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TREATISE ON CRIMES AND MISDEMEANORS BY SIR WILLIAM OLDNALL RUSSELL, KNT., LATE CHIEF JUSTICE OF BENGAL. BY CHARLES SPRENGEL GREAVES, ESQ. OF Lincoln's inn, and the inner temple; EAHRISTER AT LAW; AND A MAGISTRATE FOR THE COUNTY OP STAFFORD. ^tk\\\h ^mnmw, from Ijic tijitii f onbit (irMtinn, WITH THE NOTES AND REFERENCES CONTAINED IN THE FORMER AMERICAN EDITIONS BY DANIEL DAVIS AND THEEON METCALF, ESQIIS., AND WITH ADDITIONAL NOTES AND REFERENCES, BY GEORGE SHAl^SWOOD. IN TAVO VOLUMES. VOLUME IL PHILADELPHIA: T. & J. W. JOHNSON, LAW BOOKSELLERS, No. 19T CHESTNUT STREET. 1853. Entered according to the Act of Congress, in the year 1853, by T. & J. W. JOHNSON, LAW BOOKSELLERS, Li the Clerk's Office of the District Court for the Eastern District of Pennsylvania. r KITE & WALTON, PRINTERS, NO. 3, RANSTEAD PLACE. TAELE OF CONTENTS SECOND VOLUME. BOOK IV. OF OFFENCES AGAINST PROPERTY, PUBLIC OR PRIVATE. CHAP. IX. X. XI. XII. XIII. XIV. XV. XVI. XVII. XVIII. XIX. XX. XXI. XXII. XXIII. XXIV. XXV. Of Larceny ...... Of Stealing from the Person .... Of stealing Horses, Cows and Sheep Of stealing and destroying Deer Of taking or killing Hares or Conies in a Warren, &c. Of unlawful taking or attempting to take Fish . Of stealing in any vessel in Port, or upon any navigable river, &c., or in any creek, &c. And of plundering shipwrecked vessels ...... Of larceny by servants, and Persons who have the Custody as Servants, and not the legal Possession Of Embezzlement by Clerks and Servants . Of Embezzlement by Brokers, Factors, and other Agents Of Embezzlements of minor importance Of Embezzlement by officers and Servants of the Bank of England, and by Public Officers Of Larceny and Embezzlement by Persons in the Post Office ; of stealing Letters; and of secreting Bags or Mails of Letters ...... Of Larceny and Embezzlement of Naval and Military Stores Of Larceny of Cloth, and other articles in a Process of Manu- facture ...... Of Larceny by Tenants and Lodgers Of Embezzlements and Frauds by Bankrupts 1 132 134 142 145 147 150 153 1G7 192 197 199 205 222 224 226 228 7 IV TABLE OF CONTENTS TO VOL. II. CnAP. , PAGE XXVI. Of Embezzlement and Frauds by Insolvent Debtors . 235 XXVII. Of receiving stolen Goods .... 237 XXVIII. Of taking a Reward for helping to the Discovery of stolen Property . . . . .254 XXIX. Of unlavffully receiving or baving possession of Public Stores 257 XXX. Of unlawfully receiving Tackle or Goods cut from or left by Ships; and of receiving Goods stolen on the River Thames 270 XXXI. Of Cheats, Frauds, False Tokens, and False Pretences . 274 XXXII. Of Forgery . . . . . .818 XXXIII. Of the forging, altering, &c., of Records and Judicial Process 414 XXXIV. Of Forgeries relating to the Public Funds, and the Stocks of Public Companies ..... 417 XXXV. Of forging the Securities of the Bank of England . . 424 XXXVI. Of forging the Securities of other Public Companies . 433 XXXVII. Of forging and transposing Stamps . . . 435 XXXVIII. Of the Forgery of Official Papers, Securities and Documents 459 XXXIX. Of the Forgery of Private Papers, Securities, and Documents 495 XL. Of falsely personating another . . . 539 XLI. Of malicious Injuries to Property . . . 544 XLII. Of Arson and the burning of Buildings, Mines, Ships, Corn, Trees, &c. . . . . . .548 XLIII. Of maiming and killing Cattle .... 569 XLIV. Of injuring and destroying Trees, Shrubs, or Underwood . 574 XLV. Of destroying, &c., Plants, Roots, Fruits, and Vegetable Pro- ductions ...... 576 XLVI. Of cutting and destroying Hop-binds . . . 577 XLVII. Of Breaking, &c., Sea Banks, Locks, and Works, on Rivers, Canals, &c. ...... 578 XLVIII. Of destroying the Dams of Fish-Ponds, &c., Mill-Ponds, and of putting noxious materials into Fish-Ponds, &c. . 579 XLIX. Of destroying or injuring Bridges, Turnpike-Gates, &c. . 580 L. Of destroying Fences, Walls, Stiles, or Gates . . 582 LI. Of the destroying and damaging Mines and Mine-Engines . 583 LII. Of destroying and damaging Articles in a Course of Manufac- ture, and of destroying, &c.. Implements and Machinery 585 LIII. Of destroying and damaging Ships and other Vessels, and Arti- cles thereunto belonging .... 591 LIV. Of wilful or malicious Damage to Real or Personal Property, not otherwise provided for ... • 595 TABLE OF CONTENTS TO VOL. 11. BOOK V. OF OFFENCES WIIICU MAY AFFECT THE PERSONS OF INDIVIDUALS OR rKOrEKTY. CUAI'. PAOB I. Of Property and Subornation of Perjury .... 696 II. Of Conspiracy ...... 674 III. Of Threats and Threatening Letters .... 706 BOOK VI. OF EVIDENCE. CHAP. PAGR I. Of what nature Evidence must be. Of Presumptive Evidence. Of the rule that the best possible Evidence must be produced, — and of Hearsay Evidence ...... 725 II. Of the proof of negative Averments. The Rule that the evidence must be confined to the point in issue. What allegations must be proved, and what may be rejected; and therewith of Surplusage and Variance ....... 769 III. Of Written Evidence ..... 804 IV. Of Confessions and Admissions. Of Examinations before Magistrates, and of Depositions ...... 824 Y. Of Witnesses. What facts Witnesses may disclose, and what arc Privileged Communications. How witnesses are to be Examined. How the Credit of Witnesses may be Impeached. How many Wit- nesses are sufficient. How the Attendance of Witnesses is to be compelled and remunerated. Of Accomplices. And what witnesses are competent to give Evidence . . . . . 902 TREATISE ON CKIMES AND MISDEMEANORS. BOOK THE FOURTH. CHAPTER THE NINTH. OF LARCENY, (a) We may now consider of the offence called larceny, a word formed by contraction, or rather, as it has been said, by abuse, from latrociny, latrocinium, and used to signify the violation of the property of an- other by theft, where the property is not taken from the house, curti- lage, &c., or the person of the owner, under such circumstances of aggravation as have been noticed in the preceding chapters of this (A) Massachusetts. — In an indictment for larceny and shop-breaking, proof that part of the goods stolen were found in the possession of the defendant, is prima facie evidence that he is guilty of the whole charge in the indictment ; not only that he stole the whole of the articles taken from the shop, but also of his breaking and entering as alleged in the indict- ment ; unless the defendant give some reasonable account how ho came by the goods. Commonwealth v. Millard, 1 Mass. Rep. 6. In the case of the Commonwealth v. Trimmer, 1 Mass. Rep. 4Y6, it was decided that a feme-covert is not chargeable lur a larceny jointly with her husband. And in the same case, that removing a idank which is loose, and is not fixed to the freehold in a partition wall of a building, is not a breaking within the statute. It appeared also in this case, that the goods stolen were the joint property of Haley and one Emery, — and that in the indictment they were alleged to bo the property of Haley only, whereupon SedgAvick, J. said, if the cause proceeded, there must be an acquittal, as a conviction upon this indictment would be no bar to another prosecution. The defendants consenting to an amendment of the indict- ment, the cause proceeded. In the case of the Commonwealth ?'. Brown, 4 Mas?. Rep. 580, it was ruled that if one, to whom a wagon load of goods consisting of several packages, is delivered to l)e transported from one place to another, fraudulently take away one of the packages, such taking is felony. And per Parsons, C. J., "I am of opinion, admitting the defendant to be a common carrier, and thus to have had a lawful custody of the goods, j-et all the goods in the wagon were delivered to him as one mass or body, and his taking away one of the packages, was a separating of a part from the whole, and thus was determined the supposed jirivifj- of con- tract;, for the extract with him was not to carry the several packages of which the load was composed, but to carry the load in the state in which it was delivered to him. "I have thus far considered the defendant a common carrier, having a special property in, and a lawful possession of, the wagon load. Bat he was not a common carrier, but a mere OF LARCENY, [BOOK IV. book. Formorly there was a distinction of this offence into grand lar- ceny and jictit hxrccny, the offence being grand larceny when the value of the property taken was above twelve-pence, and petit larceny, when servant to drive the team of a common carrier. It would be extremely mischievous to have it understood that every driver of a team, employed to drive the team of a common carrier, had a special property in the load, so that if he drives elsewhere than he was engaged to drive, and takes the whole load, he will be charged for au unlawful conversion only, and not for felony." Stealing goods in one state, and conveying the stolen goods into another state, is similar to stealing in one county and conveying them into another, which was always holden to be felony in both counties. Commonwealth v. Cullins, 1 Mass. Rep 116. The same point was decided upon full argument in the case of the Commonwealth v. Andrews, 2 Mass. Rep. 14, and in Lord's case, York, June term, 1792. — quoted in Andrew's case. Vkumo.nt. — A bailee of goods who has the qualified possession of them, is guilty of lar- ceny in privately eloigning and converting them to his own use. The State v. White, 2 Tyler's Rep. 352. See also the State v. Jenkins, Ibid. STS, and The State v. Smith, Ibid. 272. South Carolina. — In the case of the State v. Wood, 1 South Carolina Rep. 29, it was ruled, that on an indictment for grand larceny, the jury may find petit larceny. Cheves, J., said, " he had been informed by his brethren that the objection (that the indictment being for grand larceny the verdict for petit larceny was unauthorized) had been often overruled," and cited 2 East, P. C. p. 778, where it is expressly so laid down. Tennessee. — An indictment in the county court for petit larceny, in stealing goods of greater value than twelve-pence, should conclude against the form of the statute. The se- cond section of the act of 1807 has changed the nature of the offence of petit larceny, viz ; that petit larceny, shall consist in stealing property under the value of ten dollars. At common law it consisted in stealing property under the value of twelve-pence. Since the act, the county court possesses jurisdiction of the offence, which should appear by the in- dictment. 1 Overton's Rep. 107. The State v. Humphries. In the case of The State v. France, 1 Overton's Rep. 434, it was doubted whether, if a person be indicted for stealing the goods of Harris, it be sufficient to prove that the owner's name was Harrison, but that he was sometimes called Harris. In the same case it is said, that in every case affecting life or limb, the accused must not only be present when the evi- dence is given in, but during the trial, and on the return of the verdict. — J^^This is not the practice in Massachusetts as to the latter circumstance, viz., on the return of the verdict ; — cases have frequently occurred, where the prisoner, having been present during the trial, and being under recognizance, absconded while the jury were deliberating, and before they returned into court with their verdict. In such cases the court in that state have proceeded to default the prisoner upon his recognizance, and then take the verdict of the jury. If they pronounce him guilty, a capias issues, and he is brought in to receive sentence. Those cases usually happening at nisi priuf;, are not reported ; three cases, however, are collected, viz. Commonwealth c. Cilley, for a conspiracy, in Kennebec; Commonwealth v. Otis, for for- gery, in Middlesex ; and Commonwealth i\ Cochrane, for adultery, in York. — Editor. Pennsylvania. — An indictment for stealing bank notes generally, under the description of promissory notes for the payment of money, is bad. It should appear on the face of the indictment that they are bank notes of some incorporated bank, or in some way that they are lawful notes, no notes of unincorporated banks in Pennsylvania being at present the subject of larceny. Under the act of 30th January, and 19th March, 1810, (5 Smith's Laws, 81, 108,) the notes of unincorporated banks are not the subject of larceny. Spangier v. Commonwealth, 3 Binn. 533. Larceny of one bill, or obligation, is within the provision of section 5, of the act of 5th April, 1790, (2 Smith's Laws, 53,) which declares that larceny of bills obligatory, &c., shall be punished in the same way as larceny of any goods or chat- tels. Commonwealth v. Messenger & al., 1 Binn. 273. In which cases and, upon this point were cited Plowd. 86. 2 H. H. P. C. 305. 2 East, C. L. 598. 1 Leach, 1 S. C. Duhitatur in S. C. 4 Yeates, 69, Respub. v. Cleaver & al. So long as wild bees remain in the tree where they have hived, notwithstanding the tree is upon the land of an individual, and he has coufiued them in it, they are not the subject of a felony. They are ferce. naturcc, and the taking of them has been considered as a spe- cies of hunting. Wallis w.. Mease, 3 Binn. 546. In the case of Pennsj-lvania v. Bacomb & al., Addis. 386, it was decided that taking deer- skins hung up in the woods at an Indian hunting camp, may be larceny, though the skins were not in the possession of any one at the time of taking. As to the indictment and evidence in larceny, the following cases have occurred in Pennsylvania; an indictment for stealing two ten dollar notes of the President, Directors, and Company of the United States Bank, &c., is bad. They should be laid to be promis- sory notes for the payment of money. Commonwealth v. Bower, 1 Binn. 201. — (See a contrary decision, 1 Mass. Rep. 337, Commonwealth v. Richards.) See Spangier v. Commonwealth, 3 Binn. 533, and Commonwealth v. M'Dowell, 1 Browne, 360. An indictment, charging that the defendant feloniously did steal, take, and carry away, CHAP. IX.] OF LAllCKNY. the value was only twelve-pence, or under that sunQ.(«) But the late statute 7 & 8 Geo. 4, c. 20, s. 2, enacts, " tliat the distinction between grand larceny and petty larceny shall be abolished, and every larceny, (a) Stat. West. 1, (."J K(hv. 1,) c. 15. Tliis st.ilulc made reiruliilions as to sucl> oftcndcrs as were to Ijc maini)ern:il)le, iiiid mentions larceny as of two kinds, namely j^rand and petit — grand larceny, when the tiling stolen was above the value of twelve-pence ; and petit larceny, when of value of twelve-pence, or under. sundry promissory notes for the payment of money, of the value of ei J f were taken they added that they were of opinion, that the prisoners meant merely by the pri- to ride the horses to Lechlade, and to leave them there; and had no ?°°''" ''"'^ intention to return for them, or to make any further use of them. At ,1^0 them, a conference of the judges this finding was considered; when one of «" In the first of these cases it appeared that a pocket-book containing ijy (he pri- bank notes had been found by the prisoner in the highway, and after- "-^jncrB, and wards converted by him to his own use. Upon which Lawrence, J., ^y^jj^j^^^y observed, that if the party finding property in such manner knows the use. owner of it, or if there bo any mark upon it by which the owner can be ascertained, and the party, instead of restoring the *propcrty, con- *14 verts it to his own use, such conversion will constitute a felonious taking.(/j[' And in the subsequent case the two prisoners (father and son) were convicted of stealing a bill of exchange, upon evidence of / their having found and converted it to their own use, by endeavouring to negotiate it. Gibbs, J., stated to the jury, that it was the duty of every man who found the property of another to use all diligence to find the owner, and not to conceal the property, (which was actually stealing it,) and appropriate it to his own use.(«i) And in a recent case, a very learned judge said, << Suppose a person finds a check in the street, and, in the first instance, takes it up merely to sec what it is; if afterwards he cashes it, and appropriates the money to his own use, that is a felony, though he is a mere finder till he looks at it."(n) Where upon an indictment for stealing a hat, it appeared that the prosecutor, having his hat knocked off by some one, the prisoner, who had his own hat on his head, picked up the prosecutor's hat, and car- ried it home; Park, J. A. J., said, in summing up, "If a person picks up a thing, when he knows that he can immediately find the owner, and instead of restoring it to the owner, he converts it to his own use, this is felony. "(o) If a servant find money in his master's house, it is his duty to in- Monoy quire of his master whether it is his money, and if, instead of doin"; .?"", '° „r 1 _ . . C5 tbo house 01 so, he converts the money to his own use, he is guilty of larceny, a inastoi i> Upon an indictment for stealing four 5^. notes in the dwelling-house of '^^'^'■*'*"*'- her master, it appeared that the prisoner, when asked by her master what she had done with the money, at first said, she had not seen it, but afterwards said, she found the notes in the passage of the house ; and it was contended that, if that statement was true, the prisoner was not guilty of felony, as their being in the passage would not necessarily lead to the conclusion that the notes were her master's property, and she might have supposed that they were dropped by some person who had come to the house. Park, J. A. J., " It is suggested that this is {k) Sears's case, cor. Ashhurst, J., Old hailcv, 1789. 1 Leach, 415, note [b). (I) Anon. cor. Lawrence, J., Stafford Sum. Ass. 1804, MS. (w) llox i'. James and IJaruabas Waller.s, cor. (!ibbs, J., Warwick Summ. Ass. 1812. (h) Per Parke, B., Merry v. Green, 7 M. & W. G23. (o) Rex v. Pope,* 6 C. & P. 346. ■}■ [Ace. Connecticut v. Warton et al., 9 Conn. 527. Contra, Porter v. State, Martin and Yerger, 22G.] ^ Rug. Com. Law Reps. xxx. 432. 14 OF LARCENY. [BOOK IV. not a felony, because the prisoner might have found the notes in luj passage. What passage ? Why the passage of her master's house. What, if I drop a ring, is my servant to take it away?" After refer- ring to the case before Mr. J. Lawrcnce,(^) the learned judge pro- ceeded, '^ In the present case, there was no necessity for the prisoner to keep the property till it was advertised ; for, as she found it in her master's passage, she should have ascertained whether it was her mas- ter's, at least she should have asked him that qucstion."(5') *15 *A singular case occurred at no very distant period, of a conversion, Conversion with a felonious intent, of a large sum of money found in a bureau, "^ * !)7mo ^^"'^'^ ^^^ ^^^'^ delivered to a carpenter for the purpose of being ro- ncy with a paired. The point arose in the Court of Chancery upon the following felonious facts. Ann Cartwright died possessed of the bureau, in a secret part which' was of which she had concealed nine hundred guineas in specie. After her found in a death, Richard Cartwright, her personal representative, lent the bureau livered to a to ^^^ brother Henry; who took it to the East Indies and brought it oarpcntcr back, without the contents of it being discovered. It was then sold to t^bo repair-^ person named Dick for three guineas, who delivered it to one Green a carpenter, for the purpose of repairing it. Green employed a person named Ilillingworth who found out the money. Hillingworth received only a guinea for his trouble; but, in consequence of his discovery, the whole sum of nine hundred guineas was secreted by Green, by Green's wife, and by one E. Sharpe, and converted to their own use. On these suggestions, Cartwright, the personal representative of the original owner of the bureau, filed a bill of discovery against Green and his wife, and Mrs. Sharpe; in which bill Dick joined, but did not claim any of the money on his own account; and the defendants demurred to the billon the ground that an answer to the discovery sought might subject them to criminal punishment. After the argument upon this demurrer, the Lord Chancellor said, that the real question was, whether the bill charged a felony, and that the distinctions upon that point were so extremely nice, that he should not trust himself to say anything upon them until he had seen all the cases, and consulted some of the judges. Sometime aferwards his Lordship delivered his opinion and said — <'I have looked into the books, and have talked with some of the judges and others; and I have not found in any one person a doubt that this is a felony. To constitute a felony, there must, of necessity, be a felonious taking. Breach of trust will not do. But from all the cases in Hawkins, there is no doubt that this bureau being delivered to Green, for no other pur- pose than to repair, if he broke open any part which it was not neces- sary to touch for the purpose of repair, with an intention to take and ip) Ante, note (I). (q) Reg. V. Kerr,» 8 C. & P. 176, Park, J. A. ,J. In the first report of the Criminal Law Oommissioners it is said, " The intention of a {)orson taking property by finding will be fe- lonious or not according as his conduct in omitting to use due diligence to discover the owner, or in concealing the property, or in other circumstances, shows that in the taking he had or h 1 1 1 11- bureau, was contents, it any, was sold to liim ; or it he had no reason to believe that appropriat- anything more than the bureau itself was sold, the abstraction of the "^'^ '•* ^'^ /• 1 • i 1 • 11 -1. /? 1 • own use by money was a telonious taking, and he was guilty ot larceny in appro- tjig purcha- priaiing it to his own use: but that if he had reasonable ground forseroftho believing that he bought the bureau with its contents, if any, he had a i/Ji'j'^t.hat if colourable right to the property, and it was not larceny. To trespass the pur- for false imprisonment, the defendants pleaded that the plaintiff stole a "^^^^^^^ . . , mi knew that purse containing money, the propertyof one Tunnichffe, and that they the bureau gave him in charge to a peace officer to be taken before a magistrate to*"<^ °"* '^ I • ^ -,1 • /\i.i.-i- ■■■ contents be examined concerning the premises.(.5) At the trial it appeared that ^^gre sold to at a sale by public auction, in October, the plaintiff purchased at the him, it wu.s sum of 1^. Gs. an old secretary or bureau, the property of Tunnicliffe : g^wTf he the plaintiff kept the bureau in his house, and on the 18th of November had reason- following, Garland, a carpenter's apprentice, while doing some repairs ^'^'".^[P""'' at the bureau, remarked to the plaintiff that he thought there were ing that h^ some secret drawers in it, and touching a spring he pulled out a drawer, ^""sli''bot!i which contained some writings ; the plaintiff then discovered another and its cou- drawer, in which was a purse containing several sovereigns and other tents, coins, and under the purse a quantity of bank notes. Of this property the plaintiff took possession, and telling Garland that the notes were bad, he opened the purse, and gave him one of the sovereigns, at the same time charging him to keep the matter secret. Garland being in- terrogated by his parents how he came in possession of the sovereign, the tranaction transpired; and it being subsequently discovered that the plaintiff had appropriated the money to his own use, falsely alleg- ing that he had never had possession of a great portion of it, the de- fendants went with a police officer to the plaintiff's house, took him into custody and conveyed him before a magistrate on a charge of felony, when he was discharged, the magistrate doubting whether a charge of fclmiy could be supported. A witness slated that after the bureau was sold some one of the bystanders observed that the plaintiff might have buiight something more than the bureau, as one of the drawers would not open, upon which the auctioneer said, << so much the bettor for the (r) Cartwright v. Green, 8 Ves. 40"). 2 Leach, 952. («) The replication was dc injuria. 16 OF LARCENY. [BOOK IV. buyer ; I have sold it with its contents." The auctioneer, however, stated that there was one drawer which would not open, and that what he said was, '' that is of no consequence, I have sold the secretary, but not its contents." It did not appear that any person knew that the bureau contained anything whatever. Tindal, C. J., told the jury that as the property had been delivered to the plaintiff, as the purchaser, he thought there had been no felonious taking, and left to them the ques- tion of damages only, reserving leave for the defendant to move to enter a nonsuit; and after argument, and time taken to consider, the following luminous judgment was delivered by Parke, B., " My lord chief justice thought in this case that, even assuming the facts, of which evidence was given by the defendants to be true, the taking of the purse and ab- stracting its contents was not a larceny, and that is the question which he reserved for the opinion of the Court, giving leave to move to enter *17 a nonsuit. After hearing the argument, *we have come to the conclu- sion that, if the defendant's case was true, there was sufficient evidence of a larceny by the plaintiff; but we cannot direct a nonsuit, because a fact was deposed to on the part of the plaintiflF, which ought to have been left to the jury, and which, if believed by them, would have given a colourable right to him to the contents of the secretary, as well as to the secretary itself; viz., the declaration of the auctioneer, that he sold all that the piece of furniture contained, with the article itself; and then the abstraction of the contents could not have been felonious There must, therefore, be a new trial, and not a nonsuit. But if w^ assume, as the defendant's case was, that the plaintiflE" had express notice that he was not to have any title to the contents of the secretary, if there happened to be anything in it; and, indeed, without such express notice, if he had no ground to believe that he had bought the contents, we are all of opinion that there was evidence to make out a case of lar- ceny. It was contended, that there was a delivery of the secretary, and the money in it to the plaintiff as his own property, which gave him a lawful possession, and that his subsequent misappropriation did not constitute a felony. But it seems to us, that though there was a delivery of the secretary, and a lawful property in it thereby vested in the plaintiff, there was no delivery so as to give a lawful possession of the purse and money. The vendor had no intention to deliver it, nor the vendee to receive it ; both were ignorant of its existence : and when the plaintiff discovered that there was a secret drawer containing the purse and money, it was a simple case of finding, and the law applica- ble to all cases of finding applies to this. The old rule that, < if one lose his goods and another find them, though he convert them animo Tfthefinder /wi'a?i(?i to his own use, it is no larceny,'(s) has undergone in more knows the j-ecent times some limitations ; one is, that if the finder knows who the owner from /.ii ■, . ./.r- i • l any mark Owner ot the lost chattel is, or if, from any mark upon it, or the on the chat- circumstances under which it is found, the owner could be reasonably circum- ascertained, then the fraudulent conversion, animo furandi, constitutes stances iin- a larceny. (<) Under this head, fall the cases where the finder of a is^fo^nd ' pocket-book with bank notes in it, with a name on them, converts them the owner animo furandi ; or a hackney coachman, who abstracts the contents of can be rea- ^^ parcel which has been left in his coach bv a passenger, whom he could sonably as- '^ . "^ ^ ° , . certained, easily ascertain; or a tailor who finds and applies to his own use a (s) 3 last. 108. [t) Ante, pp. 13 and 14. CHAP, IX. § I.] TAKING, ETC., ANIMO FURANDI. 17 pocket-book, in a coat sent to him to repair by a customer whom he j'le fraudu- must know : all these have been held to be cases of larceny, and the ^'jy^ ^^ |^,._ present is an instance of the same kind, and not distinguishable from ccny. them. It is said that the offence cannot be larceny unless the taking would be a trespass, and that is true ; but if the finder from the circum- stances of the case must have known who was the owner, and instead of keeping the chattel for him, means from the first to appropriate it to his own use, he does not acquire it by a rightful title, and the true owner might maintain trespass, and it seems also from Wynne's case,(it'j that if, under the *likc circumstances, he acquire possession, and mean *18 to act honestly, but afterwards alter his mind, and open the parcel with intent to embezzle its contents, such unlawful act would render him guilty of larceny. Wo, therefore, think that the rule must be absolute for a new trial, in order that a question may be submitted to the jury, whether the plaintiff had reason to believe that he bought the contents of the bureau, if any, and consequently had a colour of right to the property. "(w) It should seem that in cases of this kind the jury, before they con- Intention vict, ought to be satisfied that the prisoner intended at the time when ^^ ^JjJ^ ^^^^ he found the article to convert it to his own use, for if at the time he ing. found the article he took it with the intention of discovering the owner and restoring it to him, and it afterwards came into his mind to convert it to his own use, and he did so, it should seem that it would not be larceny. A coat was left lying on a stone scat by the road side, and was soon afterwards found in the prisoner's possession : Bayley, B., told the jury that in order to the prisoner's being found guilty of larceny, they must be of opinion that at the time the prisoner took the coat he did so animo farandi ; that he might have taken it very honestly, intending, if it was inquired after, to restore it to the owner, or he might have taken it intending to make it his own.(?i') In cases of this nature, where the taking was by finding, some of the strongest circumstances to rebut the implication that such taking was felonious, will be those which show that the party made it known that he had found the property, so as to make himself responsible for the value, in case he should be called upon by the owner; or those which show that he endeavoured to discover the true owner, and kept the goods till it might reasonably be supposed that the true owner could not be found, (wio) Where a wife was indicted for stealing, and her husband for receiving a five pound note, and it appeared that the daughter of the prisoners and another little girl, while walking in a street, saw the five pound note on the ground, and the prisoner's daughter picked it up, and gave it to her companion ; and the prisoner's daughter on returning homo told her mother of the circumstance, who thereupon went to the house where the other girl lived, and said to her, « Where is that note which our Mary picked up?" and upon its being given to her, she went away with it, and gave it to the husband, who converted it at once into money ; {u) Ante, p. 1.3. This position is at variance with the following case, and with 2 Ka.st. T. C, p. 665, and docs not seem fairly dcducible f'loiii AVynne's case, as there the prisoner mvist have known the bo.\ was put in the coach, and as he assisted in taking out the lug- gage, his leaving it behind was evidence of an intention at that time to convert it to his own use. There was no evidence of his intending to restore it, but a statement after he was in custody that he had been the same day to tiie prosecutor's for the i)urpose, of the trutli of which nothing is stated in the report. C. S. G. (v) Merry v. (Jreen, 7 M. k W. 623. {iv) Milburnc's case, 1 Lew. 251. {tore) 2 East, 1*. C. c. 16, s. 90, p. 665. 18 OF LARCENY. [BOOK IV. arnl when inquiry was made for the note, both the prisoners denied all knowledge of the circumstances. Coleridge, J., said, " A man who loses anything, docs not thereby lose his property in it, and the finder is bound to restore it to the owner if possible ; and if he keep it when he thinks it is only lost by the owner, it is larceny in him. If the property bo found when it is abandoned by the owner, it is his own who finds it. If the property be lost, but not abandoned, and if the finder find it with intent to restore it, but afterwards appropriate it, he does not commit larceny in the first instance. Ignorance of the law cannot excuse any person ; but at the same time, when the question is, with what 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 that he is guilty of felony. The wife might think that she had a right to the note, in consequence of her daughter having picked it up ; and if she acted openly, you must say that she took the note from the other little girl in ignorance of the continuing rights of the owner. It is im- possible almost to think that she supposed the owner to have intention- ally abandoned the note, but yet she might have thought that her daugh- ter having first picked it up, had a right to it, and a right prior to that of the other girl, who first saw it; and thinking so, she might have gone and made the demand for it, as if she had said, ' You have Mary's note, give it up/ Under these circumstances she could not be guilty of larceny. But then the conduct of the parties subsequently is to be considered. "(,t) In the course of the case, the learned judge also said, << If tlie circumstances under which property is found be such that the ownership has been abandoned, the thing is honum vacans, and any one may take it; but if the ownership be not abandoned, the thing is not the property of the finder ; if in addition to this, the person who finds it shows no intention to find out the owner, or to return it, that person is guilty of larceny." The folo- Where there is clearly the animus farandl in some of the parties niousintent concerned in a felonious taking, it may be negatived as to another party, ™'*'^^^ ^g*^' if it appear that such other party had a difi"erent object in view from to ono of that of obtaining any share of the stolen property. J. Donally was in- the parties jj(.|;c(;{ f^^ a burglary in the house of a Mr. Poole, and Gr. Vau2;han as wnGTC it o •/ ' o appears accessory before and after the fact to the <' said felony and burglary." that his jt; appeared that Donally, at the instigation of Vaughan, who was in to afFcct the '•lie employment of the police-office at Bow-street, had concerted with apprehen- three Other men, to rob the house of Mr. Poole, and it was agreed that other's ° Vaughan and another officer should lie in wait to apprehend the three thoush he other men, and that the reward for their conviction should be divided cefted'°he ^D^o^gst them. It further appeared that Vaughan had told Mr. Poole commission (hat his housc would be robbed that night, desiring him to mark a piece of the felo- ^f cloth, and leave it on the counter, to take care to fasten the latch of ny, with y-iTi , . 1111 view to the door, and to make no resistance, as he should not lose anything; to reward. which Poole consented, and left the house with Vaughan and the other ofiicer to watch ; which they did in a passage on the opposite side of the street. Mr. Poole's house was robbed by Donally and the three other men ; and the three men who accompanied Donally were almost imme- diately apprehended by Vaughan and Barrett, and had been tried at a *19 former sessions of the Old Bailey *for burglary; but were convicted (x) Reg. V. Reed,* 1 C. & Mars. 30G. " Eng. Com. Law Reps. xli. 170. CHAP. IX. § I.] TAKING, ETC., ANIMO FURANDI. 19 only of stealing in the dwelling-house to the amount of 40s. in conse- quence of ]Mr. Poole's evidence as to it being possible, at the time the robbery was committed, to sec a person's face by the light of the day. Upon the present indictment against Donally and Vaughan, the jury ac((uittcd Donally of the burglary, but found him guilty of stealing in the dwelling-house to the value laid in the indictment of bl., and Vaughan as accessory before and after the commission of the said felony and stealing in the dwelling-house. Upon this finding it was objected, that this could not be larceny in Donally, because not done animo furandi ; and further it was objected on behalf of Vaughan, that as the indictment was against him as accessory to a burglary committed by Donally, and as the jury had acquitted the principal of the burglary, the charge against the accessory must necessarily fail. The learned judge also doubted, with respect to Vaughan, whether he could be said to incite or procure Donally to commit an offence where he engaged him to take the part of appjin ntly joining in it, for the purpose of appre- hending the offenders. The case was reserved for the cons^ideration of the judges, and argued before them in Michaelmas Term, 181G. All the learned judges were present, and ten of ihcm, namely, Gibbs, C. J., Macdonald, C. B., Graham, 13., Wood, B., Baylcy, J., Dallas, J., llichards, B., Park, J., Abbott, J., and Burroughs, J., held the con- viction wrong. They were of opinion, that as Donally was not present to aid or assist, (though the other offender thought he was,) but to de- tect, and as he had no intent that the felony should be successful, he had not the felonious intention necessary to make him a principal, al- though he acted from a bad motive, viz., the reward. But several of the judges seemed to think that he was liable to be indicted as an acces- sory before the fact. Lord Ellenborough, and Ilolroyd, J., thought the conviction right; that although there was a clear intention that the felony should be discovered, yet there was another intention not incon- sistent with the former, viz., that the felony should at all events be committed; and the presence of Donally did in fact aid and assift and countenance the commission of the felony. (x) Besides the animus furandi, it is necessary that the taking of the Tho taking goods should also be without the consent of the owner invifo domino. "^*-^^^.^'^°'^^ ^ . . . must be This is of the very essence of the crime of larceny, (^) as it has been ,„i-iro already shown to be essential in one of a similar nature, namely, in Yoh-\'""","°- , bery.(s) ,.^sc. This material ingredient in the offence of larceny underwent great Some consideration in a modern case, where the following circumstances were i,avinK given in evidence against the prisoners, upon an indictment for a bur- plnnned glary and larceny. It appeared that the prisoners, intending to rob fipy'rvanrof manufactory at Soho, near Birmingham, of which Mr. Boulton was the tim owner principal proprietor, applied to a man named Phillips, who was em- *^" '''^*' ployed as servant and watchman to the manufactory, to assist them in goods, the the robbery. Phillips assented to their proposal ; but immediately owner . . . . knowing of afterwards gave information to Mr. Boulton, and told him what was in- ^|,g pi„t,^ tended, and the manner and time the prisoners were to come : that they directed his were to go into the counting-house, and that he *was to open the door *20 (z) Rex. V. Donally and Vaughan, Mich. T. 18 IG. Russ. & Ry. 310. S. C. 2 Marsh. Rep. 571. From this decision it became unnecessary to give any opinion upon the objection taken on behalf of the prisoner Vaughan. (y) Fost. 123. (2) Ante, Vol. I, p. 814, 20 OF LARCENY. [BOOK IV. '..Tvantto into the front yard for them. Mr. Boulton told him to carry on the Iho'^biisU business, and that he would bear him harmless ; and Mr. Boulton also noss, with a consented to his opening the door leading to the front yard, and to his view to thoijjjjijf, ^itii tiie prisoners the whole time. In consequence of this infor- dctection of <= r _ i i • , tho thieves, mation, Mr. Boulton removed from the counting-house every thing but which the J5Q rjuincas and some silver ingots, which he marked, in order to fur- sprvjiii t ftC- . . oor.lingly nish evidence against the prisoners; and laid in wait to take them, when (lid: and it they should have accomplished their purpose. On the 23d of Deccm- to bo larce-bcr, about one o'clock in the morning, the prisoners came, and Phillips iiy by tho opened the door into the front yard, through which they went along the the'iud'^os'- ^^'^nt of the building, and round into another yard behind it, called the >.iit one of middle yard; and from thence they and Phillips went through a door, V"^ w 1 which was left open, up a staircase in the centre building, leadin"; to doubted, on t ) f 1 1 i 1 • . , tho ground the couuting-housc and rooms where the plated business was carried on : of the own-^jjjg Jqqj, ^[^g prisoners bolted, and then broke open the counting-house, cr s a^pciit o ' and partial which was lockcd, and the desks, which were also locked : and took encourage- from thence the ingots of silver and guineas. They then went to the felony, by story above, into a room where the plated business was carried on, and means of brolic the door open, and took from thence a quantity of silver, and re- Ki aervan . jm-^^^j down stairs; when one of them unbolted the door at the bottom of the stairs which had been bolted on their going in, and went into the middle yard, where all (except one who escaped,) were taken by the persons placed to watch them. On this case two points were made for the prisoners; one, which has been noticed in a former chapter, that the offence did not amount to burglary, and which was decided in favour of the prisoners ;(a) the other that no felony was proved, as the whole was done with the knowledge and as33nt of Mr. Boulton, and that the acts of Phillips were his acts. The prisoners having been convicted, the case was argued before the twelve judges, a majority of whom held that the prisoners were guilty of the larceny : for that, although Mr. Boul- ton had permitted, or suffered, the meditated offence to be committed, he had not done anything originally to induce it ; that his object being to detect the prisoners, he only gave them a greater facility to commit the larceny than they otherwise might have had; and that this could no more be considered as an assent than if a man, knowing of the intent of thieves to break into his house, were not to secure it with the usual number of bolts. They thought also that there was no distinguishing between the degrees of facility a thief might have given to him ; that Mr. Boulton never meant that the prisoners should take away his pro- perty, and the circumstances of the design originating with the prison- ers, and Mr. Boulton's taking no step to facilitate or induce the offence, until after it had been thought of, and resolved on by them, formed, in the. opinion of some of the judges, a very considerable ingredient in the case, and differed greatly from what it might have been, if he had em- ployed his servant to suggest the perpetration of the offence originally to the prisoners. But Lawrence, J., before whom the prisoners were tried, doubted whether it could be said to be done invito domino, when the owner had directed his servant to carry on the business, and meant that the prisoners should be encouraged by the presence of that ser- vant; and that by his assistance they should take the goods, so as to (a) Ante, Vol. 1, Chap, on Brealdng, ^c, within the Curtilage, p. 863. CHAP. IX. § I.] TAKING, ETC., ANIMO FUIIANDI. *21 make a complete *fclony j though he did not mean that they should carry them away.(Z>)f Upon some of the doctrines relating to the felonious talcing^ &c , Ca?o8 which have been already mentioned, points of considerable difficulty "hero the will sometimes occur: but by far the most nice and intricate questions the delivel arise upon the class of cases which are now to be considered, namely, H'."'" con - those in which it appears that the goods were taken hij the delivery or o^ner, or consent of the oxcner, or of some one having authority to deliver them, of some The material ingredients in the definition of larceny, already spoken fn^authorV- of, must still be kept in mind; particularly that of the antm?) Rex V. Egginton and others, 2 Leach, 913. 2 East, P. C. c. 16, s. 101, p. 6GG. \c) 1 Hale, ."iOr., 506. 1 Hawk, P. C. c. Xi. s. 6. 2 East, P. C. c. 16, s. 109, p. G82. (d) 1 Hale, 506. (e) Re.x V. M'Namcc, R. k M. C. C. R. 368. See this case more fully stated, /)o«/, tit. Lar- cen>/ t>y Seruantn. if) Anon. Old Bailev, 16G4. Kel. 35. 2 East, P. C. c. IG, s. 109, p. G82. (g) 2 East, P. C. c. 16, s, 109, p. 682, 683. 1 Hawk. P. C. c. 33, s. 2. f [The distinction is between the owner's procuring his property to be taken ; and his merely leaving it in the power of the defendant to execute his own original purpose of taking it ; and in the latter case the taking is to be regarded as invito domino. State v. Cov- ington, 2 Bailey, 569.] 21 OF LARCENY. [bOOK IV, that inasmuch as the prosecutor had parted with the possession, it did not amount to larceny. (/i) So where a drover of cattle was employed "'-• to drive eight oxen to London, and his ^instructions wore, that if he could sell them on the road he might; and those he did not sell on the road, he was to take to a particular salesman in Smithficld, who was to sell them : and the drover sold two on the road, and instead of taking the others to the salesman, drove them to Sniithfield, and sold them there, and converted the money to his own use ; it was held that this was not larceny. (i) Where the It is stated that, in general, where the delivery of goods is made for dohvery IS r^ certain special and particular purpose, the possession is still supposed ceruiin spe- to reside, unparted with, in the first proprietor. (_;')'j' And that if a cial pur- watchmaker steal a watch, delivered him to clean ; or if a person steals ^"^ ■ clothes, delivered for the purpose of being washed ; or goods in a chest, delivered, with the key, for safe custody; or guineas, delivered for the purpose of being changed into half-guineas; or a watch, delivered for the purpose of being pawned; in all these instances the goods taken have been thought to remain in the possession of the proprietor, and the taking of them away held to be felony. (^-^ But, unless in these cases the privity of contract, under which the goods were delivered, appeared, by soiiie means, to have been determined (of which more will be said hereafter,) it seems difficult to see how they are distinguishable, some of them at least, from the cases of a goldsmith, to whom plate is delivered to work or to weigh ; a tailor, to whom cloth is delivered that he may make clothes with it ; and a friend, who is entrusted w'.th pro- perty to keep for the owner's use ; in which cases an embezzlement, or conversion of the goods, by the party to whom they are delivered, has been said not to amount to felony. (Zj In these latter cases, as well as in the former, the delivery of the goods is made only for a special pur- pose ; yet it seems that the possession of them has not been considered as remaining with the owner, but as having passed to the party by a lawful delivery without fraud, and, therefore, not the subject of a sub- (h) Rex V. Smith, R. & M. C. C. R. 4T3. (i) Reg. V. Goodbody,* 8 C. «fe P. G65, Littledale, J., and Barke, B. See this case more t'n\\y,j)osf, tit. Larceny hy Servants, (j) 1 Hawk. P. C. c. 33, s. 9. (A:) 1 Hawk. P. C. c. 33, s. 10, and the various cases there cited. {I) 1 Hawk. P. C. c. 33, s. 2. 2 East, P. C. c. 16, s. 113, p. 693. f [If the owner of goods parts with the possession for a particular purpose, and the per- son who receives the possession avowedly for that purpose, has a fraudulent intention to make use of the possession, as the means of converting the goods to his own use, and does so convert them, it is larceny. Lewis v. The CommonweaUh, 15 S. & R. 93. But if the owner intends to part with the property ., and delivers possession absolutely, and the purchaser receives the goods for the purpose of doing with them what he pleases, it is not larceny, although fraudulent means may have been used to induce him to part with them. lb. Although every larceny includes a trespass, and cannot exist unless there has been a taking from the possession of another, yet when one having only the care, charge, or custody of property for the owner, converts it animo furandi.^ it is larceny ; the possession in judg- ment of la\y remaining in the owner until the conversion. The People v. Call, 1 Denio, 120. So where the holder of a promissory note having received a partial pa3'ment from the prisoner, who was the maker, handed it to him to endorse the payment, who took it away ;ind refused to give it up, held, that the possession remained in the owner, the prisoner ac- quiring only a temporary charge or custody for the special purpose ; and that in subsequent conversion, the jury having found it felonious, was larceny. Ihid. In such a case it is not essential tliat a fehanious intent should exist when the prisoner received the note. It is enough if he converted it animo furandi. Ibid.] * Eug. Com. Law Reps, xxxiv. 5'75. CHAP. IX. § I.] WHERE THE PROPERTY IS PARTED WITH. 22 sequent felonious conversion. The distinction, indeed, between a bare charge, or special use of goods, and a general bailment of them, seems to be sufficiently intelligible ; and it seems consistent with principle that, in the former case, the legal possession should be considered as remaining in the owner; and, in the latter, as having passed to the bailee; and that, therefore, in the former case larceny may be commit- ted of them by the person to whom they have been delivered, and that in the latter it may not, unless there be a determination of the privity of the contract : but it is in the application of this doctrine to particu- lar cases, that the distinctions seem to become obscure, (m) In a case where a prisoner was a lodger, and his landlady, wanting CampbcU'.-i ehanije for a bank-note, sent it, by her servant, to the prisoner upstairs, ^^^^' ,, , ° 11.,, !• • 1 1 • r ^ landlailjf begging that he would give her change for it ; when the prisoner after sends her examinino; his purse, said that he had not gold enough about him for f ''■^'""'' '? J' O Sr ' _ _ O D lodKtT Willi the purpose, but that he would immediately go to his bankers, and get the „, bank- note changed ; upon which he left the house, with the bank note in his "ott-, re- hand, and never returned ; the prisoner *appcars to have been convict- ]!i'i,\'„"^ ed without any question having been made as to the offence amounting change it, to larceny, (mm) But, in this case it probably might have been con- i|^°' ^"^^IIJI'^ sidercd that the landlady did not intend to part with the note without it. first receiving the change ; and if so, that the servant delivered the note }}'^^'\ ^^^^ to the prisoner without the authority of her mistress, and, therefore, *9^ that no legal possession of it ever passed to the prisoner; and that in taking it he was guilty of a trespass. (n) If the owner of goods employ a person, not in his service, to take If the own- them to a customer and show them him and brinn; them back again. *^'" ^{ ^°°'^^ o <~> ^ employ a without authorizing him to sell them to the customer, or to leave them person to with him, and he sell them instead of taking them to the customer, he *"'\'^ ^^"'"' is guilty of larceny ; but in such case, if he was either authorized to to anoihcr, sell them to the customer, or to leave them with him, he is not guilty without of larceny. The prosecutor desired the prisoner to take his horse and .^,',y'" uti','™ cart and show some pigs to a lady ; and to return in a quarter of an rity to sell hour. He told the prisoner what was to be the price of each of the pigs, *"^j^ thc*m" if the lady should take a fancy to them, but he was not to sell them, to his own only to sec if they were the right size for the lady ; he was not trusted ^^^' •'■ '^ to sell them and receive the money ; he was to bring the pigs back in a quarter of an hour whether she liked them or not ; the prisoner sold the pigs, and did not take them to the lady : it was urged that the prisoner could not be convicted of larceny unless he was not in the situation of a bailee, or he intended from the beginning to steal the pigs. Alderson, B., told the jury, "That the first question is whether the prisoner had a felonious intent from the commencement of the transaction : and the second whether he received the pigs as bailee to deal with them, or only as a servant having the custody of them, and whose duty it was to bring them back. If the prosecutor meant that the (m) See more upon the cases which relate to a delivery and privity of contract de- termined in a subsequent part of tliis chapter. And upon those which relate to a bare charge of the goods or a possession of them delivered over, post, sec. 3, in which the sprriof properlj/ sufficient to constitute an ownership of the goods taken is considered ; and also, post, Chap. On Larceny bi/ Servants. (mm) Campbell's case, 2 Leach, 5G4. There was a question raised in the case as of the offence amounting to a stealing in the dwelling-house (within the statutes 12 Anne c. 7), which was noticed, ante, p. 85G, Vol. 1. (n) By Scarlett, arguendo, in Walsh's case. 2 Leach, 1079. VOL. II.— 3 23 OP LARCENY. [BOOK IV. Delivery whore the owner remains present. prisoner should leave the pigs with the lady, and either bring back the money or make a bargain for the sale of them, then he will be in the situation of a bailee. The question i« whetlier they were delivered to the prisoner simply that he shoiild show them to the lady, and bring them back bodily ; if they were, then if the felonious intent came upon him at that time it would come upon him at the time when he had only the custody and not the possession, and in that case he Avould be guilty of stealing. "(o) It has been suggested as worthy of consideration whether the distinc- tion concerning the legal possession remaining in the owner, after a de- livery in fact to another, do not extend to all cases where the thing, so delivered for a special purpose, is intended to remain in the presence of the owner. And it it is well advanced in support of the observation, that in cases of this kind the owner cannot be said to give any credit to, or repose confidence in, the party in whose hands it is so, in fi\ct, placed ; and that the thing intended to be returned to the owner again, and resumable by him every moment, his dominion over it is as perfect as before ; and the person to whom it is so delivered, has, at most, no more than a bare limited use, or *charge, and not the legal possession of it.(^A And though the case of a person going into a shop, under pretence of buying goods, and upon their being delivered to him to look at, running away with them; and also that of a person going into a market, and obtaining a horse for the purpose of trying its paces, and then riding away with it, have been considered as felonies, on the ground of a preconcerted design to steal the chattels ;(g') yet they ap- pear also to be sustainable on the ground that the legal possession of such chattels still remained in the owner of the goods, notwithstanding the delivery, he continuing present. [A Upon the same principle, also, of there being but a bare charge or special use, it has been holden that if the clerk to a banker or merchant have the care of money, or if he have access to it for special and par- ticular purposes, and be sent to the bag or drawer for money, for the purpose of paying a bill, or if he be sent for the purpose of bringing money generally out of the bag or drawer, and at the time he brings such money he clandestinely and secretly takes out other money for his own use, he is as much guilty of a felony as if he had no care of the money, or access whatsoever to the bag or drawer. (s) It may be further observed, as clearing the ground of inquiry con- cerning these cases of a delivery of the goods by the owner, that it is Delivery where the owner parts with the a settled and well established principle, that if the owner part with the properti/ m^jrojjcrf^ in the goods taken, there can be no felony in the taking, how- taken, ever fraudulent the means by which such delivery was procured. (<)j- (o) Reg. V. Harvey, 9 C. & P. 353, Alderson, B. (p) 2 East, P. C. c. 16, s. 115, p. G83. (qj 1 Hawk. P. C. c. 33, s. 14, 15. Kel. 82. 2 East, P. C. c. 16, s. 106, p. 567. (r) Chisser's case, T. Raym. 275, 276. 2 East, P. C. c. 16, s. 110, p. 683, 684 : in which last cited authority see also the argument iu support of this doctrine. (s) Murray's case, 0. B. 1784. 1 Hawk. P. C. c. 33, s. 7. 2 East, P. C. c. 16, s. 109, p. 683. 1 Leach, 344. (t) 2 East, P. C. c. 16, s. 102, p. 668, s. 103, p. 969, s. 113, p. 693. f [An indictment for larceny will not lie if it appear that the articles alleged to be stolen have been transferred so as to create any trust right or property by any consideration, ex- p-css or implied, or agreement. And this is a question to be considered by the jury. IVilson V. The State, 1 Porter, 118. False pretence or artifices to obtain another's property by one entertaaiing a felonious design CHAP. IX. § I.] WHERE THE PROPERTY IS PARTED WITH. 24 The following arc some of the cases in which it has been holdcn that the owner had parted with i\iQ properti/ in the goods, by his delivery of thcni to the prisoner. Upon an indictment for horse-stealing, it appeared that the prosecutor Harve^-'s was at a fair, having a horse there, in the care of a servant, which he of". The intended to sell, when he was met by the prisoner, to whom he was per- rodratvay sonally known, and who said to him, " I hear you have a horse to sell; "ith a I think he will suit my purpose; and if you will let me have hira a jj^f^j*^ '^'^'J." bargain I Avill buy him." The prisoner and the prosecutor then walked it mtl gold together into the fair, towards the horse, and upon a view of him, the'"/',""' o . without prosecutor said to the prisoner, "You shall have the horse for eight pay in" the pounds ;" and calling to his servant, he ordered him to deliver the purchase horse to the prisoner. The prisoner immediately mounted the horse, ^ ' ^' saying to the prosecutor that he would return immediately and pay him. The prosecutor replied "Very well." The prisoner rode away with the horse, and never returned. Upon these facts the learned judge, by whom the prisoner was tried, directed an acquittal, on the ground that there was a complete contract of sale and delivery, and that ihc properti/, as well as the possession, was entirely parted with.(!<) In another case, the indictment against the prisoner was for ^stealing *25 a piece of silk of the value of ten pounds, the goods of Thomas Wilson. Parkcs's Mr. Wilson was a silk manufacturer, in the ncijrhbourhood of Cheap- r,"'"®- . sidc ; and it was proved that the prisoner had called at his warehouse, soncr, with and, after looking at several pieces of silk, had selected the one in ques-"^ fmudu- tion, agreed for the price of it, and said that bis name was John Wil- to°oUaiu" liams, that he lived at No. 6, Arabella-row, in Pimlico, and that if Mr. goods, Wilson would send it there at six o'clock in the afternoon, with a bill ",!^jegman and receipt, he would pay hiiu for it. Mr. Wilson, accordingly, entered to send him the piece of silk in his day-book, to the debit of the prisoner, made out *'^'.'\*^' *^ ^® a bill of parcels for it in his name, and sent his shopman with it to the delivery ; place, and at the hour appointed. The shopman met the prisoner near ""^'' "r"n Arabella-row, and accompanied him to No. 6, where he went with bdng^sent him into a room, and delivered to him the bill of parcels, which he ex- "''cording- amined ; and after saying it was right, gave the shopman two bills of ^^J-^^^^f"' * 10/. each, drawn by Frith and Co. at Bradford, on Taylor and Co. in who London. The amount of the silk was only 12Z. 10s. ; and the shopman ^I'^^JIf ^i,'iij stated that he had not sufficient cash about him to pay the difTerence wliich were between that sum and the amount of the two bills: upon wliich the '"T"-' ^'^'^"- •II- • -111 111 c-ations, prisoner said that it was immaterial, that he should want more goods, and of no and that he would call on the ensuing day at his master's, to look outy"l"°; ^"'^ other goods, and take the change. Upon this the shopman left the ^,u u^t (,« i,J (?/) Harvey's case, Chelmsford Sum. Ass. IVS?, cor. Gould, J. 1 Leacli, 437. 2 East, P. C. c. IG, s. 103, p. 669. will make larceny, provided it does not appear that a temporary trust or possession was ex- tended to the party. Several of tlic English cases hold that, though goods be obtained by false pretences and with a design ah iiiilio not to pay for them, yet being delivered by the owner with an intention to sell them, the jiretcndcd jiurchascr is not guilty of larceny. This distinction was followed in Mourcf/ y. Htf/.y such *Mr. Broad, who was a friend of the prosecutor's, solicited the loan of """^"jifo'r three pounds for a few days, and desired that the money might be en-jj^j^^ ^^^^ closed back in the letter immediately. The prosecutor, upon the receipt the proper- of this letter, sent the bank notes in question, enclosed in a letter '^ '" * directed to Broad, which he delivered to Dale, who delivered it to the passed by ]irisoner as he was first ordered. The letter sent by the prisoner to the ^^° ^fu^'^' prosecutor was altogether an imposition. It was objected on the behalf owner, of the prisoner at the trial that this was no felony, because the absolute ""'^ there- dominion of the property was parted with by the owner, though induced (],(, offcnco thereto by means of a false and fraudulent pretence. And the prisoner air of candlesticks from a silver-smith to be sent to his lodgings, whither they were sent accordingly, with a bill of parcels by a servant ; and the prisoner contriving to send the servant back, under some i)rctence, kept the goods ; and it was ruled to be felony, altiiougii they were delivered with the bill of parcels ; such delivery being made under an expectation by the owner of being paid the money ; for the jury found that it was a pretence to pur- chase with intent to steal. Mr. East, however, remarks upon this case, that it must be understood that the prisoner ran away with the goods, or did some other act to denote an intention of withdrawing himself from any account of them ; and that no credit was in- tended to be given him, but that it was meant as a sale for ready money only. 2 East, P. C. ibid.n ote (a). ■j- [Blunt V. The Commonwealth, 4 Leigh, 689]. 37 OF LARCENY. — OF A TAKING, ETC. [bOOK IV. consider whether they were satisfied by the evidence that the prisoner, when he first called upon Berens, had no intention of buying and pay- ing for the goods, but gave the order for the purpose of getting them out of Beren's possession, and afterwards clandestinely removing and converting them to his own use; and, if they were so satisfied, to find the prisoner guilty, which they did. And, upon a case reserved, the judges were clearly of opinion that there was a felonious taking, the jury having found that the prisoner's intention ah initio, was to get the goods out of Beren's possession, and then clandestinely remove and convert them to his own use, and that the conviction was right. (A The plaintiff dealt in slippers; one Fuller, who likewise dealt in them, came to him and asked for fifteen dozen of slippers, saying he had an order for them; the plaintifi" refused to trust him with the goods, but went with him to the place of sale, which was the warehouse of the defendants, wholesale shoe manufacturers ; on arriving there Fuller said to the plaintiff, " You must not go in, or you will spoil my custom ;" the plaintiff remained on the outside a quarter of an hour, when Fuller came out, having sold and delivered the slippers to the defendants in the warehouse, and, being asked by the plaintiff for the money, made an excuse, and soon afterwards ran away. The plaintiff indicted Fuller for stealing the slippers, and he was convicted. (7>i) *33 Taking goods the prisoner has bargained to buy is felonious, if by Taking the usage the price ought to be paid before they are taken, and the ^^.°^^ ^ ^, owner did not consent to their being taken, and the prisoner, when he without tho • 1 /. 1 Ti . 1 n ^ 1 consent of bargamed for them did not intend to pay for them, but meant to get the owner them into his possession, and dispose of them for his own benefit *with- ino' the 0^^ paying for them. Upon an indictment for stealing four oxen, the price, property of the Marquis of Tavistock, it appeared that R. Baker was the^usat'^ employed by the bailiff of the Marquis to sell the oxen at Ampthill fair the price for ready money. The prisoner inquired the price, and agreed for 48^. firft^paki^"-'-'^^* Baker asked him to mark them (which is done by clipping off is larceny, some hair,) he said^ "No, I'll mark them by-and-by, and if you go if the bar- (jg^n to the King's Arms Fll pay you for them." Baker soon went to gain was ,t7-->a i ti n i ^ • 1 • T 11 made with the Kings Arms, but did not find the prisoner; having dined there, intent to Baker returned into the fair to the place where he had left the beasts, without but they were gone. Two witnesses severally proved that they pur- paying for chased two of the oxen in the fair from the prisoner. Search was after- °™' wards made for him in the fair and at the different inns, without suc- cess. Baker said that the custom was to mark the beasts when they were sold; that they are nDt delivered until they are paid for, which is generally about dinner time, and if the prisoner had applied to him for leave to drive them away, he would have refused till he had received the price. The prisoner told him his name was Grilby, but did not men- tion where he lived. Grarrow, B., left it to the jury to say, whether the prisoner, at the time he made the bargain, intended to pay for the oxen, or merely to get them into his possession to sell them and convert the money to his own use. The jury found the prisoner guilty, and said they thought he never at any time intended to pay for the beasts. {I) Rex V. Campbell, R. & M. C. C. R. 179, cited in Stephenson v. Hart, 4 Biug. R. 476, » (m) Lyons v. De Pass, 11 A. & E. 32G. ' Eag. Com. Law Rep. xt. 47. CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 38 And, upon a case reserved, the conviction wa^; affirmed, the jury having found that the prisoner never meant to pay fur the oxcn.(«) The prisoner, John Wilkins, was indicted for stealing a great many W'ilkinV pair of stockings, the property of William Wayte. The following were ^^f'- the facts of the case: The prosecutor, Mr. Wayte, who was a hatter uwrur oi and hosier near the Ilaymarket, delivered two parcels, containing the goo'^s sent goods mentioned in the indictment, to his apprentice, with directions to j,p^".^,„j^j,'''^ carry them to the house of Mr. Heath, a hosier, in Milk-.strcet, Cheap- be dL-liver- side. As the apprentice was going up Ludgate-hill, with the parcels *''' !",' under his arm, he was met by the prisoner at the bar, who asked him prisoner where he was going? To which the apprentice answered, "to ]Mr ''""'i"''' i- Heath's." The prisoner, producing a small parcel, replied, " I know tiio delivery j'our master, and I owe him for those parcels; I was going for them to <'f ••'"-"» '" your shop, therefore do you give me your parcels, and take this back ,',]■" ten dine to your master; there is a letter inside, and it must be immediately for- to be A., it warded to Mr. Brown." The apprentice accordingly consented to tlie ^J'^^^/j^jj."'" proposed exchange, and delivered the two parcels to the prisoner, and ceny. the prisoner delivered his parcel to the apprentice. The prisoner, hav- ing effected this exchange, endeavoured to separate himself from the apprentice ; but his manner created a slight degree of suspicion in the apprentice's mind, who, to satisfy his doubts, ran after the prisoner, and asked him if he was the Mr. Heath to whose house he was conveying the parcels? The prisoner replied, that he was Mr. Heath, and desired the apprentice to make haste home with the other parcel. The parcel which was delivered by the prisoner contained a collection of old rags of no value, and he was not the Mr. Heath he pretended to be. The jury were of opinion that the prisoner, by falsely pretending* that he *o9 was going to the house of the prosecutor for Mr. Heath's parcels, had contrived to make this exchange of parcels with an intent wrongfully to obtain and convert to his own use the goods mentioned in the indict- ment, and therefore they found him guilty. The court, however, being doubtful whether, under all the circumstances, the crime amounted to felony, the judgment was respited, and the case referred to the consi- deration of the twelve judges, who were unanimously of opinion that the conviction was right. The learned judge (Gould, J.,) who delivered their opinion, said, that it appeared to him that the prisoner's having obtained these goods fraudulently from the apprentice was just the same as if he had obtained them from the actual possession of the mas- ter.(o) A prisoner was indicted for stealing bristles, and it appeared that the Getting prisoner went !o the counting-house of the prosecutor and represented ^>"^""> „ , .,,. 1 »i r , • ■ .11 11 1 and without nvesuulings agency, and tlie discount, on receiving tlie hundred pounds, pnyino- tUo As the prisoner and the clerk departed, Mr. Edwards whispered the nioncy; clerk not to leave the prisoner without receiving the money, nor to lose "^"^^ ho'den eight of him, and promised to follow them in half an hour. The pri- to be lnr- fioner and the clerk accordingly proceeded together to the prisoner's P^"^,.' *^° lodgings in Pultuey-strect. When they arrived, the prisoner showed a iirccon- the clerk into the ijurloiir, and desired him to wait while he fetched the ''yt<''l i^o- I • 11 1 rr 1 1 1 *'"" ''y '•'>* money, sayuig, that it was only about three streets ori, and that he pnsuiiur to should bo back again in a quarter of an hour. The clerk, however, K'^'i''^ bill followed him down Pultney-street, but, having lost sight of him as he possession turned the corner of another street, walked backwards and forwards in with intent the street for a length of time, in hope of seeing him return. The pri- " '^^'^^ ' ' soncr did not come back again, and the clerk, being joined by Mr. Ed- ward.s, went again to the prisoner's lodgings, and both of them waited there three nights, in the vain expectation of *the prisoner's return. A *43 few days afterwards he was taken, and upon his apprehension expressed his sorrow for what had happened, made several a2:)ologics for his mis- conduct, and promised to return the bill. It was objected by the pri- soner's counsel, that these facts did not amount to felony. But the court left the case with the jury to consider, first, whether they thought that the prisoner had a preconcerted design to get the note into his pos- session with an intent to steal it; and, secondly, whether the prosecutor intended to part with the note to the prisoner without having the money paid before he parted with it? The jury found the affirmative of the first, and the negative of the second question, and concluded that the prisoner was therefore guilty. And this conviction was holdcn right upon reference to all the judges. (^) The prisoner was indicted for stealing bank notes to the amount of Oliver's thirty-five pounds, the property of William Smith, under the f^jll^jwing^^^g^j^^j, ® circumstances. The prisoner, being in possession of a quantity of gold oflVrod coin, went into a room in a public-house, in the neighbourhood of New- ^° aocom- castle-upon Tyne, when the prosecutor, who was a gentleman's servant, the pro- and who had about him notes belonging to his master, to a considerable scRiifr by amount, happened to come into the same room. Soon afterwards the ^^y\^^ ^^,T prisoner took an occasion to make a display of his gold, when a conver-'j="'li notes, sation respecting it ensued between him and the prosecutor; the pi"osc- "/,p'" (,j(,. cutor expressing a wish that the prisoner would oblige him by letting cutur put him have some gold in exchange for notes and silver, not at an advanced ''"^^? ** ^r . o b ^ ' number oi price, but at its legal currency. The prisoner stated that, if it would bank notes be any accommodation to the prosecutor, and the prosecutor would do '^'"" '''" him the same kindness on a future occasion, he would let him have some of their gold for his notes and silver; and the exchange took place to a small '"''"'? ^o , J. rni • 1 1 11 ■!> • 111/. oxchnngcd. amount, ihc prisoner then observed, that it it would be of any mate- xiio priao- (t) Aickles's case, 0. B. 1784. I Leach, 294. 2 East, P. C. c. 10, s. 106, p. C75. 43 OF LARCENY. [BOOK IV. nor took up rial service to the prosecutor, he would procure him a considerable fur- *^d"°ufo ^^^^ quantity of gold, if the prosecutor would lay down notes to the away with amount. Upon this the prosecutor put down thirty-five pounds, in bank them. And jjQteg^ for the purpose of receiving back their amount in gold ; and the holdon to prisoner took them up, and went out of the house with them, promising bo larceny, jq return immediately with the gold. The prisoner did not return; and believed the prosecutor never saw him again till he was apprehended. Upon these that the facts, Wood, B., held, that the case clearly amounted to larceny, if the fntcndod J"'T believed that the intention of the prisoner was to run away with to run away the notes, and never to return with the gold : and that whether the pri- with the gQQer iiad, at the time, the animus furandi^ was the sole point upon not to re- which the question turned ; for if the prisoner had, at the time, the *"'"" "j'"^ ail imus fur audi, all that had been said respecting the property having " ' been parted with by the delivery, was without foundation, as the pro- perty, in truth, had never been parted with at all. The learned judge further said, that a parting with the property in goods could only be effected by contract, which required the assent of two minds : but that in this case there was not the assent of the mind, either of the prosecu- tor or of the prisoner; the prosecutor only meaning to part with his notes on the faith of having the gold in return ; and the prisoner never meaning to barter, but to steal. («) *44 *So where on an indictment for stealing a half-crown, two shillings. Obtaining amj gi^ penny pieces, it appeared that the prisoner went to the shop of fraudulent ^^^ prosecutor and asked his son to give him change for a half-crown, pretence of and the boy gave him two shillings and six penny pieces, and the pri- diange^ soner held out the half-crown, of which the boy caught hold by the edge, but never got into his possession, and then the prisoner ran away, having drawn the half-crown out of the boy's hand, and taking it and the change with him; Park, J. A. J., said, "If the prisoner had only been charged with stealing the half-crown, I should have had great doubt, as the half-crown was his own, but he is also indicted for stealing the two shillings and the copper. He falsely pretends that he wants change for the half-crown, gets the change and runs off; I think that it is a larceny ."(y) Where a But where, upon an indictment for stealing a sovereign, it appeared party is ^^^.t the prosecutor and the prisoner having entered a beer shop were with a so- drinking together, and that the prosecutor who had agreed to treat the vereign to prisoner, took a sovereign out of his pocket for the purpose of paying, chano'ed 3-nd offered it to the landlady to change and upon her declaring her ina- and he bility to do SO, she placed it on the table, and the prisoner said, " I'll with it it c'^ ^"^^ g^*' change." The prosecutor said, "you won't come back with is not lar- the change," to which the prisoner replied, " never fear," and taking up prosecutor^ *^^ sovereign, left the house, and did not again return. It appeared never ex- from the evidence of the prosecutor, that he was not aware of the last pected to remark of the prisoner, nor at first that he had gone out with the sove- receive . ^ ' . . ° . , . . back that reign, but he had not offered any opposition to the prisoner's taking it, specific having left the sovereign on the table after his reply to the prisoner's offer. For the prisoner it was submitted that the prosecutor having parted with the legal possession of the sovereign, the subsequent appro- (m) Oliver's case, cor. Wood, B., Northumberland Sum. Ass. 1811, cited by Gurney, ar- guendo in Walsh's case. 4 Taunt. 2Y4. 2 Leach, 1072. [v) Rex V. Williams, MS. C. S. G., and 6 C. & P. 390,» Park, J. A. J. * Eng. Com. Law Rep. xxv. 453. CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED, 44 priation of the money by the prisoner did not amount to larceny. Cole- ridge, J., (having conferred with Gurney, B,) said, "It appears quite clear that the prosecutor having permitted the sovereign to be taken away for change, could never have expected to receive back again the specific coin, and he had therefore divested himself, at the time of the taking, of the entire possession in the sovereign, and consequently, I think that there was not a sufl&cient trespass to constitute a iar- ceny."(w) Upon an indictment for stealing a receipt, the prosecutor proved that If a tenon the prisoner rented some premises of him for 251. a year, and that on ^'^-^ j/*""! • the day on which he quitted, there being a half a year's rent due, he rent from took a stamped receipt really written and signed, to the premises, off!"^,'*'"^' which the prisoner had removed all his goods. The prosecutor, at the pretence of desire of the prisoner, went into a room in his house, where the pri- ""lUng to soner pulled out a bag of money, and asked the prosecutor whether he with intent had brought a receipt, and the prosecutor said that he had, and the pri- '« deframl soner asked to look at it; the prosecutor gave him the receipt, which ,||-'|Jig^^,j\'^'' the prisoner took, and put two sovereigns into the prosecutor's hand and it is a lar- immediately went away; and upon the prosecutor afterwards asking him *^^"^ ^^ *^^' for the remainder of the money, he *said he had got his receipt and he ^^^a,- should not pay it. The prosecutor stated that at the time he gave the prisoner the receipt, he thought the prisoner was going to pay him the rent; that he should not have parted with the receipt unless he had been paid all the rent; but that when he put it in the prisoner's hands, be never expected to have the receipt again, and that he did not want the receipt back again, but wanted his rent to be paid. For the prisoner it was submitted that this was not a larceny. For the prosecution Oliver's case(x) was cited in point; and it was contended that it was clear the prosecutor never intended to part with the receipt unless he was paid all the rent; the prisoner, on the contrary, never intended to pay the rent, and obtained the receipt by means of fraud : the property in the receipt, therefore, was not changed, and the case amounted to lar- ceny. Coleridge, J., " I think it is a larceny. The prisoner had re- moved his goods off the premises, so that the prosecutor could not dis- train; and then the prisoner induces the prosecutor to part with the receipt by asking to look at it, and it is delivered to him for that pur- pose. It is quite clear, also, that the prosecutor never intended to give the prisoner the receipt till he was paid all the rent, and I think the payment of the two sovereigns makes no difference." (y] So where it appeared that the prisoners decoyed the prosecutor into a Property public-house, and there introduced the play of cutting cards : and that "^''""®*^ "•'' one of them prevailed upon the prosecutor (who did not play on his own cards" bets account) to cut the cards for him ; and then, under pretence that the ^^• prosecutor had cut the cards for himself, and had lost, another of them swept his money off the table, and went away with it ; it was considered to be one of those cases which should be left to the jury to determine quo animo the money was obtained, and which would be felony, in case they should find that the money was obtained upon the preconcerted plan to steal it.(^) (?/') Reg. V. Thomas, 9 C. & P. 741. » See Moore's case, pout, p. 46. (z) Supra, note (m). (»/) Reg. v. Rodway, 9 0. & P. 784\ and MS. C. S. G. (z) Rex V. Horner and others, 1 Leach, 270. Cald. 295, S. C. The case was one of an » Eng. Com. Law Rep. xxxviii. 314. b lb. xxxviii. 334. 45 OF LARCENY. [BOOK IV. So if there is a plan to cheat a man of his property under colour of a bet, and he parts with the possession only to deposit as a stake with one of the confederates, the taking by such confederate is felonious. The prosecutor was drawn in to deposit twenty guinea notes on a bet that one of the prisoners could not guess right three times successively on the hiding of a halfpenny by another of the prisoners under a pot ; he put the notes in the hands of one of the prisoners, and then the other guessing right, the notes were handed over. The question was left to the jury, whether, at the time the notes were taken, there was not a plan between the prisoners that they should be kept, under the false colour of winning a bet; and the jury so found. Upon a case re- served, the judges (ten of them being present) held that the conviction was right, because at the time of the taking the prosecutor parted with the possession only, (a) In some of the cases of this description, the delivery of the goods *46 *taken has been only by way of pledge, or security ; but the same doc- trine will apply if such delivery were obtained fraudulently and with intent to steal. This will appear from the following case where the fraud practised was of the kind commonly described by the term ring dropping. Ta-tch's The prisoner, J. Patch, was indicted for stealing a silver watch, steel case. Tho chain, &c., two pieces of foreign coin, and seven shillings in money, the \v7th"some property of J. Bunstead. The evidence of the prosecutor was, that the accompli- prisoner and two other persons, who made their escape, had joined him ces, being • ^^ street ; and that, after walkino; a short space with him, one of in company ' . ° i • i • • with the them stooped down and picked up a purse, which, upon inspection, was prosecutor, ^q^^^ [q contain a ring, and a receipt for 147^. purporting to be a re- 10 find a ceipt of a jeweller for " a rich brilliant diamond ring." The prisoner vRluable proposed that they should go to some public house to consider in what prosecutor manner their respective portions of this prize should be divided, and was to have they went accordingly. Various modes of distribution were then sug- ti re ° gested; and, at length, the prisoner asked the prosecutor if he would tended va- take the ring, and deposit his money and his watch as a security to re- liie ofit, ^^^^ jj. upon receiving his portion of its value. The prosecutor assented prevailed to this proposal ; and signed a written agreement, dictated by the pri- r.pon to de- goner, to the effect, that when the prisoner, or either of the other two \vatch, &c., men, returned the watch and money, and seventy pounds, he would re- and to take deliver to them the purse and the ring. The prosecutor then laid the tilYiniare 'watch and money in the indictment upon the table, and received the (,f the value ring. After which the prisoner beckoned the prosecutor out of the "!aid The ^'O'^'^j upon a pretence of speaking to him in private ; and during this accompli- interval the other two men went off with the property. The abrupt ics of the jnanner in which they went away make the prosecutor conceive that he TH'isoiier «/ *' i made off had been defrauded; but the prisoner told him not to be uneasy, for he with the knew the two men very well, and would take care that he should have ■ind^he 'his moncy and watch again. The prosecutor, however, secured the ring proved prisoner, who then made proposals to him to make the matter up. The application to the Court of King's Bench, to bail the prisoners, on the ground that the chiircre against them amounted only to a misdemeanor. Probably it would have been con- sidered as making an essential difference if the i-Tosccutor had been playing himself at the time, and had parted with his money under the idea that it had been fairly won. See Rex V. Nicholson, ante, p. 27. (a) Rex V. Robson and others. East. T. 1820. MS. Bayley, J., Russ. & Ry. 413. This difi'ered the case from Rex r. Nicholson, ante, p. 27. CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 46 ring was valued at ten shillings. Upon these facts it was objected, on to be of the behalf of the prisoner, that as the prosecutor had parted voluntarily ^f ten'shil- with his property, it was fraud only, and not felony. But the court ling.«. It referred it to the iury to consider whether the whole transaction was )!'*'''. '"^ •> •' _ tlie jury to not an artful and preconcerted scheme, in the three men, feloniously to ?ay whether obtain the prosecutor's watch and money; and whether the prisoner ^.'^'^ ^"?, , , , 11 • 1 1 tl""o with and the other two men were not ail in concert together to procure, by a precon- such a pretext, any man's money whom they might meet, and to cm- ccrtcd plan bezzle it; or, in other words, to steal it. And the jury found the pri- ,he watch soner guilty. (i) Ac., and The prisoner, II. Moore, was indicted for stealing twenty guineas nor'\va3°' and four doubloons, the property of John Field. The prosecutor was found walking along the street, when a stranger joined company *with him ; *47 and, after walking a little way in conversation ton;ether, the stranger f"'"^" ' ° . "^ . ° . ° Moure,s suddenly stopped, and picked up a purse which was lying at a door. omho. After they had proceeded about forty yards, the stranger proposed that ^^'''oro the they should go and drink a pot of porter, and sec what they had picked anced the up. The prosecutor was persuaded to comply , and they accordingly prosecutor went into a private room, in an adjacent public-house, where the stranger ^^ye,Jt,' " pulled out the purse, and from one end of it produced a receipt, signed guinea.s W.Smith, for 210/. "for one brilliant diamond cluster "ng," and ^°Jj^^°^^ from the other end he pulled out the ring itself. A conversation then by way of ensued upon the subject of their good fortune, during which the pri- P^'^'^se for , , 11- 1 1 • IP* counter- soncr entered the room ; when the ring was shown to him; and, alter feit jewel praising the beauty of its lustre, he offered to settle the division of its pretended value. The stranger lamented that he had no money about him, upon ,yitii intent which the prisoner asked the prosecutor if he had any. The prosecutor to steal tho replied that he had forty or fifty pounds at home, and the prisoner said wa"'h'olden that such a sum would just do. They all three then went to the pro- to bo lar- secutor's lodgings at Chelsea, where the prosecutor got the money ; and ''^^^' they then went to a public house in the neighbourhood, where the pro- . sccutor put down twenty guineas and four doubloons, which the stran- ger, in the presence of the prisoner, took up, and in return gave the prosecutor the ring; desiring that he would meet him at the same jilacc, on the next morning at nine o'clock, and promising that he would then return to him the twenty guineas and the four doubloons, and also give him one hundred guineas for his share of the ring. It was also appointed that the prisoner should be there, and agreed that the prose- cutor and the stranger should give him a guinea each for his trouble. Tho prisoner and the stranger went away together. The prosecutor at- tended the next morning pursuant to the appointment, but neither of the oilier parties came. The ring was of very trifling value. It was left with the jury to consider upon these facts, whether the prisoner and the stranger were not confederated together, for the purpose of ob- taining money, on pretence of sharing the value of the ring, and whe- ther he had not aided and assisted the stranger to obtain the money by (6) Patch's case, 0. B. 1782, cor. Gould, .1., Pcrnm, B., and Bullor, J., 1 Leach, 2.'^S. 2 Kast, P. C. c. 16, s. 107, p. 678. It appears that the court proceeded upon the authority of Pear's case [post, p. 50). And it appears that their opinion was founded on this, that the )iossession was obtained by fraud, and the property not altered ; for the prosecutor was to have it again ; and that, therefore, it was not like the case of goods sold on credit, where the buyer means iinnicdiatel}' to convert them into money, and is not al)le, nor intends to pay for tiicm ; for there the buyer gets the absolute property by the act and consent of the owner. 2 East, P. C. c. 16, s.l07, p. 679. 47 OF LARCENY. [bOOK IV. the means which were used for that purpose. Aud the jury being of opinion he was so confederated with the stranger, and aiding and assist- ing him, found the prisoner guilty, subject to the opinion of the judges, whether the offence amounted to felony. The case being submitted to their consideration, aud eleven of them being present, the majority (nine of them) were of opinion that the guineas and the doubloons were deposited in the nature of a pledge, and not as a loan ; so that, though the 2>ossessi.ou \f 0.3 parted with, the jjrojierfi/ was not; (more especially as to the doubloons, which the prosecutor clearly understood were to be returned the next day in specie,) and therefore as the prisoner had obtained them with a fraudulent intent to apply them to his own use, the offence became felony, from the intention ivitli which he gained the possession. And they also held that, as the prisoner and his com- panion were acting in concert together, they were e([ually guilty. The other two judges thought that the doubloons were to be considered as money, and that the whole was a loan on the security of the ring, which the prosecutor believed to be of much greater value than the money he advanced upon it, and that therefore he had voluntarily part- *48 ed with the propcrti/, as well as the possession. And they *said that when money was delivered by a man on such an occasion, it was not in his contemplation to have the same identical money back again. (c) Watson's The prisoner, J. "Watson, was indicted for stealing several bank notes case. The ^f ^{jg yalue of 100?., the property of J. Smith, in his dwelling-house, induced a against the 12 Anne, c. 7, (now repealed.) M. Smith, the prosecutor's person to -R-ifc, stated, that as she was going along the street the prisoner stooped bank notes down, picked Up a small parcel, and said that he had got a prize : upon to him, by which she cried, <' Halves," and said that it was usual to give half of rhiq^cb^op°- w^^* ^^s found. They went together into St. James's Park, where ping, and they examined the parcel in the presence of another man, (who ap- usual peared to be an accomplice of the prisoner's,) and found in it a locket agreement with a large stone, and a paper purporting to be the receipt of a jewel-. that the igf fQj. 250?. for a diamond locket. The prisoner said his name was notes should be Smith, that he was the captain of a ship, and that he would go to a returned, friend's house, where his cargo was, and bring 100?. towards paying the value of witness her share. He went accordingly, was absent about fifteen min- the jewel utes, and when he returned, he said that his friend was not at home. Held to "be -^^t^r some further proposals respecting the disposal of the locket, it larceny. was at length agreed between them, that the locket should be left in the custody of the witness, and that she should deposit 100?. in the pri- soner's hand as a security to return him the locket the next morning; at which time she was to receive from him half the value of the locket, as mentioned in the receipt found; and she was to have the 100?. depo- sited in the prisoner's hands, as such security as aforesaid, returned back. They then went to the witness's house, where she procured bank notes to the amount of 100?. and laid them on the table, and the prisoner took up the bank notes, said that they were right, and that he (c) Moore's case, 0. B. April Sessions, 1'784. 1 Leach, 314. 2 East, P. C. c. 16, s. 107, p. 679. In Marsh's case, 0. B. October Session, 1784, 1 Leach, 345, a similar question was reserved ; and afterwards the prisoner was informed that as his case was exactly similar to that of Moore, and no ground either in law or in fact, for making any distiction between them, the judges had declared their oi)inion that the taking amounted, to a felonious taking ; and the prisoner was sentenced to be transported for seven years. CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 48 would call the next morning and settle the whole. He then delivered up the locket, went, off with the notes, and never returned again. The locket was only of the value of five shillings and sixpence. Upon this evidence the prisoner was convicted of the simple felony, in steal- ing the notes : but a case was reserved for the opinion of the judges upon the objection that this was only a fraud, and not a felony. All the judges held the conviction proper.(<'/) But where on an indictment against Wilson and Martin for stealing But if in a bl. note and two sovereigns, the prosecutor said, "I saw Wilson on a *'"'^'* a case road. Wilson pointed to the ground, and said, 'there is a purse.' lie cuitorpart picked it up. I said, 'AVe had better have it cried, as some one may with tho own it.' lie replied, 'Some one to whom it does not belong may say ™",ji,^V "o it is his, and get it from us.' We walked on, and I said 'We had bet- have tho tor see what the purse contains.' lie replied, ' Not *here, as there are 1'!''"^'';^ , men at work who will sec us. We went about twenty yards further, sell them, and Wilson opened the purse and took out what appeared to me a gold 1| ^^ ^'>^ watch chain and two seals. lie said he did not know the value of ^ .,' them, but there was a gentleman on the other side of the road who could probably tell us. This was the prisoner Martin. The things were shown to him, and he said he was in the trade, and asked how we came by the articles. I said we had found them. Martin then said, it was a very prime article, and worth 14^., and that we should divide it between us; and he added, that as we found it on the road it belonged to us and no one else. Wilson said he would take the things to his master, but the other prisoner said he had no right to do so; and he also said, that if I would buy the other man's share he would give me 18A for the articles, and get a good profit for himself besides. He added, that he was the brother of Mr. Button, the watchmaker, whom I knew. Wilson had gone on a little way, when he was called back by the other prisoner, who asked him if he would take 11. for his share. This he agreed to do. I gave him a 5?. note and two sovereigns, and took the chain and seals ; which were proved to be worth only a few shillings." For the prosecution, Moore's case,(e) and Rex v. llnb- son,(f-e) were cited. Coleridge, J., " In Moore's case, nine of the judges thought that the money charged to have been stolen was given as a pledge, so that the possession of it only was parted with by the prosecutor and the property not. In this case the prosecutor intended to part with the money for good and all, and to have the articles. If the party meant to part with the property in the money, as well as the possession of it, I am of opinion that it is no larceny. Here the pro- secutor meant to part with his money for ever. In Rex v. Robson, the party had only the possession of the money given to him as a stake- holder. AVhen this prosecutor parted with his 11. he never intended to have it back again, but meant to sell the chain and seals for himself. The prisoners must be acquitted. "(/) (d) Watson's case, 0. B. 1794. 2 Leach, 640. 2 East, P. C. c. 16, s. 107, p. 680. The case was disposed of by the judges in lliL T. 1795, when upon the supposition that the ver- dict had been taken for the capital ofTencc of stealing in the dwclling-jiouse, (which at first ■\sas thought to have been the case) the judges all expressed their opinion that as the notes were in the possession of the prosecutrix, and derived no protection from the house, the case did not fall within the 12 Anne, c. 7, (now repealed). See ante, vol. 1, p. 856. (<■) Ante, p. 48. [ee) Ante, p. 45. (./■) Keg. V. Wilson, 8 C. & P. 111.' The prisoners were afterwards tried and convicted for a conspiracy. » Eng. Com. Law Reps, xxxiv. 317. 49 OF LARCENY. [BOOK IV. Persons If several act in concert to steal a man's goods, and he is induced by acting m tjoaccrt. fraud to trust one of them in the presence of the others with the pos- session of the goods, and then another of the party entice the owner away, in order that the party who has obtained such possession may carry the goods away, all will be guilty of felony, the receipt by one under such circumstances being a felonious taking by all. Standley, Jones, and Webster, conspired to get some money from M'Laughlin, and they pretended that he could not produce 100?., upon which he produced it in notes, which Jones took to count and afterwards handed, to Standley, and Standley and Webster pretended to gamble for them. •Jones then beckoned M'Laughlin out of the room, and Standley and Webster immediately decamped with the money, and all the three after- wards shared it. Upon a case reserved, the judges were unanimous that this was larceny in all the three. (r/) In another case. County and Donovan planned to rob the prosecutrix of some coats, and County got her to go with him that he might get some money to buy them of her, "^50 and she left the coats with Donovan who *immediately absconded with them; and, upon a case reserved, the judges held the receipt by Dono- van to be a felonious taking of the coats by both. "(A) Pears case. The following is a case which, upon its being submitted to the consi- le pnso- ^gi-ation of the iud<>;es, underwent a 2;reat deal of discussion. The pri- ner uireu a °. . . liorse on soner, J. Pear, was indicted for stealing a black mare, the property of the pre- g_ piQ^h. It appeared in evidence, that the prosecutor was the keeper tiikiug a of a livery stable in the borough, and that the prisoner on the 2d of journey, July, 1779, hired the mare of him, for the day, to go to Sutton in Sur- immedi- I'^y, and back again ; and, upon being asked where he lived, said that ately after- hg lodged at No. 25 in King street, and that he should return about Tl'^ The eight o'clock in the evening. He did not return as he had promised ; jury in consequence of which the prosecutor went nest day to inquire for thatft w ^"^ according to the direction he had given, but could not find any such hired with pcrson. It turned out that the prisoner sold the mare on the afternoon the inten- ^f ^j^g same day on which he hired it, in Smithfield market. The learned tion of 1111- • 1 1 i> • 1 • stealing it, judge, by whom the prisoner was tried, Jeit it to the jury to consider, and found -vyhether the prisoner hired the mare with the intent of taking the jour- ner guilty ^'^J which he mentioned, and afterwards changed that intention ; and of larceny, directed them that, if they were of opinion that he did so, they should ve°rdict^was ^-cquit him, as in such case the mare must have been sold while the approved of privity of contract subsisted : but he directed them to find the prisoner ritv^of the" S^^^^J ^^ ^^^^ ^^^J "were of opinion that the journey was a mere pretence judges after of the prisoner's to get the mare into his possession, and that he hired great dis- j^gj. ^jj-j^ g^^ intention of stcalino her. The iury found the prisoner CUSSlOn. . . ^ r 1 • • /. 1 • 1 guilty, and the point was reserved tor the opinion oi the judges. The judges, after mature deliberation, differed very considerably as to the law of this case. One of them held that it was not felony at common law ; because there was no actual taking of the mare by the prisoner. Three others, though they thought that the offence would clearly have been felony by the common law, entertained considerable doubts in consequence of the statutes 33 Hen. 8, and 30 Geo. 2, relating to the offence of obtaining goods by false tokens or false pretences, which statutes made such offences punishable as misdemeanors only. (g) Rex. V. Standley. East. T. 1806, MS. Bayley, J., Russ. & Ry. 305. (A) Rex V. County, East. T. 1616, MS. Bayley, J. CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 50 But seven of the judges were clearly of opinion that the ofTeucc was felony. (A They held that the obtaining possession of the mare, and afterwards disposing of her in the manner stated, was in the construc- tion of law such a taking as would have made the prisoner liable to an action of trespass at the suit of the owner, if he had not intended to steal her; for she was delivered to the prisoner for a si)ecial purpose only, namely, to go to Sutton, which he never intended to do, but imme- diately sold her. That in this light the case would be similar to what was laid down by Littleton, sec. 71, who says, '< If I lend to one my sheep to dung his land, or my oxen to plough the land, and he killeth my cattle, I may have trespass notwithstanding the lending." That if in such a case trespass would have lain, there could be no doubt but that in this case, where the felonious intent at the time of obtaining the possession, was found by the jury, it was felony by the common law.(,/) *Tlie prisoner, G. Charlewood, was indicted for stealing a bay geld- *^1 ing, the property of J. Houseman. The prosecutor was a livery stable Charle- kecper in Crown-street, Soho ; and on the 4th October, 1785, the pri- ^^"^"'^ * _,. soner, who was a post boy, applied to him for a horse, in the name of a prisoner Mr. Eley, sayiu";, that there was a chaise going to Barnet, and that Mr. »'>t'"n«cl » ^^, •"/,*=' 1 , • 1 horse un- Jiiley wanted a horse to accompany the chaise, to carry a servant, and j^r pre- to return with the chaise. The gelding described in the indictment was tp"co of accordingly delivered to him by the prosecutor's servant. The prisoner ^.11^'"^ ' mounted the horse; and, on going out of the stable yard, and meeting journoy, a friend of hi.'^, who asked him where he was going, he said that he was "^j^'^.r^^vards going no further than Barnet. He accordingly proceeded towards Tot- sold it. tenham-court lload, which leads to Barnet, and also, though in some ?'*-'''* ^^ ^° degree circuitously, to Mr. Eley's house. This transaction took' place thf jury, about nine o'clock in the morning ; and between three and four o'clock f""'ti"g "" in the afternoon of the same day, the prisoner sold the gelding in Good-"t'y!^"il,o man's fields, for a guinea and a half, including the bridle and saddle, horse ntilio The horse appeared to have been ridden very hard, and his knees were i,i'|!^u" it broken very badly. The purchaser almost immediately disposed of his bargain for fifteen shillings. On putting this case to the jury, it was stated by the court, that the judges in Pear's case, under circumstances similar to the present, had determined, that if a jury be satisfied, by the facts proved, that a person, at the time he obtained another's property, meant to convert it to his own use, it is felony. That there was, how- ever, a distinction to be observed in the present case, though so nice a one as possibly not to be obvious to common understandings. It was this; that if it appeared to them, that the prisoner at the time he hired the hor.^c, for the purpose of going to Barnet, really intended to go there, but that, finding himself in possession of the horse, he afterwards formed the intention of converting it to his own use, instead of proceeding to the place to which the horse was hired to go, it would not amount to a felonious taking. The jury found the prisoner guilty, on the ground (t) It is stated also, that Blackstonc, J., the twelfth Judpc, who was absent on a - count of illness, always held that it was felony. 2 East, P. C. c. \G, s. 112, p. 68(J, iu thi note. {j) Pear's case, 0. B. 1119. 1 Leach, 212. 2 East, P. C. c. IG, s. 112, p. 685, in which latter work, the judirmcnt (which is stated to Iiave been settled and approved by several of the judges before it was delivered) is given at large. OF LARCENY. [eOOK IV. that he intended to steal the horse at the time he hired it ; and he was afterwards executed.(/i;)f Spence's The prisoner was indicted for horse stealing. It appeared in evidence case. The t}jat the prisoner came to the prosecutor's house, and asked him if he let steal must horscs out to hire, and if he could have one. The prosecutor answered, be at the Yes ! He had a little mare, which he could have, and asked him what hirhi"- ^distance he was going. He replied to Stockport, a distance of between six and seven miles. The prosecutor then saddled and bridled the inare, and asked the prisoner for his address, the prisoner wrote on a slate, which the prosecutor kept for that purpose, as follows : — " Mr. Pope, Cannon-street, 24." The prisoner then begged the prosecutor to accompany him to the Crown Inn, which he did, and then the prisoner mounted the mare and rode away. The prosecutor did not know ^52 whether a person of the name of Pope lived *in Cannon-street or not. The prisoner was apprehended at Bury, in an opposite direction to Stock- port, and distant from it sixteen miles. It was Bury fair-day for cattle and horses, the prisoner offered the horse for sale for bl., and at the same time said it was his. Bay ley, J., told the jury, " If a person gets pos- session of a horse by hiring, meaning at the time not to use it for the purpose for which he states he hired it, but to endeavour to make it his own, he is guilty of stealing. In these cases, the guilt or innocence of the party depends upon what jjassed in his mind at the time, and this is to be inferred from circumstances; if you find, that, instead of going to the place where he stated he was going, he went elsewhere, it raises a presumption that he meant to deprive the original possessor of the Arm- horse." (Z) So where on a similar indictment it appeared that the pri- strong's soner borrowed a pony from the prosecutor to ride a short distance and return, but he did not return, nor did he send the pony ; and some years after the prosecutor met the prisoner by accident, and took him into custody ; Holroyd, J., said, <' If the prisoner obtained the pony with a preconcerted fraudulent design in respect of stealing it, it is a felony. If Vicar's he did not do it with a fraudulent design originally it is not a felony." (m) case. gQ ^here on a similar indictment it appeared that the prisoner went to the house of the prosecutor, and told him that his father had sent him to borrow a horse for three weeks, and the prosecutor being ac- quainted with the prisoner's father, dispatched him with the horse agreeably to the supposed request, and the prisoner having got pos- session of the horse by means of the above story, sold it; Parke, J., held this to be a clear stealing, the prosecutor not having parted with it out and out.(^?«) Sample's Major Semple was indicted for stealing a post-chaise, and the follow- case. The ing facts were proved in support of the charge. The prosecutor, Mr. obtained a I'ycett, was a coachmaker, who let out carriages to hire. The prisoner post- was a gentleman who lodged in the neighbourhood under the name of cas {k) Charlewood's case, 0. B. 1786. 1 Leach, 409. 2 East, P. C. c. 16, s. 112, p. 689. Another point was submitted to the consideration of the jury as to a felonious taking after the prisoner's return to London, and the end and purpose of hiring the horse being deter- mined; but as to this, see Rex v. Banks, j:>os<, p. 57. (/) Spence's case, 1 Lew. 187. (;«) Armstrong's case, 1 Lew. 195. (n) Vicar's case, 1 Lew. 199. \ {If a miller, having received an article to grind, fraduleutly separate a part of it from the rest, for his own use, the bailment is thereby determined, and the conversion to his own. use of the part so separated, animo furandi, is larceny. 1 Pick. 375, Commonwealths. James.} CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 52 Major Harrold, and had sometimes hired carriages from the prosecutor, el>ai.se, by as he had occasion for them, and had paid for them with punctuality, jnteiu'to On the first of September, 1785, the prisoner hired a post-chaise of the convert it prosecutor, saying, that he should want it for three weeks or a month, „gy'."ij|i'j "^ as he was going a tour round the North. It was agreed that the prisoner was hoi. » Eng. Com. Law Reps. xix. 519. >> Ibid. xxiv. 443. •= lb. xxxii. 52C. 61 OF LARCENY. [BOOK IV. Abstracting Upon an indictment for stealing two half sovereigns, it appeared that icu'erl ^""^ *'^*2 prosecutrix asked the prisoner, who was not her servant, but only a casual accjuaintance, to put a letter in the post for her, telling her at the same time that it contained two half sovereigns, for the purpose of paying a bill; the prisoner abstracted the money by breaking the seal of the letter before she put it in the post; Mirehouse, C. S. (after con- sulting Gaselee, J.,) said that in his opinion, and, in that of the learned judge, it was larceny.(a) So where, on an indictment for stealing bank *62 notes, it appeared that the prosecutor *gave the prisoner, who was not his servant, a parcel containing the notes to take to the Bull and Mouth Inn, to be sent to Nottingham, and the parcel arrived, but without the notes in it, and two of the notes were afterwards found at the prisoner's lodgings. It was contended for the prisoner, that as he was not the servant of the prosecutor, there was no trespass, and, therefore, there was no larceny, and that the cases as to breaking bulk were all cases of carriers ; but the court were of a contrary opinion, and held that as the parcel must have been opened and the notes abstracted, it did amount to larceny, (ij common law, lar- ceny can SECT. II. Of the Personal Goods in respect of xohich tlie offence of Larceny may he com7)iitted.-f In pursuing this part of the inquiry respecting the offence of larceny, there seem to be three points which more particularly require conside- ration; I. Whether the goods taken were in any way part of the free- hold ; II. Whether they consist of toritten instruments; and III. Ey the Whether they consist of animals, birds, or fish. I. By the common law, larceny cannot be committed of things which savour of the realty, and are, at the time they are taken, part of the not be com- j'reehold ; whether they be of the substance of the land, as lead or other /hino-s that minerals ; of the produce of the land, as trees, corn, grass, apples, or are part of other fruits ; or things affixed to the land, as buildings, and articles, hok/^^" such as lead, &c., annexed to buildings, (c) The severance and taking of things of this description is, at common law, only a trespass. One reason for which doctrine, (though it does not apply to the whole of the articles which have been enumerated) is said to be, that things which are a part of the freehold, being usually more difficult to remove, are less liable to be stolen :((?) possibly also, the doctrine may have pro- ceeded upon certain subtilties in the legal notions of our ancestors ;(e) and it may perhaps in some measure have originated in the greater security from private depredations of the things which were part of the (a) Rex I'. Jones,^ 7 C. & P. 151. {h) Reg V. Jenkins,'' 9 C. & P. 38, Gurney, B., and Bosanquet, J. See Reg. v. Heath, ante, p. 34. {c) 3 Inst. 109. 1 Hale, 510. 1 Hawk, P. C. c. 33, s. 33. Bac. Ab. tit. Felony (A). 4 Bla. Com. 232. 2 East, P. C. e. 16, s. 27, p. 587. {(l) 1 Hawk. P. C. c. 33, s. 34. 2 East, P.O. c. 16, s. 27, p. 587. (e) 4 Bla. Com. 242. f {See 2 Stark, Ev. 829. [new ed. 444] and American cases there collected.] * Eng. Com. Law Reps, xxxii. 562. ^ Ibid, xxxviii. 27. CHAP. IX. § II.] THEFT. — THINGS PART OF THE FREEHOLD. 62 freehold, than of those which were merely personal, in the earlier times, when articles of provision and other personal chattels (frequently the most valuable) were carried from place to place by the individual ten- ants, in that attendance in the camp which was exacted by their mili- tary tenures, (y") But things, though they savour of the reality, may become the sub- T3ut they jects of larceny by being severed from the freehold : thus, if stones be ^<'|'?°^® dug out of a quarry, wood be cut, fruit be gathered, or grass be cut, larceny, by larceny may be committed of them. (7) And this will be the *case not^'^'^Kse- only where they have been severed by the owner, but also by tlie thief */^o himself, if there be an interval between his severing and taking them away ; so that it cannot be considered as one continued act. If there- fore the thief sever them at one time, whereby the trespass is completed, and they are converted into personal chattels in the constructive posses- sion of him on whose soil they are loft or laid, and come again at another time when they are so turned into personalty and take them away, it is larceny.(7i) Thus though "if a thief severs a copper, and instantly carries it ofi", it is no felony at common law ; yet if he lets it remain, after it is severed, any time, then the removal of it becomes a felony, if he comes back and takes it : and so of a tree which has been some time severed. "(A This being the common law, and many of the descriptions of property Statutes^ which come within this notion of a connection with the freehold beinor "^"^'i"^^* o penal to thereby placed in a very precarious and unprotected situation, the legis-tukewrong- lature from time to time interfered for their protection, and made the ["'^^ things wrongful taking of them in some instances felony, and in others a minor part of the offence, punishable by summary proceedings before a magistrate. These freehold, provisions are for the most part amended and consolidated by the 7 & 8 Geo. 4, c. 29. The 37th section of which enacts, " that if any person shall steal, or Stealing sever with intent to steal, the ore of any metal, or any lapis calaminaris, f™"" *^*^'" manganese or mundick, or any wad, black cawkc, or black lead, or any coal or cannel coal, from any mine, bed, or vein thereof respectively, every such oflfender shall be guilt}' of felony, and being convicted thereof shall be liable to be punished in the same manner as in the case of simple larceny ."(.;) By sec. 44, " if any person shall steal, or rip, or cut or break with Stealing intent to steal, any glass or wood work belonmnsr to any buildins; what-^'""°f "°" , , . o a J o nexed to soever, or any lead, iron, copper, brass, or other metal, or any utensil or buildings, fixture, whether made of metal or other material, respectively 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, street, or other place dedicated to public use (/) Bac. Ab. tit. Felony (A). («/) 3 Inst. 109. 1 Hale, 510. (A) 1 Hiuvk, P. C. c. 33, s. 34. 4 Bla. Com. 233. 2 East, P. C. c. 10, s. 27, p. 587. And so ia 1 Hale, 510, it is said, " But if a man come to steal trees, or the lead of a church or house, and sever it, and after about an hour's time, or so, come and fetch it away, this hath been held felony, because the act is not continued but interpolated, and in that interval the property lodgeth in the ri where the prisoner was indicted for stealing a '< window casement tutcs. made of iron, lead, and glass," the property of the benchers of the *64 Middle Temple,, fixed to a certain building situate in *Elm-court, it was holdcn that the case was not within the acts. The court said, that the statutes, amongst the several articles which they enumerated, did not mention " a casement," and that as the statute 21 Geo. 3, c. 68, was made to remedy the defects of the 4 Geo. 2, c. 32, which mentioned every specific article by name, the words " any copper, brass, bell-metal utensil, or fixture," were to be taken as substantive nouns, and not as descriptions of the sorts of fixtures which the legislature intended to protect. (z') Such an offence, however, would be clearly within the pro- visions of the recent statute upon an indictment properly framed. Whcro tlio In a case where the prisoner was indicted on the repealed statute, 4 rT^bT" ^^^' ^' ^* ^^' ^^'^ stealing two hundred weight of lead, fixed to a house cd fraudu- and building, the facts were, that the house in question being to be let, lent posses- ^]^q prisoner, giving a false description of his situation in life and his house upon place of residence, obtained possession of it, under a treaty for a lease of an agree- it for One and twenty years, which was agreed to be executed : and, in a lease amf ^^'^ ^^^^ ^^^^^ ^'^^ ^^'^ s° obtained possession of it, stripped it of the lead stripped it on the roof, and of the leaden pipes, &c. The jury said that they were of the lead-Q£ opinion that he had entered into the contract for the purpose of get- Ac, it was ting a fraudulent possession of the house, and found a verdict of guilty: holdento ^^^ upou the case being reserved for the opinion of the judges, though the 4 (reo. HO opinion was publicly delivered, the prisoner afterwards was sentenced 2, c. 12. to pav a fine of a shillinfr, and to be imprisoned for two years in the now re- , ^ -^ „ .- f , pealed. house 01 correction. (^??i) A church A church was held to be a building within the 4 Geo. 2, c. 32, and was held to ^^^ indictment for stealing lead afiixed thereto need not to have stated the buildinn- person to whom the property or the freehold belonged. The first count within charged that the prisoner 150 pounds weight of lead belonging to the 32 'and an ^^v* ^- ^r-j then and there fixed to a certain building, called Hendon indictment Church, of the Said C. G., then and there did steal, &e. The second J f*^*^^^'"|count stated the property as belonging to the church-wardens by name, to it, need and as fixed to a certain other building, called Hendon Church, of the not state to gj^j^ church-wardens : upon a case reserved, the iud£i;es were unanimous whom the . . . . lead bo- that a church was included within the words " any building whatso- longed. ever." And regarding the person or persons in whom the property or the freehold of the church by law resides, a majority of the judges were UJ) Ante, p. 2. [k) The Irish Act, 9 Geo. 4, c. 55, s. 37, is verbatim the same, with a proviso that it shall not affect the punishment under the Irish Paving Acts. (/) Seniors case, 0. B. 1788. 1 Leach, 496. 2 East, P. C. c. 16, s. 31, p. 593. The prisoner was afterwards indicted for a similar offence, before Wilson, J., and acquitted upon the authority of this determination. In a former case, Rex v. Hedges, 1 Leach, 201. 2 East, P. C. c. 16, s. 30, p. 590, note (6), the question appears to have turned upon whether the window sashes stolen were fixed to the freehold, which was ruled in the negative, upon the facts of the case, which showed that they were only attached by a temporary fastening. (/«) Munday's case, 0. B. 1799. 2 Leach, 850. 2 East, P. C. c. 16, s. 31, p. 594. CHAP. IX. § II.] THEFT. — THINGS PART OF THE FREEHOLD. 64 of ODinion, that the first count charging that the lead was stolen from the parish church of Ilendon, and laying it to be the property of the vicar, was sufficient to support this indictment. It was also thought by many of the judges, that as this statute had made the stealing lead from any building a felony, the averment that the lead was stolen from a cer- tain building called llendon Church, was of itself a description of suffi- cient certainty, and that the further averment in whom the property resided was immaterial and unnecessary ; the allegation that it was affixed to a building, describing the sort of building, and that the building, •whether *G5 church or house, belonged to such a person, being all that the law in such a case required ; and that the allegation as to the property might be rejected as surplusage. (7h) A summer-house, used occasionally for tea and refreshment, situate r.uii. lings in a park, at the distance of half a mile from the dwelling-house, was g\!|JuJJ.3'"* held to be a building within the 4 Geo. 2, c. 32. (?i) Upon an indictment for stealing two pieces of wood fixed to a certain building, it appeared that the place was intended for a cart-shed in a field, and that on all its sides it was boarded up, except where there was a door which had a lock to it ; it had a wooden frame-work for a roof . ready for thatching, but it had no thatch, some gorse being thrown on it ; and Littledale, J., held that this was a building within the 7 & 8 Geo. 4, c. 29, s. 44. (o) But where on a similar indictment for stealing a plank, it appeared that the plank was used as a seat in the grounds of the Duke of Beau- fort, and that there was a wall, and pillars at the ends of it, and that the plank was laid in mortar on the top of the wall and pillar, and there was no roof; Park, J. A. J., held that this was not a building within the meaning of the act.( j*) It seems that a churchyard is a place dedicated to public use within Fixture? in the meaning of this section, and therefore stealing fixtures out of '"i yards'" churchyard is punishable under this section. Upon an indictment for" receiving stolen brass, which alledgcd that one E. Smith had been con- victed of stealing the brass fixed in the churchyard at M., that being a " place dedicated to public use," evidence was given that the brass was fixed into many of the tombstones in the churchyard : and it was objected that the words " other place dedicated to public use and orna- ment," meant places ejusdcm (jcncris with "square" and "street." Bosanquet, J., " This statute, which is rather peculiarly worded, makes it an offence to steal brass fixed in any square, street, or other place dedicated to public use or ornament; and I think that a churchyard is a place of that kind within the meaning of this act. If the prisoner is convicted I do not say that I will reserve the point, but I will take it into further consideration." The prisoner was acquitted. (j) (m) Rex V. Ilcckman, 1 Leacb, 318, S. C. 2 East, P. C. c. 16, s. 31, p. 593, BuUer, J., thought that charginj^ the lead to be property was absurd and repugnant ; property in this respect being only appliciiblc to personal things, and that it should only be charged to be lead affixed to the churcli, or to a house belonging to such a person. See Rex i'. Isley, 1 Leach, 320, note (rt), S. P. In a previous case it had been held that lead afhxed to a churcli could not be laid as the property either of church-wardens, or of the inhabitants and par- ishioners. Rex V. Parker, and Easy, 2 East, P. C. c. 16, s. 31, p. 502. (n) Rex t'. Norris, Russ. & Ry. 69. (o) Rex v. Worrall,' T C. & P. 516. Ip) Rex V. Reece, Monmouth,' Lent Ass. 1828, MS. C. S. G. (7) Rex V. Blick,!' 4 C. & P. 377. » Eng. Com. Law Reps, xxxil. 609. ^ lb. xix. 428. 65 OF LARCENY. — WHAT GOODS SUBJECT OF [book IV. *G6 la a previous case, where the prisoners were iudicted for receiving brass, knowing it to have been stolen, and it was proved that the brass had been a plate afl&scd by rivets to a tombstone in a churchyard, and that the tomb was formed of one flat stone at the top, which was sup- ported by others beneath ; Vaughan, B., at fii-st said, " The words of the act are very general, and I think extend to every kind of building, and I think that this kind of tomb may be said to be a building." But on being referred to Rex v. Reece, he expressed doubts whether the tomb could be considered as a building within the meaning of the act. It was then urged that the case came either *within the words, " any- thing made of metal fixed in any land being private property," or a "place dedicated to public use or ornament;" and Vaughan, B., in- clined to think the latter words sufficiently general to include this case; and the prisoners having been found guilty, he postponed the sentence, in order to consult Park, J. A. J. ; and the prisoners were afterwards sentenced without any further notice being taken of the point, (r) The ownership of the building from which the fixture is stolen must be correctly laid in the indictment. If therefore A. and B. are sepa- rate tenants of different rooms in the same house, an indictment describ- ing a pipe, passing by the side of both rooms, as fixed to the dwelling- house of A. and B., is incorrect. Upon an indictment for stealing six feet of copper pipe fixed to the dwelling-house of E. Drumme and S. Allen, it appeared that the bouse consisted of two rooms, one on the ground floor, and the other up one pair of stairs : one was in the occu- pation of Drumme, the other of Allen, as separate tenants to the same landlord. The pipe was placed for bringing down the water from the roof, and descended perpendicularly, passing on the outside of and against both rooms, part against the ceiling of each room. The jury having found the prisoner guiky, the question whether the house was properly described was submitted to the judges, who were unanimously of opinion that the conviction was bad.(s) The words " anything made of metal fixed in any land being private property," are so much larger than the woi'ds " fixed in any garden, The own- ership of the build- ing must? bo correct- ly stated. The words of the 7 & 29 much ' orchard, court-yard, fence, or outlet belonging to any dwelling-house or larger tjian other building" in the repealed act, 4 Geo. 2, c. 32, that they would to be those of the i Geo 2 c seem to include a case like the following, which was held not 32. within the 4 Geo. 2, c. 32. Upon an indictment framed upon that statute, it appeared that the lead stolen consisted of three images, which were standing on three pedestals, to which they were fastened with irons, and the pedestals were fixed in the ground. The images were standing near a building in an enclosed field, about half a mile from the dwelling-house of the prosecutor; the building was occasionally used as a tea-drinking place, and had doors and windows, the doors opened into a place where the images stood ; and it was held that this case was not within the repealed statute, this being no outlet or garden belonging to any house or building. (<) Upon an The statute does not make the offence of stealing fixtures a larceny, indictment and consequently, upon an indictment for stealing fixtures, the prisoner fixtures ^"^^ cannot be convicted of a larceny, if it appear that at the time he took the priso- the fixtures they had been severed from the building. Upon an indict- (r) Rex V. John and Daniel Jones, Gloucester Spr. Ass. 1828, MS. C. S. G. Such cases ■were not within the repealed statutes. See John Davis's case, 2 East, P. C. c. 16, s. 31, p. 593. (s) Rex V. Finch, R. & M. C. C. R. 418. (t) Rex v. Richards, Russ. & Ry. 28. CHAP, IX. § II.] THEFT. — THINGS PART OF THE FREEHOLD. ' Q^ ment for stealing lead affixed to a buildinpr, the only evidence was, that ncr cannot the prisoner was seen to take the lead Avheu it was Ivinjx at the distance ? f°?" „ ' . . , J K> victeu of of a quarter of a mile from the building, from which it had been cut, larceny, and the jury found the prisoner gviilty of stealing the lead when lying severed, but not of stealing it when fixed; and the following morning Tindal, C. J., said that he had looked into the cases, and conferred with Mr. J. Vaughan, and that he was satisfied the prisoner could not be found guilty of a *siraple larceny upon this indictment, and directed a *67 verdict of not guilty to be entered. («) So also if a person steal fixtures in one county and carry them into another county, he cannot bo indicted for simple larceny in the county into which he carries them.(t') By the 45th section of the 7 & 8 Geo. 4, c. 29, for the punishment of 7 & g Geo. depredations committed by tenants and lodgers, it is enacted, 'Uhat ifJ.c 29, s. any person shall steal any chattel or fixture let to be used by him or her j^ ' jjj^^lgg in or with any house or lodging, whether the contract shall have been or fixtures entered into by him or her or by her husband, or by any person on *° n^d" behalf of him or her or her husband, every such offender shall bo guilty lodgers. of felony, and being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny ■,{iiv\ and in every such case of stealing any chattel, it shall be lawful to prefer an indictment in the common form as for larceny, and in every such case of stealing any fixture, to prefer an indictment in the same form as if the offender were not a tenant or lodger, and in either case to lay the property in the owner or person letting to hire."(x) The statutes passed for the better preservation of tiniber t7-ees, j^^ants, shrnhs, and other articles, which are the produce of the land, have been consolidated in the 7 & 8 Geo. 4, c. 29. The thirty-eighth section of that statute enacts, " that if any person 7 & g Geo shall steal, or shall cut, break, root up, or otherwise destroy or damage, 4, c.29, s. Avith intent to steal, the whole or any part of any tree, sapling or shrub, ?^; Steal- er any underwood, respectively growing in any park, pleasure-ground, shrubs, Ac. garden, orchard, or avenue, or in any ground adjoining or belonging to S'"°^!"S ii^ any dwelling-house, every such offender (in case the value of the article yUuations, or articles stolen, or the amount of the injury done, shall exceed the f'-'lonyiftbo sum of one pound) shall be guilty of felony, and being convicted thereof, ^^^j^ y' shall be liable to be punished in the same manner as in the case of simple larceny ;(^) and if any person shall steal, or shall cut, break, stealing root up, or otherwise destroy or damage with intent to steal, the whole trees, or any part of any tree, sapling, or shrub, or any underwood respectively ■'. shall be guilty of felony, and, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny ."(s) It has been held that young pear-trees about seven feet high are Meaning of " trees" within the meaning of this section ; and that the word " adjoin- the terms (?/) Reg. V. Gooch,» 8 C. & p. 293. It was held under the repealed act, 4 Geo. 2, c. 32, that Judgment for petit larceny might be given on an indictment for stealing Ic.id, where the prisoner was found guilty to the value of ]0) 7 •;•) It has been observed that written instruments which concerned mere Chosen in choses in action, as being of no intrinsic value, and not importing any '*'''"'"• property in possession of the party from whom they were taken, were not at common law the subjects of larceny ;(«) which offence can be committed only in respect of goods which have some worth in them- selves, and do not derive their worth merely from their relation to some other thing. (<) But the legislature found it necessary to interfere upon (r) Rex V. John,* 7 C. & P. 324. (rr) The Irish Act, 9 Geo. 4, c. 55, s. 21, contains similar provisions to these, and al.?<) .=;ome others. (.<() Ante, p. 70. (t) 1 Hawk. P. C. c. 33, s. 35. 2 East, P. C. c. 16, s. 36, p. 597. » Eng. Com. Law Reps, xxxii. 526. 73 OF LARCENY. — WHAT GOODS SUBJECT OF [BOOK IV. this subject, and make the stealing of choses in action in many instances an offence of the degree of felony, (w)"}- 7 & 8 Goo. The 7 & 8 Geo. 4, c. 27, s. 5, enacts, " that if any person shall steal t, c. 29, s. j^j^y tally, order, or other security whatsoever, entitling or evidencing s'toalinf the title of any person or body corporate to any share or interest in any public or public stock or fund, whether of this kingdom, or of Great Britain, or ^"^'^W"" of Ireland, or of any foreign state, or in any fund of any body corpo- curities for ^''^**^> company, or society, or to any deposit in any savings' bank, or money, or shall stcal any debenture, deed, bond, bill, note, warrant, order, or fo^goods other security whatsoever, for money, or for payment of money, whether shall bo fe- of this kingdom, or of any foreign state, or shall steal any warrant or lony, and qj-^q^ fgj. i\^q delivery or transfer of any goods or valuable thing, every according such offender shall be deemed guilty of felony, of the same nature, and to tho cir- in ^j^q game dcf!;ree, and punishable in the same manner as if he had ces, like' stolen any chattel of like value with the share, interest, or deposit to stealing which the security so stolen may relate, or with the money due on the °' ^' security so stolen or secured thereby, and remaining unsatisfied, or with the value of the goods or other valuable thing mentioned in the warrant or order, and each of the several documents hereinbefore enu- merated, shall throughout this act be deemed for every purpose to be included under and denoted by the words valuable securiti/."{y^ In a case upon the statute 2 Geo. 2,c. 25, s. 3, (now repealed) where the prisoner was convicted of stealing a note, by which the maker pro- mised to pay to the prosecutor or order a sum of money, but which the prosecutor had not indorsed, it was holden by all the judges that its not being indorsed was immaterial. (?t') In a case upon the same statute where the prisoners were indicted for stealing a bill of exchange, it ap- peared that when the bill was stolen from the prosecutor at Manchester, two names were only indorsed upon it; but that when it was negotiated by one of the prisoners, at Leicester, a thii-d name was added to the two other indorsers : upon which it was objected, on behalf of the prisoners, that this being an indictment in Leicester, for then and there stealing a bill of exchange, whereon were indorsed the names of the two first in- dorsers, it was not supported by the evidence of a bill with an additional name indorsed thereon, at the time the bill was negotiated by one of the prisoners, in Leicester. But the prisoners were convicted; and the point being submitted to the twelve judges, for their consideration, they all agreed that the addition of the third name made no difference ; that (m) The 2 Geo. 2, c. 25, s. 3, which was here introduced in the last edition, is repealed by rhe 1 Wm. 4, c. 66, s. 31. (v) The Irish Act, 9 Geo. 4, c. 55, s. 5. contains a similar provision. {w) Anon. East. T. ITSI. 2 East, P. C. c. 16, s. 3Y, p. 598. f [A receipt for the payment of a debt is the subject of larceny. The People v. Loomis, 4 Denio, 380. Stealing a receipt or other instrument from the hands of the party whose act it is, it never having taken eifect by delivery, is not larceny. Therefore -when a debtor procured his creditor to sign a receipt for the debt under a pretence that he was about to pay him, and then took it from him with a criminal intent, and without paying the money ; held, that he was not guilty of larceny. The People v. Loomis, 4 Denio, 380. On a prosecution for larceny in stealing bank bills of another State, the prosecution must show the existence of the banks and the genuineness of the bills. Johnson v. The People, 4 Denio, 364. It seems that evidence that the prisoner had passed the stolen bills as genuine would have been sufficient. Ibid. Bank bills redeemed by the bank which issued them, and in the hands of its agents, are iho subject of larceny. Commonwealth v. Rand, 1 Metcalf, 475.] CHAP. IX. § II.] THEFT. — WRITTEN INSTRUMENTS. 74 it was the same bill that was originally stolen ; and therefore that the conviction was proper. (.';) In a case upon the 15 Grco. 2, c. 13, relating to embezzlements Excho- by servants of the Bank of England, which will be mentioned in a sub- )}"^^ ^j^/ylfj sequent chapter, a prisoner was indicted for stealing certain bills, com- by tho pro- monly called Exchequer bills ; and as it appeared that the person who P'^'" person, sjfrned them, on the part of the government, was not legally authorized so to do, the court held that they were not good exchequer bills, and the prisoner was consequently acquitted. (^) In a modern case it was holden that the jyapcr and stamj^s of the Clarke's notes of a firm of count)-?/ hankers which had been paid by their cor- p^^®*^ J^° respondent banker in London, and which were re-issuablc by the country stamps of bankers, were the valuaUe properti/ of such country bankers while they ^ho notes were i?t transitu for the purpose of being re-issued. The indictment }jankcrs, consisted of several counts; in some of which the prisoner was charged which with stealing " promissory notes ;" and in others he was *charged with '^^*'tc ° stealing " one hundred and thirty-five pieces of paper, each being re- ^^■^^ ^^ spectively stamped with a stamp of four shilling.?, value four shillings, their cor- being the stamp directed by the statute in such case made and provided j^^^X^j.'s^^^ on every promissory note for payment to the bearer on demand of any London, sum of money not exceeding, &c. ; one hundred and eighty -four pieces '^^^^^^^ ^l' of paper, each being respectively stamped with a stamp of one shilling, the country &c. ; and seventy-seven pieces of paper, each being respectively stamped bankers, with a stamp of one shilling and sixpence, &c. ; all the said pieces valuable of paper being so stamped as aforesaid, and being the property, property &c. ; and each and every of the said stamps being then available, "y^jj^^y and of fall force and effect, against the peace, &c." It appeared bankers, that the paid notes in question were made up into a parcel by the^^l^K^'^ London bankers, and sent by the mail to the country bankers, who for the never received them, and were under the necessity of issuing other pufpose of notes on fresh stamps in their stead. It was also proved that many of i^s^.j^ and the paid notes, so missed, were traced to the po.ssession of the prisoner the subject at the bar under very strong circumstances of suspicion. The pris- °^ J|,^^^^^^J^ oner's counsel objected that the charge being for a larceny, the law re- law. quired that the property stolen should be of some value ; that the notes, in the present instance, having been paid, they were become, both with respect to the money they were intended to secure, as well as the stamps, mere waste paper ; that their former value was extinct ; and that before they could again become valuable property, it was necessary they should have been actually re-issued by the firm of the country bank. And it was also objected as to the counts for stealing the stamped pieces of paper, that they could not be sustained; inasmuch as the stamjys, hav- ing been issued, were not at the time they were taken in any way sale- able as stamps; that their operation, as stamps, was at that time, com- pletely finished and at an end ; and that they would not reassume the character of stamps, until the notes, to which they were afiSxed, had undergone the process of being re-issued. The jury having found the prisoner guilty, the case was referred to the twelve judges, whose opinion was afterwards delivered by Grose, J., to the following effect: — '^ The question submitted in this case to the consideration of the (x) Rex V. Austin and King, Leicester Lent Ass. 1183. East. T. 1T83. 2 East. P. G. c. 16, s. 37, p. G02. (y) Aslett's (first) case, 2 Leach, 954. 75 OF LARCENY. — WHAT GOODS SUBJECT OF [BOOK IV. judges was, wbether the paper aud the stamps arc, under the circum- stauces of the case, the subjects of larceny at common law ; or, in other terms, whether they are the property of, and of any value to Messrs. Large & Co., (the country bankers,) who were unquestionably the owners of them. These gentlemen had paid for the paper, the printing and the stamps of these papers, which once existed, both in character and in value, as promissory notes. Their character and value, as pro- missory notes, were certainly extinct at the time they were stolen ; but, even in this state, they bore about them a capability of being legally restored to their former character and pristine value. It was a capa- bility in which these owners had a special interest and property. The act of re-issuing them would have immediately manifested their value as papers, for it would have saved their owners the expense of reprint- ing other notes, and of purchasing other stamps, to which expense, it was proved, they were put on their being deprived of these papers, by the crime of the prisoner. In what sense or meaning, therefore, can it *76 be said that these stamped *papers were not the valuable property of their owners ? TJict/ were, indeed, only of value to those owners ; hid it is enovr/h tJiat they were of value to them : their value as to the rest of the 7corhl is immaterial. The judges, therefore, are of opinion, that to the extent of the price of the paper, the printing, and the stamps, they were valuable property, belonging to the prosecutors; and that the prisoner has been legally convicted." (s)f The halves TJ^e halves of the country bank notes, sent in a letter, are goods and Lank notes chattels. The indictment in some counts charged the prisoner with are goods embezzling pieces of paper of the value of one penny, and in other te°3. ^ ^ ' counts, " pieces of paper partly written and partly printed," bearing stamps, the values of which were specified : all the counts charged them to be " of the goods and chattels" of the prosecutor. A stamp distri- butor had remitted to the prosecutor, by post, the first halves of country bank notes, to the amount of 190?., and evidence was given to show that this letter was received by the prisoner, and that he had embez- zled the notes ; it was objected that these halves of country notes were not goods and chattels : if the notes had been entire, they would have been choses in action, not goods and chattels, and in their present state they were of no value. Bosanquet, J., " They might have been made of value to the prosecutor, by his putting the two halves together." After citing Clarke's case, his lordship added, ^' I will consider of the objection, and if I should think it is a valid one, the prisoner shall have the benefit of it." The prisoner was afterwards sentenced to be trans- ported, (a) Re-issuabie Re-issuable notes, if they cannot be called valuable securities while notes in the j^ ^jq hands of their makers, may be called goods and chattels. The their fi^st count charged the prisoner with receiving thirty pieces of paper of (z) Clarke's case, 0. B. 1880. 2 Leach, 1036, and Russ. & Ry. 181. In a MS. note of the judgement in this case, with which the author has been favoured, the principle is thus stated, " If a chattel be valuable to the possessor, though not saleable, and no value to any one besides, it may still be the subject of a larceny." (a) Rex V. Mead> 4 C. & P. 535. f {Re-issuable notes, if they cannot properly be called valuable securities, whilst in the hauds of the maker, may be called (in an indictment) goods aud chattels. Ry. & Mood. C. C. 218, Rex V. Vyse, See 5 Mason, 537, U. States v. Moulton. } * Eng. Com. Law Reps. xix. 514. CHAP. IX. § II.] TIIKFT. — MKITTEN INSTRUMENTS. 76 creat value, to wit, 30^. each, the eaid pieces of paper being fstainpcd makers with a stamp value 5a., the same being the stamp directed and required gi^ribed as by the statute in that case made and provided, on every promissory note goods and fur payment to bearer on demand for every sum of money not exceeding '' '"' 11. Is.l of the goods and chattels of J. Whitehead and otliers. Second count the same, but substituting the words " being duly stamped as directed and required by the statute in such case made and provided," instead of the words between the brackets. Third count, receiving " thirty valuable securities, commonly called promissory notes, each of the said valuable securities being for the payment of the sum of 1/., and of the value of 11. of the property of J. Whitehead and others, and the said valuable securities at the several times of committing the several felonies last above mentioned, being of great value, to wit, 30Z." Fourth, for receiving " thirty other valuable securities of great value, to wit, of the value of 30?." Neither of the two last counts stated that the moneys secured by the valuable securities remained due and unsa- tisfied. The prosecutors. Whitehead and Co., were country bankers, and were in the habit of issuing promissoiy notes of 10/., 51., and 11.; the two former were made payable at the house of Glyn and Co., in Lombard street, the 1/. only in the country, but *were occasionally paid '^'TT when presented to Glyn and Co. The course of business at that house was, at the close of every day to roll up in a bundle all the notes which hud been paid in the course of the day, and to lock up these bundles until an opportunity offered of delivering them to one of the parties when in town, or of sending a parcel of them to be re-issued. On the !21st of November, 1827, a large bag was delivered at the house of Glyn and Co. to one of the partners of the house of Whitehead and Co., containing the bundles of several days, and he was robbed of the bag at the door of Furnival's Inn Cofice-house, when about setting off for the country by the mail, and some of the notes were traced to the prisoner under circumstances which satisfied the jury of his guilty knowledge in receiving them, and they found him guilty. And upon a case reserved it was contended that in order to bring the case within the 7 & 8 Geo. 4, c. 29, s. 5, the notes must be outstanding, and the money purporting to be payable on them must be due and unpaid. In this case the notes had been satisfied, and were in the hands of the makers, they could not therefore be valuable securities of the value they purported to be, and had indeed been when in circulation. Besides, there was no averment that the money was due and unpaid; nor could these notes be said to be goods and chattels of the value of the stamps, or of any other value; they were in fact of none; but supposing them to be of value, and the property of the owners, they could not be called goods and chattels. The judges, ten of whom were present, held the conviction right; some doubted whether the notes could properly be called valuable securities; but if not, they all thought that they were goods and chattels. (^)f In order to come within the 7 & 8 Geo. 4, e. 29, s. 5, an instrument An imper- must be a perfect and complete bill of exchange, promissory note, &c., '^^p'^dyL"'^ and if the sum or the drawer be omitted, they are not such securities as uotc, &c., (h) Rex V. Vyse, R. & M. C. C. R. 218. •}• [Biink bills complete in form, but not issued, are the property of the bank ; and may be so treated in criminal proceedinccs for receiving them with knowledge of their having been stolen. The People v. Wiley, 3 Hill, 194.] 77 OF LARCENY. — WHAT GOODS SUBJECT OF [bOOK IV. is not a are included in that section ; and although such imperfect instruments socu'rity "^^J properlj be described as pieces of paper, each having a stamp, yet witiiiu tiio the prisoner cannot bo convicted of stealing them, unless the prosecutor 4 c 29 /°^^^^ ^"^^ ^ possession of them as would have enabled him to maintain 5." trespass. The first count charged the prisoner with stealing i-ii)o, and promised in the usual lorm two months alter date to pay drew it the prisoner, or order, two thousand pounds. And it appeared that the soon as it Prisoner attempted to get the note discounted the next day, without suc- was signed, cess ; and it was found in her possession when she was apprehended, ^^"g'^^^j^gjj The jury having found the prisoner guilty, the case was reserved for not to be the consideration of the twelve judges; the principal objection to the Tg^"^ 2^® conviction, as urged by the counsel for the prisoner, being that the case 25. ■ ' ' was not within the statute 2 Geo. 2, c. 25, the note being of no value while in the hands of the prosecutor, and the statute only extending to secure valid existing securities in the possession of the party robbed. It was argued, that nothing could be said to be due on this note as the statute required; and that it never was the property, nor in the posses- sion of the prosecutor, the paper and stamp being the property of the prisoner, and never out of her possession : that the prisoner had in fact acquired the note, not by stealing, but by duress. It appears that there was considerable difference of opinion amongst the judges upon this point. It is said, that nine of them expressly held, that the offence was not within the statute; some of them thinking that the statute was only intended to protect existing available notes in the hands of the per- son from whom they were taken; and that this note did not come with- in that description, being of no value in the hands of the prosecutor ; and others inclining that the note was of value from the moment it was drawn ; but that it never was in the possession of the prosecutor, but continued all the time in the possession of the prisoner herself, by whose (f) Hanson's case, 0. B. 1812. 2 Leach, 1090, 1093. Russ. & Ry. 232. (g) Anon. cor. Lord EUenborough. C. J., Carlisle, 1802, mentioned in the notes to 4 Bla. Com. 234, and in note (6), in 2 Leach, 1061. But they would probably be deemed valuable propertj', on the subject of larceny at common law. See Clarke's case, ante, p. 74. Some of the judges in Ranson's case thought that the acts 2 Geo. 2, c. 25, and 7 Geo. 3, c. 50, were in pari materia, and that the term promissory note was not to be taken in such act to mean notes on which the money thereby secured still remained due and unsatisfied to the the holder thereof: but the majority of the judges, as we have seen, differed, CHAP. IX. § II.] THEFT. — WRITTEN INSTRUMENTS. 80 duress the prosecutor was compelled to make it. And Eyre, C. J., ob- served, that the property never existed till the force, but arose out of it; and that, therefore, it was different from the case of money. And ad- mittino- that if the prosecutor had bought the note in his pocket, it would have been a case within the act, though the note would not be available while in his possession (upon which point he should have hesi- tated) : yet this was not that case. ]>ut all the nine judiros considered that the whole transaction was one continued act, and that the note was procured by duress, and not by stealing. One of the judges, (Ashurst, J.,) who differed, thought that it was not a single act, but that there was a distinguishable interval between the writing of the note, and the actual taking of it by the prisoner, during which the prosecutor had the possession of it ; and that therefore it was taking from him an instru- ment of value within the meaning of the statute, as it would have been available against him in the hands of an innocent holder. On this ground also, Macdonald, C B., doubted. The other judge, (BuUer, J.,) was absent. The opinion of the *raajority of the judges was after- *81 wards delivered by Ashurst, J. lie stated " that as the legislature, at the time of passing the statute 2 Geo. 2, c. 25, s. 3, whereby the stealing a chose in action was made felony, could not possibly have a case like the present in contemplation, it was not within that act of parliament; that it was essential to larceny, that the property charged to have been stolen should be of some value ; that the note in the present case did not, on the face of it, import either a general or special property in the prosecutor ; and that it was so for from being of any the least value to him, that he had not even the property of the paper on which it was written ; for it appeared that both the paper and the ink were the pro- perty of the prisoner ; and the delivery of it by her to him could not, under the circumstances of the case, be considered as vesting it in him."(/t) This authority was cited in a case of recent occurrence, where the Walsh'a prisoner was charged with stealing a clicck upon a banker, which in ^^^i.t^y^^d some of the counts of the indictment, was described as a " bill of ex- that a change," and in others as " a warrant for the payment of money." It ^*,^^^y,."^'"* was argued, on behalf of the prisoner, that these counts were bad, on was not the ground that the 2 Geo. 2, c. 25, (now repealed) extended only to ^it'"" ^^e such instruments as were available security in the hands of the party Vj. from whom they were stolen , that a check on the banker did not create any debt between the drawer and the banker, whose liability to the drawer remained precisely the same as before, and was not altered in any respect by such an instrument; and that, consequently, the check in the present case, not being a security to the prosecutor, could not be averred, as in this indictment, to be either "bill of exchange," or "a warrant for the payment of money," the property of the prosecutor, and upon which the sum of money, for the payment whereof it was made, was due thereon to him. It was not, however, necessary to (A) Rex V. Phipoe, 0. B. 1795, and Serjeants' Inn, Feb. 1Y96, 2 Leach, 673. 2 East, P. C ■ c. 1(5, s. .37, p. 599 ; and see Rex v. Edwards,* 6 C. & P. 521, which Avas a vcrj- similar case, but the paper on which the order was written was in the jjossession of the prosecutor for half an hour, whilst he was fastened down to a chair, and this was held to make no differ- ence : ante, vol. i., p. 869, 870. * Eng. Com. Law Reps. xxv. 552. 81 OF LARCENY. — WHAT GOODS SUBJECT OF [BOOK IV. press tins objection, as the case supplied others of greater importance; winch have been already noticed. (i) Chard's It was decided upon the 2 Geo. 2, c. 25, (now repealed) that where esise. j^jj instiaimeut was described in the indictment as a bank post bill, and Bank post ,.,.., . '■ , . ' bill. was not set out, the court could not take judicial notice that it was a promissory note, or that it was such an instrument as under that statute might be the subject of larceny, though it was described as made for the payment of money. The prisoner was indicted for stealing a bank post bill made for the payment of the sum of 100?. of lawful money of Great Britain ; and it appeared that the bank post bill was in form a promissory note, and therefore would not support the indictment, unless the court could take notice judicially, that a bank post bill was in form a note. The prisoner, however, was convicted, and a motion was made in arrest of judgment, on the ground that at the time the statute 2 Geo. 2, passed, it was not known what a bank post bill was. Upon a case *82 reserved, it appeared that bank post bills was not in use until two years after the statute 2 Geo. 2 had passed, and the judges thought that they could not take notice, that what was afterwards called a bank post bill fell within any of the descriptions in that statute; and they also thought that they could not say, as the instrument was not set out, what a bank post bill was ; and, further, that as the instrument was not what, at the time the statute passed, could properly be called a bill, the prisoner should have been acquitted, and a pardon was recommended. (_;") Of larceny III. The third subject of inquiry, under the head of personal goods of animals, j^ respect of which larceny may be committed, arises when the property fish. ' taken consists either of animals, hirdsj or fish. Domestic With regard to domestic animals, such as horses, oxen, sheep, and animals, ^^i^g Yi\,Qj there is no doubt whatever that they were the subjects of lar- ceny at common law.(/^) And the stealing of many of these animals has been made subject to transportation by an enactment which will be noticed in a subsequent chapter.(/) Domestic birds, also, as ducks, hens, geese, turkeys, peacocks, &c., are clearly the subjects of lar- ceny, (wi) So also larceny may be committed of their eggs or young ones.(H) And their And as the stealing of such animals is larceny, it is also larceny to produce, g^g^j i\^q produce of them, though taken from the living animals. Upon this ground it was holden by all the judges, on a case reserved for their opinion, that milking a cow at pasture, and stealing the milk, was lar- ceny. (o) And it has also been holden that larceny may be committed by pulling wool from the bodies of live sheep and lambs with a feloni- ous intent, (jjj In one report of this last decision it is given as a part of the opinion of the judges, to whose consideration the question was referred, that in order " to prevent the thoughtless and wanton frolics which might be played with these trifling kinds of property from being prosecuted as petty larcenies, when, perhaps, they were unmixed with any fraudulent or felonious design, the law, proceeding upon the idea (i) Walsh's case, 1 Leach, 106!. Russ. & Ey. 215. Ante, p. 30. (,/) Rex V. Chard, Tria. T. 1823. Russ. & Ry. 488. {k) 1 Hale, 511. 1 Hawk. P. C. 33, s. 43. {I) Post, Chap. XL (m) 1 Hale, 511. Hawk. P. C. c. 33, s. 43. («) Id. Ibid. Hale's Sum. G8, G9. (o) Anon. cor. Leigh, Serj., who sat for Bathurst, J., Oxford circuit about ITGD. 2 East, P. C. c. 16, s. 49, p. 617. 1 Leach, 171. {p) Martin's case, Northampton Lent Ass. 1777. 1 Leach, 171. 2 East, P. G. c. 16, s. 49, p. 618. CHAP. IX. § II.] THEFT. — ANIMALS, ETC. 82 dc minimis, requires the property stolen to be of the value of twelve- pence.' Vj) The distinction, however, between grant! and petty larceny is now abolished by the 7 & 8 Geo. 4, c. 29, s. 2, but the application of it in this case seems to have been very questionable. Undoubtedly the quantity of wool taken, if considerable, would have been a strong additional circumstance in the evidence of felonious intent necessary to sustain a charge of larceny ; but supposing the quantity not to have been of greater value than twelvepence, yet if the felonious intent of the party was manifest, as it might have been from the manner in which the fact was committed, the use to which the property was applied, and the behaviour of the party, there does not appear to have been any good reason why such a taking should not have been considered as petit larceny. (/•) *"\Vlierc the animals or other creatures are not domestic but are /eraj *83 natuiw., larceny may, notwithstanding, be committed of them, if they Animals, are fit for the food of man, and dead, reclaimed, (and known to be so) ],^'t'J.l]'^ or confined. Thus, if hares or deer be so enclosed in a park, that they reclaimed may be taken at pleasure ; or fish in a trunk or net, or as it seems in °'' ^'^'^*^- any other enclosed place which is private property, and where they may be taken at any time, at the pleasure of the owner ; or pheasants and partridges be confined in a mew ; or pigeons be shut up in a pigeon- house; or swans be marked and pinioned, or (though unmarked) be kept lame in a moat, pond, or private river : or if any of these creatures be dead and in the possession of any one, the taking of them with felo- nious intent will be larceny. (.s) And of some things fcree nafurx, thought not fit for food, felony may be committed, if they be reclaimed; in respect of their generous nature and courage, serving ob vita: solatium of princes and noble persons, to make them fitter for great employment; so that larceny may be committed of hawks and falcons, when reclaimed and known to be so;(A and it may be committed also, it is said, of young hawks, in the nest;(M) but not of the eggs of hawks or swans, though reclaimed, the reason of which seems to be that a less punish- ment, namely, fine and imprisonment, is appointed for taking them by statute. (i-') The stealing of a stock of bees seems to be admitted to be felony. ( if) t Where pigeons were shut up in their boxes every night, and stolen {q) 1 Leach, 172. (r) It should be observed also that in the abstract of JIartin's case, 2 East, P. C. c. 16, s. 49, p. G18, it is not stated as any part of the opinion of the judges that the property stolen .should be above the value of twelve-pence. And at the conclusion of the report in which that position is advanced, the doctrine appears to be contradicted, where it is said, " if a wicked disposition be discovered, une disposition a faire un mal chose, as it is described Vty Hritton, it may be evidence of felony, notwithstanding the trifling quantity of the thing taken." (s) 2 Inst. 109, 110. 1 Hale, 511. 3 Hawk. P. C. c. 33, s. 41. 4 Bla. Com. 235. 2 East, P. C. c. 16, s. 41, p. 607. (/) 1 Hawk. P. C. c. 33, s. 36. 3 Inst. 07, et seq., and 3 last. 109. But the 37 Ed. 3, c. 19, is repealed by the 7 & 8 Geo. 4, c. 27. (m) 1 Hale, 511. This law had relation to the /raincfl? hawks of other davs. (v) 11 Hen. 7, c. 17, and 31 Hen. 8, c. 12. 1 Hawk. P. C. c. 33, s. 42. 2 East, P. C. c. 10. s. 41, p. 607. (w) 2 East, P. C. c. 16, s. 41, p. 607, citing Tibbs v. Smith, T. Ray. 33. 2 Bla. Com. 392, 393. ■)■ [Bees in the possession of the owner are the subject of larceny. I'he Slate v. 3furp/n/, 5 Blackf. 498.] 83 OF LARCENY. — WHAT GOODS SUBJECT OF [book IV. '84 Animals, Ac, unre- claimed. out of such boxes during the night, Parke, B., held it to be larceny (cc) So where pigeons were so tame that they came home every night to roost in boxes at the side of the house of their owner, it was held to be larceny, if they were taken by night out of such boxes, although the boxes were not shut up at night. Upon an indictment for a misdemea- nor in attempting to steal pigeons out of certain boxes affixed to the wall of a dwelling-house, it appeared that the boxes wex-e fixed to the wall of the prosecutor's house for his pigeons to live and breed in, and the holes in them were left open at night. The pigeons were such as are generally about farm-houses and were accustomed to feed with the prosecutor's fowls; they flew about the fields as they pleased, returning again to the boxes, in which they always roosted at night. The prison- ers had reared a ladder against the house, and one of them was attempt- ing to take the pigeons out of the box, when he was caught by the prosecutor. Taddy, Serjt., held that as these pigeons were so tame that they came home every night to roost in *the boxes, after they had been out to feed, they were reclaimed, so as to be the subject of lar- ceny.(3/) But a difierent doctrine prevails with respect to animals and other creatures ferse. naturae which are unreclaimed, as it is considered that no person has a sufficient property in them to support an indictment for larceny. Thus larceny cannot be committed of deers, hares, or conies, in a forest, chase, or warren ; of fish, in an open river or pond ; of wild fowls, when at their natural liberty ; of old pigeons, out of the dove-house ;(?-')f or even of swans, though marked, if they range out of the royalty, because it cannot be known that they belong to any per- son. (a) But larceny may be committed of the flesh or skins of any of these or other creatures fit for food, when they are killed, because they are then reduced to a state in which a right of property in them may be claimed and exercised. (6) [x) Luke's case, Rose. Cr. Ev. 57*7, and es-relatione Mr. Granger. The case was deter- mined on the ground that the pigeons were reclaimed, and not on the ground that they were shut up in their boxes at the time thej were taken. [y) Rex V. Bi-ooks, MS. C. S. G., and 4 C. & P. 131. " Si autem animalia fera facta fuerint mansueta, et ex consuetudine eunt et redeunt, volant et revolant (ut sunt cervi, cigni, pavones, et columbaj et hujusmodi) eo usque nostra intelliguntur quamdiu habuerint animum revertendi." Bracton, lib. 2, c. 1, fol. 9, cited in the case of Swans, 7 Rep. 16 b. See 1 Just. Inst. Tit. I., XV. In the argument of Dewell v. Sanders, Cro. Jac. 490, Doderidge, J., said, that if pigeons come upon my land I may kill them, and the owner hath not an}"- remedy ; but the owner of the land is to take heed that he takes them not by any means prohil)ited by the statutes. Ad quod Croke and Houghton, accord. But Montague, C. J., held the contrary, and that the party hath jus projirictatis in them, for that they be as do- mestics, and have animum revertendi^ and ought not to be killed, and for the killing of them an action lies ; but, adds the reporter, the other opinion is the best. See also 2 Bla. Com. 292. {z) 3 Inst. 109, 110. 1 Hale, 510, 511. 1 Hawk. P. C. c. 33, s. 29, 40. 4 Bla. Com. 235. 2 East, P. C. c. 16, s. 46, p. 607. But see 2 Bla. Com. 392. (a) 1 Hale, 511. [b) 3 Inst. 110. 1 Hale, 511. In 3 Inst. 110, it is said, "But the deer, &c., being wild, yet when he is killed, larceny may be committed of the flesh, and so of pheasant, partridge, or the like ; and so note a diversity between such beasts as heferce naturae, and being made tame, serve for pleasure only : and such as be made tame, and serve for food, &;c., which diversity not being observed, hath made many men to err." •}■ {See 9 Pick. 15, Commonwealth v. Chace, that doves are/eros naturce, and not the subject of larceny, unless they are in the custody of an owner.} [A coon comes under the denomination of animals ferce naiuroe, and is not the subject of larceny. Warner v. The State, 1 Iowa. Rep. lOG.] CHAP. IX. § II.] THEFT. — ANIMALS, ETC. 84 It seems that no person has any property in rooks, so that neither they nor their young ones can be the sul»ject of hirccny.(r) It is so clearly established, that those creatures Avhieh arc fcrx vaturse Rough's can only become the subject of property by being dead, reclaimed, or P^j^^^^^^^^^ confined, that it has been holden to be necessary that they should be so for stealing , an animal /'era- naturt been convicted on an indictment for stealing a pheasant of the value ofmust show described in an indictment for stealing them. The prisoner, ^^^'^^sT,a'^„f,tHr(c fortv shillinirs, of the sroods and chattels of II. S. the case was referred^'.'-''* 'twas C'ltlicr (loMu to the consideration of the judges ; and upon a second conference, and tauic or ' after much debate and diiference of opinion, they all agreed that the confined, conviction was bad; that in cases of larceny of animals fcrse naturse the indictment must show that they were either dead, tame, or con- fined ; otherwise thoy must be presumed to be in their original state ; and that it is not sufficient to add " of the goods and chattels" of such an one.((^?) It has been ruled that though a person be not qualified to keep, or Jones' kill fjavie, he may have a sufficient legal possession of animals, &c., u^j^'\',„]ifi°j coming under that description, whereon to support an indictment for person may stealinii them. The prisoner was indicted for stealing five pheasants, ^'V^ a suf- restrained of their natural liberty, the property of the *prosecutor : and, possession upon its appearing from the evidence that the prosecutor was not aof^rrtme to qualified person to keep or shoot game, and that he had the pheasants ;!, jfc^tment for sale, it was objected that he could have no property in them, nor for stealing any legal possession sufficient to support the indictment ; that by the '*' ^°^ ^^' several statutes relating to the game laws, unqualified persons are for- "^ bidden under certain penalties, to have pheasants in their possession ; and that by one of those statutes authority is given to a justice of the peace to take away from such person any pheasant which he may have in his possession. But the learned judge held that it was a sufficient legal possession for the purposes of the indictment, and the prisoner was convicted. (/)-|- The stealing of deer, offisJ), and of Jiarm and coniea, in a warren, &c., Ttccr, co- has been made punishable by statute, as will be mentioned more P<'>i'ti- ||'if. ""^ cularly in some of the following chapters. There is yet another kind of animals to be noticed ; namely, those Animals which, though they may be reclaimed, are not such of which larceny |^|,^'^*" can be committed by reason of the hasejief^a of their nature. Some animals which, in this country are now usually tame, come within the class in question; as dogs and cats. And others which, though wild by nature, are often reclaimed by art and industry, clearly fall within the same rule ; as hears, foxes, ajies^ monJi-ei/s, polecats, ferrets, aiid the like.(<7) The reason upon which this doctrine appears originally to have proceeded is, that creatures of this kind, for the most part wild in their nature, and not serving, when reclaimed, for food, but only for pleasure, (c) Hannam i'. Mockctt,* 2 B. & C. 934. 4 D. & R. 518. Tbc court said that rooks were not generally used for food, but the contrary is certainly the case with young- rooks, which are very commonly used for food. C. S. G. (d) Rough's case, Surrey Lent Ass. 1778, and East. T. 1770. 2 East, P. C. c. 10, s. 41, p. U07. (/■) .Jones's case, cor. Grose, J., Bucks. Lent Ass. 1800. 3 Burns' Just. tit. Larcniy, D. & W.457. {g) 3 Inst. 109. 1 Hale, 511, 512. f [Ice, put away in an ice-house for domestic use, is private i)roperfy, and as such the subjert of larceny. Ward v. The People, 3 Ilill, 395.] » Eng. Com. Law Reps. ix. 280. 85 OF LARCENY. [book IV. larceny. ought not, however the owner may value them, to be so highly regarded by the law that for their sakes a man should die. (A) And the doctrine extends to the whelps, or young, of such animals : the rule being estab- lished, that where no felony can be committed of any creatures that are ferx naturae, though tame or reclaimed, it cannot be committed of the young of such creatures in the nest, kennel or den.(«) Searing's The doctrine respecting the larceny of animals, of a hase nature, was case. Fer- considered in a late case, where the prisoner was charged in the indict- rets are . ' ^ n -i • animals of ment with stealing <' five live tame ferrets, confined in a certain hutch, a base , &c.," the propcrtv of Daniel Flower. The evidence broudit the fact of nature, and , • , /. , , , • t • ^ not tho takmg the ferrets clearly home to the prisoner ; and it was also proved subject of ti^at ferrets are valuable animals, and that those in question were sold by the prisoner for nine shillings. But the jury having found the pri- soner guilty, the case was submitted to the consideration of the judges upon the question, whether ferrets must be considered as animals of so base a nature that no larceny can be committed of them. And the judges held that judgment ought to be arrested. (y) With respect, however, to dogs, and also beasts and birds, ordinarily kept in a state of confinement, the 7 & 8 Geo. 4, c. 29, s. 31, enacts, " that if any person shall steal any dog, or shall steal any beast or bird 20^^%f' °' ordinarily kept in a state of confiuemeut, not being the subject of lar- '*"gg' ceny at common law, every such offender, being *convicted thereof before a justice of the peace, shall for the first oifence forfeit and pay, over and above the value of the dog, beast, or bird, such sum of money, not ex- ceeding twenty pounds, as to the justice shall seem meet ; and if any birds ordi- person SO couvicted shall afterwards be guilty of any of the said offences, in confine^ and shall be convicted thereof in like manner, every such ofi'ender shall ment, and be Committed to the common gaol or house of correction, there to be 'ecu'^ f ^"^" ■^^P'' ^* ^^^"'^ labour for such term, not exceeding twelve calendar months, as the convicting justice shall think fit; and if such subsequent con- viction shall take place before two justices, they may further order the offender if a male, to be once or twice publicly or privately whipped, after the expiration of four days from the time of such conviction." (7^;) By sec. 32, '' if any dog, or any such beast, or the skin thereof, or any such bird, or any of the plumage thereof, shall be found in the pos- of stolen session, or on the premises of any person by virtue of a search warrant, liable to"' ^^ ^® granted as hereinafter mentioned, the justice by whom such war- penalties, rant was granted may restore the same respectively to the owner thereof, and the person in whose possession, or on whose premises the same shall be so found, (such person knowing that the dog, beast, or bird, has been stolen, or that the skin is the skin of a stolen dog or beast, or that the plumage is the plumage of a stolen bird,) shall, on conviction before a justice of the peace, be liable for the first offence to such forfeiture, and for every subsequent offence to such punishment, as persons convicted of stealing any dog, beast, or bird, are hereinbefore made liable to." (A Dogs and certain beasts and birds, 7 & Stealing dogs, or stealing beasts or larceny. i'ersons found in possession (//) 1 Hawk. P. C. c. 33, s. 36. 4 Bla. Com. 235. 2 East, P. C. c. IG, s. 45, p. 614. (i) 3 Inst. 109. (/) Searing's case, cor. "Wooil, !>., Hertford Lent Ass. 181S, MS. Baylej, J., and Russ. k Ry. 350. The ferret was originally a native of Airica, but has been for a long time bred, kept, and sold in this country, as a tame animal. (A-) The Irish Act., 9 Geo. 4, c. 55. s. 28, 29., contains similar provisions to those in this and the following section. {I) As to the apprehension of offenders, see s. 63, and as to the recovery and application of forfeitures, appeal against convictions, &c., see s. 67, etseq. CnAP. IX. § III.] OWNERSHIP OF THE GOODS. 80 By sec. 33, " if any person shall unlawfully and wilfully kill, wound, Killing or take any house-dove or pigeon, under such circumstances as shall uot^'""^""^" amount to larceny at common law, every such offender, being convicted thereof before a justice of the peace, shall forfeit and pay, over and above the value of the bird, any kuiu not exceeding two pounds." (?) SECT. III. 0/ the Owncrsliij) of the Goods In respect to ivhich Larcovj may he committed. It is necessary that there should be in some person a sufficient owner- ship of the things stolen ; and that they should be stated in the indict- ment as the goods and chattels or property of such person. And this ownership must, of course, exist as against the party by .Joint whom the goods arc taken ; and will not, in general, reside sufficiently te"anta, or in any other person, where the party taking the goods has a legal pro- eommon, perty in them, and aright of possession. So that joint tenants, or ten- ^^"-'^ "''^ ants in common, of a chattel, cannot be guilty of stealing such chattel ship, as from each other. f Thus, if A. and B. be *joint tenants, or tenants in *87 common, of a horse, and A. take the horse, even animo furandi, j'et it "S'i'n'f will not be a felony, because one tenant in common taking the whole ',j,„ ^yLich only docs that which he may do by law.(m) an indiet- The goods of a ready furnished lodging must be described as the j"^!c(*„y'' lodger's goods, and not the goods of the original owner. An indictment can be sus- was for breaking in the day time Anderson's house, and stealing his ^''■i"®*^- goods. The goods were the furniture of a room let by Anderson to (joods let another person by the week : and, upon a case reserved, the judges held "''^'^ ^ that the goods should have been described as the goods of such other iod.ri,ig. person, for Anderson was not entitled to the possession, and could not have maintained trespass; and that the conviction was, therefore, wrong. («) We have seen that a feme covert cannot commit larceny of her hus- Xor has a band's goods by taking them from the possession of her husband, be-^"°'^"°'^ cause in law they are considered as one person, and she has a kind of mviursbip interest in the goods, (o) And upon the same ground it has been holden, oi his that even a stranger cannot commit larceny of the husband's goods by |[°^|,jg*'l,ig the delivery of the wife, unless he be her adulterer. (7)) But, if the wife, that husband bail the goods to a third person, as there will then be a posses- ^^ '/"^."i"'^ sion in the bailee, distinct from that of the husband, it may be a larceny delivery, if the wife take such goods with a felonious intent.fo) may com- mi 1 I 1 .• . .1 111 uiit larcoDj Ihe last case proceeds upon an exception to the general rule, that a of them, person cannot commit felony of the goods wherein he has a property. (/•] a mau (l) Ibid. {m) 1 Hale, 513. 2 East, V. C. c. IG, s. 7, p. 558. Sec the 3 & 4 Vict. c. 92, s. 2, as to larceny by the members of joint stock banks, ^)o«^, p. 104. (n) Rex V. Belstead, East, T. 1820, MS. Uayley, J., and Russ. & Ry. 411. and the same point was decided in Rex v. Rrunswick, Trin. T. 1824, MS. Bayle^-, J., and Ry. & Mood. C. ('. 27. See the observations of Bayley, B., on these cases, ji)o,«/, p. 90 and 91. As to larcenies by tenants and lodgers see post, chap. Of Larceny by Tenants and Lodyers. (0) Vol. 1, p. 22, 23, and see Rex v. Willis, infra, note («'). (;;) Ibid. {q) 1 Hale, 513. (r) Id. ibid. f [One entitled to receive a share of a crop for his services is not joint tenant or tenant in common -with his emidoycr, and corait.s larcenv in stealing a itart. State v. Gau, 1 Hill. 3G4.] ■ ^' . Vol. II,— 7 8T OP LARCENY. — OWNERSHIP OF THE GOODS. [BOOK IV. in oertain cafos guilty of larceuy in taking his own goods from a bailee. Friendly i^ocieties. *88 If tlio wife of a mem- ber of a friendly society steal the society's money, It is not lar- ceny. The pro- perty of such a so- ciety may bo laid in the land- lord of an inn, where it is de- posited. He may, under particular circumstances, be guilty of larceny in stealing his own goods, as he may of robbery in taking his own property from ■ the person of another.J If A. bail goods to li., and afterwards animo furandi take the goods from B., -with an intent to charge him with the value of them, it is felony. (.s) And so if A., having delivered money to his servant to carry to some distant place, disguised himself, and robbed the servant on the road, within intent to charge the hundred with the loss, according to the provisions of the repealed statute, it was robbery in A.(<) For as against persons so taking even their own goods with a wicked and fraudulent intent, there is a sufficient temporary special pro- perty in the bailee or servant to support an indictment, (w). So if a part owner of property steals it from the person in whose custody it is, and who is responsible for its safety, he is guilty of larceny. The box of a female friendly society, established according to 33 Geo. 3, c. 54, con- taining upwards of fifty pounds, was left in the custody of the "-''land- lord of the house where the society met ; the prisoner was one of the members, and broke into the landlord's house in the night time, and stole the box. Upon an indictment for burglary and stealing the box and its contents, a case was saved for the opinion of the judges, upon the question whether, considering the situation in which the prisoner stood with respect to this property, the conviction was right, and the judges (ten of them being present] were clear, that as the landlord was answerable to the society for the property, it was a right conviction. (y) But if the wife of a member of a friendly soctety steal money of the society deposited in a box in her husband's house, which is kept locked by the stewards, this is not larceny. Upon an indictment for stealing a quantity of money, laid to be the property of W. Orchard and thirty or forty others, and amongst them the prisoner's husband, all of whom were named in the indictment, it apppeared that a friendly society was held at a public house, kept by the prisoner's husband, who was a member of the society, and the box containing the property was always left in his house, but the box had four locks kept by the stewards, of whom he was not one ; the wife having broken open this box, and stolen a great deal of money to pay some debts of a former husband, was con- victed; but Park, J. A. J., thought it fit to ask the opinion of the judges, whether a wife can be convicted of larceny in stealing money in which her husband has a joint property; and the judges were of opinion that the conviction was wrong.(w) An indictment for burglary and steal- ing the box of a friendly society, in all the counts, except one, laid the property in one of the stewards, and in that one in the landlord of the public house where it was kept. There were four stewards of the so- ciety, and, by the rules, the landlord ought to have had a key of the box, but, in fact, he had none. The box was deposited in a room in the public house, and two of the stewards had each a key. Parke, J. (s) Staundf. 56 a. 3 Inst. 110. 1 Hale, 51.3, 514. 1 Hawk. P. C. c. 33, s. 47. Post. 123. Aliquando etiam su;b rei furtum quia committit, veluti si debitor rem, quam creditor! pig- noris causd dedit, subtraxerit. Just. Inst. lib. 4, tit. 1, s. 10. (t) Post. 122, 124. 3 Inst. 110. 4 Bla. Com. 231. 2 East, P. C. c. 16, s. 7, p. 558, and s. 90, p. 654, where the learned author says, that even in this case he sees no objection to laying the property of the goods in the servant. (m) See also the argument in Rex v. Deakin, 2 Leach, 871. («) Rex V. Bramley, East. T. 1822, MS. Baylev, J. and Russ. & Ry. 478. («') Rex V. Willis, R. &. M. C. C. R. 375. X [Palmer v. The People, 10 Wend. 165. The People v. Wiley, 3 Hill, 199.] CHAP. IX. § III.] OWNERSHIP OF THE GOODS. 88 intimated that the case must rest on the count which stated the property to be in the landlord. It was then objected, that if there was any pro- perty in the landlord, it was a joint property between him and the stewards. Parke, J., "I am of opinion that there is sufficient evi- dence to go to the jury of the property in the landlord alone." (a."] And if a man steals his own goods from his own bailee, though he has no stealiug a intent to charge the bailee, but his intent is to defraud the king, yet if '""n's oy» the bailee had an interest in the possession (as if he were bound to the inteut to crown for the specific appropriation of the goods), and could have with-'l'^'f^aud held them from the owner, the taking is a larceny. "\Vm, IMarsden had jj^rctuyf ^ a quantity of nux vomica, and by means of one Cooper, employed Marsh and Co., lightermen, to enter it for cxporation, and carry it to the ship. Exportation exempts it from the duty, which *is two shillings and six- *89 pence per pound. March and Co. entered it accordingly, and gave bond to tlie crown for its exportation, and sent it by their ligliter to the ship : and on the way to the ship, W. Marsden, J. Marsden, and Wil- kinson, who had charge of this lighter, took out the nux vomica, and substituted cinders and rubbish, the object being to get the nux vomica duty free. The indictment was against J. Marsden and Wilkinson for stealing the goods of Marsh and Co., and upon a case reserved, four of the judges, Richardson, Burroughs, Wood, and Graham, doubted whe- ther this were larceny, because there was no intent to cheat Marsh and Co., or to charge them, but the intent was to cheat the crown, but seven judges (Best, J., being absent) held it a larceny, on the grounds that Marsh and Co. had a right to the possession until the goods reached the ship, and had an interest in that possession, and that the inteut to de- prive them of that possession wrongfully, and against their will, was a felonious intent as against them, because it exposed them to a suit upon their bond, and that even if there had been no intent as against them, the intent to cheat the crown was, in the opinion of most of the seven judges, sufficient to make it a larceny.(^) AVhere goods are in the possession of the wife, they must be laid as Goods, Ac, the goods of her husband ; thus if A. is indicted for stealing the goods '° ^^^ P"**- of B., and it appears that B. was vt.feme covert at the time, A. must be i]^^ ^ifo. aci|uitted.(.:) And even if the wife have only received money as the agent of another person, and she is robbed of that money before her husband receives it into his possession, still it is well laid as his money in an indictment for larceny. An indictment charged the stealing of a hi. Bank of England note, the property of E. Wall, averring, in the usual way, that the money secured by the note was due and payable to E. Wall : it appeared that E. Wall's wife had been employed to sell sheep belonging to her father, of or in which her husband never had (z) Rex V. Wymcr,=' 4 C. & P. 301. It is not stated in the report whether the prisoner was a member of the society or not ; if not, it seems difficult to see how any doubt could arise as to the property being rightly laid in the innkeeper, who iiad the actual possession, which, (unless it be the possession of a feme covert or servant, which is, generally .=!peakiug, the possession of the husband or master) is enough to support an action of trespass or trover, Armory v. Delaraire, 1 Str. 505. 1 Sni. Lead. C. 151, and an indictment, although the possession were wrongfully obtained ; for " if A. steals the horse of B., and after C. steals the same horse from A., in this case C. is a felon, both as to A. and as to B.' I Hale, 507. 0. S. G. (v) Ilex r. Wilkinson and others. Mich. T. 1821, MS. Bayley, J., and Russ. & Ry. 470. («) 1 Hale, 513, He may, however, be indicted again for stealing the goods of the hus- band. Ibid. • Eng. Com. Law Reps. xix. 43C. 89 OF LARCENY. — OWNERSHIP OP THE GOODS. [BOOK IV. either possession or any interest, and sbc received the note in payment for the sheep, and it was stolen from her before she left the place where she received it. It was objected that the note never was the property of E. Wall, cither actually or constructively ; the money secured by it was not his, and he had no qualified property in it, as it never was in his possession ; but it was held, that the property was properly laid.(o) Goods of a But if the husband be a convicted felon, the goods in the possession of convicted ^jjg ^jfg ^ugt be laid as the property of the queen. In one count the prisoner was charged with breaking and entering the house of E. An- drews, and stealing her property; in another count, the property was laid in the queen; at the time the house was broken into, and the property stolen, the husband of E. Andrews was in gaol under sentence of imprisonment on a conviction for felony; all the property had been the husband's, and had remained in the house, and the wife continued in possession of the house and goods, till they were stolen ; and, on a case reserved, it was held that the prisoner could only be convicted of larceny on the second count, which laid the property in the queen. (■?>) *90 *The real owner of goods will not be deprived either of the pro- Tho own- perty or possession in law of them by a felonious taking. If, therefore, ershipwill j^ f^teal the goods of B., and afterwards C. steal the same goods from not be di- o ^ o vested from A., in such case C. is a felon, both as to A. and as to B., and he may the true ^^g indicted for stealing the goods of B.(f/)| Upon this subject Gould, an^uter- J-, in delivering the opinion of the twelve judges in a modern case, mediate gaid, '< It is a rule of law equally well known and established, that the taking.^ possession of the true owner cannot be divested by tortious taking ; and therefore if a person unlawfully take my goods, and a second person take them from him, I may, if the goods were feloniously taken, indict such second person for the theft, and allege in the indictment that the goods are my property : because these acts of theft do not change the possession of the true owner." And he further stated it to be his opin- ion that the doctrine would also hold where the goods are taken from the possession of the true owner by means of fraud: as otherwise a man might derive an advantage from his own wrong, (f) But a distinction is taken in the following case. If A. steals the horse of B., and afterwards delivers it to C, who was no party to the first stealing, and C. rides away with it, aninio furandi, yet C. is no felon to B. : because, though the horse was stolen from B., yet it was stolen by A., and not by C, for C. did not take it ; neither is he a felon Ownership *« ^"^ ^^r he had it by his delivery.(/) sufficient There is no doubt that there may be a sufficient ownership of the where goods Stolen in a person who has only a special 'property in them ; and only a spe- that they may be laid as the goods and chattels of such person in the <''«/i"'^i'«''- indictment. A lessee for years, a bailee, a pawnee, a carrier, and the goods. Yik^, have such special property ; and the indictment will be good, if it (a) Rex V. Roberts, '^ Y C. & P. 485, Littledale, J., after consulting Patteson, J. (b) Reg. V. Whitehead,^ 9 C. & P. 429. [d) 1 Hale, 507. 2 East, P C. c. 16, s. 90, p. 654. (c) By Gould, J., 0. B. 1790, in Wilkin's case, 1 Leach, 522, 523. (/) 1 Hale, 507. f [If the goods of A. be stolen by B. and afterwards they be stolen from B. by C. an in- dictment against the latter may allege the title to be in cither A. or B. at the election of the pleader. Ward v. The People, 3 Hill, 395.] * Eng Com. Law Reps, xxxii. 594. ^ Ibid, xxxviii. 165. CHAP. IX. § III.] OWNERSHIP OF THE GOODS. 90 lay tlic property of the goods either in the real owners, or in the per- sons having only such special property in thein.(y)f But this position and the passage cited in support of it from East have Lcen questioned, and it has been observed that, '< That the law so declared in two text books of standard authority is uncjuestionably not reconcileable, in all its parts, with the decisions cited above in Hex v. Belstcad, and Hex v. Brunswick. (A) The following clear and succinct observations, which have been allowed to appear in this work, will, it is conceived, be deemed valuable in pointing out the true legal distinctions which govern cases of this nature : <' If the owner parts with the right of possession for a time, so as to be deprived of the legal power to re- sume the possession during that time, and the goods are stolen during that time, they cannot be described as the goods of such owner ; but if the owner parts with nothing but the actual possession *when he thinks *91 fit, the goods may be described either as his goods, or his bailee's. In the latter case he does not for an instant part with the general right of possession; he confers a qualified right only, which he may put an end to when he will; in the former case, he parts with the whole right of possession for the time. The bailee for safe custody, the carrier, the tailor, the pawnee, have never more than a partial right; the owner may resume the goods, on satisfying their lien, when he will. The acistcr is in the same situation, and the decision as to him, in Rex v. Woodward, only is, that the cattle may be described as his, not that they must. The ground of decision in Bex v. Belstead, and Bex v. Brunswick, was that as the owner had parted with the right of posses- sion for the time, he had nothing but a reversionary interest, and could not have brought trespass." (/t)| (ff) 1 Hale, 513. 1 Hawk. P. C. c. 33, s. 47. 2 East, P. C. c. IG, s. 90, p. 652. The pas- sage in the text is founded on the passage in East. The passage cited from Hawkins docs not support the position in the text, but onl}- sliows that the goods may be hiid in the bailee ; and tlie passage iu Hale is in favour of the distinction drawn by Bayley, B. : it is, " If A. have a special proi)erty in goods, as by pledge or a lease for years, and the goods he stolen, they miisf be supposed in the indictment [to be] the goods of A. U A. bail goods to H.. to keep for him, or to carry for him, and B. be robbed of them, the felon may be indicted for larceny of the goods of A. or B., and it is good cither way, for the property is still in A., yet B. hath the possession, and is chargeable to A. if the goods be stolen, and hath the property against all the world but A." C. S. G. (h) Ante, p. 87. (/() MS. Observations of Bayley, B. 3 Burn's Just. D. & W. 4G3. I {In Massachusetts, it is held that a bailee of goods attached, who has engaged to re- deliver them to the attaching officer on demand, is a mere servant, and has no property in the goods — and therefore, that the goods, when stolen from such bailee, cannot properly be alleged in an indictment to be his property. 14 Mass. Bep. 217, Commonwealth r. Morse. The same is held in New York, 8 Cowen, 137, Norton v. The People. The doctrine is not re- ceived in New Hampshire. 1 New Hampshire 11. 289, Poole v. Symonds. The legal possession which a master has of his runaway slave will warrant an indictment for stealing him " from his owner and employer'' after he has run away. 2 Nott and M-Cord. 1, State V. Miles. See also 2 Car. Law Uepos. 291, State v. Davis. But it has been held in Virginia, that where the indictment alleges that property was stolen " out of the possession'' of the bailer, jjroof that it was taken from the bailee will not support the charge : and also that an allegation that a slave was stolen " from the posses- sion" of the master, is not supported by proof that the prisoner feloniously took and carried the slave away " while he was a runaway." 1 Virginia Cases 14, Commonwealth v. Wil- liams, ib. 122, Commonwealth v. Ha3'S. These decisions probably proceeded on the supposed necessity of strict proof of the allegation in the indictment. For it was decided by the same court that it is not necessary to aver that goods were stolen from the j)ossession of the owner, or of any other person, though a statute of Virginia declares, " that if any person shall steal, &c., from tlie possession of any other person," &c., he shall be punished, &c. 2 Virginia Cases, 135, Tompson ik Commonwealih. Ib. 228, Angel v. Commonwcalt J [In an indictment for larceny, proof that the person alleged to have been the owner cattle. 91 OF LARCENY. — OWNERSHIP OF THE GOODS. [BOOK IV. Where goods belonging to a guest at an inn are stolen, they may be laid to be the property either of the innkeeper or the guest. (i) And linen stolen from a washerwoman, by whom it was taken in to wash in the course of her business, may be laid as her goods. (/) In cases of this kind it is considered that the parties have a possessory property j being answerable to their employers, and being capable of maintaining an appeal of robbery or larceny, and having restitution. (Z;)^ Agister of It has also been holden, that an agister of cattle has such a special property in them that they may be laid as his goods in the indictment. When this case was referred to the judges, after the conviction of the prisoner, there was at first some doubt upon the point: one of the judges observing that au agister of cattle is not liable for them at all events, like an innkeeper for the goods of his guest; but ultimately all the judges agreed that the conviction was right. (?) Where a house was taken by Kyezor, and Miers, who lived on his own property, carried on the business of a silversmith there for the benefit of Kyezor and his family, but had himself no share in the profits, and no salary, but had power to dispose of any part of the stock, and might if he pleased take money from the till as he wanted it, and some- times bought goods for ths shop, and sometimes Kyezor did : it was held that Miers was a kind of bailee of the stock, and that the pro- perty in a watch stolen out of the house might properly be laid in him.(?n) In a case where, upon an indictment for stealing a window-glass and hammer-cloth from a carriage, it appeared that the prosecutor, in whom the property was laid, was a coach-master, and had the care of the car- riage, which stood in a coach-house in his yard, at the time the articles were stolen from it; an objection that the property should have been laid in the owner of the carriage was overruled. (h) And a case was at *92 the same time referred to by the court, in which a prisoner *was con- victed of stealing a chariot-glass from a lady's chariot which had been put up at a coach-yard at Chelsea, while the owner of it was at Kane- lagh ; and the property was laid to be in the master of the yard, where the chariot had been put up.(o) whei-e^the If goods seized under a writ of fieri facias are stolen, they may be goods were described as the goods of the party against whom the writ issued, for, '-g' "'*'° *" though they are in custodia leyis, the original owner continues to have (0 Todd's case, 0. B. iTll. 2 East, P. C. c. 16, s. 90, p. 653. ij) Packer's case, C. B. 1714. 2 East, P. C. c. IG, s. 90, p. 653. 1 Leach, 357, note (a). [k) 2 East, P. C. c. 16, s. 90, p. 653. [l) Woodward's case, Leicester Sum. Ass. 1796, Mich. T. 1796, and Hil. T. 1797, at which last meeting of the judges, 4 Inst. 293, was referred to as showing that an agistator has a possession, and 2 Rol. Ab. 551, as an authority, that an agistator may maintain trespass ao-ainst any one Avho takes the beasts. 2 East, P. C. c. 16, s. 60, p. 653. 1 Leach, 357, note {a). See Rooth v. Wilson, 1 B. & Aid. 59. {m) Reg. V. Bird," 9 C. & P. 44, Bosanquet, J. See this case, ante, vol. 1, 829. in) Taylor's case, 0. B. 1785. 1 Leach, 356. (o) Statham's case, 0. B. 1770. 1 Leach, 357. had a special property in the thing, or that he had it to do some act upon it or for the purpose of conveyance or in trust for the benefit of another, would be sufficient to support the allegation in the indictment. State v. Somerville, 21 Maine, 14.] f^rWhen a horse got loose from the owner and was taken in the field of a third person and placed in his stable from whence he was stolen ; held, that he was in the constructive possession of the owner, and in the actual possession of such third person, and that the in- dictment may well allege the possession to be in the owner or such third person. Owen v. The State, 6 Humphreys, 330.] » Eng. Com. Law Reps, xxxviii. 29. CHAP. IX. § III.] OWNERSHIP OF THE GOODS. 92 a property in them until they arc sold : if be pays the debt be is enti- tled to bave tbem returned, and bis debt to tlie plaintiff in tbe suit con- . tinucs undiminished, until the goods seized are applied to its liquida- tion. And tbe sheriff is accountable to tbe original owner for tbe goods so seized. A sheriff's officer seized goods under a writ of fieri facias against J. S., and afterwards stole part thereof. The indictment against him described tbe goods as the goods of J. S., upon which it was objected that they were no longer tbe goods of J. S., and should have been described as the goods of the sheriff: but, upon tbe point being saved, the judges held that notwithstanding the seizure, tbe general pro- perty remained in J, S., as the loss would fall upon him if they did not go to liquidate the debt, that the seizure left tbe debt as it was, and that tbe whole debt continued until the goods were applied towards its discbarge. (7>)f But tbe indictment will not be sustainable if it appear in evidence Ownership that tbe party in whom tbe goods arc laid had neither the property "^ox^^^H^^^ the possession of them; as is usually the case of a feme covert or ser- in tho cus- vant, who bave in their custody the goods of tbe husband or master.(5) g^^^^^^Q^ In a late case it was decided that tbe goods in a dissenting chapel vested in trustees could not be described as the goods of a servant who had merely the care of tbe chapel, and the things in it, to clean and keep them in order, though he had the key of the chapel, and no person except the minister had any other key. The indictment was for steal- ing the chandelier and sconces of a dissenting chapel vested in trustees : and the things were described as the property of tbe trustees, and also of one Evans. Tbe evidence as to the property of tbe trustees failed, and it appeared that Evans was servant to tbe trustees, and had the care of the chapel and tbe things in it, for tbe purpose of cleaning and keeping tbem in order, and that he had tbe only keys, except that tbe minister bad a key of tbe vestry, from whence be could enter tbe chapel. Upon a case reserved, the judges were of opinion that the property could not be considered as the property of Evans. (/•) But though gene- rally speaking, the possession of tbe servant is the possession of the master, (s) yet there arc some cases where a kind of special property has been considered to exist in the servant. Respecting tbe case lately mentioned, of a master delivering money to his servant to carry to a certain place, and then robbing bis servant on the road, a learned writer observes, "I see no objection to laying the property of the goods in the servant, for though, in general, it may be said that he has no property in *tliem, as against his master, although be has against every other *93 person ; yet having a clear right to defend his possession against A.'s unlawful demand, the special property still remains in the servant. But a taking from the servant of the money or goods of his master in bis (/)) Rex V. Estall, Mich. T. 1822, MS. Bayley, J. See Lucas v. Nockells,* 10 Bing. R. 157. (q) 2 East, P. C. c. 16, s. 90, p. 652, 653. {r) Rex V. Hutchinson, East. 1820, MS. Bayley, J., and Russ. & Ry. 412. They should he laid in such cases as the property of one of the members "and others." Rex v. Boulton,'' 5 C. & P. 537,j30«?, p. 102. (s) Post, Chap. XVII, On Larceny ^r., hy Servants. And ante, p. 21, et seq. as the dis- tinction between a bare charge and a possession of goods delivered. f {See Yelv. 44, note (2). Clayt. 105, Mayor of Beverley's case. 6 Price, 114, Rex v. Slopcr & al. 2 N. Ilamp. Rep. 208, Chnrchhill i^.' Warren. Ibid. 432, Folson v. Chesley. Acc.j [Palmer v. The People, 10 Wend. 105.] » Eng. Com. Law Reps. xxv. 71. '' Ibid. xxxv. 445. 93 OF LARCENY OWNERSHIP OF THE GOODS. [BOOK IV. presence, by putting in fear, is taking from the master, and tlie offender may be indicted for robbing hira."(/) If a servant be employed by his master to receive money for him, and be robbed of such money before ho take it to his master, the money may be described as the money of the servant. Upon an indictment for robbery of the moneys of S. Webb, it appeared that \Yebb's servant was sent out by his master to receive money from his customers, and was robbed of the money he had received, as he returned home. Mr. B. Alderson was inclined to think the money could not be laid as the property of the master ; for it was difficult to see how such an offence as the crime of embezzlement could have been a part of our criminal law, if the possession by the servant of the property, which had never come to the hands of the master, were construed to be the possession of the mastery if it were, every servant, who converted to his own use property received by him for his master, would be guilty of lar- ceny. («) Deakin's The question concerning the sort of possession, or special property case. •n'hich a servant may have in the eoods of his master, was much dis- box was cussed in a modern case, where a stage-coach having been robbed of a stolen fromj^ox containing a variety of articles, it became material to determine coaclf on whether the goods so stolen could be laid as the property of the coacli- its journey man. There were three counts in the indictment: but one of them hokfen that""^^^*^^ ^^'^^ ^^^ property in the coach proprietors failed on account of a it. might be variance ; another, which laid the property in persons unknown, was laid as the gjgg^g^j ^^ ^j^g court as improper in this case, and the case, therefore, the^driver necessarily proceeded upon the remaining count, which laid the pro- of the perty in the coachman. It appeared in evidence, that the box was delivered by the servant of a tradesman in London to the bookkeeper at the inn from which the coach set off, who called it over amongst other things in the way-bill, and delivered it to a porter, who put it into the coach; and that the coachman, in whom the property was laid, drove the coach to a place about thirty-eight miles from London, during which journey the box was stolen from the coach by the prisoners. It also appeared, that the proprietors of the coach never called upon the coachman to make good any losses, except when they happened by his neglect; and that for goods stolen privately from the coach they never expected any compensation from the driver. The jury having found *04 the prisoners *guilty, the case was saved for the consideration of the judges; and, after it had been ably argued, a majority of the judges were of opinion that the property was well laid to be in the driver. Hotham, B., who delivered their opinion, said, that the material ques- U) 2 East, P. C. c. 16, s. 90, p. 654, ante, p. 87. \u) Pteg. V. Rudick,^ 8 C. & P. 237. His lordship discharged the jury and directed a new bill laying the property in the servant to be preferred. Rex v. Bull, 2 Leach, 841, cited in Bazley's case, shows that the servant would not have been guilty of larceny if he had converted the money to his use ; but a distinction seems to exist between cases where the question arises between the master and servant, and between the master and the third person. " As between the master and servant or agent, where the master has not otherwise the posses- sion than by the receipt of the servant or agent, the servant or agent cannot be charged with a tortious or felonious taking, but as against a third person where there could be no question of a trust, the receipt of effects by an agent by the master's directions might be considered as a receipt by the master himself; and in the common course of business there is often no receipt or possession by the master." Per Graham, B. Rei. v. Remnant, Rnss. & Ry. 1-36, post, p. 94, and see Rex v. Murray, R. & M. C. C. R. 2lQ, post, tit. Embezzlements And Rex v. Deakin, infra. C. S. G. » Eng. Com. Law Reps, xxxiv. 368. CHAP. IX. § III.] SPECIAL PROPERTY. 94 tion was, whether the driver had the possession of the goods, or only the bare charge of them; but that the case was not open to that dis- tinction : for although, as against his employers the masters of the coach, the mere driver can only have the bare charge of the property committed to him, and not the legal possession of it, which remains in the coach-master ; yet, as against all the rest of the world, he must be considered to have such a s})ecial property therein, as will support a count charging them as his goods ; for he has in fact the possession of and control over them ; and they are entrusted to his custody and dis- posal during the journey. And the learned judge further observed, that- the inconvenience would be great indeed, if the law were otherwise : as tbe difhculties and mistakes which must unavoidably arise in seeking after all the persons ccnccrned as proprietors of a stage-coach, for the purpose of prosecuting an indictment of this nature, would be endless and insurmountable. That the law, therefore, on an indictment against the driver of a stage-coach, on the prosecution of the proprietors, con- siders the driver to have the bare charge of the goods belonging to the coach ; but on a charge against any other person, for taking them tor- tiously and feloniously out of the driver's custody, he must be considered as the possessor. (y^ Property may be laid as belonging to the real owner though it never Property was actually in his possession but in the possession of his agent o^b' ; arboiong-*^ as in the following case : Turner as agent for Nash sent up notes to ing to tho 3Iorgan, another of Nash's agents, and Morgan as agent for Nash sent ^j^"' '^u^f^ them by the coach directed to Walker : and the prisoner stole them i,as only from the coach. The indictment having described them as Nash's it '-"-'•^" i".*''*' was urged that they could not be so described, because Nash never had^,j-ij\3agent. them, except by the hands of his agents; but all the judges thought they had been rightly described, and held the conviction right.(«") But the property cannot be laid in a man who has never had either actual or constructive possession, except as far as it resulted from the posses- sion of the thief and of persons acting under him. Thus where Paul had ordered a hat of Beer and the prisoner sent for it in Paul's name and got it, and was indicted for stealing Paul's hat, the judges held that the property could not be said to be in Paul.(.r) Clothes, and other necessaries provided for children by their parents, Owncrshii> are often laid to be the property of the parents, especially while the pfothes children are of tender age ; but it is holden good cither way.(^)f There etc., of are cases, however, of exclusive property in the children. Thus, in a '^'"'^^'■cn. case where the prisoner was charged with stealing wearing apparel, the property of J. Wilson, and it appeared in evidence that the wearing apparel had been furnished by J. Wilson to his son George, and that the son was nineteen years of age, and *bound apprentice to his father, *05 who had covenanted to find him in clothing; the court held that the indictment was defective, and that the wearing apparel was exclusively (i-) Rex V. Deakin and Smith, 0. B. 1800. 2 Leach, 8G2, 876. 2 East, P. C. c. 16, s. 90, p. 653. (w) Rex X. Remnant, Mich. T. ISOt, MS. Barley, J., and Russ. & Ry. 136. (x) Rox P. Adams, East. T. 1812, MS. Bayley, J., and Russ. & Ry. 225. (.V) 2 East, P. C. c. 16, s. 01, p. 654. Ha^^ne's case, 12 Rep. 112. f [Necessary articles furnished by a father to his infant son for use may well be described in an indictment as belonging to cither the parent or child. Slafc v. Williamn, 2 Strob- hart, 220.] 95 OP LARCENY. — OWNERSHIP OF THE GOODS. [boOK IV. the property of the son, who had been furnished with it in pursuance of the condition of the indenture. (.:) And in a case which occurred at the Old Bailey above a century ago, upon the court doubting whether the property of a gold chain, which was taken from a child's neck who had worn it for four years, ought not to be laid to be in the father, an ancient clerk of the court said that it had always been usual to lay it to be the goods of the child in such case ; and that many indictments which had laid them to be the property of the father had been ordered to be altered by the judges. («) Where the prisoner was indicted for stealing a pair of trowsers, the property of J. Jones, and it appeared that J. Jones bought the cloth of which the trowsers were made and paid for it, but the trowsers were made for his son Thomas, who was seventeen years of age : and J. Jones stated that he found clothes for his son, who was not his appren- tice, bvit a labourer like himself, and worked for the same master, but at different work, and lived with his father. Patteson, J., said, " I think the property is well laid. It may be laid in these cases either in > the father or the child; but the better course is to lay it in the child."(Z-) Scott's In a case where the prisoner was indicted for sheep stealing, the pro- perty of '^°'pGi'ty was laid in Simon Dodd the elder, Simon Dodd the younger, and sheep laid several other persons of the same name. The evidence was, that Simon jointly in PqJ,^ i\^q gicler, and a son of his, who afterwards died, took a farm on the grand- ... ' ,, ipi i-i i- father and their joint conccrn, and kept a stock of sheep, which was their joint grand- property, upon it; that the son died intestate about five years ago, leaving a widow, who died soon after him, and several children (being the S. Dodd the younger, and the other persons named in the indict- ment); that no division was ever made of the stock; and that it was from the same stock that all the sheep vipon the farm at the time of the felony committed were bred; some before and some after the son's death. It was also proved, that S. Dodd the elder continued to occupy the farm and use the stock as before, considering himself as acting for his grandchildren, who were still infants, in respect of one moiety ; and that he accordingly kept a regular account with them in his books. The prisoner having been convicted, a question was submitted to the consideration of the j'udges, whether the property were well laid jointly in the grandfather and grandchildren. And the judges were of opinion that it was well laid; for though in the case of joint traders there was no jus accrescendi, and the remedy survived; yet here it was proved, by the evidence of the grandfather, that he held one moiety for his grandchildren; and he might make distribution among them. And some of the judges also said, that the property might have been laid to be in the grandfather alone, who was in possession of the children's *96 moiety as their agent. The *judges were all of opinion that it was not necessary that the property in the thing taken should be the strict legal property, (c) (z) Forsgate's case, 0. B. 1787. 1 Leach, 463. \a) Anon. 0. B. 1701, 2 East, P. C. c. 16, s. 91. p. 654. 1 Leach, 464, note (a). If ap- parel be put upon a boy, this is a gift in the law ; for the boy hath capacity to take it. Hayne's case, 12 Rep. 112. (b) Reg. V. Hughes,' Salop Spr. Ass. 1842, MS. S. C. 1 C. & Mars. 503. C. S. G. (c) Scott's case, cor. Chambre, J., Northumberland Sum. Ass. 1801, Mich. T. 1801, 2 East, P. C. c. 16, s. 91, p. 655. Russ. & Ry. 13. a Eng. Com. Law Reps. xli. 323. CHAP. IX. § III.] SPECIAL PROPERTY. 96 In another case where the prisoner was indicted for stealing some <^Jaby's drapery goods, which were stated in the indictment to he the property );^^,';;,^^„^g_ of ]jciijainin Dodge and Sarah Chik-ott, widow, it was ohjccted that the "oi'^ioii of property in the goods was uiisdcscribed. The facts upon which the ob- L°,f "yr! jection was taken, were that the goods in question had been part of the vivingi)iut- ioint stock in trade of B. Dodfrc, and one Chilcott, the hitc husband of "'^'■' ""'^ • 1 1 /> ii 1 /• • 1 tho widow S. Chilcott, who died a short tune only before the thctt was committed, of a de- He died without a will, leaving S. Chilcott and some young children ; coa.«ccl and no administration of his effects had been granted; but H. Chilcott, }|y[,[y,j to from the time of his death, acted as a partner, and regularly attended ho a suffici- the business of the shop. The goods in question were stolen on the Gth g[|j ^"_"'"*^''' of January, after the death of the husband, who died about the Christ- mas preceding : and on the 20th of January a division was made of the remaining stock in trade; S. Chilcott taking one-half, and B. Dodge the other half. Upon these facts it was contended, on the part of the pri- soner, that the children, in respect of their interest under the statute of distributions, should have been named with B. Dodge and S. Chilcott, as joint proprietors ; or that the property should have been alleged to be in the ordinary and surviving partner. But the learned judge, before whom the prisoner was tried, held that the actual possession in B. Dodge and S. Chilcott, as owners, was sufficient; upon which the prisoner was convicted : and the judges afterwards, upon the case being saved for their consideration, held that the conviction was right.(cZ) A case has been already mentioned, in which, upon an indictment for Ownership stealing- pheasants, restrained of their liberty, it appeared in evidence "^^ sn^o by that the prosecutor, in whom the property in the pheasants was laid, ned porson. was not a qualified person to keep or shoot game ; whereupon an objec- tion taken that he could not have any property in them, or any legal possession sufficient to support the indictment, was overruled. (e) It is laid down^ in some of the books, that larceny cannot be com- Owncr.«lup mitted of things wherein no person has any determinate property ; and, ? Jl^'^^g"'^"" therefore, that the taking away treasure-trove, or waif, or stray, before tray.s, they have been seized by the persons who have a right thereto, cannot ^■'■''*^''^' *'^-' be felony. (/) But it is observed, that there seems to be some incor- rectness in the generality of this position ; as, although the lord has no determinate property in waifs, treasure-trove, &c., till seizure, the true owner, though unknown, who has lost, or been robbed of the things, has still a property in thcm.(y) And as to the reason assigned by one writer of these things not being the subject of larceny, namcl}', the un- certainty of the true owner,(/t) it is *observed, that it, at least, implies *97 that if the owner be known, larceny may be committed of them.(i) But, further, it is well settled that larceny may be committed by ^.^"/Jtho' stealing goods, the owner of which is not knoirn : and that it may be person of stated in the indictment that the thin";s stolen were the goods of a pcr-!''*^ owner ° . " . . IS un- son to the jurors unknown. (J) But upon prosecutions of this kind j^uown. t (d) Ucx V. Gahy, cor. Chanibre, J., Taunton Spr. Ass. 1810, MS. Russ. & Ry. 178. (e) Jones's case, anif. p. 85. (/) 3 Inst. 108. 1 Hale, 510. 1 Hawk. P. C. c. 33, s. 38. ((/) 2 East, P. C. c. 16, s. 40, p. 600, and s. 83, p. Gol. (A) Pwlt de Pace, 131. And also in 3 lust. 108, the reason is given that doiiiinus rcrum non appurct. (i) 2 East, P. C. c. IG, s. 40, p. COG. \j) 1 Hale, 512. 2 Halo, 181. 1 Hawk. P. C. c. 33, s. 44. 2 East, P. C. c. IG, s. 88, p. G51. Anon. Dy. 99, a. pi. Gl, 285 a. Webster's case, aiite, p. TO. And see note {v),posL 97 OF LAllCENY. — OWNERSHIP OP THE GOODS. [book IV. An indict- ment can- not be sus- tained for stealing goods of a person un- known, if it appear tliat tlio owner is really known. some proof must be given sufficient to raise a reasonable presumption that the taking was felonious, or invito domino ; and Lord Hale, C. J., said that he never would convict any person for stealing the goods cu- jimlam iynoti, merely because the person would not give an account how he came by them, unless there were due proof made that a felony had been committed of those goods. (/j) It is said, therefore, with res- pect to these cases, that the true ground upon which persons so indicted, may in any instance, claim to be acquitted, when the other facts, ne- cessary to constitute the crime of larceny, appear upon the evidence, seems to be a want of the proper proof that the taking was felonious, or invito domino, and not the want of any property in the true owner, who, by losing his goods, does not lose his property in them until seizure by some other person having a right to seize in such cases. (A It should be well observed, however, with respect to prosecutions for stealing goods of a person unknown, that an indictment, alleging the goods to be the property of a person unknown, will be improper if the owner be really known ; and that in such case the prisoner must be dis- charged of the indictment so framed, and tried upon a new one for stealing the goods of the owner by name.(m) In a case where the pri- soner was charged with stealing a box of goods from a stage-coach, one of the counts of the indictment which stated the box to be the property of persons unknown, was rejected by the court, on the ground where it was in the power of a pleader to state a legal proprietor, as in this case, by laying the property to be in the persons from whom and to whom the goods were sent, it was improper to lay the property as belonging to persons unknown. (n) And the same principle is stated to have been acted upon in a case where the indictment charged the prisoner as an accessory before the fact to a larceny, and it appeared, from the opening of the case by the counsel for the prosecution, that the grand jury had found the bill upon the evidence of the thief, who was about to be called as a witness to establish the guilt of the prisoner, upon which the learned judge interposed, and directed an acquittal. (o) Where the owner might easily have been ascertained, an indictment for stealing the goods of a person unknown, is not maintainable. The first count laid the property stolen in persons who were therein named, and the second count laid it in persons unknown ; evidence was offered of the ownership as laid in the first count, but *the witness could not recollect the Christian names of some of the owners : the second count was then relied upon. Richards, C. B., " I think the prisoner must be acquitted. The owners, it appears, are known, but the evidence is de- fective on this point. How can I say that the owners are unknown ? I remember a case at Chester, before Lord Kenyon, where the property was laid in a person unknown ; but upon the trial, it was clear that the owner was known, and might easily have been ascertained by the pro- secutor; Lord Kenyon directed an acquittal. "(^^) *98 {k) 2 Hale, 290. [l] 2 East, P. C. c. 16, s. 88, p. G51. (m) 2 East, P. C. c. 16, s. 88, p. G51. («) Rex V. Deakin and Smith, 2 Leach, 862, ante, p. 94. (o) Walker's case, cor. Le Blanc. J., Gloucester Sum. Ass. 1812. 3 Camp. 264. And see also as to the statement of the principal felon being unknown in the indictment against a receiver of stolen goods, post, Chap. Of Receiving Stolen Goods. (p) Rex V. Robinson, > Holt, N. P. "C. 595. 2 Stark. Ev. 608. The averment in the in- dictment always is "the jurors aforesaid," i. e. the grand jury "unlcnow.n" and in Rex v. * Eng. Com. Law Reps. iii. 191. CHAP. IX. § riT.] GOODS OF A CHURCH. 98 It is said that when a felony has heen committed by stealing the goods of a person unknown, the king shall have the goods. (r/) The property in the bells, books, or other goods, belonging to a church, Ownership has been already spoken of.(r) It is clearly settled that there can be"ffe'"°'!^ no property in a dead corpse.(i) If, however, a shroud bo stolen from to o'church, a corpse, it may be laid to be the property of the executors, or whoever «"airing, any such road, it shall be sufficient to state any such pro- perty to belong to the trustees or commissioners of such road, and it shall not be necessary to specify the names of any such trustees or com- missioners." Sec. 18. Sec. 18, with respect to property under commissioners of sewers. How in in- enacts ''that in any indictment or information for any felony or misde- for ofl'cn- meaner committed on or with respect to any sewer or other matter ces com- within or under the view, cognizance, or management of any commis- se'we*rs the sioners of sewers, it shall be sufficient to state any such property to property belong to the commissioners of sewers within or under whose view, l^.y cognizance, or management, any such things shall be, and it shall not be necessary to specify the names of any of such commissioners." 7 Geo. i, c. The 7 Geo. 4, c. 46, an act for the better regulation of copartnerships Stock"^ of certain bankers in England, provides in what cases, and under what banks. circumstances, copartnerships of more than six persons may carry on business in England; and by sec. 9, ''all indictments, informations and prosecutions, by or on behalf of such copartnership, for any stealing or embezzlement of any money, goods, effects, bills, notes, securities, or other property of or belonging to such copartnership, or for any fraud, forgery, crime, or offence committed against or with intent to injure or defraud such copartnership, shall and lawfully may be had, preferred, and carried on in the name of one of the public officers nominated as aforesaid, for the time being of such copartnership, and that all indict- ments and informations to be had or preferred by or on behalf of such copartnership against any person or persons whomsoever, notwithstand- ing such person or persons may happen to be a member or members of such copartnership, it shall be lawful and sufficient to state the money, goods, effects, bills, notes, securities, or other property of such copart- nership, to be the money, goods, effects, bills, notes, securities, or other property of any one of the public officers nominated as aforesaid, for *104 the time being of such copartnership, and that any forgery, *fraud, crime, or other offence committed against, or with an intent to injure or defraud any such copartnership, shall and lawfully may in such indict- ment or indictments, notwithstanding as aforesaid, be laid or stated to have been committed against, or with intent to injure or defraud any one of the public officers nominated as aforesaid, for the time being of such copartnership, and any offender or offenders may thereupon be law- fully convicted, for any such forgery, fraud, crime, or offence : and that in all other allegations, indictments, informations, or other proceedings of any kind whatsoever, in which it otherwise might or would have been necessary to state the names of the persons composing such co- partnership, it shall and may be lawful and sufficient to state the name of any one of the public officers nominated as aforesaid, for the time being of such copartnership ; and the death, resignation, removal, or any act of such public officer, shall not abate or prejudice any such action, suit, indictment, prosecution, information, or other proceedings, commenced against or by or on behalf of such copartnership, but the same may be CHAP. IX. § III.] BY STATUTES. 104 continued, prosecuted, and carried on in tlic name of any other of the public officers of such copartnership for the time being." It is not imperative upon the banking companies constituted under this act to prosecute in tlic name of one of their public officers ; thus it has been held in a case of forgery that they arc not bound to allege an intent to defraud one of their public officers, but may lay the intent to be to defraud one of the shareholders by name, "and others," under the 1 Wm. 4, c. GG, s. 28.(0 In an indictment for forgery it has been held sufficient to aver the intent to be to defraud II. 13., " then and there being one of the public officers for the time being of a certain copartnership of persons carrying on the trade and business of bankers in Kngland, exceeding the number of six persons, and called the National Provincial Bank of England ;" and that it is not necessary to aver that II. B. was nominated under the 7 Geo. 4, c. 46. (m) The return made to the Stamp Office under the 7 Geo. 4, c. 46, is not the only mode of proving that a person is a public officer; that fact may be proved by other evidence. («) The 7 Geo. 4, c. 46, was amended and continued by the *1 & 2 Vict. *105 c. 96, and is further continued by the 3 & 4 Vict. c. Ill, until the 31st 3 & 4 Vict. August, 1842, and sec. 2 of that act enacts, that "If any person or j^^j^^ "gj^pl, persons, being a member or members of any banking copairtnership banks. within the meaning of the said act, or of any other banking copartner- ship consisting of more than six persons, formed under or in pursuance of an act passed in the third and fourth years of the reign of king Wil- liam the Fourth, intituled < An act for giving to the corporation of the governor and company of the Bank of England certain privileges for a limited period, under certain conditions,' shall steal or embezzle any goods, money, effects, bills, notes, securities, or other property of or be- longing to any such copartnership, or shall commit any fraud, forgery, crime, or offence against or with intent to injure or defraud any such copartnership, such member or members shall be liable to indictment, information, prosecution, or other proceeding in the name of any of the officers for the time being of any such copartnership, in whose name any action or suit might be lawfully brought against any member or members of any such copartnership for every such fraud, forgery, crime, or offence, and may thereupon be lawfully convicted, and if such person (/) Reg. V. Beard,* 8 C. & P. 143, Coleridge, J. la Rex v. Burgiss,'' T C. & P. 488, Little- dale, J., had expressed great doubts on the point ; but in Rex v. James," 7 C. & P. 553, Patteson, J., had expressed an opinion that either the one mode or the other might be adopted. And it should seem that there is no doubt that an indictment laying property to belong to one member of such a company by name, " and others,'' Avould be good, espcciallj as the 7 Geo. 4, c. G4, s. 14, extends to " all joint stock companies ;" ante, p. 110. C. S. (i. (m) Reg. V. Beard, siqirn. So it has been held in an action brought in the name of a pul)lic oilicer of such a company, that it is not necessary to allege in the declaration that he is a member of the company, that he is resident in Kngland, or that he has been A\\\j registered as required by sec. 4 : but that it is sufficient to allege that he has been " dulj nominated and appointed, and now is one of the public officers of the said company ac- cording to the force, form, and effect of the said act of parlimcnt." Spiler xk Johnson, G M. & W. 570. So it has been held sufficient to state in the declaration that the plaintifT is tho manager of a certain joint stock copartnership, established for the purpose of banking, and that he has been duly named and appointed as the nominal plaintifl" on behalf of the co- partnership, under the provisions of the statute, without expressly stating that he has been duly named as manager, or that tlie copartnership has been established under the provision* of the act. Christie v. Peart, 7 M. & W. 491. (w) Edwards v. Buchanan,'' 3 B. & Ad. 788. Reg. v. Beard, supra, note (/). » Eng. Cora. Law Reps. x.\xiv. 329. •» lb. xxxii. 596. " lb. xxii. 628. ^ lb. xxxii.187. 105 OF LARCENY. — INDICTMENT. [boOK IV. or persons had not been or was or were not a member or members of such copartnership, any hiw, usage, or custom to the contrary notwith- standing." A clerk of a joint stock banking company, established under the 7 Geo. 4, c. 46, may be convicted of embezzling the money of the com- pany, although he is a shareholder and partner in the company. (n?i) Where an indictment in some counts stated that the prisoner was " employed as clerk to J. T., one of the public officers of the Carlisle and Cumberland Banking Company, and in the returns made to the stamp office under the 7 Geo. 4, c. 46, s. 4, <» the true name, title, and firm of the copartnership" was stated to be " The Carlisle and Cumber- land Joint Stock Bank ;" but the usual and only name employed by the company in their dealings was " The Carlisle and Cumberland Banking Company ;" and they were so described in a bond of the prisoner to the company ;" which was given in evidence ; it was held that there was no variance. (oo) Although the 3 & 4 Vict. c. Ill, inaccurately recites the title of the Friendly 1 & 2 Vict. c. 96, yct the latter act is extended by the former.(p) Society The Friendly Society Act, 10 Geo. 4, c. 56, s. 21, provides that Geo. 4, c. *' all real and heritable moneys, goods, chattels, and effects whatever, ■'^- and all titles, securities for money, or other obligatory instruments and evidences or muniments, and all other effects whatever, shall be vested in the treasurer or trustee of such society for the time being," <' and shall for all purposes of action or suit as well criminal as civil in law or equity, in anywise touching or concerning the same, be deemed and taken to be, and shall in every such proceeding (where necessary) be stated to be the property of the person appointed to the office of trea- surer or trustee of such society for the time being, in his or her proper name without further description ;" and such person is authorized to bring any prosecution touching the property belonging to the society, provided he has been thereunto authorized by the consent of the majo- rity of the members present at any meeting of the society or a commit- tee thereof, and no prosecution shall abate by the death of such person or his removal from office, but shall and may be proceeded in by the succeeding treasurer and trustee in the name of the person commencing the same. Where upon an indictment against the prisoner for stealing a 10?. note, the property of William Shildrick, his master, it appeared that Shildrick was the treasurer of a Friendly Society, and that the prisoner was clerk to that society, and also a trustee of it, and that he had been a trustee before he became clerk ; and the rules of the society had been re-cnrolled, in pursuance of the 10 Geo. 4, c. 56, as amended by the 4 & 5 Wm. 4, c. 40, and a rule of the society provided, that " as soon as 10?. more than is necessary for immediate use is in the box, it shall be delivered to the trustees chosen for that purpose, who shall dispose of it as the society shall direct, according to the 10 Geo, 4, c. 56, s. 13," and the prisoner had obtained the note from Shildrick under circum- stances which induced the jury to find that he obtained it with intent to steal it. It was held upon a case reserved, that the property in the note was properly laid in Shildrick, the treasurer, by his proper name, {tin) Reg V. Atkinson,* 1 C. & Jlars. 525. All the judf,'es. {oo) Reg. V. Atkinson, supra. [p) Reg. v. Atkinson, supra. * Eng. Com. Law Reps. xi. 287. CHAP. IX. § III.] BY STATUTES. 105 undtT the 10 Geo. 4, c. 5G, s. 21, and that upon this indictment, the prisoner, though one of the trustees of the society, might properly be convicted of hirceny in stealing the noto.(ry) Upon the trial, Bosan- quet, J., thought it so doubtful whether the prisoner could be consid- sered the servant of Shildrick, that he directed the jury to find the prisoner guilty of larceny only. The 9 Geo. 4, c. 92, which consolidates the laws relating to savings' favin;*?' banks, by sec. 8, vests the effects of such institutions in the trustee or ^""''''• trustees for the time being, and in all criminal proceedings the property may be stated to be that of the trustee or trustees for the time being, '< in his, her, or their proper name, without further description." The 5 & 6 Wm. 4, c. 23, s. 4, authorizes the laying the property of Loan any loan society in England and Wales in the proper name or names °o<='<""'-''- of the trustee or trustees of such society without further descriptif)n. The 5 (fc G Wra. 4, c. G9, an act to facilitate the conveyance of work- 5 & o Wm. houses and other property of parishes and unions, by sec. 7 provides^- ''•*''"'■ that "the guardians of the poor of every union already formed, or which houses, Ar. hereafter shall be formed, by virtue of the aforesaid act, passed in the fourth and fifth years of his present majesty, and of every parish placed under the control of a board of guardians by *virtue of the said act, *106 shall respectively, from the day of their first meeting as a board, become, or bo deemed to have become, and they and their successors in ofl&cc shall for ever continue to be, for all the purposes of this act, a corpora- tion, by the name of the guardians of the poor of the union, (or of the parish of ) in the county of ; and as such corpo- ration the said guardians arc hereby empowered to accept, take and hold, for the benefit of such union or parish, any buildings, lands, or heredi- taments, goods, effects, or other property, and may use a common seal ; and they are further empowered by that name to bring actions, to prefer indictments, and to sue and be sued, and to take or resist all other pro- ceedings for or in relation to any such property, or any bonds, contracts, securities, or instruments given or to be given to them in virtue of their office; and in every such action and indictment relating to any such property, it shall be sufficient to lay or state the property to be that of the guardians of the union, or of the parish of ; and in case of any addition to or separation of any parishes from any such union, under the authority of the said act, passed in th'3 fourth and fifth years of the reign of his present majesty, the board of guardians for the time being shall (notwithstanding such alteration) have and enjoy the same corporate existence, property and privileges, as the board of guar- dians of the original union would have had and enjoyed had it re- mained unaltered." By the 1 Vict. c. 3G, s. 40, letters, money, &c., sent by the post, may be laid as the property of the Postmaster-General. (n) (q) Reg. V. Cain,» 1 C. & Mars. 309. (n) See this action, post, in the chapter relathig to the post office. * Eng. Com. Law Reps. xli. 172. 106 OF LARCENY. — INDICTMENT. [bOOK IV. SECT. IV. Of the Indictment, Trial, and Punishment. Indict- It is not intended to enter particularly upon the form of an indict- ™®''** ment for larceny, concerning which ample information is given in those works which treat expressly upon the subject of criminal pleading.(o) . It may be briefly observed that the prisoner must be charged with the offence in the technical form, " feloniously did steal, take, and carry away;" or, as it is said to be most proper, when cattle are the subject- matter of the larceny, '' feloniously did steal, take, and lead away. "(7?) And though it is not now necessary that the value of the goods should be stated in order that it may appear whether the offence be grand or petit larceny, yet some value should in general be stated, as if the pro- perty be of no value it is not a subject in respect of which larceny can *107 be committed. And it has *been abundantly shown that the property must be laid in some person who has in legal consideration a sufficient ownership for that pui'pose.(5') Description With respect to the proper description of the goods stolen, difficulties of the ^jji sometimes occur. The general rule is given, that they should be described with such a certainty as will enable the jury to decide, whe- ther the chattel proved to have been stolen is the very same with that upon which the indictment is founded, and show judicially to the court that it could have been the subject matter of the offence charged, and enable the defendant to plead his acquittal or conviction to a subsequent indictment relating to the same chattel. (r) And it is quite necessary that it should appear, on the face of the indictment, that the thing taken is such whereof larceny may be committed : so that, as we have seen, where the indictment was for stealing a pheasant, which prmd facie is not a subject of larceny, it was holden to be necessary to state that it was either dead, tame, or confined. (s) Namo'of The goods may be described as the goods of a person by the name the owner, ■^^l^ic}! such persou has assumed, though it be not his right name. The prisoner was indicted for stealing in the dwelling-house of Mary John- son certain goods, her property : and it appeared in evidence that her real name was Davis, but that she had passed by the name of Johnson, without any purpose of fraud, for five years. Upon the point being saved, the judges, (seven being present,) were clear that the time she had been known by the name of Johnson warranted her being so called in the indictment. (;)'{' (0) Stark. Crim. Plead. 192, et seq. 449, et seq. 3 Chit. Crim. L. 944, etseq. Cro. Circ. Comp. p. 38, et seq. (p) 2 Hale, 184. 2 East, P. C. c. 16, s. 159, p. 118. Starkie Crim. Plead. 78, 451. 3 Chit. Crim. L. 950. In Stark. Crim. Plead. 18, note (m), the learned author says, " It has been said that for stealing a horse it should be cepii ct abduxit, for stealing a sheep cepit et ejfugavit ; but I find no decision which warrants these unprofitable distinctions." (^l Ante, p. 85, el seq. (r) Stark. Crim. Plead. 193. 1 Ch. C. Law, 235. Is) Ante, p. 84. {t) Rex V. Norton, East, T. 1823, MS. Baylej, J., and Russ. & Ry. 510. See vol. 1, p. 555. I {On an indictment for stealing the goods of A. and B., evidence that some of the goods belonged to A., and some to B., in which they had no joint interest, will not support the charge. 4 McCord, IG, State v. Ryan.j [An indictment for larceny, charging that the goods stolen, were the property of A. is not sustained by proof that they belonged to A. and B. as CHAP. IX. § IV.] DESCRIPTION OF PROPERTY. 107 The same certainty is required in an indictment for stealing goods as Certainty in trespass for goods, and rather more certainty, for what will be a dc- JlJ^^^yll^J feet of certainty in a declaration will be much more defective in an in- dictment. (?/) Where several things arc stolen, it is necessary to state the number; therefore, it is not sufficient to i^:\y, fcluitice. furaius est avcs or columhas out of a dovecote, or young hawks out of the nest, without expressing the number.(r) And where the number is required to be stated, it must be stated with certainty. It is not, therefore, suf- ficient to say that the prisoner stole twenty sheep and lambs or twenty, sheep and wethers, because it docs not appear how many of one sort and how many of another. (»') The property itself must be accurately described; it is not therefore sufficient to say that the prisoner stole the goods and chattels of B., without showing what goods and chattels in certain, as one horse, one ox, &c.(x) So an indictment charging the stealing of "one hundred articles of household furniture" would be bad.(//) But an indictment charging the things stolen to be nine printed books would be good.(.';) So in an indictment for stealing a handkerchief, it is not necessary to describe it particularly, as a hand- kerchief of any specific make or materials, as that it is of silk, linen, or any other particular quality. ((«)■{" *lf a chattel has obtained a particular name of its own, it ought to be described by that name, and it would be wrongly described as so A chattel many pounds weight of the metal of which it is made ; but whilst j"fg,.iijpd metal is in the progress of manufacture, it may be described as so by its pro- many pounds weight of metal. Upon an indictment for stealing P'^'^ '^"'"®- twenty-five pounds weight of tin, it appeared that the tin consisted of two pieces, which a witness called "lumps of tin," but afterwards ad- mitted that they were called in the trade " ingots ;" but added that the term was applied as well to pieces of tin, as to the mould in which they were cast, and was applied to the shape. The tin had been cast into these pieces for the purpose of being again melted up for use, in the manufacture of tin ; and in the middle of each was an indentation for the purpose of breaking them in two when wanted to be melted up again. It was objected that the tin ought to have been described as two ingots, for wherever an article has obtained a name in the trade, it must be described by it. Coleridge, J., ''It seems to me that the de- scription is sufficient to answer all the purposes which are required by law. First, it is the subject of larceny equally whether it be an ingot or so many pounds weight of tin. Secondly, as to the facility of plead- ing autrefois anjuit, the prisoner stands in the same situation, whether (u) 2 Hale, 18.3. (i-) 2 Hale, 182. (w) 2 Hale, 183. (r) 2 Ilalc, 182. (1/j Rex V. Forsyth, Russ. & Ry. 274. (z) I'er Lord Klleuborough and Bayley, J., in Rex v. Johnson, 3 M. k S. 540. (a) I'cr Lc IJIaiic, J., Ibid. partners, and that they were at the time of the larceny in A.'s possession. Ilot/ff v. The ^tale, 3 Bliu'ktbrd, 32(3. In an indictment for larceny of corn belonging to A. and B., tenants and C. landlord, being part of a crop raised on shares and undivided, the corn should be described as t!ie property of A. B. & 0. and not merely as the property' of A. and B. T/ic Stale v. Frame, 4 Ibirrington, 5(39. In an indictment for stealing the property of A. a minor daughter of B. iUid living with him, tiie property sliould be described as the proi)erty of A. and not as the )>roperty of B.: the jiroperty being in the possession of A. and for her exclusive use. The Slali' V. Kock, 4 Harrington, 570.] ■f [Particulars descriptive of tiie jiroperty stated, inserted in an indictment for larceny must be strictly proved, even througli such as need not have been inserted. 7'hc Stale r. Jackson, 30 Maine, 29.] 108 OF LARCENY INDICTMENT. [BOOK IV. it be one or the other, because there must be some parol evidence in all cases to show what it was that he was tried for before, and it would be as easy to prove one as the other. The last question is, whether it is described with sufficient certainty, in order that the jury may be satis- fied that it is the thing described. If this had been some article, that, in ordinary parlance, had been called by a particular name of its own, it would have been a wrong description to have called it by the name of the material of which it was composed; as, if a piece of cloth were called so many pounds of wool, because it has ceased to be wool, and nobody could understand that you were speaking of cloth. It would be wrong to say so many ounces of gold, if a man stole so many sovereigns; you would there mislead by calling it gold. If it were a rod of iron, it would be sufficient to call it so many pounds of iron."(6)t Description A Set of new handkerchiefs in a piece may be described as so many of goods as handkerchiefs, though they are not separated one from another, if the known in P'^tteru designates each, and they are described in the trade as so many the trade handkerchiefs. Upon an indictment against the prisoner for stealing six handkerchiefs, it appeared that the handkerchiefs were new and in cue piece, but that the pattern designated each, there being a light coloured line between each ; and it also appeared that the article was known in the trade as a piece of silk handkerchiefs, and that it was the custom to charge such an article as so many handkerchiefs. The *109 point being saved, the *judges held that the property was rightly de- scribed as six handkerchiefs, and that the conviction was right. (c) Description It is also laid down as a rule that, when the subject-matter is defined of matters j^y ^ statute, the descriptive words contained in the act should be also defined by "^ , . , . ,. ' . , , , , , . . a statute, used in the indictment; and that where the act uses several descriptive terms, one of which, being general, includes the more specific term, an indictment would be bad which used the more general instead of the more special description. (fZ) And an instance is given where an indict- ment under the statutes 14 Geo. 2, c. 6, and 15 Geo. 2, c. 34, for steal- ing a coio, was holden not to be sustained by the fact that the defendant stole a /ie{/er; on the ground that as those statutes mentioned both heifer and cow, they must be considered as having used one term in contra-distinction to the other in describing the several animals they were intended to protect, (^e) Where an article is described in a statute (h) Keg. V. Mansfield, 1 C. & M. 140. Rex v. Stott, 2 East, P. C. c. 16, s. 144, p. 152, TSS, was cited in support of the objection. There the indictment was for receiving stolen iron, described as so many " pieces of iron called strokes," so many " pieces of iron," and so many " pieces of iron called horse-shoes ;" and the only question seems to have been whether the 29 Geo. 2, c. 30, related to metals in their raw state, as contradistinguished from wrought goods, and no opinion was given ; the counsel for the prisoner wavingthe further prosecution of a writ of error upon a doubt intimated by the court of B. R., whether any other judgment could be passed than that of transportation, directed by the 29 Geo. 3, c. 30. r* s o (c) Rex V. Nibbs, and Yearns, Trin. T. 1824, MS. Bayley, J., and R. & M. C. C. R. 25. \d) Stark. Grim. Plead. 193. (e) Cook's case, 1 Leach, 105. I [When a person was indicted for stealing a " bull tongue," and it appeared that he had stolen a peculiarly shaped plough-share called by that name, it was held to be a sufficient specification of the thing stolen. The State v. Clarke, 8 Iredell, 226. Turpentine, which has flowed down trees into boxes made to catch it, and is in a state to be dipped out, is a subject of larceny ; but where one was indicted for stealing two barrels of turpentine, and it appeared that he had dipped turpentine out of those boxes at ditferent times, until he had taken nearly two barrels, it was held, that the evidence did not support the indictment. The State V. Moore, 11 Iredell, TO.] CHAP. IX. § IV.] DESCRIPTION OF PROPERTY. * 109 by a particular name, it is enough to dcsLiibc it by that name in an indictment for larceny. (/) The Urst count charged the prisoner with stealing four warrants and orders for the payment of money (to wit) for .5/. each, and of the value of 5/. each. The second, four warrants and orders for the payment and of the value of 5/. each, commonly called post-office money orders; and the third, four valuable securities, that is to say, four warrants and orders, commonly called post-oflice money orders. The documents iu question were iu the following terms : — ii Post-office, Shrcxcshunj, Scptcmhcr IS, 1841. "Credit the person named in my letter of advice the sum of five pounds and debit the same to this office ;" and purported to be signed by the post-master at Shrewsbury, and addressed "To the post-office, London ;" and under it was a receipt, which the person receiving the money from the post-office was to sign. It was clearly proved that the prisoner had stolen the papers. The first objection was, that this was not an order for the payment of money; but, upon a case reserved, the judges were unanimously of opinion, that it was an order for the pay- ment of money. The next objection was, that it was an order by the postmaster, but was not drawn on any one. But the judges were of opinion that the designation or address of this order was sufficient au- thority to the persons who carried on business at the post-office iu Lon- don. It was next objected, that if the instrument was a money-order it required a stamp. The judges thought it unnecessary to decide thi.s point; but this being a usage of the post-office, sanctioned by the 3 & 4 Vict. c. 90, the judges were of opinion that this was a good money- order, notwithstanding the want of a stamp. The next objection was, that the indictment was uncertain, as the second and third counts were for stealing four warrants and orders (not saying how many orders) for the payment of the sum of 5^. each. But the judges were of opinion that the instrument was both a warrant and order, and, therefore, the counts of the indictment were not uncertain. And la.^tly, that there was no proper proof that this was a regular post-office order, as there vvd?, not sufficient proof that the order was signed by the postmaster; but the judges were of opinion that it was not necessary it should be in the handwriting of the postmaster himself; it was enough that it was in the handwriting of the postmaster, or some person by him au- thorized to sign.(^.) AVhere a prisoner was indicted for stealing, inter (ilia, two shifts, and the only article identified by the prosecutrix was what she called a shirt. It had been made for a little girl six years of age, and the pro- secutrix stated that she called such things shirts while girls were so young. Tindal^ C. J., said, " It must be shown that the article is ge- nerally known by the name laid in the indictment, and here the prose- cutrix says she could call it a shirt. The prisoner, therefore, must be acquitted. "(^y) Where a chattel is described by a name, such description imports the whole of that chattel, and if it appear that at the time it was stolen it was in pieces, or only part of it stolen, it is a fatal variance. Thus an indictment charging the stealing of a "brass furnace" is not sujiported ( /•) Rex I'. Johnson, 3 M. & S. 540. (f) Reg. v. Gilchrist,' 1 C. & Mars. 224. (g) Keg. V. Edward Fox, Halop. Sum. Ass. 1842, MS. C. S. G. » Eng. Com. Law Reps. xli. 126. 109 * OF LARCENY. — INDICTMENT. [BOOK IV. by evidence of stealing the pieces of brass into which the furnace had been broken up.(.9') So where an indictment charged the prisoner with stealing a "spade," and it appeared that he only stole the bit or flat iron part of the spade, the handle being off at the time the iron was stolen, it was held a fatal variance. (A) Where articles of different kinds are mixed together, as oats, beans, and chaff, the indictment should describe it as a " certain mixture consisting of one bushel of oats, &c." The prisoner was indicted for stealing " one bushel of oats, one bushel of chaff, and one bushel of beans, of the goods and chattels of A. B., then and there found ;" and the proof was, that these articles, at the time of the felonious taking, were mixed together; Bay ley, J., held that the articles ought to have been described as mixed, thus, " a certain mixture consisting of one bushel, &c.;" and he directed an acquittal on this count, (i) Description An indictment for stealing 10/. in moneys numbered, is not sufficient ; of money. gQjjjg ^f ^j^g pieces of which that money consisted should be specified. Upon an indictment for breaking and entering a dwelling-house, and stealing therein 10/. in moneys numbered, and a pair of stockings, the prisoner was found guilty of stealing the 10/. only ; and upon the point being reserved, a majority of the judges held the description to be in- sufficient, and the judgment was arrested. (,/) Description It is said to have been formerly the practice, upon all indictments for of written gj-galing; notes or other written securities, to set out the notes or other securities. o i i i i i ^IIQ securities at full length ;(7i-) but it has been long settled that *they may be described in a general manner, and need not be set out verhatiin.(l^ But still the indictment must follow some of the descriptions of property as given in the statute; so that where a prisoner was charged with steal- ing "a certain note commonly called a bank-note," of the value, &c,, and convicted, an objection which was taken to this description of the note was referred to the judges, who all held the indictment ill laid : as, in describing the property stolen to be a " note commonly called a hanh-note,^' it did not follow any of the descriptions of property in the statute, and that the addition " commonly called a bank-note" did not If described aid such original wrong description. (?32') But if the indictment describe w 1- of ^^® instrument in the words of the statute creating the offence, it is suf- the statute, ficient. The prisoner was indicted for stealing a note of the Bank of It IS good. England out of a letter, which note was described as "' a bank-note" • in every count, and it was objected that the description was insufficient, and the preceding case was relied upon ; Taunton, J., " There, the only substantial averment was, that it was 'a certain note;' that was the only description. It might have been a note of invitation. The words ^ bank-note' followed the words ' commonly called," that is like ' to wit,' which will not remedy an imperfect previous averment. It is sufficient to describe the offence in the words of the statute. If this had been a {g) Rex V. Hallow.ay,=' 1 C. & P. 12Y, Hallock, H.^post, p. 112. [h) Rex V. Stiles, Gloucester Sum. Ass. 1833, Gurney, B., MS. C. S. G. (i) Rex V. Kettle, 3 Chitt. Cr. L. 947, a. ( ;•) Rex V. Fry, East. T. 1822, MS. Bayley, J., and Russ. & Ry. 482. (k) 3 M. & S. 541. \l) 2 East, P. C. c. 16, s. 159, p. 111. Milne's case, 2 East, P. 0. c. 16, s. 37, p. 602. Johnson's case, 2 Leach, 1103, note (a). Stark. Grim. Plead. 454, note (k). (m) Craven's case. Lancaster Sum. Ass. 1801. Mich. T. 1801. 2 East, P. C. c. 16, s. 37, p. 601, 602. Russ. & Ry. 14. * Eng. Com. Law Reps. xi. 341. CHAP. IX. § IV.] DESCRIPTION OF BANK NOTES, ETC. 110 banker's promissory note, it must have been averred to be for the pay- ment of money; but I do not think that it is necessary in this case."(n) An indictment for stealing a promissory note is good which describes it as " one promissory note for the payment of live guineas. "(<>) The necessary description of a bank-note underwent considerable dis- Ji.hnson'a cussion in a late case of an indictment upon the Embczzlinf Act, 39 '•'i'^ Geo. 3, c. 85, (now repealed.) The indictment charged the prisoner to wit, nino with embezzling "divers, to wit, nine bank-notes for the payment of ';^"'*-"°'*^^' divers sums of money, amounting in the whole to a certain sum of ,,",y,„'ent money, to wit, the sum of 9/. of lawful money of Great Britain, and of "'''nvcM the value of 9/. of like lawful money; and, upon error to reverse the J'l'ioney^ judgment, it was objected that none of the cases had determined that amouuiing such an indictment containing no description of any particular note".',"}'', whatever was sufficient : but the court held that this was a sufficient certain sum description. Lord Ellenborough, C. J., said, that he considered that ""^ '".""'^y' after the statute had made bank-notes the subject of larceny, they might sm„ of 9/. be described in the same manner as other things which have an intrinsic "f lawful value, that is, by any description applicable to them as a chattel ; that ™f'th?valuo to describe them as bank-notes for the payment of money seemed to be of 9'. of a larger description than the statute strictly required ; and that the in- ^''^'° lawful dictment in question had set forth number, value, and species, (bank- held to'bc note being the species, the value 9/., and the number nine,) *and thereby * ^^^^'f °' complied with the strict and technical rule of law. Le Blanc, J., in . jT delivering his judgment, said, " Where a specific thing is made the sub- of bank- jcct of larceny, it is only necessary to describe it as such specific thing, note?, in it being a species of thing that is the subject of larceny. For instance, u"enron " it is not necessary, in charging a larceny of sheep, to describe it cither the cmbez- as a wether, ewe, or lamb, yet it cannot bo doubted, if such an argu- sg"?^^*^ 3 mcnt could prevail, that it would be of advantage to the prisoner that c. So. it should be described more particularly, because if it were, and the prosecutor, in such case, should fail to prove it to be of that particular description, the prisoner would thereupon be entitled to an acquittal. So also it may be said of bank-notes; it is not necessary to describe a bank-note particularly, as a bank-note for the payment of 11. , 61., or 20^., because for whatsoever sum it may be payable, it is still a bank- note. In like manner, in an indictment for stealing a handkerchief, it is not necessary to describe it as a handkerchief of any specific make or materials, as that it is of silk, linen, or any other particular quality. The argument upon this part of the case has arisen from the practice that has prevailed of describing the particular sum for which the note is payable, and that the money secured thereby is unsatisfied. But the answer to such an argument is this, that whether it be payable for one sum or for another, it is equally a bank-note, and a bank-note is the Kubjecl of larceny. Therefore, this is not a good objection, that the bank-note is not sufficiently set out. No further description is neces- sary than is required for other chattels, which are the subject of lar- ceny ; and under the general name of bank-note, the particular species, (;») Rox V. Newman, (Jlonccster Spr. Aiss. 18.^2, MS. C. S. Or. Tiic indictnienf was on the .'.2 (ieo. 3, c. 143, s. 2, the word.s of whicli are " any bank-note, bank-post-liill," &c. In Rex V. Jobn.=!on, infra, the jiiil{,'es seemed clearly of opiniou that the words " for the pajTncut of divers sums of money," were unnecessary. C. S. G. (o) Milne's case, 2 East, P. C. c. 16, s. 37, p. G02. Ill OF LARCENY. — INDICTMENT. [BOOK IV. if the sura for which the note is payable can be said to constitute a spe- cies, may be proved."(») Bank-post- It was holden that where the thing stolen was described as " a bank- ^*'^* postbill/' and was not set out, the court could not take judicial notice that it was a promissory note, or that it was such an instrument as un- der the 2 Geo. 2, c. 25, might be the subject of larceny, though it were described as made for the payment of money. (o) Bank- It appears to have been determined, that notes, bills, &c., within the sh**'m**' t ^ ^^^' ' ^' ^^' ^^^ repealed, should be laid to be the property of A. bode- B., and ought not to be described as cliatteh ; but it was also holden, scribed as ^\y^^ upon an indictment which laid them to be '< the property and chat- tels of S. S.," the word chattels might be rejected as surplusage. (j^) We have seen that re-issuable notes, which are stolen on their way from the bank in London, at which they have been paid, to the bankers in the country, to be re-issued, may be described as so many pieces of paper stamped with stamps. ((7) And that such re-issuable notes, if they cannot properly be described as " valuable securities," may be well laid as goods and chattels. (r) And that the halves of country bank-notes may also be described as goods and chattels. (.s) An indictment is good *112 which charges the stealing of a certain valuable *security (to wit) a cheque of the value specified, without stating the drawees to be bank- ers. An indictment charged the prisoner with stealing '.iis . be taken by demurrer, and it is too late to take them after a plea of not'^"'"'''^ ''.^' guilty, though before verdict. The case for the prosecution, on an in- o'l must'L dictment for housebreaking and stealing money therein against the form f"'^*'" "" of the statute, being closed, it was submitted that the indictment ought *^"^""'''- to have concluded contra fonnam stututorum ; that the prisoner was in fact proceeded against under two statutes, the 7 & 8 Geo. 4, c. 29, s. 12, and the 3 & 4 Wm. 4, c. 44, s. 2. For the prosecution it was urged (r) Rex V. Chalmcri», R. k M. C. C. R. .^.''i2. 5 0. & P. .331. (/) Reg. I'. Smith, 2 M. k Rob. 109, tried March 13, 1838. ly) Reg. V. Pringlc, 2 M. k Roh. 270, Erskinc, J. Ih) Reg. V. Pearson, R. & M. C. C. R. 313. (t) Reg. V. Radcliffc, 2 Moo. C. C. R. G8. 2 Lew. 57. 115 OF LARCENY. — INDICTMENT. [book IV. that the defect was cured by sec. 20, and that the objection ought to have been raised by demurrer, and it was said that Parke, B., had at a former assize ruled that no advantage could be taken of any defect cured by the 20th and 21st sections, except by demurrer, j^lderson, B., <' I am clearly of that opinion, and am glad to find it confirmed by the au- thority of my brother Parke. The object of the legislature, as it is stated in the preamble, was to discourage ' technical niceties, which in- terrupt the punishment of offenders.' Here this objection is indeed taken before verdict, but still too late, for it should have been taken by demurrer. "(_;') The 7 Geo. 4, c. 64, s. 21, enacts " that no judgmetit after verdict upon any indictment or information for any felony or misdemeanor shall be stayed or reversed for want of a similiter, nor by reason that the ■^ud^'ment ^^^^ proccss has been awarded to a wrong officer upon an insuflBcient after ver- suggestion, nor for any misnomer or misdescription of the officer return- ing such process, or of any of the jurors, nor because any person has served upon the jury who has not been returned as a juror by the sheriff or other officer ; and that where the offence charged has been created by any statute, or subjected to a greater degree of punishment, or excluded from the benefit of clergy by any statute, the indictment or information shall, after verdict, be held ^sufficient to warrant the punishment pre- scribed by the statute, if it describe the offence in the words of the sta- tute." It will not now be an objection to an indictment, that the matters alleged or the persons described in it, do not correspond in number or What shall not be suf- ficient to stay or reverse diet. 116 7&S Geo, 4, c. 28, s, 14. Rule for the in- gender with the descriptions in the statute upon which it is framed. ^LToTall "^^^ 7 &^ Greo. 4, c. 28, s. 14, enacts " that wherever this or any other criminal Statute relating to any offence, whether punishable upon indictment or statutes. summary conviction, in describing or referring to the offence or the subject-matter on or with respect to which it shall be committed, or the offender, or the party affected, or intended to be affected by the offence, hath used or shall use words importing the singular number or the mas- culine gender only, yet the statute shall be understood to include several matters as well as one matter, and several persons as well as one person, and females as well as males, and bodies corporate as well as individuals, unless it be otherwise specially provided, or there be something in the subject or context repugnant to such construction ; and wherever any forfeiture or penalty is payable to a party aggrieved, it shall be payable to a body corporate in every case where such body shall be the party aggrieved." Larceny, like every other offence, must regularly be tried in the same county or jurisdiction in which it was committed : but it should be tried in the notcd, with respect to larceny, that the offence is considered as committed county ^^ every county or jurisdiction into which the thief carries the goods; But this for the legal possession of them still remains in the true owner, and Trial. Larceny must be (y) Reg. V. Law, 2 M. & Rob. 197. Alderson, B., is reported to have added, "Even if it had been taken then, I should have recommended the grand jury to add the letter s to the word statute. See 2 Hawk. P. C. c. 25, s. 98, where it is said to be the common practice at this day while the grand jury who found the bill is before the court to amend it by their consent in a matter of form, as the name or addition of a party. See also, Kel. 37. " A party cannot after plea take any objections to any matter on the record which is aided by verdict under the 7 Geo. 4, c. 64, s. 21." Reg. v. Ellis,* 1 C. & Mars. 565, Patteson, J. » Eng. Com. Law Reps. xli. 307. CHAP. IX. § IV.] TRIAL. — COUNTY. 116 every moment's continuance of the trespass and felony amounts to a offence is new caption and asportation.(./)t _ Ttommt Therefore, if a man steal goods in the county of A. and carry them tod in every into the county of B., he may be indicted for the larceny in the county''"""!^ |"'" of B. But if a compound larceny be committed in one county, and the thief car- offender carry the property into another, though he may be convicted in"^^ ^ho the latter county of simple larceny, he cannot be there convicted of the^ compound larceny. Thus, where the prisoner robbed the mail of a letter, either in Wiltshire or Berkshire, and brought it into Middlesex, and was indicted capitally in Middlesex on the statutes 5 Geo. 3, c. 25, s. 7, and 7 Geo. 3, c. 40, the judges, upon a case reserved, held that he could not be convicted capitally out of the county in which the letter was taken from the mail.(/>-) So robbery can only be tried in the county whero committed; the felony travels. (A The larceny maj^, however, in some respects be considered as a new larceny, and as not necessarily including all the qualities of the original larceny : therefore, if the thing stolen ia altered in character in the first county, so as to be no longer what it was when stolen, an indictment in the second county must describe it accord- ing to its altered, and not according to its original state. An indictment was preferred in Hertfordshire for stealing four live tame turkeys ; and it appeared that they were stolen alive in Cambridgeshire, killed there, and carried dead into Hertfordshire ; and upon the point being saved, the judges held that, though the carrying into Hertfordshire constituted a larceny in that county, yet it was a *new larceny there, and a larceny *117 of dead turkeys, not of live ones.(m) So where the prisoner was indicted for stealing " a brass furnace" in Herefordshire, and it was proved that he stole the furnace in Radnorshire, broke it up there, and carried the pieces into Herefordshire, it was held that the prisoner must be acquitted, as he never had the " brass furnace," but merely certain pieces of brass, in Herefordshire. (?i) But a considerable space of time intervening between the theft in one county and the carrying the stolen property into another county will not prevent the case from being considered as a larceny in the county into which the property is carried. Upon the 4th of November the prisoner stole a note in Yorkshire, and upon the 4th of March he carried it into Durham : and he was indicted for steal- ing it in Durham : and, upon a case reserved, the judges were clear that (j) 3 Inst. \U. 1 Hale, BOT, .508. 2 llalc, 163. 1 Hawk. P. C. c. 33, s. 52. 4 Bla. Com. 304. 2 East, P. C. c. 16, s. 1.50, p. 771. (k) Rex V. Thompson, Hil. T. 1795, MS. Bayley, J. (/) 1 Hale, 536. (m) Rex V. Edwards and Walker, Hil. T. 1823, JIS. BaAiey, J. and Rnss. & Ry. 497, ante, p. 112. (n) Rex V. Halloway,* 1 C. & P. 127, Hullock, B. f [^Slate V. Douglass, 17 Maine, 193. The legal possession of goods stolen continues in the owner, and every moment's continuance of the trespass and felony amounts in legal consideration to a new caption and asportation. And, tlierefore, it was held that if goods were stolen, before the revived statutes took effect, and were retained in the possession of the thief until after they came into operation, he might be indicted and punished under those statues. State v. Soinervillr, 21 Maine, 14. The rule that where property is stolen in one county and is carried by the thief into another, he may be convicted of larceny in the latter county applies as well to property which is made the suliject of larceny by statute, as to property which is the subject of larceny by tlie common law. Commonweaflh v. Band, 7 .Metcalf, 475. To constitute larceny, it is not important the intention of the prisoner should be to convert the property to his own uses in the county where it is taken. The State v. Ware, 10 AI>»- bama, 814.] » Eng. Com. Law Reps. xi. 341. Vol. il— 9 117 OF LARCENY. [BOOK IV. the interval between the first taking and the carrying it into Durham, did not prevent it from being a larceny in Durham, and that the con- viction in that county was right, (o) The four The following case was ruled upon the principle that the larceny in stole goods *^6 county into which a thief carries the goods may be in some respects in Glouces- of a different nature from the larceny in the county in which he first tershire, ^qq|, iy^q^tx Four prisoners were indicted for stealing a variety of arti- thomin clcs of hardware in the county of Worcester. It appeared upon the fhatcoun- evidence that the articles in question were made up into a package at tv and then ±10 carried Birmingham, and dispatched by the canal from that place to Worces- thcir shares ter, to be forwarded down the river Severn to Bristol. The package costershire arrived safely at "Worcester, where it was transferred from the canal in their " boat to a barge called the Blucher, in which it was to be conveyed a ba'<''s'-\nd g''6at part of the way down the Severn ; namely, to a place called it was ruled Brimspill, in the county of Gloucester. The prisoners were bargemen that this Qjj );)Qarcl the Blucher; and during the voyage from Worcester to Brim- v.'as not a 7 o ./ c joint lar- spill, the coursc of which was nearly equal in the two counties of Wor- esny in cester and Gloucester, being about thirty miles in each, the articles in shire, but question were stolen from the package ; but they were not missed till separate _ the barge arrived at Brimspill. At that place the cargo was unloaded, that county. ^"^^ P^* °^ board another vessel, to be carried onwards to Bristol; and (/')• the Blucher barge returned to Worcester navigated by the prisoners. Suspicion having fallen upon them, they were apprehended in the county of Worcester, when their respective bags were immediately searched, and a portion of the stolen articles was found in each of them. It was then proved, that upon their apprehension, and upon being required to account for the possession of the articles, they stated that the package was broken by accident while on board the Blucher, on the voyage from Worcester to Brimspill, when the articles fell out, and they took them and made a division of them immediately. They did not state at what part of the voyage this transaction took place; but it appeared probable that it took place in the county of Gloucester, and there was no evidence to rebut that probability. Upon these facts the learned judge ruled that the indictment could not be supported against the prisoners as for a joint larceny in the county of Worcester, and put ■118 *the counsel for the prosecution to his election: who accordingly pro- ceeded against one only of the prisoners, who was convicted and sen- tenced to transportation r^-) If two per- But if two persons be guilty of a felonious taking in one county, and steal ^in'ono *^'^® ^^ them alone carry the property into another county, yet if the sounty. and other afterwards concur with him in the second county in securing the concur m possession, both may be iointly indicted in the second county. County securing ^-^s•,.^■, ,. . -, the goods find Donovan laid a plan to get some coats from the prosecutrix under in another pretence of buying them. The prosecutrix had them in Surrey at a they may public house ; the prisoners got her to leave them with Donovan whilst (0) Rex V. Parkin, Mich. T. 1824, MS. Bayley, J., and R. & M. C. C. R. 45. (j9^ This case would now fall within the 7 Geo. 4, c. 64, s. 13, post, s. 120. [k) Rex V. Barnett, Smith, Burton, and Purser, cor. Holroyd, J., Worcester Sum. Ass. 1818. Separate indictments were afterwards preferred against the three other prisoners, (as the grand jury had not been discharged,) to which they pleaded guilty. The learned counsel (Sir Wm. Owen,) who was retained to defend them, inclined much to put in a plea of aut- refois acquit on their behalf; and only permitted them to plead guilty, on the prosecutor un- dertaking to recommend them strongly to mercy. And it should seem that such a plea might have succeeded. See Rex v. Dann, R. & M. C. C. R. 424. C. S. G. CHAP. IX. § IV.] TRIAL. — COUXTY. 118 she went with County, that he might get the money to pay for them; j^e indicte.l in her absence Donovan carried them into Middlesex, and County after- ^quj, "^ wards joined him there, and concurred in securing them. The indict- ment was hiid against both in Middlesex ; and upon a case reserved, the judges were unanimous that as County was present aiding and abetting in Surrey at the original larceny, his concurrence afterwards in Middlesex, though after an interval, might be connected with the original taking, and brought down as larceny to the subsequent posses- sion in Middlesex. They therefore held the conviction right. (/)f So if two jointly commit a larceny in one county, and one of them carry the stolen goods into another county, the other still accompany- ing him, without their ever being separated, they are both indictable in either county ; the possession of one being the possession of both in each of the counties, as long as they continue in company. («i) The prisoner must have the stolen property under his control in the The pro- second county to render him liable to be indicted there, and it is DotH^^'j^^l"""" enough that he has the mere possession of it, he being in the custody prisoner's of the constable who apprehended him. On an indictment for stealing free coutr.i two geldings in Kent, the only evidence to support the charge of steal- condcoun- ing in Kent was, that when the prisoner was apprehended at Croydon, ty- in Surrey, he said he had been at Dorking to fetch them, and that they belonged to his brother, who lived at Bromley. The police officer oflPercd to go to Bromley. They took the horses, and went as far as Beckenham church, when the prisoner said he had left a parcel at the Black Horse in some place in Kent. The police officer accordingly went thither with him, each riding one of the horses ; when they got there the officer gave the horses to the ostler. The prisoner made no inquiry for the parcel, but made his escape, and afterwards was again apprehended in Surrey. And, on a case reserved, the judges were unanimously of opinion that there was no evidence to be left to the jury of stealing in Kent.(H) *It should be further observed that there are some exceptions to the *119 rule that a larceny is committed in every county or iurisdiction into^-"^^,*^!'*"^','' to tiio rult? which the thief carries the goods. For if the original taking be such t^at a lar- whereof the common law cannot take cognizance, as if the goods be ceny is stolen at sea, the thief cannot be indicted for the larceny in any county j ° ^^.^ ' into which he may carry them.^v) county into So if a larceny be committed out of the kingdom, though within the ^j^j^f ^^.j^^.'^ king's dominions, bringing the stolen goods into this kingdom will not ries tho make it larceny here. The prisoner stole a quantity of wearing apparel S'^^'^*- at St Ilelier's in Jersey, and they were shortly afterwards found in his possession in the county of Dorset ; upon a case reserved it was held that this was not larceny in Dorsetshire, and that the case did not fall within the 7 & 8 Geo. 4, c. 29, s. 70, as Jersey could not be con- sidered as part of the united kingdom. (oo) So if a larceny be com- mitted in France, the party cannot be tried in England, though he bring the goods here.(p) (/) Rex V. County, East. T. 1816, MS. Baylcy, J. (m) Rex V. M'Donagh, Carr. Supp. 2d edit. 23. (ii) Rex V. Simmonds, R. & M. C. C. R. 408. (o) 3 Inst. 11.5. 1 Hawk. P. C. c. 33, s. 52. {oo) Rex V. Rrowes, R. & M. C. C. R. 349. {p) Reg. v. Madge,* 9 C. & P. 29, Parke. B. t [Commonwealth v. Dewitt, 10 Mass. Rep. 154, S. P.} * Eng. Com. Law Reps, xxxiii. 23. 119 OF LARCENY. [book IV. Exceptions as to Scot- land and Ireland, removed by.7 & 8 Geo. 4, c. 29, s. 70. Stealing fixtures. ^120 Offences committed at sea. A similar exception prevailed formerly where the original taking was in Scotland or Ireland. And it appears to have been holden that a thief who had stolen goods in Scotland could not be indicted in the county of Cumberland, where he was taken with the goods. (g^) But the 7 & 8 Geo. 4, c. 29, s. 76, enacts, "that if any person having stolen or otherwise feloniously taken any chattel, money, valuable security, or other property whatsoever in any one part of the united kingdom, shall afterwards have the same property in his possession in any other part of the united kingdom, he may be dealt with, indicted, tried, and pun- ished for larceny or theft in that part of the united kingdom where he shall have such property, in the same manner as if he had actually stolen or taken it in that part ; and if any person in any one part of the united kingdom shall receive or have any chattel, money, valuable security, or other property whatsoever which shall have been stolen or otherwise feloniously taken in any other part of the united kingdom, such person knowing the said property to have been stolen or otherwise feloniously taken, he may be dealt with, indicted, tried, and punished for such offence in that part of the united kingdom where he shall so receive or have the said property, in the same manner as if it had been originally stolen or taken in that part."(r)-|- We have seen that the stealing of things affixed to the freehold was not larceny at common law,(s) and although it is made felony by the 7 & 8 Geo. 4, c. 29, s. 44, still the prisoner cannot be indicted in any other county except the one in which the fixtures are first taken. The prisoner was indicted at common law for stealing lead in Middlesex ; the lead had been stolen from a church at Iver, in Buckinghamshire, and the prisoner was found in possession of it at Southall, in Middlesex, a place within the jurisdiction of the Central Criminal Court, which Iver was not ; and it was held *that the prisoner could not be convicted within the jurisdiction of the Central Criminal Court. (ss) By the 7 & 8 Geo. 4, c. 29, s. 78, " where any felony or misde- meanor punishable under this act shall be committed within the juris- (q) Rex V. Anderson and others, Carlisle Sum. Ass. 1763, and before the judges, Nov. 1763, 2 East, P. C. c. 16, s. 156, p. 772. (r) The statutes 45 Geo. 3, c. 92, and 54 Geo. 3, c. 186, make provision for the more easy apprehending and bringing to trial offenders escaping from one part of the United Kingdom to the other, and from one county to another. (s) Ante, p. 62. (ss) Rex V. Miller,' 7 C. & P. 665, Park, J. A. J., Alderson, B. and Patteson, J. The 44th section does not make the stealing fixtures a larceny, it only provides that the " offender shall be guilty of felony." and punished " in the same manner as in the case of simple larceny." C. S. G. ■{- jit is held in New York and North Carolina, that stealing property in another State and bringing it there, is not there punishable as larceny. 2 Johns. 477, People v. Gardner ; ibid. 679, People v. Schenck. 1 Hayw. 100, State v. Brown. Secus, in Massachusetts and Connecticut, 1 Mass. Rep. 116, Cmmonwcalth ?>. Cullins. 1 Root, 69, Rex v. Peas. 3 Conn. Rep. 185, State v. Ellis. And a person receiving in Massachusetts goods stolen in another state, knowing them to be stolen, may be there punished as an accessory after the fact. 2 Mass. Rep. 14, Common- wealth V. Andrews. See 5 Mason, 256, United States v. Davis.} [One who feloniously takes property in the province of Canada and brings it into Ver- mont, is guilty of larceny, and may be there tried and convicted of the offence. State v. Bartlett, 11 Vermont, 650. A person having possession in Ohio of property which he had stolen in another state, may be there convicted of larceny. Hamilton v. The State, 11 Ohio, 435.] * Eng. Com. Law Reps, xxxii. 679. CHAP. IX. § IV.] TRIAL. — COUNTY. 120 diction of the Admiralty of England, the same shall be dealt with, in- Offences quired of, tried, and determined in the same manner as any other fe-^^^^^jj^j^g lony or misdemeanor committed within that jurisdiction." of countioa, Some general provisions have also been made with respect to offences °'' "'^f' committed near the boundaries of counties, and during a journey or voy- jouniey ace through several counties. through The 7 Geo. 4, c. 64, s. 12, for the more effectual prosecution of counties, offences committed near the boundaries of counties, or partly in one county and partly in another, enacts, "that where any felony or mis-j,. 6i\ 'l2. demeanor shall be committed on the boundary or boundaries of two or Offences more counties, or within the distance of five hundred yards of any such on"{,™und^ boundary or boundaries, or shall be begun in one county and completed arios of in another, every such felony or misdemeanor may be dealt with, in-<=°"°''®8 quired of, tried, determined, and punished in any of the said counties, tried in in the same manner as if it had been actually and wholly committed either therein.'XO ^ ^ '''^''- We have seen that the provisions of this section do not apply to pro- secution in limited jurisdictions, but only to county boundaries, and to county prosecutions, (m) The 7 Greo. 4, c. 64, s. 12, where an offence has been committed within 500 yards of the boundary of a county, gives the prosecutor an option of laying and trying the offence in either county, but does not enable him to lay it in one county and try it in another. Where, there- fore, an indictment found at the Quarter Sessions, for the borough of Stamford, laid an offence in the parish of M., in the county of N., and being removed by certiorari a venire was awarded into L., and the de- fendant found guilty at the assizes for that county, judgment was ar- rested. («m) It may be observed that an important alteration has recently been made in the boundaries of some counties by the Boundary Act, 2 & 3 Wm. 4, c. 74, and the Municipal Keform Act, 5 & 6 Wm. 4, c. 70 ; so that if a felony be now committed in that part of a county of a town, which has been added to it by the Boundary Act and the Municipal Reform Act, it is triable within the county of the town. The prisoner was indicted for wounding with intent to do grievous bodily harm ; the offence was committed at a place which was added to the borough of Haverfordwest, which is a county of itself, by the Boundary Act, and declared by the Municipal Reform Act to be part of the borough, the place in question not having been within the borough before the pass- ing of those acts ; and it was held that the prisoner might be tried by a jury of the borough. («) By the 7 Geo. 4, c. 64, s. 13, " where any felony or misdemeanor Offences shall be committed on any person, or on or in respect of any property commutod in or upon any coach, wagon, cart, or other carriage whatever employed journey or in any journey, or shall be committed on any person, or on or in re- ^^y^so spcct of any property on board any vessel whatever employed on any tried in voyage or journey upon any navigable river, canal, or inland naviga- *^"y county (0 Sec Rex V. Ruck, MS., C. S. G., aiUe, vol. 1, p. 827. (h) Rex V. Welsh, R. & M. C. C. R. iVo, ante, vol. 1, p. 550. \im) Reg. V. Mitchell, 2 G. & Dav. 274. \v) Rex V. Filler,* 7 C. & P. 337, Coleridge, J. In Rex v. the Justices of Gloucestershire,'' 4 Ad. & E. G89, it was held tliat the effect of these statutes was to transfer the parts en- tirely and for all purposes out of the one county into the other. » Eng. Com. Law Reps. xxii. 532. •> lb. xxxi. 169. 120 OF LARCENY. [bOOK IV. through tion, such felony or misdemeanor may be dealt with, inquired of, tried, (■oacV Ac. determined, and punished in any county, through any part whereof )>assod. such coach, wagon, cart, carriage, *or vessel shall have passed, in the *1.21 course of the journey or voyage during which such felony or misde- meanor shall have been committed, in the same manner as if it had been actually committed in such county ; and in all cases where the side, centre, or other part of any highway, or the side, bank, centre, or other part of any such river, canal, or navigation shall constitute the boundary of any two counties, such felony or misdemeanor may be dealt with, inquired of, tried, determined and punished in either of the said counties, through or adjoining to, or by the boundary of any part whereof such coach, wagon, cart, carriage, or vessel shall have passed, in the course of the journey or voyage during which such felony or misdemeanor shall have been committed, in the same manner, as if it had been actually committed in such county." !,arocny on To bring a case within this section, in order to maintain an indict- :» eoach . . . ment in a county other than that in which the offence was committed, it must be proved that the offence was committed "in or upon the coach," &c. The prisoner had been held to bail to appear at the Cum- berland assizes, to answer the charge of larceny committed on a journey. He had acted as guard of a coach from Penrith in the county of Cum- berland to Kendal in Westmoreland, and was entrusted with a banker's parcel, containing bank-notes and two sovereigns : on changing horses at some distance from Penrith, he carried the parcel to a privy, and while there took out of it the sovereigns : and Parke, B., held that as the act of stealing was not " in or upon the coach," the case was not within the statute, and the felony having been committed in Westmoreland, the indictment ought to be preferred in that county. Tw) •fustices The 2 & 3 Vict. c. 82, s. 1, reciting, that " the administration of luiYpHso- j'lstice is hindered by the distance of divers detached parts of counties Iters from in England and Wales from the body of the counties to which they 1)3,1*8 of severally belong, and wherein the justices of the peace having jurisdic- oounties tion in such detached parts for the most part do dwell," enacts, that dudedin' ^^*°^ ^^^ ^^^^ °^ August, 1839, ''it shall be lawful for any justice or their coun- justices of the peace acting for any county to act as a justice or justices '.^'u"*^-- of the peace in all things whatsoever concerning or in any wise relating iiers may ^0 any detached part of any other county, which is surrounded in whole be tried in or in part by the county for which such justice or justices acts or act; roundin'' ^^^ *^^*' ^^^ ^^^^ ^^ ^^"^^^ justice or justices of the peace, and of any con- oouiay. stable or other officer in obedience thereto, shall be as good, and all offenders in such detached part may be committed for trial, tried, con- victed and sentenced, and judgment and execution may be had upon them, in like manner as if such detached parts were to all intents and purposes part of the county for which such justice or justices acts or act; and all constables or other officers of such detached parts are here- by required to obey the warrants, orders, and acts of such justice or justices, and to perform their several duties in respect thereof, under the pains and penalties to which any constable or other officer may be liable for a neglect of duty." By sec. 3, " the word ' county' shall be taken to mean and include («•) Sharjj's case, 2 Lew. 233. CHAP. IX. § IV.] TRIAL. — COUNTY. 121 county, riding, division, and parts of a county Laving a separate com- mission of the peace. "(^) *It has been held that the grand jury of the county, which wholly *122 surrounds a detached part of another county, may find an indictment Tho grand for an offence committed in such detached part, and that the prisoner g^^round-^ may be tried by a jury of such surrounding county. The prisoner was ing county indicted in Dorsetshire for larceny in a parish of Somersetshire, en- ^^ffo "an* tirely detached from it, and surrounded in whole by Dorsetshire. lie offence had been committed by a Dorsetshire magistrate to the gaol of that P'^IV^'"?^ , . ,. , • , 1 rr ^ 1 • l • 1 *° tho Othef county. The mdictment laid the onence to have been committed in the countj. parish of Ilolwell, the same being a detached part of the county of Som- erset, surrounded in whole by the county of Dorset; the venue in the margin was Dorset. The indictment did not state that the prisoner was in Dorsetshire, or that he was committed by a Dorsetshire magistrate. Fitzherbert objected, first, that this should have appeared on the face of the indictment; and, secondly, that the grand jury of Dorsetshire could not find the bill, as there were no words in the statute giving any power to find the bill ; and he referred to the 60 Greo. 3, c. 4, the 7 Geo. 4, c. 04, s. 12, and the 4 & 5 Wm. 4, c. 36, to show that the word ^« try" in a statute did not include the finding of a bill by the jury; but Rolfe, B., overruled the objection, saying, that it would strike the act out of the statute-book. (^) Some evidence is requisite as to the loss of the property, and where Proof of the it appears that it was last in the possession of a person, either that per- djattoL son should be called, or some evidence given to show the loss, for other- wise it may be that it has been delivered by that person to the prison- er, or to some one else from whom the prisoner may have received it, or, indeed, it may have been lost. Upon au indictment for stealing a horse, the prosecutor proved that he had put the horse to be agisted with a person who resided twelve miles distant from his own residence, and, in consequence of hearing of its loss from that person, he went to the field where the horse had been put, and discovered that it was gone. Gurney, B., '' I think you should prove the loss more distinctly, because non constat, but the prisoners might have obtained possession of the horse honestly. I do not see how we can get at that without the per- son with whom it was put to agist, or his servant. It is perfectly con- sistent with what has been proved that the horse might have got out of this person's possession in some other way, and not by felony. "(;i) So where, ou a similar indictment, it appeared that a servant was sent to turn out a horse in a field, and was sent to fetch- it up again the next (x) Sec. 2 provides for payment of expenses of prosecutions by the county to which the detached part belongs. («/) Reg. V. Loader, Fx relatione Mr. Fitzherbet. S. C. Talf. Dick. Q. S. 188, where a gucere is added to the decision by the learned editor ; but with all respect to his opinion, it should seem that the decision is perfectly correct, as the object of the act clearly was to render prisoners trial)le in the surrounding county, and to prevent expense, and the elTect of a contrary decision would be that they never could be so tried in such county, except where an indictment had been found by a grand jury of the county, to which the detaclied part belonged ; which would greatly add both to tlie inconvenience and expense, which it was in- tended to avoid. It is diflicult also to see how it can be correctly said that a person is " tried in such manner as if such detached parts were to all intents and jjurposes part of the county for which such justice acts," unless he is tried on an indictnieut found by the grand jury of such county ; for that is the mode in which he would be tried if the part were to all intents part of that county. C. S. G. (z) Rex V. Yend,» 6 C. & P. 176, and MSS., C. S. G. * Eng. Com. Law Reps. xxv. 34L 122 OF LARCENY. [BOOK IV. morning, when it was missed, but the servant was not called as a wit- *123 ness, and the prisoner was found in possession of the horse the *next day ; it was held, that there was not sufficient proof given of the loss ; and that the servant ought to have been called to prove what he did with the horse, as for anything that appeared to the contrary, the ser- vant might have delivered the horse to the prisoner. (a) Bvidonce. With regard to the evidence in cases of larceny, it generally consists, where tho ('^^^^ss the prisoner is detected in the fact,) of proof of the felony hav- stolon pro- ing been committed, and of the goods stolen having been found shortly perty IS afterwards in the possession of the prisoner; and upon such proof the the posses- general rule will attach, that wherever the property of one man, which siou of a j^as been taken from him without his knowledge or consent, is found is incu'm- upon another, it is incumbent on that other to prove how he came by bent on jt- otherwise the presumption is, that he obtained it feloniously. (i) This to%-ove ^^1^> founded on the necessity of the case, which cannot admit offences how he of this kind to go unpunished, wherever positive and direct evidence is camo y i . ^.^^^^^Qg ^f ^-j^q gyj||. ^f ^j^g party, will probably seldom lead to a wrong conclusion if due attention be paid to the particular circumstances, by which such presumption may be weakened, or entirely destroyed. (c) Amongst the most prominent of these will be the length of time which elapsed between the loss of the property and the finding of it in the pos- session of the prisoner : the probability of the prisoner's having been, at the time of the theft, near the place from which the property was taken ; and more especially the conduct of the prisoner from first to last, with respect to the property found in his possession, and the charge brought against him of having obtained it by stealing. It has been held that the possession of stolen property sixteen months, (f?) or three months(i') after it was lost, is not such a recent pos- session as to put the prisoner upon showing how he came by it, unless there be evidence of something more than the mere fact of possession at such a distance of time after the loss.f Where a prisoner was indicted for stealing two sacks, which had been (a) Rex V. Fellows, MSS., C. S. G. Stafford Sum. Ass. 1830, Bosanquet, J. (h) 2 East, P. C. c. 16, s. 93, p. G56, Phil, on Evid. 168, T edit. (c) That it will sometimes, like every other rule of human institution, fail to guide rightly must be admitted. Lord Hale mentions a case, which he says was tried laefore a very learned and Avary judge, where a man was condemned and executed for horse-stealing, upon proof of his having been apprehended with the horse shortly after it was stolen ; and afterwards it came out that the real thief being closely pursued, had overtaken the poor man upon the road, and asked him to walk the horse for him while he turned aside on a necessary occasion, upon which the thief made his escape, and the man was apprehended with the horse. 2 Hale, 289. And it is probable that, upon this rule, receivers of stolen goods are frequently <;onvicted of stealing them. (d) Eex V. ,a 2 C. & P. 459, Bayley, J. It is not stated what the goods were. (f) Rex V. Adams,'' 3 C. & P. 600, Parke, J. The goods found in the possession of the prisoner were an axe, a saw, and a mattock. f l_State T. Merrick, 19 Maine, 398. The possession of stolen goods is a presumption of guilt, and this presumption is not rebutted by the lapse of two months between the theft and finding. Sla/c v. Bennett, 3 Brevard, 514. The finding of a thing stolen in the possession of the accused, affords evidence to some extent that he took it ; which evidence, ordinarily is stronger or weaker in proportion to the length of time intervening between the stealing and the finding. The State v. Williams, 9 Iredell, 140. The fact that a portion of the chattels were found upon the premises of the accused eighteen months after they were stolen, unaccompanied by other suspicious circumstances, is not prima facie evidence that the accused was guilty of larceny. Warren v. The State, 1 Iowa Rep. 106.] * Eng. Com.. Law Reps. xxii. 216. ^ lb. xiv. 474. CHAP. IX. § IV.] EVIDENCE. 123 found about twenty days after they were missed, Coleridge, J., told the jury, "If I was now to lose my watch, and in a few minutes it was to be found on the person of one of you, it would afford the strongest ground for presuming that you had stolen it ; but if a month hence it were to be found in your possession, the presumption would be greatly weakened, because stolen property usually passes through many hands."(/) As some articles pass from hand to hand much more readily than others, the nature of the articles ought to be taken into *consideration *124 by the jury in determining whether the possession is so recent as to lead to the conclusion that the prisoner stole them. Upon an indict- ment for stealing two ends of woollen cloth, which were about twenty yards each in length ; it appeared that the cloth was missed on the 23d of January, when it was in an unfinished state, and that part of it was left on the 21st of March by the prisoner at the house of one Porter, and that on the 30th of the same month, the prisoner sent the residue to be shorn. It was submitted that the length of time since the loss was so great that no presumption of guilt was raised against the prisoner by the possession of it. Pattcson, J., " I think the length of time is to be considered with reference to the nature of the articles which are stolen. If they are such as pass from hand to hand readily, two months would be a long time, but here that is not so : it is a question to the jury."(^) Cases frequently occur where property is found in a house in which several persons reside, any of whom might have stolen it: upon such cases Mr. Starkie observes, " it is also to be carefully observed, that the mere finding of stolen goods in the house of the prisoner where there are inmates of the house capable of stealing the property, is insufficient evi- dence to prove a possession by the prisoner." (f/)"|* Where several chattels are lost, and there is no evidence to show that ^'^^'"®, they were stolen at different times, and they may have been all stolen at tides arc one time, the prisoner may be proved to have had some of them in his ^'^^ ^^^ possession at one time and some at another, although it be probable that ^.^^jj ^.j.".,, they were stolen at different times. On an indictment for stealing a taken at quantity of robes, silk, and other articles, it appeared that the prisoner time'^^u was the servant of the prosecutors, and nothing was missed till just dence of before his apprehension, nor had he been seen to take anything out of ^^jj^^J^^j^^^ ^^ the house, but after he was apprehended, he admitted having taken a given. (f) Cockin's case, 2 Lew. 235. \ff) Rex V. Partridge,* 7 C. & P. .551. It may frequently be very important to consider the number of articles stolen, and the number found on the prisoner, as it should seem that in proportion as the number found is large is the probability increased that he was the thief. C. S. G. {g) 2 Stark. Erid. 614, note ((7), 3d edit. It must be observed, however that the learned judges have generally considered such evidence as sufficient to call upon the occupier of the house to account for the possession ; on tlie ground that the house being in his occupa- tion the property was found in his possession ; and there seems good reason for this course, because, as master of the house lie must be presumed to have the control over it, and to permit nothing to come into it without his sanction ; at the same time it is for the jury un- der all the circumstances, to say whether the master stole the property, or any of the other inmates of the house. C. S. 6. f [On a trial for larceny in a hotel, the commonwealth may prove the presence of the prisoner in the hotel on the night when the larceny was committed, and his acts and con- duct there, and the circumstances attending his arrest, as a part of the whole transaction ; though these acts amount to a felony attempted on another person in another part of the building. Burrs case, 4 Grattan, 534.] * Eng. Com. Law Reps, xxxii. 627. 124 OF LARCENY. [book IV. 125 great variety of things, some of whicli he had sent to one Smith ; the prosecutor swore that he had no doubt that the articles were taken at different times, and it appeared probable that that was the case from the great variety of the articles, and from its appearing that Smith had been in the habit of pledging several articles, at different times, during a period of between four and five months, Gaselee, J., held that he could not compel the prosecutors to elect what set of goods they relied upon j and that though it was probable the goods were taken at different times, it was not impossible that they had been all taken at one time ; and, on a case reserved, the judges were unanimously of opinion that the learned judge was right in not requiring an *election to be made. (A) So where seventy sheep were put on Thornly Common on the 18th of June, and were not missed till November, and the prisoner was in possession of four of those sheep in October, and of nineteen others of them on the 23d of November, Bayley, J., allowed evidence of both to be given. (^) But where two horses were stolen from different persons at different times, but were taken at the same time bj' the prisoner into a different county, and it was submitted that the felonies were distinct, and the prosecutor should elect on which he would proceed ; Littledale, J., said, " If you could confine your evidence entirely to a single felony in this county, you need not elect ; but this you cannot do : for you must f)rove that the horses were originally stolen in another county. The possession of stolen property soon after a robbery is not itself a felony, though it raises a presumption that the possessor is the thief; it refers to the original taking with all its circumstances. I think, therefore, that you must, in this instance, make your election. 'V A Where all that can be proved concerning property found in the pos- session of a supposed thief is that it is of the same hind as that which has been lost, this will not in general be deemed sufiicient evidence of its having been feloniously obtained, and some proof of identity will be required. But where the fact is very recent, and the property consists of articles, the identity of which is not capable of strict proof, from the nature of them, the conclusion may be 'drawn that the property is the same, unless the prisoner can prove the contrary. (7^:) Thus, if a man be found coming out of another's barn, and upon his being searched corn be found upon him, of the same kind as that in the barn, the evi- dence of the guilt will be pregnant; and cases have frequently occurred where persons employed in carrying sugar and other articles from ships and wharfs have been convicted of larceny, upon evidence that they were detected with property of the same kind upon them, recent- ly upon coming from such places, although the identity of the pro- perty, as belonging to such and such persons, could no otherwise be proved. (7) Evidence that the property stolen is of some value will also be mate- rial, as if it be of no value, it is not a subject in respect of which lar- ceny can be committed. (??i) But property may be of value to the owner, though not of general value. Thus, where the indictment was for stealing pieces cf paper with available stamps thereon, and it ap- Iilentity of the property. Value of the property. (A) Rex V. Dunn, R. & M. C. C. R. 146, and see Rex .v Hunt, Hindmarch's Supp. to Dea- con's Cr. L. 1583. Rose. C. E. 217. (i) Rex V. Dewhirst, 2 Stark. Ev. 614, 3d edit. \j) Rex V. Smith, R. & M. N. P. R. 295. (k) 2 East, P. C. c. 16, s. 39, p. 657. (?) Id. ibid. (m) Phipoe's case, ante, p. 79. Com. Dig. Ind. G., 2 Stark. Crim. Plead. 450. CHAP. IX. § IV.] EVIDENCE. 125 pcared that the pieces of paper ■were re-issuablo notes of a country bank which had been paid, and were in transitu, for the purpose of being re-i.ssucd, it was decided that they were the valuable property of the country bankers, (though not promissory notes within 2 Geo. 2, c. 25) and subjects of larceny. («)f So a memorandum of a sum of money which a person owed the pro- secutor, has been held to be the subject of robbery. (o) ]Jut although *the chattel must be of some value, it need not be of the value of some *126 known coin, as of a farthing at least. Upon an indictment for receiv- •^'"°P^'"^y ing nine pieces of paper, value two shillings, it appeared that the papers bo of tho had been torn out of a book kept by a coalmeter; the book was a cer-^''^"° "^ tificate book, which the coalmeters received when they went on board kn™wn ships ; the certificates were those given to different merchants ; they coin, are not signed as they are in the book; there are blanks left for the name of the ship fi-om which the coals are delivered, the quantity, the barge, the number of it, the lightermanj and to whose account they are delivered, and the date of the delivery : it is signed by the meter. One only of these pieces of paper were traced to the prisoner. It was sub- mitted that it was not of any value so as to sustain an indictment ; and that it must be of the value of some coin known to the law. Parke, B., " There is no doubt it must be of some value, and it is of some value, but it is quite new to me that it must be of the value of some coined money, of a farthing at least." "It must be assigned of some value, you say of the value of some known coin, but I do not know any au- thority for that, I do not know that it could not be stated as of the value of a hundredth part of a farthing. Show me some case where the indictment has failed on the ground of the article being value- \css."{p) With respect to those larcenies which are aggravated by the amount The value of the property stolen, as in the case of stealin"; in a dwelling-house to °»"^t^° of . ^ ffoods sto- the value of 51. , it should ajipear that the property, the value of which len at tho is taken in computation, was all stolen at the same time. For though ^'^^'^ ^'°^<^- in former times, when the distinction between grand and petty larceny existed, it appears to have been the received opinion in the older books, that a man stealing at several times, several parcels of goods, each under the value of twelve pence, but amounting in the whole to more, from the same person, might have been convicted of grand larceny ;(r^) the severity of that rule became obsolete ; and it was afterwards settled that the value of the property stolen must not only be, in the whole, of such an amount as the law required to constitute grand larceny, but M Clarke's case, 2 Leach T03G. Ante, p. Y4. (o) Rex V. Bingley,* 5 C. & P. G02, Guruej-, B. (p) Rex V. iMorris,*" 9 C. & P. 349. It was afterwards shown that in fact the paper was of more than a farthinj^'s value, therefore the point did not arise, but tho very learned judge said, " I must be understood for one as not considering that it is necessary to show that the article must be of the value of some known coin. It must be of some value no doubt." ('/) See 1 Hale, 531, and the authorities there cited. f [In an indictment charging the larceny of promissory notes, omission to charge the value of the notes is a material defect. Wilson v. The S/ate,l Porter, 118. In order to render bonds, notes, &c., the subject of larceny, thc)^ must be at the time of taking legally valid, and subsisting securities for the payment of money or some specific article of value. Ibid. A verdict for larceny should fix the value of the property stolen. Fai/ v. The State, 1 Iowa Rep. 310.] * Eng. Com. Law Reps. xxiv. 474. *> lb. xxxiii. 148. 126 f'F LARCENY. [bOOK IV. that the stealing must be to that amount at one and the same particular time. For, in fact, where things are stolen at different times, there are different acts of stealing ; and no number of petit larcenies would amount to a grand larceny, nor any number of grand larcenies, where it depended on the value of the property stolen, to a capital offence. (r) But it seems that if the property of several persons lying together in one bundle or chest upon the same table, or even in the same house, be stolen together at one time, the value of the whole may be put to- gether, for such stealing is one entire felony, (s) And we have seen that where a servant steals several articles at different times, but car- ries them out of his master's house at the same time, he may be con- victed of stealing in a dwelling-house to the value of 5?., if all the arti- *127 cles amount *to that value, although he never took to that amount at any one time.(^) Goods not In a case where the prisoner was indicted upon the 12 Anne, c. 7, produced. /^^ repealed) for stealing in a dwelling-house to the amount of forty shillings, and the goods found were not proved to amount to forty shil- lings ; the court left it to the jury to consider, upon the facts of the case, whether the prisoner had not stolen the rest of the things which the prosecutor lost, as well as those which had been produced. (t<) Verdict. A prisoner indicted for larceny cannot be convicted merely of a tres- pass, for though larceny, as has been before stated, includes a trespass, yet if, upon an indictment, the taking appear not to be felonious, though amounting to a trespass, the defendant is entitled to a general acquittal, (y) The taking It should be observed, that although to some purpose the taking of °^ ^'^f^. divers articles at one and the same time may be considered as one entire article is a ii.pi-iiiiii separate felony,(?c) yet to other purposes the taking or each article has been held felony, ^q constitute a distinct felony. Thus, if two articles are stolen at the same time, and the prisoner is tried and acquitted or convicted of steal- ing one of them, he may be indicted afterwards, and convicted of steal- ing the other, and no plea of autrefois convict or autrefois acquit can be supported ; for " it hath happened that a man acquitted for stealing the horse hath yet been arraigned and convicted for stealing the saddle, though both were done at the same time."(cc) Where, however, the prisoner has been already convicted and sen- tenced for stealing one article, it is not usual to indict him again for stealing another at the same time, and if he be so indicted the court in its discretion may recommend the second indictment to be abandoned. The prisoner, who was undergoing his sentence for stealing one pig, was indicted for stealing another pig : both were stolen at the same time, and from the same person ; it was admitted by the counsel for the prisoner that the plea of autrefois convict could not be maintained, but the prisoner's case was submitted to the merciful consideration of the (r) 1 Hawk. P. C. c. 33, s. 50, 51. 2 East, P. C. c. 16, s. 136, p. 740. Petrie's case, 1 Leach, 294. Farley's case, cor. Ashhurst, J., Surrey Lent Ass. 1786. 2 Best. P. C. ibid. (s) 1 Hale, 531. 2 East, P. C. c. 16, s. 136, p. 740, 741. {t) Rex V. Jones,* 4 C. & P. 217, ante, vol. 1, p. 857. (m) Hamilton's case, 1 Leacb, 348, ante, vol. 1, p. 857. The jury found the prisoner guilty of stealing the value of forty shillings. (y) Staundf. 24 b. Kel. 29. Scofield's case, Cald. 401. 2 East, P. C. c. 15, s. 134, p. 737, and s. 159, p. 778. (w) Supra, note (s). [x) 2 Hale, 245. » Eng. Com. Law Reps. xix. 352. CHAP. IX. § IV.] PUNISHMENT. 127 court. Cresswell, J., " I remember a case before Baron Wood, where a prisoner was tried and acquitted of uttering a forged note, and after- wards indicted for uttering another forged note, which he had uttered at the same time as the former note, and he held that it might be done; but here the prisoner has been convicted, and is suffering the punishment for stealing the one pig, and therefore, I think it would be as well not to proceed with the present indictment." On which the counsel for the prosecution offered no evidence, and the prisoner was acquitted.(y)t *By the 7 & 8 Geo. 4, c. 28, s. 5, "where any person shall be in- i-^o dieted of treason or felony, the jury empannelled to try such person 'I'^^^^^^^l^'^ shall not be charged to inquire concerning his lands, tenements, orthopiiso- goods, nor whether he fled for such treason or felony." ^J^^'^ lands, For the punishment of simple larceny, the 7 & 8 Geo. 4, c. 29, s. 3, enacts, " that every person convicted of simple larceny, or of any felony Punishment hereby made punishable like simple larceny, shall, (except in the cases j^^^g^J,™.^ ° hereinafter otherwise provided for,) be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years ; and, if a male, to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment." By sec. 4, " where any person shall be convicted of any felony or Tho Court misdemeanor punishable under this act, for which imprisonment >ii''iy X^ces"^ be awarded, it shall be lawful for the court to sentence the offender to within this be imprisoned, or to be imprisoned and kept to hard labour, in the com- ^'^^ "^'Y*" mon gaol or house of correction, and also to direct that the offender shall or solitary be kept in solitary confinement,(?/?/) for the whole or any portion or co"''ne- portions of such imprisonment, or of such imprisonment with hard labour, as to the court in its discretion shall seem meet." By sec. 61, " in the case of every felony punishable under this act, Principals every principal in the second degree, and every accessory before the'^^j j^' fact, shall be punishable with death or otherwise, in the same manncrgreo, and as the principal in the first degree is by this act punishable ; and every accessories, accessory after the fact to any felony punishable under this act, except only a receiver of stolen property, shall, on conviction, be liable to be imprisoned for any term not exceeding two years j and every person (?/) Rex V. Brettell, Monmouth Spring Ass. 1842, MSS. S. C. 1. C. & Mars. 090 » C. S.G- Where a prisoner has been acquitted, perhaps a case might occcur where a subsequent in- dictment might not be considered as improperly preferred ; but where a prisoner has been convicted and received sentence, such a proceeding can hardly be considered otherwise than vindictive, inasmuch as the court always looks at all the circumstances of the case, and par- ticularly the amount of the property stolen, before fixing the sentence ; and if the prisoner were sentenced to any further punishment on the second indictment, he would in eifect be twice punished for the same offence. C. S. G. (.Vy) But now, by the 1 Vict. c. 90, s. 5, no offender " shall be kept in solitary confine- ment for any longer periods than one month at a time, or than three months within the space of one year." f [On the trial of an indictment for larceny, it is error to permit evidence to go to the jury for the purpose of proving that just before the defendant committed the act for which he is on trial, he committed another larceny. Burton v. The State, 18 Ohio, 221. On a trial for larceny in a hotel, it is competent for the commonwealth to prove the presence of the prisoner in the hotel, on the night when the larceny was committed, and his acts and conduct there, and the circumstances attending his arrest, as a part of the whole transaction, though these acts amounted to an attempt to commit a felony on another person in another part of the hotel. Burr v. The Commomvcalth, 4 Gratton, 534.] » Eng. Com. Law Reps. xli. 331. 128 OF LARCENY. [BOOK IV. Abettors ^vho shall aid, abet, counsel, or procure the commission of any misde- J!?o?.!!fr meaner punishable under this act shall be liable to be indicted and punished as a principal offender." Attainder The 7 & 8 Geo. 4, c. 28, s. 4, enacts, " that no plea setting forth any of another attainder shall be pleaded in bar of any indictment, unless the attainder pleadable, bc for the same offence as that charged in the indictment." By sec. 10, "wherever sentence shall be passed for felony on a per- unde^^sen- ^"^'^ already imprisoned under sentence for another crime, it shall be tcnce for lawful for the court to award imprisonment for the subsequent offence, another ^^ commence at the expiration of the imprisonment to which such per- convieted SOU shall have been previously sentenced ; and where such person shall of felony, -^^ already under sentence, either of imprisonment or of transportation, may pass the court, if empowered to pass sentence of transportation, may award a second g^^}^ sentence for the subsequent offence, to commence at the expiration SGIltGIlCG • 1 • to com- ' of the imprisonment or transportation to which such person shall have mence after jbccn previously sentenced, although the aggregate term of imprison- tion'^cTf^the' ^^^*' ^^ transportation respectively may exceed the term for which first. either of those punishments could be otherwise awarded." Punish- The 11th section of the same statute reciting that it was expedient {o mcnt for a provide for the more exemplary punishment of offenders who commit felo^ny"*^" felony after a previous conviction for felony, whether such ^conviction *-! 90 shall have taken place before or after the commencement of this act, enacts, " that if any person shall be convicted of any felony, not punish- able with death, committed after a previous conviction for felony, such person shall, on such subsequent conviction, be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceed- ing four years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such Form of imprisonment 3 (,i) and in an indictment for any such felony committed t'ora su'bse-^^''^^ a previous conviction for felony, it shall be sufficient to state that quont felo- the offender was, at a certain time and place, convicted of felony, with- ^:, out otherwise describing the previous felony; and a certificate contain- of first con- ing the substance and effect only (omitting the formal part) of the in- viction. dictment and conviction for the previous felony, purporting to be signed by the clerk of the court or other officer having the custody of the re- cords of the court where the offender was first convicted, or by the deputy of such clerk or officer, (for which certificate a fee of six shil- lings and eight-pence and no more shall be demanded or taken,) shall, upon proof of the identity of the person of the offender, be sufficient evidence of the first conviction, without proof of the signature or official character of the person appearing to have signed the same." 6 & 7 Wm. The 6 & 7 Wm. 4, c. Ill, reciting this provision of the 7 & 8 Greo. 4, 4, c. 111. c. 29, and that " since the passing of the said act the practice had been, conviction ^n the trial of any person for any subsequent felony to charge the not to be jury to inquire at the same time concerning such previous conviction, U*iry tin the ^^^ ^^^^ doubts may be entertained whether such practice is consistent finding for with a fair and impartial inquiry as regards the matter of such subse- tho subse- quent felony, and that it is expedient that such practice should be dis- ny. continued," enacts, that '< it shall not be lawful on the trial of any person for any such subsequent felony to charge the jury to inquire (3) See p. 2 as to hard labour and solitary confinement. CHAP. IX. § IV.] VERDICT. — INDICTMENT. 129 concerning such previous conviction, until thoy shall have inquired concerning such subsequent felony, and sh;dl have found such person guilty of the same ; and whenever in any indictment such previous conviction shall be stated, the reading of such statement to the jury as part of the indictment shall be deferred until after such finding as afore- said : Provided ncvGrthclcss, that if upon the trial of any person for any such subsequent felony as aforesaid, such person shall give evidence of his or her good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the indictment and conviction of such person for the previous felony before such verdict of guilty shall have been returned, and the jury shall inquire concerning such previ- ous conviction for felony at the some time that they inquire concerning the subsequent felony." (a) The practice since this statute has been to charge the jury first with the subsequent felony, and if they find the prisoner guilty of that felony, then to charge them with the question as to the prisoner being the same person that has been previously convicted. In order to prove that he is the same person that was before convicted, it is *not necessary to call *loO any witness that was present at the former trial ; it is sufficient to prove that the prisoner was the person who underwent the sentence mentioned in the certificate. In order to prove a previous conviction, a certificate was put in, stating that at the sessions for the borough of Newbury, held on the 31st October, 1 Vict., the prisoner had been convicted of stealing cotton prints, and sentenced to be imprisoned for four months, The governor of Heading gaol proved that the prisoner was in his cus- tody before those sessions ; that he sent him to Newbury at that time, and received him back with an order from the Newbury sessions, and that he remained in his custody for four months under that sentence; and this was held sufficient. (^aa) But where a certificate having been put in, a gaolor, who was called to prove an admission made by the prisoner, said, " I asked the prisoner, ' how many years ago was it that you were here before ?' He said, < it was a many years ago.' I then said, 'You were then convicted of felony,' and the prisoner said, 'Yes, I was.' " It was objected, first, that some one ought to have been called who was present when the prisoner was previously tried ; and secondly, that this admission was not sufficient, as it did not show of what felony the prisoner was convicted, but only that he had been convicted of a felony. Bosanquet, J., " I think an admission of the prisoner is sufficient : but I think this evidence is not sufficient ; it must be proved to be the same felony as that mentioned in the certi- ficate."(i) Whether a prisoner calls witnesses to his character, or cross-examines lf!ir"s"- the witnesses as to his character, he "gives evidence" of his character ner cross- cxamiDCfi (a) This statute has only half remedied the mischief, for as tlic prisoner is arraigned in open court, both as to the previous conviction and the sul)sequcnt felony, some of lln- jury in most instances hear the charge ; and in order to avoid this it has been the practice t..- take the arraignment during tiie absence of the jury, where that is practicable, but thorv are many cases where it cannot be done. C. S. G. (aa) Reg. v. Crofts,* 9 C. & P. 219. -Serf yj/OTf, whether this evidence showed that the prisoner was imprisoned for tbc same felony as that mentioned in the certificate ? It showed, indeed, that he was in gaol for some oflence, but it might be another felony or a misde- meanor. C. S. G. (6) Rex V. J. and T. Goodman, Stafford Sum. Ass. 1830, MSS. C. S. G. » Eng. Com. Law Reps, x-xxviii. 89. of stolen property. 130 OF LARCENY. [BOOK IV. to show within the meaning of the 6 and 7 Wm. 4, c. Ill, and the previous a'ffuoli conviction may be proved in the first instance. Where on an indict- charactor, ment charging a previous conviction, a question was asked on cross- tho previ- examination which might have been asked with a view to show that the OUS COnvlC- . Ill 11 -rii-n •i-i- tiou may prisoner had borne a good character; I'arke, h., said, "in his opinion, be proved, jf ^ prisoner's counsel cross-examined the witnesses for the prosecution, in order to show that the prisoner had borne a good character, it would be the duty of the court to direct that the evidence of the previous conviction should be given in the first instance ; but as he was in doubt whether the object of the prisoner's counsel was such in the pre- sent case, he had not thought it right to do so. "(c) An indictment for a subsequent felony need not conclude " against the form of the statute," as the charge of the former conviction is merely in the nature of a suggestion, in order to warrant the higher punishment.(f?) Restitution The 57th section of the 7 and 8 G-eo. 4, c. 29, for the purpose of encouraging the prosecution of offenders, enacts, " that if any person guilty of any such felony or misdemeanor as aforesaid, in stealing, tak- ing, obtaining, or converting, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, shall be in- 131 dieted for any such offence, by or on behalf of the owner of *the pro- perty, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his representative ; and the court, before whom any such person shall be so convicted, shall have power to award, from time to time, writs of restitution for the said property, or to order the restitution thereof in a summary manner. Except in Provided always, that if it shall appear, before any award or order made, that any valuable security shall have been honCi fide paid or discharged by some person or body corporate liable to the payment thereof; or, being a negotiable instrument, shall have been bond fide taken or re- ceived by transfer or delivery, by some person or body corporate for a just and valuable consideration, without any notice, or without any rea- sonable cause to suspect that the same had by any felony or misde- meanor been stolen, taken, obtained, or converted as aforesaid, in such case the court shall not award or order the restitution of such security." Where a prisoner was convicted of stealing a bill of exchange for 100?., and a considerable sum of money in specie, and the evidence tended to show that he must have purchased a horse with part of the proceeds of the bill, the court ordered the horse to be delivered to the prosecutor, (e) Where a prisoner was indicted for stealing a 10?. Bank of England note, it was held that an order could not be made to restore it after it had been paid and cancelled by the Bank.(/) fc) Reg. V. Gadbury,* 8 C. & P. 676. {d) Reg. v. Blea,^ 8 C. & P. 735. (e) Rex V. Powell, •= 7 C. & P. 640. The Common Serjeant, after consulting Gurney, B., and Williams, J. (/) Eex V. Stanton,-! 7 C. & P. 431, Vaughan and Williams, Js. » Eng. Com. Law Reps, xxxiv. 580. ^ lb. xxxiv. 610. '^ lb. xxxii. 669. ^ lb. xxxii. 572. certain cases. CHAP. X.] OP STEALING FROM THE PERSON. *132 ♦CHAPTER THE TENTH. OP STEALING FROM THE PERSON. With respect to such stealing from the person as does not amount to i Vici. o. robbery, the 1 Vict. c. 87, s. 5, enacts, "that whosoever shall rob any ^'^' ^' ^' person, or shall steal any property from the person of another, shall be liable, at the discretion of the court, to be transported beyond the seas for any terra not exceeding fifteen years nor less than ten years, or to be imprisoned for any term not exceeding three years. (a) By sec. 12, the word property shall throughout this act be deemed to denote everything included under the words " chattel, money, or valu- able security" used in the 7 & 8 Geo. 4, c. 29^ s. 5,(6] and 9 Geo. 4, c. 55, (Irisli Act). By sec. 9, principals in the second degree and accessories before the fact are punished in the same manner as principals in the first degree, and accessories after the foct (except receivers) arc liable to be impri- soned for, not exceeding two years; and by sec. 10 offenders may be im- prisoned, or imprisoned and kept to hard labour, in the common gaol or house of correction, and kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year.(c) By the repealed statute 48 Geo. 2, c. 129, s. 2, it was enacted, " that Repealed any person who should feloniously steal, take, and carry away any ^^**- *^ money, goods, or chattels, from the person of any other, whether 129' s. '2! privily without his knowledge or not, but without such force, or putting in fear, as is sufficient to constitute the crime of robbery, should be liable to the punishment therein mentioned." In a case upon this Held, tlmi repealed statute it was holdeu that the indictment need not nefrativc the ^^'^ 'I'l'ct- n p -11 T , ^ meut upon force or tear necessary to constitute robbery, and that, though it should the reiK-al- appear upon the evidence that there was such force or fear, the puni.sh- *^^ statute, ment imposed by that statute might be inflicted. The prisoner was in- c. 129, ' "' dieted for stealing from the person : the indictment did not state that °^<^^ P"*^ there was no such force or fear as is necessary to constitute robbery • fu,^o 0^/ and it appeared in evidence that such force and fear existed. Lord fear, and EUcnborough, before whom the prisoner was tried, saved the point g^^i^^^^, whether he could go beyond the 'common law punishment; and, upon of force or conference, all the judges held *that he might; and that, where force ^'''^'" """^^ "** ' iinswcr to or fear were not charged in the indictment, the existence of force or the ehargo. fear would not exempt the party from the statutable punishment; and *133 u3 all that the indictment charged was proved, the proving what made the ofl'cncc greater would not entitle the prisoner to a smaller punish- ment.(f?) A more recent case upon the same repealed statute was to the same effect. The indictment was for stealing from the person, and it did not negative force or fear; and, upon the evidence, the facts amounted to a clear case of highway robbery. The learned judge, before whom tlie prisoner was tried, doubted whether ho ought not to direct an acquittal, (a) This offence was once capital by the 8 Eliz. c. 4, ss. 1 & 2. (i) Ante, p. 73. (c) See these sections, ante, vol. 1, p. 808. (d) Rex V. Pcarce, East. T. 1810, MS. Bayley, J., and Russ. & Ky. 17-1. VOL. II. — 10 133 OF STEALING HORSES, COV/S, SHEEP, ETC. [bOOK IV. aud detain the prisoner to be indicted for the robbery ; but he let the trial proceed, aud on conviction, sentenced the prisoner to transporta- tion for life : but he made a case upon the questions, first, Whether the indictment should not have negatived force and fear; secondly. Whether the existence of force and fear was not an answer to the charge as laid ; and, thirdly, Whether the statutable punishment could be inflicted : And the judges were unanimous that the indictment need not, and ought not to negative force or fear, that the existence of such force or fear was no answer to the charge, and that the statutable punishment was rightly inflicted.(e) The thing To constitute a stealing from the person, the thing taken must be be'com^^^ completely removed from the person. In a case where, upon the evi- jiietoly re- dence of the prosecutor, it appeared that the pocket-book was drawn moved from £j,Qjjj his waistcoat-pocket an inch above the top of his pocket, but was returned immediately again into the pocket, probably by the quick mo- tion of the prosecutor's arm upon the hand and arm of the thief, with whom and his accomplices the prosecutor had a severe struggle before he was secured, it was held by a majority of the judges, that the pri- soner was not rightly convicted of stealing from the person, because from first to last the book remained about the person of the prosecutor. But the judges all agreed that the simple larceny was complete, and sentence of transportation for life having been passed, a pardon, on con- dition of transportation for seven years, was recommended. (/) We have seen that where a man went to bed with a prostitute, leaving his watch in his hat, on the table, and the woman stole it while he was asleep, it was held not to be stealing from the person, but stealing in the dwelling- house. ((/) By the 1 Vict. c. 87, s. 18, any felony, punishable under that act, committed within the jurisdiction of the Admiralty of England or Ire- land, " shall be dealt with, inquired of, tried, and determined in the same manner as any other felony committed within that jurisdiction." (A) *134 ^CHAPTER THE ELEVENTH. OF STEALING HORSES, COWS, SHEEP, ETC. We have already seen that larceny may be committed of such do- mestic creatures as are fit for food; (a) and it remains only to notice in this place the statutable provision, which, for the better protection of some of the more valuable domestic animals, makes persons, found guilty of stealing them, liable to transportation. 7 <& 8 Geo. The 7 & 8 Geo. 4, c. 29, s. 25, enacts, '' that if any person shall steal 4, c. 29, s. c^Y^J horse, mare, gelding, colt, or filly, or any bull, cow, ox, heifer, or calf, or any ram, ewe, sheep, or lamb, or shall wilfully kill any of such cattle with intent to steal the carcase, or skin, or any part of the cattle (c) Rex V. Robinson, cor. Wood, B., and considered by the judges, Hil. T. 1817, MS. Bay- ley, J., and Russ. & Ry. 321. (/) Rex V. Thompson, Hil. T. 1825, Ry. & Mood. C. C. 78. (g) Rex V. Hamilton,* 8 C. & P. 49, ante, vol. 1, p. 855, and see other cases there. (h) The act does not extend to Scotland, sec. 14. (a) Ante, p. 82. » Eng. Com. Law Reps, xxxiv. 