told on the other hand that the taking in larceny must be a taking out of the posses- .sion of the ownei", the inference from which would naturally be that when a thing is out of the owner's possession it cannot be stolen. We are then told, in order to avoid this conclusion, that a thing is always in its owner's possession ; so that a box of plate at the bottom of the Thames, things of the existence of which the owner is not aware, as money vested in him as executor, and which without his knowledge is in the actual custody of another person,^ or a dead rabbit in his wood, are all in the owner's possession and cajDable of being taken out of it. This way of stating the matter makes the assertion that the taking in larceny must be a taking out of the owner's possession insignificant. If, from the nature of the case, every taking must Ije a taking out of the possession of the owner, it is impossible to see how the takings which do, differ from those which do not, constitute larceny. All men being mortal, it is useless to define an Englishman as a mortal man living in England. However, though it is impossible either to justify the manner in which the word " possession " is used, or to free it entirely from the fictions with which it has been connected, it is, I think, not impossible to define it in such a manner as to express all the ^ A. put 900 guineas in a secret drawer in a bureau and died. B. , her son and executor, lent the bureau to his brother C. , who took it to India, kept it there for several j-ears, and brought it back. B. then sold it to D. , who gave it to E. to repair, who found the money. This was hekl to be such a taking by E. out of the possession of A. as to constitute larceny. Cartwrujht v. Green, 1803, 8 Ves. 405. 426 A DIGEST OF distinctions which it is intended to mark in language differing very slightly, if at all, from that which has generally been used upon the subject. As I have shown in the articles on theft, and in the notes upon them, there are five different ways in which theft can be committed, viz. : — 1. By taking and carrying away goods which do not belong to the thief from any place where they happen to be. 2. By converting property intrusted by the owner to a servant. 3. By obtaining the possession of property (as distinguished from the right of propei'ty) from the owner by fraud with intent to convert it. 4. By converting property given by the owner to the thief under a mistake. 5. By converting property bailed to the thief. It will be found upon consideration that the distinctions between these cases all arise out of the doctrine of possession, but it is, I think, less generally perceived that the important point is not the taking out of the possession of the owner, but the taking into the possession of the thief. The five cases in question may be thus arranged : — In No. 1 (common larceny) the thief has neither the possession nor the custody of the stolen property at the time when the theft is committed, and it is immaterial whether the owner has it or not. In No. 2 (larceny by a servant) the thief at the time of his offence may have either the custody or the possession. If he has the custody his offence is theft. If he has the possession his offence is embezzlement. In No. .3 (larceny by trick) the thief obtains the possession by a mistake, caused by his own fraud. In No. 4 (larceny by taking advantage of a mistake) the thief receives the possession by a mistake not caused by his own fraud. In No. 5 (lai'ceny by a bailiff) the thief receives the possession under a contract of bailment. Besides this view of the subject, the doctrine of possession is important in relation to procedure, and in that case the matter to be considered is not the possession of the thief but the possession of the owner. It is necessary in indictments for theft that the THE CRIMINAL LAW 427 ownership of the stolen property should be correctly stated, and as possession constitutes special ownership (at all events, as against a thief) it is important, with a view to this subject, to understand what possession implies. Passing from the law upon this subject, let us examine the facts to which the law applies — the different relations which, as a fact, exist between men and things — in reference to the common use of language. The most obvious case of possession is that of a person who holds something in his hand. But it must appear upon the slightest consideration that neither this nor any other physical act whatever can be accepted as more than an outward symbol of the state of things which the word denotes. Unless the article possessed is very small, part of it only can be held in the hand, trodden on by the foot, or so dealt with by any other part of the possessor's body as to exclude a similar dealing with it by others. It would however, I think, be felt by every one that neither .actual bodily contact with an object, nor even exclusive bodily contact with it, was essential to what, in the common use of language, is meant by possession. No one would think of using different words to express the relation of a man to a coin clenched in his fist, to a pocketbook in his pocket, to a portmanteau of which he carried one end and a railway porter the other, to a carriage in which he was seated whilst his servant was driving it, to a book on the shelves of his library, and to the plate in his pantry under the charge of his butler. He would, in the conmion use of language, be said to be in possession of all these things, and no one would feel any difficulty in perceiving the correctness of the expression even if it were added that he was not the owner of any one of them, that some had been lent, and others let to hire to him. On the other hand, any one but a lawyer would be surprised at the assertion that a man, whether the owner or not, was in possession of a watch which he had dropped into the Thames, of sheep which had been stolen from his field and driven to a distance by the thief, of a dead grouse which, having been wounded at a distance from his moor, had managed to reach it and die there without his knowledge or that of any other person. The common feature of all the cases to which the word " possession " would obviously be applicable is easily recognised. 428 A DIGEST OF It is to be found in the fact that the person called the possessor has in each instance the power to act as if he were the owner of the thing possessed, whether he actually is the owner or not. Several of the illustrations given, however, show that though this is one of the things which the word conveys, it is not the only thing conveyed by it. The butler in charge of the plate, the porter helping to carry the portmanteau, the coachman who is driving the coach, have the physical power of acting as the owner of those things as much as their master or employer. Indeed, in two of the three cases their physical control over the object is more dii'ect than his. The difiference is that the circumstances are such as to raise a presumption that their intention is to act under the orders of their superior, and that he (at least for the present) has no definite superior whose orders he intends to obey. Take, for instance, the case of a dinner party : there is no visible difference between the master of the house and his guests ; each uses the article which he i*equires for the moment, and they are, from time to time, removed from place to place by the servants ; as, however, the master retains throughout not merely the legal right to dispose of them absolutely, but the immediate means of enforcing that right if from any strange circumstance it should become necessary to do so, the assertion that the plate is in his possession, and that his guests and servants have merely a permission to use it under his control, has a plain meaning : nor would that meaning be altered or obscured if the fact were added that the plate did not belong to the master of the house, but was hired by him for the occasion. Indeed, if he had stolen the plate, or received it knowing it to be stolen, the fact denoted by the word '" possession " would remain. These illustrations, which might be multiplied to any extent, appear to me to show clearly that possession means, in the common use of language, a power to act as the owner of a thing, coupled with a presumable intention to do so in case of need ; and that the custody of a servant, or person, in a similar position, does not exclude the possession by another, but differs from it in the presumable intention of the custodian to act under the orders of the possessor with reference to the thing possessed, and to give it up to him if he requires it. Thus far, I think, my definitions correspond with the common vise of language, though of course popular language upon such a THE CRIMINAL LAW 429 subject is not, nor is there any reason why it should he, minutely exact. ^ I will now compare it with the way in which the w(jrd is used by legal authorities. I know of no set dissertations on the subject of the use of the word " possession " in English law like those which are to be found in abundance upon the corresponding word in Roman law. It would Ije an endless and a useless labour to go