288. CHAP. Xr.] OF STEALING HORSES, COWS, SHEEP, ETC. 134 SO killed, every such offender shall be guilty of felony, and being con- victed thereof shall suffer death as a felon." The 2 & 3 Wm. 4, c. 62, recited this section, and repealed the pun- ishment of death, and enacted, that " every person convicted of any of the felonies hereinbefore specified, or of counselling, aiding, or abetting the commission thereof, shall be transported beyond the seas for life." The 3 & 4 Wm. 4, c. 44, s. 3, enacted, that all persons punishable by transportation for life under the 2 & 3 Wm. 4, c. G2, " shall be lia- ble, previously to their being transported, to be imprisoned with or without hard labour, in the common gaol or house of correction, or to be confined in the penitentiary, for any term not exceeding four years nor less than one year." The 1 Vict. c. 90, s. 1, recites the 2 & 3 Wm. 4, c. 62, and 3 & 4 i Vict. c. Wm. 4, c. 44, and repeals so much of them as relates to the punish- p*^' ^^* ^' ment of persons convicted of offences, for which they are liable, under punish- thc said act of 2 & 3 Wm. 4, c. 62, to be transported for life, and "^'^°*~ enacts, that after the commencement of this act, (1st of October, 1837) '< every person convicted of such offences, shall be liable to be trans- ported beyond the seas for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years." By sec. 3, " in awarding the punishment of imprisonment for any offence punishable under this act, it shall be lawful for the court to direct such imprisonment to be with or without hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisoament, or of such imprisonment with hard *labour, not exceed- *135 ing one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet." The 7 & 8 Geo. 4, c. 29, s. 61, enacts, that " every accessory after the fact to any ioioxij punisliahle tender this act, (except only a receiver of stolen property) shall, on conviction, be liable to be imprisoned for any term not exceeding two years. "(i) The various points upon the definition of larceny, which have been Points re- considered in the chapter treating generally of that offence, (^) relate as j^^'^S *<> well to the stealing of horses as of other property ; and we may re- stealing (6) As cattle stealing is no longer punishable under the 1 & 8 Geo. 4, c. 29, it may be doubted wliellier accessories after the fact are punishable under section Gl. If the}' are not. it should seem that they are punishable under the following provisions as for a felony for which no punishment is specially i)rovided. By the 7 & 8 Geo. 4, c. 28, s. 8, " Every person convicted of any felony not punishalile with death, shall be punished in the manner d<'- scribed in the statute or statutes specially relating to such felony ; and that every person convicted of any felony for which no punislimcnt hath been, or hereafter may be specially provided, shall be deemed to be punishable under this act, and shall be liable, at the discre- tion of the court, to be transported beyond the seas for the term of seven years, or to be im- prisoned for any term not exceeding two years ; and, if a male, to be once, twice, or three times publicly or privately whipped (if the court shall so think fit), in addition to such im- prisonment." By sec. 9, " where any person shall be convicted of any ofl'ence punishable under this act, for which imprisonment may be awarded, it sliall be lawful for the court to sentence the offender to be imprisoned, or to be imprisoned and kejit to liard labour in the common gaol or house of correction, and also direct that the oftendcr shall be kept in soli- tary confinement for tlie whole or any portion or portions of such imprisonment, or of such imi)risonment with hard labour, as to the court in its discretion shall seem meet. But by the 1 Vict. c. 90, s. 5, " it shall not be lawful for any court to direct that any ofl'cnder shall be kepi in solitary confinement for any longer periods than one moach at a time, or than three months in the space of one year." C. S. G. (c) Ante, p. I, et seg. 135 OF STEALING nORSES, COWS, SHEEP, ETC. [BOOK IV. ."iriseas in member a case of considerable nicety, where, upon a finding by the jury of'^oihor ^^^^ ^^^ prisoners took some horses, merely with intent to ride, and property, afterwards to leave them, and not to return, or make any further use of them, it was holden that such taking amounted to a trespass only, and not to larceny. (cA liawlin's The doctrine that any the least removal of the thing feloniously case. The ^^ken, will constitute larceny, (c) applies to the stealing of sheep, though was indict- part of the animal only bo taken. The prisoner was indicted for steal- od for steal- jjjg gj^ lambs, without any count for killing with intent to steal the car- insT lambs, ^ ' . and the evi- case or any part thereof, the evidence was that the carcases of the (ience was lambs, without their skins, were found upon the premises where they ses were ^^^ been kept, and that the prisoner had sold the skins on the morning found in after the offense was committed, upon which the jury were directed to orthe^own*^- ^^^^ *'^^ prisoner guilty, on the ground that the lambs must have been or, and the removed from the fold. Uut a doubt having occurred whether, as the skms only ^4 Qeo. 2, c. 6, (now repealed,) specified feloniously driving away, and away: and feloniously killing with intent to steal the whole or any part of the car- npon this caso, as well as feloniously stealing in general, (although there must, was holden in such cases, be some removal of the thing,) it did not intend to make good. these different offences; the case was submitted to the consideration of the judges; who held the conviction right : as any removal of the thing feloniously taken, contitutes larceny. (/) Li:t this But this decision has been questioned, if not overruled, in the follow- has'been ^°o cdi?:Q, where it was held that upon a count for ^stealing a sheep it doubted, must be shown that the sheep was removed whilst it was alive, and that "^ L^^Q^*^^ upon a count for killing a sheep with intent to steal the whole of the ... ,. carcase, evidence of killing with intent to steal part of the carcase, is is nece's- Sufficient. The first count charged the prisoner with stealing three sary to sheep, and the second with killing the sheep with intent to steal the oharo-e of '""hole of the carcases. It appeared that the sheep were found killed stealing a and cut open, and the inside and entrails taken out, and the tallow and Ldict'ment° i'^side fat taken away, and the fat cut off the backs of two of them, and laying an also taken away, but the fat on the back of the third was left. The steaUhe carcases of the sheep were left, and were found lying in the gripe of the whole, is hedge, in the same field where the live sheep had been ; the entrals and supported anis which remained after the tallow and inside fat had been cut out to steal were also left, and were found in the adjoining field. There was evi- ^'^'^L'l^ ^'^'^ deuce to satisfy the jury that the prisoner had killed the sheep and stolen the fat ; but as the carcases of the sheep, and the entrails and guts, after cutting away the tallow and fat, were left, the learned judge though the second count, which was for killing the sheep with intent to steal the whole of the carcases, could not be supported, and that the intent ought to have been stated to steal part of the carcases ; inasmuch as the 14 Geo. 2, c. 2G, specifies both intents, i. c, stealing the whole of the carcases, or any part of the carcases ; and the cutting out the inside fat is one of the offences stated in the recital of the clause in the statute.(^) The count for stealing, the learned judge also, in the ab- (f) Rex V. Phillips and Stong, ante, p. 8. (e) Ante, p. 5. (/) Rawlen's case, Sarum Sum. Ass. 1800, and Mich. T. 1800. 2 East, P. C. c. 16, s. 48, p. eiT. [g) Vide the cases of Rex v. M'Dermot, Russ. & Rj. 356. Rex v. DiifEn, Russ. & Ry. .'.65, and Rex v. Horwell, R. & M. C. C. R. 405, that if a statue uses Avords in the alternative, so as to distinguish between them, the distinction must be attended to in the indictment. CHAP. XI.] or STEALING HORSES, COWS, SHEEP, ETC. 136 scnce of any case to the contrary, was disposed to think was not sup- ported ; for the before-mentioned statute having taken away clergy from such as drive away or steal sheep, and having, in the same clause, made it a capital offence to kill sheep with intent to steal the whole, or any part of the carcase, the driving away or stealing, mentioned in the statute, does not appear such a removal of the sheep as is made merely for the purpose of killing on the spot, but it must be such a removal as is made for the purpose of actually getting the sheep in a live state into a man's complete possession and dominion; for if it were otherwise, the clause in the act of parliament about killing would have been quite un- necessary ; and so would also the practice, which has generally pre- vailed, of inserting counts in indictments for killing with intent to steal the whole, or part of the carcase. In the cases in which a slight remo- val of the article has been held to amount to larceny, there has always been an intent to steal the article itself, but the thief has been prevented from getting the complete possession of, and dominion over it; and if it was not held larceny, there would be a failure of public justice. But here there was no intention in the removal to drive away, or steal the living sheep ; but the intent in the removal was to commit another offence of which he might be capitally convicted, and there would be no failure of public justice, if persons were not held to be guilty of stealing the live animal, because if the indictment was properly pre- pared they might still be convicted of a capital offence. In all cases where a slight removal has been held larceny, there was evidence given of an actual removal, and how it was done; but here *there was no *237 evidence of the removal of the sheep in a live state, and the removal after their death would not support a count for stealing sheep, which must be intended to be live sheep. (y) As there was very sufficient evi- dence of the killing with intent to steal the fat, the learned judge direc- ted the jury to find the prisoner guilty, but desired them to say, whether they were of opinion he killed the sheep with intent to steal the whole, or part of the carcases; and the jury found him guilty, and also found that he killed the sheep with intent to steal part of the carcases only, and not with intent to steal the whole of the carcases. But the ques- tion of removal under the first count was not put to the jury to find particularly. The learned judge respited the judgment, as the doctrine in Ilawlin's case,(7t) as applicable to sheep killed with the intent men- tioned in the act of parliament, was not satisfactory to his mind, and he thought it required to be re-considered, and therefore reserved the points upon both counts of the indictment for the consideration of the judges; who were of the opinion that the second count was supported, and not the first; a removal while alive being essential to constitute larceny; and nine of the judges held that the offence of intending to steal a part, was part of the offence of intending to steal the whole, and that the statute meant to make it immaterial whether the intent apj^lied to the whole or only to part.(i) (;)) Ilex V. Edwards, Russ. k Ry. 407. (A) Supra, note ( f). (t) Rex V. Williams, R. & M. C. C. R. 107. In Reg. v. Murlc}^ Slonniouth Spring Ass. 1842, Creswell, J., held on the authority of this case, that proof of stealing part of the carcase supported an indictment for killing with intent to steal the whole carcase. MSS. G. S. G. Upon an indictment for stealing a lamb, it should seem tliat it must be proved that the lamb was alive when it was stolen, in order to warrant the statutory pun- isliment ; for although it has been held that upon an indictment for receiving a lamb, it is no variance if the proof is that the lamb was dead when it was received, Rex v. Puckering, 137 OF STEALING HORSES, COWS, SHEEP, ETC. [bOOK IV. Outting off It was decided upon the repealed statute 14 Geo. 2, c. 6, that cutting part of a ^^ ^^^^ ^£ ^ sheep whilst it was alive with intent to steal such part whilst would support the indictment for killing with intent to steal, if the cut- aiivo, with ^jjjg ^g- must occasion the death of the animal, especially if the offender steal, is hid the part cut off, and meant to fetch it away at a future time. The sufficient indictment was for killing a lamb with intent to steal part of the car- must ensue case ; and it appeared that the prisoner cut off a leg from the animal whilst it was alive, and carried it away before the animal died ; but that the cutting necessarily caused the death of the animal. The learned judge, before whom the prisoner was tried, thought the giving the death wound before the larceny sufficient, and that the animal might be con- sidered as killed by relation from that time, or if not, that the intention to fetch away the log was an intent to continue the larceny thereof, but he saved the point for the opinion of the judges, who were unanimous, principally upon the first point, that the conviction was right. (j) *138 *Upon an indictment for killing a sheep with intent to steal the car- case, it appeared that the prisoner was interrupted by the prosecutor while in the act of killing the sheep, which was wounded in the throat, the jugular vein being cut on one side, but not altogether through. The wound was sewn up, but the sheep died in two days. The jury having found that the prisoner gave the sheep a deadly wound, of which it died, with intent to steal the carcase, were directed to find the pri- soner guilty. And upon a case reserved, the judges were unanimously of opinion that the prisoner was rightly convicted. (^A;) Cook's case. In a case where a prisoner was indicted for stealing a coiv, it appeared men t for' ^^po^ ^^^ evidence, that the animal stolen was a female beast only two stealing a years and a half old that had never had a calf; and that a female beast cowheid q£ j.|^g gQ^ kind, how old soever, if she have never had a calf, is always not to bo ..... '^ supported called a heifer. An objection was therefore taken, by the counsel for by evi- tjjg prisoner, that the charge in the indictment was not supported by stealing a the evidence; and the prisoner being found guilty, the question was re- hef/er. ferred to the consideration of the twelve judges, who were of opinion, that as the statute 15 Geo. 2, c. 34, (now repealed,) mentioned both heifer and cow, it must be considered as using one term in contradis- tinction to the other, in describing the several animals intended to be protected ; and that, as the beast stolen was not therefore such as was described in the indictment, the prisoner was entitled to an acquittal. (?) So where the prisoners were indicted under the same repealed statute for stealing five sheep, and upon the evidence they appeared to be lambs, and the prisoners were found guilty; the judges, upon a case R. & M. C. C. R. 242, j-et that decision proceeded on the sjiecial ground that the punishment was the same whether the lamb was alive or dead when it was received ; but in the case of stealing a live lamb the punishment may be fifteen years' transportation, &c., while it can only be seven for stealing a dead lamb. But, as stealing a lamb is felony at common law, it should seem that if it appeared on such an indictment that the lamb was dead the prisoner might be convicted and punished for the common law felony. See the observation of Pat- teson, J., in Reg. v. M-Culley, post, note («), p. 139, and Rex v. Beany, Russ. & Ry. 416. And it should seem that that punishment would be under the 1 & 8 Geo. 4, c. 28, ss. 8 & 9, and 1 Vict. c. 90, s. 5 : see my note, ante, p. 135. C. S. G. (/) Rex V. Clay. The prisoner was tried before Bayley, J., and the point was considered by the judges (eleven being present,) in East. T. 1819, MS. Bayley, J., and Russ. & Ry. 381. (k) Reg. V. Sutton,* 2 Moo. 0. C. R. 29, 8 C. & P. 291. (l) Cook's case, Warwick Lent Ass. 1V74, and Serjeants' Inn Ilall, 1774. 1 Leach, 105. 2 East, P. C. c. 16, s. 48, p. 616. » Eng. Com. Law Reps, xxxiv. 394. CHAP. XI.] OF STEALING HORSES, COWS, SHEEP, ETC. lo8 roscrvccl, held the conviction wrong. (?7!,) So where the prisoner was in- dicted for stealing a sheep, and it appeared that the animal stolen was a ewe, and the prisoner was found guilty ; the judges upon a case re- served, held the conviction wrong; inasmuch as the statute specifies both ewe and sheep, and therefore the one really meant should be stated. (m) So where the prisoner was indicted for stealing one sheep, and it appeared that the animal stolen was under a year old, and the prosecutor said he should call it a lamb teg; Bolland, B., said, <' Upon this evidence I must direct an acriuittal. In this indictment, the animal in question ought to have been called a lamb. Animals of this kind are lambs, and not sheep till they arc a year old. There was a casc(o) lately before the twelve judges, in which a man had been indicted at the Old Bailey, and tried before Mr. J. J. Parke for stealing " one sheep," and it appearing at the trial that the animal was a ewe, the twelve judges held, that the prisoner could not be convicted, as the statute used the words "ram, ewe, sheep," &e., and that if the animal was in fact a ewe, the indictment must so describe it ; and it was not enough to use the general term sheep. If a ewe is stolen, it must be called a ewe in *the indictment; and so a lamb must be called a lamb; but a *13!> wether should be described as a sheep." Q>) But it has been recently held that an indictment for killing a sheep An iudioi- is supported by proof of killing a ewe or wether, although it cannot be ^^.f^^ ^"'" proved Avhich it was. On an indictment for killing a sheep with intent gheep is to steal the carcase, the prosecutor and his man swore that he had forty- supportefl bVCVluCDCG one sheep, ewes and wethers, but neither of them could tell how many ofkiiiiivj, a of each. One was missed, but they could not tell the sex, and no person cwo or by inspection of the skin and mutton could tell the sex. It was con-^^ "^'' tended that the word "sheep" in the statute meant "wether," and that it lay on the prosecutor to prove that the sheep was a wether. (5) That as proof of stealing a ewe would not support an indictment for stealing a sheep; so proof of stealing a ram would not support such an indict- ment; the only proof, therefore, which would support an indictment for stealing a sheep, would be stealing a wether. It was replied, that the word "sheep" would include either sex, until it was proved to be either a ewe or a ram ; and that the distinctive appellation of ewe and wether are not used till the animals arc three years old, and that this animal was much younger ; but the jury found that the distinctive appellation is used at any time after weaning; and found the prisoner guilty. (/•) (m) Rex V. Loom, R. & M. C. C. R. 130. (n) Rex v. Puddifoot, R. & M. C. C. R. •J4T. (0) Probably Re.x: v. Puddifoot. Ip) Rex V. Birket,=' 4 C. & P. 21G. (9) Rex V. Puddifoot, supra, and Rex v. Chalkley, Russ. & Ry. 258, were cited and relied upon. (/•) Patteson, J., also pointed out that the first act which made shccp-stcaling a capital ofTencc, viz., 14 Geo. 2, c. G, enacted, that if any person shall feloniously steal one or more sheep or other cattle, or shall wilfully kill one or more sheep or other cattle, with a felonious intent, &c., he shall suirer death, &c. In the subsequent year an act was passed, 15 Geo. 2, c. 34, which recited the clause in the former act, and that it was doubtful to what kind of cattle besides sheep the said act was meant to extend, and enacts, " that the said act was meant and intended, and shall be construed, deemed, and taken to extend to any bull, cow, ox, steer, bullock, heifer, calf or lamb, as well as sheep, and to no other cattle whatsoever.'' No doubt seems to have arisen at any time that the word " sheep," in the act 14 Geo. 2, c. 6, extended to sheep of all sexes, rams, ewes, and wethers ; but that act, and 15 Geo. 2, c. 34, are expressly repealed by 7 & 8 Geo. 4, c. 27, which received the royal assent on the 21st of June, 1827 ; and, on the same day, 7 & 8 Geo. 4, c. 20, received the royal assent, sec. 25 of which, containing the words " ram, ewe, sheep, or lamb," gives rise to the present question. * Eng. Com. Law Reps. xix. 351. 139 OF STEALING HORSES, COWS, SHEEP, ETC. [BOOK IV. And, upon a case reserved on the question wliether it was incumbent on the prosecutor upon this indictment to prove that the sheep stolen was a wether, the judges all held that the word sheep in the statute was a generic term, including ram, cwc, and wether, and that the two former words might be rejected ; except Parke, B., Vaughan, J., and Cole- ridge, J., who were of a contrary opinion. (s) *140 *"Where, on an indictment for stealing a sheep, it was doubtful on the evidence whether the animal stolen was a rig sheep or wether ; Al- derson, B., held that it was quite immaterial whether the sheep was a rig or a wether, as the prisoner was equally liable to be convicted on this indictment whether it was one or the other. (<) But it has been held that an indictment for stealing a filly is not supported by evidence of stealing an animal more than three years old, as at three years of age it ceases to be a filly and becomes a mare.(M) 26 Geo, 3, c. As the statute 26 Geo. 3, c. 71, was passed in order to remedy (ac- siauffhter- ^^^^^i^o *o the recital of the act) the facilities afforded to the stealing of ing cattle, cattle by persons of low condition, who kept houses or places for the purpose of slaughtering horses and other cattle, its provisions may be shortly mentioned in this place. It contains many enactments for the regulation of slaughter-houses ; requires persons keeping them to take out a license, and to give notice, previous to the slaughtering and flay- .Slauf'hter- ^^S 0^ ^^J cattle, to an inspector appointed as mentioned in the act, and ing cattio to kill and flay the cattle only within certain hours. The eighth sec- without a iJqjj enacts, that if any person keeping or using any slaughtering-house giving'pro- or place mentioned in the act, shall slaughter any cattle for any other per notice, purpose than for butcher's meat, or shall flay any cattle brought dead to felony. such slaughtering-house or other place without a license, or without It may be observed, that in Puddifoot's case, if it was for stealing a sheep it naight have been possible to treat the indictment as one at common law, but in this case it cannot be so treated, as it contains but one count which is for killing with intent to steal the carcase. (s) Reg. V. M'Cullev, 2 Moo. C. C. R. 34. 2 Lew. 272. With the greatest possible respect for the learned judges who decided this case, it is submitted that it may admit of some doubt whether this decision be not at variance with several well established rules in the construction of statutes. First it is a general rule that effect is to be given to every word in a statute if that can be done by any reasonable construction. Now here the words "ram" and "ewe" are rejected, although by construing the word sheep as " wether," every word has a fitting and full eifect. Secondly, the words of a statute are to be construed in their grammatical and natural sense. Rex v. Ditcheat,^ 9 B. & C. 17G ; Rex v. Great Brintly,'' 10 B. & C. 520 ; Williams v. Roberts, 5 Tyrw. 421 ; and it may be asked how a construction, which renders two out of four words entirely inoperative, can be construing the clause in its grammatical and natural sense. Thirdly, an expression which has precedence in the order of the words must be taken to have been used with reference to things and persons of a higher order or rank. Dwarr. on Stat. 704, citing the Warden of St. Paul's v. The Dean, 4 Price, 65. According to this rule the word ram is of a higher order than sheep : and this is strengtheried by the fact that the two clauses immediately preceding, viz., " horse, mare, &c., bull, cow,'' &c., clearly place the animal of the higher order first. It may be observed, also, that i nthis section, in every other instance the terms used are the names of the species and not of the genus ; and particularly that in each of the two preceding classes the order is first, masculine ; second, feminine ; third, emasculated ; and fourth, young animals ; and the same order is evidently followed in the last class, in the first, second, and last instan- ces ; which affords a very strong argument that it was intended to be followed in the third also, The only ground on which the decision seems to rest is, that the term " sheep" was one of knowng signification, as including ram, ewe, and wether, and that it must therefore be taken to have been used in that sense in the statute ; the answer is that the rule is that where a word has a known signification, and such word is used rjenemUy in a statute, it shall be taken to be used in such sense. Smith i'. Ilarman, 6 Mod. 142. Here the word is used not generally, but in connection with other words, which show that it was not intended to be used generally. C. S. G. (0 Rex V. Stroud,-^ 6 C. & P. 535. (m) Reg. V. Edward Jones, Stafford Sum. Ass. 1839, Williams, J. ^ Eng. Com. Law Reps. xvii. 365. t ijj, j^i. 122. <= lb xxi. 529. CHAP. XI.] OP STEALING HORSES, COWS, SHEEP, ETC. 140 giving notice, or shall slaughter or flay at any time except within the hours limited by the act, or shall not delay slaughtering or killing ac- cording to the direction of the inspector properly authorized, such per- son so offending in either of these cases, and being convicted, shall be adjudged and taken to be guilty of felony, and shall bo punished by fine and imprisonment and such corporal punishment by public or pri- vate whipping, or shall be transported for any term not cxceciling seven years, as the court before whom the offender shall be tried and convicted, shall direct. ("?;) The ninth section enacts, that persons keeping or using Destroying such slauehterincj-housc or place, and throwing into lime, or rubbing °V,''"'"^''".-^ *= ^ ••■ ' ° . ' , . ° hides, mis- thercwith or with any other corrosive matter, or destroying, or burying jomcauor. hides of cattle slaughtered or flayed by them, shall be guilty of a mis- demeanor, punishable by fine, imprisonment, and whipping. The statute also creates other offences of a smaller degree, and imposes penalties recoverable by summary proceedings before justices of the peace. (?«) Exceptions. The fourteenth section provides, that the act *shall not extend to any *141 currier, felt-maker, tanner, or dealer in hides, who shall kill any dis- tempered or aged cattle, or purchase any dead cattle for the lond fide purpose of selling, using or curing the hides thereof, in the course of their respective trades ; nor to any farrier employed to kill aged and distempered cattle; nor to any person who shall kill any of their own or other cattle, or purchasing any dead horse or other cattle, to feed their own hounds or dogs, or giving away the flesh for the like purpose. But it is further enacted, that if any collar-maker, currier, &c., or other person shall, under colour of their trades, knowingly or willingly kill any sound or useful horse, gelding, mare, foal or filley or boil or otherwise cure the flesh thereof for the purpose of selling it, such per- son shall be deemed an offender within the meaning of the act, and for every oftence, forfeit any sum not exceeding twenty, nor less than ten pounds, (a:) ^CHAPTER THE TWELFTH. *142 OP STEALING AND DESTROYING DEER. TuE former statutes upon this subject are repealed by the 7 & 8 Geo. 4, c. 27. The 7 &; 8 Geo. 4, c. 29, s. 20, enacts, "that if any person shall un-T & 8 Geo. lawfully and wilfully course, hunt, snare, or carry away, or kill, or 2^' s'tcal- wound, or attempt to kill, or wound, any deer, kept or being in the in-ing &.c., closed part of any forest, chase, or purlieu, or in any inclosed land '^^'^ '"any wherein deer shall be usually kept, every such offender shall be guilty ground, of felony, and bcino- convicted thereof, shall be liable to be punished in t"*^!""/; . o . . ' _ I The like in the same manner as in the case of simple larceny •,{(i\ and if any person coriaiu uu- (r) Sec a precedent of an indictment against the Iceeper of a slanp;liter-liousc, for slaugh- tering a horse without giving the proper notice. 3 Chit. Crim. L. '721. (w) Sec the statute, and 2 Burn's Just. tit. Horses, sec. 1. (:c) 2G Geo. 3, c. 71, s. 15. See also the 5 & G Wm. 4, c. 59, ss. 1 & 8, ^vhicli impose penalties for keeping or using places for slaughtering horses not licensed under the 2G Geo. 3, and also for employing at work, and not properly feeding horses or cattle intended to be slaughtered. (a) Ante, p. 1. 142 OF STEALING AND DESTROYING DEER. [book IV. inclosed ground liunishable suramarilj'. Deer-steal- ing iu imia- closed ground after any other of- fence as to deer, felo- ny. *143 Sec. 27. Suspected persons found in possession of venison, &c., and notsatisfac torily ac- counting for it. shall unlawfully and wilfully course, hunt, snare, or carry away, or kill, or wound, or attempt to kill or wound, any deer kept or being in the uninclosed part of any forest, chase, or purlieu, he shall for every such offence, on conviction thereof before a justice of the peace, forfeit and pay such sum, not exceeding fifty pounds, as to the justice shall seem meet ; and if any person, who shall have been previously convicted of any offence relating to deer, for which a pecuniary penalty is by this act imposed, shall offend a second time, by committing any of the offences hereinbefore last enumerated, such second offence, whether it be of the same description as the first oflPence or not, shall be deemed felony, and such offender, being convicted thereof, shall be liable to be punished in the same manner as in the case of simple larceny ."(aa) Where a prisoner was indicted under this section for a second offence, and the previous conviction was made by two justices, it was held good. And where such a conviction, after stating the venue in the margin in the usual way, set forth that on a certain day at a certain place in the county of Oxford, the prisoner was convicted for that he did on a cer- tain day unlawfully use an engine for the purpose of killing deer in the forest of Wychwood, but omitted to state where or in what county the offence was committed, but proceeded to direct the penalty to be paid to the overseers of D. in the said county, " where the said offence was committed," it was held that this sufl&ciently showed the offence to have been committed in the county of Oxford. (i) Upon an indictment for a second offence against the 42 Geo. 3, c. 107, (now repealed,) by killing deer, objections might be taken to the validity of the previous conviction. An indictment on that statute stated that the prisoner was convicted by a justice for the *county of Essex for unlawfully carrying away a deer, and that afterwards he feloniously and unlawfully did offend a second time by feloniously aid- ing in killing a deer. The conviction was made by a magistrate of Es- sex at a place in Middlesex, and was a conviction of the prisoner and three other persons. The offence was committed in Essex. It was ob- jected, 1st, that the indictment did not state that the prisoner was duly convicted ; 2dly, that he was not duly convicted, as the conviction was in Middlesex; 3dly, that the conviction was of four, whereas it was stated in the indictment as of the prisoner only. And, on a case re- served, the judges held that the prisoner ought not to have been con- victed of the felony. (Z^t) The 27th section of the same statute enacts, ^'that if any deer, or the head, skin, or other part thereof, or any snare or engine for the taking of deer, shall by virtue of a search warrant, to be granted as hereinafter mentioned, be found in the possession of any person, or on the premises of any person, with his knowledge, and such person, being carried before -a justice of the peace, shall not satisfy the justice that he came lawfully by such deer, or the head, skin, or other part thereof, or had a lawful occasion for such snare or engine, and did not keep the same for any unlawful purpose, he shall on conviction by the justice, forfeit and pay (act) Ibid. (i) Rex V. Weale,^ 5 C. & P. 135, Park, J. A. J. The second point decided in this case is directly contrary to the decision in Rex v. Johnson, 1 Str. 231, and seems to have been wrongly decided. C. S. G. (Ob) Rex V. Allen, Russ. & Ry. 513. The reporters add, the second objection was prob- ably considered fatal. =" Eng. Com. Law Reps. xxiv. 245. CHAP. XII.] OF STEALING AND DESTROYING DEER. 143 any sum not exceeding twenty pounds ; and if any such person shall not, In case under the provisions aforesaid, be liable to conviction, then for the dis- bo^ wnvici- covery of the party who actually killed or stole such deer, it shall be cd, how tlio lawful for the justice, at his discretion, as the evidence given, and theJ"^^^^;^°J"''^ circumstances of the case shall require, to summon before him every person through whose hands such deer, or the head, skin, or other part thereof, shall appear to have passed; and if the person from whom the same shall have been first received, or who shall have had possession thereof, shall not satisfy the justice that he came lawfully by the same, he shall, on conviction by the justice, be liable to the payment of such sum of money as is hereinbefore last mentioned." By sec. 28, " if any person shall unlawfully and wilfully set or use Sec. 28. any snare or engine whatsoever, for the purpose of taking or killing ^P"'"? ^"" deer, in any part of any forest, chase, or purlieu, whether such part be ukin},' Juur inclosed or not, or in any fence or bank dividing the same from any o"" ?""'"?; land adjoining, or in any inclosed land where deer shall be usually ij-uces. kept, or shall unlawfully and wilfully destroy any part of the fence of any land where any deer shall be then kept, every such offender, being convicted thereof before a justice of the peace, shall forfeit and pay such sum of money, not exceeding twenty pounds, as to the justice shall seem meet." Sec. 29. By sec. 29, " if any person shall enter into any forest, chase, or purlieu, i>^"cr kccp- whether inclosed or not, or into any inclosed land where deer shall be g^,■y^Q [i^q usually kept, with intent unlawfully to hunt, course, wound, kill, snare, guns, &c., or carry away any deer, it shall be lawful for every person entrusted ^^.^^^^.j^^'^^i^ with the care of such deer, and for any of his assistants, whether in his demand, presence or not, to demand from every such offender any gun, fire-arms, jgify^'^ „„ snare, or engine in his possession, and any dog there brought for hunt- tUo same. ing, coursing, or killing deer, and in such case the offender shall not immediately deliver up the same, to seize and take the same from him in any of those respective places, *or, upon pursuit made, in any other *144 place to which he may have escaped therefrom, for the use of the owner of the deer; and if any such offender shall unlawfully beat or wound Resistance any person entrusted with the care of the deer, or any of his assistants, ^tc. *^fn^the in the execution of any of the powers given by this act, every such execution offender shall be guilty of felony, and, being convicted thereof, shall be ^^['1*^"" liable to be punished in the same manner as in the case of simple larceny. "(6) By the express words of this section a demand must be made of the gun, &c., before a seizure ; the 16 Geo. 3, c. 30, s. 9, (now repealed,) authorised persons entrusted with the care of deer to seize any gun, &c., brought by any person with intent unlawfully to shoot deer, without making a previous demand necessary j but it was held upon that statute that an assistant keeper had no right to seize the person of one so armed, in order to get his gun, without having first demanded the gun. On an indictment under the 10 Geo. 3, c, 30, s. 9, for assaulting one Barrett in the execution of his oflice as assistant keeper of Cranbourne Chase, it appeared that Barrett saw the prisoner in the Chase with a gun in his hand, running; he pursued him, and called out that if he did not stop he would knock him down, and threw a stick at him, but it did not ap- pear that the stick hit him. When he arrived within twenty yards of (i) Ante, p. 1. 144 OF TAKING, ETC., HAEES, ETC., IN A WARREN, ETC. [BOOK IV. the prisoner he turned round, and presenting his gun at Barrett threat- ened to blow his brains out if ho came any nearer. On Barrett still advancing the prisoner ran on, until Barrett came within four or five yards of him, when he again put his gun to his shoulder, pointed it towards Barrett, and threatened as before. Barrett, however, still ad- vanced, and put out his hand to catch hold of the prisoner, his inten- tion being to take both his gun and his person, when the prisoner, seizing the barrel of his gun, struck Barrett with the butt end a violent blow (in the head, which knocked him down and stunned him. Upon a case reserved, the judges were unanimous that as the keeper had no right to seize the person in order to get the gun, unless he had first demanded the gun, he was not duly in the execution of his office, when the pri- soner beat him, and that the conviction was therefore wrong, (c) Apprchen- The God section of the same statute contains a general provision for offenders ^^® apprehension and discovery of offenders punishable under this act. Summary and the 64th and following sections regulate the proceeding in respect convio- ^Q ^ summary conviction. tions. •' . . p . . . By the 61st section, in cases of felony, principals in the second de- and ace'es- g^cc, and accessories before the fact, are punishable in the same manner sories. ^s principals in the first degree ; and accessories after the fact (except Abettors in receivers) are, on conviction, liable to be imprisoned for any term not misdemea- exceeding two years, and abettors in misdemeanors are liable to be in- rnmiuOT dieted and punished as principal offenders. By section 62, abettors in offences, offences punishable on summary conviction, are made punishable as principal offenders. (c?) *145 ^CHAPTER THE THIRTEENTH. OP TAKING OR KILLING HARES OR CONIES IN A WARREN, ETC. But the statutes formerly existing upon this subject are repealed by 7 & 8 Geo. the 7 & 8 Geo. 4, c. 27. sb.^Kiiiin''^ But the 7 & 8 Geo. 4, c. 29, s. 30, enacts, " that if any person shall hares or unlawfully and wilfully in the night-time take or kill any hare or coney wMreV"^ ^ ^^ ^^^y warren or ground lawfully used for the breeding or keeping of <&c., in the harcs or coneys, whether the same be inclosed or not, every such offender th^'d' ""^ ^^ ^^^^^ ^® S^^^^y of a misdemeanor, and being convicted thereof shall be time. punished accordingly; (a) and, if any person shall unlawfully and wil- (c) Rex V. Amey, Russ. & Ry. 500. A further question, not decided, was whether an assistant keeper, not appointed or confirmed by the owner of the chase, had authority to seize guns unless the liead keeper were present : the words " any of his assistants, whether in his presence or not," in sec. 29, seem int reduced to meet this point. C. S. G. (d) Ante, p. 2, as to hard labour and solitary confinement. (a) The 7 & 8 Geo. 4, c. 29, s. 4, " with regard to the place and mode of imprisonment for all indictable ofleuces punishable under this act," enacts that " where any person shall be convicted of any felony or misdemeanor punishable under this act, for which imprison- ment may be awarded, it shall be lawful for the court to sentence the offender to be impris- oned, or to be imprisoned and kept to hard labour in the common gaol or house of correction and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment,'or of such imprisonment with hard labour, as to the the court in its discretion shall seem meet," But by the 1 Vict. c. 90, s. 5, it is enacted that " it shall not be lawful for any court to direct that any offender shall be kept in solitary confine- ment for any longer period than one month at a time, or than three months in the space of one year." CHAP. Xlir.] OF TAKING, ETC., HARES, ETC., IN A WARREN, ETC. 145 fully in the day-time, take or kill any hare or coney in any such warren or ground, or shall at any time set or use therein any snare or engine for the taking of hares or coneys, every such offender, being convicted thereof before a justice of the peace, shall forfeit and pay such a sum of money not exceeding five pounds, as to the justice shall seem meet ; provided always that nothing herein contained shall affect any person r''''^vi'i'.. taking or killing in the day-time any coneys on any sea-bank or river- bank in the county of Lincoln, so far as the tide shall extend, or within one furlong of such bank." With respect to what shall be deemed a talcing of a hare. Sea. it may Clorcr'fi be observed, that in a case upon the repealed statute, 5 Geo. 3, c. 14, in '^'f'^'j^i,^ .^ which the prisoner was indicted for entering a warren in the night-time, coneyin ii and there takinr/ a coney against the will of the occupier of the warren, ^^'^f^- j'«'|<^ it appeared in evidence that he set wires in the warren at about six constitute o'clock in the evening of a day towards the latter end of December ; ^^° offence, that a coney was caught in one of the wires ; and that he came again animal was before six o'clock the next morning, when he was surprised and seized ""t kiiica, by the warrener just as he was about laying hold of the wire in which p°j.t^ji^j the coney was caught; the coney being then alive : and, upon a case not take it reserved, the judges thought that the taking by the wire was a taking '^^^^^ by the prisoner *within the meaning of the statute, and that he had *14 G been properly convicted. (Z/) The God section contains a general provision for the apprehension Apiirchon- and discovery of offenders punishable under the act, and the 64th and ^V^"jj. *j ' following sections regulate the proceedings in respect of summary con- ers. victions. By the Gist section abettors in misdemeanors are liable to be indicted Abettors, and punished as principal offenders : and by the 62d section abettors in offences punishable on summary convictions are made punishable as principal offenders. The act applies to places which are cither warrens, or which are simi- Wimt lar to warrens, were rabbits are commonly kept, and not to places '^'•If^'' "[" ,,. ,, ^ . T '■ ^ wituin tuo where a tew rabbits may be kept. On an indictment for destroying statute, conies in the night-time in a ground lawfully use for breeding them, it appeared that the prosecutor kept rabbits, which ran about loose in his rick-yard, and that the rabbits were destroyed by poison in the night- time ; it was submitted that the statute only applied to warrens, and to places similar to warrens, but which could not legally be called war- rens. Patteson, J., " This place was not used exclusively for rabbits ; and it appears that the prosecutor merely kept some rabbits in his rick- yard. If the yard had been kept exclusively for rabbits, I should have doubted it ; but I think that this case is clearly not within the act of parliament. The act applies to places commonly called rabbit-warrens, and not to places where a few rabbits are kept. "(c) (h) Glover's case, cor. Baylcy, J., Somerset Spr. Ass. 1814, and East. T. 1814, MS. Bay- ley, J., and Russ. & Ry. 2G9. (c) lle.\ V. Garrutt,* G C. & P. .300. * Eag. Com. Law Reps. xxv. 442. *147 OF UNLAWFUL TAKING. [BOOK. IV. *CHAPTEIl THE FOURTEENTH. OF UNLAWFULLY TAKING OR ATTEMPTING TO TAKE FISH. OiTonco at It is admitted that larceny at common law may be committed of fish, law "'°" when confined in a trunk or not;(a) but doubts have been raised whe- ther it may be committed in like manner of fish in a pond. It should seem, however, upon principle, and according to the better opinions, that larceny may be committed of fish in a pond, if the pond be private enclosed property, and of such kind and dimensions that the fish within it may be considered as restrained of their natural liberty, and liable to be taken at any time, according to the pleasure of the owner. (i) But clearly larceny at common law cannot be committed of fish at their natural liberty in rivers or great waters, (c) Offences by Many statutes were passed at different times for the better preserva- tion of fish, and for regulating the fisheries in various parts of the king- dom; but some of them became obsolete, and the others were repealed by the 7 & 8 Geo. 4, c. 27. Taking lihli The 7 & 8 Grco. 4, c. 29, s. 34, enacts, " that if any person shall un- "^ f"^ -t k'lwfully and wilfully take(f?) or destroy any fish in any water which ate in land shall ruuHhrough or be in any land adjoining(c) or belonging to the belonging dwelling-house of any person, being the owner of such water, or having ing-house.' ^ "ght of fishery therein, every such ofi"ender shall be guilty of a mis- In any pri- dcmeanor, and, being convicted thereof, shall be punished accord- ei'se^wher7"^^"S;(/) ^^<^ if any person shall unlawfully and wilfully take or de- stroy, or attempt to take or destroy, any fish in any water, not being such as aforesaid, but which shall be private property, or in which there *148 ^^^^^^ ^^ ^^J private right of fishery, every such ofi"ender, *being con- victed thereof before a justice of the peace, shall forfeit and pay, over and above the value of the fish taken or destroyed, (if any,) such sum of money, not exceeding five pounds, as to the justice shall seem meet : Provisions pi'ovided always, that nothing hereinbefore contained shall extend to an^lerf"^ ^^^ person angling in the day-time ; but if any person shall by angling in the day-time unlawfully or wilfully take and destroy, or attempt to take or destroy, any fish in such water as first mentioned, he shall, on conviction before a justice of the peace, forfeit and pay any sum not exceeding five pounds ; and if in any such water as last mentioned, he shall on the like conviction, forfeit and pay any sum, not exceeding two pounds, as to the justice shall seem meet; and if the boundary of any (a) Ante, p. 83. 2 East, P. C. c. 16, s. 43, p. 610. (6) Staundf. 25 b. 3 Inst. 109. Lamb. 274. 1 Hawk. P. C. c. 33, s. 39. 2 East, P. C. c. IG, s. 43, p. 610, 611. But the indictment should describe the pond, so that it may appear on the face of it, that taking fish out of such a pond is felony. 2 East, P. C. 611. (c) 3 Inst. 109. 1 Hawk. P. C. c. 33, s. 39. (d) If fish were enclosed in a net, or hooked on a line, it would seem that the case would come within this clause by analogy to Glover's case, ante, p. 146, although there had been uo actual removal of them by the hands of the prisoner. C. S. G. (e) Rex V. Hodges, ante, p. 67, as to the meaning of the term adjoining. (/) That is by fine or imprisonment, or both ; the imprisonment may be with or without hard labour, in the common gaol or house of correction, and the oflender may be kept in solitary confinement for any portion of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at a time, or three months in the space of one year as to the court shall seem meet, under the 7 & 8 Geo. 4, c. 29, s. 4, and 1 Vict. c. 90, s. 5. See my note, ante, p. 145. C. S. G. CHAP. XIV.] OF UNLAWFUL TAKING. 148 parish, township, or vill, shall happen to be iu or by the side of any such water as is hereinbefore mentioned, it shall be sufficient to prove that the offence was committed either in the parish, township, or vill named in the indictment or information, or in any parish, township, or vill adjoining thereto." By sec. 35, " If any person shall at any time be found fishing against Tho tackle the provisions of this act, it shall be lawful for the owner of tho ground, °,j/''\jy" water, or fishery, where such offender shall be so found, his servants, seized. or any other person authorized by him, to demand from such offender any rods, lines, hooks, nets, or other implements for taking or destroy- ing fish, which shall then be in his possession, and in case such offender shall not immediately deliver up the same, to seize and take the same from him for the use of such owner : provided always, that any person Angler, on angling in the day-time against the provisions of this act, from whom ^Ig^'^^gij^e any implements used by anglers shall be taken, or by whom the same exempt shall be delivered up as aforesaid, shall, by the taking or delivering f''"" thereof, be exempt from the payment of any damages or penalty for such angling." By sec. 36, " If any person shall steal any oysters or oyster brood Stealing from any oyster-bed, laying or fishery, being the property of any other °ygfg|!^ °^ person, and sufficiently marked out or known as such, every such brood from offender shall be deemed guilty of larceny, and, being convicted thereof, r'f^^' shall be punished accordingly ;(/) and if any person shall unlawfully Dredging and wilfully use any dredge, or any net, instrument, or engine whatso-f*'.'" °?'^^';'^ ever, within the limits of any such oyster fishery, for the purpose of ii,j,its ^f taking oysters or oyster brood, although none shall be actually taken; any oyster or shall, with any net, instrument, or engine, drag upon the ground or ^ *^^^' soil of any such fishery, every such person shall be deemed guilty of a misdemeanor, and, being convicted thereof, shall be punished by a fine or imprisonment, or both, as the court shall award ; such fine not to exceed twenty pounds, and such imprisonment not to exceed three calendar months; and it shall be sufficient in any indictment or infor- mation to describe, either by name or otherwise, the bed, laying, or fishery in which any of the said offences shall have been committed, witiiout stating the same to be in any particular parish, township, or vill : provided always, that nothing herein contained shall prevent any person from catching or fishing for any floating fish within the limits of Proviso, any oyster fishery with any net, instrument or engine adapted for tak- ing floating fish only." *149 The 63d section contains a general provision for the apprehension of 4'^i*'''-^'^°" offenders punishable under the act, except only as to the offence of ^fl-enders. angling in the day-time : and the 64th and following sections regulate Summary the proceedings in respect of summary convictions. ti^ns!*^' The 61st section as to cases of felony, makes principals in the second principals degree, and accessories before the fact, punishable in the same manner in the se- as principals in the first degree ; and accessories after the fact (except f,°°g ^^^ receivers) are on conviction liable to be imprisoned for any term not accessories, exceeding two years ; and abettors in misdemeanors arc liable to be indicted and punished as principal offenders. By section 62, abettors in offences punishable on summary conviction, arc made punisliable as principal offenders, (y) (f) For the punishment of larceny, see ante, p. 1. Iff) See ante, p. 2, as to hard labour and solitary confinement. 149 OF PLUNDERING VESSELS, ETC. [bOOK IV. Indictment Where an indictment cliargctl tlic prisoner with unlawfully entering a garden adjoining a dwelling-houpc, and with a certain net stealing out of a pond in the said garden a certain quantity of live gold and silver fish of the goods and chattels of S. T. ; the judges held the indictment good; the case being brought within the 5 Greo. 3, c. 14 (now repealed), without the allegation that the fish were the goods and chattels of any person, and therefore that part of the indictment was surplusage, [h) An indictment on the same repealed statute was good, although it did not state the means by which the fish were taken or stolen, and although it alleged them to have been feloniously stolen. An indictment stated that the prisoner unlawfully did enter into a certain park, through which there ran a river, and " feloniously did steal, take, kill, and carry away certain fish," specifying them : it was objected that the ways and means by which the fish were taken ought to have been specified, and that the fact was alleged to be done feloniously, and the offence was not a felony ; but, on a case reserved, the judges thought there was nothiog in these objections. (i) *150 *CHAPTER THE FIFTEENTH. OP STEALING IX ANY VESSEL IN PORT, OR UPON ANY NAVIGABLE RIVER, ETC., OR IN ANY CREEK, ETC., AND OE PLUNDERING SHIPWRECKED VESSELS. Stealing TiiE 7 & 8 Geo. 4, c. 29, s. 17, enacts, " that if any person shall steal goods from ^^^ goods or merchandise in any vessel, barge, or boat of any descrip- a port, tion whatsoever, in any port of entry or discharge, or upon any naviga- ^^^^^! „ ble river or canal, or in any creek belonging to or coramunicatins; with any such port, river, or canal, or shall steal any goods or merchandise from any dock, wharf, or quay, adjacent to any such port, river, canal, or creek, every such offender, being convicted thereof, shall be liable to any of the punishments which the court may award as hereinbefore last mentioned." The 1 Vict. c. 90, s. 2, after reciting the preceding section, repeals so much of it " as relates to the punishment of persons convicted of any of the ofi"ences" therein contained, and enacts that " every person con- victed after the commencement of this act (1st October, 1837) of any such offences respectively, shall be liable to be transported beyond the seas for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years :" and by sec. 3, the court may " direct such impi'isonment to be with or without hard labour, in the common gaol or house of correction, and also direct that the ofi"ender shall be kept in solitary confinement for any portion or por- tions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year." The 1 Vict. c. 87, after by sec. 1 repealing sec. 18 of the 7 & 8 Geo. (h) Hundson's case, 2 East, P. C. c. 16, s. 43, p. 611. (?) Rex V. Carradice, Russ. & Ry. 205. The judges held the conviction wrong on the ground that the fish were not " bred, kept, or preserved" in the river, as the river ran in its natural course, and there was nothing to keep or preserve the fish within the park. CHAP. XV.] OP PLUNDERING VESSELS, ETC. 150 4, c. 29, as to principals in the first and second degrees and acces- sories before and after the fact respectively, by sec. 8 enacts, " that whosoever shall plunder or steal any part of any ship or vessel which Plundering shall be in distress, or wrecked, stranded, or cast on shore, or any goods, ^y^^^'® ^^ merchandise, or articles of any kind belonging to such ship or vessel,(6) and be convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fifteen years nor less than ten years, or to be imprisoned for any term not ex- ceeding three years." By sec. 9, principals in the second degree and accessories before the fact, are punishable in the same manner as principals in the first *de- *151 cree, and accessories after the fact (except receivers) are liable to be im- prisoned for not exceeding two years ; and by sec. 10, the court may sentence offenders to be imprisoned, or be imprisoned with hard labour, in the common gaol or house of correction, and also to be kept in soli- tary confinement for any portion or portions of such imprisonment, or imprisonment with hard labour, not exceeding one month at any time, and not exceeding three months in any one year.( not possession of any person, or on the premises of any person with his satisfactory knowledge, and such person, being carried before a justice of the peace, account, shall not satisfy the justice that he came lawfully by the same, then the sums 'shall, by order of the justice, be forthwith delivered over to or for the use of the rightful owner thereof; and the offender, on convic- tion of such offence before the justice, shall forfeit and pay, over and above the value of the goods, merchandise, or articles, such sum of money, not exceeding twenty pounds, as to the justice shall seem meet." By sec. 20, "if any person shall offer or expose for sale any goods, if any per- merchandise, or articles whatsoever, which shall have been unlawfully ^"^^ offers taken, or reasonably suspected to have been, from any ship or vessel in ed goods distress, or wrecked, stranded, or cast on shore as aforesaid, in every f""" ^"l^"' *** such case any person to whom the same shall be offered for sale, or any bc"seizeJ. officer of the customs or excise, or peace officer, may lawfully seize the &c. same, and shall, with all convenient speed, carry the same or give notice of such seizure, to some justice of the peace ; and if the person who shall have offered or exposed the same for sale, being duly summoned by such justice, shall not appear and satisfy the justice that he came lawfully by such goods, merchandise, or articles, then the same shall, by order of the justice, be forthwith delivered over to or for the use of the rightful owner thereof, upon payment of a reasonable reward (to be ascertained by the justice) to the person who seized the same ; and the ' ffcnder, on conviction of such offence by the justice, shall forfeit and pay, over and above the value of the goods, merchandise, or articles, such sum of money, not exceeding twenty pounds, as to the justice shall seem meet." The 63d section contains a general provision for the apprehension Apprehen- (6) The 18th section of the Y & 8 Geo. 4, c. 29, was similar to sec. 8 of 1 Vict. c. 87, bnt contained a proviso that where thingjs of small value were cast on shore, and stolen without circumstances of violence, the oflender might be prosecuted for simple larceny. (c) See the sections, ante, vol. 1, p. 8G8. Vol. II.— 11 151 OF PLUNDERING VESSELS, ETC. [BOOK IV. aion of of- and discovery of offenders punishable under the act : and the 64th and Summary following sections regulate proceedings in respect of summary convic- convic- tions. p'^!'^'. By the 61st section, in cases of felony, principals in the second de- and acccs- g^'^e and accessories before the fact are punishable in the same manner sories. as principals in the fii'st degree ; and accessories after the fact (except receivers) are on conviction liable to be imprisoned for any term not exceeding two years; and abettors in misdemeanors are liable to be misdemca^ indicted and punished as principal offenders. By section 62, abettors nors and in in offences punishablc on summary conviction, are made punishable as minor of- pnucipal offenders. *152 *^^ ^^J ^^ observed, that in a case upon the repealed statute 24 Geo. A3 to the 2, c. 45, the words " goods, wares, and merchandise" were considered "^''^"i^f *^^^^ restrained to such goods, &c., as were usually lodged in vessels, or '' on wharfs or quays. ((/) So that where the prisoner was indicted upon that statute for stealing a considerable sum of money out of a ship in port, the case was h olden not to be within the statute, though great part of the money consisted of Portugal money not made current by proclamation, but commonly current, (e) Lnggago of The luggage of a passenger going by a steamer is within the words passengers, k goods or merchandise" in sec. 17. The prisoners were indicted for stealing a portmanteau, two coats, and various other articles, in a vessel upon the navigable river Thames. The property in question was the luggage of a passenger going on board the Columbian steamer from London to Hamburgh ; and it was held that the object of the statute was to protect things on board a ship, and that the luggage of a pas- senger came within the general description of goods. (/) We have seen that where the master and owner of a ship took some of the goods delivered to him to carry, it was held not to be larceny, as he did not take the goods out of their package ; and it was also held that, even if under the circumstances it had amounted to larceny, it would not have been an offence within the repealed statute of the 24 Geo. 2.(^) Where the prisoner was indicted for stealing a quantity of deals " in a certain barge on the navigable river Thames," and it appeared that the barge had been brought into Limehouse dock, and there moored ; and by the efflux of the tide it was left aground, and in the night the deals were stolen ; it was held that the offence laid was not proved within the meaning of the 24 Geo. 2, c. 45, as the evidence proved that the offence was not committed on the navigable river Thames, but upon the banks of one of its creeks. (^^) By the 1 Vict. c. 87, s. 13, any felony punishable under that act committed within the jurisdiction of the Admiralty of England or Ire- land, " shall be dealt with, inquired of, tried and determined in the same manner as any other felony committed within that jurisdic- tion. (/;) (d) 2 East, P. C. c. 16, s. 85. p. 647. (c) Grimes's case, Maidstone Lent. Ass. 1752. Fost. 79, in the note, S. P. in Leigh's ca6e 0. B. 1764. 1 Leach, 52. (/) Rex V. Wright,^ 7 C. & P. 159. Park, J. A. J., and Alderson, B. (ff) Rex V. Madox, Mich. T. 1805. Russ. & Ry. 92. A?Ue, p. GO. (ag) Pike's case, 2 East, P. C. c. 16, s. 85, p. 647. (A) By sec. 14 the act does not extend to Scotland. » Eng. Com. Law Reps, xxxii. 479. CHAP. XVI.] HAVING CUSTODY AS SERVANTS. *153 ♦CHAPTER THE SIXTEENTH. OF LARCENY BY SERVANTS, AND PERSONS WHO HAVE THE CUSTODY OP GOODS AS SERVANTS, AND NOT THE LEGAL POSSESSION. Some statutes upon this subject were repealed by the 7 & 8 Geo. 4, Offences at c. 27, havicg been for a long time but little resorted to, as the common j^^w "^^'^ law applies to the fraudulent conversion by a servant, to his own use, of the goods of his master. The punishment for a felonious stealing by a servant from his master, is made more severe than in an ordinary case of larceny by the 7 & 8 Geo. 4, c. 29, which will be more fully mentioned at the close of this chapter. The clear maxim of the common law established by a variety of cases, is, that where a party has only the bare charge or custody of the goods of another, the legal possession remains in the owner ; and the party may be guilty of trespass and larceny in fraudulently converting the same to his own use. (a) And this rule appears to hold univer- sally in the case of servants, whose possession of their master's good.-;, by their delivery or permission, is the possession of the master hini- self.(&) In sixpport of this maxim of the common law here laid down, it will be proper to cite some of the more modern cases in which it has been recognized. f A sheriff's officer clandestinely selling for his own use part of the Eastall's goods which he has seized under a writ of fieri facias, is guilty of .^^.'jfrifl-s larceny. The prisoner, a sheriff's officer, under a writ of fieri facias ofSccr against one Bell, seized the goods in Bell's house, amongst which were c}^"'^"^^- o . . , ® 11 linely sell- some cugravmgs in a locked closet. He removed a bead from the door ing goods of that closet, took out the engravings and sold them for his own use. lc^''C"i- Upon an indictment against him for larceny, it was urged that this was a breach of trust only; but upon the point being saved, the judges held it a larceny; on the ground that the officer had the custody of the goods only, like a servant, and not the legal possession ; and the con- viction was held to be right, (c) The prisoner was indicted for stealing a bill of exchange of the value Paradice's of 100^., the property of the prosecutor. It appeared in evidence, that ^^^^- •'^'"" he was foreman and book-keeper to the prosecutor, who was a mercer who was at Devizes, at a yearly salary, and paid and received money for him, employed not living in the house, but going there every dny to transact his busi- °*i .'54 ness. The prosecutor delivered bills to him to the *amount of 1500/., nian aud and amongst them the bill in question, with directions to enclose them ''<'"k- in different covers, and send them by the day's post, as he had often uotreJidiu'^ n (a) 2 East, P. C. c. 16, s. 14, p. .'iG4, ct scq. and the authorities there cited. And sec as to a bare charge or custody, ante, p. 21. 2 East, P. C. ibid. Ante, p. 21. Rex V. Eastall, Mich. T. 1822, MS. Bayley, J. j- [The taking by the defendant an article delivered to him as a servant, to remove from one room to another, and converting the same to his own use is larceny. United Slates v. Glew, 4 Wash. C. C. Rep. TOO. A person employed by a mercantile firm as a salesman in their store, having full control over the goods in the store-room, and the money in the cash drawer, for the purpose of his employment, abstracts a part of the goods and money with u fraudulent intent to convert the same to his own use : Held, he is guilty of larceny. Walker V. The Commonwealth, 8 Leigh, 743.] 15-1 OF LARCENY BY SERVANTS AND OTHERS [bOOK IV. in tho sent bills before, to his correspondent in London, as cash to be carried his"umstei- '^ ^^^ credit of the prosecutor's account. The prisoner did not send oraboizlocl the bills as he was directed ; and the next day, having obtained the "■ ^^^ °^ prosecutor's leave to go to visit some relations in the neighbourhood, he which ho' went to Salisbury, got cash for the bill in question, which had been roeeivod indorsed by the prosecutor, and was also indorsed by the prisoner, and inasior to thcu went ofF; but was afterwards apprehended at Exeter, with part of be trniis- the bills and the money. It was contended on behalf of the prisoner at corresimn- ^ho trial, that the prosecutor, having delivered the bills to him, had dont, ill thereby parted with the possession of them, so that the prisoner could course"of ^^^ ^^ guilty of felony in taking them away ; and the case was resem- busiuess, bled to that of a carrier intrusted to carry goods. ((/) But the prisoner h^iV*^ T'*^ ^^^ convicted ; and judgment was respited, in order to take the opinion be larceny, of the judgcs, whether the case amounted to felony, or was only a breach of trust. They were all of opinion (with the exception of Lord Camden, who was absent,) that the case amounted to larceny ; upon the princi- ple that the possession still continued in the master, (e) Robinsou's A carter going away with his master's cart was holden to have been guilty of felony. (/) Bass's case. The prisoner was convicted of stealing gauze of the value of eighty The pnso- pQmjfjg^ the property of the prosecutor : and the case was referred to vaut of tho the consideration of the twelve judges, upon the following facts : The prosecutor, prisoner was servant and porter in the general employ of the prosecutor, delivered who was a gauze-wcavcr, and was sent with a package of goods from to him by hig master's house, with directions to deliver them to a customer at a to carry to ' P^^ticular place. In his way he met two men, who invited him into a a customer, public house to drink with them, and then persuaded him to open the Toicfaud^ package, and sell the goods to a person whom one of the men brought converted in ; which he accordingly did, by taking them out of the package, put- the money ^j^g them into the man's bag, and receiving to his own use, part of the use; and money for which they were sold. All the judges held this to be felony, this was on the ground that the possession of the goods still remained in the be laTceuy; master. ((/) the posses- In a case where the master of a captured vessel got property from "■oods not*^ ^^^ vessel clandestinely under particular circumstances, it seems to being out havc been held not to amount to larceny. The vessel was Prussian, master bv ^^^^ ^^ ^J ^ British cruizer, and at first ordered to be restored, but such deli- afterwards, hostilities breaking out with Prussia, condemned as prize to ^'^■"y* the king, as having been taken before hostilities. The captain of the vessel lodged on shore, but went occasionally to the ship ; the ship- keeper, who was appointed when the ship was brought in, kept the keys of the hatches, and two custom-house ofiieers and nine of the original crew remained on board. The property in question was secretly con- veyed from the ship, and found at the master's, or at a place to which *155 he had sent it, and it appeared that a bulk-head had *been broken to get at part of such property. But the learned judge before whom the prisoner was tried, doubted whether this regaining the possession of (f?) Ante, p. 59, ef seq. (e) Paradice's case, cor. Gould, J., Sarum Lent. Ass. 1766. East. T. 1776. 2 East, P. C. c. 16, s. 15, p. 565, and cited by Gould, J., in Wilkins's case, 1 Leach, 523, 524. See Rex v. Metcalf, j»os?, p. 160. (/) Robinson's case, 0. B. 1755. 2 East, P. C. c. 16, s. 15, p. 565. {g) Bass's case, 1 Leach, 251, 524. 2 East, P. C. c. 16, s. 15, p. 566. A tor CHAP. XVI.] HAVING CUSTODY AS SERVANTS. 155 what had behjnged to the master's owners, and had been entrusted to his care, amounted to a larceny, and saved the point. And ultimately the prisoner was recommended for a pardon. (/t) In a case where the prisoner had been convicted for stealing forty Ppcars's bushels of oats, a question whether the facts amounted to felony, was *^!"j!|^'c.,(.' reserved for the opinion of the judges. The prosecutors, who were corn- having factors, had purchased a cargo of oats on board a ship, lying in the river f'"'''''^'^*^?'** r , , . 1 1 ■ 1 • • cargo of Thames ; and they sent the prisoner, who was employed in their service oats oa as a lighterman, with their barge, to one Wilson, a corn-meter, for as ^^>-yd a much oats, in loose bulk, as the barge would carry. The prisoner pro- his servant cecdcd to the ship, and received from Wilson two hundred and twenty witli his quarters of oats in loose bulk, and five quarters in sacks. The five ^^^^^ ^J^l' quarters were put into sacks by order of the prisoner; and were after- of tho oau wards embezzled by him. The question submitted to the judges was, j" '^?^°nd whether this was felony, as the oats had never been in the possession the sevaut of the prosecutors: or whether it was not like the case of a servant, "'"''^'■'^'l ... „ ,. i-/>i- 1 ^ ^• some of receiving charge of, or buying, a thing tor his master, and never dcliv- tijem to bo cring it. And the judges held that it was larceny in the prisoner ; and l>"t into a taking from the actual possession of the owner, as much as if the oats ^yhich be Lad been in his granary. (t) aftLrwanis The following is a case of a similar nature. The prisoner was indicted l^l^'^^lg ' (as in the former case) upon the 24 Geo. 2, c. 45, for stealing five quar-hoKlcn to ters of oats from a v(?sscl on the navigable river Thames. The prose- ^•"' larceny, cutors, in whom the property was laid, were cornfactors j and the pris- Abrahat'a oner was their servant; and had been employed by them many years ^'^^•^- '''''^ in superintending the unloading of their corn vessels. The prosecutors ij^ing c^ru. had purchased two hundred and forty quarters of oats, on board a fn^-tors, pur- Dutch vessel, lying in the river Thames; and while the corn-meters ^^1^^"^^ were in the act of unloading the oats from the Dutch vessel into the board a prosecutor's barge, the prisoner, with another person, came alongside in ""^^^l^u ■ a boat, handed ten empty sacks on board the Dutch vessel, and desired barge to re- that the sacks might be filled with oats, and tied, as they were going to v'^V."'.'' !" be put into an up-country lug-boat. He also desired that the account their'ser- of the oats, put into the sacks, might be carried to the score, and no vant, who separate account bo made of them. The whole of the two hundred and played by forty quarters of oats, excepting the five quarters put into the sacks by Ukmu to the prisoner's desire, were loaded, in loose bulk, into the prosecutor's t",^d"he'de- barge. After the sacks were filled, a person, by the prisoner's direction, livery, sup took them away from the vessel to a place where they were delivered ""t'"f' =^ to the person who purchased them of the prisoner. The prisoner had the rest, never been employed *by the prosecutors to sell corn for them; nor was ^'^'1^°° he authorized so to do. Upon these facts the jury found the prisoner ^ guilty; and, the case being saved for the opinion of the judges, they vessel, and were of opinion that the conviction was right. (/i.-) It is observed that in embezzled (h) Rex V. Vanmuyer, cor. chambrc, J., and before the judsycs in Mich. T. 1800, MS. B.iyley, J., and Russ. & Uy. 118. In M.S. Baylcy, J., it is observed that there was no evidence lo show that tlic master took the property for himxcif in opposition to the intention of his owners ; and that most of the judges seemed to think it would have been larceny if he had, and contra if he had not. (i) Spears's case, Kingston Spring Ass. ITOS. 2 Leach, 825. 2 East, P. C. c. 16, s. Iti, p. 5G3. The ground of the determination mentioned by Heath, J., in Walsh's case, 4 Taunt. 276, was that the corn was in the prosecutors barge, and it was a taking from the master's possession as much as if it had been taken from the master's granary. {k) Abrahat's case, Surrey Spring Ass. 1708. 2 Leach, 824. 2 East, P. C. c. 10, s. 10, p. 569. Although it is not expressly so stated in the reports, yet it is clearly to be inferred 156 OP LARCENY BY SERVANTS AND OTHERS [BOOK IV. it ; and tliis casc there appears to have been a tort committed by the servant in '-^ T^b'^f '^" ^^'^ ^'^*T ^^^ 0^ ^^^ taking : that the property of his masters in the corn ceuy. was complete before the delivery to him ; and that, after the purchase of it in the vessel, they had a lawful and exclusive possession of it as against all the world, but the owner of the vessel. (?) Where property which the prosecutors had bought was weighed out in the presence of their clerk, and delivered to their carter's servant to cart, who let other persons take away the cart, and dispose of the pro- perty for his benefit jointly with that of the other persons, the carter's servant, as well as the other persons, was held to be guilty of larceny at common law. [Upon an indictment for larceny of barilla, laid in one count as the property of J. Bryant, in another as that of the pro- secutors, it appeared that] the prosecutors contracted for some barilla lying at the London docks ; their clerk went to see it weighed, and after having been weighed in his presence, it was delivered to one of the prisoners, Harding, a carman's man, to cart, [in the cart of Bryant, who was his master.] By contrivance between Harding and the other prisoners, he left the cart on his way to the prosecutors, and the others drove it away and disposed of the barilla. The learned judge told the jury that if Harding was to receive any benefit from the disposition, he was equally guilty with the other prisoners ; and the jury found all the prisoners guilty ; and, upon the point being saved, whether as the barilla was delivered to Harding to cart, the taking amounted to a lar- ceny, the judges held that it did, [whether the goods were considered as the property of the prosecutors or of Bryant.] (?Ji) Money in So if money has been in the possession of the master by the hands of possession ^^^ ^^ j^j^ clerks, and another of his clerks receives it from such clerk 01 the mas- ... ter by the and embezzles it, this is larceny. The prisoner was a clerk in the em- hands of a piQy of A., and received 3/. of A.'s money from another clerk, that he might pay for inserting an advertisement, &c. He paid 10s. and charged A. 20s., fraudulently keeping back the difference; and, upon a casc reserved, it was held that this was not embezzlement, because A. had had possession of the money by the hands of the other clerk. (») Larceny of It is larceny if a person, hired for the special purpose of driving sheep by a gljeep to a fair, convert them to his own use ; having an intention of hired to doing SO at the time of receiving them from the owner. The prosecu- drive them tor saw the prisoner at Bristol fair on a Thursday, and hired him to place, and ^Irivc fifty sheep for him to Bradford fair, and he was to meet the pro- *157 secutor on the following Sundai/ evening, with the sheep, at the *turn- intendingto pike-gate nearest to Bradford. The prisoner had no authority to sell them to his ^^^^ sheep ', he was merely to drive them to Bradford, and for doing so own nse at to receive 2.S. Qd. per day. He did not come to the turnpike-gate on ^^^ f 'ed ^^ *^^° Sunday, nor to Bradford fair, which was held the following day. them from The prosecutor afterwards found forty of his sheep in a field at a place the owner, quite in an opposite direction to Bradford; and it appeared that the prisoner had sold the remaining ten of the fifty on the same morning on that the sacks of oats were not put into the prosecutor's barge, and the marginal note in Leach shows that tliis was the case. C. S. G. (l) 2 East, P. C. 0. 16, s. 16, p. 570. (m) Rex V. Harding and others, tried before Lawrence, J., and considered by the judges, Hil. T. 1807, MS. Bayley, J., and Russ. & Ry. 125. I have inserted the words between brackets from Russ. & Ry., as they seem to be important to be added. C. S. G. («) Rex V. Murray,^ R. & M. 0. C. R. 276. 5 C. & P. 145. Frffo, it was larceny. C. S. G. » Eng. Com. Law Reps. xxiv. 246. CHAP. XVI.] HAVING CUSTODY AS SERVANTS. 157 which he had received from the prosecutor, and had never gone at all towards Bradford. lie never was a servant of the prosecutor, but had occasionally been employed to drive sheep for him. Though he had no authority to sell, he represented to the person who purchased the ten sheep of him, that he had such authority, and that he had frequently sold cattle for the prosecutor, and that he had sold thirty ewes for him that morning. Upon this evidence the jury found the prisoner guilty, and in answer to a question put by the learned judge, they said they were of opinion that the prisoner, at the time he received the sheep, in- tended to convert them to his own use, and not to drive them to Brad- ford. The prisoner had no counsel; but a doubt occurred to the learned judge whether, as the delivery to the prisoner was not at his desire, or at his request, he being hired by the owner to take charge of them for a special purpose, his not carrying that purpose into execution, but con- verting them to his own use, and intending so to do, (as found by the jury) at the moment of receiving them from the owner, amounted to felony : and ho therefore respited the sentence, in order to take the opinion of the judges upon the point. After considering the case, the judges were unanimously of opinion that the conviction was right. (o) So if a person is hired by the day to drive cattle to a particular place, If a person and has no authority to sell them, if he sell them, he is guilty of lar-'j'^*''* ^° ceny, although at the time he took them into his possession he had notoaparTicn- intention to steal them, but such intention came into his mind afterwards, ^'^y P^^^*^ Upon an indictment for stealing 118 sheep, it appeared that the prose- them to 111.1 cutor had employed the prisoner in his service as a drover off and on for p'"'" "se, it nearly five years, but not as a regular servant. He was a general 1^]^^^^"",^^, drover, and agreed with the prosecutor for three shillings a day. The had no in- prosecutor gave the prisoner orders and money to bring 119 sheep from V'^'.p. *** Grantham to Smithfield market. The prisoner had no authority from they were the prosecutor to sell the sheep. When the prosecutor came to Smith- ^''^'V®'"^'^ field he found 118 of his sheep in the possession of different salesmen, into whose hands they had been put by one Shelton, who had purchased them of the prisoner, who said they were his own. The jury found that the prisoner did not intend to steal the sheep at the time he took them into his possession. And, upon a case reserved, the judges were unanimously of opinion that as the owner parted with the custody only, and not with the possession, the prisoner's possession was the owner's, and that the conviction was therefore right, (p) And a similar decision was come to where the prisoner was hired to take a heifer to a particular place for a certain sum, although he was not hired by the day, or for any particular time. Upon an indictment for stealing a heifer, it *ap- *158 peared that the prosecutor hired the prisoner to take a heifer from York to Kirby Misterton ; the prisoner was to receive two shillings for tak- ing the heifer the same day to Spittle Beck, ten miles from York, which was paid when he took the heifer in charge, and he was to receive two shillings more for taking her to Kirby Misterton, where the prosecutor lived, the next morning. The prisoner having received the heifer, soon after and without authority sold the heifer as his own, and embezzled the proceeds. The jury negatived the existence of any fraudulent in- tention previous to the delivery of (he heifer to the prisoner, but found (o) Hex V. Stock, cor. Park, J., Taunton Lent Ass. 1825, and East. T. 1825. R. k M. C. C. R. 87. {p) Rex V. M'Namee, R. & M. C. C. R. 3G8. 158 OF LARCENY BY SERVANTS AND OTHERS [bOOK IV. bim guilty : and, upon a case reserved, the judges held the conviction right, the possession of the prisoner being that of a servant only.(g) The priso- But in these cases the prisoner must dispose of the property while he ni r must Yias it in his possession, for if he deliver it to another person, who holds dispose of ... , '^ , ' . . , , , , *, / - the proper- it With the owner s consent, it is not larceny although the prisoner atter- ty while in ^yards sell it, and dispose of the money to his own use. Upon an indict- siuii. ^°^' mcnt for stealing a pig, it appeared that the prosecutor had employed the prisoner on the 18th of December, to drive six pigs from Cardiff to Usk fair on the 20th, and paid him six shillings for so doing j the pri- soner had never before been employed by the prosecutor, and had no authority to sell any of the pigs. On the 19th of December the prisoner left one of the pigs in his way at Mr. Matthews's, of Coedkernew, to be kept till the night of the 20th, saying it was too tired to walk any fur- ther. On the 20th the prisoner met the prosecutor at Usk fair with the other five pigs, and told him that he had left the pig with Matthews because it was tired: the prosecutor then desired him to call at Mat- thews', and ask him to keep the pig for him till the Saturday following, and he would pay him for the keep. The prisoner called at Matthews's on the 21st, but instead of asking him to keep the pig for the prosecu- tor, he sold it to him for a guinea; and on the Thursday following told the prosecutor he had seen the pig at Matthews's, and that he would keep it till the Saturday; and it was held that the prisoner was not guilty of larceny, on the ground that the prosecutor had consented to Matthews being the keeper of the pig, and therefore his custody was the custody of the prosecutor. (?•) Tho dis- The correct distinction in cases of this kind appears to be, that if the tlT Kn/^' o^^^'' parts with the custody only and not with the possession, and the owner parts prisoner converts the chattel to his own use, it is larceny, although he merely with [jm] ^q felonious intent at the time he received it; but if the owner and not parts not only with the custody, but also with the possession of the with the chattel, and the prisoner converts it to his own use, it will not be larceny i'^*^^g^g^^!.'^°ll unless the prisoner had a felonious intent at the time he received the be commit- chattel. Thus where a person sent some pigs to a lady to be looked at, vertine*'the ^'^^ *'^^ prisoner sold the pigs and did not take them to the lady, we have chattel, seen that the first question left to the jury was, whether the prisoner scfKsif he j^jj^j ^ felonious intent from the commencement of the transaction : the with the second, whether he received the pigs as bailee to deal with them, or only custody ag a servant having the custody of them, and whose duty it was to bring sion. them back. If the prosecutor *meant the prisoner to leave the pigs, *j^g and bring back the money or make a bargain for the sale of them, then he would be in the situation of a bailee, and not guilty of larceny ; but if they were delivered to the prisoner simply that he should show them to the lady, and bring them back bodily, then he had only the custody and not the possession, and was guilty of larceny. (s) •^^'^ P^^^°° But if a person employed to drive cattle, has not only the custody of to drive them, but also the possession, and he disposes 'of them to his own use, cattle has \q jg not guilty of larceny. If, therefore, a person be not merely em- the custody ployed to drive cattle, but has also authority to sell them, he will not {q) Reg. V. Jackson, 2 Moo. C. C. R. 32. (r) Reg. V. Charles Jones,^ Monmouth Spring Ass. 1842, Cresswcll, J., MSS. S. 0. 1 C. & Mars. 611. C. S. G. {si) Reg. V. Harvey,'' 9 C. & P. 353. See this case more fully stated, ante^ p. 23. » Eng. Com. Law Reps. xli. 332. »> lb. xxxviii. 150. CHAP. XVI.] HAVING CUSTODY AS SERVANTS. 159 be guilty of larceny, although he sell them auJ apply the money to his Viutthe pos- owu use. Upon an indictment for stealing six oxen, it appeared that jgmjj ' ^[( the prosecutor had employed the prisoner once or twice as a drover, and of larceny if that he put eight oxen into the hands of the prisoner to drive to Lon- Jj^^j^^^^^^^J^ don ; the prosecutor's directions to the prisoner were, if he could sell Lis own them on the road he might, and those he did not sell on the road he "^*'- was to take to the prosecutor's salesman in Smithfield, for him to sell for the prosecutor there : the prisoner was at liberty to drive other cattle as well as the prosecutor's ou this occasion ; there is a regular charge for drovers, so much a head ; so much for cattle driven and so much for cattle sold. The prisoner sold two of the oxen in his way to London, and took the other six to Smithfield, where he sold them : the money was paid into a bank in Smithfield for the prisoner, and he re- ceived it there. A witness stated that the prisoner was a salesman as well as a drover; and the prosecutor's salesman proved that he never received the beasts. That when a person was employed to bring beasts to him, he sometimes deposited them at Islington at the layers at the Goose yard, or somewhere. That it was the duty of the drover to deli- ver them to the salesman's drover in the evening, and next morning to come and give information, and see that he had them; that it was no part of his duty to sell them in Smithfield. The prisoner had brought beasts from the prosecutor before, and delivered them to the salesman's drover. It was submitted that there was no felonious taking in the first instance ; that the prisoner was not the servant of the prosecutor at all ; and that the prosecutor had parted with the right of possession as well as the custody of the cattle by giving the prisoner the right of selling them, if he pleased. It was answered that although the original own- ership of the prisoner was a lawful one, yet that ownership ended as soon as he reached the layers at Islington, and that his driving them beyond that place was exceeding his commission, and such an illegal assumption of the property as would support the charge of felony. The prisoner was also guilty in another view of the case, as the servant of the prosecutor, having after his arrival in London only the custody, and not the property of the cattle, and having therefore no right to dispose of them. But, it was held that there was no proof that the prisoner was the servant of the prosecutor, and that there was no felonious taking in the first instance, as the prosecutor had given the prisoner a lawful ownership for a particular purpose. (Q (t) Reg. V. Goodbody,^ 8 C. & P. GG5, Littlodalc, J., and Parke, B., who observed, " If the case hatl rested on the question of whether the prisoner was the servant of the prosecutor in the lirst instance, I should have reserved it for the further consideration of the judges ; as I am of opinion that a man cannot be the servant of several persons at the same time, but is rather in the character of an agent. There is one case in whicli it was held that a man may be the servant of several at one time, but I wish to have that question further considered by the judges." In a note the reporters say, " We presume his lordship referred to the case of Rex v. Carr, Russ. & Ry. IdS, post, p. 170. If the prisoner had merely been employed by the jirosecutor to drive the oxen to London, instead of having tlie authority to dispose of them by sale on the road, the question mentioned by Mr. Baron I'arke would have arisen in the case, viz., whether the fact of his being at liberty in the regular exercise of his business, to drive for other graziers as well as the prosecutor, would not place him rather in the character of an agent than a servant. But as the delivery of the oxen in the first in- stance was accompanied liy apower of sale and was made to the prisoner to a certain extent, in the character of a salesman, which business, it appeared from the evidence that he carried on, the judges were both of opinion that he was not a servant, so as to make him respon- sible in a criminal point of view, but that his conduct amounted only to a breach of trust. » Eng. Com. Law Reps, xxxiv. 575. 159 OF LARCENY BY SERVANTS AND OTHERS [bOOK IV. Where on an indictment for stealing a waistcoat it appeared that the prosecutor gave the prisoner the waistcoat to take to Rose to be washed, and the prisoner took it to Piose, at the same time telling her it was his own, and she washed it and delivered it to the prisoner, who disposed of it ; Erskine, J., held that the prisoner's getting back the waistcoat from Rose was no larceny, because he delivered it to her as his own ; and he must, therefore, be taken to have converted it to his own use before he delivered it to her. But that it must be left to the jury to say whether the prisoner, at the time when he received the waistcoat from the prosecutor, had an intention of stealing it • for, if at that time he had not an intention of stealing it, he was entitled to be acquitted. ("Z^) It may, perhaps, admit of some doubt, whether the prisoner was not guilty of larceny in delivering the waistcoat to Rose as his property. lie was merely entrusted with the custody of the waistcoat to carry to Rose, and not with the possession, and if he had given the waistcoat to any other person than Rose, as his property, there seems no reason to doubt that that would have been a larceny, and the delivery to Rose being equally at variance with the purpose for which the waiscoat was delivered to him, there seems no reason why such a delivery should not be a larceny. If he had sold it to Rose it would seem clearly to be a larceny, and delivering it as his own was equally a conversion to bis own use. See the next case. C. S. Gr. *160 *A servant going off with money, given to him by his master to carry Lavender's jq another, and applying it to his own use, has been holden guilty of servant larceny. The master of the prisoner delivered to him a sum of money going off to carry to a person of the name of Flawn, and to leave it with Flawn, wiiic™his^^ who had agreed to give the master of the prisoner bills for the money master had in the course of a few days. The prisoner did not carry the money to fo^cMrvTo F^'^^^j ^s he was directed, but went away with it, and, with part of it, another, purchased a watch and some other articles, the other part remaining in and apply- i^jg possession whcn he was apprehended. The jury having found the own use, is prisoner guilty, sentence was respited, in order to take the opinion of guilty of tjjQ judges, whether this was felony, or only a breach of trust; and all the judges held that it was felony. (m) So where the prisoner, who was occasionally employed by the prose- cutors as a clerk, having received from them a check on their bankers, payable to a creditor with directions to deliver it to the creditor, appro- priated it to his own use, it was held to be larceny. (^^i) This decision, tliougli questioned by some at the moment, appears to be quite consistent -with the modern doctrine upon the subject. It was said, " If a man sends his servant with his horse from the country to London, and directs him to sell it if he can upon the road, but if he cannot to leave it at a particular place in London, and the servant instead of doing either, sells the horse in London and absconds with the money, is he not guilty of larceny ?" The answer is undoubtedly " Yes;" but the distinction is, that in the case supposed the re- lation of master and servant existed at the time when the horse was delivered, whereas, in the present case there was nothing else to create that relation but the fact of the delivery, accompanied by a power of sale. And with respect to the argument used by the counsel for the prosecution, that it was larceny in the prisoner to drive the cattle beyond the place at which he ought to have left them, after the authority to sell was at an end ; whatever might have bceu the case formerly on the subject, such is not the state of the law now." Rex. V. Banks, Russ. & Ry. 441, ante^ p. 57. {tt\ Reg. V. Evans, 1 C. & Mars. 632. (m) Lavender's case, Huntingdon Lent Ass. 1793, twice considered by the judges, East. T. I'ZGS, and Trin. T. 1*793. In this case all the judges also held that the last point in Watson's case, 2 East, P. C. p. 562, was not law. [v) Rex V. Metcalf, R. & M. C. 0. R. 433, ante, p. 34, and sec Reg. v. Heath, 2 Moo. C. C. R. 33, ibid., and Paradice's case, ante, p. 154. CHAP. XVI.] HAVING CUSTODY AS SERVANTS. 160 So where on an indictment for stealing a sliilling, it appeared that the prisoner, who was the servant of the prosecutor, was ordered by him to go for twelve cwt. of coals ; and that the prisoner received from the daughter of the prosecutor six shillings, which six shillings she had received from her father to give to the prisoner to pay for the coals ; and that the prisoner, instead of getting twelve cwt. of coals, got only nine cwt., the price of which was o.s. 3(7., and gave 4s. to pay for the coals, and received 9(7. in change; and on his return he gave the pro- secutor's daughter Is., and made a false statement as to the quantity of coals he had bought; Patteson, J., held that the prisoner *ought to *1G1 have returned to his master any money that was left, and if, instead of doing so he appropriated it to his own use, he was guilty of lar- ceny. («•) Where the prisoner was indicted for stealing a sovereign, and it ap- peared that the prosecutor engaged the prisoner to take a canal boat on a voyage from Stourbridge to Ellesmere Port, and paid the prisoner 5/. for wages in advance and for the keep of the towing-horse, and also a separate sum of three sovereigns to pay tonnage dues on the canal; and the prisoner had paid tonnage dues which amounted to rather under 11., and had appropriated the remaining sovereign to his own use ; and it was objected that this was a mere breach of contract, and that the relation of master and servant did not exist. Patteson, J., said, "Tak- ing that to be so, it does not appear to me to be material to the case. The prosecutor distinctly states that he gave this man three sovereigns to pay the tonnage dues, and it appears that he has made away with one of the sovereigns. To constitute a larceny in this case, there is no occasion to show that the relation of master and servant existed. If I give a man money to apply to a particular purpose, and he appropriates it to another purpose, with a felonious intent, he is guilty of larceny." " If a man were to employ another to go somewhere with his horse for a certain price, that other is for that purpose his servant ; but if in addition to this he gives him a distinct and separate sum of money to be disbursed in a particular way, and if, instead of so disbursing it, he appropriates it to his own use, that is a felony."(?/;it') A servant In a case where the prisoner was indicted for stealing ten guineas, it obtained 11 1 1 -1 , f ,^ I 1 t'^'i guineas appeared that she was the menial servant or the prosecutor, wlio was af,.„„iijcr manufacturer, and frequently in want of silver to pay his workmen ; mistress, that she went to the wife of the prosecutor, and told her that she was pretence acquainted with a person who could give her ten guineas worth of silver, that sbo upon which the wife of the prosecutor gave her ten guineas for the ,^^^^^^ y^\^Q purpose of getting them changed into silver by the person she had men- would give tioued, when, instead of netting the guineas chanojed, she immediately ^''^'"'^ , ' • 1 1 1 ° ° 1 -i ■ ^ 1 1 1 t'»^''" '■ ^^^ ran away with them, and never returned ; and it also appeared that licr then run clothes had been previously taken away. Upon this evidence she was '^"'•■'y ^'''^^'' found guilty of larceny. (x) larceny. («') Reg. r. Beavau,'' Salop Sprinj? Ass. 1842. S. C, 1 C. & Mars. 595. The indictment, it mtist be observed, was for stculing the shilling only, not the change, and the ruling of the very learned judge of course applies only to the shilling. C. S. G. (ww) Reg. V. Goode,* 1 C. & Mars. 582. (x) Rex V. Atkinson, 1 Leach, 302, 303, note (or). There is subjoined, iS'rr/ yj/rrrr, if the case was not saved ? The doubt in this case would be whether the property in the guineas was not so parted with by the wife of the prosecutor, as to exclude the idea of felony, {ante, J). 24). But it sliould seem that it might be well contended that the property in the guineas » ling. Com. Law Reps. xli. 324. <> Ibid. 31G. 161 OF LARCENY BY SERVANTS AND OTHERS [BOOK IV. Chipchase's It hiis also beeu holden to be larceny for the confidential clerk of a case. A jj^gi-diant to take a bill of exchange, unindorsed, from its proper repo- clerk who . , ^ -i • i i i had the sitory, discount it, and convert the proceeds to his own use, though he manage- j^.^^j j|jg general management of his master's cash concerns, and autho- tho cash rity to get his bills discounted. The indictment against the prisoner concerns of^^s for stealing a bill of exchange for one hundred and twenty-two cu^OT^^and pounds twelve shillings, the property of the prosecutors, Messrs. Burkit had autho- and Fothergil. Upon the evidence it appeared that the prisoner was thTi/bUls* clerk to the prosecutors, and had the sole management of their cash discounted concerns J that he received bills and money remitted to them, took bills as the occa-j. ^^ discounted whenever he wanted cash, made payments for freight sion requir- . i i i i i i -.i u ed, dis- and other things of a similar nature, and settled the balance with the counted a prosecutors at the end of every week. On the 14th September, 1795, bill, and ab--', , .„ . . •, i . .1 . i .» / 1. sconded the bill in question was remitted to the prosecutors, by the post, when •with the otie of them opened the letter, and gave the bill, which was not due till amfit^was tlie 17th September, to a clerk to get it accepted, which the clerk ac- holden to cordingly did, and then laid it amongst other bills on the desk of the be larceny. p^^gg^^j.^j,g^ q^ ^-^^ 26th September, the prisoner carried the bill in question, together with another bill, to the prosecutors' bankers, when the bankers' clerk, observing that neither of them were indorsed by the prosecutors, asked him whether they were to be entered short or dis- counted, upon which he said that he wanted small notes and money for them, and that the money must be full weight and good, as it was for the particular use of the prosecutors. On the same day he absconded with the moneys he had so received, and was taken, under a feigned name, from on board a ship at Falmouth. It was contended, on behalf of the prisoner, that the bill having come legally into his possession like any other bill of the prosecutors' over which he had a disposing power, he had a right to receive the money for it, though not to con- vert the money, when received, to his own use ; and that, the first tak- *162 ing of the bill not being tortious, his receiving *the money for it at the bankers, and going away with the money, was a mere breach of trust, and no felony. But Heath, J., was clearly of opinion that this was felony, the bill having been once decidedly in the possession of the prosecutors, by the clerk, who got it accepted, putting it amongst the other bills on the prosecutors' desk, and the prisoner having feloniously taken it away from that possession. (j/) Hammon's j^ gj^gg ^f modern occurrence requires to be noticed in the same class, banker's The prisoner was indicted for stealing two bank-notes of fifty pounds clerk false- each, in the dwelling-house of the prosecutors. The facts given in a customer evidence were, in substance, that the prisoner was a clerk in the bank- of the house ing-housc of the prosecutors, and was intimate with a gentleman named paW in ^ Vale, whom he had induced to open his cash account at the house. On money to the 19th December, 1811, he made a fictitious entry in the banking-, his credit, ^^^-^ q£ jj^,^ Vale, to his credit, for two hundred pounds, which sum he by induced told Mr. Vale that he had that morning paid in on Mr. Vale's account, the custo- Qq the belief that this false entry and false assertion were true, Mr. him a check Vale, on the 10th January, 1812, gave him a check on the prosecutors, was not parted with to the prisoner ; and that she had only the possession of them upon a bare charge, or special trust, to get them changed. Ante, p. 21, et seq. {y) Chipchase's case, cor. Heath, J., 0. B. 1795. 2 Leach, 699. 2 East, P. C. c. 16, s. 15, p. 567. The prisoner was accordingly convicted, and sentenced to be transported for seven years. CHAP. XVI.] HAVING CUSTODY AS SERVANTS. 162 dated, by the prisoner's desire, on the day before, for one hundred f"r the pounds, for payment of which the prisoner, under colour of serving at u,'"i'""ceiv- the counter, took out of the prosecutor's bank-note drawer, in the shop, d ilio mo- the two notes stated in the indictment, dcpositiu"; the check amontr; the '"'yjand , , . . , ° ° then to pre- other paid checks of the day, and making in the waste book an entry of vuut a dis- such payment. By this contrivance and other previous practice of the c"^'^''y. , like kind, Mr. Vale's real balance was turned against him to the amount tious cn- of several hundred pounds; and, in order to prevent the discovery •'''^^s '" the which must have immediately ensued if the accounts had been suffered xhis was to continue in this state, the prisoner made other false entries, to the holJen to credit of Mr. Vale, in the ledger of the house. Upon these facts the J',^J"5^*^J'JJ^^' jury found the prisoner guilty, (2) and they also found that at the time being he made the false entries in the ledger, and in the customer's book, he •''■"^"■" ^7 tno custiO- did it fraudulently, with the design of enabling himself to get the mer not to money of the prosecutors. The question whether the offence was a l'l*^^'ig" his felony, or amounted only to a fraud, was afterwards submitted to the ^,J. ^^ jr^,^ ' consideration of the judges, and eleven of them who met held that the <'\'t mo»ey offence was felony, that the taking was felonious, and that the deposit- j^^^ \^ jj.^^^ ing the check was not intended to pledge Vale's security, but to prevent out the detection, as Vale did not give the check to pledge his own credit, or to "■!^^g^Z !j'^„ enable the prisoner to get money of his. Vale's but to enable the pri- tended by soner to get away (as he supposed) money of his own. And Grose, J., *'"' ^^^'r in delivering the opiniun of the judges, said, '' The true meaning of lar- been paid ceny is the felonious taking the property of another without his consent, i" ^y h"'^- and against his will, with intent to convert it to the use of the takcr.(a) The facts of the case answer every part of this definition. The taking of the property is clear, and that it was taken against the will of the owner, and with a felonious intent, is equally *'clear, from circumstance *16b of the prisoner's having fraudulently made these false entries with a view to conceal the means he had artfully made use of to obtain it."(i) By the cases which have been now cited, the maxim of the common In'^o forr- law, already mentioned, relating to the fraudulent conversion by a scr- the proper- vent to his own use of the goods of his master, appears to be sufficiently ty was ro- explained and established. But it should be observed that in all these tjj^ posses- cases it was considered that the property stolen was sufficiently received ■■'ion of the into the possession of the master before the taking by the servant. And I^Jl^^t^g '^' this leads to the consideration of a material distinction respecting the tuking. possession of the master, namely, that the property will not be consid-.?^"!^^"^'^''" cred as sufficiently received into his possession, where it has merely eicntly re- been delivered to the servant for the master's use. Upon which subject (^e'ved into it is well laid down that "if the servant have done no act to determine ter-g posses- his original, lawful, and exclusive possession, as by depositing the goods sion, where in his master's house, or the like, although to many purposes, and as j ^^^^^^ j^._" against third persons, this is in law a receipt of the goods by the mas- livered to ter, yet it has been ruled otherwise in respect of the servant himself, in |||r,}^g'^a°! a charge of larceny at common law, in converting such goods to his own tir'^ use ; use."(c') The ground of which doctrine appears to be, that in such •!"^^ f^*^''*'' \/ , . , . . , *^ „ . , loroifaser. cases there can be no tortious taking in the first instance, and conse- yant pur- (z) The jury saiil that as the prisoner had the check he had a right to pay himself, hnt Bayley, J., before whom the prisoner was tried, told him that this was matter of law. Their opinion, however, was stated in the case, MS. Bayley, J. (a) Ante, p. 2. (6) Hammon's case, 0. B., Feb. 1811, and jMay 1812. 2 Leach, 108.3. S. C. 4 Taunt. 304, MS. Bayley, J., and Russ. & Ry. 221. Lawrence, J., who was absent, doubted. (c) 2 East, P. C. c. 16, s. 16, p. 5 08. 163 OF LARCENY BY SERVANTS AND OTHERS [BOOK IV. ' loins such quently no trespass : and we have seen that without a trespass there can i:S£e-bcnolarccny.(.7)_ ny. Upon this principle, in a case prior to the 15 Geo. 2, c. 13, s. 12,(e) Waito's where it appeared upon an indictment for stealing East India bonds, foro'tho 15 *^^ property of the governor and company of the Bank of England, that Geo. 2, c. the bonds in question, having been taken to the bank for the purpose of 23, s. 12, a ijgjjjg deposited there, were not carried to the usual place for such de- the Bank of posits, namely, a chest in the cellar of the bank, but were received by England, to ^]^g prisoner, who was a cashier there, and placed by him in his own bond was desk, it was ruled that the prisoner was not guilty of larceny in after- delivered, wards selling the bonds, and putting the money into his own pocket. ^idltT^of -^^^ *^^ ground of the decision appears to have been, that as the bonds felony in were ncvcr put into the cellar, in the usual course, the governor and •Tt'^v''^"^ company of the bank had no possession of them, but the possession re- own use mained always in the prisoner. (/) before it j^ another case, where the prisoner was indicted for stealing a half- deposited crown and three shillings, the property of his master, the same princi- in the pro- pie was recognized. The master of the prisoner was a confectioner ; and per p ace. ^^^ prisoner was his servant, employed to attend the shop. The master, A servant ' l^^ving some suspicion that the prisoner had occasionally purloined the attending money paid by persons dealing at the shop, procured a customer to rece^ived come there on pretence of buying something, having previously given *164 ^'0 such customer some marked silver of his *own. The customer ac- somo mo- cordingly came to the shop in the absence of the master, and bought ney from a ggme articles of the prisoner, payins for them with the marked silver. customGr > x «/ a which ho' Soon afterwards the master (who was waiting for the purpose) came in did not put and examined the till, in which the prisoner ought to have deposited but pur- 'the silver when it was received; and finding only some of the marked loined it, it silver there, he procured the prisoner to be immediately apprehended not^ to'be'^'^ ^'^^ searched, when the rest of the marked money was found upon him. larceny; The jury found the prisoner guilty; but the point being saved for the th""'"^ consideration of the twelve judges, they were of opinion that the pri- been in the soner was not guilty of larceny, but only a breach of trust ; the money possession jjeyer having been put into the till, and therefore not having been in master. the possession of the master, as against the prisoner. (^) Bazely's Both these cases were much relied upon, in a subsequent case, on case. ^ behalf of the prisoner, a banker's clerk, who was indicted for stealing clerk ^ bank-note of th^ value of one hundred pounds, the property of the entrusted bankers. The evidence was, in substance, that a gentleman, who kept bank'-notes ^^^^ ^^^'^ ^^*^ bankers, sent, by his servant, the one hundred pound and money bank-note in c^uestion, together with twenty-two pounds in other bank- at the notes, and fifteen pounds in money : and that the servant delivered the instead'of whole into the hands of the prisoner. The prisoner, in his capacity of putting a clerk to the bankers, was auiJiorizcd to receive and give a discharge the proper fa''' ''*^ same, and it was his duty to put the money received into a till, drawer, and to place in another drawer the several bank-notes which he might it°to'his^'^ receive during the day, for the purpose of another clerk taking down own use : and entering in a book the particular description of each note. The [d) Ante, p. 5. (c) Pout, Chap. xx. (/) Waite's case, cor. Carter and Dennison, Js., 0. B. 1T43. 1 Leach, 28. 2 East, P. C. c. 16, s. 17, p. 570. Dennison, J., said that, though this might be such a possession in the bark whereon they might maintain a civil action, yet there was a great difference between such a possession and a possession whereon to found a criminal prosecution. (g) Bull's case, cor. Heath, J., 0. B., Jan. 1707 ; Hil. Term, 1797, cited in Bazeley's case, 2 Leach, 841. 2 East, P. C. c. 16, s. 17, p. 572. CHAP. XVI.] HAVING CUSTODY AS SERVANTS. 164 prisoner gave an acknowleclgment to the servant of Laving received the and tbis full sum of one hundred and thirty-seven pounds, and put the money lu^be^o'nw" into the till ; but instead of placing the remaining sum of one hundred a breach of and twenty-two pounds, which he received in bank-notes, into the ^''"^j' ^^'^ drawer, according to his duty, he kept back the one hundred pound ccny ; the note in question, and only delivered over those to the amount of twenty- "°^? "^^^"^ two pounds. The jury found the prisoner guilty, subject to the opinion been°fn the of the judges, whether the taking could be considered as felonious, or '^""'^'^'"'s only as a breach of trust ? When the case came to be argued, an ^ jdi. P*^^^®**'""' tional fact was stated and admitted, namely, that the prisoner had given his employers security to account for what he received, and against em- bezzlements. The case was argued at considerable length before nine of the judges, who, at first, entertained some doubt on the case, but ultimately agreed that it was not felony, inasmuch as the note was never in the possession of the bankers, distinct from the possession of the prisoner ; but that it would have been otherwise if the prisoner had deposited it in the drawer, and had taken it afterwards. (/<) In consequence of this decision (of which, however, it should be ob- in conse- served, that it was perfectly in unison with the due administration of '^i"'^"^® <>f criminal justice, in adopting the merciful construction of a doubtful o-oiuo- deci- point of law) it was thought necessary forthwith to make *some provi- *165 sions for the better protection of masters against embezzlement by their sion the sa clerks and servants, many of whom, employed in commercial transac- gs'^^as ° tions, are unavoidably entrusted with the receipt of moneys to a large passed, for amount. The 30 Geo. 3, c. 85, was accordingly passed, and though j;™JJ^*^;j°e that statute is now repealed, the 7 & 8 Geo. 4, c. 29, provides for the iVom tho punishment of such embezzlements, and will be considered in the sue- cm^^ezzle- '■ T , , ments of ceeding chapter. their clerks In order to bring a prisoner within the 7 & 8 Geo. 4, c. 29, s. 46, it"'"^ ^^r- must be proved that he was the servant of the prosecutor. Upon an^"'" indictment charging the prisoner as the servant of the prosecutrix with stealing her purse containing forty sovereigns, it appeared that the pri- soner was the driver of a glass coach, which had been hired by the day by the prosecutrix, and that he stole her purse from the coach; it was held that the relation of mistress and servant did not exist between the prosecutrix and the prisoner, and that he could only be convicted of simply larceny. (Q We have seen that it has been doubted by a very learned judge, whether a person can be the servant of several persons at the same time.(y) It has been doubted whether the 7 & 8 Geo. 4, c. 29, s. 46, applies Seryants of to larceny by a clerk employed in a public office under the crown. ^^*^ crown. The prisoner, who was indicted as a clerk to the queen for stealing her money and also for embezzlement under the 2 Wm. 4, c. 4, was the first clerk to the Collector of Customs at the Port of Falmouth, and as such it was his duty to receive and place in the collector's box each day (h) Bazeley's case, 0. B., 1799. East. T. 1799. 2 Leach, 839. 2 East, P. C. c. 16, s. 17, p. 571. See also Rex v. SuUcns, R. & M. C. C. R. 129, and Rex v. Hawtiu," 7 C. & P. 281, post, p. 181. (i) Rex V. Haydon,b 7 C. & P. 445, Patteson, J., and Gurney, B. See Quannan v. Bur- nett, 6 ^[. & W. 499. (/) Parke, B., in Reg. v. Goodbody,^ 8 C. & P. C65. See tbis case, ante, p. 150, and Rex V. Carr, Russ. & Ry. IQ8, post. » Eng. Com. Law Repa. xxxii. 510. '' lb. 578. •= lb xxxii. 575. 165 OF LAHCEXY BY SERVANTS AND OTHERS [bOOK IV. moneys received in payment of customs; the facts were clear to prove that he had taken money out of the box. The prisoner was appointed by the commissioners of customs under the 3 & 4 Wm. 4, c. 51. It was objected that the 7 & 8 Geo. 4, c. 29, s. 46, did not extend to public servants. Coleridge, J., " The great doubt I have had is, whether or no the 7 & 8 Geo. 4, c. 29, s. 46, was meant to include public servants of the crown such as the prisoner. It would seem intended to protect private dealings of the subjects only against their clerks and servants, and the terms of the 2 Wm. 4, c. 4, seem to confirm this view of it, by specially providing for such a case as this."(7i-) Indict- An indictment which alleges that the prisoner, being the servant of ment. j^g prosecutor, on a certain day and year stole his property is sufficient. An indictment charged that Mary Somerton, on the 1st of March, 1827, "being then and there the servant of J. Hellier" on the same day and year, one ring of the said J. II., did steal ; and it was objected, first, that there was no positive averment that the prisoner was the ser- vant of J. H.; 2dly, that it was not sufficiently -averred that she was his servant at the time she stole the goods ; but it was held, 1st, that " being the servant of J. H.," was a description of the person of M. S., and that that was a sufficient allegation that she bore that character ; 2dly, that reading and understanding the language used in the indict- ment as the rest of mankind would understand the same language, if it *1G6 were used in other instruments, there *could be no doubt that it im- ported that M. S. was the servant of J. H. at the time she stole the property. (?) Punish- It is only necessary further in this place to notice the 7 & 8 Geo. 4, nient of ^^ 29, s. 46, which " for the punishment of depredations committed by servanu ^ clerks and servants, in cases not punishable capitally," enacts, "that if *". any clerk or servant shall steal any chattel, money, or valuable security belonging to or in the possession or power of his master, every such offender, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned for any term not exceeding three years ; and if a male to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment."(m) Principals The 61st section of the act making principals in the second degree, and acces- and accessories before the fact, punishable in the same manner as prin- sories. cipals in the first degree, applies to every felony punishable under the act, as does the provision also by which accessories after the fact (except receivers of stolen property) are made liable to imprisonment for any term not exceeding two years, (n) (k) Reg. V. Lovell, 2 M. & Rob, 236. The prisoner was convicted on the counts for em- bezzlement, so that it became unnecessary to decide this point. (Z) Rex V. Somerton,* 7 B. & C. 463. The indictment was on the 3 Geo. 4, c. 38, s. 2. See Reg. v. Page,'' 9 C. & P. 756, ante, vol. 1, p. 84. (in) As to the present punishment, see note (a), p. 167. (n) See the clause, ante, p. 2, tit. Larceny. » Eng. Com. Law Reps. xiv. 84. ^ lb. xxviii. 322. CHAP. XVII.] OF EMBEZZLEMENT BY CLERKS AND SERVANTS. *167 ^CHAPTER THE SEVENTEENTH. OP EMBEZZLEMENT BY CLKRKS AND SERVANTS. The 7 & 8 Geo. 4, c. 29, s. 47, "for the punislunent of embezzle- 7 & s (3«o. ments committed b)"^ clerks and servants," declares' and enacts, "that if j^jgrUg ,',c any clerk or servant, or any person employed for the purpose or in the servant? capacity of a clerk or servant, shall, by virtue of such eniployiuent, re-'''''''"^'"^ I J ' 11 111 "^''y iiiou' *''^''^" offender, being convicted thereof, shall be liable, at the discretion of the court, to any of the punishments which the court may award, as here- inbefore last mentioned. "(a) The 48th section, "for preventing the difficulties that have been ex- Distinct perienced in the prosecution of the last-mentioned offenders," enacts, j^g'j^^/i^.n^cJfj " that it shall be lawful to charge in the indictment, and proceed against may bo the offender, for any number of distinct acts of embezzlement not ex- fJ^'^'S^'^ !" > J ... the same ui- ceeding three, which may have been committed by him against the same iHctmont. master, within the space of six calendar months from the first to the last As to the of such acts; and in every such indictment, except where the offence '.,„,i p,.oof shall relate to any chattel, it shall be sufficient to allege the embezzle- of tbo pro, incnt to be of money, without specifying any particular coin or valuable [ly^Jej"'" security; and such allegation, so far as regards the description of the property, shall be sustained, if the offender shall be proved to have em- bezzled any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved ; or if he shall be proved to have embezzled any piece of coin or valuable secu- rity, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the party *delivering '^l^^^^ the same, and such part shall have been returned accordingly." These provisions arc substituted for the repealed statute o9 Geo. 8, c. 85, and those contained in the 48th section are intended to remove the very considerable diniculties which so often prevented a prosecution under the repealed statute from being effectual. The full case, upon which the master had ari^ived at the conclusion of his servant's guilt, and determined to prosecute, could hardly ever be laid before the jury, on account of the rule, which forbids evidence to be given of two dis- tinct and independent fL'lonics upon one indictment; it repeatedly oc- curred that the person from whom the prisoner had received the money {a) The punishment for this ofTcnce i.s now regulated by the t & 8 Geo. 4, c. 29, s. 4, ante, p. 128, and s. 4G, anlc, p. IGtJ, and the 1 Vict. c. 90, s. 5, ante, p. 2, and may be transported for not exeecdin;^ fourteen nor less than seven years, or imprisonment not cxx-ocding three years, with or without hard labour, in the common gaol or house of correction, and the otfcndor may be ordered to be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one niontli at a time, and not exceeding three months in the space of one year ; and if a male, may be once, twice, or thrice publicly or privately whipped in addition to such imprisonment. Vol. II.— 12 168 OP EMBEZZLEMENT BY CLERKS AND SERVANTS. [BOOK IV. could not specify the mode of payment ; and it Happened not unfre- quently that the prisoner had received aj piece of coin or a note of a larger amount than the sum which was to be paid on account of his master, and had given change. (^) In the former of these cases the jury often acquitted, from an impression that the prisoner had acted by mistake, and unintentional error, an impression which would have been removed, if the facts upon which the master proceeded could have been fully laid before them; and in the two latter cases the prosecution necessarily failed, as being unsupported by the evidence. It is con- ceived that a better remedy fur these defects would have been applied by making the offence a misdemeanor, as the anomalous averments and evidence introduced, by the 48th section, upon a prosecution iov felony , would have been avoided. This sta- This enactment of the 7 & 8 Geo. 4, c. 29, s. 47, like the repealed *"'°./^ . statute of the 39 Geo. 3, has the eflect it should seem of constituting similar in . . . ' . , , . its effect to the offence described in it a larceny. It specifies what the circumstances f,bo repeal- ^^q which shall be sufficient to constitute such offence a larceny, and cd S till tut G .IS) Geo. 3,' under which circumstances the offender shall be deemed to have fdoni- c- 8r). oudy stolen. First, he must be a clerk or servant; then he must by virtue of his employment receive or take into his possession some chat- tel, money, &c.; and that must be for or in the name or on the account of his master; and he must fraudulently embezzle the same. But pro- bably this statute, like the 39 Geo. 3, would be considered not to apply to cases which amount to larceny at common law.(c) Some of the points decided upon the construction of the repealed statute, may properly be noticed here. Cases de- It was held that a female servant was within that statute, (c?) And culcdnpon ^\^^^ statute was held not to be confined to the clerks and servants of eJ statute, persons in trade, but to extend to the clerks and servants of all persons 39 Geo. 3, whomsoever, if such clerks or servants were employed to receive money, &c. : so that it was decided by the judges, on the point being reserved for their consideration, that a person employed at a yearly salary under the appellation of accoraptant and treasurer to the overseers of Servants a township, and whose duty it was to receive all moneys receivable or act ^° payable by them, was a clerk and servant within that statute, (e) *169 *So where upon an indictment under the 39 Geo. 3, c. 85, for embez- Servants of zleing the moneys of his master, it appeared that the prisoner was hired are whhin ^^ ^ journeyman miller, and not in any respect as a clerk or accountant, the act. or to collcct moneys ; he was, however, in the habit of selling small quantities of meal on his master's account, and of receiving the money for them; no written account was ever kept of such sales and receipts; his habit and duty was to pay over on each successive day what money he had received on the preceding day. It was objected that the prisoner was not a servant within the meaning of the statute. Richards, C. B., " There is nothing at all in the objection. It is by no means a new one ; it has been overruled again and again, and convictions have taken place in much slighter cases than the present. I have no doubt that the statute was intended to comprehend masters and servants of all pos- {b) See Rex v. "Ward, Gow. N. P. R. 168. (») Rex V. Headge, Russ. & Ry. 160. Rex v. Murray, R. & M. C. C. R. 276, j)ost, p. 181. (d) Rex V. Elizabeth Smitli, Hil. T. 1814, MS. Bayley, J. and Russ. & Ry. 267. (e) Rex V. Squire,^ York Spring Ass. 1818, 2 Stark. C. 349, and Russ. & Ry. 349. » Eng. Com. Law Reps. iii. 3T8, OHAP. XVII.] WHAT SERVANTS WITHIN THE ACT. 169 siblc kinds, whether originally connected in any particular character or capacity or not."(/) A clerk of a joint stock banking company is within the statute.(^) If a person is employed as the servant of a corporation, ho is a ser- Servants of vant within the statute, although not duly appointed, nor even ap- ^.^'"f*''''*' pointed at all under the common seal of the corporation. Upon an in- dictment for embezzling the moneys of the guardians of the poor of par- ishes in the town of Shrewsbury, who arc incorporated by statute, written appointments of the prisoners, as steward and clerk to the cor- poration, were produced : they bore date in 1816, and were " for one year next ensuing," and it did not appear that either of them had been re-appointed. It was objected, that although they were servants of the corporation for the first year, yet as they were neither re-api^ointcd un- der the common seal, nor according to the statute, they ceased to be servants of the corporation at the end of the first year; but it was held that it was sufficient; for if a person be employed as servant, he may be guilty of embezzlement, though not duly appointed. (^) And a person A clerk i-iu- employcd upon commission to travel for orders, and to collect debts, P|"y<^^ ^J was held to be a, clerk vfith'm that act, though he was employed by persons was many different houses on each journey, and paid his own expenses outwit"" tli« of his commission each journey, and did not live with any of his em- g[^^*|ffy^ ployers, nor act in any of their counting-houses. f In the case in which this point was decided, it appeared that the prisoner was employed by many houses as a traveller to get orders, and to receive debts, and had a commission on such orders and debts ; and further, that he paid his own expenses, and did not live with any of his employers, or act in any of their counting-houses. Stanley and Co. were amongst his employers. He had embezzled part of the money which he had collected for them, and was indicted under this statute ; and the indictment stated that he was employed by Stanley and Co. in the capacity of a clerk, and by virtue of his said employment received, Sec. The *prisoner having been *170 convicted, a case was reserved, upon Avhich the judges thought the con- viction right. (A) But where a drover and salesman was employed by a farmer to drive Butthcpre- oxen to London, and was at liberty to drive the cattle of other persons, '^'^^^^^ and was to receive so much per head for cattle driven, and so much for been doubt- cattle sold, Mr. Baron Parke said, "I am of opinion that a man cannot °'^' be the servant of several persons at the same time, but is rather in the character of an agent ; there is one case, in which it was held that a (/) Rex V. Barker,* Dow. & R. N. P. R. 19. (/) Reg. v. Atkinsod, siipra, p. 990. (ff) Rex V. Beacall,'' 1 C. & P. 457, Parke, J. A. J. Rex v. Williams, ibid. See Williams f. Stott, 3 Tyrw. C88, where Viiuglian, B., said, " It is singular thut the words ' body cor- porate or politic,' in the 30 Geo. 3, c. 85, should bare been omitted in the existing act ; how- ever, there is no doubt that clerks or servants to such bodies would be held to be included in its general words." If the learned baron had referred to the 7 & 8 Geo. 4, c. 29, s. 14, he would have seen that the Avords of the 7 & 8 Geo. 4^c. 29, do include " bodies corporato as well as individuals." See the section, ante, p. 116. C. S. G. (h) Rex V. Carr, Mich. T. 1811, MS. Bayley, J., and Russ. & Ry. 198, and Rex v. Leach,' 3 Stark. N. P. C. 70. I [A person who is employed to collect bills for the proprietors of a newspaper establish- ment, and converts to his own use the money which he collects for them, is not such an agent or servant as intended by the Revised Statutes, c. 12G, s. 29, of Massachusetts, which prescribe the punishment of embezzlement by agents and servants. Commonwealth v. Lib- bcf/f 10 -Metcalf, 04.] » Eng. Com. Law Reps. xvi. 41G. »> lb. xi. 450. •= lb. xiv. 1G5. 170 OF EMBEZZLEMENTS BY CLERKS. AND SERVANTS. [iiOOK IV. man may be the servant of several at the same time, but I wish to have that que^^tion further considered by the judges. "(;') The servant It has bccn held that a servant in the employ of two partners is the of ®®^^'"^'.^ servant of each, and that if he embezzled the private money of one, he the servant might be charged as the servant of that partner. The prisoner was in- of each dieted as servant of T. R. Bridson, for embezzling his money. T. R. partner. ^^ ■ ^ i t -n-i • i i i • l»nason ana J . Kiugway were partners in trade, and the prisoner was employed by them as their book-keeper, and whilst he was so employed received and embezzled some notes, the private property of Bridson : it was objected that he could not be considered the servant of Bridson, being the servant of Bridson and his partner jointly ; but Bayley, J., lield that he was the servant of both ; and said that it had been decided by the judges that where a traveller is employed by several houses to receive money, he is the individual servant of each.(y) Serrants In another case, it was held that a servant employed to carry out certain^" goods in his employer's barge, to sell them and to bring back the price, portions of came within the statute, by embezzling the money for which the goods ^'^^ P''°^*^. sold, although he was to have a certain part of such money for his pay. sold. ° The prosecutor had a collier, and barges, and employed the prisoner as captain of one of his barges to carry out and sell coals, and his duty was to bring back the money for which the coals sold, but he was en- titled to two-thirds of the difference between such money and the value at the collier, and duties. He received twenty wagon loads to take down the river to the best market, and he sold them at Gainsborough, at eighteen shillings per chaldron, the value, when he received them, having been fourteen shillings the chaldron. He embezzled the money, but it was urged that he was not a servant within the statute, and that he had a joint interest with the prosecutor in the meney he received. A majority of the judges held that he was a servant within the statute, and that so much of what he received as equalled the value at the col- liery, and duties, was received solely for the use of the prosecutor, and that the embezzlement of it was an offence within the statute. (A-^ A clerk Where a clerk to a banking firm was to receive one-third of one of receiving ^]^q partner's profits, being the fifteenth share of the whole profits of of the pro- the house, to which the other partners assented, but they considered the lits of one prisoner not liable to them for losses ; it was held that the prisoner wag not a partner. He was to receive only a sort of per centage, and the_ agreement was assented to by the partners merely as a private agree *171 ii^ent between the one partner and the prisoner. *He was to receive a share of the jjarticulai' profits of the one partner and not of the general profits of the firm, and therefore he might be guilty of embezzling money received on behalf of the firm. (A So where a prisoner was employed by the master of a coal vessel, who sent him with a cargo of coals : and the custom of the trade was for the person who superin- tended the business to receive two-thirds of the freight, and the owner one-third : the prisoner took the whole ; whereupon he was indicted and convicted. It was objected that he and the master were joint pro- I (i) Reg. V. Goodbodj',^ 8 C. & P. CGj, per Parke, B. See this case, ante, p. 159. (/) Pvex V. Leach,rovcr London, and his instructions were that if he could sell them on the road ^.^y ^^ g^n" he might, and those he did not sell on the road he was to take to a salesman in Smithfield, who was to sell them for the grazier ; and the drover sold two of the oxen on the road, and instead of taking the re- mainder to the salesman, drove them into Smithfield, and sold them there, and applied the money which he received for them to his own use, it was held that he was not a servant, and could not, therefore, be convicted of embezzlement. (;.') But where a drover was employed in a single instance to drive a cow Drover em- and calf to a person to whom they were sold, and to bring back the |o°jrivo"i"a money they were sold for, he was held to be a servant within the mean- a single in- ing of the act. Upon an indictment for embezzlement it appeared that st^^nce. a farmer had some beasts in Smithfield, which the prisoner was keeping for him as a drover, and he was employed to drive a cow and a calf to a person to whom they were sold, and bring back IGL He was not in the service of the farmer, but merely the drover; he had, however, been employed by the farmer at different times ; but it was not proved that he had any extra reward beyond what was his due for driving and deli- vering the cattle to the purchaser. Upon a ease reserved the judges present were unanimously of opinion that the prisoner was a servant within the meaning of the act.(»-) *So where it appeared on an indictment for embezzlement that the *17-1: prosecutor employed the prisoner to take some bark to Mr. Morris to be weighed, and he was directed to bring back a written account of the weight, and of the price bark was selling at, and if Mr. Morris offered to pay for the bark the prisoner was to receive the money, and bring it to the prosecutor : the prisoner received Is. Qd. for his day's work ; he had been employed many times before by the prosecutor, but not regu- (m) Rex V. Nettlcton, R. & M. C. C. R. 259. The recorder thought that the prisoner was perfectly free to have refused to receive money Avithout any violation of duty cither to Blades or the committee, and also adverted to their being no remuneration contracted for or expected or promised to the prisoner. (v) Reg. V. Goodbody," 8 C. & P. G05, Littledale, J., and Parke, B. Sec this case at length, ante, p. 159. (w) Rex V. Hughes, R. & M. C. C. R. 370. The recorder thought Rex v. Nettlcton, supra, strongly applied to this case. f * Eng. Com. Law Reps, xxxiv. 575. 174 OF EMBEZZLEMENTS BY CLERKS AND SERVANTS. [bOOK IV. larly ; and on this occasion he was only employed for this one day, and he had never been employed for the purpose of receiving money before. Littledale, J., held that this case was distinguishable from Rex V. K€ttleton,{x\ as in that case the prisoner was not a servant at all, but only employed on a single occasion to receive money, (y) A clorktoa A clerk of a savings' bank may properly be described as clerk to the savings trustees, although he was elected by the managers. Upon an indictment bank mav ^ ^ • ^ • ^ ^ ^ • properiy'befor embezzlement, stating the prisoner to be clerk m some counts to all .jc?cnbcd \^Q trustees by name, and in others to one of them by name " and its the ciorlc . . of the trus- others," it appeared that the prisoner was the clerk to a savings' bank, tees, jjy the regulations of which the institution was to be conducted by eW'ted by managers, a treasurer, and clerk. The managers were to include patrons, the niana- presidents, and trustees ; the clerk, with one of the managers was to ^®"" attend to receive deposits and conduct the business of the institution, and in case the manager of the day was unavoidably prevented from attending, and unable to find a substitute, the clerk might act for him, upon the said manager's responsibility to the institution. There were about 200 managers over and above the trustees, patrons, and presidents, who were managers ex officio. The clerk was elected every year by ballot at a meeting of the managers, at which meeting, if no trustees attended, the appointment by the other managers would be good ; or if no managers attended the appointment by the trustees would be equally good. The manager of the day was absent at the moment a depositor entered the bank and paid the money, which the prisoner appropriated to his own use. It was objected, 1st, that the prisoner was not clerk to the trustees, but to the managers : 2ndly, if the word " others" might include the managers, that the money was not received to their use, but to the use of the trustees, in whom alone it is vested by the 9 Geo. 4, c. 92, s. 8 ; and lastly, that the clerk had no authority to receive the money, for he and a manager ought to have received it together. But it was held, upon a case reserved, that the prisoner was properly de- scribed as clerk to the trustees, and that the conviction was good.(5;) A member A member of and secretary to a society may be stated to be the clerk 01 a. society ^^^^ servant to the trustees, and the money may be stated to be their mny be , */ j stated to be property, though the society be not enrolled, and though the money tb3 servant Qugiit iu the ordinary course to have been received by a steward. Upon tees, and ' ^"^ indictment for embezzling the moneys of Barber, Allport and Hay- the money cock, it appeared tha^ the prisoner was secretary and clerk to a society staged to be ^'^^^ ^^ ^i^ house called " The One Hundred Pounds and Fifty Pounds their pro- Society," and a member of the society. The *articles of the society were thoiff^h tb ^"^^ enrolled. By the first article the members were to pay their moneys society be to the stewards for the time being, which were to be paid by the clerk and not enroll- Qjjg ^f ^]^q stewards into the bank of the Messrs. Attwoods, as treasurers \-,rrr to the society. Barber, Allport and Haycock were the trustees of the society. Two stewards had been regularly appointed from time to time from the commencement of the society till within a few months before April, 1834 ; but no stewards had been appointed in the year 1834, the prisoner having neglected to summon the committee as he ought to have done, according to his duty. No money was receivable from the mem- bers, according to the regulations of the society, except upon club nights; and when there were stewards, the course of business was for the mem- (a-) Supra, note (w). (y) Rex v. Jones, Monmouth Spring Ass. 1832. MSS. C. S. G. {z) Rex I'. Jensen, R. & M. C. C. R. 434. CHAP. XVII.] WHAT SERVANTS WITHIN THe' ACT. 175 bcrs to pay tlioir contributions to the junior steward, and for liiui to liand it over to the secretary, Avho took an account of it and made an entry, and then carried the money, accompanied by one of the stewards, to the bank ; one entry only of the amount was made by the secretary, signify- ing both the money received from the members and paid into the bank. The only account kept at the bank stood in the names of the trustees. During the time there were no stewards, the secretary had been in the habit of receiving the money from the members on the club nights, and carrying it to the bank. On the 8th of April, 1834, being one of the club nights, the prisoner received from the members of the society the sum of 134/. 9.S. -id., and made an entry of it in the usual way ; of this sum he paid into the bank 73A 18*-. Gd. onlj'-, and embezzled the remainder, CO?. 10s. lOd. It was objected, 1st, that as no stewards had been appointed, the money had not been received by the prisoner by virtue of his em- ployment ; 2nd]y, that the trustees were not properly described as his masters and employers; Srdly, that the property in the money received could not properly be laid as the property of the trustees, especially as the articles had not been enrolled. The objections were overruled, and the prisoner convicted; and, upon a case reserved, the judges were of opinion that this case was governed by the preceding case, and that the conviction was right. (2) So where the prisoner was appointed under the 10 Geo. 4, c G8, col- Collectors lector of the poor, church, and improvement rates, by the vestry of St. of rates. Paul, Covent Garden, it was held that he might be indicted as servant of the committee of management of the affairs of the parish for embezzling their monej's, for it was no objection that he was appointed under the - act of parliament, as it was quite immaterial how he was appointed ; and section 2d provides that the money's shall be the moneys of the com- mittee, and the act means that though the collcctox's are to be appointed by the vestry, yet they are to be clerks or servants to the committee of management; and Ilex v. Jcnson,(a) shows that a person may be the clerk of one though appointed by another. (/v) Upon an indictment against the prisoner under the 39 Geo. 3, *c. 85, *17G for embezzling the property of the churchwardens and overseers of a parish, it appeared that the prisoner was appointed as an extra collector of poor rates by the parish, and that he was paid out of the parish funds ; Lis remuneration, however, was not by a fixed salary, but by a per centage on his collections, and it was contended that he was not a clerk or servant within the meaning of the statute, but the objection was over- ruled, (/v^) In an action for slander the declaration stated that the plaintiff was the The ehum- servant of the mayor, alderman and burgesses of the borou'di of War- 1'*^ '"''*'" "'^ wick, and alleged the words uttered by the defendant to mean that themons of a plaintiff had feloniously embezzled money received by virtue of his said corporation •^ •/ .0 not n, scr* employment; it appeared that the plaintiff was one of the four cliam- y.vnt within bcrlains of certain commonable lands belonjrinjr to the borough of War- the net. wick; the chamberlains arc chosen at the court Icet, and sworn in by {z\ Rex V. Hall, R. & M. C. C. R. 474. {a) Siqjra, p. 174. (6) Reg. V. Callahan,'' 8 C. & P. 174, Vaughan and Patteson, Js. The indictment also contained connts charging the prisoner .as scrv.ant to Walker and others the church-wardens, and he h.id cnihezzled the rector's rate, and on objection tiiken the judges held that the prosecutor should elect on whicdi he -would proceed, which lie did. (bb) Rex V. Ward, Gow, N. P. R. 1G8, Richardson, J. » Eng. Com. Law Reps, xxxiv. 334. 176 OF EMBEZZLEMENTS BY CLERKS AND SERVANTS. [bOOK IV. the steward. Their duties consist in keeping the commons in a good state as to sowing, fencing and draining, kc, and generally superintend- ing them. Their funds arise from pounding the commoners' cattle twice a year till a certain rate per head is paid, and from sums paid by pro- prietors of booths, &c., set up at the races, &c., usually had there. Their accounts are audited annually by two borough magistrates, and any balance in hand is paid over to their successors. Bay ley, B., "the 7 & 8 Geo. 4, c. 29, s. 47, appears to me to apply to ordinary clerks or ser- vants having masters to account to for the discharge of their duties. Now, can this plaintiff bo said to bo such a clerk or servant ? He was not nominated chamberlain by the mayor and corporation, or by the com- moners, but by the jury at the court leet held annually by the corpora- tion as lords of the manor, and was sworn in there as many other per- sons are. Then can the mayor and corporation be said to be his mas- ters within this act ? In the cases cited for the plaintiff(c) the parties charged with embezzlement stood in the characters of plain and ordi- nary servants appointed to collect money for, and to pay it over to, their employers, ^'°" '*'"" "■'' employment, because be filled the character of servant, and it was by ono placo being employed as servant tbat he received tbe money. The lessees of '""i'!"y*^"^'''' , rcccivo two toll-bars employed the prisoner to collect the tolls at one, and in a money of a particular instance ordered him to receive the money collected by . Bailey, J., and Russ. & Ry. 310. 178 OP EMBEZZLEMENT BY CLERKS, ETC. [BOOK IV. statute, and the conviction right. (/ whom his soner of dishonesty, procured Morris to come to his shop with a marked j,iVen it for seven-shilling piece of his own money, there to purchase potatoes, and the purpogo to pay for them with the seven-shilling piece. She came accordingly, iije^e"" bought potatoes to tlic amount of one shilling and three pence, and paid vant's hou- the marked seven-shilling piece to the prisoner, who gave her out of his '^^^y- own pocket five shillings and nine pence in change, though he might have given the change out of moneys belonging to his master which had been left in the counting-house for that purpose. The seven-shil- ling piece was afterwards found secreted in the prisoner's box. Upon this evidence it was contended, on behalf of the prisoner, that the case was not within the act; and that the act applied only to cases where the moneys had been paid to the servant by other persons than the master, and not, as in this case, where the moneys had come intermediately from the hand of the master: but the court was perfectly satisfied that there was nothing in the objection, and that if a servant received the money, either from the master, or from a third person on the master's account, it was sufficient. (h) The same objection was, however, again taken in a case which oc- Headge's curred some years afterwards, and was submitted to the consideration of gj,j:^.an(gg. the twelve judges, who were of opinion that it was not well founded, crotiugmo- The prisoner was indicted for embezzling three shillings, the property "{^^^^^"^1. of his masters, James Clarke and John Gyles. The evidence was, in hasmuiked substance, that Messrs. Clarke and Gyles, whom the prisoner served in ""'^ .«cnthy ■ f ^ 1 • '' ' r 1 1 ] "^ person to the capacity of shopman, having reason to suspect that he embezzled be used in .some of the moneys received by him in the shop, one of them, Mr. uiaking a Gyles, on the day mentioned in the indictment, formed a plan for dc- ijjg shop, tecting him. In pursuance of it, he *first took an account of the money with .1 view at the time in the till, and marked it; and then went to the house of ^^ "he honMiy neighbour, where he took three shillings from his pocket, marked them of the scr- also, and then cave them to his neighbour's servant, one Frances Moxen, ^'1"/' 5"'"" ' fc o } • 1 1 mitteil an who by his desire, and also by tlie order of her mistress, went with them oiiVneu to the shop of Messrs. Clarke and Gyles, and purchased of the prisoner, "."'"" '^"^' who was then serving in the shop, articles exactly amounting to three '^-i un shillings, and paid for them with the three shillings given her by Mr. Gyles. It was clearly proved that the prisoner embezzled these three shillings. Upon this evidence it was submitted to the court, on the be- half of the prisoner, that as the three marked shillings were the pro- perty of the prosecutors, and had been taken out of Mr. Gyles's own pocket for the sole purpose of trying the fidelity of the prisoner, the de- livery of them to Frances Moxen had not changed the possession of them, which, it was contended, remained constructively with the prose- cutors up to the moment when the embezzlement took place ; and there- fore that the charge should have been for a larceny at common law, and (n) Wliitlinghara's, case, 0. B. 1801, 2 Leach, 012. The prisoner was acquitted upon another objectiou. Scd quccre the correctuess of the decision. C. S. G. 180 OF EMBEZZLEMENT BY CLERKS. [boOK. IV. not for an embezzlement under the statute. The court overruled the objection; but, upon the prisoner being found guilty, saved the point for the consideration of the judges; who were of opinion that the case was clearly within the statute, and the conviction proper. Grose, J., who delivered their opinion, referred to Bull's case,(o) as in point; and said, that from that case it appeared that the present, which was pre- cisely similar in its circumstances, was not a case of larceny at common law, but a breach of trust, and as such within the terms and operation of the statute. (j>) The repeal- But where the property taken was delivered to the servant by the ed act, 39, naaster himself, it was decided that the case was not within the repealed 85^ was bold statute. Thus, where the evidence was that the prisoner received from not to ap- lier master two five pound notes, and some other money to pay amougst the proper- ot^er things 5Z. 3s. to the overseer, and the overseer proved that she ty taken had never paid him, the judges held a conviction upon these facts to be wasdehv- ^^QT^cffrA In a later case the indictment charged the prisoner with erccl to tiio *— ' K-*-/ servant by having received and taken into his possession one shilling on account of his master. ]jjg master, and embezzling the same; and upon the evidence it ap- peared, that having two shillings and sixpence of his master's money, to pay on account of his master, he only paid one shilling and sixpence, and converted the other shilling to his own use; upon which the learned judge directed the jury to acquit the prisoner. (r) If property So if the property embezzled has been in the possession of the master has been in or any of his Other servants, the case is not within the 7 & 8 Geo. 4, c. sion^of the ^0, s. 47. Upon an indictment for embezzlement the prisoner was master or proved to be the clerk of A., and he had received from another clerk another of ^i gf ^ 'g money that he might pay (among other things) for inserting it is not an advertisement in the Gazette ; he paid 10s. for the insertion, and within the djaro-ed A. 20s. for the same, and fraudulently converted the difference statute o / ./ Vciq'-i to his own use; and, upon a case reserved, 'the judges thought the case not within the statute, because A. had had possession of the money by the hands of his other clerk.(s) The statute The statute properly applies to those cases where the money has applies to jjgyej. been in the possession of the master or any other person whose C3.SCS WilCrG • the master possession can be considered as the possession of the master. Upon an has never indictment for stealing a 51. note, and certain silver coin, it appeared sion of thT that the prisoner's master gave him the 51. note to get change; he got money. the change, said it was for his master, and that his master sent him. He never returned to his master. The prisoner was found guilty of steal- ing the silver coin; but upon a case reserved, the judges held that the conviction was wrong, because as the master had never had possession of the change, except by the hands of the prisoner, he was only amena- ble under the 39 Geo. 3, c. 85, (now repealed. )(Z) Not where Where an indictment charged Edmund W. with embezzling, and ^ oods^ar"^ Michael W. as accessory after the fact, it appeared that Edmund was sold with- the town traveller and collector of the prosecutor, and Michael his car- (o) Ante, p. 1G4. (u) Headge's case, 0. B. 1800. 2 Leach, 1033. Paiss. & Rj. 160. It seemed to be the opinion of the judges that the statute did not apply to cases which are larceny at common la^y. (-7) Rex V. Eliz. Smith, Hil. T. 1814, MS. Bayley, J., and Russ. & Ry. 267. (/•) Peck's case, cor. Park, J., Stafford Sum Ass. 1817, MS. But it was usual in indict- ments upon this statute to .add a count for larceny at common law, (s) Rex V. Murray, R. & M. C. C. R. 276. (t) Rex v. Sullius, R. & M. C. C. R. 12D. CHAP. XVII.] PROOF OF THE EMBEZZLEMENT. 181 man. Edmund's duty was to go round and take orders from customers, c»^ autho- and to enter them, on his return to the shop in the evening, in the day [Ui/'prico or the order book, and also to receive moneys in payment of such or- embozzlod. ders, but he had no authority whatever to take or direct the delivery of any goods from the shop. A customer gave Edmund an order for two gallons of mixed pickles, and foui'tccn pounds of treacle, which order was entered by him in the order book as for the pickles only. An in- voice for the pickles, pursuant to the entry, was made out by the prose- cutor's brother, and given to Michael, but he delivered the pickles and fourteen pounds of treacle. The sum charged for the pickles was 6s. (id., and Michael entered the treacle at the foot of the invoice at 4s. 6(7. Edmund afterwards received the whole amount, but paid the prosecu- tor 6s. Qd. only. Mr. lleeorder Law, (after consulting Pattcson, J.,) held That this was not embezzlement, but larceny, saying, <' Edmund does not receive the 4s. Gd. for or on account of his master, but contrary to and in breach of his duty towards his master. I may also liken the case to that of two servants, one of whom has authority to sell, and the other not, but merely to receive money ; if the one who has no author- ity to sell introduces himself behind the counter, and sells his master's goods, putting the money into his own pocket, that is clearly a stealing, for he sells and receives the money contrary to his authority; and he cannot be said to have been employed or intrusted as clerk and servant, and to have received the money by virtue of such employment, where the act is done contrary to such employment. Here the servant having authority to send out goods to the amount of 6s. (jd., puts up goods to the amount of lis., his intention being to put 4s. 6' and not entered it in his book, unless there be also evidence that he has !".Jve\lie ' denied the receipt of it or the like. Upon an indictment for embezzle- roccipi of ment, it appeared that Mr. Bettis, a slate merchant, by means of the ["^""jt'j*"' prisoner as his clerk, carried on the slate trade at a wharf at Gloucester : nut entered the course of business was for the prisoner to sell the slates and convey m "-ccount; them to the customers in his own boats, as Mr. Bettis had no boats, the tho receipt (m) The invoice was for the pickles only. (v) Reg. v. Wilson,* 9 C. & F. 27. (w) Ilex V. Ho(l 3 C. & P. 422, Vaughan, B. It docs not appear that the prisoner had ever been called upon to account for the sums in question. C. S. G. » Eng. Com. Law Reps, xxxviii. 22. '' lb. xiv. 377. 182 OF EMBEZZLEMENT EY CLERKS. [bOOK IV. or a false prisoner being also a coal mercliant on his own account : the prisoner mus*t"be ^^^ received the sums in questions, but he and the prosecutor had had shown. no adjustment of accounts for two years, and on Mr. Bettis calling for the prisoner's books, he could not find the sums entered ; he had never specifically asked the prisoner to account for either of the suras, and the accounts of the prisoner amounted to ten or twelve thousand pounds. IBolland, B., " There is not a felonious conversion j I will take it that the prisoner put the money in his own pocket, and has made no entry ; that is not sufficient. Had he denied the receipt of the money, the case miffht have been different. If the mere fact of not entering a sum was enough to support an indictment for embezzlement, every clerk who, through carelessness, omitted an entry, would be liable to be convicted of felony. The prisoner must be acquitted. "(:r) Upon a second indictment against the same prisoner, the evidence of the mode of dealing was the same as in the last case, and it appeared that Mr. Ellis owed 51. to Mr. Bettis for slates, and paid 3^. 14s. 6d. in cash. Is. Qd. being allowed to Ellis as discount, and the remaining 11. 4s. being set against a cider account due from the prisoner to Ellis, and the prisoner had credited Ellis in his ledger to the amount of 5Z., and had entered 3?. 14s. Gd. in the cash book. Mr. Bettis had never called upon the prisoner to account as to this sum of 5?. Bolland, B, '' It ap- pears to me that this does not amount to embezzlement. In cases of this sort the thing alleged to be embezzled should not be laid out of the cjuestion. If goods are taken an intent may more clearly appear than in the case of money, as the same pieces of coin may, in many cases, not be paid over. There is nothing in this case to bring the pris- oner within the statute. He never denied the receipt of the money, and was never called upon for it. I think it essential that there should be a denial of having received the money, or else that some false account should be given. The prisoner must be acquitted. "(?/) Upon an indictment for embezzlement, it appeared that the prose- cutors were owners of a vessel, and the prisoner was in the irservice as the master. The vessel carried culm from Swansea to Pl^-mouth, which, when weighed at Plymouth, weighed two hundred and fifteen tons, and the prisoner received payment for the freight accordingly. When he was asked for his account by the owner, he delivered a statement, ac- knowledging the delivery of two hundred and ten tons, and the receipt of freight for so much. Being asked whether this was all that he had received, he answered that there was a difference of five tons between the weighing at Swansea and Plymouth, and that he had retained the balance for his own use, according to a recognized custom between owners and captains in the course of business. But there was no evi- dence of the alleged difference of weight, or of the custom. Cresswell, J., held that this did not amount to embezzlement. Embezzlement necessarily involved secrecy ; the concealment, for instance, by the de- (x) Rex V. E. 0. Jones,* t C. & P. 833. (»/) Rex V. E. 0. Jones,'' T C. & P. 834. In this case it was objected that there was no embezzlement, as the prisoner had accounted for all the money he had actually received ; if no money at all had passed, and it had been entirely a credit transaction on both sides, it would not have been embezzlement, for that crime was merely a statutory larceny, and could only be proved by showing the actual receipt of the money, and as all that was received was accounted for, the case was the same as if it had been entirely a credit transaction : and this seems to have been a good objec.ion, but it was not decided, as the prisoner waa acquitted on the ground above stated. C. S. G. * Eng. Com. Law Reps, xxxii. 759. *> lb. xxxii. VGO. CHAP. XVII.] PROOF OF EMBEZZLEMENT. 182 fendanfc of Lis having appropriated the money ; if, instead of denying his appropriation, a defendant immediately owned it, alleging a right or an excuse for retaining the sum, no matter how frivolous the alle- gation, and although the fact itself on which the allegation rested were a mere falsification ; as if, in the present case, it should turn out that there was no such difference as that asserted by the defendant between the tonnage at Swansea and at Plymoutli, or that there was no such custom as that set up, it would not amount to cmbczzlcment.( »/^) *A case has been decided which would seem to show that au indict- *18o raent for embezzlement may bo supported by proof of a general de-Whero ficiency of money, without showing any particular sum received and ', "^ 'j' * not accounted for. The 1st count charged the prisoner with embezzling >ieiiciuney. 500/. on the 28th of August: the 2d, 10/. on the 29th: the 3d, -jyith ''"^""P'"^''" T . -IIP • V 11 111."' ^^y v^^- stealing a note, a sovereign, a hair sovereign, ivc, as clerk ; and the 4th, ticulaV sum like the 3d, omitting to state that he was clerk. The prisoner was '■<^'''''^'*^"^ cashier in the bank of Messrs. Masterman, and his duty as cashier was bezzlod! to take charge of the cash when any payment was made into the bank, in money and paper, and the course was for the cashier to hand over the paper to a clerk, and to enter the cash received in a book kept by him (the cashier) called the money-book. It was the duty of the cashier, at the close of the business of each day, to see that the cash in hand agreed with the money-book, and to strike a balance, denoting the sum in cash which the cashier had in his charge, and which ought to have been kept cither in the drawer in the counter, of which he had the key, or in a box in the banking-house, of which he had the key and the charge. On the 28th of August, 1835, the cash in the money-book at the close of business was 1702/. and a fraction, which sum was by the prisoner carried forward, as in due course it ought to have been, and formed the first item of the account in the said book for the 29th. On the latter day, at the close of business, the prisoner, after crediting him- self with money paid by him (it being part of his duty to pay away as well as receive money,) and debiting himself with cash received, made the balance in the money-book 1309/. and a fraction, and that sum the prisoner ought to have had in one or the other of the above-mentioned places of deposit on the same day (29th of August). Soon after the close of business, Mr. Oxlcy, one of the partners, sent for the prisoner, and after intimating his suspicions, required him to produce his money. The prisoner thereupon said, that he was short, and being asked how much; replied about 900/., and threw himself upon the mercy of his employers. Upon examination it was found that the prisoner, instead of 1309/. in his hands, had only 345/. and a fraction, leaving the actual deficiency 904/. and a fraction. Mr. Oxley, who proved the whole case, had no knowledge of the facts whatever, except what has been above stated, and could not say when the money, or any part of it, had been purloined, from what person or persons it had been received, what sort of money had been abstracted, and whether from the till, or upon its receipts from customers. It was proved that there were two or three other cashiers besides the prisoner, who were stationed close to him, and tliat there must be at least two cashiers present during the hours of business. It was objected that there was no case to go to the jury, 1st, (yi/) Reg. t'. Norman,* 1 C. & Mars. 510, » Eng. Com. Law Reps. xli. 324. Vol. II. — 13 184 OP EMBEZZLEMENT BY CLERKS. [bOOK IV. because the evidence, such as it was, applied equally to the charges of embezzlement and larceny, and not particularly to either; 2dly, that *184 there ought to have been *some proof of some sum or sums of money having been abstracted, when, from whom, and what sort of money. Williams, J., however, (in concurrence with Gurney, B.,) refused to stop the case, but reserved the points. And accordingly, the jury hav- ing been told that taking money from the till would amount to larceny, and that abstracting money paid to him (the prisoner) before it reached the till, or possession of his masters, would be embezzlement, it was left to them to say whether both, or either of the charges which were stated to them, were established by the proof. The jury found the prisoner guilty of embezzlement to the amount charged, and not guilty of stealing. Upon a case reserved, it was contended that in order to enable the jury to convict either of larceny or embezzlement, there must be proof of some specific sum abstracted, and the time when. That the only evidence in this case was of a deficiency in accounts, but how that arose was not shown. There was considerable diiference of opinion amongst the learned judges, and the case was discussed at difierent meetings, and ultimately eight of the learned judges(2;) were of opinion that the conviction was good, but the other seven(('f) were of opinion that the conviction was wrong, (i) There must But it should seem that it is not to be inferred from the preceding be proof gase that proof of a general deficiency will be sufficient, but there must specificsum ^^ proof that some specific sum has been embezzled. Upon an indict- has been ment for embezzlement, it was opened that the prisoner had been shop- embezzled. ^^^ ^^ ^j^g prosecutrix, and that it would be proved that there was a deficiency in the prisoner's accounts, but that there was no proof of the embezzlement of any particular sum. Alderson, B., ''Whatever dif- ference of opinion there might be in the case of Rex v. Grove, (Z<) that proceeded more upon the peculiar facts of that case than upon the law. It is not sufficient to prove at the trial a general deficiency in account. Some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen."(c) Servants I^ ^ servant, having received money on account of her master, goes absconding away and never returns to her master's service, that is evidence that embezzle-" ^^^ embezzled the money. Upon an indictment for embezzlement, it ment. appeared that the prisoner was sent by her master's daughter to receive rent due to him from a tenant, and that having received the rent, she went off to Ireland, and never returned to her master's service. Cole- ride, J., said, in summing up, "I think that the circumstance of the prisoner having quitted her place and gone off to Ireland, is evidence from which you may infer that she intended to appropriate the money; and if you think that she did so intend, she is guilty of embezzle- ment." (cZ) Embezzle- Although the receipt of the money must be whilst the prisoner is in ment after the service of the prosecutor, yet it should seem that the embezzlement (z) Lord Denham, C. J., Tindal, C. J., Lord Abinger, C. B., Park, J. A. J., Vaugban, B., Bosanquet, J., Gurney, B., and Williams, J. (a) Littledale, J., Gaselee, J., Parke, B., Bollaud, B., Alderson, B., Patteson, J., and Coleridge, J. (b) Rex V. Grove, R. & M. C. C. R. 447. (c) Rex V. Lloyd Jones,^ 8 C. & P. 288. (d) Rex v. Williams,'' 7 C. & P. 338. » Eng. Com. Law Reps, xxxiv. 393. ^ lb. xxxii. 532. CHAP. XVII.] INDICTMENT. 184 — — - — ■ — r of the money may be after the prisoner has ceased to be the servant, f^e service In a case upon the 2 Wm. 4, c. 4, where it was objected that the indict- '* *"" ** • mcnt did not allege that the prisoner embezzled whilst *he was the *185 clerk; Coleridge, J., said, "It is by no means clear that an embezzle- ment (if such a case be possible) after a person ceased to be clerk or servant, of money received whilst he was such, would not be within the act."(c) Where the prisoner had been convicted upon the 39 Goo. 3, c. 85, Johnson's (now repealed,) upon an indictment, several counts of which charged ^,"®°- him with embezzling bank-notes against the form of the statute, and larceny at others with stealing bank-notes in the common form of counts for lar- common ceny, it was assigned for error that this was a misjoinder, the counts for f^^ embez- cmbezzlement on the statute, and the counts for grand larceny, being element counts upon which a different judgment ought bylaw to be given. Butgg J^J 3 the Court of King's Bench were of opinion that the counts for embezzle- c. 85, held ment might well be joined with the counts for larceny, considering that"°^J^j ^^ the statute had in fact made the offence of embezzlement described in error, it a larceny ; and that, having so done, it had attached upon it all the properties and consequences attaching upon the crime of larceny. And Lord Ellenborough, C. J., said, " If this were an offence of a perfectly different nature, I should have been of opinion that the judgment could not have been sustained. But the act says, that the offender shall be deemed to have feloniously stolen, which is expressly constituting it a felony, and having so dune the offender must, as in the like cases of felony, pray the benefit of clergy. But inasmuch as it is larceny, and therefore liable only to the punishment of seven years' transportation, this act goes further, and gives power to transport for fourteen years. The act docs not alter the quality of the offence ; he is to be deemed a felon, and as such must pray the benefit of clergy, just the same as if this enactment for an extended term of transportation had not been found in the statute. It makes no alteration in the judgment ; the judgment is to pass against him as a felon; if he does not pray the benefit of clergy, it must be a judgment of death. And in a variety of cases, though the punishment be different, yet counts may be joined." And he further added, " Here I think it does not appear that there is a misjoinder; because both are clergyable felonies; and the defendant is liable to the punishment incident to such a felony with an extension of it to the term of fourteen years. "(/) But where an indictment contained a count for embezzlement, and aElociiou. count for larceny, Littledale, J., insisted on the prosecutor electing on which he would proceed, observing that the counts had a different aspect altogether. (//) Except as the 48th section of the new act of 7 & 8 Geo. 4, may havelndict- itherwise provided, it seems that the indictment ought to contain all™*"*'* the requisites of an indictment for larceny at common law. In a case upon the repealed statute 39 Geo. 3, an indictment was M'Grcffor's holden to be defective, because it did not expressly aver that the money <^"*'-'- ^^^'^'gg alleged to have been feloniously stolen, taken and carried away by the q.q. 3, c. {(■) Reg. V. Lovcll, 2 M. & Rob. 23G. See this case, pout, chap. 20. (/) Rex V. Johnson, 3. M. & S. 540. This case merely decides that the rejoinder of these counts is no objection upon error. C. S. G. {/;) Rex V. Jones, Monmouth Spring Ass. 1832, MSS. C. S. G. And sec 2 Stark. C. P. 456, note, from which it appears that the court, in Rex v. Johnson, thonpht it was a matter for the discretion of the judge whether the prosecutor should be put to his election or not. 185 OF EMBEZZLEMENT BY CLERKS. [BOOK IV. 85, that the prisoner, was the money of any particular person. The point was re- mi''htTo"'^ served for the opinion of the judges, and was argued before them at contain all considerable length. It was contended, on behalf of *the prisoner, in tbe requi- g^pport of the obiection, that as the statute had not made the sort of sites fn ml ^ ^ v j indictment embezzlement therein mentioned co nomine a distinct and substantive for larceny fdony, but had only enacted that the property received into the pos- 1,,^. session of the servant, and feloniously converted by him, should be con- *186 sidered as having been by such conversion feloniously taken from the possession of the master, the offence still continued a common law lar- cency ; and that consequently an indictment framed upon the statute must contain all the requisites of an indictment for larceny at common law. And in order to show that it would not be a sufficient answer tp the objection, to say that the indictment had followed the words of the statute, several instances were mentioned of indictments upon particu- lar statutes, 1 Edw. 6, c. 12, s. 10 ; 8 Eliz. c. 4 ; 22 Car. 2, c. 5 ; 3 & 4 W. & M. c. 9, s. 1 ; 10 & 11 W. & M. c. 23, s. 1 ; 12 Anne, c. 7 ; and 24 Geo. 2, c. 45, relating to the stealing of particular goods, or stealing goods under certain circumstances, all of which pursue the same form as to the requisite parts of larceny at common law. On the part of the crown it was argued, that the statute in question made the em- bezzling by servants, in the manner stated, a substantive felony, which before was only a misdemeanor, or breach of trust, for which the master had a civil remedy. That it was therefore sufficient to follow the words of the act, as in other instances where new offences were created ; which differed from indictments on statutes merely ousting the offender from clergy in cases which were before larcenies at common law. That the legislature, in this instance, meant to include cases where, from the pro- perty being, as it were, in transitu, it was difficult to ascertain in whom it was at the time of the offence committed ; and that it therefore in- tended to relieve the prosecutor from the necessity of laying it to be in any particular person. That at any rate no technical form of words was necessary in charging a thing to be the property of another : and that here enough was stated, to show that it was not the prisoner's own property, being charged to have been received by him on account of his masters ; which was tantamount to an allegation of their having a spe- cial property in it. It appears that the judges at first doubted much upon this case, but that ultimately a majority of them were of opinion that the indictment was defective, as it did not aver that the money alleged to have been stolen was the money of the prosecutors ; that the statute made the offence a larceny, and made the possession of the ser- vant, under such circumstances, the possession of the master.(7i) Allegation The 48th section of the new statute enacts, " that except where the as to the offencc shall relate to any chattel, it shall be sufficient in the indictment embezzlod. to allege the embezzlement to be of money without specifying any par- ticular coin or valuable security ; and that such allegation, so far as re- gards the description of the property, shall be sustained, if the offender shall be proved to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed, shall not be proved. "(«) This is one of the enactments intended to prevent the difficulties experienced in the prosecution of offenders under {k) M'Grcgor's case, 0. B. 1801. Feb. 1802. 2 Leach, 932. 3 Bos. & Pul. 106. 2 East, P. C. c. 16, s. 18, p. 576. Rus3. & Ry. 23. (»■) See the section, ante, p. 167. CHAP. XVII.] INDICTMENT. l86 the repealed statute of the 39 Geo. 3. Under that statute it had been holdeu that if the evidence did not *show that the prisoner embezzled *187 some part of the property specified, the case against him could not be established. An indictment stated that the prisoner received IL 2s. Gd. in moneys numbered, and 6/. in one pound notes, and embezzled part thereof, namely, fifteen shillings and seven-pence in moneys numbered, and one 11. note : the evidence was that he received at the same time much other money, and many other notes, but that instead of giving credit for 71. 2s. (id., he only gave credit for 5^. Gs. 10c/. Upon a case reserved, the judges held, that as he might have paid over the whole of what he received for the 71. 2s. Gd., and have taken the 1/. 15s. 7d. from the other moneys he received, he was improperly convicted, there being nothing to show that he had stolen any part of that money which he was charged with stealing, (y) But it was also holdcn upon that statute, that if a servant immediately on receiving a sum for his master entered a smaller sum iu his master's books, and ultimately accounted to his Where a master for the smaller sum only, he might be considered as embezzling ^[[^^ is'^en- the difi"crence at the time he made the entry; at least the jury might tered at the so find. And that it would not alter the case if he received other sums t'™o of re- ceipt the for his master on the same day, and in paying those and the smaller jury may sums to his master together, he might have given his master every piece ''"^l a^ <>"- of money, or every note he had received at the time he made the false at that entry. The prisoner received for his master from Mrs. W. eighteen one ti™c. pound notes, and immediately entered in his master's books 121. only: in the course of the day he received, for his master, 104/. more, and after that time paid him llGl. The indictment charged him with em- bezzling six of the notes which be received from Mrs. W., and it was urged on his behalf, at the trial, that be might have paid over in the IIGL every one of the notes which he received from Mrs. W. ; and if so, that he could not be said to have embezzled any of those specific notes. Baylcy, J., told the jury that as in what he payed, he paid only 12/. as and for all he had received from Mrs. W., and paid the other 101/. as and for moneys received of other persons, he ought to bo con- sidered as having embezzled six of the notes he received from Mrs. W., because he would then have misapplied six of those specific notes to hia own benefit, and to his master's prejudice. And upon a case being re- served, nine judges, (Best, J., being absent,) thought it an embezzle- ment from the time of making the false entry. Wood, B., rather thought otherwise ; and Abbott, C J., thought that the point should have been left to the consideration of the jury.(7i-) Where an indictment upon the repealed staftite 39 Geo. 3, c. 85, -wbere the charged that the prisoner was employed as a clerk to A., and that, by word-'felo- virtue of his employment, he received fi-om B., on account of his mas- ^asomitted ter, 9/. 18s. 9c/. without showing of what moneys that sum was made before tho (./) Rex V. Tycrs, Mich. T. 1819, MS. Bayley, J, and Russ. & Ry. 402. The notes had been in the master's possession, who took them and placed them on a heap with otiiers hcforc the prisonor, and this objection was made I)}' the prisoner's counsel, and seemed to be accpiiesced in, and the case confined to the \l. 2s. Gd. only which was in silver. It also appeared that the prisoner at first gave credit for the 7/. 2s. (Jil., and entered it in the proper book in his own hand, but he afterwards erased that sum, and substituted the bl. Cs. lOd., and as he might have paid over every note in question, and either paid over or passed away in change every i)icce of silver in cjuestion, the judge thought Rex v. Furneaux in point. See the case of Rex v. Furneaux, Russ. & Ry. 335. (A) Rex V. Hall, Mich. T. 1821, MS. Baylej', J., and Russ. & Ry. 4G3. *188 OF EMBEZZLEMENT BY CLEKKS. [BOOK IV. word up, and that he fraudulently embezzled and secreted the same, *omit. zlod "°but *^"S ^^^ word feloniously ; and so it concluded that the jurors say that theconclu- hc did /t'fojiiOMs^y embezzle, steal, take and carry away, &c. j" objection tr't tlT^' ^^^ made, that in the introductory part of the indictment it was not prisoner alleged that he did feloniously embezzle, &c., and that therefore the •' felonious- jQ(jjgj;j^gQj_ failed to show that he had committed a felony, and that, un- Iv did steal . . tako, &c.,"' less it was so shown in the body of the indictment, it was not enough tho indict- that it was so alleged in the conclusion of it. The judges, however, holden considered it to be sufficient that it was stated in the conclusion ; and good. the indictment was holden good.(/') A count -^ count containing three charges of embezzlement, and not alleging containing that the sums of money were embezzled within six calendar months, is ^^^^ » bad. The indictment alleged that the prisoner, on the 15th day of embezzle- November, 5 Victoria, was servant to H. Hodges, and did then and nient. and there bv virtue, &c., receive 21. Is. Qd. on account of his master: and ing that the t^^* the prisoner afterwards and within the space of six calender months, three sums to wit, on the 16th day of November, in the year aforesaid, did receive bezzled " ^^^ further sum of 21. 3s. on account, &c. ; and that the prisoner after- within six wards and within the space of six calender months from the day first moji s IS aforesaid, to wit, on the 17th of November in the year aforesaid, did re- ceive the further sum of 21. Is. on account, &c. : and that the prisoner on the several days aforesaid, in the year aforesaid, the said several sums of money respectively received by him on each of those days as aforesaid, feloniously did embezzle ; and so the jurors do say that the prisoner in manner and form as aforesaid, feloniously did steal the said several sums of money against the form of the statute. Upon demur- rer, it was objected that the indictment was bad ; 1st, because it con- tained three offences in one count ; whereas the statute only authorized tho inserting three offences in three different counts. 2dly, that it did not show that the three offences were committed withia six calendar » months ; for although the receipt of the money might be within six calendar months, the embezzlement might not be within that period. 3dly, that the indictment charged a joint stealing on three different days. And lastly, that there was only one contra pacem to three different offences. And the indictment was held bad. At common law it would have been bad, because the contra pacem could not be applied to one more than to another of the offences charged : and it was not rendered good by the 7 & 8 G-eo. 4, c. 29, s. 48. Under that section it was ne- cessary to allege that the embezzlements were within six calendar months ; now the offence is not the receipt of the money, but the embezzlement of it, and in this case, although there was an averment that the moneys were received within six calendar months, there was no allegation that they were embezzled within that period; and therefore the indictment was bad.(^m) Description We have seen that the 7 & 8 Geo. 4, c. 29, s. 48, provides that in {I) Rex V. Crigton, cor. Thomson, B., Lancaster Sum. Ass. 1083, and before the judges) Mich. T. 1803, MS. Bayley, J., and Russ. & Ry. 62. Rex v. Johnson, 3 M. & S. 540. {m) Reg. V. Purchase,^ Gloucester Spr. Ass. 1842, MSS. S. C. 1 C. & Mars. 617. C. S. G. Patteson, J., after consulting Cresswell, J. The very learned judge expressed no decided opinion whether or not three otfences could be included in one count, but said that the safer course was to have three separate counts. His lordship cited a case of Reg. v. Jeyes, where an indictment, exactly the same as the one in this case, except that the words "within six calendar months," were not introduced, had been held bad by Lord Abinger, C. B., and himself, at Warwick. 0. S. G. * Eng Com. Law Reps. xli. 395. CHAP. XVII.] VENUE. '189 *every indictment, except where the olTeuec relates to some chattel, it of tbe thing shall be sufficient to allege the embezzlement to be of money, ■without specifying any particular coin, or valuable security. Where the offence relates to some chattel, the same description as larceny will be suffi- cient. (?i) As an indictment for embezzlement is so general as to afford no in. I^'H "f P'^''- formation to the prisoner of the precise sums embezzled, or of the persons from whom they were received, the prisoner is entitled to be furnished by the prosecutor with a particular of the charges intended to be made ; and if the prosecutor refuse to give such particular, the court on motion, founded upon affidavit, will order a particular to be given, and such particular should contain the names of the persons from whom the sums of money arc alleged to have been received, (o) Where there is only one count, and the prisoner has received different sums on different days, amounting to the sum laid in that count, the prosecutor must elect one sum, and confine his evidence to that sum. Upon an indictment for embezzling lis. IQd., it appeared that the pri- soner had received money in different sums, upon different days, amount- ing in the whole to the sum mentioned in the indictment, and it was held that the prosecutor must select one sum received on one particular day, and confine his evidence to that sum.(p) Two cases occurred upon the repealed statute, 39 G-eo. 3, in which Trial, questions were raised as to the counfi/ in which the offence within that ^"""^^^ ,'" .ii,-, . i.1 which tho statute might be considered as having been so completed as to autuor- offeucemaj ize a trial in such county. '^*'' '''■"'^• In the first of these cases the prisoner was indicted in the county of Uobsou's Salop. The residence of the master was at Litchfield in Staffordshire, ^'"-^<:- , -^ ,, . 11--1- 1 /-v Ctrl • donial bv n. where the prisoner served him in his trade. Un a baturday morning, servant iu both of them were at Shrewsbury; and the master having authorized a ^,^!'^'""^/. ., person, named Beaumont, to collect some debts for him at that place, jjaving re-° returned home the same morning, leaving the prisoner at Shrewsbury ceivod mo- to receive the money from Beaumont, and bring it to him at Litchfield ^^i^ropsbire the same night. The prisoner received the money from Beaumont is evidence about noon, and also a letter for his master which had been left at [^j^\^\°j^ j^. Beaumont's but which did not relate to the money transaction. He ceipt in left Shrewsbury soon after, but did not go to his master at Lichfield •'^liropshiru till the following evening. He then delivered the letter ; and being intent to asked about the money, he said he had not received any. A few days embezzle : after, the master, in consequence of information he had received by jY,ry ^le letter, charged the prisoner with having received the money, and an- trial may other servant Avho had been at Shrewsbury on Saturday, being present, y'lJ^opghTre told the prisoner that he had seen him receive money, but the pri- soner persisted in denying that he had received any. Some time after- tcrwards, the master, having received further intelligence, bid the pri- soner go to Shrewsbury to clear himself. On the Saturday following the prisoner went to Beaumont, at his house in Shrewsbury, and de- (n) Sec ante, p. 107, ei seq. (o) Rex V. Hodgson,^ 3 C. & P. 422, Vanghan, B. Rex v. Bootyman,'' 5 G. & P. 300, Li(- tlcdalc, J. The affidavit should state that the prisoner did not know the charges intended to he brought against him, that it was necessary for his defence to be furnished with the particular charges, and that he had applied to the prosecutor for a particular and been refused. (2>) Rex V. Williams,': 6 C. & P. 62G, Arabin, Sorjt., after consulting Gasclce, J., Alder- son, B., and Guruey, B. » Eng. Com. Law Reps. xiv. 373. ^ lb. xxiv. 330. ' lb xxv. 5C8. 180 OF EMBEZZLEMENT BY CLERKS. [bOOK IV. sired him to make a search on the left hand side of the room in which *191 they had been j* but no search was made, Beaumont telling him it was of no use to search, as he had received the money from him. The jury having found the prisoner guilty, the case was submitted to the con- sideration of the twelve judges, upon two questions; first, whether, under this statute, an indictment might not be found in the county where the money or goods were received, although there were no evi- dence of any other fact locally arising within the same county ? and, secondly, whether, if further local proof were necessary, the subsequent conduct of the prisoner at Shrewsbury were not sufficient to obviate the objection, as being an act in furtherance of the purpose of secreting or embezzling? A majority of the judges were of opinion, that the conviction was right. Lawrence, J., thought, that embezzling being the offence, there was no evidence of any offence in Shropshire, and that the prisoner was improperly indicted in that county. But the other judges were of opinion that the indictment might be in Shrop- shire where the prisoner received the money, as well as in Staffordshire where he embezzled it by not accounting for it to his master ; that the statute having made the receiving property and embezzling it amount to a larceny, made the offence a felony where the property was first taken, and that the offender might therefore be indicted in that or in any other county into which he carried the property, (j) Taylor's In the Other case, which occurred shortly afterwards, the indictment case. If a c]2j^i.gg(j the prisoner with embezzling the sum of ten shillings, the pro- ceive mo- perty of his master James Barker. The evidence was, that the prose- ueyforhis cutor Barker, who was a fishmonger in Drury-lane, in the county of the county Middlesex, sent his servant, the prisoner, with some herrings to a street of A., and in Blackfriars-road, in the county of Surrey, to a Mrs. Stevens; telling lecl^ifpon "to ^^'^ that he was to receive the sum often shillings for them. He went .iccount for with the herrings about six o'clock in the evening, and delivered them county of *^ ^^^^' Stevens, who paid him the ten shillings; after which he re- B., there turned to his master, who asked him if he had brought the money, to deny the -^yiiicJi Jie replied, that he had not, for that Mrs. Stevens had not paid rccoiT)toiit 1. / ^ J. he may be ' him. His master then paid him his weekly wages (it being on a Sat- indieted form-day), and he went away, he being to return on Monday morning as ziement in usual : but did uot return, nor did he ever account for the money, the latter Upon this evidence it was contended, on the part of the prisoner, that «own y- -j^Q ^g^g Qjjjy liable to be indicted in the county of Surrey, where the money was received : and the jury having found him guilty, this point was reserved for the consideration of the judges. The opinion of the judges was afterwards delivered by Lord Alvanley, C. J., who first re- ferred to the foregoing case of Hobson, and then proceeded. " In the present case no doubt can be entertained. The prisoner being sent over Blaekfriars-bridge into the county of Surrey, there received ten shillings for his master. The receipt of that money was perfectly legal, and there was no evidence that he ever came to the determination of appropriating the money to his own use until after he had returned into the county of Middlesex. It was not proved that the money ever was embezzled until the prisoner was in the county of Middlesex. In cases of this sort the nature of the thing embezzled *ought not to be laid out (q) Ilobson's Ccase, Shrewsbury Lent Ass. 1803, and East. T. 1803. 1 East, P. C. Ad- denda, ixiv. and Russ & Ry. 56. CHAP. XVIII.] OF EMBEZZLEMENT BY BANKERS, BROKERS, ETC. 191 of the question. The receipt of money is not like the receipt of an in- dividual thing, where the receipt may be attended with circumstances which plainly indicate an intention to steal, by showing; an intention in the receiver to appropriate the thing to his own use. Thus, if a servant receive a horse for his master, and sell it before he gets out of the county where he first received it, it might bo said that he is guilty of the whole offence in that county. But with respect to money, it is not necessary that the servant should deliver over to his master the identical pieces of money which he receives, if he should have lawful occasion to pay them away. In such a case as this, therefore, even if there had been evidence of the prisoner having spent the money on the other side of Blackfriars-bridgc, it would not necessarily confine the trial of the offence to the county of Surrey. But here there is no evidence of any act to bring the prisoner within the statute until he is called upon by his mas- ter to account. When called upon by his master to account for the money the prisoner denied that he had ever received it. This was the first act from which the jury could with certainty say that the prisoner intended to embezzle the money. In this case there was no evidence of the prisoner having done any act to embezzle in the county of Surrey, nor could the offence be complete, nor the prisoner be guilty within the statute until he refused to account to his master. We are, therefore, of opinion, that the prisoner was properly indicted in the county of IMid- dlcscs."('-) It should be observed, that by the 7 Geo. 4, c. G4, s. 12, where a 7 Geo. 4, c. felony is begun in one county, and completed in another, such felony ^^''^^ j^ may be dealt with, inquired of, tried, determined, and punished in any ono county of the said counties, in the same manner as if it had been actually and ""j|p'^^{'™^ wholly committed therein. another. By sec. 61, of the 7 & 8 Geo. 4, c. 29, principals in the second de- .^^. ^^^ grcc, and accessories before the fact, are punishable in the same manner j^ tij^ gg. as principals in the first degree ; and accessories after the fact (except eond de- receivers of stolen property) are liable to be imprisoned for any term fccessories. not exceeding two years. (i) *CnAPTER THE EIGHTEENTH. ''192 OF EMBEZZLEMENT BY BANKERS, BROKERS, FACTORS, AND OTHER AGENTS. Shortly after the decision in Walsh's case, which has been noticed in a former part of this work,(a) the 52 Geo. 3, c. 63, was passed for more effectually preventing the embezzlement of securities for money and other effects, left or deposited for safe custody, or other special purpose, in the hands of bankers, merchants, brokers, attorneys, or other agents. This act was repealed by the 7 & 8 Geo. 4, c. 27, but the 7 ct 8 Geo. 4, c. 29, contains other enactments upon the same subject. The 7 & 8 Geo. 4, c. 29, s. 49, " for the punishment of embezzlements ^ ^ g ,jqq committed by agents intrusted with property,"(i) enacts " that if any 4, c. 29. (r) Taylor's case, 3 Bos. & Paul. 59G. 2 Leach, 974. Russ. & Ry. C3. ?s) Ante, p. 2, as to hard labour and solitary coufinement. fa) Ante, p. 30. (/)) The words in the preamble of the 52 Geo. 3,c. G3, were " bankcri?, merchants, brokers, attorneys, or other agents, intrusted by their customers and employers." 192 OF EMBEZZLEMENT BY BANKERS, BROKERS, [bOOK IV. Agents em- money, (r) or security for the payment of money, shall be intrusted to moueyla- ^"J banker, merchant, broker, attorney, or other agent, (fZ) with any trusted to direction in writing to apply such money, or any part thereof, or the them to bo proceeds or any part of the proceeds of such security, for any purpose any spoeiai specified in such direction, and he shall, in violation of good faith, and purpose ; or gQjjtrary to the purpose so specified, in any wise convert to his own any goods use Or benefit, such money, security, or proceeds, or any part thereof or valuable respectively, every such offender shall be guilty of a misdemeanor, and, tms't'cHUo'^" being convicted thereof, shall be liable, at the discretion of the court, to them for be transported beyond the seas for any term not exceeding fourteen d\'*^o*r"for" J^^^^) ^^^ l<3ss than seven years, or to suffer such other punishment by any special fine or imprisonment, or by both, as the court shall award ;(e) and if any P"!'P°^*'' chattel or valuable security, or any power of attorney for the sale or misde- ' transfer of any share or interest in any public stock or fund, whether of meanor. ^i^jg ]jingdom, or of Great Britain, or of Ireland, or of any foreign state, or in any fund of any body corporate, company, or society, shall be in- *193 trusted to any banker, merchant, broker, attorney, *or other agent, for safe custody, or for any special purpose, without any authority to sell, negotiate, transfer, or pledge, and he shall, in violation of good faith, and contrary to the object or purpose for which such chattel, security, or power of attorney shall have been intrusted to him, sell, negotiate, trans- fer, pledge, or in any manner convert to his own use or benefit such chattel or security, or the proceeds of the same, or any part thereof, or the share or interest in the stock or fund to which such power of attor- ney >shall relate, or any part thereof, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to any of the punishments which the court may award, as hereinbefore last mentioned." (/) Not to af- By sec. 50, " nothing hereinbefore contained relating to agents shall or'^morto-a! S-S'^ct any trustee in or under any instrument whatever, or any mort- gees ; nor gage of any property, real or personal, in respect of any act done by bankers, g^^^i^ trustee or mortgagee in relation to the property comprised in or ing' money affected by any such trust or mortgage ; nor shall restrain any banker, due on se- merchant, broker, attorney, or other agent, from receiving any money disposing of which shall be or become actually due and payable upon or by virtue securcties of any valuable security, according to the tenor and effect thereof, in tbey^bavo a ^"^^ manner as he might have done if this act had not been passed ; lien. nor from selling, transferring, or otherwise disposing of any securities or effects in his possession, upon which he shall have any lien, claim, or demand entitling him by law so to do, unless such sale, transfer, or other disposal, shall extend to a greater number or part of such secu- rities or effects than shall be requisite for satisfying such lien, claim, or demand." Factors By scc. 51, "if any factor or agent intrusted, for the purpose of sale, (c) The word " money," -was not in the 52 Geo. 3, c. 63. (d) The words iu the 52 Geo. 3, c. 63, were, "agent or agents of any description what- soever." (e) The present punishment, by virtue of this section, and sec. 4 of the same statute, ante, p. 145, and the 1 Vict. c. 90, s. 5, ante, p. 145, is transportation for not exceeding four- teen, nor less than seven years, or fine or imprisonment, with or without hard labour in the common gaol or hous'e of correction, or both, and the offender may be sentenced to solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at a time, and not exceeding three months in the space of one year. (/) See the last note for the present punishment. CHAP. XVIII.] AND OTHER AGENTS. 193 with any goods or merchandise, or intrusted with any bill of lading, pif^'iKi';,? warehouse-keeper's or wharfinger's certificate, or warrant or order for J^^^^y^^'J^ delivery of goods or merchandise, shall, for his own benefit, and in vio- finy goods lation of good faith, deposit or pledge any such goods or merchandise, J^g^""'' j^j or any of the said documents, as a security for any money or negotiable ting to instrument borrowed or received by such factor or agent, at or before """'^^ '"- the time of making such deposit or pledge, or intended to be thereafter tiiem for borrowed or received, every such offender shall be guilty of a misde- the r"r- mcanor, and, being convicted thereof, shall be liable, at the discretion of yy-fiy q^^' the court, to be transported beyond the seas for any term not exceeding misdemea- fourteen years, nor less than seven years, or to suffer such other punish- "^'"' ment by fine or imprisonment, or by both, as the court shall award ;(i'no»nt "f or bills of exchange, drawn by or on account of such principal, and accepted by such factor or agent." By sec. 52, " nothing in this act contained, nor any procgcding, *con- *19-1: viction, or judgment to be had or taken thereupon, against any banker, Tliese pro- merchant, broker, factor, attorney, or other agent, as aforesaid, shall i^ agents prevent, lessen, or impeach any remedy at law or in equity which any shall not party aggrieved by any such offence might or would have had if this remedy"^ act had not been passed ; but nevertheless the conviction of any such which the offender shall not be received in evidence in any action at law or suit in l^'Y^^ "»" trricvutl equity against him ; and no banker, merchant, broker, factor, attorney, now Las. or other agent, as aforesaid, shall be liable to be convicted by any evi- dence whatever as an offender against this act, in respect of any act done by him if he shall at any time previously to his being indicted for such offence have disclosed such act, on oath, in consequence of any com- pulsory process of any court of law or equity in any action, suit, or proceeding, which shall have been bond fide instituted by any party aggrieved, or if he shall have disclosed the same in any examination or deposition before any commissioners of bankrupt." By sec. 61, " every person who shall aid, abet, counsel, or procure Abettors the commission of any misdemeanor punishable under this act, shall be r»n'f^.habie liable to be indicted and punished as a principal offender." pals. It was held that the 52 Geo, 3, c. 63, (now repealed) only applied to persons to whom securities were intrusted in the exercise of their func- ed statute tion or business, and not to persons gratuitously encraffincr to procure the ""'.^' "P- discouut 01 bills, such persons not being in any business within which g^,,^ j„ such an employment regularly falls. The defendant was indicted under whom se- the 52 Geo. 3, c. 63, for unlawfully negotiating and applying to his own ^,""0 uurus- use a bill of exchange deposited with him as agent for the owners with- ted in the out' any authority to pledge, for the purpose of getting it discounted. j/'YTusi The defendant was not a bill-broker, and was to receive no commission nesi. for discounting the bill ; but was in the habit of discounting bills for the owners of the bill, and they were in the habit of doing so for him. The bill hud been drawn by the owners by the advice of the defendant, who (y) Sec p. 128, as to hard labour and solitary confinement. 194 OF EMBEZZLEMENT BY BANKERS, BROKERS, ETC. [BOOK IV. informed them that he had the means of getting it discounted ; and it was delivered to him for that purpose, and he deposited it with a creditor of his own as coHateral security. It was objected that the defendant was not an agent within the meaning of the statute ; that his offices were gratuitous, and not performed in his regular business; it was replied that the words included agents of any description whatsoever, and that a gratuitous agency was an agency of some description. Ab- bott, C J., " We must endeavour to ascertain the intention and object of the statute ; and that appears to have been the punishment of persons who, in the exercise of their functions, receive securities and afterwards embezzle them. It is true that, for certain purposes, a friend is an agent, but can he be called such an agent as the legislature had here in view ? Now here the parties are merely friends, accustomed to accommodate each other, and taking the transaction as one between such friends mu- tually aiding each other, can it be said to fall within the operation of an act passed with such an intention and object? The words, 'any de- scription whatsoever,' are certainly very comprehensive, but if it had been intended to comprehend within the enactments of the statute de- posits for any purposes, (such for instance as safe custody,) all the preceding words, ' banker, merchant,' &c., would have been unnecessary, *195 and *might have been omitted. It was, therefore, intended to confine the operation of the statue to persons acting in the discharge of their functions. I entertain a very clear opinion on the point." (/i) \Vhat uot An indictment on the same statute alleged that the defendant had an agency j-cccived thc sum of 10?. 8s. as an agent for safe custody, and had em- fm-^afo cul ^^ezzled the same. The defendant was the proprietor of a weekly saving tody. bank, in which there were 130 members, each member paid in weekly the sum of 2s. Id., and the penny being allowed to the defendant as a remuneration for her trouble ; at the end of each week a lottery took place, in which there were 129 blanks and one prize, the holder of which prize received the sum of 13/'., the total amount of each week's subscrip- tion J all parties then went on with their subscriptions until 130 weeks had gone round, and each member had received the ISl. prize. The prosecutrix was one of the members, and had paid in subscriptions to the amount of 101. 8s., without ever obtaining the prize, when the de- fendant suddenly absconded, and the deposit had never been forthcom- ing. It was objected, first, that the defendant could not be considered as an " agent," within the meaning of the act, no such establishment as the one managed by the defendant being in existence at the time of the passing of the law ; second, that the money mentioned in the indictment was not in the keeping of the defendant " for safe custody," within the meaning of the act of parliament ; third, that the indictment averred that the defendant had received the sum of 101. 8s. of the prosecutrix, whereas the evidence proved that she never had at one time received or had in her possession more than 2s. Id. belonging to the prosecutrix. Park, J. A. J., said, that " the three objections were, in his opinion, clearly fatal to this indictment ; there did not seem to be any such agency or keeping for safe custody on the part of the defendant, as was contemplated by the statute; and with regard to the receipt of the (/i) Rex V. Priace,* M. & M. 21. S. C. 3 C. & P. 517. See notes (b), and (c), anlc, p. 192. =' Eng. Com. Law Reps. xii. 242. CHAP. XIX.] OF EMBEZZLEMENTS OF MINOR IMPORTANCE. 195 money, the evidence was decidedly at variance with the averment upon that point."(i) It was held that the same repealed statute that the indictment must An indict- correctly specify the direction given to the agent ; where, therefore, an "^r"gj.^y^'' indictment stated such direction as absolute, and it proved to be condi- sijocify tbo tional, it was held that the defendant must be acquitted. An indict- ^'."■*"'''^° TT1 1 •1-111/.1 given to tlio ment alleged that Anno liubcrt deposited with the defendant two agent, exchequer bills for 5001. each, with an order in writing for the defendant to invest the sums of money, to which the said bills related, in the pur- chase of government funds, and that the defendant unlawfully applied the said bills to his own use.(./) The written order was in terms, "for the purpose and with the intent of your investing it or the proceeds, in case of any unexpected accident, in the government funds, at a time when you shall judge it desirable to buy in." Lord Tentcrden, C. J., " This direction in writing does not sustain the allegation in the indict- ment, for the *allcgation is that the defendant was directed to invest *19G absolutely and unconditionally ; and the direction proved is only to in- vest, in case of any accident happening to Mrs. Hubert. Now no acci- dent has happened, and under these circumstances the defendant cannot be liable to punishment for not investing. The defendant must be ac- quitted. "(A-) *CnAPTEll THE NINETEENTH. *197 OP EMBEZZLEMENTS OF MINOR IMPORTANCE. Several enactments arc to be found amongst the statutes relating to Embezzle embezzlements of minor importance, and providing for their punish- ™P°^^ ?^^_ ment by a summary mode of proceeding. (a) iwrtiuue. The 55 Geo. 3, c. 137, reciting that persons received into public '^^^^^°- ^• work-houses for the relief the poor, pawn and dispose of their clothes, to embez- and the goods belonging to such work -houses, and that poor persons zlements relieved by having clothes and apparel given them by the officers of j.p^g^n^i,, parishes, frequently pawn and sell the same, and that by the laws then work- in force no punishment could be inflicted on them, or on the persons ""^^^' buying or receiving the same pawn ', first vests the property of such clothes, goods, &c., in the overseers for the time being ; and then enacts, that the overseers or other persons appointed for managing or providing for the poor, may cause all goods, clothes, linen, &c., and things belong- ing to such overseers or other persons, to be marked with the word " workhouse," and such other marks as they shall think proper, for identifying the parish, &c., by which the same shall have been pro- vided, (/^) and that if any person shall knowingly take in pawn, or rc- (/) Rex V. Ma?on,» P. & R., N. P. 22. A furllu'V point was that the case was not within the statute, as the word " money" was not found iit^t. (J) There was another count stating the order to be to invest in "government securities.'' h) Rex V. White,'' 4 C. & P. 4(3. (a) The fvl Geo. 3, c, 110, relating to embezzlements by Greenwich pensioners, and in- serted Iicrc in the last edition, was wholly repealed by the 10 Geo. 4, c. 29, s. 1. (b) By a subsequent part of the section, it is directed that such marks shall not be placed on articles of wearing api)arel so as to be publicly visible on the exterior of the same. » Eng. Com. Law Reps. xvi. 417. *> lb. xix. 2C8. 197 OF EMBEZZLEMENT BY OFFICERS, ETC., OP THE [BOOK IV. ceivG any goods, &c., provided for the use of the poor in the workhouse, or given to the poor by the overseers, &c., or any goods, &c., or mate- rials belonging to a workhouse ; or shall receive or buy any of the pro- visions provided for the poor of such workhouse, or shall deface the marks, &c., they shall forfeit, for every offence, not exceeding five pounds, nor less than one pound, upon conviction before a justice. And it further enacts, that if any persons shall desert, or run away from any workhouse, and carry with them any clothes, &c., or things as aforesaid, such persons being lawfully convicted before any justice of the peace, shall be forthwith committed to gaol or to the house of correction for three calendar months. And it provides that the marks, &c., on such things (being duly authenticated) shall be sufl&cient evi- dence of property in the overseers, or other persons appointed as afore- said. (c) An act for the warehousing of goods, the 3 & 4 Wm. 4, c. 57, s. 41, enacts, that " in case it shall at any time happen that any embezzle- ment, *waste, spoil, or destruction shall be made of or in any goods or merchandise which shall be warehoused in warehouses under the autho- rity of this act, by or through any wilful misconduct of any officer or officers of customs or excise, such officer or officers shall be deemed guilty of a misdemeanor, and shall upon conviction, suffer such punish- ment as may be inflicted by law in cases of misdemeanor." ((7) In a late publication a precedent is given of an indictment against a surveyor of highways, for using materials obtained for repairing the highways upon his own premises, for employing the public labourers on his own grounds, and for embezzling the gravel and other materials which had been procured for the parish. (e) This indictment does not appear to have been framed upon the provisions of any statute ; but to have charged the offence against the defendant as a misdemeanor at common law ; laying the acts to have been done by colour of his office, and in dereliction of his duty as surveyor of the highways. (/) Embez- zling, etc., ware- housed goods. *198 Embezzle- ment by a surveyor of the high- ways of materials procured for repair- ing them at the expense of the pa- rish. ^199 ^CHAPTER THE TWENTIETH. OP EMBEZZLEMENT BY OFFICERS A'SD SERVANTS OF THE BANK OF ENG- LAND, AND BY PUBLIC OFFICERS. Embezzle- SUBSEQUENTLY to the transaction in the case of Tyaite,(a) but prior ments by to the decision of the judges upon it, the 15 Geo. 2, c. 13, was passed; th^'^B^ k *^® twelfth section of which relates to embezzlements by officers and of England, servants of the Bank of England. f (c) 55 Geo. 3, c. 13t, s. 2. (d) And in case of a conviction the owner is to be repaid for his loss by the commis- sioners of excise. (e) 3 Chit. Crim. L. 6GG, were it is said, in note (jo), that this indictment was procured froni the crown office, and was used in^'TOJ) against one Robinson. (/) See vol. 1, p. 135, et scq. as to offences by persons in office. {a) Ante, p. 163. t [The provision in the Revised Statutes of Massachusetts, c. 126, s. 27, for the punish- ment of embezzlement committed by any cashier " or other officer" of a bank, includes em- bezzlement committed by the president and directors. Commonwealth v. Wyman, 8 Metcalf, 247.] Punish- ment. CHAP. XX.] BANK OF ENGLAND AND PUBLIC OFFICERS, ETC. 199 It enacts, ^' that if any officer or servant of the said company being 15 Geo. 2, intrusted with any note, bill, dividend-warrant, bond, deed, or any sccu- ^'^ " ofl-'g^,j.' rity, money, or other effects belonging to the said company, or having Af., of tie any bill, dividend-warrant, bond, deed, or any security, or effects of any ^"^^'^^■^^^^ other person or persons, lodged or deposited with the said company, or intrusted " with him as an officer or servant of the said company, shall secrete, y^'"" ^'5*^.: embezzle, or run away with any such note bill, dividend-warrant, bond, ic, or deed, security, money, or effects, or any part of them ; every officer or o*''^*" ''^- scrvant so offending, and being thereof convicted in due form of law, (.ccreting shall be deemed guilty of felony, and shall suffer death as a felon, with- tlic ^ame, out benefit of clergy." _ ff^'J^^^ The same provisions are repeated in the 35 Geo. 3, c. 6G, s. G, and 37 Geo. 3, c. 4G, s. G, (which makes certain annuities, created by the parliament of Ireland transferable, and the dividends payable at the Bank of England) with respect to effects deposited in pursuance of those acts. And there is a similar provision in the 24 Geo. 2, c. 11, s. 3, with respect to the officers and servants of the South Sea Company. The 4 & 5 Vict. c. 56, reciting the 15 Geo. 2, c. 13, s. 12, the 35 Cut Le Blanc, J., observed, that the word " securities" was used in the atatutu. statute as well as the word "eifccts;" which showed that the legislature intended that the statute should extend to other kinds of property than securities; the word "eflfects" being of a larger and move comprehen- sive meaning than the word " securities :" and he directed that the trial should proceed. The facts of the case were then proved; and the jury having found the prisoner guilty, the case was reserved for the consi- deration of the twelve judges. The important question submitted to tlicm was, whether, on the true construction of the statute 15 Geo. 2, c. 13, s. 12, these papers, which were issued as exchequer bills, did, in point of law, come within the words "effects, or securities," meant to be described in the act of parliament? After able argument by coun- sel, and much consideration by the judges, at different conferences, the result of their mature deliberation was communicated by Lord Alvan- ley, C. J., who stated that the judges had not been unanimous upon this point, but that a majority of them were of opinion, that the bills, or papers, were "effects or securities," within the true meaning of the act, and that the prisoner was properly convicted. After alluding to the great object of the legislature, in giving pretection and security to the Bank of England, his lordship proceeded to state that the papers in question were papers of value ; that though thoy might not, on the face of them, be of any descriptive legal value, yet that they *carried about *20'J them such a consequence, at least, as might make their preservation of infinite importance to the bank; that the government of the country was pledged to pay them even as they were, the holders of them having as strong a claim upon the justice of the government for such payment, as if they were technically correct in all their parts; and that they were, therefore, in the true meaning of the word, securities which might be rendered available to any person having the legal right to them. He then observed, that the papers in question were not less to be deemed effects ; which word was a very large and general term, and confined to no particular description of property, either in specie or value ; au " ^^^'T ta^Ij; order, or other security whatsoever entitling uuder the or evidencing the title of any person or body corporate to any share or ''valuable ^°*^*^^*^^' ^° ^^^ public stock or fund, whether of the united kingdom, or security." 0^ Great Britain, or of Ireland, or of any foreign state, or to any share (/) Aslett's (second) case, 0. B. 1803 and 1804, 1 New Rep. 1. 2 Leach, 958, and Russ & Ry. G7. It was also decided in this case, that the 15 Geo. 2, c. 13, was not repealed by 39 Geo. 3, c. 85. CHAP. XX.] BANK OF ENGLAND AND PUBLIC OFFICERS. 203 or interest in any fund of any body corporate, company, or society, or to any deposit iu any savings' bank, and every debenture, deed, bond, bill, note, warrant, order, or other security wliatsoever for money or for payment of money, whether of this kingdom or of any foreign state, and every warrant or order for the delivery or transfer of any goods or valuable thing, shall throughout this act be deemed for every purpose to be included under and denoted by the words "valuable security;" and that if any person so employed and intrusted as aforesaid shall embezzle or fraudulently apply or dispose of any such valuable secur- ity as aforesaid, he shall be deemed to have stolen the same within the intent and meaning of this act, and shall be punishable thereby in the same manner as if he had stolen any chattel of like value with the share, interest, or deposit to which such security may relate, or with the money due on such security, or secured thereby and remaining un- satisfied, or with the value of the goods or other valuable thing men- tioned iu such security." By sec. 3, '^it shall be lawful to charge in the indictment to be pre- j)ifl-creiit ferred against any offender under this act, and to proceed against him icts of em- for any number of distinct acts of embezzlement or of fraudulent appli- ,„,^,. [,y ^" cation or disposition as aforesaid, not exceeding three, which may have c'li^ir?;''!! in lieen committed by him within the space of si.K calendar months fro"! 'iiet'j'|','"nt'"' the first to the last of such acts; and in every such indictment where As to allc- thc offence shall relate to any money or any valuable sccurit}^, it shall ?'"*■'"" ""*' be sufficient to allcdge the embezzlement or fraudulent application or property disposition to be of money, without specifying any particular coin or <^n''^<'''''''- valuable security; and such allegation, so far as it regards the descrip- tion of the property shall *bc sustained, if the offender shall be proved *20-l to have embezzled any amount, although the particular species of coin or valuable security of which such amount was composed shall not be proved, or if he shall be proved to have embezzled any piece of coin or any valuable security, or any portion of the value thereof, although such piece of coin or valuable security may have been delivered to him in order that some part of the value thereof should be returned to the parly delivering the same, and although such part shall have been re- turned accordingl}^." By sec. 4, "in every such case of embezzlement or fraudulent appli- Property tc cation or disposition as aforesaid of any chattel, money or valuable sc-^.^ artla' curity, it shall be lawful in the order of committal by the justice of the king';*, peace before whom the offender shall be charged, and in the indictment to be preferred against such offender to lay the property of any such chattel, money, or valuable security as aforesaid in the king's ma- jesty." By sec. 5, "every offender against this act may be dealt with, indicted, Vcnue. tried, and punished, cither in the county or place in which he shall be apprehended, or in the county or place where he shall have committed the offence." An indictment upon this statute is sufficient, although it does not Tho indi.-t allege that the prisoner embezzled the money whilst he was employed J^oT^ajj'ege in the public service. A count charged that the prisoner, being at a tiio .in- certain time and place a clerk employed in the public service of ^cr J'J^j'^;^.'"'^"' majesty, and by virtue of such employment intrusted with the receipt been whilst and custody of money, the property of her majesty, did then and there *''•' r"80; receive into his possession, by virtue of such employment as such clerk, the scrviop 204 OF LARCENY AND EMBEZZLEMENT BY [BOOK IV. of the certain raouey, the property, &c., and did then and there feloniously em- crown, bezzle the same, and so did feloniously steal, take, and carry away the same ; and it was objected that the count was bad, as it did not allege that the prisoner embezzled whilst he was such clerk ; the allegation of his being clerk was confined to the fact of receiving the money, and did not necessarily extend to the time of the embezzlement. Coleridge, J., '< I am clearly of opinion that the indictment is good ; if the fact of the prisoner's continuing clerk be necessary to the offence, the indictment, grammatically taken, would perhaps contain a sufficient averment of that fact. But it is by no means clear that an embezzlement, (if such a case be possible) after a person ceased to be clerk or servant, of money received whilst he was such, would not be within the act. The statute, in its words, does not necessarily imply that he should embezzle whilst clerk or servant, and if it does so imply it, the indictment which pursues the same terms also implies it."((7) Evidence of acting in the capacity of an officer employed by the crown is sufficient to support an indictment under this statute, and the appointment need not be regularly proved.(A) *205 ^CHAPTER THE TWENTY-FIRST. OP LARCENY AND EMBEZZLEMENT BY PERSONS IN THE POST-OFFICE ; OF STEALING letters; AND OP SECRETING BAGS OR MAILS OP LETTERS. / These offences were formerly punished under the provision of the 5 Geo. 3, c. 25, the 7 Geo. 3, c. 50 ; the 42 Geo. 3, c. 81, and the 52 Geo. 3, c. 143 ; but the 1 Vict. c. 32, after the 1st of August, 1837, repeals the whole of the 5 Geo. 3, c. 25, "except so much thereof as relates to the postage on letters and packets conveyed by the post within the British dominions in America and the West Indies, and to any felony or other offence committed within such dominions;" the whole of the 7 Geo. 3, c. 50, " except so much thereof as relates to any felony or other offence committed within the British dominions in America and the West Indies;" the whole of the 42 Geo. 3, c. 81 ; and so much of 52 Geo. 3, c. 143, " as relates to the post-office." And the punishment of these offences is now regulated by the 1 Vict. c. 36, which came into operation on the 1st of August, 1837. (a) 1 Vict. c. That statute, by sec. 25, enacts, " that every person employed by or 36. Open-^Q(jgj. the post-office who shall, contrary to his duty, open or procure, or laying post Suffer to be opened a post letter, or shall wilfully detain or delay, or letters, a procure or suffer to be detained or delayed, a post letter, shall in Eng- meanor 1^^^ ^^^ Ireland be guilty of a misdemeanor, and in Scotland of a (g) Reg. V. Lovell, 2 M. & Rob. 236. See this case, ante, p. 165, as to the point whether a servant^'of the crown be a servant within the 7 & 8 Geo. 4, c, 29, s. 46, 47. (A) Rex V. Borrett,' 6 C. & P. 124 ; Rex v. Townsend,*" 1 C. & M. 178. See these cases in the next chapter, p. 213. ((/) The previous sections impose penalties on contravening the privilege of the post-office, retaining ship letters, abusing the privilege of newspapers, on masters of ships not taking letter bags, on carelessness and misconduct of persons engaged in conveying or delivering letter bags, letters, &c., on collectors of tolls demanding toll or stopping mails ; and provide as to the mode of proceeding for recovery of the penalties, &c. » Eng. Com. Law Reps. x.\v. 312. ^ lb. xli. 102. CHAP. XXI.] PERSONS IN THE POST-OFFICE. 205 crime and offence, and being convicted thereof shall suffer such punishment by fine or imprisonment, or by both, as to the court shall seem meet : provided always, that nothing herein contained shall extend to the open- Proviso, ing or detaining or delaying of a post letter returned for want of a true direction, or of a post letter returned by reason that the person to whom the same shall be directed is dead or cannot be found, or h^hall have re- fused the same, or shall have refused or neglected to pay the postage thereof; nor to the opening or detaining or delaying of a post letter in obedience to an express warrant in writing under the hand (in Great Britain) of one of the principal secretaries of state, and in Ireland under the hand and seal of the Lord Lieutenant of Ireland." *]jy sec. 26, " Every person employed under the post-ofiice who shall *20G steal, or shall for any purpose whatever embezzle, secrete or destroy a Embezzle- post letter, shall in England and Ireland be guilty of felony, and in (,f any let- Scotland of a high crime and offence, and shall, at the discretion of the ter or court, either be transported beyond the seas for the term of seven years, |(!iy„y.' or be imprisoned for any term not exceeding three years ; and if any such post letter so stolen or embezzled, secreted or destroyed, shall con- tain therein any chattel or money whatsoever, or any valuable security, every such offender shall be transported beyond the seas for life." ]3y sec. 27, " every person who shall steal from or out of a post letter Stealing any chattel or money or valuable security, shall in England and Ireland "°.°Yie^'^ ' be guilty of felony, and in Scotland of a high crime and offence, and ters, felony, shall be transported beyond the seas for life." By sec. 28, "every person who shall steal a post letter bag, or a post f^tealin;? letter from a post letter bag, or shall steal a post letter from a post-office, Jjr^etters^'* or from an officer of the post-office, or from a mail, or shall stop a mail sent by the with intent to rob or search the same, shall in Enarland and Ireland be '"f^^' guilty of felony, and in Scotland of a high crime and offence, and shall be transported beyond the seas for life." By sec. 29, " every person who shall steal or unlawfully take away Ftealin- a post letter bag sent by a post-office packet, or who shall steal or un- '*'"'^'' ''"^^ lawfully take a letter out of any such bag, or shall unlawfully open any gent by such bag, shall in England and Ireland be guilty of felony, and in Scot- rnekeis. land of a high crime and offence, and shall be transported beyond the '^ " - ' seas for any term not exceeding fourteen years." Sec. 30, " with regard to receivers of property sent by the post and Receivin;? stolen therefrom," enacts, " that every person who shall receive any prop'^rty post letter or post letter bag, or any chattel or money or valuable secu- post, anr. open at the sides, shall in England and Ireland be guilty of a misde- meanor, and in Scotland of a crime and offence, and being convicted thereof shall suffer such punishment by fine or imprisonment, or by both, as to the court shall seem meet.(c) Principal By scc. 35, " in the case of every felony punishable under the post- in the se- office acts, every principal in the second degree, and every accessory i:,ree, and before the fact, shall be punishable in the same manner as the principal accessories, in the first degree is by the post-office acts punishable ; and every acees- p'liuished. ^^^J after the fact to any felony punishable under the past-office acts, (except only a receiver of any property or thing stolen, taken, embez- zled or secreted,) shall, on conviction, be liable to be imprisoned for any term not exceeding two years ; and every person who shall aid, abet, counsel, or procure the commission of any misdemeanor punishable under the post-office acts, shall be liable to be indicted and punished as a principal offender." Endeav- By sec. 36, "every person who shall solicit or endeavour to procure onring to gjjy other person to commit a felony or misdemeanor punishable by the commission post-office acts, shall in England and Ireland be guilty of a misde- '>f any meanor, and in Scotland of a crime and offence, and beinc; thereof con- I'i'iine. . . . . . . victed, shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years." \'.iiue. Sec. 37, " for the more effectual prosecution of offences committed against the post-office acts," enacts, " that the offence of every offender against the post-office acts may be dealt with, and indicted and tried, and punished, and laid and charged to have been committed in England and Ireland, either in the county or place where the offence shall be committed, or in any county or place in which he shall be apprehended or be in custody, as if his offence had been actually committed in that county or place, and if committed in Scotland either in the high court of justiciary at Edinburgh, or in the circuit court of justiciary to be holden by the lords commissioners of justiciary within the district where such offence shall be committed, or in any county or place with- {//) This proTision is similar to the 42 Geo. 3, c, 81, s. 4, (now repealed) ; and would meet such cases as Rex v. Mucklow, R. & M. C. C. R. 160, ante, p. 58. (c) Sec. 33 relates to forging the hand-writing of the receiver-general in England or Ire- land, and will be found in chap. 38 ; and sec. 34 relates to the forgery of franks. CHAP. XXI.] PERSONS IN THE POST-OFFICE. 207 ia which such offender shall be apprehended or be in custody, as if his offence had been actually committed there ; and where an offence shall be committed in or upon or in respect of a mail, or upon a person engaged in the conveyance or delivery of a post letter bag or post letter, or in i-cspect of a post letter bag or post letter, or a chattel or money or val- uable security sent by the post, such offence may be dealt with and ■"^'inquired of, and tried and punished, and laid and charged to have been *208 committed, as well in any county or place in which the offender shall be apprehended or bo in custody, as also in any county or place through any part whereof the mail, or the person, or the post letter bag or the post letter, or the chattel, or the money, or the valuable security sent by the post in respect of which the offence shall have been committed, shall have passed in due course of conveyance or delivery by the post, in the same manner as if it had been actually committed in such county or place ; and in all cases where the side or the centre or other part of a highway, or the side, the bank, the centre, or other part of a river, or canal or navigation, shall constitute the boundary of two counties, such offence may be dealt with and inquired of, and tried and punished, and laid and charged to have been committed in either of the said counties through' which or adjoining to which or by the boundary of any part of which the mail or person shall have passed in due course of convey- ance or delivery by the post, in the same manner as if it had actually been committed in such county or place ; and every accessory before or Accessories after the fact to any such offence, if the same be a felony or high crime, ^" [elony • , . ,. 11- 11. , andpersons and every person aiding and abetting, or counselhng, or procuring the aiding and commission of any such offence, if the same be a misdemeanor, may be pounscling dealt with, indicted, tried, and punished as if he were a principal, andmcauor.' his offence laid and charged to have been committed in any county or place in which the principal offender may be tried. "(^A By sec. 39, "where an offence punishable under the post office acts Admiralty shall be committed within the iurisdiction of the admiralty the samei^^"''^'*^' . . '' lion. shall be dealt with and inquired of and tried and determined in the same manner as any other offence committed within that jurisdiction." By sec. 40, " in every case where an offence shall be committed in Property respect of a post letter bag or a post letter, or a chattel, money, or a ^^®^"* to'be'" valuable security, sent by the post, it shall be lawful to lay in the in- laid in tho dictment or criminal letters to be preferred against the offender the pvo- P'^-'"^'»stcr perty of the post letter bag or of the post letter, or chattel or money or the valuable security sent by the post, in the postmaster general ; and it shall not be necessary in the indictment or criminal letters to allege or to prove upon the trial or otherwise that the post letter bag or any such post letter or valuable security was of any value ; and in any in- (il) Sec. 38 relates to bail in Scotland. It was formerly decided that an indictment for robbing a mail bag of letters must be laid in the county where the letters were actnnlly taken, in order to bring the case within the statute of 7 Geo. 3. c. 50, s. 2 ; and that it could not be laid in the county where the prisoner was only in possession of them ; the jury hav- ing found that the letters were taken from the bag in some other county, through whicli the mail had passed. Tiiomas's case, 0. B. 1794. 2 Leach, G34. 2 East, P. C. c. IG, s. 30, p. 605. It was argued in this case that there was a new taking and offence in the cotinty where the prisoner had possession of the letters ; but upon this It is observed that tlio statute 1 Geo. 3, c. 50, s. 2, did not make the stealing of letters generally a capital oO'encc, but the stealing them from places particularly specified ; which is a definite act, local in its nature, and cannot be extended, by construction, to a new taking in every county into which the thing stolen is convej'cd, as in the case of simple larceny. 2 Knst. P. t'. c. 16, s. 39, p. COG. confine ment. :i08 OF LARCENY AND EMBEZZLEMENT BY [bOOK IV. dictment or iu any criminal letters to be preferred against any person employed under the post office for any offence committed against the *209 post office acts, it shall be lawful to state and *allege that such offender was employed under the Post office of the United Kingdom at the time of the committing such offence, without stating further the nature or particulars of his employment." Punish- I3y sec. 41, " every person convicted of any offence for which the meats. punishment of transportation for life is herein awarded shall be liable to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years j and every person convicted of any offence punishable according to the post office acts by transportation for fourteen years shall be liable to be transported for any term not exceeding fourteen years nor less than seven years, or to be imprisoned for any term not exceeding three years." Power to By sec. 42, "where a person shall be convicted of an offence punish- labour or ^^^® under the post office acts for which imprisonment may be awarded, solitary the court may sentence the offender to be imprisoned, with or without hard labour, in the common gaol or house of correction, and may also direct that he shall be kept in solitary confinement (cZc/) for the whole or any portion of such imprisonment, as to the court shall seem meet."(e) Interpreta- gee. 47, " for the interpretation of the post-office laws," enacts, " that ause. ^-^^ following terms and expressions shall have the several interpreta- tions hereinafter respectively set forth, unless such interpretations are repugnant to the subject, or inconsistent with the context of the pro- visions in which they may be found; (that is to say,) the term British letter shall mean a letter transmitted within the United Kingdom : and the term British newspapers shall mean newspapers printed and pub- lished in the United Kingdom, liable to the stamp duty and duly stamped ; and the term British postage shall mean the duty chargeable on letters transmitted by post from place to place within the United Kingdom, or if transmitted to or from the United Kingdom, chargeable for the distance which they shall be transmitted within the United Kingdom, and including also the packet postage, if any ; and the term Colonial letter shall mean a letter transmitted between any of her majesty's colonies and the United Kingdom; and the term Colonial neicsjjapcrs shall mean newspapers printed and published in any of her majesty's dominions out of the United Kingdom; and the term con- vention p)osts shall mean posts established by the postmaster general under agreements with the inhabitants of any places; and the terui double letter shall mean a letter having one inclosure; and the teiui double postage shall mean twice the amount of single postage ; and the term East Indies shall mean every port and place within the territorial acquisitions now vested in the East India Company in trust for her majesty, and every other port or place within the limits of the charter of the said company, (China excepted) and shall also include the Cape [dd) By the 1 Tict. c. 90, ?. 5, " it shall not be lawful for any court to direct that any of- fender shall be kept in solitary- confinement for any longer period thau one month at a time, or than three months in the space of a j'ear. (e) Sec. 43 gives a power of distress for the recovery of sums due for postage, not exceed- ing 20Z, in the United Kingdom or elsewhere in her Majesty's dominions. Sec. 44 provides in what way duties for postage may be sued for. Sec. 45 gives the forms of conviction, &c. Sec. 46 regulates the mode of proceeding in actions. CHAP. XXI.] PERSONS IN THE POST-OFFICE. 209 of G 00(1 Hope ; auJ the term express shall mean every kind of convey- ance employed to carry letters on behalf of the post-oflice other than the usual mail ; and the term /orci) But where an indictment stated that the prisoner, being employed under the post-office, stole a post letter containing a sovereign, and there were counts charging the embezzling the letter and money, and a count for stealing a sovereign, the property of the postmaster general ; and it appeared that the prisoner was a letter-carrier, and in consequence of suspicions, an assistant inspector of the letter-carriers inclosed a marked sovereign in a letter, and sealed it and marked it as if it had been put into the post-office in the regular way as a paid letter; and while the letters were being sorted at the office where the prisoner was employed, the letter was placed in the heap of letters which he was about to sort, (h) It was in the following form : — Post Bill. No. C12Y. Rirminffliam, nth Feb. 1Y8.1. Sir \Vm. Lemon, Bt. and Co., bankers, London, pay 5 Gs. to Mr. Riclid. -Moore or be.arer, on dcm*'. value rccJ. Kobt. Coalcs. Five Gs. Entd. R. Moore. As to this being a po.st bill, it was observed, that the words of the act were ^^ Bank post bill." (o) Shepherd's case, Mich. T. ITSI. 2 East, P. C. c. 16, s. 22, p. 582. (;>) Willoughby's case, AVarwick Lent Ass. 1783, East. T. 1783. 2 East, P. C. c. 10, s. 22, p. fj81. {PP) l^t^g- *'• Mence,» 1 C. '^^y stamp upon it, contrary to the 31 Greo. 3, c. 25, s. 4, it was holden in fact that this was not a draft for the payment of money within the 7 Geo. Maidstone ^> ^- ^^} ^' 1- ^hc objections submitted on behalf of the prisoner at the •without any trial Were, first, that a draft on a banker or bill of exchange not stamped SmTrary to Pursuant to the directions of the 31 Geo. 3, c. 25, and 37 Geo. 3, c. 136, ii.«tampact, could not be received in evidence for any purpose; but if, on the au- was taken thority of decided cases, it should be thought admissible, then, secondly, v.intof tiie that such a draft or bill of exchange, if it could be so called, could not pust-ofHce |j(3 tlie subject of larceny, inasmuch as it could not be of any value letter in- whatever; and, thirdly, that being so invalid, it could not be considered trusted to as a security for the payment of money within the 2 Geo. 3, c. 25, s. 3, was liolden ^^^® secreting of which, when sent in a letter, came within the meaning tiiat tiiis of the 7 Geo. 3, c. 50. The note was, however, received in evidence draftlbrUie ^^ ^^® court ; and the jury found the prisoner guilty. But the case was payineut of reserved for the consideration of the twelve judges, and argued before "?"^^' .. them at considerable length. It was contended, on behalf of the pris- c-riK ?,, e. oner, that the paper writing m question, purporting to be a draft for ^0. payment of money, was not in law a draft for payment of money, within the 7 Geo. 3, c. 50, inasmuch as it was not stamped pursuant to the stamp acts •,{q) and that, being unstamped, it was not a chose in action, the stealing of which could be the subject of larceny within the 2 Geo. -^'^ 2, c. 25, s. 3,(r) for without a stamp it was of no value. *That the 7 Geo. 3, c. 50, either creates a new felony, or takes away the benefit of clergy from an old offence; and that, in either case, the instrument se- creted or stolen must be of some value ; whereas the draft in question was of no legal value, being a draft drawn contrary to the directions of the legislature, who by the stamp act had declared that a draft so drawn should not '< be pleaded or given in evidence in any court, or admitted (qq) Reg. v. Rathbone,* 1 C. & Mars. 220. (q) 31 Geo. 3, c. 25, and 37 Geo. 3, c. 136. (r) Repealed by 1 Wm. 4, c. 60, s. 31. * Eng. Com. Law Reps. xli. 124. CHAP. XXI.] PERSOXS IN THE POST-OFFICE. 215 in any court to be good, useful, or available, in law or equity. "(s) And several cases of forgery were cited, in Avbieh it had been liolden, that a forged order for the payment of money, or delivery of goods, must be such as, if genuine, would be compulsory, and might be legally en- forced. (/) It was also argued, that even if the paper writing in question were admissible in evidence on this indictment, though not stamped according to the directions of the statute, yet that it did not prove the allegation in the indictment that the said draft " then and there was iti force, and the property of, See., and the sum of money made payable and secured thereby unsatisfied ;" that this allegation was material and not proved, but on the contrary absolutely negatived by the evidence ; inasmuch as, for want of a stamp, the writing in question appeared to be an instrument which could not bo enforced, which could not import any property in the drawer, which could not secure any sum of money, and on which of course nothing could be due and unsatisfied. For the crown it was contended, that though a draft not stamped cannot be given in evidence in any action brought thereon to recover its value, yet that it is not void and of no effect to all intents and purposes ; and cases were cited in which it was decided that a forged draft drawn on unstamped paper may be given in evidence, not only on an indictment for forgery, but in an action for the recovery of the penalty. (?*) That though in case the indictment had been framed for larceny, on the 2 Geo. 2, c. 25, it might have been questionable whether the prisoner could have been legally convicted, as that statute does not mention " a draft for the 2iayment of monrij" eo nomine, and as the instruments therein enu- merated are such as, by retaining a value, may be legally in force for the money due and unsatisfied upon them ; yet in this case, as the in- dictment was framed entirely upon the 7 Geo. 3, c. 50, it charged an oflfence quite different and distinct from that of stealing a chose in action under the 2 Geo. 2, c. 25 ; the object of the legislature in passing the later statute 7 Geo. 3, c. 50, being to secure the conveyance of every instrument, whether immediately valuable or not, that might be sent by the post, and to protect the revenue arising from the postage of letters ; and the two statutes being therefore made with different objects in view, and not in j^ari materid. And with respect to the objection, that the allegation in the indictment that the draft " was in force" was not proved *it was answered that it was an unnecessary allegation, and need *216 not be proved. In the course of the argument. Lord Eldon, C. J., observed, that the legislature had not made it felony to secrete any letter, but to secrete any letter containing any of the particular securi- ties specified in the statute. (r] The judges were all of opinion that the (s) 31 Geo. 3, c. 25. (t) Mitchell's case, Fo.^t. 119, Lockelfs case, 1 Leach, 9 k 2 East, P. C. c. 19, s. 38, p 940. Williams's case, 1 Leach, 114. 2 East, P. C. c. 19, s. 37, p. 937. Ellor's case, 1 Leach 323. 2 East, P. C. c. 19, s. 37, p. 938. Clinch's case, 1 Leach, 540. 2 East, P. C. ibit!. and Moffatt's case, 1 Leach, 431. 2 East, P. C. c. 19, s. 45, p. 954. (u) Ilawkcswood's case, 1 Leach, 257. 2 East, P.O. c. 19, s. 45, p. 955. Reculist's casp 2 Leach, 703. 2 East, P. C. c. 19, s. 45, p. 956. And it was observed tliat Moftatfs cast> ante, note (<), proceeded upon the words of 15 Geo. 3, c. 51, and 17 Geo. 3, c. 30, whicli en- act, that all notes drawn contrary to the directions of those acts shall be void. For the case on this subject sec pout, chap, on Forgcrij. ((') And in 2 Leach, note (a), it is observed, that there does not appear to be any clause in cither of the more recent statutes, 42 Geo. 3, c. 81, or 51 Geo. 3. c. 143, by wliich a ser- vant of the post-office, who is intrusted with a letter, may be punished for secrelinp, embez- zling, or stealing such letter, unless it contains some, or one, or part of the securities men- tioned in the statutes. sorter, ^^^ fourth counts as a person " employed in the business relating to the r General Post-office •/' and upon the evidence it appeared that the pri- 216 OF LARCENY AND EMBEZZLEMENT BY [bOOK IV. conviction was wrong ; that the draft not being stamped was of no value, nor in any way available, and therefore was not a bill or draft within the act. (if) In a case where the letter embezzled was described as having con- tained several notes, it was held to be sufficient to prove that it coa- . tained any one of them ; and also that if the instrument is upon the face of it, a note, the maker's signature need not be proved. In the same case it was also held, that upon an indictment stating the prisoner to have been employed in two branches of the post-office, proof of his having been employed in either is sufficient. (,/;) Rauson's A case has been mentioned in a former part of this work,(y) where cretin" a " ^^poQ ^n indictment on the first section of the 7 Geo. 3, c. 50, it was letter con- holden, that a servant of the post-office, employed as a facer of letters, ^Hrd notes ^^^^ secretcd a letter containing the j)at(Z notes of a country bank, which of a couuty Were in the course of being conveyed from the London bankers, who brink, hold- pr^jjj w^Qia, to the country bankers, for the purpose of being re-issued, within tho bad committed an oflFcuce within the statute ; as the notes, though not 7 (}eo. 3, c. rc-issued, were considered as retainin"; the character and fallins within 50 . the description of promissory notes.(:i;) A person Upon an indictment on the 7 Geo. 3, c. 50, the charge was laid IwVeount's^ ^g^i^^t the prisoner, in the first and third counts, as a person " employed as a charger in sorting and charging letters in the post-office;" and in the second and so: and in other i-ounts, as gouer was only a sorter and not a charger of letters, whreupon the jury employed Were directed to convict him on the second and fourth counts only. But in the post- an objection was afterwards taken that, as the prisoner had been acquit- acnui'tted ^^'^ ^^ ^^^ counts which charged him as a sorter and charger, and he on the did not appear to be a person employed by the post-office in any other which he ^^^i^siness but that of sorting, which is one of the employments particu- was indict- larly specified in the statute, he could not be convicted on the second ed as a j^^,^ fourth couuts. And this objection beina; submitted to the conside- 'and sorter, ration of the judges, they thought the objection valid : but they inclined cannot he to think that the jui'y might have convicted the prisoner on the first and on the other third couuts, by a special finding that he was a sorter only.To) two counts. Where an indictment upon the 7 Geo. 3, c. 50, s. 1, charged the pri- ■^^ ' soner as a person employed in the business of the post-office as a *post- ease?°" '^ ^^Jf ^^-j "^'^^^ Secreting, &c., certain bills of exchange, contained in a Toints as to letter sent by the post, which came to his possession in his said employ- lciip°ion of '^^*^^^*'' ^* ^^^ holden not to be a vai-ianee to describe such letter in the the letter, indictment as one "to be delivered to Messrs. B., N., and H. ; as the .jind of the .^yord Alessrs. was frequently added to their address in the direction of creted. letters, and other papers received on business, though the parties them- selves, in drawing or indorsing bills, making out invoices, &c., wrote B., N., and H., without ever adding 3Iessrs. as part of their description. And it was considered that the acceptance of bills, directed to them in that manner, would be a using of that firm. It was also holden to be (w) Pooley's case, 2 Leach, 887. 3 Bos. & Pull. 311. Russ. & Ry. 12. See Rex v. Yates, R. & M. C. C. R. 170, ante, p. 79. (x) Rex V. Ellins, Mich. T. 1810, Russ. & Ry. 188. (y) Ante, p. 79. (z) Ranson'g case, 2 Leach, 1090, Russ. & Ry. 232. And see Clarke's case, ante, p. 74. (a) Shaw's case, 0. B. 1771, cor. the recorder, and Mich. T. 12 Geo. 3. 2 Black. Rep. 789. 2 East, P. C. c. 16, s. 21, p. 580. 1 Leach, 79. *2 Dawson's CHAP. XXI.] PERSONS IN THE POST-OFFICE. 217 sufficient to allege, in part description of the bills 80 secreted and stolen, that they were subscribed by A. and 15., without saying that they were drawn or made by thein.(i) Where an indictment on the 52 Greo. 3, c. 143, alleged that a letter was "to be delivered to a certain person atTurvey," and the letter was directed to Mr. P. at Turvcy-house, which was in the pari.sh of Turvr-y about a quarter of a mile from the village of that name, it was held sufficient; for it was to be delivered at Turvey-honse tliatwas a delivery at Turvey, as Turvey-housc was in the parish of Turvey.(r) Though the post-office marks in town or country, proved to be such, Kvidence. are evidence that the letters, on which they appear, were in the office to which those marks belong at the dates which they specified; yet a mark of double postage having been paid on a letter is not of itself evi- dence that the letter contained an inclosure. Upon a case reserved the judges held a conviction wrong, on the ground that there was not suffi- cient evidence of a double letter having been put into the post-office ; the clerk who put it into the office, paid the postage, and wrote " post paid 2s.," not having been called. (fZ) The offence of embezzling moneys received for the postage of letters Embezzlinj,' was made punishable by the 5 Geo. 3, c. 25, s. 19, and the 7 Geo. 3, c. *Jf^^P°«""" 50, s. 3. But these statutes are repealed by the 1 Yict. c. 32, and the 1 Vict. c. 36, contains no provisions for the embezzlement*of moneys received for postage. (e) In a case where the prisoner was indicted for secreting a letter, con- Sloper's taining a bank-note for ten pounds, tbc jury found specially that the ';'^^°; '^^' prisoner was an officer employed in the business of the post-office, in letter with stamping and facing letters; that he secreted the letter in question, »"^^'°t *** while in the execution of his office, without opening it, and without ^ijppog,.,j,,.. knowing that the ten pound bank-note was contained in it ; and that he secreted it with intent to defraud the king of the postage thereof, which had been paid. The determination of the judges upon this case was never communicated. (y) But it is suggested that the ca?e *21H ♦seems to fall within one of the offences provided for by the 5 Geo. 8, c. 25, s. 19 ; though some difficulty might have arisen in bringing it within the corresponding clause, 7 Geo. 3, c. 50, s. 3, because it ap- peared that the letter had not been destroyed, but was found in the prisoner's custody. (^) In a case upon the 7 Geo. 3, c. 50, s. 2, it appeared that the prisoner, Poarcc't intending to steal the mail bags, went one night, about the usual time, cnso;priso- to the post-office at High Wycombe ; and, pretending to be the mail ed the ni:ii! guard, obtained, from the person who was there, the bags of letters, ^^S^ f""- which were let down to him from out of the window of the post-office the delivery (f>) Dawson's c.ise, cor. Chambre, J., Lancaster Spr. Ass. 1801, and beforo the Judges. Trin. T. 1801, 2 East, P. C. c. IG, s. 39, p. G05. (c) Rex V. Pearson,* 4 C. & P. 572, Littledalc and Bosanquct, Js. (d) Ilex V. Pluuier, ITil. T. 1811, Kuss. & Ry. 204. It sccnia to have been considered also in this case, that though a letter found upon the prisoner might properly be read, it was not evidence of the facts stated in it, and that such facts must, therefore, be proved by other evidence. (e) The practice recently has been to indict in such cases under the 2 Wni. 4, c. 4, ajifr, p. 203. (/) Sloper's case, cor. Blackstone, J., O. B. 17T2. 2 East, P. C. c. 16, s. 2.1, p. 583. 1 Leach, 81, in which Last authority it is said, that the prisoner remained in Newgate till July, 1777 ; and that in the following session, Sept. 1777, there was no account of him. (/■) 2 East, P. C. c. 16, s. 23, p. 583; and see Howatt's case, infra. » Eng. Com. Law Reps. xix. 533. Vol. il— 15 218 OF LARCENY AND EMBEZZLEMENT BY [bOOK IV. of a person ]jy a string, from whence he took them, and immediately made off. offi!;o\ohtm UpoQ these fiicts the prisoner was convicted on a count in the indict- whiloonthoment for stealing the letters out of the post-office; and the case being outsiile;^^ submitted to the consideration of the twelve judges, they were all of holdon to bo opinion that the conviction was right; and that the artifice of the pri- a stealing goner, in obtaining the delivery of the letters, in the bag, out of the post-office, house, was the same as if he had actually taken them out himself. (r/) In this case the property did not pass ; as the postmaster had no pro- perty in the mail bags to part with.(^/i) Seryants of It was supposed to have been decided that the second section of the the post- Y (Jqq^ 3 (,_ 5Q (jj^ jjQ^ extend to servants of the post-office, (i) But the office may ' .... , . ,. at-- be convict- report of such decision has been mentioned as incorrect. And it is ed of steal- dear that a person might be convicted under the third section of the 52 the post- Greo. o, c. 148, for stealing a letter, though such person had an employ- office, ment in the post-office, especially if such letter did not come to him in the course of his employment. The prisoner was employed by the post-office to deliver letters, and not to sort them ; but he did sort them, when regularly he ought not to have done so, and, whilst sorting, stole a letter. The indictment charged him as a sorter with secreting, and as a common person, (under sec. 3, of the 52 Geo. 3,) with stealing : but as it appeared that he ought not to have been allowed to sort, he was acquitted of secreting, and it was then urged that he could not be convicted under the third section, because he was a person employed in the post-office, and the case of Rex v. Pooley was cited. A case being reserved, the judges stated that the report of Rex v. Pooley was as to the point in question mistaken ; that Rex v. Simpson, cor. Lord Ellen- borough, Thomson, B., and Lawrence, J., 0. B. 1810, was in point the other way ; and that a man who stole was not less a person stealing because he had some employment in the office ; and that upon a contrary construction if a person in the office stole, but not in the course of his employment, he would be unpunishable. (y) *219 Previously to the last case it had been holden that a letter-carrier Howatt's taking letters out of the post-office, intending to deliver them to the ^^^^' *owners, but to embezzle the postage, was not indictable for stealing that a let- such letters, under the second section of the 7 Geo. 3, c. 50. The pri- ter carrier ggner was a letter-carricr at the post-office, at Manchester ; he contrived ters out to obtain possession of the letters in question before they were counted of the office out, and delivered to him, by any of the clerks, in the usual way; and to deliv"? ^^ ^^^ detected with them in his pocket, in the letter-carrier's room, them to the which was near to the clerk's office. But it appeared from cireum- ownersbut g^g^^ggg^ ^nd the jury so found, when they convicted him of the offence zle the of stealing the letters, " that he intended to have delivered the letters, (ff) Pearcc's case, Ilil. T. ITOS. 2 East, P. C. c. 16, s. 39, p. 603, (h) This was noticed as difiFering the case from that of Atkinson, 2 East, P. C. c. 16, s. 104, p. 673. Ante, p. 34. (i) Rex V. Pooley, Russ. k Ry. 31. 2 Leach, 904. 1 East, P. C. Addenda, xvii. 3 Bos. & Pul. 315. Skutt's case, 0. B. July Sess. 1774, as stated in Pooley's case, 2 Leach, 904. A different objection is mentioned as the ground of the acquittal in Skutt's case in another report of it, (1 Leach, 106. 2 East, P. C. c. 16, s. 22, p. 582,) namely, that the letters con- tained money, and not any security relating to the paymeut of money mentioned, in the statute. (y) Rex V. Brown, East. T. 1817, MS. Bayley, J., and Russ. & Ry. 32, note (a). And see Rex «'. Salisbury,* 5 C. & P. 155, where Patteson, J., held that a letter carrier might be con- victed of stealing a letter out of a post-office upon an indictment under the 52 Geo. 3, c. 143. * Eug. Com. Law Reps. xxiv. 253. CHAP. XXI.] PERSONS IN THE POST-OFFICE. 219 and only to have embezzled the postage. Upon the case being after- postage, wards submitted to the consideration of the twelve judges, two of them, -^ij^jJIable at first, suggested that as the act of the prisoner deprived the crown of umier the its lien, though there was no intention to defraud the true owner, it was^ ^f,''- ^- ' C uU S lb as much larceny as stealing from a pawnbroker; and that the clause in (juestion was positive, without adverting to the view with which the act was done. On the other hand, it was observed that the two first clauses of the statute, sec. 1 and 2, respected the safe carriage of letters, and seemed to be confined, as appeared further by the preamble, to a taking to the prejudice of the owner : and that the third clause, sec. 3, was for the protection of the revenue ; which went to show that the legislature did not mean to protect the revenue by the antecedent clauses. And it was also observed that if the letters had been so taken by those to whom they were directed, it would not have been within the clause under consideration : though, if it were a question of larceny at common law, it would be equally larceny in the owner. And this being an in- dictment on the statute, and not for taking the goods of such an one, as charged in an indictment for stealing the goods of a bailee, all the judges ultimately agreed that the conviction was wrong, on the finding of the jury, which negatived a stealing within the act. (A") Secreting a letter containing a bill of exchange was not within the 52 Secreting a Geo. 3, c. 143, s. 2, if the object was to deliver the letter with its con-^*^'|';'' '" tents, but to cheat the revenue of the postage. The first count stated obtain the the prisoner to be employed in stamping letters, and that he secreted apostate letter containing bills of exchange. The second count charged the pri- ^crt"dng soncr with stealing the bills. The prisoner was a stamper in the Lon- within the don post-office, and having been seen slip a letter into his coat pocket, j]!(°'j^' was desired to empty his pocket, which he did, and thereout produced the object eight letters, one of which was the letter stated in the indictment; itj^"^ '° ''®' was a letter written from America, and put in the post-office at Liver- letter and pool, marked "Liverpool ship letter;" from whence it arrived that <^'"'^<^'''''° morning, directed "Mr. Samuel Williams, 13, Finsbury Square." It ^^"^^ ^^' was and had been taxed as a double letter, and the sum of three shil- lings and twopence marked upon it as the amount of postage, and had been afterwards stamped by the prisoner, whose duty it was, after stamp- ing it, to deliver it to the sorter. The other seven letters were single letters, and it was sworn that they could be of no use to the prisoner, but to enable him to receive the postage. AVhen the prisoner produced tlie letters, he was asked if he had any explanation to give, and he said he had taken them to cof/, which is a cant phrase for taking them as niissorted letters to get *the postage. The jury found the prisoner *220 guilty, but added that tlioy thought the secreting the letter was only for the purpose of appropriating the postage ; and upon a case reserved, the judges were of opinion, that as the statute extended to such letters only as contained valuable documents, the security of the documents was the object contemplated by the legislature, and as the prisoner had no intention to put these documents in hazard, or to prevent the person for whom they were intended from receiving them, the case, though within the letter, was not within the spirit of the act, and the conviction was therefore wrong. (?A (A-) ITowatt'g case, Lancaster Sum. Ass. 1795, and Mich. T. 1795. 2 East, P. C. c. IG, s. 39, p. G04. (n) Rex V. Sharpe, R. & M. C. C. R. 125. Sect. 26 of the 1 Vict. c. 36, seems framed to 220 OF STEALING OR SECRETING LETTERS, ETC. [bOOK IV. "Roceiv- The 52 Geo. 3, c. 143, s. 3, made it felony to steal "from or out of mg-house. _^^^ post-officc or house or place for the receipt or delivery of letters ; office, and and under that act it was held that a receiving-house was not a " post- stealing office," but "a place for the receipt of letters," and that the whole shop, out of a and not merely the letter-box, was to be considered "a place for the re- post-office, ceipt of letters ;" and that in order to constitute a stealing from or out of such place, the letter must be carried out of the shop, and therefore if a person took a letter and stole its contents in the shop, that was not an ollence within that section of the act. The indictment in some counts charged the prisoner with stealing a letter from and out of a certain post-office, and it appeared that the prisoner was servant of Mr. Abram, law stationer, at a shop in Middle Temple Lane, which was a receiving- house of the general post-office. The letter in question was taken to Mr. Abram's shop, but whether it was put in the letter-box, or given to a person in Mr. Abram's shop, was not clearly proved. One of the notes contained in the letter was afterwards found in a boot, in a room of a house opposite to Mr. Abram's shop, and the prisoner acknow- ledged having put this note into the boot : it was held that this shop was not a post-office within the meaning of the act; but that it was " a place for the receipt of letters ;" that the whole room was the place for receiving letters, and not the mere box, and that if a person went into the shop, and laid a letter on the counter, that was sufficient : but that in order to convict the prisoner of stealing the letter out of the post-office, the jury must be satisfied that he took the letter out of the shop, and it was not sufficient if he opened it in the shop and took its contents out in the shop.(o) Pigeon- It has been held that letters put into pigeon-holes in a post-office for holes for private individuals, are still within the post-office. On an indictment letters in a ou the 52 Geo. 3, c. 143, for stealing leters from the post-office at Liver- post-office, poolj it appeared that at the post-office there is a set of pigeon-holes, into which letters for certain merchants, who pay to the postmaster a guinea a year, were placed immediately on their arrival ; and by this means those merchants were enabled to get those letters sooner than they otherwise would do ; it was objected, that as soon as the letters were deposited in the pigeon-holes they ceased to be in the post-office, and consequently, that the indictment for stealing from the post-office, could not be sustained; but the objection was overruled. (p) *2'21 *The 52 Geo. 3, c. 148, s. 2, contained two clauses, one relating to letters, &c., with which persons employed under the post-office had been " intrusted in consequence of such employment," the other relating to letters, &c., which in any other manner came into the possession of such persons " whilst so employed." The prisoner, who was indicted under this act for stealing a letter from the post-office at Dursley, was employed by the postmistress at Dursley to carry letters from Dursley to Berke- ley, and the evidence tended to show that he had stolen a letter, sent from Cardiff and directed to Dudley, but which had been missent to Dursley, Patteson, J., " I think this letter cannot be said to have come to his hands in consequence of his employment, because he, as a letter meet this and the preceding case, as it makes the offence to secrete, " for any purpose what- ever," a post letter, without reference to its contents. C. S. G. (o) Rex V. Pearson,' 4 C. & P. 572. Littledale and Bosanquet, Js. (p) Brett's case, 1 Lew. 228, Vaughan, B. * Eng. Com. Law Reps. xix. 533. CHAP, XXII.] OF LARCENY AND EMBEZZLEMENT, ETC. 221 carrier from Durslcy to Berkeley, would not have a letter addressed from Cardiff to Dudley come to his bands in the course of his duly. However the second section of the act goes on 'whilst so employed.' The ques- tion then is, whether those words relate to time only, or whether they make it essential that the letter should come to his liands in the course of his duty. I am inclined to think that they relate merely to time, because the words < in consequence of such emplo3'ment' arc used in another part of the section. "(• unstamped on unstamped paper, it was objected on behalf of the prisoner that it paper may could not be received in evidence, even as a medium to show that he ^^ received had stolen the letter; but the court overruled the objection, being of for coiiate- opinion that the draft, though unstamped, might be received in evi- '■a' P"r- dence for collateral purposes though not for the purpose of recovering fo'^proVo the the money contained in it. And they relied upon the cases in which stealing, it had been decided that such an instrument might be given in evi- ^^' dence on an indictment for forging it, or in an action to recover the penalty. (s) *CHAPTER THE TWENTY-SECOND. *222 OF LARCENY AND EMBEZZLEMENT OF NAVAL AND MILITARY STORES, The 4 Geo. 4, c. 53, enacts, '^That every person who shall be law- ' '■■"^- "i- fully convicted of stealing or embezzling his majesty's ammunition, ^'.^Vstoau'^' sails, cordage, or naval or military stores, or of procuring, counselling, ing or cm- aiding or abetting any such offender shall be liable, at the discretion of '^'^''^""^ o 1111, ammuui- the court, to be transported beyond the seas for life, or for any term tion, or not less than seven years, or to be imprisoned only, or to be imprisoned ot''er naval and kept to hard labour in the common gaol or house of correction for stores, may any term not exceeding seven years."(o) ^^ trans- Some provisions respecting the embezzlement of naval stores, wheni^^ec'l st. ('/) Rex V. Salisbury,* 5 C. & P. 155, and MSS. C. S. G. Tlic new act omits the distinc- tion contained in the 52 Geo. 3, c. 143. (/•) Rex I'. Robin.son,'' 2 Stark. N. P. C. 485, Wood, B. (.«) Poolcy's (second) case, 0. B. 1801. 2 Leach, 900, S. C. 1 East, P. C. A'lJnula, xvii., and 3 Bo3. & Pul. 315. And see Morton's case, and Reculist's case, post, Chap on Forgery. (a) All the other provisions of this statute arc repealed by the 7 & 8 Geo. 4, c. 27. No provision is made by the 4 Geo. 4, for (he pnnishnient of accessories after the fact, they are therefore punishable under the 7 & 8 Geo. 4, c. 28, s. 8 and 9, and 1 Vict. c. 90, s. 5. See ante, p. 135, note (A). » Eng. Cora. Law Reps. xxiv. 253. ^ lb. iii. 443. 222 OF LARCENY AND EMBEZZLEMENT, ETC. [BOOK IV. 2, c. 25, 9 under the value of twenty shillings, were made by the 1 Geo. 1, stat. ?o'°s.^5.'' -' «• ^^'^> ^"*^ ^^''^^ statute was repealed by the 2 Wm. 4, c. 40, s. As to Uio 35. (i) apprdieii- The 9 Geo. 3, c. 30, s. 5, relates to the apprehension of persons steal- son*8 steal- " ^"S or embezzling naval storcs. It enacts <' that for the more speedy ing 01- em- and effectual bringing to justice persons guilty of stealing or embezzling vMl"stoi-cs ' " ^^^^ majesty's naval stores, the treasurer, comptroller, surveyor, clerk of the acts, or any commissioners of the navy for the time being, may from time to time in all places whatsoever, exercise the office of a jus- tice of the peace to all intents and purposes, in causing any person who shall be charged with stealing or embezzling of any naval stores, the property of his majesty, to be apprehended, committed, and prosecuted for the same ; and it requires all constables and other officers to execute and obey all warrants of such persons, touching any of the matters and things thereinbefore contained." Provision is made by the Annual Mutiny Acts for the punishment of persons embezzling military and naval stores, by the proceedings of a court-martial. The 5 Vict. c. 12, s. 8, the Annual Mutiny Act, enacts, that '' every paymaster or other commissioned officer of her majesty's forces, or any person employed in the ordinance or commissariat department, or in *223 any manner in the care or distribution of any money, provisions, *for- age, or stores, who shall embezzle, or fraudulently misapply, or be con- cerned in or connive at the embezzlement, fraudulent misapplication, or damage, of any money, provisions, forage, arms, clothing, ammunition, or other military stores belonging to her majesty's forces or for her use, may be tried for the same by a general court martial, which may ad- judge any such offender to be transported as a felon for life, or for any certain term of years, or to such punishment of fine, imprisonment, dis- missal from her majesty's service, and incapacity of serving her majesty in any office, civil or military, as such court shall think fit, according to the nature and degree of the offence, and every such offender shall, in addition to any other p)unishment, make good at his own expense the loss and damage sustained, which shall have been ascertained by such court-martial; and the loss and damage so ascertained as aforesaid shall be a debt to her majesty, and may be recovered in any of her majesty's courts at Westminster or in Dublin, or the court of exchequer in Scot- land, or in any court in her majesty's colonies, where a person sentenced by such court-martial shall be resident after the said judgment shall be confirmed and made known. 'Yc) The offences of knowingly receiving, or concealing naval or military stores which had been stolen, or of unlawfully having possession of naval or military stores, will be mentioned in a subsequent chapter. (6) The .act is wholly repealed, except so much thereof as continues two acts made in the eleventh William the Third, and the fifth of Anne. (c) And see a similar provision in the Marine Mutiny Act, 5 Vict. c. 12, s. IG. CHAP. XXIII.] OF LARCENY OF CLOTH, ETC. *224 ♦CHAPTER THE TWENTY-THIRD. OF LARCENY OF CLOTH AND OTHER ARTICLES IN PROCESS OF MANU- FACTURE. Particular provisions have Lccn enacted by several statutes for punishing the embezzlement of articles in a course of manufacture, which as they relate to petty offenders, (principally workmen employed in particular manufactories) and subject them to the summary jurisdic- tion of justices of the peace, do not come within the scope of this trea- tise. (a) The 7 & 8 Geo. 4, c. 29, s. IG, enacts, " that if any person shall steal 7 & 8 Goo. to the value of ten shillings any goods or article of silk, woollen, linen g Jaiinf' or cotton , or of any one or more of these matarials mixed with each certnin other, or mixed with any other material, whilst laid, placed or exposed k^o*^^ '" •' ' p • 1-11. process of during any stage, process, or progress of manufacture, in any bunding, manufac- fiold, or other place, every such offender being convicted thereof shall '"•■'-' P""" ^ . ishable l»v be liable to any of the punishments which the court may award as here- transporta- inbefore last mentioned." tlon, Ac. The 1 Vict. 0. 90, s. 2, recites this section and enacts, that so much of the said act as relates to the punishment of persons convicted of any of the offences hereinbefore specified as in that act contained shall from and after the commencement of this act (1st of October, 1837) be re- pealed ; and that ''every porson convicted after the commencement of this act of any of such offences respectively shall be liible to be trans- ported beyond the seas for any term not exceeding fiftC3n years nor less than ten years, or to be imprisoned for any term not exceeding three yeai's." And by sec. 3, " it shall be lawful for the court to direct such imprisonment to be with or without hard labour, in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprison- ment or of such imprisonment with hard labour, not exceeding one month at one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet." By the 7 & 8 Geo. 4, c. 29, s. Gl, principals in the second degree and Principals accessories before the fact arc punishable in the same manner as princi-'" "j"''''- ^ . ^ . cond de- pals in the first degree; and accessories after the fact (except receivers gree, and of stolen property) are liable to be imprisoned for any term not e cceed- "■°'^^3^*"'"^'^- ing two years. (?>) *Some questions may possibly arise upon the words '' laid, placed or *225 exposed durin T ^ °. 1 • 1 ,1 • ■'therepeal- building, ncla, or other place. In a case in which the prisoner vraSpdapt ^3 indicted upon the 18 Geo. 2, c. 27, (now repealed,) for stealing yarn out t not upon such person hath been or shall be declared bankrupt, shall not, .surrender- before three of the clock, upon the forty-second day after notice thereof '"^ "-'."I in writing, to be left at the usual place of abode of such person, or per- to bo exa° sonal notice in case such person be then in prison, and notice given in"''"^'"'-" the London Gazette of the issuing of the commission, and of the meet- ings of the commissioners, surrender himself to them, and sign or sub- scribe such surrender, and submit to be examined before them, from time to time, upon oath, or, being a Quaker, upon solemn affirmation j or if any such bankrupt, (a) upon such examination, shall not discover ornotmak. all his real or personal estate, and how and to whom, upon what con-"'^'!.'^''-'^^'^" sideration, and when he disposed of, assigned, or transferred any of such estate and estate, and all books, papers, and writings relating thereunto, (except '^^'-'^''^ J such part as shall have been really and bond fide before sold or disposed in the way of his trade, or laid out in the ordinary expense of his family) ; or if any such bankrupt shall not, upon such examination, deliver up or not de- to the commissioners all such part of such estate, and all books, papers, I'yering up and writings relating thereunto, as be in his possession, custody, or i^l,'!,]^" Vc. • power, (except the necessary wearing apparel of himself, his wife, and or remov- children) ; or if any such bankrupt shall remove, conceal, or embezzle l"f jru'iiHo any part of such estate, to the value of ten pounds or upwards, or any tho value of c.asQ, 1 Hawk. P. C. c. 43, s. 3. Palmer's case, 2 Leach, 680. 2 East, P. C. 586. Pope's case, 1 Leach, 336. 2 East. 587. Bill's case, 1 Hawk. P. C. c. 43, s. 7. Rex v. Ooddard and Eraser, 2 Leach, 545. Pike's case, 1 Hawk, P. C. c. 43, s. 4. Mann's case, 1 Hawk. P. C. c. 43, s. 6. Butler's case, 1 Hawk. P. C. c. 43, s. 8. Re.x; v. Hcalcy, R. & M. C. C. R. 1. Rex V. Bcw, Russ. & Ry. 480. (rf) Ante, p. 1. (a) Lord Hanley, Bank. L. 383, observes, " there is an inaccuracy in this clause, which should be renicilifd on a future revision of the law ; it has omitted the words 'in case of any default or wilful omission.' " 228 OF EMBEZZLEMENTS AND FRAUDS [BOOK IV. 101. felony, books of account, papers, or writings relating thereto, with intent to ment! ' defraud his creditors, every such banl^rupt shall be deemed guilty of felony, and be liable to be transported for life, or for such term, not less than seven years, as the court before which he shall be convicted shall adjudge, or shall be liable to be imprisoned only, or imprisoned and kept to hard labour in any common gaol, penitentiary-house, or house of correction, for any term not exceeding seven years. "(i) Lord Chan- The 113th section enacts, " that the Lord Chancellor shall have power, eellorraay J^g often as he shall think fit, from time to time to enlarge the time for time for the bankrupt surrendering himself for such time as the Lord *Chanccllor surrender, shall think fit, SO as cvcry such order be made six days at least before *229 the day on which such bankrupt was to surrender himself." Proviso for The 115th section enacts, ''that if any bankrupt apprehended by any surrender -^^rrant of the commissioners, shall, within the time hereby allowed for rupt appro- him to Surrender, submit to be examined, and in all things conform, he hcnded. shall have the same benefit as if he had voluntarily surrendered." Repealed Upon the repealed statute 5 Geo. 2, c. 30, which contained provisions ^atute, 5 q£ g^ similar nature, though (as to some of them) imperfectly framed, it 30. ' ' was observed, that no instance ever occurred of a capital punishment, or (as was believed) of a capital conviction, for the mere omission to sur- render. (c) And the learned judges presiding in the Court of Chancery, in many instances, superseded commissions, in order to prevent a prose- cution for not surrendering in time, where there did not appear to have been any intention in the bankrupt of defrauding his creditors by not appearing within the time appointed, and where his absence proceeded rather from an ignorance of the consequence, or accident. (^?) Such an order did not, however, prevent a prosecution, but operated only as an intimation of the Chancellor's opinion that the bankrupt did not keep out of the way fraudulently, and that it was a case in which the Chan- cellor did not see reason to think that if prosecuted he would have been convicted :(c-) and it appears clear that there must have been a wilful omission to surrender to constitute a felony. (/) Points upon Very few points appear in the books upon the construction of this the repeal- repealed statute, and some of them are inapplicable to the present ed statute. , ^ , . law.(^) In an early case, upon the repealed statute, an objection was taken to an indictment that there ought to have been an averment in the indict- ment, that the commissioners did sit, and that those commissioners should have been named ; whereas they were not named in the notice, which (6) " The words ' such bankrupt,' mean a person not merely declared a bankrupt by the commissioners, but a person liable to be so ' declared.' " Per Parke, J., Rex v. Jones," 4 B. & Ad. 345. The words ' such bankrupt' import not merely a person against whom a valid commission has issued, but one who has 'become bankruj^t,'" per Patteson, J., ibid. (c) 4 Er. Col. Stat. Bankrupts, p. 88. (d) Ex parte Wood, 1 Atk. 222. Ex parte Shiles, 1 Madd. 249. (e) By the Vice-Chancellor, in Ex parte Shiles, 1 Madd. 249. (/) Id. ibid. Iff) The 1 Geo. 4, c. 115, s. 1, after reciting so much of the 5 Geo. 2, c. 30, as made it a capital felony for a bankrupt to conceal, embezzle, &c., to the value of 201., or any books of account, &c., with an intent to defraud his creditors, enacted, that so much of the said act as inflicted capital punshment of death on the offence therein before recited should be re- pealed, and that any person duly convicted of the offence therein before recited, which was punishable with death under the recited act, should be liable to be transported beyond the seas for life, or for such term not less than seven years, as the court should adjudge, or should be liable to imprisonment, or imprisonment and hard labour, for any term not ex- ceeding seven years. Then succeeded the 6 Geo. 4, c. IG. » Eng. Com. Law Reps. xxiv. 71. CHAP. XXV.] BY BANKRUPTS. 229 only set forth that he was required to surrender to the commisswiurs at Gaildhall ; and it might as well be understood of the commissioners of sewers, or of the lieutenancy, as of the commissioners of bankrupts, for they all sit at the same CuildluiU. The court were of opinion that this, together with the other objections, was good. (A) *It was observed that the principal nicety in framing an indictment on *230 that statute consisted in the recital of the proceedings before and under Nicety in the commission.(/) ... S^l^Lu And the necessary evidence required attention ; as it was necessary to on thut stu- provc regularly the trading, the petitioning creditor's debt, the act of '"'*^' bankruptcy, the issuing the commission, and the subsequent proceed- ings. <' While the commission subsists, its validity may be assumed for certain civil purposes; but when a criminal case occurs, unless the party was a bankrupt, all falls to the ground." (_;') In a case whore a defend- ant was indicted for refusing to give the commissioners an account of his eifects, he was acquitted on the ground that he was an infant at the time the debts were contracted, and could not, therefore, be a bankrupt for debts which be was not obliged to pay.(/c) And it has since been held that a commission against an infant is void.^A And the Court of Chancery refused to lend its aid to a prosecution on that statute by or- dering the clerk under the commission to attend the trial, and produce the proceedings. (?n) The following points were understood to have been decided in a case upon the repealed statute in which the defendant was charged by the indictment with concealing his effects to the amount of 20^., with intent to defraud his creditors : first, that an averment in an indictment for felony, that a commission issued under the great seal of Great Britain, was sufficiently proved by evidence that it issued under the great seal of Great Britain and Ireland; secondly, that a bankrupt could not set up a prior secret act of bankruptcy to invalidate his commission ; thirdly, that a creditor might prove the act of bankruptcy before the commis- sioners ; and fourthly, that a commission of bankruptcy was not liable to any of the stamp duties imposed by the 44 Geo. 3, c. 98. (?i) But it has since been doubted whether, on such an indictment, the petition- ing creditor is a competent witness. (o) {h) Rex V. Frith, 0. B. IT.IS. 1 Lcacli 10. Upon this opinion of tlic court heing pro- nouuced, the prosecutor moved that the indictment might he quashed. But tlic court said that it was by no means projjcr to encourage the quashing of indictments after prisoners have pleaded. Tlie motion was accordingly refused, and the prisoner being put upon his defence, an acquittal was entered. 1 Leacli, 11. But the court may, in its discretion, quash an indictment at any time before the jury are charged -with the trial of the prisoner. (/) 2 Chit. Crim. L. 511, notes. (./) By Lord Ellcnborough, C. J., Rex v. Pun.shon, 5 Campb. 07. {k) Rex V. Cole, 1 Ld. Raym. 443. [l) Belton v. Hodges,* 9 Biug. 3G5. (m) 1 Hawk. P. C. c. 49. Fraudulent Bankruptcy , s. 7. (w) Rex V. Bullock, 2 Leach, 99G. 1 Taunt. 71. But upon the third point, viz., the proof of the act of bankruptcy by a creditor, a qu. is made by the reporter in 2 Leach, 99G ; and in 1 Taunt. 71, the marginal note upon this point is, " Srjnblc, that commissioners of bank- rupt may receive evidence of the act of bankruptcy from a creditor, Mho seeks to prove under the commission : or at least if they do, after evidence aliumfr of the act of bankruptcy, jiroof that the commissioners declared the bankrupt to be such on tlie creditor's evidence, will not disprove the allegation that he was duly declared a bankru])t. But it has been ruled in a late case that upon an issue to try wlietiier an act of bankrujitcy has been com- mitted a creditor is an incompetent witness, though he has not proved under the commis- sion. Crook V. Edwards,** 2 Stark. R. 302. And see Adams v. Malkin, 3 Campb. 543. And see 2 Stark. Evid. 193, and the cases there collected. (o) Rex V. Walters,* 5 C. & P. 13S. Park, J. A. J., a-tcr consulting Patte- • Eng. Com. Law Reps, xxiii. 309. »» lb. iii. 355. « lb. xxiv. 24C. 230 OF EMBEZZLEMENTS AND FRAUDS [BOOK IV. It was also ruled that on indictment against a bankrupt where the petitioning creditor's debt was alleged to be due to A., B., and C, sur- viving executors of the last will and testament of J)., after proof that A., 13., and C. were the executors, and were directed by the will to carry on the business, it was necessary to prove that they all assented to act in discharge of the trust : and that a general admission by the prisoner of a debt, due to the executors of D. would not supply the defect. (j)>) *231 *Whero a bankrupt was indicted for not surrendering himself under A bankrupt sec. 112 of 6 Geo. 4, c. 16, to the commissioners pursuant to notice, 'iu)f bound ^ and it appeared that he was in custody under a detainer colluslvely to apply for lodged ; and it was contended that he was bound to give notice of his a habeas situation to the commissioners, in order to enable them to is,sue their corpus, &c. 1 • 1 • 1 warrant to bring him before them for examination, and that he was bound to apply for a habeas corjnis to enable him to appear before the commissioners, or at all events that he was bound to apply to the Lord Chancellor for an enlargement of the time, in which to surrender : Lit- llodale, J., said, " This being a case of felony, the act must be con- strued favourably for the prisoner; and as it does not provide money to ])ay the expenses of a habeas corptis in the first instance, I think the bankrupt is not compellable to make the application contended for. And as the commissioners have the power to issue their warrant, and by diligent search may discover where he is, the bankrupt is not bound to give them notice. I am further of opinion that the not doing the things contended for, will not make a bankrupt guilty of felony, though the detainer under which he is in custody be conclusive.^' (g) A bankrupt is not indictable for concealment until he has concluded his last examination, A bankrupt was indicted for not delivering up certain account books, and it appeared that the final examination had never been completed, but that it had been adjourned sine die ; it was held that he must be acquitted, for until the final examination was con- cluded, he had a locus ])^'>^itentim, and might deliver up all his books correctly. "M Indictment It appears to have been holden, that where an indictment against a bad for not bankrupt for concealing property did not, in stating the property, suffi- sufficiently ciently specify particular parts of it, though it might have sufficiently particular specified others, and those specified might have been of the necessary property, value, such indictment was bad, on the ground that the statement as to the parts not specified tended to embarrass the prisoner. And the de- cision appears to have proceeded upon the pi'inciple that where the value is essential to constitute an offence, and the value is ascribed to many articles collectively, the ofience must be made out as to every one of those articles; the grand jury having only ascribed that value to all those articles collectively, (s) son. J., offered to admit the witness, subject to further consideration, but he was not examined. (p) Rex V. Barnes,* 1 Stark. R. 243. In this case it was also ruled that, although the probate of a will had been produced, the will itself could not be read in evidence upon the mere production of it by the officer of the ecclesiastical court, without some indorsement upon it for the purpose of authentication. {q) Mitchell's case, 1 Lew. 20, 4 C. & P. 251. (r) Rex V. Walters.^ 5 C. & P. 138, Park, J. A. J. (.?) Rex V. Forsyth, Russ. & Ry. 274. » Eng. Com. Law Reps. ii. 374. ^ lb. xxiv. 246. CHAP. XXV.] BY BANKRUPTS. 231 An indictment on the G Geo. 4, c. IG, s. 112, must allege that there Tho imiict- had been a trading by the party, a petitioning creditor's debt, and that "HJ^^y^"'' he became bankrupt, and it is not sufficient to allege that a commission traiUng, po- of bankrupt was duly awarded, by virtue of which the commissioners ^",','1".'"*'' found that the party became a bankrupt. An indictment stated that a debt, and commission of bankrupt was duly awarded and issued against E. Q. •I'^toflmnk- Jones, directed to the commissioners therein named, thereby giving ,vt'li us tho them authority to proceed, according to the statute, with the body of '■•■■^"'"K '•f the said E. 0. Jones, as also all his lands, which he had in his own !„:t„*;!!I?" right, before he became bankrupt, &c., by virtue of which said commis- sion the commissioners found that the said E. 0. Jones did become a bankrupt within the true intent *and meaning of the said statute before *232 the suing forth of tho said commission, and did adjudge him to be a bankrupt accordingly. It then charged the defendants with conspiracy to conceal and embezzle a great part of the personal estate of Jones. The defendants having been found guilty, the judgment was arrested on the ground that the indictment did not state enough to show that the defendants conspired to do an illegal act; it ought to have alleged not merely the issuing of a commission of bankrupt, but that there had been a trading by Jones, and a petitioning creditor's debt, and that he became bankrupt. AVithout such allegation the indictment would clearly have been insufficient under the 5 Geo. 2, c. 30, and sec. 112 of the G Geo. 4, c. IG, implied that the commission therein mentioned should have duly issued, and sec. 12 showed that a valid commission could issue only against a trader who had committed an act of bankruptcy, and upon the petition of a creditor. (.ss) An indictment against a bankrupt for concealing part of his personal liHlictni.'n t estate must conclude "against the form of the statute," or it is bad in '""';' *■""" , cludo arrest of judgment. The indictment, after stating that the prisoner was "against a trader, &c., alleged that he did not disclose and discover all his estate ''^"^ ^"'■'^, ""^ and effects to the commissioners, but fraudulently and feloniously con-' coaled and embezzled part of his personal estate, specifying it; to this indictment it was objected, in arrest of judgment, that the offence was not stated to be done '' against the form of the statute ;" and, upon a case reserved, the judges were unanimously of opinion that the omission of contra forniam, &c., was not cured by the 7 Geo. 4, c. G4, ss. 20 and 21, and was fatal to this indictment. (<) Where an indictment alleded that notice of the fiat w\as delivered to Averment the bankrupt according to the direction of the statute, it was objected "''servioo . f *f qT notlCO. that as the words of the statute are " notice thereof in writing to be left at the usual place of abode of such person, or personal notice in case such person be then in prison," the indictment ought to have allofcd that the bankrupt was in prison ; for if he was not, the service ouul it will be more prudent to be provided with the full jiroof. * Eng. Com. Law Reps. xxiv. 24G. ^235 OF EMBEZZLEMENTS AND FRAUDS, ETC. [BOOK TV. ^CHAPTER THE TWENTY-SIXTH. OF EMBEZZLEMENTS AND FRAUDS BY INSOLVENT DEBTORS. Wilfully The 7 Geo. 4, c. 57, s. 70, enacts, "that in case any prisoner shall, omitting -^^^^1^ intent to defraud his or her creditors or creditor, ■wilfully and iu scliedule, fi'^iudulently omit in his or her schedule, so sworn to as aforesaid, any misdemea- effects or property whatsoever, or retain or except out of such schedule, as wearing apparel, bedding, working tools and implements, or other necessaries, property of greater value than twenty pounds, every such person so offending, and any person aiding and assisting him to d» the same, shall upon being thereof convicted by due course of law, be ad- judged guilty of a misdemeanor, and thereupon it shall and may be law- ful for the court before whom such offender shall have been so tried and convicted, to sentence such offender to be imprisoned, and kept to hard labour for any period of time not exceeding three years ; and that in what mat- every indictment or information against any person for such offence, it ters only gjjall be Sufficient to set forth the substance of the offence charged on the indict- , , „ ■, ., • ^ t i • • ment need the defendant without setting lorth the petition, or conveyance, or as- set out. signment to the provisional assignee, appointment of assignee or as- signees, or any conveyance or assignment whatever, or balance sheet, order for hearing, adjudication, order of discharge or remand, or any warrant, rule, order or proceeding of or in the said court, except so much of the schedule of such prisoner as may be necessary for the pur- pose. Separate In point of law a prosecutor may prefer separate indictments for the indict- fraudulent omission of each article. To an indictment under the preced- ments may , ... bo prefer- ing section for fraudulently omitting ten chairs, ten tables, two carts, ed for each ^^ ^jjg prisoner pleaded autrefois acquit ; and the former indictment separate ' . ^ / ,i , i ^ l • t • ,1 fraudulent was the same as the present, except that the two carts mentioned in the omission, present indictment were not specified in the former one; it was, how- ever, submitted that the two charges were substantially the same ; the charge in each indictment was that the prisoner had fraudulently sworn to a schedule, which did not contain a true enumeration of his goods. Patteson, J., " I cannot say that the plea autrefois acquit is, in strict- ness, a good defence to the whole of this indictment. The prisoner may have fraudulently omitted out of his schedule the goods mentioned in this indictment, which were not mentioned in the last : and, in point of law, I think a prosecutor may prefer separate indictments for each such omission. But though the present indictment be in point of law main- tainable, I cannot help saying that, excepting under very peculiar cir- cumstances, I think such a course ought not to be pursued ; and if the *286 *case goes on, I shall strongly advise the jury to acquit the prisoner, un- less they think that the goods, now for the first time brought forward, were omitted out of the schedule under circumstances essentially differ- ent from the others. "(a) Wilful The 1 & 2 Vict. c. 110, the act for abolishing arrest on mesne pro- omission cess in civil actions, by sec. 99, enacts, " that in case any prisoner Idiedule. whose estate shall, by an order under this act, have been vested in the (a) Reg. V. Champneys," 2 M. & Rob. 26. See Rex v. Moody, 5 C. & P. 23, post, Perjury. > Eng. Com. Law Reps. xxiv. 196. CHAP. XXVII.] BY INSOLVENT DEBTORS. 236 said provisional assignee, shall, with intent to defraud the creditors or creditor of such prisoner, ■wilfully and fraudulently omit in his schedule so sworn to as aforesaid, any eiiects or property whatsoever, or retain or except out of such schedule, as wearing apparel, bedding, working tools and implements, or other necessaries, property of greater value than twenty pounds, every such person so offending, and any persoa aiding and assisting him to do the same, shall, upon being thereof con- victed by due course of law, be adjudged guilty of a niisdeiueanor, and thereupon it shall be lawful for the court before whom such oft'ender shall have been so tried and convicted to sentence such offender to be imprisoned and kept to hard labour for any period of time not exceed- ing three years; and that in every indictment or information against any person for any offence under this act, it shall be sufficient to set fjrth the substance of the offence charged on the defendant without set- ting forth the petition, or order vesting such prisoner's estate in the provisional assignee, appointment of assignee or assignees, or balance sheet, order for hearing, adjudication, order of discharge or remand, or any warrant, rule, order, or proceeding of or in the said court, except so much of the schedule of such prisoner as may be necessary for the purpose." Upon an indictment under the 1 & 2 Vict. c. 110, s. 99, against an insolvent for wilfully and fraudulently omitting sums of money from his schedule, it was opened that the omissions were those of certain suras of money which had been received by hira prior to the date of the vesting order, and which in accordance with the 1 & 2 Vict. c. 110, s. 09, should have been inserted in the special balance sheet, which had been filed by the defendant ; there, however, they had been omitted. Lord Abinger, 0. B., held that the indictment would not lie under the circumstances. The special balance sheet was, as it were, a mere memo- randum of the insolvent's receipts and disbursements, for the guidance of the court, and a man should not be held thus criminally resjjonsible for errors therein. The consequence of such an interpretation of sec. 99, as would be necessary for the purpose of this indictment, would be to make a highly penal clause apply to cases possibly of no intentional fraud, and of comparatively trifling inaccuracy. The section applied only to cases where the omission would affect the interests of creditors, and not where it is a mere omission of money received and subsequently expended by the insolvent.(i) .♦CHAPTER THE TWENTY-SEVENTH. *237 ON RECEIVINa STOLEN aOODS.(A) Receivers of stolen goods were at common law punishable only as The offence for a misdemeanor, even after the thief had been convicted of felony in at common (b) Reg. V. Warncr,« 1 C. & Mars. 628. (A) Massachdsktts. — The statutes of Massachusetts, made for the punishment of the of- fence of reccivintr stolen good.'^, are substantially tlie same as those of Great Britain. The tenth, eleventh, twelfth, and thirteenth section of the statute of 1840, c. 14.3, particularly relate to this offence, and are similar to the provisions in some of the English statutes » Eng. Com. Law Reps. xli. 341. Vol. II.— 16 237 OF RECEIVING STOLEN GOODS. [bOOK IV, law was stealing them ; (a) but by the provisions of several statutes, now re- domeanor " ptj'^l^'lj ^^^^ receivers were made accessories after the fact to the felony of the thief, in cases where the thief had been convicted, or was amen- able to justice ; and were made liable to be prosecuted for a misde- meanor in cases where the thief had not been convicted, and whether he was amenable to justice or not. And the 7 & 8 Gleo. 4, c. 29, passed for consolidating and amending the laws relative to larceny, contains several enactments upon the subject of receiving stolen goods. 7 ASOeo. Section 54 enacts, << that if any person shall receive any chattel, mo- 54_ ■ ' ' ncy, valuable security, or other property whatsoever, the stealing or Keceiveis taking whereof shall amount to a felony, either at common law, or by prnn'ert'v • ^i^^tuc of this act, such pcrsou knowing the same to have been feloni- where the ously stolen or taken, every such receiver shall be guilty of felony, ongmal ^^^^ ^^ ■j^q indicted and convicted either as an accessory after the fact, oncnce is •' . "^ , . . felony, the or for a substantive felony ; and in the latter case, whether the pnnci- recoiyers Y)^\ f^Jon shall or shall not have been previously convicted, or shall or inny bo . . tried either shall not be amenable to justice; and every such receiver, howsoever (a) Fost. 373. contained in this chapter on the same subject, that the construction and expositions of the latter, in the English courts, arc applicable to the statute of this state above mentioned. Thomas Andrews was indicted in March term, 180G, in Suffolk, for knowingly receiving, Ac, stolen goods, the property of Moses Dow, before felonously stolen by one Amos Tuttle. It appeared in evidence that Tuttle stole the goods in New Hampshire, that they were brought to Boston in this state, and sold to Andrews, the defendant, under circumstances which showed satisfactorily that he must have known them to have been stolen. Upon a mo- tion for a new trial, as on a verdict against evidence, the court decided that a person re- ceiving in this state goods stolen in another state, knowing them to be stolen, may be indicted in this state as a receiver of stolen goods. Cullin's case, (1 JIass. Rep. IIC — and Lord's case, decided at York, June term, 1792, were considered directlj^ in point, and con- clusive against the motion, which was overruled. Commonwealth v. Andrews, 2 Mass. Rep. 14. In a subsequent case against the same defendant, Thomas Andrews, he was indicted for receiving stolen goods, &c., the property of Josiah Bellows and David Stone, which had been stolen by Amos Tuttle. To the indictment, the defendant pleaded in bar, in substance, that he had been tried and convicted for having knowingly, &c., received of the same Amos Tuttle, other goods which had been previously stolen by him from Moses Dow; that the judgment upon the former conviction still remained in force ; that the goods mentioned in this indictment, and alleged to have been stolen from Bellows and Stone, and those alleged to have been stolen by Dow, were in the same packages and parcels, at the time they were received by the defendant ; that they were all received by him at the same time ; and that the act of receiving them was one and the same. The plea was adjudged insufficient. The guilt of the accessory is in relation to the crime of the principal, and as the principal in this case had committed two crimes, the defendant, by his participation, was equally guilty of both. Commonwealth v. Andrews, 2 Mass. Rep. 409. (United States.— See 1 U. S. Laws, (Story's ed.) 87, 3 ib. 2001. Ind. Dig. 157, 15S. South Carolina. — Oliver Scovel was indicted for receiving stolen goods. The facts were, that Brown, the principal felon, brought the goods to the house, where the defendant and one Sterrct lived together ; that the prisoner had knowledge that Brown had stolen them ; that afterwards a passage was engaged by Sterrct for the prisoner, on board a vessel Ijound to North Carolina ; that the stolen goods were sent in a trunk to the vessel, with another trunk containing the prisoner's clothes ; that Sterret and the prisoner went to the vessel, when the former said to the captain, " here is your passenger and his baggage ;" that the trunks wore received as the prisoner's, and that he gave directions that one of them should be put into the hold of the vessel. This was held to be such a reception of the goods, as justified a conviction under the statute, for receiving stolen goods ; the possession of the goods at the house before the removal, was a sufficient possession under the statute; but the subsequent acts of the prisoner, showed an actual independent possession. — 1 Rep. Com. Gt. 274, State v. Scovel. 'Since st. Wra. & M. no indictment as for a misdemeanor at common law can be main- tained against a receiver of stolen goods ; and a receiver of stolen goods from a slave cannot be indicted for a misdemeanor : but he may be indicted as an accessory. 4 McCord, 358, State V. Wright. See Revised Statutes of New York, Vol. II., 687.! CHAP. XXVIT.] OF RKCRTVIVO STOLEN «OODS. 237 convicted, shall be liable at the discretion of the court, to be transport- f'"" a sul>- cd beyond the seas for any terra not exceeding fourteen years, nor less ^•^.1°^"''' than seven years, or to be imprisoned for any term not exceeding three years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprison- ment : provided always, that no person howsoever tried for receiving as aforesaid, shall be liable to be prosecuted a second time for the same ofTcnce.'X^) By sec. 55, " if any person shall receive any chattel, money, valua- Soc. 55. ble security, or other property whatsoever, the stealing, taking, obtain- ^^bere th.> ing or converting whereof is made an indictable misdemeanor by this f,.n"o is n act, such person knowing the same to have been unlawfully stolen, misdemoa taken, obtained, or converted, every such receiver shall be guilty of a °'"^* misdemeanor, and may be indicted and convicted thereof, whether the person guilty of the principal misdemcannr shall or shall not have been previously convicted thereof, or shall or shall not be amenable to jus- tice ; and every such receiver shall, on conviction, be liable, at the discretion of the court, to be transported beyond the seas for the terra of seven years, or to be imprisoned for *any terra not exceeding two *238 years ; and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprison- ment." The 5Gth sec. enacts, <' that if any person shall receive any chattel, Sec. 5G. money, valuable security, or other property whatsoever, knowing the Keceivcrs same to have been feloniously or unlawfully stolen, taken, obtained or "ri''e"d where converted, every such person, whether charged as an accessory after the t''o prim/i- fact to the felony, or with a substantive felony, or with a misdemeanor j^'j^jp^p'^"" only, may be dealt with, indicted, tried and punished in any county or wliero tlo place in which he shall have, or shall have had any such property in P'""rer.'y '» his possession, or in any county or place in which the party guilty of their pos- thc principal felony or misdemeanor may by law be tried, in the same session, manner as such receiver may be dealt with, indicted, tried, and pun- ished in the county or place where he actually received such pro- pcrty."^ Sec. 7G, after providing that nothing contained in the act shall ex- Soc. 76. tend to Scotland or Ireland except as follows, and then enacting as to ^'"'"^ "•" trials in cases of larceny where the thief, having stolen, &c., property Jeivi'ng in in one part of the kingdom, shall afterwards have the same property in one part of his possession in any other part, further enacts, that " if any person in kTuo-iTo'di any one part of the United Kingdom shall receive or have any chattel, properly money, valuable security or other property whatsoever, which shall ?'"•''"' *°" have been stolen or otherwise feloniously taken in any other part of part, the United Kingdom, such person knowing the said property to have been stolen or otherwise feloniously taken, he may be dealt with, in- dicted, tried, and punished for such ofTeucc in that part of the United Kingdom where he shall so receive or have the said property, in the same manner as if it had been originally stolen or taken in that part." Sec. GO provides for the punishment of receivers where the stealing, Pop. 60. &c., is punishable on summary conviction, and enacts, "that where the I'oceiTers . ',. . 1 • c 1 • 1 1 . -Ill ff property stealing or taking ot any property whatsoever is by this act punishable on ,vi,pro tho summary conviction, either for every oO'encc, or for the first or second original of- (6) As to hard labour and solitary confinement. See sec. 4, ante, p. 128. 238 OF RECEIVING STOLEN GOODS. [bOOK IV. fence is ul]t'ncc only, or the first offence only, any person wlio sliall receive any on^sum- ^ ^^^^ property, knowing the same to be unlawfully come by, shall, on iiKiry con- convictiou thereof before a justice of the peace, be liable, for every first, viction. second, or subsequent offence of receiving, to the same forfeiture and punishment to which a person guilty of a first, second, or subsequent offence of stealing or taking such property, is by this act made liable." The author thought that the provisions of this statute would prevent a difficulty, which frequently occurred, in consequence of the proof not corresponding with the charge in the indictment, either where the party, being charged as the thief, turned out to have been the receiver, or, being charged as a receiver, appeared upon the evidence to have actu- ally stolen the property. And it was conceived that where from the nature of the case, it appeared to be advisable, a count charging the party accused as receiver might be joined in the same indictment witb a count charging him as the thief, and that he might be convicted upon suck of the counts as was supported by the evidence, iiut although there is no objection in point of law to including a count for stealing and a count for receiving in the same indictment, and the judges differed in opinion as to whether the prosecutor should be put to his election on *239 which of the two *counts he would proceed, yet they all agreed that directions should be given to the respective clerks of assize not to put both charges in the same indictment. (^) Dietinchon j^ gome cases, upou the repealed statutes, the distinction between receiver ^ receiver and an accomplice was the subject of attentive consid- and princi- eration. ami Dis^*^"^ Dyer and Distinge were indicted for stealing a quantity of barilla, the ting's case, property of M. Hawker. It appeared that the barilla was on board a Goods foreign ship at Plymouth, consigned to Hawker; that Hawker em- from one ployed Dyer, who was the master of a large boat, for the purpose of part to bringing it on shore; and that Disting, together with several others, a boat by were employed as labourers in removing it to Hawker's warehouses, A., and after it was landed. And the jury found that, while the barilla was in takeirftrora Dyer's boat, some of his servants, without his privity, consent, or par- the boat by ticipation, severed some of it from the rest where it was stowed, and removed it to another part of the boat, where they concealed it under some rope. But they also found that Dyer afterwards assisted the other prisoner and the persons on board, who had before separated this part from the rest, in removing it from the boat, fa?' the puiyose of carrying it of. It was objected for the prisoner Dyer, that his offence was not that of a principal, as laid in the indictment, but that of re- ceiver or accessory after the fact. But the learned judge, before whom the trial was had, was of opinion that, though for some pur- poses, as with respect to those concerned in the actual taking and sepa- ration, the offence would have been complete by the severance and re- moval of the barilla to another part of the boat, as being an asportation (i) Rex. V. Gallowav, R. & M. C. C. R. 234. This point was again considered in Rex v. Madden, R. & M. C. C. R. 277, and a great majority of the judges held that the rule laid down in Rex v. Galloway, should be adhered to. In Rex v. Flower,^ 3 C. & P. 413, the in- dictment contained counts for stealing and receiving two pigs, and Vaughan, B., compelled the prosecutor to elect upon which he would proceed. " The reason why counts ought not to be joined in an indictment against a prisoner for stealing, and also for receiving, is, be- cause they are in fact totally distinct offences, and a prisoner cannot be found guilty of both ;" per Parke, B. Reg. v. Blackson,b 8 C. & P. 43. » Eng. Com. Law Reps. xiv. 374. ^ lb. xxxiv. 285. CHAP. XXVII.] OP RECEIVING STOLEN GOODP. 23 "> in point of law, yet, with respect to Pyor, who joined in the scheme before the barilhi had been actually taken out of the boat, "where it was properly deposited for the purpose of being landed, and who assisted in the act of carrying it off from thence, it was one continuing transac- tion, and could not be said to be completed till the removal of the com- modity from such place of deposit; and that Dyer, having assisted in the act of carr3'ing it off, was therefore guilty as prinoipal.(r)-|- Another case arose out of the same transaction. It appeared that Oaso? of the rest of the barilla was lodged in M. Hawker's warehouse : that while ^',"'*'" *n'^ 1111 -^ JJonnell. it was there several persons, employed as labourers or servants by Haw- (Joods re- ker, entered into a conspiracy to steal some of it ; that accordingly, "i"^'"'' "' some of them, who had access to the warehouse, removed a parcel of i„j,fr„m it nearer to the door than it was before, in the course of the morning; p-'irtof a and that about nine at night these persons, together with the prisoners („ unoibcr Atwoll and O'Donncll, who had in the meantime agreed to purchase ''.v A., and it of the others, came to the warehouse yard and assisted the others, [," ^" ^^' who took it to the *warehouse, in carrying it away from thence. They at night, were all indicted as principals in the felony; and the same objection was *240 made as before, that At well and O'Donncll were only receivers or ac- cessories after the fact, the felony being complete before their partici- pation in the transaction. But it was ruled that, so long as the goods " remained in the warehouse, which was the lawful place for their deposit, although to some purposes, as to those who severed this parcel from the rest for the purpose of stealing it, and more conveniently removing it afterwards, the felony might be said to be complete ; yet it was a con- tinuing transaction as to those who joined in the same plot before the goods were finally carried away from the premises; and that all the de- fendants, having concurred in or being present at the act of removing them from the warehouse wherein they were lawfully deposited, were principals.(rA But where the goods had been so entirely taken away from the prem- King's ises or actual possession of the owner, that their further removal could ^^^^j'^ jj^,. not be deemed a continuing part of the original taking, the case was removed holden to come under a different consideration ; and the party concerned *^^°™ '^'" only in such further removal was decided not to be guilty of stealing of the pr-.. the goods. Upon an indictment for larceny, in stealing several firkins ^ecutor by of butter and some cheeses, the facts proved were, that two men, in the absence < f absence of the prisoner, broke open the warehouse of the prosecutor, l^-. nnd B. stole the butter and cheese in question, carried them into the adjoining Jj^j^'j.^iU'^ street, and deposited them a distance of about thirty yards from the ciurying door of the warehouse : after which they went for the prisoner, brought ']>'*';'!.' no^tY' him to the place, and informed him of what they had done; and he as- prineiiiiil. sisted in carrying the property to a cart, which was kept in waiting at (r) Kcx V. Dyer and Disling, Exeter Sum. As.". 1801, cor. Graham, R., Avho conferred witli the o/iier jiido:e, (Lc Blanc, J.,) iind afterwards said that he was fully satisfied that his opin- ion ter's stables two trusses of hay above the quantity which was allowed for the horses ; and that Hopkinson, who was the ostler at a public house where the wagon stopped on the journey, came to the tail of the wagon and received the two trusses of hay .from Gruncell, and carried them to the stable : it was objected that if Hopkinson had committed any offence at all it was that of stealing, as the hay being in the master's wagon was in the master's possession, and the act of the prisoner in re- moving it from the wagon constituted a larceny and not a receiving; but it was held that the indictment was properly framed, on the ground that as the hay was not hay appropriated* by the master for the horses, *242 the moment it got into the wagon, animo furancU, the larceny was com- plete. If, however, it had been hay allowed for the horses which had been stolen, it would have been otherwise. (A It was settled upon the repealed statutes, that a party might be in- A party dieted for receiving goods stolen by persons unknown : and where an ^^.^^ ^° "*" • J. 1? 1 1 • T 1 -1 dieted for indictment was objected to because it did not ascertain the prmcipal rutoiving thief, and did not therefore state to whom in particular the prisoner was^o^'^^ ^1 . 1 • , p . . , . , stolen by accessory, the judges were unanimously or opinion that it was good ;,„.;.«„„, „,». the great view of the statutes being to reach the receivers, where the ^■"<'«"'- principal thieves could not easily be discovered. (_;') But where the d"' ^^in^^cU principal was known, it was considered to be proper to state the facts pal is un- according to the truth. (/■:) And a case is reported in which it was g^yj]^^"',^'* ruled, that an indictment against an accessory before the fact to a lar- so .stated, ccny, which stated a stealing by "a certain person to the jurors un- *'"'• ^^'^^ .„ known," and that the prisoner incited, &c., " the said person unknown" 211.' to commit the said felony, could not be supported where the principal felon was a witness before the grand jury. The counsel for the prose- cution, in opening the case, stated that the grand jury had found the bill upon the evidence of the principal, who acknowledged that he had stolen the goods in question, and proposed to call the principal as a witness to establish the guilt of the prisoner. But Le Blanc, J., interposed, and directed an acquittal. He said, he considered the indictment wrong, in stating that the wheat had been stolen by a person unknown ; and asked, how the person who was the principal felon, could be alleged to be unknown to the jurors, when they had him before them, and his name was written on the back of the bill ?(/) Where, however, two (A) Rex V. Butteris,* G C. & P. 147, Gurney, R. ((') Reg. V. Gruncell,'' 9 C. & P. 3G5. Mirchouse, C. S., after consulting Pattcson, J. who went very carefully through the cases on the subject, and was clearly of opinion the indict- ment was properly framed. (./) Thomas's case, 0. B. 1Y66. 2 East, P. C. c. IG, s. 164, p. 781. [k) 2 East, P. C. 0. 16, s. 164, p. 781. And see ante, p. 97, that though in an indictment for larceny the goods may be laid to be the property of persons unknown, yet such an alle- gation will be improper if the owner be really known. (/) Rex i'.\Valker,3Campl). 2G4. And S. P. by Dallas, J., Anon. Worcester Lent Ass. 1815. » Eng. Com. Law Reps. xxv. 324. i- lb. xxxviii. 157. 242 OF RECEIVING STOLEN GOODS. [BOOK IV. bills of iudictmentliad been found by the same grand jury, one of which charged the prisoner with receiving goods stolen by a person unknown, and the other charged him with receiving the same goods stolen by one H. Moreton, and the prisoner was tried on the first-mentioned indict- ment, the counsel for the prosecutor having declined to proceed upon the other against H. Moreton, and objection was taken that the allega- tion of the person who committed the j^rincipal felony being unknown to the grand jury was negatived by the other record, the judges (upon the point being reserved for their consideration) held the conviction right. They were of opinion that the finding by the grand jury of the bill im- puting the principal felony to H. Moreton, was no objection to the second indictment, although that indictment stated the principal felony to have been committed by a person to the jurors unknown. (?h) "^243 *Ii ^11 indictment against a receiver, as an accessory after the fact to It is suffi- the felony, where the principal had been convicted, it was decided to be state the sufhcient to state the conviction, without stating the attainder of the conviction, principal. In a case where it was moved in arrest of judgment that without tijg indictment was bad because it did not state that the principal was stating the • 7 i • . . ^ attainder oi^^Maiuted, the point was reserved for the consideration of the judges, tho pnuc- -vyho all held that the indictment was good, upon reference to a great number of precedents, and on a consideration of the statute 1 Anne, St. 2, c. 9, s. 1, 2. (ft) In a subsequent case, where the prisoner was charged with knowingly receiving stolen goods, the indictment stated that the goods had been stolen by Isaac Powell, who had been duly convicted of the felony at the great session for Brecon. An examined copy of the record of Powell's conviction was produced, which stated that the prisoner was asked if he was (not is) guilty; and it did not state that issue was joined, or how the jurors were returned, and the only award against the prisoner was, that he should be in mercy, &c. It was objected that this entry was not sufficiently formal and correct to sup- port the averment that Powell had been duly convicted. But the learned judge ruled, that the judgment was not necessary, and might be rejected; that the conviction was sufficient ; that in the common case, where the receiver is tried with the thief, there is no judgment on the thief, before the verdict against the receiver; and that although this record was full of errors, yet an erroneous attainder of the principal was sufficient against the accessory until it was reversed. (0) And the judges held, that the objections to the copy of the record produced were not ma- terial, (p) 7 Geo. 4, c. The statute 7 Gleo. 4, c. 64, s. 11, in order that all accessories may be 64, s. 11, convicted and punished in cases where the principal felon is not at- accessones . ^^ . . . . to suffer the ^«"ial felon, and if stated it is not necessary it should be proved. Slalcx. Cappenf/ur^f, 2 f^trolihart, 273. An indictment for receiving stolen goods must charge the defendant with receiving them with intent to deprive the true owner thereof. JIurcU v. The State, 5 Humidircys, 68.] » Eng. Cora. Law Reps. xxv. 339. 244 OF RECEIVING STOLEN GOODS. [BOOK IV. prosecutor ought to elect which of the prisoners he would proceed against, but Littledule, J., in the view he then took of the indictment, that it was a case of principal and accessories, thought the prosecutor was not bound to elect ; if he had thought otherwise, he would have directed him to elect. The case then proceeded, and H. Moss was examined as the evil disposed person mentioned in the indictment who stole the gold dust. lie was not a person unknown either to the grand jury or the prosecutor, for his name was on the back of the indictment, and there was another indictment found by the grand jury, in which H. Moss was charged as the person who stole the gold dust. Though H. Moss was examined, it was a question for the jury upon the whole evi- dence, whether he or Lewin Caspar stole it. At the close of the case for the prosecution, it was again contended that an election should be made, but Littledale, J., still thought the prosecutor was not bound to elect ; other objections were then taken, which (the prisoners having been found guilty) were saved for the consideration of the judges; before whom it was contended, first, that this was an indictment against principal and accessories, and not for a substantive felony ; and, there- fore, it ought to have shown that the principal had been convicted or *245 outlawed;* secondly, that the prosecutor ought to have been compelled to elect against whom he would proceed ; and thirdly, that the indict- ment was bad as to the accessories before the fact, inasmuch as the principal was not named; and, after elaborate argument, the learned judges determined that the statement that an evil disposed person stole, was too uncertain to support the charge against Lewin Caspar as acces- sory before the fact, but that the other prisoners was sufficiently charged with a substantive felony in receiving, and properly convicted. (i;) Separate Where a count charging Hartall and Neal with a burglary and steal- receivers of ijjg sm;j(3i.y articles, and Mole with receiving part of the articles stolen, goods may and Horseman with receiving other part of the articles, was joined with be tried at ^ count charging Mole and Horseman with the substantive felony of time with joii^tly receiving all the articles, and with counts charging Mole and the princi- Horseman separately with a separate substantive felony, in each sepa- pa e on. j.g^|.g^y receiving a part of the articles stolen ; and it appeared that Mole and Horseman had received part of the stolen property on diiferent occasions, and quite unconnectedly with one another; it was objected, that as distinct felonies had been committed by Mole and Horseman, each ought to have been tried separately ; but it was held that all the prisoners might be convicted upon this indictment. (io) So where two prisoners were indicted for stealing a sheep, and two others, separately in distinct counts, for receiving separate parts of the mutton so stolen, and all the prisoners were found guilty ; it was moved in arrest of judgment on behalf of the receivers, on the ground that they were charged with separate felonies, for which they ought to have been in- dicted separately. Parke, B., " The objection forms no ground for a motion in arrest of judgment. If there had been any thing in the point, you ought to have asked me to put the prosecutor to his election, if justice had required the separation, while the trial was going on; but you can take no advantage of the objection after verdict. "(x) (v) Reg. V. Caspar,^ 2 Moo. C. C. R. 101. S. C. 9 C. & P. 289. (w) Rex V. Hartall,'' 7 C. & P. 4*75, Littledale, J. (x) Reg. V. Haj^es, 2 M. & Rob. 155. Is is clearly settled that the principal and accesso- ^ Eng. Com. Law Reps, xxxviii. 124. ^ lb. xxxii. 589. CHAP. XXVII.] OF KECEIVING STOLEN GOODS. 245 Where a principal and a receiver are included in the same indict- C'ounts ment, the receiver may be charged in one count with receiving the ^|,^. rlcefv- goods from the principal, and in another count with a substantive felony in;? from for receiving them from an evil disposed person. The Judictmeut ^^ P"^^*''' charged four prisoners with a burglary and stealing a number of articles, charging a and the fifth prisoner with receiving a part of the stolen goods from the ^"'^*'""''^* 1 1 1 /•<• I ■ • 1 felony may other prisoners, and another count charged the Iitth prisoner with a bo joined, substantive felony in receiving the same part of the goods from a certain evil disposed person. It was objected that there was a misjoinder of counts; that the statute allowed the party to be indicted in one way or the other, but not *in both ; and that by joining the two counts in one *246 indictment, the prisoner was deprived of the benefits of pleading autre- fois acquit, which was given him by the 7 & 8 Geo. 4, c. 29, s. 54, but it was held that there was no misjoinder. And Parke, B., after- wards said, " There was an objection taken on the ground of a misjoin- der of counts, where a count for receiving was added as for a substan- tive felony. I had some doubt on the point ; but I have conferred with my brother Bolland, and looked at authorities, and I now find that it is a matter quite in the discretion of the judge. It is not open to a demurrer ; neither is it a ground for quashing the indictment. There- fore, whenever it is clear that there is only one oflfence, and the joinder of the counts cannot prejudice the prisoner, we think that the objection ought not to prevail. We have accordingly directed the officer to draw these indictments in the manner which we understand has prevailed on the circuit, and at the Old Bailey." (y) An indictment charging the principal with killing a sheep with intent a count for to steal one of the hind let's of the sheep, and the accessory with receiv- ^ substan- tivc icloiiv ing nine pounds of the mutton so stolen as aforesaid, cannot be supported i„ receiving against the accessory, but if such an indictment also contain a count |";>.v ''" . for a substantive felony in receiving the mutton from a certain evil ,"pj,ynt, f^^ disposed person, the accessory may be convicted upon it. The first killing wiiU count charged that Wheeler killed a sheep "with intent to steal one of^"^!^" "^ the hind legs of the said sheep." The second count charged Cowley with receiving nine pounds weight of mutton, part of the goods and chattels " so stolen as aforesaid." The third count charged Cowley with receiving the nine pounds weight of mutton from a certain evil dis- posed person ; and it was held that the second count could not be sup- ported, as it stated the mutton to have been " so stolen as aforesaid;" and there was no stealing mentioned, but only an intention to steal; but it was held that Cowley might be convicted on the third count. (z) ry may be included in the same indictment and tried together. 1 Hale, G23. Fost. 305. And the felony of the princijjal is just as distinct from the felony of the accessory, as the felony of one receiver from the felony of another receiver, and there is stron{?er ground for the principal and receiver being tried separately, than for separate receivers being tried sep- arately, inasmuch as evidence may be admissible against the principal, which is not admis- sible against the receiver, Ilex v. Turner, R. & M. C. C. R. 347, and the receiver may be pre- judiced by the receipt of such evidence. C. S. G. ((/) Rex r. Austin,-' 1 C. k P. TOG. (z) Rex I'. ■\Vhcclcr,t T C. & P. 170. Coleridge, J., who at first doubted, first, whether if the principal wore known, his name should not be stated, and if not known whether it should not be charged that he was not known ; secondly, that the count was for receiving stolen goods, and was joined not with a count for stealing but with a count for killing with intent to steal, which seemed to be an offence of a different nature. U\s lordship, how- ever, left the case to the jury, and the prisoners were found guilty, and afterwards sen- tenced. » Eng. Com. Law Reps, xxxii. 740. '' lb. 483. 246 OF RECEIVING STOLEN GOODS. [book IV J„in(lcr of A count charging a person -with being accessory before the fact may be joined with a count charging him with being accessory after the fact to the same felony, and the prosecutor cannot be compelled to elect upon which he will proceed, as the party may be found guilty upon both.(o) And a case has occurred, in which a party was indicted for receiving stolen goods, and also for receiving harbouring, and comfort- ing the felons, and the prisoner was convicted. (?>) *247 An indictment upon the 7 & 8 Geo. 4, c. 29, s. 55, for receiving goods Imlictmcnt •vyhich have been obtained by false pretences, must allege the *goods ing goods to havs been obtained by false pretences, and that the receiver knew obtained by that they were so obtained. The indictmqnt stated that the prisoner tences.'^^" unlawfully did receive of a certain evil disposed person one shoulder of mutton, of the weight of seven pounds, of the value, &c., of the goods and chattels of T. W., which said goods and chattels had been then lately before to wit, on &c. at &c., unlawfully obtained, taken, and car-" ried away, she the prisoner, at the time of her so receiving the said goods and chattels, well knowing the said goods and chattels to have been unlawfully obtained, taken and carried away : after a verdict of guilty, it was moved in arrest of judgment that the offence was not brought within the 7 & 8 Geo. 4, c. 29, s. 55, unless it appeared on the indictment that the goods had been obtained by false pretences, and that the receiver knew them to be so unlawfully obtained ; and, upon a case reserved, the judges were unanimously of opinion, that the indictment was bad, on the ground stated in the motion in arrest of judgment, (c) The bare receiving of stolen goods, knowing them to be stolen, did not make an accessory at common law. But if a party received goods from the thief to keep for him, knowing them to have been stolen, or if he received goods to facilitate the escape of the thief, or if he know- ingly received them upon an agreement to furnish the thief with sup- plies out of them, and accordingly supplied him, this made the party an accessory at common law, for it was relieving and comforting. (c/) Under the If the prisoner receive the property knowing it to be stolen for the pur- pose of assisting the thief, or for the purpose of concealment, it is a receiving within the statute, although he never gains any profit or ad- vantage by the receipt. Upon an indictment for receiving stolen goods, Taunton, J., told the jury, that "if the prisoner received the property for the mere purpose of concealment, without deriving any profit at all, he is just as much a receiver as if he had purchased it : it is a receiving within the meaning of the statute. "(e) So in a similar case Gurney, B., told the jury that " if the receiver takes without any profit or advan- tage, or whether it be for the purpose of profit or not, or merely to assist the thief, it is precisely the same."(/)f Reg. V. Blackson,* 8 C. & P. 43, Parke, B., and Patteson, J. Rcceivin stolen goods at common law. («) ... (b) Anonymous, mentioned by Parke, B., ibid. In many cases it is advisable to insert such counts, as the evidence may fail to prove the receipt of the stolen property, and yet be sufficient to obtain a conviction for comforting and assisting the felon. See Rex v. Lee,'' 6 C. & P. 53G, ante, vol. 1, p. 37, and see Reg. v. Caspar, ante, p. 245, where one count charged Ellis Caspar as an accessory before, with inciting the principal, and another as ac- cessory after, in receiving the stolen property. (c) Reg. V. Wilson, 2 Moo. C. C. R. 52. (d) 1 Hale, 620. (e) Rex V. Richardson,' G C. & P. 335, cor. Gaselee, J., Vaughan, B., and Taunton, J. (/) Rex V. Davis,<: 6 C. & P. 177. f [If a stranger pursuant to an arrangement with one whom he knows has stolen * Eng. Com. Law Reps, xxxiv. 285. •> lb. xxv. 530. <= lb xxv. 341. ioodt CHAP. XXVII.] OP RECEIVING STOLEN GOODS. 247 Where, upon an indictment for receiving stolen brass, it appeared that the brass having been stolen by a servant lad, and having been taken from him by another servant in the presence of the prosecutors, it was restored to the lad again in order that he might take it to the house of the prisoner for sale, and the lad took it and sold it to the prisoner; Coleridge, J., held that the evidence was sufficient to support the in- dictment. (^■) This ofl'euce is not punishable with hard labour. (7) Upon an indictment for receiving stolen goods there should be some l'pon»° 'n- evidence to show that the goods were in fact stolen by some other per- \^'^ r"ceiv- son, and recent possession of the stolen property is not alone sufficient ing tliero to support such an indictment, as such possession is evidence of stealing *' '°" ?" and not of receiving. Upon an indictment for receiving stolen property dcnco that the evidence was that the property having been discovered after the loss ^''"^ ^oods "wcrc stuloQ concealed in an old engine-house, several persons kept watch, and one \,y gomo of the prisoners came alone in the night, and took the property out of"''icrper- the engine-house, on which he was immediately seized, and dropped the " bag, in which the property was among some standing corn, and shortly afterwards the other prisoners came up, and carried the bag away. After telling the jury that they must be satisfied that all the prisoners knew that there was stolen property in the engine-house, and that they took it away with a common design, Patteson, J., proceeded, " but if you do believe that, then another difficulty arises, for, if you believe that *lhey all went away together, then the question will arise, whether *248 all were not the stealers ? There is no evidence that any other person stole the property; if there had been evidence that some one person had been seen near the house from which the property was taken, or there had been strong suspicions that some one person stole it, then those circumstances would have been evidence that the prisoners re- ceived it, knowing it to have been stolen. But, if you are of opinion, that some other jjcrson stole it, and that the prisoners knew of that fact, and planned together in order to get the property away, they may be convicted of receiving. I confess it appears to me, on this evidence, rather dangerous to convict them for receiving. It is evidence on which persons are constantly convicted of stealing. The question is, whether you are satisfied that they were the stealers or the re- ceivers !"(/) But a statement by the prisoner that he received the stolen property Butastiite- from another person is sutRcient. On an indictment for receiving a™":"'''^'^ " stolen shirt, it appeared doubtful whether the principal felony had not h-iving been committed by several persons, and the only evidence against the received is xi • i- .1 I ■ . 1 . .111 sufficient, prisoner was tlie possession or the shirt, and a statement made by her that she had received it from another person ; it was objected that there was no evidence of receiving; Littledale, J., "In a case on the early part of this circuit, the only evidence was recent possession, and the counsel for the prosecution urged that that was evidence of receiving, (/) Reg. V. Lyons,* 1 C. & Mars. 217. h/) Reg. V. Silversidcs, T. T. 1842. 11 Law J. Mag. C. 82. (/) Rex V. Denslcy,'' 6 C. & P. 399. invite ;iii interview with the owner, and afterwards receive the goods under mere colour of an a^^encv t)ut really to make a profit out of the larceny, he is within the statute against re- ceiving stolen goods. The People v. Wiley, 3 Hill, 194.] » Eng. Com.. Law Reps. xli. 122. »> lb. xxv. 457. 248 OF RECEIVING STOLEN GOODS. [bOOK IV. but I held that it was not. I hold it essential to prove that the pro- perty was in the possession of some one else before it came to the pri- soner ; here the prisoner said some one brought the shirt to her; that Other cir- is an admission that it had been in the possession of some one else, cumstan- rpjj.^j. jg evidence of receiving."(_y) And where a mother, her son, and a third party, were indicted for sheep stealing, and the only evidence against the mother was, that the house in which the carcase of the sheep was found, was her house, but there were no female footsteps seen near the spot from which the sheep was taken, but only male footsteps, which were traced to the son and the other prisoner; and there was distinct evidence affecting the son and the other prisoner, and the son lived in the same house with his mother : Parke, J., told the jury that there was no evidence to put the mother on her defence for stealing, whatever evidence there might be of receiving. (A) If the in- If an indictment allege that the goods were received from the thief, alle'-etbat ^^ niust bc provcd that they were received from the thief, and if it the goods appear that the thief gave them to a person, from whom the prisoner were re* received them, it is a fatal variance. The prisoner was indicted for ceivcd from _ _ ' _ _ ^ a particuhir receiving stolen goods, and the indictment alleged that he received them person it froin the person who stole them, and that the person who stole them was proved that a certain ill-disposed person to the jurors unknown; it was proved that theywere t^g person who stole the property handed it to J. 8., and that J. S. de- from some livered it to the prisoner, and Parke, J., held that on this indictment it Buch per- -was necessary to prove that the prisoner received the property from the ^°°' person who actually stole, and he would not allow it to go the jury to say whether the person from whom he was proved to have received it *249 was an *innocent agent or not of the thicf.(i] So where an indictment charged Woolford with stealing a gelding, and Lewis with receiving it, knowing it to have been " so feloniously stolen as aforesaid," and Wool- ford was acquitted; Patteson, J., held that Lewis could not be convict- ed upon this indictment, and that he might be tried on another indict- ment, charging him with having received the gelding, knowing it to have been stolen by some person unknown. (j) But if there But where some prisoners are indicted as principals and some as re- is a count ceivers, and the indictment contains, as it maj,[k) separate counts stantivo against each receiver for a substantive felony, although all the princi- felony the pals arc acquitted, the receivers may be convicted and sentenced. An ^'^ggQjj_ indictment charged three prisoners with stealing a carpet bag and a victed, number of articles therein contained, and two other prisoners with re- *ri'ncipal '° cciving separately certain of the goods so stolen as aforesaid, and there be acquit- Were two Other counts, each of them charging one of the two last-men- *®'*- tioned prisoners Avith a substantive felony in separately receiving por- tions of the same goods, and the jury acquitted the three principals, but found the receivers guilty ; it was moved in arrest of judgment, that the principals having been acquitted, no judgment could be given against the receivers : that a larceny committed by another person could not be given in evidence upon this indictment, and although a count for a substantive felony might be inserted; such count was only (^r) Rex V. Sarah Cordy, Gloucester Lent Ass. 1832, MS. C. S. G. (A) Arundel's case, 1 Lew. 115. (?) Elsworthy's case, 1 Lew. 117. (y) Rex V. Woolford, 1 M. & Rob. 384. (k) See Rex v. Austin, ante, p. 246. CHAP. XXVII.] OF ftECBIVlNG STOLEN GOODS. 249 introduced to prevent an acquittal, if it turned out that the property was recuived from some other person, but still the principiil must be proved to have committed the felony; but the objection was overruled, and judgment given against the receivers. (/) If two prisoners are charged jointly with receiving stolen goods, a Upon a joint act of receiving must be proved; and proof that one received in P*!'":^ "'^ the absence of the other, and afterwards delivered to him, will not suf-coivin-,' u fiee. Successive receivers arc all separate receivers, and all punishable J"'"'' '"^■' 1 rn • T 1 1 nt -M • 1 • , Ceipt UlUHt as such. 1 wo prisoners, John and J>lary iMessingham, were convicted bo proved, on a joint indictment for receiving fifty pounds weight of pork. The pork had been stolen by some person unknown, and both prisoners knew it to have been stolen; it was found in the cottage of Mary M., in which John JM., her son, lived with her. The voluntary statements of the prisoners showed that John received the pork in the absence of Mary, and took it into the cottage when she was not at home, and that Mary afterwards salted it. It was objected that Mary could not be legally convicted jointly with John upon this indictment, because the offence of John was complete before Mary took any part in the transac- tion ; and, upon a case reserved, the judges were unanimous that, on a joint charge, it was necessary to prove a joint receipt; and as the mo- ther was absent when the sou received, it was a separate receipt by him.(m) But it has since been holden that where a person knowing goods to Servant ro- bave been stolen, directs his servant to receive them into his i}remises/T'^''"S ''y 11 • p 1 1- • /• 1 -1 tlic clircc- and the servant in pursuance ot tliat direction, afterwards receives them non of his in the master's absence, the servant knowing that they had been stolen, "lister. they may be jointly indicted for receiving them. Upon an indictment against two principals for receiving goods, and *against Miller and *2o0 Ilolborne for receiving the goods knowing them to have been stolen, it appeared that the principals brought the goods to Ilolborne's ware- house, and left them with iMiller, who after some hesitation, accepted them ; Ilolborne was at this time absent; but it was clear on the facta that shortly after he came home, he was aware of the goods having been left, and there was strong ground for suspecting that he knew that they had been stolen ; it was also clear that his servant Miller, soon after the goods were left with him, was aware they had been unlawfully pro- cured, as he was found disguising the barrels in which they were con- tained; it was submitted for Ilolborne, that as the goods were in the first instance received by Miller in Ilolborne's absence, the indictment, alleging a joint act of receiving could not be supported, even though the jury thought that Holbornc, when he came in, assented to the un- lawful act of his servant, and the preceding case was cited; for the pro- secution it was contended that there was some evidence to go to the jury, that Ilolborne, even before he went out, must have been aware that the goods were about to be left at the warehouse, and must have given orders for their reception, and if Miller took them in, in pur- suance of previous orders from Ilolborne, the prisoners might be con- victed of a joint receiving. jMaule, J., thought there was sufficient evidence of this nature and told the jury that if they were satisfied that Holbornc had directed the goods to be taken into the warehouse, know- (l) Repf. V. Pulnara,» 9 C. & P. 280, Guriicy, P.. (to) Rex V. Messingham, R. & M. C. C. R. 'Ibl. * Eng. Com. Law Reps, xxxviii. 121. 250 OF RECEIVING STOLEN GOODS. [BOOK IV. ing thona to have been stolen, and that Miller in pursuance of that di- rection, had actually received thcni into the warehouse, he also know- ing them to have been stolen, they might properly convict both of the prisoners. (n) Where husband and wife are jointly indicted for receiving stolen goods, and there is no evidence to show that the wife was present, or of her conduct when they were received, she ought not to be convicted if the husband is.(o) The thill"- It is sufficient if the thing received be the same in fact as that which received -was Stolen, though passing under a new denomination ; so that where stated un- ^^^ indictment charged the principal with stealing a live sheep, and the tier a dif- accessory with receiving ''■ twenty pounds of mutton, part of the goods," no^minatlon*-*^^"' ^^^'^ conviction was holdcn to be proper (jj) from that But where an indictment charged one prisoner with stealing six pro- stolon, missory notes of 100^. each, and the other prisoner with receiving the Proceeds of said promissory notes, knowing them to have been stolen, and the only stolen evidence against the receiver was that at one time he showed a number of 20^. notes, which he said were part of the prosecutor's money, and at another time he threw down a sovereign, saying, '' I had a hundred sovereigns of the captain's money, and this is one of them :" it was held that if the prisoner never received either of the 100/. notes into his possession, he must be acquitted upon that indictment. He was not here charged with receiving the proceeds ; this indictment imputed that he received " the said promissory notes ;" now the only notes mentioned in the indictment were the notes of 100?. each-dy) Where some priso- *251 ^^^'^ were charged with feloniously *" receiving, harbouring, comfort- ing, assisting, and maintaining" other prisoners, and the prisoners who were charged with harbouring, &c., had been found in possession of various sums of money derived from the disposal of the property stolen, but it did not appear, although they were in frequent communication with the principals, that they had received any of the stolen property itself, or done any act to assist the principals personally. Law, R., after consulting Littledale and Patteson, Js., said, that " in their opinion the proof amounts to evidence of an imperfect receiving, and not to the offence charged in the indictment." (r) The averment of the guilty knowledge, which is the gist of the offence, should be correctly made; as where an indictment against a re- ceiver who was tried with the principal, contained a defective statement, that the receiver knew the goods to have stolen (omitting the word ''been,") the judges thought the indictment bad, this being the gist of the offence; but they afterwards took time to consider. (s) (n) Reg. V. Parr, 2 M. & Rob. 346. (o) Rex V. Archer, R. & M. C. C. R. 143, ante, vol. 1, p. 19. See note {i-f . 'p tence or upon account of helping any person to any chattel, money or 4^ c. 29, s. valuable security, or other property whatsoever, which shall by any 58. Takin;; felony or misdemeanor have been stolen, taken, obtained, or converted fonutpii'" as aforesaid, shall (unless he cause the offender to be apprehended and to the re- brought to trial for the same) be guilty of felony, and being convicted '^j'yy °' thereof, shall be liable to the discretion of the court, to be tran.«ported pert)- wit); beyond the seas for life, or for any term not less than seven years, or to ?"^ I'u'"^" be imprisoned for any term not exceeding four years, and if a male, to oflender to be once, twice, or thrice publicly or privately whipped (if the court shall '""l"'- * so think fit), in addition to such imprisonment."(a) nor, fession vras prima facie evidence against the accessory : but see Rex v. Turner, ante, vo). I p. 42. (d) Rex V. Dann,R. & M. C. C. R. 424. See this case, ante, vol. 1, p. 834. h) Ante, p. 131. (a) As to principals in the second degree and accessories, see sec. CI, as to bard laboui' and solitary confinement, see sec. 4, and tbe 1 Vict. c. 90, s. 5, ante, p. li;8. 254 OF TAKING A REWARD FOR HELPING, ETC. [bOOK IV. As to the In a case upon a statute relating to the same subject, 4 G-eo. 1, c. 11, ^hauhe' ^°^ repealed hj the 7 & 8 Geo. 4, c. 27, it was considered proper to aver, i.fiFender that the defendant had not apprehended, or caused to be apprehended, " ^°''^jj*°^_ the principal, &c., such reservation being in the enacting clause, and part ded, nor of the description of the offence. (?v) In a case where the principal felon caused to ^j^g dgad, and had not been convicted of the offence, it was objected ne appre- , ' ... i i i i i i i j bended, tho that the pcrson receiving the reward to help to the stolen goods could not principal, \)q couvictcd. The point was reserved as one of great importancCp and of the first impression, for the consideration of the judges : but their As to tho opinion was never publicly communicated, though it was presumed, from onhe'p'rin- ^^^ prisoner being discharged, after remaining some time in gaol, that cipal felon, the objection prevailed. (c) With respect, however, to another objec- tion, that the principal felon had not been convicted of the offence, it was well observed that this could not have been the ground of the pri- soner's discharge, inasmuch as the statute, by the very terms of it, pre- cluded the supposition of a conviction of the principal being a necessary preliminary to the trial and punishment of the offender; for it stated that the offender should be guilty of felony, &c., "unless he did appre- hend, or cause to be a2)prehended, the felon who stole the goods, and cause such felon to be brought to his trial for the same, and give evidence against him." And it was therefore suggested, that the true ground of the doubt was, that by the death of the principal, the stipulated con- dition had become impossible to be performed without any default of the defendant. ((^/) The princi- There is also a case upon the repealed statute, where the principal pal felon fg^QQ ^ot only was not convicted, but was admitted as a witness against witness the party indicated for taking a reward ; namely, the case of the notorious against the Jonathan Wild, whose extensive traffic in the taking of such rewards is dieted for said to have been the occasion of the passing of this clause in the re- taking the pealed statute. (e) The prisoner was first indicted on the 10 & 11 Wm. rewar . g^ ^^ 23^ ^jjq^ repealed) for privately stealing a box of lace in a shop, and acquitted upon its appearing from the testimony of one Kelly, who had actually stolen the box, and who was admitted as a witness for the crown, that the prisoner was not in the shop at the time, but only waited at the corner of the street to receive the goods ; but immediately upon this acquittal he was again arraigned, tried, and convicted, on the statute in question, 4 Geo. 1, c. 11, s. 4, for receiving ten guineas from the owner of the shop as a reward for helping her to the box of lace so stolen by Kelly ; and Kelly was again examined as a witness on the part of the crown on this indictment. (/) In a late case it was held to be an offence within this act of 4 Geo. 1, c. 11, s. 4, (now repealed,) to take money under pretence of helping a man to goods stolen from him, though the prisoner had no acquaintance with the felon, and did not pretend that he had, and though he had no power to apprehend the felon, and though the goods were never re- stored, and the prisoner had no power to restore them.r*/) {})) 1 East, P. C. c. IG, s. 155, p, 771. (c) Drinkwaters case, 1740. 1 Leach, 15. 2 East, P. C. c. 16, s. 155, p. 770. And see Wild's case on the statute 5 Anne, c. 31, s. 6. 2 East, P. C. c. 16, s. 142, p. 746. (1 wrought or unwrought, with a blue streak in the middle, or any other forfoitinp stores with the broad arrow by stamp, brand, or otherwise, upon pain tl'" c"ods, ., , 1 -^ 1 1 11 1 11 nn-i 200/., that every such person or persons, who shall make sucit goods so ^tc. (rt) Made a public act by 1 Geo. 1, st. 2, c. 25, s. 14. 257 OF UNLAWFULLY RECEIVlNa OR HAVING [BOOK IV. markc d as aforesaid, not being a contractor with his majesty's princi- pal officers or commissioners of the navy, ordnance or victuallers, for his majesty's use, or employed by such contractor for that purpose as aforc^^aid, shall for every such offence forfeit such goods, and the sum of two hundred pounds, together with costs of suit;" one moiety thereof to his majesty, and the other moiety to the informer, to be recovered by action of debt, &c., in any court of record at Westminster. *258 And the second section enacts, " that such person or persons, in whose Sec. 2. custody, possession, or keeping such goods or stores marked as afore- wh^sTpoT- ^^^^ shall be found, not being employed as aforesaid, *and such person- session or persons who shall conceal such goods or stores marked as aforesaid, stores so ijeing indicted and convicted of such concealment, or of the having such marked ... . . . shall be gfiods found in his custody, possession, or keeping, shall forfeit such fiiund and goo(jg^ and the sum of two hundred pounds, together with the cost of concealing prosecution, one moiety to his majesty, and the other moiety to the in- such store?, former, to be recovered as aforesaid, and shall also suffer imprisonment, the goods until payment and performance of the said forfeiture, unless such person and 20(1^. ■ shall upou his trial, produce a certificate under the hand of three or 'rfs^ned^ ^^^'^ *^^ ^^^ majesty's principal officers or commissioners of the navy, till pay- ordnance, or victuallers, expressing the numbers, quantities, or weights ment. ^f gugji goods, as he or she shall then be indicted for, and the occasion Sec. 4, and reason of such goods coming to his or her hands or possession." Provision gut i]^q statute provides, that the principal officers or commissioners commis- ^f the navy, &c., may sell and dispose of any of the stores so marked, sioners of as they might have done before ; and that persons buying such stores of &c "mav' ^^^ principal officers, &c., or by their order, may keep the same without sell stores; incurring any penalty, upon producing a certificate or certificates under and buyers jjjg hand and seal of three or more of the said principal officers, &c., sQciirsci i A ■' / from the that they bought such goods from them, or from persons who did buy penalty by jj^g g^^j^j stores from the said principal officers, &c., at any time before cate. such stores were found in their custody. (i) And also, that the act shall not hinder any of the principal officers, &c., or any chief commander of The act not ^"^y of his majesty's ships at sea, to lend any stores to any merchant to hinder ship or vessel in distress, or otherwise, as might lawfully be done be- officers, £Qj,g |.j^g ^^^ . jj^ g,j^gg ^jjg goods so lent be restored with all possible con- lending veniency, and provided the persons borrowing have such certificate as ptores to beforementioned, which the said principal officers, &c., or commander- distress in-chief are required to give to the party borrowing. (c) ■.Tith a cor- The statute 9 Geo. 1, c. 8, s. 3, recites the provision of the 9 & 10 ' ' Wm. 3, c. 41, s. 2, and that it was necessary to give power to mitigate 9 Geo. 1, c. the penalties therein mentioned, and to explain and amend the act : and Persons ^^(^^ euacts " that if any person or persons shall be lawfully convicted having »r of having in his, her, or their custody, any timber, thick stuff, or plank, ^°°r^ marked with the broad arrow, by stamp, brand, or otherwise, or of timber, &c., Concealing any timber, thick stuff or plank so marked, every such to suSer as person so offending shall suffer, forfeit and pay, as for having, keeping, (b) Sec. 4. As to the form of the certificate the section further enacts, "in which certifi- cate or certificates the quantities of such stores shall be expressed, and the time when and where bought of the said commissioners." And it empowers the commissioners or any three of them, from time to time, to give to persons who shall desire the same, and shall have bought any of the said stores, within thirty days after the sale and delivery of the stores. (c) Sec. 8. The 1 Geo. 1, st. 2, c. 25, here introduced in the last edition is repealed by the 2 Wm. 4, c. 40, s. 35, except so much as continues the 11 Wm. 3, c. 7, and 5 Ajine, c. 34. C. S. G. CHAP. XXIX.] POSSESSION OF PUBLIC STORES. 258 or concealing any other warlike, naval, or ordnance stores contrary to 'i ^^^^ ot o J' •' having or said act. ^ concealing The fourth section provides, that it shall be lawful ^'for any judge, other justice or justices, before whom any offender or offenders shall be con-^ '""®*" victed of any of the crimes or offences before recited, enacted or men- Sec. 4. tioned in this act, to mitigate the penalty of the same, as he or they ^'^^^ * shall see cause, and to commit the offender or *offcnders, so convicted, mitigate to the common gaol of the county or place where the offence shall be penalties, committed, there to remain without bail or mainprize, until payment be •SoJ made of the penalty and forfeiture imposed by this or the said former act, or mitigated as aforesaid, or to punish such offender or offenders corporally, by causing him, her(^Z) or them to be publicly whipped, or committed to some public workhouse, there to be kept to hard labour for the space of six months or a less time, as to such judge, justice, or justices, in his or their discretion shall seem meet : anything in the said recited act, or in any other act to the contrary notwithstanding." The succeeding section enacts, that where any dispute shall arise be-Sec. .■>. ns tween the persons on whose information on oath persons offending in the couceruiu' premises, or against the said former act, shall be prosecuted or convicted, penakiLS. touching the right to the forfeitures or penalties, the judge or justice before whom the offender shall be convicted shall examine and finally determine the matter. The statute 17 Geo. 2, c. 40, s. 10, recites the statute 9 & 10 Wm. 3, ir Geo. 2, c. 41, and the 9 Geo. 1, c. 8, as. 3, 4, 5, and that doubts had arisen c.40 re- ' i> 1 • I. cites the 9 touching the method of trial and punishment of offenders agamst those ^t m ^Vm. acts, whether they mifjht be indicted and tried for the offences, and 3, c. 41, and , ' , . , •' . ^. ^ . . ,. -, o ^ • 9 Geo. 1, c. whether anyjudgo, justice ot assize, or justices ot the peace at sessions, ^ ^^^ might hear, try, and determine the same, and on conviction set such fine, doubts or mitigate the same and the forfeitures, &c., or whether such offenders, ^^^^^.q ^^ in order for recovering the said forfeitures, &c. could only be proceeded these sta- ajjaiust by action of debt, bill, &c., in a court of record at Westminster; *"'*f ' o •' . iiri J ^"" enacts, and then declares and enacts, " that it shall and may be lawful to and that judges for any judge, justice or justices at the assizes, or justice of the peace at »* '^'■e "■^- the general quarter sessions to be holden for any county, city, borough, jyg^i^ggj^j or town corporate, to hear, try, and determine by indictment or other- sessions wise, all or any the crimes or offences mentioned in the said recited "*{^.|J^ynf acts ; and that the said judge, justice or justices of assizes, or justices of any uffon- the peace as aforesaid, before whom such offender or offenders shall be ^|^^™^^"^ indicted or tried, and convicted of all or any the crimes or offences in those sta- the said recited acts mentioned, may impose any fine, not exceeding the f"tes, and sum of two hundred pounds, on such offender or offenders (one moiety ^^j. ^,r in' to be paid to his majesty, and the other moiety to the informer;) and li^^u thnreof may mitigate the said penalty and forfeitures inflicted by the said recited |^"j,j^j] acts or either of them, and to commit the offender or offenders so con- victed and fined, to the common gaol of the county or place whore the offence shall bo committed, there to remain without bail or mainprize, until payment be made of the penalty and forfeitures imposed by this or the said former acts, or mitigated as aforesaid ; or in lieu thereof, to punish such offender or offenders in the premises corporally, by causing him, hcr,('AZ) or them to be publicly whipped, and committed to some house of correction or public work-house, there to be kept to hard labour (d) The whipping of females is abolished by the 1 Geo. 4, c. 57, s. 2. {dd) supra, note ( 1 • • 1 • 1 • • Icings pro- socver, denoting the property ot his majesty, his heirs or successors, in perty in or to any warlike or naval ordinance, or victualling stores, or cause, stores, procure, employ, or direct any other person or persons so to do, f ^'''rj- *262 By the seventh section provision is made for the mitigation of *pun- <;ec. 7. pro- (g'S But the pillory is now abolished by the 56 Geo. 3, c. 138, and I Vict, c. 23. (A) See note ( °^ commissioners of the navy, &c. to search and detain any barge, and persons boat Or Other craft, reasonably suspected to contain any stores, &c. em- conveying bezzled or unlawfully procured ; and apprehend the persons reasonably them may suspected of having, or conveying them in such barge, &c. and convey ^h'^At**"^" ^^^'^j together with the stores, &c. before a *commissioner of peace, who '*OQg is to commit, bind over, or otherwise deal with such persons according to law, in respect of the marked stores, &c.; and in respect of the stores, &c. not marked, but nevertheless reasonably suspected to be the pro- (j) See note (g), ante, p. 260. (J)') See note (. Ilarman, {?, Acne,) 2 Lord. Rayra. 1104. 268 OF UNLAWFULLY RECEIVING OR HAVING [bOOK IV. 3, c. 89, oflfences may be included in the same indictment.(«) It is said to have iornod^in ^^^^ agreed that, although an indictment state that the prisoner, " then the same or at any time before not being a contractor with or authorized by the indictment, pj-jncipal officers or commissioners of our said lord the king, of the negativo navy, ordinance, &c., for the use of our said lord the king, to make any averment gtores of war, &c. ;" yet, that it is not incumbent on the prosecutors to prisoner prove this negative averment, but that the defendant must show, if the not being a truth be SO, that he is within the exception in the statute. (t;) con rac or, j^ appears to have been holden in one case, that the informer was an interested witness, as being entitled to a moiety of the fine of 200?., on informer ^ prosecution on the 17 Geo. 2, c. 40, s. 10, and 9 & 10 Wm. 3, c. 41, being a though it was urged that it was in the discretion of the judge to inflict witness. g^ corporal punisment in lieu of the fine, and the witness was rejected. (w) But, in a subsequent case. Lord Kenyon, C. J., said, that he had consi- dered the objection to the competency of the informer's being a witness on the ground of interest ; and that, as the statute had given the court a power, at their discretion, either to inflict a corporal punishment, or to impose a fine in case of conviction, and as it was only in case a fine was imposed that the witness could expect to derive any benefit (an un- certainty depending upon the judgment of the court,) he was then of opinion that the objection went to the credit, not to the competency, of the witness, and that, therefore, his evidence was admissible. (.^;) As to the It appears to have been holden that, where a peace-officer, in search- considered ii^a ^^^ other goods, discovered naval stores, and in consequence of such as an discovery by him an information was filed against the offender, such informer, peace-officer was to be deemed the informer. (y) But where a witness stated, that though no information respecting the stores in question had been given to the Admiralty until the time of the seizure, yet that he made the seizure in consequence of information given to him, by an- other person, of the stores being in the defendant's possession, it was ruled that the witness was not to be considered as the informer, and that the informer was the person upon whose information the seizure had been made, not he who had made the seizure in consequence of such information. (2) Corporal With respect to the power of the court to inflict corporal punishment, ma"?e°''''* ^^'^^^ the authority of the statutes 9 & 10 Wm. 3, c. 41, s.2, 9 Geo. 1, inflicted c. 8, s. 4, and 17 Geo. 2, c. 40, s. 10, it was contended, in a case where Q^i^i^w^ the defendant had been convicted on an indictment charging him in one 3, c. 41, s. ' count with concealing naval stores, and in another with having them in 2, 9 Geo. ijjiis custody, that no such power existed under either of those statutes, and 17 Geo. where the defendant was *ready, and offered to pay the penalty of 2001., 2, c. 40, s. but the Court of King's Bench said it was impossible to raise any * serious doubt upon the point, for that the words of the statutes were in the disjunctive, enabling them either to impose a penalty, or to punish And costs ^^^ offender corporally. (a) In another case, where the defendant was maybe brought up for judgment for a similar off"ence, it was moved on the part By Lord Ellenborough, C. J., in Rex v. Johnson, 3 M. &. S. 550. Willis's case, 1781, 1 Hawk. P. C. c. 89, s. 17. (w) Rex V. Blackman, cor Kenyon, C. J., 1791, 1 Esp. R. 93. (x) Rex V. Cole, cor. Lord Kenyon, C. J., 1794. 1 Esp. 169. (jj) Rex V. Blackman, 1 Esp. 5. (2) Rex v. Banks, 1 Esp. R. 145. (a) Rex V. Bland, 5 T. R. 370. 2 Leach 595. 2 East, P. C. c. 16, s. 148, p. 760. And the latter statute, 39 & 40 Geo. 3, c. 89, s. 1, expressly enacts as to corporal punishment. Ante, p. 260. CUAP. XXX.] POSSESSION OF PUBLIC STORES. 269 of the prosecution, that he should be adjudged to pay the whole penalty awarded of 200/. and the costs, and submitted that the cnurt had the power of "y'^y"" ^ ^ awarding costs under the words of the 9 k lU Wni. 3, c. 41, s. 2. Andc. 41, s. 2. the court adjudged the defendant to pay the penalty of 200/., tof^cthcr with the costs, which were taxed at 12/. (M But the statute 39 «& 40 Geo. 3, c. 89, took away the power of the iJut tho 3!i court to sentence to hard labour. A defendant was brought up for jud"- * "*" ^^''°' nient, after conviction, on the stat. 9 & 10 Wm. 3, c. 41, s. 2, fur unlaw- took aw'av fully having in his possession the king's naval stores, niirked with the ^''<' power king's mark, and judgment was about to be pronounced that he should "ourUo be imprisoned in the house of correction for the county of Surrey, and *^entonco » . there kept to hard labour for three calendar months, and be once during II"/'* that time publicly whipped. This would have been warranted by the statute 17 Geo. 2, c. 40, s. 10, reciting the statutes 9 k 10 Wm. 3, c. 41, and 9 Geo. 1, c. 8 ; but a doubt occurring how far tho power of sen- tencing to hard labour was taken away by the subsequent statute of the 39 & 40 Geo. 3, c. 89, s. 2, the court upon further consideration, and comparing the different provisions of these statutes, were of opinion that the power of sentencing to hard labour was taken away by the latter statute, and therefore pronounced judgment that the defendant should be imprisoned in the house of correction for the county of Sur- rey, for three calendar months, and be once during that time publicly whipped. (c) *CIIAT'TER THE THIRTIETH. •270 OF UNLAWFULLY RECEIVING TACKLE OR GOODS CUT FROM OR LEFT BY SUIP.S; AND OF RECEIVING GOODS STOLEN ON THE RIVER THAMES. The 1 & 2 Geo. 4, c. 75, s. 1, enacts, " that all pilots, boatmen, hovel- 1 A 2 g...... lers, or other persons who shall take up any anchors, cables, tackle, "*• *'• J.^- '• apparel, furniture, stores, or materials, or any goods or merchandise ic, takin;: which may have been parted with, cut from or left by any ship or ves- "P anchor, sel within any harbours, rivers, or bays, or on any of tho coasts of this or goods." ' kingdom, whether the same ship or vessel shall be or shall have been in 'tc cut distress or otherwise, and which shall have been weighed, swept for or [^f"|,"'^ taken possession of by any such boatman, pilot, hoveller, or other per- .'iliiiis, are «• son," shall send a report in writing of the articles so found, and statin"- '""'^'^ "• \^' ' o i>urt to tlio the marks, if any, thereon, and also an accurate and particular dcscrip- deputy tion of tlic bearings, distances, and situations, and the time when and vice-admi- where the same were so found, to a deputy vice-admiral or his agent, at \\a\vqt th" or near to the port or place where such boatmen, &c., shall first arrive aniclos, 4.-. with such articles, within forty-eight hours after their arrival at such port, &c., or before they shall leave the port, if they shall quit it before that time shall expire; and shall also within the same period, deliver such articles so found into a proper warehouse, or such other place as the vice-admiral of each county shall appoint for safe custody, until the same shall be claimed by the owner thereof, or his agent, until the sal. vage, together with such other charges and expenses as are thereinafter (6) Chappel's case, .') T. R. .371, note (a). (c) Rex V. Bridges, K. B., 180G, 8 East 53. Vol. II.— 18 270 OP RECEIVING GOODS STOLEN [BOOK IV. And pilots, directed to be paid in respect of such articles, paid by him or them, or Ac, fraud- gggy^jfy nriyen for the payment thereof, to the satisfaction of the salvor, uleutly ro- ^ to c j in t i toining, and that '' every such pilot, boatman, hoveller, or other person, who Ac, any ^^^^^ wilfully and fraudulently keep possession of, or retain or conceal, tides, or or secretc any anchors or cables, tackle, apparel, furniture, stores, or defacing materials, or any goods or merchandise, or deface, take out, or obliterate IToTrcpo'lu the marks and numbers thereon, or alter the same in any manner, with ing and intent thereby directly or indirectly to prevent the discovery and identi- l'c^'7o"bf' lication of such articles so found, weighed, swept for, or taken posses- guilty of sion of as aforesaid, and shall not report and deliver the same at some receiving pp^^p^j, -warehouse or other place in manner aforesaid, and within the knowing time hereinbefore limited, shall forfeit all claim to salvage, and shall, on them to conviction, be adjudged and deemed guilty of receiving goods knowing stolen. them to have been stolen, and *shall suffer the like punishment as if the *271 same had been stolen on shore."(/>) Pec. 12. The twelfth section enacts, 'ahat if any person shall knowingly and Persons wilfully, and with intent to defraud and iniure the true owner or owners knowing- •" . ii-/--i i ly, &c., thereof, or any person interested therein as aforesaid, purchase or receive purchasing ^^^ auchors, cables, or goods or merchandise, which may have been any an- ^^^' taken up, weighed, swept for, or taken possession of, whether the same chors, sijall have belonged to any ship or vessel in distress or otherwise, or or^ioodf "' whether the same shall have been preserved from any wreck, if the tak'en up, directions hereinbefore contained with regard to such articles shall not ^'^' liave been previously complied with, such person or persons shall, on conviction thereof, be deemed guilty of receiving stolen goods, knowing the same to have been stolen, as if the same had been stolen on shore, and suffer the like punishment as for a misdemeanor at the common law, or be liable to be transported for seven years, at the discretion of the court before which he, she, or they shall be tried.'' Pec. 13 re- The statute then requires, that in case any master, &c., of any ship quires bound to parts beyond the seas, shall find and take on board any anchor, Ac. of ' &c., or any goods, &c., or shall receive such articles on board from any ships going Q^jigj. person who may have found the same, knowing the same to have findi^no-^oi' been so found, the master, or other person having the command of the receiving ship, shall make a true entry in the log-book of the description of the anchors, articles, stating the marks, and the bearings, time, &c., when taken on board, and shall transmit a report on the first opportunity to the Trinity House, and on the return of the ship shall deliver up the articles into the possession of a deputy vice-admiral, or his agent, within twenty-four hours, with a similar report; and for default imposes a pecuniary penalty not exceeding 1001. (c^ Sec. 15. The fifteenth section, reciting that "pilots, hovellers, boatmen, and makes the other persons in small vessels, have for many years conveyed anchors anchors"" ^^^ cables which may have been weighed, swept for, or taken posses- and cables sion of by them as aforesaid, or which they may have purchased of other obtained^by pei-gQQs^ knowing them to have been weighed, swept for, or taken pos- Bweeping session of, without being reported as aforesaid, to foreign countries, and for, Ac. there sold and disposed of, to the manifest injury and loss of the owners thereof," enacts, <.5€. agreciiu-nt. Comnionwfiiltli v. Ilcarsoy, 1 Mass. Rep. 137. Nor is an intention to cheat, indietibk' at common law. roinmonwcaltii v. Moore, 2 Ma.'JS. Ro]). 13f). At common law. it is an indictable offence, to cheat any man of his money, goods, or chattels, by false tokens, or by using false weights and measures, but not by false afrirmalions only without using any false tokens, weights or measures, and by no conspiracy ; but the party cheated may pursue a civil remedy for the injury. The statutuc of 33 11. 8, c. 1, has been considered here as a part of our common law. The object of the law is to protect persons, who in their dealings use due diligence and i)recaution, and not those who suffer through their own credulity and negligence. But as jirudcnt jiersons may be overreached by means of false weights and measures, or by false tokens or by a conspiracy, where two or more [persons confederate to cheat, frauds effected in cither of these ways are punishable by indictment. The English statute of 30 G. 2, c. 24, punishing cheats by false pretences, is not in force in this state. ComraonwcaUb v. Warren, G Mass. llep. 72. Jg^" Since the case of the Commonwealth v. Warren, a statute has been passed in this state, (1815, eh. 13G,) for the punishment of cheats by false pretences, which is a transcript of 30 G. 2, c. 24. By the second section of this statute, the .Supreme Judicial Court, and the Municipal Court of the city of Boston, have exclusive jurisdiction of all gross frauds or cheats at common law. Nkw York. — To constitute a cheat or fraud at common law, the act must be such a fraud as would affect the public, — such a deception as common prudence cannot guard against it ; as by using false weights or measures, or false tokens ; or where there is a conspiracy to cheat. Where A. had a judgment against B., and B. came to A. and said he would settle it, by paying money in part, and giving a note for the residue ; on which A. drew a receipt in full in discharge of the judgment, and B. got possession of the receipt without paying the money or giving the note; the indictment charged him with having obtained the receipt falsely, fraudulently and deceitfully, and under false arts, colours, and pretences, and under pretence that he had the money in his pocket, and would pay it immediately and give his note for the residue, it was held upon these facts, that there was no false token, but only a false assertion, and that an indictment would not lie. There were a motion in arrest of judgment in this case, whicli succeeded. The court say, " In the j)resent case we search in vain for the false token. Tliere was nothing beyond the defendent's false assertion that he was ready to pay the judgment ; there was not even tlic jiroduction of either note or money, and common prudence would have dictated the withholding the receipt until the money was paid, and the note drawn. To support this indictment would be to overset established principles." The People v. Babcock, 7 Johns. Rep. 201. {See also 14 Johns. 371, People v. Miller. 9 Cowen, 578.} A person that obtains goods under a pretence that he lived with, and was employed by A. B. who sent him for them, is indictable for obtaining goods by false pretences, under the statute sess. 3G. c. 29, s. 13. The statute provides that if any person shall knowingly and designedlj', by false pretence, obtain any monc}', goods, or chatties, &c., with intent to cheat or defraud any person, he shall be punished. &c. This is a transcrijit of the English statute of 30 G. 2. ch. 24, which, according to the English decisions, has been considered as extend- ing the common law offence of cheating, and as introducing a new rule of law. The stat- ute of 9 Geo. 2, is considered in England as extending to every case where a party has ob- tained money or goods by falsely representing himself to be in a situation in which he was not, or by falsely representing any occurrence that had not h.appcnod, to which persons of ordinary caution might give credit. (4 T. R. 98.) The ingredients of the offence are, ob- taining the goods by false pretences, and with an intent to defraud. If the false pretence produced the credit it has been consi) The i)oint was afterwards brought under the consideration of the Court of King's Bench, who concurred in the direction of Lord Ellenborough, given at the trial j and Lord Ellenborough said, " He who deals in a perilous article must be wary how he deals ; otherwise, if he observe not proper caution, he will be responsible. "(y) A case is reported where the Court of King's Bench held that the Mniaprar- mahi praxis of a physician is a great misdemeanor and offence at com- '\ .. , ii-ir- ?• • physician. nion law, ^whether it be for curiosity and experiment or by neglect,) because it breaks the trust which the party has placed in the physician, and tends directly to its destruction. (;•) *In some cases the rendering false accounts and other frauds practised *278 by persons in oflQcial situations, have been deemed offences so affecting rtendering the public as to be indictable. Thus, where two persons were indicted counts and for enabling persons to pass their accounts with the pay oflBce in such a other way as to enable them to defraud the government ; and it was objected '^"" 7 that it was only a private matter of account, and not indictable ; the official court held otherwise, as it I'clated to the public revenue. (.s) And instances ^'luation*- appear in the books of indictments against overseers of the poor for re- fusing to account, (^) and for rendering false accounts. (;<) And a pre- cedent is given of an indictment against a surveyor of the highways for converting to his own use gravel which had been dug at the expense of the inhabitants of the parish, and also for employing for his own private gain and emolument the labourers and teams of the parishioners, which (p) Rex V. Dixon, cor. Lord Ellenborough, C. J., Guildhall, 1814, 4 C.anipb. 12. Sec pre- cedents for similiir offences, 2 Chit. Crim. L. 55G, et scq. 2 St.trk. Crini. Plead. G82. (7) Rex V. Dixon, 3 M. & S. 11. And some exceptions to tlie indictment, taken in arrest of judgment, were overruled; and the court held that the indictment was sufficiently cer- tain without showing what the noxious materials were, or stating that the defendant inten- ded to injure tlic children's health. Upon the last point Lord Ellenborough, C. J., said that it was an universal princi])lc, that when a man is charged with doing an act, of which the probable consequence may be highly injurious, the intention is an inference of law resulting from doing the act; and that in this case it was alleged that the defendant delivered the loaves for the use and supply- of the children, which could only mean for the children to eat ; for otherwise they would not be for their use and supply. And sec Rex v. Bower, post, 2lO, note (m). Ir) Dr. Groenvclt's case, ir,Ol, 1 Ld. Raym. 213. («) Rex V. Bcmbridgc and Powell, cited 2 East, 13G. Ante, vol. 1, p. 141. 22 St. Tri. (by Howell.) p. 1. (t) Rex I'. Cummings and another. 5 Mod, ItD. 1 Bott. pi. 370. («) Rex V. .Martin, 2 Campb. 269. 3 Chit. Crim. L. 701. 2 Nol. (2d ed.) 230, note (4) Ante, vol. 1. p. 141. 278 OF CHEATS AND FRAUDS AT COMMON LAW. [BOOK IV. ho ought to have employed in repairing the highways. (x) A case is also mentioned of an application to the Court of King's Bench for an information against the minister and churchwardens of a parish, who had spent the larger part of a sum of money, collected by a brief for certain sufferers by fire, at tavern entertainments, and then returned, upon the back of the brief, that a smaller sum only was collected ; and the court, though they refused the information, yet referred the prose- cutors to the ordinary remedy by indictment. (y) A fraud committed by a parish officer, in procuring the marriage of a pauper, so as to throw the burden of maintaining such pauper on another parish, may also, as we have seen, be an indictable offence. (2) And several precedents are given of indictments for misdemeanors in procuring sick and impo- tent persons, standing in need of immediate relief, to be conveyed into parishes where they had no settlements, and in which they shortly after- wards died, thereby causing great expense to the inhabitants of such parishes. (a) False news. It is said to have been resolved by all the judges that writers oi false news are indictable and punishable ; and that probably at this day the fabrication of news, likely to produce any public detriment, would be considered as criminal. (/^) Fraud in Where an indictment charged that the defendant, being an appren- an appren- ^{(.g^ ^^^^ fraudulently intending to obtain money from the paymaster of as a soldiei-, a- regiment, and to defraud the king, &c., procured himself to be en- and obtain- listed as a soldier, without the consent of his mastei', by means whereof king's" ^^ fraudulently obtained from the paymaster divers sums of money, well bounty. knowing himself to be, without the consent of his master, disqualified from serving as a soldier, to the great deceit, fraud, &c., of the king, &c., it appears to have been admitted that this was an offence at com- mon law. But the conviction was holden bad, on the ground that the *279 necessary proof of the *indenture of apprenticeship had not been given at the trial, there being two subscribing witnesses to the indenture, and neither of them having been produced. (c) The oflPence is now made punishable by a provision of the Mutiny Acts. Falsely A case is mentioned where a person, falsely pretending that he had protending power to discharge soldiers, took money from a soldier to discharge him ; discharge and being indicted for this oflFence, the court held the indictment to be soldiers. good.((:Z) Fraud by A curious spccies of fraud may be here mentioned. It is laid down . order'tlf ^° ^^ *'^^ books that, by the common law, if a person maim himself in or- havo a pre- dcr to have a more specious pretence for asking charity, or to prevent b^^^V" ^^^ being impressed as a sailor, or enlisted as a soldier, he may be in- ch"' t b dieted, and, on conviction, fined and imprisoned. (c) means of Besides the offences which have been here mentioned, there are other false instances of cheats clearly affectins; the public, and therefore indictable : weights or , , , rr t 1 c /• 7 -7 measures, namely, such cheats as are enccted by means ot jaXse weights or mc,a- {x) 3 Chit. Grim. L. GC6, et seq. llj) Rex V. The Minister, &c., at St. Botolph, 1 Black. Rep. 44.3. [z) Ante, vol. 1, p. 137. Rex v. Tarrant, 4 Burr. 2106. (a) 3 Chit. Crim. L. 698, et seq. And see ante, vol. 1, p. 137. (b) Starkie on Lib. 540, citing 4 Read. S. L. Dig. L. L. 23. JSt vide Hale's Sum. 132, et per Scroggs, C. J. Rex v. Harris, at Guildhall, 1680. 1 St. Tri. (by Howell,) 929, 930. (c) Jones's case, 1 Leach, 202. (d) Serlestead's case, Latch, 202. (p) 1 Hawk. P. C. c. 55. 0/ Maiming, ^-c, s. 4. 1 Hale, 412, Co. Lit. 127, a. CHAP. XXXI. § I.] OF CHEATS AND FRAUDS AT COMMON LAW. 279 sures, which are considered as instruments or tokens purposely calcu- lated for deceit, and by which the public in general may be imposed upon without any imputation of folly or negligence. And this reason- ing is considered as applying to all cases where any species of false token is used which has the semblance of public authenticity :(/) as to a case where cloth was sold with the alneager's seal counterfeited thereon ;(r/) and to another case where a general seal or mark of the trade on cloth of a certain description and qualify was deceitfully coun- terfeited. (/t) And the instances mentioned in the books of clioating by means of false dice, &c.(/) are referred to the same principle. (y) If, therefore, a person selling corn should measure it in a bushel short of the statute measure, or should measure it in a fair bushel, but put something into the bushel to help to fill it up, it seems that he might be indicted for the cheat. (^/i-) And a precedent was given of an indictment against a baker, who had contracted with a guardian of the poor, in the city of Norwich, to supply bread for the use of the poor, for delivering bread deficient in weight. (?) And though the knowingly exposing to sale and selling wrought gold, under the sterling alloy, as and for gold of the true standard weight, was holden not to be an in- dictable offence, but a private imposition only, in a common person, ■where no false weight or measure was used;(?») *yet if in such case the *2S0 stamps or marks, required ly statute on plate of a certain alloy, had been falsely used, it should seem that an indictment might have been sustained. (71) la the case in question the gold was not marked : and Aston, J., in giving his opinion, said that it was not selling by false measure, but only selling under the standard ; and he cited a case in which it had been holden that selling coals under measure was not an indictable offence, but that selling them by false measure was.(rA And the result of the cases upon this subject appears to be that if a man sell h J fa he icci(jh(s, though only to one person, it is an indictable oflfence ; but if without false weights he sell to many persons a. less quant i(j/ than he pretends to do, it is not indictable. (p) (/) 2 East, P. C. c. 18, s. 3, p. 820. ( Anne, c. 14. (j) 2 East, P. C. c. 18, s. 3, p. 820. {k) Per Cur. in Pinckney's case, 2 East, P. C. c. 18, s. 3, p. 820. As to the penalties for selling or buying corn otherwise than by the proper measure, see 1 Burn's Jus. Corn. (I) 2 Chit. Crim. L. 5.'j'J ; but it has since been held bad ; ibid. As to the assize of bread, &c., sec 1 Burn's Just., Bread. (ill) Re.\ V. Bower, Cowp. 323. In thi.^ case the sale of the gold was by a servant of the defendant ; but the court agreed that the master was re?{)onsil>le for the act of his servant (lone in the course of his employment, and within the scope of his authority. And see as to this point. Ilex v. Dixon, ante, p. 277. That it would be indictalile in a goldsmith to sell gold, (under the statute) see 2 East, P. C. c. 18, s. 3, p. 820, and Cowp. 324. (h) 2 East, P. C. c. 18, s. 3, p. 820, note (b). And sec 1 East, P. C. c. 4, s. 34, p. 194. where it is said that offenders fraudulently aflfi.xing public and authentic marks on goods of u value inferior to such tokens, are liable to suffer at common law upon an indictment for u cheat. ((>) The case cited was Rex v. Lewis. And the learned judge also cited Rex v. WheatJN. 2 Burr. 112."), /JO.f^ 28ri. Sec also Hex v. Drifhcld, Say. 146. (p) Per Buller, J., in the case of Young and others, 3 T. R. 204. And sec Rex »'. Nichols- son, cited in Rex i-. Whcatlcy, 2 Burr. 1130, and Rex v. Dunnage, 2 Burr. 1130, Rex v. Drif- iieid, Sav. 146. 280 OF CHEATS AND FRAUDS AT COMMON LAW. [bOOK IV. Hut cheats JJut though in the cases which have been thus mentioned, an indict- effoctoJ in "^cnt may, and in most of them clearly is, maintainable as for a cheat the course or fraud at common law, on the ground that they consist of offences of private ^1j5(.|j affect, or may affect the public, being public in their nature, and tions be- calculated for the purposes of general fraud and deceit ; yet, other tweon intli- c^ses, consisting of cheats or frauds, effected in the course of private under a transactions between individuals, fall under a different consideration, different This distinction, however, docs not appear to have been at all times pro- tio'n.' ' " P'^i'lj noticed : and in a book of great authority, cheats, punishable at common law, are defined as " deceitful practices in defrauding or endea- vouring to defraud another of his known right by means of some artful device contrary to the plain rules of common honesty ."(5') But this Unless they definition has been observed upon as not sufficiently distinct or accu- araount to ^.^^^ ^^^ many of the authorities, from whence it seems to have ori- conspiracy . ' J ^ . . ' , ,. . . or forgery, ginatcd, not involving considerations, either of public justice, public which arc j.j^.j^jg^ or public policy, have been said to be founded either in conspi- oflfences. I'^cy or forgery, which are in themselves substantive offences, and the latter of which was usually, when successful, prosecuted as a cheat, be- fore the various statutes, by which forgeries were, in so many instances, made capital offences. (r) Cases of Thus the case mentioned where the suppression of a will was holden cheats [q }jg indictable as a cheat, (s) is said to have been probably a case of to conspi" conspiracy or combination. (<) And the same explanation is given(«) racy. of the case where several persons were indicted for causing an illiterate person to execute a deed to his prejudice, by reading it over to him in *281 words different from those in which it was *written :(v) and also of the case of a person who was convicted upon a charge of having run a foot race fraudulently, and with a view to cheat a third person, by a previous understanding with the running competitor to win.(x) Mackarty In another case of a cheat at common law, which has undergone con- andForden-g;(jgj.j^]tjjg discussion, the indictment charged the two defendants. Mack- ooursTii s . . arty and Fordenbourgh, that they falsely and deceitfully intending to case. Cheat ef- defraud one Chowne of divers goods, together deceitfully bargained conqnracy^; with him to barter, sell and exchange a certain quantity of intended where ono wine, as good and true new Portugal wine, of him the said Forden- Tendedtobe^^^^'S^j for a certain quantity of hats, of him the said Chowne; and a merchant upon such bartering, &c. the said Fordenbourgh pretended to be a mer- and the chant of London, and to trade as such in Portugal wines, when, in fact, other a ' 1 • • i i ■ ^ broker;andhe was no such merchant, nor traded as such in wines; and the said as such Mackarty, on such bartering, &c. pretended to be a broker of London, bad wino when, in fact, he was not : and that Chowne, giving credit to the said for hats, fictitious assumptions, personating, and deceits, did barter, sell and ex- (q) 1 Hawk. P. C. c. VI, s. 1. (r) 2 East, P. C. c. 18, s. 2, et seg. p. 817, ef seq. The distinction betvreen forgery andthe general class of cheats was well settled in Ward's case, Hil. T. 13, G. 1. 2 Lord Raym. 1461. 2 Str. 747, 2 East, P. C. c. 19, s. 7, p. 860, 861, It was there shown to be imma- terial to the offence of forgery, properly so called, whether any person were prejudiced or not, provided any might have been prejudiced : but that to constitute a cheat, properly so called, there must be a prejudice received both at common law, and under the statutes 33 Hen. 8, c. 1, and 30 Geo. 2, c. 24, now repealed. (.s) 1 Hawk, P. C. c. 71, s. 1, citing Rex v. Brereton and others, Noy. 103. (t) 2 East, P. C. c. 18, s. 5, p. 823. (u) lb. ibid. (v) Rex V. Skirret and others, 1 Sid. 312, cited in 1 Hawk, P. C. c. 71, s. 1, and Rex v. Parris and others, 1 Sid. 431. (z) Rex V. Orbell 6 Mod. 42, cited in the note to 1 Hawk. P. C. c. 71, s. 1. CHAP. XXXI. § I.] OF CHEATS AND FRAUDS AT COMMON LAW. 281 change, to ForJenbourgh, and did deliver to Mackarty, as the broker between Chowne and Fordcnbourgh, for the use of Fordenbourgh, a certain quantity of hats, of .suc-h a value, for so many hugshcads of the pretended new Portugal wine ; and that Mackarty and Fordenbourgh, on such bartering, &o. affirmed that it was true new Lisbon wine of Portugal, and was the wine of Fordenbourgh, when in fact it was not Portugal wine, nor was it drinkable or wholesome, nor did it belong to Fordenbourgh; to the great deceit and damage of the said Chuwne, and against the peace, &c.(y) Upon this case considerable doubts were en- tertained ; but it seems that, ultimately, judgment was given for the crown, and that the true ground of such judgment was, that it was a case oi cons2)iraci/.[z'j And even if it were not a case of conspiracy, yet as the cheat was efFected by means of bartering pretended port wine, wliich the indictment alleged was not wholesome, or fit to drink, the vending of such an article for drinking was clearly indictable;^*/) and within the principle already mentioned, of cheats or frauds, by which the public may be affected. ^/j) In one of the principal case? where the cheat was effected by means Oover'a of & forfjed instrument, the indictment charged that the defendant, in- "|•■"^• tending to cheat J. S., did deceitfully take upon himself the style and fectod by character of a merchant, and did deceitfully affirm to J. S. that he was means ofi» a merchant, and had received divers commissions from Spain ; and, in gtrument. order to induce J. S. to believe the same, and to *give him credit, the *282 defendant deceitfully produced to J. S. several paper writings, which he fahdij affirmed to he letters from Spain, containing commissions for jewels, watches and other goods, to the amount of 4,000/. ; by means whereof the defendant got into his liands two watches, the property of J, S. : whereas, in truth, the defendant was not a merchant; and the paper loritings, containing such commissions, were false and counterfeit. And it does not appear that the indictment concluded against the form of the statute, though the false takens made use of came directly within the 33 Hen. 8, c. 1, (now repealed. )(c] But it is observed, that if this were sustained as an indictment at common law, the fraud being prac- tised in a private transaction, and the false tokens mere private letters, having no semblance of public authenticity, the only ground on which the judgment can be maintained, without going the length of saying that the 33 lien. 8, c. 1, was merely declaratory of the common law, is, that the cheat was effected by means of Vifuryeri/, (in which all are principals at common law;) and that the publication of such forged in- struments, for the purpose of deceit, was itself a substantive offence, in- dictable at common law.((?) And in a case where the defendant was in- Other ca5c.< (y) Reg. V. Mackcrty and Fordenbourgh, 2 Lord Raym. 1179. 3 Lord Raym. 235. 2 Burr. 1120. (2) 2 Lord Raym. 1184. 2 Burr. 1120. 2 East, P. C. c. 18, s. 1, p. 824. Upon a recent discussion of this case, (in Re.x v. .Southcrton, (J East, 133,) it was objected to such con- struction that the word oon.'spired was not in the indictment ; but in 2 East. P. C. vlii xiipra. it is stated thiil, though the indiLtnieut did not charge that the defendants conspireil. CO nomine, it cliarged that they, together, &c., did the acts imputed to them ; which might be considered to l)e tantamount. (rt) By Lord Ellenborough, C. J., in Rex »'. Southcrton, G East. Rep. 133. (J)) Ante, p. 27.'), et scq. The sale of corrupted wine, contagious or unwholesome flesh, &c.. is prohibited by an ancient statute, 51 Hen. 3, st. (5, and the ordinance for linkers, c. 7. under severe penalties. And, by the stnt. 12 Car. 2, c. 25, s. 11, any brewing or adulteration of wine is punished with the forfeiture of 100/. if done by the wholesale merchant, and 40/. if done by the vintner, or actual trader. See 4 Bla. Com. 1G2. (c) Rex V. (iovers, 2 Sav. 200. 2 East. P. C. c. 18, s. 6, p. 824, 825. {d) 2 East, P. C. c. 18, s. G, p. 825. 282 OF CHEATS AND FRAUDS AT COMMON LAW. [bOOK IV. of forgeries tlictcd for falselj and deceitfully obtuiuing 4:501. from one W. Harle, by archoiits at '•' ^^^^^ token, viz. a promissory note, in the name of II. Hales, payable common to J. E., &c. wlth a counterfeit indorsement thereon, the jury were law. directed that they must find the defendant guilty if it appeared to be a forged instrument; the instrument being a false token. (e) But a forgery could not, it seems, be prosecuted at common law as a cheat, unless it were successful ; as in a case where the defendant was convicted of for- gery at common law of an acquittance, the court said, that there was no reason why the oifence should not be punished as a forgery, as well as if the thing fabricated had been a deed, but that it could not be pro- secuted as a cheat at common law without an actual prejudice^ which was an obtaining on the statute 33 Hen. 8.(/) The moro It docs not appear, therefore, that these cases, when duly examined, ■Tc'"^^*^ are contrary to that which has been o;iven as a more accurate definition of cheats, of cheats and frauds, punishable at common law, namely, ''The fraudu- &c., at Jqq(; obtaining the property of another, by any deceitful and illegal ijjv^ practice or token, (short of felony) which affects or may affect the describes j>uhlic.'\ff'j And there are many cases by which it is supported, tend- Iffecii'ifo' ing to show that a cheat or fraud, effected by an unfair dealing and im- tho puba-. position on an individual, in a private transaction between the parties, cannot be the subject of an indictment at common law. Cheats by ^^ several of these cases of impositions upon individuals in private means of a transactions, which have been holden not to be indictable, the cheat was ,^[jgg j^g^""^ efi'ected by a mere false affirmation, or bare lie. Thus an indictment mation, in was quashed, upon motion, which charged the defendant with selling at a private market a sack of corn, which he *falsely affirmed to be a Winchester transaction . ' . •' liolden not bushel, whereas it was greatly deficient, and the court said, that this was tobe m- jjg more than telling a \\G.(h) And an indictment was also quashed (lictable. . ' . . . *9S:Q which charged the defendant with selling to a person eight hundred "^ weight of gum, at the price of seven pounds by the hundred weight, falsely pretending and affirming that the gum was gum seneca, and that it was worth seven pounds by the hundred weight, whereas, in truth, the gum was not gum seneca, but a gum of an inferior kind, and was not worth more than three pounds by the hundred weight. (i) And a case was holden not to be indictable where the defendant obtained money of another, by pretending that he was sent by a third person for it; and Holt, C. J., said, " Shall we indict one man for making a fool of another ? Let him bring his action." (Z^;) In another case the (e) Hales's case, cor. Pengelley, C. B., and other judges, 1729. 9 St. Tri. 75. 2 East, P. C. c. 18, s. 6, p. 825 ; a case of misdemeanor at common law, before the statute making the offence felony. (/) Ward's case 2 Str. 747. And see further the authorities collected upon the subject in 2 East, P. C. c. 18, s. 2, p. 817, note (a), and Id. s. G, p. 825. (g) 2 East, P. C. c. 18, s. 2, p. 818. (h) Pinckney's case, 2 East, P. C. c. 18, s. 2, p. 818, cited in 2 Burr, 1129. But see ante,^). 280 ; that this case might have come under a different consideration if the vendor had fraudulently measured the corn. (i) Rex V. Lewis, Say. 205. Indictments quashed upon motion may be considered as authorities : but no stress can be laid on several cases to be found in the books, particularly in Mod. Rep., where indictments of this kind were refused to be quashed upon motion, be- cause it was the practice of the court, as often declared, not to quash on motion, indictments for offences founded in fraud or oppression, but leave the defend mts to plead ; 2 East, P. C. c. 18, s. 2, p. 818, note (a), citing 5 Mod. 13, G Mod. 42, 12 Mod. 499. (k) Reg. V. Jones, 1 Salk. 379. 2 Lord Raym. 1013. An! see also Reg. «. ITannon, 6 Mod. 311, and 2 Hawk. P. C. c. 71, s. 2 ; and Nohuff' s case, Salk. 151, where the defendant borowed GOO/, of a feme covert, and promised to send her fine cloth and gold dust, as a CHAP. XXXI. § I.] OP CHEATS AND FRAUDS AT COMMON LAW. 283 indictment set forth, that the defendant came to the shop of a mercer, and afTniiiod that ^hc was a servant to the Cuuntcss of Pouifret, and was sent by her from St. James's to fetch silk for the queen, endeavouring thereby to defraud the mercer, whereas, in fact, she was no servant of the Countess of Pomfret, nor was sent upon the cjuccn's account; and it was moved, in arrest of judgment, that this was not an indictable offence, there being no false token, nor any actual fraud committed, and the court arrested the judgment, saying, that the case was no more than telling a lie.(r) And it appears that the same construction will prevail, though the And tlio 'lefcndant make use of an apparent token, which in reality is, upon the ""'"o con- very face of it, of no more credit than his own assertion. (m) An in- will prevail dictmcnt at common law charged that the defendant, deceitfully intend- tlK'ug'i «" mg, by crafty means and devices, to obtain possession of certain lottery tj^j^en bo tickets, the property of A., pretended that he wanted to purchase them "st'd, if it for a vaiuuble consideration, and delivered to A. a fictitious order, for ,1]"]^^^ "rcdit payment of money, subscribed by him the defendant, &c., purporting to than iho be a draft upon his banker for the amount, which he knew he had no r"'''y ? °^^ •■ . ' . . n.ssertion. authority to draw, and that it would not be paid, but which he falsely Liirn'scaso; pretended to bo a good order, and that he had money in the banker's "here tho 1 1 -11 • 1 1 1 • 1 1 • p 1 • 1 1 1 ■ • 1 defendant liands, and that it would be paid, by virtue or which he obtained posses- g^ve a sion of tickets, and defrauded the prosecutor of the value. And the de- check upon fendant having been convicted, the Court of King's Bench arrested the „,'i,igi, i,„ ' judgment. Grose, J., said, " That, in order to make this case some- knew ho thing more than a bare naked lie, it had been said *that the defendant ',,"",. , o ' _ authority to used a false token, for that he gave a check on his banker; but that was draw, and only addinir another lie ; and that if the court should determine that this "'^^t '•; • '^1- 1 1 1 T 1 1 1 1 1 !• /• • -1 would not case was indictable, he did not know how to draw the line, lor it might i^^ ],aid. equally be said that every person who overdrew his banker used a false +284 token, and might be indicted for it." Lawrence, J., said, " It is admit- ted that a mere false assertion, unaccompanied by a recommendation, is not indictable, and, I think, there is nothing in the case beyond the de- fendant's own false assertion. "[?;) So in a case where the defendant. Wilder'.* a brewer, was indicted for a cheat, in sendin"; to the keeper of an ale- '^j''"^; **''"''!'' ' ' . . the defend- house SO many vessels of ale, marked as containing such a measure, ant sent and writing a letter to him, assuring him that they did contain that ve.':.';cls of measure, when in fact, they did not contain such measure, but so much „g contain- less, &c.; the indictment was quashed upon a motion after argument, as ing a cer- containing no criminal charge. (o) Foster, J., indeed, doubted, concern- ^^'j." "'jl'^jj ing this case when it was cited, because it seemed to him that the vessels wrote a let- being mar/^ecZ as containing a greater quantity than they really did, f*^"" "?''''"" WiiTG false tokens.i^i)'^ But as it does not appear that cheating, by vessels con- |ded}re, nnd sent no gold dtist, but some coar.se cloth, worth little or nothing ; and tlic court said that it wa.s not a matter criminal, and that it was the iirosccutor's fault to repose such a confidence in the defend^uit. (/) Re.v V. Bryan, 2 Sir. 80(J. In the case as cited in 2 East, P. C. c. 18, s. 2, p. 810, it is said that the defendant obtained the goods. (m) 2 East, P. C. c. 18, s. 2, p. 819. («) Rex V. Lara, 1796, 6 T. R. 565. 2 Leach, G52. 2 East, P. C. c. 18, s. 2, p. 819. But see in Re.\ v. Jackson, post, p. 819, a diflerent doctrine laid down u|>on an indictment on the statute 36 Geo. 2, c. 24, as to a check drawn on a banker with whom the party keeps no cash. .\nil see Rex i'. Parker, post, p. 298, etscq. {») Rex ('. Wildcrs, cited by Lord Mansfield, and supplied liy Denison, J., in Rex v. Whea tly, 2 Burr. 1128. (p) 2 Burr. 1129. 284 OF CHEATS AND FRAUDS AT COMMON LAW. [bOOK IV. tained such means of mere private or jJrivi/ tokens, were punishable at common law, measure, yyitliout the aid of the 33 Hen. 8, c. 1, (now repealed, )(2') it was well observed, upon this doubt of the learned judge, that possibly the court, in deciding the case, thought that those marks, not having even the semblance of any public authority, but being merely the private marks of the dealer, did, in effect, resolve themselves into no more than the dealer's own affirmation that the vessels contained the quantity for which they were marked. (r)-j- Channel's Where an indictment charged the defendant, for that he, keeping a *'^n"er ^ common grist-mill, and being employed by one Bare to grind three charged bushels of whcat, did, with force and arms, unlawfully take and detain with de- forty-two pounds weight of wheat, judgment was given for the defend- corn, held ant upon a demurrer, there being no actual price laid, nor any charge of matter of a taking as for unreasonable toll, and itbeinga matter of aprivate nature, ture\()tiu-fo^ which an action would lie.(s) dictablo. The following case has been considered to have clearly established Whoatly's the true boundary between those frauds that are, and those that are not SeUina indictable at common law.(<) The defendent, a brewer, was charged by sixteen an indictment at common law, for that he, intending to deceive and de- gallons of^ fraud one Eichard Webb of his money, falsely, fraudulently, and de- instead of ceitfully sold and delivered to him sixteen gallons of amber, for and as eighteen, eighteen gallons of the same liquor, and received fifteen shillings, as for be only an eighteen gallons, knowing there was only sixteen gallons. And this unfair was holdcn clearly not to be an indictable offence, but only a civil in- an'dinfpo- i^U) ^^^ which an action lay to *recover damages. Lord Mansfield, C. sition on an J., said, " It amounts only to an unfair dealing, and an imposition on individual, ^^^^ particular man, by which he could not have suffered but from his and not an '^ . "^ .... . - . indictable own carelessness, in not measuring the liquor when he received it, offence. whereas fraud, to be the object of criminal prosecution, must be of that ■^"5 kind which, in its nature, is calculated to defraud numbers, as false weights or measures, false tokens, or where there is a conspiracy. "(it) The doctrine that an indictment for a cheat at common law cannot be maintained upon a mere false affirmation, has been subsequently recog- nized. (x) llaynes's And in a ease of recent occurrence, the doctrine of a transaction in case. The|.j^g nature of an unfair dealing, and imposition upon any particular in- a transac- dividual, not being an indictable offence at common law, was still fur- tionin the ther established. The indictment, in substance, charged the defendant, unfair ^ miller, with receiving good barley to grind at his mill, and delivering dealing, a mixture of oat and barley meal, different from the produce of the 3i°jQ^°||^°Jjj barley, and which was musty and unwholesome; and the defendant a particular having been found guilty, it was assigned for error, amongst other things, individual, ^^^^^ ^^ indictable offence was charged against him. As to one of the (g) 2 East, P. C. c. 18, s. 5, p. 833, 834. (r) 2 East, P. C. c. 18, s. 3, p. 820. (s) Channers cast, 2 Str. 793, 2 East, P. C. c. 18, s. 2, 818. And see Rex v. Havnes, post, p. 285. fjl) By Lord Kenyon, C. J., in Lara's case, 6 T. R. 569. (m) Whetly's case, 2 Burr. 1125. 1 Black. Rep. 273. 2 East, P. C. c. 18, s. 2, 818. And see ante, 280, et seq. (x) By Lord Keynon, C. J., in Rex v. Gibbs, 1 East, R. 185. f [Fraud to be indictable must be such as affects the public. When charged to have been effected by means of a false token, the token must be such as indicates a general intent to fraud ; a mere privy token or counterfeit letters in other men's names seem not to come M-ithin the meaning of false token as used at common law. People v. Slone, 9 Wend. 182.] CHAP. XXXI. § I.] OF CHEATS AND FRAUDS AT COMMON LAW. 285 grounds upon which it was contended that the ofiFencc charged was not not beinsr iiulictabh", namely, that the statement should have been, that the dc- "[ conuVo,, fendant delivered the barley " to be eaten as fur food," and that it wasl:iw, fu-- ''nol fit to be eaten by nian;"(y) Lord Ellcnborou^'h, C. J., said, tl^at [||,^[^j'*!||''' if the indictment had alleged that the defendant delivered the barley this ca^o as an article for the food of man, it might possibly have been sustained, ^^^^^ » but that he could not say that its being musty and unwholesome, nc-charfce.i cessarily, and rx vi (cnnini, imported that it was for the food of man, ^^'•^'"ccpiv- and it was not stated that it was to be used for the sustcnlation of man, b"fioy"to only that it was a mixture of oat and barley-meal. As to the other {,'i"i'"l at point, that this was not an indictable ofToncc, because it respected a jjj.'jj"""^"'' matter transacted in the course of trade, and where no tokens were ex- meal in lu- hibited by which the party acquired any greater degree of credit; his'"^" *^'*^'""' lordship said that, if the case had been that this miller was owner of aihoprodm-n soke mill, to which the inhabitants of the vicinage were bound to resort, "f '••'o '"»>■- in order to get their corn ground, and that the miller, abusing the con- „\„sty, Ac. lidence of this his situation, had made it a colour for practising a fraud, "'"l i' "»« this might have presented a different aspect, but, as it then stood, it j'^jj^^^"" seemed to be no more than the case of a common tradesman who wasdictabic. guilty of a fraud in a matter of trade or dealing, such as was adverted to in Rex v. Whcatly, and the other cases, as not being indictable. (.~)t Again, in a still more recent case, where the indictment against the Pywcll's defendants was for a conspiracy to cheat and defraud the prosecutor by ^"^,^.' 11 1- 1111 Ti 1 bulling an selling him an unsound horse; and the case did not *upon the evidence, unsoiux) assume the shape of a conspiracy; Lord Ellenborough, C. J., said, that^"'T•' ",",' if such a transaction were to be considered an indictable ofTcnce, then ^qo,- instead of all the actions which had been brought on warranties, the de- " fcndaiits ought to have been indicted as cheats; and that no indictment in a case like this could be maintained, without evidence of concert be- tween the parties to effectuate a fraud. And the defendants were, ac- cordingly, acquitted. («) These cases seem sufficient to support the definition above rdoptcd,(t) and to show that the cheat or fraud must be effected by some deceitful and illegal practice or token, trhich ajjcctt^, or mai/ ojfcct (he jvh/ic, in order to be indictable at common law. And it seems also to result from these cases that a cheat or fraud, in order to be punishable by the com- mon law, must be such against which common prudence could not have guarded. ((•) Indeed it can hardly be supposed that a cheat will much affect the public which is open to the detection of any man of common prudence. With respect to the indictment for a cheat or fraud at common law, indictni : • it may be briefly observed, that where the transaction has been efrccicd (y) Sec Trccve's case, anlc, 2lG. (z) Kex i'. llayncs, 4 M. & S. 214. Qu. tlicrcforc the case of Rex v. Wood, 1 Scss. Ca«. 217, where the defendant beinfr a miller, and indicted for eharpinp; corn delivered to him to be ground, and Riving bad corn instead of it ; a motion was made to <|uash the indictment, because the transaction was only a private cheat, and not of a public nature ; but il wa.^ an-iwered that, being a cheat in the way of trade, it concerned the jiublic ; and the court Mere unanimou.'' not to (piash it. And see the observations as to the authorit}' of cases of this kind, in which the court refused to quash the indictment, (nite, p. '28;!, note (f). (a) Rex J'. Pywcll and others, 1 Stark. R. 402. (b) Ante, p. 282. (c) 1 Hawk. P. C. c. 71, s. 1, 2. Rex v. Wheatly, 2 Rnrr. 1125, ante, p. 284. Rr Fielding, arguendo in the case of Rex v. Young and others, 3 T. R. 99, assented to by Rullcr, J., ib. 104, but see ante, p. 289. f {See GommoQwealth v. James, 1 Pick. 375.} Vol. II.— 19 286 OF CHEATS, ETC., BY FALSE PRETENCES. [bOOK IV. by false tokens, and the offence is so charged, it is necessary to specify and set forth what the tokens were ', and it is not sufficient to allege generally that the cheat was effected by certain false tokens or false pre- tences. (cZ) But it does not seem to bo necessary to describe them more particularly than they were shown or described to the party at the time, and in consequence of which he was imposed upon ; and it is also said not to be necessary to make any express allegation that the facts set forth show a false token. (^') An objection appears to have been made to one nf the counts of an indictment for a cheat at common law, that it charged the false pretence to have been made to one person, and the deceit to have been practised on a different person. (/) Punisli- The punishment of this offence at common law is, as in other cases ™*°*' of misdemeanor, by fine, imprisonment, or further by infamous corporal pain, in aggravated cases. (y) SECT. II. 0/ Cheats and Frauds hy means of False Pretences, Within the statute 7 t& 8 Geo. 4, c. 92, s. 53. *28T The 7 & 8 Geo. 4, c, 29, s. 53, reciting that a failure of justice fre- 7 & 8 Geo. quently arose from the subtle distinction between larceny and fraud, 63.*^ Ob-^' ^'^''^ remedy thereof, enacts " that if any person shall by any *false pre- taining tence obtain from any other person any chattel, money, or valuable se- h°Yue' curity, with intent to cheat or defraud any person of the same, every pretences, a such offender shall be guilty of a misdemeanor, and, being convicted misdemea- thereof, shall be liable, at the discretion of the court, to be transported No acquit- beyond the seas for the term of seven years, or to such other punish- tal on the jjjent, by fine or imprisonment, or by both, as the court shall award : the case provided always, that if upon the trial of any person indicted for such proved a- misdemeanor it shall be proved that he obtained the property in ques- larcenv ^ ^^^^ ^^ ^^J ^^^^ manner as to amount in law to larceny, he shall not by reason thereof be entitled to be acquitted of such misdemeanor ; and no such indictment shall be removable by certiorari ;[a^ and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for larceny upon the same facts." [l]f (d) 2 East, P. C. c. 18, s. 13, p. 837. (e) 2 East, P. C. c. 18, s. 13, p. 838. (/) Lara's case, 2 Leach, 647, but see Eex v. Douglas, 1 Campb. 212 post, p. 301, where the pretence was made to a servant, but the money of the mistress obtained. (ff) 2 Hawk. P. C. c. 72, s. 3. 2 East, P. C. c. 18, s. 13, p. 838. (a) These words prevent the issuing of a certiorari in every case of indictment for obtain- ing goods by false pretences. Reg. v. Butcher, 9 Dowl. P. R. 135, Patteson, J. [1] {Obtaining credit in account from the party's own banker, by drawing a bill on a person on whom the party has no right to draw, and which has no chance of being paid, is not within this statute, though the banker pays money for him, in consequence thereof, to an extent he woukl not otherwise have done. Ry. & Mood. C. C. 224, Rex v. Wavell. An unstamped order on a banker, (which ought by law to be stamped,) is not a " valuable security" within this statute, because it would be a breach of the law in the banker to pay it. Ry. & Mood. C. C. 170, Rex v. Yates. Car. Crim. L. 333, S. C.} [See People v. Stone, 9 Wend. 182.] f [In an indictment under the statute for obtaining by false pretences, the signature of a person to a written instrument, it is not necessary to charge loss or prejudice to have been sustained by the prosecutor ; the offence is complete when the signature is obtained by false CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 287 The enactments of the 7 Geo. 4, c. 64, as to the statement of the Siutenier.t indictment of the ownership of property in partifuhir instances of part-^'j^j" ^^^ ' tiors, counties, parishes, turnpike trustees, &c., have been stated iu the property, preceding chapter upon larceny. (/') Some of the cases decided upon the repealed act, 30 Geo. 2, c. 24, f^ases upon mav assist in the construction of the recent statute. 'K" repoal- Tliat act, after reciting that evil-disposed persons liad, hy various 30 Goo. 2, subtle stratagems, &c., fraudulently obtained divers sums of money, 2'^- goods, &('., to the great injury of industrious families, and to the mani- fest prejudice of trade and credit, enacted " that all persons who, know- ingly and designedly, by false pretence or pretences should obtain from any person or persons, money, goods, wares or merchandises, with in- tent to cheat or defraud any person or persons of the same, should be deemed offenders against law and the public peace," and should be pun- ished, &c., as therein mentioned. In an indictment framed on this repealed statute, the first count Rex v. charged that the four defendants, Young, Randal, Mullins, and Osmer, o^'i'""^^' fraudulently intending to obtain the money of the king's subjects, by Indictincnt, false colours and pretences, unlawfully and knowingly, &c., did f^l^<2^y '."jiiej act pretend to one Thomas, that Young had made a bet of five hundred;;!) (jeo. 2. guineas on each side, with a colonel in the army, then at Bath, that ^; 24; f'"" one Wm. Lewis would, on the next day, run on the high road, leading ,n„„ey uu- from (rloucester to Bristol, ten miles in length, within one hour ; and''^'>"tho tliat Young and Mullins did go two hundred guineas each in the bet, ^^^^gg^jf' and Randall did go the other hundred guineas : and that, under colour sharing a and pretence of such bet, they obtained from Thomas, as a part of such |^,"[*^°j[ij {,, pretended bet, twenty guin(>as of the five hundred guineas; by which have been said false pretences the defendants unlawfully, kc, obtained from the''"^"'"*' ^""^ (6) Ante^ p. 101, et seq. The property itself may he descrihed as in hireeny. See ante, p. 107, el seq. As to hard labour and solitary couliuemeut, see the 7 & 8 Geo. 4, c. 29, s. 4. and the 1 Vict. c. 90, s. 5 ante, p. 128. pretences with intent to cheat or defraud ; and it is not essential that actual loss or injury sliouhl he sustained. People v. Genuncf, 11 Wend. 18. The false assertion or possession of money on the credit whereof goods were olitained i? a false pretence. Common weal I /i v. Biirdir/c, 2 Barr, 163. In an indictment for obtaining the signature of a person to a written instrument by false jiretenees, it need only appear that the instrument on its i^ce is one calculated to prejudice the party who has signed it, though on the fact stated in the indictment it would be void for fraud. People v. Crisi^ie, 4 Denio, 525. An indictment alleging that the defendants falsely pretended to a third person that a drove of sheep which llicy offered to sell him were free from disease and foot ail, and that a certain lameness apparent in .«ome of tliem was owing to an accidental injury, by means of wliich they obtained a certain sum of money, on the sale of said sheep to such person, with proper qualifying words, and an averment negativing the facts represented, is good under the statute against cheating by false pretences. The People v. Crimie, 4 Denio, 525. An indictment on the Revised Statutes of Massachusetts, for obtaining money, goods or other property by any false pretence with intent to defraud, must set forth all the material facts and circumstances which the ])rosecutor would be bound to prove in order to procure a conviction. An indictment on that section is insuflicient, if it merely alleges that the de- fendant, intending to cheat and defraud A. of his money and property, designedly and knowingly did falsely pretend to A. that a watch whidi the defendant had was a gohl watch, by means whereof the defendant did designedly and knowingly obtain from A. thirty-five dollars, with intent to cheat and defraud him of "the same, — whereas in truth the said watch was not, and the defendant knew that it was not a gohl watch. When money or other prperty is obtained by a sale or exchange of property, eflerted hy means of false pretences, such sale or exchange ought to be set forth in the indictment, and that the false pretences should be alleged to have been made with a viow to effect such a sale or exchange, and that by reason thereof the party was induced to buy or exchange, as the case may be. Commonwealth v. Strain, 10 Metcelf, 521.] 287 OF CHEATS, ETC., BY FALSE PKETENCES. [BOOK IV. with an- said Thomas the said twenty guineas, with intent to cheat and defraud other; iiiul j- thereof; whereas, in truth, no such bet had been made, &c., which was ' ' da tit to be de- against the form of the statute, &c. A second count stated the bet to ojdod the 1^.^^,^, j^^,^^ imide between Youue; and Osmer. The defendants having QAvr (in,V ^ *^ been convicted, it was objected upon error that the supposed false pre- *288 tcnces shown in the first and second counts were neither '''contrary to the 33 lien. 8, c. 1, (now repealed,) or the 30 Geo. 2, c. 24, (now re- pealed,) or any other statute. And it was argued that the transaction itself was not the subject matter of a criminal prosecution, for that it did not affect the public j and that it was one against which common prudence might have guarded : for, as it was the representation of a future transaction, the party had an opportunity of inquiring into the truth of it, and that therefore it was his own fault if he were deceived : but the objection was overruled. Lord Keuyon, C. J., said, "Undoubt- edly this indictment, being founded on the statute of 30 Geo. 2, c. 34, is different from a common law indictment. When it passed it was consid- ered to extend to every case where a party had obtained money by falsely representing himself to be in a situation in which' he was not, or any oc- currence that had not happened, to which persons of ordinary caution might give credit. The statute of 33 Hen. 8, c. 1, requires a false seal or token, to be used in order to bring the person imposed upon into the confi- dence of the other ; but that being found to be insuflScient, the statute 30 Geo. 2, c. 24, introduced another offence, describing it in terms extremely general. It seems difiicult to draw the line, and to say to what cases this statute shall extend ; and therefore we must sec whether each par- ticular case, as it arises, comes within it." His lordship then adverted to the facts of the case, before the court; and after saying that the de- fendants, morally speaking, had been guilty of an offence, proceeded thus : " I admit that there are certain irregularities which are not the subject of criminal law. But when the criminal law happens to be auxiliary to the law of morality, I do not feel any inclination to explain it away. Now this offence is within the words of the act ; for the de- fendants have, by false jKctences, fraudulently contrived to obtain money from the prosecutor ; and I see no reason why it should not be held to be within the meaning of the statute." Ashurst, J., said, in giving his opinion, <'The statute 30 Geo. 2, c. 24, created an offence which did not exist before, and I think it includes the present. The legislature saw that all men were not equally prudent, and this statute was passed to protect the weaker part of mankind. (c) The words of it are very general. 'All persons who knowingly by false pretences shall obtain from any person money, goods, &c., with intent to cheat or defraud, &c.,' and we have no power to restrain their operation." And Buller, J., after observing upon the 33 Hen. 8, says, " The legislature thought that the former statute was too limited; and therefore the 30 Geo. 2, c. 24, was passed: which enacts, "That all persons who shall obtain money from others hj fahe pretences, with intent to cheat or defraud such persons, shall he deemed offenders against (he j^ullic peace.' The statute, there- fore, clearly extends to cases which were not the subject of an indict- ment at common law. The ingredients of this offence are, the obtain- ing money by false pretences, and with an intent to defraud. Barely asking another for a sum of money is not sufficient : but some pretence must be used, and that pretence false; and the intent is necessary to (c) See the obserrations of Lord Dcnmun, C. J., in Reg. v. ^Vickham, post, p. 289. CHAP. XXXI. § II.] OP CHEATS, ETC., BY FALSE PRETENCES. 288 constitute the crime. If the intent be made out, ami the false pretence used in order to effect it, it brings the case within this statute. "(f/) *It was argued in this case, that even the generality of the term *289 "false pretences," in the 30 Geo. 2, c. 24, did not extend the law to Question cases against which common caution might guard : but Ashurst, J.,said, ^,^ repeal" as wc have seen, that as all men were not equally prudent, this statute id act, 30 was passed to protect the weaker part of mankind ; still, however, it has 9'f",.i,^,he, boon observed, that it might have been a question whotlier the statute it extended extended to every false pretence, either absurd or irrational upon the '*'*' '"^^ *** face of it, or such as the party had, at the very time, the means of de-n^'iiinst tecting at hand ; or whether the words, which were general, should have wli'ch com- becn construed co-extensively with the cheat actually effected by means ""n" f"*" of the false pretence used. And it was suggested, that these might m'sl't perhaps, be matters proper for the consideration of the jury, with thc^'"'^'^ advice of the court. (^)"j" It should seem that a pretence to come within the meaning of the new It seems statute need not be such an artificial device as will impose upon a man *,*'® new act - ,. . XI 1 • -1 • 1 does extend of ordinary caution. In a late case where it was said in argument that to such an opinion had always prevailed that the fraud to constitute an indicia- '''^^^^• ble offence, must be such an artificial device as would impose upon a man of ordinary caution; Lord Denman, C. J., said, "I never could Bce why that should be. Suppose a man has just enough to impose upon a very simple person, and defraud him ; how is it to be determined whether the degree of fraud is such as shall amount to a misdemeanor ? ^Yho is to give the measure ?" It was answered that the law prescribed it. Rcgina v. Jones(y') was then cited ; in that case the defendant was indicted for having obtained money by pretending to be sent for 20/. for the use of J. S., and Holt, C. J., said, " It is no crime unless he came with false tokens. Shall we indict a man for making a fool of another? Let him bring his action." Upon which Lord Denman, C. J., added, " Why is it the prosecutor's folly more than the defendant's fraud ? This point is sometimes put as if a lie were something laudable. There are indeed cases, where the pretence is so very foolish that it is difficult to say that an imposition is practised; but still who is to give the mea- Buro?"(^) (d) Rex I'. Young and others, 1789. 3 T. R. 98. (e) 2 East, P. C. c. 18, s. 8, p. 828. (/) 2 Lord Raym. 1013. (ff) Reg. V. Wickbam,* 10 Ad. & E. 34. It is submitted that the jury arc the proper per- .sons to give the measure, and that it is for them to say whether or not the pretence used were the means of obtaining the jjropcrty. Any rule foiimled ufxin tlie pretence being such as wouUl impose upon persons of ordinary caution woubl leave iUl sucli as were unfortu- nately gifted with a less degree of caution at the mercy of the fraudulent and designing. And as in robbery it would be absurd to lay down any rule which defined the force necessa- ■j- [A representation, though false, is not within the statute against obtaining property, Ac, by false pretence, unless calculated to mislead persons of ordinary prudence and cau- tion. The Pcojile v. Williatm, 4 Hill, 9. It is essential to constitute the offence of obtaining money, Ac, by false pretences, that the person alleged to have i)een defrauded should have believed the false pretences to be true, and that they should have been such that if true they would naturally operate upon an honest and ordinarily prudent person, and also that such person in parting with his pro- perty was not himself guilty of a crime. Therefore, held on demurrer, that an indictment for obtaining a watch from a person upon the false representation that the defendant was a constable and had a warrant against such a jicrson, issued l)y a justice of the peace for the crime of rape, and that he would settle the same if the person defrauded would give the defendant the watch, could not be sustained. The J'enple v. Stetson, 4 Uarb. Sup. Ct. 151.] » Eng. Com. Law Reps, ixxvii. 29. 289 OF CH-EATS, ETC., BY FALSE PRETENCES. [bOOK IV. Where the defenclaut was indicted for obtaining money by falsely pre- tending on one occasion, to a pawnbroker, that a certain material, which he produced, was '' gold shruff," and, on another occasion, that an article he produced was " ribbon gold ;" and it appeared that gold shruflF and ribbon gold were worth 3^. 18s. an ounce, but the thing which the pri- soner said was gold shruff was worth only 18s. an ounce. Both the arti- cles produced were tried by the pawnbroker with aqua fortis, and stood the test. But some days after the money was obtained, the pawnbroker filed the ribbon gold, and found it was silver gilded over. Adams, Serj., was of opinion, that as the defendant had merely stated an untruth with reference to an article which he produced, and not about a fact which the person imposed upon could not detect at the time, the untrue state- ment did not amount to a false pretence, but was only an untrue asser- tion. He likened it to the case of a tradesman, who sold a waistcoat or coat as of a particular material, when it was of an inferior sort; and asked whether it could be contended that such a man was liable to trans- portation? But be left the facts to the jury, who said they were of opinion that the defendant had passed off the articles, well knowing them to be spurious, and he was found guilty. Adams, Serjt., afterwards mentioned the case to several of the judges, and said they agreed with him that the mere assertion that the article produced was what in fact it was not, was not sufficient to sustain the conviction, and the defendant was fined a shilling and discharged. (^^) But where a count stated that the defendant did falsely pretend that eleven thimbles which he then produced were silver, and of the value of five shillings or more, with intent to cheat and defraud, &c., but did not allege that any money was obtained ; and it appeared that the defend- ant went to a pawnbroker's shop and laid down eleven thimbles on the counter, and asked for five shillings on them; and being asked whether they were silver said they were, but the thimbles were immediately tested and found not to be silver, and nothing advanced upon them. Mirehouse, C. S., told the jury that the pretence must be so false that a man exercising reasonable discretion might still be deceived by it; and the jury having found the prisoner guilty, the facts of the case were mentioned to some of the judges, who were of opinion that in point of law the evidence was amply sufficient to justify the verdict. (M) It is conceived that this ease was rightly decided. And it is suggested that the correct distinction in such cases is, that if by ocular inspection the falsity of the defendant's statement be discoverable, it is a mere false assertion, and not a false pretence ; but if the article to all appearance be such as it is alleged to be, and it requires something to be done to it, either by the application of tests or otherwise, to ascertain whether it be what it is alleged to be, it is a false pretence. C. S. Gr. ry to constitute a robbery with reference to the ordinary stren^h of mankind ; so in false pretences it would be equally absurd to establish a rule with reference to the ordinary ca- pacity of mankind. On the other hand, as in robbery, the correct rule clearly is that any force sufficient to overcome the bodily resistance of the party robbed, constitutes the offence, whether that party be a powerful man or a feeble woman ; so it is submitted that any pre- tence suiRcient to overcome and impose upon the mind of the party to whom it is made, ought to be considered to constitute an offence within this statute ; and that whether it were of such a character or not, ought to be left to the determination of the jury with refe- rence to all the facts of the particular case. C. S. G. [gg) Reg. v. Tabram,* cited I C. & Mars. 251. {hh) Reg. V. Ball,'' 1 C. & Mars. 249. • Eng. Com. Law Reps. xli. 141. b lb. xli. 140. CHAP. XXXI. § II.] OP CHEATS, ETC., BY FALSE PRETENCES. 289 A pretence that the party would do an act which he did not mean to A pretence do (as a pretence that he would pay for goods on delivery,) was holden ,'^'J:^y not to be a false pretence within the repealed statute. The prisoner wuufd do bargained for the carcases of three sheep and some other meat, and the "" "*"' ,. o . . , uol'8 not in- seller having refused to trust him, promised to pay for them on delivery; tunJ to do. but he did not mean to do so, and when *they wore delivered, sent back *290 an evasive letter. The indictment was for obtaining the carcases and meat by falsely pretending he would pay for them on delivtry, whereas he did not, and never meant to do so; and he was convicted j but upon a case reserved, the judges thought tliis was not a pretence within the statute ; that it was merely a promise for future conduct ; and that com- mon caution would prevent any injury from the breach of it; and, there- fore, that the conviction was wrong. (^) So an indictment averring that the prisoner falsely pretended that he Prisoner wovhl tell the prosecutor where his marc and gelding were, is bad. The ["h^t^^e will indictment stated that the marc and gelding of one E. Young had strayed tell where to a place unknown to E. Young, and that the prisoner unlawfully did [.'^^^^'g''*"' falsely pretend to the said E. Young that he would tell him where the horses aro said mare and celdiner were, if he would crive him a sovereign, whereas i^.'^^,^''' ci d J o o z' ^ trivo him 3> in fact the prisoner would not tell the said E. Young where the said gyvoreijju. mare and gelding were, if he would give him a sovereign. It appeared that the prosecutor having lost a mare and gelding, went in search of them to Lincoln, where the prisoner on being introduced to the prose- cutor, said he knew where they were, and would tell him if he would give him a sovereign ; the prosecutor hesitated to give the sovereign, but the prisoner refusing to give the information unless the sovereign was delivered into his hands, the prosecutor reluctantly put two half- sovereigns into his right haml, whicli the prisoner immediately put into his pocket. The prosecutor then required the prisoner to give him the information he had promised, which he refused to do, or to return the money, saying he had no information to give him. The jury having found the prisoner guilty, upon a case reserved upon the question, whether this was a false pretence within the 7 & 8 Geo. 4, c. 29, s. 53, the judges held that the indictment should have stated that the prisoner pretended he knew where the horses were, and that the conviction was wrong. (A) A pretence to a parish officer, as an excuse for not working, that the party had no clothes when he really had, though it induced the officer to give him clothes, was holden not to be obtaining goods by false pre- tences, within the meaning of the repealed statute, 30 Geo. 2. The overseer of the prisoner's parish asked him why he did not work to sup- port his family, which received parish relief; the prisoner said he had no shoes : upon which the overseer gave him a pair ; but the prisoner had at the time two good pairs. Upon a case reserved, the judges thought that this was not within the act, and that the conviction was wrong ; for it was rather a false excuse for not working, than a false pretence to obtain goods.(A Where a count stated that the defendant pretended to A. Crcllin, a single woman, that he was an unmarried man, and having thereby ob- {g) Rex r. Goodhall, Mich. T. 1821, MS. Bayley, J., and Russ. & Ry. 461. (A) Rex V. Dou^lnss, R. k M. C. C. R. 4(52. Sec Rex t-. Parker, _po»<, p. 298, et teg. (i) Rex V. Wakcling, Hil. T. 1823. Russ. & Ry. 504. 290 OF CHEATS, ETC., BY FALSE PRETENCES. [book IV. t.iiucd a promise of marriage from A. CrcUin, that she refused to marry the dcfcmlaut, and that he falsely pretended, at the time of such refu- sal, that ho was an unmarried man, and entitled to bring an action against her for the breach of promise of marriage, by means of which he obtained from her 100?. Whereas in truth he was not an unmar- ried man, and not entitled to maintain an action for the breach of pro- mise of marriage against her. The prisoner was a married man, and A. ( 'rellin stated that she being a single woman, and possessed of consider- able property, the prisoner had paid his addresses to her, and that she liad consented to marry him, she being then ignorant that he was a mar- ried man, and afterwards changed her mind, and intimated as much to the defendant, and that he thereupon threatened her with an action at law for breach of promise of marriage, and he added, that, by means of such proceeding, he could take half of her fortune from her; and that she, believing that he could and would carry his threat into effect, and in order to induce him to refrain from doing so, paid him a sum of money, under a written stipulation, that in consideration of such pay- ment he would forego proceedings at law against the prosecutrix for breach of promise of marriage. That but for the prisoner's threat of bringing an action, she wovild not have paid the money ; and that she was induced by such threat to pay the money; and that, had she known he was a married man she would not have paid the money. The case was left to the jury to say whether the money was, in fact, obtained by the false pretence that the defendant was single, and they found the prisoner guilty; and Lord Denman, C. J., and Maule, J., were both clearly of opinion that there was evidence to go to the jury, that the money was obtained by the false pretence that the prisoner was a single man, and in a condition to intermarry with the prosecutrix ; and Maule, J., was further of opinion, that there was also evidence of the money having been obtained by the false pretence of the defendant, that he was entitled to maintain an action for breach of promise of marriage; and that such latter false pretence was a sufficient false pretence within the statute, (ii) In the case of Young and others, above mentioned, Buller, J., cited the following as a case in point; the defendant. Count Villeneuve, ap- plied to Sir T. Broughton, telling him that he was intrusted by the Duke de Lauzun to take some horses from Ireland to London, and that he had been detained so long by contrary winds that his money was ;=pent; by which representation Sir T. *Broughton was induced to ad- trusted by yance some money to him ; after which it turned out that the prisoner a, loroiffn ./ ^ i nobleman never had been employed by the Duke de Lauzun, and that his whole to take story was a fiction. For this offence he was convicted, and sentenced Ireland to ^'^ hard labour on the Thames, (y)"]" London, It was agreed upon by all the judges, that a case was within the 30 his money ^^0. 2, c. 24, where the credit was created hy means of the false yyre- ■was spent, teiicc ; and they -held that in the following case the prisoner would not {ii) Eeg. V. Copeland,^ 1 C. & Mars. 516. (y)Villeneuve's case, cor. Moreton, C. J., of Chester, and Buller, J., Chester, 17T8. 3 T. R. 104, 105. f [An indictment lies for obtaining goods by false pretences when a party represents himself to be the owner of property which does not belong to him, and thus fraudulently induces the owner to sell the goods to him on credit. The People v. Kendall, 25 Wend. 399.] » Eng. Com. Law Reps. xli. 282. (;<>uut Vil- Icrieuve's case. Money ob- tained by the false pretence of being in- *291 CHAP. XXXI. § II.J OF CHEATS, ETC., BY FALSE PRETENCES. 291 have obtained the credit but for the false account which he delivered. Mitchell's The prosecutors, from whom the prisoner was charged with obtaining ,„|,^;rint^,a. money by false pretences, were clothiers; the prisoner was a shearman, diint in in their service, and employed to superintend the other shearmen, and |^y!;„"u,ac-° to take an account of the persons employed, and of the amount of their tory having wages and earnings ; at the end of each week he was .supplied with ^'^j^^^^'^^P^^^ money to pay the different shearmen, by the clerk of the prosecutors, the numhor who advanced to him such sum as, according to a written account or"*" sl'oarers ,.,,.' ° , ,, ™, euii)loyoa, note delivered to him by the prisoner, was necessary to pay them. llieu„j tjjo prisoner was not authorized to draw from the clerk for money generally amount of on account, but merely fur the sums actuaUi/ earned hi/ the shearmen ; -^^^^ .,^j and the clerk was not authorized to pay him any sums except what he wa-os, and carried in his account or note as the amount of what was due to the ^^^-^'^^^Hj shearmen for the work they had done. The prisoner, on the 9th of week, de- Scptember, 1796, delivered to the prosecutors' clerk a note in siting |^'^|.^j"^°^^° in the following form : <'9th September, 1796, Shearmen, 44/. ll.s. 0'/.," count, by which was the common form in which he made out his account of the ^,hi(h he amount of their week's wages. And in a book in his handwriting, which [..rg^r sum it was his business to keep, (of the men employed, of the work they had tiian was done, and of their earnings,) there were the names of several men who ^^agiioijen hud not been employed, who were entered as having earned difiPcrcnt to be within sums of money, and also false accounts of the work done by those wli0 2'*|j*24. '^°' were employed j so as to make out the sum stated in the note to be due to the shearmen. Upon this evidence the jury found the prisoner guilty ; but sentence was respited in order to take the opinion of the judges, whether this case were within the statute 30 Geo. 2, c. 24, the prisoner's counsel contending that no cases were within the statute but those where the original credit was obtained by means of the false pretence ; and that it did not extend to cases where there was a previous confidence, as he said was the case here. The judges, after some difference of opinion, ultimately all agreed on the principle, that if the false pretence created the credit, the case was within the statute ; and they considered that in this case the defendant would not have obtained the credit, but for the false account which he had delivered in, and, therefore, that he was pro- perly convicted. (A-) In the following case it was contended, that where a party obtained *292 money, by assuming a character which did not belong to him, without ^^'^jf^ makin'j any false deelaratlons or assertions, the repealed *statute of prisoner 30 Geo 2, did not apply. The indictment charged, that the prisoner obtained fraudulently and deceitfully produced and delivered to P]., the wife of ™°,"*^fjjQ John Rayncr, which John llayner was employed in the business of the keeper of a post-office, as deputy postmaster of the town of Nottingham, an order 1^"^^^^^^^^^' for payment of money, commonly called a money order, to wit, for the iug to be pavmeut of the sum of one pound, to one John Storcr ; and that he un- ^'^'^ Person 1 ♦- r / / niciitionccl lawfully, &c., pretended to the said E. llayner, that he was the person in a money named in the same order, by means of which false pretence, he unlaw- "l^l'"!"' fully, &c., obtained from the said E. llayner, the sum of one pound of presented the moneys of the said John Rayner, with intent to cheat and defraud forpny- the said John Rayncr ; averring also, that the pri.soner was not the per- ^^\\'^ not son named in the order, nor the person entitled to receive the money make any {k) Wltchell's ca.sc, East. T. and Trin. T. n08. 2 Ea?t, P. C. c. 18, s. 8, p. 8.30. One of the judges observed, that the prisoner was not to liiivc any sum be thought lit, on account : but only so much as was worked out. 292 OF CHEATS, ETC., BY FALSE PRETENCES. [BOOK IV. fnlso docla- therein mentioned. There was a second count differing from the first ration or i j allesrinG; the money to be John Storer's, and the intent to be to assertion in " V *" t> a , , i . i «• orilor to cheat him. It appeared that the prisoner went to the post-omce at obtain the Nottingham, and inquired of Mrs. llayncr, who transacted the business money. ^^^^^_^ ^^^ ^^^^ husband, if there were any letters directed to " John Story, post-office, Nottingham, to be left till called for." Mrs. Eayner finding amongst the letters one directed for "John Storer, to be left till called for, Nottingham," and supposing it to be the letter for which the pri- soner inquired, delivered it to him. The direction then upon the letter was a re-direction of it from Northampton, to which place it had been originally sent from Nottingham. The prisoner, on receiving it, objected to the payment of two shillings for the postage, saying, " It was too much from Manchester ;" but he paid the money, and went with the letter into the office passage, where he remained a sufficient time to have read it, after which he returned into the office with the money order in question, which had been inclosed in the letter, and offered it to Mrs. Rayner. Mrs. Rayner told him he must write his name on the back of the order before she could pay him the money, upon which he wrote bis real name, John Story, and she paid him with a one pound note. He then told her, that if she would look again she would find another letter for him, from Manchester, which she did, and he paid for it. The order in question (which was signed by Mrs. Rayner in the name of her hus- band), was in the following form : " No. 52. Order given by one Deputy on another. "£1. Post Office, Nottingham, Augt. 2nd, 1804. " At sight, pay John Storer, according to my letter of advice of the number and date, the sum of one pound, and place the same to the ac- count of the money order office. " J. Rayner." " To the Post Master of Northampton. " This order must be signed by the person to whom it is made pay- able, and sent up with the quarterly account, as a voucher for the payment." The terms of the letter clearly explained, that the order could not have been intended for the prisoner : and it was proved, that when he *293 ^^^ ^^'^^ apprehended, he denied having received the *money, or having ever seen Mrs. Rayner : but he afterwards assigned a want of money as a reason for his conduct. In the conversation with Mrs. Rayner, she never asked him if he was the person for whom the letter and order were intended ; nor did he say that he was so. The prisoner's counsel contended, that as the order was given to the prisoner by Mrs. Rayner herself, and the prisoner had merely presented it to her for payment, without making any untrue declaration or assertion, the case was not within the statute. The learned judge left it to the jury to find against the prisoner, if they were satisfied that by his conduct he had fraudu- lently assumed a character which did not belong to him, although he had made no false assertions : and the jury found him guilty. But the sen- tence was respited, in order to take the opinion of the judges, as well upon the objection made, as upon a further doubt, whether the signature of the prisoner's name, under the circumstances, did not amount to a forgery of a receipt for money, in which the lesser offence was merged. The ut- CHAP. XXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 293 All the judges were of opinion that this did not appear to be a forgery, the prisoner having signed his own name, which was not the same name as that of the person to whom the note was payable : and upon the other objection, they held that the prisoner was properly convicted of obtaining the money by false pretence, because by presenting the order for payment, and signing at the post-office, he represented himself to Mrs. II. as the person named in the note.(^) There might be a sufficient false pretence within the same repealed Trooth's statute 30 Geo. 2, by the acts and conduct of the party, without any f "J^'^f verbal representations of a false and fraudulent nature. The count in tiTin^ a the indictment upon that statute stated, that the prisoner, intending to '""""'^crfoit * . i ' o nolo as a cheat and defraud John Beebee, of his moneys, goods, and merchan- g.nuino dizes, on, &c., did falsely, &e., utter, publish, offiir, and tender to the said ""t*^' ^^^^ tobu tiint&- J. B. a false, forged, and counterfeit paper, as and for a true papiT, and niomit to a did then and there falsely, knowingly, and designedly, fraudulently and represonta- wickedly, pretend to the said J. B. that the said false, &c., paper was ,^.^" j^** a true paper, and signed by one Wm. Sparrow, which paper was as follows : "Wolverhampton, 27 Feb. 1807. " I promise to pay the bearer on demand the sum of ten shillings and sixpence. "Wm. Sparrow." with intention the moneys, goods, &c., of the said J. B. to obtain, well knowing such paper to be forged and counterfeit; by means of which false pretences, he did obtain from the said J. B. a sum of money, to wit, nine shillings and tenpence, against the form of the statute, Si.c. The third count stated that the prisoner, contriving and intending to cheat and defraud the said J. B. of his moneys, goods, &c., on, &c., did fraudulently and wickedly utter, publish, ofiFer, and tender to the said J. B., a false, forged, and counterfeit paper, as and for a true paper, and which he then and there did pretend and represent to the said J. B. to be a true paper, subscribed, &c., (and setting forth the paper) with *intention to cheat and defraud the said J. B. and the moneys, goods, *294 &c., of the said J. B. fraudulently to obtain, well knowing the said paper to be forged, &c., by means of which last mentioned false pretences, he did then and there fraudulently obtain from the said J. B. a sum of money, to wit, nine shillings and tenpence, of the money of the said J. B. It appeared by the evidence of John Bebee, that the prisoner came to his shop at Bilston, on a Saturday night, and asked for a loaf; that he served him with one for fivepence; that the prisoner then asked for some tobacco, and the witness served him with an ounce for threepence, upon which the prisoner threw down a note for ten shillings and sixpence. The witness said he had no change, but in copper, which the prisoner Eaid would do ; and the witness then gave him nine shillings and ten- pence, in copper, which he took, together with the loaf and tobacco, and went away. The note was that which was set forth in the indict- ment, and was a forged note : and it was proved that the prisoner, in the course of the same evening and the next morning, put off several other notes of the same kind and amount, and all forged. Sparrow was a person of good credit ; and his notes under twenty shillings were generally cir- culated in that neighbourhood, as it was found impracticable to pay in (/) Rex V. Story, East. T. 1805, MS. and Rusg. & Ry. 81. 294 OP CHEATS, ETC., BY FALSE PRETENCES. [book IV. cash, or larger notes, the wages of the numerous day-labourers engaged in tlic iron manufactories. But by the 15 Geo. 3, c. 51, s. 1, promissory notes, &c., negotiable for any sum less than twenty shillings, were de- clared absolutely void and of no effect ; and the second section of that act declared, that if any person should publish or utter such notes, &c., for a less sura than twenty shillings, or should negotiate the same, he should forfeit any sum not cxcjcding twenty pounds, nor less than five ])nunds ; the third section gave directions as to the form of conviction. The counsel for the prisoner objected, first, that this was not a case within the 30 Geo. 2, c. 24, the general expression of that statute being confined to cases of false suggestions of fact, as in Rex v. Young ;(m) to cases where the party falsely represents himself to be in a situation which he is not, as a servant of another, or as having his order or authority, or produces a false account of disbursements, on the face of which the party would be entitled to be reimbursed, as in Witchell's case;('rt) and to those cases where credit is acquired, and the moneys, &e., are obtained by the false pretence. And it was urged, that in this case the credit was given to the note, and to no representation or pretence of the pri- soner himself; that the fraud consisted in the fabrication of the instru- ment, not in any representation made by the prisoner. But the learned judge who tried the prisoner thought that the uttering it as a genuine note was tantamount to a representation that it was so. An objection was also taken, as to this being a cheat at common law, upon the ground that as a note of this sort was void, and prohibited by law, it was no offence to forge it or to obtain money upon it when forged, as the party taking it ought to be upon his guard. The case was, however, left to the jury, with a direction that the evidence, if true, sustained both or one of the latter counts of the indictment; and the jury found the prisoner guilty on both these *counts ; and the learned judge respited the sentence, for the purpose of submitting the points to the consideration of the twelve judges. All the judges, (except Rooke, J.) being present, the majority of them thought that the conviction was right, and that it was a false pretence, although the note, upon the face of it, would have been good for nothing in point of law, if it had not been false. Law- rence, J., was of a different opinion, and thought that the shop-keeper was not cheated if he parted with his goods for a piece of paper, which he must be presumed in law to know was worth nothing if true.(o) Flint's The prisoner was tried on an indictment, which charged that he did d^^tment*' ^'^l^ely, fraudulently and deceitfully deliver to one Joseph Blood, certain for deliver- papers, purporting to be promissory notes of bankers at Oundle, as and ingmpay-£y^ goods and available notes, (one of which was set out;) and that horse, ccr- Blood believing them to be good and available, delivered to the prisoner tain pro- ^ gelding, of the price of 12^. his property; whereas the notes were not notes !is goo*i ^°*^ available, but of no value, as the prisoner then well knew; and for and SO the prisoner, by colour of the said papers, unlawfully, &c. did available obtain, and get into his possession from Blood, the said gelding, with promissory intent to chcat him of the same, and of his said gelding did cheat and '^h**^h til dpfi'''ud him, &c. It appeared that the prisoner, on the 4th of June, prisoner 1821, bought of the prosecutor, atHugeley fair, the gelding in question, knew to be fgj, jjjg price of 13/., and tendered in payment notes to that amount on *295 (m) Ante, p. 288. (n) Ante, p. 291. (o) Freeth's case, 1807, MS. and Russ. & Ry. i: CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 295 the Oundle bank. On the prosecutor's objecting to accept these notes, ""t good the prisoner assured him they were good notes, and upon this assurance "j"[yg *rj.-[j^ the prosecutor parted with tlie gelding. It further a{)pc;ired that these notes pur- notes had never been presented by the prosecutor at Oundle, or at Sir f,"'"''''^ '"'":. ' 11 '■'"' notes ol James Esdaile's, in London, where tliey were made payable. A wit- a Luuntrj ness stated, that he recollected Hickett's bank at Oundle, that he knew ''■!'.' '^j- nothing but what be saw in the papers, and heard from people who hadfiupposed to bills there. The notes appeared to have been exhibited under a com- '' '^<' f!''!"'- mission of bankrupt against the Oundle bank; the words importing the ,^''„Jiey"m^ memorandum of exhibit had been attempted to be obliterated; but the it was no- uames of the commissioners remained on each of them. The jury found ^*'*''"'^^,*" the prisoner guilty; and said, they were of opinion that when he bar- iiotos wero cained for, and obtained the horse, he well knew that the notes were of'""'' ""'^ "' 111- 1 • • • 1 1 /• 1 • "^o value. no value, and that it was his intention to cheat the prosecutor or his horse. But the learned judge respited the judgment, and submitted the case to the consideration of the judges, who held the conviction wrong; being unanimously of opinion that the evidence was defective, in not Bulheiently proving that the notes were bad. No opinion was given whether this would have been an indictable fraud, if the evidence had been sufficient. (p) So where an indictment stated that the prisoner unlawfully pretended Not suffi- that a promissory natc of Coleman, Smith, and jMorris, for the payment '^^"^"' to of 1/. as copartners and bankers trading under the firm of Coleman, ^„,(, „„(_ ^f Smith, and Morris, was a good and available note, whereas it was not thico part- a goitd and available note, &c., and it appeared that the prisoner had "^[jViJavo been told that the bank fnnn which the note issued had stopped pay- lailcd. inent; and the banking house was shut up, and Coleman *and Morris *296 had become bankrupts, but Smith had nd become bankrupt: and it was objected that as one of the partners had not become bankrupt, the note remained an available note as it respected him : and non constat, that if presented to him it would not have becu'paid. Gaselee, J., said, « On this evidence the prisoner must be acquitted ; because, as it :ip- pears that the note may ultimately be paid, 1 cannot say that the pris- oner was guilty of a fraud in passing it away."(f^) So where on an in- dictment for obtaining a bull by falsely pretending that a promissory in.qufficiop.t, note of Vincent and Co. was a good note, it appeared that the prisoner <;^'''J«^"Cfi ^r uttered the note to the prosecutor at Bracknell fair, in payment for his|^^.in"o. bull, and in answer to his iiKjuiry whether the note was good, said it valuelcs.,. was a very good one : and when asked wlure he lived he gave a false address. It was also proved that the bank of Vincent and Co. had ceased business above twenty years ago, and one of their then clerks swore that the note uttered by the prisoner had been regularly cancelled and withdrawn from circulation, by the makers having drawn a largo cross across the face of it; and the note was old and discoloured, of the date of 181G, and a large hole through the middle had taken away the miildle part of the cross, leaving however the ends of it quite distinct. The proceedings in bankruptcy against Vincent and Co. were not pro- duced. Coleridge, J., held that there was no evidence to go to the jury that the prisoner knew the note to be cancelled and unavailable at the (p) Rc.\ V. Flint, DcccmVjcr, 1821. Russ. & R}'. 4G0. (q) Rex V. Spcnccr,» 3 C. & P. 420. » Eng. Com. Law Reps. xiv. 37G. 296 OF CHEATS, ETC., BY FALSE PRETENCES. [bOOK IV. time he uttered it, so as to coustitute a false pretence withia the sta- tute.(r)f *297 *Iii a case where the defendant was charged in an indictment that Airoy's being a common carrier, had received goods to carry and deliver at a Wh* oa certain place; and that afterwards contriving and intending to cheat carrier pro- the consignor of his money, he pretended to him that he had carried tended to a .j^^^j delivered the eoods to the consi";nee, and that the consignee had consignor . • • / i ■ ■, ■ . . ,y ^ ^^ f ^ of goods, given to him (the said earner) a receipt expressing the delivery ot the that ho had goods ; but that he had lost or mislaid the receipt ; and then demanded them to the sixteen shillings for the carriage of the goods, and by means of such consignee, false pretences, (which were expressly stated to be false,) obtained the by obtained ^^°^ ^^ sixtccn shillings from the consignor, it was holden that the money for offence was sufficiently brought within the words and meaning of the the car- statute. fs) So where the defendant in the assumed character of a por- nage, it „ ^ . -, ,. ^ r -i ■ ^ was holdon ter from an inn, delivered a parcel as from the country, with a printed within the ticket, with Writing charging carriage and porterage, and received the c. 24. ' money charged ; and the parcel turned out to be a mock parcel, worth nothing ; and part of the false pretences charged in the indictment was taken from the porter's ticket; and it was objected that the defendant (r) Reg. V. Clark, Dick. Q. S. by Talf. 315. The first count stated that the prisoner did deliver to one J. F. N. a certain paper writing, partly written and partly printed, purporting to be a promissory note, made by one 0. V., for certain persons therein described, as using the names, style, and firm of Vincent, Baily, and Vincent, for the payment by the makers thereof to A. G., or bearer, on demand, of five pounds, at the Hon. B. D. &c., bankers, Lon- don, or on demand in Newbury, value received, as and for a good and available promissory note of the said makers thereof, and the said prisoner then and there unlawfully and falsely did pretend to the said J. F. N. that the said paper writing was a good and available pro- missory note of the said persons so using the names, style, and firm of the said V. B. and V. : by means of which said false pretence the said prisoner did then and there unlawfully obtain from the said J. F. N. a bull, the property of the said J. F. N., with intent then and there to cheat and defraud him, the said J. F. N., of the same: whereas in truth and in fact at the time, the said prisoner so delivered the said paper writing, and made the said false pretence as aforesaid, the said paper writing was not a good and available promissory note of the said persons using the names, style, and firm of V. B. and V., but on the contrary thereof, at that time was and from thence hitherto hath been and still is a cancelled, bad, and unavailable promissory note of the said V. B. and V., and of no value, as he the said prisoner then and there well knew." The second count was like the first, except in omitting the maker's names, and stating them to be " certain persons therein more particularly de- scribed as makers thereof, for the payment by the makers thereof," &c. The third count was for a cheat at common law, and charged the prisoner with uttering and delivering to the prosecutor a certain other paper writing (setting it out as in the first count), as and for a good and available promissory note, the payment of which to the holder or holders thereof, the said persons so therein particularly described as the makers thereof were there and at that time liable, with intent then and there to cheat and defraud the said prosecutor, and did then and there and thereby cheat the said prosecutor to the amount of the said sum of 5L ; said prisoner then and there well knowing that the said last-mentioned paper writing was there, and at that time a bad, cancelled, and unavailable promissory note, to the payment of which to the bolder or holders thereof, the said persons so therein particularly described as the makers thereof, were not there and at that time liable, against the peace, &c. The next case tried was Reg. v. Mesheck Ferris, on a similar indictment. As the evidence closely resembled that in the last case, the counts for the false pretences were abandoned, and the opinion of the court was taken whether the facts did not constitute a cheat at common law as laid in the last count ; and the third count in Rex v. Freeth, to which no objection was made at the trial or before the judges, was mentioned. Coleridge, J., was of opinion that the facts did not constitute an indictable cheat, and the prisoner was acquitted. (s) Rex I'. Airey, 2 East. R. 30. f [On the trial of a person indicted for cheating by false pretences, by representing that a bill of an insolvent bank was worth its nominal value, it is competent to show the depreci- ated value of the bill in the market connected with evidence that the bank has refused to pay, and it is not necessary to prove that the bank is insolvent. Commonwealth v. Stone, 4 Metcalf, 43.] CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 297 had not uttered these words ; Lord Ellenborough, C. J., said, " I take tlie dcfcudant to have uttered every word contaiued in the ticket which he brought with the parcel. "(<) So if a person go to a shop dressed in Assuming the costume of a particuhir class of persons for the purpose of fraudu- ^ "'"ys^ °' Icntly obtaining goods, this is a pretending that he is a person of such class for class, although he makes use of no words. The indictment charged ^•'y"'"}^^''*' that the prisoner falsely pretended that he was an undergraduate of the I'uiversity of Oxford and a commoner of Magdalen College, and it ap- peared that the prisoner went to a bootmaker's, wearing a commoner's cap and gown, and ordered boots, wliith were not sent to him, and straps which were sent to him; and he stated that he belonged to Magdalen College. The prisoner, however, did not belong to that college. Hol- land, B., " If nothing had passed in words, I should have laid down that the fact of the prisoner's appearing in the cap and gown would have been pregnant evidence from which a jury should infer that he pretended he was a member of the University, and if so, would have been a sufficient false pretence to satisfy the statute. It clearly is so by analogy to the cases in which offering in payment the notes of a bank which has failed, knowing them to be so, has been held to bo a false pretence without any words being used."(«) Where the prisoner went to a tradesman's house, and said she came Coleman's from a Mrs. Cook, a neighbour, who would be much obliged if he would ':'}^°: ^ ' p ' _ to Pretence of let her have a half a guinea's worth of silver, and that she would send being sent the half guinea presently; upon which she obtained the silver, wentj^y ''^"^'s'*' away with it, and never returned; the case was holden not to amount tomorrow felony. ("<•) And it is said that, in truth, this was a loan of the silver, '"ono^. upon the faith that the amount would be repaid *at another time j it *298 was money obtained by a/alsc ^iretrnce ; and that the same determina- tion had been made in similar cases at the Old Bailey. («;) So where the prisoner borrowed half a sovereign of the prosecutor under the pre- tence that he wanted to buy some tea, but never returned any money to the prosecutor, and the pretence made use of was stated to be ficti- tious: Parke, J., told the grand jury, who asked his opinion on the case, that he thought this was not a larcenj', and advised them to ignore a bill for larceny of the half sovereign. (a:) We have seen, that it was holden that an indictment for a cheat or Fnaudu- fraud at common law could not be supported against a person for deliv-j*;'."'/ " ering a draft on a banker, which he knew he had no authority to draw, goods by and would not be paid, and thereby obtaining certain lottery tickets. (_y) S'^'"n •" But a different doctrine appears to have been laid down in a case of an ehock upon indictment on the repealed statute CO Geo. 2, c. 24. The prosecutor a banker was a jeweller at Cheltenham, who was defrauded of goods to a consid- ^]|,'^, pj^^^y erable value by the defendants. Among other thing.s, for the purpose keeps no {t) Rex V. Douglass,' 7 C. & P. 785, note {a). {>!) Hex V. Barnard,'' 7 C. & P. 784. And see Reg. ;•. Wickham,'' 10 Ad. & E. .34, where tin; defendant pretended that be was a captain in the West India service, and Coleridge, J., .ifter citing this case added, " Sujjpose in the jjreseut case the defendant had not stated that he was an officer but merely appeared in uniform."' (v) Coleman's case, 0. B. 1785. 2 East, P. C. c. 16, s. 104. p. 672. 1 Leach, 303, note (a). (w) 2 East, P. C. c. 16, s. 104, p. 673. {x) Rex V. George Bromley, Hereford Spr. Ass. 1829, MSS. C. S. G. An indictment was aftenvards preferred for obtaining the half-sovereign by false pretences, and on the trial it appeared that the pretence was true. C. S. G. \y) Rex V. Lara, ante, p. 284. » Eng. Com. Law Reps. xxii. 736. '' lb. xxxii. 29. 298 OF CHEATS, ETC., BY FALSE PRETENCES. [bOOE IV. cash, and of dcceiviug liim, tlicy gave him in payment for the goods a check upon knows will certain bankers in London, with whom it was proved they kept no cash, uotbe paid, and had no account. It was contended on behalf of the defendants, that as far as the check was concerned, they were not criminally liable. But Bayley, J., is reported to have said, <' This point has recently been before the judges; and they were all of opinion that it was an indicta- ble offence, fraudulently to obtain goods by giving in payment a check upon a banker with whom the party keeps no cash, and which he knows will not be paid. "(2;) And the defendants were convicted and sentenced to seven years' transportation. («)■{" ^*od£ by" ^^ ^^ ^^ offence within the 7 & 8 Geo. 4, c. 29, s. 53, to obtain goods means of a by payment of a check drawn by the prisoner on bankers, to whom he check jg unlj^uown and with whom he has no account, he representing that he (iruwii by the prisoner has an accouut, and knowing that the check will not be paid; an in- on bankers dictment may allege the false pretence to be that the check was a good he has ^"^ genuine order for the payment of, and of the value of, the sum neither specified. The first count stated that the prosecutor, a gold and silver- accoum"ie ^'"^^^' ^^''■^ agreed to sell the prisoner a watch and watch chain for 25/., represent- and to deliver the same on payment of the said 25/., and that the pvi- ing that he gQjjgj. jjj^^ aOTced to buv such watch and chain on the said terms ; that u&s fin itc- o •/ ' count, is the prisoner intending to cheat, &c., on the 27th of December produced within the ^nd tendered a certain paper writing as and for a true and valuable or- 4, c. 29, s." ) were cited. Secondly, that the statute did not extend to cases where the prosecutor had only lent, not parted with the property of the money. Patteson, J., <04, .oupro, p. 290. (p) 1 C. & P. GGl,*' .vipra, p. 304. (q) Rcx.i'.Crossley, 2M.&Rob. 17. Ruty?/. the last point. The corrected distinctiou between * Eng. Com. Law Reps, .\xxii. 490. ^ Ih. xi. i>l8. 305 OP CHEATS, ETC., BY FALSE PRETENCES. [BOOK IV. As to tbo By reference to the decisions upon the repealed statute 30 Geo. 2, c. of^thT faUo -"^J ^* seems to be clear that the indictment upon the 7 & 8 Geo. 4, c. j>retencos 29, should state what the false pretences are.(?-)[l]f They should be in the in- j. ^^j. j^ order that the court may see what they are, and whether they come within the statute, (s) But it does not appear to be necessary to describe them more particularly than they were shown or described to the party at the time; and in consequence of which he was imposed upon : and it docs not seem to be necessary to make any express allega- tion that the facts set forth show a false pretence. (<) In a case upon the repealed statute, where it was assigned for error that it was no ""506 where alleged in the ^indictment that the defendant " did /aZscTy pre- tend," the judgment was nevertheless affirmed. The indictment alleged, in substance, that the defendant unlawfully, knowingly, and designedly pretended certain things, ''by means of which said false ijretences" he obtained the money ; and, in the subsequent part of the indictment, all the pretences were to be false ; and the court held this to be sufficient. And it seems also to have been their opinion, that the indictment would have been good if it had only alleged that the defendant obtained the money by such and such pretences, (stating them ;) and then averred The indict- that those pretences were falsc.(M) But a special averment, that the ment must pretences, or some of them, are false, cannot be dispensed with; and, in tho pre'ten- a case upon the repealed statute, where it was omitted, and an exception ees, or some taken ou a writ of error, the judgment was reversed. The court con- false, sidered the case by analogy to the necessary averments in an indictment for perjury, framed under the 23 Geo. 2, c. 11, (y) and were decidedly of opinion that, where a party were charged with obtaining money, &c., by false pretences, and the matter charged as the pretence, contained more than one proposition, the indictment ought to announce the pre- cise charge by distinct averments, and state in what particular such pretences are false. Lord Ellenborough, C. J., said, " To state merely the whole of the false pretenpe, is to state a matter generally combined of some truth as well as falsehood. It hardly ever happens that it is unaccompanied with some truth. Suppose the offence, instead of being larceny and false pretences seem to be that in the former the property was not parted with, in the latter it was. See Rex v. Davenport, Arch. Peel's Acts, 4 ; Rex v. Savage,* 5 C. & P. 143 ; Rex v. Robson, R. & R. C. C. R. 413 ; Rex v. Nicholson, 2 East, P. C. 669 ; Rex v. Adams, R. & R. 0. C. R. 225. But if the cases shoAv that it would not be obtaining by false pretences, still if the jury found that the prisoner obtained the loan with intent to steal, that would be larceny, and he might be convicted of that upon this indictment. See ante, p. 28. C. S. G. (r) Rex V. Mason, 2 T. R. 581. {s) Fuller's case, 2 East, P. C. c. 18, s. 13, p. 837. {t) 2 East, P. C. c. 18, s. 13, p. 837, 838. Terry's case, Cro. Car. 564. (m) Rex V. Airey, 2 East, R. 30, ante, p. 297. {v) Post, Book V., Chap, on Perjury. [1] {See 9 Cowen, 578, Lambert v. The People.} ■j- [In an indictment for obtaining goods by false pretence all the false pretences relied on to sustain the indictment, and to convict the accused, must be specifically negatived ; but to authorise a conviction it is not necessary to prove all the pretences laid in the indict- ment to be false, unless all are material to constitute the offence charged. Where one or more of the pretences are proved to be false, and the pretence or pretences thus proved to be false are sufficient per se to constitute the offence, the accused will be convicted, notwithstanding that the public prosecutor fails in proving to be false other pre- tences alleged in the indictment ; such other pretences will in such case be regarded as surplusage. It is not necessary to a conviction, that the pretences proved to be false, should be the sole and only inducement to the credit or delivery of the property ; it is enough if they had so material an efFect in procuring the credit or introducing a delivery of the property that without their influence upon the mind of the party defrauded, he would not have given the credit or parted with the property. People v. Uaynes, 11 Wend. 557.] * Eng. Cora. Law Reps. xxiv. 24G. CHAP. XXXI. § II.] OF CnEATS, ETC., BY FALSE PRETENCES. 306 comprised witliia five or six separate matters of pretence, as bere, bad branched out into twenty or tbirly, of wbicb some migbt be true, and used only a.s tbe vcbiele of the falsity; arc wc to understand from tbis form of charge that it indicates tbe whole to be fixlsc, and that tho defen- dant is to prepare to defend himself against the whole ? That would be contrary to the plain sense of the proceeding, which requires that tbe falsification should be npplied to the particular thing to be falsified, and not to the whole. And the convenience also of mankind demands, and, in furtherance of that convenience, it is part of the duty of those who administer justice to require that tbe charge should be specific, in order to give notice to the party of what be is to come prepared to defend ; and, to prevent his being distracted amidst tbe confusion of a multifa- rious and complicated transaction, parts of which only arc meant to be impeached for falsehood. The legislature have expounded their under- standing of the matter in the case of perjury; and I am at a loss to dis- cover why, in reason, in justice, and in mercy to the party, tbe charge in tbis case should not be as distinctly ascertained by proper averments that specifically draw his attention to it, as in tbe case of pcrjury."(?i') It appears from this case that it is not necessary that the whole of what is stated in order to obtain the property should be false ; it is sufficient if part is false ; provided that part has a material eficct in inducing the party defrauded to give up bis property, (.r) In a case which has been previously mentioned, on another point, (^) oO/ an objection was taken that the pretence was not stated *witb sufficient ^^^ *" ^'"* (crtainti/, inasmuch as a wager therein mentioned was stated only to with whicii have been made « with a colonel in the army, then at Bath," without ^ ^^^^'^ Pre- setting forth the colonel's name. (2) But the objection was overruled ; gij^uj^ ba and Lord Kenyon, C. J., said, that tbe charge was sufficiently certain stated, to enable the defendants to know what they were called upon to answer for ; and that perhaps the colonel's name with whom the wager was stated to have been made was not mentioned ; in wbicb case he could not have been described with greater accuracy. And further, that if such a wager had been actually depending, it was competent to the de- fendants to have proved it in their defence, f It is sufficient to state the eflfect of tbe pretence correctly, and tbcltissuffi- very words used need not be stated. The indictment alleged that the ^J]^"^ ^^ prisoner did falsely pretend that he was tbe servant of one T. Groves, oiTfct of of Gloucester, butcher, and that be was sent by the said Groves to look 1^^,.^'^^^^ at two heifers, the property of the prosecutor, for the said Groves, and rectly. that he was sent by the said Groves to buy the said heifers of the pro- " (w) Rex V. Perrott, 1814. 2 M. & S. 379, 386. (z) And see Rex v. m\\, post, 310. \y\ Rex t'. Young and others, ante, 288, et seq. (r) See the abstract of the indictment, ante, p. 287. f [Wlicn a signature to a note has been obtained by false pretences, and the party de- frauded has been obliged to pay the note, the indictment may charge the sum paid to have l)cen obtained by fal.=e pretences, without setting forth the obtaining of the signature. The People v. Ilcrrick, "l3 Wend. 87. An indictment for false pretences need not state all the property which the defendant ob- tained by the false pretences set forth. The People v. Parish, 4 Dcnio, 153. The offence of cheating by false pretences is, in judgment of law, committed when the false pretences are successfully used, and when the money or property is obtained, although the fraud originated and was contrived elsewhere. People v. Adams, 3 Denio, 100. An allegation in an indictment that the defendant obtained goods of A., B. and C, part- ners in trade, by false pretences made to them, is supported by proof that the defendant made the alleged false pretences to a clerk or salesman. Commonwealth v. Hurley, 7 llct- calf, 462.] 307 OF CHEATING, ETC., BY FALSE TOKENS [bOOK IV. / secutor foi* the said Groves, and that tlie said Groves would buy the said heifers for the sum of 2Sl. lOs., and that the said Groves would pay the prosecutor the said sum of 23/. 10s. for the said heifers, and that the said G roves would be over on the next Thursday, and would pay'' the prosecutor for the said heifers on that day. The evidence was, that the prisoner said he came from Groves, &c., and that either Groves or him- self would be over the following Thursday; and it was submitted that the indictment was supported ; first it was sufficient to state the eifect of the evidence correctly, and that the allegation that the prisoner was sent by Groves was supported by proving that he said " he came from Groves." Secondly, that the alternative that the prisoner would him- self come was a mere naked lie, on which no indictment could be sup- ported, and, therefore, it was unnecessary to state it in the indictment ; and Littlcdale, J., held that the evidence was sufficient to support the indictment; and the prisoner was convicted. (a) Indictment An indictment for obtaining goods by false pretences must state them must state ^^ ^g ^^^ property of some person, and it is not sufficient to state that to be tho they were obtained from a person with intent to defraud that person of property of the same. The indictment stated that the defendant made certain false eon. ' pretences, by means of which he obtained from S. Yates a certain sum of money, with intent to cheat and defraud the said S. Yates of the same. Alderson, B., " There is an objection to the indictment in this case. The money which has been obtained is not laid to be the property of any person, which it ought to be, in order to exclude a subsequent indictment for larceny. It would be impossible to plead an acquittal or conviction on this indictment in bar to a prosecution for larceny under the provi- Ifitdo notsions of the statute." And the court ordered the indictment to be afte - c(iiashed.(6) And if such an indictment omit to state to whom the goods diet. belonged, is bad upon error, and the defect is not cured by the 7 Geo. *308 4, c. Qi, s. 21. (c) The indictment stated that the *defendants made certain false pretences, and that they thereby obtained from W. J. Holt, divers goods and merchandises, with intent then and there to cheat and defraud the said W. J. Holt of the same ; and the defendants having been convicted and sentenced to be transported, error was brought upon the judgment, on the ground, among others, that it was not stated in the indictment that the goods were the property of any person ; and the court held that the indictment was clearly bad upon the face of it, and that it was not made good after verdict by the 7 Geo. 4, c. 64, s. 21; for that enactment assumes that the words shall be so employed as to show that some offence had been committed ; and there were many instances in which, if merely the statutory form were followed, no of- fence would be charged, in which cases it would not be sufficient to de- scribe the offence in the words of the act. Thus it would not be enough to charge the stealing goods in a dwelling-house, the destroying a will, the taking pigeons, without adding whose goods, whose will, whose pigeons, (cc) Heed's Where an indictment alleged that the prisoner having in his posses- case. g-Qj^ ^ certain iron weight, of the weight of twenty-eight pounds and no more, on, &c., did falsely pretend that a certain quantity of coals, (a) Rex V. John Scott, Hereford Spr. Ass. 1832, cited in Rex v. Parker, ante, p. 300. (h) Reg. V. Norton,* 8 C. & P. 19G, Alderson, B., Williams and Coltman, Js. (c) Ante, p. 115. (cc) Reg. v. Martin,!' 8 Ad. & E. 481. ' Eng. Com.La'iv- Reps, xxxiv. 350. •> lb. xxiv. 443. CnAP. XXXI. § II.] AND FALSE PRETENCES. 308 which he then and there delivered to and upon the premises of the prosecutor, weighed sixteen cwt., (meaning one thousand seven hun- dred and ninety -two pounds weight;) that the said coals were worth the sum of 1^., and that the said iron weight was a half-hundredweight, (meaning of the standard weight of fifty-six pounds;) by means of which false pretences he unlawfully obtained one sovereign, with intent to cheat the prosecutor of part thereof, to wit, the sum of 10s., ('/) and then negatived the pretences ; after a verdict of guilty, it was moved in arrest of judgment, that all the false pretences, except that relating to the false weight, were no more than false affirmations ; and that as to the weight there was no allegation to connect the sale of the coals with the use of the weight ; and, upon a case reserved, the judges held that the indictment was bad, and the conviction wrong.(r) Where an indictment for false pretences stated that the defendants, Henderson and Barlow, did falsely pretend to F. Pawson, that he the said J. Barlow was then and there possessed of a certain sum of money, to wit, the sum of 12^., '' and that if Pawson would exchange his mare for Henderson's horse, Barlow was ready to purchase the horse of Pawson and pay him 12^.; by means of which false pretence, the de- fendants obtained the mare from Pawson with intent to defraud him of the same ; whereas, in truth and in fact, the said J. Barlow was not then and there possessed of the said sum of 121. , and was not then and there ready and willing to purchase the said horse of the said F. Paw- son, and was not then and there ready and willing to pay the said F. Pawson the said sum of 12/." And it was held, upon a case reserved, that the indictment was bad, as it did not allege that the defendants or either of them knew that Barlow had not the money, and did even charge that the defendants did knowingly falsely pretend that Barlow had the sum of 12/. (ce) In the same case the defendants pleaded a plea of autrefois acquit, which stated that the defendants were indicted for stealing a mare of J. Pawson, and were acquitted; and averred the identity of the defendants, of F. Pawson, and the mare, and that the taking of the mare in the former indictment, and the obtaining the mare in the present indictment, were one and the same, and that the larceny to which the obtaining the mare would amount, if, upon the trial, on the indictment now pending, it should be proved that they ob- tained the mare in such manner as to amount to larceny, and the said larceny of which the defendants had been acquitted, were one and the same, and not other and different larcenies; and upon demurrer to this plea it was held, upon a case reserved, that the plea was bad, as it did not show that the pri.soners had been in jeopardy for the misdemeanor charged in this indictment, and t he first ac<|uittal might have been on the ground that the offence did not amount to a felony .(_//") It is con- ceived that no i^lea of autrefois acquit on an indictment for felony, could bo successfully pleaded to an indictment for obtaining goods by false pretences, unless it could be averred and proved that the facta { lb. xli. 183. 308 OF CHEATING, ETC., BY FALSE TOKENS [BOOK IV. amounted to a larceny, because unless that wore so the defendant could not have been convicted of the larceny. But that an acquittal on an indictment for obtaining goods by false pretences might in all cases be successfully pleaded to an indictment for stealing the same goods, as on such an indictment for obtaining goods, the prisoner might have been convicted, although the facts amounted to a larceny. C. S. G. Tully'3 Where the first count of an indictment charged that the prisoner did case. falsely pretend to J. Lovelock that he was sent by W. P. for an order to go to Bracey's (meaning J. Bracey, a shoe factor) for a pair of high shoes : by means of which false pretence he unlawfully obtained from the said J. Bracey one pair of shoes of the goods and chattels of the said J. Bracey, with intent to cheat the said J. Loveloch of the price and valne of the said shoes, to wit, of the sum of nine shillings of the moneys of the said J. Lovelock ; and the second count charged that the prisoner did falsely pretend to the said J. Lovelock that W. P. had said that the said J. Lovelock was to give him an order to go to Bracey's for a pair of high shoes ; by means of which false pretence he unlaw- fully obtained from the said J. Bracey, in the name of the said J. Lovelock, one pair of shoes, of the goods and chattels of the said J. Bracey, tcith intent to cheat the said J. Loveloch oi the same; the *309 prisoner having pleaded guilty, judgment *was arrested on the ground that neither count charged an ofi"ence within the 7 & 8 Geo. 4, e. 29, s. " Feloni- It has been held that if the indictment state that the prisoner ye?o- t" d "a b'^d' '^^''^^'^(y pretended, it is bad. The indictment alleged that the prisoner " unlawfully, knowingly, and designedly did feloniously pretend ;" and Law, E,., thought that the indictment was bad, and after consulting Bosanquet and Taunton, Js., stated that they were of the same opinion, and the prisoner was therefore acquitted. ( indictment "Mr. Brooks, f^.r^i,^ "Please to let the bearer, William Turton, have for J. Roe four pretences yards of Irish linen and a waistcoat. supponed. "John Roe." " Jan. G, 1833." Taunton, J., held that this was a forged request for the delivery of goods within section 10 of the 1 Wm. 4, c. 66; that it was a felony and not a misdemeanor, and that the prisoner must be acquitted, (/i*) *Upon an indictment for obtaining money by false pretences, the pre- *310 tences which, as we have seen, must be distinctly set out,(/) must at the The pre- trial be proved as laid : so that, where the indictment stated that the ^^l\ defendant pretended that he had paid a sum of money into the Bank oyprored EiKjland, and it appeared upon the evidence that he did not say that hc^'^^'^' paid the money, but that he said generally that the monrij had been paid into the bank. Lord EUenborough, C. J., held this to be a fatal variance; and said, that an assertion that money had been paid into the bank was very different from an assertion that it had been paid into the bank by a particular individual. (??i) But it is not necessary to prove Not nocos the whole of the pretence charged : proof of part of such pretence, and ^'^'^ *° that the money is obtained by such part is suflScient. An indictment the proter on the repealed statute 30 Geo. 2, charged the prisoner with obtaining*=**^ J P''°°f money under colour of obtaining a pension for a discharge seaman, by that the falsely pretending that the prisoner had received an answer by letter, in monoy wm reply to an application he had made on the seaman's behalf, that two °,j!^t'p^rt, u guineas must be sent to the under clerks as fees, iohich tliri/ always sM^c'ianx. (xpectedf and that nothing could he done without it. There was no evi- dence that the prisoner used that part of the pretence in italics, but there was evidence that he used the residue, and by means thereof obtained the money : and on a point saved, the court held it not necessary that (/) Rext>. Hempstead, Mich. T. 1818. MS. Bayley, J., and Russ. & Ry. 344. {jj) Foster, 373. [k) Rex V. Evans,* 5 C. & P. 553. See other similar cases in the Chapter on Larceny, post. {I) Ante, 306. (m) Rex V. Plestow, cor. Lord EUenborough, C. J., 1808. 1 Canipb. 494. » Eng. Com. Lr^w Reps. xxiv. 453. 310 OF CHEATING, ETC, BY FALSE TOKENS [BOOK IV. the wliole of tlio pretence charged should have been proved, and that the conviction was right. (?A Troof of But the rule that it is sufficient to prove any part of the pretences part of j^jj j£ ^YiQ property were obtained thereby, must be confined to those protonces it. i • i i r- • /< so con- cases where such part is a separate and independent pretence ; lor it noctod to- f.^|gg pretences are so connected together upon the record that one can- thoy cannot not be Separated from the other, and the statement that one of those bo severed pretences is insufficient in point of law, no judgment can be given upon cient. " t^^^ other pretence. The iudictment stated that the prisoner "did falsely pretend to W. "Walker that he was a captain iu the service of the East India Company, and that a certain promissory note, which he then and there produced and delivered to the said W. Walker, purporting to be made for the payment of the sum of 211., was a good and valuable secu- rity for the sum of 211.;" " whereas the defendant was not a captain in the service of the East India Company, and whereas the said promissory note was not a good and valuable security for the sum of 211., or for any other sum of money whatsoever." Upon error, it was objected amongst other things, that the allegations respecting the note were too loose. No description of the note was given. The record did not show who was the maker, nor when the note was payable. Something ought to have been stated to identify it, and the indictment ought to have shown how the note proved not to be a valuable security. It might have been a forgery, or invalid, for want of a stamp. The record ought *311 to show that the defendant knew the instrument to *be worthless. It might have been a note drawn by himself, and then so far as it was a token, it was a true one. On the part of the crown it was admitted that the defendant's knowledge was not alleged, except by the words "false- ly" and "fraudulently," which was not sufficient, and the note was not set out so as to identify it. But the false pretence of being a captain in the East India Company's service was properly alleged, and bore out the conviction. The crime as charged being made up of two false pre- tences it must be presumed that the judge would tell the jury that one of them was so laid as not to call for an answer, (o) Lord Denman, C J., " The indictment here omits to say in what respect the note was not valuable. It may have been for want of a stamp or from other causes. We do not mean to throw any doubt on the late decisions, and there is much of the argument for the defendant below in which we do not con- cur. But the pretences stated in this indictment must be taken to- gether, and the falsification as to that part which relates to the note is not sufficient. The judgment must therefore be reversed." Patteson, .J., "I do not know that I should have gone the whole length of revers- ing this judgment if the note had appeared to be that of another per- son ; but consistently with this indictment, the note may have been the defendant's own, and then the pretences are so connected together that we cannot separate them."(j9) (n) Res V. Hill, East. T. 1811, MS. Baj-ley, J., and Russ.& Ily. 190. In Rex v. Ady,» 1 C" & P. 140, Patteson, J., said, " It is not necessary that all the pretences should be false. If you believe that any one of them was false, and that the mind of the prosecutor was operated upon by it, then you will find the defendant guilty." See per Coleridge, J., in Rex v. Dale, post, p. 310. (o) Lord Denman, C. J., observed, " Can we presume on a writ of error? On a special verdict it might have been stated that the jury convicted as to one pretence, but negatived tlie other." (p) Reg. V. Wickham,'' 10 Ad. & E. 34. Littledale and Coleridge, Js., concurred. » Eng. Com. Law Reps, xxxii. 469. ^ lb. xxxvii. 29. CHAP. XXXI. § II.] AND FALSE PRETENCES. 311 It must be shown that the prisoner obtained the goods by means of Tho pooda some of the false pretences laid in the indictment. The indictment sta- ^"^[00^ by ted that the prisoner did falsely pretend that he was a gentleman's ser- means of vant, that he had lived in Brecon, and that he had bouirht twenty hor- ^°'""' '^^^^^ o •/ pretences ses in Brecon fair, and that he thereby obtained a fdly from the prose- lai*• 4- deluded and defrauded, enacts, " that if any person shall pretend to preTeuding exercise or use any kind of witchcraft, sorcery, inchantmcnt or conjura- to exercise tion, or undertake to tell fortunes, or pretend from his or her skill or ^^j.'" ^^,'"j"jf*^_ knowledge in any occult or crafty science to discover where or in what tunes, ) and also shall (if the court by which such judgment shall be given shall think fit) be obliged to give sureties for his or her good behaviour, in such sum and for such time as the said court shall judge proper ac- cording to the circumstances of the offence, and in such case shall be further imprisoned until such sureties shall be given." The .'>2 Geo. 3, c. 5G, entitled "An act for preventing the counter- 32 Goo. 3, feitiun; of certificates of the characters of servants," after recitino; the l' '' '' " ° , . , . . ° fences rc- great and increasing evil occasioned by false and counterfeit characters latiug to tbo of servants being given either personally or in writing, by evil disposed ff'|'"'K />' persons, enacts, that any person falsely personating any master or mis- aeter.s to tress, or the executor, administrator, wife, relation, housekeeper, steward, servants agent or servant, of a master or mistress, and, cither personally or in i")|a|jio by writing, giving a false character to a servant ; or pretending, or falsely a penalty asserting in writing that a servant had been hired for a period of time, 1"/^^ b"eforo or in station, or was discharged at any other time, or had not been hired two justi- in any previous service, contrary to truth ; and any person offering him- ^^^' self or herself as a servant, pretending to have served where he or she has not served, or with a false certificate of character, or who shall alter (z) See 1 Chitty's Statutes, 387, for the cases decided on this statute; to which may be added Doe dcni Tunstil v. Bottricll,* 5 B. & Ad. 131. S. C. 2 N. & M. 64, and Kcrrlson v. Dorricn,'' Binf;. 7*>. (a) Ante, vol. 1, p. 455. The puuishnicnt of the pillory is abolished by the 1 Vict. c. 23. » Eng. Com. Law Reps, xxvii. 64. *> lb. xxiii. 269. u 316 or FORGERY. [book IV. such certificate; and any person who having before been in service shall pretend not to have been in any previous services; shall, on conviction before two justices, forfeit the sum of twenty pounds.(fZ) LG Geo. 3, The statute 56 Geo. 3, c. 63, which was passed for regulating the c., 03, s. 12. general penitentiary for convicts at Millbank, in the county of Middle- servants of sex, enacts by sec. 12, that if the coiniuittee ^appointed by the act) shall the Pcni- guspect any fraudulent or improper charo-es in any accounts of the gov- tentiary at ^ n cc . • ■ .i • ^i Millbank emor, or other oincer or servant, or any omission therem, they may ex- *317 amino on oath, &c. ; and in case there shall appear any *false entry, making any linowingly made, or any fraudulent omission, or other fraud or collusion, oi-fraudu^ they may dismiss the officer, &c., and cause an indictment to be pre- lent omis- fcrred against them at the next quarter or other general session of the ^""^^"l peace for the county wherein the penitentiary is situated, or any other Ac, may adjoining county, and that in case the person indicted be found guilty be indicted. Qf g^jj^ ^^ offence, he shall be punished by fine and imprisonment at the discretion of the court. We have already seen the provisions relative to the fraudulent omis- sions in the schedules of insolvent debtors. (e) Mutiny The annual mutiny acts usually contain clauses providing for the ^'^ ^* punishment of apprentices and other persons fraudulently enlisting themselves. (/) Cheats and frauds and false personation, for the purpose of obtaining the pay, prize-money, &c., of soldiers or sailors, are mentioned in sub- sequent chapters, (r/) Cheats and jn addition to the statutes which have been thus mentioned, there particular ^^0 others relating to cheats or frauds practised by servants and others, trades. in particular trades, and punishable by pecuniary fines or summary proceedings, before magistrates, which will be found arranged under their proper titles in that very excellent work, " Dr. Burn's Justice of the Peace." *318 *CHAPTER THE THIRTY-SECOND. OF FORGERY.(A) Definition. FoRGERY at common law has been defined as "the fraudulent (d) See the different sections of the statute, the substance of which only is here given . The statute provides also that the informer may be a witness, and indemnifies offenders dis- covering accomplices before information. It also gives a form of conviction, provides for the recovery of the penalties, and gives an appeal to the quarter sessions. An abstract of the statute is given in 5 Burn's Just., Servants, sec. 2. In 8 Ev. Col. Stat. Pt. vi. CI. xxxi. No. 12, p. 309, note [1], the learned editor says, that a case which he had lately known to occur, is not within the provisions of the act, although attended with all the mischiefs intended to be provided against by it, viz., the case of assuming the name of another person who has been a servant in the same place with the offender. Asto the civil consequences of know- ingly giving a false character, see 1 Bla. Com. 432, note (13). (c) Ante, p. 235. (/) As to similar offences by persons enlisting into the marine forces, see the annual acts relating to those forces. We have seen that it was a cheat or fraud at common law for an apprentice to enlist as a soldier, and obtain the King's bounty. Jones's case, atite, p. 278. And see Burn's Just. Military Laiv. (ff) See post. Chap, xxxiii. On the Forgery of Official Pajjers, c^-c. ; and Chap, xxxv., On False Personation. (A) Massachusetts. — An indictment for forging a promissory note, need not allege the endorsement of the note, though it be forged. It is no part of the note ; and a motion CHAP. XXXII.] OF FORGERY. 318 making or alteration of a writing to the prejudice of another man's right ;"(r;^ or, more recently, as "a false making, a making mah ani- in) 4 Bla Com. 247. for a new trial because the endorsement was not alleged, was unanimously overruled. Commonwealth v. Ward, 2 Mass. Hep. 307. UttL'i'iii;^ a forged bank bill, with the name of a fictitious carshicr countersigned thereto, was not within the statute of IKOO, c. (J4 ; but it is a fraud at couiinon law, " and the court is bound to animadvert upon it." A motion in arrest of judgnieut, because the jurj' found that the name of the cashier inserted in the forged bill, " was not the name of any jjerson who has been at any time, cashier of the said bank," was overruled, and judgment for the fraud at common law, was rendered against the defendant. Couimonweallh v. Uoynton, 2 Mass. Rep. 77. (The same course has been pursued in other cases by the judges in this State, at nisi priitaA The possession of materials devised, adopted and designed, for forging and counterfeiting bank notes, without an intention to use them in counterfeiting, is not an ofi'ence within the statute of 1804, c. 130. The words, " devised, adopted, and designed," relate to the form of the nature of the materials. They have no reference to the person having them in his possession, to his own intention. Commonwealth v. Morse, 2 Mass. Rep. 128, 132. Where a merchant entrusts his clerk with his blank endorsements, and one by false pre- tences obtains and uses them, such fraudulent use of them is not forgery ; " the paper with the blank endorsement was delivered with the intention that a note sliould be written on the face of the paper l)y the proiniscr, for the purjjose of negotiating it as endorsed in blank by the house; and we must consider the delivery by the clerk, who was intrusteil with the power of using these endorsements (although his discretion was confined) as a delivery by one of the house, — whether he was deceived, as in the present case, or had voluntarily ex- ceeded his discretion ; for the limitation imposed on his discretion was not known to any but himself and his principals. If the clerk has fraudulently, and for his own benefit, made use of all the endorsements tor making promissory notes, to diarge the endorsers, we are of opinion that this use, though a gross fraud, would not amount to forgery ; and for the same reason wheu one of these endorsements was delivered by the clerk who had the custodj' of them, to the promiser, who by false pretences had ol)tained it, the fraudulent use of it would not be forgery." Per Parsons, C. J., in Putnam it al ». Sullivan & al., 4 Mass. Rep. 53. Murry IJrown was indicted upon the 2d sect, of the statute of 1804, c. 120, for having in his possession ten or more counterfeit bank bills, with intent to pass them, lie was con- victed and sentenced on this iiulictmcnt, and afterwards brought a writ of error to reverse tiie sentence and assigned the following errors : that the bills were alleged to be payable to the bearers thereof, instead of bearer : that they were not alleged to be similar bills ; that they were described as promissory notes, or bank bills ; and that it was not alleged that the plaintiff in error had knowledge of the false making, «fcc. The objections to the in- dictment were, by the unanimous opinion of tlie court, held to be insutlicient, and judg- ment was rendered that the prisoner take nothing by his writ. Brown, in Error v. Com- monwealth, 8 Mass. Rep. 59. In the case of the Commonwealth v. Ilayword, 10 Mass. Rep. 34, it was decided, that it is not an indictable offence, to tear or cut a piece out of a bank note, with intent, with the bill thus altered and with such piece, together with other pieces of similar bank notes, altered, cut, and torn out, to form other bank bills, with intent to utter the same, and thereby to injure and defraud the banking company issuing such notes. (The method i)ursued by the defendant was, to take a number, say seven bills of the same liank, and of the same denomination, and to cut a strip, perpendicularly from each bill, uniting the parts thus separated, and with the several strips united, to form an eighth bill.) In this case tiie court said, '• it was a nondescript offence, and not within the provision of the law against altering bills, which is such an alteration as increases the ai)pMreut value of the liill. If there is danger of the growth of this practice, the legislature will provide a statute to nu'Ct the evil. If the de- fendant had completed, what may be presumed to have been his intent, and had made an eighth bill, ])erhaps this would have been forgery." On an indictment for altering an order for money pa)'able to the defendant, the evidence was his confession that another did it, the defendant knowing, and being present at and consenting to the alteration, and it was held sufficient to warrant a conviction. Common- wealth V. Stevens, 10 Mass. Rep. 181. The procuring a counterfeit bank bill to be passed by an ignorant boy as a true one, was held to be a sufficient passing within the statute of 1804, c. 120, s. 3. Commonwealth v. Hill, 11 Mass. Rep. 13iJ. jPost 39G, note (l).[ la an indictment for forging an acquittance, it is not necessary to allege that any goods were delivered in consideration of such acquittance. The false making with intent to de- fraud, is the gist of the offence. A bill of parcels was given of the following tenor, viz.: "Mr. John Ladd, bought of Kveleth & Child, 2.18 Sivcdes iron, $4.80, the above charged to Geo. Carpenter," which bill the defendant altered by adding thereto the words, '-by order, 318 OF FORGERY. [BOOK IV. mo J of any written instrument, for the purpose of fraud and deceit '■' (b) the word " making" in this last definition being considered as including {b) 2 East, P. C. c. 19, s. 1, p. 852. Rex v. Tarkes and Brown, 2 Leach, 785. 2 East, P. C. C. 19, s. 49, p. 965. Evcleth & Child" — it was held that this addition amounted to an acquittance of John Ladd, and was a forgery within the statute of 1804, ch. 120, s. 1 ; that the addition pur- ported to be an acknowledgment by Eveleth & Child, that the goods delivered to the defend- ant were charged to Carpenter, by his order, and that this amounted in law, to an acquit- tance or discharge of the defendant. CommonAvealth v. Ladd, 15 Mass. Rep. 526. To constitute a forgery of " an order for the delivery of goods" within the statute of 1804, ch. 120, s. 1, it is not necessary that the person whose name is forged, should have goods in the hands of the drawer. This point was settled in the case of the Commonwealth v. Fisher, 17 Mass. Rep. 46. The words of the order were, "Mr. Parker — Sir, deliver my son, one pair of walking shoes, and charge the same to me. — Yours, James Fisher." The jury returned a special verdict, " that the said James Fisher had no goods or effects in the hands of said Parker, when the order was made, or afterwards" — " but whether the order was, within the true intent and meaning of the statute, an ' order for the delivery of goods' the jury are ignorant and pray the advisement of the court," &c. It was argued for the defend- ant, that the paper cited in the indictment was not an " order for the delivery of goods," but a mere request ; that the words in our statute are a transcript of the statute of 7 Geo. 2, c. 22, and that the judicial construction of that statute has been similar to that now con- tended for. But by the court, " the language of our statute is similar to that of the statute on which the English decisions are founded, and in favour of life the latter received a stricter, construction than we think it necessary to give to our own, by which the life of the offender is not put in jeopardy. We are all satisfied that the facts found by the jury, bring the defendant within the statute upon which the indictment was framed : and that it makes no difference in the crime whether the supposed drawee of the order has funds in the hands of the drawer or not." S. P. 2 Bay's Rep. 262. In the case of the Commonwealth v. Hutchinson, 1 Mass. Rep. 7, it was unanimously de- cided by the court that the persons whose signature is alleged to be forged, is not a com- petent witness to prove the forgery, unless the instrument alleged to be forged, is produced at the trial. The court said, that although the practice in England was now settled not to admit the person as a witness to the forgery whose name was forged, the practice in this state has been otherwise for a long time. In a subsequent case, where nothing was alleged in the indictment as an excuse for not producing the instrument, on proof that it had been secreted by the prisonet, or his friends, the court permitted a copy to be given in evidence. The Ch. Justice observed, "that in this State for a period of thirty years at least, a witness has been considered as competent, both in criminal and civil prosecutions, unless he was interested in the event of the suit ; in the present case, whether the defendant was convicted or acquitted, Smith (the person whose name was forged.) might be sued on the note in question, as a genuine note : and the ver- dict upon this indictment could not be given in evidence ; for although an instrument found to be forged, is retained on the files of the court, yet any person interested may have a copy, by which to form his writ, and a duces tecum to the clerk to bring the original into court on the trial ; Smith was therefore properly admitted to testify, the objection against him going only to his credibility. Commonwealth i\ Suell, 3 Mass. Rep. 82. See the opinion of the court in this case upon another point, viz., in what cases the pro- duction of the instrument will be dispensed with. See also the case of the Commonwealth V. Houghton, 8 Mass. Rep. 107, in which it was decided, that in an indictment on the statute for having in possession more than ten counterfeit bank bills, it is necessary to describe the bills in the indictment, or to assign a sufficient reason why they are not described. {See post, 359, note.] In the cases of Commonwealth v. Bailey, 1 Slass. Rep. 62, and Commonwealth v. Stevens, 1 Mass. Rep. 203, it was decided that it is not necessary to set out the ornamental parts of a bank bill, its devices and mottos, in an indictment for forging or uttering the bill. CoxxECTiccT. — In the case of Bruce v. Ross, 1 Day's Rep. 100, the following points were decided : 1. That a person injured by a forged note, though the note was not forged in his name, may have an action on the statute for the forgery :— 2. That an action on the statute to recover damages for a forgery, is not barred in one year by the statute of limitations ; — 3. That evidence that a' note is in the hands of a defendant, and that it was forged, is ad- missible without producing the note ; — 4. That in such case it is unnecessary to give the de- fendant notice in the declaration, to produce the note. New York. — In the case of the People v. Thompson, 2 Johns. Ca. 342, it was decided that forging the following order, viz., " Captain Godfry, Sir. the bearer, Mr. Richardson, being our particular friend, who has occasion to proceed from New York to Philadelphia, we have requested him to call on you, desiring you to accept his draft on us, on demand, for fifteen dollars, your compliance will much oblige, Sir, Your humble servants, Gibbs & Channing," CHAP. XXXII.] OP FORGERY. 318 ovei*y alteration of, or addition to, a true instrument. (c) Besides the offence of forgery at common law, which is of the degree only of mis- (r) Id. ibid. As to the word forgc^ it is said in 3 Inst. 1C9, "To forge is metaphorically taken from the smith, who beateth \\\wx\ his anvil, and forfrcth what fashion or shape he will : the otl'ence is called crimen falsi, and the offender /a/sanws ; and the Latin word to forge is falsare, or fabricare." — is not forging an order for the payment of money within the statute ; but by a subsequent statute, Sess. 24, c. 54, such an order, or request, is declared to be forgery. The court in delivering this opinion, cited 1 Leach, 111. Fost. 19, Mitchell's case. 1 Leach, 134, Wil- liams's case. 1 Leach, 3G5, Ellor's case. 2 Leach, 615, Church's case. In all these cases, it was ruled that the order was not within the statute, because it did not purport to be the order of a person who had, or assumed to have authority to make it. The words of the statute of New Yorlv, above referred to (Sess. 24, ch. 54) are, " any warrant or order for payment of money or delivery of goods, whether such order puri)orts to be the order of the owner of the goods or money specified therein, or of some person who claims interest in the same, or of any other person, with intention to defraud," &c. The latter statute is said to have been I)assed in consequence of the construction given in this case to the former one. A person indicted for forging " an order for the payment of money," is not entitled to a peremptory challenge, it being an offence under the statute, punishaV)le only with imprison- ment for a term of years. A bank check will fall within the description of " an order for the payment of money," and may be so described and alleged in an indictment for the forgery of it. With respect to the rule of admitting the person whose name is forged as a witness on the trial for forgery, Kent, 0. J. observes, " the ancient rule in England, that a witness whose name was forged was incompetent to prove the forgery on an indictment, because he was interested in the question, still prevails in their courts, and was adopted by this court in the year IT 94. The grounds or reasons of that decision are not before the public, and there- fore we do not know them ; it is probable the court assumed the English rule, as they found it then existing. But since that time, the question of interest in a witness, has been investi- gated and defined with more precision both in England and in this state. The rule now in all such cases, and I believe in almost all criminal cases, except in a case of a forged instru- ment, is that the witness is to be received, if he be not interested in the event of the suit, so that the verdict could be given in evidence in an action in which he was a partj*. The inter- est which the witness may have in the question put, is no longer the test. That degree of interest, goes only to the credit of the witness. The exclusion of the witness, in the case of forgery, has therefore become an anomaly in the law of evidence, for it is certain, that the conviction of the party charged with forging a check, cannot be given in evidence in a sub- sequent civil suit on the check; and as the reason of the old rule has ceased, by a sounder definition of the question of interest, and as it is not now applied to other criminal cases, it would seem to be fit and proper, that the rule itself should no longer be applied to the case of forgery." The People v. Howell, 4 Johns. Rep. 296, 302. Forging a paper in the following words, " Mr. Seward — Sir, Let the bearer trade thirteen dollars, twenty-five cents, and you will much oblige yours, &c. Aug. 16, 1809. Samuel Laj'ton," — was held to be an order for the delivery of goods within the statute, (24 Sess. c. 54,) and the terms of it suflBiciently explicit and intelligible. The People i'. Shaw, 5 Johns. Rep. 236. Since the act of Sess. 30, c. 173, s. 1, it is not a felony in this state to utter and publish a forged bank note of another state, of a sura less than one dollar ; nor is a person possessing such a note with intent to utter it, indictable under the act of Sess. 31, c. 155, s. T. Notes of this description are not absolutely void, for they may be collected of the bank by which they are issued ; but tlic circulation of them in New York is prohibited by the first mention- ed statute. The People v. Wilson, 6 Johns. Rep. 320. Forging an order in these words, " To the Cashier of Levi McKean's change office, pay to John Low, or bearer, fifteen hundred dollars, in N. Myers' bills or yours — David B. Lcist," is not within the act to prevent forgery. The language of it is too indefinite; whether Myers' bills, or McKean's bills are money or goods, is wholly uncertain. It is not an order for the payment of money, nor for the delivery of goods. The People v. Farrington, 14 Johns. Rep. 348. — (Qiiwre) is not such a fraud cheating by false tokens? Is not a cheat punishable at common law r Forging a deed within this state for lands lying in the Missouri territory, or in another state, is an indictable offence under the acts to prevent forgery. (1 N. R. L. 405, 408.) It cannot be material where the lands lie, if the act of forgery, and the existence of the fraud- ulent intention, both concur and lia])i)cn within this state. The i)risoncrs have committed no offence cognizable bj' the laws of Missouri. The corpus delicti is here, and here the pri- soners are punishable, or no where. The forgerj' of bills of banks in other states, when forged or uttered within this state scienter, has been punishable as an offence within this statute. Such forgeries are punish.able under the statute, on the sole ground that they are frauds upon our own citizens. The People t'. Flanders and Ilauy, 18 Johns. Rep. 164. 318 OF FORGERY. [BOOK IV. demeanor, there are a great many kinds of forgery, especially subjected to punishment by the enactments of a variety of statutes, which many Pennsylvania. — The forgery of any writing which may be prejudicial to another, is indict- able at common law. Pennsylvania v. M'Kee, Addis. 33, 34. Forgery of a name to an assignment of a l)on(l, is indictable, although there be no seal to the forged assignment, as it gives a possil)ility to defraud. A co-obligor may be guilty of forgery, in assigning a bill given by himself and another; but his possession of it may be evidence of and authority over it, and if there be no intention to defraud, it is no forgery. Pennsylvania v. Misner, Addis. 44. Notwithstanding the expiration of the corporate powers of a bank, it is still an indictable offence and punishable within the act of April 22, 1794, to pass a counterfeit note of such a bank, knowing it to be counterfeit; and any forged note, counterfeiting a genuine note of a bank whose corporate powers have expired, is a counterfeit note of such bank. This was decided upon a writ of error brought against the Commonwealth by one White, who had been convicted of passing a counterfeit note of the bank of the United States. The objection to the indictment was, that at the time the offence was alleged to have been committed, the bank of the United States was not in existence ; the period for which the stockholders were incorporated, having expired. The indictment was founded on the act of Pennsylvania, of April 22, 1794, s. 5, by which it is made penal for any person to pass a counterfeit note of the bank of the United States, knowing it to be such. — " Although the corporation (the bank of the United States) was not in existence when this counterfeit note was passed, yet the genuine note represented by it, had a legal existence. The notes are still in circulation and the trustees in whom the stock was vested after the dissolution of the corporation, are bound to pay them. The act of Assembly on which this indictment was founded is still in full force; and even the act of Congress incorporating the bank of the United States, is for some purposes in force, although the corporation expired the 4th of March, 1811. But whether the notes were receivable in payment or not, they had a lawful existence until they were paid and cancelled." Per Tilghman, C. J., in White v. The Commonwealth, 4 Binn. 418. On an indictment for forging a receipt by adding a farther sum, judgment was arrested after conviction, because the presumption, arising from the mannerof stating the offence was, that the additional sum was added, (inserted) after the name, and so no one could be deceived by it. Pennsylvania v. M'Kee, Addis. 33, 36. The offence of uttering, publishing, and passing a counterfeit bank note of another State with intent to defraud, is punishable by imprisonment at hard labour, under the act of April 5 1790, s. 4. " I see no reason to doubt, that by the common law, this offence was subject to an infamous punishment , and that being the case, it falls within the 4th section of the act of the 5th of April, 1790. Per Tilghman, C. J., in the case of Lewis v. The Common- wealth, 2 Serg. & Rawle, 551. In the case of the Commomvealth v. Searle, 2 Binn. 332, the following points of law were settled: — 1. That the publishing of a forged writing of a private nature, though not under seal, with intent to defraud, is an offence indictable at common law. This point was fully investigated and decided in the case of the King v. Ward, 2 Ld. Raym. 1461. 13 Geo. 1. Since which the law has been considered as settled. — 2. That to utter and publish a bank bill, is to declare or assert directly or indirectly, by words or actions, that the note is good; but that a note is not passed until it is received by the person to whom it is offered. It is not decided in this case whether the note would be passed, if the person to whom it is offered, receives it for the purpose of having it examined. — 3. That the publishing of a counterfeit note of the bank of North America, is not an offence punishable under the act of April 22, 1794. (3 Smith's Laws, 189;) but it is punishable at hard labour under the acts of April 5, 1790, (2 Smith's Laws, 531,) and April 4, 1807, (4 Smith's Laws, 393). There is no doubt that this offence might have been punished by setting in the pillory, by virtue of the acts before mentioned, and therefore, that it is within them. — 4. That in an indictment for pub- lishing a counterfeit bank note, it is not necessary to set forth the ornamental parts of the bill, the devices or mottos. The court expressed their concurrence with both the cases de- cided in Massachusetts. Commonwealth v. Bailey, 1 Mass. Rep. 62, — and Commonwealth v. Stevens, 1 Mass. Rep. 203, where it was ruled to be unnecessary to set forth the devices and ornamental parts of a bill. South Carolina. — The forging of a general indent of this State, is not made a capital offence by the act of Assembly, which authorizes the issuing of the same ; but the forging a receipt on such indent for the accruing annual interest, which appears to be payable upon the face of it, with intent to give the indent currency, and uttering the same with intent to defraud, is felony without benefit of clergy, under the statute of 2 Geo. 2, c. 25, which is of force in this State. The State v. Washington, 1 Bay's Rep. 120. An indictment stating an offence to be against the State, and concluding with the words, " against the peace and dignity of the same," is good within the terms of the constitution of 1790. Ibid. The last of these points was considered of no weight by the court. With respect to the first it was argued that the receipt charged in the indictment was not such as came within CHAP. XXXII.] OP FORQERT. 318 years ago were spoken of as so multiplied as almost to have become general Y(A These statutes, which for the most part, made the forgeries, to which they related, capital offences, were consolidated by the 1 Wm. 4, c. 66. At present it will be attempted briefly to review the doctrine of forgery at common law, together with such principles and decided points as (though some of them may have arisen in prosecutions upon particular statutes) appear to be of general application. And, pursuing the order of the definitions above given, we may consider, I. Of the makintj or allemtion of a written instrument necessary to constitute forgery ; II. Of the written instruments in respect of which forgery may be com- mitted; and III. Of the fraud and deceit to the prejudice of another's right. We may then briefly treat, IV. Of jrrincipah and accessories ; and, V. Of the indictment, trial, evidence and imnishmcnt. In the first place, however, it should be observed that the ofi"ence of A puUica- forgery may be complete, though there be no publication or uttering of [J^^^jj^"" "^ " the forged instrument. For the very making with a fraudulent inten- the forged tiou, and without lawful authority, of any instrument which, at com- instrument {d) 4 Bla. Com. 248. the act of Murch ,5, 17:JG, made for putting: in force part of the statutes of 2 nnd 3 G. 2. The form of the receipt set forth in the different counts was as follows. "Received 14th Oct. 178."), two year.s interest on 8G/. 2s. 4f/., the within indent — Thos. Reynolds. — 86/. 'la. 4(L'' The clause of the .'statute on which the indictment was founded, is not recited in the re])ort of the case ; but it is supposed to be in these words, " any ac(iuittance or receipt for money or goods." See 1 Brevard's Dig. 3G8, Tit. 82, where the statute of 2 Geo. 2, c. 25, may be found. It was contended that if counterfeiting the indent was not felony, counterfeiting the receipts upon the back of it, could not be felony. To this it was answered by the court, that it is of no conse(|iuMHe on what the receipts were written ; whether on the back of an indent, or on any other i>aper. If the receipt was for money, and was forged with intent to defraud, that is sufficient to constitute felony. I/jid. Forging a bill of the paper medium of this State, with two of the commissioners' names only to it, does not constitute a capital offence, under the act of Assembly giving currency to such bills, which requires that such bills shall be signed by three commissioners. It is evident that any bills not signed by three commissioners, as the law directs, but signed by only one or two of them, would not be receivable at the treasury, because they are not such as the act requires and makes receivable there. And although there is no negative clause, Avhich makes such bills void, yet they would have been void in law — for "cxprcs^io uniiis est czdusio allerinx." It docs not purport to be a true bill upon the face of it. (Anne Lewi.s's case, Fost. IIG.) Moffat's case, 1 Leach, C. C. 372, is directly iu point. Per Bay, J., in the State V. Jones, 1 Bay's Rep. 207, 209. If a special verdict states the passing of a forged note, knowing of the forgery, it is suffi- cient to warrant a judgment on the conviction, though such finding does not express that it was done with a fraudulent intention. For the fraudulent intention springs out of the know- ledge of the forgery, as a natural consequence. The law will presume in odium fraudis, that it was done with a fraudulent intention. State v. Fuller, 1 Bay's Rep. 245. The following aufiiorities were cited in support of this decision. 12 Mod. G27. 2 Strange, 844, 5. 1 Leach, 204, Donally's case; and 5 Rep. 97. Forging an order for the delivery of goods, is felony within the meaning of the statute, thougli the parly making the supposed order, has no goods in the hands of the drawer. It is of no consequence what the form or the tenor of the order may be, if it be false, and cal- culated to deceive and defraud : such an order is both within the mischief and the words of the statute. West's case, tried at Charleston, iu 1785, settled the doctrine in this state. State V. Holly, 2 Bay's Rep 2C2, 2GG. See ante, the case of the Commonwealth v. Fisher, 17 Mass. Rep. 4G, where the same jjoint was decided. If an indictment states the offence to be against a British act of Parliament, made of force here, wiicn in fact no such act has ever been made of force, instead of concluding against the act of the legislature of the State, it is good ground to arrest the judgement. The State V. Holly, 2 Bay's Rep. 1G2. [The State Courts have jurisdiction to punish the uttering and publishing counterfeit bills of the Bank of the United States, ag well as of all other counterfeits of the currency of the State. State v. Tutt, 2 Bailey, 44.] 318 OF FORGERY. — OF THE NECESSARY [BOOK IV. isuotnocos-mon law, or by statute, is the subject of forgery, is of itself a sufficient sarytocom- j^j^j^j^ of the offciice bcforc publicatiou: and though the publica- pleto tut) "^ 1 ^ 1 1 • 1 1 • • n .)ffenco of tioa of the instrument be the medium by which the intent is usually forgery. juadc manifest, yet it may be proved as plainly by other evidence. (e) *319 Thus, in a case where the note which the ^prisoner was charged with having forged, was never published, but was found in his possession at the time he was apprehended, no objection was taken to the conviction, on the ground of the note never having been published, there being in the case circumstances sufficient to warrant the jury in finding afraudu- Icut intention. (/) At the present time most of the statutes which re- late to forgery make the publication of the forged instrument, with knowledge of the fact, a substantive oflfence. SECT. I. 0/ the Malcing or Alteration fo a Written Instrument necessary to constitute Forgery. Of the Not only the fabrication and false making of the whole of a written ™lt^''\fon^ instrument, but a fraudulent insertion, alteration, or erasure, even of a of a writen letter, in any material part of a true instrument, whereby a new opera- instrument tion is given to it, will amount to forgery; and this, although it be to consti- afterwards executed by another person ignorant of the deceit. ((/) And tute for- the fraudulent application of a true signature to a false instrument, for ''^^^^' which it was not intended, or vice versd, will also be forgery, (/i) Thus it is forgery in a man who is ordered to draw a will for a sick person, to insert legacies in it of his own head.(i) So if a man insert in an indictment the names of those against whom, in truth, it was not found ;(/.:) or, if finding another name at the bottom of a letter, at a considerable distance from the other writing, he caused the letter to be cut off, and a general release to be written above the name, and then take off the seal, and fix it under the release. (?) And in a late case it appears to have been considered that if a party make a copy of a receipt, add to such copy material words, not in the original, and then offer it in evidence on a suggestion of the original being lost, he may be prose- cuted for forgery. (??i.) The fraudulent alteration of a material part of a deed is forgery ; as the making a lease of the manor of Dale appear to be a lease of the manor of Sale, by changing the letter D into an S ; or the making a bond for five hundred pounds, expressed in figures, seem (f) 2 East, P. C. c. 19, s. 4, p. 855. (/) Elliott's case, 1117, 1 Leach, 175. 2 East, P. C. c. 19, s. 44, p. 951. 2 New R. 93, note (a). And see also Crocker's case, Russ. & Ry. 91. 2 Leach, 987, where it appears to have been holdcn by Le Blanc, J., that though the note there in question had been kept in the prisoner's possession, and never attempted to be uttered by him, yet it was a question for the jury under all the circumstances of the case, whether the note had been made inno- cently or with an intent to defraud. (g) 2 East, P. C. c. 19, s. 4, p. 855. (h) Id. ibid. {*■) Noy, 101. Moar, 759, 7G0. 3 Inst. 170. 1 Hawk. P. C. c. 70, s. 2. Rac. Ab. For- gmi (A). {k) Rex V. Marsh and others, 3 Mod. 66. 1 Hawk. P. C. c. 70, s. 2. (I) 3 Inst. 171. 1 Hawk. P. C. c. 70, s. 2. Bac. Ab. Forgery (A). \in) By Lord Ellenborough, Cor. in Upfoln v. Leit, 5 Esp. 100. "The words inserted were " in full of all demands." CHAP. XXXII. § I.] MAKING, ALTERATION, ETC. 319 to have been made for five thousand :(«) and though it seems to have been thought that a deed, so altered, is luore i)roj)erly to be called a false than a forged deed, not being forged in the name of another, nor his *seal nor hand counterfeited ;(c) yet, according to the better opinion, *320 such an alteration amounts to forgery; on the ground that the fraud and villany are the same, as if there were an entire making of a new deed in another's name ; and also that a man's hand and seal arc falsely made use of to testify his assent to an instrument, which, after such an alter- ation, is no more his deed tlian a stranger's. (/>] Altering the date of a bill of exchange after acceptance, and thereby accelerating the time of payment, would come within the same rule.((/) So altering a bill payable at three months, into a bill payable at twelve months is for- gery. (/•) And, upon the principle that the false making of any part of a genuine note, which may give it a greater currency, is forgery ; it was holden, in a modern case, that where a note of a country banker's was made payable at their house in the country, or at their banker's in Lon- don, and the London banker had failed, it was forgery to alter the name of such London banker to the name of another London banker, with whom the country bankers had made their notes payable subsequent to the failure. The judges held that the act done by the prisoner was a false making, in a circumstance material to the value of the note, and its facility of transfer, by making it payable at a solvent instead of an insolvent house. (.s) And upon the general principle that the alteration of a true instrument makes it, when altered, a forgery of the whole in- strument, it was holden that whore the indictment charged the prisoner with " making, forging, and counterfeiting" a bill of exchange, and with uttering it, knowing it to be forged; and the evidence was of an alteration of the bill of exchange from 10^. to 50/. in the part of it in which the sum is expressed in figures, and also in the part in which it is expressed in letters, the prisoner was properly convicted ; though the statute, on which the indictment proceeded, 7 Geo. 2, c. 22, contained the word alter, as well as the word /or. though iiiudoiu the There was a second count for uttering the same, knowing it to be l""'"^'"*"''^ ° ' o " -" "^"^ own name forged. The following facts appeared in evidence : the prisoner. Brown, uttered the note to one Hulls, a shoemaker, in part payment for a quantity of boots and shoes which he had bought, under a pretence that he was a Captain BroAvu of the 17th regiment, and going immediately to the West Indies. At the time when he bargained for the articles at Hulls' shop, he told Hulls that if he would send his boy with him ho would send back the money : but Hulls declined this, and went himself with the prisoner. AVhile on their way, Brown said that his brother was agent to the 17th regiment, and would buy all the shoes Hulls had: and upon their coming to a public house, he invited Hulls to go in, saying, he should see his brother presently. They then sat down together, on a bench in the garden of the public house ; and Brown proceeded to speak further of his brother, who, he said, had just married a lady with a fortune of 15,000/., and had deposited it in the hands of Down and Thornton. After some time, the brother not appearing, Brown went into the house, and returned again, using expressions of disappointment at the absence of his brother, and added : "I am sorry I cannot pay you in gold ; but I can give you what is just as good, one of my brother's drafts, for which I have been in the house to get cash, but the landlord has not enough by him." He then produced the note in question, and gave it to Hulls, who asked if it was on the money lodged with Down and Co.'s, Brown said that it was ; and added that his brother and he always paid in that manner on demand, for they wanted no credit. He then appointed Hulls to meet him in the afternoon, at another place, where he would pay him the balance. The note was soon discovered to be a forgery, and Hulls could hear nothing more of Brown. It further appeared that Parkcs and Brown were connected together ; and that when Parkcs was taken up, more than forty of these five-guinea notes, in blank, were found upon him, dated Einghton, Salop ; and a few of the same sort of notes were also found concealed under a board in a shop where the prisoner Brown was arrested, and which it was probabh he had thrust there. The note in question was proved to be filled up in the handwriting of Parkes; and the name Thomas Brown was also in the handwriting of Parkes. In Parkes's pocket-book was found a receipt under a cover, addressed to Thomas Brown, at the Compter, *(the prison to which Brown had been committed,) for 21/., for four five- ♦32,") guinea bills. It was also proved that Down and Co. had no such custo- mer as Thomas Brown, of Ringhton, in Shropshire ; and there was no evidence that the prisoner Brown had any residende or connection at that place. Upon this evidence the jury found both the prisoners guilty ; (ff) The words " I promise to pay the bearer on demand," and also the words " the sum of five guineas, for value received for Self & Co.," were printed in the note. 325 OF FORGERY. — OF THE NECESSARY [bOOK IV. and stated that they thought Parkes signed the note in question with Brown's assent, and that Brown uttered it under a representation that it was his brother's, knowing that it was not so, with intent to defraud Hulls. The following objections to the conviction were then taken by the counsel for the prisoner : first, that the name Thomas Brown was the real name of one of the prisoners ; secondly, that it was no forgery in Parkes to sign the name of Thomas Brown, with his consent; thirdly, that if Parkes were not guilty of forgery. Brown could not be guilty of uttering the note knowing it to be forged ', and, fourthly, that the sub- sequent misrepresentation of Brown ought not to affect Parkes, as there was no evidence that he was aware of the fraudulent circumstances under which Brown would utter the note : the principle being, that mis- representations do not amount to forgery, or make ihat a foi'gery which was not so at the time of the original making. These points were sub- mitted to the consideration of the twelve judges, who held the convic- tion wrong as to Parkes, on a ground irrelevant to the subject now under consideration ; but all of them held the conviction right as to Brown ; and Grose, J., afterwards delivered their opinion. He observed, " as to the first objection, that the definition of forgery was, ' the false making a note, or other instrument, with intent to defraud j'(7i) which luio-ht be done either by using the name of one who did not exist, or of one who did exist, without his consent. That this was of the former description ; being uttered by the prisoner as the note of his brother, no such person as his brother of that name appearing to exist : and that the circumstance of its being made in the same name as his own could not make any difference; being uttered as the note of another, and not his own. The same answer applied to the second objection. As no such person existed to whom the name of Thomas Brown, as the signer of ike note, applied, there could be no consent given to sign the name. It was signed by the authority of a Thomas Brown, but not of the Tho- mas Brown, for whose note it purported to be given. For the person in whose name the note was made, was, according to the description of him in the note, then a resident at Ringhton, in Salop and it imported that he was a correspondent of Down, Thornton and Co. and had money in their hands ; and he was also represented to be the brother of the prisoner ; but no such person of that name and description appeared to exist. And all this was proved and found to be done for the purpose of fraud. Thirdly, that the indictment did not charge that Brown uttered the note knowing it to have been forged hy Parkes, but only knowing it to have been forged; and, therefore, let it have been forged by whomsoever it might, it was equally an offence in Brown to utter it."(t) *326 *The foregoing case has been observed upon by a learned writer. Doubt who says that, though supported by the highest authority, it has always ^"^°^th appeared to him to rest upon very questionable principles. (/) And he preceding cites a casc, where upon the facts that a bill made by the prisoner, D. case. Walker, (who was a pauper at Manchester) was dated Liverpool, signed D.Walker and Co., and drawn on Devaynes and Co., London; and that similar bills had been before drawn in the same manner, and being pro- (h) Ante, p. 318. ■ (i) Rex V. Parkes and Brown, 1796, ll9l. 2 Leach, 115. 2 East, P. 0. C. 19, g. 49, p. 963. Brown accordingly received sentence of death but was not executed. 2 Leach, 788. (j) 6 Ev. Col. Stat. Pt. V. CI. xii., p. 580. CHAP. XXXII. § I.] MAKING, ALTERATION, ETC. 326 videcl for before due, had been regularly paid, although the drawer was unknown to the house ; the case in question was cited as an authority; but the learned judge ruled that the evidence was not sufficient to go to the jury.(/L) And, in discussing the effect of a false representation, he refers to the following case, where the prisoner assumed to be the real indorser of a bill : yet, as there was no false making, it was holdcn not to be forgery ; though the act was done in concert with the real indorser, and for the purpose of fraud. (/) The prisoner, John Ilevey, was indicted for forging an indorsement Hevej's on the back of a bill of eschage, in the name of Bernard M'Carty, with '^'^^°' "^^^ intent to defraud AVm. Masters and Edward Beauchamp, A:c.; and the sissumed to indictment contained a second count for uttering and publishing a forged l'**^''® ""^aj. indorsement in the name of Bernard M'Carty, with the like intention, a bill; but The bill of exchange in question was in the following form : — "•'' '•'crf' wiis no false making, it "No. 59. £30. was holden nut to bo "Bath Bank, Nov. 19, 1781. j?^:;^,^^' "Thirty-one days after sight, pay Mr. Bernard M'Carty, or order, thoTigh the thirty pounds value received, for Smith, Moore and Co. '^^^ ^'?* •' * ' ' T /-I done in " JeR. CoNNELL. c-uncort " To Rich. Beatty and Co. '' aUmior " No. 19, Great St. Helen's, London." ser and for the purpose It appeared in evidence, that the prisoner came to the shop of Beau- ^ '^'^"^^ * champ and Masters, who were pawnbrokers, to buy a watch, and offered them the bill in question, with the indorsement then written on it ; that they hesitated about taking it, upon which he told them it was a good bill, that his name was Bernard M'Carty, that he had indorsed it, and that Beatty and Co., by whom the bill purported to be accepted, were agents to the Bath Bank. The pawnbrokers were not satisfied, and sent their servant to St. Helen's, to inquire about the acceptance ; but upon his returning and saying that he had seen a person at St. Helen's, who said the acceptance was good, they let the prisoner have the watch, and gave him the difference of the bill. It was then proved that the prisoner had procured the plate to be engraved some time before, containing the form of the bill in question, and had printed several hundred copies ; that he had always been known by the name of John Hevey ; and that no such person as Smith, Moore, and Co. could be found in Bath, though there were such names put on the door of *a house from whence the *327 person who had been there had run away. It was proved also, that the names of Beatty and Co. were on a counting-house door in Great St. Helen's, where a man by the name of Beatty, who said he was a clerk, had lived J but was since taken up and lodged in prison. And it further appeared, that there was such a man as Bernard M'Carty, and that the indorsement was in fact of his handwriting. Upon this evidence, the jury, under the direction of the learned judge who tried the prisoner, found a verdict of guilty, and found specially that there was such a per- son existing as Bernard M'Carty, and that the indorsement was of his handwriting ; that the prisoner was not that person, but had passed him- self upon the prosecutors as such at the time he tendered the bill in pay- (k) Walker's case, cor. Charabre, J., Lancaster, about the year 1807. Id. ibid. (l) This appe.irs to have been a false pretence within the statute 30 Geo. 2, c. 24. And see now 7 & 8 Geo. 4, c. 29, s. 53. Ante, p. 28G. Vol. II.— 22 327 OF THE FORGERY, — OF THE MAKING, ETC., [bOOK IV. ment. The case was afterwards submitted to the consideration of the twelve judges, who were all of opinion that it did not amount to forgery, for there was no false indorsement, the jury having found that the in- dorsement was truly made by a real person whose name it purported to bc.(m) Webb's And in a more recent case, it was holden by a majority of the judges, Fab'e do- ^P^^ ^ case reserved, that the adopting a false description and addition, seription of where a false name was not assumed, and where there was no person the accept- answering the description or addition, was not a forgery. The bill of a false exchange upon which the indictment proceeded, was addressed to Mr. name, hold Thomas Bowden, baize manufacturer, Romford, Essex ; and drawn by not to bo , . • 1 • T 111- 1 forgery. ^'^^ prisoner in his own name. It was proved that the prisoner uttered this bill with an cxceptancc thereon in the handwriting of Thomas Bow- den, whom the prisoner had known for many years, but who never had carried on the business of a baize manufacturer at Romford, nor ever resided there. The bill was accepted by Bowden, payable at No. 40, Castle-street, Holborn; and the person who lived at that house, and who knew Bowden, and was well acquainted with his handwriting, stated that he was surprised at Bowden's accepting the bill, payable at his house, as he did not reside there, and had no authority from the witness to make any bills payable at that house. The learned judge left it to the jury in the first place to consider whether there was any such person as Thomas Bowden; and, if there was, whether the acceptance was his, and that if there was no such person, or the acceptance was not his, ami the prisoner at the time he offered the bill to the prosecutors knew eitlu r that there was no such person, or if there was, that he had not acccpt( d it, they should find him guilty. He also gave them other directions, biii. the jury found that there was no such person as Thomas Bowden, and the prisoner was convicted. The learned judge, however, being of opin- ion, from the evidence, that there was such a person and that the accep- tance was his handwriting, reserved the case for the opinion of the judges, on the point, whether assuming that the acceptance was the handwri- ting of Bowden, the prisoner, by the giving on the face of the bill a false description of Bowden, and uttering the bill after it was accepted by Bowden, with this false description, with intent to defraud, brought himself within any of the counts of the indictment, which charged a 3-8 forgery of the bill, and on uttering and publishing the *forged bill, and also a forging of the acceptance, and the uttering and publishing such forged acceptance. And a majority of the judges held the conviction wrong.(«) Watts' A bill was addressed to Messrs. Williams and Co., bankers, Birchin- lane, London ; and it appeared that possibly the figure 3, on the lower left-hand corner of the bill, might have been inserted originally as part of the address, but the evidence left that matter in doubt. The prisoner was asked at the time when he was drawing the bill, whether the ac- ceptors were "Williams, Birch and Co., and his answers imported that they were. Williams, Birch and Co., lived at No. 20, Birchin-lane; and it was proved not to have been their acceptance. There were no known bankers in London using the style of Williams and Co. except Williams, Birch and Co.; but at No. 3, Birchin-lane, the name << Wil- (m) Hevey's cor. Ashhurst, J., 0. B. 1782, and considered by the judges in Hil. T. IVS'.'. 1 Leach 229. 2 East, P. C. c. 19, s. 5, p. 856. (7?) Rex V. Webb, Russ. & Ry. 405. CHAP. XXXII. § I.] AND OF THE NAME USED. 328 liams and Co," was on the door ; and some bills addressed to Messrs. Williams and Co., bankers, Swansea, bad been accepted, payable at No. 3, and bad been paid there. There was no evidence as to the person who lived at No. 3 ; but another bill, of the same tenor as that in ques- tion, drawn by the prisoner, had been accepted there. It was holden upon these facts, that the prisoner was improperly conTicted of uttering a forged acceptance, knowing it to be forged. (c>) The cases in which a party committiDg forgery has used a name dif- Cases in fcreut from his own, consist either of those in which the name used has " ^.'^^^ ^^^ been of a real existing person, or those in which the name used has been mitting of a person non-existing and fictitious. ffrgery bafi ,,f,,,., p- ., used a name It is said to bo clearly settled, that in the case ot forgery committed diiTeront in the name of a person really existing, it matters not, whether the '"'■"'" '''^ offender pass himself off upon the parlies at the time for such person, and A.-siiming receive credit from them as such, the credit in such case not being given ti>«-" name to the impostor personally without any relation to another, but to that r^.a*|J'c""" other person whom he represents himself to bc.(j)) isting. The prisoner, Elizabeth Dunn, was indicted for forging the following Dunn's promissory note, with intent to defraud Edward Hooper. ^y^^- notu " London, 27th July, 17G5. ^^'"1'^''^ ^^ " I promise to pay to Mr. Edward Hooper, the sum of three (the though viord jyounds hcing omitted) thirteen shillings and sixpence, or order, madu by seven days after date, value received by me, j^, an"a3'-"*^'^ " her sunifd « Mary >^ Wallace. ^^^ «">' •> "^ character, « Witness John Whatlal." "mark. washer own note The facts were, that in June, 17G5, the prisoner applied to Hooper, offored as at his office for receiving seamen's wages, calling herself Mary Wallace, her own and desired him to advance her money to pay the fees for the probate ^^^ ^ou-^'tA of her husband's will, which was in the hands of a proctor. She returned another in soon after with the probate of the will of John Wallace, therein de- (i"J]!j'i"^'*i^, scribed to be a seaman on board the Epreuve; when Hooper required herself, the her to produce a certificate, to *show that she was the Mary Wallace "ff^-nco wa.- named in the will. A few days afterwards she brought a certificate, *o-J and pressed Hooper to lend her money on the credit of the wages due jiol^len to to J. Wallace, when he let her have three guineas and a half, and wrote the body of the promissory note in question, to which she subscribed her mark, after which his clerk attested it. She was then asked what name he was to put to her mark, to which she answered, "You know ray name, you may write ^lary Wallace," which he did. It was proved clearly that her name was Elizabeth Dunn, and that the whole account was a fabrication. Upon this evidence the jury were directed to find the prisoner guilty, if they believed that she subscribed the note pro- duced in a false name, either by a mark intended by her to express such false name, or by words at length, with intent to defraud Hooper, and the jury accordingly found her guilty. Judgment was then respited upi)n a doubt, whether as the note, though made by the prisoner in an assumed name and character, was her uwn note, made and offered as her own, and no as the note of aiMtlxr in contradistinction to hcrsel', tie o^^'encj amounted to forgery. But up:>i the case I eing submitted (o) Re.^ I'. Watts, Russ. & Ry. 436. (p) 2 East, P. C. c. 19, 8. 49, p. •JCI. 329 OF FORGERY. — OF THE MAKING, ETC., [bOOK IV. to the consideration of the judges, nine of them were of opinion that the prisoner was properly convicted. ( own name, (( One month after date please to pay to my order, the sum of twenty tents o/theP°^^^^' value received, as per advice from J^iii'Such "Thomas Harper." bill being m ht -r /-. indorsed in " To Mr. JoSEPH CUFF, blank, if it No. 125, Whitechapel, be done t i >> fraudulent- London." ly and to tect^ion '^^' f^^o^io^'^ly ^'^1 make, forge, and counterfeit a receipt and acquittance, althoughnofor the Said sum of twenty pounds, as followeth, " Reed., W. Wilson;" additional ^j^jj intention to defraud the said Joseph Cuff. A second count stated thereby an uttering with the like intention; and the third and fourth counts gained to -were for forging and uttering it with intent to defraud John Briggs and ner.^"^ ' Henry Sutton. The facts were, that the bill was indorsed in blank, and delivered to Sutton, out of whose possession the prisoner obtained it by (d) Taft's case, 1777, 1 Leach, 172. 2 East, P. C. c. 19. s. 47, p. 959. Thejudges also referred to the case of Rex /'. Lockett, (a7ite, p. 333,) as having decided that the forging a name either of a real or of a fictitious person, with intent to defraud, was forgery. CHAP. XXXII. § I.] AND OF THE NAME USED. 334 souie uudue means, (which did not appear,) and presented it for pay- ment when it wanted two or three days of becoming due; that he offered to give a trifle to adjust the difference, and accordingly gave the drawee, Cuff, a shilling for the discount; that Cuff then desired him to write a receipt on the back of the bill, which he did, by writing the receipt in question, in the fictitious name of Wilson. Upon this evi- dence, it was submitted to the court that this was not a receipt for money within the meaning of the statute, for that it was essential to the commission of forgery that the act should be done in the name of an- other; but that, in the present case, for anything that had appeared to the contrary, there never was such a person existing as the << William Wilson," whose name was supposed to have been forged. It was also submitted, that the name " William Wilson" could not have been used with an Intcntiun to dc/raiid, because no receipt at all was necessary, nor was the prisoner compellable to give a receipt, and he might as well have procured payment of the bill by writing the receipt in the name of ''John Taylor," as in the name of "William Wilson;" the possession of the bill being a sufficient discharge to the drawee. That, therefore, as the discharge to the drawee was not in any way strength- ened *by the receipt the prisoner had given, the use of the fictitious *335 name, which was not necessary to the accomplishment of any fraud, was of no effect. And it was further urged, that the prisoner gained no additional credit by the name he assumed ; and that what he had writ- ten was a mere memorandum, and did not operate as an acquittance against any person but the man himself who received the money, and who would be equally estopped by it as if he had written his own name. But the objections were overruled by the court, upon the ground that, as this was a false receijtf, the case was clearly within the statute on which the indictment proceeded. And, after observing that the pri- soner knew he had obtained the bill fraudulently; that the better to elude inquiry after him it was necessary to conceal his name ; and that his object was to defraud the real owner of the bill of its value; they held that if he intended to defraud anybody by the fictitious signature, it was sufficient to constitute forgery. The jury having found the pri- soner guilty, the judgment was respited, and the case referred to the consideration of the twelve judges ; eleven of whom were of opinion that, though the prisoner did not gain any additional credit by signing the name <' W. Wilson" to the receipt, as the bill was not by the indorse- ment made payable to the person whose name was used, yet still it was a forgery ; for it was done with intent to defraud the true owner of the bill, and to prevent the person receiving the money from being so readily traced, (c) The following proposition is stated as having been the subject of much difference of opinion : — <'That if a person give a note or other se- curity, as his own note or security, and the credit thereupon be personal to himself, without any relation to another, his signing such a note with a fictitious name may be a cheat, but will not amount to forgery ; for, in such a case, it is really the instrument of the party whose act it pur- ports to be, and the ci'cditor had no other security in view."(/) (e) Taylor's case, 0. B., October, 1T79, and M. T. 1110. 1 Leach, 214. 2 East, P. C. c. 19, s. 4fi, p. 960. Biiller, J., doubted. (/) Oneof the principles laid down in Dunn's case, 1705. 2 East, P.C., c. 19,s. 48, p. 9C1. Ante, p. 329, et scq. 335 OF FORGERY. — OF THE MAKING, ETC., [bOOK IV. Shcppard's In onc case, where the credit wag without doubt given personally to enTo'bo for '^^ prisoner, the security tendered being considered as his alone, the },'ery to judgcs agreed unanimously that the offence amounted to a forgery, draw a draft rpjjg prisoner was indicted for uttering the following order for payment banker in a of money, knowing it to be forged, with intention to defraud James fictitious Elliot, (a) namo, as- ^ ' Humod bj- tho party at « Grecn-strect, 31st July, 1781. f ho purpose " Sirs, — Pray pay to Mr. John Atkins, or bearer, Six Pounds, Six of fraud, Shillings ; value received. avoid de- xours, OCC. tection, " H. Turner." though the uTo Messrs. Brown, Collinson, and Co., Lombard-Street." credit were ' ' ' given to the person of The following facts appeared in evidence. The prosecutor was a ""^.-.V, '^'silversmith; and the prisoner, having looked out several goods at *hi3 ^■^ shop, to the amount of six guineas, pulled out his purse, as if going to pay for them, saying, " I believe I have not cash enough about me, but here is a draft on a banker, which is the same thing as money, for it will be paid when presented." He accordingly laid the draft on the counter, and desired to see some silver spurs; but the prosecutor not having any of the kind which he described, the prisoner said that he must send him a pair. Mr. Elliott looked at the draft as it lay on the counter; and seeing it was upon a house he knew, he took it, the sum being a small one, and the prisoner having a genteel appearance : and he then took his order-book, for the purpose of making a memorandum of the prisoner's direction ; and supposing his name to be the same as that in which the draft, which he conceived to be the prisoner's, was signed, he wrote, " H. Turner, Esq." The prisoner looked over him, and desired him to add " Junior, Noah's Row, Hampton Court," and then went away. Mr. Elliot further stated, that he gave credit to the prisoner, and not to the draft. It appeared that no person of the name of H. Turner, kept cash at Brown and Collinson's, or lived in G-reen- street; nor could such a place as Noah's Row, or such a person as H. Turner, jun., be found at Hampton Court. Upon these facts the jury found the prisoner guilty, and he received judgment of death ; but the execution of the sentence was respited on a doubt, whether, as Mr. Elliot had sworn that he gave credit to the prisoner, and not to the draft, it could amount to the crime of forgery. The twelve judges were unanimously of opinion that the conviction was right ; for it was a false instrument, not drawn by any such person as it purported to be, and the using the fictitious name was only for the purpose of deceiv- ing. (Ajf But the following case, which occurred only a few years afterwards, ij) In the report of the case in 2 East, P. 0. c. 19, s. 50, p. 967, it is stated that the pri- soner was indicted for forging the order. Probably there were counts for forging, and for uttering the order, knowing it to be so forged. [h) Shcppard's case, 0. B. Sept. 1781, Mich. T. 1781. 1 Leach, 226. 2 East, P. C. c. 19, p. 50, p. 967, where it is said that Taylor's case, [ante, 335,) Lockett's case, [atiie, 333,) and Dunn's case, [ante, 329,) were relied on. f {Coal, consigned to G. P. of New York, arrived, and was claimed by another of the name of G. P., who resided there, and he, knowing this, obtained an advance of money, on endorsing the permit for the delivery of the coal, with his own proper name. This was held to be forgery. 6 Cowen, 72, People v. Peacock.} CHAP. XXXII. § I.] AND OF THE NAME. 336 is mentioned as one in which the judges were much divided in opinion, though not easily to be distinguished in principle from that which has been just cited. The prisoner, J. II. Aickles, was indicted for forging a promissory Aicklcs's note, iu the following form with intent to defraud one II. II. Gedge. *""""'• ^\ ,,,.., • 1 aiiponrs to A second count charged him with uttering such note, knowing it to be imvo been forged. .luubtod ''London, Dec. 18, 17SG. •*vht-ro the " Three months after date I promise to pay to II. Byron, Esq., or or- l^l'^*^"*^' der, 25^. 10s. Od. value received." iiumc was "25^. 10s. 0 1i wliich was not his name, nor had ever been used by him beiore, but caso amounted always Aicklcs, with intent to defraud Gedge. He, therefore, made the orgeiy. ^^^^ j^ ^j^^ name of another, as if his own, and clearly with an intent to defraud. Whether there existed a person of that name or not was im- material ; the felony consisted in the intent to defraud under the falsity. One might assume a feigned name, and make a draft in it, and yet in- nocently ; as if he concealed himself to avoid arrest, and had appointed his friend on whom he drew to pay his bills; or, giving notes, took care to pay them when due. But the prisoner having no such intention, but, on the contrary, to defraud the party, by making the note under such disguised name, by which, after he left the place of concealment, he *838 could not be traced ; the case amounted to forgery. *There was no ground, he thought, to distinguish this from the common case where the draft is made in the name of a person who does not exist. It was in reality a deeper fraud, because the entity of such drawer would at once be disavowed at the place of his supposed residence; whereas, in the present case of a note, there would be circumstances to find out the maker when he quitted the place where he made the note. Reasons The judges who inclined against the conviction, went on the doubt against tho ^|jgj.jjgj, ^^ constitute forgerv, it was not necessary that the instrument conviction. , , , , , in i /v t ^ -i n • ■ c should be made as the act oi another,(/i;) according to the dcnnition or Lord Coke, whether that other existed or not. Whereas, here the note was made as the prisoner's own, and avowed by him to be so. The credit was given to the person, and not to the name; and the person, and not the name, was the material thing to be considered. (^) Sir E. H. East enters at some length into the discussion of this point; and endeavours to ascertain the grounds upon which the judges, who inclined against the conviction, might possibly have proceeded. But he again repeats, that it seems very difficult to distinguish the case from that of Sheppard : and he says that he cannot help suspecting that much of the diificulty in these cases arises from mistaking matters of fact for matters of law, and confounding the two together, ('m) A learned writer, who has been several times referred to in the latter part of this work, observes, that it may be difficult to admit that the case involved any real ground of doubt when the specific frudulent intention was expressly found, and the taking the house was only a part of the machinery of the fraud; and, with respect to Sir E. H. East's suggestion that the diffi- culty may have arisen from mistaking matters of fact for matters of law, he further observes that this seems to be the true view of the case ; for, if the use of the assumed name is intended to commit a fraud in the particular instance, there is no reason for not treating it as a forgery, {j) Aickles's case, ITSY, 1 Leach, 438. 2 East, P. C. c. 19, s. 50, p. 968. The prisoner was remanded upon a former sentence ; having, previously to the present charge, been tried for returning from transportation, and acquitted. (/c) See Lewis's case, ante, p. 332, note (y). {I) 2 East, P. C. c. 19, s. 50, p. 970. \,n) 2 East, P. C. c. 19, s. 50, p. 970. CHAP. XXXII. § I.] AND OP THE NAME. 338 although that may only be part of a more geueral system of fraud, which such arfsumptiou is intended to carry into effect.(?j) In a more modern case, where the iudietment charged the prisoner, M'hiloy's Samuel Whiloy, with forging a bill of exchange for GO/, dated Bath, '='^'"- „*^""- Jan. 5th, 1805, drawn iu the name of Samuel Milward, payable to his for-ory to own order on Messrs. Stephenson & Co., bankers, in London, with in-'"-' '"'«''' ^ . . . whcro tho tention to defraud 11. Thurston ; and (in a second count) with uttering ,„i„n) ,„aao Buch bill knowing it to be forged; the following facts appeared in evi-"*'" ^[^y deuce. The prosecutor was an upholsterer in IJath; and on the 27th i,j\i,y"'f^|.. Dec. 1804, the prisoner, being at that time a stranger to him, came god iiistru- to his house, and applied to take a coach-house and stable, which the '"rjul„b?ed prosecutor let him for three months. The prisoner then bespoke some liyhiiu with iioods of the prosecutor to the amount of IGL 2s., which he directed to'!"'" '"'.'^P' ° ....... ti<"i "I "le- be sent to him, writing his direction iu the prosecutor's book, " Samuel iViiu-ling ^lihvard. No. 12, Kensington-place, Bath." la the course of three '^•"' v^^^o- . cutur days the goods were sent, and the prisoner came shortly afterwards and thou''h the ordered more goods : and before all the goods were delivered, he told prLsonor's the prosecutor to get his *bill ready by four o'clock, on Old Christmas ^^t^yjj'^lfa^yo eve, at which time he would call for it. He called at the time appointed ; carried and the bill, amouutiuo; to 49/. 10s. was given to him. He said the bill "'"''' "■' _ ' _ o _ o . much credit was very right; that it was his rule to discharge all bills on Old Christ- as tho aa- mas eve ; and that he would return again in ten minutes ; which he did, sumed . . . . . naino. bringing with him the bill of exchange in question ; and saying that he *»qq would give the prosecutor a draft on his banker in London for GO/. The prosecutor looked at the bill of exchange, which was indorsed with the name '' Samuel Milward," and, upon the prisoner saying it was a good one, gave him the balance of ten guineas. The prisoner then told the prosecutor that he should want more goods, and that he should be a very good customer to him. The bill of exchange having been sent to the bankers, in London, was returned to the prosecutor on the 25th Jan., dishonoured, and the prosecutor went immediately to the prisoner's house, in Bath, but he found it shut up, and saw nothing more of the prisoner till about three weeks afterwards, when he was in custody. A clerk from the London bankers, Messrs. Stephenson & Co., proved that they knew no such person as Samuel Milward. And it was satisfactorily proved that the prisoner's real name was Samuel Whiley ; that he was baptized as the son of persons of that name, was married by that name, had gone by the same name at Bath, when he lodged there for about a week in the July preceding this transaction ; and at Bristol in the fol- lowing October ; as also at Bath again on the 4th of December ; and further, that on the 20th December (which was about a week before he first came to the prosecutor) he had taken a house in "Worcestershire, under the same name. But on the 28th of December (the day after his first application to the prosecutor) he ordered a brass plate to be en- graved with the name of '< Milward," which was fixed on the door of his house on the following day. The prisoner stated in his defence that he had understood from his father that he was christened by the name of Samuel Milward; and that, being under difficulties, and afraid of arrests, he had omitted the name of Whiley. In answer to questions put by the learned judge who tried the prisoner, the prosecutor stated that he took the draft on the credit of the prisoner, whom he did not know ; that he presumed the prisoner's name was that which he had written, (n) 6 Ev. Col. Stut. Part V. 01. sii., p. 580; and Hadficld's case is cited. See ante, p. 331. 339 OF FORGERY. — OF THE MAKING, ETC., [BOOK IV. and had no reason to suspect the contrary ; but that if the prisoner had come to him under the name of Samuel Whiley, he should have given him equal credit for the goods, and have taken the draft from him and paid him the balance as he had done when he came under the name of Milward. The learned judge left it to the jury to say whether the pri- soner had assumed the name of " Milward" in the purchase of the goods, and given the draft, with intention to defraud the prosecutor. And the jury saying, that they were satisfied of that fact, found the imsoner guilty. The case was afterwards submitted to the consideration of the twelve judges ; who were of opinion that the question of fraud being so left to the jury, and found by them, the conviction was right. (o) *340 In a case which occurred a few years afterwards, the prisoner was Francis's indictcd for forging an order for the payment of money, in which, *by tho name *^^ name of James Cooke, junior, he requested Messrs. Praed & Co., used by tho bankers in London, to pay Mrs. Ware, or bearer, fifteen pounds. It prisoner be appeared in evidence that on the 15th August, 1808, the prisoner took asgumcutor -i i , ° . , tho purpose lodgings at the house of Mrs. Ware, by the week, and continued there of fraud, ^m ^j^g g^jj Qf September following, on which day he gave Mrs. Ware avoid do- the Order in question for a bank note of fifteen pounds, which she ad- teetion, it vanced to him upon his applying to her for change. Mrs. Ware paid much a for- ^'^6 Order away to a neighbour, who took it to the banker's; and, upon gory as if payment being refused, brought it back to Mrs. Ware, who immediately ed^name^" ^^^formed the prisoner of its being returned. The prisoner, first read- were the ing over the order, said that he saw he had made a mistake, and had name of a forgotten to put the word " junior," which word he then added, and person 01 o i. v / * known said that Mrs. Ware would find it would be right. Shortly afterwards credit. the prisoner left the house, saying he should return to tea ; but he never did return. The order, with the addition, was presented at Messrs. Praed & Co.'s the next morning, and payment refused, the drawer not being known at that house, and no person of that name keeping cash there. It was satisfactorily proved that the prisoner's real name was John Francis, though he had occasionally gone by other assumed names. The case was left by the learned judge to the jury, with a direction that they should consider whether the prisoner had assumed the name of James Cooke, junior, with a fraudulent purpose : and they found a verdict of guilty : but upon some doubts occurring whether the facts in evidence went to establish a forgery, or only a fraud, the case was referred to the consideration of the twelve judges. Mansfield, C. J., the Chief Baron, Grose, J., and Lawrence, J., were absent when the case was debated; but the judges, who were present, held the conviction right ; and were of opinion that if the name were assumed for the purpose of the fraud, and avoiding detection, it was as much a forgery as if the name assumed were that of any other person of known credit; though the case would have been different if the party had habitually used and become known by another name than his The ficti- own.(p) But it seems that it must satisfactorily appear that the ficti- inust be™^ *^°"^ name was assumed for the purpose of fraud, in the particular in- assumed for stance of the forgery in question, and that it will not be sufficient to show the purpose ^^^ ^q fictitious name had been assumed for general purposes of con- (o) Whilcy's case, cor. Thomson, B., Somersetshire 8pr. Ass. 1805 ; and before the judges, Trin. T. 1805, MS., and Russ. & Ry. 90. S. P. Rex v. Marshall, Russ. & Ry. T5 ; and Rex v. Francis, id. 209, and ivfra. ( p) Francis's case, Old Bailey. July, 1811. and before the judges, December, 1811, MS., iind Russ. & Ry. 209. CHAP. XXXII. § I.] AND OF THE NAME. 340 cealment and fraud: as in a subsequent case, in which the prisoner was «»/ '"'"aud m . , „ . . 1 -11 /• 1 • ii thopiirticu charged with torging an acceptance upon a bill oi exchange lu tucij^ri,,. name of Scott, the majority of the judges being of opinion that it did staucu. not sufficiently appear upon the evidence that the prisoner had not gone by the name of Scott before the time of accepting the bill in that name, or that he had assumed the name for that purpose, held that a convic- tion for such forgery was wrong. ((/) But forging in a false name assumed for concealment, with a view to a fraud, of which the forgery is part, is sufficient to constitute the of- fence. And if there be proof of the prisoner's real name, it is for him to prove that he used the assumed name before the *tinie he had the *341 fraud in view, even in the absence of proof as to what name he had used for several years before the fraud in question. (r) If a person put the name of another on a bill of exchange as acceptor if a party without that person's authority, expecting to be able to meet it when '^'''"^'".^''Y' due, or expecting that such other person will overlook it, this is forgery, uso tho But if the prisoner cither had authority from such other person, or ":'">« "f from the course of their dealings honci fide considered that he had such i(,„„ji,if authority, it is not forgery. The prisoner was charged in some counts considers with forging, and in others with uttering a forged acceptance to the fol- ^^^.j, ^^^^^^^_ lowing bill of exchange : rity, it is not forgery ^ „„ , to use juch "£'26. "Cheltenham, July 16th, 1834. name. "Three months after date pay to my order twenty-five pound.s, for value received. "John Forbes." " William Prosser, jun., Esq., Cheltenham." Accepted, payable at Messrs. Esdaile & Co., bankers, London. William Prosser, jun." The prisoner had paid away this bill, with the acceptance upon it, to a butcher to whom he owed about 41., and taken the difference. Mr. Prosser proved that the acceptance was not in his handwriting, and that he had never given the prisoner authority to put his name on any bill or security of any kind. The prisoner was an architect at Cheltenham, and was engaged in building houses for Mr. Prosser, who had recom- mended the prisoner to raise money, which, when raised, the prisoner was to draw upon, under the superintendence of Mr. Prosser, and it was sought on the part of the prisoner to raise an inference that he con- sidered he had a right to use Mr. Pressor's name. Coleridge, J., "If the prisoner drew the bill mentioned in the indictment, and which he- knew could not become due for some months after he did so, and then put Mr. Pressor's name on it without his authority, cither intending to meet it, or trusting that he should have money to do so, or trusting that Mr. Prosser would overlook it, the prisoner is guilty of forgery; but if you think that the state of affairs between the prisoner and Mr. Prosser was such that he had Mr. Pressor's authority to accept this bill, then it is not a forgery. If a person gives another leave to use his name on bills, and the person thus permitted writes the name of such person en a bill, this is as it were a signing by the person who gave the authority, although he had given on authority for the putting his name on that particular bill. The question which I shall leave to you is this, whether the name of Mr. Prosser was put on the bill mentioned in the indict- {q) Rc-x V. Bonticu, 1813, Rus3. & Ry. 2C0. (r) Rex v. Peacock, Russ. & Rj. 213. 341 OF FORGERY. — OF THE MAKING, ETC., [bOOK IV. ment without the authority of Mr. Prosser ; or was it written on the bill by the prisoner, under such circumstances that he might bond fide con- sider that he had Mr. Prosser's authority for so doing, as in the latter case you ought to acquit him."(6^ *342 So where upon an indictment for forging and uttering an acceptance But noth- on a bill of exchange in the name of John Woodman, Woodman wag such bdiot' Called, and proved that the acceptance was not in his handwriting, and ana a fair that he did not authorize any person to accept *the bill, but he admitted ground for ^|j.^j. j^^ Y\^^ known the prisoner eight years, and had had money trans- that belief, . . , , . ^ i • -fmr; i i i i • i i • • from the actions With the prisoner, and in lb2"J had been connected with him in acts of the trade, as a partner in a hat manufactory, and had many bill trans- whose actions with him, and they had trusted each other largely ; mutual name is accommodation existed between them ; none of those bills were accepted dent.^ ^^ ^J procuration; the prosecutor had accepted for his accommodation since 1836, to take up former acceptances ; the prosecutor did not always know what the acceptances were for, as he depended on the prisoner's honour; and he might have drawn on the prosecutor five or six years before without apprising him of it ; but the prosecutor had never before paid any bill on which the prisoner had used his name, and he always signed J. Woodman, which the prisoner must have known. Coleridge, J., in the course of summing up the case to the jury said, " We now come to the statement Mr. Woodman makes, and upon which it is sup- posed that the prisoner may rely for an acquittal, because he says that he has been for the last eight years in habits of great intimacy and in partnership with him. Now I put the question whether, though he had not authorized the signing of his name on that particular bill, he had ever given the prisoner a general authority. If he had said to the pri- soner, 'You may vise my name whenever you like,' it would be idle to say that the acceptance was a forgery. It is not merely writing another man's name, but writing it without authority and with intent to defraud. But I go further, because I think that if a person had reasonable ground for believing, from the acts of the party, that he had authority to ac- cept, and did in point of fact act upon that, it would not be forgery. But the case that upon a former occasion the prisoner had done what he is supposed to have done here, and on the bill being presented, Mr. Woodman had paid it without remark or remonstrance. If he had done that on three or four occasions, he might fairly say, I infer that he authorized me to do it, and after that he could not be said to come within the description of a person who forged. But I cannot go the length which has been suggested. Let me suppose one or two cases : — Suppose the prisoner to have meant to raise 200^. for two or three months, and trusted that at the end of the time he should receive 1000?., and would be able to repay it if he used another person's name without authority, and not believing that he had authority, that would be a dis- tinct forgery. No man has a right to use another's name, trusting that he may be able to take up the bill. So, if a person having no authority were to say, I want to raise a sum of money, and I am sure my father is so fond of me that he will not proceed against me criminally, and were to write his father's name to an acceptance, that would be for- gery. No man has a right to trust to the kindness of another man. If you are of opinion that the prisoner acted in either of those ways, (s) Rex V. Forbes,* 7 C. & P. 224. * Eng. Com. Law Reps, xxxii. 224. CHAP. XXXir. § I.] AND OF THE NAME. 342 knowing that he had no authority, but meaning to repay the bill or trusting that Mr. Woodman would not prosecute, in either of those cases this would be forgery. There can be nothing short of the person believing that he had authority, and having a fair ground for that belief from the other party. The authority need not be express, it may be implied from acts. I put the question to sec whether tlie prisoner had any reason for thinking that he had authority to use Mr. Woodman's name. Now you are to judge whether you have any reason to believe, looking at the circumstances fiiirly between the crown and *thc prisoner, *343 not stretching on one side or on the other, that the prisoner believed that he had authority, and from circumstances had reasonable grounds for so believing. There was great intimacy between these parties : there had been great dealings between them. All which is to be taken into account. You certainly find that the moment Mr. Woodman is called upon he does not pay the bill, and he does not in the least adopt the act that was done by the prisoner : that is really the only point in the case."(Q So where upon a similar indictment for forging and uttering an ac- if from tbe ceptance of a bill of exchange in the name of John Tyler, Tyler proved ^^"''"g^jj^.j^ that the acceptance was not his, and that he never authorized any one parties the to accept any bill for him, but on cross-examination said, "The prisoner r""''^'"^'" on the same day accepted a bill for 17?. 4s. for me. I had accepted a ground to bill for ni. 4.S. and got this bill as a renewal of the former bill, which I bdicvo he had accepted for the prisoner's accommodation. I have many times had ^.jl ^^^^gQ' money transactions with the prisoner for his accommodation, but never tiitiKimo, it for my own. I had accepted more than one bill for him, as what 110'''"°''*^°''" could not pay on the first advance I accepted another bill for. The first bill I accepted was for 50/. The prisoner had taken the liberty to use ^y name for 15/., and I paid it. lie then used my name without authority. It was an acceptance ; I paid it, and the prisoner repaid me in the course of a week. I had no difi"crence with the prisoner about it, and we have been on friendly terms ever since ; the prisoner was a prirtieular friend of mine, and I never had any quarrel with him." Lord Abiiiger, C 13., '< If the prisoner had the authority of Mr. Tyler for writing the acceptance, it is no forgery; neither is it if he had no such authority, provided that from the facts that have been proved, it is made out that he had fair ground for considering that he had such au- thority. These two parties were on very intimate terms; Mr. Tyler had more than once accepted bills for the prisoner's accommodation, and on a former occasion, when the prisoner had used his name, he paid the amount and found no fault, and the prisoner repaid him in the course of a week. You will consider whether the prisoner having to deal with the name of a person with whom he was so very intimate, fairly considered, from what had before occurred, that he had authority to do as he did, and make use of the name of I\Ir. Tyler upon the face of this bill. If you think so, and that the prisoner acted bona fide, and did not mean to defraud or injure any one, you ought to acquit him. "(h) If a person having authority in conjunction with two others to drawifonoof out money from a bank, draws out such money by means of a check in ^^^°° 1'°''" (t) Reg. V. Beard,* 8 C. & P. 14.3. (m) Reg. V. Parish,** 8 C. & P. 94. • Eng. Com. Law Reps, xxxiv. 329. i" lb. 307. Vol. II.— 23 343 OF FORGERY. — OF THE MAKING, ETC., [bOOK IV. sons having the ijresciicu of two other persons, who personate the two persons, iu jointly'to conjunction with whom he had authority to draw out the money, this is dr.iw out a forgery of the check, and the intent may be laid to defraud the bank- ft-om^^ ers. The prisoner was indicted for forging a check on the prosecutors, blink, draw Jones, Lloyd & Co., with intent to defraud them. The prisoner and out tho Dawson and Davis were members of the Hydraulic Packers' Society, ruoDGv bv Bj check which was established for maintaining the members of the society, who signed by should by depression in trade or other circumstances, be thrown out of two stran- employ. The funds of the society were provided by weekly contribu- gers, who tions, and a sum of 400/. was deposited in the bank of Jones, *Lloyd & theTwo ^ ^'^■' ^^ ^-^^ names of the prisoner and Dawson and Davis, and it was having au- not to be paid out unless all three attended to receive it. The bankers t onty, it ^g].g jiQt acquainted with the signatures of any of the three. The pri- is lorgery. ' ° •' ^ . *^44 soner having procured two persons to personate Dawson and Davis went with them to the bank, and drew out the money. The clerk who paid the money asked their names, and the names of the three members were given ; and the clerk after referring to the ledger and to the pass- book, which was brought by the prisoner, and finding the names to accord, paid the money. It was objected that the bankers would not be liable over to the society, the money having been drawn out by fraud by one of the depositors. Patteson, J., << The bankers being authorized to pay the money to three persons in particular, and to them only, pays it to one of those persons, and to two who are strangers to the transac- tion, and that without any authority, genuine or colourable, from the real parties. I am therefore of opinion that this was a forgery with intent to defraud Jones, Lloyd & Co."(v) Having thus treated of the name in which a forgery may be commit- ted, we may proceed to consider how far the validity in law of the thing forged, supposing it were true, is essential to forgery.'f' As to the Though it is said to be in no way material, whether a forged instru- the^thinff i^ent be made in such a manner as that, if it were in truth such as it is forged if counterfeited for, it would be of validity or not;(io) yet it seems to be genuine, material, that the false instrument should carry on the face of it the semblance of that for which it is counterfeited, and should not be ille-^\ gal in its very frame. (^■) One of the definitions of forgery is given, a.^-^-^ " the false making an instrument, which purports on the face of it to be good and valid for the purposes for which it was created, with a design to defraud." (y) Upon the ground that it is not material whether a forged instrument be so made that, if it were in truth such as it is counterfeited for, it {y) Dixon's case, 2 Lew. 178. Wright's case, 1 Lew. 135, ante, p. 322, was cited to show that the bankers were not liable over to the society. iw) 1 Hawk. P. C. c. 70, s. 7. 2 East, P. C. c. 19, s. 43, p. 948. [x) 2 East, P. C. c. 19, s. 43, p. 948. [y] By Eyre, B., in Jones and Palmer's case, 1 Leach, 367. ■}• [To constitute the offence of forgery, in counterfeiting the notes of a bank, it is not necessary that such bank, as the notes purport to have been issued by, should have a legal existence ; it is enough that the notes purport to have been issued by a corporation or com- pany, duly authorized to issue notes. The People v. Peabody, 25 Wend. 472. Where, how- ever, the intent is charged to have been to defraud the bank purporting to have issued the notes, the bank must be shown to be a real body, capable of being defrauded. Ibid. To constitute forgery the instrument must be such when forged that it does or may tend to prejudice the right of another. The intent to defraud some one must be averred, and it must be proved as laid. Evidence which tends to prove that the forged instrument could not. under any state of circumstances, prejudice the rights of any one, is competent to go to the jury. Barnum v. The State, 15 Ohio, 717.] CHAP. XXXII. § I.] AND OP THE NAME. 344 would be of validity or not, it Las becu adjudged that the forgery of a protection in the name of A. 13., as being a member of parliament, who in truth at the time was not a member, is as much an olleuce at com- mon law, as if he were so.{z) In a case where the defendant was convicted upon an indictment on the 5 Eliz. c. 14, (now repealed) which stated that one CJarbut and his wife were seized in fee of certain messuages, laud?, and tenements, called Jawick, in the parish of Clacton, in Essex, and that the defend- ant intending to molest them, and their interest in the premises, forged a lease and release as from Garbut and his wife, whereby they were supposed for a valuable consideration to convey to him " all that park called Jawick, in the parish of Clacton, in Essex, containing eight acres in circumference, with all the deer, wood, &c., thereto belonging," it was moved in arrest of judgment, that the premises supposed to be con- veyed were so materially different from those which wore really the estate of Garbut and his wife, that it was impossible this conveyance could ever molest or disturb them. But the court held that it was not necessary, there *should be a charge, or a possibility of a charge, and *345 that it was sufficient if it were done with such intent, and that the jury had found that it was done with intent to molest Garbut and his wife in the possession of their land. (a) So where an indictment was for forgery at common law of a surren- der of the lands of J. S., and it was not shown in the indictment that J. S. had any lands, it was hulden upon motion in arrest of judgment that the indictment was good, upon the principle that it was not neces- sary to show that the party was prejudiced. (6) Upon the same principle, the doctrine is established by several cases, Forgery that forgery may be committed by the false making of an instrument, |."n'^,ni^|ted purporting to be the will of a person who is still living; notwithstand- by the false iug the objection, that during the life of a party his will is ambulatory, ".'"''""n *^|. and can have no validity as a will until his death. Thus, a prisoner a living was convicted for forging a seaman's will, who it appeared was still •'/;'"*'"?' alivi', and had returned to England two years after the prize money had ^ju (g am- boon received by the prisoner, under a forged will.(c) In a subsequent buiatory ca'r^'oi7 of fore, a lawful bill of cxtbauge but a piece of waste paper incapable of [!h^'„g';|. ^^' bccomiug the subject of cither fraud or felony ; that the party who took uusiuiuiK-d it must at the time have known that it was not a legal bill of exchange, I'*!"-"''- or he must have been grossly negligent, the defect being visible on the face of it. ]Jut Buller, J., who tried the prisoner, overruled the objec- tion, on the ground that the stamp acts were merely revenue laws, and did not purport in any way to alter the crime of forgery ; and that the false instrument had the semblance of a bill of exchange, and was ne- gotiated by the prisoner *as such. But he saved the point for the con- *347 sideration of the twelve judges, who were all of opinion, that the pri- soner was properly convicted; that the stamp acts, in saying that a bill without a stamp shall not be pleaded, or given in evidence, or be avail- able, in law or equity, signified only that it should not be made use of to recover the debt; and further, that the holder might get the bill stamped after it was made. (7) This authority was acted upon in a case which occurred very shortly afterwards, where the prisoner being indicted for forging a bill of ex- change, an objection which was taken to the bill being produced in evi- dence because it was not stamped was overruled, and the prisoner was convicted and executed. (/i) The point underwent further discussion in a case which occurred after Morton's the 31 Geo. 3, c. 25, s. 19, had prohibited the stamping of a bill or note j"''*'; after the time of their being made. The prisoner, Morton, wa.-< indicted forgery bo for knowingly uttering a forged promissory note, which, on being pro-'"""""'"'-'J^ duced in evidence, appeared to have been drawn on unstamped piipcr ; g'oryuot'eon and the case was saved for the opinion of the judges, as well on the unsfampod principal point, as on the 31 Geo. 3, c. 25, s, 19, which passed after {',;^^,^'^j, ^^^ Haivkeswood' s case, and prohibited the stamp to be afterwards affixed 31 (Juo. 3, The question underwent much consideration, and was debated by th ''• V'.'^ '?' • 1-1 i» 1 ni n 1 ^ < prohibitod judges in the course 01 several terms. Two or three of the judge' the stamp doubted at first the propriety of Ilaivkcsicood'' s case, if the matter were'^''""' •^'^'"S res iniijva, yet they all agreed that they must be governed by that case, afterwards. as it was an authority in point; and that the 31 Geo. 3, c. 25, s. 19, made no difference in the question. And most of the judges maintained the principle in Ilaickeswood's case to be well founded; for they held that the acts of Parliament which had been referred to and rulied on, being mere revenue laws meant to make no alteration in the crime of forgery, but only to provide that the instrument should not be available for the purpose of recovering on it in a court of justice ; but it might be received in evidence for collateral purposes ; and they instanced the Gth and 10th sections of the act which made the party, drawing such a bill, liable to the statute duties, and to a penalty of 2U/; in both which cases the bill must be used in evidence. And they considered that in order to constitute forgery it was not necessary that the instrument should be available; that though a compulsory payment, by course of law, could not have been enforced for want of the proper stamp, yet a man might equally be defrauded by a voluntary payment being lost to (1) The provisions of the acts are to the cfl'ect that no bill of exchange, &c., not stamped as these acts direct, shall be |)leaded, or given in evidence in aiii/ court, or admitted in any court to be good or available in law or equity. (./) llawkeswood's case, Worcester Spr. Ass. and East. T. 1783. 1 Leach, 257. 2 Easi, P. Co. 19, s. 45, p. 9.55. (k) Lee's case, 0. B. 1784. 1 Leach, 258, note (a). 347 OF LARCENY. — OF THE MAKING, ETC. [BOOK I\ . him ; that if this were a sufficient defence, forged securities might be published on improper stamps with impunity, which would carry the mischief to an alarming extent ; that the stamp itself might be forged; and it would be a strange defence to admit in a court of justice, that because a man had forged the stamp, he ought to be excused for having forged the note itself, which would be setting up one fraud in order to protect him from the punishment due to another. (Z) *348 So where it appeared that the forgery charged against the ^prisoner, was the alteration of a 10/. bill of exchange into one for 50?., it was holden to be not less a forgery from the circumstance of the bill having been re-issued three times as a 10/. bill without being re-stamped, and being, therefore, not available in a civil action at the time the alteration in it of 10/. into 50/. was effected. The judges, on a conference, said that it had been decided that the stamp acts had no relation to the ques- tion of forgery ; and that supposing the instrument forged to be such on the face of it as would be valid, provided it had a proper stamp, the offence was complete. (m) The same The same doctrine was acted upon in several other cases. («) And it doctrine -g ^g|j observed that if the matter be duly considered, the words of the acted upon . ,itii in other stamp acts before mentioned can only be applicable to a true instrument; cases. fQj. a forged instrument, when discovered to be such, never can be made available, though stamped : and that the acts, therefore, can only be understood as requiring stamps on such instruments as were available without a stamp before those acts passed, and which would be available afterwards with a stamp. (o) The false It has been spoken of as a material circumstance, that the false instru- ins rumen jj^g^^j. gj^ould carry on the face of it the semblance of that for which it is Sijouki ^ ^ carry on the counterfeited. (/)) But it is not necessary that the resemblance to the faceofitthe jjjjQ^jj ifistrument should be exact : it seems to be sufficient if the instru- Semblance ^ e ^•■^ ^ • i • i • t i oi that for ments be so tar alike that persons in general using their ordinary obser- ■whieh it is yation upon the subject may be imposed upon by the deception, though ed • so as to i* would not impose upon persons having particular experience in such deceive matters, (g') using^ordi- Thus where the prisoner was indicted for the forgery of bank-notes, nary obser-and a witness for the prosecution, who came from the Bank of England, vation. stated that he could not have been imposed upon by the forged notes, the difference between them and the true notes being to him very appa- rent in several particulars, but it appeared that others had been deceived at first by them, though they were very ill executed, Le Blanc, J., pro- ceeded upon the foregoing principles. ("r^^ Elliot's The doctrine had previously been sanctioned by the opinion of the couv'iction J"^g<^3 ^^ ^^ following case. The prisoner, James Elliot, was indicted is good or for forging a bank-note of the following tenor. (Z) Morton's case, York Sum. Ass. l7D5,Mich. T. iTSo, and Eil. and East. T. 1T96. 2 East, P. C. c. 19, s. 45, p. 955. [m) Teague's case, cor. Le BLinc, J., Hereford Sum. Ass. 1802, andMich. T. 1802. 2 East, P. C. c. 19, s. 55, p. 979. Reg. v. Pike, 2 Moo. C. C. R. 70. (w) Reculist's case, 0. B. 1796. 2 Leach, 703. Davies's case, cor. Grose, J., Surrey, Spr. Ass. 1796. 2 Leach, 707, note (i). 2 East, P. C. 19, s. 45, p. 956. (o) 2 East, P. C. c. 19, s.45, p. 956. {p) Ante, p. 344. \q) 2 East, P. C. c. 19, s. 6, p. 858, and s. 34, p. 950. (r) Boost's case, cor. Le Blanc, J., Exeter Spr. Ass. 1802. 2 East, P. C. c. 19, s. 44, p. 950. f {See 7 Pick. 137, Commonwealth v. Smith, that a counterfeit bill may be "in the simili- tude of the bills issued by a bank," though the bank may never hare issued bills of the same amount.? CHAP. XXXII. § I.] VALIDITY OF THE TIIIXQ FORGED, IF GENUINE. 348 <'No. 17.73. forging a " I promise to pay to Mr. Jos. Crook or bearer, on demand, the sum thougnn of fifty. »"ch forgod London, 20 June, 1775. ^^^/^^ £Fifty. For the Govr. and Cimipauy of tlic " imunds" Bank of Enirhmd. ^^ omitted, _ m m .f and thouijh "Entd. C. 13LEWERT. luOS. TUOMPSON." thero be no wat«r-mark *Some of the counts of the indictment stated the instrument to be a p'^-gj bank-note, and others to be a note in the form of a bank-note; but the *o4.q fifth count, which was that on which the question turned, and on wliich the counsel for the crown relied, charged <' that the said James Elliot, on the 14th June, 1777, feloniously did make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, &c., a certain jirumissory note for the iwijmcnt of money, with the name of Thomas Thompson, thereunto subscribed, purporting to bear date, &c., and to have been signed by one Thomas Thompson, for the Governor and Company of the Bank of England, for the payment of fifty pounds to Mr. Joseph Crook or bearer, on demand, the tenor of which, &c., with intention to defraud the Governor and Company of the Bank of Enijhind.^' It appeared that the note had never been published, being found in the prisoner's possession at the time he was apprehended ; but the forgery was brought home to him, and he was convicted. The doubt concerning this case arose upon the following facts, which ap- peared in evidence. The officers of the Bank of England proved that the note was in every respect, both in paper and print, similar to a bank-note, both in the written and printed parts of it, except, first, that the number was not filled up ; secondly, that the word " pounds" was omitted in the body of the note j thirdly, that the texture of the paper was rather thicker than that used by the bank ; and, fourthly, that, in the fabric of it, the water mark, viz., the words " Bank of England," were not inserted : but they said that a bank-note, with the like omis- sion of the word " pounds" in the body of it, being regular in other respects, would be paid, by the usage of the bank, after it had passed the examiner's office. And a real bank-note of the same date and tenor, except as above excepted, was produced in evidence. Upon these facts it was contended that this was not a note resembling a bank-note for want of the water mark; and also that it was not a note ior fifty pounds, the word "pounds" being omitted: and judgment was respited in order to take the opinion of the twelve judges. The case was con- sidered by them, and they were all (except De Grey, C. J., and Smythe, C. B,, who vrere absent,) of opinion that the conviction was right ; as in forgery there need not be an exact resemblance ; and it is sufficient if the instrument is j^^"^^*^ faeia fitted to pass for a true instrument. The majority of the judges inclined to think that the omission of the word '< pounds" in the body of the note, had nothing else appeared, would not have exculpated the prisoner ; and that it was matter to be left to the jury, as it was done, whether it purp >rted to be a note for fifty jwunds, or any other sum : and all the judges agreed that the << fifty" in the margin of it removed every doubt, and showed that the fifty in the body of the note was intended for fifty jJow?ic7s.(s) (s) Elliott's case, Maidstone Sum. Ass. 1777. Mich. T. 18 Geo. 3. 1 Leach, 175. 2 East, P. C. c. 19, 8. 44, p. 951. 2 New R. 93, note (a). 349 OF FORGERY. — OF THE MAKING, ETC. [bOOK IV. — ti^^, — — — ■ ______^ — ^ — — ^ • CoHicotfs Upon the same principles, in a case where the prisoner engraved a ease. En- ^,Q^^teI.feit medicine stamp, so as to be like to a genuine stamp, except counterfoit only that the centre part, which in a genuine stamp specifies and de- stamp like JJQt^3g tjjQ duty, was blank in the first instance, but cut out before the *350 counterfeit stamp was used, a paper with the words *" Jones, Bristol," part to a on it being pasted over the vacancy, and then uttered such counterfeit gonuino stamp, it was bolden that he was guilty of a forgery and. uttering. uuUlio m Grose, J., in delivering the opinion of the twelve judges on this case, otbers, and after stating that it was proved that those parts of the counterfeit stamp tfu "ouTtbe ^^^^'^ remained were a perfect resemblance of the same parts on a uuliko genuine stamp, and that the whole was a fabrication so artfully con- conceamf t^i^cd as to be likely to deceive the eye of every common observer, tho part cut further said, "An exact resemblance or fac simile is not required to out, and constitute the crime of forcery ; for if there be a sufficient resemblance tUBii utter- o •/ y ing it, is a to show that a false making was intended, and that the false stamp is forgery and go made as to have an aptitude to deceive, that is sufficient."(<) It has uUerfno-. l^ccn determined on the statute 25 Edw. 3, (now repealed) that splitting the great seal, and closing it again to a false patent, is a counterfeiting of the seal :(u) and that where the seal is substantially counterfeited, the adding or omitting of a crown, the leaving out words in the style, or adding others, or making any other minute variation in the counter- feit, which is often done purposely, and by way of eluding the law, will not alter the case.(i;) A mere And it seems that a mere literal mistake in the framing of the instru- hteral mis- jj^g^j itself, well laid in the indictment, will not make any difference, not make And it is observed, that in a case where the prisoner, in forging an any differ- order for the delivery of goods, blundered in spelling the name, using Desemockez for Desormeaux, no stress was laid on such circumstance, though on other grounds the indictment was holden bad.(tt') Fitzgerald The prisoners Fitzgerald and Lee were indicted for forging the last and Lee's ^jjj ^^^ testament of Peter Perry, late a seaman on board his majesty's g'ery" may ship the Lancaster, with intent to defraud the king. The will began — " In be com- bis ^11, though tl^e name of Grod, Amen, I, Peter Perry, &c., and ended John ><{ Perry." it be signed mark wrong ^^ appeared that the prisoner, Fitzgerald, carried the will to the office Christian of the deputy register, who, on observing the difference of the Christian name of names, told him he must produce the person who had written the will, whose will or the person who was present when it was executed, in order to ac- it purports count for this error before the probate could be granted. Fitzgerald ac- cordingly produced the other prisoner Lee, who, in the name of Welsh, swore that he was one of the subscribing witnesses ; that the name of the deceased was Peter Perry ; that the said Peter Perry did make his mark to, and deliver the said will ', and that he (Welsh) by mistake had written the name John Perry instead of Peter Perry. Upon this a pro- (/) Collicott's case, 1812. 2 Leach, 1048. 4 Taunt, 300. Russ. & Ry. 212, 229. (m) IHale, 178, 184. ((') Robinson's case, 2 Roll. R. 50. 1 East, P. C. c. 2, s. 25, p. 86. This was an indictment under the statute 1 Mary, c. 6, for counterfeiting the privy signet. In 1 East, ubi svj)ra, it is said, "The disparity, however, may be so great between the true and false seal that it would not amount to a counterfeiting within the statute, as if it be evident to the view of every man's eye." (w) 2 East, P. C. c. 19, s. 45, p. 952, 953. The case referred to is Clinch's case, 1 Leach, 540. 2 East, P. C. c. 19, s. 37, p. 938. CHAP. XXXII. § I.] IIESEMBLANCE TO GENUINE INSTRUMENT. 350 bate of the will was granted. The prisoners having been found guilty, the question was reserved for the considerutiou of the judges, whether this was in law a forging of the will of Peter *Pcrry, as laid in the in- *351 dictinout? And, though no opinion was ever publicly delivered, the prisoners were afterwards executed pursuant to their sentence. (./) In a case where it was proved that the prisoner tduk a bill of ex-'^Vick's change, which he was indicted for forging and uttering, knowing, &c., ^";'*\,iii °[' to a banker's, in order to get it discounted, and upon receiving the dis- i-xdiango, count, indorsed it there, but not in his own name: and it appeared also, f^"'"»'' ''° 1 • -1 PI 1 1 •!! luJorso- that thitujih there was the indorsement of another name upon the bill uu-ut of tha besides that which the prisoner indorsed, yet there was no indorsement nnn't-s of upnu it uf the names or firm of the drawers who were also the payees; jruwers. it was objected on behalf of the prisoner that, as there was nulhing upon the bill purporting to be an indorsement of the drawers, it could not pass as a bill of exchange, nor was capable of defrauding the persons whose names were forged. (^) But the learned judge who tried the prisoner overruled the objection, and the prisoner was convicted: and, upon the point being afterwards submitted to the consideration of the judges, they were of opinion that the conviction was right. (^•) Upon an indictment for forging the following instrument, which was An in«tru- described as a bill of exchange : men t drawn o by A. upon 1j., rcquir- " Flinstshire District Banking Company." '"J^' h\m\x> "Twenty-one days after date pay (without acceptance) to the order order of c. of 3Ir. James Henderson, £70. « certain Tn 1 -J sum at a J^ or value received, certain For the Company, tinie"with- J. Watkins, Manager." ''"^ '^.?"i"- ' o anco IS a " To the London and Westminster Bank, bill of ex- Throgmortou-street, London." chango. It was objected that the instrument was not a bill of exchange; to con- stitute a bill of exchange there must be a person drawing, a person on whom it is drawn and who is to accept, and a person to whom payment is to be made, and here the drawer expressly prohibited acceptance. Patteson, J., " This instrument certainly differs from all others that I have seen as bills of exchange, by reason of the words < without accept- ance.' I do not, however, consider that the insertion of those words alters the character of the instrument, so as to prevent its being a bill of exchange. All that is necessary to constitute a bill is, that the party making the instrument should direct it to some other party, requiring that other party to pay the money therein mentioned to some third per- son or his order, or to the order of the party so making the instrument. (r) Rex V. FitzperaM and Lee, 0. B. 1741, and Mich. T., 15 Geo. 2. 1 Leach, 20. 2 East, r.C.c. 19, 8. 45, p. 953. (»/) Amongst other cases, Moffatt's case, posi, p. 35G, and WaU's case, post, p. 357, were cited. (?) Rex u. Wick.s, for. Wood, B. Gloucester Spr. Ass. 1809, and East. T. 1809, MS. and Rii^s. & lly. 149, Bayley, J., was not at the meeting of the judges, but he thought the con- viction wrong, on tiie ground that for want of an indorsement the bill was not negotiable, and therefore, if genuine, would not have been of value to the taker of it. And see Rex v. Cartwright, Russ. & Ry. lOG, where an indictment was held bad, on the ground that the in- strument given in evidence was not, as stated, an order for mone.y: and a question by Le Blanc, J., there mentioned in the note (6), whether this paper, though not directed to any person as drawer, might not, under the circumstances, have been treated as a bill or order. *352 OF FORGERY. — OF THE MAKING, ETC. [BOOK IV. The drawer may iu each case prescribe the terms upon which the *pay- mcut is to be made. Here he has ch iseu to prescribe that the drawee is to make the payment 'without acceptance :' the meaning of which I take to be that the holder is not to be put to the trouble of presenting it to the drawee before it becomes due ; but still if he should choose to present it, there is nothing to prevent the drawee from accepting it; actual acceptance, of course, is not necessary to make the instrument a bill of exchange. Bills are daily noted and protested as bills for non- acceptance : they must, therefore, be bills before acceptance. Bills at sight are not, in fact, commonly accepted. I think, therefore, that the instrument is properly described as a bill of exchange." (a) Omission of Where the prisoner drew a bill upon the treasurer of the navy, paya- tho nameof ble to blank or order, and signed it in the name of a navy surgeon, it payee. ^^^ holden, that to constitute an order for payment of money, there must be some payee ; and that a direction to pay to blank or order was not sufficient. (6) So where the prisoner was indicted for forging and uttering a navy pay bill, which was made payable to blank or order, it was holden that there must be some payee, and the conviction was held wrong. (c) Omission of It has been holden that an instrument in the form of a bill of ex- thenameofgjjj^Qgg with an acceptance on it is a bill of exchange, although there " be no person named as drawee in the bill. The indictment charged that the prisoner having in his possession a bill of exchange as fol- lows : "£20. " Birmingham, 9th August, 1837. " Two months after date pay to my order the sum of twenty pounds for value received, Edward Hawkes." « G-eneral Provision Warehouse, Baker, &c., Unett-street, Well-street, Hockley." on which was written a forged acceptance, as follows, " Accepted, payable at Messrs. Grillett and Tawney's, Bankers, Ban- bury. William Sellers." uttered the same knowing the acceptance to be forged. Bosanquet, J., thought that the writing upon the instrument purported to be an accept- ance by Sellers as drawee of the bill, and if not, that it was an accept- ance for the honour of the drawer; and, upon a case reserved, upon the question whether the instrument upon which the forged acceptance was written, was properly described as a bill of exchange, not being ad- dressed to any person as drawee, the judges were of opinion that the conviction was right, except Parke, B., Patteson, J., and Coleridge, J., who thought otherwise. (c?) *353 It is also laid down as clear, that it is no objection to the charge of It may be forgery that the instrument is not available, by reason of some *collate- (a) Reg. V. Kinnear, 2 M. & Rob. lit. (b) Rex v. Richards, Russ. & Ry. 193. (c) Rex V. Randall, Russ. & Ry. 195. (d) Reg. V. Hawkes, 2 Moo. C. C. R. 60. Littledale , J., Park, J. A. J., and Bolland, B., were absent. CHAP. XXXII. I.] RESEMBLANCE TO GENUINE INSTRUMENT. 353 ral obiection not appearing upon the face of it.fe^ So that, where a fprgeiy • J- . J i- f • Ji e X' . c • though the prisoner was indicted for lorging an order for the payment oi prize- instrument money, and it appeared that the party whose name was forged was a dis- is ixjt avail- charged seaman, and was, at the time the order bore date, within seven "ga^^/of miles of the port where his wages were payable; under which circum-sumo colla- stances his genuine order would not have been valid by the provisions ^.^'"*' °^j®°" of the 32 Geo. 3, c. 34, s. 2, unless made in the manner therein pre- if the in- scribed ; the offence was holden to be a forgery, the order itself pur- strumont porting, on the face of it, to be made at another place beyond the lim-forui on the itcd distance.(/) f"'^*-' "^ .''- '' So it is no diJfence to an indictment for forging and uttering an order of a board of guardians of a poor law union, to show that the person who signed the order as presiding chairman was not in fact chairman on the day he signed the order. The indictment against the prisoner was for forging and uttering the following order : "No. " Aylsham Union, the 14th day of Nov. 183T. " To John Ringher, Esq., Treasurer. "Pay to B. P. Drouet, or bearer, the sum of .£149 ICs. lOrf. " John Warnes, Presiding Chairman. "John Rump, "| ^ ,. , T 1 /^ V Guardians. "John Cross, J Henry Pike., " Clerk to the Board of Guardians of the said Union." The signatures of Warnes and Rump were proved to have been writ- ten by them at a meeting of the guardians of the union, but it was not proved that Warnes was the presiding chairman, when he signed the order. The signature of John Cross was proved to be forged. Upon a case reserved, it was contended that though the instrument purported to be signed by the presiding chairman, and so was on the face of it valid, yet it might be shown on the part of the prisoner that in fact the person signing and describing himself as presiding chairman did not fill that character, and that the instrument would then be equally invalid, as if the deficiency had been on the face of the instrument ; but the judges were unanimously of opinion that there was nothing in the ob- jection. (^) . But the offence will not be forgery where the false instrument docSjj"^ be'for- not carry on the face of it the semblance of that for which it is coun- gory whero terfeited, or where it is illegal in its very frame. (7t) instrument In a case where the instrument charged to be forged was an order in has uosom- the name of a creditor to a gaoler, for the discharge of a debtor who'^'-'"^" "^ , i .*' 1^- 1 1 the true was in prison under an attachment for a contempt, it was objected that one, or is such instrument was a mere nullity in itself, even if genuine; but iti'lepnl'^ became unnecessary to decide upon the objection. (i) framo. (f) 2 East. P.^ C. c. 19, s. 45, p. 956. (/) Mlntosh's case, cor. Le Blanc. J., 0. B. 1800, and afterwards considered by the judges, 2 East, P. C. c. 19, s. 39, p. 942. 2 Leach, 883. [g) Reg. V. Pike, 2 Moo. C. C. R. 70. Per Lord Abinger, C. B., " It docs not lie in the pri- soner's mouth to set up that Warnes was not ia fact chairman. By uttering the bill he rep- resents the whole as true." {h) Ante, p. 344. (i) Fawcett's case, York Spr. Ass. 1793. 2 East, P. C. c. 19, s. 7, p. 862, and s. 45, p. 952, *354 OF FORGERY. — OF THE MAKING, ETC. [bOOK IV. Tonos's *Whcre the false instrument was in the following form without any ease. In- • , strument Signature, defective as a bank ,, ^^_ -p. 946. note. " I promise to pay John Wilson, Esq., or bearer, Ten Pounds. "London, March 4, 1776. £Ten. "For Self and Company, of my Bank in England." " Entered, John Jones." and it was laid in one set of counts as a paper writing, purporting to be a bank note; and in another as purporting to be a promissory note, for the payment of money ; it was holden that the prisoner was entitled to an acquittal, though it was specially found by the jury that the prisoner averred that the instrument was a good bank note, and uttered and pub- lished it as a good bank note. The court said that the representation of the prisoner could not alter the purport of the instrument, which was what appeared upon the face of the instrument itself; and that, although such false representations might make the party guilty of a fraud or cheat, they could not make him guilty of a felony. (y) Eeadinn-'s In a casc where a bill of exchange was directed to "John Ring," case. and the acceptance was by "John King;" and the indictment stated that the bill purported to be directed to John King by the name of John Ring, and that the prisoner forged the acceptance in the name of John King ; judgment was arrested, because Ring could not purport to be King.(k) Pateman's Forging or uttering a note which for want of a signature is incomplete, case. o e .^^ holden not to be an offence within the statute, by which forgery of incomplete _ _ . "^ ° . for want of notes was subjected to capital punishment. The prisoner was convicted a signature, ^f ^j^g offence of Uttering and publishing as true a forged promissory note for the payment of 40?., with intent, &c. It appeared in evidence that the note in question had been originally issued by the Bedford bank as a one pound note, and was then as follows : " No. 16209. " Bedford Bank, £1. '' I promise to pay the bearer One Pound on demand here or at Sir Charles Price, Bart., & Co., London. " Value received. " Bedford, the 17fh day of October, 1817. " For Barnard, Barnard and Green, "Thomas Barnard." and the note was afterwards altered by cutting out or obliterating the word one and pasting in or inserting in the place of it the word forty, where the learned writer says, that it does not appear whether the judges decided the case on that ground, as, at any rate, the indictment was holden good as a cheat. And see Gibb's case, 1 East, R. 173. 2 East, P. C. c. 19, s. V, p. 864. (/) Jones's case, cor. Lord Mansfield, Chelmsford Sum. Ass. 1779, and B. R. Mich. T., 30 Geo., Doug. 300. 1 Leach. 204. 2 East, P. C. c. 19, s. 11, p. 883, and s. 45, p. 952. Upon this case, Mansfield, C. J., in the case of Rex v. Collicott, 4 Taunt. 303, observed, "Jones's crime was that of telling a falsehood." (k) Reading's case, 0. B. 1793, and 1794. 2 Leach, 590. 2 East, P. 0. c. 19, s. 45, p. 952, and e. 56, p. 981. CHAP. XXXII. § I.] RESEMBLANCE TO GENUINE INSTRUMENT. *855 and by cutting off the last line which contained the signature, *and by some other smaller alterations. The note then was as follows : <'No. 16209. " Bedford Bank.. " I promise to pay the bearer Forty Pounds on demand here or at Sir Charles Price, Bart., and Co., Bankers, London. " Value received. Bedford, the 17th day of October, 1817. - " For Barnard, Barnard, and Green." And in this form it was uttered by the prisoner as a note for forty pounds, and the prosecutor gave him forty pounds in change for it. Ob- jection was taken on behalf of the prisoner, that this note as uttered by him was incomplete, and was not, nor did it purport to be, a promissory note, for want of the signature ; and that, therefore, it was not the sub- ject of forgery within the statute; and the point being reserved for the consideration of the judges, they wei'e unanimously of opinion that the objection was fatal, and the conviction wrong. (?) In a case in which tho prisoner had been convicted of a misdemeanor, Burke's as for an offence at common law, for disposing of, &c., an instrument in gl'pi^n^ent'' the form of a promissory note, the count upon which the prisoner was averred to found guilty charged in substance as follows : namely, that the prisoner ^'^. "■ ^^°' on, &c., with force and arms, at, &c., unlawfully and fraudulently did „ute, but dispose of and put away to one J. H. a certain false, forged, and coun- 'icfpctiyo, tcrfeited promissori/ note, which said false, forged, and counterfeited ^^^^^^ ^u be promissory note was as follows, that is to say, the subject of iiidict- niont for T31 1 k I I f'-rgery at Blackburn | ,.,mmon Bank. I SOshilhngs. ,,,^. No. 6414. I ~"iT:nV" i 30 shillings ' •■"■"'""'^ I promise to take this as thirty shillings on demand, in part fur a two pound note value received. Entd. J. C. Blackburn, Sept. 18, 1821. No. 6414. For Cunliffe, Brooks, & Co. 30 shillings. R. Cunliffe. With intention to defraud II. C, J. C, &c., the said prisoner at the said time he so disposed of, &;c., well knowing the same to be false, forged, and counterfeited to the great damage of the said 11. C, &c. It was objected by the counsel f'r the prisoner, that this instrument could not in any legal sense be denominated a promissory note, as charged in the indictment ; and the learned judge reserved the point for the con- sideration of the judges, it appearing also to him that there was great doubt whether the genuine insirununt or writiu;;-, s\ipposed to be forg'/J and uttered, had any legal validity ; *an(l wh thir it was not a men; *356 nullity, for the forgery of which no indicfment could be sustained. The {I) Reg. V. Hatoman, Russ, & Ry. 455. 356 OF FOKGERY. — OP THE MAKING, ETC. [bOOK IV. case being submitted to the consideration of the judges, they decided that judgment should be arrested. (?n) Defective So where the prisoner was indicted for forging and uttering a bill of bill of ex- exchange in the following form : change. ° o "Nov. 10, 1840. " Please to pay to your order the sum of forty-seven pounds for value received. " To Mr. G. Peckford, <' J. Bishop." " Yeovil." ''Accepted G. Peckford," and indorsed "J. Bishop;" it was objected that this was not a bill of exchange; it was nothing more than a request to a man to pay himself, and the acceptance of such a document laid the acceptor under no obligation to a third party ; Erskine, J., said, he would reserve the point, and the prisoner was convicted ; but the learned judge afterwards thought the objection so clearly good, that he recom- mended a pardon for the oifence.(«) Moffatt's Where the indictment was for knowingly uttering, as true, a forged buTof ex acceptance of a bill of exchange, and it appeared that the bill in ques- change tion was absolutely void by the provisions of a statute at that time in drawn for fgree, it was holden that a conviction could not be supported. The bill the sum, of exchange was of the following tenor : and not in the form re- " Sir, Navy Office, 21st December, 1786. th^"^!? G^ " Seven days after date, please to pay to Mr. John MofFutt, or his 3, c. 30, ' order, the sum of three pounds three shillings, and place the same to holden not ^j^g account of to be the ___ „ ,, subject of "Walter Sterling." forgery. u To George Peters, Esq., " Bank of England." "Accepted, G. Peters." And the question was, whether, supposing this bill of exchange to be void, by the provisions of the 17 Geo. 3, c. 30, s. l,(o) not being drawn according to the form therein prescribed, (as it neither specified the jplace of the abode of the payee, nor was attested hy any suhscrihing witness, though for less than 5?.,) the forging of it could not be considered as a capital offence within the 2 Geo. 2, c. 25, and 7 Geo. 2, c. 22, on which the indictment proceeded. All the judges were of opinion that the conviction was wrong ; on the ground that, if the bill in question bad been a genuine instrument, it would have been absolutely void, and nothing could have made it good : and that, by the 17 Geo. 3, c. 30, such an instrument was no bill, and had not the appearance or semblance of one. (^j) (m) Rex V. Burke, Russ. & Ry. 496. It may be observed of the instrument stated in the indictment that it was not payable to the bearer on demand ; that it Avas not payable in money ; that the maker only promised to take it in payment : and that the requisitions of the statute 17 Geo. 3, c. 30, were not complied with. {n\ Reg. V. Bartlett, 2 M. & Rob. 362. (o) This statute continued in force till the end of the session of parliament, during which the forgery was committed. It was afterwards made perpetual by the 27 Geo. 3, c. 16, but suspended by the 37 Geo. 3, c. 32, and other statutes, until six months after the ratification of a treaty of peace. See 1 Leach, 434, note (a). {p) Moifat's case, 0. B. 1787, and Hil. T. 1787. I Leach 431. 2 East, P. C. c. 19, s. 45, p. 954. criAP. xxxir. § ii.] of the instruments, etc. *357 *The prisoner, Thomas Wall, was convicted upon an indictment for Wall's case, forging and knowingly uttering a will of land of one John Skidmore, ^..^"fj^''" deceased, attested by only two witnesses; and, as it did not appear in forcing a evidence what estate the supposed testator had in the land so devised, ^''* "* 'anJ. /., . ii--ii , uttL'stod by or ot what nature it was, so that it might be presumed to be freehold, only two and, therefore, the will void and of none effect, by the express enact- '^''"*'^'^*» meut of the statute of frauds,(r/) for want of the attestation of three bo wrong. witnesses, the judges held the conviction wrong; on the ground that, ;is it was not shown to be a chattel interest, it was to be presumed to bo freehold, (r) So it has been held, upon a case reserved, that an order for relief of discharged prisoners from a county gaol under the 5 Geo. 4, c. 85, being in many instances ungrammatical and at variance with the act, will not support an indictment for forgery.(s) SECT. II. Of the Written Instruments in respect of xcliich Forgery may he committed. "We may now proceed to consider of the written instruments in res- Of the pect of which forgery may be committed. written in- It is clearly agreed that, at common law, the counterfeiting of a mat-inriRpectof ter of record is forgery ; for, since the law gives the highest credit to all ^^'^•^ f*^'- records, it cannot but be of the utmost ill consequence to the public tofrcom^it- have them either forged or falsified. (/) Also, it is agreed to be forgery ted. to counterfeit any authentic matter of a public nature; as a privy seal,(«) or a license from the barons of the exchequer to compound a debt,(i') or a certificate of holy orders,(«-) or a protection from a parlia- ment man.(.r) It is also unquestionable that a man may be, in like manner, guilty of forgery at common law, for forging a deed;(j/) and, therefore, it seems that one may be equally guilty by forging a will, which cannot be thought to be of less consequence than a deed.(,r) There seems to be some strong opinions in the books that the counter- feiting of any writings of an inferior nature to those above-mentioned is not forgery at the common law. (a) And it has been holden, that the forging of another's hand, and thereby receiving rent due to him from his tenants, is not punishable at all.(?^) But Hawkins remarks, that it cannot *surely be proved by any good authorities, that such base =*35S (q) 29 Car. 2, c. 3, s 5. \r) Wall's case, cor. Thomson, B., Worcester Spr. Ass. 1800; and East. T. 1800. 2 Kast, P. C. c. 19, s. 45, p. 953, 954. («) Rex V Donnelly, R. & M. C. C. R. 438. U) 1 Rdll. Ab. 65, 76. Yelv. 146. Cro. Eliz. 178. 8 Mod. 66. \u) 1 Roll. Ab. 68, pi. 33, Cro. Car. 326. 1 Jones, 325. (y) 1 Roll. Ab. 65, pi. 5. 2 Buls. 137. \w) 1 Lev. 138. (x) 1 Sid. 442. \y) 1 Roll. Ab. 66. Raym. 81. Ow. 47. 1 Sid. 278. 8 Leon. 170. (z) Moor. 760. Noy. 101. Dy. 302. 1 Hawk. P. C. c. 70. s. 10. \a) 1 Roll. 431. 1 Sid. 16, 155, 451. 1 Roll. Ab. 66. Winch, 40, 90. 1 Leon, 101. 3 Leon, 231. Cro. Eliz. 296, 853. 3 Ruls. 265. (6) Cro. Eliz. 166. Yelv. 146. 3 Buls. 265. 358 OF THE INSTRUMENTS, ETC., OF WHICH [bOOK IV. crimes are wholly disregarded by the common law, as not deserving a public prosecution ; and that the opinion of their being punishable by no law seems not to be maintainable, since many of them are most cer- tainly punishable by force of the 3o Hen. 8, c. 1 ; and that it cannot be a convincing argument that they are not punishable by the common law, because ihey are of a private nature, as much as other writings con- cerning other matters ; no one being ready to affirm that the making of a false deed concerning a private matter is not punishable at common law. He further says that, perhaps it may be reasonable to make this distinction between the counterfeiting of such writings, the forgery whereof, as in the above cases, is properly punishable as forgery, and the counterfeiting of other writings of an inferior nature : that the for- mer is in itself criminal, whether any third person be actually injured thereby or not; but that the latter is no crime, unless some one receive a prejudice from it.(r) It is observed as no matter of surprise to find so able a writer as Hawkins treading with so much caution in a path, now indeed too well beaten ; but which, previous to the time of the Revolution, when paper securities became much more common, had been but little explored. (c7) But with respect to the foregoing distinction which he takes between the counterfeiting of such writings, the forging whereof is properly punishable as forgery, and the counterfeiting of other writings of an inferior nature, it is said that, however plausible this may be, it is by no means a solution of the difficulty but a mere conjecture, which leaves the crime of forgery as indistinct in principle as before, and tends to confound it with the general class of cheats ;('e) and that it does not appear upon full consideration of the books to which he refers, that it is anywhere adjudged, or is even generally laid down, that the counter- feiting of writings of any sort, whereby any person may receive a pre- judice, if done hicri causa or malo animo, is not punishable as for- gery. (/) It is also observed, that those books which seem at first sight most strongly to warrant the notion that writings of an inferior nature, such as letters, are not the subjects of forgery at commm law, if fairly considered and compared, amount to no more than this, that the impu- tation of counterfeiting letters or writings frivolous or of no moment; or from whence no damage could ensue, or of uncertain signification, is not actionable ; and that such letters or writings are incapable, from their substance, not from their form, of supporting a charge of forgery, the chief ingredients of which offence are fraud and intention to deceive. (^) Rule now The points to which this discussion relates were fully considered in settled that ^j^g followino; important case, in which it was helden that the counter- the COUn- /.i • r- n 11-1 terfeitingoffeiting of a release, or acquittance for a sum of money, though without any writing gg^i ^.^^ foriiery ; and that it would be a most injurious notion, and with a frau- ' n ■ \ i ■ -i n ■ ^^ duknt in- even a renection on the common law, to suppose it so derective as not tent where -to provide a remedy against off'ences of this nature. (7i) And this case nmybepre-is considered as having now settled the rule, that the counterfeiting of {r\ 1 Hawk. P. C. c. 70, s. It. (d) 2 East, P. C. c. 19, s. 1, p. 859. (f ) 2 East, P. C. c. 19, s. 7, p. 859. And as to the distinction between forgery and cheats, see ante, 280, note (r). (f) 2 East, P. C. c. 18, s. 7, p. 860. (g) Id. ibib. (h) Bac. Ab. Forgery (B). CHAP. XXXII. § II.] FORGERY MAY BE COMMITTED. 358 any writing with a fraudulent intent, wherehy another may he ^jr^'w-judiced is diced, isforfjenj at common law.(i)-\ common"^ *The attorney -general, by order of the House of Lords, filed an infor- law. matiou against the defendant John ^Yard, which charged that he being *359 bound to deliver 315 tons and a quarter of alum, of the value of 1000/. Ward's to the Duke of Buckingham, at a certain day then past, wickedly con- S^?*°- triving and intending the said duke of the said alum to deceive and aa ordor to defraud, and with a wicked and fraudulent intent to avoid the delivery chargo of the said alum on &c. at &c., with force and arms, upon the back of „^^,),i^ to a certain certificate in writing, signed by one A. N., falsely forged and •■iccount, counterfeited, and caused to be forced and counterfeited, a certain VI, . -?..?£' ^ ^ ' o / propriiLio writing in the words and figures following : part of tho " Schedule Tons C. 660 5 315 5 975 10 proceeds to the defend- " Mr. John Ward. I do hereby order ant's own >■ you to eharf^c the quantity of G60 tons ^"'-^ "'''' •' G y J iiiti'iit to and 1 quarter of alum, to my account, dofraiiil, part of the quantity here mentioned in *". No this certificate; and out of the money arising by the sale of the alum gu-^.^t^j . in your hands to pay Mr. W. Ward and yourself 10/. for every ton but it was according to agreement; and for your so doing this shall be your ) a protection from a member of parliament,('(^) with several other cases. (r) And the offence of forgery was distinguished from cheats at common law upon the 33 Hen. 8, c. 1, where the party received an actual prejudice, which was considered not to be necessary to constitute forgery, in which it was sufficient if the party might be thereby prejudiced. (s) Fawcett's In a subsequent case Leandcr Fawcett, who had been committed to f^f^'ri '^^^'^^^ g^ol ^* York, under an attachment, sued out of the Court of King's having Bench, for a contempt in a civil suit, was indicted for forging a certain iieen com- writing, purporting to be signed in the name of A. Dawson, (the party ™oi^under "^^'^o ^''^^ prosecuted the writ of attachment against him) and to contain an attach- the authority of Dawson to the sheriff for his discharge in the following Ton^empt in ^0™ " ^"^ ^^^ ^^S^ sheriff of the county of York, his deputy, &c., ;i civil and gaoler. — As to any writ, attachment, or any other process or cause cause, whatsoever, at the suit, instance, or promotion of me A. Dawson, by ed a pre- reason whereof Leander Fawcett is now detained a prisoner in your ended dis- custody, you may forthwith discharge and set at liberty him, the said rcon^his Leander Fawcett, unless detained at the suit of some other person; and (/) Ward's case, Ilil. 13 Geo. 1. 2 Str. 747. 2 Lord Raym. 14G1. 2 East, P. C. c. 19, s. 7, p. 861. (k) Savage, Styles, 12. (Z) Sheldon's case, Hil. 34 Car. 2, Rot. 35. Rex v. Ward, (a brother of the present defen- dant,) Mich. 6 Geo. 1. (m) Stocker's case, 5 Mod. 137. 1 Salk. 342. The court held the indictment ill for uncer- tainty ; but not because the offence was not forgery at common law. (n) Rex V. Ferrers, 1 Sid. 278, and the record is in Trem. Entr. 129 (o) Farr's case, T. Raym. 81. (p) Dudley's case, 2 Sid. 71. 3 Leon, 170. (q) Deakin's case, 1 Sid. 142, ante, p. 338. (r) See 2 Bast, P. C. c. 19, s. 7, p. 862, note (ff), where Rex v. Hales and Kinnerly, 9 St. Tr. 77, ibid. 93. Rex v. Gibson, 1 Sess. Cas. 428, and ibid. 432, are referred to, as relating to promissory notes and indorsements ; and a reference is made upon the suliject in general to 13 Vin. Ab. 4G0. Trem. P. C. 100. 2 Show. 20. O'Brian's case, 7 Mod. 378. 2 Sess. Cas. 366. 2 Str. 1144. (s) 2 East, P. C. c. 19, s. 7, p. 862. And see Wilcox's case, Russ. & Ry. 50, where a doubt was entertained whether the offence came under the denomination of a forgery at commou law. Falsely putting a witness's name to a bond which is not required to have a subscribing witness, does not vititate the bond, and is not forgery. State v. Gherkin, 7 Iredell, N. C. 206. Falsely, wittingly and corruptly rubbing out, erasing or obliterating a release or acquit- tance, on the back of a note or bond, or elsewhere, does not, according to the law of North Carolina, amount to the crime of forgery. State v. Thoviburg, 6 Iredell, N. C. 79. The forged making of an acceptance, of a conditional order for the delivery of goods, is forgery at common law. The Commomoealth v. Ayer, 3 Gushing, 150. A. gave a receipt to B. acknowledging the receipt of money in part payment, and such receipt was subsequently altered so as to read in full up to date: held that such alteration was a forgery, as forgery consists in altering the paper in a material part to the injury of another as well in whole as in part. The State v. Floyd, 5 Strubhart, 58.] CHAP. XXXII. § II.] FORGERY MAT BE COMMITTED. 8G0 for so doing this shall be your warraut and indemnity. (Dated) 26th creditor to Feb, 1793. (Signed) A. Dawson, and witnes.scd by one 11. "\V." The ^^j^g^^l^^^ defendant having been convicted, several questions were submitted to umlor the consideration of the judges; and, amongst others, whether the order ^^^^j^^j^J^" were a matter of such a public nature, that the counterfeiting of it his dis- would be a forgery at common law : and also, whether, as the attach- ^har-o P /. ^ ^ -r ■ from gaol ; ment was not for non-payment oi money, the order, if genuine, would and it was not have been a mere nullity, and the sheriff not authorized todi.schargc^"^^'^''".'^'' the prisoner under it. Lord Kcnyon, C. J., and Eyre, C. J., said, that mp^nor at ' there was an injury to a third person, and that it was an interruption cunuuon to public justice: but the latter thought it was not a forgery but a ^^^' cheat. The matter was adjourned to a subsequent term, when Eyre, C. J., was still not satisfied as to the forgery; though he tliought the in- dictment good as for a cheat. But all the judges concurred in holding that the offence was indictable as for a misdemeanor at common law ; and a great majority also thought it was a forgery at common law.(^) So forging an order from a magistrate to a gaoler to discharge a *3G1 prisoner, as upon bail having been given, is forgery at common law. Forging an *The prisoner was indicted for a misdemeanor for forging the foUow- ordcr from a inagii- ing instrument : trato to a gaoler to discharge :i prisoner. " Sir, " I do hereby authorize you to discharge R. Harris from your county gaol, (Jxford, as J. Mace and J. Anker arc become sureties, and bound in a bond of 40^. each for his appearance at the next General Quarter Sessions, Oxford, before me J. AV. Jones, one of his majesty's justices of the peace for the said county of Oxford. " I am, your's respectfully, " J. W. Jones. "To the Governor of the County Gaol, Oxford." It appeared that Harris, being a prisoner in the county gaol for want of sureties for his appearance at the said sessions, caused the said letter to be written and conveyed to the governor of the gaol. The governor stated the usual course to be that where a man was in custody merely for want of sureties, and the governor received a letter from a magis- trate of the county, certifying that sureties had been entered into before him, the governor discharged such prisoner upon entering into his own recognizances before a magistrate in the neighbourhood: but he stated that he certainly should not have discharged the prisoner, as he did not believe the letter was in the hand writing of Mr. Jones. Tindal, C. J., felt some doubt whether the counterfeiting the letter amounted to for- gery at common law, and reserved the point for the consideration of the judges, who held the conviction right. (?<) Where the defendant was indicted for forging a county court sum- mons, and the paper in question was a printed form of a distringas, county * (t) Fawcett's case, York Spr. Ass. 1T93, and East. T. 1793. 2 East, P. C. c. 19, s. 7, p. 8C2. And sec the note (a), in which the learned writer says, that Mr. Justice BuUcrs MS. only made a quaere as to the opinion of Eyre, C. J., but that it aj)pcared from the MSS. as well as Mr. Justice Buller's, that the judges all concurred to sustain the conviction on the general ground only before mentioned. {ti) Rex V. Harris," R. & M. C. C. R. 393. 5 C. & P. 129. ■ Eng. Com. Law Reps. ssv. 315. 361 OF FORGERY. — OF THE FRAUD AND DECEIT, ETC. [BOOK IV. court summons. which had had the words respecting the distraining struck out with a pen, and the word " summon " inserted instead, and it appeared that when the county court clerk was absent, the clerks in the office, if they were busy, sometimes gave out blank summonses to the attornies, who filled them up themselves: Batterson, J., said, "It is highly irregular; but I know that these summonses are sometimes given out in blank. I am not prepared to say, that after the notice that this trial will give parties, as to the impropriety of the practice, I should not hold that this mode of filling up a summons, or altering a distringas into a summons, was not forgery. "(f) SECT. III. Of tho fraud and deceit to the preju- dice of another's right. *362 Intent to deceive. Of the Fraud and Deceit to the Prejudice of Another^s Rltjlit. With respect to the fraud and deceit, to the prejudice of another's right, it should always be kept in mind, that though in cases of forgery, properly so called, it is, as we have seen,(?r) immaterial whether any person be actually injured or not, provided he may he *thereby preju- diced, yet the fraud and intention to deceive constitute the chief in- gredients of the oiFence."}" Thus Buller, J., speaks of it as the making a false instrument "with intent to deceive ;"(w«(;) and Eyre, B., as a false signature made, "with intent to deceive. "(a:) And it is observed, that in the word " deceive" must doubtless be intended to be included an intent to defraud; (7/) and that the offence was accordingly defined by Grose, J., as the false making a note or other instrument " with intent to defraud. "(/w) Eyre, B., also in another case defined the oflfence to be the false making an instrument which purports on the face of it to be good and valid, for the purposes for which it was created " with a de- sign to defraud. "(a) And it has been argued, that it is no answer to a charge of forgery to say that there was no special intent to defraud any particular person, because a general intent to defraud is sufficient to constitute the crime; for if a person do an act the pro&a&Ze consequence of which is to defraud, it will, in contemplation of law, constitute a fraudulent intent. (i) And it has been holden, that in an indictment for forgery, it is sufficient to aver a general intent to defraud a certain per- son, which intention may be made out by the facts in evidence at the trial. (c) {v) Rex V. Collier,* 5 C. & P. IGO. [iv] Ward's case, ante, p. 359. [wiv) Coogan's case, 1787. 2 East, P, C. c. 19, s. 1, p. 853, and s. 43, p. 948. Ante, p. 34G. (x) Taylor's case, 1779. 2 East, P. C. c. 19, s. 1, p. 853, and s. 47, p. 960. («/) 2 East, P. C. c. 19, s. 1, p. 853. (z) Rex V. Parkes and Brown, 1797. 2 East, P. C. c. 19, s. 1, p. 853, and s. 49, p. 963. 2 Leach, 775. {a) Rex V. Jones and Palmer, 1785. 1 Leach, 366. \b) By Shepherd arguendo in Tatlack v. Harris, 3 T. R. 176, and it is observed in 1 Leach, 216, note (a), that this doctrine was seemingly adopted by the court. fc) Powell's case, 1 Leach, 77. It is observed, however, that in Rex v. Bigg, 3 P. Wms. f [It is not now held to be essential to the offence of forgery in any case that some one must have been injured. It is sufficient if the instrument forged, supposing it to be forged, might have been prejudicial. Arnold v. Cost, 3 Gill & Johns. 220. See U. States v. Moses, 4 Wash. C. C. Rep. 726.] * Eng. Com. Law Reps. sxv. 255. CHAP. XXXII. § III.] FRAUD AND DECEIT, ETC. 362 Forging a bill of exchange payable to the prisoner's own order, and uttering it without indorsement as a security for a debt was holdeu to be a complete offence. (r/) The offence of disposing of and putting away forged bank-notes was holdca to bo complete, though the person to whom they were disposed of was an agent for the bank to detect utterers, and applied to the prisoner to purchase forged notes, and had them delivered to him as forged notes for the purpose of disposing of them. The judges held that if the prisoner put the notes off with intent to defraud, the intent existing in the mind was the essence of the crime, although from cir- cumstances of which he was not apprised, he could not in fact defraud the prosecutor. ((=) Uttering a forged stock receipt to the person who employed the pri- soner to buy stock to the amount therein specified, and had advanced the money, was held to be sufficient evidence of an intent to dtfrauil that person ; and it was also holden that the oath of the person to whom the receipt was uttered, that he believed the prisoner had no such in- tent, did not repel the presumption of an intent to defraud. (/) If a person gives his employer a forged receipt for money, with intent *3G3 to make the employer believe that money already obtained *has been <^iTins an applied in a certain way, he is guilty of uttering with intent to defraud forged re-' his employer. Upon an indictment for forging and uttering the follow- ccipt with • . intent to ing receipt : ^^^ke him boliovo that " May 4. Mr. Martin Bought of Laing and Son. '«°"°y ^^ J ^ . . , lore receiv- '' Wholesale Druggists, Bristol. Oilhasbocn " Six quarts of Settlcdated Striking Acid. expenilodis " Settled, £i. Sam. HuanES." It appeared that the prisoner was intrusted by Miss Welsh to carry on a tanning business, and that on the 3d of ^lay, he told her, that if she would let him have 4/., he could procure a liquid which would save a great deal of money in bark; that there was a person going to Bristol, and it could only be procured there or in London. She let him have the AI. On the 5th of May, the prisoner gave her the document in question, and said it was the receipt for the essence he had purchased in Bristol. No such firm as Laing and Son existed, nor any such per- son as Hughes, connected with any druggist at Bristol, nor any such article as settlcdated striking acid; and the document was proved to have been printed at Gloucester, the manuscript having been taken to the pi-intcr by the prisoner's daughter. The counsel for the prisoner objected that there was no evidence of an intent to defraud Miss Welsh ; she had already parted with her money under a false representation, and the offence, if any, was that of obtaining money under false pre- tences. They distinguished Ilex v. Shcpp:ird,(y) because there the 419, it wag hoMen not to be an objection to a special verdict that the forgery was not found to have been committed for the sake of the lucre, or to defraud the party. 2 East, P. C. c. 19. s. 3, p. 854. (d) Hex V. I5irkctt, Russ. & Ry. 8G, post. (c) Rex 1). Iloldou, Rus."?. & Ry. 154, and it was lioldcn that tlie indirtnuMit need not state to whom the note was disposed of, it being sufTuicnt to state that the prisoner disposf^d of the note with intent to defraud the bank, lie knowing it at tlie time to be forged. (/) Rex !'. Sheppard, Russ. & Ry. 1G9. Iff) Supra, p. 3G2. 363 OF FORGERY. — OF THE FRAUD AND DECEIT, ETC. [BOOK IV. money was given at the same time that the receipt was produced ; here, nothing was over said about a receipt at the time of obtaining the money ; and the giving it afterwards was the mere voluntary act of the prisoner, and could not in any way defraud Miss Welsh. It was an- swered, that the prisoner was accountable to Miss Welsh for the appli- cation of the 4?. to the purpose for which he had obtained it, and, therefore, that the forged receipt was part of the fraud. Patteson, J., was of this opinion, and told the jury that if they believed the prisoner to have uttered the forged receipt for the purpose of deceiving Miss Welsh into a belief that he had applied the 4/. to the purpose for which he had obtained it, such purpose being a mere pretence and fraud, they might find him guilty of uttering it with intent to defraud her. The jury found the prisoner guilty, and upon a case reserved, upon the question whether the learned judge was right in directing the jury as above stated, the judges were unanimously of opinion that the direction was right. (7t) So where on an indictment for forging the following receipt : Overseer uttering a forged re- ceipt for county rate with intent to defraud the high constable. *364 « £16 15s. Qd. 6th January, 1830. " For the High Constable, " James Hughes." with intent to defraud E. Grrundy, it appeared that the prisoner in 1830, and for many successive years down to 1887, had been assistant over- seer of Rivington, and that he was in the habit of receiving warrants from Mr. Grundy, the high constable of the *hundred, ordering him to levy on the inhabitants of Rivington their quota of the county rate. In 1830, having levied to the amount of 11?. 5s. Qd., he paid that sum into a bank at Manchester, to the credit of the high constable, and the clerk of the bank gave him a receipt for 11?. 5s. Qd. In 1838, the prisoner was removed from his office, and handed over to his successor a great bundle of papers, amongst which the receipt in question was found, but the figures had been altered from 11?. 5s. Qd. to 16?. 15s. 6^. The prisoner's accounts had been passed and allowed from time to time. It was contended that there was no felonious uttering of the receipt ; it was not delivered over by him with any intention that it should be used as a voucher. His own accounts had been settled, and the time for auditing them had passed. There was no evidence of any intent to defraud the high constable, or that the utterance of the instrument in its altered form would have that effect. Alderson, B., " I am of opinion, that if the prisoner handed the receipt over to his successor as one of his vouchers, knowing that the figures had been fraudulently altered, he was thereby guilty of a felonious uttering, and that the intention is correctly described to be that of defrauding Grundy the high constable ; for what is the necessary effect of so handing over the altered receipt? The parish would discover from that receipt that the high constable had been paid 16?. 15s. 6f?. instead of 11?. 5s. 6r?. (to which latter sum only he was entitled) ; and the effect would be, that the high constable becomes liable to refund to the parish the sum which the receipt showed that he received in excess. That being the necessary consequence of the pri- soner's act, it must be presumed that he intended it, and no proof of such actual intention is necessary. That has been ruled by all the {h) Rex V. Martin, R. & M. C. C. R. 483. S. C. 7 C. & P. 549. CHAP. XXXII. § III.] OF THE FRAUD AND DECEIT, ETC. 3G4 judges, in a case reserved, (/t/i) in consequence of a supposed opinion of Lord Abinger to a different effect. The lapse of time can make no substantial difference. Supposing a party forges a receipt for the pay- ment of a debt of more than six years' standing, it is true the debtor might bo already protected by the statute of limitations, but still the forged receipt would alter the position in which the creditor would stand, and it would clearly be a felonious forgcry."(<) The fact that the prisoner has given guaranties to his bankers, to Ouar.im. ..-^ whom he paid a forged note, to a larger amount than the note, does not^'^"" ''* completely negative the intent to defraud the bankers. Upon an indict- which a ment for forging and uttering a forged promissory note for 501. with |''>'"ged bill intent to defraud the Gloucestershire Banking Company, it appeared j^ noj *" that the prisoner had deposited with them three guaranties for 100/. pt'gitivc an each, signed by his brothers, by which they undertook to be answera- d°fr°uj ' ble, if he overdrew his account, and it was admitted that at the time of the trial he did not owe the bankers anything. It was submitted that there could be no intent to defraud the bankers, as they held guaranties to a much larger amount than the note. Patteson, J., " It is impossi- ble for me to say that at the time this note was given to the bankers, the prisoner, because he had given guaranties, had no intent to defraud ; that is a question for the jury. "(A *Knowingly uttering a bill of exchange, all the names of which are *365 fictitious, is within the forgery statutes, though the party uttering in- Knowingly tended to provide for the payment of the bill, the fact of the parties not f "*^"j k-'?i being real not being known to the person taking the bill. The prisoner to a person was tried for uttering a forged bill of exchange with intent to defraud m^-aning S. Minor, and it appeared that the parties to the bill were all fictitious should be- persons, and that circumstance was fully known to the prisoner at the ^icvc it to time he uttered it to S. Minor, and no doubt existed, therefoi'C, that the is^sulnci'ont^ names were forged, and the bill was uttered by the prisoner with the although full knowledge of that fact. There was, however, reason to contend ^'^f ""';"" lb. xxiv. 337. "^Hi. xxiv. 255. 367 OF FORGERY. [BOOK IV. But as the fraud and intention to deceive, by imposing upon the world that as the act of another, which he never consented to, are the chief ingredients which constitute this offence, so it hath been holden, that he who writes a deed in another's name, and seals it in his pre- sence, and by his command, is not guilty of forgery, because the law looks upon this as the other's hand and sealing, being done by his ap- probation and command. («) So, if a man writes a will for another without any directions from him, and he for whom it is written becomes non conijws before it is brought to him, it is not forgery j for it is not the bare writing of an instrument in another's name, without his privity, but the giving it a false appearance of having been executed by him, which makes a man guilty of forgery. (x) Also he cannot be punished as guilty of forgery who raises the word Ulris out of a bond made to himself, and substi- tutes marcis, because here is no appearance of a fraudulent design to cheat another, and the alteration is prejudicial to none but to him who makes it, whose security for his money is wholly avoided by it ; yet this it seems would be forgery if by the circumstances of the case it should in any way appear to have been done with any view of gaining an advantage to the party himself, or of prejudicing a third person : and it is holden, that such an alteration, even without these circumstances, is a misdemeanor; though it do not amount to forgery.(y) So that it is well observed, that at any rate it is very dangerous to tamper in these matters. (~) *368 *SECT. IV. Of Principals and Accessories. Of princi- It has been stated in a former part of this work, that it is laid down palsan(iac-ggjjgj.a}ly in \\^q books, that all are princijjcds in forgery; and that whatever would make a man accessory before the fact in felony, would make him a principal in forgery : but that it is conceived, this must be understood of forgery at common law, and where it is considered only as a misdemeanor. (a) And with respect to a case(&) upon the 5 Eliz. c. 14, which would seem to lead to a contrary conclusion, it is else- where observed that, from its circumstances there seems no reason for taking that case out of the general rule, that when a statute makes a new felony, it incidentally and necessarily draws after it all the con- comitants of felony, namely, accessories before and after, (c) And this Scares doctrine is confirmed by several cases. Atkinson, Three prisoners, Soares, Atkinson, and Brighton, were charged by and Brigh- ^^^ indictment with feloniously uttering; and publishius; as true a certain ton s cusG. o IT o Where it false, forged and counterfeit bank note for 5^. knowing it to be forged, appeared ^q_^ ^ith intent to defraud the governor and company of the Bank of (m) 1 Hawk. P. C. c. 70, s. 2, and Bac. Ab. Forgery (A). (x) Moor. 760. 1 Hawk. P. C. c. TO, s. 5. Back. Ab. Forgery (A). \y) 1 Hawk. P. C. c. 70, s. 4. Bac. Ab. Forgery (A). As to the rasure of deeds see Shep. Touch. G8, 69. (z) 2 East, P. C. c. 19, s. 3, p. 854. [a) Ante, vol. 1, p. 33. (b) Bothe's case, Moor. 666. Ante, vol. 1, p. 33, note (y). (c) 2 East, P. C. c. 19, s. 52, p. 973, 974. And see ante, vol. 1, p. 34, et seq. CHAP. XXXII. § IV.] OF PRINCIPALS AND ACCESSORIES. 368 England. And the indictment also contained the otber usual counts, tl'at two of for forging, and for disposing of and putting away tlie note, with the l^l we'ro °" like intent; together with counts stating the intent to be, to defraud the i>n\y to tbo person to whom it was offered in payment. It was proved that the "'''''■'"§ "^ • T.-1 rr T 1 ... •• a forged prisoner, Brighton, oifered the note in question in payment for a pair ofnotobyprc- gaiters at a shop in Gosport, and that the other two prisoners, Soares ^'''"^ ?°°- and Atkinson, were not with Brighton at the time he so oifered the tho other note, but were waiting at Portsmouth till he should return to them, it prisoner having been previously concerted hcticccn the three prisoners ^^''^^JL uacr^d Brighton should go over the water from Portsmouth to Gosport, for the it; imt that jiurposc of passing the note, and when he had passed it, should return ''"i^ ^'''^° . to join the other two prisoners at Portsmouth; they all three knowinj at tho fact that it was a forged note, and having been concerned together jn ['("''"^uttcr- putting off another note of the same sort, and in sharing the produce holdcn that among them. Upon this evidence, the counsel for the prisoners Soares 'l^cy woro and Atkinson objected, on their behalf, that they were not guilty of the "jeforrtho charge made against them in this indictment, not having been present fact ami at the time the other prisoner uttered the note, nor so near as to be able forrontu"' to aid and assist him; and that they could be charged only as acccs- tied to au sorics before the fact. The iury found that the foryed note was uttered fi<^a"'ttalon by the prisoner Brighton, in concert with the other two prisoners, and mcnt found them all three guilty. The prisoner ]3righton was left for execu- charging tion; but judgment was respited as to the other two, whose case was priucipais. referred to the consideration of the judges, who had no doubt that they *3G9 were entitled to an acquittal on this indictment charging them *as prin- cipals, they not being present at the time of the uttering, or so near as to be able to afford any assistance to the accomplice who actually uttered the note. The prosecutor was, therefore, required to state on what grounds the contrary was meant to be argued ; and no suggestion of the kind being made, the two prisoners were recommended for a pardon. ((/) So in a late case at the Old Bailey, Graham, B., is reported to have Construc- said, " It has frequently been held that what would amount to a con- gen'co'.'^"' structivc presence at common law will not be sufficient upon an indict- ment under a statute. A case under this statute occurred before me at Derby. Two persons went in concert to utter a forged note ; one went into a shop to utter it, whilst the other remained at some little distance ill the street } it was objected that the latter was not liable as a princi- pal. I saved the point; and the judges were of opinion that the uttercr only was liable. (c) The case referred to by the learned judge was probably that of Rex V. Davis and Ilall, tried not at Derby, but at the Lent Assizes for Not- tingham, in the year ISOG, and in which it was holdcn not to be suffi- cient to make a person a principal in uttering a forged note, to prove that such person came with the utterer to the town in which it was uttered, went out with him from the inn at which they had put up a little before the time when it was uttered, joined him again in the street {(l) Rex V. Scares, Atkinson, and Brighton, East. T. 1802, 2 East, P. C. c. 19, s. 52, p. 974. Russ. & Ry. 25. And sec Rex v. Badcock aud others, Trin. T. 1813, Russ. & Ry. 249, and Rex V. Stewart and Dickens, East. T. 1818, Russ. k Ry. 363. [e) By Graham, B., in the case of Brady and others, for forging and uttering a check, 0. B. June, 1813. 1 Stark. Crim. Plead. 84, in the note. But see upon this subject, ante, vol. 1, p. 26, et seq. 369 OF FORGERY. [book IV. Construc- tive pro- senco ia the actual forgery. ^370 a little after the uttering, and at some little distance from the place of the uttering, and ran away when the uttercr was apprehended.^/) But it has been holdcu that where several persons were in combina- tion, and jointly co-operated in making forged Bank of England notes, they were all guilty as principals, though each of them executed by himself a distinct part of the forgery, and though one of them was not present when the notes were completed by the signature. (y) So also if several make distinct parts of a forged instrument, each is a principal, though he does not know by whom the other parts are ex- ecuted, and though it is finished by one alone, in the absence of the others. (/i) So also the makers of the paper and plate respectively for the purpose of forging a note, afterwards filled up by a third person, are principals in the forgery with that person, though each executed his part in the absence of the others, and without knowing by whom the other parts were executed. (Q But where three persons were jointly indicted under the 1 Wm. 4, c. 66, s. 19, for feloniously using plates containing impressions of forged foreign notes, it was held that the jury must select some one particular time after all three had become connected, and must be satisfied, in or- der to convict them, that at such time they were all *either present together at one act of using, or assisted in one such act, as by two using, and one watching at the door to prevent the others being disturbed, or the like; and that it was not sufficient to show that the parties were general dealers in forged notes, and that at diflFerent times they had singly used the plates, and were individually in possession of forged notes taken from them.(y) And where three persons were indicted under the same section, for feloniously engraving a promissory note of the Emperor of Russia, and it appeared that the plates were engraved by an Englishman, who was an innocent agent, and two of the prisoners only were present at the time when the order was given for engraving the plates, but they said they were employed to get it done by a third person, and there was some evidence to connect the third prisoner with the other two in sub- sequent parts of the transaction ; it was held that in order to find all three guilty, the jury must be satisfied that they jointly employed the engraver, but that it was not necessary that they should all be present when the order was given, as it would be sufficient if one first commu- nicated with the other two, and all three concurred in the employment of the engraver. (A:) In the following case a wife was indicted as a principal in a forgery on the 49 Geo. 3, c. 123, s. 13, and her husband as an accessory before the fact at common law. The indictment charged Sarah Morris with forging an order and certificate for receiving prize-money, which had become due to one Henry Taylor, a petty officer in the naval service, with intent to defraud the commissioners of Greenwich Hospital; and John Morris with inciting, counselling, aiding, procuring, &c., the said Morris's case. Where a wife by the incitement of her hus- band but in hisabsencCj knowingly (/) Rex V. Davis and Hall, cor. Graham, B., Nottingham Lent Ass. 180G, andEast. T. 1806, Russ. & Ry. 113. {g) Rex V. Bingley and others, Russ. & Ry. 446. {h) Rex V. Kirkwood, R. & M. C. C. R. 304, ante, vol. 1, p. 33, 34. {i) Rex V. Dale, R. & M. C. C. R. SOT, ante, vol. 1, p. 33, 34. (/) Rex V. Harris,'' 7 C. & P. 416, Littledale and Gaselee, Js. \}c) Reg. V. Mazeau,'' 9 C. & P. 676. Patteson, J. » Eng. Com. Law, Reps, xxxii. 564. ^ Yo xxxviii. 286. CHAP. XXXII. § IV.] OF PRINCIPALS AND ACCESSORIES. 370 Sarah Morris to commit the said felony. The second count charged uttered a Sarah Morris with having knowingly uttered the order and the certifi- j^fr^^^j"^" cate by the incitement of John Morris. And there were many other cortifieato counts in which the offence was charged with some variations. It ap- ^"f '.^^ '"*'' ^ » coiving of pcared that II. Taylor, whose name purported to be subscribed to the i.rizc-mo- order, was, in the year 1811, a petty officer on board his majesty's ^"y' '' '"^^ frigate the Frederickstein ; and in such capacity became entitled to a ti.ut thcj- share of certain prize-money arising from the capture of a rich vessel. |n>Kht bo In November, 1813, the prisoner, Sarah IMorris, who was the wife of t"jjj,^jjjer. the other prisoner, John Morris, and real or pretended daughter of II. tho wife ns Taylor, applied to a clerk in the check office, in Greenwich Hospital, o„''i7ie*'49''^ for the payment of the prize-money due to H. Taylor : and produced at (ie... 3, c. the same time the order stated in the indictment. She was desired to 12.?, and call again in about ten days, and went away leaving the order with the band as an clerk. But in about four or five days she came again, and expressed accessory great anxiety to be immediately paid the monc}', when she was told f„gt ^^ g^m. that the money had not yet come in : and the order was given back to mon law. her with a request that she would not apply again until she was duly informed that the money had been remitted to the office. Almost im- mediately after this second visit, the other prisoner, John Morris, wrote a letter to the clerk of the check on the subject. On the 8th Decem- ber, notice was given *to Sarah Morris that the prize-money was come *371 in, and that she might receive the share of it, to which H. Taylor was entitled : upon which she went to the office with the same order and certificate, which she produced; and had nearly obtained the warrant for the payment of the money, when circumstances occurred which caused suspicion, and she and her husband were shortly afterwards ap- prehended. It was also proved that II. Taylor, who.se name purported to be signed to the order, could not write, and was obliged always to make a mark whenever his signature was required ; and that the name of the officer, by whom the certificate purported to be subscribed, was not in his handwriting. The landlord of the house in which the pri- soners lodged, stated that the prisoner, John Morris, had, in two or three instances, ordered his wife, Sarah Morris, to go to Greenwich Hos- pital respecting about 30^. of prize-money due to II. Taylor, his wife's father; that he was constantly talking of having been II. Taylor's ship- mate; that, at one time, Sarah Morris told her husband that she had been to Greenwich ; that the prize-money was not then ready ; that the office had not yet received it; and that he, the witness, had lent the prisoner, John Morris, money upon a belief that he had prize-money to receive. He also swore that he really believed that Sarah Morris went to receive it in obedience to her husband's orders. And, as to this fact, it was proved that the prisoner, John Morris, had signed a paper, stat- ing that his wife had acted in this business entirely under his orders and directions. It was also proved by a witness who had formerly been a captain's clerk in the navy, that in November, 1813, the prisoner, John Morris, represented to him that there was about 30^. prize-money due to his father-in-law, H. Taylor, as a caulker in the Frederickstein frigate; that he did not like to go to a Jew upon the subject; and that he would be obliged to him if he would fill up the blanks in certain papers which he produced; that the witness accordingly filled up the blanks, excepting the signatures; and that, on observing there was a spare half sheet to the papers he so filled up, he advised the prisoner, 371 OF FORGERY. [BOOK IV. John Morris, to send it by the post to his father-in-law ; but that lie re- plied that his wife was going to Portsmouth, on board the Gladiator, and that she would get it done. This witness further stated, that he afterwards met the prisoner, John Morris, who then told him that he had got the papers regularly signed by H. Taylor and the captain ; and that he was going to send his wife to Greenwich Hospital for the money. Upon this evidence it was submitted by the counsel for the prisoners, that Sarah Morris, in the part she took in this transaction, had clearly acted under the directions and coercion of her husband, she could not be found guilty 3(?) and that if she was innocent as a principal, the other prisoner could not be guilty as an accessory. And the jury hav- ing found both the prisoners guilty, the case was reserved for the con- sideration of the twelve judges ; who were unanimously of opinion that the prisoner, Sarah Morris, was guilty of uttering the forged instru- ment, knowing it to be forged; and that the prisoner, John Morris, her husband, was guilty of the offence with which he was charged in the indictment, namely, that of an accessory before the fact at common law.(w) *372 *It is said by Lord Coke, that to cause is to procure or counsel one Of causing, to forge; to assent is to give his assent or agreement afterwards to the and con-^' Procurement or counsel of another ; to consent is to agree at the time seating. of the procurement or counsel, and he in law is a procurer. (w) But it is observed, that the assent here mentioned must be understood of an assent to the design of forging, before the fact of the forgery commit- ted ;(o) since according to Lord Hale, an assent after the fact committed makes not the party assenting guilty or principal in the forging ; but it must be a precedent or concomitant assent, (j)) Trial of ac- By the general provisions of the 7 Geo. 4, c. 64, ss. 9, 10, accessories before the fact may be tried as such, or for a substantive felony ; and all accessories may be tried by any court which has jurisdiction to try the principal felon, although the offence may have been committed on the seas or abroad ; and if the offences have been committed in different counties, the accessories may be tried in either. (5) cessones. SECT. V. Of the Indictment, Trial, Evidence, and Punishment. Of the in- It now remains, in conclusion of this chapter, to mention some of t^-'^\"^l"*' ^^^ points of general application concerning the indictment, trial, evi- dence, and punishment in cases of forgery. Of the in- It is usual to charge in the indictment that the party /rt?se?«/ forged WotT"^*' ^"^^ counterfeited, &c. ; but it is said to be enough to allege only that " falsely." he forged and counterfeited without adding falsely, which is sufficiently [l] Ante, vol. 1, p. IT, 212. (to) Rex V. Morris, East. T. 1814. 2 Leach, 1096. Russ. & Ry. 2T0. And see Rex v. Martha Hughes, ante, vol. 1, p. 22. (n) 3 Inst. 169. And in a strict sense he that causes a forgery to be done is a forger him- self : but then it ought to be so laid in the indictment. Per Cur. in Rex v. Stocker, 5 Mod. 138. (0) 2 East, P. C. c. 19, s. 52, p. 937. {p) 1 Hale, 684, (?) See the 1 Wm. 4, c. 66, s. 2^, post, p. 410. CHAP. XXXII. § v.] OF THE INDICTMENT, ETC. 372 implied in cither of those terms, particularly in the word to fonjc, which is always taken in an evil sense in our law.(r) It has been holden that an indictment is good, and not repugnant, although it state that the yysxiy falsely forged a false writing, (.s) It was essentially necessary formerly to an indictment for forgery, statement that the instrument alleged to be forged, should be set forth in words "f*^? ^^'■- and figures ;(^)f though, in general, figures must not be used in an ^^^.ut!°^ "^^ indictment. (?<) ]}ut "in order to prevent justice from being defeated by clerical or2 lb. xxxii. 566. Vol. II. — 25 375 OF FORGERY. [BOOK IV. a genuine Polish note, and a note, without these words, would not be received at the government offices. It was objected, that this transla- tion was inaccurate and insufficient, and the point was reserved for the consideration of the judges, who expressed no opinion upon it, as they held the conviction right upon another count, but it is said that they were -unanimously of opinion that the translation was imperfect. (A-Zi;) It is said to have been the opinion of the majority of the judges in the same case, that describing a foreign note wholly in the English lan- guage is not sufficient in an indictment for forgery, notwithstanding the 2 & 3 Wm, 4, c. 123, s. 3 -,{11) but this objection, provided the descrip- tion is in the words of the statute creating the offence, can only be taken advantage of by demurrer, and is cured, after verdict, by the 7 Geo. 4, c. 64, s. 21. (m) Where an indictment charged the uttering of a bill of exchange, which was as follows : "No. 6811. ^ Due 7th December. « St. Petersburgh, le 4 Aout, 1834. B. P. £500 stg. A quatre mois de date par cette lettre de change a I'ordre de nous-memes la somme de cinq cent livres sterling, value en moi-meme, qui passerez suivant I'avi de "No. 7800. Streight&Co." 497. " Messrs. Brown, Dan, Hamming, Dublin. " Payable, Londres." And which in English is as follows : " No. 6811. 8 Due 7th December. St Petersburgh, the 4th August, 1843. Good for £500 sterling. At four months' date by this bill of exchange, to the order of ourselves, the sum of five hundred pounds sterling, value in myself, which you will pass according to the advice of "No. 7800. Stieglitz & Co." 497. ^ " Messrs. Brown, Dan, Hamming, Dublin. " Payable, London." It was objected that this was not a bill of exchange, for that it con- tained no order to pay, and that the word " livres" did not mean pounds ; but, upon a case reserved after a verdict of guilty, the convic- tion was held right. ("») The recital of the instrument is usually prefaced by the words, " to *376 the tenor following, that is to say," &c., or "in the words *and figures following," which imports an exact copy. But where the indictment (kk) Rex V. Harris; Rex v. Moses; Rex v. Balls,'' 7 C. & P. 429, note (a). Rex v. War- shaner, alias Moses, R. & M. C. C. R. 46G. {U) Rex V. Iiarris,b 7 C. & P. 429, and note (a). [m) Ibid., and R. & M. C. C. R. 466, and see Rex v. Warshaner, ante, p. 3*73, where the description of the note is given ; the objections taken were, that the note ought to be stated to be a note in the foreign language, and then the meaning of it in English ; that it ought to be stated to be for the payment of foreign money, and that the value in English money should be stated, and that the 2 & 3 Wm. 4, c. 123, s. 3, does not extend to such notes. Sec. note {a), T C. & P. 431.= C. S. G. («) Re X V. Szudurskie, R. & M. C. C. R. 429. » Eng. Com. Law Reps, xxxii. 572. •> lb. xxxii. 5*71. = ib. xxxii. 572. CHAP. XXXII. § v.] OF TUE INDICTMENT, ETC. 376 was for forgiug a certain receipt for money, " as follows," and then set forth the receipt in words and figures, all the judges held that the words, « as follows," were to be taken as the same as, << according to the tenor following," or "in the words and figures following;" and that if the prosecutor had failed in evidence in proving the receipt verbatim as laid, it would have been a fatal variance. (o)f Therefore, though there be no technical form of words for expressing that the iustrument is set forth in words and figures, it is clear that the prosecutor cannot, by varying the terms in which he introduces the iustrument, relieve him- self from any accuracy which is otherwise requisite. (^;) But in setting forth the tenor of the iustrument, a mere literal vari- A literal ance will not vitiate the indictment. Thus where, upon an indictment ^•l''»n«'» which charged the prisoner with forging a bill of exchange, and con- vitiato. tained, in the bill set forth, the words "value received," and the bill produced in evidence, though otherwise corresponding with that set forth, was written, " value received" it was holden that tho variance was not material as it did not change the word.