through the cases in which the word has been used — endless on account of their great number, useless because it is the charac- teristic of English judges to care little for technical niceties of language in comparison with substantial clearness of statement in reference to the actual matter in hand. Upon such a matter as this, accordingly, it is better to consider the different authorities in groups than individually. Possession (in reference to the subject of theft) is usually divided into two branches — actual possession and constructive possession. It seems to have been pretty generally assumed that the words "actual possession" were sufficiently plain for practical purposes without further explanation ; Ijut it would be easy to show, by a multitude of cases, that actual possession differs from possession as I have defined it only in one point. It is usual to say that a thing in the possession of a servant on account of his master is only con- structively in the possession of the master. But the expression " constructive possession " has another meaning besides this. As it was considered necessary that a thing stolen should be taken out of the possession of the owner, and as in very many instances goods are stolen which are not in any natural sense in the possession of any one whatever, it has become a maxim that goods are always in the possession of the owner ; if not in his actual, then in his constructive possession, or, as it is sometimes called, in his legal possession. Thus, constructive possession means : — 1. The possession of goods in the custody of a servant on account of his master, and 2. The purely fictitious possession which the owner of goods ^ This view was suggested by a studj- of Savigny's Recht des B.esitzes, which, however, deals with manj^ topics to which nothing in English law corresponds. Mr. George Long's article on "Possessio"' in tlie Dictionary of Greek and Roman Antiquities contains the substance of Savigny in a very convenient form. Mr. Hunter's Roman Law, pp. ]9')-222, may also be consulted. 430 A DIGEST OF is supposed to have, although they are in reaHty possessed by no one at all. The phrase thus appears to me to be objectionable, not only because it is ambiguous, but because, in the first of its two senses, it conceals a truth, whilst in the second it needlessly conveys a false impression. The truth concealed is that a man may have, and may intend to use, the power implied in the word "possession," although he acts through a servant. The false impression con- veyed is that things cannot be out of possession, or that if they are they cannot be stolen. I avoid this by abstaining altogether from the use of the ex- pression " constructive possession." In "possession" I include that which has to be exercised through a servant, and my language implies that a person may commit theft on objects which are not in the possession of any one at the time of the theft. The existing law may by these means be expressed in well-recognised and established phraseology, without any resort to legal fictions. The point upon which the most subtle questions as to possession arise is the distinction between theft and embezzle- ment — a perfectly useless distinction, no doubt, and one which the legislature has on two separate occasions vainly tried to abolish. So long, however, as it is allowed to exist, it is necessary to understand it. I have already explained how a man may retain the possession of a thing of which he gives his servant the custody. He retains a power over the thing which is not the less real or efiective because he has to exercise it through the will of another person, who has undertaken to be the instrument of his will. Suppose, however, that instead of the master's having given his horse to his groom or his plate to his butler, a horsedealer has delivered the horse to the groom, or a silversmith has delivered plate to the butler for his master : I should have thought that there was no real difierence between these cases ; that inasmuch as the servant in each case was acting for the master in the discharge of a duty towards him, and under an agreement to execute his orders, the master would come into possession of the horse or the plate as soon as his servant received it from the dealer or the silversmith, just as he remains in possession of the horse or the plate when he gives the custody of it to his groom or his butler. I should also have thought that the servant who THE CRIMINAL LAW 431 appropriated his master's property to his own use, after receiving it from another on his master's account, was for all purposes in precisely the same position as the servant who did the same thing after receiving it from his master. The Courts, however, decided otherwise. They have held on many occasions that, though the master's possession continues when he gives the custody of a thing to his servant, it does not begin when the servant I'eceives anything on account of his master ; on the contrary, the servant has the possession, as distinguished from the custody, until he does some act which vests the possession in his master, though it may leave the custody in himself. If during that interval he appropriates the thing, he commits embezzlement. If' afterwards, theft. The most pointed illus- tration of this singular doctrine which can be given occurs in the case of R. v. Reed 1854 ; D. and P. 256. B. sent A., his servant, with a cart to fetch coals. A. put the coals into the cart, and on the way home sold some of them and kept the money. A. was convicted of larceny, and the question was whether he ought to have been convicted of embezzlement. It was held that the conviction was right, because, though A. had the custody of the cart all along, yet the possession of it and its contents was in B., and though A. had the possession of the coals whilst he was carrying them to the cart, that possession was reduced to a mere custody when they were deposited in the cart, so that A.'s offence was larceny, and not embezzlement, which it would have been if he had misappropriated the coals before they were put into the cart. These explanations will, I hope, render the article in the Digest intelligible. In order to justify it legally, it is necessary to state the manner in which I arrived at it. I examined a large number of cases, of which I have put eleven in the form of illustrations to the article. In some of these cases it was decided that the offence was theft ; in others, that the offence was embezzlement. I have assumed (as I was entitled to do, as appears from the explanations given above) that whenever an offence was held to be theft the property stolen was in the possession of the owner or master, although it might be in the custody of a guest or servant ; and that whenever the offence was held to be embezzlement the property embezzled was in the possession, as distinguished from the custody, of the servant. I might easily have enlarged the number of illustrations to any 432 A DIGEST OF THE CRIMINAL LAW conceivable extent ; but if those given are not enough to make the matter plain, I despair of making it plain or understanding- it, and I do not wish to make it darker than it is. It is, per- haps, just worth while to add once more that I am in this work merely stating, and not attempting to justify, the law. The technicalities on this subject appear to me to be altogether superfluous, and I think they might be easily dispensed with by re-defining the offence of theft, or even by removing the distinction between theft, embezzlement, and false pretences. TABLE OF INDICTABLE OFFENCES 433 O O O CO 1^ OJ ^ rt ,^ _ C3 C5 H ^ ^ :2; pa =y O s <: ^ .^ -^ ■? 5 s C 3 35 » *j c3 3 3 i '^ «- 64- «- ^ ^ o o o 5= S S P o ^ '?0 j: i) -^ --*- .■^2, J -2 2'" >^3 c = ^ X - o: ."iW O — ' o O -^ •> F F 434 TABLE OF INDICTABLE OFFENCES r (D ceo C O CJ O) !2;>H !^ •— 'M IC K K K ^ a. M a: f^ fe fe fePhfe feP^ "c § iB o : 5 c ^ R o o a5 c O £ g 1 yts 1. 2 g trai ■J. >-l • X a >. >i o c ,- a> pj^ t^ *- ^ I "» •^ .— *T r^ PL^ £ o ^' " 'x X X X X X 'X X P-i Pu ^ -^ - ^ - ^^ c c -^ « =!S o =r =a , a ^ "3 ^ - ,:; CC ~ ? ^ 5 ■" S? d ""w rU m , — ^ E -*-> ^ iB 2 ^;S ■= 'S "a i2 >, '- ■^ 5 o o 5 ci .-^ c ^ o " p 5^ ? u)3 bpc >-.>:>% y. ;t ^: = = ^ tc C ~ '£ ~ 9 s 3't:'-3pS> ci'H-H^'-^'^.S TABLE OF INDICTABLE OF FENCES 435 CO -t lO Lo Tj* CO "+ I- 02 >o »0 •<* Ol c- CC r^ 2 CO ci o O O O O 1-- 1- o c; v. cr o V !» t- o 00 -. CI n\ f>\ o] cc 01 01 01 ■—1 Jjcoeo CO CO t^ CO m ■J :^ ■Ji u m a OJ a o 01 a » o a< o aj a O 0, c a a; « c 0) (B K^ > kH pH ;> >H pH fx >( ^ >-i ^^^ ^ i>- >i >^ >H >H >< "■ >» : ^^ ^ ". oj cr « OJ i- c s aj s ,^ aj ■J. ' E . oi ^ oi ^f^ lo? o O 01 __ l^ cS ;ir o ^- >^ ^ ^ ^" c^ ^ ^5 .:: ^ O ^ " EC > 33 j"' S . K ^cc |c£ a^a Ph 02 e.Ja: "I O J5 S. |^_ ^ : ^ o hH Ph H^ pj oi Pm i^ 1— 1 I— Ph h^ r— Pf t— 1 h- ( 1— HW hH I- a OC 1^ t- oi o oi c; ^^ 10) c<- fC "* -t O " rfi 00 ^ ^ '^ c: -*' X a- X aj y a; cr. a: cc aj . Ol i;;^ o: — CO ^ — rt C ^ ^^ ^ "■ a^ a" aj 7? a aj 02 o o Tf CO ^ *^ •"H ^^ o o; »^ c*t 01 Ol (^ o o d o •0 CO »0 5; -* . o ^^ o O O j_ > Ol p:fc^ oi=«^ > 01 > 33 V. 47 V. 33 V. =a ^ Ol ^ =« 5 ■=y LO =y =« =tj 0^ OJ q:; o j:; -^ ^ ffl o ^ 'e. o r', o tu CJ .^ 0) 'T O a; G a2 - o -< j; -H - o -7* "S o a; - o c; _ ^ r; - o o rt ~ o ^ 2 s ii rt ■ . &5 O goo -- ce vf, o sn-:^ s ^ c? u p; i:; 5c ^ cq aq F F 2 436 TABLE OF INDICTABLE OFFENCES ^^ o" •— CO I- fC c; c; -h CO c^ a; -J ■— r^ o aC' CC CO c CO CO ^''Z CI ^ c- Ol CO fC CO <— 1 — 1 p^3 -i-:* ■4-J rt v: ^ o rt';? S^ ii o "^ ^ cf rj y y M a- m to ^ n c C c c OJ H t^ ^ ►^ t>i > >^ >1 C ^ s- C o5 ^ ^ bO g cc -t'^ ?: £ 'r^ ^ ^ > S OJ r*i •" i ^i HJ tH Ol -^ s 1-- o ^ o ^ f-H rv c ^ ir; C+> Cf( SD p-l X QJ o o o c/: m 0. J :/: s s 0) !U p^ PR h^ Ph P^" fe h^ hH (^ PhPh C-l , ic P_( t^ 1 t- 01 .i5 m c 2 5' l-H rt 02 02 1 o t a COtO "5 . ~ C CO c ^ 10 o C" o d " ■"^"rt o cj c • d t: :-. > ^ ^^ ^ s ^, S - -^ O cS c K* t> c c^ C3 > CO o- J ^ h-! 1— ^ hJl. cy ^ =y •^ ^Ol c; o c C " S 0) C [i, c § cc r-H \n A Q> r-; "-^ en .2 hH ■3 s '3 o l-H ^2 'cS "u ft "3 3 s c* O bi: o r^-\ '^ O s ^ 'p S -*-* ci Q (U _o '3 V i 1 CO 1 S 5 .-^ (U "o O '^ :; o 5 's g cs a o 02 ce i S OJ -1^ fS 1 0: 1 1 ■i o 0) ID ^ ?^ Pm Plh' p^ -. . S IT . T i . 33 '^ o X Oh Ph gSti ^5e JZ2 =, X 7L. 'J~ P^^ -• 'v' CO T)< IC f^ lii p^ d^ .: •^ r) -M 0) 0) Tl o -^ o p o o Oi -« s hU S pS t) ^3 « ° o p .S ° ?c ^ SP^ ■3 .2 '=0 o -5 ^ "s 's -S .2 tfi.S o <; ^^ ^S to S s; o ^ O 9 &D ■^ ^ - =c - (D > O S O s ^ S '-' S 5^3 J2 jS -fJ S t*H ^ TABLE OF INDICTABLE OFFENCES t*.^' ° s CO « O i-t' -o ,—t I- o 01 -* >o (— t o o CO cc o O O O >-t o cc -o 01 o C5 t-H I- r- O CO cc fc CO ic C-l CO r—H ^H f— 1 «— ' (Ss CO ^o- tx a> o >^ ^ !2; ^^^ 01 ^- o _. ^ ^ p^ - !=^ o .2 .3 ^ cc ~ ri^ fj,, cc cc oj 03 a Sfe P^ tn o --^ M . cc rj ^ 2 9 2 o o s c /=; i '3 .s p -5 '3 t^ o s<5 =_ 3 o o 2 TABLE OF INDICTABLE OFFENCES 439 —1 (M «C CO to CO >^ >^ o I o p^ to r-^ ^ rt ctf ^ -D O rj2 ;=^ .s CO " o 6 O-l •" o CO -~~- o o o §'n" c:! so O ^ ■S ? fl^ Q = W S c3 CO 3 o S 1 -^ a> 1 o o CO CO •5 :s i03 SU i) •^ ■ ~' •:- «5 -?^S :-; ;^ *5 2 b ^ ^ 1 0) o o z •^ p- 1) a SP C>3 S^ ^.n -- o o c3 ^ fc^ ,-> V CO ^i O O Q q d q q ^ TABLE OF INDICTABLE OFFENCES PhS -L CI t>^ cu o ^1^ >H >-l O 7j o to ;j cc aj ?i O :^ 1-^ S 5 ic 1^ = ^ Ul a 5^ a2 si Ph P-i P4 f^ s fM' CO fO : cc ci d cc !M o 1- SI CM cc cc O ir. -*' .2 to o5 03 ai 1 aj M aj m C) «j ^' ^ 02 CQ 'T\ O CO '•^ ^ r^ "5 . LI tr; O ^ CO 0-. d CO o 6 d ^ s 6 6 \> c5 > CO o C) CO c H 11 CM fe fe ftifl i <5 ft fil ^r^ fil S 2 5 S 2 ^ : ao o -tJ >l *.S ^ £2 ,o O ^ '> 4^ o p g ,^ c ^ ^ '^ .5 _:q OJ *-i ; : ."S ^ = : a^ O S SC >» J ^ 1 JO : ^' to ^ s (2 a o 5 : '^ .5 P 5 S o , :;: ;: ;; 3 O \ o ' 's g c3 i" "3 i o 2 o «^ >~ .S P J ^ 03 j2 ;_, * 0) r^ Oj o +3 S 0) p o c I ^ i s' ° ;^ >5 m t> -^ > 1 CO ^ •<*. m C 5 ^ 2 •§ '^ .2 PTo;. o p ? 3 %~ ^ 1 J c3 a ! c ^ 1 1 ;:-4 CD > .2 So CD "S to ^ C JO S 'EI c CG CO "53 C '5° 1 o : o e J ^ J o is ■^ 1 TABLE OF IX Die TABLE OFFENCES 441 cc CO w fC Tl -f CC -t I- c c c c :2;;5;2; o c c o o c o o c o c c c c 12; ;?; 12; 12; ;?; ^ ^ ^ =y X X 2 "^ ^ x x n4 - ' Th ;c 1- X C^ aj T. v. 10 M oi a: ■n ,^ .^ =c Lt O ;m — C-l !M !M tc io a; tt to 03 02 a^ M 32 a^ p^p^^fI:, li,fciEi, fc.. S:, fc,pi,fcL,fefc,pI, inf!-. fiifcHCt-:fi, 03 r ai r «4-l ^ <4-l "^ ^^ "^ ^ .„ ^ ,„ ._ aiwai aiz/2 cc x" itd x x x ^ S-^ ^ ■j: f~ 3C' =y o £ 5 S^ 50 t^j ^ ^i r-; ;^ O;, <; _ ?--W i S-"^ d • ^ "-I .^ =y ■ — tJO - a; £ -t^' S i; :s HP^ '^ s rt s s c "■ i-'-^ . c w> of S aT-S a3 r; cj ^ •S •" 0) 'o I- «> CD o '- -^ .2 -^ >> c M ^ '5 s o r; o ^ , -t^ "^ o rt OJ m ■'r-. -t:s Z' 0/ ^ ^ c3 <: Sf) O C C o <2 cS S "o "o "o .5 iC 2 «-- c^ m 2 ^ CJ c -^ !» ? ^ r- ^ .H. O ^ ^ ^ ^ "C a3 O 5 ^ S To'-^ O , aj QJ . c: O O O O O 'C 442 TABLE OF INDICTABLE OFFENCES « O C5 C5 O Ci Ci •: oi CO !:n c^i 5-1 o\ 25 fO fO 00 CO IC cc &©■ ^^;?;^ ^^^ 12; ;^; 1^ 1^;:?; )^ )^ >^ ^ ;^ ;-^ I-- ' — ' t- o o- S FL| xri'Sizfiw. aj^ e^ Ps P^ pL| Ph PnP^hH ' (m' .« w O Tt< t^ ,-^ -* - ^- GC tM . CO a3 ^' "5 30 03 „ CO 03 „co I- CO ^^ ^1 i" 00 CI '-^ cj d ^ i^s CO Tf *^ >>-^ ■z^^s 1 CO CI ^ ^ ^ CO O t^ CO rM CO '-'' ^" C^' Ph l-tH PHfeS a; 'J: m cc m m •s C5 1 d r^ =y 01 ;_, .„■ -^ m o t2 o 2 ^ !^ ■ -s rn OO S iH '-' ■ S^ S ^. ^^ a aj -t< - ,=y .• ■=« CO 5^21=? .3 .3 ^ Ph f^ P3 O ^ '-3 3 -e ^ ^ 2 '♦-1 ni * .a s ■^ o o <^^> '-^ o ;3 i ^ S»5 O c^ a! ''i 0) m +3 'ci n) -tJ 3 S -IJ CO CO CO ^ -ij r^ rT^ ^ r^ ^ bn O a r^ F-H „ I =* ^ - b' H .S S O fl ^ s CD s to hp ID S S .2 2 MS TABLE OF IXDIC TABLE OFFENCES 443 >* v^ A Cm Ch = 2 o^ O 2 -• 03 . !2-'-^ ^ q:: ^ > « s ■[: iH iz; -• o i-" "M )aft con . o o ^i — ■ _~ J ^" '^ o o o o . -f' > o J5 3 '-C s o .2 o ;^ H h- 1 ;^ HH -^ o o o «j LO „ o o Ci a: f^- § s S : 2 ^ riij ^ rt cs ^ -- 7^ -^ tc 2 S O r^ ;= o ■," M fel t^ a O ^ — '" 3 ."tn _ imit lOUS blac O .t; _- " o ^ ^ ►^ is ;2 ^-j - u o OJ CS SO r; ■s •-I M-l -u ;m 0) ^ OJ "" =« SO ^-^ .3 ;3 ^ o ^ ^ so S so s = :3 £P ^ 9 M S S t« -3 " _ o 6j) ai _4 3 5 2 a .2 ^ 'S - ■S ^ ^ eg O .2 .3 -3 3 ?: .3 c^J S "^ fo3 ^ o .t; o 3 .1^ -3 '2 .3 - ^ rt - — ? o ^ ° I i I r^ tr. 50 ^ •S ^ ^ " >^ K^ K^ K^ K to |2; 12; !2i >H >H ■-^ O (U r*. 41 -■ ra j:; ^ .-H o i^ S > 2 - Ol O in o 01 o ^o = S -C5 fe" 01 01 2i fe fe ^ ^ ,«>; m Tfi zr^ ^1 m ^ t^ fe piH S Em &0 S P2 ?; Ml S rS S a> o 'ij o o P2 +j s bO 2 ■". >i « — =w ^ o 'j- « a^ o =^ cS OJ ,^3 _- - 4i "^ rw s * ■ ni ^ s so o ce ^^ tU ^D " S 'S -- '■^ dog after p. sessing stole ing a rewa 'S so p o tn S -^ ■^ oj ^^ .rt ;^ ^^ ibS^ ^ 1:^; O O -U !h « ° ° ^ 0) rS 772 t:* W 0) OJ _• ., •. o CO i^ (V) rs -2 ci 2^ ci X " -^ '^ " ^^ o m "o "o "c 'o o TABLE OF INDICTABLE OFFENCES 445 r? c^ -^ O) z: ~ c; O tM 5) C-) fO 5i 55 5i ci 5i 5i "m ^ c; o o >^ ~ ;s X X TC " Jt •» -M —1 >^ 00 CO ro 50 w cc o 0) a> o >^ >H >H >-i CO 02 w CO en o o o o o K^ P^ K^ K^ 1^ 0)000 >H >i !?; 12; >- ^ :^ . 12;^ L- _ O '-< ph" P-" fi; p; ^1^ Sec Pn § 1 ° ! - ° "Z, -■ 1 d d 6 K* 1 t-* K> ^ cc =y =« ^ =y ro fe > 5L,fi, f^fi,p^5^ fefepi-fepLi fi,;^, feth^^.< o 'Ji m c; r— I -u ? Ji o X « ^ - te ■J r- O £ 2 ' ■^ a '^ c- • - ^ ^ o 2 '^'o S O P --H 3 d- o ^ (D O c5 >■ o ce.= ;:-2 5^ ^^ -S M O > *- -^ ^ O , rn ^^ o -<-> -^ 2 "*" Is O U) cj ^ « -w ^ ^' Ti +^ f ^ ^ ^ ■I. 15 ^ S z ° ?? ip.S ^^ ? r: O o ^ S -^ s ■", o ^ r- J^ bD 2-1 rt > - U-< Ul >> a; Oi a: w — O t^ -o ? >. - O O O r^ ,^ ? ^ t: ■:; -=. ^' s = so O i; .3 aJ •" '3 2 so S o S oi IK ^ O 60.3 o '^ — ^ ^ ;3 * n O ,:= O X ^ &. &D O -3 !» 446 TABLE OF IX Die TABLE OFFENCEH \ ^^ 1 ° s c tC ZZ iZ -^ -^ o --r CS -* -t- -f i': o >^ 1 >-0 ^ 1 '0 1 C C: 01 01 h^ 1 ■>! •>] •>! Ol -M C^l ^1 51 'M 01 'M 01 Ol 01 Ol ~ 1^ t, ^ \ G'l H SI Ol C^l 'M 'M (M 'M Ol (M Ol Ol 01 G^l -< CO CO CO CO CO CO "^ ■§»• ^g ■=>•» a g •r* Qj ■*3oC! Ms ■ss 3 32 a} a as a: cc a; 03 J3 73 0- 73 83 7! O: c 33 _ X 35 O! 33 * 3 c ; ai o (u O O QJ O D OJ O Oi 03 <» CJ t> b o D O OJ H >H >H >^ pH >-i >- >-( >H |>H >1 >H >H >-i- >• >- > > !2; > >H >^ >H t c X : c /- C a; ' p >-- p ' > i^ >• : o s J |-£^ 1 01 P- C" • t«*- -33 - ^ 03 in O! .^ .t ce ^ %. - CS ^ '^ - c^ 2 '^^ .- § c ; o ^ ." C A - ^ ; ;— t^ ^ -ij ^ Ph a 1 ' " ' ll^ \lt'^ O "g :cz; «} a; cc E P=l l-H HH HH'^ >^ f^ H^ ?L| P-l PL| Ph 1 .- • . i, : ^ ! — - - — ^ 01 01 *— • — ' a: a. 73 a a; 33 *o 2 t^ o !M — cc 1 - i": •_ I- X' ct ' — ^ t .. O c: — :M cc re r^ — - ^- ^ 01 01 t^ "5 . 1^ '^ — 1 0-) Ol (M 'M -.1 fC f< ^ CO CO CO c : CO -"- >^'S a. M to a: '/' -J. w M a' J, a 73 73 a 82 ^* »C S; > o' n 01 ■p !>■ =y ^ cc ^C -+ m o 1 01 fe «^ S fi; § s s § s ^ § §■ s' § s § S "p. t" f^■ pl; fL," 5l; 1 -i j d : — ' o : '-^ '^ : io r ■ p ^ : '^ =^ I q3 c s ^ 'c iC . CJ =y =<: • O r- s *^ '^ ^ § A > ;- ■i ffence. o p. H o o a; w cS be _C "->3 S OJ o ! "^ '5 ,^-' c p s „ C4-I 'S .£ 1 1 f '^ 1 t ■| X c: o 5 _c 2 g !C g 5 t5 5 « 1 1 il '^ -5 .2 -:2 r -!f 1 S S.C 2 5 S 5 ^ •= - = ^ i 1 i 1 1 1 S •- Jr S S ai 73 .2 5 2 73 -^ fcjC £ '-2 ■— -- O 03 " ^ -xt : S c ,c s 0^-5 -2 " ^ ce ^ 5P 5P i£ •- M £ £ O t^ a; -= s 1 ►5 ^ X ^ p - 5 iC " 2 X S ^ T P c; 2 s -^ S s^ - 'o X .P « w K « a) M S .S -►^ ■> 'c o o ;;- o 9 _^ ^ ^ rS -t^ a: "f t2, J .5 -P c c=^ ^ ^ P X O .i "S ^^ ^ "S c ^ ^ C ^ f— * o "^ _ V c c COCO !^ r^H P s tc ■^ X' -f-i r^ '^ S ^ ^ ^ c r^ Ph • ^ <^ ->-• -^ -ti -ij — > +-> ^ e s 1^ ""^ "^ TABLE OF IXDICTABLE OFFEXCES 447 O O O i-H ^ ffl '^ 1^ I , O I- 1^ « t-- M re fc cc CO CO 51: ^ — >5 1^ ^ ^ J Ph' p.; p4p^ ^- S 1 If I P^ S hH M X X X 5.x pH pH Ph HH Ph — -4= cL, i X 0) ^ O ^ ^ "1 ?^ o S 'i S (M _' '^ S S -i iC --^^-cn- o ^ P^ ^5 £ CC X K K' Ct 7; 01' pi^fi'pR&ipR^^ S pR fii Ph Ph § 1^ S to ^ tfi '* -^ « £ « .2 <1 r- IS to "5 f^ 11 a> -S O 't^ P ^ +J — 1 "^ sW o ^ 7. c -, -►^ rt -w >^ P:^ .5 O C O -^ V s: -' S,P3 ^ rr te s ^ 448 TABLE OF IXDICTABLE OFFEXCES Ph2 05 !> CI " cc ec C5 3= G2 " ;^ '.2 rl c ^• Ci CO -11 ^-2 Whet CO o O O O OJ O si o -' _ a> 03 ,; . ~ o . . 05 '^ S CO to (M O A ■5 02 OQ 5, .5 5 2 S S^rJ =a =s o to' i; ►> 1^ (M J L-5 ;5 -J I-* (M '^ . Cdg =«> O -^4 "^ '■^ M CO CC ^ s^s^ .5 '^ KH l-H h-l §§ s ° e .5 8 5* to ~- CO — J =S .S .2 0) " o 'o -Z O ^ bo iO ■5 's 'S 3 i i.§^~' cS --.5 3 ^ n 3 c ? o o o ^ ^ ^ -^ '43 ! -S 3 • i; ^ O ?!; I3 S 3^ O S M TABLE OF INDWTAllLE OFFENCES 449 -H ri^ ^ o o o o o c c 'A '/a 'a )^ !