('/) So where the prisoner was indicted for uttering a bill of exchange, directed to Messrs. Masterman, Peters & Co., with a forged indorsement thereon ; and it was objected that there was a variance in the indictment, which imported to set out the bill according to its tenor inasmuch as the letter r in Messrs. was omitted, and the abbreviation Mess', might stand for words which Messrs. could not; the objection was overruled ; and the judges, upon the point being referred to them, held that the indictment was insuf- ficient. (/•) But, if by addition, omission, or alteration, the word is so changed as to become another word, the variance will bo fatal. (s.) In a case where the note charged to be forged set forth the atfesfd- tlon of the witness, and the words "Mary Wallace, her mark :" and it appeared that when the prisoner sub-seribed the note those parts of it were not written, it was doubted whether the prisoner had not in fact for-^ed a note difi"ering in the tenor of it from that set forth in the in- dictment. But it was holden upon consultation that the indictment was in this respect well proved. (<) *It is sufficient (except in the cases which will be presently mentioned) *377 (o) Powell's case, 2 Black. R. 787. 1 Leach. 77. 2 East, P. C. c. 19, s. 53, p. 97G, in which last book the learned -writer says, that he cannot but question Smith's case, Salk. 342, where it is said in the report that where a deed with the mark of I. S. was forged, the indictment need not set out the mark. {p) 3 Chit. Crim. L. 1040. [q) Hart's case, Worcester Lent Ass. 177G ; and before the judges, June 7th, 17TG, 1 Leach, 145. 2 East, P. C. c. 19, s. 54, p. 977. (r) Oldlield's case, cor. Baylc}', J., Durham Sum. Ass. 1811, MS. (.») Rex V. Bear, Carth. 4u7. Reg. v. Drake, Salk. CGI. 1 Stark. Crim. Plead, p. 255. 1 Chit. Crim. L. p. 294. And in Re.x v. Beach, Cowp. 229, where it was holden that in an indictment for forgery, a variance in writing the word under/ood instead of unders/ood, was not mate- rial, Lord Mansfield said, " The true distinction seems to be taken in Reg. v. Drake, which is this, that where the omission or addition of a letter docs not change the word so as to make it another word, the variance is not material." In Reg. v. Robson, 9 C. & P. 423, the first count had the words " guard curbs," but the instrument " guards curbs," and the ques- tion whether this was a variance was reserved, but not decided by the judges, the conviction being held right on anotlicr count. (/) Dunn's case, 0. B. 17G5. 3 East, P. C. c. 19. s. 53, p. 976. It appears that the Recorder at first entertained the doubt, which was removed on consultation with Perrott, B., and Aston J ■}■ jOn trial of an indictment for forging the promissory note of "the purport and cflFcct following, to wit, I promise, &c.,'' the note wa-; proved to be written, " I promised, &c." Held to be an immaterial variance, as the indictment did not profess to set OJt tlic note ac- cording to its tenor. 5 Pick. 279. Commonwealth v. Parmcntor.} 377 OF FORGERY. [bOOK IV. Of liiyin^' it to charge that the defendant forged such an instrument, naming it, and pai)or"^ setting forth the tenor ; but the laying it to be a paper writing, &c., writing, purporting to bc such an instrument (as the statute on which the indict- ymrporting jjjj^j^^ jg fnimed describes) is good ; and it is said that in strictness of to bo sueli , '' ° ' . . , . . . 1 . , nil iustrii- language there may be more propriety in so laying it, considering that uijiit, &c. tijQ purpose of the indictment is to disaffirm the reality of the instru- ment.(«) In a case where the prisoners had been convicted upon an indictment, charging them with publishing " as a true will, a certain false, forged, and counterfeited paper writing, pui-jwrthuj to he the last xvill of Sir A. C, &c. ; and setting out the tenor of the will, it was ob- jected that it ought to have been laid that they forged a certain loill, and not a paper writing, purporting to be the last will, &c., as the words of the statute are " shall forge a will." But, after a variety of precedents being produced, all the judges held it to be good either way. And it was also holden, that as the will was set forth in Jnec veLra, and three names appeared as witnesses, it was sufficient, without stating that it purported to be attested by three witnesses, (v) Carter's In a case where the prisoner was indicted for forging, and knowingly r^'""- . utterinsr a bill of exchange, which was described in the indictment to bc Wliero tho . . si.i-uatiiro "^ Certain bill of exchange requiring certain persons by the name and to a bill of description of Messrs. Down, &c., twenty days after date to pay to the was a for- oi'tlcr of R. Thomson, the sum of 31.5/. value received, and signed hy gery, it was iZe/iry Hutchinson, for T. Gr., T. and II. Hutchinson, which bill of ex- '^^^'^?®|^j*^'^'^ change so falsely made and counterfeited, is as follows (setting out the mont aver- bill,) &c., with intent to defraud Gr. Hutchinsion, &c.;" and it appeared "^■"^ ^1 \° '^^ on the evidence that the signature to the bill, "Henry Hutchinson," II? 11. in- was a forgery; it was objected that the indictment averring it to have stead of \)qq^ signed hy him, (and not merely that it purported to have been it purported signed by him) which was a substantial allegation, was disproved. to have And the judges were of that opinion, upon the case being referred to eTby^Mm *^^"' consideration after the conviction of the prisoner. (w) was bad. If But the setting out the very subject matter which has been forged, tae ii^tru- -ji j^^j. jj^ ^Y\ cases be sufficient. For if the instrument do not pur- purport oa port, on the face of it, and without reference to some other subject mat- the face of ^gj.^ ^^ -^^ ^^^ thing prohibited to be forged, the purport and meaning of thing pro- the forgery with relation to such other subject matter, must be express- hibited to ]„ averred to be the thing so prohibited. So that where the indictment 08 forf^ed ... the purport charged the prisoner with forging a receipt to an assignment of a certain must be ex- guni ia a navy bill, and the tenor of the receipt as set forth merely con- avtrreJ. sistcd of the signature of the party, it was holden to be defective ; on the ground that the mere signing of such name, unless connected with the previous matter, did not purport on the face of it to be a receipt, and that it ought to have been averred that such navy bill, &c., toge- ther with such signature, did purport to be, and was a receipt, &c., and *378 that the prisoner feloniously forged the same.(x) *But where a forged (u) 2 East, P. C. C. 19, S. 56, p. 980. \v) Rex V. Birch and Martin, 1771. 2 Black. R. 790. 1 Leach, 79. 2 East, P. C. c. 19, s. 56, p. 980. There was a third objection also that the indictment only averred "they knowing it to be forged, &c.," whereas it should have been that " they and each of thcni, knowing," but it was overruled. The prisoners were executed. (w) Carter's case, 1800. 2 East, P. C. c. 19, s. 56, p. 985. (x) Hunters case, 0. B. 1794, East. T. 1796. 2 Leach, 624. 2 East, P. C. c. 19, s. 36, p. 928, 929, and s. 53, p. 977. See Rex v. Barton, R. & M. C. C. R. I'^l, post. Rex v. Martin, R. & M. C. C. R. 483,_?w«^ CHAP, XXXII. § v.] OF THE INDICTMENT, ETC. 378 receipt, as set forth iu the iudictment, was in this furui, <* 18th Mtirch, 1773, received the contents above Ly me Stephen Withers," and it ap- peared in evidence that such receipt was forged at the bottom of a cer- tain account; upon objection taken that the account itself should have been set forth in order to make it appear that the receipt, as stated, was a receipt for money, all the judges held that the indictment was suffi- cient, and that the account was only evidence to make out the charge as stated in the indictment. (2/) It is observed upon this case that by the very terms of the writing itself, it purported to be a receipt for something, though not specifically for money, as it was averred to be, iu order to bring it within the 2, Geo. 2, c. 25.(2.) But since the 2 & 3 Wm. 4, c. 123, s. 3, if the instrument be described Where tbo in the iudictment instead of being set out, averments to show what the J^dercHbcd instrument is, arc not necessary but it is a matter of evidence whether umiur the 2 the instrument comes within the description given of it by the indictment. ^ '^ ^^ '"•. ^' The prisoner was indicted for forgmg and uttermg " a certam warrant to show for the payment of money, to wit, for the payment of the sum of 4/. y'"^' '^^ 10s.," and there were no prefatory allegations of innuendoes. The pri- jg ^re not soner was a chimney sweeper, and had on several occasions been em- necesear)-. ployed to sweep the funnels of the steam vessel. Princess Victoria, and the course of business was for the prisoner, when he had swept the fun- nels, to bring in his bill to J. Nicholson, the engineer of the vessel, who, upon that, gave him a certificate that the work had been done, and, on his presenting that certificate at the counting-house of Messrs. Lightly and Simons, he was paid the amount. The prisoner presented the following forged document at their counting-house. ''Oct. 11,1839. " This is to satisfy that R. Rogers has swept the flues and cleaned the bilges, and repaired four bridges of the Princess Victoria." "J. Nicholson." "4:1. 10s." Parke, B., " I think that the written evidence and the parol testi- mony taken together, show that the paper, if genuine, would have authorized the payment of the sum mentioned in it. Under the old law, averments would have been necessary, to show that this was a warrant for the payment of money ; but as the law is at present, no such averments are necessary, if the indictment is framed on the 3d section of the statute, 2d and 3d Wm. 4, c. 123. In the present case it appears by the evidence which has been given, that this *(if genuine) *37y was a voucher for the payment of this money. If you describe the instrument in the iudictment instead of setting it out, averments are, since the 2 & 3 Wm. 4, c. 123, not necessary, as they were before that act; and if the instrument be described under that statute, it is matter (//) Tcstick's case, 1T74, 2 East, P. C. c. 19, s. 30, p. 925. 1 East. R. 181, note (a). (2) 2 East, P. C. c. 19, s. 53, p. 977. Aud the learned writer refers to Taylor's case, 1 Leach, 215. 2 East, P. C. c. 19, s. 47, p. 900, ante, p. 330, where the prisoner was indicted for forging a receipt for 20/. due upon a bill of exchange in these words, " Received, W. "Wilson ;' and the indictment set forth the bill for 20/., and averred the forging of a receipt for the said sum of 20/., but contained no averment that the writing forged, together with the bill, purported to be, or was a receipt ; and he observes that here also the forged wri- ting in itself purported to be a receipt for something. 379 OP FORGERY. [BOOK IV. of evidence wbctber the instrument comes within the description given of it by the indictment."(a) A hanh post hill cannot, in an indictment for forging or uttering, be described as a bill of exchange generally, but it may be described as " a bank bill of exchange." (^) Instrument Where the prisoner had been convicted of uttering and publishing iinprorcrly ^^ ixxxQ, a forged promissory note, with intent to defraud one B. H., descnbcd . „ . , ', . ,. , . as a pro- Kuowmg, cVc, agamst the statute, the indictment stated the instrument jnissory ^s follows, without any innuendo, explanation, or allegation respecting it or its contents, further than denominating and describing it as " a promissory note for the payment of money, which is as follows :" Newport, Nov. 20, 1821. £28 15s. 0^7. Two months after date pay Mr. B". Hobday, or order, the sum of twenty-eight pounds fifteen shillings, Value rec*^. John Jones. At Messrs. Spoon & Co., Bankers, London. And an objection having been taken that the instrument so described was not in law a promissory note, the case was submitted to the judges, who held that the instrument was a bill of exchange, and not a promis- sorp note.(c) liut the But with respect to the word " purport," it should be well observed word '_' pur- ^}jg^^ it imports what appears on the face of the instrument, as a want ports what of attention to this meaning of the word has been fatal to many indict- appears on ments. the instru- ^^ ^ ^^^^ where the instrument was laid in some counts of the indict- ment, ment to be a paper writing pxirporthvj to he a bank-note, it was holden .Jones's tiiat as it did not purport on the face of it to be a bank-note, the counts could not be supported. ((?) Reading's In another case the bill of exchange upon which the indictment, pro- ^?,^^- , ceeded was in the following form : where the ° indictment _ . , ■„ , ^-, ,_^^ charged Bristol, Feb. 21st, 1792. that the Forty days after date pay to Mr. Jeremiah Beading, or order, the being pos- sum of 80/., for value received, and place it to the account of sessed of a JOHN WhITE. Z:lr To John Kino, Esq. purporting Bcrklcy-strcet, Portman-square, London. to bo di- *380 *And the indictment charged that the prisoner, having such bill in his (a) Reg. V. Rogers,* 9 C. & P. 41, cor. Parke, B., and Bosanquet, J. See Rex v. Rice, ^ 6G. k v. G34, post. (b) Rex V. Birkett and Bradj', Russ. & Ry. 251. The form of the instrument was, "At seven days sight I promise to pay this my sola bill of exchange," which is properly only a promis- sory note ; but the 15 Geo. 2, c. 13, mentioning " bank notes, bank bills of exchange," &c., seems to give these bank post bills that denomination of bank bills of exchange, as there are no other bank bills answering that description. In Moor's case, 1 Lewin, 90, Hullock, B., held that a bank post bill could not be described in an indictment for embezzlement as a hill of exchange. (f( Rex V. Hunter, Russ. & Ry. 511. (d) Jone's case, ante p. 354. " Eng. Com. Law Reps, xxviii. 28. ^ lb. xxv. 570. CHAP. XXXII. § v.] OF THE INDICTMENT, ETC. 380 possession, innjwrtincj to he sltjncd hi/ one John White, and to he tZt- rcctdl to reeled to one John King, hy the name and description of one John j^; \y Ring, Berldrt/street, &c., forged an acceptance in wniing i^urj^ortinf] ^otho name he the aceejytancc of the said John King. The bill, when produced, ."rjpUon ot appeared to be accepted on the back of it by John King ; and it was one Juhn proved that when the prisoner negotiated the bill, he stated that Mr. /''"'^', ,, 4_. , 1- • • T> 1 1 i X T. i 1 forgod the King was a gentleman living in iJerklcy-street, Tortman-squarc, and a acceptance man of opulence ; but in fact there was no person of that name living "*" "^"^ °*"1 there. The prisoner having been found guilty, the case was submitted it" vas holjl to the consideration of the twelve judges, who determined that judg-pntoLo mcnt ought to be arrested on the ground that the bill did not in fact /,round tba^ purjyort to be directed to one John King, as stated in the indictment. Jiii»j can- Buller, J., in delivering the opinion of the iudges, said, "It is clear ""! r'"!T"'"^ , . ° . % /• 1 1 ? • • 1 . to bo Ami/. that where an instrument is to be set lorth, the description that it^)ij T. Exon, such signature being a forgery, and the paper, therefore, not in fact so signed. See Carter's case, ante, 3 77. CHAP. XXXII. § v.] OF TUE INDICTMENT, ETC. 382 som, Moreland and Ilammcrslei/, ever existed, or who were the persons who constituted that firm, and, conceiving it to be material that the names of the real partners interested in the business should be men- tioned, has taken great pains to show that a bill drawn on ' Ritnaom, Murcland and Jlammcrdri/,^ was drawn on ^ Lord Kinudird, Moreland and ILnnmcrsIfi/ ; and, in order to do that, he has averred in the indict- ment that the bill purports to be drawn on 'Lord Kinnaird, Moreland and Ifammen^lei/.' But the jnirjwrt of an instrument as I have already observed, is that alone which appears on the face of it ; and on the face of this bill, Lord Kinnaird's name does not appear, and, therefore, the averment is not true."(y) This doctrine was again acted upon in a case where the indictment Kflall'p charged the prisoner with forging a certain paper writing, ^)?/>y)o/7/Hr/^"^^^ ^^ J. "^ to be an inland bill of exchange, and to be drawn by one C. W. Wright, trino was bearing date, WincJiester, lith Nov. 1796, and to be directed to /iW/t-"^'"".''^'*'.'' upon in this ard JJoicn, Henri/ Thornton, John Freer, and John Cornwall thecsiee. youmjer, bankers, London, by the name and description of IMessrs. Down, Thornton and Co., bankers, London, requiring them, ten days after date, to pay to Mr. Wm. Simmons, or order, 8/. 10s., &c., and then setting out the tenor, by which the bill appeared, as the fact really was, to be directed, " 3Icssrs. Doion, Thornton and Co.," bankers, London, (/t) In a case which occurred about the same time, the indictment, which Reeves's was for forging a scrip receipt, charged that the prisoner forged it "with [^("j^pty,"^". the name C. Olier thereunto anhsciihcd, 2»t>'2^ortiny to have been signed for forgin;,' by one Christopher Olier ;" and it was objected that this must neces-*^ ^"'J^.''^" . CCipt SICTD- sarily be bad, as C. Olier "did not, on the face of it, purport to bcod " c. Christopher Olier, but might be Charles, &c.j" but the court thought '^''^'■=" that this case differed in some degree from the two cases cited in support the prisoner of the objection, namely, Jones's casc,(i\ and Gilchrist's case ;(^/A inas- forged the much as the note in Jones's case did not purport to be a bank-note, and, r^^^.-tj^ tbo therefore, the indictment, charging that it did so purport, was bad j and nnme c. in Gilchrist's case, as the name of Lord Kinnaird did not appear on the [j'l'*^'"' face of the bill, it could not purport to be directed to him : but that, in siibscriiioii, the present case, the scrip receipt being subscribed with the name C. PHrrorting Olier, and the indictment charging that it purported to be signed in ijeen sigu- the name of Christopher Olier, a cashier of the Bank of England, it <"} ')y o"*? was not, upon the face of it, repugnant to the bill, or inconsistent with ouer."^^" itself. (?) ifthi'sdif-' *"We have already considered the purpose of fraud and deceit, to the th^fon'^o. prejudice of another's right^ which makes a part of the definition of ing cases? forgery. (?») Such purpose or intent to defraud must be stated in the *383 (ff) Gilchrist's case, 0. B. 1T95, East. T. 1T95. 2 Leach, C57. 2 East. P. C. c. 19, s. 5G, p- 982. (h) Edsall's case, 1798, 2 East, P. C. c. 19, s. 5G, p. 984. 2 Leach, 662, note (a). In East. P. C. ibid., it is said that tlie judj.rcs held tlio indictment had, upon the authority of Gil- christ's case, though Ruller, J., dL-approvcd much of that determination, which, however, he admitted could not be distinguished from the present case. (i) Ante, p. 354. (k) Ante, note ( tavo of Taylor Barrow being a proprietor of so much stock, and being per- fra'ildca" sonated by the prisoner, who transferred it, &c. ; and that it was not sufficient merely to state that the forgery was committed with intent to defraud T. B. generally ; the judges held that it was sufficient if the offence was described in the words of the act; and tliat, whether it were or were not meant to defraud Taylor Barrow, was matter of evidence, which the jury had found. (5') And in another case, where Buller, J., upon a conference with the It need not rest of the iudgcs, stated, as an objection to an indictment, that it was u** "^"T*^** not alleged that the bill was uttered or tendered to the persons, whom ed bill of it was laid the prisoner meant to defraud ; and, therefore, tliat it did cxchango not appear to the court, on the face of the indictment, that those per- (Urctltothe sons could be defrauded by the transaction, which cdicai/s fl2)p<;a?r(Zr-'»''»yintun- wliere the name of draicer, acceptor, or indorscr, was fonjcd ; all the j^fVaudcd other judges held that the indictment was good in this respect, as it was n^r in ^^1^"* sufficient to pursue the words of the act, which constitute the offence ; ^^^[1™^°' and it was matter of evidence, whether the prisoner intended to defraud party could the persons named by tendering the bill in payment to them, or how ^j *icfraud- otherwise.(r) The following case relates to the property of the party against whom As to the the intent to defraud is aimed, in the moneys, &c., sought to be obtained |iie^p^arty° by the forgery. intended to Two prisoners, Mary Jones and Henry Palmer, were indicted for the'^*-J ^^'^^'j'^^'^- forgery of an indenture of apprenticeship, and also of a receipt fornioneys, money, with intent to defraud A. B., C. D., &c., the stewards of the ^'^•' sought feast of the sons of the elcr(jij. It appeared that the charitable fund oftaincd. the sons of the clergy was raised by voluntary contributions, and allotted j^nes and by the secretary equally among all the stewards, to be disposed of by Palmer's them to the widows and children of deceased clergymen, according to '^^^^' their discretion ; that the prisoner Jones was a clergyman's widow, and that, pretending, by means of the indentures in question, and the re- ceipt indorsed thereon, that she had placed her son as an apprentice, she obtained, in concert with the other prisoner, an order from one of the stewards, on the treasurer of the society, for 20/., as an apprentice- fee. The prisoners, having been found guilty, it was submitted that the offence amounted only to a misdemeanor at common law, and that this was not such a species of property as fell within any of the acts relating to forgery. But Eyre, B., said, that the several stewards were the ab- solute owners of their respective shares *of the fund : that it was their *385 money, put into their hands upon a trust ; and if they had sunk it im- improperly, or paid it wrongfully, they would perhaps be answerable ) and that unquestionably it was their money, as against all the world, except the subscribers, (.s) Where there is an incorporation, the money becomes the property of Where the the whole body, and not of the individual members who compose it. r^irsons do- {q) Powell's case, ITTI, 2 Etxst, P. C. c. 19, 3. 59, p. 989. 1 Leach, T7. In East, a further ground for the opinion of the judges is thus stated : "Besides there was a second count, wherein the oflencc was laid with intent to defraud one Sykcs. If, therefore, there were no such person as Taylor Barrow, or if he had no stock ; yet, as the receipt had in form the constituent parts of a receipt for the transfer of East India stock, that was sufficient." ir) Elsworth's case, 1780, 2 East, P. C. c. 19, s. 59, p. 989, and s. 58, p. 98G. (.s) Rex V. Jones and Palmer, cor. Eyre, B., 0. B. 1V85. 1 Leach, 3CG. 2 East, P. C. c. 19, s. GO, p. 991. 385 OF FORGERY. [BOOK IV. frauded arc And the 31 Geo. 2, c. 22, s. 78, and 18 Geo. 3, c. 18, (now repealed,) tion!'^"'^^' '^^^'^'^ passed to obviate the objection that the word "person" in the 2 Geo. 2, c. 55, and 7 Geo. 2, c. 22, (relating to the forgery of deeds, wills, bonds, bills, &c.) did not extend to the aggregate members of a corporation. (^) Statement The 7 Geo. 4, c. C4, s. 14, in order to remove the difficulty of stating trustees *''^^' the names of all the owners of property in the case of partners and other &c., joint owners, enacts, "that in any indictment or information for any felony or misdemeanor, wherein it shall be requisite to state the owner- ship of any property whatsoever, whether real or personal, which shall belong to or be in the possession of more than one person, whether such persons be partners in trade, joint-tenants, parceners, or tenants in com- mon, it shall be sufficient to name one of such persons, and to state such property to belong to the person so named, and another or others, as the case may be ; and whenever, in any indictment or information for any felony or misdemeanor, it shall be necessary to mention for any purpose whatsoever, any partners, joint-tenants, parceners, or tenants in common, it shall be sufficient to describe them in the manner afore- said ; and this provision shall be construed to extend to all joint-stock companies and trustees. "(m) Where the prisoner was indicted for forging a receipt for county rate; which had been paid out of the poor rate of a parish, it was held that a count laying the intent to be to defraud one of the parishioners, by name, "and others/' was good.(i)) Joint stock ^Yg have seen that certain provisions are made as to the mode of framing indictments in cases of certain stock banks by the 7 Geo. 4, c. 46, (io) and that it is not imperative upon the banking companies formed under the act to prosecute in the name of one of their public officers, (x) Where one count of an indictment alleged the intent to be to defraud " Robert Bell and others," who were shareholders in a joint stock bank, in which the prisoner was also a shareholder; Patteson, J., was inclined to think that it it would not be safe to convict upon that count, (a) The 1 & 2 Vict. c. 96, seems, however, to do away with any doubt in such a case during its continuance in force. (?/) Where the If the indictment proceeds upon a statute, the charge must, in gene- 1° upon a" ^^^> ^^ ^^^ forth (acording to the established rule applicable as well to statute, the Other cases as to forgery) in the very words of the statute describing the ''ff'^"^^ offence. (2) must be t> • t described Lut an indictment for forging a stamp on foreign muslins, which as in the *stated the duty to be chargeable /o?', 07i, and in respect of, foreign statute. muslin, was holden good ; though the words of the statute in the clause *386 imposing the duty were, for, and uj)on; in other clauses, for; in others, on; and in others, upon.[ci\ (t) Harrison's case, 1111, 1 Leach, 180. 2 East, P. C. c. 19, s. 59, p. 988. The statutes re- ferred to are repealed by the 1 Wm. 4, c. 66, s. 31. (u) See the 1 Wra. 4, c. 66, s. 28, post, p. 410. [v) Reg. V. Vaughau,* 8 C. & P. 276, Gurney, B. (k) Ante, p. 103. (x) Ante, p. 104. (a) Reg. V. Cooke,'' 8 C. & P. 586. {y\ Ante, p. 105. [z) 2 East, P. C. c. 19, s. 58, p. 985. {a) Rex V. Hall and Crutchf5eld, 1795. 2 East, P. C. c. 19, s. 19, p. 895, and s. 58, p. 988, post, Chap. Of Forging, ^-c. Stamps; and an indictment at common law was holden bad * Eug. Com. Law Reps, xxxiv. 390. ^ lb. xxxiv. 533. CHAP. XXXII. § v.] OF THE INDICTMENT, ETC. 386 It is said that a superfluous description docs not appear to be objec- As to a tionable.(?^) And a case is cited where upon an indictment on the 2 j"||'^,!jp"i°"i^ Geo. 2, c. 25, (now repealed) for forging << a bond and writing obliga- tory," it was objected that, as the statute uses the term load as well as the term xcrillny ohUyatonj, the indictment ought to have described the oflfence more particularly, either as a forgery of the one or the other ; that it should have described the instrument in this case as a icritiwj ohl'Kjatory, as it had neither a defeasance nor penalty annexed to it: and that, although a bond were a writing obligatory, yet the converse did not hold; but by the opinion of tlie judges the indictment was holden good.(<;') With respect to the inference from this case, that a super- fluous description does not appear to be objectionable, a learned writer says that he is by no means satisfied that the term bond is not properly applicable to an obligation witliout a condition, although for the sake of distinction, it is more usually called a single bill.('/) Where an indictment charged the prisoner with having forged <' a Warrant certain warrant and order for the payment of money," which was as ""'\'^'rder i •' •" lor theiiay- lOnOWS : ment of money. " Worcester Old Bank, " Hanbury Hall, Nov. 28, 1828. " Messrs. Berwick, Wall, Isaac, and Lechmere, pay to Mr. John Perkins or bearer, twenty-five pounds ten shillings. « £25 10s. 0(/ "John PniLLirs." It was held that the indictment was good, for the instrument was both a warrant and order ; a warrant, authorizing the banker to pay, and an order upon him to do so.(e) The insertion of superfluous words, which arc not contained in the The insor- 1 Wm. 4, c. 66, does not vitiate the indictment. The first count charcrcd *"•" »' ""- . . , f, , . ° . perfluous that the prisoner did " falsely make, forge, and counterfeit, and did words does cause and procure to be falsely made, forged and counterfeited, and did "'^"^ y''.^*^ willingly act and assist in the false making, forging, and counterfeit- ,„eut. ing," a certain bill of exchange, &c. The second count charged that the prisoner did " utter and publish as true," &c. The third that he did <'ofler, dispose of and put away," &c. It was objected, that the in- dictment ought not to contain the words " counterfeit and act and assist in the false making," &c., as those words were not in the 1 AVm. 4, c. 66, though they were in the former forgery acts : and the same objection applied to the second and *third counts, as that statute does *3S7 not contain either of the phrases "publish as true," or put away." Park, J. A. J., " I am of opinion that this indictment is good. The first count charges the prisoner with forging the second with uttering, and the third with ofi'ering and disposing of, which is correct; and that is not for uncertainty, which stated that tlic dcfemlant forged, or caused to be forpred, a hill of lading, Re.x v. Stocker, 5 Mod. 137. 1 Salk. 342, 371 ; and sec Walcot's case, Holt's R. 345. [h) 2 East, P. C. c. 19, s. 58, p. 985. (r) Dunnctt's case, 0. B. 1792, East. T. 1793. 2 East, P. C. c. 19, s. 58, p. 985. ill) G Ev. Col. Stat. Pt. v., CI. xii., p. 581. And he refers to 2 Bla. Com. 340. (c) Rc.x V. Crowther,* 5 C. & P. 31G, MS. C. S. G. BosaiKiiiet, J. And see Reg. v. Gilchrist,'' 1 Carr. & Marsh, 22A, post. » Eng. Com. Law Reps. xxiv. ."r)7. •' lb. .\li. 12G. 387 OP FORGERY. [BOOK IV. rcudcrcd bad by a great deal more being stated, which is not aj^plica- ble to the enactments now in force. "(/) Sowing Sewing to the parchment, on which the indictment is written, im- {f notos^'on P^^ssions of forgcd notes taken from engraved plates, is not a sufficient an indict- Setting out of the notes in the indictment. Some counts of an indict- ment, ment for having in possession plates, on which were engraved foreign promissory notes, had not the/«c siinilcs of the notes engrossed on the parchment, but fac similes of the forged notes on blue paper such as either were, or resembled copies of the forged notes, were sewed with thread to the parchment on which the indictment was engrossed ;(5)') and upon a case reserved all the counts, in which the fac similes of the notes were not engraved, was held bad.(7i) A foreign jJ^q indictment for uttering a foreign promissory note need not alledge not be^al- ^^ *o ^^ payable out of England. An indictment under the 1 Wm. 4, legoii to bo e. OG, s. 30, charged the prisoner with uttering the following note : — payable abroad. ^'No. 10101. " The North River Bank will pay to C. Trinder or bearer the sum of twenty dollars on demand. " A. B. Kays, Cashr. " L. Kip, Prest." The note had been originally a genuine two dollar note issued by the North River Bank of New York, and the forgery consisted in " twenty" being substituted for " two," and the figures 20 for 2. It was contended that as the note was a foreign note, the indictment ought to have stated that the note was payable out of England ; it was answered that the oiFence of uttering forged foreign notes in England being put by the statute exactly on the same footing as the utterance of forged English notes, there was no distinction between them, and therefore no averment was necessary as to the place where the note was payable ; and Cole- ridge, J., overruled the objection. (^?'.) *388 *Where a prisoner is tried under the 1 Wm. 4, c. 66, s. 24,(Z;) for AYhero a forgery in the county where he is in custody, the forgery may be al- tried"iu^the lodged to have been committed in that county, and there need not be an county averment that the prisoner is in custody there. The indictment con- i^ custody^ tained several counts in the usual form for forging and uttering a pro- tliat fact missory note, but there was no evidence of anything done by the pri- (/) Rex V. Brewer,* 6 0. & P. 363. Iff) The statement in 7 0. & P. 423,i'is that "the note was set out in the Polish language, by sewing an impresion of the plate to the parchment on which the indictment was written." (h) Rex V. Warshaner, R. & M. C. 0. R. 466. S. C. 7 C. & P. 423, and 429. In note (b), ibid., p. 430, it is said that " a considerable majority of the judges were of opinion that the sewing the papers to the indictment was of itself sufficient to vitiate those counts, but some did not seem so clearlj'- of that opinion ; and as the special counts were bad upon the other grounds, (see anfe, p. 374,) it was not necessary to come to a decision as to the papers being sewed to the indictment." As every indictment, being a record, must be upon parchment, Co. Litt. 260, «, it is diflicult to see how an indictment, part of which is on paper, can be good. C. S. G. (i) Reg. V. Lee, 2 Moo. & Rob. 281. {k) Post, p. 440. > Eng. Cora. Law Reps. xxv. 438. ^ lb. xxxii. 568. CHAP. XXXII. § v.] OF THE INDICTMENT, ETC. 388 soncr in the county of the city of Gloucester, in which the indictment need not be was preferred; but the prisoner was in custody in the city of Glouces-'^ *'^*^ tcr at the time the bill was found, and at the time of the trial ; it was contended that there ought to have been an averment in the indictment that the prisoner was in custody in the city. Pattcson, J., in Rex v. Fraser,(A the averment was held necessary, " However in that case the indictment stated the bigamy to be out of the jurisdiction, and there it was necessary to have the averment ; but by the 1 "Wm. 4, c. GO, s. 24, the offences may be laid in the county where it did not arise. I think, therefore, that proving the party in custody here is sufficient. 'V/n) An indictment on the 2 Geo. 2, c. 25, (now repealed) which charged Tho word that the prisoner " did feloniously alter and cause to be altered a certain "f|V '?^ ^j^,, bill of exchange, fahdj/ malclnf/, fotyiiifj, and aihling, a cypher to iudictment, the letter and figure £8 kc," was holdcn good, though the words of the !'"'V^''""°' statute are, "if any person shall fahihj inaJce, forjc or counterfeit/' i^tc. and the word alter is not used in the statute. (w) In this case the judges held that there was no difference in substance If any part or in the nature of the charge, whether the indictment were for feloni- "nglrument ously altering, by falsely making and forging, or for feloniously making be altered, and forging by falsely altering, &c.(o) We have already seen that if ?/"'^"u'^fe''^ any part of a true instrument be altered the offence may be treated as instrument a forgery of the whole instrument, and be so laid in the indictment. (p) may belaid But it appears to have been more usual to lay forgeries of this kind by dictment. stating the particular alteration, at least in one count. (g') An indictment for uttering a forged acceptance must expressly state ^^ indict- that the prisoner uttered the acceptance. The fourth count of an in- "uering a dictment alleged that the prisoner having in his possession a certain forged ac- bill of exchange, which was set out, with a certain forged acceptance on *^*'^!f°?,!>, o ^ 7 o 1 must aver the said bill, which was also set out, afterwards did utter, &c., (then and the uttering there knowing the said acceptance to be forged) the said bill of exchange ^^ ^^^ ^^' ° ^ o / o ceijtance. with intent, &c. It was objected, that the count was bad for not aver- ring that the prisoner uttered the forged acceptance; and, upon a case reserved, the judges upon full and mature consideration, held that the count was bad, as it was possible the acceptance might have been taken off the bill before the prisoner uttered it.{qq) In a case where the prisoner was indicted for uttering a forged will, Plea of on his arraignment he pleaded aiitrcfois acquit; upon which *the plea ""''y'* was taken ore tenus, and recorded by the clerk of the arraigns, who »QQq replied to it on the part of the crown, nul tiel record. In order to prove the plea, the record of a former acquittal of the prisoner was produced ; but, on comparing it with the present indictment, it ap- peared that the prisoner had been acquitted of uttering a forged will, beginning, "/, James Gibson, do hereby," &c., but that he ■was now indicted for uttering a forged will, beginning " James Gibson (I) R. & M. C. C. R. 407, ante, vol. 1, p. 189. (»«) Rex I'. James, » 7 C. & P. 553. See the section, 7)05/, p. 410, (n) Elsworth's case, York Lent Ass. 1780, and before all the judges, 12th April, 1780, J East, P. C. c. 19, s. 58, p. 986, 988. (o) Id. ibid. (p) Ante, p. 319, ei sea. (q) 2 East, P. C. c. 19, s. 55, p. 980. (qq) Rex V. HorwcU,'' R. k M. C. C. R. 405. S. C. 6 C. & P. 148, and MSS. C. S. G. The ground of the deeision was stated as in the text by Patteson, J., in delivering the opinion of the judges at Stafford Lent Assizes, 1834, MSS. C. S. G. » Eng. Com. Law Reps, xxxii. 628. •> lb. xxv. 325. 389 OF THE FORGERY. [BOOK IV. do hereby," &c. The question, therefore, was, whether this record was legal evidence of the prisoner having been acquitted of the same offence? And, after argument by the prisoner's counsel, the court rejected the proof as insufficient; the prisoner pleaded the general issue to the felony, and the jury found him guilty of the offence. (^r) Trial of The offence of forgery at common law cannot be tried at the quarter forgery. sessions, that court having no jurisdiction over it; nor can they take ter sessions cognizance of it as a cheat. («) And it has been holden in several cases have no i\y^^ ^\^q quarter sessions have no jurisdiction in cases of forgery upon juriscic ion ^j^^ ^ W\z. c. 14.(<) Lord Kenyon, C. J., in speaking of the general jurisdiction of the quarter sessions, after deciding that the offence of soliciting a servant to steal his master's goods is cognizable by that ju- risdiction, as falling within that class of offences, which being violations of the law of the land, have a tendency, as it is said, to a breach of the peace ; proceeded thus, — '' To this general rule there are indeed two exceptions, namely, forgery and perjury; why excepted I know not; but having been expressly so adjudged, I will not break through the rules of law."(^f) Trial where The trial of forgery must formerly have been in the county where the the offence Qg-gj^^.^ ^^g committed, as the indictment could only be preferred in that 13 commit- ' •' ^ ted, or a county. And as it seldom happened that direct proof could be given prisonerap- q£ ^^q vervact of forgery, difficulties sometimes occurred in cases where prehended o ./ / or in custo- there had been no offence of uttering by the prisoner, as to what was ^'j- sufficient evidence of the fact of forging within the county laid. But these difficulties seem now to be obviated by the 1 Wm. 4, c. 66, s. 24, which makes the offender triable " in any county or place in which he shall be apprehended or be in custody." (a;) *390 Two prisoners were indicted, the one, Parkes, for forging, the other, Parkes Brown, for uttering a forged promissory note for five guineas. It ap- Brown's peared clearly that Parkes had forged the note; but the only evidence case. The offered to show that the forgery was committed in Middlesex, where the bare fact yg^ue ^as laid, was that Brown, between whom *and Parkes there was note being a o"reat intimacy, had uttered it in Middlesex, in the absence of Parkes, littered in a ^^^q ^r^g ^q^ proved to have been cognizant of the fact, and that above county by forty of the same sort of five guinea notes in blank, without any sig- one pri- nature, were found upon Parkes, in the same county, together with a evidence 'ofi''2C^ipt; under cover, addressed to Brown, for 21?., for four five guinea the forgery bills. All the notes found upon Parkes, as well as that upon which haying ^j^^ indictment proceeded, were dated " Ringhton, Salop." Both the mitted in prisoners having been convicted, the case was referred to the considera- (r) Coogan's case, 0. B. 1T87, 1 Leach, 448. So in Reading's case, ante, p. 380, note (e), BuUer, J., said that the judgment being arrested for the informality of the record, the pri- soner might be again indicted for the offence. And in Gilchrist's case, ante, p. 380, as the objection taken went only to the form of the indictment, and to the merits of the case, the jirisoner was remanded to prison till the end of the sessions that the prosecutor might be at liberty to prefer a better indictment against him if he thought fit. In the above case of Coogan, the prisoner's counsel chiefly relied upon Lord Hale's construction of Vaux's case, (2 Hale, 246,) as reported by Lord Coke, 4 Co. 44. 3 Inst. 214. (»•) Yarrington's case, 1 Salk. 406. Rex v. Gibbs, 1 East. R. 1T3. 2 East, P. C. c. 19, s. 7, p. 864. 2 Hawk. P. C. c. 8, s. 64. \t ) Smith's case, Cro. Eliz. 87. Wilson's case, Id. 601. Hunt's case. Id. 697. (m) Rex V. Iliggins, 2 East, R. 18. If, therefore, an indictment for forgery be found at the Sessions, and transmitted to the Assizes, the judge will order it to be quashed. Reg. v. Rigby,» 8 C. & P. 770. Erskine, J. (z) See the SQcion, post, p. 410. » Eng. Com. Law Reps, xxxviii. 629. CHAP. XXXII. § v.] OP THE TRIAL, COU^JTY, ETC. 390 tion of the twelve judges. Some of tie judges were of opinion, that tli-^t county the faet of Gndin^' the forged instrument in the county, in which also it ''•V""*''''''^'^ o o _ ^ J J ]irii!Oiier, appeared that the forger himself was, was evidence, in the absence of tliougli an other proof, of the fact of the forgery having been there committed. »|;*"0"n'l'c» But the majority of them, though they agreed that it was a question of utteror. evidence for the jury, were of opinion that there was no proof to war- rant the conclusion that the forgery was committed by Parkes in ]Middle- sex, where it was laid : for they thought that the bare faet of the note being uttered in Middlesex by the other prisoner, taking him even to be an accomplice, was no evidence of the forgery itself having been com- mitted in that county. (y] In a more recent case it is reported, as the opinion of a majority of C^ocke^'.^ the judges, that the finding a forged instrument in the custody of a per- '!•'*■';• ''^''^ son is no evidence that it was forged in the county where it was found. nfly of forgery of the note iu question. It appeared that the prisoner had noTcw" '^ formerly lived at Winsham, iu the county of Somerset, where he fol- 'I'licc thn t lowed the employment of a farmer for many years. About the nionth|.j^^j^j^^jj*'J*^" of June, 1804, he quitted his farm, and all his concerns at Winsham ; county at which place one William Tucker, in whose name the forficed note pur- ^^'"-''? '*• , , , . , .11 , , . , ^ o • y ■ was found ; ported to be signed, resided, and also earned on the farming business c.-^pecially there at the time of the trial. In November, 1804, the prisoner, havinu; '", * •'*^'^ changed his name from Crocker to Collins, went with his wife to Salis- the cireum- bury, where he took lodgings, and continued to live until about the "t'lnces middle of the mouth of May, 1805, when he left his wife at her apart- pregynf,,"! ments in Salisbury, and went to London. During his stay in London, tion that it he was apprehended there on another charfje ; in consequence of which •'^'^^ .p' his lodgings at Salisbury were searched in the presence of his wife : he county. being still in London ; and in a bureau belonging to the prisoner was found a pocket-book, in the inside of which was written his name, B. Crocker, in his own handwriting ; and in one of the pockets of this pocket-book was found the note, set forth in the indictment, which was dated on the 7th March, 1803, and on which was an indorsement that a year's interest had been paid. It was objected upon this evidence, that there was nothing to show that any offence had been committed in the county of Wilts, the prisoner not having been in that county, but in Somersetshire at the time when the note appeared to bear date; and the point was submitted to the consideration of the judges. No opinion of the judges upon this case was ever publicly delivered ; but the pri- .soner received a pardon, and was discharged ; and it was said to have been understood, *that a majority of the judges thought there was *391 not sufficient evidence that the offence was committed in the county of Wilts. (,r)t (y) Rex r. Parkcs and Brown, 179G. 2 Leach, 775. 2 East, P. C. c. 19, s. 49, p. 9G3, and s. Gl, p. 992. Although these cases may, perhaj)?, no longer be material, I have thought it safer to let them remain, as they ma.y posml>hj he found useful. C. S. G. (z) Crocker's case, 1805. 2 Leach, 987. 2 Now Rep. 87. But qu. if the only point actually decided by the judges in this case was not " that an incompetent witness had been ad- mitted?" •j- {In Commonwealth v. Parmenter, 5 Pick. 279, it was decided that the fact of forging a note within a county cannot be inferred merely from its having been there uttered. In Uni- ted States ('. Britton, 2 Mason, 4G4, where a check was drawn in Philadelphia on Boston, in favour of the prisoner, who was then in Philadelphia, and who produced in Boston the check altered ; it was held, in the absence of all evidence that it was altered eloewhcre, to Vol. II.— 26 391 • OF FORGERY. [BOOK IV. It was observed by the counsel who argued the last mentioned case, that in Elliott's case[a) the forged instrument was found upon the pri- soner in Kent, where the indictment was laid; but that no evidence was given to prove the actual fabrication of the instrument in that county; and, on the contrary, the circumstances of the case afforded some infer- ence that the forgery was not committed there. It appeared, that one Rj^land, having struck off a quantity of notes, delivered them, together with the plates, to the prisoner, at a public house in Fleet Ditch. The note in question was found upon the prisoner at Dover, and the plate at a lodging upon Tower-hill ; yet the objection that the evidence did not afford proof of the offence being committed in Kent was either over- looked or thought of no weight. (/>) Offences Where an indictment stated the forgery to have been committed in committed ^^q county of Nottingham, and it was proved to have been committed county of a in the county of the town of Nottingham, it was holden that, although town. under the 38 Geo. 3, c. 52, it was triable in the county at large, the offence should have been laid in the county of the town.(c) In a later case where the prisoner had been convicted at the assizes for the borough of Lsicester, of forging a bill of exchange, a question was raised whether the evidence of forgery in Leicester was sufficient to sustain the verdict. The bill was dated at Leicester, June 1st, 1827, and purported to be drawn and indorsed by E. Addison, to his own order, on W. Rawson for 40?. at two months after date, and to be in- dorsed by Addison. Addison and Rawson both lived at Leicester, and Addison kept cash with Clark and Co., at that place. The bill was taken on the 5th June by one Porter to the bank of Clark and Co., with a request that they would discount it; but, the forgery being discovered. Porter was detained, and tried, and convicted at the same assizes for uttering the bill. It was proved that the whole of the bill — the date, body, signature, and indorsement were in the handwriting of the pri- soner. It was proved by one witness, that the father of the prisoner lived in Leicester, and that he believed the prisoner lived with him, having seen him there. Another witness proved that he saw the pri- soner and Porter walking and talking together in a street in Leicester, *392 about a week before the 5th of June. ^Another witness proved that she saw them pass her house together in another street in Leicester, in the course of a fortnight before the 5th of June. And it was proved by another witness that he saw them walking and talking together in another street in Leicester, a very short time before the same 5th of (a) Ante, p. 348. (6) In 6 Ev. Col. Stat. Pt. V. CI. xii., the learned writer says. " I remember a case at Lancaster, in the year IVOS, where a clerk of a mercantile house at Liverpool had stolen several bills, and was afterwards apprehended on board a sloop in the Downs, with a forged indorsement of the drawee on one of the bills ; and Rooke, J., without any evidence to show a greater probability of the forgery being committed in Lancashire than in any intermediate county, thought there was enough to go to the jury, who, however, acquitted the prisoner." There certainly does not appear in this statement anything which could have warranted the jury in coming to a different conclusion. (c) Rex V. Mcllor and another, Russ. & Ry. 144. Where the indictment is pcrferred in the next adjoining county, under the statute of the 38 Geo. 3, for an offence in an inferior county, though the indictment must state the offence to have been committed in the inferior county, it need not aver that the county in which the indictment is preferred is the next adjoining county. But it may be stated in the caption, when the record is regularly drawn up. Rex V. Gofif, Russ. & Ry. 179. he prima, facie evidence that it was altered in Massachusetts, where it was first known that it was altered.} CHAP. XXXII. § v.] OF THE EVIDENCE. 392 June. Eut none of the witnesses could fix the precise da^'s to which they spoke. Lord Tenterden doubted whet her there wassuch evidence of the forgery in Leicester as would justify him in leaving that point to the jury ; but he left it to them, and the prisoner being found guilty, his lordship respited the judgment, in order that the point might be sub- mitted to the consideration of the judges, who held the conviction right.((7) The evidence in forgery must support the material facts stated in theOfthoevi- indictment: and it is essentially necessary, that the proof should tally ^''°'^®' with the averment of the intent to defraud. (^) And we have seen, that the manner in which the fraud was carried or intended to be carried into effect is peculiarly matter of evidence. (/) In respect of the persons who might formerly be witnesses in cases of Of tho com- forgery, it was an established point, that a party by whom the instru- r«''*^"<'y °f ment purported to be made was not admitted to prove it forged, if, in by whom case of its being genuine, he would have been liable to be sued upon it, ^''° 'n^'"""- or be deprived by it of a legal claim against another. This exception "o^g f"bo to the general rules, by which testimony in criminal cases is regulated, ™"do *<> and which has often been spoken of as an anomaly in the law of evi-fj^g°j' dence, was at length removed by the 9 Geo. 4, c. 32, s. 1, which enacts, 9 g captain; and the crime was effected by altering the figures in the quan- ease. Tho tity of meat, and in the sum they amounted to, with intent to charge Person one Trinder, the owner of the ship, with larger disbursements than the voucher is captain had really laid out. To prove that these alterations were forge- forged for ries, and not the handwriting of Maughan, one Greenwood, his partner, oHinposln'g was produced, as one who was acquainted with Maughan's hand : but on a third (d) Rex V. Corah, Leicester Sum. Ass. 1827. M. T. 1827. MS. («) ^'"'', P- 383. (/) Ante, p. 383, et seq. (ff) 2 East, P. C. c. 19, s. C6, p. 999. f [On the trial of an indictment for forgery, the party whose signature is alleged to be forged, is a competent witness to prove the forgery, and also the destruction of tlic instru- ment alleged to be forged, although civil actions are pending against him to which his only defence may be the forgery of said instrument. Commonwcallh v. Peek, 1 Mctcalf, 425. S. P. Slate y. Phelps, 11 Vermont, IIG. Slate v. Sharttif, 18 Maine, 3G8. Simmons y. The Slate, 6 & 7 Ohio, 238. Contra, Slate v. Stanton, 1 Iredell, 124.] 393 OF FORGERY. [bOOK IV. person, as it did not appear that Mauglian was dead^ it was holden, that as he with whom yjj jjive the best and most satisfactory evidence whether the altera- hc had no ^ ^ i i mi pi • i i i • i i i dealing is tions 01 the Dill wcrc Or were not forged, no evidence but his could be the proper a(jjjjittcd of the forcerv, he having no deo;ree of interest in the question, witiifess to o •/ / o o X ' prove the and being a competent witness to that fact. (A) forgery of ]3ut in a subsequent case of a prosecution for the forgery of a bank- hajiclwrit- note, it was ruled, that the handwriting of the cashier of the bank might ins- be disproved by any other person who was acquainted with his hand- Hughes's writing. (i) And in a case which was referred to the consideration Hohien °f ^^^'^ judges, a conviction for forging a bank-note was holden good, that the though there had been no testimony of the cashier at the trial to disprove ^^"'^^7"*^' his handwriting, and the forgery of the note had been proved by other cashier of evidence, which showed that the instrument was false in all its parts, the bank j^ ^-^q texture of the paper, the water mark, the engraving, the ink, and disproved the written date of the year, which was 1798, though the printed date by any tmder the Britannia was 1799 ; being altogether proved to be such as soii^ac^°'^" t^6 bank never made or issued. (Z;)f (h) Smith's (Capt^) case, cor. Gould, J., and Yates, J., 0. B. 17G8. 2 East, P. C. c. 19, s. 67, p. 1000. (i) Hughes's case, cor. Le Blanc, J., Exeter Spr. Ass. 1802. 2 East, P. C. c. 18, s. 68, p. 1002. And see Downes's case, jjost, p. 400, where a father was admitted to disprove the handwriting of his son, who was at Jamaica. And as to the Bank of England cases, it was holden more recently, in a case reserved, that it is not necessary that the signing clerk should be produced, if witnesses acquainted with his handwriting state that the signature, to the note is not his handwriting Russ. & Ry. 378. (k) M-Guires case, 1801. 2 East, P. C. c. 19, s. 68, p. 1002. f {In Massachusetts, by st. 1818, c. 110, in all prosecutions for forgery or counterfeiting of bank bills, or for uttering, &c., forged or counterfeited bank bills, the testimony of the president or casliier of the bank may be dispensed with, if his place of residence exceeds the distance of forty miles from the place of trial ; and in all such cases the testimony may be admitted of any witness acquainted with the signature of the ofScers of the bank, or who may have knowledge of the difference between the true and counterfeit bills of any bank, to prove that such bills are counterfeit. The testimony of witnesses who had knowledge of the signatures of ofiScers of a bank only from seeing and passing many of the bills, (viz., brokers, cashiers of other banks, &c.,) was admitted by the court in Massachusetts, before this enactment — in cases where those officers were not within the process of the court. 2 Pick. 50, Commonwealth v. Carey. 6 Serg. & Rawle, 568, Commonwealth v. Smith. 2 N. Hamp. R. 480, Furbur v. Hilliard. Ace. See also 2 Stark. Ev. 583, note (h). [New ed. 339, note (/).] But see 1 Harper's (S. 0.) Rep. 61, State v. Petty, senib. Contra.] [On the trial of an indictment for counterfeiting bank notes, the prosecution is not com- pelled to establish the falsity of the signature by the officers of the bauk whose names are forged : nor by persons who have seen those ofScers write. The testimony of ex j^arte per- sons, well acquainted with the genuine notes of the bank and with the signatures of the officers, is sufficient to cast the burden of proof on the accused. Sasser \. The State, 13 Ohio, 453. 3Iay v. The State, 14 Ohio, 461. On an indictment for passing a forged bank note, a witness is competent to prove that the note was counterfeit, who had for ten years been employed as cashier of a bank, who in that capacity had received and passed away a great number of the notes of this bank, without ever having had one returned as a counterfeit, and who swore that he believed that he could readily distinguish between a genuine and a counterfeit note, not only from the handwriting of the signatures, but also from the paper, engraving, and general appearance of the note. State v. Harris, 5 Iredell, N. C. 287. A witness who was a clerk in Chancery, and who testified that he had been accustomed to examine signatures as to their being genuine, is not entitled to give an opinion in detect- ing forgeries, whether a signature is genuine or imitated. The People r. Sj)ooncr, I Denio, 343. The general rule upon the subject of proof of handwriting is, that proof is not to be made by the comparison of hands, but by the production of witnesses who have acquired a knowledge of the general character of the handwriting of the party. The modes of acquir- ing such knowledge are either by having seen the party write, or by having seen letters or other documents which he has in the course of business recognized or admitted to be his own. The witness may examine the writing in question and declare his belief founded on CHAP. XXXII. § v.] OF THE EVIDENCE. 393 Upon this subject an able writer upon the law of evidence observes, 'iu!>intca tbat the evidence of persons well acquainted with the character of the ^^'* ' '*'. supposed writer of an instrument, for the purpose of proving or dis- ^^acT^f proving the handwriting, is not in its nature inferior or secondary. He iJcrsons says, " though it may generally be true that a writer is best acquainted ^Yth'th^*'"^ with his own handwriting, yet his knowledge is acquired precisely by hundwrit- thc same means as the knowledge of other persons^ who have been in >"« <^on^!'l- the habit of seeing him write, and differs not so much in kind as in be inforior degree. The testimony' of such persons, therefore, is not of an inferior '-"" sccond- or secondary species ; nor does it give any reason to suspect, as in the "'^^' case where primary evidence is withheld, that the fact to which they speak is not true. It is the common practice to receive such testimony in ordinary cases; and in prosecutions for capital offences it must be equally admissible." (A It is stated as an established rule of evidence, that handwritine: can- Handwriu not be proved by comparing the paper in dispute with any other papers j"eVroved acknowledged to be genuine. (??i) But in a case where the point was, bycoinpari- whether a will had been forged, and a paper purporting to be instruc- ^°° " '^'^ * tions for the will, in the handwriting of the testatrix, became material, per. And a question was put to a clerk of the post-office, who had been used to '?,"• '^^ '"^ . tlio csiinii- inspect franks and detect forgeries. If he could judge whether the natioa of instructions were written by the same person who was admitted to have persons of written a certain memorandum at the bottom of the instructions, and [^^l ijand- who was suspected of having been the contriver of the will ; and the writing bo- question, though objected to, is said to have been allowed by the |^° ^,fj""^ court.(») It is, however, observed, upon this evidence, that it was a imitation, mere comparison of handwritinjj ; and a sort of comparison the least ^^^"^ "^ 01 ail to be trusted, as it was an attempt to trace a resemblance between auce. two papers which the writer would endeavour to make as unlike as *39-4 possible. (o) In the foregoing case, the clerk of the post-office was also allowed to speak to the general appearance of the handwriting of the instructions, and to say whethei', from his general knowledge of writing, the instructions were a natural, or an imitated hand; this matter being considered as a question of art, which might be answered by a witness of skill and experience. (p) The subject underwent very considerable discussion in a subsequent case;(2') from which, it is said, (l) Phil, on Evid. 223, fth edit. rm) Id. ibid. GOT, 8tli edit. In) Goodlitlc dcm. Rcvett v. Braliam, (trial at bar in K. B.) 4 T. R. 497. (o) Phil, on Evid. 430. In Gary v. Pitt, Peakc on Evid. Ixxxv. upon a question being put by the counsel to a witness, whether, having been used to detect forgeries, he could say if the handwriting in question was a genuine handwriting or otherwise, Lord Kenyon, C. J., said he could not receive such evidence; and observed that though it was received iu Good- title V. Brahain, he had not, in his charge to the jury, laid any stress upon it. ( p) Goodtitle r. Braham, .ti//)m, note (»). This witness and another clerk of the post- office, who was also examined, admitted on their cross-examination, that they had never detected an imitation of the hand of a very old person who wrote with difficulty, and might be supposed frequently to stop. And they said that their principal means of knowledge was by seeing whether the letters was painted, that is, gone over a second time with the pen ; which, however, they admitted might happen to any person from a failure of ink. (q) Rex V. Gator, cor. Ilotliam, B., Maidstone Spr. Ass. 1802. 4 Esp. 117. his previous knowledge, concerning Its genuineness. Where a witness stated that he had seen the prisoner write, but had never seen him write before the difficulty in question arose, it was held, that the witness did not come within the rule laid down. Fate v. The FcopU, 3 Gilman, 644. Proof by comparison of hands is inadmissible. The People r. Spooncr, 1 Denio, 343. See post, p. 924, note.] 394 OF FORGERY. [BOOK IV. this distinction may properly be made, namely, that persons of skill may be called to ascertain, whether handwriting is genuine, or whether it was written at interrupted strokes, like the writing of a person attempting to imitate the hand of another : but that they cannot be asked whether the same hand which wrote another paper wrote also the feigned paper,(r) The admissibility, however, of evidence of this kind, was denied by a very learned judge in a late case, where, upon a feigned issue to try a question of forgery, the evidence of an inspec- tor of franks at the post-office was tendered in support of the alleged forgery. The question put to the witness (who had stated that he was unacquainted with the handwriting of the party, whose handwriting was the subject of inquiry) was, whether from his knowledge of hand- writing he believed the handwriting in question to be a genuine signa- ture or an imitation j and an objection being taken to the question, the learned judge allowed the objection, and stated several strong reasons in his report to the Court of King's Bench against the admis- sibility of evidence of this kind, which he termed loose general evidence. The judges of the Court of King's Bench expressed doubts as to the evidence being admissible, and refused to disturb the verdict, on the ground of its having been rejected; for even if it were admissible, it was in their opinions entitled to very little weight. (s) Where a prisoner was indicted for forging a deed, when the case was *395 closed, Bayley, J., called the person whose name was *alleged to have been forged by the prisoner, and desired him to write his name on a sheet of paper, which he did, and Bayley, J. then handed it to the jury, together with the imputed forgery. (<) Where the question is, whether a seal has been forged, seal engravers may be called to show a diflference between a genuine impression and that supposed to be false. («) Of the ad- With respect to the admission of bis own handwriting by a party his own accused, a case is reported, where upon an indictment against Richard handwrit- Beatty and two others, for a conspiracy to defraud, by means of a T)°ifty"^ac- fraudulent acceptance of a bill of exchange, the indictment averred that cused. Beatty, in pursuance of the conspiracy, did fraudidentli/, &c., write his acceptance to the bill ; and no other evidence was given either of the fact of writing the acceptance, or of the handwriting of Beatty, than that of a witness, who proved that the bill, with the acceptance written upon it, was shown to Beatty, who, being asked whether it was a good bill, answered that it was very good. The defendants were convicted, and a question reserved for the consideration of the judges, whether this evidence supported the allegation that Beatty wrote the acceptance; and all the judges were of opinion that it was evidence to be left to the jury upon which they might found their verdict that Beatty wrote the acceptance, (i-) (r) Phil, on Evid. 430. Peake on Erid. 112. In this case of Eex v. Cater, Mothani, B. said, " I perfectly agree with the counsel for the prosecution that there is no difference in point of evidence, whether the case be a criminal or a civil case ; the same rules must apply to both." (s) Gurney v. Langlands,* 5 B. & A. 330. See the chapter on Evidence, for other cases on this subject. C. S. G. [t) Williams' case, 1 Lew. 137. This seems to have been a dangerous experiment, and giv- ing far too much facility to the prosecutor to write his name in such a manner as to suit the occasion. C. S. G, (w) By Lord Mansfield, C. J., in Folkes v. Chad, 1783, MS. cited in Phil, on Evid. 227. {v) Rex V. Hevey, Beatty, and M'Carty, 0. B. 1782, East. T. 22 Geo. 3. 2 East, P. C. c. 19, 5, p. 858, note («). 1 Leach, 232. * Eng. Com. Law Reps. vii. 118. CBAP. XXXII. § v.] OF TUE EVIDENCE. 395 The prisoner was indicted for uttering a forged will, and it was stated On an iu- in the opening, that the supposed will, together with ten different pieces jj^*f1^yg°'„ of paper used for the purpose of setting it up, had writing which was u will said apparently written over pencil marks, which had been rubbed out. An f° ^° ^'"^" engraver, called as a witness, stated, that he was in the habit of looking pencil at minute lines on paper, and hud examined the papers to see if there "V"'?'. were marks of pencil, with a mirror, and had traced marks on the boon rub- paper both of letters and words, and he had no doubt that the pencil ^^'^ "".^ had been rubbed out. Upon being asked what he had observed, the jenco of counsel for the prisoner objected that the rule had been rather to narrow "" fn;;ra- this sort of evidence than to extend it: the rule now acted on was, thatyV* * 1 • 1 t'xani- witnesses shall not be called to state to the jury that which they, as intd tLo intelligent persons, are capable of deciding for themselves: it would be T'^r';'" *''^l' u mirror ih dangerous to suffer a witness to be called to prove that he can see admissible what the jury arc unable to discover. It was answered, that this was not a question of opinion ; it was a matter of fact. The paper required minute inspection, a habit and practice to discover the marks uj)on it. The witness had examined the paper out of court, and could pledge bis oath to the fact that the marks did exist; and if the words were pointed out to the jury, they could see them, and the question was then decided by the jury. This was evidence of a fact, and the question was, whether they were to be assisted in forming a conclusion as to that fact ? Parke, B., after consulting Tindul, C. J., said, that they were both of opinion that i'the evidence was admissible, but the *396 weight of it would depend upon the way in which it would be con- firmed, (iw) The prisoner was indicted for that he, having in his possession a cer- ■\^liat suff- tain bill of exchange, fori^ed the fullowiuir accei)tance on it: 7*""* *^^r" o ' o D 1 ilcnco of (urging a " Accepted, payable at Sir John Lubbock, Bart. & Co.'s, bankers, ^'''^ "'^'''^■ London." ' °^'- The bill was drawn by the prisoner, indorsed by him, and accepted by him. Ou being taken into custody, he did not deny or attempt to disguise the fact; neither did he personate, or in any manner show an intention to personate any other person. The bill was paid away to one of the parties named in the indictment, as intended to be defrauded by it; but it was never presented for payment, and consequently not refused. No person was called to negative the authority of Sir John Lubbock to the prisoner, to accept the bill for him or on his behalf; neither was there any other evidence given of an intent to defraud Sir John Lubbock, or any of the persons named in the other counts of the indictment. Littledale, J., thought the counsel for the prosecution had left the case short, in not pro^^ug an attempt to defraud Sir John Lub- bock, or some one specifically mentioned in the indictment, and was further of opinion, that the acceptance, being proved to be in the hand- writing of the prisoner, was not in itself prima facie evidence of a forgery, sufficient to p)it him on his defence. But after some discus- sion, he allowed the case to go to the jury, intimating that he should reserve the point in the event of a conviction. He then told the jury, that if they thought the prisoner, when he paid away the bill, intended {io) Keg. V. Williams,* 8 C. & P. 434. » Eng. Com. Law Reps, xxxiv. 466. 396 OF FORGERY. [bOOK IV. that the party to whom he paid it should add his name, it was an in- complete acceptance. But that if they considered that he uttered it with a fraudulent intent, meaning that it should pass as the acceptance of the drawee, they would then find him guilty; and he would take the opinion of the judges, as to whether it was an acceptance within the terms of the act of parliament. (a;) (Hving a Giving a forged note to an innocent agent or an accomplice, in order forged noto ^|^,^|. ^^ ^^y. ^^^^ jj.^ jg ^ disposing of and putting it away. The first cent agent count charged the prisoner with disposing of and putting away a forged or an ac- 5^ bank note. The second with offering to one Abraham Newton a that hoVay forged 51. bank note. It appeared from the confession of the prisoner pass it, is a that he had on diflferent occassions prior to the transaction in question, and puttfn*o- purchased 51. and 10^. forged bank notes of a person of the name of it away. Trundell, which he had disposed of by an agent employed by him for that purpose. That on the 27th of January, he met Trundell by ap- pointment at the New Inn in the Old Bailey, and purchased of him six 5^. forged bank notes. It appeared further, that shortly after receiving the same, the prisoner delivered one of them to Burr, who, at the pri- soner's desire, disposed of it in part payment of a horse purchased by the prisoner in Smithfield market. The prisoner and Burr, before they parted, agreed to meet at Harlington on the following day, and to pro- ceed from thence in company to Windsor. They met accordingly, and *397 went together in the prisoner's one-horse chaise to Windsor, where *the prisoner delivered into the hands of Burr one other of the 5/. forged hank notes, which he had received on the preceding day from Trun- dell, directing Burr to purchase for him some tea and sugar at a grocer's at Eton. Burr accordingly purchased the tea and sugar, for which he gave the 51. note given to him by the prisoner, and received the change in small notes and silver, which, together with the tea and sugar. Burr delivered to the prisoner. The prisoner and Burr then returned from Eton to Windsor, when the prisoner delivered to Burr another 51. bank note, which, it appeared from the prisoner's confession, was one of the six 51. bank notes purchased by the prisoner from Trundell. The last mentioned 51. note was the subject of the present indictment, which Burr, by the prisoner's desire, attempted to dispose of at three several shops in Windsor, but without success, the prisoner waiting at a short distance in the street, and communicating with Burr after leaving each shop successively. The prisoner then directed Burr to endeavour to get the note changed at a butcher's, whose name was Newton, telling him that he must get change before he went home. Burr accordingly went into the shop of Newton, leaving the prisoner waiting near the top of the street. Burr purchased some meat, and offered in payment the said 51. forged bank note, so delivered to him by the prisoner. New- ton took the note, and gave Burr the change, deducting the price of the meat, which he delivered to Burr. When Burr offered the note to New- ton, the latter asked him what name he should put upon the note, to which Burr answered, Griles of Heston, not far from Cranford Bridge, near Ilatton. After receiving the change and the meat, and before Burr had quitted the shop, one Hewitt came in, and made some communica- tion privately to Newton, upon which he insisted on having the meat and the change returned to him, and which Burr complied with. Burr was then detained by Newton and Hewitt, on suspicion of having paid (.r) Musgrave's case, 1 Lew. 138. The i:)risoner was acquitted. CHAP. XXXII. § v.] OF THE EVIDENCE. 397 to the former the forged 51. bank note, knowing it to be forged, when Burr stated that Giles, from whom he had received it, was in the street, and desired to be taken to him. Giles had, in the meantime, absented himself, and was afterwards apprehended in New Windsor. The coun- sel for the prosecution insisted that the offer of a 5/. forged note by Burr to Newton, as the agent of the prisoner, was the act and offer of the prisoner. For the prisoner, it was contended that he, not having been present, ought to have been indicted as an accessory before the fact, and could not legally be convicted as a principal. Vaughan, B., told the jury that if they should be of opinion that Burr knew when he offered the note to Newton that it was a forged note, the prisoner could not be considered as a principal : but that if Burr was employed by the prisoner as an innocent instrument, being ignorant that the note was a forged one, it would then be the act of the prisoner, and he might pro- perly be convicted. The learned judge added also, that he thought the delivery of the prisoner to Burr of the note in question, if delivered with a knowledge of its being forged, and for the purpose of being uttered by Burr, was in itself a disposing of and putting away of the note in question, within the 15 Geo. 2, c. 13, s. 11. The jury found the pri- soner guilty, and added that Burr did not know that the note given to him by the prisoner, and by him offered in payment to Newton, was a forged note. And, upon a case reserved, the judges *thought that Burr *398 kuew it was forged, but were of opinion that the giving the note to Burr that he might pass it, was a disposing thereof to him, and that the conviction was right. (,y) The prisoner was indicted for forging and uttering an indorsement on ^vimt is a an instrument, which was in the form of a bill of exchange, in which yjterine one Aickman was the payee ; the indorsement was " received R. Aik- manj" it appeared thit the prisoner took the instrument to the banking house where it was payable and presented it for payment; but the clerk perceiving that the name of the payee in the instrument was spelt Aick- man, with a c, but in the indorsement was spelt without any c, objected to pay it ; upon which the prisoner altered the indorsement so as to make it stand, <' Received for R. Aickman, G. Arscott;" and it was objected that this did not constitute an uttering of the original indorse- ment, as the whole that took place, viz., the presentment of the bill, the objection by the clerk, and the alteration by the prisoner, formed but one transaction, but the court seemed to be of opinion that the present- ing of the bill to the clerk, previous to his objection, was a sufficient uttering. (~) A conditional uttering of a forged instrument is a sufficient uttering. Condition- Upon an indictment for forging and uttering a forged acceptance of a "1 "ttenng bill of exchange, it appeared that the prisoner gave the bill to the manager of a bank to which he was indebted, saying he hoped the bill would satisfy the bank as a security for the debt he owed, and the manager replied that that would depend on the result of his inquiries respecting the acceptors of the bill ; and it was submitted that there was no sufficient uttering as it was at most conditional; and was like ly) Rex V. Giles, R. & M. C. C. R. 166. Sec Rex v. Palmer and Hudson, posf. (z) Rex V. Arscott.* 6 C. & P. 408, Littledale, J., Vanghan, B., and Bolland, B. The pri- soner was acquitted on the ground that t'orjiing an indorsement on a warrant for the pay- ment of money is not within the 1 Wra. 4, c. 6(5. ' Eng. Com. Law Reps. xxv. 401. is not an uttorin 398 OF FORGERY, [bOOK IV. the delivery of a deed as an escrow, as the bill was to be placed to the prisoner's credit or not according to circumstances; but it was held that the uttering was sufl&eient, for a conditional uttering of a forged instru- ment is as much a crime as any other uttering, (a) Giving a Giving a party a forged instrument as a specimen of skill is not an '*"'-^'^° '""uttering. The prisoner was indicted for uttering a Polish note. One struiucni as ^ ^ _ o a specimen Flaum stated that the prisoner showed him a Polish note on one occa- sion, and told him that two thousand and a half of those notes had been lately made, and proposed to him to purchase some of them ; that the witness said he could not use them, and wished to have Austrian notes; that the prisoner said nothing more then, but afterwards, when they became more acffuainted, he gave him a Polish note (the one mentioned in the indictment), and said that they were good, and that they were well made; that he had a quantity of them, and wished the witness to buy some. It was submitted, that the giving of the note under these circumstances, was not a putting in circulation with intent to defraud Nicolas, king of Poland. Littledale, J., said it was a question for the jury; and, in his summing up, said, <'If the prisoner meant it as a spe- cimen, or that the witness might see whether the others were made according to the pattern, then, in my opinion, it would not be an utter- *399 ing *within the meaning of the act. If you are satisfied that it was not uttered with intent to put it into circulation, but was to be kept as a pattern, and afterwards thrown away or put in the fire, then you may acquit the prisoner."(i) Showing a In a case upon the 13 Geo. 3, c. 79, s. 2, (now repealed,) it was held, that showing to a person an instrument with an intent to raise a false idea of the party's substance, did not amount to an uttering ; and also that the leaving it afterwards sealed up with the person to whom it was shown, under cover, that he might take charge of it, as being too valu- able to be carried about, was not an uttering or publishing. (c;) Uttering or A count for uttering a bill of exchange is not supported by proof of accTptance ottering the forged acceptance of the bill. A count alleged that the does not prisoner uttered a forged bill of exchange, setting it out with the support a acceptance upon it ; the evidence was that the acceptance alone was uttering or forged, and known to be so by the prisoner; and it was objected that, by the 1 Wm. 4, c. 6G, s. 3, the forging or uttering of an accep- tance is made a distinct oifence from the forging or uttering a bill of exchange, and, consequently, that the evidence did not support the count for uttering the bill, and it was held, upon a case reserved, that the objection was fatal. (c?) So where the prisoner was a partner in a firm, and was indicted for forging a bill of exchange, and it ap- peared that the acceptance only was forged, he having authority to draw bills in the name of the firm; Parke, B., held that the indict- ment could not be sustained. (e) All facts On an indictment for forging and uttering a forged bill of exchange, c?rcon-° *^® j^^g<^ ^il^ admit evidence of all the facts which form parts of one tinned continued transaction, relating to the uttering of the bill, and will not (a) Reg. V. Cooke,' 8 C. & P. 582, Patteson, J. (b) Rex V. Harris,'' G C. & P. 428. (c) Rex V. Shukard, Russ. & Ry. 200, post. (d) Rex V. Hor\vell,<= R. & M. C. C. R. 405. 6 C. & P. 148. S. C. (e) Butterwick's case, Rose. Cr. Ev. 465. * Eog. Com. Law Reps, xxviii. 535. ** lb. xsxii. 570. <= lb. xxv. 32.', forged in- strument, for^in bill CHAP. XXXII. § v.] AND OP THE KAME. 399 put the prosecutor to elect what particular fact he means to rely upon transaction as the uttering, till the case for the prosecution is closed. Upon an "fi^i^ou an indictment for forging and uttering a forged bill of exchange, it ap- iiuiictment pcared that the prisoner had procured the prosecutor to write his name f*"" '"'«'"« and the word " accepted " on a blank stamp, and afterwards produced iug. the bill to one Edwards, when perfectly blank, with the exception of the acceptance; and it was submitted that, as the showing the paper to Edwards might be considered as an uttering, the prosecutor should elect whether he would press this as the uttering, or state what utter- ing he intended to go upon, as every uttering was a distinct felony. For the prosecution, it was stated, that there were charges in the in- dictment for forging and uttering, and it was proposed to prove them by showing a series of circumstances. Littlcdalc, J., " It is not as if they proposed to give evidence of acts quite distinct from each other. I think wc must hear all the facts, which form parts of one continued transaction, and we cannot put the prosecutor to any election till his case is concluded. (A Questions have frequently arisen as to the necessary proof of the "400 identity or non-existence of the person whose name is chartrcd to be Q"e.stion3 ft ° as to the lorged. ^ proof of •In a case in which it was holden that the payee of a bill of ex-*^'*' identi- change was a competent witness, under the circumstances, to prove that^xistunco' his name indorsed thereon was a forgery, it further became necessary "f the per- to show that such payee, whose name was Wm. Pearce, was the idcn- j,°"jj^J j°^° tical Wm. Pearce to whom the bill was made payable. The drawer charged to of the bill, whose testimony was considered as the best evidence of '^^ forged, the fact, was not produced ; and the question was then raised, whether j^pp^son- a letter of advice which Pearce had received from the drawer, with As to tbo' whom he was intimate, signifying that such a bill had been remitted P'"'"'*".''''"'*' to him; and desiring him, as an act of friendship, to pay the produce to a p"y'<.e of one Coles, in discharge of a debt which the drawer owed to Coles, was'"i''in of ox- sufficient evidence. And Adair, Serjt. Recorder, before whom the'' '^"^*^' prisoner was tried, held that it was not suflficient; and the testimony of Pearce, to show the handwriting to be forged, was ultimately re- jected, on the ground that though he might show it not to be in his own handwriting, yet it might be the handwriting of another "\Vm. Pearce, to whom the bill might be payable. (/;) But upon this case a doubt is suggested, whether the fact of Wm. Pearce being an intimate acquaintance and correspondent of the drawer, no evidence being given of the existence of any other Wm. Pearce to whom it might be supposed that the bill was made payable, was not sufficient evidence of the identity of the payee : and it is observed, that under the cir- cumstances of the case, he had no interest in proving himself to be the real payee. (t) A case has been already mentioned, whore, upon an indictment for Parry'.'? personating a proprietor of stock, such proprietor was examined as ti^'jrfutor of"' witness, to show the amount of the stock he had at the bank ; and that .stock c.\- (/) Rex V. Hart,* V C. & P. C52, cor. Littledalo, J., and Bolland, B. Sec tliis case more fully stated, ante, p. 322. (A) Sponsonby's case, cor. Adair, Serjt. Recorder, 0. B. 1784. 1 Leach, .3.'32. 2 East, P. C. c. 19, s. 65, p. 996, 997. (i) 2 East, P. C. c. 19, s. 65, p. 997. » Eng. Com. Law. Reps. xxv. 325. »> lb. xxxii. G73. 400 OF FORGERY. [BOOK IV. aminoci to the sum for which the prisoner had obtained the dividend warrant, was prove his ^| (^j.^gj gyjjj ^^q jq }^[^ j^^ jj^q ^^q . evidence which would have the identity. .,..,., ' effect of proving his identity. (_;) Downes's The prisoner, James Downcs, was indicted for forging a bill of ex- ^"f^^" , change purporting to have been drawn by one Andrew Holme, payable iiameof tho to the order of John Sowerby. From some letters, written by the pri- iirawer and gQ^gj. ^fter his apprehension, it clearly appeared that the name of the tho ind'or- supposcd drawer, Andrew Holmc, who was the prisoner's uncle, was ser were forged; and it also appeared from the same letters that the John Sow- biif it was crby, whose indorsement was intended to be counterfeited by the pri- hoiden not soner, was the son of another person of the same name at Liverpool, obieetton ^ witness to whom the prisoner paid away the bill stated that he that the questioned the prisoner at the time, and that the account he gave was drawer was j.jjj^j. ^-^q drawer of the bill, Andrew Holme, was a gentleman of credit to prove at Liverpool, and the indorser a cheesemonger there, who had received T°Kn^°™ the bill in payment for cheeses; and the prisoner further said, that he drawn might depend on it, it was a good bill. Neither Andrew Holme, nor there being John Sowerby, the son, were called as witnesses; but John Sowerby, name at the *^^ father, was produced, and he swore that the indorsement was not place ; and iu his handwriting ; that he had lived thirty-six years in Liverpool, and *^'^*h?h l^new' no other person of the same name there, either a cheesemonger or shown by *otherwise, except his son, who had left him about four months before, other evi- ^^^ afterwards carried on the same business of a cheesemonger in Dean- the prison-^ Street. That his son had failed, and was lately gone to Jamaica. That er meant the indorsement was not at all like his son's handwriting; and he did son who^se^' ^^^ believe it to be his. That the prisoner and his son were acquainted, name he and the prisoner had bought corks of him. Another witness also proved the°Da' ee ^^^^ ^^^ indorsement was not like the handwriting of the son, and that and in- he did *not believe it to be his. An objection was taken on behalf of dorser. ^j^g prisoner, that Andrew Holme, the drawer of the bill, ought to have ' 401 jjeen called to prove what John Sowerby it was, in whose favour it was drawn ; but the evidence was left by the learned judge, who tried the prisoner, to the jury, and the prisoner was found guilty. And the point being afterwards submitted to the consideration of the twelve judges, they were all of opinion that the conviction was proper. Buller, J., who afterwards passed sentence upon the prisoner, in adverting to the reasons upon which the opinion of the judges proceeded, said that the objection supposed that there was a genuine drawer of the bill; where- as it was apparent, from the prisoner's own acknowledgments in his letters, that the name of the drawer, as well as that of the indorser, was forged by the prisoner ; and if no real drawer existed, and the objec- tion were allowed, it would be to excuse one forgery because another had been committed. He observed, in the second place, that the pri- soner himself had ascertained who was intended by the John Sowerby whose indorsement was forged ; for, when he negotiated the bill, he represented him to be a cheesemonger at Liverpool ; and by another letter of the prisoner it was clear that he meant Sowerby the son ; for thereby he requested his uncle to go to Sowerby's mother, and desire her to say nothing about it, whether he had any concern or not, or whe- ther he indorsed it or not. And he concluded by saying that, it being proved that the indorsement was not the handwriting of Sowerby the (J) Parr's case, 1 Leach, 434. CHAP. XXXII. § v.] OF THE EVIDENCE. 401 son, the evidence of the forgery was full and complete, and the convic- tion right. (/i-)-}- Where a prisoner was indicted for forging and uttering a check pur- porting to be drawn by G. Andrewes on Messrs. Jones, Lloyd &, Co., proof b}^a clerk of their house that no person of the initial of G. An- drewes kept any account there or had any right to draw checks on their bouse was held sufficient jnvwut facie evidence to go to the jury that G. Andrewes was a fictitious person. (?) So where a prisoner was in- dicted for forging a bill purporting to have been accepted by " Samuel Knight, Market-place, Birmingham/' and the prosecutor stated that he had been twice there to inquire after Knight, and had, on the second occasion, inquired at the bank there, and at a place where the overseers of the poor met, and he had made inquiries at NottiDgham, at which place the bill purported to be drawn for T. Webb the drawer, but was not able to hear any thing of him ; and he admitted that he was a stranger to both these places. It was submitted that the evidence was not sufficient, and that witnesses should have been called, who were acquainted with *Birmingham and Nottingham respectively ; but it was *402 held that it was evidence to go to the jury. It was not certainly the most satisfactory evidence ; nor was it the evidence that was usually given in such cases; but it was evidence, and it was for the jury to say whether it was sufficient, in the absence of any evidence on the part of the prisoner, who best knew the state of the matter. (??) So where the prisoner was indicted for forging and uttering a check for 10/. drawn in the name of John Weston, on Messrs. Cox & Greenwood, and a clerk from their establishment stated that they were bankers and army agents, and that there was not any person of the name of John Weston having any account there, and that the check was presented to him and pay- ment refused on that ground, and added that he was a clerk in the army agent department ; and that he could not swear he knew the names of all the customers in the house, but he did not know any one of the name of Weston in his department, and that he had inquired of the other clerks, and was informed by them that there was no such person in the banking department ; it was objected that the evidence was not suffi- cient, as it was partly hearsay : but it was held that it was j^?-<'»i(t/«c-te evidence, and was sufficient to call upon the prisoner to show that in fact there was a J. Weston having an account at Messrs. Cox & Grecn- wood.(?H) Proof that the prisoner, on uttering a note, represented the maker as Proof thnt living at a particular place and in a particular line of business, with evi- e,!*reure"" dence that it is not that person's note, is sufficient to prove it a forgery, scutud tho (k) Downes's case, Lancaster Sum. Ass. 1780, ilicb. T. IVSO. 2 East, P. C. c. 19, s. 05, iv 997. (/) Re.x V. Backl er,» 5 C. & P. 118, Piirkc, J., and Gaselee, J. (//) Rex V. Kiug,'' 5 C. & P. 123, Park, J. A. J., Parke, J., and BoUand, 1?. The prisoner was acquitted. (m) Rex V. Brannan,= 6 C. & P. 320, Park, .1. A. J., Patteson, J., and Gurney, B. I j Proof that the prisoner, on uttering a note, represented the maker as liviniu-ticular nccessary to prove that it was not that person's note. The prisoner place, and ^^.^g indicted for forging and uttering a promissory note purporting to ticular lino bc drawn by W. Holland, payable to the prisoner or his order. The of business, prisoner told the person, to whom he uttered thc note, that it was drawn With ovi- 1- X / / dcnco that by W. Holland, who kept the Bull's Head at Tipton, who was a respect- it is not able man. The note was dishonoured ; and the prisoner, on being in- son's note, fonucd by the prosecutor that Holland said he knew nothing of the note, said, " Does not he ? I will let him sec that." Holland proved that he kept the Bull's Head at Tipton ; that the note was not made by him, or by his order, or with his knowledge, and there was no other publican of his name at Tipton ; but there was a gentleman of the same name living there on his means, who for distinction was called gentle- man Holland. Upon this evidence, it was objected, 1st, that there was no evidence of thc note being forged ; the description of the maker applied as exactly to the second as to the first W. Holland. 2d. No evidence that at the time of the uttering the prisoner knew Holland of the Bull's Head not to be the maker of the note. 3d. Supposing him to have had such knowledge, verbal misrepresentation did not amount to forgery. 4th. Supposing such misrepresentation could amount to forgery, that was not the offence of which he was convicted, ()i) but of uttering the note knowing it to bc forged, which implied a previous act *403 of forgery. If, therefore, the forgery was not consummated until *the representation was made, the offence of uttering, which must be subse- quent, was never committed. The jury found the prisoner guilty of uttering the note knowing it to be forged, and said they were satisfied that when the prisoner represented it to be the note of Holland of the Bull's Head, he knew it was not his note. And, upon a case reserved, the judges held that, as the prisoner had stated that W. Holland of the Bull's Head was the maker, and from being payee of the note he must have known the particulars, it was sufficient for the prosecutor to show it was not the note of that W. Holland ; and it lay on the prisoner to prove it the genuine note of another W. Holland, if it were so.(o) Offho It has been already observed that the publication of the forged in- knowledo-e strumcnt, with knowledge of the fact, is made a substantive offence, by where the most of the statutes which relate to forgery ;(p) and in cases of this w\th know ^^^"^^ ^^^ knowledge of the fact, or as it is frequently termed the guilfy iodgo oi Vac knowledge, becomes a material part of the evidence. "f" The subject has fact IS made gQjj^Q under consideration in several modern cases. "tive oflFenco. Two prisoners were indicted for disposing of and putting away a VVylie's forged bank note for one pound knoxoing the same to he forged. It was rase. Upon proved that they put off the forged note stated in the indictment at the an indict- ^^iov) of one John Hind ; and then, in order to show that thev knew the incnt for i /> i • i i uttering a notc to be forged, evidence was o0"ered to prove that they had before {'!'^r^ passed other forged notes to other persons. This evidence was objected knowing it to by the counsel for thc prisoners, who urged that no evidence could be (rtl This seems a mistake, the objection being taken before verdict. (o) Rex V. Hampton, R. & M. C. C. R. 255. {p) Ante, p. 319. f [Upon the trial of an indictment for passing counterfeit bank notes, proof that prisoner had, about the same time, passed another note of the same kind, which was thought to be a counterfeit, and which he took back, though this note be not produced at the trial is admissible evidence to prove the scienter. JUariin v. The Commonwealth, 2 Leigh, 745.] CHAP. XXXII. § v.] OF THE EVIDENCE. 403 given of any transaction not stated in the indictment, since the prisoners ^ l>e forg- could not be prepared to defend iheraselves against a charge of which ^^'j^^^ ^„y they had no notice. But the learned judges, bcfurc whom the prisoners be given of were tried, overruled the objection. Lurd EUcnborough, C J., said, °||'^^jg"J'°" " Certainly no different rule of law can prevail with respect to prosccu- having tions by tlie bank from those conducted by any other person. This point ''|j'^^ "*^'^'"" however, is not new ; it was reserved in the case of The King v. Tat- j,ria«ner, in tersall, which was tried at Lancaster, in 1801, by Mr. J. Chambre, and '""'l''" t" received the collective voices of the judges. The question was, whether i;„^„.lmjge in giving evidence to prove an allegation that the party uttered a bank of the for- note, knowing it to be forged, the prosecutor might give the conduct of ^"^' the prisoner in evidence, to show his knowledge of the forgery? The learned judge reserved the question, whether the prisoner had not fur- nished pregnant evidence, and whether the jury, from his conduct tn one occasion, might not infer his knowledge on another ? The opinion of the judges was, that the jury were at liberty to make such inference. The prisoner does not come unprepared ; it is alleged that he uttered a note knowing it to be forged. Are we then to exclude all evidence, but what is furnished by this particular transaction, since without other evi- dence it is impossible to ascertain whether the party uttered the note with knowledge, or under circumstances which showed the uttering to be venial ? I remember a case in which a person came to Manchester with a large parcel of forged notes ; his whole demeanor afforded preg- nant evidence of the mind and purpose for which he came; and *a *40-i question was made, whether that evidence should be received, for it was said that it would be trying the prisoner for other utterings. But if crimes do so intermix, the court must go through the detail. I remember a case where a man committed three burglaries in one night; he took a shirt at one place, and left it at another, and they were all so connected that the court went through the history of the three different burglaries. The more detached in point of time the previous utterings are, the less relation they will bear to that stated in the indictment. But in such case t!ie only question would be, whether the evidence would be sufficient to warrant the inference of knowledge from such particular transactions ? It would not make the evidence inadmissible. Such evidence may come out from these circumstances as to leave no doubt that the prisoners must have known what sort of paper they were passing."(2) So in a case where the prisoner was indicted for forging and for ut- Oilier for- tering with guilty knowledge a bill of exchange, purporting to be drawn [['^"^^^q upon a certain banking house, it was holden that other forged bills upon bank. the same house, which were found upon the prisoner at the time of his apprehension, were admissible as evidence of guilty knowledge. (/•)"{■ In a subsequent case the prisoner was also indicted for disposing of Ball's case, and putting away a forged bank note, which purported to be' a promis- ^P'^°* (q) Rex v.'Wylie and another, cor. Lord ElicnborouKli, C. J., Heath, J., and Thonifon, B., 0. B. 1804. 1 New R. 92. S. C. by the name of Whiley and Ilaincs, 2 Leach. 983. And sec ante, vol. I, p. 80, 81, as to the guilty knowledge in uttering counterfeit money; and I'hil. on Evid. (3d edit.) 142, 143. (r) Rex I'. Hough, 1806, Russ. & Ry. 120. ■j- [Spencer v. The Commonwealth, 2 Leigh, 751. State v. Houston, 1 Bailey, 300; nor does it render such evidence inadmis.sihlc, that the defendant had been formerly acquitted vipon an indictment for uttering the last mentioned note, knowing it to be forged, but the objection onlv goes to weaken its elfect with tlic iurv. Ibid. I'jV/c State v. I'clti/, Harper, 59.] 404 OF FORGERY. [BOOK IV. similar in- gory note of the governor and company of the Bank of England, hnow- ev^idenoe'is *''i7 ^^^^ same to he forged. Clear proof was adduced, that the note in admissible question was forged, and that it had been uttered by the prisoner at East °^>r^baviu°" -''^'^^™' *^^ *^^ '^"^^^ of Junc, 1807, SO that the only remaining question some time" was, as to his agiQ,j i\^q prisoner had paid away a 1^. note, that the woman to forged rote whom he paid it, on finding it to be bad, sent word of it to the barracks, which has thereupon the prisoner, accompanied by one of the Serjeants of the troyed, and regiment, came to the woman's house to ask for the note, and to give is not good money in exchange for it. They found, however, that the woman havTbee'ri ^^^ given the note to the constable, whom they immediately sent for : forged. the constable, however, did not come to thera, and the Serjeant and the prisoner were obliged to return to the barracks without seeing him. But before they went away, they left two half sovereigns to make good the debt. Soon after they were gone, the constable came in, and finding that the woman was satisfied as to her money, he put the note into the (fj) Rex V. Balls," R. & M. C. C. R. 4l0. S. C. ? C. & P. 426, 429. (z) Hodgson's case, 1 Lew. 103, Hullock, B., 1827. (a) Rex V. Smith,b 2 C. & P. 633. Vaiigham, B., 182'7. (bj Kirkwood's case, 1 Lew. 103, 1830. (c) Martin's case, 1 Lew. 104, Littledale, J. {d) Reg. V. Josiah Aston, Worcester Spr. Ass. 1838, MS. C. S. G. (e) Reg. V. Lewis, Arch. Cr. P. 365, 8th edit. {/) Rex V. Millard, Russ. & Ry. 245. » Eng. Com. Law Reps, xxxii. 571. *■ lb. xii. 295. CHAP. XXXII. § v.] OP THE EVIDENCE. 407 fire. When the facts relating to the uttering the 5/. note bad been gone tbrougb, tbe counsel for the prosecution was about to prove ihcsc facts respecting the 1^. note. But Bayley, J., interposed, and expressed a strong doubt whether they were admissible, no evidence having been given of the note being a forged note, and the note it.self not being produced ; he, however consented to receive the evidence, stating, that if the prisoner should be convicted, he would reserve the point for the opinion of the judges. (y) It has been held on the trial of an indictment for forging a bill of f't''''^nicnts exchange that evidence of what the prisoner said respecting other bills rrc'petting of exchange which arc not in evidence, is not admissible. (A) And al- bills which though a letter written by the prisoner to a third person, stating that ju*ced*^or'^°" that person's name is on another bill, and desiring him not to say that proved to that bill is a forgery, is receivable in evidence, yet the jury ought not "^^ forged, to consider it as evidence that the other bill is forged, unless such bill is produced, and the forgery of it proved in the regular way. Upon an indictment for forging and uttering an *acceptance of W. Prosser to a *408 bill of exchange, a letter written by the prisoner to one Lawrence, in which he stated that a 20^. bill was the last one of Prosser's with Law- rence's name upon it, and requested Lawrence on no account to say it was a forged bill, and to be careful of speaking to Prosser, was tendered in evidence, and objected to as it related to another bill, and, at all events, that the bill to which it referred ought to be put in ; Coleridge, J., held the letter receivable, and, in summing up, said, "With respect to the letter that has been read, I think that you ought not to take it as proof that the bill mentioned in it is forged. Bills which are not the subject of indictment, are often given in evidence to show guilty know- ledge, but there is in such cases strict proof that those bills are forged. No such evidence is given here, nor is the bill even produced. It there- fore may be, that the bill alluded to in the letter is in some respects irregular, but still it may not be a forgery. "(t) The punishment of forgery at common law is, as for a misdemeanor. Punish- by fine, imprisonment, and such other corporal punishment as the court, ™*"*- in their discretion, shall award (/t) The punishment ordained for the offence by the statute law will be mentioned, wath the other enactments of the different statutes, in the succeeding chapters. A consequence of the judgment for forgery was an incapacity to be Incompe- a witness until restored to competency by the king's pardon. (y) **^"^y ^'^ ^° (ff) Phillips' case, 1 Lew. 105. The result of the case is not stated, but it is s.nid that the learned judge subsequently expressed the following opinion : " That the i)rosccutor could not give in evidence anything that was said by the prisoner at a time collateral to a former uttering, in order to show that what he said at the time of such former uttering was false, because the prisoner could not be prepared to answer or cx])lain evidence of tliat descrip- tion. That the prisoner is called upon to answer all the circumstances of a case under con- sideration, but not the circumstances of a case which is not under consideration : that the prosecutor is at liberty to show other cases of the prisoner having uttered forged notes, and likewise his conduct at the time of uttering them. But that what he said or did at another time, collateral to such other utterings, could not be given in evidence, as it was impossible that the prisoner could be prepared to combat it." (h) Reg. V. Cooke,» 8 C. & P. 580, Patteson, J. (e) Rex V. Forbes," 7 C. & P. 224. See this case, ante, p. .^41. tji) 1 Hawk. P. C. c. 70, s. 1. 4 Bla. Com. 247. Bac. Ab. Forgeri/. 2 East, P. C. c. 19, B. 69, p. 1003. The corporal punishment of the pillory may not now be inflicted for this oflence ; 56 Geo. 3, c. 138. 1 Vict. c. 23. (y) Co. Lit. G 6. 2 Hawk. P. C. c. 46, s. 101. Com. Dig. Testmoign, A. 3. But see now the 9 Geo. 4, c. 32, s. 3, in the Chapter on Evidence. C. S. G. » Eng. Com. Law Reps, xxxiv. 538. '' lb. xxxii. 497. 408 OF FOKGERY. [BOOK IV. a witness And the 12 Greo. 1, c. 29, provides, that in case persons convicted of after judg- f^j-g^ry gijall afterwards practise as attorneys, solicitors or law agents. Attorneys tlic court where the suit or action is brought shall, on complaint, ex- oonvicted amine the matter in a summary way, in open court, and cause the "nd'aft'oT- offender to be transported for seven years. wards prac- The principal statutes relating to the crime of forgery having been tising. consolidated by the 1 Wm. 4, c. G6, which contains general provisions applicable to all the offences affected by that act, it is thought expe- dient to introduce those provisions in this place, in order that they may be more readily referred to in the subsequent chapters. 1 Wm. 4j e. The 1 Wm. 4, c. 66, s. 1, reciting that " several offences relating to ^^* forged writings, and to other forged and counterfeit matters, and to false personation, false oaths, false entries, and other false matters, are now by virtue of several statutes, punishable with death ; and that it is ex- pedient that none of these offences shall hereafter be punishable with death, unless the same shall be made punishable with death by this act; and also that the statutes concerning such of these offences, whether punishable with death or otherwise, as may more frequently or seriously affect the interests of his majesty or his subjects, should be amended, No forge- and consolidated into this act," enacts, " that where by any acts now ries or other JQ force any person falsely making, forging, counterfeiting, erasing, fences, ° or altering any matter whatsoever, or uttering, publishing, offering, which are disposing of, putting away, or making use of any matter whatsoever, "hlf ^''n '^'' knowing the same to be falsely made, forged, counterfeited, erased, or tinue so un- altered, or any person demanding or endeavouring to receive or have less ex- ^ thing, or to do or cause to be done any act, upon or by virtue of made cap- any matter whatsoever, knowing such matter to be falsely made, forged, ital by this counterfeited, erased, or altered, would, according to the provisions con- - fsQ taincd in any of the said acts, be guilty of felony, and liable to suffer death as a felon ; or where by any acts now in force any person falsely personating another, or falsely acknowledging any thing in the name of another, or falsely representing any other person than the real party to be such real party, or wilfully making a false entry in any book, account, or document, or in any manner wilfully falsifying any part of any book, account, or document, or wilfully making a transfer of any stock, an- nuity, or fund, in the name of any person not being the owner thereof, or knowingly taking a false oath, or knowingly making a false affidavit or false affirmation, or demanding or receiving any money or other thing by virtue of any probate or letters of administration, knowing the will on which such probate shall have been obtained to have been false or forged, or knowing such probate or letters of administration to have been obtained by means of any false oath or false affirmation, would, according to the provisions contained in any of the said acts, be guilty of felony, and liable to suffer death as a felon ; or where by any acts now in force any person making or using, or knowingly having in his custody or possession, any frame, mould or instrument for the making of paper, with certain words visible in the substance thereof, or any person making such paper, or causing certain words to appear visible in the substance of any paper, would, according to the provi- sions contained in any of the said acts, be guilty of felony, and liable to suffer death as a felon; then, and in each of the several cases as aforesaid, if any person shall, after the commencement of this act be convicted of any such felony as is hereinbefore mentioned, or of aiding, act, CHAP. XXXII. § v.] OF THE PUNISHMENT. 409 abetting, counseling, or procuring the commission tbcreuf, such per- son shall not suffer death for the same, unless the same shall be made punishable with death by this act, and if the same shall not be made AH forgo- punishable with death by this act, in such case every person who s^iall, J^^^^ J^^p^J," after the commencement of this act, be convicted of any such felony, and not de- or of aidin<', abettinf;, counseling or procuring the commission thereof, f''.""'-''^ f° ^^ D' o' D I o ' tins act, shall be liable, at the discretion of the court, to be transported beyond shall bo the seas for life, or for any term not less than seven years, or to be iui- 1".'"'-'""*! witli triins- prisoned for any term not exceeding four years nor less than two years; pyrtation. provided always, that nothing herein contained shall aflfect or alter any Siivin^' of acts relating to the coin of this realm, or to any coin of any other realm ",|^J'jy''"J^"p lawfully current within this realm." Sec. 23, reciting the 5 Eliz. c. It, and that there arc certain acts by Puni-;!!- which persons convicted of certain oilences mentioned in those acts are ""jlj!'^"*^ ^'"^ subjected to the same pains and penalties as are imposed by the said act m, adoiited of Queen Elizabeth for the offences first enumerated in that act, and V ''t''^^"'' that the said act is thereinafter repealed and that it is expedient to sub- ed, and slitutc other punishments in lieu of the punishments of that act, enacts, others sub- that '' every person who shall, after the commencement of this act, be convicted of any offence which is now subjected, by any act or acts, to the same pains and penalties as are imposed by the said act of Queen Elizabeth for any of the offences first enumerated in that act, shall be guilty of felony, and shall, in lieu of such pains and penalties, be liable, at the discretion of the *court, to be transported beyond the seas for *410 any term not exceeding fourteen years, nor less than seven years, or to be imprisoned for any term not exceeding three years nor less than one year." By sec. 24, " If any person shall commit any offence against this act. All forgers or shall commit any ofi'ence of forging or altering any matter whatso- ""^ n,"y'^be ever, or of offering, uttering, disposing of, or putting off any matter tried in the whatsoever, knowing the same to be forged or altered, whether the '^'^""'>' ' o i-Tii ii- where they offence in any such case shall be indictable at common law or by virtue are aj.pre. of any statute or statutes, made or to be made, the offence of every such hcnded or offender may be dealt with, indicted, tried, and punished, and laid and ^^jy charged to have been committed, in any county or place in which he shall be apprehended or be in custody, as if his ofi'ence had been actually committed in that county or place ; and every accessory before or after the fact to any such ofi'ence, if the same be a felony, and every person aiding, abetting, or counseling the commission of any such ofi'ence, if the same be a misdemeanor, may be dealt with, indicted, tried, and punished, and his offence laid and charged to have been committed in any county or place in which the principal ofi'ender may be tried." I3y sec. 2.5, "In the case of every felony punishable under this act, As to the every principal in the second degree, and every accessory before the fact, j',['|'i|y''*g.* shall be punishable with death, or otherwise in the same manner as the cond do- principal in the first degree is by this act punishable; and every acccs- S'"*^"^""^.^^ sory after the fact to any felony punishable under this act shall, on conviction, be liable to be imprisoned for any term not exceeding two years." By sec. 2G, '< "Where any person shall be convicted of any offence The court punishable under this act, for which imprisonment may be awarded, it i,ard labour shall be lawful for the court to sentence the offender to be imprisoned, or solitjiry with or without hard labour, in the common gaol or house of correction, '' 410 OF FORGERY. [BOOK IV. mont for and also to direct that the offender shall be kept in solitary confinement a5a?n*'uliis ^^"^ ^^^ wholc OF anj portion or portions of such imprisonment, as to the act. court in its discretion shall seem raect."(_y) As to of- By sec. 27 " Where any offence punishable under this act shall be fences com- pQjj^jj^i^fgjj within the jurisdiction of the Admiralty, the same shall be sea. dealt with, inquired of, tried, and determined in the same manner as any other offence committed within that jurisdiction." Rule of in- By sec. 28, '-'Where the having any matter in the custody or posses- tfon'jis'Vo ^""^^ ^^ ^^y person is in this act expressed to be an offence, if any per- criininal son shall have any such matter in his personal custody or possession, (/c) possession, Qj. siiall knowingly and wilfully have any such matter in any dwelling- parties in- house or other building, lodging, apartment, field, or other place, open tendedtobo or incloscd, whether belonging to or occupied by himself or not, and whether such matters shall bo so had for his own use or for the use or benefit of another.^ every such person shall be deemed and taken to have euch matter in his custody or possession within the meaning of this act; and where the committing of any offence with intent to defraud any per- son whatsoever is made punishable by this act, in every such case the word " person" shall throughout this act be deemed to include his majesty or any foreign prince or state, or any body corporate, or any *411 company or society of persons *not incorporated, or any person or num- ber of persons whatsoever who may be intended to be defrauded by such offence, whether such body corporate, company, society, person, or number of persons shall reside or carry on business in England or else- where, in any place or country, whether under the dominion of his ma- jesty or not; and it shall be sufficient in any indictment to name one person only of such company, society, or number of persons, and to allege the offence to have been committed with intend to defraud the person so named, and another or others as the case may be." This act By sec. 29, << This act shall not extend to any offence committed in not to ex- Scotland or Ireland." tend to ... Scotland or By scc. 30, " where the forging or altering any writing or matter Ireland, whatsoever, or the offering, uttering, disposing of, or putting off any to the forg- writing or matter whatsoever, knowing the same to be forged or altered, ing or ut- jg in this act expressed to be an offence, if any person shall, in that Enr'-lTuul P^^i"'' 0^ ^^^^ United Kingdom called England, forge or alter, or offer, documents utter, dispose of, or put off, knowing the same to be forged or altered, to"br\n."cfe ''^"3' ^"^^ writing or matter, in whatsoever place or country out of Eng- or actually land, whether under the dominion of his majesty or not, such writing g^f? *'"^.°^ or matter may purport to be made or may have been made, and in .>ind to forg- whatever language or languages the same or any part thereof may be ing or nt- expressed, every such person, and every person aiding, abetting, or England Counseling such person, shall be deemed to be an offender within the bills of ex- meaning of this act, and shall be punishable thereby in the same manner promissory ^^ ^^ *^^ writing Or matter had purported to be made or had been made notes, in England ; and if any person shall in England forge or alter, or offer, purporthi^t^' utter, dispose of, or put off, knowing the same to be forged or altered, to be pay- any bill of exchange or any promissory note for the payment of money, or any indorsement on or assignment of any bill of exchange or promis- sory note for the payment of money, or any acceptance of any bill of exchange, or any undertaking, warrant, or order for the payment of able out of England. y) See the 1 Vict. c. 90, s. b,post, p. 413. k) See vol. 1, p. 83, as to the construction of these -words in the 2 Wm. 4, c. 34, s, 8. CHAP. XXXII. § v.] OF THE PUNISHMENT. 411 money, or any deed, bond, or writing obligatory for the payment of money, (whether sueh deed, bond, or writing obligatory shall be made only for the payment of money, or for the payment of money together with some other purpose,) in whatever place or country out of England, whether under the dduiiuion of his majesty or not, the money payable or secured by such bill, note, uudeitaking, warrant, order, deed, bund, or writing obligatory may be or may purport to be payable, and in whatever language or languages the same respectively or any part thereof may be expressed, and whether such bill, note, undertaking, warrant, or order be or be not under seal, every such person, and every person aiding, abetting, or counseling such person, shall be deemed to be an offender within the meaning of this act, and shall be punishable thereby in the same manner as if the money had been payable or had purported to be payable in England." The 2 & 3 Wm. 4, c. 128, s. 1, reciting that by the 1 Wni. 4, c. CG, 2 A :; Wm. <' it was provided, that if any person should after the commencement of „' ^'' ' that act be convicted of any forgery, or other offences therein named or hereattor described, for which he would at the time of the passing of that act convietod have been liable to the punishment of death, he should not suffer death punishable for the same, unless the same should be made punishable with death by "''''> ""^^'li that act ; and whereas by the law *and practice now prevailing in Scot- ^.jjgj „^.{^ land and in Ireland the penalty of death may be awarded, in certain shall wi cases, for forgery, for uttering counterfeit instruments, and for false per- |,"',^j[j ^^^ Bonation ; and whereas it is expedient to abolish the punishment of shall bo death for offences of that nature, except so far as relates to wills and •ra'ifporicd certain powers of attorney, as hereinattcr mentioned, enacts, " that ^ifA-io where any person shall after the passing of this act be convicted of any offence whatsoever for which the said act enjoins or authorizes the in- fliction of the punishment of death, or where any person shall after the passing of this act be convicted in Scotland or Ireland of any offence now punishable with death, which offence shall consist wholly or in part of forging or altering any writing, instrument, matter, or thing what- soever, or of offering, uttering, or disposing of any writing, instrument, matter, or thing whatsoever, knowing the same to be forged or altered, or of falsely personating another, then and in each of the cases afore- said the person so convicted of any such offence as aforesaid, or of pro- curing or aidinjx or assistin"; in the commission thereof, shall not suffer death, or have sentence of death awarded against hiiu, but shall be transported beyond the seas for the term of such offender's life. "(a) By sec. 2, "Notwithstanding anything hereinbefore contained this This net act shall not be construed to affect or alter the said recited act, or any "'^ )" ^■•^- other act or law now in force, so tar as the same may autiiorize the punisb- punishmcnt of death to be inflicted upon any person convicted, cither ments for in England, Scotland, or Ireland, of forging or altering, or of offering, u'jtyrin^ uttering, or disposing of, knowing the same to be forged or altered, any wills an J will, testament, codicil, or testamentary writing, with intent to defraud p,,',^.',''^" „f any body corporate or person whatsoever, or of forging or altering, oruttomuy. of uttering, knowing the same to be forged or altered, any power of attorney or other authority to transfer any share or interest of or in any (y the ro- ' 2 & 3 Wm. 4, c. 123, shall suffer death as a felon, and as enacts that cited acts, a every principal in the second degree, and every accessory before the ■shablo f'lct, should bc punishable with death or otherwise in the same manner horoafter. as the principal in the first degree was by that act punishable ;" and also recites the 2 & 3 Wm. 4, c. 59, s. 19, the 2 & 3 Wm. 4, c. 123, s. *413 2, the 2 & 3 Wm. 4, c. 125, s. 64, the 5 & 6 Wm. 4, *c. 45, s. 12, and the 5 & 6 Wm. 4, c. 51, s. 5, and that it is expedient that none of the hereinbefore mentioned offences should be punishable with death, and enacts, " that if any person shall after the commencement of this act (1st of October, 1837) be convicted of any of the offences hereinbefore mentioned, such person shall not suffer death, or have sentence of death awarded against him or her for the same, but shall be liable, at the dis- cretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned (?) for any term not exceeding four years, nor less than two years." Persons See. 2, recites the 2 & 3 Wm. 4, c. 123, s. l,(m) the 3 & 4 Wm. 4, withtans'- ^- ^^' ^- 2 ''^ ^^^ the 3 & 4 Wm. 4, c. 44, s. 3, and enacts that " so portation much of the three lastly hereinbefore in part recited acts as relates to ^r ^^h*' *^^ punishment of persons convicted of offences for which they are recited liable Under the said act of the second and third years, or the said act acts, how of the third and fourth years respectively of his late majesty's reign, to 'be transported for life, shall from and after the commencement of this act be and the same is hereby repealed ; and that from and after the passing of this act, every person convicted of any of such offences shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such person, or for any term not less than seven years, or to be imprisoned (?;) for any term not exceed- ing four years nor less than two years." Hard la- By sec. 3, " when any person shall be convicted of any offence pun- hnpriron^ ishable under this act, for which imprisonment may be awarded, it shall inent. be lawful for the court to sentence the offender to be imprisoned, with Solitary q^ without hard labour, in the common gaol or house of correction ; and Tnent. ^^so to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet." The 1 Vict. c. 90, s. 4, reciting that " by the laws now in force it is lawful for the court before whom any person shall be convicted of cer- (Z) With or without hard labour. See sec. 3, infra. (m) Ante, p. 411. (n) With or without hard labour. See the next section. CHAP. XXXIII.] OF FORGING RECORDS AND JUDICIAL PROCESS. 413 tain oiFences for which imprisonment or imprisonment with hard labour may be awarded, to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprison- ment, or of such imprisonment with hard labour," enacts, '' that after the commencement of this act (1 Oct. 1837) it shall not be lawful for any court to direct that any offender shall be kept in solitary confiuc- ment for any longer periods than one month at a time, or than three months in the space of one year." ♦CHAPTER THE THIRTY-THIRD. *414 OF THE FORGING, ALTERING, &C., OF RECORDS AND JUDICIAL PROCESS. It is clear that, by the common law, a person may be guilty of for- gery by falsely and fraudulently making or altering any matter of re- cord ; for, since the law gives the highest credit to all records, it cannot be but of the utmost ill consequence to the public to have them either forged or falsified. (a) If, therefore, a man should insert in an indict- ment the names of those against whom in truth it was not found, it would be forgery. (^^)"|" Even if the offence should not constitute a forgery; yet in no in- stance can the counterfeiting or alteration of any judicial process or matter be less than a very high misdemeanor, as tending to stop or im- pede the course of justice, or to encroach upon the judicial power. (c) The defacing or rasure of any record, without due authority, is an offence at common law, highly punishable b}' fine and imj)risonment.(r/j And it has been holden that any person making or knowingly using a false affidavit, taken abroad, (though a forging could not be assignable on it here,) in order to mislead our own courts, and to prevent public justice, is punishable by indictment for a misdemeanor. (r) Judges are highly punishable at common law for ofiences of this kind.(y') And the statute 8 Rich. 2, c. 4, applies expressly to judges as well as to clerks. The 8 Rich. 2, c. 4, enacts, that "i{ any judge or clerk" offend by S Rich. 2, c. (a) 1 Hawk. P. C. c. YO, s. 1, 8. Bac. Ab. Forgery (H). Roll. Ab. G5, 76. Yelv. H6. Cro. Eliz. 178. (b) Rex V. Marsh and other?, 3 Mod. GG. 1 Hawk. P. C. c. 70. s. 2. (c) 2 East, P. C. c. 19, s. 9, p. 866. (d) 3 Inst. 71, 72. 1 Hale, 646. 1 Hawk. P. C. c. 47, s. 1. (e) Omealy v. Newell, 8 East, 364. Andsee Fawcett's case, 2 East, P. C. c. 19, s. 7, p. 862. Ante, p. 360. (/) 3 Inst. 72. 1 Hale, G4G. In 3 Inst. 72, the case of Jnstice Inp^ham, (or Ilcnpham, or as Hawkins says, Ingram) who was a judge in the reign of Edward I., is mentioned thus : He paid " eight hundred marks for a fine, for that a poore man being fined in an action of debt at thirteen shillings four-pence, the said justice, moved with pity, caused the roll to be rased, and made it si.x shillings eight-pence. This case Justice Southcot remembered, when Catlyn, Chiefe Justice of the Kings Bench, in the reign of Queen Elizabeth, would have or- dered a rasure of a roll in the like case, which Southcot, one of the judges of that court, ut- terly denied to assent unto, ami said ojjcnly, that he meant not to build a clock-house; tor (said he) with the fine that Ingham paid for the like matter, the clock-house at Westminster was builded, and furnished with a clock, which continueth to this day." f [Wlicre a person puts his name on a blank i)iece of i)aper and agrees that the odicer may fill up a delivery bond above his signature, the oflicer commits no forgery, so long as he acts within the scope of his authority. Griffith v. The Commotncealth, 5 J. J. Marsh. 320.] 414 OF FORGING RECORDS AND JUDICIAL PROCESS. [bOOK IV. 4. As to the false entering of pleas, raising of rollr., or changing of verdicts, to &c^, ''falsely ^^^ dispersion of any one, he shall be punished by paying a fine to the entering king, and making satisfaction to the party. ^^^*ii*^' ^'^^'^ ^ ^^"^' ^' ^' ^^' ^' ^^' '^"^cts, <' that if any person shall forge ^-'■^ or counterfeit, or shall utter knowing the same to be forged or counter- 66^s°'ll' °'^'^''''^^> ^^^^ g''^^*- seal of the United Kingdom, his majesty's privy seal, Forging thorny privy signet of his majesty, his majesty's royal sign manual, any great soal, of jjig majesty's seals appointed by the twenty-fourth article of the privy sig-' union to be kept, used, and continued in Scotland, the great seal of Ire- not, royal land, or the privy seal of Ireland, every such offender shall be guilty of u(fl°&a°' ^'S^^ treason, and shall suffer death accordingly :{[/) provided always, treason. that nothing contained in an act passed in the seventh year of the reign of King William the Third, entitled 'an act for regulating the trials in cases of treason and misprision of treason,' or an act passed in the seventh year of the reign of Queen Anne, intituled 'an act for improv- ing the union of the two kingdoms,' shall extend to any indictment, or to any proceedings thereupon, for any of the treasons hereinbefore men- tioned." 62 Goo. 3, The 52 Geo. 3, c. 143, enacts, « that if any person shall make, forge, Any person °^ counterfeit, or cause or procure to be made, forged, or counterfeited, forging, the mark or hand of the receiver of the prefines at the alienation office, h*' d*''f th "P'^'^ ^^y ^^'^*' °^ covenant whei-eby such receiver or any other person receiver of s^'dW or may be defrauded, or suffer any loss thereby; every person so the prefines offending, and being thereof convicted, shall be adjudged guilty of enation of- felony, and shall suffer death as a felon, without benefit of clergy."(/i) nco. By the 1 & 2 Vict. c. 91, s. 1, the records in the Tower of London, 1 &2 Vict. Chapter House of Westminster, Roll's Chapel, Petty Bag Office, offices in the custody of the Queen's Eemembrancer of the Exchequer, or of any other officer of the Exchequer, Augmentation Office, First Fruits and Tenths' Office, office of the Land Revenue and Enrolments, of the late auditor of the land revenues of England and Wales, and the re- cords lately deposited in the office of the Pells of the Exchequer, and now in the custody of her majesty's Comptroller of the Exchequer, the records belonging to the Courts of Chancery, Exchequer, and Admi- ralty, Queen's Bench, Common Pleas, and Marshalsca, the records of the lately abolished Courts of Wales and of Chester, Durham, and of iff) The present punishment is transportation for life, or for any term not less than seven years, or imprisonment for any term not exceeding four nor less than two years, with or without hard labour, in the common gaol or house of correction ; and the offender may be directed to be kept in solitary confinement for any portion or portions of such imprisonment, not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet. See the 1 Vict. c. 84, ss. 2 and 3, ante, p. 41.S. The 2 & 3 Wm. 4, c. 123, ante, p. 411, took away the punishment of death in all cases of forgery, except the forging of wills aud powers of attorney, and substituted transportation for life in its place. In treason there are no accessories, but all are principals. Fost. 341. C. 5. G. (A) The 52 Geo. 3, c. 143, not being expressly repealed by the 1 "Wm. 4, c. 66, and the for- geries mentioned in the 52 Geo. 3, c. 143, not being made capital by the 1 Wm. 4, c. 66, they are now punishable (under the 1 Wm. 4, c. 66, s. 1 and 26, ante, p. 408 and 410, and the 1 Vict. c. 90, s. 5, ante, p. 413) with transportation for life, or for any term not less than seven .years, or imprisonment for any term not exceeding four nor less than two years, with or without hard labour, in the common gaol or house of correction, and the offender may be directed to be kept in solitary confinement for any portion or portions of such imprisonment not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet. As to the punishment of principals in the second degree and accessories, see the 1 Wm. 4, c. 66, s. 25, ante, p. 410, and 1 Vict. c. 90, s. 5, ante, p. 413. C. S. G. CHAP. XXXIV.] FORGERIES RELATING TO PUBLIC FUNDS, ETC 415 the Isle of Ely, are placed under the charge of the Master of the Rolls. ((■) And by sec. 8, *a public record office is to be established, *41G and by sec. 12, the Master of the llolls may allow a copy to be made of any of the said records, which is to be "certified as a true and authentic copy by the deputy keeper of the records, or one of the as- sistant record keepers," and to "be sealed or stamped with the seal of the record office j" and by sec. 13, such copies arc made evidence. By sec. 19, "every person belonging to or employed in the said pub- Cortifying lie record office, who shall certify any writing as a true and authentic 1^,''""'"'"^ iuIho copy copy of a record in the custody of the IMastcr of the llolls, knowing the of rcfords, same to be false in any material part, and every person who shall coun-'^ felony, tcrfeit the signature of an assistant record keeper for the purpose of counterfeiting a certified copj-- of a record, or shall forge or counterfeit the seal of the public record office, shall be guilty of felony, and being duly convicted thereof, shall be liable at the discretion of the court to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years." By sec. 20, the word " records" means " all rolls, records, writs, books, proceedings, decrees, bills, warrants, accounts, papers, and documents whatsoever of a public nature belonging to her majesty, or now de- posited in any of the offices or places of custody before mentioned. "(7) ♦CHAPTER THE THIRTY-FOURTH. *417 OF FORGERIES RELATING TO THE PUBLIC FUNDS, AND THE STOCKS OF PUBLIC COMPANIES The 1 Wm. 4, c. 6G, s. 5, enacts, " That if any person shall wilfully 1 VTm. 4, c. make any false entry in, or wilfully alter any word or figure in, any of jl!*;^: ^• the books of account kept by the governor and company of the Bank faisc'cn- of England, or by the governor and company of I\Ierchants of Great ''"'''^ '"^ ^^^ Britain trading to the South Seas and other parts of America; and for ^l.^ii^f, tho encouraging the fishery, commonly called the South Sea Company, in accounts of which books the accounts of the owners of any stock, annuities, or ^"^. {.'^^[?^^ other public funds which now arc or hereafter may be transferable at trnns^f.T of the Bank of England or at the South Sea House, shall be entered and ?"''"*-' ''f'' . ' in jiiiy Oilier kept, or shall in any manner wilfully falsify the accounts of such owners name than in any of the said books, with intent in any of the cases aforesaid to '''" *'""'' defraud any person whatsoever; or if any person shall wilfully make"""^""' any transfer of any share or interest of or in any stock, annuity, or other public fund which now is or hereafter may be transferable at the Bank of England, or at the South Sea House, in the name of any per- son not being the true and lawful owner of such share or interest, with intent to defraud any person whatsoever; every such ofi'eudcr shall be (/) By sec. 2, the queen in council may order records in other offices to be included in the act. *' {j ) The act contains no provision as to principals in the second degree or accessories. But the principals in the second degree are punishable as principals in the first degree, ac- cording to the general rule, 4 Bla. Com. 39, and the accessories, as for a felony not specially provided for, under the 7 & 8 Geo. 4, c. 28, s. 8 and 9, and I Vict. c. 90, s. 5. Sec note (b), ante, p. 135. 417 OF FOKGERIES RELATING TO THE [bOOK IV. guilty of felony, and, being convicted thereof, shall suffer death as a felon."(«) Sec. C. By sec. G, ''if any person shall forge or alter, or shall utter, know- I'orging a jj ^^^ same to be forged or altered, any transfer of any share or interest transferor ,p . ° . i i i- p i i • i auy public 01 or in any stock, annuity, or other public fund which now is or here- stoek or of f^f(.gj, j^^y be transferable at the Bank of England or at the South Sea ccrtniu otherstock; House, or of Or in the capital stock of any body corporate, company, or power of society which now is or hereafter may be established by charter or act trau^sfer the ^^ Parliament, or shall forge or alter, or shall utter, knowing the same same or re- to be forged or altered, any power of attorney^i) or other authority to do'nds ^^^" transfer any share or interest of or in any such stock, annuity, public tiioroon; fund. Or capital stock, as is *hereinbefore mentioned, or to receive any *^t'^?k °^ dividend payable in respect of any such share or interest, or shall de- ceipt of mand or endeavour to have any such share or interest transferred, or to dividends 2'eceive any dividend payable in respect thereof, by virtue of any such persona- forged or altered power of attorney, or other authority, knowing the tion. same to be forged or altered, with intent in any of the several cases *418 aforesaid to defraud any person whatsoever; or if any person shall falsely and deceitfully personate any owner of any such share, interest or dividend as aforesaid, and thereby transfer any share or interest be- longing to such owner, or thereby receive any money due to such owner as if such person were the true and lawful owner; every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon." (c) Sec. 7. By sec. 7, " if any person shall falsely and deceitfully personate any ?'^J^°°^*' owner of any share or interest of or in any stock, annuity, or other pub- owner of lie fund which now is or hereafter may be transferable at the Bank of any public England, or at the South Sea House, or any owner of any share or in- certain terest of or in the capital stock of any body corporate, company, or otherstock, society, which now is or hereafter may be established by charter or act Tourino- to" °^ Parliament, or any owner of any dividend payable in respect of any transfer or such share or interest as aforesaid, and shall thereby endeavour to trans- the^dTvU^ ^fer any share or interest belonging to any such owner, or thereby en- dends. dcavour to receive any money due to any such owner, as if such of- fender were the true and lawful owner ; every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years nor less than two years. "(f^) Sec. 8. I^y sec. 8, " if any person shall forge the name or handwriting of any Forging the person as or purporting to be a witness attesting the execution of any (a) Tne 2 & 3 Wm. 4, c. 123, ante, p. 411, took away the punishment of death from these offences, and the present punishment under the 1 Vict. c. 84, ss. 2 and 3, is that mentioned in note (,' out warrant for a greater or less amount than the person or persons on whose warmnts behalf such dividend warrant shall be made out is or are entitled to, f">" i (rreat- with intent to defraud any person whatsoever, every such offender shall ^i^nf tbau be guilty of felony, and, being convicted * thereof, shall bo liable at the wlmt is discretion of the court, to be transported beyond the seas for the term '"''""y '^"''• of seven years, or to be imprisoned for any term not exceeding two ^^ years nor less than one year."(y) Besides the statute above set forth there may be briefly noticed the 9 fl Geo. 1, c. Geo. 1, c. 12, s. •i,(/') which made it a capital felony to forge orders, .!'.,;g * receipts, &c., relating to the payment of annuities payable at the Ex- ami oth'er chequer, as mentioned in the act; and the 35 Geo. 3, c. 6G, with the 37 st"tut*-*»- Geo. 3, c. 46, which contain regulations for transferring the payment of certain annuities and dividends from Ireland to the Bank of p]ngland, made the forging or altering receipts for subscriptions to loan or deben- tures, under these acts, a capital offence, re-enacted the provisions of the 8 Geo. 1, 0. 22, s. 1,(0 and the 32 Geo. 3, c. 30,((') and made the forging or uttering any dividend warrant, or warrant for the payment of any annuity, &c., payable in pursuance thereof, capital offences. The 52 Geo. 3, c. 129, also, which is entitled an act for amending the 48 Geo. 3, c. 142, and the 49 Geo. 3, c. G4, in enabling the commis- sioners for the reduction of the national debt to grant life annuities, recites those acts, specifies the terms on which the life annuities shall be granted, declares before whom the necessary affidavits or affirmations and certificates .shall be taken; and enacts that, if any person shall forge, &c., any such affidavit, affirmation or certificate, or produce to any per- son acting under the authority of the acts, or utter the same, knowing the same to be forged, &c., such person shall be guilty of felony, with- out benefit of clergy. (_y') And the 10 Geo. 4, c. 50, which was passed for the further improvement of the land revenue of the crown, makes it a felony (by sec. 124) to forge any power of attorney for the sale or transfer of any stock, or any draft, instrument or writing, for the receiving (/) See last note. (ff) See note [d), supra. (/») The present punishment is th.at mentioned in note (/t), ante, p. 415, by virtue of the 1 Wm. 4, c. GG, s. 1 aiul 2G, ante, p. 408, 410, and 1 Vict. c. 90, s. 5, ante, p. 41.3. (i) Repealed by the 1 AVm. 4, c. GG, s. 31. (y) The 9 Geo. 4, c. 16, repeals "all snch powers and authorities as are by the 48 Geo. 3, c. 142, 49 Geo. 3, c. 64, and the 52 Geo. 3, c. 129, or any or either of them given to the commissioners for the reduction of the national debt, for or in relation to the granlinj^ of any life annuities, or the accepting the transfers of any stock for any life an- nuities." 419 OF FORGERIES RELATING TO THE [bOOK IV. any money in the Bank of England or Ireland, &c., or any draft, in- strument, or writing in the form of a draft of the Commissioners of the Woods and Forests. In the acts by which the different loans have been raised, common clauses have usually been inserted in substance nearly the same, by which it is made a capital offence to forge certificates, debentures, re- ceipts, &c., mentioned in the acts.(A-) Some enactments respecting the forgery of dividend warrants have occurred in the statutes already mentioned. But there is a general pro- vision as to the forgery of these instruments contained in the 1 Wm. 4, c. GO, which will be stated at large in the next chapter, as it relates not only to dividend warrants, but to the forgery of bank notes and other securities of the Bank of England. Forgery of The forgery or counterfeiting any excJiequer hill is made a felony by bms"^ '""'^ the several acts passed, usually every year, authorizing *the issue of *420 such securities. Latterly it has been enacted, that the clauses of the 48 Geo. 3, c. 1, entitled, << An act for regulating the issuing and paying off of Exchequer bills," shall be extended to the acts subsequently passed, (A 41 Geo. 3, and one of those clauses, (s. 9) enacts, <' that if any person or persons Persons * shall forge or counterfeit any exchequer bill or any indorsement or writ- forging ex- ing thereupon or therein, or tender in payment any such forged or coun- chequer terfeited bill, or any exchequer bill with such counterfeit indorsement or man'ding to Writing thereon, or shall demand to have such counterfeit bill, or any have them exchequer bill with such counterfeit indorsement or writing thereupon, knowing ' Or therein, exchanged for ready money or for another exchequer bill, by them (fee, any person or persons, body or bodies politic or corporate, who shall be fe"ony° obliged or required to exchange the same, or by any other person or without persons whatsoever, knowing the bill so tendered in payment or de- c ergy. manded to be exchanged, or the indorsement or writing thereupon or therein to be forged or counterfeited, and with intent to defraud his majesty, his heirs and successors, or the persons to be appointed to pay off the same, or any of them, or to pay any interest thereupon, or the person or persons, body or bodies politic or corporate, who shall contract to circulate or exchange the same or any of them, or any other person or persons, body or bodies politic or corporate; then every such person or persona so offending, being thereof lawfully convicted, shall be ad- judged a felon, and shall suffer as in cases of felony without benefit of clergy." 5 Vict. c. 8. The 5 Vict. c. 8, entitled " An Act for Funding Exchequer Bills," by sec. 26 enacts, that " if any person or persons shall forge or coun- terfeit, or cause or procure to be forged or counterfeited, or shall will- ingly act or assist in the forging or counterfeiting any receipt or receipts fur the whole or any part or parts of the said subscription towards the said sum of five millions, either with or without the name or names of {k) As in the 37 Geo. 3, c. 46, s. 3. 41 Geo. 3, c. 3, s. 4. 42 Geo. 3, c. 8, s. 26. 42 Geo. 3, c. 58, s. 20. 44 Geo. 3, c. 47, s. 25. 44 Geo. 3, c. 48, s. 20. 45 Geo. 3, c. 12, s. 25. 46 Geo. 3, c. 33, s. 25. 58 Geo. 3, c. 23, s. 38. 5 Geo. 4, c. 53, s. 22. {I) The last act on this subject, the 5 Vict. c. 8, recites the 48 Geo. 3, c. 1, and sec. 3 en- acts that every the clauses, &c., in that act, shall be extended to the Exchequer Bills, to be made in pursuance of the act as fully as if the clauses were repeated in the act. The 48 Geo. 3, c. 1, is repealed by the 1 Wm. 4, c. G6, s. 31, as far "as relates to any forgery or other capital felony therein mentioned." " Nevertheless," says Mr. Lonsdale, Or. St. 100, " the annual appropriation acts still continue to have inserted in them the before mentioned clause. The forging of Exchequer Bills under these acts would therefore appear to be capi- tal." CflAP. XXXIV.] PUBLIC FUNDS, STOCKS, ETC. 420 any person or persons being inserted therein as the subscriber or sub- scribers thereto, or payer or payers thereof, or of any part or parts thereof, or shall alter any number, figure, or word therein, or utter or publi.sh as true any such false, forged, counterfi-ited, or altered re- ceipt or receipts, with intent to defraud the governor and company of the Bank of England, or any body politic or corporate, or any person or persons whatsoever, every such person or persons so forging or coun- terfeiting, or causing or procuring to be forged or counterfeited, or will- ingly acting or assisting in the forging or counterfeiting, or altering, uttering, or publishing as aforesaid, being thereof convicted in due form of law, shall be adjudged guilty of felony, and liable to be transported beyond the seas for life or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, nor less than two years, under the provisions of the 1 Vict. c. 84:. "(w) The 5 Geo. 4, c. 53, entitled <' An Act to permit ihc Mutual *Trans- *421 fer of Capital in certain Public Stocks or Funds transferable at the ^.'''^^"•^^' *'• Banks of England and Ireland respectively," by sec. 22, enacts that ^^^g p^un. " if any person or persons shall forge or counterfeit, or cause or pro- tt-rfeiting cure to be forged or counterfeited, or shall willingly act or assist in the Ji^j[.^*^"jj*'5 forging or counterfeiting any certificate or duplicate certificate rcfpiired (Joo. 4, c. by this act, or shall alter any number, figure, or word therein, or shall alter ^ or publish as true any such false, forged, counterfeited, or altered certi- ficate, with intent to defraud the governor and company of the Bank of England, or the governor and company of the Bank of Ireland, or any body politic or corporate, or any person or persons whomsoever, every such person or persons so forging or counterfeiting, or causing or pro- curing to be forged or counterfeited, or willingly acting or assisting in the forging or counterfeiting, or altering, uttering, or published as aforesaid, being thereof convicted in due form of law shall be adjudged guilty of felony, and shall suffer death as a felon without benefit of clergy."(/i) In conclusion of this chapter a case may be mentioned in which the forgery of a frana/er of stock and the construction of the 33 Geo. 3, c. 30, s. 2 (now repealed), came under consideration. The indictment charged that one W. Harrison was possessed of and GmWs entitled to 50/. interest or share iu the consolidated three per cent, annul- '""f*^" ,, . . prisoner ties; that whilst W. H. was so possessed of and entitled to the said 50/., being found &c., the prisoner falsely made, forged, and counterfeited a transfer of the ?"'!'>' "" "^ said 50/. interest or share, with the name of the said W. II. thereto sub- chnrging seribed, purporting to have been signed by the said W. II. and to be a ''"".^''h transfer of the said 50/., &c., from the said W. II. unto one W. W. the truf/^ffr of tenor of which was, &c., (setting it out); with intent to defraud the ftoek, ob- governor and company of the ]iank of England contrary to the form li^'j^^j^^^^ of the statute, &c. In other counts the intent was laid to be to defraud .nock li:id W. II. and W. W. and in others the prisoner was charged with publish- "'^'■'''■.^7" ing the transfer, knowing it to be forged, with the same intent. There the person were also further counts, charfrinrj the prisoner cenerally with fominc'" "''"se *~ h'Iuio it a certain transfer, to wit, a transfer of an interest and share, viz , 50/. stood, and (m) Ante, p. 412. (n) This provision jath is aliolished b „.'thc 1 Wm. 4, c. 6,., , ^,..,,, ,,. -.„„, -,,„, .^..>» ^..^ ^ , .^i. ^. „„, .-. .., ,.. -.., is that mentioned in note (A), ante, p. 415. As to the puni.shmcnt of principals in the second degree and accessories, sec the 1 Wm. 4, c. 66, s. 25, ante^ p. 410. (n) Thi.s provision is not expressly repealed liy the 1 Wm. 4, c. CG, but tlic punishment of death is abolished by the first section of that statute, and the present punishment by virtue of the 1 Wm. 4, c. 66, s. 1 and 26, ante, p. 408, 410, and the 1 Vict. c. 00, ?. ft, ante. p. 41.'}, 421 FORGERIES RELATING TO PUBLIC FUNDS, ETC. [bOOK IV. that tho interest and share of and certain annuities transferable at the Bank Wits not 0^ England, commonly called consolidated three per cent, annuities, witnossod 'without stating to whom the stock belonged, or reciting the statutes "0X0' '"ul'cs relating thereto, in fraud of the said several persons. It appeared in timl Jiroc- evidence that the prisoner and one II. Ilarland, were executors of a '"'"^ "'^^J^.'' person named J. Howard, who had by his will given the 50^. in the overruloa. three per cent, consols to his grandson, W. Harrison, and that on the 11th January, 1796, they transferred the same into the name of W. Harrison : but the trans^fcr never was accepted hy W. Harrison. Afterwards on the 14th January, the prisoner brought his own son with him to the bank, and represented him to be W. Harrison; and, by the intervention of a broker, it was agreed that the stock should be sold to *422 W. West. The prisoner's son *iu his presence signed the transfer, which was properly filled up; but from the circumstance of his writing the name with a double ss (Harrisson), he was required to bring an affidavit that he was the person described in the books of the Bank, by the name of Harrison with a single s; and, in consequence, the broker did not pay over the money he had received from West for the stock, and the transfer was not witnessed. It appeared that according to the printed form of transfers used at the Bank they ought to be witnessed; and also, that there were positive orders at the Bank not to transfer any stock till it had been accepted. But the last rule was frequently departed from in transfers made with the stockjobbers; and it was allowed by the rules that dividends should be received on stock before it was ac- cepted. On behalf of the prisoner the 33 Geo. 3, c. 28, was cited, which required that books should be kept at the Bank for the entering of all transfers, which should be conceived in proper words for that purpose, and signed by the parties making such transfers, and that the several persons to whom such transfers should be made should underwrite their acceptance thereof; and that no other method of transferring or assign- ing the said annuities should be good or available in law. (0) And it was objected that the evidence did not support the indictment; first, for want of Harrison's acceptance of the transfer made to him by the executors of Howard; which it was contended was necessary to make the transfer complete, and give Harrison possession of the 50Z. stock; secondly, because no transfer at all could be made until the stock was accepted; and, thirdly, that the transfer in the name of W. Harrison was not wit- nessed, and therefore not available in law, and in fact no transfer; the witnessing being part of the words in which transfers were conceived.(j9) The jury having found the prisoner guilty, the case was argued before the judges at some length, the counsel for the prosecution relying in sup- port of the indictment upon the second section of the 33 Geo. 3, c. 30 (now repealed); and ultimately the objections were all overruled, and the offence was holdcn to be complete. It is stated that Buller, J., in delivering the opinion of the judges, observed as to the two first objec- tions, that two answers had been given, first, that the stock vested in W. II. by the mere act of transferring it into his name, and that if he had died before he had accepted it, yet it would have gone to his execu- tors as part of his personal estate; and, secondly, that the natuie of the (0) A clause similar in substance was enacted by the 35 Geo. 3, c. 14, s. 16, the 36 Geo. 3, c. 12, s. 16, and other statutes. ip) The want of witnessing was compared to the omissions in the bill of exchange in Mof- fatt's case, ante, p. 356. CHAP. XXXV.] OF FORGING THE SECURITIES, ETC. 422 offence would not liavc been altered, if W. IT. had not bad any stock standing in bis name; for tbe transfer forged by tbc prisoner was com- plete on tbc face of it, and imported tbat tberc was sucb a description of stock capable of being transferred ; tbat ncitbcr tbe forgery nor tbe fraud would have been less complete if Harrison bad really bad no stock. And as to tbc tbird objection, be said tbat tbe judges were all of opinion tbat ibc entry and signatures, as stated in tbc indictment, were a complete transfer witbout tbe attestation of witnesses, wbicb was no part of tbe instrument, but only required by tbc Bank for their own protection ex abundanti cautcl(i.(^q) *A case has also occurred in wbicb tJie cndcavourtng to receive, d;c. •423 tbc money of a proprietor of stock, within the statute 31 Goo. 2, c. 22, Parr's cane. 8. 37 (now repealed), came under consideration. The prisoner, Francis ^'"'"'^'"'."" , ' . . . . . nic and in- Parr, applied to the clerk whose business it was to issue the dividend dor/m;; a warrants upon tbe 3 per cent, consols stock, in the name of Isaac Hart, •'"vi'i'iid for a warrant for half-a-ycar's dividend; using the words "Isaac Ilart, ti,'e 1^,,,,^ ;„ 3900?." He also signed the book "Isaac Hart;" and, being asked of rietor, time be had made any application at the pay-office, cr bad even gone '""^ thore- towards it, or taken any other step towards obtaining the actual pay- ouriu;,' to ment of the money. It was objected by his counsel tbat some sucb roecivc thp proceeding was necessary to tbe completion of the offence ; but after ti,„utrb no bis conviction, the point being submitted to the consideration of thenttcmpt twelve judges, they all held the conviction right; and Gould, J., in de- ^^^"^^.J.""^" livcring their opinion, said, tbat the facts showed tbat the prisoner, by the monoj personating tbe proprietor, and by obtaining and indorsing the warrant "y^° P*^" as such, thereby made an endeavour, as far as it went, towards receiv- ing the dividend. (?•) It was held that a power of attorney to trnnsfiT government stock signed, scaled, and delivered, was a deed within the 2 Geo. 2, c. 25, s. 1, (now repealed). (s) *CH AFTER THE TIIIIlTY-riFTIL *424 OF FORGING THE SECURITIES OF THE BANK OF ENGLAND. Soon after the establishment of tbe IJatik of England, it was thought necessary to make especial provision against the offence of forging its securities. The former statutes relating to this subject were tbe 8 & 9 (q) Gadc's case, 0. B. Feb. IVOG. Ea.'^l. T. ITOG, and 0. B. Juno, 179G. 2 East, V. C. c. 19, s. 0, p. 874. Leach, 732. (r) Parr's case, 0. B. 1787. Ilil. T. 1787. 1 Leach, 434. 2 East, P. C. c. 20, s. 2, p. 1005. In this ca.se, J. Harf, tlie proprietor of the stock, was examined as a witness to prove the identity of the person intended to be defrawdcd. (s) ilex V. Fauntleroy,' 11. & M. C. C. R. 52. S. C. 2 Bing. R. 41.-?. See this case moro fully st.ated, jPos<. As the forging such a power of attorney is made an offence expressly by the 1 Wra. 4, c. 6G, s. 6, anie,\i. 417, it would now be the proper course to proceed upon that section. • Eng. Com. Law Rep?, ix. 454. Vol. 11.— 28 ^ 424 OF FORGING THE SECURITIES OF THE [BOOK IV. Wm. 3, c. 20, s. 36, the 15 Geo. 2, c. 13, s. 11, the 45 Geo. 3, c. 89, the 13 Geo. 3, c. 79, and the 52 Geo. 3, c. 138, and they were repealed by the 1 Wm. 4, c. 06, s. 31.t 1 Wm. 4, c. But that statute, by sec. 3, enacts, " that if any person shall forge or 6(5, s. ;5.^ a^ler, or shall offer, utter, dispose of, or put off, knowing the same to be exchequer forgcd or altered, any exchequer bill or exchequer debenture, or any bill, e.\cho- jmjQjgg^gQj. Qj. assignment of any exchequer bill or exchequer de- ture, East benturc, or any bond under the common seal of the united company of India bond, merchants of England trading to the East Indies, commonly called an wu" '^bil'l ^of ^^'^*' I" Ji''' bond, or any indorsement on or assignment of any East India exchange, bond, or any note or bill of exchange of the governor and company of promissory ^^ -[^j^nk of England, commonly called a bank note, a bank bill of note, or ° . "^ . . warrant or exchange, or a bank post bill, or any indorsement on or assignment or order for ^^^ bank note, bank bill of exchange, or bank post bill, or any will, money, testament, codicil, or testamentary writing, or any bill of exchange on capital. ajjy promissory note for the payment of money, or any indorsement on or assignment of any bill of exchange or promissory note for the pay- ment of money, or any acceptance of any bill of exchange, or any under- taking, warrant, or order for the payment of money, with interest, in any of the cases aforesaid, to defraud any person whatsoever, every such offender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon. "(a) *425 By sec. 12, " if any person shall, without lawful excuse, the proof Sec. 12. whereof shall lie upon the party accused, purchase or receive from any u chasfn^ ot^^^^ person, or have in his custody or possession, (i) any forged *bank or receiv-" note, bank bill of exchange, or bank post bill, or blank bank note, blank ing or hav- j^ j^ bill of exchange, or blank bank post bill, knowing the same ing in pos- " ' . session for- respectively to be forged, every such offender shall be guilty of felony, ged bank j^^^j being; convicted thereof, shall be transported beyond the seas for notes ' o ' L J the term of fourteen years." (c) Sec. 13. By sec. 13, " if any person shall, without the authority of the governor Making or ^j^^j company of the Bank of England, to be proved by the party accused, without make or use, or shall, without lawful excuse, to be proved by the party authority accuscd, knowingly have in his custody or possession, (i) any frame, fo'Zmakhi'' mould, or instrument for the making of paper with the words " Bank of paper with England" visible in the substance of the paper, or for the making of paper (a) The 2 & 3 Wm. 4, c. 23, ante, p. 411, and the 1 Vict. c. 84, s. 1, have done away with the punishment of death for all the offences mentioned in this section, and the present pun- ishment under the 1 Vict. c. 84, s. 1, 2, and 3, ante, p. 412, is transportation for life, or for any term not less than seven years, or imprisonment for any term not exceeding four, nor less than two years, with or without hard labour, in the common gaol or house of correc- tion, and the offender may be directed to be kept in solitary confinement for anj^ portion or portions of such imprisonment, not exceeding one month at any one time, and not exceed- ing three months in the space of one year, as to the court in its discretion shall seem meet. See ante, p. 409, et seg. for the general provisions of the 1 Wm. 4, c. C6, and ante, p. 410, for the punishment of principals in the second degree and accessories. (b) See sec. 28, ante, p. 410, and Rex v. Rowley, Russ. & Ry. 110,;;os<, p. 429. (c) As to princiiials in the second degree and accessories, see sec. 25, ante, p. 410. •j- {See Statute of U. States for the punishment of forging, g paper with curved or waving bur 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 if any person, without such authority, to be proved as aforesaid, shall, by any art or contrivance, cause the words "Bank of England" to appear visible in the substance of any paper, or cause the numerical sum or amount of any bank note, bank bill of exchange, or bank post bill, blank bank note, blank bank bill of exchange, or blank post bill, in a word or words in lloman letters, to appear visible in the substance of the paper whereon the same shall be written or printed; every such offender shall be guilty of felony, and, being convicted thereof, shall be transported beyond the seas for the term of fourteen years." (c) By sec. 14, " nothing herein contained shall prevent any person from Sec i-f. issuing any bill of exchange or promissory note having the amount Proviso, as thereof expressed in guineas, or in a numerical figure or figures denoting used for the amount thereof in pounds sterling appearing visible in the substance 1^'"^ "f^x- of the paper upon which the same shall be written or printed, nor shall ^^.'^'^ ' prevent any person 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 piper, not being bar lines or laying wire lines, provided the same are not so contrived as to form the ground- work or texture of the paper, or to resemble the waving or curved laying wire lines or bar lines or the waterm irks of the paper used by the governor and company of the Bank of England." By sec. 15, << if any person shall engrave or anywise make upon any *426 plate whatever, or upou any wood, stone, or other material, any promis- Soc 15. sory note or bill of exchange, or blank promissjry note or blank bill of ^''-^''^mg exchange, or pirt of a promissory note or bill of •exchange purporting pi.^^, &o., to be a bank note, bank bill of exchange, or bink post bill, or blink"" imy bank note, blank bink bill of exchange, or blank bulk pist bill, or p;ii't ^tj;./or ' of a b ink note, bxnk bill of cxchmg;, or buik post bill, without the using or authority of the g)vernor and coiupmy of the Bink of England, to be J^*Jj^"flj^j^ proved by the party accused ; or if any pjrson shall use such plate, without wood, stone, or other material, or any other instrument or device, for 'l"'^'"""''y' the miking or printing any bank note, bink bill of exchange, or bank toring or post bill, or blank bank note, blank bank bill of cxch inge, or blank '"^■"'? i 1 1 11 /. 1 1 1 1 1 11 1? 1 11 n,»|)or upon bank post bill, or part or a bank note, bmk bill ot exchange, or bank jviiiei, j^ post bill, without such authority, to be proved as aforesaid ; or if any i>':i"'< n'i'<*» person shall, without lawful excuse, the proof whereof shall lie on the j^^ ' j^^^j party accused, knowingly have in his custody or posscssion('/j any such plate, wood, stone, or other material, or any such instrument or device; (6) As to principals in the second degree and accessories, see sec. 25, antf, p. 410. (c) Sec sec. 28, ante, p. 410, and Rex v. Rowley, Russ. & Ry. IIO, post, p. 423. ((/) Sec sec. 28, ante, p. 410. 426 OP FORGING THE SECURITIES OF THE [BOOK IV. or if any person shall, without such authority, to be proved as aforesaid, knowingly offer, utter, dispose of, or put off any paper upon which any blank bank note, blank bank bill of exchange, or blank bank post bill, or part of a bank note, bank bill of exchange, or bank post bill, shall be made or printed ; or if any person shall, without lawful excuse, to be proved as aforesaid, knowingly have in his custody or possession ("6?^ any such paper, every such offender shall be guilty of felony, and being convicted thereof, shall be transported beyond the seas for the term of fourteen years." (r) Sec. 16. By see. 16, " if any person shall engrave, or in any wise make upon oiTanV"" any plate whatever, or upon any wood, stone, or other material, any piato, &c., word, number, figure, character, or ornament, the impression taken any word, fj-Qj^^ which shall resemble, or apparently be intended to resemble, any number or r-i . ,.. ornament part of a bank note, bank bill of exchange, or bank post bill, without resembling ^^g authority of the governor or company of the Bank of England, to be any part ol t i i i .„ "^ , „ i i . a bank proved by the party accused ; or it any person shall use any such plate, note, Ac., wood, stone, or other material, or any other instrument or device, for or havino-" *^^ making upon any paper or other material the impression of any .tny paper word, number, figure, character, or ornament which shall resemble, or there shall ^PP^J'^'^tly be intended to resemble, any part of a bank note, bank bill be an im- of exchange, or bank post bill, without such authority, to be proved as pression of aforesaid: or if any person shall, without lawful excuse, the proof Jiiiv word / ** 1 ' 'X number, ' whereof shall lie on the party accused, knowingly have in his custody *'■• or possession(c7) any such plate, wood, stone, or other material, or any such instrument or device ; or if any person shall, without such author- ity, to be proved as aforesaid, knowingly offer, utter, dispose of, put off any paper or other material upon which there shall be an impression of any such matter as aforesaid j or if any person shall, without lawful ex- cuse, to be proved as aforesaid, knowingly have in his custody or pos- session(c?) any paper or other material upon which there shall be an impression of any such matter as aforesaid ; every such offender shall be guilty of felony, and, being convicted thereof, shall be transported beyond the seas for the term of fourteen years." (f) *427 The 1 Geo. 4, c. 92, after reciting the increase of the forgery of the 1 Geo. 4, c. notes of the governor and company of the Bank of England, and the Engraving, diflBculty of detection, and a new plan for printing such notes, *enacts Ac, en any (\)j gee. 1^, " that if any person or persons (other than the officers, producing 'Workmen, servants, and agents for the time being of the said governor an iinpres- and Company, to be authorized and appointed for that purpose by the or any part ^^^^ govcmor and company, and for the use of the said governor and of a bank company only), shall engrave, cut, etch, scrape, or by any other art, Ba^nk^of^'^^ means, or device, make, or shall cause or procure to be engraved, cut, England etched, scraped, or by any other art, means, or device, made, or shall without au- knowingly aid or assist in (he engraving, cutting, etching, scraping, or by any other art, means, or device, making in or upon any plate of copper, brass, steel, iron, pewter, or of any other metal or mixtures of metal, or upon wood or other materials, or any plate whatsoever, for the purpose of producing a print or impression of all or any part or p; rts of a bank note, or of a blank bank note, of the said governor and company, of the description aforesaid, without an authority in writing such plate;' fj'O'^ the said governor and company, or shall use any such plate so en- S Ibid. (e) See sec. 25, arite, p. 410, as to the principals in the second degree and accessories. CHAP. XXXV.] BANK OF ENGLAND. 427 graved, cut, etched, scraped, or by any other art, means, or device, made, or shall use any other instrument or contrivance for the making or printing any such bank note or blank bank note, or part of a bank note of the description aforesaid; or if any person or persons shall, or liaving from and after the passin"; of this act, without such authority as afore- f'"^'' f'''**!^" 1 1 /> 1 - 1 • 1 in custodv said, knowingly and without lawful excuse have in his, her, or their or uttering custody, any such plate or instrument, or, without such authority as »"y'"'P''*-''*- aforesaid, shall knowingly or wilfully utter, publish, dispose of, or putj\, away any such blank bank note, or part of such bank note, of the des- cription aforesaid, every person so oflPending in any of the cases afore- said, and being thereof convicted according to law, shall be adjudged a felon, and shall be transported for the term of fourteen years." The second section, after reciting that divers frauds had been prac- Soc. 2. tised by making and publishing papers with certain words and charac- l'""'3h- ters so nearly resembling the notes of the governor and company of the persons on- Bank of England, as to appear, to ignorant and unwary persons, to be sraving, the notes of the said governor and company : and that it was necessary j^ij^'g ^„y • for the security of the public that such practices as applied to the notes rcsem- of the said governor and company of the aforesaid description should grouml- be prevented, enacts, " that if any person or persons from and after the work in- passing of the act, shall engrave, cut, etch, scrape, or by any other art, ^^"'^j^^iq' means, or device make, or shall cause or procure to be engraved, cut, the ground, etched, scraped, or by any other art, means or contrivance made, or "^"'"'j^ °*" -"^ shall knowingly aider assist in the engraving, cutting, etching, scraping, England or by any other art, means, or contrivance making, in or upon any note, with- platc of copper, brass, steel, iron, pewter, or of any other metal or uiix-||i"(,rity oi' ture of metals, or upon wood or any other materials, or upon any plate the bank : whatsoever, any line work, as for the ground work of a promissory note or bill of exchange, the impression taken from which line work shall be intended to resemble the ground work of a bank note of the said governor and company of the description aforesaid, or any device, the impression taken from which shall contain the words <' Bank of England," in white letters, upon a black, sable, or dark ground, either with or without white or other lines therein, or shall contain in any part thereof the numerical sum or amount of any promissory note or bill of exchange in black and red register work, or *shall show the re- *423i versed contents of a promissory note or bill of exchange, or shall con- tain any word or words, figure or figures, character or characters, pat- tern or patterns, which shall be intended to resemble the whole or any part of the matter or ornaments of any bank note of the description aforesaid, or shall contain any word, number, figure, or character in white, on a black, sable, or dark ground, either with or without white or other lines therein, which shall be intended to resemble the numerical sum or amount in the margin, or any other part of the bank note of the said governor and company, without an authority in writing for that purpose from the said governor and compan}-, to be produced and proved by the party accused ; or if any person or persons shall, from and after the passing of this act, (without such authority as aforesaid,) use any such plate, wood, or other materials, so engraved, cut, etched, or usina; scraped, or by any other art, means, or contrivance made, or shall use •'""='' P'*''' any other instrument or contrivance for the making or printing upon any paper or other material, any word or words, figure or figures, cha- racter or characters, pattern or patterns, which shall be intended to re- 428 OF FORGING TUB SECURITIES OF THE [BOOK IV. semblc the whole or any part of the matter or ornaments of any such note of the said governor and company, of the description aforesaid, or any word, figure or character, in white, on a black, sable, or dark ground, either with or without white or other lines therein, which shall be apparently intended to resemble the numerical sum or amount in the margin, or any other part of the bank note of the said governor and or having company; or if any person or persons shall, from and after the passing Kiifih plnte Qf jj^jg ^gf without such authority as aforesaid, knowingly have in his, III posses- ' . •' IT- liion, or ut- her, or their custody or possession, any such plate or instrument, or toring any g^j^H knowingly and wilfully utter, publish or dispose of, or put away froi'n'^it, ^^J paper Or other material containing any such word or words, figure transporta- or figures, character or characters, pattern or patterns as aforesaid, or fourteen shall knowingly or willingly have in his, her, or their custody or pos- years, session any paper or other material containing any such word or words, figure or figures, character or characters, pattern or patterns as afore- said, (without lawful excuse, the proof whereof shall lie upon the per- son accused,) every person so offending in any of the cases aforesaid, and being convicted thereof according to law, shall be adjudged a felon, and shall be transported for the term of fourteen years." Sec. 3 pro- The third section, after reciting that it was expedient that the name Ji^^i ^^^^ 01" names of the person or persons intrusted and authorized by the said may cause governor and company to sign bank notes on behalf of the said gover- an impres- jjQp jj^jf} company, should be impressed by machinery upon bank notes inado upon of the description aforesaid, in such form as might from time to lime the note by be adopted by the said governor and company, instead of being sub- r7i"Hou"of^ scribed in the handwriting of such person or persons respectively, and signature that doubts might arise respecting the validity of such notes, enacts, by hand- ^^ ^^^^ ^jj bank notes of the said eovernor and company of the descrip- tion aforesaid, whereon the name or names of any person or persons intrusted or authorized to sign such notes on behalf of the said gover- nor and company shall or may be impressed by machinery provided for that purpose by the said governor and company, and with the authority of the said governor and company, shall be and be taken to be good and *429 valid to all intents and ^purposes, as if such notes had been subscribed in the pr'-per handwriting of the person or persons intrusted or autho- rized by the said governor and company to sign the same respectively, and shall be deemed and taken to be bank notes within the meaning of all laws and statutes whatsoever, and shall and may be described as bank notes in all indictments and other criminal and civil proceedings whatsoever: any law, statute, or usage to the contrary notwithstand- ing-" Cases Tipnn A casc has been already noticed in which it was holden upon one of * d° r^r« ^^^^ statutes relating to forgeries upon the Bank of England, namely, the 8 & 9 Wm. 3, c. 20, s. 36, (now repealed,) that the expunging by means of lemon-juice an indorsement on a bank note, was a rasing of the indorsement. (e) And in the inquiry in a former chapter as to the resemblance which the forged instrument must bear to one that is genuine, a case upon the 15 Geo. 2, c. 13, s. 11, (now repealed) was mentioned, where it was holden that the resemblance to a bank note must appear on the face of the instrument; and that a signature " for Self and Co." of "my bank in England," did not support an allega- tion that the paper purported to be a bank note : and further that the (c) Rex V. Bigg, 3 P. Wms. 419, ante, p. 323. CHAP. XXXV.] BANK OF ENGLAND. 429 representation of the prisoner could not alter the purport of the instru- ment.(/) The 45 Geo. 3, c. 89, s. G, made it felony if any person should Possession knowingly have << in his, her, or their possession or custody," &c., "' "■ *"^se away lorg- C. J., observed, that the indictment contained every word which the cd bunk statute uses for constituting the offence : and that the statute did not""^*''* '' '^ 1 1 ., . >> -L ,. ^ 1 rr •.! • not nCCCB- contain the words, " to any person or persons; but to put on with lu- j^n-y toavcr tent to defraud the governor and company of the Bank of England; and t" whom the judges held the indictment to be sufficient. (/)| wel-o'put Another point arose in the same case, upon the evidence, from which awny. it appeared that the notes, which the prisoners were charged with bav-And tliia ins: disposed of and put away, were furnished by the prisoners in consc-"*^'^"'^''™^ p ,'.1 1 1T/-1 be complet- (lucncc of an application made to them by agents employed for that ed, though purpose by the Bank, and that they were delivered to such agents as '|^"-Pt'|'"'' forged notes, for the purpose of being disposed of by them. The facts n„t.es wero were, that in consequence of a great number of forged notes having been furni.shcd circulated in the neighbourhood, two persons, named Shaw and White- .Jisoners to head, were employed by the magistrates, with the approbation of the agents em- agents for the bank, to detect those who were suspected to be the "tter-jj^^-^^^j^j^^^^j crs. The prisoners did not pay the notes to Shaw and Whitehead as procure ♦genuine; but those persons, for the purpose of detection, applied to *4o2 the prisoners, as supposed dealers in forged bank notes, to purchase them from them, and the prisoners accordingly procured them, and sold them agthopnson- forged notes, so that Shaw and Whitehead were not deceived or de- that the frauded in any of the instances, nor were any of the prisoners the first ""J5^ '^^f® , . doliveredto movers in the transaction they had with them ; nor did it appear, by any such agents direct evidence, that either of the prisoners, when he was first applied »» forged to, had any of the notes in his actual possession ; but they respectively ji,^ purpoao produced them at meetings which took place subsequent to such first of being application. Upon this evidence it was objected, on behalf of the pris- |,y "^J^e^ oners, that there was no sufficient disposing of the notes, inasmuch as the prisoners were solicited to commit the act proved against them by the bank themselves, by means of their agents. The objection was overruled by the learned judge who tried the prisoners; but he thought proper to respite their sentence, in order that the point might be con- sidered by the twelve judges, who held the conviction right. (???) son, B., Lawrence, J., Le Blanc, J., and Chambre, J., were of opinion tliat the conviction was wrong. (/.-) Ilex V. Giles, R. k M. C. C. R. 166, anfc, p. 3r»8. (/) Rex ('. llolden and otlier.s, mr. ('hambre, .1., Lancaster Sum. Ass. 1800, and argued be- fore the judges, Mich. T. 180'J. 2 Taunt. 3.'i4. 2 Leach, 1019. Russ. & Ry. 154. The count in (juestion in the imUctment charged that the jjrisoner " on, &c., with force and arms of, &c., feloniously did disjjose of, and put away a certain false, forged, and counterfeit bank note, the tenor of which was as followeth, (an exact copy set out,) with intent to defraud the go- venor and comiiany of the Bank of England, he (the prisoner) at the time of liis so disposing of and ])utting away the same forged and counterfeit liank note, then and there well know- ing such last mentioned note to be forged and counterfeited: against the form of the statute, &c." (m) Rex V. Holden and others, ante, p. 431, note (I). The ground on which this decision f jll Mass. Rep. 136. Commonwealth v. llill.| J JTlie words of the statute of H. Carolina, are, tliat if any person sliall " utter and pub- lish," &c. An indictment dmrged that the prisoner " did dispose of and put away," A'c. Judgment was arrested. 1 Harper's Rep. 59, State v. Petty.} 432 FORGING ON OTHER PUBLIC COMPANIES. [BOOK IV. Evidonco We have sccn that the offering, disposing of, receiving, or having pos- knowlodo-o ^^^^'^^ °^ forged bank notes, &c., hnowivg the same to be /urged, are wlioro till) made substantive offences by the statutable enactments, which have been P"''^-y® cited ;(«) and the knowledge of the forgery, or, as it is commonly termed witiAittor- ^^'c guilty Jawwlcdge, will of course, iu prosecutions for such offences, itif^, &c., form a most material part of the inquiry. The principal cases upon notes, &c. ^'^'^ subject are mentioned in a former chapter, treating generally of the knowing crime of forgery. ((9) bo forged.*' ^^ ^ ^^^'^ where the Bank of England had preferred a bill of indict- Bank pro- ™^°*' ^^r the capital offence of disposing of and putting away forged seditions. Bank of England notes ; and also another bill against the same pri- rac ice. goners for the transportable offence of having the same notes in their ^gg'JI" ^°^ possession, knowing them to be forged, and had elected to proceed on minor the latter indictment, it was holden, that although facts sufficient to offences, support the capital charge were made out in evidence, an acquittal for such minor offence ought not to be directed, because the whole of the minor offence was proved, and it did not merge in the capital offence. And that the bank might elect to proceed on indictments for the lesser offence, although indictments had been found for the capital charge. (^j) Signing? It was also holden in the same case, that it is not necessary that the clerk not a signing clerk at the bank should be produced, if witnesses acquainted witness!^^ with his handwriting stated that the signature to the note was not his handwriting. (2) *433 *CHAPTER THE THIRTY-SIXTH. OF FORGING THE SECURITIES OF OTHER PUBLIC COMPANIES. Forgingthe The 9 Aune, c. 21, s. 57, relates to forgeries upon the South Sea s^al, bond, Company, and enacts, " That if any person or persons shall forge or South Sea counterfeit the common seal of the said company, or shall forge, couu- Corapany; terfeit, Or alter any bond or obligation under the common seal of the ing pay- Said company; or shall offer to dispose of or pay away any such forged, ment on a counterfeited, or altered bond, (knowing the same to be such,) or shall bond &0 demand the money therein contained or pretended to be due thereon, or 9 Anne, c. any part thereof, of the said company, or any of their officers, (knowing 2 , s. 57. gygj-j bond or obligation to be forged, counterfeited, or altered,) with in- tent to defraud the said company or their successors, or any other per- son or persons whatsoever," every such offender shall be guilty of felony, without benefit of clergy. And the 6 Geo. 1, c. 4, s. 56, contains sim- ilar provisions. (o) Forging re- The G Geo. 1, c. 11, s. 50, recites that the South Sea Company might proceeded, was that the intent is the essence of the crime which exists in the mind, although from circumstances of which the prisoner is not apprised the prosecutor cannot be de- frauded. (n) Ante, 424, et seq. (0) Ante, Chap, xxxii. p. 403. (p) Case of Bank Prosecutions, Russ. & Ry. '6l8. Both the offences were felonies. (g) Id. ibid. (rt) The 9 Anne, c. 21, s. 5'7, and the C Geo. 1, c. 4, s. 56,notbeingexpressly repealed by the 1 Wm. 4, c. 66, or the offences contained in them made capital by that statute, the present punishment for such offences is regulated by the 1 Wm. 4, c. 66, ss. 1 and 26, and the 1 Vict. c. 90, s. 5, and is that stated in note (A) ante, p. 415. As to the punishment of principals in the second degree and accessories, see the 1 Wm. 4, c. 66, s. 25, ante, p. 410. CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 433 issue out receipts under the hand or hands of one or more of their ofB- ceipts or cers, from time to time, upon or for subscriptions to be taken by the J^^^'^y^^Jj^^j^" said company for increasing their capital, pursuant to the G Geo. 1, c. Sea Com - 4, and micht also issue out warrants under llie hand or hands of one orP""^-, ^ more of their oflBcers, for the dividend from time to time to be made to u^ s. 50. the proprietors of the stock of the said company ; and then enacts, " that if any person or persons shall forge, counterfeit, or alter any such re- ceipt or receipts, warrant or warrants, or an indorsement or writing, in- dorsements or writings thereupon or therein, or shall tender any such forged, counterfeited, or altered receipt or receipts, warrant or warrants, or any such receipt or receipts, warrant or warrants, with such counter- feit indorsement or writing thereon or therein, knowing the same to be so forged, counterfeited, or altered, to the said company, or any of their officers, or shall offer to alienate or dispose of the same, knowing the same to be forged, counterfeited, or altered, and with intent to defraud the said company, or any other person or persons, bodies politic or cor- porate," every such person so offending shall be adjudged a felon, with- out benefit of clergy. (/>) *The 1 Wm. 4, c. GG, s. 3, enacts, that '^if any person shall forge or *434 alter (inter alia) any bond under the common seal of the united com- Forging pany of merchants trading to the East Indies, commonly called an East^"^' ^°''*'* India bond, or any indorsement on or assignment of any East India bond, with intent, in any of the cases aforesaid, to defraud any person •whatsoever, every such offender shall be guilty of felony, and being con- victed thereof, shall suffer death as a felon. (c) Especial provisions have also been made respecting forgeries affecting Forgeries some of the insurance companies ;( card, ivory, gold or silver plate, or other material, having there- or silver, upon the impression of any such forged or counterfeited mark, stamp, plate, Ac. (jie^ Qj. plate, or any such forged or counterfeited impression as afore- said, knowing the same respectively to be forged or counterfeited; or if any person shall privately or secretly use any such mark, stamp, die, or plate, which shall have been so provided, made or used, by or under such direction as aforesaid, with intent to defraud his majesty, his heirs, &c., of any of the duties, or any part of the duties under the (a) So much of this act " as relates to offences committed in breach of any law relating to his majesty's customs, or for the preventing of smuggling," is repealed by the 6 Geo. 4, c. 10.5, s. 207. (6) As no punishment is specially appointed for these offences they seem to be punishable under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and 1 Vict. c. 90, s. 5. See note (6), ante, p. 135. [bb) Now "the commissioners ofstamps and taxes," by the 4 & 5 Wra. 4, c. 60, s. 8. CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 436 care and management of the said commissioners ; every person so offending, shall be adjudged guilty of felony, without benefit of clergy. (c) By section 8, " If any person shall transpose or remove, or cause or 52 Geo. 3 procure to be transposed or removed, from one piece of wrought plate ^^janspos- ' of gold or silver to another, or to any vessel or ware of base metal, any ing Crom impression made with any mark, stamp, or die, provided, made or used ""'^r"^?^" "' by or under the direction of the said commissioners of stamps, or by or piate to under the direction of any other person or persons legally authorized in another, or that behalf, for denoting any duty or duties, or the payment of any duty uioiiil, any or duties granted to his majesty, on gold or silver plate, or shall stamp murk, or mark, or cause or procure to be stamped or marked, any vessel or or'marking ware of base metal with any mark, stamp or die, which shall have been bai^c metal foriied or counterfeited in imitation of or to resemble any murk, stamp "'"^/"'"S"'"* or die so provided, made or used as aforesaid : or shall sell, exchange siaiup, Ac. or expose to sale, or export out of Great Britain, any wrought plate of gold or silver, or any vessel or ware of base metal, having thereupon the impression of any forged or counterfeit mark, stamp, or die, for denoting any such duty or duties, or the payment of any such duty or duties, or any forged or counterfeited impression of any mark, stamp, or die so provided, made or used as aforesaid, or any impression of any such mark, stamp, or die, which shall have been transposed or removed from any other piece of plate as aforesaid, knowing the same respect- ively to be forged or counterfeited, or transposed or removed as afore- said ; or shall wilfully and without lawful excuse (the proof whereof shall lie on the person accused) have or be possessed of any such forged or counterfeit mark, stamp, or die, for denoting any such duty or duties, or the payment thereof; every *person so offending shall be ad- *437 judged guilty of felony, without benefit of clergy. ((H By the ninth section it is enacted, " that if any person (not being 52 Goo. 3, lawfully appointed or authorized so to do) shall make, or cause, or pro- ^i^^jngof' cure to be made, or shall knowingly aid or assist in the making, or, having in without being so appointed or authorized as aforesaid, shall knowingly po-'^ession have in his, her or their custody or possession, without lawful excuse ic., for pa- (the proof whereof shall lie on the person accused,") any frame, mould, r^'"' .*<'■' °^ . ./•.i !• n -11 'iT-i- r\er > making pa- or instrument, tor the making oi paper, with the words ' liixcise Umee p^r, er.'-ons liable to the payment of the said duties. ^t) Now "the commissioners of stamps and faxes," by sec, 8 of the 4 & 5 Wm. 4, c. GO. (J) Sec. 3. (^-) Sec. 4, 439 OF FORGING AND TRANSPOSING STAMPS. [bOOK IV. forging the sion, or any part of the impression of any such plate, stamp, or die, therooT'or "poi^ ^^J p^^per whatsoever, or shall stamp or mark, or cause or procure stamping to be stamped or marked any paper whatsoever, with any such forged '^"jJ^P^P?'' or counterfeited plate, stamp, or die as aforesaid, with intent to defraud forged bis majesty, his heirs, &c., of any of the duties hereby granted on alma- piato, Hacks, newspapers, (?) and licences to keep stage-coaches, (m) or any die, or ut- P^vt thereof; or if any person shall utter, or sell, or expose to sale any toring such paper, having thereupon the impression of any such forged or counter- knowing, ftiited plate, stamp, or die, or part of any plate, stamp, or die, or any Ac, or such forged, counterfeited, or resembled impression, or part of impres- using any ^^^'^ ^^ aforesaid, knowing the same respectively to be forged, counter- piato, feited or resembled; or if any person shall privately and secretely use dfe^and'^ any plate, stamp, or die, which shall have been so provided, made or their aid- i^scd as aforesaid, with intent to defraud his majesty, his heirs, &c., then %%]^h' ^'^^^U person so offending, and every person knowingly and wilfully guilty of aiding, abetting, or assisting any person or persons in committing any felony. guch offence as aforesaid," shall be adjudged guilty of felony without benefit of clergy, (ti) *440 By sec. 7, ''If any person shall forge or counterfeit, or cause orpro- 65 Geo. 3, cure to be forged or counterfeited any mark, stamp, or die, which shall c. 185, s, 7. jjjj^g j^gpjj provided, made, or used in pursuance of this or any former sons act relating to any duties on gold or silver plate made or wrought in forging, " Oreat Britain, for the purpose of marking or stamping any such gold or mark silvcr plate, in the manner directed by *any such act, or shall forge, stamp, or counterfeit, or resemble, or cause or procure to be forged, counterfeited, vlatTm °'"°'* resembled, the impression of any such mark, stamp or die, upon any forging, such gold Or silvcr plate, with intent to defraud his majesty, his heirs, &c., the ^g Q^ •£ g^jjy pgj.gQQ sliall mark or stamp, or cause or procure to be impression % i , i ^ of such marked or stamped, any such gold or silver plate, or any vessel or ware mark, &e., Qf j^r^gg mgtal, with any such forged or counterfeited mark, stamp, or die orstamp'ingas aforesaid, or [shall transpose or remove, or cause or procure to be plate or transposed or removed, from one piece of gold or silver plate to another, with a forg- •^^' to any vessel or ware of base metal, any impression made with any ed mark, mark, stamp, or die, which shall have been provided, made or used in stamp, or purg^^jance of this or any former act, for the purpose of marking or transposing stamping of any such gold or silver plate as aforesaid; or if any person from one g^jall sell, exchange, or expose to sale, or export out of Great Britain, piece of 111 -1 1 1 /. 1 1 , • plate to any such gold or silver plate, or any vessel or ware of base metal, havmg another, thereupon] the impression of any such forged or counterfeited mark, metal, any stamp, or die, as aforesaid, or any forged, counterfeited or resembled impression impression of any mark, stamp, or die so provided, made, or used as stam^'^or' aforesaid or [any impression of any such mark, stamp, or die, which die, &c., shall have been transposed or removed from any other piece of plate as feTon^ ^^ aforesaid, knowing the same respectively to be] forged or counterfeited, or [transported or removed as aforesaid;] or if any person shall wilfully, and without lawful excuse (the proof whereof shall lie on the person accused) have or be possessed of any such forged or counterfeited mark, (I) Repealed by the G & 1 Win. 4, c. 1G, as " relates to newspapers, or the duties thereon, ro to any discount or allowance in respect of the said duties." (m) See the 2 & 3 Wm. 4, c. 120, post, p. 440. (n) This section not being repealed by the 1 Wm. 4, c. 66, nor the offences therein con- tained, which still are subsisting, made capital by that act, such offences are liable under the 1 Wm. 4, c. 6G, as. 1 and 26, and 1 Vict. c. 90, s. 5, to the punishments stated in note (A), ante, p. 415. See Rex v. Hope, R. & M. C. C. R. 396. CHAP. XXXVII.] OF FORGING A^D TRANSPOSING STAMPS. 440 stamp, or die as aforesaid, or shall privately and secretly use any mark, stamp, or die so provided, made, or used as aforesaid, with intent to de- fraud his majesty, kc," every person so ofieudiiig, and every person knowingly and wilfully aiding, abetting, or assisting any person or per- sons committing any such offence as aforesaid, (o) shall be adjudged guilty of felony without benefit of clergy. (j>) The 2 & 3 Wm. 4, c. 120, entitled "an act torepeallhe duties under 2 & 3 Wm. 4 c 120' 8 the management of the commissioners of stamps on stage-carriages, and 32. ' For'g- ou horses let for hire in Great Britain, and to grant other duties in lieu ing staga thereof," repeals so much of the 55 Geo. 3, c. 185, as relates to the p^^[es*^a duties on coaches, and on licenses for keeping stage-coaches, and as re- uiisdemou- lates to the offences in the said act mentioned respecting such duties and "'^'"' licenses ; and by sec. 32, enacts, " that if any person shall forge or counterfeit, or shall cause or procure to be forged or counterfeited, or resembled, any numbered plate directed to be provided, or which shall have been provided, made, or used, in pursuance of this act, or of any former act relating to the duties payable in respect of stage carriages, or shall wilfully fix or place, or shall cause or permit, or suffer to be fixed or placed, upon any stage-carriage or other carriage, any such forged or counterfeited plate, or if any person shall sell or exchange, or expose to *sale or utter, any such forged or counterfeited plate, or if any idl person shall knowingly, and without lawful excuse, the proof whereof .■^hall lie on the person accused, have or be possessed of any such forged or counterfeited plate, knowing such plate to be forged or counterfeited, every person so offending, and every person knowingly and wilfully aiding, abetting, or assisting any person in comuiitting any sueh offence as aforesaid, shall be adjudged guilty of a misdemeanor, and being thereof convicted, shall be liable to be punished by fine or imprisonment, or by both, such imprisonment to be in the common gaol or house of correction, and either with or without hard labour, as the court shall think fit; and in Scotland, whenever any person shall so offend, he shall be liable to be punished in like manner." The 3 & 4 Wm. 4, c. 97, entitled " an act to prevent the selling and ^ * 4 Wm. uttering of forged stamps," &c., enacts, by sec. 11, that whenever any jj ' lj'. vellum, parchment, or paper shall be found in the possession of any eensodven- person licensed to vend or deal in stamps, or who shall have been so g^j[,^ J^g licensed at any time within six calendar months then next preceding, having such vellum, parchment, or paper having thereon any false, forged or ^l*"" '"-'". ^" counterfeit stamp, mark, or impression resembling or representing, or their pos- intended or liable to pass or be mistaken for any stamp, mark, or im- session pression of any die, plate, or other instrument which at any time what- ^^]^^^ pun. ever hath been or shall or may be provided, made, or used, by or under ishments. the direction of the commissioners of stamps, (^)) for the purpose of ex- pressing or denoting any stamp duty whatever, then and in every such case the person in whose possession sueh vellum, parchment, or paper shall be so found, shall be deemed and taken to have so had the same in his possession, with intent to vend, use, or utter the same with such (o) The 4 & 5 Vict. c. 50, s. I, recites so mucli of this section as is included within thi brackets, and enacts as stated in note (r/), ante, p. 438. Witli rep:ard to the other oflenccs contained in this section, as they are neitlicr expressly repealed nor nwidc capital bj' the I Win. 4, c. 66, they are liable to the punisiimcnts stated in note (fi), ante, p. 415. (p) See 5 Geo. 4, c. 52, (local and personal,) s. 22, as to plate wrought or made within the town of Birminirham, and within thirty miles thereof. [p) Now '• the commissioners of stamps and taxes," by the 4 & 5 Wm. 4, c. 60, s. 8. Vol. II.— 29 441 OF FORGING AND TRANSPOSING STAMPS. [bOOK IV. false, forged, or counterfeited stamp, mark, or impression thereon, unless the contrary shall be satisfactorily proved ; and such person shall also be deemed and taken to have such vellum, parchment, or paper so in his possession, knowing the stamp, mark, or impression thereon to be false, forged and counterfeit, and such person shall be liable to all penal- ties and punishments by law imposed or inflicted upon persons vending, using, uttering, or having in his possession false, forged, or counterfeit stamps, knowing the same to be false, forged, or counterfeit, unless such person shall in every such case satisfactorily prove that such stamp or stamps was or were procured by or for such person from some distribu- tor of stamps appointed by the said commissioners or from some person licensed to deal in stamps under the authority of this act." Sec. 12. By sec. 12, «If any person shall knowingly and without lawful ex- Porsons ^^g^ ^jj^^ proof whercof shall lie on the person accused) have in his pos- baving session any false, forged, or counterfeit die, plate, or other instrument, forged dies q^ part of any such die, plate, or instrument resembling, or intended I'll their to resemble, either wholly or in part, any die, plate, or other instru- possession. ment, which at any time whatever hath been, or shall or may be pro- vided, made, or used, by or under the direction of the commissioners of stamps, (5^) for the purpose of expressing or denoting any stamp duty *442 whatever J or if any person shall, *knowingly, and without lawful excuse (the proof whereof shall lie on the person accused) have in his possession any vellum, parchment, or paper having thereon the impres- sion of any such false, forged, or counterfeit die, plate, or other instru- ment, or part of any such die, plate, or other instrument as aforesaid, or having thereon any false, forged, or counterfeit stamp, mark, or impression resembling or representing, either wholly or in part, or intended or liable to pass, or be mistaken for the stamp, mark, or impression of any such die, plate, or other instrument which hath been, or shall or may be so provided, made, or used as aforesaid, knowing such false, forged, or counterfeit stamp, mark, or impression to be false, (ir fi-audu- forged, or counterfeit; or if any person shall fraudulently use, join, fix, lently q,, place for, with, or upon any vellum, parchment, or paper, any stamp, stamps, &c. mark, or impression which shall have been cut, torn, or gotten off, or Erasing removed from any other vellum, parchment, or paper ; or if any person iiame», 'c. ^^j^.^u fj-audulently erase, cut, scrape, discharge, or get out of or from any stamped vellum, parchment, or paper, any name, sum, date, or other matter or thing thereon written, printed, or expressed, with intent to use any stamp or mark then impressed or being upon such vellum, parch- ment, or paper, or that the same may be used for any deed, instrument, matter, or thing in respect whereof any stamp duty is, or shall, or may Using be, or become payable; or if any person shall knowingly use, utter, sell, stamped q^, g^pose to sale, or shall knowingly and without lawful excuse, (the from wbicli proof whcreof shall lie on the person accused) have in his possession names, &.C., ^^y stamped vellum, parchment, or paper, from or off, or out of which erased. ^^J such name, sum, date, or other matter or thing as aforesaid, shall have been fraudulently erased, cut, scraped, discharged, or gotten as aforesaid; then and in every such case every person so offending, and every person knowingly and wilfully aiding, abetting, or assisting any person in committing any such offence, and being thereof lawfully con- victed, shall be adjudged guilty of felony, and shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for (q) See last note. CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 442 uuy term not less than seven years, or to be imprisoned for any term not exceeding four years, nor less than two years." The 9 Geo. 4, c. 18, entitled " An act to repeal the stamp duties on 9 Geo. 4, c. cards and dice," &c., enacts, by sec. 35, that " if any person sliall forge j.^'/'^^^^' , or counterfeit, or shall cause or procure to be forged or counterfeited any stamps re- type, die, seal, stamp, mark, plate or device, or any part of any type, '='''"^' '° die, seal, stamp, mark, plate or device, which shall be at any time pro- jico o* ut- vided, made, or used by or under the authority of the commissioners oftcnngthem stamps in pursuance of this act, or shall counterfeit, or shall cause or J]^'^'j!^|^°"°" procure to be counterfeited or resembled the impression of any such stauiiis. type, die, seal, stamp, mark, plate, or device, or any part thereof, upon any playing card or dice, or upon any label, thread, or paper ; or shall forge or counterfeit the name, handwriting, or signature of any sealing officer or other officer of stamps, to or upon any wrapper, paper, or material in which any dice shall be actually enclosed; or shall forge or counterfeit, or shall cause or procure to be forged or counterfeited any mark or name, or any part of any mark or name, directed to be used by the commissioners of stamps(r) in pursuance of this act, in order to *dis- *443 tluguish the maker of any such cards or dice respectively, and printed or marked on, or affixed to, or making a part of the wrapper, label, or paper in which any playing cards or dice shall be actually enclosed, with intent to defraud his majesty, his heirs or successors, of any of the duties at any time by law payable upon cards or dice j or shall utter, sell, or expose to sale, or part with for use in play, any card, dice, ace of spades, label, wrapper, or jew whatsoever, with such counterfeit seal, stamp, mark, device, impression, name, or signature, knowing the same to be counterfeit, or shall privatel}', or fraudulently use any seal, stamp, mark, plate, device, or label at any time provided, made or u.scd by or under the authority of the commissioners of stamps in pursuance of this act, with intent to defraud his majesty, his heirs and successors, of any of the duties at any time by law payable upon cards or dice; every person convicted of any such offence, in due form of law, shall be adjudged a felon, and shall suffer death. "(.s) The Irish stamp act, o6 Geo. 3, c. 56, s. 37, (^) enacts, " that if any per- 56 Geo. 3, son in any part of the United Kino-dom of Great Britain and Ireland, or ^;^^,' ^' ^^' f Irisii net ) of any of the dominions thereto belonging, shall counterfeit or forge, or Forging cause or procure to be counterfeited or forged, any type, die, mark, or ^['.v type, stamp, to resemble or represent, or be mistaken for any type, die, mark, the'stamp or stamp at any time heretofore kept or used, or hereafter to be keptor office i» used at the stamp office in Dublin, for denoting the charging or marking having pos- on vellum, parchment or paper, or other matter directed to be stamped, session of any of the stamp duties payable under or by virtue of any act or acts counterfeit . . . p . 'ypps, dies, which has been or shall be at any time in force in Ireland, although such &e., or act or acts may not be in force, or such type, die, mark or stamp may m^^rking not be kept or used at the said stamp office at the time of such forging ic, with ' or counterfeiting ; or if any person or persons (save and except such ^"y ^oun- [r\ See note (/»), ante, p. 441. (.«) This section being neitlier expressly repealed Viy tlic 1 AVm. 4, c. CG, nor the offences contained in it rendered capital by that statute, such offences are now punishable (under the 1 Wm. 4, c. GG, ss. 1 and 2G, and the 1 Vict. c. 90, s. 5,) in the manner pointed out in note (h), ante, p. 415. (r) Repealed by the G & T Win. 4, c. T6, s. 32, "as relates to newspapers or the duties thereon, or to any discount or allowance in respect of the said duties." The 5 & G Vict. c. 81 and 82, contain new regulations as to the stamp duties in Ireland. 443 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. torfoit do- person or persons as sliall be lawfully entitled and authorized to have vice, mark, ,^^^ ^^ ^^g^ ^j^^ Same for the purpose of stamping vellum, parchment, or using utter- paper, or other matter directed to be stamped by or under the authorit}- nig, or liav- ^^ jj^g g^^jj commissioners of stamps for the time beino;,') shall have in his, ]Dg in pos- . ^ °'-' ' session with her, or their possession, any type, die, or mark or stamp made to resem- intent to \)\q q^. represent, or be mistaken for any type, die, mark, or stamp, here- paper, Ac, tofore kept or used, or hereafter to be kept or used at the said stamp with coun- oflSce, for denoting the charging or marking on vellum, parchment, or v'ico ^inark P'''pei*j or other matter directed to be stamped, any of the said stamp Ac, and duties SO payable as aforesaid, although such type, die, mark, or stamp fraudulent ^^^^^ ^°*' ^® ^^^^^ ^^P*" °^ ^^^^ ^* *^® ^^^^ stamp office, or the duty using of denoted thereby shall not be then payable in Ireland ; or if any person any stamps, ^^ persons shall mark or impress, or cause or procure to be marked or marks, Ac.,. ^ ni i-i by any of- impressed on any vellum, parchment, or paper, or other matter which tiecr of the heretofore was or hereafter shall be directed to be stamped, any *device, sioners of mark, or impression to resemble or represent, or be mistaken for any stamps, or device, mark, or impression which has been or shall be used, kept, or possessi'oif niade, marked or impressed at the stamp-office in Dublin, for denoting of any pa- the charging or marking on vellum, parchment, or paper, or other matter per, Ac., ^^ thing SO directed to be stamped, any of the said stamp duties so pay- ly stamped, able under or by virtue of any act of parliament which shall be or shall telony. have been in force in Ireland at or before the time when such mark, ^'*^ device, or impression shall have been so used, kept or made, marked or impressed, at the said office, although such act or acts may not be in force, or such device, mark, or impression may not be used or kept, marked or impressed at the said office, at the time of such offence committed : or if any person or persons shall use, utter, vend, or sell, or cause to be used, uttered, vended, or sold, or shall have in his or her possession with intent to use, utter, vend or sell the same, any vellum, parchment, or paper, or other matter, with any counterfeit device, mark, or impression thereon, to resemble or represent, or be mistaken for any device, mark, or im- pression which has been or shall be used, kept or made at the stamp- office aforesaid for the purposes aforesaid, or any of them, although not then used or kept for the said purposes, or any of them, or although the duty denoted thereby shall not be then payable in Ireland, knowing such device, mark, or impression, to be counterfeited, or if any officer or offi- cers in the employment of the commissioners of stamps, or any other person or persons whatever, shall, with intent to defraud his majesty, his heirs, &c., mark or impress, or cause or procure to be marked or im- pressed, or be aiding, abetting, or assisting in marking or impressing, or in causing or procuring to be marked or impressed any stamp, mark, or impression, denoting any of the said stamp duties, on any vellum, parch- ment, or paper, or other matter directed to be stamped, not delivered to him or them by or by the authority of the said commissioners of stamps for the purpose of being stamped with any type, die, mark, or stamp, which has been or shall be used, kept or made at the stamp-office afore- said, for denoting the charging or marking on vellum, parchment, or paper, any of the said stamp duties so payable under or by virtue of any act of parliament, although such type, die, mark, or stamp shall not be then kept at the said stamp-office, or the duty denoted thereby shall not be then payable in Ireland ; or if any person or persons shall, with in- tent to defraud his majesty, his heirs, &c., knowingly have in his, her, or their possession any vellum, parchment or paper, or other matter CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 444 required to be stumped, so fraudulently stamped or marked with any mark or stamp to denote any of the aforesaid duties," then and in every of the said cases, every such person so offending shall be adjudged a felon, and shall be transported for life. The thirty-eighth section enacts, that whenever any vellum, parch- :,Q Goo. .3. mcnt, or paper shall be found in the possession of any person licensed^- ^''^ *• 38. to deal in and retail stamps in Ireland, or who shall have been so possession licensed within six calendar months then next preceding, having im- '^7 P®"**"^' pressed thereon any counterfeit device, mark or impression to resemble deal in or liable to be mistaken for any device, &c., used, kept, or made at the stamps in said stamp-office, although such device, &c., shall not then be so used or y^iiuj^' ' ° kept ; or although the duty denoted thereby shall not be then payable i'ain.-r, &c., in Ireland; in every such case the person in whose possession such vcl- J*'''''.^^""' lura, &c., shall be *so found, shall be deemed to have had the same in vices, possession with intent to use, utter, or vend the same with such coun-™"'"'^^' **'• tcrfeit device, &c., thereon, unless the contrary shall be satisfactorily *44o pi'oved ; and shall also be deemed to have had such vellum, &c., in pos- session, knowing the stamps, devices, &c., thereon to be forged and counterfeited, and be liable to all punishments, &c., inflicted upon per- sons using, uttering or vending false, forged or counterfeit stamps, or having such false, forged, or counterfeit stamps in their possession, knowing the same to be forged, unless such person shall in all cases satisfactorily prove that such vellum, etc., and the stamps thereon, were procured at the stamp-office in Dublin, or from some distributor of stamps in Ireland. By sec. 52, "if any person not being an officer, workman, servant, 56 Geo. 3, or agent for the time being of the said commissioners of stamps, and *l: ?'?• ^- ^"• authorized and appointed by them for that purpose and for their use Making, only, shall make or use, or cause or procure to be made or used, or^^^^-'. o*" knowingly aid or assist in making or using, or, without being autho-g^fgVi"n of'' rized and appointed as aforesaid, shall knowingly have in his, her, or witliout ex- thcir custody or possession, without lawful excuse, (the proof whereof ^"J,^"°^p shall be on the person accused) any frame, mould, or instrument for the for paper ' making of paper in the substance whereof the words • stamp-office,' or^^'"' '^° the greater part of such words would be visible, or in the substance "stamp- whereof any device or distinction would be visible, peculiar to and ap. •^'^i*^^-'.'^"' pearing in the substance of the paper which shall from time to time be^tc., or '^ used by the commissioners of stamps as aforesaid ; or shall make, or having pns- cause or procure to be made, or knowingly aid or assist in making auy^^^^^" "^^ paper in the substance whereof there shall be visible the said words with tUoso < stamp-office,' or the greater part of such words, or any of such device "'?.V''' °^ .... ' .. ^ ^ . ' •' with any or distinction peculiar to and appearing in the substance of the paper device. Ac, which shall be so used by the said commissioners of stamps ; or if any P'^*^"!"^'" *"^ person, not being authorized or appointed as aforesaid, shall knowingly u^ed i>y tho have in his or her custody or possession, without lawful excuse, (the (-""I'uis- proof whereof shall be on the person accused,) any paper whatsoever s{!JJJj'ns. in the substance whereof there shall be visible the words 'stamp-office,' or the greater part of such words, or any device or distinction peculiar to and appearing in the substance of paper so from time to time used by the said commissioners; or if any person not being authorized or ap- pointed as aforesaid, shall by any art, device, mystery, or contrivance, cause or procure, or knowingly aid or assist in causing or procuring to appear in the substance of any paper whatsoever the words 'stamp-office,' 445 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. or the greater part of sucli words, or any such device or distinction peculiar to and appearing in the substance, of the paper which shall be so used by the said commissioners of stamps ;" every person so offend- ing in any of the said cases shall be adjudged a felon, and shall be trans- ported for the term of his or her life. 5C Geo. 3, By sec. 58, a pecuniary penalty of forty pounds is imposed upon any e. 56, s. 68, pgj,g(^Q ^jjQ fQj. jj-,^^ purpose of evadinfr any of the stamp duties paya- iiiiposes a 1 , . X 1 1 1 11 1 • • 1 1 penally of blc in Ireland, shall execute any stamped instrument without a date, 40/. for or bearing date prior to the execution, or shall fraudulently erase, &:c., frauds in the name of any person or any date, &c., engrossed or written in such evasion of instrument, or shall fraudulently cut, tear, or take off any mark or diuieA'n^ stamp from any piece of vellum, &c., with intent to *use them for any Ireland. other writing, &c., in respect whereof any stamp duty shall then be *446 payable. 56 Geo. 3. The 56 Geo. 3, c. 78, entitled " An act for the better regulating and c. 78, im- secui-Jncf the collection of the duties on paper in Ireland, and to prevent poses pe- oil.,,. 1 . ,. p • nalties on frauds therein, imposes large pecuniary penalties on persons forging persons stamps, &c., ou any pasteboard, paper, &c., or having in possession or stamps, using such forged stamps; and, generally, upon persons counterfeiting ut that provision was re- pealed by the 31 Geo. 2, c. 32, s. 14, which by sec. 15 made the forging or counterfeiting the stamp, &c., used for marking plate in pursuance of the 12 Geo. 2, c. 28, s. 8, by the Goldsmiths' Company, &c., the mark- ing plate, &c., with a forged or counterfeited stamp, the transposing the stamp, &c., impressed from one vessel to another, the selling or export- ing plate with a forged, counterfeit, or transposed mark, and the having such stamp, &c., in possession, felony without bouelit of clergy. This section of the 31 Geo. 2, c. 32, after having been amended by the 32 Goo. 2, c. 24, was i-epealed by 13 Geo. 3, c. 59, s. 1. The 13 Geo. 3, c. 59, s. 2, enacts, "That if any person whatsoveris Geo. a, shall cast, forge, or counterfeit, or cause or procure to be cast, forged, or YoTsSne counterfeited, any mark or stamp used, or to be used, for the marking .to., any or stamping gold or silver plate, in pursuance of any act or acts of par- '"""' "^' , I o D 1 ' r J r staini) used liamcnt now in force by the Company of Goldsmiths in London, or by for goM ..r the wardens, or assayer or assayers, at York, Exeter, Bristol, Chester, f^''^'^"''!''^'' Norwich, or Newcastle-upon-Tyne, or by any maker or worker of g >ld (jyij. 447 OP FORGING AND TRANSPOSING STAMPS. [bOOK IV. smith's or silver plate, or any or either of them, or shall cast, forge, or coun- Company, ^^.j-f-gj^^ q^. cause or procure to be cast, forged, or counterfeited, any mark, jissayor or stamp, or impression, in imitation of or to resemble any mark, stamp, workers of ^^ impression made, or to be made, with any mark or stamp used, or to forging, be used, as aforesaid, by the said Company of Goldsmiths in London, or .tc., in imi- ]-,y i]^q g.^;(j wardens, or assayer or assayers, or by any maker or workers s'nch mark, of gold or silver plate, or any or either of them ; or shall mark or stamp, Ptarap, n"8irai- as well as by the Company of Goldsmiths in London, and by the war-,|,j. j;^ ,jgf,_ dens or assayers at York, Exeter, Bristol, A:c. ; and it makes the of- •'!, e. 5U. fenders guilty of felony without benefit of clergy. (i-) After this came the 38 Geo. 3, c. G9, (which allowed *(joId tcarcs to be manufactured *449 at a lower standard than before) and contains provisions nearly in a similar form to those of the 13 Geo. 3, c. 59, s. 2, as to the forging, kc, any mark or stamp used, ^^ in pursuance of tJu'.f ar(^" for the mak- ing or stamping i/old ])hi(c by the Company of Goldstuiths in London or Edinburgh, or the Birmingham or Sheffield Company, or by the war- dens or assayerg at York, Exeter, Bristol, &c. : but does not extend to marks, &c., used by any maker or worker of gold plate; and the de- scription of articles, the marking or stamping of which with a forged or counterfeited mark or stamp is made one of the offences therein enu- merated, is, <'any wrought plate of gold, or any wares of silver, brass, or other metal gilt over, and resembling plate of gold." And the of- fences therein enumerated are not made capital, but felonies punishable by transportation for seven years, (zc) It was observed as singular that when the subject was under the review of the legislature, aud the pun- ishment for the offences under this act limited to transportation, offend- ers rjusdem fjencris\i.x\(\{iv a former act (24 Geo. 3, sess. 2, c. IG,) should be left subjected to capital punishment. (.r) It has been held that a person may be convicted under the 10 Geo. A fraudu- 3, c. 59, s. 14, and the 88 Geo. 3, c. 69, s. 7, if he be proved to have is°not°ne- transposed the mark of the Goldsmith's Company from one gold ring ccssary to to another, although both be genuine rings, and although the jury fiii"^ '^"t'lifn'^tl^e*' that he did it without any fraudulent intent. The prisoner was indicted 1.3 Geo. 3, under the 13 Geo. 3, c. 59, s. li, aud the 38 Geo. 3, c. 69, s. 7, for ""-gg^^J^g lawfully transposing the lion passant from one gold ring to another jc. 09. and it was clearly proved that he had transposed the mark, but there was no proof that the ring, to which it was transposed, was not genuine gold; and the jury found the prisoner guilty of transposing the hall mark from one genuine ring to another genuine ring, but without any fraudulent intent; it was held, however, that, as there were no words in the statutes referring to any fraudulent intent, that finding amounted to a verdict of guilty. (^) The prisoner was, however, afterwards par- doned. We have seen that the stamp act, 55 Geo. 3, c. 184, s. 7, makes the Cuttiug, fraudulent cutting or getting off any stamp from any paper, &c., with ^^^' ^"tnmps intent to use the same upon any other paper, &c., chargeable with the from paper duties thereby granted, a capital offence.(s) A former statute, 12 Geo. r^'ygg"i\'°^' 3, c. 48, contains more general provisions ; but makes the offences tiierein mentioned felony, punishable only by transportation. It enacts, j,''_j>.'^°'j^' " that if any person or persons shall write or engross, or cause to be person (r) Sec. 10. And it refers to the 1st Decciiilior, 1784, instead of the 'A\\ July, 1758. This i^ection is neither express)}- repealed by tlie 1 Wni. 4, c. CG, nor arc the otTonces contained in it made capital by that act; conseciuently they are punishable iu the manner pointed out in note (A), rtw^c, p.415. {w) 38 Geo. 3, GO, s. 7. This statute contains no provisions for the punishment of princi- pals in the second degree and accessories ; they are, therefore, punishable in the manner stated in note (?/), ante, p. 448. (z) 2 East, P. C. c. 19, s. 18, p. 892. [y] Rex I'. Ogden,» 6 C. & P. 621. See Reg. v. Allday,^)^*/, p. 451. (z) Ante, p. 440. * Eng. Com. Law Reps. sxv. 570. 449 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. writing any written or ciigrossecl, cither the whole or any part of any writ, mandate, date' l^u"' bond, affidavit, or other writing, matter or thing whatsoever, in respect on paper whereof any duty is or shall be payable by any act or acts made, or to *°"' ^^'^''°" be made in that behalf, on the whole or any part of any piece of vellum, shall havo parchment, or paper, whereon there shall have been before written any been before gthcr bond, mandate, affidavit, or other matter or thine, in respect other writ, wlicreof any duty was or shall be payable as aforesaid, before such vel- Sic, liable luixj^ parchment, or paper, shall have been again marked or stamped *A'r'(\ according to the said acts; or shall fraudulently erase or *scrape out, fore such 0^ cause to be erased or scraped out, the name or names of any person paper, etc., or pcrsons, or any sum, date, or other thing written in such writ, man- beon a^Iin ^^^^J affidavit, bond, or other writing, matter or thing, as aforesaid, or stamped; or fraudulently cut, tear, or get off any mark or stamp, in respect whereof fraudulent- qj, ^jjei-gijy any duties are or shall be payable, or denoted to be paid or uamos, payable as aforesaid, from any piece of vellum, paixhment, paper, play- sums, Ac, JQg cards outside any parcel or pack of playing cards, or any part thcrc- offany ° of, with intent to use such stamp or mark for any other writing, matter stamp from or thing in respect whereof any such duty is or shall be payable, or dc- ^kl. wHh'^' noted to be paid or payable as aforesaid ;" every person so oflfending, intent to and every person aiding, abetting, &c., to commit any such offence, euilt*' of ^^ be deemed to be guilty of felony, and be transported to some of felony. his majesty's plantations beyond the seas for a term not esceeding seven An offender y^^''^' -A-nd it further enacts that if any such person so convicted or escaping or transported shall voluntarily escape or break prison, or return from from" rans transportation before the expiration of the time, such person being there- portation, of lawfully convicted shall suffer death as a felon without benefit of IS to suffer clergy, and shall be tried for such felony in the county where he shall as a felon. , , , , be apprehended. In order to jf, Jjag been held that to constitute a felony within this section by withtn the Writing some matter liable to stamp duty on paper, on which had before 12 Geo. .3, been written some other matter liable to stamp duty, before the paper act must°bo ^''^'^ been again stamped, it is essential that the party writing should done with a do SO with some fraudulent intention. An indictment stated that the fraudulent defendant did feloniously write the word " sis," being a certain part of a license to let horses on hire, in respect whereof a certain duty was then payable, on a certain piece of paper whereon had been before written a license to let horses for hire, which said paper had before been duly stamped, and it appeared that the defendant was the father of the farmer of the post horse duty of the district, and was in the habit of acting for his son in the duties of this situation, and that in 1833 one Hinckley took oiit a license to let post horses, which was granted by the defendant and bore a 7s. 6(7. stamp. This license was renewed in 1834, and in 1835, on an application for a further renewal, the defendant instead of grant. ing a new license, as he ought to have done, altered the date of the old license from 1833 to 1835, and the time of its expiration from 1834 to 1836, and received 7s. 6c/. from Hinckley. Lord Abinger, C. B. — "I consider that no fraud is proved. To come within the mere words of the act, it is not necessary that it should be done fraudulently ; still I am of opinion that if a person innocently, and without any intent to defraud, wrote any thing on this paper, it would not be an offence. Whether fraud was intended, is a question for the jury." " Suppose a person had made a perfect deed, which was executed, and afterwards it was found necessary to alter the date and some of the terms, and the parties altered CHAP. XXXVII,] OF FORGING AND TRANSPOSING STAMPS. 4C0 tbe original deed intending to send it to the Stamp OflSce to have new stamps put upon it, "would ihcy be liable to be transi)ortcd ? The cnact- nioit on which this case is founded is general, and makes it a felony to Avrite upon any stamped document any thing which makes it liable to a new stamp before such new stamp is put upon it." For the crown it was submitted, that by the terms of the act, any person thus writing upon a stamped document was within its *provisions, even if he had no *4,jl intent to defraud. Lord Abinger, C B. (in summing up) — ' sixth count was the same as the fifth, with the exception of alleging the offence to be that he did cut, tear, and get off the impression from a certain piece of vellum. The prisoner was a junior clerk in the stamp office, and in consequence of the illness of another clerk, attended on the 9th of April, 1831, before one of the commissioners in the office for making allowances ujion spoiled stamps, upon which occasion it was his duty to cut off from each of the instruments on which allowances were to be made, a piece upon which the stamp was impressed, and to throw into the fire the jiiece so cut off. Upon the 9th of April, two stamps only of the amount of 25^. were brought before the commis- sioners for allowance, and it was satisfactorily proved that the prisoner upon that occasion cut off the 2:)arts of two instruments upon which those stamps were impressed, but instead of putting them into the fire, he re- tained them, and afterwards contrived to detach the impressions from the blue paper upon which the stamps were impressed, and affixed them to two other skins of parchment, which he procured from a law stationer, with the words ''This Indenture" engrossed thereon, and offered the skins with the impressions so annexed for sale. It was proved that stamps impressed on blue paper are used for vellum and parchment only, that stamps of this description of the value of 25/. w^cre in use before the passing of 55 Geo. 3, but the officers of the stamp office could not undertake to say that the impression in question had not been made and issued before the passing of that act. It was objected on behalf of the prisoner, first, that the allegations in the indictment which stated the impressions to have been made from a die used in pursuance of 55 Geo. 3, were not sustained ; secondly, that the act did not apply to the case of impressions lawfully cut off, by order of the commis- sioners, from the instruments to which they were affixed, and after- wards detached from the pieces of vellum or parchment whifh had been lawfully cut oft'; and, thirdly, that the act was only applicable to cases (r) Field's case, 0. B. 1785. 1 Leach, 383. *454 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. where the impressions were *(letachctl, with intent to use them upon some vellum, parchment, or paper chargeable with a duty ; and that the parchment to which the impressions were affixed by the prisoner, were not in a state to be chargeable with a duty. The jury found the pri- soner guilty ; and in answer to questions suggested to them by the court, stated, first, that they could not say whether the impressions in question were issued before or after the 55 Greo. 3 ; secondly, that they acquitted the prisoner of any fraudulent intent at the time when he cut from the spoiled instruments the pieces to which the impressions were affixed ; thirdly, that when he detached the blue paper bearing the im- pression from the pieces so cut off, he did so with a fraudulent intent to use them upon parchment; fourthly, that he intended to use them upon parchment destined to be employed as an indenture. A verdict of guilty was then entered upon the fifth and sixth counts. And upon a case reserved as to the propriety of the conviction upon the fifth and six counts, the judges were unanimously of opinion that upon this finding the conviction was good.(/) ralmci's The following case arose upon the 23 G-eo. 3, c. 49, s. 20, by which suuction o'f^* was enacted that if any person should forge, &c. any stamp or mark the words directed or allowed to be used by the act for the purpose of denoting '"^Y bl" ^^^ duties therein mentioned, or should fraudulently use any of the said to the said stamps or marks, or should "utter, vend, sell, or expose to sale any "'^"'''®f"^° -palmer liahle to the said duties, with any counterfeit mark or impression :i. c. 49, s. ' thereon," knowing the same to be counterfeited, such, person should be 2>^- guilty of felony. The indictment against the prisoner contained two counts. The first, after stating that a certain stamp was provided by the statute for stamping every piece of paper upon which any receipt, &c., upon the payment of money amounting to 21., &c., was written with a stamp duty of 2d., &c., stated, that the prisoner, intending to defraud the king of the duty on, &c., " unlawfully, fraudulently, and feloniously did utter and expose for sale to one Hannah Gabriel, 1000 pieces of pa- per liable to the said duty of twopence, with a counterfeit impression upon each and every one of the said pieces of paper I'esembling the impression of the said stamp then and there used, according to the form of the sta- tute, &c., he the defendant at the said time of uttering, &c., well knowing the said impression on the said pieces of paper so by him uttered, &c., to be counterfeited ; against the form of the statute, &c. The second count was the same as the first, except in this respect, that the words " liable to the said duty of twopence" were omitted. An objection was taken on behalf of the prisoner, on the ground that the words " papers liable to the said duties" were entirely void of the precise sense and definition to which they were applied ; and also that the indictment had not suffi- ciently stated the offence according to the words of the statute. The prisoner having been found guilty, the question was reserved for the consideration of the judges, ten of whom (Lord C. B. Skinner and Hotham, B., being absent from indisposition) were unanimous that the conviction was right ; and their opinion was afterwards delivered by G-ould, J., to the following effect. " The objection arises upon a sup- *455 posed inaccuracy of the word^ in the *statute, " paper liable to the said duties," in the plural number; which words the present indictment has properly pursued and necessarily applied to the particular duty in ques- (/) Eex V. Smitb,^ K. & M. C. C. R. 314. 5 C. & P. 107. S. C. a Eng. Com. Law Reps. xxiv. 2.S5. CHAP. XXXVII.] OF rORGING AND TRANSPOSING STAMPS. 455 tion, viz. the duty of twopence on receipts; and the judges are of opinion that the indictment is properly drawn, although a duty of one descrip- tion only is mentioned. The material question is, what the legislature meant by the words "paper liable to the said duties?" And it was said that as one particular piece of paper cannot be liable to any of the duties more than another, it would follow that all the writing paper in the world might be considered as "paper liable to duties," and every utterer or seller of paper of any description, might be indicted for a capital fiffence in having exposed to sale " paper liable to the said duties." 15ut the judges are of opinion that, upon a due attention to the present statute and the subsequent statute, 24 Geo. 3, c. 7, upon the same sub- ject, it will appear that the words "paper liable to the said duties," are capable of a clear and unequivocal meaning. The rules by which tlie expressions of the legislature arc to be interpreted are, first, that if auy part of a statute is penned obscurely, and other passages in the same statute will elucidate that obscurity, recourse ought to be had to such context for that purpose; and secondly, that if there are several statutes upon the same subject, they arc to be taken together as form- ing one system, and as interpreting and enforcing each other. By ailoptiug these rules in the present case, it will appear that the words " paper liable to the said duties," arc not to be taken in the large and absurd sense which was attempted to be imposed upon them, namely, as applying to every species of paper on which receipts might probably bo written, but are to be taken as applying to such pieces of paper only as are destined or prepared for the uses mentioned in the statute. The paper which is destined and prepared for the use of writing receipts thereon is the paper meant by the words " paper liable to the duties;" and therefore all paper upon the face of which a mark appears resem- bling the mark which the act requires, is evidently " paper liable to the duties," because the preparation of thus marking it discovers the purpose for which it is designed. Upon the papers mentioned in the indictment, there appears a false stamp or impression resembling the true stamp which the law requires for receipts: this discovers the use for which they were destined and prepared, and brings them within the general words of the act, "paper liable to the said duties." The judges are, therefore, unanimously of opinion that the prisoner was properly convicted; and that the words "paper liable to the said duties" are to be applied, according to the subject matter, to such paper, which, from the counterfeit mark upon it, appears to be prepared to be used, as if the mark were genuine, for a receipt. "(r/) It appears also that some of the judges were of opinion, that the second count which omits the words "liable to the said duties," was sufficient; for it was a charge of fraudulently uttering, &c., paper, with a counterfeit impression, resembling the said stamps used in pursuance of the said statute, knowing, &c.; and this in substance was a charge of its being paper denoted by the said impression to be destined for writing receipts, and, as such, being paper liable to that duty.(/t) *A question was made in the following case, as to a distinction be- *456 tween the words " duties of excise," and " duties under the manage- Jf-"^') ?"^ nient of the commissioners of excise." The prisoners were indicted for ceUi's case. {(j) Halmors case, 0. B. 1784, Ilil. T. ITSS. 1 Leacli, 552. 2 East, V. C. c. 10, s. 19, p. i-9:). {h) 2 East, r. C. c. 19, s. 19, p. 895. 456 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. Tho words forging a stamp on foreign muslins, printed, &c., here, with intent to 0x^8^" ^ defraud the king of the duty ; and one of them having been convicted, and"au- an objection was taken by his counsel on these grounds. That the ties under Qg-gj^cg ^ag originally created by the 25 Geo. 3, c. 72, s. 17, by which the man- t ^ • r ■ o ^ ■ ^ ^ • T 1 agemont of the duties, tor securing or which the stamps were provided, were im- the com- posed. That by 27 Geo. 3, c. 13, s. 35, all the former duties are re- of excise," pealed, except duties due, and penalties and forfeitures incurred at the held to be time of passing that act ; and therefore it was argued that all penalties movisJ' were annihilated unless re-enacted. That this, as well as all preceding statutes, took a distinction between chities of excise, and duties %inder the management of the commissioners of excise ; according to what was observed by Mr. Justice Ashurst, in Rex v. the Justice of Surrey, 2 Term Rep. 504. That sec. 38 of the latter statute states that " all pains, penalties, fines and forfeitures of any nature or kind whatsoever, as well pains of death as others, for any ofience in force before the tenth of May, 1787, made for securing the revenue of excise, or other duties under the management of the commissioners of excise, &.C., shall extend to and be applied for, and in respect of the several ditties of excise, and allowances, bounties, and drawbacks of duties of excise thereby charged and allowed," &c. That, therefore, those penalties and pains of death, being re-enacted only so far as they relate to duties of excise, and not to duties or sums under the management of commissioners of excise, (which was the case with respect to the duty in question) they could not be revived by construction ; but being so highly penal, must be specially re-enacted. Another objection was also taken, that the in- dictment did not pursue the words of the statute; inasmuch as it stated the duty to be chargeable /or, on, and in respect o/ foreign muslin, &c., whereas the words of the statutes imposing the duty were "fov and upon" in some of the clauses, "on" in others, "upon" in others, and " for" in the schedule ; but this objection was afterwards thought not worth urging. Upon the principal objection ten of the judges, (all who were present at the conference) held that the conviction was right. Eyre, C. J., thought that the naming of ditties of excise and duties un- der the management of the commissioners of excise was tautology. But all held it clear that the expressions were used as synonymous in this act ; adverting to schedule F., in which the duties on muslin are de- nominated " duties of excise."(^) On an indictment on the statutes 12 Geo. 3, c. 26, s. 8 ; 31 Geo. 2, c. 32, s. 14, and 24 Geo. 3, c. 53, s. 16, for removing from one silver lionpassant^neehnckle to another silver kneebuckle certain stamps, marks, and Lee's case, Variance between a and a lion rampant. impressions; to wit, the king's head, and the lion rampant, with intent to defraud the king, against the statute, &c., on producing the silver kneebuckle in evidence, it appeared that the mark was a lion passant, instead of a lion rampant ; and the court held the variance fatal.(i) *In a modern case it was holden, that the engraving a counterfeit stamp similar in some parts, though dissimilar in others, to the leg.il engraving a stamp, cutting out the dissimilar parts, concealing the space from whence countcrleit ti^e dissimilar parts were cut out, and then uttering the similar parts as a genuine stamp, amounted to a forgery and guilty uttering. And it was *457 Collicott's case. The stamp, similar in (?) Rex V. Hall and Cruchfield, 0. B. 1T95. East. T. 1705. 2 East, P C. c. 19, s. 19, p. 895. (J) Lee's case, 0. B. 1786. 1 Leach, 416. CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 457 also holdcn ia the same case, that it is not necessary in an indictment some parts for forging a stamp to set out the impression or inscription upon it, oigj*^"," •*''■"' to name the amount of the duty thereby denoted : hut that it is sufficient others to to describe it as a stamp provided and used in pursuance of a certain act ""^' ''''^''''' of parliament. The indictment was framed on the 44 Geo. 3, c. 98, for tiug out the forging and uttering medicine stamps, and consisted of seven counts. J'siiwilar The first count charged that the prisoner on the 1st of November, 1811, celungTho feloniously did forge and counterfeit, &c., a certain mark provided and 'P'^co from used in pursuance of a certain act of Parliament, iutitlcd, &c. The T ""^ V*^" second count charged that he did feloniously utter a certain paper with parts were a forfjred and counterfeit mark, which mark was forijed and counter-'^"',*'"/' , . ^ tinu then feited to resemble a certain mark provided and used in pursuance of the uttering tho said act, he well knowing the said mark to be forged. The third count ^''"''"'' was for knowingly vending and selling a certain paper with a forged geuuino "^ mark, &c. The four remaining counts were the same as the former, i^'ii'"!', except that they described it as a skimp instead of mark: and all the fJrger'y a°nd counts laid the intention to be to defraud his majesty of the duties guilty ut- charged and imposed by the said act. It appeared upon the evidence, ia^uiicie^nt that the prisoner was a vendor of patent medicines, and sold certain in an in- boxcs of Dr. Jebb's pills with the counterfeit label on them. Many of l!'*^^™*^".^ these counterfeit labels were found in his possession entire. They were a stamp as of^an oblong form, coloured with red ink, similarly to the stamps for ''^ ''^-''^r' patent medicines issued by government; and having like them, at one and used in end, the word "stamp," and at the other end the word " office," printed pursuance transversly, and on a blank on the first-mentioned end, printed longi- ^^^^f^'p*"'" tudinally, the words "value above Is.," and on a blank on the other liamcut. end, also printed longitudinally, the words "not exceeding 2s. GcZ.," as the legal stamps also have ; and having in the centre a white circle, which, in the counterfeit was all blank, except that it bore the words " Jones, Bristol," printed thereon ; whereas in the legal stamp that circular space was circumscribed with a red ring, and inscribed with another smaller red ring, and in the circular space between the two rings were printed the words, "duty three-pence;" and on the space within the inner red ring on the legal stamp was impressed in red ink the figure of a crown. When the prisoner used these stamps, he cut out the circular space bearing the words " Jones, Bristol," and pasted on the packets of medicine the two ends of the label without the middle part, and concealed the deficiency of that part by a waxen seal extend- ing over it. Stamps were uttered in this state by the prisoner affixed to the pills which he sold. Upon these facts the jury found the pri- soner guilty; but two objections were taken in his behalf; first, that the forged stamp was not a sufficiently near resemblance of the genuine stamp to constitute forgery; secondly, that the indictment was deficient for not setting out or describing what the stamp was that was forged. The objections were referred to the consideration of the twelve judges; ten of whom (Lawrence, J., and Bayley, J., being absent) were of opinion *that the objections were unfounded, and the conviction right. *4o8 Grose, J., in delivering their opinion, said: — "As to the first point, it was proved, that this stamp had, in every respect, and in all its parts, a perfect resemblance to a genuine stamp, excepting only that the centre part in a genuine stamp, which specifies and denotes the duty, was in the forged stamp cut out ; and a paper with the words, ' Jones, Bristol,' on it, pasted over the vacancy. It was also proved, that those parts Vol. II.— 30 458 OF THE FOIIGERY OF OFFICIAL PAPERS, ETC. [bOOK IV. which still remained were a perfect resemblance of the same parts on the genuine stamp, and that the whole was a fabrication so artfully contrived as to be likely to deceive the eye of every common observer. An exact resemblance, or fac simile, is not required to constitute the crime of forgery ; for if there be a sufficient resemblance to show that a false making was intended, and that the false stamp is so made as to have an aptitude to deceive, that is sufficient. In this case the jury, by their verdict, have found that this stamp had a sufficient likeness to give it an aptitude to deceive, which is all the law requires. As to the second point, the indictment charges the prisoner with having forged a certain mark, and with having uttered a certain paper with a forged and counterfeited mark, resembling a mark provided and used in pur- suance of the act : and the other counts describe it to be a stamp. The statute makes the forging and uttering of such a marJc or stamp, as is thereby directed to be affixed to these articles, a capital offence. The indictment contains all the words that the act requires to constitute the offence.''(A-) Trial in the With respect to the trial of offences against the stamp acts, the 53 whel-lftho ^^°" ^' ^" '^^^' ^- ^^} enacted, " that from and after the passing of this offences act, all criminal offences committed against or in breach of any act or were com- ^^^^ Qf parliament now in force, for granting or securing any of the Geo. 3) c'. duties under the management of the commissioners of stamps, shall and 108, s. 24. may be inquired of, tried, and determined, either in the county or city, or town and county where the offence shall be committed, or where the party or parties accused, or any of them, shall be apprehended." *459 *CHAPTER THE THIRTY-EIGHTH. OF THE FORGERY OF OFFICIAL PAPERS, SECURITIES, AND DOCUMENTS. =■> Forgeries of official papers, securities, and documents have been made in many instances the subject of especial legislative enactments. Forging By the 32 Geo. 2, c. 14, the receiver of tlie pre fines at the alienation Ac 'ofWe ^'^^^ "^^^ directed to receive the post fine at the same time on every receiver of Writ of Covenant sued out for the passing of fines in the Common Pleas, P^^fi"^^ at j^Q(j tQ endorse the receipt of the same thereon, with his name and mark tion office, of office. The ninth section then enacted, that if any person should ^2 Geo. 2, make, forge, or counterfeit, or cause or procure, &c., the mark or hand 52 Geo.' 3* ^^ such receiver, whereby such receiver or any other person or persons c. 143, s. 5. should or might be defrauded, or suffer any loss thereby, every person convicted of such offence should be deemed guilty of felony, and suffer death without benefit of clergy. (o) The more recent statute, 53 Geo. 3, c. 143, s. 5, enacts, " that if any person shall make, forge, or coun- terfeit, or cause or procure to be made, forged, or counterfeited, the mark or hand of the receiver of the prefines at the alienation office, upon (k) Collicott's case, 0. B. 1811, argued before the judges, 25 April, 1812. 2 Leach, 1048- 4 Taunt. 300. Russ. & Ry. 212, 229. (a) These offences appear to have had the benefit of clergy extended to them by the 52 Geo. 3, c. 143, s. 1, see note (6), and not having liad any punishment expressly provided for them, and the benefit of clergy being abolished by the i & 8 Geo. 4, c. 28, seem now to ))e punishable in the manner pointed out in note (m), ante. p. 448, under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 5. CHAP. XXXVIII.] OF THE FORGERY OF OFFICIAL PAPERS, ETC. 459 any writ of covenant, whereby such receiver or other person shall or may be (lefrauded, or suffer any loss thereby ; every person so offending shall be adjudged guilty of felony, and suffer death as a felon without benefit of clergy. "(6) The 7 & 8 Geo. 4, c. 28, s. 11, after reciting the expediency of pro- Uttering a vidins; for the more exemplary punishment of offenders who commit 1"'^*' '^"J'^'" iic&to of ft felony after a previous conviction for felony, and enacting such punish- conviction meut, regulates the form of indictment for the subsequent felony, and '"o"" "■ P'"'-'- then enacts, that "a. certificate containing the substance *and effect „„_ only, (omitting the formal part) of the indictment and conviction for the '»4G0 previous felony, purporting to be signed by the clerk of the court, or other officer having the custody of the records where the offender was first convicted, or by the deputy of such clerk or ofTicer, (for which cer- tificate a fee of six shillings and eight-pence, and no more shall be de- manded or taken,) shall, upon proof of the identity of the person of the offender, be sufficient evidence of the first conviction without proof of the signature or official character of the person appearing to have signed the same ; and if any such clerk, officer, or deputy, shall utter a false certificate of any indictment and conviction for a previous felony, or if any person, other than such clerk, officer, or deputy, shall sign any such certificate as such clerk, officer, or deputy, or shall utter any such certi- ficate with a false or counterfeit signature thereto, every such offender shall be guilty of felony, and, being lawfully convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years ; and if a male, to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment." (c) The 42 Geo. 3, c. IIG, consolidated the formor acts for the rederap- Forgery of tion and sale of the land tax; and it enacted (by sec. 194), "that if conilkatos any person shall forge, counterfeit, or alter, or cause or procure to be ic, for iho forfied, counterfeited, or altered, or knowindy or wilfully act or assist '"''^^''"P'''*" ^ . .. . or sale of in the forging, counterfeiting, or altering any contract or contracts fortUc /udJ the redemption or sale of any land tax, or any assignment or assign- '"-^-^ ments of any such land tax, or of any such contract or contracts, or of (."iJe 'g[ ' any portion of land tax therein comprised, or any certificate or ccrtifi- 194- cates of the commissioners of land tax or of supply, or of any chief magistrate authorized by this act to make out such certificate or certifi- cates, or of the surveyor-general of the land revenue of the crown, or of the deputy of Cornwall, or any certificate or certificates, receipt or (/*) The first section of this statute enacts "that in all cases where any act to be ilonc or committed after the passing of tiii.s act, in hrrach of, or rexislance to any part of the laws for collecting his majesty's revenue in Great Britain, \vi>uld by the laws now in force subject the offender to suffer death, as guilty of felony, without benefit of clergy, by virtue of the said laws, or any of them, such act, so to be done or committed, shall be deemed and taken to be felony with benefit of clergy, and punishable only as such, unless the same shall alsD be declared to be felony without benefit of clergy by tiiis act." Tlie 1 Wm. 4, c. Gi>, having neither expressly repealed the .'52 CJeo. .3, c. 143, s. f), nor made the offences contained in that section capital, they arc now punishable in the manner pointed out in note (A), nnte, j). 415, under the 1 Wm. 4, c. GG, ss. 1 and 20, and 1 Vict. c. 00, s. ;">. As to principals in the second degree and accessories see the 1 Win. 4, c. 6G, s. 2."), anif. p. 410. (c) As to hard labour and solitary confinement, see the 7 & 8 Geo. 4, c. 28, g. 8, and the 1 Vict. c. 90, s. 5, ante, p. 135, note (6). The 7 & 8 Geo. 4, c. 28, contains no provisions for the punishment of principals in the second degree and accessories; the jirincipals in tl e second degree are therefore punishable in the same way as the principals in the first degn e, and the accessories iu the manner pointed out in note (?<), ante. p. 448. 460 OF THE FORGERY OF OFFICIAL PAPERS, ETC. [bOOK IV. receipts, of the cashier or cashiers of the governor and company of the Bank of England, or of any certificate or certificates, or attested copy of any certificate or certificates, directed by this act to be made out by the proper officer, or shall wilfully deliver or produce to any person or persons acting under the authority of this act, or shall utter any such forged, counterfeited, or altered contract or contracts, assignment or assignments, certificate or certificates, receipt or receipts, knowing the same to be forged, counterfeited, or altered, with intent to defraud his majesty, his heirs, &c., or any body or bodies politic or corporate, or company or other person or persons whomsoever," then and in every such case, all and every person or persons so offending shall be adjudged *461 guilty of felony, without benefit of clergy.((0 The 52 *Geo. 3, c. 143, s. 6, enacts, "that if any person shall forge, counterfeit, or alter, or cause or procure to be forged, counterfeited, or altered, or knowingly or wilfully act or assist in the forging, counterfeiting, or altering any contract, assignment, certificate, receipt, or attested copy of any certi- ficate made out or purporting to be made out by any person or persons authorized to make out the same by any act of parliament touching the redemption or sale of the land tax, or of any part thereof; or if any person shall wilfully utter any such forged, counterfeited, or altered contract, assignment, certificate, receipt, or attested copy of certificate, knowing the same to be forged, counterfeited, or altered, with intent to defraud his majesty, his heirs or successors, or any body or bodies politic or corporate, or other person or persons /' every person so of- fending shall be adjudged guilty of felony without benefit of clergy. (rfcZ) Forgery of The 23 Geo. 3, c. 70, s. 9, made the forgery of excise pennits^ &c., a excise per- gjjp-|.^l felony :(e) and a clause nearly similar was contained in the 52 2 Win. 4, c. Geo. 3, c. 143, s. 9 ; and the 2 Wm. 4, c. 16, which was passed to con- 16, s. 3. solidate the laws regulating the granting of permits under the excise laws, ized per- by sec. 3, enacts, that " every person who shall make, or cause or pro- sons mak- cure to be made, or shall aid or assist in the making, or shall knowingly iafiuTtation ^^^^ '^^ ^^^> ^^^} ^^ ^^-^^i'^^' custody or possession, not being authorized by of excise the said commissioners, and without lawful excuse, the proof whereof paper, or g^jj^i^ \[q qq the person accused, any mould or frame, or other instrument plates or having therein the words ' excise office,' or any other words, figures, types, &c. marks or devices peculiar to and appearing in the substance of tlie paper used by the said commissioners for permits, or with any or part of such words, figures, marks, or devices, or any of them intended to imitate or pass for the same ; and every person, except as before excepted, who shall make, or cause or procure to be made, or aid or assist in the mak- ing, any paper in the substance of which the words ' excise office,' or any other words, figures, marks, or devices peculiar to or appearing in ((f) These offences appear to hare had the benefit of clergy extended to them by the 52 Geo. 3, c. 143, s. 1, ante, note (h), and not having had any punishment expressly provided for them, and the benefit of clergy being abolished by the 7 & 8 Geo. 4, c. 28, seem now to be punishaV)le in the manner pointed out in note (21), ante, p. 448. {dd} Jlr. Lonsdale observes (St. Cr. L. T6), that the 52 Geo. 3, c. 143, s. 6, appears to be superseded by the 1 Wm. 4, c. 66, s. 10, (post, next chaper), as far as relates to the forging of any receipt. With respect to other instruments above mentioned, the forgery of them not having been made punishable with death by the 1 Wm. 4, c. 66, although previously a ca^iital crime, and that act not having repealed the 52 Geo. 3, c. 143, s. 6, persons convicted of such offences are liable [under the 1 Wm. 4, c. 66, ss. 1 and 26, and the 1 Vict. c. 90, s. 5,] to the punishment pointed out in note (A), ante, p. 415. As to the punishment of prin- cipxhi in the second de^reo and accessories, sec the 1 AVm. 4, c. 66, s. 25, ante, p. 410. (e) See ante, p. 450, note (i). CHAP. XXXVIII.] OF TUE FORGERY OF OFFICIAL PAPERS, ETC. 4(31 the substance of the paper used by the commissioners of excise for per- mits, or any part of such words, figures, marks, or devices, or any of them, intended to imitate and pass fur the same, shall be visible; and every person, except as before excepted, who shall knowingly have in his, her, or their custody or possession, without lawful excuse (the proof whereof shall lie on the person accused), any paper whatever in the sub- stance of which the words < excise office,' or any other words, figures, marks, or devices peculiar to and appearing in the substance of paper used by the commissioners of excise for permits, or any part of such words, figures, marks, or devices, or of any of them intended to imitate and pass for the same shall be visible; and every person, except as before excepted, who shall by any art, mystery, or ^contrivance, cause or procure, or aid *462 or assist in causing or procuring the words <■ excise office,' or any other words, figures, marks, or devices peculiar to and appearing in the sub- stance of the paper used by the commissioners of excise for permits, or any or part of such words, figures, marks, or devices, or any of them in- tended to imitate and pass for the same, to appear visible in the substance of any paper whatever; and every person not authorized or appointed as aforesaid, who shall engrave, cast, cut or make, or cause or procure to be engraved, cast, cut, or made, or aid or assist in engraving, casting, cutting, or making any plate, type, or other thing in imitation of or to resemble any plate or type, made or used by the dii-ection of the com- missioners of excise, for the purpose of marking or printing the paper to be used for permits ; and every person, except as before excepted who shall knowingly have in his or her custody or possession, without law- ful excuse, proof whereof shall lie on the person accused, any such plate or type; shall for every such offence be adjudged a felon, and hhall be transported for the term of seven years, or shall be imprisoned, at the discretion of the court before whom such person shall be tried for any period not less than two years. "(e) By sec. 4, " every person who shall counterfeit or forge, or cause or 2 Wm. 4, c. procure to be counterfeited or forged, or assist in counterfeiting or p^'^^'j^j^ ^^ forging any permit, or any part of any permit, or shall counterfeit any countedeit- imprcssion, stamp, or mark, figure or device provided or appointed, or ^"K '^^*"°'^ to be provided or appointed by the commissioners of excise to be put on .tc. such permit or shall utter, give, or make use of any counterfeited or forged permit, knowing the same or any part thereof to be eouuterfcitod or forged, or shall utter, give, or make use of any permit with any such counterfeited impression, stamp or mark, figure or device, knowing the same to be counterfeited ; or if any person or persons shall knowingly or wilfully accept or receive any counterfeited or forged permit, or any permit with any such counterfeited impression, stamp, or mark, figure or device thereon, knowing the same to be counterfeited, shall for every such offence be adjudged guilty of a misdemeanor, and shall be tran- sported for the term of seven years, or fined and imprisoned at the dis- cretion of the court." S c 15 Of- By sec. 15, "every officer of excise who shall deliver out, or suffer ficers deliv- to be delivered out, any papor prepared or provided, or appointed by ^""S o"'' the commissioners of excise to be used for permits in blank, or before ,nijg. (e) This statute contains no provisions as to principals in the second decree or acces- sories; the principals in the second degree, therelbre, are punishable according to the com- mon law rule, in the same manner as principals in the first degree, an-d tlic nrccssories are punishable in the manner stated in note (m), anXc^ p. 448, as for a felony for which no pun- ishmout has been expressly provided. 462 OF THE FORGERY OF OFFICIAL PAPERS, ETC [BOOK IV. sucli permit shall be filled up and issued agreeable to and in conformity with a request note ; and every officer who shall knowingly give or grant any permit to any person not entitled to receive the same, or shall knowingly give or grant any false or untrue permit, or shall make any false or untrue entry in the counterpart of any permit given or granted by him, or shall knowingly or willingly receive or take any goods or commodities into the stock of any person or persons brought in with any false or untrue or fraudulent permit, or shall knowingly or willingly *46-3 grant *any permit for the removal of any goods or commodities out of or from the stock of any person or persons who shall have received or retained such goods or commodities, or any of them, under or by virtue or pretext of any false, untrue, forged or fraudulent permit, or shall knowingly or willingly give any false credit in the stock of any person or persons beyond the credit to which such stock is justly and truly entitled, so as to enable such person or persons falsely and fraudulently to obtain a permit or permits : or if any such officer shall knowingly or willingly suffer the same to be done directly or indirectly ; every officer so oifending in any of the cases aforesaid, shall be guilty of a mis- demeanor, and on conviction shall suffer such punishment by fine and imprisonment, or fine or imprisonment as the court shall award; and every officer so convicted shall from thenceforth be incapable of holding any office or place in or relating to any of the revenues of the United Kingdom." Forging The 52 Gco. 3, c. 143, s. 10, enacts, " that if any person shall, with ben'tures o ^'^*^^'^*' ^'^ defraud his majesty, falsely make, forge, counterfeit, or alter, or certificates cause or procure to be falsely made, forged, counterfeited, or altered, or for the re- -^villingly assist in falsely making, foi'ging, counterfeiting or altering any nej from clehenture, or any certificate for the payment or return of any money, duties of or aQy part of any such debenture or certificate, or any signature thereon, customs or... ^ J a J excise 52 ^^ ''•^J case in which such debenture or certificate is by any act or acts ire^o. 3, c. of parliament relating to the duties of customs(e) or excise required or ^' ' ' directed to be given or granted; or shall wilfully, with such intent as aforesaid, utter, publish, or make use of any such debenture or certi- ficate, or part thereof, so being wholly or in part falsely made, forged, counterfeited or altered;" every person so offending shall be adjudged guilty of felony, without benefit of clergy. (/j Forging ^jijg 4(3 Qgo. 3, c. 75, s. 8, enacts, "that if any person or persons shall name or knowingly and wilfully forge or counterfeit, or cause or procure to be (e) Repealed as to the customs by the 3 & 4 Wm. 4, c. 50, s. 3. (/) Mr. Lousdale (St. Cr. L. 79,) observes that the certificates mentioned in the above enactment, so for as rehites to the payment of money, appear to be warrants or orders for the payment of money within the meaning of the 4th sec. of 1 "Wm. 4, c. 66, and as such the forgery thereof (the same having been a capital ofience at the time of the passing of the Li.st mentioned act) is now punishable under the 1 Vict. c. 84, ss. 2, 3, {ante, p. 413). Would not the certificates for the return of money intended by the same enactment be also con- strued to be warrants or orders for the payment of money ? In which case the forgery there- of is punishable under the 1 Vict. c. 84, ss. 2, 3. As regards the party beneficially interest- ed under such a certificate, it would be a warrant for the return of money ; but as regards the person to whom it was directed, and who had to make the return, it would be an order for the payment of the money. At all events the forgery of such certificates, as well as the debenture mentioned above, is punishable under the 1 Wm. 4, c. 66, ss. 1 and 26, and the 1 Vict. c. 90, s. 5, as having been an off"ence punishable with death at the time of the passing of the 1 Wm. 4, c. 66, and not made so punishable by that act. It is nowise material, how- ever, as regards the punishment of forging such last mentioned certificate, whether that of- fence be punishable under the former or the latter of the above statutes, the penalty being the same in both cases. As to the punishment of principals in the second degree and ac- cessories, see the 1 Wm. 4, c. 66, s. 25, ante, p. 410. CHAP. XXXVIII.] OF THE FORGERY OF OFFICIAL PAPERS. 463 forged or counterfeited, or knowingly and wilfully act or assist in forg- jiandwrit- ing or counterfeiting the name or handwriting of the recelver-ycneral (^Z* receiver-'' the excise for the time being, or of the comptroller of the cash of the ex- '5. «• 3. utter, dispose of, or put off, knowing the same to be forged or altered, ExcLulfuer any Exchequer bill, or Exchequer debenture, or any imlorsemeut *on bills, do- or assignment of any Exchequer bill or Exchequer debenture, with in- j^*^!''"'^^^' tent, in any of the cases aforesaid, to defraud any person whatsoever, *aq(\ every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a fclou."(?() The 5 & G Vict. c. 66, entitled, "An act for the further regulatings i C Vid. the preparation and issue of Exchequer bills," by sec. 9 enacts, " that ^- *"'''• ^- '•^• every person who shall make, or cause or procure to be made, or shall turing or aid or assist in making, or shall knowingly have in his possession, not "''•"g pniior being legally authorized by the commissioners of excise or commission- J|i^/i*,\^[,(j. crs of her majesty's treasury, and without lawful excuse, (the proof cd to imi- whereof shall lie on the person accused,) any instrument having therein ^^^^f^^^'' any words, letters, figures, marks, lines, or devices, peculiar to and Exchequer appearing in the substance of any paper provided, or to be provided or ^'''*' used for Exchequer bills, or any machinery for working any threads into the substance of any paper, or any such thread, and intended to imitate such words, letters, figures, marks, lines, threads, or devices, or any plate peculiarly employed for printing Exchequer bills, or any die peculiarly used for preparing any such plate, or for scaling such Exche- quer bills, or any plate, or die intended to imitate such plates or dies respectively ; and also every person, except as before excepted, who shall make, or cause or procure to be made, or aid or assist in making any paper, in the substance of which shall appear any words, letters, figures, marks^ lines, threads, or other devices peculiar to and appearing in the substance of any paper provided, or to be provided, or used for Exchequer bills, or any part of such words, letters, figures, marks, lines, threads, or other devices, and intended to imitate the same; and also every person, except as before excepted, who shall knowingly have in his possession without lawful excuse (the proof whereof shall lie on the person accused) any paper whatever, in the substance whereof shall ap- pear any such words, letters, figures, marks, lines, threads, or devices as aforesaid, or any part of such words, letters, figures, marks, lines, threads, or devices, and intended to imitate the same j and also every person, except as before excepted, who shall cause, or assist in causing, any such words, letters, figures, marks, lines, threads, or devices as aforesaid, or any part of such words, letters, figures, marks, lines, threads, or other devices, and intended to imitate the same, to appear in the substance of any paper whatever, or who shall take or assist in taking any impression of dliy such plate or die as aforesaid, shall be guilty of felony."(o) By sec. 10, "every person not lawfully authorized, and without law- Sec. 10. ful excuse, (the proof whereof shall lie on the person accused,) who ?'*^"""*"°' shall purchase, or receive, or take, and have in his custody, any paper bavin;,' in manufactured and provided by or under the directions of the commis-T'^s^fstfiou sioners ot excise, or commissioners oi her majesty s treasur}', for thcusod as («) See the whole section, supra, p. 42 1. The present punislimcnt is regulated bj- the 1 Vict. c. 84, ss. 2 and 3, ante, p. 413. As to principals in the second degree and accessories see sec. 25 of 1 Wm. 4, c. 6G, ante, p. 410. (o) As this is a felony for which no punishment is expressly provided, it is punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 5,) in the manner pointed out in note (»/), ante, p. 448. The principals in the second dcprcc and accessorie.';, are in this instance punishable in the same manner as the principals in the first degree. 466 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. Exchequer purpose of being used as Exchequer bills, before such paper shall have ^'^^^' bceu duly stamped, signed, and issued for public use, or any such plate *467 or die as aforesaid, shall for every such offence be *guilty of a misde- meanor, and being convicted thereof shall, at the discretion of the court before whom he shall be tried, be imprisoned for any period not more than three years, nor less than six calendar months." Forging The statutes authorizing issues of Exchequer bills frequently contain vertificatea (.jausc relatins; to the foro-inj!!;, &c., of the certificates or receipts therein aiicl receipts a a o' i r relating to mentioned. Thus by the 51 Geo. 3, c. 15, s. 71, "If any person or Exchequer persons shall forga counterfeit, or alter, or cause or procure to be forged, Geo.' 3, c. counterfeited, or altered, or knowingly or willingly act or assist in the 15, 3. 71. forging, counterfeiting, or altering, any certificate or certificates of the said commissioners by this act appointed as aforesaid, or any of them, or any receipt or receipts to be given by the cashier or cashiers of the Bank of England, in pursuance of this act; or shall wilfully deliver to the auditor of the receipt of his majesty's exchequer for the time being, or any officer for the time being, or to any officer appointed by him, or to the said commissioners by this act appointed, or any of them, or to 'any officer or officers appointed by them, or any of them, in the execu- tion of the powers of this act, or shall utter any such forged, counter- feited, or altered certificate or certificates, receipt or receipts, knowing the same to be forged, counterfeited, or altered, with intent to defraud his majesty, his heirs, &c., or any body or bodies politic or corporate, or any person whomsoever;" in every such case, every person so offending shall be adjudged guilty of felony, without benefit of clergy. A clause nearly similar is contained in the 3 Geo. 4, c. 86, s. 54,(p) the 2 & 3 Vict. c. 97, and the 5 Vict. c. 8.(j) Forging The statutes also occasionally passed in order to grant annuities for certificates, ^j^^ discharge of certain Kvchcqiwr hills, made the forging of the certi- ing'to the ficates, &c., therein mentioned, capital offences : as the 50 Geo. 3, c. 23, Jkcharge g^ n . 53 (^eo. 3, c. 41, s. 26, and the 58 Geo. 3, c. 23, s. 38. of Exche- . ... quer bills. The 1 Vict. c. 36, s. 34, " in order to prevent the imitation and for- 1 Vict. c. gery of lawful fx-anks," enacts, " That every person who shall forge or .^0, s. 34. counterfeit the handwriiino- of another person in the superscription of a Forfin'' or 1 x r altering post letter, or who shall alter or change upon a post letter the super- tVanks. scription thereof, or who shall write or send by the post, or cause to be written or sent by the post, a letter the superscription whereof in whole or in part shall be forged or counterfeited, or altered, knowing the same to be forged, counterfeited, or altered, with intent in either of those eases to avoid the payment of the duty of postage, shall in England and Ire- land, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be transported beyond the seas for the term of seven years. "(?•) [p) Mr. Lonsdale (St. Or. L. 87,) observes that the 3 Geo. 4, c. 86, appears to be superseded by the 1 "Win. 4, c. 66, s. 10, so far as relates to the forging the receipts therein mentioned. With respect to the other offences therein described, the 1 "Win. 4. c. 66, not having made them punishable with death, although previously so punishable, aud the 3 Geo. 4, c. 86, not hav- ing been repealed by that act, persons convicted thereof are liable, under the 1 "W"m. 4, c. 66, ss. 1 and 26, and the 1 Vict. c. 90, s. 5, to the punishment stated in note [h], ante, p. 415. {q) Ante, p. 420. (r) See ante, p. 205, et seq., for the general provisions of this act. By the 2 & 3 Vict. c. 52, s. 3, the Lords of the Treasury were empowered to suspend wholly or in part any parlia- mentary or official privilege of sending and receiving letters by the post free of postage, or any other franking privilege of any description whatsoever; and the 3 & 4 Vict. c. 96, recit- ing this act, provides that all letters shall be subject to the regulations and rates in that act contained. CHAP. XXXYIII.] SECURITIES AND DOCUMENTS. . *468 *The forging the name or handwriting of the receiver-general of the post-ojjicc, or persons employed by him, to any draft, instrument, &c., has boon made the subject of especial legislative enactment. The 1 Vict. e. 36, s. 33, enacts, <' that every person who shall know-l Vict. c. ingly and wilfully furge or counterfeit, or cause or procure to be forged •^f'^^^^^^^j^g or counterfeited, the name or handwriting of the receiver-general for the handwrit- time being of the general post-oflQce in England or Ireland, or of any '°S ?*" ^''*' person employed by or under him, to any draft, instrument, or writing jreiK-ral of whatsoever, for or in order to the receiving or obtaining of any money t'"^ P<^:°t- in the hands or custody of the governor and company of the liank of £,|^"jj'°j England or Ireland, on account of the receiver-general of the post-office, or In-lund, or shall forge or alter, or shall offer, utter, dispose of, or put off, know- *"' '^"^' ing the same to be forged or altered, any draft, warrant, or order of such receiver-general, or of any person employed by or under him, for money or for payment of money, with intent to defraud any person whomso- ever, shall be guilty of felony, and being convicted thereof shall be transported beyond the seas for life."(s) The 3 & 4 Vict. c. 96, "An act for the regulation of the duties of 3 & 4 Vict. c 9G s 2*^ postage," by sec. 22 enacts, " that if any person shall forge or counter- Gorging or feit, or cause or procure to be forged or counterfeited, any die, plate, or fraudulent - other instrument, or any part of any die, plate, or other instrument, 'X^^s^ol- which hath been, or shall, or may be provided, made, or used by or dies used under the direction of the commissioners of stamps and taxes, or by or f°'" ™"'"'^- 111 1 • 1 • '°n post- under the direction of any other person or persons legally authorized in age. that behalf, for the purpose of expressing or denoting any of the rates or duties which are or shall bo directed to be charged under or by virtue of the authority contained in the said recited act of the last session of parliament,(<) or under or by virtue of this act; or if any person shall forge, counterfeit, or imitate, or cause or procure to be forged, counter- feited, or imitated, the stamp, mark, or impression, or any part of the stamp, mark, or impression, of any such die, plate, or other instrument, which hath been or shall or may be so provided, made, or used as afore- said, upon any paper, or other substance or material whatever ; or if any person shall knowingly and without lawful excuse, (the proof whereof shall lie on the person accused) have in his possession any false, forged, or counterfeit die, plate, or other instrument, or part of any such die, plate, or other instrument, resembling or intended to resemble, either wholly or in part, any die, plate, or other instrument, which hath been, or shall, or may be so provided, made, or used as aforesaid, or if any person shall stamp or mark, or cause or procure to be stamped or marked, any paper, or other substance or material whatsoever, with my such false, forged, or counterfeit die, plate, or other instrument, or part of any such die, plate, or other instrument as aforesaid ; or if any person shall use, utter, sell, or expose to sale, or shall cause or procure to be used, uttered, sold, or exposed to sale, or shall knowingly and without lawful excuse, (the proof whereof shall lie on the person ac- cused,) have in his possession any paper, or other substance or material, having thereon the impression or any part of the impression, *of any *4G9 such false, forged, or counterfeit die, plate, or other instrument, or part of any such die, plate, or other instrument as aforesaid, or having thereon any false, forged, or counterfeit stamp or impression, resembling or representing, either wholly or in part, or inleuded or liable to pass (s) See last note (0 2 k2 Vict. c. 52, s. 3. 469 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. or be mistaken for the stamp, mark, or impression of any such die, plate, or other instrument, which hath been or shall or may be so pro- vided, made, or used as aforesaid, knowing such false, forged, or coun- terfeit stamp, mark or impression to be false, forged, or counterfeit; or if any person shall, with intent to defraud her majesty, her heirs, or successors, privately or fraudulently use, or cause or procure to be pri- vately or fraudulently used, any die, plate, or other instrument, so pro- vided, made, or used, or hereafter to be provided, made, or used as aforesaid, or shall with such intent privately or fraudulently stamp or mark, or cause or procure to be stamped or marked, any paper or other substance or material whatsoever, with any such die, plate, or other in- strument as last aforesaid ; or if any person shall knowingly and with- out lawful excuse, (the proof whereof shall lie on the person accused) have in his possession any paper or other substance or material so pri- vately or fraudulently stamped or marked as aforesaid; then and in every such case every person so offending, and every person knowingly and wilfully aiding, abetting, or assisting any person in committing any such offence, and being thereof lawfully convicted, shall be adjudged guilty of felony, and shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, nor less than two years, as the court shall award." (A 3 & 4 Vict. By sec. 29, " if any person shall make, or cause or procure to be c. 96, s. 29. jjjj^jjg Q^, shall aid or assist in the making, or shall knowingly have in Manufac- , . ' , . i • i ^i i • , i ? turing or his custody Or posscssion, not bemg legally authorized by the commis- using pa- sioners of excise, or other person or persons appointed by the commis- lar to that sioners of her majesty's treasury, and without lawful excuse, (the proof used for whcreof shall lie on the person accused,) any mould or frame, or other coYerf.^ instrument, having therein any words, *letters, figures, marks, lines, *^^Q threads, or devices peculiar to and appearing in the substance of any paper heretofore or hereafter to be provided or used for postage covers, envelopes, or stamps, or any machinery, or parts of machinery, for working any threads into the substance of any paper or any such thread, and intended to imitate or pass for such words, letters, figures, marks, (t) By sec. 23, " if any person shcall fraudulently get off or remore, or cause or procure to be gotten ofi" or removed from any letter or cover, or any paper or other substance or material, the stamp or impression of any die, plate, or other instrument so provided, made, or used, or hereafter to be provided, made, or used as aforesaid, Tvith intent to use, join, fix, or place such stamp or impression for, with, or upon any other letter, cover, paper, or other substance or material : or if any person shall fraudulently use, join, fix, or place, for, with, or upon any letter or cover, or any paper or other substance or material, any such stamp or impression as aforesaid which shall have been gotten off or removed from any other letter, cover, paper, or other substance or material ; or if any person shall fraudulently erase, cut, scrape, discharge, or get out of or from, or shall cause or procure to be so erased, cut, scraped, discharged, or gotten out of or from any letter or cover, or any paper or other sub- stance or material, any name, date, or other matter or thing thereon written, printed, or expressed, with intent to use any stamp or make then impressed or being upon such letter or cover, paper, or other substance or material, or that the same may be used for the pur- pose of defrauding her majesty, her heirs or successors, of any of the rates or duties afore- said ; or if any person shall make, do, or practice, or be concerned in any other fraudulent act, contrivance, or device whatever, not specially provided for by this or some other act of parliament, with intent or design to defraud her majesty, her heirs or successors, of any of the rates or duties aforesaid ; every person so offending in any of the several cases in this clause mentioned shall forfeit and pay to her majesty, or her heirs and successors, the sum of twenty pounds, to be recovered with full costs of suit, and all expenses attending the same." The 3 & 4 Vict. c. 96, contains no provision for the punishment of accessories after the fact, they are therefore punishable (under the 1 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 3,) in the manner stated in note (u), ante, p. 448. CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 470 lines, threads, or devices : or if any person, except as before excepted, shall make, or cause or procure to be made, or aid or assist in the making of any paper, in the substance of which shall be worked or shall appear visible any words, letters, figures, marks, lines, threads, or other devices peculiar to and worked into or appearing visible in the substance of any paper heretofore or hereafter to be provided or used for postage covers, envelopes, or stamps, or any part of such words, letters, figures, marks, lines, threads, or other devices, and intended to imitate or pass for the same ; or if any person, except as before excepted, shall know- ingly have in his custody or possession, without lawful excuse (the proof whereof shall lie on the person accused) any paper whatever, in the substance whereof shall be worked, or appear visible, any such words, letters, figures, marks, lines, threads, or devices as aforesaid, or any part of such words, letters, figures, marks, lines, threads, or devices, and in- tended to imitate or pass for the same ; or if any person, except as afore- said, shall, by any art, mystery, or contrivance, cause or procure, or aid or assist in causing or procuring, any such words, letters, figures, marks, lines, threads, or devices as aforesaid, or any part of such woi'ds, letters, figures, marks, lines, threads, or other devices, and intended to imitate or pass for the same, to appear worked into or visible in the substance of any paper whatever, then and in every such case every person so offending shall for every such oflFeace be adjudged a felon, and shall be transported for the term of seven years, or shall be imprisoned at the discretion of the court before whom such person shall be tried, for any period not less than two years." («) By sec. 30, " if any person not lawfully authorized, and without law- 3^4 vict. ful excuse, fthc proof whereof shall lie on the person accused) shall pur- <"• ^''^- ^- ^O- 1 ^ • ^ 1 1 • u- i. 1 • Receiving chase or receive, or take or have in his custody or po.ssession, any paper pj^p^r for manufiictured and provided by or under the directions of the commis- postage sioners of excise, or other person or persons appointed to provide the ^"^^^^ ^ j^ same by the commissioners of her majesty's treasury, for the purpose ofstauipeJ. being used for postage covers, envelopes, or stamps, and for receiving the impression of the dies, plates, or other instruments, provided, made, or used under the directions of the commissioners of stamps and taxes, or other person or persons legally authorized in that behalf, before such paper shall have been duly stamped with such impression and issued for public use, every such person shall for such ofi"ence be guilty of a misdemeanor, and being convicted thereof shall, at the discretion of the court before whom such person shall be tried, be imprisoned for any period not more than three years, nor less than six calendar months. 'Vi') *The making or giving a false certificate, &c. upon the sale or dis- *471 posal of naval stores, is subjected to a pecuniary fine of 200^. by the 39 & 40 Geo. 3, c. 89, s. 26. (m) See last note, ad finum. {v) Sec. 66, "for the more cfTectual prosecution of offences committed againPt tlio post- office,'' enacts, " that in any indictment on criminal letters for any offence committed upon or in respect of any property which may be laid in or stated to belong to the postmaster general, it shall be sufficient to state any such propert\- to belong to and to lay it in "her majesty's postmaster general," and it shall not he necessary to specify the name or addition of any sudi postm:ister general ; and that whenever, in any indictment or criminal letters for any offence committed against the post-office acts, it shall be necessary to mention for any purpose whatever, " her majesty's postmaster general," it .shall be sufficient to describe such postmaster general as "her majesty's postmaster general," without any further or other name, addition, or description whatsoever." 471 OF TUB FORGERY OF OFFICIAL PAPERS, [jBOOK IV. Forging, The 53 Geo. 3, c. 151, s. 12, relates to the forging, &c., the name or namo or hand of the re/jistrar of the court of admiralty, or of appeals for prizes, baud of tho or of the cashiers of the bank, &c. to any certificate or writing, for the tAe'coiTri ^i/Pui"POse of obtaining any of the money or effects of the suitors in those admirality, courts, and makes the oflPenders guilty of felony. (io) **'"• The 1 Geo. 4, c. 35, s. 27, enacts, that ^' if any person shall forge, A ^th°' ^^'^ *^® name of handwriting of any accountant-general of the Court of haudwrit- Exchequer or any Lord Chief Baron, or any of the barons of the said ingoftho court, or of the clerk of the reports, or of any of the cashiers of the account- -n ^ c -i-\ ^ ^ f «■ f 111 1- • c ant-gene- -DanK 01 Jiiughind, or or any ollicer oi any other body politic, &c. to any ral, &c., of certificate, report, entry, indorsement, transfer, declaration of trust, note, the court of,. r ^^ -^ • ^ • . ^ ■.- i ^ x- exchequer direction, authority, receipt, instrument, or writing whatsoever, tor or to any cor- in order to the receiving or obtaining any money or efi"ects of any of the tcfrToeivt°'' ^'^^^^^'^ of that court, or shall forge, &e., any certificate, &c., or shall suitors' utter, &c., or shall claim or demand payment of any sum or sums therein effects in mentioned with intent to defraud, &c., such offender shall be guilty of tho bank. . , • i i ^ n i .,/ o j lelony without benent of clergy, (x) Forging The 4 & 5 Wm. 4, c. 15, entitled, " An act to regulate the ofiice of ^h"*^"'!' ^^^ receipt of his majesty's exchequer at Westminster," by sec. 28 madeunder enacts, " that if any person shall forge, counterfeit, or alter, or cause or the 4 A 5 procure to be forged, counterfeited, or altered, or knowingly and will- iS^reiatino-^'^D^y '^^^j ^'^^} '^^' '^^^ist in forging, counterfeiting, or altering, any war- to the ex- rant, order for payment, or other document whatsoever, by this act chequer, directed or authorized to be issued or made, or shall utter or publish as true, or knowingly or willingly act, aid, or assist in uttering or pub- lishing as true, knowing the same to be forged, counterfeited, or altered, any such warrant, order for payment, or other document whatsoever, with intent to defraud his majesty, the governor and company of the Bank of England, or any other person or persons so offending shall be deemed guilty of felony, and shall upon conviction be transported be- yond the seas for the term of his natural life."(y) *472 The 2 & 3 Wm. 4, c. 125, s. 64, entitled ^'An act for enabling his Counter- majesty to direct the issue of Exchequer bills to a limited *amouut, for tificares of ^^^ purpose and in the manner therein mentioned, and for giving relief commis- to Trinidad, British Guiana, and St. Lucie," enacts, '^ that if any per- &c°under ^°^ ^^ persons shall forge, counterfeit, or alter, or cause or procure to 2 & 3 Wm. be forged, counterfeited, or altered, or knowingly or wilfully act or 4, c. 1-5, f^ggjgj; jjj tijg forging, counterfeiting, or altering any certificate or certi- relating to . , 9, ° . . °' ° . exchequer ficates of the said commissioners, by this act appointed as aforesaid, or bills for re- ^ny of them, or any receipt or receipts to be given by the cashier or Trinidad, cashiers of the governor and company of the Bank of England in pur- (w) This statute provides no express punishment for this offence, consequently principals in the first degree are punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict, c. 90, s. 5,) in the manner stated in note («), ante, p. 448, and the principals in the second degree and accessories are puuishable in the same manner. (x) Mr. Lonsdale, (St. Cr. L. p. 86,) observes that the language in which the instruments mentioned in this enactment are described appears to be sufficiently comprehensive to include warrants or orders for the payment of money within the 1 Wm. 4, c. 66, s. 4, and to thtt extent the forgery of such instruments is punishable under the 1 Vict. c. 84, ss. 2 and 3, (ante, p. 413). With respect to the forgery of the above mentioned instruments generally the 1 Wm. 4, c. 66, not having made such offences punishable with death, although previ- ously so punishable, and the 1 Geo. 4, c. 35, s. 37, not having been repealed by that act, persons convicted thereof are liable [under the 1 Wm. 4, c. 66, ss. 1 and 26, and the 1 Vict, c. 90, s. 5,] to the punishment mentioned in note (h), ante, p. 415. [y) This act contains no provisions for the punishment of principals in the second degree and accessories, they are, therefore, punishable in the manner stated in note («), ante, p. 448. CHAP. XXXVIII.] SECUllITIES AND DOCUMENTS. 47 li suance of this act, or shall wilfully deliver to the auditor of the receipt British of his majesty's exchequer for the time being, or to any ofTicer appointed ^^'^j ^^^' by him, or to the said commissioners by this act appointed, or any of Lucio. them, or to any officer or officers appointed by them or any of them, in the execution of the powers of this act, or shall utter any such forged, counterfeited, or altered certificate or certificates, receipt or receipts, knowing the same to be forged, counterfeited, or altered, with intent to defraud his majesty, his heirs, or successors, or any bod}' or bodies politic or corporate, or any person whomsoever, then and in every such case, all and every person or persons so ofFeiiding, and being thereof lawfully convicted, shall be adjudged guilty of felony, and shall sufler death as in cases of felony. "(^;;) The 5 & G Wm. 4, c. 51, entitled "An act for granting relief to the 3 i G Win. Island of Dominica," and to amend the 2 & 8 Wm. 4, c. 125, by sec. 5, 1; *;• ''V- enacts that " all and every the several chiuses, powers, provisions, en- tiio 2 / same to be forged, were made capital offences. (a) ', „cc' 46 *The 54 Geo. 3, c. 151, s. IG, makes the forging, Sec. the name or hand gc... ;?. e. of the a(jrnt general for volunteers and local militia an offence liable "t^* *^- *'• to capital punishment. It enacts, "that if any person or persons shall 47o knowingly add wilfully forge or counterfeit, or cause or procure to be ^"'^^j^l;'''' forged or counterfeited, or knowingly or wilfully act or assist in forging nmno or or counterfeiting the name or hand of the agent general for the time''-'^"*' "*^""' ^ ■ (Hunt ncnf:- being, or his deputy, or the person or persons duly authorized as afore- ,.[,/ f^'r t»- (z) The I Vict, c. 84, recites tlii.s section, ami tlie j)rcscnt puiiishnicnt for olTonrcs con- tained in it is provided by .see. 1 iind 3 of tiiat act. See antr, \). 41.'!. Ncitlicr tlie 2 & .i Wm. 4, c. 12.">, nor the 1 Vict. c. 84, contiiin any provi.-ll01*S *__— ^ ' The 2 Wm. 4, c. 53, entitled "An act for consolidating and amend- 53 s. 49.' ifig tlie l^ws relating to the payment of army prize-money," by sec. 49, Forging, enacts, amongst other things, that " if any person shall forge, or coun- uaines of terfeit, or alter, or cause, or procure to be forged or counterfeited, or officers, &c., altered, or knowingly and willingly act or aid, or assist in forging or entitled to counterfeiting, or altering the name or handwriting of any officer, non- ney, &o., or commissioned officer, soldier, or other person entitled or supposed to be °^°®°®''!°^ entitled to any prize-money, grant, bounty-money, share, or other allow- tal at Choi- ance of money due or payable, or supposed to be due or payable for or sea, or let- qjj account of any service performed or supposed to have been per- torney, " formed by any officer, non-commissioned officer, soldier, or other person wills, &c. -vyho shall have really served, or be supposed to have served, in his majesty's army or other military service, or the name or handwriting of any officer or under officer, clerk, or servant of or in the employ of the commissioners of the said Koyal Hospital at Chelsea, or the name or *474 handwriting of *any officer or person in any way concerned in the pay- ing or the ordering, directing, or causing the payment of any such prize- money, grant, bounty-money, share, or other allowance of money due or payable, or supposed to be due or payable, as aforesaid, or shall falsely make, forge, counterfeit, or alter, or willingly act, aid, or assist in the fiilse making, forging, counterfeiting, procuring, or altering any letter of attorney, bill, ticket, order, certificate, voucher, receipt, will, or any other power, instrument, warrant, authority, document, or wri- ting whatsoever, relating to or in anywise concerning the payment of or the obtaining or claiming any such prize-money, grant, bounty- money, share, or other allowance of money due or payable, or supposed (6) The instraments enumerated in this enactment appear to be contained in the 1 Wra. 4, c. 66, s. 4, and the forgery of them is now jjunishable under the 1 Vict. c. 84, ss. 2 and 3, ri/ile, p. 413. (c) Repealed, T Geo. 4, c. 16. (d) 49 Geo. 3, c. 123, s. 23. (e) Amongst others, the 31 Geo. 2, c. 10, s. 24. 9 Geo. 3, c. 30, s. 9. 32 Geo. 3, c. 33, s. 23. 32 Geo. 33, c. 34, s. 29. 32 Geo. 3, c. 67, s. 12. 35 Geo. 3, c. 94, s. 34. 35 Geo. 3, c. 28, s. 30. 45 Geo. 3, c. 72, s. 121. 49 Geo. 3, c. 123, ss. 13, 28, 36. 49 Geo. 3, c. 108, s. 10. 54 Geo. 3, c. 93, s. 89. 54 Geo. 3, c. 3, c. 110, s. 6. 55 Geo. 3. c. 60, s. 32. CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 474 to be due or payable as aforesaid, in order to receive, obtain, or claim, any such prize-money, grant, bounty-money, share, or other allowance of money, due or payable, or supposed to be duo or payable as afore- said, or shall utter or publish as true, or knowingly and willingly act or aid, or assist in uttering or publishing as true, any falsoly made, or forged, or counterfeited, or altered letter of attorney, bill, ticket, order, certificate, voucher, receipt, will, or any other power, instrument, war- rant, authority, document, or writing whatsoever, with intention to re- ceive, obtain, or claim, to enable any other person to receive, obtain, or claim from the said commissioners of the said Royal Hospital, or from any officer, under officer, clerk, or servant of the said commissioners, or from any person whatsoever authorized, or supposed to be authorized, to pay the same, the payment of such prize-money, grant, bounty- money, share, or other allowance of money due or payable, or supposed to be due or payable as aforesaid, with an intention to defraud any per- son or persons whatsoever, or any body or bodies politic or corporate whatsoever, or shall knowingly take a false oath in order to abtain let- ters of administration, or the probate of any will, in order to receive, obtain, or claim, or to enable any other person to receive, obtain, or claim any prize-money, grant, bounty-money, share, or other allowance of money due or payable, or supposed to be due or payable, for or on account or in respect of the service of any officer, non-commissioned offi- cer, soldier, or other persons as aforesaid, who shall have really served, or be supposed to have served, in his majesty's army or other military service, or shall demand or receive any prize-money, grant, bounty- money, share, or other allowance of money due or payable, or supposed to be due or payable as aforesaid, upon letters of administration, or a probate of a will, knowing the will on which such probate shall have been obtained to be false, forged, or counterfeited, or knowing such letters of administration, or the probate of such will as last aforesaid, to have been obtained by means of any such false oath, with intention to defraud any person or persons whatsoever, or any body or bodies politic or corporate whatsoever, all and every person so offending be- ing thereof lawfully convicted, shall be and are and is hereby de- clared and adjudged to be guilty of felony, and shall be transported beyond the seas for life, or for any term not less than seven 3"ears, as the court before whom such person or persons shall be convicted shall adjudge.(/) *The 7 Geo. 4, c. 16, entitled " An act to consolidate and amend the *475 several acts relating to the lloyal Hospitals for soldiers at Chelsea and 7 Oco. 4, c. Kilmainham," by sec. 38 enacts, that "if any person shall willingly \'''' ^•.''^• and knowingly personate, or falsely assume the name or character, or chcffca procure any other to personate or falsely assume the name or character pensions, of any officer, non-commissioned officer, soldier, or other person, entitled, ''' or supposed to be entitled to any pension, wages, pay, grant, or other allowance of money, prize-money, or relief, due or payable, or supposed to be due or payable, for or on account of any service done or supposed to be done by any such officer, non-commissioned officer, soldier, or other person as aforesaid, in his majesty's army, or other military ser- vice, or shall personate or falsely assume the name or character of the (/) The 2 Wm. 4, c. 53, contains no express provision for the punishment of accessoriep .after the fuct, consequently they arc punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and P. and the 1 Vict. c. 90, s. 5), in the manner stated m note (m), ante, p. 448. Vol. II.— 31 475 OF THE FORGERY OF OFFICIAL PAPERS, [bOOK IV. executor or administrator, wife, relation, or creditor of any such officer, non-commissioned officer, or soldier, or other person as aforesaid, in order fraudulently to receive any pension, wages, pay, grant, or other allowance of money, prize-money, or relief, due or payable, or supposed to be due or payable, for or on account of any services done or supposed to be done by any such officer, non-commissioned officer, soldier, or other person as aforesaid : or if any person shall forge or counterfeit, or alter, or cause or procure to be forged or counterfeited, or altered, or knowingly and willingly act, aid, or assist in forging, counterfeiting, or altering the name or handwriting of any officer, non-commissioned offi- cer, soldier, or other person, entitled or supposed to be entitled, to any pension, wages, pay, grant, allowance of money, prize-money, or relief, due or payable, or supposed to be due or payable, for or on account of any such service, or supposed service, as aforesaid, or the name or hand- writing of any officer, under officer, clerk, or servant of the said com- missioners of the said hospital at Chelsea, or of any officer or person in any way concerned in the paying or ordering, directing or causing the payment of the said pensions, wages, pay, money, allowance of money, prize-money, or relief, or any of them ; or shall forge, counter- feit or alter, or cause or procure to be forged, counterfeited or altered, or knowingly and willingly act, aid, or assist in forging, counterfeiting, or altering, any letter of attorney, bill, ticket, order, certificate, voucher, receipt, will, or any other power, instrument, warrant, document, or authority whatsoever, relating to or anywise concerning the payment or obtaining, or claiming any pension, wages, pay, grant, allowance of money, prize-money, or relief, for and in order to the receiving, obtain- ing, or claiming any such pension, wages, pay, grant, allowance of money, prize-money, or relief; or shall utter or publish as true, or knowingly and willingly act, aid, or assist in uttering, or publishing as true, knowing the same to be forged, counterfeited, or altered, any such letter of attorney, bill, ticket, order, certificate, voucher, receipt, will, or any other power, instrument, warrant, document, or authority what- soever, with intent to obtain the payment of any such pension, wages, pay, money, or allowance of money, prize-money, or relief, from the said commissioners of the said Hospital at Chelsea, or from any officer, under officer, clerk, or servant of the said commissioners, or from the person authorized, or supposed to be authorized, to pay the same, or with intent to defraud any person whatsoever, or any corporation what- *476 soever; *every person so offending, being thereof lawfully convicted, shall be and is hereby declared and adjudged to be guilty of felony, and shall and may be transported for life, or for such term of years as the court shall adjudge. "(^^ An indict- The first count of an indictment founded upon the 7 Geo. 4, c. 16, s. mentfor gg^ charged that the prisoner feloniously forged <'a certain receipt re- latter of at- lating to and concerning the payment of a certain pension, viz., of 4:1. torney, re- Hg^ 0^(1., Supposed to be payable to one Nicholas Morrill, as an out- pension pensioner of Chelsea Hospital, for a certain time, viz., for ninety-two {^g) Mr. Lonsdale (St. Cr. L. 132,) observes, that the above enactment appears to be su- perseded as far as relates to prize money, by the 2 Wm. 4, c. 53, s. 49, post, p. 4'73. The Y Geo. 4, c. IC, contains no provision for the punishment of accessories after the fact; they, therefore, are punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 5,) in the manner stated in note (m), ante, p. 448. CHAP. XXXVIil.] SECURITIES AND DOCUMENTS. 47t) days, from 1st July, 1838, to 30th Soptember following, both days in- supposed t.. eluded, which said forged receipt is as follows, viz : — unJer^Uie 7 fico. 4, c. " Assignment receipt, 420 ^^l' '"'(^ 84th foot, Nicholas Morrill. 1«. h/. per dirm. not noce»- " SifLi-FiELD." ^"'y ^'"'^ tue pensiuD to whidi " We the undcrsignod churchwarden and overseer of the parish of ^''» <'o<"»- Brightside Brierlow, in the county of York, do hereby acknowledge toia[j.ijshoul.J have received of T. C. Brookbank, Esquire, agent for the out pension- nctually bo crs of Chelsea Hospital, (by the hand of Ur. J. Thompson), the sura of '^*'°^'"^- At. lis. O^f/., being the amount due to the above-named out-pensioner of the said hospital for ninety-two day.s, from 1st July, 1838, to 30th September following, both days included, by virtue of an assignment made by the aforesaid pensioner, conformably to an act of parliament passed in the 59th year of the reign of his majesty King (Jeo. o, en- titled <■ An act to amend the laws for the relief of the poor,' five per cent, being deducted pursuant to the act of parliament, 28 Geo. 2, c. 1. "4/. lis. y^ih "John Wilson, Churchwarden. " AVitness, J. Pringle." " Thomas Gray, Overseer of the Poor." " We the undersigned churchwarden and overseer of the parish afore- said, do hereby certify that the above-named out-ponsioner is alive, and entitled to his pension, being no otherwise provided for by gov- ernment." « Dated this 19th day of October, 1838. "John Wilson, Churchwarden, "80." "TU0MA.S Gray, Overseer of the Poor." For and in order to the receiving the said pension, with intent thereby to obtain the payment of the said pension from the lords and others, commissioners of Chelsea Hospital : against the form," &c. Of the other counts, some charged the forging and others the uttering of the receipt, omitting the certificate, others the forging, and the rest the uttering of the certificate only, omitting the receipt, varying in each class the statement of the intent, but all alleging in the language set out from the first count, that the forged instrument *related to, &c., *477 (fcc, << the payment of a certain pension, (specifying the amount,) sup- posed to be payable to the said Nicholas Morrill as an out-pensioner of the said hospital." And no count alleging such pension to be in fact payable ; or that Nicholas Morrill was an out pensioner. It was moved in arrest of judgment, that in order to constitute an offence under the latter branch of the thirty-eighth section, it was necessary that there should be an actually existing pension at the time of the commission of the act of forging or uttering, and that the indictment should allege the actual existence of such pension, and that it was not suflBcient under that branch of the section to allege (as iu this indictment) that the in- strument forged related to a pension supposed to be payable. The forged instrument in question was proved to have been made and uttered by the prisoner for the purpose of procuring payment of a pension that had ceased to exist by the death of the peniiontr before the period for 477 OF THE FORGERY OF OFFICIAL PAPERS, [bOOK IV. which the receipt was signed ; and therefore as the objection was on^ that afTectcd not only the form of this indictment, but involved the ques- tion of the prisoner's guilt upon this and other similar charges, Erskine? J., reserved the question for the opinion of the judges ; before whom it was contended that the offence as stated in this indictment, was not an offence comprehended in the clause recited, there being no allegation of an actual existing pension payable to some person, but only of a pen- sion supposed to be payable. The latter part of the thirty-eighth sec- tion of the act created no offence, except in respect of a pension actually in existence, and there must be some person in existence to whom it was payable. There were in this branch of the section no such words as " supposed to be due and payable ;" those words were found in the iirst part of the section, and they appeared to have been intentionally omitted in the enactment respecting this offence. But even if the words were in the clause, the allegation would be bad for uncertainty, inas- much as it did not state by whom the pension was supposed to be pay- able ; it might be a supposition in the mind of the prisoner only, and that would not be enough. But the judges present were all of opinion that the conviction was right, (except Littledale, J., and Coleridge, J., who thought otherwise,) and the conviction was affirmed. (/i) Falsely The personating or falsely assuming the name and character of a pen- IngThe^ ' sioner at Greenwich Hospital, and the forging of any documents for the name, Ac, purpose of obtaining the pensions paid at that establishment, have been of a pen- f^om time to time subjected to severe punishments. (i) A general Ureenwieh enactment as to the offence of falsely personating the name or character hospital, or ^f either soldier or sailor, for the purpose of obtaining any pension, prize-money, &c., has been already referred to, and will be mentioned in a subsequent chapter. (/) *478 The 11 Geo. 4, c. '20, entitled ''An act to amend and consolidate the 11 Geo. 4, laws relating to the pay of the royal navy," by sec. 83, enacts, " that bW'ino- ' if ^^y person shall forge, or offer, utter, dispose of, or put off, knowing tickets, the same to be forged, any ticket, pay list, extract from *any ship's tl'inor ^ooks, or any certificate whatever, authorized or required by this act, fler to ob- or any inspector's or other check, or any letter of attorney, assignment, tain pay or power or authority, in order to obtain or to enable any other person to yjrize mo- ^. iip • i i ney in the receive any wages, pay, nalr-pay, prize-money, bounty-money, or other ^^yy- allowance of money due or supposed to be due in respect of the services of any commission, warrant or petty officer, or seamen, or any commis- sion or non-commissioned officer of marines or marine, or any other person, performed or supposed to be performed in the royal navy ; or if any person shall forge, or offer, utter, dispose of, or put oft", any pur- ser's or other certificate to a bill of exchange, or any approval of any such bill, respectively required by this act; or if any person shall forge, or utter, or put off, knowing the same to be forged, any receipt for wages payable under allotment or otherwise in respect of the services (A) Reig. V. Pringle,* 2 Moo. C. C. R. 127. S. C. 9 C. & P. 408. (t) See 3 Geo. 3, c. IG, s. 6. 43 Geo. 3, c. 119, s. 17. 54 Geo. 3, c. 110, s. 6. 58 Geo. 3, c. 64, ss. 4, 6. 59 Geo. 3, c. 56, s. 12, 17 ; and 4 Geo. 4, c. 46, s. 1, which repeals so much of the 3 Geo. 3, c. 16, as excluded benefit of clergy from offenders personating any out-pen- Kioner of Greenwich Hospital, and makes the felony thereby created punishable at the dis- cretion of the court, by transportation for life, or for any term not less than seven years, or by imprisonment and hard labour, not exceeding seven years. (j) Pos/, chap. 40. * Eng. Com. Law Reps, xxxviii. l7l. CHAP. XXXVIII.] SlX'UlllTIES AND DOCUMENTS. 478 of any person on board of any of his majesty's ships, or shall forge the name or handwriting of any officer of the ro3'al navy or royal marines to any ruceipt for half-pay, or arrears of half-pay, or (he name or hand- writing of any widow to any receipt for any pension or arrears of pen- sion, or the name or handwriting of an}^ jjerson to any receipt for an allowance from the comi)assionatc fund of the navy; or shall ofler, ntter, dispose of, or put off any forged receipt for half-pay or arrears of half-pay, or for any widow's pension or arrears of such pension, or for any allowance from the compassionate fund, knowing any such receipt to be forged, with intent in any of the said cases to defraud any person whomsoever, every person so offending shall be deemed guilty of ftdouy, and being convicted thereof, shall be liable, at the discretion of thi; court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, nor less than two years. "(/.•) By sec. 8G, <' if any person shall subscribe any false petition or ap- Sec. 86. plication to the treasurer of his ni:ijesty's navy, or to the paymaster of ^"'^•'',^''"'''- royal marines, falsely and deceitfully representing herself or himself j.j^^iiiiong to therein to be the widow, executor, nearest or one of the nearest of kin- t''c""en8ur- dred of any deceased commission or warrant officer of the navy, or com- ," ^",. ^^^ mission officer of marines, or of any petty officer or seaman, non-com- missioned officer of marines or marine, or shall utter or publish any such petition or application, knowing the same to be false, in order to procure, or to enable any other person to procure, a certificate from the said inspector of seamen's wills, or from the paymaster of royal marines as hereinbefore respectively provided, thereby to obtain, or to enable any other person to obtain, without probate or letters of administration, payment of any wages, pay, half-pay, or pension, or any allowance from the compassionate fund of the navy, or payment of any wages, prize- money, or allowances payable in respect of the servicer, of any officer, seaman, or marine *in the royal navy, or thereby to obtain, or to enable *479 any other person to obtain, probate of the will or letters of administra- tion of the effects of any deceased petty officer, seaman, non-commis- sioned officer of marines or marine ; or if any person shall receive or demand any wages, pay, half-pay, prize-money, bounty-money, pension, or arrears thereof, or any other allowance due or payable in respect of the services of any commission or warrant officer of the navy, or com- mission officer of royal marines, or of any petty officer, seaman, non- commissioned officer of marines or marine, upon or by virtue of any certificate of the inspector of seamen's wills, or paymaster of royal marines respectively as aforesaid, knowing any such certificate to have been obtained by any false representation or pretence; every such offender shall be deemed guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond [k) By sec. 88, in the case of every ofTcncc made felony by tins act, every primipiil in the second deforce, and every accessory before the fact, shnll be punishable in the .^unic nuiniicr as the principal in the first degree is l)y this act punishable: and every accessory after the fact, to any such felony, shall, on conviction, be liable to be imprisoned for any term not ex- ceeding two years ; and where any person shall be convicted of any ott'encc punishable un- der this act, for which imprisonment, shall or may be awarded, it shall be lawful for the court to sentence the olTendcr to be imprisoned, with or without liard labour, in the common gaol or house of correction, and also to direct that the oflcnder shall be kept in s<>lila?-y con- lincmeut for the whole or any portion or poilions of such imprisonment, as to the . ourt in its discretion shall seem meet. See the 1 Vict. c. 00, s. 5, limiting the durai'"" i<'' -..lii; tt confinement, ante, p. 413. 479 OF THE FORGERY OP OFFICIAL PAPERS, [bOOK IV. the seas for any term not exceeding fourteen years, and not loss than seven years, or to be imprisoned for any term not exceeding three years nor let?s than one year."(Zj 11 Geo. 4, 13y sec. 87, ''if any person shall forge or shall utter, offer, or exhibit, c, 20, s. 8'-]jnowing the same to be forged, any paper writing purporting to be an extracts extract from any register of marriage, baptism, or burial, or any certifi- from regis- g^te of marriage, baptism, or burial, in order to sustain any claim to ' ' any wages, prize-money, or other moneys due or payable in respect of the services of any officer, seaman, or marine, in his majesty's navy, or to sustain any claim to any half-pay, payable to au officer of the royal navy or marines, or to any pension as the widow of an officer, or to any payment or allowance from the compassionate fund of the navy, or to any gratuity or bounty of his majesty given to the relatives of persons slain in fight with the enemy ; or if any person shall make any false affidavit, or utter or exhibit any false affidavit, certificate, or other voucher, or document, in order fraudulently to procure any person to be admitted a pensioner as the widow of an officer of the royal navy, or in order to sustain any claim to any wages, prize-money or other moneys, or to any half-pay or pension, or arrears thereof, or any allowance from the com- passionate fund of the navy, or to any gratuity or bounty as aforesaid, with intent to defraud any person whomsoever, every person in any of the said cases ofi"ending shall be deemed guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years and not less than seven years, or to be imprisoned for any term not exceeding three years nor less than one year. '^(^11) Forging The 2 Wm. 4, c. 40, entitled ''An act to amend the laws relating to certificates, ^-^^ ^j^^ business of the navy, &c.," by sec. 32, enacts, " that if any the'2 Wm. person shall forge or falsely make any certificate to be given under the 4. c. 40. authority of this act by the commissioners for executing the office of lord latingtothe tig^ admiral, or any of them, or by any superintendent of the purchase civil busi- or sale of any naval or victualling stores, or shall utter or publish any navy? ^ falso Or altered certificate of any such purchase or sale, knowing the same to be false ; or if any person shall take a false oath, or make a false affirmation, or give false evidence before any commissioner or commissioners for executing the office of lord high admiral aforesaid, or before any superintendent or inspector of seamens' wills, touching any *480 matter which the said commissioners or *any of them, or any super- intendent or inspector, are or is authorized to inquire into; every such person, being duly convicted of any such offence or offences, shall be liable to suffer such punishment, pains, and penalties, as persons guilty of wilful and corrupt perjury, are by law subject to."(m) Sec. 3.3. By sec. 33, " the petition for probate of will or letters of administra- Subscrib- ^•^Q^ jjf (.jjg effects of any deceased petty-officer or seaman, or non-com- fafse pe'ti- missioned officer of marines or marine, or for obtaining a check or certi- tions to tho fi(^.^te in lieu of probate or letters of administration, in cases of claims, seamens' whcic the deceased's assets shall not exceed thirty-two pounds and wills. twenty pounds respectively, shall be addressed to the inspector of sea- men's wills, and shall be forwarded to the secretary of the Admiralty; and if any person shall subscribe, transmit, utter or publish, any false (l) See the last note. ill) See an/e, p. 478, note (k). (/«) For tills punishment see the chapter on Perjury, post. CHAP. XXXVIIL] securities AND DOCUMENTS. 480 petition or application to the said inspector, knowing the same to be false, in order to obtain, or to enable any other person to obtain, any check or certificate in lieu of probate or letters of administration as aforesaid, every person so offending shall be docracd guilty of felony, and being convicted thereof, shall be liable, at the discretion of tho court, to be transported beyond the seas for any terra not exceeding fourteen years, nor less than seven years, or to be imprisoned for any term not exceeding three years nor less than one jco.T.rm\ The 2 & 3 Wra. 4, c. lOG, an act to enable officers in the army, &c., ForKinj? to draw for and receive their half pay, enacts, by sec. 3, that « if any ^^^^'^1*'*" person or persons shall falsely make, forgo, or counterfeit, or cause or pay, Ac, procure to bo falsely made, forged, or counterfeited, or willingly act or )'"^*;f|!;® assist in the false making, forging, or counterfeiting of any such authority 4, c. 108. or certificate, or bill of exchange, or shall utter as true any such false, forged, or counterfeited authority or certificate, or bill of exchange, knowing the same to be false, forged, or counterfeited, with intent to defraud any person or persons, body or bodies politic or corporate, every such person so oflPending shall be deemed guilty of felony, and being thereof lawfully convicted shall be transported for seven years, or suffer imprisonment for any term not exceeding four years, as the court shall direct."(«) The 5 & 6 Wm. 4, c. 24, entitled " An act for the encouragement of 5 & 6 Wm. voluntary enlistment of seamen, and to make regulations for more 1,' ° ' "' effectually manning his majesty's navy," by sec. 3, <' in order to prevent, Fur;^ing as far as may be, frauds and impositions with respect to protection," certificates enacts, that " if any person shall forgo or counterfeit any certificate of in tho navy, service in his majesty's navy, or any instrument purporting to be a pro- °J rrot^eo- tection from such service, or shall fraudulently utter or publish any g^^^.^^ g„, forged certificate of such service, or any forged instrument purporting vice, to be a protection from such service, knowing the same to be forged, or shall fraudulently alter any certificate or protection which shall have been duly granted or issued ; or if any *person shall forge or fraudulently *481 alter any extract from a baptismal register, or shall knowingly utter any false or fraudulently altered extract from a baptismal register, or any false affidavit, certificate, or other document, in order to obtain from the Admiralty Office a protection from his majesty's naval service for himself or any other person ; or if any person, being in the possession of a protection, shall lend, sell, or dispose thereof to any other person, in order fraudulently to enable such other person to make an unlawful use of the same : or if any person shall produce, utter, or make use of as a protection for himself any protection which shall have been made out or issued for any other individual ; every person in any such manner offending shall be deemed guilty of a misdemeanor, and such protection shall thenceforward be null and void." The 2 & 3 Vic. c. 51, entitled, " An act to regulate the payment and 2*3 Vict, assignment in certain cases of pensions granted for service in her FrauJuicnt (m) The 2 Wm. 4, c. 40, contains no e.vpress provisions for tho punishment of principafB in the second degree and accessories ; tiic jn-incipals, therefore in the second degree arc pun- i.-sh.ible in the same manner as the principals in the first degree, and the accessories are pun- ishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 5,) in the man- ner i)ointed out in note (m), ante, p. 448. (/() Tiiis act contains no provisions for the punishment of accessories after the fact, thev therefore arc punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 5,) in the manner stated in note (w), ante, p. 448. 481 OF THE FORGERY OF OFFICIAL PAPERS, [book IV. army, uary, &c. assigumont majesty's army, navy, royal marines and ordnance,'' by sec. 8, reciting in u'ie^^°'^^ that "great frauds have been practised, and exorbitant and usurious in- terest obtained from pensioners, upon assignments made under colour of the said act of the fifty-ninth year of the reign of his said late majesty King George 3, and according to the form set out in the said act, although the money advanced thereon has not been advanced out of parish funds, nor to reimburse a parish for relief given to the prisoner by the churchwardens and overseers," enacts, that " if any person en- titled to pension or other allowance shall assign or aid or assist in making an assignment thereof, or of any quarterly or other payment thereof, to any person or persons whatsoever, except to the guardians of any union or parish, or to the churchwardens and overseers of the poor of the parish wherein such pensioner resides, or to the heritors and kirk session of any place in Scotland where such pensioner resides, and except for relief granted out of the funds of such union, parish or townland to such pensioner, or his wife or family residing with him in such parish, it shall be lawful for the lords and others, commissioners of Chelsea Hospital, as far as relates to army or other pensions payable by such commissioners, and for the Lord High Admiral, or commissioners for executing the oflace of Lord High Admiral, with respect to naval and marine pensions or other allowance, immediately to take away the pen- sion from the person so offending, or to suspend for any definite period the future payments thereof; and if any person or persons shall procure or induce a pensioner to make or aid, or assist him in making any as- signment of pension, superannuation, or other allowance as aforesaid, to any person or persons other than the guardians of any union or parish as aforesaid, or the church wai-dens and overseers of the parish whereia such pensioner resides, or any heritors and kirk session in Scotland as aforesaid, or shall make or aid or assist in making any assignment which shall not be given by the said pensioner or person entitled to otiier allowance as aforesaid, and received by the said guardians, parish offi- cers, or heritors and kirk session, as a security for relief given or money granted or advanced out of the funds of such union, parish, townland, or place, and for reimbursing the guardians, churchwardens and over- seers, or heritors and kirk session advancing the same, or shall receive or accept as payment or security for money or for goods advanced or agreed to be advanced to or lent or given to any such pensioner or person *ent)tled as aforesaid, or shall demand or charge any interest or pecuniary or other compensation, for advancing money upon any pension or other allowance so assigned or taken, or pretended to be assigned or taken, such person or persons shall for every such offence be deemed guilty of a misdemeanor, and shall upon every conviction thereof be punished by such fine or imprisonment, or both, as the court before which such person or persons shall be convicted shall adjudge." By sec. 9, <'if any person shall forge, or counterfeit, or alter, or cause or procure to be forged, counterfeited, or altered, or knowingly and wil- oopies, as- lingly act, aid, or assist in forging, counterfeiting, or altering any signments^ minute, copy of minute, assignment of pension, superannuation or other Ao. ' allowance as aforesaid, order, certificate, receipt, document, or authority whatsoever relating to or in anywise concerning the claiming or obtain- ing payment of any pension money or other allowance as aforesaid, or shall utter or publish as true, or knowingly and willingly act, aid, or *482 Sec. 9. Forgin minutes, CHAP. XXXVII r.] SECURITIES AND DOCUMENTS. 482 assist in uttering or publishing as true, knowing the same to be forged, counterfeited, or altered, any such minute, copy, assignment, order, cer- tificate, receipt, document, or authority relating to or anywise concern- ing the claiming or obtaining payment of any pension-money or other allowance as aforesaid, or the name of any pensioner, justice of the peace, guardian, parish officer, or other officer, or any other person authorized, or supposed, or purporting to be authoriz.ed to sign any such minute, copy, assignment, order, certificate, receipt, document, or autho- rity, with intent or in order to obtain or to enable any other person to obtain, the payment of any such pension or pension-money, or other allowance as aforesaid from the commissioners of Chelsea Hospital or her majesty's Paymaster-General respectively, or from any officer, under officer, clerk, or servant of the said commissioners of Chelsea Hospital, or of her mnjesty's Paymaster-General respectively, or from any person authorized or supposed to be authorized to pay any pension or pension-money or other allowance as aforesaid, every such person so offending shall be guilty of felony, and shall and niay be trans- ported for such term of years, or suffer such other punishment as the court before which such person or persons shall be convicted shall adjudge. "(«) A point may be here noticed, which arose upon the construction of Lyon'? the statutes by which powers of attorney to receive prize-money were P'""®' ''^"'~' regulated. The prisoner had been convicted upon an indictment which of attorDt 3. contained counts char) The 4 Geo. 2, c. 18, s. 1, having reference to the treaties between this ^c'^'^'n^' kingdom and the Barbary powers ; by which, on producing a pass in a Me'iiurm- certain form, those powers agreed to let British vessels go free, enacted, '""'i" />'•*»• " that if any person or persons shall within Great Britain or Ireland, is/s. i. ' («) This act contains no jirovisions for the punishment of .icccssorics after the fact, they thercfurc arc jjunii^halilo (under the 7 & 8 (Jeo. 4, c. 28, ss. 8 and t), .and the 1 Vict. c. 90, s. 5,) in llie manner .stated in note («), ante, \>. 448. (o) Rex V. Hieketts I>yon, 0. H. 1812. M.S. (/)) Rhodcs's •.a.se, 4 Leach, 24. Ilex v. Fitzgerald and Lee, 1 Leach, 20. 2 East, P. C. c. 19, s, 2"), p. 811. Tunnct's cade, cot. Wood, B., Kent Lent Ass. 1818. ilSf. 483 OP THE rOIlGERY OF OFFICIAL PAPERS, [BOOK IV. or any other of his majesty's dominions, or without, falsely make, forge or counterfeit, or cause or procure to be falsely made, forged, or counter- feited, or wittingly or knowingly act or assist in the false making, forg- ing, or counterfeiting, any pass or passes for any ship or ships whatso- ever, commonly called a Mediterranean pass or IMediterranean passes, or shall counterfeit the seal of the said office, or the hand or hands of the Lord High Admiral of Great Britain and Ireland for the time being, or of any commissioner or commissioners for executing the said office for the time being, to any such pass or passes, or shall alter or erase any true and authentic pass or pusses issued or made out by the Lord Higli Admiral of Great Britain and Ireland, or the commissioners for exe- cuting the said office for the time being, or shall utter or publish as true any such false, forged, counterfeited, altered, or erased pass or passes, knowing the same to be false, forged, counterfeited, altered, or erased, all and every such person and persons, being in due form of law convicted of any of the offences aforesaid in any proper court of Great Britain, Ireland, or any of his majesty's plantations beyond the seas, where such offence shall be committed respectively, shall be adjudged guilty of felony, and shall suffer death as in the cases of felony, without benefit of clergy, (a) By the second section it is provided, that such offences committed in any country or place out of Great Britain, either within or without his majesty's dominions, may be inquired of, &c., in any county of Great Britain, by virtue of the king's commission of oyer and terminer and gaol delivery, or before any court or judiciary in Scot- land, &c. *484 The 5 Geo. 4, c. 113, entitled "An act to amend and consolidate the .") Geo. 4, claws relating to the abolition of the slave trade," enacts, by sec. 10, 113 s 10 . . 1 T J ^ Forging ' " ^^'^ ^^ ^'^J person shall wilfully and fraudulently forge or *counter- Ac, ceWi}?-feit any certificate, certificate of valuation, sentence or decree of con- relating'^to demuation or restitution, copy of sentence or decree of condemnation or the slave restitution, or any receipt, (such receipt being required by this act,) or trade. ^^^ ^^^^ q£ ■^v.^ Certificate, certificate of valuation, sentence or decree of condemnation or restitution, copy of sentence or decree of condem- nation or restitution, or receipt as aforesaid ; or shall knowingly and wilfully utter or publish the same, knowing it to be forged or counter- feited, with intent to defraud his majesty, his heirs or successors, or any other person or persons whatsoever, or any body politic or corporate : then and in every such case the person or persons so offending, and their procurers, counselors, aiders and abettors, shall be and are hereby declared to be felons, and shall be transported beyond seas for a term not exceeding fourteen years, or shall be confined and kept to hard labour for a term not exceeeding five years, nor less than three years, at the discretion of the court before whom such offender or offenders shall be tried and convicted." (?•) 6 ,) in the manner stated in note (u), ante, p. 448 ; and the principals in tho second dcj^rcc and the accessories are iu this instance punishable in the same manner as tho principals in the first degree. 489 OF THE FORGERY OF OFFICIAL PAPERS. [BOOK IV. procure to be forged, counterfeited, or altered, or shall knowingly or wilfully act or assist in the forging, counterfeiting or altering any cer- tificate or certificates of any officer of the commissioners for the reduc- tion of the national debt, or of any cashier or clerk of the Bank of Eng- land, or the name or names of any person or persons in or to any trans- fer of any bank annuities or long annuities, or in or to any certificate or other instrument for the payment of money for the purchase of any an- nuity under the provisions of this act, or in or to any transfer or accept- ance of any such annuity in the books of the governor and company of the Bank of England, or in or to any receipt or discharge for any such annuity, or in or to any receipt or discharge for any payment or pay- ments due or to become due thereon, or in or to any letter of attorney or other authority or instrument to authorize, or purporting to authorize the transfer or acceptance of any bank annuities or; long annuities, or any life annuity, or any annuity for years of whatsoever kind, under the provisions of this act, or authorizing or purporting to authorize the receipt of any life annuity, or any annuity for years of whatsoever kind, granted under this act, or any payment or payments due or to become due thereon ; or if any person or persons shall wilfully, falsely and de- ceitfully personate any true and real nominee or nominees, or shall wil- *490 fully *utter or deliver or produce to any person or persons acting under the authority of this act, any such forged register or copy of register, or any such forged certificate, affidavit or affirmation, knowing the same to be forged, counterfeited or altered, with intent to defraud his majesty, his heirs and successors, or with intent to defraud any person or persons whomsoever, then and in every such case all and every persons and per- son so offending, and being lawfully convicted thereof, shall be adjudged guilty of felony, and shall suffer death. "(c) 2 .t 3 Wm. The 2 & 3 Wm. 4, c. 59, entitled '< An act to transfer the manage- 19*^' ^F ^ Dicnt of certain annuities on lives from the receipt of his majesty's ex- ing decla- chequer to the management of the commissioners for the reduction of rations, jj^g national debt," &c., by sec. 19, enacts, that " if any person or per- transfers ' SOUS shall forge, counterfeit or alter, or shall cause or procure to be of annui- forged, counterfeited or altered, or shall knowingly or wilfully act or ' ' assist in the forging, counterfeiting, or altering any declaration, warrant, order, or other instrument, or any affidavit or affirmation required to be made by this act, or by the commissioners for the reduction of the na- tional debt, under any of the provisions of this act, or under any autho- rity given to them for that purpose ; or shall forge, counterfeit or alter, or shall cause or procure to be forged, counterfeited or altered, or shall knowingly or wilfully act or assist in the forging, counterfeiting or alter- ing any certificate or order of any officer of the commissioners for the reduction of the national debt, or the name or names of any person or persons in or to any transfer of any annuity, or in or to any certificate, order, warrant, or other instrument for the payment of money for the purchase of any annuity under the provisions of this act, or in or to any transfer or acceptance of any such annuity in the books of the commis- (c) Mr. Lonsdale (St. Cr. L. 94,) observes that several branches of the above enactment ap- pear to be superseded by the 1 Wm. 4, c. 66, ss. 6, 10, 20. With respect to the remaining branches, the offences therein described not having been repealed by the 1 Wm. 4, c. 66, and that act not having made them punishable with death, although previously so punishable, persons convicted thereof are liable (under the 1 Wm. 4, c. 66. ss. 1 and 26, and the 1 Vict. c. 90, s. 5,) to the punishment stated in note (A), ante^ p. 415. As to the punishment of prin- cipals in the second degree and accessories, see ante^ p. 410. CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 490 sioners for the reduction of the national debt, or in or to any receipt or discharge for any such annuity, or in or to any receipt or dijjchargc for any payment or payments due or to become due thereon, or in or to any letter of attorney or other authority or instrument to authorize, or purporting to authorize the transfer or acceptance of any annuities or any life annuity of whatsoever kind, or authorizing, or purporting to authorize the receipt of any life annuity of whatsoever kind, granted under any of the said recited acts or this act, or any payment or pay- ments due or to become due thereon ; or if any person or persons shall wilfully, falsely or deceitfully personate any true and real nominee or nominees, or shall wilfully utter or deliver, or produce to any person or persons acting under the authority of this act any forged register or copy of register of any birth, baptism, or marriage, or any forged de- claration, affidavit or affirmation, knowing the same to be forged, coun- terfeited or altered, with intent to defraud his majesty, his heirs and succ essors, or with intent to defraud any person or persons whomso- ever; then and in every such case all and every person and ^persons *491 so offending, and being lawfully convicted thereof, shall be adjudged guilty of felony, and suffer death. "(r?) By the 2 & 3 Anne, c. 4, which was passed for the public register- Forging ing of all deeds, conveyances and wills of any honors, manors, lands, *."^ ™^^" tenements or hereditaments, within the West Hiding of the county of cate, Ac, York, it is directed that a memorial of such deeds, &c., be registered °'!''^*^*]'' 'Wills tvC. in a certain manner at Wakefield, and that the registrar shall indorse a of lami, ' certificate of such registry on every such deed, &c.; and the nineteenth '^'^■' ''^S's- section enacts, " that if any person or persons shall at any time forge ■\vest and or counterfeit any such memorial or certificate as arc hereinbefore men- North Rid- tioned and directed, and be thereof lawfully convicted, such person or Yorkshire persons shall incur and be liable to such pains and penalties, as in and or in Mid- by the 5 Eliz., c. 14,(c) are imposed upon persons for forging or pub-"'''.