^|2;!2; O CO) ^ ;^ !2i 52i ^ ^^ ■ ^ ^, -H rt rM C-i re pR Ph -^ §s 05 Jg ac ^ "• . GC CO 6 ^>> - - O 00 ^ ^ C-l fC »« ! I. S S c3 3 o of r^ ^r ,1^ O ^ o •^ o ^'^ crt r1 n — . o o ^' O ■n m t>r=« j2 • ^ n _5i 'V -r to "o p" .S -z? •5 ^ S js a, Q^ ft. C! (J 450 TABLE OF INDICTABLE OFFENCES — I X OO O) o- > <0 -j: -^ S ■: ;; :i '-C -1^ o o ^ t:i o -^ m ^ m i s^ s > s § g > > ft ^ > a^ r -*-^ ft o g rt o o bC o O c 0) S 4, "t^ O) IE rt r; OJ bD cc >, Sh 03 S oj o o o -H ft _ -f T "c 2 '^ -s '^ o -^ '"' o . PM S p^ £ >H Mm a! m I I =JS fs;;v;pL;pL; fi;§ ^^s 0) O boxP bp-g o) tj n 5j _r "^ cc *S *i ^ p; r-- -2 — 2 £ ^ o -z tj — 1 ^ rS O -i o -^ "-* ;^ ^=^ 5° «^ rrl n-. O-S 2 0) 0) C/J a^ bJO S JS S O -iJ £ s\S so TABLE OF IX Die TABLE OFFENCES 451 -H >.0 O » t-- I-^ >-0 lO (M CC (M fC 1— I rt CC cc O'^H >• >■ in m oi a: en V a> 0) o 1^ 1^ 1^ ^ « 05 O O a> oj <>' -S .CI I— I j_^ o ^ iO ^ '^ I-H pl-i HH T*4 — 1 «3 02 oi 6 o > >> =be CO LO -* a P^ =y 05 fe o: 02 ^ ^ ^ A ^o iC 00 w 02 CO o5 o; ^; 03 ^ aj »- ^ o ^ o C5 «J l^ o t^ O' <— 1 ^c: ■— 1 O ^^ ^^ ^P:* ^ LO CO oi M l!-5 i!H ^^ c « .3 01 d3 ^^^p^ f^fe^?5 ^ O)' -i-> p^ feO +i m r^ D a "8 tD O 1 1 O 1 tD ^ ^ rr ^ ^■§1 :^0 2, '^ t~» -3 '>:■ ?e a, a. 3 s '- o -S ''zT oi "$• 02 (^ !V ^ S P I I ^Sh 5 ifl.3 - . o -r* o "^ ^ "7? -'^ W .V Ph_5 o> PLH bo o o c ^ 2 ^ p OJ ^f PI III y to SC.3 5 ,5 'q ?, ;:3 ? S O 4) 2h ^3 452 TABLE OF INDICTABLE OFFENCES o o CI Ol m CO 0) < 02 W. OJ c* .2 r^ 03 O ■^ ^ ;§s CqS ^ cc C-l ?1 "l-o ^^" -I =y ■^ pR CC 2 5^ .3 ce . Pm fe ^ ^ ^ t<-l u u ** ^ ?n a3 > S 1 c a! 5 3 o -Jl .2 > 5P 3 O g g 1 c- u '5 1 '^ f: _C !■ c a r 3 ^ to H 3 > J a: 1/ £ ■> a C" ) forging, as to birth, or burial, or giving ii'ences as to a cop o ^ .2 CO 3 g 60 o CO .2 !§ 're a) c > c c _^ o o ^ 05 §1 1 2 4J 3 01 3 ce feC^ o -T rt 01 03 n i ? D S Q r J &t^ a ) a ) 1 * ■s -^ 0) v: 1 t JD i -S^ ; 2 3 3 5| 3 'S a 4 1 ~ 1 'in C7^ •1 3 CO 3 -^ 'So a) sF p ^ 1 ^ 1 e^ fe; 5=; a; 0^ «^ "; ti; »; TABLE OF INDICTABLE OFFENCES 453 C. G5 l^ I- !■- 01 0\ C-1 t^ k-Ik^ P^ fM pR Pq ■« > "z3 >» C "3 tc'^ "^ I' J2 >; o o o) ?: ^ In Jh £C fl "^ « 'U cS hn 0) 5 .3 SD O 03 M S '-^ to ^ •* ^ m tiH ??n c 0) &i;^ •S +^ cC f^ U .1 o 454 TAJiLE OF INDICTABLE OFFENCES lO ^ o C; C5 O CO C» Ci fO CO CO >^' o o o o a; oj ci cc oi CO CO CO CO CO lO lO CO o --1 01 CO CO a> c/3 cc en QJ (D (1) lU a* ID K^ 1^ K^ K^ f^ t>i Uh t>^ D CD ;^>^ (in hH hH PH ^ p— I 30 CO -♦< -* 05 01 01 CO 0^1 r^ ic t^ t^ oi o CO o «o ■* -^ ic o ^ CO Jj -J: CO CO •^ r^^f^ t-* o -+ ^ =a ^ Ci CO CI '^ P>^ Pn Cl,^ ce • "^ § S2 g

!i| 60 OJJ c« o ai ■« .s .2 ^ IB '-I3 '+3 tp 'i^- ^ (V o ^ T' o 0) 3 2 S ^ ^ ^ N rrt rT: :P S 2 +3 2 i =: o S CO g X 'So ^ 3 ^5 +i 0) 33 '^ iC o fl CO 1/j O A =0 o 5^ '•r^ t^ 3 "2 rt .p t^-l^ ^ c y so 'S, S' to J^^S «> ^ &i to CO to ^ ° TABLE OF INDICTABLE OFFENCES 455 456 TABLE OF INDICTABLE OFFENCES o focofcfofciooo^co O CO CO ro ^ .-H —I (M (M O 'OOOOOOOOOO ooo ^^ tx 03 ■-^ (M : ■ ^ : oj . : ^ '- . X £i • MMhHp-IMt-HpH M i-< : ^ : 2i • • 2i • "^^ 5r cc ^ ^ f5~ : 'i^'^ fM • • aj ""^ ^-^ o o . y I^^S^SSf^SSf^ sss =a ft^ ^ Ph ^ o fRS >5 to O OJ 03 t- 1j " to o ^ = C^ =« -^ 03 8 S ^ r 6 % K? j^G [v^ J;-^ ^ fM o hn.. . "tr •-! (M p iDy^ O) a-3 ° c^ -2 ;^ O r— C« ^ r-* C 'S -3 .t; 8t3 a; ? n3 nl "3 g m t; ■» £ £; bC^ r 3 -S ^ ^ >i ^ "^ .2 J^ 50 " j3 ■" ■ '^ 1^ ^1 2 5-5 y 4j ii f; 0) ;j nj • ^ 5 g ^ ce -^ f.:3 'H •l.'s ° °c bn sn S , — ' 0) 0) s 's'S s . ""^ b -^ SC &D be iO bC-ii a^ ^ S ^ c e =i *=■ +e bcn a 10 'O o a C. rs o p o p g ~, '^ a Ph ft S< Eh ce i2 be to rt §"•5 •? n - "§ 's o 2 2 — "+H (D^-t^-^ i3 S m ^ ^ 4J 5 4J ^ ^- -< ^ o' • ~ r- --< ;:3 IIN^DEX H n INDEX ABANDONING, pack child under two ... ... ... ... ... ... ... 221 ABDUCTION, with intent to marry ... ... ... ... ... ... 215 of girl under sixteen ... ... ... ... ... ... 21 fj of girl under eighteen ... ... ... ... ... ... 218 ABORTION, see ''Miscarriage.'' ACCESSORY, before the fact, who is ... ... ... ... ... ."^8-36 in manslaixghter ... ... ... ... ... 190 punishment of ... ... ... ... ... 36 after the fact, who is ... ... ... ... ... ... 36 in coining ... ... ... ... ... 361 punishment of , . . . ... ... ... ... 37 ACCOUNTANT GENERAL, forging an instrument of . . . ... ... ... ... ... 334 ACCOUNTS, fraudulently destroying, altering, &c. ... ... ... ... 317 ACCUSATION OF CRIME, sending letter containing with a view to extortion ... ... 280 made with a view to extortion ... ... ... ... ... 280 made with a view to compel dealing with a valixable security 281 ADMINISTRATOR, appointment of ... ... ... ... ... ... ... 12 ADULTERATION, of food or drugs ... ... ... ... ... ... ... 147 AFFIRMATION, making a false ... ... ... ... ... ... ... 1C6 forging an, made before a justice... ... ... ... ... 338 AFFRAY 54 AGENT, commission of crimes by an innocent ... ... ... ... 30 certain frauds by ... ... ... ... ... ... 310 312 AGREEMENT NOT TO PROSECUTE 122 AIDING OR ABETTING, see various titles, in the commission of a crime ... ... ... ... ... 31 AMBASSADOR, violation of privileges of . . . ... ... ... ... ... 72 arrest or prosecution of ... ... ... ... ... ... 72 II II 2 460 INDEX ANIMALS, PAGE how far capable of being stolen ... ... ... 251, 252, 269 killing with intent to steal carcase, &c. ... ... ... ... 286 ANNUITIES, forging register, &c. , as to certain ... .. ... ... 331 APPRENTICE, not supplying necessaries for ... ... ... ... 200, 392 to the sea service, forcing on shore, leaving behind, or wrong- fully discharging ... ... ... ... ... 384, 385 taking money for binding to sea-fishing ... ... ... ... 390 ARREST, when and how and by whom lawful ... ... ... ... 158 resisting lawful ... ... ... ... ... ... ... 204 ARSENAL, wrongfully obtaining or communicating official information as to " 48, 49 settmg fire to ... ... ... ... ... ... ... 362 ARSON, of ships of war, dockyards, and their stores ... ... ... 280 of buildings... ... ... ... ... ... 304,365,367 of things in a building ... ... ... ... ... ... 368 of a church, &c. ... ... ... ... ... ... ... 364 of a dwelling-house ... ... ... ... ... ... 364 of stacks of corn, &c. ... ... ... ... ... ... 365 of crops of corn, &c. ... ... ... ... ... ... 368 of a mine ... ... ... ... ... ... ... ... 365 of a ship ... ... ... ... ... ... ... ... 365 attempts to commit ... ... ... ... ... 368, 370 threats of 280,369 ART, damaging work of ... ... ... ... ... ... ... 375 ASPORTATION, what is 246 ASSAULT, .see " Woundiwj;' definition of 202 with intent to commit piracy ... ... ... ... ... 79 consent no defence to indecent on joung person ... ... 202 with intent to commit sodomy ... ... ... ... ... 204 on person protecting wreck ... ... ... ... ... 204 causing actual bodily harm ... ... ... ... ... 204 with intent to commit felony or prevent arrest ... ... 205 on i^eace officer in execution of his duty ... ... ... 205 on officer of a workhouse ... ... ... ... ... ... 205 indecent on a female ... ... ... ... ... ... 205 on a clergyman or minister ... ... ... ... ... 205 punishment of common ... ... ... ... ... ... 206 with intent to rob ... ... ... ... ... ... 279 on gamekeeper or keeper of deer ... ... ... 376, 377 ATTEMPT, .see various titlt^, what is an . . . ... ... ... ... ... ... ... 39 to commit a crime is a misdemeanor ... ... ... ... 41 to commit murder ... ... ... ... ... ... ... 192 to choke in order to commit a crime ... ... ... ... 196 to have carnal knowledge of a girl under thirteen ... ... 209 AUTHORITY, forging an ... ... ... ... ... ... ... ••• 331 INDEX 461 B BAILEE, PAGE theft by 262 BAILMENT, defined ... ... . . ... ... ... ... ... 247 BALLOT ACT, offences against the ... ... ... ... ... ... 103 forging ballot pajjers ... ... ... ... ... ... 339 BANKERS, certain frauds by ... ... ... ... ... ... ... 310 BANK NOTE, forging 331 acts preparatory to making ... ... ... ... 339, 343 BANK OF ENGLAND (OR IRELAND), tlieft or embezzlement of bond, &c., from, by servant of ... 2S9 forging document of officer of ... ... ... ... ... 334 servant of wrongfully making out warrant of ... ... ... 337 BANKRUPTCY, abscondmg with property in contemplation of ... ... ... 379 punisliment of fraudulent debtors ... ... ... 379-383 undischarged bankrupt obtaining credit ... ... ... 383 making a false claim on a banki'upt's estate ... ... ... 383 BARRATRY 112 BASTARD, unlawfully procuring the marriage of a parent of a ... ... 135 BATTERY, see '' Assault ;' definition of ... ... ... ... ... ... ... 202 BAWDY HOUSE, wliat is a ... ... ... ... ... ... ... ... 141 punishment for keeping a ... ... ... ... ... 142 BEGGING 151, 153 BETTING HOUSE, what is a ... ... ... ... ... ... ... ... 143 punisliment for keeping a ... ... ... ... ... 141 BIGAMY, .see " il/arn'af/e," definition of ... ... ... ... ... ... ... 211 pixnishment for ... ... ... ... ... ... ... 211 principals in the second degree in ... ... ... ... 213 BILLETING, UNLAWFUL 92 BILL OF EXCHANGE, forging ... ... 331 drawing in another's name without authority ... ... ... 335 BLASPHEMY, what is 125 speaking ... ... ... ... ... ... ... ... 126 Ijlasphemous libel ... ... ... ... ... ... ... 1 26 BOOK, selling obscene ... ... ... ... ... ... ... 133 damaging ... ... ... ... ... ... ... ... 375 BREAKING OUT, of a dwelling house ... ... ... ... ... ... 284 of a church ... ... ... ... ... ... ... 283 BRIBERY, .see '' C&rruption," definition ... ... ... ... ... ... ... ... 100 puiushment of ... ... ... ... ... ... ... 102 462 INDEX BRIDGE, I'AGE nuisance to ... ... ... ... .