^"^- ^ * lishing of false deeds, charters, or writings scaled, court rolls, or wills, -i. 5 \\\r. mcntary xcritimj, or any bill of exchange, or any promissory note for"°''''- ^^■ the payment of money, or any indorsement on or assignment of any bill of exchange or promissory note for the payment of money or any acceptance of any bill of exchange, or any undertaking, warrant, or order for the payment of money, with intent, in any of the cases afore- said, to defraud any person whatsoever, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon."(i) Sec. 4, declares and enacts, "that where by any act now in force Sec. 4. any person is made liable to the punishment of death for forging or ^l^"^^^!^'!" altering, or for offering, uttering, disposing of, or putting off, knowing however the same to be forf]rcd or altered, any instrument or writing designated '.''■■;"fe'''"'*^''' ° '•'-.. ,° . " IS in law a in such act by any special name or description, and such instrument jjUi of ex- or writing, however designated, is in law a will, testament, codicil, or ^''^iigp, -tp- testamentary writing, or a bill of exchange or a promissory note for ^^jgygi, in- the payment of money, or an indorsement on or assignment of a bill of struracnt, exchange or promissory note for the payment of money, or an accept- '^j^^pj*'^^/ ance of a bill of exchange, or an undertaking, warrant, or order for der this the payment of money, within the true intent and meaning of this act, ^'^'* in every such case the person forging or altering such instrument or writing, or offering, uttering, disposing of, or putting off such instru- (ff) Sec the whole section, ante, p. 424. The words in italics -^vcrc not in the former acts. (h) The present punishment (under the 1 Vict. c. 84, ss. 1, 2, 3, ante, p. 413,) is transpor- tation fur life, or for any term not Ic.^s than seven years, or imprisonment for any term not excecdinf:^ four nor less than two years, with or witht)ut hard labour, in the common gaol or house of correction and the offender may he ordered to be kej)! in solitary confinement for any portion or portions of such imprisonment, not exceeding one month at any one lime, and not exceeding three months in the space of anj'onc year, as to the court in it.-; discretion shall seem meet. For the frcneral provisions of the 1 Wm. 4, c. QQ, see ante, p. 409, et seq., and for the punishment of principals in the second degree and accessories, see the 1 Wm. 4, c. 66, s. 25, ante, p. 410. f {See 2 U. S. Laws, p. 1917, (Story's ed.)— " An act for the punishment of frauds commit- ted on the government of the United States." Also, pp. 2003, 2004, the 17lh, 18th, and 10th sections of st. 1825, c. 276.} 495 OF THE FORGERY OF PRIVATE PAPERS, [bOOK IV. mcnt or writing, knowing the same to be forged or altered, may be indicted as an offender against this act, and punished with death accord- ingly."(«) *496 By sec. 10, "if any person shall forge or alter, or shall offer, utter, Sec. 10. dispose of, or put off, knowing the same to be forged or *altered, any aeef'"b*oiKl ^ced, bond, or writing obligatory, or any court roll or copy of any court receipt for roll relating to any copyhold or customary estate, or any acquittance or money or pgggjpt either for money or goods, or any accountable receipt either for iiccount- money or goods, or for any note, bill, or other security for payment of able receipt u^oney, or any warrant, order, or request for the delivery or transfer of for delivery goods, or for the delivery of any note, hill, or other security for pay- of goods; ment of money, with intent to defraud any person whatsoever, every t^onforlii^" such offender shall be guilty of felony, and being convicted thereof, Ac. shall be liable, at the discretion of the court, to be transported beyond the seas for life or for any term not less than seven years, or to be imprisoned for any term not exceeding four years or less than two years." ((/) It is to be observed, that although this act does not extend to Scot- land or Ireland, yet it applies to the forging or uttering in England documents purporting to be made, or actually made out of England, and to the forging or uttering in England bills of exchange, promissory notes, bonds, &c., purporting to be payable out of England. (^e) Construe- It vras holden to be in the election of the party in the case of forging tion of for- Jeeds to lay the indictment either at common law, or upon the 5 Eliz. totes. ' c- 14*(/) -^^^ ^^ *^^^ statute is repealed by the 1 Wm. 4, c. 66, and had been considered, some years previously, as having nearly fallen into disuse,^^/) it may be deemed sufficient merely to refer in this place to the books in which the cases upon tbe construction of it are to be found collected. (/i) In one of the latest of those cases it was holden that the statute did not mean that there should be a forged conveyance of the very lands; but if it were any deed whereby the party might be mo- lested, it was sufficient.(i) And a variance as to the description of the lands was holden not to be material. (_;') Moro mo- The more modern statutes in relation to the forgery of private papers, deru sta- securities, and documents, were the 2 Geo. 2, c. 25, (extended to for- geries with intent to defraud any corporation by 31 G-eo. 2, c. 22, s. 78,) the 7 Geo. 2, c. 22, (extended in like manner by 18 Geo. 3, c. 18,) the 43 Geo. 3, c. 130, as to the forging oi foreign bills of exchange, &c.) and the 45 Geo. 3, c. 89. But these statutes are repealed by the 1 Wm. 4, c. 66, s. 31. It was remarked with reference to these repealed sta- tutes, that the same general rules of construction would apply equally to the same instruments named in several statutes passed in pari mate- (c) See the last note. (d) As to the punishment of principals in the second degree and accessories, see ante, p. 410. (e) See sec. 29, and sec. 30, ante, p. 411. (/) Obrian's case, 2 Str. 1144. As, however, the forgery of a will is now made a felony by statute, it is apprehended that it would not be competent to indict for forging a will as a misdemeanor, as the misdemeanor is merged in the felony. See ante, vol. 1, p. 50, and Rex V. Evans, 5 C. & P. bb3,post. C. S. G. {g) 2 East, P. C. c. 19, s. 33, p. 919. (A) 3 Inst. chap. T5, p. 168, et seq. 1 Hale, G82, et seq. 1 Hawk. P. C. c. 10, s. 12, et seq. Bac. Al)r. tit. Forgery, {G). 2 East, P. C. c. 19, s. 33, p. 919, et seq. {{) Crooke's case, 2 Str. 901. 2 East, P. C. c. 19, s. 33, p. 921. Ante, p. 3G4. (y) Id. ibid. CHAP, XXXIX.] SECURITIES AND DOCUMENTS. 496 rill ; and all must necessarily be governed by the same principles of the common law. (A) Upon an iudictmcnt for forging a will, the probate of that will unrc-Will. pealed, is not conclusive evidence of its validity, so as to be a bar to the prosecution. (/) ♦Several questions have arisen as to the written instruments which *497 may be considered as deeds, bills of exchanr/c, promissori/ notes, in- Questions dorsements, ^c. ; or as receipts; or as icarrants or orders for the />«y- ripeakd mcnt of money or delivery of yoods. sUitutce. A power of attorney has been holdcn to be a deed within the mean- Power of ing of the 2 Geo. 2, c. 25, s. 1 (now repealed.)! And in the same ca.se ^^jq'Jj ^ '" it was decided that forging a deed was within that statute, though the directory provisions of subsequent statutes had directed that instruments for the purpose for which the forged deed was intended should be in a particular form, or should comply with certain requisites, and the forged deed was not in that form, nor had been made in compliance with those requisites ; for the directory provisions did not make the deed wholly void in consequence of its not being in the form prescribed, and not having requisites. (»i) In a subse(|uent case it was also holden, after very ingenious and learned argument, that a power of attorney to trans- fer government stock, signed, sealed, and delivered, was a deed within the repealed statute, 2 Geo. 2, c. 25.(«) It may be observed, that the question whether uttering in England a Uttering promissory note of a Scotch bank, or chartered Scotch company, payable '"^1^° 'f ? in Scotland, is made felony by statute,(o) appears to be set at rest by England, the 1 Wm, 4, c. 66, s. 30.( p) Upon an indictment for forging or uttering a note of the Royal Bank of Scotland, it is not necessary to prove that any of the charters gave the bank power to draw or issue notes, for that power is sufficiently re- (k) 2 East, P. C. c. 19, s. 33, p. 020. (/) Rex V. Buttery and Macnamara, Russ. k Ry. 342. Ante, p. 346, and sec ante, p. 345, 346, as to the cases which have been decided relative to the forgery of wills. (m) Rex V. T. R. Lyon, Russ. & Ry. 255. (/() Rex i\ Fauntleroy, R. & M. C. C. R. 52. And see Rex v. Waitc, Russ. & Ry. 505. (o) This question was raised in Dick's case, 1 Leach, 68. 2 East, P. C. c. 19, s. 35, p. 925, where the prisoner was indicted for uttering a forged Scotcli bank note, and the judges were divided in ojjiuion wliether such a note were within the meaning of the 2 Geo. 2, c. 25, and whether the uttering it in England were fdonj- ; the 2 Geo. 2, c. 25, s. 4, pro- viding that nothing in the act contained should extend to that part of Great Britain called Scotland. And also in M'Kay's case, 0. B. 1803, MS. and Russ. ) Ante, p. 411, and see Reg. i'. Ilannon, 2 Moo. C. C. R. 11, post, p. 534. f jA contrary decision was made in Virginia, though the statute of that state is a transcript of St. 2 Geo. 2, c. 25. 1 Virginia Cases, 4, Commonwealth v. Proctor. Tiic statute of the United States, 1823, c. 166, (3 U S. Laws, 1917, Story's ed.) "for the punishment of frauds committed on the government of the U. States," includes a " power of attorney," in the enumeration of instruments which it is made penal to forge, alter or counterfeit.} 497 OF THE FORGEKY OF PRIVATE PAPERS, [BOOK IV. cognised by the 42 Geo. 3, c. 149, s. 16, and the 55 Geo. 3, c. 124, s. 28.(.,) Wilcox's In the following case it was holden that a promissory note for the case. A payment of a guinea in cash or Bank of England note was not within note for the the repealed statute, 2 Geo. 2, c. 25. The prisoner was tried on an in- payment of (lietment charging him in the first count with forging, and in another one guinea ° .° , . . , « o _ dj in cash or count With uttenug knowing it to be lorgcd, a certain promissory note Bank of fQj. ti^g payment of money, the tenor of which was as follows, viz : — note holden "•?* *° \l ^Fontefract Bank, 1st April, 1807. •within the . *'. i i i • , 2 Geo. 2, c. " 1 promise to pay the bearer one guinea on demand here in cash or 2^- Bank of England note. *498 "No. C«. 501. "No. C-^. 591. " For Perfect, Seaton & Co. Entd. J. U. " John Seaton." " One Guinea." with intent to defraud John Garside. There were two other similar counts, charging the intent to be to defraud John Seaton, John Fox Seaton, and Richard Seaton, the bankers. The jury found the prisoner guilty of uttering the note, knowing it to be forged; but the learned judge respited the sentence, in order to take the opinion of the twelve judges on the question, whether this was a note for the payment of money within the repealed statute 2 Geo. 2, c. 25, the guinea being by the terms of the note to be paid in cash or Bank of England note at the option of the payer. And it is understood that the judges were of opinion that the conviction was wrong. (r) Chisholm's In the following case a point was made whether the instrument in ^\\'a ^ question could be considered as a hill of exchange within the 2 Geo. 2, upon the c. 25, (now repealed). The prisoner was convicted for forging a certain commision- jjiH of exchange in the following form . — CrS 01 iDG navy hold- en to be a u 3d Rate, Robert Gore. Dill of ex- ' _ 1-fn-iT n -nr 1 r^-i 1 change " Entered 13 not Society, held at Mr. Pope's, the Hope, Smithficld, or their successors in "^*'" "^ ofiSce, sixty-four pounds, with 5 per cent, interest for the same, value received, this 7th day of February, 1815, " For Felix Calvert and Co. "£64" "John Forster." It was moved, in arrest of judgment, that this was no promissory note ; and the case was argued before the twelve judges. Their opinion was afterwards delivered by Le Blanc, J., to the following eifcct : — "An objection was taken in arrest of judgment, and argued before all the judges, that the instrument in question, such as it is stated in the indict- ment, was not a promissory note within the statute, so as to be the sub- ject of an indictment for forging or uttering it, knowing it to be forged. The objection to this instrument was founded on this circumstance, that it appears to be made payable to two ladies, describing them as stew- ardesses of a provident society, or their successors in office ; and that this society not being enrolled according to the statute, this note was not capable to enure to their successors, and was not negotiable. The judges are of opinion that this is, as stated on the indictment, a valid promissory note within the statute of Geo. 2. It is not necessary that such a note should be in itself negotiable; it is sufficient that it should be a note for the certain payment of a sum of money, whether negoti- able or not. And though these ladies were not at the time legally stewardesses, yet it was a description by which they were known at the time J and though they could not legally have successors in office, yet in case of their decease, their executors and administrators might sue, and they themselves, during their life, might recover on it. Therefore, it is an instrument capable of being the subject of forgery, and there is no ground to arrest the judgment ; and the judges are all of opinion that the conviction is right. "(r) Forging a bill payable to the prisoner's own order, and uttering it l^irkott'i" without indorsement, as a security for a debt, was holdeu to be a com- [||^^"^ j^[J[^" plete offence. The count in the indictment more peculiarly applicable payable to {it) Maddock's case, 0. B. Oct. 1815, and argued before the judges iu Mich. T. 1815, MS. (v) Rex V. Box," 1815. 6 Taunt. 325. Russ. k Ry. 300. * Eng. Com. Law Reps. i. 401. 501 OF THE FORGERY OF PRIVATE PAPERS, [book IV. tho prison- er's own orders, and uttering it without in- dorsement as a secu- rity for a debt, held to be a complete oflFence. to the facts of the case charged that the prisoner having in his posses- sion a paper whereon was written or printed to the following tenor : — "No. 28. £ « Preston Bank, 1804. " Pay to the order of value received. " Atuerton, Greaves, and Denison." "To Joseph Denison, Esq., and Co., London." Entd. *502 *did forge, &c., in and upon the said paper as follows : — "2310" — 35 : 3 : 5 : — " 16 August" — " Two months after date" — " Mr. John Birkett, thirty-five pounds 3 : 5" — "R. N." — and by that means did forge, &c., a bill of exchange as follows : — " No. 28. £35: 3: 5. " 2310 Preston Bank, 16 August, 1804. " Two months after date pay to the erder of Mr. John Birkett thirty five pounds 3 : 5, value received. " Atherton, Greaves, and Denison." " To Joseph Denison, Esq. and Co., London. « Entd. R. N." with intent to defraud Atherton, Greaves, &e. Other counts charged an uttering, &c.; and others an intent to defraud different persons, and amongst others, one Matthew Yates. By the evidence of the wife of Matthew Yates, the person mentioned in the indictment, it appeared that her husband resided at Liverpool and kept an inn there, to which the prisoner came on the 14th of the preceding August, with a horse, and continued boarding and lodging there until the 27th of the same month. Four or five days before the 27th, a person came to the inn and took away the horse, and the witness then directed the waiter to carry the prisoner his bill ; after which the prisoner came to her and gave her the bill of exchange, filled up as stated in the indictment, saying he hoped that would satisfy her for what he had had ; to which she answered, "I dare say it will;" and took it from him and kept it until the 27th of August, when the prisoner was apprehended. Upon cross-examination, the witness said that the prisoner did not give the bill of exchange to her as payment; and that she knew she could make no use of the bill until the prisoner indorsed it; that he told her he did not wish to discount it, and would pay her in a few days without it. She further stated, that she considered herself as keeping the bill for the prisoner, and not for herself. It was further proved, that the pri- soner had been a clerk in the house of Atherton and Co. from July, 1803, to July, 1804, and that it had been usual in that house to have checks signed "Atherton, Greaves, and Denison" kept in a drawer within the proper custody of two superior clerks, but accessible to the prisoner, who was sometimes permitted to sign them. It was also proved, that the whole of the written part of the bill of exchange stated in the indictment, except the signature " Atherton, Greaves, and Deni- son," was in the handwriting of the prisoner. The learned judge left CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 502 the case to the jury, telling them that the use made of the instrument when filled up by the prisoner, though not indorsed, was conclusive evi- dence of the fraudulent intention, and proved as well the counts charg- ing the actual forgor}', as those which charged the uttering, &c., know- ing it to have been forged; and the jury returned a verdict of guilty. But the learned judge afterwards respited the sentence, doubting whether he ought not to have left the question of fraudulent intention more open to the jury; in which case they might have found that the prisoner did not mean to defraud any person, but, by paying his reckon- ing and taking back the bill, to make no further use of it. The case was taken into consideration* at a meeting of all the judges in Easter *503 term, lltli INFay, 1805, when they were of opinion that the facts stated amounted to forgery, and with a fraudulent intent; the bill having been given to the landlady to obtain credit, though as a pledge only.(!/-) We have seen that where a prisoner was indicted for forging an ac- T^'"» of ex- ceptancc of a bill of exchange, and it appeared tliat at the time when rj^ti'vo' the acceptance was written, a blank was left in the bill for the drawer's wiion ac- nanie, it was held that the indictment was not supported, as the instru- ^^!^f).'*fo*i.g*ed ment, to which the forged acceptance was affixed, was not at the time upon them, of the forgery a bill of exchange, there being no drawer's name.(.r) And whereupon an indictment containing counts for forging and utter- ing a bill of exchange, it was proved that the prisoner wrote the accept- ance on a blank stamp, and the bill was drawn two days afterwards in the absence of the prisoner: Pattesou, J., doubted whether the charge of forgery could be supported, because at the time when the acceptance was written on the stamp, it was a blank paper, but said that it was not very material if the prisoner uttered the bill afterwards, knowing the acceptance to be a forgery. (//) We may now shortly consider the questions which have arisen as Cases as to to the instruments which may be considered as receipts within the j^^j^fJi^-g'' statutes. f ease. " Re- in a case where the prisoner was indicted for uttering a forged ''*'"'^*^*'^® receipt for money," in the following words, "Received the contents ;,i.ovo, by above, by me, Stephen Withers ;" it appeared in evidence that he was """'.f-. ^^'•' employed by a person who kept a lottery-office, to carry out the prize- s„iiicK.nt money, with an account of the deductions, and to pay it to the party, statement and bring back his receipt; and that the following account was tlelivercd "^. ^^j^^^j^g to him, with money to pay the balance — indictment, without setlinj;; "No. 38,811. forth tho Mr. Withers. £. s. d. hiiiofitem!. ^,-,.--,. 1 r e\ to which 11 " One-lGth of a 20?. prize - - - 1 O U referred. '< Deduct for expenses, advances, and remitting money to you - - - - - 10 1 4 0" (((•) Rex V. Rirkctt, Russ. k Ry. 8G. (x) Rpg. V. Ruttcrwick, 2 .M. & Rob. 19G, Parke, B., ante, p. 323. \y) Reg. J'. Cooke,* 9 C. & P. 582. Sec Reg. v. Ilawkes, 2 Moo. C. C. R. fiO, antr. p. 352. Reg. V. Kinnear, 2 M. & Rob. IIY, ante, p. 352. Reg. v. Bartlett, 2 M. & Rob. 3 62, aw/f,p. 35 6. f [An indorsement on a note of partial payment, in the handwriting of the maker, with- » Eng. Com. Law Reps. xx.\iv. 535. 508 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. That upon producing this account again, when he settled his aecouuts with his employer, the receipt stated in the indictment was at the bot- tom of it ; and that he had not paid the money to Mr. Withers, whose handwriting had been forged. It was objected on behalf of the prisoner, that this receipt did not correspond with the indictment ; for nothing- was set forth but the receipt as for the contents above ; and that together with the bill of particulars was one entire thing ; and it being set forth, " which said false receipt, &c., is as follows," the whole ought to have been set forth, and not part only, namely, " the contents ahove," which *504 did not appear to be *the same, nor to be a receipt for money. And it was also urged after conviction, in arrest of judgment, that it did not appear by the receipt set out in the indictment that it was a receipt for money, or what it was for ; and that being only for the contents above, and nothing set forth to show what they were, or explain the receipt, it was unintelligible. The judges were of opinion that the indictment was sufficient, for it was, " Received the contents above," which showed it to be a receipt for something, though the particulars were not expressed; and it was held to be a forged receipt for money, under the hand of Stephen Withers, for \l. 4s. ; and the bill itself was only evidence of the fact, and showed it to be a receipt for money as charged. (:;) Harrison's It has been admitted that bank notes are not considered as money or A^^f ' rt goods, within the 2 Geo. 2, c. 25. | But it appears to have been holden, receipt for in the Same case, that an entry of the receipt of money or notes made bank notes }qj ^ cashier of the Bank of England in the bank book of a creditor, receipt for was an accotintable receipt for the payment of money within the re- moncy or pealed Statute 7 Geo. 2, c. 22. The indictment against the prisoner witliin tlio contained a great number of counts ; one set framed on the 2 Geo. 2, 2 Geo. 2, c, c. 25, and 31 Geo. 2, c. 22, s. 77, charging the prisoner with forging ■ . " and uttering a certain receipt for money, viz. " 1777, June 16, Bank of the re- notes, C. £3210," with intent respectively to defraud the Bank of ceipt of England and the London Assurance Company ; the other set framed on money or ^ ... notes, made the 7 Geo. 2, c. 22, charging the prisoner with altering and uttering a by the certain accountable receijJt for bank notes for payment of inoney, the Bank of (setting it out as before,) viz. "the said sum of 210?." by prefixing the England in figure 3 to the Said figures and cypher 210?., whereby the words, &c., £)okT/l' " 17'^7; J"^e 1<5, Bank notes, C. £210," together with the figure 3 im- creditor ported that J. C, a clerk of the Bank of England, had received bank '^olr^Me' ^°*''^^ ^^ ^^ amount of 3210/. with the like intent. Upon the evidence, recei'pt for it appeared that the London Assurance Company, to whom the prisoner the pay- ^j^g accomptant, kept their cash with the Bank of England ; for which money purpose the Bank furnished the London Assurance with a book, the within the title of which was, " Debtor, the Bank of England with the London 7 Geo 2 c 22. " ' ' Assurance, Creditor." On the debtor side, the clerk of the bank, when any money or bank note was sent to him, entered the date, and what it was that was paid in ; then he signed his name, and afterwards wrote Reg. V. Lee, 2 M. & Rob. 281, ante, p. 38*7, and other cases, ante, p. 351, et seq., as to the sufficiency of bills of exchange, &c., in point of form. [z) Testick's case, 1774. 2 East, P. C. c. 19, s. 36, p. 925. out any signature, but made in the presence, with the concurrence and by the direction of the payer, is a receipt, the alteration of wlaich is forgery. Keggy. The. State of Ohio, 10 Ohio, 75.] X {3 McCord, 442. State v. Foster, Ace.} CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 504 the sum, putting a bar or dash before the figures iu order to prevent another figure being prefixed or subjoined ; and when the London Assurance sent for money, the cashier of the Bank ^i-mtc off so much from their bimk-book ; which bank-book was kept by the prisoner, as accomptant to the company, and sent by him to the bank as occasion required. On the 16th June, 1777, the company paid into the Bank the sum of 210^. which was received by a clerk of the name of John Clifford, who made an entry in the books as follows, " 1777, June IG, Bank notes C. £210," to which sura the prisoner prefixed the figure 3, making thereby the sum received appear to have been ;J210/. The fact of prefixing the figure in the manner charged iu the indictment, having been brought home to the prisoner, it was first objected that the case was not within the first *set of counts, which were framed on the 2 *505 Geo. 2, and 51 Geo. 2, those statutes being confined to receipts for moiiri/ or (joods, and this being a receipt for bank notes, which were neither money nor goods; and that the legislature had so thought, by passing the 7 Geo. 2, in which hills, notes, Sec, are particularly men- tioned. And this objection was allowed. But the prisoner was con- victed on the second set of counts, framed on the 7 Geo. 2, c. 22 : and two points were reserved for the consideration of the judges; first, whether the entry made by the cashier in the bank-book could be con- sidered as an accountable receipt for the payment of money within that statute ; and, secondly, that the intent to defraud a corjioration, (the Bank of England and the London Assurance Company being the cor- porations stated in the indictment,) was not within the statute ; which was confined to forgeries committed with intent to defraud any 2}crson. It is said that the judges were clearly of opinion on the first point that an entry in a bank-book was an aceuuntahle rcceijjt within the mean- ing of the act. But no opinion was publicly given; and the matter became unimportant in the particular case, as the judges decided the second point in favour of the prisoner, and he was discharged. (a) In the following case the point arose as to the necessary averments Hunter's in the indictment of the instrument in question purportintr to be and ^''^^'^* .'^^'^ , . . , . ,. , '■ .. , ° , , meiQ sign- being a receipt, where it did not necessarily purport to be such on the iug certain face of it. The indictment charged that the prisoner had in his posses- ""'"*'» to an , . 1 Ml / 1 • 1 /> ,1 T • 1 apsicnmcnt sion a certain uavy-bill, (which was set lorth according to its tenor and fur pay- efiFect,) under which navy-bill there was contained a certain order iuJuc'it.uf"- writing for payment, called an assignment, &c., and upon which there ^^""^{11^ was contained a certain indorsement, partly printed and partly written, Joes not, by one Wm. Davis, chief-clerk to the comptroller of his majesty's navy, n"eted with in his office for bills and accounts, to the following tenor and eflfect : other facts, ''The certificate within mentioned is indorsed by Edward "Wilson, pay- r"nwt on able to Mr. Wm. Thornton ; T. Davis :" and that the prisoner forged, the writing &c., a certain receipt for money, to wit, for the sum of 25/. mentioned ^^ ^" '^ ^'^- {(i) Harrison's case, 1777. 1 Leach, 180. 2 East, P. C. c. 19, s. 3G, p. 92G. In the last authority the point respecting the accountalilc receipt is not reported ; but it is referred to as stated in 1 Leach, and it is observed that, in a subsequent ease, (Lyon's ease, 2 East, P. C. c. 19, s. 3G, p. 934,) Grose, J. alluded to the ground \\\wn which this point was decided, and said, " that in Re.x v. Harrison, the book iu which the entry was made iuqiorted to be a book containing receipts for money received l)y the bank from their customers, and there- fore showed that the money was received from the party to whom the book belonged." Mr. East also observes, that it does not ai)pear whether the opinion of the ju) •Upon the authority of the foregoing case, it was holden that an *507 indictment for forging the word "settled," at the bottom of a bill of Thomp- parcels, must show by proper averments that it is a receipt. The in- 1^^ huilet' dictment charged that the prisoner did forge, &c., a certain receipt for mont for monei/, to wit, for the sum of one pound, one shilling, and si.Kpcncc; "oriP^gcV* which said, false, forged, and counterfeited receipt for money is as fol- f/ff'as good.(?«) Same point So where the prisoner was charged with forging a certain receipt for precedinff i^o^cy. Viz., a receipt for the sum of twenty pounds, and it appeared case. that the prisoner went to the house of a tradesman, and obtained 20/. by saying that he came from Quartermaster Serjeant Hunter for change for an instrument in the followinf^ form : " Pteceived this 26th day of September, 1834, of Messrs. Cox and (m) Rex V. Hope, R. k M. C. C. R. 414. CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 510 Co., Paymasters Royal Rogiinent of Artillery, the sum of <£"20 oa ac- count of subsistence for my detachment for the present month. " £20. " H. Pestkr, Capt. Ailjt. 11. U. A. (Indorsed) "Sam. Rick, Gun. R. H. A." It also appeared that these receipts wore frequently ca.'^hcd by the *511 *tradcsmen in Woolwiek, who afterwards received the money from the army agents. Park, J. A. J., after mentioning the preceding case, and stating that he was not aware whether the question had been considered or not, was of opinion that this indictment was good.(?() Altering the sum in the bod}' of the high constable's precept for AUcring county rate after he has si=tatute. guch subscriptions to fill up the receipts with the names of the subscri- ^ bers, or persons from whom they originally received the money; and, until the blank left in the printed form was so filled up, the instrument did not become an acknowledgment of payment ; or, in other words, a receipt ioT money. While in such a state it was no more a receipt than if the sum professed to be received had been omitted. (2>) Memoran- A memorandum importing that A. B. had paid a sum to C. J)., but dum im- not importing any acknowledgment from C. D. of his having received porting a ,,ii --i-i payment, it, was holden not be receipt withm the statute. (^f) but not of li\''here a person who was employed by the executors of a contractor e men . .^^^ ^^^ navv board to settle the account of the testator with aovern- Thomas's •' • n ^ ■ -, . ^ ^ case; hold- uient, produced certain lorged acquittances and receipts j or money, and en that delivered them to the navy board, in order to exonerate the estate of person who the testator from an extent, it was holden to be a forging and uttering was em- within the 2 Geo. 2, c. 25. The indicment charged the prisoner with the^execu- forging and uttering, knowing, &c., a great many acquittances and re- tors of a ceipts, (which were set forth,) with intent to defraud the king. It was '"ithThe"'" Objected by his counsel that the case was not within the 2 Geo. 2, c.25, navy board as the receipts in question purported to be the receipts given to Collin- to settle the j,jjgg^ the contractor, by persons employed by him, for money therein the testator stated to havc been paid to them for work and materials done and pro- with go- vided for the business in which he was employed under the navy board, produced' ^'^^ ^^'"^ produced by the prisoner as vouchers, to accompany and verify (oo) Reg. V. Griffiths, Monmouth Spr. Ass. 1843. MSS. C. S. G. {p) Lyon's case, 0. B. 1793, 2 Leach, 597. 2 East, P. C. c. 19, s. 36, p. 933. And see several points as to the forgery of scrip receipts discussed in Reeves's case, 2 Leach, 808, et seq. (q) Rex V. Harvey, Russ. & Ry. 227. CHAP. XXXIX.] SECURITIES AND DOOUMBNTS. 512 Collinridgc's accounts, in order to get them passed by the navy board; forj^od nc- which accounts the prisoner had taken upon himself, after Collinridgc's a"a'r"e-**'^ death, to get passed, in order to avoid an extent which liad issued coipts, against Collinridge's estate and effects. And it was urged in support |^^'"|j|^^^^'"® of the objection, that these workmen were solely employed by Collin- bricatcd ridge, and not by the navy board ; and that he, and not the navy board, ^'^''^hers in was answerable to them. That, therefore, the board had nothing to cxunerato do with these receipts; and it was indifferent to the board whether '''" ^'^''^tes these sums had been paid to these several persons or not. The prisoner l*,,^ from an having been convicted, the case was submitted to the consideration ofe.\tont;it the twelve judges, who all, (with the exception of Lawrence, J., who^"f * j[?" was absent,) held that the conviction was right, and that the receipts, t.-iinKwith- as stated, were within the statutes. Grose, J., in deliverin'' their oijinion, ",' ^^'*'„^ '^ wCO, li C. said, '' The facts in the case prove that these receipts were forged ; and 2.^. ' '' that they purport to have been given to Collinridge by workmen for moneys paid by him to them for work done /or the commissiuncrs of the navy hoard. The persons, therefore, employed for that purpose by him, were employed not solely on his account, but on account of the king ; and these receipts, if genuine, would have been legal vouchers for his account, and would have entitled him to a discharge from the navy board. It is clear, then, from the facts proved at the trial, and from the verdict of the jury, that these receipts are forged receipts, and that they were knowingly uttered by the prisoner with intent to defraud the king."(>-) *In the foregoing case a point arose, as to the right of the prisoner to *513 put the prosecutor to his election, on an indictment stating various for- As to tho gerics. The first count of the indictment charged that the prisoner ut- "^jl^^^^^fj, ^^ tered, &c. a certain forged acquittance and receipt for money (setting it i.ut the forth), also a certain other forged acquittance and receipt for money r''"j'^c"*o'" (also sotting it forth) and stated in like manner above twenty other re- tion on au ceipts of different dates, for different sums, and purporting to bo signed in'l'^tment by different persons, with intent to defraud the king. And before any various witnesses had been examined, the counsel for the prisoner submitted to f^rs^""- the court, whether the prosecutor ought not, under the circumstances of this case, to elect on which of the several receipts stated in the first count of the indictment he intended to proceed, and be restrained from pro- ceeding on more than one of them ; as amidst such a variety, it would otherwise be almost impossible for the prisoner to conduct his defence. But Le Blanc, J., referred to the indictment, by which it appeared that all the receipts stated in the first count were charged to have been uttered at one and the same time ; and as this single act of uttering the receipts would, if clearly proved, constitute only one offence of utferiny, he refused the application. The proof was, that the several receipts stated in the indictment were uttered at the same time in one bundle, given by the prisoner to the solicitor of the navy board. And when the case was submitted to the consideration of the twelve judges, they were all of opinion that the application to put the prosecutor to his election was properly refused. Q?) It is not an offence within tlie 1 Wm. 4, c. 6G, if a party writes on Tf a party the back of a bill of exchange, "received for 11. A.," and signs hisujo back of {r) Thomas's case, 1800. 2 Lcacb, SVY. 2 East, P. C. c. 19, s. 36, p. 934. And sec Jones and Palmer's case, ante, p. 384. {p) 2 Leach, 882. 513 OP THE FORGERY OF PRIVATE PAPERS, [BOOK IV. a bill of ex- own name. Nor is it an oftence within that statute to forge an indorse- "^Rocei'ved '"Ciit "poi^ ^ warrant for the payment of money. The prisoner was for R. A." indicted for forging and uttering, knowing it to be forged, an indorse- and signs jq^q^ on an instrument which was in the form of a bill of exchange, in Ills own tj ' name to it, which one Aickman was the payee, and the indictment contained counts this is not (.Jj^rgiug the forging and uttering of an indorsement upon an order for the receipt payment of money, an indorsement upon a warrant for the payment of within the money, and a receipt on an order for the payment of money. It appeared 66. It i's ^^^^ ^^^ prisoner took the instrument in question with the following in- notany dorsement upon it, "Received, 11. Aikman," to the banking house withi*n that ^^^^® it was payable, and presented it for payment; but the clerk, per- statuto to ceiving that the name of the payee in the instrument was spelt ^Aick- forge an ^^> -^^ ^ j ^^ j ^j^ indorsement was spelt ' Aikman,' without indorse- ' . i • i i • i i • i ment upon any c, objected to pay it : upon which the prisoner altered the indorse- awiirrant ment thus, ''Received for R. Aickman, G. Arscott;" his own name the pay- being Gr. Arscott. Bolland, B " The offences charged in the indict- ment of ment are, the forging an indorsement or an order for the payment of ™oney. money, and also the uttering of the indorsement, and the forging and uttering a receipt on an order for the payment of money. On looking at the act of parliament, the sections which apply to this case appear to be the third and the tenth. By the third section, several substantive acts of forgery are mentioned. (His lordship read the section through.) Now, if this had been charged as a bill of exchange, instead of an or- *514 der for the payment of money, there would *not have been any diffi- culty. But the section does not include in the offences enumerated, the forging of an indorsement on an order for the payment of money. The tenth section applies to the forging and uttering of receipts. But the words used are, ' any acquittance or receipt, either for money or goods, or any accountable receipt either for money or goods or for any note, bill, or other security for payment of money.' That section, therefore, will not apply to those counts which charge the pri- soner with forging and uttering a receipt on an order for the payment of money." Littledale, J. — " There are three sets of offences charged in the indictment ; the first relates to an order, the second to a warrant, and the third to a receipt. It is not necessary to consider the first ques- tion that was raised, whether the prisoner uttered the forged indorse- ment upon the instrument or not, as those counts of the indictment which charge the offence are not properly framed, as they do not pro- perly describe the instrument. The act of parliament, which consoli- dates the acts relating to forgery, says : (his lordship here read section 3, and observed) — Therefore it is made a felony if any person forges or puts off any bill of exchange, or any promissory note for the payment of money, or any indorsement on either of them. If the charge had been the uttering a forged indorsement upon a bill of exchange, it would have met the facts of this case; but that is not the offence charged in the indictment. Let us then see what the act of parliament provides with respect to warrants and orders. The legislature has made no pro- vision for forging an indorsement on any warrant or order, but for forg- ing the instrument itself; and I think that the act of parliament was purposely so framed, because warrants and orders do not pass by in- dorsement, but bills of exchange and promissory notes do. It is very probable that the person who drew the indictment, not seeing in the instrument so many days or months after date, did not think it was a CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 514 bill of exchange, antl therefore charged the prisoner with uttering a forged indorsement on an order for the payment of money. Now, this is not an offence within the act of parliament; and I think you cannot call the indorsement itself an order for the payment of money, because the word ' indorsement' is used in the act, and the act meant a distinct instrument in mentioning a warrant or order. Then as to the tenth section, the question is, whether this is forging a receipt fur tlic pay- ment of money? The words are — 'lleceived for 11. Aickman, G. Ars- cott.' I take it, tliat to forgo a receipt for money, is writing the name of the person for whom it is received. But in this case, the acts done by the prisoner were, receiving for another person, and signing his own name. Under these circumstances the prisoner must be acquitted upon this indictment. "(^y) It now remains to notice the cases which relate to the instruments c'onstruc- which may be considered as icuryants or orders fur the txu/mcnt of *'"" ^^ '" •', ,. ^ 7 / N wnrrantt or moneij or deUcert/ oj yoods\q) onUrs for It appears at one time to have been contended that the statute was rjiymeut of confined to commercial transactions; but several cases havedccidcd that ™''°*^^' •i • , x: 1 ^ \ The statute It IS not so confaued.(?-) _ _ _ is „ut con- *It has been frequently holden, that instruments which in the com- fmuJ to mercial world have peculiar denominations, may yet be laid as war- ''"ni'np''c'»' ^ > ^ J '> _ _ transac- rants, or orders for the payment of money, if they fall within those iion.«. terms, and are such in effect. So that a bill of exchange may be laid *515 as an order for payment of money,(s) and in one of the cases where ^'"'' "^ this point was considered by the judges, they were unanimously of i[.\..^ may bo opinion that it was well laid; and, it was observed, that every bill of l:>i ii r "I ^1 1 1- r i\ 1 liiivo been coniiiiand the payment oi the money or direct the delivery oi the goods, ^^jy j^^ and to be coiupulsorv on tlie person having possession of the subject '-no imving matter of it; but only purport to be a request to advance the money or ""ji^'i^"^^*" supply the goods on the credit of the party applying, which the other i.ayuRiit, may comply with or not, as he sees proper, it is not a warrant, or an '^'-"• order within the statute. (^) Thus it was holden that a note in the name of an overseer of the Mitchell's poor to a shopkeeper, desiring him to let the prisoner have certain goods, ^""^j'.jto ^^ which he would see him paid for, was not a warrant or order fur the a •^hop- delivery of goods within the repealed statute. Nine of the judges, on ''j^"^'|^'-|[^'J' a conference, were clearly of opinion, that the ■writing was not a war- of an over- rant or order for the delivery of goods within the act; considering that °'-''^'" "/" ^^® 7 1 1 • 1 poor, holu- thc words v:arrant or order, as they stand in the act, are synonymous, y,, ,n,t to and import that the person giving such warrant or order has, or at least '>" within claims an interest in the money or goods which are the subject-matter ^j^g^Jy^j.^ of it, and has or at least assumes to have a disposing power over them, and takes on him to transfer the property, or at least the custody of them to the person in whose favour such warrant or order is '''made. *517 And though this case must fall within the mischief, yet, in the con- struction of an act so penal, the strict letter of it ought not to be de- parted from.(;;) So a note to a tradesman, requesting him to let the bearer have cer- Williams's tain goods, has been holden not to be an order for the delivery of goods ^^^^^fg ^^^ within the statute, it appearing that the person whose name was forged tiaaesman in the note, though a customer of the tradesman, was not the owner of, '■«i"^'=^|"S 11 ^ 1 • -1 1 • • 1 • ^'"" ^^ ^^^ nor had any special interest in the goods in question, or any others in the bearer the tradesman's hands, nor had any authority to send any such order ifhavocor- . , , 1 • / . tain goods. it had been genuine. («) Upon similar grounds it was ruled, by a very learned judge, that a Hush- forged order for the purpose of obtaining a reward fur the apprehen- ^^"^^ ^^ sion, &c., of a vagrant, was not a forgery within the statute, unless it forged or- contained the requisites prescribed by the Vagrant Act, 17 Geo. 2, ^. 5, ^^^^' ^^^ ^^° s. 5, now repealed. It appeared that the order was deficient in the re- obtaining a quisites described by that act, inasmuch as it did not purport to be under rpvard for seal, and it was not directed to the high constable of the Hiding; and honsiou of it was contended, on behalf of the prisoner, that such an instrument, a vagrant, supposing it to have been genuine, would have been perfectly inopeva- ^^^ \^^ -wMh- tive ; that it was nothing more than an order by a magistrate on theinthcsta- county treasurer, for the payment of a sum of money, over which thc|"*.^^' '^^^ magistrate had no control or dominion whatsoever, except by means of ficieut in the 17 Geo. 2, c. 5. On the part of the prosecution, it was contended ^^'^ '"•^T^'" {y) 2 East, P C. c. If), s. .37, p. 0.30. Reg. v. Newton, 2 Moo. C. C. R. u9,i>os/, p. .525. (r) Mitchell's case, Fost. 119. 2 East, P. C. c. 19, s. 37, p. 936. (rt) WillianLs's case, 177.'). 1 Leach, 114. 2 East, P. 0. c. 19, s. 37, p. 937. The point was subinitleil to the consideration of the judges, who all (De Grcj', C. J., and ^\'illes, J., ljcin;x absent,) agreed that the case was not within the statute, feeling themselves bound by the authority of Mitchell's case, note {z): but most of them said they should have dotibted the propriety of that determination, if it had been res intrgra ; but as it had been so long acquiesced iu they thought it could not be departed from. And accordingly, in a subse- quent case, a note in the following form, " Messrs. Songcr, please to send 10/. by the bearer, as I am so ill, I cannot wait on you, Ellz. Wcry ;" was holden not to be an order within the statute. Ellor's case, 0. B. 1784. 2 East, P. C. c. 19, s. 37, p. 938. 1 Leach, .32.3/ The prisoner was, therefore, acquitted of the felony ; but detained, and a subsequent sessions convicted of the misdemeanor. 1 Leach, 323. 517 OF THE FORGERY OF PRIVATE PAPERS, [book IV. sites pre- scribed by the statute which au- thorized it to be uiado ^518 Frond's case. Or- der upon the trea- surer of a county. principally, that since orders in the form of the order in question had been generally drawn and acted upon in the Riding of the county in which this offence was committed, it was not essential, to bring the pri- soner within the statute, that the order should comply with the requi- sites of the 17 Geo. 2, c. 5 : and that it was sufficient that it pursued the usual form, being thereby capable of being the instrument of fraud. But Bayley, J., said, " To bring the case within the statute, the order must be such as, on the face of it, imports to be made by a i^erson who has a disposing power over the funds. In this case, the party looking at the act must have known that the order was not made by one who had a disposing power over the funds in bis bands. The magistrate, as an individual, had no right to make such an order, and the trea- surer had no right to consider it as an order which he was bound to obey. The magistrate, in his character of a justice of the peace, had no authority to make such an order ; if he had any it was derived from the statute, but he had no power to make such an order as this, and if such a one had been made, the treasurer ought to have obeyed it." (i) *The same prisoner was tried and convicted at the same assizes for preseyiting the same order to the treasurer of the county pretending it was genuine, and obtaining from the said treasurer under such order the sum of 4?. lO.s. Qd. The indictment after charging that the prisoner, with intent to cheat, &c., the treasurer, presented the order, and that he knowingly, &c., pretended that it was a genuine order, proceeded, "And so the jurors, &c. say, that the prisoner on the day and year, &c. did obtain the said sum of 4?. 10s. Ge?. ; but the intent to cheat and defraud the said treasurer was not stated in this part of the indictment, nor was the obtaining charged to have been effected knowingly and designedly. And upon a case reserved the judges held the indictment bad.(c) By the 48 Geo. 3, c. 75, a justice of the peace may order the treasu- rer of the county to pay every churchwarden, overseer, headborough, or constable, the expenses he has incurred in burying any dead body that has been cast on shore. A justice's order was forged, stating that a diad body had been cast on shore in the parish of A., that I. S. had made oath before the justice that he had laid out 3?. 5s. in the burying such body, and requiring the treasurer to pay that sum. The indictment was for forging and uttering, &c. this order; and was founded on the 7 Geo. 2, c. 22, and the prisoner's counsel objected that the order in ques- tion was not properly a warrant or order for the payment of money with- [h) Rushwortlrs case, cor. Baylej^, J., York Sum. Ass. 1816. Rnss. & Ry. 317. The pri- soner was accordingly acquitted upon that and another similar indictment. In Graham's case, 0. B. Oct. 1778, 2 East, P. 0. c. 19, s. 41, p. 945, ante, p. 514, note (r), the prisoner was indicted for a similar offence, and an objection taken on his behalf was, that the 18th sec. of the 17 Geo. 2, c. 5, expressly subjected the party forging such an order to a penalty of 50/., which must be considered as a repeal of the 7 Geo. 2, c. 22, as to orders of this decision. And it is observed in 2 East, [uhi supra,) that this objection seems to have been entitled to a different consideration from what it is stated to have received ; as the prisoner was, notwitlistanding, convicted, and received judgment. And a qu. is made as to what became of the case. It should, however, be observed, that this 18th sec. of the 17 Geo. 2, c. 5, enacted, that " in case any such petty constable or other officer or gOA^ernor or master of any liouse of correction, shall counterfeit any such certificate, receipt, or note, or make or knowingly permit to be made any alteration in any such certificate, receipt, or note, he shall forfeit the sum of fiftj^ pounds ;" and that it does not appear from the report that the prisoner, Graham, was a petty constable or other ofiBcer, &c. A still better answer to the objection seems to be, that the order in question was neither a certificate, receipt, nor note, within the 18th sec. of the 17 Geo. 2, c. 5. (f) Rex V. Rushworth, cor. Bayley, J., York Sum. Ass. 1816, Russ. & Ry. 317. CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 518 in that statute. He contendoJ that it was not in its purport a coiupul- sory or even a valid order within the 48 Geo. 3, c. To, a.s it did not ap- pear ou the face of it that the person who was stated to have laid out the money, and to whom repayment thereof was ordered, was one of the officers of the parish or place to whom, by that statute, a justice of the pL'ace has authority to order a repayment. And he contended also that the order must be compulsory, which this was not, because it did not state all that wiis suflicient to entitle the person to the payment of the money : and further that the instrument also purported to be an or;e bo made consideration they at last agreed that it was a forgery. They thought'':^' "P'-'''*'^" it quite immaterial whether such a man as Vennest existed or nut; or tush with if he did whether he had kept cash at the banking-house of Messrs. ^^^^ '^'^"■ Neal and Co. ; and that it was sufficient that the order assumed *those ^ro-i facts, and imported a right on the part of the drawer to direct such a tran.sfer of his property. (A-) The indictment charged the prisoner with forging a certain order for xho order the payment of money, as follows : — cLargod as ougljt to St. Ann's Union. imi-urt that " Mr. Thomas, " ^T^ ., j.iivyiii.i.3, ^ ^ making it " Sir, — You will please to pay the bearerj-for llichard Power, has a dis- tbree pounds fur three weeks due to him, a country member, and vou'^''"'""'','!"^" r 7 J ? J QY over tho will much oblige your's, kc. J. Beswick. subject of Feb. 21, 1829. 2, Brown's Buildings, Stanhope 'S'^^^c^." the order, "To Mr. Thomas, Gray's Inn Lane." ought to be jjroof that with intent to defraud John Thomas, the said Thomas, on whom the jnwho's^e"^ said false, forged, and counterfeited order for payment of money was name it is made, then and there bein"; intrusted with, and haviunr in his hands '"'", *^„ ^'^ ' . o y _ o such power. and possession, as the landlord of a certain public-house, known by the name of the " Crown and Barley Mow," in Gray's Inn Lane, a certain large sum of money, to wit, the sum of thirty pounds, belonging to "\V. Ireland and others, members of a Friendly Society called the St. Ann's Union, meeting at the said public-house, for the purpose of enabling the said J. Thomas to pay, and that he might pay all orders for i)ayment of money due to any of the members of the said Society, according to the rules and regulations thereof. Second count for uttering and publishing as true, a like order for payment of money, well knowing the same to be false, forged and counterfeited, with intent to defraud the said J. Thomas. Third, same as second, with intent to defraud J. Beswick. Fourth same, with intent to defraud W. Ireland and others. J. Thomas was the landlord of the Barley Mow, Gray's Inn Lane. A society called the " St. Ann's Friendly Society," was holden at his house, of which Mr. Beswick was the secretary: there was usually money in Tho- mas's hands to pay any demands that might be made by Mr. Beswick's orders. On Saturday, 21st February, the prisoner produced a check to Thomas, at his house, and said he brought it from Mr. Beswick's, for three pounds, for a country member, who had broken his arm. Upon looking at it Thomas saw it was not Mr. Beswick's handwriting, and told him so: he said he knew that; that Mr. Beswick, being an undertaker, was out of town at a funeral, and that Mrs. Beswick directed her son to write it; Thomas, accordingly, gave him the three (/) The doubt was stated to have arisen on what was stated in Mitchell's case, ante, p. 516. (k) Lockett's case, 0. B. 1771, Trin. T. 1774. 1 Leach, 94. 2 East, P. C. c. If), s. 38, p. 940. S. P. in Abraham's case, 1774. 2 East, P. C. c. 19, s. 38, p. 941. The prisoners in each case received judgment of death accordingly. 521 OF THE FORGERY OF PRIVATE PAPERS, [bOOK IV. pounds. Mr. Beswick proved that the handwriting in the check was not his J and that there was no member of the name of R. Power in the society. On the 21st of February, Beswick lived at No. 2 Brown's Buildings, Stanhope Street, Clare Market. It was proved, that no au- thority was given to any one to write or issue the check ; and that it was not written by Beswick's son. W. Ireland said he was a member of the St. Ann's Society (there were many other members), that he sub- scribed to the funds of it; if taken ill, a member received money from the funds of the society to support him. There were no rules or regu- *522 lations put in, *or any evidence of their having been enrolled. The Recorder suggested that, upon the authority of Mitchell's case,(M) the prisoner ought to be acquitted, as for want of the rules and regulations, of which no parol evidence could be given, there was no evidence to prove that Beswick had any disposing power over the money in the hands of Thomas. Littledale, J., and Gaselee, J., however, thought the better way was to leave the case to the jury, and reserve the point suggested for the consideration of the judges, if the prisoner should be convicted. The jury found the prisoner guilty on the counts for utter- ing, and upon a case reserved, all the judges (except Gaselee, J., and Park, J.) thought that this was not an order on the face of it; and that the conviction was therefore wrong, (o) The party Where the forged instrument does not purport on the face of it to be nameTh^ an Order, and the party in whose name it is drawn had not the right or instmmeut power to ordcr the payment of the money at the time when the instru- is drawn n^ent is drawn, it is not an order for payment of money within the 1 IlillSt il'lV6 i «/ %f the right tu Wm. 4, c. 66, s. 3. The indictment charged the prisoner with forging command qq order for the payment of money, which was set out in the first count me^nt, or it ^^S follows :— is not an "nthef '^" Monmouth, June, 9, 1842. Wm. 4, c. " Mr. Fisher, I should feel greatly obliged to you if you will please ' ^" ''■ to send by the bearer the sum of three pounds, as I have had a large quantity of bones this week, and the man from Coleford is coming in to-morrow with 10 cwt. I have about one ton now. "Yours, Thomas Davis." " Mr. E. Fisher, Lanwarne." with intent to defraud J. E. Fisher. The instrument was described in all the succeeding counts generally as an order for the payment of money. Upon the trial, it appeared that the prisoner had written the letter and forged the signatures of Davis thereto, and that Fisher, on the the faith of its being genuine, had paid the 3^. to the bearer of the same. Davis was a waterman living at Monmouth, and was in the habit of collecting bones throughout the adjoining country, and sending them to Fisher as he collected them, generally by a wagon-load or three tons at a time. Davis did not wait till he delivered the bones, before he got paid, but drew upon Fisher as he was collecting the bones, but at the time the letter was written, Davis had overdrawn, and had no money due to him from Fisher. The jury found the prisoner guilty, but a doubt occurred to Lord C. J. Tinial, whether this could be considered an order in) Fosier, 119, ante, p. 516. (o) Rex V. Baker, R. k, M. C. C. R. 231. Park, J. A. J. was absent. CHAP. XXXIX.J SECURITIES AND DOCUMENTS. 522 for the payment of money within the meaning of the 1 Wm. 4, c. G6, s. 3, and his Lordship submitted that question to the consideration of the judges, and all the judges present agreed that this was not an order for the payment of money, the party who made the order not having any right or power to make it.(jj) *A charge of forging an order for the payment of money is supported *523 by proof of a foreign letter, requesting a correspondent of the supposed A forei;,'n writer in England to advance money, it being proved that such letters , uestin^" are in the course of business treated as orders. The prisoner, a German, orros-p.n- went to IMessrs. Rothschild with the following letter, purporting to come *'*"*"' ^^ '"^" ^ ^^ viincc iDO- from Cologne from Messrs. Schaaffhauscn, who were correspondents of noy maybe Rothschild, whose house had money of S. in their hands. He presented s'"'<^'i '" ^^ himself as Dr. F. A. Stern. l^chlSen " Cologne, IZd March, 1838. aresotreat- " Gentlemen, — I beg to introduce to you Dr. F. A. Stern, who in-^yu"e\jf tends stopping some time in England for scientific purposes. You would l'Ui=iiK'ss. therefore much oblige me, if you could acquire him the necessary access to public buildings, such as libraries, &c. I also request you in case he should be at any time in want of money to pay him at his desire to the extent of £60 sterling, as he is accredited with me, and I am conse- quently prepared to pay such an amount against his receipt. It will in similar cases be my zealous endeavour doubly to outweigh all the kindness you may be pleased to show him, and I have the honour to remain, &c. "A. ScnAAFFHAUSEN." When the prisoner presented this letter, he described himself as the Dr. Stern therein mentioned, but at that time no money was paid him : but in two days he called for 30?. and it was paid him on the credit of the letter. He brought the following receipt with him : " For accpunt of Mr. A. S. of Cologne, to have received of Rothschild and Sons the sum of 30?. Attests '< Dr. F. A. Stern." He again went in two days more with another receipt for 30?. more, and got that money; 60?. altogether. It was proved that when such a paper as this letter, is brought to ^lessrs. Rothschild from a correspondent, who has money in their hands, the person who brought it is paid whatever he claims, not exceeding the amount mentioned. If such person does not require the whole, the house writes upon the letter whatever, is paid, and they consider such a document exactly as they would a bill of exchange, and equally obliga- tory on them to pay to the extent of the fund in hand. The question was, whether the above document was a warrant or order for the pay- ment of money, within the 1 Wm. 4, c. 66, s. 3 : and, upon a case re- (/>) Reg. V. Thom.is Roberts, Monmouth Sura. Ass. 1842, and Mich. T. 1842. Alderson, B.. Patteson, J., and Coleridge, J., were absent. This report is taken from the ease submitted t<> the learned judges, with which the editor was favoured by the Lord Chief Justice. Reg. t. Rogers, nntr, p. :{73, was referred to before tiie judges, wiiere an indictment for forging a war- rant for the payment of money under similar circumstances was held sufficient, because the in- strument would have been a voucher for the payment. Upon Reg. v. Rogers being cited at the trial, Tindal, C. S., said, " In that case the instrument was charged as a warrant. Thf doubt I feel is, whether such an order as tliis, made upon a person wlien there are no funds in his hands, is an order within the statute. Suppose Fisher had said, "I will not p.ay the money, I will have the bones first,"' Davies would have had no remedy against him. A biinker who had money in his hands could not say so. The question is whether this instru- ment is an order for the payment of money. It might be a very good warrant for the pay- ment of it." MSS. C. S. G. Vol. II.— 34 o23 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. served, the judges were unanimously of opinion that the facts with the paper warranted their considering this document as an order. (^9) An order to An instrument contained an order to pay the prisoner or order a sum pay a sum ^f money, being a month's advance on an intended voyage, as per of an in- agreement with the master, in the margin of which the prisoner had tended written an undertaking to sail in a certain number of hours, is an order ^oj-ag . £^^ ^^^ payment of money, within the 1 Wm. 4, c. 66, s. 3. The pri- soner was indicted for uttering the following order for the payment of money : — *524 *u Port of London, May Is/, 1834. " Three days after the ship Mary Ann sails from Grravesend, please to pay toWm. Bamfield or his On receiving this check order the sum of four pounds five shillings, being I agree to sail in the ship ji>i • ^i? e • l ^ ^ Mary Ann, and to be on ^ month s advance in jiart 01 wages or an intended board within sixteen hours voyage to Quebec in the ship hereinbefore men- che'^k."^' '^''*' °^ *^'' tioned, as per agreement with your obedient ser- " May 1st." vant, << G. Martin, Master." '< To R. Ray, Esq. << No. 48, Fore Street, City." with intent to defraud E. Child and another. The prisoner was con- victed, subject to the opinion of the judges whether the order set forth in the indictment were an order for the payment of money within the meaning of the 1 Wm. 4, c. 66, s. 3, and at a meeting of all the judges, (except Lord Lyndhurst, C. B., Park, J. A. J., and Bolland, B.) this case was considered, and the conviction was unanimously held good.(5') v/here an Where the sum mentioned in an order for the payment of money, is indictment truly stated in an indictment, it is no variance that by the course of .'um men- business of the bank where the order is payable, the bank would pay tioned in a that ^m together with the interest then due upon it. An indictment (je°, it is no contained eight counts, of which the following only became material, variance The third count charged the prisoner with feloniously forging '< a certain course ^f ^warrant and order for the payment of money, (to wit,) a warrant and business order for the payment of 85^." The sixth count described the instru- wher*^"^" ™^^* ^^ "^^ acquittance and receipt for money, (to wit) for 85?." The payable seventh and eighth counts were for uttering forged instruments des- would pay cribed as in the third and sixth counts. It appeared that John Mann, together i^ June, 1839, had deposited the sum of 85/. in the hands of Jonathan with inter- Backhouse and others, who constituted the Darlington Bank at Stock- whetherTho *on, and that on that occasion he received from the bank an accountable sum stated receipt in the following form : g " No. F. 266. Darlington Bank, Stockton. I 12th, 6 M. 1839. -g^ Received of John Mann ^ii Eighty-five pounds "S 2 to his credit, £ For Jonathan Backhouse & Co," ~ "£85. Frederick Backhouse." ^ " Entered, F. B." {p) Reg. V. Raake,» 2 Moo. C. C. R. 66. 8 C. & P. 626. \q) Rex V. Bamfield, R. k M. C. C. R. 416. » Eng, Com. Law Reps, xxxiv. 557. CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 524 Id October, 1840, the prisoner having this receipt in his poasesaion, went to the bank, and representing him.self to be John Mann therein mentioned, wrote the words <' John Mann" on the face of the receipt, and delivered it to the bankers, who paid him the sum of 87^. 17s. Gt/., being the amount mentioned in the receipt with *intercst. By the *525 course of dealing between the bankers and the customers, interest was payable on their accountable receipts, and the bankers ou having a re- ceipt delivered back to them with the name of the party who had de- posited written upon it by him, treated it as an order for the payment of the amount deposited with the interest then due, and paid such amount and interest accordingly. It was objected, that on the evidence these counts were disproved ; that the document itself, independent of the evidence, had no meaning, and that the evidence showed it to be an order or warrant not for 85/., but for 87/. 17.s. Gd. For the prosecution it was submitted, that it was not necessary to state the amount at all, and that being stated under a videlicet, it need not be proved precisely ; and, upon a case reserved, after a verdict of guilty, upon the question whether the evidence supported the third, sixth, seventh, and eighth counts, or cither of them, the judges held the conviction right.(r) The prisoner was indicted for uttering a forged order for the delivery A prUonoi of goods, which was set forth as follows : — ^^ confe?.-;- ing au in- dictment ('Jldu 11, 1838. foruttcrii.K f • 1 " Mr. Lanir, please to send one piece of lead by the bearer 12 long"' i"'"*^ ,. c I r J o onlerougli! 16 wide. "George Kilby, Queenborough." not to bav.< judgment passed, if with intent to defraud, &c. The prisoner pleaded guilty; on looking >' '^PP^"'"*' into the facts, it occurred to Bosanquct, J., that they did not show any person ** right in Kilby to make an order on Lang for the delivery of Ica^, and whose that the instrument set forth in the indictment did not import any thing "o^Ted' had more than a request, which Lang might or might not comply with, as no author- he mijifht think fit, and ho respited th'e sentence in order to bring the "y '" "»'J<''". ° ... . . and tlio case under the consideration of the judges, who held the conviction writing wrong, and ordered a fresh indictment to be preferred for forging, &c. """rdy P'"- . o o' ports a re- a request for tho delivery of goods, under the 1 Wm. 4, c. GG, s. 10. (s) quest. We have seen that it has been held that where an indictment des- cribes a warrant for the payment of money, under the 2 «fc 3 Wm. 4, c. 123, s. 3, averments to show what the instrument is, are not necessary, but it is a matter of evidence whether the instrument comes within the description given of it by the indictment. (/) We have also seen, that an instrument may be described as a warrant If the cL:i and order, if the instrument be in fact both a warrant and order : a war- T'''^''^'"'''^*" ' . . ' instrument rant authorizing the banker to pay, and an order upon him to do so.((a)i,c .«uch a.s And in a late case, where the prisoner was indicted for stealing four '" '"^ '*""' " po.st-offico money orders, which were described in some counts as '' war-n,„i „rder: rants and orders for the payment of money," and it was objected that '^ "^^ly ^'.^ such description was not correct, because it was uncertain; the judges ^"i^n^anij,. upon a case reserved, were all of opinion that what was meant by the diotment. [r) Reg. V. Atkinson,* 1 C. k Mans. .^25. («) Re-,'. V. Newton, 2 Moo. C. C. R. 59. (<) Reg. V. Rogers,*" C. & P. 41, ante, p. 278. \u) Re.\ v. rro\vthicr,<= 5 C. & P. 31G. See also Reg. v. Atkinson, supra. » Eng. Com. Law Reps. xli. 181. ^ lb. xxviii. 28. ' lb. xxiv. 337. 525 OP THE FORGERY OF PRIVATE PAPERS, [BOOK IV. indictmcut was, that the prisoner stole four instruments, or four valu- able securities, each of which was both a warrant and order, and putting "526 that construction upon the *indictment, they were of opinion that the instrument stolen was a warrant and order. They were of opinion it was an order as well as a warrant, because assuming the post-master bad paid the order, the document itself delivered up to him would be a warrant, which would be a discharge from the person to whom he had %. to account for the post-office money. Therefore they were of opinion ^ that the counts of the indictment were not uncertain, meaning that these instruments had both characters, (mm) As to the With respect to the form of the order in other respects, it appears specifica- jjQ^ jq jjg necessary that the particular goods should be therein specified, goods in provided it be conceived in terms intelligible to the parties themselves, the order, iq whom such order is addressed. Jones's In a case where the prisoner had been convicted of forging an order case. Or- £gj. ^j^g delivery of goods to the following purport: ^'Sept, 23d, 1764. following Sir, please to deliver my work to the bearer, Lydia Bell, Fleet-street, form : Londou," with intent to defraud the wardens and company of gold- deliver my smiths ; and it appeared that the goods in question were articles of tcork to the plate, which had been sent by Messrs. Bell, a silversmith, to Groldsmiths' earer. jJaU^ to be marked ; and that the form of the order was the same as was usually sent upon such occasions, except that in strictness, and by the rule of the plate office, the several sorts of work, with the weight of the silver, ought to have been mentioned in it; the judges affirmed the conviction upon reference to them, after a motion to arrest judg- ment. But the prisoner was pardoned on condition of transporta- tion. (i;)-j- Au order The order will not be the less the subject of forgery, on account of ^h\ ^h*^^^' ^^^ °°*' ^^i'^g available by reason of some collateral objection, not ap- reason of pearing upon the face of it. Thus, where the prisoner had been con- some col- victed for fore-ins: an order for the payment of prize-money, and it lateral ob- , ,, ,'=,,'= , , x- f r i j jection may ^PP^arcd that the party whose name was torged was a discharged yet be the seaman, and was, at the time the order bore date, within seven miles of forserv° *^^® P^^** ^^^^^ ^^^ wages were payable; under which circumstances his genuine order would not have been valid, by the provisions of the 32 Geo. 3, c. 34, s. 2, unless made in the manner therein prescribed; the judges held the conviction to be proper, the order itself purporting on the face of it to be made at another place beyond the limited dis- tance. (ic) Requests In conscqucnce of certain forged instruments having been held not to for the de- come within the words << warrant" or order" in the 7 Geo. 2, c. 22, livGrv of -* goods. iiow i-epealed,(a:;) the word " request" has been introduced into the 1 (uu) Reg. V. Gilchrist,'- 1 C. & Mars. 224. {v) Jones's case, 1764, 1 Leach, 53. 2 East, P. C, c. 19, s. 39, p. 941. (w) M'lntosh's case, 1800, 2 East, P. C. c. 19, s. 39, p. 942. 2 Leach, 883. Ante, p. 353. The same case is cited for another point, ante, p. 515. See Reg. v. Pike, 2 Moo. C. C. R. TO, ante, p. 353. (x) See the cases, ante, p. 516. I |Under a statnte of Connecticut, providing a punishment for forgery of certain enume- rated instruments, " or any other writing to prevent equity and justice ;" it was held that forging the following order was within the statute, viz. : "Messrs. D. & D., please let the bearer trade ten dollars out of your store, and oblige yours," &c. 5 Day, 250, State v. Coo- per.} » Eng. Com Law Reps. sli. 126. CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 526 "Wm. 4, c. 66, and the following cases have been since decided relative to requests for the delivery of goods. An indictment for forging and uttering a request for the delivery of a request ffoods, set out the request in each count in the words and fi^jures fol- f"' t^ic do- f . ' 1 ° livery of lowing : — goods need not bo ad- ,, r\ »i dressed te " Gentlemen, ^„3, j.^^ti- "Be so good as to let the bearer have h\ yards of blue to pattern, cular per- and send the drab cloth up, in the whole piece, on Monday *)iiorniiig, ^*^"" by 10 o'clock; also a yard measure, as I do not know what quantity will ^-' be wanted, and you will oblige <■'■ W. Reading, Mortimer-street." " N. B. Let the drab be good, as it is for the inspection of a gentle- man. The jury found the prisoner guilty, and, upon a case reserved upon the question, whether as the request was not addressed to any individual person by name or description, the request set out in the indictment was a request for the delivery of goods within the words and true intent of the statute, the judges present held the conviction right. (jc\r) So where the prisoner was indicted for forging a request for the de- ^^^}^ point livery of goods with intent to defraud Messrs. Warner and Co., and the j^j^j ^jj^^. instrument forged was as follows : — An instru- ment mere- ly Sjiecif)'- " Aug. 3, 1839. One 16 in. helmet scoop; one 4 quart oval kettle, ing the "JAS. HaYWARD." go'"lsma.y be shown to be a request And it was proved that the prisoner had been in the employ of Hay- ^y »be cus- ward, an ironmonger, who had had dealings for some years with 3Iessrs. trade. Warner, and that once or twice, during the time the prisoner was in Hay ward's employ, he had taken orders from him to Messrs. Warner. It was also proved by a person, who managed the business of jNIessrs. Warner, that it was the custom of their business to deliver goods on such papers as the one in question ; it was constantly done every day, and being asked by the court whether he had done so as between the firm and Hayward, the witness replied, " certainly ; it is the ordinary form of a request to deliver goods to Mr. Hayward, or to any body." Upon a case reserved upon the question, whether such a paper amounted in law to a request for the delivery of goods within the meaning of the statute, the judges were of opinion that it did, although it was not ad- dressed to any one. (3/) Where on an indictment for forging and uttering a request for the delivery of goods with intent to defraud Bradley, it appeared that Bradley was a butty-collier and Jones a grocer, and that the course of dealing between them was for Bradley to write a list of names, with an amount against each name, which denoted that Jones was to supply that person with goods on Bradley's account to the amount set opposite (xx) Rex v. Carney, R. & M. C. C. R. 351. Tindul, C. J., Lord Lyndhurst, C. B., and Taun- ton, J., were absent. {y) Reg. V. Pulbrook,» 9 C. & P. 37. * Eng. Cora. Law Reps, xxxviil 26. £ s. d. 12 1 5 5 8 15 0" 527 OF THE FORGERY OF PRIVATE PAPERS-, [bOOK IV. his name; and that tlic prisoner took a paper to Jones in the following form : " 1841, Oct. 22. Eliz. Bradley . Will. Jones .... J. Prise Jno. Baylcy Peter Stapleton Simeon Walters . Here followed ten more names and a sum against each, and the sums were cast up 71. 4s. Qd., which was the correct casting if the sum oppo- site the prisoner's name had remained 5s. as it originally stood, but he had put the figure 1 before the 5 and made it 15s. Opposite the sum 71. 4s. (id. was the prosecutor's signature, '< John Bradley." ^ Ludlow, Serjt., having consulted Patteson, J., stated that that learned judge was of opinion that although this was not a request for the delivery of goods on the face of it, yet it might be shown by evidence that the course of dealing between the parties was that goods should be delivered on the production of such documents as this; and that being shown, the paper was a request for the delivery of goods, and as such might be the sub- ject of an indictment, if a forged alteration was made of it.(y^) A request The prisoner was indicted for forging and uttering a certain request purporting f^^. ^1^^ delivery of ft-oods, which is as follows : — to be signed '' ° ' by a custo- mer of a ^( rp^j ^Yr. Edwards, Southgate-street, near the Cross. is within " Please to let bearer, William Gof, have spillshoul and grafting tool the statute. fQj, jjjg " Edward Ricketts, of Stantway." The prisoner went to the shop of Mr. Edwards, an ironmonger, and presented the paper to his shopman, who, knowing Mr. Ricketts of Stantway, allowed the prisoner to select a spade and grafting tool from bis master's stock. It was objected that this was not a request within the meaning of the 1 Wm. 4, c. 66. In the cases of warrants and orders it had been decided that the party must have a right to dispose of, or an interest in, the property, and the requests intended to be made the subject of forgery were requests for the delivery of goods, in which the party had at least an interest ; but it was held that this was a forged request for the delivery of goods within the statu tcfs) *528 *-^ forged letter requesting a tradesman to deliver goods to A. B. The sup- on his credit, and vouching for his ability to pay, may be described as posed wn- ^ request within the 1 Wm. 4, c. 66, s. 10, thou2;h the supposed writer (erofare- "■ . . . ^ ((uest need have no authority over or interest in the goods, and A. B. only be not have looked to for payment. The indictment stated that the prisoner uttered i-ity over or ^ certain forged request for the delivery of goods, which is as follows : — (yy) Reg. v. Walters,* 1 C. & Mars. 588. (z) Reg. V. James,^ 8 C. & P. 292. Gurney, B., referring to Rex v. Carney, s«jt?ra, note » Eng. Cora. Law Reps. xli. 320. ^ lb. xxxiv. 395. CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 528 «May24, 183G. interest in ^"> _ ^ _ nor nee 1 "I beg to inform you that the thing is right and true. Please to let the goods W. Thomas have such things, (meaning thereby certain goods which ^^^ j^^^ re-*'^ the said W. Thomas then and there wanted) as he wants for the pur- quest, pose. " Sir, I have got the amount of seven-and-twenty pounds for Maria Cole in my keeping these many years. " I am your servant, " Ann Davies." with intent, &c. A second count charged the uttering a certain forged request from one Aim Davies, for the delivery of certain goods to him the said W. Thomas, with intent, &c. The prisoner had come into the .shop of the prosecutor Clare, and asked him if he knew Maria Cole of Prendergast. Being answered in the affirmative, he said she was dead, that he was her son-in-law, that she had left 50/. or 60/., and that he wanted black. Clare asked him if he meant to pay for it ; he said he had not the money, but it was very safe. Clare however refused, ob- serving that he was a stranger to him, upon which the prisoner said " It's very safe. It's in the hands of Mrs. Davies of Prendergast." Clare knowing her, and knowing her to be a respectable person, said, " if you will get me her order for the goods you shall have them." Upon this the prisoner went away, and in half an hour returned with the note set out in the first count in the indictment ; upon the produc- tion of which he was furnished with such mourning things as he re- quired, which were put down to his credit. The note was a forgery, and Mrs. Davies had no money of Maria Cole's in her keeping. Coleridge, J., had doubts whether the paper-writing was properly a request for the delivery of goods within the meaning of the statute, and whether the charge ought not to have been for obtaining goods under false pretences, because Ann Davies had not, nor was supposed to have, any authority over, or interest in, the goods obtained, because the note did not purport in any way to charge, nor did it charge, her credit, and because the goods were supplied on the prisoner's own credit, and he liable for them. The prisoner's counsel also suggested that no goods were specified. But upon a case reserved, the judges present were unanimously of opinion that the instrument was correctly set out as a request, and the conviction was affirmed. (<^/) An instrument may be requested for the delivery of goods within *529 the statute, although it is also an undertaking to pay for them. An instni- *Tlie indictment charged the prisoner with forgin"; and uttering a a["'^°''™"'>' o 1 t3 o _ B beare- certain forged request for the delivery of goods," which was as foI-(iuest, al- lows : — though it be also an undertak- " Mr. Turner, — Please to let the lad have a hat, about 9s., and 1 will '"S '" P".> ;iUawer for the money. "Ed. Barrett." (a) Rex i\ Thamas,» 2 Moo. C. C. R. IG. Y C. & P. 851. Lord Abingcr, C. B., Williams. J., and Coleridge, J., were absent. Qii. -whether the inuuendo iu the first count bo not too large, there being no introductory averments. C. S. G. * Eng. Com. Law, Reps, xxxii. YGS. 529 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. imd it was contended that this was not a request for the delivery of goods, but a guarantie for the payment of the price ; and, if it were the subject of forgery at all, it should have been charged to be an un- dertaking for the payment of money ; but Gurney, B., held that this instrument was not the less a request for the delivery of goods, because it might also be an undertaking for the payment of money.(Z') A request The 1 Wm. 4, c. 66, makes no provisions at all for forging a request ment^of "^' for the payment of money, and such a request cannot be described as money is an undertaking, warrant, or order for the payment of money. Upon not witlun indictment for forgina; and uttering an instrument, described in dif- the 1 AVm. ^ /< ^ r i, c. 06. ferent counts as an order for the payment or money, a warrant tor the payment of money, and an undertaking for the payment of money, it appeared that the prisoner sent one Walker to Messrs. Seager's with a letter and the following memorandum : — Taunton, 1 ^q ^^h. 1841. I'ore otrestj j « Gentlemen, <' I shall feel obliged by your paying Mr. Bennett the sum ^ of 21 7s. Sd. and debiting me with the same. You will please have a receipt, and add the amount to invoice of order in hand. " I am, " Gentlemen, " Your most obedient servant, " T. D. Chappell." " Messrs. Seager, Evans, & Co., distillers, &c., " Millhank, Westminster.'" Messrs. Seager and Evans had a customer at Taunton, named T. D. Chappell, and Mr. Seager proved that supposing he had believed the memorandum to be the genuine handwriting of Mr. Chappell, he should have paid the money, and that it was the practice of their house, and in the course of business, to pay on these requests to country customers. It was objected, that this was not an offence within the 1 Wm. 4, c. 66, as the paper was neither an undertaking, warrant, or order for the payment of money, but at most only amounted to a request ; and forg- ing a request for money was not provided for ; and the prisoner having *530 been convicted, the judges *held, upon a case reserved, that the convic- tion could not be sustained. (ii) Where the Where an indictment for forging a request for the delivery of goods, indictment gets out such request, either the instrument must purport on the face of rcrues't It it to be a request, or if the words have not necessarily that effect, but are must either so understood in the trade, there must be an innuendo to explain them. (&) Reg. V. White,* 9 C. & P. 282. In Reg. v. Robson,'^ 9 C. & P. 423, (iu which the only point decided is mentioned, ante, p. 373), the instrument was in form, "Please to forward as address below, soon as possible, three mourning rings, sizes 0. P. 0., good weight and well ftcished ; three or four gold guard curbs, the last you sent me were not as I like them ; you may send one or two ladies' gold watches, fashionable patterns, I want them immediately," Ac, and it was taken for granted on all hands that this was a request for the delivery of goods. IJjb) Reg. V. Thorn,<= 1 0. & Mars. 206. The prisoner was afterwards convicted of a traud. » Eng. Com. Law Reps, xxxviii. 122. ^ lb. 174. <= lb. xli. 116. CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 530 The prisoner was indicted for uttering a certain forged request for the purport to delivery of goods, which is as follows : — ou tjjg ^^^o of it, or "Per bearer, ^ZT "2 y Counterpanes, jmntsto <' T. Davies, r''!*'^ t'^"* it IS so « 88, Aldffate. " E. Twell." with intent to defraud J. Lanison and others, the prisoner well knowing the said request to be forged. The prisoner who had been in the ser- vice of Mr. Duvies as porter, went on the 19th of November, 1830, to the house of Messrs. Lanison & Co., and produced to Smith, their ser- vant, the forged instrument in question. Smith, in consequence of the prisoner producing the paper, delivered the counterpanes to him. Davies was a customer of Lanison & Co., and lived at 88, Aldgate. Smith did not then know Twell ; he gave credit to the signature of Davies ; Twell was in the employ of Davies, and had authority from him in his ab- sence, to write an order for goods in his name in this form ; but Twell had no authority to employ any other person to write the same. The paper produced was not the writing of Davies or Twell, nor signed by the authority of Davies. Mr. Davies said they generally wrote their orders " Send per bearer," or "per bearer," and that such orders as these arc common in their business. It was objected that the paper produced did not purport to be a request, within the meaning of the statute ; no particular person was requested, nor was it directed to any particular person. The jury found the prisoner guilty, and said that they considered the paper as a request for the delivery of the goods mentioned in it, and that such papers were in trade so considered. But upon a case reserved upon the questions, whether the instrument was upon the face of it one of those instruments, namely, a request for the delivery of goods, the knowingly uttering of which is prohibited by the 1 Wm. 4, c. 66, s. 10, and particularly whether the want of any address was a valid objection; the judges present were unanimously of opinion that the words " per bearer" did not necessaily import " send per bearer j" they might mean " I have sent per bearer," and that there ought to have been an innuendo to explain them. They seemed to think the address not necessary, (c) Where goods are obtained by a forged request, with the 1 Wm. 4, c. The indict- 66, the indictment must be for forgery, and cannot be for obtaining them I'^'foVfor'- by false pretences. The prisoner was indicted for *obtaining goods by ing a rc- means of the followin"; false and counterfeit letter : — iiucst. *531 " Mr. Brooks, — Please let the bearer, William Turton, have for J. Koe, four yards of Irish linen and a waiscoat. "John Roe." "Jan. 6, 1833." (c) Rex V. Cullcn, II. k M. C. C. R. 300. This case is also reported in 5 C. & r.» IIC, and it is there stated that the indictment contained a count calling the instrument a forged or- der, and that the judges held that the instrument was neither an order nor a request within the 1 Wm. 4, c. GG, s. 10. See Reg. v. Pulhrook, ante, p. 527. In such a case there should at all evonts be one count describing the request in the manner adopted in Reg. v. Robson, ante, p. 373. C. S. G. » Eng. Com. Law Reps. xxiv. 235. 531 OF THE FORGERY OP PRIVATE PAPERS, [BOOK IV. Taunton, J. — <■ Hanson,* 1 C. & Mars. 334. This case was not published till chap. 32, s. 3- had been printed, or it would have been inserted in that section. C. S. G. lg\ Ante, p. 319, et seq. [hy See the general provisions of this act, ante, p. 408, el seq. As to principals in the second degree, accessories, hard labour, and solitary confinement, eee ante, p. 410. * Eng. Com. Law Reps. xli. 185. 533 OF THE FORGERY OF PRIVATE PAPERS, [book IV. tboroto, or using any such plato or littering or having any paper npou -whiL'li any part uf any such bill or note shall bo printotl ; transporta- tion for 14 years, &a. Having in possession plates of bankers in Upper Ca- nada, is within the preceding section. or promissory note for the paymcut of money issued by any such per- son or persons, body corporate, or company carrying on the business of bankers, without such authority, to be proved as aforesaid : or if any person shall, without such authority, to be proved as aforesaid, use, or shall, without lawful excuse, to be proved by the party accused, know- ingly have in his custody or possession, any plate, wood, stone or other material upon which any such bill or note, or part thereof, or any word or words resembling, or apparently intended to resemble such subscrip- tion, shall be engraved or made; or if any person shall, without such authority, to be proved as aforesaid, knowingly offer, utter, dispose of, or put off, or shall, without lawful excuse, to be proved as aforesaid, knowingly have in his custody or possession any paper upon which any part of such bill or note, or any word or words resembling, or appa- rently intended to resemble any such subscription, shall be made or printed; every such offender shall be guilty of felony, and, being con- victed thereof, shall be liable, at the discretion of the court, to be trans- ported beyond the seas for any term not exeeeding fourteen years, nor less than seven years, or to be imprisoned for any term not exceeding three years nor less than one year."(z) The prisoner was convicted at the Central Criminal Court, upon an indictment founded on the 1 Wm. 4, c. 66, s. 18, which charged that he feloniously, knowingly and without lawful excuse, had in his custody and possession a certain copper plate, upon which was engraved part of a certain promissory note for the payment of money, purporting to be a part of a promissory note of a certain company of persons carrying on the business of bankers in a certain country under the dominion of her majesty, that is to say, in the province of Upper Canada in North America, under the name and style of the president, directors, and com- pany of the Bank of Upper Canada, the said company of persons being other than the Bank of England, which said part of a promissory note is as follows : — u Ten " Ten 10 X No. X C Ten " Chartered by Act of Parliament. " The president, directors, and company of the Bank of Upper Canada promise to pay ten dollars on demand to the bearer for value received. "Cashier. "President. « Ten " X "Toronto 18." "Ten." j34 *The second and third counts were in the same terms, except that the second described the note as a promissory note for the payment of money of a certain body " corporate," and the third as a promissory note for the payment of money of W. Proudfoot and others. The pri- soner within the jurisdiction of the court, procured a copper plate to be engraved with the words and figures set out in the indictment, which are part of the form of the promissory notes, used and circulated by the Bank of Upper Canada ; the plate so engraved was received by the prisoner under circumstances pregnant with suspicion that it was ob- tained by him for a fraudulent purpose. W. Proudfoot was the presi- [i) See the last note. CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 534 dent, and T. G. Ridout the cashier of the Upper Canada Bank, the notes of winch are usually signed by those persons, and the prisoner had endeavoured to obtain from another engraver a fac simile of their signatures, which he had cut off from the Toronto note produced by him to the first engraver. It was contended that sec. 18, of the 1 Wm. 4, c. GO, upon which alone the indictment could be supported, did not extend to notes of companies carrying on busiuess within her majesty's dominions out of England, though the offence were committed within the jurisdiction of the Central Criminal Court; but after full argument upon a case reserved, the judges were all of opinion that the offence charged was within the statute, except Parke, B., Aldcr.son, B., and Coleridge, J., who entertained some doubt, and the conviction was affirmed, (y) Upon an indictment on the 41 Geo. 3, c. 57, s. 2 (now repealed), which charged the prisoner with having in his custody a plate on which was engraved part of a promissory note, purporting to be the promis- sory note of a body corporate called the British Linen Company, it was objected that it was not an offence within this statute, to have in custody a plate for making notes, &c., in the name of such company, though it appeared that they carried on business as bankers, because they were incorporated for a purpose entirely different, viz., that of car- rying on a linen company; and it was also objected, that the indictment was bad, as it omitted to aver that the company carried on the business of bankers, which the act required. The objections having been re- served for the consideration of the judges, they seemed to be of opinion that the first objection was fatal ; and were all of opinion that the in- dictment was bad, for the reason stated in the second, and that judgment should be arrested. (Z;) The 1 Wm. 4, c. 66, s. 19, enacts, "that if any person shall engrave i Wm. 4, e. or in anywise make upon any plate whatever, or upon any wood, stone, ^5 ^^J^^/^ or other material, any bill of exchange, promissory note, undertaking, ijiates, Ac, or order for payment of money, or any part of any bill of exchange, for f'^reign promissory note, undertaking, or order for payment of money, in what- notes; ever language or languages the same may be expressed, and whether "^'°g o"" the same shall or shall not be or be intended to be under seal, purport- guc'h'rflatcs, ing to be the bill, note, undertaking, or order, or part of the bill, note, or uttering: undertaking, or order, of any foreign prince or state, or of any minister ""'^v^hich"" or officer in the service of any foreign prince or state, or of any body any part of corporate, or body of the like nature, constituted or recognised by any "."'*' ^^J' foreign prince or state, or *of any person or company of persons resident note ma}- in any country, not under the dominion of his maiesty, without the ^^° ri'int'^'J- ., .. /. \ r • • .. .. ,^11 transportii- authonty ot such toreign prince or state, minister, or officer, body cor- tiou t^or 14 porate or body of the like nature, person or company of persons, the years, Ac. proof of which authority shall lie on th(! party accused ; or if any person *535 shall, without such authority, to be proved as aforesaid, use, or shall, without lawful excuse, to be proved by the party accused, knowingly have in his custody or possession, any plate, stone, wood, or other material upon which any such foreign bill, note, undertaking, or order, of any part thereof, shall be engraved or made; or if any person shall, without such authority, to be proved as aforesaid, knowingly offer, utter, {j) Reg. V. Ilannon," 2 Moo. C. C. ?.. 77. C. k P. 11. {k) Rex i;. Catapodi, January, 1804, Russ. & Ry. 65. • Eng. Com. Law Reps, xxxviii. 19. 535 OF THE FORGERY OF PRIVATE PAPERS, [bOOK IY. dispose of, or put ofT, or shall, without lawful excuse, to be proved as aforesaid, kuowingly have in his custody or possession, any paper upon which any part of such foreign bill, note, undertaking, or order shall be made or printed, every such ofTcnder shall be guilty of felon}', and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years nor less than seven years, or to be imprisoned for any term not exceeding three years nor less than one year."(/) On an in- Where prisoners are jointly indicted for feloniously using plates con- dictment taininff impressions of foro;cd notes, the iury must select some one par- against so-.o.-i ^^ , • \ i i ^ -l veralpvi- ticular time after all the prisoners have become connected, and must be tionois for gatisficd that at such time they were all either present together at one plates, the act of using, or assisted in one such act; and it is not sufficient to show jury must that the parties were general dealers in forged notes, and that at dif- iiarticular fercnt times they had singly used the plates, and were individually in time when possession of forgcd notes taken from them. The indictment charged ers were°ei- ^''^^^^) Moses and Harris, in some of the counts, with engraving on a ther pre- certain plate, in the Polish language, a certain note for the payment of •*?"*^ i"^ T' money ; in other counts with feloniously using the plates, on which the oneactof notes were engraved. At the close of the case for the prosecution, using the Littledalc, J,, required the counsel for the prosecution to elect, whether an indict- they would go On the counts for engraving, or the counts for using the luent con- plates, as they were quite distinct offences ; and the counsel for the fnTensra.y-^^^'^^} admitting that there was no evidence of a joint engraving, relied iug and on the counts for using the plates. It was then objected for the pri- cuunts for gQ^gj-g tj^^t there was not any evidence of a joint using of the plates, plates, the It was answered that there was evidence to go to the jury, as it was prosecutor dgav that Balls had the plate at one time and Moses at another, and must elect , __ . ..'■,.., . , i , -ni on which that Harris was active in bringing the parties together, so that l^laum he will iDro- ujight have the impression. Any act traced to one was traced to all; and the question was whether the notes were not struck off with the joint consent of all parties. Littledale, J., in summing up, said, "In a case of felony, you can only go upon one act committed. There is very great diiSculty in this case for you to know which act the prosecutor relies on, all these things being done at different times. The prosecutor does not fix on any particular day ; if you find that at any one time, all three did concur in using the plates, then you may find them guilty. *536 There are four different times at which *notes were taken. As to what has been said about these parties being general dealers, it is not suffi- cient; they are not indicted one for doing the act, and the others as accessories before the fiict, but are all charged as principal felons. There may be cases in which acts done at different times may be evi- dence of a joint using, as, for instance, if one were to find the plate, and one the paper, and one to do the work, I should say it was a joint using, but there is no evidence of that sort here. There is no evidence that by common concert these parties did such things. If one struck off the impressions, and the others wished him to do it, and shared in the profits, that would not make them principal felons. As this is an in- dictment against all three, you must be satisfied that they were all three present at one time, or assisting in some way at that time, either by watching at the door or something of that sort. Having the notes in [I) See the general provisions of this act, ante, p. 408, et seq. As to the principals in the Recond degree, accessories, hard labour and solitary confinement, see ante, p. 410. CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 536 possession is not sufficient evidence of having used the plate ; as in the case of forgery, uttering is not sufficient evidence of having forged. IJalls, it scorns, had the phitc a year before, but that is no evidence under this indictment, as the using under it must be since August, 1S35, as Harris and Moses do not come on the stage till that time. The only evidence against Harris is the negotiations entered into with Saltzman and others respecting this note; there is no proof of his having the plate in his possession. Moses had it in his possession, and he is proved to have said before that he had the plate, and could print as many as he liked; this may be something like evidence of a using, on his part, of the plate. It does not seem to me that there is any evidence to prove a joint using at any one time, which, in my opinion, is necessary to prove this indictment : you may find two of them guilty, or one of them guilty, or all three of them guilty." (?n) Upon an indictment against several for engraving plates, under the 1 I'l'^nanin- AVm. 4, c. GG, s. 19, the jury must be satisfied that they jointly eni-,,,,^-,,,^^ j.,,. ployed the engraver, but it is not necessary that they should all bepre-veral for sent when the order was given : it is sufficient if one first communicated ^"^1^^™^'°^ with the others, and all concurred in the employment of the engraver, joint em- Mazeau, Ramuz, and Rault, were indicted for feloniously engraving and f,'"'^''"""''"'^ ' ' ' . V(. '•'"J graver making upon two plates two parts of a promissory note for 25 rubles, must bo i)f Nicholas, Emperor of Russia, and it appeared that Ramuz and Ma- P'".^'^'''''^' ^"' , , ^ . 1 . , . , „ , It IS not ne- zeau had tor some time been acquainted with an engraver, or the name cessnry of Salt, and that on the 9th of August, 1840, Mazeauwent to Salt and tl'iu all tbo showed him two Russian notes, and had some conversatidb with hini ^'i^oui'j l,^e about engraving some plates, and some days after Mazeau came again, present accompanied by Ramuz, and both told Salt that he was to go on with yrji'^^^jg" the engraving, and both gave him some money, and they both came to- given. gether to him frequently during the progress of the work. The evi- f)*"j''f ' (lence against Rault was, that when Salt took the print, Mazeau told him sons cause . hat the man they were executing the order for was present in their r'"''!^'"^^ * house in the parlour; in consequence of this, Salt watched outside the * door after he left, and saw Rault come out of the house. Salt had also iii^y ^re ' seen Rault several times during the progress of the engraving: he had within tho seen him in conversation with Mazeau and Ramuz. Mrs. Salt, who ^u g'^jg'*'' knew the three prisoners, had seen two of them a great many times, but whether ' one not so often as the other two. She only saw the three prisoners to- ({l^'^ul^uro gether once, and that was on the day they were taken into custody ; they of the in- were standinjr talkinjf toiicther, close to Salt's window. On Rault's ap- ^''■"'ne"'' <"" i^ G o 7 L not. ])rehension, some proofs of the plate and a Russian passport were found upon him. It was submitted for Rault, that there was not any act proved to have been done by him jointly with Mazeau and Romuz, so as to make him guilty of the charge laid in the indictment; that there must be a joint employment of Salt by all the three prisoners ; and that in order to make out such joint employment, it was necessary to show that all three were present at the time the order was given. Patteson, (m) Rc-x 1'. Harris,* Balls and Moses, 7 C. & P. 416, cor. liittlcdalc, J., and Gasclee, J. Tiic facts jirovt'd on the trial are not stated in the report, and altliouj^h there is a reference to Rex /'. Ualls,'' 7 C. & I'. 42G, for tlie principal facts of the case, the statement there docs not contain any of the most important facts alluded to by the learncil judge in his summing up. For other points decided in other cases against the same prisoner, sec Re.x i". ^\ arsha- ner, R. k M. C. C. R. 4GG, anfe, p. ?,l:i. Rex i-. Harris, Moses and Balls, ante, p. 375. Rex v. Halls, R. & M. C. C. R. 470, ante, p. 405, 40G. »Eng. Com. Law Reps. x.xxii. 5G4. •> lb. xxxii. riGH. 537 OF THE FORGERY OF PRIVATE PAPERS, ETC. [bOOK IV. J., " I quite agree that there must be a joiut employment, and that all these three persons cannot be convicted on this indictment, unless the jury think that they jointly employed Mr. Salt. But I do not go along with the learned counsel, in saying that they must all three be present at the time when the order was given to Mr. Salt. I am of opinion, that if it be shown that two of them gave the order on behalf of them- selves and another person, that other person being the other prisoner, he may be connected by some evidence with the employment. "Whether there is such evidence in the case is a question for the jury ; I cannot withdraw the case from their consideration." And in summing up, the very learned judge said, " You cannot find all guilty, unless you are of opinion that they jointly employed Salt to make the engraving. If you are satisfied that Ilault first communicated with the other two, and then that they all concurred in employing Salt, the three prisoners may be found guilty ; but you cannot find llault guilty if you think he employed the other two to get the plate engraved by any person, and they after- wards, of their own accord, employed Salt. You may acquit all or any one of the prisoners, if you are satisfied that they did not employ Salt. It is clear, under the words of the act of parliament, and taking the evi- dence to be true, if Ramuz and Mazeau knew the nature of the instru- ment, that the case is brought home to them ; and I am inclined to think that if by Salt they engraved the plate, although they did not know the nature of the instrument, they are within the act; but I am not confi- dent of that, and shall ask you to say, whether you think they knew the nature of the instrument which they employed Salt to engrave. With respect to the guilt of Rault upon this indictment, the evidence is not so cogent. He is not brought forward until a very late period, long after the order had been given by the two other prisoners, when he is seen coming out of their house, and he is subsequently seen in their company. When he is arrested he gives his address in Portland Street, and at that address, in the room he occupied, the first proof of the plate is found, and other proofs are also found upon him. These circum- stances, however, do not clearly lead to the inference that you must ar- rive at, before you can pronounce him guilty of this indictment ; for, to make him answerable for the offence now charged, you must be sat- *538 isfied that he was a party concerned* in giving the order originally to Salt. For that purpose, it seems to me, the evidence is but slight; but should you think that he did originally instruct the other prisoners, and that by his authority they went and employed Salt, they may all be convicted. If you do not think that, llault must be acquitted. You will therefore say, whether Ramuz and Mazeau knew what the contents of the plate were, and what the nature of the instrument was ; and you will also say whether Rault was a party concerned in giving the original instructions to Salt."(n) (n) Reg. V. ilazeau,' 9 C. & P. 676. The jury found Mazeau and Ramuz guilty, and that they knew the nature of the instrument. With the greatest deference to the very learned judge, it is submitted that it deserved consideration, whether supposing that Rault gave the order to Mazeau and Ramuz, and they in his absence gave it to Salt, who was an innocent agent, Rault was more than an accessory before the fact. If Rault had given the order to Ramuz and Mazeau, and they in his absence had themselves engraved the plate, it is con- ceived they would have been principals, and Rault an accessory before the fact ; and it is submitted that this case is not varied by the act of an innocent agent, as that act is, ac- cording to all the authorities, just the same as if it was done by the party procuring it to be done. C. S. G. * Eng. Com. Law Reps, xxxviii. 286. CHAP. XL.] OF FALSELY PERSONATING ANOTHER. *539 ♦CHAPTER THE FORTIETH. OF FALSELY PERSONATING ANOTHER. (A) The bare fact of personating another, for the purpose of fraud, is no OfTeueo at more than a cheat or misdemeanor at common hiw, and punishable as <■""""'"' . . law, such. (a) And the principal cases in which it has been considered as indictable have been laid as cases of conspiracy. In a case where the prisoner had been acquitted on an indictment preferred against him for forgery, upon its appearing that he had merely passed himself oflF for the person whose real signature appeared on the instrument, in concert with that person, (?>) he was indicted again for the misdemeanor : but it is observed that this second indictuicut did not turn singly on the fact of such false personating for a fraudulent purpose, but was framed against him and his associates for the conspiracy as well as the cheat. (c) And where a woman, living in the service of her mas- ter, conspired with another man that he should personate her master, and in that character should solemnize a marriage with her, which was accordingly done, for the purpose of afterwards raising a spurious title, to the property of the master; the gist of the indictment was for the con- spiracy, and the conviction proceeded upon that ground. (J] And in a case where a cheat was aifccted by one person pretending to be a mer- chant, and another to be a broker, we have seen that judgment appeared (a) 2 East, P. C. c. 20, s. G, p. 1010. h) Ante, p. 326. (c) 2 East, P. C. c. 20, s. G, p. 1010. Tlie defendants were convicted upon the second indictment. (d) Rex V. Robinson and Taylor, 0. B. 174G. 1 Leach, 37. 2 East, P. C. c. 20, s. 6, p. 1010. (A) U.xiTED States. — If any person shall acknowledj^c or procure to be acknowledged in any of the courts of the United States, any recognizance, bail or judgment in the name or names of any other person or persons, not privy or consenting to tlie same, evcr^^ such per- son or persons, on conviction thereof, sh.all be lined not exceeding live thousand dollars, or be imprisoned not exceeding seven years, and wliipped not exceeding thirty-nine stripes. Provided, nevertheless, that this act shall not extend to the acknowledgment of any judg- ment or judgments by any attorney or attorneys, duly admitted for any person or persons against whom any such judgment or judgments shall be had or given, jl U. S. Laws (Sto- ry's ed.) 8G; st. IV'JO, c. 3G,'^ 15.} jif any person shall falsely and deceitfully personate any true or real proprietor or holder of a share or sum in public stock or debt, or capital stock of the bank of the United States, or any person entitled to any annuity, dividend due on such stock or debt, or to any pen- sion, prize money, wages, or other debt or sum of money due or to become due from the United States, as if such offender were the true and lawful owner thereof, and entitled thereto; every person so offending shall be deemed guilty of felony, and be punished by line not exceeding five thousand dollars, and by imprisonment and confinement to hard labour not exceeding ten years. 3 U. S. Laws (Story's ed.) 2004; st. 182"), c, 270, § 18.( New York. — In an action of scire facitis against bail, the defendant i)leaded that another person of the same name and description became bail, and traversed that the defendant was the same person. The plaintiff replied tliat the defendant and the person described in the recognizance of the bail were the same i)erson, and issue was tiiereon joined. The name of Elnathan Noble was inserted in the bail-piece, but it was j)roved that Stephen Norton was the person who intended to be bail, and who in fact appeared before the judge who took and signed the acknowledgment of the l)ail piece. It was held tliat this was a good plea ; and that the evidence was admissible, and sullicient on the issue joined between the jiarties, as to the identity of the person. Where bail are personated, the court will iu their discretion, on motion, order a vacatur of the bail ; but if there has been a felonious personating of bail, the court will stay an order for relief, until the party personated has prosecuted the felon. Renoard v. Noble, 2 Johns. Cases, 293. {See Revised Statutes, Vol. II. 677.} Vol. II.— 35 539 OF FALSELY PERSONATING ANOTHER. [BOOK IV. ultimately to have been given for the crown, on the ground that it was a case of conspiracy. (e) A case however is reported, in which the in- dictment only charged that the defendant personated a clerk to a justice of the peace, with intent to extort money from several persons, for pro- curing their discharge from misdemeanors for which they stood com- mitted; and the court refused to quash it upon motion, and put the de- fendant to demur to it.(/) But it is observed, that it might probably have occurred to the court that this was something more than a bare endeavor to commit a fraud by means of falsely personating another; that it was an attempt to pollute and render odious the public justice of the kingdom, by making it a handle and pretence for corrupt practices. (^) *540 How far the refusal to quash jihe indictment* upon motion can be con- sidered as an authority is questionable ; as we have seen that it was the practice of the court, as often declared, not to quash on motion indict- ments for oifences founded in fraud or oppression, though such indict- ments might appear not to be sustainable, but to leave the defendants to plead. (A) or the of- The offence of falsely personating another for purposes of fraud is so fences by nearly allied to forgery, and so often blended with it that these offences have been frequently included by the legislature in the same enactments and made felonies alike subject to the same punishment. Many of the statutes, therefore, which relate to falsely personating, with a few cases determined upon their construction, having necessarily been introduced in the preceding chapters; as those concerning the personating the pro- prietors of public stocks, &c.(^) and the personating of soldiers and sea- men, and their widows, &c. in order to obtain wages, pensions, prize- money, &G-{j) But the general provision of the 2 Wm. 4, c. 53, entitled "an act for consolidating and amending the laws relating to the pay- ment of army prize-money," may properly be introduced in this place. 2 Wm. 4. c. That statute, by sec. 49, enacts, that " if any person shall knowingly 53, s. 49. j^Q(j willingly personate or falsely assume the name or character or pro- log and cure any other person to personate or falsely assume the name or char- falsely as- acter of any ofl&cer, non-commissioned officer, soldier or other person name*^&e. ° entitled or supposed to be entitled to any prize-money, grant, bounty of soldiers money, share or other allowance of money due or payable or supposed ordTr to^ob^ ^'^ ^^ ^^^ ^^ payable for or account of any service performed or sup- tain prize posed to havc been performed by any officer, non-commissioned officer, money, soldier, or other person who shall have really served or be supposed to pay, pen- ' , . ,F . , , . •' , ... ^^ . sion, Ac., have served m nis majesty s army or m any other military service, or felony. ghall personate or falsely assume, or act, aid, or assist in personating or falsely assuming the name or character, or procure any other person to personate or falsely assume the name or character of the executor or administrator, wife, widow, next of kin, relation or creditor of any such officer, non-commissioned officer, soldier, or other person as aforesaid, in order to receive or to enable any other person to receive any prize- money, grant, bounty money, share or other allowance of money due or payable or supposed to be due or payable for or on account of any ser- vice performed or supposed to have been performed by any such officer, non-commissioned officer, soldier, or other person as aforesaid; all and (e) Reg. V. Mackarty and Fordenbourgh, ante, p. 281. (/) Dupee's case, 12 Geo. 1, 2 Sess. Gas. 11. 2 East, P. C. c. 20, s. 6, p. 1010. (g) 2 East, P. C. c. 20, s. 6, p. 1011. (h) Ante, p. 283, note (i). (») Ante, p. 418, et seq. [j) Ante, p. 473, et seg. CHAP. XL.] OF FALSELY PERSONATING ANOTHER. 540 every person so uffiuJing, being tlicrt-of lawfully convicted, ^ball be and are and is hereby declared and adjudged to be guilty of felony, and shall be transported beyond the seas for life, or for any term not less than seven years, as the court before whom such person or persons shall be convicted shall adjudge. "(A) The 11 Geo. 4, c. 20, entitled " an act to amend the laws relating 'to *a41 the pay of the royal navy," by sec. 84, enacts that " if any person shall ii Oeo. i, falsely and deceitfully personate any commission, warrant or petty officer, p^g'„na^*' or seaman, or commissiou or non-commissioned officer of marines or ing oDicers, marine, or the wife, widow, or relation, executor, administrator, or *'^'\''^^^" creditor of any such officer, seaman or marine, or any person entitled to any allowance from the compassionate fund of the navy, in order to re- ceive any wages, pay, half-pay, prize-money, bounty money, pension or any part thereof, gratuity or other allowance for money due or payable, or supposed to be due or payable, to any such officer, seaman or marine, or to the wife, or widow, relation, executor, administrator, or creditor of any such deceased officer, seaman, or marine, or any allowance to any person from the said compassionate fund, with intent to defraud any person whomsoever ; every such offender shall be guilty of felony, and, being convicted thereof, shall be liable at the discretion of the court, to be transported beyond the seas for life or fur any term not less than seven years, or to be imprisoned for any term not exceeding four years nor less than two years. "(/) Upon some of the former statutes relating to the false personating of Tho pcr- seamen, it was decided, that as the false personating must be done in^''"'\*'"= , ,.,,,/. (, must be of order to receive the wages, tvc, of some seamen, &c., entitled or s?/p- some sea- posed to he entitled therrto, there must be some evidence to show that'"*'*"' ^'^•' there was such a person of the name and character assumed, who was have iiccu either entitled, or m\^i primH facie at least be supposed to be entitled '"i '^^'°- to receive the wages, &c., attempted to be acquired. Thus where the prisoner was indicted on the 31 Geo. 2, c. 10, (?u) for personating and falsely assuming the name and character of Wm. Wheeler, a person supposed to be entitled to prize-money, for service done on board his majesty's ship Terpsichore, in order to receive certain prize-money, Ac., one of the objections taken after conviction was, that there was no evi- dence that Wm. Wheeler ever served on board of the Terpsichore in any capacity; or, indeed, that any such person existed- : and the judges, after a conference, held that the conviction was wrong, there being no evidence that there was any such person as Wm. Wheeler, who either was entitled, or at leastpymtt/'acte entitled to prize-money, as a sea- man on board the Terpsichore. (u) In a case upon one of the former statutes, 54 Geo. 3, c. 93, s. 89, the Porsonnt- indictment charged the prisoner with personating and fixlsely assuming '"= ""'' """ the name and cliaracter ot one Joshua IJoatwnglit, a seaman entitled to namo of certain prize-money ; and it was proved that the prisoner applied at l'*^'"^''"' 'Greenwich Hospital for prize-money in the name of Boatwright ; but it jeaVhdd (/(•) The 2 Wm. 4, c. 53, contains no express provision for the punishment of accessoriea after the fart, consequently they arc punishahle (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 00, s. 5,) in the manner stated in note {u), ante, p. 448. See the remainder of sec. 49 of the 2 Wm. 4, c. G3, ante, p. 473. {I) Sec sec. 88, and the 1 Vict. c. 90, s. 5, ante, p. 478, note {k), as to principals in the second degree, accessories, hard labour, and solitary confinement. yvi) Repealed by the 11 Geo. 4, c. 20. (ii) Brown's case, 2 East, P. C. c. 20, s. 4, p. 1007. S. P. in M'Anelly's case, ibid. p. 1009. 541 OF FALSELY PERSONATING ANOTHER. [bOOK IV. to be witb- appeared that he did not obtain the money, and that Boatwright was tutes^ ^^^' ^^^^^ (ie-^i- The counsel for the prisoner objected, that to personate Boatwright under these circumstances, or to assume his name and char- acter, was not an offence within the meaning of the act, which related only to existing persons; that after the death of Boatwright he could not be entitled to prize-money, but that the personal representatives or *542 Qcxt of kin were *the persons entitled, and that in fact he was not sup- posed to be entitled to prize-money, since it was supposed at the prize- office that he was dead, and that his next of kin was in the course of obtaining administration in order to receive it. The prisoner was found guilty, and the point being reserved for the consideration of the judges, they were of opinion that the conviction was right, and that the statute applied, though the seaman personated was dead.(^o) So where the prisoner personated one Cuff, who was dead, and whose prize-money had been paid to his mother, the judges were of opinion that a conviction upon the same statute was right. (p) The per- In a case upon the 57 Geo. 3, c. 127, s. 4, the indictment charged the mi°sTb(fof pi'isoner with wilfully and knowingly personating, and falsely assuming some per- the name and character of Peter M'Cann, a person entitled to prize- son by his n^Qijgy for and in respect of his services performed on board of a ship corrccti •/ i- ■•■ ^ ^ name, who of his majesty's called the Tremendous, in order to receive such prize- was enti- money, with intent to defraud the commissioners and governors of the supposed to Grreenwich Hospital ; and a second count described Peter M'Cann as a be entitled person supposed to be entitled, &c., for services supposed to have been moneT&c performed. Upon the evidence it appeared by the prize list and muster and it must book of the Tremendous, produced by the proper officer from Green- ^®?°°j|^''S"wich Hospital, that there was a person of the name of Peter M'Carn indictment, entitled to prize-money, but no person of the name of Peter M'Cann. The learned judge, by whom the prisoner was tried, inclined to direct an acquittal upon this variance in the name, but he ultimately left the case to the jury, directing them to say whether the prisoner intended to personate Peter M'Carn. The jury found that he did so intend, and returned a verdict of guilty ; upon which judgment was respited, and the point reserved for the consideration of the twelve judges, who were of opinion that the "personating" must apply to some person who had belonged the ship, and that the indictment must charge a personating of some such person ; and as that was not the case here, they held the conviction wrong, (j) Aiders and It was held upon the same statute, 57 Geo. 3, c. 127, s. 4, that all abettors, persons present aiding and abetting another in the personating and falsely assuming the name, &c., of a seaman, wore principals, and that the offence was not confined to the individual only, by whom the sea- man was personated. (/•) It remains now to mention that the statute which relates to the ac- knowledging of deeds, bail, &c., in the name of another. The 21 Jac. 1, c. 2G, the 4 W. & M. c. 4, s. 4, and the 27 Geo. 3, c. 43, s. 4, which formerly provided for the punishment of these offences, are repealed by the 1 Wm. 4, c. 66, s. 31. Fraudu- But that statute by sec. 11, enacts, "that if any person shall, before (o) Rex V. Martin, East. T. 1817, Riiss. & Ry. 324. (p) Rex V. Cramp, East. T. 1817, id. 327. os/«y bond Jidc that the master had a right to order it to be witiiin the done, the servant is not liable to be convicted *under the 7 & 8 Geo. 4, ^ '^ 30'*^° c. 30, s. 6, of maliciously obstructing the airway. The prisoners were *545 indicted for feloniously and maliciou.sly obstructing an airway belong- ing to a mine of one Phclp.s, by building a wall across the airway ; the prisonei's were in the employ of I'rotheroc, between whom and Phelps there was a dispute respecting two mines in their respective occupations, lying close together. Protheroe, professedly with the view of exerting his supposed right against Phelps, directed the prisoners to effect the ob- struction charged in the indictment, and the prisoners accordingly made such obstruction. (c-?j The effect of the obstruction would be to drive back the choke damp into Phelps's mine, and prevent the working. Lord Abinger, C. B., " If a master, having a doubt or no doubt of his own rights, sets his servants to build a wall in a mine, they would, if he proved to have no right, be all liable in an action of trespass, but it would not be felony in the servants. The rules respecting acts mala in se do not apply. If a master told his servant to shoot a man, he would know that that was an order he ought to disobey. But if the (b) Rex t». Philp, R. & M. C. C. R. 2G3. See this case, post, p. 563, as to other points. (c) Rex II. Ncwill, R. & M. C. C. R. 4G8. In his luminous charge to the Bristol grand jury in r8:i'2, Lord C. J. Tindal observed, that "where a statute directs that to complete an offence it must iiave been done with intent to injure or defraud any person, there is no occa- sion that any malice or ill will should subsist against the person whose property is so destroyed. It a malicious act in contemplation of law when a man wilfully docs that which is illegal, and which, in its necessary consequence, must injure his neighbour, and it is unnecessary to oliserve that the setting fire to another's house, whether the owner be a stranger to tlie prisoner, or a person against whom he had a former grudge, must be equally injurious to him." 5 C. &. P. 2GG,» note. (d) This statement is taken from the report of James v. Phelps,* 11 Ad. & E. 433. » Eng. Com. Law Reps. xxiv. 312. •> lb. xxxix. 150. 546 OF MALICIOUS INJURIES TO PROPERTY. [BOOK IV. servant Lo7id fide, did these acts, I think they do not amount to an offence within the statute. If a man ch^ims a right which he knows not to exist, and he tells his servants to exercise it, and they do so, acting honCl fide, I am of opinion that that is not a felony in them, even if in so doing they obstruct the airway of a mine. What I feel is this, that if these men acted honCi fide in obedience to the orders of a superior, conceiving that he had the right which he claimed, they are not within this act of parliament. But if either of these men knew that it was a malicious act on the part of his master, I think then that he would be guilty of the offence charged. "(e) And this decision was confirmed in an action brought by one of the prisoners against Phelps, for a malicious prosecution, in which it was contended that the proviso in sec. 24 of the 7 & 8 Geo. 4, c. 30, (which authorizes justices summarily to convict in cases of malicious injuries to real or personal property) that '' nothing herein contained shall extend to any case where the party trespassing acted under a fair and reasona- ble supposition that he had a right to do the act complained of," raised a strong inference that the legislature did not intend to except from the operation of sec. 6, acts done in the supposed exercise of a right, as there was no such proviso in sec. 6. But the Court of Queen's Bench were of a contrary opinion, and Lord Denman, C. J., observed, <' as to the 7 & 8 Geo. 4, c. 30, s. 24, 1 think it makes strongly against the argu- ment of the defendant's counsel. That section gives a power to convict summarily for malicious mischief; and it contains a proviso that, where there is a honCi Jide d^cimg under a supposed right, the party acting shall not be liable to conviction even for the trespass. Now why was there no such provision in the case of felony ? for this plain reason, that the principles of the common law prevent the act from being felonious where there is no malice in the intention." (/) *547 With respect to principals in the second degree and accessories, *the Sec. 26. 26th section enacts, " that in the case of every felony punishable under iiAhe'^e-^ ^^^'•^ '^^^j every principal in the second degree, and every accessory be- cond de- fore the fact, shall be punishable with death or otherwise, in the same g;-ee and manner as the principal in the first degree is by this act punishable ; and every accessory after the fact to any felony punishable under this act shall, on conviction, be liable to be imprisoned for any term not exceeding two years ', and every person who shall aid, abet, counsel, or procure the commission of any misdemeanor punishable under this act, shall be liable to be indicted and punished as a principal offender." Sec. 27. By sec. 27, " where any person shall be convicted of any indictable m"nrof offence punishable under this act, for which imprisonment may be liarJ labour awarded, it shall be lawful for the court to sentence the offender to be and solitary imprisoned, or to be imprisoned and kept to hard labour, in the common raent may gaol or house of correction, and also to direct that the offender shall be be inflicted. ]jcpt in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labour, as to the court in its discretion shall seem meet. ((7) [c) Reg V. James,* 8 C. & P. 131. Lord Abinger, C. B., directed the prisoneis to be ac- quitted. (/) James v. Phelps, uli supra. [g) The 1 Vict. c. 90, s. 5, enacts that after the 1st October, 1837, " it shall not be lawful for any court to direct that any offender shall be kept in solitary confinement for any longer period than one month at a time, or than three months in the space of one year." » Eng. Com. Law Reps, xxrviii. 326. CHAP. XLII.] OF ARSON AND BURNING, ETC. 547 And with respect to the apprehension of offenders, the 28th section ''?'^<;- 2«. enacts, " that any person found comuiitting any offence against this act, gil„i of pe,.. whether the same be punishable upon indictment or upon summary sons found conviction, may be immediately apprehended, witliout a warrant, by any ^^j'""|^^,J|"^ peace oflBcer, or the owner of the property injured, or his servant, orccs maybe any person authorized by him, and forthwith taken before some neigh- "'1'''""'"^ bouriug justice of the peace, to be dealt with according to law." Offences amounting to felony or misdemeanor, punishable under this Trial ofof- act, and committed within the Admiralty jurisdiction are, (])y sec. 43,) ,[j"t,^pj'''^'"' to be dealt with, tried, &c., in the san)e manner as any other felony or within tho misdemeanor committed within that jurisdiction. Adminilty The statute contains various regulations as to the summary proceed- lion. iug.s by conviction before magistrates, which are authorized by its Smumary provisions for the punishment of minor offences. It limits the time for r''"'^'^*^''^- 1 ■ r rr .111 • • ■ 1 '"o^ aUlllO- the prosecution of offences punishable on summary conviction, gives the li^o.l by the mode of compelling the appearance of offenders, makes abettors in statuti.-. such offences punishable as principal offenders, gives a form of con- viction, allows an appeal in certain cases, and contains provisions as to the application of the forfeitures and penalties, and as to several other matters. The general provisions of the 7 Geo. 4, c. G4, as to offences commit- Ocncral ted on the boundaries of counties, or begun in one county and com- J|j'l^ 1^1.^^ ^^ pleted in another, or committed during a journey or voyage, and thee, fi I, ap- pro visions as to the statement of property, and as to the trial, &c., of j^lil^ciour accessories, will apply to offences by malicious injury. (A) injuries. ^CHAPTER THE FORTY-SECOND. *548 OF ARSON AND THE BURNING OF BUILDINGS, MINES, SHIPS, CORN, TREES, &C.(a.) Arson is, at common law, an offence of the degree of felony ; and has offence of been described as the malicious and wil/ul hurnimj the house of a?i- arson at (/i) See these provisions, ante, p. 120, et seq. (A) New York. — Setting fire to an inhabited dwellinpj-house, by which only a part of it is consumed, is arson williin the first scctiou of the act, ( 1 N. R. L. Hess. 3G, c. 29,) and it is pun- ishable with death. It is enough if the fire is applied with a malicious and criminal intent, and that is as apparent as if the whole house had been consumed. By the addition of that word inhabitant, in the first section of the act, the legislature evidently intended to make a distinction between the act of burning a dwelling-house while i)ersons were actually iu it, and burning an uninhabited dwelling-house, the one offence being punishable with death, and the other l)y imprisonment. The People v. Rose Butler, IG Johns. Rep. 203. Setting fire to a gaol by a prisoner, merely for the i)urpose of effecting his escape, is not arson, nor is it wilfully burning an inhabited dwelling-house, within the meaning of the first section of the act declaring the punishniont of crimes, (1 N. R. L. 407, Sess. 30, Ch. 29,) though the gaol is to be deemed an inhabited dwelling-house within the act. " It docs not ajipear to have been the intention of the prisoners to burn the gaol. Their original intention was to effect their escape, and the burning was merely for that purpose. It lay on the prisoners to show that it was no part of their intention to burn the gaol, and wc think they have done it. The statute makes it felony for a person to aid or assist a felon to escape from prison ; but neither by the statute, nor the common law, is the attempt of a person to escape a fclonj'. We think it would be carr3'ing the doctrine too far to say, that setting fire to a prison bjr a prisoner, merely for the purpose of cflfecting his own escape, 548 OF ARSON AND BURNING, ETC. [bOOK IV. common otJier.(a) The burning a party's own house does not come within this ^^' definition ; but the burning a man's own house in a town, or so near to other houses as to create danger to them, is a great misdemeanor at common law. (6) Barns, with corn or hay within them, have been con- sidered as so much entitled to the protection of the law, that though distant from the house, and no part of the mansion, the burning of them is felony at common law.(c)-|- There must The burning necessary to constitute arson of a house at common law, bo an actual jjjygi- -^^ ^^ actual huriiimi of the whole or some part of the house. IS either a bare intention, nor even an actual attempt to burn a house by putting fire into or towards it, will amount to the offence, if no part of it be burned ; but it is not necessary that any part of the house should be wholly consumed, or that the fire should have any continuance ; and the offence will be complete, though the fire be put out, or go out of itself. (^?) Upon an indictment for maliciously setting fire to a house it appeared that a small faggot was found lighted and burning on the boarded floor of the kitchen, and a part of the boards of the kitchen floor was scorched black but not burnt ; the faggot was nearly consumed, but no part of the wood of the floor was consumed; and Cresswell, J., after conferring with Patteson, J., held that as the wood of the floor was scorched, but no part of it consumed, the indictment could not be supported. But the learned judges were of opinion, that it was not essential that the wood {a) 3 Inst. 6G. 1 Hale, 556. 1 Hawk. P. C. c. 39. 4 Bla. Com. 220. 2 East, P. C. c. 21, s. 1, p. 1015. {Davis's Justice, 313, 1st ed.} {h) I Hale, 568, 569. 1 Hawk. P. C. c. 39, s. 15. 3 Bla. Com. 221. 2 East, P. C. c. 21, s. Y, p. 1027. (c) 3 Inst. C7. Barham's case, 4 Co. 20 a. Sum. 86. 1 Hawk. P. C. c. 39, s. 1. 4 Bla. Com. 221. {5 Harris & Johns. 125, House v. House.} {d) 3 Inst. 66. Dalt. 506. 1 Hale, 568, 569. 1 Hawk. P. C. c. 39, ss. 16, 17. 2 East, P. C. c. 21, s. 4, p. 1020. {16 Mass. R. 105, Commonwealth v. Van Shanck.} amounted to the crime of arson." Per Spencer, C. J. The People v. Cetteral & al., 18 Johns. Rep. 115, 120. {See Revised Statutes, Vol. II., 657, 666, 667. United States. — By st. 1825, c. 275, (3 U. S. Laws, 1999, Story's ed.) ^ 1, If any person, within any fort, dock-yard, arsenal, armory or magazine, the site whereof is ceded to and under the jurisdiction of the U. States, or on the site of any light-house, or other needful building, belonging to the U. States, the site whereof is ceded to them and under their jurisdiction, shall wilfully and maliciously burn any dwelling-house or mansion-house, or any barn, stable, or other building, parcel of any dwelling or mansion-house, every person so offending, his or her counsellors, aiders and abettors, shall be deemed guilty of felony, and shall, on conviction thereof, suffer death. By § 2, if any person, in any of the places aforesaid, shall wilfully and maliciously set fire to, or burn, any arsenal, armory, magazine, rope walk, ship-house, ware-house, block- house, or barrack, or any store-house, barn or stable, not parcel of a dwelling-house, or any other building not mentioned in the first section, or any ship or vessel built or building, or begun to be built, or repairing, or any light-house or beacon, or any timber, cables, rigging, or other materials for building, repairing, or fitting out ships or vessels, or any pile of wood, boards or other lumber, or any military, naval, or victualling stores, arms, or other muni- tions of war — every person so offending, his or her counsellers, aiders and abettors, shall be deemed guilty of felony, and shall on conviction thereof be punished by fine, not exceeding five thousand dollars, and by imprisonment and confinement to hard labour, not exceeding ten years, according to the aggravation of the offence. By § 11, the wilful and malicious setting on fire, burning or otherwise destroying of any ship or vessel of war of the U. States, afloat on the high seas, or in any arm of the sea, or in any river, haven or creek, basin or bay within the Admiralty jurisdiction of the U. States, and out of the jurisdiction of any particular state — is made felony punishable with death.} f [Sampson v. The Commonwealth, 5 Watts & Serg. 385.] CHAP. XLII.] AT COMMON LAW. 548 shoukl be in a blaze, because some ppccios of ^-ooJ would burn and en- tirely consume without blazing at all.('A/) To constitute a setting on fire, it is not necessary that any flame It isnotno- should bo visible. Upon an indictment for setting firo to an outhouse, [j^^^t^^uy it appeared that tlie roof of the outhouse was made of pieces of wood nam o with straw put upon them, and that smoke was seen to issue out of tho^'?°."'*^ ^'^ bottom of the roof; there was a good deal of smoke in the straw; some liandfulls of straw were pulled out, and there were sparks in the straw when on the ground, but no sparks were seen in the straw when on the roof; no flame was seen; a ball of linen was pulled nut of t!ie roof with the straw ; smoke and sparks came from the ball; the ball was trod out; the ball was burnt right through on one side ; the fire on the roof was extinguished by throwing some water upon it. On the following day, two half matches were found in the straw on the ground, which was pulled from the roof, but there was no appearance of burning in these. On the same day, several handsful of straw were taken out of the roof, *aud there was burnt straw in some of these handsful ; and on the same *549 day, on examining the straw lying on the gi'ound down by the build- ing, there were some burnt ashes, and the ends of some of the straws were burnt, and the ends of some of them dropped off like a powder, and the ends of some of the straws had been reduced to ashes; no part of the wood, cither in the pieces on which the straw was laid, or in the posts of the building, was burnt. Upon a case reserved upon the ques- tion, whether this was a setting on fire, the judges held the conviction right, (r) So where the prisoner was indicted under the 1 Vict. c. 89, s. 3, for setting fire to a house, and it appeared that the floor near the hearth had been scorched; it was charred in a trifling way; it had been at a red heat, but not at a blaze; it was held that this was a sufficient burn- ing.(/) The burning must also be malicious and wilful', otherwise, it is only The burn- a trespass. No nefrligencc or mischance, therefore, will amount to such •"?; ."^ustbo .' . . . IIKlhClOUS burning. (//) And for this reason it has been holden, that if an un- ami wilful, ([ualified person should, in shooting at game, happen to set fire to the thatch of a house, it will not be a burning of this description. (//) And so if a man unlawfully shoot at the poultry of another :(/) but it is ob- served, that in such case it should seem to be understood that the party did not intend to steal the poultry, but merely to commit a trespass; for otherwise the first intent being felonious, the party must abide all the consequences. (jf) The malicious and wilful burning effected need not correspond with j.i,j^,^"),1,,\' the precise intent or design of the party. If A. have a malicious intent uiHul burn- to burn the house of B., and in setting fire to it burn the house of C. '"f '^'^^^ , '^ . not corrcs- also, or if the house of B. escapes by some accident, and the fire take \»^\^y\ with in the hous(! nf C. and burn it, this shall be said in law to be the mali- !'"' r""'^'yso cious and wilful burning of the house of C., though A. did not intend to ti,e i.arty. Ud) Reg. I'. Russcll,» 1 C. & Mars. 541. \e) Rex V. Stixllion, R. & M. C. C. R. 308. See this case, /)o.t^, p. 559. (/) f^ the term extends not only to the dwelling-house, but to all outhouses, which are house. parcel thereof, though not adjoining thereto, or under the same roof;(.y) of which kind of outhouses mention has been made in a former part of this vfork.(^z) It appears that the indictment need not charge the burn- ing to be of a mansion house, but only of a house.(a')'f Misde- It has been already stated, that the burning of a man's own house in buralno-'a ''' ''O^^^j ^r SO near to other houses as to create danger to them, though man's own not wlthju the definition of arson, is yet a great misdemeanor at com- house, ^^^ law. (6) This doctrine has been acted upon in several cases ;(c) tiguousto and, in one of the most recent, G-rose, J., in pronouncing the sentence others. Qf jj^g Court of King's Bench, said, that though by a lenient construc- tion of the law of arson, this offence was holden not to be felony, yet (x) Goweu's case, 2786. 2 East, P. C. c. 21, s. 6, p. 1027. Eickmau's case, ibid., s. 11, p. 1034. (y) 3 Inst. 67. 1 Hale, 570. 1 Hawk. P. C. c. 39, s. 1. Sum. 86. 4 Blac. Com. 221. 2 East, P. C. c. 21, s. 5, p. 1020. (z) Ante, Tol. 1, p. 799, 861. (a) 3 Inst. 67. Sum. 86. (b) Ante, 548. (c) Holmes's case, Cro. Car. 376. Scofield's case, Cald. 397, 2 East, P. C. c. 21, s. 6, p. 1023, and s. 7, p. 1028. It appears from these cases that where an indictment charges an act to have been done with a felonious intent, and the jury find a verdict of guilty : and if the charge, as laid, do not amount to felony, but amounts in law to a misdemeanor, the court will pronounce judgment as for that oifence. f \_Aec. Commonwealth v. Posey, 4 Call. 109. Where an information charged the prisoner with burning a dwelling-house ; and it ap- peared that the building was designed and built for a dwelling-house; was constructed like one ; was not painted though designed to be, andsome of the glass in an outer door had not been put in ; and it had not been occupied: it was held, that this was not a dwelling- house, in such a sense, that the burning of it would constitute the crime of arson. But the law is otherwise, wi?h regard to a dwelling-house, once inhabited as such, and from which the occujjant is temporarily absent. In this case it was the duty of the court on the trial, to instruct the jury as to the law, and leave it to them to say whether the building was a dwelling-house within the meaning of the law thus explained. The State v. M^Gowan, 20 Conn. 245. The defendants having offered a reward for the detection and conviction of any person who might be guilty of feloniously setting fire to any building in the city of Boston ; and the plaintiffs claiming the reward on the ground of the detection and conviction of a per- son for wilfully and maliciously setting fire to and burning in the day time, a building for- merly used and occupied as a carpenter's shop, but then in the process of being altered, adapted and designed to be converted and made into a dwelling house, and not yet finished, it was held that the court could not infer from this description that the burning was feloni- ous. Mead v. Boston, 3 Cusbing, 404. CHAP. XLII.] AT COMMON LAW. 552 it was a misdemeanor of great magnitude, and deserving of the most exemplary punishment. (^(^Z) For the punishment of felonies upon which no punishment may be Piini?li- inflicted by statute, the general provision of the 7 & 8 Geo. 4, c. 28, s. "^.[^"ny'not 8, enacts, " that every person convicted of any felony for which no pun- iiimi.-hublo ishmcnt hath been or hereafter may be specially provided, shall be |'^^""^ ^"'" deemed to be punishable under this act, and shall be liable, at the dis- cretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years : and, if a male, to be once, twice, or thrice publicly or privately whipped (if tlie court shall so think fit) in addition to such imprisonment." And by sec. 9, the court may order hard labour, or solitary confinement as part of such imprisonment. (<;) "We may now proceed to the enactments of the 1 Vict. c. 89. (c^) i Viet. o. That statute by sec. 2 enacts that " whosoever shall unlawfully and f- Sluing maliciously set fire to any dwclhng-house, any pereon bemg therein, .iwclling- shall be cuiltv of felony, and, being convicted thereof, shall suffer '"'"se, any V J? > o jierson be- death. (y) in- thereiu. By sec. 3, " whosoever shall unlawfully and maliciously set fire to [letting firo any church or chapel, or to any chapel for tlic religious worship of per- to a church sons dissenting from the united Church of England and Ircland,(y) *or ^^'"j^'^.y^^^gp^ shall unlawfully and maliciously set fire to any house, stable, coach- Ac. house, outhouse, warehouse^ ofiice, shop, mill, malt-house, hop-oast, barn 55o or granary, or to any building or erection used in carrying on any trade or manufacture, or any branch thereof, whether the same or any of them respectively shall then be in possession of the offender, or in the possession of any other person, with intent thereby to injure or defraud any person, shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such oifender, or for any term not less than fifteen years, or to be imprisoned for any term not exceed- ing three years." (y^) By sec. 4, " whosoever shall unlawfully and maliciously set fire to, J^ctting Cro cast away, or in anywise destroy any ship or vessel, either with intent troying to murder any person, or whereby the life of any person shall be en- ships, with (d) Probert's case, B. R. Mich. 40, Geo. 3. 2 East, P. C. c. 21, s. 7, p. 1030. The sen- tence pronounced was two j-oars imprisonment in Newgate, to stand once during that time in the pillory, and to give sureties for good behaTiour for seven years from the expiration of the imprisonment. (c) 8ce note (ti), ante, p. 448, for the present punisliment under the T & 8 Geo. 4, c. 28, ss. 8 and 9, iind 1 Vict. c. 90, s. 5. (ee) The 1 Vict. c. 89, s. 1, repeals the 7 & 8 Geo. 4, c. 30, ss. 2, 5, 9, 11, and part of ss. 17 and 2G. (/) This provision is entirely new, and it should be observed that the section is silent about the intent with which the act is done. In Reg. v. Jeans, Gloucester Spr. Ass, 1842, the prisoner was convicted under this section before Crcsswell, J., although there was no evidence to show that he knew that any person was in the house at the time when he set tire to it. MSS. C. S. G. (y) The 7 & 8 Geo. 4, c. 30, s. 2, had the words " duly registered or recorded," in this place. {(/!/) This section is the same as the 7 & 8 Geo. 4, c. 30, s. 2, with the difference pointed out in the last note, and the change from the punishment of death to that provided by this section. It is to be regretted that this section has not provided as well as to what shall be deemed an out-house, as for the punishment for setting fire to many buildings not now in- cluded in the statute; e. g. public buihlings, as town-halls, courts, libraries, market-houses, &c., private buildings, as cow-houses, ox-stalls, sheep-sheds, &c. ; ornamental buildings, as summer-houses, hot-houses, green-houses, &c. &c. C. S. G. 553 OF ARSON AND BURNING, ETC., [BOOK IV. intent to (.lanccrcd, shall be guilty of felony, and, being convicted thereof, shall '""^'^^'■"^''•suircrdeath."(A) Setting firo By sec. 6, " whosoever shall unlawfully and maliciously set fire to or *'''th'"''t in anywise destroy any ship or vessel, whether the same be complete or to destroy in an unfinished state, or shall unlawfully and maliciously set fire to, them. pj^gt away, or in anywise destroy any ship or vessel, with intent thereby to prejudice any owner or part owner of such ship or vessel, or of any goods on board the same, or any person that hath underwritten or shall underwrite any policy of insurance upon such ship or vessel, or on the freight thereof, or upon any goods on board the same, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years. "(i) Setting fire By sec. 9, " whosoever shall unlawfully and maliciously set fire to any to coal i;Qine of coal or canncl coal, shall be guilty of felony, and, being con- ' ' victed thereof, shall be liable, at the discretion of the court, to be trans- ported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years." (J) Setting fire By sec. 10, " whosoever shall unlawfully and maliciously set fire to to a stack any stack of corn, grain, pulse, tores, straw, haulm, stubble, furze, grain, ' licath, fern, hay, turf, peat, coals, charcoal, or wood, or any steer of straw, hay, y.Qod, shall be guilty of felony, and, being convicted thereof, shall be *'' liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years. "(A;) *554 By sec. 11, " in the case of every felony punishable under this act, Punish- *every principal in the second degree, and every accessory before the ^ssories?^' fact, shall be punishable with death or otherwise in the same manner as the principal in the first degree is by this act punishable ; and every accessory after the fact to any felony punishable under this act, shall, on conviction, be liable to be imprisoned for any term not exceeding two years." Hard la- By sec. 12, "where any person shall be convicted of any offence hour with p^^^igtij^bie under this act, for which imprisonment may be awarded, it ment. shall be lawful for the court to sentence the offender to be imprisoned, or imprisoned and kept to hard labour, in the common gaol or house of Solitary correction, and also to direct that the offender shall be kept in solitary confine- confinement for any portion or portions of such imprisonment, or of such ^^^ ' imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as to the court in its discretion shall seem meet." Off"ences By sec. 14, " where any felony punishable under this act shall be w*ithTn'the committed within the jurisdiction of the Admiralty of England or of (A) This provision is entirely new. (j) This section is the same as the 7 & 8 Geo. 4, c. 3, s. 9, except as to the punishment, which -was death. (./) This section is the same as the 7 & 8 Geo. 4, c. 30, s. 5, except as to the punishment which was death. {k) This section corresponds with the 7 & 8 Geo. 4, c. 30, s. 1*7, but the words printed in italics are new, and the former punishment of death is altered to that mentioned in this section. CHAP. XLII,] BY STATUTE. 554 Ireland, the same shall be dealt with, inquired uf, tried and determined Ailmiralty in the same manner as any other felony committed Avithin that juris- j-'J^']' "^ diction. By sec. 15, the act does not extend to Scotland. The 7 & 8 Geo. 4, c. 30, s. 17, enacts, that " if any person shall 7 A 8 Oco. unlawfully ami maliciously set fire to any crop of corn, grain, or pulse, T'-'^'j^,'.^* whether standing or cut down, or to any part of a wood, coppice, oriirotocrops plantation of trees, or to any heath, gorze, furze, or fern, wheresoever "^"Y"'* the same may be growing, every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment." (A The 12 Geo. 3, c. 24, s. 1, enacts, "that if any person or persons 12 Geo. .% shall either within this realm, or in any of the islands, countries, fort.s, ^yiicjii" ' or places thereunto belonging, wilfully and maliciously set on fire, or-^ottinKon burn, or otherwise destroy, or cause to be set on fire, or burnt, or other- ''.''!'' "•.' wise destroyed, or aid, or procure, abet or assist in the setting on fire, war, arsc- or burning or otherwise destroying of any of his majesty's ships or ves-°*''!' ^''•' sels of war, whether the said ships or vessels of war be on float or build- or stores oi" ing, or begun to be built, in any of his majesty's dock-yards, or building war. or repairing by contract in any private yards, for the use of his majesty, or any of his majesty's arsenals, magazines, dock-yards, rope-yards, victualling offices, or any of the buildings erected therein, or belonging thereto; or any timber or materials there placed for building, repairing, or fitting out of ships or vessels; or any of his majesty's military, naval, or victualling stores, or other ammunition of war, or any place or places where any such military, naval, or victualling stores, or other ammuni- tion of war, is, are, or shall be kept, placed, or deposited ; that then the person or persons guilty of any such off"ence, being convicted, shall be adjudged guilty of felony, without benefit of clergy. "(m) *By the *555 second section of this act, any person who shall commit any of the Trial in offences before mentioned out of the realm, may be indicted and tried '?j";fce°A" ^ either in any county within the realm, or in such island or place where such offence shall have been actually committed, as his majesty, his heirs, &c., may deem most expedient for bringing such offender to justice. By the articles of the navy, (22 Geo. 2, c. 33, art. 25) every person Articles oi" who shall unlawfully burn or set fire to any magazine or store of powder, ij'ur"^!^' or ship, boat, ketch, hoy, or vessel, or tackle, or furniture thereunto any i=liip. belonging, not appertaining to any enemy or rebel, shall be punished*'^''®,"! with death, by the sentence of a court martial. ,tc., dcatb. The 39 Geo. 3, c. 69, a public local act, for rendering more commo- -^^^ ^f^"- ^> dious and for better regulating the port of London, enacts, (by sec. 104) actjlottinir "that if any person or persons whomsoever shall wilfully and malici- ^re to (lusly set on fire any of the works to be made by virtue of this act, or ^^"j^^j^^'^g^ any ship or other vessel lying or being in the said canal, or in any of in tbo port the docks, basins, cuts, or other works to be made by virtue of this act, "^ '"^"' ""' (I) See the general provisions of this statute, a?i(e, p. 544, etseq. (m) This offence is still capital, 7 & 8 Geo. 4, c. 22, ss. 6 & 7. As there is no ex- press provision for the punishment of accessories after the fact, they are punishable in the manner stated in note (m), ante, p. 448. Vol. II.— 36 555 OF ARSON AND BURNING, ETC., [bOOK IV. every person so offending, in any of the said cases, shall be adjudged guilty of felony, witLout benefit of clergy." Malice By sec. 25 of the 7 & 8 Geo. 4, c. 30, the punishments imposed by iigainst the^jjjj^j. ^^,^ ^jjj equally apply whether the offence be committed from ma- owner not .,*."' , *^ n 1 1 • / necessary, lice conceived against the owner of the property or otherwise. («) It may be useful to mention some of the cases which occurred upon the statutes now repealed. Cases upon It appears to have been considered that the 9 Geo. 1, c. 22, did not noVrepeal- ^^^^^ *^^ nature of the crime, or create any new offence, but only ex- ed. eluded the principal more clearly from his clergy.(o) The words "set fire to" in that statute did not, therefore, appear to admit of a larger construction than prevails by the rule of the common law;(p) by which, as we have seen, the putting fire into or towards a house, however ma- liciously, does not amount to arson, if either by accident or timely pre- vention no part of it be burned. ( -558 A school room li ol- den to be well de- .scribcd ei- ther as an outhouse, i:\- part of I ho dwell- ing house. («) Elsmorc v. Tho riiindred of St. Briavels,* 8 B. & C. 461. See also Hiles r. The Hun- dred of Shrewsbury, ?> East, 457. ((') Anonymous, 1 Lew. 8. (w) See M'Douald's case, 2 Lew. 46, per Alderson, B. {x) North's case, 1795. 2 East, P. 0. c. 21, s. 5, p. 1021. In the discussion before the judges, 3 Inst. 67, v,-as referred to, where it was laid down that to burn a stable and the like parcel of the mansion-house is felony, but that in the indictment it is sufficient to sa,y (lomam, viz., a barn, malt-house, or the like, without saying mansmiaUm. Ante, p. 552. * Eng. Cora. Law Reps. xv. 266. CHAP. XLII.] BY STATUTE. separated from it only by a narrow passage about a yard wide. The roof of the house, which was of tile, reached over part of the roof of the school, which was thatched with straw ; and the school with a garden and other premises, together with a court which surrounded the whole, were rented by llogers of the parish, at a yearly rent. There was a continual fence round all the premises, and nobody but llogers and his family had a right to ccme within it. Upon these facts it was urged, on behalf of the prisoner, that the building burnt was not a house nor an outhouse within the statute, 9 Geo. 1, c. 22. ]Jut the point being referred to the consideration of the judges, they were of opinion that the building was correctly described in the indictment either as an outhouse or part of the dwelling-house within the meaning of that statute. (?/)f An indictment upon the 7 & 8 Geo. 4, c. 30, s. 2, charged tiic pri- An i>\)on soner in one count with setting fire to an outhouse of W. Deans; in far^i j"J,'i, another with setting fire to a coach-house, and in another with setting compo?.'.! fire to a building and erection, then used by W. Deans in carrying on "og"^"^''.' the trade of a poulterer. The prosecutor was a labourer and poulterer, porting and had between two and three acres of land, and kept three cows. The t'"''"''' "f , r 11 I -wood III 111 building in question was in the prosecutor s farm-yard, and was three or.acro.-a four poles from the prosecutor's dwelling-house, and mio-ht be seen from thom. an.! rill 1 • 1 • 1 • 1 1 T - I • I- • covered It. I he prosecutor used it to keep a cart in, which be used in his busi-^^.jtijg,,..,,, ness of poulterer, and also to keep his cows in at night. There was a as a roof, i^ barn adjoining the dwelling-house, then a gateway, and then aiiother |^°j°" 'j^^, range of buildings which did not adjoiu the dwelling-house or barn ; tiug fire to the first of which from the dwelling-house was a pig-sty, and adjoining ^'"'.f'""' , that was another pig-sty, and adjoining that was a turkey-house, and hcUl .t sot- adjoining the turkey-house the building in question. The dwelling- i'"S'"'c t" house *and barn formed one side of the farm-yard, and the three other hduse sides wore formed by a fence inclosing these buildings. The building "''•'i'" ""■ was formed by si.x upright posts, nearly seven feet high; three in thcj ,. -^q^^' front, and three at the back, one post being at each corner, and the 2. other two in the middle of the front and back, these posts supporting *550 the roof; there were pieces of wood laid from one side to the other. Straw was put upon these pieces of wood, laid wide at the bottom, and drawn up to a ridge at the top ; the straw was packed up as close as it could be packed ; the pieces of wood and straw made the roof. The front of the building to the farm-yard was entirely open between the posts ; one side of the building adjoined the turkey-house, which covered that side all the way up to the roof, and that side was nailed to the tur- key-house. The back adjoined a field, and was a rail- fence, the rails being six inches wide; these came four or five feet from the ground, within two feet of the roof, and this back formed part of the fence before mentioned. The side opposite the turkey-shed adjoined the road, and was a pale fence, but not quite up to the top. One of the witnesses for the prosecution, a considerable fanner, said that he should call the building in question an outhouse. The only part burnt was some of (y) Winter's case, cor. Richards, B., Reading Lent Ass. 813, East. T. 1813. Riiss. & J5y 295. f [Under the act of 1809, a party may be indicted for wilfully Imrning a school-house not parcel of a dwclling-liouse. Such property is embraced by the terms " any other out- house not parcel of a dwelling-house," used in that act. Jonesv. Iluugreford, 4 Gill . Parrott,** G C. & P. 402. The prisoner was acquitted, otherwise the point would have been reserved. See Rex v. Woodward, R. & M. 0. C. R. 323, and Ilex v. New- ill, R. & M. C. C. R. 548, where questions arose, but were not decided, as to whether certain buildings were out-houses. » Eng. Com. Law Reps. xxiv. 453. ' lb. xxxv. 458. t'tiick of straw. 561 OF ARSON AND BURNING, ETC., . [bOOK IV. was not a stack of wood, within the meaning of the 7 & 8 Geo. 4, c. 17.(.), What is not An indictment under sec. 17 of the 7 & 8 Geo. 4, c. 30, for setting fire a stack of ^^ ^ stack of straw, was held not to be supported by eaidence of firing a stack of haulm. The prisoners were indicted for setting fire to a stack of straw, and on the trial it appeared that the stack consisted partly of cole seed straw, and partly of wheat stubble, after the reaping and car- rying the straw; the greater part was of the latter. The jury said that the stubble was haulm j upon which, with the concurrence of Lord Denman, C. J., Gaselee, J., directed an acquittal. (/) What is a A stack which principally consisted of wheat straw, with stubble laid on the top of it to prevent it blowing away, was held to be a stack of straw, within the 7 & 8 Geo. 4, c. 30. The indictment charged the prisoner with setting fire to a stack of straw. The stack was principally wheat straw, the greatest part; the bottom part was of wheat straw, made up after the wheat was carried, half-a-load, the stack was three loads ; there was stubble at the top to keep the straw from blowing *562 away. It is not usual to put stubble on all *straw stacks, but just as the farmer pleases, and upon a case reserved, the judges present were unanimously of opinion that this was a stack of straw. (/<) Philip's It was an offence within the 7 8 & Geo. 4, c. 30, s. 9, for a part-owner case. A £ ^- ^^ g^^^ g^.^ ^^ -j. rj^j^^ vendee of a share in a ship was a com- part owner -^ . . . ^ of a vessel plete owncr if an entry of a bill of sale to him, as the form of the 6 Geo. '"''•u^'^f '^' ^' ^^^} ^- ^"^J requires, was made in the proper book of registry, though offence, it did not express in terms that the bill of sale was produced, because it within the vFould be against the duty of the officer to make the entry, except on 4 c. 30 s. 9. ^i^ch production. The giving a date which has nothing to apply to, but ifhe set fire the production of the bill of sale will imply it. Two or more persons '?*c-veral ^^' "^^J ^^"^^^^ shares in a ship jointly. The prisoner was indicted for setting persons' fire to a certain vessel, the property of the prisoner and of Grenfell and niiiyhold j]^(jy -^[ilx intent to prejudice Grenfell and Eddy, being part-owners shares in a . r j j ? g r shipjointly. of the said vessel. There were other counts only stating Grenfell and As to the Ed(jy to be part-owners, and not taking notice of the interest of the trv in the prisoner. A bill of sale, dated the 7th of August, 1829, from the pri- register of soner, who was then the sole owner, to Grenfell and Eddy, of fl parts derthe 6° ^^ ^^^ vessel, was put in, and the following entry in the book of registry Geo. 4, c. of the vessel, pursuant to the 6 Geo. 4, c. 110, s. 37 : — 110, s. 37. " Custom Souse, Padstow, Wth August, 1829. ''William Philp of Padstow in the County of Cornwall, mariner, hath sold by bill of sale, dated 7th August, 1829, |-| shares to N. Grenfell, («) Bex V. Aris,» 6 C. & P. 348. (/) Rex V. Tottenliam,^ R. & M. C. C. R. 461. T C. k P. 237. The word " haulm " was probably introduced in sec. 10 of the 1 Vict. c. 89, in consequence of this case. See the sec- tion, ante, p. 553. In Rex v. Turner, R. & M. C. C. R. 239, a question was raised whether a stack was a stack of straw within the 7 & 8 Geo. 4, c. 30. The stack Avas made partly of straw, there being two or three loads of it at the bottom, and the residue of haulm, that is the aftermath of the stubble of rye or wheat, about eighteen inches long; according to one Avitness the straw and haulm were mixed. This question was not decided by the judges. At the following assizes the prisoners were again indicted, and one count charged them with setting fire to a stack of straw, called haulm, and Vaughan, B., intimated that it would be unsafe to convict them on this count, and they w^ere convicted on counts for setting fire to a barn and a wheat stack. 4 C. & P.<: 24G. [h) Rex V. Newill, 3 Burn's Just., Doy. & Wms. 999. R. & M. C. C. R. 458. » Eng. Com. Law Reps. xxv. 433. ^ lb. xxxii. 500. = lb. xix. 367. CHAP. XLII.] BY STATUTE. 562 of St. Just, in the County of Cornwall, mine-agent, and R. Eddy, of Penzance in the same County, merchant. " Edward Edwards, Collector. "John Phillips, Comptroller." An indorsement in the like terms was made on the certificate of re- gistry. A subsequent entry of mortgage of the prisoner's shares, after the date of the mortgage deed, added the words "now produced." It was contended for the prisoner, that the bill of sale was not valid, as the C) (j-co. 4, c. 110, s. o7, requires the entry to contain not only the date of the bill of sale, but of the production of it ; Gaselee, J., and IJosaiiquet, J., rather thought that the date of the 11th August, 1829, in the com- mencement of the entry, might be considered as the date of the produc- tion, particularly as it exactly complied with the form given by the act. The jury found the prisoner guilty, and upon a case reserved upon the (jucstion, (among others) whether the ownership of Grcnfell and Eddy had been sufficiently proved, it was contended first, that two persons could not be owners of ||ths of a ship ; the shares held by each not being specified under sec. 32 of the 6 Geo. 4, c. 110 ; secondly, that the transfer was not valid to pass the property, by reason of the omission of the date and the fact of production; that it was no ofi"ence within the statute for an owner or part-owner to set fire to his own ship; but the judges overruled the objections, being of opinion that two or more per- sons might hold shares jointly; and that the entry was sufficient, as the date had no application, unless it applied to the production of the bill of sale and entry thereof by the officer, it *being against his duty to *563 make the entry, but on the production of the bill of sale ; and the con- viction was therefore affirmed. (i) In the course of the trial of an indictment upon the 9 Geo. 3, c. 29, Cotton mill s. 2, now also repealed, which related to the burning of 7nilh, it was",J,^"." "^ objected that a cotton mill was not within the meaning of that statute : 2'.>, s. 2. but the objection was overruled. (_;') In a case in which the construction of the 43 Geo. 3, c. 58, now re- Farring- pealed, came under consideration, it was decided that the " intent to ^^j, to jlj^ ' injure" mentioned in that statute, must be inferred where injury was the intentto in- necessary consequence of the setting fire to the premises, on the gi'^'und jy"°^j''^jj^pj. that a man must be supposed to intend the necessary consequence of his the 43 Geo. own acts. The indictment was for setting fire to a mill, with intent to"' *^-^^* injure the occupiers thereof, and a point was reserved, whether under the 43 Geo. 3, c. 58, it was not necessary to give some evidence of an intent to injure beyond the mere act of setting fire, upon which the judges were unanimous that the party must be taken to have intended what was the necessary consequence of his act.(^) With respect to the indictment, it may be observed, that it is clearly Of the iu- necessary in an indictment for arson at common law to lay the offence "''™*^" • (i) Rex r. Philp, 11. k M. C. C. R. 2G3. Sec this case, ante, p. 545, as to the intent to in- jure. (/) Anon. Lancaster Special Session, May, 1812. 2 Stark. Crim. Plead. 420. (k) Rex V. Farrington, Mich. T. 1811, MS. Baylcy, J., and Russ. & Ry. 207. This case oc- curred in StalTordshire, and at the Lent Assizes for that county in 1812, the opinion of the judges was delivered by Graham, B., when sentence of death was accordingly passed upon tlie prisoner, but he afterwards received a pardon, on condition of his being imprisoned for a year, uud kept to hard labour iu the house of correction. See Rex v. Newill, ante, p. 545. 563 OF ARSON AND BURNING, ETC., [BOOK IV. to have been done u-nfalh/ and malic io nxJ _ij :(l^ and though the words " wilfully find malicious" did not occur in the statute 9 Geo. 1, c. 22, now repealed, yet they seem to have been considered as necessary in an indictment upon that statute. (m)^ The indict- The indictment under the 7 & 8 Greo. 4, c. 30, must have charged the state th"t offence to have been done « unlawfully and maliciously ;" and stating the act was that it was done " feloniously, voluntarily, and maliciously," was not done jm- sufficient. The first count alleged that the prisoners a certain barn and mali- " fclouiously, voluntarily, and maliciously" did set fire to, &c. The ntoiwhj. second count stated that the prisoners a certain stack of straw " felo- niously, voluntarily, and maliciously" did set fire to, &c. Upon reading the indictment, Parke, J., found that it did not pursue the words of tin; statute, as it omitted the word " unlawfully," and he referred to 2 ITawk. P. C, c. 25, s. 96, where it is laid down, << that where a statute uses the word ' unlawfully' in the description of an offence, it is certain that an indictment grounded on it, must use the word ilUciti, or some other tantamount." The indictment, therefore, seemed to the learned judge to be bad, but he left the case to the jury, who found the prisoners guilty ; and upon a case reserved, the judges held that the indictment ought to have charged the act to have been done unlawfully, and they thought it best to order a new indictment to be preferred at the follow- ing assizes, (n) *564 *It was holden not to be necessary to allege the burning of a dwell- ing-liouse : and that the burning of a house only was a sufficient state- ment.(o) And where an indictment on the same repealed statute stated the burning to be of outhouses generally, without specifying their deno- mination, it was holden good.(p) And we have just seen that it was holden to be sufficient, in an indictment upon that statute, to state the burning of an outhouse, if it were such in fact, though in point of law it was parcel of the dwelling-house as being within the curtilage. (5) Where the indictment was for setting fire to a hay-stack upon the same statute, it was decided that it was not necessary to aver that the stack was thereby burnt; that not being requisite to the completion of the offi3nce.(r) Ownership It is material in an indictment at common law that the ownership of house. *^^ house should be correctly stated so as to show it to be the house of another within the principles mentioned in an early part of this chapter. (.s) And stating that the prisoner set fire to a house at, &c., without stating whose house it was, or alleging anything to excuse that statement will not be sufficient. An indictment charged that the pri- soner feloniously set fire to a house situated in the parish of E , and it (/) 2 East, P. C. c. 21, s. 11, p. 1033. Ante, p. 548. In Cox's case, 1 Leach, Yl, it was holden, upon an indictment for perjury at common law, that the words, "falsely, malicious- ly, wickedly, and corruptly," implied that the offence was committed wilfully. (m) Minton's case, 2 East, P. C. c. 21, s. 5, p. 1033. In) Rex V. Turner,^ R. & M. C. C. R. 239. 4 0. & P. 245. 1 Lew. 9. (0) 3 Inst. 67. 1 Hale, 567. Sum. 86. 1 Hawk. P. C. c. 39, s. 1. Ante, p. 538, note (X). (p) Glandfield's case, 2 East, P. C. c. 21, s. 11, p. 1033, 1034. (q) North's case, ante, p. 558. (r) Rex V. Salmon, East. 1802, MS. Bayley, J., and Russ. & Ry. 26. (s) Ante, p. 550, et seq. •j- [In an indictment for an attempt to burn a building, it is not necessary to decribe the combustible materials used for the purpose. The Commomvealth v. Flynn, 3 Gushing, 529.] ^ Eng. Com. Law Reps. xix. 367. CHAP, xlil] by statute. 564 was holden to be ba(l.(<) The facts were that the house belonged to a parish, and the parish permitted a person to live in it who was merely a servant of the parish, and it was wholly unknown who were the trus- tees, or in whom the legal estate was vested ; and it appears to have been holden by the judges, that such house miglit have been laid to be the property of the overseers or of persons unknown. (it) In an indict- ment upon the 1 Vict. c. 89, s. 3, it is as we have seen, by the words of the statute, sufficient to show the house, &c., to be in the possession of the offender, or in the possession of any other person. "With respect to the nature of the possession it appears from a recent case that a house, in part of which a man lives, and other parts of which he lets to lodgers, may be described as his house, though he has taken the benefit of the insolvent debtor's act, and executed an assignment including the house, if the assignee has not taken possession : or at least no objection can be made if in other counts it is stated as the house of the assignee and also of the lodger whose room was set fire to. The indictment described the house first as Fearne's, secondly as Dance's, and thirdly as the prisoner's. Pearne occupied part of it and let out the rest in lodgings ; the room set fire to being let to the prisoner; five months before the fire Fearno was discharged as an insolvent debtor, and had previously executed an assignment, including this house, to Dance ; Dance never took posses- sion. A case was reserved upon the point whether the possession of the house was rightly described, and the judges held that it was: for the whole house was properly in the possession of Fcarne, the possession by his tenants being his possession; and if not, the prisoner's oavu room might be deemed his house. (t') *It has been observed, that it requires great nicety in some cases to *565 distinguish the person who may be said to occupy property s^no jure ;(tr\ and it will in some cases be advisable to state the ownership or posses- sion differently, in different counts, in order to obviate any objection on the grouud of variance. In a case where the indictment laid the whole of the premises consumed by the fire as in the sole occupation of one IJ. Silk, widow, it appeared that the premises burned, consisting of out- houses, were the property of the widow, but were only made use of by her son, who lived with her after his father's death, in the dwelling- house adjoining the outhouses, and took upon him the sole management of the farm, with which these outhouses were used, to the loss and profit of which he alone stood, though without any particular agreement between him and his mother, and he paid all the servants, and purchased all the stock ; but the legal property both in the dwelling-house and farm, was in the mother, and she alone repaired the dwelling-house, and the outhouses in question ; and the indictment in this form was holden to be improper. And Heath, J., held, that as to the stable, pound and hog-styes, which the son alone used, the indictment must lay them to be in his occupation ; and as to the brew-house (another of the outhouses burned,) the mother and son both occasionally paying for ingredients, the beer being used in the family, to the expenses of which the mother in part contributed, though without any particular agreement as to the proportion, that the same should be laid as in their joint occupation (t) Rickman'g case, 1789. 2 East, P. C. c. 21, s. 11, p. 1034. MS. Havlev, J. (?/) 2 East, P. C. ibid. ()') Kex ('. Ball, Mich. T. 1824, MS. Bayley, J., and R. & M. C. C. R. 30. («•) 2 East, P. G. c. 21, s. 11, p. 1034. 565 OF ARSON AND BURNING, ETC., [bOOK IV. The prisoner was afterwards convicted on a second indictment, drawn agreeably to this opinion, and containing two counts ; the first laying the occupation in the son alone, the other laying it in the mother and son; and was executed. (a;) A house The prisoner who was the wife of James Wallis, was indicted for innybede- getting fire to a certain house in the possession of the said J. Wallis, scribocl lis o 1 / in tlio iios- with intent to injure M. Wright. The second count charged her with session of the like offence with intent to iniure Lord Yarborough. The prisoner's the actual . . occupier, husband was a labourer of Mr. Wright, who provided him with the though his house in question as part of his wages. The house was Lord Yar- /rwRup'rul borough's property, and was let with a large farm, and other cottages for the accommodation of labourers on the farm, by his lordship to Wright. Wright, being dissatisfied with Wallis's conduct, discharged him from his service, and told him to quit his house in a month, which time he allowed him to procure another residence. Two days after the expiration of the month, Wallis and the prisoner and his family still continuing in possession, Wright and two of his servants went in the daytime, whilst the husband was out, to strip off" part of the thatch, in order to force them to quit. The prisoner resisted ; struck at the men with a pitchfork; knocked out the windows and doors; made a fire with the fragments on the floor of the house, and thereby set the house on fire, and burned it down. The jury found that she wilfully set the house on fire ; and that the fire communicated to the house whilst Wallis con- tinued in the actual possession of it by means of his family and furni- ture. The learned judge thought the indictment should have been "^560 framed diff'ereutly, *and should have stated the house to be in the pos- session of Wright, Wallis having, at the time of the fire, no lawful possession, but the legal possession being in Wright : an offence com- mitted under similar circumstances would have been capital before the passing of the 43 Geo. 3, c. 58, (w) and would have been a felony at common law. But, upon a case reserved, the judges present held, that as Wallis was the actual occupier, the statement was proper, and the conviction right. (x) As to i:iy- It was considered in a case under the 7 & 8 Geo. 4, c. 30, s. 9, that an mg an in- 5Qf]ictQjent for settino; fire to a bara;e ouo-ht to contain an averment that tent to in- _ .... jure in an it was done with intent to injure the owner. The prisoner was indicted indictment f^j. iijiyjng wilfully and maliciously set fire to a barge, the property of a barge. '^ H. Stevens, and there was no averment that the prisoner did it with in- tent to prejudice, &c. Alderson, J., was of opinion that such an aver- ment was necessary, and upon its being submitted for the prosecution that the indictment was sufficient without it, Alderson, J., observed, that at least it would have been safer to have had it; but said that he would confer with Mr. J. Gaselee on the point, and if he agreed with him, he would reserve this case for the opinion of the judges. Gaselee, J., on being consulted, was of opinion that the indictment was insufficient : but the prisoner was acquitted, and therefore any further consideration of the case became unnecessary. (y) An indict- The prisoner was indicted in the first count for setting fire to an out- (z) Glandfield's case, cor. Heath, J., Exeter Spr. Ass. 1791. 2 East, P. C. c. 21, s. 11, p. 1034. (m) Gowen's case, 2 East, P. C. 102 7.(x) Rex v. Wallis, R. &. M. C. C. R. 344. (y) Rex r. Smith,* 4 C. & P. 560, March 15, 1831. This case occurred before Rex v. NewlU, infra, and it may therefore perhaps be doubted whether the opinion expressed by the learned judges in this case may not be considered as overruled by that case. C. S. G. * Eng. Com. Law Reps. xix. 531. CHAP. XLII.] BY STATUTE. oG6 house in the possussion of Chcttlc, with intent thereby to injure Chcttlc, •"'•■•"' under and to a certain stack of straw belonging to Chcttlc; in the second [;^?„ 4 ^ count for setting fire to an outhouse, and in the third, for setting fire to "*J, for set- a certain stack of straw belonging to Chettlo, not saviufr with intent to ^'"^ *'/" ^." ... 11-1 " '*'"*=« ot injure, cVC. And, tippn a case reserved, the judges present were unani- miuw was raously of opinion, that as the 17th clause of the act Iiad no words of *^'""'' "''''* ■ ./.,, ^ / \ •'"' Inymz intent, the last count was good.(^,vj m, im\.„i; The judge will take judicial notice that beans are <' pulse," and there- Auinclict- i'ore where an indictment charged the prisoner with setting fire to a cer- """'l*^ ^"^' tain stack 01 beans, upon a case reserved, the judges present unani- toastfickof inously hold that they were bound to consider beans as a species of pulse, 'jfans is and the conviction was affirmed. (a) '^ So the judges will take notice that barley is corn or grain; where, So a .stack therefore, au indictment charged the prisoner Avith setting fire to a stack "' '^''''''ley- of barley, Patteson, J., held that it was sufficient.(6)f An indictment which alleges that the prisoner on such a day, and Statement at such a place, "feloniously, unlawfully and maliciously did set fire to"^^'l*'°*" a certain stack of barley of 11. P. W., then and there being," .sufficiently states the property to belong to R. P. W., and there is no necessity for such an indictment to state that the prisoner did " then and there" set fire, &c.(f) *The general provisions of the 7 Greo. 4, c. G4, as to the statement *5G7 of the ownership of partners, joint tenants, itc, and the ownership of '^"'"'^r.^^ip property belonging to counties, parishes, &c., will apply to pro.secutions ofpartn"rJ, for the ofi'ences now under consideration. (f/) joint-ten - In a case where the prisoners were charged with setting fire to a ''"l^! \ house, the proof adduced by the first witness of their having been pre- sent in the house, and implicated in the fact, was that a bed and blan- kets, which had been taken out of the house at the time it was fired, and concealed by them from that time, were afterwards found in their posses.sion ; and Buller, J., doubted at first whether such evidence of another felony could be admitted in support of this charge. But as it seemed to be all one act, although the prisoners came twice to the house fired, which was adjoining to their own, he admitted this amongst other evidence. (f) It was ruled upon an indictment for arson, that the books of an in- surance company arc not evidence of an in.surance, unless notice had insu'nuice. been given to produce the policy.(/) In a modern case of an indict- ''>tanip. ment for feloniou.sly setting fire to a house with intent to defraud au insurance company, a policy of insurance was given in evidence on the part of the prosecution, by which the prisoner's goods, in a house des- cribed in the policy, were insured against fire, and upon which a memo- (r) Rex !'. Newell, R. & M. C. U. R. I.">8. Another question Avas reserved as to the out- liousc, but as a stack was burnt, and the conviction affirmed on the last count, the .judgo> thougiit it unnecessary to consider the (inestion as to the outhouse. See this case, ante, ji. .')4."), as to the person intended to be injured. (a) Rex I'. Woodward, R. & .M. C. C. R. 32:!. (b) Rex V. Swatkins,'' 4 C. &. P. 548. (c) Rex V. Swatkins, uln supra. (rl) See ante, p. 120, et seq. (c) Hickman's case, 1789. 2 East, P. C. c. 21, s. 11, p. 1035. (/) Rex. V. Doran, cor. Kenyon, C. J., 1 Esp. 127. ■)■ [An indictment for burning stacks of wheat is not supported by evidence of burning shocks of wheat. Denboio v. The Sfatc, 18 Ohio, 11.] * Eng. Com. Law Reps. xix. 531. b lb. xi.x. 520. 567 OF ARSON AND BURNING, ETC. [BOOK IV. randum was indorsed, stating that the goods insured had been removed from the house described in the policy to another house mentioned in the memorandum. In this house so mentioned in the memorandum the prisoner was charged with having committed the felony. The policy was properly stamped, but the memorandum had no stamp : and upon this circumstance an objection was taken on behalf of the prisoner, that it was essentially necessary to show, in support of the charge, that there subsisted a legal effective contract; and that, by the express provisions of the stamp acts, the memorandum in question not being stamped, could not be given in evidence, or be good or available in any manner whatever. The point being reserved for the consideration of the twelve judges was argued before them j and the conviction was held to be wrong. (_y) Tho offence The offence of setting fire to a stack of corn is not local but transi- of setting tory ; it is therefore no objection, upon the plea of not guilty, to an in- stack of dictment, that it alleges the fire to have taken place at a different place corn is not from what it did, or at a parish which, in fact, does not exist. The in- there'fore a <3ictment charged that the prisoner, at the parish of Normanton on the variance in Would, in the county of Nottingham, set fire to a certain outhouse there the place gituate, and to a certain stack of beans then and there being, with in- laid in the ; t i i • i • i indictment tent, &c. The second count stated that the prisoner at the parish IS immate- aforesaid, set fire to a certain outhouse there situate, &c. The third count stated that the prisoner at the parish aforesaid, set fire to a cer- tain stack of beans, &c. The house was in Normanton on the Would, in the county of Nottingham, which is a hamlet, maintaining its own * 'ifiH V^^^} ^^^ ^^ ^^ *^6 *parish-of Plumtree ; there is no such parish as Nor- manton on the Would, in the county of Nottingham; but there are two parishes called Normanton in the county, one called Normanton on the Sour, the other Normanton on Trent. Gaselee, J., and Littledale, J., doubted whether the prisoner could be convicted on this indictment. The objection seemed to be more particularly applicable to the charge as to the outhouse, as there was a local description given to it which should be proved as laid, and even if the words on the Would could be rejected as surplusage in mentioning the parish, still there was no such parish as Normanton singly. But they thought the objection as to the outhouse not material, if the indictment were correct as to the stack of beans ; and as to that, the first question would be, whether the setting fire to that were to be considered as of a local nature as to the parish, or -whether it were to be considered in the same light as common lar- ceny, which need not be proved in the parish alleged, provided it be in the county, and if it should be put on the same ground as common larceny in this respect, then a question would arise, whether, as it was proved negatively that there was no such parish as Normanton on the Would in that county, the indictment could be sustained. And, upon a case reserved, the judges present unanimously held that the offence of setting fire to the stack of beans had nothing of locality in it, and that there was no such place in the county could only be taken advan- tage of by plea in abatement, and the conviction was affirmed. (/i) (ff) Gilson's case, 1807, 2 Leach, 1007. 1 Taunt. 95. Russ. & Ry. 138. But there was considerable difference of opinion, the conviction being held wrong by six judges only against five who were of a contrary opinion. (h) Rex V. Woodward, R. & M. C. C. R. 323. A question was also raised, but not decided in this case, as to whether the building was an outhouse within the meaning of the 7 & 8 CHAP. XLIII.] OF MAIMING AND KILLING CATTLE. 568 The punisbuicnt of priueipals iu the second degree and of accessories I'^neipals has been already mentioned amongst the general provisions of the Icondde-" Vict. C. 89 (t) gree and In conclusion of this chapter, it may be mentioned, that by the 6 "'^'^'-'*^'^'''°^- ^ Anne, c. 31, s. 3, and 14 Geo. 3, c. 78, s. 84, if any menial or other j,yj."^^„f^ °" servant, through negligence or carelessness, shall fire, or cause to be tiring uuy lired, any dwelling-house, or out-house, and be convicted thereof, by J|y"i^„ysg oath of one witness before two justices, he shall forfeit 100/. to the through churchwardens, to be distributed amongst the sufferers by such fire ; "'■'o''o'^'i<='-'- and if he shall not pay the same immediately, on demand of the church- wardens, he shall be committed by the justices to some workhouse, or cinamou gaol, or house of correction, for eighteen months, there to be kept tu hard labour. ^CHAPTER THE FORTY-THIRD. *569 OF MAIMING AND KILLING CATTLE.(A) It has been holden that no indictment lies at common law for unlaw- No indict- fully with force and arms maiming ahorse. The indictment charged 1."^^^^^^^^ "■ t!iat the prisoner, on, &c., with force and arms, at, &c., ''one black hiw lor uu- irelding of the value of 30/., of the goods and chattels of one William '^;^^f"ll.y '' Collyer, then and there being, then and there unlawfully did maim ; to maiming a the great damage of Collyer, and against the peace, &c." upon reference ^'"'se. to the judges after conviction, they all held that no indictable offence was stated in the indictment; that if the case were not within the Black Act, 9 Geo. 1, c. 22, now repealed, the fact itself was only a trespass ; and that the words vi et armis did not imply force sufficient to support an iudictment.(a) The 6 Geo. 1, c. 22, (commonly called the Black Act,) was for aeon- Statutes, siderable time the principal statute upon the offence of maliciously maiming and killing cattle. But the clause in that statute relating to offences of this description was repealed l>y the 4 Geo. 4, c. 54, by which a lesser degree of punishment was provided for such offences, and the (Jeo. 4, c. 30. There seems no reason to iloubt, although no opinion was given by the judges on the point, that the description of the outhouse being local, was bad. See ante. p. 113. ■ Si) Ante, p. 554. a) Ranger's case, 1798, 2 East, P. C. c. 22, s. 99, p. 1074. (A) Tenxksskk. — It was held in the case of the State v. Council, that on a indictment for malicious mischief, it is not necessary to prore express malice ; and that the killing a horse is an indictable offence at common law. 1 Overton's Rep. 305. 1 Dall. 335. jSee also ante, Vol. I., p. 42, note (A), 52, note [2]. 1 Aikens's Rep. 226, State v. Briggs.} The malicious maiming and disfiguring of cattle, is punished by particular statutes iu most of the States to which the reader is referred. Massachusetts. — In the case of tlie Commonwealth v. Leach and al., 1 Mass. Rep. 58, it was unanimously held by the court, that an indictment for poisoning a cow, was within the jurisdiction of the (then) court of sessions ; and the indictment, which was at common law, was held good, and the motion in arrest of judgment overruled. Indictments at common law, for maliciously poisoning fowls, have been sustained in Massachusetts, in several cases at niii prius, whicli have not been reported. {New York. — By the Revised Statutes of New York, wilfully administering poison to any horse, cattle or sheep, or maliciously exposing any poisonous substance, with intent that it shall be taken or swallowed by any horse, cattle or sheep, subjects the offender to impri- sonment, or fine, or both. YoL II., G89.| 569 OP MAIMING AND KILLING CATTLE. [BOOK IV. enactment of the statute 9 Geo. 1, was made somewhat more general. The latter, however, having been repealed by the 7 & 8 Geo. 4, c. 27, the statute upon this subject at the present time is the 7 & 8 Geo. 4, c. 30. 7 A 8 Geo. This statute, by sec. 16, enacts, '^ that if any person shall unlawfully *' ''•i!^.',.^^,. and maliciously kill, maim, or wound any cattle, every such offender or m^juiiug shall be guilty of felony, and being convicted thereof, shall be liable at cattle. tijg discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years; and, if a male, to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment." 1 Vict. c. The 1 Vict, c 90, s. 2, recites this section, and that it is expedient 90, s. 2. jq alter and amend the said recited act, and then repeals so much of the said act " as relates to the punishment of persons convicted of any of the offences hereinbefore specified," and enacts that ''every person convicted, after the commencement of this act, (1st of October, 1837,) of any of such offences respectively, shall be liable to be transported beyond the seas for any term not exceeding fifteen years, nor less than ten years, or to be imprisoned for any term not exceeding three years." *570 *And by sec. 3, " it shall be lawful for the court to direct such im- prisonment to be with or without hard labour, in the common gaol ov house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, or of such imprisonment with hard labour, not exceeding one month at any one time, and not exceeding three months in any one year, as the court in its discretion shall seem meet." As to the As this statute relates to the offence of maiming, &c. " cattle" in cen- the^word ° ^^^^' ^*' ^^^^ ^'^ proper to introduce some of the cases in which the mean- •• cattle" in ing of tha tword in the repealed clause of the 9 Geo. 1, c. 22, became the 9 Geo. ^^^ subject of decision. The 9 Geo. 1, c. 22, was considered as extending, and not as abridg- ing the offences described in the 22 & 23 Car. 2, c. 7. Where the pri- soner had been convicted on an indictment framed on the 9 Geo. 1, c. 22, for killing a mare and a colt, it was moved in arrest of judgment ; first, that the mare and colt were not averred in the indictment to be cattle within the meaning of the act; and, secondly, that the word cat- tle did not necessarily include horses, mm'es and colts. In support of these objections, several statutes w^ere cited, in which different sorts of animals were particularly specified, (&) and several others, in which ''horses" and "horses and mares" seemed to be contradistinguished from and not included in the word " cattle. "(c) But the judges agreed unanimously that as the 22 and 23 Car. 2, c. 7, had made the offence of killing horses by night a single felony, the 9 Geo. 1, c. 22, was only to be considered as an extension of that act; and some precedents of capi- tal convictions were cited upon this branch of the statute, though none of executions. It was therefore agreed that judgment of death shouhl (b) 3 & 4 Ed. 6, c. 19. 5 & 6 Ed. 6, c. 14, and 31 Geo. 2, c. 40, for regulating the sale of cattle. (c) 12 Car. 2, c. 4, (book of rates). 22 Car. 2, c. 13. 14 Geo. 2, c. 6. 15 Geo. 2, c. 34. But see the observations in 2 East, P. C. c. 22, s. 18, p. 1075, that the argument from the statutes 14 & 15 Geo. 2, will lose much of its force from adverting to the preamble of the tirst of those statutes. CHAP. XLIIT.] OF MAIMING AND KILLING CATTLE. 570 be given against the prisoner at the next assizes. ((?) This point received a similar determination in subsequent cases. (f) And it is observed that it is plain that the legislature must have intended to include horses in the word " cattle," when in the statute of Car. 2, they speak of " hor- ses, sheep, or other cattle;" and by the statute of Grcorgc the First they exclude from clergy such as kill, &c., any cattle; which latter statute was evidently intended to enlarge, and not to restrain, the description of the folony.(/) It was subsequently decided that j^i'l/s were cattle within the 9 Geo. 1. Upon a conviction for poisoning pigs, the point was saved, whether pigs were cattle within the act, and the judges held that they were.(y) The same decision more recently took place with respect to asses. The prisoner was convicted under the act of maiming and wounding two asses, and Richards, C. B., saved the point whether asses were within that act ; and, upon a case reserved, the judges (ele- ven being present) held that they were.(^) *It was also held upon the 9 Geo. 1, c. 22, that the repealed clause *,571 extended to such as should maim or wound any cattle, though the cattle As to th< were not destroyed, which by the 22 & 23 Car. 2, c. 7, was left a mis- a''^-^"^ demeanor at most, punishable only by action to recover treble damages, ing," Ac. It was decided, therefore, upon the 9 Geo. 1, c. 22, that the maimingor J'"^^^ *^*' wounding need not be mortal ; and that the wounding need not even 22. be such as to cause a permanent injury. Thus, upon an indictment The which charged the prisoner, in one count, with maiming, and in another wounding with wounding a gelding; and, upon proof that he had maliciously, andp'usc'a* with an intent to injure the prosecutor, driven a nail into the frog of theperm&nant horse's foot, whereby the horse was rendered useless to the owner, and '"J""'" continued so at the time of the trial, but was stated to be likely to do well, and to be perfectly sound again in a short time, judgment was res- pited, after conviction, upon a doubt whether, as the horse was likely to recover, and as the wound was not a permanent injury, the offence was within the statute ; but the judges held the conviction right, and considered the word " wound" in the 9 Geo. 1, to be used as contra- distinguished from a permanent injury, such as maiming.(A The clause in the late act appears to admit of a similar construction. The prisoner was charged in different counts with having unlawfully, Pourinp feloniously and maliciously killed, maimed and wounded a certain mare. ",*"^ ^^^°. tllO GV6 Oi & The two first counts charged the prisoner with having unlawfully, felo- maro and niously and maliciously killed the mare, against the form of the statute, tl'treby The first, stating the means used by the prisoner for that purpose, ig'^Vm fm- namely, the pouring nitrous acid into the left ear of the mare, and also ing within stating as a fact that the prisoner thereby killed the mare, and the se- ^^® s^*^'"'*- cond count, merely stating as a fact, that the prisoner killed the mare ; the third count, charged the prisoner with having unlawfully, felo- niously and maliciously maimed the marc, against the form of the sta- tute ; and the fourth count charged the prisoner with having unlawfully, (rf) Paty'g case, Abingdon Sum. Ass. 1V70. 2 Rlack. Rep. 721. 1 Leach, 72. 2 East, P. 0. c. 22, s. 18, p. 1074. At the next assizes the prisoner was reprieved for transportation ; and afterwards (upon a strong application from the country,) he received a free jmrdon. (e) Mott's case, 0. B. 1783. 1 Leach, 73, note [a). Moyles's case, cor. Duller, J., Bodmin Sum. Ass. 1791. 2 East, P. C. c. 22, s. 18, p. 1076. (/) 2 East, P. C. c. 22, s. 18, p. 1076. Iff) Rex V. Chappie, Mich. T. 1804, MS. Bayley, J., and Russ. & Ry. 77. (h) Rex I'. Whitney, Hil. T. 1824, MS. Bayley, J-, and R. & M. C. 0. R. 3. (j) Haywood's case, 1801, 2 East, P. C. c. 22, s. 20, p. 1076, Russ. & Ry. 16. Vol. II.— 37 '>71 OF MAIMING AND KILLING CATTLE. [bOOK IV. feloniously and maliciously wounded the mare, against the form of the statute. On the trial it was proved that the prisoner did pour a quan- tity of nitrous acid, which he had shortly before purchased, into the mare's left car ; and that he had either also poured some of it into the left eye, or, what was more probable, that some of the acid, which he had poured into the ear, had run along a furrow which it had made from her left ear upon her left temple, and so into her left eye, and that he had thereby occasioned the immediate blindness of that eye. The mare continued to live, in extreme pain, about ten days, when, in order to put her out of her misery, she was stuck with a knife, and bled to death. Two surgeons stated that the injuries which were done to the car (which was produced) were not wounds but ulcers, though such ulcers would have turned to wounds. Upon this state of facts, the nitrous acid not having been the proximate and immediate cause of the death of the mare, and the surgeons having deposed that the nitrous acid had not produced what they could technically call wounds, the court recommended the jury, if they were satisfied of the guilt of the prisoner, to find their verdict against him on the third count of the in- *5T2 dictment, and to acquit him on the other *counts : the jury having found a verdict accordingly, a case was reserved upon the question, whether the injury done to the eye of the mare in the manner and by the means above stated, was a maiming within the meaning of the 7 & 8 Geo. 4, c. 30, s. 16 ; and the conviction was ai£rmed.(_;') Wounds in- The prisoner was indicted under the 4 Geo. 4, c. 54, s. 2, for felo- ^'^j^^^J^y ''^ niously wounding a sheep, and it appeared that he had set a dog at the sheep. sheep, and that the dog, by biting it, inflicted several severe wounds. Park, J. A. J., ''This is not an offence at common law, and is only made so by statute; and I am of opinion that injuring a sheep by set- ting a dog to worry it, is not maiming or wounding within the meaning of the statute. "(A;) Burning a If a person maliciously set fire to a building in which a cow is, and tyUh a°fow *^^ ^^^ ^^ burnt to death by the fire, this is a killing within the statute, in it. The prisoner was indicted under the 7 & 8 Geo. 4, c. 30, s. 16, for maliciously killing a cow, and it appeared that the building, in which the cow was kept, had been set fire to by the prisoner, and that the cow had been burnt to death in it. Taunton, J., "It the prisoner set this place on fire while the cow was in it, and the cow was thereby burnt to death, that is a killing the cow by him within the meaning of this act of parliament.''(A Malice to Under the repealed clause of the 9 Geo. 1, c. 22, malice to the owner not neccs- ^^ ^^^ cattle was a necessary ingredient to constitute the offence there ■iarj. created, and numerous decisions took place as to the nature and proof of this malice, to which it is unnecessai-y to refer, as under the late sta- tute the ofi"ence will be complete, whether it be committed from malice conceived against the owner, or " otherwise." hn) On the trial of an indictment under the 7 & 8 Geo. 4, c. 30, s. 16, (/) Rex V. Owens, R. & M. C. C. R. 205. See Rex v. Murrow, R. & M. C. C. R. 456, ante, voL 1, p. 131. (k) Rex V. Hughes,* 2 C. & P. 420. But see Elmsley's case, 2 Lew. 126, where Alderson, T., thought a wound inflicted by the bite of a dog was a wound within the 9 Geo. 4, c. 31, l>iit intended to reserve the point if it became necessary. As to what injuries constitute wounds, see vol. 1, p. 729, et seq. C. S. G. il) Rex V. Haughton,^ 5 C. & P. 559. (w.) Sec. 25, ante, p. 544. * Eng. Com. Law Reps. xii. 200. '' lb. xxv. 454. CHAP. XLIII.] OF MAIMING AND KILLING CATTLE. 572 for uulawfully and maliciously wounding cattle, it is not necessary to show personal malice against the owner of the property. It is enough that there was a mischievous motive, though not partlcuhar malice to- wards the owner. [«) It should seem that the indictment upon the late statute ought, *likc *573 an indictment upon the repealed clause of the 3 Geo. I, c. 22, to specify In'Hctment the kind of cattle injured, and that such statement must be supported jg|j,.g^'" by the evidence. In an indictment upon the 9 Geo. 1, c. 22, the pri- soner was charged with maliciously killing certain cattle, viz. a mare, and he was convicted, but upon referring to the evidence, it did not appear that there was any evidence of the se.x of the animal killed. A case being reserved, the first question considered was, whctlier the al- legation that the prisoner killed certain cattle, without specifying what, would have been sufficient, because then what was stated under the videlicit might be rejected; and the judges thought that it would not have been sufiit-ient, and they were clear that it was essential that some evidence should have been given that the animal was a mare.(o) If a prisoner were indicted for maliciously killing cattle by poison, Other acu other acts of administering poison would be admissible in order to show '.'' ?^"™>°'8- . . ° . . . ... teriDg poi- the intent. The prisoner was indicted for a misdemeanor in adminis-son are ad- tering sulphuric acid to six horses, with intent maliciously to kill them, "'"^''^le to . . . •' .«how the and it api)farud that the prisoner mi.xed sulphuric acid with a quantity intent, of corn, and that having done so, he gave each horse his feed, all the horses being in the same stable. Sulphuric acid is sometimes given to horses by grooms, under an idea that it will make their coats shine. Park, J. A. J., held that several acts of administering sulphuric acid were admissible; as they might go to show whether it was done with the intent charged in the indictment ! and he left it to the jury to say whether the prisoner had administered the poison with the intent im- puted in the indictment, or whether he had done it under the impres- sion that it would improve the appearance of the horses; for that in the latter case they ought to acquit him (/>) Every principal in the second degree, and every accessory before the ^I'lncipals fact, is punishable in the same manner as the principal in the first J."|jjj^°" degree; and every accessory after the fact is liable to be imprisoned gree and for any term not exceeding two years, (g') accessoncH. (n) Reeves Wilson's case, 1 Lew. 226. It may admit of some doubt whetlicr this be the present state of the law, as the 7 & 8 Geo. 4, c. 30, s. 25, an/c, p. 544, only applies to " every punishment and forfeiture by (hU act imposed," and the punisliment for the oflcnces men- tioned in this section is repealed by the 1 Vict. c. 90, s. 2, and the present punishment i.'^ imposed by the I Vict. c. 90, ss. 2 and 3. It was clearly settled that in order to bring an oftendcr within the 9 Geo. 4, c. 22, the malice must have been directed against the owner of the cattle, and not merely against the animal itself. 2 East, P. C. c. 32, s. KJ, p. 1072. Pearce's case, ibid., 1 Leach, 527. llcan's case, I Leach, 527. Shepherd's case, 1 Leach, 5.'!9. Rex V. Austen, Russ. & Ry. 490. In all these cases, except the last, there appears to have been express malice against the animal wounded, and no malice against the owner ; und in the last the malice was against a person who was not the owner. " But it does not appear to have been decided that it is necessary to give express evidence of previous malice against the owner in order to bring a case within the act ; but the fact being proved to be done wilfully, which can only proceed from a brutal or malignant mind, it seems a ques- tion solely for the consideration of the jury to attribute the real motive to it, to which the transaction itself will most probably furnish a clue." 2 East, P. C. c. 22, s. IG, p. 1074. Ranger's case, ibid., and see the cases, ante, p. 544, 545, 563. C. S. G. (o) Rex V. Chalkley, December, 1813, Russ. & Ry. 258. (/>) Rex V. Mogg," 4 C. & P. 364. The learned judge also held that the evidence proved a joint administering of the sulphuric acid to all the horses. [g) Ante, p. 540, where the other general provisions of the act are stated. Mr. Lonsdale • Eng. Com. Law Reps. xix. 420. i73 OF INJUKIXG AND DESTROYING TREES ETC. [BOOK IV. The 5 & 6 Wm. 4, c. 59, s. 2, makes any person cruelly beating or otherwise ill-treating any cattle, &c., or improperly driving the same, liable to be summarily convicted. *574 *CHAPTER THE FORTY-FOURTH. OF INJURING AND DESTROYING TREES, SHRUBS OR UNDERWOOD. (A) Offences by Offences of the kind mentioned in the title to this chapter, were former statutes. toruier treated only as trespasses and misdemeanors by several ancient statutes; they were afterwards made offences of the degree of felony; but all the statutes upon this subject were repealed by the 7 & 8 Geo. 4, c. 27, and the present law is contained in 7 & 8 Geo. 4, c. 30. 7 & 8 Geo. By sec. 19 of this statute, '< if any person shall unlawfully and ma- 4, c. 30, s. nciously(a) cut, break, bark, root up, or otherwise destroy or damage Destroying the whole or any part of any tree, sapling or shrub, or any underwood, or damag- respectively growing in any park, pleasure ground, garden, orchard, .shrubrie. 0^ avenue, or in any ground adjoining or belonging to any dwelling- growing in house,(i) every such offender (in case the amount of the injury done ""'^"J? shall exceed the amount of one pound) shall be guilty of felony, and shall be ' being convicted thereof, shall be liable, at the discretion of the court to felony, if j^g transported beyond the seas for the term of seven years, or to be im- excee'ds one prisoned for any term not exceeding two years, and if a male, to be pound; the Q^gg^ twice or thrice publicly or privately whipped, (if the court shall erowin" SO think fit,) in addition to such imprisonment ;(c) and if any such per- obserres, (St. Cr. L. 136,) that "the 7 & 8 Geo. 4, c. 30, was not repealed by the 1 Vict. c. 90, so far as relates to principals in the second degree and accessories before and after the fact to any offence affected by the latter act, nor does that act contain any provison for their punishment ; they consequently continue punishable under the 26th section of the 7 & 8 Geo. 4, c. 30." But as that section onlj- applies to felonies ]JU7iishabIe under (hat act, and these felonies are now no longer punishable under that act, this may be doubted. If that section no longer applies, then there is no provision expressly made for the punishment of principals in the second degree and accessories, and they are consequently punishable in the manner stated in note (m), ante p. 448. C. S. G. (a) ?('c sec. 25, arite, p. 544. (h) As to the meaning of the terms " garden," and "adjoining to," see Rex v. Hodges,* Moo. & M. 341, ante, p. 68. (c) The present punishment (under this section and sec. 27, and the 1 Vict. c. 90, s. 5,) is transportation for seven years or imprisonment for any term not exceeding two years. (A) Pennsylvania. — In the case of the Commonwealth r. Hoover and al., 1 Browne, Appx. XXV., it was decided, that on an indictment for cutting timber trees, it was sufficient to show that the prosecutor was in posssesion under a claim of title to the land on which the timber was cut. A motion in arrest of judgment, and for a new trial, was made for the following- reasons: — I. That the indictment did not specify the particular kind of timber trees, whether black or white oak ; — 2. That the prosecutor did not show any title to the land on which the timber was cut; — 3. That he did not prove any possession in himself of the piece of ground whereon the said timber was cut, nor any right of possession, except by producing a survey which was said to include it; — 4. That the act of Assembly on which the defen- dants were indicted is obsolete by non user. These several reasons were overruled by the court, who decided, "that the indictment was sufficiently clear and specific in stating the kind of timber (which were alleged to l)e twenty oak timber trees,) charged to have been cut by the defendants on the land of the prosecutor; that the title of the prosecutor to the land on which the timber was cut, could not be brought in question, on the charge contained in the indictment, if it appeared that he was in full possession, under a claim of title; and that the possession of the property was sufficiently proved to warrant the finding of the jury." » Eng. Com. Law Reps. xxii. 330. CHAP. XLIV.l OF INJURING AND DESTROYING TREES, ETC. 574 son shall unlawfully and maliciously cut, break, bark, root up, or other- *^'8'^'^''<^'''' 1 .111 \ e . V 11 shall bo wise damage the whole or any part or any tree, sapling, or shrub, or fyiy„,,jf^h(, any underwood, respectively growing elsewhere than in any of the vulue ox- situations hereinbefore mentioned, every such offender (in case thef'''°^,f, ^" amount of the injury done shall exceed the sum of five pounds) shall be guilty of felony, and being convicted thereof, shall bo liable to an}' of the punishments which the court may award for the felony herein- before last mentioned." By sec. 20, " if any person shall unlawfully and maliciously cut, Destroyinj; break, bark, root up, or otherwise destroy or damage the whole or any °,^^ "l^r'uef ' part of any tree, sapling, or shrub, or any underwood, wheresoever the slimUs, Ac, same may be respectively "-rowiuir, the injury done bein) Sec sec. 3 ante, p. 570, as to hard labour and solitary confinement; and as to tlie punishment of principals in the second degree and accessories, see note (j), ante, p. 57.3. =^78 OF DESTROYING DAMS AND FISH PONDS, ETC. [bOOK IV. * CHAPTER THE FORTY-SEVENTH. OF BREAKING DOWN, ETC., SEA BANKS, LOCKS, AND WORKS ON RIVERS, CANALS, ETC. Destrojing The 7 & 8 Geo. 4, c. 30, s. 12, enacts, "that if any person shall un- bank "^Ac lu-wfully and maliciously(a) break down or cut away any sea bank or or works on sea wall, or the bank or wall of any river, canal, or marsh, whereby any river or ^^y lands shall be Overflowed or damaged, or shall be in danger of being so ; or shall unlawfully and maliciously throw down, level, or otherwise destroy any lock, sluice, floodgate, or other work on any navigable river or canal ; every such offender shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprison- ment ; and if any person shall unlawfully and maliciously cut off, draw Kemoving up, or remove any piles, chalk, or other materials fixed in the ground, a'ny^er ^ ^^^ ^^^^ ^^^' Securing any sea bank, or sea wall, or the bank or wall of bank, &c., any river, canal, or marsh ; or shall unlawfully and maliciously open oT doing Qj. (jj.^^ yp any floodgate, or do any other injury or mischief to any age to ob- navigable river or canal, with intent and so as thereby to obstruct or struct the prevent the carrying on, completing or maintaining the navigation ofa river or thereof; every such offender shall be guilty of felony, and, being con- canal, victed thereof, shall be liable, at the discretion of the court, to be trans- ported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years ; and, if a male, to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment." (6) *579 ^CHAPTER THE FORTY-EIGHTH. OF DESTROYING THE DAMS OF FISH-PONDS, ETC., OR MILL-PONDS, AND OF PUTTING NOXIOUS MATERIALS INTO FISH-PONDS, ETC. breaking The 7 & 8 Geo. 4, c. 30, s. 15, enacts, " that if any person shall unlaw- dam°of a ^"^^J ^^^ maliciously(aa) break down, or otherwise destroy the dam of fisbery, any fish-pond, or of any water which shall be private property, or in which there shall be any private right of fishery, with intent thereby to take or destroy any of the fish in such pond or water, or so as thereby to cause the loss or destruction of any of the fish ; or shall unlawfully and maliciously put any lime or other noxious material in any such pond or water, with intent thereby to destroy any of the fish therein ; or shall unlawfully and maliciously break down or otherwise destroy the dam (a) See sec. 25, ante, p. 544. (b) As to the punishment of principals in the second degree and accessories, see 7 & 8 Geo. 4, c. 30, s. 26, ante, p. 54G, and as to hard labour and solitary confinement, see the 7 & 8 Geo. 4, c. 30, s. 27, and the 1 Vict. c. 90, s. 5, ante, p. 547. (aa) See sec. 25, ante, p. 544. &c mill dam CHAP. XLIX.] OF DESTROYING OR INJURING BRIDGES, ETC. 579 of any mill-pond ; every such offender sliall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit,) in addition to such imprisonmeut."(i) In tiie case upon the 9 Geo. 1, c. 22, the words of which wore, '' if any person shall unlawfully and maliciously break down the head or mound of any fish-pond, whereby the fish shall be lost or destroyed," the judges thought that the provision applied only to cases of wanton and malicious mischief in cutting the head of a pond, and not to cases where it was used as the means of stealing the fish.(c) ♦CHAPTER THE FORTY-NINTH. *580 OP DESTROYING OR INJURING BRIDGES, TURNPIKE-GATES, ETC. The 7 & 8 Geo. 4, c. 30, s. 13, enacts, " that if any person shall un- 7 & 8 Geo. lawfully, and maliciously («) pull down or in any wise destroy any public ^'°- 'V^'. *\ bridge, or do any injury with intent, and so as thereby to render such to a public bridge or any part thereof dangerous or impassable, every such offender bridge. shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to bo imprisoned for any term not exceeding four years; and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit,) in addi- tion to such imprisonment." (^6) By sec. 14, " if any person shall unlawfully and maliciously(a) throw Sac. 14. down, level, or otherwise destroy, in whole or in part, any turnpike- "'^*^y',7'ijj°^ gate, or any wall, chain, rail, post, bar, or other fence belonging to any gate, toil- turnpike-gate, set up or erected to prevent passengers passing by with- h^use, &c. out paying any toll directed to be paid by any act or acts of parliament relating thereto, or any house, building, or weighing engine erected for the better collection, ascertainment, or security of any such toll, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be punished accordingly." (cc) The malicious destruction or damaging of ^-)i{6/ic bridges is said to be Destruc- without doubt punishable as a misdemeanor at common law, being aV"""*^- . . . . damaging nuisance to all the king's subjects. ((^/) But in a case of slight damage ol" bridges, this might perhaps be questioned. With respect to wilful damage done to bridges, arches, walls, &c., erected by the commissioners of turnpike- {b) As to abettors, see sec. 26, ante, p. 546, and as to hard labour and solitary con- finement see sec. 27, and the 1 Vict. c. 90, s. 5, ante^ p. 547. (c) Re.\ V. Ross, Russ. & Ry. 10. The new statute seems framed expressly so as to meet this case. C. S. G. (a) See sec. 25, ante, p. 544. (66) As to the punishment of principals in the second degree and accessories, see sec. 26, ante, p. 546, and as to hard labour and solitary confinement, see sec. 27, and the 1 Vict. c. 90, s. 5, ante^ p. 547. (re) As to hard labour and solitary confinement, see sec. 27, and the 1 Vict. c. 90, s. 5, ante, p. 547, and as to abettors, see sec. 26, ante, p. 546. {d) 2 East, P. C. c. 22, s. 27, p. 1081. 580 OF DESTROYINa FENCES, WALLS, ETC. [bOOK IV, roads, pecuniary penalties, recoverable by summary conviction, are im- posed by the 3 Geo. 4, c. 12G, s. 121, and 4 Geo. 4, c. 95, s. 72. There arc, however, a great number of bridges within this kingdom *581 which it was made felony to injure or destroy, by the enactments* of particular statutes. In some instances the ofll'ence was made capital, as in the case of Westminster Bridge, by 9 Geo. 2, c. 29, s. 5. But the 1 Geo. 4, c. 116, repeals this provision of the Westminster Bridge act, and with respect to similar provisions in other statutes it enacts, '< that such parts of all former acts relating to bridges as enact that if any person or persons shall wilfully and maliciously blow up, pull down, or destroy any bridge, or any part thereof, or attempt so to do, or unlawfully and without authority remove or take any works thereunto belonging, or in anywise direct or procure the same to be done, such offender or of- fenders, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death as a felon, without the benefit of clergy, shall from and after the passing of this act be and the same are hereby repealed." ^582 ^CHAPTER THE FIFTIETH. OF DESTROYING FENCES, WALLS, STILES, OR GATES. Destroying TiiE 7 & 8 Gco. 4, c. 30, s. 23, enacts, " that if any person shall &c., any unlawfully and maliciously(a) cut, break, throw down, or in anywise stile 'or ' destroy any fence of any description whatsoever, or any wall, stile, or gate, gate, or any part thereof respectively, every such offender, being con- victed before a justice of the peace, shall for the first offence forfeit and pay, over and above the amount of the injury done, such sum of money, not exceeding five pounds, as to the justice shall seem meet: and if any person so convicted shall afterwards be guilty of any of the said offences, and shall be convicted thereof in like manner, every such offender shall be committed to the common gaol or house of correction, there to be kept to hard labour for such term, not exceeding twelve calendar months, as the convicting justice shall think fit; and if such subsequent conviction shall take place before two justices, they may further order the offender, if a male, to be once or twice publicly or privately whipped after the expiration of four days from the time of such conviction." *583 *CHAPTER THE FIFTY-FIRST. OF THE DESTROYING AND DAMAGING MINES AND MINE ENGINES. The offence of setting fire to any coal-mine has been mentioned in a former chapter. (aa) 7 <& 8 Geo. The 7 & 8 Geo. 4, c. 30, s. G, enacts, ''that if any person shall unlaw- 4, c. 30, s. fully and maliciously(Z/) cause any water to be conveyed into any mine, (a) See sec. 25, ante, p. 544. [aa) Ante, p. 553. (6) See sec. 25, ante, p. 544. CHAP. LI.] OF DRSTROYINa AND DAMAGING MINES, ETC. 5S3 or into any subtcrranoous passage connnunicating tlicrewitli, with intent 6. Drown- thereby to destroy or damage such mine, or to hinder or dehiy the work- ,„i,,e or fill- ing tliereof ; or shall, with the like intent, unlawfully and maliciously ing up any pull down, fill up, or obstruct any air-way, water-way, drain, pit, level, ^^j",^'' j'^^^'jjj or shaft, of or belonging to any mine; every such oftender shall be to destroy guilty of felony, and being convicted thereof, shall be liable at the dis- ^^"^ '°'°*'- crction of the court, to be transported beyond the seas fur the terra of seven years, or to be imprisoned for any term not exceeding two years; and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment : pro- vided always, that this provision shall not extend to any damage com- mitted under ground by any owner of any adjoining mine, in working the same, or by any person duly employed in such working. "(r) I3y sec. 7, "if any person shall unlawfully and malieiously(//) pull '"^ec. 7. down or destroy, or damage, with intent to destroy or to render "se-,^jj*'yg'^^^|°^ less, any steam-engine or other engine for sinking, draining, or working erection, any mine, or any staith, building, or erection used in conducting the '^*^-'"^.'^'^'" J ' -' . 1 -f X 1 x> • any mine, busmess of any mine, or any bridge, wagon-way, or trunk tor conveying minerals from any mine, whether such engine, staith, building, erection, bridge, wagon-way, or trunk be completed or in an unfinished state, every such ' offender shall be guilty of felony, and, being convicted thereof, shall be liable to any of the punishments which the court may award, as hereinbefore last mentioned." We have seen that where one of the owners of adjoining mines Claim of asserting that an air-way belongs to hiui, directs his workmen to stop "s'lt- it up, and they acting lo7id fide, and believing that he has a right to give such an order, do so, they are not guilty of felony for stopping up the air-way, even though the master knew that he had no right to it. But if any of the workmen knew that the stopping of the air-way* '"584 was a malicious act of his master, such workman would be guilty of felony. (<^/) If a steam engine be set in motion without any machinery attached Wrongfully to it, with intent to damage it or render it useless, the case is within the s^eam°en- statute. Upon an indictment for maliciously damaging a steam engine gino in mo- with intent, as charged in one count, to destroy, as charged in another, ^t)°"'^^g "'^' to render it useless, it appeared that the steam engine was used to bring damaged, up coals from the shaft of one mine, and water from another, and that it was stopped and locked up in the evening, and that the prisoners in the night got into the engine house and set the engine going, and from its having no machinery attached to it, the engine worked with greater velocity, and the wheels were some of them thrown out of cog, so that the engine was damaged to the amount of 10/., and would have been injured to a much greater extent, if the mischief had not been disco- vered and the engine stopped. Gurney, B., left it to the jury to say whether the intent of the prisoners was to destroy the engine or to render it useless; and held that if the prisoners had cither of those intents the case came within the provisions of the statute. (c) See sec. 26, ante, p. 546, as to principals in the second degree and asccssories, and sec. 27, and the 1 Vict. c. 90, s. 5, ante, p. 547, as to hard labour and solitary confinement. (b) See sec. 25. ante, p. 544. \d) Reg. V. Norris,' 9 C. & P. 241. See Rex n Tacey, vost, p. 586. * Eng. Com. Law Reps, xxxviii. 100. 584 OF DESTROYING, ETC., MACHINERY. [BOOK IV. What is an Damaging a drum moved by a steam engine is not damaging the steam Whatis°not^'^S^'^^> ^^^ damaging a scaffolding placed across the shaft of a mine, in imrtof a ordcr to work a level, is damaging an "erection" <^used in conducting steam en- j^j^^ business of a mine." Upon an indictment founded on the 7 & 8 K'l'ie. , ^ Geo. 4, c. 30, s. 7, containing counts for damaging an engine employed in working a mine with intent to destroy it, and for damaging a certain erection used in the working a mine, with intent to destroy it, it appeared that a coal mine was worked by a steam engine, which caused a cylin- der, called a drum, to revolve and take up the rope as the coal was drawn from the mine. At the other end of the rope was a heavy weight, called a bull, which the prisoners threw into the shaft of the mine, and by the sudden jerk caused the drum to be strained and injured. The bottom of the shaft was filled with water, and the owner of the mine had caused a scaffold to be erected at some distance above the bottom of the mine, for the purpose of working a vein of coal that was on a level with the scaffold, and the prisoners had thrown a sort of wagon, called a corve, down the shaft, whereby the scaffold was much injured. It was objected, first, that as the drum was no part of the steam engine, the counts charging the damaging the steam engine could not be supported; secondly, that the scaffolding was not an "erection" within the meaning of the 7 & 8 Geo. 4, c. 30, s. 7, as the word " erec- tion" being used in conjunction with the words "staith or building" must be taken to mean an erection ejusdem generis; and it was held that the damaging the drum did not support the counts charging the damaging the steam engine, but it was also held that the scaffolding was an erection within the meaning of the statute ; the word " erec- tion" being clearlymeant to denote something different from a build- ing, (r^) *585 *CHAPTER THE FIFTY-SECOND. OF DESTROYING AND DAMAGING ARTICLES IN A COURSE OP MANUFAC- TURE, AND OF DESTROYING, ETC., IMPLEMENTS AND MACHINERY. 7 & 8 Geo. The 7 & 8 Geo. 4, c. 30, s. 3, enacts, "that if any person shall un- 3 D t'-^r lawfully and maliciously(a) cut, break, or destroy, or damage with in- ing silk, tent to destroy or to render useless, any goods or articles of silk, woollen, woollen, linen, or cotton, or of any one or more of those materials mixed with linoQ, or , . cotton each other, or mixed with any other material, or any framework-knitted goods in piece, stockinor, hose, or lace respectively, beino; in the loom or frame, the loom, ^ ' i • • ^i i .. . • ^. &.C. or anv ^^ ou any machme or engme, or on the rack or tenters, or in any stage, machinery process, or progress of manufacture ; or shall unlawfully and maliciously manufo^c- ^^''' break, or destroy, or damage with intent to destroy or render use- tures, &c. less, any warp or shute of silk, woollen, linen, or cotton, or of any one or more of those materials mixed with each other, or mixed with any other material, or any loom, frame, machine, engine, rack, tackle, or implement, whether fixed or moveable, prepared for or employed in card- ing, spinning, throwing, weaving, fulling, shearing, or otherwise manu- (e) Reg. V. Whittingham,* 9 C. & P. 234, Patteson, J. (a) See sec. 25, ante, p. 544. * Eng. Com. Law Reps, xxxviii. 96. CHAP. LII.] OF DESTROYING, ETC., MACHINERY. 585 facturing or preparing any such goods or articles : or shall by force enter into any house, shop, building, or place, with intent to commit any of the oH'cnces aforesaid, every such offender shall he guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any tenu not exceeding four years; and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment. "(/>) Upon an indictment under the 28 Geo. 3, c. 55, s. 4, (now repealed) TaUini? for maliciously damaging a frame used for making stockings, it appeared "("".'•^j.'.'"'^'' that the prisoner unscrewed, unfastened, and carried awliy a pari, called nnd there-' the half-jack, from two frames used for the making of stockings. Thc!*^ ""endcr- half-jack is a piece of iron, which is an essential part of the frame, andicss. when taken out the frame is rendered useless; but it may be taken out and again replaced without injur}' to the frame, and is sometimes so treated when the frame is taken to pieces to be cleaned. Most of the other parts of the frame may in like manner be taken out and replaced. The frames in this case were not otherwise injured than by taking away the half-jacks. It was *objeeted, that this removal of the half-jack was *.586 not a damaging of the frame within the statute, which it was contended, applied only to cases of breaking, bending, or straining some part of the frame, and not to the removal of a part, though that part might be an essential part. But, upon a case reserved, the judges were unanimously of opinion that the taking out and carrying away the half-jack, was a damaging the frame within the meaning of the 28 Geo. 3, as it made the frame imperfect and inoperative. (r) The 22 Geo. 3, c. 40, s. 1, made it a capital felony to break into any Looms, house, &c., with intent to destroy "any serge or other woollen goods in the loom, or any tools employed in the making thereof," and it was held that destroying part of a loom did not come within the meaning of that statute. ((/) The first count charged the prisoners with maliciously damaging 100 Goods pieces of worsted stuff", " in a certain process of manufacture," with ju. '■''"■'^'" '" tent to destroy the same. Other counts stated the goods to be in a jnoccss or "certain stage of manufacture," and others stated them to be "in the P'""''""'' "^ n r ,, mi 1 1-1 nianufac- progress or manufacture. ihe prosecutors were dyers, and received turo though the stuff's from the manufacturer after the texture was complete, but t'"^ texture while they were still in an unmarketable state. The stuff's which werCpiy^y^ if damaged by the prisoners were, at that time, Upon rollers, immersed in they be not liquid, and in the actual process of being dyed ; and the injury was done -J^'^^f^ by throwing deleterious ingredients upon the stuff's themselves, and into condition the liquid in which they were immersed. For the prisoners it was con-^'' ^"'' tended, that as the article damaged was at the time of the damage being done in a complete state, so far as the manufacturing and texture were concerned, and only required dyeing to fit it for the market, the case did not come within the words of the act. For the prosecution it was sub- mitted, that the legislature could not have intended to withdraw the pro- tection of the act, until the manufacture was so complete that the ar- (b) See sec. 27, and the 1 Vict. c. 90, s. 5, ante, p. 547, as to hard labour and solitary confinement ; and sec. 26, ante, p. 546, as to principals in the second degree and accesso- ries. (c) Rex V. Tacey, Russ, & Ry. 452. (rf) Rox V. Hill, Russ. & Ry. 483. The new statute seems framed to meet this case. 586 OF DESTROYING, ETC., MACHINERY. [BOOK IV. tides were fit for immediate sale. Coleridge, J., (after consulting with l*arke, B.) said that they were both of opinion that tl»c true construction of the act was that contended for by the prosecutor; he therefore over- ruled the objection, and he referred to the provision in the same section relating to goods on "rack or tenters," as showing that the act contem- plated injuries to goods subsequent to the completion of the texture.(e) An indict- The indictment stated that the prisoner six warps of linen yarn of the dama^hin- S^^^^^ of ^- ^- unlawfully, maliciously, and feloniously did damage by warps'of throwing the said warps of linen yarn with great force unto and upon linen yarn, ^j^g ground, &c., with intent to render the same useless ; against the need not . . , ^ ^ i allege that form, &c. After conviction a writ of error was brought, and the errors the warps assigned were, that it did not appear by the count that the said warps pared for Were, at the time of the damage, goods in any stage of manufacture, or or employ- that they were prepared for being woven or manufactured into, or were ino- &c. or Goiployed in the weaving or manufacturing any such goods, &c. ; and it otherwise was Contended that the indictment did not state any offence within the Iroods'^&c statute, because the damaging warps was made an offence only where *5S7 s^^^^ warps had been prepared for, *or employed in spinning, &c., or otherwise manufacturing the goods mentioned in the previous part of the section; and that the indictment did not allege that the warps of linen were so prepared or employed. Lord Tenterden, C. J., in deliver- ing the judgment of the court, said, " We are of opinion, on a careful examination of the statute, that it was not necessary to allege specifi- cally in the count that the warps therein mentioned were prepared for or employed in carding, spinning, weaving, &c., or otherwise manufac- turing goods. The third section of 7 & 8 Greo. 4, c. 30, consists of three branches. The first branch enacts, that if any person shall unlawfully and maliciously damage with intent to destroy, any goods therein de- scribed, being in the loom, &c., he shall be guilty of felony. Now in an indictment for an offence against that enactment, it would be undoubt- edly necessary to allege that the goods were at the time of the damage in the loom, &c., because it was not the intention of the legislature to make it an offence to destroy such goods wherever found, but to protect them only while they were in a course of manufacture. The same ob- servation applies to the latter part of the second branch of the section, which makes it an offence to damage or break any loom prepared for or employed in manufacturing, &c. ; it would not be sufficient in an in- dictment, framed upon that provision of the statute, to charge the mere destruction of a loom, without adding that it was one prepared or em- ployed in some of the ways therein described, for the count then would be too general. But as to the damaging of any warp or shute of silk, woollen, or linen, the question may, on the words of the act, admit of some doubt. The whole sentence is, " If any person shall unlawfully and maliciously damage, &c., with intent to destroy, any warp or shute of silk, woollen, linen, &c., or any loom, ft-ame, &c., prepared for or era- ployed in carding, spinning, weaving," &c. ; and the question is, if the words <' prepared for or employed," &c., are to be considered as referring to all the preceding words, or to those only denoting the implements of manufacture. That must be ascertained by looking at the subject-matter of the enactment and the object which the legislature had in view. That object in the first branch of the section was, the protection of goods (e) Rex V. Woodhead, 1 M. & Rob. 549. CHAP. LII.] OF DESTROYING, ETC., MACHINERY. 587 while in the course of manufacture; in the second, the protection of the warp or shute, and of the machinery and implements, when they were j)rcparcd for or employed in the production of goods. Now as to the latter, it is necessary, with a view to the limited purpose which the legislature had in view, that the concluding words should apply to them; but not so as to the warp, because a warp is a denomination of some kind of thread prepared to be woven and used in manufacture j it is in itself something " prepared for manufacturing goods." We were referred in the argument to former acts of parliament in pari inatcrid which had been repealed, and it was said, that under some of those acts, the word warp was so connected with the words importing preparation for manufacture, that a similar connection must be understood here, and consequently it was necessary that they should be so connected in an indictment on the present clause. To the party indicted that must, at all events, be immaterial, because the warp must be something already prepared for manufacture; and therefore the proof would be the same, whether the indictment contained such an allegation or not; but in the statute, 4 Grco. 4, c. 4G, the word warp is used absolutely by itself, with- out 'reference to any word denoting preparation for manufacture, and *588 without any qualification before or after. The words which follow, "or to burn, break, &c. any loom, etc., prepared for or employed in manu- facturing," constitute a distinct branch of the sentence, and after them a new sentence commences. Upon this view of the two acts of parlia- ment, and considering that the word warp is a well known denomina- tion of an article which is in some way or other prepared for or employed in manufacture, we are of opinion that it was not necessary to allege specifically in this case that the warp mentioned in the indictment was so prepared or employed." (<■/) By tlie 7 & 8 Geo. 4, c. 30, s. 4, "if any person shall unlawfully 7 A 8 Geo. and maliciously cut, break, or destroy, or damage with intent to destroy^' '''j?*^' *• iir to render useless any threshing machine, or any machine or engine, stroying whether fixed or movable, prepared for or employed in any manufac-""'^-^'.""S fure whatsoever (except the manufacture of silk, woollen, linen, or cot- or mnchi-' ton goods, or goods of any one or more of these materials mixed with "ery in t'ach other, or mixed with any other material, or any framework-knitted )„:;„„f.io- piece, stocking, hose or lace) every such offender shall be guilty of turo than felony, and being convicted thereof, shall be liable, at the discretion of go'in^'^"' the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years, and, if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit,) in addition to such imprisonment. "(e) Upon an indictment for destroying a threshing machine it appeared Destroy- that the prosecutor, in expectation of a mob coming to destroy his Ihfeshing threshing machine, had himself taken it to pieces, and that the prisoners maehino, only broke the detached parts of it; but it was held that the offt;nce ^^^^3 ,j, oxpi.'etii- hid been taken to pieces, and was in different places, only requiring the *^'"" taken to pieces ii was made out, although at the time when the machine was broken, itoxpoeta ion I ..lub. carpenter to put the pieces together again. (/) So where the prisoner {d) Rex V. Ashton,* 2 B. & Ad. T50. (c) See sec. 2G, ante, p. 546, as to principals in the second degree and accessories, and sec. 27, and tlie 1 Vict. c. 90, s. 5, ante, p. 547, as to hard labour and solitary confine- ment. (/) Rex V. Mackerel,'' 4 C. & P. 448, Park, J. A. J., Bolland, H., and Patteson, J. » Eng. Com. Law Reps. xxii. 176. ^ lb. xix. 467. .ISS OF DESTROYING, ETC., MACHINERY. [book IV. »=o89 Destroying the water- wheel of a threshing machine. was indicted for destroying a threshing machine, and it appeared that it had been previously taken to pieces by the owner, by separating the arras and other parts of it, for the purpose of placing it in safety, but with a view to put it together again ; and it was destroyed, whilst in this disjointed state; it was decided that the offence was within the statute of the 7 & 8 Geo. 4, c. 30, s. 3.(y) So where certain side-boards were wanting to the machine at the time it was destroyed, but which did not render it so defective as to prevent it altogether from working, though it would not work so effectually as if those boards had been made good ; it was held, that it was still a threshing machine within the meaning of the statute. (A) So also where the owner had removed a wooden stage belonging to the machine, on which the man who fed the machine was accustomed to stand, and had also taken away the legs ; and it appeared in evidence, that though the machine could not be con- veniently worked without some stage for the man to stand on, yet that a chair, or *table, or a number of sheaves of corn, would do nearly a? well, and that it could also be worked without the legs ; it was held, that the machine was an entire one, within the act, notwithstanding the stage and legs were wanting. (Q So where on an indictment for destroying a threshing machine, it appeared that the machine was worked by water, and that the prosecu- tor, expecting a mob would come and break it, had had it taken to pieces, and had removed the pieces to a barn at the distance of a quar- ter of a mile, leaving no part of it standing but the water-wheel and it? axis and a brass joint, which was joined to the axis of the water-wheel, and that this water-wheel was broken by the prisoners. The water- wheel had been put up for the sole purpose of working the threshing machine, and had never been used for anything else, except sometimes to work a chaff-cutter, which was appended to the threshing machine ; it was held that the wheel was part of the threshing machine, and that the damaging it was damaging a threshing machine within the mean- ing of the statute, and that it made no difference that the threshing machine was sometimes worked by horses when there was a scarcity of water, (y ) But where the prosecutor had not only taken the machine to pieces, but had broken the wheel before the mob came to destroy it, for fear of having it set on fire and endangering his premises ; and it wa-- proved, that, without the wheel, the engine could not be worked ; in this case it was held, that the remaining parts of the machine, whicli were destroyed by the mob, did not constitute a threshing machine within the meaning of the statute. (A:) Where, on an indictment for destroying a threshing machine, it ap- peared that the machine was broken by a mob, Patteson, J., allowed the witnesses to be asked whether many persons had not been compelled to join the mob against their will, and whether the mob did not compel each person to give one blow to each threshing machine they broke ; Persons compelled to destroy machines by a mob. (g) Rex V. Hutchins, 2 Deac. Cr. Dig. 1517, Read. Sp. Com. Park, J. A. J., Bolland B., and Patteson, Js. {h) Rex V. Bartlett, 2 Deac. Cr. Dig. 1517, Salisb. Sp. Com., Yaughan, B., Parke, and Al- derson, Js. (?) Rex V. Chubb, 2 Deac. Cr. Dig. 1518, Salisb. Sp. Com. Vaughan, B., and Parke, J. (/) Rex V. Fidler,* 4 C. & P. 449. Park, J. A. J., Bolland, B., and Patteson, J. {k) Rex V. West, 2 Deac. Cr. Dig. 1518, Salisb. Sp. Com. Alderson, J. * Eng. Com. La^ Reps. xix. 467. CHAP. LII.] OF DESTROYING, ETC., MACHINERY. 589 and also whether, at the time when the prisoner, aiul a witness called fVir the prisoner, joined the mob they did not agree together to run away from the raob the first opportunity. (^) The 7 & 8 Geo. 4, c. 30, s. 8, enacts, ''that if any persons, riotously 7 Jk 8 Geo. and tumultuou.sly assembled together to the disturbance of the P^i^'li^' {^-'utyrs^de' peace, shall unlawfully and with force demolisli, pull down, or destroy, nxilL-hing, or begin to demolish, pull down, or destroy, any church or chapel, or **^-' * any chapel for the religious worship of persons dissenting from the pel, house, united Church of pjngland and Ireland, duly registered or recorded, or '^'■.'''^'';^'''° any house, stable, coach-house, out-house, warehouse, ofiice, shop, mill, or'a„y^ma- malt-house, hop-oast, barn or granary, or any building or erection used cliiii(.'iy in in carrying on any trade or manufacture, or any branch thereof, or any 'l^^. "'"""" machiner}', whether fixed or moveable, prepared for or employed in any mine, manufacture, or in any branch thereof, or any steam engine or other engine for sinking, draining, or working any mine, or any staith, build- ing, or erection used in conducting the business of any mine, or any bridge, wagon-way, or trunk for conveying minerals from any mine, every such ^offender shall be guilty of felony, and being convicted *590 thereof, shall suffer death as a felon." (Z^) The 4 «& 5 Vict. c. 56, s. 2, recites this section, and so much of the 4 & 5 Vict, act as " relates to the principals in the second degree and accessories "^^ ^^< •''• 2* before the fact," 'and enacts, '< that from and after the commencement pm,'i.«h. of this act (1st October, 1841) if any person shall be convicted of any muut. of the said offences hereinbefore last specified, whether as principal, or as principal in the second degree, or as accessory before the fact, such person shall not be subject to any sentence, judgment, or punishment of death, but shall, instead of the sentence or judgment in and by the said act hereinbefore recited ordered to be given or awarded against per- sons convicted of the said last mentioned offences, or any of them res- pectively, be liable, at the discretion of the court, to be transported be- yond the seas for any term not less than seven years, or to be impri- soned for any time not exceeding three years." 15y sec. 4, <'in awarding the punishment of imprisonment for any Soc. 4. offence punishable under this act, it shall be lawful fur the court to J'-'^''* 'j^' i' • 1 1 • I • 1 i 1 1 1 1 • > bour. &o. direct such punishment to be with or without hard labour in the com- mon gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for any portion or portions of such imprisonment, whether tho same be with or without hard labour, not exceeding one month at any one time, and not exceeding three months iu any one year, as to the court in its discretion shall seem meet."(m) Where an indictment contained counts founded on th.; 8th section Joiivlor of for riotously demolishing certain machinery, and also counts founded on *-'"""'*• the third section for destroying certain looms, and it was objected that the two sets of counts were improperly joined, as the same judgment (l) Rex V. Crutchley,* 5 C. & P. 133. [H) Sec vol. 1, p. 270, for the cases decided upon this section. (w) The 4 & 5 Vict. c. 56, contains no provision for the punishment of accessories after the fact, and as the offences mentioned in tlic 7 & 8 («eo. 4, c. 30, s. 8, are no longer punish- able under that statute, it may he doubted whether accessories after the fact are now pun- ishable under sec. 2G, antr, p. 546. If they are not, then there i.s no express punisiimcnt provided for such accessories, and they are piuiishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 5,) in the manner sta.ed in note (m), ante, p. 448. C. S. G. » Eng. Com. Law Reps. xxiv. 244. Vol. II.— 38 590 OF DESTROYING AND DAMAGING SHIPS, ETC. [BOOK IV. could not be passed on both ; Baylcy, J., said, " I see no difl&culty. I do not see that the prisoners will be under any disadvantage ; but I will speak to the judges on the subject."(vi) *591 *CHAPTER THE FIFTY-THIRD. OF DESTROYING AND DAMAGING (sniPS AND OTHER VESSELS, AND ARTI- CLES THEREUNTO BELONGING. The oflFence of unlawfully and maliciously setting fire to ships and other vessels has been mentioned in a preceding chapter. (a) The en- actment there mentioned extends to other modes of destruction : the former statute on this subject, namely, the 7 & 8 Geo. 4, c. 30, con- tained several general provisions against the offences of maliciously damaging ships and other vessels, and doing certain acts tending to their immediate loss or destruction, most of which are repealed by the 1 Vict. c. 89.(i) 7 & 8 Geo. The 7 & 8 Geo. 4, c. 30, s. 10, enacts, '^ that if any person shall unlaw- 4, c. 30, s. fully and maliciously (c) damage, otherwise than by fire, any ship or ves- agino- a ' sel, whether complete or in an unfinished state, with intent to destroy the ship other- same, or to render the same useless, every such offender shall be guilty of bv^fire '^'^ felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years ; and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit), in addition to such imprisonment. "(cA 1 Vict. c. The 1 Vic. c. 89, s. 4, enacts that '< whosoever shall unlawfully and R^ n^' t fi maliciously set fire to, cast away or in anywise destroy any ship or to shipl, vessel, either with intent to murder any person, or whereby the life of &c., with rjuy person shall be endangered, shall be guilty of felony, and being commit convicted thereof shall suflfer death. "(e) murder. By gee. 5, " whosoever shall unlawfully exhibit any false light or Hanging signal, with intent to bring any ship or vessel into danger, or shall un- light's to lawfully and maliciously do any thing tending to the immediate loss or cause ship- destruction of any ship or vessel in distress, shall be guilty of felony, ^""^ and being convicted thereof, shall suffer death." (/) *592 By sec. 6, "■ whosoever shall unlawfully and maliciously set fire to or Setting fire jj^ anywise destroy any ship or vessel, whether the same be complete or vesselswithin an unfinished state, or shall unlawfully or maliciously *sct fire to, intent to g^st away, or in anywise destroy any ship or vessel, with intent thereby same. to prejudice any owner or part owner of such ship or vessel, or of any (n) Kershaw's case, I Lew. 218. It is not stated in the report bow this case terminated. (a) Ante, Chap. On Arson, ^c, p. 553. (b) The 1 Vict. c. 89, repeals the 9th and 11th sections of the 7 & 8 Geo. 4, c. 30, and so much of the same act as relates to the punishment of principals in the second degree and accessories to the offences contained in those sections. (c) See sec. 25, ante, p. 544. {d) See sec. 26, ante, p. 546, as to principals in the second degree and accessories, and see sec. 27, and the 1 Vict. c. 90, s. 5, as to hard labour and solitary confinement, ante, p. 547. (e) This section is new. (/) This section is the same as the beginning of the 7 & 8 Geo. 4, c. 30, s. 11, except that the word "unlawfully" is introduced before the word " exhibit." CHAP. LIII.] OF DESTROYING AND DAMAGING SHIPS, ETC. 592 goods on board the same, or any person that hath underwritten or shall underwrite any policy of insurance upon such ship or vessel, or on the freight thereof or upon any goods on board the same, shall be guilty of felony, and being convicted thereof, shall be liable at the discretion of the court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not loss than fifteen years, or to be imprisoned for any term not exceeding three years. "(y) By sec. 7, " whosoever shall by force prevent or impede any person Tmpoding endeavouring to save his life from any ship or vessel which sliall be in endeavour- distress, or wrecked, stranded, or cast on shore, (whether he shall be on ing to save board or shall have quitted tlie same), shall be guilty of felony, and j-il^^^'j^j^ being convicted thereof, shall be liable, at the discretion of the court, sliipwrock- to be transported beyond the seas for the term of the natural life of such *"^' '''°- offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years. "(/;) By sec. 8, "whosoever shall unlawfully and maliciously destroy any Destroyini; part of an}^ ship or vessel which shall be in distress, or wrecked, stranded, ^ny'anicl-s or cast on shore, or any goods, merchandise, or articles of any kind be- belonging longing to such ship or vessel, shall be guilty of felony, and being con-^^'''"^°- victed thereof, shall be liable, at the discretion of the coxirt, to be trans- ported beyond the seas for any term not exceeding fifteen years nor less than ten years, or to be imprisoned for any term not exceeding three years." (/) A person may be convicted under tlie 1 Vic. c. 89, ss. 6 and 11, as an accessory before the fact to the offence of casting away and destroying a vessel of which he was at the time part owncr.(i7) Where it ap- peared that certain goods which were on board a vessel which was feloniously cast away, were insured, and one count alleged an intent to prejudice the person who had underwritten the policy which insured them, and there were also three other policies, effected on certain goods specified in such policies, but no part of these goods were put on board the vessel, it was held that evidence was receivable with respect to such three policies, notwithstanding the 1 Vic. c. 89, s. 6, describes one felonious intent to be to prejudice the persons who shall underwrite any policy of insurance upon any goods on board the vessel. (_;}') The 12 Geo. 3, c. 24, relates to the king's ships of war, arsenals, &c. 12 Goo. 3, and enacts, " that if any person or persons shall, either within this pjj.j;jjnj realm, or in any of the islands, countries, forts, or places thereunto be- wilfully longinir, wilfully and maliciously set on fire, or burn, or otherwise de- '^.'T'''"-^""- ° -' •' n 1 1-1 T -1 s^T^ of war. stroy, or cause to be set on fare, or burnt, or otherwise destroyed, or aid, arsenals, procure, abet, or assist in the setting on fire, or burning or otherwise dock-yards, destroying any of his majesty's ships or vessels of war, whether the tit)il,^.r^,tc.. said ships or vessels of war be on float or building, or begun to be built, or stores. in any of his majesty's dock-yards, or building or repairing by contract in any private yards, for the use of his majesty, or any of his majesty's iff) This section is the same as the 7 &8 Geo. 4, c. 30, s. 9. h) This section is the same as the last part of the T & 8 Geo. 4, c. 30, s. 11. i) This section is the same as the middle part of the 7 & 8 Geo. 4, c. 30, s. 11. As to the punishment of principals in the second degree and accessories, see sec. 11, ante, p. 553; and as to hard labour and solitary confinement, sec sec. 12, ante, p. 554, and as to the question of malice against the owner in oftences against this statute, see note (n). ante, p. 572. (ii) Reg. V. Wallace,* 1 C. & Mars. 200. All the judges on a case reserved. IjJ) Reg. V. Wallace, supra. » Eng. Com. Law Reps. xli. 113. 592 OF DESTROYING AND DAMAGING SHIPS, ETC. [BOOK IV. arsenals, magazines, dock-yards, rope-yards, victualling oflBces, or any of the buildings erected therein, or belonging thereto ; or any tim- ber or materials there placed for building, repairing, or fitting out of ships or vessels; or any of his majesty's military, naval or victualling stores, or other ammunition of war, or 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;" the person or persons guilty of any such oifencc shall be adjudged guilty of felony, and suffer, death without benefit of clergy. f/) ]iy the second section, persons com- mitting these offences out of the realm, may be indicted and tried for the same either in any county within the realm, or in the place where *593 the offence shall *have been actually committed, as his majesty may deem most expedient for bringing such offender to justice. (yt) 1 A 2 Geo. The 1 & 2 Greo. 4, c. 75, s. 11, enacts, "that if any person or persons ^'"•'^'.^■^^ shall wilfully cut away, east adrift, remove, alter, deface, sink, or de- away do- " stroy, or shall do or commit any act with intent and design to cut away, fncing, &(i., pj^gj; atli-ift^ remove, alter, deface, sink, or destroy, or in any other way btioy-roncs, injure or conceal any buoy, buoy -rope, or mark, belonging to any ship Ac, tviony, or vessel, or which may be attached to any anchor or cable belonging by"tr:in8-" to any ship or vessel whatever, whether in distress or otherwise, such port.uiuti, person or persons so offending shall, on being convicted of such offence, *■ be deemed and adjudged to be guilty of felony, and shall be liable to be transported for any term not exceeding seven years, or in mitigation of such punishment, to be imprisoned for any number of years at the discretion of the court in which the conviction shall be ma,de."(l) Statutes of Besides the statutes which have been thus cited, there are some others and local ^^ * more limited and local operation, which may be briefly noticed, operation, The 2 Grco. 3, c. 28, which made provisions against damaging the cord- c VTIt ^S® °^ vessels on the Thames, was repealed by the 2 & 3 Vict. c. 47, entitled "An act for further improving the police in and near the metro- polis;" but sec. 27 of that act enacts, that "every person who shall unlawfully cut, damage, or destroy any of the ropes, cables, cordage, tackle, headfasts, or other the furniture of or belonging to any ship, boat, or vessel lying in the river Thames, or in any of the docks or creeks adjacent thereto, with intent to steal or otherwise unlawfully ob- tain the same or any part thereof, shall be deemed guilty of a misde- meanor." The 39 Geo. 3, c. 69, (a local act for improving the port of 39 Goo. 3, ],ondon,) s. 4, after providing as to the burning, &c., of ships therein mentioned, enacts, " that if any person or persons shall knowingly, wil- fully, or maliciously demolish, break down, cut, or destroy any of the works to be made by virtue of this act, or any ship or vessel lying in the said canal, or in any of the said docks, basins, cuts, or other works ; (j) See ante, p. 554, note (m). (fc) Some offences of a similar nature may be inquired of and tried by courts martial by the naval articles of war, sees. 24 and 25, as given in 22 Geo. 2, c. 33. And by the 26th article, "care shall be taken in the conducting and steering of any of his majesty's ships, that through wilfulness, negligence, or other defaults, no ship be stranded or run upon any rocks or sands, or split or hazarded, upon pain that such as shall be found guilty therein be punished by death, or such other punishment as the offence, by a court-martial, shall be judged to deserve." (l.) See various provisions of this act as to unlawfully receiving anchors, cables, &c., or goods o))tained from ships, ante,^ p. 270. By sec. 36, the act is not to extend to Scotland or Ireland; nor (by sec. 23,) to affect the Cimjue Port act, 48 Geo. 3, c. 130, or the Pilot act, 48 Geo. 3, c. 104. This statute contains no express provision for the punishment of princi- p.T,l3 in the second degree and accessories, they are therefore punishable in the manner stat- ed in note (m), ante, p. 448. CHAP. LIII.] OF DESTROYING AND DAMAGING SHIPS, ETC. 59^ then every such offcii'ler, being convicted thereof, shall sufl'cr punish- ment by fine, imprisoument, or tninspcn-tation, at the discretion of the judge, &c., before whom such offender shall bo tried and convicted." And by sec. 105, persons wilfully or maliciously cutting, &c., or in any manner destroying any rope, &c., by which any ship or vessel lying in the said canal, docks, kc, or in any place or places in the river Thames, hctuecn London Br'nhjc ond tJ(c imntlli. of tlie river L( a, are moored or fastened, shall forfei tnot exceeding 10^. The 47 Geo. 3, sess. 2, c. 2, 47 Ceo. ;;, s. 57 (local act), relates to the damaging, &c., of shipping, or *goods, *''■,,: "'^'^ &c., in Folkstono Harbour. The 1 & 2 Geo. 4, c. 76, relates to the '504 jurisdiction of the Cinque Ports, and the sixth section contains an en- i k 2 Geo. actnicnt making the cutting away, defacing, A:c., buoys, kc, a felony'*' '^^ ''^■ punishable by transpurtatiou in words similar to the 1 & 2 Geo. 4, c. 75, s. 11. (m) Upon the words " cast away or destroy" it may be mentioned that '\^'<"'is upon the construction of those words in the two statutes, 4 Geo. 1, c. o/jesirov '' 12, and 11 Geo. 1, c. 29, (now repealed) it appears to have been ruled that if a ship were only run aground or standed upon a rock, and were afterwards got off in a condition capable of being easily rehtted, she could not be said to be cast away or destroijed, and that the case was not therefore within either of those statutes. (//) A question has twice arisen, but has not been expressly decided, as As to the to what vessels arc included within the word '< vessel" in the 7 & 8 Geo. 1"^""'"" "'" tne woru 4, c. 30. In the first case the prisoner was indicted for setting fire to a" vessel." barge, and Alderson, B., would have reserved the question, if the pri- soner had been convicted, whether a barge was a vessel within the mean- ing of this statute. (o) In the second case the prisoner was iudicted for damaging a certain vessel by beating a hole in the bottom of it. The vessel in question was a small pleasure boat, about eighteen feet long, and two men could have carried it, and it was objected that the legisla- ture meant to apply the terms " ship or vessel" only to sueh vessels as were likely to be underwritten, and not to small boats; and that in the 7 & 8 G-eo. 4, c. 29, s. 17, where it was meant to include boats, the words were "vessel, barge, or boat," clearly making a distinction be- tween a vessel and a boat. Patteson, J., <' That the term vessel would in common parlance include this boat is clear, but whether in this act of parliament it was meant to include such boats is the cjucstion." " I incline to think that this boat is within the clause in the act of parlia- ment; but as the word vessel must have the same construction in all other acts of parliament, it might lead to inconvenience, and therefore if necessary I will take the opinion of the judges upon it."(7>) In the same case it was objected that the indictment was bad, because TndicU it did not allege that the damage was done "otherwise than by fire;" '"*^°'^' but it was held to be sufficient, as it was alleged to be done by beating a hole in the bottom of the boat.((/) {m) Ante, p. 593, and sec tlie 1 & 2 Geo. 4. c. 7G, as to other ofTenccs committed wilhin this jurisdiction. (n) De Londo's case, lYGS. 2 East, P. C. c. 22, s. 42, p. 1098. fo) Rc.K V. Smith,* 4 C. & P. 5G9. See this Ciisc, ante, p. 566. {p) Rex !'. Bowyer,!" 4 C. & P. 559. Verdict, not guilty. Could a corriclc be considered a vessel within this statute? (gr) Rex V. Bowycr, supra. » Eng. Com. Law Reps. xix. 246. *■ lb. xix. 527. *595 OF WILFUL OR MALICIOUS DAMAGE, ETC. [eOOK IV. ^CHAPTER THE FIFTY-FOURTH. OF WILFUL OR MALICIOUS DAMAGE TO REAL OR PERSONAL PROPERTY NOT OTHERWISE PROVIDED FOR. Persons The 7 & 8 Geo. 4, c. 30, s. 24, enacts, " that if any person shall aMma"o 'to° ^ilf"lly o'' maliciously(a) commit any damage, injury, or spoil to or any proper- upon any real or personal property whatsoever, either of a public or ^J'/" ^"y private nature, for which no remedy or punishment is hereinbefore pro- proviously vided, every such person being convicted thereof before a justice of the provided peace, shall forfeit and pay such sum of money as shall appear to the formavbey ,. ' i i, "^ .• p ^i, j • • M ic-mpeiled justice to be a reasonable compensation tor the damage, injury, or spoil by a justice so committed, not exceeding the sum of five pounds; which sum of pensffti^oiT" i^o^ey shall, in the case of private property, be paid to the party ag- not exceed- grieved, except where such party shall have been examined in proof m^' five q£ ^j^g offence; and in such case, or in the case of property of a pub- Application li" nature, or wherein any public right is concerned, the money shall otthe be applied in such manner as every penalty imposed by a justice of the ™™^d d peace under this act is hereinafter directed to be applied ; and if such sum of money, together with costs (if ordered) shall not be paid imme- diately after the conviction, or within such period as the justice shall at the time of the conviction appoint, the justice may commit the oifender to the common gaol or house of correction, there to be imprisoned only, or to be imprisoned and kept to hard labour as the justice shall think fit, for any term not exceeding two calendar months, unless such sum Proviso. and costs be sooner paid ; provided always, that nothing herein con- tained shall extend to any case where the party trespassing acted under a fair and reasonable supposition that he had a right to do the act com- plained of,(6) nor to any tresspass not being wilful and malicious, com- mitted in hunting, fishing, or in the pursuit of game, but that every such trespass shall be punishable in the same manner as before the passing of this act." (a) See sec. 25, ante^ p. 544. {h) It is a question for the magistrates, under all the circurastances, whether the party acted under such fair and reasonable supposition that he had a right to do the act. Reg. V. Dodsonj^" 9 Ad. k Ell. 704. » Eng. Com. Law Reps, xxxvi. 248. CHAP. I.] OF PERJURY AND SUBORNATION OF PERJURY. *596 BOOK THE FIFTH. OF OFFENCES WHICH MAY AFFECT THE PERSONS OF INDIVIDUALS OR PROPERTY. CHAPTER THE FIRST. OF PERJURY AND SUBORNATION OF PERJURY, Perjury, by the common law, appears to be a wilful false oath by Perjury by one who, being lawfully required to depose the truth in any pro- ^'^^ '^'^•"- cecding in a court of justice, swears absolutely in a matter of some consequence to the point in question, whether he be believed or not.(o)[A] (a) 1 Hawk. P. C. c. 69, s. 2. 3 Inst. 1G4. Com. Dig. tit. Justice of Peace, (B). 102. Bac. Ab. tit. Perjury. [A] This is an incorrect definition of perjury at common law. The definition in Hawkins, is " a wilful false oath, &c., in any procedure in a course of justice," not in a court of justice. Many perjuries may be committed out of court ; as in all cases where depositions, afiidavits, &c., are taken out of court, and before magistrates. In such cases the perjuries may be pro- perly said to be committed in a course of justice, though not in a court of justice. Massachusetts. — The {court " inclined to the opinion" that the} remedy provided by the ninth section of the statute of 1794, c. G5, for the party injured, by an action of the case, against persons summoned as trustees who shall, upon their examinations, knowingly and wilfully swear falsely, does not depend upon a previous conviction of the other party for per- jury ; but the two remedies are concurrent and distinct, and one may be pursued independ- ently of the other. 10 Mass. Rep. 223, Forseth v. Shaw. In the case of the Commonwealth i'. Knight, 12 Mass. Rep. 274, the following points were decided : 1. That in an indictment for perjury, it is not necessary to allege that the witness was summoned to appear at the court, or that the false affirmation was in answer to a spe- cific question. For every person who appears as a witness, and is duly sworn before a com- petent court, on the trial of an isBue there depending, is "lawfully required to depose the truth." (These words are made use of in the statute.) 2. It is sufficient to allege in such indictment, that the perjury was committed in the trial of an issue duly joined, without any express allegation that the cause of action was within the jurisdiction of the court. 3. It is necessary that it should be alleged, or at least that it should appear in the indict- ment, that the facts, respecting which the testimony was given, were material to the issue on trial. If it is not averred in the indictment that the facts concerning which the defendant testified, were material on the trial, the court cannot consider them so, unless they clearly appear to be material from the other facts set forth in the indictment. 12 Mass. Rep. 274. A case of perjury was tried at nisi 2}rius in the county of Hampshire, before Parsons, C. J., in which the perjury alleged to have been committed, was in swearing falsely to the affida- vit before a magistrate, intended to be used before a committee of the House of Representa- tives. _ There was no order of the house to take the affidavit; but it was obtained by the party interested in the subject to be inquired into, of his own accord ; and the affidavit was voluntarily given and taken before the magistrate. Upon these facts the Chief Justice ruled that there could be no legal or technical injury in such a case ; and the defendant was there- upon acquitted. {In Commonwealth v. Alden, 14 Mass. R. 388, it was held that an indictment for perjury in taking the poor debtor's oath need not aver that the oath was adminiscred to the defend- ant in the prison, or within the prison yard — as the magistrates have a discretionary power to appoint a suitable place for the administration of the oath, and are not obliged to admin- 596 OF PERJURY AND SUBORNATION OP PERJURY. [BOOK V. SuLorna- Subornation of perjury by the common law is an offence in procuring jury bvTLo '''■ '"'^" ^'-* *'*^^*^ ^ ^^^'^'^ ^'"^^^ amounting t) perjury, who actually takes comim'm sucli oath. But it seems clear that if the person incited to take such '"■"'• an oath, do not actually take it, the person by whom he was so incited ister it -within the limits of the prison — and a prisoner commits no escape in rendering him- self at the place so appointed.} Connecticut. — In the case of Chapman v. Gillett, 2 Connecticut Rep. 40, which was an action of slander, it was decided that ''the taking of a false oath, wilfully and corruptlj-, in any case where the administration of an oath is lawful, is perjury at common law." This was a very interesting case, reserved upon a motion for anew trial for the consideration and advice of the nine judges in the supreme court of errors, — where it was also decided that " words charging a person with having given false evidence under an oath administered l)y a Justice of the peace before a church convened for the purpose of administering discipline among its members are actionable without an averment and proof of special damage." Six of the judges were in favour of the plaintifl', and of the positions above stated ; three of the judges were of a contrary opinion. Six of the nine judges gave the reasons of their opin- ions, at large. Much ingenuity and learning arc displayed upon both sides of the question ; and as the case is of great importance and some novelty, the perusal of it is recommended to the profession, more particularly in New England, where it has a particular application to the ecclesiastical usages and proceedings in that part of the United States. The argu- ments of the judges are too long to be inserted at large in a note, but the following is an outline of the case, made with a particular view to the nature of perjury in general, as stated, explained and applied in the case cited. At the trial below, a verdict was recovered by the plaintiff. The only words proved to have been spoken by the defendant, were words charging the plaintiff' with having taken a false oath before a meeting of the members of the church in an ecclesiastical society, acting according to the usages of this state, as an ecclesiastical tribunal for the administration of church discipline. The defendant moved the court to instruct the jury, that the words proved were not in themselves actionable : but the court instructed the jury that they were action- able per sfi ; and for this misdirection the defendant moved for a new trial. In support of the motion, the defendant's counsel stated the question to be, whether a per- son who testifies falsely before an ecclesiastical tribunal, is indictable for perjury; and they contended, that in order to make a false oath the subject of an indictment for perjury, it must be taken before a tribunal having civil power, and must go to affect the civil rights of the party. 1 Hawk. c. 69, s. 3. They farther argued, that a church in this state has no civil power ; that it is merely a voluntary association of individuals, and that a false oath before a meeting of its members, for discipline, can affect the civil rights of no one. It was admitted by the counsel for the plaintiff, that if the taking a false oath before a church meeting cannot be perjury, the words in question were not of themselves actionable ; but they contended that in all cases, in which the law recognizes the administration of an oath, it will make that oath efficacious ; and the taking of a false oath is perjury. That the law recognizes the administration of an oath before an ecclesiastical tribunal is CA'identfrom these considerations: — First, it has been the immemorial usage before these respectable tri- bunals, to receive the testimony of witness under oath : — Secondly, an oath, in the case under consideratiou, is necessary to the investigation of truth, the attainment of justice, and the advancement of the best interests of religion. A church is a body, whose existence and powers, as such, are recognized by the laws of the state, and the being "in full communion with the church," is a qualification for voting in a society meeting, equal to real or personal estate to a certain amount. It was also stated, that it had been decided by the superior court and the supreme court of errors in this state, in the case of Lyman v. Wetmore, Supreme Court of Errors, June term, 1795, that the taking of a false oath before an arbitration is perjury. In the principal case, the late learned and lamented Chief Justice Swift, delivered his opinion against granting a new trial as follows : — " Christianity is a part of the law of the land. We have no establishment of any denomination of Christians ; but all have, by law, the power of supporting and conducting public worship, in a manner conformable to their own sentiments. From time immemorial it has been the usage of churches of every denomi- nation, to have ecclesiastical tribunals, who are invested with certain powers for their gov- ernment and the administration of discipline among their members. These are necessary, not only for the promotion of religion, but for the peace and well-being of civil society. In the exercise of their powers, these tribunals, by their sentences, can directly affect the spiritual rights of their members, and indirectly their civil rights. They may be said to be courts where justice is judiciously administered. In the discharge of their duties, it is ne- cessary that they should investigate the truth of facts by the testimony of witnesses. To enable them to do this, it is essential that they should have the power to examine witnesses, upon oath ; and it is understood to be the general practice for magistrates to administer oaths in such cases. CHAP. I.] OF PERJURY AND SUBORNATION OF PERJURY. 596 is not guilty of subornation of perjury, yet it is certain that be is liable to be punished, not only by fine, but also by infamous corporal punish- ment. (/>) (b) 1 Hawk. P. C. c. 69, s. 10. Bac. Ab. tit. Perjury, and the authorities there cited. "Here, then, arc well-known tribunals of ecclesiastical jurisdiction, who possojss certain powers by common consent and immemorial usage, sanctioned by law, in the exercise of which it is necessary and proper for them to inquire into the truth of facts l)y testimony, and before whom it is necessary and proper for the civil magistrate to administer oaths. It is a sound jirinciple, that where an oath can lawfully be administed, there false swearing shall be deemed perjury. There can be no reason to conline it to those tril)unals only, wlmse de- cisions can affect civil rights; other rights may be enually imi)or(ant and equally de.-(rving of protection. None will say that it is unlawful or improjior to administer an oath licfore an ecclesiastical tribunal ; for otherwise witnesses will not be under the obligations of an oath to speak the truth, at a time when their testimony may deeply aflect the rights and the characters of individuals. It apjiears to me, that justice and policy require, that these tri- bunals, acting witliin their proper jurisdiction, should have the same power as civil courts to investigate the truth; that the parties who may be subjected to their discipline, should be protected against false accusations by the punishment of witnesses who swear falsely ; and that witnesses who are falsely charged with j)erjury in such cases, should have the means of defending their character by an action against the slanderer. To deny this, would be to encourage perjury and slander. No man could consider his character safe, as a i)arly or witness before such tribunals; and it would tend greatly to lessen their respectability and usefulness to have it publisiiedto the world, that they are viewed in so unimportant a light by courts of law that perjury might be committed before them with imi)unity and their witnesses slandered without redress. " But it is said, that we are encroaching on the province of the legislature ; that we are making, not expounding the law ; and are adding a new offence to the criminal cede ; and a new head in the chapter of actionable words. But this is no innovation: it is only ex- tending and applying principles already known, to new and analogous cases ; a power Avhich has ever been exercised by judicial tribunals; and which has i)r()duced the greatest ini]>rove- ments in jurisprudence. What would have been our condition, if judges at the outset, liad been checked and restrained, by this timid doctrine, from the exercise of such an inipoitiint power! We should yet have been in the infancy of black letter learning, and causes might have been decided by the ordeal, or wager of battle. " It is a first principle, founded in the nature and fitness of things, that swearing fai.-ely, when under an oath, lawfully administered, is a crime. At first, perjury was confined to false swearing in a court of record ; it was then extended to courts not of record. It has been decided in this court, that to charge a man with perjury before arbitrators, is actionable slander ; and now by analogy, we extend the same iirinci])le to ecclesiastical tribuuids. Here no new principle is introduced. We only ajiply a well known principle to similar cases. The same objection might have been made to extending it to arlntrators; but no one will now question the propriety and correctness of tliat decision ; and I have no doubt that the doctrine now promulgated, will meet with the same ajiprobation. " I would not advise a new trial." The two judges, Edmond and Goddard, Avho dissented from the majority, and were in favour of a new trial, gave their reasons at large, which were in substance as follows: "If to take a false oath before a church meeting is an indictable ofi'ence, it must be on the ground that it is perjury at common law, or perjury by the state of Connecticut." 1 Stat. Conn. tit. 127. "That it cannot be perjury within the statute must be admitted, unless it can be shown, that a church meeting is, in legal contemplation, not only a court with judicial powers, but a court of record. The statute extends to no other perjury than that which may be com- mitted by a witness in giving ' his deposition in any court of record or upon examination,' witliout the unlawfid procurement of others ; or who, bj' the unlawful and corrupt procure- ment of others, shall 'commit wilful and corrupt perjury in any matter or cause whatever, depending, or that shall be dcfiending in suit and variance by any writ, action, bill com- plaint or information in any court of record.' That every church meeting is a court of re- cord they were not ])re|)ared to say. The legislature, and ' they oidy,' have power ' to in- stitute and style jiulicatories and officers as they shall see necessary, for the government of the State.' 1 Stat. Conn. tit. 42, c. 1, s. 4. This jjower has been exercised, as far as has hitherto been deemed expedient. But in the distribution of the power thus delegated, we find no mention of a church, or church meeting, as constituting a court or judicial tribunal, with authority to decide between parties, or among their own members, any matter of con- trovesy, either in relation to their civil rights, their doctrines or their discipline. " Of the wisdom or ptdicy of such an omission it is not our province to decide. The fact, however, evinces a total destitution in church meetings, of all the powers incident to courts 596 OF PERJURY AND SUBORNATION OF PERJURY. [bOOK V. Inciting a witness to give particular evidence, where the inciter does not know whether it is true or false, is a high misdemeanor, especially if the inciter being attorney on one side gets himself employed for that or officers intrusted witli tlie execution of the laws ; and at the same time furnishes evi- dence of the delicate nature of the subject, and the expediency of legislative interference. " If, then, in the distribution of judicial powers, by the General Court or Assembly, churches, or church meetings, have received no share, or have been vested with no author- ity judicially to decide any question of law, or matter of controversy, or to do any official act, required to be done, and necessary to the due execution of the laws, they must be con- sidered as destitute of every requisite essential to a court. It follows, that a false oath vol- untarily taken, (and no other than a voluntary oath can be taken before them,) although a gross immorality, is no more the crime of perjury punishable by the statute, than a false oath voluntarily taken in any other place, before any number of persons associated by covenant or agreement to pursue any measure for their common benefit or the general good. " It remains to be inquired, whether the taking a false oath before a church meeting, is perjury at common law. No definition of perjury by the common law, will be found so long, or so broad, as to embrace, or even countenance the position, that to take a false oath before a church meeting (such as has been described) is perjury in any sense of the word, recognized by the law." The definitions of perjury, from 2 Hawk. 83, and Bla. Com., vol. iv., p. 136, are then stated, and the following remarks from Blackstone, quoted. " The law takes no notice of any perjury, but such as is committed in some court of justice, having power to administer an oath ; or before some magistrate or proper officer, invested with a similar authority, in some proceeding relative to a civil suit, or a criminal prosecution ; for it esteems all others unnecessary at least, and therefore will not punish the breach of them. " But recurrence to authorities is unnecessary. No precedent has, or can be shown in support of the proposition. The case of Lyman v. "Wetmore, does not bear on the question. There is no analogy between the powers and duties of arbitrators, and church meetings. The former are vested with powers to determine civil rights, and are sworn ' f^iithfuUy to administer justice between the parties in the case submitted, or referred according to law.' 1 Stat. Conn. tit. 122, c. 3, s. 6. "Not so with the latter. They have no uniform usage. They do not act under the com- mon law rules in relation to the admission and examination of Avitnesses, nor consider them as obligatory ; thej^ are bound by no oath prescribed by law in relation to their proceed- ings ; nor are they trusted, in any respect, as a court of law in the administration of jus- tice." (A case is here stated in a note, in which a question being put to an ecclesiastical counsel, whether in the admission of testimony, the counsel were governed by the rules of law, or to take the scripture for their rule, it was resolved that the Word of God was the rule by which they were to be governed.) " But it is said church members have civil privileges, which others do not possess. When of full age, they may vote at society meetings, (tit. 151, c. 1, s. 7, and tit. 144, c. 1, s. 2.) By excommunication, a church meeting may deprive them of this right. But it is to be ob- served, that if after excommunication, a question should arise, whether the right to vote continued, upon the ground of a former right or qualification in point of property, before admission and after excommunication, the court of law, and not a church meeting must decide it. " From these considerations, it is inferred, that to take a false oath before a church meet- ing, though an act highly immoral in itself, does not amount to the crime of perjury within the statute, or by the common law, is not an indictable offence, and to charge a person with it, cannot expose the person charged to a criminal prosecution or punishment." Upon the same side of the argument, it was added (among other important matter) by Goddard, J., that according to Coke, 3 Inst. p. 165, " that no old oath can be altered, or new oath raised without an act of parliament: or any oath administered by any that hath not allowance by the common law, or by act of parliament;" and hence it was, that the commissioners concerning policies of insurance, would not examine upon oath, be- cause they had no warrant, either by the common law, or by any act of parliament: and therefore it was enacted, that it should be lawful for the said commissioners to examine upon oath any witnesses. Christian in his notes to Blackstone's Com., vol. iv., p. 137, says, " Where an oath is re- quired by an act of parliament, but not in a judicial proceeding, the breach of that oath does not seem to amount to perjury, unless the statute enacts, that such oath, when false, shall be perjury, or shall subject the offender to the penalties of perjury." The same learned judge further adds — " It is a part of the definition of perjury, that the testimony should be material to the issue or cause in question." "If a man should be prosecuted for perjury before an ecclesiastical tribunal, their rules of evidence and modes of proceeding are so dif- ferent from those which prevail in a judicial tribunal, that judges and jurors might be much puzzled to ascertain either what was the issue, or what testimony was material to CHAP. I.] OF PERJURY AND SUBORNATION OF PERJURY. 596 purpose by the other side ; at least, if the evidence is given accordingly. The indictment charged that the defendant, an attorney, being retained to defend Wood against a charge of picking Lewis's pocket, deceitfully support it; and having no rules of evidence by which they wouhl judge of the materiality of the testimon}', resort must be had to the members of the church to prove what they judj;cd material." Ni;\v YoiiK. — In the case of Jackson v. Humphrey, 1 Johns. Rep. 499, it was decided, that an oath administered in Canada, by a late judge of a county in the state of New York, was extrajudicial and of no validity. That a judge has no authority to administer an oath out of the jurisdiction of the state, and that the Mitncss, in sucli case, could not be prosecuted for perjury. In an action of slander for charging the plaintiff with having sworn falsely and committed perjury in swearing out an attachment, &c., before a justice of the peace, it was held, that as tlie stiitute authorized the justice to issue the attachment on satisfactory proof, it was left to his discretion to decide on the proof, and when he took the oath of the party, which was not legal evidence, this w^as held an error of judgment, and not an excess of jurisdiction, and the proceeding was therefore erroneous only and not void ; and perjury may be assigned in an oath erroneously taken, esj)ecially while the proceedings remain unreversed. 10 Johns. Rep. 169, Van Steenbergh v. Kortz. Spencer, J., contra. {See Revised Statutes, vol. i., 149, 199. Vol. ii., 681.} Pknnsvlvania. — In order to constitute perjury, there must be "lawful oath administered in some judicial proceeding." False swearing in a voluntary affidavit made before a justice of the peace before whom no cause is depending, is not perjury, nor can it be punished by indictment, although it is a very immoral and disgraceful transaction. Per Tilghman, C. J., in Shati'er v. Kintzer, 1 Binn. Rep. 543. A man swears wilfully and deliberately to a matter that he rashly believes, but which he has no ])robable cause for believing, and which is false, is guilty of perjury. 6 Binn. Rep. 249, the Commonwealth v. Cornish. In this case, Tilghman, C. J., says, " It is contended that there can be no perjury where a man believes what he swears. But it appears to me that a position so extensive cannot be supported. He ought at least to have some probable cause for belief, unless the oath be taken under such circumstances of haste or surprise, as afford no opportunity of deliberation. If a man undertakes to swear to a matter of which he has no knowledge, he is perjured, although what he has sworn turns out to be true. 3 Inst. 166. AVhere a man Avas adjudged guilty of perjury for swearing to the value of goods which he never saw or knew, although his valuation was not incorrect. There is corruption in undertaking to swear po.sitively to a thing of wliich you have little knowledge, and M'hich j'ou may know if you will take the trouljle to intiuire. And when there is this kind of corruption the law implies malice. It is objected, that it may be of dangerous con- quence, if witnesses are convicted for swearing to what they believe to be true. On the other band, it will be more dangerous, if they are to escape punishment who rashly and obstinately persist in a false oath, in a matter on which they will not take the pains to inform them- selves. That the oath of Cornish (the defendant,) was absolute and false, will not be denied. It was wilful, also, according to the legal import of that word, by which it is onl}- under- stood that the oath is taken with some degree of deliberation, and not merely through sur- prise or inadvertency, or a mistake of the true nature of the (juestion." (3 IJac. Abr. 814, A.) Now here was great deliberation, or at least room for deliberation: for there was an interval of two days for the first and second oath ; and the first was taken two days after the affray in which the defendant was shot. In cases where the oath w-as clearly false, I know no rule more reasonable, than to leave it to the jury to decide, whether there was any probable ground for mistake." And in the same case, jycrBrackenridge, J., " The ques- tion is, can a man be guilty of perjury who believes what he says to be the truth ? Pro- bable cause or reasonable ground of belief, in a prosecution in a course of justice, will exempt from damages. The want of proljable cause or reasonable gToym(\, pari i-atione, will subject to the conviction of perjury. For the malice is an inference of law, from the want of probaljle cause or reasonable ground. I am not to be at the mercy of the weakness of a man; and the law will protect against the weakness as well as against the actual wicked- ness of him, who attacks my reputation by an oath in a court of justice. It is the same thing to me w-hether it was his weakness or actual malice and wickedness, that led him to take the oath. " It interests the public that rash and unadvised swearing a crime upon another, should be restrained; and how can this be done if the only inquiry shall be, whether the weak man really thought which he swore was true. It ought to be at a man's risk to swear jiositively under circumstances where he ought to have mistructed his vision, and could not be certain as to what he undertook to say he positively saw." In the case, Respublica v. Robert Newell, 3 Yeates's Reports, 407, it was decided, that in an indictment for perjury in answering interrogatories on a rule to show cause why an at- ta'hmcut should not issue for a contempt, &c., in a civil suit, the interrogatories mny be entitled as between the state aud the party, and the perjury be assigned in the answers 596 OF PERJURY AND SUBORNATION OF PERJURY. [bOOK V. procured himself to be employed by Lewis, and persuaded Lewis to swear before the grand jury that he did not know who picked his pocket, which he did, and no bill was returned. An objection was thoreco, before the attachment actually issued. It was also decided that such indictment is suflRciently certain, by averring that the party was sworn in due form of law. After a con- viction in this case, the following reasons were filed in arrest of judgment: — 1. That the affi- davit on which the perjury is assigned, is stated to be on an interrogatory filed between the C;oninion\vealth and the defendant, on the part of the Commonwealth, without stating any proceeding on the part of the Conimonvvealtli and the defendant, in which the said affidavit would be material. 'I. For that it is not stated that the defendant took an oath on the Holy Gospel of God, or in the presence of Almighty God by uplifted hand. 3. For that in the assignment of the perjury it is not stated that he did falsely, corruptly, and voluntary swear. 4. That the said indictment is insensible, &c. The opinion of the court was delivered by Smith, J., in which these objections are all overruled, and the motion in arrest of judgment denied. The opinion contains a statement of the reasons and authorities upon which it is founded, to Avhich the reader must be referred. The third reason in arrest of judgment was considered as most material, and the learned Judge states at large the grounds and authorities upon which it was overruled. He first goes into a comparison between the English statute of 5 Eliz. c. 9, and the statute of Pennsylva- nia; and then says, "the law is perfectly ascertained, that one may be guilty of perjury at common law', in respect of a false oath taken by him in his own cause, in answer to ques- tions put to him in a court of law having power to purge him upon oath, concerning his knowledge of the matters in dispute." In Olficium Clerici Pacis, fol. 8V, there is an indictment resmbling the present case. Again in West's 8ymb. 119, sect. 160, a similar form occurs, and in the same book and page, sec. 161, and in p. 138, sec. 241. The result is, that at common law the forms of indictments are not uniformly the same ; but the words falsely, corruptly, and wilfully, as applied ad- jectively or adverbially to the act of swearing, are mere expletives to swell the sentence, in the language of Lord Hardwicke, 1 Atk. 50. We find no adjudged case or dictum in the books, that such words are appropriate terms of art, descriptive of the crime of perjury, as murdraxit in murder, &c. On the contrary, we find it laid down by the judges, that an in- dictment for perjury at common law does not require so much certainty as on the statute, and that it need not be in a court of record; or matter material to the issue. 5 Mod. 348. 1 Sid. 106. In Cox's case, (Leach, 69,) it was agreed by ten judges unanimously, that the word wilfully was not essentially necessary in an indictment for perjury at common law, though it was essential in an indictment for perjury on the statute of 5 Eliz. c. 9, because the term wilful in the statute, is a material description of the oflence ; still it must appear by the indictment that the oa,th was wilfully false. The indictment in this case, in its con- clusion, negatived by express averments, the truth of the oath, &c., viz., " that the said P. N. the day and year aforesaid, at C. aforesaid, by his own act and consent, and of his own most wicked and corrupt mind and disposition, in manner aforesaid, did knowingly, falsely, wickedly, maliciously, and corruptly commit wilful and corrupt perjury," &c., though it was not averred that the defendant did falsely, corruptly and voluntarily swear, &c. Two defendants cannot be joined in an indictment for jierjury. Respublica v. Goss and al., 2 Yeates'sRep. 479, — adjudged 2 Str. 921. 2 Burr. 985, — and on an indictment for perjury on a trial lit niu priiia, the poslea must be produced in evidence. Respublica v. Goss and al., 2 Yeates, 479. {See post, 549.} In the case of Kramer v. The Commonwealth, in error, it was decided that the courts of Quarter Sessions for this state, have jurisdiction of perjury. Also, that persons convicted of perjuror are liable to fine and imprisonment at hard labour, but not to any particular kind of treatment as to diet or discipline. A sentence, therefore, which adjudges that the con- vict shall be confined, fed, clothed, and treated as the law directs, is erroneous. 3 Binn. Rep. 577. {United States.— By st. 1790, c. 36, ^ 18, (1 U. S. Laws, 87, Story's ed.) wilful and cor- rupt perjury, and the procuring any person to commit corrupt and wilful purjury, on oath or affirmation in any suit, controversy, matter or cause, depending in any of the courts of the U. States, or in any deposition taken pursuant to the laws of the U. States, are punish- able by imprisonment not exceeding three years, and fine not exceeding eight hundred dol- lars, and standing in the pillory for one hour, and future incompetency to give testimony in any of courts of the U. States, until judgment is reversed. The 19th and 20th sections provide that it shall be sufficient to set forth, in an indict- ment, the substance of the offence of perjury or subornation. See post, 536. It was decided, in an anonymous case in 1 Wash. C. C. Rep. 84, that this section relates only to perjuries committed in judicial proceedings in the courts of the United States, and does not extend to cases of perjury in proceedings under the bankrupt act, and other pro- ceedings under the authority of the United States. It seems that perjury committed on a hearing on a criminal complaint before a district judge, is not within § 18 of this statute. 1 Gallison, 497, U. States v. Clark. CHAP. I.] OF PERJURY AND SUBORNATION OF PERJURY. 596 made that Lewis's evidence was not staled to have been false ; but, upon a case reserved, the judges thought it unnecessary, as the dcfcud- aat's crime was the same, unless he knew it to be true, and that he should have proved. (c) *The false oath must be wilful, and taken with some degree of dclibe- *597 ration,! ^'^"^ '^ upon the whole circumstances of the ca.so it shall appear Tln' t'also probable that it was owing rather to the weakness than porverseness of J^^ wi'l'iul* the party, as where it was occasioned by surprise, or inadvertency, or and ukon a mistake of the true state of the question, it cannot but be hard to V' '"""." make it amount to voluntary and corrupt perjury, which is of all crimes delil'dii- whatsoover the most infamous and detestable. ((/) •' ^'""• It has been said that no oath will amount to perjury, unless it be a man may sworn absolutely and directly, and therefore, that he who swears a thing bo indicted according as he thinks, remembers, or believes, cannot, in respect of /„ j^^|;.^\.i„g such an oath, be found guilty of perjury. (e)']' But De Grey, Ld. C. J., (c) Rex. V. Edwards, East. T. 1764, MS. Bayley, J. And as to dissuading witnesses from giving evidence, see vol. 1, p. 182. () inan-ia-'o And the same doubt was entertained in a subsequent case, where the lic<.osc. defendant was indicted for perjui-y in an affidavit in Doctors' Commons, in order to obtain a license to marry one C. Hill, spinster, to which he swore that he knew no lawful impediment, whereas in truth and in fact he knew she was the wife of another man.((/) And it has been lately decided that a false oath before a surrogate, taken in order to procure a marriage license, will not support a prosecution for perjury; and, fur- ther, that if the indictment only charges the taking the false oath with- out stating that it was for the purpose of procuring a license, or that a license was procured thereby, the party cannot be punished thereupon as for a misdemeanor. The indictment stated that the prisoner, being minded to procure a marriage betAveen himself and *A. B., went before *599 a surrogate, and was sworn to an affidavit in writing, that the said A. B. had been residing four weeks in the parish of S., whereas she had not, and so had committed perjury; and the indictment had all apt allegations of an indictment for perjury. But a case being reserved upon the question whether on such an affidavit the party could be prosecuted for perjury, and if not, whether upon this indictment any offence was charged, the judges were unanimous that upon an oath before a surro- gate, perjury could not be assigned; and that as this indictment did not charge that the defendant took the oath to procure a license, or that he did procure one, no punishment could be inflicted, and he was therefore pardoned. rr) It appears, however, from this case that if the purpose of (o) Rex V. Crossley, 1 T. R. 31.5. (p) Alexander's case, 0. B. 17G7. 1 Leach, 63. The point was admitted to the conside- ration of the twelve judges, and several times agitated ; but the result was not communica- ted, as the prisoner died in Newgate. (f/) Woodman's case, 0. B. 17G8. 1 Leach, G4, note (a). The point appears to have been submitted also in this case to the consideration of the twelve judges; but their opinion was not j)uhlicly communicated. In 3 Chit. ('rim. L. 713, a precedent is given of an information by the attorney-general for a misdemeanor in procuring a marriage with a minor, ))y false allegations ; and in tlie note [a), it is said, " It seems doubtful whether an indictment for perjury coukl have been supported in this case : but it seems most probable that it might." And 1 Leacli, 63, is referred to. (?•) Rex V. Foster, East. T. 1821, MS. Bayley, J., and Russ. & Ry. 459. 599 OF PEKJURT AT COMMON LAW. [bOOK V. Hucli an oath is to obtain a license, and the license is obtained, and marriage had, the party may be indicted as for a misdemeanor. The nature of the oath at present required to be taken before the surrogate is described in the 4 Geo. 4, c. 76, s. 14, and by section 23 of that statute, when a marriage has been effected between parties under age, contrary to the act, by means of a false oath or fraud, certain proceed- ings are given by which the guilty party may be made to forfeit all property accruing from the marriage. As a suit will be abated by the death of a co-plaintiff, unless the death be suggested according to the 8 & 9 "Wm. 3, c. 11, s. 6, it has been ruled that if a co-plaintiff die, after issue joined, a ti'ial without such suggestion on the record would be extra-judicial, and that no per- jury could be assigned upon any false evidence given at such trial, (.s^ And it must The oath must be taken before a competent jurisdiction, that is before be taken gome person or persons lawfully authorized to administer it. So that a competent false oath taken in a cotirt of requests, in a matter concerning lands, jurisdic- lias been holden not to be indictable, that court having no jurisdiction in such cases. ('^)"}' And it seems clear, that no oath whatsoever taken before persons acting merely in a private capacity, or before those who take upon them to administer oaths of a public nature, without legal authority for their so doing, or before those who are legally authorized to administer some kinds of oaths, but not those which happen to be taken before them, or even before those who take upon them to adminis- ter justice by virtue of an authority seemingly colourable, but in truth unwarrantable and merely void, can ever amount to perjuries in the eye of the law, because they are of no manner of force, but are altogether idle.(w) But a false oath taken before commissioners, whose commis- sion at the time is in strictness determined by the demise of the king, is perjury, if taken before such time as the commissioners had notice of (.s) Rex r. Cohen,* 1 Stark. R. 511. [t) Buxton V. Gouch. 3 Salk. 269. [u) 1 Hawk. P. C. c. 69, s. 4, and the authorities there cited; and 4 Bla. Com. 137, where it is said, " it is much to be questioned how far any magistrate is justifiable in taking a vol- untary afflAavit in any extra-judicial matter, as is now too frequent upon every petty occa- sion, since it is more than possible that by such idle oaths a man may frequently in foro comcientice incur the guilt, and at the same time evade the temporal penalties of perjury." See the 5 & 6 Wm. 4, c. 62, s. 13, post, p. 617. •j- {Enough must be shown to give the tribunal jurisdiction: On a submission by bond to arbitrators, and perjury assigned in an oath before them, the bonds must be produced. I'er Savage, C. J., 9 Cowen, 30. Bullock v. Koon. In South Carolina, arbitrators have no au- thority to administer an oath, and a person cannot be indicted for taking a fVilse oath, before them. 3 McCord, 308, State v. McCroskey. But perjury may be assigned on an oath ad- ministered by a justice of the peace, on an investigation of a matter submitted to arbitrators. 4 ib. 165, State v. Stephenson. See also 1 Virginia Cases, 181, 265, Commonwealth v. Calvert. 2 ib. 30, Commonwealth V. Conner. Where, on reference of a cause by a judge's order, the witnesses were directed to be sworn before a judge, or " before a commissioner duly authorized ;" and a witness was sworn be- fore a commissioner for taking affidavits, and examined viua voce by the arbitrator — it was held that the witness, so sworn, was not indictable for perjury. 3 Car. & Payne, 419, [Eng. Com. L. Rep. xiv. 876.] Rex v. Hanks.} [No perjury can be assigned on an extra-judicial oath. Lamden v. The State, 5 Humphreys, 83. Swearing falsely before a person not authorized to administer the oath is not perjury. But fiilse swearing before a clerk that a person applying for a marriage license is over twen- ty-one years of age, whereby the person applying is enabled to obtain a marriage license, and the marriage takes place, is a misdemeanor. Williarnson^s case, 4 Grattan, 554.] * Eng. Com. Law Reps. ii. 489. CHAP. I.] OF PERJURY AT COMMON LAW. 5^9 the demise ; for it would be of the utmost ill couscqueuce in such case to make their proceedings wholly void.(x) *The oath must be material to the question depending : for if it bo *G00 wholly f(ireil) Rex V. Gricpe, 1 Lord Raym. 25G. B.ic. Ab. tit. Perjury, (A). (z) 2 Roll. 41, 42, ,309. Hetl. 97. 1 Hawk. P. G. c. 69, s. B. (a) 1 Hiwk. P. C. c. 69, s. 8. ■}■ [Where three or more persons were alleged to be jointly concerned in an aa.sault, and it was contended to be immaterial if all partici[)ated in it, by which of them certain acts were done — held to be material, and that evident-c as to the acts of either, if wilfully and falsely- given, constitutet perjury. Stale v. Norrix, 9 N. Hamp. 96.] Vol. II.— 39 600 OF PERJURY AT COMMON LAW. [BOOK V. the close ; and being asked how he knew them to be the defendant's, swears that he knew them by such a mark, which he knew to be the defendant's mark, whereas, in truth, the defendant never used any such mark.(i) And it appears to have been holdcn not to be necessary that *G01 it should be *shown to what degree the point in which a man is per- jured was material to the is.suc, and that it will be sufficient if the point It noed not Were circumstantially material. (c) And still less is it necessary that be sufficient ^ijg evidence be sufficient for the plaintiff to recover upon, since evi- to prove the .11 /.n 1 ^^ ,^ point in dcnce may be very material, and yet not lull enough to prove directly question, the point in question. ((Z) In a modern case, where A. advanced money to B. on two distinct mortgages, upon one of which the security was in- sufficient, and B. assigned the equity of redemption in both to C, who assigned the insufficient estate to an insolvent, and filed a bill against A. to redeem the other, to which bill A. put in his answer, and therein denied having had notice of the assignment to the insolvent; it was holden that the notice was a material fact upon which perjury might be assigned, (e) Where an indictment for perjury, alleged to have been committed before commissioners of taxes on an appeal of W. Hewatt against a surcharge for a greyhound used by W. Hewatt on the 24th of Novem- ber, averred that it was a material question whether a certain receipt produced by the defendant on the hearing of the said appeal was given to him before the 12th day of September then last past, and that the defendant falsely swore that the said receipt was given to him before the 12th day of September aforesaid ; and it appeared, that at the com- missioners' meeting evidence was given that Hewatt and the defendant were coursing with two greyhounds on the 24th of November, and that one of the dogs had been Hewatt's, who had no certificate; on the 28th of November, he was surcharged for a greyhound, and on appealing against this surcharge, he stated that the dog had been sold to the de- fendant long before, and he called the defendant as a witness, who swore that he bought the dog of Hewatt on the 6th of September, and produced a receipt for the purchase money bearing that date ; he was asked by the surveyor whether the receipt was given at the time of the sale, and he said it was not, but a few days after ; andf on being pressed, he said that it was given to him before the 12th of September; and, on the surveyor pointing out that the stamp on the receipt bore date the 18th of November, and saying that the defendant must be mistaken, the defendant persisted in his statement, and swore positively that the re- ceipt was given to him before the 12th of September. It was proved that the paper on which the receipt was written was stamped on the 18th of November, and could not have been issued from the Stamp-office be- fore that day. It was objected that the materiality of the question as stated in the indictment had not been proved ; the material question was whether the dog was Hewatt's or the defendant's on the 24th of November, the day of the coursing; but Patteson, J., after consulting Parke, B., overruled the objection, and the defendant was convicted; and upon a case reserved, the same objection being urged, Lord Abin- (b) Bac. Ab. tit. Perjury, (A). 1 Hawk. P. C. c. 69, s, 8. See ^Reg. v. Gardiner, post, p. G33, efseq. (c) Rex V. Griepe, 1 Ld. Raym. 256. (c?) Reg. V. Rhodes and Cole, 2 Ld. Raym. 886. (e) Rex V. Pepys, cor. Kenyon, C. J. Peake, N. P. R. 138. CHAP. I.] OF PERJURY AT COMMON LAW. 601 gcr, C. B., said, "The whole matter turned on the credit of the wit- ness, and he tries to support his credit by false evidence. The receipt is to confirm his evidence, and he swears it was given bi-fore the 12th. If that were true, the proof would be decisive." Williams, J. — "The time when this receipt was given, is a step in the proof." Lord Pen- man, C. J. — « You cannot dispute that everything that comes out at a trial is material, if it goes to the credit of the witness." Lord Abin- ger, C. B. — " Every question on the cross-examination, which goes to the credit of the witness, is material. If a witness were asked, in cross- examination, whether he was in such a place at such time, and he denies it, that would be material, if it went to his credit. In the present case, if they could not have contradicted the witness by the date of the stamp, the receipt confirming his evidence would have made out the case before the commissioners." And the conviction was held right. (ee) The iudgment was afterwards reversed, on another ground of error. See vol. 2, p. G39. Upon an indictment fur perjury in an answer to a bill filed against P. rjury the defendant in Chancery, stating that the defendant promised to pay cannot be Martin 1000?. as a marriage portion, when he was about to marry theau'auswer defendant's niece ; the defendant, by his answer, insisted that as there '" Chan- was no promise in writing, he was entitled to the benefit of the Statute |^,y'if,',r a " of Frauds, but as to the fact denied that he had ever made any such promise promise, on which denial perjury was as.signed. Lord Kenyon, C. J-"^7db''f said, that " he thought this was not such a material fact as would sup- statute of port the indictment. This promise was ab.solutely void, and supposing ^'■'i"'^^- it in fact to have taken place and acknowledged by the defendant, could not be enforced either at law or in equity; that court hud no power to decree a performance of it. It might be a false swearing, but did not amount to what the law denominated perjury. "("y^) So where upon an indictment for perjury, alleged to have been com- Perjury mitted in answer to a bill filed in Chancery, it appeared that the bill '""".""' ^® •' ' , ^ '■ iissignod in was filed against the defendant and Robinson, in order to compel theswearingas specific performance of a contract for the purchase of a freehold estate, *" ^ V^^°} ,. i-ii'iii 1 • •• contract for and it was not stated in the bill that the contract was in writing, but it die i^alc of was alleged that the defendants had frequently since the contract was^'^"'^'- entered into, admitted that the plaintiflfs were interested in the purchase; and the defendants in their answer pleaded that the alleged agreement not being in writing, was within the fourth section of the Statute of Frauds and could not be enforced, and also denied the agreement as set forth in the bill, and denied that they ever admitted that the plaintiiFs were interested in the purchase as stated : and upon these denials per- jury was assigned. It was admitted that the agreement was not in writing, and that there was not any memorandum or declaration of trust respecting it. It was objected that the alleged perjury was not material or relevant to the matter in issue in Chancery ; the agreement not being in writing, the defendant relied on the Statute of Frauds as a good ground of defence. The denial therefore of an agreement which the court had no power to enforce, was immaterial and irrelevant to the in- vestigation of the several matters in the bill. The coun.sel for the prosecution cited Bartlett v. Pickersgill,(«7) where a party was con- fee) Reg. V. Overton,* 1 C. & Mars. G5.'). (/) Rex v. Benesech, Peake, Add. C. 93. \g) 4 Burr. 2255. 4 East, 577, in notis. » Eng. Com. Law Reps. xli. 355. 601 OF PERJURY AT COMMON LAW. [BOOK V. victed of perjury for the denial of a parol agreement for the purchase *C02 of an estate, *which parol agreement a court of equity had refused to enforce. Abbott, Ld. C. J., <' It does not appear from the short state- ment of the case which has been cited, and which is not very distinctly reported, whether the Statute of Frauds was there pleaded and relied on. But in the present case the defendants have in their answer pleaded the statute, and insisted that tliis agreement not being in writing, and relating to the sale of land, is within the fourth section of that statute, and cannot be enforced. As a judge of a court of common law, it is competent for me to form my opinion upon the construction of this statute, although I cannot be prosemed to know how a court of equity might deal with it. The statute, for the wisest reasons, declares that agreements of this description shall not be enforced unless they are re- duced into writing. These defendants, therefore, having insisted upon the statute in their answer, the question is, whether under such circum- stances the denial of an agreement, which by the statute is not binding upon the parties, is material; I am of opinion that it was utterly imma- terial. It was necessary that the matter sworn to and said to be false, should be material and relevant to the matter in issue : the matter here sworn is in my judgment immaterial and irrelevant, and the defendant must be acquitted."(/i) But where But where the indictment stated that a bill was filed in Chancery fii^ft^ '^ against the defendant, stating an agreement to purchase certain wheat, aside a to be paid for by draft at three months, which agreement was not re- written duced into writing, and that afterwards a bought note was delivered to the o^round the defendant, which did not contain fully the terms of the agreement; of fraud, a that the defendant brought an action and recovered a verdict, and that be'euilTv of ^16 was enabled to obtain such verdict by reason of his fraudulently con- perjury in cealing the true terms of the agreement, and the bill prayed that one of swearing ^-^^ terms of the contract might be declared to be that the purchase liiisciy a.s ^ 111 \ n to terms of money should be paid by a bill of exchange, payable three months after the con- date: and the defendant by his answer denied the parol agreement trSjCt not 1 «— contained Stated in the bill, and the bill was dismissed, and the denial by the de- m writing, fendantwas the subject of the indictment for perjury. It was contended that the indictment could not be sustained. The only legitimate evi- dence of the contract was the bought and sold notes. 'The contract by parol was void by the Statute of Frauds, and a false answer to a bill for the discovery of such a contract would not subject a person to an indict- ment for perjury; and Rex v. Dunston,(6) was relied upon. Coleridge, J., "In that case, the bill in Chancery was to enforce the performance of a parol contract, which could not be enforced by reason of the Statute of Frauds ; and the case of Rex v. Benesech(y) proceeded on the same ground. Though it is true that a party cannot vary the terms of a written contract by parol evidence, he may show by such evidence that he was induced to sign the written contract inadvertently and by fraud. In this case the object of setting up the parol terms of the contract is for the purpose of avoiding the contract on the ground of fraud. " I think that the principle, that the parol evidence is inadmissible to contradict or vary the terms of a written contract, does not apply where the object *G03 of that cv'.dcnce, as in this case, is to impciich'* the transaction on the (/,) Eex V. Dunstor,' P. & Y. N. P. P. 109. (i) Supra. (./) S'pra, note {/]. » Eng. Com. Law Reps. xxi. 392. CUAP. I,] OF PERJURY AT COMMON LAW. 608 grouudof fraud. I tbiuk that the assignment of perjury on the denial iu tho answer of the parol terms, which thu bill prayed to have estab- lished, is material and relevant; and I think thercfuro that the objection cannot be sustained. "(/.•) Perjury may be committed on the trial of an indictment, which is PiTjury on afterwards held bad upon a writ of error. An indictment tharired the "'f 'nnl of dcfendant with having committed perjury on the trial of a pievious in-m'-nt re- dictment for perjury upon which a party had been convicted and sen- '^';'^''*'"^"I"'" tenced, but a judgment reversed on a writ of error on the ground that the assignment of perjury was insufficient ;(/) and it was objected that the evidence of the defendant never could have been material, as the former iudiclraent was held bad upon a writ of error; but the objection was overruled, on the ground that whether a witness had committed a wilful and corrupt perjury or not, could not depend on the validity in point of firm of the indictment as to which he gave evidence. («t) It should be observed that a man may be as much perjured by an A man oath taken by him in his own cause, either in an answer in Chancery, ""% ^®j •' ' ^ . perjured or in an answer to interrogatories concerning a contempt, or in an affi- by an oath davit, &c., as by an oath taken by him as a witness in the cause of an-J'!*^*^" "^ *^ *' hiji own other person. («)f But the oath must be taken by a person sworn to cause, depose the truth ; and a false verdict does not come within the notion T^"t ^ ''■'l=*'» of perjury, because the jurors do not swear to depose the truth, but only „„( como to judge truly of the depositions of others. (o) umUr tho A further point of general application may be mentioned, namely, "yriurv" that it appears not to be important whether the false oath were credited jj j^, „„j or not, or whether the party in whose prejudice it was taken were in nece.-.rarj the event any ways damaged by it, for the prosecution is not grounded J..^'|'_,* "i|\j on the damage to the party ,^ but on the abuse of public justice. (p) were cro- In some cases, where a false oath has been taken, the party may be'^''*^''- prosecuted by indictment at common law, though the offence may not .^"|.^f 'V'.*''* amount to perjury. Tlius it appears to have been holden, that any in soma person makini' or knowingly usiu2; any false affidavit taken abroad, ^■■'^^'''•, . o J o J _ 1 thouirh no (though a perjury could not be a.isigned on it here) in order to mislead assignable our coui'ts of justice is punishable by indictment as for a misdemeanor ; as perjury, and Lord EUenborough, C. J., said, "that he had not the least doubt, that any person making use of a false instrument in order to pervert {k) Reg. V. Yates,* 1 C. & Mars. 1.T2. [l) .See Tleo;. v. Riirraston, /jo.'/, p. 641. {m) RciT. V. Meek,'' C. & P. 01.3, Williams, J. Mullett v. Hunt, 1 Cr. & M. 7."j2, was cited in support of the objection See also Davis v. Lovell, 4 M. k W. G78. See 1 Hawk. P. U. c. 69, s. 4, cited, post, p. G20. («) 1 Hawk. P. C. c. G9, s. 5. P)ac. Ab. tit. Perjiin/, (A). (o) Id. ibid. (p) 1 Hawk. P. C. c. G9, s, 9. Bac. Ab. tit. Perjunj, (A). In Rex ». NichoUs, 01once?tPr Sum. Ass. 1838, cor. Patte.son. J., the prisoner had on the trial of one Pilt for larceny, sworn that he had not given the stolen proi)crty to Pitt, but he was contradicted by other witnesses, and the jury disbelieved him, and acquitted Pitt, and he was convicted of perjury iu so swearing, and transported for seven years. C. S. G. f [In a trial before a justice of the peace, if the plaintiff otfer himself as a witness, is sworn and testifies falsely, perjury may be assigned on the oath thus taken. Monlgommj v. The State, 10 Ohio, 2'20. Where a party to a suit, on the trial thereof presents himself as a witness in supjiorl of the charges agiust the adverse party in liis account book, and voluntarily takes the general oath to tell the truth, the wlinle trutli, and nothing but the trutli, legally administered, instead of of the more restricted oath to make just and true answers to such (lueslimis as sliall lie asked — and testifies untruly, wittingly and willingly, to Tuatters material and legitimately deriv- able from him, he may be convicted of perjury. Stale, v. Kecne, 2G Maine, 33.] » Eng. Com. Law Reps. xli. 77. •» lb. xxxviii. 201. 603 OF PERJURY, ETC., BY STATUTES. [BOOK V. the course of justice was guilty of an offence punishable by indict- ment. "(i') Statutes We may now proceed to consider the 5 Eliz. c. 9, and other statutes rolatin- to ^j^j^j^ j.^.j^^.^ ^^ ^j^^ offcnce of perjury. porjury : f j j »,.Q I The 5 Eliz. c. 9 (made perpetual by the 29 Eliz. c. 5, s. 2, and 21 5 Eliz. c. J^^" •'■J ^' -^^^ ^- ^) enacts by sec. 3, ^'that all and every such ^person and 6, s. 3._ persons which shall unlawfully and corruptly procure any witness or anv^wUnfss witnesses by letters, rewards, promises, or by any other sinister and to commit unlawful labour or means whatsoever, to commit any wilful and corrupt perjury in pgj.jm.y^ j^ ^^^ matter or cause whatsoever now depending, or which in suit, by hereafter shall depend in suit and variance, by any writ, action, bill, writ, &c., complaint, or information, in any wise touching or concerning any lands, any lands" tenements, or hereditaments, or any goods, chattels, debts, or damages, goods, ) And with respect to naval courts-martial, the 22 Geo. 2, c. 33, And ia s. 17, enacts, " that all and every person and persons who shall commit "'^^"^ any wilful perjury, in any evidence or examination upon oatli at any yj^rtial. such court-martial, or who shall corruptly procure or suborn any person to commit such wilful perjury, shall and may be prosecuted in his majesty's Court of King's Bench, by indictment or information ; and every issue joined in any such indictment or information shall be tried by good and lawful men of the county of IMiddlesex, or such other county as the said Court of King's Bench shall direct j and all and every person and persons, being lawfully convicted upon any such in- dictment or information, shall be punished with such pains and penalties as are inflicted for the like offences respectively by the 5 Eliz. c. 9, and 2 Geo. 2, c. 25." The 6 Geo. 4, c. 78, s. 59, enacts, " that in all cases wherein by virtue Perjury of this act, or ;'ny other act hereafter to be made touching qunrantine, ^q^^^^^,f^i,^g_ any examination or answer shall be taken or made upon oath, the person who shall be authorized and required to take such examinations and answers shall and may be deemed to have full power and authority to administer such oaths : and if any person who shall be interrogated or examined shall wilfully swear falsely to any matter concerning which such person shall depose or make oath on such examination, or in such answer, or if any person shall procure any other person so to do, he or she so swearing falsely, or procuring any other person so to do, shall be deemed to have been guilty of, and shall be liable to be prosecuted for perjury, or subornation of perjury, as the case may be, and shall suffer the pains, penalties, and punishments of the law, in such case respec- tively made and provided." The 6 Geo. 4, c. 125, entitled " an act for the amendment of the laws Perjury in respecting pilots and pilotage," enacts by sec. 80 "that every Person, '■*:°P^^^''^g**^ who in any examination upon oath unJer the provisions of this act, shall Ac., of wilfully give false testimony or a false account of the matter sworn to by ^^'P^* him, shall be liable to be prosecuted for the same by indictment; and if duly convicted of false swearing in the premises, shall be subject and liable to such punishments, dis(jualificati(jns, and disabilities, as any person would be subject or liable to for wilful and corrupt perjury, in any other case, by the laws and statutes of this realm." The act for the reiristeriiig of vessels, 3& 4 Wui. 4, c. 55, s. 45, enacts, Tn respect tiiat if any person shall falsely make declarations to any of tlie matters *|jj,,,^,^j„ 'f licreiiibefore required to be verified, such person shall forfeit five hun- vessels, dred pounds. The 5 Geo. 4, c. 113, which was passed to prevent the traffic in slaves, Perjury un- onacts by sec. 41 "that if any oath takiMi under this act shall be wilfully ^1*;^^^^ Ir&Ae false, or if such false oath shall be unlawfully or wilfully procured or act. suborned, the oiTender shall incur and sufler the like *pains aud penalties ' ''J - as are by liw inflicted upon persons committing wilful and corrM{)t per- jury or subornation of perjury respectively." Aud section 58 provides {p) Ami cc a similar clause in the 5 & G Vict. c. 13, s. 59, being the act for regulating the marine forces. 612 OF PERJURY, ETC., BY STATUTES. [BOOK V. for the prosecution, trial, and punishment of persons who may give false evidence in any examination or deposition, or affidavit had or taken upon or in any proceeding before the commissary, judges, or commis- sioners, mentioned in the act, or before the secretary or registrar under the treaties, conventions, instructions, or regulations therein men- tioned. ((/) Perjury in The 10 Geo. 4, c. 50, an act to amend the laws relating to the land respect of revenues of the crown, &c., enacts, by sec. 83, " that any officer or other the land i i n • .„ . . . *^ revenues, person, who shall in any verification, or examination upon oath men- &c., of the tioned in that act, be guilty of wilful and corrupt perjury, shall be liable to be punished in such manner as by the different laws and statutes then iu force for the punishment of wilful and corrupt perjury." Perjury by The Grcueral Inclosure Act, 41 Geo. 3, c. 109, s. 43, enacts, '^ that if inclfsm-T^ any person or persons shall in any examination, affidavit, deposition, or act. affirmation, to be had or taken in pursuance of this act, before such justice or justices, or such commissioner or commissioners, knowingly and wilfully swear and affirm any matter or thing which shall be false or untrue, every such person so offending shall, on conviction thereof, be deemed guilty of perjury, and shall suffer the like pains and penalties as persons guilty of wilful and corrupt perjury are now subject and liable to." Perjury The Registry Act for the West Riding of Yorkshire, 2 & 3 Anne, c. 4, Regtstry^ enacts, by sec. 19, " that if any person or persons shall at any time for- Actfor swear himself before the said register or his deputy, or before any judge ancmM'^^ or master in Chancery, in any of the cases aforesaid, and be thereof dlesex. lawfully convicted, such person or persons shall incur and be liable to the same penalties, as if the same oath had been made in any of the courts of record at Westminster." A similar provision is contained also in the 5 & 6 Anne, c. 18, which regulates the inrolment of bargains and sales of land, &c., in the same Riding; in the Middlesex Registry Act, 7 Anne, c. 20, s. 15; and also in the 8 Geo. 2, c. 6, s. 33, which relates to the registry of deeds, &c., in the North Riding of the county of York. Perjury by The Bribery Act, 2 Geo. 2, c. 24, gives the form of an oath or affirma- elMtors, ^Jqjj ^Jjj ^^g g^gg ^f ^ Quaker,) to be taken by electors, and the form of 24. * ' ' an oath to be taken by the returning officer ; and then enacts by sec. 5, "that if any returning officer, elector or person, taking the oath or affir- mation herinbefore mentioned, shall be guilty of wilful and corrupt perjury, or of false affirming, and be thereof convicted by due course of law, he shall incur and suffer the pains and penalties, which by law are enacted or inflicted in cases of wilful and corrupt perjury." 2 Wm. 4, c. The 2 Wm. 4, c. 45, entitled «an act to amend the representation False an °^ *^^ people of England and Wales," by sec. 58, enacts that in all swers by elections whatever of members to serve in parliament, " no inquiry shall voters at be permitted at the time of polling as to the right of any person to vote, except only as follows ; that is to say, that the returning officer or his respective deputy shall, if required on behalf of any candidate, put to any voter at the time of his tendering his vote, and not afterwards, the following questions or any of them, and no other : *613 1. Are you the same person whose name appears as A. B. on the reg- [q) See also the 6 & 7 Wm. 4, c. 5, s. 8. CHAP. I."| OF PERJURY, ETC., BY STATUTES. 613 ister of voters now iu force for the county of (or for the riding, parts or divisions, kc, or for the city, &c., as the case may be)? 2. Have you already voted, eitlicr here or elsewhere, at this election for the county of (or for the riding, parts, or division of the county of or for the city or borough of as the case may be) ? 3. Have you the same qualiflcation for which your name was originally inserted in the register of voters now in force for the county of, &c., (or for the riding, &c., or for the city, &c., as the case may be, specifying in each case the particulars of the qualification as described in the register) ? And if any person shall wilfully make a false answer to any of the questions aforesaid, he shall be deemed guilty of an indictable misde- meanor, and shall be punished accordingly,(/-) and the returning officer or his deputy, or a commissioner, or commissioners to be for that pur- pose by him or them appointed, shall (if required ou behalf of any can- didate at the time aforesaid,) administer an oath (or in case of a Quaker or Moravian, an affirmation) to any voter in the following form : that is to say, " You do swear, (or being a Quaker or Moravian, do affirm,) that you are the same person whose name appears as A. B. on the re^xister of voters now in force for the county of (or for the riding, parts, or division of the county of or for the city or borough of as the case may be,) and that you have not before voted, either here or elsewhere, at the present election for the said county, (or for the said riding, parts, or division of the said county, or for the said city or borough, as the case may be.) So help you God."(s) And no elector shall hereafter at any such election be required to take an oath or affirmation except as aforesaid, either in proof of his freehold or of his residence, age, or other qualificati(m or right to vote, any law or statute, local or general, to the contrary notwith- standing." The same statute by sees. -41 & 50 provides that the Revising Barris-See. 52. tors shall hold open courts for the purpose of revising the lists of voters J*'^'^"''y for counties and boroughs, and section 52 enacts, that "every such bar-risters. rister holding any court under this act as aforesaid, shall have power to adjourn the same from time to time, and from any one place to any other place or places within the same county, riding, parts, or division, or within the same city or borough, or within any place sharing in the election for such city or borough, but so as that no such adjourned court shall be held after the 25th day of October in any year ; and every such barrister shall liave power to administer an oath (or in the case of a (r) Rex V. Harris,* 7 C. & P. 235, post, p. G71. Reg. v. Dodsworth,'' 8 C. & P. 218, posf, p. 672. Reg. V. Irving, 2 M. & Rob. 75, note («r), post, p. 762. («) Althougli the statute does not expressly make the falsely taking this oath either per- jury or a misdemeanor, yet it is conceived that it would be a misdemeanor at common law. See Rex v. De Beauvoir,= 7 C. & P. 17, posf, p. 726. » Eug. Com. Law Reps, xixii. 503. b lb. xxxiv. 360. " lb. xxxii. 422. »t)14 OF PERJURY, ETC., BY STATUTES. [bOOK V. Quaker or Moravian, *an affirmation) to all persons making objection to the insertion or omission of any name in any such lists as aforesaid, and to all persons objected to, or claiming to be inserted in any of such lists, or claiming to have any mistake corrected or any omission sup- plied in any such lists, and to all witnesses who may be tendered on cither side, and that, if any person taking any oath or making any affirmation under this act, shall wilfully swear or affirm falsely, such person shall be deemed guilty of perjury, and shall be punished accord- 1 & 2 Vict. The 1 & 2 Vict. c. 48, entitled "an act to amend the laws relating to p ^^' , the qualification of members to serve in parliament," after providing clarations by sec. 3, that candidates at elections shall make and subscribe the de- by mem- chiration therein specified, and by sec. 6, that every person returned as Parlia- a member shall make and subscribe the declaration therein mentioned; inoat. by sec. 7, enacts, that <'acy person who shall make and subscribe any such declaration as aforesaid, or who shall sign and deliver in any such paper as aforesaid, knowing the same to be untrue in any material par- ticular, shall be deemed guilty of a misdemeanor." •1 & 5 Vict. The 4 & 5 Vict. c. 58 entitled " an act to amend the law for the trial Per'ur*^'^" ^^ controverted elections, by sec. 75, enacts, "that where in this act before anything is required to be verified on oath to the House of Commons, oioction j^ gjj^jj j^g lawful for the clerk or clerk assistant of the House of Com- commit- 1 <• 1 m ^ • p 1 tees. mons to administer an oath for that purpose, or an affidavit tor such purpose may lawfully be sworn before any justice of the peace or mas- ter of the high Court of Chancery." By sec. 76, "every person who shall wilfully give any false evidence before the House of Commons, or any committee or examiner of re- cognizances, under the provisions of this act, or who shall wilfully swear falsely in any affidavit authorized by this act to be taken, shall, on conviction thereof, be liable to the penalties of wilful and corrupt per- jury." 6 & 7 AVm, The Marriage Act, 6 & 7 "Wm. 4, e. 85, s. 38, enacts, that " every 4, c. 85. person who shall knowingly and wilfully make any false declaration, to'mani^ or sign any false notice or certificate required by this act, for the pur- ages. pose of procuring any marriage, shall suffer the penalties of per- jury."(») Perjury by The 6 Geo. 4, c. 16, entitled " an act for amending the laws relating bankrupts jq bankruptcy," enacts, by sec. 99, "that any bankrupt or other person persons ex- who shall, in any examination before the commissioners, or in any affi- amined be-Javit or deposition authorised or directed by the present, or any act mi'Tsionors hereby repealed, wilfully and corruptly swear falsely, being convicted of bank- thereof, shall suffer the pains and penalties in force against wilful and rupt. corrupt perjury J and where any oath is hereby directed or required to be taken or administered, or affidavit to be made by or to any party, such parly, if a Quaker, shall or may make solemn affirmation, and such Qaaker shall incur such danger or penalty for refusing to make *615 such solemn affirmation in such ^matters, when thereto required, as is (t) Soo Reg. V. Thornhill, jt?os<, p. 647. (u) Tlie 3 Geo. 4, c. 75, s. 10, contained a clause makine;: persons wilfully swearing any false oath in order to procure a marriage license, guilty of perjury, but that clause seems to be repealed by the 4 Geo. 4, c. 17, which is repealed by the 4 Geo. 4, c. 76, s. 1, and that act contains no provision making such false swearing perjury, but by sec. 23, provides that where a marriage is procured by false swearing, that party may be caused to forfeit the property obtained thereby in the manner therein provided. CHAP. I.] OF PERJURY, ETC., BY STATUTES. 