-■ ••■ •■■ 149 pulling down or causing damage to ... ... ... ... 366 BROKERS, certain frauds b}^ ... ... ... ... ... ... ... 310 BROTHEL, procuring women to enter ... ... ... ... ... 137 keeping a bawdy house ... ... ... ... ... 1-11, 142 detaining a woman in ... ... ... ... ... ... 218 BUOCIERY, see ''Sodomy." BUILDING, stealing fixtures from ... ... ... ... ... ... 293 setting fire to ... ... ... ... ... ... 36.i, 367 things in a ... ... ... ... ... ... 368 attempting the foregoing ... ... ... ... ... ... 368 tenant pulling down ... ... ... ... ... ... 373 BULL, stealing or killing with intent to steal carcase of ... ... 289 BUOY, damaging ... ... ... ... ... ... ... ... 272 BURGLARY, definition of and punishment for... ... ... ... ... 283 ' ' lireak " definition of ... ... ... ... ... ... 283 " enter " definition of ... ... ... ... ... ... 284 committing felony and breaking out by night is ... 283, 284 BURIAL, preventing of dead bodies ... ... ... ... ... 138 BURIAL GROUND, stealing metal fixtures from ... ... ... ... ... 293 CALF, stealing or killing with intent to steal carcase of ... ... 289 CANAL, causing damage to works of ... ... ... ... ... 366 opening the sluice of, to obstruct... ... ... ... ... 371 CARNAL KNOWLEDGE, definition of ... ... ... ... .-. ••■ ••■ 207 procuring unlawful ... ... ... ... ... ... 135 suffering girls to resort to premises for the purpose of unlawful 136 having or attempting to have of girl under thirteen ... ... 209 of girl between thirteen and sixteen ... ... ... ... 209 of female idiot ... ... ... ... ... .•• ••• 210 of lunatic by attendant in an asylum, &c. ... ... ... 225 CATTLE, killing with intent to steal carcase of ... ... ... ... 289 wounding ... ... ... ... ... ••. •■• ■■• 369 CHALLENGE, SENDING 54 CHAMPERTY" 112 CHANCERY^ COURT OF, forging a document of ... ... ... ... • ■ • • • • 334 CHEATING, 307 at play 303 INDEX 463 PAGE CHEQUE, when drawing a , may be a false pretence ... ... ... 299 forging a 332 CHILD, act ))y under seven not criminal ... ... ... ... 20 act by, between seven and fourteen, when criminal ... ... 20 concealing birth of ... ... ... ... J94 stealing under fourteen ... ... ... ... . 219 parent not providing necessaries for ... ... ... 220 cruelty to 224 cruelty to by interested person ... ... ... ... 221 abandoning under two ...... 9Q1 CHRISTIANITY, denying the truth of ..... . 127 CHURCH, breaking and entering and committing felony in ... ... 283 the like with intent to commit felony therein ... ... 284 committing felony in and breaking out of ... ... 284 setting fire to ... . . 354 CLERGYMAN, assaulting ... ... qq^ CLERK, .see 'VS'errn;*/,' who is in embezzlement ... ... ... ... 271 272 of factor or agent assisting in certain frauds . 314 CLUBS, UNLAWFUL, what are ... ... ... ... ... ... . 66 67 punishment of members of ... ... ... ... (53 permitting meetings of ..... . gc COAL, stealing from a mine ... ... ... ... _ _ _ 294 setting fire to a stack or mine of ... ... ... 355 attempting the foregoing ... . 370 CODICIL, stealing or destroying, &c. , a ... . 935 COERCION, see ' ' CompnUion. " COIN, "current," "copper," "counterfeit," "gild," "silver," " utter," "possession," explained ... ... ... 354,355 coining ' 355 buying or selling counterfeit below value ... ... 355 357 importing counterfeit ... ... ... ... _ 355 making or possessing instruments for coining ... ... 355,356 clipping gold or silver \ ... ... ... ... 35(j possessing clippings of ... ... ... ... 357 counterfeiting copper, or possessing instruments therefor ... 357 making or importing counterfeit foreign ... ... 357 coining foreign copper ... ... ... ... 353 exporting, uttering, or possessing counterfeit ... ... 358,359 defacing ' 359 making or selling medals resembling ... ... ... 330 principals in the second degree and accessories after the fact to offences relating to ... ... ... ... .__ 301 uttering or possessing false, after or followed by conviction ... 15 uttering by a married woman ... 03 COi^LISION OF SHIPS, making default as to regulations as to ... ... ... ... 334 464 INDEX COLLISION OF SHIPS— coH^wmefZ page neglect of duty in case of... ... ... ... ... ... 385 COLT, .stealing, or killing with intent to steal carcase of ... ... 289 COMMISSION, negotiating sale of military ... ... ... ... ... 92 intimidation of witness before a Royal ... ... ... ... 113 COMMISSIONER FOR OATHS, forging the seal or signature of ... ... ... ... ... 338 COMMON PURPOSE, makes partakers principals in the second degree ... ... 32 COMPANY, offences by and by directors of ... ... ... ... 314,315 personation as to stock of ... ... ... ... ... 351 COMPOUNDING PENAL ACTIONS 122 COMPULSION, effect of as to criminality... ... ... ... ... ... 24 of wife by husband ... ... ... ... ... ... 23 as an excuse for taking an unlawful oath ... ... ... 65 CONCEALING THE BIRTH OF CHILDREN 194 CONSENT, to the infliction of bodily injuries ... ... ... 164-166 no defence to indecent assault on a young person ... ... 202 of girl under sixteen, no defence to abduction ... ... ... 217 CONSERVATORY, stealing plant, &c., from ... ... ... ... ... ... 293 damaging the same in ... ... ... ... ... ... 374 CONSPIRACY, to commit a crime ... ... ... ... ... ... ... 39 seditious ... ... ... ... ... ... ... ... 70 to defeat justice ... ... ... ... ... ... ... 113 to carry out acts injurious to the public ... ... ... 124 to induce a woman to commit fornication or adultery ... ... 137 to murder ... ... ... ... ... ... ... ... 192 to defraud ... ... ... ... ... ... ... ... 305 conviction of after or followed by a conviction of felony or certain misdemeanors ... ... ... ... ... ... 15 in restraint of trade ... ... ... ... ... 390,391 CONSTABLE, refusing to assist in execution of his duty ... ... ... 95 assisting escape from ... ... ... ... ... ... 118 resisting arrest by ... ... ... ... ... ... 154 powers to arrest of ... ... ... ... ... ... 158 assaulting in the execution of his duty ... ... ... ... 205 CONTRACT OF SERVICE, breach of 391,392 CONVERSION OF PROPERTY, when embezzlement ... ... ... ... ... 271, 258 in case of delivery by mistake ... ... ... ... ... 261 by a bailee ... ... ... ... ... ... ... 262 of property found ... ... ... ... ... ... ... 264 after a taking amounting to a trespass ... ... ... ... 266 after an innocent taking ... ... ... ... ... ... 267 CONVICTION, see "Previous Conviction," consequences of in cases of treason or felony ... ... 11, 12 forging, of a justice ... ... ... ... ... ... 338 INDEX 465 COPYRIGHT, PAGE false entries in register as to ... ... ... ... ... 338 tendering false copy of such entry ... ... ... ... Ill CORN, servant giving to horse against master's orders ... ... ... 307 setting fire to stack of ... ... ... ... ... ... 365 crop of ... ... ... ... ... ... 368 attempting the above ... ... ... ... ... ... 370 CORONER, misbehaviour by ... ... ... ... ... ... ... 93 CORRUPTION, see ''Bribery;' ''Undue. Influence;' " Treafin;/;' " Making Interest for Office^;' by or of person in a judicial position ... ... ... ... 97 of public officers ... ... ... ... ... ... ... 97 of public bodies ... ... ... ... ... ... ... 98 COSTS OF PROSECUTION, person convicted of treason or felony condemned to pay ... 11 payment of, by first offenders ... ... ... ... ... 17 COUNTY COURT, forging seal or process of, or serving the same when forged ... 337 COURT OF RECORD, forging seal or process of, or serving when forged ... ... 336 COURT ROLL, forging a ... ... ... ... ... ... ... ... 332 COW, stealing, or killing with intent to steal carcase of ... ... 289 CREDIT, obtaining by false pretence ... ... ... ... ... 304 unlawfully obtaining by undischarged bankrupt ... ... 383 CREDITORS, see " Bankriqjtnj;' defrauding by gift or concealment ... ... ... ... 304 CROPS, setting fire to ... ... ... ... ... ... ... 368 CRUELTY, .vee'^CAiM." CUSTODY, defined 243 D DAM, causing damage to... DEAD BODIES, preventing burial of and disinterring not capable of being stolen DEATH, how inflicted incapacity of person sentenced to recording sentence of when it may be lawfully inflicted caused by omission of duty DEBENTURE, forging a DEBTORS, .see " Bankrupt cy;' offences under the Debtors Act . . . DECLARATION, makinc; a false ... 366 ... 138 ... 252 3 12 13 156-167 169, 171 ... 334 379, 383 ... 106 466 INDEX DECLARATION— eon^MMtefZ i'aoe the like as to pension under the Police Act ... ... ... Ill forging a ... ... ... ... ... ... ... ... 338 making false under tlie Merchant Shipping Act ... 387, 388 DEED, concealment of by vendor of land ... ... ... ... 304 forging ... ... ... ... ... ... ... ... 331 DEER, .see " Gamt.'' DEFENCE, right of private ... ... ... ... ... ... ... 159 DIE, forging a ... ... ... ... ... ... ... ... 335 making, &c. , for forging a trade mark ... ... ... ... 347 making fraudulent impression of stamp by ... ... ... 348 having forged, for a stamp ... ... ... ... 349 DIRECTORS OF COMPANIES, .see " Com2mnies;' frauds and misappropriations by ... ... ... ... 315 DISOBEDIENCE TO A STATUTE OR LAWFUL ORDER ... 95 DISORDERLY HOUSE, ])unishment for keeping ... ... ... ... ... ... 141 what is a 142,402 place of entertainment ... ... ... ... ... ... 145 inn ... ... ... ... ... ... ... ... ... 146 DOCK, stealing goods from ... ... ... ... ... ... 290 causing damage to works of ... ... ... ... ... 366 DOCKYARD, wrongfully obtaining or communicating official information as to 48, 49 setting fire to naval ... ... ... ... ... ... 362 DOCUMENT, of title, theft, destruction, concealment, &c., of... ... ... 292 official, theft, destruction, &c. of... ... ... ... ... 292 frauds by persons intrusted witli ... ... ... ... 312 forging a, relating to registration of deeds ... ... ... 334 forging original of a court of record ... ... ... ... 336 DOG, stealing having possession of, or skin of, stolen DRAFT CODE, explanation of the term ... DRILLING, UNLAWFUL DRUNKENNESS, no excuse for crime DUEL, sending challenge to fight a fighting a . . . DWELLING HOUSE, .see ''Burglary," ''Home," and ''House breaking,^' what is a ... being found Ijy night armed with intent to break into a, after or followed by conviction being found by night in a, with intent to commit felony, after or followed by conviction being found in without accounting after two convictions 295 295 63 54 187 282 15 15 16 INDEX 467 DWELLING HOUSE— coj;/»( utd having instruments for breaking or being found in for lawful purpose ... breaking and entering and committing felony in the like with intent to commit felony committing felon}- in and breaking out of .stealing in a, to the value of £5, or by menace setting fire to causing damage to, by explosion ... 153 284 284 284 290 364 365 E ELECTIONS, see '■'■Bribery," " Undue I'lflutnce," and " Treafiii;/," offences against the Ballot Act personation at ELECTRICITY, capable of being .stolen stealing or wasting... damaging electric line or work damaging telegraphic machine EMBEZZLEMENT, what is who is a clerk or servant ... property subject of, must be the master's distinction between theft and evidence as to of chattel money or valuable security by a public servant or constable by a servant of a local marine board EMBRACERY ENLISTMENT, illegal ENTER, see '' Burqlary" ENTRY, forcible ESCAPE, voluntarj' permission of by officer negligent permission of by officer sheriff permitting ... assisting, of prisoners of war assisting, from constable or peace officer helping, from prison by persons in custody from Pentonville or Parkhurst prisons ... EVIDENCE, as to theft ... as to embezzlement as to certain misappropriations and frauds giving false certificates as to forging document made, by Act of Parliament forging instruments of preventing any person from giving in case of making or possessing explosive."-- EWE, stealing or killing with intent to steal carcase of 103 . . . 352 ... 250 ... 294 ... 373 ... 374 258, 271 271, 272 ... 275 ... 276 ... 278 . . . 290 ... 291 ... 389 99 ... 73 61 115 115 116 117 118 118 119 120 269 271 316 111 337 110 113 364 289 343, 344 156 133, 153 468 INDEX EXCHEQUER BILL, page forging ... ... ... ... ... ... ... ... 331 acts preparatory to making EXECUTION, of lawfnl sentence EXHIBITION, indecent EXPLOSIVES, burning of, doing grievous bodily harm by causing grievous bodily liarm, or sending witli intent placing near a ship or building with intent to cause boil causing or conspiring to cause dangerous explosion unlawfully making or possessing ... evidence in last case damaging a Ijuilding by placing near a building or vessel with intent having or making with intent to commit felony EXTORTION, by public officers ... by threat to publish libel ily injury 196 196 198 363 303 364 365 369 373 S8 239 F FACTORS, misappropriation by ... ... ... ... ... ... 312 FALSE ACCOUNTING 317 FALSE PRETENCES, OBTAINING PROPERTY BY, punishment for ... ... ... ... ... ... ... 297 how far theft 259,268 what property the subject of ... ... ... ... ... 297 ' ' false pretence " defined ... ... ... ... ... ... 298 " obtains " defined ... ... ... ... ... ... 301 effect of several false pretences ... ... ... ... ... 301 intent to defraud in ... ... ... ... ... ... 303 cheating at play is ... ... ... ... ... ... 303 obtaining credit by ... ... ... ... ... ... 304 after or followed by conviction of felony or certain misde- meanors ... ... ... ... ... ... ... ... 15 probation of first offenders guilty of ... ... ... ... 17 FALSE SWEARING 109 FELONY, A'ce " Burylary," " Church," and " HousehreaMng," payment of expenses of prosecution on conviction of ... ... 11 compensation on conviction of ... ... ... ... ... 11 punishment for, if not otherwise provided ... ... ... 13 recognizances taken on conviction of certain ... ... ... 14 conviction of, after previous convictions ... ... ... 14 cumulative punishment for ... ... ... ... ... 18 accessory before tlie fact to, who is ... ... ... ... 33 accessory after the fact, who is ... ... ... ... ... 37 punishment of accessories before the fact and principals in the second degree ... ... ... ... ... ... ... 36 punislnnent of accessories after tlie fact ... ... ... ... 37 treason felony ... ... ... ... ... ... ... 47 administering or taking oath to commit certain ... ... 64 misprision of ... ... ... ... ... ... 122, 401 assault with intent to commit ... ... ... ... ... 205 being foixnd by night with intent to commit ... ... ... 285 INDEX 469 PENCE, PAGE stealing metal fixtures from ... ... ... ... . . 293 FERRETS, not capable of being stolen ... ... ... ... ... 251 FILLY, stealing or killing with intent to steal carcase of ... . . 289 FINDING, conversion after, when theft ... ... ... ... . . 264 FINE, explanation of the term ... ... ... ... ... ... 2 how to be inflicted... ... ... ... ... ... ... 10 amount of not to be excessive ... ... ... ... . 10 FIRST DIVISION MISDEMEANANT, imprisonment as . . . ... ... ... ... ... . 4,6 FIRST OFFENDERS, probation of ... ... ... ... ... ... . 17 FISH, damaging fishponds ... ... ... ... ... ... 370 putting lime into water to damage ... ... ... ... 371 unlawfully taking ... ... ... ... ... ... 37S FISHPOND, damaging a ... ... ... ... ... ... . 371 FIXTURES, how far capable of being stolen ... ... ... ... ... 249 theft of, when let with a house ... ... ... ... ... 'i91 stealing from a building ... ... ... ... . 293 FOOD, selling, unfit for consumption ... ... ... ... ... 147 adulteration of ... ... ... ... ... ... ... 147 FORCIBLE ENTRY 61 FOREIGN ENLISTMENT ACT, interference in foreign hostilities... ... ... ... ... 73 forfeiture of ship under ... ... . . ... ... ... 75 increasing force of belligerent ships ... . . . . ... 76 enlistment by misi-epresentation ... ... ... ... ... 76 presumption of knowledge ... ... ... 77 FORGERY 321-350 definition of 321 presumption of intent to defraud ... ... ... ... 321 what acts constitute ... ... ... ... 323-4 "alter," " resembling," " forge," meaning of ... ... ... 329 punishments for ... ... ... ... ... ... 329-350 of certain seals ... ... ... ... ... ... ... 330 of transfer of stock ... ... ... ... ... ... 330 of certain India bonds ... ... ... ... ... ... 330 of Exchequer bills, &c. ... ... ... ... ... ... 331 of a bank-note ... ... ... ... ... ... ... 331 of a stock certificate under the National Debt Act ... ... 331 of registers, &c. , as to certain annuities ... ... ... 331 of a deed, bond, &c., or signatures thereto ... ... ... 331 of a will ,S31 of a bill of exchange, promi.s.sory note, &c. ... ... ... 331 of an undertaking, order, request, &c. ... ... ... ... 331 of a note Ijill or security for payment of money or an indorse- ment thereon ... ... ... ... ... ... ... 331 of an accountable receipt or acquittance or receipt for money... 332 470 INDEX FORGERY — continued page of a court roll ... ... ... ... ... ... ... 332 of a cheque ... ... ... ... ... ... ... 332 of a register or a copy thereof ... ... ... ... 332, 333 of an authority for the transfer of stock ... ... ... 333 of a certificate of the redemption of land tax ... ... 333 (note 6) of a deljenture ... ... ... ... ... ... ... 334 of a docixment relating to the registration of deeds ... ... 33-t of an instrument made by the Accountant-General or otlier officers ... ... ... ... ... ... ... ... 334 drawing a bill or order without authority ... ... ... 335 obtaining property by a forged instrument ... ... ... 33.5 obtaining probate or letters of administration liy a forged will 335 of a stamp or die ... ... ... ... ... ... ... 335 of the seal of a court of record ... ... ... ... ... 336 of process ... ... ... ... ... ... ... ... 336 serving or acting under forged process ... ... ... ... 336 of a copy or certificate of a record ... ... ... ... 336 of a document to be used as evidence ... ... ... 110, 336 littering a false copy of a record ... ... ... ... ... 337 of an instriiment made evidence by Act of Parliament ... 337 of a marriage licence or certificate ... ... ... ... 337 of a signature of a witness to a transfer of stock ... ... 337 a clerk of the Bank of England or Ireland making a wrong dividend warrant ... ... ... ... ... ... 337 of process of a County Court, or serving it ... ... ... 337 of the seal or signature of a commissioner ... ... ... 338 of any process issued by, or declaration before, a justice ... 338 making a false entry as to copyright ... ... ... ... 338 defacing I'ate books ... ... ... ... ... ... 338 of ballot papers ... ... ... ... ... ... ... 