615 hereby provided against person^i refusing to be sworn ; and all Quakers who shall in any such affirmation knowingly and wilfully affirm falsely, shall suffer the same penalties as are provided against persons guilty of wilful and corrupt perjury j and all persons before whom oaths or affidavits arc hereby directed to be made, are respectively empowered to administer the same, and also such solemn affirmation as afore- said. "(f) The 7 Geo. 4, c. 57, entitled " an act to amend and consolidate the Perjury \>y laws for the relief of insolvent debtors in England, enacts, by sec. 71 >ns"'l*cnt (Icuturs. " that if any prisoner who shall apply for his or her discharge under the provisions of this act, or any other person taking an oath under the provisions of this act, shall wilfully forswear or perjure himself or her- .self, in any oath to be taken under this act, and shall be lawfully con- victed thereof, he or she so oflPending, shall suffer such punishment as may by law be inflicted on persons convicted of wilful and corrupt per- jury; and that in all cases wherein by this act an oath is required, the solemn affirmation of any person, being a Quaker, shall and may be accepted and taken in lieu thereof; and that every person making such affirmation, who shall be convicted of wilful false affirmation, shall incur and suffer such and the same penalties as are inflicted and imposed upon persons convicted of wilful and corrupt perjury. "f The 1 & 2 Vict. c. 110, contains in sec. 100 a similar provision. The 5 & 6 AVm. 4, c. G'2, which was passed for the purpose of abol-r* y or make such oath, affirmation, or affidavit shall in lieu thereof make acts as to and subscribe a declaration to the same effect ; and such declaration pawnbro- shall be made and subscribed at the same time, and on the same occa- sion, and in the presence of the same person or persons, as the oath, affirmation, or affidavit in lieu whereof it shall be made and subscribed would by the act or acts directing or requiring the same to be directed or required to be taken or made ; and all and every the enactments, provisions, and penalties, contained in or imposed by any such act or Penalties acts, as to any oath, affirmation, or affidavit thereby directed or required '^^^^l^g^^'^ to be taken or made, shall extend and apply to any declaration in lieu to apply to thereof, as well and in the same manner as if the same were herein '\'^'^'"'"'^- ' 1 • 1 /. T »i tions. expressly enacted with reterence thoreto. Sec. 13, reciting that "a practice has prevailed of administering and Justice? nrc receiving oath and affidavits voluntarily taken and made in matters not""''.'" D ..... . . minister the subject of any judicial inquiry, nor in anywise pending or at issue oath?, &c. before the justice of the peace, or other person by whom such oaths or*^°"''\'"S affidavits have been administered or received," and that " doubts have whereof arisen whether or not such proceeding is illegal, for the more effectual *li<^y ^f*^'? suppression of such practice and removing such doubts," enacts, " that "i'^;|"ijy gt^- from and after the commencement of this act, it shall not be lawful for tuto. any justice of the peace or other person to administer, or cause or allow to be administered, or to receive, or cause or allow to be received, any oath, affidavit, or solemn affirmation touching any matter or thing whereof such justice or other person hath not jurisdiction or cognizance by some statute in force at the time being :(rf) provided always, that Proviso, nothing herein contained shall be construed to extend to any oath, affi- davit, or solemn affirmation before any justice in any matter or thing touching the preservation of the peace, or the prosecution, trial, or pun- ishment of offences, or touching any proceedings before cither of the houses of parliament or any committee thereof respectively, nor to any oath, affidavit, or affirmation which may be required by the laws of any foreign country to *give validity to instruments in writing designed to *618 be used in such foreign countries respectively." (a) Sec Reg. v. Nott,» 1 C. & Mars. 288, post, p. G73. » Eng, Com. Law Rep?, xli. IGl. 618 OF PERJURY, ETC., BY STATUTES. [bOOK V. Doclaration By sec. 14, " in any case in which it has been the usual practice of fw ^oaiiil'"^ the Bank of England to receive afl&davits on oath to prove the death of and affida- any proprietor of any stocks or funds transferable there, or to identify '"''i'"'®,", the person of any such proprietor, or to remove any other impediment Bank of to the transfer of any such stocks or funds, or relating to the loss, muti- England on jg^fjQjri^ or defacement of any bank note or bank post bill, no such oath ofstouk. or affidavit shall in future be required to be taken or made, but in lieu thereof the person who might have been required to take or make such oath or affidavit shall make and subscribe a declaration to the same effijct as such oath or affidavit." By sec. 15, declarations are substituted in lieu of the oaths required by the 5 Geo. 2, c. 7, " an act for the more easy recovery of debts in his majesty's plantations and colonies in America," and the 54 Geo. 3, c. 15, << an act for the more easy recovery of debts in his majesty's colony of New South Wales." Doclara- By sec. 16, <'it shall and may be lawful to and for any attesting *'°".'" „ witness to the execution of any will or codicil, deed, or instrument in writing suf- . . •' ' ' ■/•I ficient to Writing, and to and for any other competent person, to verity and prove exe- prove the signing, sealing, publication, or delivery of any such will, any will, codicil, deed, or instrument in writing, by such declaration in writing codicil, &c. made as aforesaid, and every such justice, notary, or other officer shall be and is hereby authorized and empowered to administer or receive such declaration." Suits on be- By sec. 17, " in all suits now depending or hereafter to be brought half of his Jq jjjjy court of law or equity by or in behalf of his majesty, his heirs be proved ^^^ successors, in an}' of his said majesty's territories, plantations, colo- by declara- nies, possessions, or dependencies, for or relating to any debt or account, that his majesty, his heirs and successors, shall and may prove his and their debts and accounts, and examine his or their witness or witnesses by declaration, in like manner as any subject or subjects is or are em- powered, or may do by this present act." Voluntary Sec. 18, reciting that " it may be necessary and proper in any cases declaration ^^^ herein specified to require confirmation of written instruments or in the form ^ /./.i, <.i •j'li i of the sche- allegations, or proof of debts, or of the execution of deeds or other mat- dule may ters," enacts, that "it shall and may be lawful for any justice of the be taken. . ... peace, notary public, or other officer now by law authorized to adminis- ter an oath, to take and receive the declaration of any person voluntarily Making a making the same before him in the form in the schedule to this act false decla- annexed; and if any declaration so made shall be false or untrue in misde- any material particular, the person wilfully making such false declara- meanor. tion shall be deemed guilty of a misdemeanor." (w) Persons By sec. 21, '<■ in any case where a declaration is substituted for an oath rr^'"/ under the authority of this act, or by virtue of any power or authority- rations hereby given, or directed and authorized to be made and subscribed un- deemed (Jer the authority of this act, or by virtue of any power hereby given, misde- ^^J person who shall wilfully and corruptly *make and subscribe any meanor. such declaration, knowing the same to be untrue in any material parti- *619 cular, shall be guilty of a misdemeanor." (?(•) By sec. 19, the same fees are payable on declarations as on the oaths, in lieu of which they are made. By sec. 19, the declarations is to be in the form following: — " I, A. B., do solemnly and sincerely declare, that and I make this solemn declaration conscien- tiously believing the same to be true, and by virtue of the provisions of an act made and passed in the year of the reign of his present majesty, entitled an act," l_here insert the title of this act.'] CHAP. I.] OF PERJURY, ETC., BY STATUTES. 619 By sec. 22, the act commenced on the 1st October, 1835.(.t) There are also some statutes of limited and local operation, which Perjury iiy contain enactments respecting perjury, a few of which may be briefly ll^^l^^^^^i^ noticed. The 11 Geo. 1, c. 18, s. 3, relates to false oaths taken at clec-iucal operu- tions for the city of London ; the 44 Geo. 3, c. 60, s. 4, to perjury at^ion. elections for Aylesbury; the 47 Geo. 3, sess. 2, c. 109, s. 123 (local act) to perjury under the Dublin Improvement Act; the 47 Geo. 3, sess. 2, c. 68, s. 149, 56 Geo. 3, c. 21, s. 49, and 56 Geo. 3, c. 78, s. 50, (local acts] relate to false oaths taken in the course of the vending, admeasurement, &c., oi coals in London, and certain places in the neigh- bouring counties; and the 54 Geo. 3, c. 99, s. 16, (local act) to false oaths taken in respect of bread sold in London, or within the bills of mortality. These statutes, and others of a similar kind, cither provide that the offenders shall be punishable under the 5 Eliz. c. 9, and the 2 Geo. 2, c. 25, s. 2, or (which is more generally the case) enact, " that they shall be subject and liable to the pains and penalties, which per- sons convicted of wilful and corrupt perjury are subject and liable to." With respect to the first of the statutes above set forth, namely the Construc- 5 Eliz. c. 9, as it is but little resorted to at the present time, on account *'"".°'^ ^^^ of prosecutions upon it being more difficult than at the common law ; and as it did not alter the nature of the offence, but merely enlarged the punishment,(y) a brief statement of some of the principal points decided upon its construction will probably be deemed sufficient. In many instances an indictment will lie at common law, when it will not lie upon this statute. Thus where a witness for the king swears falsely, he cannot be indicted on the statute. (^2) It has been adjudged that a man cannot be guilty of perjury within this statute, in any case wherein he may not possibly be guilty of subornation of perjury within it; on the ground that it is reasonable to give the whole statute the same construction ; and that it cannot well be intended that the makers of it meant to extend its purview farther as to perjury, which they appear to have considered as the less crime, than to subornation of perjury, which they seem to have esteemed the greater : and, therefore, since the clause concerning subornation of per- jury, mentioning only matters depending by writ, bill, plaint, or infor- mation, concerning hereditaments, goods, debts, or damages, &c., does not extend to perjury on an indictment or criminal information; the clause concerning perjury, though penned in more general words, has been adjudged to come under the like restriction. («) And it has also been resolved, that as the clause concerning subornation of perjury relates only to perjury by icitncsses, that concerning perjury extends to no other perjury than that of a *icitness; and, therefore, not to perjury *G20 in an answer in Chancery; or in swearing the peace against a man; or in a presentment by a homager in a court baron, or in a wager of law, or in swearing before commissioners of the king's title to lands. (i) And by the opinions of some, a false affidavit against a man, in a court of (.c) The number of statutes, which contaiu clauses making persons giving false evidence, making false affidavits, &c., either liable to the punishment of perjury or guilty of a mis- demeanor, is so large that it is conceived they would occupy more space than the infre- qucncy of the occasions, on which it may be necessary to consult Ihem, warrants devoting to their insertion ; all of them, therefore, have not been inserted. 0. .S. G. (i/) Buxton V. Gouch, 3 .Salk, 269. (z) Id. ibid. (a) Bac. Ab. tit. Perjury, (B). 1 Hawk. P. C. c. G9, s. 19. (6) 1 Hawk. P. C. c. 69, s. 20. Bac. Ab. tit. Perjury, (B). 620 OF PERJURY, ETC. — INDICTMENT. [BOOK V. justice, is not within the statute. (f) But it is observed that if such affidavit be by a third person, and rchite to a cause depending in suit, before the court, and either of the parties in variance be grieved, hind- dered, or molested, in respect of such cause, by reason of the perjury, it maybe strongly argued that it is within the purview of the statute. ((?) It seems to be the better opinion that a false oath before the sheriff on a writ of inquiry of damages, is within the statute. (e) It has been collected from the clause giving an action to the party grieved, that no false oath is within the statute, which does not give some person a just cause of complaint; and, therefore, that if the thing sworn be true, though it be not known by him that swears it to be so, the oath is not within the statute, because it gives no good ground of complaint to the party, who would take advantage of another's want of sufficient evidence to make out the justice of the cause. (/) And upon the same ground no false oath can be within the statute, unless the party against whom it was sworn suffered some disadvantage by it : therefore, in every prosecution on the statute, it is necessary to set forth the record wherein the perjury is supposed to have been committed, and to prove at the trial that there is such a record, either by actually producing it, or by an attested copy ; and it is necessary not only to set forth in the pleadings the point wherein the false oath was taken, but to show also how it conduced to the proof or disproof of the matter in question. ( (7) And if an action on the statute be brought by more than one, it is necessary to show how the perjury was prejudicial to each of the plaintiffs. (A) But it seems that a perjury, which tends only to aggravate or extenuate the damages, is as much within the statute as a perjury that goes directly to the point in issue; and that perjury com- mitted in a cause wherein an erroneous judgment is given, is a good ground of a prosecution upon the statute till the judgment be re- versed. ({) Indict- It has been holden that every indictment or action upon this statute ment on the ^^gi exactly pursue the words of it ; and, therefore, if it allege that the defendant deposed such a matter /also et deceptive, or /also et cor- riiptc, or /also et voluntarie, without saying voluntarie et corrupte, it is not good, though it conclude that sic voluntarium et corruptum commisit pei'juriam contra /orniam statuti, 8/-C. Also it is said to be necessary expressly to show that the defendant was sworn ; and that it is not sufficient to say that facto per se sacra evangelio dep)osutt. But *621 there is no need to *show whether the party took the false oath through the subornation of another, or of his own act, though the words of the statute are, ^^1/ persons hy subornation, &c., or their own act, &c., shall commit wilful j^^rj^irt/ ;" for there being no medium between the branches of this distinction, they seem to be put in ex ahundanti, and (c) 2 Roll. Ab. 11. 1 Roll 19. 3 Keb. 345. (d) 1 Hawk. P. C. c. 69, s. 21. («) Bac. Ab. tit. Perjunj, (B). 1 Hawk. P. C. c. 69, s. 21. (/) 1 Hawk. P. C. c. G9, s. 22. Bac. Ab. tit. Perjury, (B). We have seen that this is otherwise at common law. Ante, p. 597. (g) Bac. Ab. tit. Perjury (B). 1 Hawk. P. C. c. 69, s. 23. (A) Id. ibid. (?) 1 Hawk. P. 0. c. 69, s. 23. Bac. Ab. tit. Perjury, (B). In 1 Hawk. P. C. c. 69, s. 4, there is a qu. whether perjury in a court, whose proceedings are afterwards reversed by error, may not still be punished as perjury, notwithstanding such reversal? See Reg. v. Meek, ante, p. 603. CHAP. I.] OF PERJURY, ETC. — INDICTMENT. 621 to express no more than llie law would have implied, and therefore, operate nothing. (J) It seems that if perjury be coinraitted that is witliin this statute, but the indictment concludes not contra formam statuli, yet it is a good indictment at common law, but not to bring the offender within the cor- poral punishment of the statute." (/.•) For the purpose of facilitating prosecutions for perjury, and of pre- Facilities venting great offenders from escaping punishment by reason of the ex- "^'y^^'^.^' pense attending such prosecutions, the 23 Geo. 2, c. 11, s. 3, enacts, ii„ii.s lor << that it shall and may be lawful to and for any of his majesty's justices l\'''J;">'- , of assize, or nisi j) fins, or general gaol delivery, or of any of the great,.' j[^ y[ '/_ sessions of the principality of "Wales, or of the counties palatine; and Thf jmlgcs they are hereby authorized (sitting the court, or within twenty-four ^.^^^^'j-^l'^y' hours after) to direct any person examined as a witness upon any trial direct imy before him or them, to be prosecuted for the said offence of perjury, in j',l*",^ogecu- case there shall appear to him or them a reasonable cause for such pro- ted for per- secution, and that it shall appear to him or them proper so to do; andJ"''.y' "'"^ , 11-1 assign to assign the party injured, or other person undertakmg such prosecu- counsel, tion, coun,sel, who shall and are hereby required to do their duty with- Ac. out any fee, gratuity, or reward for the same ; and every such prosecu- tion, so directed as aforesaid, shall be carried on without payment of any tax or duty, and without payment of any fees in court, or to any officer of the court who might otherwise claim or demand the same. And the clerk of assize or his associate or prothonotary, or other proper officer of the court, (who shall be attending when such prosecution is directed) shall, and is hereby required, without any fee or reward, to give the party injured, or other person undertaking such prosecution, a certificate of the same being directed, together with the names of the counsel assigned him by the court, which certilTcate shall in all cases be deemed sufficient proof of such prosecution having been directed as aforesaid, provided that no such direction or certificate shall be given in evidence upon any trial to be had against any person upon a prosecu- tion so directed as aforesaid." The same statute also makes provisions for the more easy framing of Proviyion indictments for perjury and subornation of perjury. The first section ^"^^.^ ^^^^ reciting that by reason of the difficulties attending prosecutions for per- framing uf jury and subornation of perjury, those heinous crimes had frequently gone unpunished, enacts, " that in every information or indictment to be prosecuted against any person for wilful and corrupt perjury, it shall he ^vfficiait to set forth the substance of the offence chanjcd vpon the dc- ft ndant, and hy ichat court, or he/ore ichom the oath teas taken (aver- ring such court, or person or persons to have a competent authority to administer the same) together Avilh the proper averment or averments to falsify the matter or matters, wherein the perjury or perjuries is or are assigned, without setting "forth the bill, answer, information, indict- *C22 ment, declaration, or any part of any record or proceeding, either in law or in equity, other than as aforesaid, and without setting forth the com- mission or authority of the court, or person or persons before whom the perjury was committed." And the second section enacts, << that in every information or indictment for subornation of perjury, or for corrupt (./) 1 Hawk. P. C. c. 69, ss. 17, 18. Bnc. Ab. tit. rerjuri/, (B), and the authorities there citi'd. (A-) 2 IIulc, 191, 192. See this case cited, vol. 1, p. 655. , indict- ments. 622 OF PERJURY, ETC. — INDICTMENT. [bOOK V. bargaining or contracting with others to commit wilful and corrupt per- jury, it f^hall be sufficient to set forth the substance of the oflFence charged upon the defendant, without setting forth the bill, answer, in- formation, indictment, declaration, or any part of any record or pro- ceeding, either in law or equity, and without setting forth the commis- sion or authority of the court, or person or persons before whom the perjiiry was committed, or was agreed or promised to be committed. "f Theprovi- It was lamented by a very learned judge, that the party prosecuting T"^t°^t for perjury, did not more frequently avail himself of this excellent law, -liouldbe made for the purpose of obviating difficulties in drawing the indict- attended tojxients.(/) In the case in which this remark was made, the commission indict- ° ^^ *^^ Admiralty session had been unnecessarily set forth in the indict- ments, ment ; and it was admitted that where a prosecutor undertakes to set out in the indictment more of the proceedings than he need under this statute, he must set them forth correctly : but it was holden that the commission at the Admiralty session being set forth as directed to A., B., and C, and others not named, of which number A., B., and C., amongst others, should uhcai/s he one, the court must take it to mean that if either of the persons, named of the quorum, were present, it would be sufficient.^)?;-) Several It has been holden, on motion in arrest of judgment, that several persons not pgj.gQjjg cannot be joined in one indictment for perjury, the crime being in an in- in its nature several. (?;) But this does not apply to subornation of per- dictment iurv.fo") lor 'DGriury. . ' „ With respect to the venue in an indictment for perjury it may be briefly observed that the parish or place, unless used as giving some specific local description, will not be material, and that it will be suffi- cient to show the offence committed any where within the county. But it seems to be necessary that a place should be stated in the indictment to which a venue may be properly awarded ; and an indictment was holden to be bad for laying the offence to have been committed <;eueral, Variances, j^g made with great accuracy. An indictment for perjury stating a bill of Middlesex as "issuinn; out of the office of the chief clerk assi";ned to inrol pleas in the court, &c./' has been holden to be bad. (a) And a mis- recital of the judgment-roll of the cause, at the trial of which the per- jury is alleged to have been committed, is also fatal. (6) And if the indictment state that at the assizes, holden before justices assigned to take the said assizes, the oath was taken before A. B., one of the said justices, the said justice then and there having power, &c., it will be a fatal variance if the oath was administered when the judge was sitting under the commission of oyer and terminer and gaol delivery. (c) And where an indictment for perjury, committed in a written deposition before a magistrate, in which deposition a word necessary to the sense had been omitted, set out the substance and effect of the deposition, and supplied a word which the sense required, as though it were actually in the deposition, the variance was holden to be fatal. (f?) And when a count in an indictment undertakes to set out continuously the sub- stance and effect of what the defendant swore upon his examination, it must be proved that in substance and effect he swore the whole of what is set out, though several distinct assignments of perjury are made thereon, (e)"!" False state- Where perjury is assigned upon several parts of an affidavit, and such whether in p^rts are set out continuously, it is no variance if such parts are sepa- an affidavit rated by other intervening matter, provided what intervenes does not dence^may ^^^3^ ^^^ effect of what is set out. An indictment for perjury alleged to be set out have been committed in an affidavit, set out various matters deposed to continu- jjg •£ ^i^gy j^j^^ been continuous in the affidavit, but on the production of *625 the affidavit, it appeared that the parts set ^'out in the indictment were authority of Purcell v. Macnamara, 9 East, 156, where, in an action for malicious prosecu- tion, it was held to be no variance that the record of acquittal stated the acquittal to have been on a different day from that laid in the declaration, as the day named in the declara- tion was not laid as part of the description of the record of acquittal. [a) Rex V. Scole, cor. Kenyon, C. J., Peake, N. P. Pv. 112. [b) Rex V. Eden, cor. Kenyon, C. J., 1 Esp. R. 97. The indictment alleged that the cause came on to be tried before Lloyd, Lord Kenyon, &c., William Jones being associated, &c. ; and from the judgment roll it appcai'ed that Roger Kenyon was associated, &.c. ; and the vari- ance was held to be fatal. [c) Rex V. Lincoln, Mich. T. 1820, MS. Bayley J., and Russ & Ry. 421. (rf) Rex V. Taylor, cor. EUenborough, C. J., 1 Campb. 104. The deposition should have been set out literally, and the meaning explained by an innuendo. The indictment stated that the defendant went before a justice of the peace, and swore in substance to the effect following, that is to say, &c., and part of the deposition so set forth, was that a person therein named assaulted the deponent with an umbrella, and, at the same time, threatened to shoot her with a pistol; but when the deposition was produced it-appeared that after stating the assault with the umbrella, it proceeded thus, " and at the same threatened to shoot," &c., omitting the word time. (e) Rex V. Leefe, cor. EUenborough, C. J., 2 Camp. 134, post, note {h). It appears, how- ever, that in Reg. v. Rhodes and another, 2 Lord Raym. 886, it was holden, upon an indict- ment containing only one count, that although all the assignments of perjurj^ but one were bad, judgment should not be arrested. And see Compagnon and wife v. Martin, 2 Black. R. 790. f {In a prosecution for perjury, if the indictment sets forth that a " warrant for debt by account for rent," was sued out by the defendant — and the warrant given in evidence shows that the claim was not for reut, but for other things ; this is such a variance as to exclude the warrant from being given in evidence. 2 Virginia Cases, 323, Commonwealth v. Hick- man.} CHAP. I.] OF PERJURY, ETC. — INDICTMENT. 625 not continuous but were separated by the introduction of other matter, ""s'y, It was contended that there was clearly a variance between the affidavit ,j,^^^^ i„. set out in the indictment and that given in the evidence. The proper tc-rvcne, if mode of stating it was, " in one part whereof the defendant swore such j"''u " v"ry and such things, and in another part whereof be swore certain other their effect, things." In actions or indictments for libel such a variance would clearly be fatal. Abbott, C. J., " In actions or indictments for libel the tenor must be set out; in indictments for perjury it is sufficient to state the substance and cfiPect of the false oath; the variance pointed out is therefore immaterial. "(/) And the same has been held as to evidence given upon a trial. An indictment for perjury committed on the trial of an action for assault and battery, charged the defendant with having sworn that the plaintift' spit in the defendant's face before the defendant struck him, and that he, the defendant in the indictment, had not said certain words, and assigned perjury on both statements. The evidence given by the defendant on the former trial contained all the matter charged as perjury, but other matter intervened between the statement as to the spitting and that as to the words. It was objected that this was a variance, as the evidence charged as perjury in the indictment appeared to have been given continuously; but Abbott, C. J., held it was immaterial, as what intervened did not vary the effi^ct of what was stated. (,7) In an indictment for perjury committed before a select committee of-'^Iodoof the House of Commons, it was averred that the election was held by eiyy't^fn virtue of a certain precept of the high sheriff, by him duly issued to the returns, bailiff of the borough of New Malton ; and it was holden that this was not matter of description, and that the production of a precept, which in fact issued to the bailiff of the borough of New Malton, though directed to the bailiff of the borough of Malton, was sufficient; but the indictment also stated that A. and B. were returned to serve as bur- gesses for the said borough of New Malton ; and this was considered as a description of the indenture of return, in which the borough was described as the borough of Malton, and the variance was holden to bo fatal. (A) But where an information for perjury committed before a select Commit- committee of the House of Commons, stated that the committee was ^r® , ,,.,.„ . House of chosen to try and determine the merits of an election, and that the com- Commons. mittec were sworn "to try the merits of the petition referred to them;" it was held that the committee was well described, although by the 10 Geo. 3, c. 16, s. 13, they were to be a committee "to try and deter- mine the merits of the return or election." (A An indictment may be supported upon an answer in a coui't of equity, ProcoeJ- thouiih the answer is not correctly entitled and the name of one of the '"5^ '" o •/ (Jluincorv. parties be mistaken. Thus where an indictment alleged that Francis Cavendish Aberdeen and others exhibited their bill in the I^xchcquer, &c. and on the production of the bill, the complainants on the face of it pur- ported to be J. C. Mcrdeen, and others, it was holden that this was not a variance, and that it was competent to the prosecutor to prove, by other means than *by the bill itself, the allegation that Francis Cavcn- *G2G (f) Rex V. Callanan,» G B. & C. 102. \g) Rex V. Solomon,'' R. & M. N. P. R. 252. \h) Rex 1^. Lcefe, 2 Cnmpb. 134. (?) Rex v. Dunn,' 1 Dowl. & R. 10. * Eng. Com. Law Reps. xiii. 102. ^ lb. xxi. 430. "^ lb. xvi. 11. 626 OF PERJURY, ETC. — INDICTMENT. [book V. dish Aberdeen did, in fact, exhibit this bill (J) And it was further holden not to be a variance, although after the allegation in question, and after setting out such parts of the bill as were necessary, these words were added, " as appears by the said bill, &c., filed of record j" on the ground that these words referred to the last antecedent, and could not be considered as incorporated with the prefatory allegation that Francis Cavendish Aberdeen exhibited his bill.(/f) And in an indictment for perjury committed in an answer to a bill in Chancery where the bill was stated to have been filed by A. against B. (the de- fendant in the indictment) and another, though in fact it was filed against B., C, and D., the variance was holden not to be fatal ;■(• the perjury being assigned on a part of the answer which was material between A. and B.(^) So where an indictment for perjury in answer to a bill in chancery described the bill as exhibited against three persons only, viz., A., B., and C , and the bill when produced appeared to be against A., B., and D; Abbott, C. J., held that this was not a fatal variance, and that the bill produced must be considered as the same described in the indictment. If the indictment had professed to set forth the title of the bill, such a variance would have been fatal, but the bill was sub- Ecclesias- stantially described, and that was sufficient. (?»,) So if an indictment Court ^^^ pci'jury state that thei'e was a suit depending in the Ecclesiastical Court between W. Peacock and R. Miles, and the proceedings in that court state that the suit was between W. Peacock and R. Miles, the elder; this is no variance. (to) And it has been holden, that though there be two counts in the original proceeding, an averment that an issue came on to be tried is not a variance, (o) And a variance between the affidavit actually sworn, and in which the perjury was charged to have been committed, and the affidavit stated in the indictment, by leaving out the letter s in the word tinder- stood, was holden to be immaterial. (p) In a subsequent ease, the defendant was tried on an indictment for perjury, committed in giving evidence as the prosecutor of an indictment against A. for an assault; and it appeared that the indictment for the assault charged, that tTie prosecutor had received an injury, "ichci-ebi/ his life was greatly despaired of;" but that in the indictmant iox perjury, the indictment for the assaidt, being introduced in these words <' which indictment was presented in manner and form folloioing, that is to say,'"' and then {j) Rex V. Roper,* cor. Ellenborough, C. J., 6 M. & S. 327. 1 Stark. R. 518. {k) Id. ibid. \l) Rex V. Benson, cor. Ellenborough, C. J. 2 Camj^b. 508. (m) Bex V. Powell,'' R. & M. N. P. R. 101. (ra) Rex?>. Bailey,"^ 7 C. & P. 264, Williams, J. See Rex v. Peace,^ 3 B. & A. 579. (o) Peake's case, N. P. C. 37. (;)) Beech's case, 1 Leach, 133. The inspection of a record is within the peculiar province of the court; and, therefore, if a doubt arise as to any word upon a record, the court and not the jury must resolve that doubt. By Lord Ellenborough, C. J., in Rex v. Hucks,^ 1 Stark. R. 521. f [An indictment for perjury in swearing to an answer in Chancery, should set out to which bill and answer. Lodgers case, 2 Grattan, 579. Commonwealth v. Warden, 10 Metcalf, 406. In the trial of an indictment for perjury in an answer to a bill of discovery, the certificate of the magistrate before whom the answer was sworn to, on proof of the handwriting of his signature, is competent and sufficient prima facie evidence of the administration of the oath to the defendant. Commonwealth v. Warden, 10 Metcalf, 40G.] » Eng. Com. Law Reps. ii. 492. ^ lb. xxi. 391. = lb. xxxii. 506. •1 lb. V. 384. • lb. ii. 497. CHAP. I.] OF PERJURY, ETC. — INDICTMENT. 626 set forth ut length, did not recite the above-nicntinucd passage correctly, but omitted the word '^ (Icq)aire(I ;" mpon which the counsel for the defendant admitted that it was not necessary to have recited the indict- ment for the assault; but he contended that the prosecutor, by the words '< in manner and form /olio ic hi (/, that is to say," had undertaken to recite it; and that, having so done, he was bound to set it forth cer- hatim. But the ^learned judge overruled the objection; and said, that *627 the word <' tenor" had so strict and technical a meaning as to make a literal recital necessary; but that by the words " in manner and form following^ that is to say," nothing more was made requisite than a sub- stantial recital ; and that the variance, therefore, in the present case was only nuitter of form, and did not vitiate the indictment. (y) Where an indictment for perjury in setting out the substance and Variance, effect of a bill in equity, to which the defendant put in an answer, im^l gtan"e"and upon which the perjury was assigned, stated an agreement between the efifect. prosecutor and defendant concerning houses, and upon the original bill being read it appeared that the word was « house" in the singular number; Abbott, C. J., held that, although the indictment professed to describe the substance and effect of the bill, and not to set out the tenor, yet this was a difference in substance, and consequently a fatal variance. (r) Where an indictment for perjury stated that on an inquiry before two justices of the peace on an information under an excise statute, it be- came a material question where a certain individual was at 4 A. M., on the 2d of July, and that the defendant swore she had been in his com- pany from two in the same morning until four, and on the trial for perjury the evidence was that she had said she had been in his company from eleven until half-past four; Parke, J., doubted whether the evi- dence supported the allegation, but on conference with Bolland, B., he inclined to think it did.(.s) If an indictment charge that the defendant swore in substance and Motlo of effect in a deposition, and the deposition he made jointly by him and ^jj^^[if^^ his wife, his statement following that of his wife, it will not be a sivorn in » variance. The indictment stated that upon a certain information upon J""?^ '^'^I''*" SltlODa oath, entitled " the information," &c., the defendant wilfully deposed in substance and to the effect following : " the defendant (meaning C. D.) I am certain is one of the persons that assaulted and ill-treated my wife," &c. The information began, " The information and complaint of Jane, the wife of C. E. Grindall, and of the said C E. Grindall, made on oath," &c. "And first, the said J. Grindall for herself saith that the defendant is one of the persons who assisted W. J. S. and others in handcuffing and otherwise assaulting me on, &c." (Signed) ' lb. xxxviii. 201. " lb. xvii. 294. CHAP. I.] OF PERJURY, ETC. — INDICTMENT. 628 commissiou as there used was intended to denote tbc comniissiou itself, it would follow that the several meetings took place before any coni- uiission issued ; but that is impossible, because in that case the peti- tioner could not have made his declaration in the hearing of the said assignee. Then, if thai cannot be the meaning* of the word com mis- *629 sion, we must construe it in the other sense, which it is capable of bear- ing, namely, as denoting the persons to whom the authority was given; and if it be so constructed, there was no variance between the petition set forth in the indictment and that which was given in evidence ; the consc(juence is, that there must be judgment for the crown. "(«) Tiic 9 Cleo. 4, c. 15, s. 1, authorizes the court to cause the record " in Tlio court any indictment or information for any misdemeanor, when any variance '"''^' "^'^'^ J ..... . . variances shall appear between any matter in writing or in print produced inievi- to l>o n- dencc, and the recital or setting forth thereof upon the record" to be 'j'""'^!'''^""' amended : but it has been held that such amendment ought to be made 000,4,0. very sparingly in the case of perjury. Thus where a prisoner was in- 1^- '>"' 'I'is dieted for perjury committed in an affidavit made for the purpose of y„j,i,t j,, jj^ setting aside judgment entered uj) on a warrant of attorney, and the ^pini'igly indictment charged that the defendant made his Avarrant of attorney, ^^^ and that <' afterwards, to wit, in or as of Trinity term," in the 5 Wm.4, judgment was entered up on the said warrant of attorney; and in the margin of the copy of the record when produced was entered " June the 26th, 5 Wm. 4," pursuant to rule II. T., 4 Wm. 4, s. 3. It was ob- jected that the indictment was bad, as every averment in an indictment must be positive and not in the alternative. It was answered that the words <'in or" might be rejected, or the indictment might be amended under tlie 9 Geo. 4, c. 15. But Pattcson, J., after consulting Littledale, J., held that the judgment was not properly stated, and allhougli this was a recital upon the record, refused to allow the aniendment, as amend- ments ought to be made very sparingly in criminal cases, and the ob- jection to the form of averment " in or as of," furnished a very good reason why the amendment should not be raade.(t') So where an in- dictment for perjury, alleged to have been committed before certain commissioners appointed to examine witness in a chancery suit, alleged that a commission was issued whei'cby Ilobbes, Woodward, Kendall, and Cheek were commanded to examine each of the witnesses upon their oaths, and the commission itself commanded Hobbes, Woodward, Kendall, and Cheek, or any three or two of them, to examine each of the witnesses on oath, and it appeared that the defendant had been sworn before three of the commissioners only ; Coleridge, J., held the variance fatal ; and on being asked to allow an amendment to be made / under the 9 Geo. 4, c. 15 ; Coleridge, J., said, <' I think that I ought not to allow this amendment. I entirely agree with my brother I'at- tcson, that the discretion of the judges, as to amending in criminal cases, ought to be exercised very sparingly. One objection to readily permitting an amendment in an indictment is, that by the amendment a presentment on the oath of the grand jury is altered. I am also un- willing to amend variances, which, by ordinary care in collation, might be avoided. "((f) (w) Rex V. Duflinan.' 4 B. & C. 850. (r) Rex v. Cooke,'' 7 C. & V. 559. {xv) Reg. V. ]Iewins.<^ 9 C. & P. 786. » Eng. Com. Law Rep.-, x. 459. ^ lb. xxxii. 629. <^ lb. xxxviii. 336. 629 OF PERJURY, ETC. — INDICTMENT. [BOOK V. Where an indictment for perjury alleged that the defendant exhibited an affidavit, entitled in the Court of Chancery, "In a suit therein at the suit of the said Commissioners of Charitable Donations and Be- quests," and the affidavit was in fact entitled, " In Chancery, between the Commissioners of Charitable Donations and Bequests, &c.," Lord Denman, C. J., allowed the record to be amended, by striking out the word '< entitled. "(?(,•((') Averment In a case where a complaint having been made ore tenus by a soli- that the citor, before the Chancellor in the Court of Chancery, of an arrest in complaint ., . ii- /. i-t ^ t was heard, returning home alter the hearing ot a cause, the indictment stated that, *c. << at and upon the hearing of the said complaint," the defendant de- *630 pfsed, &c. J and this was holden to be a sufficient *averment that the complaint was lirard.[x^ And it has been holden that an indictment for perjury, assigned on an affidavit sworn before the court, need not state that the affidavit was filed of record, or exhibited to the court, or in any manner used by the party. (^J Before An indictment for perjury may state the trial to have taken place whom ntri- either before the judge, who in fact tried the case, or before the judges allied to before whom it is considered in point of law to have taken place. There- have taken fore an indictment for perjury, stating the oath to have been taken on P ''®' a trial before one judge is good, although the record of the trial names both. The indictment stated that the defendant appeared as a witness on a trial at nisi prius, and was sworn before the Hon. Edward Wiles, but the nisi jyrius record stated in the usual form that the trial was be- fore both the judges, and upon a case reserved, the judges were unani- mously of opinion that the evidence maintained the indictment. (s) So an indictment for perjury on the trial of a cause at the sittings after term, stating the trial to have been before a puisne judge, who in fact tried the cause, is good, although the postea states the trial to have been before the Chief Justice. An indictment for perjury, charged to have been committed on a trial at the sittings after term in Loudon, alleged the trial to have taken place before Littledale, J. ; and on pro- ducing the record it did not appear before whom the trial took place, but the postea stated it to have been before the Lord Chief Justice; in point of fact, however, the trial took place before Littledale, J.; and it was objected that this was a variance : it was answered that there was no reference in the indictment to the record, and no prout patct per re- cordum : it was merely stated that the trial took place before Littledale, J., and that was proved. Lord Tenterden, C. J., "On a trial at the assizes the postea states the trial to have taken place before both jus- tices ; it is considered in law before both, though in fact it is before one only, and I am not aware that the postea is ever made up here dif- ferently when a judge of the court sits for the Chief Justice. I cannot stop the case upon such an objection ; you may have leave to move upon this point in case it shall become necessary. "(a) (wio) Reg. V. Christian,* 1 C. & Mars. 388. (x) Rex v. Aylett, 1 T. R. 70. (y) Rex V. Crossley, 7 T. R. 315. Nor is it necessary to prove such facts. Id. ibid. And see the cases, pout, p. 667. But it is otherwise when the proceeding is under tlie statute of Eliz. Stark. Grim. Plead. 121. And see 3 Stark. Evid. 857, citing Rex v. Taylor, Skin. 403, where it was held that the bare making of the affidavit without producing or issuing it is not sufficient. (z) Rex V. Alford, 1 Leach, 150. See this case, />os^, p. 631. (a) Rex V. Coppard,'' Moo. & M. 118. 3 C. & P. 59. » Eng. Com. Law Reps. xli. 214. ' lb. xiv. 210. CHAP. I.] OF PERJURY, ETC. — INDICTMENT. 630 If an indictment for perjury committed on a trial before the sessions ^ariiiuco in alleges an adjournnieut to have been made by certain justices, and the ^j'^^^^jj **'*' record states it to have been made by other justices, tliis is a variance ; meut of a but tlie defect may be cured by proving that in fact the adjuurnment''.""'"''^''*"^'" was made by the justices named in the indictment. An indictment for perjury on the trial of an indictment for an assault alleged an adjourn- ment to have been made by Const, and A. B., and others their fellows, justices, ifcc. The examined copy of the record of the conviction stated the adjournment to have been made by Const, and E. F., and others, their fellows, justices, &c. It was contended that this was a fatal va- riance; and Abbott, C. J., held that it was; but that the defect might be cured by other evidence, as by calling *some person who could state *G31 that he was present and saw the justices named in the indictment pre- sent on the day in question. (/>) It is sufficient to state in the indictment that the defendant was ditli/ Tho inJict- sworn.ff) In a case where it was averred that he was szt-or/i on //te '"'^"'^ 'J'"f* _^ V ' state that Gospels, and ho appeared to have been sworn according to the custom the dufeud- of his own country, without kissing the book, it was considered as a'!;"'"'''^ . duly sworn fatal variance ; though it was holdcn that the averment was proved by slc. its appearing that he was prevluusli/ sworn in the ordinary mode.((^) An indictment for perjury in a cause tried at the assizes was holdcn good, although it alleged the oath to have been taken before one only of the judges in the commission, and the nisi prius record imported that the trial was before the two judges of assize. (e) An indictment at common law, which charged that the defendant Wilfully "falsely, maliciously, wickedly, and corruptly swore, &c.," was holden ""'^ 1^°'"" sufficiently to imply that the oflfencc was committed wilfullij ;(^f'\ but (h) Rex ('. Bellamy,* R. k M. N. P. R. 171. In order to remedy the defect, a witness from the office of the clerk of the peace produced a minute book, which contained an entry, not drawn up in any formal manner, of the names of the particular justices who were present at the day of adjournment mentioned in the indictment, and amongst whom were all the names mentioncil in the inilictraent : fliesc minutes were made hy a clerk in the same oflice, of the name of Richards, ■whose duty it appeared to be to attend at the quarter sessions, for the pur- pose of making these entries at the time; but Richards was not called as a witness, and there was no evidence to show whether he was present on the particular day farther than the entry itself. In the same book, on the opposite page to the entry already stated, was another, drawn up by the witness who produced the book ; this was in the form of a re- cord, and was in fact a summary of all the names of the justices attending upon the (juarter sessions upon each day during the sessions, but it did not distinguish who was present upon any particular day; amongst these names also were the justices mentioned in this indict- ment. But Abbott, C. J., held that the evidence was not sutlicient to supjily the defect ; the minute made by Richards was not a record, or in the nature of a record, and the entry on the opposite page was insufficient, as it did not give the names of the justices who were pre- sent on the particular day. [c) Rex V. M'Carthur, cor. Kenyon, C. J., Pcake's N. P. C. 155. \d) Rex V. M'Carthur, cor. Kenyon, C. J., Peake's N. P. C. 155. \e) Rex V. Alford, 1 Leach, 150. Hil. T. 1777. MS. Bayley, J. E^tc, B., doubted on the trial wiicther one commissioner of assize alone liad competent authority to administer the oath, and conceived the indictment ought to have alleged the oath to have been taken be- fore both the judges in the commission, but on a case reserved the judges W'ere unanimous that tiie indictment was right. But as to a record in the Crown Court, sec Rex v. Lincoln, ««/(•, p. (;24. In lleg. v. Deman, 2 Ld. Raym. 1221, an exception was taken to an indict- ment; that it stated the trial at which the oath was taken to have been l)cfore the Lord Chief Baron and the associate, hut stated the oath to have been before tlie Chief Baron, without the associate: and also, that the assignment of perjury differed from the oath, be- fore tiic Chief Baron and associate. But the objections were overruled; and the court held that the associate need not be mentioned in every part of the indictment where the Chief Baron was mentioned. (/) As to the offence being wilful, sec ante, p. 597. * Eng. Com. Law Reps. xxi. 406. Vol. II.— 41 631 OF PERJURY, ETC. — INDICTMENT. [BOOK V. it was considered at the same time that, in an indictment on the 5 Eliz. c. 9, the offence must be laid expressly to have been wilfully conimitted.(//) Tho indict- The indictment should avcr that the defendant ^^ wilfully and cor- ^^^\, ruptly" swore, and every count should expressly state that the defen- state that dant was sworn, and the fact of his having been sworn cannot be taken tho defend- ]-,y intendment. The first count stated that the defendant on the trial wilfnlbj of an indictment against J, H., intending to injure J. H., and to cause and cor- him to be wrongfully convicted, appeared as a witness and was sworn, every eoiHit '^"^^ " ^hen and there falsely and maliciously gave false testimony against should aver J. H., by then and there deposing and *giving evidence," &c. The fendant'**'^^'''^ count, the Only one that differed materially from the first, alleged was sworn, that by means of the false testimony in the first count mentioned, J. *632 H. was found guilty; that a rule nid for a new trial was granted; that the defendant intending to hinder the said rule from being made abso- lute came before a commissioner and was sworn, and being so sworn, wick- edly, wilfully, and corruptly did depose, swear, and make aflBdavit in writing, in substance that the evidence which he, J. S., had given on the said trial was true, whereas the evidence which the said J. S. had given on the said trial was not true, but was false in the particulars in the said first count of this inquisition assigned and set forth. The de- fendant having been convicted, a rule was obtained for arresting the judgment, and after argument, Abbott, C. J. delivered the judgment of the court as follows : — " I am of opinion that this rule must be made absolute. As to the first class of counts the objection is that they do not charge that the defendant swore wilfully or corruptly. Every defi- nition of perjury is swearing wilfully and corruptly that which is false. Whether the word maliciously might supply the place of either wilfully or corruptly, it is not necessary to determine, for neither of those words is found in the counts in question, and Cox's case,(^) which has been referred to, proves at all events that such counts are insufficient. I now come to the consideration of the last count. It is in a form per- fectly novel ; it was intended to allege perjury in an afiidavit made in this court. In the ordinary course of pleading, the first step would have been to charge that there had been a trial, and that the defendant was sworn as a witness; the second, that he swore such and such things; the third, that the matter was false, and so on. Here there is no distinct averment that the defendant was sworn as a witness, or of what he swore. But the fact of his having been sworn must be taken by intendment. Were we to do that, as we are desired to do, in support of this indict- ment, we should furnish a precedent for a very loose and irsufiBcient mode of charging a very serious offence, which has always hither been required to be charged with great certainty and particularity. I think that these novel attempts in pleading are not to be encouraged, and that the judgment must be arrested. "(v'j That tho ^^ must appear or be alleged in the indictment that the person by person had whom the oath was administered had competent power to administer (g) Cox's case, 1 Leach, Vl. (/;) Supra, note (ff). (i) Rex V. Stevens,* 5 B. & C. 24G. The 5 Eliz. c. 9, s. 6, ante, p. 604, uses both the words " wilfully and corruptly," and therefore it should seem that both these words must be used in an indictment on that statute. C. S. G. » Eng. Com. Law Reps. si. 216. CHAP. I.] OF PERJURY, ETC. — INDICTMENT. 632 it."j" Thus upon iiu imlictraent for perjury before a justice in swearing ""••'"'"'ty to that T. S. had sworn twelve oaths, wlierc the charge as stated did "Ot ^\',^!' Jj'^l'Jj" import that the oaths were sworn in the county for which the justice acted, Eyre, J., arrested tlie judgment ; because as the charge did not so import, the justice had no jurisdiction to administer the oath in ques- tion to the defendant. (y) Where a statute re(|uircs an act to bo done by justices of the peace Perjury at actinir for a particular division in potty sessiims, an indictment for per- '\^'''*-^'/''''' o t . . ' Kimis uf jury committed before two such justices must allege tliat they were act-justices ing for such division, but need not aver that they were assembled in 'I'-'i"^' f'"" « petty sessions. An indictment for perjury on the ''^hearing of an infor-lii'visl,,,, oi mation for selling beer at improper hours, (a) stated that the proceeding --^ county. was before two justices, but not that they were assembled iu petty ses- *G33 sions, or that they were acting for the division in which the house was situated; and it was held that the indictment was defective for want of an allegation that the justices wore acting for the division in which the house was situated; but it was held not necessary to aver that they were assembled in petty sessions, for that the meeting of the two justices was in itself a petty session. Where an indictment for perjury stated that the prisoner, maliciously Tmlitt- intendino; to subject W. Mortiboy to the punishments of felony and lar-T^r!. 'V , ceny, went before J. C. and II. H., two justices of the peace, and wassli^wiu'; sworn (J. C. and II. II. having competent power, &c.) and deposed jq <■''«* there substance that oa Wednesday last he (the prisoner) was in W. M.'b, charge Peg Alley, and that he (the prisoner) put his hand into his watch fob, ™'i'*e ^'>- and took out a 5^. note to make a bet with W. M., and put it into his ("c^. (j) Rex V. Wood, Exeter, 1723. M.S. Bavley, J. (?) Reg. V. Rawlin.s,' 8 C. , 536.} [An indictment for perjury in taking an oath administered by a clerk of court must show that the oath was sucli as the clerk was authorized to administer. McGragor v. The Slate, 1 Smith, 170. An indictment for perjury, stating that the defendant came before A., a justice, &c., ami then, <&c., was sworn before said A. being such justice, &c., shows with sufficient certainty by whom the oath was adniinistereil. Tin: Slti/i- v. J-Jllixon, 8 IJlackl'. 22.'). Where, in an indictment for perjury, it appeared that the defence set up to a criminal coni- I)laint amounteil to an alibi; that the testimon)'^ of a particular witness who was examined thereon, and whose evidence was alleged to be false, tended to establish this defence ; and it was averred that each and every part of tiie testimony became and was material to the defence: it wa^ held that the materiality of the alleged false testimony was sufficiently stated in the indictment. Commonwralth v. f''<\i/nn, 3 Gushing, 525. In an in;aiiou of terrogatory, and averred that, "upon the examination of the defendant "'=»'^'^''''^''- upou the said interrogatories, it became, and was, material to ascertain the truth of the matters hereinafter alleged to have been sworn to and deposed by the defendant, upon his oath, in answer to the said ninth in- terrogatory ;" it was objected that the averment of materiality was in- Bufficicnt, there being no statement of the alleged perjury being material to the Chancery *suit, or to any (juestion in that suit; and Coleridge, *0-41 J., expressed some doubt whether the averment of materiality was suffi- cient, and would have reserved the point if it had become necessary. (i) And where an indictment for perjury, after alleging that an information '>ooilffl- was exhibited before two magistrates, and that the same information "^* " *^''*'- came on to be heard before M. G. and J. S., two justices, and that '< upon hearing of the said information before the said M. G. and J. S., so being such justices as aforesaid, it became and was material to ascer- tain the truth of the matter hereinafter alleged to have been sworn to, and stated by the said J. S. upon his oath;" it was held, that this aver- ment of materiality was sufficient. (c^ An indictment stated that, on the trial of an action of Meek v. Knight, r.urraston's " it became and was a material question, whether a certain bill of ex-f^fv'- , "" change, bearing date, &c.," (here the bill was described,) << was ac-avcrment.s cepted by the said J. Meek, for the accommodation of the said W. p'''"^'^''""*^- , . . . . . I'v ami 01 Knight, and without valuable consideration to the said J. Meek from tile fal.^ty the said W. Knight ; and whether a certain paper writing or memoran- "' *''<^ ^'•^^' dum, then and there produced, by and in the handwriting of the de- fendant, J. Burrastou, was really and truly executed by the said W. Knight, by affixing his mark thereto, at the time of the makinj of the said bill of exchange. (The indictment then set out the memorandum.) And whether the said memorandum was read over by the said J. Bur- raston to the said W. Knight, at the time of making the said bill of cx- chanije as aforesaid." The indictment then alleijed that the defendant swore that the said paper-writing or memorandum was duly executed by the said W. Knight, by affixing his mark to the same, in the pre- sence of the said J. Buri-aston,o/t the day on which the same bears date, and at the time of the making of the said bill of exchange, and that the said memorandum was then and there read over by the said J. Bur- raston to the said W. Knight. '' "Whereas, in truth and in fact, the, said W. Knight did not execute the said paper-writing or memoranduni\ by affixing his mark thereto, in the presence of the said J. Burraston, on the. day on which the same bears date, nor was the said memorandum (a) Rex t). Nicholl,* 1 B. & Afl. 21. Littlcdalc, J., and Parke, J., concurred, and Parke, .1., added, " It is part of the delinition of perjury that the false swearing is on some point material to the question in issue. In an indictment this may appear either from the matter of the suit, as shown on the record, or by direct averment." [h) Rep;, v. Hewius,'' 9 C. & P. 786. The defendant was acquitted. The form of the averment in this and the following case was taken from 2 Cliitlys Cr. L. p. 307 a; where it is said that this " concise statement would, it should seem, in all cases suffice." (c) Reg. ('. Goodfellow and another,'^ Stafford Spr. Ass. 1842, Patteson, J., after consult- ing CresswcU, J., 1 C. & Mars. 5G9. See the averment of materiality in Rex v. Callanan, ante, p. 638, note (q). » Eng. Com. Law Reps. xx. 336. *> lb. xxxviii. 336. ' lb. xli. 310. 641 OF PERJURY, ETC. MATERIALITY. [bOOK V. read over by the said J. Burraston to the said W. Knight at the time of the making of the said bill of exchange, nor was the said memoran- dum produced or shown to the said W. Knight by the said J. Burras- ton, at the time of making the said bill of exchange. Upon a writ of error, brought after a general verdict of guilty, the errors assigned were, that no perjury was assigned upon the question alleged to have been a material question upon the trial, and that no perjury was assigned upon any question alleged to have been a material question upon the trial ; and the Court of Queen's Bench held that the indictment was bad. The assignment of perjury, that the bill was not executed on the day on which the same bears date, departed from the statement of the evidence, and the allegation of the materiality. And the assignment of perjury, that the paper was not executed at the time of the making of the bill, *642 bore no relation *to the allegations of the evidence of the defendant. The statement of the evidence of the defendant, as well as the allega- tion of the falsehood, were uncertain. The words '^ then and there" might refer to the two dates, the date of the memorandum, and the day of the making of the bill, and it might consist with the fact that it never was read over on both days, or the defendant might never have intended to say that it was.(f^) Ann Bird's The indictment must show on the face of it that the matter loas ma- caso. Ma- terial , it is not sufficient if it only shows that it might or might not notneces- ^'^^*^ hccn material. An indictment for perjury alleged that, on the sarilj ap- trial of an indictment for an assault, with intent to commit a rape, and parent on ^^^ ^ common assault, upon one Ann Bird, the said Ann Bird swore that the indict- she was the wife of one J. Bird, and had been married to him at such a ment. ^j^^g ^-^^ sxxch. a place, whereas she was not the wife of the said J. Bird, and had never been married to him; and the indictment contained an allegation of materiality, which was insensible in consequence of an error in copying it from the draft; it was, nevertheless, contended, that it sufficiently appeared on the face of the indictment, that the evidence, on which the perjury was assigned, was material on two grounds. First, that on an indictment for an assault, with intent to commit a rape, it was most material, not only as affecting the credit of the witness, but as going to the very gist of the charge itself, whether the party assaulted had falsely sworn that she was a married woman. Secondly, that by swearing that she was the wife of J. Bird, the prosecutrix, supported the allegation that the assault was upon "Ann Bird," which would have failed if she had admitted that she was not married to J, Bird. But Cresswell, J., held that it did not sufficiently appear that the evidence was material; it might or might not be material, and that was not suf- ficient, (e) [d) Reg. V. Burraston, Q. B. Easter T., 1840, Jurist, vol. 4, p. 697. The court expressed strong doubts whether it was possible to separate the three propositions, which were said to have formed one question ; and Littledale, J., said that if it was one assignment of perjury, and part was bad, the whole was vitiated. It was also doubted whether where a matter was stated to be a material question, the prosecutor could abstain from stating any swear- ing as to such matter, or assigning any perjury upon it. But it became unnecessary for the court to decide either of these points, as the indictment was held bad on the grounds stated in the text. (e) Reg. V. Ann Bird, Gloucester Sp. Ass. 1842. The indictment for the assault simply stated the assault to be upon Ann Bird, without any further description. The learned judge expressed an opinion that the indictment was insufficient before the case went to the jury, but he left it to them, and after they had found the prisoner guilty, arrested the judg- ment, in order that the prosecutor might bring a writ of error if he thought fit. Xo writ CHAP. I.] OF PERJURY, ETC. — MATERIALITY. 642 "Where an imlictiuent for perjury stated that a cause was set down for Ajiparent trial, and appointed for a particular day, and that the defendant *in "f auTffi'da- that cause, before that day, made an affidavit before a judge, in which vit to jiost- hc stated that he had a good defence to the action, which he would be ''""i'^'Vo"'" able to prove at the trial, and (hat some of the bills, on which it was brought, were void for usury ; and then assigned perjury on those allegations; it was objected that the indictment was clearly bad : the only manner, in which i-uch an affidavit could be a judicial proceeding, or the matters contained iu it become material, would be upon an application to postpone the trial of the cause ; but the indictment did not show that any such application was made or intended. Lord Tenterden, C. J., however, thought that the occasion, on which the affidavit was intended to be used, might be sufficiently collected from the indictment, and refused to stop the trial, as the defendant, if there was any weight in the objection, might have the benefit of it after he was convicted. (/) But if the false oath has any tendency to prove or disprove the Circum- matter in issue, though but circumstantially; as, if the party wilfully ^'T*'.'j'™''* mis-state the colour of a man's coat, or speak to the credit of another witness, it will amount to perjury. (,yj It is also necessary that the indictment should expressly contradict The indict- the matter falsely sworn to by the defendant. And the general iiver-^^*^"'^,'"jy' nienl that the defendant falsely swore, &c., upon the whole matter, will contradict not be sufficient : the indictment must proceed by particular averments, ^^'^ ni»'ter , . ,, 11- • • \ 'sworn to by (or, as they are technically termed, by assit/itmeuts oj jwrjiir^A to nega- the defcn- tive that which is false. It may be necessary to sot forth the whole *^"°'^- matter to which the defendant swore, in order to make the rest intelli- gible, though some of the circumstances had a real existence : but the word " falsely" does not import that the whole is false; and when the proper averments come to be made, it is not necessary to negative the whole but only such parts as the prosecutor can falsify, admitting the truth of the rest.(/() It is suggested that in negativing the defendant's oath where he has sworn only to his i(li('J\(i^ it will be proper to aver that " Ae well knew" the contrary of what he swore. (y) It seems that Assign- an assignment of perjury may, in some instances, be more full than the JV'""'^ '^'1*^' statement of the defendant, which it is intended to contradict. Thus, ment of tho where the fact in the affidavit, in which the defendant was charged to d*^'"''"'^"'''- of error was brought, the prosecutor being unable to incur the expense of such a proceed- ing. It sometimes hai)pens tliat upon an objection taken to an indictment before verdict, the judge who tries the case, if lie considers the objection valid, directs an acquittal; but tlie course adopted by the learned judge in this case is certainly the better course, as if the decision be incorrect wlicre the judgment is arrested, it may be reversed ui)on error, whereas if the prisoner is acquitted, and the decision is incorrect, there is no means of correcting tlie error, and as the verdict of the jury has been taken, it may be very questionable whether if a fresh indictment were preferred a plea of autrefois acquit might not be successfully idcaded. See jxr Lord Tenterden. C. J., Rex v. Fowle," 4 C. & P. 592, post, p. 694. In Reg. r. Purchase,*' 1 (". & Mars. 017, tried at the same assizes, Patteson, J., afterconsulting Crcss- wU. .!.. refused to allow any oljection to be taken to an indictment for enibezzknicnt, except u]ion dciutirrer or in arrest of judgment, and it seems most in accordance with the regular course of proceeding that such a course should be adopted in all cases. C. S. G. (/) Rex V. Abraham, 1 M. & Rob. 7. The defendant was convicted, but did not appear to receive judgment when called upon, and no motion in arrest of judgment was made. {(j) Rex V. Griepe, 12 Mud. 142. Reg. v. Muscot, 10 Mod. 195. 3 Stark. Evid. 859, and Bee Reg. r. Gardiner, antf, p. G33. (h) Rex V. Perrott, 2 M. & S. 385, 390, 391, 392. And see ante, p. 31G. (i) Ante, p. 597. (J) 2 Chit. Crim. L. 312. • Eng. Com. Law Reps. xix. 540. ^ lb. xU. 335. (543 ASSIGNMENT OP PERJURY. [bOOK V. have perjured himself, was, that he never did, at any time during his transactions with the commissioners of the victualling office, charge more than the usual sum of sixpence per quarter beyond the price he actually paidybr any malt or grain purchased by him for the said com- missioners as their corn-factor; and the assignment in the indictment, to falsify this, alleged that the defeodant did charge more than sixpence per quarter /or and in respect of such malt and grain so purchased; it was objected that the words in rcsjject of might include lighterage, freight, and many collateral and incidental expenses attending the corn and grain jointly with the charge for the corn or grain, and, that bear- *644 ing such sense, the *defcndant was not guilty of perjury; but the ob- jection was overruled. (/.•) The aver- The averments introduced to negative the matter sworn, ought to be ativin<'"tlfe ^*^ distinct and definite as to inform the defendant of the particular and. truth of tlie precise charges, which are intended to be proved against him. An matter indictment for pcriury committed in the Insolvent Debtor's Court, sworn r J J ^ ^ I ought to bo alleged, that the defendant swore in substance that his schedule con- distinet tained a full, true, and perfect account of all debts owing to him at the and pre- , . „ .,.'.. , , • i , i , i • -i cise. time or presenting his petition; whereas, the said schedule did not con- tain a full, true, and perfect account of all debts owing to him at that time; and Lord Tenterden, C. J., after consulting the other judges of the Court of King's Bench, held, that the indictment was insufficient, as it was quite impossible that the defendant could know, from allegations so vague and indistinct, what was to be proved against him ; the alle- gations conveyed no information whatever of the particular charges against which the defendant ought to be prepared to defend him- self. (M) Perjury It has been decided in a recent case that perjury cannot be legally assi°ned^on charged and assigned by showing that the defendant did on two diiFerent contradie- occasions make certain depositions contradictory to each other with an tory depo- averment that each of them was made knowingly and deliberately, but -Sitions . . ..,.„, .. without without averring or showing in which of the two depositions the false- showing hood consisted. The information stated that the defendant, before a them is committee of the House of Commons, being duly sworn, deliberately false. and knowingly, and of his own act and consent, did say, swear, and give in evidence, &c. : setting out the evidence so given. And then the count averred that the said defendant, at the bar of the House of Lords, being duly sworn, deliberately and knowingly, and of his own act and consent did say, swear, and give in evidence, &c. : setting out in like manner the latter evidence, which was directly contrary to that given before the House of Commons ; and concluded (after averments as to the identity of the persons and places referred to in the evidence on both occasions), and so the jurors aforesaid, do say that the said Ed- ward Harris did commit wilful and corrupt perjury. And this was holden to be bad on motion in arrest of judgment. (?) (A) Rex V. Atkinson, Dora. Proct. 1785. Bac. Abr. tit. Perjury, (C). See Reg. v. Gardi- ner, ante, p. 633. (kk) Rex V. Hepper,' R. & M. N. P. R. 210. Lord Tenterden, C. J., referred to J'Anson v. Stuart, 1 T. R. H8, where in an action for a libel in describing the plantiflf as a swindler, a justification that the defendant had been guilty of divers acts of swindling, was held on demurrer too general to be sustained. See Rex v. Mudie, 1 M. & Rob. 128, post, p. 671. {!■) Rex V. Harris,* 6 B. & A. 926. It should have been averred and shown in which of the two depositions the falsehood consisted. ^Eug. Com. Law Reps. xi. 494. ^ lb. vii. 304. CHAP. I.] OF PERJURY, ETC. — INNUENDO. 644 If there be any doubt on the words of the oath, wliich can bo made ^^fH'o '"""- more clear and precise by a reference to some former matter, it may be supplied by an inmundo ; the use of which is by reference to preceding matter, to explain and fix its meaning more precisely -.[m) but it is not allowed to add to, extend, or change the sense. («) We have seen that, in a case of perjury committed in an afiSdavit, it was holdcn that a word which had been omitted by accident in the original document was im- properly stated in the indictment, as though it had been in (he original document, *and that such word ought to have been inserted and ex- *G45 plained by an innuendo. ^o) In a case where an objection was taken to an indictment, that it added, by way of innuendo to the defendant's oath, "his house situate in the llaymarket in St. Martin in the Fieldsj" without stating by any averment, recital or introductory matter, that he had a house in the llaymarket; or, (even admitting him to have such, a house,) that hh oath was of and coiicernhKj (lie. said house, so situ- ated, the objection was overruled ; on the ground that the innuendo was only a more particular description of the same house which had been previously mentioned. (^j) And in the same case, the oath of the defendant being that he was arrested upon the steps of his own door, an innuendo that it was an outer door was holden good.(r/) "Where Where it an innuendo is introduced contrary to the rules which have been men- 1""-^ , ■""' lectcci. tioned, and any use is made of it in the indictment, it cannot be rejected as surplusage, and it will be bad after verdict. (r) But if the innuendo, and the matter introduced by it, arc altogether impertinent, and imma- terial, and can have no effect in enlarging the sense, it seems that the}' may be rtjectcd as superfluous. (.s) The proper office of an innuendo is to fix and point the meaning of Virricr'.s something that has been previously averred. The indictment stated f"^*^'- ■^" • /» • • TT n /~i • 1 uinuendo the presenting of a petition to the House of Commons concerning the held good, election of F. II. F, Berkeley, and set out the petition, which stated the "^ '' ^^^'^ said F. II. F. Berkeley before and at the election was guilty of bribery, ■^^^^ of what, and that certain agents of the said F. II. F. Berkeley, being trustees of was pre- divers public charities, and by virtue of such office entitled to dispose [^'j"^ -^ * of the funds of such charities, before and at the said election were guilty of various corrupt acts, &c., in order to procure the return of the said F. 11. F. Berkeley. The indictment then averred that one T. Carlisle Indictment was a trustee of divers of the said public charities, and "that ^^o^tly |] V'^^''" ^'^ before the said election, (to wit,) on, &c., the said T. Carlisle, the said-.iiow tliat F. II. F. Berkeley, and other persons, went to the house of one W. H"^ °^'^'^' Virrier for the purpose of soliciting the said W. Virricr to vote for the „hiih tho said F. H. F. Berkeley at the said election." The indictment then stated matter that certain members of the House of Commons were chosen to try and ^^^^ ,^.^g determine the merits of the said election, and that the said persons sotlieone to chosen met to try and determine the matter of the said petition. The "||'^'|,,J,,y'^ indictment then averred that S. Virrier appeared "as a witness before of materi- the said select committee touching the matter of the said petition," and ' '.'-^ ^'^ '"^' that the said S. Virrier was duly sworn, &c. " And it then and there (m) Rex V. Aylott, 1 T. R. TO. Rex v. Taylor, 1 Campb. 401. («) Rex V. Griepe, 1 Lord Raym. 2.")0. 2 Salk. 51.3. And .>-• lb. vii. 309. CHAP. I.] OF PERJURY, ETC. — EVIDENCE. 652 But where the (lefonJant was indicted for perjury, alleged to have ^^'^li'^at- beeii couimitted on the trial of an indictment fur larceny, and it appeared J^"p ^ q^j^_ that the defendant had sworn to several material facts before the com- traJictoiy mitting map;i.strate, but, when he was called on the trial, denied the °,"^^^ "[ '^^ whole of what he had stated before the magistrate; and Ilex v. Knill uotsuiHoi- and Auon,(«'1 were cited to show that the contradiction by the oath be-*-'"^ ^^'''-''?"' '. , . other cvi- fore the magistrate, would alone- be sufficient evidence to convict the jencc. defendant ; but Guruey, B., held that it was not sufficient to prove that the defendant had, on two different occasions, given directly contra- dictory evidence, although he might have wilfully done so ; but that the jury must be satisfied affirmatively that what he swore at the trial was false ; and that would not be sufficiently shown to be false by the mere fact that the defendant had sworn the contrary at another time; it might be, that his evidence at the trial was true, and his deposition before the magistrate false. There must be such confirmatory evidence of the de- fendant's deposition before the magistrate, as proved that the evidence given by the defendant at the trial was false, (.x) *And where the prisoner was indicted for perjury, and it appeared that *G53 (?f) Supra, notes (t) and (m). (x) Reg. V. Wheatland,* 8 C. & P. 2.33. Although at first sight this decision may seem at variance with those cited, perhaps it may not in fact be so. In Rex v. Knill. the court held that "the jury might infer the motive from the circumstances," none of which are st.ited in the short minute of the case ; some of them might have been such as to show that the one statement was false, or the other statement true. In the anonymous case the defendant had been tampered with after his first examination, and the evidence of the tampering witli the defendant might be such as to lead to tlic conclusion that his evidence on tlie trial was false. But supposing those cases to go the length of establishing the proposition, that the defendant's own evidence upon oath is sufficient to contradict the evidence on which the perjury is assigned ; it is conceived they cannot be supported. The prosecutor may chargt- the perjury eitlier on tlie one statement or on the other, and whichever he selects it is clear that the defendant could not avail himself of a plea of autrefois aequit, or conviet in case he were subsequently indicted for the other, and therefore he might be twice put in jeopardy, and perhaps twice convicted for the same offence. The judgment in Rex i>. ILarris,** 5 B. & Aid. 92G, is conclusive to show that this is a good objection. Again, such evidence leaves it wholly uncertain which of the two statements is true; now it is a clear rule of criminal law that if tlie evidence on the part of the prosecution leaves it wholly uncertain whether the crime chari/ed has been committed or not, the defendant must be acciuitted ; and as to the observation that "it can hardly be in the defendant's mouth to deny the truth of the evidence that came from himself,'' it must be remembered that there are two statements upon oath, and if he is to be concluded from denying one to be true, the same reason would conclude him from denying the other, and it would surely be very unreasonable to hold that he is concluded to deny the truth of whichever the prosecutor may think fit to select. It is conceived, also, that an indictment charging each of the statements to be false in separate counts, could not succeed. The charges being directly contradictory the one to the other, it may be doubted whether the grand jury would be warranted in finding such an indict- ment ; or, if found, whether it would not be bad on the face of it ; and as the defendant could only make a defence to one charge by proving himself guilty of the other, the judge would probably insist u|)on the prosecutor electing on which charge he would proceed. But supposing these dillicuUics to be surmounted, it is not easy to see how it would be possibli' for the jury to find a verdict without any evidence to show which statement was false, if they found a verdict they would at one and the same time find each of the statements to be both true and false, unless indeed they were satisfied that the defendant had, upon both oc- casions, wilfully sworn to matters about which he had no knowledge at all. Ante, p. 597. C. S. G. perjury charged is contradicted by a public rcioril, proved to have been well known to the defendant when he took the oath, the oath only being jjioved to have been taken ; in case.'; where the party is charged with taking an oath contrary to what he must necessarily have known to be the truth ; and the false swearing can be proved by his own letters relating to the fact sworn (o, or by other written testimony existing and being found in the possession of the defendant, and which has been treated by him as containing the evidence of the fact recited in it. The United States v. Wood, 14 Peters, 430.] » Eng. Com. Law. Reps, xxxiv. 309. '' lb. vii. 304. 653 OF PERJURY, ETC. — EVIDENCE. [BOOK V. Jackson's she had made two statements on oath, one of which was directly at variance with the other ; Ilolroyd, J., is reported to have said, '' Although you may believe, that ou one or other occasion, she swore that which was not true, it is not a necessary consequence that she committed per- jury; for there are cases in which a person might very honestly and conscientiously swear to a particular fact, from the best of his recollec- tion and belief, and from other circumstances, at a subsequent time, be convinced that he was wrong, and swear to the reverse, without mean- ing to swear falsely either time. Again, if a person swears one thing at one time, and another at another, you cannot convict where it is not possible to tell which was the true and which was the false." (x) Mudio's In the following case, it was doubted whether the rule, which requires erai'wit-^^" ^^° witnesses, was satisfied by several witnesses, each supporting a nesses separate assignment of perjury, but no two speaking to the same assign- speaking meut. Upon the trial of an indictment for perjury, alleged to have assign- been committed by an insolvent debtor in falsely swearing to the cor- ments of rectness of his schedule, the defendants account-book given by him to Dcriurv o •/ the Insolvent Debtor's Court, was put in, and several persons whose names were specified in the indictment as debtors, and omitted in the schedule, appeared in the book as debtors to the defendant, and <'paid" was marked to their accounts in the defendant's writing. These persons were called, and stated that thcj did not pay until after the petition and schedule. It was objected that this was not sufficient evidence, inasmuch as it was only oath against oath, the defendant having sworn *654 that the debts *were paid, a single witness, with respect to each par- ticular debt, swore that it was not at the particular time of the schedule. Lord Tenterden, C. J., ''I feel the force of the objection. It is a very important point whether the defendant's book and the oath on one side, be not met by the oath of the witness on the other side. It would be very difficult to give any other evidence. I will not stop the case. If the defendant is convicted you can move for a new trial.'Yy) The rule But it has since been held, that the rule which requires two witnesses every se° °^ °°^ witness and some sufficient corroboration, applies to every assign- parate as- ment of perjury in an indictment. "Where, therefore, an indictment signment contains several assignments of perjury, it is not sufficient to disprove each of them by one witness ; but in order to convict on any one as- signment, there must be either two witnesses, or one witness and corro- borative evidence, to negative the truth of the matter contained in such assignment. The prisonpr was indicted for perjury alleged to have been committed in an affidavit to obtain a criminal information, in which he had sworn that he had paid all his debts, except two, as to which there was an explanation, and there were several assignments of perjury averring that he had not paid certain persons who were named, (besides the two excepted ones,) and such persons proved that they had not been paid, but only spoke to their respective debts not having been paid: Tindal, C. J., held that it was not sufficient, and that as to each debt, there should be the testimony of two witnesses, or of one witness, and such confirmatory evidence as was equivalent to the testimony of a second witness. (^J (x) Mary Jackson's case, 1 Lew. 2'i'O. (y) Eex V. Mudie, 1 M. & Rob. 128. The defendant was acquitted on another ground, see the same ca,se, post, p. GTl. (z) Reg. V. Parker,^ Stafford Sum. Ass. 1842, MSS. 1 C. & Mars. 639. » Eng. Com. Law Reps. xli. 346. CHAP. I.] OF PERJURY, ETC. — EVIDENCE. 654 The rule that the testimony of a single witness is insufficient to war- To what rant a couviction ou a charg* of perjury, is an arbitrary rule, founded ,.^^,.j„„ upon the general apprehension that it would be unsafe to convict in a two wii- casc where there is merely the oath of one man to be weighed against "^'^'^ ^^' the oath of auother;(«) and it should be observed that this rule does not extend to all the facts, which arc necessary to be proved on the trial of an indictment for perjury ; but only to the proof of the falsity of the matter upnu which the perjury is assigned. Thus, the holding of the court, the proceedings in it, the administering the oath, and even the evidence given by the defendant, may all be proved by one witness. (i) Though the contrary doctrine appears at one time to have pre- Party pre- vailed,(c) it is now well established that the party prejudiced by llii^li'io'ia^jury perjury is a competent witness to prove the offence. (r/) And, though u lompe- at one time it was considered necessary to show that such party had *''"' "'*•" satisfied the judgment in the suit in which the perjury was committed before he could be admitted as a witness ;(') on the ground that he might possibly make use of a conviction for the purpose of obtaining relief in equity against the judgment; yet, as it is *now an established rule *655 that a court of equity will not grant a relief on a couviction which pro- ceeds on the evidence of the prosecutor,^/) it is observed that there can be no objection to his being admitted a witness. (y) And this position has been sanctioned in a late case j in which a new objection was taken, namely, that where the prosecutor expected that the defendant would be taken, namely, that where the prosecutor expected that the defend- ant would be called as a witness in an action between the same parties, as those to the suit in which the perjury was alleged to have been com- mitted, he had a direct interest to obtain a couviction, as the witness would thereby be permanently disqualified from giving evidence in any future trial. The defendant was indicted for perjur}' on the trial of a case of Ilulme and Co. v. Gibson and Others Gibson, who was called as a witness for the prosecution, stated that he had not paid the debt and costs, but had filed a bill in equity, and expected that the defend- ant would be called as a witness against him in another cause, which was coming on between the same parties; and it was objected that Gib- sou was incompetent, first, on the authority of Rex v. Eden, and Hex V. Dalby -Jh) and secondly, because he had an immediate interest in convicting the defendant, because he would thereby be permanently dis- qualified from giving evidence against him on any future trial. "With regard to the first point, Lord Deuman, C. J., was of opinion that the cases cited had been overruled, and had always understood of late years that the courts had considered that a conviction obtained by the evidence of the party should not be u.sed in his favour. The second point, how- ever, appeared to be a new one, and there was great difficulty about it. But there being no decision on the point, his lordship thought it his duty to receive the evidence, as witnesses were not to be disqualified (a) 3 Stark. Evid. 859. {!,) See 2 Hawk. P. C. c. 46, s. 10. {r) Re.x V. Whitinp:, 1 Salk. 283. 1 Ld. Raym. 396. Rex v. Nunez, 2 Str. 1043. Rex v. Ellis, id. 1104. 2 Hawk. P. C. c. 46, s. 124. Bull. N. P. 289. (fl) Rex V. Broughton, 2 Str. 1230. Abrahams, q. t. v. Bunn, 4 Burr. 2255. Rex v. Boston, 4 East, 581. (e) Rex t'. Eden, 1 Esp. 97. Rex v. Dalby, Peake, N. P. C. 12. ( /■) Bartlett v. Pickersgill, 4 Burr. 2255. Smith v. Prager, 1 T. R. 60. Rex v. Boston, 4 East, 577. (y) 1 Phill. ou Evid. 63. (/i) Suj)ra, note (e). 655 OF PERJURY, ETC. — EVIDENCE. [book V. in Chan eery is dis missed. =656 without some clear determination on the subject. If, however, he had to decide the question finally, he would reject the evidence; and he only received it because his decision might be revised. (<) The prose- Where upon an indictment for perjury against the defendant in an ^om'eTenfc ^'^S'*^^'' *o ^ ^^^^ ^^ Chancery, it appeared that the defendant had brought after a bill an action against Lovcll and others on a contract, and obtained a verdict against them, and that he afterwards filed the bill in Chancery against the defendant to restrain him from suing out execution, and the defend- ant put in his answer and the bill was dismissed. Lovell being called as a witness stated that he had engaged to indemnify his partners from the expenses of the suit in Chancery; and it was objected that he was incompetent, and *Rex v. Dalby,(y) was relied upon; but Coleridge, J., held that he was competent. In Rex v. Dalby, the fate of the bill in Chancery might have depended on the result of the indictment, but in this case the perjury was assigned upon an answer to a bill upon which a decree had been made. (7^) And even if the indictment proceeded upon the 5 Eliz. c. 9,(^) which gives the prosecutor half the forfeiture incurred, it is conceived that, as in an action to recover his moiety he would be precluded from giving the conviction in evidence, there would be no objection to his compe- tency. (?/i) On an indictment for perjury alleged to have been committed by a bankrupt in an affidavit in support of his petition to the Court of Re- view to supersede his bankruptcy, upon the ground that he was not at or previously to the time of the issuing of the fiat a trader, and if he had been a trader, that he had not committed any act of bankruptcy, the petitioning creditor, the assignees, and creditors are competent wit- nesses to prove the validity of the fiat.(o) It has been ruled to be no objection to the competency of a witness on an indictment for perjury committed in an answer in Chancery, that, in his answer to a cross-bill, he has sworn to the same fact which he is called to prove upon the indictment. (j)) And if several persons are separately indicted for perjury in swearing to the same fact, either of them, before conviction, may be a witness on the trial of the other.(g') (^) Rex V. Hulme,* 7 C. & P. 8. The counsel for the prosecution then withdrew the wit- ness. Lord Denman, C. J., added, that the only ground on which the evidence could be re- ceived was the possibility^ that some great public inconvenience might result from a contra- ry course. In this case a case of Campbell v. Freeling was cited, in which there was a ver- dict against the defendant, who obtained a new trial, and indicted two of the witnesses for perjury, and was a witness against them, and examined before Lord Tenterden, C. J., with- out objection. As the only mode, in which a witness can be disqualified by reason of a con- viction for perjury, is by proof of the conviction and judgment by due course of law, 1 Phil. Ev. 19; and as it seems clearly settled that a party cannot use a conviction obtained by his own evidence in his own favour, it seems deserving of consideration whether the conviction would render the defendant incompetent in any suit to which the witness was a party. This point does not appear to have been noticed in Rex v. Hulme, either by the bar or by the court. C. S. G. (y) Anie, p. 654, note (e). (k) Reg. v. Yates,'' 1 C. & Mars. 132. (l) Ante, p. 603. (m) 1 Phil, on Evid. 66. In the note, however, Mr. Phillips adds, " Sed qu. The point appears to have been ruled otherwise in an old case. Bacon's case, 2 Roll. Ab. 685; and see Bui. N. P. 289. Gilb. Evid. 111. The question of course depends upon the point, whether a separate action is or is n6t necessary for the recovery of the penalties." See the cases col- lected, 1 Phill. Evid. 66. M Reg. V. Keat, 3 Moo. C. C. R. 24. (jo) Res v, Pepys, Peake, N. P. C. 138. (q) 2 Hale, P. C. 280. » Eng. Com. Law Reps, xxsii. 417. '' lb. xii. 77. Bank- rupt's as- signee, &c. Witness who has before sworn to the same fact or is himself in dieted for perjury. CHAP. I.] OF PERJURY, ETC. — EVIDENCE. 656 Where a bill of indictment was prt-ferred against the defendant for Chairman perjury, allei^ed to have been committed on a trial at the quarter ses-^^.^I?j^yj,g°'^ sions, and it was proposed to examine one of the grand jury, who had not allow- acted as chairman of the (luartcr sessions at the trial at which the al- '"'' *''.''*' , .', 11- examined leged perjury was committed, but that the gentleman expressed a desire as a wit- not to be examined as a witness, and the grand jury wished to know "'^'*'^- whether they ought to examine him or not ; Patteson, J., Ir-M that they ought not to examine him. lie was the president of a court of record, and it would be dangerous to allow such an examination, as the judges of England might be called upon to state what occurred before them in court. (?•) *It has been holdcn, that if a count for an indictment for perjury under- *Go7 take to set out continuously the subsfance and effect of what the de- I'^'jof of fendant swore when examined as a witness, it is necessary, in support j^,^ 'l|^.j""^" of this count, to prove, that I'n substance and effect he swore the whole sworn of that which is thus set out as his evidence, although the count contains '" *""''""<'* several distinct assignments of perjury. It was urged in support of the prosecution that reddendo s{n(jida sinf/nlis, the defendant was charged with swearing separately in answer to all the questions that were men- tioned. ]Jut Lord Ellenborough, C. J., said, " Suppose you had under- taken to set out the tenor of what the defendant swore, and it should appear by the evidence that he had not sworn a material part of that which was set out, would not this have been fatal ? Having taken upon you to state the substance and effect of what he swore, you are not bound down to precise words ; but must you not prove that he swore 'v\ substance and effect the whole that you have stated ? You aver that part of the defendant's evidence concerning the assurance given by Jjord Headley to be material, and you have not proved that he swore to any such assurance. Did you ever know the rule of red- dendo sinjula shujulis applied to a misreeital? Is there any authority to show, that, under secundum siibstantiam, 3'ou are not bound to prove thi) substance of what you state, as under secundum tenorem, you arc bound to prove the tenor? To hold otherwise, would be to introduce a most dangerous latitude into criminal proceedings. I am decidedly of opinion that you have failed in the proof of a substantial allegation. It is essential to the security of innocence, that words set out in the record should be either literally or substantially proved. A person giving his assurance generally, and giving his assurance for the pcrfornianco of a particular stipulation, are allowed to be entirely dif- (r) Reg. V. Gaz.ard,* 8 C. & P. 595. In Rex v. Jones,'' 7 C. & P. 13T,on an indictment for perjury the cliairuian of the Worcestershire Quarter Sessions proved what a witness swore on a trial before liim at the Quarter Sessions. In Reg. v. Gazard, the chairman was requir- ed as a witness for the same purpose, and not being examined the bill was ignored. Mr. Starkie, .after citing the case, adds a qua-rr, without stating any reason for so doing. 3 Stark. Evid. 801. It may, however, have strucic him that no sufficient reason could be as.signed for tlie> lb. .\xv. 320. 657 OF PERJURY, ETC. — EVIDENCE. [BOOK Y. ferent. If a man swears falsely to several material questions, these may be included in distinct counts. 'Y,s) *G58 *It appears to have been ruled, that upon an indictment for perjury Troof of the committed at the trial of a cause, the prosecutor must j^rove the tvhole thod'ofeua- *^^ the defendant's testimony ;(A unlcf-s the perjury be assigned upon a ant's testi- poiiit which first arose upon the defendant's cross-examination, in which ™°°^' case proof of the whole cross-examination has been ruled to be suflB- cient.(?() And the ground upon which proof of the tvliolc of the exami- nation, or cross-examination, was ruled to be necessary in these cases appears to have been, that possibly the defendant might have corrected in some part of such examinations any mistake he had made in other parts. But, it is observed, that the doctrine of compelling the prose- cutor to prove more than v^ •prima facie case, is an anomaly in the criminal law ; that in general the party indicting is not bound to anti- cipate matters of defence, wJiich it lies on the prisoner to bring forward; and that it does not seem that, in this case, the party indicted would sustain hardships in being compelled to show that he had corrected the part of his evidence assigned. (v) And it is said by another learned writer, that at most the rule seems to amount to this, that all the evi- dence given by the defendant, in reference to the particular fact on which perjury is assigned, ought to be proved. («') And the rule hardly seems to be necessary for the protection of the defendant, as it will be open to him to cross-examine the witness by whom his statements upon oath are proved, whether he did not in some other parts of his evidence (.s) Rex V. Leefe, 2 Campb. 134. The learned reporter says, " I find no decision or dictum in the books as to the evidence of tlie words sworn which is necessary to support an indict- ment for perjury. For the general principles upon this subject, vide 2 Hawk. P. C. c. 46, s. 34, 35, 3G. Compagnon v. Martin, 2 Bl. Rep. 790." The count upon which the question in this case turned, alleged that a committee was appointed and met to try the merits of a pe- tition complaining of an undue election, that certain questions were material, and that the defendant swore " touching the said material questions, and the merits of the said petition," in substance and eifect as follows, that he, by the directions of J. L., waited upon Lord H., and proposed to the said Lord H. that the said J. L. would decline upon the expenses being paid him, including the previous expenses of the day before ; that Lord H. agreed that the said expenses should be paid, including the expenses that had been incurred at different inns in the town ; that J. L.'s voters were to be applied to in consequence of that arrangement for the purpose of voting for the said Lord H., and that the defendant enumerated the expenses; that the defendant upon his return to the committee of the said J. L. communicated to them what had so passed between the said Lord H. and him, and that the said committee dispersed to carry the said agreement into effect ; and the said J. L. asked the defendant if the expenses were secured, and that the defendant told the said J. L. his lordship had given his assurance that it should he so. The assignments of perjury negatived each of these statements, and it was proved that everything alleged was sworn, except the last words "that it should be so." The decision in this case seems questionable. As it is cleai'ly settled that a defendant may be convicted of any one distinct assignment of perjury, though acquitted of all the rest, see post, p. 658, note (a), there seems no reason why proof of having sworn the matter negatived by one assignment should not be sufficient. In the case of obtaining goods by false preten- ces, it is clearly settled that proof of any one false pretence, and that the goods were obtain- ed by that pretence, is sufficient, ante, p. 310 ; and that is a stronger case, because there the indictment in effect avers that all the pretences operated towards the obtaining the goods. In perjury each assignment of perjury is separate and distinct, and the court will give judg- ment upon one. although all the others are bad in point of law. Reg. v. Rhodes, 2 Ld. Raym. 886. C. S. G. ' {t) Rex V. Jones, cor. Kenyon, C. J., 1791, Peake, N. P. C. 37. (u) Rex V. Dowlin, cor. Kenyon, C. J., 1793, Peake, N. P. C. 170. (v) 2 Chit. Crim. L. 312, referring to 1 Sid. 418, Rex v. Carr. (w) 3 Stark. Evid. 858. And the author farther observes, that the rule even to this effect appears to be a doubtful one; for when it has once been proved that particular facts, posi- tively and deliberately sworn to by the defendant in any part of his evidence, were falsely sworn to, it seems in principle to be incumbent on him to prove, if he can, that in other parts of his testimony he explained or qualified that which he had so sworn. CHAP. I.] OF PERJUKY, ETC. — EVIDENCE. 658 correct or explain those statements upon which the prosecution is founded, and uidcss the witness can positively deny any such correction or explanation, or if he admits that they may have occurred, the proof would probably be deemed insufficient for a conviction. And it will of course be open to the defendant to prove that any corrections or expla- nations were given by him in other parts of his evidence. (^) And it Proof of has since been held upon a case reserved, that on an indictment for ''!' ''"'*^ 1 • 1 r • • rr • givon on perjur}' committed on the trial of a cause, it is sumcient to go to the theimrtiuu- jury, if a witness states fruin recollection the evidence that the defendant '="" P"'"' '* ■ 1 7 1 T 1 i i 1 -i 1 • •,• 1 . • I sufficient, gave, tliough lie did not take it down in writing, and cannot say with certainty that it was all the evidence the defendant gave, if he can say with certainty that it was all he gave on that point, and that he said nothing to qualify it.(//) *It is sufficient to support the averment that the party administering *659 the oath had competent authority for that purpose, by showing in the Proof of first instance that he acted as a person having such authority. Thus, ||,1mi"nU"ter upon an indictment for perjury before a surrogate in the Ecclesiastical tho oath. Court, it was ruled, that t^e fact of the person who administered the ,\,^ o")fc"r oath having acted as a surrogate, was su&ii'ient prima facie evidence of sufficient. his having been duly appointed, and having authority to administer it. And Lord lillenborough, C. J., said, "1 think the fact of Dr. Parson having acted as surrogate is sufficient ^)r«mayaci*e evidence that he was duly appointed and had competent authority to administer the oath. I cannot for this purpose make any distinction between the ecclesiastical courts and other jurisdictions. It is a general presumption of law, that a person acting in a public capacity is duly authorized so todo."(;:) But it was holden, in the same case, that upon its appearing that the surro- gate was appointed contrary to the canon (which requires that no judi- cial act shall be speeded by any ecclesiastical judge, unless in the pre- sence of the registrar or his deputy, or other persons by law allowed in that behalf,) his appointment was a nullity, and the averment that he had authority to administer the oath was negatived. (a) So where per- jury was assigned upon an affidavit sworn before Chcll, a commissioner, &c., and it was proved that Chell acted as a special commissioner for taking the affidavits of parties in prison, or unable from sickness to attend before a judge; Pattcsoii, J., held that this was sufficient evidence that Chell was a commissioner, and that it was not necessary to prove the commission under which the affidavit was taken, upon the general prin- ciple that a person acting as a public officer must bo taken to have au- tliority as such, and that a commissioner for taking affidavits came within that principle. (i) It has recently been held that an indictment for perjury in an affida- Perjury in (z) Ucx r. Carr, 1 Sid. 418. (//) Rex V. Rowley ,» R. & M. C. C. R. Ill, and R. & M. N. P. R. 200, where Littledalc. J., is reported to have saiil, " I take the true rule to be thi.s' and all the evidence referable to the fact on whicii the perjury is assigned must be proved. In Rex r. .Munton,'' .3 C. & P. 498, three witnesses stated what the defendant had said on the trial of an indictment for an assault, and the defendant was convieted, although none of the witnesses took down the evidenee as it was given, and none of them professed to state the whole of the evidenee given. And this course has been followed in .■'ubseciucnt cases. Reg. v. Meek,<= reported C & P. 51.3, as to another point. Reg. i;. Ann Bird, Gloucester Spr. Ass. 1842, cor. Cresswell, J. (z) Rex ('. Verelst, 3 Campb. 432. Rex v. Cresswell, 2 Chit. Cr. L. :U2. 8. P. per Lord Cllonborough, C. J. [a) Rex V. Verelst, .tupra. (A) Rex v. Howard, 1 M. & Rob. 187. » Eng. Com. Law Reps. xxi. 444. ^ lb. xiv. 411. = lb. xxxviii. 201. 659 OF PERJURY, ETC. — EVIDENCE. [bOOK V. an affida- vit sworn in the Insolvent Debtors' Court by an insolvent, respecting Insolvent" ^^^ ^''^**^ ^^ ^'^^ property and expenditure, for the purpose of obtaining Court. an extended time to petition under sec. 10 of the 7 Geo. 4, c. 57, can- not be supported, without proving that the court by its practice required such an affidavit: and it was also held that such proof was not given by an officer of the court producing printed rules, puuporting to be rules of the court, which he had obtained from the clerk of the rules, and was in the habit of delivering out as the rules of the court, but which were not otherwise shown to be sanctioned by the court j the officer professing to have no knowledge of the practice except from such printed rules. (c) Exaraina- Upon an indictment for perjury committed before Mr. Dudley, an oath Tiva ^^"^i^i-ator, it appeared that an action was referred to the arbitrator, by voce by a an Order of Lord Tenterden, which ordered that the witnesses should commis- ]jQ g^orn before a iudge or "before a commissioner duly authorized." thorized to Mr. Dudley was a commissioner for taking affidavits in the Court of take affida- King's Bench, and he, under this order, swore the present ^defendant ' as a witness before himself, and signed a jusat stating that she had been so sworn ; and he then examined her viva, voce. It was objected that Mr. Dudley had no authority to administer an oath for any viva voce examination. Gaselee, J., "By the 29 Car. 2, c. 5, the courts are em- powered to appoint commissioners for taking affidavits ; and if this order had empowered a commissioner for taking affidavits to administer this oath, I would have reserved the point, because, whether the Court of King's Bench has any power to authorize their commissioners to take anything but affidavits, is a question that I should have left them to decide. However, on this order that question does not arise, for the order only allows the witnesses to be sworn before a commissioner duly authorized; now, as Mr. Dudley was never authorized to administer an oath for a viva voce examination, and I am of opinion that the de- fendant must be acquitted. "(c/j The oatli The taking the oath must be proved as it is alleged. Therefore, if proved as ^^ ^^ averred that the defendant was sworn upon the Holy Gospels, &c., ylleged. and it turn out that he was sworn in some other manner,' according to some particular custom, and not upon the Gospels, the variance will be fatal. (e) But where the allegation in an indictment was, that on the trial of an action the prisoner " was duly sworn, and took his corporal oath on the holy Gospel of God," and the proof was that the witness was ^worn and examined; and it was objected that the particular mode of swearing must be proved, as the evidence given would apply to the oath of a Jew, or person of any other religion than the Christian ; Little- dale, J., held the evidence sufficient, as the ordinary mode of swearing was the one specified. (/) The place The recital of the place where the oath is administered in the jurat stated in {^^g always been considered as a sufficient proof that the oath was ad- the jurat is . . . , . . , , , , „,, . n evidence ministcred at the place named. (r/j Where, therefore, perjury was as- (c) Rex V. Koops,» 6 Ad. & E. 198, 1 N. & P. 828. It was also contended for the defend- ant that the Insolvent Court had no power to make the rule, and that the offence was at any rate not perjury ; but no opinion was expressed upon these points. (d) Rex V. lianks,'' 3 C. & P. 419. \e) 3 Stark. Evid. 857. Rex v. M'Arthur, Peake's C. 155. (/) Rex V. Rowley,'^ R. & M. N. P. R. 299. \g) Per Lord Tenderden, C. J. Rex v. Spencer/ R. & M. N, P. R. 97. 1 C. & P. 260. » Eng. Com. Law Reps, xxxvii. 51. *> lb. xiv. 376. <= lb. xxi. 444. ^ lb. xi. 384. sive. CHAP. I."] OF PERJURY, ETC. — EVIDENCE. 660 signed on an answer in Chancery, and the defendant's signature to the t^^t t'lo an.swcr, and that of the master iu chancery to the jurat, were proved, ^^^^ sworn and that Southampton Buildings, which the jurat recited as tlic place there but where the oath was administered, was in the county of ^Middlesex ; Lord ""' "^""^ "" Tcuterdeu, C. J., held that this was sufficient proof that the oath was administered in Middlesex. (/<) But a variance as lo place of taking the oath will not be material, if it be proved to have been taken iu the county where the defendant is indicted. (/) And upon an indictment in I^Iiddlosex, it may be shown that the oath was in fact taken in Middle- sex, although the jurat state it to have been sworn in London. (y) It seems that on an indictment against a bankrupt for perjury before Proof the commissioners, in passing his last examination, it is necessary to ^^',j'l|',.y.,t give strict evidence of the trading, petitioning creditor's debt, and act of bankruptcy. (/.:) For where the authority delegated is of a special nature, limited to particular circumstances, it is essential to prove their existence, in order to show the authority to administer the oath,(/) *Upon an indictment for perjury, committed in an examination of a *661 witness, touching the estate of a bankrupt, it must must be proved that Upon nn there was a good petitioning creditor's debt. The indictment stated that l."'^"-*^'!"'°* . . . lor perjury A. P. carried on the bu!^iness of a builder, and that he was indebted to against a "W. B., in the sum of 100/. and upwards, that he committed an act of bank- witnes.s 1 />• 1 •!• 1 ■ • /< fitr -r> I examined ruptcy ; that a tiat issued against nim, on the petition ot W . ii. ; tliat^g to a the commissioners adjudicated A. P. to be a bankrupt ; that in the pro- ^Jsin'^^'pfs secution of the fiat it became material to inquire into the estate and „,j(jj ' j|_ effects of A. P. ; and that at a meeting of the commissioners the de- titioniuj; fondant appeared before them as a witness, and was sworn, &c. It "f/ "^''^j^^. appeared that the debt due to W. B. was much less than 100/., but that bo shewn, thi^re were two other creditors, to each of whom A. B. owed more than 100/.; therefore, under the 6 Geo. 4, c. 16, s. 18, the lord chancellor might, on application, have directed the substitution of a good petition- ing crediteir's debt for that of W. B., but that in fact this had not been done. It was objected, that the defendant was entitled to be acejuitted, as the averment tiiat W. B. was a creditor to the amount of 100/. was not only not proved, but was disproved. The counsel for the crown cited Ilex v. llaphael,(m) where Abbott, J., held that on an indictment against a third person, examined before commissioners of bankrupt, tlicir declaration that the party is a bankrupt, was sufficient. The de- fendant having been convicted, the judges, upon a case reserved, held the conviction wrong. (/() On an iudictnient for perjury, in an answer in Chancery, the bill must Proof of (//) Rex V. Spencer, supra. (/) Rex v. Taylor, Skin. 403. (/) Rex V. Enidcn, 9 East, l.^Y. 3 Stark. Evid. 858. (k) Rex V. Punslion, 3 Campb. 06. And sec Rex v. Bulloek, 1 Taunt. 71. {I) 3 Stark. Evid. 854. If the defendant wa.s not a bankrupt, there was no authority to administer the oath. Rut the case might admit of a diflerent consideration, where the perjury is assigned upon the deposition of a witness who comes to prove the bankruptcy ; for there the commissioners have jurisdiction to imjuire into the fact, though it should ultimately turn out that there was no liankruptcy. Id. ibid. See note (n). (m) Manning's Ind. 232. {») Reg. V. E\vingfon,» 1 C. & Mars. 310. In tlie course of the argument before the judges, Lord Abinger, 0. B., said, " You cannot dispute tiie authority of the commissionera to take the preliminary proceedings under the fiat, to ascertain whether the party should be adjudged bankrupt or not. They were authorized to do that by the fiat of the Lord Chan- cellor; but you say that if there was no good petitioning creditor's debt, the commissioners had no authority to inquire and examine witnesses as to the bankrupt's i)roperty." * Eng. Com. Law Reps. xli. 178. 661 OF PERJURY, ETC. — EVIDENCE. [book V. tho (lefonil ant havin: taken tho oath in answer in Chancery, or upon ob taining ad ministra- tion of a seaman's effects. *6G2 Proof of materiali- ty. Evidence of a de- ceased witness. Proof of niii pn'us record. - bo proved in the usual way ; and proof of the defendant's signature, ^ and of that of the master before whom the answer purports to be sworn, is evidence of the defendant's having sworn to the truth of the contents, without calling the person who wrote the jurat; or further proving the . identity of the defendant as being the very same person who had signed the answer.(o) But unless there be such proof of the defendant's sig- nature, or some other sufficient proof to identify him as the person by whom the oath was taken, no return of commissioners, or of a master in chancery, will be sufficicnt.(j'j) In a case upon the 31 Geo. 2, c. 10, s. 24, (for taking a false oath to obtain administration to a seaman's effects, in order to receive his wages) it was holden necessary to prove, directly and positively, that it was the prisoner who took the oath. And the court said that the evidence given was defective, as there was a possibility, from anything that had been given in evidence to the con- trary, that the prisoner might have gone through all the rest *of the fraud, and have avoided the circumstance of taking the oath, especially as he probably knew that the taking the oath was a capital felony. And they further said, that if this had been an indictment for perjury at common law, it would have been incumbent on the prosecutor to have given precise and positive proof that the prisoner was the person who took the oath; and it was equally incumbent on him so to do upon an indictment on the statute in question. (5-) In order to show the materiality of the deposition or evidence of the defendant, it is essential, where perjury is assigned in an answer to a bill in equity to produce and prove the bill,(r) or if the assignment is on an affidavit, to produce and prove the previous proceedings, such as the rule nisi of the court, in answer to which the affidavit in question has been made.(s) If the assignment be on evidence on the trial of a cause, in addition to the production of the record, the previous evidence and state of the cause should be proved, or at least so much of it as shows that the mat- ter sworn was material. So also such prefatory circumstances and in- nuendoes as are averred upon the face of the indictment for the same purpose must be proved. (<) It is reported to have been held upon the trial of an information for perjury, alleged to have been committed on the trial of an ejectment, that in order to prove the perjury, a witness might prove what a wit- ness, who was since dead, swore on the trial of the ejectment. (it) It has been observed that this ruling seems to be utterly inconsistent with the principles now establishediy) If the perjury was committed on the trial of a cause at 7iisi prius, the record ought to be produced, in order to show that such a trial was had : but the production of the postea will be sufficient for this pur- (0) Rex V. Benson, 2 Camp. 503. Rex v. Morris, 2 Burr. 1189. 1 Leach, 50. The rea- son why the Court of Chancery made a general order that all defendants should sign their answers was, with a view to the more easy proof of perjury in answers. 2 Burr. 1189. [p) Id. ibid. {q) Brady's case, 1784, 1 Leach, 327. (r) 3 Stark. Evid. 859, citing Rex v. Alford, 1 Leach, 150. \s) 3 Stark. Evid. 859. {t) 3 Stark. Evid. 859. (m) Rex V. Buckworth and others, T. Rayra. 160, per Twisden, S., and Jfortou, J., against Keeling, C. J., who said it was not to be allowed, because between other parties. [v) 3 Stark. Evid. 8G1, where the case is erroneously cited as Taylor v. Brown. The report does not show for what precise purpose the evidence was adduced ; if for the pur- pose of proving what passed on the former trial in order to show that the matter was ma- terial, qu. whether it was not admissible. C. S. G. CHAP. I.] OF PERJURY, ETC. — EVIDENCE. GC2 pose. (ft-) And, in addition to the production of the record, the previous evideuce and state of the cause should be so fur proved as to show that the luutter sworn to was material : and the prefatory circuiustaufes and iuuu(;udoes averred in the indictment for the purpose of showing such materiality must also be proved. Tlie record will show what i.ssues were joined between the parties; but such proof must be given of what occurred at the trial as will show the bearing and materiality of the de- fendant's evidence. (./•) Where some counts in an indictment for perjury in an affidavit to set asiile a judgment alleged that the defemlant 'H-aused to be entered up liual judgment in the said action," and a clerk from the judgment office produced a book from that office, in which judgments are entered up, and stated that interlocutory judgment was signed in the action, and that afterwards final judgment was entered up ; it was held that this was sufficient evidence to support those counts, without producing the roll or an examined copy of it.^xx) Where, in order to prove an allegation in an indictment for perjury Officer's that a cause came on to be tried, the nisi pr/ws record was produced, "^'°"''^. of and it appeared that no postea had been indorsed upon it, but there waSnt „u! a minute, in the handwriting of the officer, indorsed upon the jury panel V"''"«- which was affixed to it, in these words, " Verdict for plaintilf, damages Is." Lord Tenterden, C. J., after consulting the other judges of the Court of King's IJench, held that *the officer's minute was sufficient *663 evidence that the trial took place. (^) An indictment for perjury averred that there was an action pending A notice o<: between W. C. and ]3., and the defendant. The writ was not produced, ■■"■"' "'^.^'^ but to show the existence of the action, the attorney for the plaintifls in denco that the action produced a notice of set-off entitled in the cause, which he "" at-tn.n 11 -ic 1 /-iir-i -1 • • "''^^ penu- hau received irom the attorneys tor the deiendant in the action ; it was ii,,r. objected that the notice of set-off was inadmissible, as at most it was only secondary evidence; and the objection was held good.(.:) Where, upon an indictment for perjury alleged to have been com- Proof of initted on the trial of an at)peal against an order of removal, the sessions ^'"'' '""' 'i^ '111 m^PC'iil book was produced by the clerk of the peace in order to prove the trial of the appeal, and the clerk of the peace stated that he would, if applied to, have drawn up a record of the trial of the appeal on parchment; it was held that the sessions book was not sufficient evidence of the trial of the appeal. r«) But it has since been held that the sessions book containing the orders and other proceedings of the court ma) Rex V. Laycock,» 4 C. k P. 32G. ((/) Such as "posted of cousible pnl estc." {(■) Reg. V. Christian,'' December (3, 1842. 5IS.S'. 1 C. & Mars. 388. Lord Dcnman, C. J. (/) Rex V. James, Show. 397. 3 Stark. Evid. 8aT. And see Biickell v. IIul.?e,<= 7 A. . 4:)4. (ff) Rex V. Price, alias Wright, 6 East. 323. " Eng. Com. Law Reps. xix. 405. l lb. xl'. 214. '^ lb. xxxiv. 144. CHAP. I.] OF PERJURY, ETC. — EVIDENCE. 664 the defendant was acquitted and then examined, was not any proof of his acquittal, yet it was good proof that he was examined. (/<) If perjury is assigned upon an affidavit made by a marksman, either An affidavit the jurat must state that the affidavit was read over to the defendant, or °'^'^ inayks- it must be proved that it was so read. Upon an indictment for perjury admissiblo in an affidavit, which was signed with the mark of the defendant, but ""^'-'•'^'' "■ " sliown to the jurat to which omitted to state that it was read over to the defend- i,ave been ant; Littledalc, J., said, "as the defendant is illiterate, it must be '"'^a^ Vhoro the schedule on oath that the same and all its contents were true, and con-assign- tained a full, true, and perfect account of all his just debts, credits, ments of &c., and then went on to state that the said schedule and its contents alle"-e that were not true, and that certain persons whose names were set out, were certain debtors to the defendant at the time of giving in his schedule; Lord name^wer^ Tenterden, C. J., held that the evidence must be confined to the cases debtors, specified in the indictment, as the defendant could only come prepared '')',' "f® ° I ' J t I others be- to answer those cases, and tliat evidence that other persons, whose ing so inad- naiues were not set out in the indictment, were also debtors to the de- '"'''*''^'®* fendant and were omitted in the schedule, was inadmissible. (/l) Where the defendant had stated in an affidavit that he had paid all the debts proved under his bankruptcy, except two, as to which he gave an explanation, and an indictment for perjury alleged to have been committed in this affidavit in one assignment alleged that the creditors ^ were not all, with two exceptions only, paid by the defendant in full ; and in another assignment that certain creditors who were named, be- sides the excepted two were not paid in full; Tindal, C. J., held that if the first assignment were too general, the defendant should have de- murred to it, and that although by the generality of its form the prose- cutor was not precluded from proving the non-payment of other creditors (h) Rex V. Browne,* M. & M. 315. Lord Tenterden, C. J., after consulting the other judges of the Court of King's Bench. See this case as to another point, ante, p. 0G2. ( i \ Rex. r. Ilailey," R. & M. N. P. C. 1 C. & P. 258. (_/) Rex V. niiiley,<= 1 C. & P. 258. The report does not state in what manner the one aflSdavit referred to the other. {k) Rex V. Mudic,d 1 M. & Rob. 1 28. S. C. as Rex r. Moody, 5 C. & P. 2.3. The indictment is set out in the note to the latter report. See Reg. v. Parker,* Stafford Sum. Ass. 1842. 1 C. & Mars. 639. » Eng. Com. Law Reps. xxii. 319. ''lb. xi. 383. = lb. xi. 383. '' lb. xxiy. 196. « lb. xli. 346. 665 OF PERJURY, ETC. — EVIDENCE. [BOOK V. besides those named, yet as names were stated in the other assignments, it was reasonable to presume that the defendant would suppose that they were the persons, the non-payment of whose debts was to be relied on, and that in fairness the prosecutor ought not to go into evidence of the non-payment of any other creditors than those named. (7i;7i;) Averment Where an indictment for perjury alleged that Hallett exhibited a bill ncrshinVot '^ Chancery, by which he set forth that he, Bowden and Tucker (the supported defendant), entered into a verbal agi'eement to become joint dealers and by the copartners in the trade or business of druggists : and assigned perjury against the defendant in swearing that he, Hallett and Bowden did not become joint dealers in the trade or business of druggists ; and it ap- peared that Hallett was a druggist, but the defendant and Bowden were drug brokers, and had nothing to do with Hallett's shop, or the drugs sold there; but were continually in the drug market, but being brokers of the city of London they could not deal in their own names, and it was agreed that they should buy and sell drugs in Hallett's name, and then they were to divide the profit and loss. Abbott, C. J., held that the allegation in the bill in Chancery could only apply to an ordinary part- nership, and not to such a transaction as this, and, consequently that the indictment could not be supported. (?) Declara- Where an indictment for perjury alleged that a bill was pending in '^""^ t t^° the court of Chancery, and that it became material to ascertain whether the time of an annuity granted by G-. Hawkins to the defendant, or granted to J. paying j^ Bostock, as trustee for the defendant, had been paid up to the year monGv into . a bank. 1828, and that the defendant falsely swore that the annuity had not been paid up to 1828, and in order to show that Bostock, who was abroad, had paid the money to the defendant, it was proved that Bostock had sent money to his banker's by his clerk ; and it was held that what the clerk said about the money at the time he paid it into the banker's was admissible in evidence on the ground that it was a decla- ration made by an agent acting at the time within the scope of his authority.(m) Parol evi- Upou an indictment for perjury alleged to have been committed denote to upon the hearing of an information for sporting without a game certifi- deposition. cate, in order to prove what the defendant swore before the magistrate, his deposition taken in writing before the magistrate was put in, and it was held that evidence was not admissible of other things stated by the ^6Q^ defendant when he was examined as a witness *before the magistrate, but which were not contained in the written deposition. (^») (kk) Reg. V, Parker,^ 1 C. & Mars. 639. {1} Rex V. Tucker,'' 2 C. & P. 500. {m) Reg. V. Hall,'= 8 C. & P. 358, Littledale, J. (ra) Rex V. Wylde,'^ 6 C. & P. 380, Park, J. A. J. The correctness of this decision seems questionable. In the case of summary convictions there is no statute which requires ma- gistrates to take down the evidence in writing, and therefore what a party says in an ex- amination before a magistrate on such an occasion may be i^roved by parol, whether any person took it down or not. Robinson v. Vaughton,* 8 C. & P. 252, Alderson, B. Inasmuch, therefore, as all the defendant said might have been proved by parol, it is difficult to see how the deposition being put in could prevent other matters not contained in it from being proved by parol. The distinction between depositions in felony[and in summary convictions was not noticed in this case, nor was any reference made to Rex ?>. Harris, R. & M. C. C. R. 338. And the distinction in the text appears at variance with the ordinary practice of cross- examining a witness in cases of felony as to other statements made by him before the com- mitting magistrate, after his deposition has been put in and read. C. S. G. » Eng. Com. Law Reps. xli. 346. ^^ lb. xii. 234. <= lb. xxxiv. 427. J lb. xxt. 447. e lb. xxxiv. 376. CHAP. I.] OP PERJURY, ETC. — EVIDENCE. 666 Where perjury is assigned upon the evidence of a witness examined Conviction before magistrates on the hearing of an iufurmatiow, the conviction is liccs Jh^ix not admissible in evidence on the trial of the indictment for perjury, as not admix- it is irrelevant to the matter in issue. (o) ^'^'°' Where a count alleged perjury to have been committed before magis- Count for trates in examining a charge of feloniously receiving stolen silks, know- P'='*J"''y on ing them to have been stolen, and it appeared that the evidence was receiving given upon the hearing of an information, under the 17 Geo. 3, c. stolen 56, for having possession of silks suspected to have been purloined or fupponed embezzled; Patteson, J., held that the count was not supported, as the by proof of evidence was given upon the specific charge contained in the informa-|]^.I-'"|^^', °" tion.(^)) iiifornia- Evidence is essential, not merely to show that the defendant swore l!""/^",}*"^ falsely in fact, but also, as far as circumstances tend to such proof, to;;, c. 56. show that he did so corruptly, wilfully, and against his better knowledge. Evidence For it has been justly and humanely said that a jury ought not to con-°^ ^}^P *"""" vict where it is probable that the fact was owing rather to the weakness oC the do- than the pcrvcrseness of the party ; as where it was occasioned by sur-^*-'"'^'^'^*- prise or inadvertency, or by a mistake of the true state of the question. (j) The jury may infer the corrupt motive of the defendant from the cir- cumstances of the case,(r)and in order to show that the defendant swore wilfully and corruptly what was not true, evidence may be given of expressions of malice used by the defendant towards the person against whom he gave the false evidence. (s) The evidence appears to have been received in this case without objection. The defendant, although perjury be assigned on his answer, affidavit, Defence, or deposition in writing may prove that an explanation was afterwards given qualifying or limiting the first answer. ( an answer, defendant proved that, upon exceptions taken to this answer for the in- explained sufficiency thereof, she had put in another answer, which explained the '^^ """^ther tinswcr. generality of the first answer, and stated that she had received no money before such a day; and it was held, upon a trial *at bar, that nothing *667 could be assigned as perjury which was explained by the second answer, because the second answer clearly showed that that which at first ap- peared to be perjury, was not perjury. (it) Where an indictment for perjury contains several assignments of per- Evidence jury, and no evidence is adduced upon one of the assignments, the de- fg^^jj^^j' fondant is not entitled to give any evidence to show that the matter, charged by such indictment to be false, was in fact true.(i') (o) Reg. V. Goodfellow tvnd auother,* Stafford Spr. Ass. 1842, MSS., and 1 C. & Mars. 560. See Rex v. Dowlin, 5 T. R. 311. {p) Reg. V. Goodfellow, supra. {q) ?, Stiirk. Evid. 8G0, citing 1 Hawk. c. GO, s. 2. Rex v. Melling, 5 Mod. 349. Reg. v. Miisfott, 10 Mod. 102. As Avhere a man swore that he liad seen and read a deed, and on the trial it appeared that he had read the counterpart only. M Rex V. Knill,'' 5 B. & Aid. 020, note («), ante. p. (152. (s) Rex V. Munt.on,« 3 C. & P. 408, cor. Lord Tenterdcn, C. J. h) 3 Stark. Evid. 860. (m) Rex V. Carr, 1 Sid. 418. 2 Kebl. 576. 3 Stark. Evid. 860. Tiie reporter add.?, "at which unexpected evidence and resolution the counsel for the prosecution were surprised." [v] Rex V. Hemp,'! 5 C. & P. 468. • Eng. Cora. Law Reps. xli. 310. •> lb. vii. 306. « lb. xiv. 411. >> xxiv. 410. 667 OF PERJURY, ETC. — DEFENCE. [BOOK V. It is no do- The crime of perjury is complete at the time wlien an affivavit is aTaflidavit sworn, it is DO defence, therefore, that the affidavit cannot, through cer- ii-tter on tain omissioDS in the jurat, be received in the court for which it is sworn. \?, j"'1'^^"^^*"Upon an indictment for perjury in an affidavit relating to the service of reason of a a petition upon a bankrupt, it appeared that the affidavit was signed defective ^j^jj ^[^q mark of the defendant, and the jurat did not state either where iur£it it was sworn, or that the affidavit was read over to the party, and it was proved by a clerk in the master's office in Southampton Buildings that in cases where the party swearing the affidavit cannot write, the jurat ought, after stating the place where it was sworn, to state that the wit- ness to the mark of the deponent had been first duly sworn, that he had truly, distinctly, and audibly read over the affidavit to the deponent, and saw the mark affixed ; and that no affidavit would be received which did not contain this form of jurat when the party could not write. Little- dale, J., " The omission of the form directed by this and other courts to be used in the jurat of affidavits may be an objection to their being received in the court whose rules and regulations the party has neg- lected to comply with 3 but I am of opinion that the perjury is complete at the time the affidavit is sworn, and although it cannot be used in the court for which it is prepared, that nevertheless perjury maybe assigned upon it."(io) So where an affidavit when sworn, had been marked by the judge's clerk with his initials, but through mistake not then pre- sented to the judge for his signature, but some days afterwards it was signed by the judge ; Alderson, B., in the presence of other Barons of the Exchequer, expressed a clear opinion that perjury might be assigned ujjon the affidavit, although the judge's signature was omitted. (a;) So it is no Upon an indictment for perjury, it appeared that the defendant had defenco filed a bill in Chancery for an injunction, and had made the affidavit, on *ffid *^'t 'which the perjury was assigned, in support of the allegations in that has not bill. The indictment averred the bill to have been filed, and the affi- beenused Javit exhibited in support of it; and it stated the matters assigned as for the pur- . . . . . . . pose for perjury to be material to the questions arising on the bill; but it did •which it uot contain any statement that a motion had been made for an injunc- tion, and it did not appear by th^ evidence that any such motion had in fact been made. It was submitted that the defendant was entitled to an acquittal. By the practice of the Court of Chancery, an injunction could not be obtained, except for want of an answer, or on the insufficiency of the answer, or on evidence disproving the answer, in none of which cases is the affidavit of the plaintifi" admissible; or else ex parte before the time allowed to the defendant for answering has elapsed. In the last case and in that only, could the plaintiff's affidavit be used. The averment, *therefore, that the perjury was assigned on matter material .^*668 to the bill was not true; it could only be material to an application of a peculiar nature, and it did not appear, and was not alleged that such an apijUication was ever made. It was answered, that the objec- tion, if tenable at all, amounted to this, that perjury could not be as- signed upon an affidavit which had not been used. Lord Tenterden, C. J. — " I do not think the averment or proof, the absence of which is [iv) Rex V. Hailej,* R. k M. N. P. C. 94. 1 C. & P. 258. See Rex v. Crossley, ante, p. 630, note {y). {x) Bill V. Bament, 8 M. & W. SIT. * Eng. Com. Law Reps. xi. 383. CHAP. I.] OF PERJURY, ETC. — PUNISHMENT. G68 objected to, can be nocossary. The statements in the affidavit are ma- terial to the matters contained in the bill, which is for an injunction; and it may well have been filed in anticipation of a contemplated motion for an injunction, on which it might have been used. Can it make any difference that it afterwards turns out that the motion is not made ? The crime, if any, is the same, morally, in each case; and T certainly shall not, where the objection is open hereafter, hold it necessary to give proof of a fact which docs not vary the conduct of the party in taking the oath in question. "(y) Where an indictment for perjury alleged that the defendant produced ^r tli.nt it before a master in chancery an affidavit, " entitled, in the said Court of I'"''!" f' Chancery, and in the said suit therein at the suit of the said E. J. C., tic. and also in the said suit therein at the suit of the said Commissionrrs of Charitable Donations and Bequests in Ireland," and the affidavit, when produced, appeared to be entitled "between the Commissioner of Cha- ritable Donations and Bequests in Ireland, against J. E. D.,&c., (naming the other defendants,) and between E. J. C. and J. E. D., the Commis- sioners of Charitable Donations and Bequests in Ireland, and Others." It was objected that this affidavit was not one on which perjury could be assigned as there was no such suit as that in which the Commis- sioners of Charitable Bequests were plaintiffs; and the affidavit suit was improperly entitled, as the names of all the defendants were not stated, and therefore the affidavit was not admissible in the Court of Chancery. Lord Denman, C. J., "The courts are quite right in not receiving affi- davits which are not properly entitled; but I do not think the question whether there be perjury or not depends on the rule as to the entitling being strictly complied with."(.-:) If any one distinct assignment of perjury be proved, the defendant Verdict, ought to be convicted. (a) In a ease of prosecution against T. lleilly for suborning one Mac- Proof upon daniel to commit perjury, it was contended, on the part of the crown, fl '""Jl'"^''"' that the bare production of the record of Macdaniel's conviction was of suboma- itself sufficient evidence that he had, in fact, taken the false oath as ?'"" "'^ f*"""" alleged in the indictment. But it was insisted by the prisoner, that the record was not of itself sufficient evidence of the fact ; that the jury had a right to be satisfied that such conviction *v.'as right; that Reilly had a *GG9 right to controvert the guilt of ^lacdaniel; and that the evidence given on Macdaniel's trial ought to be submitted to the consideration of the present jury ; and the recorder obliged the counsel for the crown to go through the whole case, in the same manner as if the jury had been charged to try Macdaniel.(/>) The punishment for pcrjur}- and subornation of perjury, at common l'""'*''- law, has been various; being anciently death; afterwards banishment, ',,.'j',„.ymij (y) Rex V. White,* M. & M. 271. The defendant was acquitted. {z) Reg. V. Christian,'' December G, 1842. 1 C. & Mars. .388. [a) Reg. V. Rhodes, 2 Lord Raym. 886, 887. 3 Stark. Kvid. 8G0. And see Compagnon r. J[artin, 2 Bla. Rep. 700. Reg.' r. Virrier,' 12 Ad. k E. 317. Reg. v. Gardiner, aiife, p. (;33. In Rex v. Nicholls, Gloucester Sum. Ass. 1838, j)erjury was alleged to have been com- mitted l>y the defendant in evidence given on a trial for larceny, in uhich he denied having been at a particular hon.se on a i)articnlar occasion, and denied having had a conversation with certain persons there, and the indictment contained many distinct assignments on the going to the house, and the conversation, upon all of which evidence was given, and Patte- son J., directed the jury simply to consider whether the defendant had been to the house and if they were satisfied that he had to convict him, which they did. MSS. C. S. G. (h) Reilly's case, 1 Leach, 454. See vol. 1, p. 43. »::ng. Com. Law Reps. xxii. 304. t lb. xli. 214. <: lb. xl. 48. G69 OF PERJURY, ETC. — PUNISHMENT. [BOOK V. suborna- or cutting out the tongue; then forfeiture of goods. (r^^j" At the pre- tiun of pcr-ggjjt tjfjjQ it ig fine and imprisonment, at the discretion of the court,(rf) to which, as we have already seen, the 2 Geo. 2, c. 25, (e) superadds a power for the court to order the offender to be sent to the house of cor- rection for a term not exceeding seven years, or to be transported for the same period; and makes it felony, without benefit of clergy, to re- turn or escape within the time. If the prosecution proceeds upon the 5 Eliz. c. 9, that statute, as we have seen,(/) inflicts the penalty of perpetual infamy, and a fine of 40/. on the suborner ; and in default of payment, imprisonment for six months, and to stand with both ears nailed to the pillory ;(//) and punishes perjury with six months' impri- sonment, perpetual infamy, and a fine of 20^., or to have both ears nailed to the pillory. 'i'u°°'tt' ^" The 3 Geo. 4, c. 114, enacts, that " whenever any person shall be labour. ' convicted of any of the offences hereinafter specified and set forth, that is to say {inter alia^ of wilful and corrupt perjury, or of subornation of perjury, it shall and may be lawful for the court before which any such offender shall be convicted, or which by law is authorized to pass sen- tence upon any such offender, to award and order (if such court shall think fit) sentence of imprisonment with hard labour, for any term not exceeding the term for which such court may now imprison for such offences, either in addition to or in lieu of any other punishment which may be inflicted on any such offenders by any law in force before tho passing of this act ; and every such offender shall thereupon suffer such sentence, in such place, and for such time, as aforesaid, as such court shall think fit to direct." It has been holden that the punishments directed by the 18 Geo, 2, c. 18, to be inflicted upon perjury, in falsely taking the freeholder's oath at an election of a knight of the shire, are cumulative under the 5 Eliz. c. 9, s. 6,(Q and 2 Geo. 2, c. 25, s. ^,{J) to which the first men- tioned statute, 18 Geo. 2, c. 18, refers, (/j) *670 *Upou a conviction for perjury at the Chester Assizes, after the Judgment entry of the verdict the record proceeded " it is therefore ordered that 'Dcrjury. *^^ ^^^^ -'-'• ^- ^® transported to the coast of New South Wales, or some (c) 4 Bla. Cora. 138. (d) 4 Bla. Com. 138. Rex. v. Nueys and Galey, 1 Bla. R. 416. Rex v. Lookup, 3 Burr. 1901. In this last case the form of the sentence was that the defendant "should be set in and upon the pillory at C. Cross, for an hour between the hours of twelve and two, and that he should afterwards be transported to some of his majesty's colonies or plantations in Ame- rica, for the space of seven years ; and be now remanded to the custody of the marshal, to be by him kept in safe custody, in execution of the judgment aforesaid, and until he shall be transported as aforesaid." The 1 Vict. c. 23, abolishes the punishment of the pillory in all cases, " provided that nothing herein contained shall extend, or be construed to extend, in any manner to change, alter, or atfect any punishment whatsoever, which may now be by law inflicted in respect of an}- offence except only the punishment of pillory." (e) Ante, p. 605. (/) Ante, p. 604. {y) See note {d), supra, [i) Ante, p. 604. (/ ) Ante, p. 605. {k) Rex V. Price, alias Wright, 6 East, 323. Grose, J., passed sentence upon the defend- ant and two other persons who had been convicted of similar perjuries in the following form : — " That each of them for this offence should lose and forfeit 20('., and be imprisoned in Newgate by the space of six months without bail or mainprize, and that his oath from thenceforth be not received in any court of record within England or Wales, or the marches (jf the same, until such time as the judgment should be reversed by attaint or other\vise, and that after the expiration of the said six months he be transported to such place beyond the seas, as his majesty, with the advice of his privy council, should think fit to direct and ap- point, for the term of six. years." f [Hooper v. The State, 5 Yerger, 422.] CHAP. I.] OF PERJURY, ETC. — PUNISHMENT. 670 one or other of the islands adjacent, for and during the term of seven years ;" and upon a writ of error the following errors were relied upon; that the judgment was erroneous in form, being, "it is ordered;" whereas it should have been "it is considered;" that it was bad in substance, being a judgment of transportation only, whereas the 2 Geo. 2, c. 25, s. 2, enacts that judgment of transportation may be pronounced, besides the punishment that might before be inflicted ; that the place, to which the prisoner was to be transported, ought not to have been fixed by the court, the power of appointing that being given to the king in council by the 56 Geo. 3, c. 27 ; and that at all events the appointment of the place was bad, being to one or other of the various places, and, therefore, \incertain. And the Court of King's ]knch held that by the 2 Geo. 2, c. 25, s. 2, two things were required to be done by the court before which the party was tried : an order for transportation is to be made, and thereupon judgment is to be given : and here the court had made an order not followed up by a judgment. Inasmuch, therefore, as no judgment had been entered in the court below, and the Court of King's Bench had no power to supply the deficiency, as the punishment was discretionary, that the court awarded a pi'ocedendo, commanding the court below to proceed to give judgment on the conviction. (A A consequence of a conviction for perjury, though it forms no part of Conriction the iudgment, is that the offender is incapacitated from civino; evidence f*^*" P^'^V^ ~ ^ DO incaifjici- in a court of justice. (??i) But a pardon will restore his competency ; tates the except in the case of a conviction for perjury or subornation of perjury "'^'•'nJcr on the 5 Eliz. c. 9,(??) which provides that the ofi'ender shall never be jng evi- admitted to give evidence in courts of justice until the judgment bcicnce. reversed ; and, therefore, the king's pardon will not in such case make him a competent witness. (o) A very summary mode of proceeding is given, where persons con- Summary victed of perjury practise as attorneys or solicitors in courts of law or ^."j^^f^'^f '°^ equity. The 12 Geo. 1, c. 29, s. 4, enacts, "that if any person who persons hath been or who shall be convicted of forgery, or of wilful and corrupt •^o"'*'""."^'^ perjury, or subornation of perjury, or common barratry-, shall act or practice as practise as an attornev, or solicitor or agent, in any suit or action, i^t'onieys ^ , ... or souci- brought or to be brought in any court of law or equity within that part tors. of Great Britain called P^ngland, the judge or judges of the court, where such suit or action is or shall be brought, shall upon complaint or in- formation thereof, ex:amine the *matter in a summary way in open *671 court; and if it shall appear to the satisfaction of such judge or judges, that the person complained of, or against whom such information shall be given, hath offended contrary to this act, such judge or judges shall cause such offender to bo transported for seven years to some or one of his majesty's colonies or plantations in America, by such ways, means, and methods, and in such manner, and under such pains and penalties as felons in other cases are by law to be transported." The following cases, which have occurred with reference to some of the statutes mentioned in the course of this chapter, seem deserving of being introduced in this place. (Z) Rex r. Kcnworth,* 1 B. & C. Til. {m) Gilb. Ev. 126. Bull. N. P., 201. 4 Bla. Com. 138. 2 HaAvk. P. C. c. 4G, s. 101. (n) Ante, p. G04. (o) 1 Phil, on Evid. 21, and the authorities there cited. » Eng. Com. Law Reps. viii. 196. 671 • OF PERJURY, ETC, — PUNISHMENT. [bOOK V. An indict- An indictment for perjury, alleged to have been committed in the ™^,^ii,,"'|^,;n Insolvent Debtor's Court, stated that the defendant gave in his schedule ii.it Tu" \m- on oath that the same contained a true and correct account of all his dor the 7 ^|^3]Jj;g^ credits, &c., and then went on to state that certain persons, whose 57, s. 71, names were set out, were debtors to the defendant at the time of giving against an j,^ jjjg schedule, and that they were omitted in the schedule. It was insolvent , . . , . ,. ."^ . i i t i • • debtor tor objected that no indictment lor perjury would lie on such omissions; omissions that the ofFcnce of wilfully making such omissions was made punishable in I'liT^*"^ "^ ^s a misdemeanor by sec. 70 of the 7 G-eo. 4, c. 57, and the offence of schedule, perjury created by sec. 71, only applied to positive affirmations con- tained in the schedule. Lord Tenterden, C. J., "I think the legislature contemplated the particular case of omissions, and provided for them in the seventieth section, the debts omitted being comprehended under the terms ' effects or property' there used. The act then goes on in the seventy-first section to make other falsehoods in the oath of the party punishable as perjury. I therefore think the defendant must be ac- quitted. "(p) Indict- Upon an indictment against the defendant under the 2 Wm. 4, c. 45, ment for a g_ ^g £^^j. o-ivins a false answer to the question whether he had the same ir1s6 fin- ' o o A svver to qualifications to vote as that for which he was registered, it appeared the third i\^.^^^ i\^q defendant had occupied a house at the time of the registration, under the for which he was on the register as a voter, but he had left it before the reform act. election, and the landlord's agent had, before the election, given the key na^tion"""f ^^ ^^^ house to another person, who had put horses into the stable and tenancy. beer into the cellar, but the rent of such person did not commence till after the election ; it was held that the defendant must be acquitted, as there was no evidence as to the determination of the defendant's tenancy. (5-) Although a Upon an indictment against the defendant under the 2 Wm. 4, c. 45, has^veu ^' ^^' ^^^ falsely answering that he had the same qualification for which up the pro- his name was originally inserted in the register of voters, it appeared perty he ^j-^g^j. |.|^g defendant at the time of the registration was occupying a house the time he at Tumham Green, as tenant to Mr. Kay, at the rent of QOl. per was regis- annum, but he left that house at Lady Day following, and in April com- not vot'o ' nienced the occupation of another house at Turnham Green, as tenant still he to Mr. L., at a rent of 50^. and upwards per annum, and he continued to bo e'en- ^^ ^^^ occupation of this house from April till the time of the election. *G72 The defendant had been told that he *had no right to vote before he victod of a did SO, but he said that he believed he had a right to vote, and that he false an- ^^^ heen so informed by a committee of two of the candidates, and that swer to the , . . rf • 1 • • • question in their Opinion was sufficient to warrant him in voting. It was held that 9*'w^^ ^ ^^'^ nature of the qualifications being the same did not give the party a e. 45, if lie right to vote, merely because it fell within the general terms of thede- hona fide scription, which he had given to the revising barrister. The identity of had a ri°-bt ^^^"^ ^'•^^^^^'^^''^'^'^ must continue; and if a voter ceased to occupy the to vote. premises in respect of which he was registered, he thereby ceased to have a right to vote ; and it was no answer to say that, although ho had ceased to occupy those premises, he had entered upon the occupation of other premises of equal value. It had been urged that if the statement {p) Rexv. Mudie, 1 M. & Rob. 128. S. C. as Rex v. Moody, ^5 C. & P. 23. See sec. 70 of the 7 Geo. 4, c. 57, ante, p. 235, and sec. 71, ante p. 615. [q) Rex V. Harris,'' 7 C. & P. 253, Lord Denman, C. J. » Eng. Com. Law Reps. xxiv. 196. ' lb. xxxii. 503. CHAP. I.] OF PERJURY, ETC. — PUNISHMENT. -672 of the (Icfondant was untrue, he made it under the advice of a commit- tee; but that made very little difference, for if a party made a state- ment which he knew to be untrue, the opinion of an election committee (which generally had a pretty strong bias one way or the other) did not alter the character of the offence. But still the term "same qualifica- tion" was undoubtedly an equivocal expression, and almost necessarily implied something of opinion as to a matter of law, and the jury ought not to convict a person of a misdemeanor who possessed projjcrty of equal value to that which he held at the time of the registration, if he had acted bondjide, and had been guided in his conduct in a matter of law by persons who were conversant with the law, and who had told him that he possessed the same qualification, for which his name was originally inserted in the register of voters. (;•) If a party who is registered for a borough as a 101. householder, gives up the house in respect of which he is registered, and takes another of superior value within the same borough after the registration and before the election, he loses his vote, and if before and at the time of the elec- tion a new tenant has taken possession of the house that the voter has left, and is paying rent for it, the fact that a few articles of the voter's furniture remain in the house, and that the voter retains one of the two keys of it, will make no difference. (?•;•) The "same qualification" in the 2 & 3 Wm. 4, c. 45, s. 58, means the same identical property, (ss) A voter in a borough who is registered as a 10/. householder in re- spect of a house in Eldon Place, loses his vote, if after the registration and before the election, he removes to another house in Eldon Place, although the house, to which he removes, is in every respect within the description contained in the register. ("«) In a register of a borough the word " Penkhull," which denoted a portion of the borough, was put at the head of several names, including that of the defendant, who was on the register in respect of a house in Eldon Place, and it was held that if there was no other Eldon Place in the borough, it was not necessary for the deputy returning officer, in putting the third question under the Reform Act to add the word "Penkhull" as part of the description. («») On an indictment under the 2 & 3 Wm. 4, c. 45, for giving a false answer at the poll at an election of members of parliament for a borough, it is not necessary that the returning officer should himself put the ques- tions to the voters, under sec. 58, But it is sufficient if the town clerk do it in his presence and by his direction ; neither is it necessary to show that the agent, who required the questions to be put, was expressly ap- (r) Reg. V. Dodsworth,» 8 C. & P. 218. 2 Moo. & Rob. 12, Lord Dcnmiin, C. J. In Re<:. V. Irving, 2 M. & Rob. 75, note («), the same points arose, and Bosanquet, J., was decidedly of opinion tliat iu point of law the (lualificiition was not the same, but said that if the answer was given by the prisoner under a hond fide belief that he still retained his qualification, be should be acfiuitted. In the same note the learned reporters advert to the case where a voter is registered for "land," described, in his own occupation, or for "freehold houses," in some specified street, and after the registration he sells part of the land which was in his own occupation at the time of the registration, or some of the houses of which he then possessed the freehold : in each case, however, retaining enough in point of value to confer a qualifi- cation, and intimate a doubt whether such a party could truly answer the question in the affirmative. C. S. G. (rr) Reg. ?'. Bowler,'' 1 C. & Mars. 559. Patteson, J. (ss) Reg. V. Ellis,"-- 1 C. & Mars. 5G4. [it) Reg. v. Ellis, srqna. \uu) Reg. V. Ellis, supra. » Eng. Com. Law Reps. x.\xiv. 3G0. •> lb. xli. 304. = lb. xli. 5G3. 672 OF PEllJURY, ETC. — PUNISHMENT. [bOOK V. pointed by the candidate ; it is sufficient to show that he had acted as agent for the candidate. (wv) The word " wilfully" in an indictment on the 2 & 3 Wm. 4, c. 45, s. 58, for giving a false answer at the poll, should be construed in the same way, and supported by the same sort of evidence, as in an indictment for perjury. (^^6'2«) An indictment against a voter for giving a false answer at the poll, which stated that at a certain election for a member of parliament for the borough of Stoke-upon-Trent, the defendant appeared as a voter, and tendered his vote as such, and that he gave a false answer that he had the same qualification for which he was put on the register, whereas in truth he had not, appears to be bad, because it states all the matters by way of recital, and neither states the writ nor the pre- cept in holding the election, nor that the defendant's name was on the register. (a:a;) The defendant was acquitted in this case. In Keg. v. Ellis, 1 C. & Mars., 564,'' the indictment was in similar form, the de- fendant convicted, and the judgment arrested in the Queen's Bench, no cause being shown. The de- _ Where on the trial of an indictment on the 2 & 3 Wm. 4, c. 45, s. 58, th"reff^ter ^g^i'ist the defendant for giving a false answer to the question, " Have must be you the same qualification for which your name was originally inserted read or the jj^ ^^iq register of voters now in force for the city of Bristol ?" the sheriff's party is not *= j t n i i-i- indictable, deputy stated, that on the detendant tendering his vote he had asked him the question as set out in the indictment, but did not, at the end of the question, read from the register the line in which his name and qualification were inserted, < Lucy William, House, Lodge-street,' Wightman, J., held that the defendant must be acquitted, as the par- ticular qualification ought to have been read over."(s) Indictment Where a person is indicted for a misdemeanor in takinji a false oath, Ewearin 1 C. & Mars. 564. Patteson, J. xx) Reg. V. Bowler,<= 1 C. & Mars. 559, per Patteson, J. s) Reg. V. Lucy,) or to effect any public mischief, as by raising the price of the public funds by illegal means ;(c) are offences punishable by indictment. (/;) Reg. V. Mackarty ami Fordenbonrgh, 2 Lord Raym. 11 79. 2 East, P. C. c. 18, s. 5, p. 823. 4 Bla. Com. 162. And see the remarks upon the case of Mackarty and Fordenbourgh, in 6 East, 133, 141. (c) Rex V. De Berenger and others, 3 M. & S. 67. good indigo of foreign growth,) a base composition resembling genuine indigo of the best (jualit}', and of foreign growth, with the fraudulent intention that the same should be sold at public auction as genuine indigo of the best quality and of foreign growth. The indict- nuMit fiirtlier alleged, tliat the defendants did in fact manufacture this base composition and expose it to sale, and did sell it at public auction for genuine indigo of the best quality and foreign growth. The defendants were found guilty of the whole indictment except the last allegation, viz., that this base composition was in fact sold at auction. Several objections were made to the verdict, the last and most important of which was that the first count charges a conspiracy to do an act not prohibited by law, with an unlaw- ful intent to defraud, not any individual, by name, but whoever might be the purchasers, without giving any description of them, and no act done in pursuance of this conspiracy is either alleged in the first count, or found by the verdict. Parsons, C. J., in delivering the opinion of the court, says. " Tlie question is, whether tho conspiracy as alleged in the first count, no act being alleged as done in pursuance of it, is an indictable oflFence. After fully considering the several cases, the court are of opinion, that the gist of a conspiracy is the unlawful confederacy to do an unlawful act, or even a lawful act for unlawful purposes. That the offence is complete when the confederacy is made, and any act done in pursuance of it is no constituent part of the offence, but merely an aggravation of it. This rule of the common law is to prevent unlawful combinations. A solitary offender may be easily Inst. 14.T." («) 1 Hawk. P. C. c. 72, s. 2. (o) Ibid. Ip) Reg. I'. Hest and another, 2 Lord Rayni. IIGT. 1 Salk. 174. (q) Rex I'. IloUingbcrry,* 4 B. & C. 329. G 1). & R. 345. (/) 1 Hawk. r. 6. c. 72, s. 3. * Eng. Com. Law Reps. x. 34G. 6TG OF CONSPIRACY. [BOOK V. lawfully conspiring to accuse another of taking hair out of a bag, with- out alleging it to be an unlawful and felonious taking, it was said by Lord Mansfield that the gist of the offence was the unlawful conspiracy to do an injury to another by a false charge, and that whether the conspiracy be to charge a man with criminal acts, or such only as may aifect his reputation, it is sufficient. (.s) Such con- Neither is it any plea fur one who is prosecuted for such an unlawful iVdi^riicy confederacy, that nothing more was intended by him but only to give miallYcii- his testimony in a legal course of justice against the party, to whose miaai, prejudice such confederacy is supposed to have been formed ; for not- \''u'tiesmay withstanding it may be said that it would be a great discouragement to Miy that legal proceedings to make persons liable to a criminal prosecution for 'I'.T '",'°"" barely intending to give their evidence, and it be a prejudging of a cause to give tes- to try the truth of the testimony ^intended to be given in it before the liinony ina^^^ygg itself is determined, yet the law would rather venture this mis- l(>'>*al . course of chief than suffer so flagrant a villany to go unpunished. However, if juj^tice. there be any probability that the principal cause will ever be tried, it *677 seems proper to apply to the court to stay the trial of the confederacy until the merits of the principal cause be determined. (<) But the It is observed that it appears not only from the words of the statute, ('• '"musTbe ^^^ ^^^'^ ^^°'" ^^^^ plain reason of the thing, that no confederacy what- false and soever to maintain a suit can come within the words of the 33 Edw. 1, malicious, g|.^^_ 2, unless it be both false and malicious. (?(") And several persons and persons , /. ,, 1 i i ' -i may con- may lawfully meet together and consult to prosecute a guilty person, or suit to pro- Qjjg against whom there is probable cause of suspicion ; but not to pro- <'niltyper- secute one that is innocent, right or wrong. (y) And associations to pro- ton- secute felons, and even to put the laws in force against political offenders, are lawful. (^^^) Mawbey's In the following case it was holden that a certificate by justices of the spfnicy to" P*^^^*^ ^^^^ ^^ indicted highway is in repair, is a legal instrument, recog- pervert the nized by the courts of law, and adrai.ssible in evidence after conviction, •iTt'^° °h '^^^^^ *^*^ court are about to impose a fine : and that, consequently, it producing was illegal to conspire to pervert the course of justice by producing a afalsecer- f^lge certificate in eviden6e to influence the iudgment of the court. The tincnte of a . _ . , ... . ,. -^ ., . „ highway indictment stated that a highway was indicted as being out of repair, beina; in re-and a plea of not guilty, but that it was intended to apply to withdraw the plea and plead guilty ; that two justices of the county, and two other persons conspired to pervert the course of justice and impose on the court by producing a false certificate from the two defendants, who were justices, that the road was in repair, and that they did so. There was a verdict against the two justices, and a rule was obtained to arrest Argument the judgment. Upon showing cause against this rule the counsel for oftiieecmn-.jl^j, prosecution went at laro-einto a discussion of the doctrine and nature .••el for the . ^ . . __ . ° . prosecu- of conspiracies. He said that it follows from the very nature of the offence '■'■'"• of conspiracy that there is no charge of any specific crime, but it con- sists wholly of the unlawful combination ; and this will appear fully by adverting to the several sorts of conspiracy to be found in the books. 1. Where the subject matter is neither malum prohibitum, nor malum, in (■) Rex V. Rispal, Bla. Rep. 368. 3 Burr. 1320. And see Pippet v. Hearn, 5 B. & A. 634, a'l'c, p 636, note (o). (<) 1 Hawk. P. C. c. 72, s. 4. [u) 1 Hawk. P. G. c. I'l, s. 7. {v) Reg. V. Best and another, 1 Salk. 174. A;id see 1 Hawk. P. C. c. 72, s. 7. [w) Rex V. Murray, 1 Cliit. Barn's Just. 817. :\ratb. Djr. 90. Abbott, V. J., Guildhall, 1823. CHAP. II.] OF CONSPIRACY. 677 sc, as referred to the individual; but the criminality in law arises wholly from the conspiracy. Such as an agreement to maintain each other, right or wrong ;(:r) or a combination amongst labdurcrs or mechanics to raise their wages. (?/) So where several conspired to hiss at the Bir- mingham Theatre, Lord Mansfield held it indictable, altliuugh each might have done so separately. (s) So a combination between officers in the service of the East India Company, to resign their commissions, was held an illegal act; and consequently a resignation tendered under those circumstances was held not to be a determination of the service. (a) 2. Where the subject matter is not malum ^^roliihitum^ as referred to the individual, though mnhim in sc : but the criminality in law arises from the conspiracy,* such as a malicious combination against a trader *678 to ruin him in his trade.(6) So the taking up dead bodies, even though for the purposes of science in dissecting them, is now held an indictable offence j)f';- se :(<■) yet formerly it was not so considered, but even then it was held that an indictment lay for conspiracy to do so.(^/) A false indictment is no crime as referred to the individual, (r^) but a conspiracy for that purpose subjects the offenders to the villanous judgment. (/) The private slander of another by an individual is not indictable ; but conspiring to charge another with slanderous matter is so,(^) though no legal charge be actually prpfcrrcd.(/() Andin this latter case it was held that the quarter sessions had jurisdiction over conspirators. It is the same with private immorality, which is only indictable when coupled with a conspiracy. (t) So two or more joining to do legal acts with a corrupt intent may be indicted. (A-) And private deceits, coupled with a conspiracy, are indictable on that account. (?) 3. The third head of con- spiracy is where the subject matter is malum prohibitum^ as referred to the individual, and the criminality in law is thereby aggravated if executed. Of this nature is the bare attempt to subvert religion, (m) or public justice; and the latter will apply to both descriptions of counts in the indictment. Such also is the endeavour to dissuade witnesses from giving evidence,(?;) or the preparation of witnesses,(o) or the tam- pering with jurors. (p) Such are public frauds in trade, () It is farther said, how- ever, that it is usual to aver the settlements of the parties in their res- pective parishes, and also that the woman was chargeable to her own parish at the time, though this latter has never been adjudged to be necessary, nor seems to be required according to the general rules which govern the offence of con.spiracy.^^') It should seem that in such cases both the purpose and the means used are clearly unlawful. Conspiring to let a pauper land to the intent that he may gain a set- tlement is illegal. ('/■) Conspiracy Conspiring to charge a man with being the father of a bastard child, to charge -^jj intent to extort money from him, is indictable; and where the ob- a man with . •' '...'.,,, being the ject IS stated to be to extort money, it is immaterial whether the father of a -^voman is or is not pregnant. (s) And conspiring to make such a charge, child. though without any intent to extort money, is indictable; and it is not necessary to state in the indictment that the charge was false, or that the child was likely to be chargeable. The court doubted upon the objection that the charge was not stated to be false, but ultimately they held the indictment to be sufl&cient, as the defendants were at least charged with conspiring to accuse the prosecutor of fornication, and although that was spiritual defamation, conspiring to do it was a tem- poral oiFence.(«) Conspira- The frauds practised by swindlers may sometimes be indictable as cies to de- conspiracies. In a case which has been mentioned in a former part of Hevey's this work,(») where the prisoner had been acquitted upon a charge of case. Con- forgery, he was afterwards indicted with two of his associates for a con- make a spiracy to defraud. The indictment charged that the defendants Hevey, fraudulent Beatty, and M'Carty, fraudulently and unlawfully conspired that Baatty of a bill of should write his acceptance to a certain paper-writing, purporting to be exchange, a bill of exchange, &c. (the tenor of which was set out) in order that Hevey might, by such acceptance, and by the name M'Carty being indorsed on the back thereof, negotiate the said paper-writing as a good bill of exchange, truly drawn at Bath, by one Jer. Connel, for Smith and Co., as partners in the business of bankers, under the style of Bath Bank, as persons well known to them the said defendants, and thereby fraudu- (m) Per Lord Deuman, C. J., aud Taunton, J., ibid. \n) Per Williams, J., ibid., citing Rex v. Nield, 6 East, 416. But see Rex v. Ridgway,^ 5 B. & Aid. 527, where it was held that in a conviction for attending a meeting for carrying on a combination of journeymen for the purpose of obtaining an advance of wages, the words " for the purpose of obtaining," were synonymous with the words " to obtain,'' in the 39 & 40 Geo. 3, c. 106, s. 4, and Rex v. Xield doubted by Lord Tenterden, C. J. (o) Rex V. Edwards and others, 8 Mod. 320. (p) 1 East, P. C. c. 11, s. 11, p. 462. [q) Id. ibid. (;•) Per cur. 8 Mod. 820. («) Rex V. Armstrong, 1 Ventr. 304. 1 Lev. 62. Sid. 68. {t) Reg. V. Best, 2 Lord Raym. 1167. {u) Ante, p. 326. ^ Eng. Com. Law Reps. vii. 180. CHAP. II.] OF CONSPIRACY. 683 lently to obtain from the king's subjects goods and moneys; that Boatty, in pursuance of such conspiracy and agreement, did fraudulently and unlawfully n-rlte his arc^jdnnre to the said paper-writing to *tho tenor *684 following, viz., "Accepted, 20 Nov. — 81, 11. V>," well knowing the firm of Smith and Co. to be fictitious; that the defendants procured the in- dorsement " B. M'Carty" to be written on the same, and that the said ITevey, in pursuance of such fraudulent conspiracy, did utter the said paper-writing to one S. Read, as and for a good bill of exchange, truly drawn, &c., and accepted by the said Beatty as a person able to pay the said sum nf 30A; in order to negotiate the same, and by means thereof did fraudulently obtain a gold watch, value twelve guineas, and 11. 8.s-. in money ; whereas, in truth, at the time of drawing, accepting, and uttering the said bill, there were no such persons as Smith and Co. in the business of bankers at Bath, and the said Beatty was not of suffi- cient ability to pay the said SOi'., they, the defendants, well knowing the same, &c., whereby they defrauded the said S. Read of the said goods and moneys. The facts so charged being fully proved, the defendants were convicted. (r) A conspiracy to raise money by means of a bill importing to be a country bank bill, where there is no such bank, and none of the parties are of ability to pay the bill, is indictable. (?iA In a case of later occurrence the defendants were convicted on an in- Kolicrt's dictmcnt which charged them with a conspiracy to cause themselves to ^j';^,!| ^^ " be believed persons of large property for the purpose of defrauding lUfiau-l tradesmen.(.r)t tradosmon. Where in an action for slander it appeared that certain brokers were ronspiracy in the habit of agreeing together to attend sales by auction, and that ^^^JJ^j^^^ one of them only should bid for any particular article, and that after .-alus by the sale they should have a meeting, consisting of themselves only, at""*^*^'""' another place, to put up to sale among themselves, at a fair price, the (r) Rex V. Ilevey, Beatty, and M'Carty, 1782. 2 East, P. 0. c 10, s. 5, p. 858, note (a). («•) Anonymous, 1782, MSS. Bayley, J., Rose. Cr. Evid. 3G8. Quxcrc whether this be not a note to the precedinjif case. (x) Rex V. Roberts and others, 1808, cor. Ellenborough, C. J., 1 Camp. 399. f [The obtaining goods on credit by an insolvent person, without disclosing his insolvency, and without having any reason.able expectation of being able to i)ay for sucli goods, in and by means of the fair and ordinary course of liis business, is not of itself such an unlawful act as may be the subject of a conspiracy ; though it would be otherwise it seems, in the case of a purchase made witliout any expectation of paj'ment. The obtaining possession of goods under the pretence of paying casli for tlieni on deli- very, tlie buyer knowing that he luis no funds to pay with, and a]>propriatiiig tlic goods to liis own use, in fraud of the seller, is such a fraud or cheat as may be the subject of a con- spiracy'. In an indictment for a conspiracy to do an act which is a well known and recognised offence at common law, the object of the conspiracy may be described by the general terms Ijy which it is familiarly known; if the alleged purpose be the doing of an act which is not unlawful in itself, but which is to be effected by the use of unlawful means, those means must be particubirlv .set forth ; if it be the doing of an act which is not an offence nt com- mon law, but only by statute, the purpose of the conspiracj' must be set forth in such a manner as to show that it is williin the terms of the statute. The Commonweallli v. Eastman, 1 Cushing, 180. Where A. and 15. were indicted for a conspiracy to defraud the creditors of B., and the corpus delicti was the deposit by B. with A. of a large sum of money, and the proof of this was B.'s declaration after he had been arrested by the procurement of A. and other credi- tors, and no receipt was proven and all the circumstances were against such a deposit ; it was held, that the proof was wholly unsatisfactory to support the indictment, though there was some evidence that A. had aided B. to procure his discharge in insolvency. The State v. Simons, 4 Strobhart, 200.] 684 OF CONSPIRACY. [BOOK V. goods that each had bought at the auction, and that the difference between the price, at which the goods were bought at the auction, and the fair price at this private re-sale, should be shared among them ; Gurney, B., was of opinion tliat, as owners of goods had a right to expect at an auction that there would be an open competition from the public, if a knot of men went to an auction upon an agreement among themselves of the kind that had been described, they were guilty of an indictable offence, and might be tried for a conspiracy. (3/) Conspiracy Where an indictment alleged that a certain joiut-stock company had to labneato ^^^^^ established, the capital of which was to consist of 2000 shares, and sharos la ... . addition to charged the defendants with conspiring to fabricate a great number of tho limited other shares in addition to the said 2000, and it appeared that the com- number oi / i i whicli a pany had not been legally established; Abbott, C. J., was of opinion joint stock that if, in point of fact, a combination to the effect stated in the indict- cousirtsf nient were made out, such conduct, in point of law, constituted an offence punishable in a criminal way, notwithstanding the original imperfection of the company's formation. (.~) *685 The selling unwholesome provisions is, as we have seen, an indict- Conspiracy ^jjjg *offence ; and the following case of bartering bad and unwholesome to barter o o unwholo- wine appears to have been treated as a conspiracy. The indictment some wine, charged that the defendants falsely and deceitfully intending to defraud an'd For^ Thomas Chowne, of divers of his goods, &c., together deceitfully bar- den- gained with him to barter, sell, and exchange a certain quantity of pre- oroug s tgQ(jg(j wine, as good and true new Portugal wine of him the said case. . . Fordenbourgh, for a certain quantity of hats of him the said Chowne; and that, upon such bartering, &c., the said Fordenbourgh pretended to be a merchant of London, and to trade as such in Portugal wines, when, in fact, he was no such merchant, nor traded as such in wines ; and the said Mackarty, on such bartering, &c., pretended to be a broker of London, when, in fact, he was not, and that the said Chowne, giving credit to the said fictitious assumptions, personating and deceits, did barter, sell, and exchange, to Fordenbourgh, and did deliver to Mackarty, as the broker between the said Chowne and Fordenbourgh, for the use of Fordenbourgh, a certain quantity of hats, of a certain value, for so many hogsheads of the pretended now Portugal wine ; and that Mackarty and Fordenbourgh, on such bartering, &c., affirmed that it was true new Lisbon wine of Portugal, and was the wine of Fordenbourgh, when, in fact, it was not Portugal wine, nor was it drinkable or wholesome, nor did it belong to Fordenbourgh, to the great deceit and damage of the said Chowne, and against the peace, &c.(a) It is observed of this in- dictment, which was for a cheat at common law, that though it did not charge that the defendants consjiircd eo nominee, yet it charged that they together, &c., did the acts imputed to them, which might be con- sidered to be tantamount. (6) The case was considered as one of doubt and difficulty, but it seems that judgment was ultimately given for the crown, on the ground that the offence was conspiracy. (c) Conspiracy We have seen that all conspiracies, wrongfully to prejudice a third to solemn- pg^son, are considered as highly criminal at common law.((i) And M Levi V. Levi,* 6 C. & P. 239. (z) Rex v. Mott,'' 2 C. & P. 521. (a) Reg. V. Mackarty, and Fordenbourgh, 2 Lord Raym. 11'79. 2 East, P. C. c. 18, s. 5, p. 823. (h) 2 East, P. C. c. 18, s. 5, p. 824. (c) 2 East, ibid. And see anle, p. 281. (d) Ante, p. G74. » Eng. Com. Law Reps. xxv. 311. ^ lb. xii. 254. CHAP. II,] OF CONSPIRACY. 685 where a wnman, living in the service of her master, conspired with '^•"^ "i'^''- another m:in that he should personate hor master, and in that character ° should solemnize a marriage with her, which was accordingly done, for the purpose of afterwards raising a specious title to the property of the master ; the gist of the indictment was for the conspiracy, and the con- viction was founded on that ground. And it was considered in this case that, though no actual injury was proved, yet it was the province of the jury to collect, from all the circumstances of the case, whether there was uot an intention to do a future injury to the person whose name was assumed. (f;) And a conviction has taken place upon an indictment, whicli charged Conspiracy that M. A. Wrench was a person of ill-fame and bad character, and a''^ procnro common prostitute, and that W. B. Serjeant was an infant within the with ami- age of 21 years, and that M. A. W. and P. D. and S. J., intending to"'"" '^^ ''^. . . . license ob- defraud the said W. B. S. of his property, conspired for the purpose tained l.y a aforesaid to procure a marriage to be solemnized* between the said W. f^'^^ '^■'i"'- B. S. and the said M. A. W., by means of a false oath to be taken by *686 the said M. A. W., and by divers false pretences, and without the con- sent of the mother of the said W. B. S., his father being dead, and that the said M. A. W. and P. J)., and S. J., in pursuance of the said con- spiracy, did prevail on the said W. B. S. to consent to marry the said M. A. W., and by means of such persuasion, and by means of a false oath taken by the said M. A. W., in order to obtain a license for the solemnization of marriage between the said W. B. S. and the said M. A. W., did cause the said W. B. S. to marry the said J\I. A. W., and a marriage by such license was accordingly solemnized between them without the leave of the mother of the said W. B. S., who then was such infant as aforesaid. (/) The seduction of a young woman maybe attended with such cir- conspiracy cumstances as to be indictable as a conspiracy. A case is reported where '" seduce a Lord Grey and others were charged, by an information at common law, "man ° with conspiring and intending the ruin of the Lady Henrietta Berkeley, then a virgin unmarried, within the age of eighteen years, one of the daughters of the Earl of Berkeley, (she being under the custody, &c., of her father,) and soliciting her to desert her father, and to commit whoredom and adultery with Lord Grey, who was the husband of an- other daughter of the E.irl of Berkeley, sister of the Lady Henrietta, and to live and cohabit with him ; and further, the defendants were charged, that in prosecution of such conspiracy, they took away the Lady Henrietta at night from her fiithcr's house and custody, and against his will, and caused her to live and cohabit in divers secret places with Lord Groy, to the ruin of tlie lady, and to the evil example, &c. The defendants were f >und guilty, though there was no proof of any force, but, on the contrary, it appeared that the lady, who was her- self examined ns a witness, was desirous of leaving her father's house, and concurred in all the measures taken for her departure and subse- quent concealment. Tt was not shown that any artifice was used to pre- vail on her to leave her father's house ; but the case was put upon the {r) Rex V. T.iylor ami Ribinsin, I Laadi, 37. 2 East, P. C. c. 20, s. G, p. 1010. Sec Wade I'. Brouijhton. .3 Ves. & B. 172, tiiat persons conspirinjjf to ])rocurc the marriage of a female for the sake of her f )rtune may be indicted for a conspiracy. (j) Ke.v V. Serjeant,-' R. & M. N. P. R. 3.")2. ' Eng. Com. Law Reps. xxi. 453. 686 OF CONSPIRACY. [BOOK V. ground that there was a solicitation and enticement of her to unlawful "^ lust by Lord Grey, who was the principal person concerned, the others being his servants, or persons acting by his command, and under his control. (17) Conspiracy An indictment has been held to lie against several persons for con- tn carry spiring to carry away a youno; female under the a2;e of twenty-one from awav and T 1 r- 1 1 • i r 1 . 1 many a t'lc custody 01 tier parents and instructors, and aiterwards to marry her female un- ^o oac of the offenders, contrary to the provisions of the 4 & 5 Ph. & der the a^e > . , of twenty- ^^-j c. 8, ss. 3 & 4, and also for conspiring to commit the capital felony one, witli- (under the 3 Hen. 7, c. 2, s. 1) of taking away an heiress against her consent of ^'^^' ^^^^ afterwards marrying her to one of the defendants. f The hor pa- young lady, who was the heiress of a gentleman of large fortune, and rents. ^^^^ ^^j^, fifteen years of age, had been placed under the care of some ladies at Liverpool, for the purpose of finishing her education, and was *687 induced to leave their house by *raeans of a fictitious letter, fabricated by the defendants, who conveyed her to Gretna Green, where she was induced by means of false representations to go through the ceremony of a Scotch marriage, and to consent to become the wife of one of the defendants; and the defendants were convicted. (7i) Conspiracy A casc is reported where several persons were convicted on an indict- to impover- jjjgjjj. ^ijj,.|i churired them with conspirinii; to impoverish one H. B., a ish a man => , . , . ^. ° ^„ . ;. in his trade, tailor, and to prevent him, by indirect means, from carrying on his trade. (i) This, however, appears to have been considered as a conspi- racy in restraint of trade, and so far a conspiracy to do an unlawful act affecting the public. (/);{; But an in- An indictment will not lie for conspiring to commit a civil trespass dictment upQj^ property, by agreeing to go, and by going into, a preserve for for con- hares, the property of another, for the purpose of snaring them, though spiring to jj ^g alleged to be done in the night-time, and that the defeodauts were civil tres- armed with offensive weapons, for the purpose of opposing resistance to pass. any endeavours to apprehend or obstruct them. And Lord EUenbo- case ^ rough, C. J., in pronouncing the judgment of the court, said, " I should be sorry that the cases in conspiracy against individuals, which have gone far enough, should be pushed still farther I should be sorry to have it doubted whether persons agreeing to go and sport upon an- other's ground, in other words, to commit a civil trespass, should be thereby in peril of an indictment for an offence which would subject them to infamous punishment. "(A-) It may be observed that it was not (ff) Rex V. Lord Grey and others, 3 St. Tri. 519. 1 East, P. C. c. 11, s. 10, p. 4G0. See also Rex v. Sir Francis Blake Delaval and others, 3 Burr. 1434. (h) Rex V. "Wakefield, 2 Lew. 1. The marriage being in Scotland, an indictment for felo- ny under the 3 Hen. 7, c. 2, s. 1, could not have been supported, and there was no evidence to support an indictment under the 4 & 5 Ph. & M. c. 8, s. 4. See vol. 1, p. 703, 711. An indictment was preferred upon the 4 & 5 Ph. k M. c. 8, s. 3, but no judgment given upon it. (e) Eccles' case, I Leach, 274. (J) By Lord Ellenborough, C. J., in Rex v. Turner, 13 East, 228. (k) Rex V. Turner, 13 East, 228, 531. But qu. as to that which is reported in this case, (p. 230,) to have been said by Lord Ellenborough in the course of the argument, viz., that " all the cases in conspiracy proceed upon the ground that the object of the combination is f [A confederacy to assist a female infant to escape from her father's control, with a view to marry her against his will, is indictable as a conspiracy at the common law. Mifflinx. The Commonwenhh, 5 Watts & Serg. 461.] J [An association, the object of vvliich is to adopt measures that have a tendency to im- poverish a pcr.5on — that is to diminish his gains and profits, — is lawful or unlawful, as the means by whicdi that object is to be effected is lawful or unlawful. Commonwealth v. Huntj 4Metcalf, 111.] CHAP. II.] OP CONSPIRACY. 687 stated in the indictment that the weapoiui were danycrous, nor that the defendants conspired to go, &c., with strunj liand. In a later case the defendants were charged with conspiring to cheat ^"or will and defraud General Maclean, by selling him an unsound horse. ItnJent'lie appeared that one of the defendants, named Pywell,. had advertised the for a cou- sale of horses, undertaking to warrant their soundness ; and that, upon ^.^^^^''^an^i an application by General Maclean, at Py well's stables, another of the dciniua a defendants stated to him that he had lived with the owner of a l^orse "^-'I'lJ'yj^.^ which he then showed to the General j that he knew the horse to be an uusound perfectly sound, and, as the agent of Pywcll, would warrant him to be '''"^'^"n. sound. General Maclean purchased the horse, taking a receipt, in which j.jfg"'^ the horse was mentioned as warranted sound, and to be returned if not njiproved of within a week. It was discovered very soon after the sale that the animal was nearly worthless. Lord Ellouborough, C J., was of opinion that the case did not assume the shape of a conspiracy, and that the evidence would not warrant any proceeding beyond that of an * action on the warranty, for the breach of a civil contract. And if *G88 this were to be considered as an indictable offence, then, instead of the actions which had been brought on warranties, the defendants ought to have been indicted as cheats, and that no indictment, in a case like this, could be maintained without evidence of concert between the parties to effectuate a fraud. (?)f An inilictmcnt cannot be supported for conspiracy to deprive a man An indict- . , „. p , , ., , 1 i 1 i T meiit will of the onice of secretary to an illegal unincorporated trading company, j^^^ jj^ f^^ Lord Ellenborough, C. J., said that, the society being certainly illegal, conspiring to deprive an individual of an office in it could not be treated as an ii^-.,°nja^n"f*' jury : and that when the prosecutor was secretary to the society instead lUeoiace of of havinnr an interest which the law would protect, he was guilty of a ;'"'"''^*"^y o ^ ' *= •' to an lUe- crime.^??*) i^al trading The several statutes relating to the combinations of workmen were i^^umpany. repealed by the 5 Geo. 4, c. 95. But the 6 Geo. 4, c. 129, recites that '••■Bi'ina- the provisions of the former act had not been found effectual, and that „u,ongst such combinations are injurious to trade and commerce, dangerous toj"urney- tlie tranquillity of the country, and especially prejudicial to the interests c^^°e'o.4 ' of all who are concerned in them, and that it was expedient to makec I29,re- further provision, as well for the security of personal freedom of i"Ji- j^*'"r ac^s" vidual workmen in the disposal of their skill and labour, as for the security of the property and persons of masters and employers, and for that purpose to repeal the said act, and to enact other provisions and to be effected by some falsity." The facts stated in this case would constitute an offence within the 9 Geo. 4, c. 69, ante, vol. 1, p. 471, and it is conceived that a conspiracy to com- mit an ot!ence within that statute would be indictable, although not earned into edcct. See Rex V. Wakefield, supra. See also the observations on this case in Deac. Game L. 175. C. S. G. (I) Rex V. Pywell and others,* 1 Stark. R. 402. (;«) Rjw; r. Stratton and others, cor. Lord Ellenborough, C. J., 1 Camp. 549, in the notes. See Reg. r. Hunt,'' 8 C. & P. 642, ante, p. 177. f {In The State v. Rickey & al. 4 Halsted, 293, it was held that an indictment will nbl lie for a conspiracy to commit a civil injury, which is not of itself an indictable offence; e. ff., a conspiracy to obtain money from a bank by drawing checks on it when the drawers have no funds there. In The State v. Buchanan and al.. 5 Harris it Johnson, 317. it was held that a conspiracy to dt'fraud a third person, ac(oui|)lished I'V means of an act which would not in law amount to an indictable cheat, if eftccted by an individual, is indictable. See 9 Cowcn, 578. And N. York Revised Statutes, Vol. 11. 691, 6 y2.\ * Eng. Com. Law Reps. ii. 441. '' lb. xxxiv. 563. 688 OF CONSPIRACY. [BOOK V. regulations in lieu thereof, and then repeals the said act of 5 Geo. 4, c. 95. It then provides that various statutes therein mentioned, and all enactments in any other statutes or acts which immediately before the passing of the said recited act, of the 5 Geo. 4, were in force throughout or in any part of the United Kingdom of Great Britain and Ireland relative to combinations to obtain an advance of wages, or to lessen or alter the hours or duration of the time of working, or to de- crease the quantity of work, or to regulate or control the modes of carrying on any manufacture, trade, or business, or the management thereof or relative to combinations to lower the rate of wages, or to increase or alter the hours of duration of the time of working, or to increase the quantity of work, or to regulate or control the mode of caiTying on any manufacture, trade or business, or the management thereof, or relative to fixing the amount of the wages of labour, or re- lative to the obliging workmen not hired to enter into work, and every enactment enforcing or extending the application of any of the said several enactments so repealed shall, notwithstanding the repeal of the said recited act of the 5 Geo. 4, still be and remain repealed, except only so far as the same or any of them may have repealed any former act or enactment. 6 Geo. 4, The third section enacts, '' that from and after the passing of this act, c. ,s. 3. j£ g^^y person shall, by violence to the person or property, or by threats liD.^jour- or intimidation, or by molesting or in any way obstructing another, neymen to fQ^ce, or endeavour to force any iourneymen, manufacturer, workman, 1 6 \ Nicholls and Bygravc, 2 Str. 1227. But sec tlio case as better reported in 1.". East, 412, in the notes. (ii) Rex V. Cooke," 5 B. & G. 538. T D. & R. GT3. Littledale, J., said, "If the other deiliuhmt liere;il'ter be iic(iuitted, perhaps this judgment may be reversed." Sol qiiarc, for such acquittal would not necesmril;/ show that the verdict of guilty ou the former trial was wrong, as witnesses might be dead or absent who were examined on the former trial, or the one defendant might have been convicteil on his own confession, which would not be admis- sible against the other defendant. C. S. G. {v) Reg V. Best, 2 Ld. Raym. 1167. 1 Salk. 174. 3 Chit. Crim. L. 1143. («') Rex V. Gill, 2 B. & A.' 204. See note {e),post. p. 622. \x) Rex V. Seward,'' 1 A. & E. 706. f j9 Cowen, 578, Lambert v. People, where it was decided in the Court of Errors (against the decision of the Supreme Court,) by a casting vote, that if an indictment does not set forth the object of the conspiracy sjjecifically, and show that such object is a legal crime; it should particularly set forth the means intended to be used, and show that those means are criminal.}- » Eng. Com. Law Reps. xii. 307. ^ lb. xxviii. 185. f;91 OF CONSPIRACY. [BOOK V. rent of tho crime imputed to him by tlio conspirators. (y) And in a case of a conspiracy to charge a person with being the father of a bastard child, it was holden not to be necessary to aver that the prosecutor was not the father, especially when the words of the indictment were " did faheh/ conspire fuhchj to charge, &c.;" the principle being that inno- cence must be intended till the contrary appears. (-~) And it should seem that even without those words the indictment would be sufficient, and need not state that the charge was false, nor that the child was likely to become chargeable, &c.(a) And an indictment for a conspiracy was holden to be good, although it was not alleged in the charge itself that the defendants conspired fahdi/ to indict the prosecutor, and although it did not appear of vsXvdi ^'^frticular crime or offence they con- spired to indict him, but only in 1-11 cd where tended that it should have stated the tact on which the conspiracy was the thing founded, the means used for the purpose; Lord Mansfield, C. J., said^ iHoffal. "The conspiracy is stated and its object; it is not necessary that any Secus, means should be stated :" and Buller, J., said, " If there be any objec- w jie it IS ^j^j^ jj^ -g j.jj^^ ^i^g indictment states too much; it would have been good certainly if it had not added J :^ll"'"> persons to be affected by the conspiracy were not particularized, as they ^^asV ^ " ' ought to be, it was held that the indictment was good, for it followed sliaros in from the nature of the charge that the persons could not be named, l^e- '"'' '"°'^^' cause this was a charge of a conspiracy on a previous day to raise the funds on a future day, so that it was uncertain who would be the pur- chasers ; and the offence being to raise the funds on a future day, its object was to injure all those who should become purchasers on that day, and not some individuals in particular. (/<) So where the first count of an indictment stated that the defendants ludictment conspired to defraud " divers of her majesty's liege subjects, who should . '^""sr"'- bargain with the defendants for the sale of goods and merchandise of tuin goods the said subjects" of great value, without making payment or other re- "■''''.•^"^' muneration or satisfaction for the sanae, with intent to acquire to the pHymeat said defendants divers sums of money and other profit and emolument ; '"'t tlicm. it was held that it was no valid objection that the count did not state what particular creditors the defendants meant to defraud; fur if the (e) Rex V. Gill, 2 B. & A. 204. In this case the stateuients were of the most general kind that have ever been held sufficient. See Reg. i\ Parker, 11 Law J., N. S. 102, Mag. (]. Williams, J., there said, " It has been always thought that in Ilex v. Gill the extreme of laxity was allowed." (/) Ante, p. 681. Sec also Rex v. Seward, anlc, p. G85, note (/). Iff) Anonymous, 1 Chitty Rep. 698.» In Reg. v. Parker, 11 Law J., N. S. Mag. C. 102, it was said that the objection in this case was that the particular goods were not specified, and probably only so much as showed that was stated in the report. (/t) Rex V. De Bercugcr, 3 M. & S. 6S, anlc, p. Old. I [An indictment for a conspiracy to compass or promote a purpose, not in itself criminal or unlawful, by the use of criminal or unlawful nicmis, niu-;t set forth the means intended to be used. CommnnweaUh v. Hunt, 4 Metcalf, 111. An indictment for a conspiracy to compass or promote a criminal or unlawful purpose, must set forth that puri>ose fully and clearly. Ibid. Au inlictiiMit f)r cou-spiracy, if the act to be l;)no is in itself illo;^al, nccil not .-etforth the means by which it was to be accomplished. The Sttitr v. /inrllrtt, 30 Maine, 132. An indictment for a conspiracy should set out the means intended to be used ; and where these means are insufficient to have the effect of defrauding a person of liis property, the alleged object of the conspiracy, the offence is incomplete. Marsh v. The Peojdr, 7 Bnrb. Sup. Ct.'391.] • Eug. Com. Law Reps, xviii. 205. 693 OF CONSPIRACY. [BOOK V. ofTcnce went no further than the conspiracy, it could not be known what particular persons fell into the snare. But it was further held that the count was defective in not stating with sufficient particularity what the defendants conspired to do. For obtaining goods without making payment was not necessarily a fraud, as the words of the indict- ment might apply to the obtaining goods to sell on ciinnuission.(i) Incllctment The pccond count in the same indictment alleged that the defendants tor conspi- ■jjci^g ^i indebted to divers persons in large sums of money," conspired tain goods to defraud the said creditors of them, the defendants, of payment of ijyafrau- their Said debts, and in pursuance of the said conspiracy unlawfully did . Edwards and others, 8 Mod. 321. («>) Rex V. Loekyer and others, cor. Lord EUenburough, C. J., 5 Esp. N. P. R. 107. Rex v. Frederick and another, 2 Sir. 10!»(J. 1 I'liill. Evid. 74. (x) Rex V. Serjeant,' R. k M. N. P. R. 352. 1 i'hill. Evid. 74. ((/) 1 Phill. on Evid. y4, 95, 7th Ed. See 9th Ed. 20 L. (z) 1 East, P. (J. c. 2, s. 37, p. 96. 2 Stark. Evid. 32G, and 1 Phill. Evid. 477, citing the Queen's case, 2 Brod. & B. 302.<> f [State V. Burlingham, 15 Maine, 105.] » Eng. Com. Law Reps. xxi. 453. i' Ibid. vi. 123. 697 OF CONSPIRACY. [BOOK V. and that a declaration made by one of the parties, at the time of doing such an act is evidence against the others. Thus, where Stone was indicted for treason, and one of the overt acts charged was conspiring with Jackson and others to collect intelligence, and to communicate it to the king's enemies in France, &c., after evidence had been given to con- nect the prisoner with Jackson in the conspiracy as charged, the secre- tary of state for the foreign department was culled to prove, that a letter v of Jackson's, containing treasonable information, had been transmitted to him from abroad, but in a confidential way, which made it impossible for him to divulge by whom it was communicated ; and such letter was received in evidence. (a)f So, in another case, after evidence had been given of a treasonable conspiracy, in which the prisoner was concerned, it was held that papers found in the lodging of a co-conspirator, at a period subsequent to the apprehension of the prisoner, might be read in evidence, upon strong presumptive proof being given that the lodgings had not been entered by any one in the interval between the apprehension of the prisoner and the finding of the papers, and al- though no absolute proof had been given of their existence previous to the prisoner's apprehension. (6) But it seems that if such papers had *698 not been proved to have been intimately *and immediately connected with the objects of the conspiracy, they would not have been admissi- ble; as, in the same case, a paper containing seditious questions and answers, and found in the possession of a co-conspirator, was not read in evidence, the court doubting whether it was sufficiently con- nected by evidence with the object of the conspiracy to render it ad- missible, (c) J Declara- Where, upon an indictment for conspiring to annoy a broker who t>m°Vn distrained for church-rates, it was proved that one of the defendants, in of the con- the presence of the other, excited the persons assembled at a public spiracy. jneeting to go in a body to the broker's house ; it was held that evi- dence was admissible to show that they did so go, although neither of the defendants went with them, but that evidence of what a person, who was at the meeting, said a few days after the meeting when he himself was distrained on for church-rates, was not admissible, (c?) And (a) Rex V. Stone, 6 T. R. 527. (b) Rex V. Watson, 2 Stark. C. 140. (c) Rex V. Watson, supra. But they held that if proof were to be given that the instrument was to be used for the purposes of the conspiracy it would clearly be admissible. {d) Reg. V. Murphy,* 8 C. & P. 297, Coleridge, J. f ]See 6 Randolph, 285. Clayton v. Anthonj-. 2 Peters' S. C. Rep. 365.} [The acts and declarations of an accomplice are evidence wlien they are part of the res gesta and done in furtherance of the common design : but to make the acts or declarations of another evidence against the prisoner, a conspiracy or common design between them must be established. State v. George, 7 Iredell, N. C. 321.] \ [Where a combination of several persons i^or an illegal object is clearly established, the acts and declarations of one of the parties in reference to the subject matter of the combina- tion, which engaged in the prosecution of the joint design are admissible in evidence against his associates. Waterlurij x. Sturdevant, 18 Wend. 353. When partial proof of a combination between tlie prisoners has been given, what has been said or done by either of tlie prisoners in phinning the plot may be proven, but wliat was not in pursuance of the plot cannot be taken against the other conspirators. The State v. Simons, 4 Strobhart, 266. When the facts proved are insufficient to establish a conspiracy between the prisoner and a third person to commit an offence, the declarations of such third person made in the ab- sence of the prisoner, are not admissible in evidence against him. Williamson v. The Com- monwealth, 4 Grattan, 547.] » Eng. Com. Law Reps, xxxiv. 397. CHAP, ir.] EVIDENCE. 698 ■nhuie an inclictment charged the defendant with conspiring with Jones, who hud been previously convicted of treason, to raise insurrections and riots, and it was proved that the defendant had been a member of a Chartist association, and that Jones was also a member, and that in the evening of the 3rd of November the defendant had been at Jones's house, and was heard to direct the people there assembled to go to the race-course, where Jones had gone on before with others; it was held that a direction given by Jones in the forenoon of the same day to certain parties to meet on the race-course was admissible; and it being further proved that Jones and the persons assembled on the race-course went thence to the New Inn ; it was held that what Jones said at the New Inn was admissible, as it was all part of the same transaction.(r') The evidence in support of an indictment for conspiracy is goner- Proof of the ally circumstantial; and it is not necessary to prove any direct concert, *'""^''P'"'^y- or even any meeting of the conspirators, as the actual fact of conspiracy may be collected from the collateral circumstances of the case.(/) Al- though the common design is the root of the charge, yet it is not neces-It is not sary to prove that the defendants came together, and actually agreed in 1'^^'",*^.^°'?!^ terms to have the common design, and to pursue it by common means, tiic actual and so to carry it into execution, because in many cases of the most ^""^P"":icy. clearly-established conspiracies there are no means of proving any such ha inferred thiu^fy) If, therefore, two persons pursue by their acts the same ob-^''"™ ^^^ • ^ A 1 *i c ■ . c . - acts of tho ject, oiton by the same means, one performing one part of an act, and parties. the other another part of the same act, so as to complete it, with a view to the attainment of the object they were pursuing, the jury are at liberty to draw the conclusion that they have been engaged in a conspi- racy to eflfect that object. (^) In a case where a husband, wife, and their servants, were indicted for a conspiracy to ruin the trade of the prosecutor, who was the king's card-maker, the evidence against them was, that they had at several times given money to the prosecutor's ap- prentices, to put grease into the paste, which *had spoiled the cards; *699 but there was no account given that ever more than one at a time was present; though it was proved they had all given money in their turns; it was objected that this could not be conspiracy, on the ground that several persons might do the same thing, without having any previous communication with each other. But it was ruled that the defendants being all of a family, and concerned in making of cards, it would amount to evidence of a conspiracy. (t) And it appears also to have been considered that if a banker permits a sum of money to be lodged at his house, to be paid over, for corruptly procuring an appointment under government, he may be indicted for a conspiracy along with those who are to procure the appointment, and receive the money. (A Every person concerned in any of the criminal parts of the transac- Persons tion alleged as a conspiracy may be found guilty, though there be no-^"'"'"^ evidence that such persons joined in concerting the plan, or that they conspiracy ever met the others, and though it is probable they never did, and '• farmed. U) Reg. V. Shellard,* 9 C. & P. 277, Patteson, J. (/) Rex V. Parsons and another, 1 Black. R. 302. [""-"o dcnce, or he may prove the nets of the different persons, and thus prove Jjjpted. the conspiracy. Where, therefore, a party met, which was joined by the prisoner the next day, it was held that directions given by one of the party on the day of their meeting as to where they were to go and for what purpose, were admissible, and the case was said to fall within Rex V. IIunt,('5') where evidence of drilling at a different place two days before and hissing an obnoxious person was held receivable. (/•) But after such general evidence has been received the parties before the court must be affected for their share of it. And it seems that mere detached declarations and confessions of persons not defendants, not made in the prosecution of the object of the conspiracy, are not evidence to prove its existence, although consultations for the purpose, and letters written in prosecution of the design, but not sent, are admissible. (,s) It results from the principles already stated, and it has been observed as a conclusion to which they lead, that it seems to make no difference as to the admissibility of the act or declaration of co-conspirator against the party defendant before the court, whether such co-conspirator be in- dicted or not, or tried or not with the defendaut.(<) The evidence is admitted on the ground that the act or declaration of one is the act or declaration of both when united in one common design. In a case where the indictment charged the defendants with conspir- Cumu- ing to cause themselves to be believed persons of large property for the l"''^'*' '°- purpose of defrauding tradesmen, evidence was given of their having (■r.^^,J p^r- hired a house in a fashionable street, and represented themselves to one i"itt«J to, tradesman employed to furnish it as people of large fortune j and then a g^-jj^^gp witness was called to prove that at a different time they had made a similar representation to another tradesman. The evidence of this wit- ness was objected to on the *ground that it was not competent to the *701 prosecutor to prove various acts of this kind, and that he was bound to select and confine himself to one. But Lord Ellenborough, C. J., said, <' This is an indictment for a conspiracy to carry on the business of common cheats, and cumulative instances are necessary to prove the offence. 'Vw) But where a count alleged that the defendant and others did conspire In an in- to defraud J. Donkerslev and others of certain goods, and that in pur- '''<^^'™cnt •'. .° , * for con.«])i- suance of the said conspiracy the defendant did fal'^ely pretend to the rin^ to de- said J. D. that he was a merchant of the name of Grantham, carrying '^'"•'""' }*• on business at Leeds and Huddcrsfield; and in further prosecution of ^-hich the said conspiracy, and under colour of a pretended contract with the cliargp.» th.j said J. J), for the purchase of certain cloth of the goods of the said J. the coods D. and others, did obtain possession of a large quantity of cloth of the ol' D. and goods of the said J. D. and others from the said J. D., with intent ^^°' Q^'i^'othert cheat the said J. D. and others, to the great damage of the said J. D. Tneans and others; and it appeared that J. D. had partners; and evidence wasPj?'"iJ'®" , given to show an intended fraud upon that firm ; and it was also pro- evidence of posed to give evidence of attempts made by the defendant to defraud att'-'mpts to [q) .3 H. & Aid. .506. (r) Re^^ »'. Frost,* 9 C. & P. 129, Tindal, C. J., Parke, B., and Williams, J. (s) 2 Stark. Evid. 327. {t) 2 Stark. Evid. .'529. ^cc post, book G, c. 4, s. 2, for further points as to the evidence in cases of conspiracy. (w) Rex V. Roberts and others, 1 Camp. 399. Ante, p. 684. » Eng. Com. Law Reps, xxxviii. 70. 701 OF CONSPIRACY. [book V. defraud persons not tbo partners of D., is inad- luissibk'. The Court will take a judicial no- tice of a Upon an in- dictment for conspir- ing to ac- cuse of forging a check, iield unne- cessary to produce the check. *702 Record of acqviittal. Proof of !)ankrupl- cy. otiier persons, as well as the firm of J. D. and Co., of their goods : it was objected that the word "others" must be taken to mean others the partners of J. D. ; that whore the goods were stated to be the goods of J. D. and others, it could only mean others his partners, and the word could not have one meaning at one part of the count, and another at another part of the same count. The evidence was received; but, upon a case reserved, the judges held the conviction wrong. (?') In the case mentioned in this chapter, of a conspiracy to raise the price of the public funds by false rumours, it was holdcn that the court will take judicial notice that a war exists between this country and a foreign state, such war having been recognized in different acts of Parliament; and, therefore, that an allegation to that effect need not be proved, (k-) Where an indictment alleged that the defendants conspired falsely to accuse the prosecutor of having feloniously forged a check for the pay- ment of 178/., and that in execution of such conspiracy a letter was written, by one of the defendants, in Avhich he stated that he had been employed to investigate the circumstances attending the forging of a check for 178?., and proof was given of the letter, and also of conversa- tions referring in like manner to a check, which the defendants charged the prosecutor with having forged, but the check itself was not produced. It was objected that the check was so incorporated with the evidence, that the prosecutor was not entitled to prove the conversations without producing the check, to which they referred, which it appeared from the evidence was in existence, and in the possession of the defendants. Lord Tenterden, C. J., was, however, of opinion that it was not essential to prove the contents of the check or to produce it, but that it was ^enough to take the conversations as they passed. And the Court of King's Bench, upon a rule obtained to show cause why there should not be a new trial, held that it was not necessary to produce the check. The whole of the charge against the defendants was founded on the letter set out in the indictment, which was written by one of the defend- ants upon the application of the other; and they having taken upon themselves to treat as an existing thing a cheek for 178/., it was not necessary on the part of the prosecutor to produce it in evidence, even although it appeared that it actually existed. 13ut it might be a fabri- cation on their part, there might be no such check, and then it could not be necessary to produce it.(x) Where one of several defendants charged with a conspirac}^ has been acquitted, the record of acquittal is evidence for another defendant sub- sequently tried. (^3/) Where in an indictment for conspiracy, the bankruptcy of one of the defendants was stated in a prefatory allegation, and to prove this alle- gation, the proceedings under the bankruptcy were put in ; Lord Ten- (v) Eeg. V. Steel,^ 1 C. ifc Mars. 337. No ground for the decision is stated, but Lord Abinger said at the close of the argument, "I think the couusel for the defeudant is right in saying that the word ' others' must have the same meaning in the earlier part of the count as in the latter part of it ; and with respect to the property of the goods it must mean that they were the goods of J. D. and his partners." (w) Rex V. De Berenger, 3 M. & S. 67. Ante, p. 679. (x) Rex V. Aldridge.h 1 N. & M. 776. (?/) Rex V. Home Tooke,01d Bailer, 1794. 1 Chitty Burn. S23. * Eng. Com. Law Reps. xli. 187. t Ih. xxviii. .■]32. CHAP. II.] EVIDENCE. 702 terden, C. J., held, that the assignment was not admissible, without calling the subscribing witness to prove the execution of it.(~) AVhere an indictment charged that the defendant with divers others did conspire to prevent the workmen of one J. G. from continuing to work in a colliery j Pattcson, J., held that a conspiracy, to procure the discharge of any of the workmen would support the indictment, which did not necessarily lay the intent as to all the workmen. ^a) Two persons were indicted for felony, in attempting to poison A. B., by administering certain poisonous ingredients, as set forth in the in- dictment. At the same time, an indictment was found against them for a conspiracy to poison the same individual by the same means. On the trial of the fn-sl indictment, the prisoners were acquitted, there being no proof that the ingredients were poisonous. Parke, J., thereupon directed an acquittal for the conspiracy also, there being no other proof of a con- spiracy to poison than that by which it was attempted to establish the felony, viz , that the ingredients were poisonous. (i) Where an indictment against A., B., C, and D., charged that they Averment conspired together to obtain, " viz., to the use of them the said A. B., "^ ''' *""" , .T 1 . , » • 1 » ^of the con- and C, and certain other persons, to the jurors unknown, a sum oi i.j,irators money for procuring an appointment under government ; and it appeared °"t proved, that D., (although the money was lodged in his hands, to be paid to A. and B. when the appointment was procured,) did not know that C. was to have any part of it, or was at all implicated in the transaction ; it was holden, that the averment concerning the application of the money was material, though coming under a viz. ; and that as to D. the con- spiracy was not proved as laid.(c) *Where an indictment for a conspiracy to procure false witnes-ses on *703 the trial of an ejectment, at the great sessions for the county of Gla- Varwnce. morgan, stated that at the ^e?ie?*a^ sessions of our Lord the King, holden, &c., an action of ejectment was depending, in which action J. Doe, on the demise of W. llees and D. Terry was the plaintiff, and R. Thomas and T. Beavan the defendants, and it appeared that the ejectment was brought on a joint and two several demises of llees and Terry ; it was held, first, that the description of the sessions was erroneous, as it should have been at the great sessions ; secondly, that there was a vari- ance between the action described in the indictment and the action proved to have been pcnding.(r^) Where an indictment for a conspiracy stated in the indictment that Misdescii] - the defendants knew that the parties conspired against were the pro-''"" ^^ !^ prictors of certain licensed stage carriages, and as such proprietors liable Tm judict- to certain penalties, in which the drivers of such carriages should be™'-'"'/"'" convicted of any offence committed by the said drivers, against " a cer- tain act of parliament made and passed in the second and third years of the reign of his present majesty, intituled, &c.," (setting out the title correctly ;) and that the defendants unlawfully conspired falsely to ex- hibit a certain information, charging, &c., contrary to the form of the statute in such case made and provided; the judgment was arrested, on the ground that a statute cannot be pleaded as made in two years ; for in law an act cannot be made in two years. (<■) (z) Rex I'. Pope,* r> C. & P. 208. (a) Rex V. Hykerdikc, 1 M. & Rob. 179. (h) Maudley's case, 1 Lew. 51. (c) Rex V. Pollniiin and others, 2 Campb. 2.31. (d) Rex V. Thomas,'' 1 C. & P. 472, Park, J. A. J. (e) Rex V. Biers,' 1 A. & E. 327. The correct statement is " a certain statute made and » Eng. Com. Law Reps. xxiv. 283. •» lb. xi. 453. ' lb. xxviii. 98. 703 OF CONSPIRACY. [book V. Particulars of the charges in- toiuK'il to bo roliod upon. Acquittal of sorao of the defend- ants. Election. ^704 Wlierc the counts in an indictment for a conspiracy are framed in a general form, the judge will order the prosecutor to furnish the defen- dants with a particular of the charges, upon which he means to rely, and such particular ought to be so framed as to give the defendants the same information as would be given by a special count : but it need not state the specific acts the defendants are charged with having done, or the times or places at which such acts are alleged to have taken place.(/) Upon the trial of an indictment for a conspiracy, the counsel for the prosecution has a right, before opening his case, to have any of the de- fendants acquitted, in onler that he may call them as witnesses, and the counsel for the other defendants has no power of objecting to this being done.(y) Where an indictment contained counts for a conspiracy and counts for a libel contained in a hand-bill, and there was no evidence to affect one of the two defendants as to the libel.; Coleridge, J., at the close of the case for the prosecution, put the prosecutor to elect upon which charge he would go, before the defendant's counsel entered upon the defence. (A) *The Court of King's Bench have refused to change the venue in an indictment for a conspiracy to destroy foxes and other vermin, on the ground that the gentlemen who were likely to serve on the jury to try the indictment were much addicted to fox-hunting. (*') In a recent case, a point arose as to the extent to which the counsel for the prosecution in a case of conspiracy might cross-examine a wit- ness, called by only one of several defendants. The indictment was against A., B.,and C. ; and after the case for the prosecution had closed, C only called a witness, whom he examined as to a conversation be- tween himself and A ; and it was ruled that the counsel for the prose- cution might cross-examine such witness as to any other conversation between A. and C, although the evidence should tend chiefly to crimi- nate A (/l-) If upon an indictment for conspiracy, the jury find the defendants guilty of so much of the indictment as amounts to a misdemeanor, the court may pass judgment upon the defendants. The defendants were indicted for conspiring falsely to indict A. B. for keeping a gaming- house, for the purpose of extorting money from the said A. B., and the jury found the defendants guilty of conspiring to indict A. B. for the purpose of extorting money, but not to indict him falsely ; and it was held that enough of the indictment was found to enable the court to give judgment; for in criminal cases, it is sufficient for the prosecutor passed in a Session of Parliament, held in the first and second years of the reign of King William the Third." Per Patteson, J., ibid. Gibbs v. Pike, G M. & W. 223. S. P. (/) Rex V. Hamilton,* 7 C. k P. 448. Littledale, J., after consulting several of the other judges. In Anonymous, 1 Chitty, 698, the Court of King's Bench refused to order such par- ticulars to be given on motion, but intimated that the correct course was to apply to the pro- secutor to give some information as to the particulars upon which he meant to rely in sup- port of the indictment, and if he refused, then au application might be made to postpone the trial in order that the (luestion might be more maturely discussed. From which it is to be inferred that the motion had been made without any previous ajDplication for particular's to the prosecutor. C. S. G. {g) Rex V. Rowland," R. & M. N. P. R. 491, Abbott, C. J. (A) Reg. V. Murphy.'- 8 0. & P. 297. (i) Rex v. King,'' 2 Chitty Rep. 121. {k) Rex V. Krochl and others,' 2 Stark. N. P. R. 343. »P"ag. Com. Law Reps, xxxii. 579. •> lb. iii. 375. "^ lb. xxi. 471. d lb. xxxiv. 379. « lb. xviil. 313. Change of venue. Point re- specting cross-ex- amination whore one defendant only calls witnesses. If the jury convict of so much of a count as amounts to an indict- able of- fence, judg- ment may be passed on the de- fendants. CHAP. II.] PUNISHMENT. 704 to prove so much of the charge as constitutes an offence punishable by law; and the jury had found the defendants guilty of conspiring to pre- fer an indictment for the purpose of extorting money, and that is a mis- demeanor whether the charge were or were not false. (^) In former times, persons convicted of a conspiracy at the suit of the Punish- king, to accuse another person of a capital offence, were liable to receive ™®°*' what was called a viUanous judgment, that is to lose their libcram Icfjcm, whereby they were discredited and disabled as jurors, or wit- nesses ; to forfeit their goods and chattels, and lands for life; to have those lands wasted, their iiouses rased, their trees rooted up, and their bodies committed to prison. (»i) But this judgment was not inflicted upon those who were convicted only of conspiracies of a less aggravated kind, at the suit of the party : and for some time past it appears to have been the better opinion, that the vilianous judgment is by long disuse become obsolete, not having been pronounced for some ages; and that the punishment for conspiracies in general is, as in the case of other misdemeanors, by fine, imprisonment and sureties for the good behaviour at the discretion of the court. (n) *A consequence of the attaint of conspiracy, where the party was *705 subject to the vilianous judgment, appears to have been incompetency Incompo- as a witness. (o) A party, therefore, convicted of a conspiracy to bribe witness, witnesses, on an information against the revenue laws, not to appear before the justices of the peace, is incorapetent.(/j) But this consequence seems not to have attached to other cases of conspiracy at the suit of the party. (f^) And in a late case in the Admiralty Court, which under- went much discussion, Sir W. Scott determined, on great consideration, that a conviction for a con.spiracy to commit a fraud would not render an aflSdavit of the convict inadmissible. (r) In conclusion of this chapter, it may be mentioned, that, after a con- All tho dc- viction for a conspiracy, the defendants must be present in court when ''^°^''°*^ a motion is made on their behalf, in arrest of judgment. (.s) And also, present in that upon a motion for a new trial, after such conviction, all the '^''"'''' ."''"!* If, , /.I'- rr • /•* motion in (Icienuants must be present. (<) And it is not a sutiicient excuse tor arro.-'^'' (I) Rex V. IIollingbcrry,» 4 B. & C. 329. G D. & R. 345. \vi) 1 Hfiwk. P. C. c. 72, s. 9. 4 Bla. Com. 136. («) M. it)i(l. The pillory was also very commonly a part of the punishment until taken away by the 56 Geo. 3, c. 138. See also, ante, p. 069, note [d). In a case where the de- fendants were convicted on an information for a con.spiracy to take away the character of one Kcmpe, and accuse him of murder, l)y i)rctcnded conversations and communications with a ghost that answered Ijy knocking and scratching in ('ock-lane, &c., they received the following juilgment: Richard Parsons, (tiie father of the child, who was the principal agent in tiic i)retendcd communication,) to stand thrice in the pillory, and be imprisoned two years; KHz. Parsons, the mother, to be imprisoned one year ; Mary Fraser, a servant, who was aiding and assisting, was sent to the house of correction, to hard labour for six mouths; Moore, the curate of the parish, and one James, were discharged on paying the prosecutor 300^ and his costs, which were nearly as much more. Brown, who hail i)ublished a narrative, and one Day, the printer of a newspaper, had previously made their peace with the pro- secutor. (o) Co. Lit. 6 6. 2 Hale, 277. 1 Hawk. P. C. c. 72, s. 9. 1 Phil. Evid. 17. ip) Bushel t'. Barrett,'' R. & M. N. P. R. 434. Gasclee, J., and Littledale, J. [q) 2 Hale, 277. Garth. 416. 1 Hawk. P. C. c. 72, s. 9. (r) In the case of the Ville de Varsovie and others, 1817, 2 Dods. Adm. R. 174. 1 Phil, on Evid. 18. (.■!) Rex /'. Ppragg and another, 2 Burr. 929. 1 Bla. R. 209. {() Rex )'. Teal and another, 11 East, 307. Rex v. Askew, 3 M. & S. 9. Rex c. Lord Cochrane, 3 M. & S. 10. » Eng. Com. Law Reps. x. 346. *» lb, xxi. 483. Vol. II.— 46 705 or for a uow trial. OF THREATS AND THREATENING LETTERS. [book V. custody on criminal process, tlie case would be diiFercnt, for then they might be charged with the conspiracy also.(?t) But where an indict- ment has been removed into the Court of King's Bench, after verdict, but before judgment, and set down for argument, it does not appear to be necessary, that the defendants should appear in court upon the argu- ment, the proceeding being in the nature of a special verdict, and the party not being considered as convicted, until after the court have deter- mined upon the verdict. (i-) 706 ^CHAPTER THE THIRD. OF THREATS, AND THREATENING LETTERS. Throats at common law. It is said, that the dispersing of hills of menace threatening destruc- tion to the lives or properties of those to whom they were addressed, for the purpose of extorting money, is, at common law, a high misdemeanor, punishable by fine and imprisonment. (aA"!" Threats directed against persons immediately under the protection of a court are offences punish- able by fine and imprisonment, as if a man threaten his adversary for suing him, a counsellor or attorney for being employed against him, a juror for his verdict, or a gaoler or other ministerial officer for keeping him in his custody, and properly executing his duty.(Z^) And a prece- dent is given of an indictment at common law against the attorney of a plaintiff in a cause for writing a letter to the attorney of the defendant, who had obtained a verdict on the evidence of his son, threatening to indict the sou for perjury unless the defendant gave up the benefit of the verdict. (c) But it was holden in a modern case, that threatening by letter or otherwise to put in motion a prosecution by a public officer to recover penalties for selling Friar's Balsam, without a stamp, (which by the 42 Geo. 3, c. 56, is prohibited to be vended without a stamped label) for the purpose of obtaining money to stay the prosecution, was not such a threat as a firm and prudent man might not be expected to resist, and, therefore, was not in itself an indictable offence at common laiv, although it was alleged that the money was obtained, no reference being made -tamp" Vol- to any statute which prohibits such attempt. In this case Lord Ellen- den not to borough, C. J., said, " To obtain money under a threat of any kind, or able. ' to attempt to do it, is, no doubt, and immoral action ; but to make it Butwhero indictable, the threat must be of such a nature as is calculated to over- is calcu-^ come a firm and prudent man. Now, the threat used by the defendant lated to at its utmost extent was no more than that he would charge the party overcome a ^jflj ^,gj.j.gj^ penalties for selling medicines without a stamp. That is hrmand • * o r prudent Bot such a threat as a farm and prudent man might not, and ought not, (m) Rex V. Hollingberry,* 4 B. & C. 329. G D. & R. 345. (v) Rex V. Nichols, 2 Str. 1227. (a) 1 Hawk. P. C. c. 53. s. 1. Reference is made to 1 Hale, 567, but gu. the reference. (b) 4 Bla. Com. 126. (c) 2 Chit. Crim. L. 149. f [Threats of great bodily harm, accompanied by acts showing a formed intention to put them in execution, if intended to put the person threatened in fear of their execution, and if they have tliat effect, and are calculated to produce that effect upon a person of ordinary tirmr.ess, constitute a breach of the public i)eace, -which is punishable by indictment. State V. Benedict, 11 Vermont, 236.] * Eng. Com. Law Reps. x. 346. Rex V. Souther- ton. Threaten- ing to charge a party VFith penalties for selling medicines without a CHAP. III.] OF THREATS AND THREATENING LETTERS. 70G to have resisted. Then wliat authority is there fur considering these as l"""^ '' i'' offences at commou law ? The principal case relied on is that of Ilex V. Woodward and others, (rZ) which was where the defendants, having another man in their actual custody at the time, threatened to carry him to *gaol, upon a charge of perjury; and obtained money from him un- "707 der that threat, in order to permit his release. Was not that an actual duress, such as would have avoided a bond given under the same cir- cumstances ? But that is very unlike the present case, which is that of a mere threat to put process in a penal action in force against the party. The law distinguishes between threats of actual violence against the person, or such other threats as a man of common firmness cannot stand against, and other sorts of threats. iMoucy obtained in the former cases, under the influence of such threats, may amount to robbery; but not so in cases of threats of other kinds. IJut this is a case of threat- ening, and not of deceit ; and it must be a threat of such a kind as will sustain an indictment at common law, cither according to one case, at- tended with duress, or, according to others, such as may overcome the ordinary free will of a firm man, and induce him from fear to part with his money. The present case is nothing like any of those ; it is a mere threat to bring an action, which a man of ordinary firmness might have resisted." (c) It appears that, according to the principles laid down in this case, an indictment will lie, at commou law, for extorting money by actual du- resf, or by such threats as commou firmness is not capable of resisting. Therefore, where money is extorted from a party by the threat of ac- cusing him of an unnatural crime, and from the circumstances of the case the offence does not amount to robbery. (/) there seems no rea- son to doubt but that it is indictable as a misdemeanor at common law.(/'/) Demanding property with menaces, with intent to steal; accusing, or offences by threatening to accuse of an infamous crime with an intent to extort pro- ^'^'''"''^'^• pcrty, and by such accusation or threat actually extorting ; the sending or delivering of a threatening letter, or writing to any person, thereby threatening to kill or murder, or to burn or destroy, or thereby with menaces demanding property; accusing, or threatening to accuse, or sending or delivering a letter, &c., accusing or threatening to accuse of certain crimes with intent to extort mone}', &c., arc offences of the de- gree of felony by the provisions of recent statutes. The 4 Geo. 4, c. 54, s. 3, recites, that whereas by the 9 Geo. 1, c. 4 Geo. 4, 22, s. 1, it is enacted, " that if any person or persons shall knowingly ^- ^.*' *• "^• send any letter without any name subscribed thereto, or signed with aoeo. i, c. fictitious name, demanding money, venisun, or other valuable thing, or 22; shall forcibly rescue any person being lawfully in custody of any officer or other person for any such offence, or shall, by gift or promise of money or other reward, procure any of his majesty's subjects to join him or them in any such unlawful act, every person so offending, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall suffer death, as in cases of felony without benefit of clergy ;" and '\"*^ ^l whereas by the 27 Geo. 2, c. 15, it is among other things enacted, << that 15 ; ' [d) 11 Mod. l."!?, more fully stated in 6 East, R.. 133, 134. (e) Rex V. Southcrton, 2 East R., 12G, 140. And see vol. 1, p. 133. (/) Ante, vol. 1, p. 884, ct scq. Iff) See a precedent in 3 Chit. Crim. L. 841. 707 OF THREATS AND THREATENING LETTERS. [BOOK V. if any person or persons shall knowingly send any letter, without any name subscribed thereto, or signed with a iictitious name or names, let- *708 tor or letters, threatening to kill *or murder any of his majesty's sub- ject or subjects, or to burn their houses, outhouses, barns, stacks of corn or grain, hay or straw, though no money or venison, or other valuable thing, shall be demanded in or by such letter or letters, or shall forcibly rescue any person being lawfully in custody of any officer or other per- son for the said offences, every person so offending, being thereof law- fully convicted, shall be adjudged guilty of felony, and shall suffer death as in cases of felony, without benefit of clergy ;" and whereas by the n.nd 30 30 Geo. 2, c. 24, s. 1, it is among other things enacted, " that all per- 2^^ ' ' ' sons who shall knowingly send or deliver any letter or writing, with or without a name or names subscribed thereto, or signed with a fictitious name or names, letter or letters, threatening to accuse any person of any crime punishable bylaw with death, transportation, pillory, or any other infamous punishment, with a view or intent to extort or gain money, goods, wares, or merchandises from the person or persons so threatened to be accused, shall be deemed offenders against law and the public peace, and the court before whom such offender or offenders shall be tried, shall, in case he, she, or they shall be convicted of any of the said offences, order such offender or offenders to be fined and imprisoned, or be put in the pillory, or publicly whipped, or to be transported for the term of seven years, as the court, in which any such offender or And the ex- offenders shall be convicted, shall think fit and order; and whereas it is aVsser''^'' expedient that a lesser degree of punishment should be provided for the punish- offence of sending threatening letters, in the cases mentioned in the two ment, &c. gj.g(. recited acts, and that the same degree of punishment should be in- flicted in the cases mentioned in the last recited act, and be extended to persons accessory to the said offences;" and then enacts, that so much of the said recited acts as relates to the sending and delivering; letters in the cases therein respectively mentioned shall be repealed, and that And enaets (t if any person shall knowingly and willfully send or deliver any let- ino- or de- ^^^ °^' Writing, with or without any name or signature subscribed there- livering to, or with a fictitious name or signature, (demanding money or other threaten- "^^^^u^^le thing,) or threatening to kill or murder any of his majesty's ing letters subjects, or to burn or destroy his or their houses, outhouses, barns, shcTl"b'°°' '^*'^^'^^ ^^ ^'^^^ ^^ grain, hay or straw, (or shall knowingly and wilfully felonies send or deliver any such letter or writing threatening to accuse any of punishable ijjg majesty's subjects of any crime punishable with death, transporta- pertation, tion, or pillory, or of any infamous crime, with a view or intent to ex- ^^••- tort or gain money, security for money, goods or chattels, wares, or mer- chandise, from the person or persons so threatening,) or shall procure, counsel, aid or abet the commission of the said offences, or of any of them, or shall forcibly rescue any person being lawfully in custody of any officer or other person for any of the said offences : every person so offending, being thereof lawfully convicted, shall be adjudged guilty of felony, and shall be liable, at the discretion of the court, to be trans- ported beyond the seas for life, or for such term not less than seven years, as the court shall adjudge, or to be imprisoned only, or to be im- prisoned and kept to Inrd labour in the common gaol or house of cor- rection for any term not exceeding seven years. "(//) (h) The 4 Geo. 4, c. 54, cjiitains no c.vpr s? provision for the punishment of accessories CHAP. III.] OP THREATS AND THREATENING LETTERS. *T00 *This statute contained other enactments, but the clause which pro- vitled for tiie punishment of persons who might send letters, &c., threat- ening to accuse of any infamous crime, received a construction which caused the G Geo. 4, c. 19, to be passed for the purpose of extending the signification of those words. (t) The latter statute was, however, re- pealed by the 7 & 8 Geo. 4, c. 27, which also repeals the 4 Geo. 4, c. 54, " except so far as it relates to any person who shall send or deliver any letter or writing, threatening to kill or murder, or to burn or de- stroy as therein mentioned, or shall be accessory to any such ofiFence, or shall forcibly rescue any person being lawfully in custody for any such offence." The 7 & 8 Geo. 4, c. '29, contained several enactments relating to de- mands of property or money, acorn panied with menaces or force, and obtaining the property or money by threatening to accuse of an infa- mous crime, but these provisions were repealed by the 1 Vict. c. 87, The 7 & 8 Geo. 4, c. 29, s. 8, which is still in force, enacts, << that if 7 a 8 Oo. any person shall knowingly send or deliver any letter or writing, de-'i- «"• 29. s- \- c wu 1 -a . V^ ^- Bending manuiug 01 any person, with menaces, and without any reasonable ori,.^(.rg p^^, probable cause, any chattel, money, or valuable security, (/r) or if any Liinins person shall accuse or threaten to accuse, or shall knowingly send or de- de'^"an'ds^or liver any letter or writing, accusing or threatening to accuse any person throat cu- of any crime punishable by law with death, tranaportation, or pillory, '"« *° "*■" or of any assault, with intent to commit any rape, or of any attempt or ty of au endeavour to commit any rape, or of any infamous crime, as hereinafter '"'^"'"'^"s ,„,., . . •<> 1 crime to denned, witli a view or intent to extort or gain irom such person an}' exturt mu- chattel, money, or valuable security, 'every such offender shall be guilty ney, &c. of felony, and, being convicted thereof, shall bo liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceed- ing four years, and, if a male, to be once, twice or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment. "(/) The ninth section, for defining what shall be an infamous crime within *710 the meaning of the act, enacts, ''that the abominable crime of buggery, ?cc. 9. committed either with mankind or with beast, and every *assault with *■ after the fact to the offence of sending threateninj^ letters, nor any for that of in-incipals in the second degree, or of accessories before or after the fact to the ofl'ence of rescuing persons in custody for any such otfence ; the principals in the second degree, therefore, are punishu- ble in the same manner as the principals in the first degree, and the accessories are puui.^^ha- ble (under the 7 ) ()«) These words were introduced into the G Geo. 4, c. 19, in consequence of the decision in Rex v. Hickman, R. & i\I. C. C. R. 3i,post, p. 716. (n) See the other sections of this statute, ante, vol. 1, p. 867. (o) See the 7 & 8 Geo. 4, c. 29, s. 5, ante, p. 73. Ip) By sec. 14, the act does not extend to Scotland. CHAP. III.] OP THREATS AND THREATENING LETTERS. 711 The offence to which these statutes apply seem to bo, I. The sending Different or delivering any letter or wi'iting threatening to kill or uiurdcr, or to Offence's, burn or destroy houses, &c. II. Demanding property with menaces, with intent to steal. III. Accusing or threatening to accuse of an in- famous crime, with intent to extort or gain, and thereby extorting or gaining. IV. Sending or delivering any letter or writing demanding, with menaces, and without any reasonable cau.se, any chattel, &c. V. Accusing or threatening to accuse any person of any of the crimes mentioned in the acts, with an intent to extort, &c. VI. Sending or delivering any letter or writing, accusing or threatening to accuse any person of any such crimes, with a like intent. ( letter stacks of corn and irrain, hay and straw. Lord Denman, C. J., asked *"""'■ , . . , /. 1 II 1 • 1 1 ainountod the jury in the terms oi the statute, wliethcr this was a letter threat- to such ening to put J. Belcher to death, or to burn and destroy his houses, threat. outhouses, barns, stacks of corn and grain, hay and straw? The jury * ^^ negatived the threat to put him to death, but found that the letter threatened to fire his houses, outhouses, barns, stacks of corn and grain, hay and straw. Lord Denman, C. J., had some doubts whether this ([uestion ought to have been left to the jury, and whether the letter could be in point of law a threatening letter, to the effect found; but (m) It is said that by this was undcr.-tooil " settings or Icttings," and that the whole letter was evidently the production of an illiterate person, being falsely spelt nearly throughout. 2 East, P. C. c. 23, p. 1115, note (a). (i') In 2 East, ibid., the learned writer says, that the word at this point was unintelligible in his copy. (w) Ilex t'. Jcpson and Springett, cor. Lord Kenyon, C. J., Essex Sum. Ass. 1798, and con- sidered by the Judges in Mich. T. 1798. 2 East, P. C. c. 23, s. 2, p. 1115. 716 OF THREATS AND THREATENING LETTERS. [bOOK V. upon a case reserved, the judges held the conviction good after vcr- dict.(,x) Under the A letter threatening to accuse the prosecutor of having made over- * ^?°' \ tures to the prisoner to commit sodomy with him, did not threaten to " h' ' ' charge such an infamous crime as to be within the 4 Geo. 4, c. 54, s. 3. sue crimes q^q couut of an indictment charged that the prisoner feloniously did to bV*^ send to J. Fabling a certain letter threatening to accuse the said J. Fab- deomed in- ling of the offence of making overtures to him, the prisoner, to commit lubjoctoT a so^o™y ^i*'^ ^^^ s^i^ J- T'iitiling, being an infamous offence and crime, man to in- with a view to extort money from the said J. Fabling. The letter set famous jj J ^jjjg (jQUQt contained the following passage : — '' You well know punish- ° ^ p 1 • 1 T • T ment or in- you have Several times made overtures to me, of which I can indite you capacitated QjfgQjJQjj^yj; The jury having found the prisoner guilty, Littlodale, J., from iieing reserved for the consideration of the judges the question, whether the a, witness, count should not have averred that an overture by the prosecutor to commit sodomy with the prisoner was an infamous crime ; and secondly, if it were necessary so to aver, whether the words " being an infamous offence and crime," must not be considered as relating to the words describing the complete offence which immediately preceded them, and not to the overtures to commit that crime. The judges were of opinion that a charge of making overtures to commit sodomy was not an infam- ous crime whithin this act, and they held that they were bound to take the word " infamous" in its legal sense, and that such overtures, how- ever they would disgrace and lead to detestation, would not subject the pci'son making them to an infamous punishment, or prevent his being a witness, and therefore the conviction was wrong. (y) A letter A letter intimating that some persons had conspired to burn or other- stating ^jgg (destroy the property of the prosecutor, and offering to make a dis- writer had closure if a certain sum of money was placed in a certain spot for the overheard writer, is not within the 7 & 8 Geo. 4, c. 29, s. 8, though it may create aoreeTo apprehension in the owner's mind, if it does not contain a menace. (?/^) injure the The prisoner was indicted under the 7 & 8 Geo. 4, c. 29, s. 8, for sending the^pTofo-°^ *^^^ following letter to Mr. Young, demanding money with menances : — cutor, and if ho (^ q: . would lay ' ii-ii iinii thirty " As you are a gentleman and highly respected by all who know *717 *you, I think it my duty to inform you of a conspiracy. There is a few sovereigns young men who have agreed among themselves to take from you per- tain place, sonally a sum of money, or injure your property. I have overheard all the writer the affair. I mean to say, your building property, in the manner they iTiformfi^^ have planned this dreadful undertaking, would be a most serious loss, tionto frus- They have agreed to commence this upon an appointed time in the attempt^ course of this winter, which would be a most dreadful sight. Sir, I could give every particular information how you may preserve your property and your person, and how to direct and secure the offenders. Sir, if you will lay me a purse of thirty sovereigns upon the garden edge, close to Mr. Tatler's garden gate, I will leave a letter in the place, to inform you of the night this is to take place. I can also inform you (z) Rex V. Tyler, R. & M. C. C. R. 428. (v) Rex V. Hickman, R. & M. C. C. R. 34. The word "solicitation" was introduced in the G Geo. 4, c. 19, the 7 & 8 Geo. 4, c. 29, s. 9, and the 1 Vict. c. 87, s. 4, to meet this case. Anotherpoint, on which the judges were equally divided, was whether the letter supported a a count for sending a letter demanding money from the prosecutor. {t/i/) MSS. Bayley, J. 3 Burn. J. D. & ^Yms. 50G. CHAP, in.] OP THREATS AND THREATENING LETTERS. 717 how you could l)e sure to secure the oftenders ; but you must keep all this quite secret, and not make a talk of it, as it would come to their ears, and then they would put it oflP to another time. Sir, I hope you will not attempt to seize upon me, when I come to take up the money and lay down the note of information. Sir, you will find I am doing you a most serious favour. You will please excuse ine in not describing my name, but I will make myself known the day after you have taken them, and bo a witness against them. I shall come to lay down my letter on the 1st of December if I find the money. Sir, T am your un- known friend." It appeared that the prisoner had written the letter, and had done so with an intention of getting the thirty sovereigns to leave the country. For the prosecution it was contended that the letter contained a suffi- cient demand of money, as the request was accompanied by a condition, namely, to discover persons going to do a certain act, and liobinson's case(~) was cited. And with respect to the menaces, to hold that the letter contained none, would be equivalent to holding that, whenever the menaces came from one person, and the letter from another, neither could be indicted; and, at all events, it was a question for the jury whether the letter did contain menaces. Gird wood's case, (a) Bolland, B., thought that he ought to decide whether the letter contained menaces or not ; but he consulted Littledale, J., who thought the question should be left to the jury ; and Bolland, B., then left it to the jury to say, whether the letter contained menaces, and they convicted the prisoner ; but, upon a case reserved, the judges were of opinion that the convic- tion was wrong.(A) An indictment on the 4 Geo. 4, c. 54, for sending a letter threatening Letter con- to kill and murder 11, Collier, set out the letter as follows : — tiumnfr a ' threat to murder. " Sir, "You are a rogue, thief, and vagabond, and, if you had your deserts, you should not live tlie week out; I shall be with you shortly, and then you shall napi it, my banker. Have a care, *oId chap, or you shall dis- *718 gorge some of your ill-gotten gains, watches, and cash that you have robbed the widows and fatherless of. Don't make light of this, or I'll make light of you and yours. I am your " CUT-TUROAT." '^larch 15th, 1831." It was objected that there was nothing in the letter which imported a throat to kill and murder Mr. C. ; it was all hypothetical, and the signa- ture < 1111 Oil- Buller, J., in delivering the opinion of the judges on this point said, //'(/» only, '< Whether the letter be with or without a name is a simple fact appear- "!",^ '^"°' '■ ' ' siuered as ing on the face of the letter itself. It is signed with two letters, 11. 11., uioitor which are so far from bcine; a name, that no man on looking at the letter without a nil inc. only can tell whether it meant to refer to any name, or what that name within tho was."(/() 9 tSco. 1, c. In a case where the indictment, which was framed upon the 30 Geo. 2, c. 24, charged the prisoner with sending a threatening letter, intend- j^^^'j^'^j'^.^^^^^ ing " to extort and gain money," it was holden not to be supported by extort mo- evidcnce of a letter threatening to accuse the pro.secutor of an unnatural "yf "^^^gj crime if he did not give up a certain hill drawn by the prisoner, and of by proof of which the prosecutor was the holder.(0 "" »"*«•"' t«. In a ca.se where a question arose whether there was sutncient evi-bin of ex- dence of the prisoner's having sent the letter in question, knowing its fi>""gc- contents, the fjicts were that the prosecutor proved the receipt of the j^"^"*'!"? a letter, by the penny post, at his house, in a street near Berkeley-square, knowing in the county of Middlesex ; and his tracing; it up to one Elizabeth ""^ •""- . . tents. Robinson, who swore that she was employed in *going errands for the if'-cta prisoners in Newgate, and that having received this letter from the prisoner's hands at the grate at Newgate she immediately carried it to the post-office in Newgate-street. And the servant of the office-keeper confirmed her account, and both swore to the identity of the letter, the direction being in a remarkable hand. The case was left to the jury with a direction to consider whether from the prisoner's delivering the letter he knew the contents of it; and the jury, having found the pri- soner guilty, the question was submitted to the consideration of the judges, whether there were sufficient evidence to be left to the jury of the prisoner's sending the letter knowing the contents? The judges held that the conviction was right. (_/) The prisoners, who were husband and wife, were indicted on the 9 Where tho Ceo. 1, c. 22, and the 27 Geo. 2, c. 15, for feloniously sending a threat- «i<"p"«t« cning letter to their master, demanding 10/. The wife wrote the letter, m^ i-tter, and it was delivered to the prosecutor by the husband, who said he found -""i 'iio • • I I 111 -1 1111 liiisband It in the prosecutor s garden ; but there was no evidence that he had curried it any knowledge of its contents. It was objected on bohalf of the pri- 1" 'lie r"""- (g) Rex V. Robinson, 2 M. k Rob. 14. 2 Lew. 2T3. (A) Robinson's case, 2 Leach, 749. 2 East, P. C. c. 23, s. 3, p. 1110. Ante, p. Til. («•) iMajor's case, 0. B. 1796, and Mich. T. 1796. 2 Leach, 772. 2 East, P. C. c. 2.1, s. 3, p. 1118. (y) Girdwood's case, O. R. 1770, Easter T. 177G. 1 Leach, 142. 2 East, P. C. c. 23, s. 4, p. 1120. Ante, p. 714. 720 OF THREATS AND THREATENING LETTERS. [BOOK V. ty threaten- soncrs that thc offencc described by the statutes on which the indict- that the laeofc was founded, was <' knowingly sending a threatening letter," husband, whereas the evidence only showed that the wife had written the letter, *^?"o^ and that the husband had delivered it, and that there was no proof of privy to . . ' ^ thewriting, its having been sent to the prosecutor. The court (Ashurst, J., and ■was not Perryn, B.,) agreed that merely writin"; a threatening letter would not withm the • V ^ . , . / ° ^ ,. ° , 9 Geo. 1, c. constitute the onence wituin these acts oi parliament ; that carrying a 22, or 27 letter could not be comprehended under the word " send," in the sta- 15 iior tutes; that the legislature had it not in contemplation that any person could the would be the carrier of a threatening letter which he himself had writ- beconvTcT- ^'^^ ^"^ contrived, and that the act of delivering a threatening letter was ed unless not^,the ofFence described in those statutes. That if any doubt could be she wrote entertained upon that point the lemslature itself had removed it, for by and sent it ^ "^ ° . . without the the Subsequent act, 30 Greo. 2, c. 24, the oiience of delivering as well husband ^s sending a threatening letter was made a misdemeanor, punishable at D0iD2r privv . . to the con- ^^le discretion of the court, according to the circumstances of the case. tents. But the court further observed, that there was still a question for the consideration of the jury, for though M. H. were the wife of the other prisoner, yet if the jury were of opinion that she wrote the letter itself without any intervention of her husband, and sent it by him, without his knowing anything of the contents, to the prosecutor, she alone might be found guilty; but that otherwise both the prisoners must be acquitted. (/»;) Sending In a case where the prisoners were indicted for sending a letter, the by\hepost P^'oo^ ^^^ that the letter was of the handwriting of one of the prisoners, or by in- and that it was thrown by the other prisoner into the yard of the prose- ^^ cutor, from whence it was taken by a servant of the prosecutor, and means. delivered to him.f/] And in another case the proof was that the letter in question was in the handwriting of the prisoner who sent it to the *721 post-office from whence it was sent in *the usual manner to the prose- cutor. (??i) In another case, where it was proved that the prisoner dropped the letter into a vestry-room, which the prosecutor frequented every Sunday morning, before service began, from whence the sexton had picked it up, and delivered it to him, the learned judge said that it seemed to be very immaterial whether the letter were sent directly to the prosecutor, or were put into a more oblique course of conveyancOj by which it might finally come to his hands. (/A And in a subsequent case it was holden that dropping a letter in a person's way, in order that such person might pick it up, was a sending/ of the letter to such (k) Rex V. John and Mary Hammond, 1 Leach, 444. (I) Rex V. Jepson and Spriugett, cor. Lord Kenyon, C. ^J., Essex Sum. Ass. 1798, and Michaelmas T. 1798. 2 East, P. C. c, 23, s. 2, p. 1115. Ante, p. 715. (m) Heming's case, cor. Chambre, J., Warwick Sum. Ass. 1799. 2 East, P. C. c. 23, s.2, p. 1116. (w) Lloj-d's case, cor. Yates, J., Hereford Spr. Ass. 1767. 2 East, P. C. c. 23, s. 5, p. 1122. The case was submitted to the consideration of the judges on another point, on which the indictment was holden to be defective (see post, f. 722), so that it became unnecessary for them to give any opinion on the point above stated. In 2 East, P. G.itU supra, the learned writer in note (a) says, " Qu. Mhether, if one intentionally put a letter in a place where it is likely to be seen and read by the party for whom it is intended, or to be found by some other person, who it is expected will forward it to such party, and the letter do accordingly reach its intend- ed destination, this may not be said to be a sending to such party, supposing such an allega- tion to be necessary upon the true construction of the acts? The same sort of evidence was given in Springett's case, [ante, p. 720,) in support of the allegation of sending a threatening letter to the prosecutor and no objection was made on that ground. And the general current of precedents is in. the same form." CHAP. III.] OF THREATS AND THREATENING LETTERS. 721 person. (o) In a case upon the repealed clauses of the *27 Geo. 2, c. 15, T'>e leitcr it was decided, that in order to bring the offence within that clause it "^."^ it,\uo was necessary to prove that the letter was sent to the person threatened; person and also that sending it to A., in order that he might deliver it to B., ^.j'"''*'*'"' was a sending it to U., if it were so delivered. A letter, threatening to burn the house of Rodwcll, and the stacks of lirook, was sent to Kirby, and the indictment charged the sending it to Kirby. Upon a cafe re- served, the judges held that a sending to Kirby, as Kirb}' was not threatened, was not within the statute; and upon that account the judgment was arrested; but they intimated, that if Kirby had delivered it to llodwell or Brook, and a jury should think that the prisoner in- tended he should so deliver it, this would be a sending by the prisoner to ]{od\vell or Brook, and wnuld support a charge to that effect. (;>) Where a prisoner was indicted under the 4 Geo. 4, c. 54, for sending Kvi'lonco a threatening letter to the prosecutor, and the only evidence against him a'^iyl'i"^'"^ was his own statement that he should never have written the letter but for W. Goodes; Lord Abinger, C. B., held that there was no evidence of the prisoner having scut the letter; as upon this evidence Goodes might have taken the letter or might have sent it himself, having made the prisoner write it; and there was no evidence of the prisoner having directed Goodes to take it.(<^) It was decided, upon reference to the judges, that it was necessary to Tho indict- set forth the threatening letter in the indictment, in order that the court ™®°^™"^ might see whether it fell within the purview of the respective statutes, the letter. It was contended in support of the indictment, upon which the point was raised, that it pursued the words of the 9 Geo. 1, c. 22, (now re- pealed) that the defendant was charged with ^sending the letter <' fclo- *722 niously and contrary to the form of the statute;" and that those words imported that the letter was of such a nature as the statute had in view. But the judges were of opinion that the indictment was bad in not setting forth the letter itself: and that if the words "feloniously and contrary to the form of the statute," were allowed to supply the place of the letter, it would be leaving it to the prosecutor to put his own interpre- tation upon it, and to the jury the construction of the matter of law.(r) An indictment on the 4 Geo. 4, c. 54, s. 5, charged that the pri.son- Indict - crs did feloniously with intent to extort money, charge and accu.sc J. N. {'i',re,U(!'n. with having committed the horrible and detestable crime, (fcc, and did ing to pro- feloniously, with intent to extort, &c., menace and threaten to prosecute the y^,^"!)'!,"' said J. N- for the said pretended offence; it was objected that the charge alrei^Jy contained in the indictment was not within the terms of the 4 Geo. 4 mn^c in- .,_,., ,. , 1 I • • 1 sufficient, c. 54, s. 5, which applied only to threatening to accuse prospectively, and not to a threat to prosecute a charge antecedently made ; and Garrow, ]>., after consulting Burroughs, J., held that the objection must prevail. If the indictment had followed the terms of the statute, and it had been proved that the prisoners had threatened to prosecute J. N., the case would have been left to the jury to say whether that was not a {<,) Rex V. Wngstaff, Mich. T. 1819, Russ. k Ry. 398. (;>) Rex V. Paddle, Ea.st. T. 1822, Russ. & Ry. 484. And it seems from this case, that it must appear upon the indictment that the letter was sent tothe party threatened. Hcc Rcg. V. ISnrrid^e, ante, p. 719. (q) Re.x '-. Howe,» 7 C. k P. 2G8. (r) Lloyd's Case, ante, note (n). And the law of this case was recognized by Grose, J., ia delivering the opinion of the twelve judges in Hunter's Case, 2 Leach, G31. * Eng. Com. Law Reps, xxxii. 506. Vol. II.— 47 722 OF THREATS AND THREATENING LETTERS. [BOOK V. threatening to accuse him. But the offence laid in the indictment was not suflBcieutly charged under the statute. (s) We have seen that it has been held that an indictment under the 4 Geo. 4, c. 54, e. 5, (now repealed) for demanding money with menaces, must have stated from whom the money was demanded, and that an in- dictment on the same section for threatening to accuse, &c., must have stated who was threatened. ((!) The intent It was also held to be necessary that the indictment should allege the "^ ^^ Yl'*" i^*^^^ 0^ ^^^ writer in sending the letter consistent with and deducible be alleged from the letter itself. In a case already mentioned, where the indict- correctly. jQcnt charged that the letter was sent to extort money ^ and it appeared upon the face of the letter that it was sent with the view of inducing the prosecutor to give up a bill of exchange, the judges held the allega- tion not to be sustained. (vt) Variance in If the indictment state the offence of which the prisoner threatened alicffelTto *° accuse the prosecutor, it must state it correctly. There were several Lave been counts in an indictment, charging the prisoner with threatening to ac- threatened. ^^^^ ^^ prosecutor of the crime of sodomy, and it appeared to Little- dale, J., that the letter written by the prisoner only imputed to the pro- secutor that he had solicited the prisoner to permit him to commit that crime, he therefore directed the jury to acquit the prisoner on those counts. (v) Place The 9 Greo. 1, c. 22, provided that offences against that act might be where the ^pjg^j Jq ^ny county in England ; but no such provision being made with maybe respect to offences within the other repealed statutes, the trial of such tried. offences was governed by the ^general rule. Upon this rule the trial TliO niight be in the county in which the prosecutor received the letter by the post, though delivered by the prisoner and put into the post in another county. (%>) And it seems that the offender might be tried in the county in which he sent the letter, though the prosecutor received it in another county. The offence of sending a threatening letter, would seem to be complete, as far as depends on the offender, by his putting the letter into the post-office to go into another county ; though the party to whom it is sent afterwards receives it in the latter county. (.7;) The Post-office post- office marks in town or country, proved to be such, are evidence marks. ^j^^|. ^.j^g letters on which they appear were in the office to which those marks belong at the dates which the marks specify ;(^) but a mark of double postage paid on any such letter is not of itself evidence that the letter contained an inclosure.(s) (s) Rex V. Abgood,* 2 C. & P. 436. See Gill's Case, 1 Lew. 305, ante, p. 718. {t) Rex V. Dunckley, R. & M. C. C. R. 90, ante, vol. 1, p. 768. iu) Major's Case, ante, p. 719. (i>) Rex v. Hickman, R. & M. C. C. R. 34. [iv) Girdwood's Case, 1 Leach, 142. 2 East, P. C. c. 23, s. 4, p. 1120, ante, p. 714, where the letter was received by the prosecutor in Middlesex, and the trial had in that county, though the letter was delivered by the prisoner to a woman in London, and by her put into the office which was also in London. Esser's case, 2 East, P. C. c. 23, s. 7, p. 1125, where the offence was laid in Middlesex, though the letter was dated from Maidstone, in Kent, and sent by the post from Maidstone ; and Lord Mansfield held that as the letter was directed to the prosecutor in Middlesex, where it was delivered, that was a sending in Middlesex, and that the whole was to be considered as the act of the defendant to the time of the delivery in that county. (x) 2 East, P. C. c. 23, s. 7, p. 1125. Burn's Just. tit. Lettn. And see now the 7 Geo. 4, c. 64, s. 12, ante p. 120. (7/) Perkin's Case, 1 Lew. 99, Park, J. A. J. Rex v. Burdett,'' 4 B. & A. 95. [z) Rex V. Plumer, Russ. & Ry. 264. ^ Eng. Com. Law Reps. xli. 209. ^ lb. vi. 358. CHAP. III.] OF THREATS AND THREATENING LETTERS. 723 The prisoner was tried for feloniously sending to J. S. Tucker the fol- "" nn in- lowing letter with intent to extort money from the said J. S. Tucker: — lorseiVdinK n tbroatOD- u Sir '"S '«^''^'"' ^ the priso- " You perhaps did not expect to hear from me so suddenly : but when lur's de- you turned me away from Laytonstone for a mere trifle, (that tuo at a t'''»'"'»t"J"3 time when by the late failures many scores of clerks were out of em- meaning of ploy) you forgot that I had you in my power through your transactions ^ho letter, with mo five nights following, (I have the dates and circumstances on ";i',i"'jn paper written at the time) and that from your conduct to me before I <-'vidunce. went to live with you, you could expect no mercy from mc. Did you JnenJ^ou*' not, however, let it pass? In a few words, I have taken advice upon the 4 Ooo. the subject, and know that if you arc obstinate, it is in my power to ^''^•^^'*'. bring down ruin on your head and infamy on your name. However, I a. letter will be merciful ; allow mc to return to L. in the same manner as before, jlircaten- I will never mention it again, as if I did I should lose every thing, and eule of an gain nothing ; but it is impossible for mo to get any situation in town at ini'iimous present. It is not true that 3Irs. T. advertized, as you said ; she is in uoniavJ great distress, and she is my mother, therefore I would wish to afford ?peciiied her a little relief, if possible ; so send mc five pounds to my address ; f"r the" ne which, with the other you lent me, I will I. 0. U. for, and pay when I cified get a place. If I do not hear from you by Saturday morning, you will "^^^^ the hear of it (enclosing five pounds.) Now, consider ruin and beggary on threatened one side, and wealth and comfort on the other , remember that, if you to charge arc obstinate, it will cost you all ; do as I say, it will cost you *nothing. toiTtionalh- I wait your answer before I proceed. As yet, I have given Mr. Norris be left iu no names. On Saturday night (if you are silent) I will go too far to ''V'oj. retract." (' Your's obediently, (Signed) «' James Tuckeii, Junr." The second count charged the prisoner with threatening to accuse the said J. S. Tucker of a certain infamous crime, viz., with attempting and endeavouring to commit the abominable crime of sodomy with the said J. S. Tucker, with the same intent. The third count charged him with threatening to accuse the said J. S. Tucker of an infamous crime, with the same intent. The fourth, fifth, and sixth counts were the same as the former, except that the letter was called a paper-writing, and the direction omitted. The third and sixth counts did not describe the spe- cific crime, but alleged, generally, an infamous crime. All the counts concluded against the statute, &c. Tite prosecutor, after proving the letter in question, said, that on the Saturday fullowiug the Thursday on which he received the letter, he saw the prisoner at a public house in the Strand, and that he, the prosecutor, asked him what be meant by sending him that letter, and what he meant by " transactions five nights following." The prisoner said that the prosecutor knew what he meant. The prosecutor denied it; and the prisoner afterwards said, "I mean, by taking indecent liberties with my person." The prisoner, in cross-examination, asked the prosecutor whether on his oath he could deny that he did take indecent liberties with his (prisoner's) person. [a] This is the marginal note in the case of R. & M. C. C. R., but it docs? not appear thrt i\ny such point was reserved or decided, although such a point might have arisen on the third and siith counts. C. S. G. 724 OF THREATS AND THREATENING LETTERS. [BOOK V. Tho prosecutor said he never did. Alexander, C. 13., submitted the followlug question to the judges, whether parol evidence to explain the letter was properly received '/ Adding, that without it, the prisoner could not have been convicted, and that by his cross-examination he in effect repeated the charge. And all the judges (except Littledale, J., who was absent) were unaniniouHly of opinion that such evidence was properly received, and that the conviction was proper. («) Prior and From a case which was cited in a former part of this chapter, it subsequent appears that prior and subsequent letters from the prisoner to the letters may ^^ , ^ . , . * . . , , n ^ ho given in party threatened, may be given in evidence as explanatory ot the mean- ovulence. \^g ^j^^j intent of the particular letter on which the indictment is framed, (^ij The court will, after the bill is found, upon the application of the prisoner, order the letter to be deposited with an officer, in order that the prisoner's witnesses may inspect it.(c) (a) Rex V. Tucker, R. & M. C. C. R. 134. We have seen that it has been held, on the trial of an indictment for threatening to accuse a person of an abominable crime, that the jury need not confine themselves to the consideration of the expressions used before the money was given, but may, if those expressions are equivocal, connect with them what was afterwards said by the prisoner when taken into custody. Reg. v. Kain,* 8 C. & P. IST, ante vol. 1, p. 898. (6) Robinson's case,*" ante, p. TlS. (c) Rex V. Harris, G C. & P. 105, Littledale, J., and Bolland, B. * Eng. Com. Law Rejjs. xxxiv. 347. ^ lb. xxv. 302. CHAP. I.] OP EVIDENCE. *7'25 BOOK THE SIXTH. OF EVIDENCE. CHAPTER THE FIRST. OF WHAT NATURE EVIDENCE MUST BE. OF PRESUMPTIVE EVIDENCE. — OF THE RULE THAT THE BEST POSSIBLE EVIDENCE MUST BE PRODUCED. — AND OF HEARSAY EVIDENCE. Before entering upon the subject of presumptive evidence, to which the following section will be appropriated, it may be proper to pay at- tention to a few points applicable to the law of evidence in criminal prosecutions generally. There is no difference as to the rules of evidence between criminal Rules of and civil cases. What may be received in one case may be received in '^^'"^cnco 1 1 1 1 • • 1 • 1 1 1 . -1 . . ^'"^ same in the other: and what is rejected in the one ought to be rejected in the criminal aa other. ((^') A fact must be established by the same evidence, whether it*^'^'^ cases, is to be followed by a criminal or civil consequence. (i) It is doubtful whether a bill of exceptions lies in any criminal case.(r) Bill of e.x- In one case Lord Ilardwickc mentioned it as a point not settled; and ''''''1'','°"* '"' said that a bill of exceptions had never been determined to lie in mere criminal proceedings, though he had known it allowed in informations in the Court of Exchequer. ( lb. .^li. 335. 726 or EVIDENCE. [book VI. it would be otherwise. (re) But as it has since been determined, and seems now to be settled, that where evidence, objected to on the trial of a cause, is received by the judge, and is afterwards thought by the court to be inadmissible, the losing party has a right to a new trial, on the ground that it is impossible for the court to say what eflfect such evi- dence may have produced on the jury,(y) it may well be doubted whether, if the judges were of opinion that any evidence had been im- properly admitted or rejected in a criminal case, the conviction would be supported. New trial. Where the defendant had been convicted on an indictment for felony, there can be no new trial ; but after a conviction for a misdemeanor, a new trial may be granted, at the instance of the defendant, where the justice of the case requires it :(,7)t though inferior jurisdictions cannot grant a new trial upon the merits, but only for an irregularity. (/i) Where several defendants are tried at the same time for a misdemeanor, and some are acquitted, and others convicted, the court may grant a new trial as to those convicted, if they think the conviction improper. (i) And it is a rule that all the defendants convicted upon an indictment for a misdemeanor, must be present in court when a motion is made for a new trial on behalf of any of them, unless a special ground be laid for dispensing with their attendance. (A;) No new trial can be had when the defendant is acquitted, although the acquittal was founded on the (ee) Rex V. Ball, Russ. & Ry. 0. C. R. 132. Rex v. Oldroj-d, ibid. 88, but see Rex v. narling, R. & M. C. C. R, 39. (/) Crease v Barrett, 5 Tyi'w. 458. Wright v. Doe d. Tatham,^ V A. & E. 313. De Rut- zcii V. Farr," 4 A. & E. 53. ' (ff) Rex V. Mawbey, 6 T. R. 638. Tidd, 942, 943. As to the grounds on which the appli- cation may be made, see 1 Chit. Cr. L. 654. (A) See the cases collected ou this point on note (b) to Rex v. Inhabitants of Oxford, 13 East, 416. The Court of King's Bench, in that case refused a certiorari to remove an in- dictment for a misdemeanor and proceedings thereon at the assizes, after conviction and be- fore judgment, which was prayed for the purpose of applying for a new trial, on the judge's report of the evidence, on the ground of the verdict being against evidence and the judges direction. (0 Rex V. Mawbey, 6 T. E. 619. (k) Rex V. Teal, 11 East, 30'7. Rex v. Askew, 3 M. & S. 9. f {In the United States, a new trial is granted to the prisoner, in capital cases, for any cause which would be suflScient in a civil action, or on a conviction for a misdemeanor. 3 Dallas, 515, U. States v. Fries. 1 Bay, 3T2, State v. Hopkins. iT Mass. R. 515, Common- wealth V. Green.} [For offences greater than a misdemeanor a new trial cauuot be granted. In misdemea- nors, there may where there has been a conviction, but not where there has been an ac- (juittal. People v. Comstock, 8 Wend. 549. On an indictment where a jury can convict a defendant of a lesser offence, then an acquit- tal for the major crime is a bar to a subsequent indictment for the minor offence. The State V. Standifer ^- a/., 5 Porter, 523. As if one be indicted for murder and acquitted, he could not be again indicted for manslaughter. So where one is indicted on a charge of burglary he cannot be tried again for larceny. The same individual, however, maj' at the same time, and in the same transaction, commit two or more distinct crimes, and an acquittal of one will not be a bar to punishment for the other : thus, to an indictment for an assault on J. L. with intent to murder, it cannot be pleaded in bar that defendants had previously been acquited on an indictment for the murder of L. L. The transactions inducing the indict- ment being averred to, have been identical. Ibid. To entitle the prisoner to the benefit of the plea of autrefois acquit, it is necessary that the crime charged in the last l)ill of indictment, be precisely the same with that charged in the first, and also that the first indictment be good in point of law. Hite v. The State, 9 Terger, 357. Where judgment is arrested for a defect in the indictment the prisoner is not entitled to his discharge, but may be remanded for trial upon a new indictment for the same otfence. Slate V. Holley, 1 Brevard, 35.] * Eng. Com. Law. Rep?, xxxiv. 95 ^ lb. xxxi. 20. CHAP. I. § I.] OF PRESUMPTIVE EVIDENCE. 726 misdirection of the judge ;(/) or where a verdict is found for a defendant on a plea of autrefois acquit, although that raises a collateral issue, which may have been found in favour of the defendant oq sufficient evidence. (m) SECTION I. 0/ Presumptive Evidence. When a fact itself cannot be proved, that which comes nearest to the Prosump- proof of the fact is, the proof of the circumstances that necessarily or *^'^*' "^ *'"'" CllIIlStAQ- usually attend such facts, and are called presumptions, not proofs, for tial evi- thcy stand instead of the proofs till the contrary* be proved. (h) Indence. criminal cases, from the secret manner in which guilty actions are gene- ^''i'-'i rally perpetrated, it is seldom possible to give direct evidence of the commission of the offence charged, ?'. e. to produce a witness who saw the act committed; and, therefore, recourse must necessarily be had to presumptive (or, as it is often called circumstantial) evidence, i. e. the direct evidence of circumstances, from which the commission of the act may be presumed by the jur)'.(o)| (/) Rex V. Cohen and Jacob,* 1 Stark. N. P. C. 51G. Rex v. Sutton,'' 5 B. & Ad. 52. In a prosecution for not repairing a highway, judgment has been suspended under very special circumstances after an acquittal, see vol. 1, p. 371, in the notes. (m) Rex .'. Lea,<= 2 Moo. C. C. R. 9, S. C. 7 C. k P. 83G. («) Gilb. Ev. 142. As if a man be found suddenly dead in a room, and another be found running out in haste with a bloody sword; this is a violent ])resumption that he is the mur- derer : for the blood, the weapon, and the hasty fliglit, are all the necessary concomitants to such horrid facts; and the next proof to the sight of the fact itself, is the i)roof of those cir- cumstances that do necessarily attend such fact. Ibid. Unless the wound was in such a part of the body that the deceased could not have inflicted it himself, and it was shown that no other person had been in the room, it is conceived that such a presumjition ought not to be considered as conclusive. In Ashford v. Thornton, 1 B. & Aid. 428, where the subject of jtresumption in cases of murder was much discussed, Abbott, J., said, '' A case might be put where a person should come up and find another lying wounded with a dagger in his body, and should draw it out, or should, in assisting the wounded man, wrench the knife out of the niurdorer's hand : then if the murderer escaped, leaving him with the body, according to this law [Bracton], he would 1)C considered guilty of the murder, and be immediately hanged without trial." And, "in the history of the law, several presumptions, which were at one time deemed conclusive by the courts, have, by the opinions of later judges, acting upon more cnlargcil principles, become conclusive only in the absence of proof to the con- trary, or have been treated as wholly within the discretion of juries." 1 Phill. Ev. 441. C. S. G. (o) Presumptions are often divided into three sorts, — violent, probable, and light. Co. Lit. 6 6. 3 Bla. Com. 371. But such a classification seems altogether useless, and the dis- tinction to amount to nothing more tiian in one case the presvimptive evidence may be very strong, in another less so, and in another very weak. f j Proof that a person conspired to commit a murder subsequently perpetrated is not in itself to be taken as a legal presumption of his having aided ; but it is to be weighed as evi- dence tending to i)rove that fact. But if it is proved that there was a conspiracy, and that one of the conspirators was in ;i situation in which he might have given aid to the perpetrator at the time of the murder, it is a legal presumption that he was there to carry into effect the preconcerted crime ; and it is for him to rebut the presumption by sliowing that he was there for a jiurpose unconnected with the conspiracy. 9 Pick. 49G. Commonwealth v. Knapp.} [tin the trial of criminal cases, mathematical or metaphysical certainty, or direct and irrefragable evidence is not necessary ; all that the law requires is moral certainty ; that » Eng. Com. Law Reps. ii. 491. *■ lb. xxvii. 31. ' lb. xxxii. 761. 727 OF EVIDENCE. [bOOK VI. Wlmtcir- Where an indictment for murder was supported entirely by circum- thil'ovu' stantiul evidence, and there was no fact which, taken alone, amounted (Jonco is to a presumption of guilt, Aldersou, B., told the jury that before they siiflieiont to gQyjj fjjjj i\^q prisoner cuiltv, they must be satisfied " not only that those warrant a . '^ ° . "^ . , , . , . -ii -l conviction, circumstanccs -were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion then that the prisoner was the guilty person;" and he then pointed out to them the proncness of the human mind to look for, and often slightly to distort the facts in order to esta- blish such a proposition, forgetting that a single circumstance, which is inconsistent with such a conclusion, is of more importance than all the rest, inasmuch as it destroys the hypothesis of guilt. (p) There is no difference betvv^een civil and criminal cases, with reference to the modes of proof by direct or circumstautial evidence, except that in the former, where civil rights are ascertained, a less degree of proba- bility may be safely adopted as a ground of judgment, than in the latter, which affect life and liberty. (^)f *728 One of the most usual presumptions in criminal prosecutions occurs Instances jq cases of larceny, where upon proof of the felony having *becn com- tioDs." mitted, and of the property stolen having been shortly afterwards found (p) Hodge's case, 2 Lew. 227. See the very able observations on this subject, 1 Stark, Ev. 558, et seq. (q) 1 Phil. Ev. 196, 7 edit. Perhaps strong circumstantial evidence in cases of crimes, committed for the most part in secret, is the most satisfactory of anj^ from whence to draw the conclusion of guilt ; for men may be seduced to perjury by many base motives, to which the secret nature of the offence may sometimes afibrd a temptation ; but it can scarcely happen that many circumstances, especiall}^ if they be such over which the accuser could have no control, forming altogether the links of a transaction, should all unfortunately concur to fix the presumption of guilt on an individual, and yet such a conclusion be erro- neous. 1 East, P. C. c. 5, s. 9, p. 223. the jury, whether the evidence be positive or presumptive, should be satisfied of the de- fendant's guilt. Giles v. The State, 6 Georgia, 276. Circumstantial evidence has been received in every age of the common law, and is to be acted on after it has generated full conviction : everything calculated to elucidate the trans- action should be admitted, since the conclusion depends on a number of links, which alone are weak, but taken together are strong and able to conclude. 3IcCann v. The State, 13 Smedes & Marshall, 471.] f [On the trial of an indictment the jury were instructed, that when the government have made out ?i. prima facie case, it is incumbent on the defendant to restore himself to that pre- sumption of innocence in which he was at the commencement of the trial. It was held, that this was erroneous, and that the jury should have been instructed that the burthen of proof was upon the Commonwealth to prove the guilt of the defendant; that he was to be presumed innocent unless the whole evidence in the case satisfied them that he was guilty. Commonwealth v. Kimball, 24 Pick. 366. A recent possession of stolen goods makes out a prima facie case of guilt, and a conviction must follow in the absence of explanatory or con- tradictory proof. Iluyhen v. The State, 8 Humphreys, 75. After evidence of a larceny has been given, on the trial of an indictment for stealing a package of bank bills in December, it was held that evidence that two of the bills (which were identified) each of the denomination of one hundred dollars, were in the defendant's possession, one of them in March, and the other in April following, might be submitted to the jury, and tliat they might infer therefrom, and from accompanying circumstances, that he stole the whole package. Held also, that although none of the stolen bills were identi- fied, yet that evidence Avas admissible to prove that the defendant, after the larceny, was in possession of two one hundred dollar bills, like those that were proved to have been stolen, p.nd also a large amount of other bank bills; and that such evidence, together with evidence that the defendant was destitute of money before the larceny, might be submitted to the jury, to be considered by them in connexion with other accompanying circumstances indi- cative of his guilt. Commonwealth v. Montgomery, 10 Metcalf, 534. Conduct exhibiting satisfactory indications of guilt is not sufficient to sustain a conviction, unless the^-e be also satisfactory evidence that a crime has been committed ; as in case of alleged larceny that tlie property had been feloniously taken and carried away. Tyner v. the State, 5 Humphreys, 383. Carey v. The State, 1 Humphreys, 499.] CHAP. I. § I.] OF PRESUMPTIVE EVIDENCE. 728 in the possession of the prisoner, it is presumed thut he actuully stole it, unless he proves how he came by it.(r) So also on an indictment for the crime of arson, proof that property, which was taken out of the house at the time of the firing, was afterwards found secreted in tho possession of the prisoner, raises a presumption that the prisoner was present, and concerned in the arson. (s) So also proof that clothes, weapons, or implements, jvhich are shown to have been previously in the possession of the prisoner, were found at or near to the spot where a felony was committed, is frequently adduced in order to raise a pre- sumption that the prisoner was present at the time when the felony was committed. (Q The buying goods at an under value is said to be pre- sumptive evidence that the buyer knew they were stolen. {?/) Upon an indictment for perjury, in falsely taking the freeholder's oath at the election of a knight of the shire, in the name of J. W., it appearing by compelent evidence, that the freeholder's oath was administered to a person who polled on the second day of the election, by the name of J. W., and who swore to his freehold and place of abode; and that there was no such person, and that the defendant voted on the second day, and was no freeholder, and some time afterwards boasted that he had done the trick, and was not paid enough fcr the job, and was afraid he should be pulled for his bad vote; and it not appearing that more than one false vote was given on the second day's poll, or that the defendant voted in his own name, or in any other than the name of J. W. ; it was *held, *729 that there was sufficient evidence for the jury to presume that the dcfend- (r) Where two prisoners were indicted for stealing two liorses, and the case against flicm consisted entirely of evidence to show that both the horses were found soon after the rob- bery, in the joint i)osscssion of the prisoners, and it appeared that the horses had been stolen on different days, and at different jdaces ; Littledale, J., compelled the prosecutor to elect on which of the two stealings lie would proceed; and his lordship observcil that the possession of stolen {)roperty soon after a robber}- is not in itself a felony, thoupli it raises a presumption that the ])Ossessor is the thief; it refers to the original taking, with all its circumstances. Kcx v. Smith,* Ky. & Mood. N. C. P. 295. Where the only evidence against the prisoner was that three sheets were found upon his bed in his house, three calendar months after they had been stolen, and it was urged that this was too long a time after the larceny to call on the prisoner to give any account how he had become possessed of them ; and Rex v. Adams, ante, p. 123 was relied on; Wightman, J., held that the case must go to the jury, as it seemed to him that it was impossible to lay down any definite rule as to the precise time which was too great to call upon tlie prisoner to give an account of tbc posses- sion, and that in tliis case there was ^xot/jc evidence, although rcn/ sli;//if, for the jurj' to con- sider. The prisoner was acquitted. Reg. v. Hewlett, Salop Spr. Ass. 184:^, MS. C. S. G. Air. Starkie observes, that 'the recent possession of stolen goods is recognized by the law as affording a presumjjtiou of guilt, and therefore, in one sense, is a presumption of law, but it is still in effect a mere natural presumption ; for although the circumstance may weigh greatly witii the jury, it is to operate solely by its natural force, for a jury are not to convict uidess they l)e actually convinced in their consciences of the truth of the fact. Such a presumption is, tiicrefore, essentially different from the legal jjresumptious in fact where a jury are to infer tliat a bond has or has not been satisfied, as a few days, or even hours, more or less, have elapsed, when the twenty years are expiring." 3 Stark. Evid. 933. h) Rex t'. Hickman, 2 East, P. C. 1935. {l) In Reg. V. Stonyer and others, Stafford Spr. Ass. 1843, cor. Wightman, J., on an indict- ment for burglary in the house of Keeling, evidence was given of the finding of a crow-bar in the house of one Rladon, which was near Reeling's, and Avas broken into the same night, it being proved that the crow-bar had been previously seen in possession of the prisoners, and a ciiest of drawers in Keeling's house having been broken open by such an instrument. Such is the inference of guilt drawn from the discovery of a broken knife in I lie jiocket of the prisoner, the otlier part of the blade being found sticking in the window of a house which by means of such an instrument had been burglariously entered. Grcenl. Ev. 49. (m) Ante, p. 251. » Eng. Com. Law. Reps. xxi. 443. 729 OF EVIDENCE. [BOOK VI. ant voted in the name of J. W. ; and consequently, to find him guilty of the charge as alleged in the indictmcnt.(iy) From good A very common presumption is made by a jury in favour of a defen. character. j.^qj. fj.Q^ ^\^^, goodness of his character ; which subject, together with the presumption as to the intent of a prisoner, or his guilty knowledge, respecting the act which is the subject of the indictment, raised upon the proof of prior acts unconnected with it, will be considered in a sub- sequent chapter, where the rule as to evidence being confined to the points in issue is discussed. (io)"f" Conduct. Most important presumptions are derivable from the conduct of the parties, as well in civil as in criminal proceedings. If circumstances induce a strong suspicion of guilt, and where the accused might, if he were innocent, explain those circumstances consistently with his own innocence, and yet does not olFer such explanation, a strong natural pre- sumption arises that he is guilty. And in general, where a party has the means of rebutting and explaining the evidence adduced against him, if it does not tend to the truth, the omission to do so furnishes a forcible inference against him.(a;)| Presumptions from a man's conduct operate in the nature of admis- sions, for as against himself it is to be presumed that a man's actions and representations correspond with the truth. (?/^ And admissions may be presumed, not only from the declarations or acts of a party accused, but even from his acquiescence or silence. (2)§ Suppres- _ Where a person is proved to have suppressed any species of evidence, denee. OY to have defaced or destroyed any written instrument, a presumption (v) Rex V. Price, 6 East, 323. The following is an example of a case of circumstantial GTidence too weak for conviction. Two women were indicted for colouring a shilling and sixpence, and a man (Isaacs) as counseling them, &c. The evidence against him was, that he visited them once or twice a week ; that the rattling of copper money was heard whilst he was with them ; that once he was counting something just after he came out ; that on going to the room just after the apprehension, he resisted being stopped, and jumped over a wall to escape ; and that there were then found upon him a bad three-shilling piece, five bad shillings, and five bad sixpences. Upon a case reserved the judges thought the evidence too slight to convict him. Rex v. Isaacs, MS. Bayley, J., ante, Vol. I., p. 61. See also ante, Vol. I. p. 209, as to presuming consent of parents to a minor's marriage, on a prosecution for bigamy. (iv) See also as to the presumption that a ship never heard of has foundered, Green v. Brown, 2 Str. 1199. Twemlow v. Oswin, 2 Camp. 85. Houstman v. Thornton, Holt, 242. Koster v. Reed, 6 B. & 0. 19. So where a letter, fully and particularly directed to a person at his usual place of residence, is proved to have been put into the post-office, this is equi- valent to proof of delivery in the hands of that person ; because it is a safe and reasonable presumption that it reaches its destination. Per Kord Tenterden, Walter v. Haynes,'' 1 R. & M. N. P. C. 149. {6 Mass. 316. 1 Pick. 409. 2 Stark. Evid. 269.} (x) 3 Stark. Evid. 93V. (y) 3 Stark. Evid. 93Y. (z) 3 Stark. Evid. 26. f [When a prisoner, to rebut the effect of evidence tending to show his guilt, relies upon a good character, he must introduce evidence of such good character, and it is not sufficient his rely upon the general presumption of innocence. The State v. Ford, 3 Strubhart, 517. I A party accused is not bound, in order to avoid a presumption against him arising from circumstantial evidence, to produce as witnesses persons who may by possibility have knowledge on the subject. He need only produce those who are proved to have been so cir- cumstanced as to justify the conclusion that they must have knowledge which, if divulged, would throw light on the subject. The Peoples. McWharter, 4 Barbour s Sup. Ct. Rep. 438.] ^ [The offer of the prisoner to bribe the person who has him in custody to permit him to escape, and his attempts to escape, may be given in evidence against him ; though the off"er and the attempts were made when the prisoner had been committed on a charge of a differ- ent offence from that for which he was tried, the charges for both offences being founded on the same fact. Dean v. The Commonwealth, 4 Grattan, 541.] * Eng. Com. Law Reps. xxi. 402. CHAP. I. § I.] OF PRESUMPTIVE EVIDENCE. 729 will ari.sc that if the truth had appeared, it would have been against his interest, and that his conduct is attributable to his knowledge of this circuuistanee.(a) 80 the fabrication of evidence is calculated to raise a presumption Falsifica- against the parly who has recourse to such a practice, not less than *'"° "^ *^^''" when evidence has been suppressed or withheld. Legal experience, however, has shown that false evidence has sometimes been resorted to for proving facts that are true. (A) *Other presumptions are founded on the experienced continuance or *730 l)ernKincncy, of longer or shorter duration, in human aifuirs. When, Presump- (herefore, the existence of a person, a pcr.sonal relation, or state oftinuauce. things, is once established by proof, the law presumes, that the person, relation, or state of things, continues to exist as before, till the contrary is shown, or till a different presumption is raised from the nature of the subject in question. Thus, where the issue is upon the. life or death of of nfc and a person, once shown to have been living, the burden of proof lies upon ^(^at'b. the party who asserts the death. (c) But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party. (^(/) But there is no legal presumption as to the time of the death within the seven years, and the fact of the party having been alive or dead at any par- ticular period during the seven years mu.st be proved by the party rely- ing on it.(t') In one case, where the presumption of life conflicted with that of innocence, the court, seem to have considered that the presump- tion of law was, that the party was not alive, when the consequence of his being so was that another person had committed a criminal act.(/) But in a subsequent case, the court held that there was no rigid pre- sumption of law on such questions of fact without reference to the accompanying circumstances ; such, for instance, as the age or health of the party ; and that the proper question in such cases was what in- ference might fairly be drawn from the evidence, (y) (rt) 1 Phill. Evid. 447, citing Harwood v. Goodwright, Cowp. 87. (6; 1 Phill. Evid. 448. Referring to 3 Institute, 232, where a case is mentioned of an uncle, who was hanged for the murder of his niece, and who produced on the trial a child as like unto her, both in person and years, as he could find, but which upon examination was found not to be the true child, and it afterwards appeared that the niece had run away, and was alive. And also the Douglass Peerage case, Appendi.x to livans's Pothier. "The fabri- cation of evidence does not, however, furnish of itself any presumption of law against the in- nocence of the party ; but is a matter to be dealt with by tlic jury. Innocent persons, under the intlucnce of terror from tlie danger of their situation, have been led to thcsimultation of e.xculi)atory facts." Greenl. Ev. 43. (c) Greenl. Ev. 40, 47, citing Throgmorton v. Walton, 2 Roll. R. 461. Wilson v. Hodges, 2 East, R. 312. Battin v. Bigelow, 1 Pet. C. C. R. 452. See 3 Stark. Ev. 937. ((!) Greenl. Ev. 47, citing Hopewell v. Dc Pinna, 2 Campb. 113. See 1 Phil. Ev. 449. Doc d. George p. Jesson, 6 East, R. 80. Doe d. Lloj'd v. Deakin,* 4 B. & Ad. 433. Watson r. King,'' 1 Stark. R. 121. It has been held in America not to be necessary that the party be proved to be absent from the United States ; it i.S sufficient if it appears that he has been al).scut for seven years from the particuhir state of his residence, without having been heard from. Greenl. Ev. 47, note 5, citing Newman v. Jenkins, 10 Pick. .'■>1.'>. Innis v. Campbell, 1 Rawle, 373. Spurr v. Trimble, 1 A. K. Marsh. 278. Wambough i\ Skenk, 1 Penniugt. 167. Woods V. Woods, 2 Bay, 476. 1 New York Rev. Stat. 749, s. 6. (c) Doe d. Knight v. Nepea'n,' 5 B. & Ad. 86. 2 M. & W. 894. (/) Re.v v. Twyning, 2 B. & Aid. 386,/)0.t/, p. 732, note (v). {(/) Rex )'. Ilarhone,'! 2 A. & E. 540, ante,\o\. 1, p. 219. Upon an issueof the lifeor death of a party, the jury may find the fact of death from tlie lapse of a shorter period than seven years if other circumstances concur: as if the party %sailed on a voyage, wiiich should long since have been accomplished, and the vessel has not been heard of. Greenl. Ev. 47, rcfered to In re Ilutton, 1 Curt. 595. •■' Eng. Com. Law Reps. vi. 476. ^ lb. ii. 322. ■= lb. xxvii. 42. ^ lb. x.xix. ICl. 730 OF EVIDENCE. [BOOK VI. On the same ground, a partnership or other similar relation, once shown to exist, is presumed to continue till it is proved to have been dis- solved, (/t) So where an indictment alleged that the defendant made his warrant of attorney directed to A. and B., " then and still being attornies of the King's Bench," it was held that as the defendant, by executing the warrant, admitted them to be attornies at that time, it must be presumed that they continued to be so at the time when the indictment was found. (/) 7ol *So where a thing is proved to have been in a particular state at one time, it is presumed to have been in that state at a former time, unless there be evidence that at some previous time it was in a different stately) Opinions Tlie opinions also of individuals once entertained and expressed, and and state of ,7 , , ^ . , . . , ^ . ' mind. '"'^ ^^^f'' ^/ «**"«, oncc proved to exist, are presumed to remain un- changed till the contrary appears. Thus all the members of a Christian community being presumed to entertain the common faith, no man is supposed to disbelieve the existence and moral government of God, till it is shown from his own declarations. In like manner, every man is presumed to be of sane mind till the contrary is shown; but if derange- ment or imbecility be proved or admitted at any particular period, it is presumed to continue till disproved. (^) Prosiimp- Besides the presumptions which a jury may make from circumstantial law!^ ° evidence, there are also presumptions of law. Thus, on every charge of murder, the fact of killing being first proved, the law presumes it to Of malice, have been founded on malice till the contrary appear; and therefore all circumstances alleged by way of justification, excuse, or alleviation, must be proved by the prisoner, unless they arise out of the evidence produced against him.(^) Of the pro- Indeed, it is a universal principle, as Lord Ellenborough observed, in sequence '•^^ ^^^^ ^^ ^^^^ ^- Dison,(m) that when a man is charged with doing of an act. an act, of which the probable consequences maybe highly injurious, the intention is an inference of law resulting from the doing the act. In the •f~ case of Rex v. Sheppard,(?i) uttering a forged stock receipt to a person who employed the prisoner to buy stock to that amount, and advanced the money, was held sufficient evidence of an intent to defraud that per- son : and it was further held, that the oath of the person to whom the receipt was uttered, that he believed the prisoner had no such intent, would not repel the presumption of an intention to defraud. So where the prisoner was indicted (under the repealed statute, 43 Geo. 3, c. 58) for setting fire to a mill, with intent to injure the occupiers thereof, it was held, that an injury to the mill being the necessary consequence of setting fire to it, the intent to injure might be inferred; for a man must be supposed to intend the necessary consequence of his own act.(o) So in prosecutions for forgery, a jury ought to infer an intent to defraud the (A) Greenl. Ev. 48. 3 Stark. Ev. 937. Alderson v. Clay,^ 1 Stark. R. 406. (/) Rex V. Cooke'', 7 C. k P. 559, Patteson, J. {j) Rex V. Burdettj-^ 4 B. & Aid. 124, per Best, J. In this case a letter was delivered to a person, unsealed, in Middlesex, and it was held that it must be presumed that it was sent in that state from Leicestershire, there being no evidence to the contrary. (A-) Greenl. Ev. 48. Attorney General v. Parnther, 3 Bro. Ch. C. 443. {I) Fost. 255. 1 East, P. C. c. 5, s. 106, p. 340. Im) 3 M. & S. 15. See also ante, p. 362, 545. («) Russ. & Ry. C. C. R. 169. Ante, p. 362. (0) RexD. Farrington, Russ. & Ry. C. C. R. 207. Ante, p. 563. * Eng. Com. Law Reps. ii. 445. ^ lb. xxxii. 629. <= lb. vi. 364. CHAP. I. § I.] OF PRESUMPTIVE EVIDENCE. 731 person who would have to pay the instruiueiit if it were genuine, althougli, fruin the manner of executing the forgery, or frnni that per- son's ordinary caution, it would not be likely to impose on him, and although the object was general to defraud whocvrr might take the in- strument and the intention of defrauding in particular the person who would have to pay the instrument, if genuine, did not enter into the prisoner's contemplation. (y;<) *In the case of Rex v. Fuller and another, ( lb. xii. 371. * lb. xi. 374. ' lb. xxv. 559. 732 BEST POSSIBLE EVIDENCE MUST BE PRODUCED. [BOOK VL Caution of It may be proper here to mention the two well known cautions of as"toi)re-" Lord Hale respecting presumptive evidence, viz., 1. That a person sumptions, should never be convicted for stealing the goods cujusdam ignod^ be- cause he cannot give an account of how he came by them, unless there be due proof made that a felony was committed of these goods. 2. That a person should never be convicted of murder or manslaughter, unles.s the fact were proved to be done, or at least the body found dead, (a) *733 *SECT. 11. The hest possible Evidence must he jyroduced. General It is a general rule that you must give the best evidence that the th b^ !f ' nature of the thing is capable of :(/>) the true meaning of which rule is, possible not that in every matter there must be all that force and attestation that evidenoo jjy g^j^y possiblity might have been gathered to jirove it, and that nothing produced, under the highest assurance possible shall be given in evidence; but that no such evidence shall be brought that ex naturd rei supposes still greater evidence behind in the party's possession or power; for such evidence is altogether insufficient, and proves nothing as it carries a presumption with it contrary to the intention for which it is produced. For if the other great evidence did not make against the party, why did he not produce it to the court? As if a man offer a copy of a deed or will where he ought to produce the original, this carries a presump- tion with it, that there is something more in the deed or will that makes against the party, or else he would have produced it ; and, therefore, the proof of a copy in this case is not evidence :(c) but if he prove the ori- ginal deed or will in the hands of the adverse party, or to be destroyed without his default, a copy will be admitted, because then such copy is the best evidence : the presumption of greater evidence behind in the party's possession being overturned by positive prootVc?) Hence it appears that evidence of an inferior quality, or, as it is called, secondary evidence, cannot be received until it be shown that no evidence of a superior quality, or, as it is termed, primary evidence, can be produced. It becomes necessary, therefore, to consider, 1st, What is primary evidence. 2ndly, What is sufficient ground for the admission of secondary evidence. 3dly, What is good secondary evidence. What is 1. What is primary evidence. It has already appeared that it is the evidence f^l^^^l^ty and not the quantity which the rule requiring the best possible evidence regards. Thus, if a will of lands is to be proved, the primarj- Contents of proof of the contents is the will itself; and neither an exemplification ^^ ■ under the great seal, nor the probate in the spiritual court, will be ad- ^ ^. missible,f'?) but one of the three subscribino- witnesses will be sufficient, XiXGCution . ' - of will. without calling the others to prove the execution, if he can speak to all Rex V. Borrett,^' 6 C. & P. 12-1. Butler v. Ford, 3 Tyrw. 6*77 : 1 C, M. & R. 662. Reg. v. Mur- phy," 8 C. & P. 297. (a) 2 Hale, P. C. 290. (ft) Bull. N. P. 293. (c) Bull. N. P. 293. Gilb. Ev. 13. \d) Bull. N. P. 293. («) Bull. N. P. 246. But the pi-obate is the best evidence as to personalty. » Eng. Com. Law Reps. xxv. 312. "> lb. xxxiv. 397. CHAP. I. § II.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. 733 the requisites of attestation, and the jury believe him.(/) So if there are several subscribing witnesses to a deeiJ, and all are proved to be dead, proof of the signature of one will be suilieient; for the proof is, as far as it goes, eonipleto, and not inferior in its kind to any that can be *produced.(7) So for the purpose of proving handwriting, where it *7o4 happens to be a case where there would be no objection to the coiupe- Primary tency of the witer himself, it is not necessary to call him : it is sufficient ''^"•''"'p "f to prove It by .the evidence oi some one acciuaiuted with the general ing. character of hij- writing, who, on inspection, can say he believes it to be the handwriting of the party. Thus, where the signature of a magistrate to a deposition is to be proved, it is usually done by a witness acquainted with the general character of his writing, without calling the magistrate himself. The evidence of such a witness is not in its nature inferior or secmidary; and though it may generally be true that the writer is best acquainted with his own handwriting, and, therefore, his evidence will in general be thought the most satisfactory, yet his knowledge is ac- quired precisely by the same means as the knowledge of other persons who have been in the habit of seeing him write. (A) And it seems, that Of disprov- on the same principle, the evidence of such persons is as much primary '""f J''i'^">- evideuce to disprove his handwriting as to prove it.(i) On an indict- ment for unlawfully assembling, it was held, that a paper which had been delivered by Hunt to the witness at a meeting, as a copy of certain Other in- resolutions about to be proposed and read, and which correspond with *'*'|',],'^^rV what the witness heard read from a written paper, was admissible as evidunce. evidence of those resolutions, without giving the defendant notice to produce the original. (/) And in the same case, it was decided that parol evidence of inscriptions, or devices on banners and flags displayed at the meeting, was admissible without producing the originals, though it appeared that they had been seized by the police oflBcers, and there- fore might have been produced on the part of the prosecution. (/i;) The contents of a written instrument can only be proved by the in- Written in- strument itself, unless it be lost, or in the hands of the other party : and ^t""""^*-'"'"- the declarations of the party against whom it is to be proved were once held inadmissible for this purpose, unless the non-production of the instrument were accounted for.(^/) And generally speaking, parol evi- dence is secondary in its nature to written evidence ; and where a written instrument is required by law, or made by a private compact to express the intention of the parties, it possesses a force and authority superior to any other evidence. (?>i) Thus, when an agreement has been reduced iuto writing, the writing itself must be produced j()i) and if not properly (/) Bull. N. P. 264. So the execution of a will has been held to be proved hv evidence of the testimony of one of the subscritiinpj witnesses, Avho was dead, privcn on a trial between tiic Siune parties, although another attesting witness was ])rcsent and not called. Wright t'. Doe d. Tathani,* 1 A. & E. 3. See also Doe d. Spilsbnry i-. Burdett,'' 4 A. &E. 1. (.-7) 1 Phil. Ev. 418. (A) 1 Phil. Ev. 22.^, 7th edit. Ante, p. 393. (i) Ante, p. 392. (./) Uc.\ r. Hunt," 3 n. & A. 56G. Antr, vol. 1, p. 288. (k-) Ibid. Abbott, C. J., said, "If we were to hold that what was inscribed on a banner could not be proved without the production of the banner, I do not know upon what rea- son the witness should be allowed to mention the colour of the banner, or even to say he saw the banner displayed; for the banner itself may be said to be the best possible evi- dence of its e.xistence and of its colour." (V) r.loxam V. Elsie,-' I It. & M. N. P. C. 187. Abbott, C. J. But sec poxt, p. 749. (;«) I .Stark. Ev. 504. [7i) Brewer )-. Palmer, 3 Esp. 213, cor. Lord Eldon, C. J. Sinclair v. Stevenson,* 1 C. & P. 582, cor. Best, (". J. » Kng. Com. Law Reps, xxxviii. 11. ^ lb. xxxi. 11. ' lb. v. 377. . Pearson, 12 East, 239 n. (m) Smith V. Young, 1 Campb. 439. > Eng. Com. Law Reps. v. 30G. ^ lb. .\i. 299. <= lb. x.xxiv. 376. CHAP. I. § II.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. 735 The above arc instances of modes of pronf ■whicl), notwitlistanilitig Iiisiauces the existence of other evidence which might be more satisfactory, are Ij^^^'^j'^ " yet in their nature primary, and consequently, available. It may be i'c-; in such possession, and *""""' '*•^■ of reasonable notice to produce it at the trial having been given to the evidence, other party, in the latter case, secondary evidence is admissible. {^)"|' Where secondary evidence is offered, in consequence of the loss of the Where the primary evidence, in order to establish such loss, it must be proved thatl"'.'"'"'^' . i-i- 111 1-1 \ 1-11 • cvidonco !.•« diligent search has been made in those quarters irom which the primary i^gt. evidence was likely to be procured. The case of Kensington v. Inglis(//) What is affords an example of what is considered a sufficient search for such a''"'^^""^"' purpose. There it was incumbent on the plaintiff to prove the loss of aioss. license to trade; and a witness who had been secretary to the governor of a colony, said it was his practice to destroy, or put aside such licenses among the waste papers of his office, as not being of further use, and he supposed he had disposed of the license in question, (which after having been granted by the governor, was returned to the witness,) in the same manner as other licenses for ships whose voyage.^> had been performed : but he was not sure it was destroyed. He further stated, that he had (e) R. & M. C. C. 154. (/) Besides these two instances of the loss or destruction of the primary evidence, and its bein'T in the hands of the adverse party, it should seem that secondary evidence is ad- missible in all cases where it is apparent that such secondary evidence is the best, which the party, without any default, has it in his power to produce; for then the presumption of a fraudulent suppression of the better evidence, which is the foundation of the rule, must cease. Thus, if an attesting witness to a written instrument after his attestation beconic.=t incompetent from interest, proof of his hand-writinjr is admissible. Oodfrey r. Norris, 1 8tr. .'ii. So if he becomes incompetent from infamy, Jones c. Mason, 2 Stra. 8:!Ij. The defendant, in an action of trcsjiass for breakinij hatches, oifered in evidence articles of ajrree- ment, dated in 17 t.'i, between persons sttrndinir in tlie resi)eo,tive situations of the plaintiff and defend:int. To i)rodnce this deed the defenilant's attorney was called, who said he had received it from the son of the owner of the defendant's land. This evidence was objected to as insufTicicnt ; tiicn the .son of the owner was called, who said he had received it from his father that morning; this being also objccteil to, the father was called; upon which the plaintiff examined him on the voir dire, and objected that he could not be a witness, being interested ; whereupon llolroyd, J., held, that as the father was objected to, the next best evidence had been given, and admitted the deed. Card v. Joans, Dorchester, 11th March, I8l'.>, Majining's Dig. .U."*. If a deed be in possession of a third person, who is not by l.iw compellal)le to produce it, and he refuses to do so, secondary evidence is admissible, lor the original is then unattainable by the party offering such evidence. Doe v. Uoss, 7 .M. & W. 102. {g) 8 East, 273. f [It is the province of the court to determine whether the loss of a paper is sufficiently proved to admit secondary evidence. Vaujhn v. Biggcrs, 6 Georgia, 188.} 738 OF EVIDENCE. [BOOK VI. bocu applied to for tho liceu.se, and had searched for it: but he did not *739 recollect whether he found it *or not; though he did not think that he had found it. Lord Ellouborough, C. J., in delivering the judgment of the court,(/t) said, '< We are of opinion, that this evidence satisfies what the law requires in respect of search ; and establishes with reason- able certainty the fact of the license being lost. It was not to be ex- pected that the witness should be able to speak with more confidant certainty to a fact, to which his attention would not be particularly drawn at the time, on account of any importance being supposed to belong to iJvowstor it." So where it became necessary to account for the non-production of L\ Sewell. j^ policy, and it was proved that it had been ciFected about seven years before, and having become useless on account of a second policy being efl'ected, it had probably been returned to the pluintift"; and the clerk of the plaintiff's attorney proved, that a few days before the trial of the action, he had searched for it in the plaintiff's house, not only in every place pointed out by the plaintiff, but in every place which he thought likely to contain a paper of this description ; it was held that this was sufficient evidence to entitle the plaintiff to give secondary evidence of the contents of the policy. In this case, Abbott, C. J., observed, that where the loss or destruction of an instrument may almost be presumed very slight evidence of its loss or destruction will be sufiicient.(^i) Loss of a Where a tithing-man went to a house to execute a warrant, and read warrant to ^jjg warrant under the window of the house, where the party who was " to be apprehended under the warrant then was, and an affray then took place between the tithing-men and the inhabitants of the house, during which the tithing-man stated that he lost it; that he had it in his hand when he read it under the window ; and that he never saw it afterwards; that he searched his pocket for it after he had gone about a mile and a half from the house, and could not find it ; and that he directed a boy to look carefully for it, on the road between the house and the place where he first missed it; and the boy swore that he had made careful search, and could not find it ; it was held, on a case reserved, that sec- ondary evidence of the warrant was properly received, although notice had not been given to the prisoner to produce it.(_;') What is not But if it be proposed to give secondary evidence of a written instru- sufficient ment, and such instrument is traced into the possession of a particular proof of ' , 1 1- I 1 • 1 IT 1 • • loss. person, the loss cannot be established without calling him as a witness ; for it will not be enough to prove that he was applied to for the instru- ment, and upon such application, said that he could not find the same, nor did he know where it was. Thus, where it was proved that an in- denture of apprenticeship was of two parts, that one had been destroyed, and that the other had come to the hands of a Miss Taylor, who when asked for it, said she could not find it ; but she was not subpoenaed : So should this was held insufficient evidence of the loss.(/f) The same principle (h) East, 289. (i) Brewster v. Sewell,* 3 B. & A. 296. See also Freeman v. Arkell,'' 2 B. & C. 494, where Bayley, J-, expressed himself to the same effect. And for further examples of sufficient searches, see Rex v. North Bedl^urn, Cald. 452. Ilex v. Johnson, 7 East, 65. Rex v. Morton, 4 M. & S. 48. Blish V. W<.llcsley,<^ 2 Can-. & P. 400. Rex v. East Farleigh,'' 6 D. & R. 147. Rex V. Stoorbridgc> 8 B. & C. 06. (j) Rex V. Hood, R. & M. C. C. R. 281. (k) Rex V. Castleton, 6 T. R. 246. See also Williams v. Younghusband,f 1 Stark. R. 139, and Parkins v. Cobbett,s l C. & P. 282. In Rex v. Denio,"^ 7 B. & 0. 620, the pauper, who » Eng. Com. Law Reps. v. 291. *> lb. ix. 159. <= lb. xii. 189. J lb. xvi. 258. • lb. XV. 155. f lb. ii. 328. s lb. xi. 394. '' lb. xiv. 102. CHAP. I. § 11.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. *T40 applies *with respect to the person who has the legal custody of an ''"M^'''-""" iiistiuiuont : if it is proposed to establish its loss for the purpose of |^,,, I secondary evidence of its contents, the person who has tln' legal custody cu»tuu\. of it should be called as a witness, or steps should be taken tt» make evidence of his conduct admissible. (/) And where the instrument in question is the appointment to an office, the legal custody is in the officer, who is the person most interested in the instrument, and who requires its production as a sanction fnr those acts, which he may be called upon to do under its authority. (/») If the individual to whose possession the instrument is traced be dead, an inquiry should be made of his executors, or such persons as must be presumed to have it in their possession. (?() But if the papers of the deceased were searched during bis lifetime, it is unnecessary to apply to the executors or other persons to whose possession such papers may have come.(o) If two or more "Wboiv two parts of a deed have been executed, the loss or destructidu of all the!""''*' parts must be proved, in order to lay a ground for admitting secondary cuad. evidence of its contents. (^>) The court must be satisfied that due diligence has been used to find What is the document in question ; but it is not necessary to negative every pos-*^"" soarcli. sibility, it is enough to negative every reasonable probability, of any thing being kept back. Where an officer or an attorney is applied to liad served as an apprentice, proved that the indenture was kept by his master, and when the appri-ntiicship cxjiired, he asked liis master for the indenture, who said he had not pot it, but that it was with the overseers of the parish by which the ]iauper was bound appren- tice, and proof was given of search among the ]>apers of the jjarish for the indenture, and that it couhl not be found ; and that all the books and papers aliouttliat date were missing; and it was held, that as the master was living, anil might have been called as a witness, ar.d his declarations were clearly not admissible in evidence, there was not stiflicient evidence to show that due search had been made so as to let in [larol evidence of the indenture. In Ilex i>. Kawden.^ 2 A. ifc E. ir)ii, the widow of an apprentice stated that, a short time before her husband died, she asked him what had bcconie of his indentures, and he said he had got them away from his master after the end of his apprenticeship, and had worn them in his pocket till they were all to ])ieces, and it was held that evidence of this conversation was inadmissible, there l)eing no furihcr proof either of the indenture having been in the posse8- sion of the ajjprentice, or of other inquiry after it. But where, in order to establish a set- tlement by apprenticeship, it was proved that the indenture was only of one part, and that \\\nm application to tlie pauper, who was then ill, and died soon afterwards, to know what had become of it, he declared that when the indenture exfiired it was given to him, and lie iiad burnt it long since; and it was also ])r()veci, that inciuiry was made of the executrix of the master, who said that she knew nothing about it, it Wiis held that this proof was suHi- cient to let in parol evidence of the contents of the indenture. Rex v. Morton, 4 M. & S. 48. Tho court distinguished this case from Rex v. Castleton, inasmuch as there was no proof that the indenture ever existed in the jjosscssion of the pauper, unless his declaration were taken a.s evidence, and if it was, in the same breath he declared it no longer existed ; whereas the evidence in Rex v. Castleton, showed tliat a further search was necessary. (/) Rex v. Stoke Golding, 1 B. & A. 173. (;«) Rex »'. Stt)ke (iolding, supra. The law jirosumes the ajipointment of officers to be in the custodv of some of the overseers, per Holroyd, J., ibid. (n) 1 Pliil. Kv. 45(;, 7th edit. (n) Rex r. I'iddlehinton,' 15 R. k Ad. 400. The master of an apprentice took away the indenture after it was executed, and failed in business after tlie apprentice had served about a year. Upon the failure, an attorney had the custoily of all the papers and books of the master, and looked over them after tlie failure, and did not find any indenture, and it wiw held that this was suflicient to allow the admission of secondary evidence, though the mas- ter's widow was living, and no in((uiry had been made of her; for, after the evidence of the attorney it was useless to inquire as to her possession of the indenture. In Bit/, r. Rabbits, 2 M. & Rob. on, Ratteson, J., held that it was not necessary tiiat the search should be re- cent, or for the purpose of the cause ; and that a search for the paper three years before tlie trial was sufticicnt. (j)) Bull. N. P. 254. Doxon v. ITaigh, 1 Esp. 409. Alivon v. Furnival, 4 Tyr. 751. ' Eng. Com. Law Reps. xxix. 54. '' lb. xxiii. 121. *741 OF EVIDENCE. [BOOK VI. for the inspection of documents, the court *will assume, until the con- trary appear, that the officer or attorney produces all the documents re- lating to the subject. (f/) •2. Whoro There is no distinction between criminal and civil cases with respect the primary jq secondary evidence of documents in the possession of the defendant. oviuence is •' , ; in the pos- It has been solemnly determined, that notice may be given to the de- session of fcndaut in a criminal prosecution to produce a paper in his possession, party. ''^^^ i^ ^'^se he neglects to produce it, other evidence may be given of it.(r) Where secondary evidence is sought to be given, on the ground that the primary evidence is in the possession of the adverse party, in the first place, the fact of such possession must be proved. The degree of evidence which may be necessary to prove that fact, will depend so much on the nature of the transaction, and the particular circumstances of each individual case, that it is scarcely possible to lay down a gene- ral rule on the subject. (s) Where an original instrument belongs ex- clusively to a party, or regularly ought to be in his possession accord- ing to the course of business, slight evidence is sufficient to raise a pre- sumption that it is in his possession. Thus, where the solicitor to a commission of bankruptcy proved that he had been employed by the defendant to solicit his certificate under the commission, and that on looking at his entry of charges, he had no doubt the certificate was al- lowed, this was held sufficient proof of the certificate having come to Possession the defendani's possession. (^) Where an instrument has been delivered ofpnvy. J.Q .^ third party, between whom and the party to the suit there exists a privity, the possession of the privy is considered the possession of the party, for the purpose of letting in secondary evidence. Thus, in an action against the owner of a vessel, for goods supplied to the use of the vessel, a notice to the defendant to produce the order for the goods which he had given to the captain, was held sufficient to let the plain- tiff into secondary evidence of the contents of the order, though the order itself appeared to be in the possession of the captain; on account of the privity between the owner and the captain. (m) So in an action of trover against the sheriff, a notice to the sheriff's attorney was, on account of the privity between him and his under-sheriff, held sufficient to let in secondary evidence of a writ, which was proved to have come to the possession of the under-sheriff, by having been returned to him during the time the sheriff remained in office {v\ So notice to a de- fendant to produce a check drawn by him, and paid by his banker, is *742 sufficient to entitle the *plaintiff to give secondary evidence of its con- tents, though the check remains in the banker's hands, for the posses- Iq) M'Gahey v. Alston, 2 M. k W. 20G. In this case a check, which had been drawn on the account of a parish, had been delivered to the paying clerk of the parish, and the bankers of the parish on the same day paid a check of the same amount, and their custom was to return the checks when paid to the paying clerk. The cancelled checks were kept in a room in the workhouse, used by the paying clerk as an office for tliat purpose, and ap- plication was made to the succeeding paying clerk for an inspection of the checks he had in iiis office, and the paying clerk handed to the witness several bundles, which the witness looked through without finding the check in question, but looked at no other. The paying ckrk was not called, and it was held that this was such reasonable search for the check as to render parol evidence of it admissible. (>) Per Buller, J., Rex ?v Watson, 2 T. R. 201 . Attorney General v. Le Merchant, 2 T. R. 201, note (a). Gates v. Winter, 3 T. R. 306. (.i) 2 Phill. Ev. 216. {t) Henry v. Leigh, 3 Camp. 502. (m) Baldney v. Ritchie," 1 Stark. N. P. C. 333 (v) Tapli'n v. Atty, 3 Bing. 1G4. * Eng. Com. Law Reps. ii. 416. CHAP. I. § II.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. 742, sion of the banker is the possession of bis customcr.(tc) So where a forged deed was produced by the prisoner's attorney on the trial of an • ejectment, in which the prisoner was the lessor of the plaintiff, and after the trial it was returned to the prisoner's attorney, it was held that secondary evidence might be given of it, after notice to the prisoner to produce it, without calling the attorney to prove what be had done with the decd.(j,) In order to lot in secondary evidence, the instrument need not be in the actual possession of the party ; it is enough if it is in his power, which it would be if it were in the hands of a party, in whom it would be wrongful not to give up possession to hira. But he must liavo such a right to it, as would entitle him not merely to inspect but to retain it. Where, therefore, a written contract had been deposited in the hands of the common agent of the defendant and the person with whom he had contracted, and notice to produce had been given to the defendant, it was held that secondary evidence was not admissible, because even if the document were given to the defendant for the purpose of the cause, it must be returned. (^) And where a paper is in the hands of a person acting in an independent character, and who has a right to the posses- sion of it, notice to the party is insufficient : and this is so, although the party justifies under the authority of that person. (.r) A letter which had been in the possession of the defendant was Instrument proved on the part of the defendant to be then filed in Chancery, pur-°"*'° '" ^^'^ piirtv 8 dob- suant to an order of that court; Abbott, C. J., was of opinion, that thegcsion, plaintiff, upon proof of notice to produce, was not entitled to give se- ^"t ^'"^o condary evidence of the contents; for the letter was as much in thej^'j^i,^ possession of the one party as the other. Either party might, on appli- cation to the Court of Chancery, have obtained permission to produce it.(^a) But where a document was traced to the possession of the defen- dant, upon whom notice to produce it had been served, but he proved that it was then in the stamp-office, (where it had been delivered to have some duties allowed,) Best, C. J., held, that as he had not informed the plaintiff of that ^circumstance when serving the notice, secondary evi- *743 dence was allowable. (6) (iv) Patridge v. Coates,* Ry. & Mood. N. P. C. 156, per Abbott, C. J. S. P. Burton v. Payne,'' 2 Carr. & P. 520, per Bayley, J. See also Sinclair v. Stevenson,'^ 1 Carr. & P. 582, where Best, C. J., held that it was enoui^h to trace the primary evidence to the posses- sion of an agent. But there is no such privity between the defendant, and a third persoa under whom lie justifies, so as to make proof of the possession of such third party cipiivalcnt to the posses.-iion of the defendant. Evans v. Sweet,: Le Marchant, 2 T. R. 201, in note (a) to Rex r. Watson. (/«) How /'. Hall, 14 East, 274. Scott v. Jones, 4 Taunt. 805. Tid.l's Prac. 8.'):^. The practice used to l)e otiicrwise, per Gibbs, J., 4 Taunt. 368. (h) Aickles's ease, 1 Leach, 2!>4. (0) 1 Leach, 297, per Heath, J. (p) Cited by Lord KlIcnl)orou,e called to say it had been destroyed, it might be in the hands of the adverse ])arty notwithstanding." i>er Lord Dcnman, ('. .1., and the defendant might dispute the fact of its destruction, and say. '• I have the document, but will not produce it, because I have not been served with notice," per Pat- teson, J. Mr. Starkie, Ev., vol. 1, 398, after citing this case, adds, '^tamen quarr, for after destruction of the instrument it is no longer in the possession of any one." It is conceived, however, that the observations of the court are perfectly accurate with reference to a case where the destruction of the document is disputed. C. S. G. («) 6 St. Tr. 263. * Eug. Com. Law Reps. xix. 370. •> lb. xix. 370. ' lb. xxxviii. 303. ■> lb. xxx. 22. 745 OF EVIDENCE. [BOOK VI. ter laid iu the indictment, and then iuiinediately put it into Lis pocket, that person was permitted to give parol evidence of the contents of the paper. And in the case of De la Motte,(/) on an indictment for a trai- torous correspondence with the French government, where the question was, whether examined copies of the treasonable papers, which had been secretly opened at the post-office, and copied, and then forwarded to their place of destination, were admissible iu evidence; the court held, that tliey might be admitted, after proof that the originals were in the handwriting of the prisoner. So on the trial of an indictment for ad- ministering an unlawful oath, it was held that a witness might prove that the prisoner read an oath from a paper, without giving him notice to produce it.(ii) But an indictment for setting fire to a house, with intent to defraud an insurance office, does not convey such a notice that the policy of insurance will be required upon the trial, as to dispense with the necessity of a notice to produce it.{v\ So where on an indict- ment for stealing from out of a canal boat, it appeared that the boat had been weighed at a lock, and a ticket of the weight given to the prisoner, and it was proposed to give secondary evidence of its contents, although no notice to produce it had been given; Parke, J., held, that this was not allowable, because the rule which requires notice to be given ex- tends to criminal as well as civil cases, except where the nature of the indictment itself expressly shows the prisoner that the deed or paper in question will be wanted at the trial, (tc) Necessary, It seems to be the better opinion, that neither party will be allowed, though either in an examination in chief, or in a cross-examination, to inquire is in court, i^to the contents of a deed, merely because the opposite party has the original deed in his possession in court, at the time of the trial ; and that the opposite party may object to parol evidence of the contents, on account of his not having received a notice to produce the original. (cc) *746 *A party called upon to produce a paper, must either produce it when called upon, or not at all : he cannot avail himself of it in a sub- sequent stage of the case.(^) Where, therefore, notice had been given {() Coram, Buller and Heath, J., 1 East, P. C. c. 2, s. 58, p. 124. (m) Rex V. Moors, 6 East, 419, note to Rex v. Nield. See also Rex v. Hunt,* 3 B. & A. 56t), ante, p. 'i'34. And see the same case as to proving inscriptions on banners, &c., with- out notice to produce, ibid. So the principle of the rule requiring notice to produce does not extend to a case where a party to the suit has fraudulently got possession of a written instrument belonging to a third person; as where a witness was called on the part of the defendant, to produce a letter written to him by the plaintiff, and it appeared that, after the commencement of the action he had given it to the plaintiff: in this case, though a notice to produce had not been given, parol evidence was admitted, because the paper belonged to the witness, and had been secreted in fraud of the subpoena. Leeds v. Cook, 4 Esp. N. P. C. 256. Tidd Pr. 853. (v) Rex V. EUicombe,'' 5 C. & P. 522. 1 M. & Rob. 2G0, Littledale, J. There were other counts laying the intent differently. In ordinary cases of felony it is not only the very na- ture of the indictment, but the charge before the magistrate which gives notice to the pri- soner at a sufficient time before the trial to be prepared with the particular document, and that is always the case in civil suits. But if an indictment were preferred without any pre- vious examination before a magistrate, it may be questionable whether such indictment ought to be considered as giving sufficient notice to the prisoner, unless, indeed, he had in- formation of the precise nature of the charge contained in it at such a period before the trial as would be sufficient for the service of a notice to produce. C. S. G. (w) Rex V. Humphries, Stafford, Spr. Ass. 1829. MS. C. S. G. (z) 2 Phill. Ev. 226. I Stark. Ev. 404. And see Doe v. Grey,' 1 Stark. 283. Roe v. Harvey, 4 Burr. 2484. Rose. Ev. 6. (y) 2 Phill. Ev. 220. Doe d. Higgs ;;. Cockell,d 6 C. & P. 525. Jackson v. Alleu,« 3 Stark. R. 74, Lewis v. Hartley,f 7 C. & P. 405. » Eng. Com. Law Reps. t. 377. •> lb. xxiv. 43G. •= lb. ii. 391. <• lb. XXV. 524. * lb. xiv. 165. f lb. xxxii. 558. CHAP. I. § II.] BEST rOSSIBLli; EVIDENCE MUST BE PRODUCED. 746 to t.lio defendant to produce certain receipts fur rent, wliieli llic defend- ant refused to produce; it was Iield, that the defendant could not after- wards, as part of his case, put in the receipts fur the purpose of show- ing that the rent was paid to the lessor of the plaintiff and another jointly.(;;) The regular time of calling for the production of papers and books, Timo to is not until the party who requires them has entered into his case : till '"" ''"■!^'' . prtji'ucLiOD* that period arrives, the other party may refuse to produce them, and there can be no cross-examination as to their contents, alih.ju'di the notice to produce them is admitted. (a) If upon a notice to the adverse party to produce primary evidence in Consoqucn- his possession, he refuses to produce the instruments required, it has I''''' ""^ K"^' 11111 .,. -ii /> 1 n I t t '"f? notice been hela that no inrercnce is to be drawn Ironi .such rciusal ; but that to produco. the only consequence is, that the other party who has done all in his power to .su[)ply the best evidence, will be allowed to go into secondary evidence. ('/'/) If the party, giving due notice, declines to u.se the papers when produced, thi.s, though matter of observation, will not make them evidence for the adverse P''»rty,(/v) though it is otherwise when the papers are inspected. (c)f Secondary evidence of papers, to produce which notice has been given, cannot be entered into till the party calling for them has opened his case, before which time there can be no cross- examination as to their contents. ('?) Where a party, after notice, re- fuses to produce an agreement, it is to be presumed as against him that it is properly stamped. (i') 3. It remains to be considered what is good secondary evidence. (y) •"• What ia It must be observed, that previous to giving any such evidence of the ^|,',"|i(j^rv contents of a deed, the original deed ought to be proved to have been evidence, duly executed. (y) So where an original note of hand is lost, a copy '^^"*^*'*^'' ' cannot be road in evidence unless the note *is first proved to be genu- *747 (j) Doe d. Tlionipson v. Hodgson,* 12 A. & E. 135. (a) 2 Phill. Ev. 221. Graham v. Dj'stcr,'' 2 Stark. R. 23. Sideways v. Dysan,<^ ibid., 40. 