339 of telegrams ... ... ... ... ... ... ... 339 receiving forged bank-notes ... ... ... ... ... 340 acts preparatory to making bank-notes ... ... ... 339-343 acts preparatory to making Exchequer bills ... ... 343-344 of trade-marks (.see " J'racZe il/a?-A.s ■') ... ... ... ... 346 of stamps (.see "iS'/am/^.s- ") ... ... ... ... 348-350 practising as a solicitor after conviction of ... ... ... 112 at common law ... ... ... ... ... ... ... 350 under the Merchant Shipping Act ... ... ... ... 387 FORTRESSES, wrongfully obtaining or communicating ofiicial information as to 48,49 FORTUNE TELLING 152 FRUIT, stealing or damaging with intent to steal ... ... ... 2P.? damaging any ... ... ... ... ... ... ... 374 G GAME, ' ' game " and ' ' night " defined ... three persons going armed in pursuit of, by night taking game or rabbits by night ... being on land armed by night in pursuit of, or rabbits 376 60 376 376 INDEX 471 GAME — rontinued page assaulting person authorized to arrest oflfenders ... ... 376 unlawfully hunting deer ... ... ... ... ... ... 377 assaulting keeper of deer ... ... ... ... ... ... 377 killing hares or rabbits in a warren by night ... ... ... 378 GAMING HOUSE, whatisa 143,402 punishment for keej^ing a... ... ... ... ... ... 141 evidence as to a ... ... ... ... ... ... ... 144 GAMING IN PUBLIC 153 GARDEN, stealing a plant, &c. , from ... ... ... ... ... 293 damaging a plant, &c. , in ... ... ... ... 374 GAS, capable of being stolen ... ... ... ... ... ... 250 breach of contract of service as to ... ... ... ... 392 GELDING, stealing or killing with intent to .steal the carcase of ... ... 289 GIRL, .s-ee ^' Abductioii," "Carnal Kiioirledye," " Wo7nan," &c., suffering to resort to premises for purpose of carnal connection 136 GLASS, stealing from a building ... ... ... ... ... ... 292 H HARBOUR, causing damage to works of ... ... ... ... ... 366 HARD LABOUR, imprisonment with or without ... ... ... ... ... 4 description of ... ... ... ... ... ... ... 4, 5 employment of prisoners not sentenced to ... ... ... 6 HAY, setting fire to a stack of . . . ... ... ... ... ... 365 crop of 368 attempting the above ... ... ... ... ... ... 370 HEALTH, nuisance to... ... ... ... ... ... ... ... 147 HEIFER, stealing or killing with intent to steal carcase of ... ... 289 HERESY 126 HIGHWAYS, nuisance to... ... ... ... ... ... ... ... 148 HOMICIDE, definition ... when the remote cause of death, or one of several acts is when causing death does not amount to when unlawful when murder or manslaughter when reduced to manslaughter by provocation ... when not extenuated by provocation HOPBINDS, doing damage to . . . ... ... ... ... ... ... 369 HORSE, stealing or killing with intent to steal carcase of ... ... 289 servant feeding against master's orders ... ... ... ... 307 175, 403 178 180 181 182 182, 185 188 472 INDEX HOUSE, see " Dwelling House," page riotous demolition of or damage of ... ... ... 57, 58 definition of ... ... ... ... ... ... ... 282 theft of chattel or fixtures from a let house ... ... ... 291 HOUSE-BREAKING, see " Burglar t/," ''House," and ''Dwelling House," definition of and punishment for ... ... ... ... ... 284 being found V)y night with implements for ... ... ... 285 being found by night in, with intent to commit felony ... 285 the last two offences, after or followed by conviction for felonj' or a certain misdemeanor ... ... ... ... ... 15 IDLE AND DISORDERLY PERSON 151, 152, 156 IGNORANCE, of law, effect of as to criminality ... ... ... ... 26 of fact, the like 27 IMMORALITY, ecclesiastical censure for ... ... ... ... ... ... 132 IMPRISONMENT, explanation of the term ... ... ... ... ... ... 2,4 liability to, where penal servitude only is provided ... ... 1 with or without hard labour ... ... ... ... ... 4 as misdemeanant of first division ... ... ... ... 4, 6 separate ... ... ... ... ... ... ... ... 5 employment during, without hard labour ... ... ... 6 incaj^acity of persons sentenced to certain terms of ... ... 12 illegal beyond the seas ... ... ... ... ... ... 89 INCITEMENT to commit a crime ... ... ... ... ... 39, 399 to mutiny ... ... ... ... ... ... ... ... 47 to offences under the Oificial Secrets Act ... ... ... 50 to offences under the Post Office Acts ... ... ... ... 296 INCORRIGIBLE ROGUE 154, 155 INDECENCY, acts of gross, between males ... ... ... ... ... 131 act of, in public place ... ... ... ... ... ... 132 exhibition of ... ... ... ... ... ... ... 152 INDECENT, sending, letter ... ... ... ... ... ... ... 135 assault 205 consent to assault, when no defence ... ... ... ... 202 INDIA BOND, forging ... ... ... ... ... ... ... ... 330 personation as to ... ... ... ... ... ... ... 351 INFANT, see " Child," may commit theft as a bailee ... ... ... ... ... 263 INLAND REVENUE, offences by officers of 93 INN, keeping a disorderly ... ... ... ... ... ... 146 INSANITY, when an act is prevented from being a crime by ... ... 20 presumption against ... ... ... ... ... ... 22 INTIMIDATION, what is 392,393 INDEX 473 INTIMIDATION— coH^ut Her/ page using unlawful ... ... ... ... ... ... 392, 393 of witness before a Royal Commission ... ... ... ... 113 procuring carnal connection by . . . ... ... ... ... 1 3G JESUITS, oftences by and as to ... ... ... ... ... ... 68 JUDICIAL DOCUMENTS, theft of 292 JUSTICE, conspiracy to defeat ... ... ... ... ... ... 113 JUSTICE OF THE PEACE, forging process or instrument of, or entered into before ... 338 K KIDNAPPING SOUTH SEA ISLANDERS 85 KILLING, *ee "Homicide," defined ... ... ... ... ... ... ... ... 175 presumption that it is murder ... ... ... ... ... 190 L LAMB, stealing or killing with intent to steal carcase of ... ... 289 LAND, not capable of being stolen ... ... ... ... ... 249 vendor of, concealing incumbrances ... ... ... ... 304 LAND TAX, forging certificate of redemption of ... ... ... ... 334 LARCENY, conviction of after conviction of felony ... ... ... 15 probation of first oft'enders in cases of . . . ... ... ... 17 taking and carrying away what is ... ... ... 246, 256 of property of a married woman ... ... ... ... ... 248 things capable of being stolen (.see '■'Theft") ... ... 249-253 by a servant ... ... ... ... ... ... ... 258 by a false pretence ... ... ... ... ... ... 259 bj^ taking advantage of a mistake ... ... ... ... 261 by a bailee ... ... ... ... ... ... ... ... 262 of property found ... ... ... ... ... ... ... 264 by and from whom it may be committed ... ... ... 263 when conversion amounts to ... ... ... ... 266,267 obtaining by false pretences distinguished from ... ... 268 temporary taking is not ... ... ... ... ... ... 268 taking tame animal wandering is not ... ... ... ... 269 evidence as to ... ... ... ... ... ... ... 269 punishment for when no other provided ... ... ... 286 the like after previous convictions ... ... ... ... 286 killing animals with intent to steal carcase, &c. ... ... 286 of a valuable security other than a document of title to land 287 of a chattel, money, or a valuable security from the person ... 289 of the same by a public .servant or constable, &c., intrusted therewith 291 of a will 288 I I 474 INDEX LARCENY — continued page of a post letter bag, post letter therefrom, &c. ... ... 288 of a letter containing a chattel, money, or valuable security by a servant of the Post Office ... ... ... ... ... 288 of a letter by the same ... ... ... ... ... ... 291 of a post letter bag from Post Office packet or letter out of such bag 291 of a chattel, money, or a valuable securitj' out of a letter . . . 289 of bond, &c., by a servant of the Bank of England or Ireland 289 of a horse or cattle or killing the same with intent to steal carcase, &c. ... ... ... ... ... ... ... 289 of property in a dwelling house worth £5 or by menace ... 290 of manufactured goods of value of ten shillings in course of manufacture ... ... ... ... ... ... ... 290 of goods in any vessel in port ... ... ... ... ... 290 of goods in any dock ... ... ... ... ... ... 290 of any part of a ship in distress or wrecked, or goods therefrom 290' of a chattel or fixtixre let with a house or lodging ... ... 291 of a document of title to land ... ... ... ... ... 292^ of a judicial or official document ... ... ... ... 292: of glass, woodwork or metal from a buikling, private or public property, or burial ground ... ... ... ... ... 293^ of a tree, sapling, shrub or underwood, or cutting the same with intent 293 of vegetable production in a garden, &c., or conservatory ... 293 of oysters from an oyster bed ... ... ... ... ... 293 of electricity ... ... ... ... ... ... ... 294 of any ore, &c., or coal from a mine, &c. ... ... ... 294 of a dog ... ... ... ... ... ... ... ... 295 LETTER, sending an indecent ... ... ... ... ... ... 135 unlawfully demanding any valuable thing Ijy ... ... ... 280 accusing by, of a crime ... ... ... ... ... ... 280 threatening by, to destroy property ... ... ... ... 280 stealing post-letter bag or letter therefrom, &c ... ... 288 stealing letter containing money, &c. , by a servant of the Post Office " 288 stealing a letter by the same ... ... ... ... ... 291 stealing post-letter bag from Post Office packet or a letter from siTchbag... ... ... ... ... ... ... ... 291 stealing chattel, money, or valuable security out of a letter ... 