1 8tark. Ev. 403. (aa) ( 'ooper and iinother v. Gibbons, 3 Campb. 3G3. That was an action for the value of a pipe of wine: notice had been given by the defendant to the plaintiffs to produce their l)ook.-<, but they were not produced. It wa.-j insisted for the defendant, that the jury were bound to draw an inference against the plaintiffs from such non-production. Hut Gibl)s, C. J., said, '' I have considered this subject a good deal, and am of oi)inion, that the jury are not auUiorizeil to draw any such inference from the eircumstauees relied on. The non- jjroducliou of the plaiiililfs books, after a notice to jiroduce them, merely entitles the de- i'endiinfs to give parol evidence of their contents." See the observations of Mr. Phillips, 2 vol. 222. (h) Sayar v. Kitchen, 1 Esp. N. P. C. 210. (c) Wharam v. Routledgc, 5 Esp. N. P. G. 235. Rose. Ev. 9, S. P. if they are at all mate- rial to the case. Wilson c. Howie,'' 1 C. & P. 10, cor. Park, J. A. J. Calvert v. Flower,* 7 C. & P. asc (il) Graham v. Dysler.f 2 Stark. .'!.'?. Rose. Ev. 9. (r) Grisj) r. Anderson, 8 1 Stark. N. P. G. 35, but the party refusing is at liberty to prove the contrary, ibid. ( /■) Where secondary evidence is let in, it is subject to the same rules as the best evidence wliirli the case admits of: the evidence as to the contents of written instruments, when the}" cannot be produced themselves, must be of a nature which the law would receive in other instances. Per Lord Ellenborough, in Fisher v. Samuda, 1 Campb. 193. (y) Hull. N. P. 254. Rex v. Culpepper, Skin. G73. f jSee 1 Stark. Ev. 379, [New ed. 348,] note (2) that in New York and Pennsylvania, call- ing for and inspecting a paper do not make it evidence.} » Eng. Cora. Law Reps. xl. 44. " lb. iii. 224. " lb. xxxvi. 550. •> lb. xi. 299. « lb. xxxvi. 550. f lb. iii. 224. t lb. ii. 283. 747 OF EviDENcr:. [book vi. Original inc.(A) In secondary evidence there are no degrees, that is no precc- musM)"''"'^ dence or superiority in point of admissibility. An attested copy of a proveil to written instrument is not of a superior order of proof to an examined have boon copy, nor is an examined copy superior to parol evidence of the coa- cuted. tents. (_/) As soon, therefore, as a party has accounted for the absence No degrees of the original document, he is at liberty to give any kind of secondary ary evi- evidence. (A) The evidence of any one who recollects the contents of (lence. a letter, is good secondary evidence of it,(l) although it is in the party's '^'^' power to produce the clerk who wrote the letter. (7?r) If it be necessary Of alioonse to prove the contents of a license to trade granted from the crown, to trade. pj-Qof of its loss is not enough to let in parol evidence of them, because there must be some register of it at the secretary of state's office, and that register would be better than parol evidence. (n) So where it was Ofanaffi- proposed to prove that defendant was owner of a ship, by means of his davit of affi lavit, sworn for the parpose of obtainino; a certificate of reo;ister, ownership ' i ■ 11 of ship. and a proper ground for the reception of secondary evidence has been laid, L'ird Ellenborough held, that an entry in the register-book of the Custom-house, stating that the certificate had been granted on an affi- davit of the defendant that he was owner, was not admissible as second- ary evidence. The collector's clerk, or some person who had seen the affidavit, and knew that it was made by the defendant, ought to have Of lost a- been called. (o) Where there are two parts of a written agreement, AT^'bv'un ^'^^^ executed at the same time, the one stamped and the other unstamped, stamped the unstamped part is admissible as secondai-y evidence of the contents counter- ^f (.j^g stamped part.(^) So where there was a properly stamped agree- ment under seal, and a counterpart of it unstamped^ and the plaintiff proved the loss of the deed itself, and proposed to read a draft copy in evidence, it was held that the unstamped counterpart, which was pro- ducexi after notice by the defendant, might be read as secondary evidence of the contents of the lost deed.(^q) A copy of a copy of a document in the possession of the defendant, who had received notice to produce the document, was offered as se- *748 condary evidence of the contents, being produced by a witness, *who stated that he had compared it with the first copy, which he had com- (h) By Lord Hardwicke, C. J., in Goodier v. Lake, 1 Atk. 246. (./) 2 Phill. Ev. 236. It was formerly thought the next best evidence of a deed was a counterpart. Bull. N. P. 254, and see Munn v. Godbold,* 3 Bing. 292, and if there were no counterpart, an examined copy, 1 Phill. Ev. 438, 6th ed. (k) Per Parke, B., Doe d. Gilbert v. Ross, TM. & W. 102. In that case on the trial of an ejectment by the same lessors of the plaintiff against a different defendant, a deed was given in evidence on the part of the defendant, and it was held that the short hand writer's notes of the contents of the deed were admissible in evidence, although there was an attested copy, which being unstamped was rejected. In Browne u. Woodman,'' 6 C. & P. 206, Parke, J., held that parol evidence of the contents of a letter was admissible, although a copy of the letter existed. In Doe d. Morse v. Williams, <= 1 C. & Mars. 615, Patteson, J., held that parol evidence of the contents of a notice to quit was admissible, although no notice had been served to produce the copy of the notice served on the defendant. In Hall v. Ball,'' 3 M. & Gr. 242, in trover for an expired lease by the lessor, the lease or counterpart executed by the lessor not being produced by the defendant upon notice, it was held that the lessor might give parol evidence of the contents without producing the counterpart executed by the lessee. (/) Liebman v. Pooley,* 1 Stark. N. P. C. 167, by Lord Ellenborough. But a copy of the original copy of a letter, is not good secondary evidence, ibid. (m) Rex V. Chadwick,f 6 0. & P. 181, Tindal, C. J. (n) Rhind i-. Wilkinson, 2 Taunt. 237. Eyre v. Palsgrave, 2 Campb. 605. (0) Teed v. Martin, 4 Campb. 99. '[p) Waller v. Horsfall, 1 Campb. 501. [q) Munn v. Godbold,? 2 Bing. 292. Sec also Garnons v. Swift, 1 Taunt. 507. » Eng. Com. Law Reps. xi. 108. ^ lb. xxv. 358. -^ lb. xl. 334. ^ lb. xlii. 133. e lb. ii. 340. f lb. xxv. 344. g lb. xi. 108. niina- tidri to im- f'n.AP, r. § II.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. 748 pared willi tbe original docuiucnt, AklL-rsoii, B., rcjectcil tho proposed jToof.^/-) There are some particular cases, where the rule that the best possible Cases ovideiice must be produced, has been relaxed. "Where it is necessary ^yj|. ig y^_ to prove an entry in a public book, the original book need not be shown, lnxiil. but from a principle of general convenience, an examined copy will be,']"! '" admitted. (>■) The post-oflice marks in town or country, proved to be Pi.^-offico such, are evidence that the letters, on which they are, were in the office '""'■'^'*- to wliich those marks belong at the dates those marks specify ;(/) but a mark of double postage on such a letter is not in itself evidence that the letter contained an enclosure, (?/) and it has been held that the post- mark is not evidence for the purpose of proving that the letter was put into the post-cflfice at the place mentioned by such post-mark. (r) The iMustcr- nnister-books of the king's ships, documented in the navy-office, to ""^ *' which returns are regularly made b}' the commanders, of the names, &c., of their respective crews, may be admitted as evidence of the persons therein named having served on board the several ships in the capacity there mentioned.^?/-) So in the case of all peace officers, justices of the Persons peace, constables, etc., it is sufficient to prove that they acted in those "'^'Vr.*' '"* . . . . . iiurilicta- characters without producing their appointments ;(.7;) and that even in a ,,„(.,, y. case of murder. (^) A witness may be examined on ihe voire dire as On the to the contents of a written instrument, without notice having been '""'^ '''"• given to produce it. (2) And where a witness is cross-examined for the On cross purpose of impeaehine bis credit, such cross-examination is sometimes ''•■^'■' . . . tidri to 1 allowed to be conducted without regard to the rule under consideration. j,oath a Thus, an accomplice or other witness, who appears for the crown on a ^^mess's criminal prosecution, is often asked on the part of the prisoner, without*" any objection, whether he has not himself been tried for some offence, although if the rule were strictly applied, that fact could only be proved by the best possible evidence, n';:., the record. (o) So it has been argued by a very eminent writer, that a witness may be asked on cross-exami- nutioi), fur the purpose of trying his credit and veracity, whether he has not given an account in a letter different from his present testimony, without regard to the objection thai the letter itself is the best evidence, Ruie ap- aud therefore the parol evidence of the witness inadmissible ;(/>) for. the l'''*'r')fsorao of the issue, or of some fact material to the issue. (e) rriit'o'the" •Whatever a party .says, or his acts amounting to admissions, are evi- issue, dence against himself, though such admissions may involve what must *(40 (r) Kvcringham v. IJoundell, 2 M. & T^ob. 138, as cited 2 Pliill. Ev. 2.30. " This cvidenre was manifestly defective, it did not appear tliat the witness had compared the copy produced Willi tlie orif^inal (lociinient. After the rejection of this second copy, jjarol evidence of the original document would have been admissible." Ibid. («) 1 Phill. Ev. -i.'.-'J. (<) Rex v. Plumcr, Pvuss. & Ry. 204. Ante, vol. 1, p. 259. (v) Ibid. (!') Re.x V. Watson, 1 Campb. 215. Ante, vol. 1, p. 259, and Fletcher v. Braddvll,» 3 Stark. N. P. C. 04. («•) Ante, p. 483, Rhode's case, 1 Leach, 24. And see Aide's case, 1 Leach, 300, where it was held that the daily book of a prison is good evidence to prove the time of a prisoner's discharge. (x) 1 Phill. Ev. 432. Ante, p. 732. (;/) Hy Rullcr, J., in Bcrryman v. Wise, 4 T. R. 366. (zj Ilowell V. Locke, 2 Campb. 15. (a) 2 Phill. Ev. 428, et seq. [b] 1 Pbill. Ev. 200, 7 Ed. (c) 1 Phill. Ev. 301, 7 Ed. » Eng. Com. Law Reps. xiv. 164. tions on walls, Ac 749 OP EVIDENCE. [BOOK VI. Statements nccossarilj be contained in some deed or writing. ((7) The reason why wrltin"-'"^ such parol statements arc adinis^sible, without notice to produce, or ac- counting for the absence of the written instrument, is that they are not open to the same objection which bck^n^-s to parol evidence from other sources where tlie written evidence might have been produced, for such . evidence is excluded from the presumption of its untruth, arisiug from the very nature of the case, where better evidence is withheld ; whereas, what a party himself admits to be true, may reasonably be presumed to be so.(c) Fact of If the fact of the occupation of land is alone in issue, without respect tenancy. ^^ ^■^^ terms of the tenancy, this fact may be proved by any competent oral testimony, such as payment of rent, or declarations of the tenant, notwithstanding it appears that the occupancy was under an agreement in writing ; for here the writing is only collateral to the fact in ques- tion. (/) Bat if any of the terms of the tenancy, as for example, who is the lessor, or what is the rent, are in issue, and it appears that there was a written contract for the tenancy, such contract must be pro- duced. (r/) Inserip- Inscriptions on walls, and fixed tables, mural monuments, gravestones, surveyors' marks on boundary trees, as they cannot be conveniently pro- duced in court, may be proved by secondary evidence. (/;) Such excep- tions are in cases where the material on which the document is written is not easily removed ; as in case of things fixed to the ground or to the freehold, for the law does not expect a man to break up his freehold for the purpose of bringing a notice into court. But that ground for exception does not apply to the ease of a notice painted on a board, fast- ened by a string to a nail in a wall, as there could be no difficulty or in- convenience in removing the board from the nail on which it was hung, and producing it in court.(i) {d) Per Parke, B. Slattcrie v. Pooley, 6 M. & W. 6G4. (c) Per Parke, B., ibid. In Earle v. Packen, 5 C. & P. 542, Parke, B., held that a witness might be asked whether he had not heard the defendant say that a person had agreed to give a certain sum for an estate. In Shxtterie v. Pooley, after a composition deed and sche- dule had been produced and the latter not being duly stamped rejected, evidence of a verbal admission by the defendant that the debt mentioned in the declaration was the same with one entered in the schedule, was held admissible, for the purpose of proving the third issue in the cause. Bloxam v. Elsie,* R. & M. N. P. R. 187, was expressly overruled in this case. In Howard v. Smith,'' .3 M. & Gr. 254, the question in an action of rejilevin was, whether the planciif held under a demise at the rent of 20^., payably quarterly, and evidence of verbal statements of the plaintiff that he so held were hold suificient, although it appeared that the tenancy was created by adopting the terms of a former demise in writing, which was not produced. (f) Greenl. Ev. 100. Rex v. The Holy Trinity, Kingston upon IIull,'^ 7 C. & P. Oil ; 1 M. & R. 444. (-7) Rex V. Rawden,d 8 B. & C. 708. Rex v. Merthyr Tidvil,<= 1 B. & Ad. 20. Doe v. Ilar- vey,f 8 Bing. R. 2:id. {h) Greenl. Ev. IOC, citing Doe d. Coyle r. Cole,s 6 C. & P. 359, Patteson, J. Rex «;. Fur- sey,'' 6 C. & P. 81, Parke, J. and Gaselee, J.; where the contents of a paper notice affixed to a wall were proved by a copy. Parol evidence, however, is admissible in such cases. Doe V. Cole. {i) Jones V. Tarleton, 1 Dowl. P. R. (N. S.) G25, 9 M. & W. 675. » Eng. Com. Law Reps. xi. 4G8. ^ lb. xlii. 139. <^ lb. xiv. 101. '' lb. xv. 320. e lb. XX. 337. ' lb. xxi. 28G. s lb. xxv. 438. >" lb. xxv. 29:;. CHAP. I. § III.] OF HEARSAY EVIDENCE. *750 •SECT. III. Of Hearsay Evidence. Theui; is nu rule in tlic law of evidence more important or more frc- General qucntly applied than the general one, that hearsay evidence of a fact is'""'*' thnt not admissible. If any fact is to be substantiated ajiainst a person, it !:'!'r^^« ;. ought to be proved in his presence by the testimony of a witness sworn imuliuissi- to speak the truth; and the reason of the rule is, that evidence ought '''*"'• to be given under the sanction of an oath, and the person who is to be affected by the evidence may have an opportunity of interrogating the witness as to his means of knowledge, and concerning all the particulars of his statement. (y) There are, however, certain instances which it will be the object of this section to point out, where hearsay evidence is ad- missible, because cither the objection does not apply, or from the neces- sity of the case the rule is relaxed. When hearsay is introduced, not as a medium of proof in order to lie.irsay establish a distinct fact, but as being in itself a part of the transaction l"""tof the in question, it is then admissible ; for to exclude it might be to exclude ti,,n, „r re» the only evidence of which the nature of the case is capable. (/.:)■}" Th us .'/''•''<«• in Lord Geurgc Gordon's case, on a prosecution for high treason, it was held that the cry of the mob might be received iu evidence as part of the transaction. (/) And generally speaking, declarations accompanying acts are admissible in evidence as showing the nature, character, and objects of such acts. Thus where a person enters into land in order U) 1 Pbill. Ev. 229, 7 cd. ; 206, 9 ed. {k) Rose. Ev. 30. (Z) 21 How. St. Tr. 535. j- [Thus the declarations of the prisoner may be admitted to account for his silence, \\ here that silence would operate againt him. The U. States v. Craig, 4 Wash. C. C. Rep. 729. So it lias been held, that in an action against a voluntary bailee, for the loss of goods by carelessness and negligence, be may give in evidence his own acts and declarations, im- mediately before and after the loss, to repel the charge. Tompkins v. Saltmarsk, 14 Serg. k it. 275. Whenever the conduct of a person at a given time becomes the subject of inquiry, his c.Npressions as constituting a part of his conduct and indicating his intention cannot bo rejected as irrelevant but are admissible as part of the res gesla. Tenncy v. Evans, 14 New iiiimp. 3.'j3. The declarations of a party are admissible in his favour where they are so connected with >«)me material act as to explain or f[ualify it, or show the intent with which it was done. HiishHI v. Frishic, 19 Connecticut, 205. Where several persons came to house from which another came out, and a fight ensued, which resulted in the dciitli of one of the former, it was held, that on tlie trial of the party thereupon indicted for murder, a witness might be asked to state what conversation took pl:.cc just before the affray, whilst the deceased, the witness, and others were together, in relation to the subject-matter of an existing dispute between the defendant on one side, and tlie deceased or anotiier person or either of them on the other, in relation to their going together to the house and their purpose in going there. Stevart v. T/ie State, 19 Ohio, .^02. Three lirothers, Nicholas, .John and William were indicted for murder, Nicholas as accos- saiy before the fact, John and William as principals. Upon the trial of John and William, the court held, that the governnieut witliout having sliown any consi)iracy or confederacy between the said John and Nicholas his lirother might be permitted to i)resent to the jury evidence of expressions c»f hostility towards the deceased uttered by the saiil Nicholas in the presence of John, but not res[ionded to or acquiesced in by him, as testimony, which, taken in connection with the friendly and fraternal relations existing between the saidJohn and Nicholas, might go to prove a motive on the jjart of John for committing the crime. Held further that evidence having j^assed of expressions of hostility on the part of Nicholas uttered in the presence of John, evidence might further be admitted of a cause for hostile feelings on the part of said Nicholas towards the deceased. The State v. (Jordan, 1 Rhode Island. 179.] 750 OF EVIDENCE. [bOOK VI. to take advawlage of a forfeiture, to foreclose a mortgage, to defeat a disseisin or the like ;(m) or changes his actual residence, or is upon a journey, or leaves his home, or returns thither, or remains abroad, or secrets himself; or, in fine, does any other act material to be under- stood ; his dcclurulions made at the time of the transaction, and expres- sive of its character, motive, or object, are regarded as << verbal acts indicating a present purpose and intention," and are therefore admitted in proof like any other material facts. They are part of the res (jesfas.{n) Thus, v?here a constable, who was indicted for a forcible entry into a house, had searched the house, having a warrant in his hand. Lord Ten- terden, C. J., held that what he said at the time as to who he was search- ing for, was admissible, although the question was asked by his counsel, and the answer might be in his favourYo) *751 *In an action by a husband and wife for wounding the wife. Lord C. Comphiints J. Holl allowed what the wife said immediately upon the hurt received, '"•* *■ and before she had any time to devise anything for own advantage, to be given in evidence as part of the res (jestae.[p") So on an indict- ment for manslaughter, in killing a party by driving a cabriolet over him, it has been held that a statement made by the deceased imme- diately after the accident, as to the cause of the accident, is admissi- ble. (§') And Lawrence, J., said, in Aveson v. Lord Kinnaird,(/-) that it is in every day's experience, in actions of assault, tliat what a man has said of himself to his surgeon is evidence, to show what he suffered by the assault. Inquiries of patients by medical men, with the answers to them, are evidence of the state of health of the patients at the time; and what were the symptoms, what the conduct of the parties them- selves at the time, are always received in evidence upon such inquiries, and must be resorted to from the very nature of the thing.(s) So, on Robbery a prosecution for robbery, it has been held, that the fact of the party and rape, robbed making a complaint to a constable shortly after the robbery, and mentioning the name of a person, as the name of one of the persons (w) Co. Litt. 49 h, 245 b. Robinson v. Swett, 3 Greenl. 316. 3 Bla. Com. 174, 175. [n) Greenl. Ev. 130, citing Bateman v. Bailey, 5 T. R. 512. Rawson a. Haigh,» 2 Bingh. R. 99, Newman v. Stretch,*' M. & M. 338. Ribley v. Gyde,^ 9 Bingh. 349. Smith v. Cra- mer,'' 1 Bing. N. C. 585. Gorham v. Canton, 5 Greenl. 20(5. Fellowes v. Williamson," M. k M. 30G. Vacher v. Cock3,f M. & M. 353. 1 B. & Ad. 145. (o) Rex V. Smyth, s 5 C. & P. 201. And see 1 Stark. Ev. 62, 350, 351. Walters v. Lewis,>» 7 C. & P. 344. Where an agent paid money into a bank, Littledale, J., held that what he said about the money at the time he paid the money into the bank was admissible. Reg. v. Ilall,' 8 C. & P. 359. The learned judge admitted the evidence, on the ground that it was a declaration by an agent acting within the scope of his authority ; but it seems equally admissible as a declaration accompauiii^- Uic act of payment, and explanatory of the pur- pose of the payment. C. S. G. {p) Thompson v. Trevanion, Skin. 402, cited by Lord EUenborough, C. J., in Aveson v. Lord Kinnaird, G East, 193. (7) Rex V. Foster," 6 C. & P. 325, Park, J. A. J., Patteson, J., and Gurney, B. (r) 6 East, 193. 1 Phill. Ev. 191. (s) By Lord EUenborough, 6 East, 195. "When a patient enters into a history of his complaint, and relates some earlier symptoms experienced at a former period, he is giving a narrative from memory rather than yielding to the impressions forced upon him by his situation; and it would seem, upon princii)le, that what he (so) says ought not to be re- ceived in evidence." 1 Phill. Ev. 191, and " although it is now settled that what a patient says to a medical man about his sufferings is receivable in evidence, it should seem that a statement by him respecting the particular cause of his sufferings (as for example, the cir- cumstance of an assault which he had received,) would be open to agreater objection." 1 Phill. Ev. 192. * Eng. Com. Law Reps. ix. 335. ^ lb. xxii. 330. « lb. xxiii. 304 ^ lb. xxvii. 498. 'lb. xxii. 316 f lb. xxiv. 332. e lb. xxiv. 279. ^ jb. xxxii. 535. ' lb. xxxviii. 437. k lb. XXV. 421. CHAP. I. § III.] OF HEARSAY EVIDENCE. 751 who had robbed him, is adinissiblo, but Tiot the name so i*ontionod.(/) So, on a prosecution for a rape, it has been held, tliat the jiroi^ccutor may prove that the woman made a coniphiint^reccntl}' ;fflcr the in- jury ;('')t so it has also been considered allowable, on an indictment for an assault on an infant of five years old, with intent to ravish her, to give evidence of the child's having complained of the injury recently after it was received. (r) But the particulars of such a complaint arc not admissible in evidence on the part of the prosecution. (*/) It is not, therefore, competent, on the part of the prosecution, to ask what name the prosecutrix mentioned at the time she made such a com- plaint. (.<;) And although what the prosecutrix said at the time of the committing the offence would be receivable in evidence, on the ground that the prisoner was present, and the violence going on, yet, if the violence was over, and the prisoner had ^departed, and the prosecutrix ''7''">- had gone on running away, crying out the name of the person, it wuuld not be evidence. (^) The fact of the prosecutrix having made a complaint is only admis- sible for the purpose of confirming her testimony ; in case, therefore, of her death, or absence from any cause, neither the particulars of the complaint, nor the fact of such complaint having been made, are admis- sible in evidence. (:i')| (/) Rex V. Wiiik,» G C. & P. 397, Pattcson, J. It was also lieKl that tlic constable iiiiglii be asked whether in consequence of the prosecutor meutioninj,' u name to him, he went in search of any person, and who that person was; but in Reg. c. Osborne,'' 1 C. & ^lars. C2J. this point was questioned by Crcssweli, J., who said, " it seems to me to be rather too re- fined a distinction to prevent tiie name from being mentioned, and yet permit it to be asked whether in consequence of wliat was said the witness apprehended a particular person. I think you ouglit not to go so far as that." (m) Re.\ )'. Clarke,' 2 Stark. X. P. C. 242. Such evidence is now considered quite cssoi- tial in order to support the statement of the prosecutrix. C. S. G. (v) 1 P. C. c. 10, s. 5, p. 444. Ante, vol. 1, p. 695. he) 1 Phill. Er. 193, ante, vol. 1, p. 689, note (c). (z) Rex V. Osborne,'' 1 C. & Mars. 622, Crcssweli, J. But the counsel for the prisoner ma_\ . if he thinks fit, ask tlie prosecutrix as to the term of the complaint, and if he docs so the counsel for the prosecution has a right to examine as to all that was said by iier in the same conversation. C. S. G. (//) I'er Crcssweli, J., Reg. i'. Osborne, si/jn-a. (x) Reg. V. Megsou,« 9 U. & P. 420, Rolfe, B. Reg. v. Guttndges,^ 9 C. & P. 471, Parke B., ante, vol. 1, p. 690; 1 Phill. Ev. 193. f [In a prosecution for a rape, the statement made by the female immediately after the transaction, may be given in evidence to corroborate her testimon}- given in court. LdUf/li- Vai V. The Slate". 18 Oliio, 99.] X [Cpon tlic trial of an indictment for rape, the declarations of the injured female madi' immediately after the alleged offence, are not admissible evidence for the jirosecution t<> prove the offence committed ; an'ecovery j^ |.^j..^^Jq^ ^^ ^^^^ deceased, and a surgeon proved that he had told the however ' i i c ^ slight, deceased that she would not recover, and that she was perfectly aware renders a ^^ Yicy danger. She said she hoped the surgeon would do what he could inadmis-" for her for the sake of her family ; he told her there was no chance of sible. iier recovery. Bosanquet, J., << This shows a degree of hope in her mind. To render a declaration of this kind admissible, the deceased Hayward's i""st have had the impression on her mind of an almost immediate dis- ease, solution. This will not do."(/.') So where upon an indictment for murder it appeared that after the surgeon had examined the wound, the deceased inquired whether he was in danger, to which the surgeon answered that he was, and the only chance of his living was keeping himself quite quiet; upon which it was contended that the declarations made by the deceased were not made at a time when every hope in this world was gone, and when the party was aware that he must inevitably answer soon for the truth or falsehood of his statements, but that upon the surgeon's statement he must be taken to have had some hope of recovery. On which Tindal, C. J., observed that any hope of recovery however slight, existing in the mind of the deceased at the time of the declarations made, would undoubtedly render the evidence of such de- clarations inadmissible. But upon further examination of the surgeon it appeared that before the declarations were made on the following evening, the deceased knew that he must die, and that the magistrate, previous to his receiving his declarations, desired him as a dying man to tell the truth, and that the deceased replied that he would. Upon this further evidence the declarations were held admissible. (?) So where Van upon an indictment for manslaughter, it was proposed to give in evidence Biitcheii's ^ declaration of the deceased, and a surgeon was called, who stated lief that Lc that he saw the deceased on the evening of the day on which the injury will not re- -^^as inflicted, and that the deceased appeared to think that he should ^^''^^- never recover. He said, " I feel' that I have had such an injury in the bowel that I think I shall never recover;" the surgeon endeavoured to encourage him, as his symptoms were not then such as to lead the surgeon to consider him in danger of dying ; but his expression was, that he felt satisfied that he should never recover. This was on the 10th of May, and the deceased died on the 17th. Hullock, B., " The prin- ciple on which declarations in articulo mortis are admitted in evidence, (k) Rex V. Crockett,* 4 C. & P. 544. (/) Rex V. Hayward,'' G C. & P. 157. It is not stated in this case when the deceased died. Where the deceased said, " I never thought I should recover; I have no great hopes of it now," Littledale, J., thought that it expressed some hope, thougli not a very great one, and inclined to disallow the reading of the declaration ; but before he decided, the prosecutor's counsel waived it, as a dying declaration. Wilson's case, 1 Lew. 18. ^Eug. Com. Law Reps. xix. 518. ^ lb. xxv. 331. CHAP. I. § III.] OF HEARSAY EVIDENCE. 7o'> is, that tbcy are made under an impression of almost immediate disso- lution. A man may receive an injury from which he may think that he shall ultimately never recover,' but still that would not be bufficient to dispense with an oath. I must reject the evidence. "(»i) *In order to render a dying declaration admissible, it must be shown *75(i to have been made under such circumstances as necessarily exclude the Ev«Jry hope supposition that the deceased might at the time entertain some hope of "„J],^j*^||y° " recovery. On an indictment for murder, the clerk of the magistrates, ii»Mirily be who had taken down a statement made by the deceased while at an '•'•'"-■'"'''-'''• infirmary, a short time previous to his death, proved that he asked the deceased how he was, and he answered, " I think myself in great dan- ger;" and Simpson's case,(/i) being cited, Patteson, J. said, "Neman can have a higher respect for the opinion of Mr. J. Bay ley than I have, but I have always considered that in order to a statement being received as a dying declaration, it must be shown that at the time the deceased made it, not merely that he considered himself in danger, but that he was without hope of recovery. It docs not appear to me that the words < I think myself in danger,' necessarily exclude the supposition that the deceased might have, nevertheless, entertained some hope."(o) The absence of any settlement of aflairs — of directions as to his fune- Ahsence of ral — of takiu'T leave of his friends and relations, and such like, tends to ■°'L'''.'"S ... . nffairs, show that all hope of recovery is not vanished from the mind, and may uiking sometimes exclude a dying declaration. Upon an indictment for mur-1'*^'' ofro- der, it was proposed to give in evidence a declaration of the deceased, ivieuds Ac. and his widow stated that she went to fetch the deceased home after he was hurt. He took to his bed the day after, and on that evening she asked him how he was, and he said he was worse, and that he should die this time. Ue died on Sunday, seven days after that. lie was at some times light-headed, and at some times not. lie several times had his children in to take leave of them before the Saturday. The brother proved that the deceased at times thought that he should recover, and at other times thought that he shuuld nut. Another witness proved that on the day before he died he said he thought he should not recover; he was delirious at times on that day. On the Wednesday before his death he said he thought he should recover ; he was then very ill, but sensible ; on the day before he died, he was not sensible when the wit- ness first saw him ; he became sensible at twelve, and remained so for an hour. The witness asked him if he thought he should recover, and how he was ; he said ho thought he should nut recover ; he was so very ill. lie did not take leave of his wife or give any orders about his funeral or his will, nor did he say any pi-ayers. The surgeon proved that he was delirious from Thursday, but was sensible on Friday. The surgeon considered him in danger on the Thursday, but his opinion was nut commuuicated to the deceased. Coleridge, J., " It is an extremely painful matter for me to decide upon; but when I consider that this (m) Rex V. Van Butchcll,» 3 C. & P. fi20. The learnrd Raron also s.iid, " I must hear all that the deceased said, and I must judge from what he said whether he hud that impression on his minil wliich will make his declarations admissible iu evidence.'' (n) 1 Lew. 78. In this case the doctor said, " You are in great danger ;" the doroased said. "I fear I am.'' He soon recovered so much as to be out of danger, or to think himself so. Bayloy, J., admitted the declaration, under the above circumstances, without a question. This is the whole report. C. S. G. (o) Errington's case, 2 Lew. 148. * Eng. Com. Law Reps. xiv. 493. 756 OF EVIDENCE. [BOOK VI. species of proof is an anomaly, and contrary to all tlie rules of evidence, and that if received it would have the greatest weight with the jury, I think I ought not to receive the evidence, unless 1 feel fully convinced that the deceased was in such a state as to render the evidence clearly *757 admissible. It appears from the evidence of the witness that the *de- ccased said that he thought he should not recover. • Now, people often make use of expressions of that kind, who have no conviction that their death is near approaching. If the deceased in this case had felt that his end was drawing very near, and that he had no hope of recovering, I should expect him to be saying something of his affairs, and of who was to have his property, or giving some directions as to his funeral, or as to where he would be buried, or that he would have used expres- sions to his widow importing that they were soon to be separated by death, or that he would have taken leave of his friends and relations in a way that showed that he was convinced that his death was at hand. As nothing of this sort appears, I think that there is not sufficient proof that he was without any hope of recovery, and that I, therefore, ought .Megson's to reject the evidence. "(p) So where on an indictment for murder it case. ^jjg pi-oposed to give in evidence a declaration made by the deceased, and the surgeon proved that on the day but one before her death she complained of her chest, and was suffering from inflammation of the lungs ; she was extremely ill, and he then told her she was in a very precarious state : and on the day before her death she was much worse, and in his judgment in imminent danger; she then made a statement to him ; immediately before she made the statement she said that she found herself growing worse, and that she had been in hopes she should have got better, but as she was getting worse, she thought it her duty to mention what had taken place. She died the next day. Rolfe, B., ''I think that it does not sufficiently appear that the de- ceased was without hope of recover}'. I think that I ought not to receive the evidence. "(§') Mosley's _ The case of Rex v. Mosley(?-) aflPords an example of what is such a sufficiently consciousness of danger as will render a declaration admissible; and appearthat further shows, that if it sufficiently appear that such a consciousness ' ^^ **]" existed, it is immaterial that death did not ensue until a considerable i-easeu was ' . impressed time after the declarations were made. Upon an indictment for murder, with the ^ question arose respectiuer the admissibility of certain declarations, I'ODVlCtlOU. X cj •/ ^ that he which were received in evidence, as the dying declarations of the de- shouldsoon ggaged, as to the circumstances attendino; the commission of the crime, die the de- o > I'larations ^^^^ ^^ ^^ *^6 number of persons by whom he had been attacked. The are admis- injury that caused the death was done on the 30th of September, in ihoiifh the consequence of which he was brought home and put to bed, and a sur- death does geon was sent for on that evening to attend him. When the surgeon t'U some'^*' arrived, the deceased immediately complained to him of great pain in days after- his chest, and particularly of his side, and of great difficulty of breath- wards, and jj^g_ rpjjg sm-ffcon continued to attend him until his death on the even- thouffii tll6 - surgeon ing of the 10th of October following. The surgeon in his evidence does not sai(j^ a J think the deceased did not speak to me of his prospects of case hope- ^J^^8 during that time ; I thought his state dangerous ; I thought his (p) Rex T. Spilsbiiry,* 7 C. & P. 187. The report does not state at what time the pro- posed declaration was made. (q) Reg. V. Megson,b 9 C. & P. 418. (/•) R. & M. C. C. R. 97. * Eng. Com. Law Reps, xxxii. 487. ^ lb. xxxviii. 172. CHAP. I. § III.] OF HEARSAY EVIDENCE. 7oT complaint was of that nature that it might tcnuiuato iii death. The ^'^-^'.'^"^ hist day that I saw him, the lUth uf Oettjbcr, 1 was certain he would ^^^ ^^.l^ ^jjg die that furenoon ; I communicated to him his state, I told him the J»;coa*cd so case was hopeless; I made no communication to him till then; I did jJJ ' j- ^jg not consider the *case quite hopeless till then ; I always told him there death. was danger, but I hoped he would be better; I held out hopes to him *758 of his recovery; I do not know whether he entertained hopes or not; he never expressed any opinion either of hope or apprehension to me ; I thought there was a probability of his recovering the day before he died ; 1 at first thought the probabilities were against him ; I did not communicate that to him." In consequence of this evidence of the surgeon, the learned judge confined the counsel for the prosecution, in their examination of the witnesses, to inquiries whether any and what declarations were made by the deceased ou this subject, after the time the surgeon made the above communication to him of his hopeless state; but no such subsequent declarations could be proved. This failing, it became material to inquire further as to the prior hopeless state of the deceased, and his consciousness of it from the commencement of, or during his illness, in order to ascertain whether declarations alleged to have been made by him during his illness, but prior to the above communication to him by the surgeon, were admis- sible in evidence or not. To this point a witness of the name of Anne Newton, stated, "That she was sent for to the deceased on the evening of the 30th September, near eight o'clock; that he was in a very ill state indeed ; that he said he was robbed and killed ; that he should not get the better of it ; that she assisted in putting him to bed, and con- tinued to attend him till his death; that during that time he spnke of dying, and said he would not continue long, a few days would finish him ; this he said about Tuesday; that he complained all along he was sure he would not get better; that he all along said he never would get belter ; that he never missed saying so one day before the latter end." This witness also stated, < intJioiit any qualification ; and the surgeon never heard him after od to it. Sunday express any hope that his skill would do anything for him. A brother and son-in-law of the deceased proved that they were sent for by him, and saw him on the Wednesday, and that he told them he could not live long, and could not recover. On that day the deceased told his brother that he wished to see him on account of his family, as he could not live long; and he said he wished his brother to take the manage- ment of his aifairs and family, for he could not stop in this world long. A clergyman also proved that he saw the deceased on the Wednesday, and told him he thought he would not recover, the deceased shook his head and said it was a bad job. The clergyman said, " Remember you are a dying, I hope you will state nothing but the truth." He said "I freely forgive the man. I fear I am dying." After that the deceased made a declaration. The deceased had previously asked the clergyman to make his will, and he had done so. It was objected that the decla- ration made on the Wednesday was not admissible. The observation made on the Sunday showed that the deceased entertained some hope, and therefore the declaration was inadmissible, and such declaration must be made under the firm belief of almost immediate death, which was not the case here, as he lived till the Saturday. (il) Patteson, J., <s"'- the deceased, she expressed an opinion that she should not recover, and that she made a declaration ; but it also appeared that after she had made this declaration, she, on the same day, asked her nephew if he thought she would " rise again ;" but it was proved that, on a subsequent day, she made other declarations, at times when she was convinced that she was dying. Gaselee, J., after conferring with Lord Denman, C. J., held that the declaration made on the Saturday was not admissible, but that the other declarations, made when she believed her recovery hopeless, might be received. (.:) And so where the prisoner was tried for the rape Minton's and murder of a girl of sixteen, who lived only a few days after the *''*®" perjjetration of the offence, the particulars of which she communicated to her aunt, but did not intimate that she considered herself in a dying state, or that she had any apprehension of immediate death. It appeared, however, that previous to making this declaration, she had confessed, been absolved, and had received extreme unction from a priest, and that these are considered the last rites administered in the Catholic Church, and are esteemed sacraments by its disciples. Lord Kilwardcn, C. J., with the concurrence of Kelly, J., admitted these declarations in evidence, (a) *It is not necessary that the deceased should express any apprehen- *7G1 (x) Smith's case, 1 Lew. 81. In Craven's case, 1 Lew. 77, a person who had been con- fined to his bed for weeks, said to a snrpreon, " I am afraid, doctor, I shall never get bettor," and shortly afterwards - .,.,^, .• <• • I til stances of transaction out or wluch the prosecution tor perjury arose. It was held the death accordiiijf to the rule above stated that the allidavil could not be read. (7) H'o subject In the case of Ilex v. Hutchinson, (/i) tried before Uuyley, J., the priso- "in,.,^-,^^" ner was indicted for administering savin to a woman pregnant, but not quick with child, with intent to procure abortion. The woman was dead, and for the prosecution, evidence of her dying declaration upon the sub- ject was tendered. The learned judge rejected the evidence, observing that althoutfh the declaration niifrht relate to the cause of the death still such declarations were admissible in those cases alone where the death of the party was the subject of inquiry. But where two persons died from the same act of poisoning, the de- Dothira- claration of one was held admissible on the trial of the prisoner for the ''''" ''' """^ • T ■ • • T^- • oftwoper- niurder of the other. On an indictment for poisoning King, it appeared sons dying that the poison was administered in a cake, which the deceased cat for '^'■°'" ^'^'^ breakfast, immediately after which he was taken ill, and his maid ser-'^' vant, who was present, and had made the cake, said that she was not afraid of it, and thereupon eat of it, and was in consequence poisoned and died. Her dying declarations (made after she knew of her master's death, and was conscious of her own ap})roaching death,j as to the man- ner in which she had made the cake, and that she had put nothing bad in it, and that the prisoner was present eating his breakfast at one end of the table while she was making the cake at the other end of it, were tendered in evidence, and objected to on the ground that the only person whose dying declarations could be received in evidence was the person whoso death formed the subject of iu(juiry at the trial; and the ])reced- ing case was relied upon. But Coltman, J., after consulting Parke, B., expressed himself of opinion that, as it was all one transaction, the de- clarations were admissible, and accordingly allowed them to go to the (/) By Abbott, C. J., Rex p. Mead,» 2 B. & C. G05. In trials for robbery the dyinj? decla- rations of tlio party robbed -were held inadmis.sible by Mr Justice Bailey, on the Northern ►Spring Circuit, 1822, and by Mr. Justice Best, on the Midland .Sprino; Circuit, 1822. And in liux v. Lloyd,"* 4 C. & P. 2:^3, by Holland B. In Rex v. Mead, in/ni, in the argument for the admissibility of the evidence, the counsel cited the case of Wright c. Littler, 4 Burr. 1244, in which evidence of a dying confession of the suljscribing witness to a deed was hcldadmissi- lilc, and a case mentioned by Lord KIIcni)orough, C. J., in G East, 105, in which Heath, J., received tlie confession of an attesting witness to a bond, who in his dying moments, bogged pardon of Heaven for having been concerned in forging the liond ; Abl)ott, C. J., remarked that these cases were peculiar, inasmuch as the declarations amounted to a confession by the parties themselves of heinous oflcnces which they had committed. See the observations of the Court of Exchequer in Stobart v. Dryden, 1 M. & W. 615, which render it at least very doubtful whetiier dying declarations would, at the present daj', be admissible in anv civil suit. 1 rhil. Ev. 280. [ff) Rex. V. Mead," 2 B. & C. 605. • (h) 2 B. & C. 608, in note to Rex v. Mead. •)• [Dying declarations arc admissible f"om the necessity of the case, to identify the prisoner, and establish the circumstances of the res gcfliv, or direct transactions from which the death results ; when they relate to former and distinct transactions they ilo not seemtocome within this principle of necessity. Nelson v. The Stale, 1 Humphreys, 542.] » Eng. Com. Law Reps. ix. 196. *> lb. xix. 360. ' lb. ix. 19G. 762 OF EVIDENCE. [bOOK VI. jury ; but he said be would reserve tbe point for tbe opinion of tbe judges. (/) Tbe declarations of the deceased are admissible only to those things to wbicb be would have been competent to testify, if sworn in tbe case. *763 They must, therefore, in general speak to facts only, and not *to mere matters of opinion, and must be confined to what is relevant to the issue. (,/)f Dying de- The declaration of a convict at the moment of execution cannot be a convk't" g'^cn in evidence as a dying declaration : for as an attainted convict he could not have been admitted to give testimony upon oath, and the dy- ing declarations of such a person cannot, consistently with the principles of justice, be considered as better evidence than his testimony on oath Of an ac- would have been if he bad been alive. (Z-) The dying declaration of au comphco. accomplice is admissible ;(/) but this can only happen where the pri- soner is charged with assisting in the self destruction of the accomplice : for it has already appeared that dying declarations are never admissi- ble, except where the death of the person who made them is the subject of the indictment. A parol It is no objection to the admission of a dying declaration, that the dying de- deceased made a subsequent statement to a magisti-ate, which was taken admissible down in writing, and is not produced. In the ease of Rex v. Reason though a and Tranter, (m) three several declarations had been made by the de- one^wa"*^" ccased In the course of the same day at the successive intervals of an made and hour each ; the second had been made before a magistrate, and reduced reduced to -^^^^ writing, but the others had not ; the original written statement taken before the magistrate was not produced, and a copy of it was re- jected. A question then arose, whether the first and third declarations could be received ; and Pratt, C. J., was of opinion that they could not, since he considered all three statements as parts of the same narrative, of which the written examination was the best proof; but the other judges held that the three declarations were three distinct facts, and that the inability to prove the second did not exclude the first and third ; and evidence of those declarations was accordingly admitted. (/i) When in But if the statement of the deceased was committed to writing, and >^riting. sifpied hy him at the time it was made, it has been held essential that the w^riting should be produced if existing, and that neither a copy nor parol evidence of the declaration could be admitted to supply the omis- sion. (o) AVhen jf \]^q. statement of the deceased had been taken on oath before a oath. magistrate, but is inadmissible as a deposition, in consequence of the ii) Pvpx V. Baker, 2 M. & Rob. 5.3. The prisoner was acquitted. \j) Creciil. Ev. 190. 1 Phill. Ev. 291. Rex v. Sellers, Carr. Supp. 23.3. (k) Drummond's case, 1 Leach, SSY, cor. Eyre, B., and Gould, J. (/) Tinkler's case, 1 East, P. C. 354. (m) 1 Stra. 149. G St. Tr. 502. 2 Stark. Ev. 36G. \n) Accordinj:^ to the report in the State Trials, the Chief Justice and Mr. Justice Powys, deemed the evidence inadmissible. At all events, it appears the evidence was received. Sir John Strange was one of the counsel in the cause. (o) Greenl. Ev. 190, citing Rex v. Gay,» 7 C. & P. 230. Trowter's case, 12 Vin. Abr. 118, 119. Leach v. Simpson, in Seac. Pasch. 1839, 1 Law. & Eq. Rep. 58. •}• [The dying declaration of a husband is competent evidence against the wife to show her guilt. Moore v. The State, 12 Alabama, 764. On the trial of an indictment for the murder of a wife by her husband, the declarations of the deceased made in extremis, as to the cause of her death, are competent evidence against the prisoner. The People v. Green, 1 Denio, 614.] * Eng. Com. Law Reps, xxxii. 499. CHAP. I. § III.] OF HEARSAY EVIDENCE. 763 prisoner not having been present when it was taken ; it is admissible as a declaration in articulo mortia, if taken under such circumstances as would render such a declaration receivable in evidence. (y>) It is not necessary that the oxaminatiDU of the deceased should be •7G4 conducted after the manner of interrogating a witness in the *case; As to the thoujfh any departure from this mode may affect the value and credi- "J* -f; ° bility of the declarations. Therefore, it is no objection to their admi.s- tlio ptutc- sibility that they were niade in answer to leading o prison- ter, a surgeon stated, that the deceased seemed perfectly sensible of the dangerous state he was in, and said he knew he would not get better, and afterwards .said, '< I don't think he would have struck me if I had not provoked him ;" Coleridge, J., at first expressed some doubt whe- ther he ought to receive the statement; but afterwards received the evidence, observing that it might have an influence on the amount of punishment. (^) As the declarations of a dying man arc admitted, on a supposition Prisoner in that in his awful situation on the confines of a future world he had no •'•« defence motives to misrepresent, but, on the contrary, the strongest motives to Uio^gtatoT.f speak without disguise and without malice, it necessarily follows, that i"i"J or the party against whom they are produced in evidence may enter into |^j!''^l"^"'?1 the particulars of his state of mind and of his behaviour in his last n>o- ceased, ments, or may be allowed to show, that the dccea.sed was not of such a character, as was likely to be impressed by a religious sense of bis ap- proaching dissolution. («) (p) Re.x V. Dingier, 2 Leacli, 501. Rex v. Callaghan, M'Niilly Ev. 385, Rose. Cr. Ev. Xi. {q) Grccnl. Ev. 190, citing Rex v. Fagent, infra, Commonwealth ik Vass, 3 Lcigli, R. 78(i. Rex V. Reason, 1 Sir. 499. Rex v. Woodcock, 2 Leach, 5G1, and see Rex o. Wulhourn, (nilr. p. 75.S. (/•) Rex I'. Fagent,* 7 C. & P. 238, Gasclee, J. (•?) Greenl. Ev. 190, citing Commonwealth v. Vass, 3 Leigh R. 797. (C) Rex V. Scaife, 1 M. & Rob. 551. The ground upon which dying declarations arc ad- missible being that they arc tantamount to statements made upon oath in the presence of tlie prisoner, and such statements being clearly adn^issil)Ie if in favor of the prisoner, there seems no reason to doubt the propriety of admitting a dying declaration which is in favor of the prisoner. Indeed almost every case of manslaughter, in which such declarations have been admitted, is an authority to that cfTect, as the prima facie j)resnmption is, that the pri- soner had murdered the deceased. And, moreover, a declaration in favour of a prisoner must ever be taken to be more likely to be true-, and it is not probable that a person should make a statement favour.ablc to the person who has inflicted a mortal injury upon him, but rather the contrary. U. S. G. (w) 1 Phil. Ev. 989. In Reg. v. Macarthy, Gloucester Sum. Ass. 1842, the case on the part f [It is no objection that the questions put to the dying person are leading ; but the decla- rations should be distinct and full, not partial and left unfinished. Vass v. The Common- ivca '/i. 3 Leigli, 78(3. I {Moore v. The State, 12 Alabama, 7G4.] » Eng. Com Law Reps, xxxii. 501. *765 OF EVIDENCE. [BOOK VI. If 11 child *If a chilli be too young to be capable of feeling the religious obliga- voun-'to tiousof an oath, his tleclarations arc inadmissible. Upon an indictment "be capable for the murder of a child aged four years, a statement made by the child sfanditf-^" *^ ^^^* "^"^^^^^'^ shortly before her death, as to the manner in which she the roii^i- had been treated by the prisoners, was oflPered in evidence. Park, J. A. ous obhgii- J uWc allow the declaration of persons in artkulo mortis to bo scivcn lion of ail . ' . ^ . ° tiuth liisde- in evidence, it it appear that the person making such declaration was chiratioTis then under a deep improssion that he was soon to render an account to s-ible. ^^'^ Maker. Now, as this child was but four years old, it is quite im- possible that she, however precocious her mind, could have had that idea of a future state, which is necessary to make such a declaration admissi- ble. In the deposition of the mother, I find it stated, that the deceased asked the deponent to lie down by her, which she did, and that on the child's asking her how long she would lie by lier, the mother replied, that she would lie by her till she got up; and that upon her saying this, the deceased said that she should never get up any more; and then went on to tell her mother of something that had happened. Now, this, though it shows that the deceased thought that she was dying, docs not show that she had any idea of a future state ; indeed, I think, that from her age we must take it that she could not have h;id any idea of that kind."(i') I5ut if a J3yt if a child Idc of intelligent mind, and fully comprehends the nature fully uii- of an oath, and the consequences, in a future state, of telling a falsehood, 'lerstand his declarations, made under the apprehension and expectation of im- l.ran^oath ^ii^diate death, are admissible in evidence Thus, where upon a trial liis deda- for murder, it appeared that the deceased, who was a little more than !'Y'°"'!;!'|f ten years old, received a severe wound from a gun on one day, of which if made un- he died the following morning: and in order to show his state when der the ap- pgj.j-jjj[Q declarations were made on the evening after he was wounded, a of immodi- surgeou was examined who said, <' I was of opinion the boy could not ate death, survive many days. I said to him, ' My good boy, you must know you are labouring now under a very severe injury, which in all probability you will not recover from, and the eifects of it will most likely kill 3'ou.' My father asked him if he was perfectly conscious where he should go if he told a lie, and where he should expect to go if he told the truth on the subject. In answer to the first he said he should expect to go to hell ; and to the latter that he should go to heaven. My father said nearly similar words to what I said myself. When he was told that he was not likely to recover, I could see a change in the expression of his countenance. The appearance of tears came into his eyes, and an ap- pearance, such as it difficult to describe, — an appearance of distress ; but he said nothing, that I can remember, expressing either assent or dissent. My father said to him, < You may recover, though in all pro- bability you will not.' " The father, also a surgeon, said, "I said to the deceased, after feeling his pulse and examining the wound, < My little man, you appear to me to be much more sensible than, from the nature of the prosecution wa^ tliat tlio prisoner had assaulted the deceased, and that the deceased followed the prisoner alonj^ several streets for the purpose of giving him into the custody of the police: and Erskine, .1., permitted the counsel for the prisoner to cross-examine the wit- nesses for the prosecution as to the bad character of the deceased, in order to show that the prisoner might have had a reasonable ground for supposing that the deceased followed him for the purpose of robbing him. C. S. G. (v) Rex V. Pike,^' 3 G. & P. 598. Park, J. A. J., had consulted Parke. J., before the case was tried, and he quite agreed with the view of the case stated in the text. *Eng. Com. Law Reps. xiv. 473. CUAP. I. § III.] OF HEARSAY EVIDENCE. 765 of the accident you have received, I should have expected. It is impos- sible for me to say *\vhether you may survive the injury or not. I think *7GG it more than probable that you will not, and that you may be dead before morning.' I then asked him if he was aware of the nature of an oath, lie made no reply. I then said, ' If you don't tell the truth, and how this accident occurred, whore do you expect to go?' He then said, ' to hell.' ' If you do speak the truth, I suppose you expect to go to heaven.' lie made no reply. I then told him, 'I put these questions to you, that, in case of your death, the truth of the accident may be ascertained,' or words to that effect. I don't think he made any reply. He expressed no opinion as to his state." On cross-examination he said, " I said you may recover ; it is impossible for me to say, but I don't think it likely that you will be alive by the morning." The child ap. peared at the time in a very debilitated state from the injury, but he appeared to be a very quick intelligent child. Upon a case reserved, it was contended that there Avas not sufficiently strong proof to show that there was a perfect belief in the mind of the deceased of approaching death, and that the apprehensions of death in a child were not enough to render his declarations admissible, unless he was shown to be aware of the nature of an oath; but the judges were unanimously of opinion that the statements were receivable if made under the apprehension and expectation of immediate death, and they all, (except Bosanquet, J., Patteson, .J., and Coleridge, J,,) thought that they were so made, and receivable. (jr) With respect to the effect of dying declarations, it is to be observed, Of tho effects of that though such declarations, when deliberately made, under a solemn jying de- and religious sense of impending dissolution, and concerning circum-claration!'. stances, in respect of which the deceased was not likely to have been mistaken, arc entitled to great weight(f) if clearly and distinctly proved, yet it is always to be recollected that the accused has not had the oppor- tunity of cross-examination — a power quite as essential to the eliciting of the whole truth, as the obligation of an oath can be, and without which no statement made on oath, however solemnly administered, is admissible under any other circumstances; and that where the deceased had not a deep and strong sense of accountability to his Maker, and an enlightened conscience, the passion of anger and feelings of revenge may, as they have not unfrequently been found to do, affect the truth and accuracy of his statements, especially as the salutary and restraining fear of punishment for perjury is, in such cases, withdrawn. And it is further to be considered that the particulars to which the deceased has spoken, were in general likely to have occurred under circumstances of confusion and surprise, calculated to prevent their being accurately ob- served, and leading both to mistakes as to tho identity of the persons and to the omi.ssion of facts essentially important to the completeness and truth of the narrative. (//) When a party comes to the conviction that he is about to die, he is in the same practical state as if called on in a court of justice under the sanction of an oath, and his declarations as to the cause of his death are considered equal to an oath, yet they arc nevertheless open to 'observation. For though the sanction is the sam-^, *76T the opportunity of investigating the truth is very different, and thcre- («)) Reg. r. Perkins,' 2 Moo. C. C. R. 1.35. 9 C. & P. 395, S. C. (x) See per Coleridge, S., Rex »•. Spilsbury, ante, p. 757. (y) Grecnl. Ev. 192. 1 Phill. Kv. 292. ' Eug. Com. Law Reps, xxiviii. 168. Vol. II.— 50 767 OF EVIDENCE. [bOOK VI. fore tbo accused is entitled to every allowance and benefit that he may have lust by the absence of the opportunity of more full investigation by the means of cross-examination. (s) It may be added also, that the deceased in many cases is labouring under injuries which may affect the brain, and prevent the possibility of reason guiding the words that may be uttered, and yet the means of ascertaining the state of his mind may y be such as to render it in the highest degree difficult to discover whether a statement has been made under a morbid delusion of the mind, or in the traiKjuil exercise of calm reason, operated upon alone by the awful consciousness that he must almost immediately render an account to an all-knowing Creator. Hearsay iu Hearsay evidence is also admissible for the purpose of proving public puWic*' rights, and rights in the nature of public rights. (a) Thus in questions riglitH, concerning the boundary of parishes or manors, traditionary reputation boiindarios j^ evidence \[h\ and the declarations of old persons deceased have been of parishes, i.,.-', ,, ,, .,. ii-i &c. admitted in such cases, aitnough they were parishioners and cJaimed rights of common on the wastes which their evidence had a tendency to enlarge. (c) But although general reputation is evidence on a question of boundary or custom, yet the tradition of a particular fact, (as that turf was dug or a post put down in a particular spot,) is not admis- sible. (i>oks liy proof of the delivery of the croods, or of other matter there stated within '^^''""^^'"^ his own knowledge. (»■) But where the effect of the entry is not to charge the servant, it is not evidence. Thus, in an action for the hire of horses, an entry by the plaintiff s servant since dead, stating the terms of the agreement with the defendant, is not evidence. (7) There seems, Entries in however, to be more reason for considering that a rule exists which ^'l", <"".""* allows of declaration of deceased persons being received in evidence, even though not made against their interest, provided that in addition to a peculiar knowledge of the facts, and the absence of all interest to pervert them, the declarations appear to have been made in the ordinary course of ofheial, professional, or other business or duty, and to have been immediately connected with the transacting or discharging of such business or duty, and to be contemporaneous, or nearly contemporaneous, with the transaction to which they relate. (^-) In all these cases, the Death of person who made the entry must be proved to be dead : if he be living, ||.*i"°madc he ought to be produced as a witness, to explain the circumstances un-tli«> entry der which the entry was made.(/) Where it appeared that an entry was '|"'*' ^^ in the handwriting of a banker's clerk, who was then in the East Indies, it was held inadmissible. (?») In some cases, also, the declarations of a person deceased are admit- ITearpay of ted on the mere ground that he had a peculiar knowledge, and no into- P*""""* o r o J having no rest to misrepresent. Thus, though the survey of a manor made by the interest to owner is not evidence against a stranger in favour of a succeeding™""^'®* owner j(») yet where A., seised of manors of B. and C, causes a survey to be taken of the manor of B., which is afterwards conveyed to E., and aftbr a long time there is a dispute between the lords of the manors of B. and C. about their boundaries, this old survey may be given in evidence. (o) So entries by a deceased rector or vicar as to the receipt of ecclesiastical dues are admissible for his successor, on the ground that he had no interest to misstate the fact.(/>) There are other exceptions to the general rule against the reception Other case? of hearsay evidence, such as the admission of declarations in cases of pedigree, and of old leases, rent-rolls, surveys, &c., which can occur so seldom in criiiiiiial proceedings, that it is thought necessary to take further notice of them in this treatise. ( • vour of in- IS sometimes counteracted by the presumption or law in ravour oi in- nocence nocence; which presumption, making, as it were, j^rimd facie case in drives the ^^^ affirmative for the defendant, drives the prosecutor to prove the ne- prosecutor gative.(c) Thus, on an information against Lord Halifax, for refusing the^neca- *° deliver up the rolls of the Auditor of the Exchequer, the Court of tive aver- Exchequer put the plaintiff upon proving the negative that he did not ments. deliver them ; for a person shall be presumed duly to have executed his ' ' * '^ office till the contrary appear. ("fZ) On an *indictment for obtaining money, &e., under false pretences, the prosecutor must prove the aver- ments negativing the pretences. In an action for the recovery of pen- alties under the hawkers and pedlars' act against a person charged with having sold goods by auction in a place in which he was not a house- holder, some proof of this negative, namely, of the defendant not being a householder in the place, would be necessary on the part of the plain- tiff.(f') On the trial of an indictment on the 42 Geo. 3, c. 107, s. 1, (repealed by the 7 & 8 Geo. 4, c. 27,) which made it felony to course deer on an inclosed ground, " without the consent of the owner of the deer," it ought to have appeared from the evidence produced on the part of the prosecution, that the owner had not given his consent. (/] (a) Gilb. Ev. 131. Bull. N. P. 298. (6) Rex V. Butler, Uuss. & Ry, 61. Rex v. Morton, ib. 19, in note to Rex v. James, ante, vol. 1, p. 209. But since the 4 Geo. 4, c. TG, a marriage by a minor vrithout consent is valid. Rex v. Birmino;ham, ante, vol. 1, p. 210. (c) The same rule applies in civil proceedings. The principal cases on the subject are, Monke v. Butler, 1 Roll. Rep. 83. 3 East, 199. Rex v. Hawkins. 10 East, 211. Poweilv. Mill- bank, 2 W. Bl. 851. S. C. 3 Wils. 356. Williams v. East India Company, 3 East, 193. Ilex V. Twyning, 2 B. & A. 386. Doe v. Wbitebead,^' 8 A. & E. 571. {(l.) Bull. N. P. 298. (e) 1 Phill. Ev. 494. (/) Rex V. Rogers, 2 Campb. 654. See also Rex v. Hazy and Collins,'' 2 C. & P. 458, and » Eng. Com. Law Reps. xxxv. 458. » lb. xii. 215. CHAP. II. § I.] OF THE PROOF OF NEaATIVE AVERMENTS. 770 But wlicre the affirmative is pcciilitirly withiu the knuwledgc of the ^"^ ''''" party charged, the presumptiou or law iii favour ot iniiocenee is not [;^^ j^^^ allowed to operate iu the manner just mentioned; but the general rule not oiM^r- as above stated applies, vjz., that he who asserts the affirmative i^* '''"iie'affirma- prove it, and not he who avers the negative. tiv- is po- Thus, upon a conviction under the 5 Anne, c. 14, s. 2, against a car-*^''!'l'"'y • 1 • • • 1 1 1 rr- • within the rier fur having game in his possession, it was held sufficient that the knuwludge qualitications mentioned iu the 22 k 23 Car. 2, c. 2o, were negatived in "ftl'c party the information and adjudication, without negativing them in the cvi- j^j|^^ dcncc.( M. & 8. 209. (i) MS. Palcy on Conviction, by Bowling, p. 45, n. (1). {S. P. Gallisou, 493. UaitcJ States i\ Ilayward.} 771 OF EVIDENCE. [book VI. general principle, and the justice of the case, is here against the defen- dant. It is urged, that if we decide against the defendant, we shall open the door to a great deal of inconvenience; that by no means fol- lows; this man might have produced his license without any possible inconvenience, which would at once have relieved him from all liability to penalties. Probably the whole inquiry before the magistrates was as to the fact of selling the ale, and that nothing was said about the license; but, however, I think by the general rule, the informer was not bound to sustain in evidence the negative averment, that the defendant had not a license. I do not mean to say that there may not be cases which may be fit to be considered as exceptions to that general rule ; there is no general rule to which there may not be exceptions ; all I mean to say is, that this is not one of those exceptions. The party thus called upon to answer for an offence against the excise laws, sustains not the slightest inconvenience from the general rule, for he can immedi- ately produce his license; whereas, if the case is taken the other way, the informer is put to considerable inconvenience. Discussions may arise before the magistrates, whether the evidence produced is proper to sustain the negative; whether a book should be produced, or an ex- emined copy, and many other questions of that sort, whereas none can arise when the defendant himself produces his license. This, therefore, not being one of the excepted cases, but a case falling directly within the general rule, I am of opinion that judgment must be given for the crown."(y)-}- In Willis's case it is said to have been agreed that, although an in- dictment states that the prisoner, " then or at any time before not being a contractor with or authorized by the principal officers or commission- ers of our said lord the king, of the navy, ordnance, &c., for the use of our said lord the king, to make any stores of war, &c.," yet, that it is not incumbent on the prosecutors to prove this negative averment, but that the defendant must show, if the truth be so, that he is within the exception in the statute. (A-) Upon the same principal a very late case, the Apothecaries' Company* V. Bentley,(a) was decided. That was an action for a penalty on the 55 Geo. 3, c. 194, for practising as an apothecary without having ob- i>. Bentley. tained the certificate required by that act. All the counts in the decla- ration contained the allegation that the defendant did act and practice as an apothecary, &c., ivUhuut luiviny obtalntd such certificate as hi/ the said act is directed. No evidence was off"ered by the plaintiffs to show that the defendant had not obtained his certificate. The plaintiffs hav- ing closed their case, the counsel for the defendant submitted that there must be a nonsuit. But Abbott, C. J , said, " I am of opinion that the affirmative must be proved by the defendant. I think that it being a negative, the plaintiffs are not bound to prove it ; but that it rests with the defendant to establish his havinj; a certificate." Willis's case. *772 Apothe- caries' Company (.;■) So in Rex v. Smith, 3 Burr. 1475, which was a conviction for trading as a hawker and pedlar without a license, it was held that the onus of proving the license lay on the de- fendant. (k) 1 Hawk. P. C. c. 89, s. 17, by the editor, ante, p. 268. (a) Ry. & Mood.* N. P. C. 1 59. S. C. 1 C. & P. 538. •f [On an indictment for selling liquor without license, it is not necessary on the part of the State to prove that the accused had no license. If he would avail himself of that defence it is incumbent on him to prove that he was licensed. State v. Crowell, 25 Maine, 171 ; Shearer v. The State, 7 Blackford, 90.] * Eng. Com. Law Reps. xi. 462. CHAP. II. § II.] EVIDENCE CONFINED TO POINT IN ItfSUE. 77- SECT. II. Evidence Confined to the Point in Issue. No evidence cuu bo aduiittod wliich docs not tend to prove or disprove Kvi'loncf the issue joined. In criminal proceedings the necessity is stronger, if ,i",^., I I,, possible, tli;in in civil, of strictly enfantitig the rule, tlnit the evidence ii"i"t in is to be conlined to the point in issue; for where a prisoner is charged """"' with an offence, it is of the utmost importanc; to him, that the facts hiid before the jury should consist exclusively of the transaction which forms the subject of the indictment, which alone he can be expected to come prepared to answer. It is, therefore, a general rule, that the facts proved Rvidpnoo must be strictly relevant to the particular charge; and have no reference "'"''/ "PP't , o ' to til O to any conduct of the prisoner unconnected with such charge. Tiiere-»i„f;io' fore, it is not allowable to show, on the trial of an indictment, that the "■""■""•'f''^'* pri.soner has a general disposition to commit the same kind of offence as*" "^'^^ that for which he stands indicted. Thus, in a prosecution for an infa- mous crime, an admission by the prisoner, that he had committed such an offence at another time, and with another person, and that he has a tendency to such practices, ought not to be received in evidence. (6)'|' Where upon an indictment for a burglary and stealing goods, the pro- secutor failed to prove any nocturnal breaking, or any larceny, sub.sc- quent to the time when the prisoners entered the house, which must have been after three o'clock in the afternoon of the day on which the offence was charged to have been committed, it was proposed to abandon the charge of burglary, and to give evidence of a larceny by the prisoners, of some of the articles mentioned in the indictment, though committeil before three o'clock on the day ou which they were charged to have en- tered the house; but the court refused *to receive the evidence, on the *773 ground, that it was a distinct transaction. (c) The prisoners were, there- Acta of fore, acquitted on this chartre ; but were afterwards indicted acain for '','^'*"'^*'l - the Other offence, ami convicted. In treason, no overt act amounting to indictmeut a distinct and independent charge, thoutrh fallin-i; under the s.ime head "'""^ *""* ... ' . . uu proved. of treason, shall be given in evidence, unless it be expressly laid in the inilictmcnt ;(r?) but still, if it conduce to ihc proof of any of the overt acts whi(;h are laid, it may be admitted as evidence of such overt acts.('') With this view the declaration of the prisoner and seditious hinguage used by him are clearly admissible in evidence, as explaining his con- duct and showing the nature and object of the conspiracy. (/"] So, though it is not allowable in general, to incjuire into any other 'WIhtp stealing of goods, besides that speciticd in the indictment, yet, for the ''^''''?"-^ °^ P •• 1-1 • ci •■ „. fjouds not purpose or ascertaining the identity or the person, it is often important laid in iu- {b) Rex V. Cole, Mich. T. 1810, hy all tlie judges, MS. 1 Pliill. Ev. 477. \n an action against the acceptor of ii bill of e.xciiange, wliere the liefente was tiiat the aixei)tani-i' was furgtii, evidence that the party who negotiated the l)ill had heen guilty of otiier furgerics. was held itiadinissihle. Viney v. Harss, 1 Esp. 202. Sec also Haloelti v. Serani, Penke, N. P. C. 142. Graft V. Bertie, I'eake's Kv. 1 04. ('•) Rex V. Vanderconib and Abbott, 2 Leach, T08. Ante, vol. 1, p. 8:^0. (d) Post. 245. (f) Ibid. (/) 1 Phill. Ev. 471, citing Rex r. Watson, 2 Stark. R. 134. f [In a prosecution for perjury, proof of the general bad character of the defendant for truth and veracity would be inadmissible. Dcwit v. Greenjidd, 5 Ohio, 227. See Common- wealth V. Hojykins, 2 Dana, 418.] 773 OP EVIDENCE. [book VI. dictment to show that other goods, which had been upon an adjoining part of the proved" prcuiises, were stolen in the same night, and afterwards found in the prisoner's possession. This is strong evidence of the i)risoncr having been near the prosecutor's house on the night of the robbery ; and in that point of view it is material. (r/) Thus also, on an indictment for the crime of arson, it may be shown, that property, which had been taken out of the house at the time of the firing, was afterwards found secreted in the possession of the prisoner. (/i) Acts of Where several are proved to have been engaged in the same design, other per- the acts and declarations of one in furtherance of that design may be "a°edTu received in evidence against another, though not presentj^i) and it seems (he same to make no difference as to the admissibility of the act or declaration of !f'r'fov°'d^ a conspirator against a defendant, whether the former be indicted or whetlior ' not, or tried or not, with the latter; for the making one a co-defendant they are m-(io(;g j3Qt jj|g]-g jjjg j^^^j-g qj, declarations evidence ac;ainst another, any ihers, Russ. & Ry. 305. Rex v. Gogerly and others, ibid., 3-13. Rex c. Bingley and others, ibid., 446 (y) 2 Stark. Ev. 329. AiUe, t[>. 100. ' (/.) Ibid. (l) Rex V. Stansfield, 1 Lew. 118, Littledale, J. (m) Young v. The ICing, 3 T. R. 106, by Buller, J. Rex v. Jones, 3 Campb. 132. Rex v. Kingston, 8 East, 41. But this rule does not extend to misdemeanors. Rex v. Finacane,'' 5 0. k P. 551. (n) Rex V. Dunn, R. & M. C. C. R. 146. (o) Ibid. f [The acts or declarations of a supposed agent or joint conspirator, cannot be received ill evidence until proof has been first given to establish the agency or combination. The People V. Parish, 4 Denio, 153.] X [Upon an information for adulter}-, charging but one offence and that in a single county * Eng. Com. Law Reps, xxxii. 608. '' II). xxiv. 452. CHAP. II. § II.] EVIDENCE CONFINED TO POINT IN ISSUE. 774 GLncrallv spcakint!:, it is uot cumpctcut to a prosecutor to iirove a iiiau rruvin-,' . . . one ft'lonv guilty of ouo fclouy by proving Lim guilty of another uueoniiLCteiJ i^^ showiiig felouy ;"j" but where several felonies arc counecteJ together, and fdrni prisoner part of one entire trausactiou, then the one is evidence to show the ^'J]|jii|gr eharaoter of the other.(^^) On an indictment for stealing six shillings, the Muuy. followinir facts were proved : — The prisoner was a shopman in the em- J^'"'"^" "^'* ploy of the prosecutrix, and his honesty being suspected, on a particular are cou- day the sou of the prosecutrix put seven shillings, one half-cmwn, and """''"'l- one six-pence, marked in a particular manner, into a till in the shup, in jinis. ' which there was no other silver at that time, and the prisoner was watched by the prosecutrix's son, who from time to time went in and out of the shop, occasionally looking into and examining the till, while customers came into the shop and purchased goods. Upon the first examination of the till it contained lis. Gd.; after that, the son of the jjrosccutrix received one shilling from a customer and put it into the till ; afterwards another person paid one shilling to the prisoner, who was observed to go with it to the till, to put his hand in, and withdraw it clenched. He then left the counter, and was seen to raise his hand elinehed to his waistcoat pocket. The till was examined by the wit- ness, and lis. G(/. were found in it instead of 13s. Grf., which ought to have been there, 'ihc prosecutrix was proceeding to prove other acts of the prisoner, in going to the till and taking money, when Wilde, Serjt., objected that evidence of one felony had already been given, and that the prosecutrix ought not to be allowed to prove several felonies. The learned judge overruled the objection, and the son of the prosecu- trix proved that, upon each of several inspections of the till after the prisoner had opened it, he found a smaller sum than ought to have been there. The prisoner having been found guilty, application was made to the Court of K. B. for a rule for staying the judgment, on the ground that the prosecutor ought to have been confined in proof to one felony ; but the court was of opinion that it was in the discretion of the judge to confine the prosecutor to the proof of one felony, or to allow him to give evidence of other acts, which were all part of one entire trans- action. (5) So where on an indictment for stealing pork, a bowl, some knives, and nirdjcye's a loaf of bread, it appeared that the prisoner entered a shop, and ran''"''®' away with the pork, and returned in about two minutes, replaced the *pork in a bowl, which contained the knives, and took away the whole *77o together; in about lialf-an-hour after he came back to the shop, and took ip) Per Baylcy, J. Rex v. Ellis,* G B. & C. 145. {7) Rex I). VAWa, supra. The indictment had been removed into that court by cerlioran from the City Court of Exeter. the imblic proscrutor, having given evidence of one act of adultery, will be confined to that net and nt)l {icrniiltcd to introduce proof of other acts committed with the same person at dilfcrent times and places. Tke Stale v. lia/r.t, 10 Conn. 372. On an indictment for adultery evidence of improper familiarities between the j arties accused, a short time previous to the act charged, is admissible in corroboration of other evidence. State v. Wallace, N. Hamp. 515.] f jOn the trial of an indictment for larceny of a watch, evidence of another larceny of a clock by the prisoner, at another time, is inadmissible for any purpose. 1 Leigh, 5<4. Walker >'. The Commonwealth. j [Evidence of a distinct substantive offence shall not be admitted in sui)]»ort of another olTence; uforliari, shall not evidence of an intention to commit another olTeucc be received. Kinchelow v. The State, 5 Humphreys, 9.] » Eng. Com. Law. Reps. xiii. 123. 775 OF EVIDENCE. [BOOK VT. away the loaf of bread. Littledale, J., said, <' This taking away the loaf caunot be given in evidence upon this iudictnient. I think that the pri- soner's taking the pork and returning in two minutes, and then running oflf with the bowl, must be taken to be one continuing transaction : but I think that half-an-hour is too long a period to admit of that construc- tion. The taking of the loaf therefore is a distinct offence. "(r) Casus cited I" the case of Rex v. Wylie,(.s•^ Lord Ellenborough said, he rcmem- iii Ri)x V. bered a case where a man committed three burglaries in one night : he ^ '^' took a shirt at one place, and left it at another; and they were all so connected that the court went through the history of the three different burglaries. Several So where three burglaries were committed in the town of Uttoxeter, burglaries q^^ .^j. Keelinu:'s and another at Bladou's, between twelve and three in the same , , , „ , ° . , , -r.i i , . p i i • i night. clock ot the same night, and at Jiladon s a crow-bar was round, which fitted some marks on a chest broken open at Reeling's, and which was proved to have been in the possession of the prisoners previously to the night in question; Wightraan, J., on the authority of the preceding case, allowed evidence to be given of the finding of the crow-bar at Bladon'g, and also of the finding goods stolen the same night from Bladon's in the possession of the prisoners, as such evidence tended to show that the prisoners had been at Bladon's, and that they might have left the crow- Where bar there. (/) felonies are Where several felonies are all parts of the same transaction, evidence all parts of of all is admissible upon the trial of an indictment for any of them, the same ^fjjy^ upon an indictment against two prisoners, charging each in differ- transae- f ... . . ? tion, evi- ent coutits as principles in the first degree in committing a rape, and dence of all g^j^^ ^^ principles in the second degree in other counts, evidence has been bleupou held admissible that the prisoners, together with three other men, com- the trial of rnitted at the same place and time, the one after the other successivel3i, ment for rapes upon the body of the prosecutrix, the others aiding and abetting any of {q turn. (if) So where there were three indictments against the prisoner for setting fire to three ricks belonging to three different persons, and it appeared that the ricks, which were in sight of each other, were set on fire one immediately after the other, but the strongest evidence being as to the last, that indictment was tried first; the confession of the prisoner relating to all the three ricks, and the evidence of an accomplice to all, wis admitted, as the whole constituted part of the same transac- tion. («) And where an indictment for arson contained five «ounts for setting fire to five different houses, which were all in one row, and the fire from the one first on fire had communicated to the others, it was *776 held that, as it was all one transaction, the evidence as *to all the houses was admissible. (w) So where upon an indicment against the prisoners for robbing Woodward, there being another indictment against them for (r) Rex V. Birdseye,^ C. & P. .386. h) 1 New Rep. 94, S. C. 2 Leach, 983. Ante, p. 404. (if) Reg. V. Stonyer and others, Stafford Sum. Ass. 1843. MSS. C. S. G. (u) Rex V. Folkes, R. & M. C. C. R. 354. And the same was held in Rex v. Lea,'' 2 Moo. C. C. R. 9. 7 C & P. 836. Tliree several rapes committed in one boat were given in evidence; but other rapes committed in another boat, to which the prosecutrix was carried from the first boat, was not offered in evidence, as they were the subject of another indictmeut. C. S. G. (v) Rex V. Long,<= 6 C. & P. 1 79, Gurney, B. (w) Reg. i>. Tnieman,-' 8 C. & P. 727. Erskine. J., refused to put the prosecutor to elect, as to which count he would proceed. * Eng. Com. Law. Reps. xix. 433. ^ lb. xsiii. 761. <= lb. xxv. 43. ^ lb. xxxir. 605. CHAP. II. § II.] EVIDNCB CONFINED TO POINT IN ISSUE. 776 robbing Urwick of a watch, it appourod tbut Woodward and Urwick were travelling in a gig, when thuy were stopped and rubbed ; Little- dale, J., held, that evidence might be given that Erwiek lo,>-t his watch at the same time and place that Woodward was robbed, but that evi- dence was not admissible of the violence that was oflfered to Urwick. One question in the case was, whether the prisoners were at the place in question when Woodward was robbed; and as proof that they were so, evidence was admissible that one of them had got SDiiiethiug which was lost there at that time.(j") IJut where upon an indictment for rob- bing George and Henry Pritchard, it appeared that the prisoners at- tacked and robbed George and Henry Pritchard when they were walk- ing together, Tindal, C. J., held that the prosecutor was not bound to elect as to which robbery he would proceed. It was all one act, and one entire transactitmj the two prosecutors were assaulted and robbed at one and the same time, and there was no interval of time between the assaulting and robbing of the one and the assaulting and the rob- bing of the other. If there had been, the felonies would have been distinct, but that was not so in the present case.(,y) So where the pri- soner was indicted uni>>tor of ral cases that there being another indictment pending makes do uer as tionablc whether the shooting was by accident or design, proof may be j^V'^'^'.^° " given that the prisoner at another time intentionally shot at the same intoiit. person. (/) So where upon an indictment for robbery it appeared that the prisoners went with a mob to the prosecutor's house, and one of the mob went up to him, and very civilly, and, as the prosecutor then be- lieved, with a good intention, advised him to give them something to get rid of them, and prevent mischief, upon which the prosecutor gave them the money laid in the indictment; it was held that for the pur- pose of showing that this *was not bond fide advice, but, in reality, a *778 mere mode of robbing the prosecutor, evidence was admissible of other demands of money made by the same mob at other houi^cs, before and after the particular transaction at the prosecutor's house, but in the course of the same day, aud when any of the prisoners were present.(y) So upon an indictment for administering sulphuric acid to horses with intent to kill them, it has been held that the prosecutor is not confined to the proof of a single act of administering, but that other acts of ad- ministering may be given in evidence to show whether it was done with the intent charged in the indictment, (/c) So where upon an indictment for robbing the prosecutor of his coat, the robbery having been com- mitted by the prisoner's threatening to charge the prosecutor with an unnatural crime, Holroyd, J., received evidence of a second ineffectual attempt to obtain a 1/. note the following evening Vjy similar threats, and upon a case reserved the judges were of opinion that the evidence was admissible to show that the prisoner was guilty of the former trans- action. (A On a prosecution for a libel, the publication of other libels, by the defendant, not laid in the indictment, may be given in evidence, to show quo animo the defendant published that in question. (?/t) On the trial of an indictment for murder, former grudges and antecedent menaces are admitted to be given in evidence as proof of the prisoner's malice against the deceased. (m) And it has been considered, in a case where three persons were charged with uttering a forged note, that otiier acts done by all of them jointly, or any of them separately, shortly before the offence, may be given in evidence to show the confederacy and common purpose, although such acts constitute distinct felonies. (o) On an indictment for sending a threatening letter, prior and subseiiuent letters, from the prisoner to the party threatened, may be given in evi- (t) Rex V. Yoke, Russ. & R. 531. (y ) Rex V. Winkvvortli,* 4 C. & P. 444, Parke, J. Alderson, J., iind Vaughau, B., aud Lord Teaterdeii, C. J., afterwards concurred in opinion. {k) Rex V. Mo-g,>' 4 C. & P. 3G4, Park, J. A. J. ij,) Rex V. Egcrton, Russ. & Ry. 375, S. C. mentioned by Ilolroyd, J., in Rex v. Ellia, anU, p. 774, note (7). (to) Anic, vol. 1, p. 2(11. Stuart j). Lovell,': 2 Stark. N. P. C. 95. So subsequent letters relating to the same sul)juct, although lihellous tluMnsclvcs, are admissible in an action for a libel, and although such libel needs no explanation. Pearson v. Lemaitre, in ('. P., -May 11, 1843. (71) 1 Phill. Ev. 476. So the declarations of the prisoner, and the seditious language used by him, arc clearly admissible in evidence on an indictment for high treason, explain- ing his conduct, and showing the nature and object of the conspiracy. Rex v. Watson, ^ 2 Stark. N. P. C. 134. 1 Phil. Ev. 471. (oj Rex V. Tattersall, MS. Bayley, J. Ante, vol. 1, p. 27. « Eng. Com. Law Reps. xix. 4G5. »> lb. xix. 420. ' lb. iii. 201. '' lb. iii. 27.'^. 778 OF EVIDENCE. [bOOK VI. denco, as explanatory of the meaning and intent of the particular letter on which the indictment is framed. ( /j)!" Evidcneo Evidence of the murder of one person may be given upon the trial derto sliKw^^^ the murder of another person, if such evidence tends to show that the iiiiiiivo the prisoner might have had a motive arising out of the other murder tUi^'ano"'^*^'^ committing the murder with which he is charged. Upon an indict- ther. ment for the murder of one Ilemmings, it was opened that great enmity subsisted between Parker, the rector of a parish, and his parishioners, and that the prisoner had used expressions of enmity against the rector, and had said he would give 50A to have him shot, and that the rector was shot by Hemmings, and that the persons, who had employed him, fearing they should be discovered as having hired him to murder the *779 rector, had themselves *murdered Hemmings ; and that Hemmings' bones had been found in a barn occupied by the prisoner at the time of the murders. After evidence had been given of declarations of the pri- soner, showing that he entertained malice against the rector, it was pro- posed to show that Hemmings was the person by whom the rector was murdered , it was objected that this was not admissible, as the rec- tor's death was not the subject of the present inquiry. Littledale, J., " I think that I must receive the evidence. On the part of the prose- cution it is put thus, — that the prisoner and others employed Hem- mings to mui'der Mr. Parker, and that he being detected, the prisoner and others then murdered Hemmings, to prevent a discovery of their own guilt; now to ascertain whether or not that was so in point of fact, it is necessary that I should receive evidence respecting the murder of Mr. Parker."(j) Of other So evidence may be given of other wounds inflicted by the prisoner wounds. Qj^ other persons at the same time and place for the purpose of identi- (p) Robinson's case, 2 Leach, 749. 2 East, P. C. c. 23, s. 2, p. 1110. Ante, p. 724. [q) Rex V. Clewes,* 4 C. & P. 121. j- [On the trial of an indictment for having in possession a counterfeit bank bill with intent to pass it as true, knowing it to be counterfeit, evidence that the defendant had passed other counterfeit bills, is admissible to show his knowledge that the bill mentioned in the indictment was counterfeit ; but his conversation respecting a bill which he had passed, if made after he passed it, is not admissible to prove the fact that such bill was counterfeit, without the production of the bill itself, or proof that it is destroyed or is in the possession or control of the defendant. Commomcealfk v. Bic/elow, 8 Metcalf, 235. On the trial of a person charged with passing counterfeit bank notes, it is competent to prove he has passed other counterfeit paper without producing such paper, if it be out of the jurisdiction of the court. Heed v. The State, 15 Ohio, 217. On the trial of an indictment for uttering and publishing as true a forged bank bill, to prove the scienter it it admissible to show th;it the prisoner had passed other forged bills for which indictments were pending against him. State v. Williams, 2 Richardson, 418. Com- montvealth v. Steam, 10 Metcalf, 256. Wliere there is a question of intent or of guilty knowledge, proof of other acts of a simi- lar nature with those constituting the principal charge, with a view to establish such intent or knowledge, are sometimes, admissible. The People v. Ilopson, 1 Denio, 574. On the trial of an indictment containing a single count for an offence of assault and bat- tery, and resisting an officer in the execution of process, the prosecution, after proving an assault and one act of resistance cannot give evidence of a similar offence committed at another time. The People v. Ilopson, 1 Denio, 574. On an indictment for an assault with intent to commit a rape, evidence of previous assaults on the prosecutrix are admissible to show the intent with which the assault in question was committed. Williams v. The State, 8 Humphreys, 585. "When an indictment alleges that a party attempted to set fire to a dwelling-house, with intent to burn it by attempting to set fire to another building, the jury are authorized to infer the alleged intent from the evidence respecting the attempt to set fire to the other building. Commomeealth v. Harney, 10 Metcalf, 422.] » Eng. Com. Law Reps. xix. 354. CHAP. 11. § II,] EVIDENCE CONFINED TO POINT IN ISSUE. 779 fying the iugtrumeut used. On an indictment for maliciously stabbing, it appeared that tbe prisoner stabbed both the prosecutor and Redman at the same time and place, and it was held that evidence might be given of the shape of the wound inflicted upon llcdmun for the purpose of idiutifying the instrument with which the wound was inflicted on the prosecutor. (r) If a prisoner call evidence to prove an alibi, evidence may be given To rcVmt in reply, for the purpose of rebutting the alibi, that the prisoner com-"" '*''^'- mitted another robbery near the place where the ofl"('nce charged was committed. Ou an indictment for robbery the defence was an alibi, and iu order to show that the prisoner was near the place of the rob- bery at the time it was committed ; Alderson, B., held that a witness might be examined to show not merely that he had been accosted by the prisoner on the road shortly before the prosecutor was robbed, but that he had also been in fact robbed by the party who accosted him.(.s') As other acts and declarations of the prisoner, besides those charged Proof of in the iudictment, maybe given in evidence on the part of the pi'Jsecu- j^j^'j^^^jj^, tion, so he himself in his defence may in some cases prove other acts rations of and declarations of his own, as evidence of his innocence. Thus, on a l""'.''""*^'" ** 1 -11 1 1-11 evidence charge ot murder, expressions of goodwill and acts of kindness, on the for him of iiart of the prisoner towards the deceased, are always considered im- ''"^ '""''" . . . . ccnce. portant evidence, as showing what was his general disposition towards the deceased, from which the jury may be led to conclude that his iuteution could not have been what the charge imputes. (/) So iu the case of Ilex v. Lambert and Perry, (h) where the supposed libel, which was the .subject of prosecution, was contained in a paragraph of a news- paper, of which the defendants were the printer and proprietor, it was held by Lord EUenborough, that the defendants had a right to have read in evidence any other paragraph in the same newspaper, connected with the subject of the passage charged as libellous, (although disjointed from it by extraneous matter, and printed in a dificrent 'character,) for *780 the purpose of showing the intention and mind of the defendants with respect to the specific paragraph laid in the indictment. And as, in trials for conspiracies, wliatever the prisoner may have done or said, at any meeting alleged to be held in pursuance of the conspiracy, is admissible in evidence against him, on the part of the prosecution ; so, on the other hand, any other part of his conduct at the same meetings will be allowed to be proved, on his bt'half ; for the intention and design of the party, at a particular time, are best explained by a complete view of every part of his conduct at that time, and not merely froyi the proof of a single and insulated act of declaration. (i;) In the case of Walker AValkcr'i and others, who were tried for a conspiracy to overthrow the govern-*^"®' uuMit, and evidence was produced, on the part of the prosecution, to show that the conspiracy existed, and was brought into overt act at meetings in the presence of Walker, the counsel for the prisoners was (r) Rex V. Fursoy,» G G. & P. 81, Parke J., and Gaselce, J. («) Reg. V. Briggs, 2 M. & Rob. 109. (/) 1 Pliill. Ev. 4V0. (u) 2 Campb. 400, and see Thornton c Stephen, 2 M. & Rob. 45. The same was done in Xewton v. Howe, Gloucester ypr. A.s.-;. 1843, ror. Kr, 3 B. & A. 5G6, 577. 1 Phill. Ev. 476. See also Bedford v. Barley," 3 Stark. N. P. G. 87, 88, 91. (d) Ibid. (e) Re.Ki>. nunt,<= 3 B. & A. 5GG, 577. 1 Phill. Ev. 477. See also Redford v. Burleyj-ia Stark. N. P. C. 87, 88, 91. (/) 2 Stark. N. P. C. 137.' Lord Ellenborough, in giving his opinion on this point, cited from recollection, where a butler to a banker at Slalton, had been taken up upon suspicion of having committed a great robbery; the prisoner had been seen near the privy, and this »Eng. Com. Law Reps. v. 377. " lb. xiv. 106. « lb. v. 377. ' lb. xiv. 166. • lb. iii. 273. Vol. il— 51 782 OF EVIDENCE. [BOOK VI. found after sion, it appears to have been laid down in Hardy's case,(^) that papers ai)nr"hen- fo"'^'! "^ ^^^^ possession of coDspirators with the prisoner, but subse- sion. quently to his apprehension, ought not to be read against him, unless there was evidence to show their previous existence; for otherwise there was no evidence that the prisoner was a party to it. And on a prose- cution against Hevey, Beatty, and M'Carty, for a conspiracy, it was held that some letters which were directed to the prisoners, and inter- cepted at the post-office after their apprehension, were not admissible in evidence against them, as they had never been in the custody of the prisoners, or in any way adopted by them.(7«) So on an indictment for uttering a forged bank note, knowing it to be forged, it was held that a letter purporting to come from the prisoner's brother, and left by the postman pursuant to its direction at the prisoner's lodgings, after he was apprehended, and during his confinement, but never actually in his custody, could not be read in evidence as proof of his knowledge that the note was forged. (t) But in Watson's case,(y) it was held that papers found in the lodgings of a conspirator at a period subsequent to the apprehension of the prisoner, might be read in evidence, although no absolute proof was given of their previous existence, where strong presumption existed that the lodgings had not been entered by any one in the interval between the apprehension and the finding, and where the papers were intimately connected with the objects of the conspiracy as *783 detailed in evidence. (Z;) Writings found in the *prisoner's possession, Writings but not published, if plainly connected with the treasonable design found in diargod, are evidence of such design upon an indictment for treason, prisoner s o ' _ e r ^ 7 possession, though not published. (?) But it seems, that if it be doubtful whether though notjjjgy jjj-g gQ connected, they are not admissible. (m) In Watson's case, may be ' One of the objections made to the admission of a paper found in the read, if bouse of a co-conspirator was, that there was no proof that it had been the charr'-e published ; and Sidney's case was cited ; but the court distinguished in the in- that case from the present, and Abbott, J., said that he had always ic men . ^^^gj.gj^QQ^ tjjg ground of objection in Sidney's case was, not that the papers had never been published, but that they had no relation to the treasonable practices charged in the indictment, and he referred to 1 East's P. C. 119, where it said, "writings plainly applicable to some treasonable design in contemplation, are clear and satisfactory evidence of such design, although not published." If, say Mr. J. Foster and Mr. J. Blackstone, " the papers found in Sidney's closet had been plainly rela- circumstance having excited suspicion in the minds of the counsel, who considered the case during the assizes at York, at their instance search was made, and in the privy all the plate was found. The plate was produced, and the prisoner was, in consequence, convicted ; he had been separated from the custody of the plate, since he had been confined in York Oastle, for some time ; but no doubt was entertained as to the admissibility of the evidence. Ab- bott, C. J., also observed, that an assize had scarcely ever occurred, where it did not happen that part of the evidence against a prisoner consisted of proof that the stolen property was found in his house after his apprehension. See Eeg. v. Courvoisier,* 9 C. & P. 362. (ff) 24 How. St. Tr. 452. (h) Hevey, Beatty, and M'Carty's case, 1 Leach, 235. h) Huet's case, 2 Leach, 820. (,/) 2 Stark. N. P. C. 140." (k) A letter found upon the prisoner may be read, but it is no evidence of the facts it states. Thus, on an indictment against a person employed in the post-office for secreting a letter containing a bill of exchange, the contents of the letter, which was found upon him, were held inadmissible to prove that the bill was enclosed it. Rex v. Plumer, Puss. & Ky. 264. (1) Rex V. Watson,"^ 2 Stark. N. P. C. 141. (m) Ibid. * Eng. Com. Law Reps, xxxviii. 155. *> lb. ill. 273. "^ lb. iii. 213 CHAP. II. § II,] EVIDENCE CONFINED TO POINT IN ISSUE. 783 tive to the other treasonable practices charged in the indictment, they might have been read in evidence against him." That was the objection which had constantly been made to the reception of the evidence in Sidney's case. The paper there was not only an unpublished paper, but appeared to have been composed several years before the crime charged to have been committed. (?i) If the papers found in the prisoner's custody be plainly relative to ■\Vithout the design charged, they may be read in evidence without any proof of l""""^ ^^ xi 1 1 • • 1 • ;i X p ^1 • / X bcinffin the handwriting being that ot the prisoner. (o) prisoner's On an indictment against a county for not repairing a public bridge, liandwrit- the defendants may show under the general issue that the bridge had '""' been repaired from time to time by private individuals : for one ques- dicimont" tion is, whether the bridge is a public bridge; and upon that question it against a is material to inquire by whom and in what manner it had been re- no't'rij'la^f . paired, with a view of ascertaining whether those repairs were adapted ing a to the service of the public, or merely to the purposes of ornament or V^'^*^"^'" , T • T n c denco may private convenience. (^?) It is one medium of proof to show that the be ^iven bridge has been repaired by individuals, though that one alone would ^'"'^ '°*^'" e ot very little weight.(^) rupairod it. In a question put by the House of Lords to the judges, in the course Whether a of the proceedings in the Queen's case, it was assumed, that proof of the l"''soner . , niuyinhis existence of a conspiracy between the prosecutor and others to suborn dui'euco witnesses against the accused, is a legitimate ground of defence. Lords'^" t-^'- Chief Justice Abbott, in delivering their opinion, observed, that the j^^^gQ^ppj^jj. judges understood that such an assumption had been made in the ques-cy to sul- tiou put to them, and that the House did not ask their opinion on that"^" "' " point ;(/•) from which it may perhaps be inferred, that their lordships agaiust had doubts whether such a defence is allowable. ^'""• In civil suits, as the evidence is to be conflncd to the points in issue, the character of either party cannot be inquired into, unless *itis put in *784 issue by the nature of the suit itself.(s) In criminal proceedings, the Kvideuce prosecutor being usually also a witness, his character ma}- be attacked ^^.^ in the prisoner's defence, in the same way as is applicable to the im- Character peachment of the credit of witnesses generally. In the particular^ t'^r"^^" instance of an indictment for a rape, or for an assault with an intent to commit a rape, evidence is admissible on the part of the prisoner, not merely, as in the case of an ordinary witness, that from her general bad character the prosecutrix ought not to be believed on her oath, but her character as to general chastity may be impeached by general evidence. (<)f And although evidence of particular facts to impeach her chastity was once held inadmissible, (w) Yet it has since been held that the prosecutrix may be cross-examined as to particular discredita- ble transactions ;(y) and as to her having had connexion with the pri- (n) 2 Stark. N. P. C. 14T.» (o) 1 East, P. C. c. 11, s. 5G, p. 119. (;)) Rex ?'. (Inhabs.) Northamptonshire, 2 M. & S. 262. }q) 1 Phill. Kv. 170, 7th eil. (r) TIic Queen's case," 2 Brod. & Bhig. 910, 311. (.s) 1 Phill. Hv. 176, 7th edit. 467. \l) Ante, vol. 1, p. 600. (n) Rex V. Hodgson, Russ. & Rj. C. C. 211. Antr, vol. 1, 690. (v) Rex V. Barker,": 3 C. . Watkins," 1 C. & P. 308, Griunell v. Wells, Gloucester Sp. Ass. 1843, Erskine, J., MS. C. S. G. And see Andrews v. Askey,"^ 8 C. & P. 1, ante, vol. 1, p. 691. (z) Formerly evidence of the prisoner's good character was admitted in capital cases only, in favorem vitce. Rei v. Harris, 2 St. Tr. 1038. The evidence is now admitted in all prosecu- tions which subject a man to corporal punishment ; but not in actions or informations for penalties, though founded on the fraudulent conduct of the parties. Peake's Ev. 7. The true line of distinction, C. B. Eyre observed, is this : in a direct prosecution for a crime such evi- dence is admissible ; but Avhere the prosecution is not directly for the crime, but for the penalty, it is not. Attorney General v. Bowman, cited 2 Bos. & Pul. 582. (a) 1 Phill. Ev. 469. {See 2 Overton, 94. Wallace v. Clark.} (b) Ibid. (c) Rex V. llodgkiss,'! 7 C. & P. 398, Alderson, B. It sometimes, however, is proper to ascertain from the witnesses whether they have had sufficient opportunities of knowing the f [If on the trial of an indictment, the defendant introduces evidence of his good character prior to the alleged commission of the crime charged, it is competent to the government to prove that subsequently to that time his character had been bad. Commonwealth v. Sachet, 22 Pick. 394. Good character is available only in doubtful cases. Bennett v. The State, 8 Humphreys, 118. In criminal cases the prisoner's character cannot be put in issue by the State unless he open the door by giving testimony to it. But it is not a conclusion of law, that from his silence the jury are to believe he is a man of bad character. State v. O'Neil, 7 Iredell, R. C. 251. Where no evidence of general character has been given, the subject of character is not one for the consideration of the jury. Therefore, when on the trial of an " indictment for murder, the evidence was circumstantial, and the judge instructed the jury that fair character was important to the prisoner, and that they were to inquire why it was that she had given no evidence of her general character." Held, tliat such instruction suggested the inference that her character was bad, and was erroneous. The People v. BorJine, 1 Davis, 281. On a trial for murder, evidence of the character of the deceased as a violent man is not admissible for the defendant. State v. Ilawley, 4 Harrington, 562.] * Eng. Com. Law Reps. xxv. 544. ^ lb. xxxii. 520. ^ lb. xxxiv. 270. <' lb. xxxii. 515. CHAP. II. § II.] EVIDENCE CONFINED TO POINT IN ISSUE. 785 Soon uflcr llic passing of the 6 & 7 Wni. 4, c. 114, the allowing per- sons indicted for felony to make their defence by counsel or attorney, the judges promulgated, amongst others, the following rule of practice in cases of felony ; that, " if the only evidence called on the part of the prisoner, is evidence to character, although the counsel for the prose- cution is entitled to the reply, it will be matter for his discretion whe- ther he will use it or not. Cases may occur in which it may be 6t and proper so to do."(fZ) And it has been held since in a case of felony that the counsel for the prosecution bus in strictness the right to reply, (c) on the whole case and not merely on the evidence to character,(/) although the counsel for. the prisoner only calls witnesses to character; but this is not a right which in practice ought to be exercised, except under very special circumstances. (y) The practice in cases of misdemeanor has uniformly been that when witnesses have been called, on the part of the accused, to character only, and for no other purpose, the counsel for the prosecution has not ad- dressed the jury in reply, (/') but it seems that in strictness the right exists in cases of misdemeanor, though it ought rarely, if ever, to be exercised. (/) The G & 7 "Wra. 4, c. Ill, expressly provides that "if upon the trial 6 & 7 Wm. of any person for any subsequent felony, such person shall give evidence ^' c m, of his or her good character, it shall be lawful for the prosecutor in an- conviction, swer thereto, to give evidence of the indictment and conviction of such person for the previous felony before the verdict of guilty of such sub- sequent felony shall have been returned, and the jury shall inquire con- cerning such previous conviction for felony at the same time that they inquire concerning the subsequent felony." If a prisoner cross-examines the witnesses for the prosecution as to his character, he " gives evi- dence" within the moaning of this section, and the previous conviction may be proved. (u) It has been usual to treat the good character of the party accused asMothodof evidence to be taken into consideration only in doubtful cases. Juries ''""j'^S , •' evidence ol have generally been told that w^herc the facts proved arc such as to prisoner's satisfy their minds of the ffuilt of the party, character however excellent '^'i"'"'**'*.^'' •',..,. *=. , . r I 1 1 , • to the jury. is no subject for their consideration ; but that when they entertain any doubt as to the guilt of the party, they may properly turn their atten- tion to the good character which he has received. If is, however, sub- mitted with deference that the good character of the party accused, satisfactorily established by competent witnesses, is an ingredient which ought always to be submitted to the consideration of the jury, together ■with the other facts and circumstances of the *case. The nature of the *780 charge, and the evidence by which it is supported, will often render such ingredient of little or no avail; but the more correct course seems to be, not, in any case, to withdraw it from consideration, but to leave prisoner's character ; as whether they have lived near him or known him, down to the time of the commission of tlie offence. C. S. G. (d) Rules of Practice in cases of felony, promulgated by the judges before the Spring Cir- cuit of 1837. 7 C. & P. 676," post, p. 815. (e) Rex V. Sta^nard^ 7 C. & P. 67.3, Patteson, J., and William.^, J. (/) Rex V. Whiting,^ 7 C. & P. 771, Bolland. B. {;/) Rex v. Stannard, supra. (A) Per Patteson, J., in Rox v. Stannnrd,J 7 C. k P. 673. (i) Rex V. Stannard, supra, per Patteson, J., and Williams, J. («■) Reg. V. Gadbury,' 8 C. & P. G76, ante, p. 130. » Eng. Com. Law Reps, xxxii. 682. i" lb. xxxii. 681. ' lb. xxxii. 728. d lb. xxxii. 681. « lb. ixxiv. 270. 786 OP EVIDENCE. [book VI. the jury to form their conclusion, upos the whole of the evidence, whe- ther an individual whose character was previously unblemished, has or has not committed the particular crime for which he is called upon to answer. Q')f Prosecutor The prosecutor cannot enter into the defendant's character, unless the cannot defendant enable him to do so, by calling witnesses in support of it : prisoner's '^'^^ even then the prosecutor cannot examine to particular facts, the bad cha- general character of the defendant not being put into issue, but coming '■''"''"'■• in collaterally. (i;-)J SECT. III. What Allegations must be Proved, and what may he Rejected. In the present section it is proposed to consider, 1st, What allega- tions in an indictment must be proved to support it, and what may be disregarded in evidence ; and, therewith, of the subjects of surplusage, and the divisibility of averments. 2dly, With what precision those allegations, which cannot be disregarded in evidence, must be proved ; and, therewith, of the subject at variance. ]st. What 1st. What allegations must be proved, and what may be disregarded iillegationa j evidence. In order to convict a man of an oflFence, all the material must be . ■ ^ ^ proved. facts which constitute the offence, and which are necessary to enable the parties to' avail themselves of the verdict and judgment, should the same charge be again brought forward, must be stated upon the indictment ; and all these requisite allegations must be satisfied in evidence, and proved as laid. But allegations not essential to such a purpose, which might bo entirely omitted, without affecting the charge against the pri- soner, and without detriment to the indictment, are considered as mere ^'arplusage. surplusage, and may be disregarded in evidence. (7i-) Thus, where the (/) In Rex V. Stannard,* 7 C. & P. 673, Pattcson, J., said, " I cannot in principle make any distinction between evidence of facts and evidence of character ; the latter is equally laid before the jury as the former, as being relevant to the question of guilty or not guilty ; the object of laying it before the jury is to induce them to believe, from the improbability that a person of good character should have conducted himself as alleged, that there is some mistake or misrepresentation in the evidence on the part of the prosecution, and it is strictly (•vidence in the case." And per Williams, J., " It is evidence to be submitted to the jury to induce them to say whether they think it likely that a person with such a character would liave committed the otfence." (^jj) Bull. N. P. 296, citing Martyn v. Hind, Cowp. 437. The ordinary course, however, is to ask the witness whether he has not heard that the prisoner has been tried for a particular oTence. C. S. G. {k) Rex V. Holt, 2 Leach, 593. 1 Phill. Ev. 598. -}• jSeeCoxe's (N. J.) Rep. 424:, State v. Wells. 2 Mass. Rep. 317, Commonwealth v. Hardy. ■1 Stark. Ev. 365, et seq.| [New ed. 214.] I [On a trial for murder, the character of the deceased as a violent man is not admissible in evidence. The State v. Thawley, 4 Harring. 562. The reputation of a man who has been killed as to his being quarrelsome and quick tem- jiered, cannot be admitted in evidence on the trial of the murderer, except the evidence of the killing be wholly circumstantial. The Slate x. Barfield^ 8 Iredell, 344. It is not competent on the trial of a white man for the murder of a slave, to prove that the slave was generally insolent and impudent to white persons, though not so at the time of his dnath to the prisoner who caused it. Tally v. The State, 13 Smedes & Marshall, 223. The general reputation of a kidnapper is evidence of the intent with which the defendant aided such kidnapper in carrying off a free negro. The State v. Hartcri, 4 Harrington, 582.] * Eng. Com. Law Reps, xxxii. 681. CHAP. II. § III.] WHAT ALLEGATIONS MUST BE PROVED. 7S6 prisoner was charged with robbery near (he hu/hiat^, 'm a case that I'^^aiuples occurred soon after the 3 W. & M. c. 9, (which took away clergy from ag"""'^'^ "'" all robberies, whether near the highway or elsewhere,) and a robbery in a house was the offence proved, all the judges were of opinion that the prisoner was ousted of the benefit of the clergy. (/) So upon an in- dictment which charged the '•'prisoners with rubbing a person in a field, *T87 near the highway, where the jury found a verdict, "guilty of the rob- bery, but not near the highway," it was holden by all the judges, that the prisoners wero ousted. (m) So where Pye was convicted upon au indictment, which charged him with robbing Fernhough in the dwelling- house of Aaron Milday, and it was proved that the robbery was com- mitted in a house, but it did not appear who was the owner of it; on reference to the judges, they all held the conviction proper. (h) In Min- ton's case, the indictment charged, that she feloniously, &c., in the niijht time, set fire to the barn of P. G., and burned the saiue. The jury found the prisoner guilty of setting fire to and burning the barn, but not in the night time. And the judges held that she was properly con- victed. (o) Upon an indictment on the 8. & 9 Wm. 3, c. 2G, s. 1, (now repealed,) for having a die made of iron add steel in possession, with- out lawful authority, the judges, on a case reserved for their opinion, held that as it was immaterial to the offence of what the die was made, proof of a die, either of iron or of steel, or both, would satisfy this charge. (jj) So where the indictment was upon the repealed statute 4 Geo. 2, c. 32, " for stealing so much lead belonging to the Rev. G. C. W., and then and there fixed to a certain building called '< Ilendon Church;" Buller, J., thought the charging the lead to be the property of any one was absurd and repugnant, property (in this respect) being only applicable to personal things ; that it should only have been charged to be lead affixed to the church j and that therefore the allegation as to property ought to be rejected as surplusage. ((/) In Hex V. Holt, which was au ex officio information for a libel, the information stated, that before the publishing of the libel, the king had issued a proclamation ; that after the said proclamation had been issued, divers addresses on the occasion of such proclamation had been pre- sented to his majesty by divers of his subjects; it then proceeded to stale that the defendant, well knowing the premises, &c., but intending to bring the said jjrochnnation into contempt, &c., and to stir up sedition, &c., pulishes the libel in question, entitled " a letter addressed to the addressers on the late proclamation," which was averred to mean his said majesty's proclamation, after which followed the proclamation. After conviction, it was objected, on behalf of the defendant, that there was no legal evidence at the trial to prove that the addresses had been pre- sented to the king. Buller, J., after stating his opinion that the fact (/) Ante, vol. 1, p. 904. Summers's case, 2 East, P. C. c. IG, s. 1G8, p. 785. (to) Ante, vol. 1, p. 904. Wardle's case, Russ. & Ry. C. C. R. 9. S. C. 2 East, P. G. (. 16, s. 108, p. 785. («) Pye's case, 2 East, P. C. c. 16, s. 1G8, p. 785, 786. Ante, vol. 1, p. 904, S, P. by all the judj^es in Jolmstoiie's case, ibid. (o) Miiiton's case, 2 Ea.st, P. C. c. 21, s. 5,p. 1021. }p) Rex V. Oxford, Russ. & Ry. C. C. R. 332. Rex i-. Phillips, ibid. 369. {g) Rex V. Hickman, 1 Leach, 318. S. C. 2 East, P. C. c. 16, s. 31, p. 593. On the au- thority of this ease, Holroyd, J., doubted whether, on an indictment on the repealed stat. 3 Wm. & M., c. 9 s. 5, for stealing in a lodging let to tlie prisoner, the allegation of the per- son bi/ tvkoin the lodging was let, might not be rejected as surplusage. Rex v. llcaley, R. & M. C. C. R. 1. 787 OP EVIDENCE, [book VI. had been sufficiently proved, observed, " However, on this information, I do not think the prosecutor need have given any evidence at all of these addresses ; the averment respecting these addresses seems unne- *788 cessary; for the information, after stating the proclamation and *the addresses, charges the defendant with a seditious intent to bring the said proclamation into contempt, without noticing the addresses again. The distinction between material and immaterial averments is perfectly well settled; if the averment be material, that is, if it be connected with the charge, it must be proved j but if it be totally immaterial, and if the libel be not connected with the averment, it need not be proved. "(r) Descriptive In considering the subject of surplusage, it must always be remem- •'J^'^'"™''"'^' bored, that it is a most general rule, that no allegation, whether neces- No allega- . . e ' lion can sary or unnecessary, which is descriptive of the identifij of that which be rejected ig legally essential to the charge in the indictment, can ever be re- deseriptivo jected.(s) Thus, if a man were to be charged with stealing a hlackhorsQy of identity the allegation of colour, although unnecessary, yet being descriptive of thing^es- *^^* which is material, could not be rejected. (/) So where the prisoner sential to was indicted on the Black Act for maliciously shooting at H. Sandcn in the charge, (jjg dwelling-house of James Brewer and John Sandy ; and it appeared upon the evidence, that it was in the dwelling-house of John Brewer and James Sandy ; the court held the variance fatal, and said that the prosecutor had thought proper to state the names of the owners of the house where the fact was charged to have been committed, and that although perhaps that averment was not necessary, (the statute saying who shall maliciously shoot at any person in any dwelling-house or other place,') yet having averred that it was the house of James Brewer and John Sandy, he was bound to prove it as laid.(«) So upon an indict- ment under the 57 Geo. 3, c. 90, (now repealed,) for being found armed with intent to destroy game in a certain wood <' called the old walk of, and belonging to, and then in the occupation of, John James, Earl of Waldegrave," it was proved that the wood in question was in the occu- pation of the Earl of Waldgrave; but it was also proved that the wood had always been called the lovg walk, and had never been called or known by the name of the old walk. And upon a case reserved for the opinion of the judges, it was held, that though it is not necessary, where the name of the owner or occupier of the close is stated, to state the name of the close also, yet that the averment could not be rejected, and the variance was fatal. (w) So where the indictment was for breaking, &c., the house of J. Davis, ''with intent to steal the goods of J. Wakelin, in the said house being, and there was no such person who had the goods in the house, but J. W. was put by mistake for J, D. : the prisoner was held entitled to an acquittal ; and it was ruled, that the words " of J. W." could not be rejected as surplusage, for the words were sensible and material, it being material to lay truly the pro- perty in the goods; and without such words the description of the (;■) Rex. V. Holt, 5 T. R. 436. S. C. 2 Leach, 593. See also Rex v. Phillips, 3 Camp. 74. Ante. vol. 1, p. 672. (s) 1 Stark. Ev. 433. {() 1 Stark. Ev. 434. So upon an indictment for stealing four live tame turkeys, the jodgea held that the word "live," being a description of the quality of the thing stolen, could not he rejected as surplusage. Rex v. Edwards and Walker, Russ. & Ry. C. C. R. 497. {u) Duroure's case. 1 East, P. C. 415. S. C. 1 Leach, 351 ; but see Pye's case, and Johnstone's case, ante, p. 787. (v) Rex. V. Owen, R. & M. C. C. R. 118. CHAP, II. § III.] WHAT ALLEQATIONS MUST BE PROVED. 788 offence would be incomplete. (w) This is not like the case of laying a robbery* in the dwelling-house of A., which turns out to be the dwell- *789 ing-house of B., because that circumstance is perfectly immaterial in robbery. (x) Where an indictment for stealing a bank note, described it as sijncd hy A. Hooper, for the Governor and Company of the Bank of England, it was held by the judges, on a case reserved, that there could be no couviction without evidence of the signature being by A. Hooper. [y) So the name of the person in whom the property which is the sub-^'"'n« of ject of the charge is laid, or on whom the offence is stated to have been * ^"^ ^' committed, cannot be rejected as surplusage, but must be proved, both as to Christian and surname, according to the indictment, for if the names there stated are not his real names, or the names by which he is usually known, the prisoner must be acquitted. (;;) But if there be a sufficient description of the person and degree of the owner of the pro- perty, which is supported in evidence, any subsequent addition may, it seems, be rejected as surplusage. Thus, where in an indictment for larceny, before the Irish Union, the goods stolen were stated to be the property of ''James Hamilton, Esq., commonly called Earl of Clan- brassil, in the kingdom of Ireland," and it appeared in evidence, that the prosecutor was an Irish peer, viz.. Earl of Clanbrassil, in Ireland, the judges, on a case reserved, were of opinion that, though the correct mode of describing the person of the pro.secutor would have been "James Hamilton, Esq., Earl of Clanbrassil, in the kingdom of Ire- land," yet as ''James Hamilton, Esq.," was a sufficient description of his person and degree, the subsequent words "commonly called Earl of Clanbrassil, in the kingdom of Ireland," might be rejected as sur- plusage. (a) Although it be true, as above stated, that in order to convict a man Conviction of an offence, that offence must be completely averred in the indictment, •'"^° and the evidence must correspond with and support the whole of the material averments, yet it by no means follows that it is necessary to prove the offence charged in the indictment to the icliolc extent laid, for it is fully settled, that in criminal cases, it is sufficient for the prosecu- tor to prove so much of the charge as constitutes an offence punishable by law.(i) *"The distinction," said Lord Ellenborough, in the case *790 {w) Jenk's case, 2 East, P. C. c. 15, s. 2r), p. 514. So also on an indiclment for l)urglary, where the name of the owner of the dwelling-house is mis-stated, the error is fatal. Ante, vol. 1, p. 82G. (x) Ibid. (;/) Ilex V. Craven, Russ. & Ry. C. C. R. 14. Iz) See /)o«<, p. 1'Jb, as to variances in respect of the name of the party injured. (a) Rex V. Graham, 2 Leach, 547. From what is said in the latter part of the opinion of the judges, as delivered by Pcrryn, B., it is not clear whether their lordships thought the words stated above should be rejected as surplusage, or only the words " commonly called." In a case before Mr. Burroughs, where the prisoner was indicted for stealing goods, laid to be the property of Andrew \Vm. Gother, Esq., and it appeared on the cross-examination of the prosecutor, that he was not an esquire, whereupon it was objected that it was a fatal variance; the learned judge overruled the objection, and held that the addition of esquire to the name of the person in whom the projierty was laid, was mere surplusage, Rex v. Ogilvie,* 2 C. & P. 230. It has been said, however, that where the person injured has a name of dignity, as a peer, baronet, or knight, he should be described by it; and that if he be de- scribed as a knight, when ho is in fact a baronet, or the contrary, the variance would be fatal ; because a name of dignity is not merely an addition, but is actually part of the name, Archb. Cr. P. 30. (6) Rex V. Hollingberry,'' 4 B. & C. 329. This rule, however, must be understood, as it » Eng. Com. Law Reps. xii. 103. »> lb. x. 346. 790 OF EVIDENCE. [BOOK VI. Itissuffi- of Rex V. IIunt,(r) "ruus through the whole criminal law, and it is in- provii so variably enough to prove so much of the indictment as shows that the much of defendant has committed a substantive crime therein specified." (<'7)f meuTa^^ On a charge of petit treason, if the killing with malice were proved, but constitutes no circumstances of aggravation were proved to make the oflFence trea- '''"^'Tbl ^"°^^^*^> ^^6 prisoner might have been found guilty of the murder.(e) by law. If A. be charged with the murder of B., i. c. with feloniously killing B. of malice prepense, and all but the fact of malice prepense be proved, A. may clearly be convicted of manslaughter, for the indictment con- tains all the allegations essential to that charge ; A. is fully apprised of the nature of it, the verdict enables the court to pronounce the proper judgment, and A. may plead his acquittal or conviction in bar of any subsequent indictment founded on the same facts. (/) On an indictment for burglary and stealing goods, if it appear that no burglary was committed, as where the breaking and entering were not in the night, or on a charge of robbery, where the property was not taken from the person by violence, or by putting in fear, the prisoner may be found guilty of the simple larceny on]j.(g\ On an indictment for stealing in a dwelling-house, persons being therein and put in fear, the prisoner may be convicted of simple lar- should seem, with this qualification; that if a prisoner be indicted for murder or felony, he cannot be convicted of a misdemeanor, except in the case of felonies including assaults. See vol. 1, p. "778, et seq. Thus, where upon the facts stated upon a special verdict upon an in- dictment for felony, the Court of King's Bench was of opinion that the prisoner could not be convicted of felony, the Chief Justice (Sir Wm. Lee,) started a question, whether, as the case amounted undoubtedly to a great misdemeanor, they could not give judgment as for a trespass: and the counsel for the crown, in support of the power of the court to do so, cited 2 Hawk. P. C. c. 440, and Cro. Jac. 497. Martin Leeser's case, 1 And. 351. Kel. 29. Dalt. 331. B contra, it was insisted that by this means a defendant would be deprived of many advantages : for if he was indicted properly, he might have counsel, a copy of his indict- ment, and a special jury. The court ordered the prisoner to be discharged ; and said, that in the cases cited pro rege, the judges appear to have been transported with zeal too far. Rex V. Westbeer, 2 Stra. 1133. S. C. 1 Leach, 12. {See also 7 Mass. R. 249. Common- wealth V. Newill & al.} (c) 2 Campb. 585. {d) The same distinction applies to the averments in the indictment. If an offence suffi- cient to maintain the indictment be well laid, it is enough, though other matters, which would increase the offence, are ill averred. In a civil action, where one part of a declara- tion is ill, and the jury find entire damages, the judgment must be arrested, because the court cannot apportion them ; but in indictments the court assesses the fine, and they will set it only according to those facts which are well laid. Reg. v. Ingram, 1 Salk. 384. (e) Case of Swan and Jeffreys, Fost. 104. 1 Phill. Ev. 501. (/) Mackalley's case, 9 Rep, 67 b. Co. Litt( 282 a. Gilb. Ev. 232. (g) 2 Hale, P. C. 302. 1 Phill. Ed. 501. So where the prisoners were acquitted of the burglary, upon an indictment for a burglary and larceny, and found guilty of stealing in the dwelling-house to the amount of forty shillings, it was holden that they were excluded from their clergy, though there was no separate and distinct count in the indictment on the sta- tute 12 Anne, c. 7, now repealed by the 7 & 8 Geo. 4, c. 27, and the judges were of opinion that the indictment contained every charge that was necessary in an indictment upon that statute. Ante, vol. 1, p. 839. Rex v. Withal, 1 Leach, 88. f [On an indictment for an assault with intent to murder, there may be a conviction o' an assault simply. State v. Coy, 2 Aik. 181. Steivart v. State, 5 Ohio, 242. But on an in- dictment for murder there cannot be a conviction of an assault with intent to murder, nor vice versa. Com. v. Robi/, 12 Pick. 496. Nor upon an indictment for stealing can there be a conviction of receiving, &c. Ross v. The State, I Blackf. 391. Proof of a rape will sus- tain an indictment for an attempt to commit a rape. State v. Shepard, 7 Conn. 54. See State V. Tat/lor, 2 Bailey, 49. A defendant indicted for an assault and battery, with intent to commit murder, may be convicted of a simple assault and battery, though there be no count in the indictment to that effect. Greater offences embrace the lesser of a kindred character. The State v. Stedman, 7 Porter, 495.] CHAP. II. § III.] WHAT ALLEGATIONS MUST BE PROVED. 790 cony.(^) And in all complicated larcenies, the prisoner may bo acquitted of the circumstances of aggravation, as the fear of violence, and found guilty of simple larceny. (t) So upon an indictment for horse-steal- ing, which is bad for not describing the animal by any term used in the statute, there may be a conviction for simple larceny. (y) So if a man had been indicted upon the statute *of 1 Jae. of stabbing contra furmam *79l statitfi, the jury might acquit him upon the statute, and find him guilty of manslaughter at common law.(/.-) And if a man had been indicted of stealing goods of the value of ten shillings, the jury miglit find him guilty only of goods to the value of sixpence, and so guilty only of petit larceny, (/]f If an indictment for treason charge several overt acts, it is sufficient to prove one.(m) If the indictment charges, that the defend- instances ant did, and caused to be done, a particular act, as ''forged, and caused ^^ JiviHible to be forged," it is enough to prove either one or the other. (?() If the defendant is charged with composing, printing, and publishing a libel, he may be convicted only of the printing and publishing. (o) So where the prisoner was indicted for having published a libel of and concerning certain magistrates, with intent to defame those magistrates, and also with a malicious intent to bring the administration of justice into con- tempt; Bayley, J., informed the jury, that if thoy were of opinion that the defendant had published the libel with either of those intentions, they ought to find the prisoner guilty. (j)) Where the indictment charged the prisoner with having as.saulted a female child, with intent to abuse and carnally to know her; and the jury found that the prisoner as- saulted the child with intent to abuse her, but negatived the intention charged carnally to know her ; Ilolroyd, J., held that the averment of intention was divisible, and that the prisoner might be convicted of an assault with intent to abuse simpl3^(^) On an indictment on the 7 Geo. 3, c. 50, s. 1, (now repealed) stating the prisoner to have been employed in two branches of the post-office, proof of his having been employed in either, was held sufficient. (/•) An(J in the same case, the letter em- bezzled having been described in the indictment as having contained several notes, proof of its having contained any one of them was held sufficient. (,s) Upon an indictment for obtaining money under false pre- tences, it is not necessary to prove the whole of the pretence charged, proof of part of the pretence, and that the money was obtained by such (h) Rex V. Etherington, 2 Leach, Gil. S. C. 2 East, P. C. 635, ante, vol. 1, p. 851. (?) 2 F)ast, P. C. 784. But where upon siu indictment for robbery from the person, a spe- cial verdict was found, stating f;icts wliich in judgment of law did not amount to a taking from the person, but .showed a larceny of the party's goods; yet as the only doubt referred to the jury was, whether the prisoners were or were not guilty of the felony and robbery charged against them in the indictment, the judges thought that judgment as for larceny could not be given upon that finding; but they remanded the prisoners to be tried ui)on another indictment for that ofl'ence. Ibid. (./) Rex v. Heany, Russ. & Ry. 416. (A-) 2 Hale, P. C. .302. (/) 2 Hale, P. C. ."502. The distinction between grand and petit larceny was abolished by the 7 & 8 Geo. 4, c. 39. (m) Fost. 194. (n) Hy Lord Mansfield in Rex v. Middlehursf, 1 P.urr. 400. (o) Rex V. Hunt, 2 Canipb. 583. Rex v. Williams, Ibid. 646. (p) Rex V. Evans,» 3 Stark. N. P. C. 35. Iq) Rex !'. Dinvson,*" 3 Stark. N. P. C. 62. (r) Rex V. Ellins, Russ. & Ry. C. C. R. 188. A7Ue, p. 216. And sec Shaw's case, ibid. (.«) Ibid. f [Ace. Poindexter's case, 6 Rand. 668.] » Eng. Cora. Law Reps. xiv. 154. ' lb. xiv. 163. 791 OP EVIDENCE. [book VI, part, is sufficient. (<) So an indictment for embezzling need not specify the exact sum embezzled; as where the indictment charged the prisoner with embezzling, among other things, notes for one pound each, and evidence was given that there were one pound notes in the sum of money embezzled; this was held to support the indictment. (?*) Where an information for publishing a malicious and seditious libel, contained an averment that outrages had been committed m and in the ncvjhbour- hood of Nottingham ; it was held that such averment was divisible, and *792 that it need not be proved that they had been *committed in both places. (w) But if it be necessary to state a prescription in an indictment such prescription must be proved to the whole extent laid, otherwise the consequence might be, that the record would be evidence of a right which had been expressly disproved at the trial. (««) Jointof- Where the indictment charges several with a joint offence, any one charo-od °^ them alone may be found guilty. But they cannot be found guilty against separately of separate parts of the charge, and if two be so found guilty onl'alonT separately, a pardon must be obtained, or nolle jjrosequi entered, as to convicted, the one who stands second upon the verdict, before judgment can be given against the other. Thus, where two persons, Hempstead and Hudson, were indicted upon the statute of Anne for stealing in a dwell- ing-house to the value of Ql. lOs., and the jury found Hempstead guilty as to part of the articles of the value of 6^., and Hudson guilty as to the residue, the judges (upon a case reserved) held, that judgment could not be given against both, but that upon a pardon or nolle jproscqui as to Hudson, it might be given against Hempstead. (a;) 2dly With 2dly. It is to be considered with what precision of proof those allega- what preci-tions, which cannot be disregarded in evidence, must be supported; or, proof the '"^ other words, what is a fatal variance between a material averment in allegations an indictment, and the evidence adduced in support of it. The general which can- j.yjg ^^ ^j^jg subiect is, that a variance between the indictment and the not be dis- .,.''. regarded in evidence is not material provided the substance of the matter be evidence found. (y.) supported, Upou this principle, where an indictment for the murder of a serjeant and herein at mace of the city of London supposed that the sheriff of London, R 1 d th / ^P'^'^ * plaint entered, made a precept to the serjeant at mace to arrest it will be the defendant, and it appeared that there was not any such precept sufficient to made, and that, by the custom of London, after the plaint entered, any substauco serjeant ex. offiuo^ at the request of the plaintiff, might arrest a defcnd- ofthe issue, ant, absque aliquo 2Jrcecej)to, ore tenus vel alitcr, it was holden that this statement of the precept was but circumstance not necessary to be sup- ported in evidence, and that it was sufficient if the substance of the matter were proved without any precise regard to circumstance. (.i) In an indictment for perjury in an answer to a bill in Chancery, the bill [i) Rex V. Hill, Russ. &Ry. C. C. R. 190. Ante, p. 310. (m) Carson's cas'e, Russ. & Ry. C. C. R. 303. So on an indictment for extortion, al- leging that the defendant extorted twenty shillings, it is sufficient to prove that he ex- torted one shilling. Per Holt, J., Rex w.Burdett, LordRaym. 149. See also Rex v. Gillham, 6 T. R. 265. Serjeant v. Tilbury, 16 East, 416. Rex v. Hill and others,* 1 Stark. N. P. C. 359. (v) Rex V. Sutton, 4 M. & S. 532. \tu) Rex V. Marquis of Buckingham, 4 Campb. 189. (x) Rex V. Hempstead, Russ. & Ry. C. C. R. 344. Ante, vol. 1, p. 858. {y) 1 East, P. C. c. 5, s. 115, p. 345. (z) Rex V. Mackally, 9 Co. 67 a. Ante, vol. 1, p. 569. * Eng. Com. Law Reps. ii. 426. CHAP. II. § III.] WJIAT ALLEGATIONS MUST BE PROVED. 792 was stated to havo been filed by A. against B. (the present defendant) and another, it appeared in evidence that it was filed against B., C. and D., but the perjury was assigned on a part of the answer which was material between A. and B. ; and Lord Kllenborough held this uut to be a fatal variance. (a) And with respect to the proof of the ofTence charged the rule is uni- Proof of vcrsal, that it is suflGcicnt if the evidence agree in substance with the "P""" . averments in the indictment. Thus on an indictment for murder, it will be sufiicicnt if the manner of the death proved agree in substance with that which is charged. Therefore if it appear that the party wore killed by a different weapon from that described,* it will maintain the indict- •793 ment, as if a wound or bruise alleged to have been given with a sword be proved to have been given with a staff or axe, or a wound or bruise alleged to have been given with a wooden staff, be proved to have been given with a stone. So if the death be laid to have been by one sort of poisoning, and it turn out to have been by another, the difference will not be material. ((0) But if a person be indicted for one species of killing, as by poisoning, he cannot be convicted by evidence of a species of death entirely different, as by shooting, starving, or strangling.(c) So where upon an indictment for murder, which charged that the prisoner with a certain piece of brick, which he then and there held in his right hand, struck and beat the deceased, thereby giving to him, with the piece of brick aforesaid, one mortal wound and fracture, of which he died ; it appeared probable upon the evidence, not that the prisoner struck with the piece of brick, but that he struck with his fist, and that the deceased fell from the blow upon the piece of brick, and that the fall upon the brick was the cause of the death. The jury found that this was the case. As the indictment contained no charge of throwing the deceased down, the learned judge who tried the prisoner inclined to think the evidence did not correspond with the charge, and reserved the point for the consideration of the judges, who were unanimously of opinion that the means of death were not truly stated, and that the va- riance was fatal. ((7) So where the indictment stated that the prisoner assaulted the deceased, and struck and beat him on the head, and then and there gave him divers mortal blows and bruises of which he died j and the evidence was that the prisoner knocked the deceased down by a blow on the head, and that in falling down upon the ground he re- ceived the injury which caused his death; the judges, on a case reserved, hold that, the cause of death not being truly stated, the prisoner could not be convicted. (e) If the indictment charges that A. gave the mor- [a] Rex V. Benson, 2 Campb. 508. S. P. by Abbott, C. J. Rex v. Powell,* R. /or v. The Commonwealth, 2 Dana, 298.] • Eng. Com. Law Reps. xiv. 210. 795 OF EVIDENCE. [BOOK VI. true. Upon an indictment for an assault upon Elizabeth Edwards, it appeared that there were two of that name, mother and daughter, and that in fact the assault, had been made on the daughter; but the convic- ■ tion was held to be good.(rt So where an indictment laid the property of a horse in Joshua Jennings, it was held to be supported by proof of property in Joshua Jennings the youngcr/w) So where an indictment for perjury alleged a suit to have been between Peacock and *R,. Miles, •796 and the proceedings stated the suit to have been between Peacock and R. Miles the elder, it was held no variance. («) The prosecutor may be described by the name he has assumed, though it is not his right name ; Name as- thus, where the goods stolen were laid to be the property of Mary Fume . Johnson, and the prosecutrix stated that her original name was Mary Davies, but that she had been called and known by the name of Mary Johnson, and not Mary Davies, for the last five years, and had not taken the name of Johnson for any purpose of concealment or of fraud ; the judges, on a case reserved, were of opinion that the time the prosecutrix had been known by the name of Johnson, warranted her being called By which a SO in the indictment. (mj) And so a person is well described by the name person IS ^^ which he is generally known. Thus where a count for offering a generally . ^ "^ . ° known. bribe to an officer of the customs stated his name as Thomas Dabbs, and he proved that his true name was Thomas Tyrrel Dabbs, but that he generally went by the name of Thomas Dabbs, and signed his name Thomas Dabbs without Tyrrel; it was held that this was no variance. (a;) So where an indictment for robbery laid the property in John Hancox, and it appeared that his name was John Walter Hancox, but that he was generally known by the name of John Hancox j Parke, J., held that this was sufficient.(j/) So where in an indictment a boy was called Edward Dobson, and he stated that his right name was Dobson, but that most persons who knew him called him Peach, and that his mother had married two husbands, the first named Peach and the second Dobson, and that he was told by his mother that he was the son of the latter, and that she always used to call him Dobson ; it was held that the evidence that the boy's mother had always called him Dobson must be taken to be conclusive as to his name, and that, therefore, he was rightly described (I) Rex V. Peace,' 3 B. & A. 579. The court said, "The question here is, not whether the party has been rightly described, but who the party is who is described in the indictment as having been assaulted." But generally if the father and son be both named A. B., by A. B. simply the father shall be intended. Wilson r. Stubs, Hob. 330. Lepiot v. Browne, 1 Salk. 7. Sweeting v. Fowler," 1 Stark, N. P. C. 106. 1 Stark. Ev. 472. (u) Hodgson's case, 1 Lewin, 236, Parke, J. S. P. Bland's case, ibid., Bolland, B. (v) Rex V. Bailey,*^ 7 C. & P. 264. "Williams, J., who cited a MS. case where it was alleged that there was an indictment against A. B. and C. D., at a former time, and on the record being produced it appeared that it was an indictment against A. B. and C. D. the younger, and Lawrence, J., held it a fatal variance; on which it was observed, that that must have been on the ground that if a person was named simply, it meant the elder. [w) Rex r. Norton, Russ. & Ry. 510. [x) Attor)iey General /'. Hawkes, 1 Tyrw. 3 and per Alexander, C. B., " By the aid of an averment of the identity of Thomas Dabbs and Thomas Tyrrel Dabbs, the defendant might plead an acquittal on this information, by way of autrefois acquit to another information for offering a bribe to Thomas Tyrrel Dabbs on this occasion." {y) Rex V. Berriman,-! 5 C. & P. 661. Rex v. Sheen, « 2 C. & P. 634. And see Rex v. f G C. & P. 408, where an indictment for stealing a whip, the property of Richard Pratt, was ■held to be sustained by evidence that the prosecutor was generally known by that name, although his proper name was Richard Jeremiah Pratt. And see Williams v. Bryant, 5 M. & W. 477, where the defendant executed a bond in the name of William Bryant, being known at that time by that name, his real name being William Francis Bryant, and the court held that the proof was sufficient upon the plea of non est factum. * Eng. Com. Law Reps. v. 384. ^ lb. ii. 316 ' lb. xxxii. 505. d lb. xxiv. 473. • lb. xii. 295. f lb. xxv. 460. CHAP. II. § III.] WUAT ALLEGATIONS MUST BE PROVED. 796 in the iadictmeat.(2) But where, on the indictment of Francis Clark, Of bas- for the murder of « George Lakemen Clark, a base-born infant male child," it appeared in evidence that the deceased child was a bastard son of the prisoner, and that she murdered it, as charged in the indict- ment, but that the child was christened George Lakemaii, being the names of its reputed lather, and that it was called George Lakemau, and not by any other name known to the witnesses, and that the prisoner called it George Lukcman ; the judges held that as the child had not obtained his mother's name by reputation, he *was improperly called *797 Clark in the indictment, and as there was nothing but the name to identify him in the indictment, the conviction could not be supported. (a) And so where an illegitimate child, three weeks old, hud been baptized Walter's by the name of '■'■ Eliza," but no surname was meutioned at the time of *^**®' baptism, and neither the register, nor any copy of it, was produced at the trial, and an indictment for murder described her as << Eliza Waters," Waters being the name of her mother ; it was held, upon a case reserved, that the child had not acquired the name of Waters by reputation, and that the conviction was wrong. (/>) Where, however, an indictment Evans's charged the murder of Emma Evans, and it appeared that the deceased^*"- was an illegitimate child born in a workhouse, and baptized on the 9th reputation, of September, by the name of Emma, and drowned on the 11th of the same month, when about six weeks old, and that up to the time of the baptism she was not called by any name, but that from the 9th to the lllh of September she was called Emma Evans, Evans being the mother's name; it was held that there was sufficient evidence of repu- tation for the consideration of the jury, and that this case was dis- tinguishable from the last, because there was no evidence there that the child was ever called Waters at all.(c) And where, on an indictment Smith's for the murder of "a certain female child whose name to the jurors was unknown," it appeared that the child had not been baptized, but the prisoner had said she should like it to be called "Mary Ann," and had called it <■<■ her Mary Ann" at one time, and " Little Mary" at another; the father was a Baptist, and the child was a bastard, and twelve days old; and, upon a case reserved, it was held that the child had not gained a name by reputation, and therefore the indictment was right. ('/) Where an indictment for larceny laid the goods stolen to be the property of Victoria Baroness Turkheim, and the prosecutrix proved that Baroness Turkheim was her title only^ and no part of her proper name, but that she was not only reputed to possess that title, but did actually possess it in right of an estate inherited from her father, and that she had con- stantly and uniformly acted in and been known by that appellation, but that her name without her title was Selina Victoria; the judges held the description sufficient. (e) (r) Rex V. Williams,* 7 C. A; P. 298, Williams, J., after consulting Alderson, B. (a) Rex V. Clark, Russ. & Ry. C. C. R. 358. (b) Rex V. Waters,"* R. & M. C. 0. R. 457. S. C. 7 C. & P. 250. (c) Reg. V. Evans,'= 8 C. & P. 765, Erskiue, J., after consulting Patteson, J. (d) Rex V. Smith,'' R. & M. C. C. R. 402. S. C. G C. & P. 151. (c) Sull's case, 2 Leach, 8G1. And indictment for a robbery on an immarricd woman in her maiden name is good, although she marry before the indictment is found, Rex v. Turner, 1 Leach, 53G. Where an indictment cliarged the prisoner with the manslaughter of Mark Robinson, and a witness stated that tlie deceased stayed three days and niglits at his inn, and that he asked the deceased his name, and that letters came direct in that name, which » Eng. Com. Law Reps, xxxii. 515. » jb. xxxii. 503. <: lb. xxxiv. 625. '• lb. XXV. 327. Vol. II.— 52 797 OF EVIDENCE. [book VI. Idem so nans. *708 Viirianco between But if the name proved be idem sonans with that in the indictment, and different in spelling only, the variance will be immaterial. Thus Scgravc for Scagrave is no variance/y) nor is Benedetto for Beniditto. (A) So on an indictment for committing an offence on one John Whyneard, it appeared that his name was spelt Winyard, *but it was pronounced Winnyard ; and the judges, on a case reserved, held that the prisoner had been rightly convicted .(?') But an indictment charging the prisoner with having personated " Peter M'Cunn" is not supported by evidence that he personated " Peter M'Carn."(y) So it has been decided that " Shakespeare" cannot be considered as idem sonans with " Shake- pear." (/c) Many fatal variances have arisen in cases where it is necessary to state a record, deed, or other writing in the indictment, between such &c., stated Statement, and the record, deed, or writing, when produced in evidence. (^) in indict- "VVhere the matter of a written instrument is introduced in pleading by produced in tl"*^ words '< according to the tenor following," or " of the tenor follow- evidence. ing," or " in the words and figures following," or " the words and mat- ters following," or in fact any words which imply that a correct recital is intended, any the slightest variance between the instrument set out, and that produced in evidence is fatal. (m) But a most salutary statute, 9 Geo. 4, c. 15, has recently passed to provide against variances of this description, in cases of misdemeanors, which, after reciting that "great expense is often incurred, and delay or failure of justice takes place at trials, by reason of variances between writings produced in evidence, and the recital or setting forth thereof upon the record on which the trial print, and }§ had, in matters not material to the merits of the case, and such record cannot now in any case be amended at the trial, and in some cases can- not be amended at any time," enacts that, " it shall and may be lawful for every court of record holding plea in civil actions, any judge pitting at nisi 2)r ills, and any court of oyer and terminer and general gaol deli- very in England, Wales, the town of Berwick-upon-Tweed, and Ire- land, if such court or judge shall see fit so to do, to cause the record on which any trial may be pending before any such judge or court in any civil action, or in any indictment or information for any misde- meanor, when any variance shall appear between any matter in writing or in print produced in evidence, and the recital or setting forth there- of upon the record whereon the trial is pending, to be forthwith amended in such particular by some ofiicer of the court, on payment of sucli costs (if any) to the other party as such judge or court shall think rea- sonable, and thereupon the trial shall proceed as if no such variance had appeared ; and in case such trial shall be had at nisi prius, the order for the amendment shall be indorsed on the postea, and returned to- gether with the record; and thereupon the papers, rolls, and other records of the court from which such record issued, shall be amended accordingly." letters -were delivered to the deceased, and received by him ; Patteson, J., held that the wit- ness might be asked what name the deceased told him, as it was evidence to show the name by which he usually went. Rex v. Timmins,* 7 C. & P. 499. {g) Williams v. Ogle, 2 Stra. 889. {h) Abitbol v. Beniditto, 2 Taunt. 401. (?) Rex V. Foster, Russ. & Ry. 412. (/) Rex v. Tannet, Russ. & Ry. 351. (A:)Rex v. Shakespeare, 10 East, 83. So Tarbart for Tabart is a fiital variance in a bail piece. Bingham v. Dickie, 5 Taunt. 14. (I) See the cases collected in 1 Stark. Ev. 431, e< scq. (m) 2 East, P. C. 9Y6. Arch. Cr. PI. 46 and 99. * Eng. Com. Law Reps, xxxli. 600. 9 Geo. 4, c. 15, for amending variances between matters in writing or the record in cases of misde- meanor. CHAP. II. § III.] AVIIAT ALLEGATIONS MUST BE PROVED. 798 It has been held in two cases of perjury that aiuendments ought to he Amond- inade very sparingly under this statute, and it seems they ought not to J"/^"'!*,"" be made where the variance iniglit have been avoidod by ordinar}'^ care stuiutc in comparing the indictment and the instrument. («) *ln (lie fir.-;t case *70i» th'i indictn)ent al]e<'('d tliat a iinlgnx'nt was entorcil up «in or as of!'"^''''*" , ' be i. Oriel,* 4 C k P. 22. Lord Tciulcrden, C. J., refused to amend the declara- tion, on tlie ground that the mistake arose from want of common care in drawing it, hut in ni;iny instances it has been the want of common care that caused the mistake, and to pre- vent the failure of justice through such carelessness or ignorance, was one of the objects of the legislature in passing the act. 1 Phill. Ev. 518. (o) Rex ('. Cooke,'' 7 C. & P. ooD, Patteson, J., and Littlcdale, J., ante, p. 029. [p) Reg. ('. llcwins,*^ 9 C. & P. 78G, Coleridge, J., ff/i/e, p. G29. (7) Reg. i>. Christian,'' 1 C. & Mars. 388. Wherein a civil snit the declaration stated as matter of inducement a judgment recovered in the Queen's Bench, and the examined copy of the judgment being produced turned out to be a judgment in the Common Picas, Lord Tendenicn, C. J., allowed the record to be amended, as the act allows the amendment where an^' variance appears between any matter in writing produced in evidence and the recital or netting forth thereof on the record, and the examined cop}' of the judgment was a matter in writing so produced, and the statute thereof authorized the amendment, liriant v. Kicko.« M. & M. 3'>'J. So an amendment in the date of a bill of exchange has been allowed. IJeutz- ing V. Scott," 4 C. k P. 24, Parke, J. And v.here adeclarationstated thnt the plaintiff cau.scd to be kept with the defendant a copy of a writ oi' nuhporna, and it appeared th.at the original writ was directed to the defendant and two others, while the cop}' was directed to liim and John Doe, the latter name not appearing in the original 8ubpo?na at all ; Lord Temlcrden, C. .r., allowed the allegation to be altered into "a copy of so much of the said writ of suhptxna as related to the said defendant ;" and the Court of Common Pleas held the amendment was projierly made. Masferman v. Judson,' 8 Bing. R. 224. And upon the authority of this case the ('ourt of King's Hencii held that the statement of a contract in the declaration, might be amended so as to agree with the written contract produced at the trial, as to the time for the j)erformaiice of it, though it did not appear in the declaration whether the con- tract w!is in writing or not. Lamey c. Rishoj),* 4 B. & Ad. 479, and per Taunton, J. "If the plaintifl" had declared upon a contract in writing the act would apply; then it is absurd to sa)' that it does not apply, because tlie plaintiff has omitted the words ' by agreement in writing,' which in pleading arc unnecessary.'' This case seems to overrule Ryder v. Malbon.'' :; C k P. 594, where Park, J. A. J., held that a statement in an avowry of the terms of the holding could not be amended so as to make them conformable with the lease produced at t'lic trial. In Smith v. Brandram,' 2 M. lb. xxxii. 629. <= lb. xxxviii. .^30. ^ lb. xli. .314. • lb. xxii. 333. < lb. x:?i. 281. » lb. xxiv. 106. *> lb. xiv. 470. ' lb. xL 353. 799 OF EVIDENCE. [BOOK VI. Proof of On the trial of indictments for oflFcnces which are not local in their ^'r*^** the "!^turc, generally speaking, it will be sufficient to show that the offence ofioiico is was committed in some place within the county or other division; and not local jj. gQcmg to be agreed, says Mr. Serjeant Hawkins, (r) that a mistake of the place, in which an offence is laid, will not be material upon the evi- dence, on the plea of not guilty, if the fact be proved at some other place in the same county. Although the offence must be proved to have *800 *been committed in th ecounty, where the prisoner is tried, yet, after such proof, the acts of the prisoner in any other county, tending to esta- blish the charge against him, are properly admissible in evidence. (s) This has been determined to be the rule in cases of high treason, and must equally apply to cases of conspiracy and felony. (/) Upon the trial Prosecutor pf ^^^ indictment for a transitory felony the prosecutor need not prove prove affir- affirmatively that there is such a parish as that laid in the indictment, raatively ^n indictment for highway robbery laid the offence in the parish of St. i^'suchT Thomas, Pensford, in the county of Somerset, audit was objected by place with- the counsel for the prisoner, that there was no proof that there was any '° ^^® such parish in the county, all the witnesses swearing to the parish of Pensford, and not St. Thomas, Pensford; Littledale, J., said the objec- tion was not valid, and that he once reserved a case from the Oxford circuit on that ground, and a great majority of the judges held, that it was not necessary to prove affirmatively in the case for the prosecution, that such a parish as that laid in the indictment exists within the county, and that they expressed a doubt how they should hold, even where it was proved negatively for the prisoner that there was no such parish. (?*) Nor is it \j^(j [^ [^ ^q objection in the case of a transitory felony on the plea fence on of not guilty, that there is no such place in the county as that in which not guilty the offence is stated to have been committed. An indictment stated Snl such" that the prisoner at the parish of Normanton in the Woulds, in the pari.sh. county of N., maliciously set fire to a stack of beans, on not guilty pleaded it .appeared that there was no such parish, and two points were saved for the consideration of the judges ; one, whether the offence was local ; the other, whether there being no such parish was an objection on not guilty; and the judges were unanimous that the offence had nothinw of locality in it, and that there being no such place in the county could only be taken advantage of on a plea in abatement. (w) So where an indictment for larceny laid the stealing " at the parish of Hales Owen in the county of Worcester," and it appeared that that parish was situate partly in Worcestershire and partly in Shropshire, it was held sufficient. (^«) Exceptions To the above rule, as to the parish and place being immaterial, there as to proof ^^^ gomc exceptions; as, if the statute upon which the indictment is applies where the variance is between some matter in writing or in print produced in evidence, iind its recital o;i the record. It may be added that in Prudhomme v. Eraser, 1 M. & Rob. 435, Lord Dcnman, C. J., refused to order superfluous averments and innuendos in a declaration for libel to be struck out ,at the trial under the 3 & 4 Wm. 4, c. 42, s. 23. Mr. Starkie, 1 Ev. 495, treats this as a decision under the 9 Geo. 4, c. 15, but that is an error, and that statute seems clearly not to apply to such a case. 0. S. G. (r) 2 P. 0. c. 25, s. 84. (.«) 1 Pbill. Ev. 206, 6th ed. it) Ibid. (u) Rex v. Dowling,^ R. & M. N. P. R. 433. (v) Rex V. Woodward, MS. Bayley, J. 3 Burn. .1. I). & Wms. 384. S. C. R. & M. C. C. R. 323, antr, p. 568. (w) Rex '•• Perkins," 4 C. & P. 363, Park, J. A. .J. » Eng. Com. Law Reps. xxi. 483. ^ lb. xix. 419. CHAP. II. § III.] WHAT ALLEGATIONS MUST BE PROVED. 800 framed give the penalty to the poor of the parish in which the offence "'fpl^"*' was coniiiiitte<-l, the offence must be proved to have been committed in the parish hiid in the indictment. (x) But if the offence be in its nature local, and there be no such *placc *80] as that laid in the indictment, the prisoner must be acquitted of such Where tbe local offence ; if, however, the indictment contain a charge of a transi- ^^,^.a\ the tory offence, as larceny, the ])risoner may be convicted of such transitory I'urith offence, although he is ac(juitted of the local offence. The indictment "'^.^^1 ^^ stated that the prisoners '' late of the parish of St. l*eter the Great in laid iu the the county of AV.," on, &,c., "at the parish aforesaid, in the county '"'^''''"*'"*- aforesaid, the warehouse of II. Webb, there situate," feloniously did break and enter and stole certain goods therein, and it appeared that the parish of St. Peter the Great was partly in the county of AV., and partly in the county of the city of W., but that the warehou.se was in that part of the parish which was in the county of W.; and Patteson, J., held that this was a local description of the place where the ware- house was situate, and that the indictment was not supported as to the breaking and entering the warehouse, but that the prisoners might bo convicted of the simple larceny. (^) So the offence of stealing in the dwelling-house to the value of five pounds is local, and, therefore, if the house bo stated to be situate in a parish and county, it must be proved that the whole of such parish is iu such county, and if it be not so proved the prisoner cannot be convicted of stealing in the dwelling- house to the value of five pounds, but he may be of the simple larceny. Tbe indictment charged that the prisoner, " late of the parish of St. Catherine, in the county of Gloucester," stole divers articles to the value of five pounds in the dwelling-house of M. I). G. Muirhead, " there situate," and it was proved that the parish of St. Catherine was partly in the county of Gloucester and partly in the county of the city of Gloucester, but that the house was situate in that part which was iu the county of Gloucester; and Cresswell, J., on the authority of the preceding case, held that the prisoner could not be convicted of steal- ing in the dwelling-house, but that he might be convicted of simple larceny. (2) •So on an indictment against a parish for not repairing a highway, the part of the road out of repair must be proved to be within the parish. (aj So it has been held, that where an injury is partly local and partly transitory, and a precise local description is given, a variance iu proof of the place is fatal to the whole, for the whole being one entire fact, the local description becomes descriptive of the transitory injury. (i) (x) Arch. Cr. PI. 95. See Rex v. Glossop,* 4 B. & Aid. 616. (.y) Reg. V. Brookes and others,'' Worcester Spr. Ass. 1842, MS. C. S. G. S. C. 1 C. & Mars. 543. (z) Reg. V. Jackson, Gloucester Spr. Ass. 1842, MS. C. S. G. \a) Ante, vol 1, p. 364. [h) 1 Stark. Ev. 466, citing Rex v. Cranage, 1 Salk. 385. In this case the indictment stated that the defendant with others riotouslj- assembled, et qiioddam cubicuhiin cnjundum S. S., in domn mannionali nijtixdam Darid Jamrs frer/>( et intravit, and thirtj' yards of stutT took and carried away; upon evidence it appeare(i to be the house of David Jameson, and Par- ker, C. J., held that this did not maintain the indictment, for part is local and j)art not local ; the cuhiculiim is local, the taking and carrying away is not local, but then all is put together as one entire fact under one description, and you cannot divide them. So if there be an indictment for acting a ])lay and speaking obscene words in such a j)ari.m) It has been considered a rule, that the want of a videlicet will in some *803 cases make an averment material that would not otherwise be so; as, if Videlicet, a thing which is not material is positively averred without a videlicet, though it was not necessary to be so, yet it is thereby made material and must be proved, and that, therefore, where a party does not mean to be concluded by a precise sum or day stated, he ought to plead it under a videlicet, for if he do not, he will be bound to prove the exact sum or day laid, it being a settled distinction, that where any thing which is not material is laid under a videlicet, the party is not concluded by it, but he is where there is no videlicet. (n) But it is by no means generally true, that the omission of a videlicet will make it necessary to prove the particular sum or day, &c., strictly, as laid,(ry) for the want of a vide- licet will never do harm where, from the nature of the case, the precise sum, date, magnitude, or extent is immaterial, (p) ♦CHAPTER THE THIRD. *804 OF WRITTEN EVIDENCE. SECT. I. Of the Proof and Effect of—\. Public Documents. — 2. Private Documents. 1st. Of the proof and effect of public documents. Acts of parliament Public are either public or private. The printed statute-book is evidence of a dotiuments. public statute, not as an authentic copy of the record itself, but as hints of that which is supposed to be lodged in every man's mind already. (a) A private act of parliament is usually proved by a copy examined with Statutes, the parliament roll.(i) A private act may contain clauses of a public nature, and then the act, as faf as those are concerned, is to be regarded as a public act. Thus, a clause relating to a public highway, occurring in a private inclosure act, has been holden proveable in the same way as a public act.(c) In some acts of parliament not relating to the king- dom at large, a special clause is often in.serted declaring them to be public acts, and that they shall be taken notice of as such, without being specially pleaded ; in which case they are to be proved in the same manner as public acts; it is not necessary to prove them by an examined copy, or to show that the printed copy was printed by the Queen's (m) Rex V. Forsjth, Russ. k Ry. C. C. R. 274. (n) 2 Saund. 291, c. in note (1) to Dakin's case. (o) 1 riiill. Hv. 21.'^, (h), 7th ed. \p) Ibid. 1 Stark. Ev. 454. Rex v. Gillham, 6 T. R. 265. (a) Gilb. Ev. 10. 2 Phill. Ev. 127, 128. (i) Bull. N. P. 225. (c) Rex V. Utterby, 2 Phill. Ev. US, per Holroyd, J.. And see Hob. 227. * Eng. Com. Law Reps. -xxv. 183. 804 OF EVIDENCE. [book VI. printer.(^) The clause referred to was intended for the facility of proof; it will not give the act the effect of a public act for other purposes, as with regard to the recital of facts contained in it.(t') A clause was often formerly inserted in private acts, providing that they shall be printed by the king's printer, and that a copy so printed shall be admitted as evi- dence of the act. In such cases a copy, purporting to be printed by the king's printer will be admissible in evidence: it is not necessary to prove that the act was purchased at the king's printer. (/) By the 41 Geo. 3, c. 90, s. 9, *copics of the statutes of Great Britain and Ireland prior to the Union, printed by the printer duly authorized, shall be received as conclusive evidence of the several statutes in the courts of either king- dom, (e) The preamble of an act of parliament, reciting that certain outrages had been committed in particular parts of the kingdom, was adjudged by the Court of K. B. to be admissible in evidence, for the purpose of proving an introductory averment in an information for a libel, that out- rages of that description had existed. (^) The journals of the House of Lords or of the House of Commons are evidence in criminal cases as well as civil, and may be proved by ex- amined copies; but the printed journals are not evidence. (^) An un- stamped copy of the minutes of the reversal of a judgment in the House of Lords, without more of the proceedings, is evidence of the re- versal. (/i)f The public acts of government, and acts by the king in his political capacity, are commonly announced in the Gazette, published by the authority of the crown ; and of such acts announced to the public in the Gazette, the Gazette is admitted in courts of justice to be good evi- dence. (?') A proclamation for reprisals published in the Gazette, is evi- dence of an existing war.(y) Proclamations for a public peace, or for the performance of a quarantine, and any act done by or to the king in his regal character, may be proved in this manner ; and upon the same principle, articles of war, purporting to be printed by the king's printer, are allowed to be evidence of such articles. (A;) A Gazette, in which it was stated, that certain addresses had been presented to the king, has been adjudged to the proper evidence, to prove an averment of that fact in an information for a libel ;(?) for they are addresses, said Lord Kenyon, C. J., of different bodies of the king's subjects, received by the king in his public capacity, and they thus become acts of state. And in Rex v. ^805 Preamble proof of facts re- cited. .Tournal of the Houses of Parlia- ment. Gazette. Proclama- tion. Articles of ■war. (d) 2 Phill. Ev. 128, citing Beaumont v. Mountain,* 10 Bingh. R. 404. 1 M. & Sc. 111. Woodward v. Cotton, 1 C, M. & R. 44. 4 Tjrw. 689. (r) 2 Phill. Ev. 129, citing Brett v. Beales," M. & M. 421. (/) 2 Phill. Ev. 129, Lincoln Sum. Ass. 1632, by Park, J. A. J. Where the copy of an act is incorrect, the government will be governed by the Parliament roll. Rex v. Jeffries, 1 Str. 446. Spring v. Eve, 2 Mod. 240, and 2 Phill. Ev. 129, and the case cited there, in note (5). (c) Rose. Ev. 73. (/) Rex v. Sutton, 4 M. & S. 532. (y) Lord Melville's case, 24 How. St. Tr. 683. Rose. Ev. 73. (A) Jones v. Randall, Cowp. 17. But a resolution of either house is not evidence of the truth of the facts there affirmed; and therefore, in the case of Titus Gates, who was charged with having committed perjury on the trial of persons suspected of the popish plot, a resolu- tion in the journals of the House of Commons, asserting the existence of the plot was not allowed to be evidence of that fact. 4 St. Tr. 39. 1 Phill. Ev. 406, 7th ed., but see 2 Phill. Ev. 106, last ed. (?;) 2 Phill. Ev. 107, 108. (/) Ibid. (yfc) Ibid, and 109. (l) Rex V. Holt, 5 T. R. 436. S. C. 2 Leach, 593. f [Historical books which have been generally received as authentic are admissible as furnishing evidence of remote transactions. Commonwealth v. Alberger, 1 Wharton, 469.] * Eng. Com. Law Reps. xxv. 183. i* lb. xxii. 344. CHAP. III. § I."| OF WRITTEN EVIDENCE. 805 Forsyth, (m) the twelve judges seemed to think that the production of the Gazette, would be sufficient, without proof of its being bought of the Gazette printer, or where it came from. In Rex v. Sutton, (») the Court of King's Bench determined, that the king's proclamation, ('which Rcnital in recited, that it had been ronrcsented that certain ontrapos had been com-J*''"' '^'"''"' ' * . . s turn proot milted in different parts of certain counties, and oifered a reward for the of facts discovery and apprehension of offenders,), was admissible in evidence, ■■'''''''"^• as proof of an introductory averment in an information for a libel, that acts of outrage of that particular description had been committed in those parts of the country. ♦Records are proved either by producing the record itself, or by an *80G exemplification, or by a copy. When nul tiel record is pleaded, the Proof of record, if a record of the same court, is produced and inspected by tli<^' oi^n/j'ssue court ; if a record of an inferior court, it is proved by the tenor of the of mi/ tiel record certified under a writ of certiorari, issued by the superior court; '"'"''o'"'*- if a record of a concurrent superior court, it is proved by the tenor cer- tified under a writ of certiorari, issued out of Chancery, and transmitted thence by a writ of mittimus {p\ The issue of nul tiel record seldom occurs in criminal cases, except in the instance of a plea of autrefois acquit, &c.(^)) Wherever it is necessary to prove the finding or the trial of an indict- Where it ment, the record must be regularly drawn up, and either produced, f""^^^"^ j^*" an examined copy of it produced and proved. Where, therefore, an prove in- indictment for a conspiracy alleged that at a court of quarter sessions ^'''''"*"^^- an indictment was preferred against A. B., and found by the grand jury, the Court of King's Bench held that the indictment indorsed a true bill, but without an}^ caption to it, and the minutes made by the clerk of the peace containing the style of the sessions, and the minutes of the busi- ness done at it, were not sufficient evidence of the finding of the bill, and that the record itself or an examined copy was the only legitimate evi- dence to prove it.(y) And so it has been held that a plea of autrefois convict cannot be supported by the indictment with the finding of the grand jury upon it.(/) Where on an indictment for the non-repair of certain highways, upon the trial of which the question was, whether a parish was bound to repair all the highways in it as a parish, or the several townships the highways situate in each of them, in order to prove the conviction of the parish upon a similar indictment in 180G, a (»i) Russ. & Ry. C. C. R. 2H. Ante, p. 231. («) 4 M & S. 5.S2. \o) TiJd, 801, 804, Rose. Ev. 73. Where a record of a court of Quarter Sessions is pleaded in a court of Oyer and Terminer, or the coaverse, it ought in strictness to be proved as above stated ; but the practice, it is said, is to apply simply to the clerk of the peace, or clerk of assize, who will make it out for you without writ, or will attend with the record itself at the trial. Arch. Cr. PI. 124. [p) Upon this plea the proof of the issue lies on the defendant, and he will have to prove the record of acquittal: and also it has been said, the averments of identity in his plea. 1 Arch. O. PI. TO. But this seems doubtful, for if the replication is mil tiel record, it should seem to admit the identity. The principal decisions ref^arding the plea of aulnfoix acquit, belonging rather to the law of criminal pleading than of evidence, will be found, vol. 1, p. 829, H .seq., and ajite. p. 388, 048. (q) Rc.\ V. Smith,» 8 B. & C. 341. (r) Rc.x V. Bowman,'' G C. & P. 101. See the cases collected in note (i), vol. 1, p. 837, and Porter r. Cooper,<: ti C. & P. 354, and Re.x r. Thring,)"|" Thus, where to prove the law of France, as to mar- Proof of riagc, the French vice-consul produced a book, which he said contained '"'""'•'^^n the code of laws upon which he acted at his office; that it was printed at the office for the printing of the laws of France ; and that it would have been acted upon in any of the French courts ; it was ruled by Abbott, C. J., to be sufficient proof of the law.(f) The unwritten law (t) Kfiiiptnn V. Oro.s.s, Cas. Temp. Hardw. 107. Rose. Ev. 82. 2 Pliill. Ev. 173. (m) Elden V. Kcddel, 8 East, 187. Davis v. Williams, 13 East, 232. {v) Rex V. Haines, per Holt, Comb. 337. 12 Vin. Ab. Ev. A. 6. 26, p. 99. Rose. Ev. 80. ho) 3 East, 221. 2 Phil. Ev. 143. See also Buchanan v. Rut^kcr, 1 Camp. 63. Flindt r. Atkins, 3 Camp. 215, in a note. [wia) The G Geo. 4 c. 133, s. 7, enacting that the common seal of the society of apothe- caries of the city of London shall be received as suflicicnt proof of the authenticity of the '•(.rlificate to which sudi seal is affixed, does not make such certificate evidence without p'-oof tliat the seal affixed is the genuine seal of the society, Chadwick v. Banning^ K. & M. N. P. C. 306. (x) Cavan v. Stewart, 1 Stark. N. P. C. .'525. (»/) Alves t'. Bunbury, 4 Camp. 28. 2 Phill. Ev. 143. (z) Black V. Lord Baybrook,'' 2 Stark. N. P. C. 11, 12. (a) Appleton v. Lord Baybrookj-^ 2 Stark. N. P. C. 6, 7. G M. & S. 34. 2 Phill. Ev. 14.1. (b) Clegg V. Levy, 3 Camp. 166. Rose. Ev. 82. (r) Lancon v. Iliggins, 3 Stark. 178. t jSec 1 Stark. Ev. 163, [New cd. 196,] note (2). 2 ib. 569, notes. 2 Wend. 411, Pack- ard V. Hill. Ry. & .Mood. N. P. C. 190, National Bank, &c. v. l)e Barnales, Ace. The laws of the other States in the Union are foreign laws, in thi.-? respect. 3 Pick. 293. 9 ib. 130, 6 Connect. Rep. 489, Hempstead «. Racd. 1 Rawle, 386, Ripple v. Ripple. 5 Har. k Johns. 86, Bapiste v. De Volunbrun.} » Eng. Com. Law Reps. xxi. 447. •> Ib. iii. 218. * Ib. iii. 217. 810 or EVIDENCE. [book VI. of a foreign state may be proved by the jiarol evidence of witnesses possessing professional skill. (r/) So a person of experience in the pro- fession of the law of another country may state his opinion what, according to the law of that country, would be the legal effect of the facts previously spoken to by the witnesses, taking the facts to be ac- curate. Thus a gentleman at the Scotch bar has been allowed to state his opinion, whether a marriage, as proved by the witnesses would be valid according to the Scotch law.(e) And where, on an indictment for bigamy, it was proved that the prisoner had been married to a soldier of the name of Dent, and afterwards to one Wall, and the defence was that Dent had been legally married in Scotland, previous to his marriage with the prisoner, and a witness proved that Dent being with his rcgi. ment in Scotland, the witness, Dent, a female, and several others went to a house, to which they were directed after inquiring for the house of the clergymen of the place, where a gentleman performed a ceremony *811 *somewhat similar to the marriage service of the Church of England, between Dent and the female, and that they afterwards lived together as man and wife ; Wightman, J., held that a gentleman, who had lived in Scotland until he was twenty, and who had frequently been there since, and who was possessed of very considerable literary attainments, and stated that he was well acquainted with the law of marriage in Scotland, although he was not a lawyer, was competent to prove that the marriage in question was a valid marriage according to that law.(/) Irish judg- A judgment obtained in one of the superior courts in Ireland, since the intn . ^ Union, is not a record in England. (y) Convictions before justices of the lefore'^iiis^ peace are either produced in court, and the handwriting of the magis- tiees of the trates to them proved, (_9'i7) or they may be proved by examined copies, jpoace. •which the clerk of the peace of the proper county will make out, upon hooka ^'^ application for that purpose. (7i) In many instances, public books are admitted in evidence to prove the facts recorded in them. The muster-book in the navy-office has been admitted in evidence, to prove the death of a sailor j^i) the book from the master's office in the Court of King's Bench, to prove a person one of the attorneys of that court ;(_;') and the log-book of a man-of-war, which convoyed a fleet, to prove the time of the convoy's sailing.f/i;) Bank-books are good evidence to prove the transfer of stock ;(/) and on a prosecution for a libel published con- cerning a person in his office of treasurer of a parish, an entry in a vestry-book, stating that he was elected at a vestry duly held in pur- suance of notice, has been considered sufficient evidence, to support an allegation in the indictment, that he was duly elected treasurcr.(?rt) The day-book of a public prison, containing a narrative of the transactions of the prison, has been received upon the same principle, as proof of the time of a prisoner's commitment or discharge :(n\ but it would not (d) Per Gibbs. C. C. J., Miller v. Kenrick, 4 Camp. ir,5. Rose. Er. 82. (e) Rex i\ Wakefield and others, Murray ed., p. 238. (/) Reg. V. Dent, Monmouth Spring Ass. 1843, MSS. C. S. G. See ante vol. I, p. 212. (g) Harris v. Saunders,^ 4 B. & 0. 411. ((jf/) Massey v. Johnson. 12 East, G1. Gray v. Cookson, 16 East, 1.3. M,asGD v. Barker, Gloucester Spr. Ass. 1843, Erskine.J. MSS. "C. S. C. (h) Archb. Cr. P. 126. (i) Bull. N. P. 249. Rhodes's case, 1 Leach, 24. (j) Rex V. Cropley, 2 Esp. N. P. C. 524. (k) D'lsraeli v. Jowett, 1 E.sp. N. P. C. 42'?. (I) Breton v. Cope, Peake, N. P. C. 30. Marsh v. Colonet, 2 Esp. N. P. C. 665. (to) Rex V. Martin, 2 Campb. 100. (n) Rex v. Aickles, 1 Leach, 391. »Eng. Com. Law Reps. x. 2^3. CHAP. III. § I.] OF WRITTEN EVIDENCE. 811 be admissible to prove the cause of his coininitiiu!nt.(c») So on an in- dictment for forgin<; a seaman's will, an entry in a book called the assig- nation book, in which all cases are officially entered, was admitted to prove the probate revoked. (p) So the poll-books taken at an election for members of parliament, or at an election of a mayor, arc evidence. (^) The registers of christenings, marriages, and burials, preserved in Registers, churches, are good evidence :(/•) and in order to prove the register of a marriage, it is not necessary to call the attesting witnesses ; but as the register affords no proof of the identity of the parties, some evidence of that fact must be given, as by calling the minister, clerk, or attesting witnesses, if they were acquainted with the parties; or the bell-ringers may be called to prove that they rung *the bells, and came imme- *812 diately after the marriage, and were paid by the parties ; or the hand- writing of the parties may be proved; or persons may be called who were present at the wedding dinner, &c.(.s) Whenever an original is of Proof of a public nature, and admissible in evidence, an examined copy is also J'"'^^*', admissible. (/) Thus examined copies of the entries in the council-book, examined or of a license preserved in the Secretary of State's Office,(v() of entries ''"P''-'^- in the bank-books, («') of entries in the books of the East India Compa- ny, (ir) or in the books of the commissioners of the land-tax, (.c) or of excise, (//) are allowed to be read in evidence. So an examined copy of a parish register is evidence :(z\ but not an examined copy of the register of a marriage in the Swedish ambassador's chapel in Paris. («j It seems, however, that the book of the King's Bench or Fleet prisons, which, as it has been just mentioned, are evidence of the time of a prisoner's discharge, are not such public documents, that a copy of them may be given in evidence. (i) The judicial records of the King's Court are safely kept for public In-'pcetion convenience, that any subject may have access to them for his necessary '*^'^'"' '" use and benefit ; which was the ancient law of England, and is so de- clared by an act of parliament in the 4Gth year of Edward III-(') But in the case of an acquittal on a prosecution for felony, a copy of the^^ry **'^'"' • T ^ i. X I I 1 1 . • 3 -.1 . ^ / 1 iliotinent indictment cannot be regularly obtained without an order from thcaftprac- court.('/j This rule proceeds from an *anxiety to protect prosecutors *813 (o) Salte >\ Thomas, 3 B. & P. 188. 2 Phil. Ev. 164. (p) Ramsbottom's case, 1 Leach, 25, in note. It would have been no bar to the convic- tion had the probate been unrepealed. Rex v. Buttery and another, Ru.ss. & Rv. 342. (7) Mead v. Robinson, AVille.s, 224. (r) Bull. N. P. 247. ' («) Birt i\ Barlow, Dougl, 171. Rose. Ev. 84. (t) Rose. Ev. H.i. Lynch v. Gierke, .3 Salk. 154. (k) Eyre v. Palsgrave, 2 Campb. COG. (>■) Marsh v. Colnett, 2 Esp. 665. (w) Tioiigl. 5f>.3, 71. (2) Rex i\ King, 2 T. R. 234. [if) Fuller I'. Fotch, Carlh. 346. (z) Hull. N. P. 247. {n\ Leader v. Barry, 1 Esp. 353. lb) Salte V. Thomas, 3 B. k P. IDO. 2 Phill. Ev. 164. (r) 2 Phill. Ev. 174. (d) This practice originated with an order made in the 16 Car. 2, by Hyde, Chief Justice of the King's Bench ; Bridgman, Chief .Justice of the Common Pleas ; Twisden, J., Tyril, J., and Kelyng, .1., '-to be observed by the justices of the peace and others at the sessions ir. the Old Bailey,"' as follows: — " That no copies of any indictment for felony be given with- out special order, upon motion made in open court, at the general gaol delivery upon motion, for the late frequency of actions against prosecutors (which cannot be without copies of the indictments) dctcrreth people from prosecuting for the king ujiou great occa- sion?." Kel. 3. The jurisdiction of llicse judg<'s to make this order a]i]icars extremely questionable, and has been frequently doubted. iSee Browne v. Cummin,::.' 10 B. plicatiou, because » Eng. Com. Law Reps. xxi. 27. 813 OF EVIDENCE. [BOOK VI. quittiil, from being Larrassed by uufouudcd actions for malicious prosecutions, t '^^ed'' which actions cannot be maintained without proving the fact of the pro- In case of secutiou by the record or an examined copy of it, and it is therefore not felonies. usual to grant a copy of the record of acquittal, where there is any the least probable cause for the prosecution. (e) But the copy is admissible without proof of the order of the court allowing a copy of the record; for though it be the duty of the officer, charged with the custody of the records of the court, not to produce a record, or give a copy of it but upon competent authority, yet if the officer, in neglect of his duty shall have given a copy, or produces the original, the evidence in itself is In cases of unobjectionable, and must be received. (/) The rule is confined to cases meaner ^^ felony: in prosecutions for misdemeanors, the defendant is entitled Inspection to a copy of the record, as a matter of right, without a previous appli- of deposi- cation to the court. ((/) Formerly a defendant on a criminal charge was not entitled to an inspection of the grounds upon which the prosecution was instituted j(/j) and, therefore, neither in cases of treason nor of felony had he any right to a copy of the depositions of the witnesses who were to appear against him.(i) 6 & 7 Wm. But now the 6 & 7 Wm. 4, c. 114, "an act for enabling persons 4, c. 114, s. jjj^jgj.g^ of felony to make their defence by counsel or attorney," by of deposi- sec. 3, enacts " that all persons who after the passing of this act shall tions to be be l^(^\^[ to bail or committed to prison for any oflFence against the law, it was not necessary that he should grant it, declaring that by the laws of this realm every prisoner, upon his acquittal, had an undoubted right and title to a copy of the record of such acquittal, for any use he might think fit to make of it, &c. ; and that after a demand of it had been made the proper officer might be punished for refusing to make it out. In Browne v. Camming, the court expressed no opinion as to the authority of the judges to make the order, but refused to restrain the plaintiff from using a copy of an indictment alleged to have been improperly obtained, on the ground that taking all the facts together they did not think there had been a mistake or misrepresentation of such a nature as to call upon the court to interfere. The order in question, if not expressly overruled, is much shaken by Rex V. The Justices of Middlesex,* 5 B. & Ad. 1113. In that case Bowman had been tried and convicted of larceny at the Clerkenwell sessions, after that session had lapsed for want of an adjournment, and being indicted for the same offence afterwards, at the Old Bailey, he proposed to plead autrefois convict, and the court adjourned the case to give time for an application for a copy of the record; Rex v. Bowman,'' 6 C. & P. 101 ; and application was afterwards made to the clerk of the peace for a copy of the record, which was refused. And the Court of Queen's Bench granted a mandamus to make up the record of the pro- ceedings against Bowman, on the ground that " the prisoner had a right to have the record of the proceedings, which passed at sessions correctly made up, and to make any use of it he could." The report in Rex v. The .Justices of Middlesex, erroneously states the applica- tion for the mandamus to have been after the prisoner had pleaded his former conviction. See Rex v. Bowman,'' 6 C. & P. 101, and 337. This case seems to overrule Rex v. Vander- comb and Abbott, 2 Leach, 708, and Rex v. Perry ,<= 7 C. & P. 836, where the court refused to grant the prisoners copies of their indictments, in order to enable them to plead autrefois acquit, and seems to establish the position that the prisoner is entitled, as of right, to a copy of the indictment for such a purpose; and, if for such a purpose, it is difficult to see why he should not have the same right for the purpose of instituting a civil suit to seek repara- tion for the injury which he has sustained by the malicious conduct of the prosecutor. C. 5. G. (e) Tidd, 747. (/) Legatt v. Tollervey, 14 East, 302. (ff) Morrison v. Kelly, 1 Bla. Rep. 385. Evans v. Phillips, MS. Selw. N. P. 952. 2 Phil. Ev. 176. (h) 2 Phil. Ev. 178. (i) 2 Phil. Ev. 178. In some species of treason the prisoner is entitled to a copy of the indictment, ibid. Rex v. Holland, 4 T. R. 691. In that case an information had been filed against an officer of the East India Company, on charges of delinquency founded upon a re- port of a board of inquiry in India : and the Court of King's Bench were of opinion that he had no right to have an inspection of that report, and that the court had no discretionary power to grant it. * Eng. Com. Law Reps, xxvii. 281. " lb. xxv. 300. <^Ib. xxsii. 761. CHAP. III. § I.] OP WRITTEN EVIDENCE. 813 shall be entitled to require and have, on demand (from the person who allowed to shall have the lawful custody thereof, and who is hereby required toP"*°"®"" deliver the same) copies of examinations of witnesses respectively upon whose depositions they have been so held to hail, or committed to prison, on payment of a reasonable sum for the same, not exceeding three-half- pence for each folio of ninety words; provided always, that if such de- mand shall not be made before the day appointed fur the conimeiicement of the assize or sessions at which the trial of the person on whose be- half such demand shall be made is to take place, such person shall not be entitled to have any copy of such examination of witnesses, unless the judge or other person to preside at such trial, shall be of opinion that such copy may be made and delivered without delay or inconve- nience to such trial : but it shall nevertheless be competent for such judge or ether person so *to preside at such trial, if he shall think fit, *814 to postpone such trial on account of such copy of the examination of witnesses not having been previously had by the party charged." By sec. 4, " all persons under trial shall be entitled, at the time of their trial, to inspect, without fee or rewards, all depositions (or copies thereof) which have been taken against them, and returned into the court before which such trial shall be had." (7') (y) Sec. 1 of this act reciting that "it is just and reasonable that persons accused of offences against the law should be able to make their full answer and defence to all that is alleged against them," enacts that after the 1st of October, 1836, " all persons tried for felo- nies shall be admitted, after the close of the case for the prosecution, to make full answer and defence thereto, by counsel learned in the law, or by attorney in courts where attorneys practice as counsel." Sec. 2, declares and enacts, "that in all cases of summary conviction, persons accused shall be admitted to make their full answer and defence, and to have all witnesses examined and cross-examined by counsel or attorney." As to the practice which has prevailed since this statute passed, it has been held that a prisoner's counsel cannot be permitted to tell the jury any facts which he has heard from the prisoner, but wliich he is not in a condition to prove. If the prisoner does not employ counsel, he is at liberty to make a statement for himself, and tell his own story, which is to have such weight with th(! jury as, all circumstances considered, it is entitled to ; but if he employs counsel he must submit to the rules which have been established with respect to the conducting cases by counsel. Reg. V. Beark,* 8 C. & P. 142, Coleridge, J. And the same learned judge held that after the prisoner's counsel had addressed the jury for him, the prisoner himself was not at liberty also to address them. Reg. v. Boucher," 8 C. & P. 141. But where on an indictment for maliciously wounding the prosecutor when no other person was present, the prisoner had made a statement before the magistrate, which was not put in by the counsel for the prose- cution ; Alderson, B., permitted the i)risoner to make a statement before his counsel addressed the jury, and then his counsel addressed the jury and commented on the prisoner's state- ment, as according with the evidence, and only supjdying what was otherwise deficient in it. The learned baron said, " I think it is right that a person should have an opportunity of stating such facts as he may think material, and that his counsel should be allowed to comment on that statement, as one of the circumstances of the case. On trials for high treason the prisoner is always allowed to make his own statement after his counsel has ad- dressed the jury. It is true that the |)ri3oner's statement may often defeat the defence in- tended by his counsel, but if so the ends of justice will be furthered; besides, it is often the genuine defence of the party, and not a mere imaginary case invented by the ingenuity of counsel." Reg. )'. Malings,* 8 C. & P. 242. And at the same assizes Gurney, Bs, after con- ferring with Aklcrson, B., allowed a similar course to be adopted, but said that he thought it ought not to be drawn into a precedent; ami the prisoner read a written statement. Reg. V. Walking,'^ 8 G. & P. 24.3. The report does not state what the particular facts were in this case. But where on an indictment for child-murder the two previous cases were cited, and permission asked for the prisoner to make a statement, Patteson, J., said, " The general rule certainly ought to lie that a prisoner lb. xxxir. 371. *= lb. xxxiv. 372. Vol. II.— 53 *815 OF EVIDENCE. [bOOK VI. Rules as At a meeting of the judges after the passing of this statute for the *■" ^^^°. purpose of choosing the Spring Circuits of 1837, (Littledale, J., Bosan- after the quct, J., and Coleridge, J., being absent from indisposition,) a discuS' passing of gjQjj ^^^^ place as to some points which were thought likely to occur at ' the assizes, in consequence of the recent act for allowing prisoners in- dicted for felony to make full defence by counsel ; and the following seemed to be the course of practice which the judges present thought it would be most advisable to adopt. 1. That where a witness for the crown has made a deposition before a magistrate, he cannot, upon his cross-examination by the prisoner's counsel, be asked whether he did or did not, in his deposition, make such or such a statement, until the deposition itself has been read, in order to manifest whether such statement is or is not contained therein; and that such deposition must be read as part of the evidence of the cross-examining counsel. (/lA 2. That, after such deposition has been read, the prisoner's counsel may proceed in his cross-examination of the witness, as to any supposed contradiction or variance between the testimony of the witness in court and his former deposition; after which the counsel for the prosecution may re-examine the witness, and after the prisoner's counsel has ad- dressed the jury, will be entitled to the reply. And in case the counsel for the prisoner comments upon any supposed variance or contradiction, without having read the deposition, the court may direct it to be read, and the counsel for the prosecution will be entitled to rely upon it. 3. That the witness cannot, in cross-examination, be compelled to answer, whether he did or did not make such or such a statement before the magistrate, until after his deposition has been read, and it appears that it contains no mention of such statement. In that event the counsel for the prisoner may proceed with his cross-examination : and if the witness admits such statement to have been made, he may comment upon such omission, or upon the effect of it upon the other part of the testimony ; or if the witness denies that he made such statement, the counsel for the prisoner may then, if such statement be material to the matter in issue, call witnesses to prove that he made such statement. But in either event, the reading of the deposition is the prisoner's evi- dence, and the counsel for the prosecution will be entitled to reply. 4. If the only evidence called on the part of the prisoner, is evidence his counsel can do thcat much better than he can." The prisoner did not make any state- ment. Reg. V. Riderj^" 8 C. & P. 539. And where on an indictment for a misdemeanor in uttering base coin, a prisoner ^yished to make a statement of facts to the jury before his counsel addressed them, and it was said that Lord Denman, C. J., had allowed it to be done ; Bosanquet, J., refused to permit it, and observed that he was not informed of the circum- stances of the cases decided on this act, which he thought could only be meant to put pri- soners in the same situation in felonies as they were in before in misdemeanors, and in those cases certainly a defendant could not be allowed the privilege of two statements, one by himself, and one by his counsel. Reg. v. Burrows, 2 M. & Rob. 124. Soon after the passing of this statute a very learned judge desired it to be understood that wherever there was counsel for the prisoner the case should always be opened. Per Parke, B., in Rex v. Gascoine,'' 1 C k P. 112. The practice, however, has been sincethe statute, as before, only to open the case where the facts have some peculiarity in them, or the nature of the charge itself is such as to require an opening in order to direct the jury's attention to the particular points for their consideration ; and as the case in which the learned baron is said to have made the observation, was one of stealing and receiving stolen hay, he may, perhaps, h.ave thought that the latter charge required some explanation, under the circumstances of the case, before the evidence was adduced. C. S. G. • {k) See post, in the section, " How the credit of witnesses may be impeached." » Eng. Com. Law Reps, xxxiv. 521. i>Ib. xxxii. 729. CHAP. III. § I.] OF WRITTEN EVIDENCE. 815 to character, altbougli the counsel for the prosecution is entitled to the reply, it will be a mutter for his discretion whether he will use it or not. Cases may occur in which it may be fit and proper so to do.(/) 5. In cases of public prosecutions for felony, instituted by the crown, the law officers of the crown, and those who represent theui, are, in strictness, entitled to the reply, although no evidence is produced on the part of the prisouer.(m) *A prisoner is not entitled under the act to a copy of his own exa- *81G mination, taken before the committing magistrate, which has been re- *'a^cs do- turued with the depositions, but only to a copy of the depositions of ^jjigg^jj^jj^'" the witnesses against him.(//) This decision, observes Mr. Phillips, («») is founded on the express language of the act, which speaks of deposi- tions of witnesses, and says nothing of the examinations of prisoners. Yet it may in some cases be as necessary for the full defence of the prisoner, that he should be furnished with a copy of his own statement taken in writing before the magistrate, as it is to have a copy of the depositions, especially where a part of the case for the pro.sccution con- sists of evidence intended to disprove or contradict the prisoner's state- ment. In such a case, if it were necessary for the ends of justice, the judge, by virtue of his judicial authority, might allow the prisoner to inspect his written examination. (o) Where the prisoner was committed for receiving iron, knowing it to have been stolen, and a person, who had been committed as having stolen the iron, was admitted as a witness for the crown, Pattcson, J., allowed the prisoner's counsel to inspect the depositions which had been returned against the person charged as the thief.(p) Where a true bill was found against a prisoner for the murder of a person, on the investigation of whose death the coroner's jury returned a verdict of " wilful murder against some person or persons unknown," and the depositions taken before the coroner were in possession of the officer of the court before whom the prisoner was to be tried ; it was held that, although the coroner could not have been compelled to return the depositions under the 7 Geo. 4, c. 64, s. 4; yet the judges had power by their general authority as a court of justice, if they thought it es- sential to the interests of justice, to order a copy of them to be given to the prisoner. (^/) Where civil rights are depending, a party has a right to inspect, and In.'peetion take copies of such books, &c., as are of sl puhUc nature, wherein he has i^ooks. an interest ;(/•) but a rule for inspecting a public writing is never Never irrantcd, where the party who has them in his custody would, by pro- srantod in '^ ' ^.•',., ., „''.., criminal duciug ihem for inspection, disclose any evidence oi a criminal nature, cases. (l) Sec ante, p. 785. [r. \) 7 C. & !'.» G76. Tiie statute anil the rules as to the practice under it have been iu- scrtcil all together here, in onler that the whole may be seen at one view. C. S. G. («) Reg. V. Aylett,'' 8 C. & P. CGM, LitlleJale, J., and Parke, B. {nrt) 2 Phil. Ev. 181. (o) 8ee per Coleridge, J,, in Ejc parte Greenacre, note (y), infra. \p) Reg. V. \Valford,<: 8 C. & P. 767. The report does not slate whether these depositions were taken in tlie presence or absence of the prisoner. (7) Kx jxtrtc Greenacre,'' 8 C. & P. 32, Littledale, J., and Coleridge, J., and per Coleridge, J. "Supposing these depositions had been against some other person tried a year ago for an olfcncc witli whicii this particular prisoner liad nothing to do; yet if we had tliem, have we not authority as a court of justice, if we think it essential to the interests of justice, to order a copy of them to be given him? I think tliat we have." (r) Tidd, G47. » Eng. Cora. Law Reps, xxxii. G32. ^ lb. xxxiv. 577. <= lb. xxxiv. 62G. ^ lb. xxiiv. 280. 816 OF EVIDENCE. [bOOK VI. or expose himself to a criminal prosecution ; for it is a constant and in- variable principle that in criminal cases the party shall never be com- pelled to furnish evidence against himself.(s) 2. Of the 2dly. Of the proof of private documents. The execution of all written proof of instruments which are attested, whether under seal or not, must be ilocuments. proved by the subscribing witness, if he can be produced, and is capable of being examined. Thus, not only bonds and other deeds, but attested *817 notices to quit,(/) attested warrants to distrain, (?()* attested bills of ex- change, or promissory notes, must be proved by the attesting witness.(v) And so strictly is this rule observed, that the testimony of the attesting witness cannot be dispensed with, though an acknowledgment of the obligor himself be proved, admitting that he executed the bond,(w) or the defendant has admitted the execution in his answer to a bill in Chancery ;(a;) for though the party may acknowledge the bond, yet he may not know every circumstance attending the execution; "a fact may be known to the subscribing witness, not within the knowledge or recollection of the obligor, and he is entitled to avail himself of all the knowledge of the subscribing witness relative to the transaction. "(,y) And although it was once held that if an attesting witness had become blind, he need not be called, but it was sufficient to prove his hand- writing ;(;;) and this course was adopted in another case. (a) Yet it has since been held that a bond cannot be proved without calling the attest- ing witness, although he is blind, as he may from his recollection of the transaction, give most important evidence respecting it.(&) But where the attesting witness is dead,(c) or insane, (rZ) or infamous, (e) or has be- come interested after the execution of the deed,(/) or absent in a foreign country, or not amenable to the process of the superior courts,(f^) as where he is in Ireland, (A) or where he cannot be found after diligent inquiry,(i) evidence of the witness's handwriting is admissible, (iY)-|- In these cases the proof of the subscribing witness's handwriting is evi- dence of the execution of the instrument by the party therein named, whose signature the instrument purports to bear ; and for the purpose («) Tidd, 649. (t) Doe V. Durnford, 2 M. & S. 62. And it makes no difference that the party, upon whom the notice was served, read it and made no objection. Ibid. (u) Higgs V. Dixon,* Stark. N. P. C. 180. {v) 2 Phill. Ev. 202. \w) Abbott V. Plumbe, 1 Doug. 216. {x) Call v. Dunning, 4 East, 53. {y) By Le Blanc, J., 4 East, 53. {z) "Wood ('. Drury, 1 Lord Raym. V34, Holt, C. J., at Warwick Assizes. (a) Pedler v. Paige, 1 M. & Rob. 258, Park, J. A. J. (6) Cronk v. Frith," 9 0. & P. 197, Lord Abinger, C. B. (c) Anon. 12 Mod. 607. {d) Currie v. Child, 3 Camp. 283. (e) Jones v. Mason, 2 Stra. 833. (/) Godfrey v. Norris, 1 Stra. 34. {) Per Lord Kenyou, Gary v. Pitt, Peake Ev. App. 85. » Eng. Com. Law Reps. xxi. 242. •> lb. iii. 296. ' lb. xxii. 371. 818 OP EVIDENCE. [book VI. handwriting in question was the handwriting of the persons with whom he corresponded, the evidence was held sufficient. (g'^f So where, on an information for a libel, in order to show that certain letters were in the handwriting of the defendant, a witness proved that he had never seen the defendant write, but he had seen a number of letters, which purported to have come from him on the subject of a cause, in which he was engaged on one side, and the witness on the other side, and the witness had acted upon those letters in the course of the cause ; Lord Tenterden, C. J., held that the witness was competent to prove the defendant's handwriting. (/•) It is an established rule, that handwriting cannot be proved by com- paring the paper with any other papers acknowledged to be genuine. (s)| (^r Harrington v. Fry,» 1 Ry. & Mood. 00. (V) Rex V. Slaney,^ 5 0. & P. 213. (s) Ante, p. 393. 2 Phill. Ev. 251. f {As to the knowledge required of a witness, in order to make his testimony competent to prove another's handwriting — see 1 Pennsylv. Rep. 216, Slaymaker v. "Wilson, 3 Wend. 102, Utica Ins. Company v. Badger. 1 Hawks. 6, State v. Allen. 3 Halsted, 87, Goldsmith v. Bane, 2 Stark. Ev. 651, [new ed. 3V2,] et seq. In Hammond's case, 2 Greenleaf, 33, a witness was held competent to testify to his belief of the genuineness of handwriting, from having seen and "critically examined" writings which the party acknowledged to be his, though the witness had never seen him write, nor corresponded with him. And in Jackson v. "Woodruff & al. 9 Cowen, 140, where there was a dispute as to the iden- tity of a witness to a deed, there being several persons of the same name, a witness, in order to identify him, was allowed to compare the handwriting, subscribed as an attestation to the deed, with another writing long in his possession, and reputed to be the handwriting of a man of tlie name subscribed, though he had never seen that man write. The evidence was received without objection; and the court inclined to think it would have been admissible for tlie purpose of identity, even if it liad been objected to.} ["W'hen a witness to the signature of a firm did not know the handwriting of either mem- ber of the firm, but had presented notes to the firm, signed in the same hand, and they had l)een paid by the firm, he was held to be a competent witness, and his evidence was admited t) the jury, who were left to find whether the tirm did sign the bill in suit. Gordon v. Price, 10 Iredell, 355.] I {There is great confusion in the books, English and American, on the subject of " com- parison of hands." "When it is said, as in the text, "that handwriting cannot be proved by comparing the paper" in dispute, " with any other papers acknowledged to be genuine," — the cursory reader is liable to be misled. The proposition is true, in England, only with reference to witnesses. A witness cannot be permitted to give his opinion to the jury, whether a disputed paper is genuine or spurious, by comparing it with another acknow- ledged or proved to be genuine. But the jury are allowed to compare disputed with undis- puted signatures, &c., for the purpose of assisting their judgment respecting the genuineness of the former. 6 Mod. 1G7, Csbournet'. Hosier, Holt, 194, S. C. 1 Esp. Rep. 351, Allesbrook V. Roach. In a very recent case in the Exchequer, the count says — " Where two documents are in evidence, it is competent for the court or the jury to compare them. The rule as to the comparison of handwriting applies to witnesses, who can only compare a writing, to which they are examined, with the character impressed upon their own minds ; but that rule does not apply to the court or jury, who may compare the two documents, when they are properly in evidence." And a new trial, moved for because the jury had taken out and compared other undisputed M-ritings with that in question was refused. 1 Crompton & Jer- A-is. 47, Grififith v. Williams. The rule that a witness cannot give testimony concerning disputed handwriting merely by comparing it, by juxtaposition, with another writing acknowledged or proved to be the party's, has seldom, if ever, been violated in England. See an elaborate note on this sub- ject, 4 Esp. Rep. 273, a, (Day's ed.) 4 Car. & Paj'ne, 1, [Eng. Com. Law Reps. xix. 247.] Clermont i". Tullidge. It is said by some English writers, that " mere comparison of hands," even by a jury, " unsupported by other circumstances," is not to be received. And such is the rule adopted by several of the State courts. In M'Corkle v. Binns, 5 Biuney, 349, Tilghman, C. J., says — " After evidence has been given in support of a writing, it may be corroborated by com- paring the writing in question with other writings, concerning which there is no doubt." The same doctrine is asserted in 10 Serg. & Rawle, 110, Farmers' Bank v. Whitehill, and 1 Pennsylv. Rep. 161, Bank of Pennsylvania v. Jacobs' Adm'rs. In these two last cases, » Eng. Com. Law Reps. xxi. 388. b Id. xxv. 285. ^ ib_ ^^^i. 382. CHAP. III. § I.] OF WRITTEN EVIDENCE. 818 But upon the question respecting the identity of handwriting the jury may be allowed to take other papers, which have been proved to be the writing of the party whose haudwritiug is ■^disputed — provided they *819 are part of the proofs in the cause, — and may compare them with the disputed writing, for the purpose of forming their opinion whether the disputed writing is genuine.(/) But it is an established qualification of this rule that documents, irrelevant to the issues on the record, are not to be received in evidence at the trial, in order to enable a jury to in- stitute such a comparison. (u) Upon an indictment fur sending a threat- ening letter, there being no proof that the prisoner sent it, except from its being supposed to be in his handwriting, and the evidence of hand- writing being very slight ; Bolland, B., held that the counsel for the prosecution could not put in a document undoubtedly written by the prisoner, but unconnected "with the charge in the indictment, that the jury might inspect it, and compare it with the letter in question. (d) And it cannot be permitted to introduce writings, irrelevant to the mat- ters in issue, in order to enable a witness to institute such a compari- son. (jr) Neither can a witness be cross-examined as to other docu- ments which are not in evidence in the case. In an action on a bill of exchange against the acceptor, the defendant's witnesses swore that they believed that the acceptance was not in his handwriting, and it was held that a paper purporting to be signed by the defendant could not be laid before each of the defendant's witnesses in cross-examina- tion, in order to ask them whether they believed the signature to be that of the defendant, for the purpose of testing tlicir knowledge of his handwriting by the agreement or disagreement of their testimony on this point.(j:)f (t) 2 Phill. Ev. 256. Griffith v. Williams, 1 Cr. & J. 47. Doe d. Perry v. Newton,* 5 A. & E. 514. 1 Ner. & P. 4. Solita v. Yarrow, 1 M. & Rob. 133. Eaton v. Jervis," 8 C. & P. 273. («) 2 Phill. Ev. 256. Bromage v. Rice,' 7 C. & P. 548, Littledale J., and Patteson, J. Grif- fith v. Williams, supra. Doe d. Perry v. Newton, supra. (v) Rex V. Morgan, 1 M. & Rob. 134, note (?/-) 2 Phill. Ev. 256. (z) Griffits )'. Ivery,J 11 A. & E. 322, 3 P. & D. 179. And Lord Dcnman was of opinion that the objection would not be removed by independent proof that the paper was in fact written by the defendant. In Hughes v. Rogers, 8 JI. & W. 123, Parke, B., stated that he had acted in conformity with this decision in a case at Stafford. however, the court of Pennsylvania held that a witness may give his opinion, (by way of corroborating other evidence,) on comparison of the writing in question with other writings not disputed. In South Carolina and New Hampshire, it is held that comparison by the jury is allowable in aid of doubtful proof, but that it is not evidence per se. 2 M'Cord, 518, Administrator of Bowman *'. Pliinkett. 3 N. Hanip. R. 47, Myers v. Toscan. In Virginia, it has recently been decided that even the jury shall not be allowed to com- pare a genuine with a disputed paper, in any case. 1 Leigh, 216, Rowt's Administratrix v. Kile's Administrator. See also 6 Randolph, 316, Bedford's Administrator v. Peggy. In Massachusetts, the English rule, as above stated, has been ado])ted. 11 ^lass. R. 309, Homer v. Wullis. The evl lb. xix. 540. 821 OF EVIDENCE. [BOOK VI. for the purpose of proving usury. (?) So where a petition having been presented to the House of Commons against the return of a member on the ground of bribery, the petitioner entered into an agreement in con- sideration of a sum of money, and upon other terms, to proceed no further with the petition, it was held that the written agreement was admissible in evidence for the purpose of insisting on the illegality of the transaction, in answer to an action for the sum so agreed to be paid, without its being stamped. ("j/i) So where in an action for goods sold and delivered the plaintiff's case was, that the defendant had received them from a person who had fraudulently obtained them from the plaintiff by a check drawn on a party who would dishonour the check, it was held that the check was admissible in support of this case, though not duly stamped ; for if it be necessary in a civil action to show that there has been a felony, or an obtaining by false pretences, the same evidence is admissible as if the case were that of an indictment for felony or fraud ; and it was clear that if the party who drew the check had been indicted the check would have been admissible. («) *822 In a recent case Lord Abinger, C. B., pointed out the distinction in The cor- these cases as follows : — " The stamp act for the sake of the *revenue tinction in ^^^ intended to exclude the reception in evidence of the instruments these therein mentioned, unless stamped, whenever they are introduced for cases. jjjg purpose of making them available; that is, of setting them up and giving effect to them. Therefore, in every case where a question arises between the parties in a cause as to the evidence which may be given ; for instance, in the case of an agreement which is the subject of the action, or has some collateral relation to it, the moment it appears to be in writing, no other evidence than the written document being produci- ble, if it proves to be unstamped, it must be rejected. So with regard to promissory notes and bills of exchange, and matters which are the subject of the stamp acts, unless they are stamped when they are pro- duced, they must be rejected, wherever they are produced, to show that they have, or ever had, any validity. But the case is different when the purpose is not to give them effect, but to defeat them, and to show that they were entered into for the purpose of fraud and conspiracy. Thus, if there were a conspiracy, and the parties intended, inter se, to take certain measures to gain an advantage from an agreement, although it be not stamped, it is received in evidence to show a guilty mind. There it is used not with a view to set it up, but to show that it was absolutely void, and as evidence of a fraud, and of the guilty purpose in which the parties to it were engaged. (o) Where, therefore, upon the trial of an issue whether certain goods were the property of the plaintiff or Davies, the plaintiff claimed to be entitled to the goods by virtue of a bill of sale dated the 2nd of January, 1840, from Davies, as a security for the repayment of 300/., therein stated to have been advanced at different times by the plaintiff to Davies ; the defendant alleged that the trans- action was a fraudulent one ; and the plaintiff, in order to show that it was not, proposed to give in evidence a former assignment of the same (I) Nash V. Duncomb, 1 M. & Rob. 104, Lord Tenterden, C. J. (m) Coppock V. Bower, supra. {n) Keable v. Payne,* 8 A. & E. 555. See Rex v. Parker," 2 Moo. C. C. R. 1. t C. & P 825, where it was so held. (o) Per Lord Abinger, C. B., in Williams v. Gerry, infra. » Eng. Com. Law Reps. xxxv. 454. ^ lb. xsxii. 755. CHAP. IV. § I.] OF WRITTEN EVIDENCE. 822 goods, dated the 18th of October, 1839, as a security for the sum of 180^., being a portion of the 300/., which had been tlicn advanced, on M'hich tlic word '< cancelled" was written; but this assignment was not stamped ; the Court of Exchequer hi;ld that it was not admissible in evidence without a stamp, as the object was not to show tliat the instru- ment was void in law, but to use it as evidence of a binding contract between the' parties, which they then meant to act upon, available, though not availing, and which, upon payment of the duty, W(juld have become good.(^)) And where in the case of an indietmont for feloniously setting fire to a house with intent to defraud an insurance company, a policy of insur- ance was given in evidence on the part of the prosecution, by which the prisoner's goods, in a house described in the policy, were *insured *823 against fire, and upon which a memorandum was indorsed stating, that the goods insured had been removed from the house described in the policy to another house mentioned in the memorandum. In thiv house, so mentioned in the memorandum, the prisoner was charged with hav- ing committed the felony. The policy was properly stamped, but the memorandum had no stamp ; and upon this circumstance, an objection was taken on behalf of the prisoner, that it was essentially necessary to show, in support of the charge, that there subsisted a legal eflfeetive contract ; and that, by the express provisions of the stamp acts, the memorandum in question, not being stamped, could not be given in evidence, or be good or available in any manner whatever. The point being reserved for the consideration of the twelve judges, was argued before them; and the convietion was held to be wrong. ((/) As to other points respecting the proof and eflfect of public and private documents, since they are of rare occurrence in criminal proceedings, it is thought more advisable to refer the reader to the general treatises on the law of Evidence, than to encumber this work with any notice of them. 'CHAPTER THE FOURTH. *824 OF CONFESSIONS AND ADMISSIONS. — OF EXAMINATIONS BEFORE MA- GISTRATES. — AND OF DEPOSITIONS. SECT. I. Of Confessions and Admissions. A FREE and voluntary confession of guilt made by a prisoner, whether ^;'^"'^^"^" in the course of conversation with private individuals, or under ex- cjeut for (;)) Williams v. Gerry, 10 M. & W. 296. " On the other hand, supposing that the de- foudaut had taken upun himself the onux prohaiuU, in the first instance, that the whole trans- action was a frand, I do not say that he might not have given this assignment in evidence, and shown that it originated in a frandnlent consi)iracy, and that it was merely colonrable, being intended hy and by, to be nsed for the purpose it was used for before the jury, or that the parlies were hatching up evidence from time to time, to be used only when tiic immedi- ate necessity arose, and the time came for the fraud to be practised. It might, 1 think, be evidence of such a corrupt agreement, and to show such a cons])iracy. It was, therefore, an instrument which might be evidence for the party who sought to attack it, but not for a party whose object was to support it." Per Lord Abinger, C. B. ibid. {q) Gillson's case, 2 Leach, 1007. Russ. & Ry. C. C. R. 138. Ante, p, 567. Lord Ellen- 824 OF EVIDENCE. [bOOK VI. conviction amination before a magistrate, is admissible in evidence as the liighcst proof ^"^ most satisfactory proof, because it is fairly presumed that no man aliiuiih: would make such a confession against himself, if the facts confessed were *825 not true.(a)(f ) And the highest authorities have *now estalished, that a confession, if duly made, and satisfactorily proved, is sufficient alone to warrant a conviction, without any corroborating evidence aliunde. n>y^_ borough, Mansfield, 0. J., Wood, B., Grose, J., and Heath, J., were of opinion the conviction was right. The Lord Oliicf Baron, Thompson, B., Lawrence, J., Le Blanc, J., Chambre, J., and Graham, B., were of the contrary opinion. (a) Gilb. Ev. 123. Lambe's case, 2 Leach, 552, 4th edition. Mr. J. Blackstone, and Mr. J. Foster, entertained a different opinion. (See Fost. 24.3.) The former, in the fourth volume of his Commentaries, p. 351, says, in speaking of confessions made to persons not in au- thority as magistrates : " Even in cases of felony at common law, they are the weakest and most suspicious of all testimony, very liable to be obtained by artifice, false hopes, promises of favour, or menaces, seldom remembered accurately, or reported with precision ; and in- capable in their nature of being disproved by other negative evidence." A distinction may be properly made iu the weight to be attached to confessions. If a confession be reduced into writing, either by the prisoner, or by some one else, and read over to him, and if it be clearly shown that the confession was the spontaneous and voluntary act of the prisoner, such a confession would be entitled to great consideration. But if a confession were proved by a witness, and rested upon his capability of understanding what was said by the prisoner, his competency to remember the very words used, and his fidelity and accuracy in relating them to the jury, it ought to be received with very great caution. " For," as has been well observed, (Greenleaf's Evid. 247,) "besides the danger of mistake, from the misapprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory, it should be recollected that the mind of the prisoner himself is oppressed by the calamity of his situation, and that he is often influenced by motives of hope or fear, to make an untrue confession. The zeal, too, which so generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition in the persons engaged in pursuit of evidence to rely on slight grounds of suspicion, which are ex- aggerated into sufficient proof, together with the character of persons necessarily called as witnesses in cases of secret and atrocious crime, all tend to impair the value of this kind of evidence, and sometimes lead to its rejection where, in civil actions, it would have been re- ceived. The weighty observation of Mr. J. Foster, is also to be kept in mind, that " this evidence is not in the ordinary course of things, to be disproved by that sort of negative evidence by which the proof of plain facts may be and often is confronted." Fost 243. Mr. B. Parke has on several occasions observed, that " too great weight ought not to be at- tached to evidence of what a party has been supposed to have said ; as it very frequently happens, not only that the witness has misunderstood what the party has said, but that by unintentionally altering a few of the expressions really used, he gives an effect to the state- ment completely at variance with what the party really did say." Earle v. Picken,^ 5 C. & P. 542, note. So where one of two witnesses, called to prove the same statement of the prisoner to his wife, said that the words were, "keep yourself to yourself, and don't marry again ;" and the other, "keep yourself to yourself, and keep your own counsel :" Aldersou, B., said, " One of these expressions is widely different from the other. It shows how little reliance ought to be placed on such evidence." Rex r. Simons,'' 6 C. & P. 540. (b) Wheeling's case, in note 1 Leach, 311. Rex v. Eldridge, Russ. & Ry. C. C. R. 440. Rex V. Falkner, ibid. 481. In Greenleaf's Evid. 251, it is observed, " in each of the English cases usually cited in favour of the sufficiency of this evidence, there was some corroborating cir- cumstances. Wheeling's case, seems to be an exception, but it is too briefly reported to be relied ou. In the United States the prisoner's confession, when the corpus delicfi is not other- wise proved, has been held insufficient for his conviction ; and this opinion certainly best ac- •j- {In a prosecution for bigamy, the confession of the defendant is adequate evidence of the marriage. 1 Ashmead, 272, Commonwealth v. Murtagh. See 2 Stark, Ev. 36, [New ed. 20,] 435, [New ed. 251,] 939, note (1), [New Ed. 510.] 2 Phill. Ev. 151.} [In an indictment charging a father with living in adultery with his daughter, his con- fessions that she is so are admissible in evidence. Morgan v. The State, 11 Alabama, 289. Upon the trial of one for murder, it is not competent to prove the declarations of a third person, tending to the conclusion that he was guilty of the murder and not the prisoner, as evidence in exculpation of the prisoner. If such third person examined as a witness, had implicated the prisoner by his testimony, it might have been received for the purpose of dis- crediting him, but was not competent testimony to establish the innocence of the prisoner, by fixing the crime upon the declarant. Smith v. The State, 9 Alabama, 990.] J [A prisoner may be convicted on his own confession, uncorroborated, provided the '■ Eng Com. La w Reps. xxiv. 448. i" lb. xxv. 532. CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. *826 But a confession, in order to be admissible, must be free and volun- Must be tary : that is, luust not be extracted by any sort of threats or violence, yo'luniary. cords with the humanity of the criminal code, and with the great degree of caution applied in receiving and weighing tlie evidence of confessions in oilier cases, and it seems counte- nanced by approved writers on this branch of the law," citing (luild's case, 5 Halst. 1G3, 185. Long's case, 1 Hayw. 521, (455). 2 Hawk. P. C. c. 45, s. .30. The whole statement in 1 Leach, 311, of Wheeling's case, is that '■ it was determined that a prisoner may be convicted on his own confession, when proved by legal tesliniony, althuugh it is totally uncorrobo- rated by any other evidence." This statement may mean that where the commission of a felony is proved by independent evidence, a prisoner may Ite convicted on his confession, though there be nothing to corroborate that confession as to his being the party who com- mitted such felony ; and the manner in which Wheeling's case is introduced rather leads to the inference that that is the meaning of the statement. In Re.v v. Kldridge, on an indict- ment for stealing a mare, it appeared that the mare was seen on the 9th of October, in the afternoon, in the possession of one of the prosecutor's servants, who was taking it towards one of his fields, but neither that servant nor the prosecutor were called as witnes- ses; the mare was not found in the prosecutor's possession on the 11th of October. The prisoner had the mare in his possession on the 13th, and sold her under her value. A full confession before the magistrate was proved, and the prisoner convicted. The judges held " that tliere was sufficient evidence to confirm the confession." It is to be observed, that independently of the confession, the case was complete, with the excejition of proving that the marc was put in the prosecutor's field by his servant. See Rex v. Vend,* 6 C. & P. 176, ante, p. 122, and ilex v. Fellows, ante, p. 123. In Hex. v. Falkner and Bond, on an indict- ment for robbing one Halliday, he was called on his recognizances but did not appear, and the prisoner, Falkner, had been desirous to send a message to Halliday to keep him from appearing. The only other evidence was that Bond had confessed the offence to the con- stable who api)rehended him, and that both the prisoners, on hearing the depositions read over to them, which contained the charge, had admitted that they were guilty ; the depo- sitions charged the prisoners with robbing Halliday of certain quantities of copper. The prisoner was found guilty, and the judges held the conviction right, but no reason is stated for the decision. If the depositions were read in evidence al the trial, as they might be if the prosecutor was kept away by means of the prisoners, the case does not seem in any de- gree to support the jmsition in the text. In Rex v. White & Langdon, Russ. & Ry. 508, on an indictment for stealing oats, the prosecutor proved that he had sometimes more, some- times less than 300 c[uarts of oats in his granary, the door of which had been fastened with a padlock, and was tbund by the prosecutor unhinged and drawn back, on the 24th of De- cember. At half past two o'clock that morning, two men were seen by a witness coming from the ])rosecutor's yard, each of them having a sack on his back, but the witness did not say that the men were the prisoners. White on the same day was in jjossession of some bags of oats, of the same kind as those in the granary of the prosecutor, who could not, however, swear that he had lost anj- of his oats ; each prisoner made an explicit confession of the oti'ence, which were proved, and the prisoners found guilty ; and the judges held the conviction right. In Rex v. Tipi)ct, Russ. & Ry. 509, which was an indictment for stealing oats of the same prosecutor, the same evidence was given as in the preceding case, with the addition that the prisoner was under-ostler in the prosecutor's stiibles, and a confession by the prisoner of his having stolen the oats in company with the prisoners in the preceding case was put in, and the prisoner convicted; and seven of the kai'ned judges (all who met on the occasion) were of opinion that the conviction was right, "as there was not only the confession but the evidence of the prosecutor also, v\ liich made it probable that oats had been stolen, as it appeared from such evidence that the door of the granary had been broken open, and most of the learned judges thought that, without the owner's evidence, the jiri- soner's confession was evidence upon which the jury might have convicted." In Rex v. Tuffs,'' 5 C. & P. 1G7, the prisoner was indicted for stealing two heifers, which were not missed by the prosecutor or any other person in his service, and the only evidence against (he prisoner was his own statement, when questioned on the subject, that he had driven away two heifers from his uncle's premises, "The World's End Uolver,'' the prosecutor and another person proved that the prosecutor's farm was called by that name, but they could not undertake to say that there was not any other of that name ; Lord Lyndhurst, upon corpus delicti be proved. State r. Guild, 5 Ilalsted, 1C3. And see Rose. Dig. Cr. Ev. 29, n. An admission by a defendant in a criminal case, is strong evidence of guilt — but it is not conclusive. He may show that it originated in mistake, or explain it by circumstances. A confession, unless it be an admission by plea, is merely evidence to be determined by a jury. The Slate v. Welch, 7 Porter, 4G3. If a party indicted for wilfully giving in a vote at an election, knowing himself not to be a qualified voter, admits, on his trial, that he voted at the election, it is equivalent to an admission that he voted wilfully. Commonwealth v. Bradford, 9 Metcalf, 2G8.] » Eng. Com. Law Reps. xxv. 341. *• lb. xxiv. 359. 826 OF EVIDENCE. [BOOK VI. nor obtained bj amj direct or implied promises, however slight, nor by the exertion of any improper influence. (t:) <' The object of the rule relating to the exclusion of confessions is to exclude all confessions which may have been procured by the prisoner being led to suppose that it will be better for him to admit himself to be guilty of an offence, which he really never committed. "((?) In deter- mining, therefore, whether a confession be admissible or not, " the only proper question is, Avhcther the inducement held out to the prisoner was calculated to make his confession an untrue one."(6') A confession can never be received in evidence, where the prisoner has been influenced by any threat or promise; for the law cannot mea- sure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and, therefore, excludes the declaration, if any degree of influence has been exerted. (/j It is a question for the court, and not for the jury, to decide whether, under the particular circum- stances of the case, the confession be admissible. (y)f this, told the jury that under the circumstances there was not any evidence of a stealing as to the heifers of the prosecutor ; though it had been proved that this was the only " World's End Dolver," it would have been sufficient. It does not, therefore, appear that it has ever been expressly decided that the mere confession of a prisoner alone, and without any other evidence, is sufficient to warrant a conviction. In Rex v. Edgar, Monmouth, Spr. Ass. 1831, MSS. C. S. G., the prisoner was indicted for obtaining monej' of a friendly society by false pretences ; the rules of the society had not been enrolled, but the prisoner, who was a mem- ber of the society, had acted under them, and it was contended that he had thereby admitted their validity, and the position in the text was cited as a stronger decision ; on \\ hich Pat- teson, J., said, " could a man be convicted of murder on his confession alone, without am' proof of the person being killed ? I doubt whether he could." (c) It is a mistaken notion that evidence of confessions obtained by promises or threat, are to be rejected from regard to public faith. Confessions are received in evidence, or re- jected as inadmissible, under a consideration of whether they are or are not entitled to credit. A free and voluntary confession is deserving the highest credit, because it is pre- sumed to flow from the strongest sense of guilt; and therefore it is admitted as proof of the crime to which it refers ; but a confession forced from the mind by the flattery of hope, or the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to he given to it ; and therefore it is rejected. Warick- shall's case, cor. Eyre & Nares, Barons, 1 Leach, 263. Three men were tried and convicted for the murder of Mr. Harrison, of Campden, in Gloucestershire. One of them, under a promise of pardon, confessed himself guilty of the fact. The confession, therefore, was not given in evidence against him, and a few years afterwards it appeared that Mr. Harrison was alive. Ibid., note {a). (d) Per Littledale, J., in Rex v. Court,* T C. & P. 486, post, p. 846. (e) Per Coleridge, J.,,ia Rex v. Thomas,*- V C. & P. 345,^;os<, p. 845. If) 2 Stark. Ev. 36. (g) Rex V. 'Nnte, post, p. 832. It is submitted, however, that it is a question for the jury whether they believe the witness gives a true account of what the prisoner said, and also whether the prisoner made the statement voluntarily, or was prevailed upon to make it by any inducement used by the witness, although the witness may have denied that he used any inducement whatever. The editor has known these questions left to the jury on several occasions, and it is conceived that is the proper course, as they alone are the judges of the credibility of the witnesses. C. S. G. f [Confessions or disclosures, made under any threat, promise, or encouragement of any hope of favour, are inadmissible in a criminal prosecution. State v. Phelps, 11 Vermont, 116. Evidence of the confession of a criminal made to a magistrate previous to examination, on the declaration of the magistrate that it would be better for the accused to make a full con- fession, is not admissible. Oakly v. Schoonmaker, 15 Wen. 226. A confession made by a prisoner while in prison, is evidence against him, provided it be the prisoner's own act, not unduly obtained by threats or promises. State v. Jefferson, 6 Iredell, N. C. 305. The fact that a confession is made to an officer having the prisoner in custody is no rea- son for its exclusion as evidence against the prisoner, provided that it was not induced by * Bug. Com. Law Reps, xxxii 595. '■lb. xxxii. 536. CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. *827 *The general principle on which the decisions on this subject seem to have proceeded, seerasto be this : that if, under the circumstances, there be reasonable ground for presuming that the disclosure was made under the influence of any promise or threat of a temporal nature, the evidence ought not to be received. (,7) As to what shall be considered as a promise, or inducement, saying Pminiscs to the prisoner that it would be better for him if he did confess, is "'"^ '"'^"*^''" sufficient to exclude the confession. (A) So a confession induced by say- ing, "I am in great distress about my irons; if you will tell me where they arc, I will bo favourable to you," cannot be given in evidence. (/) Where the prosecutor asked the prisoner, on finding him, for the money (.^igg^ he, the prisoner, had taken out of the prosecutor's pack, but before the money was produced said, " he only wanted his money, and if the pri- soner gave him that, he might go to the devil if he pleased;" upon which the prisoner took lis. G}/!. out of his pocket, and said it was all he had left of it ; a majority of the judges held, that the evidence was inadmissi- ble. (7) So, where a prisoner being in custody, said to the officer who Confession had the charge of him, " If you will give me a glass of gin, I will tell you ^y prisoner all about it, and two glasses of gin were given to him, and he made a druuk. confession of hisguilt. Best, J., considered it as very improperly obtained, and inadmissible in evidence. f/i.-) But where a prisoner made a state- (ff) 2 Stark. Ev. 36. (A) 2 East, P. C. c. 16, s. 94, p. 659. {2 Overton, 86. State v. Doherty. 1 Ilayw. (N. C.) Rep. 482, State v. Moore, h Ilalstcd, HJ'.i. State v. Guild.} (i) Cass's case, 1 Leach, 293, note (a). (J) Jones's case, Rti.'^s. & Hy. C. C. R. 162, but see Rex v. Griffin, ibid. 151, po.^(, 86.3. (A;) Rex v. Sexton, MS. Clietw. Burn. tit. Confession,, p. 1086, Doyl. & Wms. The authority of this case has been questioned in several books. Deac. Cr. Law, 424, Rose. Cr. Evid. 37, improper advantages taken of the situation in which he stood. Commonwealth v. Hosier, 4 Barr, 264. Where the confession of a prisoner is offered in evidence in connection with some induce- ment held out to him to make it, if the confession is not so connected with the inducement as to be a consequence of it, it is to be considered as voluntary and of course admissible. The State v. Potter, 18 Conn. 166. When a magistrate on the examination of a prisoner accused of robbing an individual of a watch on the previous night, and on whom the watch was found, told him " that unless he could account for the manner in which he became possessed of the watch, he should be obliged to commit him to bo tried for stealing," this did not amount to such a threat or in- fluence as would prevent the introduction of the subsequent confession of the accused, espe- cially as the magistrate repeatedly warned him not to conunit himself by any confession. State V. Cowan, 7 Iredell, N. C. 239. A confession obtained by temporal inducement, by threat, or liy a jiromise or hope of par- don, having some reference to the party's escape from the charge, held out by a person in authority, is inadmissible. A master or mistress is considered as a person in authority, as well as a magistrate, shcrifT, or constable. However slight the promise or threat may have been, the confession cannot be received. State v. Bostick, 4 Harrington, 564. The examination by a committing magistrate of a prisoner under oath as to the subject- matter of liis oflence, is sullicient, it seems, to render inadmissible evidence thus elicited. Commonwealth v. Ilarmnn, 4 Harr. 2(j9. When a prisoner charged with liomicide was taken before a committing magistrate, and there sworn to tell tiie truth, and told "If you do not tell the truth I will commit you ;" a confession thus exacted is inadmissible as evidence against the prisoner on the trial. Com- monwealth i<. J/arman, 4 Barr, 269. When a prisoner's confession is unduly obtained, any subsequent confession given on its basis is inadmissible. Commonwealth v. Ilarman, 4 Barr, 269. An officer, who had a prisoner in charge told him he had better tell him all about the matter; and if he would, he would not appear against him; and tliat the prisoner liad better turn States evidence ; whereupon the i)risoner made a full confession to the officer. Held that the confession so olitainiMl could not be given in evidence against tlie j)risoner, and that the proper time of objection was before tlie officer had given his testimony, and not during the instruction of the jury. Cowley v. The Slate, 12 Missouri, 462.] 827 OF EVIDENCE. [bOOK VI. ment to a constable in whose custody he was, but he was drunk at the time; and it was imputed that the constable had given him liquor to cause him to be so, and it was objected that what the prisoner said under such circumstances was not admissible : Coldridge, J., said, " I am of opinion, that a statement being made by a prisoner while he was drunk, is not, therefore, inadmissible against him; and that to render a confession inadmissible, it must either be obtained by hope or fear. This is matter of observation for me, upon the weight that ought to attach to this statement when it is considered by the jury."(^) *828 *Where, on an indictment for robbery, a witness stated that he had Promises said to One of the prisoners, " You had better split and not suffer for ''"'^'°'^"'^®" all of them," the statement of the prisoner was rejected. (m) So where a person said to the prisoner in the police barracks, '< If any other per- son had to do in the case, it is better you should tell ;" the statement there made by the prisoner was rejected. (ti) So where on an indict- ment for larceny, a witness proved that he said to the prisoner, " It would have been better if you had told at first ;" the statement of the prisoner was rejected ; Gurncy, B., saying that is an inducement. It amounts to this, that if it would have been better then it would be better now. I think it hardly safe to admit the evidence after that."(o) Mills'scase. Where a constable, whilst he had a prisoner in custody, on a charge of larceny, asked him whether he had committed the felony, which he denied, and then said, " It is of no use for you to deny it, for there is the man and boy who will swear that they saw you do it;" Gurney, B., held, that this was an inducement to say something, and, therefore, what Kingston's the prisoner said was not admissible. (j)) So where on an indictment for ^**^' administering arsenic, it appeared that the surgeon who was called in saw the prisoner, and said to her, " You are under a suspicion of this, Joj', 17, and, it seems, very justly. In the first place, the offer to confess was volunteered on the part of the prisoner; secondly, there was no promise or threat at all used by the constable, nor was the prisoner in any way led to believe that by confessing he would escape from the charge, or be let out of custody ; thirdly, there was no inducement to state anything but the truth. In 1 Burn's J. Doyl. & Wms. 1081, note (a), it is said, "the authority of this decision seems doubtful ; for it is not every hope of favour held out to a prisoner that will render a confession afterwards made inadmissible ; the promise must have some refer- ence to his escape from the charge." {I) Rex V. Spilsbury,* 7 C. & P. 187. In a note to this case, 1 Phill. Ev. 465, it is observed, " The facts of the case as reported do not warrant the marginal note, which is as follows : — ' Semble, if a constable give him (the prisoner) liquor to make him drunk, in the hope of his saying something, that will not render the statements inadmissible, but it will be matter of observation for the judge in his summing up.' It is not to be inferred from the case that a confession — so immorally, not to say criminallj'', extorted — would be received." The prin- ciple, however, on which the decision turned, would seem to warrant the marginal note, as the mere giving of liquor, without any inducement in words, could not operate as an induce- ment either by exciting hope of escape or fear of punishment. It is to be observed, also, that in all the cases where confessions have been excluded, there has been an anticipation of benefit or injury affcr the confessing or non-confessing. Where liquor is given, the benefit (if it can be called any) is received already, and nothing further is in expectation. C. S. G. [m] Rex V. Thomas,*" 6 C. & P. 35,"?, Patteson, J. By such a statement as that made by the witness tlie prisoner mi;/ht be induced to suppose that he would be more mercifully dealt with if he confessed, and that he might therefore he induced to confess himself guilty of an offence he never committed. See reporter's note, ibid. (n) Moody's case, 2 Crawf & D. C. Jov, 12. (o) Rex v. Walkley,<= 6 C. & P. 175. (p) Rex V. Mills,'' 6 C. & P. 146, and MSS. C. G. S. "These words seem to have been construed by the learned judge as the same in effect as if the constable had said, it will be better for you to confess it, for we can prove it whether you do or not." Joy, 7. » Eug. Com. Law Reps, xxxii. 487. b Jb. xxv. 435. <^ lb. xxv. 340. <> lb. xxv. 324. CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 828 and you had better tell all you know," it was held that a .statement made after this to the surgeon was inadmissible. ((^) So whore it ap- Partridge's peared, on an indictment for larceny, that (he prisoner, being in the *'''^''' custody of a constable, the latter said to the prosecutor, '< You must not use any threat or promise to the prisoner ;" and immediately after this, the prosecutor said to the prisoner, "I should be obliged to you if you would tell us what you know about it ; if you will not, we, of course, can do nothing ; I shall be glad if you will." The confession was held inadmissible; Pattcson, J., saying, "I think this is a distinct promise; what could the prosecutor mean by saying, that if the prisoner would not tell, they could do nothing, but that if the prisoner did tell, they would do something for him."(r) *If an inducement be held out to one prisoner to make a statement *829 which implicates another prisoner, such statement is inadmissible; forTnduoo- it can only be used as evidence against the prisoner who made it, and l""",^ *"'. 1 • • 1 I'll -1 TT • implicate then it is evidence obtained hy an inducement. Upon an indictment for another murder, against a man and woman, it appears that a woman who was r"^""*^""- placed by the constable with the female prisoner, whilst he went to the inquest, to prevent her laying violent hands upon herself, and to pre- vent her from going away, told her to the effect that "she had better tell the truth, or it would lie upon her, and the man would go free." Parke, J., (after consulting Taunton, J.,) said, "As this declaration of the female prisoner can only legitimately be received in evidence to affect her and no one else, we think that it is not receivable, as it was made after an inducement held out by a person who had her in custody. If it were to be used at all, it could only be used to criminate her; and then it would be evidence obtained to criminate her by means of an in- duceracnt."(s) Where a constable, who apprehended a prisoner for stealing a brass Shepherd's tap, asked him what he had done with the tap he had stolen from the '^^^'^' prosecutor's premises, and said, " You had bettor not add a lie to the crime of theft," and desired him to go with another constable, and show him where he put the tap; Graselee, J., after expressing some doubt, refused to receive a confession made to the constable who had addressed these observations to the prisoner. (<) (y) Rex ('. Kingston,* 4 C. & P. 398. Parke, J., after consulting Liltlcdale, J. (»•) Re.K i\ Partridge,"" 7 C. & P. 551. Dr. Grecnlcaf Evid. 25G, after citing this case, and Guild's cuso, post p. 838, observes, "It i.s extremely difficult to reconcile these and similar cases with the spirit of the rule as expounded by Eyre, ('. B., in Waricit-shall's case, ante, p. 8'20, note (c),the difference is between confessions made voluntarily, and tiiosc "/orccrf from the mind by the flattery of liope, or by the torture of fear." If the jiarty has made his own calculation of the advantages to be derived from confessing, and thereupon has con- fessed the crime, there is no reason to say that it is not a voluntary confession. It seems tiiat in order to exclude a confession, the motive of hope or fear must be directly applied by a third person, and must be sudicient, in the judgment of the court, so far to overcome the mind of the prisoner as to render the confession unworthy of credit." In Rex v. Green,* fi C..& P. G55, Taunton, J., said, "I take it no man ever makes a confession without pro- posing to himself, in hi.s own mind, some advantage to be derived from it," a?ite, p. 847. (.s) Rex I'. Knock,"' 5 C. & P. 539. It does not appear to Jiavc been noticed, cither by the counsel or by the court, that this was an inducement to tcU (he truth. Sec post, p. 8■^G. (() Rex V. Shepherd,^ 7 C. & P. 579. l\Ir. Joy, p. 8, observes; that "the manner in which these words were used may have been considered by the learned judge, who saw and heard the witness, to be of a threatening nature, and .calculated to lead the prisoner untrult/ to confess himself guilty: or the words may have been deemed in effect the same, as if the constable had said, 'you have committed a theft, it will l)e better lor you not to deny it — that is to confess.' The words, viewed in this liglit, imply an inducement rather than a » Eng. Cora. Law Reps. xix. 334. " lb. xxxii. 627. •= lb. xxv. 581. ' lb. xxiv. 446. • lb. xxxii. 039. Vol. II. — 54 829 Drew's case. OF EVIDENCE. [book VI. If a prisoner be told that what he says would be used for him or against him, at his trial, his statement is inadmissible. A prisoner, when before a magistrate, was told by the magistrate's clerk not to say any- thing to prejudice himself, "as what he said, would be taken down, and would be used for him or against him at his trial." Coleridge, J., «« This is an inducement, and it was held out by a person in authority. I am of opinion, that the prisoners statement cannot be given in evi- dence. I cannot conceive a more direct inducement to a man to make a confession than telling him what he says may be used in his favour at the trial."(M) *A confession made by the prisoner with a view and under the hope of being thereby permitted to turn king's evidence, has been held inad- missible. In a trial for burglary, a witness was called to prove that one prisoner had desired him to apply to the justice to admit him as a witness for the crown ; for that he had not •entered the house, but had only stood at the door, while the other prisoners went up stairs to com- mit the felony ; it was objected, that as this confession was made with a view and under the hope of being thereby permitted to turn king's evidence, it was not admissible; and Adair, Serjt. being of opinion that this was not a voluntary confession, the evidence was rejected. (v] On an indictment for murder, it appeared that the prisoner was taken into custody on the charge, on the 2nd of December, and that on the 11th he made certain statements, which were sought to be given in evidence. To prove one of these statements, a policeman was called, who said that he held out no inducement to the prisoner to make any statement, nor did he know that any one else had, down to the 11th of December, when the statement was made ; but on the 6th of December, he knew that a reward of 100?., had been offered by the government, accompanied by a statement, that the Secretary of State would recommend an accom- plice, not being the person who actually committed the murder, for a pardon, but the witness could not state that this had come to the know- ledge of the prisoner; and Cresswell, J., allowed this statement to be given in evidence. In a latter part of the same case a policeman stated, that soon after the prisoner had been taken into custody, and before the 6th of December the prisoner requested that he would let him know if any reward should be offered, or any paper published concerning the threat." " This case has been controverted," Joy, 8 note (a), but it is not stated npon what occasion. It is difficult to see how the observations of the constable could induce the pri- soner to state what was false, especially' as he desired the prisoner to go and show where he had put the tap ; and, therefore, the case seems at variance with Rex v. Court, post, p. 846, which seems to have proceeded on the correct principle, namely, that a confession is admis- sible unless it has been obtained by the prisoner being induced to suppose that it will be belter for him to admit himself guiltv of an offence which he really never committed. C. S. G. (u) Ecg. V. Drew,* 8 C. & P. 140. In the " Law Magazine," Vol. 27, p. 340, it is remarked, that the ground of this decision probably was, that "the mind of man, especially the mind of a prisoner, is more prone to hope than fear." If the prisoner had been told merely that what he had said would be used for him at his trial, it would clearly have been an improper inducement to make a statement ; and it should seem that it is no less an improper induce- ment to tell the prisoner that his statement would be used for or against him, because he would naturally make such a statement under the influence of those words as he conceived would be beneficial to him upon his trial. C. S. G. (v) Hall's case, in note to Lambe's case, 2 Leach, 559. But where a person had been admitted king's evidence, and confessed, and upon the trial of his accomplices, refused to give evidence, he was convicted upon his own confession. Rex v. Burley, 2 Stark. Ev. 13. * Eng. Com. Law. Reps, xxxiv. 327. *830 Confes- iions with a view to being ad- mitted as a witness, and receiv- ing a par- don. Boswell's case. Statements made after a reward and pardon ofl'ered by| the Secre- tary of State re- jected, it appear- ing that they were produced therebv. CHAP. IV. § I.] OP CONFESSIONS AND ADMISSIONS. 830 murder, and that lie would bring any such papers to him as soon as they were printed. On the Gth of December, it was generally known that the Secretary of State had offered a reward and a promise of free par- don to any of the offenders, except such as had struck the blow, and on the 13th^ the witness gave the prisoner one of the printed handbills, which offered 100/. reward to any person, who should give such infor- mation as should load to the discovery and conviction of the murderers, and "A pardon to an accomplice, not being the person who actually committed the murder, who shall give such information as shall lead to the same result," Cresswell, J., after consulting Patteson, J., held that a statement made by the prisoner to the witness on the 11th of Decem- ber was receivable. In a still later part of the same case, it appeared that on the evening of the 10th of December, the prisoner said that he saw no reason why he should suffer for the crime of another, and as government had oft'ered a free pardon to any one of the parties concerned who had not struck the blow, he would tell all he knew about the mat- ter. Cresswell, J., — " It now appears, with sufficient clearness, that the prisoner in making the statements ascribed to him, was influenced by the hope of pardon held out by authorized parties. I shall, therefore, reject the evidence of all statements made by him after the evening of the 10th of December, *and expunge from my notes such as have already *831 been given in evidence. "(r«) The prisoner, who was indicted with several others for burglary, sent Confep?ion for a maijistrate, to tell him he had somethina; to communicate to him. '^'. °"* o 11- • -1 • prisoner The magistrate acted at the interview with great caution, and warned after the prisoner not to say anything that would criminate himself, as what "no'h^r he said would be taken down in writing, and made use of against him ailmitted on his trial. The prisoner replied he did not care, as he knew that the Q"/^'(n's witness knew all. Upon cross-examination, it appeared that the priso-n),'j|after a ner had been confined, after his arrest, in the same cell with another caution person, charged with the same crime, who had confessed and been ad- ,un°\g''tra(e mitted Queen's evidence ; the prisoner was aware of this, and it was to that he alluded, when he said that the witness knew all ; and that it was from the statement made by the person who had been admitted Queen's evidence, that the prisoner was examined, and his confession taken down. It was insisted, that under these circumstances, the con- fession was not admissible, as the caution, given by the magistrate, did not appear to have had the eflect of removing from the prisoner's mind all the influences which would have invalidated the confession, and that there was a reasonable cause to lead the prisoner to believe that if he made a confession, he would be put in the same situation with the other person who had done so. Crampton, J., received the confession, ob- serving, that the magistrate stated, that as far as he knew, the prisoner came forward voluntarily; that a mere formal caution from a magistrate would not be sufficient to .set up a confession, if it appeared that such confession was made under the distinct imjjression of a previous pro- mise or threat, but that it did not appear that there was any previous inducement whatever. If there were any threats made use of before, or any promises held out, the distinct caution given by the magistrate, was sufficient to obviate them. It was in effect telling the prisoner, that he would get no benefit from his confession, and that he should conse- («') Reg. f.'. Boswcll,* 1 C. k Mars. 584. » Eng. Com. Law Heps. xli. 318. ces 831 OF EVIDENCE. [bOOK VI. quently dismiss from bis mind, all cxj^ectation of getting any, if any sucli ho had.(a;) Threats As to wbat shall be considered as a threat, saying to a prisoner that ud mena- jj. ^qu1(J \)q -worse for him if he did not confoss, is sufficient to exclude a confession. (^) So a conftission induced by saying, " unless you give me a more satisfactory account, I will take you before a magistrate," or(2) by saying, "That unfortunate watch bus been found, and if you do not tell me who your partner was, I will commit you to prison as soon as we get to Newcastle ; you are a damned villain, and the gallows is (iriffiiii's painted in your face,"(a) cannot be given in evidence. So where a case. prosecutrix said to her servant girl, who was in custody on a charge of *832 administering *poison to her, " Jane, now you see the effects of your wick- edness ; you will be to go from here to-morrow morning to Stourbridge to the magistrates, and not return again." The girl answered, "Sooner than I will go from here or any where else, I will tell the truth ;" and the prosecutrix said " that is what I want," and the prisoner then made a statement; it was held that the statement was inadmissible, because it was made to prevent her being taken before the magistrate. (6) Where the If the words uscd to a priiioner be such that he might consider them words used ^g .^ threat a confession is not admissible. The prisoner bcincr in cus- lire Jiinl)!'''— uous. ° tody on a charge of arson, he was told that " he ought to tell whatever was the truth, but he must be very careful, as he was sure to be com- mitted," on which he made a statement. Taunton, J., doubted whe- ther the words used might not be construed as a threat, and having consulted Littledale, J., said, " We think as the words were so ambigu ous, that they might be considered by the prisoner as a threat, the evi- dence ought not to be given. "(c) Under false Where a prisoner had been taken into custody by a constable without imprison- ,^ -^varrant and detained by him in durance for four days, and durino; his ment. . •' . . . confinement a confession was obtained under certain promises, and on the part of the prosecution it was attempted to be shown, that the con- fession was voluntary, and not made under such promises : Ilolroyd, J., said, " Even if that were so, the fact of its having been made while in unlawful citstodi/, rendered it unavailing, and there being no sufficient evidence without it, he directed an acquittal. (c?] Wright's Where the prisoner was indicted for sheep stealing, and prior to his case. examination before the magistrate, his wife volunteered a confession of amountino- ^^'^ particulars of the robbery : and on the prisoner being brought up (x) Berrigan's case, .Joy, 27. 1 Ir. Circ. Rep. 177. In this case there were similar con- fessions made by all the prisoners, under circumstances precisely similar, and they were all admitted. " It is not improbable," observes Mr. Joy, " that in this case the prisoner was induced to make the confession, by what his fellow prisoner had done, and by his having been admitted Queen's evidence, but no promise, threat or inducement was held out by any person in authority calculated to make his confession untrue." Joy, 28. (y) 2 East, P. 0. c, 16, s. 94, p. G59. {z) Thompson's case, 1 Leach, 291. (a) Raxv. Parratt,» 4 b. & P. 570, Alderson. J. [b) Rex V. Griffiths, MSS. C. S. G. Worcester Sum. Ass. 1832, Bosanquet, J. S. C. as Rex V. Richards, 5 C. & P. 318. See this case more fi.il\y,posi, p. 838. (c) Rex V. Williams, Gloucester Spr. Ass. 1832, MSS. C. 8. G. See this case, j^ost, p. 870. [d) Ackroyd's case, 1 Lew. 49. This decision has been questioned, and it has been ob- served, that "if the prisoner were to believe the apprehension unlawful, that would make him careful not to disclose anything against himself; 'if he should suppose it lawful, that also -would make him careful not to make his situation worse, nor in any respect to prejudice himself." 1 Phill. Ev. 407, and see Rex v. Thornton, post, p. 847. * Eiig. Com. Law Rcp.o. xix. 570. CHAP. IV. § I.] OP CONFESSIONS AND ADMISSIONS. 832 for examination, the magistrate told him tliat his >vife had already con- 1" a mon- fessed the whole, and that there was quite case enough against him to send a bill before a grand jury ; and then aslccd him what he had to say. The prisoner immediately confessed his guilt, and stated several facts, which had been previously deposed to by his wife. It was objected that this confession could not be received, inasmuch as the magistrate's address to the prisoner when he was broug'.it brfore him to be examined, was in the nature of a menace. ]*ut Parke, -J., overruled the objection, saying, he considered it rather as a caution. (^^A If a confession has been obtained from the prisoner, by undue means, Confe.«f-ion.s any statement afterwards made by him under the influence of that con- ™"*^^ **^*®'" fession cannot be admitted as evidence. ,,ik' unduly In the case of Rex v. Nutc,(/) the prisoner was suspected of setting •^'j'"""-"'^- fire to an outhouse ; her mistress pressed her to confess, and told her among other things, if she would repent and confess, God would forgive her, but she concealed from her that she would *not forgive herself: *833 she confessed. The next day, another person in her mistress's sight, though out of her hearing, told her, her mistress said she had confessed, and drew from her a second confession. Lord Eldon, C. J. allowed the confessions in evidence and the prisoner was convicted. The jury on having the confessions put to them, said they thought the first confes- sion made under a hope of favour here, and the second under the influ- ence of having made the first. On a case reserved, the judges held these points were not for the jury, but if Lord Eldon agreed with the jury, which he did, the confessions were not receivable; but many of them thought the expressions not calculated to raise hope of favour here, and if not, the confessions were evidence. So in Ilex v. Sexton, (//) .''pxton'B a confession had been improperly obtained, by giving the prisoner two '^^^'''' glasses of gin : the ofiicer to whom it had been made, read it over to the prisoner before the committing magistrate, who told the prisoner the offence imputed to him affected his life, and a confession might do him harm. The prisoner said, that what had been read to him was the truth, and signed the paper. Best, J., considered the second confession, as well as the first, inadmissible; and said, that had the magistrate known the oflicer had given the prisoner gin, he would, no doubt, have told the prisoner that what he had already said, could not be given in evidence against him, and that it was for him to consider, whether he would make a second confession. If the prisoner had been told this, what he afterwards said would be evidence against him : but for want of this information, he might think that he could not make his case worse than he had already made it, and under this impression might sign the confession before the magistrate. Where hopes of favour had been given, and the prisoner refused After j.ro- before the magistrate to confess, except upon conditions, ]Mr. J. I^uller J?||*J*j." observed that there must be veiy strong evidence of an explicit warning tlien- mii?t by the magistrate not to rely on any expected favour on that account, '"' ''^P'""'' and it ought most clearly to appear, that the prisoner thoroughly un i • i iession can brutal manner. I hat the wife and brother ot the prisoner were there, be re- and said to the prisoner, "What made thee go near the cabin ?" That the prisoner in answer made a statement similar in effect to the (t) Rex V. Smith, Worcester Spr. Ass. 1830, MS. C. S. G. It is to be observed, that not only was there no express caution given in this case not to rely on the promise made, but that by receiving the previous confession in evidence the magistrate treated it as if it had been properly obtained, and the prisoner might therefore well conceive that a subsequent ■confession could do him do injury, and might possibly he better for him ; and see the ruling of the same learned judge in Rex v. GlWhum, post, p. 851. (y) Rex V. Compson, Worcester Spr. Ass. 1829, MSS. C. S. G. The learned judge left it to the jury to say whether the prisoner liad sufficient warning before the justice or not. This course seems to have been erroneous. See Rex v. Nute, ante, p. 832. k) Bell's case, Joy, 11, M'Nall. Ev. 43. CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 834 one he had made before. That he used neither pi-omise nor threat to induce the prisoner to say anything. But thut he did not caution him. That it was not more than five minutes after he received the prisoner into his charge that the prisoner made the statement. That he was not aware that the overlooker had hold out any inducement. That the over- looker was not present when the statement was made. For the prisoner it was submitted that the second confession must be taken to have been made under the same influence as the first. Pattcson, J., " There ought to be strong evidence to show that the impression under which the first confession was made, was afterwards removed, before the second confession can *be received. I am of opinion, in this case, that the prisoner must be *835 considered to have made the second confession under the same influence, as he made the first; the interval of time being too short to allow of the supposition that it was the result of reflection and voluntary determina- tion ;" and the statement was rejected. (^) And so where the prisoner was indicted for stealing two hams, and Meynell'a the constable, having a search warrant, found the hams in the prisoner's ^'^''.■.°°' house, and thereupon, in the presence of one of the prosecutors, said to the ufter- the prisoner, " You had better tell all about it :" the prisoner then made P""" ^^^"^ IDQUCG— a confession ; which it was admitted could not be received in evidence, mcnt in In the afternoon of the same day another of the prosecutors went to the f'^o morn- house of the prisoner and entered into conversation with her about the °' hams, when she repeated the confession she had made to the constable in the morning, but no promise or menace was on this occasion held out to her. Taunton, .J., said, "I am clearly of opinion, that the con- fession is not receivable ; it being impossible to say that it was not induced by the promise which the constable made to her in the morn- ing."(m) So where the prisoner was indicted for stealing money, the property llowott's of Mrs. Cooper, her mistress : the money was stolen on a Monday even- O'*^*'" ^°." ^ . . *^ , ducement ing, and the prisoner being suspected, Mrs. Cooper told her on that on iho evening that she would forfj-ive her if she told the truth : on the next Monday day, Tuesday, the prisoner was taken before a magistrate, but Mrs. confession Cooper not appearing against her she was discharged and placed under "» H'o her brother's care; after that she made a statement. Mrs. Cooper did j^^^ ^;jj^_ not on the Tuesday tell the prisoner that she would not forgive her, nor out oxpreps that anything she said would be given in evidence against her ; and caution. Patteson, J., held that this statement could not be given in evidence. On the Wednesday morning Iloulton, a superintendent of police, went ' with Mrs. Cooper to the Bridewell where the prisoner was, and Uoul- ton told the prisoner, in the presence of Mrs. Cooper, that she was not bound to say anything unless she liked, and that if she had anything to say Mrs. Cooper would hear her. Houlton did not know at this time that Mrs. Cooper had promised to forgive her if she would tell her the truth, and he did not tell the prisoner that if she had anything it might be given in evidence against her. Pattcson, J., after ob.^erving that Meynell's case(/i) was the nearest to the present, added, " I think that the statement of the prisoner is not receivable in evidence. If Mrs. Cooper had not been present when the statement was made, it might have been diff"crent; but I think that as Mrs. Cooper was present, and the interval of time was only from the Monday to the Wednesday, the (I) Sherrington's case, 2 Lew. 123. (m) Meynell's case, 2 Lew. 122. (n) Supra. 835 OF EVIDENCE. [bOOK VI. impression produced by Mrs. Coojjcr's promise of forgiveness on the Monday evening must be considered as still operating on the prisoner's mind.'Yo) Cooper's Where a person in superior authority holds out an inducement to a duccment P^^isoncr'to confess, a confession made to a person in inferior authority by person is not aduiissible, especially if such person do not give the prisoner any '"^ thoi-u'°'' ^^"*'^*^'^' Upon an indictment for arson, it appeared that the com- mitting magistrate had told the prisoner that, if he would make a dis- *836 closure, he would do all that he could for *him. The prisoner, after he was committed, made a statement to the turnkey of the gaol, who had held out no inducement to him to confess, and had not given him any caution not to confess. Parke, J., " I think I ought not to receive the evidence, after what Mr. Simeon (the committing magistrate) said to the prisoner, more especially as the turnkey did not give any caution to the prisouer."(H) Confessions But although such improper inducements may have been held out to the eft^c^t^'' ^ pi'isoner, as would exclude a confession made under their influence, of induce- yet if the court, taking into consideration all the circumstances of the ments Case, should be of opinion that at the time a confession was made, such done away inducements had ceased to operate upon the mind of the prisoner, such are admis- confession will be admissible. In determining whether an inducement has ceased to operate, it will be material to consider the nature of such inducement, the time and circumstances under which it was made, the situation of the person making it, the time which has intervened be- tween the inducement and the confession, and whether there has been any caution given, and if so, whether that caution has been given gene- rally, or expressly and specifically with reference to the inducement V/hen such held out. Thus, where it appeared that the prisoner, on being taken sfble! "^^^' ^^^^ custody, had been told by a person who came to assist the consta- ble, that it would be better for him to confess, but that, on his being examined before the committing magistrate on the following day, he was frequently cautioned by the magistrate to say nothing against him- self, a confession under these circumstances Jbefore the magistrate, was held to be clearly admissible, (oo) Rosicr's Where it appeared that a constable told the prisoner he might do him- self some good by confessing; and the prisoner afterwards asked the magistrate if it would benefit him to confess ; on which the magistrate said he could not say it would, and the prisoner then declined confess- ing ; but afterwards in his way to prison, he made a confession to an- other constable ; and he confessed again in prison to another magistrate; the judges were unanimous in holding, that the confessions were admis- sible in evidence, on the ground that the magistrate's answer was suffi- (o) Reg. V. Hewitt,' 1 C. & Mars, 534. (jre) Rex V. Cooper,'' 5 C. & P. 535. The reporters observe, "If a person of inferior au- thority cautions a prisoner not to confess, after an inducement held out by a person of superior authority, it is important to consider whether a statement made by a prisoner under such circumstances would be receivable ; as it seems to be but a fair conclusion that what was said to the prisoner by the magistrate would be much more likely to operate on his mind than anything subsequently said by a constable." It may be added, that as the inferior can hare no control over the superior, it is difficult to see how any caution by the inferior could do away with the effect of the inducement by the superior, as the prisoner must be aware that the inferior could have no power to prevent the superior from carrying his promise into effect. See the ruling of Littledale, J., in Rex v. Gi\ham, post, p. 851. C. S. G. (oo) Rex V. Lingate, 1 Phill. Ev. 410. Bayley, J. * Eng. Com. Law Reps. xli. 291. i- lb. xxiv. 444. CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 830 cicnt to efface any expectation which the constable might have raised. (^)) Nor is it any objection to a confession made before a magistrate, that the prosecutor, who was present, first desired the prisoner to speak the truth, and suggested that he had better speak out, provided tl# magis- trate or his clerk innucdiately checked the prosecutor, desiring the pri- soner not to regard him, but to say what he thought proper.((/] Where upon an indictment for murder, it appeared that the prisoner *837 had sent for the coroner, desiring to make some statement; *the coro- f^'e^e's ner told him that\any confession that ho made would be pi'oduced jI^^iIpp, against him on the trial, and that no hope or promise of pardon could moni by a be held out to him, either by the government, or by any one else. Pre- '""'^''"," ,, , . . • I ? 1 1 •••11 •^"■"•o ''*i" vious to this time a magistrate had had an interview with the prisoner, removed by and had told him that if he was not the man that struck the fatal blow, " -^"^'"e- he would use all his endeavours to prevent any ill consequences from inunicaiiou falling on him, if he would disclose what he knew of the murders, and '"''o'" tl^o that there were so many persons concerned in the transaction that it ^'1™,!,"!*" would be made known by some or other of them. The magistrate wrote a letter to the Secretary of State for the Home Department, to which he received an answer, stating, that mercy could not be extended to the prisoner, for reasons that were therein mentioned; which answer he communicated to the prisoner: all this occurred before the prisoner sent for the coroner. It was objected that, although the inducement that the magistrate would interest himself with the government had been re- moved, yet there were two other inducements ; first, the hope that would arise from the personal endeavours of the magistrate ; and, secondly the fear that if the prisoner did not confess, some one else would tell before him. Littledale, J., <' I think that this declaration is clearly ad- missible. I think that the conversation with the magistrate, after he received the Secretary of State's letter, and the caution given by the coroner, must be taken to have completely put an end to all the hopes that had been held out."(/-) So where a prisoner, when before a ma- II'''^*^' gistrate, stated that he had confessed to two constables, who were then present, and did not deny what the prisoner said, in consequence of their having told him that two others had split, and that he might as well, and that, if he told all, he would be acquitted; and the magistrate told him that he need not say anything before him, unless he pleased, and that his confession would do him no good, but that he would be com- mitted to prison to take his trial; it was held that his confession, made before the magistrate, was admissible, as it could not be said to result from the same influence as his confession to the constables. (x) So where Tlryan's a prisoner, when in custody, said to a magistrate that he wished to sec *'"^^" his priest, and the priest stated that, observing that the prisoner ap- peared greatly agitated, he said to him, " the evidence at the inquest was so clear against you, there can be no doubt you are the guilty man." The prisoner then stated something to the priest, who thereujjou asked the prisoner whether he had any objection to state to the magistrate what he had stated to him ? The prisoner said he had not, and the ma- gistrate being called in, the prisoner repeated in his presence what he (p) Rex V. Rosier, 1 Phill. Ev. 411. (q) Rex v. Edwards, 1 Pbill. Ev. 411. fr) Rex V. Clewes,* 4 C. & P. 221. (s) Rex V. Howes,'' 6 C. & P. 404, Lord Denman, C. J. » Eng. Com. Law Reps. xix. 354. ■> lb. x.xv. 459. » 837 OF EVIDENCE. [bOOK VI. had stated to the priest. It was objected that this could not be admit- ted : whereupon the magistrate was recalled, and stated, that on the evening of the day, on which he had the said interview with the pri- soner, he cautioned him not to say anything to him or to the police to criminate himself. The magistrate was then allowed to state what the prisoner said to him on this occasion, which appeared to be in every respect the same as what he had stated in the previous interview. The *838 prisoner was convicted, *and eleven of the judges of Ireland held the conviction right. (<) Griffith's Where a prosecutrix said to her servant girl, who was in custody of Th*^ f ^ pi'ivate person in her house, at night, on a charge of administering taking be- poison, " Jane, now you see the effects of your wickedness ; you will fore a ma- ^q iq „q from here to-morrow mornino; to Stourbridee, to the magis- eistrate o _ r> ^ a j o done' away trates, and not return again ;" on which the girl said, " Sooner than I by actually Yyiii go from here, or any where else, I will tell the truth;" to which thithol-. ^^*^ prosecutrix answered, ''That is all I want." A statement then made was held inadmissible. On the following morning a constable came to the house, and while there, without giving her any caution, said to the girl, " My dear girl, where did you get the stuff from that you put in the tea and coffee ?" It was held that what was then said must be considered as being under the influence of what was said the night before, because she was still in the house, and still in the hopes that she might not be taken before the magistrates. The constable afterwards took her to Stourbridge, and while on the way thither she made a statement, without any caution having been given, or any in- ducement having been held out to her, and this was held admissible, because the only hope was that she should not be taken away from the house, and this must have been at an end when she was taken away by the constable. (i«) Nicb oil's Where prisoners were taken into custody on the 1st of October, and case. Ef- qj^ ^^jj^j^ ^^j i]^q prosecutor frequently told them it would be better for ducement them to confess. They were taken before a magistrate on the 3d, when done away they were told that they were not bound to say anything, but that what time?^^^ ° *^^y ^^^ ^^y would be taken down, and used against them on their trials. They each made a statement. It was contended that, as the prosecutor did not tell them it would be better to confess to him, but generally, that it would be better to confess, that the confessions to the magistrate might be produced by that inducement ; Littledale, J., " It appears to me that the examinations may be read. If I could see that the in- fluence was continuing, I should not allow them to be read, but two days elapsed between the promise and the confession. If the prisoners had gone before the magistrate the same day, I should have thought that the influence was continuing. I think it would make no difference that the promise was made by one person, but the confession to an- Guild's other." (t') And where the prisoner had been induced by promises of ease. favour to make a confession, which was for that cause excluded, but about five months afterwards, and after having been solemnly warned by two magistrates that he must expect death, and prepare to meet it, (t) Bryan's case, Joy, 13. Jebb's C. & P. C. 157. (m) Rex V. Jane Griffiths, MSS. C. S. G. S. C. but not so fully reported, Rex v. Richards,* 5 C. & P. 818, Bosanquet, J. (y) Rex V. NichoUs and Edwards, Monmouth Sp. Ass. 1830, MSS. C. S. G. » Eng. Com. Law Reps. xxiv. 338. CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 838 lie again mado a full confession, this latter confession was admitted in evidence. («') In this case, upon much consideration, the rule was stated General to be that, although an original confession may have been obtained by ''"'°' iiuprnper means, yet subsequent confessions of the same or of like facts may be admitted, if the court believes, from the length of time inter- vening, or from proper warning of the consequences of confession, or from other circumstances, that the delusive hopes or fears, under the influence of which the original confession "'was obtained, were entirely *839 dispelled. (.r) In the absence of any such circumstances the influence of the motives, proved to have been off'cred, will be presumed to con- tinue, and to have produced the confession, unless the contrary is shown by clear evidence, and the confession will therefore be rejected. (y) With regard to the persons, whose inducements will prevent the As to the admission of confessions, it should seem, that all who are encased in i"'"""""* . ' . ... ° *= wboso in- Ihc apprehension, prosecution or examination of a prisoner, are consid- iluccincnig ered as persons of such authority, that their inducements will exclude ^y"'^'''" any confession thereby obtained. f Thus an inducement held out by fujsious. the prosecutor,(^') the prosecutor's wife,(a) or his attorney, (i) or by a constable or other oflBcer,(c) or some person assisting a constable, (cA or the prosecutor(c) in the apprehension or detention of the prisoner, or by a magistrate acting in the business, (/) or other magistrate, (y) or ma- gistrate's clerk, (^/t) or by a gaoler(/J/) or chaplain of a gaol, (/;////) or by a pel-son having authority over the prisoner, as by the captain of a vessel to one of his crew,(<) or by a master or mistress to a servant, (j') or by a person having authority in the mattcr,(/r) or by a person in the presence ofone in authority vi^th his assent, whether direct or implied, (/) will be sufficient to exclude a confession made in consequence of such in- ducement. ' A person who has accompanied the prosecutor in pursuit of a pri- Person ac- soner, is a person in authority, so that his inducement will exclude a p«"ipany- confession. The prisoner when taken into custody, was told by a per- prosecutor sou, who had accompanied the prosecutor in pursuit of the prisoner, that iniiursuit. it would be better for him to confess ; but it was urged that as he was a person who had no authority to interfere, the confession was admissible. Littledale, J., "That applies to mere strangers; here the person went (w) Guild's case, 5 Halst. 163, 168, as stated Grcenl. Ev. 257. (x) Grecnl. Ev. 257, citing Guild's case, 5 Halst. 180. h/) Greenl. Ev. 257, citing Robert's case, 1 Dcvereux R. 259, 264. (z) Thompson's case, 1 Leach, 291, ante, p. 831. Cass's case, ibid. 293, note (a), ante, p. 827, and many other cases. («^Rcx V. Upchurch, R. & M. 0. C. R. 465,po.if, p. 841. {b) 1 Phill. Ev. 407. (c^Rex V. Sexton, 1 Burn's J., D. & Wms. lOSG. (rf) 1 I'liill. Ev. 407. (e) Rex V. Stacey, MSS. (\ S. (J. infra, note (m). (/) 1 Phill. Ev. 407. (,<7) Rex V. Clewes,»4 C. & P. 221, ante, p. 837. I'h) Rex V. Drew,'' 8 C. & P. 140, ante, p. 829. {hh) Rex v. Gilhain, jdo.-j^, p. 84S. (h/ih) Rex V. Gilham, xi/j'ra. (/) Rex v. Parratt,'= 4 C. & P. 570. (j) Rox r. T^prhnrch, .vij>ra. Reg. v. Taylor,*" 8 C. & P. 733. (k) 1 Phill. Ev. 407. (/) Reg. V. Taylor, supra. Rex v. Pountney,* 7 C. & P. 302. f [Where one of the company engaged in tiie apprehension of a prisoner, in the presence of the officer and the prosecutor, held out promises of benefit to him, under the influence of which he made a confession, it was held that such confession was not admissible in evi- dence. Morehcad v. The State, 9 Humphreys, 635.] » Eng. Com. Law Reps. x.xi. 354. i* lb. xxxiv. 327. <= III. xix. 532. <• lb. xixiv. 608. • lb. xxxii. 516. 839 OF EVIDENCE. [bOOK VI. with the prosecutor, and was acting with his authority and sanction." The confession was rejected. (?>i) Person " It has been argued, that a confession made upon the promises or supposed threats of a person erroneously believed by the prisoner to possess to possess 1-1 • .1 •/. auihority. authority, the person assuming to act m the capacity of an officer or magistrate, ought, upon the same principle (on which confessions to per- sons having authority are rejected) to be excluded. The principle itself would seem to include such a case; but the point is not known to have received any judicial consideration. "(?i) *810 *If a confession be obtained by means of any improper inducement Induce- ]jei(j out by a person who had no authority in the presence of a person Tuontsused- . .. ia tho pro- having authority, and with his consent, it is not admissible. And it is gouee and not uecessary that the person having such authority should express his sanction consent in words ; for if he be silent he will be presumed, as he did not of persons express his dissent, to have sanctioned the inducement. Where the in author- constable, who took the prisoner into custody, was present, and had the prisoner in custody at an inn, when a confession was procured by in- ducements held out by the inn-keeper, and the constable being present did not caution the prisoner in any way; Alderson, B., said, " I have a very strong opinion against its admissibility; but as there are opinions which I am bound to respect, opposed to my own, I think I had better receive the evidence ; and if it should become necessary, I will reserve Taylor's the point for the consideration of the judges. "(o) So where upon an indictment for setting fire to the house of R. Lyford, it appeared that case. {m) Rex V. Stacey, Monmouth Spr. Ass. 1830, MSS. C. S. G. [n) Greenl. Ev. 258. As the question turns upon the effect produced upon the mind of the prisoner, and as the effect must be the same, whether the party be an officer or not, provided the prisoner believed him to be so, it should seem that a confession under such circumstances ought not to be admitted. In considering these questions it should be remembered that every person has authority where a felony has been committed to arrest the party who committed it, ante, vol. 1, p. 539, et seq.; in this respect, therefore, a private individual and a constable stand upon the same footing, and this may be well deserving of consideration in cases where the inducement is held out in the absence of the prosecutor or an officer. If a private person, after a felony had been committed, were to tell a person not in custody that he suspected him of the felony, and that if he would confess he would let him go, but that if he would not he would apprehend him, it might, it is conceived, be well contended that a confession obtained thereby would be inadmissible, on the ground that the party had authority to apprehend, and was in effect a constable pro hue vice. After the recent cases, an inducement by a private person, it should seem, can only be considered as inopera- tive, when it is given in the presence of a person in authority, such person expressing his dissent to it, or cautioning the prisoner against trusting to it, or where it is given to a pri- soner in custody, no one having authority being present, as if a private person were to advise a prisoner in gaol through the grating to confess, or send a letter to him to the same effect. "The difficulty experienced in this matter," observes Dr. Greeuleaf, p. 259, ''seems to have arisen from the endeavour to define and settle, as a rule of law, the facts and circum- stances, which shall be deemed, in all cases, to have influenced the mind of the prisoner in making the confession. In regard to persons in authority there is not much room to doubt. Public policy, also, requires the exclusion of confessions obtained by means of inducements held out by such persons. Yet, even here, the age, experience, intelligence, and constitu- tion, both physical and mental, of prisoners are so various, and the power of performance so diiferent in the different persons promising, and under different circumstances of the pro- secution, that the rule will necessarily sometimes fail of meeting the truth of the case. But as it is thought to succeed in a large majoritj- of cases, it is wisely adopted as a rule of law applicable to them all. Promises and threats by private persons, however, not being found so uniform in their operation, perhaps may, with more propriety, be treated as mixed ques- tions of law and fact ; the principle of law that the confession must be voluntary, being strictly adhered to, and the question whether the promises or threats of the private indivi- duals who employed them Avere sufficient to overcome the mind of the prisoner, being left, in the discretion of the judge, under the circumstances of the case." C. S. G. [o) Rex V. Pountney,* 7 C. & P. 302. The prisoners were acquitted. * Eng. Com. Law Reps, xxxii. 516. CHAP. IV. § r.] OF CONFESSIONS AND ADMISSIONS. 840 on the morning of the fire, the prisoner, who was the servant of the prosecutor, was sent for into the parlour, in which Mrs. Lyford and Mr. Winders were; and that Mr. Winders, who was not a constable, or in any oflBce or authority, said to the prisoner, <«You had better tell how you did it;" and that thereupon she made an answer. Patle- son, J., « It is the opinion of the judges, that evidence of any con- fession is receivable, unless there has been some inducement held out by some person in authority; and iu this case I should have received the evidence of the statement made to Mr. AYindcr.s, if the inducement had been held out b}' him alone. But here the inducement does not *rest with him alone, because Mrs. Lyford, Avho was the wife of the "841 prosecutor and also the mistress of the prisoner, was present with Mr. Winders, and must, as she expressed no dissent, be taken to have sanc- tioned the inducement. I think, therefore, that the inducement must be taken, as if it had been held out by Mrs. Lyford, who was a person in authority over the prisoner, and that therefore the evidence is inad- missible. "(/;) On an indictment for a misdemeanor in attempting to set fire to her T'pchurch"? master's house, it appeared that the prisoner, a girl aged thirteen, was eon^ossion a domestic servant to the prosecutor, whose wife lived with him, and obtiiined took her share in the management of the house. After the attempt to '^''"'" * *®''' 11 1- 11 • . • . , ^''*°^ set lire to the house was discovered, the prisoner s mistress, in the through absence of the prosecutor, said to her, <' ^lar}-, my girl, if you are ^'^'P^s and guilty do confess; it will perhaps save your neck; you will have to go ii^ij out to prison; if William II. (another person suspected, and whom the V the prisoner had charged,) is found clear, the guilt will fall on you." She jii'c^,°aster made no answer. The mistress then said, << Pray tell me if you did :iii.l prose- it." The prisoner then confessed. It was contended on the part of ^".'"r '? '°" •11-C11 !• aJuiissiblu. the prosecution, that the wife had no authority, real or apparent, over the prisoner, so as to hold out any hope which could influence the pri- soner to make a false statement, iu order that her life might be spared, and therefore that the confession was admissible. The confession was admitted, and the question as to its admissibility reserved for the con- i^ideratiou of the judges, who thought the confession ought not to have been received. (j) On a trial for setting fire to a house, it appeared that the prisoner, a Simpson's girl about fifteen years old,"!" was a servant in the prosecutor's house, ^p,^^' and that soon after the fire was put out, Handsley, a neighbour of the fcssion of prosecutor's, said to the prisoner, "I doubt you have set this house on "■S"'' fire by the candhj between the laths." She said she did not. On the years oM. same day, Mrs. ]3owis, who lived about three hundred yards from the <^<='=«'*^'"^'^ house of the prosecutor, and who was the mother of Mrs.- Blackburn, appUc'a"/ the wife of the prosecutor, spoke to the prisoner in the prosecutor's t'^ns by tho house in the presence of Mrs. Blackburn, who was very deaf, and theF'^^,^*^*'"r > 1 1111111 tors reia- pnsoner s mother, and told her she had better confess the truth, because tions and she believed it was her that fired both tlic house and the stack, and that f''"^^- 111 111 f ^ • n 1 ■, ■, bour?, a- it would be a great deal the worse for her if .she did not confess. The mounting prisoner said she did not. On the same day the prisoner was taken be-'" il»«at» (j9) Reg. V. Taylor," 8 C. & P. 733. (q) Ren v. Upchurcb, R. & M. C. C. R. 465. -)• [Confessions fidmi.ssiblc nojninst a child between twelve and thirteen years of ng<.'. Slate V. Bostick, 4 Ilnrrington, ."ifj'i.] • Eng. Com. Law Reps, xxxiv. (JOS. 841 OF EVIDENCE. [BOOK VI. and pro- fore a magistrate at Spilsby. On the next morning, Mrs. Bowis saw tbe not ad '^ prisoner again on the road to her house. Mrs. Bowis said to the prisoner, missiblc. she should not come to her house, and told her again it was her that fired both the house and stack ; she said she did not do it. Soon after, Handsley came up and joined them, and said to the prisoner, "Don't be so bold, perhaps you will have to go to Spilsby to-morrow." Spilsby was the place where the magistrates met. lie told her that perhaps somebody will come forward to-morrow that saw you do it. She took her apron up, and held it to her face and said no more. She always denied it; and when Handsley said she might have to go to Spilsby, she denied it again. He said, " If you be guilty, go along with Mrs. *842 Bowis, and beg your master and mistress's pardon, and *get away and be better in future, and we shall not seek after you ;" and he said, ''Never mind your wages, I'll give you a few shillings out of my pocket." And Handsley also told her it would be better for her to con- fess. After he went away, Mrs. Bowis went with the prisoner to Black- burn's house, and talked to her about the fire all the way ; and after they got there, they went out of the house, and Mrs. Bowis said to the prisoner, " Now, Sarah, you lighted the bunch of matches, and put it into the thatch of the house;" before she said that, she told the prisoner that if she went to Spilsby again she would be a great deal worse off, and she said to her several times, both going along the road to tbe pro- secutor's house, and also in the house, and also when she spoke to her out of doors, that it would be a great deal better for her if she would confess, and a great deal worse for her if she did not confess. The counsel for the prisoner objected to evidence being given of what the prisoner said, on Mrs. Bowis charging her as before stated, on the ground that after these promises and threats had been held out to her, her answer could not be received unless she had a caution. For the prosecution it was contended that her answer might be received, because Plandsley was neither a constable, nor did he stand in any relation to the prosecutor; and though Mrs. Bowis was the mother of the prosecutor's wife, yet that promises and threats, made by a person standing in that situation, were not sufficient to exclude a confession. Littledalc, J., allowed the evidence to be given, but reserved the ques- tion for the opinion of the judges, whether it ought to have been received. On Mrs. Bowis saying to the prisoner, "Now, Sarah, you lighted the bundle of matches, and put it into the thatch," the prisoner said, "Yes, I did." Mrs. Bowis then told Mrs. Blackburn what had passed, and Mrs. Blackburn then came out, and then Mrs. Bowis, in the pi'esence of Mrs. Blackburn, asked the prisoner what she did it for; whether it was for anything against the family ? She said " No." Mrs. Blackburn asked if any one persuaded her to it? She said "No;" she said she had no malice. The prisoner in her defence asserted her innocence, and said that Mrs. Bowis said that if she would confess to it she should have her liberty, and she added that she did it on purpose to get her liberty, and that they frightened her to do it. The jury said they found the prisoner guilty with her own confession; but Littledalc, J., told them they must find her either guilty or not guilty, and then thoy gave a ver- dict of guilty ; and all the judges, upon a case reserved, were unanimously of opinion that the confession ought not to have been received, and that the conviction was bad.(r) (r) Rex V. Simpson, R. & M. C. C. R. 410. The grounds upon which this decision pro- CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. *843 ♦With regard to the persons whose induccracnts will not exclude a Rowo'a confession, the following cases may be mentioned : — AVliile the consta- j„j°yco. ble who apprehended the prisoner had him in custody to take him before ments by a magistrate, some of the neighbours who had nothing to do with the T'^'''*""^ "."^ apprehension, prosecution, or examination ot the prisoner, officiously ty. interfered, and admonished the prisoner to tell the truth, and consider his family, which was a large one. No answer or observation thereon was made by the constable, nor did the prisoner ansAvcr them, but he desired the constable to call upon him in an hour at the prison, which he did, and there the prisoner made a full confession, which was re- ceived in evidence, and upon a case reserved, the judges present agreed that the evidence was admissible, and the conviction right, because the advice to confess was not given or sanctioned by any person who had any concern in the business. (.s) So where the counsel for the prisoner objected to a confession before a committing magistrate, and ofiered to prove, that the wife of the constable had told the prisoner, some days before the commitment, that it would be better for him to confess, Mr. Baron Wood overruled the objection, and admitted the confession. (<) In the case of Rex v. Eliz. Gibbons,(H) whowas indicted for the mur-Gibbons's der of her bastard child, a surgeon was called to prove certain confes- '^^^'^* sions made by the prisoner to him. He stated that he had held out no threat or promise to induce her to confess; but a woman, who was present, said that she had told the prisoner she had better tell all ; and then the prisoner made certain confessions to the surgeon. It was ob- jected, that as the confession was made after an inducement held out, it could not be received in evidence; but Park, J. A. J., after consulting ceeded are not mentioned in the report, and the real import of tlic case does not apjiear to be correctly abstracted in the text books, as observes Mr. Joy, p. 9, and after abstracting the case he well observes, " that it was in the prosecutor's house, and in the presence of the prisoner's Another, and of the prisoner's mistress, a person in authority over her, and under her implied sanction, that the prisoner was told in the first instance that it -would better for her to confess. So in the conversation that immediately elicited the confession, the induce- ment was held out in the prosecutor's house, [this is an error, it was after "they went out of the house,"] and although it docs not appear distinctly whether the prosecutor or his wife were then present, [it is clearly to be infcrrei office about one o'clock. The magistrates were then sitting *at a very threat or ^^^ort distance, and continued sitting till between two and three, and till promise the business presented to them was finished ; but the prisoner was not from a boy gy^j.j-jg^ before them, because the police officer was engaged elsewhere. years old, The officer ordered the prisoner to Bridewell on his own authority, by quos- between four and five o'clock; and between five and six o'clock, he told liy a police the prisoner, that in consequence of the falsehoods the prisoner had told, oifiocr, iu aud the prevarications he had made, there was no doubt but he bad set custody the premises on fire ; and he therefore asked him if any person had iho boy been concerned with him, or induced him to do it? The prisoner said charge of ^^^ ^''^'^ ^^^ ^°°^ '^^- -^^^ police officer replied, that he would not have felony, told SO many falsehoods as he had, if he had not been concerned in it, aud when ^^^ |^g ao;ain asked him if any body had induced him to do it? The he bad bad » 11,^1, r • no food for prisoner then began to cry, and made a full confession. In speaking "*-">'"^y ^ of the falsehoods, the police officer referred to an examination of the rightly re- prisoner he had himself made. The prisoner was taken before he had eeived. dined, and had had no food from the time he was apprehended till after his confession. Bayley, J., thought it deserved consideration, whether a confession so obtained, when the detention of the prisoner was per- haps illegal, and when the conduct of the officer was calculated to intimidate, was admissible in evidence, and reserved the point for the opinion of the judges; a majority of whom held the confession rightly received, on the ground that no threat or promise had been used.(rti) Letter In another case,(») where the prisoner, while in gaol, asked the turn- '^dsone^ key if he would put a letter into the post for him, and after his promis- in goal. ing to do SO, the prisoner gave him a letter addressed to his father, and the turnkey, instead of putting it into the post, gave it to the visit- ing magistrates of the gaol, who gave it to the prosecutor ; Gar- row, B., held, that the letter so obtained was admissible in evidence, and said, he remembered making an objection, when at the bar, to evidence under the same circumstances, before Mr. J. Gould, who overruled it. There must If the expressions be not calculated to raise any hope of some benefit of temporal '^'^ advantage of a mere temporal nature, it seems that they will not benefit. exclude a confession. Upon the trial of a girl for arson, evidence was offered of declarations made by the prisoner to her mistress, after her mistress had told her it would be better if she would confess if she were guilty, for she would never be easy in her mind till she had confessed. Holroyd, J., after consulting Bayley, J., was of opinion that the evidence was receivable ; but it was afterwards excluded on other grounds. (c) Giiham's Upon an indictment for murder, it appeared that the prisoner and confess^n ^^^ deceased had been in the service of Mrs. Co.xe, at Bath. The made in deceased was murdered in the night of the 26th of January, and the conse- prisoner was apprehended on the 30th of that month, and some articles persuasion belonging to Mrs. Coxe afterwards found in a room hired by him. {m) Rex V. Silvester, Thornton. Ry. & Mood. C. C. R. 27. Best, C. J., Bayley, J. and Hol- royd, J., disseniknlibm. [n) Ilex V. Derrington,* 2 C. & P. 418, Garrow, B. [o) Rex V. Hodgson, 2 Stark. Ev. 37, note. " Eng. Com. Lavr Rep.?, xii. 199. CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 84R When in gaol, the prisoner had the B'Mv and the "Whole Duty of Man ''yaclorf^v- by him ; the gaoler pointed out several passages for *him to read in the ,viti,'anv Prayer Book, particularly the opening sentence of the service, and told view oi him if he wished to have a spiritual adviser, he would endeavour to get [^^"'^'^{"j^ him one; and after some conversation, the prisoner expressed a wish to adinissiijl-.-. have the chaplain of the gaol. The chaplain went to the gaol and asked *849 the prisoner why he sent to him; the prisoner answered, to read and pray with him, as he could not do it himself, or make use of the books which were lying before him, which were the Bible, Prayer Book, and Whole Duty of Man. The prisoner said he knew he was a sinner and should soon die. The chaplain asked him bow he knew it; he replied, he had been told at the Hall he should be hanged for taking the goods of his mistress; and be then admitted that he bad purloined a few things from her. The chaplain saw he was in a very perturbed and distressed state of mind, and asked him if there was not something still more heavy on his conscience; he said he knew he was a sinner as other men, and he knew he was suspected of the unhappy murder. The chaplain told him, if he was innocent to maintain his innocence; but if not, his own heart would tell him. The chaplain, as the minister of God, thought it was his duty to warn him not to add sin to sin, by attempting to dis- semble with God. The chaplain then asked him, as he confessed him- self a sinner, and as he thought he should soon die, whether he would not wish to repent of his sins ; he answered in the affirmative. The chaplain then explained to him what he considered to be the nature of true repentance ; and, amongst other things, that it was not a mere ac- knowledgment of sin, but a deep search into ourselves, and by the purity of the Gospel, whenever we found ourselves deep defaulters, to confess the same before God, with a deep contrition on our part for having violated the law of God. The chaplain told him, that before God it would be better for him to confess his sins. The chaplain also told him, that next to confessing his sins before God, another most im- portant part of the duty of repentance was to repair, by all possible means in his power^ every injury of whatsoever nature he had done to his fellow creatures; he enlarged very considerably on his repairing the injuries he had done his fellow creatures, as forming a branch of true repentance ; and he said he might say, and repairing any injury done to the laws of his country. The chaplain stated that the prisoner was then extremely agitated ; he read to him part of the Commination Ser- vice, commenting upon it as he went along. He thought at one time that the prisoner was on the point of making some immediate commu- nication to him, and he asked him if he should send for Mr. Bourne, (the gaoler,) meaning it with a view of the prisoner making a commu- nication to Bourne, because he considered he had made a great impres- sion on the prisoner. The chaplain stated the prisoner's agitation and perturbed state of mind during the interview was so great, that he could not help being aware that the prisoner had something pressing on his mind; and the chaplain said, while that was the case, he could tell the prisoner, and the prisoner would feel, that no services of his would aiford him, what he wished they should do, real comfort; telling him also he must be aware that he, as a minister of God, had but one object in view, to bring him to a state of true repentance; and that he could not but himself feel sensible that he was more concerned in the dread- ful deed than he had admittted; that *hc did not wish him to confess *850 850 OP EVIDENCE. [book VI. Oilham's to bim, but to bear in mind tbe subject on whicb be had talked to bim ''"^®' and read to bim. Tbe prisoner was evidently so worked upon by what bad been said, tbat tbe cbaplain could not but observe it to bim, and asked bim, wbetber bis conscience did not bear witness to tbe truth of Avbat be bad advanced. Tbe cbaplain soon after left him, tbe prisoner having expressed a wish to see bim again. He then went and reported to the magistrates what bad passed between them ; and having recov- ered himself a little from the agitation be was in from so painful an in- terview, went to tbe prisoner again a little before three on the same day, and resumed the tenor of his conversation iipon repentance, and confessing bis sins before God, and repairing, by every possible means, any injury be had done to bis fellow creatures. As tbe prisoner bad himself alluded to the murder, the cbaplain entreated bim, if be knew himself guilty, to avail himself by tbe means of general repentance and faith in Christ, to be reconciled with God. At one time, during this interview, the chaplain saw so evident an impression made on bis mind, tbat he could not but tell him his fear, which he had expressed to tbe prisoner in the morning, respecting his participation in the dreadful deed, was fully confirmed ; and that while he was in tbat state of mind, be (the chaplain) could not alFord him the consolation by prayer, which it was his earnest wish to do, and so that his prayers could be of any avail to bim ; and be soon after left the prisoner. The first interview lasted about two hours, and tbe second about an hour and a quarter, and during these interviews the cbaplain enlarged upon the topics men- tioned to the prisoner. Tbe chaplain said he could almost take upon himself to say, that be always used the terms, " confessing his sins be- fore God ;" but be afterwards said that he could not say that be men- tioned "before God" every time he used the word "confessing." After the second interview, the gaoler saw tbe prisoner, and told him, the prisoner, what had passed between him, the gaoler, and tbe pri- soner's wife ; and he also told the prisoner that he was perfectly satis- fied tbat what be, the gaoler, said in tbe morning was correct. Tbe prisoner then said he would tell the gaoler all about it. The gaoler said 1st caution, to him, "Don't tell me anything but what you would wish tbe mayor and magistrates to know ; for whatever you tell me I must inform them istcoufes- of." The prisoner then related to tbe gaoler the particulars of the mur- t'aol *° ^^^> ^^^ ^^^ ^^y ^^ which he bad committed it. The gaoler then said to bim, " Now I shall tell all this to tbe mayor and magistrates." The prisoner then said, "Tbat is what I wish;" be said be bad endeavoured to make up bis mind to confess before, he bad a great mind on Mon- day. He then requested the mayor should come and hear what he had to say; and particularly wished to see the clergyman again. The next morning (Saturday) tbe gaoler saw bim again and read to bim two prayers and a psalm : be said be felt himself a good deal easier in his mind. The mayor of Bath and town clerk came about ten o'clock. Tbe prisoner, before he saw them, told the gaoler that some part of what be bad stated the night before was not correct, as to what part of the house he met the deceased in when be first struck her, and be said it was in another part of the house. When the mayor saw tbe prisoner in the gaoler's room, he said, " I am come to see you, as I understand *851 yo*^ '^'sb *to make some communication to me." The mayor then said 2n(l cau- to bim, "Before you say anything I think it necessary to apprise 3'ou, tion. as I have done several times during your examination, that it will pro- CHAP. IV. § I.] OP CONFESSIONS AND ADMISSIONS. 851 bably be given in evidence against you. You are, therefore, to use your GilhamV own discretion, and say little or nothing, as you may think best; and if *^'**'^' you have changed your mind since you sent to mo, and do not choose to say anything, I will retire, and shall not feel at all angry with you for having brought me down unnecessaril3^" The prisoner said some- Snd confei<- thing: what he said was taken down in writing in his own words, itS'o"t<"°® was read over to him by the town-clerk, and the clerk asked him if ho had any objection to sign it; he said he had not any, but his hand shook so much he could not write his name, but it was all true. The mayor then signed the examination, but it was not signed by the prisoner. This examination of the prisoner was read ; and it contained a confes- sion of his having committed the murder, and the circumstances attend- ing it. It appeared from the evidence of the mayor, that the prisoner had undergone five or six examinations, including the coroner's inquest. In the course of the same morning, after the mayor was gone, one of the mayor's officers saw the prisoner, and in answer to a question how he was, the prisoner told him he was better since he had cased his mind; and in the conversation they had, he told the oflScer that he had com- ^j<^ confc?- mittcd the murder, and related some of the particulars. The next morn- mayor's *' ing (Sunday) the prisoner was taken from Bath to the county gaol by officer, another of the mayor's officers, and in answer to an inquiry how he felt, he said he felt a good deal better since he had relieved his mind; and in the course of their journey he told this last mentioned officer that he 4th confos- had committed the murder, and stated some of the particulars. It was^""^^,^* " contended on the part of the prosecution, that even supposing the con- officer. fession made to Bourne, the gaoler, at Bath, immediatel}' after the chap- lain's interview with the prisoner, were not receivable in evidence, still, that the confession made to the mayor was receivable, inasmuch as the mayor cautioned him against saying anything, unless he thought it right, and that what he said would probably be given in evidence against him. But Littledale, J., thought that, after what the chaplain Opinion of had said to him, nothing that the mayor said could do away the eflFect littledale, which the chaplain had produced in his mind, and that it differed from those cases where a confession having been made under circumstances which prevented its being received in evidence, if a magistrate has cau- tioned a prisoner not to say anything against himself, a subsequent con- fession made before a magistrate has been admitted in evidence. The learned judge received the confessions in evidence, and the prisonerwas found guilty. But the point was reserved for the consideration of the judges; before whom it was contended, on behalf of the prisoner, that Argument the confessions were all made under the influence of hopes and terrors ]>^^'^J^ *'"" created on the prisoner's mind both by the gaoler and the chaplain, and the prison- were therefore inadmissible ; that the hopes and fears spoken of in the '^''• authorities were of two classes, merely worldly and religious or spiritual. In this case, hopes of temporal favour were created in the prisoner's mind. It was not necessary that hope of pardon should be created ; for any expectation of bettering his condition rendered the prisoner's confession inadmissible. That the persons exerting their influence *ovcr *852 the prisoner to confess were the gaoler, in whose custody he was, and whose favour might lesson his coercion, and the chaplain, a person also in authority, and whose good opinion and report frequently influenced the fate of prisoners. But if no hopes of temporal favour existed, and the inducements held out were merely religious, still they were of such 852 OF EVIDENCE. [BOOK VI. rtilham's a nature as to vitiate the confession. Although the chaplain for the *'"^®' most part used the term of " confessing before God/' yet it was impos- sible but that the prisoner must have understood him to mean confes- sion to man, from the whole tenor of his exhortations. That the con- fession was clearly made under the influence of religious hopes, terrors, and menaces. In terms, therefore, it was within the principle of the authorities. That in the case of a prisoner's examination on oath, the only duress that could be exerted was religious duress, and the duress of the religious obligation to speak even the truth, rendered the confes- Argument siou SO obtained inadmissible. (p) Ou the part of the crown, it was con- **° ^^^ P"""* tended that the confessions were properly received, not having been crown. obtained by any hope of temporal favour, nor any species of duress. The true principle of exclusion was, that confessions obtained by the hopes of pardon and the fear of punishment, are made under the influ- ence of a class of motives that might lead to a falsehood. But no one could suppose that a man under the influence of a deep sense of reli- gion, would confess an atrocious murder of which he was not guilty. The motives, therefore were of a class altogether diff"ercnt from those which usually excluded confessions, and instead of being entitled to no credit, were, from the nature of religion, of the very sort most likely to produce truth ^{q) and if any hope of temporal favour had existed, which was not stated, there had been ample caution given to remove such impi-ession, both by the gaoler and the magistrate. The judges were of opinion that the confessions had been properly received, and that the conviction was right; upon the ground, it is understood, that there were no temporal hopes of benefit or forgiveness held out ; and that such hopes if referable merely to a future state of existence, are not within the principles on which the rule for excluding confessions obtained by improper influence is founded, (r) *853 Upon an indictment for murder, it appeared that the prisoner, who Wild's case, was a boy of the age of fourteen, was taken into custody by Mr. Wragg, ^urtlen^ not a constable, and on the' same night was in the parlour of the inn, charged' to which he was taken; several persons, *neighbours, but no constable, with mur- ^q^.q j^ ^jjg room, and had been asking him questions about the children, was tuld by whom he was charged with drowning. One Clark, who was present a man pre- -vvhcn Wragg took the prisoner up, and who was not a constable, stated heytas ^^ " I ^^^^ ^ii^ to kneel down and tell the truth." Wragg took him into taken up, Adams's parlour, and began to question him how the children came to kneeTyou S*^* ^^^^o the pit ; whether they fell in, or were put in ; he said he should (iown,"lam uot tell anything about it. Wragg asked him if he would tell any one (/)) The following authorities were cited, Rex v. Radford, at Exeter Summer Assizes, 1823, where a clergyman had prevailed upon a prisoner to confess a murder, by dwelling on the heinousness of the crime, aud the denunciation of Scripture against it, without giving him aay caution that it would be used in evidence against him, and Best, C. J., refused to allow the clergyman to state the confession ; saying, that he thought it dangerous, after the confi- dence thus created, which would throw the prisoner off his guard, and the impression thus produced, to allow what he then said to be given in evidence against him. But, it is said that this case was not determined on this ground; but that Best, C. J., thought that it was improper in the clergyman to violate the confidence reposed in him by the prisoner, and ex- pressed a strong opinion to that effect, and as the evidence was not wanted for the crown, it was not pressed, aud the prisoner was convicted without it. Per Follett argueiido, ibid. 200. Rex v. Sparkes, cited Peake, N. P. R. 78. Williams v. Williams,* 1 Hagg. 304. [q) Rex u. Nute, 1 Burn. J., Doyl. & Wms. 1086, ante, p. 832. Rex v. Hodgson, ante, p. 84c>, and Rex v. Merceron,'" 2 Stark. R. "iQG, post, p. 854, were cited. (r) Rex V. Gilham, R. & M. C. 0. R. 186. » Eng. Ecc. Reps. iv. 415. »> lb. iii. 385. CHAP. IV. § I.] OP CONFESSIONS AND ADMISSIONS. S53 else, if be would go out of the parlor; the prisoner said nothing; K'''"g to ask Wragg then went out. I said to the prisoner, "Now kneel you down^^^lJ^g*^"^^ by the side of me, and tell me the truth." I believe this was the first (luostion, thing. lie did kneel down. I said, I was going to ask him a very ""|| ^j||"|^^ serious question, and I hoped be would toll me the truth in the presence me the of the Almighty. I then said, <' Did these children fall into the pit.?" "■""' •" '''«, TT -111! • •! r 11 -111 iiresonce of He said he pushed one in with one toot, and the other with the other, ti,t. a1- but not purposely. Mr. Mouldcn asked him if he had any malice or"''"'''y'" revenge ; he said no. Subsequently to this, the son of the innkeeper ^en[' madJ stated that next day the prisoner said be would tell him all about it. »» conso- He neither promised nor threatened bim. The prisoner then made a JJ"J^"*'J|j.jgj_ statement to him, which was given in evidence. Other declarations ly admis»i- also were given in evidence. An examination of the prisoner, who ^^'^' could not write, was put in, it began, "W. Wild being cautioned, &c.," and the evidence being read over to him said, " I can give no other account than I have already given, &c."{s) The prisoner having been found guilty ; upon a case reserved as to the admissibility of the evi- dence, the judges present wore unanimous that the confession was strictly admissible, but they much disapproved of the mode in which it was obtained. (<) It has been said that a prisoner ought not to be questioned by a ma- Confessions gistrate ; and in Ilex v. Wilson, («) the prisoner's statement was on thi3[.„g5^p^g^ account rejected as inadmissible ; but Mr. Starkie,(f) observes, that b}' I'ut by ma- the statute of Thillip and 3Iary(if) formerly, and now by the 7 Geo. 4, S'st'"'*'^^- c. G4, s. 2, the magistrate is to take the examination of the prisoner, and he cites a case where Holroyd, J., admitted the prisoner's examina- tion to be read against him notwithstanding this evidence. And in a still later case,(a-) Littlcdale, J., held that the examination of the pri- soner, taken before the committing magistrate, was admissible, though *854 it appeared that part *of it had been elicited by questions put by the ^'"S"- magistrate. And it seems now to be settled, that a magistrate may, if put ques. be think fit, put questions to a prisoner charged before him with a crime, t'o"s *" and consequently, that the statement of the prisoner in answer to ques- y[, j^° g". tions, so put, is admissible in evidence. A prisoner was examined seve-amination. ral times before a magistrate, who took down what the prisoner said at each examination, no threat or promise being used, but much being in answer to questions put by the magistrate. The prisoner at each ex- mination had the notes read over to him, and stated them to be correct. (s) The stalcmcut is given at length in the report, as well as the statement ma lb. xxxii. 633. "= lb. xxxiv. 341. i lb. iii. 385. CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 855 to be examined for the purpose of showing that no oath had in fact been administered to the prisoner, saying that he could not allow that which had been sent in under the hand of the magistrate to be disputed. (^) So where the examination of a prisoner began, « The informatiou and complaint of R. Bentlcy, taken upon oath," &c., Gurney, B., rejected the examination, and would not permit the magistrate's clerk to prove that the examination was not taken upon oath, and that the statement was a mistake. (^) So an examination beginning, «This deponent saith," has been rejected, as that implied that the statement was made upon oath. (A) So where it appeared from the depositions, that the ma- gistrate had written down that the prisoner was sworn, and made a statement, which he returned as his examination, but a witness said that in fact the prisoner was not sworn ; Parke, B., in the presence of Bosanquet, J., said, that as the magistrate had returned tliat the pri- soner was sworn, the statement made could not be received in evi- dence. (/) So where a statement made by a prisoner before a coroner at an inquest, purported on the face of it to have been taken on oath, but the coroner would have proved, if parol evidence were admissible, that in fact no oath was administered to the prisoner ; Alderson, B., said, '' As the f-tatement purports to be a statement on oath, I cannot receive it as evidence against the prisoner; and I think, as it so purports, I can- not allow parol evidence to be given to show that the statement was not made upon oath. (J) If the examination of a prisoner is rejected on the ground that it pur- And parol ports to have been taken on oath, parol evidence of the prisoner's evidence of statement is not admissible. A statement of a prisoner made before er's state- the committing magistrate had at the conclusion the word.s, '' taken nicnt is not and sworn before mc," and under those words the signature of the* ™'^*' magistrate ; the statement was rejected, and evidence that the prisoner was not sworn held inadmissible ; and it was also held that parol evidence of what the prisoner said before the magistrate could not be received. (/•;) *The ground on which these decisions proceeded was, that the ac- *856 count given by a prisoner before a magistrate ought not to be upon Examina- (/) Rex V. Smith/ 1 Stark. R. 242. {ont, p. 8G0. (k) Rex t'. Rivers,f 7 C. & P. Ill, Park, J. A. J. The learned judge said, " I reniember a case in which the heading of a deposition was used, and it stated that the prisoner was sworn. The written evidence was rejected, and parol evidence was olTered, and that was rejected also. As I see there is a writing, I cannot receive parol evidence." Mr. Pliillipps, vol. i., p. 403, saj'S, " But there seems no good groimd for this decision," and in vol. 2, p. 30, he says, '' this is a strong decision, for if there was no oath imposed, and if the prisoner had his choice to speak or not, as he might tiiink right, his statement was voluntary, and why should the mistake or carelessness of the magistrate, or his clerk, in making a mis- statement as to the fact of swearing be an estoppel to the reception of evidence, which in all other respects is unobjectionable?" » Eng. Com. Law Reps. ii. 374. *> lb. xxv 325. ' lb. xxxviii. 67. d lb. xxxiv. 375. * lb. xxxviii. 44. ' lb. xxxii. 486. 556 OF EVIDENCE. [book VI. tion on oath is not ad- missiblo. I'risonor cxaniiiioil on oath be- fore any charge in ado against any uue. As a wit- ness against another prisoner. oath ; ami if the prisoner has been sworn, his statement cannot be received. (?) Upon an indictment for administering poison, it appeared that on the day on which the prisoner was committed, she and several others were summoned before a magistrate, and at a time when she was under no charge, and when there was no specific charge against any person, she and the other persons were examined upon oath touching this poison- ing, and their statements taken down in writing; but on the conclusion of the examination, the prisoner was committed for trial on this charge. It was proposed to put in the examination of the prisoner, and Rex v. Tubby(??i) was cited. Gurncy, E., <• , . . . coroner. tion of B., so taken on oath, on the coroner s inquest, to be read m evi- dence, on the trial of an indictment against B. for the same murder.(w) Upon an indictment for rape against Owen, Ellis, and Thomas, it Owen's nrst («) Reg. V. Wheater, 2 Moo. C. C. R. 45. 2 Lew. 157. Park, J. A. J., and Gurncv, H.. -were absent. In Rex v. Dritton, ] M. & Rob. 297, the balance-sheet of a bankrupt, given on oath, under his commission was held inadmissible; but the ground of this decision was, that the balance-sheet could not be given in evidence unless there were a valid commission ; and therefore, the balance-sheet being part of the proceedings, could not be i)ut in evidence to prove the petitioning creditor's debt as a part of the commission; j>er Pattcsou, J., in Reg. V. Wheater. (d) Rex V. Highfied, Stafford, Sum. Ass. 1828, MSS. C. S. G. The prisoner was executed. See Rex »>. Lewis, anle, p. 856, as to an affidavit in a suit in the Ecclesiastical Court. (kj) Anonymous, 4 C. & P.» 255, note (/>). In Rex v. Clewes, reported as to other points in 4 C. & P.*" 221, the grand jury asked Littledale, J., " Can the evidence of a prisoner who » Eng. Com Law Reps. xix. 370. *> lb. xix. 354. 860 OF EVIDENCE. [book VI. caso. Deposi- tions bo- foro a co- roner by prisoners iidmittcil on a trial lor a rape on the do- ceased. Owen's second case. The same de- positions rejected on a trial for murder of the same woman. *861 Sandys' ease. Deposition before a coroner on an inquest on the body of one per- son read over on the inquest on another body, and appeared that an inquest had been held upon the body of the woman alleged to have been ravished, and the coroner stated that at the inquest Owen made four statements; he had been sworn before each statement; each of the statements was taken down in writing, and signed by Owen. Ellis made and signed a statement, and so did Thomas; they were sworn before the statements were made. No inducement of any kind was held out to either of the prisoners to make any statements; neither threat nor promise ; they were all three brought before the coroner in custody. It was objected that the statements were not receivable in evidence, as they were on oath. The persons were in custody; and in Reg. V. Wheeley,(:c) Alderson, B., rejected the statement of the prisoner, which had been taken at the inquest, because it was on oath, and taken while he was in custody. Williams, J., " I know that my brother Al- derson did so, but I also know that since that there has been a reaction of opinion (if I may be allowed the expression) ; I shall therefore receive the evidence, and reserve the point if it should become necessary .''