289 receiving stolen letter, &c. ... ... ... ... ... 320 opening unlawfully ... ... ... ... ... ... 295 sending, threatening to bui'n pi'operty or wound cattle ... 369 LEVYING WAR, high treason by ... ... ... ... ... ... ... 43 LIBEL, definition of 277,423 seditious ... ... ... ... ... ... ... ... 70- blasphemous ... ... ... ... ... ... ... 126 on a foreign power ... ... ... ... ... ... 73 onthedead 227 things capable of being a . . . ... ... ... ... ... 228 defamatoiy matter, definition of . . . ... ... ... ... 228 publication of, defined ... ... ... ... ... ... 229 when malicious ... ... ... ... ... ... ... 231 INDEX 475 LIBEL — continued page publication of the truth ... ... ... ... ... ... 231 of matter believed to be true ... ... ... ... 231 of criticism ... ... ... ... ... ... 235 of Parliamentary proceedings ... ... ... ... 235 of reports of trials and public meethigs ... 235, 238 in a court of justice ... ... ... ... ... 237 threatening to publisli unlawfully... ... ... ... ... 239 punishment for ... ... ... 039 LIME, putting into water ... ... -^'o LODGING, theft of chattel or fixture from ... ... ogj LORD'S SUPPER, depraving the ... ... ... ... loy LOTTERY, keeping a 14(3 LUNATICS, offences as to ... ... ... ... ... ... 224- 226 M MACHINE, doing damage to ... ... . . 37O MAIM, what is consent to . . . MAINTENANCE, ' MALICE, in murder and homicide ... in libel MALICIOUS INJURIES, .'*ee "Jr.vo«," to ships of war or stores in naval dockyards causing or doing act with intent to cause by explosives to dwelling-house by explosion ... to certain articles of manufacture or machinery... to a sea bank or danr to anj^ work of a port, reservoir or canal to a bridge or dam... to a railway or engine or carriage thereon placing explosive near ship with intent to cause to any ship in distress or goods belonging thereto to cattle to hopbinds... to machinery to a mine to a river or canal ... to private water putting lime in water to a ship to a sea-mark to a tree, &c. , or underwood to an electric line or work making an explosive or engine to cause ... to a building by a tenant... to a toll-bar... to telegiaph works... 165 165 li'2 , 400 182, , 407 23L , 423 362 363 365 365 3G6 ,371 366 366 366 ,367 369 369 369 369 370 370^ ,371 371 371 372 372 372 372, 374 ... 373 373 374 374 ... 374 476 INDEX MALICIOUS IN JURIES— fojf ^Mi?;efZ to a book or work of art ... to a public monument to projDertv generally MANSLAUGHTER, definition of homicide reduced to by provocation a man cannot commit on himself... accessories before the fact in punishment of MANTRAP, setting a MANUFACTURE, stealing goods to the value of 10s. exposed in the course causing damage to certain articles of or tools ... MANUSCRIPT, damaging ... MARE, stealing or killing with intent to steal carcase of MARRIAGE, solemnizing unlawfidly, of member of the Royal Family procuring the, of the parent of a bastard solemnizing irregular abduction with intent to marry ... foi'ging certificate or licence of ... JVLA.RRIED WOMAN, how far capable of crime in her husband's presence when not an accessor}' after the fact possession of, when that of husband offences against the property of . . . oftences by, against the projierty of her husband MERCHANDISE MARKS ACT, .see " Trade Mark" and " Dfscnption." MERCHANT SHIPPING ACT, see '^Shijx" METAL, stealing from a building or other place ... making or selling resembling gold or silver MILLPOND, breaking dam of ... MINE, stealing ore, &c. , or coal from setting fire to doing mischief with intent to obstruct the working of :\] ISAPPROPRI ATION, ' ' misapjiropriate " defined by bankers, merchants, agents, &e. imder power of attorney ... bj' factors or agents clerks assisting in ... MISCARRIAGE, woman using an instrument to procure on herself using an instrument to procure on a woman MISCHIEF, acts involving public MISDEMEANOR, what crimes are 182, of 365 PAGE 375 375 375 407 185 192 190 192 200 290 366 375 289 135 213, 214 215 337 23, 395 37 243 248 248 263 Trade 365 293 360 372 294 368 370 310 310 312 312 313 197 197 123 11 PAGE 4, 6 15 18 19 23 33 122 1-21, 401 122, 401 INDEX 477 MISDEMEANOR— coHCmwerf misdemeanants of the first division conviction of certain after previous conviction ... punishment of where not otherwise provided cumidative punishments for when committed by married women who is a principal in undefined ... MISPRISION, of treason of felonv MISTAKE, " theft by taking advantage of ... ... ... ... ... 26 1 MONKS, ofl^'ences by and as to ... ... ... ... ... ... 68 MONUMENT, damaging a ... ... ... ... ... ... ... 375 MURDER, definition of 182,407 suicide is ... ... ... ... ... ... ... ... 190 presumption that killing is ... ... ... ... ... 191 punishment of ... ... ... ... ... ... ... 191 attempts to commit ... ... ... ... ... ... 1 92 threats and conspiracies to ... ... ... ... ... 193 administering an oath to commit ... ... ... ... ... 64 capacity of married women to commit ... ... ... ... 23 MURDERERS, rescue of ... ... ... ... ... ... ... ... 117 MUTINY, incitement to ... ... ... ... ... ... ... 47 N NATIONAL DEBT ACT, forging stock certificate under ... ... ... ... ... 331 NECESSARIES OF LIEE, diity to provide ... ... .. ... ... ... ... 171 the like for apprentices and servants ... ... ... 200,392 parent not providmg for children ... ... ... ... 220 NECESSITY, effect of as to criminality ... ... ... ... ... ... 24 NEGLIGENCE, crimes by ... ... ... ... ... ... ... 169, 174 NIGHT, see " Burglary " and " Ho usebr eating," definition of in burglary ... ... ... ... ... ... 282 in poaching... ... ... ... ... ... 376 being found by with intent to commit felony ... ... ... 283 the same after or followed by conviction of felony or a certain misdemeanor ... ... ... ... ... ... ... 15 NIGHT POACHING, .see " Game.'' NUISANCE, common ... ... ... ... ... ... ... 140, 141 to health, life or property ... ... ... ... ... 147 by offensive trades ... ... ... ... ... ... 148 to highways ... ... ... ... ... ... ... 148 to bridges 149 478 INDEX NUISANCE— cojiffiJiHefZ to navigable I'iveis in the Post Office ... NURSERY GROUND, stealing plant, &c. , from O OATH, administering or taking, to commit treason or certain felonies the like, to engage in mutinous or seditious purposes ... compulsion how far an excuse for taking certain unlawful meaning of OBSCENE PUBLICATIONS OFFICE, incapacity for liolding certain, on conviction refusing to serve in a public selling and making interest for ... OFFICER, we '' Fnblic Officei-r OFFICIAL DOCUMENT, theft, destruction, &c. , of OFFICIAL INFORMATION, disclosure of OFFICIAL TRUST, breach of ORCHARD, stealing plant, fruit, &c. , from damaging the same in ORDER, forging an . . . ORE, stealing from a mine fraudulently concealing ... OX, stealing or killing with intent to steal carcase of OYSTERS, stealing from an oyster bed unlawfully dredging for ... PAGE 149 150 293 64 64 64 106 133 12 94 103, 104 292 48 49 293 374 331 294 308 289 293 295 PACIFIC ISLANDERS, kidnapping ... ... ... ... ... ... ... 85 PARKHURST, see ''Prison.:' PARLIAMENT, see ''Bribery," " Election:'' " Libel ,'' " Trea/ing;' " Undue Injluenrc:' PARTNER, theft by a 263,320 obtaining credit by a false pretence PAUPER, offences by ... desertion of PEACE, acts tending to disturb the public PEDIGREE, falsification of I'EDLAR, unlicensed ... ... 297 152, 154 ... 223 ... 124 ... 305 ... 151 INDEX 479 PENAL SERVITUDE, i-age explanation of the term ... ... ... ... ... ... 1,3 substituted for transportation ... ... ... ... ... 1 incapacity of person sentenced to ... ... ... ... 12 being at large before expiration of sentence of ... ... ... 121 PENTONVILLE, see '' Prkon." PERJURY, defined 106 105 109 109 112 111 351 352 352 subornation of punisliment for false swearing practising as a solicitor after conviction of PERSONATION, under tlie Police Act to obtain property in fraud of tlie Admiralty... at elections... PETITION, procuring signatures to without lawful authority and present- ing riotouslj' ... ... ... ... ... ... ... 62 PICKETTING, .see ''Intimidation:' PICTURE, selling obscene ... ... ... ... ... ... ... 133 damaging ... PILOT, neglect of duty bv... PIRACY, definition of assaults with intent to commit ... acts of hostility under a foreign commission adlrering on the sea to the Queen's enemies boarding ships and throwing cargo overboard ... favouring pii-ates ... trading and conspiring with pirates punishment for not fighting pirates piratical slave-trading PLANT, stealing or damaging with intent to steal damaging ... POISON, administering to a woman to procure abortion ... administering, so as to endanger life or inflict grievous bodily injury administering with intent to injure supplying to procure miscarriage POLICE, see '' Constahle," theft or embezzlement bv member of force POLICE SUPERVISION, subjection to person subject to not reporting himself ... after certain second convictions ... POSSESSION, defined 243,425 l)y special owner ... ... ... ... ... .■• ••• 245 POST OFFICE, see " Letter," and " Telegram " offences by officials of ... ... ... ... . • • • • ■ 92 375 386 78 79 79 79 80 80 81 81 81 83 293 374 197 198 199 199 291 7 8 15 480 IXDEX POST OFFICE— co?i