(y) But where upon an indictment against the same prisoners for the murder of the same female, whom they had been charged in the pre- ceding case with ravishing, the same depositions of the prisoners, taken on oath, at the coroner's inquest held on the body of the deceased,(2) were tendered in evidence; Gurney, B., said, "I am not aware of any instance in which an examination on oath, before a coroner or a magis- trate has been admitted as evidence against the person making it. I have known depositions before magistrates, made by prisoners on oath, and they have been uniformly rejected. In my own experience I do not recollect a case of a deposition before a coroner." After mention- ing Reg. V. Wheater,(a) the learned Baron added, " I confess that I do not, on principle, see the distinction between that and some of the other cases. Still I am of opinion that in the present case, I ought to reject the evidence. (i) Upon an indictment for the murder of Elizabeth S., it appeared *that no suspicion arose that her death had been caused by poison until after the death of Mary Ann S. ; but the parents having insinuated that Mary Ann had been poisoned by Riley, she was taken into custody upon the charge, and on the examination before the coroner as to the cause of Mary Ann's death, the mother was examined on oath, as a witness and her deposition was taken in writing, and read over to her, and she put her mark to it. In the course of that examination questions were put to her relative to the death of Elizabeth, and in consequence of her answers, and other circumstances, the body of Elizabeth was disin- was examined on oath before the coroner as a witness, be admitted as evidence against the same person, wlicn subsequently indicted for the murder of the person, on whose body the inquest was held?" Littledale J., "Whatever any prisoner says at any time against himself is evidence, and therefore, such a statement is admissible." The preceding case was then mentioned, on Avliich the learned judge seemed to entertain doubts upon the point, but di- rected the grand jury to receive the evidence, and leave the point for discussion upon the trial. MSS. C. S. G. (x) Ante, p. 855. (y) Reg. V. Owen,* 9 C. & P. 83. The report then proceeds, Mr. Tooke, (the coroner) re- called : "I asked Owen if he was desirous of giving his evidence, and he said, yes; he was sworn, and gave evidence. I asked each of the other prisoners if he wished to give evi- dence, and each said that he did." Aldersou, B., was the other judge at Stafford when this case was tried ? (z) This is the whole statement in the report. (a) Ante, p. 858. (6) Reg. v. Owen,'' 9 C. & P. 238. * Eng. Com. Law Reps, xxxviii. 44. ^ lb. xxxviii. 99. CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 861 terred, examined, and found to contain arsenic in the stomach. The ft'ltlitional parents were therefore taken into custody, and brought before the thc'n mld'o* coroner in custody, separately. The mother was told that she was to it. charged with having poisoned her two children, and that that was the time whcu she might make any statement that she liked to the jury, and that what she said would be taken down in writing. Her former deposition made by her as a witness, was then read over to her, and she said that she had a further statement to make, which she made, and what she said was written down and afterwards read over to her ; she was a.sked to sign it, and refused. The coroner signed it, and it was produced and offered in evidence against the mother, together with her original deposition. It was objected that as the greater part of the statement had been made by the prisoner, when under examination be- fore the coroner, upon oath, it could not be read in evidence against her. Erskine, J., received the evidence, but reserved the point for the consideration of the judges. (i) But as the mother was ac(juittcd, the judges thought it unnecessary to determine the question. It has been determined by the opinions of all the judges that although Discovfrics confessions improperly obtained are not admissible, yet that any facts, J"uen"o^of which have been brought to light in consequence of such confessions ton fessions may be received in evidence. (^r) Thus, where a prisoner was indicted "".''"1^ as an accessory after the fact for having received property, knowing it to be stolen, and had, under promises of favour, made a confession : and in consequence of it the property had been found in her lodgings, con- cealed between the sackings of her bed: it was held that the fact of finding the stolen property in her custody might be proved, although the knowledge of it was obtained by means of an inadmissible confes- sion. ('^7)f So where a prisoner indicted for stealing a number of diamonds and pearls had been improperly induced to make a confession, from which it appeared that he had disposed of part of them to a cer- tain person ; it was held allowable on the part of the prosecution to call that person to prove that he had received the property from the pri- soner, (e) As far as these cases go, there can be no difficulty as to the propriety of their decisions, because the bare facts of the property being *found in the possession of the prisoner in the one case, and of his *8G2 dealing with it as his own in the other, would, unconnected with any confession, have been clear evidence in support of the prosecution. But the causes have gone further than this, for it has been held that, on a pro.secution for receiving stolen goods, where a confession had been (b) Reg. V. S.mdy.^* 1 0. & Mar.'J. 345. (c) 1 Phill. Er. 411. (d) Rex V. Warrickshall, 1 Leach, 263, 0. B. 1T83. S. P. Mosey's case, 1 Leach, 205, v. 0. B. 1784. So in Rex v. llarriy, R. & M. C. C. R. 338, post, p. 877, after the prisoners bail been before the niaKistrate, one of tlio prisoners went with one of the prosecutors to afield, ami said he could find the skin l)urieil, and slunved the place, which was dufr up and the skin found. So in Thurtel's case, cited in Allison's Cr. L. of Scotland, 584. and Joy, 84. aUliough a confes.sion obtained by means of promises or hopes of impunity held out, was not used in evidence airainst him, yet tlie fact that the (joods were recovered, or the cori)?e found, in consequence of the confession, at the place mentioned in the confession, was lield receiva- ble in evidence. (e) Lockhart's case, 1 Leach, 386. f {In Commonwealth v. Knapp, 9 Pick. 496, where the prisoner's confession was excluded, a witness was nevertheless permitted to testify that a weapon, used in the commission of a murder, was found by him in a particular place, and that he was directed to the place by the prisoner.} [State y. Crank, 2 Bailey, 67, Rose. Dig. Cr. Ev. 36, w.] » Eng. Com. Law Reps. xli. 101. Vol. II.— 56 862 OF EVIDENCE. [BOOK VI, hiiproporlj dniwu from a prisoner, in tlie course of which he described tlie place where the goods were concealed, evidence might be given that he did so describe the place, and that the goods were afterwards found there. (y) In this case it is clear that the bare fact of finding the goods would be no evidence against the prisoner, unless coupled with a part of the improperly obtained confession. And some have accord- inglj doubted whether any part of such a confession can properly be used for such a purpose. Thus in Harvey's case, Lord Eldon, C. J., said that where the knowledge of any fact was obtained from a prisoner under such a promise as excluded the confession itself from being given in evidence, he should direct an acquittal, unless the fact itself proved would have been sufficient to warrant a conviction without any confes- What isthesion leading to it; and he so directed the jury in that case. (tber prisoner, when not before a magistrate, such confession would a prisoner be admissible against the prisoner in whose presence it was made, not before although he made no observation with reference to it; for a confession trate." may be collected or inferred from the conduct and demeanor of a pri- soner on hearing a statement affecting himself. (a;) But as such state- ments frequently contain much hearsay and other objectionable evi- dence, and as the demeanor of a person upon hearing a criminal charge against himself is liable to great misconstruction, evidence of this description ought to be regarded with much caution. "(?/) Statement Not only what is said by a prisoner, but what is said to him, or in made in jjjg presence, except when before a magistrate, is admissible in evidence, sence of a and it makes no difference that what was said was said by a person who prisoner by cannot be called as a witness.f On an indictment for murder, some observations made to the prisoner by his wife, to which he made an evasive reply, were about to be stated, when it was objected that the statement ought not to be made, as the wife, if she could by law be examined, would give a direct contradiction to them ; but Gaselee, J., and Parke, J., were both of opinion that the statement might be made to the jury; and that the circumstance of the observations being stated to have been made by the wife, who could not be called as a witness, did not vary the general rule, that whatever was said to a prisoner on the subject-matter of the charge, to which he made no direct answer, was receivable as an implied admission on his part.(2;) So where the wife of the prisoner, who was indicted for the murder of his wife's (;;) This statement was not in writing, and objected to on that ground, but Tindal, C. J., held that " this being a summary conviction is not a case in which magistrates are required to take down the evidence in writing." And see Robinson v. Vaughton,^ 8 C. & P. 252. S P [w] Rex V. Edmunds,'' 6 C. & P. 1G4. This decision has been doubted, 1 Phill. Ev. 400, and Joy, 79, 80, but as it should seem without any sufficient reason. The decision is pre- cisely in conformity with the distinction taken by Best, C. J., in Child v. Grace,'= 2 C. & P. 193, ante, note {p), p. 864, and it is conceived that the evidence was admissible on the ground that at common law evidence of a deceased witness given upon oath in a judicial proceeding between the same parties is admissible in a subsequent proceeding, the party against whom the evidence is offered having had an opportunity to cross-examine in the former proceeding. See Rex v. Carpenter, 2 Show. 47, and the cases cited, ante, p. 752. C. S. G. ix) 1 Phill. Ev. 400. {y) Ibid. {z) Rex V. Smithies,'! 5 C. & P. 332. I [Where the truth or falsehood of a material fact is known to a party to whom the fact is asserted to exist, his omission to deny its existence is presumptive evidence of its truth. When not known his silence furnishes no evidence against him. Eobinsonv. Blen, 2 Maine, 109.] * Eng. Com. Law Reps. xxi. 376. ^ lb. xxv. 334. « lb, xii. 84. ^ lb. xxiv. 345. OIIAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS 800 ■ — __— — — _ . y mother, came into the room where he was in custody, and said to him, *' Oh, Burtlett, how could you do it ?" He looked steadfastly at her, and said, " Ah, what, you accuse me of the murder, too ?" She said, "I do, Bartlett, you are the man that shot my mother." She then turned to the witness and said, ''This was done for the money." It was objected, that as the wife could not be examined on oath, what she had then said could not be used as evidence against him ; but the evidence was held clearly admissible. (a) The written confession of a prisoner is not admissible in evidence, Examina- unless it be in the language used by the prisoner. A prisoner made aj|^""|^^J' confession to an officer, who left the prisoner and afterwards wrote down wonl.s of from recollection what the prisoner said to him. What the "officer '^''' '"'^?°" wrote was read over to the prisoner before the committing magistrate, udiuissible. and he said that what had been read over to him was the truth, and *8G7 signed the paper. Best, J., " We have not the confession of the pri- soner; we have only the officer's recollection of it, put into writing when the prisoner was not present, and in the language of the officer, and not in the words used by the prisoner. If a confession be not taken in writing, we must be content with the recollection of the witness who proves it, because we cannot have any more certain account of it. I will receive nothing as a confession in writing that was not taken down from the mouth of the prisoner in his own words, nothing that he says that has any relation to the subject being omitted, nor anything added, except explanations of provincial expressions or terms of art. The reading this paper to the prisoner, and the acknowledgement that it was correct, does not remove the objection. By the change of language a very different complexion might be given to the story from what it had when it came from the mouth of the prisoner, and which he might not discover when it was read over to him. The lower orders of men have but few words to convey their meaning, and they know as little of ex- pressions that they are not in the habit of using, as if they belonged to.- another language. I will not receive this paper in evidence. "(^) la the same case it is said that Dallas, C. J., had refused to receive at a former assizes, a confession, because it was not in the prisoner's own words. So where it was proved that the examination of the prisoner before the magistrate was read over to her, and that she signed it, but there was no evidence that it was taken down from what she said, or in the words she used, and in fact it was in language clearly not such as she was likely to have used ; Littledale, J., refused to pcn-mit it to be read.(c) And where a witness having, in her examination before the Kocbo'a corner, stated that she had slept with the prisoner, that he had given ''**°' her two black eyes, that they had seen a placard, &c., the statement of the prisoner before the coroner was tendered in evidence, and was as follows : " Prisoner admits sleeping with the witness, blackening her eyes, seeing the placard," &c., and it was objected that the examination was taken in the third person, which was not complying witli the statute, and did not purport to be the language of the prisoner at all, but merely (./) Rex V. Barlclt*, 7 C. & P. 832. See Rex v. Simons,'' 6 0.& P. 540,Avhcre Alderson, B.. held tliiit what a person is overheard saying to his wife, or even saying to himself, is evidence against him. [h) Rex V. Sexton, 2 Burn's J., Doyl. & "Wms. p. 108G. (c) Rex V. Mallet, Gloucester Spr. Ass. 18.30, MS. C. S. G. » Eng. Com. Law Reps, xxxii. 759. " lb. xxv. 532. 867 OF EVIDENCE. [bOOK VI. the coroner's expression of what he considered the prisoner to mean. The jury were to judge of the effect of the statement, and they could not do that without having before them the very words in which it had been made. Lord Denman, C. J., thought the objection of considerable importance. As to the mode of taking the examination of the prisonei', that was a very improper way in which to do it. Ills lordship did not, however, see how he could exclude the evidence, but he should reserve the point in case it were necessary. (r?) All names Where the confession of a prisoner mentions the name of another in the con- pj.jgoner tried at the same time, it seems, according to the later cases, must bo that the whole of the confession, whether by parol, or in writing, must mentioned. |jq given in evidence. The judge will, however, in such cases, *direct °^^ the jury that the confession is only to be taken as evidence against the prisoner who made it. On the Oxford Circuit it was the constant prac- tice a few years ago to omit the name of any prisoner that was men- tioned in the confession of another prisoner,(e) But it has been held in many cases on that circuit(/) and elsewhere, that the proper course is to state or read all the names mentioned by the prisoner in his confes- sion. (r/) A very learned judge has, however, expressed on several oc- The whole casions a strong opinion that such a course is unfair, ((/y) If, on the of a con- pj^j,j. q£ ^j^g prosecution, a confession or admission of the defendant, made, or admis- in the course of a conversation with a witness, be brought forward, the sion must clcfcndaut has a right to lay before the court the whole of what was bo stEted . said in the same conversation ; not only so much as may explain or qualify the matter introduced by the previous examination, but even matter, not properly connected with the part introduced upon the pre- vious examination, provided only that it relates to the subject-matter of the suit; because it would not be just to take part of a conversation, as evidence against a party, without giving to the party at the same time (d) Reg. V. Roche,* 1 C. & Mars. 341. Verdict, not guilty. (e) See Rex v. Fletcher,'' 4 0. & P. 250. Rex v. Limer, Stafford Spr. Ass. 1839, Bosan- quet, J. MS. C. S. G. (/) Rex V. Hearue,c 4 C. & P. 215, Littledale, J. Rex v. Clewes, ibid., 221. Rex v. Daniel and Gai-land, Monmouth Spr. Ass. 1831, MSS. C. S. G. Bosanquet, J., saying, " The ground I go upon is, that I do not think I am authorized to direct the officer to read one word in- stead of another. I cannot tell the officer to read what is notwritten." In Rex v. Giles and Betts, Worcester Spr. Ass. 1830, MS. C. S. G., where there was a parol confession, Littledale, J., said, "he was satisfied the proper way was to state the names uttered by the prisoner, as to state ' another person' instead of the name used, was not to state the truth, which a wit- ness was sworn to do." In Rex v. Harding, Bailey, and Shumer, Gloucester Spr. Ass. 1830, ]\IS. C. S. G., where there was a written confession, Littledale, J., said, "Suppose two men are indicted, one as principal, and the other as accessory, and the principal is named in the indictment, and the accessory makes a confession admitting himself to be accessory to the |irincipal, how is it to be known that he is accessory to such principal, if the name of the principal is not to be read? I liave considered this case very much indeed, and I am most ilearly of opinion that it is to be read as the prisoner made it, because otherwise the evi- dence is not read as it was given by the prisoner. I liave no doubt upon it, and will not, therefore, reserve the point." Rex v. Walkley,'' 6 C. & P. 165, Gurney, B. (^r) Rex V. Fletcher,* 4 C. & P. 250, Littledale, J., at York. S. C. 1 Lew. 107. Hall's case, 1 Lew. 110, Alderson, B., at Appleby. Foster's case. 1 Lew. 110. Lord Denman, C. J., at ♦ 'arlisle. Rex v. Fletcher, supra, was the case of a letter written by one prisoner, and impli- cating another. (fjff) Parke, B., in Maudsley's case, 1 Lew. 110, and Barstow's case, ibid. It would be ex- tremely beneficial to prisoners in such cases to be tried separately, and such a course is nothing more than expedient in cases of difficulty, as it is almost beyond the power of a jury properly to discriminate between the evidence affecting different prisoners. C. S. G. »Eng. Com. Law Reps. xli. 180. bib. xix. 369. « lb. xix. 350. d lb. XXV. 340. e lb. xix. 369. CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 868 the benefit of the entire residue of wbat he said on the same occasion. (/t)f It seems at one time to have been considered that if a prosecutor uses The jury the declaration of a prisoner, he must take the whole of it together, and "^pjl cre(Ht cannot select one part, and leave another; and if there be no other evi-touny dence in the case, or no other evidence incompatible with it, the decla- f ^"?'^™®°' 1 1 / •\ •¥» 1 - ,. in It in ration so adduced must be taken as true. (tj iJut the correctness oi this favour of position has been doubted, (7) *and it seems now to be settled that the tii^' prison- whole of the prisoner's statement must be taken into consideration by g^^j^ ^jj^^j^ the jury, who are not bound to take what he has .said in his favour to fit. be true, because it is given in evidence by the prosecutor, but are to *8G9 weigh it, with all the circumstances of the case, and determine whether they believe it or not.(7i;) The jury may, therefore, believe one part of the prisoner's statement and disbelieve another. (?) They may believe that part which charges the prisoner, and reject that which is in his favour, if they see sufficient grounds for so doing. (??t) In determining wliether the statement be true or not, the jury should consider whether it be probable or improbable in itself, and it be consistent or inconsis- tent with the other circumstances of the case.(?() If what he said in his own favour is not contradicted by evidence oflFered by the prosecu- tor, nor improbable in itself, it will naturally be believed by the jury ; but they are not bound to give weight to it on that account, but arc at liberty to judge of it like other evidence, by all the circumstances of the case.(o) But if, after the whole of. the statement of the prisoner is given in evidence, the prosecutor is in a situation to contradict any part of it, he is at liberty to do so, and then the statement of the prisoner, and the whole of the other evidence must be left to the jury, precisely as in any other case, where one part of the evidence is contradictory to another. (j:)) (/() By Abbott, C. J., in the Queen's case, 2 Brod. k Binfr.» 297. }1 Harris & Gill. IGl, Turner v. Jenkins. 1 Minor's (Alab.) Rep. 409, Rogers v. Wilson.} (i) By Bosanquet, Serj., in Rex r. Jones," 2 C. & P. G30. So where the prisoner was in-. dieted for a larceny, and in addition to evidence of the possession of the stolen poods, the counsel for the prosecution put in the prisoner's statement, made liefore the mapistrate, in which the prisoner asserted that he had bought the goods ; Garrow, B., directed an acquit- tal, saying, that if a prosecutor used a prisoner's statement, he must take the whole of it to- gether. Ibid. (.;•) By Park, J. A. J., in Rex v. Lloyd, "Worcester Sum. Ass. 1830, MSS. C. S. G., and 1 Thill. Ev. 399. (/<•) Rex V. Clewes,'= 4 C. & P. 221, Littledale, J. Rex v. Steptoe,-' 4 C. & P. 397. Rex v. Iliggins,' 3 C. & P. 603. Parke, J. Rex t-. Jones, Monmoutli Sum. Ass. 1830, MSS. C. S. G., Park, J. A. J. Rex v. Locker, Stafford Spr. Ass. 1831, Patteson, J., MSS. C. S. G. {I) I Phill. Ev. 399. (m) Greenl. Ev. 253, citing Rex v. Stejjtoe, siqmi. Rex v. Clewes, supra. Rex r. Hig- gius, supra, and Respublica v. .M'Carty, 2 Dall. 8G, 88. (?i) Rex V. Steptoe, supra. Rex v. Jones, supra. (o) Greenl. Ev. 253. [p) Rex r. Jones, f 2 C. & P. 630. So in a civil case, if a person says, " that he did owe a dei3t, but that he had paid it," such an admission would not be received as evidence to prove the debt, without being also evidence of the payment. Pfr Ilale, C. J. Anonymous case, cited in 12 Vin. Abr. tit. Ev. A. 23. What he has said in his own favour may, per- haps, weigh very little with the jury, while his admission against himself may lie conclu- sive ; however, it is reasonable, that if any jiart of his statement is admitted in evidence, the I [This rule does not exclude a confession where only part of what the defendant said has been overheard. Stale v. Coringlon, 2 Bailey, 569. The entire confessions and statements of a l)arty must be given to the jury as they were made, but the jury mav believe a portion, and disregard the rest of such confessions and statements. Cook v. The State, 13 Smedes & Marshall, 246. M'Cann v. The State, Ibid. 471.] » Eng. Com. Law Reps. vi. 120. " lb. xii. 293 <= lb. xix. 354. <• lb. xix. 440. « lb. xiv. 603. f lb. xii. 292. 869 OF EVIDENCE. [bOOK VI. As til this For the purpose of iutroducing a confession in evidence, it is uiine- introJuc- ccssury, in general, to do more than negative any promise or iuduce- iugcou- ment held out by the person to whom the confession was made.((/) In cvTdeiiciT ''' *'^'^^ ^^^' ^^^^^^'^> ^*' w^s proposed to give in evidence a statement of the prisoner, made in prison to a coroner, for whom the prisoner had sent. It however appeared, that previous to this time, Mr. Clifton, a magistrate, had had an interview with the prisoner; and it was sug- gested on behalf of the prisoner, that he might have told the prisoner that it would be better to confess, and that, therefore, the counsel for the prosecution were bound to call him. Littledale, J., "As something might have passed between the prisoner and Mr. Clifton respecting the confession, it would be fair in the prosecutors to call him, but I will not compel them to do so. However, if they will not call him, the prisoner may do so if he chooses. "(r) So where a prisoner being in the custody of two constables, on a charge of arson, one Bullock went into *870 the room, *and the prisoner immediately asked him to go into another room, as he wished to speak to him, and they went into another room, when the prisoner made a statement ; it was urged that the constables ought to be called to prove that they had done nothing to induce the prisoner to confess. It was evident that the prisoner acted under some influence, as he first proposed going into another room ; and Rex v. Swatkius,(s) was relied upon. Taunton, J., ''A confession is pre- sumed to be voluntary, unless the .contrary is shown ; and as no threat or promise is proved to have been made by the constables, it is not to be presumed." Having consulted Littledale, J., his lordship added, " We do not think according to the usual practice that we ought to ex- clude the evidence, because a constable may have induced the prisoner to make the statement ; otherwise we must in all cases call the magis- trates and constables, before whom or in whose custody the prisoner has heen."{t) If there bo But if there be any probable ground to suspect that an ofBccr, in ble'ff^ound '^bose custody a prisoner has previously been, has been guilty of collu- to suspect sion in obtaining a confession, such suspicion ought to be removed, in offi ^\ *^^ ^^^^ instance, by the prosecutor calling such officer. Upon an in- improperly dictment for arson, it appeared that a constable, who was called to prove obtained a ^ confession, Went into a room in an inn, where he found the prisoner CODIGS- sion, such ^^ the custody of another constable, and as soon as he went into the oflBcer room, the prisoner said he wished to speak to him, and motioned the calfed. ° ^constable to leave the room, which he did and left them alone. The prisoner immediately made a statement. The witness had not cautioned the prisoner at all, and nothing had been said of what had passed be- tween the constable and the prisoner before the witness entered the room. It was contended, that the other constable must be called to show that he had used no inducement to make the prisoner confess, whole should be admitted. 1 Phill. Ev. 399. See also Smith v. Blandy,» R. & M. N. P. C. 257. Rose v. Savory,'' 2 B. N. 0. 145. (q) 1 Phill. Ev. 409. (r) Rex V. Clewes,<= 4 C. & P. 221. The counsel for the proseciitiou declined to call Mr. Clifton, and he was called and examined by the prisoner's counsel. See this case, ante, p. 836. (s) Infra. [t) Rex V. Williams, Gloucester Spr. Ass. 1832, MSS. C. S. G. The statement was re- jected on another ground. See ante, p. 832. » Eng. Com. Law Reps. xxi. 432. '' lb. xxix. 286. " lb. xix. 354. CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 870 Patteson, J., "I am inclined to think the constable ought to be called. This is a peculiar case, and can never be cited as an authority, except in cases where a man being in the custody of one i)erson, another who has nothing to do with the case comes in, and the prisoner motions the first to go away. I think, as the witness did not caution the prisoner, it would be unsafe to receive the statement. It would lead to collusion between constables. "(?<) In order to induce the court to call another oflBccr in whose custody It must the prisoner had been, it must appear either that some inducement had "-T"",!, been used, or some express reference made to such officer. A prisoner some in- when before the committing magistrate, having been duly cautioned, •l"'" ^- ^^• the justice ''before he shall commit a prisoner brought before him on suspicion of manslaughter or felony, shall lake the examination of the prisoner, and the information of those that bring him, of the fiict and circumstance thereof, and shall put the same, or as much thereof as shall be material to prove the felony, in writing, within two days after the said examination, and the said shall certify in such form and at such time as he ought to do, if such prisoner so committed had been bailed." Between these statutes, the difference was observable : by the former, which was confined exclusively to cases where a prisoner arrested for manslaughter or felony was admitted to ball, the justices of the peace must have taken the examination of the prisoner, and the witnesses against him, and put the same in writing before they made the bail- ment : by the latter, which applied only to cases where a prisoner arrested for manslaughter or felony was committed to (jaol, justices were required to take the like examinations, but were not obliged to put them in writing immediately, having tico days given them by the act for that purpose, (r^ It must also be remarked that these statutes did not extend to misdemeanors or high treason. ("!<' t>(?- niay criminate tliemselves, have, on several occasions rendered it neces- *«75 sary for learned judges to state what is the proper course of *procced- \g ^^ t^o ing in taking the examinations of prisoners. Thus, it has been laid down manner in that " A prisoner ought to be told that his confessing will not operate prisoner^ at all in his favour, and that if any one has told him that it will be bet- should b^ ter for him to confess, or worse for him if he does not, he must pay no "uutione.j. attention to it; and that anything he says to criminate himself will be used as evidence against him on his trial. After that admonition it ought to be left entirely to himself whether he will make any statement or not ; he ought not to be dissuaded from making a perfectly volun- tary confession, because that is to shut up one of the sources of jus- tice."(i ) A prisoner is not be entrapped into making any statement ; but when a prisoner is willing to make a statement it is the duty of the magistrates to receive it; but magistrates, before they do so, ought entirely to get rid of any impression that may have been made on the prisoner's mind that the statement may be used for his benefit, and the prisoner ought to be told that what he thinks fit to say will be taken down, and may be used against him on his trial. (/) The examination of a prisoner ought to be taken down in the precise In w'm' words used by him; and the language ought not to be changed; for if ™xT,"i',^.,." it appear to be in such language as the prisoner did not use, or could tiou .shruM not have used, it will not bo admitted in evidence against him.(/.-) '^"^ taken. [g) Sec the section, post, p. 892, note (6). It seems in several cases to have been taken lor granted lliat tlie coroner haJ the same authority to take the exanunation of a prison'i as a magistrate. See Re.x i.-. Ilecd,' M. & M. Am, post, p. 883. Reg. v. Roche,'' 1 C. & Mar^. 341, ante, p. 8G7. Brogan's ca?e, Rose. Cr. Ev. GO, post, p. 887. C. S. G. (A) Rex I'. Fagg,« 4 C. &. P. 5GG, Garrow, B. Rex v. Bell, 3 0. &. P. 1G2, post, p. R84. Rex «i. Spilsbury, 7 C. & P. 1^1, post, p. 880. (t) Per Gurney, B. Rex v. Grccn,^ 5 G. & P. 312. {j) Reg. V. Arnold,* 8 G. & P. G21, Lord Dcnman, C. J. \k) Rex f. Sexton, 1 Burn's Just. Doyl. & Wms. 1085, ante, p. 8G7, on-l other cases there cited. The proper course is to take the examination in the first person ; c. g. " I did so and so," &c., and to insert the very words the prisoner uses, whatever they may be. C S. G. » Eng. Com. Law Rep.-, xxii. 341. b lb. xli. 189. ♦ lb. xi.x. 530. ■' lb. xiiv. 335. ' lb. xxxiv. 55G. 875 OF EVIDENCE. [BOOK VI. Not upon The examination of a prisoner must not be taken upon oath. But °?'^^' ■ although it was in one case considered otherwise, (A it seems now to be Quostious o _ iiPi -11 -i. may bo settled that questions may be asked of the prisoner by the magistrate, asked. jf jj^ think fit so to do, and that the examination will not be rejected on the ground that the magistrate did put questions to the prisoner, espe- cially if such questions were put merely for the purpose of explaining what the prisoner himself said.(m) Parol cvi- As by the statute the magistrate is expressly enjoined to put the ex- dence of amination into writing, it will be intended that ho did as the law requires ; tion boforo and parol evidence of a prisoner's statement before him ought not to be magistrate received until it is clearly shown that in fact such a statement never ble^ft'cM-^^" ^^^ reduced into writing. (7()-|- And in order to render parol evidence clcarproof of a prisoner's statement inadmissible, it is *not suflBcient for a witness that the ex- j^ state that he did not see anything taken down in writing,(o) or that auiuiatiou ... . » i was not no examination was taken in writing,(^j) but the magistrate s clerk must taken m ^^ called to prove that he did not take down in writing what the pri- *87r' soner said.^*/) But if in fact the examination was not taken in writing, parol evidence may be given of the prisoner's declarations. At the Lent Assizes for the county of Stafford, in 1790, one Hall and two others were tried and convicted on an indictment for burglary. The evi- dence was clear against the two others ; but excepting one or two slight circumstances, certainly not sufficient of themselves to have put Hall on his defence, the only evidence against him was his examination before the magistrate, which was not taken in writing, either by the magistrate or (l) Rex V. Wilson, Holt, R. 597, per Richards, C. B. im) Res V. Ellis,^ R. & M. N. P. R. 432. Rex v. Bartlett," 7 C. & P. 832. Rex v. Rees," 7 C. & P. 568, and see the cases, ante, p. 853. (re) Jacobs' case, 1 Leach, 307. Fearshire's case, ibid., 202. Hinxman's case, ibid., 310, note (a). Fisher's case, ibid., 311, note (a). Rex v. Hollingshead,^ 4 C. & P. 242. Phillips V. Wimburn,* 4 C. & P. 273. Where the law authorized any person to roake an inquiry of a judicial nature, and to register the proceedings, the written instrument so constructed is the only legitimate medium to prove the result. 3 Stark. Ev. 786. Hence parol evidence cannot be received of the declaration of a prisoner taken under the statute, where the ex- amination has been taken in writing. But if the statute had not made the taking an exam- ination in writing a judicial proceeding, there is nothing, it is conceived, in the rules of evi- dence, which would make the statement reduced to writing primary evidence, to the exclusion of any collateral parol proof of what the prisoner declared. If several witnesses were to hear a confession, not made in the course of an examination under the statute, and one of them were to reduce it to writing, as it was being delivered, such writing would not ex- clude the testimonv of the other witnesses. See ante, p. 735. (o) Phillips V. Wimburn,f 4 C. & P. 273, Tindal, C. J. (p) Rex V. Isaac Parker, Gloucester Spr. Ass. 1829, MSS. C. S. G. In this case the witness stated that no examination was taken in writing, and Parke, J., said, " as all things are to be presumed to be rightly done, I must have the magistrate's clerk called to prove that no examination of the prisoner was taken in writing, and unless you can clearly show that the magistrate's clerk did not do his duty I will not receive the evidence." So in Rex V. Phillips, Worcester Sum. Ass. 1831, MSS. C. S. G., where a witness stated that he be- lieved that what the prisoner said before the magistrate was not taken down in writing, but he was not quite certain that that was so; Bosanquet, J., said that the justice's clerk ought to be called to show whether anything had been taken in writing, as it must be presumed that be had done his duty ; and the clerk was accordingly called, and proved that nothing was taken in writing, and then parol evidence was received of what the prisoner said before the magistrate. yq) It should seem on the same ground that where there is no magistrate's clerk pre- sent, the magistrate should be called to prove that he did not take the examination in writing. See Rex v. Harris, R. & M. C. C. R. 338, infra, where this course was adopted. C. S. G. f \_State V. Iririn, 1 Hayw. 112.] * Eng. Com. Law Reps. xxi. 843. ^ lb. xxxii. 759. « lb. xxxii. 633. ^ lb. xix. 365. • lb. xix. 380. f lb. xix. 380. CHAP. IV. § II.] EXAMINATIONS BEFORE MAGISTRATES. 876 by any other person, but was proved by the vlvd voce testimony of two witnesses who were present, and which amounted to a full confession of his iruilt. The case was referred to the consideration of the judges, whether this evidence of the confession was well received; and all the judges except Gould, J., were of opinion that the conviction was right. (/•) So where it was proved that the magistrate before whom the prisoners were examined was very deaf, and did not take down what thcv said when before him; Taunton, J., permitted parol evidence to be given of their statements before the magistrate. (x) So a written examination before a magistrate will not exclude evidence of a previous parol decla- ration, which has not been reduced into writing. (^) And in llowland V. Ashby,(?/) Best, C. J., said, " My opinion is, that upon clear and satis- factory evidence, it would be admissible to prove something said by a prisoner beyond what was taken down by a magistrate." And it has since been expressly held that parol evidence is admissi- Harris's ble to add to the written examination of a prisoner's statements made p**®', _. by him while before a magistrate, and which arc not contained in such ,ienco miiy examination. Upon an indictment against Butler, Harris, and Evans, ^^ Riv<^" •" for stealing a ewe, the property of Bennett, it appeared that Harris, written ex- Butler, and Evans, were taken before a magistrate about stealing three amination sheep of Bennett, Pennell, and Price ; at the meeting Bennett, Pennell, ^oncr'tlkeii and Price, were all present. The magistrate identified the examina-byamagis- tions, and said that was all that was taken *down; that was what each *"""■'"• of the prisoners said; it was all in his writing, he had no clerk; the in- "' ' formations were taken as to the three sheep before Evans and Harris were examined: he took down everything that they said tliat he heard. The papers produced contained everything as he believed that trans- pired before him, and he intended to take down all that was said to him, and he believed he did. The room was very full. The papers produced were the depositions of Pennell, Price, and Bennett, as to the stealing of their sheep respectively, and Butler's examination and confession as to each oflFence. The following were the examinations of Harris and Evans: — "J. Harris being called upon for his defence, voluntarily saith that he was concerned in stealing a sheep, the property of J. Pen- nell, but that J. Butler was the foreleader in the business." " W. Evans voluntarily saith that he did not kill the sheep, but that he helped to curry it away." A witness stated that jMr. C, the magistrate, examined Harris and Evans, and he wrote ; that when Harris was asked about Bennett's sheep, Mr. C. was at the table with his paper and pen before him, but his hand was not going. What Harris said about Bennett's sheep was said to Mr. C. Mr. C. heard what Harris and also what Evans said about Bennett. He took down in writing what they said about Bennett's shecp,(t) what they said they said to Mr. 0. Harris said he was connected with the taking of Bennett's sheep, Harris said (r) IIair.s case, cited by Grose, J., in Liunbc's case, 2 Leach, 55J). Rc.^ v. Huet, 2 Lo.arli, 821. (.s) Rex t'. Rhillock and B.arncs, Stafford Spr. A?.=5. 1832, MSS. C. S. G. (/) Rex x\ M-Carty, 2 Stark. Ev. 38. See also Rex v. Reason and Tranter. 10 How. St. Tr. 3.^), bv Ej-re, J. (Co.xc'sN. J. Rep. 424, State i'. AVells.j {ii) Ry. & Mood. N. P. C.» 231. ((') Qiiccrc, wlicthcr this should not be " Pcnnell's sheep ?'' My MSS. note has no such statement of thi.^ witness, and " Bennett'' might easily be printed erroneously instead of "Pennell." C. S. G. * Eiijr. Com. Law Reps. xxi. 425. Vol. il— 57 877 OF EVIDENCE. [book VI. tlicy took a noJdy out of the road, auJ put tlie slieep upon Lim. Evans said lie helped to take the sheep, liennett's sheep; this was addressed to Mr. C. Another witness said that he heard Harris say that he helped \ to take Bennett's sheep ; that he addressed Mr. C ; that Harris said to Evans " speak the truth, you may as well speak the truth as not ;" that Evans then said he helped to do it ; he helped to take Bennett's sheep; what Evans said was addressed to Mr. C. The evidence of these two witnesses was objceted to, but received, and, upon a case reserved upon the questions whether as Harris and Evans had made a confession as to Pennell's sheep, which had been taken down in writing by the ma- gistrate, any confession as to Bennett's sheep could be supplied by parol evidence ; and whether as the magistrate had taken down in writing everything he heard, and he intended to take down all that was said to him, and he believed he did, parol evidence could be given of anything else that was addressed to the magistrate ; the judges were unanimously .of opinion that the evidence being precise and distinct was properly received. (iij) *878 *The following cases have since been decided with reference to the Walter's same subject. Where, on an indictment for larceny, the prosecutor ^*^^" stated that the prisoner, when binder examination before a magistrate, made a confession of his guilt, and was about to state it ; but, on refer- ring to the depositions returned, it appeared that the prisoner was there [w) Rex V. Harris, R. & M. C. C. R. 338, Lord Lyndhurst, C. B., Bosanquet, J., Taunton J., and Gurney, B., absentibus. Mr. Philiipps, 2 vol. Ev. 83, et seq., contends that if a pri- soner's statement, taken down in writing, is given in evidence against him, as containing an adtwasion of some fact, or a confession of guilt, and the magistrate has omitted to insert some other material part of his statement, the counsel for the Crown will not be allowed to supply the omission by the evidence of witnesses ; and mentions as the only authority in favour of this proposition Rex v. Mulvey, Lancaster Spr. Ass. 1831, Matth. Dig. 157. S. C. as Rex v. Maloney, Rose. C. E. 56. This case is stated immediately after Rex v. Uoore, post, p. 879, and the whole statement is, " but if it ought to have been taken down in writing and was not, it is admissible." Whether, therefore, there Avas any statement in writing by the prisoner, or at what time the statement proposed to be given in evidence was made, does not appear. Mr. Phillipps then proceeds to allege that Rex v. Harris " will be found, (m an attentive perusal, not to bear upon the point in question, nor even afford an argument against the proposition above maintained ; and, after stating the facts of that case adds, (in a note, p. 85,) " It is not to be inferred from this decision that parol evidence can be given of anything else that was addressed to the magistrate. The proposed evidence was receiv- able, being distinct (that is distinct from the examination produced, and distinct from the offence therein mentioned), that is quite different from its being in addition to the examination. The examination produced related to another offence, and was not admissible as evidence in this prosecution ; the only reason of its being produced doubtless was to show that the confes- sion, which it was proposed to prove by the cvidciice of the two witnesses, was uot included in the examination, but altogether omitted ; for that purpose, and that only, it was proper .and indispensable to produce the written examination. The point decided then was noth- ing luore than this, that parol evidence might be given of a confession made by a prisoner l)efore the committing magistrate, who took a written examination relating to other distinct charges, but which did not in any re.spect relate to the offence for which he was afterwards tried." It must be observed, however, that the learned author is in error in several points. In the first i>laco, the term " distinct" coupled as it is with '-'precise," means "plain, clear, and unequivocal," and not what is suggested. In the next place, the examination of Evans, which was in answer to the three' charges, all heard at the same time, only mentions " the sheep," without s])ec'ifying which of the three. In any view of the case, therefore, the judges must have h.eld that parol evidence was admissible, to show what sheep Evans men- tioned ; and as the evidence of the two witnesses strongly tends to show that the statement of Evans related to the sheep of Butler, the inference is that the judges held that it was allowable to add to the examination of Evans that he stated that the sheep therein men- tioned belonged to Butler. Lastly, as the examination of each of the prisoners was a, single statement " in defence" of three charges, the case does decide that parol evidence is admis- sible to add to the statement of each prisoner in answer to the charge of stealing Bennett's sheep ; and it is just the same as if the statemcut had been, " as to Pennell's sheep I say so and so; and as to the others I decline to say anything." C. S. G. CHAP. IV. § II.] EXAMINATIONS BEFORE MAGISTRATES. 878 stated to have said, "I decline to say anything;" Lord Abinger, C B., ^ was of opinion that the prosecutor's statement could not be received in evidence, (.t) Where three prisoners were taken before a magistrate at the same MoAe'e time OH the same charge, and each made a statenunt, which was taken *^**®" down by the magistrate's clerk, but he had left a blank whenever either •• of the prisoners had mentioned the name of either of the other prisoners, conceiving that such mention of the name was not evidence against the person so mentioned, and it was proposed to supply these blanks by the parol evidence of the clerk; Patteson, J., said, "I think I ought not to receive the parol evidence. I think that the rule ought not to be ex- tended. In the present case the statement professes to be a complete account of what took place; and I am of opinion that supplementary evidence ought not to be received." (^) So where an examination of a prisoner on oath was not allowed to be given in evidence, and it was proposed to give in evidence what the prisoner said M'hich was not taken down, and Rex v. IIarris,(?/^) cited; Gurney, B., said, << it is very dangerous to *admit such evidence, and I think it ought not to be done *879 in this case."(,-;) The general rule respecting confessions is that " a free and voluntary State- confession made by a person accused of an offence is receivable in evi- 1"^"*^ *"<' .,.,, /••! 1 remarks of dence agamst him, whether such confession be made at the moment he the prison- is apprehended, or while those who have him in custody arc conducting '^^ while him to the magistrate's, or even after he has entered the house of the nesses are magistrate for the purpose of undergoing his examination,"(a) or even being exa- whilst the witnesses are being examined against him, and it is only to°""^g^ the period of time during which the magistrate is taking the prisoner's bim. examination, that the written statement of the prisoner can apply. Any remarks or statements therefore made by the prisoner after the inquiry before the magistrate has begun, and whilst the witnesses are being examined, may be received in evidence, although the prisoner's examina- tion is afterwards taken in writing. Thus where one of two prisoners was committed before the other was apprehended, and the' depositions against that prisoner were read over before the magistrate to the other prisoner, and after they were read the prisoner went across the room to a witsess, who was called, and said something to him so loud that it might have been heard by the magis- trate, if he had been attending ; and the magistrate proved the exami- nation of the prisoners before himself, and the statement to the witness was not contained in it : Parke, J., held that what the prisoner had said to the witness might be given in evidence. (6) So " an incidental (x) Re.\ V. Walter,* 7 C. & P. 267. The ground of this decision is not stated, and it m.iy liavc been that the very learned Cliief Baron considered the evidence proposed as contradict- ing the statement of the prisoner returned by the magistrate, as the confession proposed to be given in evidence was said to Ke made " when the prisoner was under examination," and not during the time the witnesses were being examined against him. See the observation? in note [/)po-it, p. 880. (y) Reg. V. Morse,*" 8 C. & P. 605, ante, p. 856. (?/.y) Supra, note (to). [z) Ilex V. Lewis, = 6 C. & P. 161, ante, p. 856. Assuming the rejection of the examina- tion to have been correct, because it was on oath, the rejection of the parol evidence was clearly correct," as that statement was on oath also. C. S. G. ((z) Per Grose, J., in delivering the judgment of the judges in Lambe's case, 2 Leach, 552. [h) Rex V. Johnson and Spiers, Gloucester Spr. Ass. 1820, MSS. C. S. G. This case was relied upon at the trial of Rex v. Harris, supra, by the counsel for the crown. MS. C. S. G. . » Eng. Com. Law Reps, xxxii. 506. •> lb. xxxviii. 547.. « lb. xxv. 333. % 879 OF EVIDENCE. [BOOK VI* observation made by a prisoner in the course of bis examination before a magistrate, but which does not form a part of the judicial inquiry so as to make it the duty of the magistrate to take it down in writing, and which was not so taken down, may be given in evidence against him at the trial."(c) So where a man and woman were before the magistrates on a charge of burglary, and in the course of the examination of a wit- ness a glove was produced, which had bccu found on the man with part of the stolen property in it, on which the man said, " she gave me the glove but she knew nothing of the robbery ; the depositions hav- ing been put in, and the clerk of the magistrates having proved them, and there being no such statement in the deposition sor examination of the prisoner ; Erskine, J., held that what the man said might be proved by parol evidence. (rf) Parol evi- Parol evidence may be given of a question asked by a magistrate in denco of a ^j^ course of the examination of a witness, and of the prisoner's reply prisoner's . . , , , i i • i i ... K^'' answer to to it, neither the one nor the other being taken down in writing. Un a magis- j.jjg examination of a prisoner on a charge of murder, one of the wit- question nesses stated that she had bought a pot of the prisoner, upon which one while the of the magistrates asked what sort of a pot it was, and the prisoner, were being although the question was not particularly addressed to him, *made an examined, answer. It was submitted that no evidence could be given of what *880 passed before the magistrate except the depositions. Coleridge, J., " What the magistrate himself said would not be taken down. That may certainly be asked." It was then submitted that the statement made by the prisoner and signed by the magistrate must be put in be- fore it could be asked what the prisoner said, Coleridge, J., « There seems to be no necessity for putting in the written examination. It is not what the prisoner says when called upon for his defence that is asked, but an observation made in the course of the case, and as that would not be put down as part of his statement, I am clearly of opinion that it is receivable." The clerk to the magistrate then proved that he took down the examination of the witnesses, and that he took down what the prisoners said when they were asked what they had to say for themselves, but that he did not take down anything which either of the prisoners said before the witnesses had been all examined. Coleridge, J., " At the close of the evidence for the prosecution, the prisoner is asked if he wishes to say anything, and if he does, it is taken down, and the evidence of that statement is the written examination ; but if a prisoner says something while the witnesses are under examination, that does not stand on the same ground. I shall receive the evi- dence. "(e) Statement And so where there were two investigations by the magistrates who made by a committed the prisoner, and on the first occasion two witnesses were on the first examined, and a statement was made by the prisoner, and taken down day of his Jq writing, but it was not read over to the prisoner nor was he asked to ^thTiTbut" s^g^ ^*- '^^^ depositions of the witnesses were not taken formally till not re;- the second occasion, and the magistrate did not return with them the turned y gt^tement made by the prisoner on the first occasion ; but on the con- ic) Rex V. Moore, Matth. Dig. C. L. 151, Parke, B. [d) Reg. V. Hooper, Gloucester Sum. Ass. 1842. The clerk to the magistrates could not remember the observation, and it was proved by two policemen. MSS. C. S. G. (e) Rex V. Spilsbury,* 7 C. & P. 181. * Eng. Com. Law Reps, xxxii. 487. CHAP. IV. § II.] EXAMINATIONS BBPORB MAGISTRATES, 880 trary returned the following memorandum: "The prisoner, being ad- t'lo m-ig"""- vised by his attorney, declines to say anything." It was objected that as the magistrate returned that the prisoner had declined to say any- thing, it was not competent for the clerk, in contradiction of the magis- trate's own account, to give in evidence that which purported to be a statement made before the magistrate. But Littledale, J., and Parke, B., were both of opinion that the evidence was admi>jsible, although the magistrate might have neglected his duty in not returning what the pri- soner said. And Parke, B., added, " Let the effect of the evidence be what it may with the jury, it is clearly admissible. What a prisoner says is evidence against himself, whether the officer was right or wrong in not returning the statement, or furnishing a copy of it to the pri- soner." (/) If a written examination be produced on the part of the prosecution, as the examination of the prisoner taken in writing by the magistrate according to the statute, it has been said that the prisoner *is at liberty *88] to meet such evidence by contrary testimony, and to show that the writ- ten instrument is inaccurate. (y) The examination of a prisoner, when reduced into writing, ought toRigningby be read over to him, and likewise tendered to him for his signature, [rat^^nd*" And by the late statute('/t) the magistrate is expressly required to sub- tho prison- scribe it ; and it was usual so to do before the statute. The signature, '^'^• however, of the prisoner is not required by the statute, and is only for precaution and for the facility of further proof.(/) In Larabe's case,(m) Examina- the question referred to the opinion of the twelve judges was whether M''" f^\ an examination, taken in writing by a committing magistrate, contain- the prison- ing a confession of the prisoner's guilt, not being signed hy the prisoner ^^: ''"' °'^' or the magistrate, was admissible in evidence. The examination, after ^e correct, being taken in writing, was read over to the prisoner, who said, " It is all true enough :" but upon the clerk's requesting him to sign it, he said, " No : I would rather decline that." A majority of the judges were of opinion, upon principle as well as precedent, that the examination or paper writing was well received in evidence. Mr. Justice Grose, in delivering their opinion said, that it was clearly receivable in evidence at common law, and that there was nothing in the 1 & 2 P. & M. c. 13, and 2 & 3 P. & M. c. 10, to render it inadmissible. Surely, as the learned judge observed, if what a man says, though not reduced into writing, may be given in evidence against him, ayy/-<<'o/-i what he says, when reduced into writing, and afterwards admitted by parol to be true, is admissible. But where the clerk of the magistrate stated that he ^^^^^'^ ^^^ took down the examination from the mouth of the prisoner, and that it did not was afterwards read over to him, and he was told he might sign it or s'?".*''"*^' not as he pleased, and he declined to sign it; Wood, B., was of opinion c(,„.ect. (/) Reg. V. Wilkinson,* 8 C. & P. GG2. Rex r. Walter, ante, p. 878, was cited in siippoi ' of the objection, and the reporters observe that the only difference between the cases is that in Reg. v. Wilkinson, the statement was made on a different day from the statement which the magistrate returned, but it is conceived the true distinction between the cases is this^ that the statement by parol in Rex v. Walter, evidently was made at the same time as the state- ment returned by the magistrate, and was in effect a contradiction to it. In Reg. v. Wilkin- son, the statement proposed to be given in evidence was made the first day, and the state-, ment returned the second, the first therefore, could in no way contradict the latter state- ment. C. S. G. {j) 3 Stark. Ev. T87. [k) 7 Geo. 4, c. 64, ss. 2, 3. [l] 2 Phill. Ev. 79. [m) 2 Leach, 552. * Eng. Com. Law Reps, xxxiv. 574. 88] OF EVIDENCE. [BOOK VI. tbut the document could not be read. " In Lambe's case/' said the learned baron, '' the prisoner when the examination was read over to him, said it was true; and here, if the prisoner had said so, the case might have been different. "(«) Where the solicitor for the prosecution on the examination of the prisoner before a magistrate, at the desire of the latter, took minutes of the examination in writing which was read over to the prisoner, who said, " It is all true ;" but when they were read over to him again after an interval of a few hours, said that part of them was not true, and refused to sign them; it was held that these minutes might be read in evidence, (c) What IS the rj^j^g distinction in these cases appears to be, that if the prisoner admits ciistinctiOD in these the examination to be correct, the examination itself may be read in cases. evidence ; but if the prisoner declines to sign it, or does not admit it *882 to be correct, the written examination cannot be read in *evidence, but it may be used to refresh the memory of a witness who may state what the prisoner said. A statement made before a magistrate having been taken down in writing and read over to the prisoner, he was asked to sign it; he asked whether he was bound to sign it or not, and being told that he was not, he said he had rather not sign it ; and Littledale, J., was clearly of opinion, both upon the cases and on principle, that the examination was not admissible. (j>) So where the examination of a prisoner having been taken down in writing before a magistrate, he was neither asked to sign it, nor was it read over to him; Littledale, J., re- fused to allow the examination to be read in evidence. (5) So where a statement made by a prisoner before a magistrate was taken down by the clerk, and read over to the prisoner, but not signed by him, Patte- son, J., thought that it would be the more safe course that this exami- nation should not be read; but that the clerk to the magistrate by whom it was taken should refresh his memory from it.(r) But where a pri- soner was before the magistrate on two days, and all that he said the first day was taken down in writing and read over to him, and he was asked whether it was correct or not, and he said it was ; and on the second day he was asked to sign this statement, but he refused to do so; and it was objected that it was inadmissible, as he had refused to sign the examination; Bosanquet, J., said, " if minutes only of what a pri- (fl) Rex V. Telicote,* 2 Stark. N. P. C. 483. Foster's case, 1 Leivin, 46. Hirst's case, ibid. See also Rex v. Bennett, 2 Leach, 553, note (a). In Rex v. Jones, 7 C. & P. 239, upon an indictment for murder, the court allowed evidence to be given of the examination of the prisoner before a magistrate, taken at several times, and reduced to writing by him : the prisoner had declined to sign it, on its being completed and read over to him ; but acknow- ledged it contained what he had stated, although he afterwards said there were many inac- curacies in the statement he had given. The writing was not admitted as documentary evi- dence, but as a memorandum to refresh the memorj^ of the magistrate, who gave parol evi- dence of the prisoner's statement. (o) Thomas's case, 2 Leach, 637. See also Bradbury's case, ibid., 693, note (a). (p) Rex V. John Sykes, Shrewsbury Lent Ass. 1830. Lambe's case, and Rex v. Telicotc, ante, p. 881, were cited. MSS. C. S. G. (q)'Rexv. Samuel Wilson, Shrewsbury Spr. Ass. 1830, MSS. C. S. G. Neither in this case, nor in Rex v. Sykes, nor as far as appears in Rex t\ Telicote, was it proposed to give evidence by parol of what the prisoner said. The only point, therefore, decided in these I'ases was that an examination neither assented to as correct, nor signed by the prisoner, is not admissible as an examination duly taken under the statute by a magistrate. C. S. G. (r) Rex V. Pressly,"^ 6 0. & P. 183. It has been well observed, that in this case, " it was of no practical importance which course was adopted, but there appears no reason for treating a prisoner's examination, which, although not signed by him, complies with all the rcfjuisitions of the statute, as an informal document." Rose. Cr. Ev. 58. » Eng. Com. Law Reps. iii. 442. b lb. xxv. 345. CHAP. IV. § II.] EXAMINATIONS BEFORE MAGISTRATES. 882 soncr says are taken Jown, and not read over to him, although they could not be read as evidence against him, yet they might be used to refresh the memory of the witness as to what the prisoner said. In this case the prisoner admitted that the examination was correct; where that is the case I have always understood that it was a settled point that the examination should be received. "(n) Where the prisoner had been examined before the Lords of the l^xamina- Council, and a witness took minutes of his examination, which were do°,['iu "^ neither signed by him, nor read over to him after they were taken ; it writing, was held, that though they could not be admitted in evidence at a judi- ""'* p*"®^ cial examination, yt't the witness might bo allowed to refresh his me- tlio wit- mory \Yith them, and having looked at them, to state what he believed ^''^^^^' was the substance of what the prisoner confessed in the course of the '"^"'"'^^' examination. (/) And if an examination before a justice of the peace be taken in writing, under such circumstances of irregularity as preclude the writing from being itself given in evidence, yet it may be proved, as at common law, by some one who was present, as far as his recollec- tion will enable him to state, that he heard the prisoner make the con- fession, and if he were the person who wrote down the examination, he may refresh his memory *with it. Thus, where the prisoner had *883 refused to sign his examination before the magistrate, or to admit its truth ; Bayley, J., allowed parol evidence to be given of the prisoner's statement, and permitted the magistrate's clerk to read over the exami- nation to refresh his memory. (?/) And in another case, Bayley, J., did the same thing, and further held, that if the clerk who took it down at the time could, on referring to it, recollect its contents, he might read it.(i') And so where on an indictment for murder, the examination of the prisoner by the coroner was inadmissible on account of an irregu- larity in the mode of taking it, and thereupon, for the prosecution, it was proposed to ask the coroner what the prisoner said on the occasion of his examination; and this was objected to, as being properly the subject of the writing, and if that was not admissible, the inferior evi- dence of the witness's recollection must be rejected ; but Tindal, C. J., overruled the objection, and the coroner stated from memory so much of what the prisoner said as was inquired to.(ir) Where a prisoner had been examined before a magistrate, and his examination reduced into writing by the magistrate's clerk, but nothing appeared on the face of the paper to show that it was an examination taken on a charge of felony, or that the magistrates who signed it were then acting as magistrates ; Patteson, J., is reported to have said, " the clerk to the magistrates may be called to prove what the prisoner said, and refresh his memory from the paper. "(.») We have seen that the appropriate time for taking the examination Statement of a prisoner by a magistrate, is after the witnesses have been examined, ""?*^*' ^^ prisoner and he has heard what they have to say.(a:.r) A statement, therefore, before the made by a prisoner before that time, although taken in writing, is not, <"onrln,=ion v pniperly speaking, an examination within the 7 Geo. 4, e. G4, and con- mination of (s) Rex V. Uriah Daniel, jMoninonth Sjir. Ass. 1831, MSS. C. S. G. h) Layer's case, 16 How. St. Tr. 215. («) Dcwhurt's case, 1 Lc\v. 17. (v) Hirst's case, 1 Lew. 47. fw) Hex V. Reecl,» M. & .M. 403. (x) Rex I'. Tarrant,'' 6 C. & P. 182. (zx) Ante, p. 874. * Eng. Com. Law Reps. xxii. 341. •* lb. xxv. 345. 883 OF EVIDENCE. [BOOK VI. tho wit- sequently is not admissible in evidence as an examination of the prisoner. ucsses. jj^j.^ altiiougli an opinion was once intimated, that " nothing which a prisoner stated before he knew what the evidence against him was, ought to be used to criminate him."(_?/) Yet it is clearly settled that any statement made by a prisoner, before a magistrate, and taken in writing, though inadmissible as an examination, may be proved by the person who took it down, he refreshing his memory by the written paper. The prisoner and his younger brother had been in custody since the 17th of May, and various depositions had been taken between that day and the 21st, on which day several depositions were taken in the *884 presence of the prisoner, and the younger brother *was about to state a confession made to him by the prisoner on the previous evening, when the prisoner interrupted him and made a full confession of his guilt, which the magistrate's clerk immediately reduced into writing, and it was read over to the prisoner who put his mark to it, and it was attested by the clerk: " Taken and siyned by the said B., in the presence of," &c. On subsequent days, other depositions were taken, some of them in the presence, some in the absence of the prisoner. It was objected, that the confession was inadmissible, first because it was made before all the evidence was gone through, and on this point Rex v. Fagg(^3/) was relied upon ; secondly, that some of the depositions were taken in the absence of the prisoner ; thirdly, that there were interlineations and erasures; fourthly, that there was a false attestation; and lastly, that as the best evidence must be given, if the paper was inadmissible, the parol statement of the clerk was not receivable; but Gaselee, J., having consulted Lord Tenterdeu, C. J., said, ^'Lord Tenterden agrees with me, that the opinion of Mr. B. Garrow, in Rex v. Fagg, is much too general, as it would go to exclude any acknowledgment of guilt made by a pri- soner to a constable. He also agrees with me that the interlineations and erasures are cured by the attestation, which cannot be called a false attestation, though it would have been more regular to have said that the prisoner put his mark, as is customary in affidavits in the superior courts. We are both of opinion that it is no objection that some of the depositions were taken in the absence of the prisoner. We are also both of opinion that the confession may be repeated by the magistrate's clerk who heard it, and that he may refresh his memory by the aid of the written paper." (2) It must not An examination before a magistrate must not be upon oath ; and )io on oath. .yyi^gQ ^n examination previous to committal purports to have been taken upon oath, evidence has been held inadmissible, to show that in fact it was not so taken. (a) [y) Per Garrow, B., in Rex v. Fagg,^ 4 C. & P. 566. The statement of the prisoner in this case was made before the evidence in support of the charge had been gone through, and Garrow, B., strongly inclined to think it was inadmissible, and after making the obser- vation stated in the text, censured the taking such a statement from the prisoner. The censure might well have been spared, as it is undoubtedly the duty of the magistrate to take down whatever a prisoner may say of his own accord at anytime during the progress of the investigation of the case before him, and cases frequently occur where the prisoners volun- teer statements long before the witnesses against them have been examined. In Rex v. Mellor, Stafford Sum. Ass. 1833, each of the prisoners as soon as they got before the magis- trate, made a statement, and upon such statement each of them was convicted before Gur- ney, B. C. S. G. \yy) Supra, p. 883. (?) Rex r. Bell,'' 5 0. & P. 162. (a) Ante, p. 855. » Eng. Com. Law Reps. xix. 530. *> lb. xxiv. 256. CHAP. IV. § II.] EXAMINATIONS BEFORE MAGISTRATES. 884 It is said by Lord IIale,(^j) and upon his authority it is so hiid down Examina- ia the subsequent treatises ou the subject that au cxamijiation, taken .^ uy^^\s. before a magistrate, in order to be read in evidence against a prisoner trato how must be proved ou oath by the magistrate that took it, or the clerk that P''"^®"- wrote it, to have been truly taken. And where at the close of the case for the prosecution, the examina- tion of one of the prisoners was offered in evidence against him, and a person who was present, and saw the prisoner and the magistrate sign the examination, and heard the prisoner cautioned, was called to prove these facts ; it was objected, upon the authority of Lord Hale, that this writing was inadmissible, unless either the magistrate or his clerk proved that the examination was properly taken ; and Patteson, J., after say- ing that his own opinion was strongly opposed to such a doctrine, yielded, nevertheless to the authority of Lord Hale, and refused to admit the examination, but added, that had it appeared that the ques- tion had mainly turned upon the admission or rejection of the examina- tion, he would have received the evidence, and reserved the point, and that he by no means wished his present decision to be cited as a pre- cedent, (c) *Where on an indictment for larceny, it was proposed to put in the *885 prisoner's examination before the magistrate, and to prove it by a ^^'"''""''o" bystander j but the examination had the prisoner's mark to it only ; signaturo Lord Denman, C. J., refused to receive the evidence, unless it was and mark of proved by the magistrate or his clerk ; he observed that the necessity '^ P'"'^°°*'''- of proving the dejiositiou in this manner had been doubted, but the distinction appeared to him to be, that where the examination of a prisoner before a magistrate is taken down in writing and signed with the prisoner's name, it need not be proved by the magistrate or his clerk : but if not signed by him, or if his mark only be attached to, it is necessary to be proved by the magistrate or the clerk ; for if the prisoner signs his name, this implies that he can read, and that he has read the examination and adopted it. But if he has not signed it, or has only put his mark, there are no grounds to infer that he can read, or that he knows the contents, and no person can swear that the examination has been correctly read over to him, except the person who read it. (^cr\ But where a constable swore that he heard the prisoner make her Attesting statement, and saw the magistrate take it down, and that it was read ^''■°^'^' over to her by the magistrate, and she put her mark to it, after which (b) 2 P. C. 52, 84. (r) Rex V. Richards, 1 M. & Rob. 396, note. (\r) Rex *;. Chappel, 1 M. & Rob. 395, Aug. 11, 1834. In Smith's case, 2 Lew. 139, a writing purporting to be the exiiuiiuatiou of a prisoner, and to bear his mark, was tendered in evidence, and the magistrate's signature i)roved by a bystander, who stated that the clerk was writing wiien the prisoner was examined, and when the examination was (inished he repeated to tlie prisoner, apparently from the paper, what the prisoner had said, and the prisoner then put his mark to the paper ; but whether the prisoner's statement was taken down correctly, or at all, he had no means of judging. Rex v. Chappel was cited, but Parke, B., was disposed to admit the examination, as be thought there was suflicient jirimd facie evidence that the prisoner's examination was taken down in fact, as the law rc(iuire.^, and if so, licit it must be presumed to have been taken down correctly, and read over cor- rectly, until the contrary was proved. He conferred with Lord Denman, C. J., who enter- tained doubts about the propriety of his former opinion, and thought it fit for the considera- tion of the judges ; but as the examination was not essential in the ])resent case, Parke, B., rejected it, intimating that in any case iu which it was necessary he would admit it, and take the opinion of the judges. 885 OF EVIDENCE. [BOOK VI, the constable put his name to it as attesting the mark, and the magis- trate signed the examination as taken before him j but the constable did not see the contents of the paper which the clerk read over; Yaughan, J., and Patteson, J., were of opinion that the examination was suffi- ' ciently proved ; and Patteson, J., said that he was by no means satisfied that it was in any case necessary to call cither the magistrate or his clerk. Some of the books did indeed so lay down the rule, and he had reluctantly yielded to their authority on a recent trial on the Western Circuit ;(f/) not, however, without expressing great doubt as to the pro- priety of such a rule. The present case was, however, quite distinguish- able from that ; here, there was an attesting witness, who had been called to prove the fact which he attested. He was clearly of opinion that the examination, so authenticated, was admissible in evidence against the prisoner, (e) *886 There are, however, many cases, some decided previously and some It is not ne- subsequently to those which have been mentioned, which show that it call dther *^ ^^*^ neccssary to call either the magistrate or his *clerk, who took the magis- down the prisoner's statement, but that it is sufficient to call a person *r'^k t"^ ^'^ ^^^ ^^^ present, to prove the taking of the examination and the signa- prove the ture of the magistrate. (/) taking of Thus, where on an indictment for murder, it appeared that the pri- uation. soner's examination had been taken down by the magistrate's clerk, who was not present to authenticate it when produced at the trial; and it was objected, that it could not be received in evidence, although the magistrate before whom it was taken had signed it, and was present to prove his signature; Holroyd, J., held it to be sufficient, and it was read. ((7) And so where a constable, who was at the magistrate's whilst the prisoner was under examination, was in and out of the room back- wards and forwards, and absent at a time as much as two or three minutes together, but saw the examination signed, Bolland, B., held that the examination was admissible, as it must be presumed that the magistrate had done his duty.('7i) So where the examination produced purported to be the examination of the prisojier, and was signed by the magistrate and also by the prisoner ; but there was no proof either that it was taken from the prisoner's mouth, or that he had stated the facts that were contained in it; Parke, J., was of opinion, that the proof of the two handwritings was sufficient, and he allowed the examination to be read in evidence (^i) So where the only evidence in court, in addi- tion to proof that it was the examination of the particular prisoner, was that of a person who knew the magistrate's handwriting, by which the examination was authenticated; Bosanquet, J., and Alderson, B., inti- mated an opinion, that the statement might be read on proof of the magistrate's handwriting, on the ground that the law required the {d) Rex V. Richards, supra, note (c). \e) Rex V. Hope, 1 M. & Rob. 396, note. S. C. 7 C. & P.» 136, Feb. 4, 1834. In Rex v. Taylor, "7 C. & P. 136, note. Tried before Patteson, J., a statement made by a prisoner similarly proved was read without objection. (/) It should seem that proof of the magistrate's signature alone would not be sufficient, as that would only show that lie had signed the examination of a person of the same name as the prisoner ; but that there must be some evidence of the examination being that of the prisoner's. C. S. G. {g) Hobson's case, 1 Lew. 66, 1823. (A) Rex V. Thomas Haines, Shrewsbury Spr. Ass. 1830, MSS. C. S. G. (?) Priestley's case, 1 Lew. 74, 1831. * Eng. Com. Law Reps, xxxii. 468. CHAP. IV. § II.] EXAMINATIONS BEFORE MAGISTRATES. 886 magistrates to certify that it had been duly taken ; and Aldcrson, 13., likened it to the case of an affidavit, where proof of the magistrate's handwriting was evidence of the party's having been sworn. The learned judges, in reference to Lord Hale's doctrinc,(y) said, it could not be intended that the magistrate or his clerk must be called, on account of their office ; but that any one who could show that the exa- mination was duly taken would be sufficient. The oonfes.sion, how- ever, was not read, but the prisoner was convicted on other evidence. (A:) So where a prisoner's statement before the committing magistrate was proved by a witness, who deposed to the signatures of the magistrate and prisoner; Lord Denman, C. J., held that it might be given in "evi- *887 dencc without calling the magistrate or his clerk. (/) 80 where neither the magistrate nor his clerk were in court, but a constable swore that he was before the magistrate, and heard the statement of the prisoner read over to him by the clerk, and proved the handwriting of the magis- trate to the depositions returned to the court; Parke, B., allowed the prisoner's statement to be read in evidence against him.(^?») So where on an indictment for attempting to set fire to a house, it appeared that the prosecutor was present at the examination before the magistrate, and proved that the prisoner made a statement, which was taken down and read over to her by the magistrate, and to which she made her mark, and the magistrate signed it, and the prosecutor knew the exa- mination to be the same, as his own deposition, with his signature to it, was on the same piece of paper j Coltman, J., held that the statement might be given in evidence, without calling either the magistrate or his clerk, (ji) In all serious cases, however, it is expedient, as a matter of caution, I" 'eriona that the magistrate or his clerk should be called to prove the correctness ,n„j,i lb. xxxii. 633. "= lb. xxxii. 671. «» Ib.xli. 65. • lb. xxxviii. 67. ' lb. xli. 84. tion in evidence. 887 OF EVIDENCE. [BOOK VI. As to the Where the examination of a prisoner has been regularly taken, and "in tiie ^^ regularly proved, it is read by the ofl&ccr of the court. But where examina- the Written statement of a prisoner before a magistrate is inadmissible by reason of any irregularity in the taking of it;((/) or because the pri- soner neither assents to the correctness of the examination nor signs it;(r)the proper course is for the magistrate/s) or his clcrk,(i5) who took down the statement in writing, to refresh his memory with it, and state what the prisoner said. So where a statement is made before the time for taking the prisoner's examination, the proper course is for the person who took it down, to give evidence of what the prisoner said, refreshing his memory with his notes. («) *But if a statement is signed by a prisoner, or he makes his mark to it, it is the proper course for the ofi&ccr of the court to read it.(«M) Where the Where the examination of a prisoner, put in on the part of the prose- oxamina- cution, expressly refers to the deposition of a witness, the prisoner has prisoner ^ right to have that deposition read in explanation of his examination, refers to Qn the part of the prosecution, the examination of a defendant, taken sition of a before a magistrate, was put in, and in it the defendant stated, that the witness. deposition of a witness, which had been taken at the same time, and before the same magistrate, was correct. Patteson, J., held that the deposition of the witness might be put in and read as a part of the de- fendant's statement, although the witness had been examined on the trial as a witness for the prosecution, and although possibly his deposi- tion might have the eflFect of contradicting his evidence on the trial. (v) But unless the examination of a prisoner specifically refers to the depo- sition of a particular witness, putting in the examination of the prisoner on the part of the prosecution, will not entitle the prisoner to have any of the depositions read, although they were all taken before the prisoner made his statement. (? lb. xxiv. 256. <= lb. xix. 523. ^ lb. xxiv. 256. e lb. xix. 520. f lb. xxxii. 526. s lb. xxxii. 681. CHAP. IV. § III.] DEPOSITIONS. 888 The prisoner is not to be precluded from showing, if he can, that omissions have been made to his prejudice; for the examination has been used against him as an admission, and admissions must be taken as they were made, the whole together, not in pieces, nor with partial omissions. Even the prisoner's signature ought not to estop him from proving, if he can, such omissions ; if the truth is, that omissions wore made to his projudicOj the fact should be proved, and the prejudice no longer suffered to exist. (y) SECT. III. Depositions. As examinations and depositions before magistrates originate from Doposi- the same acts of parliament, and are in some respects guided by the ''""•'!'^*^'^^''° same decisions, it may be proper to consider the latter immediately after trafc's.' the former. "I" From what has already been mentioned, (or) respecting *the examinations before magistrates, it has appeared that by the 1 & 2 *889 P. & M. c. 13, and 2 & 3 P. & M. c. 10, justices of the peace were i & 2 P. "! yet from the ^^"'} *"" •' . '\j J kept away construction of the two former by the highest authorities, and upon by tiio general principles of evidence it may now be considered as a settled rule, r>"i^<^'ner. that if it be previously proved satisfactorily to the court, that the witness isdead(c)or that he has been keptaway by the practices of the prisoncr,('7) his deposition may be given in evidence on the trial of an indictment : provided the deposition were duly taken upon oath(e) in the presence of the prisoner, when charged before a magistrate. And it has been said ^Vitne.=3 that if a witness is prevented from attending by sickness or is unable to'!' "' ^l"l travel, his deposition maybe given in evidence. (ee) But it has been trial. (?/) 2 Phill. Ev. 85. [a] Anle, p. 872, ct seq. (6) Mr. Starke ia a very able note tu the case of Rex i\ Smith,* 2 N. P. C. 211, observes that the two statutes of Ph. & M. seem to have been passed without any direct intention on the part of the legislature to use the examinations and depositions as evidence upon the trials of felons. But tlie takinf? of them having been sanctioned by the legislature, they became, it seems, admissible in evidence upon the rules and principles of evidence already established; and tlie effect of the statutes iu point of evidence, seems to consist in removing an objection which would before have occasioned the rejection of such evidence, namely, that the proceeding was extra judicial. ic) 1 Hale, P. C. 30".. Bull.'X. P. 242. 2 Phill. Ev. 71. [d) Harrison's case, 4 St. Tr. 492, 5th Res. in Lord Morley's case, Kelwj-n, 55. Post. Disc. 337. (e) The statutes of Ph. k M. did not in terms require the informations to be taken upon oath : though it was considered necessarily incidental to the duty of a magistrate so to take them. But by the 7 Geo. 4, c. 64, ss. 2, 3. they are expressly required to be ui)on oath. [ee) 2 Phill. Ev."7l. 1 Hale, P. C. 305. 2 Hale. P. C. 52. However, this was doubted, upon very sensible grounds, by Mr. Starkie, 2 Evid. 383. In Lord Morley's case, supra, 6th Res., it was held that it was not sufficient to prove that all endeavours have been used in vain to find the witness. •)• [Tlu^re can be no depositions in criminal cases without the consent of the defendant The People v. Rcstcll, 3 Hill, 289.]. » Eng. Com. Law Reps. iii. 318. 889 OF EVIDENCE. [BOOK VI. since decided that if a witness be too ill to attend the trial, but there is a probability that he may recover, his deposition is not admissible. The prosecutrix was so near her confinement as to be unable to attend at the assizes, and it was proposed to prove her depositions before the magistrate, and 1 Hale, 586, Kel. 55, were relied upon ; Patteson, J., " That has been doubted by Mr. Starkie,(/) and I think the evidence is not admissible." ((/) Permanent But if there be a permanent inability to attend, (7;) as if the witness a"r n'd'^^ ^'^ ^^ ^^ '^^ *'^^^ there is no probability that he will ever be able to attend, his deposition is admissible. The prosecutrix was an old woman bed- ridden, and there was no probability that she would ever be able to leave her house again, and Gurncy, B., allowed her examination to be read, saying, there would be no use in putting off the trial till another assizes, as there was no likelihood of her ever being able to attend. (z) Where a witness, who was examined before the magistrate, and had *890 been bound over to give evidence, had since gone to *sea, and was not present at the trial, it was held that his deposition was not admis- sible, but upon the coensel for the prosecution consenting that it should be read, the court were of opinion that it might be given in evidence. (A/i) Witness Where a witness, who was examined before the magistrate, is insane insane at gj j-jjg ^jjjjg Qf jj^g trial, he is considered as in the same state as if he the time of ,, ti-i-- i • • -i /..\-r->- the trial, were dead, and his deposition may be given m evidence. (ii) But in such a case it should be shown that he was not insane at the time his deposition was taken. Where on an indictment for murder it was clearly proved that a witness who had been examined before the coroner was insane at the time of the trial, and had been so for some time pre- viously, but there was no evidence as to the state of the mind of the witness at the time when he was examined before the coroner; and it was proposed to give his deposition in evidence. Park, J. A. J., said, " there is one positive objection, that the witness might be insane when he was examined before the coroner ;" and the deposition was re- jected, (y) But where on an indictment for night-poaching and assault- ing W. Rickards, it appeared that he was suifering from delirium and depression of spirits in consequence of a blow on the head, and his in- tellects were affected by the injury, but it was probable that he would recover; it was held that if he was actually insane at the time of the trial, his deposition taken in the presence of the defendant was receivable in evidence, although the insanity might be temporary ; but the medical witness being unable to state that he was at the time of the trial in a state of insanity, the deposition was rejected.(^) (/) 2 Stark. Ev. 383. {(/) Rex V. Savage,^ 5 C. & P. 143, and MSS. C. S. G. The proper course in such cases is to move to postpone tlie trial upon an affidavit of the illness of the witness. Rex v. Os- born,'' 7 C. & P. 799, Bolland, B. C. S. G. (A) Per Tindal, C. J. Rex v. Edmunds, 6 C. & P., 164. (i) Rex V. Hogg,^ 6 C. & P. 176. Reg. v. Wilshaw,'! 1 C. & Mars. 145, Coltman, J., post, p. 898. [hh) Reg. V. Hagan,« 8 C. & P., 167, Bolland, B. and Coltman, J. (ii) Rex V. Eriswell, 3 T. R. 707, per Lord Kenyon, C. J., Ashurst, J., and Cxfose, J. (J) Rex V. Charles Wall, Worcester Sum. Ass. 1830. See this case more fully stated, post p. 893. In Rex v. Eriswell, supra, the pauper, whose examination was in question, had be- come insane after the examination was taken. {k) Reg. V. Marshall,f 1 C. & Mars. 147, Ludlow, Seijt., after consulting Coltman, J. It is not stated in the report when the blow on the head was inflicted. » Eng. Com. Law Reps. xxiv. 246. '' lb. xxxi'. 741. •= lb. xxv. 341. J lb. xli. 84. « lb. xxxiv. 338. lb. xli. 85. CHAP. IV. § III.] DEPOSITIONS. 890 It Ikxs been .^aid that the deposition of a witness bcj'ond the sea was ^Vitnoss admissiblo,(^] but it has recently been heM that the deposition of a wit- "ij^'^fj^j, ^,f ness, who had been examined before the magistrate, and who had since tho trial, gone to sea, is inadmissible. (»i) It is a general principle of evidence, that to render a deposition of any Doposi- kind admissible against a party, it must appear to have been taken on j"^"!* l""*^' oath in a judicial proceeding, and that the party should have had an ukuu, opportunity to cross-examine the witness. («) llencc a deposition be- fore a magistrate should bo shown to have been taken conformably to the statute, for otherwise it would be extrajudicial, (o) and to have been and in the taken in the presence of the prisoner, otherwise he could have had no '^'l!**,''"*"' . opportunity for cross-examiuation.f Thus in Woodcock's case, (whoBoucr. was tried for the murder of his wife,) where the magistrate, at the re- quest of the overseers, visited the deceased, who had received a mortal blow, and was then at the poor-house, and there in the absence of the prisoner, took her examination upon oath, and reduced it into writing ; it was held by Eyre, C B., that *such an examination was not admis- *891 sible as a deposition ; for it was not taken as the statute directs, in a ease where the prisoner was brought before a magistrate in custody ; the prisoner therefore had no opportunity of contradicting the facts it contained. (/)) So in Dingler's case,(5') where the magistrate, at the Dinglcr"» desire of the parish officers, went to the deceased at the Infirmary, to *'"®" which she had been taken for the purpose of i-eceiving medical assist- ance, and there in the absence of the prisoner^/-) took her deposition upon oath, which was reduced into writing, and her mark was set to it; the court, on the authority of Woodcock's case, held that the depo- sition was inadmissible. (s) And it has also been held since the 7 Geo. 4, c. 64, that a deposition is inadmissible if it be taken in the absence of the prisoner.(Q But where the greater part of the deposition of the deceased, in a case of murder, had been reduced into writing in the absence of the prisoner, but the deceased was afterwards resworn in the prisoner's presence ; and the deposition read over and stated by the de- (l) Bull. N. P. 242, and see ante, p. 817. (m) Recr. »'. Hagan,» 8 C, & P. 167, Bollaiul, R., and Coltman, J. (n) By Hullock, B., in Attorney General v. Davison, 1 M'Clel. & Y. 169. (o) Rex V. Smith,'' 2 Stark. N. P. C. 211, note (a) Ip) 1 Leach" 500. It was admitted, however, as a dying declaration. \q) 2 Leach, 561. (r) It may be remarked that in these two cases, independently of the absence of the pris- oner, the deceased being then alive, the charge of murder could not have been preferred : and as the stiitutcsdid not at thiit time extend to misdemeanors, the depositions might have been objected to as taken extra-judicially : but in Radbourne's case, 1 Leach, 457, a depo- sition of tlie deceased taken in the prisoner's presence was held by the twelve judges admis- sible on the triiil for murder. (») In addition to these authorities, may be mentioned the case of Rex v. Paine, in 1 Salk. 281. S. C. .") jMod. 163, cited by Lord Kenyon, in Rex. v. Eriswell, 3 T. R. 722, where upon ii conference between the judges of the K. B. aud G. P., it was held that the deposition of a deceased witness was inadmis.^ilde, " the defendant not being present when they were taken before the mayor and so had lost the benefit of cross-examination." It is remarkable, that iu the al)ove mentioned case of Rex v. Eriswell, Grose, J., and Buller, .1., were of opinion that depositions taken by a justice of a person M'ho .afterwards died, thou^rh taken in the Hl)sence of the prisoner, might be read, and the latter judge said it had been so determined by all the judges in Radbourne's case. But on reference to the report of that ca-^e 1 Leacli. 457, it will be seen that the depositions were taken in the presence of the prisoner. (<) Errington's case, 2 Lew. 142, Patteson, J. t [The State v. Webb, 1 Hayw. 105.] * Eng. Com. Law Reps, xxxiv. 338. •> lb. iii. 318. 891 OF EVIDENCE. [BOOK VI. ceased to be correct, and the rest of the deposition taken in the ordinary way, in the presence of the prisoner, who was asked whether he chose to put any questions ; it was held by Richards, C. B., that the deposi- tion was admissible, and a great majority of the judges upon a case reserved were of opinion that the evidence had been properly re- Russell's ceived.(?t) So where upon an indictment against the prisoner as an case. accessory before the fact of inciting S. Wormsley to murder herself, it appeared that Wormsley was sworn, and her examination taken in writing in the absence of the prisoner, but that she was afterwards re- sworn in his presence, the deposition repeated, and she said it was all true, and that she had made her mark to it. The prisoner then put some questions to the deceased, and the magistrate's clerk swore that a memorandum at the foot of the deposition contained the substance of every question put and answer given : that the memorandum at the foot of the deposition was written on the following morning bj the clerk *892 ^^ ^is oflBce in the presence of *the magistrate. The examination was objected to, as inadmissible under the 7 Geo. 4, c. 64, s. 2, being taken upon oath; but Vaughan, B., allowed it to be read, and also the inter- rogation of her by the prisoner, and her answer, which was also ob- jected to. And upon a case reserved, the judges were clearly of opinion that the deposition was inadmissible. (i^) Different In this respect there is a very striking difference between depositions rule as to jbefore a magistrate and before a coroner; for not only has it been set- bef^e\'i°c(f- tle<3> that if any witnesses who have been examined before the coroner roner. are dead or unable to travel, or kept out of the way by the means and contrivance of the prisoner, their depositions may be read on the trial of the prisoner,(w) but the prevailing opinion seems to be that they are equally admissible tliougli the prisoner may have been absent at the time of taking the inquisition. [x^ The reasons given for this distinc- tion usually are, that the examination before the coroner is a transac- tion of notoriety to which every one has right of access ;(2') and that the coroner is an officer appointed on behalf of the public to make in- quiry about the matters within his jurisdiction ; and therefore the law will presume the depositions before him to be duly and impartially taken, (.v) But these reasons and the authorities for the doctrine are (m) Rex V. Smith, Russ. & Ry. C. C. R. 339. S. C. 2 Stark. N. P. C.^ 208. Holt. N. P. C. 614. In a. previous case, Rex. v. Forbes,'' Holt, N. P. C. 509, where the constable stated, upon producing the deposition, that the prisoner was not present till a certain part of the deposition, distinguished by a cross, at which period he was introduced and heard the re- maining part of the examination^ and when it was concluded, the whole of the deposition was read over to the prisoner, Ohambre, J., refused to admit that part of the deposition previous to the mark. [y) Rex V. Russell, R. & M. C. C. R. 356, ante, vol. 1, p. 40. The objection to the deposi- tion was founded upon the fallacy of treating it as an examination of a prisoner, and of applying the rule that an examination of a prisoner upon oath is not admissible against such prisoner, to the deposition of a prisoner taken on oa,th, and used as evidence against another prisoner, in whose presence it was taken. G. S. G. i (w) Lord Morley's case, Kel. 55. Thatcher's case. Six T. Jones, 53. Bromwich's case, 1 Lev. 180. Gilb. Ev. 124. Rex v. Stockley, 1 East, P. C. c. 5, s. 78, p. 310, ante, vol. 1, p. 620. (x) 1 Phil. Ev. 372, 7th ed. Bull. N. P. 242. \y) 3 T. R. 722. 1 Phill. Ev. 373, 7th ed., but in the case of Garnett v. Ferrand, 6 B. k C. 611 ; the court expressed an opinion that the coroner might exclude particular persons, if he though it necessary and proper so to do. (z) Bull. N. P. 242. » Eng. Com. Law Reps. iii. 316. ^ lb. iii. 193. CHAP. IV. § III.] DEPOSITIONS. 892 certainly not at nil satisfuctory, and (as it has been remarked hy a very sensible writer, (a^ -who has collected and commented on the cases,) since the distinction is not warranted by the lanj^uago of the legislature, and is unfounded on principle, it may, when the fiucstion arises, be a matter of very grave and serious consideration whether it ought to be admitted, (6) *and another learned writer, having formerly expressed a *893 different opinion, observes, in his last edition, that "there appears to be no satisfactory reason why such a deposition should at the trial be received in evidence, under circumstances which would render every other kind of judicial depositions inadmissible. And it seems an unreasonable and anomalous proposition to hold that, on a trial for murder upon the coroner's inquest, a deposition taken before him in the absence of the prisoner, is receivable in evidence; but that if the trial take place on a bill of indictment, a deposition so taken before a magistrate is not receivable. The same principle which excludes in the one case, ought, if it is just and sound, to exclude also in the other."(c) A marked distinction exists between the situation in which a prisoner Bistinption stands, when he is before a magistrate on a charge of felony or misde- ^'''■'^'^''." 1, ,. °,. , . ° -iiT thcpo.sition raeanor, and when he is present during the time a coroner is holding of a priso- an inquest; and this distinction seems to have been acted upon in the "®'"*'^^°'° -,, . TT -T f t • 11 ** coroner lollowing case. Upon an indictment tor murder it was proved that a and a ma- witncss who had been examined before the coroner was insane at the gistrate. (a) 2 Stark. Ev. .385. (ft) The 1 & 2 Ph. k Mary, c. 13, s. 5, enacted, "that every coroner, upon an}' inquisition before him found, wliercl)}' any person shall be indicted for murder or manslaugiitcr, or as accessory before the murder or manslaughter, sliall put in writing the ejfrcl of the evidence given to the jury before him, being material, and shall certify liic same evidence, together with the inquisition or indictment before him taken and found at or before the time of the trial thereof to be liad." And by the 7 Geo. 4, c. G4, s. 4, (repealing the above mentioned statute,) it is enacted, " that every coroner, upon any inquisition before taketi, wiiereby any person shall be indicted for manslaughter or murder, or as an accessory before the fact shall put in writing the evidence given to the jury before him, or as much thereof as shall be material , and shall have authority to bind by recognizance all sucli persons as know or declare anything material touching the said manslaughter or murder, or the said offence of being accessory to murder, to appear at the next Court of Oyer and Terminer, or goal deli- very, or superior criminal court of a county palatine, or great sessions, at which the trial is to be, then and there to prosecute or give evidence against the party charged, and every xuch coroner xhall certifi/ and subscribe the same evidence, and all sucli recognizances, and also the in(iiiisition before him taken and shall deliver the same to the proper officer of the court in which the trial is to be, before or at the opening of the court." It will be observed that the principal alterations enacted by the latter statute are, that the coroner is to put in writ- ing the evidence in?;tead of the effect of the evidence, as directed by the former : and that he is required to subscribe the evidence when taken. (c) 2 Pliil. Ev. T.5. In the Tth ed., vol. 1, p. .372, et seq., the learned author had coiitcndctl for the admissibility of such depositions. Where in an action brought by the plaintiff against the defendant for running down his barge on the Thames, it appeared that a witness had been examined before the coroner on the inquiry concerning the death of the plaintiff's son, and since iiis examination had gone abroad ; it was proposed on the part of the defendant to read his deposition, taken on oath, before the coroner; and this was objected to on the part of the plaintiff; ('oleridge, J., was of opinion that under the circumstances fhe deposi- tion ouglit to l)e admitted, and l)eing properly proved, it Avas read in evidence. Fills v. Brown, 9 G. & P. (101. The report does not state whether the deposition was taken in the presence of the plaintiff, but probably it was, as he was the father of the deceased. It is probable, also, that the witness was produced by the father as prosecutor; but even if that were so, it is conceived that that would not make his deposition evidence against the father, the distinction being that an affidavit used by a party is evidence of the facts contained in it against such party, but neither the deposition nor the viva voce evidence of a witness is evidence against the partv calling the witness. Brickell r. Hulse. » 7 A. & E. 454. Gard- ner V. Moult,b 10 A. & E. 464. C. S. G. » Eng. Com. Law Reps, xxxiv. 144. '' lb. .xx.xvii. i47. Vol. II.— 58 893 OF EVIDENCE. [BOOK VI. deposition had been taken in the absence of the prisoner, and part in hi« presence, but the whole was read over in his presence ; and it was proposed to give this deposition in evidence, and 1 Phill. Ev. 369, 373, referred to, in order to show that the deposition was admissible where the witness had become insane ; and Rex v. Smith,((:Z) to show that reading the whole over in the presence of the prisoner rendered it admissible. Park, J. A. J., "■ There is one positive objection, that the witness might be insane when he was examined before the coroner. Secondly, the 7 Greo. 4, c. 64, makes a strong distinction between ma- gistrates and coroners. There is a charge made before a magistrate ; but I cannot call it a charge before a coroner. In Rex v. Smith the deposition was taken in a common felony, and there the question was, whether a deposition taken on one charge could be evidence on another. I will not receive this deposition. I think it safer not to do so."(e) *894 *If the depositions were duly taken in conformity to the statute, they Doposi- are receivable in evidence, after the death of the deponent, not only missiblo" upon the trial of the prisoner for the offence with which he was charged upon trial at the time they were taken, but upon an indictment for any other enroffe^^ce offence. Thus a deposition was held admissible in a case of murder, although it was taken when the prisoner had been brought before two magistrates upon a charge of an assault upon the deceased, and also upon a charge of robbing a manufactory which the deceased had been employed to guard. (/) Deposi- The statute does not require that the deposition should be signed by ^'ot^be ^"^ the person making it; nor is such signature necessary for its admissibility, signed by Upon an indictment for a rape, all the judges were of opinion that the deponent, (depositions of a girl, since deceased, upon whom the offence had been committed, taken on oath before the committing magistrate, might be read in evidence, although it was not signed by ]xQv.{g) Must be The magistrate himself, however, by the 7 Greo. 4, c. 64, ss. 2 & 3, trat™^"'^' ^^ required to subscribe the examinations and informations taken by him. One sig- Where the deposition of a prosecutor was regularly taken and read several de- over in the presence of a prisoner, and he had an opportunity of cross- positions examining the prosecutor, and two other witnesses were examined at ^° e sheet *^^ same time, and the depositions of all three were on the same sheet of paper, of paper, the prosecutor's being first, and there was only one signature of the magistrate, which was at the end of the last deposition, but not [d) Infra, note (/). (^e) Rex V. Charles Wall, Worcester Sum. Ass. 1830, MSS. C. S. G. The distinction taken by the learned judge seems deserving much consideration. The ground on which a deposi- tion before a magistrate is admissible is that the prisoner being there to answer a charge, has the right to cross-examine the witnesses. In many cases before coroners, even if the prisoner be present, there is no charge, and perhaps no suspicion against him, and it may be doubted whether in strictness under any circumstances he has a right to cross-examine the witnesses ; and if there were no charge in fact made against him, his interference would be an unwarrantable interruption of the proceedings. See the observations of Parke, B., in Melen v. Andrews, ante, p. 865. C. S. G. (/) Rex V. Smith," Russ. & Ry. C. C. R. 339. S. C. 2 Stark, N. P. C. 208. Eleven of the judges met. Abbott, J., thought the evidence ought not to have been received. Dallas, J., Graham, B., Richards, C. B., and Lord EUenborough stated that they should have doubted of the admissibility of the evidence, but for the case of Rex v. Radbourne, 1 Leach, 457, see supra, p. 891, note (r). [g) Rex V. Fleming, 2 Leach, 354, and see Rex v. Russell, ante, p. 892. * Eng. Com. Law Reps. iii. 316. CHAP. IV. § III.] DEPOSITIOXS. 894 ia terms confined to it, being "sworn before me;" it was held that after the proof by the magistrate's clerk of the manner in which it had been taken, the deposition of the prosecutor was admissible. (//) But where one Winter, who had been examined and cross-examined before On differ- the magistrates, died before the trial, and his depositions was duly <'"'■ ^1^°®*^- signed by the magistrates, but the cross-examination, which had taken place on a subsequent day, was not signed by the magistrates, but the depositions of two other witnesses on the prisoner's behalf, which had been taken at the same time with the cross-examination of AViiiter, were pinned up along with it, and tlie last sheet of the whole was signed by the magistrates; Aldcrson, 15., after consulting Parke, B., said, if the magistrate's clerk could state that the sheets were all pinned together at the time the magistrates signed the last sheet, he thought he must receive the whole in evidence, but neither the magistrate's clerk nor one of the magistrates being able so to state, the deposition as well as the cross-examination was rejected, although the magis- trate stated that all the sheets were lying on the table when he signed them. (A *And since, as in the case of examinations, it will be intended that *895 the magistrate, according to his duty, took the deposition in writing, I'arol evi- parol evidence of the information is inadmissible, till it is shown that jg^^^j"^^^ it was not reduced to writing. (y) "If the magistrate took the information regularly upon oath, in the Evidc-nee presence of the prisoner, and subscribed it, but instead of taking all "n the part that was material, as he ought to have done, in pursuance of the statute, crowa is omitted some material parts of the witness's statement, parol evidence not ad- of the parts omitted cannot be received: for the statement which has™,'?','^^® '" been omitted, though upon oath, and open to cross-examination, cannot rarj- n do- be received as part of a judicial proceeding, tlie magistrate not having I'"^'''^""* proceeded in conformity with the statutes, nor can such supplemen- tary evidence be received upon general principles. (/j) In the case of Ilex V. Thornton, (/) on a trial for murder, Mr. J. Holroyd ruled that parol evidence could not be admitted, either to add to or vary a deposi- tion. "(m) Where on an indictment for perjury, alleged to liave been committed [k) llegr. V. Osborne,* 8 0. & P. 113. Colerid) and therefore an information, v.hun judicially and regularly taken, may be used on the part of the prisoner, when the informant gives his evidence at the trial, to contra- dict his testimony. Thus it was admitted in Lord Stafford's case, (7) tliat the depositions of a witness, taken before a justice of the peace, might be read at the desire of the prisoner, in order to take(tff the credit of the witness, by showing a variance between the deposition and the evidence given in court vivd vocf. And not only on the part of the prisoner, but of the crown, depositions may be so used, even for the purpose of impeaching the credit of a witness called for the prosecution. Thus in Oldroyd's case,(r) where the counsel for the crown, by the Oldroyd'.s direction of the judge, unwillingly called the prisoner's mother, (hcr*^""' name being on the back of the indictment, as having been examined *by *897 the grand jury,) and her evidence was in favour of the prisoner, Gra- ham, B., ordered her deposition before the coroner to be read, for the purpose of affecting the credit of her testimony by showing its variance from the deposition. And the twelve judges held, that it was compe- tent for the judge to do so; and Lord Ellenborough, C. J., and Mans- lield, C. J., thought the prosecutor also had the same right. And where a witness for the prosecution, on being examined, gave aBnylo's. different account of the transaction from what he had deposed to before ''''*''*• the committing magistrate, and the counsel for the prosecution proposed to contradict him by proving the deposition, which was objected to on the part of the prisoner; Bayley, J., after consulting Holroyd, J., admitted the proposed contradiction. (.s) And so where a witness on the iiallott's trial gave a different account of the transaction from that which she '^'•^^^' gave before the magistrate, Coleridge, J., on the application of the counsel for the prosecution, allowed the two depositions made before by the witness before the magistrate to be identified as such, and then read to the witness, and she was examined upon them by the learned judge.(f) But where a witness, who had been examined before a magistrate, Tunni- eave a statement in court more favourable to the prisoners than that '"'"'* c •I'll case. which he had made before the magistrate, and it was proposed on the part of the prosecution to put in his deposition, and Oldroyd's case was ip) See the judgment delivered byGro.se, J., in Liimbe's case, 2 Leaeh, 558. 2 Phill. Er. 76. (7) 3 St. Tr. p. 131. 2 Phill. Kv. Id. (r) Russ. & Ry. C. C. R. 88. In Wright v. Beckett, 1 M. & Rob. 414, Lord Deuman, ('. J., after citing this case, observed, "This decision docs not ineur the danger of collusion, as the parties who conducted the prosecution neither called nor eontradicted the witne.=;.-. But it proves that a former declarution may be given in evideiue to contradiet what the .same witness has sworn to on the trial, notwithstanding the danger of the deelar.ition being believed, and acted on as evidenec in the eause ; and it pvei>ares the mind for eonsidering tlie very question now before us. For the proscentor would have undoubtedly been justified in expecting the evidence in court to agree with that given before the coroner, ami in sum- moning the witness into the box with that expectation. If he had done so, and had heard her with astonishment gainsay the deposition from which he examined her. conhi lie have been prevented from neutralizing the evidence, and defeating the attempted fraud, by laying that dei)osition before the jury?" See the cases collected in the section '"of impeaching the credit of witne.«ses." (s) Rex V. Boyle, cited in Wright v. Beckett, 1 M. k Rob. 422, by Lord Dennian. C. J., who added, ''I am bound to add that that eniiiienl judge has no remembrance of this decisiou. and find on debating the matter with him, that his present oi)inion is against it. But 1 cannot help thinking that Bex v. Oldroyd appeared to him when cited, as it docs to me, a conclusive authority for the principle now under controversy." (/) Reg. V. Hallett,* 9 C. & P. 748. * Eng. Com. Law Reps, xxxviii. 318. 897 OF EVIDENCE. [BOOK VI. relied upon; it was objected that the opinion there expressed was extra- judicial, and that the counsel for the prosecution had no right to call a witness, and in case he gave evidence against the jH-osecution to dis- credit him. Bolland, B., said '< I do not think the case cited is an express authority. I agree that I can only look at the deposition as destroying the credit of the witness, and therefore I shall not allow the Hall's case, deposition to be read."(M) So where a witness called for the prosecu- tion contradicted the prosecutor as to the fact of the prisoner having been at her house as stated by the prosecutor, and in order to do away with the effect of the evidence of the witness, which, if believed, dis- proved the whole case for the prosecution, it was proposed, on the part of the prosecution, to prove that the statements made by the witness before the magistrate, were wholly inconsistent with the account given at the trial; the evidence was rejected, and per Erskine, J., ' lb. 071. 899 OP EVIDENCE. [book VI • Every dc- It is the duty of magistrates to return to the court at which the pri ta^en bv a souer is to bc tried, all depositions that have been taken at all the ex" iniiKis- aminations that have taken place respecting the offence which is to be trate ought ^.j^^ subject of the trial. Where a witness was examined before a ma- tobe re- . •' i ^ • • turned. gistratc several times ; at the nrst exammation, no person was specifi- whethortho cally charged with the offence, but what was said was taken down in ■witness bo . •'. ° , , . . , . , i i -i • i bound over Writing; and this witness was taken into custody, and while m custody or not. ^ as an accused person he made another statement, which was also taken down by the same magistrate ; and on a subsequent day, the present prisoner having been apprehended, the witness was again examined as a witness; Alderson, B., observed, "I have none of these depositions but the last. Every one of them ought to have been returned to me, as it is of the last importance that the judge should have every deposi- tion that has been made, that he may see whether or not the witnesses have at different times varied their statements, and if they have, to what extent they have done so. Magistrates ought to return to the judge all the depositions that have been made at all the examinations that have taken place respecting the offence which is to be the subject of the trial."(e) *900 And it is equally the duty of the magistrate to return the depositions of witnesses who are not bound over; as, for instance, the depositions of witnesses called by the prisoner to prove an alibi.(^f) But if the de- position of a witness has been taken after the prisoner has been commit- ted, and in his absence, such examination ought not to be returned as one of the dcjjositions, for nothing should be returned as a deposition against a prisoner, unless the prisoner had an opportunity of knowing what was said, and an opportunity of cross-examining the person making the deposition. ((/) Of the ex- It is highly expedient to the furtherance of the ends of justice, that P®j^.'''°''y°^ whenever prisoners offer to produce witnesses before the magistrate, in returning answer to the charge made against them, such witnesses should be regu- the exami- Jarly examined on oath, and their statements taken down in writing, the prise- ^od returned with the depositions. Whether the evidence so adduced ner'swit- \,q true OF false, it is very important that it should be received and taken down. If it be true, it may be so clear, positive and distinct as to explain or contradict the evidence adduced in support of the charge, in such a manner as completely to satisfy the magistrates that there is <' no sufficient ground for judicial inquiry" into the guilt of the party charged ; in which case he ought to be discharged ; or the evidence " adduced on behalf of the party charged" may, in the opinion of the magistrates, " weaken the presumption" of the party's guilt, but there (e) Rex V. Simons,» 6 C. & P. 540. (/) Rex V. Fuller,'' 7 C. & P. 269. Vaughan," J. {fj) Per Lord Denmau, C. J., Reg. v. Arnold,'^ 8 C. & P. G21. Strictly speaking, the words of the very learned Chief .Justice ouly shows that such an examination should not be re- turned as a deposition, and it may pcrhaijs be going too far to infer from them that such a .statement should not bc returned at all. It is conceived if the examination, however irregu- larly taken, were signed by the witness, It might be used for the purpose of contradicting him, in the same way as any other instrument signed by him. It is conceived that magis- trates have no jurisdiction to administer an oath after a prisoner has been committed, and in his absence, and that it may admit of doubt whether the administering such an oath would not render a magistrate liable to indictment under the 5 & 6 Wm. 4, c. 62, s. 13. See Peg. '•. Nott,d 1 C. & Mars. 288, ante, p. 073. Woodcock's case, 1 Leach, 500, and the judgment of Grose, J., in Rex v. Eriswell, 3 T. R. 707. C. S. G. * Eng. Com. Law Reps. xxv. 532. *> lb. xxxii. 506. ' lb. xxxiv. 556. ^ lb. xli. 161. CHAP. IV. § III.] DEPOSITIONS. 900 may <' notwithytuuding appear to tliciii to be sufficient grouud for judi- cial inquiry" into the party's guilt; in which case the magistrates should admit the prisoner to bail. (A) And even if the evidence so ad- duced should not produce cither of these results, still it is important for the sake of the prisoner, that his witnesses should be examined, and their depositions returned, as he is thereby freed from the suggestion often made at the trial, that the case endeavoured to be proved before the jury has been concocted since the examination before the magistrate; and if, as has been suggested,(i) the deposition of a witness, examined on behalf of a prisoner before the magistrate, would be admissible in evidence for the prisoner on his trial, in case of the death of such wit- ness, it is but reasonable that the prisoner should have the depositions of his witnesses taken, in order to be used in case of such an event. On the other hand, if the evidence adduced be false, it is essential for the ends of justice that it should be heard and taken down, in order that the prosecutor may have the means before the trial of investigating the facts deposed to, and the opportunity of testing the statements of the witnesses, by comparing those made on the trial with those made before the magistrate ; and, moreover, the taking the depositions would serve as a *check upon the prisoner, against setting up a different 901 defence on the trial, and upon the witnesses against improving their tale between the time of their examination before the magistrate and the trial. (/) Depositions are also sometimes taken in criminal cases, by the con- Deposi- sent of the prosecutor and defendant, when a material witness is about j„fp^^j,gj^_ to leave the country, or resides abroad. (7) But if the trial comes on torios by before his departure, or after his return, the depositions cannot be •=°°^*'°*- read.(/^) Where an indictment or information is exhibited in the King's Bench, pcpositioni for an offence committed in India, the depositions of the witnesses may be obtained under the provisions of the 13 Geo. 3, c. 63, s. 40, and s. 44. This statute enacts, that the court may award a writ of mandamus to the judges of the courts in India, as the case may require, for the ex- amination of witnesses, who are to be examined publicly in the court, upon oath administered according to the form of their several religions ; and these depositions duly taken and returned, in the form prescribed by the act, are to be allowed, and deemed as good and competent evi- (h) See the 1 Geo. 4, c. G4, s. 1, ante, p. 873, note (e), which shows what the duties of magistrates are in these circumstances. (i) See the reporter's note, 7 C. & P. 270. (i) Amonf^ the numerous cases which liave given rise to these remarks, the following may be mentioned : A i)risoner was indicted for stealing a number of watches at Cheltenham ; wlien taken before the magistrates, he produced a numlter of witnesses from lyondon, ami I)roposed to have thum examined ; this was refused ; and upon the trial he produced the same witnesses, and their evidence, if true, proved that at the time the -waicheswerc stolen, the prisoner and the witnesses were dining at a particular house in London, keeping the wedding day of the occupier of the house ; on the part of the prosecution nothing ^ya.^ known of the witnesses or the house, and consequently there was little means for testmg tlieir credibility; the result was that the prisoner was acquitted ; and in a short time after- wards it was well ascertained that the whole story was a fabrication, and might easily have been proved on the trial to have been such, if it had been known that such a defence had been intended, and that must have been known if the witnesses had been examined before the magistrate. C. S. G. (J) Ile.x I'. Morphew, 2 M. & S. 602. The Court of K. B., allowed them to be read, on an indictment for perjury, l)y consent of the defendant. Anon. 2 Chit. R.* 199- (A) Tidd. 362. 2 Phill. Ev. 94. * Eng. Com. Law Reps, xviii. 305. 901 OF EVIDENCE. [bOOK VI. dence, as if the witnesses had been sworn at the trial, and examined viva voce. In cases In a case of a prosecution for an offence committed abroad by any of <'ff®"°^s person employed in the public service, the depositions of witnesses by public resident abroad may be obtained in the way pointed out by the 42 Geo. servants 3 q- §5, abroad. ^902 *CHAPTER THE FIFTH. OP WITNESSES. WHAT FACTS WITNESSES MAY DISCLOSE, AND WHAT ARE PRIVILEGED COMMUNICATIONS. — HOW WITNESSES ARE TO BE EXAMINED. — HOW THE CREDIT OF WITNESSES MAY BE IMFEACHED. HOW MANY WITNESSES ARE SUFFICIENT. — HOW THE ATTENDANCE OP WITNESSES IS TO BE COMPELLED AND REMUNERATED. — OF ACCOMPLICES. — AND WHAT WITNESSES ARE COMPETENT TO GIVE EVIDENCE. SECT. I. Of privileged Communications, and other matters ivhich a witness may not disclose.'\ Privileged A WITNESS is to be sworn to speak the truth, the lolwle truth, and oations.°^" J^ot^J^g ^ut the truth. But this form of oath, absolute as it seems, must be taken with an implied reservation, that the witness is not to disclose any facts within his knowledge, which, by the law of the land, founded on considerations of justice, and of public policy, he is forbid- den to make known. Of such a nature are professional communications between a client and his attorney, solicitor, or counsel, and matters con- nected with the government of the country. (a) Between The law attaches so sacred an inviolability to communications be- chent and tween a client and his legal advisers, that it will neither oblige nor suf- Jittorncv or n o / o counsel. f^r persons so employed to reveal any facts confidentially disclosed to them at any period of time, neither after their employment has ceased *903 by dismissal or otherwise, nor after the cause *in which they were en- gaged is entirely concluded. (5) The privilege of not being examined on such subjects is the privilege of the client, and not of the attorney or counsel :(c) and it never ceases. "It is not sufficient,'' said Mr. J, (a) It seems, however, to have once been thought necessary to vary the form of the oath on an occasion of this sort. In the case of Spark v. Middleton, 12 Vin. Abr. Ev. B. a, 4, p. 38. 1 Keb. 505. Mr. Aylott having been counsel for the defendant, desired to be excused to be s\yorn on the general oath as witness for the plaintiff to give the whole truth in evi- dence, which the court, after some dispute, granted, and that he should only reveal such things as he either knew before he was counsel, or that came to his knowledge since by other persons ; and the particulars to which he was to be sworn, were particularly pro- posed, viz, what he knew concerning the will in question ; whether he knew any thing of his own knowledge. (b) Lord Say and Scale's case, 10 Mod. 41. Wilson v. Rastall, 4 Term. Rep. '753, in the judgment of BuUer, J., Sloman v. Heme, 2 Esp. N. P. C. 695. Rex v. Withers, 2 Campb. 578. Parkhurst v. Lowten, 2 Swanst. 194, 221. Richards v. Jackson, 18 Ves. 474. (c) 10 Mod. 41. Bull. N. P. 284. But if the client waive his privilege, the witness may f {See on the subject of " Confidential Communications," 2 Stark, Ev. 395 — 400, and cases, American and English, there cited in notes.] CHAP. v. § I.] OF PRIVILEGED COMMUNICATIONS, ETC. 903 B'jller,(c7) " to say that the cause is at an end : the mouth of such a person is shut for ever." And it makes no difference that the client is not in any shape party to the cause before the court. (<") The privik'gu is strictly confined to coninmuifations made to counsel, Rule con- solicitors, and attorneys. (/) No other, however confiilential, or what- "|^ ^^^j^^' ever be the relation or employment of the party entrusted, are privileged, urs. Therefore all other professional persons, whether physicians, surgeons, or clergymen, are bound to disclose the matters confided to theni.(;/) Thus, where the prisoner, being a Papi.st, had made a confession before a Protestant clergyman of the crime for which he was indicted, that confession was permitted by Buller, J., to be given in evidence on the trial, and the prisoner was convicted and executed. (A) So a confession to a Popish priest has been held not to be privileged. (/) Parkins v. Hawkshaw,^ 2 Stark. 239. {q) Taylor v. Forster,'' 2 0. & P. 195. See Webb v. Smithj-^ 1 C. & P. 337. (r) Foole v. Hayne,tec- ",ij^,jjji^,ng ' tion. A very eminent writer on the liaw of Kvidcnccrj/) has laid it between down, tliat the privilege of the client is not confined to cases only where ||[,j"^"^7nt he has employed the attorney in a suit or cause, but extends to all such are jirivi- communicatious as are made by him to the attorney in his professionul'^S*-'*^' character aid with reference to professional business. And this opinion has been confirmed by the Court of (Common Pleas, in the case of Cromac'k v. IIeathcote,(^) where it was held that an attorney, to whom an application had been made to draw an assignment of goods which he declined to do, could not be allowed to disclose that circumstance, a question having arisen whether an assignment subsequently drawn by another attorney, was fraudulent. And in that case a very learned per- 8on(aj said, th;it If an attorney were to be consulted on the title to an estate, he would not be at liberty to disclose any information thus com- municated to him to the prejudice of his client. And Sir J. Leach, Vice Chancellor, in Walker v. Wildman,(Z') considered the protection, to ex- tend to every communication made by the client to his counsel, or at- tornc}', or solicitor, for professional purposes. (r) And although Lord Tenterden, C. J., on several occasions, both before and since the case of Croinack v. Ileathcote, expressed at Nisi Prius, a contrary opinion ;(ord Chancellor Brougham, Tindal, C. J., Lord Lyndhnrst, C. B., ai. I Parke, B., in (irecnougli r. (Jaskell,'' Mylne & K. 'JH, as stated 4 B. & Ad. isTG, per Parke, H. [(/) Doe d. Shellard v. Harris,* .'j C. & P. 592. Tiie learned baron also held in the same case tliat the attorney could not be a.sked whether the party had asked his advice for a law- ful or for an unlawful purpose saying "there is a great deal of dillictilty in the witness's disclosing whether the conference between him and his client was for a lawful or unlawful ])urposc, without one being told what it was. It might be that the party asked if a p.ir- licular thing could legally be done." The learned baron also said, that Williams »'. Mundie war overruled by Greenough t>. Gaskell. In Bowman t'. Norton, "^ 5 C. & P. 177, Tindal, (.'. « Eng. Com. Law Reps. vi.l. •> lb. vi. 2. Mb. x.xi. 375. d jb. xxiv. 178. ' lb. .xxiv. 468. < lb. xxiv. 265. *906 OF EVIDENCE. [BOOK VI. The rule *In a late case,(/tj Aldcrson, B., said, "The rule seems to be correla- tivo°wHir" ^'^'^^ ^^^^ *^^* which governs the summary jurisdiction of the courts that which over attornies. In Ex parte Aitken,(») that rule is laid down thus: govorns < "Where an attorney is employed in a matter wholly unconnected with mary juris- his professional character, the court will not interfere in a summary way iliction of ^Q compel him to execute faithfully the trust reposed in him ; but where over attur- tbe employment is so connected with his professional character, as to "^ys- afford a presumption that his character formed the ground of his em- ployment by the client, there the court will exercise this jurisdiction." So where the communication made relates to a circumstance so con- nected with the employment as an attorney, that the character formed the ground of the communication, it is privileged from disclosure. Thus On sale of communications made in relation to the sale and purchase of estates are es a es. protected ; an attorney, therefore, who had been employed in the pur- chase and sale of estates, cannot be asked as to a communication made to him by the party who employed him. (J) So an attorney who, being resorted to by a borrower to raise money for him, peruses on the part of the proposed lender, the abstracts of the borrower, is not allowed to give evidence concerning them.(/.-) The privi- A communication made to a solicitor, if confidential, is privileged in te'^d^t 11 whatever form made, if it would be privileged when communicated in knowledge words spoken or written, it will be privileged equally when conveyed by however means of sight instead of words. (/) For the privilege extends to all knowledge that the attorney obtains, which he would not have obtained but for his being consulted professionally by his client. (??i) not°allow- ^^ attorney will not be allowed to produce a deed which has been od to pro- deposited with him confidentially in his professional character; and if iiient &" ^^^ deed has been obtained out of his hands, for the purpose of being deposited produced in evidence by another witness, it cannot be received. Thus with him ^ copy of a deed which had been obtained from one who had formerly ont. been entrusted with the original in his professional character as an at- *907 torney, is not good secondary *evidence against his client. (?«) But this ./., held that a conversation between a client, who afterwards became bankrupt, and his attorney's clerk, on the subject of his affairs, was a privileged communication, and could not be given in evidence in an action by his assignees for the purpose of showing his mo- tives. (A) Turquand v. Knight, 2 M. & W. 98. (t) 4 B. & Aid.* 47. See also Bx parte Yeatman, 4 Dowl. P. R. 304. (/) Mynn v. Joliffe, 1 M. & Rob. 326, Littledale, J. [k) Doe d. Peter v. Watkins,'' 3 Bingh. N. C. 421, and per Tindal, C. J., " It would be of dangerous consequence if where the same i^rofessional man is resorted to by lender and borrower he is permitted to disclose the communications made to him on either side." And see Taylor v. Blacklow,'= 3 Bingh. N. C. 235. [l) 1 Phill. Ev. 169, citing Robson v. Kemp, 5 Esp. R. 54, where it was held that an attorney could not give evidence as to the fact of the destruction of an instrument, which he had been admitted in confidence to see destroyed. In Wheatley v. Williams, 1 I\I. & W. 533, it was held that an attorney is not compellable to state when examined as a witness, whether a document-shown to him by bis client in the course of a professional interview, was then in the same state as when produced on the trial, e. g. whether it was then stamped or not; and jser Lord Abinger, C. B., "Suppose an attorney, when searching for a deed belonging to his client, found another deed which might operate to the client's prejudice, can it be said that he would be bound to produce it? If, therefore, a document be exhib- ited to the attorney in pursuance of a confidential consultation with his client, all that ajjpears on the face of such document is a part of the confidential communication.'' {m) Per Alderson, D. in Wheatley v. Williams, supra. \n) Fisher v. Heming, MS. 1 Phill. Ev. 170, Bayley, J. See also Copeland v. Watts,^ 1 Stark. N. P. C. 95. * Eng. Com. Law Reps. vi. 344. •> lb. xxxii. 187. " lb. xxxii. 100. dib. ii. 311 CHAP. V. § I.] OF PRIVILEGED COMMUNICATIONS, ETC. 907 case has been doubted. (nji) Where a vendor had a draft of conveyance I^^e «'• made by his own attorney, from which the deeds wore afterwards pre- ''®***"^* pared, and the attorney was paid for his business by the vendor and purchaser in moieties by agreement, but the latter employed an at- torney on his own part to look over the draft ; which remained after- wards with the vendor's attorney ; the Court of King's Bench held that such draft was confidentially deposited with the latter by the purchaser as well as the vendor, and could not be produced on a trial against the interest of the purchaser's devisees, though with the consent of the ven- dor and his attorney. ('>) And even if an attorney has on one occasion Nixon v. produced a deed entrusted to him by a client under the erroneous com- ^"-^ "''" pulsion of one tribunal, he will not be bound to produce it before another tribunal. An attorney who had received a deed from his client, had been compelled to produce it by commissioners of bankrupt, and had afterwards received it back from them under an undertaking to produce it again if required ; but Tiudal, C. J., held that the production of the deed had originally been improperly obtained from the witness by the commissioners, and that he might refuse to pi-oduce it in action brought by the assignees of the bankrupt, under whose commission he had been compelled to produce it.(^>) So on a prosecution for the forgery of a promissory note, an attorney Smith's who had acquired possession of the note in his professional character p"'*^' i from the prisoner, was not compelled or allowed to produce it, although note. subpoenaed so to do, and although he was not employed professionally for the prisoner at the trial, but was originally consulted about the note, for the purpose of suing the party upon it whose name was charged to be forged. (r^) But this case has since been doubted. On an indictment Avery's for forging a will a solicitor stated that he was applied to by the pri- y^""*"'' ^ soner to act as his solicitor in raising some money; and that he was the will, solicitor of the prisoner in raising the money as well as of Williams in the advance of it ; that the prisoner made an application to him ; it was objected that this was a privileged communication, as the party was the solicitor for the prisoner, and the preceding case was relied upon. Pat- teson, J., " I think that the case cited is not law; and that the solicitor may be examined to show what was the transaction between the parties, and what led to that transaction ; but I will reserve the point for the consideration of the judges, if I should hereafter think it necessary to do so." The witness then stated that the prisoner proposed to mortgage some land, which had been left him by his aunt, and that the prisoner told him the title deeds had been burnt, but that he gave him a paper which he said was his aunt's will. It was again objected that as the will had been delivered to the witness by the *prisoner while he was *908 attorney for the prisoner, he ought not to produce it ; Patteson, J., " I (nn) •' T have ahva}-s doubted tbe correctnes.=5 of that ruling. Where an attoriK} , in- tru.-^ted confidentially with a document, communicates the contents of it, or suffers another to take a copy, surely the secondary evidence so obtained may be produced. .Suppose the instrument were even stolen, and a correct copy taken, would it not be reasonable to admit it?" per Parke, B., in Lloyd v. Most}Ti, 10 M. & W. 478, where it was held that u copy examined with a bond, produced for the purpose of admission under a judge's order, wn.s admissible, although the attorney who held the bond was not bound to produce it on the trial. (o) Doe d. Strode v. Seaton,* 2 A. & E. 181. (p) Nixon w. Mayoh, 1 M. & Rob. 76. (q) Rex V. Smith, cor. Holroyd, J., MS. 1 Phill. Ev. 171. ' Eng. Com. Law Reps. xxix. C2. 908 OF EVIDENCE. [bOOK VI. think be is bound to do it." The will was produced and read, and it M'as the will that was alleged to be forged. (r) In the case of Ilex ('. Dixon (.s) it was held by Lord Mansfield, and the rest of the court, that an attorney, who had been served with a subpoena duces tecum out of the crown-office to produce certain vouchers which his client, a Mr. Peach, had exhibited and relied upon before a master in chancery, and which subpoena had been served on the attorney in order to found a prosecution for forgery against his client, was not Counsel bound to produce these required vouchers. (^) A barrister cannot be called to prove what was stated by him on a motion before the court.(M) Attorney- And the attorney-general, if questioned as to the reason for filing an ex (renera . q^^io information, may refuse to answer, (^t) How far The privilege does not attach to everything which the client says to ihepnvi- iijg attorney ; the test is, whether the communication is necessary for lege ex- /, • , i-- i-ii • tends, and the purpose of carrying on the proceedmg in which the attorney is em- as to what ployed ', if it is ncccssary it becomes privileged, (?i-) but if it is not it attorney iii^y be discloscd. Thus an attorney may be examined like any other may be ex- witness to a fact which he knew before his retainer, that is before he **"' ■ was addressed in his professional character, (ic) or where he has made himself a party to the transaction, (_y) or where he is questioned to a collateral fact which he might have known without being intrusted as the attorney in the cause, (s) Thus he may prove his client's hand- writing though the knowledge was obtained from witnessing his exe- cution of the bail bond in the action. (a) And he may be called to prove (r) Reg. V. Avery,* 8 C. & P. 596. The indictment charged the intent to be to defraud Williams and the attorney iu different counts. The prisoner was convicted, but no sentence passed on the indictment for forgery, the prisoner being sentenced on an indictment charg- ing the transaction as a false pretence. Mr. Phillipps, vol. 1, p. I7l, observed, that " the distinction between this case and Rex. v. Smith, is obvious. In Reg. v. Avery, the prisoner deposited the instrument in the hands of his solicitor, not with reference to a suit, nor with reference to any transaction resting solely between themselves, but for the purpose of a money transaction between himself and a third person, and to be disclosed and communi- cated to that person. In the case of Rex v. Smith, on the contrary, the instrument was deposited with the solicitor for the purpose of a suit in which he consulted him pro- fessionally as a matter in confidence between him and his solicitor, and solely for his own interest. The two cases, therefore, are not inconsistent, and the one does not overrule the other." (s) 3 Burr. 168?, cited by Lord Ellenborough, in Aniey v. Long, 9 East, 485. (t) See also Laing v. Barclay,'' 3 Stark. 38, where it was held by Abbott, C- J., that a solicitor under a commission of bankrupt, was not bound to produce the proceedings under the commission in a collateral action, where the production might tend to the detriment of his clients ; see also Harris v. Hill,<= 3 Stark. N. P. C. 140. S. C. 1 Dowl. & Ry.-i N. P.C. 11. Rex V. Upper Boddington,^ 8 Dowl. & Ry. 726. (m) Curry v. Walter, 1 Esp. 456, cor. Eyre, C. J., who said it was at the option of counsel whether he would give his testimony or not. A court of equity will compel the production of a case submitted to counsel, but not his opinion on it. Preston v. Carr, 1 Younge & Jervis, 175. {>:) Rex V. Home, 11 St. Tr. 283. («■) Fer curiam Gillard v. Bates, 6 M. & W. 547. There an attorney was sued for work and labour in issuing an execution, and the defence was that he was employed by B., and not by the defendant, and it was held that the plaintiff's agent, an attorney, might be asked whether the plaintiff had not said, on introducing B. to him, that he, the plaintiff, had been employed by B. to issue the execution in question,- and that this was not a privileged com- munication. (x) Guts V. Pickering, 1 Yent. 107. Lord Say and Seal's case, 10 Mod. 41. 1 Phill. Ev. 166. (;y) Dufiin v. Smith, Peake, N. P. C. IDS. Robson v. Kemp, 5 Esp. 52. (z) Bull. N.-P. 204. 1 Phill. Ev. 175. (a) Ilurd V. Moring,f 1 Carr. & P. 372, ruled by Abbott, C. J. » Eng. Com. Law Reps, xxxiv. 542. ''lb. xiv. 154. <^ lb. xiv. 170. '' lb. xvi. 416. « lb. xvi. 348. f lb. xi. 425. CHAP. V. § I.] OF PRIVILEGED COMMUNICATIONS, ETC. *009 his client's identity. (^) And if he is a sub.scribing *witness to a deed he may be examined concerning the execution. (<) Or if the question be about a razure in a deed or will, he may be examined whether he had ever seen such a deed or will in other plight, for that is a fact of his own knowledge -Jd) but he ought not to be permitted to discover any confessions which his client may have made to him on such head.M So if the attorney were present when his client was sworn to an an- swer in Chancery, upon an indictment for perjury he would be a wit- ' ness to prove the fact of taking the oath, for it is a fact in his own knowledge, and no matter of secrcsy committed to him by his client. (/] So the attorney of one of the parties may bo examined as to the con- tents of a written notice which had been received by him in the course of a cause, requiring him to produce papers ;(_) Bull. N. P. 284. (/) Bull. N. P. 284, 285. But he is not bound to speak to the particulars of a bill of ex- change intrusted to him by his client ; for tlie existence of such a bill is not a mere fact, but consists of circumstances, which he came to be acquainted with from the delivery of the bill to him by his client. Brard r. Ackcrmau, by Lord EUcnborough, 5 Esp. 120. (ff) Spencely v. Schulcnburg, 7 East, 357. (A) So {.semble) a letter written by an attorney to his client produced with the client's signature indorsed upon it, is evidence against the client. Assignees of Meyer v. ^etton,"> 2 Stark. N. P. C. 274. So an admission of a debt made by an attorney to the adverse party, by the direction of his client is not privileged. Turner r. Railton, 2 Esp. 474. "((■) Levy r. Pope,' Moo. & Mai. 410, Parke, J. (j) Bevan v. Waters,'' Moo. & Mai, 235, Best, C. J. So an attorney's clerk may be asked whetiier he has not received a particular paper from his client. Eicke v. Nokes,* Moo. k Mai. 303, Lord Tenterden, C. J. (A) Duffia V. Smith, Peake, N. P. C. 108, by Lord Kenyon. » Eng. Com. Law Reps. ivi. 93. " lb. iii. 343. « lb. xxii. 343 •" lb. .\xii. 301 * lb. xxii. 314. Vol. II.— 59 909 OF EVIDENCE. [book VI. '910 Brewer's ease. givou consideration for the note, and Lc knew it was a lottery transac- tion : it was held, that the attorney was admissible to prove his con- versation in an action to recover back the money. (?) The communica- tion, said *Lord Kenyon, was not made by the client in confidence as instructions for conducting his cause ; on the contrary, the purpose in view had been already obtained, and what was said was in exultation to his attorney for having before deceived him as well as his adversary, and for having obtained his suit. Where a prisoner being in custody on a charge of forgery wrote a letter to a person, desiring him to a.sk Mr. Gr. or any other solicitor, whether the punishment of forging a bill is the same where the name of the parties are entirely fictitious, as where the names are those of real persons; it was held that this letter was not a privileged communi- cation, as the relation of client and attorney did not exist between the prisoner and G.(wi) The privilege is also confined to communications to the attorney in his character of attorney; and, therefore, a communication made to him, or question asked him by his client, not for the purpose of getting his legal advice, but to obtain information as to a matter of fact, is not privileged. As where a client asked his attorney whether he could safely attend a meeting of his creditors called on the attorney's suggestions and the attorney advised him to remain at his ofl&ce for the present, and he accordingly remained there two hours to avoid being arrested ; it was held that the attorney might prove all these facts, in order to show an act of bankruptcy, in an action by his client's assignees.(«) So in the case of Annesley v. Lord Anglesea,(o) it was held, that a conversa- tion which passed between Lord A. and his attorney twenty years ago, respecting the prosecution of the plaintiff for murder, was not privi- leged, since it was not matter of professional confidence. If an attorney or counsel be called by his own client to give evidence he is not privileged from cross-examination on the same matter as to which he was examined in chief, although it were a confidential com- munication made professionally ; but the cross-examination must not extend beyond that matter. (^) There are, besides these professional communications, a number of cases, of a particular description, in which, for reasons of public policy, information is not permitted to be disclosed. Courts of justice will not permit witnesses to be asked the names of those, from whom they re- ceive information as to frauds on the revenue. (5)f In all the trials for Commu- nications between attorney and client not privi- leged if not ijrofcs- sional. Cross ex- amination of an at- torney. luformors, (/) Cobden v. Kendrick, 4 T. R. 432. \m) Rex V. Brewer,* 6 C. & P. 363, Park, J. A. J. (n) Bramwell v. Lucas,*" 2 B. & C. 745. (o) 9 St. Tr. 391, before the Barons of the Exchequer in Ireland, 1743. \p) Vaillant v. Dodemead, 2 Atk. 524. [q) By Dallas, C. J., in Home v. Bentinck,<= 2 Brod. & Bing. 162. Hardy's case, 24 How. St. Tr. 753. But where a person officiously interferes to inform any of the constituted authori- ties of alleged abuses, the communication is not privileged ; and if untrue, may be con- sidered malicious and actionable. Robinson v. May, 2 Smith, 3. f [The officer who apprehended the prisoner, is not bound to disclose the name of the person from whom he received the information which led to the prisoner's apprehension. The U. Slates v. Moae.s, 4 Wa.-^h. (). C. Hep. 720. But a police officer will be compelled to answer at the instance of the Commonwealth. Trial of Mina, pamph., p. 9. In the trial of an indictment for larceny, a witness from whom the property is charged to have been stolen, is not bound to disclose the names of persons in las employment who gave * Eng. Com. Law Reps. xxv. 438. '' lb. ix. 233. « lb. vi. 46. CHAP. V. § I.] OP PRIVILEGED COMMUNICATIONS, ETC. 910 high treason of hite years, the same course has been adopted ; and if parties were willing to disclose the sources of their information, they would not be suffered to do it by the judges. (r) " If the name of an informer," said BuUer, J., in Hardy's case, " were to be disclosed, no man would make a discovery, and public justice would be defeated." And this privilege not only protects the actual informer himself, but those questions, which tend to the discovery of the channels by which the disclosure was made to the officers of justice, are not permitted to be asked. Thus a person who has been employed to collect secret in- formation for the executive government, or for the service of the police, is not ^allowed to reveal the name of his employer, or the nature of *911 the connexion between them ;(s) or the names of any persons to whom Agent of he has communicated his information for the purpose of its being ^^"^''J"" . ^ ^ .'^ mont or transmitted, (/) whether those persons were magistrates, or concerned in police, the administration of government, or were merely the channel through which information was conveyed to government. («) Upon the same ground the Attorney-Grcneral of Upper Canada was Official not allowed to be asked as to the nature of a communication made by commum- him to the governor of the province. (i') So the orders given by the go- vernor of a foreign colony to a military officer under his command, ought not to be produced. («') So Abbott, C. J., refused to admit in evidence the report of a military court of inquiry, in an action of libel by an officer, respecting whose conduct the court had been appointed to inquire ; and his decision was confirmed on error in the Exchequer Chamber. (.r) And Lord EUenborough, C. J., would not permit the contents of a letter, written by an agent of government to Lord Liver- pool, then secretary of state, or his lordship's answer, to be produced as evidence. (^) In Watson's case, an officer of the tower of London Questions was not allowed to prove that a plan of the Tower, produced by the t°°^t^*7 defendant, was accurate. (2) polioy. But a letter written by a private individual to a public officer, (the chief secretary of the postmaster-general,) complaining of the miscon- duct of a person under him, does not fall within the preceding cases. They were all cases of communications made by and between minis- ters and officers of government, and in the course of the discharge of a public duty by the person making the communication. Here the letter was written by a private individual, having no public duty in writing it.(6) In the case of the Seven Bishops, the clerk of the privy council was Transac- compelled to state what passed in the council chamber, and even what p^^** was said by the king himself, although the counsel for the crown ob- ooancil. (r) 2 Bred. & Ring. 162. (a) 24 How. St. Tr. 753. 1 Phill. Ev. 178. \t) 24 IIow. St. Tr. 811. (;/) By Abbott, J., in Rex v. Watson,* 2 Stark. 136. Stone's case, as cited by Lord Ellen- borough, C. J., ibid. (r) VVyatt v. Gore,'' Holt, N. P. C. 299 ruled by Gibbs, C. J. 1 Phill. Ev. 181 (w) Cooke V. Maxwell,' 2 Stark. N. P. C. 185. (xj Home v. Lord F. C. Bentick,"* 2 Brod. & Bing. 130. hj) Anderson v. Hamilton," (n). 2 Broad. & Bing. 156. (z) 2 Stark.' 148. (b) Blake V. Filfold, 1 M. & Rob. 198, Taunton, J. the information wliich induced him to take measures for the detection of the persons indicted. State V. Soper, 16 Maine, 293.] » Eng. Com. Law. Reps. iii. 283. *> Ibid. "= lb. iii, 305. <* lb. vi. 45. • lb. Ti. 49. f lb. iii. 289.' 911 OF EVIDENCE. [bOOK VI. jected to it.(c) And the same evidence was allowed in Lord Strafford's case.(rf ) But in Layer's case,(e) it seems to have been considered that the minutes taken before the privy counsel were not to be divulged ; and the two other cases above cited were decided under the strong feel- ings which the circumstances of the times had produced, and the latter in particular has been considered as a very unwarrantable departure from law and justice. (/) Grand A clerk attending upon a grand jury, shall not be compelled to reveal .i"''y- that which was given them in evidence ;{(/) and the jurors themselves are bound by oath not to disclose what passes before them ;f but it has *912 been held that a grand juryman may be called *to prove who was the prosecutor of an indictment; for it is a question of fact, the disclosure of which does not infringe on his oath.(/i) But where the grand jury returned a bill of indictment containing ten counts for forging and utter- ing the actcptance of a bill of exchange with an indorsement " a true bill on both counts; Patteson, J., would not allow one of the grand jury to be called as a witness, after the prisoner's trial had commenced, and after the grand jury had been discharged, to explain their finding. (i) And the Court of King's Bench have refused to receive an aflBdavit from a grand juryman as to the number of grand jurors who concurred in finding a bill.(ji') ETidoncc But where a gentleman of the grand jury heard a witnees swear in ^1^^°^^ ^^° court, upon the trial of a prisoner, directly contrary to the evidence which he had given before the grand jury ; and he immediately com- municated the circumstance to the judge, who, upon consulting the judge in the other court, was of opinion that public justice in this case re- quired that the evidence which the witness had given before the grand jury should be disclosed; and the witness was committed for perjury to be tried ujDon the testimony of the gentlemen of the grand jury. It was held that the object of this concealment was only to prevent the (c) 4 St. Tr. 346. (d) 1 St. Tr. 723. (e) 6 St. Tr. 288. (/) 1 Phill. Ev. 182. (^r) 12 Vin. Abr. Evidence B., a, 5. (//) Sykes v. Dunbar, Selw. N. P. 1059, per Kenyon, C. J. (i) Reg. V. Cooke,* 8 C. & P. 582. (/) Rex v. Marsh,'' 6 A. & E. 236. f {In Low's case, 4 Greenleaf, 439, it was held that grand jurors may be examined, as witnesses in court, to the question whether twelve of the panel actually concurred in find- ing a bill of indictment. This decision was made in a case where a prisoner, on his arraing- ment, filed an affidavit, stating that the indictment was not found by any ticelve of the grand jury, and also a motion to be allowed to prove the fact by the testimony of the foreman and others of that jury, that the bill was returned under a belief that it was necessary that only a majority of the panel should agree to find it. A grand juror cannot be admitted to prove that a witness, who has been examined, swore differently before the grand jury. 2 Halsted, 347, Imlay v. Rogers.} [The attorney for the Commonwealth cannot be called upon to testify to what passes in the Grand Jury Room. Commonwealth v. Tilden^ 2 Starkie's Ev. New Ed. 232, n, (1). Grand jurors being sworn to secrecy, what takes place before them cannot generally be disclosed. The People v. Eulbut, 4 Denio, 133. A grand juror may be asked who was the prosecutor of a particular individual. The People'v. Ilulbut, 4 Denio, 133. A grand juror on the trial of an indictment, may be compelled to disclose what was given in evidence by a witness before the grand jury. State v. Broughton, 7 Iredell, N. C. !I6. A grand juror cannot be called to impeach the conduct of the jury ; as for example, to show that an indictment presented by them was found without testimony, or upon insuffi- cient testimony. The People v. Hulbitt, 4 Denio, 133.] > Eng. Com. Law Reps, xxxiv. 535. '' lb. xxxiii. 66. CHAP. V. § II.] EXAMINATION OP WITNESSES. 912 testimony produced before them from being contradicted by subornation of perjury on the part of the persons against whom bills were found. This was a privilege which might be waived by the crown. (/c) In Watson's case,(/) a witn(;ss was questioned by the counsel for the A witnese prisoner as to his having prc^duced and read a certain writing before the""^,^® grand jury, and Lord Ellenborough, C. J., said, "He had considcra- what he ble doubt upon the subject; he remembered a case in which a witness*''''^ before was questioned as to what passed before the grand jury, and though itjuryf'^''" was a matter of considerable importance, he was permitted to answer." But it has since been held that a witness for the prosecution in a case of felony may be a.skcd on cross-examination whether he has not stated certain facts before the grand jury, and that the witness is bound to answer the question. (m) A witness was not allowed by Lord Ellenborough to be asked as to Honse of the expressions or arguments which a member of the House of Cora- "^'°™**°'" mons had made use of in the house ; for, said his lordship, it would be a breach of duty in the witness (who was a member himself), and a breach of his oath, to reveal the counsels *of the nation ;(/i) but as to *013 the fact of the plaintiif 's having taken part in the debate, he was bound to answer, (o) SECT. II. IIow Witnesses oufjlit to he Examined, and what Questions thei/ may he Asked, and Compelled to Ansioer. Before a witness is examined, he must be sworn in open court. The proper method of administering the oath, and the objections which may be made previous to the administration of it, will be hereafter con- sidered. (^) And the proper time and mode of objecting to the compe- tency of a witness, whether on the voire dire, or at a later stage of the trial, will be discussed in the last section of this chapter. (y) After a witness has been regularly sworn, the party who has called Kxaraina- him proceeds to examine him in chief; respecting which examination ''j^j"jl° the most important rule is, that leading questions must not be put to Leading the witness j that is, questions which, being material to any of the awcstion?. [k) Christian's Note, 4 Hla. Com. 120. There appears to be very little weight in the rea- son assigned for the concealment even l)etbre the Prisoner's Counsel Bill passed, because the prisoner had, in far the greater number of cases, heard the cvidonce of the witnesses before the magistrate, and there is still less weight now since the prisoner is entitled to copies of the depositions. And the oath itself seems not to apply to the facts proved before the grand jury; as far as regards this subject, it is "the king's counsel, your fellows and your own, you shall keep secret." 4 Chitt. Cr. L. 183. C. S. G. {I) 32 How. St. Tr. 107. (m) Reg. V. Gibson,* 1 C. & Mars. G72, Parke, B. It has recently been held that when the grand jury have found a bill, the judge before whom the case comes on to be tried ought not to iu()uire wiiether the witnesses were properly sworn before they went before the grand jury, and it seems tliat an improper mode of swearing them will not vitiate the in- dictment, as the grand jury are at liberty to find a bill upon their own knowledge merely. Reg. V. Russell," 1 C. & Mars. 247. Gurney, B., and Wightman, J. ; and Wightman, J.. added, that Lord Denman, C. J., and himself, had decided the same point the same way on the Northern Circuit. {n) Plunkett v. Cobbett, .<> Esp. 137. 29 How. St. Tr. 71, 72. (o) 5 Esp. 137. {p) Fost, p. 970. (q) Post p. 987. » Eng. Com. Law Reps. xli. 3G4. •> lb. xli. 139.1 913 OF EVIDENCE. [book VI. What are not Icailint questions. points of the issue, plainly suggests to him the answer he is expected to make. But this objection is not allowed to be applied if the question is merely introductory, and one which, if answered by Yes or No, would not be conclusive on any of the points of the issue ; for it is necessary to a certain extent to lead the mind of the witness to the subject of the inquiry. (r)f Thus in an action of assumpsit against two, in order to prove that the defendants were partners, the first witness was asked whether one of them had interfered in the business of the other. And upon this ques- tion being objected to as leading. Lord Ellenborough ruled, that it might properly be asked. (.s) An affirmative answer to this question would not have been conclusive, for the defendant might have inter- fered without making himself a partner. So where the witness called to prove the partnership of the plaintiffs, could not recollect the names of the component members of the firm, so as to repeat them without suggestion, but said he might possibly recognize them, if suggested to him, Lord Ellenborough, (alluding to a case tried before Lord Mans- field, in which the witness had been allowed to read a written list of names,) ruled that there was no objection to asking the witness whether certain specified persons were members of the firm.(^) Upon the trial of De Berenger and others, before Lord Ellenborough, at Guildhall, for a conspiracy, it became necessary for a witness, (a postboy, who had been employed to drive one of the actors in the fraud,) to identify De Berenger with that person ; and Lord Ellenborough held, that for this purpose the counsel for the prosecution might *point out De Berenger to the witness, and ask him whether he was the person. (m) So in Rex V. Watson, (ti) tried at bar, upon its becoming necessary to identify three of the prisoners, it was objected that the attention of the witness was too directly pointed to them ; but the court held, that the counsel for the prosecution might ask in the most direct terms, whether any of the prisoners was the person meant and described by the witness. So where the plaintiff's son, being called as a witness for his father, was cross- examined as to the contents of a letter received by him from the plain- tiff, which he swore had been lost, and mentioned some particular ex- pressions as part of its contents ; and witnesses were called on the part of the defendant to speak to the contents of the same letter; Lord Ellen- borough ruled that the defendant's counsel might ask one of them, who had first exhausted his memory by stating all he recollected of the letter, whether it contained the particular expression sworn to by the plaintiff's son ; for otherwise, said his lordship, it would be impossible ever to come to a direct contradiction, (w) When, upon cross-examination, a witness has denied having used particular expressions, or having made a particular statement to A. B., Pointing out pri- soners. ^914 Leading i chief to contradict (r) Nicholls v. Dowding & Kemi),» 1 Stark. N. P. C. 81. 2 Phill. Ev. 403. (a) 1 Stark. N. P. C. 81. ((!) Accerro v. Petroni,'' 1 Stark. N. P. C. 100. {u) 1 Stark. Ev. p. 170. (v) 2 Stark. N. P. C.<= 128. (w) Courteen v. Touse, 1 Camp. 43. 2 Phill. Ev. 405. f [Upon cross-examination the witness cannot be asked a leading question in respect to new matter. Harrison v. Eoivan, 3 Wash. C. C. Rep. 580. The questions, "state whether or not you examined the horse tracks towards Crogan's," and " state whether or not you had any difficulty iu following the tracks," are leading and improper. Hopper v. The Commonwealth, 6 Grattan, 684.] » Eng. Com. Law Reps. ii. 305. . t) ib. ii. 313. « lb. iii. 273. CHAP. V. § IL] examination OF WITNESSES. 914 who is afterwards callod on the part of the adverse party, for the pur- '"'"■mer pose of contradicting the first witness, by proving that he actually di*^! ,"jv'er*e*' speak the words or make the statement to him, it is very usual in prae- party, tice for the counsel of the adverse party, in examining A. B. in chief as his own witness, to ask hira, in the first instance, whether the former witness, in conversing with him, said so and so, or made such and such a statement. And accordingly, where a witness of the plaintiff's in cross-examination had been asked as to some expressions he bad used, for the purpose of laying a foundation for contradicting him, and he had denied having used them ; Abbott, C. J., held, that the defendant's counsel having called a person to prove that the former witness had used such expressions, was entitled to read to his own witness the particular words from his bricf.(.r) However a very able writer,(//) has with great force endeavoured to show, that leading questions under such circum- stances are irregular. But this rule docs not apply to conversations which are evidence Whore not themselves. A witness who was present at the time of the apprehen- "•'"wable. eion of the plaintiff by the defendant, was asked whether he had not used certain expressions in a conversation which then took jtluce between the plaintiff and defendant, which he denied; and Erskine, J., held that a person who was called to prove that the witness had said what he had denied, could not be examined by the counsel reading from his brief the very words which the witness had so denied having used, but that the examination must proceed in the usual way by asking what had passed. (,:) If a witness should appear to be in the interest of the opposite party, *015 or unwilling to give evidence, the court may deem it right "to relax the Loading an rule against leading questions, and allow the examination in chief to as- ^^t^ggg sume something of the form of a cross-examination. It is entirely in the discretion of the judge to determine how far he will allow the examina- tion in chief to be by leading questions. (^«) And where an issue had been directed by the Court of Chancery, with power to examine the par- ties; Best, C. J., held that the defendant stood in a situation which of necessity made him adverse to the plaintiff, by whom he was called, and that the counsel for the plaintiff might, as a matter of right, cross-exa- mine him.(/^) But in general, the fact of a witness being an unwilling or adverse witness is to be ascertained by the nature of his evidence, his manner of answering, and demeanor, before the unrestricted power of leading can be given; it is not enough, for instance, in a prosecution, that the witness is intimate with the prisoner, or that he has been in- formed against by the prosecutor, to justify the counsel in beginning at once with the cross-examination. (r) (x) Eflmunds o. Walter," 3 Stark. N. P. C. 7. (y) 2 Pliill. Ev. 404, 405. The practice, however, is perfectly well settled as stated iu the text. C. S. G. (z) HalUtt I' Cousen's, 2 M. & Rob. 238. (a) 2 Phlll. Ev. 403. In Bastin v. CareWj'-R. & M. N. P. R. 121, Abbott, C. J., allowed the cross-examination of an adverse witness, and said, "I lueau to decide this, and no further — that in each particular case there must be some discretion in the presiding: judfrc as to tin- mode in which the examination shall be conducted, in order best to answer the purposes of justice." Meg. v. Chapraan,'= 8 C. & P. 553, Lord Abinger, C. B. Reg. v. Murphy ,<> 8 C. i P. 297, Coleridge, J. (6) tnarkc r. Suffcry,' R. & M. X. P. R. 12G. (c) 2 Phill. Ev. 404, citing Reg. v. Ball,f 8 C. & P. 745, where a witness, called on the part » Eng. Com. Law Reps. xiv. 145. •> lb. xxi. 396. <= lb. xxxiv. 523. ^ lb. xxxiv. 397. • lb. xxi. 395. f lb. xxxiv. G16. 915 OF EVIDENCE. [BOOK VI. Cross-cx- After the examination in chief is closed, the other party is at liberty amina ion. ^^ proceed to cross-cxamination, with regard generally to the rule re- stricting examinations in chief in respect to leading questions. Leading If the witness betrays a zeal against the cross-examining party, or uller, J., in Hardy's case, 24 How. St. Tr. 755, referring to a rule laid down on the day before by Eyre, C. J., to the same effect. (^) A cross-examination as to a fact, otherwise irrelevant, is not warranted by the cir- cumstance that the adverse counsel opened it, without any attempt at proof. Lucas v. No- vosilieski, 1 Esp. N. P. C. 296. (h) Post, p. 936. (i) Sec. 3. (./) Post, p. 936. (k) There is a distinction between the obligation of a witness, since this statute, to answer f {The doctrine establishejl by this statute has been considered as the common law, by CHAP. V. § II.] EXAMINATION OF WITNESSES. 916 statute, however, does not aflFect the right, which the j^arties to a suit have, of decliuiug to give evidence fur the opposite party : and, there- fore, upon an appeal, a rated inhabitant of the appellant parish (being considered a party to the appeal) cannot be compelled, even since the statute, to give evidence when called upon by the respondents. (A And the witness is still privileged from answering any question, the answer to which might subject him to a forfeiture of his estate ; for the statute implies, that a witness may legally refuse to answer a ques- tion which has a tendency to expose him to a forfeiture of any nature whatsoever. (??i)f Counsel upon cross-examination cannot assume that the witness has Assump- made an assertion in his examination in chief, which was not in fact ^','."'* °.°,* 1 / V 1 1- 1 • 1 /. . . allowable made,(rt) or put a question which assumes a fact not in proof.(o) on cross- It is not allowable upon cross-examination, to ask a witness as to the ^'.'^'""'"a- contents of written instruments, (^>) although they are shown *to be in '°"oit the possession of the opposite party, and notice has been given to the p opposite party to produce them.(j) Under what circumstances a cross- auiinntion examination as to the contents of a written document, for the purpose "'' 'V '^"'" of impeaching the credit of a witness, is allowable, will be considered monts; hereafter in the fourth section of this chapter.(7-) <■'"■ »lie Upon the trial of Kroehl, Gibson, and Koech,(?;) for a conspiracy, ['."Xadic-'^ where the three defendants defended separately, Koech alone called t'""- witnesses, and examined to a conversation between himself and Kroehl. Cro.sK-ex- The counsel for the prosecution was proceeding to cross-examine as to orwUuess another conversation between Koech and Kroehl, when the counsel forcallod by the prisoner Kroehl objected, on the ground, that the effect might be to ""''. ? j**' bring out a new case against Kroehl, although he had called no wit- fonilants nesses, and after the case for the crown was finished : but Abbott, J., "lo°<^- said, that as Koech had called witnes.'ses, he could not prevent the cross- examination as to any conversations that might affect Koech. It might be a matter for future consideration, whether the counsel for Kroehl, after such evidence, would have a right to address the jury upon it. questions, though they may subject him to civil suits ; and his oWigation to produce writ- ings, &c., under a sulijicena ducen tecum. For if a siibpa-na duces tecum is served, the party must bring his deeds into court in obedience to the subptrna, altliougli if he states Ihat they are his title deeds, no judge will ever compel him to produce them. Pickering c. Noj-es,* 1 B. & C. 263. (/) Res V. (Inhab.) Woburn, 18 East, 395. But this decision was before the 54 Geo. 3, c. 170, and the .} & 4 Vict. c. 26, which provide that no rated inhabitant of a parish shall be deemed an incompetent witness for or against such parish. (w) 2 Phill. Ev. 620. (rt) Hill V. Coombe, cor. Abbott, J., Manning's Digest, tit. Witness, p. 23G. (o) Doe V. Wood cor. Abbott, J., ibid., p. 237. the objection was frequently taken and allowed during the proceedings in the House of Lords in the Queen's case. See the printed evidence. (p) iSainthill v. Bound, 4 Esp. 74. Howell v. Lock, 2 Camb. 14. (q) Graham v. Dyster,'' 2 Stark. N. P. C. 23. Sideways i-. Dyson,<= ibid. 49. (r) Post, p. 931. («) 2 Stark. N. P. C.<» 363. the courts in New Hampshire, (3 N. H. R. 159.) Pennsylvania, (4 Serg. & R. 397. 7 ib. 192.) Maryland, (4 Har. & .Johns. 348. 2 Harris & Gill, 158.) Kentucky, (3 Littcll, 221, 220,) and Louisiana, (6 Martin, 679, overruling the decision in 1 Martin, 2:!.) A contrary doctrine is held in Connecticut, (3 Conn. Rep. 528,) and in Tennessee, (I Overton, 340.) See 7 Cowen, 174, Mauran v. Lamb, where this point is left doubtful.! [Rose. Dig. Or. Ev. 129, n.] •}• [A witness is not protected from answering when his answers expose him merely to pe- cuniary loss. Lownetj v. Parham, 21 Maine, 235.] » Eng. Cora. Law Reps. riii. 72. ^ lb. iii. 224. « Ib. iii. 238. ^ lb. iii. 375. 917 OF EVIDENCE. [book VI. Who inny be cross- examined. ^918 If a witness be called merely for the purpose of producing a written instrument, he need not be sworn, and unless sworn, he is not subject to cross-examination. In an action for maliciously, and without pro- bable cause, making a charge of felony before a justice of the peace against the plaintiiF, and causing him to be apprehended, the plaintiff's counsel having called upon the justice to produce the information taken by him, which was accordingly produced, was proceeding to prove the information by the justice's clerk ; when it was insisted by the defend- ant's counsel, that he should be allowed to cross-examine the justice, who had produced the examination ; but Holroyd, J., held that this could not be done, and that the plaintiff's counsel might proceed to prove the examination in the regular manner. (lo) And so on an indict- ment for perjury, where a sheriff's officer had been subpoenaed to pro- duce a warrant of the sheriff; Littledale, J., ordered him to do so with- out being sworn. (x) But where upon an indictment for perjury, the attorney for the prosecution was called and sworn, and produced a copy of a declaration in an action brought by the defendant against the pro- secutor, though he was not asked any question on the part of the prose- cution ; Abbott, C. J., held, that the defendant was entitled to cross- examine him.(^) And if a witness be called, though it be through necessity, for the purpose of the mere formal proof of a document, this makes him a witness for all purposes, and he may be cross examined as to the whole of the case.(.?)f So it was once held, that if a witness has been called by one party, and sworn, the other may cross-examine him, though no question has been asked him in chief.(a) But it has been since held that if a witness be called *under a mistake, and the mistake be discovered before any question is put to him iby the counsel who calls him, he is not liable to cross-examination, although he has been sworn. (6) And so where a witness being sworn was asked only one immaterial question, and his evidence stopped by the judge, it was held that the opposite party had no right to cross-examine him.(c) Although the counsel for the prosecution are not bound to call every witness, whose name is on the back of the indictment, it is usual for them to do so, and if they decline, the judge, in his discretion, may, (w) Simpson v. Smith, 2 Phill. Ev. 307. See also Davis v. Dale,* M. & M. 514. Evans v. Moseley, 2 Dowl, P. R. 354. Perry v. Gibson,'' 1 A. & E. 48. Summers v. Moseley, 4 Tyrvv. 158. (z) Rex V. Murlis, M. & Mai. 515. (y) Rex V. Brooke,<^ 2 Stark. N. P. C. 472. ?2) Morgan v. Brydges,-! 2 Stark. N. P. C. 314. (rt) Phillipps V. Eamer, 1 Esp. 356. But where in an action of the assignees of a bank- rupt, the petitioning creditor was called for the purpose of producing the bill of exchange on which the action was founded and sworn ; Lord Ellenborough would not all,ow the de- fendant to cross-examine him, since be could not have been permitted to have given evi- dence for the plaintiff. Reed v. James,« 1 Stark. N. P. C. 132. (6) Wood V. Mackinson, 2 M. & Rob. 273, where the witness was called and sworn, and the counsel said he had been misinstructed as to what the witness was able to prove, and Coleridge, J., said, "the more satisfactory principle to lay down is this, that if there really be a mistake, whether on the part of the counsel or the officer, and that mistake be discov- ered before ihe examination in chief has begun, the adverse party ought not to have the right to take advantage of this mistake by cross-examining the witness. Rush v. Smyth, 4 Tyrw. 675. 1 C. M. & R. 94. Clifford v. Hunter,^ 3 C. & P. 16. (c) Creevy v. Carr,? 7 C. & P. 64. Gurney, B. f [Contra, Mlmakerv. BucMmj, 16 Serg. & R. 77.] « Eng. Com. Law Reps. xix. 410. " lb. xxviii. 32. « lb. iii. 437. ^ lb. iii. 361. e lb. ii. 326. <■ lb. xiv. 189. s lb. xxxii. 438. Calling witnesses whose names are CHAP. V. § II.] EXAMINATION OF WITNESSES. 918 and generally will cull tbeiu, and the defeudaut may cross-examine «« the ,,*',,,•' ' •' back of the thcm.((/) indictmont. *It is reported to have been ruled by Lord Kcnyon,(fi) that where a *Q\Q witness has been examined by one party, and cross-examined by the witness other, and the latter has afterwards occas^ion to call the same witness "f """ back as part of his own case, the privilege of cross-examination con- fj'rwurds tinues, and leading questions may be put to him. But it has been called by very properly remarked, (/) that the mode of examination under such'' ^"^ °^' circumstances is in truth regulated, according to the disposition and temper manifested by the witness, by the discretion of the presiding judge, (y) Where on an indictment for burglary, there was uo counsel fur the Witness crown, Taunton, J., after the examination of witnesses to facts on the [*''^^i,g part of the prisoners, recalled a witness for the prosecution, and then, judge, addressing the prisoner's counsel, inquired if he had any question to ask (d) Rex V. Simmonds,* 1 C. & P. 84, Ilullock, R. Rex v. Whitbread, ibid., note (a). In Rex V. Beezlcy,'' 4 C. & P. 220, Littledalc, J., said that the counsel for the pro.seeution oiipht to call all the witnesses on the back of the bill ; and in many cases, on the O.\ford Circuit, learned judges have directed the counsel for the prosecution to call every witness on the back of the bill, and it has been treated as if the counsel for the prisoner had a right to have them all called by the counsel for the crown, in order to enable him to cross-examine them. Indeed the cases have gone further than this ; as it has been held on several occa- sions that witnesses, not on the back of the bill, but who were acquainted with the facts of the case, ought to be called on the part of the prosecution. In Reg. v. IIolden,'= 8 C. & P. 606, on an indictment for murder, Patteson, J., directed the daughter of the deceased, whose name was not on the back of the indictment, to be called, saying, "every witness who was present at a transaction of this sort ought to be called, and even if they give different ac- counts, it is fit that the jury should hear their evidence so as to draw their own conclusion as to the real truth of the matter.'' And in the same case it appearing that there had been a post-mortem examination of the bod}' of the deceased, by a surgeon who was examined, and another surgeon who was in court, and that there was some ditfereuce of oitinion as to the cause of the death, Patteson, J., said, "as the surgeon is in court, I shall insist on his being examined. lie is a material witness, wlio is not called on the part of the prosecution, and as he is in court I shall call him for the furtherance of justice." And he was called and ex- amined by the learned judge. In Reg. v. Chapman,'^ 8 C. & P. 558, Lord Abingcr, C. B., directed the name of the brother of the prisoner, who was present at the time when the murder was alleged to have been committed, to rf^main on the back of the bill, and said the counsel for the prosecution would best discharge his duty l)y calling him as a witness on the trial. See also Reg. v. Orchard, ibid., note (h). In Rex v. Hodle,* 0. & P. 186, Gase- Icc, J., and Vaughan, B., held that it was in the discretion of the judge whether a witness, whose name is on the back of the indictment, should be called for the prisoner's counsel to examine him before the prisoner was called on for his defence ; and the father of the prisoner having been examined before the coroner, and bound over to give evidence at the assizes against the prisoner for murder, the learned judges held that the father ought to be called : and he was called, and asked as to statements he had made respecting the murder, with a view of discrediting him and contradicting him, and thereby raising a suspicion that the witness might have committed the murder himself; and it was held that as the father had not been examined by the counsel for the prosecution, and had been only called at the in- stance of the counsel for the j)risoner, the latter could not be allowed to call witnesses to contradict him as to the different accounts he had given respecting the murder. In Reg. v. Vincent,^ 9 C. & P. 91, Alderson, B., held that the calling such a witness in felony was dis- cretionary, but it was a discretion alwaj'S exercised, and he thought it might well be exer- cised in a case of misdemeanor. It seems that where awitness is to be called and examined by the counsel for the prisoner, the counsel for the prosecution has a right to examine him. Rex I'. Beczley,* 4 C & P. 220, infra, note (.;"). But it is said to have been decided that where the counsel for the prosecution declines to call the witness, and he is called by the judge, the counsel for the prosecution has not the right to examine the witness. By Clark- son, in Rex v. Harris,'' 7 C. & P. 581. C. S. G. (c) Dickinson v. Shcc, 4 Esp. 67. (/) 1 Stark. Ev. 188. (17) Sec also the obseryations of Abbott, C. J., in Bastin v. Carew, Ry. & Mood. N. P. C. 12'r. » Eng. Com. Law Reps. xi. 322. ^ lb. xix. 35.3. • lb. xxxiv. 547. ^ lb. xxxiv. 523. • lb. XXV. 347. ' lb. xxxviii. 48. « lb. xix. 353. •> lb. xxxii. 640. 919 OF EVIDENCE. [book VI. Ro-exaini- nation. Re-exami- nation of a witness called by the direc- tion of tlio judije. upon it, saying, that althougli ho as judge had recalled the witness for the purposes of justice, he thought it right that the prisoner's counsel should have the opportunity of cross-examining the witness again. (7i) The object of re-examining a witness being merely to explain the facts stated by the witness on cross-examination, he cannot be re- examined as to any facts unconnected with it; but if any material question has been omitted in the examination in chief, the practice ia to suggest it to the court, who will put it to the witness, or decline to do so, at his discretion. (t) Where a witness whose name was on the back of the indictment was called by the counsel for the crown, by the direction of the judge, in a case of murder, but asked no question by him, and on being cross-ex- amined by the counsel for the prisoner, stated many facts in the pri- soner's favour; and the counsel for the crown proposed to ask the wit- ness as to sovnething that had occurred at an earlier part of the day on which the deceased was killed; Littledale, J., held that this could not be allowed. This was strictly a re-examination, and no question could be put which did not arise out of the cross-examination. If the prose- cutor's counsel did not choose to examine in chief, he could not be allowed to lie by, and see what the prisoner's counsel did on cross-ex- amination, and then enter into a fresh examination of the witness, as to new facts against the prisoner. (_;') The same principle is observed with reference to the conduct of the entire case, as to the restriction on the evidence in reply to the defend- ant's case. After the close of the case for the defendant, the general rule is, that the evidence in reply must bear directly or indirectly upon the subject matter of the defence, and ought not to consist of new mat- ter unconnected with the defence, and not tending to controvert or dis- pute it.(Z:;) This is the general rule, made for the purpose of prevent- ing confusion, embarrassment, and waste of time ; but it rests entirely in the discretion of the judge whether it ought to be strictly enforced or remitted, as he may *think best for the discovery of truth and the administration of justice. (?) Where on an indictment for larceny, the case for the crown rested merely on the fact of the stolen property being found in the house of the prisoner soon after it was lost, and a witness for the defence proved that the prisoner bought the property from a third person, who was called by the counsel for the crown to prove not only that the prisoner did not buy the property of him, but that he saw the prisoner steal it; it was held that his evidence was only admissible as far as it went to destroy the case set up on the part of the prisoner, that is to show that the prisoner did not buy the property of him.(?>i) So where the defence of the prisoners was an alibi, I'r.., that they were at a public house a considerable distance from where the offence was committed, and it was proposed on the part of the crown to prove in reply that the prisoners Evideuee in reply- must be- confined to the con- tradiction of the evi- dence for the de- fence. *920 Simpson's case. Hilditch's case. (A) Rex V. Watson, » 6 C. & P. 653. (i) 2 Phill. Ev. 408. See post, p. 937, as to re-examining a witness who had been cross- examined respecting his former statements and declarations. {j\ Rex V. Beezley,'' 4 C. & P. 220. (k) 2 Phill. Ev. 408. (l) 2 Phill. Ev. 408. (ot) Rex V. Stimpson, 2 C. & P. 415,"^ Garrow, B. Mr. Phillipps observes, "this wascarry- ing t!ie rule very f;ir, as the fact of seeing the prisoner steal the goods would be strong evidence that he did not buy them." 2 Phill. Ev. 410. > Eng. Com. Law Reps. xxv. 580. " lb. xix. 353. = lb. xii. 197. CHAP. V. § II.] EXAMINATION OF WITNESSES. 920 were seen near the spot at which the n^bbery was committed, and that, therefore, they could not have been in the public house; Taunton, J., rejected the evidence, saying, " proving that the parties were near the place at which the offence was committed is evidence in chief, and not evidence in reply. Whatever is a confirmation of the original case can- not be given as evidence in reply; and the only evidence, which can be given as evidence in reply, is that which goes to cut down the case on the part of the defence, without being any coufirmaliou on the case on the part of the prosecution. "(^«) But where, on a similar indictment, IJrigg's a similar defence was set up; Alderson, IJ., permitted a person, who*^''*°' had been robbed on the road near the place where the prosecutor was robbed, to prove not only that he saw the prisoner there, but the whole circumstances under which he met the prisoner.(rA And so where in '^'"'f-'S" ^'• an action for an injury occasioned by the defendant through negligently -^"''^*"'' • driving a carriage, the plaintiff's witnesses described the carriage as having been driven by the defendant when the accident occurred at Layton, and other witnesses spoke to the defendant having been seen in the neighbourhood of Layton about the time in question ; and the defendant called witnesses to prove that, at the time in question, he was at Richmond, and the plaintiff then tendered other witnesses to show that the defendant was not at Richmond, but at Layton ; Lord Den- man, C. J., held that it would, perhaps, have been more correct had the plaintiff, in the first instance, called the witnesses then tendered, but he did not think that he could, even at this period of the cause, exclude the evidence from the jury, which certainly went to contradict the de- fendant's alibi. (^2') ^^^ where on an indictment for horse stealing, Findon's the defence was an alihi, which went to show that the prisoner, on the ^^''°' 7th and 8th of March, was at places many *niiles from the place where *921 the horses were stolen, and on the 9th relumed home ; Tindal, C. J., permitted a witness to be called to prove that the prisoner, when taken into custody on the 10th of March, said that he had been at home ever since the Wednesday before. ( lb. xxxviii. 70. * lb. xiv. 317. <• lb. iii. 343. 921 OF EVIDENCE. [BOOK VI. refresh the luciuory iuto thrcc classcs. First, where the writing serves only to re- momory. ^j^^ ^^ assist the memory of the witness, and to bring to his mind a recollection of the facts. Secondl}^, where the witness recollects having seen the writing before, and though he has no independent recollection of the facts mentioned in it, yet remembers that at the time he saw it, he knew the contents to be correct. Thirdly, where it brings to the mind of the witness neither any recollection of the facts mentioned in it, nor any recollection of the writing itself, but, nevertheless, enables him to swear to a particular fact, from the conviction of his mind on seeing a writing which he knows to be genuine. In the first class of cases, where the memory of the witness has been revived by the pre- vious inspection of the writing, it is not necessary, as a condition of the admission of his oral testimony, that the writing should be pro- duced in court; but the absence of it might afford matter of observa- tion. (<) In the two last classes of cases the writing must be pro- duced. (w) Where, in order to prove the taking of a tenement, witness produced a book containing an entry made by him of the terms of the taking, and stated that he had no memory of them but from the book, without which he should not of his own knowledge be able to speak to the facts, but on reading the entry he had no doubt that the facts really happened ; the court held that the witness might look at the entry to refresh his memory, and give parol evidence of the letting. (v) So where a receipt for money has been given on unstamed paper, it may be used by the witness, who saw it given, to refresh his memory. (to) And where a witness, who had received money and given a receipt for it, which could not be read in evidence for want of a proper stamp, had become blind, the receipt was allowed by Abbott, C. J., to be read over to him in court, (he being informed that the paper was in his hand writing,) in order to refresh his memory, (a;) So to prove an act of *922 bankruptcy *committed some years back, a deposition made at the time by an aged witness, was allowed by Lord Kenyon, to be read to him for the same purpose. (^) Rule as to The general rule is, that a witness, to assist his memory, may use a dum to*°" written entry, if it were made by himself shortly after the occurrence refresh the of the fact to which it relates ; but if he cannot speak to the fact from memory, recollection, any further than as finding it entered in a book or paper, such book or paper ought to be produced, and if not evidence, the tes- timony of the witness amounts to nothing. (2;)f Although in general, (il) 2 Phill. Ev. 411. («) 2 Phill. Ev. 412. Doe v. Perkins, 3 T. R. 754. (v) Rex V. St. Martin's,^ Leicester, 2 A. & E. 210. (w) Rambert v. Cohen, 4 Esp. 213. (z) Catt V. Howard,^ 3 Stark. N. P. C. 3. See also Jacob v. Lindsay, 1 East, 460. (.y) Vaughan v. Martin, 1 Esp. N. P. C. 440. (z) Doe V. Perkins, 3 T. R. 749. See Henry w. Lee, 2 Chit. Rep. 124. {1 Stark. Ev. 154. 3 Wend. 142, Halladay v. Marsh. 5 ib. 301. Lawrence v. Barker, 12 Serg. & Rawle, 328. Babb V. Clemson.} f jIn 2 Nott & M'Cord, 331, State v. Rawle, it was held that if a witness swear that he made the entry at the time the facts occnrred, for the purpose of perpetuating the memory of them, and that he knows from the memorandum that the facts did exist — it is good evi- dence, though he does not retain a distinct recollection of the facts themselves. It is proper for a witness who swears to the correctness of his notes of a transaction, and that without them his recollection of the fact is indistinct, to read those notes to the jury. Peck's R. 108, Rogers v. Burton.} » Eag. Com. Law Reps. xiix. 78. *> Ib. xiv. 143, CUAP. V. § II.] EXAMINATION OF WITNESSES. 922 the eutiics ou^^lit to have beeu luuJc by tlie wituess himself, yet if another wrote ihciu, an J the witness rcguhuly examined them from time to time, soon after they were written, and while the facts stated in them were fresh in his recollection, he may refresh his memory by referring to them, as if he had written them with his own hand. (a) So where a witness by looking at a written paper has his memory so refreshed that he can speak to the facts from a recollection of them, his testimony is clearly admissible, although the paper may not have been written by him,(/>) But where the witness neither recollects the fact, nor the truth of the account in writing, and the writing was not made by him, his testimony, so far as it is founded on the written paper, would be objec- tionable as hearsay ; the witness can be no more permitted to give evidence of his inference from what a third person has written, than from what a third person has said.(c) It has been held that a witness will not be allowed to refresh his Hy a copy memory with a copy of a paper, though the copy was made by himself, "■ P^P®""- and though the writing might have been used for the purpose. Thus, it has been held that a witness cannot refresh his memory by a copy of an original memorandum, made by him six months after he wrote the original, although the original was so covered with figures as to be ille- gible. ('/) But it is said that in analogy to the ordinary rules of docu- mentary evidence, a copy may be used to refresh the memory, on proof that the original is lost.(e) And two cases are reported, where it is said to have been held that a witness might refresh his memory by a copy.(/) And where a clerk to a tradesman entered the transactions in trade as they occurred into a waste-book *from his own knowledge ; and the *92o tradesman copied the entries day by day into a ledger, in the presence of the clerk, who checked them as they were copied ; it was held that the clerk might use the entries in the ledger to refresh his memory, although the waste-book was not produced, nor its absence accounted for ; as the entries in the ledger were in the nature of entries made by the clerk himself. (^) A witness cannot refresh his memory by extracts («) Rurrough v. Martin, 2 Campb. 112. The entries were in a log-book. {1 Minor's ( Alab. j Rep. Beddo v. Hmith.} (6) 2 Phill. Kv. 4i;i, citing the Duchess of Kingston's case, 20 How. St. Tr. C19, and other cases. la Lawes v. llccd, 2 Lew. 152, Aldcrson, B., held that a witness miglit refresh his memory from the notes of counsel taken on his brief at a former trial ; and he mentioned Balme v. Hutton, where a witness had been allowed to refresh his memory from a note taken by Parke, H. He, liowcver, observed that the witness must afterwards speak from a re- freshed memory, and not merely from the notes. (c) 2 Phill. Ev. 41.3. {d ) Jones v. Stroud,* 2 C. & P. 190, Best, C. J. («) 1 Stark. Ev. 179, and 2 Phill. Kv. 41 G. (/) Tanner v. Taylor, cited in Doe r. Perkins, 3 T. R. 749, where a witness produced a copy of the day-book wliich he had left at home; and Legge, 13., held that if he could swear positively to the delivery from recolkntion, and the paper was only to refresh his memory, he might make oath of it; but if he could not from recollection swear any further than as finding the matters entered in the book, then the original should have been produced. And Anonymous, 1 Lew. 101, where Bayley, J., is reported to have held that a witness cannot give a copy of a shop-ijook in evitlence to prove facts contained in the shop-book, but if he was originally acquainted with the facts he might refer to such copy to refresh his me- mory. (ff) Burton v. Plummer,'' 2 A. & E. 341. In this case, Patteson, J., said, "The copy of an entry, not maile by the witness contemporaneously, does not seem to me to be admissible for the purpose of refreshing a witness's memory. The rule is, tliat the best evidence must be produced, and that rule appears to me to be ap{)licable, whether the jjaper be produced aa evidence in itself, or used merely to refresh the memory." * Eng. Com. Law Reps. xii. 86. •> lb. xxLx. 113. 923 OF EVIDENCE. [BOOK VI. made by another person from minutes or memoranda made by the wit- ness himself. (/() At what It is not essential that the memorandum should have been contcm- timo the porary with the fact ; it seems to be sufficient if it has been made by the luoinonin- ^.*' ' .... .. . , ip duiii uiuf^t Witness or by another with his privity at a time when the facts were bo matki. fresh in the recollection of the witness, and that the reading such me- morandum restores the recollection of the fact which had faded in the Tho ad- memory, or enables him to swear to the truth of the fact.(t) AVhen verso party ^ witness refreshes his memory from memorandums, it is always at tho usual, and very reasonable, that the adverse counsel should have an inemoran- opportunity of looking at them, when he is cross-examining the wit- ness. (/) Examina- The general rule is, that a witness must not be examined as to his opinion ° opinion, for his testimony must be confined to evidence of facts : but in questions of skill and judgment, men of science or experience arc allowed Questions to give evidence of their opinion.^ Thus, in a civil case, in an inquiry andiiiJc- ^^ ^^ ^^ enbaukment choking up a harbour, an engineer has been ad- mont. mitted to prove, from his own experiments, what were the effects of natural causes upon that particular harbour, and on other harbours similarly situated on the same coast, and that the removal of the bank would not, in his opinion, restore the harbour, (^-j So shipbuilders have been admitted to state their opinion on the sea-worthiness of a ship, from examining a survey, which had been taken by others, and at which they were not present. (^) Where the question is whether a seal has been forged, seal engravers may be called to show the difference between [K) 2 Phill. Ev. 414, citing a case mentioned by Lord Kenyon, C. J., in Doe v. Perkins, 3 T. R. 752. (i) 1 Stark. Er. llG. 2 Phill. Ev. 414. (J) By Eyre, C. J., in Hardy's case, 24 How. St. Tr. 824. 2 Phill. Ev. 411. Sinclair v. Stevenson,* 1 Carr. & P. 582. But if a paper is put into a witness's hands merely to prove a handwriting, the other side have no right to see it. Ibid., per Best, C. J. If a counsel, in cross-examination, put a paper into the witness's hands to refresh his memory, the opposite counsel has a right to look at it, without being bound to read it in evidence And be may also ask the witness when it was written, without being bound to read it. Rex v. Ramsden,'' 2 C. & P. 604, by Lord Tenterden. Howard v. Canfield, 5 D. P. R. 417. (k) Polkes V. Chad, MS. 1 Phill. Ev. 291, 7th ed., cited by Buller, J., in Goodtitle v. Braham, 2 T. R. 498. So the opinion of a person conversant with the business of insurance may be asked as to whether the communication of particular facts would have varied the terms of insurance, though not what his conduct would have been in the particular case. Berthon v. Loughman,'^ 2 Stark. N. P. C. 258, cor. Holroyd, J., but see contra Durrell v. Bed- erly,d Holt, N. P. C. 286, by Gibbs, C. J. [1] Thornton v. Royal Exchange Assurance Company, Peake, N. P. C. 25. Chaurand v. Angerstein, ibid., 43. Beckwith v. Sydebotham, 1 Camp. 117. f {An experienced land surveyor may give his opinion whether certain heaps of stones^ and marks on trees, were intended as monuments of boundaries. 4 Pick. 156, Davis V. Mason. The attesting witnesses to devise may give their opinion as to the sanity of the devisor. Aliter, of other witnesses, 5 Pick. 510, Needhom v. Ide. 3 Stark. Ev. 1707, note (2). [New Ed. Vol. 2, 932.] See also 4 Cowen, 355, M'Kee v. Nelson. 3 N. Hamp. R. 249, Town of Rochester v. Town of Chester. 6 Connect. R. 9, Morse v. The State. 14 Serg. & Rawle, 137, Kellog i>. Krauser.} [A party is not entitled to ask the opinion of a professional witness upon any question except one of skill or science. The People v. Bodine, 1 Denio, 281. A witness, not a professional man, may give his opinion in evidence in connection with the fiicts upon which his opinion is founded and as derived from them ; though he could not be allowed to give his opinion founded upon facts proved by other witnesses. 2Iorse v. Crawford, 17 Vermont, 499. The opinions of witnesses that a house is a nuisance as it is kept, is incompetent to estab- lish the fact that it is a nuisance. Smith v. The Commonwealth, 6 B. Monroe, 21.] •■ Eng. Com. Law Reps. xi. 480. ^ lb. xii. 284. ' lb. iii. 340. <• lb. iii. 104, CHAP. V. § II.] EXAMINATION OF WITNESSES. 923 a genuine impression, and that supposed to be false. (???) So on an in- dictment for forging a will, which, together with writings *in support of *924 it, it was suggested had been written over pencil marks, which had been rubbed out ; an engraver who had examined the paper with a mirror and traced the pencil marks, was held competent to give evidence of what he had discovered upon such examination. (??) So in several cases where the genuineness of certain handwrilinif has been in question, per- sons skilled in the examination of handwriting, and in the detection of forgeries, as inspectors of franks, and clerks of the post-office, have been allowed to state their opinion, whether a particular writing is in a genuine or imitated character.(o) But the authority of these cases has been shaken by the case of Gurney v. Langlands,(yv) in which an issue having been directed to satisfy the Court of King's Bench as to the forgery of a signature to a warrant of attorney ; Wood, B., refused to admit the evidence of an inspector of franks at the post-office, who, having never seen the party write, was called to prove, from his know- ledge of handwriting in general, that the signature in question was not a genuine signature, but an imitation. On a motion for a new trial, the court refused to disturb the verdict, some of the judges expressing doubts, whether the evidence was admissible, and all of them consider- ing it, if admissible, not entitled to any weight. («^)f In criminal cases, the opinions of medical men of science arc very Medical frequently employed as evidence. A physician who has not seen the ™®"' patient, may, after hearing the evidence of others, be called to prove on his oath, the general effect of the disease described by them, and its probable consequences in the particular case.(r) The testimony of medi- cal men is constantly admitted with respect to the cause of disease, or of death, in order to connect them with the particular acts, and as to the general sane or insane state of the mind of the patient, as collected from a number of circumstances. Such opinions arc admissible in evidence, although the professional witnesses found them entirely on the facts, circumstances and symptoms established by others, and with- out being personally acquainted with the facts. (.<) Thus, where on a trial for murder the medical witnesses called on the part of the prosecu- tion ascribed the death to strangulation, other medical men called on (m) By Lord Mansfield in Folkcs v. Chad, ubi supra. Ante, p. .39.'>. hi) Reg. V. Williams,* 8 C. & P., 434, Parke, B., after consulting Tindal, C. J. (o) Goodtitle v. Braham, 4 Tr. 407. Ilex v. Cater, 4 Esp. N. P. C. 117, 145. Stranger i». Searle, 1 Esp. 14. (^) 4 B. & A.I' 330. Ante, p. 394, and see Doe d. Mudd v. Snckcrmorc, ante, p. 820. ((/) See also the case of Cury v. Pitt, Peakc Ev. App. 84, in which Lord Kenyon refused to receive the evidence of an inspector of franks at the post-oflicc, as to whether he Ihouglit tlie defendant's acceptance a genuine handwriting, or otherwise ; and his lordship said, that though such evidence was received in Ilevett v. Braham, he had in his charge to the jury, laid no stress upon it. Mr. Baron Wood, in his report in the case of Gurney v. Langlande, observed, "Opinions of skilful engineers, mariners, &c., maybe given in evidence on mntters depending upon skill, viz., as to what effect an embankment in a particular situation may have upon a harbour, or whether a ship has been navigated skilfullj' : because in such caset* the witness has a knowledge of the alleged cause, and his skill enables him to judge and form a belief to that eftect." (r) Peakc Ev. 190. (s) 1 Stark. Ev. 175. f [It seems that the rule sometimes allowed to prevail admitting experts to give an opi- nion whether a signature is genuine or imitated is not well established upon authority, and that such testimony is incompetent. I'cr Bronson, C. J., in The People v. Spooner, 1 Denio. 343. See ante, p. 393, note.] * Eng. Com. Law Reps, xxxiv. 4GG. *" lb. vii. 118. Vol. II.— 60 924 OF EVIDENCE. [BOOK VI. behalf of the prisoner -were allowed to give their opinion that from the evidence they had heard upon the trial the death did not arise from strangulation, although they had not seen the body of the deceased and had no means of forming a judgment of the cause of his death, except *925 froDi *t^6 evidence given in court.(<) So in prosecutions for murder, medical men have been allowed to state their opinion, whether the wounds, described by witnesses, were likely to be the cause of death. (m) So in a case of murder,(y) where the defence was insanity, the twelve judges were unanimous in thinking that a witness of medical skill might be asked, whether, in his judgment, such and such appearances were symptoms of insanity, and whether a long fast, followed by a draught of strong liquor, was likely to produce a paroxysm of that disorder in a person subject to it. But several of the judges doubted whether the witness could be asked his opinion on the very point which the jury were to decide, viz., whether, from the other testimony given in the case, the act as to which the prisoner was charged, was in his opinion an act of insanity. (m>) And it has been since held that a physician who had heard the whole evidence on a trial for murder might be asked whether the facts and appearances proved showed symptoms of insanity. (x) Opinion A person of experience in the profession of the law of another coun- °f*" th ^^y ^*y state his opinion, what, according to the law of that country, country, would be the legal eflPect of the facts previously spoken to by the wit- nesses, taking the facts to be accurate. (y)"!" Separate It is usual for the court, at the instance of either party, in criminal exaniina- ^^ jj ^^ g-^j^ cases, to make an order that the witnesses, intended to tion of wit- . • I • T 1 11 ■ n ^ • ^ nesses. be examined on either side, shall remain out ot court during the exami- nation of the other witnesses ;(2)| and it has been held that if any per- son be present contrary to that order, he cannot on any account be per- mitted to be examined, (a)§ although he be the attorney in the cause. (i) But in a late case,(c) Littledale, J., said, that an attorney was not (i!) Rex V. Shaw, Stafford Spr. Ass. 1834, cor. Patteson, J. S. C. 6 C. & P.» 3T2. ' \u) 1 Phill. Ev. 290, Vth ed. {2 Halsted, 244, State v. Powell.} {v) Rex V. Wright, Russ. & Ry. C. C. R. 456. {w) It seems that in Reg. v. M'Naughton, such questions were allowed to be asked. 29 Law Mag. 396. (z) Rex V. Searle, 1 M. & Rob. TS. [y) Rex V. Wakefield and others, cor. Hullock B., Murray's ed., p. 238, in which case a gentleman at the Scotch bar was examined as to whether the marriage, as proved by the witnesses, would be a valid marriage according to the Scotch law. See ante, p. 810. (2) The order is made, on the application of a prisoner as an indulgence, not as a matter of right. 1 Chit. Cr. L. 618. 1 Burn. Just. tit. Evidence, p. 999. (a) Attorney-General v. Bulpit, 9 Price, 4. (6) Rex V. Webb, cor. Best, J., MS. Mann. Dig. p. 324. (c) Pomeroy v. Baddeley,'' R. & M. N. P. C. 430. And it is now the ordinary course to permit, not only attorneys, but professional or scientific persons to remain in court, the rule being considered as not applying to witnesses of those descriptions. C. S. G. f {See 2 Haggard's C. Rep. 62, et seq. [Eng. Eccl. R. iv. 487.] 1 ib. 216, [Eng. Eccl.R. iv. 367, et seq. 324, et spq.'\ [Eng. Eccl. R. iv. 422.] 4 Bing. 699, [Eng. Com. L. Rep. xv. 118,] Douglas «. Forrest. Ace] [Rose. Dig. Cr. Ev. 138, n.] % {See 9 Pick. 496, that in a capital trial, the court will, on motion, exclude from the court room all the witnesses, except the one under examination.}- I {In Parker v. M'Williams, 6 Bing. 683, [Eng. Com L. Rep. xix. 204,] it was held to be a matter of discretion in the judge, (except in the Court of Exchequer, where he is per- emptorily excluded,) whether a witness shall be examined, who remains in court after an order for the witnesses on both sides to withdraw. A bystander, or a witness not ordered to remain out of court, may be called to impeach the credit of a witness who is examined separately. Peck's R. 361, Wood v. M'Pheron.} [See contra State v. Sparroiv, 2 Murphy, 487.] » Eng. Com. Law Reps. xxv. 443. '■ Ib. xxi. 482. CHAP. V. § III.] OF IMPEACHING THE CREDIT OF WITNESSES. 925 within the rule, and mfght remain, and still be admissible as a witness, bis assistance being in most cases absolutely necessary to the proper conduct of a cause. And it appears now to be settled that it is in the discretion of the judge whether he will allow the witness to be ex- amined if he has been in court in defiance of an order to withdraw. (f/) Upon the trial of a misdemeanor, the defendant is not entitled to tho *0'2C) assistance of counsel to cross-examine witnesses, when he reserves to Cmin.si'l himself the right of addressing the jury ; but counsel *may argue fi>i' "oss"cx- him any points of law that arise, and may suggest the questions to be nminc if put to the jury.(c) .k-fo.ulant Though the counsel for the prosecution had closed his case, and the the jury, counsel for the prisoner had taken an objection as to a defect in the cvi-Thc jiid;;o dencc, the iudgc is at liberty to make any further inquiry of the wit-'""?^ '^'*".. ' •' o . •' •' . . 1 J amine wit- nesses he thinks fit, in order to answer the objection. In Ilex v. Hem- iu-j.«.'h nant.f f) on a case reserved for the opinion of the iud;i;es, none of them •»'"''''■ ''n-^'' V ' . JO? cli)se T1 -ing credit facts stated by the witness. 1. l>y cross-examination. 2. Uy proot of witness. of statements made by him previous to his examination, inconsistent with his present evidence. 3. By proof of his acts and declarations touching the matters at issue. 4. By general evidence of his character. 1. As to impeaching the credit of a witness by cross-examination. f If a witness be asked a question, for the purpose of showing him uu- 1- By worthy of credit, the answer to which has a tendency to expose him to Ij^i^inji^in a penalty, or to any kind of punishment, or to a criminal charge, (as, of the wit- for instance, if he be asked whether he has been guilty of theft, fraud, "?^* "^ '" or any oflfence subjecting hnn to a penalty or criminal proceeding,) he conduct, is not obliged to answer. (y)| So far has this principle been carried, that *^'- {d) Parker v. M'WiHiam,' G Bingh. R. G83. Beamon v. Ellirc,*- 4 C. & P. 585, Tawnton , J. Rc.\ «'. Collcy,"= M. & M. 3;19, where Littlcdale, J., after cousulting Gasclce, J., said il depended on the circumstances of the case whether such a witness ought to be examined. In Rex V. Wyldc,'' 6 C. & P: 380, Park, J. A. J., rejected a witness, saying, " I will always in a criminal case reject a witness remaining in court after all the witnesses on both sides have been ordered to leave it." (c) Rex V. White, 2 Campb. 98, cor. Lord Ellonborough. Rex v. Parkins,* K. & M. N. P. C. 166, cor. Abbott, C. J. }S. P. 4 N. Ilamp. R. 5G2.{ (/) Russ. & Ry. C. C. R. 136. \g) See the cases collected, 2 Phill. Ev. 41Y. 1 Stark. Ev. 190. See also miif. p. 016, as to the obligation to answer Avhere the answer might subject to a civil suit. The protection is not confined to questions where the answer would lead to an immediate conclusion of ■}■ [A witness may be impeached by proving that he is not worthy of credit, or that the facts to which he deposed, are not true, or by cross-examination in which he may be in- volved in inconsistencies. If the witness is impeached in cither of these modes, evidence of his general good character i-! admissible. likhmond v. Richmond, 10 Ycrgcr, .^43.] J [At common law, no one can be compelled to testify to facts, showing himself guilty of » Eng. Com. Law Reps. xix. 204. ^ lb. xix. 537. " lb. xxii 325. << lb. XXV. 447. • lb. xxi. 404. Such questions 926 OF EVIDENCE. [bOOK VI. i^uestions in ail actiou for a libel, which was published by the defendant in a trndmg to Yoluntary affidavit, sworn extrajudicially before a magistrate, it was held that the magistrate's clerk was not bound to answer whether he wrote the affidavit, and delivered it to the magistrate, because, as it was said, the bare copying out of a libel is criminal. (A) So awitness is not bound to answer whether he wrote an advertisement referring to libellous let- ters which a prosecutor had received; and though he is bound to *927 answer whether he *knows in whose handwriting it is, he is not bound to name the person, as it may be hiiusclf.(/) An accomplice who is admitted to give evidence against his associate in guilt, though bound to make a full and fair confession of the whole truth respecting the sub- ject-matter of the prosecution, is not bound to answer with respect to his share in other offences, in which he was not concerned with the pri-_ soner ; for he is not protected for such offences. (y) So a witness in cus- tody upon a charge of felony cannot be asked, <' Have you not said that you committed the offence, for which you are now in custody ?"(^) But although a witness iis not compellable to answer questions of this description, it should seem that such questions may legally be asked. (Z)f As to questions which are asked, upon cross-examination, for the pur- may be pose of throwing discredit on a witness, and which tend merely to dis- asked. grace and degrade him, without subjecting him to a penalty or criminal tending to charge, the authorities are conflicting on the point whether he is com- •luilt, but extends to all questions that tend to criminate the witness, " and the reason is that the party would go from one question to another, and though no question might be asked, the answer to which would directly criminate the witness, yet they would get enough Irom him whereon to found a charge against him." Per Lord Tenterden, C. J. Rex v. iSlancy,^ .5 C. & P. 213. Thus, where a witness in an action by the indorsee against the drawer of bill, where the defence was usury, was asked whether the bill had ever been in his possession before, and the witness said he thought his answer would have a tendency to convict him of the olfence of usury, for which he had been indicted, it was held that he was not bound to answer the question. Gates v. Hardaerc, 3 Taunt. 424. (A) Maloney v. Hartley, 3 Gampb. 310. Rex v. Slaney,'' 5 C. & P. 213. \i) Rex V. Slaney ,"= 5 C. &. P. 213, Lord Tenterden, G. J. {j) West's case, MS. 2 Phill. Ev. 419. A witness who answers questions tending to crim- inate himself on bis examination in chief, is bound to answer on the cross-examination, though his answer may implicate his life. Per Dampier, J. Manning's Index, tit. ^Yitness, pi. 222. See also East v. Ghapman,^ Mood. & Malk. 4'7. S. G. 2 G. & P.« 570, and in Dixon '■. Vale,'' 1 G. & P. 278, Best, G. J., laid it down that if a witness, being cautioned that he is not compellable to answer a question that may criminate him, chooses to answer it, he is bound to answer all questions relative to that transaction, and cannot be allowed to object that any further question has a tendency to criminate him. {k) Rex V. Pegler,s 6 G. & P. 521, Park, J. A. J., and Littledale, J. {I) See the observations of the judges in Rex v. Watson,'' 2 Stark. 149, et seq. Rex v. Holding and Wade, 0. B. 1821, cor. Bayley, J., MS. Archb. Grim. PI. 150. S. C. 1 Archb. Pract. 193. Harris v. Tippet, 2 Gampb. 637, cor. Lawrence, J. Cow^ra, Rex v. Lewis, 4 Esp. N. P. G. 225. M'Rride v. M'Bride, ibid., 242 ; but see 2 Phill. Ev. 426. Indeed, if the impu- tation contained in a question is so connected with the inquiry and the point in issue, that the fact may be proved by other evidence, and the adverse party intends to call witnesses for that purpose, the witness proposed to be discredited must be asked whether he has been guilty of the offence imputed, joos/, p. 931, 937. And Lord Tenterden has ruled that the counsel in a cause have no right to object, in favour of a witness, that the answer to a particular ques- tion renders him liable to punishment or forfeiture ; such objection belongs to the witness only. Thomas r\ Newton, 1 Mood. & Malk. 48, note («), to East v. Ghapman. misdemeanor. Cook ^ al. v. Spalding ^ al. 1 Hill, 58G. Ward v. The People, 3 Hill, 395. Cloycs V. Thayer, ibid., 5G4. The State v. Douglass, 1 Missouri, 374. Ward v. The State, 11 Missouri, 98.] t {6 GoAven, 254, Southard v. Rcxford, and cases cited, I Pt;;rk. Ev. 13C, note (2). Ace. See also 2 M-Gord, 230, Nettles v. Harrison. J + {See 1 Stark. Ev. 138, note{l).\ '■ Kng. Com. Law Reps. xxiv. 285. '• lb. xxv. 285. ^ \\y\(\, a lb. xxii. 244. «Ib. xii. 2C8. ' lb. ii. 3M. t ]b. jxiv. 436. i- lb. xxii. 244. CHAP. V. § III.] OF IMPEACHING THE CREDIT OF WITNESSES. 92T pollable to answer them. In Cooke's ca.so,(m) on an indictment for deKra lb. xxii. 288. ' lb. iii. 293. 930 OF EVIDENCE. [BOOK VI. Witnesses If the question be of a tendency to criminate or degrade, and the answer •^yitncss answers it, the cross-examining party must be satisfied with the answer, and it will not be allowed to falsify it by evidence ;(e) that is, if the question be merely collateral to the point in issue ; for if it be relevant to it, and the witness deny the thing imputed, evidence may be called to contradict.f Thus where a witness for a prosecution in *931 larceny had been asked in cross-examination, whether he had not been charged with robbing his master, and ^whether he had not afterwards said he would be revenged of him, and would soon fix him in gaol, and had denied both ; Lawrence, J., ruled, that as to the former, his an- swer must be taken as conclusive ; but that as the words were material to the guilt, or innocence of the prisoner, evidence might be adduced that they were spoken by the witness. (/) (Privilege ( The privilege of refusing to answer is the privilege of the witness, of the wi^- auj jjQt of the party; for that reason. Lord T'enterden, C. J., refused to allow counsel to support, by argument, the privilege as belonging to the party whom he represented. (y)| / If a witness answers any questions on cross-examination on a matter / rendering himself liable to forfeiture or punishment, he cannot after- j' wards claim his privilege, but must answer throughout. (A) And so if a I witness voluntarily answers questions tending to degrade him on his examination in chief, he is bound to answer on cross-examination, how- ever penal the consequence may be.('ij§ (e) Rex V. Watson,* 2 Stark. R. 149, 151, 158. Rex v. Clarke,^ 2 Stark. R. 244, per Hol- royd, J., Harris v. Tippet, 2 Campb. 637, cor. Lawrence, J. For the court will not try a col- lateral question whether the witness has been guilty of the misconduct imputed to him. However, in this case of Harris v. Tippett, which has been relied upon by very high authori- ties in support of the general rule, (see Rex r. Watson,* 2 Stark. 155, 158,) it may be per- haps doubted whether the decision of the learned judge in this particular instance was cor- rect, although the principle laid down by him undoubtedly is so. The witness being called for the defendant, was asked whether he had not attempted to dissuade a witness examined for the plaintiff from attending the trial ; the question therefore, it may be argued, was not altogether collateral, but so connected with the cause that other witnesses might be called to contradict hira. See the Queen's case,"! 2 B. & B. 311, post, p. 936, and see the cases where a prosecutrix in rape, and a daughter in an action for seduction have been contra- dicted by other witnesses, ante, p. 784. (/) Yewiu's case, 2 Campb. 638, see also the Queen's case,* 2 Brod. & Bing. 313, and post p. 936. (g) 2 Phill. Ev. 418, citing Thomas v. Newton,^ M. & M. 48 n. (h) East V. Chapman, s M. & M. 46, Lord Tenterden, C. J. (i) Per Dampier, J., Winchester Sum. Ass. 1815, Mann. Ind. Witness, 222. person, on behalf of the government, has made to the witness any offer of a reward in re- lation to the testimony which he should give in a certain class of cases, comprehending the case on trial. Gommomcealth \. Sachet, 22 Pick. 394.] f [The witness (with the instruction of the court, when necessary) must decide whether his answer will tend to criminate him : and his decision is upon oath and at the peril of per- jury. Poole V. Perrili, 1 Spears, 128. A witness is not bound to answer any question that will criminate himself. Although in .^uch case the witness is his own judge, yet he is liable to an action if his refusal to testify be wilful, and his excuse false. ^Varner v. Lucas, 10 Ohio, 336.] X [A witness called to support a crimiaal prosecution, objects to giving his testimony be- cause it will criminate himself, but is nevertheless erroneously compelled to testify, and the defendant is convicted, it seems that the error does not affect the rights of the witness alone, but that the defendant may object that the conviction was founded upon illegal evidence. Commonwealth v. Kimball, 24 Pick. 366.] g [The rule that the witness is not obliged to criminate himself, is well established. But this is a privilege which may be waived ; and if the witness consents to testify to one matter tending to criminate himself, he must testify in all respects relating to that matter, so far as material to the issue. If he waives the privilege, he does so fully in relation to that act • » Eng. Com. Law Reps. iii. 293. ^ Ibid. 334. <= Ibid. 292. ^ jb. vi. 129. <■ lb. vi. 130. f lb. xxii. 244. § lb. xii. 268. CHAP. V. § III.] OF IMPEACHING THE CREDIT OP WITNESSES. 931 The rule which requires the best evidence to be produced, of which Kule t^nt the nature of the thing is capable, is it should seem in some degree le-j^.,,^^ " . lazed in regard to cross-examination for the purpose of discrediting asiblc inust witness; for the rule is to be understood as applicable only to the P'"'^of^^^^^^^"j of the issue or some fact material to the issue. (A) Thus it is usual in cablo to practice to ask in cross-examination an acconipliee or other witness, who ^"'"''f^ *^y * . ... -111! amination appears against a person on a cnnunal prosecution, whether he has nottodiscrc- been tried for some oflfence ; although the fact of his having been tried '•'': »'•'"'''«• for such an ofiFencc is partly matter of record, and, therefore, according to the general rule, not to be proved without the record, which is the highest species of proof. (^) 2ndly. The credit of a witness may be impeached by giving evidence 2. By proof of his having said or written touching the cause, what is at variance and jictory inconsistent with his testimony on the trial. (?u) But in order to lay a statement, foundation for such discrediting evidence, it is necessary first to ask the 4 foundiv- witness, whom it is proposed to discredit, by proof of contradictory ver-y^^ j^jj ^j^ ia? statements, upon cross-exauiination, whether he has made the state- crop.s-e.x- ment or declaration, or held the conversation which it is intended to*'"'""'""' prove. (n)f Thus, if a witness, on being examined in chief as to some transaction supposed to have occurred between certain persons, should admit that he had heard of such a thina;, but does not know its cause, it would be irregular *to prove his having made a declaration respect- ^'J- ing the cause, in order to show his knowledge of the cause, without first asking him in the cross-examination whether he had not made such a declaration ; or if he had answered that he did not remember the trans- action, it would be equally irregular, without such previous cross-ex- amination, to prove declarations made by him respecting the transaction for the purpose of showing, that he must have remembered it :(o) for (k) 1 Phill. Ev. 301, lib ed. (l) 1 Phill. Ev. 301, 7th ed. 2 Phill. Ev. 428, last ed. But if the object is, not merely to discredit, but to exclude the witness altogether, on the ground of his conviction for a crime, the conviction must be regularly proved by the production of the record, post, p. 974. . (m) Dc Sailly v. Morgan, 2 Esp. N. P. C. 691. Christian v. Combe, 2 Esp. 489. See anU, p. 896, as to the depositions of a witness before a magistrate being used for this purpose. In order to impeach the credit of a witness for tlie defendant, upon an information fur assault- ing revenue officers, by proving that on an information before two magistrates against the same defendant for having smuggled goods in his possession, he gave a diflerent account of the matter, proof of the conviction containing the testimony of the witness is insuflScient; it is necessary to prove it by the testimony of those who heard what he said. Rex v. Howe, 1 Camp. 461. S. C. G Esp. 125. (ra) The Queen's case," 2 Brod. & Bing. 299. Carpenter v. Wall," 11 A. & E. 803. (o) The Queen's case,'= 2 Brod. & Bing. 299. but he does not thereby waive his privilege of refusing to reveal other unlawful acts, wholly unconnected with the act of which he has spoken, even though they may be material to the issue. Low V. MilcheU, 18 .Maine, 272.] f {This rule is not adopted in Massachusetts, 17 Mass. Rep. IGO, Tucker f. Welsh.} — [ Ware v. Ware, 8 Grcenl. 42. The credit of a witness cannot be impeached by proving ante- cedent statements, inconsistent with his testimony upon the stand, without first interrogat- ing upon the subject on cross-examination that he may have an opportunity of explaining what might otherwise appear contradictory. Franklin Bank v. Steam Naviijolioii Company, 11 Gill. lb. xxxii. 426. <= lb. xxxiv. 604 ^ lb. xxxiv. 547. e lb. xxxiv. 280. Hb. xxxviii. 119. s lb. xxxii. 750. •» lb. xxiv. 280. CHAP. V. § III.] OF IMPEACUING THE CREDIT OP WITNESSES. 935 larly taken against the prisoner before the niagistrutcs, and returned to P'Tositions the proper ofGccr, and that officer proved that he had made diligent search after them, and could not find them ; Pattcson, J., held that the prisoner's counsel might cross-examine from copies of them, which were proved by the magistrate's clerk to be correct. (^r) But the rules only apply to what are strictly depositions taken in the ^^''"'''"o tl'« regular course before a magistrate. Where, on an indictment for a rape, ,,^1 apj.i^.. it appeared that the prosecutrix had twice charged the prisoner with the oflFcnce, and that on the first occasion the prosecutrix was sworn and her statement taken down, but not read over to her or signed either by the magistrate or the prosecutrix, and after this examination the pri- soner was discharged, but was afterwards again apprehended, and com- mitted by other magistrates; Coleridge, J., after conferring with (jur- ney, 13., held that the counsel for the prisoner might ask the prosecutrix whether she had not said certain things on the first occasion when she was so examined without producing the writing which had been taken down.(/) A very distinguished writer on the law of evidence, (//) has stated his ^^' ''f •^'■'" opinion, that the determination of these points has left the ((ucstion still „„^y l^. open, whether counsel may be allowed to cross-examine a witness as to asked on his having given a different account of the transaction, or as to his liav-|[|||J?^j^^iJ„ ing written a letter containing a different account ; because, in the the geno- queen's case, the question put to the witness related to a variety of [j^Jn'^'^hp- particular expressions, and entire passages, supposed to be contained in ihcr Lo lia.^ a letter, and the letter which was supposed to contain such expressions,"'.'^'."*'" '^ had been actually produced, and shown by the counsel: whereas, thcuLcount. question, proposed above, is quite general, namely, whether the witness Qumc. has given any account in his letters, or otherwise, differing from his present account, and the question is proposed without any reference to the circumstance, whether the letter is or is not in existence, or whether it has or has not ever been seen by the cross-examining counsel. (/t) And the eminent author above alluded to argues with great force and ability, that such a question may be asked with propriety. ((') In order to lay a foundation for contradicting a witness, the questions What asked upon cross-examination must, in some way, be relevant to thc^"|jyjjg matter in issue. Thus, in an action for usury, the person with whom nskod to the contract, alleged to be usurious, had been made, was produced as _|'^u^^jj°V"' a witness for the plaintiff, and the counsel for the defendant proposed a contni- to cross-examine him as to other contracts he had made with other per- '''^*"'"-^ ,. .» , . J . evidence, sons, which were not usurious: intending, if the witness answered in the affirmative, to draw the conclusion that he had made the same con- tract with the defendant, and if the witness denied the nature of those other contracts, 'to call evidence to prove the contrary, and thereby *93G destroy the witness's credit. Jjut Lord EUenborough refused to suffer (e) Reg. V. Slicllard,* 9 C. & P. 'ill. If) Reg. V. (;rilliUis,t> 9 G. & P. 746. (g) 1 Pliill. Kv. 299, Tlli cd. (h) Mr. Pliillipps applies the same reiisoning to iinollicr resolution of Mie judj^es, during the same procoeiliiigs, viz., that if a witness be asked whether he has represented such a thing, they should direct the counsel to ask whether the representation had l)cen made in writing or in words. This opinion of tiie judges, the above learned writer conceives to liavc been founded on the supposition that the witness's letter was actually in the possession of the cross-examining counsel, and on the circumstance of the question relating to jjarticular expressions, supposed to have been contained in the letter. See 2 Phill. Ev. 400. (t) I Phill. Ev. 299, 7th cd., etseq. See also 1 Stark. Ev. 20.3, ct seq. » Eng. Com. Law Reps, xxxviii. 119. '' lb. xxxviii. 317. to contra diet. 936 OP EVIDENCE. [book VI. the question to be put, conceiving it to be entirely irrelevant to the issue in the cause; and the Court of King's Bench were afterwards all of opinion that ho had acted properly : and they laid down the rule, that it is not competent for counsel on cross-examination to question the wit- ness concerning a distinct collateral fact, which, if answered affirma- tively, is wholly irrelevant to the matter in issue, for the purpose of discrediting him, if ho answers in the negative, by calling other wit- In what nesses to contradict him.(y) It need hardly be observed, if a question deneVmay ^^ ^vholly irrelevant, and therefore improperly asked on a cross-exami- be called nation, and the witness nevertheless give an answer to it, the cross- examining party may not call evidence to contradict that answer; but it is further to be remarked, that many questions may be asked with pro- priety on cross-examination, which are irrelevant to the matter in issue, yet are allowable because they go to the credit of the witness : but the distinction is, as to the right to call evidence to contradict answers given to questions put to shake a witness's credit, that if the questions go merely to his credit, and are in other respects collateral to the issue, evidence cannot be called to contradict the answers; if they not only go to his credit, but are also connected with the subject of inquiry, then it is allowable to call witnesses to contradict. Thus, if a witness be asked on cross-examination, whether he has been guilty of a crime, or any conduct which would discredit him as a witness, but is unconnected with the matters in issue, and he denies it, his answer is conclusive ;(/.•) but if the imputed misconduct be relative to the subject of inquiry, as, if a witness for the crown be asked whether he had not said that he would be revenged on the prisoner, and would soon fix him in gaol,(/) or whether he had not made declarations to procure persons corruptly to give evidence in support of the prosecution, (m) then evidence may be called to contradict him, if he denies the words or declarations im- When the putcd to him ; and if the witness declines to give any answer to such witness 3^ question proposed to him, by reason of the tendency thereof to crimi- declines to ^ , . ,^. i , . '' p . . , , "^ , ,, , answer. ii^te himself, and the court is or opinion that he cannot be compelled to answer, the adverse party has also, in this instance, his subsequent op- portunity of tendering his proof of the matter, which is received, if by law it ought to be received. (?«) In one case, where a witness said on cross-examination that he had no recollection of a certain declaration one way or the other, without expressly denying it, Tindal, C. J., held that a person could not be called to prove such declaration ; as he had never heard such evidence admitted in contradiction, except when the witness had expressly denied the declaration. (o) But in a later case where a witness neither admitted nor denied a verbal statement, Parke, B., held that evidence •was admissible to show that the witness had made such a statement. (jo) {j) Spenceley v. De Willott, 7 East, 108. {2 Rep. Const. Ct. (S. C.) ITI, State v. Alexan- der. 2 Gallison, 53, Odiorne w.Winkley, 5 Wend. 301, Lawrence w. Barker. 2 McCord, 230, Nettles V. Harrison.} {k) Ante, p. 930. {I) Yewin's case, 2 Campb. 638. \m) The Queen's case, 2 Brod. & Bing.» 311. (n) The Queen's case, 2 Brod. & Bing." 313, 314. (o) Paine v. Beeston, 1 M. & Rob. 20. (p) Crowley v. Page,"= 7 C. & P. 789. The learned baron said, "Evidence of statements by witnesses on other occasions, relevant to the matter at issue, and inconsistent with the testimony given by them on the trial, is always admissible in order to impeach the value of that testimony ; but it is only such statements, as are relevant that are admissible, and in » Eng. Com. Law Reps. vi. 129. •' Ibid. •= lb. xxxii. 737. CHAP. V. § III.] OP IMPEACHING THE CREDIT OF WITNESSES. *937 *3(lly. The credit of a witness raay be impeached, not only by giving 3. By evidence to prove statements made by him at variance with his testi- ^^"^ggfg mony, but by calling witness to prove his declarations and acts touch- acts and ing the subject-matter of in(iuiry.((/)f And the rules above stated, as f^^^^"^' to the necessity of a previous cross-examination of the witness whom it touching is proposed to discredit, apply equally to this method of discrediting him *''*' *'?"*'^- as to the last. So that if it is intended to offer evidence of former do- cross-ex- clarations of a witness, or of acts done by him, though not with a view amination to contradict his statement upon oath in examination in chief, but with °'-''^*'""'"y- a view of discrediting him as a corrupt witness; in this case also it has been determined 'that the witness should be previously questioned to such declarations, or such acts, on the cross-examination ;(/•) for in one case as well as the other an opportunity must be afforded the witness of explaining his conduct before evidence can be adduced to impeach bis credit by proof of the fact. Thus, where the witness's moral cha- racter is relevant to the issue, expressions of the witness may be proved without the previous inquiry, if they tend merely to disgrace the wit- ness by showing that he has made unbecoming declarations; but even if they be of such a nature the introductory question must not be dis- pensed with, if they tend likewise to contradict some part of the wit- ness's evidence. Therefore in an action for seducing the plaintiff's daughter, which the daughter proves, the defendant cannot give evidence that she has talked of another person as her seducer and the father of her child, unless she be first asked on cross-examination whether she ever used those expressions. (s) After a witness has been cross-examined respecting his former state- Re-cx- ments and declarations, for the purpose of affecting his credit, the couu- •'""'""f'""- sel who called him has a right to re-examine him so as to give him an opportunity of explaining such statements and declarations. Thus, if order to lay a foundation for the admission of such contradictory statements, and to enable the witness to explain them, and, as I conceive, for that purpo.se only, the wilties.s may be asked whether he ever said what is suggested to him, with the name of the person to whom or in whose presence he is supposed to have said it, or some other circumstance suilicient to desigmito the particular occasion. If the witness, on tlie cross-examination, admits llic con- versation imputed to him, there is no necessity for giving other evidence of it ; but if he says he does not recollect, that is not an admission, and you may give evidence on the other side to prove that the witness did say what is imputed, always supposing the statement to be relevant of the matter at issue. This has always been my practice, and if it were ;iot so you could never contradict a witness who said he could not remember." (q) The Queen's case, 2 Brod. & Bing.^" 311. j4 Pick. 439. Rice v. N. E. M. Ins. Co. 5 lb. 5G0. Ma.xwell v. Hardy.} (r) 2 Brod. & Bing." 311. (s) Carpenter v. Wall,c supra, 11 A. & E. 803. j- [Witnesses who testify as to what they saw respecting a transaction after night and by star-light, — aided by lamps upon the surrounding buildings, cannot be impeached by persons who propose to prove tluit tliey have made experiments on other nights, between the same hours and with the same degree of light;, and were unable to discern objects accurately. Seali/ v. The Slate, 1 Georgia, 220. On a trial for rape, the acts and declarations of the husband of the woman, on whom the ofiFencc is alleged to have been committed, arc not admissible to discredit the wife, examined as a witness. Stale v. Jefferson, G Iredell, N. C. 305. The mere fact that statements proved by one person to have been made by others who were present, is not a sufficient circumstance to discredit such person who is otherwise un- impeachcd. Clark v. I'ke Slate, 8 Humphreys, 671. It is competent to discredit a witness by proving that he was drunk at tiie time the transaction he attemj)ts to relate took place. The large quantity of liquor drank is a cir- cumstance tending to prove drunkenness, and as such is competent evidence to prove that fact. Fleming v. The Stale, 5 Humphreys, 564.] » Eng. Com. Law Reps. vi. 129. ^ lb. vi. 127. " lb. xxxiv. 234. 937 OF EVIDENCE. [bOOK VI. that Avliich the witness has stated in answer to the question on his cross- examination, arose out of the inquiries of the person with whom he had the conversation, the witness may be asked in re-examination what those inquiries were.(<) And he may also be asked what induced him to give to that person the account which he has stated in the cross-exami- nation. (m) But this, it should seem, is the limit of such a re-examination. Lord C. J. Abbott, in delivering his opinion in the Queen's case, said, " I *938 think the counsel has a right upon a re-examination, to *ask all ques- tions which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examina- tion, if they be in themselves doubtful j and, also, of the motive by which the witness was induced to use those expressions : but I think he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness."(v) His lordship afterwards observed, " I distinguish between a conver- sation which a witness may have with a party to the suit, whether criminal or civil, and a conversation with a third person. The conver- sations of a party to the suit, relative to the subject matter of the suit, are, in themselves, evidence against him in the suit, and, if a counsel chooses to ask a witness as to anything which may have been said by an adverse party, the counsel for that party has a right to lay before the court the whole which was said by his client in the same conversa- tion ; not only so much as may explain or qualify the matter introduced by the previous examination, but even matter not properly connected with the part introduced upon the previous examination, provided only, that it relate to Jhe subject matter of the suit; because it would not be just to take part of a conversation as evidence against a party, without giving to the party, at the same time, the benefit of the entire residue of what he said on the same occasion. But the conversation of a wit- ness with a third person is not in itself evidence in a suit against any party to the suit. It becomes evidence only as it may affect the cha- racter and credit of the witness, which may be affected by his ante- cedent declarations, and by the motive under which he made them ; but, when once all which had constituted the motive and inducement, and all which may show the meaning of the words and declarations has been laid before the court, the court becomes possessed of all which can affect the character or credit of the witness, and all beyond this is, in my opinion, irrelevant and incompetent. "(?(j) But the reasoning and the grounds of the supposed distinction have been since considered by the Court of Queen's Bench, and after full consideration, that court overruled the distinction, and adopted the more safe and intelligible principle that the office of re-examination is to be confined to showing the true colour and bearing of the matter elicited (t) 2 Brotl. & Bing.» 295. (u) Ibid. (v) 2 Brod. & Bing.i' 297. (w) 2 Brod. & Bing. 297, 298. The other judges, except Mr. Justice Best, agreed with the Lord Chief Justice ; but the Lord Chancellor and Lord Rcdesdale were of the same opinion with Mr. J. Best, and differed from the other judges, inasmuch as they thought that the entire conversation ought to be admitted, not as evidence of any fact that might be asserted in the course of it, but solely and simply as explanatory of the witness's motives, and as setting his character and credit in a fair, full, and impartial point of view. » Eng. Com. Law Reps, xxxiv. 120. '' lb. vi. 121. CHAP. V. § III.] OF IMPEACIITNa THE CREDIT OF WITNESSED. 938 by cross examination, and that new facts or new statements, not tend- ing to explain the witness's previous answers, ought not to be ad- mitted."(x) *Thus where an accomplice being cross-examined with a view to *93I' throw discredit on his testimony, confessed that he had committed two robberies the same night as the one charged in the indictment, and on re-examination it was proposed to ask him as to the particular circum- stances attending those robberies, and the persons in whose company they were committed, in order to show that the prisoners were the per- sons; Littledale, J., refused to allow it, observing that the cross-exami- nation having been only with a view to the witness's discredit, it was not competent to the counsel for the prosecution, on re-examination, to ask questions not arising out of such cross-examination, in order to cri- minate the prisoners. (//) 4lhly, The credit of a witness may be impeached by proof of his l. Hv general character."}" It is now completely settled with respect to this ''.'•?„'.;; ^ mode of discrediting a witness, that general evidence only, and not cvi-charucter. dence as to particular facts, can be employed ;(-~) for if it were allowable to give evidence of particular collateral facts to affect his credit, the in- quiry might branch out into an indefinite number of issues. Besides which, although a witness may be supposed capable of defending his general character, no man can come prepared to give an answer to par- ticular facts, which might be sworn against him to impeach his charac- ter, without any previous notice given to him.(fl)| The proper mode, therefore, of examining a witness, who is called to discredit a previous witness by proof of his character, is to ask whether the present witness has had the means of knowing the former witness's character, and whc- (x) 2 Phill. Ev. 443, citing Prince v. Samo,» 1 A. & E. G27, wiiere in an action for :» malicious arrest, a witness called for the plaintiff stated on cross-examination that the plaintiff had instituted a prosecution for pcrjurj' against a witness examined against Iiini in the action in which he had been arrested, and that the plaintiff had said tliat he had been remanded bj the Insolvent Debtors' Court ; on his re-examination it was proposed fo ask him whether the plaintiff liad not also on the trial of the indictment sworn, that tin- advance in question was a gift and not a loan ; and Lord Denman, C. J., ruled that tlii- question could not be put, and the court held that the ruling was right. (i/) Fletcher's case, 1 Lew. 111. (z) Rex V. Watson,!* 2 Stark. N. P. C. 149. Bull. N. P. 29G. 2 Phill. Ev. 4:J0. 1 t^tark. Ev. 2U. |IIicke v. Lightncw 11 Serg. & Rawle, 198.} (a) Bull. N. P. 296. f {An indictment against a witness for perjury and forgery, without trial and conviction, is not admissible to impeach his credibility. 2 "Wend. 555, Jackson v. Osborn. Conviction, by judgment in anotlier State or country, (which will not render a person incompetent out of that State or country,) may be shown, in order to affect his credibility. Commonwealth V. Knapp, 9 Pick. 396.| I {In Massachusetts, evidence is admissible for the purpose of discrediting a female wit- ness, that she is a comniOn prostitute. 14 Mass. Rep. 387, Commonwealth v. Murphy. contra, in New York, 13 Johns. 504, Jackson v. Lewis. See 3 Pick. 194. Commonwealth V. Moore. 1 Stark. Ev. 147, note (1).{ [New Ed. 185.] [Roscoe Dig. Cr. Ev. i;!5, n.] [Evidence that a female witness is a common prostitute is not admissible lor the purpose of impeaching her credibility. Commonwealth v. C/iurr/iiH-, 10 Metcalf, 538. On a trial for rape, the prisoner may give in evidence that the woman had been his con- cubine, or that he had been suffered to take indecent liberties with her. Sfatr v. Jffferton. 6 Iredell, N. C. 305. Defendant on trial for rape cannot give in evidence to prove that the woman is n strnni- pet, that she had criminal connection with one or more particular individuals. It is a ques- tion of character, and the evidence, as in other questions of character, must be of a general nature. Slate v. Jefferson, G Iredell, N. C. 305. To impeach a witness, the inquiry must be as to his character for truth and veracity, and » Eng, Com. Law Reps.xxxiv. 183. ^ lb. iii. 273. Vol. II.— 61 039 OF EVIDENCE. [bOOK VI. ther, from such knowledge he would believe him on his oath.(Z))f In order to answer this question negatively it is not necessary that the witness should ever have heard such person give evidence on oath, as the real question is whether the witness has such a knowledge of the person's character and conduct as enables him conscientiously to say that it is impossible to place any reliance on any statement that such person may make.(() It has been held upon an indictment for perjury that a witness for the defendant could not be asked whether, from bav- in if heard a witness for the prosecution give evidence on the trial of a former cause, he considered that the testimony of that witness could be relied on; nor whether he ever heard him commit perjury; nor whether he would not believe the witness because he had heard him commit per- jury; as the witness must speak from the general character.(fZ) Where upon an indictment for stealing money, it was opened on the part of the crown that an accomplice and one Mercer would be called as witnesses ; Parke, J., both before and after those persons were called, allowed the prisoner's counsel to ask the other witnesses for the prose- cution whether the accomplice and Mercer were not persons of very bad character. (on oath. Phillips v. Kingfield, 19 Maine, 3Y5. In impeaching the testimony of a witness, his general reputation for truth and veracity can only be inquired into, and no evidence of particular facts, and of his general reputation in other respects, can be given. Frye v. Bank of Illinois, 11 Illinois, 367. A witness, called to impeach the credibility of another witness, cannot be questioned as to the character of the latter in any respect, except as to veracity. Ukl v. The Common- wealth, 6 Gratton, 706. In evidence affecting the credibility of a witness, his reputation for truth and veracity, and not his general moral character, should be the subject of the questions. Neicman v. Mackin, 13 Smcdes k Marshall, 383. Carter v. Cavcnavgh, 1 Iowa, I7l. A party has a right to impeach the general character of a witness for his adversary, though the testimony which such witness had given related solely to the general character of another witness. Starks v. The People, 5 Denio, 106. Where a witness is impeached for previous bad character, evidence of statements, made before trial consistent with those made at the trial, may be given in his support. The State v. Dove, 10 Iredell, 469.] f {It is not essential that witnesses, who state that they would not believe another person on his oath, should ever have heard him give evidence upon oath. 4 Car. & Payne, 392, [Eng. Com.' Law Reps. xix. 437.] Rex r. Bisphani. See 1 Ptunsyl. Rep. 32, Chess v. Chess, et ah} ^ Eng. Com. Law Reps. xix. 437. ^ lb. xxiv. 410. ' lb. xxiv. 473. CHAP. V. § III.] OF IMPEACHING THE CREDIT OF WITNESSES. 940 cross-examine the witness as to his means of knowledge, and the grounds of his opinion ; or may attack his general character. (/) Where a witness on cross-examination stated that he had become bail for a witness who had been previously examined, and he believed it was on a charge of keeping a gaming-house; in order to prevent any impression being thereby made against the character of the previous witness, Gaselec, J., and Taunton, J., allowed the previous witness to be recalled, and asked whether the charge of keeping the gaming-house was in fact a true charge or not.(y)f A party cannot bring evidence to confirm the character of a witness Character before the credit of that witness has been impeached, either upon cross- ^^,^'^°p^'' examination, or by the testimony of other witnesses. (/A]; Thus, in a ported. , case where a witness for one party asserts one thing, and a witness for the other party asserts the contrary, and direct fraud is not imputed to either, evidence to the good character of either witness is not admissi- ble. («') But if the character of a witness has been impeached, (although, according to some authorities, upon cross-examination only,) evidence on the other side may be given in support of the character of the wit- ness by general evidence of good conduct. (A So in a case where two attesting witnesses to a will, which was impeached on account of fraud in procuring it, were dead, and a surviving attesting witness was called, and spoke to a fraudulent execution, it was held allowable to call evi- dence to the general good character of the deceased witness :(/i-) and Lord EUenborough, in approving of that decision, observed, that if they had been alive, they might have been produced, and their characters would have appeared on cross-examination; and being dead, justice required that an opportunity should be given of showing what credit was to be given to their attestation. (/) Wliether in answer to proof of statements made by a witness in variance to his testimony at the trial, (/) 1 Stark. Ev. 212. (See 7 Cowen, 2(J3, Lower y. Wiaters.} }g) Rex V. Noel,» 6 C. & P. 336. (A) Bishop of Durham v. Beaumont, 1 Campb. 207. 1 Stark. Ev. 221. (i) 1 Campb. 207. (J) 1 Stark. Ev. 221. Bate v. Hill,'' 1 C. & P. 100. Rex v. Clarke,' 2 Stark. X. P. C. 241, where the prosecutrix, upon an indictment for an attempt to commit a rape, iiaving been cross-examined as to having been sent to the house of correction on a charge of theft, evidence of her subsequent good conduct was admitted in support of tlie prosecution : cor. Plolroyd, J., but see Dodd v. Norris, 3 Campb. 519. {See 8 Pick. 154. Russell v. Coffin. j (fc) By Lord Eldou in Doe v. Stephenson, 3 Esp. 284. By Lord Kcnyon in Doe v. Walker, 4 Esp. 50. Provis v. Reed,'' 5 Bingh. R. 436. (l) 1 Campb. 210. f {Such evidence was held to be proper in 2 Hawks, 183, Johnson v. Patterson. And in Cooke V. Curtis, G Harris & Johns. 9.'!, prior declarations of a witness were held admissible to corroborate his testimony which had been contracted by another witness.} [Contradictory statements by a witness cannot be met by proof of others agreeing with his testimony. Ware v. Ware, 8 Greenl. 42. Jm-kmn v. Etz, 5 Cowen, 314. Nor can the witness be supported bj'- character. Rmxell v. Coffin, 8 Pick. 143.] I [A party is not entitled to give evidence of the general good character of his own wit- ness unless the character of the witness has been attacked by witnesses on the other side : and it is not enough to warrant proof of good character, that the witness had been dis- credited by proof contradicting portions of his testimony, and bj' evidence that had made declarations hostile to the party against whom he was called, and that the witness in hi.s testimony had denied making such statement. Stark'< v. The People, 5 Denio, lOG. Though, by the general rule, a witness cannot be supported by evidence of his general character as to truth, except after a general imi)earhraent of it ; yet where the witness is in the situation of a stranger, such evidence is admissilile without such previous impeachment. Merciam v. Hartford and New Haven Rail Road Co., 20 Connecticut, 354.] » Eng. Com. Law Reps. iiv. 427 '' lb. xi. 329 « lb. iii. 333. <• lb. XV. 490. 940 OF EVIDENCE. [BOOK VI. evidence may be given by the party who called the witness, that he affirmed the same thing on other occasions, and is still consistent with himself, is a point on which there are conflicting authorities. (m) The better opinion seems to be that such evidence is not admissible, except in cases where the counsel on the other side impute a design to misre- present from some motive of interest or relationship ; there, in order to repel such imjDutation, it may be proper to show that the witness made a similar statement at a time when the supposed motive did not exist, or when motives of interest would have prompted him to make a differ- ent statement of the facts, (n) * *941 If 3- pai'ty calls a witness to prove a fact, ho cannot, when he finds Party may the witness proves the contrary, give general evidence to *show that di"t h/s^*ow'ii ^^^ witness is not to be believed on his oath :(o) for that would be to witness by enable the party to destroy the witness if he spoke against him, and to proof of make him a good witness if he spoke for him, with the means in his racter; but hands of destroying his credit if he spoke against him.(p)f But if a he may 'witness gives evidence contrary to that which the party calling him ex- case by pects, the party is at liberty to make out his own case by other wit- other wit- nesses ; and to show that the facts which his own witness had stated nesses. contrary to his interests were otherwise -j^q) for such facts are evidence in the cause, and the other witnesses are not called directly to discredit the first witness, but the impeachment of his credit is incidental, and consequential only.(r) Still a party is not at liberty to setup so much of his witness's testimony as makes for him, rejecting and disproving so much ss makes against him.(s) Whether a Whether it be competent to a party to prove that a witness called by (m) Gilb. Ev. 135. Bull. N. P. 294. (?i) 2 Phill. Ev. 445. 1 Stark. Ev. 221. See also the opinion expressed by Bayley, J., in "Wihen v. Law,* 3 Stark. N. P. 0. 63. See also ante, chap. 1, s. 3. Of Hearsmj Evidence. (o) Ewer v. Ambrose,^ 3 B. & C. 750. Bull. N. P. 297. [See 3 Wash. C. C. Pep. 210. IT. S. v. Jones.] (p) Bull. N. P. 297. (q) 3 B. & C. 749, 750, 751. Friedlander v. The London Assurance Company," 4 B. & Ad. 193. Richardson v. Allan,'' 2 Stark. N. P. C. 334. Alexander v. Gibson, 2 Campb. 555. Particularly where the witness is forced on a party by law ; as, for instance, a subscribing witness to a will or deed. Thus in Lowe v. JolifFe, 1 W. Bl. 365, the subscribing witness to a deed swore to the testator's insanity; yet the plaintiff was allowed to examine other wit- nesses in support of his case, to prove that the testator was sane. So in Pike f. Badmering, cited in 2 Stra. 1096, where the three subscribing witnesses to a will denied their hands, the plaintiff was permitted to contradict that evidence. 4 Pick. 194, Brown v. Bellows, (r) Bull. N. P. 297. (s) 2 Campb. 556. f [A party cannot discredit his own witness or show his incompetency, though he may call other witnesses to contradict him as to a fact material to the issue, in order to show how the fact really is. FranMinBank v. The Steam Navigation Co. 11 Gill and Johns. 28. A party will not be permitted to impeach the character or testimony of his own witness by other testimony necessarily tending to that effect and for that purpose ; but having called a witness, who disproves his case, he is not thereby precluded from resorting to other evi- dence to support it. A party by calling and examining a witness, accredits him as compe- tent and credible, and is estopped from avowing the contrary. SlocJdon\. Dematli, 7 Watts, .^9. A party cannot give evidence to confirm the good character of a witness, unless hi.« general character has been previously impugned by the other party. Braddee v. Broivn- field, 9 Watts, 124. A party calling a witness may show by evidence that he was mistaken in some of his statements and conclusions, while in others he was correct. Ueulgen v. Parks, 2 Sandf. Sup. Ct. 60. It is not competent for a party to discredit a witness called and examined by him, by asking him whether he had not made statements upon another occasion contradictory to the testimony which he had given. The People v. Safford, 5 Denio, 112.] » Eng. Com. Law Reps. xiv. 163. '' lb. x. 457. " lb. xxiv. 47. '' lb. iii. 371. CHAP. V. § III.] OF IMPEACHING THE CREDIT OP WITNESSES. 941 him, who has given evidence against him, has made at other times apartymay statement contrary to that made by him at the trial, is a question on |',!j[',.y g*'j^"j_ which there has been some difference of opinion. Sucli a contrary ments statement, it is clear, can only be admitted, if admissible at all, for theP^'"'®*'^ f, ,. . . . , , ' ' his own purpose of neutralizmg or raising doubt and suspicion as to those parts witness, of the witness's testimony with which the contrary statement is at vari- ance. (/) In Wright v. Beckctt,(/<) which was an action of trespass, Wright v. the plaintiff, having called four witnesses to prove that the plaintiff and ^''''•'<'"- his predecessors had immemorially exercised acts of ownership over the place in question, called a fifth person with a view to establish the same fact ; he, however, contradicted the other four witnesses, and the plaintiff's counsel thereupon asked him whether he had not given a different account of the facts to the plaintiff's attorney two days before; this question was objected to on the gi-ound that its obvious tendency was to discredit the witness. But Lord Dcnman held that the question might be put. The witness gave an evasive answer to the question. The plaintiff's attorney was then called, and although the course was objected to, proved that the witness had given him, upon the occasion referred to, an account of the facts different from that given by him to the court, and that he took down in writing the account so given, and that he read it over to the witness, who said it was correct ; and this account he read to the jury. And the jury were told that they were not to look upon the statement given to the attorney as evidence of the facts therein stated; but only by way of neutralizing the effect of the evidence which the witness had unexpectedly given in court. And after argument, on a motion for a new trial, on the ground that the evidence of the attorney had *been improperly received, and time taken to de- *942 liberate. Lord Denman, C. J., held that the course adopted at the trial was correct; but Bolland, B., was of the contrary opinion. (it) And in an action on the warranty of a horse, where a witness, who was neces-Dunn v. sarily called by the plaintiff to prove a resale of the horse, although -'^s^^''- subpoenaed by the defendant, stated a great many facts on cross-exami- nation tending to show that the warranty had not been broken; Lord Denman, C. J., held that the plaintiff's counsel might ask the witness on re-examination whether ho had not been living with the defendant, and the defendant's witnesses, since he had been in the assize town; his lordship referred to the preceding case, in which he had expressed an opinion, formed after much consideration, that the plaintiff might show that the witness had given a different account of the matter, by which different account he had been induced to call him, and stated that he re- mained of the same opinion ; and thought, on the same principle, that a party calling a witness might examine him as to any fact tending to show that he had been induced to betray that party. (t;) But where, in order to prove a plea of fraud and covin in obtaining HoMs- a bond, the defendant called a witness who had taken part in civincr the iV"^''' ^'^ 111 •• -111 -^^-i Mnyor of bond, who on cross-exam mation said that the transaction of giving the Dartmouth bond was, as far as he knew, an honest and correct transaction, and on re-examination the defendant's counsel was allowed to ask the witness whether he had not told the defendant's attorney that it was a shameful transaction, which he denied, and the counsel then proposed to call the {t) 2 Phill. Ev. 450. («) Wright v. Beckett, 1 M. & Rob. 414. (m) See this case commented on with great ability, 2 Phill. Ev. 454, et scq. {v) Dunn v. Aslett, 2 M. & Rob. 122. 942 OF EVIDENCE. [BOOK VI. attorney, and asked him -whether he had so said ; and this was objected to. Parke, B., said, " Upon consideration, I think the evidence inad- missible. My doubt at first was, whether, as the fact was elicited in cross-examination, the witness was not made for this purpose the wit- ness of the plaiutiflF : and whether, as to this particular fact, not asked to in chief, the party calling him might not now show he had given a different account. I am now satisfied that it makes no difference that the fact is elicited on cross-examination. The effect and object of the evidence is to discredit the witness. It goes to his general credit to show that he has given a different account of the matter before ; and it is a clear rule that a party has no right to put a witness into the box as a witness of credit, and when he gives unfavourable evidence to call testimony to discredit h\m."(^w\ Winter V. And SO where a witness called for the plaintiff failed to prove the ^"'f- facts expected, and on cross-examination stated very important facts for the defendant, by whom she appeared also to have been subpoenaed, and it was proposed in re-examination to ask her as to a statement she had made to the plaintiff's attorney ; Erskine, J., said, " I am de- cidedly of opinion that you cannot ask the question. Mr. B. Parke has, I know, so ruled : and I recollect ruling the same way myself on the Oxford circuit, with the approbation of Mr. J. Patteson, whom I *943 consulted; and I have since talked with several *of the other judges on the point, and they are generally of opinion that Mr. B. Parke's de- cision is right."(x-) Farrs Where a witness, called on the part of the prosecution to prove that case. ]jg received the note, with the forgery of which the prisoner was charged, from the prosecutor, swore on his cross-examination that he went with the prisoner to the house of the prosecutor, with a blank paper, duly stamped, to get a bill accepted by the prosecutor, and that the prosecutor took the paper, and returned it to the prisoner with his name upon it; but this witness, before the committing magistrate, had merely stated that he received the bill from the prisoner ; the counsel for the prosecution stated that he was instructed that the fresh state- ment was untrue, and that he had witnesses to prove other statements made by the witness, to show that it was made in order to make the prosecutor pay the bill, and proposed to cross-examine the witness; Patteson, J., " I cannot allow you to do that ; he is your witness, and you must treat him as such."(y) So where a witness, called for the prosecution in a case of robbery, stated on cross-examination that the prosecutor had given her seven shillings, which she had previously denied, it was held that the counsel for the prosecution could not ask whether she had not said to A. B., that the prosecutor had not given her any money. (2) The judge The following case, however, shows that where a witness for the pro- (iv) Holdsworth v. The Mayor of Dartmouth, 2 M. & Rob. 153. His lordship said he never had any doubt but that the opinion of Bolland, B., in Wright v. Beckett was right, if the fact were asked to in the examination in chief. [x) Winter v. Butt, 2 M. & Rob. 357. The same question arose in Allay v. Hutchings, 2 M. & Rob. 358, and Wightman, J., ruled the same way. (y) Reg. V. Farr,» 8 C. & P. 768. The consequence was, the prisoner was acquitted. The witness was Wm. Griffiths, and he was himself convicted of forgery. Monmouth Spr. Ass. 1843, cor. Wightman, J. {z) Reg. V. Clayfield, Gloucester Spr. Ass. 1840, MSS. C. S. G. Gurney, B. ^ Eng. Com. Law Reps, xxxiv. 62. CHAP. V. § IV.] HOW MANY WITNESSES ARE NECESSARY. 943 secution gives a different statement on the trial from that which he gave may put in before the magistrate, the judge is warranted in directing his deposition git^on [|"" to be read in order to do away with the effect of llie statement made on a witness, the trial. Upon an indictment fur murder, the counsel for the prose- ^''° ?'*''* * ... ' * a contrary cution at first declined examining the prisoner s mother, but the judge stutouunt thought it right to have her examined, (her name being on the back of"'l ^^^ the indictment as having been examined before the grand jury,) which was accordingly done, and she gave her evidence in favour of the im- soner; the judge ordered her deposition before the coroner to be read, in order to show its inconsistency with her present testimony. And the twelve judges afterwards were of opinion, that the judge had a right to call for the deposition, in order to impeach the witness's credit; and Lord Ellenborough and Mansfield, C. J., thought tliat the prosecutor had the same right. (a) *SECT. IV. *944 Sow many Witnesses are Necessary. In general, the testimony of a single witness is a suflBcient legal Sin^lo ground for conviction of a crime or misdemeanor.faa) even though that ^''''"•^^^, . . ... ffenerally single witness may have been the accomplice in guilt of the accused sufficient, person. (/>) But there are two exceptions to this rule, viz., the cases of treason and perjury. The evidence of one witness is not sufficient to convict the defendant In case of on an indictment for perjury : as in such case there would be only one P^''-'"^^* oath against another, (c) In high treason, no one can be convicted, unless by the oaths and High trca- testimony of two witnesses, either both to the same overt act, or one of ^*^"' them to one, and the other of them to another overt act of the same treason : unless the party indicted shall willingly, without violence, in open court, confess the saine.((Z) The confession contemplated, is a confession in open court, or pleading guilty : any other confession, whether made to persons in authority or not, is evidence in the case, and must be proved, like other facts, by two witnesses, and it will have its weight with the jury according to the circumstances, as confessions have in all criminal cases. (c) However, by 39 & 40 Geo. 3, c. 93, "in Two wit- all cases of high treason, when the overt act allco-ed in the indict- "''•'""'* ""* ment is the assassination of the king, or any direct attempt against his in cases of life, or against his person, the prisoner shall be tried according to the P<^'"?onal same order of trial, and upon the like evidence, as if he stood charged thc^Kiug. with murder." (a) Oldroyd's case, Russ. k Ry. 88. See the cases on this subject, ante, p. 897. }aa) 4 Bla. Com. 357. 2 Hawk. c. 46, s. 3. \b) Post, p. 9G0. (c) Ante, p. G49. (d) By the 1 Edw. 6, c. 12, s. 22, 6 Edw. C, c. 11, s. 12. 7 & 8 Wm. 3, c. 3. In high trea- son concerniug the coin, or the king's seals, or sign manual, one witness was sufficient, as at common law, before the reign of Edward the Sixth ; by the 1 & 2 Ph. & M. c. 10, s. \2. and 1 & 2 Ph. & M. c. 11, s. 3, (now repealed). It was agreed iiy all the judges, that these statutes extended to all offences touching the impairing of coin, which should afterwards be made treason. Gahagan's case, 1 Leach, 42. 1 p]ast, P. C. 129, S. C. (e) 1 East, P. C. 131. Foster's Crown Law, 240, &c. 1 Phill. Ev. 415, 416. 944 OF EVIDENCE. [BOOK VI. Misprision In misprision of treason, as well as high treason, by the 1 Edw. 6, c. of treason. ^^^ g. 22, and 6 Edw. 6, e. 11, s. 12, two witnesses are required, unless the party arraigned shall willingly, without violence, confess the same. *945 *SECT. V. Hoio the Attendance of Witnesses is to he Compelled and Remunerated. Attend- There are two methods iu which the attendance of witnesses in ,-ince of ^ criminal cases may be compelled : 1st, which is the more ordinary and how com- effectual means, the justice or coroner that takes the examination of the pelled. persons accused, and the information of the witnesses, may at that time, or at any time after and before the trial, bind over the witnesses to ap- pear.(^a) 2ndly, by process of subpoena. By recog- Igt. If a witness does not appear, according to the terms of the re- luzance. cognizance in which he is bound, at the court at which the trial is in- tended to be, to give evidence against the party accused, the recognizance Misde- may be estreated, and the penalty levied. Justices have authority by T^Oeo. 4* c.*^® 7 Geo. 4, c. 64, s. 3, to bind all persons by recognizance to give evi- 64. dence in cases of misdemeanors, in like manner as in cases of felony. If a witness who has been examined before a justice of the peace refuses Witness to be bound over, the justice may commit him. (6) And where the wit- for^efusing ^^^^ ^^^ ^ married woman, and therefore under a legal disability to to enter enter into a recognizance, the justice was held justified in committing her "■'^ancT""' "P^'^ ^^^ refusal to appear to give evidence or to find sureties for her appearance, (c) By sub- 2nd. The attendance of witnesses, if they have not entered into re- cognizances, may be compelled by process of subpoena, which may either be issued from the Crown Office, ((/) or may be made out by the clerk of ^\^^°' I' *^^ peace of the sessions, or the clerk of assize. (e) And by the 45 Geo. 3, c. 92, s. 3, the service of a subpoena on a witness in any one of the parts of the United Kingdom, for his appearance upon a criminal prose- cution in any other of the parts of the same, shall be as effectual as if it had been in that part where he is required to appear. Service of The prosecutor ought not to include more than four persons in one ■ subpoena. (/) And as soon as the writ is obtained, a copy should be made out for each witness, and served on him personally, and at the same time the writ should be shown him.(^) The service must be per- sonal, and made a reasonable time before the day of trial ; for witnesses ought to have a convenient time to put their own affairs in such order, that their attendance on the court may be of as little prejudice to them- selves as possible. (^) [a) 2 Hale, P. C. 282. 1 Geo. 4, c. 64, ss. 2, ?,, 4. {h) 2 Hale, P. C. 282. Bennet v. Watson, 3 M. & S. 1. (cj Bennet v. Watson, supra. (d) Rex v. Ring, 8 T. R. 585. [e) 1 Chit. C. L. G08. It is more prudent to sue it out of the crown office, if an applica- tion for an attachment for non-attendance is likely to become necessary. See post, p. 947. (f) Doe V. Andrews, Cowp. 845. Tidd, 855. Iff) In order to save expense, it is settled that service of a ticket, containing the substance of a writ, will be as effectual as service of the writ itself. 2 Phill. Ev. .373. (h) 2 Phill. Ev. 373. CHAP. V. § v.] HOW ATTENDANCE IS TO BE COMPELLED. *946 *If a witness have in his possession, any deeds or writings which it -"Subpoena is deemed necessary to produce at the trial, there should be a special ^.^'^^j'^*'*" clause inserted in the subpccn;!, called a (hires tecum, commanding the witness to bring them wuth him.(t) The writ o( subpana duces tecum is the regular and established process of the court ; and though it was formerly doubted, yet it is now settled, that this process is of compulsory obligation on the witness, to produce the deeds or writings required of hiui, which he has in his possession, and which he has no lawful or reasonable excuse for withholding; of the validity of which excuse the court, and not the witness, is to judge. (/) And a person in possession of any paper, who is served with a subpccna duces tecum, is bound to produce it, whether the paper belong to him or not, or though there be a regular way prescribed by law for obtaining it.(/t) The court, how- ever, in all such cases, will exercise their discretion in deciding what papers shall be produced, and under what qualifications as respects the interest of the witness. (?)f A person bringing papers under a suhpaMa duces tecum may be compelled to produce them without being sworn. (m) If a witness who is sworn to give evidence has a document in his pos- session in court, he may be compelled to produce it; for he is just as much under the control of the court, as if he had brought the docu- ment under a suhpama duces teciim,{ii\ In a criminal case, if a person is in court, he may be compelled to Person be examined as a witness, although he has neither been bound by re- P/"®'''^' "' cognizance nor served with a subpoena to give evidence, and an indict- ment for the obstruction of a public footway is considered as a criminal prosecution for this purpose, (o) When a witness is in custody, or on board a ship under the com- Hahcaa cor- mand of an officer who refuses to permit his attendance, the subneena jg;*"* «'?'«'"'- ineffectual, and a habeas corpus ad testificandum is necessary to bring him up ; for which an application may be made to any one of the Judges or Barons of the Courts of King's Bench, Common Pleas, and Exchequer, in England or Ireland, who have discretionary power to grant it to any part of the United Kingdom, to bring a witness before any court of record, to be examined before such court, or any grand, petit, or other jury, in any cause or matter, civil or criminal. (;;) And every justice of great ses.sion in Wales, and in the county palatine of (i) 3 Phill. Ev. 3tl. (;) Amey f. Long, 9 East, 473. 2 Phill. Ev. 371. {k) Tidd, 856. Corscn v. Dubois,=' Holt, N. P. C. 239. (/) Tidd, 85G. 2 Phill. Er. 371. It will be observed, that there is a distinction between the obligiition of a witness to answer, though it may subject him to a civil responsibility, and the obligation to produce writings under a snbpo'na. See ante^ p. 910. If a suhptvna duces tecum be served, the party must bring his deeds in obedience to the subprcna ; but if he states them to be his title deeds, no judge will ever compel him to produce them. Picker- ing V. Noycs,"* 1 B. & C. 263. Rex v. Hunter,<= 3 C. & P. 591, and MSS. C. S. G. [in) Davis v. Dale, "J M. & Malk. 514, Tindal, C. J. Rex v. Murlis, ibid., note, Gaselee, J., and Taunton, J. {n\ Snelgrove v. Stevens," 1 C. & Mars. 508, Cresswell, J. (o) Rex V. Sadler,f 4 C. & P. 218, Littled.ile, J. Ip) 43 Geo. 3, c. 140. 44 Geo. 3, c. 102. 2 Phill. Ev. 374, 375. f {See 5 Cowen, 153, 419, Utica Bank v. Halliard, that neither a clerk in a bank, nor a chashier, is boumi to i)roduce the books of the bank, on a duces tecum, where the bank is a party. The clerk has no possession of the books; and the cashier is excused, because no party is obliged to furnish evidence against himself} » Eng. Com. Law Reps. iii. 86. '' lb. viii. 72. <= lb. xiv. 591. "^ lb. xix. 410. e lb. xli. 278. ( lb. xix. 218. 946 OF EVIDENCE. [book VI. '947 Subppona Chester, has the like authority within the limits of his jurisdiction.f*^) The application for this writ must be made upon an affidavit sworn Uj *by the party applying, stating that the party is a material witness, and willing to attend ;(r) and if he be at a distance, it should be shown how he is material, (s) The writ being sued out, should be left with the sheriff, or other officer, in whose custody the witness is detained, who will bring him up, upon being paid his reasonable charges. (^?) If a wit- ness be a prisoner of wax-, a habeas corpus will not lie to bring him up, but an order from the secretary of state must be obtained. (m) At common law, a defendant in capital cases has no means of com- for prison- pgi^ing the attendance of witnesses without the special order of the court ;(i') although in misdemeanors the defendant has always been allowed to take out subpoenas. (if) But the 7 Wm. 3, c. 3, s. 7, pro- vided, that in cases of high treason, where corruption of blood might be worked, the persons indicted shall have the like process of the court where they shall be tried, to compel their witnesses to appear for them , as is usually granted to compel witnesses to appear against them : and since the 1 Anne, st. 2, c. 9, s. 3, by which it is provided that witnesses for the prisoner, in case of treason or felony, shall be sworn in the same manner as witnesses for the crown, and be subject to the same punish- ment for perjury, the process by subpoena is allowed to defendants in cases of felony as well as in other instances, (ic) If a party having been served with a subpoena, neglect to appear in obedience to it, an application may be made to the Court of Queen's Bench, if the subpoena issued from the Crown Office, for an attachment against him -Jy) and where the process is served in one part of the United Kingdom for the appearance of the witness in another of the parts, the court issuing the same may, upon proof to their satisfaction of the due service of the subpoena, transmit a certiorari of the default of the witness, under the seal of the court, or under the hand of one of the justices thereof, to the Court of King's Bench if the service were in England, to the court of Justiciary if in Scotland, and to the Court of King's Bench in Ireland if in Ireland ; which courts are empowered to punish the witness in the same way as if he had disobeyed a subpoena issued out of those courts, provided the expenses have been tendered. (2) It has been doubted whether in all cases, as well as in those within the last mentioned statute, a witness may not lawfully refuse to obey a sub- poena in a criminal prosecution, as well as a civil suit, unless he has a tender of his reasonable expenses : but the better opinion seems to be, that witnesses making default on criminal prosecutions are not ex- empted from attachment, on *the ground that their expenses were not tendered at the time of the service of the subpoena ; although the court Remedy against person ne glecting to appear on subpoe na. Expenses need not be tender- ed. *948 (?) Ibid. (r) Rex V. Roddam, Cowp. 672. 2 Phill. Et. 374. (s) Tidd, 858. It is said in 1 Chitt. C. L. 610, that the affidavit of readiness to attend only applies when the party is on board ship, and not then in all cases. (i) 2 Phill. Ev. 375. (m) Furley v. Newnham, 2 Dougl. 419. (?') 4 Bla. Com. 359. 2 Hawk. c. 46, s. 170. If they had attended they could not have been sworn before the 1 Anne, st. 2, c. 9, s. 3. iw) 2 Hawk. P. C. c. 46, s. 170. {x) 2 Hawk. P. 0. c. 46, s. 172. (j/) Rex V. Ring, 8 T. R. 585. And a witness who refuses, after being subpa?naed, to attend to give evidence for a defendant, is liable to an attachment in the case of being, subpoenaed by a prosecutor. 1 Stark. Ev. 86. {2) 43 Geo. 3, c. 92, ss. 3, 4. 1 Chit. Cr. L. 614. It is said to be doubtful whether the justices at sessions, &c., have authority to issue an attachment, and that the only mode of proceeding against a witness in such a case is by indictment. Archb. C . L. 161. CHAP. V. § v.] ATTENDANCE OF WITNESSES, HOW REMUNERATED. 948 would have good reasou to excuse them for uot obeying the summons, if in fact they had not the means of defraying the necessary expenses of the journey. («) Formerly the law provided no means for reimbursing the witnesses on Attcndunce criminal prosecutions. At length, by the 27 Geo. 2, c. 3, 18 Geo. 3, c. ^o,"!)' j°^u. 19, and 58 Geo. 3, c. 70, in cases of felony, certain provisions were made Derated, for that purpose. These, however, did not extend to cases of misde- meanors ; but now by the 7 Geo. 4, c. 64, s. 22, (repealing the above mentioned statutes) it is enacted, " that the court, before which any Courts may person shall be prosecuted or tried for any felony, is hereby authorized '"'*^*'[ ^^^' and empowered, at the request of the prosecutor, or of any other per- expenses in son, who shall appear on recognizance or subpoena to prosecute or give "'} fi^ses of evidence against any person accused of any felony, to order payment unto the prosecutor of the costs and expenses, which such prosecutor shall incur in preferring the indictment, and also payment to the prose- cutor and witnesses for the prosecution, of such sums of money as to the court shall seem reasonable and sufficient to reimburse such prose- cutor and witnesses for the expenses they shall have severally incurred in attending before the examining magistrate or magistrates and the grand jury, and in otherwise carrying on such prosecution, and also to compensate them for their trouble and loss of time therein; and, although no bill of indictment be preferred, it shall still be lawful for the court, where any person shall, in the opinion of the court, bond fide have at- tended the court in obedience to any such recognizance or subpoena, to order pajment unto such person of such sum of money as to the court shall seem reasonable and suj05cient to reimburse such person, for the expenses which he or she shall have bond fide incurred by reason of at- tending before the examining magistrate or magistrates, and by reasou of such recognizance or subpoena, and also to compensate such person for trouble and loss of time; and the amount of the expenses of attend- ing before the examining magistrate or magistrates, and the compensa- tion for trouble and loss of time therein, shall be ascertained by the certificate of such magistrate or magistrates, granted before the trial or attendance in court, if such magistrate or magistrates shall think fit to grant the same; and the amount of all the other expenses and compen- sation shall be ascertained by the proper officer of the court, subject nevertheless to the regulations to be established in the manner hereinaf- ter mentioned." *Aud by sec. 23, after reciting that for want of power in the court to *949 order payment of the expenses of any prosecution for a misdemeanor, In ceruiu {a) 2 Phill. Ev. 283 ; but see 1 Chit. Cr. L. 613. At York Summer Assizes, 1820, Bayley, J., ruled that an unwilling witness, who required to he paid before he gave evidence, could not demand it. He said, " I fear I have not the power to order you your expenses." And on asking the bar if any one recollected an instance, Scarlett answered, " It is not done in criminal cases." MS. 1 Chetw. Burn, 1001. In Reg. v. Couscns, Gloucester Spr. Ass. 1843, "\Vip:htman, J., directed an officer of the Ecclesiastical Court, who had brought a will from London under a subpoena duces tecum, to go before the grand jury, although lie objected on tlie ground that his expenses had not been paid. In Rex v. Cooke, an indictment for a con- spiracy removed into the King's Bench by certiorari, a witness called by the defendant stated before he was examined, that at tlie time he was served with a subpoena, no money was paid him ; he therefore asked that the judge would order the defendant to pay liim his expenses before he was examined. Park, J. A. J., having consulted with Garrow, B., said they were of opinion that the judge had no power in a criminal case to order a defendant to pay a witness his expenses although subpoenaed, and though the indictment came to be tried as a civil record. 1 C. & P.» 321. » Eng. Com. Law Reps. xi. 408. 949 OF EVIDENCE. [BOOK VI. cases of many individuals are deterred by tlie expense from prosecuting persons ™'^'^^' "•uiltv of misdemeanors, it is further enacted, " that where any prose- cutor or other person shall appear before any court on recognizance or subpoena, to prosecute or give evidence against any person indicted of any assault with intent to commit felony, of any attempt to commit felony, of any riot, of any misdemeanor for receiving any stolen pro- perty knowing the same to have been stolen, of any assault upon a peace officer in the execution of his duty, or upon any person acting in aid of such officer, of any neglect or breach of duty as a peace officer, of any assault committed in pursuance of any conspiracy to raise the rate of wages, of knowingly and designedly obtaining any property by false pretences, of wilful and indecent exposure of the person, or wilful and corrupt perjury, or of subornation of perjury ; every such court is hereby authorized and empowered to order payment of the costs and expenses of the prosecutor and witnesses for the prosecution, together with a com- pensation for their trouble and loss of time, in the same manner as courts are hereinbefore authorized and empowered to order the same in cases of felony ; and although no bill of indictment be preferred, it shall still be lawful for the court, where any person shall have honH fide at- tended the court, in obedience to any such recognizance, to order pay- ment of the expenses of such person, together with a compensation for his or her trouble and loss of time, in the same manner as in cases of felony ; provided, that in cases of misdemeanor the power of ordering the payment of expenses and compensation shall not extend to the attendance before the examining magistrate." («)f 4 & 5 Wm. The Central Criminal Court Act, 4 & 5 Wm. 4, c. 36, s. 12, enacts 4, c. 36, s. ^|j|3^(; CI it shall be lawful for any two of the said justices and judges of oyer and terminer and of gaol delivery to order and direct the costs and expenses of prosecutors and witnesses, in all cases where prosecutors *950 and witnesses may be by law entitled thereto, to *be paid by the trea- surer of the county, in which the offence of any person prosecuted would have been tried but for this act ; and that every such treasurer, or some [a) Sec. 24, provides that the order for the payment of the expenses shall be made out by the clerk of the assizes, &c., and paid by the county treasurer ; and sec. 25, provides how the expenses shall be paid in places not contributing to the county rate. Sec. 26, empowers the Courts of Quarter Sessions to make regulations as to the rate of costs and expenses. Sec. 2Y,empowersthe judge of the Courtof Admiralty in felonies and misdemeanors of the de- nominations before mentioned, committed upon the high seas, " to order the assistant to the counsel for tlie affairs of Admiralty to pay such costs, expenses, and compensation to prosecutors and witnesses, in like manner as other courts, may order the treasurer of the county to pay the same." The Municipal Corporation Act, 5 & 6 Wm. 4, c. 76, s. 113, provides that all sums directed to be paid by virtue of the V Geo. 4, c. 64, in respect of felonies and misde- meanors committed, or supposed to have been committed, in any borough in which a sepa- rate Court of Quarter Sessions shall be holden, shall be paid out of the borough fund ; and the order of the court shall be directed to the treasurer of the borough. Sec. 114, provides for the treasurers of counties keeping accounts of the expenses of prosecutions of offenders sent from boroughs for trial at the assizes, and for the payment of them by the boroughs. As to the construction of this section, see Reg. v. Johnson, 10 A. &B. 740. The 2 & 3 Vict. c. 82, which provides for the trial of offenders in detached parts of counties, by sec. 2, pro- vides for the treasurers of counties keeping an account of the expenses of prosecutions, in detached parts of counties, and for the payment of the same by the county to which the de- tached parts belong. The 5 & 6 Vict. c. 98, ss. 18, 19, and 20, contains also provisions for the payment by boroughs of the expenses of the prosecution of borough prisoners, confined in county gaols, and for the manner of paying the expenses of the conveyance and mainten- ance of such prisoners. •)• {In New York, witnesses for the defendant, in a prosecution for a misdemeanor, are not bound to attend the trial unless their fees are paid as in civil causes ; otherwise, as to pro- secutions for felony. 4 Cowen, 49, Chamberlain's case.} CHAP. V. § v.] ATTENDANCE OF WITNESSES, HOW REMUNERATED. 950 known agent, sliull attend the said justices and judges of oyer and ter- miner and gaol delivery during the sitting of the court, to pay all such orders." The 7 Geo. 4, c. 64, contained no provision for the payment of costs l Vict. c. in cases of disposing of the dead bodies of children with intent to con- j,^ ' fgnJeg ceal their birth ; but now by the 1 Vict. c. 44, s. 1, it is enacted, " that in cases of where any pro.sccutor or other person shall appear before any court on "")'^*"j- recognizance or subpoena, to prosecute or give evidence against any per- couccjiling son upon any charge of having so endeavoured to conceal the birth of'!'" '''"■''' ''' . • children. any child, every such court is hereby authorized and empowered, whe- ther any bill of indictment for such charge shall or shall not be actually preferred, to order payment of the costs and expenses of tlie prosecutor and witnesses for the prosecution, together with a compensation for their trouble and loss of time, in the same manner as courts arc now by law authorized and empowered to order the same in cases of prosecutions for felony." And by sec. 2, " every order for the payment of any mo- ney by virtue of this act, shall be made out and delivered by the proper officer of the court unto such prosecutor or other person, upon the same terms and in the same manner in all respects as orders for the payment of costs are now made in cases of felony ; and the treasurer or other persons, when any such order shall be made, shall be and he is hereby required upon sight of such order, forthwith to pay to the person therein named, or to any one duly authorised in that behalf, the money in such order mentioned ; and such treasurer or other person shall be allowed the same in passing his accounts." The following cases relative to the allowance of costs under these statutory provisions, may properly be introduced in this place. A party bound over by the sessions to prosecute at a superior court A binding is entitled to his expenses under the 7 Geo. 4, c. 64. The prosecutor ^j^n/ig^^^' was bound over by the Court of Quarter sessions for Surrey, to prose- suDicient. cute for a burglary at the Central Criminal Court, and it was held that he was entitled to his expenses. (6) Where the prosecutor and his witnesses had been bound by recogni- f'-'-^;*'-^ •" zance to prosecute and give evidence at the assizes, but by a mistake gog^g i,avo the prisoner had been discharged by proclamation at tlie adjourned ses-been al- sions, which preceded the assizes ; and the prosecutor and his witnesses "'^*' ' had appeared at the assizes and preferred an indictment, which had been found by the grand jury ; Taunton, J., held, that as the bill had been preferred and found, he might, under the word " prosecuted," in sec. 22, order the expenses ; but if the witness had merely appeared at the assizes according to their recognizances, and no bill had been pre- ferred he should have had no authority. (c) Where a prisoner who was committed on a charge of felony during the assizes, did not reach the assize town until after the grand jury was discharged ; Hullock, B., after reference to the statute, allowed their expenses. ((/) *Where an indictment for a riot was found at one assizes, and the *051 trial took place at the subsequent assizes, but no person was bound over ^^ '""'"^ t''*^" to prosecute at these assizes, but the witnesses were subpoenaed to ap-t^r was pear at both the assizes; the Court of King's bench were clearly of "ot bound (b) Rex V. Paine,* T C. k P. 135, Lord Deainan, C. J., Park, J. A. J., and Rolland, B. (c) Rex V. Robey,'' 5 C. & P. 552. [d) Anonymous, 1 Lew. 128. »Eng. Com. Law Reps, xxxii. 4G8. '' lb. xxiv. 452. 951 OF EVIDENCE. [book VI. by recog nizance. Sheerinf case. Butter- wick's case. Where not allowed. opinion that the judge had authority to order the ccsts of the witnesses to be paid ; but it was doubted whether the judge had authority to grant the prosecutor his costs. (^] But where the prosecutor in a case of per- jury, was not bound over to prosecute by any magistrate, but he had included his own name in a subpoena, which he had caused to be issued, the court were of opinion that the words of the act did not I'imit the al- lowance of the expenses of the prosecutor to those which he incurred as a witness, but that he was entitled to receive them in his character of prosecutor ; and they made an order accordingly. (/) Where the prisoner had been apprehended by a bench warrant, and the prosecutor was under no recognizance to prosecute, and none of the witnesses were under recognizances, but one of them had been sub- poenaed; on a motion for the costs of the prosecution, Parke, B., at first, thought that he could only grant the costs of the witness who had been subpoenaed, but said he would consider the point ; and on the following day his lordship said, that on comparing the words of the 7 Geo. 4, c. 64, s. 22, (relating to felonies,) with those of the subsequent section (re- lating to misdemeanors,) it appeared to him that the court had autho- rity, in prosecutions, for the former class of offences, to award the prose- cutor his costs, even though he is not under any recognizance ; and his lordship accordingly granted the costs of the prosecution generally, in- cluding the witnesses- (x t\ Oate?, mentioned in R. k M. C. C. R. 175. In Rex ?». Elli?, convicted at nisipriiis, at Exeter, in 182G, for a felony committed before the 7 Geo. 4, c. til, was in operation, and whilst the .58 Geo. 3, c. 70, was in force, the Conrt of King's Bench made a rule absolute, ordering the cit^- and county of Exeter to pay the expenses. The 7 Geo. 4, c. 64, was in force at the time of the trial. R. & M. C. U.'ll. l7.'J. See Rex v. The Treasurer of the County of the City of Exeter, infra, where the court seems to have been of opinion that the costs had been improperly allowed in this instance and to have overruled this case. (/f) Rex r. The Treasurer of Exeter, 5 M. k Ry. 167. Littledale, J., added, "even the juilge has no power where the case has been removed by certiorari. Tliere is no difference in substance between an indictment removed b}' the prisoner and an indictment removed by tlie prosecutor." '• The act only applies to indictments tried before the courts in which they were found." (/) Rex )'. Ricliards,' 8 B. & C. 420. It is not stated that the prosecutor or the witnesses attended the (ria! under subpoena or recognizance. hn) Supra. (w) Supra. (o) Reg. V. ,•> 8 A. & E. 589. Sec this case, a7iie, p. 951. (p) Rex I'. Rees,-^ 5 C. & P. 302. (q) Rex I'. Taylor,-! 5 C. & P. 301. Tlic C, k 1 Win. 4, c. 89, however, after, by sec. 1. pro- viding that the coroner may summon medical witnesses, and liy sec. 2, tiiat a majority of the jury may require the coroner to summon additional medical witnesses, if the first are not satisfactory, enacted by sec. 3, that legally qualified practitioners attending in obedience to » Eng. Com. Law Reps. xv. 253. •> lb. xxxv. 46G. "^ lb. xxiv 331. <* Ibid. 953 OF EVIDENCE. [book VI. Extra ex- penses al- lowed un- der parti- cular eir- ciunstan- ces. Expenses of •' other- wise car- rying on the prose- cution." Where a witness was brought to bed during her attendnnce under a recognizance at the assizes, Parke, J., allowed her the diffcit nee between the expenses, which would have been incurred had she been at home, and those actually incurred in the assize town ;fr) and so where a wit- ness, who had come to the assizes at York, under a recognizance to give evidence in a case of forgery, became insane, and it was thought neces- sary to convey him to the lunatic asylum at Wakefield ; Patteson, J., upon the authority of the preceding case, ordered a similar allowance as to the expenses of medical attendance during the time the witness remained at York after he was attacked; and also for the expenses of conveying him to the asylum at Wakefield. (s) Where, in a case of murder, it appeared that the oflPcnce was com- mitted in a small township, the inhabitants of which were a small com- munity, and extremely poor, and had shown great zeal and activity in getting up the case, and had been put to considerable expense in so doing, which they were but ill able to afi'ord, the court was applied to, that certain expenses might be allowed over and above those usually allowed by the oflicer of the court, and it was submitted that the words " in otherwise carrying on the prosecution" were sufficiently large to in- clude the expenses applied for; Lord Denman, C. J., after time taken to consider, granted the application, and the clerk of assize made out the order for all the expenses incurred, except the attendance of the witnesses before the coroner, (i) *In one case it was said that when a trial for felony is postponed, the practice is not to allow the prosecutor his expenses, till the assize at which the trial comes on, and the expenses were in that case refused at the assizes at which the trial was postponed. («) But where the coroner had bound over the prosecutor and witnesses to appear at the assizes to give evidence in a case of manslaughter; but the prisoner who had nei- ther been apprehended, nor was under recognizance, did not appear at the assizes ; Alderson, B., after ordering him to be called, and directing the trial to be put off till the next assizes, allowed the expenses of the such summons, should receive such remuneration and fees as were siiecified in the schedule to that act, which were in Great Britain, to be paid out of the funds collected for the relief of the poor ; but by sec. 4, no fee is to be paid if the examination takes place without the order of the coroner; or by sec. 5, where the death was in any hospital, infirmar}^, &c. By the 1 Vict. c. 68, s. 1, the justices of the peace at quarter sessions, and the town council of any borough having a coroner, are to make a schedule of the fees to be paid by the coroner holding an inquest (other than the fees payable to medical witnesses under the 6 & T Wm. 4, c. 89.) Sec. 2 repeals so much of the 6 & 7 Wm. 4, c. 89, as relates to the payment of the fees to medical witnesses out of the funds raised for the relief of the poor, and provides that the coroner shall pay them; and by sec. 3, the coroners of counties are to lay their accounts before the quarter sessions, and the coroners of boroughs to lay them before the town council, and the coroner is to be repaid in the former case out of the county rates, and in the latter out of the borough fund. It may be proper to observe that it is the bounden duty of a coroner, wherever the death has arisen under such circumstances as lead to the con- clusion that the party has died from the criminal acts of another, to cause a. post mortem ex- amination of the body to be made by some medical practitioner. In Reg. v. Webb, Hereford Spr. Ass. 1843, on an indictment for murder by violence inflicted upon the head, no post mortem examination had taken place, and Wightmau, J., commented in strong terms on the great impropriety of neglecting such a course, and observed, that it was clearly the duty of a coroner to order such an examination to take place. A bill is now pending in Parliament for the better allowance of expenses incurred upon holding inquisitions before coroners. C. S. G. (i-) Anonymous, cited 1 Lew. 133. (.s) In Re Mallison, 1 Lew. 132. \t) Lewen's case, 2 Lew. IGl. The depositions taken before the coroner were allowed for. (m) Rex i\ Hunter," 3 C. & R. 591, Park, J. A. J. » Eng. Com. Law Reps. xiv. 469. *954 Cases where the trial has been post- poned. CHAP. V. § v.] ATTENDANCE OF WITNESSES, HOW REMUNERATED. 954 prosecutor and witnesses. (r) So in a case of murder, which was post- poned until the following assizes, on the application of the prisoner, and in which the costs of the prosecution were very heavy ; Aldcrson, B., made an order for their payment. (jt?) The 7 Geo. 4, c. G4, s. 27, " for the better remuneration of persons 7 Geo. 4. r. who have been active in the apprehension of certain offenders," enacts. ^'*' ^- ^'^- Courts that " where any person shall appear to any court of oyer and terminer, ,„ay or.l. r gaol delivery, superior criminal court of a county palatine, or court of *^"'|'P*^"- grcat sessions, to have been active in or towards the apprehension of any (hoT^wljo person charged with murder, or with feloniously and maliciously shoot- Imvc brcu ing at, or attempting to discharge any kind of loaded fire-arms at any "^"''^'° '" f -I II- . . . , , •' tlie npprc- other person, or with stabbing, cutting, or poisoning, or with adminis-hcuMon of taring anything to procure the miscarriage of any woman, or with rape, ccrtjiin of. or with burglary or felonious house-breaking, or with robbery on the person, or with arson, or with horse-stealing, bullock-stealing, or sheep- stealing, or with being accessory before the fact to any of the offences aforesaid, or with receiving any stolen property, knowing the same to have been stolen ; every such court is hereby authorized and empowered in any of the cases aforesaid, to order the sheriff of the county, in which the oflPeuce shall have been committed, to pay to the person or persons, who shall appear to the court to have been active in or towards the apprehension of any person charged with any of the said offences, such sum or sums of money as to the court shall seem reasonable and suffi- cient to compensate such person or persons for his, her, or their ex. penses, exertions, and loss of time in or towards such apprehension ; and where any person shall appear to any court of sessions of the peace to have been active in or towards the apprehension of any party charged with receiving stolen property, knowing the same to have been stolen, such court shall have power to order compensation to such person in the same manner as the other courts hereinbefore mentioned ; provided always, that nothing herein contained shall prevent any of the said courts from also allowing to any such persons, if prosecutors, or wit- nesses, such costs, expenses, and compensation, as courts are by this act empowered to allow to prosecutors and witnesses respectively. "(,r) By sec. 30, if any man shall happen to be killed in endeavouring to *955 apprehend any person who shall be charged with any of the offences If any ma a hereinbefore last mentioned, it shall be lawful for the court *bcfore |f^'^/,I|p',V" whom such person shall be tried to order the sheriff (tf the county to ing to tak- pay to the widow of the man so killed, in case he shall have been mar- *!*''"''"" "*" . . . ... . follUlTS. ried, or to his child or children, in case his wife shall be dead, or to his the court father or mother, in case he shall have left neither wife nor child, such "^'"X °'^'^^' sum of money as to the court in its discretion shall seem meet ; and tion to tin- the order for payment of such money shall be made out and delivered ti>) They cannot plead this in bar to an indictment again.st them, nor can they avail themselves of it as a defence on their trial, though it may be made the ground of a motion for putting off the trial, in order to give the prisoner time for an application in another quarter. (<•) And if an ac- complice, after being received as a witness against his companions, breaks the condition on which he is admitted, and refuses to give full and fair information, he will be sent on trial to answer for his share of guilt in the transaction. ((Z) It is not a matter of course to admit an offender *as a witness on the trial of his associates, not even after he *959 (; (a) Rox V. RikUI, si/pra, n. [z). 1 Phill. Ev. 82. (/>) It)id. The equitable claim to pardon does not protect an accomplice from prosecu- tions for other oU'ences, in which he was not concerned with the pri.^oner, but it is entirely in tlie discretion of the judjije whether he will recommend the prisoner to mercy. Ilex c. Lee, Russ. & Ry. C. C. R. 3(31. Rex v. Brunton, ibid., 454. 8. (J. MS. Burn's .Just, by Chetwynd, tit. Approver. With respect to such offences, therefore, he is not bound to .answer on his cross-ex.amination. West's case, MS. 1 Phill. Ev. 28. If, however, the prisoner hav- in8. The judges will not in general admit an accomplice as king's evidence, if it ap- pear that he is charged with any other felony than that on the trial of which he is to be a witness. This case was stated by Park, ,J. A. J., in sever.al cases on the Oxford Spring Cir- cuit, 1826, Carr. Grim. L. 67. It has been held in America that if an accomplice appears to have been the princip.al offender, he will be rejected. The People v. Whipple 9 Cowen, 707, Greenl. Ev. 426 ; but in England principals have frequently been allowed to become witnesses .against accessories. See Wild"s cusc, post, p. 9G0, note [m). And cases frequently occur where the accessory is far the more guiffy part_y ; as where young persons have been induced to commit crimes by the procurement of old offenders, and in such cases the J'oung persons are not unfrequently admitted as witnesses for the crown. C. S. G. (c) 1 Phill. Ev. 28. (fl) Ibid. Moore's case, 2 Lew. 37. In one instance, a prisoner who had maile a confes- sion after a representation made to him by a constable in gaol, that liis accomplices had been taken into custody, which was not the fact, and who, after having been admitted as a wit- ness against his associates, on a charge of mtiliciously killing sheep, ujjon the trial denied all knowledge of t^ subject, was afterwards tried and convicted upon his confession. Rex r. Burley, cor. Garrow, B., Leicester Lent Assizes, 1818. And the conviction was afterwards approved of by all the judges. MS. 2 Stark. Ev. 13. {Commouweultli i\ Knai)p, 10 Pick. 478.} So where an accomplice, when sworn, pretended that he knew nothing of the steal- ing of a sheep, Coleridge, .1., committed him for trial at the next .assizes, when he was con- victed and transported, upon proof of his statement mnde to a policem.an, before he was called as a witness. Reg. v. Smith, Gloucester Spr. and Sum. Ass. 1841. So where an accomplice, who was called as a witness .against several prisoners, gave evidence which showed tliat all, except one, who was apparently the leader of the gang, were present at a robbery, but refused to give any evidence as to that one being present, and the jury found all tlie j)risoners guilty ; Parke, B., thinking tlie accomplice had refused to state tliat the jiarticular ])risouer was present in order to screen him, ordered the accomplice to be kept in custody till the next .assizes, and then tried for tlie robbery. Rex v. Stokes and others, Stafford Spr. Ass. 1837. It has been held in America, th.at if an accomplice, having made a private confession, upon a promise of pardon made by the Attorne3--Geucral. should after- wards refuse to testify, he may be convicted upon the evidence of that confession. Con- monwealth ?>. Knapp, 10 Pick. 477, as cited Greenl. Ev. 426. And where an accomplice, who had made a full disclosure of the facts attending the commission of a burglary when before the committing m.agistrate, refused before the grand jury to give any evidence .at all, Wightman, J., ordered his n.ame to be inserted in the bill of indictment, and he was con- victed on his own confession. Reg. v. Holtham and five others, Stafford Spr. Ass. 1843. 959 OF EVIDENCE. [bOOK VI. Mode of has been so allowed by the committing magistrate. The practice is? an accom- (whore the accomplice is in custody,) for the counsel for the prosecution plice as a to uiovo that the accomplice be allowed to go before the grand jury, witness. pledging his own opinion, after a perusal of the facts of the case, that his testimony is essential. (e) And it is in the discretion of the court, under all the circumstances of the case, whether the application be granted or refused. ^/H This application is usually made before the bill is taken before the grand jury, and if the application is granted, the accomplice is not in- Wherehe eluded in the indictment; but where he has been included with his con- iudicte/ federates in a joint indictment, he may still be used as a witness with the consent of the court.(^) Upon an indictment for conspiracy the court allowed an acquittal to be taken against some of the defendants in order that they might be called as witnesses for the prosecution. (A) And the same course may be adopted, with the permission of the court, in a case of felony. (*') Upon an indictment for rape, as soon as the jury were sworn, it was proposed, on the part of the prosecution, that one of the prisoners should be acquitted before the case was gone into, as he was intended to be called as a witness against the other prisoners, and upon this being objected to, on behalf of the other prisoners; Williams, J., (having conferred with Alderson, B.,) said, "1 had little doubt as to the course I ought to take, and my learned brother entirely agrees with me that this is a matter very much of ordinary occurrence. In cases of this kind the court, if it sees no cause to the contrary, is in the habit of relying on the discretion of the counsel who conduct the (fi) 2 Stark. Er. 2. If, however, the accomplice be carried before the grand jury, by means of a surreptitious and illegal order, the indictment so found is good. Doctor Dodd's case, 1 Leach, 155. It is not usual to admit more than one accomplice. Barnsley Rioters' case, 1 Lewin, 5, Parke, J. But under peculiar circumstances three have been admitted. Scott's case, 2 Lew. 36, Lord Denman, C. J. In this case the accomplices spoke to different facts, and no one could prove the whole. See Rex v. Noakes,* 5 C. & P. 326. (/) 1 Phill. Ev. 29. The court usually considers not only whether the prisoners can be convicted without the evidence of the accomplice, but also whether they can be convicted with his evidence. If, therefore, there be sufficient evidence to convict without his testi- mony, the court will refuse to allow him to be admitted as a witness. So if there be'no reasonable probability of a conviction, even with his evidence, the court will refuse to admit him as a witness. Thus where several prisoners were committed as principals, and several as receivers, but no corroboration could be given as to the receivers, against whom the evi- dence of the accomplice was required : Gurney, B., refused to permit one of the principals to become a witness. Rex v. Mellor and others, Stafford Sum. Ass. 1833. So in Reg. v. Saunders and others, Worcester Spr. xVss. 1842, on a motion to admit an accomplice, Patte- son, J., said, " I doubt whether I shall allow him to be a witness ; if you want him for the purpose of identification, and there is no corroboration, that will not do." And in Reg. v. Salt and others, Stafford Spr. Ass. 1843, where there was no corroboration of an accomp- lice, Wightman, J., refused to allow him to become a witness. C. S. G. (g) I Phill. Ev. 29. [h) Rex V. Rowland,'' R. & M. N. P. R. 401. So if an accomplice jointly indicted with others, plead guilty, and is fined by the court, and pays the fine (in a case where such fine may be imposed by way of punishment, and where the suffering the punishment restores the competency), he may be called as a witness by the other prisoners. 1 Phill. Ev. 29, citing Rex v. Fletcher, 1 Str. 633. See also Rex v. Sherman, C. T. H. 303. (i) 1 Phill. Ev. 29. f [A person accused of the crime of murder, and jointly indicted with others for that offence, was not put upon his trial, but was used by the State's Attorney as a witness on the trial of the others, who were convicted and executed. In giving his testimony he did not in any way admit that he participated in the commission of the murder. Neither did it appear in his petition by him filed for a writ of habeas corpus, that he was guilty or had been convicted of any crime. Held, that he was not in a condition to avail himself of the rights and privileges of an accomplice. £z parte Bird, 3 Gilman, 134.] * Eng. Com. Law Reps. xxiv. 342. ^ lb. xxi. 411. CIIAP. V. § VI.] OF ACCOMPLICES. ' 969 prosecution. I shall, therefore, in this case, intrust it to the discretion *of the counsel whether he will have the prisoner ac((uitted before the *900 case is gone into or not. I think it almost of course. 'Y^) It may be proper to observe that it is ti»e duty of magistrates in all cases where there maybe an intention to call an accomplice as a witness for the prosecution, to commit and not to bail him.(/t) In prosecutions for a misdemeanor in receiving stolen goods, on the Principa repealed statute 22 Geo. 3, c. 58, the principal felon, though not con- '^^1"" '^ victcd or pardoned, was a competent witness against the receiver.(A So the {)riii(;ipal i'vhm may be a witness under the 4 Geo. 1, c. 10, s. 4, against a party indicted for taking a reward to help to stolen g<>ods.(7?i) So on an information under 2 Geo. 2, c. 24, (h) for bribery at an election, Infonna- a person who has received a bribe may be a witness ajjainst the defen- f'"" '"'' , . , ^ bribery, dant, though in case of a conviction he would be indemnitied from the penalties of the act.(o) It being established that an accomplice is a competent witness, the Accom- consequenoe is inevitable, that if credit be given to his evidence, it re- P'"'^"'^''' *^^'- quires no confirmation from another witness. (^j) And therefore, in „i^,nc ^uffi- strictness, if the jury believe the evidence of an accomplice, they may cient in legally convict a prisoner upon it, though it stands totally uncorrobo- j^°^°*^j,° ^ j^ rated. ((/) But from a consideration of the situation of an accomplice, practice this doctrine has been rrreatly modified in practice ; and it has lone; been f"'"''';''^''"- •11 lli< -ll n '"'" '* '^^" considered as a general rule of practice that the testimony of an accom- ways plice ought to receive confirmation, and that unless it be corroborated ''comrMi in some material part b}' unimpeachable evidence, the presiding judge ought to advise the jury to acquit the prisoucr.^^y^jf It has been laid (j) Reg. I'. Owen,* 9 C. «fc P. 83. At the conclusion of tlie opening, the prisoner was fvsked whether he would give evidence, and refused, and the c;isc proceeded against all the prisoners. See 2 Hawk. P. C. c. 45, s. Of). Uc) Rex V. Beardmore," 7 C. & P.497, Patteson, J. {l) Ante, p. 253. (wi) See ante, p. 2G2. Jonathan Wild's case, 1 Leach, 17, note (a). (w) Ante, vol. 1, p. 155. (o) Bush V. Rawlins, cited by Lord Mansfield in Clarke v. Shec, Cowp. 199. Mead v. Rob- inson, Willes, 422. (p) By Lord EUenborough in Rex v. Jones, 2 Campb. 133. Ilex v. Hastings,'^ G C. & P. 152, Lord Denman, C. J., Park, J., and Alderson, B. [g) Rex I'. Atwood, 1 Leach, 4G4, also cited in Grose, J., in Jordaiuc v. Lashbrook, 7 T . R. G09. Rex v. Durham, 1 Leach, 478. (f/q) 1 Phill. Ev-. 31. Smith and Davis's case, 1 Leach, 479, in note (a) to Durham's case. They were tried for robbing George Hunter. During the night the prosecutor wa.s attacked by four rutiians, whose persons be was unable to identify ; but during the skullie he had torn a piece of the coat which one of Ihem had on, who on being discovered by tlii.s means turned king's evidence, and implicated the two prisoners. But the court, although it was admitted as an established rule of law that the uncorroborated testimony of an ac- complice is legal evidence, thought it too dangerous to suffer a conviction to take place on his unsupported testimony, and the prisoners were acquitted. See per Lord Abingcr, C. B. in Rex v. Farler, post, p. 964. f [It is competent for a jury to convict a person charged with the commission of a crimo on the testimony of an accomplice alone ; but the court will advise the jury to acquit unless such testimony is corroborated by other evidence. Commonwealth v. Bosworth, 22 Pick. 397. The corroborative testimony in such case must relate to some portion of llie testimony of the accomplice which is material to the issue. n)id. The testimony of an accomplice will, if the jury are fully convinced of its trutb, warrant the conviction of the defendant, though it be uncorroborated by other testimony. The Peo- ple v. Costello, 1 Denio, 83. While the evidence of an accomplice is to be weighed with great jealousy and distrust by • Eng. Com. Law Reps, xxxviii. 44. ••. lb. xxxii. 599. * lb. xxxii. 475. 960 OP EVIDENCE. [book VI. dovvu that this practice of requiring some confirmation of an accomplice's cviJeuce, must be considered in strictness as resting only upon the dis- cretion of the judge. (/•) And this, indeed, appears to be the only mode in which it can be made reconcilable with the doctrine already stated, that a legal conviction may take place upon the unsupported evidence of an accomplice. But it may be observed that the practice in question *961 has obtained so much sanction from legal authority, that it "deserves all the reverence of law,"(s) and a deviation from it in any particular case, would be justly considered of questionable propriety.(<) This con- firmation need not extend to every part of the accomplice's evidence, for there would be no occasion to use him at all as a witness, if his nar- rative could be completely proved by other evidence, free from suspicion. But the question is, whether he is to be believed upon points which the confirmation does not reach. And if the jury find some part of his evi- dence satisfactorily corroborated, this is a good ground for them to be- lieve him in other parts, as to which there is no confirmation. (w) So far all the authorities agree; the only point on which any difierence of opinion has been supposed to exist, relates to the particular part or parts of the accomplice's testimony which ought to be confirmed. (t;) Corrobo- In some cases it seems to have been considered that if the accomplice ration as confirmed as to some of the prisoners, though not as to all, it was to some but • i , i • ^^ i i • i • not as to sufficient to entitle the accomplice to credit, and to warrant the judge m all the leavino; the case to the iury without a recommendation to acquit those iirisoner.s •> •' _ i .•onsidered prisoners as to whom there was no confirmation. Accordingly, where .sufficient an accomplice was examined on the part of the prosecution, who was oimery. gQ^fi^.^^^3^| [^ ^j^g testimony which he gave as to some of the prisoners, (;•) 1 Pliill. Ev. 32. By Lord Elleuborough, Rex v. Jones, 2 Camp. 132. Rex v. Durham, Ktt/ii-(i, note (q). (s) Per Lord Abinger, C. B., in Reg. v. Y&v\er, post, p. 964. (/) 1 PhilL Ev. 32. In GreenL Ev. 42G, the learned author observes, that it is now so i;-euerally the practice to advise juries not to convict without corroboration of the accom- plice, " that its omission, would be regarded as an omission of duty on the part of the judge." It is well observed that "the substantial result appears to be the same as if the jiractice had depended upon a rule of law, instead of being only the exercise of the discre- tion of the judge." The only distinction ajDpears to be that if the judge were to submit a case of this nature to the jury without any such recommendation, and a conviction ensued; or if a jury were to convict in opposition to the recommendation of the judge, it could not properly be said in either case, consistently with the authorities on the subject, that the conviction would be illegal. 1 Phil Ev. 32. (m) 1 Phill. Ev. 34. 2 Stark. Ev. 14. [v) 1 Phill. Ev. 34. :; jury, yet his c?Trfii?7/V^ belongs exclusively to them. Keithler \. The State, 10 Smedes & Marshall, 192. An accomplice who testifies to the defendant's guilt cannot be permitted, with a view to sustain his testimony, to narrate other instances of crime proposed to him by defendant, tliough made at the same time and in the same conversation. Kinchelow v. The State, 5 Humphreys, 9. The evidence of an accomplice, when submitted to the jury, with proper cautions as to its credibility, is for the jury to weigh ; and they if they please may act on it without corro- borative evidence. State v. Brown, 3 Strobhart, 508. Though aparticeps crindnis is not an incompetent Avitness, the court should instruct the jury not to convict of felony on his uncorroborated testimony; and such corroboration should be in facts tending to establish the guilt of the accused. \Yhen the accused is found guilty on the uncorroborated testimony of an accomplice, it afibrds good cause for a new trial. Ray v. The State, 1 Iowa, 316. One charged as an accomplice was proved to have been concerned in the commission of (he felony for which the prisoner was indicted. After the proof corroboration of his tes- timony as an accomplice, it was held competent to prove any act or declaration of his which went to show that he and the prisoner did committ the felony. Slate v. Ford, 3 Strobhart, SlV.] CHAP. V. § VI.] OF ACCOMPLICES. ' 962 l)ut qot as to the rest; Bayley, J., told the jury, that if they were satis- fied by the confirmatory evideiice which had been given, that the ac- complice was a credible witness, they might act upon that testimony with respect to others of the prisoners, although as far as his evidence alTccted them, it had received no confirmation ; and all the prisoners were convicted. («•) To the same eifeet is a case mentioned by Lord Ellenborough, in Rex v. Jones,(.r) as having been within a few years referred to the twelve judges, where four men were convicted of bur- glary on the evidence of an accomplice, who received no confirmation concerning any of the facts which proved the criminality of one of the prisoners; but the judges were unanimously of opinion, that the con- viction of all four was legal, and upon that opinion they all suffered the sentence of the law.(^) So in the report of the York trials under a special commission, il was laid down by Thompson, C. B., that "confir- mation need not be of circumstances, which go to prove that the accom- plice speaks truth *with respect to all the prisoners, when several are *962 tried, and with respect to the share they have each taken in the transac- tion ; for if the jury are satisfied that he speaks truth in those parts in wiiich they see unimpeachable evidence brought to confirm him, that is a ground for them to believe that he speaks also truly with regard to the other prisoners, as to whom there may be no confirmation. "(^r) Upon these cases it has been well observed, that " it would be diflBcult to assign a satisfactory ground for requiring confirmation as to a prisoner indicted alone, and dispensing with confirmation as to prisoners jointly indicted ; the same reasons, which render confirmation necessary in the former case, appear to require it in the latter : if a distinction between the two cases were to be allowed, a prisoner's acquittal or conviction upon an accomplice's testimony might depend upon the mere accident of his being indicted alone or jointly with others. "(«) Upon an indictment for larceny, the counsel for the pro,secution, in nastings's stating the case, said that he should call an accomplice as a witness, and*^"^°' admitted that he should not, according to the depositions, be able to confirm his testimony as to the particular prisoners charged ; yet he could confirm him as to the general circumstance of the case, and as to the mode in which the robbery had been committed. Lord Denman, C. J., said, in the presence of Park, J. A., and Alderson, B., "I con- sider, and I believe my learned brothers agree with me, that it is altogether for the jury, and they may, if they please, act upon the evi- dence of the accomplice without any confirmation of his statement. But one would not, of course, be inclined to give any great degree of credit to a person so situated." The accomplice was examined and several other witnesses, but the other witnesses rather contradicted than confirmed him in anything, and the prisoners were acquitted. (i) (w) Rox ?).. Dawbcr,* 3 Stark. N. P. C. 31; in note (a) to which the learned reporter re- marks, that in judjfinfc of the credit due to the testiraonj' of an accomplice, it .seems to be a necessary principle, that his testimony must be wholly received as thatofa credible witnesss, or wholly rejected. (x) 2 Camph. 133. {;/) So in IJirkett's case, Russ. & Ry. C. C. R. 251, the judges were of ojjinion -'that an ac- complice did not require confimation as to the person he charged, if he was confinned in the particulars of his story." This is the whole statement in the report. C. S. G. (z) Ilex V. Swallow, report of the trials at York, in 1814, cited 1 I'liill. Ev. 35. (a) 1 Phill. Ev. 37, 8th ed. (b) Rex I'. Hastings,'' 7 C. & P. 152. This case is stated to be "distinct decision'' to the * Eng. Com. Law Reps. xiv. 153. '' lb. xxxii. 145. 962 OF EVIDENCE. [book VI. But the rule now is that where there is one prisoner there must be confir- mation as to him, and where there are several as to each. Webb's case. Corrobo- ration as *963 to the cir- cumstan- ces of the case insuf- ficient. Dyke's case. But it is now well established by the current of recent authorities, thai it is not sufficient to corroborate an accomplice as to the facts of the case generally, but that he must be corroborated as to some mate- rial fact or facts which go to prove that the prisoner was connected with the crime charged. And where several persons are jointly indicted, and the accomplice is corroborated as to some of them, although the jury may give credit to him as those to whom the corroboration applies, they ought to be directed to pay no attention to the evidence of the accomplice as to those against whom there is no corroboration. Upon an indictment for breaking into a warehouse and stealing a quantity of cheese, an accomplice proved that the thieves took a ladder from certain premises, and it was proved by a witness that the ladder was so taken away, and it was proposed to call other * witnesses to con- firm the accomplice, as to the mode in which the felony was committed. Williams, J., <' You must show something that goes to bring home the matter to the prisoners. Proving by other witnesses that the robbery was committed in the way described by the accomplice, is not such con- firmation as will entitle his evidence to credit, so as to affect other per- sons. Indeed, I think it is really no confirmation at all, as every one will give credit to a man who avows himself a principal felon, for, at least, knowing how the felony was committed. It has been always my opinion, that confirmation of this kind is of no use whatsoever."(c) So where the prisoner was indicted for stealing a lamb, and an accomplice proved that he assisted the prisoner in stealing the lamb, but the only evidence to confirm his statement was that of a witness, who found the skin of the lamb in the field where the lamb had been kept; it was held that the confirmation was insufficient; and upon its being submit- ted that there was evidence to go to the jury, and Rex v. Hastings, ((/) being cited as showing that the confirmation of the accomplice need not be as to the party accused ; Gurney, B., said, <' Although in some instances, it has been so held, you will find that in the majority of re- cent cases it is laid down that the confirmation should be as to some matter which goes to connect the prisoner with the charge. I think that it would be highly dangerous to convict any person of such crime on the evidence of an accomplice, unconfirmed with respect to the party accused." (c/c/) The corroboration ought to be as to some fact or facts, the truth or falsehood of which go to prove or disprove the offence charged against the prisoner. Upon an indictment for murder, it appeared that a party of poachers were found in the night in a wood, and that the deceased, who was an assistant keeper, and others pursued them, and tried to ap- prehend them; upon which one of the poachers turned round and shot the deceased ; and an accomplice was called to prove that the prisoner was the person who shot the deceased; and other witnesses were called extent " that it is not necessary to have cini/ confirmation of an accomplice," note 7 C. & P. 153. It is submitted that all that the learned chief justice intended to say was, that in point of law the jury might act upon the unconfirmed testimony of an accomplice, but that in point of fact the jury, as reasonable persons, ought not to give credit to a person so situ- ated. It must be presumed that this was the meaning of the observation, as it was made in the presence of the two learned judges, who have so often expressed opinions to that effect. In this view the observation is in perfect harmony with all the more recent authori- ties. The report does not state in what way the case was left to the jury. C. S. G. (c) Rex V. Webb,* 6 C. & P. 595. The prisoners were acquitted. (d) Ante, p. 9G2. [dd) Reg. v. Dyke,'' 8 C. & P. 261. » Eng. Com. Law Reps. xxv. 55G. ^ lb. xxxiv. 381. Addis's case. The cor- roboration should go to prove the offence against the prisoner. CHAP. V. § VI.] OF ACCOMPLICES. 963 who corroborated bim as to collateral facts; but none of those facts went to connect either the prisoner and the accomplice together, or the prisoner with the transaction. Palteson, J., '< The corroboration of an accomplice ought to be as to some fact or facts, the truth or falsehood of which goes to prove or disprove the offence charged against the pri- 6oner."(e) The corroboration must not only connect the prisoner and the accom- Farlor'a plice together, but must be such as to show that the prisoner was t;n- 'pijgj.^^, gaged in the transaction, which forms the subject matter of the charge roboration under the investigation. Upon an indictment on the 9 Geo. 4, c. 09, "I!r'''A'^ or > 7 ancct the 8. 9, for night poaching, it was proved that three persons were found idc-niity of in a wood by night in the pursuit of game, and an accomplice, who was ""^ P'""'y taken on the spot, swore to the prisoner being one of the persons in the .md con- wood, but the only corroboration of his statement was, that the prisoner "^*'t '''™ had been seen on the night in question, drinking with the accomplice at ,.ri,ne a public house, which was *four miles from the preserve, and that they charged. were there till the public house shut up, when they left together; but *964 it also appeared that the prisoner was in the habit of drinking at the same public house, and lived within one hundred and fifty yards of it. Upon the opening of the case, Lord Abingcr, C. B., said, < Eug. Com. Law Reps. xxv. 452. 964 OF EVIDENCE. [book VI. Wilkes's case. The dis- tinction is between confirma- tions as to the cir- cumstances of the offence and those which go to fix the person charm d. ^965 all the rest depends on tlie evidence of the accomplice. The danger is, that when a man is fixed, and knows that his own guilt is detected, he purchases impunity by falsely accusing others. I would suggest to you that the circumstances are too slight to justify you in acting on this evidence. "(/) " There is a great diiference between confirmations as to the circum- stances of the felony and those which apply to the individuals charged; the former only prove that the accomplice was present at the off'ence; the latter show that the prisoner was connected with it. This distinc- tion ought always to be attended to."(^) Wilkes and Edwards were charged with stealing a lamb, and an accomplice proved the case against both the prisoners, and stated that they threw the skin of the lamb into a whirley hole, the situation of which he described ; and a constable proved that he found the skin in the whirley hole. A quantity of meat was found of a kind corresponding with that of the ^stolen lamb in the house of Edwards, but could not be positively identified, and a witness proved that Wilkes bad come to him to borrow a pair of shears, and had then made a statement to him to the same effect as the evidence of the accomplice. Alderson, B., said, in summing up, "The confirmation of the accomplice as to the commission of the felony is really no con- firmation at all ; because it would be a confirmation as much if the ac- cusation were against you and me, as it would be as to those prisoners who are now upon their trial. The confirmation, which I always ^^dvise juries to require, is a confirmation of some fact, which goes to fix the guilt upon the particular person charged. You may legally convict on the evidence of an accomplice only, if you can safely rely upon his tes- timony; but I advise juries never to act on the evidence of an accom- plice, unless he is confirmed as to the particular prisoner who is charged with the offence. With respect to Edwards it is proved that meat of a similar kind was found in his house. The meat cannot he identified; but it is similar : that is therefore some confirmation of the accomplice as to Edwards, more than any one else. It is also proved that the skin was found in a whirley hole ; that is no confirmation, because it does not affect the prisoners more than it affects any other persons. With respect to Wilkes, it is proved by the witness, that he told him nearly the same story as the accomplice has told you to-day. If you, believe that witness, there is confirmation as to Wilkes. You will say whether, with these confirmations, you believe the accomplice or not. If you think that this evidence is not sufiiciently confirmed as to one of the prisoners, you will acquit that one ; if you think he is confirmed as to neither, you will acquit both : and if you think that he is confirmed as to both, you will find both guilty. "(/i) Upon an indictment for receiving a sheep knowing it to have been stolen, an accomplice proved that a brother of the prisoner and himself had stolen two sheep, one a large, the other a small one, and that the brother gave one of them to the prisoner, who carried it into the house in which the prisoner and his father lived ; and the accomplice stated where the skins were hid ; on the houses of the prisoner's father and the accomplice being searched, a quantity of mutton was found in each, which had formed- parts of two sheep corresponding in size with those Birkett's case. Finding mutton in the prison- er's house, corres- ponding with that which was lost. . (/) Reg. V. Farler,* MSS. C. S. G. 8 C. & P. lOG. Iff) Per Alderson, B., Rex v. Wilkes, mfra. * Eng. Com. Law Reps, xxxiv. 314. [h) Rex V. Wilkes," 7 C. k P. 272. " lb. xxxii. 507. CHAP. V. § VI.] OF ACCOMPLICES. 965 stolen; and the skins were found in the place named by the accomplice. Patteson, J., "If the confirmation had merely gone to the extent of confirming the accomplice as to matters connected with himself only, it would not have been sufficient. For example, the finding the skins at the place at which the accomplice said they were, would have been no confirmation of the evidence against the prisoner, because the accom- plice might have put the skins there himself. But here we have a great deal more ; wc have a quantity of mutton found in the house in whicli the prisoner resides, and that I think is such a confirmation of the accomplice's evidence as I must leave to the jury."(^/) It has been held, that confirmation by the wife of an accomplice is ronfirma- no confirmation at all. Upon an indictment for stealing a sheet, it ^^Vj" ^^ ^'^'^ appeared that the sheet was found in the house of the accomplice, iiceoiniilie.--. *who gave evidence to prove that the prisoners stole the sheet, and *9GG the wife of the accomplice was the only person to confirm the ac- complice's statement; Park, J. A. J., "Confirmation by the wife, is in a case like this, really no confirmation at all. The wife and the ac- complice must be taken as one for this purpose. The prisoners must be acquitted. "(j) Where a principal and receiver are jointly indicted, and an accom- Confirmfi- plice is confirmed as against the principal, but not as against the re- 'l^clpai' ceiver, this is not sufficient to support the case against the receiver. The but none two Moores were indicted for stealing, and Spindlo for receiving some "^^'' /''^ ducks, and an accomplice proved that the Moores and himself went to the house of Spindlo, at Wantage, and sold him the stolen ducks, at the same time telling him from whom they had been stolen, and a witness proved that he saw the accomplice at Wantage in company with the Moores. Alderson, B., "The corroboration you should have is a cor- roboration respecting Spindlo. Confirming the evidence of the accom- Confirma- pliee as against the Moores does not advance the case as against J.gp"i"prs Spindlo." (/^) So confirmation as to the receivers, without confirmation but none against the principal, is insufficient. One prisoner was indicted for steal- ";" ''jP'''"- ing, and two other prisoners for receiving, several pairs of shoes, know- ing them to have been stolen, and the only witness to prove the felony was an accomplice, and she also proved the case against the receivers ; she was confirmed as to the latter, but there was no conformation what- ever as to her testimony against the principal ; it was objected that even as to the receivers the confirmation was not sufficient in itself; but if it was, it would still be necessary to confirm the witness as against the principal ; for if the case failed against her, the receivers would be en- titled to an acquittal. Littledale, J., " The confirmation as to the re- ceivers is slight ; but as there is no confirinatiou against the jtriucipal felon, I think the case fails altogether ; there ought to be confirmation (/) Reg. V. Birkett,* 8 C. & P. 732. The prisoner was acquitted. Assumingtliat tlie con- firmation in this case showed the prisoner to have been connected with the transaction, the fact of his being the receiver and not the principal seems to have been wholly uncorrobora- ted. C. S. G. (j) Re.x r. Neal,'' 7 C.